In response to a petition for rehearing en banc before the Ninth Circuit Court of Appeals in a dispute over the adequacy of Peru as an alternative forum in a case involving claims by indigenous people that a U.S. oil company discharged pollutants into the waterways they used for drinking, fishing and bathing, dissenting and concurring opinions reveal a split on whether the court had jurisdiction to decide the forum non conveniens question if one of the plaintiffs, the only domestic plaintiff, lacked standing. Carijano v. Occidental Petroleum Corp., No. 08-56187 (9th Cir., decided May 31, 2012).
In June 2011, a Ninth Circuit panel determined that while the district court “correctly assumed” that the domestic plaintiff, a non-profit that works with indigenous people and helped make a documentary about the alleged pollution, had standing, the court failed to properly consider all relevant inconvenient forum factors in dismissing the suit and thus remanded the case for further proceedings. The panel and en banc Ninth Circuit majority refused to reconsider the matter.
Ninth Circuit Chief Judge Alex Kozinski, joined by four other jurists, forcefully argued that Article III standing is a threshold matter central to subject matter jurisdiction and faulted the panel for resurrecting “hypothetical jurisdiction” to reach the forum non conveniens issue. According to the dissenters, by “assuming jurisdiction, the panel gives itself license to write a precedential opinion on a difficult forum non conveniens question, based on the hypothesis that Amazon Watch has standing and its interests can be weighed in the forum non analysis. Federal courts have no authority to opine on other issues when their jurisdiction has been seriously called into question; their obligation is to remain silent on those other issues until the jurisdictional issue has been put to rest. That the district court may eventually dismiss Amazon Watch for lack of standing will not undo the precedent written by the panel based on its incorrect assumption that Amazon Watch has standing.”
Three concurring judges started their opinion with “Whoa!!! The Chief has put the proverbial cart before the horse.” They contend that the Ninth Circuit panel simply concluded that the “district court abused its discretion when it dismissed this action under the forum non conveniens doctrine. This was, by definition, ‘a non-merits ground for dismissal.’ Occidental is free, on remand, to renew its motion to dismiss on the ground that Amazon Watch may not have standing to asserts its claim under California’s Unfair Competition Law, and, should the district court dismiss Amazon Watch, Occidental may once again seek to dismiss the case on forum non conveniens grounds.” According to the concurring opinion, standing cannot be resolved on the bare pleadings, “which is all we have before us given the procedural posture of this appeal.” The concurrence also notes that under U.S. Supreme Court precedent a “’district court has discretion to respond at once to a defendant’s forum non conveniens pleas, and need not take up first any other threshold question,’ including jurisdiction.”
According to the concurring opinion, standing cannot be resolved on the bare pleadings, “which is all we have before us given the procedural posture of this appeal.”