9th Circuit Blocks Human Rights Suit Against Caterpillar

Four years ago a peace activist from Olympia was killed by an Israeli bulldozer that was razing a Palestinian home. Her family -- and the families of 16 Palestinians who were killed or injured -- sued Caterpillar, the manufacturer of the bulldozer, for abetting human rights violations. Corrie family suit blocked by judges, Seattle Times, Sept. 18, 2007.

The case is Corrie v. Caterpillar, Inc., No. 05-36210 (9th Cir. Sept. 17, 2007), available on the 9th Circuit website.

Civil procedure geeks (and I mean that in a good way) might be interested in the way the case was dismissed: defendants moved for dismissal under Fed. R. Civ. P. 12(b)(6), but the court took it as going to the heart of jurisdiction -- i.e., Fed. R. Civ. P. 12(b)(1) -- and thus considered facts not in the complaint.

In concluding that jurisdiction is precluded by the political question doctrine, the court noted:

The decisive factor here is that Caterpillar’s sales to Israel were paid for by the United States. Though mindful that we must analyze each of the plaintiffs’ “individual claims,” id. at 547, each claim unavoidably rests on the singular premise that Caterpillar should not have sold its bulldozers to the IDF. Yet these sales were financed by the executive branch pursuant to a congressionally enacted program calling for executive discretion as to what lies in the foreign policy and national security interests of the United States.

The plaintiffs were represented by Gwynne Skinner and Ronald C. Slye from Seattle University's Ronald A. Peterson Law Clinic, as well as by attorneys from the Center for Constitutional Rights (New York). Erwin Chemerinsky (Duke University) argued for the plaintiffs-appellants. There were also a number of amici, including the United States, the National Chamber Litigation Center, and groups of law professors.

(Side note: Prof. Chemerinsky will be the dean of the new law school at University of California - Irvine. UCI, Chemerinsky putting on a happy face, L.A. Times, Sept. 18, 2007. What made this newsworthy is that UC-Irvine announced it, then withdrew its offer. After much criticism for the withdrawal, the university rehired him.)