Corrie v. Caterpillar, Inc. ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYNTHIA CORRIE, on their own 
behalf and as Personal
Representatives of Rachel Corrie
and her next of kin, including her
siblings; CRAIG CORRIE, on their
own behalf and as Personal
Representatives of Rachel Corrie
and her next of kin, including her No. 05-36210
siblings; MAHMOUD OMAR AL
SHO’BI; FATHIYA MUHAMMAD  D.C. No.
CV-05-05192-FDB
SULAYMAN FAYED; FAYEZ ALI
MOHAMMED ABU HUSSEIN; MAJEDA OPINION
RADWAN ABU HUSSEIN; EIDA
IBRAHIM SULEIMAN KHALAFALLAH,
Plaintiffs-Appellants,
v.
CATERPILLAR, INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted
July 9, 2007—Seattle, Washington
Filed September 17, 2007
Before: Arthur L. Alarcón, Michael Daly Hawkins, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
12485
12488 CORRIE v. CATERPILLAR, INC.
COUNSEL
Gwynne Skinner and Ronald C. Slye, Seattle University, Ron-
ald A. Peterson Law Clinic, Seattle, Washington; Maria C.
LaHood and Jennifer Green, Center for Constitutional Rights,
New York, New York; and Erwin Chemerinsky (argued), for
the plaintiffs-appellants.
Robert G. Abrams (argued), Howrey LLP, Washington, D.C.;
Joanne E. Caruso, Richard J. Burdge, Jr., and David G.
Meyer, Howrey LLP, Los Angeles, California; James L.
Magee, Graham & Dunn PLC, Seattle, Washington, for the
defendant-appellee.
Ronald J. Bettauer, Deputy Legal Adviser, Department of
State, Jeffrey Buchwoltz, Acting Assistant Attorney General,
John McKay, U.S. Attorney, Douglas N. Letter, Robert M.
Loeb (argued), Attorneys, Appellate Staff, Department of Jus-
tice, Washington, D.C., for amicus curiae the United States.
Ralph G. Steinhardt, George Washington University Law
School, Washington, D.C., for amicus curiae International
Law Scholars.
Marco Simons and Richard L. Herz, Earthrights International,
Washington, D.C., for amicus curiae Career Foreign Service
Diplomats.
CORRIE v. CATERPILLAR, INC. 12489
Allan Ides, Loyola Law School, Los Angeles, California, for
amicus curiae Professors of Constitutional and International
Law.
Terry Collingsworth for amicus curiae the International Labor
Rights Fund.
Tyler R. Giannini, Human Rights Program of Harvard Law
School, Cambridge, Massachusetts, for amicus curiae Law
Professors.
Robin S. Conrad and Amar D. Sarwal, National Chamber Lit-
igation Center, Inc., Washington, D.C.; Maria Ghazal, Busi-
ness Roundtable, Washington, D.C.; Paul R. Friedman, John
Townsend Rich, and William F. Sheehan, Goodwin Procter
LLP, Washington, D.C., for amicus curiae the Chamber of
Commerce of the United States of America and Business
Roundtable.
OPINION
WARDLAW, Circuit Judge:
Plaintiffs Cynthia and Craig Corrie, Mahmoud Al Sho’bi,
Fathiya Muhammad Sulayman Fayed, Fayez Ali Mohammed
Abu Hussein, Majeda Radwan Abu Hussein, and Eida Ibra-
him Suleiman Khalafallah filed this action after their family
members were killed or injured when the Israeli Defense
Forces (“IDF”) demolished homes in the Palestinian Territo-
ries using bulldozers manufactured by Caterpillar, Inc., a
United States corporation. The IDF ordered the bulldozers
directly from Caterpillar, but the United States government
paid for them. The district court dismissed the action under
Federal Rule of Civil Procedure 12(b)(6), finding it lacked
jurisdiction because, inter alia, the political question doctrine
precludes decision by an Article III court.
12490 CORRIE v. CATERPILLAR, INC.
Because we agree that plaintiffs’ claims present nonjusti-
ciable political questions that deprive the district court of sub-
ject matter jurisdiction when construed under Federal Rule of
Civil Procedure 12(b)(1), we do not reach the remaining ques-
tions presented under state, federal, and international law.
Plaintiffs’ action cannot proceed because its resolution would
require the federal judiciary to ask and answer questions that
are committed by the Constitution to the political branches of
our government.
We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
I. Facts and Background
A. The Allegations in the Complaint
Because this action was dismissed under Federal Rule of
Civil Procedure 12(b)(6), we accept all facts alleged in the
complaint as true and construe them in the light most favor-
able to the plaintiffs. Maduka v. Sunrise Hosp., 375 F.3d 909,
911 (9th Cir. 2004).
Following the Six Day War in 1967, Israel occupied and
took control of the West Bank and Gaza Strip. Caterpillar is
the world’s leading manufacturer of heavy construction and
mining equipment. Among its customers is the IDF, which
since 1967 has utilized Caterpillar bulldozers to demolish
homes in the Palestinian Territories. According to plaintiffs’
complaint, Caterpillar sold the bulldozers to the IDF despite
its actual and constructive notice that the IDF would use them
to further its home destruction policy in the Palestinian Terri-
tories; a policy plaintiffs contend violates international law.
Seventeen members of plaintiffs’ families — sixteen Palestin-
ians and one American — were killed or injured in the course
of the demolitions.
CORRIE v. CATERPILLAR, INC. 12491
B. Facts Beyond the Complaint1
The complaint alleges that Caterpillar sold bulldozers to the
IDF, but it does not explain how those bulldozers were
financed. There is undisputed evidence in the record, how-
ever, that the United States government paid for every bull-
dozer that Caterpillar transferred to the IDF. Caterpillar
submitted an affidavit by Frank Weinberg (“Weinberg Decla-
ration”), General Manager of Caterpillar’s Defense & Federal
Products division, in which Weinberg states that the United
States government has approved and financed all contracts
between Israel and Caterpillar dating back to at least 1990,
and that Caterpillar “does not sell products to the government
of Israel in sales that are not approved by the U.S. govern-
ment.”
Appended to the Weinberg Declaration is a copy of a letter
from the Defense Security Cooperation Agency (“DSCA”), an
arm of the United States Department of Defense, sent in Sep-
tember 2001 to the Israeli government and copied to Caterpil-
lar (“DSCA letter”). The letter grants “[f]unding approval” for
the Israeli government’s purchase of fifty Caterpillar D9 bull-
dozers under the Foreign Military Financing program
(“FMF”). Under the FMF, foreign governments enter into
contracts directly with American defense contractors and then
apply to the DSCA for approval of funding on a case-by-case
basis.2 The DSCA letter also states that the DSCA “find[s] the
proposed procurement to be consistent with the purposes of
1
As we discuss infra, it is proper to consider facts in the record found
outside the complaint because Caterpillar’s motion to dismiss argues the
presence of a political question, which would deprive us of subject matter
jurisdiction.
2
See DSCA, “Guidelines for Foreign Military Financing of Direct Com-
mercial Contracts — January 2005,” at http://www.dsca.osd.mil/
DSCA_memoranda/fmf_dcc_2005/Guidlines 2005%203.pdf. We take
judicial notice of the DSCA’s guidelines for implementing the FMF. See
Fed. R. Evid. 201; Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320,
332 & n.10 (1961) (taking judicial notice of a government publication).
12492 CORRIE v. CATERPILLAR, INC.
the Arms Export Control Act,” 22 U.S.C. §§ 2751 et seq.,
which authorizes the FMF, see id. § 2763.
Plaintiffs introduced a letter from Matthew Reynolds, the
Acting Assistant Secretary of State for Legislative Affairs,
indicating that Israel acquired the bulldozers “on a commer-
cial contract basis” financed through the FMF (“Reynolds let-
ter”). At oral argument, plaintiffs did not dispute that the
bulldozers were financed under the FMF.
Amicus United States Department of State confirms that
“funds requested by the Executive and appropriated by Con-
gress were used by Israel to purchase the equipment in ques-
tion under the Foreign Military Financing [ ] program.”3
C. District Court Proceedings
Plaintiffs filed an action in the district court alleging seven
claims against Caterpillar for (1) war crimes; (2) extrajudicial
killing under the Torture Victim Protection Act4; (3) cruel,
3
The United States did not file a Statement of Interest in the district
court. Caterpillar moved for the district court to solicit the State Depart-
ment’s views, but the district court dismissed plaintiffs’ claims without
ever ruling on that motion. Had the United States filed a Statement of
Interest, we would have given it “serious weight.” Sarei v. Rio Tinto, 487
F.3d 1193, 1205 (9th Cir. 2007) (vacated pending reh’g en banc, 2007
U.S. App. LEXIS 19751 (9th Cir. Aug. 20, 2007)) (quoting Sosa v.
Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004)). The Statement of Inter-
est, however, would not have settled the matter as it remains our “respon-
sibility to determine whether a political question is present, rather than to
dismiss on that ground simply because the Executive Branch expresses
some hesitancy about a case proceeding.” Id.The United States presents its views as an amicus curiae. In this pos-
ture, we take “considerable interest” in its views regarding a matter
impinging upon foreign policy. Republic of Aus. v. Altmann, 541 U.S. 677,
701 (2004). While an amicus may not generally introduce new facts at the
appellate stage, given the unique circumstances presented here, we credit
the government’s uncontradicted representation on appeal that it pays for
all Caterpillar bulldozers sold to the IDF.
4
Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C.
§ 1350, historical and statutory notes).
CORRIE v. CATERPILLAR, INC. 12493
inhuman, or degrading treatment or punishment; (4) violations
of the Racketeer Influenced and Corrupt Organizations Act,
18 U.S.C. §§ 1961 et seq.; (5) wrongful death; (6) public nui-
sance; and (7) negligent entrustment. The gravamen of each
claim is that Caterpillar provided the IDF with equipment it
knew would be used in violation of international law, and thus
aided and abetted those violations. Plaintiffs seek compensa-
tory and punitive damages; declaratory relief; an injunction
directing Caterpillar to cease providing equipment to the IDF
so long as its illegal practices continue; and costs and attor-
neys’ fees.
Plaintiffs contend we have jurisdiction over the Palestinian
plaintiffs’ claims under the Alien Tort Statute5 (“ATS”), 28
U.S.C. § 1350, and over the claims of the relatives of Rachel
Corrie, who are American, under the general federal question
jurisdiction statute, 28 U.S.C. § 1331.
Caterpillar moved to dismiss the action under Rule 12(b)(6)
for failure to state a claim and under the act of state and politi-
cal question doctrines. The district court granted the motion
in a published opinion. 403 F. Supp. 2d 1019 (W.D. Wash.
2005). It held that both the act of state and the political ques-
tion doctrines precluded it from reaching the merits of the
claims. Alternatively, it held that all of plaintiffs’ claims
failed on the merits.
Plaintiffs timely appeal.
5
Panels of our Court have referred to this statute by no fewer than three
different names. See, e.g., Alperin v. Vatican Bank, 410 F.3d 532, 541 (9th
Cir. 2005) (“Alien Tort Statute”); Deutsch v. Turner Corp., 317 F.3d
1005, 1017 (9th Cir. 2003) (“Alien Tort Claims Act”); Martinez v. City of
Los Angeles, 141 F.3d 1373, 1377 (9th Cir. 1998) (“Alien Tort Act”).
Because the Supreme Court most recently used the appellation “Alien Tort
Statute,” Sosa v. Alvarez-Machain, 542 U.S. at 697, we do so too.
12494 CORRIE v. CATERPILLAR, INC.
II. Standard of Review
We review a district court’s dismissal for failure to state a
claim or for lack of subject matter jurisdiction de novo.
Arakaki v. Lingle, 477 F.3d 1048, 1056 (9th Cir. 2007). We
may affirm on any basis fairly supported by the record.
United States v. Washington, 969 F.2d 752, 755 (9th Cir.
1992).
III. Political Question Doctrine
We face a threshold procedural hurdle concerning the scope
of what we may consider in deciding this appeal. Our political
question analysis calls on us to examine the United States
government’s role in financing the IDF’s purchases of Cater-
pillar bulldozers. But determining that role requires us to look
beyond the face of the plaintiffs’ complaint and to other evi-
dence in the record. We first consider, therefore, whether the
doctrine’s limitation on federal courts is jurisdictional, or
merely prudential. Only if the doctrine is jurisdictional may
we look beyond the facts alleged in the complaint to decide
whether this case presents a political question. Because we
hold that the political question doctrine is jurisdictional in
nature, we proceed, taking into consideration facts beyond the
complaint.
A.
In general, “[t]he focus of any Rule 12(b)(6) dismissal —
both in the trial court and on appeal — is the complaint.”
Schneider v. Cal. Dep’t of Corrections, 151 F.3d 1194, 1197
n.1 (9th Cir. 1998). But when a motion to dismiss attacks “the
substance of the complaint’s jurisdictional allegations,” we
treat it as brought under Rule 12(b)(1), even if it was “im-
properly identified by the moving party as brought under Rule
12(b)(6).” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th
Cir. 1989). Under such circumstances, the court may expand
its review and “rely on affidavits or any other evidence prop-
CORRIE v. CATERPILLAR, INC. 12495
erly before the court.” Id. (citing Thornhill Publ’g Co. v. Gen.
Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979)).
Plaintiffs’ complaint does not reference the government’s
role in facilitating the sales at issue, but undisputed evidence
in the record suggests that the United States pays for every
bulldozer the IDF purchases from Caterpillar. Before consid-
ering that evidence at the pleadings stage, we must decide
whether the presence of a political question deprives a court
of subject matter jurisdiction. To the extent the answer to that
question is “unclear,” see Arakaki, 477 F.3d at 1056, we now
hold that it does.
The political question doctrine first found expression in
Chief Justice Marshall’s observation that “[q]uestions, in their
nature political, or which are, by the constitution and laws,
submitted to the executive, can never be made in this court.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803). The
Supreme Court has since explained that “[t]he nonjusticia-
bility of a political question is primarily a function of the sep-
aration of powers.” Baker v. Carr, 369 U.S. 186, 211 (1962).
Baker outlined six independent tests for determining whether
courts should defer to the political branches on an issue:
Prominent on the surface of any case held to involve
a political question is found [1] a textually demon-
strable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judi-
cially discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding
without an initial policy determination of a kind
clearly for nonjudicial discretion; or [4] the impossi-
bility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate
branches of government; or [5] an unusual need for
unquestioning adherence to a political decision
already made; or [6] the potentiality of embarrass-
12496 CORRIE v. CATERPILLAR, INC.
ment from multifarious pronouncements by various
departments on one question.
Id. at 217.
[1] The Supreme Court has indicated that disputes involv-
ing political questions lie outside of the Article III jurisdiction
of federal courts. See Schlesinger v. Reservists Comm. to Stop
the War, 418 U.S. 208, 215 (1974) (“[T]he concept of justi-
ciability, which expresses the jurisdictional limitations
imposed upon federal courts by the ‘case or controversy’
requirement of Art. III, embodies . . . the political question
doctrine[ ].” ) (citing Flast v. Cohen, 392 U.S. 83, 95 (1968));
see also Schneider v. Kissinger, 412 F.3d 190, 193 (D.C. Cir.
2005) (“The principle that the courts lack jurisdiction over
political decisions that are by their nature committed to the
political branches to the exclusion of the judiciary is as old as
the fundamental principle of judicial review.”) (internal quo-
tation marks omitted); No GWEN Alliance of Lane County,
Inc. v. Aldridge, 855 F.2d 1380, 1382 (9th Cir. 1988) (“[T]he
presence of a political question precludes a federal court,
under [A]rticle III of the Constitution, from hearing or decid-
ing the case presented.”). Federal courts’ jurisdiction is con-
strained by Article III of the Constitution. Because the
political question doctrine curbs a court’s power under Article
III to hear a case, the doctrine is inherently jurisdictional.6
[2] But some courts and commentators have also posited a
prudential political question doctrine. Justice Powell
6
It is telling that the political question doctrine first found expression in
Marbury, the seminal case establishing that the Constitution vests federal
courts with the judicial review function. 5 U.S. (1 Cranch) at 154-73. If
the Constitution generally permits courts to review congressional legisla-
tion and executive action, after all, it makes sense that it would also cir-
cumscribe that power over issues particularly within the province of the
political branches. Cf. Akhil Reed Amar, Marbury, Section 13, and the
Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443, 449-
50 (1989).
CORRIE v. CATERPILLAR, INC. 12497
expressed his view that “the political-question doctrine rests
in part on prudential concerns calling for mutual respect
among the three branches of Government.” Goldwater v. Car-
ter, 444 U.S. 996, 1000 (1979) (Powell, J., concurring); see
also Nixon v. United States, 506 U.S. 224, 252-53 (1992)
(Souter, J., concurring) (noting that applying the political
question doctrine requires case-by-case attention to “pruden-
tial concerns”); Wang v. Masaitis, 416 F.3d 992, 996 (9th Cir.
2005) (discussing Justice Powell’s approach).
The descriptor “prudential doctrine” is generally reserved
for self-imposed restraints that arise at the judiciary’s discre-
tion rather than by the command of the Constitution. Cf.
Warth v. Seldin, 422 U.S. 490, 499-500 (1975) (describing
prudential standing requirements as “essentially matters of
judicial self-governance”). But prudential considerations can-
not substitute for constitutional considerations; rather, they
assist in identifying cases the Constitution forbids courts from
hearing.
[3] Prudential considerations look to the consequences of a
court asserting its jurisdiction, while purely constitutional
ones look to the text and structure of the Constitution itself for
clues about the limitations on a court’s Article III powers.
Because the Constitution’s grants of authority are often set
forth in broad strokes, courts often take prudential concerns
into account to assist them in the difficult task of discerning
which cases the Constitution forbids them from hearing. See
Rachel E. Barkow, More Supreme Than Court? The Fall of
the Political Question Doctrine and the Rise of Judicial
Supremacy, 102 Colum. L. Rev. 237, 253-63 (2002). We have
accordingly pointed to Justice Powell’s view that the first
three Baker factors focus on the constitutional limitations of
a court’s jurisdiction, while the final three are “prudential
considerations [that] counsel against judicial intervention.”
Wang, 416 F.3d at 996 (quoting Goldwater, 444 U.S. at 998(Powell, J., concurring) (emphasis added)). But see Vatican
Bank, 410 F.3d at 544 (“But these [six Baker] tests are more
12498 CORRIE v. CATERPILLAR, INC.
discrete in theory than in practice, with the analyses often col-
lapsing into one another.”) (citing Nixon, 506 U.S. at 228-29).
[4] In this sense, the political question doctrine may have
a prudential element to its application, and it is not a contra-
diction to speak of the political question doctrine as both pru-
dential and jurisdictional. But it is at bottom a jurisdictional
limitation imposed on the courts by the Constitution, and not
by the judiciary itself. See 767 Third Ave. Assocs. v. Consul-
ate Gen. of the Socialist Fed. Republic of Yugo., 218 F.3d
152, 164 (2d. Cir. 2000) (“Although prudential considerations
may inform a court’s justiciability analysis, the political ques-
tion doctrine is essentially a constitutional limitation on the
courts.”).
[5] We hold that if a case presents a political question, we
lack subject matter jurisdiction to decide that question. Cater-
pillar’s Rule 12(b)(6) motion is thus more appropriately con-
strued as a Rule 12(b)(1) motion for dismissal for lack of
subject matter jurisdiction to the extent it alleges a nonjusti-
ciable political question. We may therefore look beyond the
face of the complaint to determine whether the district court
properly dismissed plaintiffs’ action under the political ques-
tion doctrine. See St. Clair, 880 F.2d at 201.
B.
[6] “The conduct of the foreign relations of our government
is committed by the Constitution to the executive and legisla-
tive [branches] . . . and the propriety of what may be done in
the exercise of this political power is not subject to judicial
inquiry or decision.” Oetjen v. Cent. Leather Co., 246 U.S.
297, 302 (1918). However, it is “error to suppose that every
case or controversy which touches foreign relations lies
beyond judicial cognizance.” Baker, 369 U.S. at 211. We will
not find a political question “merely because [a] decision may
have significant political overtones.” Japan Whaling Ass’n v.
CORRIE v. CATERPILLAR, INC. 12499
Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986); see also
Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995).
We “undertake a discriminating case-by-case analysis to
determine whether the question posed lies beyond judicial
cognizance.” Vatican Bank, 410 F.3d at 545. Nevertheless,
“cases interpreting the broad textual grants of authority to the
President and Congress in the areas of foreign affairs leave
only a narrowly circumscribed role for the Judiciary.” Id. at
559 (quotation omitted).
[7] 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 prem-
ise 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. See 22 U.S.C.
§ 2751 (stating that the purpose of the Arms Export Control
Act, which authorizes the FMF program, is to support “effec-
tive and mutually beneficial defense relationships in order to
maintain and foster the environment of international peace
and security essential to social, economic, and political prog-
ress”).
[8] Allowing this action to proceed would necessarily
require the judicial branch of our government to question the
political branches’ decision to grant extensive military aid to
Israel. It is difficult to see how we could impose liability on
Caterpillar without at least implicitly deciding the propriety of
the United States’ decision to pay for the bulldozers which
allegedly killed the plaintiffs’ family members.7
7
Plaintiffs cannot plausibly argue that Caterpillar was somehow on
notice of IDF policies governing the bulldozers’ military utilization while
the United States government was not. Much of the “Notice to Caterpillar,
12500 CORRIE v. CATERPILLAR, INC.
Several of the six Baker tests are implicated by the United
States government’s role in financing the Caterpillar bull-
dozer purchases by the IDF. We begin with the first: Whether
there is “a textually demonstrable constitutional commitment
of the issue to a coordinate political department.” 369 U.S. at
217. It is well established that “ ‘the conduct of foreign rela-
tions is committed by the Constitution to the political depart-
ments of the Federal Government; [and] that the propriety of
the exercise of that power is not open to judicial review.’ ”
Mingtai Fire & Marine Ins. Co. v. United Parcel Serv., 177
F.3d 1142, 1144 (9th Cir. 1999) (quoting United States v.
Pink, 315 U.S. 203, 222-23 (1942)).
[9] Whether to grant military or other aid to a foreign
nation is a political decision inherently entangled with the
conduct of foreign relations. In Dickson v. Ford, Dickson
challenged the Emergency Security Assistance Act of 1973,
which authorized $2.2 billion for military assistance and for-
eign military sales credit to Israel. 521 F.2d 234, 235 & n.1
(5th Cir. 1975). The Fifth Circuit dismissed the case on politi-
cal question grounds, noting that both “the Congress and the
President have determined that military and economic assis-
tance to the State of Israel is necessary.” Id. at 236. The court
held that “a determination of whether foreign aid to Israel is
necessary at this particular time is a ‘question uniquely
demand[ing] single-voiced statement of the Government’s
views,’ ” and is therefore inappropriate for judicial resolution.
Id. (quoting Baker, 369 U.S. at 211); see also Crockett v. Rea-
gan, 720 F.2d 1355, 1356-57 (D.C. Cir. 1983) (per curiam);
Atl. Tele-Network v. Inter-Am. Dev. Bank, 251 F. Supp. 2d
126, 131 (D.D.C. 2003).
Inc.” discussed in the complaint details United Nations resolutions and
statements and human rights organization reports dating back to 1967. It
is inconceivable that the United States government would not also have
been aware of the IDF practice of demolishing Palestinian homes.
CORRIE v. CATERPILLAR, INC. 12501
[10] We cannot intrude into our government’s decision to
grant military assistance to Israel, even indirectly by deciding
this challenge to a defense contractor’s sales.8 Plaintiffs’
claims can succeed only if a court ultimately decides that Cat-
erpillar should not have sold its bulldozers to the IDF.
Because that foreign policy decision is committed under the
Constitution to the legislative and executive branches, we
hold that plaintiffs’ claims are nonjusticiable under the first
Baker test.
Plaintiffs’ action also runs head-on into the fourth, fifth,
and sixth Baker tests because whether to support Israel with
military aid is not only a decision committed to the political
branches, but a decision those branches have already made.
See Vatican Bank, 410 F.3d at 544 (“[T]hese tests are more
discrete in theory than in practice, with the analyses often col-
lapsing into one another.”). The executive branch has made a
policy determination that Israel should purchase Caterpillar
bulldozers. It advances that determination by financing those
purchases under a program authorized by Congress. A court
could not find in favor of the plaintiffs without implicitly
questioning, and even condemning, United States foreign pol-
icy toward Israel.
8
Our holding in Sarei v. Rio Tinto, 487 F.3d at 1204, does not provide
appellants with shelter from the political question doctrine. The cases are
factually unrelated. Sarei involved a dispute between an international min-
ing corporation allied with the then government of Papua New Guinea and
local residents opposing the actions of the corporation. The United States
was implicated in the litigation only through its filing of a Statement of
Interest at the request of the district court. This is a sizable step removed
from the current proceedings where the United States is a direct actor,
having funded Israel’s purchase of the bulldozers in question.
We rejected Rio Tinto’s argument in Sarei that the first Baker factor is
satisfied for all ATS claims. However, this should not be understood as
accepting the inverse proposition that all ATS claims are per se immu-
nized from the first Baker factor. Here, the ATS claim runs directly afoul
of the first Baker factor because our review of the claim would be “inextri-
cable” from a review of a foreign policy decision constitutionally commit-
ted to the coordinate political departments. Baker, 369 U.S. at 217.
12502 CORRIE v. CATERPILLAR, INC.
In this regard, we are mindful of the potential for causing
international embarrassment were a federal court to under-
mine foreign policy decisions in the sensitive context of the
Israeli-Palestinian conflict. Plaintiffs argue that the United
States government has already criticized Israel’s home demo-
litions in the Palestinian Territories. They point, for example,
to former Secretary of State Powell’s statement that “[w]e
oppose the destruction of [Palestinian] homes — we don’t
think that is productive.” But that language is different in kind
from a declaration that the IDF has systematically committed
grave violations of international law, none of which the
United States has ever accused Israel of, so far as the record
reveals. Diplomats choose their words carefully, and we can-
not subvert United States foreign policy by latching onto such
mildly critical language by the Secretary of State. Cf. Crosby
v. Nat’l Foreign Trade Council, 530 U.S. 363, 386 (2000)
(“[T]he nuances of the foreign policy of the United States . . .
are much more the province of the Executive Branch and
Congress than of this Court.”) (internal quotations omitted).
[11] It is not the role of the courts to indirectly indict Israel
for violating international law with military equipment the
United States government provided and continues to provide.
“Any such policy condemning the [Israeli government] must
first emanate from the political branches.” Vatican Bank, 410
F.3d at 561. Plaintiffs may purport to look no further than
Caterpillar itself, but resolving their suit will necessarily
require us to look beyond the lone defendant in this case and
toward the foreign policy interests and judgments of the
United States government itself.
We therefore hold that the district court did not err in dis-
missing the suit under the political question doctrine. Because
we affirm on this ground, we do not reach the other issues
raised on appeal.
AFFIRMED.9
9
Caterpillar’s Request for Judicial Notice, filed June 7, 2006, is denied.