Yesterday, the Ninth Circuit Court of Appeals confirmed that Maynas Carijanao v. Occidental Petroleum, our case on behalf of indigenous Peruvians against Oxy for oil contamination in the Amazon, can proceed in U.S. courts. If this sounds familiar, it's because the Ninth Circuit has done this twice before - but this time, it's for good.
What's going on here? The short answer is that Oxy filed several petitions to get the Ninth Circuit to reconsider its decision (asking for a "rehearing"), and the final petition was just rejected. This petition was for rehearing "en banc," which means that the full court - twenty-seven active judges in the Ninth Circuit, although one was recused - votes on whether to reconsider the decision, and if they vote in favor, the case would go to a panel of eleven judges. En banc rehearing is the final stage at the appeals court, so the only option remaining to Oxy is the Supreme Court.
Why did this take so long? The Ninth Circuit issued its original decision a year and a half ago, in December 2010. The three judges hearing the case then considered Oxy's first rehearing petition, and modified their opinion slightly and reissued it in June 2011. But then after Oxy filed their petition for en banc rehearing, it took months for the final order denying the petition.
What happened is probably explained by the opinions that were issued along with yesterday's order. Chief Judge Kozinski, who's usually described as libertarian, wrote a dissent, saying that the court should have reheard the case; he was joined by four of the court's more conservative judges. Judge Wardlaw, the presiding judge on the original three-judge panel, wrote an opinion in response. The actual en banc voting process usually doesn't take more than a couple months, so the back-and-forth opinions are probably responsible for most of the delay.
Why would they bother? Dissents from denials of rehearing are usually written to signal to the Supreme Court that it should take a close look at this case, because some of the judges think it was wrongly decided. And that explains Judge Wardlaw's opinion, too - which starts off with "Whoa!!!", mocking Judge Kozinski's sky-is-falling take on the Ninth Circuit's decision, to send the signal to the Supreme Court that there's nothing to see here. (I have never seen "Whoa!!!" in a judicial opinion before.)
Judge Wardlaw's opinion was signed by the other members of her panel. Although Judge Rymer had dissented from the panel's original decision, her recent death led to her replacement on the panel by Judge Gould, who joined Judge Wardlaw.
So far I've ignored what the opinions actually said - why Judge Kozinski thought the decision was wrong, and what he and Judge Wardlaw were arguing about. That's because it's pretty technical legal stuff, and has nothing to do with the substance of the case. But, for those who are truly interested: the argument centers on what courts are allowed to do when deciding "threshold" issues in a case, which determine whether a case can go forward at all. One of these issues is the question of jurisdiction, and a case can never go forward without jurisdiction; other doctrines can be more flexible.
At the district court, Oxy filed two motions to dismiss. One invoked the doctrine of forum non conveniens against the Peruvians' claims, which says that US courts can dismiss cases if it's more appropriate to hear them in another country. The second challenged the claim brought by Amazon Watch, arguing that the NGO did not have "standing" - i.e., a right to bring a claim to court. Although both forum non conveniens and standing are threshold issues, only standing is a question of jurisdiction; if the plaintiff has no standing, the court has no jurisdiction.
The district court only decided the forum non conveniens motion, dismissing the entire case without considering whether Amazon Watch had standing. The Supreme Court specifically approved this practice in a case called Sinochem, ruling that a court doesn't need to decide whether it has jurisdiction before dismissing a case on the basis of forum non conveniens.
The Ninth Circuit did just what the district court did, considering only the question of forum non conveniens and not addressing the standing issue. Amazon Watch's standing was "remanded," or returned to the district court for its consideration.
And that's what Judge Kozinski thought was a mistake; he thought that the court should have decided the standing issue before deciding forum non conveniens. Basically, he is saying that although Sinochem allows a court to grant a forum non conveniens dismissal without deciding jurisdiction, it does not allow a court (or at least the court of appeals) to deny a forum non conveniens dismissal without deciding jurisdiction.
Judge Wardlaw's response was that all the court of appeals did was to review what the district court actually did, and that was just the forum non conveniens decision. Appellate courts usually don't decide questions that the lower court didn't decide, and that's why the court remanded the standing issue.
None of this is particularly significant to the case. What may be significant, however, is what Judge Wardlaw said in responding to Judge Kozinski - she pointed out that if the district court decides that Amazon Watch has no standing, Oxy would be free to renew its forum non conveniens motion. That means that the fight over Amazon Watch's standing, which should be next up at the district court, is pretty important for moving the case forward. If we lose that fight, we might have to do the whole forum non conveniens process all over again!