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The successive military governments of first Burma and now Myanmar have a long and well-known history of imposing forced labor on their citizens. See, e.g., Forced labour in Myanmar (Burma): Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29) Parts III.8, V.14(3) (1998) (describing several inquiries into forced labor in Myanmar conducted between 1960 and 1992 by the International Labor Organization, and finding abundant evidence . . . showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military), http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanmar.htm. As detailed below, even before Unocal invested in the Project, Unocal was made aware by its own consultants and by its partners in the Project of this record and that the Myanmar Military might also employ forced labor and commit other human rights violations in connection with the Project. And after Unocal invested in the Project, Unocal was made aware by its own consultants and employees, its partners in the Project, and human rights organizations of allegations that the Myanmar Military was actually committing such violations in connection with the Project.
Before Unocal acquired an interest in the Project, it hired a consulting company, Control Risk Group, to assess the risks involved in the investment. In May 1992, Control Risk Group informed Unocal that [t]hroughout Burma the government habitually makes use of forced labour to construct roads.6 Control Risk Group concluded that [i]n such circumstances UNOCAL and its partners will have little freedom of manoeuvre. Unocals awareness of the risk at that time is also reflected in the deposition testimony of Unocal Vice President of International Affairs Stephen Lipman (Unocal Vice President Lipman):
[I]n our discussions between Unocal and Total [preceding Unocals acquisition of an interest in the Project], we said that the option of having the [Myanmar] [M]ilitary provide protection for the pipeline construction and operation of it would be that they might proceed in the manner that would be out of our control and not be in a manner that we would like to see them proceed, I mean, going to excess.
On January 4, 1995, approximately three years after Unocal acquired an interest in the Project, Unocal President Imle met with human rights organizations at Unocals headquarters in Los Angeles and acknowledged to them that the Myanmar Military might be using forced labor in connection with the Project. At that meeting, Imle said that [p]eople are threatening physical damage to the pipeline, that if you threaten the pipeline theres gonna be more military, and that [i]f forced labor goes hand and glove with the military yes there will be more forced labor. (Emphasis added.)
Two months later, on March 16, 1995, Unocal Representative Robinson confirmed to Unocal President Imle that the Myanmar Military might be committing human rights violations in connection with the Project. Thus, Robinson wrote to Imle that he had received publications from human rights organizations which depicted in more detail than I have seen before the increased encroachment of [the Myanmar Militarys] activities into the villages of the pipeline area. Robinson concluded on the basis of these publications that [o]ur assertion that [the Myanmar Military] has not expanded and amplified its usual methods around the pipeline on our behalf may not withstand much scrutiny.8
Shortly thereafter, on May 10, 1995, Unocal Representative Robinson wrote to Totals Herve Madeo:
From Unocals standpoint, probably the most sensitive issue is what is forced labor and how can you identify it. I am sure that you will be thinking about the demarcation between work done by the project and work done on behalf of the project. Where the responsibility of the project ends is very important.
This statement is some evidence that Unocal knew that the Myanmar Military might use forced labor in connection with the Project.
In June 1995, Amnesty International also alerted Unocal to the possibility that the Myanmar Military might use forced labor in connection with the Project. Amnesty International informed Unocal that comments from a Myanmar Department of Industry official could mean that the government plans to use voluntary labor in conjunction with the pipeline. Amnesty International went on to explain that what they call voluntary labor is called forced labor in other parts of the world.9
Later that year, on December 11, 1995, Unocal Consultant John Haseman (Unocal Consultant Haseman or Haseman), a former military attache at the U.S. Embassy in Rangoon, reported to Unocal that the Myanmar Military as, in fact, using forced labor and committing other human rights violations in connection with the Project. Haseman told Unocal that Unocal was particularly discredited when a corporate spokesman was quoted as saying that Unocal was satisfied with . . . assurances [by the Myanmar Military] that no human rights abuses were occurring in the area of pipeline construction. Haseman went on to say:
Based on my three years of service in Burma, my continuous contacts in the region since then, and my knowledge of the situation there, my conclusion is that egregious human rights violations have occurred, and are occurring now, in southern Burma. The most common are forced relocation without compensation of families from land near/along the pipeline route; forced labor to work on infrastructure projects supporting the pipeline . . . ; and imprisonment and/or execution by the army of those opposing such actions. . . . Unocal, by seeming to have accepted [the Myanmar Military]s version of events, appears at best naive and at worst a willing partner in the situation.10
Communications between Unocal and Total also reflect the companies shared knowledge that the Myanmar Military was using forced labor in connection with the Project. On February 1, 1996, Totals Herve Chagnoux wrote to Unocal and explained his answers to questions by the press as follows:
By stating that I could not guarantee that the army is not using forced labour, I certainly imply that they might, (and they might) but I am saying that we do not have to monitor armys behavior: we have our responsibilities; they have their responsibilities; and we refuse to be pushed into assuming more than what we can really guarantee. About forced labour used by the troops assigned to provide security on our pipeline project, let us admit between Unocal and Total that we might be in a grey zone.
And on September 17, 1996, Total reported to Unocal about a meeting with a European Union civil servant in charge of an investigation of forced labor in Myanmar: We were told that even if Total is not using forced labor directly, the troops assigned to the protection of our operations use forced labour to build their camps and to carry their equipments. In reply, Total acknowledged that forced labor did indeed occur in connection with the pipeline: We had to mention that when we had knowledge of such occurrences, the workers have been compensated. Unocal President Imle testified at his deposition that in Unocals discussions with Total, [s]urrounding the question of porters for the military and their payment was the issue of whether they were conscripted or volunteer workers. Imle further testified that the consensus was that it was mixed, i.e., some porters were conscripted, and some were volunteer. On March 4, 1997, Unocal nevertheless submitted a statement to the City Counsel of New York, in response to a proposed New York City select purchasing law imposed on firms that do business in Myanmar, in which Unocal stated that no [human rights] violations have taken place in the vicinity of the pipeline route.
D. Proceedings Below.
In September of 1996, four villagers from the Tenasserim region, the Federation of Trade Unions of Burma (the Trade Unions), and the National Coalition Government of the Union of Burma (the Government in Exile) brought an action against Unocal and the Project. Natl Coalition Govt of the Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 334 (C.D. Cal. 1997) (Roe I). Plaintiffs in Roe I alleged violations of the law of nations under the Alien Tort Claims Act (the ATCA), 28 U.S.C. § 1350, and violations of state law. One of the four individual Roe-Plaintiffs alleged that the Myanmar Military subjected him to forced labor, without compensation and under threat of death, along the pipeline route in connection with the Project. The other three individual Roe-Plaintiffs alleged they owned land located along the pipeline route, and were not compensated when the land was confiscated by the Myanmar Military in connection with the Project. The Trade Unions and the Government in Exile alleged similar injuries to their members and citizens, respectively.
In October of 1996, fourteen other villagers from the Tenasserim region brought another action against Unocal, Total, Myanmar Oil, the Myanmar Military, Unocal President Imle and Unocal CEO Beach. Doe I v. Unocal Corp., 963 F. Supp. 880, 883 (C.D. Cal. 1997) (Doe I). Plaintiffs in Doe I alleged that the Defendants conduct in connection with the Project had caused them to suffer death of family members, assault, rape and other torture, forced labor, and the loss of their homes and property. The Doe-Plaintiffs sought to represent a class of all residents of the Tenasserim region who have suffered or are or will be suffering similar injuries. As in the Roe case, liability in the Doe case was based on alleged violations of the ATCA and state law. In addition, liability in the Doe case was also based on alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq.
On March 25, 1997, the District Court granted in part and denied in part Unocals motion to dismiss the Doe action. See Doe I, 963 F. Supp. 880. The District Court dismissed the claims against the Myanmar Military and Myanmar Oil on the grounds that these defendants were entitled to immunity pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 et seq. The District Court also determined, however, that the act of state doctrine did not require the dismissal of the claims against the other defendants, with the exception of the expropriation claims.11 Moreover, the District Court determined that subject matter jurisdiction was available under the ATCA and that the Doe-Plaintiffs had pled sufficient facts to state a claim under the ATCA. The District Court later denied the Doe-Plaintiffs motion for class certification and dismissed their claims against Total for lack of personal jurisdiction. See Doe I v. Unocal Corp., 67 F. Supp. 2d 1140 (C.D. Cal. 1999); Doe I v. Unocal Corp., 27 F. Supp. 2d 1174 (C.D. Cal. 1998), affd 248 F.3d 915 (9th Cir. 2001).
On November 5, 1997, the District Court similarly granted in part and denied in part Unocals motion to dismiss the Roe action. See Roe I, 176 F.R.D. 329. The District Court determined that the Government in Exile (wholly) and the Trade Unions (in part) lacked standing to pursue their claims. The District Courts other determinations in the Roe action regarding the act of state doctrine, subject matter jurisdiction under the ATCA, and failure to state a claim under the ATCA were identical to its earlier determinations in the Doe action regarding the same issues.
On August 31, 2000, the District Court granted Unocals consolidated motions for summary judgment on all of Plaintiffs remaining federal claims in both actions. See Doe I v. Unocal Corp., 110 F. Supp. 2d 1294 (9th Cir. 2000) (Doe/Roe II). The District Court granted Unocals motion for summary judgment on the ATCA claims based on murder, rape, and torture because Plaintiffs could not show that Unocal engaged in state action and that Unocal controlled the Myanmar Military. The District Court granted Unocals motion for summary judgment on the ATCA claims based on forced labor because Plaintiffs could not show that Unocal actively participated in the forced labor. The District Court also determined that it did not have subject matter jurisdiction over the Doe-Plaintiffs RICO claim. Finally, after having granted summary judgment on all of Plaintiffs federal claims, the District Court declined to exercise its discretion to retain Plaintiffs state claims and dismissed those claims without prejudice.
On September 5, 2000, the District Court granted Unocals motion to recover costs in the amount of $125,846.07. On November 29, 2000, the District Court denied Plaintiffs joint Fed. R. Civ. P. 54(d)(1) Motion to Retax, concluding that the motion actually constituted a time-barred Fed. R. Civ. P. 59(e) Motion to Alter or Amend Judgment.
The Doe-Plaintiffs appeal the District Courts dismissal of their claims against the Myanmar Military and Myanmar Oil and the District Courts grant of summary judgment in favor of Unocal on their ATCA and RICO claims against Unocal (No. 00-56603). The Roe-Plaintiffs appeal the District Courts grant of summary judgment in favor of Unocal on their ATCA claims against Unocal (No. 00-56628). Plaintiffs also appeal the District Courts denial of their motion to retax (Nos. 00-57195 & 00-57197). The four appeals have been consolidated. We have jurisdiction under 28 U.S.C. § 1291, and we reverse in part, affirm in part, and remand to the District Court for further proceedings consistent with this opinion.
6. In the same year, the U.S. Department of State similarly reported that [t]he military Government [in Myanmar] routinely employs corvee labor on its myriad building projects and that [t]he Burmese army has for decades conscripted civilian males to serve as porters. U.S. Department of State, Country Reports on Human Rights Practices for 1991 796-97 (1992).
7. As noted above, the Production Sharing Contract between Total Myanmar and Myanmar Oil provided that [Myanmar Oil] shall . . . supply[ ] or mak[e] available . . . security protection . . . as may be requested by [Total Myanmar and its assigns], such as Unocal. (Emphasis added.)
8. Similarly, the briefing book that Total prepared for Unocal President Imle and Unocal CEO Beach on the occasion of their April 1996 visit to the Project listed the following area[ ] of concern: army = additional burden on the local population.
9. Also in 1995, Human Rights Watch informed Unocal that forced labor was so pervasive in Myanmar that Human Rights Watch could not condone any investment that would enrich the countrys current regime. That same year, the General Assembly of the United Nations strongly urge[d] the Government of Myanmar . . . to put an end to . . . the practices of torture, abuse of women, forced labour . . . , and . . . disappearances and summary executions . . . . Situation of Human Rights in Myanmar, U.N. General Assembly, 50th Sess., Agenda Item 112(c), U.N. Doc. A/RES/50/194 (1995), http:www.un.org/documents/ga/res/50/ares50-194.htm.
10. Similarly, on May 20, 1996, a State Department cable stated: Forced labor is currently being channeled, according to [non-governmental organization] reports, to service roads for the pipeline to Thailand. . . . There are plans for a helicopter pad and airstrip in the area . . . in part for use by oil company executives.
11. Plaintiffs in both actions subsequently filed amended complaints that do not contain claims based on expropriation of property.