Application No. A-______ ____________ IN THE SUPREME COURT OF THE UNITED STATES ____________ No. 07-81 EXXON MOBIL CORPORATION, et al., Petitioners, v. JOHN DOE I, et al., Respondents. ____________ On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit ____________ APPLICATION FOR STAY OF PROCEEDINGS ____________
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APPLICATION FOR STAY OF PROCEEDINGS - SCOTUSblog · APPLICATION FOR STAY OF PROCEEDINGS _____ To the Honorable John G. Roberts, Jr., Chief Justice of the Supreme Court of the United
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Application No. A-______
____________
IN THE SUPREME COURT OF THE UNITED STATES
____________
No. 07-81
EXXON MOBIL CORPORATION, et al., Petitioners,
v.
JOHN DOE I, et al., Respondents.
____________
On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit
____________
APPLICATION FOR STAY OF PROCEEDINGS
____________
TABLE OF CONTENTS
Page
i
TABLE OF AUTHORITIES...............................................................................ii STATEMENT .....................................................................................................3 REASONS FOR GRANTING THE APPLICATION.........................................9
A. The Requirements for a Stay of Proceedings Pending Certiorari Are Satisfied in This Case...........................................9 1. There Is A Reasonable Probability That This
Court Will Grant Certiorari And A Significant Possibility Of Reversal .....................................................10
2. There Is a Likelihood of Irreparable Harm If Proceedings in the District Court Are Not Stayed ...............................................................................13
B. The District Court’s Erroneous Denial Of Petitioners’ Request for a Stay Pending Certiorari Does Not Warrant Deference......................................................17
(Pet. App. 3a-45a) Attachment C: District Court Memorandum & Order, dated Dec. 19, 2007 Attachment D: Court of Appeals Order, dated June 30, 2006 Attachment E: Court of Appeals Order, dated Mar. 21, 2006 Attachment F: District Court Order Denying Motion to Stay Proceedings,
dated Nov. 17, 2005
TABLE OF AUTHORITIES
Page
ii
Cases Barnes v. E-Systems, Inc.,
501 U.S. 1301 (1991).............................................................................. passim Behrens v. Pelletier,
516 U.S. 299 (1996)........................................................................................16 Brown v. Gilmore,
533 U.S. 1301 (2001)................................................................................17, 19 Calderon v. Thompson,
523 U.S. 538 (1998)..........................................................................................9 Claiborne v. United States,
465 U.S. 1305 (1984)......................................................................................10 Deaver v. United States,
483 U.S. 1301 (1987)............................................................................9, 18, 19 Deering Milliken, Inc. v. FTC,
647 F.2d 1124 (D.C. Cir. 1978)........................................................................8 Garrison v. Hudson,
468 U.S. 1301 (1984)......................................................................................14 Griggs v. Provident Consumer Disc. Co.,
459 U.S. 56 (1982)..........................................................................................15 Gulfstream Aerospace Corp. v. Mayacamas Corp.,
485 U.S. 271 (1988)....................................................................................8, 19 Harlow v. Fitzgerald,
457 U.S. 800 (1982)........................................................................................16 Haw. Housing Auth. v. Midkiff,
463 U.S. 1323 (1983)........................................................................................9 Heckler v. Redbud Hosp. Dist.,
473 U.S. 1308 (1985)......................................................................................19 Houchins v. KQED, Inc.,
429 U.S. 1341 (1977)......................................................................................17 In re S. African Apartheid Litig.,
346 F. Supp. 2d 538 (S.D.N.Y. 2004).............................................................10 Kimble v. Swackhamer,
439 U.S. 13855 (1978)....................................................................................15
TABLE OF AUTHORITIES (continued)
Page
iii
Kirkham v. Societe Air Fr., 429 F.3d 288 (D.C. Cir. 2005)........................................................................12
Koon v. United States, 518 U.S. 81 (1996)..........................................................................................17
May v. Sheahan, 226 F.3d 876 (7th Cir. 2000)..........................................................................16
Mitchell v. Forsyth, 472 U.S. 511 (1985)..................................................................................12, 13
N.Y. Natural Res. Def. Council, Inc. v. Kleppe, 429 U.S. 1307 (1976)......................................................................................14
Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Comm’n, 479 U.S. 1312 (1986)................................................................................17, 19
Princz v. Federal Republic of Germany, 998 F.2d 1 (D.C. Cir. 1993)............................................................................16
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)..................................................................................11, 21
Stewart v. Donges, 915 F.2d 572 (10th Cir. 1990)........................................................................16
Stroup v. Willcox, 127 S. Ct. 851 (2006)........................................................................................9
Times-Picayune Pub’g Corp. v. Schulingkamp, 419 U.S. 1301 (1974)........................................................................................9
an order refusing to dismiss on double jeopardy or qualified immunity
grounds relates to the entire action and, therefore, it divests the district court
of jurisdiction to proceed with any part of the action against an appealing
defendant.”).2
The same result would follow in this case if petitioners are correct that,
as in the contexts of foreign sovereign immunity and qualified immunity, the
2 Cf. Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (explaining that
“protection afforded by qualified immunity” encompasses “not merely to avoid standing trial, but also to avoid the burdens of such pretrial matters as discovery”) (citation and internal quotation marks omitted); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“Until this threshold immunity question is resolved, discovery should not be allowed”).
17
district court’s denial of dismissal was an appealable collateral order.
Consequently, if this Court were to grant certiorari and were to agree with
petitioners that the district court’s denial of dismissal was appealable under
the collateral order doctrine, the continuation of proceedings in the district
court would be beyond that court’s jurisdiction. That possibility reinforces
the need for a stay of the district court proceedings pending this Court’s
disposition of the petition for certiorari.
B. The District Court’s Erroneous Denial Of Petitioners’ Request for a Stay Pending Certiorari Does Not Warrant Deference
1. While “due deference” ordinarily may be owed to a lower court’s
decision declining to issue a stay, Houchins v. KQED, Inc., 429 U.S. 1341,
1345 (1977) (Rehnquist, J., in chambers), no such deference is warranted
here because the district court based its decision on a fundamental legal
error. Cf. Koon v. United States, 518 U.S. 81, 100 (1996) (district court
necessarily abuses its discretion when it acts on the basis of an erroneous
legal standard). In rejecting petitioners’ request, the district court applied
the standard for evaluating a request for an injunction pending consideration
of a certiorari petition. Attach. C, infra, 3-4. Such an injunction may be
granted only if the legal rights at issue are “indisputably clear” and “in the
most critical and exigent circumstances.” Brown v. Gilmore, 533 U.S. 1301,
1303 (2001) (Rehnquist, C.J., in chambers); Ohio Citizens for Responsible
Energy, Inc. v. Nuclear Regulatory Comm’n, 479 U.S. 1312, 1313 (1986)
(Scalia, J., in chambers)). Holding that petitioners have no “indisputably
18
clear” entitlement to relief, and finding no critical or exigent circumstances
that would justify a writ of injunction, the district court denied the motion.
Attach. C, infra, 3-5. The court, however, plainly erred in applying the
heightened standard that would apply to a request for an injunction:
Petitioners sought a stay of district court proceedings, not an injunction.
The standard for seeking a stay of proceedings pending certiorari is the
Barnes standard, not the injunction standard relied on by the district court.
Indeed, this Court has applied the stay-pending-certiorari standard, rather
than the injunction standard, in evaluating an application for a stay of
proceedings in circumstances virtually identical to this case. In Deaver v.
United States, 483 U.S. 1301 (1987) (Rehnquist, C.J., in chambers), the
applicant requested a stay of criminal trial proceedings in the district court
pending this Court’s disposition of his petition for a writ of certiorari. Id. at
1301-02. As in this case, the court of appeals had dismissed his interlocutory
appeal for lack of appellate jurisdiction, and the petition sought review of
that judgment based on the collateral order doctrine. Id. Chief Justice
Rehnquist applied the equivalent of the Barnes standard. He explained that
“[t]he standards for granting a stay pending disposition of a petition for
certiorari are well settled,” requiring that a Circuit Justice “determine
whether four Justices would vote to grant certiorari,” “give some
consideration as to predicting the final outcome of the case in this Court,” and
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“balance the so-called ‘stay equities.’” Id. (quoting Heckler v. Redbud Hosp.
Dist., 473 U.S. 1308, 1311-12 (1985) (Rehnquist, J., in chambers)).
The district court therefore erred in relying on injunction cases like
Ohio Citizens and Brown. See Attach. C, infra, 3-4. The relief sought by the
applicant in Ohio Citizens was a court-ordered shutdown of a nuclear plant
pending direct appeal. 479 U.S. at 1312. Accordingly, as Justice Scalia
explained in denying the application, the applicant sought not a stay but an
injunction: “[w]hat the applicant would require in order to achieve the
substantive relief that it seeks is an original writ of injunction * * * against
full-power operation of the powerplant.” Id. at 1313; see id. (distinguishing
injunction from stay, which “simply suspend[s] judicial alteration of the
status quo”). Similarly, in Brown, Chief Justice Rehnquist required a
showing of “the most critical and exigent circumstances” and “indisputably
clear” entitlement to relief because the applicants sought, “not merely a stay
of a lower court judgment, but an injunction against the enforcement of a
presumptively valid state statute.” 533 U.S. at 1303.
In this case, petitioners do not seek to enjoin respondents from
engaging in primary conduct, such as the operation of a power plant. Nor do
they seek to enjoin the enforcement of a statute. Rather, petitioners simply
seek to stay proceedings in the district court. This Court has made clear that
a stay of that kind is categorically distinct from an injunction. See
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 279 (1988)
20
(“An order by a federal court that relates only to the conduct or progress of
litigation before that court ordinarily is not considered an injunction.”).
Consequently, as the Deaver decision makes clear, the Barnes framework,
rather than the injunction standard, governs petitioners’ request. The
district court was clearly mistaken in concluding otherwise.
2. The district court also concluded that petitioners failed to
demonstrate irreparable injury. That conclusion was based on a fundamental
misunderstanding of petitioners’ claim of irreparable injury. The district
court was of the view that petitioners claimed that “any burden threatened
by ongoing discovery and trial proceedings would, ‘presto,’ escalate to the
‘irreparable’ category once a party simply moved to stay those proceedings by
terming them ‘nonjusticiable.’” Attach. C, infra, 3-4. But petitioners make
no such claim. Rather, petitioners’ contention is that discovery and trial
cause irreparable injury in circumstances in which the political question
claim is that litigation itself would create a serious risk of harm to the foreign
policy interests of the United States.
The district court also concluded that the balance of equities favored
the denial of a stay in light of “the injuries and deaths of kin allegedly
suffered by Plaintiffs (not to mention the long delays already encountered in
bringing their claims to issue on their merits).” Attach. C, infra, 5. But the
lengthy delay before the commencement of discovery in this case is directly
attributable to respondents’ decision to prosecute this action in an American
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court, despite the fact that it challenges alleged abuses by the Indonesian
military against Indonesian citizens in Indonesia. The district court has
dismissed almost all of respondents’ claims, and petitioners continue to
challenge the court’s personal jurisdiction, as well as its application of the
local laws of the District of Columbia (or any U.S. state) to alleged conduct by
Indonesian military officers occurring within Indonesia and directed at
Indonesian plaintiffs.3 Although the district court is correct, Attach. C, infra,
5, that the proposed stay, depending on the disposition of the petition for
certiorari, could last until this Court reaches the merits, that possibility only
reinforces the need for a stay. With a trial date set for June 2008 and
ongoing discovery in the interim, continued proceedings in the district court
pose a significant and increasing risk of serious adverse consequences for the
foreign policy interests of the United States.
Finally, the district court observed that it had “developed a discovery
plan” that it believed was “carefully tailored to respect Indonesian
sovereignty and the U.S. foreign policy concerns about it.” Attach. C, infra, 1-
2. But there of course can be no guarantee that the testimony of future
deponents will steer clear of matters that could harm the United States’
3 The delay in the start of discovery until 2006 resulted from the
district court’s need to consider (1) the motion to dismiss (filed in October 2001, and resolved in October 2005, see Pet. App. 50a); (2) this Court’s intervening decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), which prompted the dismissal of respondents’ federal claims; and (3) multiple written warnings about the consequences of the litigation from the United States (2002, 2004, and 2005) and government of Indonesia (2002, 2005).
22
relations with Indonesia. And whatever may be the district court’s beliefs
concerning the effectiveness of its efforts to “tailor” the current phase of
discovery, those beliefs have no bearing on the risk that subsequent
proceedings whose shape is as-yet indeterminate—including possibly a full-
scale trial—would call for intrusive inquiries into sensitive matters involving
actions by Indonesian soldiers on Indonesian soil in the midst of an
Indonesian civil war. Indeed, the district court specifically identified the
approaching June 2008 trial date as a reason to deny a stay, observing that
the grant of a stay would entail “wait[ing] for the Supreme Court to decide
whether to grant certiorari, and, if it grants certiorari, to consider and issue a
decision”—a prospect that the district court deemed unacceptable. Attach. C,
infra, 5.
Moreover, the risk of harm to the United States’ foreign policy
interests does not stem solely from a concern that continued discovery and
trial proceedings may delve into specific matters that could imperil foreign
relations. Rather, a central concern is that Indonesia generally perceives the
proceedings “as a U.S. court trying the [Government of Indonesia] for its
conduct of a civil war in Aceh,” and that the “Indonesian response to such
perceived U.S. ‘interference’ in its internal affairs could impair cooperation
with the U.S. across the full spectrum of diplomatic initiatives, including
counterterrorism, military and police reform, and economic and judicial
reform.” Pet. App. 134a-135a. That sort of risk by nature grows over time:
23
the longer the litigation continues, the greater the likelihood that Indonesia
would perceive the proceedings as an affront to the point where it reduces its
cooperation with the United States on matters of vital interest to the United
States. Indeed, Indonesia again “reaffirm[ed]” its objections to the
continuation of the litigation as recently as in the February 2007 diplomatic
note. Id. at 185a-186a. The fact that the proceedings to date may have
possibly avoided causing a critical rift in the relations between the two
countries—or at least a rift known to the public—does not diminish the risk
that continuation of the litigation would bring about that result.4
4 The district court suggested, based on a comment by defense counsel
during a status conference on May 1, 2006, that both the United States and the government of Indonesia are “comfortable” with the court’s discovery plan. Attach. C, infra, 2. That comment, however, arose in the context of a hearing in which the district court already had decided to press ahead with discovery, and the parties were asked to choose between discovery plans on the understanding that discovery was to go forward. Defense counsel’s comment in a status conference endorsing one set of discovery procedures over another should not be interpreted as an admission—let alone an admission on behalf of the United States and Indonesia—that all concerns about discovery had been addressed. Tellingly, the government of Indonesia subsequently made plain its “discomfort” with the district court’s discovery plan in the February 2007 diplomatic note warning that continuation of the proceedings threatened the peace process in the Aceh province of Indonesia. Pet. App. 185a-186a.
24
CONCLUSION
For the foregoing reasons, petitioners respectfully request a stay of
proceedings in the district court pending this Court’s disposition of the
petition for a writ of certiorari in Exxon Mobil Corp. v. Doe I, No. 07-81.
MARTIN J. WEINSTEIN ROBERT J. MEYER WILLKIE FARR & GALLAGHER LLP 1875 K Street, N.W. Washington, DC 20006 (202) 303-1000 THEODORE V. WELLS, JR. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 ALEX YOUNG K. OH PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1615 L Street, NW, Suite 1300 Washington, DC 20036
WALTER E. DELLINGER Counsel of Record SRI SRINIVASAN IRVING L. GORNSTEIN O’MELVENY & MYERS LLP 1625 Eye St., NW Washington, DC 20006 (202) 383-5300 PAUL W. WRIGHT PATRICK J. CONLON EXXON MOBIL CORPORATION 800 Bell Street Houston, TX 77002
Attorneys for Defendants Exxon Mobil Corporation, Mobil Corporation, ExxonMobil Oil Corporation,