Prov Govt Marinduque v. Placer Dome, Inc. ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PROVINCIAL GOV’T OF MARINDUQUE, 
Plaintiff-Appellant, No. 07-16306
v.
 D.C. No.
CV-05-01299-BES
PLACER DOME, INC.; BARRICK GOLD
CORP., OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Brian E. Sandoval, District Judge, Presiding
Argued and Submitted
March 10, 2009—San Francisco, California
Filed September 29, 2009
Before: M. Margaret McKeown and Sandra S. Ikuta,
Circuit Judges, and Frederic Block,* District Judge.
Opinion by Judge McKeown
*The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
14015
MARINDUQUE v. PLACER DOME, INC. 14019
COUNSEL
Walter J. Scott, James D. McCarthy (argued), and David H.
Ammons, Diamond McCarthy LLP, Dallas, Texas; Neil Peck,
Snell & Wilmer LLP, Denver, CO; Patrick G. Byrne, Las
Vegas, Nevada, for the plaintiff-appellant.
Steve Morris, Rex D. Garner, Morris Pickering & Peterson,
Las Vegas, Nevada; Jerrold J. Ganzfried (argued), Edward
Han, Martin Cunniff, Howrey LLP, Washington, DC, for the
defendants-appellees.
14020 MARINDUQUE v. PLACER DOME, INC.
OPINION
McKEOWN, Circuit Judge:
Under the act of state doctrine, “the acts of foreign sover-
eigns taken within their own jurisdiction shall be deemed
valid.” W.S. Kirkpatrick & Co. v. Environmental Tectonics
Corp., 493 U.S. 400, 409 (1990). Founded on international
law, the doctrine also serves as a basis for federal-question
jurisdiction when the plaintiff’s complaint challenges the
validity of a foreign state’s conduct. We consider here
whether the district court had subject-matter jurisdiction over
this suit, based upon the act of state doctrine, such that
removal from state to federal court was proper. Because none
of the referenced conduct by the foreign sovereign—in this
case, the Philippine government—is essential to any of the
plaintiff’s causes of action, we reverse the district court’s
exercise of subject-matter jurisdiction under the act of state
doctrine.
BACKGROUND
The Provincial Government of Marinduque (“the Prov-
ince”) sued Placer Dome Corporation in 2005 in Nevada state
court for alleged human health, ecological, and economic
damages caused by the company’s mining operations on
Marinduque, an island province of the Republic of the Philip-
pines.1 According to the complaint, Placer Dome severely pol-
luted the lands and waters of Marinduque for some thirty
1
For purposes of determining whether removal was proper, our analysis
concerns “the pleadings filed at the time of removal without reference to
subsequent amendments.” Sparta Surgical Corp. v. Nat’l Ass’n of Sec.
Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998). The factual back-
ground is thus derived from the allegations in the original complaint filed
in state court.
The Province sued in Nevada because, according to the complaint,
Placer Dome conducts significant and continuous business in the state.
MARINDUQUE v. PLACER DOME, INC. 14021
years, caused two cataclysmic environmental disasters, poi-
soned the islanders by contaminating their food and water
sources, and then left the province without cleaning up the
mess—all in violation of Philippine law. The Province further
alleges that Placer Dome received certain forms of assistance
in its mining endeavors from the Philippine government.
More particularly, the Province contends that former Philip-
pine President Ferdinand Marcos, in exchange for a personal
stake in the mining operations, eased various environmental
protections obstructing Placer Dome’s way.
Immediately after the Province filed suit, Placer Dome
removed the case to federal district court for the District of
Nevada on the basis of federal-question jurisdiction. Specifi-
cally, Placer Dome contended that the case “tender[ed] ques-
tions of international law and foreign relations.” The Province
moved for an order requiring Placer Dome to show cause why
the action should not be remanded to the state court due to a
lack of subject-matter jurisdiction. The district court denied
the Province’s motion, holding that federal-question jurisdic-
tion existed under the act of state doctrine of the federal com-
mon law. Placer Dome moved to dismiss the suit for lack of
personal jurisdiction and forum non conveniens. The district
court granted limited discovery on personal jurisdiction.2
Before discovery was concluded, in March 2007, the United
States Supreme Court issued Sinochem International Co. v.
Malaysia International Shipping Corp., announcing that dis-
trict courts have latitude to rule on the threshold issue of
forum non conveniens before definitively ascertaining subject-
matter and personal jurisdiction. 549 U.S. 422, 432 (2007).
The district court stayed jurisdictional discovery, and ordered
briefing on the issue of forum non conveniens. Invoking
Sinochem, the district court dismissed the matter on forum
non conveniens grounds in favor of a Canadian forum. In rul-
2
Around this time, Barrick Gold Corporation was joined as a defendant
because it had obtained a controlling 81 percent interest in Placer Dome.
We refer to both defendants collectively as “Placer Dome.”
14022 MARINDUQUE v. PLACER DOME, INC.
ing on the Province’s motion for reconsideration, the district
court affirmed its earlier conclusion that “subject matter juris-
diction does, in fact, exist in this case, based upon the act of
state doctrine.”
ANALYSIS
I. Removal to Federal Court
This case was removed from state to federal court under 28
U.S.C. § 1441(a)3 on Placer Dome’s representation that the
Province’s claims implicated the federal common law of for-
eign relations. Removal was proper only if the district court
would have had original jurisdiction over the claims. Placer
Dome asserted jurisdiction pursuant to 28 U.S.C. § 1331,
which states that federal courts have jurisdiction over cases
presenting questions of federal constitutional, statutory, and
common law.
Federal courts may exercise federal-question jurisdiction
over an action in two situations. First, and most commonly,
a federal court may exercise federal-question jurisdiction if a
federal right or immunity is “ ‘an element, and an essential
one, of the plaintiff’s cause of action.’ ” Franchise Tax Bd. v.
Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 11
(1983) (quoting Gully v. First National Bank, 299 U.S. 109,
112 (1936)). Thus, the federal question on which jurisdiction
is premised cannot be supplied via a defense; rather, the fed-
eral question must “be disclosed upon the face of the com-
plaint, unaided by the answer.” Phillips Petroleum Co. v.
Texaco, Inc., 415 U.S. 125, 127-28 (1974) (per curiam). Sec-
ond, a federal court may have such jurisdiction if a state-law
3
The removal statute provides that “any civil action brought in a State
court of which the district courts of the United States have original juris-
diction, may be removed by the defendant or defendants, to the district
court of the United States for the district and division embracing the place
where such action is pending.” 28 U.S.C. § 1441(a).
MARINDUQUE v. PLACER DOME, INC. 14023
claim “necessarily raise[s] a stated federal issue, actually dis-
puted and substantial, which a federal forum may entertain
without disturbing any congressionally-approved balance of
federal and state judicial responsibilities.” Grable & Sons
Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314
(2005). Such a federal issue must be “a substantial one, indi-
cating a serious federal interest in claiming the advantages
thought to be inherent in a federal forum.” Id. at 313.
The removal statute is strictly construed against removal
jurisdiction. Syngenta Crop Prot., Inc. v. Henson, 537 U.S.
28, 32 (2002); California ex rel. Lockyer v. Dynegy, Inc., 375
F.3d 831, 838 (9th Cir. 2004). The defendant bears the burden
of establishing that removal is proper. Id.II. Determination of Removal Jurisdiction in Light of
Sinochem
The question before us, then, is whether the district court
had subject-matter jurisdiction under 28 U.S.C. § 1331. We
review de novo a district court’s determination that subject-
matter jurisdiction exists for a case that has been removed.
Schnabel v. Lui, 302 F.3d 1023, 1029 (9th Cir. 2002).
Before considering this issue, we first address Placer
Dome’s assertion that the district court dismissed this case on
forum non conveniens grounds without resolving the issue of
subject-matter jurisdiction. According to Placer Dome, the
district court exercised its discretion under the Supreme
Court’s decision in Sinochem “not [to] resolve whether it has
authority to adjudicate the cause (subject-matter jurisdiction)
or personal jurisdiction over the defendant if it determines
that, in any event, a foreign tribunal is plainly the more suit-
able arbiter of the merits of the case.” 549 U.S. at 425. If the
district court did not determine subject-matter jurisdiction,
Placer Dome intimates, then we are presented with only the
forum non conveniens dismissal to review. Placer Dome fur-
ther argues that, even if the district court concluded that
14024 MARINDUQUE v. PLACER DOME, INC.
subject-matter jurisdiction existed, that holding was alterna-
tive to the forum non conveniens determination.
We question whether Sinochem restricts our ability to
address an issue of subject-matter jurisdiction, even if charac-
terized as an alternative holding. “[W]e have an independent
obligation to examine our own and the district court’s juris-
diction.” Rivas v. Rail Delivery Serv., Inc., 423 F.3d 1079,
1082 (9th Cir. 2005). That obligation necessarily carries with
it the authority to determine for ourselves, under Sinochem,
whether the jurisdictional issue should be addressed, regard-
less of the path the district court chose to take.
In any event, Placer Dome misapprehends the proceedings
below. Following removal of this suit, the Province chal-
lenged the court’s subject-matter jurisdiction. The district
court agreed with Placer Dome that removal was proper, hold-
ing that the Province’s allegations invoked the act of state
doctrine and thus triggered federal-question jurisdiction. The
district court arguably cast a shadow upon that conclusion
when it dismissed the case on forum non conveniens grounds.
However, in its final order denying the Province’s motion for
reconsideration, the district court clarified that it had inadver-
tently placed its subject-matter jurisdiction in doubt and
explicitly affirmed its previous conclusion that the complaint
presented federal questions under the act of state doctrine.
Whether viewed as an alternative holding or not, it is abun-
dantly clear that the district court concluded it had subject-
matter jurisdiction over this suit.4
[1] In Sinochem, the Supreme Court considered whether a
district court must first conclusively establish its own jurisdic-
4
Having actually reached the question of subject-matter jurisdiction, the
district court skipped over, under Sinochem, only the issue of personal
jurisdiction. To be sure, the district court halted discovery on personal
jurisdiction—the only discovery permitted—following the issuance of
Sinochem.
MARINDUQUE v. PLACER DOME, INC. 14025
tion before dismissing a suit on the basis of forum non conve-
niens. Answering in the negative, the Court explained that,
because jurisdiction is vital only if a court intends to render
a determination on the merits of a case, “a federal court has
leeway ‘to choose among threshold grounds for denying audi-
ence to a case on the merits.’ ” 549 U.S. at 431 (quoting Ruhr-
gas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999)). And
because a forum non conveniens dismissal is not a merits
determination, the Court held that “[a] district court . . . may
dispose of an action by a forum non conveniens dismissal,
bypassing questions of subject-matter and personal jurisdic-
tion, when considerations of convenience, fairness, and judi-
cial economy so warrant.” Id. at 432. The court further
observed:
In the mine run of cases, jurisdiction “will involve
no arduous inquiry” and both judicial economy and
the consideration ordinarily accorded the plaintiff’s
choice of forum “should impel the federal court to
dispose of [those] issue[s] first.” Ruhrgas, 526 U.S.
at 587-88. But where subject-matter or personal
jurisdiction is difficult to determine, and forum non
conveniens considerations weigh heavily in favor of
dismissal, the court properly takes the less burden-
some course.
Id. at 436 (alterations in original).
[2] In Sinochem, the Supreme Court offered the lower
courts a practical mechanism for resolving a case that would
ultimately be dismissed. For a case originally filed in federal
court, the result would be the same, whether dismissed on
jurisdictional or forum non conveniens grounds—dismissal
would be inevitable and conclusive. For a case originating in
state court, however, the difference could be significant. If the
federal court dismisses on forum non conveniens grounds, the
case is dismissed. But if removal is improper, the case is
remanded to the state court. Thus, in a removal scenario, the
14026 MARINDUQUE v. PLACER DOME, INC.
sequencing of the decision may have practical consequences.5
In sum, Sinochem presents no bar to our reaching the issue of
whether the Province’s allegations invoke federal questions.
Here, of course, the district court made a threshold determina-
tion that it had federal-question jurisdiction under the act of
state doctrine, and it is to this question we now turn.
III. The Act of State Doctrine
Ultimately, the question of subject-matter jurisdiction here
is not particularly complex. Although the Province’s com-
plaint is lengthy, we should not duck the jurisdictional analy-
sis simply because we need to read and benchmark the
allegations and claims against the act of state doctrine, a prin-
ciple that is well established.
[3] Although there is no general federal common law, there
are enclaves of federal judge-made law. Banco Nacional de
Cuba v. Sabbatino, 376 U.S. 398, 426 (1964). One such
enclave concerns the law of international relations and foreign
affairs. Id. at 427. A long-standing common law principle, the
act of state doctrine precludes courts from evaluating the
validity of actions that a foreign government has taken within
its own borders. See W.S. Kirkpatrick, 493 U.S. at 409; Sab-
batino, 376 U.S. at 401; Underhill v. Hernandez, 168 U.S.
250, 252 (1897); see also Timberlane Lumber Co. v. Bank of
America, 549 F.2d 597, 605-07 (9th Cir. 1976) (recounting
history of the doctrine); Born and Rutledge, International
Civil Litigation in United States Courts 751-55 (2007) (same).
The doctrine reflects the concern that the judiciary, by ques-
tioning the validity of sovereign acts taken by foreign states,
may interfere with the executive branch’s conduct of foreign
policy. W.S. Kirkpatrick, 493 U.S. at 404.6 As a result, the
5
Sinochem did not contemplate the issue of removal, perhaps because
the suit under consideration was originally filed in federal court. See id.
at 427.
6
The Supreme Court in W.S. Kirkpatrick recognized that “the jurispru-
dential foundation for the act of state doctrine has undergone some evolu-
MARINDUQUE v. PLACER DOME, INC. 14027
doctrine requires that the “official act of a foreign sovereign
performed within its own territory” becomes “ ‘a rule of deci-
sion for the courts of this country.’ ” Id. at 405 (quoting
Ricaud v. American Metal Co., 246 U.S. 304, 310 (1918)).
[4] “[E]ven though the validity of the act of a foreign sov-
ereign within its own territory is called into question, the poli-
cies underlying the act of state doctrine may not justify its
application.” Id. at 409 (citing Sabbatino, 376 U.S. at 428).
The Supreme Court discussed three such policies in Sabba-
tino:
[1][T]he greater the degree of codification or con-
sensus concerning a particular area of international
law, the more appropriate it is for the judiciary to
render decisions regarding it . . . . [2][T]he less
important the implications of an issue are for our for-
eign relations, the weaker the justification for exclu-
sivity in the political branches. [3]The balance of
relevant considerations may also be shifted if the
government which perpetrated the challenged act of
state is no longer in existence.
Sabbatino, 376 U.S. at 428; see also W.S. Kirkpatrick, 493
U.S. at 409.
[5] The Supreme Court’s leading contemporary act of state
decision—W.S. Kirkpatrick—encapsulated the doctrine in this
way: “Act of state issues only arise when a court must decide
—that is, when the outcome of the case turns upon—the
effect of official action by a foreign sovereign. When that
question is not in the case, neither is the act of state doctrine.”
Id. at 406.
tion over the years[,]” and explained that the doctrine “is not some vague
doctrine of abstention but a ‘principle of decision binding on federal and
state courts alike.’ ” 493 U.S. at 404, 406 (quoting Sabbatino, 376 U.S. at
427).
14028 MARINDUQUE v. PLACER DOME, INC.
We followed this approach to the doctrine in Patrickson v.
Dole Food Co., 251 F.3d 795 (9th Cir. 2001), in which we
considered a complaint brought by Latin American banana
workers who asserted state law claims against multinational
fruit and chemical companies alleging exposure to toxic
chemicals. Because “nothing in plaintiffs’ complaint turns on
the validity or invalidity of any act of a foreign state[,]” we
rejected application of the act of state doctrine. Id. at 800.
The defendants in Patrickson argued that, despite there
being no act of state issues on the surface of the banana work-
ers’ complaint, “the case concerns a vital sector of the econo-
mies of foreign countries and so has implications for our
nation’s relations with those countries.” Id. We did not
embrace that argument, parting ways with other circuits that
had more broadly interpreted the doctrine as supplying
federal-question jurisdiction over any case that might affect
foreign relations regardless of whether federal law is raised in
the complaint. Sabbatino did not create an exception to the
well-pleaded complaint rule. Id. at 801-02. “What Congress
has not done is to extend federal-question jurisdiction to all
suits where the federal common law of foreign relations might
arise as an issue. We interpret congressional silence outside
these specific grants of jurisdiction as an endorsement of the
well-pleaded complaint rule.” Id. at 803.
With W.S. Kirkpatrick and Patrickson lighting our way, we
reach the heart of the matter.
IV. The Province’s Complaint Does Not Implicate the
Act of State Doctrine
The Province’s complaint weaves together numerous alle-
gations in a chronicle of skullduggery, toxic dumping, a col-
lapsed dam that polluted the surrounding areas, a river
flooded with poisonous mine tailings, and a corrupt govern-
ment that facilitated this conduct. In sum, the Province alleges
that Placer significantly harmed Marinduque and its people,
MARINDUQUE v. PLACER DOME, INC. 14029
including through the contamination and degradation of the
environment, which in turn caused blood diseases, skin disor-
ders, and stomach ailments among the islanders. And since
Placer Dome left Marinduque in 1997, it has done nothing,
according to the Province, to ameliorate the problems it cre-
ated, and has actively evaded responsibility.
These allegations are the backdrop for thirteen causes of
action under Philippine law: (1) violating the public trust; (2)
reckless imprudence, in violation of the Philippine penal
code; (3) simple imprudence, in violation of the Philippine
penal code; (4) violations of the Philippine water code; (5)
violations of a Philippine fisheries law; (6) and (7) violations
of Philippine pollution control laws; (8) violations of a Philip-
pine mining law; (9) quasi-delict (negligence); (10) quasi-
delict (public and/or private nuisance); (11) and (12) breaches
of contract; and (13) promissory estoppel. The Province
claimed environmental, economic, and human health dam-
ages; the cost of medical monitoring and care; and the cost of
environmental remediation. It prayed for injunctive relief as
well as damages.
In removing this suit to federal court, Placer Dome asserted
that the complaint tendered questions of international law and
foreign relations that furnished the district court with federal-
question jurisdiction. The district court agreed, concluding
that “Plaintiff’s Complaint is replete with allegations regard-
ing the Philippine Government’s activities, which contributed
to the environmental harm that Plaintiff has suffered.” In par-
ticular, the district court identified five allegations that, in its
view, invoked the act of state doctrine: (1) President Marcos
overturned a presidential proclamation to allow mining in a
forest reserve; (2) Marcos, and subsequent to his removal, a
presidential commission, owned 49 percent of the shares in
Marcopper, a subsidiary of Placer Dome; (3) Marcos ordered
a government commission to issue a permit allowing Marcop-
per to dump toxic tailings into Calancan Bay; (4) Marcos
ordered the same pollution commission to remove restraints
14030 MARINDUQUE v. PLACER DOME, INC.
it had placed on Marcopper’s dumping of waste into the bay;
and (5) President Aquino ordered a pollution control board
not to enforce a cease and desist order against Marcopper.
Citing these same allegations, Placer Dome argues that the act
of state doctrine bars this suit because the complaint is prem-
ised upon conduct that occurred pursuant to governmental
permits and other acts or omissions by the Philippine govern-
ment.
[6] Fatal to the district court’s removal jurisdiction, how-
ever, is that the act of state doctrine is implicated here only
defensively and the complaint does not “necessarily raise a
stated federal issue, actually disputed and substantial.”
Grable, 545 U.S. at 314. As previously explained, “[t]o bring
a case within the federal-question removal statute, a right or
immunity created by the Constitution or laws of the United
States must be an element,7 and an essential one, of the plain-
tiff’s cause of action.” Rivet v. Regions Bank of Louisiana,
522 U.S. 470, 475 (1998) (internal quotation marks omitted;
alteration omitted). That is, “the presence or absence of
federal-question jurisdiction is governed by the ‘well-pleaded
complaint rule,’ which provides that federal jurisdiction exists
only when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint.” Id. (internal quotation
marks omitted). “A defense is not part of a plaintiff’s properly
pleaded statement of his or her claim.” Id. (holding removal
to federal court may not be predicated upon the defense that
7
Therefore, “[a]lthough the act of state doctrine generally serves as a
defense, it can also be used affirmatively as the basis of a claim.” Patrick-
son, 251 F.3d at 800 n.2; see also Restatement (Third) of Foreign Rela-
tions Law § 443 cmt. i (1986) (noting that an act of state may be
“necessary to a litigant’s claim or defense”); Republic of Philippines v.
Marcos, 806 F.2d 344, 354 (2d Cir. 1986) (“We hold that federal jurisdic-
tion is present in any event because the claim raises, as a necessary ele-
ment, the question whether to honor the request of a foreign government
that the American courts enforce the foreign government’s directives to
freeze property in the United States subject to future process in the foreign
state.”).
MARINDUQUE v. PLACER DOME, INC. 14031
a claim is precluded by a prior federal judgment). Alterna-
tively, the complaint must raise a “federal issue[ ] embedded
in state-law claims” that meets the test set forth in Grable. 45
U.S. at 314
[7] Here, none of the supposed acts of state identified by
the district court is essential to the Province’s claims. Nor do
the other allegations in the complaint invoke an act of state as
an essential element of any claim. Nor does the complaint
“necessarily raise a stated federal issue, actually disputed and
substantial.” Id. To be sure, the complaint is sprinkled with
references to the Philippine government, Philippine law, and
the government’s complicity in the claimed damage to the
Marinduquenos. But the exercise of federal-question removal
jurisdiction requires more—it requires the assertion of a fed-
eral question on the face of the Province’s properly pleaded
complaint or a disputed, substantial federal issue that does not
disturb any congressionally-approved balances of state or fed-
eral judicial responsibilities. Just as raising the specter of
political issues cannot sustain dismissal under the political
question doctrine, neither does a general invocation of inter-
national law or foreign relations mean that an act of state is
an essential element of a claim. Cf. W.S. Kirkpatrick, 493 U.S.
at 409 (holding that federal courts ordinarily have the obliga-
tion to exercise their jurisdiction and “[t]he act of state doc-
trine does not establish an exception for cases and
controversies that may embarrass foreign governments”);
Sabbatino, 376 U.S. at 423 (“[I]t cannot of course be thought
that ‘every case or controversy which touches foreign rela-
tions lies beyond judicial cognizance.’ ” (quoting Baker v.
Carr, 369 U.S. 186, 211 (1962)); Alperin v. Vatican Bank,
410 F.3d 532, 537 (9th Cir. 2005) (observing the justiciability
inquiry under the political question doctrine is not applicable
to every political case, but is limited to political questions).
[8] Specifically, to prove that Placer Dome violated the var-
ious provisions of Philippine law that the Province sued
under, such as reckless and simple imprudence, the Province
14032 MARINDUQUE v. PLACER DOME, INC.
need not prove the validity or invalidity of an act of state. For
example, proving that Placer Dome was reckless when it hast-
ily built the Maguila-Guila dam, which allegedly collapsed
only two years after being built, does not implicate, let alone
require, any act of state. Rather, invocation of the act of state
doctrine here would be via Placer Dome’s defense to the
Province’s claims and as such cannot support removal juris-
diction. Nor has the Province “artfully pleaded” its claims to
defeat removal by omitting necessary federal questions.8
A review of the district court’s grounds for finding jurisdic-
tion nicely illustrates the difference between alleging that
governmental action led to the defendant’s challenged con-
duct and determining whether that governmental action is a
central element of the claim or its validity is actually disputed
by the parties. Thus, for example, the claims that former Pres-
ident Marcos opened a forest reserve to mining or owned a
high percentage of stock in the mining company or eased pol-
lution restrictions are not elements of the Province’s claim
that pollution and dumping occurred, that Placer Dome vio-
lated Philippine mining, fishing, water and pollution law, or
that it breached a contract with the Province. At best, the alle-
gations regarding the Philippine government’s involvement in
8
In Rivet v. Regions Bank of Louisiana, the Supreme Court explained:
Allied as an “independent corollary” to the well-pleaded com-
plaint rule is the further principle that a plaintiff may not defeat
removal by omitting to plead necessary federal questions. If a
court concludes that a plaintiff has “artfully pleaded” claims in
this fashion, it may uphold removal even though no federal ques-
tion appears on the face of the plaintiff’s complaint. The artful
pleading doctrine allows removal where federal law completely
preempts a plaintiff’s state-law claim. Although federal preemp-
tion is ordinarily a defense, once an area of state law has been
completely pre-empted, any claim purportedly based on that pre-
empted state-law claim is considered, from its inception, a federal
claim, and therefore arises under federal law.
522 U.S. at 475 (internal citations, some quotation marks, and alteration
omitted).
MARINDUQUE v. PLACER DOME, INC. 14033
Placer Dome’s endeavors, if true, may serve as a defense to
the Province’s claims, and the validity of these governmental
actions is not actually disputed. See Rivet, 522 U.S. at 475.
[9] Our conclusion that the complaint does not require an
application of the act of state doctrine is buttressed by the
observation that some of the key considerations motivating
the act of state doctrine carry little weight here. Consideration
of how Marcos’s corrupt actions facilitated environmental
irresponsibility in pursuit of profit is not an inquiry likely to
impact current foreign relations, and “the less important the
implications of an issue are for our foreign relations, the
weaker the justification for exclusivity in the political branch-
es.” Sabbatino, 376 U.S. at 428. Additionally, criticism of the
actions of former Philippine regimes is less treacherous than
reviewing the current government’s actions, as “[t]he balance
of relevant consideration may also be shifted if the govern-
ment which perpetrated the challenged act of state is no lon-
ger in existence . . . for the political interest of the country
may, as a result, be measurably altered.” Id. Finally, as the
Province points out, the Philippine government itself has
openly condemned the conduct of its past president. See also
Republic of the Philippines v. Marcos, 862 F.2d 1355, 1360-
61 (9th Cir. 1988) (en banc) (“A fortiori, when a ruler’s for-
mer domain has turned against him and seeks the recovery of
what it claims he has stolen, the classification [of Marcos’s
past acts as ‘acts of state’] has little or no applicability.”).
Most important, the parties’ dispute as framed by the com-
plaint does not require us to pass on the validity of the Philip-
pines’ governmental actions.
In sum, our review of the complaint does not sustain Placer
Dome’s claim that the act of state doctrine is in play. Nothing
in the complaint would require a court to pass judgment on
any official act of the Philippine government. See W.S. Kirk-
patrick, 493 U.S. at 405.
14034 MARINDUQUE v. PLACER DOME, INC.
CONCLUSION
[10] The Province’s complaint does not present a federal
question based upon the act of state doctrine. The district
court therefore lacked subject-matter jurisdiction over this suit
and removal from state court was improper. We reverse,
vacate the forum non conveniens dismissal, and remand with
instructions to remand to the state court.
REVERSED AND REMANDED.