Baruch Yehuda Ziv Brill v. Chevron Corp.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARUCH YEHUDA ZIV BRILL, et al., No. 18-16862
Plaintiffs-Appellants, D.C. No. 3:15-cv-04916-JD
v.
MEMORANDUM*
CHEVRON CORPORATION, a Delaware
Corporation,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of California
James Donato, District Judge, Presiding
Submitted February 14, 2020**
San Francisco, California
Before: RAWLINSON and CALLAHAN, Circuit Judges, and S. MURPHY,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephen J. Murphy, III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
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Appellants, 18 United States nationals and 298 foreign nationals, brought the
present action against Chevron and claimed that surcharges from Chevron’s
purchase of Iraqi crude oil were remitted to Saddam Hussein, who used the funds
to finance terrorist activity in Israel from 2000 to 2002. That activity allegedly
harmed Appellants and their family members who now appeal the district court’s
order dismissing the second amended complaint for failing to state a cognizable
claim. We have jurisdiction under 28 U.S.C. § 1291 and review de novo. Carlin v.
DairyAmerica, Inc., 705 F.3d 856, 866 (9th Cir. 2013).
1. Chevron’s purchases of crude oil from a third-party seller, as alleged,
do not constitute acts of international terrorism as defined by 18 U.S.C. § 2333(a).
The mere fact that oil purchases allegedly included kickbacks that violated United
Nations-imposed sanctions did not make the purchases terrorist acts. Appellants
failed to plausibly allege that their injuries were “by reason of” Chevron’s oil
purchases, which requires a proximate causation showing and “a showing of at
least some direct relationship between [Chevron’s] acts and [Appellants’] injuries.”
Fields v. Twitter, Inc., 881 F.3d 739, 744, 748 (9th Cir. 2018).
2. To state an ATA secondary liability claim, Appellants must plausibly
allege that Chevron aided and abetted persons who committed an act of
international terrorism. 18 U.S.C. § 2333(d). Here, the nature of the terrorist acts
had no connection to Chevron’s independent purchase of crude oil, and there is no
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allegation that Chevron encouraged the acts. There is no allegation that Chevron
had any relation to the terrorist organization that executed the attacks in Israel. At
most, Chevron had a contractual relationship with a third party that sold Iraqi crude
oil on the open market. Chevron’s actions, as pleaded, did not amount to providing
substantial assistance to the foreign terrorist organization that perpetrated the Israel
attacks.
If Chevron’s purchases of crude oil constituted “substantial assistance” to
the terrorist activity in Israel, Appellants did not sufficiently plead “actual
knowledge by the alleged aider and abettor of the wrong and of his or her role in
furthering it.” Harmsen v. Smith, 693 F.2d 932, 943 (9th Cir. 1982) (collecting
cases). Appellants’ allegations at most indicate that Chevron knew that a portion of
its purchase price of Iraqi crude oil would be remitted to Iraq as a kickback. But
they fail to allege any facts that indicate that Chevron knew its kickbacks would be
used to provide financial support to the terrorist organization perpetrating the
terrorist activity in Israel.
3. To state an aiding and abetting ATS claim, Appellants must allege the
requisite mens rea and actus reus—i.e., purposefully (or knowingly) providing
substantial assistance to an international crime. See generally Doe I v. Nestle USA,
Inc. ("Nestle I"), 766 F.3d 1013, 1023, 1026 (9th Cir. 2014). We have yet to
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determine whether knowledge or purpose is the proper mens rea standard under the
ATS. But Appellants’ claims fail even under the less stringent knowledge standard.
The allegations in the second amended complaint at most suggest that
Chevron knew that a kickback from its purchase of crude oil from a third party
would be remitted to Iraq. But the allegation that Chevron knew this does not
logically lead to the inference that Chevron knew that those funds were then
provided to a terrorist organization and that those same funds were specifically
used to finance the terrorist activity in Israel that resulted in the injuries to
Appellants and their family members. The district court properly found that
Appellants failed to sufficiently plead allegations to sustain their ATA and ATS
claims against Chevron.
Accordingly, we AFFIRM.
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