FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CYNTHIA CORRIE on their own behalf and as Personal Representatives of Rachel Corrie and her next of kin including her siblings CRAIG CORRIE on their own behalf and as Personal Representatives of Rachel Corrie and her next of kin including her siblings MAHMOUD OMAR AL SHO BI FATHIYA MUHAMMAD SULAYMAN FAYED FAYEZ ALI MOHAMMED ABU HUSSEIN MAJEDA RADWAN ABU HUSSEIN EIDA IBRAHIM SULEIMAN KHALAFALLAH Plaintiffs Appellants v CATERPILLAR INC Defendant Appellee No 05 36210 D C No CV 05 05192 FDB OPINION Appeal from the United States District Court for the Western District of Washington Franklin D Burgess District Judge Presiding Argued and Submitted July 9 2007 Seattle Washington Filed September 17 2007 Before Arthur L Alarc n Michael Daly Hawkins and Kim McLane Wardlaw Circuit Judges Opinion by Judge Wardlaw 12485 12488 CORRIE v CATERPILLAR INC COUNSEL Gwynne Skinner and Ronald C Slye Seattle University Ronald A Peterson Law Clinic Seattle Washington Maria C LaHood and Jennifer Green Center for Constitutional Rights New York New York and Erwin Chemerinsky argued for the plaintiffs appellants Robert G Abrams argued Howrey LLP Washington D C Joanne E Caruso Richard J Burdge Jr and David G Meyer Howrey LLP Los Angeles California James L Magee Graham Dunn PLC Seattle Washington for the defendant appellee Ronald J Bettauer Deputy Legal Adviser Department of State Jeffrey Buchwoltz Acting Assistant Attorney General John McKay U S Attorney Douglas N Letter Robert M Loeb argued Attorneys Appellate Staff Department of Justice Washington D C for amicus curiae the United States Ralph G Steinhardt George Washington University Law School Washington D C for amicus curiae International Law Scholars Marco Simons and Richard L Herz Earthrights International Washington D C for amicus curiae Career Foreign Service Diplomats CORRIE v CATERPILLAR INC 12489 Allan Ides Loyola Law School Los Angeles California for amicus curiae Professors of Constitutional and International Law Terry Collingsworth for amicus curiae the International Labor Rights Fund Tyler R Giannini Human Rights Program of Harvard Law School Cambridge Massachusetts for amicus curiae Law Professors Robin S Conrad and Amar D Sarwal National Chamber Litigation Center Inc Washington D C Maria Ghazal Business Roundtable Washington D C Paul R Friedman John Townsend Rich and William F Sheehan Goodwin Procter LLP Washington D C for amicus curiae the Chamber of Commerce of the United States of America and Business Roundtable OPINION WARDLAW Circuit Judge Plaintiffs Cynthia and Craig Corrie Mahmoud Al Sho bi Fathiya Muhammad Sulayman Fayed Fayez Ali Mohammed Abu Hussein Majeda Radwan Abu Hussein and Eida Ibrahim Suleiman Khalafallah filed this action after their family members were killed or injured when the Israeli Defense Forces IDF demolished homes in the Palestinian Territories using bulldozers manufactured by Caterpillar Inc a United States corporation The IDF ordered the bulldozers directly from Caterpillar but the United States government paid for them The district court dismissed the action under Federal Rule of Civil Procedure 12 b 6 finding it lacked jurisdiction because inter alia the political question doctrine precludes decision by an Article III court 12490 CORRIE v CATERPILLAR INC Because we agree that plaintiffs claims present nonjusticiable political questions that deprive the district court of subject matter jurisdiction when construed under Federal Rule of Civil Procedure 12 b 1 we do not reach the remaining questions presented under state federal and international law Plaintiffs action cannot proceed because its resolution would require the federal judiciary to ask and answer questions that are committed by the Constitution to the political branches of our government We have jurisdiction under 28 U S C 1291 and we affirm I A Facts and Background The Allegations in the Complaint Because this action was dismissed under Federal Rule of Civil Procedure 12 b 6 we accept all facts alleged in the complaint as true and construe them in the light most favorable to the plaintiffs Maduka v Sunrise Hosp 375 F 3d 909 911 9th Cir 2004 Following the Six Day War in 1967 Israel occupied and took control of the West Bank and Gaza Strip Caterpillar is the world s leading manufacturer of heavy construction and mining equipment Among its customers is the IDF which since 1967 has utilized Caterpillar bulldozers to demolish homes in the Palestinian Territories According to plaintiffs complaint Caterpillar sold the bulldozers to the IDF despite its actual and constructive notice that the IDF would use them to further its home destruction policy in the Palestinian Territories a policy plaintiffs contend violates international law Seventeen members of plaintiffs families sixteen Palestinians and one American were killed or injured in the course of the demolitions CORRIE v CATERPILLAR INC B 12491 Facts Beyond the Complaint1 The complaint alleges that Caterpillar sold bulldozers to the IDF but it does not explain how those bulldozers were financed There is undisputed evidence in the record however that the United States government paid for every bulldozer that Caterpillar transferred to the IDF Caterpillar submitted an affidavit by Frank Weinberg Weinberg Declaration General Manager of Caterpillar s Defense Federal Products division in which Weinberg states that the United States government has approved and financed all contracts between Israel and Caterpillar dating back to at least 1990 and that Caterpillar does not sell products to the government of Israel in sales that are not approved by the U S government Appended to the Weinberg Declaration is a copy of a letter from the Defense Security Cooperation Agency DSCA an arm of the United States Department of Defense sent in September 2001 to the Israeli government and copied to Caterpillar DSCA letter The letter grants f unding approval for the Israeli government s purchase of fifty Caterpillar D9 bulldozers under the Foreign Military Financing program FMF Under the FMF foreign governments enter into contracts directly with American defense contractors and then apply to the DSCA for approval of funding on a case by case basis 2 The DSCA letter also states that the DSCA find s the proposed procurement to be consistent with the purposes of 1 As we discuss infra it is proper to consider facts in the record found outside the complaint because
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