Maynas Hualinga, personally v. Occidental Petroleum Corporation, a Delaware Corporation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 TOMAS MAYNAS CARIJANO; ROXANA
GARCIA DAHUA, a minor, by her
guardian Rosario Dahua Hualinga;
ROSARIO DAHUA HUALINGA,
personally and on behalf of her
minor child Roxana Garcia Dahua;
NILDA GARCIA SANDI, a minor, by
her guardian Rosalbina Hualinga
Sandi; ROSALBINA HUALINGA SANDI,
personally and on behalf of her
minor child Nilda Garcia Sandi;
ELENA MAYNAS MOZAMBITE, a
minor, by her guardian Gerardo
Maynas Hualinga; GERARDO No. 08-56187
MAYNAS HUALINGA, personally and D.C. No. on behalf of his minor child Elena  2:07-cv-05068-PSG- Maynas Mozambite; ALAN
PJW CARIAJANO SANDI, a minor, by his
guardian Pedro Sandi; PEDRO
SANDI WASHINGTON, personally and
on behalf of his minor child Alan
Cariajano Sandi; ELISA HUALINGA
MAYNAS, a minor, by her
guardians Daniel Hualinga Sandi
and Andrea Maynas Cariajano;
DANIEL HUALINGA SANDI,
personally and on behalf of his
minor child Elisa Hualinga
Maynas; ANDREA MAYNAS
CARIAJANO, personally and on
behalf of her minor child Elisa 
5999

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 Hualinga Maynas; CERILO
HUALINGA HUALINGA, a minor, by
his guardians Roman Hualinga
Sandi and Rosa Hualinga; ROMAN
HUALINGA SANDI, personally and
on behalf of his minor child Cerilo
Hualinga Hualinga; ROSA
HUALINGA, personally and on
behalf of her minor child Cerilo
Hualinga Hualinga; RODOLFO
MAYNAS SUAREZ, a minor, by his
guardians Horacio Maynas
Cariajano and Delmencia Suarez
Diaz; HORACIO MAYNAS CARIAJANO,
personally and on behalf of his
minor child Rodolfo Maynas
Suarez; DELMENCIA SUAREZ DIAZ, 
personally and on behalf of her
minor child Rodolfo Maynas
Suarez; KATIA HUALINGA SALAS, a
minor, by her guardians Alejandro
Hualinga Chuje and Linda Salas
Pisongo; ALEJANDRO HUALINGA
CHUJE, personally and on behalf of
his minor child Katia Hualinga
Salas; LINDA SALAS PISONGO,
personally and on behalf of her
minor child Katia Hualinga Salas;
FRANCISCO PANAIGO PAIMA, a
minor, by his guardians Milton
Panaigo Diaz and Anita Paima
Cariajano; MILTON PANAIGO DIAZ,
personally and on behalf of his 
6000 CARIJANO v. OCCIDENTAL PETROLEUM

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 minor child Francisco Panaigo
Paima; ANITA PAIMA CARIAJANO,
personally and on behalf of her
minor child Francisco Paniago
Paima; ADOLFINA GARCIA SANDI,
personally and on behalf of her
deceased minor child Olivio Salas
Garcia; AMAZON WATCH, INC., a
 Montana corporation,
Plaintiffs-Appellants,
v.
OCCIDENTAL PETROLEUM
CORPORATION, a Delaware
Corporation; OCCIDENTAL PERUANA,
INC., a California Corporation,
Defendants-Appellees. 
6001 CARIJANO v. OCCIDENTAL PETROLEUM

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 TOMAS MAYNAS CARIJANO; ROXANA
GARCIA DAHUA, a minor, by her
guardian Rosario Dahua Hualinga;
ROSARIO DAHUA HUALINGA,
personally and on behalf of her
minor child Roxana Garcia Dahua;
NILDA GARCIA SANDI, a minor, by
her guardian Rosalbina Hualinga
Sandi; ROSALBINA HUALINGA SANDI,
personally and on behalf of her
minor child Nilda Garcia Sandi;
ELENA MAYNAS MOZAMBITE, a
minor, by her guardian Gerardo No. 08-56270Maynas Hualinga; GERARDO
MAYNAS HUALINGA, personally and D.C. No.
on behalf of his minor child Elena 2:07-cv-05068-PSG- 
Maynas Mozambite; ALAN PJW
CARIAJANO SANDI, a minor, by his ORDER
guardian Pedro Sandi; PEDRO
SANDI WASHINGTON, personally and
on behalf of his minor child Alan
Cariajano Sandi; ELISA HUALINGA
MAYNAS, a minor, by her
guardians Daniel Hualinga Sandi
and Andrea Maynas Cariajano;
DANIEL HUALINGA SANDI,
personally and on behalf of his
minor child Elisa Hualinga
Maynas; ANDREA MAYNAS
CARIAJANO, personally and on
behalf of her minor child Elisa 
6002 CARIJANO v. OCCIDENTAL PETROLEUM

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 Hualinga Maynas; CERILO
HUALINGA HUALINGA, a minor, by
his guardians Roman Hualinga
Sandi and Rosa Hualinga; ROMAN
HUALINGA SANDI, personally and
on behalf of his minor child Cerilo
Hualinga Hualinga; ROSA
HUALINGA, personally and on
behalf of her minor child Cerilo
Hualinga Hualinga; RODOLFO
MAYNAS SUAREZ, a minor, by his
guardians Horacio Maynas
Cariajano and Delmencia Suarez
Diaz; HORACIO MAYNAS CARIAJANO,
personally and on behalf of his
minor child Rodolfo Maynas
Suarez; DELMENCIA SUAREZ DIAZ, 
personally and on behalf of her
minor child Rodolfo Maynas
Suarez; KATIA HUALINGA SALAS, a
minor, by her guardians Alejandro
Hualinga Chuje and Linda Salas
Pisongo; ALEJANDRO HUALINGA
CHUJE, personally and on behalf of
his minor child Katia Hualinga
Salas; LINDA SALAS PISONGO,
personally and on behalf of her
minor child Katia Hualinga Salas;
FRANCISCO PANAIGO PAIMA, a
minor, by his guardians Milton
Panaigo Diaz and Anita Paima
Cariajano; MILTON PANAIGO DIAZ,
personally and on behalf of his 
6003 CARIJANO v. OCCIDENTAL PETROLEUM

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 minor child Francisco Panaigo
Paima; ANITA PAIMA CARIAJANO,
personally and on behalf of her
minor child Francisco Paniago
Paima; ADOLFINA GARCIA SANDI,
personally and on behalf of her
deceased minor child Olivio Salas
Garcia; AMAZON WATCH, INC., a
 Montana corporation,
Plaintiffs-Appellees,
v.
OCCIDENTAL PETROLEUM
CORPORATION, a Delaware
Corporation; OCCIDENTAL PERUANA,
INC., a California Corporation,
Defendants-Appellants. 
Filed May 31, 2012
Before: Mary M. Schroeder, Kim McLane Wardlaw, and
Ronald M. Gould, Circuit Judges.
Order;
Dissent by Chief Judge Kozinski;
Concurrence by Judge Wardlaw
ORDER
The panel unanimously voted to deny the petition for panel
rehearing. Judges Wardlaw and Gould also voted to deny the
petition for rehearing en banc and Judge Schroeder so recom-
mended.
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The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
ter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc con-
sideration. Fed. R. App. P. 35. Judge Bea was recused.
The petition for rehearing en banc is DENIED
Chief Judge KOZINSKI, with whom Judges
O’SCANNLAIN, CALLAHAN, IKUTA and N.R. SMITH
join, dissenting:
For nearly 150 years, the Supreme Court has consistently
and repeatedly held that, “ ‘[w]ithout jurisdiction the court
cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and dis-
missing the cause.’ ” Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S.
(7 Wall.) 506, 514 (1868)). It is therefore hornbook law that,
“ ‘[o]n every . . . appeal, the first and fundamental question
is that of jurisdiction, first, of this court, and then of the court
from which the record comes. This question the court is
bound to ask and answer for itself, even when not otherwise
suggested, and without respect to the relation of the parties to
it.’ ” Id. (quoting Great S. Fire Proof Hotel Co. v. Jones, 177
U.S. 449, 453 (1900)) (emphasis added).
Tossing this instruction aside, the majority refuses to
address Defendants’ claim that Amazon Watch lacks Article
III standing—“a threshold matter central to our subject matter
jurisdiction.” Bates v. United Parcel Serv., Inc., 511 F.3d 974,
985 (9th Cir. 2007) (en banc). Instead, the majority “as-
sume[s] that Amazon Watch has standing for the purposes of
[conducting] the forum non conveniens analysis.” Carijano v.
Occidental Petroleum Corp., 643 F.3d 1216, 1228 (9th Cir.
6005 CARIJANO v. OCCIDENTAL PETROLEUM

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2011). Then, assigning great weight to Amazon Watch’s sta-
tus as a domestic plaintiff, the majority lets the entire case
stay in federal court. Id. at 1234. On remand, Amazon Watch
might be dismissed for lack of standing, but the rest of the
case may proceed to the merits. Id. at 1236-37.
If this sounds familiar, that’s because it is. Until the
Supreme Court put a stop to it, “[t]he Ninth Circuit . . .
denominated this practice—which it characterize[d] as
‘assuming’ jurisdiction for the purpose of deciding the merits
—the ‘doctrine of hypothetical jurisdiction.’ ” Steel Co., 523
U.S. at 94 (citing United States v. Troescher, 99 F.3d 933,
934 n.1 (9th Cir. 1996)). The Supreme Court “decline[d] to
endorse such an approach because it carries the courts beyond
the bounds of authorized judicial action and thus offends fun-
damental principles of separation of powers.” Id.; see also id.
at 95 (“Just last Term, we restated this principle in the clearest
fashion, unanimously setting aside the Ninth Circuit’s merits
decision in a case that had lost the elements of a justiciable
controversy . . . .”).
In support of its resurrection of “hypothetical jurisdiction,”
the majority points to the Supreme Court’s statement in Sino-
chem International Co. v. Malaysia International Shipping
Corp., 549 U.S. 422, 425 (2007), that “a district court has dis-
cretion to respond at once to a defendant’s forum non conve-
niens plea, and need not take up first any other threshold
objection.” See Carijano, 643 F.3d at 1227. The majority
cherry-picks this language from Sinochem’s opening para-
graph and turns a blind eye to the rest of the opinion, includ-
ing the immediately subsequent sentence. Here’s the Court’s
holding, as it appears in full:
We hold that a district court has discretion to
respond at once to a defendant’s forum non conve-
niens plea, and need not take up first any other
threshold objection. In particular, a court need not
resolve whether it has authority to adjudicate the
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cause (subject-matter jurisdiction) or personal juris-
diction 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.
Sinochem Int’l Co., 549 U.S. at 425 (emphasis added).
As we’ve previously recognized, “[i]n Sinochem, the
Supreme Court offered the lower courts a practical mecha-
nism for resolving a case that would ultimately be dismissed.”
Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582
F.3d 1083, 1088 (9th Cir. 2009) (emphasis added). The Court
left intact our “independent obligation to examine our own
and the district court’s jurisdiction.” Id. at 1087 (internal quo-
tation marks omitted). Indeed, it reaffirmed that “[w]ithout
jurisdiction the court cannot proceed at all in any cause; it
may not assume jurisdiction for the purpose of deciding the
merits of the case.” Sinochem Int’l Co., 549 U.S. at 431 (inter-
nal quotation marks omitted). Consistent with this longstand-
ing rule, the Court held that we have “leeway to choose
among threshold grounds for denying audience to a case on
the merits,” because “[d]ismissal short of reaching the merits
means that the court will not proceed at all to an adjudication
of the cause.” Id. (internal quotation marks and citations omit-
ted).
Even when dismissing a case, our leeway to choose among
threshold grounds is limited. The Court explained in Sino-
chem that, “[i]n 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.” Sinochem, 549 U.S. at 436 (internal quotation
marks omitted) (alteration in original). We may skip over
jurisdiction only “where [it] is difficult to determine, and
forum non conveniens considerations weigh heavily in favor
of dismissal . . . .” Id. (emphasis added). In other words, Sino-
chem was the exception to the rule: Because it was “a text-
6007 CARIJANO v. OCCIDENTAL PETROLEUM

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book case for immediate forum non conveniens dismissal,”
the Court found it unnecessary to decide jurisdiction. Id. at
435. Here, by contrast, the majority believes the forum non
conveniens factors weigh so heavily against dismissal that it
reverses for abuse of discretion. See Carijano, 643 F.3d at
1234. Under these circumstances, Sinochem compels us to
address jurisdiction first.
The majority also “believe[s] that it would be improper for
us to rule on the [standing] issue before any consideration by
the district court, which ‘is in the best position to resolve [it]
in the first instance.’ ” Id. at 1228 (quoting Ibrahim v. DHS,
538 F.3d 1250, 1256 n.9 (9th Cir. 2008)). But, as explained
above, “ ‘[o]n every . . . appeal, the first and fundamental
question is that of jurisdiction, first, of this court, and then of
the court from which the record comes.’ ” Steel Co., 523 U.S.
at 94 (quoting Great S. Fire Proof Hotel Co., 177 U.S. at
453). We may remand jurisdictional questions only when we
would not, by doing so, allow the case to “proceed at all in
any cause.” Id. (quoting Ex parte McCardle, 74 U.S. at 514).
In Ibrahim, on which the majority relies, we reversed the dis-
trict court’s dismissal for lack of statutory jurisdiction, then
remanded as to the unrelated jurisdictional issue of Article III
standing. Ibrahim, 538 F.3d at 1256 & n.9. We didn’t, as my
colleagues do here, assume standing for the purpose of decid-
ing a non-jurisdictional issue, thereby allowing the case to
proceed.
If the majority really wants to give the district court first
bite at the jurisdictional apple, it can simply remand for the
district court to consider that issue, without making any other
ruling in the case. By assuming jurisdiction instead, the panel
gives itself license to write a precedential opinion on a diffi-
cult forum non conveniens question, based on the hypothesis
that Amazon Watch has standing and its interests can be
weighed in the forum non analysis. Federal courts have no
authority to opine on other issues when their jurisdiction has
been seriously called into question; their obligation is to
6008 CARIJANO v. OCCIDENTAL PETROLEUM

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remain silent on those other issues until the jurisdictional
question has been put to rest. That the district court may even-
tually dismiss Amazon Watch for lack of standing will not
undo the precedent written by the panel based on its incorrect
assumption that Amazon Watch has standing.
* * *
Jurisdiction is the power to speak; in its absence, we must
remain silent. Perforce, we must first make sure we have
jurisdiction before speaking at all in any matter. The Supreme
Court has carved out a narrow exception to this rule, which
applies only as an alternative way to stop speaking. By allow-
ing the case to go forward, once our jurisdiction has been cal-
led into question, the majority puts us at odds with what is
perhaps the most fundamental principle of federal jurisdiction.
Our court commits a serious error by failing to take the case
en banc to correct the panel’s boot-strap overreach.
WARDLAW, Circuit Judge, with whom SCHROEDER and
GOULD, Circuit Judges join, concurring in denial of rehear-
ing en banc:
Whoa!!! The Chief has put the proverbial cart before the
horse. The district court did not touch upon the merits of the
claims alleged in the complaint in any manner whatsover, and
neither did our panel’s disposition. Nor did we or the district
court invoke the doctrine of “hypothetical jurisdiction” in an
effort to reach the merits, quite contrary to the dissent’s asser-
tion. Rather, based on the record before the district court, the
panel concluded only that the district court abused its discre-
tion when it dismissed this action under the forum non conve-
niens doctrine. This was, by definition, “a non-merits ground
for dismissal.” Sinochem Int’l Co. v. Malaysia Int’l Shipping
Corp., 549 U.S. 422, 432 (2007) (internal quotation marks
omitted). Occidental is free, on remand, to renew its motion
6009 CARIJANO v. OCCIDENTAL PETROLEUM

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to dismiss on the ground that Amazon Watch may not have
standing to assert its claim under California’s Unfair Compe-
tition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.,
and, should the district court dismiss Amazon Watch, Occi-
dental may once again seek to dismiss the case on forum non
conveniens grounds.
The question of standing cannot be resolved on the bare
pleadings, which is all we have before us given the procedural
posture of this appeal. And whether the district court has
jurisdiction will necessarily require some factual development
as to whether and how alleged misrepresentations and other
conduct by Occidental during its Peruvian operations harmed
and continue to harm Amazon Watch. See Ibrahim v. Dep’t
of Homeland Sec., 538 F.3d 1250, 1256 n.9 (9th Cir. 2008).
“In ruling on a challenge to subject matter jurisdiction, the
district court is ordinarily free to hear evidence regarding
jurisdiction and to rule on that issue prior to trial, resolving
factual disputes where necessary.” Augustine v. United States,
704 F.2d 1074, 1077 (9th Cir. 1983). Here, Occidental dis-
putes the existence, the cause and the redressability of the
harm alleged by Amazon Watch. Resolving these issues will
require factual development on a number of fronts. For exam-
ple, to show harm, Amazon Watch may produce evidence of
the manner in which Occidental’s conduct forced it to divert
resources from its central mission of protecting the rainforest
and advancing the rights of the indigenous people of the Ama-
zon. See Kwikset Corp. v. Superior Court, 51 Cal. 4th 310,
322-24 (2011) (requiring economic harm to prove UCL stand-
ing). To show causation, Amazon Watch may also produce
evidence linking Occidental’s alleged deceptive practices to
Amazon Watch’s diminished ability to carry out its mission.
See id. at 326 (affirming that fraud or reliance is a causal
mechanism recognized under the UCL). Further, Amazon
Watch may prove a continuing injury, which may be
redressed through, for example, injunctive relief compelling
Occidental to research and remediate environmental harms or
to conduct outreach and education about health risks with the
6010 CARIJANO v. OCCIDENTAL PETROLEUM

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indigenous people. See id. at 336-37 (standing under the UCL
is not dependent on the availability of restitution as a rem-
edy).
The district court did not address standing, and we need not
—indeed, could not—do so in the first instance here. The dis-
trict court did not do so because the Supreme Court has
explained that a “district court has discretion to respond at
once to a defendant’s forum non conveniens pleas, and need
not take up first any other threshold objection,” including
jurisdiction. Sinochem, 548 U.S. at 425. That is precisely what
happened here. The district court granted defendants’ motion
to dismiss on forum non conveniens grounds without ruling
on the merits of the concurrent motion to dismiss for lack of
standing. Applying the forum non conveniens test of Piper
Aircraft Co. v. Reyno, 454 U.S. 235 (1981), we reversed and
remanded the case to the district court to consider the issue of
standing in the first instance. Carijano v. Occidental Petro-
leum Corp., 643 F.3d 1216, 1236-37 (9th Cir. 2011).
The dissent from denial of rehearing en banc cries foul, cit-
ing the general rule that federal courts must sua sponte evalu-
ate their own jurisdiction. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83 (1998). Chief Judge Kozinski
asserts that we have “[t]oss[ed] this instruction aside” in our
forum non conveniens analysis. But it was the Supreme Court
that created this exception to our ordinary practice of address-
ing jurisdictional issues before we reach the merits of a claim,
and it did so specifically in the context of ruling on a party’s
assertion of forum non conveniens. Sinochem, 549 U.S. at
432. The reason for the exception identified in Sinochem is
clear—neither district courts nor we reach the merits of a case
when we decide issues of forum non conveniens, and thus we
need not conduct the jurisdictional analysis as a preliminary
matter.
The dissent from denial of rehearing en banc also claims
that we “cherry pick” language from Sinochem and ignore the
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Court’s explanation that: “In particular, a court need not
resolve [jurisdictional issues] if it determines that, in any
event, a foreign tribunal is plainly the more suitable arbiter of
the merits of the case.” 549 U.S. at 425. This statement in
Sinochem explains why the district court need not address
jurisdiction before it rules on a forum non conveniens motion,
but it does not address, much less dictate, how appellate
review must proceed after a district court makes this election.
See, e.g., Provincial Gov’t of Marinduque v. Placer Dome,
Inc., 582 F.3d 1083, 1087-88 (9th Cir. 2009) (noting some of
the unanswered questions about appellate review and poten-
tial remands to state court raised by Sinochem’s forum non
conveniens holding). Sinochem is silent on how an appellate
court is to proceed when a district court declines to address
jurisdictional issues, but errs in its forum non conveniens anal-
ysis.
Finally, contrary to the dissent’s assertions, the panel opin-
ion does not trap Occidental in federal court. Our opinion
does not preclude Occidental from renewing its forum non
conveniens motion should the district court rule that Amazon
Watch lacks standing to assert its claims under California’s
UCL. See, e.g., Van Schijndel v. Boeing Co., 434 F. Supp. 2d
766 (C.D. Cal. 2006). In Van Schijndel, the district court dis-
missed the case on forum non conveniens grounds. Id. at 768.
We reversed the dismissal in an unpublished disposition, and
on remand the district court again dismissed the case based on
the forum non conveniens doctrine in light of “substantially
changed circumstances.” Id. at 769 (“The Court concludes
that the Ninth Circuit held only that the Court erred in the
manner in which it conducted its analysis, but did not intend
to preclude the Court from further consideration of the issue
in light of its ruling.”). We affirmed the second dismissal.
The panel opinion faithfully applies the Supreme Court’s
Sinochem opinion to reverse the district court’s forum non
conveniens decision based on the record before that court.
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There was no “boot-strap” or “overreach” here, and our court
properly decided not to rehear this appeal en banc.
6013 CARIJANO v. OCCIDENTAL PETROLEUM

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