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
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. 

MARINDUQUE v. PLACER DOME, INC. 14019
OPINION

McKEOWN, Circuit Judge:

Under the act of state doctrine, “the acts of foreign sovereigns 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 Province”) 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 Philippines.1

 According to the complaint, Placer Dome severely polluted the lands and waters of Marinduque for some thirty

1For 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 background 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. 

14020 MARINDUQUE v. PLACER DOME, INC.
years, caused two cataclysmic environmental disasters, poisoned 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 Philippine 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. Specifically, Placer Dome contended that the case “tender[ed] questions 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 jurisdiction existed under the act of state doctrine of the federal common 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 district courts have latitude to rule on the threshold issue of

forum non conveniens before definitively ascertaining subjectmatter 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 rul2Around 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.” 

MARINDUQUE v. PLACER DOME, INC. 14021
ing on the Province’s motion for reconsideration, the district

court affirmed its earlier conclusion that “subject matter jurisdiction 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 foreign 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 federal question must “be disclosed upon the face of the complaint, unaided by the answer.” Phillips Petroleum Co. v.

Texaco, Inc., 415 U.S. 125, 127-28 (1974) (per curiam). Second, a federal court may have such jurisdiction if a state-law

3The removal statute provides that “any civil action brought in a State

court of which the district courts of the United States have original jurisdiction, 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). 

14022 MARINDUQUE v. PLACER DOME, INC.
claim “necessarily raise[s] a stated federal issue, actually disputed 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, indicating 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 subjectmatter 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 suitable 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 further argues that, even if the district court concluded that

MARINDUQUE v. PLACER DOME, INC. 14023
subject-matter jurisdiction existed, that holding was alternative to the forum non conveniens determination.

We question whether Sinochem restricts our ability to

address an issue of subject-matter jurisdiction, even if characterized as an alternative holding. “[W]e have an independent

obligation to examine our own and the district court’s jurisdiction.” 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, regardless 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 challenged the court’s subject-matter jurisdiction. The district

court agreed with Placer Dome that removal was proper, holding 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 inadvertently 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 abundantly clear that the district court concluded it had subjectmatter jurisdiction over this suit.4

[1] In Sinochem, the Supreme Court considered whether a

district court must first conclusively establish its own jurisdic4Having 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. 

14024 MARINDUQUE v. PLACER DOME, INC.
tion before dismissing a suit on the basis of forum non conveniens. 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 audience to a case on the merits.’ ” 549 U.S. at 431 (quoting Ruhrgas 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 jurisdiction, when considerations of convenience, fairness, and judicial 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 burdensome 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

MARINDUQUE v. PLACER DOME, INC. 14025
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 determination 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 complaint is lengthy, we should not duck the jurisdictional analysis simply because we need to read and benchmark the

allegations and claims against the act of state doctrine, a principle 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; Sabbatino, 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 questioning 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. 

6The Supreme Court in W.S. Kirkpatrick recognized that “the jurisprudential foundation for the act of state doctrine has undergone some evolu14026 MARINDUQUE v. PLACER DOME, INC.
doctrine requires that the “official act of a foreign sovereign

performed within its own territory” becomes “ ‘a rule of decision 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 sovereign within its own territory is called into question, the policies 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 Sabbatino:

[1][T]he greater the degree of codification or consensus 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 foreign relations, the weaker the justification for exclusivity 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). 

MARINDUQUE v. PLACER DOME, INC. 14027
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 workers’ complaint, “the case concerns a vital sector of the economies 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 allegations in a chronicle of skullduggery, toxic dumping, a collapsed dam that polluted the surrounding areas, a river

flooded with poisonous mine tailings, and a corrupt government that facilitated this conduct. In sum, the Province alleges

that Placer significantly harmed Marinduque and its people,

14028 MARINDUQUE v. PLACER DOME, INC.
including through the contamination and degradation of the

environment, which in turn caused blood diseases, skin disorders, 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 created, 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 Philippine mining law; (9) quasi-delict (negligence); (10) quasidelict (public and/or private nuisance); (11) and (12) breaches

of contract; and (13) promissory estoppel. The Province

claimed environmental, economic, and human health damages; 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 federalquestion jurisdiction. The district court agreed, concluding

that “Plaintiff’s Complaint is replete with allegations regarding the Philippine Government’s activities, which contributed

to the environmental harm that Plaintiff has suffered.” In particular, 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 Marcopper to dump toxic tailings into Calancan Bay; (4) Marcos

ordered the same pollution commission to remove restraints

MARINDUQUE v. PLACER DOME, INC. 14029
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 premised upon conduct that occurred pursuant to governmental

permits and other acts or omissions by the Philippine government.

[6] Fatal to the district court’s removal jurisdiction, however, 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 plaintiff’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

7Therefore, “[a]lthough the act of state doctrine generally serves as a

defense, it can also be used affirmatively as the basis of a claim.” Patrickson, 251 F.3d at 800 n.2; see also Restatement (Third) of Foreign Relations 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 jurisdiction is present in any event because the claim raises, as a necessary element, 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.”). 

14030 MARINDUQUE v. PLACER DOME, INC.
a claim is precluded by a prior federal judgment). Alternatively, 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 federal 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 federal judicial responsibilities. Just as raising the specter of

political issues cannot sustain dismissal under the political

question doctrine, neither does a general invocation of international 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 obligation to exercise their jurisdiction and “[t]he act of state doctrine 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 relations 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 various provisions of Philippine law that the Province sued

under, such as reckless and simple imprudence, the Province

MARINDUQUE v. PLACER DOME, INC. 14031
need not prove the validity or invalidity of an act of state. For

example, proving that Placer Dome was reckless when it hastily 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 jurisdiction. 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 jurisdiction nicely illustrates the difference between alleging that

governmental action led to the defendant’s challenged conduct 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 President Marcos opened a forest reserve to mining or owned a

high percentage of stock in the mining company or eased pollution restrictions are not elements of the Province’s claim

that pollution and dumping occurred, that Placer Dome violated Philippine mining, fishing, water and pollution law, or

that it breached a contract with the Province. At best, the allegations 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 complaint 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 question 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 preemption is ordinarily a defense, once an area of state law has been

completely pre-empted, any claim purportedly based on that preempted 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). 

14032 MARINDUQUE v. PLACER DOME, INC.
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 branches.” 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 government which perpetrated the challenged act of state is no longer 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 former 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 complaint does not require us to pass on the validity of the Philippines’ 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. Kirkpatrick, 493 U.S. at 405.

MARINDUQUE v. PLACER DOME, INC. 14033
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. 

14034 MARINDUQUE v. PLACER DOME, INC.