671 F.3d 736 (9th Cir. 2011), 02-56256, Sarei v. Rio Tinto, PLC

Docket Nº02-56256, 02-56390, 09-56381.
Citation671 F.3d 736
Opinion JudgeSCHROEDER, Judge.
Party NameAlexis Holyweek SAREI; Paul E. Nerau; Thomas Tamausi; Phillip Miriori; Gregory Kopa; Methodius Nesiko; Aloysius Moses; Rapheal Niniku; Gabriel Tareasi; Linus Takinu, Leo Wuis; Michael Akope; Benedict Pisi; Thomas Kobuko; John Tamausi; Norman Mouvo; John Osani; Ben Korus; Namira Kawona; Joanne Bosco; John Pigolo; Magdalene Pigolo, individually and o
AttorneySteve W. Berman, Seattle, WA, for plaintiffs-appellants-appellees Alexis Holyweek Sarei, et al. Sri Srinivasan, Washington, DC, for defendants-appellees-appellants Rio Tinto, PLC, et al.
Judge PanelBefore: MARY M. SCHROEDER, HARRY PREGERSON, STEPHEN REINHARDT, ANDREW J. KLEINFELD, BARRY G. SILVERMAN, M. MARGARET McKEOWN, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN, CARLOS T. BEA, and SANDRA S. IKUTA, Circuit Judges. Opinion by Judge SCHROEDER; Concurrence by Judge REINHARDT...
Case DateOctober 25, 2011
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 736

671 F.3d 736 (9th Cir. 2011)

Alexis Holyweek SAREI; Paul E. Nerau; Thomas Tamausi; Phillip Miriori; Gregory Kopa; Methodius Nesiko; Aloysius Moses; Rapheal Niniku; Gabriel Tareasi; Linus Takinu, Leo Wuis; Michael Akope; Benedict Pisi; Thomas Kobuko; John Tamausi; Norman Mouvo; John Osani; Ben Korus; Namira Kawona; Joanne Bosco; John Pigolo; Magdalene Pigolo, individually and on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,

v.

RIO TINTO, PLC and Rio Tinto Limited, Defendants-Appellees.

Alexis Holyweek Sarei; Paul E. Nerau; Thomas Tamausi; Phillip Miriori; Gregory Kopa; Methodius Nesiko; Aloysius Moses; Rapheal Niniku; Gabriel Tareasi; Linus Takinu, Leo Wuis; Michael Akope; Benedict Pisi; Thomas Kobuko; John Tamausi; Norman Mouvo; John Osani; Ben Korus; Namira Kawona; Joanne Bosco; John Pigolo; Magdalene Pigolo, individually and on behalf of themselves and all others similarly situated, Plaintiffs-Appellees,

v.

Rio Tinto, PLC and Rio Tinto Limited, Defendants-Appellants.

Alexis Holyweek Sarei; Paul E. Nerau; Thomas Tamausi; Phillip Miriori; Gregory Kopa; Methodius Nesiko; Aloysius Moses; Rapheal Niniku; Gabriel Tareasi; Linus Takinu; Leo Wuis; Michael Akope; Benedict Pisi; Thomas Kobuko; John Tamausi; Norman Mouvo; John Osani; Ben Korus; Namira Kawona; Joanne Bosco; John Pigolo; Magdalene Pigolo, individually and on behalf Central of themselves & all others similarly situated, Plaintiffs-Appellees,

v.

Rio Tinto, PLC; Rio Tinto Limited, Defendants-Appellants,

and

United States of America, Movant.

Nos. 02-56256, 02-56390, 09-56381.

United States Court of Appeals, Ninth Circuit.

October 25, 2011

Argued and Submitted Sept. 21, 2010.

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Steve W. Berman, Seattle, WA, for plaintiffs-appellants-appellees Alexis Holyweek Sarei, et al.

Sri Srinivasan, Washington, DC, for defendants-appellees-appellants Rio Tinto, PLC, et al.

Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding. D.C. Nos. 2:00-cv-11695-MMM-MAN, CV-00-11695-MMM.

Before: MARY M. SCHROEDER, HARRY PREGERSON, STEPHEN REINHARDT, ANDREW J. KLEINFELD, BARRY G. SILVERMAN, M. MARGARET McKEOWN, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN, CARLOS T. BEA, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge SCHROEDER; Concurrence by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge PREGERSON; Partial Concurrence and Partial Dissent by Judge McKEOWN; Partial Concurrence and Partial Dissent by Judge BEA; Dissent by Judge KLEINFELD; Dissent by Judge IKUTA.

Opinion by Judge SCHROEDER, Circuit Judge, with whom SILVERMAN and BERZON, Circuit Judges, join. PREGERSON and RAWLINSON, Circuit Judges, join as to all but Parts IV(C) and (D) and partially join Part IV(B)(3). REINHARDT, Circuit Judge, joins as to all but Part II(C) and Part IV(B)(3), as to which he concurs in the result. McKEOWN, Circuit Judge, joins as to all but Part IV(A)(3) and Part IV(B)(4):

OPINION

SCHROEDER, Judge.

I. INTRODUCTION

This is an Alien Tort Statute (ATS) case arising out of the operations of Rio Tinto mining group (Rio Tinto) on the island of Bougainville in Papua New Guinea (PNG) and the uprising against Rio Tinto in the late 1980's that resulted in the use of military force and many deaths. The Plaintiffs are current or former residents of the island of Bougainville. The ATS provides that " district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation

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of the law of nations or a treaty of the United States." 28 U.S.C. § 1350.

This is the second time this case has been before this en banc court. See Sarei v. Rio Tinto PLC (Rio Tinto III), 550 F.3d 822, 825-26 (9th Cir.2008). The facts are laid out comprehensively in the original district court opinion. See Sarei v. Rio Tinto PLC (Rio Tinto I), 221 F.Supp.2d 1116, 1121-27 (C.D.Cal.2002). The original three-judge panel majority and dissenting opinions were divided on the issue of exhaustion of local remedies. Sarei v. Rio Tinto PLC (Rio Tinto II), 487 F.3d 1193 (9th Cir.2007). As a result, our first en banc decision focused on that issue. Rio Tinto III, 550 F.3d 822. A majority of this en banc court took the view that exhaustion must be considered, with the narrower, and therefore controlling, plurality opinion by Judge McKeown stating that only prudential exhaustion principles apply. Id. at 832 n. 10.

On remand, the district court held that it would be inappropriate to impose a prudential exhaustion requirement on Plaintiffs' claims for crimes against humanity, war crimes, and racial discrimination. Sarei v. Rio Tinto plc (Rio Tinto IV), 650 F.Supp.2d 1004, 1032 (C.D.Cal.2009). It held the remaining claims required exhaustion. The court, therefore, gave Plaintiffs the choice either to withdraw or to submit the following claims to the traditional two-step exhaustion analysis: violation of the rights to health, life, and security of the person; cruel, inhuman, and degrading treatment; international environmental violations; and a consistent pattern of gross human rights violations. Id.

Plaintiffs opted to withdraw those claims, reserving the right to file an amended complaint if the matter is remanded. Id. n. 71. Thus, the only claims before this court on appeal are Plaintiffs' claims for genocide, crimes against humanity, war crimes, and racial discrimination.

The ATS, as Judge Friendly explained more than three decades ago in IIT v. Vencap, Ltd. , " is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, § 9, 1 Stat. 73, 77 (1789), no one seems to know whence it came." 519 F.2d 1001, 1015 (2d Cir.1975). This case has been a perplexing one for the judges of this circuit because of the new legal uncertainties in the application of the ATS that flowed in the wake of the Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004).

In Sosa, the Supreme Court held that the ATS is a jurisdictional grant for a limited category of claims for violation of internationally accepted norms. 542 U.S. at 729, 124 S.Ct. 2739. The statute was " enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations ... based on the present-day law of nations ... rest[ing] on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized [violation of safe conducts, infringement of the rights of ambassadors, and piracy]." Id. at 724-25, 124 S.Ct. 2739.

Internationally accepted norms must be " specific, universal, and obligatory." Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (citing with approval In re Estate of Ferdinand Marcos, Human Rights Litig. (Marcos II), 25 F.3d 1467, 1475 (9th Cir.1994)). Thus, in discussing the definite nature of an international norm that gives rise to a cause of action in an ATS suit against a private actor, the Supreme Court also noted that " a related consideration is whether international law extends the scope of liability for a violation of a given norm to the

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perpetrator being sued, if the defendant is a private actor such as a corporation or individual." Id. at 732 n. 20, 124 S.Ct. 2739.

With regard to the specific claims before us, we conclude that only Plaintiffs' claims of genocide and war crimes fall within the limited federal jurisdiction created by the Act, and that the crimes against humanity arising from a blockade and the racial discrimination claims do not. Under international law, there is a distinction between genocide and crimes against humanity. We discuss this distinction in Section IV of this opinion when we deal with the specific claims. Before discussing each claim, however, we must deal with and reject the more sweeping legal principles that Rio Tinto and our dissenting colleagues argue require dismissal of the entire action. Those include the contentions that we lack jurisdiction under the ATS because all of these claims arise extraterritorially, are claims against corporations, or constitute claims of aiding and abetting liability outside the scope of international law. We also address Judge Ikuta's dissenting contention, not raised by any party, that the Act gives federal courts no authority to hear cases between aliens because cases under the ATS are diversity cases that do not " arise under" the laws of the United States. We then reach Rio Tinto's alternative contentions that the claims in this suit are nonjusticiable on the grounds that they require prudential exhaustion, constitute political questions, are barred by principles of international comity, or invalidate acts of state.

Although the torts alleged all occurred outside of the United States, Rio Tinto has substantial operations in this country. According to the complaint, Rio Tinto operates in 40 different countries and, as of December 31, 1999, had consolidated operating assets of nearly $13 billion— 47% of which are located in North America. Personal jurisdiction is not disputed.

II. JURISDICTIONAL ISSUES

A. Extraterritoriality

Extraterritoriality is generally a question of statutory interpretation going to the merits of a case. Morrison v. Nat'l Australia Bank Ltd., --- U.S. ----, 130 S.Ct. 2869, 2877, 177 L.Ed.2d 535 (2010). Because the Supreme Court in Sosa established that the ATS is a jurisdictional statute, 542 U.S. at 712, 124 S.Ct. 2739, however, and because Rio Tinto argues that we lack jurisdiction to apply the Act extraterritorially, we consider...

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71 practice notes
  • 17 F.Supp.3d 334 (S.D.N.Y. 2014), 10 Civ. 2940, Sikhs for Justice Inc. v. Indian Nat'l Cong. Party
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • April 25, 2014
    ...that corporations can be found liable under Page 342 the ATS. See id. at 11 n.32 (citing Flomo, 643 F.3d at 1021; Sarei v. Rio Tinto, PLC, 671 F.3d 736, 764-65 (9th Cir. 2011) (en banc), vacated on other grounds, 133 S.Ct. 1995, 185 L.Ed.2d 863 (2013); Exxon, 654 F.3d at 57; Romero v. Drumm......
  • Corruption, corporations, and the new human right.
    • United States
    • Washington University Law Review Vol. 91 Nbr. 6, September - September 2014
    • September 1, 2014
    ...Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012); Habyarimana v. Kagame, 696 F.3d 1029 (10th Cir. 2012). (239.) See Sarei v. Rio Tinto, 671 F.3d 736 (9th Cir. 2011). (240.) See Velez v. Sanchez, 693 F.3d 308 (2d Cir. 2012). (241.) See Doe v. Exxon Mobil Coip., 654 F.3d 11 (D.C. Cir. 2011). ......
  • How concerned should we be? The conundrum of Kiobel's touch and concern test and corporate liability under the Alien Tort Statute.
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    • Suffolk University Law Review Vol. 49 Nbr. 4, September - September 2016
    • September 22, 2016
    ...against a British corporation for crimes against humanity; all alleged crimes occurred in Papua New Guinea. See Sami v. Rio Tinto, PLC, 671 F.3d 736, 818 (9th Cir. 2011), vacated, 133 S. Ct. 1995 (2013), remanded to 722 F.3d 1109 (2013) (dismissing claims under ATS for lack of jurisdiction)......
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    • Georgetown Journal of International Law Vol. 43 Nbr. 4, June 2012
    • June 22, 2012
    ...obligatory."). (44.) Id. at 731. (45.) Palmer, supra note 32, at 277. (46.) Sosa, 542 U.S. at 734. (47.) See Sarei v. Rio Tinto, PLC, 671 F.3d 736, 764 (9th Cir. 2011) (en banc) [hereinafter Sarei II] ("By ratifying the Geneva Conventions, Congress has adopted a precise, universal......
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39 cases
  • 17 F.Supp.3d 334 (S.D.N.Y. 2014), 10 Civ. 2940, Sikhs for Justice Inc. v. Indian Nat'l Cong. Party
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • April 25, 2014
    ...that corporations can be found liable under Page 342 the ATS. See id. at 11 n.32 (citing Flomo, 643 F.3d at 1021; Sarei v. Rio Tinto, PLC, 671 F.3d 736, 764-65 (9th Cir. 2011) (en banc), vacated on other grounds, 133 S.Ct. 1995, 185 L.Ed.2d 863 (2013); Exxon, 654 F.3d at 57; Romero v. Drumm......
  • In re Extradition of Basic, 072712 KYEDC, 5:11-MJ-5002-REW
    • United States
    • Federal Cases United States District Courts 6th Circuit United States District Court of Eastern District of Kentucky
    • July 27, 2012
    ...Conventions represents a universal, international consensus with respect to what constitute war crimes."); Sarei v. Rio Tinto, PLC, 671 F.3d 736, 764 (9th Cir. 2011) (noting that Geneva Conventions "generally reflect customary international law" (citation and internal quotati......
  • Bixby v. KBR, Inc., 083112 ORDC, 3:09-CV-632-PK
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Court (Oregon)
    • August 31, 2012
    ...limited contexts where such contradiction would seriously interfere with important governmental interests." Sarei v. Rio Tinto, PLC, 671 F.3d 736, 756 (9th Cir. 2011), quoting Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995). In light of this gloss on the test, it is clear that a fin......
  • 860 F.Supp.2d 1079 (C.D.Cal. 2012), CV 11-04846 SJO (MRWx), Valentini v. Shinseki
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. Central District of California
    • March 16, 2012
    ...origin." Illinois v. City of Milwaukee, 406 U.S. 91, 100, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972); see also Sarei v. Rio Tinto, PLC, 671 F.3d 736, 750-51 (9th Cir.2011). The Government, however, argues that there is no federal common law of charitable trusts, and Plaintiffs simply invoke ......
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6 firm's commentaries
26 books & journal articles
  • Corruption, corporations, and the new human right.
    • United States
    • Washington University Law Review Vol. 91 Nbr. 6, September - September 2014
    • September 1, 2014
    ...Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012); Habyarimana v. Kagame, 696 F.3d 1029 (10th Cir. 2012). (239.) See Sarei v. Rio Tinto, 671 F.3d 736 (9th Cir. 2011). (240.) See Velez v. Sanchez, 693 F.3d 308 (2d Cir. 2012). (241.) See Doe v. Exxon Mobil Coip., 654 F.3d 11 (D.C. Cir. 2011). ......
  • How concerned should we be? The conundrum of Kiobel's touch and concern test and corporate liability under the Alien Tort Statute.
    • United States
    • Suffolk University Law Review Vol. 49 Nbr. 4, September - September 2016
    • September 22, 2016
    ...against a British corporation for crimes against humanity; all alleged crimes occurred in Papua New Guinea. See Sami v. Rio Tinto, PLC, 671 F.3d 736, 818 (9th Cir. 2011), vacated, 133 S. Ct. 1995 (2013), remanded to 722 F.3d 1109 (2013) (dismissing claims under ATS for lack of jurisdiction)......
  • Accepting Sosa's invitation: did Congress expand the subject matter jurisdiction of the Alien Tort Statute in the Military Commissions Act?
    • United States
    • Georgetown Journal of International Law Vol. 43 Nbr. 4, June 2012
    • June 22, 2012
    ...obligatory."). (44.) Id. at 731. (45.) Palmer, supra note 32, at 277. (46.) Sosa, 542 U.S. at 734. (47.) See Sarei v. Rio Tinto, PLC, 671 F.3d 736, 764 (9th Cir. 2011) (en banc) [hereinafter Sarei II] ("By ratifying the Geneva Conventions, Congress has adopted a precise, universal......
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    • Notre Dame Law Review Vol. 89 Nbr. 4, March - March 2014
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    ...S. Dodge, Corporate Liability Under Customary International Law, 43 Geo. I. Int'l L. 1045 (2012). (33) See Sarei v. Rio Tinto, PLC, 671 F.3d 736, 747-48 (9th Cir. 2011) (en banc) (dictum), vacated on other grounds, 133 S. Ct. 1995 (2013) (mem.); Flomo v. Firestone Natural Rubber Co., 643 F.......
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