Central District of California, Los Angeles D.C. Nos. 2:00-cv-11695- MMM-MAN, CV-00-11695-MMM & 2:00-cv-11695-MMM-MAN
The opinion of the court was delivered by: Kleinfeld, Circuit Judge
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.
Order; Dissent by Judge Kleinfeld; Statement by Judge Reinhardt; Dissent by Judge Callahan
This case is referred to Judge Edward Leavy to explore the possibility of mediation. Judge Leavy is requested to report to the en banc court within twenty-eight (28) days as to whether mediation should proceed or whether this case should be returned to the en banc court.
I respectfully dissent. We ought not to refer this case for mediation, for two reasons. First, we plainly lack jurisdiction. Second, referral for mediation would be imprudent even if we did have jurisdiction.
This is a class action. The plaintiffs are aliens, the defendants are aliens, and the events occurred abroad. The lawsuit arises out of events on the island of Bougainville in Papua New Guinea. The defendants are arms of Rio Tinto, a British-Australian corporation with headquarters in London and Melbourne, which has mined copper in the village of Panguna in Bougainville since 1972. The complaint alleges that Rio Tinto egregiously damaged the Bougainville environment and otherwise wronged the indigenous local people, sparking a civil war. According to the complaint, the Papua New Guinea government blockaded the island, causing thousands of deaths, and the violent civil war killed thousands more. The war ended in 1999. Rio Tinto allegedly participated with the Papua New Guinea government in war crimes. We are told that New Zealand mediated a peace agreement, under which Bougainville now enjoys some form of autonomy from the Papua New Guinea government as the "Autonomous Region of Bougainville." Bougainville is in the Pacific Ocean near (as distances in the Pacific go) Australia and New Zealand.
The named class plaintiffs include Alexis Sarei, a California resident alien when the complaint was filed (he is now back in Bougainville as a member of its parliament) who alleges that he and a number of other Bougainville residents were victimized by Rio Tinto and the government both by violence and threats of violence, and by pollution from Rio Tinto's mine in Bougainville. The plaintiffs seek class certification for a "War Crimes Class" and an "Environmental Right to Life Class," to include more than 10,000 people who suffered from the civil war, the blockade, and the Panguna mine's environmental harms. They demand compensatory damages, punitive damages, and disgorgement of Rio Tinto's profits for the class.
We have not yet decided whether we have jurisdiction over this dispute. I very much doubt that we do. I suspect that we lack jurisdiction both because the case involves a political question and because we lack subject matter jurisdiction on account of extraterritoriality. This case is entirely extraterritorial. The claims are by Papua New Guineans against a British-Australian company for wrongs committed in Papua New Guinea. Although Rio Tinto has operations in many countries, including the United States, and Sarei lived in the United States as a resident alien when the complaint was filed, nothing done by Americans or in America, is at issue.
The Supreme Court recently reaffirmed in strong and plain language the rule against implied extraterritorial jurisdiction. "When a statute gives no clear indication of an extraterritorial application, it has none."*fn1 That case, like this one, involved extraterritorial conduct by and to persons who were not Americans. If anything, jurisdiction was not so plainly absent in that case as this one, since the theory was fraud on the market indirectly affecting Americans.*fn2 I suspect as well that this case is inextricably entwined with foreign policy determinations that are a political question.
The statute at issue here is the Alien Tort Statute, promulgated in 1789.*fn3 It provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."*fn4 The statute does not say one way or the other whether the tort has to have been committed in America or by Americans. Since the statute "gives no clear indication of an extraterritorial application, it has none."*fn5 There are statutes that do apply extraterritorially, such as the Torture Victim Protection Act and the Extraterritorial Torture Statute, but they say so, and the Alien Tort Statute does not.*fn6
For reasons that escape me, some seem to infer from the Alien Tort Statute's reference to "the law of nations" that it does not matter where the violation of the law of nations occurred.*fn7 Perhaps the implicit assumption is that no one in the United States would violate the law of nations. That, of course, would be nonsense. As the Supreme Court noted in Sosa v. Alvarez-Machain, the "law of nations" meant the common law that had developed around such international mercantile matters as bills of exchange, and "violation[s] of safe conducts, infringement of the rights of ambassadors, and piracy."*fn8 Until the Alien Tort Statute was promulgated, we suffered from an incapacity to deal with such matters as the Marbois Incident, where a "French adventurer" assaulted the Secretary of the French Legion in Philadelphia, and a "New York City constable produced a reprise of the Marbois affair," leading to a Dutch diplomatic protest.*fn9
It is risible to think that the first Congress wrote the Alien Tort Statute intending to enable federal courts to adjudicate claims of war crimes committed abroad. Were it otherwise, a French aristocrat who had escaped the guillotine and fled to Philadelphia could have sued French defendants in our newly organized federal courts, perhaps even Robespierre himself, and obtained an injunction commanding the bloody French revolutionaries to stop immediately. Perhaps we should have mediated the French Revolution, or issued a preliminary injunction to maintain the status quo while we decided whether we had jurisdiction? This silly hypothetical would be analogous to our ...