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Appeal Nos. 02-56256, 02-56390 & 09-56381
UNITED STATES COURT OF APPEALS
FOR THE
NINTH CIRCUIT
ALEXIS HOLYWEEK SAREI, ET AL.,
Plaintiffs - Appellants/Cross-Appellees,
v.
RIO TINTO plc and RIO TINTO LIMITED,
Defendants - Appellees/Cross-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA—WESTERN DIVISION
CASE NO. 00-CV-11695-MMM-MAN (HON. MARGARET M. MORROW)
DEFENDANTS-APPELLEES/CROSS-APPELLANTS’ SUPPLEMENTAL
BRIEF IN RESPONSE TO THIS COURT’S APRIL 24, 2013 ORDER
MATTHEW J. KLINE
O’MELVENY & MYERS LLP
1999 Avenue of the Stars
Los Angeles, Cal. 90067
(310) 246-6700
JONATHAN D. HACKER
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5300
ANTON METLITSKY
O’MELVENY & MYERS LLP
7 Times Square
New York, New York 10036
(212) 326-2000
Attorneys for Defendants-Appellees Rio Tinto plc and Rio Tinto Limited
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TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................... 1
BACKGROUND ........................................................................................... 2
ARGUMENT................................................................................................. 4
A.
Kiobel Mandates Dismissal Of Plaintiffs’ ATS Claims ........... 4
B.
This Court Should Affirm The District Court’s Dismissal
Of The Complaint With Prejudice ............................................ 7
CONCLUSION.............................................................................................. 9
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TABLE OF AUTHORITIES
Page(s)
CASES
Hodgson v. Bowerbank,
9 U.S. (5 Cranch) 303 (1809) ...............................................................................9
Kiobel v. Royal Dutch Petroleum Co.,
132 S. Ct. 472 (2011)............................................................................................3
Kiobel v. Royal Dutch Petroleum Co.,
132 S. Ct. 1738 (2012)..........................................................................................3
Kiobel v. Royal Dutch Petroleum Co.,
133 S. Ct. 1659 (2013).................................................................................passim
Morrison v. Nat’l Austl. Bank Ltd.,
130 S. Ct. 2869 (2010)..........................................................................................4
Mossman v. Higginson,
4 U.S. (4 Dall.) 12 (1800).....................................................................................9
Rick-Mik Enters., Inc. v. Equilon Enters. LLC,
532 F.3d 963 (9th Cir. 2008) ................................................................................8
Rio Tinto PLC v. Sarei,
__ S. Ct. __, 2013 WL 1704704 (Apr. 24, 2013).................................................3
Saadeh v. Farouki,
107 F.3d 52 (D.C. Cir. 1997)................................................................................9
Sarei v. Rio Tinto PLC,
221 F. Supp. 2d 1116 (C.D. Cal. 2002)................................................................7
Sarei v. Rio Tinto, PLC,
671 F.3d 736 (9th Cir. 2011) ............................................................................2, 8
CONSTITUTION AND STATUTES
U.S. Const. art III, § 2, cl. 1.......................................................................................9
28 U.S.C. § 1350........................................................................................................1
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TABLE OF AUTHORITIES
(continued)
Page(s)
OTHER AUTHORITIES
Rowan Callick, Battle Intensifies Over Bougainville Copper, The
Australian, July 16, 2011......................................................................................6
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INTRODUCTION
The Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum
Co., 133 S. Ct. 1659 (2013), requires dismissal of this action, which cannot
be distinguished in any material way from the action unanimously rejected
in Kiobel.
The Kiobel plaintiffs brought suit against foreign corporations under
the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, alleging that they were
liable for aiding and abetting the Nigerian government’s violations of
international human rights norms in Nigeria. The Supreme Court held that
the suit could not go forward because it sought “relief for violations of the
law of nations occurring outside the United States,” and because “all the
relevant conduct took place outside the United States.” Kiobel, 133 S. Ct. at
1669. While the Court was divided in its reasoning, both the five-Justice
majority opinion (id.) and the four-Justice concurring opinion (id. at 1677-78
(Breyer, J., concurring in the judgment)) agreed that claims under the ATS
cannot be asserted against a foreign corporation for assisting a foreign
government in committing human rights violations on its own soil.
The complaint in this case is materially identical to the complaint in
Kiobel. As in Kiobel, plaintiffs have sued foreign corporations—Rio Tinto
plc (incorporated in the United Kingdom), and Rio Tinto Limited
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(incorporated in Australia)—for allegedly assisting a foreign government’s
commission of human rights violations in its own territory. As in Kiobel,
the challenged conduct occurred entirely outside the United States—the
alleged human rights violations occurred in Papua New Guinea, and there is
no allegation of any conduct at all within United States territory. Because
plaintiffs here, just like the plaintiffs in Kiobel, “seek[] relief for violations
of the law of nations occurring outside the United States,” Kiobel, 133 S. Ct.
at 1669, their complaint, just like the complaint in Kiobel, must be
dismissed.
BACKGROUND
Plaintiffs’ complaint seeks to hold Rio Tinto plc and Rio Tinto
Limited (collectively, “Rio Tinto”), which are incorporated in the United
Kingdom and Australia, respectively, liable under the ATS for allegedly
assisting the Papua New Guinea government in committing human rights
violations on its own soil during its civil war. Rio Tinto argued as one basis
for dismissal of the complaint that the ATS does not apply extraterritorially,
particularly when no nexus to the United States is alleged in the complaint.
In its most recent opinion in this case, a divided en banc panel of this
Court held that the ATS permits claims challenging the alleged conduct of a
foreign corporation that occurs wholly outside U.S. territory. See Sarei v.
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Rio Tinto, PLC, 671 F.3d 736, 744-47 (9th Cir. 2011). This Court
subsequently stayed its mandate pending the Supreme Court’s resolution of
Rio Tinto’s petition for certiorari.
Several days before the Court’s en banc opinion was issued, the
Supreme Court granted certiorari in Kiobel on the question whether the ATS
supports corporate liability. See 132 S. Ct. 472 (2011). Rio Tinto
subsequently filed a petition for certiorari presenting that issue and several
others, including the question whether the ATS applies to conduct that
occurred within the territory of a foreign sovereign. After oral argument in
Kiobel, the Court called for supplemental briefing and argument on the
principal question presented in Rio Tinto’s petition: “Whether and under
what circumstances the [ATS] allows courts to recognize a cause of action
for violations of the law of nations occurring within the territory of a
sovereign other than the United States.” Kiobel v. Royal Dutch Petroleum
Co., 132 S. Ct. 1738 (2012).
On April 17, 2013, the Supreme Court issued its opinion in Kiobel,
unanimously affirming the dismissal of the complaint on extraterritoriality
grounds. The Court subsequently granted Rio Tinto’s petition for certiorari
in this case, vacated this Court’s prior judgment, and remanded the case to
this Court “for further consideration in light of Kiobel.” Rio Tinto PLC v.
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Sarei, __ S. Ct. __, 2013 WL 1704704 (Apr. 24, 2013). On April 24, 2013,
this Court directed the parties to submit supplemental briefs addressing “the
effect of the Supreme Court’s recent decision in [Kiobel] on this appeal.”
ARGUMENT
Kiobel compels dismissal of plaintiffs’ ATS claims. And because
only ATS claims remain in the operative complaint, the district court’s
dismissal of the complaint with prejudice should be affirmed.
A.
Kiobel Mandates Dismissal Of Plaintiffs’ ATS Claims
1. Kiobel involved an ATS claim against a foreign corporation that
had allegedly assisted a foreign government in committing human rights
violations abroad. 133 S. Ct. at 1662. The complaint was properly
dismissed, the Court held, because claims under the ATS cannot “seek[]
relief for violations of the law of nations occurring outside the United
States.” Id. at 1669; see id. at 1666 (ATS claims cannot target “conduct
occurring in the territory of another sovereign”).
The Court’s analysis relied on the “presumption that United States law
governs domestically but does not rule the world.” Id. at 1664 (quotation
omitted); see Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2878
(2010). That “presumption against extraterritoriality,” the Court concluded,
“applies to claims under the ATS,” and “nothing in the statute rebuts that
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presumption.” 133 S. Ct. at 1669. Just the opposite: the concerns
underlying the presumption against extraterritoriality are “magnified in the
context of the ATS.” Id. at 1664 (emphasis added). Whereas the
presumption against extraterritoriality “serves to protect against unintended
clashes between our laws and those of other nations which could result in
international discord,” id. (quotation omitted), ATS claims arising from
“conduct within the territory of a foreign sovereign” have generated
“diplomatic strife,” id. at 1669—a concern the Court repeatedly emphasized,
see id. at 1664, 1665, 1667.
The Court thus concluded that the ATS does not permit claims
“seeking relief for violations of the law of nations occurring outside the
United States.” Id. That rule, in turn, required dismissal of the Kiobel
complaint, because “all the relevant conduct took place outside the United
States.” Id.
The Court’s judgment affirming the dismissal on extraterritoriality
grounds was unanimous. Justice Breyer’s four-Justice concurrence urged a
different approach to extraterritoriality, see id. at 1671, but his approach
likewise required dismissal of the Kiobel claims, because the “defendants are
two foreign corporations,” the “plaintiffs are not United States nationals but
nationals of other nations,” the “conduct at issue took place abroad,” and
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“the plaintiffs allege, not that the defendants directly engaged in acts of
torture, genocide, or the equivalent, but that they helped others (who are not
American nationals) to do so.” Id. at 1677-78.
2. This case is indistinguishable from Kiobel. As in Kiobel,
plaintiffs’ complaint has no connection whatsoever to the United States. As
in Kiobel, the complaint names only foreign corporations as defendants. As
in Kiobel, these foreign corporations are alleged to have assisted the
commission of human rights violations entirely within the territory of a
foreign sovereign (Papua New Guinea). As in Kiobel, there is no allegation
of any conduct within the United States at all—instead “all the relevant
conduct took place outside the United States.” 133 S. Ct. at 1669. Finally,
plaintiffs in the past have noted that the lead named plaintiff, Alexis Sarei,
used to be a U.S. resident alien. Dist. Ct. Dkt. No. 223, at 2. He is
reportedly now a member of the Bougainville parliament, 1 but even if he
still resided here it would not matter. The Kiobel plaintiffs had “moved to
the United States where they have been granted political asylum and now
reside as legal residents,” 133 S. Ct. at 1663, but their U.S. residence was
not enough to permit their claims to proceed. Under Kiobel, what matters is
1
See Rowan Callick, Battle Intensifies Over Bougainville Copper,
The Australian, July 16, 2011, available at
http://www.theaustralian.com.au/news/features/battle-intensifies-overbougainville-copper/story-e6frg6z6-1226094940146.
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not where the plaintiffs reside, but where the challenged conduct occurred,
and because the Kiobel plaintiffs were “seeking relief for violations of the
law of nations occurring outside the United States,” their case was “barred.”
Id. at 1669. The same is true here.
B.
This Court Should Affirm The District Court’s Dismissal
Of The Complaint With Prejudice
There is no reason to remand this matter to the district court. Its
dismissal with prejudice should be affirmed.
1. There are no viable claims left in the complaint. The existing ATS
claims must be dismissed with prejudice for the reasons stated, and plaintiffs
have abandoned the state-law claims they initially asserted. Plaintiffs’
original complaint included both ATS and common-law claims. ER 55-71;
see also ER 1112-43 (proposed amended complaint). The district court
dismissed the complaint in its entirety, with prejudice. Sarei v. Rio Tinto
PLC, 221 F. Supp. 2d 1116, 1208-09 (C.D. Cal. 2002). Plaintiffs did not
appeal the dismissal of the state-law claims, only the ATS claims. See Pls.
Br. of Jan. 6, 2003. Plaintiffs themselves acknowledged to the district court
on limited remand that their ATS claims were “the only claims Plaintiffs
appealed this Court’s dismissal of in 2002,” and that accordingly the district
court’s “prior dismissal in 2002 of the balance of Plaintiffs claims remains
law of the case.” Dist. Ct. Dkt. No. 232, at 2.
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This Court’s en banc judgment accordingly remanded the case “to the
district court for further proceedings on the claims of genocide and war
crimes,” 671 F.3d at 770 (emphasis added)—i.e., ATS claims—not on any
other claims. The only claims that remain in this case are ATS claims, and
they are barred by Kiobel.
2. Plaintiffs argued in response to Rio Tinto’s motion to stay the
mandate pending a petition for certiorari that even if its ATS claims were
dismissed, they could seek to amend the complaint on remand and add “nonATS claims based on diversity jurisdiction.” Pls. Response to Mot. to Stay
Mandate 5. Plaintiffs, however, have already pleaded non-ATS claims—
and abandoned them on appeal, as discussed above. Plaintiffs never asked
the district court to add new state-law claims, even when they sought leave
to amend their complaint. ER 1112-43. And they never argued in any
iteration of this appeal that the district court should have allowed them to
add new state-law claims. By failing to appeal even their existing state-law
claims, plaintiffs committed to litigating this case only under the ATS going
forward. Any argument for a remand to add new state-law claims was
waived long ago. See, e.g., Rick-Mik Enters., Inc. v. Equilon Enters. LLC,
532 F.3d 963, 976 (9th Cir. 2008).
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Finally, even if there were any non-ATS claims left for plaintiffs to
pursue, there would be no jurisdiction to hear them. Plaintiffs and
defendants alike are aliens, and Article III does not provide for diversity
jurisdiction unless at least one party is a U.S. citizen. See U.S. Const. art III,
§ 2, cl. 1; Mossman v. Higginson, 4 U.S. (4 Dall.) 12, 14 (1800) (Article III
jurisdiction in suits involving aliens is “confined to suits between citizens
and foreigners”); Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303 (1809)
(same); Saadeh v. Farouki, 107 F.3d 52, 56-61 (D.C. Cir. 1997) (same result
when one party is a resident alien and the other party is an alien).
CONCLUSION
This Court should affirm the district court’s initial decision dismissing
the complaint with prejudice.
Respectfully submitted,
/s/ Jonathan D. Hacker
JONATHAN D. HACKER
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5300
MATTHEW J. KLINE
O’MELVENY & MYERS LLP
1999 Avenue of the Stars
Los Angeles, Cal. 90067
(310) 246-6700
ANTON METLITSKY
O’MELVENY & MYERS LLP
7 Times Square
New York, New York 10036
(212) 326-2000
Dated: May 31, 2013
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CERTIFICATE OF SERVICE
I hereby certify that on May 31, 2013, I electronically filed the foregoing
with the Clerk of the Court for the U.S. Court of Appeals for the Ninth Circuit by
using the appellate CM/ECF system. Participants in the case who are registered
CM/ECF users will be served by the appellate CM/ECF system.
I further certify that some of the participants in the case are not registered
CM/ECF users. I have mailed the foregoing document by First-Class Mail,
postage prepaid, to the following non-CM/ECF participants:
Paul Stocker
15000 Village Green Drive
Suite 15
Mill Creek, WA 98102
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
Stephen M. Schwebel
1501 K Street NW
7th Floor
Washington, DC 20005
Paul N. Luvera Jr.
Luvera Law Firm
701 Fifth Ave.
Suite 6700
Seattle, WA 98104
Dated: May 31, 2013
/s/ Jonathan Hacker
Jonathan Hacker