FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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; No. 02-56256
THOMAS KOBUKO; JOHN TAMUASI;
D.C. No.
NORMAN MOUVO; JOHN OSANI; BEN
2:00-cv-11695-
KORUS; NAMIRA KAWONA; JOANNE
BOSCO; JOHN PIGOLO; MAGDALENE
MMM-MAN
Central District of
PIGOLO, individually and on behalf
California,
of themselves and all others
Los Angeles
similarly situated,
Plaintiffs-Appellants,
v.
RIO TINTO, PLC; RIO TINTED
LIMITED,
Defendants-Appellees.
17563
17564 SAREI v. RIO TINTO
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; No. 02-56390
THOMAS KOBUKO; JOHN TAMUASI;
D.C. No.
NORMAN MOUVO; JOHN OSANI; BEN
CV-00-11695-
KORUS; NAMIRA KAWONA; JOANNE
BOSCO; JOHN PIGOLO; MAGDALENE
MMM
Central District of
PIGOLO, individually and on behalf
California,
of themselves and all others
Los Angeles
similarly situated,
Plaintiffs-Appellees,
v.
RIO TINTO, PLC; RIO TINTED
LIMITED,
Defendants-Appellants.
SAREI v. RIO TINTO 17565
ALEXIS HOLYWEEK SAREI; PAUL E.
NERAU; THOMAS TAMUASI; PHILLIP
MIRIORI; GREGORY KOPA;
METHODIUS NESIKO; ALOYSIUS
MOSES; RAPHEAL NINIKU; GARBIEL
TAREASI; LINUS TAKINU; LEO WUIS;
MICHAEL AKOPE; BENEDICT PISI;
THOMAS KOBUKO; JOHN TAMUASI; No. 09-56381
NORMAN MOUVO; JOHN OSANI; BEN
KORUS; NAMIRA KAWONA; JOANNE D.C. No.
BOSCO; JOHN PIGOLO; MAGDALENE 2:00-cv-11695-
PIGOLO, individually on behalf of
themselves & all others similarly
MMM- MAN
Central District of
situated, California,
Plaintiffs-Appellees, Los Angeles
v. ORDER
RIO TINTO, PLC; RIO TINTO
LIMITED,
Defendants-Appellants,
and
UNITED STATES OF AMERICA,
Movant.
Filed October 26, 2010
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
17566 SAREI v. RIO TINTO
ORDER
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.
KLEINFELD, Circuit Judge:
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 defen-
dants 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 Mel-
bourne, 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 oth-
erwise wronged the indigenous local people, sparking a civil
war. According to the complaint, the Papua New Guinea gov-
ernment 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 Califor-
nia resident alien when the complaint was filed (he is now
SAREI v. RIO TINTO 17567
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 certifi-
cation for a “War Crimes Class” and an “Environmental Right
to Life Class,” to include more than 10,000 people who suf-
fered 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 extraterrito-
rial. 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, noth-
ing 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.”1 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 mar-
ket indirectly affecting Americans.2 I suspect as well that this
case is inextricably entwined with foreign policy determina-
tions that are a political question.
1
See Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869, 2878
(2010).
2
Id. at 2875-76.
17568 SAREI v. RIO TINTO
The statute at issue here is the Alien Tort Statute, promul-
gated in 1789.3 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.”4 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.”5 There are stat-
utes that do apply extraterritorially, such as the Torture Vic-
tim Protection Act and the Extraterritorial Torture Statute, but
they say so, and the Alien Tort Statute does not.6
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.7 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.”8 Until the Alien Tort Statute was promulgated, we
3
28 U.S.C. § 1350.
4
Id.
5
Morrison, 130 S. Ct. at 2878.
6
Compare Torture Victim Protection Act of 1991, Pub. L. No. 102-256,
106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note (2006)) (creating
a civil claim for the victims of state-sponsored torture or killing performed
anywhere in the world), and 18 U.S.C. §§ 2340-2340A, 2441 (criminaliz-
ing torture performed anywhere in the world by an American national or
performed by anyone within the United States, or war crimes committed
by a member of the United States’ armed services), with Alien Tort Stat-
ute, 28 U.S.C. § 1350 (“The 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.”).
7
28 U.S.C. § 1350.
8
542 U.S. 692, 715 (2004) (citing 4 William Blackstone, Commentaries
*68) (“It was this narrow set of violations of the law of nations, admitting
SAREI v. RIO TINTO 17569
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.9
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 adjudicating or mediating the class action
claims in this case. The point of the Alien Tort Statute was to
keep us out of international disputes, not to inject us into
them.
Our authority to refer parties to mediation arises out of Fed-
eral Rule of Appellate Procedure 33. “The court may direct
the attorneys — and, when appropriate, the parties — to par-
ticipate in one or more conferences to address any matter that
may aid in disposing of the proceedings, including simplify-
ing the issues and discussing settlement.”10 Two words, “di-
rect” and “may,” are especially helpful in figuring out how
this rule should apply to this case.
of a judicial remedy and at the same time threatening serious conse-
quences in international affairs, that was probably on minds of the men
who drafted the A[lien ]T[ort ]S[tatute] with its reference to tort.”); see
also The Paquete Habana, 175 U.S. 677, 686 (1900); The Amiable Nancy,
16 U.S. (3 Wheat.) 546 (1818).
9
Sosa, 542 U.S. at 716-17.
10
Fed. R. App. P. 33 (emphasis added).
17570 SAREI v. RIO TINTO
For a court to “direct” anyone to do anything, it needs juris-
diction over the subject matter and the party. It would be
absurd to infer from the word “direct” that we could com-
mand people to do things in the absence of any authority over
the persons or subject matter. For example, had the plaintiffs
also sued the governments of Papua New Guinea, Bougain-
ville, and New Zealand, with each asserting sovereign immu-
nity, our mediation order implies that we could “direct” these
governments to negotiate settlement before deciding upon
their claims that we lacked any jurisdiction over them. As a
court of limited jurisdiction, however, we “possess only that
power authorized by Constitution and statute, which is not to
be expanded by judicial decree.”11 Though there is no author-
ity on point, I am inclined to think that because we can “di-
rect” mediation under the rule, it is implicit in the rule that
where jurisdiction is in grave doubt, jurisdiction must be
established prior to the exercise of judicial commands to the
parties to do anything that may substantively affect them.12
The second critical word in our mediation rule is “may.”
The word “may” implies discretion. Even if we somehow had
authority to direct parties to do anything when we lacked
jurisdiction over the case and over the subject matter of their
dispute, it would be imprudent to exercise that power here.
11
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(internal citations omitted).
12
Judge Reinhardt takes the position, incontrovertibly true but neverthe-
less irrelevant, that a court has jurisdiction to decide whether it has juris-
diction. See Judge Reinhardt Statement at 17574. He goes on, incorrectly,
to infer from the injunction to maintain the status quo issued in the United
Mineworkers’ strike pending the Court’s decision on subject matter juris-
diction under the Norris-LaGuardia Act, see United States v. United Mine
Workers, 330 U.S. 258, 292-93 (1947), that courts may issue injunctions
in any circumstance prior to determining whether they have jurisdiction,
see Judge Reinhardt Statement at 17574, and then leaps again from this
proposition to the conclusion that federal courts must likewise have the
power to direct parties to mediate regardless of jurisdictional concerns. I
hope to have Judge Reinhardt as a companion the next time I need to cross
a river in the absence of a bridge.
SAREI v. RIO TINTO 17571
Judge Reinhardt seems to think I am critical of mediation or
our mediator. Far from it. The problem with mediation in this
case is not that it is ineffectual, but rather that it is likely to
have great influence because of its high quality. And these are
not matters that we ought to influence, especially before
deciding whether we have jurisdiction. “It is generally impru-
dent to exercise all the power we may have, or to test the lim-
its of our power, and it is highly imprudent in this case.”13
We are asked to adjudicate a foreign company’s participa-
tion in Papua New Guinea’s civil war, a war that has evolved
into a delicate compromise between the Papua New Guinean
government and the Region of Bougainville. Upsetting the
compromise negotiated by New Zealand runs the risk of
reigniting the civil war. The central government and the
autonomous region may both be happy now with the idea of
local people getting some much needed money from a mul-
tinational corporation. But once the litigation train starts down
the track, it is hard to stop, and it is impossible to foresee its
consequences. Perhaps conflict may rear its head once more
if the class action produces a big bundle of money, and the
time comes to sort out who gets how much of it. Violence
may be used by parties with an interest to influence the medi-
ation in one direction or another, to sabotage it, or to prevent
a party from withdrawing from it, as often occurs in negotia-
tions between Israel and the Palestinians. This is, after all, a
lawsuit about a civil war.14
Nor is it necessarily the case that settlement here would be
a good thing. Sometimes settlement produces a just compro-
13
Nw. Env’t Advocates v. EPA, 340 F.3d 853, 855 (9th Cir. 2003)
(Kleinfeld, J., dissenting), cited in Horne v. Flores, 129 S. Ct. 2579, 2594
(2009).
14
Judge Reinhardt tells me I can “rest assured” that nothing bad will
happen on account of mediation. Judge Reinhardt Statement at 17575.
How would he know? I do not know whether mediation will cause prob-
lems in that faraway land. Unlike my colleague, I know that I do not
know.
17572 SAREI v. RIO TINTO
mise, sometimes an unjust compromise. The Democratic
Party’s platform in 1864 took the position that “after four
years of failure to restore the Union by the experiment of
war,” the conflict ought to be settled instead by peaceful agree-
ment.15 That would have avoided vast additional bloodshed,
but would have entailed a continuation of slavery, at least in
some parts of the slave states, for many more years.
Settlement is a means of achieving docket control and com-
promise, and sometimes, but not necessarily, a means of
attaining justice.16 When a typical construction dispute is set-
tled, that is usually a good thing, because there is usually right
on both sides. But when an innocent man pleads guilty to a
misdemeanor to avoid the risk of a felony, or when a carpen-
ter accepts $5,000 on a perfectly good $15,000 Miller Act
claim to avoid the expense of litigating against the bonding
company, these are bad things. This dispute about a mine and
civil war in Papua New Guinea is not a typical construction
dispute. This case involves a delicate matter of a foreign war
and a foreign peace, combined with an effective procedural
device for taking very large sums of money from deep-pocket
defendants, the class action. Mediation promotes compromise,
but we have no idea whether it is just or unjust to transfer
money from Rio Tinto to the proposed plaintiff classes. Push-
ing for a settlement in these circumstances, where jurisdiction
is most probably lacking and where there are far more appro-
priate jurisdictions that may choose whether to entertain the
lawsuit in its current form, would be imprudent to the point
of being an abuse of discretion. These are sophisticated par-
ties who, if they want to settle, can do it on their own.
15
Chandos Fulton, The History of the Democratic Party: From Thomas
Jefferson to Grover Cleveland 446 (1892).
16
See Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073, 1085-86
(1984) (“Parties might settle while leaving justice undone. . . . Although
the parties are prepared to live under the terms they bargained for, and
although such peaceful coexistence may be a necessary precondition of
justice, and itself a state of affairs to be valued, it is not justice itself.”
(footnote omitted)).
SAREI v. RIO TINTO 17573
If we proceed with ordering mediation in a foreign dispute
where we probably lack jurisdiction, why stop with Papua
New Guinea? As I walk to our courthouse in San Francisco,
passing one store selling carpets from Kashmir, one with
kilims from Afghanistan, and a Palestinian-owned hotel, I see
possible class actions right and left. There are so many places
with potential plaintiffs who may very well be resident aliens
just as Sarei was, and plenty of possibilities for alleging
human rights violations that harmed enough similarly situated
people to satisfy Civil Rule 23(a)’s requirements of numero-
sity, commonality, typicality, and adequacy of representation.17
Perhaps we could succeed where the State Department has
not. But nothing could more clearly be a political question,
consigned to the political branches of government, than the
settling of foreign disputes between foreigners arising out of
conduct in foreign lands. Such cases do not fall within our
jurisdiction unless Congress assigns them to us.18
The Alien Tort Statute was promulgated as a means of
keeping us out of foreign conflicts. Converting the statute into
a device for benevolent imperialism to advance human rights
(or class-action tourism) enmeshes our country in foreign con-
flicts outside of this court’s authority.
17
See Fed. R. Civ. P. 23(a); Dukes v. Wal-Mart Stores, Inc., 603 F.3d
571, 598-615 (9th Cir. 2010) (en banc).
18
See, e.g., Sosa, 542 U.S. 692, 728 (2004) (describing for example, the
Torture Victim Protection Act of 1991 as “a clear mandate . . . providing
authority that ‘establish[es] an unambiguous and modern basis for’ federal
claims of torture and extrajudicial killing.” (quoting H.R. Rep. No. 102-
367, pt. 1, p.3 (1991))).
17574 SAREI v. RIO TINTO
Statement of REINHARDT, Circuit Judge, in which
PREGERSON, McKEOWN, BERZON, and RAWLINSON,
Circuit Judges, join:
I write to respond briefly to Judge Kleinfeld’s dissent from
our non-dispositive order referring this case to Judge Leavy
to explore mediation for twenty-eight days. Judge Kleinfeld is
simply wrong to assert that we must first determine whether
we have subject matter jurisdiction before we may direct that
the parties explore mediation. It is among the most elementary
principles of federal jurisdiction that “a federal court always
has jurisdiction to determine its own jurisdiction.” United
States v. Ruiz, 536 U.S. 622, 628 (2002). While we are prop-
erly exercising our jurisdiction to decide, among other issues,
whether we have jurisdiction here, we may take any non-
dispositive action we deem prudent or necessary. We could,
for example, issue and enforce an injunction to preserve the
status quo, even if it later turned out that we lacked jurisdic-
tion all along. See United States v. United Mine Workers, 330
U.S. 258, 292-293 (1947). Referring a case to mediation prior
to our deciding the issues presented, as is permitted by the
Federal Rules and our Circuit Rules, is no different.1 It is
hardly anomalous that we refer this case to mediation while
jurisdictional issues are pending; indeed, we often do so in
immigration cases, sometimes with success.
Our court has long been a pioneer in the field of appellate
mediation, and we take great pride in our efforts to aid parties
in finding resolution outside the courtroom and beyond the
pages of the Federal Reporter.2 Because mediation allows for
1
Federal Rule of Appellate Procedure 33 states, “The court may direct
the attorneys — and, when appropriate, the parties — to participate in one
or more conferences to address any matter that may aid in disposing of the
proceedings, including simplifying the issues and discussing settlement.
. . .” Under our Circuit Rule 33-1, such “appellate conferences” may take
the form of mediation.
2
See, e.g., Judge J. Clifford Wallace, Improving the Appellate Process
Worldwide Through Maximizing Judicial Resources, 38 VAND. J.
SAREI v. RIO TINTO 17575
compromise and creativity in a way that litigation cannot —
circumscribed as it is by procedure and precedent — parties
have often found that mediation provides more satisfactory
relief than the court could fashion itself. Today we turn to our
colleague, Judge Edward Leavy, who has mediated many sig-
nificant disputes, such as a suit by sixty victims of clergy sex
abuse against the Archdiocese of Portland, the largest invest-
ment manager fraud case in American history, and the crimi-
nal prosecution of nuclear scientist Wen Ho Lee, in which
Judge Leavy succeeded in negotiating a plea agreement
between the defendant and the Department of Justice.
Although Judge Kleinfeld is anxious to decide the technical
legal questions presented to us, I am pleased that most of my
colleagues are willing to allow Judge Leavy a brief opportu-
nity to determine whether the parties can arrive at a mutually
satisfactory resolution to this case, which has been pending in
the federal courts for ten years and which may well, following
a decision by this court, require years more of litigation.
Our dissenting colleague is concerned that mediation may
be successful. Let us hope that he is right. He can rest assured,
however, that, whatever the outcome, it will not “reignit[e]
the civil war,” or cause any other disruption of international
affairs; nor, certainly, will the mere undertaking by Judge
Leavy of the task he has so graciously agreed to perform. We
can only wish that this court were as powerful or effective as
Judge Kleinfeld suggests. If the mediation succeeds, we will
simply have helped to resolve a complex legal dispute of great
importance to the various litigants by means of a peaceful set-
tlement rather than through extended litigation. In such case
TRANSNAT’L L. 187, 204-208 (2005); Judge Dorothy Wright Nelson, ADR
in the Federal Courts — One Judge’s Perspective, 17 OHIO ST. J. ON DISP.
RESOL. 1 (2001); see also Claudia Bernard, Mediation in the Ninth Circuit
Court of Appeals, FED. LAW. (May 2009), at 41; Lisa Evans, Mediation in
the Ninth Circuit Court of Appeals, 26 JUST. SYS. J. 351 (2005); S. Gale
Dick, The Surprising Success of Appellate Mediation, ALTERNATIVES TO
HIGH COST LITIG. (April 1995), at 41.
17576 SAREI v. RIO TINTO
we will be able to take great satisfaction from what we have
accomplished as members of the federal Judiciary.
Callahan, Circuit Judge:
I also dissent from our order referring this matter to media-
tion. In light of the substantial questions concerning our juris-
diction over the underlying controversy, the nature of the
controversy, the nature of the legal issues presented in this
appeal, as well as the passage of time since the inception of
this litigation, I question whether the reference to mediation
is appropriate at this juncture.