Sarei v. Rio Tinto, PLC - En Banc Review Granted

On August 20, the Ninth Circuit granted the defendants-appellees' petition for rehearing en banc in Sarei v. Rio Tinto, PLC. (The briefs filed on the petition for rehearing can be found here.) Papua New Guinea nationals first filed suit in 2000 under to the Alien Tort Statute, alleging, inter alia, complicity in war crimes and crimes against humanity, violations of the United Nations Convention on the Law of the Sea (environmental harms), and racial discrimination by the defendant mining companies. The district court granted the defendants' motion to dismiss (under Rule 12(b)(6)) in July 2002. The case was first argued before the Ninth Circuit on September 8, 2003 and reargued July 23, 2005 (following the Supreme Court's decision in Sosa v. Alvarez-Machain). The panel issued its first opinion on August 7, 2006, but, on petition for rehearing or rehearing en banc, the panel withdrew its 2006 opinion and issued a new opinion on April 12, 2007. In that opinion, the panel reversed or vacated the district court's dismissal of the plaintiffs' claims on justiciability grounds (political questions, act of state, and international comity). The panel affirmed the district court's finding that the plaintiffs were not required to exhaust remedies in Papua New Guinea. The 2007 panel opinion has now been withdrawn by the en banc court, the opinion of which will be greatly anticipated.