Wednesday, December 17, 2008

Sarei v. Rio Tinto PLC (U.S. Court of Appeals for the Ninth Circuit, en banc)

Yesterday, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, decided Sarei v. Rio Tinto PLC (judgment here; background here). In a splintered decision, the majority held that there was an exhaustion requirement for Alien Tort Statute cases. Writing for the plurality, Judge McKeown, joined by Judges Schroeder and Silverman, wrote that the case should be remanded for an inquiry into exhaustion. In her view, exhaustion is applied as a prudential (not statutory) matter and that the exhaustion inquiry should precede the application of other doctrines, such as political question or act of state. Judge Bea, joined by Judge Callahan, agreed that the case should be remanded on exhaustion grounds, but found that requirement in the ATS itself, not judicial prudence. Judge Ikuta, joined by Judge Kleinfeld, dissented. She would have affirmed the dismissal of the case on subject matter jurisdiction grounds. Judge Kleinfeld also concurred in the result (remand for an exhaustion inquiry), in order to provide clear direction to the lower court. Judge Reinhardt, joined by Judges Pregerson, Berzon, and Rawlinson, dissented, finding no exhaustion analysis was required.