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“…we on the Ninth Circuit now exercise jurisdiction over all the earth…”

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Friday, October 28, 2011 at 2:01 PM

Adding to this year’s judicial cornucopia of Alien Tort Statute decisions on corporate liability, on Tuesday an en banc Ninth Circuit released its long-awaited decision in the even longer-running (eleven years!) Rio Tinto case, ruling that the ATS does not generally preclude claims against corporations (although certain causes of action might not apply to corporations).  Over strong dissents, the majority opinion by Judge Mary Schroeder also rejects arguments that the ATS does not apply extraterritorially; that the ATS does not cover aiding and abetting liability; and that the claims against Rio Tinto (for alleged abuses relating to its mining operations in Papua New Guinea) are not barred by the political question or act-of-state doctrines or international comity.  The majority finds that genocide and war crimes are sufficiently well-defined and universally accepted norms under international law to be actionable under the Supreme Court’s Sosa test, but that crimes against humanity and racial discrimination are not.

The decision widens the circuit split on the issue of corporate liability, for which the Supreme Court granted cert last week in the Kiobel case.  The Ninth Circuit joins the Seventh, Eleventh, and DC Circuits in ruling for corporate liability, after the Second Circuit rejected corporate liability in Kiobel last September.  The Ninth Circuit gives remarkably short shrift to the issue (compared to the extensive analysis by the Second and DC Circuits), noting simply that neither the statutory language nor the legislative history of the ATS limits liability to natural persons.  In a rather opaque reference that appears consciously to ignore his present official position, the majority adds that its view is supported by “a distinguished contemporary scholar, Harold Hongju Koh…”

In passing and without any supporting authority, the majority also invents an entirely new doctrine — that the act-of-state doctrine (which precludes the federal courts from inquiring into the validity of the public acts of foreign sovereigns) does not apply to jus cogens violations.  To my knowledge, no other federal court has recognized such an exception.  Indeed, in the analogous area of sovereign and official immunity, other courts (including the Ninth Circuit itself) have found that there is no jus cogens exception to the immunities of foreign governments or their officials.  See, e.g., Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. 2009).

The majority opinion elicits sarcastic dissents from Judges Kleinfeld and Ikuta, with Judge Kleinfeld observing that “we on the Ninth Circuit now exercise jurisdiction over all the earth, on whatever matters we decide are so important that all civilized people should agree with us.”  (In less pithy language in a Wall Street Journal op-ed, I have also expressed concern about the U.S. serving as “world court.”)  For her part, Judge Ikuta also offers an interesting new argument against ATS liability  – that the ATS does not apply to suits by aliens against other aliens, because federal diversity jurisdiction is not satisfied.  The majority rejects this argument.

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