More Justice Denied Based on Supreme Court’s Kiobel Decision

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Michelle recently blogged about the district court’s dismissal in Al-Shimari v. CACI, the first significant decision applying the Supreme Court’s holding in Kiobel v. Royal Dutch Petroleum. Now another important Alien Tort Statute has been dismissed in the wake of Kiobel. The United States Court of Appeals for the Ninth Circuit recently dismissed Sarei v. Rio Tinto PLC, a case arising out of the Rio Tinto mining company’s operations on the island of Bougainville, in Papua New Guinea (PNG). The plaintiffs allege that Rio Tinto abetted the PNG military forces in committing various abuses against local indigenous groups, including Alien Tort Statute (ATS) violations such as crimes against humanity. ERI submitted a number of friend of the court briefs in the case.

That the Ninth Circuit dismissed the ATS claims in Sarei is no surprise; the plaintiffs told the Ninth Circuit they were voluntarily dismissing those claims after Kiobel, presumably because, likeKiobel itself, the case had little if any connection to the United States.

But unlike in Kiobel, the plaintiffs here had originally brought claims under state law as well as the ATS, so there was hope that the plaintiffs would still be allowed their day in court. Defendants, however, argued that plaintiffs had abandoned those claims, and although the court did not explain its decision, we assume it accepted that argument.

The dismissal should not have any impact on other cases; the Ninth Circuit did not purport to apply Kiobel or issue any legal rulings. And there is nothing in Sarei or Kiobel to suggest that the state law claims cannot proceed in cases where ATS claims are barred by Kiobel. But after over a decade of litigation, these plaintiffs, who allegedly suffered egregious abuses at the behest of Rio Tinto, have been denied even the chance at a measure of justice.

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