Sarei

dissenting:

I write separately because I would affirm the dismissal of this case on the ground that we lack subject matter jurisdiction. Although I agree with the majority that in light of Sosa v. Alvarez-Machain, 542 U.S. 692 , 733 n. 21, 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004), a district court may consider whether to dismiss claims brought under the Alien Tort Statute (ATS), 28 U.S.C. § 1350 , on the ground that the plaintiffs failed to exhaust remedies in the appropriate forum, I see no basis for holding that the district court here erred by failing to consider exhaustion before the other threshold issues on which it relied to dismiss this case (e.g., political question, act of state, and subject matter jurisdiction). The Supreme Court has made clear that “a federal court has leeway ‘to choose among threshold grounds for denying audience to a case on the merits,’ ” and there is no mandatory sequencing of non-merits grounds for disposing of a case. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 , 127 S.Ct. 1184, 1191 , 167 L.Ed.2d 15 (2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 , 119 S.Ct. 1563 , 143 L.Ed.2d 760 (1999), Steel Co. v.…

concurring:

I concur in the result reached by Judge McKeown’s opinion, limited remand for consideration of whether exhaustion should be required. I do so because we must provide some clear direction to the district court, and only a result adopted by a majority can do so.

In my view, Judge Ikuta’s dissent is correct, and I join in it fully. Even so, failure to exhaust is an additional reason for dismissal and need not conflict with the reasons for dismissal stated by Judge Iku-ta. 1

The issue of exhaustion arises only because the Alien Tort Statute has been stretched far beyond its purpose. Were it properly confined to what the term “the law of nations” generally meant when Congress passed the statute (“The principal offences against the law of nations ... are of three kinds; [1.] violation of safe-conducts; 2. Infringement of the rights of [a]mbassadors; and 3. Piracy.” 2 ), the issue *841 of exhaustion would not arise. Imperialistic application of the term “law of nations” to whatever we American judges strongly disapprove of undermines the purpose of the law of nations, “that the peace of the world may be maintained.” 3

The plurality opinion remands this action to the…

Opinion by Judge McKEOWN; Concurrence by Judge BEA; Dissent by Judge IKUTA; Concurrence by Judge KLEINFELD; Dissent by Judge REINHARDT.

joined by Judges SCHROEDER and SILVERMAN:

Current and former residents of Bou-gainville, Papua New Guinea (“PNG”), brought suit under the Alien Tort Statute (“ATS”), claiming that various war crimes, crimes against humanity, racial discrimination, and environmental torts arose out of Rio Tinto’s mining operations on Bougain-ville. Plaintiffs allege Rio Tinto is liable not only for its actions that led to a civil war, but -also vicariously for those of the PNG government, acting as Rio Tinto’s agent or partner.

This case raises an important question of the role of exhaustion under the ATS, which bestows jurisdiction on United States courts for “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.” 28 U.S.C. § 1350 . Although the ATS does not itself require an alien to exhaust local remedies before invoking the jurisdiction of our courts, the Supreme Court signaled in Sosa v. Alvarez-Machain that a prudential or judicially-imposed exhaustion requirement for ATS claims “would…

concurring, joined by Judge CALLAHAN:

The plurality opinion holds judicial prudence requires the district court to consider whether Sarei exhausted his local remedies before filing his action in the United States. I concur in the plurality’s conclusion that the district court erred by failing to conduct an exhaustion analysis, 1 and I agree a limited remand is the preferable solution. However, I think the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350 , and not mere judicial prudence, requires the district court to consider exhaustion, and I write separately to explain why.

I read Sosa v. Alvarez-Machain, 542 U.S. 692 , 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004), differently than does the plurality. In Sosa , the United States Supreme Court explained the ATS is a jurisdictional statute that does not create any substantive law; it simply provides a forum for hearing existing causes of action that arise under the law of nations, if such causes of action exist. See id. at 712 , 124 S.Ct. 2739 (“[W]e think that at the time of enactment the jurisdiction [conferred by the ATS] enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at…

Robert M. Loeb (argued), U.S. Department of Justice, Washington, DC, for amicus curiae the United States of America.

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.

Opinion by Judge McKEOWN; Concurrence by Judge BEA; Dissent by Judge IKUTA; Conncurrence by Judge KLEINFELD; Dissent by Judge REInHARDT.

McKEOWN, Circuit Judge, joined by Judges SCHROEDER and SILVERMAN:

Current and former residents of Bougainville, Papua New Guinea ("PNG"), brought suit under the Alien Tort Statute ("ATS"), claiming that various war crimes, crimes against humanity, racial discrimination, and environmental torts arose out of Rio Tinto's mining operations on Bougainville. Plaintiffs allege Rio Tinto is liable not only for its actions that led to a civil war, but also vicariously for those of the PNG government, acting as Rio Tinto's agent or partner.

This case raises an important question of the role of exhaustion under the ATS, which bestows jurisdiction on United States courts for "any civil action by an alien…