Sarei

This appeal presents questions of justici-ability and exhaustion in the context of the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”). Plaintiffs are current or for *1074 mer residents of Bougainville, Papua New Guinea (“PNG”), who allege that they or their family members were the victims of numerous violations of international law as a result of defendant mining corporation Rio Tinto, PLC’s (“Rio Tinto”) Bougain-ville mining operations and the 10-year civil conflict that followed an uprising at the Rio Tinto mine. 1 The plaintiffs appeal the district court’s dismissal of their lawsuit seeking redress under the ATCA, which provides that “[t]he district courts shall have original jurisdiction of 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 several different doctrines of justiciability are at issue here — the political question doctrine, the act of state doctrine and the doctrine of international comity — all in effect provide different ways of asking one central question: are United States courts the appropriate forum for resolving the plaintiffs’ claims? The answer to…

dissenting:

In Sosa v. Alvarez-Machain, the Supreme Court addressed arguments that “international law requires that before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system.” 542 U.S. 692 , 733 n. 21, 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004). Although declining to do so in Sosa, the Court declared that it “would certainly consider this requirement in an appropriate case.” Id. This is such a case.

Plaintiffs-Bougainvilleans alleged that Rio Tinto, a multinational British corporation, violated various jus cogens, including war crimes, crimes against humanity, racial discrimination, and environmental despoliation. They also allege that Rio Tinto directed these actions through the government of Papua New Guinea (“PNG”). These actions took place beginning in the early 1960s, culminating in a 10-year civil war from 1990 to 2000. See Sarei v. Rio Tinto PLC, 221 F.Supp.2d 1116, 1121-27 (C.D.Cal.2002). In 2001, the U.S. Department of State warned that adjudication of the Bougainville claims in U.S. courts posed a “very grave” threat to the “conduct of our foreign relations.” The State Department’s Statement of…

Volume 1 of

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEXIS HOLYWEEK SAREI; PAUL E. 

NERAU; THOMAS TAMAUSI; PHILLIP

MIRIORI; GREGORY KOPA;

METHODIUS NESIKO; ALOYSIUS

MOSES; RAPHEAL NINIKU; GABRIEL

TAREASI; LINUS TAKINU; LEO WUIS;

MICHAEL AKOPE; BENEDICT PISI;

THOMAS KOBUKO; JOHN TAMUASI;

NORMAN MOUVO; JOHN OSANI; BEN No. 02-56256

KORUS; NAMIRA KAWONA; JOANNE

BOSCO; JOHN PIGOLO; MAGDALENE

 D.C. No.

CV-00-11695-

PIGOLO, individually and on behalf MMM of themselves and all others similarly situated, Plaintiffs-Appellants, v.

RIO TINTO, PLC; RIO TINTED

LIMITED,

Defendants-Appellees. 

8935 8936 SAREI v. RIO TINTO

ALEXIS HOLYWEEK SAREI; PAUL E. 

NERAU; THOMAS TAMAUSI; PHILLIP

MIRIORI; GREGORY KOPA;

METHODIUS NESIKO; ALOYSIUS

MOSES; RAPHEAL NINIKU; GABRIEL

TAREASI; LINUS TAKINU; LEO WUIS;

MICHAEL AKOPE; BENEDICT PISI;

THOMAS KOBUKO; JOHN TAMUASI; No. 02-56390 NORMAN MOUVO; JOHN OSANI; BEN D.C. No.

KORUS; NAMIRA KAWONA; JOANNE

BOSCO; JOHN PIGOLO; MAGDALENE

 CV-00-11695-

MMM

PIGOLO, individually and on behalf of…