court case
Nearly a decade into a court battle involving a foreign company and its alleged role in spurring civil war in a South Pacific country, the 9th U.S. Circuit Court of Appeals is suggesting mediation.
Monday's surprising en banc order came after last month's oral arguments in a case that stood to test the scope and reach of the 1789 Alien Tort Act. A successful mediation might allow the en banc court to avoid, for now, some of the tougher questions surrounding the law's use in targeting corporate behavior overseas.
The mediation directive prompted a scorching dissent from Judge Andrew Kleinfeld, who argued the court probably doesn't have jurisdiction, that mediation may not serve justice, and that such talks could reignite violence in a region by upsetting a compromise between the Papua New Guinean government and the Region of Bougainville.
"This dispute about a mine and civil war in Papua New Guinea is not a typical construction dispute," Kleinfeld wrote. "This case involves a delicate matter of a foreign war and a foreign peace, combined with an effective procedural device for taking very large sums of money from deep-pocket defendants, the class action."
He continued: "Pushing for a settlement in these circumstances, where jurisdiction is most probably lacking and where there are far more appropriate jurisdictions that may choose whether to entertain the lawsuit in its current form, would be imprudent to the point of being an abuse of discretion.
"These are sophisticated parties who, if they want to settle, can do it on their own."
The proposed class action in Sarei v. Rio Tinto, 02-56256, was filed on behalf of some 10,000 people who say they suffered from violence, threats of violence and pollution from Rio Tinto's copper mining in Bougainville.
Since the Alien Tort Act "gives no clear indication of an extraterritorial application, it has none," Kleinfeld wrote..
"For reasons that escape me, some seem to infer from the Alien Tort Statute's reference to 'the law of nations' that it does not matter where the violation of the law of nations occurred," the judge added. "Perhaps the implicit assumption is that no one in the United States would violate the law of nations.
"That, of course, would be nonsense."
None of the 10 others on the en banc panel joined Kleinfeld's dissent. Judge Consuelo Callahan wrote a separate paragraph questioning whether mediation is appropriate.
Judge Stephen Reinhardt, in a "statement" signed by four other judges, disputed Kleinfeld's assertion that the court must first determine subject-matter jurisdiction before directing mediation. Reinhardt said Kleinfeld also overstates the court's influence on foreign affairs: "We can only wish that this court were as powerful or effective as Judge Kleinfeld suggests," he wrote.
And Reinhardt touts the circuit's history of engaging in novel mediation practices. "Our court has long been a pioneer in the field of appellate mediation, and we take great pride in our efforts to aid parties in finding resolution outside the courtroom and beyond the pages of the Federal Reporter," he wrote. He was joined by Judges Harry Pregerson, Margaret McKeown, Marsha Berzon and Johnnie Rawlinson.
The order referred the matter for mediation before Senior Judge Edward Leavy, who is to report back in 28 days.
Reinhardt in his "statement" noted Leavy has mediated significant disputes, such as a suit by 60 victims of clergy sex abuse in Oregon, a huge investment manager fraud case and the prosecution of nuclear scientist Wen Ho Lee, in which he brokered a plea deal.
"If the mediation succeeds, we will simply have helped to resolve a complex legal dispute of great importance to the various litigants by means of a peaceful settlement rather than through extended litigation," Reinhardt wrote.
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