UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 1 of 14 Appeal Nos. 02-56256, 02-56390 & 09-56381 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ALEXIS HOLYWEEK SAREI, ET AL., Plaintiffs - Appellants/Cross-Appellees, v. RIO TINTO plc and RIO TINTO LIMITED, Defendants - Appellees/Cross-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION CASE NO. 00-CV-11695-MMM-MAN (HON.MARGARET M. MORROW) DEFENDANTS-APPELLEES/CROSS-APPELLANTS SUPPLEMENTAL BRIEF IN RESPONSE TO THIS COURT S APRIL 24, 2013 ORDER MATTHEW J. KLINE O MELVENY &MYERS LLP 1999 Avenue of the Stars Los Angeles, Cal. 90067 (310) 246-6700 JONATHAN D. HACKER O MELVENY &MYERS LLP 1625 Eye Street, N.W. Washington, D.C. 20006 (202) 383-5300 ANTON METLITSKY O MELVENY &MYERS LLP 7 Times Square New York, New York 10036 (212) 326-2000 Attorneys for Defendants-Appellees Rio Tinto plc and Rio Tinto Limited

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 2 of 14 TABLE OF CONTENTS Page INTRODUCTION... 1 BACKGROUND... 2 ARGUMENT... 4 A. Kiobel Mandates Dismissal Of Plaintiffs ATS Claims... 4 B. This Court Should Affirm The District Court s Dismissal Of The Complaint With Prejudice... 7 CONCLUSION... 9 i

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 3 of 14 CASES TABLE OF AUTHORITIES Page(s) Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303 (1809)...9 Kiobel v. Royal Dutch Petroleum Co., 132 S. Ct. 472 (2011)...3 Kiobel v. Royal Dutch Petroleum Co., 132 S. Ct. 1738 (2012)...3 Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013)...passim Morrison v. Nat l Austl. Bank Ltd., 130 S. Ct. 2869 (2010)...4 Mossman v. Higginson, 4 U.S. (4 Dall.) 12 (1800)...9 Rick-Mik Enters., Inc. v. Equilon Enters. LLC, 532 F.3d 963 (9th Cir. 2008)...8 Rio Tinto PLC v. Sarei, S. Ct., 2013 WL 1704704 (Apr. 24, 2013)...3 Saadeh v. Farouki, 107 F.3d 52 (D.C. Cir. 1997)...9 Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002)...7 Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011)...2, 8 CONSTITUTION AND STATUTES U.S. Const. art III, 2, cl. 1...9 28 U.S.C. 1350...1 ii

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 4 of 14 OTHER AUTHORITIES TABLE OF AUTHORITIES (continued) Page(s) Rowan Callick, Battle Intensifies Over Bougainville Copper,The Australian, July 16, 2011...6 iii

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 5 of 14 INTRODUCTION The Supreme Court s decision in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), requires dismissal of this action, which cannot be distinguished in any material way from the action unanimously rejected in Kiobel. The Kiobel plaintiffs brought suit against foreign corporations under the Alien Tort Statute ( ATS ), 28 U.S.C. 1350, alleging that they were liable for aiding and abetting the Nigerian government s violations of international human rights norms in Nigeria. The Supreme Court held that the suit could not go forward because it sought relief for violations of the law of nations occurring outside the United States, and because all the relevant conduct took place outside the United States. Kiobel, 133 S. Ct. at 1669. While the Court was divided in its reasoning, both the five-justice majority opinion (id.) and the four-justice concurring opinion (id. at 1677-78 (Breyer, J., concurring in the judgment)) agreed that claims under the ATS cannot be asserted against a foreign corporation for assisting a foreign government in committing human rights violations on its own soil. The complaint in this case is materially identical to the complaint in Kiobel. As in Kiobel, plaintiffs have sued foreign corporations Rio Tinto plc (incorporated in the United Kingdom), and Rio Tinto Limited

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 6 of 14 (incorporated in Australia) for allegedly assisting a foreign government s commission of human rights violations in its own territory. As in Kiobel, the challenged conduct occurred entirely outside the United States the alleged human rights violations occurred in Papua New Guinea, and there is no allegation of any conduct at all within United States territory. Because plaintiffs here, just like the plaintiffs in Kiobel, seek[] relief for violations of the law of nations occurring outside the United States, Kiobel, 133 S. Ct. at 1669, their complaint, just like the complaint in Kiobel, must be dismissed. BACKGROUND Plaintiffs complaint seeks to hold Rio Tinto plc and Rio Tinto Limited (collectively, Rio Tinto ), which are incorporated in the United Kingdom and Australia, respectively, liable under the ATS for allegedly assisting the Papua New Guinea government in committing human rights violations on its own soil during its civil war. Rio Tinto argued as one basis for dismissal of the complaint that the ATS does not apply extraterritorially, particularly when no nexus to the United States is alleged in the complaint. In its most recent opinion in this case, a divided en banc panel of this Court held that the ATS permits claims challenging the alleged conduct of a foreign corporation that occurs wholly outside U.S. territory. See Sarei v. 2

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 7 of 14 Rio Tinto, PLC, 671 F.3d 736, 744-47 (9th Cir. 2011). This Court subsequently stayed its mandate pending the Supreme Court s resolution of Rio Tinto s petition for certiorari. Several days before the Court s en banc opinion was issued, the Supreme Court granted certiorari in Kiobel on the question whether the ATS supports corporate liability. See 132 S. Ct. 472 (2011). Rio Tinto subsequently filed a petition for certiorari presenting that issue and several others, including the question whether the ATS applies to conduct that occurred within the territory of a foreign sovereign. After oral argument in Kiobel, the Court called for supplemental briefing and argument on the principal question presented in Rio Tinto s petition: Whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. Kiobel v. Royal Dutch Petroleum Co., 132 S. Ct. 1738 (2012). On April 17, 2013, the Supreme Court issued its opinion in Kiobel, unanimously affirming the dismissal of the complaint on extraterritoriality grounds. The Court subsequently granted Rio Tinto s petition for certiorari in this case, vacated this Court s prior judgment, and remanded the case to this Court for further consideration in light of Kiobel. Rio Tinto PLC v. 3

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 8 of 14 Sarei, S. Ct., 2013 WL 1704704 (Apr. 24, 2013). On April 24, 2013, this Court directed the parties to submit supplemental briefs addressing the effect of the Supreme Court s recent decision in [Kiobel] on this appeal. ARGUMENT Kiobel compels dismissal of plaintiffs ATS claims. And because only ATS claims remain in the operative complaint, the district court s dismissal of the complaint with prejudice should be affirmed. A. Kiobel Mandates Dismissal Of Plaintiffs ATS Claims 1. Kiobel involved an ATS claim against a foreign corporation that had allegedly assisted a foreign government in committing human rights violations abroad. 133 S. Ct. at 1662. The complaint was properly dismissed, the Court held, because claims under the ATS cannot seek[] relief for violations of the law of nations occurring outside the United States. Id. at 1669; see id. at 1666 (ATS claims cannot target conduct occurring in the territory of another sovereign ). The Court s analysis relied on the presumption that United States law governs domestically but does not rule the world. Id. at 1664 (quotation omitted); see Morrison v. Nat l Austl. Bank Ltd., 130 S. Ct. 2869, 2878 (2010). That presumption against extraterritoriality, the Court concluded, applies to claims under the ATS, and nothing in the statute rebuts that 4

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 9 of 14 presumption. 133 S. Ct. at 1669. Just the opposite: the concerns underlying the presumption against extraterritoriality are magnified in the context of the ATS. Id. at 1664 (emphasis added). Whereas the presumption against extraterritoriality serves to protect against unintended clashes between our laws and those of other nations which could result in international discord, id. (quotation omitted), ATS claims arising from conduct within the territory of a foreign sovereign have generated diplomatic strife, id. at 1669 a concern the Court repeatedly emphasized, see id. at 1664, 1665, 1667. The Court thus concluded that the ATS does not permit claims seeking relief for violations of the law of nations occurring outside the United States. Id. That rule, in turn, required dismissal of the Kiobel complaint, because all the relevant conduct took place outside the United States. Id. The Court s judgment affirming the dismissal on extraterritoriality grounds was unanimous. Justice Breyer s four-justice concurrence urged a different approach to extraterritoriality, see id. at 1671, but his approach likewise required dismissal of the Kiobel claims, because the defendants are two foreign corporations, the plaintiffs are not United States nationals but nationals of other nations, the conduct at issue took place abroad, and 5

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 10 of 14 the plaintiffs allege, not that the defendants directly engaged in acts of torture, genocide, or the equivalent, but that they helped others (who are not American nationals) to do so. Id. at 1677-78. 2. This case is indistinguishable from Kiobel. As in Kiobel, plaintiffs complaint has no connection whatsoever to the United States. As in Kiobel, the complaint names only foreign corporations as defendants. As in Kiobel, these foreign corporations are alleged to have assisted the commission of human rights violations entirely within the territory of a foreign sovereign (Papua New Guinea). As in Kiobel, there is no allegation of any conduct within the United States at all instead all the relevant conduct took place outside the United States. 133 S. Ct. at 1669. Finally, plaintiffs in the past have noted that the lead named plaintiff, Alexis Sarei, used to be a U.S. resident alien. Dist. Ct. Dkt. No. 223, at 2. He is reportedly now a member of the Bougainville parliament, 1 but even if he still resided here it would not matter. The Kiobel plaintiffs had moved to the United States where they have been granted political asylum and now reside as legal residents, 133 S. Ct. at 1663, but their U.S. residence was not enough to permit their claims to proceed. Under Kiobel, what matters is 1 See Rowan Callick, Battle Intensifies Over Bougainville Copper, The Australian, July 16, 2011, available at http://www.theaustralian.com.au/news/features/battle-intensifies-overbougainville-copper/story-e6frg6z6-1226094940146. 6

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 11 of 14 not where the plaintiffs reside, but where the challenged conduct occurred, and because the Kiobel plaintiffs were seeking relief for violations of the law of nations occurring outside the United States, their case was barred. Id. at 1669. The same is true here. B. This Court Should Affirm The District Court s Dismissal Of The Complaint With Prejudice There is no reason to remand this matter to the district court. Its dismissal with prejudice should be affirmed. 1. There are no viable claims left in the complaint. The existing ATS claims must be dismissed with prejudice for the reasons stated, and plaintiffs have abandoned the state-law claims they initially asserted. Plaintiffs original complaint included both ATS and common-law claims. ER 55-71; see also ER 1112-43 (proposed amended complaint). The district court dismissed the complaint in its entirety, with prejudice. Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1208-09 (C.D. Cal. 2002). Plaintiffs did not appeal the dismissal of the state-law claims, only the ATS claims. See Pls. Br. of Jan. 6, 2003. Plaintiffs themselves acknowledged to the district court on limited remand that their ATS claims were the only claims Plaintiffs appealed this Court s dismissal of in 2002, and that accordingly the district court s prior dismissal in 2002 of the balance of Plaintiffs claims remains law of the case. Dist. Ct. Dkt. No. 232, at 2. 7

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 12 of 14 This Court s en banc judgment accordingly remanded the case to the district court for further proceedings on the claims of genocide and war crimes, 671 F.3d at 770 (emphasis added) i.e., ATS claims not on any other claims. The only claims that remain in this case are ATS claims, and they are barred by Kiobel. 2. Plaintiffs argued in response to Rio Tinto s motion to stay the mandate pending a petition for certiorari that even if its ATS claims were dismissed, they could seek to amend the complaint on remand and add non- ATS claims based on diversity jurisdiction. Pls. Response to Mot. to Stay Mandate 5. Plaintiffs, however, have already pleaded non-ats claims and abandoned them on appeal, as discussed above. Plaintiffs never asked the district court to add new state-law claims, even when they sought leave to amend their complaint. ER 1112-43. And they never argued in any iteration of this appeal that the district court should have allowed them to add new state-law claims. By failing to appeal even their existing state-law claims, plaintiffs committed to litigating this case only under the ATS going forward. Any argument for a remand to add new state-law claims was waived long ago. See, e.g., Rick-Mik Enters., Inc. v. Equilon Enters. LLC, 532 F.3d 963, 976 (9th Cir. 2008). 8

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 13 of 14 Finally, even if there were any non-ats claims left for plaintiffs to pursue, there would be no jurisdiction to hear them. Plaintiffs and defendants alike are aliens, and Article III does not provide for diversity jurisdiction unless at least one party is a U.S. citizen. See U.S. Const. art III, 2, cl. 1; Mossman v. Higginson, 4 U.S. (4 Dall.) 12, 14 (1800) (Article III jurisdiction in suits involving aliens is confined to suits between citizens and foreigners ); Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303 (1809) (same); Saadeh v. Farouki, 107 F.3d 52, 56-61 (D.C. Cir. 1997) (same result when one party is a resident alien and the other party is an alien). CONCLUSION This Court should affirm the district court s initial decision dismissing the complaint with prejudice. Respectfully submitted, MATTHEW J. KLINE O MELVENY &MYERS LLP 1999 Avenue of the Stars Los Angeles, Cal. 90067 (310) 246-6700 /s/ Jonathan D. Hacker JONATHAN D. HACKER O MELVENY &MYERS LLP 1625 Eye Street, N.W. Washington, D.C. 20006 (202) 383-5300 ANTON METLITSKY O MELVENY &MYERS LLP 7 Times Square New York, New York 10036 (212) 326-2000 Dated: May 31, 2013 9

Case: 02-56256 05/31/2013 ID: 8651138 DktEntry: 382 Page: 14 of 14 CERTIFICATE OF SERVICE I hereby certify that on May 31, 2013, I electronically filed the foregoing with the Clerk of the Court for the U.S. Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, to the following non-cm/ecf participants: Paul Stocker 15000 Village Green Drive Suite 15 Mill Creek, WA 98102 Stephen M. Schwebel 1501 K Street NW 7th Floor Washington, DC 20005 Judith Brown Chomsky P.O. Box 29726 Elkins Park, PA 19027 Paul N. Luvera Jr. Luvera Law Firm 701 Fifth Ave. Suite 6700 Seattle, WA 98104 Dated: May 31, 2013 /s/ Jonathan Hacker Jonathan Hacker