A human rights lawsuit filed by residents of the South Pacific island of Bougainville against mining company Rio Tinto has become one of the early casualties of the Supreme Court's ruling in Kiobel v. Royal Dutch Petroleum
On Friday the U.S. Court of Appeals for the Ninth Circuit issued a one-page order dismissing with prejudice the plaintiffs' case filed under the Alien Tort Statute, citing Kiobel. In Kiobel, the high court ruled in April that the statute applies only to conduct in United States territory.
O'Melveny & Myers partner Jonathan Hacker represented Rio Tinto before the Ninth Circuit. (He took over when his partner Sri Srinivasan became U.S. Solicitor General.) Hacker did not immediately return a request for comment.
In October 2011 the Ninth Circuit reversed a district court and allowed the plaintiffs' genocide and war crimes claims against Rio Tinto to go forward. The plaintiffs accused the company of helping the Papua New Guinea military carry out mass killings by providing it with weapons and helicopters. In the divided 2011 opinion, the court rejected Rio Tinto's argument that corporations can't be held liable under the Alien Tort Statute, and that the statute doesn't apply extraterritorially.
Rio Tinto filed for cert, but the Supreme Court remanded the case to the Ninth Circuit shortly after issuing its Kiobel decision.
Steve Berman of Hagens Berman Sobol Shapiro represented the plaintiffs and received our Litigator of the Week honor in October 2011 for keeping the 13-year-old suit alive. He didn't immediately return a request for comment.
Rio Tinto is one of the first high-profile cases to be tossed on the grounds set forth in Kiobel , said Professor Vivian Curran of the University of Pittsburgh School of Law. In June another ATA lawsuit was dismissed in federal court in Alexandria, Virginia. U.S. District Judge Gerald Bruce Lee found that he didn’t have jurisdiction to consider claims that government contractor CACI International conspired to torture detainees at the Abu Ghraib prison.
"It looks like now there will be a real circumscription of the Alien Tort Statute," said Curran. "It's early, but from what we can see, the lower courts are applying the majority [ Kiobel ] opinion."
Editor's note: An earlier version of this story incorrectly stated that O'Melveny's Jonathan Hacker took over this case for Rio Tinto when when his partner Sri Srinivasan was nominated to the U.S. Court of Appeals for the D.C. Circuit. Hacker took over when Srinivasan became Solicitor General. We regret the error.
