Tuesday, October 25, 2011

Sarei v. Rio Tinto (9th Cir. - Oct. 25, 2011)

I dare you to read this opinion.  Wait.  I take that back.  I double dare you.

It's an important case.  An Alien Tort Statute case arising out of the operations of the Rio Tinto mining group on the island of Bougainville, Papua New Guinea and the resulting uprising against Rio Tinto that led to military intervention and numerous deaths.

These things transpired in the 1980s.  The docket number of this appeal begins with "02-".  This is not the second time this case has been before the Ninth Circuit.  This is the second time it's been before an en banc Ninth Circuit court.

It's important.  It's long-running.  And it's hopelessly fractured.  You can barely tell the result even with a scorecard.

There are eleven members of the panel.  Judge Schroeder writes one opinion.  She gets three votes:  her own, Silverman and Berzon.  Judge Ikuta writes another opinion.  She gets four votes:  hers, as well as Judges Kleinfeld, Callahan, and Bea.  A lineup that substantially overlaps with Judge Kleinfeld's opinion, which is joined by Judges Bea and Ikuta.  As well as Judge Bea's opinion, which is joined by Judges Kleinfeld and Callahan.  Oh, and Judge Ikuta as well.  Except for Part III.  She's not on board for that.

Judge Reinhardt writes an opinion as well.  He agrees with Judge Schroeder, and joins her opinion.  Except for Parts II(C) and Part IV(B)(3).  Judge Pregerson is also willing to agree with what Judge Schroeder says.  Except he, like Judge Reinhardt, doesn't agree with portions of Part IV(B)(3).  But Judge Pregerson, unlike Judge Reinhardt, is willing to sign onto Part II(C).  Moreover, while Judge Reinhardt agrees with Parts IV(C) and (D), Judge Pregerson doesn't.  So doesn't sign onto those parts.

Judge Rawlinson agrees with Judge Pregerson.  So joins his opinion.

Then there's Judge McKeown.  She's fine with all of the above.  But she has a beef with two entirely different portions of Judge Schroeder's opinion:  Parts IV(A)(3) and IV(B)(4).  So she writes her own opinion.  Which is in turn joined by Judges Reinhardt and Berzon.  Except for Part II of that opinion.  For that, she's on her own.  But she's got three votes for Parts I, III and IV. 

The whole shebang is 170 single-spaced pages.  Of dense, dense prose.  One of the dissents alone -- Judge Kleinfeld's -- has 136 footnotes of its own.  The final footnote of which, if I'm not mistaken, consists of Judge Kleinfeld citing a law review article by his son Joshua.

So go ahead.  Read the thing.  Figure out the score, as well as the fights.

I dare ya.