Mediation Referral Sparks Angry Ninth Circuit Dissent (Oct. 29, 2010).

An Oct. 26 order by the full Ninth U.S. Circuit Court of Appeals sending a long-running suit over over responsibility for civil war atrocities and environmental pollution in Papau New Guinea to mediation, sparked a dissent by one circuit judge that castigated the en banc court’s decision.

Mediation, ironically, fares well on both sides. Dissenting Circuit Judge Andrew J. Kleinfeld writes that he fears that the process is so good it might produce results that can lead to a disruption of the peace that was struck in 1999 between the South Pacific country of Papua New Guinea, and its former region, Bougainville Island, which is now an autonomous region.

In a responding “statement,” Circuit Judge Stephen R. Reinhardt, notes that the Ninth Circuit is an appellate mediation pioneer, and the ADR process can “provide more satisfactory relief than the court could fashion itself.”

Reinhardt, joined by four of the 11 circuit judges issuing the order, discounts Kleinfeld’s claims that mediation could reignite the war.or disrupt international affairs.

The case deals with the reach of the 1789 Alien Tort Statute.

Last Tuesday, the Ninth Circuit issued the en banc order “to explore the possibility of mediating” the nearly decade old dispute. It assigned the case to Portland, Ore.-based Ninth Circuit Senior Circuit Judge Edward Leavy, who didn’t take part in the en banc order.

The Reinhardt statement notes that Leavy has a long history of mediating high-profile cases, including “a suit by 60 victims of clergy sex abuse against the Archdiocese of Portland, the largest investment manager fraud case in American history, and the criminal prosecution of nuclear scientist Wen Ho Lee,” which resulted in a plea deal with the U.S. Justice Department.

Leavy was given 28 days to report to the en banc court on whether mediation should proceed, or whether the case should be returned to the court.

In the case, current and former residents of Bougainville Island allege that the Rio Tinto PLC, a mining company based in London and Melbourne, Australia, shared responsibility with the Papua New Guinea, government, for damaging the island's environment and committing war crimes during the 1990-1998 civil war. The plaintiffs seek certification for a “War Crimes Class” and an “Environmental Right to Life Class,” which would include more than 10,000 people.

Jurisdiction under the Alien Tort Act is controversial. Judge Kleinfeld ‘s dissent states that the Court has no jurisdiction because the case is “entirely extraterritorial” and that “nothing could more clearly be a political question, consigned to the political branches of government, than the settling of foreign disputes between foreigners arising out of conduct in foreign lands.”

The dissent criticizes the order’s issuance because no determination on jurisdiction was made. Kleinfeld says Alien Tort Act jurisdiction is doubtful.

But he also explains that he is “far from” critical of mediation or Leavy’s appointment. He writes that mediation “is likely to have great influence because of its high quality. And these are not matters that we ought to influence, especially before deciding whether we have jurisdiction.”

Kleinfeld writes:

Violence may be used by parties with an interest to influence the mediation in one direction or another, to sabotage it, or to prevent a party from withdrawing from it, as often occurs in negotiations between Israel and the Palestinians. This is, after all, a lawsuit about a civil war.

Judge Reinhardt’s statement responds to these concerns. He writes:

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. Because mediation allows for compromise and creativity in a way that litigation cannot -circumscribed as it is by procedure and precedent - parties have often found that mediation provides more satisfactory relief than the court could fashion itself.

Reinhardt addressed Kleinfeld’s jurisdiction arguments. Reinhardt wrote that “among the most elementary principles of federal jurisdiction [is] that ‘a federal court always has jurisdiction to determine its own jurisdiction.'" United States v. Ruiz, 536 U.S. 622, 628 (2002).

He notes later that Federal Rule of Appellate Procedure 33 states that '[t]he court may direct.the . . . parties . . . to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement..” The opinion continues, “Under our Circuit Rule 33-1, such ‘appellate conferences’ may take the form of mediation.”

Judge Kleinfeld counters that Reinhardt incorrectly inferred that since a court may issue an injunction to maintain a status quo while it weighs jurisdictional issues, a court also may

issue injunctions in any circumstance prior to determining whether they have jurisdiction  . . . [Reinhardt] then leaps again from this proposition to the conclusion that federal courts must likewise have the power to direct parties to mediate regardless of jurisdictional concerns. I hope to have Judge Reinhardt as a companion the next time I need to cross a river in the absence of a bridge.

Furthermore, Kleinfeld wrote, even if the court can direct parties without jurisdiction, it would be inappropriate to do so in this case.

Reinhardt’s statement explains the en banc court’s goal for a mediation. The statement is intended to provide assurance about the order. It concludes, “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. In such case we will be able to take great satisfaction from what we have accomplished as members of the federal Judiciary.”

Judge Kleinfeld responded directly in his dissent to Reinhardt.

Judge Reinhardt tells me I can “rest assured” that nothing bad will happen on account of mediation. [Citation omitted.] How would he know? I do not know whether mediation will cause problems in that faraway land. Unlike my colleague, I know that I do not know.
–Darren Bleier, CPR Intern