Sarei v. Rio Tinto, PLC

550 F.3d 822, 2008 U.S. App. LEXIS 25279, 2008 WL 5220286

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2008
• Docket: 02-56256, 02-56390
• Status: Published

Opinions

Opinion by Judge McKEOWN; Concurrence by Judge BEA; Dissent by Judge IKUTA; Concurrence by Judge KLEINFELD; Dissent by Judge REINHARDT.

McKEOWN, Circuit Judge,

joined by Judges SCHROEDER and SILVERMAN:

Current and former residents of Bou-gainville, Papua New Guinea (“PNG”), brought suit under the Alien Tort Statute (“ATS”), claiming that various war crimes, crimes against humanity, racial discrimination, and environmental torts arose out of Rio Tinto’s mining operations on Bougain-ville. Plaintiffs allege Rio Tinto is liable not only for its actions that led to a civil war, but -also vicariously for those of the PNG government, acting as Rio Tinto’s agent or partner.

This case raises an important question of the role of exhaustion under the ATS, which bestows jurisdiction on United States courts for “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. Although the ATS does not itself require an alien to exhaust local remedies before invoking the jurisdiction of our courts, the Supreme Court signaled in Sosa v. Alvarez-Machain that a prudential or judicially-imposed exhaustion requirement for ATS claims “would certainly [be considered] in an appropriate case.” 542 U.S. 692, 733 n. 21, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). The application of Sosa to exhaustion under the ATS is a matter of first impression in this circuit, and we hold that this is “an appropriate case” to consider whether to invoke the exhaustion analysis.

Although we decline to impose an absolute requirement of exhaustion in ATS cases, we conclude that, as a threshold matter, certain ATS claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law.¹ Where the “nexus” to the United States is weak, courts should carefully consider the question of exhaustion, particularly — but not exclusively — with respect to claims that do not involve matters of “universal concern.” Matters of “universal concern” are offenses “for which a state has jurisdiction to punish without regard to territoriality or the nationality of the offenders.” Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir.1995) (citing Restatement (Third) Foreign Relations Law of the United States § 404 (1987) (“Restatement (Third) ”)). Because the district court did not analyze exhaustion as a discretionary matter, we remand for the district court to address this issue in the first instance, using the framework outlined below.

BaCKGRound ²

Bougainville is an island in the South Pacific located just off the main island of PNG. Rich in natural resources, including copper and gold, the island was targeted as a prime mining site by defendants Rio Tinto, pic, a British and Welsh corporation, and Rio Tinto Limited, an Australian corporation (collectively “Rio Tinto”). Rio Tinto is part of an international mining group that operates over sixty mines and processing plants in forty countries, including the United States. To operate a mine on Bougainville, Rio Tinto required and received the assistance of the PNG government. According to the complaint, beginning in the 1960s, Rio Tinto displaced villages, razed massive tracts of rain forest, intensely polluted the land, rivers, and air (with extensive collateral consequences including fatal and chronic illness, death of wildlife and vegetation, and failure of farm land), and systematically discriminated against its Bougainvillian workers, who lived in slave-like conditions.

In November 1988, some Bougainville residents revolted; they sabotaged the mine and forced its closure. After Rio Tinto demanded that the PNG government quash the uprising, the government complied and sent in troops. PNG forces used helicopters and vehicles supplied by Rio Tinto. On February 14, 1990, the country descended into a civil war after government troops slaughtered many Bougainvil-lians in what has come to be known as the “St. Valentine’s Day Massacre.”

Unable to resume mining, Rio Tinto threatened to abandon its operations and halt all future investment in PNG unless the government took military action to secure the mine. In April 1990, the PNG government imposed a military blockade on the island that lasted almost a decade. The blockade prevented medicine, clothing, and other necessities from reaching the residents. Under further pressure from Rio Tinto, according to the complaint, the government engaged in aerial bombardment of civilian targets, wanton killing and acts of cruelty, village burning, rape, and pillage. As a result, an estimated fifteen thousand Bougainvillians, including many children, died. Of the survivors, tens of thousands are displaced and many suffer health problems. In March 2002, the PNG Parliament formalized a peace accord that ended the civil war.

In November 2000, nearly a year and a half before the civil war formally ended, plaintiffs filed this class action, raising numerous claims under the ATS: (1) crimes against humanity resulting from the blockade; (2) war crimes for murder and torture; (3) violation of the rights to life, health, and security of the person resulting from the environmental damage; (4) racial discrimination in destroying villages and the environment, and in working conditions; (5) cruel, inhuman, and degrading treatment resulting from the blockade, environmental harm, and displacement; (6) violation of international environmental rights resulting from building and operating the mine; and (7) a consistent pattern of gross violations of human rights resulting from destruction of the environment, racial discrimination, and PNG military activities. Plaintiffs also raised various non-ATS claims ranging from negligence to public nuisance.

The district court determined plaintiffs stated various cognizable ATS claims: war crimes, crimes against humanity, racial discrimination, and violation of the United Nations Convention on the Law of the Sea (“UNCLOS”). Sarei v. Rio Tinto, PLC, 221 F.Supp.2d 1116, 1149, 1151, 1155, 1162 (C.D.Cal.2002). Nonetheless, the district court dismissed the entire complaint as presenting nonjusticiable political questions. Id. at 1198-99. The court alternatively dismissed the racial discrimination and environmental tort claims under the act of state doctrine, id. at 1193, as well as the doctrine of international comity, id. at 1207. Finally, it also held that the ATS did not require exhaustion of local remedies, but did not address exhaustion as a prudential or discretionary issue. Id. at 1132-39.

After the plaintiffs filed their notice of appeal, the Supreme Court decided the landmark case of Sosa, which clarified that the ATS is a jurisdictional statute and held that “federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted.” 542 U.S. at 732, 124 S.Ct. 2739. As noted, the Court also adverted for the first time to exhaustion under the ATS.

On appeal, a three-judge panel affirmed in part, reversed in part, vacated in part, and remanded, with one judge dissenting. Sarei, 487 F.3d at 1223-24. The majority held that the district court had subject matter jurisdiction under the ATS because plaintiffs alleged nonfrivolous jus cogens violations for racial discrimination, war crimes, and crimes against humanity, including any claims that rested on vicarious liability. Id. at 1202. The panel concluded .that the district court erred when it dismissed plaintiffs’ claims as political questions. Id. at 1208. The panel further held that the district court erred by dismissing the racial discrimination claim under the act of state doctrine, and that the district court should reconsider its dismissal of the UNCLOS claim on this ground. Id. at 1209-10. The panel remanded so the district court could also reconsider its dismissal of the racial discrimination and UNCLOS claims under the doctrine of international comity. Id. at 1213.

Finally, as to the issue that is the sole focus of this en banc opinion, the panel majority held that the ATS does not require exhaustion of local remedies. Id. at 1223. The court reasoned that (1) the language of the statute does not require exhaustion; (2) the legislative history contains no reference to exhaustion or even to the ATS itself; (3) Congress’s inclusion of an explicit exhaustion requirement in the Torture Victims Protection Act of 1991 suggests that Congress did not intend to require exhaustion of ATS claims; and (4) policy concerns did not justify creating an exhaustion requirement as a matter of judicial discretion. Id. at 1215, 1218, 1223.

In dissent, Judge Bybee addressed only the exhaustion issue. He concluded that international law requires exhaustion of local remedies and that in the exercise of judicial discretion, our federal courts should require exhaustion. Id. at 1237 (Bybee, J., dissenting).

Because this case presents a number of issues of exceptional importance, we ordered that it be heard en banc pursuant to Circuit Rule 35-3. Sarei v. Rio Tinto, PLC, 499 F.3d 923 (9th Cir.2007).

Analysis

I. Exhaustion In ATS Cases

As the Supreme Court directed in Sosa, exhaustion of local remedies should “certainly” be considered in the “appropriate case” for claims brought under the ATS. 542 U.S. at 733 n. 21, 124 S.Ct. 2739. This is an appropriate case for such consideration under both domestic prudential standards and core principles of international law.

Here, the district court declined to consider imposing exhaustion. The district court held that the ATS created a domestic cause of action — a view shared by many courts before Sosa — and that exhaustion of local remedies was not required to state a claim, because the statute itself did not explicitly incorporate exhaustion. Sarei 221 F.Supp.2d at 1138-39. The Supreme Court has since clarified that the ATS is a jurisdictional statute that does not create a cause of action and has noted the availability of exhaustion in an “appropriate case.”

The parties, the district court, and the panel majority and dissent all analyzed the exhaustion question by initially asking whether the ATS requires exhaustion. The inquiry as to whether exhaustion is required by the statute leads with the wrong foot post-Sosa.

Our starting point is the Court’s explicit reference to exhaustion in Sosa:

This requirement of clear definition is not meant to be the only principle limiting the availability of relief in the federal courts for violations of customary international law, though it disposes of this action. For example, the European Commission argues as ami-cus curiae that basic principles of international law require that before asserting the claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system, and perhaps in other forums such as international claims tribunals. We would certainly consider this requirement in an appropriate case.

542 U.S. at 733 n. 21, 124 S.Ct. 2739 (internal citations omitted). See also id. at 760, 124 S.Ct. 2739 (Breyer, J., concurring in part and in the judgment) (“The Court also suggests that principles of exhaustion might apply .... ” (emphasis added)). Thus, the Court appears to consider exhaustion a prudential “principle” among others that courts should consider beyond the initial task of determining whether the alleged violations of the ATS satisfy the “requirement of clear definition.” Id. at 733 n. 21, 124 S.Ct. 2739.³

Approaching exhaustion as a prudential principle renders unnecessary our wading into the debate whether the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350, which was adopted in 1991 and explicitly incorporates an exhaustion requirement, offers insight into Congress’s intent to impose the same requirement in the context of the ATS, which was enacted in 1789. See Sarei, 487 F.3d at 1215-19; id. at 1227-30 (Bybee, J., dissenting).⁴ Not only does this TVPA comparison not particularly forward the discussion, Sosa’s pronouncement relieves us of the need to engage in the comparison in the first place.

Prudential exhaustion also avoids another jurisprudential debate remaining in the wake of Sosa: whether exhaustion is a substantive norm of international law, to which the “requirement of clear definition” applies; or if it is nonsubstantive,⁵ what source of law — federal common law or international law — illuminates its content. See Sarei, 487 F.3d at 1221. Though Sosa is vague on this broad question of methodology, it unambiguously states that the “requirement of clear definition” of an international norm is distinct from the consideration of other factors that might also serve to limit the relief available through the ATS. 542 U.S. at 733 n. 21, 124 S.Ct. 2739. In the absence of any further comment by the Supreme Court, it is fair to assume (at least for the purposes of exhaustion) that we may freely draw from both federal common law and international law without violating the spirit of Sosa’s instructions or committing ourselves to a particular method regarding other nonsub-stantive aspects of ATS jurisprudence left open after Sosa.

II. Prudential Exhaustion [1] Judicially-imposed or prudential exhaustion is not a prerequisite to the exercise of jurisdiction, but rather is “one among related doctrines — including abstention, finality, and ripeness- — -that govern the timing of federal-court decision-making.” McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), superceded by statute as stated in Booth v. Churner, 532 U.S. 731, 732, 121 5.Ct. 1819, 149 L.Ed.2d 958 (2001). Although some statutory exhaustion requirements are jurisdictional in nature,⁶ prudential exhaustion originated in habeas corpus cases to serve a gatekeeping function preventing “unnecessary conflict between [federal and state] courts equally bound to guard and protect rights secured by the [Constitution.” Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 29 L.Ed. 868 (1886); see also Hemphill v. Moseley, 443 F.2d 322, 323 (10th Cir.1971) (applying exhaustion in habeas case originating in military court system). Exhaustion in this context has been described as “grounded in principles of comity.” Castille v. Peoples, 489 , 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989).

The principle of comity also underlies the requirement of tribal court exhaustion. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14-15, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) (quoting United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975)) (“[Exhaustion] reflects the fact that Indian tribes retain ‘attributes of sovereignty over both their members and their territory.’ ”). Invoking exhaustion out of respect for another sovereign, as we do in the case of tribal courts, resonates most forcefully in the international context.

III. The Exhaustion of Local Remedies Rule in International Law

“Under international law, ordinarily a state is not required to consider a claim by another state for an injury to its national until that person has exhausted domestic remedies, unless such remedies are clearly sham or inadequate, or their application is unreasonably prolonged.” Restatement (Third) § 713 cmt. f; see also id. § 703 cmt. d; Interhandel Case (Switz. v. U.S.), 1959 I.C.J. 6, 26 (Mar. 29) (“The rule that local remedies must be exhausted before international proceedings may be instituted is a well-established rule of customary international law.”).⁷ The rule is generally applied when one state pursues the cause of one of its nationals, whose rights another state has disregarded in violation of international law: “Before resort may be had to an international court in such a situation, it has been considered necessary that the State where the violation occurred should have an opportunity to redress it by its own means, within the framework of its own domestic legal system.” Interhandel, 1959 I.C.J. at 27; see also Restatement (Third) §§,703 cmt. d, 713 cmt. f.

Because sovereigns are co-equal in the international legal arena, one sovereign can exercise power over another only through consent. See United States v. Diekelman, 92 U.S. 520, 524, 23 L.Ed. 742 (1875) (“[A sovereign’s] own dignity, as well as the dignity of the nation he represents, prevents his appearance to answer a suit against him in the courts of another sovereignty, except in performance of his obligations, by treaty or otherwise, voluntarily assumed.”). Even in the face of sovereigns’ consent to the jurisdiction of international tribunals, principles of comity have dictated that exhaustion remains a requirement. Thus, for example, the treaties establishing international human rights courts have codified the exhaustion principle in their statutes as a general requirement for the admissibility of complaints. See, e.g., The Matter of Viviana Gallardo et al, Series A., No. G 101/81, Inter-Am. C.H.R., Nov. 13, 1981, ¶ 26 (“[Exhaustion] is designed for the benefit of the State,” because it “excuse[s] the State from having to respond to charges before an international body for acts imputed to it before it has had the opportunity to remedy them by internal means.”).⁸

Nonetheless, codification of the exhaustion requirement in international treaties is not in absolute terms. International law — both private and public — has long anticipated that local remedies might not always be adequate and that justice may be denied if claimants are forced to exhaust before being heard in an international forum. Restatement (Third) §§ 703 cmt. d, 713, cmt. f. A core element of the exhaustion rule is its futility, or denial of justice exception, which excuses exhaustion of local remedies where they are unavailable or inadequate. Id.

United States courts have also recognized the futility exception with regard to human rights claims, see, e.g., Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 5 (9th Cir.1996) (discussing Senate Report for the TVPA, which places the burden on the plaintiff to show that the local remedies were “ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile”), as well as in more routine matters, such as tax, see, e.g., Newcomb v. Comm’r, 23 T.C. 954, 960-61, 1955 WL 703 (1955) (“We do not think that if respondent had attempted to pursue any remedies in the Canadian courts he would have met with any success. The courts do not require one to do a useless act.”).

IY. Considerations Animating Exhaustion

Though it is self-evident, it is worth remembering that in ATS adjudication, the United States courts are not international tribunals. With this in mind, the appropriateness of applying prudential exhaustion to some ATS cases only gains force; if exhaustion is considered essential to the smooth operation of international tribunals whose jurisdiction is established only through explicit consent from other sovereigns, then it is all the more significant in the absence of such explicit consent to jurisdiction.

Certain ATS cases, like this one, present United States courts with scenarios that simultaneously appeal to two divergent impulses that have traditionally played out in our country’s international affairs and have been imported into our legal system. The first impulse is to safeguard and respect the principle of comity. See Societe National Industrielle Aerospatiale v. United States Dish Court for S. Dist. of Iowa, 482 U.S. 522, 544 n. 27, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987) (“Comity refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states.”). The second is the American role in establishing collective security arrangements that support international institutions, including international tribunals. See, e.g., Charter of the International Military Tribunal, art. 1, Aug. 8, 1945 (The United States, along with the Allied powers, collectively establishing the Tribunal “for the just and prompt trial and punishment of major war criminals of the European Axis.”). Both impulses draw from the recognition that we need a complement to our domestic system, because we are but one member in a community of nations. In that community, international law plays a substantive role.

But international law also imposes limits. The lack of a significant United States “nexus” to the allegations here stimulates the comity impulse. These claims involve a foreign corporation’s complicity in acts on foreign soil that affected aliens (though at least one of them — Sarei—has enjoyed the status of a lawful permanent resident of this country for some time now). This situation thus lacks the traditional bases for exercising our sovereign jurisdiction to prescribe laws, namely nationality, territory, and effects within the United States. See Restatement (Third) § 403(2) at cmt. d. (stating jurisdiction is appropriately exercised with respect to activity outside the state that has or intends to have substantial effect within the state’s territory). The lack of a significant U.S. “nexus” is an important consideration in evaluating whether plaintiffs should be required to exhaust their local remedies in accordance with the principle of international comity.

The nature of certain allegations and the gravity of the potential violations of international law also trigger the second impulse: our historical commitment to upholding customary international law. Some of the claims — torture, crimes against humanity, and war crimes' — may implicate matters of “universal concern,” generally described as offenses “for which a state has jurisdiction to punish without regard to territoriality or the nationality of the offenders.” Kadic, 70 F.3d at 240 (citing Restatement (Third) § 404); see also Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 108 (2d Cir.2000) (holding “the policy expressed in the TVPA favoring adjudication of claims of violations of international prohibitions on torture” weighed against dismissing the action on forum non conveniens grounds).

Nonetheless, simply because universal jurisdiction might be available, does not mean that we should exercise it. Indeed, the basis for exercising universal civil jurisdiction, such as under the ATS, is not as well-settled as the basis for universal criminal jurisdiction. See Sosa, 542 U.S. at 761-63, 124 S.Ct. 2739 (Breyer, J., concurring in part and in the judgment) (noting the lack of “similar procedural consensus supporting the exercise of jurisdiction” in ATS cases as obtained to piracy in the 18th century or the contemporary exercise of universal criminal jurisdiction over matters of universal concern).⁹ Even the few courts that have exercised some form of universal criminal jurisdiction over matters of “universal concern” have done so cautiously. See Cedric Ryngaert, Applying the Rome Statute’s Complementarity Principle: Drawing Lessons from the Prosecution of Core Crimes by States Acting under the Universality Principle, 19 Crim. L.F. 153, 155-73 (2006) (surveying decisions by Austria, Belgium, France, Germany, and Spain).

This caution counsels that in ATS cases where the United States “nexus” is weak, courts should carefully consider the question of exhaustion, particularly — but not exclusively — with respect to claims that do not involve matters of “universal concern.” With these underlying principles in place, we suggest a framework for evaluating exhaustion.

V. A Framework For Evaluating Exhaustion

To begin, exhaustion under the ATS should be approached consistently with exhaustion principles in other domestic contexts. The defendant bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies. See Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 919, 166 L.Ed.2d 798 (2007) (“[T]he usual practice under the Federal Rules is to regard exhaustion as an affirmative defense.”). Although the plaintiff may rebut this showing with a demonstration of the futility of exhaustion, the ultimate burden remains with the defendant. See, e.g., Honig v. Doe, 484 U.S. 305, 325-29, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (allowing plaintiffs to by-pass administrative process where exhaustion would be futile or inadequate).

This same burden-shifting analysis is invoked under the TVPA:

[OJnce the defendant makes a showing of remedies abroad which have not been exhausted, the burden shifts to the plaintiff to rebut by showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile. The ultimate burden of proof and persuasion on the issue of exhaustion of remedies, however, lies with the defendant.

S.Rep. No. 102-249, at 9 (1991); accord Hilao, 103 F.3d at 778 n. 5 (quoting TVPA Senate Report). While the TVPA is not dispositive of the question of whether exhaustion is required by the ATS, the TVPA nonetheless provides a useful, con-gressionally-crafted template to guide our adoption of an exhaustion principle for the ATS. See Enahoro v. Abubakar, 408 F.3d 877, 890 (7th Cir.2005) (Cudahy, J., dissenting) (“[WJhile not directly applicable to the ATS, the TVPA scheme is surely persuasive.”).

As a preliminary matter, to “exhaust,” it is not sufficient that a plaintiff merely initiate a suit, but rather, the plaintiff must obtain a final decision of the highest court in the hierarchy of courts in the legal system at issue, or show that the state of the law or availability of remedies would make further appeal futile. Chithar-anjan Felix Amerasinghe, Local Remedies in International Law 181 (2d ed.1990); see also Interhandel, 1959 I.C.J. at 26-27 (analyzing, in determining whether remedies had been exhausted, the stage of litigation plaintiff had reached in United States courts).

Another basic element is that the remedy must be available, effective, and not futile. Restatement (Third) §§ 703 cmt. d, 713 cmt. f; see generally Amera-singhe, supra, at 166-71, 187-207. To measure effectiveness, a court must look at the circumstances surrounding the access to a remedy and the ultimate utility of the remedy to the petitioner. Restatement (Third) §§ 703 cmt. d, 713 cmt. f. In addition, “[w]hen a person has obtained a favorable decision in a domestic court, but that decision has not been complied with, no further remedies need be exhausted.” Id. § 713 cmt. f. A judgment that cannot be enforced is an incomplete, and thus ineffective, remedy. The adequacy determination will also necessarily include an assessment of any delay in the delivery of a decision. Amerasinghe, supra, at 203-06.

Conclusion

We remand to the district court for the limited purpose to determine in the first instance whether to impose an exhaustion requirement on plaintiffs.¹⁰

Remanded for proceedings consistent with this opinion.

1 . See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 127 S.Ct. 1184, 1191, 167 L.Ed.2d 15 (2007) (holding "a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits” (internal quotation marks omitted)). Although Judge Ikuta ”see[s] no basis for holding that the district court erred by failing to consider exhaustion before other threshold issues,” Ikuta Dissent at 837, exhaustion stands on different footing than a decision, for example, on political question or act of state grounds. As a prudential matter, in this case there is a certain logic to considering exhaustion before considering threshold grounds that may "deny[ ] audience to a case on the merits.” Sinochem Int’l Co., 127 S.Ct. at 1191.

2 . This background is drawn from the complaint; at this stage, we accept plaintiffs’ allegations as true. Alperin v. Vatican Bank, 410 F.3d 532, 541 (9th Cir.2005). A more detailed articulation of the facts is found in the district court’s thoughtful and extensive opinion. See Sarei v. Rio Tinto, 221 F.Supp.2d 1116, 1121-30 (C.D.Cal.2002).

3 . Judge Bea posits that the Court was contemplating a mandatory exhaustion requirement. Bea Concurrence at 834-35. Judge Reinhardt argues the Court did not signal a thing. Reinhardt Dissent at 841. The reality is that the Court neither mandated exhaustion nor said the principle should be ignored. Given the debate over the language in Sosa and the fact that neither the Court nor Congress has imposed a mandatory exhaustion requirement under the ATS, prudential exhaustion best reflects a cautious and practical resolution. Approaching exhaustion as a prudential principle countenances — and attempts to reconcile — many of the competing concerns expressed in both Judge Bea’s concurrence and Judge Reinhardt's dissent.

4 . Judge Bybee's dissent to the panel opinion is thorough and scholarly. Although drawing on his reasoning and analysis, we do not subscribe to his approach in toto because it would impose exhaustion as an absolute requirement in ATS cases.

5 . According to several commentators, this division is an issue "on which much intellectual energy has been wasted,” so we need not add to the mix. See Robert Rosenstock & Margo Kaplan, Current Development: The Fifty-Third Session of the International Law Commission, 96 Am. J. Int’l L. 412, 417 (2002) (discussing exhaustion in the context of diplomatic protection, and noting Special Rapporteur's analysis, which distinguishes cases where the failure to provide a local remedy is part of the underlying wrong, making the rule substantive, from cases where a subsequent act, such as the denial of justice, creates a wrong that incurs the right of diplomatic protection, making the rule procedural); see also Sarei, 487 F.3d at 1234-36 (Bybee, J. dissenting).

6 . See, e.g., Weinberger v. Salfi, 422 U.S. 749, 764-67, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (holding 42 U.S.C. § 405(h) of the Social Security Act contains a jurisdictional exhaustion requirement); Platte River Whooping Crane Critical Habitat Maint. Trust v. FERC, 876 F.2d 109, 112-13 (D.C.Cir.1989) (interpreting Federal Power Act statute, 16 U.S.C. § 8251(b), to provide a jurisdictional exhaustion requirement); Lindsey v. U.S., 448 F.Supp.2d 37, 51 (D.D.C.2006) (interpreting provision of the Internal Revenue Code, 26 U.S.C. § 7422(a), as imposing a jurisdictional exhaustion requirement).

7 . The United States accepted compulsory jurisdiction of the International Court of Justice (“ICJ”), a judicial organ of the United Nations, until 1986, when, in the wake of the ICJ's exercise of jurisdiction over a suit brought against the United States by Nicaragua, the United States withdrew its consent to compulsory jurisdiction. See Letter from George P. Schultz, Secretary of State of the United States of America, to Javier Perez de Cuellar, Secretary-General of the United Nations (Oct. 7, 1985), reprinted in 24 I.L.M. 1742 (1985). Now, the United States accepts jurisdiction of the ICJ on a case-by-case basis or in particular treaties. See Statute of the International Court of Justice, art. 36, para. 1, June 26, 1945, 156 U.N.T.S. 77.

8 . See also The European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 35, Nov. 4, 1950, 213 U.N.T.S. 222 ("The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.”); The American Convention on Human Rights, art. 46, Nov. 22, 1969, 1144 U.N.T.S. 143 ("Admission by the Commission of a petition or communication ... shall be subject to the following requirements: that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law.”).

9 . See Sosa, 542 U.S. at 762-63, 124 S.Ct. 2739 (Breyer, J., concurring in part and in the judgment) (citing Brief Amicus Curiae the European Commission in Support of Neither Party, filed in Sosa v. Alvarez-Machain, 2004 WL 177036, at *17-22 (U.S. Jan. 23, 2004)).

10 . Six judges concur in a limited remand for the district court to consider exhaustion. Because prudential exhaustion is a narrower ground of exhaustion than statutory exhaustion — a statutory exhaustion analysis must be applied in every case but a prudential exhaustion analysis only in some cases — the plurality’s prudential exhaustion requirement controls. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).