The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 1998 Decided April 10, 1998
No. 97-7191
In re: Minister Papandreou et al.,
Petitioners
Rosemarie Marra and
Marrecon Enterprises, S.A.,
Respondents
United States of America,
Amicus Curiae supporting Petitioner
Appeal from the United States District Court
for the District of Columbia
(No. 96cv01535)
Richard L. Brusca argued the cause for petitioners. With
him on the briefs were Katharine S. Sexton and Rachel
Mariner.
Mark H. Alcott argued the cause and filed the brief for
respondents.
John S. Koppel, Attorney, U.S. Department of Justice,
argued the cause for amicus curiae the United States. With
him on the briefs were Frank W. Hunger, Assistant Attorney
General, Mary Lou Leary, Acting U.S. Attorney at the time
the brief was filed, Stephen W. Preston, Deputy Assistant
Attorney General, U.S. Department of Justice, Michael Jay
Singer, Attorney, and Linda Jacobson, Assistant Legal Ad-
viser for Diplomatic Law and Litigation, U.S. Department of
State.
Before: Williams, Henderson and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Williams.
Concurring opinion filed by Circuit Judge Henderson.
Williams, Circuit Judge: The petitioners seeking manda-
mus in this court, Greek Minister of Tourism Vaso Papan-
dreou and other Greek governmental entities, are defendants
in an action in district court (the "Greek Government Defen-
dants"). The plaintiffs in that action, respondents here, are
Rosemarie Marra and Marrecon Enterprises, a Liberian cor-
poration of which Marra is president and sole shareholder.
Marrecon holds a nine per cent interest in a consortium that
paid $44 million for a license to operate a casino in Athens.
About a year after issuing the license, the Greek government
revoked it and offered to refund the $44 million. In the
underlying action plaintiffs seek damages for a breach of
contract and an unlawful confiscation of property. The Greek
Government Defendants have sought dismissal on several
grounds, among them standing defects, the act of state doc-
trine, lack of personal jurisdiction, the doctrine of forum non
conveniens, and the jurisdictional bar of the Foreign Sover-
eign Immunities Act of 1976 ("FSIA"), 28 U.S.C. ss 1330,
1602-1611.
Plaintiffs in the district court sought discovery aimed at
evaluation of the FSIA defense, including depositions of
Minister Papandreou and Minister of the Economy Gianos
Papantoniou, which they say are designed to dig up informa-
tion on the scope and nature of the defendants' solicitation of
U.S. investment in the casino. The district court authorized
the depositions, and the Greek Government Defendants now
petition for a writ of mandamus to vacate that discovery
order. Finding that the district court failed to consider less
intrusive means of obtaining the information the respondents
seek, we issue the writ.
* * *
Mandamus is a "drastic" remedy, "to be invoked only in
extraordinary situations." Kerr v. U.S. Dist. Court, 426 U.S.
394, 402 (1976). One reason for this parsimony is obvious:
petitions for mandamus are close substitutes for appeals.
Lax rules on mandamus would undercut the general rule that
courts of appeals have jurisdiction only over "final decisions
of the district courts," 28 U.S.C. s 1291, and would lead to
piecemeal appellate litigation. Of course, even under s 1291
a final judgment in the conventional sense of the term is not
always necessary; under Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 546 (1949), a "collateral order" will do.
But again, undue expansion of mandamus jurisdiction would
circumvent the bounds of the collateral order doctrine, wheth-
er the doctrine is viewed as creating an exception to the
requirement of finality or as constituting a special form of
finality. See generally In re Sandahl, 980 F.2d 1118, 1119-21
(7th Cir. 1992) (comparing collateral order review and manda-
mus in context of order disqualifying lawyer).
Though similar, the Cohen and mandamus criteria differ
slightly. Mandamus is said to issue only upon a showing that
the petitioner's right is "clear and indisputable," Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289
(1988), and that "no other adequate means to attain the relief"
exist, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35
(1980). Cohen requires that the challenged order "conclusive-
ly determine the disputed question, resolve an important
issue completely separate from the merits of the action, and
be effectively unreviewable on appeal from a final judgment."
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). The
two clearly have one element in common: mandamus's "no
other adequate means" requirement tracks Cohen's bar on
issues effectively reviewable on ordinary appeal. But manda-
mus does not share Cohen's requirement that the issue be
separable from the merits (though this seems likely to overlap
with inadequacy of ordinary appellate review); instead, man-
damus demands an indisputable right--"clear abuse of discre-
tion or 'usurpation of judicial power.' " Bankers Life &
Casualty Co. v. Holland, 346 U.S. 379, 383 (1953) (quoting De
Beers Consolidated Mines v. United States, 325 U.S. 212, 217
(1945)). "[O]ur cases have answered the question as to the
availability of mandamus in situations such as this with the
refrain: 'What never? Well, hardly ever!' " Allied Chemi-
cal, 449 U.S. at 36 (emphasis in original). This Pinafore test
is an exacting one, but as the following discussion shows, we
think that petitioners meet it.
* * *
We first consider the availability of other means of relief.
The ordinary way for a party to obtain quick appellate review
of a discovery order is simply to disobey it. If held in
contempt, a litigant then has a final order from which he may
appeal, asserting any legal flaws in the underlying discovery
order. See, e.g., Church of Scientology of California v.
United States, 506 U.S. 9, 18 n.11 (1992) (citing United States
v. Ryan, 402 U.S. 530, 532 (1971)).
Mandamus has been recognized as an appropriate shortcut
when holding a litigant in contempt would be problematic. In
United States v. Nixon, 418 U.S. 683, 691-92 (1974), the
Court found a problem, in full measure, for discovery against
the President; it would be "unseemly" to require him to put
himself in the position of disobeying a court order, would
create an occasion for an inter-branch confrontation, and
would even raise a further question of whether the President
could be cited for contempt at all. Id. Some circuits have
extended the idea, and have been ready to grant mandamus
to vacate orders compelling the testimony of a broad range of
executive officials unless the proponent of the order could
show extraordinary circumstances. See, e.g., In re FDIC,
58 F.3d 1055, 1060 (5th Cir. 1995) (members of the FDIC's
Board of Directors); In re United States, 985 F.2d 510, 512
(11th Cir. 1993) (Commissioner of the FDA). We, however,
have indicated a great reluctance to do so. Given the unique
status of the President, see Franklin v. Massachusetts, 505
U.S. 788, 800-01 (1992),1 we have found that to stretch the
doctrine beyond him would raise severe line-drawing prob-
lems. Dealing with the FDA Commissioner, we declined
relief where he failed to offer any principled line that would
have placed him above the 350 other appointees at Executive
Level IV of the executive establishment. In re Kessler, 100
F.3d 1015, 1017-18 (D.C. Cir. 1997). We leave for another
day whether Nixon's inter-branch comity considerations
could justify use of mandamus to review orders to depose
domestic cabinet ministers, because, as we shall see, the
deposition of Greek cabinet ministers raises distinctive issues.
Another type of recognized problem sometimes justifying
mandamus has been a claim of privilege. See, e.g., Rhone-
Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 861 (3d
Cir. 1994). Disclosure followed by appeal after final judg-
ment is obviously not adequate in such cases--the cat is out
of the bag. The harder question is whether litigants assert-
ing claims of privilege may not be forced to disobey and risk
contempt--a question little addressed in the cases. Decisions
demanding more than a lack of effective reviewability at the
end of the main case have commonly asked whether the
__________
1 As so often, Churchill expressed the point most vividly, though
of course in a radically different constitutional setting:
In any sphere of action, there can be no comparison between
the positions of number one and number two, three, or
four.... The loyalties which centre upon number one are
enormous. If he trips he must be sustained. If he makes
mistakes they must be covered. If he sleeps he must not be
wantonly disturbed. If he is no good he must be pole-axed.
Winston S. Churchill, Their Finest Hour 15 (1949).
petition raises important issues. See, e.g., In re Long Island
Lighting Co., 129 F.3d 268, 270 (2d Cir. 1997); Barclaysamer-
ican Corp. v. Kane, 746 F.2d 653, 655 (10th Cir. 1984).
Again we need not take a position on the issue, because
petitioners' immunity claim has special characteristics beyond
those of ordinary privilege. The typical discovery privilege
protects only against disclosure; where a litigant refuses to
obey a discovery order, appeals a contempt order, and wins,
the privilege survives unscathed. For an immunity, this is
not good enough. "[S]overeign immunity is an immunity
from trial and the attendant burdens of litigation, and not just
a defense to liability on the merits." Foremost-McKesson,
Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir.
1990) (internal quotation omitted). The infliction of those
burdens may compromise it just as clearly as would an
ultimate determination of liability. For that reason a trial
court's denial of an immunity defense entitles the defendant
to an immediate appeal under Cohen. See, e.g., Midland
Asphalt Corp. v. United States, 489 U.S. 794, 800-01 (1989)
("[D]eprivation of the right not to be tried satisfies the ...
requirement of being 'effectively unreviewable on appeal from
a final judgment' "). The scope of jurisdictional discovery
under FSIA poses the same issue, writ slightly smaller.
Here too, we think, immediate review is appropriate.
Respondents' suggestion that the Ministers should be
forced to take the contempt route betrays a misunderstanding
of immunity or diplomacy or both. They urge that this case
is like Kessler, where we refused to allow the FDA Commis-
sioner to take an immediate appeal from a district court's
order authorizing his deposition. But Kessler did not claim
immunity from suit, and he was not the representative of a
foreign government. A contempt order offends diplomatic
niceties even if it is ultimately set aside on appeal.
Here the intervention of the Department of State rein-
forces our own sense of the demands of international comity.
In an amicus brief listing the Department's Assistant Legal
Advisor for Diplomatic Law and Litigation as "of counsel,"
the United States asserts an interest in "the sensitive diplo-
matic considerations involved," and supports petitioners'
claim. To the extent that the United States offers us legal
conclusions, they are of course no more authoritative than
those of private litigants.2 But we grant substantial weight to
the Department of State's factual estimation of the exigencies
of protocol. See, e.g., Kaczmarczyk v. INS, 933 F.2d 588, 594
(7th Cir. 1991); Environmental Tectonics v. W.S. Kirkpat-
rick, Inc., 847 F.2d 1052, 1062 (3d Cir. 1988). Because
petitioners are representatives of a foreign sovereign resist-
ing a discovery order on grounds of sovereign immunity, they
satisfy mandamus's requirement that no other adequate
means of relief be available.
* * *
The next issue is whether the district court's deposition
order constituted a "clear abuse of discretion." The Foreign
Sovereign Immunities Act provides generally that foreign
states "shall be immune from the jurisdiction of the courts of
the United States...." 28 U.S.C. s 1604. Section 1605
carves out exceptions to the rule. Relevant here are its
provisions for district court jurisdiction over civil actions
against foreign states in cases
in which the action is based [1] upon a commercial
activity carried on in the United States by the foreign
__________
2 Deference is owed the opinion of the Department of State on
some legal issues--for example, the meaning of treaty provisions it
negotiated, see, e.g., Sumitomo Shoji America, Inc. v. Avagliano,
457 U.S. 176, 184-85 (1982), or, before enactment of FSIA, the
sovereign immunity of foreign states. See, e.g., National City
Bank of New York v. Republic of China, 348 U.S. 356, 360-61
(1955); see generally Verlinden B.V. v. Central Bank of Nigeria,
461 U.S. 480, 486-88 (1983) (discussing history of sovereign immuni-
ty). We deal here not with such an issue but simply with a factual
question at the heart of the Department's expertise.
state; or [2] upon an act performed in the United States
in connection with a commercial activity of the foreign
state elsewhere; or [3] upon an act outside the territory
of the United States in connection with a commercial
activity of the foreign state elsewhere and that act causes
a direct effect in the United States....
28 U.S.C. s 1605(a)(2). The first of these exceptions is the
one principally relied on by plaintiffs in the underlying suit,
and it is seemingly broadened by another provision, 28 U.S.C.
s 1603(e), which defines "commercial activity carried on in
the United States" for these purposes as commercial activity
"having substantial contact with the United States." In
effect, then, the first exception under s 1605(a)(2) is for an
action "based upon a commercial activity carried on ... by
the foreign state [and having substantial contact with the
United States]."
Determining whether a suit falls under one of the excep-
tions of s 1605 often requires a court to look beyond the
pleadings. See Foremost-McKesson, 905 F.2d at 449. Con-
sequently, narrowly focused discovery may be permitted to
allow plaintiffs to develop the facts necessary to support
jurisdiction. See id.; see generally Oppenheimer Fund, Inc.
v. Sanders, 437 U.S. 340, 351 & n.13 (1978) (discussing
jurisdictional discovery). The district court authorized the
depositions challenged here precisely for the purpose of rul-
ing on the FSIA immunity claim.
Petitioners argue that the facts respondents seek--details
of the alleged solicitation of U.S. investors--are irrelevant to
the FSIA inquiry. Their suggestion has surface plausibility,
but turns out to be false. Respondents sue (in part) in
contract; the necessary elements of that claim are formation
of the contract and its breach. The existence of the breach,
of course, is disputed, but both sides agree that the award
and later revocation of the license took place in Greece. As
we have said, the first exception under s 1605(a)(2), once
adjusted for the impact of s 1603(e), allows an action "based
upon a commercial activity carried on ... by a foreign state
[and having substantial contact with the United States]." A
suit is "based" upon "those elements of a claim that, if proven,
would entitle a plaintiff to relief under his theory of the case."
Saudi Arabia v. Nelson, 507 U.S. 349, 357 (1993). Thus, as
the suit is "based upon" the commercial activity manifested in
the contract, the exception is available to plaintiffs only if that
commercial activity, carried on by Greece, had "substantial
contact with the United States."
We have never decided precisely what "substantial contact"
amounts to in the FSIA context, though we have said that it
requires more than the minimum contacts sufficient to satisfy
due process in establishing personal jurisdiction, and have
held that two business meetings conducted in the U.S. are not
enough. Maritime Int'l Nominees Establishment v. Guinea,
693 F.2d 1094, 1109 (D.C. Cir. 1983). And we have rejected
recruitment efforts in the U.S. as a basis for jurisdiction over
a contract for employment abroad, pointing out, ominously for
plaintiffs, that "[n]othing in the legislative history suggests
... that Congress intended jurisdiction under the first clause
to be based upon acts that are not themselves commercial
transactions, but that are merely precursors to commercial
transactions." Zedan v. Kingdom of Saudi Arabia, 849 F.2d
1511, 1513 (D.C. Cir. 1988). But our cases do not foreclose
the possibility that some degree of solicitation in the U.S.
might satisfy the "substantial contact" requirement.3 Thus
the depositions do relate to facts on which a FSIA determina-
__________
3 Our opinion in Zedan quoted with respect remarks in the
legislative history of the FSIA suggesting that the statute would
afford jurisdiction over a case based upon "indebtedness incurred
by a foreign state which ... receives financing from a private or
public lending institution located in the United States." 849 F.2d at
1513. Accordingly, we cannot share what we understand to be the
basis for Judge Henderson's separate opinion, namely the belief
that, where an action is based on "commercial activity" in the form
of a contract allegedly entered into and breached abroad, solicita-
tion activities in the United States could never supply the "substan-
tial contact" between that commercial activity and the United States
that is required by s 1603(e). Certainly we do not suggest that a
breach of contract action could be "based upon" the solicitation, or
that the U.S. solicitation constituted the commercial activity on
which the suit is based.
tion could turn.4 Cf. Nelson, 507 U.S. at 356 (leaving "sub-
stantial contact" issue open where plaintiff was recruited in
the U.S. and contracted to work abroad, and was there
subjected to alleged torts).
Relevance, however, is not enough. Because sovereign
immunity is an immunity from suit, see Foremost-McKesson,
905 F.2d at 443, a district court authorizing discovery to
determine whether immunity bars jurisdiction must proceed
with circumspection, lest the evaluation of the immunity itself
encroach unduly on the benefits the immunity was to ensure.
See, e.g., Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d
445, 451 (6th Cir. 1988). Here, the district court's procedure
fell short in two respects.
__________
4 The district court appears to have found relevance under a
different theory, one that we think places too much reliance on
Gilson v. Republic of Ireland, 682 F.2d 1022 (D.C. Cir. 1982), at the
expense of the Supreme Court's later decision in Saudi Arabia v.
Nelson, 507 U.S. 349 (1993). In Gilson we found possible jurisdic-
tion under FSIA where the plaintiff entered into a contract (formed
in the United States) with an instrumentality of Ireland and was
allegedly enticed to travel to Ireland, where various wrongs were
committed against him. See id. at 1027. We reasoned that if the
plaintiff's story were true, his claim might be based upon an act--
the enticement--"performed in the United States in connection with
a commercial activity of the foreign state elsewhere" and would thus
fall within the second exception of 28 U.S.C. s 1605(a)(2). "Section
1605's 'based upon' standard is satisfied", we said, "if plaintiff can
show a direct causal connection between his enticement in the
United States and the misappropriations in Ireland giving rise to
his claims for an accounting, or if he can show that enticement is an
element of the cause of action under whatever law governs his
claims." Id. at 1027 n.22. The district court here appeared to
authorize discovery to ascertain the causal connection between the
solicitation and the contract. But Nelson rejected Gilson's equation
of "based upon" with "causal connection," holding that a suit is
based only upon the elements of the cause of action. See 507 U.S.
at 357. Inducement is not an element of any cause of action
respondents have brought, so the solicitations at issue are not the
basis for any claim within the meaning of s 1605. We do not
consider the potential application of the third exception of s 1605.
First, oral deposition of cabinet-level officials is quite un-
usual. See Simplex Time Recorder Co. v. Sec'y of Labor, 766
F.2d 575, 586 (D.C. Cir. 1985). In Kessler, though denying
the FDA Commissioner's request for mandamus because
there was no lack of alternative adequate avenues for review
of the deposition order, we expressed no opinion on the
correctness of that order under Simplex. See 100 F.3d at
1018. Here we do express an opinion: the order in this case
was erroneous. The Ministers are the equivalent of cabinet-
level officials. Principles of comity dictate that we accord the
same respect to foreign officials as we do to our own. Thus,
absent some showing of need for oral testimony from the
Ministers, the district court erred in authorizing their deposi-
tions.
Respondents' counsel suggested at oral argument that they
had established a particular need for the Ministers' deposi-
tions, but they provided no record support. Their suggestion
that only the Ministers could provide the desired facts about
the extent of solicitation in the U.S., and only via deposition,
is at best obscure. Alternatives seem ample: depositions of
Americans who met with the visiting Greek officials or of
Greek employees of the Ministry of Tourism, or even inter-
rogatories addressed to the Ministers (to some of which the
defendants have already responded). As plaintiffs' complaint
in the original suit says that Minister Papandreou only as-
sumed the office of Minister of Tourism after the license was
issued (Complaint, p 21), it is particularly mystifying why it is
so urgent to depose her on the issue of pre-license solicita-
tions. With no findings by the district court explaining why
depositions of the Ministers are necessary, and lots of indica-
tions that they are not, we cannot possibly find--or defer to
any district court judgment that finds--exceptional need.
Second, the district court failed to explore the ease with
which other potentially dispositive jurisdictional defenses
could be evaluated. The district court postponed discovery
on these issues "in order to preserve the significance and
benefit of presumptive immunity given to the defendants
under the FSIA." Memorandum Order of September 22, 1997
at 7.
We think the primacy accorded to immunity values entirely
correct; merely deciding other issues may irreparably impair
the benefits of immunity. See, e.g., Phaneuf v. Republic of
Indonesia, 106 F.3d 302, 304-05 (9th Cir. 1997). But primacy
of immunity values need not imply priority of immunity
determination. Immunity should reduce the expenses, in
time and inconvenience, imposed on foreign sovereigns by
litigation in U.S. courts. If one (or more) of the other
jurisdictional defenses hold out the promise of being cheaply
decisive, and the defendant wants it decided first, it may well
be best to grapple with it (or them) first. It would be bizarre
if an assertion of immunity worked to increase litigation costs
via jurisdictional discovery, to the neglect of swifter routes to
dismissal.
Thus where a colorable claim of immunity is made, a trial
court should--at least if the defendant so argues--normally
consider other potentially dispositive jurisdictional defenses
before allowing FSIA discovery, with an eye towards mini-
mizing the total costs imposed on the defendant. Precise
calculation will generally be impossible, and which defense
should be decided first is a question ultimately within the
discretion of the district court. A sample decision procedure,
which captures the relevant concerns but may overstate their
arithmetic tractability, would be to eyeball each jurisdictional
defense and, for each, divide the estimated burdens of evalua-
tion by the estimated chance of success, and then evaluate the
defenses in increasing order of the corresponding quotient.5
The Greek Government Defendants have urged the district
court to consider alternate grounds for dismissal before eval-
uating the FSIA claim. They assert four defenses that either
are jurisdictional or have jurisdictional overtones: standing,
forum non conveniens, personal jurisdiction, and the act of
state doctrine. Whether a defense is "jurisdictional" is a
question of some difficulty, given the "woolliness of the
__________
5 For example, where defendant raises defense A, with a burden
of 10 and a likelihood of success of .5, and defense B, with a burden
of 15 and a likelihood of success of .8, the quotients are 10/.5 or 20
for A and 15/.8 or 18.75 for B, and the court would start with B.
concept." Cross-Sound Ferry Services v. ICC, 934 F.2d 327,
341 (D.C. Cir. 1991) (Thomas, J., concurring). But the ques-
tion is important, since resolving a merits issue while jurisdic-
tion is in doubt "carries the courts beyond the bounds of
authorized judicial action," Steel Co. v. Citizens for a Better
Environment, 1998 WL 88044 at *7 (U.S. 1998), and violates
the principle that "the first and fundamental question is that
of jurisdiction." Mansfield, Coldwater & Lake Michigan
Railway Co. v. Swan, 111 U.S. 379, 382 (1884). Thus before
leaving this area we should say a word about the classification
of these defenses.
The imperative to decide jurisdictional questions first stems
"from the nature and limits of the judicial power of the
United States." Id. "Jurisdiction is power to declare the
law," Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868),
and where jurisdiction is lacking, federal courts obviously
cannot exercise it to decide the cause of action. See Steel
Company, 1998 WL 88044, at *9; see generally Cross-Sound
Ferry, 934 F.2d at 340 (Thomas, J., concurring) ("The truistic
constraint on the federal judicial power, then, is this: A
federal court may not decide cases when it cannot decide
cases, and must determine whether it can, before it may.")
What is beyond the power of courts lacking jurisdiction is
adjudication on the merits, the act of deciding the case. See,
e.g., Steel Company, 1998 WL 88044, at *7-8, *15 (O'Connor,
J., concurring); Bors v. Preston, 111 U.S. 252, 255 (1884);
Cross-Sound Ferry, 934 F.2d at 340, 346 (Thomas, J., concur-
ring); Citizens for the Abatement of Aircraft Noise, Inc. v.
Metropolitan Washington Airports Authority, 917 F.2d 48,
53 (D.C. Cir. 1990); Rubins Contractors, Inc. v. Lumbermens
Mutual Ins. Co., 821 F.2d 671, 673 (D.C. Cir. 1987). Thus,
although subject-matter jurisdiction is special for many pur-
poses (e.g., the duty of courts to bring it up on their own), a
court that dismisses on other non-merits grounds such as
forum non conveniens and personal jurisdiction, before find-
ing subject-matter jurisdiction, makes no assumption of law-
declaring power that violates the separation of powers princi-
ples underlying Mansfield and Steel Company. Indeed, in
Steel Company the Court expressly endorsed a court's exer-
cising its discretion to decline pendent jurisdiction without
first determining whether pendent jurisdiction existed to be
declined, see 1998 WL 88044 at *10 n.3 (discussing Moor v.
County of Alameda, 411 U.S. 693, 715-16 (1973)), and a
court's dismissing on grounds of Younger abstention, which it
declared to be jurisdictional, without first deciding whether
there was a case or controversy, id. (discussing Ellis v.
Dyson, 421 U.S. 426, 436 (1975)). See also Federal Rule of
Civil Procedure 41(b) (excluding dismissals for lack of juris-
diction, improper venue, and failure to join a party under
Rule 19 from certain dismissals otherwise deemed to be on
the merits). With these considerations in mind, we turn to
the grounds asserted for dismissal.
Standing, of course, is jurisdictional. But we note that the
Greek Government Defendants' standing claim is based on
the point that plaintiff Marrecon is only a member of the
injured joint venture (and plaintiff Marra only the sole share-
holder of Marrecon), and that the rights in fact belong to the
joint venture. We express no opinion as to whether this
defense can properly be classified as standing. The defen-
dants argue that (if correct) the joint-venture point means the
court could not redress the wrong, but it is not clear that the
way in which this defense negates redressability is distinctive-
ly different from the way any good merits defense does.
Forum non conveniens does not raise a jurisdictional bar
but instead involves a deliberate abstention from the exercise
of jurisdiction. See, e.g., Burger King Corp. v. Rudzewicz,
471 U.S. 462, 478 n.20 (1985). While such abstention may
appear logically to rest on an assumption of jurisdiction, see
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (1947), it is as
merits-free as a finding of no jurisdiction. By the same
principle on which the Court has approved a discretionary
declination to exercise a pendent jurisdiction that may not
have existed, Moor v. County of Alameda, 411 U.S. 693, 715-
16 (1973), approved in Steel Company, 1998 WL 88044, at *10
n.3, it would be proper to dismiss on such grounds (if merito-
rious) without reaching the FSIA issue.6 Similarly, dismissal
for want of personal jurisdiction is independent of the merits
and does not require subject-matter jurisdiction.
Finally, we note that the Supreme Court has authoritative-
ly classified the act of state doctrine as a substantive rule of
law. W.S. Kirkpatrick & Co., Inc. v. Environmental Tecton-
ics Corp., Int'l, 493 U.S. 400, 408-10 (1990). Accordingly,
resolution of the case on this ground, before addressing the
FSIA jurisdictional issue, would exceed the district court's
power. See Steel Company, 1998 WL 88044, at *7.
Of course we express no opinion on the merits of these
alternative defenses, nor on whether determining them in
advance of FSIA immunity would impose a lesser expected
burden on the defendants in this case. Those matters are for
the district court to determine in the first instance.
Because we find the district court erred in authorizing
depositions from the Ministers without a showing of need, and
without considering possible alternate non-merits routes to
dismissal, we grant the petition for a writ of mandamus and
vacate the November 7, 1997 order authorizing the deposi-
tions. The stay previously issued by this Court expires with
the issuance of the writ.
So ordered.
__________
6 Any such forum non conveniens dismissal could not, however, be
subject to conditions, e.g., a condition that defendants promise to
submit to the jurisdiction of another court, for exaction of such a
condition would appear inescapably to constitute an exercise of
jurisdiction.
Karen LeCraft Henderson, Circuit Judge, concurring:
I concur in the majority opinion except for its suggestion
that discovery could reveal facts entitling the appellants to
invoke the first commercial activity exception in 28 U.S.C.
s 1605(a)(2).
In Janini v. Kuwait University, 43 F.3d 1534 (D.C. Cir.
1995), we held, construing Saudi Arabia v. Nelson, 507 U.S.
349 (1993), that an action for breach of an employment
contract, where the breach was caused by a decree of the
Kuwaiti Council of Ministers that automatically terminated all
contracts between the government and non-Kuwaiti citizens,
was "based upon the termination of the employment contracts
and not ... upon any pre-employment negotiations or re-
cruitment conducted in this country." 43 F.3d at 1536. I
believe Janini compels the conclusion that the breach of
contract action here is based upon the casino license revoca-
tion (which is not alleged to have occurred anywhere but in
Greece--plainly not in the United States) and not on any pre-
contractual solicitation in this country. Nor do I believe that
the license revocation on which the lawsuit is based can have
a "substantial contact with the United States," as the majori-
ty supposes, based on the pre-contractual solicitation activi-
ties, which the majority acknowledges can neither form the
basis for the transaction, Maj. Op. at 10 n.4, nor even be
characterized as " 'commercial transactions,' " id. at 9 (quot-
ing Zedan v. Kingdom of Saudi Arabia, 849 F.2d 1511, 1513
(D.C. Cir. 1988)). While it is true that "[w]e have never
decided precisely what 'substantial contact' amounts to in the
FSIA context," Maj. Op. at 9, I cannot imagine we would ever
find it attaches to a contractual breach simply by virtue of
pre-contractual solicitation.
Although I do not believe the appellants can adduce facts to
support the first section 1605(a)(2) commercial activity excep-
tion, they may be able to do so for the third exception, which
the majority found it unnecessary to consider. See Maj. Op.
at 10 n.4. If discovery reveals that the Greek government
knew its revocation would cause losses to investors in this
country, then the revocation may constitute "an act outside
the territory of the United States in connection with a
commercial activity of the foreign state elsewhere" that
"causes a direct effect in the United States," triggering the
third exception. See Callejo v. Bancomer, S.A., 764 F.2d
1101, 1112 (5th Cir. 1985) (action against Mexican bank for
breach of obligations under certificates of deposit issued to
American investors comes within third exception where bank
"engaged in a regular course of business conduct" with
investors "over a several-year period," having "called them in
the United States, mailed the certificates to them there, and
remitted payments through an American correspondent
bank"); cf. Republic of Argentina v. Weltover, Inc., 504 U.S.
607 (1992) (Argentina's rescheduling of payment dates for
bonds caused direct effect in United States within third
exception where bond payees "had designated their accounts
in New York as the place of payment, and Argentina made
some interest payments into those accounts before announc-
ing that it was rescheduling the payments").