In re: Grand Jury Subpoena

PUBLIC COPY – SEALED INFORMATION DELETED

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 14, 2018 Decided January 8, 2019

No. 18-3071

IN RE: GRAND JURY SUBPOENA

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-gj-00041)

Before: TATEL and GRIFFITH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

Opinion concurring in part and concurring in the judgment

filed by Senior Circuit Judge WILLIAMS.

PER CURIAM: * With the Foreign Sovereign Immunities Act

(the “Act”), Congress unquestionably set out a comprehensive

framework for resolving whether foreign states are entitled to

immunity in civil actions. But did Congress, through the same

Act, tell us how to handle claims for immunity in criminal cases

as well? That question looms large over this litigation

*

NOTE: Portions of this opinion contain sealed

information, which has been redacted.

2

PUBLIC COPY – SEALED INFORMATION DELETED

concerning a subpoena issued by a grand jury, but we find it

unnecessary to supply a definitive answer. Assuming the Act’s

immunity applies, we hold that it leaves intact the district

courts’ subject-matter jurisdiction over federal criminal cases

involving foreign sovereigns, and that there is a reasonable

probability the information sought through the subpoena here

concerns a commercial activity that caused a direct effect in the

United States. Because the Act—even where it applies—allows

courts to exercise jurisdiction over such activities, and because

the ancillary challenges in this appeal lack merit, we affirm the

district court’s order holding the subpoena’s target, a

corporation owned by a foreign sovereign, in contempt for

failure to comply.

I.

The grand jury seeks information from a corporation (“the

Corporation”) owned by Country A and issued a subpoena

directing the Corporation to produce that information.

The Corporation moved to

quash the subpoena, arguing that it is immune under the Act,

or, alternatively, that the subpoena is unreasonable or

oppressive (and therefore unenforceable under Federal Rule of

Criminal Procedure 17(c)(2)) because it would require the

Corporation to violate Country A’s domestic law.

The district court denied the motion to quash. The

Corporation took an immediate appeal, which an earlier panel

of this court dismissed for lack of appellate jurisdiction. Per

Curiam Order, In re Grand Jury Subpoena, No. 18-3068

(October 3, 2018). The district court then held the Corporation

in contempt, imposing a fine of $50,000 per day until the

Corporation complies with the subpoena, but stayed accrual

3

PUBLIC COPY – SEALED INFORMATION DELETED

and execution of the penalty pending appeal. The Corporation

then filed this appeal of the contempt order. Because this

appeal involves exclusively legal questions, our review is de

novo. In re Sealed Case, 146 F.3d 881, 883 (D.C. Cir. 1998)

(reviewing contempt order de novo where the district court

allegedly “applied the wrong legal standard”). In a judgment

dated December 18, 2018, we affirmed the district court and

explained that a full opinion would follow. This is that opinion.

II.

Before 1952, foreign sovereigns enjoyed “complete

immunity” in United States courts as “a matter of grace and

comity.” Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.

480, 486 (1983). First articulated in The Schooner Exchange v.

McFaddon, 11 U.S. (7 Cranch) 116 (1812), that rule was in

harmony with the then-existing “general concepts of

international practice.” Michael Wallace Gordon, Foreign

State Immunity in Commercial Transactions § 3.01 (1991).

Over the next century and a half, change slowly crept over the

horizon. “[A]s foreign states became more involved in

commercial activity,” by taking over businesses and other

historically private functions, many grew concerned that states

could manipulate their immunity to obtain market advantages

by evading accountability mechanisms that would hinder

purely private corporations. Rubin v. Islamic Republic of Iran,

138 S. Ct. 816, 821–22 (2018) (noting that the State

Department had expressed such a concern). As a result, several

countries began stripping foreign sovereigns of their former

immunity for “private,” usually commercial, acts. Letter from

Jack B. Tate, Acting Legal Adviser, Department of State, to

Acting Attorney General Philip B. Perlman (May 19, 1952),

reprinted in 26 Department of State Bulletin 984–85 (June 23,

1952) (“Tate Letter”).

4

PUBLIC COPY – SEALED INFORMATION DELETED

The United States joined this club in 1952, when the

Acting Legal Adviser to the State Department issued a letter

(known as the “Tate Letter”) adopting this so-called

“‘restrictive theory of sovereign immunity.’” Rubin, 138 S. Ct.

at 822 (quoting Verlinden, 461 U.S. at 488). The result “proved

troublesome.” Verlinden, 461 U.S. at 487. Because courts

relied “primarily” on the State Department to guide them

regarding which activities remained immune, many disputes

that were essentially private had the potential to become

spiraling diplomatic imbroglios for the administration of the

day. Id. Nobody was especially happy with the outcomes:

“inconsistent” immunity determinations heavily informed by

“‘political’” and diplomatic considerations. Samantar v.

Yousuf, 560 U.S. 305, 312–13 (2010) (quoting Republic of

Austria v. Altmann, 541 U.S. 677, 690 (2004)).

Seeking to extract the State Department from this stew and

“endorse and codify the restrictive theory of sovereign

immunity,” Congress passed the Foreign Sovereign

Immunities Act in 1976. Id. at 313. Where the Act applies, it

does three things relevant to this case: (1) as a general matter,

it extends foreign sovereigns “immun[ity] from the jurisdiction

of the courts of the United States,” 28 U.S.C. § 1604; (2) it

creates exceptions to the rule of immunity under various

circumstances, including cases based on certain “commercial

activit[ies]” of the sovereign, id. § 1605(a)(2); and (3) it grants

federal district courts subject-matter jurisdiction over certain

“nonjury civil action[s]” against foreign states where they lack

immunity, id. § 1330(a).

The key question here is whether the Act—including

section 1604’s grant of immunity—applies to civil and criminal

proceedings alike. The Corporation tells us the Act does apply

5

PUBLIC COPY – SEALED INFORMATION DELETED

here, and thereby immunizes the Corporation from this

subpoena. The government responds that no part of the Act

applies to criminal proceedings. “Immunity in criminal

matters,” the government assures us, “‘simply was not the

particular problem to which Congress was responding.’”

Appellee’s Br. 18 (quoting Samantar, 560 U.S. at 323).

The few circuits to consider this issue have reached

differing conclusions, albeit in circumstances distinct from

those here. Compare Southway v. Central Bank of Nigeria, 198

F.3d 1210, 1214 (10th Cir. 1999) (stating in context of a civil

Racketeer Influenced and Corrupt Organizations Act (“RICO”)

claim that the Act does not apply in criminal proceedings), and

United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997)

(same, in case involving head-of-state immunity claim), with

Keller v. Central Bank of Nigeria, 277 F.3d 811, 820 (6th Cir.

2002) (stating in context of civil RICO claim that the Act does

apply in criminal proceedings), partially abrogated by

Samantar, 560 U.S. 305. Mindful of our obligation to avoid

sweeping more broadly than we must to decide the case in front

of us, we need not weigh in on this dispute. As we explain

below, even assuming section 1604’s grant of immunity

applies to criminal proceedings, the Corporation still lacks

immunity from this particular subpoena.

III.

Taking section 1604’s grant of immunity as a given, the

government must check three boxes for the contempt order to

stand. First, there must be a valid grant of subject-matter

jurisdiction. Second, one of the Act’s exceptions to immunity

must apply. And third, the contempt sanctions must be a

permissible remedy. According to the district court, the

government satisfies all three. We agree.

6

PUBLIC COPY – SEALED INFORMATION DELETED

A.

We start, as we must, with subject-matter jurisdiction. The

district court purported to exercise its inherent contempt power

in aid of its criminal jurisdiction. See FG Hemisphere

Associates, LLC v. Democratic Republic of Congo, 637 F.3d

373, 377 (D.C. Cir. 2011) (explaining that “federal courts enjoy

inherent contempt power” that “runs with a court’s

jurisdiction”). The problem, according to the Corporation, is

that the Act eliminated all criminal subject-matter jurisdiction

over foreign sovereigns, taking the contempt power with it. The

text of the relevant statutes, however, cuts against the

Corporation’s position. Section 3231 of title 18 gives federal

courts original jurisdiction over “all offenses against the laws

of the United States.” It is hard to imagine a clearer textual

grant of subject-matter jurisdiction. “All” means “all”; the

provision contains no carve-out for criminal process served on

foreign defendants. And nothing in the Act’s text expressly

displaces section 3231’s jurisdictional grant. True, section

1604 grants immunity “from the jurisdiction of the courts,” but

that is no help to the Corporation. Linguistically, granting a

particular class of defendants “immunity” from jurisdiction has

no effect on the scope of the underlying jurisdiction, any more

than a vaccine conferring immunity from a virus affects the

biological properties of the virus itself.

To be sure, we have often referred to the Act’s immunity

provisions as affecting “subject matter jurisdiction.” See, e.g.,

Odhiambo v. Republic of Kenya, 764 F.3d 31, 34 (D.C. Cir.

2014). But in offering that characterization, we are not

referring to section 1604. The provision that usually gives the

exceptions to immunity their jurisdictional status is the Act’s

provision conferring subject-matter jurisdiction over foreign

7

PUBLIC COPY – SEALED INFORMATION DELETED

states in civil actions, codified at 28 U.S.C. § 1330(a). That

section authorizes jurisdiction over certain nonjury civil

actions “with respect to which the foreign state is not entitled

to immunity.” Thus, establishing that an exception to immunity

applies is one element of invoking subject-matter jurisdiction

under section 1330(a). See Verlinden, 461 U.S. at 489 (using

section 1330(a) to link the immunity exceptions to subject-

matter jurisdiction). This feature of section 1330(a) does not

transmute the entirely separate section 1604 into a provision

about subject-matter jurisdiction.

With no textual provision purporting to eliminate section

3231’s grant of subject-matter jurisdiction, the Corporation

instead focuses on section 1330(a). Although that provision by

its terms merely confers jurisdiction over an unrelated set of

civil cases, the Corporation assures us that, as with an iceberg,

much hides beneath the surface. Specifically, the Corporation

reads the provision to silently and simultaneously revoke

jurisdiction over any case not falling within its terms, including

any criminal proceeding.

Ordinarily, that argument would be a tough sell. We are

usually reluctant to view one statute as implying a limited

repeal of another where the two are capable of coexisting. See

Morton v. Mancari, 417 U.S. 535, 550 (1974) (“In the absence

of some affirmative showing of an intention to repeal, the only

permissible justification for a repeal by implication is when the

earlier and later statutes are irreconcilable.”). But the

Corporation argues this usual rule has no force in the context

of foreign sovereign immunities, citing the Supreme Court’s

statement, first appearing in Argentine Republic v. Amerada

Hess Shipping Corp., that the Act is “the sole basis for

obtaining jurisdiction over a foreign state in our courts.” 488

U.S. 428, 434 (1989).

8

PUBLIC COPY – SEALED INFORMATION DELETED

Amerada Hess was a civil action. Id. at 431. The plaintiffs

sought relief in tort from Argentina for having bombed their

neutral ship in the course of Argentina’s war with the United

Kingdom over the Falkland, or Malvinas, Islands. Id. at 431–

32. Because the Act pretty plainly granted Argentina immunity

for this essentially sovereign act, see id. at 439–43, the

plaintiffs sought to circumvent that immunity by invoking

subject-matter jurisdiction under the Alien Tort Statute, 28

U.S.C. § 1350, which unlike section 1330(a) makes no mention

of the immunity exceptions. Rebuffing that effort, the Supreme

Court concluded that founding jurisdiction on the Alien Tort

Statute—or, for that matter, any “other grant[] of subject-

matter jurisdiction in Title 28,” id. at 437 (emphasis added)—

would conflict with Congress’s choice “to deal

comprehensively with the subject of foreign sovereign

immunity in the” Act, id. at 438. To avoid that outcome, when

it comes to foreign sovereigns, the Court held that section

1330(a) precludes subject-matter jurisdiction under other, more

general grants, listing the Alien Tort Statute and a bevy of other

examples from the civil code in title 28. Id. at 437–39.

Subsequent decisions from the Supreme Court and this court

echoing that conclusion can all be traced back to Amerada

Hess. See, e.g., Saudi Arabia v. Nelson, 507 U.S. 349, 355

(1993) (quoting Amerada Hess); Schermerhorn v. State of

Israel, 876 F.3d 351, 353 (D.C. Cir 2017) (same). Neither the

Supreme Court nor this court has ever extended Amerada

Hess’s holding to a criminal proceeding.

Uncritically applying the exclusivity rule from Amerada

Hess in the criminal context would yield the conclusion the

Corporation prefers: no jurisdiction, as this grand jury

proceeding is plainly not a “nonjury civil action” covered by

section 1330(a). But even the briefest peek under the hood of

9

PUBLIC COPY – SEALED INFORMATION DELETED

Amerada Hess shows that the Supreme Court’s reasons for

finding section 1330(a) to be the exclusive basis for jurisdiction

in the civil context have no place in criminal matters.

Crucial to the Court’s logic in Amerada Hess was that the

immunity provision in section 1604 and the jurisdictional

provision in section 1330(a) would “work in tandem”—that is,

that immunity and jurisdiction would rise and fall together. 488

U.S. at 434. In its opinion, the Court gave no hint at all that it

intended to create a loophole where, in criminal cases clearly

covered by an exception to immunity, a district court would

nevertheless lack subject-matter jurisdiction. On the contrary,

the Court was chiefly concerned that exercising jurisdiction

under other provisions in title 28 would provide an end run

around the Act’s immunity provision. See Amerada Hess, 488

U.S. at 436 (“From Congress’ decision to deny immunity to

foreign states in [a certain] class of cases . . . , we draw the

plain implication that immunity is granted in those cases

involving alleged violations of international law that do not

come within one of the [Act’s] exceptions.”). There is no

danger of that evasion here: section 1604 tells us that, where

the Act applies, an action must fall within one of the listed

exceptions and says nothing about excluding criminal actions.

In fact, a reading that embraces absolute immunity in

criminal cases is much harder to reconcile with the Act’s

context and purpose. The Act’s “[f]indings and declaration of

purpose” section explains that Congress intended that states

would “not [be] immune from the jurisdiction of foreign courts

insofar as their commercial activities are concerned.” 28 U.S.C.

§ 1602; accord Rubin 138 S. Ct. at 822 (Congress sought to

hold foreign sovereigns “accountable, in certain circumstances,

for their actions”). As the Corporation admits, however, under

its reading a foreign-sovereign-owned, purely commercial

10

PUBLIC COPY – SEALED INFORMATION DELETED

enterprise operating within the United States could flagrantly

violate criminal laws and the U.S. government would be

powerless to respond save through diplomatic pressure. What’s

more, such a reading would signal to even non-sovereign

criminals that if they act through such an enterprise, the records

might well be immune from criminal subpoenas.

We doubt very much that Congress so dramatically gutted

the government’s crime-fighting toolkit. The notion is that

much harder to swallow given how unsettled the common law

of criminal immunities for a corporation owned by a foreign

state was in 1976 and remains today. See, e.g., In re

Investigation of World Arrangements, 13 F.R.D. 280, 291

(D.D.C. 1952) (suggesting the law may not recognize

immunity for a “commercial venture, entirely divorced from

any governmental function”); Andrew Dickinson, State

Immunity & State-Owned Enterprises, 10 No. 2 Bus. L. Int’l

97, 124–25 (2009) (positing that international law might allow

criminal prosecutions of “state-owned enterprises”). The lack

of reported cases—before and after the Act—considering

criminal process served on sovereign-owned corporations only

highlights this uncertainty. From that paucity, the Corporation

would have us infer that such corporations are universally

understood to possess absolute immunity, but that notion

strikes us as highly speculative. An equally likely explanation

for the absence of cases is that most companies served with

subpoenas simply comply without objection.

Faced with such uncertainty, if Congress really intended

to furnish a definitive answer to such a fraught question, one

would expect that answer to show up clearly in the Act’s text,

or at least to have been the subject of some discussion during

the legislative process. Cf. MCI Telecommunications Corp. v.

American Telephone and Telegraph Co., 512 U.S. 218, 23

11

PUBLIC COPY – SEALED INFORMATION DELETED

(1994) (holding Congress did not authorize “a fundamental

revision” of the law through a “subtle device”). Yet the “Act

and its legislative history do not say a single word about

possible criminal proceedings under the statute.” Joseph W.

Dellapenna, Suing Foreign Governments and Their

Corporations 37 (2d ed. 2003). To the contrary, the relevant

reports and hearings suggest Congress was focused, laser-like,

on the headaches born of private plaintiffs’ civil actions against

foreign states. See, e.g., H.R. Rep. No. 94-1487, at 6 (1976)

(identifying the Act’s purpose as “provid[ing] when and how

parties can maintain a lawsuit against a foreign state or its

entities in the courts of the United States”); Jurisdiction of U.S.

Courts in Suits Against Foreign States: Hearings on H.R.

11315 Before the Subcommittee on Administrative Law and

Governmental Relations of the House Committee on the

Judiciary, 94th Cong. 24 (1976) (testimony of Monroe Leigh,

Legal Adviser, Department of State) (testifying that the

“question” the Act addressed was “[h]ow, and under what

circumstances, can private persons maintain a lawsuit against a

foreign government or against a commercial enterprise owned

by a foreign government”). There is, accordingly, scant

evidence that Congress sought to resolve such a significant and

unsettled issue.

This case is thus unlike Amerada Hess. We do not read

case law with the same textual exactitude that we would bring

to bear on an Act of Congress. See Illinois v. Lidster, 540 U.S.

419, 424 (2004) (“[G]eneral language in judicial opinions”

should be read “as referring in context to circumstances similar

to the circumstances then before the Court and not referring to

quite different circumstances that the Court was not then

considering.”). Given the relevant statutes and the Supreme

Court’s reasoning, this is a situation where the Court’s earlier

statements, “[t]hough seemingly comprehensive,” do “not

12

PUBLIC COPY – SEALED INFORMATION DELETED

provide a clear answer in this case.” Altmann, 541 U.S. at 694.

Since section 3231 and the Act can coexist peacefully, we have

no trouble concluding that the Act leaves intact the district

court’s criminal jurisdiction to enforce this subpoena.

The Corporation warns us that reaching this conclusion

will create a new circuit split, based on the Sixth Circuit’s

opinion in Keller v. Central Bank of Nigeria. But we see no

conflict. Assessing whether the Act leaves room for criminal

prosecutions, the Keller court considered whether the Act itself

contains a specific exception for criminal cases. 277 F.3d at

820 (noting the Act contains no general “exception for criminal

jurisdiction”). No party drew the court’s attention to the

separate grant of subject-matter jurisdiction in section 3231,

and the Sixth Circuit has yet to squarely address whether that

provision can support jurisdiction consistent with the Act.

Accordingly, confronted with the same issue we face here, the

Sixth Circuit would be free to reach the same conclusion we

do: that section 3231 can be invoked in conjunction with the

Act.

At oral argument, the Corporation offered a new theory:

that section 3231 never authorized subject-matter jurisdiction

over criminal proceedings involving foreign sovereigns, even

before the Act. Section 3231’s text, however, contradicts that

argument, as it authorizes jurisdiction over “all offenses against

the laws of the United States.” The Corporation’s

underdeveloped position appears to rest on language from pre-

Act judicial opinions stating that, under the former regime of

complete immunity, a court lacked “jurisdiction” over a case

against a foreign sovereign. See, e.g., Schooner Exchange, 11

U.S. (7 Cranch) at 135 (warship owned by foreign sovereign is

“exempt from the jurisdiction of the country”). But those

opinions date from an era when the word “[j]urisdiction” had

13

PUBLIC COPY – SEALED INFORMATION DELETED

“many, too many, meanings.” Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 90 (1998) (internal quotation marks

omitted) (quoting United States v. Vanness, 85 F.3d 661, 663

n.2 (D.C. Cir. 1996)). In those days, the word’s more “elastic”

conception did not necessarily refer to statutory subject-matter

jurisdiction. United States v. Cotton, 535 U.S. 625, 630 (2002).

As the Supreme Court’s later cases have clarified, the doctrine

of foreign sovereign immunity that pre-dated the Act

“developed as a matter of common law,” not statutory

construction. Samantar, 560 U.S. at 311. And we know that

courts did not think the doctrine affected statutory subject-

matter jurisdiction because the immunity could be waived at

the behest of the U.S. government. Id. at 311–12. Even at that

time, a congressional limit on subject-matter jurisdiction could

not have been waived. See Louisville & Nashville Railroad Co.

v. Mottley, 211 U.S. 149, 152 (1908) (“Neither party has

questioned that jurisdiction, but it is the duty of this court to see

to it that the jurisdiction of the circuit court, which is defined

and limited by statute, is not exceeded.”). We therefore find no

merit to the Corporation’s contention that section 3231’s

historical reach excluded foreign sovereigns.

B.

Subject-matter jurisdiction is, however, just the beginning.

As we have assumed that section 1604 applies, the Corporation

is immune from the court’s criminal jurisdiction, as well as its

associated contempt power, unless one of the Act’s exceptions

applies.

Before diving into the substance of those exceptions, we

pause briefly to dispel the Corporation’s claim that section

1605(a)’s exceptions are categorically unavailable in criminal

cases. The text easily resolves this issue in the government’s

14

PUBLIC COPY – SEALED INFORMATION DELETED

favor. Section 1605(a)’s exceptions apply to “any case” that

falls within one of the listed provisions. That language—“any

case”—is notable because, as section 1330(a) demonstrates,

Congress knows how to limit a provision to a “civil action”

when it wants to. Congress’s choice to extend the section

1605(a) exceptions to “any case,” instead of just “civil

actions,” tells us that they are available in criminal

proceedings.

Moving to those exceptions, in its ex parte filing the

government steers us to the third clause of section 1605(a)(2).

That provision denies immunity in an “action . . . based . . .

upon an act outside the territory of the United States in

connection with a commercial activity of the foreign state

elsewhere [when] that act causes a direct effect in the United

States.”

Ordinarily, the Corporation would bear the burden to

establish that the exception does not apply. See EIG Energy

Fund XIV, L.P. v. Petroleo Brasileiro, S.A., 894 F.3d 339, 344–

45 (D.C. Cir. 2018) (“[T]he foreign-state defendant bears the

burden of establishing the affirmative defense of immunity,”

including “‘proving that the plaintiff’s allegations do not bring

its case within a statutory exception to immunity.’” (quoting

Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40

(D.C. Cir. 2000))). Here, however, the government relies

primarily on ex parte evidence unavailable to the Corporation.

We have repeatedly approved the use of such information when

“necessary to ensure the secrecy of ongoing grand jury

proceedings,” In re Sealed Case No. 98-3077, 151 F.3d 1059,

1075 (D.C. Cir. 1998), and we do so again here. But where the

government uses ex parte evidence, we think the burden falls

on the government to establish that the exception applies, and

we will conduct a searching inquiry of the government’s

15

PUBLIC COPY – SEALED INFORMATION DELETED

evidence and legal theories as a substitute for the adversarial

process.

Of course, at this stage, it would be putting the cart well

before the horse to require the government to definitively prove

that the factual predicates for the exception exist. The usual

rule is that the showing necessary to find an exception

applicable travels with the burden on the merits—for example,

in a motion to dismiss where a defendant challenges only the

“legal sufficiency” of the complaint, the exception must merely

be plausibly pled. Phoenix Consulting, 216 F.3d at 40. We see

no reason to depart from that rule here. As we have explained

in the personal-jurisdiction context, any other rule would risk

“‘invert[ing] the grand jury’s function’” by “‘requiring that

body to furnish answers to its questions before it could ask

them.’” In re Sealed Case, 832 F.2d 1268, 1274 (D.C. Cir.

1987) (quoting In re Grand Jury Proceedings Harrisburg

Grand Jury 79-1, 658 F .2d 211, 214 (3d Cir. 1981)). As with

personal jurisdiction, then, we ask whether the government has

shown a “‘reasonable probability’” that the exception applies.

See id. (quoting Marc Rich & Co. v. United States, 707 F.2d

663, 670 (2d Cir. 1983)).

The government’s ex parte evidence satisfactorily makes

the necessary showing.

16

PUBLIC COPY – SEALED INFORMATION DELETED

These facts establish a “reasonable probability” that

section 1605(a)(2) covers this subpoena.

All that remains, then, is to assess whether this “action”—

that is, the subpoena—is “based upon” this act—

. We think it is. In a typical case, to know

what the action is “based upon,” we look to the “‘gravamen’”

or “core” of the action—that is, “‘those elements . . . that, if

proven, would entitle [a party] to relief.’” OBB

17

PUBLIC COPY – SEALED INFORMATION DELETED

Personenverkehr AG v. Sachs, 136 S. Ct. 390, 395–96 (first

alteration in original) (quoting Saudi Arabia, 507 U.S. at 357).

The Supreme Court has offered some guidance on how to

ascertain that core, explaining that a court should “identify the

particular conduct on which the plaintiff’s action is based.” Id.

(quoting Saudi Arabia, 507 U.S. at 356) (internal quotation

marks and alterations omitted). Just how we apply this test in

the context of a subpoena is not immediately obvious. The

“gravamen” of a subpoena may be the mere fact that an entity

possesses the documents in question. Alternatively, the

“gravamen” may be related to the content of the records and

why they may be relevant to the government’s investigation.

Indeed, the correct approach may well vary with the facts of a

given case. Here, however, we need not resolve that issue,

Because the statutory elements for the exception are all

present, it makes no difference that

18

PUBLIC COPY – SEALED INFORMATION DELETED

C.

With subject-matter jurisdiction and the commercial

activity exception out of the way, we are left with the remedy.

As long as the Act permits monetary contempt sanctions,

sovereign immunity offers the Corporation no refuge. Circuit

precedent provides a clear answer: as we held in FG

Hemisphere, “contempt sanctions against a foreign sovereign

are available under the” Act. 637 F.3d at 379. In that case, we

upheld a civil contempt order against the Democratic Republic

of the Congo very similar to the one imposed here. Id. at 376

(describing penalty of “$5,000 per week, doubling every four

weeks until reaching a maximum of $80,000 per week”). We

did so by dividing “the question of a court’s power to impose

sanctions from the question of a court’s ability to enforce that

judgment through execution.” Id. at 377. We stick to that

practice today, meaning the form of the district court’s

contempt order was proper. Whether and how that order can be

enforced by execution is a question for a later day.

IV.

Alternatively, the Corporation invokes Federal Rule of

Criminal Procedure 17(c)(2), asserting the subpoena is

“unreasonable or oppressive”—and must therefore be

quashed—because it would require the Corporation to violate

Country A’s domestic law. Adhering to Federal Rule of

19

PUBLIC COPY – SEALED INFORMATION DELETED

Criminal Procedure 26.1, we treat “[i]ssues of foreign law” as

“questions of law.” But, as the party who “relies on foreign

law,” the Corporation “assumes the burden of showing that

such law prevents compliance with the court’s order.” In re

Sealed Case, 825 F.2d 494, 498 (D.C. Cir. 1987) (per curiam).

Its efforts to carry that burden fall short.

The Corporation claims that complying with the subpoena

would run afoul of Country A’s law

The text of the law favors the government.

20

PUBLIC COPY – SEALED INFORMATION DELETED

The Corporation claims that such a reading is “absurd,”

But that claim is belied by

To combat this reading of the text, in the district court and

at the briefing stage in this court, the Corporation relied on two

declarations from its retained counsel.

Pointing to the Supreme Court’s recent decision in

Animal Science Products, Inc. v. Hebei Welcome

Pharmaceutical Co., 138 S. Ct. 1865, 1873 (2018), the

Corporation urges us to “carefully consider” these declarations.

21

PUBLIC COPY – SEALED INFORMATION DELETED

Of course, we agree that the declarations warrant our

careful consideration. But we must also heed the Supreme

Court’s additional instruction in Animal Science Products to

scrutinize, when evaluating a foreign state’s position regarding

the contents of its own law, “the statement’s clarity,

thoroughness, and support; its context and purpose; . . . [and]

the role and authority of the entity or official offering the

statement.” Id. Those factors all counsel against accepting the

Corporation’s position here. The declarations are quite cursory,

and they contain no citations to authority or Country A’s case

law. Moreover, the statements come from the retained counsel

of a party with a direct stake in this litigation, and they were

plainly prepared with this particular proceeding in mind. Under

those circumstances, our careful consideration of the

declarations leads us to conclude that they shed little light on

the meaning of Country A’s law as it would be interpreted by

that nation’s courts.

Following similar criticisms from the district court and the

government, and after briefing was complete in this court, the

Corporation submitted a new declaration, this time from a

regulatory body of Country A. The government urges us to

strike this filing as untimely. Although that position is not

without merit, exercising an abundance of caution and giving

due deference to Country A’s sovereign status, we will

consider the filing.

Unfortunately for the Corporation, however, the filing fails

to cure the crucial deficiencies of the original declarations. The

new filing still fails to cite a single Country A court case

articulating the Corporation’s preferred interpretation of the

law.

22

PUBLIC COPY – SEALED INFORMATION DELETED

These omissions, combined with the fact that the

statement was clearly prepared in response to this litigation and

at a very late hour, leave us unpersuaded that the statement

accurately reflects how Country A’s courts would interpret the

relevant provision. Because the Corporation has failed to

satisfy its burden of showing that Country A’s law would

prohibit complying with the subpoena, we agree with the

district court that enforcing the subpoena is neither

unreasonable nor oppressive.

V.

Finally, the Corporation remains dissatisfied with this

court’s ruling on its first appeal. It claims that, out of respect

for its foreign sovereign status, we should not have adhered to

our usual rule requiring a contempt order before taking

appellate jurisdiction over denial of a motion to quash. Even if

we had the power to undo a prior panel’s work in some

circumstances, we could not do so here. Because the district

court has now held the Corporation in contempt, any opinion

by us on whether that procedure was necessary would be

entirely advisory. See Preiser v. Newkirk, 422 U.S. 395, 401

(1975) (“[A] federal court has neither the power to render

advisory opinions nor ‘to decide questions that cannot affect

the rights of litigants in the case before them.’” (quoting North

23

PUBLIC COPY – SEALED INFORMATION DELETED

Carolina v. Rice, 404 U.S. 244, 246 (1971))). We therefore

dismiss as moot this aspect of the Corporation’s appeal.

VI.

For the foregoing reasons, we deny the government’s

motion to strike and affirm the district court’s contempt order.

So ordered.

Senior Circuit Judge

OBB Personenverkehr AG

v. Sachs this

In re Sealed

Case abrogated on

other grounds by Braswell v. United States

Gucci Am., Inc. v. Weixing Li

ex parte

BNSF Ry. Co. v. Tyrrell

Leibovitch v. Islamic Republic

of Iran

Sealed Case

In re Grand Jury Subpoena No.

7409

any

Odhiambo v. Republic of Kenya

ex parte

id

Masias v. EPA

Schneider v. Kissinger

ex parte

ex parte

Grand Jury

Subpoena No. 7409