OI European Group BV v. Bolivarian Republic of Venezuela

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 23-1647, 23-1648, 23-1649, 23-1650, 23-1651, 23-1652,

23-1781

_____________

OI EUROPEAN GROUP B.V.

v.

BOLIVARIAN REPUBLIC OF VENEZUELA

PETROLEOS DE VENEZUELA, S.A.,

Appellant in No. 23-1647

_____________

NORTHROP GRUMMAN SHIP SYSTEMS, INC,

f/k/a Ingalls Shipbuilding, Inc.

v.

THE MINISTRY OF DEFENSE OF THE REPUBLIC OF

VENEZUELA

PETROLEOS DE VENEZUELA, S.A.,

Appellant No. 23-1648

_____________

ACL1 INVESTMENTS LTD.;

ACL2 INVESTMENTS LTD.;

LDO (CAYMAN) XVIII LTD.

v.

BOLIVARIAN REPUBLIC OF VENEZUELA

PETROLEOS DE VENEZUELA, S.A.,

Appellant No. 23-1649

_____________

RUSORO MINING LIMITED

v.

BOLIVARIAN REPUBLIC OF VENEZUELA

PETROLEOS DE VENEZUELA, S.A.,

Appellant No. 23-1650

_____________

KOCH MINERALS SARL;

KOCH NITROGEN INTERNATIONAL SARL

v.

BOLIVARIAN REPUBLIC OF VENEZUELA

PETROLEOS DE VENEZUELA, S.A.,

Appellant No. 23-1651

_____________

GOLD RESERVE INC.

v.

BOLIVARIAN REPUBLIC OF VENEZUELA

PETROLEOS DE VENEZUELA, S.A.,

Appellant No. 23-1652

_____________

OI EUROPEAN GROUP B.V.

v.

BOLIVARIAN REPUBLIC OF VENEZUELA,

Appellant No. 23-1781

2

_____________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Nos. 1-19-mc-00290, 1-20-mc-00257, 1-21-mc-00046,

1-21-mc-00481,

1-22-mc-00156, 1-22-mc-00453)

District Judge: Honorable Leonard P. Stark

_____________

Argued

June 1, 2023

_____________

Before: BIBAS, MATEY, and FREEMAN, Circuit Judges.

(Filed: July 7, 2023)

_____________

Jonathan M. Albano

Christopher L. Carter

Morgan Lewis & Bockius

One Federal Street

Boston, MA 02110

Jody C. Barillare

Morgan Lewis & Bockius

1201 N Market Street

Suite 2201

Wilmington, DE 19801

James D. Nelson

David B. Salmons [ARGUED]

3

Morgan Lewis & Bockius

1111 Pennsylvania Avenue NW

Suite 800 North

Washington, DC 20004

Counsel for Plaintiff - Appellee in Nos. 23-1647 & 23-

1781

Laura D. Jones

Peter J. Keane

Pachulski Stang Ziehl & Jones

919 N Market Street

P.O. Box 8705, 17th Floor

Wilmington, DE 19801

Robert H. Poole, II

Alston & Bird

1201 W Peachtree Street

One Atlantic Center, Suite 4900

Atlanta, GA 30309

Rajat Rana

Alexander A. Yanos

Alston & Bird

90 Park Avenue

12th Floor

New York, NY 10016

Counsel for Plaintiffs - Appellees in Nos. 23-1648 &

1651

Joshua S. Bolian

Riley & Jacobson

1906 W End Avenue

Nashville, TN 37203

4

Marie McManus Degnan

Ashby & Geddes

500 Delaware Avenue

P.O. Box 1150, 8th Floor

Wilmington, DE 19899

Counsel for Plaintiffs - Appellees in No. 23-1649

James E. Berger

DLA Piper

1251 Avenue of the Americas

27th Floor

New York, NY 10020

R. Craig Martin

DLA Piper

1201 N Market Street

Suite 2100

Wilmington, DE 19801

Counsel for Plaintiff - Appellee in No. 23-1650

Katherine G. Connolly

Norton Rose Fulbright

555 California Street

Suite 3300

Los Angeles, CA 94104

Matthew H. Kirtland

Norton Rose Fulbright

799 9th Street NW

Suite 1000

Washington, DC 20001

5

Kevin J. Mangan

Stephanie S. Riley

Matthew P. Ward

Womble Bond Dickinson

1313 N Market Street

Suite 1200

Wilmington, DE 19801

Counsel for Plaintiff - Appellee in No. 23-1652

Aubre Dean

Kevin A. Meehan

Juan O. Perla

Joseph D. Pizzurro

Allesandra D. Tyler

Curtis Mallet-Prevost Colt & Mosle

101 Park Avenue

34th floor

New York, NY 10178

Counsel for Intervenor - Appellant Petroleos de

Venezuela, S.A. in Nos. 23-1647, 23-1648, 23-1649, 23-

1650, 23-1651, 23-1652, 23-1781

Ginger D. Anders

Kathleen A. Foley

Elaine J. Goldenberg

Donald B. Verrilli, Jr. [ARGUED]

Sarah Weiner

Munger Tolles & Olson

601 Massachusetts Avenue NW

Suite 500e

Washington, DC 20001

Counsel for Defendant - Appellee Bolivarian Republic

of Venezuela in Nos. 23-1647, 23-1648, 23-1649, 23-

6

1650, 23-1651, 23-1652, 23-1781

Miguel A. Estrada

Matthew S. Rozen

Lucas C. Townsend

Gibson Dunn & Crutcher

1050 Connecticut Avenue NW

Suite 300

Washington, DC 20036

Rahim Moloo

Jason W. Myatt

Robert L. Weigel

Gibson Dunn & Crutcher

200 Park Avenue

47th Floor

New York, NY 10166

Counsel Amicus Curiae Crystallex International Corp

in Nos. 23-1647, 23-1648, 23-1649, 23-1650, 23-1651,

23-1652, 23-1781

___________

OPINION OF THE COURT

____________

MATEY, Circuit Judge.

Sovereignty shoulders “[t]hat power . . . whose actions

are not subject to the controul of any other power, so as to be

annulled at the pleasure of any other human will.” Hugo

Grotius, The Rights of War and Peace 62 (A.C. Campbell

7

trans., M. Walter Dunne 1901) (1625).1 It is a recognition of

authority long thought essential for the mutual flourishing of

states and “the advantage of their affairs.” Emer de Vattel, The

Law of Nations 17 (Béla Kapossy & Richard Whatmore eds.,

2008) (1758). Congress codified its understanding of foreign

sovereignty in the Foreign Sovereign Immunities Act of 1976

(“FSIA”).

In this consolidated appeal, six judgment creditors of

the Bolivarian Republic of Venezuela hope to attach property

held by Petróleos de Venezuela, S.A. (“PDVSA”),

Venezuela’s national oil company. It all arises from a long-

running dispute. Four years ago, this Court wrote the most

recent chapter, holding PDVSA operated as Venezuela’s alter

ego and allowing a judgment creditor (Crystallex International

Corporation) to attach PDVSA’s shares in a U.S. subsidiary.

Our six creditors2 followed in those footsteps and registered

1

Sovereignty was widely understood as a necessary

extension of the natural law. See, e.g., Thirty Hogsheads of

Sugar v. Boyle, 13 U.S. (9 Cranch) 191, 198 (1815) (“The law

of nations” is learned through “resort to the great principles of

reason and justice.”). In the twentieth century, sovereignty slid

more to matters of political and commercial concerns. See, e.g.,

George K. Foster, When Commercial Meets Sovereign: A New

Paradigm for Applying the Foreign Sovereign Immunities Act

in Crossover Cases, 52 Hous. L. Rev. 361, 369–72 (2014).

2

OI European Group B.V. (“OIEG”); ACL1

Investments Ltd., ACL2 Investments Ltd., and LDO (Cayman)

XVIII Ltd.; Gold Reserve Inc.; Koch Minerals Sàrl and Koch

Nitrogen International Sàrl; Northrop Grumman Ship Systems,

Incorporated, formerly known as Ingalls Shipbuilding,

8

their arbitration awards against Venezuela in the District of

Delaware, seeking a writ of attachment against PDVSA’s

holdings. PDVSA resisted, arguing that changes in

Venezuela’s government destroyed the factual foundations

supporting our prior alter-ego decision. But even accounting

for those differences, the District Court correctly concluded

that PDVSA remains the alter ego of Venezuela. And because

reviewing PDVSA’s other arguments would stretch the limited

grant of our appellate jurisdiction well beyond the words

written by Congress, we decline the invitation and will affirm

the District Court’s judgment.

I.

Venezuela boasts the “largest proven oil reserves in the

world,” a stockpile long under the “significant control” of the

state. App. 30 (citations omitted). Venezuela formed PDVSA

in 1975 to exploit those resources, but this case has little to do

with oil. It centers on Venezuela’s expropriation of glass

containers and mining interests, missed payments for warship

repairs, and bond defaults. And it continues a story we recently

summarized in the parallel suit brought by Crystallex

International Corporation against Venezuela over the

expropriation of gold deposits. We begin with an even shorter

summary.

A.

In 2011, Venezuela nationalized several gold mines and

seize the surrounding factories without compensation. That,

Crystallex alleged, breached its agreement with Venezuela for

Incorporated; and Rusoro Mining Limited. Together, we refer

to them as “Creditors.”

9

development rights. See Crystallex Int’l Corp. v. Bolivarian

Republic of Venezuela, 333 F. Supp. 3d 380, 386 (D. Del.

2018) (“Crystallex I”). Crystallex won relief in an international

arbitral tribunal, which awarded $1.2 billion plus interest. Id.

The District Court for the District of Columbia confirmed the

award, yielding a federal judgment. Crystallex Int’l Corp. v.

Bolivarian Republic of Venezuela, 244 F. Supp. 3d 100, 122

(D.D.C. 2017). When Venezuela did not pay, Crystallex

registered its judgment with the Delaware District Court under

28 U.S.C. § 19633 hoping to access the assets of PDVSA.

Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela, 932

F.3d 126, 136 (3d Cir. 2019) (“Crystallex II”). Crystallex

argued that, as a judgment creditor of Venezuela, it could look

to PDVSA for satisfaction because PDVSA “is so extensively

controlled by” Venezuela that it may be held liable for the

government’s shortcomings. Id. at 140 (citations omitted). So

Crystallex sued Venezuela4 to attach PDVSA’s shares in

Petróleos de Venezuela Holding, Inc. (“PDVH”), PDVSA’s

wholly owned United States subsidiary, under Federal Rule of

Civil Procedure 69(a). Id. at 132–34. Doing so, Crystallex

thought, would ultimately allow it to reach funds in CITGO

Petroleum Corporation, a Delaware corporation indirectly

3

Stating that a registered judgment “shall have the same

effect as a judgment of the district court of the district where

registered and may be enforced in like manner.”

4

Federal courts have jurisdiction “to confirm an award

made pursuant to . . . an agreement to arbitrate, if [] the

arbitration takes place or is intended to take place in the United

States.” 28 U.S.C. § 1605(a)(6). Crystallex’s arbitration

proceedings against Venezuela occurred before the

International Centre for Settlement of Investment Disputes in

Washington, D.C. Crystallex I, 333 F. Supp. 3d at 386.

10

owned by PDVH.5 See Crystallex I, 333 F. Supp. 3d at 418

n.36.

PDVSA intervened in the attachment proceeding and

moved to dismiss based on its claim to sovereign immunity.

Crystallex II, 932 F.3d at 134. The District Court denied the

motion, finding PDVSA was Venezuela’s “alter ego” under the

principles outlined in First National City Bank v. Banco Para

El Comercio Exterior de Cuba, 462 U.S. 611 (1983)

(“Bancec”). See Crystallex I, 333 F. Supp. 3d at 404–14. That

finding made PDVSA’s property subject to execution to satisfy

Venezuela’s debt. Id. at 416–17.

We affirmed that decision. See Crystallex II, 932 F.3d

at 150–51. We pointed to Venezuela’s economic control over

and profit-sharing with PDVSA, its heavy hand in managing

PDVSA’s affairs, the value extracted from PDVSA, and the

ability to avoid obligations in U.S. courts by retaining a

separate identity. Id. at 146–49. All enough, we concluded, to

show that PDVSA was Venezuela’s alter ego. Id. at 152

(“Indeed, if the relationship between Venezuela and PDVSA

cannot satisfy the Supreme Court’s extensive-control

requirement, we know nothing that can.”). And we likewise

affirmed the order permitting attachment of PDVSA’s shares

under the FSIA. Id.

5

PDVSA wholly owns the Delaware corporation

PDVH, which wholly owns CITGO Holding, Inc., which

wholly owns CITGO Petroleum Corporation. Crystallex I, 333

F. Supp. 3d at 418 n.36.

11

B.

Hoping to seize on Crystallex’s success, Creditors also

obtained arbitration awards against Venezuela and

Venezuela’s Ministry of Defense over debts incurred under

broken contracts. Creditors then confirmed their arbitration

awards in U.S. courts, registered those judgments with the

Delaware District Court pursuant to 28 U.S.C. § 1963, and

moved for writs of attachment on PDVSA’s shares of PDVH.6

PDVSA intervened, stressing changes in the relationship

between Venezuela and PDVSA since 2019.

In 2018, Venezuelan President Nicolás Maduro

disqualified opposition candidates for the presidency and

declared himself the victor. Dissatisfied, the National

Assembly named opposition leader Juan Guaidó Interim

President of Venezuela. In 2019, the U.S. Government

recognized Guaidó as Interim President and explicitly

withdrew recognition of the Maduro Government, although it

acknowledged Maduro’s continued power in Venezuela. See

Jiménez v. Palacios, 250 A.3d 814, 822 (Del. Ch. 2019). In

2019, Guaidó took control of the shares of PDVH, appointing

an ad hoc board of directors of PDVSA to manage the U.S.

subsidiaries. Guaidó remained Interim President for the rest of

the time period relevant to this appeal.

Despite those changes, the Delaware District Court

granted Creditors’ motion, concluding they had rebutted the

presumption that Venezuela and PDVSA are separate and

established PDVSA as the alter ego of Venezuela subject to the

6

As in the Crystallex proceedings, the District Court

had jurisdiction under the FSIA. See Crystallex Int’l Corp., 244

F. Supp. 3d at 109 (applying 28 U.S.C. § 1605(a)(6)).

12

jurisdiction of the federal courts. Organizing its factual

findings around the Bancec factors discussed below, the

Delaware District Court comprehensively described PDVSA’s

relationship to Venezuela—considering both the Guaidó

Government’s control over PDVSA’s U.S. assets through its

ad hoc administrative board (“Ad Hoc Board”) and the Maduro

Regime’s ongoing control of PDVSA in Venezuela and

abroad—and concluded PDVSA remains an alter ego of

Venezuela. The Delaware District Court also “incorporate[d]

by reference its analysis of the legal standards governing the

issuance of writs of attachment (including its discussion of

Federal Rule of Civil Procedure 69(a)(1) and 10 Del. C. §

5031) with respect to property of an agency or instrumentality

of a foreign sovereign as set out in Crystallex I.” App. 62

(citing Crystallex I, 333 F. Supp. 3d at 388–89, 394–95, 399–

401, 404–05).

PDVSA appealed (and Venezuela intervened),7

challenging the alter-ego finding and asking us to consider the

attachment issue under a theory of “pendent appellate

jurisdiction.” PDVSA also asked for an emergency stay on

both divestiture grounds and the traditional discretionary stay

factors. After granting an administrative stay, we ordered

merits briefing on an expedited schedule. Agreeing with the

District Court’s well-reasoned opinion and declining to reach

the attachment issue, we will affirm.8

7

In one of the OIEG matters, Venezuela appealed and

PDVSA intervened.

8

The District Court had subject matter jurisdiction

under 28 U.S.C. § 1963, and we discuss our jurisdiction under

the collateral order doctrine in Section IV. “We review

questions of law de novo and findings of fact for clear error,

13

II.

We review a narrow question: Did the District Court

properly deny PDVSA immunity? The FSIA permitted the

District Court to exercise jurisdiction over Venezuela to

enforce a judgment based on confirmed arbitration awards

against the country.9 And “so long as PDVSA is Venezuela’s

alter ego under Bancec, the District Court had the power to

issue a writ of attachment on that entity’s non-immune assets

to satisfy the judgment against the country.” Crystallex II, 932

F.3d at 139. Although PDVSA points to some changes in the

and we review de novo the ultimate determination whether to

treat PDVSA as Venezuela’s alter ego.” Crystallex II, 932 F.3d

at 136.

9

The FSIA’s arbitration exception provides that “[a]

foreign state shall not be immune . . . in any case . . . in which

the action is brought . . . to confirm an award made pursuant

to . . . an agreement to arbitrate, if . . . the arbitration takes

place or is intended to take place in the United States.” 28

U.S.C. § 1605(a)(6).

Creditors confirmed their arbitration awards in United

States courts. They then registered their judgments in Delaware

District Court. And “when a party establishes that an exception

to sovereign immunity applies in a merits action that results in

a federal judgment—here, the exception for confirming

arbitration awards, 28 U.S.C. § 1605(a)(6)—that party does

not need to establish yet another exception when it registers the

judgment in another district court under 28 U.S.C. § 1963 and

seeks enforcement in that court. Rather, the exception in the

merits action sustains the court’s jurisdiction through

proceedings to aid collection of a money judgment rendered in

the case.” Crystallex II, 932 F.3d at 137 (cleaned up).

14

structure of Venezuela’s government, the nature of the nation’s

continued involvement in PDVSA’s affairs again establishes

that PDVSA is Venezuela’s alter ego, as will be discussed in

Section III. But first, we explain the nature of our examination.

A.

Enacted in 1976, the FSIA specifies when United States

courts will recognize claims of sovereign immunity. Our

interpretation of the text must give effect to the legislature’s

charge, Brown v. Barry, 3 U.S. (3 Dall.) 365, 367 (1797), stated

through the “ordinary meaning . . . at the time Congress

enacted the statute,” Perrin v. United States, 444 U.S. 37, 42

(1979). Because interpretation “is a holistic endeavor,” United

Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd.,

484 U.S. 365, 371 (1988), some context is key to

understanding Congress’s aim, see Felix Frankfurter, Some

Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527,

538–39 (1947) (Legislation “seeks to obviate some mischief,

to supply an inadequacy, to effect a change of policy, to

formulate a plan of government.”); see also 1 William

Blackstone, Commentaries *61, *87 (George Sharswood ed.,

1893) (1765).

The traditional understanding that foreign nations

enjoyed “absolute independence” from federal jurisdiction,

see, e.g., Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch)

116, 137 (1812), gave way to a restrictive theory of immunity

as nations became more commercially interconnected, see

George K. Foster, When Commercial Meets Sovereign: A New

Paradigm for Applying the Foreign Sovereign Immunities Act

in Crossover Cases, 52 Hous. L. Rev. 361, 369–72 (2014).

Applying this restrictive theory, the Executive determined

case-by-case whether a foreign nation would receive sovereign

15

immunity from suits in U.S. courts. See Letter from Jack B.

Tate, Legal Adviser, Dep’t of State, to Philip B. Perlman,

Acting Att’y Gen. (May 19, 1952), reprinted in 26 Dep’t St.

Bull. 984, 984–85 (1952) (“Tate Letter”). But doing so proved

difficult diplomatically and politically problematic for two

reasons. First, the Executive’s determinations were

standardless and unpredictable. See Victory Transp., Inc. v.

Comisaria General de Abastecimientos y Transportes, 336

F.2d 354, 359 (2d Cir. 1964) (“[T]he ‘Tate letter’ offers no

guide-lines or criteria for differentiating between a sovereign’s

private and public acts.”). Second, “foreign expropriation of

American investment was a major foreign policy issue”

because “major properties were seized without compensation”

in countries like Cuba that went through critical regime

changes. See Mark B. Feldman, A Drafter’s Interpretation of

the FSIA, Am. Bar Ass’n Section of Int’l Law (Winter 2018),

https://www.foster.com/assets/htmldocuments/pdfs/ABA-

ACHL-Newsletter-Winter-2018.pdf. Victims of these

expropriations generally “had to rely on the State Department

to negotiate settlement with the foreign government,” but

changing regimes and charged relations often left the State

Department with no leverage and the victims no relief. See

Expert Witness Report and Opinion of Mark B. Feldman in

Supp. of Pl.’s Opp’n to Defs.’ Mot. Dismiss, In Re: Mezerhane

v. Republica Bolivariana de Venezuela, No. 1:11-cv-23983

(S.D. Fla. 2013) (“Feldman Report”), ECF No. 90-2.

So the Executive asked Congress to make the matter a

judicial determination, reasoning “that courts are better

equipped than the State Department to make immunity

decisions based on law rather than politics.” Adam S. Chilton

& Christopher A. Whytock, Foreign Sovereign Immunity and

Comparative Institutional Competence, 163 U. Pa. L. Rev.

16

411, 412 (2015). Congress agreed, adopting the FSIA to charge

judges, not diplomats, with applying the restrictive theory of

foreign immunity.10 See Samantar v. Yousuf, 560 U.S. 305, 313

(2010). Now, if a state, or its agency or instrumentality,

“expropriate[s] . . . property in violation of international law,”

“the state can expect to be held accountable for the

expropriation in U.S. courts.” See Feldman Report, supra.

B.

The FSIA provides that foreign states are immune from

the jurisdiction of American courts, subject only to exceptions

in previous international agreements and the FSIA itself. See

28 U.S.C. § 1604. “Foreign state” is defined to include a

political subdivision “or an agency or instrumentality of a

foreign state.” Id. § 1603(a) (emphasis added).11 PDVSA

10

See Foster, supra, at 371–72; see also Letter from

Robert S. Ingersoll, Deputy Sec’y of State, and Harold R.

Tyler, Jr., Deputy Att’y Gen., to Carl O. Albert, Speaker of the

House (Oct. 31, 1975), reprinted in H.R. Rep. No. 94-1487, at

6634 (1976) (arguing for legislation governing foreign

sovereign immunity “to facilitate and depoliticize litigation

against foreign states” by “codify[ing] and refin[ing] the

‘restrictive theory’ of sovereign immunity”).

11

An “agency or instrumentality of a foreign state” is

defined as “any entity”:

(1) which is a separate legal person, corporate or

otherwise, and

(2) which is an organ of a foreign state or

political subdivision thereof, or a majority of

whose shares or other ownership interest is

owned by a foreign state or political subdivision

thereof, and

17

invokes this definition to claim sovereign immunity as an

instrumentality of a foreign state. But if a foreign

instrumentality’s entitlement to sovereign immunity depends

on its shared identity with the “foreign state” itself, a natural

reading of the FSIA would suggest that a foreign

instrumentality shares the immunity of its sovereign owner. Cf.

Roger O’Keefe, The Restatement of Foreign Sovereign

Immunity: Tutto Il Mondo è Paese, 32 Eur. J. Int’l L. 1483,

1488–90 (2021) (considering how instrumentalities

“assimilate” to the legal personality of a foreign state under the

FSIA). Meaning a determination that a foreign state is excepted

from jurisdictional immunity under § 1605(a)(6) would also

apply to its instrumentalities.

The Supreme Court rejected this reading in Bancec. See

462 U.S. at 621. Although the Court acknowledged that

§ 1603(a) defines a “foreign state” to include instrumentalities,

id. at 620 n.7, it concluded “[t]he language and history of the

FSIA clearly establish that the Act was not intended to affect

the substantive law determining the liability of a foreign state

or instrumentality, or the attribution of liability among

instrumentalities of a foreign state,” id. at 620. So it directed

courts to apply a “presumption” of independent legal status

(and thus a separate sovereign immunity) to foreign

instrumentalities. Id. at 628.

(3) which is neither a citizen of a State of the

United States as defined in section 1332(c) and

(e) of this title, nor created under the laws of any

third country.

28 U.S.C. § 1603(b).

18

That new presumption fused the law of corporations and

nations.12 The Court observed that foreign states had started

adopting the corporate practice of creating instrumentalities to

enjoy benefits associated with independent governance. Id. at

624. Without a presumption that an instrumentality’s assets

and liabilities stand separate from those of the sovereign, third

parties might worry that credit extended to an instrumentality

will be freely diverted to satisfy its sovereign’s debts. Id. at

625–26. And without “[d]ue respect for the actions taken by

foreign sovereigns and for principles of comity between

nations,” foreign sovereigns might leave opportunities to

advance their unique interests, frustrating the very point of

sovereign power. Id. at 626.13

But like any presumption, this one can be rebutted. The

Court “suggested that liability [for instrumentalities] would be

warranted, for example, ‘where a corporate entity is so

extensively controlled by [the state] that a relationship of

principal and agent is created,’ or where recognizing the state

12

At least one recent scholar has criticized this fusion,

emphasizing the differences between private and public

corporations when evaluating separate legal status. See

generally W. Mark C. Weidemaier, Piercing the (Sovereign)

Veil: The Role of Limited Liability in State-Owned Enterprises,

46 B.Y.U. L. Rev. 795 (2021).

13

As was common at the time, the Court also quoted a

House Report stating that 28 U.S.C. § 1610(b) would not allow

execution against the property of one agency or instrumentality

to satisfy the judgment of another—unless a court finds that

“property held by one agency is really the property of another.”

Bancec, 462 U.S. at 628 (quoting H.R. Rep. No. 94-1487, at

29–30).

19

and its agency or instrumentality as distinct entities ‘would

work fraud or injustice.’” Rubin v. Islamic Republic of Iran,

138 S. Ct. 816, 822 (2018) (quoting Bancec, 462 U.S. at 629–

30). And ever since, federal courts have coalesced around five

factors (termed “the Bancec factors”) to aid their analysis. Id.

at 823.14

As we did in Crystallex II, 932 F.3d at 141, we consider

the Bancec factors described in Rubin and 28 U.S.C. § 1610(g).

But we also take seriously the Supreme Court’s caution that

Bancec wrote no “mechanical formula” for disregarding

juridical separateness. Rubin, 138 S. Ct. at 822 (quoting

Bancec, 462 U.S. at 633). The test instead derives from a rough

analogy to American corporate law veil piercing,15 which is

14

Congress also noticed these factors and listed them in

an amendment to the FSIA to abrogate Bancec in disputes

about the property of state sponsors of terrorism. Rubin, 138 S.

Ct. at 823 (citing 28 U.S.C. § 1610(g)).

15

American corporations received staunch protections

through incorporation statutes passed throughout the

nineteenth century. See, e.g., An Act Relative to Incorporations

for Manufacturing Purposes, ch. 67, § 3, 1811 N.Y. Laws 350,

351. Courts met abuses of the corporate form by disregarding

these protections according to equitable considerations. See,

e.g., Booth v. Bunce, 33 N.Y. 139, 157 (1865) (If “corporate

bodies” are used “to cover up fraud,” they “are declared

nullities; they are a perfect dead letter; the law looks upon them

as if they had never been executed.”). When nations started

acting like corporations in their commercial relations,

governments began analyzing sovereign immunity claims

through this corporate lens. Cf. Chilton & Whytock, supra, at

451 (“[T]he prevailing legal standard did indeed systematically

20

itself “enveloped in the mists of metaphor.” Bancec, 462 U.S.

at 623 (quoting Berkey v. Third Ave. Ry. Co., 244 N.Y. 84, 94

(1926)). “Metaphors in law are to be narrowly watched, for

starting as devices to liberate thought, they end often by

enslaving it.” Id. (quoting Berkey, 244 N.Y. at 94).

C.

Having surveyed the “why” and “how” behind

instrumentality sovereignty, we turn to the “what”: the facts

that should be considered. The District Court evaluated the

actions of both the Guaidó and Maduro governments.

Appellants’ arguments against this approach mostly skip

references to the state and instead stress the word

“government,” a term absent from the relevant FSIA

provisions. Venezuela calls PDVSA’s relationship to the

Maduro Regime “[i]rrelevant,” Venezuela Reply Br. 12, and

insists we look only to the actions taken by the Guaidó

Government and the Ad Hoc Board. We disagree. Text,

tradition, and legislative aim all point to the sovereign nation

of Venezuela as the operative comparator for our alter-ego

analysis. So we must consider the actions of both governments.

1.

First, the text. The FSIA codifies foreign sovereign

immunity for a “foreign state,” 28 U.S.C. § 1604, which “on

its face indicates a body politic that governs a particular

influence the State Department’s immunity decisions:

immunity was less likely when the foreign state was a

corporate entity (and thus presumably engaged in commercial

activity).”). The Supreme Court followed that path in Bancec.

21

territory,” Samantar, 560 U.S. at 314.16 One prominent legal

dictionary defines “foreign state” as a “foreign country.”

Foreign State, Black’s Law Dictionary (11th ed. 2019). And

the definition has remained largely unchanged since before the

FSIA’s passage. See Foreign State, Black’s Law Dictionary

1578 (4th ed. 1968) (defining a “foreign state” as a “foreign

country or nation”). Both entries stress the body politic—the

country or nation—rather than the regime presently in power.

That aligns with the common understanding of statehood,

where governance is just one of several criteria used to define

a state. See James Crawford, The Creation of States in

International Law 45–46 (2d ed. 2006) (describing the

“classical criteria for statehood” as a defined territory, a

permanent population, an effective government, the capacity to

enter into relations with other States, and independence);

Restatement (Third) of Foreign Relations Law § 201 (1987)

(“[A] state is an entity that has a defined territory and a

permanent population, under the control of its own

government, and that engages in, or has the capacity to engage

in, formal relations with other such entities.”).

It also follows Bancec, where, despite the facts flowing

from the aftermath of the Cuban Revolution, the Supreme

Court never mentioned the Castro Regime. Instead, it framed

its analysis as determining whether the government

instrumentality of Cuba “may be held liable for actions taken

by the sovereign.” Bancec, 462 U.S. at 621. Strong evidence

that the relevant “government” in a Bancec analysis is the

16

The FSIA does not expressly define “foreign state,”

except to say that it includes “an agency or instrumentality of

a foreign state.” 28 U.S.C. § 1603(a).

22

foreign country’s sovereign, which transcends any

administrator.

2.

Second, tradition, which accepted that the “sovereign

power” does not change “whatever appearance the outward

form and administration of the government may put on.” 1

Blackstone, Commentaries *49. The Supreme Court has long

embraced this differentiation between government

representatives and a sovereign. Take The Sapphire, where

French officials sued in a United States court for damages

caused in a collision between a French and American ship. 78

U.S. (11 Wall.) 164, 167 (1870). Defendants sought dismissal,

arguing the collision happened under the reign of Napoleon III,

who had just been deposed. Id. at 166. That was the wrong

focus, the Court explained, because the “[t]he foreign state is

the true and real owner of its public vessels of war. . . . The . . .

party in power[] is but the agent and representative of the

national sovereignty. A change in such representative works no

change in the national sovereignty or its rights.” Id. at 168.

Or consider Guaranty Trust Co. of New York v. United

States, where the Soviet Union sued to recover a bank deposit

made sixteen years earlier by the Provisional Government of

Russia. 304 U.S. 126, 129 (1938). All agreed that the Soviet

Government had only recently been recognized by the United

States, making this action one of the first for which its

representatives could appear in U.S. courts on behalf of Russia.

Id. at 138 n.4. Not enough to toll a six-year statute of

limitations, said the Court, because, regardless of which

representatives are recognized, the “the rights of a sovereign

state are vested in the state rather than in any particular

government which may purport to represent it.” Id. at 137.

23

More recently, in Samantar, the Supreme Court

confirmed the continuing importance of the representative-

sovereign distinction. There, the Court held an individual

foreign official is not entitled to sovereign immunity as a

“foreign state” under the FSIA. 560 U.S. at 308. A “state” is

“an entity that has a defined territory and population under the

control of a government and that engages in foreign relations.”

Id. at 314 (quoting Restatement (Second) of Foreign Relations

Law of the United States § 4 (1964–1965)). While the

government controls the state, the state is more than its

government. See id. (“[T]he [FSIA] establishes that ‘foreign

state’ has a broader meaning, by mandating the inclusion of the

state’s political subdivisions, agencies, and

instrumentalities.”).

Now, as before, “[r]ulers come and go; governments

end and forms of government change; but sovereignty

survives.” United States v. Curtiss–Wright Export Corp., 299

U.S. 304, 316 (1936).

3.

Third, legislative aim as informed by history. An

essential tool of statutory construction that uncovers 1) “how

the common law stood at the making of the act”; 2) “what the

mischief was, for which the common law did not provide”; and

3) “what remedy the [legislature] provided to cure this

mischief.” 1 Blackstone, Commentaries *87. All “to suppress

the mischief and advance the remedy.” Id. As recounted, the

FSIA was enacted against the common law of foreign

sovereign immunity that included Executive determinations.

But Congress understood the State Department to have “sought

and supported the elimination of its role with respect to claims

against foreign states and their agencies or instrumentalities.”

24

Samantar, 560 U.S. at 323 n.19. For this Court to hold that the

decisions about sovereign immunity from suit are once again

an Executive prerogative—whether by importing the act of

state doctrine, the political question doctrine, or some other

“doctrine”—would undermine the principal purpose of the

FSIA: “to transfer primary responsibility for deciding ‘claims

of foreign states to immunity’ from the State Department to the

courts.” Id. at 313 (quoting 28 U.S.C. § 1602).

D.

Knowing what facts to consider—the actions of both the

Guaidó and Maduro governments as the totality of the

sovereign conduct of Venezuela—similarly answers the

“when” issue. The parties present dueling interpretations of the

relevant timeframe for considering Venezuela’s actions. We

did not resolve the issue in Crystallex II. See 932 F.3d at 144.

On remand, the District Court thought it improper to consider

any date after the service of the writ of attachment but

acknowledged that consideration of historical events may be

necessary for alter-ego analysis. Crystallex Int’l Corp. v.

Bolivarian Republic of Venezuela, 2021 WL 129803, at *6 &

n.4 (D. Del. Jan. 14, 2021). PDVSA and Venezuela argue that

the relevant inquiry begins the moment of the filing of the

25

motion for a writ of attachment,17 while Creditors ask us to

consider instead the time of the injury.18

We again decline to take either path. As with the

commercial activity determination, “narrowing the temporal

17

Venezuela cites Dole Food Co. v. Patrickson, which

held that, for federal removal jurisdiction, “instrumentality

status is determined at the time of the filing of the complaint.”

538 U.S. 468, 480 (2003). But removal is a time-specific

inquiry, so there is no reason to assume that holding extends to

all other parts of the FSIA.

18

Creditors offer mostly out-of-circuit or unpublished

decisions for the notion that we look to the time the injury

occurred. None address the alter ego concept or thoroughly

compare competing time periods. See, e.g., Groden v. N&D

Transp. Co., 866 F.3d 22, 30 (1st Cir. 2017) (discussing the

“pertinent” time in an alter ego ERISA case as the time “when

the withdrawal liability arose”); Energy Marine Servs., Inc. v.

DB Mobility Logistics AG, No. 15-24-GMS, 2016 WL 284432,

at *1, *3 (D. Del. Jan. 22, 2016) (stating the moment of injury

is “the relevant time frame” with no justification); Trs. of Nat’l

Elevator Indus. Pension v. Lutyk, 140 F. Supp. 2d 447, 457

(E.D. Pa. 2001) (mentioning that “the relevant time period is

the time at which the corporation incurred liability” in a

corporate veil case), aff’d, 332 F.3d 188 (3d Cir. 2003) (no

discussion of time frame); J.M. Thompson Co. v. Doral Mfg.

Co., 324 S.E. 2d 909, 915 (N.C. Ct. App. 1985) (stating in a

corporate alter ego case, “it must be shown that control was

exercised at the time the acts complained of transpired”);

Moran v. Johns-Manville Sales Corp., 691 F.2d 811, 817 (6th

Cir. 1982) (“It is agency at the time of the tortious act, not at

the time of litigation, that determines the corporation’s

26

inquiry” for alter-ego analysis “unnecessarily leaves room for

manipulation.” See Crystallex II, 932 F.3d at 150. We would

invite fraud and injustice—the very concerns carefully

cautioned against in Bancec—by considering only how a state

acts after learning that its actions surrounding an

instrumentality are under scrutiny. Cf. Transamerica Leasing,

Inc. v. La Republica de Venezuela, 200 F.3d 843, 850–51 (D.C.

Cir. 2000) (considering, in alter-ego analysis, governmental

action that occurred before plaintiffs sought financial redress).

Little imagination is required: a state could quickly scale back

oversight, announce laudable (but long-away) reforms, pass

promises of new corporate independence, and perhaps

commission a blue-ribbon study panel or two. All while its

practices dating back to the injury show an alter ego

relationship. Nor is exclusive reliance on the time of injury a

satisfying approach. Cf. EM Ltd. v. Banco Central de la

República Argentina, 800 F.3d 78, 84–85, 92–94 (2d Cir.

2015) (considering, in alter-ego analysis, sovereign’s billion-

dollar borrowing from instrumentality after plaintiffs first

sought attachment). The conduct of the Castro Regime in

Bancec19 shows how a state determined to avoid creditors

liability.”); C M Corp. v. Oberer Dev. Co., 631 F.2d 536, 539

(7th Cir. 1980) (considering in a corporate veil context whether

there was “evidence that [companies] were shells or sham

corporations during the period when appellants and their

assignors were dealing with them”).

19

See Bancec, 462 U.S. at 615–16 (“Bancec was

dissolved and its capital was split between Banco Nacional and

‘the foreign trade enterprises or houses of the Ministry of

Foreign Trade’ . . . . All of Bancec’s rights, claims, and assets

‘peculiar to the banking business’ were vested in Banco

Nacional . . . . All of Bancec’s ‘trading functions’ were to be

27

might simply drop vulnerable assets into a new instrumentality

and thus “creat[e] juridical entities whenever the need arises.”

462 U.S. at 633.

We heed the charge of the Supreme Court drawing on

the “application of internationally recognized equitable

principles to avoid the injustice that would result from

permitting a foreign state to reap the benefits of our courts

while avoiding the obligations of international law.” Id. at 633–

34. And we conclude the alter-ego inquiry should consider all

relevant facts up to the time of the service of the writ of

attachment.

III.

Considering the totality of Venezuela’s control over

PDVSA, it is clear PDVSA is Venezuela’s alter ego. As in

Crystallex II, we draw from the “Bancec factors,” namely:

(1) the level of economic control by the

government; (2) whether the entity’s profits go

to the government; (3) the degree to which

government officials manage the entity or

otherwise have a hand in its daily affairs; (4)

whether the government is the real beneficiary of

the entity’s conduct; and (5) whether adherence

assumed by ‘the foreign trade enterprises or houses of the

Ministry of Foreign Trade.’ . . . [T]he Ministry of Foreign

Trade created Empresa. . . . Empresa was dissolved and

Bancec’s rights relating to foreign commerce in sugar were

assigned to Empresa Cubana Exportadora de Azucar y sus

Derivados (Cuba Zucar), a state trading company, which is

apparently still in existence.”) (citations omitted).

28

to separate identities would entitle the foreign

state to benefits in United States courts while

avoiding its obligations.

Crystallex II, 932 F.3d at 141 (quoting Rubin, 138 S. Ct. at

823).

1. Economic Control

Venezuela exerts significant economic control over

PDVSA. Start with the Venezuelan Constitution: Article 12

provides that hydrocarbon deposits within Venezuelan

territory are government property, Article 302 reserves state

control over petroleum activity, and Article 303 enshrines that

the State must retain all shares in PDVSA. Crystallex II, 932

F.3d at 147. These statements of authority are not merely

aspirational; Venezuelan authorities have dictated PDVSA’s

sales practices and prices, inside Venezuela and abroad. Id.

From 2010 to 2016, PDVSA contributed around $77 billion to

Venezuelan allies, and in 2017, topped off the tank with the

announcement of a $1.2 billion payment on PDVSA bonds

along with plans to restructure PDVSA’s debt. Id. at 147–48.

Appellants argue drastic changes arrived in 2019, but as

the District Court explained, new structures did not alter

Venezuela’s significant control. In March 2019, Maduro

ordered the transfer of PDVSA’s European Office from Lisbon

to Moscow. Manuel Salvador Quevedo Fernández, a National

Guard Major General who was Minister of Housing and

Habitat before being appointed by Maduro as both oil minister

and president of PDVSA, announced the completion of the

European Office’s move that September. A month later, he

29

signed a commercial contract with an Indian corporation. In

May 2020, PDVSA on its website advised that, heeding

Maduro’s directive, it would increase the price of gasoline in

Venezuela. It also announced to owners of service stations that,

under Maduro’s Executive Order 4.090, it could rescind

service station licenses—which it promptly did.

Much the same has followed in the United States, where

the Guaidó Government holds direct access to PDVSA’s U.S.

bank accounts, manages (and offered to renegotiate) PDVSA’s

bond debt, sent PDVSA money earmarked for legal bills, and

considers PDVSA’s property “Venezuelan assets held abroad.”

App. 44–46.

True, the Guaidó Government has encouraged

PDVSA’s Ad Hoc Board to become more independent. But

given the Maduro Government’s continued extreme control of

PDVSA in Venezuela and abroad, and the Guaidó

Government’s substantial control of PDVSA’s American

operations, the facts reveal Venezuela’s significant economic

control of PDVSA through both rival governments.

2. Profits

Not all the Bancec factors are complicated inquires, and

here, just as we explained in Crystallex II, “[a]s PDVSA’s lone

shareholder, all profit ultimately runs to the Venezuelan

government.” 932 F.3d at 148. Profits, we noted, that PDVSA

paid back to Venezuela accompanied by taxes and royalties,

sometimes at an artificially high rate. Id. And the Guaidó

Government retains direct access to PDVSA’s U.S. bank

30

accounts, one of the assets PDVSA’s Ad Hoc Board has

regularly characterized as Venezuela’s.

3. Management

Venezuelan officials are vital to management of

PDVSA and maintain a strong presence in its daily affairs. We

explained that “President Maduro appoint[ed] PDVSA’s

president, directors, vice-presidents, and members of its

shareholder council.” Id. Appointments that included roles for

military leaders and high government officials, sharing office

space with the Ministry of Petroleum and Mining. Id. Even

lower-level employees faced threats of termination if they did

not attend Maduro’s political rallies and vote for his coalition

in elections. See id. Nothing has changed since 2019, with

Maduro calling on PDVSA workers to attack Guaidó, tasking

the Minister of Petroleum to restructure PDVSA and attend an

OPEC meeting on behalf of both Venezuela and PDVSA, and

making political announcements from PDVSA’s offices.

Similarly, as the Delaware District Court found, “Mr.

Guaidó [is empowered] to appoint and remove an Ad Hoc

Board of Directors to exercise rights as PDV Holding’s

shareholder, including appointing and removing board

members to PDV Holding, CITGO, and other affiliates.” App.

46–47 (citations omitted).20 “PDVSA’s Ad Hoc Board

acknowledges that it operates at the ‘directives’ of the Guaidó

Government.” App. 47. The National Assembly requires

20

Appellants argue the Guaidó Government has not

pursued the same corrupt management as its predecessors, a

point we need not refute. Because it is control, not corruption,

that we evaluate—the means and ways of management, not the

ends those actors pursue.

31

PDVSA to obtain prior approval for “national interest”

contracts, which PDVSA’s Ad Hoc Board has suggested could

cover all PDVSA’s agreements. App. 49. A theory consistent

with PDVSA’s practice of sending every contract with foreign

parties to the National Assembly for approval. All backed up

by the Guaidó Government’s domination of PDVSA’s legal

strategy, including sharing lawyers and directing when and

how PDVSA pays its debts.

The parties disagree about the degree of that control,

with PDVSA arguing it all falls short of complete day-to-day

operational command. But neither this Court nor the Supreme

Court has ever held absolute day-to-day control over

operations to be necessary or even the touchstone of the alter-

ego inquiry. We do not buck that trend, and instead look to all,

not one, of the facts. Together, they reveal a high degree of

governmental management of PDVSA’s affairs.

4. Beneficiaries

PDVSA exists to benefit Venezuela. PDVSA paid

Venezuela’s administrative fees for Venezuela’s arbitration

with Crystallex, and Venezuela gave PDVSA a number of

mining rights for no consideration. Crystallex II, 932 F.3d at

149. Venezuela committed PDVSA to sell oil to Caribbean and

Latin American allies at steep discounts to further Venezuela’s

policies, often with deferred payments to Venezuela, not

PDVSA. See id. at 147–49. Senior members of the Maduro

Regime used PDVSA’s aircraft for state purposes, a practice

that continued well after the 2019 election.

The Guaidó Government has not taken identical steps,

but it still views PDVSA as key to advancing its political goals.

The Delaware District Court found that PDVSA’s Ad Hoc

32

Board repeatedly described its mission as safeguarding its

assets for the country of Venezuela, and that “Mr. Guaidó and

his government regularly characterize PDVSA and its related

assets, such as CITGO, as assets of the State.” App. 50. As

Venezuela points out, the Guaidó Government’s declarations

in the Democracy Transition Statute and Presidential Decree

No. 3 have encouraged PDVSA to act economically rather than

“on behalf of the government at its own expense.” Venezuela

Opening Br. 37. But an instrumentality need not harm itself to

benefit the sovereign. Together with the actions of PDVSA in

Venezuela, this factor is satisfied.

5. Equity

Consider, finally, how Venezuela arrives in this Court.

The state owes on judgments but denies we have jurisdiction

to allow remedies aimed at PDVSA. All while “PDVSA, and

by extension Venezuela, derives significant benefits from the

U.S. judicial system.” Crystallex II, 932 F.3d at 149. PDVSA

enjoys the benefits and protections of United States law,

including 2020 bonds “backed by the common stock and

underlying assets of U.S.-based corporations,” with “the U.S.

legal system [a]s the backstop that gives substantial assurance

to investors who buy PDVSA’s debt.” Id. (internal citations

omitted). Observations that still ring true.

Venezuela responds that this rationale would demand an

alter-ego finding in every case. That concern is misplaced.

Access to the courts of the United States is more than an

incidental benefit for PDVSA and its three Delaware-

corporation subsidiaries. And we again note that our analysis

checks the entire record, not detached boxes.

33

That all the Bancec factors weigh towards finding an

alter-ego relationship does not control our inquiry, but it is

more than mere coincidence. It reflects our long running

practice of “declin[ing] to adhere blindly to the corporate form

where doing so would cause such an injustice.” Bancec, 462

U.S. at 632. For those reasons, PDVSA remains the alter ego

of Venezuela and lacks sovereign immunity.21

IV.

PDVSA and Venezuela ask us to consider an issue

beyond the Delaware District Court’s denial of sovereign

immunity: the attachment of PDVSA’s shares in PDVH. But

Congress has only given the federal circuit courts jurisdiction

over “appeals from all final decisions of the district courts.” 28

U.S.C. § 1291. A “final decision” is “one which ends the

litigation on the merits and leaves nothing for the court to do

but execute the judgment.” Catlin v. United States, 324 U.S.

229, 233 (1945). Often, that means dissatisfied parties must

wait rather than appeal, even, as is common, when time is

money. “[I]ndeed, ‘the possibility that a ruling may be

erroneous and may impose additional litigation expense is not

sufficient to set aside the finality requirement imposed by

Congress.’” Weber v. McGrogan, 939 F.3d 232, 236 (3d Cir.

21

Even if we were to disregard the lessons we have

taken from the history of sovereign immunity and the FSIA

and look only to the actions of the Guaidó Government, the

result would not change. The District Court found the Guaidó

Government’s direction and control over PDVSA was

analogous to the direction and control of the Maduro

Government as identified by this Court in Crystallex II. That

finding was not clearly erroneous based on the actions of the

Guaidó Government we have detailed above.

34

2019) (quoting Richardson-Merrell, Inc. v. Koller, 472 U.S.

424, 436 (1985)).

Despite the clarity of 28 U.S.C. § 1291, we have long

allowed decisions denying sovereign immunity under the FSIA

to be immediately appealed under the “collateral order

doctrine.” See Fed. Ins. Co. v. Richard I. Rubin & Co., 12 F.3d

1270, 1282 (3d Cir. 1993) (walking through the Cohen factors

and joining other circuits in “decid[ing] that we have appellate

jurisdiction [over denials of sovereign immunity under the

FSIA] pursuant to the collateral order doctrine”).22

22

A conclusion reached by every other circuit to

consider the question. See Segni v. Com. Off. of Spain, 816 F.2d

344, 347 (7th Cir. 1987); Compania Mexicana De Aviacion,

S.A. v. U.S. Dist. Court for Cent. Dist. of Cal., 859 F.2d 1354,

1358 (9th Cir. 1988) (per curiam); Foremost-McKesson, Inc.

v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990);

Stena Rederi AB v. Comision de Contratos, 923 F.2d 380, 385

(5th Cir. 1991); Eckert Int’l, Inc. v. Gov’t of Sovereign

Democratic Republic of Fiji, 32 F.3d 77, 79 (4th Cir. 1994);

Honduras Aircraft Registry, Ltd. v. Gov’t of Honduras, 129

F.3d 543, 545 (11th Cir.1997); Rein v. Socialist People’s

Libyan Arab Jamahiriya, 162 F.3d 748, 755–56 (2d Cir. 1998);

Southway v. Cent. Bank of Nigeria, 198 F.3d 1210, 1214 (10th

Cir. 1999); Ungar v. Palestine Liberation Org., 402 F.3d 274,

293 (1st Cir. 2005); O’Bryan v. Holy See, 556 F.3d 361, 372

(6th Cir. 2009). The Eighth Circuit does not appear to have

directly addressed this point, although in passing seems to

agree. See BP Chems. Ltd. v. Jiangsu SOPO Corp. (Grp.), 420

F.3d 810, 818 (8th Cir. 2005).

Under Cohen’s test, concluding an appeal of a denial of

sovereign immunity is immediately appealable makes sense. A

35

Appellants ask us to take our jurisdiction even farther

from the text of § 1291 and consider the propriety of

attachment under the Federal Rules using “pendent appellate

non-final order is reviewable under the collateral order

doctrine if it: 1) conclusively determines the disputed issue; 2)

resolves an important issue separate from the merits of the

action; and 3) would be effectively unreviewable on appeal

from the final judgment. See Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100, 105 (2009); Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541 (1949). Denials of sovereign immunity fit

the bill. They conclusively determine whether a party is subject

to continuing litigation, but are distinct from the merits. And

reviewing a denial after a final judgment is of no help to the

sovereign. All similar to denials of qualified immunity and

Eleventh Amendment immunity the Supreme Court has held

are immediately appealable under the collateral order doctrine.

See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Puerto

Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506

U.S. 139, 141 (1993).

Still, concerns remain, and the Supreme Court has

“described the conditions for collateral order appeal as

stringent.” Digital Equip. Corp. v. Desktop Direct, Inc., 511

U.S. 863, 868 (1994). The doctrine as announced through

Cohen is an example of “the displacement of apparently

controlling, nonjudicial, primary texts.” Mitchel de S.-O.-l’E.

Lasser, “Lit. Theory” Put to the Test: A Comparative Literary

Analysis of American Judicial Tests and French Judicial

Discourse, 111 Harv. L. Rev. 689, 702 (1998). And the trend

has only become trendier given the “textualization of

precedent,” the practice of treating judicial opinions like

statutes. See Peter M. Tiersma, The Textualization of

Precedent, 82 Notre Dame L. Rev. 1187, 1188 (2007).

36

jurisdiction.” But the collateral order doctrine is already an

expansion of § 1291, and pendent appellate jurisdiction further

“drift[s] away from the statutory instructions Congress has

given to control the timing of appellate proceedings.” Swint v.

Chambers Cnty. Comm’n, 514 U.S. 35, 45 (1995). As the Court

explained, the “procedure Congress ordered” for adding to “the

list of orders appealable on an interlocutory basis” “is not

expansion by court decision, but by rulemaking under § 2072”

of the Rules Enabling Act. Id. at 48. Indeed, the unanimous

Court declined to “definitively or preemptively settle . . .

whether or when it may be proper for a court of appeals, with

jurisdiction over one ruling, to review, conjunctively, related

rulings that are not themselves independently appealable.” Id.

at 50–51. Meaning the Court “reserved the very existence of”

pendent appellate jurisdiction. Stephen I. Vladeck, Pendent

Appellate Bootstrapping, 16 Green Bag 2d 199, 205 (2013).

Heeding that warning, in the years after Swint, this

Court has exercised pendent appellate jurisdiction in only two

narrow circumstances: 1) when an otherwise non-appealable

order is “inextricably intertwined” with an appealable order,

and 2) when “necessary to ensure meaningful review of the

appealable order.” E.I. DuPont de Nemours & Co. v. Rhone

Poulenc Fiber and Resin Intermediates, S.A.S., 269 F.3d 187,

203 (3d Cir. 2001). Orders are “inextricably intertwined” “only

when the appealable issue cannot be resolved without

reference to the otherwise unappealable issue.” Reinig v. RBS

Citizens, N.A., 912 F.3d 115, 130 (3d Cir. 2018) (citations and

quotation marks omitted). That “the two orders arise out of the

same factual matrix” is insufficient, “even if considering the

orders together may be encouraged under considerations of

efficiency.” Id. (citation and quotation marks omitted). The

question is whether the appealable order can be “dispose[d]

37

of . . . without venturing into otherwise nonreviewable

matters.” Id. at 131 (citation omitted). If so, we “have no

need—and therefore no power—to examine the

[nonreviewable] order.” Id. (citation omitted).

Venezuela argues not only that the immunity and

attachment issues are “inextricably intertwined,” but that they

are “coextensive.” Venezuela Opening Br. 44. Because the

District Court applied the Bancec common law alter-ego test

to the immunity inquiry, Venezuela says, “sufficient overlap in

the facts relevant to both the appealable and nonappealable

issues” warrants review of the attachment issue now.

Venezuela Opening Br. 44–45 (citation omitted). We disagree.

The immunity inquiry used the Bancec factors to determine

whether a state exercises such extensive control over an

instrumentality that it may be considered an “alter ego” of the

state. The attachment inquiry invoked Bancec to evaluate

whether PDVSA’s property can be attached to pay out a

judgment. Resolution of the immunity issue does not dictate

the outcome of the attachment issue. So we will not wade into

the attachment waters, mindful that “loosely allowing pendent

appellate jurisdiction would encourage parties to

parlay . . . collateral orders into multi-issue interlocutory

appeal tickets.” Swint, 514 U.S. at 49–50. Even if we could

consider the attachment issue, we would decline to do so in our

discretion. See United States v. Spears, 859 F.2d 284, 287 (3d

Cir. 1988) (“[O]nce we have taken jurisdiction over one issue

in a case, we may, in our discretion, consider otherwise

nonappealable issues in the case as well, where there is

sufficient overlap in the facts relevant to [the appealable and

nonappealable] issues to warrant our exercising plenary

authority over [the] appeal.” (quoting San Filippo v. United

States Tr. Co., 737 F.2d 246, 255 (2d Cir. 1984))).

38

***

The District Court did not clearly err in its factual

determinations and did not legally err in its application of the

Bancec factors. For the second time in five years, we conclude

that PDVSA is the alter ego of Venezuela, and we will affirm

the District Court’s denial of sovereign immunity to PDVSA.

39