Devas Multimedia Private Ltd. v. Antrix Corp. Ltd.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEVAS MULTIMEDIA PRIVATE No. 20-36024

LIMITED,

D.C. No. 2:18-cv-

Petitioner-Appellee, 01360-TSZ

CC/DEVAS (MAURITIUS)

LIMITED; DEVAS MULTIMEDIA ORDER

AMERICA, INC.; DEVAS

EMPLOYEES MAURITIUS

PRIVATE LIMITED; TELCOM

DEVAS MAURITIUS LIMITED,

Appellees-Intervenors,

v.

ANTRIX CORP. LTD.,

Respondent-Appellant.

DEVAS MULTIMEDIA PRIVATE No. 22-35085

LIMITED,

D.C. No. 2:18-cv-

Petitioner-Appellant, 01360-TSZ

2 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

CC/DEVAS (MAURITIUS)

LIMITED; TELCOM DEVAS

MAURITIUS LIMITED; DEVAS

MULTIMEDIA AMERICA, INC.;

DEVAS EMPLOYEES MAURITIUS

PRIVATE LIMITED,

Intervenor-Plaintiffs-

Appellees,

v.

ANTRIX CORP. LTD.,

Respondent.

DEVAS MULTIMEDIA PRIVATE No. 22-35103

LIMITED,

D.C. No. 2:18-cv-

Petitioner, 01360-TSZ

and

CC/DEVAS (MAURITIUS)

LIMITED; DEVAS MULTIMEDIA

AMERICA, INC.; DEVAS

EMPLOYEES MAURITIUS

PRIVATE LIMITED; TELCOM

DEVAS MAURITIUS LIMITED,

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 3

Intervenor-Plaintiffs-

Appellees,

v.

ANTRIX CORP. LTD.,

Respondent-Appellant.

Filed February 6, 2024

Before: Eric D. Miller and Lucy H. Koh, Circuit Judges,

and Donald W. Molloy, * District Judge.

Order;

Statement by Judge O’Scannlain;

Dissent by Judge Bumatay

SUMMARY **

Personal Jurisdiction / Foreign Sovereign Immunities

Act

The panel filed an order denying petitions for rehearing

en banc and directing that no further petitions will be

*

The Honorable Donald W. Molloy, United States District Judge for the

District of Montana, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

entertained, in a case in which the panel held that the district

court erred in exercising personal jurisdiction over Antrix

Corp. Ltd., an Indian corporation, under the Foreign

Sovereign Immunities Act, because plaintiff failed to

establish that Antrix had the requisite minimum contacts for

personal jurisdiction.

In a statement respecting the denial of rehearing en banc,

Judge O’Scannlain wrote that he agreed with the views

expressed by Judge Bumatay in his dissent from the denial

of rehearing en banc.

Dissenting from the denial of rehearing en banc, Judge

Bumatay, joined by Judges Callahan, Ikuta, Bennett, R.

Nelson, and VanDyke, wrote that the Foreign Sovereign

Immunities Act, governing when foreign states may be sued

in federal court, does not require plaintiffs to also prove

“minimum contacts” to assert personal jurisdiction over a

foreign state, and this court’s error in holding otherwise

should be corrected through rehearing en banc.

ORDER

The panel has unanimously voted to deny the petitions

for rehearing en banc. Judge Miller and Judge Koh have

voted to deny the petitions for rehearing en banc, and Judge

Molloy so recommends.

The full court has been advised of the petitions for

rehearing en banc. A judge of the court requested a vote on

en banc rehearing. The matter failed to receive a majority of

votes of non-recused active judges in favor of en banc

consideration. Fed. R. App. P. 35(f).

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 5

The petitions for rehearing en banc, (20-36024 Dkts. No.

111, 112; 22-35085 Dkt. No. 56; 22-35103 Dkt. No. 63), are

DENIED. No further petitions for rehearing or rehearing en

banc will be entertained. Judge O’Scannlain’s statement

respecting the denial of en banc rehearing and Judge

Bumatay’s dissent from the denial of en banc rehearing are

filed concurrently herewith.

O’SCANNLAIN, 1 Circuit Judge, respecting the denial of

rehearing en banc:

I agree with the views expressed by Judge Bumatay in

his dissent from the denial of rehearing en banc.

BUMATAY, Circuit Judge, joined by CALLAHAN,

IKUTA, BENNETT, R. NELSON, and VANDYKE, Circuit

Judges, dissenting from the denial of rehearing en banc:

Federal courts “have no more right to decline the

exercise of jurisdiction which is given, than to usurp that

which is not given.” Cohens v. Virginia, 19 U.S. (6 Wheat.)

264, 404 (1821). We thus have a “virtually unflagging”

obligation to “hear and decide cases within [our]

jurisdiction.” Lexmark Int’l, Inc. v. Static Control

1

As a judge of this court in senior status, I no longer have the power to

vote on calls for rehearing cases en banc or formally to join a dissent

from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. P.

35(a). Following our court’s general orders, however, I may participate

in discussions of en banc proceedings. See Ninth Circuit General Order

5.5(a).

6 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

Components, Inc., 572 U.S. 118, 126 (2014) (simplified).

When reading jurisdictional statutes, our task is to simply

“apply traditional principles of statutory interpretation” and

ask whether Congress authorized suit. See id. at 128. It

should go without saying that we do not “ask whether in our

judgment Congress should have authorized . . . suit.” Id.

In 1976, Congress enacted the Foreign Sovereign

Immunities Act (“FSIA”) to govern when foreign states may

be sued in federal court. 28 U.S.C. § 1602 et seq. As a

default, the FSIA establishes that foreign states are immune

from the jurisdiction of federal courts. Id. § 1604. But

Congress set aside sovereign immunity for claims that fall

within certain specified exceptions. See id. §§ 1605, 1605A,

1605B. Those exceptions range from pursuing state

sponsors of terrorism to recovering damages for violations

of commercial agreements. And Congress did not mince its

words in providing jurisdiction for these claims. The FSIA

states that “[p]ersonal jurisdiction over a foreign state shall

exist” when enumerated claims are brought with proper

service. Id. § 1330(b) (emphasis added). Such mandatory

language leaves no room for courts to alter the immunity

inquiry. Put simply, “any sort of immunity defense made by

a foreign sovereign in an American court must stand on the

Act’s text. Or it must fall.” Republic of Argentina v. NML

Cap., Ltd., 573 U.S. 134, 141–42 (2014).

This case presents a straightforward question. Despite

the FSIA’s text, does the Act require plaintiffs to also prove

“minimum contacts” to assert personal jurisdiction over a

foreign state? Unlike every other federal court, the Ninth

Circuit answers “yes.” And saying “yes” is a big deal—it

means that we lock the courthouse doors to plaintiffs whom

Congress expressly granted access. So victims of terrorism,

those harmed by violations of international law, and persons

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 7

who suffered from torture may be barred from seeking

justice in our courts. See 28 U.S.C. §§ 1605, 1605A, 1605B.

Congress swung the doors open and we slammed them shut.

Our failure to correct this error violates the separation of

powers and anoints ourselves gatekeepers in a way not

contemplated by Congress or the Constitution.

The problem started more than 40 years ago. Back then,

our court appended minimum contacts to the list of

requirements that plaintiffs must establish to assert

jurisdiction over a foreign state. See Thomas P. Gonzalez

Corp. v. Consejo Nacional De Produccion De Costa Rica

(“Gonzalez”), 614 F.2d 1247, 1255 (9th Cir. 1980). There,

we said, “[p]ersonal jurisdiction under the [FSIA] requires

satisfaction of the traditional minimum contacts standard.”

Id. We thus replaced the words “shall exist” in § 1330(b)

with “may exist” and substituted our own view that Congress

must have really wanted foreign states to also have sufficient

minimum contacts with the United States. Under our rule,

then, personal jurisdiction exists only when our judicially

created hurdle is satisfied.

And we made this interpretive move under the most

dubious of guises—legislative history. While strongly

disfavored today, back in 1980, it was more common to

determine meaning not from statutory text, but from

legislative accoutrements. And that’s what we did. We

looked at a single House Committee Report and surmised

what we thought Congress really wanted. See Gonzalez, 614

F.2d at 1255 (“The legislative history of the Act confirms

that the reach of § 1330(b) does not extend beyond the limits

set by the International Shoe line of cases.”). “The question,

however, is not what Congress ‘would have wanted’ but

what Congress enacted in the FSIA.” Republic of Argentina

v. Weltover, Inc., 504 U.S. 607, 618 (1992).

8 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

Today, it’s obvious that we cannot appeal to legislative

history to undo a statute’s plain meaning. See Epic Sys.

Corp. v. Lewis, 584 U.S. 497, 523 (2018). So we know that

Gonzalez’s interpretation is wrong. But even if that history

mattered, the Report doesn’t say what Gonzalez thought it

said about minimum contacts. The Report merely observed

that the Act’s exceptions “embodied” a minimum-contacts

analysis. Gonzalez, 614 F.2d at 1255 n.5 (quoting the

Committee Report). It says nothing about adding another

layer of minimum-contacts review before denying foreign-

state immunity. To my knowledge, no other court interprets

the FSIA this way.

And nothing in the Constitution requires a minimum-

contacts analysis either. Federal courts have uniformly

recognized that foreign states are not entitled to the

protection of minimum contacts under the Fifth

Amendment. See Price v. Socialist People’s Libyan Arab

Jamahiriya, 294 F.3d 82, 99 (D.C. Cir. 2002); Frontera Res.

Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic,

582 F.3d 393, 399–400 (2d Cir. 2009); Abelesz v. Magyar

Nemzeti Bank, 692 F.3d 661, 694 (7th Cir. 2012). The

Supreme Court has also suggested the same. See Weltover,

504 U.S. at 619. So the Due Process Clause fails to justify

our wayward precedent.

Despite all this, our court not only perpetuates, but

arguably expands, the minimum-contacts requirement here.

See Devas Multimedia Priv. Ltd. v. Antrix Corp., 2023 WL

4884882, at *1–2 (9th Cir. 2023). While Gonzalez merely

dealt with the commercial activities exception, see 614 F.2d

at 1255, our court seemingly rules that the minimum-

contacts inquiry extends to all exceptions under the FSIA.

Devas, 2023 WL 4884882, at *1–2. In this case, we applied

it to a new context—the arbitral exception—for the first

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 9

time. See 28 U.S.C. § 1605(a)(6). We did so even while a

majority of the panel recognized that “our precedent

applying the minimum-contacts test to the exercise of

personal jurisdiction over foreign states has no foundation in

the Constitution or the FSIA, and it is contrary to the views

of other courts of appeals.” Devas, 2023 WL 4884882, at *4

(Miller, J., joined by Koh, J., concurring). So while the

majority of the panel disagrees with our precedent, it

expanded its troubling reach.

This case presented an opportunity to correct our

erroneous precedent and apply the FSIA the way Congress

enacted it. But our court refuses to step in and denies en

banc review. And it’s hard to explain why. Sure, it’s true

that the specific dispute between Devas Multimedia and

Antrix Corporation raises some other complexities—like

whether Antrix is sufficiently controlled by India to be

considered a foreign state. But those other questions are

secondary to whether foreign states are entitled to a

minimum-contacts analysis in the first place. Those

subsidiary questions are thus distractions that should have

been left to the three-judge panel to resolve. At a minimum,

we should have overruled Gonzalez and discarded our

blanket bar to bringing claims against foreign states unless

plaintiffs can prove minimum contacts.

After all, how many would-be plaintiffs gave up valid

claims in the Ninth Circuit because of our out-of-sync rule?

How many plaintiffs had to seek redress in other courts to

sidestep our precedent? And how many plaintiffs were

simply kicked out of our courts by the minimum-contacts

requirement? The effect of our ruling is unquestionably

significant. Under a proper reading of the FSIA, those

plaintiffs should be welcome to bring their claims in our

circuit.

10 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

Because we fail our “unflagging” duty to hear and decide

cases within our jurisdiction, I respectfully dissent from the

denial of rehearing en banc.

I.

A.

Let’s begin with a brief overview of the FSIA. The FSIA

“establishes a comprehensive framework for determining

whether a court in this country, state or federal, may exercise

jurisdiction over a foreign state.” Weltover, 504 U.S. at 610.

The Act “standardize[s] the judicial process with respect to

immunity for foreign sovereign entities in civil cases.”

Turkiye Halk Bankasi A.S. v. United States, 598 U.S. 264,

272 (2023).

The FSIA starts from the “baseline” that foreign states

and their instrumentalities are entitled to sovereign

immunity in our courts. Id. (citing 28 U.S.C. § 1604). But

Congress then specified certain exceptions when that

immunity is withheld. The FSIA provides that:

(a) The district courts shall have original

jurisdiction without regard to amount in

controversy of any nonjury civil action

against a foreign state as defined in

section 1603(a) of this title as to any

claim for relief in personam with respect

to which the foreign state is not entitled

to immunity either under sections 1605-

1607 of this title or under any applicable

international agreement.

(b) Personal jurisdiction over a foreign state

shall exist as to every claim for relief over

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 11

which the district courts have jurisdiction

under subsection (a) where service has

been made under section 1608 of this

title.

28 U.S.C. § 1330.

So whenever an exception applies, Congress grants

personal jurisdiction over a foreign state “as to every claim

for relief” after proper service. Id. § 1330(b). Thus, the

FSIA “bars federal and state courts from exercising

jurisdiction when a foreign state is entitled to immunity, and

[then] confers jurisdiction on district courts to hear suits

brought by United States citizens and by aliens when a

foreign state is not entitled to immunity.” Argentine

Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,

434 (1989). In other words, Congress closed the door on

suits against foreign states, while leaving the keys for some

types of claims.

The FSIA exceptions to immunity cover many subject

matters.

• Commercial Activities— Cases “in which the action

is based upon a commercial activity . . . that . . .

causes a direct effect in the United States.” 28 U.S.C.

§ 1605(a)(2).

• Expropriation— Cases “in which rights in property

taken in violation of international law are in issue and

that property [has a connection to the United

States].” 28 U.S.C. § 1605(a)(3).

• Arbitration— Cases “in which the action is brought

. . . to confirm an award made pursuant to . . . an

agreement to arbitrate” including when that award

12 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

“is or may be governed by a treaty or other

international agreement in force . . . calling for the

recognition and enforcement of arbitral awards.” 28

U.S.C. § 1605(a)(6).

• Terrorism— Cases “in which money damages are

sought against a foreign state for personal injury or

death that was caused by an act of torture,

extrajudicial killing, aircraft sabotage, hostage

taking, or the provision of material support or

resources . . . [by] a state sponsor of terrorism.” 28

U.S.C. § 1605A.

As part of Congress’s “carefully calibrated scheme,” it

also established procedures governing suits under the FSIA.

Turkiye Halk Bankasi, 598 U.S. at 273. Congress included

many specifics, like a venue provision, 28 U.S.C. § 1391(f),

service of process requirements, id. § 1608, and a bar on

punitive damages, id. § 1606. And foreign states are “liable

in the same manner and to the same extent as a private

individual under like circumstances.” Id.

Finally, the FSIA does not just cover direct suits against

a foreign government. Instead, “[t]he FSIA defines a

‘foreign state’ to [also] encompass instrumentalities of a

foreign state.” Turkiye Halk Bankasi, 598 U.S. at 272 (citing

28 U.S.C. §§ 1603(a)–(b)). This definition “includ[es]

entities that are directly and majority-owned by a foreign

state.” Id. Thus, personal jurisdiction may exist over a

foreign sovereign and its state-owned companies.

B.

Now, a quick rundown of this case. Antrix is a company

wholly owned by the Republic of India. India incorporated

Antrix to market goods and services created by the country’s

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 13

Department of Space and the Indian Space Research

Organization. Devas was a private company created by a

group of American investors and executives to develop

telecommunications services in India. The two companies

agreed to work together to build, launch, and manage

telecommunication satellites. To carry out this agreement,

they signed a contract which included an arbitration

provision. Eventually, Antrix sought to terminate the

agreement; Devas responded by initiating arbitration. A

foreign arbitration tribunal found for Devas and awarded it

$562.5 million in damages. Devas and Antrix then filed

dueling petitions in the Indian courts—Devas’s to confirm

the award and Antrix’s to set it aside.

While the Indian proceedings were pending, Devas

sought to confirm the award elsewhere. It petitioned to

confirm the arbitration award in the Western District of

Washington, where Antrix has business relationships with

several firms. Devas relied on the arbitral exception to the

FSIA. See 28 U.S.C. § 1605(a)(6). Although it was

uncontested that Antrix is a “foreign state” under the FSIA,

service was proper, and Devas’s claim falls under the arbitral

exception, Antrix still argued personal jurisdiction was

improper.

The district court rejected Antrix’s jurisdictional

challenge. It first held that personal jurisdiction was

satisfied under the FSIA, because the “parties d[id] not

dispute that personal jurisdiction exists as a matter of

statute.” The district court then concluded that foreign states

are not entitled to minimum contacts under the Due Process

Clause and, even if they were, Antrix had sufficient contacts.

And the district court held that the Republic of India

“exercises sufficient control” over Antrix such that it should

be treated the same as the country for purposes of the due

14 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

process analysis. As a result, the district court ruled that

personal jurisdiction was proper, confirmed the award, and

entered judgment for $1.293 billion (after the inclusion of

pre-award and post-award interest). Antrix then appealed

from the district court’s judgment.

After that notice of appeal, there were two developments.

First, the Indian government placed Devas into liquidation

on the grounds that it had fraudulently conducted its affairs.

As a result, several shareholders of the company and its

American subsidiary intervened. The district court then

permitted the intervenors post-judgment discovery and

granted them leave to register the judgment. Both Antrix

and Devas (under the control of a liquidator) appealed the

order granting them leave to register the judgment.

Second, during the appeal, an Indian court set aside the

arbitration award. Antrix now claims that the award is no

longer enforceable, which Devas and the intervenors

dispute. Because these events occurred after the notice of

appeal here, Antrix sought a limited remand to determine

whether the district court should reverse its judgment on the

merits.

On appeal, our court brushed past all these developments

and complications and simply held that the district court

lacked personal jurisdiction over Antrix. The panel ruled

that the district court was bound to apply the minimum-

contacts analysis from Gonzalez because (1) the Supreme

Court has not contradicted our prior holding and (2) our

court’s minimum-contacts inquiry is based on a statutory

interpretation of the FSIA. The panel then easily rejected the

argument that minimum contacts were satisfied here.

Because it concluded that the district court lacked personal

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 15

jurisdiction, the panel didn’t address any other question on

appeal.

Judge Miller wrote a concurrence, joined by Judge Koh.

He explained that “our precedent applying the minimum-

contacts test to the exercise of personal jurisdiction over

foreign states has no foundation in the Constitution or the

FSIA, and it is contrary to the views of other courts of

appeals.” Devas, 2023 WL 4884882, at *4 (Miller, J.,

concurring). He recommended that, “[i]n an appropriate

case,” we should reconsider our erroneous precedent en

banc. Id.

So the sole question for the en banc court was whether

plaintiffs must prove minimum contacts before federal

courts may assert personal jurisdiction over foreign states

under the FSIA. Of course, answering that question may

lead to other questions.1 But that’s no reason to punt on this

case. As we often do, we could have left those subsidiary

questions to the three-judge panel or district court after

correcting our precedent. We were wrong to shy away from

this significant question.

I now turn to that question.

1

For example, Antrix argues that its corporate status may independently

mean it deserves due process protection. While that question adds

another wrinkle to this case, it would not prevent the en banc court from

answering whether a foreign state is entitled to a minimum-contacts

inquiry under the FSIA or the Due Process Clause. We could have then

remanded to the district court to see whether Antrix should be treated the

same as India. See Frontera, 582 F.3d at 400–01 (remanding to the

district court to determine whether a state-owned corporation was

entitled to due process).

16 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

II.

While the Supreme Court has called the FSIA

Congress’s “comprehensive framework” for resolving

claims of sovereign immunity, Weltover, 504 U.S. at 610,

the Ninth Circuit thinks it is not quite comprehensive

enough. Forty years ago, our court held that Congress’s

command that personal jurisdiction “shall exist” when an

enumerated exception is met, 28 U.S.C. § 1330(b), was

really just the starting point. We then rewrote the statute to

add a minimum-contacts requirement. Only after satisfying

our minimum-contacts inquiry does our court permit

personal jurisdiction over a foreign state.

This is not the law enacted by Congress and signed by

the President. We have no authority to make up our own

rules, especially when dealing with international affairs. See

Rubin v. Islamic Republic of Iran, 583 U.S. 202, 208 (2018)

(“[C]ourts traditionally deferred to the decisions of the

political branches . . . on whether to take jurisdiction over

actions against foreign sovereigns.” (simplified)). And

nothing in the Due Process Clause mandates our statutory

interpretation. Rather than extending our dubious precedent,

we should have used this case to discard it.

A. The FSIA’s Text Doesn’t Require Minimum

Contacts

Despite the clear command that personal jurisdiction

over a foreign state “shall exist” when an enumerated

exception applies, 28 U.S.C. § 1330(b), we adjoined a new

requirement to the FSIA in Gonzalez. In that case, we said

that “[p]ersonal jurisdiction under the Act requires

satisfaction of the traditional minimum contacts standard.”

Gonzalez, 614 F.2d at 1255. We thus added a layer of

review found nowhere in the text.

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 17

What supported this minimum-contacts regime? The

tersest of reasoning.

Gonzalez first looked to the phrase “direct effect” in one

exception—the commercial activities exception—and

seemingly read an across-the-board minimum-contacts

requirement from those two words. The commercial

activities exception provides for jurisdiction “upon an act

outside the territory of the United States in connection with

a commercial activity of the foreign state elsewhere and that

act causes a direct effect in the United States.” 28 U.S.C.

§ 1605(a)(2). Gonzalez explained that the term “‘direct

effect’ . . . ha[s] been interpreted as embodying the minimum

contacts standard” of International Shoe and its progeny.

614 F.2d at 1255. As support, Gonzalez cited two opinions

suggesting that § 1605(a)(2) incorporates the minimum-

contacts requirement. Id. (citing Carey v. Nat’l Oil Corp.,

592 F.2d 673, 676 (2d Cir. 1979) and East Eur. Domestic

Int’l Sales Corp. v. Terra, 467 F. Supp. 383, 388–90

(S.D.N.Y. 1979)). But see Rote v. Zel Custom Mfg. LLC,

816 F.3d 383, 394 (6th Cir. 2016) (holding that “the ‘direct

effect’ requirement does not incorporate the ‘minimum

contacts’ test”).

Next, Gonzalez looked outside the text—to legislative

history. It stated that “[t]he legislative history of the Act

confirms that the reach of § 1330(b) does not extend beyond

the limits set by the International Shoe line of cases.”

Gonzalez, 614 F.2d at 1255.

That’s the entirety of Gonzalez’s textual analysis. Based

on these flimsy data points, Gonzalez broadly proclaimed:

“Personal jurisdiction under the Act requires satisfaction of

the traditional minimum contacts standard.” Id.

18 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

The errors here are obvious—

First, Gonzalez didn’t ground its analysis in the text of

§ 1330(b). And it is hard to imagine a clearer statute. It

states that “[p]ersonal jurisdiction over a foreign state shall

exist as to every claim for relief over which the district courts

have jurisdiction under [an FSIA exception and] where

service has been made[.]” 28 U.S.C. § 1330(b). That

presents a simple if-then statement. When subject-matter

jurisdiction and service are proper under the FSIA, the

district court “shall” have personal jurisdiction. The word

“shall” connotes a “mandatory” requirement. Sebelius v.

Auburn Reg’l Med. Ctr., 568 U.S. 145, 154 (2013). When

“the statutory language is mandatory,” Congress “does not

[provide for] discretion.” See Nat’l Ass’n of Home Builders

v. Defs. of Wildlife, 551 U.S. 644, 661 (2007).

Every circuit that has analyzed the FSIA has refused to

find a statutory minimum-contacts requirement under

§ 1330(b). See TMR Energy Ltd. v. State Prop. Fund of

Ukraine, 411 F.3d 296, 303 (D.C. Cir. 2005); Frontera, 582

F.3d at 396; Abelesz, 692 F.3d at 694; S & Davis Int’l, Inc.

v. The Republic of Yemen, 218 F.3d 1292, 1303 (11th Cir.

2000). The FSIA thus “clearly expresses the decision of the

Congress to confer upon the federal courts personal

jurisdiction over a properly served foreign state.” TMR

Energy, 411 F.3d at 303.

Second, Gonzalez simply mixes up subject-matter

jurisdiction and personal jurisdiction. The commercial

activities exception, along with the other FSIA exceptions,

provides subject-matter jurisdiction to federal courts. See

Siderman de Blake v. Republic of Argentina, 965 F.2d 699,

706 (9th Cir. 1992) (“A federal court lacks subject-matter

jurisdiction over a claim against a foreign state unless the

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 19

claim falls within an exception to immunity under the

FSIA.”). But subject-matter jurisdiction is a separate

question from personal jurisdiction, which is governed by

§ 1330(b). So holding that § 1605(a)(2) creates a universal

minimum-contacts requirement for § 1330(b) conflates the

two concepts and makes no textual sense.

Third, Gonzalez was wrong to alter the clear text of

§ 1330(b) based on legislative history. While there was once

a time when courts would look to legislative history to

discern a statute’s meaning, that time has long since passed.

See Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.

402, 412 n.29 (1971) (only looking to the “statutes

themselves” after concluding that the legislative history was

“ambiguous”). Today, the rule is simple: “legislative history

is not the law.” Epic Sys. Corp., 584 U.S. at 523. “[I]t is the

statute, and not the Committee Report, which is the

authoritative expression of the law.” City of Chicago v.

Env’t Def. Fund, 511 U.S. 328, 337 (1994). So “to interpret

the statute, we look first to the statute’s language itself and

the specific context in which that language is used.”

Resisting Env’t Destruction on Indigenous Lands, REDOIL

v. EPA, 716 F.3d 1155, 1161 (9th Cir. 2013) (simplified).

Even for those who find legislative history persuasive, it

does not support Gonzalez’s minimum-contacts test for the

FSIA. Gonzalez’s analysis of that legislative history

consisted merely of a block quote of a House Committee

Report:

(b) Personal Jurisdiction. Section 1330(b)

provides, in effect, a Federal long-arm statute

over foreign states (including political

subdivisions, agencies, and instrumentalities

of foreign states). It is patterned after the

20 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

long-arm statute Congress enacted for the

District of Columbia. Public Law 91-358,

sec. 132(a), title I, 84 Stat. 549. The

requirements of minimum jurisdictional

contacts and adequate notice are embodied in

the provision. Cf. International Shoe Co. v.

Washington, 326 U.S. 310 (, 66 S.Ct. 154, 90

L.Ed. 95) (1945), and McGee v. International

Life Insurance Co., 355 U.S. 220, 223 (, 78

S.Ct. 199, 201, 2 L.Ed.2d 223) (1957). For

personal jurisdiction to exist under section

1330(b), the claim must first of all be one

over which the district courts have original

jurisdiction under section 1330(a), meaning a

claim for which the foreign state is not

entitled to immunity. Significantly, each of

the immunity provisions in the bill, sections

1605-1607, requires some connection

between the lawsuit and the United States, or

an express or implied waiver by the foreign

state of its immunity from jurisdiction. These

immunity provisions, therefore, prescribe the

necessary contacts which must exist before

our courts can exercise personal jurisdiction.

Besides incorporating these jurisdictional

contacts by reference, section 1330(b) also

satisfies the due process requirement of

adequate notice by prescribing that proper

service be made under section 1608 of the

bill. Thus, sections 1330(b), 1608, and 1605-

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 21

1607 are all carefully interconnected.

(Footnotes omitted.)

Gonzalez, 614 F.2d at 1255 n.5 (quoting H.R. Rep. No. 94-

1487, at 13–14 (1976)).

Although unclear, perhaps Gonzalez relied on the

Report’s statement that the “requirements of minimum

jurisdictional contacts and adequate notice are embodied in”

§ 1330(b). Id. But that doesn’t support appending an

additional minimum-contacts inquiry to § 1330(b). The

Report was just noting that the FSIA’s enumerated

exceptions by themselves satisfy the requirement of “some

connection between the lawsuit and the United States, or an

express or implied waiver by the foreign state of its

immunity from jurisdiction.” Id. So the Report determined

that satisfying one of these exceptions meets “the necessary

contacts which must exist before our courts can exercise

personal jurisdiction.” Id. It says nothing about a minimum-

contacts analysis over and above satisfying a statutory

exception. And if all that were not enough, the arbitral

exception was added more than a decade after the

Committee Report, making application of a minimum-

contacts test here even more dubious. See Pub. L. No. 100-

669, § 2, 102 Stat. 3969, 3969 (1988).

All told, this was the time to correct our circuit’s misstep.

All parties agree that an FSIA exception applied and service

was proper. Devas, 2023 WL 4884882, at *1. With those

two requirements satisfied, Congress’s command should

have been mandatory. Rather than adhering to the plain text

of the statute, we instead expanded our precedent to cover

all FSIA exceptions.

22 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

B. The Due Process Clause Doesn’t Require

Minimum Contacts

Perhaps realizing Gonzalez’s shaky textual foundation,

some of our later precedents began couching our minimum-

contacts inquiry as a constitutional requirement. See

Gregorian v. Izvestia, 871 F.2d 1515, 1528–29 (9th Cir.

1989) (sourcing the requirement in the “constitutional

constraints of the Due Process clause”); Altmann v. Republic

of Austria, 317 F.3d 954, 969–70 (9th Cir. 2002) (after

concluding that the FSIA is satisfied, conducting a

minimum-contacts analysis “[a]ssuming that a foreign state

is a ‘person’ for purposes of the Due Process Clause”). But

the Due Process Clause does not rescue our improper

addition of a minimum-contacts requirement. As a matter of

original meaning and modern precedent, the Fifth

Amendment’s Due Process Clause does not extend the

benefit of minimum contacts to foreign states.

Start with modern jurisprudence. The Supreme Court

has never said that the Due Process Clause applies to foreign

states. In fact, it has suggested the opposite. Nearly 60 years

ago, the Court held that “[t]he word ‘person’ in the context

of the Due Process Clause of the Fifth Amendment cannot,

by any reasonable mode of interpretation, be expanded to

encompass the States of the Union.” South Carolina v.

Katzenbach, 383 U.S. 301, 323 (1966). Later, while leaving

whether “a foreign state is a ‘person’ for purposes of the Due

Process Clause” open, the Supreme Court strongly hinted

that foreign states should be treated the same as domestic

States—meaning no due process protection. Weltover, 504

U.S. at 619 (citing Katzenbach’s holding that “States of the

Union are not ‘persons’ for purposes of the Due Process

Clause”).

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 23

Since Weltover, the consensus of circuit courts has

followed the Supreme Court’s lead and definitively held that

foreign states are not entitled to the protections of the Due

Process Clause.

The D.C. Circuit gave the most thorough explanation. It

said that conferring due process protections to foreign states

was “not only textually and structurally unsound, but it

would distort the very notion of ‘liberty’ that underlies the

Due Process Clause.” Price, 294 F.3d at 99. According to

that court, common usage of the term “person” didn’t

“include the sovereign.” Id. at 96 (quoting Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 64 (1989)). Indeed, the

court said, “foreign states stand on a fundamentally different

footing than do private litigants who are compelled to defend

themselves in American courts.” Id. at 98. Unlike most

“person[s],” “foreign nations are the juridical equals of the

government that seeks to assert jurisdiction over them.” Id.

And structurally, the D.C. Circuit described foreign

states as “entirely alien to our constitutional system.” Id.

at 96. Even though domestic States “derive important

benefits and must abide by significant limitations as a

consequence of their participation,” they receive no

protection under the Due Process Clause. Id. Given this, the

D.C. Circuit reasoned that foreign states must also be

excluded. Id. at 97. It would be “strange,” the court

observed, if domestic States, which were “integral and active

participants in the Constitution’s infrastructure,” were

unprotected by the Due Process Clause while foreign states

were. Id. at 96.

“[H]istory and tradition” also counseled in favor of

excluding foreign states from the Due Process Clause,

according to the D.C. Circuit. Id. at 97. As a historical

24 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

matter, the “principles of comity and international law . . .

protect[ed] foreign governments.” Id. Thus, “[t]he most a

foreign state can demand is that other states observe

international law, not that they enforce provisions of

domestic law.” Id. (quoting Lori Fisler Damrosch, Foreign

States and the Constitution, 73 Va. L. Rev. 483, 520 (1987)).

So “foreign states have available to them a panoply of

mechanisms in the international arena through which to seek

vindication or redress.” Id. at 99 (citing Damrosch, supra,

at 525).

Based on all this, the D.C. Circuit held that “[n]either the

text of the Constitution, Supreme Court decisions construing

the Due Process Clause, nor long standing tradition provide

a basis for extending the reach of this constitutional

provision for the benefit of foreign states.” Id.

The Second Circuit and Seventh Circuit agree. See

Frontera, 582 F.3d at 400 (“[F]oreign states are not

‘persons’ entitled to rights under the Due Process Clause.”);

Abelesz, 692 F.3d at 694 (“Other circuits have confronted

the issue and have held that foreign states are not ‘persons’

entitled to rights under the Due Process Clause. . . . We

agree.”). After Weltover, no other circuit court has ruled

otherwise. 2

2

Before Weltover, the Third Circuit and Fifth Circuit ruled that foreign

states are entitled to due process. See Velidor v. L/P/G Benghazi, 653

F.2d 812, 819 n.12 (3d Cir. 1981) (“We must also inquire . . . whether

the assertion of personal jurisdiction comports with the due process

clause.”); Callejo v. Bancomer, S.A., 764 F.2d 1101, 1107 n.5 (5th Cir.

1985) (“As with all suits, however, the exercise of personal jurisdiction

must comply with the due process clause.”). Both circuit courts cited

Second Circuit precedent which has since been overruled. See Texas

Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300,

308 (2d Cir. 1981), overruled by Frontera, 582 F.3d at 399.

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 25

And the original meaning of the Due Process Clause

supports the view that foreign states are not entitled to the

protection of minimum contacts.

To be fair, recent scholarship has suggested foreign

states were understood to be “persons” at the time of the

Founding. For example, one author argues that Founding-

era sources show “foreign states were viewed as ‘persons’

entitled to ‘process.’” Ingrid Wuerth, The Due Process and

Other Constitutional Rights of Foreign Nations, 88 Fordham

L. Rev. 633, 637 (2019). As an example, Emmerich de

Vattel, an influential 18th-century international law scholar,

wrote, “[t]he law of nations is the law of sovereigns: free and

independent states are moral persons, whose rights and

obligations we are to establish in this treatise.” Emmerich

de Vattel, The Law of Nations or the Principles of Natural

Law, bk. I, ch. I § 12 (1758) (Charles G. Fenwick trans.,

1916).

Another disagrees. According to this scholar, it is

“unlikely that the framers of the Fifth Amendment would

have viewed foreign states as persons given that foreign

sovereigns were treated as completely immune from suit at

the time of the founding.” Donald Earl Childress III,

Questioning the Constitutional Rights of Foreign Nations,

88 Fordham L. Rev. Online 60, 70 (2019).

But even assuming some process is due—an emerging

consensus shows that the original understanding of the Fifth

Amendment’s Due Process Clause does not require

minimum contacts for foreign states. Instead, these sources

all agree that the political branches may dictate what process

is afforded to foreign sovereigns. As Professor Wuerth

concludes, “[t]hat foreign states are protected by due process

does not tell us what the content of those protections

26 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

are[.] . . . [W]hen it comes to personal jurisdiction, due

process limitations may be largely coextensive with the

process that Congress chooses to provide.” Wuerth, supra,

at 679–86; see Stephen E. Sachs, The Unlimited Jurisdiction

of the Federal Courts, 106 Va. L. Rev. 1703, 1743 (2020)

(“The Fifth Amendment bars the execution of a federal

judgment only if the federal court lacked jurisdiction. And

Congress gets to answer th[e jurisdiction] question.”); Max

Crema & Lawrence B. Solum, The Original Meaning of

“Due Process of Law” in the Fifth Amendment, 108 Va. L.

Rev. 447, 530–31 (2022) (“Because the Due Process of Law

Clause requires process, . . . service on a defendant” may be

“sufficient to validate personal jurisdiction whether or not

the International Shoe Co. v. Washington minimum contacts

test was satisfied.” (simplified)).

Indeed, the view that Congress could legislate the

bounds of jurisdiction over foreign sovereigns finds support

in a well-known case from Justice Joseph Story. Riding

circuit in 1828, Justice Story considered whether a French

plaintiff could successfully obtain a default judgment against

a Massachusetts defendant who was living in Paris. Picquet

v. Swan, 19 F. Cas. 609, 609–10 (C.C.D. Mass. 1828)

(No. 11,134). The plaintiff argued that attaching the

Massachusetts property was a sufficient method of serving

process on the Paris-residing Massachusetts resident. Id.

Justice Story rejected the argument, concluding Congress

had not clearly chosen to authorize that kind of

extraterritorial jurisdiction and thus “there ha[d] been no

sufficient service of the process.” Id. at 613, 619. Even so,

he explained that it was well within the power of Congress

to have, “a subject of England, or France, or Russia . . .

summoned from the other end of the globe to obey our

process, and submit to the judgment of our courts.” Id.

DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD. 27

at 613. Congress need only do so clearly. Id. at 615 (“If

congress had prescribed such a rule, the court would

certainly be bound to follow it, and proceed upon the law.”).

In sum, Justice Story opined that foreign-based defendants

were owed no more than service authorized by Congress

before being haled into our federal courts.

So modern jurisprudence, tugged by the gravitational

pull of original meaning, points to excluding foreign states

from the protection of minimum contacts. Like every other

circuit court post-Weltover, we should have followed suit.

This was yet another reason to take this case en banc.

III.

Forty years ago, our court disregarded the plain language

of the FSIA to add minimum contacts to the requirements for

personal jurisdiction over a foreign state. And we did so

using questionable interpretive moves. Today, the

consensus among circuit courts squarely rejects any

constitutional basis for a minimum-contacts regime. So, yet

again, the Ninth Circuit stands alone. And when it comes to

the law, experimentation isn’t usually a virtue.

Our atextual reading creates a needless roadblock for

plaintiffs seeking to assert their rights against foreign states

and their agents. And we are simply incompetent to interfere

in these matters of foreign affairs. Imagine requiring a state

sponsor of terrorism to have minimum contacts with our

country before allowing our citizens to vindicate the death

or injury of a loved one at the hands of a terrorist. See 28

U.S.C. § 1605A. But that is the regime that the Ninth Circuit

erects.

With no constitutional provision requiring otherwise, we

should have deferred to the political branches here. FSIA

28 DEVAS MULTIMEDIA PRIVATE LTD. V. ANTRIX CORP. LTD.

plaintiffs deserve a full opportunity to litigate their cases as

Congress determined. By freelancing in this area, we do the

legislative process, separation of powers, and rule of law a

disservice.

Faced with an opportunity to correct course, we again

close the courthouse doors. And we refuse to act despite

overwhelming evidence that our position is wrong. Our

failure to fix our precedent is a serious mistake.

I respectfully dissent from the denial of rehearing en

banc.