Petition for Writ of Certiorari — Budha Jam, et al., Petitioners v. International Finance Corporation

Supreme Court briefJan 10, 2022

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No. 21-___

IN THE

BUDHA JAM, et al.,

Petitioners,

INTERNATIONAL FINANCE CORPORATION,

Respondent.

AND

MANJALIYA IKBAL, et al.,

Petitioners,

INTERNATIONAL FINANCE CORPORATION,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Richard L. Herz

Marco B. Simons

Michelle C. Harrison

Lindsay A. Bailey

EARTHRIGHTS

INTERNATIONAL

1612 K Street, N.W.

Suite 800

Washington, DC 20006

Jeffrey L. Fisher

Counsel of Record

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@stanford.edu

QUESTIONS PRESENTED

The Foreign Sovereign Immunities Act, 28 U.S.C.

§§ 1602-11, governs whether foreign sovereigns and

international organizations are subject to suit in U.S.

court. As relevant here, a covered entity is subject to

suit under the Act for any claim “based upon”

commercial activity the entity carried on in the United

States or where the entity waives immunity. Id.

§ 1605. The questions presented are:

1. Whether the commercial activity exception to

immunity allows suit where the alleged acts of the

defendant that give rise to its liability constitute

commercial activity carried on in the United States,

regardless of whether another party’s conduct more

directly caused the injury.

2. Whether a treaty provision stating that

“[a]ctions may be brought against the [international

organization]” waives the organization’s immunity.

PARTIES TO THE PROCEEDING

Petitioners, all of whom were plaintiffs below, are

Budha Ismail Jam, Sidik Kasam Jam, Ranubha

Jadeja, Navinal Panchayat, Machimar Adhikar

Sangharash Sangathan, Manjaliya Ikbal, Manjaliya

Hajraben, Parit Abedabanu, Jabedabanu Sadam

Manek and Manjaliya Harun.

Respondent, the defendant in this case, is the

International Finance Corporation.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................... i

PARTIES TO THE PROCEEDING .............................ii

TABLE OF AUTHORITIES ........................................ v

PETITION FOR A WRIT OF CERTIORARI .............. 1

OPINIONS BELOW ..................................................... 1

JURISDICTION ........................................................... 1

RELEVANT STATUTORY PROVISIONS .................. 1

INTRODUCTION......................................................... 2

STATEMENT OF THE CASE ..................................... 4

REASONS FOR GRANTING THE WRIT................. 10

This Court should resolve whether the

FSIA immunizes covered entities from

suits challenging their U.S.-based

commercial activity where the injury was

more directly caused by a third party’s

conduct ................................................................. 10

A. The D.C. Circuit’s decision creates a

split over this issue ....................................... 10

B. The D.C. Circuit’s decision conflicts

with how the Government has urged

the FSIA be interpreted ................................ 13

C. This question is extremely important .......... 15

D. This case is an excellent vehicle for

resolving this issue ........................................ 22

E. The D.C. Circuit’s interpretation of the

FSIA is incorrect............................................ 23

II. This Court should make clear that express

waivers of international organizations’

immunity should be enforced according to

their plain text ..................................................... 30

CONCLUSION ........................................................... 33

APPENDICES

Appendix A, Opinion of the U.S. Court of

Appeals for the D.C. Circuit on FSIA Issue,

July 6, 2021 .......................................................... 1a

Appendix B, Memorandum Opinion of the U.S.

District Court for the District of Columbia,

August 24, 2020 ................................................. 14a

Appendix C, Memorandum Opinion of the U.S.

District Court for the District of Columbia,

February 14, 2020.............................................. 37a

Appendix D, Opinion of the U.S. Court of

Appeals for the D.C. Circuit on Waiver

Issue, June 23, 2017 .......................................... 67a

Appendix E, Order of the U.S. Court of Appeals

for the D.C. Circuit Denying Petition for

Rehearing En Banc, August 13, 2021 ............... 89a

Appendix F, Relevant Provisions of the

International Organizations Immunities

Act, 22 U.S.C. §§ 288-288a ................................ 90a

Appendix G, Relevant Provisions of the

Foreign Sovereign Immunities Act,

22 U.S.C. §§ 1602-1606...................................... 93a

Appendix H, Statutory Provisions Related to

the International Finance Corporation,

22 U.S.C. §§ 282-282o ...................................... 105a

TABLE OF AUTHORITIES

Cases

Page(s)

African Growth Corp. v. Republic of Angola,

No. 17-2469, 2019 U.S. Dist. LEXIS 120571

(D.D.C. July 19, 2019) ......................................... 17

In re Air Crash Disaster Near Roselawn,

96 F.3d 932 (7th Cir. 1996).................................. 20

In re Air Crash near Nantucket Island, Mass.,

on Oct. 31, 1999,

392 F. Supp. 2d 461 (E.D.N.Y. 2005) .................. 20

Alfred Dunhill of London, Inc. v. Republic of

Cuba,

425 U.S. 682 (1976).......................................... 2, 26

Anglo-Iberia Underwriting Mgmt. v. P.T.

Jamsostek,

600 F.3d 171 (2d Cir. 2010) ................................. 11

Atkinson v. Inter-Am. Dev. Bank,

156 F.3d 1335 (D.C. Cir. 1998) ........................ 7, 32

Callejo v. Bancomer, S.A.,

764 F.2d 1101 (5th Cir. 1985)............ 11, 12, 13, 19

In re Cathode Ray Tube CRT Antitrust Litig.,

07-cv-05944-JST, 2020 U.S. Dist. LEXIS

67163 (N. D. Cal. March 11, 2020) ...................... 18

In re Cathode Ray Tube (CRT) Antitrust Litig.,

MDL No. 1917, 2018 U.S. Dist. LEXIS

16926 (N.D. Cal. Feb. 1, 2018) ............................ 18

Dale v. Colagiovanni,

443 F.3d 425 (5th Cir. 2006)................................ 17

De Sanchez v. Banco Cent. de Nicaragua,

770 F.2d 1385 (5th Cir. 1985).............................. 12

Exxon Mobil Corp. v. Corporación CIMEX S.A.,

No. 19-cv-01277, ___ F. Supp. 3d ___, 2021

U.S. Dist. LEXIS 75679 (D.D.C. Apr. 20,

2021) ............................................................... 16, 17

Filus v. Lot Polish Airlines,

907 F.2d 1328 (2d Cir. 1990) ............................... 20

First Nat’l City Bank v. Banco Para El

Comercio Exterior de Cuba,

462 U.S. 611 (1983).............................................. 25

GE Energy Power Conversion Fr. SAS, Corp. v.

Outokumpu Stainless USA, LLC,

140 S. Ct. 1637 (2020).......................................... 32

Global Technology, Inc. v. Yubei (XinXiang)

Power Steering System Co.,

807 F.3d 806 (6th Cir. 2015)................................ 12

Gould, Inc. v. Mitsui Mining & Smelting Co.,

947 F.2d 218 (6th Cir. 1991)................................ 25

In re Grand Jury Subpoena,

912 F.3d 623 (D.C. Cir. 2019) .............................. 22

Hertz Corp. v. Friend,

559 U.S. 77 (2010)................................................ 29

Jam v. Int’l Fin. Corp.,

139 S. Ct. 759 (2019).................................... passim

Jam v. Int’l Fin. Corp.,

172 F. Supp. 3d 104 (D.D.C. 2016) ........................ 7

Kilburn v. Socialist People’s Libyan Arab

Jamahiriya,

376 F.3d 1123 (D.C. Cir. 2004) ............................ 28

Lapides v. Bd. of Regents of Univ. Sys. of Ga.,

535 U.S. 613 (2002).............................................. 29

vii

Lutcher S.A. Celulose e Papel v. Inter-Am.

Dev. Bank,

382 F.2d 454 (D.C. Cir. 1967) .............................. 31

McGee v. Int’l Life Insur. Co.,

355 U.S. 220 (1957).............................................. 27

Mendaro v. World Bank,

717 F.2d 610 (D.C. Cir. 1983) .................. 31, 32, 33

OBB Personenverkehr AG v. Sachs,

577 U.S. 27 (2015)........................................ passim

Opati v. Republic of Sudan,

140 S. Ct. 1601 (2020).......................................... 29

Osseiran v. Int’l Fin. Corp.,

552 F.3d 836 (D.C. Cir. 2009) .............................. 31

Overseas Priv. Inv. Corp. v. Industria de Pesca,

N.A., Inc.,

920 F. Supp. 207 (D.D.C. 1996) ........................... 28

Permanent Mission of India to the United

Nations v. City of New York,

551 U.S. 193 (2007)........................................ 24, 26

Petersen Energía Inversora S.A.U. v.

Argentine Republic,

895 F.3d 194 (2nd Cir. 2018) ............. 11, 13, 14, 19

Republic of Arg. v. Weltover, Inc.,

504 U.S. 607 (1992)...................................... passim

Riedel v. Bancam, S.A.,

792 F.2d 587 (6th Cir. 1986)................................ 12

Rodriguez v. Pan American Health

Organization,

502 F. Supp. 3d 200 (D.D.C. 2020) ................ 16, 23

Rosner v. Bank of China,

528 F. Supp. 2d 419 (S.D.N.Y. 2007) .................. 17

viii

Rote v. Zel Custom Mfg. LLC,

816 F.3d 383 (6th Cir. 2016)................................ 21

Rote v. Zel Custom Mfg. LLC,

No. 2:13-cv-1189, 2015 U.S. Dist. LEXIS

16700 (S.D. Ohio Feb. 11, 2015) .......................... 21

Rubin v. Islamic Republic of Iran,

138 S. Ct. 816 (2018)............................................ 24

Samantar v. Yousuf,

560 U.S. 305 (2010).............................................. 26

Saudi Arabia v. Nelson,

507 U.S. 349 (1993)...................................... passim

Saunier v. Boeing Co.,

No. 13 C 8507, 2014 U.S. Dist. LEXIS

56616 (N.D. Ill. April 23, 2014) ........................... 20

Sea Breeze Salt, Inc. v. Mitsubishi Corp.,

No. CV 16-2345-DMG, 2016 U.S. Dist.

LEXIS 139342 (C.D. Cal. Aug. 18, 2016) ............ 18

Sheridan v. United States,

487 U.S. 392 (1988).............................................. 28

Southway Constr. Co. v. Cent. Bank of Nigeria,

198 F.3d 1210 (10th Cir. 1999)................ 12, 17, 18

Southway v. Cent. Bank of Nig.,

994 F. Supp. 1299 (D. Colo. 1998) .................. 17-18

United States v. Pangang Grp. Co., Ltd.,

6 F.4th 946 (9th Cir. 2021) .................................. 22

United States v. Turkiye Halk Bankasi A.S.,

16 F.4th 336 (2d Cir. 2021).................................. 22

Velidor v. L/P/G Benghazi,

653 F.2d 812 (3d Cir. 1981) ................................. 26

Vermeulen v. Renault, U.S.A., Inc.,

985 F.2d 1534 (11th Cir. 1993)............................ 21

Walden v. Fiore,

571 U.S. 277 (2014).......................................... 5, 27

Wultz v. Islamic Republic of Iran,

755 F. Supp. 2d 1 (D.D.C. 2010).......................... 21

Statutes

Foreign Sovereign Immunities Act, Pub. L. No.

94-583, 90 Stat. 2891 (1976), 28 U.S.C.

§ 1602 et seq................................................. passim

28 U.S.C. § 1602................................................... 24

28 U.S.C. § 1603............................................. 23, 27

28 U.S.C. § 1605........................................... passim

28 U.S.C. § 1606............................................. 24, 25

International Organizations Immunities Act,

Pub. L. No. 79-291, 59 Stat. 669, 22 U.S.C.

§ 288 et seq. (1945) ...................................... passim

22 U.S.C. § 288a........................................... passim

28 U.S.C. § 1254 ........................................................... 1

28 U.S.C. § 1330 ......................................................... 26

Treaties and Legislative Materials

Agreement Establishing the European Bank

for Reconstruction and Development art.

46, May 29, 1990, 29 I.L.M. 1077 ........................ 30

Agreement Establishing the Inter-American

Development Bank art. XI § 2, Apr. 8,

1959, 10 U.S.T. 3029............................................ 30

Agreement Establishing the Inter-American

Investment Corporation art. VII, Nov. 19,

1984, T.I.A.S. No. 12087 ...................................... 30

Articles of Agreement of the International

Bank for Reconstruction and Development

art. VII § 3, Dec. 27, 1945, 60 Stat. 1440 ............ 30

H.R. Rep. No. 94-1487 (1976) .......................... 4, 26, 27

International Finance Corporation

Articles of Agreement art. VI § 3,

Dec. 5, 1955, 7 U.S.T. 2197, 2214................. 6-7, 30

Other Authorities

Br. of the United States as Amicus Curiae,

De Csepel v. Republic of Hungary,

139 S. Ct. 784, 2018 WL 6382956 (2019) ............ 13

Br. for the United States as Amicus Curiae,

Federal Ins. Co. v. Kingdom of Saudi Arabia,

557 U.S. 935, 2009 WL 1539068 (2009) .............. 14

Br. for the United States as Amicus Curiae,

Petersen Energía Inversora S.A.U. v.

Argentine Republic,

139 S. Ct. 2741, 2019 WL 2209263 (2019) .......... 14

Br. for the United States as Amicus Curiae

Supporting Respondents, Republic of Arg.

v. Weltover, Inc., 504 U.S. 607, 1992 WL

12012096 (1992) ................................................... 29

Black’s Law Dictionary (11th ed. 2019) .................... 23

Restatement (Second) of Torts (1965) ....................... 28

U.S. Dep’t of State, Constitutionality of the

Bretton Woods Agreement Act (1945) ................ 31

PETITION FOR A WRIT OF CERTIORARI

Petitioners Budha Jam, et. al., respectfully

petition for a writ of certiorari to review the judgment

of the United States Court of Appeals for the D.C.

Circuit in Nos. 20-7092 and 20-7097.

OPINIONS BELOW

The most recent opinion of the United States

Court of Appeals for the D.C. Circuit (Pet. App. 1a13a) is published at 3 F.4th 405 (D.C. Cir. 2021). The

opinions of the district court addressing the first

question presented (Pet. App. 14a-36a, 37a-66a) are

published at 442 F. Supp. 3d 162 (D.D.C. 2020) and

481 F. Supp. 3d 1 (D.D.C. 2020), respectively. The

earlier opinion of the D.C. Circuit, addressing the

second question presented (Pet. App. 67a-88a), is

published at 860 F.3d 703 (D.C. Cir. 2017).

JURISDICTION

The opinion of the court of appeals was issued on

July 6, 2021. Pet. App. 1a. The court of appeals denied

rehearing en banc on August 13, 2021. Id. 89a. On

November 3, 2021, the Chief Justice extended the

time in which to file a petition for certiorari to and

including December 27, 2021. See No. 21A124. On

December 21, 2021, the Chief Justice extended the

deadline to January 10, 2022. See id. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

The relevant statutory provisions of the Foreign

Sovereign Immunities Act, 28 U.S.C. § 1605, and the

International Organizations Immunities Act, 22

U.S.C. § 288a, are reproduced at Pet. App. 90a-104a.

INTRODUCTION

Foreign sovereigns, international organizations

and state-owned businesses engage in all manner of

ordinary commercial activity, with ever-increasing

frequency. When they do, their immunity from suit in

the United States is governed by the Foreign

Sovereign Immunities Act (FSIA). The FSIA codified

the “restrictive theory” of immunity. As relevant

here, that theory provides that foreign sovereigns

(and other covered entities) are subject to claims

“based on” their acts in the United States “in the

course of their purely commercial operations.” Alfred

Dunhill of London, Inc. v. Republic of Cuba, 425 U.S.

682, 706 (1976); see also Republic of Arg. v. Weltover,

Inc., 504 U.S. 607, 612, 614 (1992).

Until this case, federal courts of appeals applying

the commercial activity exception to immunity had

always found that immunity turns on the nature and

location of the covered defendant’s own acts. If the

defendant’s conduct that allegedly makes it liable

was commercial activity carried on in the United

States, the defendant is not immune from suit

(though, of course, it may prevail on the merits).

Here, however, the D.C. Circuit held that even if

the covered defendant’s relevant conduct was U.S.

commercial activity, the commercial activity

exception cannot be met where the conduct that most

directly injured the plaintiff was committed by a third

party. It thus granted immunity to a sovereign that

was sued for its U.S. commercial activity, by looking

to a non-sovereign third-party’s acts.

This new split of authority requires this Court’s

intervention. The D.C. Circuit’s decision is at odds

with the text and purpose of the commercial activity

provision; dramatically alters the law applicable to

all foreign sovereigns, state-owned enterprises, and

international organizations; and will have harmful

and absurd consequences, especially for American

citizens and businesses.

In particular, sovereign entities sometimes

participate with others, through commercial conduct,

in various sorts of harmful acts, including fraud,

price-fixing, human trafficking, terrorism, breach of

contract, torts, and property expropriation. On the

merits, such sovereigns would be liable under

ordinary joint-liability theories. If, however, the FSIA

immunizes sovereigns who do not most directly cause

the harm, then states and state-owned companies

could facilitate wrongdoing from U.S. territory and

leave American citizens and businesses without

recourse. Indeed, requiring that sovereigns must

commit the most directly harmful act would

immunize them even where both the sovereign and

the third party’s conduct was commercial, and all of

the conduct occurred in the United States.

A second holding of the D.C. Circuit, declining to

enforce the express waiver of immunity in

respondent’s founding treaty on the ground that it

would not “benefit” respondent, also warrants review.

This holding conflicts with the plain text of the

International Organizations Immunities Act (IOIA),

which provides without qualification that waivers

should be enforced. The D.C. Circuit’s judicially

invented waiver-curbing doctrine also is “amorphous”

and “awkward to apply.” Pet. App. 83a, 88a (Pillard,

J., concurring). The doctrine should not be allowed to

persist—at least not without this Court’s

consideration.

STATEMENT OF THE CASE

1. The FSIA governs the immunity of foreign

sovereigns, state-owned businesses, and (by

incorporation through the IOIA) international

organizations. See 28 U.S.C. § 1605; 22 U.S.C. §

288a(b); Jam v. Int’l Fin. Corp., 139 S. Ct. 759, 76872 (2019). Under the FSIA, a sovereign is subject to

suit in any “action...... based upon,” among other

things, “a commercial activity carried on in the

United States by the [sovereign]; or upon an act

performed in the United States in connection with a

commercial activity of the [sovereign] elsewhere.” 28

U.S.C. § 1605(a)(2). This provision codifies the

principle that sovereigns and other covered entities

engaged in commercial activity are treated like, and

afforded no greater protection than, private parties.

Weltover, 504 U.S. at 612, 614. Thus, once

commercial activity is shown, Section 1605(a)(2)

operates “in effect, [as] a Federal long-arm statute”

that simply requires “minimum jurisdictional

contacts.” H.R. Rep. No. 94-1487, at 13 (1976).

2. This case arises out of a commercial project

financed by respondent, International Finance

Corporation (IFC). Headquartered in Washington,

D.C., IFC is an international organization that

provides loans in the developing world to private

corporations, at profit-generating interest rates, for

projects that otherwise would not attract “sufficient

private capital.” Pet. App. 38a. IFC comprises 185

member countries, including the United States. Id.

2a.

In 2008, IFC made a $450 million investment in

the coal-fired Tata Mundra Power Plant, located in

Gujarat, India. Pet. App. 40a.1 In accordance with

IFC’s policy to prevent social and environmental

damage, the loan agreement afforded IFC substantial

supervisory authority over the project. Id. 40a-41a.

Loan disbursement was “contingent on IFC’s

approval of the project’s construction plan.” Id. 41a.

The agreement required the borrower, Coastal

Gujarat Power Ltd., to meet “IFC’s environmental

and social requirements.” Id. Should Coastal Gujarat

fail to abide by these conditions, IFC “could revoke

[its] financial support.” Id. 69a.

According to IFC’s ombudsman, however, “the

plant’s construction and operation did not comply”

with the loan conditions meant to protect the

surrounding communities. Pet. App. 69a. And despite

knowing the harms it had predicted had materialized,

IFC continued to disburse funds. IFC failed to enforce

the contract provisions requiring Coastal Gujarat to

remediate harm and prevent further injury and has

never taken any steps to address the situation.

The result is a “dismal picture.” Pet. App. 68a n.1.

The power plant has “devastated” the local

environment and way of life. Id. 68a. Neighboring

villagers and farmers can no longer procure fresh

water because the plant’s construction caused sea

water to contaminate the aquifer. Id. 68a n.1. The

“cooling system discharges thermal pollution into the

sea, killing off marine life on which fishermen rely for

their income.” Id. And “coal dust and ash” pollute the

air. Id. 69a n.18.

Because this appeal arises from a motion to dismiss, all

allegations in the complaint must be taken as true. See, e.g.,

Walden v. Fiore, 571 U.S. 277, 281 n.2 (2014).

Neither the power plant’s construction nor its

attendant harms could have occurred without IFC’s

financing and approval of the plant’s design. All of

IFC’s decisions that contributed to these harms were

made at IFC headquarters in Washington, D.C. This

includes its decision to finance the project, despite

knowing that it posed substantial risks and would

inevitably cause irreversible harm, and its decisions

to disburse each tranche of the loan, knowing the

project did not comply with the environmental and

social conditions. IFC also supervised and approved

the plant’s negligent design and environmental and

social management from D.C. Pet. App. 3a, 33a-34a.

3. Petitioners are farmers and fishermen who live

near the plant, a trade union of fishworkers, and a

local government. Pet. App. 41a. In 2015, they sued

IFC in the United States District Court for the

District of Columbia, where IFC is domiciled. Id. 14a.

Focusing on actions IFC took in the United States,

petitioners brought claims for negligence, negligent

supervision, public and private nuisance, trespass,

and breach of contract. Id. 43a. They sought

injunctive relief or damages. Id.

Petitioners argued, for two independent reasons,

that IFC was not immune from this suit. First,

petitioners maintained that their claims are based

upon IFC’s commercial activity in the United States.

Second, petitioners noted that international

organizations “may expressly waive their immunity,”

22 U.S.C. § 288a(b), and that IFC’s founding treaty

contains an express immunity waiver: “Actions may

be brought against the Corporation . . . in a court of

competent jurisdiction in the territories of a member

in which the Corporation has an office.” IFC Articles

of Agreement art. VI § 3, Dec. 5, 1955, 7 U.S.T. 2197,

2214.2 There is only one exception (suits by member

states are expressly prohibited), id., and that

exception is inapplicable here.

The district court rejected both arguments and

dismissed petitioners’ suit on the ground that IFC

was immune under the IOIA. Jam v. Int’l Fin. Corp.,

172 F. Supp. 3d 104, 108 (D.D.C. 2016).

4. The D.C. Circuit affirmed. Applying thenbinding circuit precedent, the court of appeals held

that IFC enjoyed “virtually absolute immunity” from

suit under the IOIA, even if petitioners’ claims

satisfied the FSIA’s commercial activity exception.

Pet. App. 70a (citing Atkinson v. Inter-Am. Dev.

Bank, 156 F.3d 1335 (D.C. Cir. 1998)).

Turning to waiver, the court of appeals

acknowledged that IFC’s Articles, “read literally,

would seem to include a categorical waiver” of

immunity from suit. Pet. App. 73a. But it held that

its precedent “obliged” it to ask whether the claim

“benefits” the organization, and since, in its view, the

benefits of this type of suit would be outweighed by

the burdens, it found IFC had not waived immunity.

Id. 74a.

Judge Pillard wrote separately to argue that both

strands of D.C. Circuit precedent the panel applied

were “wrongly decided.” Pet. App. 78a (Pillard, J.,

concurring). Directing that courts “pare back an

international organization’s apparent waiver of

immunity,” according to the “amorphous” question

whether a particular lawsuit would “benefit” an

IFC’s Articles of Agreement, as amended through April

2020, are available at https://bit.ly/3EUPhyc.

organization, creates a “doctrinal tangle.” Id. 88a. It

would be far better, Judge Pillard proposed, to

determine waiver according to organizations’ own

charters and the “time-tested body of law under the

FSIA” that allows lawsuits based on commercial

activity. Id. 87a.

4. This Court granted certiorari, reversed and

remanded. The Court clarified that the IOIA grants

organizations like IFC only the restrictive immunity

codified in the FSIA, and thus IFC may be sued for its

commercial acts that fall within 28 U.S.C.

§ 1605(a)(2). Jam, 139 S. Ct. at 768-72. The Court did

not address waiver.

5. On remand in the district court, IFC again

claimed immunity, asserting that the FSIA’s

commercial activity exception is not satisfied here.

Pet. App. 45a-46a. IFC argued that claims

implicating the FSIA are “based upon” the last act in

the causal chain that harmed plaintiffs, even if not

committed by the defendant, and that petitioners’

claims are therefore based on Coastal Gujarat’s acts.

Id. 49a.

At first, the district court rejected IFC’s

arguments that petitioners’ claims against IFC are

actually “based upon” third party acts. Pet. App. 49a52a. The court nonetheless dismissed, reasoning that

petitioners did not specifically allege that IFC

committed its tortious acts in the United States or

“that approving the funding—by itself—was a

negligent act.” Id. 58a-64a.

Petitioners moved to amend their complaint to

address the district court’s concerns, or for

reconsideration based on record facts that the court

overlooked. Pet. App. 15a. Petitioners’ amendments

alleged, and the unconsidered facts showed, that

approving the loan was negligent: IFC knew that the

project, which could not have proceeded absent IFC

funding, presented serious risks, and that at least

some of those harms could not be prevented. DE 63-1

¶¶ 216-25. Petitioners also alleged that IFC

committed the acts and omissions that the district

court found to be the gravamen of the case in

Washington, D.C., including IFC’s approval of the

project’s design, supervision of project planning and

implementation, response to complaints, and

decisions to continue disbursing funds without

enforcing the protective loan provisions. Id. ¶¶ 197215, 226-51, 256-60, 266-68.

The district court then abandoned its original

holding that petitioners’ claims against IFC are based

upon IFC’s conduct. In a second opinion, the court

now reasoned that a claim is typically based on the

conduct that “actually injured” a plaintiff, even if

committed by a third party. Pet. App. 18a-19a.

Applying that test, the court held that petitioners’

claims are based upon Coastal Gujarat’s

“construction and operation” of the plant. Id. 24a. The

court then rejected Plaintiffs’ amendments as futile,

stating that the amendments “relate[d] only to IFC’s

conduct,” and adhering to its view that “IFC’s conduct

is not what the suit is based upon.” Id. 34a-35a.

6. The court of appeals affirmed. Like the district

court, the D.C. Circuit reasoned that where a nonsovereign third party’s conduct more directly caused

the plaintiff’s injury, a claim against an entity

covered by the FSIA is not based upon that

defendant’s conduct. Pet. App. 7a-11a. The court of

appeals also adhered to its earlier holding that IFC

did not waive its immunity. Id. 11a.

7. Petitioners sought rehearing en banc, but the

court of appeals denied the petition without comment.

Pet. App. 89a.

REASONS FOR GRANTING THE WRIT

This Court should resolve whether the FSIA

immunizes covered entities from suits

challenging their U.S.-based commercial

activity where the injury was more directly

caused by a third party’s conduct.

A. The D.C. Circuit’s decision creates a split

over this issue.

1. The FSIA lifts immunity where a suit is “based

upon a commercial activity carried on in the United

States by the foreign [sovereign].” 28 U.S.C.

§ 1605(a)(2). The D.C. Circuit concluded that the

sovereign’s acts must be the most direct cause of the

harm; otherwise, in its view, the claims are not “based

upon” the acts of the foreign sovereign and are

instead “based upon” “the conduct of a non-sovereign

third party.” Pet. App. 8a-9a. On this understanding

of the FSIA, it does not matter whether the

sovereign’s acts occur in the U.S. or whether they are

commercial; nor does it matter whether the third

party’s acts occur in the U.S. or whether they, too, are

commercial. If the foreign sovereign is not the most

direct cause of the plaintiff’s injury, the claim is not

“based upon” its conduct, and the plaintiff’s claim

cannot meet the commercial activity exception.

2. Every other court of appeals to have considered

cases involving multiple responsible parties

disagrees with this approach. Rather than making a

threshold determination of whether the claims are

“based upon” the defendant’s conduct or someone

else’s, the Second, Fifth, Sixth, and Tenth Circuits all

determine a sovereign’s immunity by simply

examining the acts of the sovereign upon which the

claim is grounded. If the sovereign’s relevant conduct

is commercial activity in the United States, it is not

immune. Period.

In Anglo-Iberia Underwriting Mgmt. v. P.T.

Jamsostek, 600 F.3d 171, 174 (2d Cir. 2010), for

example, the plaintiff alleged that a foreign sovereign

negligently supervised someone who committed

fraud. Even though the fraudster obviously more

directly injured the plaintiff, the Second Circuit

looked to “the act of the foreign sovereign that serves

as the basis for the plaintiff’s claim” in assessing

whether the sovereign was immune. Id. at 177.3

In Callejo v. Bancomer, S.A., 764 F.2d 1101 (5th

Cir. 1985), the Fifth Circuit held that “immunity

depends on the nature of those acts of the defendant

that form the basis of the suit”—not the acts of others.

Id. at 1109 (emphasis added). There, Mexico’s

regulations devalued American investors’ bank

deposits. Plaintiffs sued a Mexican state-owned bank

The Second Circuit has similarly held that two sovereign

entities could be sued, which was only possible because the court

did not ask which defendant was more directly responsible, let

alone hold that the other defendant was immune. See Petersen

Energía Inversora S.A.U. v. Argentine Republic, 895 F.3d 194,

205-10 (2nd Cir. 2018). Instead, applying this Court’s teaching

that courts must look to “‘the core of [the plaintiffs’] suit,’ i.e.,

‘the . . . acts that actually injured them,’” id. at 204 (quoting OBB

Personenverkehr AG v. Sachs, 577 U.S. 27, 35 (2015)), the court

assessed the gravamen of the claim against each defendant by

reference to each defendant’s own conduct.

for breach of contract. Id. at 1104. The district court

held that the suit was “based upon” Mexico’s

regulation, not the bank’s acts. Id. at 1107. But the

Fifth Circuit rejected that holding, focusing on the

defendant’s acts; the defendant bank’s breach was

“the act complained of.” Id. at 1108-09; accord De

Sanchez v. Banco Cent. de Nicaragua, 770 F.2d 1385,

1391 (5th Cir. 1985).

In Global Technology, Inc. v. Yubei (XinXiang)

Power Steering System Co., 807 F.3d 806, 814 (6th

Cir. 2015), the question was whether a sovereign

corporation was immune from a suit involving its

subsidiary’s acts. The Sixth Circuit held that the

proper analysis required first determining which acts

were attributable to the sovereign, then “whether

those acts satisfy the commercial activity exception.”

Id. The court did not ask whose conduct more directly

caused the injury. In the court’s framing, only

conduct attributable to the sovereign could be the

gravamen. Accord Riedel v. Bancam, S.A., 792 F.2d

587, 591-92 (6th Cir. 1986) (following Callejo on

similar facts).

Finally, the Tenth Circuit held in Southway

Constr. Co. v. Cent. Bank of Nigeria, 198 F.3d 1210

(10th Cir. 1999), that two Nigerian sovereign entities

were not immune for allegedly conspiring with others

to defraud U.S. investors. Id. at 1218. Although those

with a direct contractual relationship with the

plaintiff more directly caused its injuries, the court

held that the sovereign entities were not immune

from suit. Id.

3. This conflict will not resolve itself without this

Court’s intervention. The D.C. Circuit insisted here

that cases from other circuits were “distinguishable

on their facts” (though it provided no explanation for

that assertion) or were off-point because they

predated

this

Court’s

decision

OBB

Personenverkehr AG v. Sachs, 577 U.S. 27, 35-36

(2015). Pet. App. 9a. It then denied rehearing en banc

without comment. Id. 89a. But there is no real

prospect that any other court of appeals—much less

all of them—will reconsider its precedent. The Second

Circuit, for example, considered Sachs in Petersen

Energía Inversora S.A.U. v. Argentine Republic, 895

F.3d 194, 206 (2nd Cir. 2018). And in Sachs itself, this

Court relied on the Fifth Circuit’s decision cited

above, making it especially unlikely that the court

would feel any need to reconsider the issue. See

Sachs, 577 U.S. at 33-34 (citing Callejo, 764 F.2d at

1109); see also Saudi Arabia v. Nelson, 507 U.S. 349,

357 (1993) (same).

B. The D.C. Circuit’s decision conflicts with

how the Government has urged the FSIA be

interpreted.

The Government’s longstanding position has

been that sovereign immunity should be determined

by looking to the acts of the sovereign defendant, not

third parties. For example, the Government argued

to this Court in 2018 that “it is natural to understand

a U.S. court’s jurisdiction over a foreign defendant to

depend on that entity’s contacts with the United

States—and not the contacts of some other, separate

entity.” Br. of the United States as Amicus Curiae 11,

De Csepel v. Republic of Hungary, 139 S. Ct. 784,

2018 WL 6382956 (2019). Therefore, the Government

explained, an entity’s immunity “depends on the

connection between the expropriated property and

that entity’s own U.S. commercial activities.” Id.; see

also Br. for the United States as Amicus Curiae 16,

Federal Ins. Co. v. Kingdom of Saudi Arabia, 557 U.S.

935, 2009 WL 1539068 (2009) (arguing in concerted

action case that focus should be on “the foreign state’s

act or omission—not that of any third party”).

The Government has also recognized that the

gravamen of claims against different defendants

must be assessed according to each defendant’s

conduct. In Petersen Energía Inversora, the plaintiff

alleged that Argentina had harmed it by taking over

YPF, in which Petersen had invested. 895 F.3d at

207-10. The United States recognized that the

gravamen of a claim against a particular defendant

was that defendant’s wrongful conduct, so “[t]he

‘gravamen’ of Petersen’s claims against Argentina is

that Argentina violated its promise to Petersen,”

while “the ‘gravamen’ of Petersen’s claims against

YPF is that YPF violated its promise to Petersen.” Br.

for the United States as Amicus Curiae 10, Petersen

Energía Inversora S.A.U. v. Argentine Republic, 139

S. Ct. 2741, 2019 WL 2209263 (2019). Under the

decision below, however, the gravamen of both claims

would have been Argentina’s takeover because that

was the conduct that most directly injured Petersen;

YPF, a state-owned entity, would have been immune

because the claims would not be “based upon” its

conduct.

To be sure, the Department of Justice urged in

the district court that IFC should be immune from

this suit. But the State Department did not join these

statements, and the Government did not participate

at all in the court of appeals. So the earlier filing

should not be taken as agreement with the D.C.

Circuit’s ultimate decision.

C. This question is extremely important.

Under the D.C. Circuit’s holding below, the FSIA

immunizes a covered entity from suit in every case

where that entity was not the most direct cause of the

harm. Thus, as the district court foretold, the D.C.

Circuit’s rule entitles covered entities to immunity

from a “large swath” of ordinary claims—including in

“any suit in which there is an intervening cause that

occurred abroad, even if all of the defendant’s

relevant conduct occurred in the United States.” Pet.

App. 51a. Indeed, the D.C. Circuit’s rule necessarily

applies even where all of the conduct—both the thirdparty’s and the covered entity’s—is commercial

activity in the United States. This is because the suit

must be “based upon” conduct “by the [sovereign].” 28

U.S.C. § 1605(a)(2). If a court deems the gravamen of

claims against the covered entity to be a third-party’s

acts, the entity is necessarily immune—full stop—

because that conduct was not carried on by the entity.

A suit based entirely on commercial activity in the

U.S. would fail the commercial activity exception.4

Whether the FSIA’s commercial activity

exception turns on the sovereign’s own conduct when

another actor may have more directly caused the

plaintiff’s injuries has significant implications for

individuals, businesses, international organizations,

To be sure, the D.C. Circuit stated that the commercial

activity exception did not apply here because “the gravamen of

appellants’ complaint is injurious activity that occurred in

India.” Pet. App. 2a (emphasis added). But if the D.C. Circuit

were correct that the gravamen is “the operation of the Plant,”

id. 7a, the location of that conduct is irrelevant. The sovereign

defendant, IFC, did not operate the Plant, and therefore no suit

could be “based upon” IFC’s conduct regardless of where that

operation occurred—even if the Plant were in the United States.

foreign governments and state-owned enterprises.

Whenever multiple entities act together to commit a

wrong, only one (at most) could be sued. The result

would be that a wide range of ordinary joint-liability

claims against FSIA-covered entities would suddenly

be barred. Pet. App. 51a.

For example:

• Human trafficking/forced labor. In Rodriguez v.

Pan American Health Organization, 502 F. Supp. 3d

200 (D.D.C. 2020), plaintiffs sued an international

organization for facilitating forced labor by

transferring payments for the labor to Cuba, just like

a bank. Id. at 214-15. The organization argued the

gravamen was Cuba’s conduct, since the forced labor

“actually injured” the plaintiffs. Id. at 215-16. But the

court held that the claim against the organization

was based on the organization’s conduct that

facilitated Cuba’s forced labor. Id. at 214, 216-17.

Under the D.C. Circuit’s new test, only the actor that

actually committed forced labor could be liable.

• Expropriation/property seizure. Sovereign

entities sometimes aid illegal property seizures or

traffic in such property. Under the D.C. Circuit test,

none of these sovereigns would be liable for their

actions—leaving Americans without redress when

their property is stolen, even if a sovereign benefits

from that theft.

For instance, in Exxon Mobil Corp. v.

Corporación CIMEX S.A., No. 19-cv-01277, ___ F.

Supp. 3d ___, 2021 U.S. Dist. LEXIS 75679 (D.D.C.

Apr. 20, 2021), Exxon sued a Cuban sovereign

enterprise, CIMEX, for trafficking and profiting from

American property that Cuba expropriated. Id. at *210. The district court held that because the

expropriation “alone would not ‘entitle a plaintiff to

relief’” against CIMEX, the gravamen of the claim

against CIMEX was CIMEX’s trafficking—the

conduct for which CIMEX was sued. Id. at *26

(quoting Sachs, 577 U.S. at 33). But under the D.C.

Circuit test, only the initial theft would form the

gravamen of these claims; the sovereign defendants

would be immune for the subsequent trafficking

because it was not what “actually injured” Exxon.

Similarly, in African Growth Corporation v.

Republic of Angola, No. 17-2469, 2019 U.S. Dist.

LEXIS 120571 (D.D.C. July 19, 2019), the plaintiff

sued individuals for seizing its properties and Angola

for permitting the seizures and denying it due

process. The district court held that the gravamen of

the claims against Angola was Angola’s activities. Id.

at *10-12.

• Fraud. Sovereign entities sometimes aid

others’ fraud. Indeed, examples abound. E.g. Dale v.

Colagiovanni, 443 F.3d 425, 428-29 (5th Cir. 2006)

(alleging Vatican’s agent conspired in massive

scheme to defraud American insurers); Rosner v.

Bank of China, 528 F. Supp. 2d 419, 424-25 (S.D.N.Y.

2007) (sovereign bank allegedly facilitating removal

of stolen funds from the U.S.). Americans are

regularly injured by such schemes. Yet under the

D.C. Circuit’s rule, the sovereign would get off scotfree.

Take Southway Construction Company, where

two Nigerian sovereign defendants allegedly

schemed, along with other, more direct perpetrators,

to defraud Colorado investors. 198 F.3d at 1212-13;

see supra at 12. The foreign sovereigns never directly

contacted the defrauded plaintiffs. Southway v. Cent.

Bank of Nig., 994 F. Supp. 1299, 1303-04 (D. Colo.

1998). Accordingly, the activity that most directly

harmed the plaintiffs was committed by a third party.

Yet the Tenth Circuit concluded that the action was

based upon the sovereigns’ acts and the sovereigns

were not immune. 198 F.3d at 1217-18. These claims

would not survive the D.C. Circuit’s test.

• Price Fixing. State-owned enterprises

sometimes conspire to fix prices. For example, in In

re Cathode Ray Tube (CRT) Antitrust Litig., MDL

No. 1917, 2018 U.S. Dist. LEXIS 16926 (N.D. Cal.

Feb. 1, 2018), a Chinese sovereign enterprise

conspired with non-sovereign entities to fix television

parts prices. Id. at *56-61. The conspiracy “allegedly

resulted in overcharges of billions of U.S. dollars to

[U.S.] companies.” In re Cathode Ray Tube CRT

Antitrust Litig., 07-cv-05944-JST, 2020 U.S. Dist.

LEXIS 67163, *1 (N. D. Cal. March 11, 2020). The

court looked to “the anticompetitive behavior of the

[sovereign] Defendants, as part of the broader

conspiracy,” 2018 U.S. Dist. LEXIS 16926, at *73

(emphasis added), and that behavior was commercial

activity with an effect on the United States. Id. at

*69-75. And in Sea Breeze Salt, Inc. v. Mitsubishi

Corp., No. CV 16-2345-DMG, 2016 U.S. Dist. LEXIS

139342 (C.D. Cal. Aug. 18, 2016), a Mexican stateowned business conspired to fix salt prices and the

court looked to the “[sovereign’s] alleged price-fixing.”

Id. at *8-9 (emphasis added).

Neither court followed the D.C. Circuit’s rule and

considered whether a co-conspirator more directly

injured the plaintiff. Indeed, that would be a near

impossible task in a conspiracy, which, by definition,

requires collective action, but typically involves

different conduct by each participant. In the pricefixing context, for example, would courts focus on the

conspiracy’s mastermind? The actor that sold the

goods to the plaintiff? Or perhaps the actor with the

biggest market share, that had the greatest effect on

the price? Looking at the defendant’s actions is a

much clearer rule, and led to both of these sovereigns

facing liability for their participation in the

conspiracy.

• Contracts. Sovereign entities frequently

contract with American businesses. Where, for

instance, non-contracting parties induce a breach,

multiple parties could be liable under ordinary

contract principles. Courts have allowed businesses

to seek redress, and have not tried to identify a single

wrongful commercial act as the only one claims could

be based upon. See, e.g., Callejo, 764 F.2d at 1109.

Thus, in Petersen Energía Inversora, Argentina

expropriated investors’ shares in a petroleum

company, YPF, which thereby became a state entity.

895 F.3d at 207-10. Investors brought breach-ofcontract claims against Argentina and YPF. While

defendants argued that the breach was caused by

Argentina’s expropriation, which was what directly

injured the plaintiffs, the court analyzed each party’s

acts separately, and found both entities could be sued.

Id. at 207-11. Under the decision below, the court

would have had to determine which party most

directly injured the investors; only claims against

that party could proceed.

• Aircraft Accidents. In Sachs, Chief Justice

Roberts asked: if there was negligence in aircraft

maintenance in the United States that caused a

rough landing and injuries abroad, would there then

be two gravamina? Tr. of Oral Arg at 14:5-17:4, OBB

Personenverkehr AG v. Sachs, 577 U.S. 27 (2015).

Similar cases involving multiple actors are not

hypothetical. Plaintiffs in air crash cases have sued

both the manufacturer for defects in the plane and

the airline, where the airline was state-owned,

Saunier v. Boeing Co., No. 13 C 8507, 2014 U.S. Dist.

LEXIS 56616, *2 (N.D. Ill. April 23, 2014); In re Air

Crash near Nantucket Island, Mass., on Oct. 31,

1999, 392 F. Supp. 2d 461, 466 (E.D.N.Y. 2005), and

conversely, where the manufacturer was stateowned, In re Air Crash Disaster Near Roselawn, 96

F.3d 932, 935 (7th Cir. 1996). And in Filus v. Lot

Polish Airlines, 907 F.2d 1328, 1329 (2d Cir. 1990),

plaintiffs sued an airline, airline maintenance

companies, and the manufacturer—each for its own

negligence—where all of the companies were

sovereign entities of two different countries.

Under the decision below, courts would have to

determine which conduct the claim was really based

on—the manufacture or the airline’s acts? But such

cases necessarily involve different gravamina for

different defendants. Courts have focused on the

plaintiffs’ actual theory of liability, and that

defendant’s allegedly wrongful act. Filus, 907 F.2d at

1333 (looking at USSR activities to assess immunity,

not other entities’).

• Products Liability. State-owned enterprises

also manufacture and sell commercial goods. This is

commercial activity, so when these goods injure

Americans, sovereign sellers and manufacturers

should be liable to the same extent as private parties.

These cases typically involve multiple sovereign and

private defendants, including the manufacturer and

the seller. E.g. Vermeulen v. Renault, U.S.A., Inc.,

985 F.2d 1534, 1543-44 (11th Cir. 1993) (denying

immunity for French sovereign manufacturer). Thus,

in Rote v. Zel Custom Mfg. LLC, No. 2:13-cv-1189,

2015 U.S. Dist. LEXIS 16700, *4-5 (S.D. Ohio Feb. 11,

2015), a plaintiff injured by an exploding rifle round

sued, among others, the gun manufacturer, the gun

seller, the ammunition manufacturer and the

ammunition seller. The sovereign ammunition

manufacturer was not immune. Rote v. Zel Custom

Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016).

No court has ever zeroed in on one actor in the

supply chain as the “actual cause” of the harm,

leaving other defendants immune. As the district

court

acknowledged,

parsing

whether

the

manufacturer or the seller actually injured the victim

would be “difficult”; both “might bear similar levels of

responsibility.” Pet. App. 29a.

• Terrorism. State-owned entities have been

accused of abetting terrorism. For instance, in Wultz

v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 18

(D.D.C. 2010), the Bank of China’s U.S. branches

transferred millions of dollars for members of

Palestinian Islamic Jihad, which allegedly facilitated

terrorist attacks in Israel, including the restaurant

bombing that killed plaintiffs’ decedent. Under the

decision below, a state-owned entity would be

immune from claims for aiding terrorism through

U.S. commercial activity, because the terrorists’ acts

“actually injured” plaintiffs.

• Criminal Cases. The decision below could even

hamstring the Government’s prosecutions of covered

entities engaged in criminal conspiracies or other

joint-criminal activity. Courts have not settled

whether the FSIA applies to criminal prosecutions,

but some circuits have decided cases on the

assumption that it does. United States v. Turkiye

Halk Bankasi A.S., 16 F.4th 336, 347-48 (2d Cir.

2021); United States v. Pangang Grp. Co., Ltd., 6

F.4th 946, 954 (9th Cir. 2021); In re Grand Jury

Subpoena, 912 F.3d 623, 625, 627 (D.C. Cir. 2019). If

that assumption is correct, the decision below would

immunize crimes that harm our national security.

For instance, in Turkiye Halk Bankasi, a stateowned bank allegedly conspired with others to evade

U.S. sanctions by helping Iran launder billions of

dollars. 16 F.4th at 341. The decision below would

have courts determine which co-conspirator most

directly caused the sanctions evasion. Instead, the

Second Circuit found Halkbank was not immune

based on its own contributions to the conspiracy. Id.

at 347-50; see also, e.g., Pangang Grp. Co., 6 F.4th at

950-51 (addressing under FSIA prosecution of

Chinese state-owned companies for conspiracy to

commit economic espionage by stealing U.S.

company’s trade secrets).

D. This case is an excellent vehicle for

resolving this issue.

The FSIA question presented here is outcomedeterminative of whether IFC is immune from this

suit. Petitioners sued IFC for negligently funding a

private project and approving the plant’s dangerous

design. Those allegations meet both of Section

1605(a)(2)’s requirements: IFC’s conduct is

commercial, and it occurred here.

1. Acts are “commercial” if they are “the type of

actions by which a private party engages in . . .

commerce.” Weltover, 504 U.S. at 614 (internal

quotations and emphasis omitted). Loaning money

through a commercial contract, at market-based

interest rates, to a private entity is commercial

activity. See Rodriguez, 502 F. Supp. 3d at 214

(finding acting like a bank was commercial). So is

approving a business partner’s design. Indeed, IFC

told this Court that it “employ[s] traditional financial

tools” and “cannot take sovereign acts.” Br. for

Respondent at 58, Jam v. Int’l Fin. Corp., 139 S. Ct.

759 (2019).

2. IFC’s commercial activity also had “substantial

contact with the United States.” 28 U.S.C. § 1603(e).

IFC has never disputed that it committed the conduct

petitioners challenge at its D.C. headquarters. Supra

at 6.

E. The D.C. Circuit’s interpretation of the

FSIA is incorrect.

The decision below conflicts with the FSIA’s plain

text and obvious purpose. The FSIA does not ask

courts to compare multiple tortfeasors’ relative

responsibility nor require that the defendant be the

most direct cause of the harm. Instead, immunity

turns simply on the nature and location of the

“actions that the foreign state performs” (or

performed). Weltover, 504 U.S. at 614.

1. Text.

a. The commercial activity exception denies

immunity where “the action is based upon a

commercial activity carried on in the United States

by the foreign state.” 28 U.S.C. § 1605(a)(2) (emphasis

added). An “action” is short for a “cause of action”—

that is, “[a] legal theory of a lawsuit.” Cause of Action,

Black’s Law Dictionary (11th ed. 2019). The FSIA’s

focus on the “action,” as the plaintiff frames it, thus

dictates that covered defendants are subject to suit

when their acts upon which their liability is alleged

constitute U.S. commercial activity.

The FSIA does not impose any additional

requirement that the covered defendant must be the

actor that most directly caused the plaintiff’s injury.

Indeed, in the words of a neighboring section of the

FSIA, covered entities “are not immune from the

jurisdiction of foreign courts insofar as their

commercial activities are concerned.” 28 U.S.C.

§ 1602 (emphasis added). And courts cannot add

“unexpressed requirement[s]” to this test. Weltover,

504 U.S. at 618.

The D.C. Circuit never engaged with the import

of the word “action.” And it treated Section 1602 as

just an aside about international law. Pet. App. 9a10a. But the commercial activity exception codifies

international law, Permanent Mission of India to the

United Nations v. City of New York, 551 U.S. 193, 199

(2007). Indeed, Section 1602 states the FSIA’s “focus.”

Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 825

(2018). Section 1602 confirms what is apparent in

Section 1605: Immunity turns on the sovereign’s own

acts, not on whether another actor more directly

harmed the plaintiff.

b. The D.C Circuit’s rule also flouts Section 1606.

That provision states that sovereigns “shall be liable

in the same manner and to the same extent as a

private individual under like circumstances.” But the

decision below shields sovereigns from whole

categories of ordinary joint-liability claims commonly

brought against private parties. See supra at 15-22.

The court of appeals thought that because Section

1606 applies to claims for which a sovereign “is not

entitled to immunity,” it is irrelevant. Pet. App. 10a.

But Section 1606 shows that the FSIA “was not

intended to affect the substantive law” governing

sovereigns, First Nat’l City Bank v. Banco Para El

Comercio Exterior de Cuba, 462 U.S. 611, 620 (1983),

and the court’s approach impermissibly does exactly

that. If Congress intended the FSIA to radically limit

the liability rules that apply to sovereigns, it would

not have expressly stated that ordinary liability rules

apply.

c. Contrary to the D.C. Circuit’s assertion (Pet.

App. 9a), focusing on defendant’s conduct does not

read “based upon” out of Section 1605. That language

ensures that there is a connection between the

sovereign’s commercial activity in the U.S. and the

activity for which the sovereign was sued: “Proof that

defendants were involved on another occasion in the

United States in commercial activity that has no

connection with, or relationship to, the conduct which

gave rise to plaintiff's cause of action will not suffice.”

Gould, Inc. v. Mitsui Mining & Smelting Co., 947 F.2d

218, 221 (6th Cir. 1991). In other words, the “based

upon” provision answers the question of which of the

sovereign defendant’s acts must be commercial

conduct with a U.S. nexus: the acts upon which the

action is based. It weeds out cases where the

sovereign engaged in some U.S. commercial conduct,

but the core of the sovereign’s actionable conduct is

non-commercial, see Nelson, 507 U.S. 349, or has no

nexus to the United States, see Sachs, 577 U.S. 27.5

Neither of those scenarios is present here.

2. Purpose. The D.C. Circuit’s holding also

thwarts the FSIA’s purpose. Congress enacted the

FSIA to codify the “restrictive” view of sovereign

immunity that the State Department had adopted.

Permanent Mission of India, 551 U.S. at 199. The

State Department’s position was that foreign states’

commercial activities “‘do not give rise to sovereign

immunity.’” Alfred Dunhill of London, Inc., 425 U.S.

at 698 (quoting Letter of Monroe Leigh, November 26,

1975); accord Samantar v. Yousuf, 560 U.S. 305, 31213 (2010). There was no exception for commercial acts

committed with others.

The D.C. Circuit’s rule similarly frustrates the

FSIA’s operation as a proxy for personal jurisdiction.

Personal jurisdiction over a covered entity is present

whenever subject-matter jurisdiction is satisfied. 28

U.S.C. § 1330(b). The commercial activity exception

accordingly functions as a “basic long-arm provision

for obtaining personal jurisdiction.” Velidor v. L/P/G

Benghazi, 653 F.2d 812, 817 (3d Cir. 1981); accord

H.R. Rep. No. 94-1487, at 13 (1976) (noting that the

immunity exceptions of Sections 1605-07 “prescribe

the necessary contacts which must exist before our

courts can exercise personal jurisdiction”). Indeed,

the FSIA’s requirement that a claim be “based upon”

the sovereign’s commercial activity that has

Sachs and Nelson addressed not whose acts were the basis

of the suit, but which of the sovereign’s acts were. See Sachs,

577 U.S. at 35-36 (finding gravamen of personal injury suit was

defendant’s management of a railway, not its ticket sale);

Nelson, 507 U.S. at 358, 361-63 (finding claim based on

sovereign’s torture, not its hiring).

“substantial contact” with the United States, 28

U.S.C. §§ 1603(e); 1605(a)(2); Nelson, 507 U.S. at 356

(quoting 28 U.S.C. § 1605(a)(2)), mirrors the test for

specific jurisdiction. See McGee v. Int’l Life Insur.

Co., 355 U.S. 220, 223 (1957) (noting due process met

for suit “based on” contract with “substantial

connection” to the forum); H.R. Rep. No. 94-1487, at

13 (1976) (citing, inter alia, McGee, 355 U.S. at 223).

Yet, contrary to the D.C. Circuit’s rule, personal

jurisdiction inquiries ask simply whether a

“defendant’s suit-related conduct” has a “substantial

connection” to the forum. Walden v. Fiore, 571 U.S.

277, 284 (2014). A “third person[’s]” acts are “not an

appropriate consideration.” Id. (quotation marks

omitted).

The appeals court noted that Sachs did not apply

a personal jurisdiction-like approach. Pet. App. 10a.

But Sachs decided which of defendant’s acts counted.

That is consistent with personal jurisdiction’s focus

on the defendant’s conduct. Sachs did not address

whether the “based upon” provision’s personal

jurisdiction foundation

forecloses predicating

immunity on third-party acts.

3. Precedent. The D.C. Circuit’s holding that the

gravamen is a third-party’s conduct conflicts with

this Court’s precedent—specifically, its elementsbased approach to the commercial activity

exception—and the ordinary joint-liability principles

that approach embodies. The court of appeals thought

courts determine what conduct the claim is based on

in some metaphysical sense, without reference to the

defendant or the claim against it. Pet. App. 7a-9a. But

courts must to look to “those elements of [the] claim

that, if proven, would entitle [the] plaintiff to relief

under his theory of the case.” Nelson, 507 U.S. at 357;

accord Sachs, 577 U.S. at 33-34. A claim’s elements

are keyed to—and thus the claim is “based” on—the

defendant’s conduct that allegedly makes the

defendant liable, not any third-parties’ acts.

Indeed,

under

traditional

joint-liability

“theor[ies] of the case,” joint-tortfeasors are liable for

their own conduct. See, e.g., Restatement (Second) of

Torts (hereinafter “Restatement”) §§ 302, 302A, 302B

& cmt. H, 876 (1965). Conspiracy and aiding and

abetting claims, for example, hold defendants liable

for their concerted action with the direct perpetrator.

Restatement § 876; Overseas Priv. Inv. Corp. v.

Industria de Pesca, N.A., Inc., 920 F. Supp. 207, 210

(D.D.C. 1996) (gravamen of aiding and abetting is

defendant’s assistance to another’s breach). Likewise,

defendants are liable for their own negligence that

“allowed [someone else’s] foreseeable [tort].”

Sheridan v. United States, 487 U.S. 392, 401 (1988).

Such cases involve “two tortious acts”: the directly

harmful conduct, and the acts of others who allowed

it to occur. Id. at 398, 403; accord Restatement §§ 44749 (explaining that negligent or tortious acts of third

party do not absolve another negligent party of

liability). Thus, each defendant’s conduct is the basis

of the claim against that defendant.

Of course, a sovereign’s conduct can be too

attenuated from the harm for liability. But such cases

should fail on the merits. Kilburn v. Socialist People’s

Libyan Arab Jamahiriya, 376 F.3d 1123, 1129 (D.C.

Cir. 2004). That is, if a plaintiff seeks recovery based

on conduct that is too remote from its injuries, then a

court can dismiss the case for lack of causation or the

like. But the FSIA provides no basis for dismissing

such claims on the ground of immunity.

4. Administrability. This Court has admonished

that “jurisdictional rules should be clear.” Lapides v.

Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 621

(2002). Courts “place primary weight upon the need

for judicial administration . . . to remain as simple as

possible.” Hertz Corp. v. Friend, 559 U.S. 77, 80

(2010). Indeed, the FSIA was passed in part because

the immunity rules were unclear. Opati v. Republic

of Sudan, 140 S. Ct. 1601, 1605 (2020). The State

Department likewise supports “clear, reasonable, and

workable [immunity] rule[s]” rather than “uncertain

ad hoc inquir[ies].” Br. for the United States as

Amicus Curiae Supporting Respondents 11,

Weltover, 504 U.S. 607, 1992 WL 12012096 (1992).

The D.C. Circuit’s approach is anything but clear

or simple. Conducting some undefined comparative

analysis of two or more responsible parties’ conduct

to determine whether the claim is really “based upon”

a third party’s conduct rather than the defendant’s

would be complex and indefinite. In fact, the district

court acknowledged that where multiple parties

“bear similar levels of responsibility,” “it would be

difficult to discern” whose conduct is the gravamen.

Pet. App. 29a. This is no way to conduct a threshold

jurisdictional inquiry. Better to stick with the FSIA’s

plain directive to focus exclusively on the named

defendant’s alleged conduct, and to let substantive

law, joint-liability, and other doctrines sort out the

rest on the merits.

II. This Court should make clear that express

waivers

international

organizations’

immunity should be enforced according to their

plain text.

This Court’s intervention is separately warranted

because the D.C. Circuit’s judicially-created test for

determining whether an organization has waived its

immunity conflicts with the plain text of the IOIA.

This issue affects a number of organizations,

including IFC, with express waivers in their founding

treaties. And it overwhelmingly arises in the D.C.

Circuit, where many international organizations are

based. The issue is too important to be left to D.C.

Circuit precedent that even that court concedes “is a

bit strange,” Pet. App. 74a, and that “lacks a sound

legal foundation and is awkward to apply,” id. 83a

(Pillard, J., concurring).

1. All international organizations have founding

agreements that reflect their member states’

judgment as to the immunities the organization

needs. Like several other international organizations,

IFC’s Articles state that “[a]ctions may be brought

against the Corporation.” IFC Articles of Agreement

art. VI § 3.6 This provision prohibits suits by member

states, but the “broad language” otherwise “contain[s]

See also, e.g., Agreement Establishing the European Bank

for Reconstruction and Development art. 46, May 29, 1990, 29

I.L.M. 1077; Agreement Establishing the Inter-American

Investment Corporation art. VII, Nov. 19, 1984, T.I.A.S. No.

12087;

Agreement

Establishing

the

Inter-American

Development Bank art. XI § 2, Apr. 8, 1959, 10 U.S.T. 3029;

Articles of Agreement of the International Bank for

Reconstruction and Development art. VII § 3, Dec. 27, 1945, 60

Stat. 1440.

no exceptions.” Osseiran v. Int’l Fin. Corp., 552 F.3d

836, 839-40 (D.C. Cir. 2009).

Where, as here, a treaty plainly waives

immunity, that express waiver must be honored. The

IOIA provides in no uncertain terms that

international organizations “may expressly waive

their immunity.” 22 U.S.C. § 288a(b). Consequently,

when the D.C. Circuit first addressed a treaty waiver

like the one at issue here, it held that the plain text

waived immunity “in broad terms,” allowing suit by

anyone except member states. Lutcher S.A. Celulose

e Papel v. Inter-Am. Dev. Bank, 382 F.2d 454, 457

(D.C. Cir. 1967). And the D.C. Circuit acknowledged

in this case that “read literally,” the provision “would

seem to include a categorical waiver.” Pet. App. 73a.

That is consistent with how the State Department

read identical language when it was originally

drafted, noting the World Bank “will be subject to a

suit.” U.S. Dep’t of State, Constitutionality of the

Bretton Woods Agreement Act 90 (1945).

But instead of continuing after Lutcher to enforce

treaty waivers according to their terms, the D.C.

Circuit subsequently gave itself the power, where it

deemed it advisable, to “read a qualifier into” treaty

language, Osseiran, 552 F.3d at 839. In Mendaro v.

World Bank, 717 F.2d 610 (D.C. Cir. 1983), the D.C.

Circuit held that it would not enforce waivers unless

the organization would receive a “corresponding

benefit” from being subject to suit. Id. at 617. And the

court of appeals applied that limitation here, refusing

to enforce IFC’s waiver because it did not believe this

is “the type of suit by the type of plaintiff that would

benefit the organization over the long term.” Pet.

App. 73a (quotation marks and emphasis omitted);

see also, e.g., Atkinson, 156 F.3d at 1338-39 (same).

The IOIA’s approval of “express[] waive[rs],” 22

U.S.C. § 288a(b), precludes such judicial

policymaking. The statute contains no exception

allowing U.S. judges to second-guess treaties’

drafters and decline to apply an express waiver where

they believe that the suit will not “benefit” the

organization. Instead, the ordinary rules of treaty

construction apply. And under those rules, a treaty’s

plain text controls. See, e.g., GE Energy Power

Conversion Fr. SAS, Corp. v. Outokumpu Stainless

USA, LLC, 140 S. Ct. 1637, 1645 (2020).

In short, the D.C. Circuit’s “corresponding

benefit” test is a relic from an age when courts felt

more free to depart from text. The court of appeals

breezed past the waiver’s plain text to what it

believed to be immunity’s “underlying purposes,”

Mendaro, 717 F.2d at 615, and assumed the drafters

were careless, suggesting the plain text would result

in “inadvertent[]” waiver. Id. at 617. We now know

this methodology is untenable. The drafters’ purpose

is generally “expressed by the ordinary meaning of

the words used.” Jam, 139 S. Ct. at 769 (quotation

marks omitted). What’s more, organizations’

assessments of costs and benefits “are more reliably

reflected in their charters and policies—here, in the

broad waiver included in IFC’s Articles of

Agreement—than in their litigation positions

defending against pending claims.” Pet. App. 85a

(Pillard, J., concurring).

2. Review is especially warranted because the

D.C. Circuit’s waiver test makes no sense after this

Court’s decision in Jam. The D.C. Circuit crafted its

test under the erroneous assumption that the IOIA

confers absolute immunity. Against that backdrop,

the court of appeals reasoned that the key goal of

waiver was to permit claims regarding “commercial

transactions.” Pet. App. 74a; Mendaro, 717 F.2d at

618. If counterparties could not enforce the

organizations’ contracts, the reasoning went, they

would be less likely to contract at all; immunity would

“hobble its ability to perform the ordinary activities

of a financial institution operating in the commercial

marketplace.” Mendaro, 717 F.2d at 618.

But this Court’s holding that IOIA immunity is

not absolute, but instead mirrors sovereign

immunity, Jam, 139 S. Ct. at 768-72, makes tailoring

waiver to such commercial interests unnecessary. See

Pet. App. 87a (Pillard, J., concurring). The FSIA

contains a commercial activities exception, which

addresses any concerns about organizations’ ability to

contract. Nevertheless, the D.C. Circuit has

steadfastly clung to its “corresponding benefit” test,

even after this Court rejected its absolute immunity

rule. Id. 11a. Now that this Court has knocked the

pins out from under the “corresponding benefit” test,

this Court should assess whether the D.C. Circuit’s

test is warranted.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,