Petition for Writ of Certiorari — CC/Devas (Mauritius) Limited, et al., Petitioners v. Antrix Corp. Ltd., et al.

No.

IN THE

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CC/DEVAS (MAURITIUS) LIMITED; DEVAS MULTIMEDIA

AMERICA, INC.; DEVAS EMPLOYEES MAURITIUS

PRIVATE LIMITED; TELCOM DEVAS MAURITIUS

LIMITED,

Petitioners,

v.

ANTRIX CORP. LTD.;

DEVAS MULTIMEDIA PRIVATE LIMITED,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

ANNE CHAMPION

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

MATTHEW D. MCGILL

Counsel of Record

JACOB T. SPENCER

DAVID W. CASAZZA

BRIAN C. MCCARTY

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, DC 20036

(202) 887-3680

mmcgill@gibsondunn.com

Counsel for Petitioners

QUESTION PRESENTED

Whether plaintiffs must prove minimum contacts

before federal courts may assert personal jurisdiction

over foreign states sued under the Foreign Sovereign

Immunities Act.

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 DISCLOSURE STATEMENT

1. Petitioners are CC/Devas (Mauritius) Limited;

Devas Multimedia America, Inc.; Devas Employees

Mauritius Private Limited; and Telcom Devas Mauritius Limited. Petitioners were Intervenors-Plaintiffs

in the district court, Appellees-Intervenors in Ninth

Circuit No. 20-36024, and Intervenors-Plaintiffs-Appellees in Ninth Circuit Nos. 22-35085 and 22-35103.

2. Respondents are Antrix Corp. Ltd. and Devas

Multimedia Private Limited. Respondent Antrix

Corp. Ltd. was a Respondent in the district court, a

Respondent-Appellant in Ninth Circuit Nos. 20-36024

and 22-35103, and a non-appearing Respondent in

Ninth Circuit No. 22-35085. Respondent Devas Multimedia Private Limited was a Petitioner in the district court, a Petitioner-Appellee in Ninth Circuit No.

20-36024, a Petitioner-Appellant in Ninth Circuit No.

22-35085, and a non-appearing Petitioner in Ninth

Circuit No. 22-35103.

3. Petitioner CC/Devas (Mauritius) Ltd. is substantially owned by Columbia Equity Partners IV

(QP), L.P.; Columbia Capital Equity Partners IV

(QPCO), L.P.; and Columbia Capital Employee Investors IV, L.P. Petitioner Devas Multimedia America,

Inc. is a wholly owned subsidiary of Respondent Devas

Multimedia Private Ltd. Petitioner Devas Employees

Mauritius Private Limited is a wholly owned subsidiary of Devas Employees Fund US LLC. Petitioner

Telcom Devas Mauritius Limited is a wholly owned

subsidiary of Telcom Devas LLC.

iii

RELATED PROCEEDINGS

United States District Court (W.D. Wash.):

Devas Multimedia Private Ltd. v. Antrix Corp.

Ltd.,

No. 2:18-cv-01360-TSZ (Nov. 4, 2020)

(judgment confirming arbitral award)

Devas Multimedia Private Ltd. v. Antrix Corp.

Ltd.,

No. 2:18-cv-01360-TSZ (Jan. 3, 2022)

(order granting leave to register the judgment in the Eastern District of Virginia)

United States Court of Appeals (9th Cir.):

Devas Multimedia Private Limited v. Antrix

Corp. Ltd.,

No. 20-36024 (Aug. 1, 2023)

(judgment reversing confirmation of arbitral

award)

Devas Multimedia Private Limited v. Antrix

Corp. Ltd.,

No. 22-35085 (Aug. 1, 2023) (judgment reversing confirmation of arbitral award)

Devas Multimedia Private Limited v. Antrix

Corp. Ltd.,

No. 22-35103 (Aug. 1, 2023) (judgment reversing confirmation of arbitral award)

Supreme Court of the United States

Devas Multimedia Private Limited v. Antrix

Corp. Ltd.,

No. 23A966 (Apr. 30, 2024) (order granting

application of Devas Multimedia Private

Limited to extend time to file petition for certiorari)

iv

United States District Court (E.D. Va.)

Devas Multimedia Private Ltd. v. Antrix Corp.

Ltd.,

No. 1:22-mc-00003-RDA-JFA (July 29, 2022)

(ordering garnished sums to be tendered to

Petitioner Devas Multimedia America, Inc.)

v

TABLE OF CONTENTS

Page

QUESTION PRESENTED...........................................i

PARTIES TO THE PROCEEDING AND

RULE 29.6 DISCLOSURE STATEMENT ........... ii

RELATED PROCEEDINGS ..................................... iii

TABLE OF APPENDICES .......................................vii

TABLE OF AUTHORITIES .................................... viii

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

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

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

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................... 1

STATEMENT .............................................................. 2

REASONS FOR GRANTING THE PETITION ....... 10

I. The Decision Below Conflicts With Those Of

Every Other Court Of Appeals That Has

Addressed The Issue. ........................................... 10

II. The Decision Below Is Wrong. ............................. 14

A. The FSIA does not require a showing of

minimum contacts. ......................................... 14

B. Foreign states do not have a

constitutional due-process right to a

minimum-contacts analysis. .......................... 17

III. This Case Is An Appropriate Vehicle To

Resolve This Important And Recurring

Question. .............................................................. 20

A. The petition raises an important and

recurring issue. ............................................... 20

vi

B. This case squarely and cleanly presents

this issue for the Court’s review. ................... 24

CONCLUSION .......................................................... 26

vii

TABLE OF APPENDICES

Page

Appendix A: Opinion of the United States Court of

Appeals for the Ninth Circuit (Aug. 1, 2023) ...... 1a

Appendix B: Order of the United States District

Court for the Western District of Washington

Denying Motion to Dismiss (Apr. 16, 2019) ...... 13a

Appendix C: Order of the United States District

Court for the Western District of Washington

Confirming Arbitral Award (Oct. 27, 2020) ...... 17a

Appendix D: Order of the United States District

Court for the Western District of Washington

Granting Approval to Register the Judgment

(Jan. 3, 2022) ...................................................... 36a

Appendix E: Order of the United States Court of

Appeals for the Ninth Circuit Denying Petition

for Rehearing En Banc (Feb. 6, 2024) ............... 42a

viii

TABLE OF AUTHORITIES

Page(s)

CASES

Abelesz v. Magyar Nemzeti Bank,

692 F.3d 661 (7th Cir. 2012) ...................... 2, 13, 18

American Insurance Ass’n v.

Garamendi,

539 U.S. 396 (2003) .............................................. 20

Arizona v. United States,

567 U.S. 387 (2012) .............................................. 21

Baiul-Farina v. Lemire,

804 F. App’x 533 (9th Cir. 2020) ......................... 22

Broidy Capital Management, LLC v.

State of Qatar,

982 F.3d 582 (9th Cir. 2020) ................................ 22

Callejo v. Bancomer, S.A.,

764 F.2d 1101 (5th Cir. 1985) .............................. 14

Corporación Mexicana de

Mantenimiento Integral, S. de R.L.

de C.V. v. Pemex-Exploración y

Producción,

832 F.3d 92 (2d Cir. 2016) ..................................... 7

Diamond v. Charles,

476 U.S. 54 (1986) ................................................ 25

Epic Systems Corp. v. Lewis,

584 U.S. 497 (2018) ........................................ 10, 16

FG Hemisphere Associates, LLC v.

Democratic Republic of Congo,

637 F.3d 373 (D.C. Cir. 2011) .............................. 23

ix

First National City Bank v. Banco Para

El Comercio Exterior de Cuba,

462 U.S. 611 (1983) .......................................... 3, 21

Frontera Resources Azerbaijan Corp. v.

State Oil Co. of Azerbaijan Republic,

582 F.3d 393 (2d Cir. 2009) ............... 13, 14, 18, 21

Gater Assets Ltd. v. AO Moldovagaz,

2 F.4th 42 (2d Cir. 2021) .................................. 2, 12

GE Energy Power Conversion France

SAS, Corp. v. Outokumpu Stainless

USA, LLC,

590 U.S. 432 (2020) .............................................. 25

Gregorian v. Izvestia,

871 F.2d 1515 (9th Cir. 1989) .............................. 17

JPMorgan Chase Bank v. Traffic Stream

(BVI) Infrastructure Ltd.,

536 U.S. 88 (2002) ................................................ 22

Mohammad v. General Consulate of

State of Kuwait,

28 F.4th 980 (9th Cir. 2022) ................................ 22

Practical Concepts, Inc. v. Republic of

Bolivia,

811 F.2d 1543 (D.C. Cir. 1987) ............................ 11

Price v. Socialist People’s Libyan Arab

Jamahiriya,

294 F.3d 82 (D.C. Cir. 2002)

............................................ 9, 11, 12, 13, 18, 19, 21

Republic of Argentina v. Weltover, Inc.,

504 U.S. 607 (1992) .................... 2, 4, 13, 14, 17, 18

S & Davis International, Inc. v.

Republic of Yemen,

218 F.3d 1292 (11th Cir. 2000) ........................ 2, 13

x

Samantar v. Yousuf,

560 U.S. 305 (2010) .............................................. 25

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) .............................................. 25

Sequeira v. Republic of Nicaragua,

791 F. App’x 681 (9th Cir. 2020) ......................... 22

South Carolina v. Katzenbach,

383 U.S. 301 (1966) .............................................. 17

Sukyas v. Romania,

765 F. App’x 179 (9th Cir. 2019) ......................... 22

Texas Trading & Milling Corp. v. Federal Republic of Nigeria,

647 F.2d 308 (2d Cir. 1981) ........................... 13, 14

Thomas P. Gonzalez Corp. v. Consejo

Nacional De Produccion De Costa

Rica,

614 F.2d 1247 (9th Cir. 1980) .............. 8, 15, 16, 17

TMR Energy Ltd. v. State Property

Fund of Ukraine,

411 F.3d 296 (D.C. Cir. 2005) ................ 2, 9, 11, 21

Velidor v. L/P/G Benghazi,

653 F.2d 812 (3d Cir. 1981) ................................. 14

Will v. Michigan Department of State

Police,

491 U.S. 58 (1989) .......................................... 12, 18

STATUTES

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

28 U.S.C. § 1330(a) ...................................................... 4

28 U.S.C. § 1330(b) .......................... 2, 5, 12, 15, 16, 24

xi

28 U.S.C. § 1603(a) ...................................................... 4

28 U.S.C. § 1603(b) ...................................................... 4

28 U.S.C. § 1604 .......................................................... 4

28 U.S.C. § 1605 ........................................................ 22

28 U.S.C. § 1605(a)(2) ............................................... 15

28 U.S.C. § 1605(a)(6) ............................................. 4, 6

28 U.S.C. § 1605A...................................................... 22

28 U.S.C. § 1605B...................................................... 22

28 U.S.C. § 1608 ............................................ 2, 5, 6, 15

Pub. L. No. 100-669, 102 Stat. 3969

(1988) ...................................................................... 4

RULES

Fed. R. Civ. P. 60 ......................................................... 7

Fed. R. Civ. P. 62.1 ...................................................... 7

OTHER AUTHORITIES

David P. Stewart, Federal Judicial

Center, The Foreign Sovereign

Immunities Act: A Guide for Judges

(2d ed. 2018) ......................................................... 21

Donald Earl Childress III, Questioning

the Constitutional Rights of Foreign

Nations, 88 Fordham L. Rev. Online

60 (2019) ............................................................... 18

The Federalist No. 42 (James Madison)

(Jacob E. Cook ed., 1961) ...................................... 20

xii

H.R. Rep. No. 94-1487 (1976), reprinted

in 1976 U.S.C.C.A.N. 6604 ............................ 16, 21

Ingrid Wuerth, The Due Process and

Other Constitutional Rights of

Foreign Nations, 88 Fordham L. Rev.

633 (2019) ............................................................. 18

Lori Fisler Damrosch, Foreign States

and the Constitution,

73 Va. L. Rev. 483 (1987) ..................................... 19

PETITION FOR A WRIT OF CERTIORARI

Petitioners CC/Devas (Mauritius) Limited; Devas

Multimedia America, Inc.; Devas Employees Mauritius Private Limited; and Telcom Devas Mauritius

Limited respectfully petition for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Ninth Circuit entered in three consolidated appeals arising from the same district-court

proceeding.

OPINIONS BELOW

The Ninth Circuit’s opinion (App.1a-12a) is unreported but is available at 2023 WL 4884882. The

Ninth Circuit’s denial of rehearing (App.42a-68a) is

reported at 91 F.4th 1340. The opinion of the district

court confirming the arbitral award (App.17a-35a) is

unreported but is available at 2020 WL 6286813. The

opinion of the district court granting leave to register

the judgment in the Eastern District of Virginia

(App.36a-41a) is unreported but is available at 2022

WL 36731.

JURISDICTION

The judgment of the court of appeals was entered

on August 1, 2023. Timely petitions for rehearing

were denied on February 6, 2024 (App.45a). This

Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process Clause of the Fifth Amendment

to the U.S. Constitution provides that:

2

No person shall * * * be deprived of life, liberty, or property, without due process of law

***.

28 U.S.C. § 1330(b) provides that:

Personal jurisdiction over a foreign state shall

exist as to every claim for relief over which the

district courts have jurisdiction under subsection (a) where service has been made under

section 1608 of this title.

STATEMENT

Congress in the Foreign Sovereign Immunities

Act (“FSIA”) provided that personal jurisdiction over

a foreign state and its instrumentalities “shall exist”

if the foreign state is not immune under the FSIA and

is properly served. 28 U.S.C. § 1330(b). All parties

agree that Respondent Antrix Corp. Ltd., which is

wholly owned by the Republic of India, is not immune

under the FSIA and was properly served in this case.

Nonetheless, the Ninth Circuit held that the district court lacked personal jurisdiction because Antrix

did not have “the requisite minimum contacts with

the United States.” App.6a. Requiring minimum contacts for a foreign state sued under the FSIA puts the

Ninth Circuit in conflict with “every other federal

court” to address the question since this Court’s decision in Republic of Argentina v. Weltover, Inc., 504

U.S. 607 (1992). App.47a; see Gater Assets Ltd. v. AO

Moldovagaz, 2 F.4th 42, 49 (2d Cir. 2021); Abelesz v.

Magyar Nemzeti Bank, 692 F.3d 661, 694 (7th Cir.

2012); S & Davis International, Inc. v. Republic of

Yemen, 218 F.3d 1292, 1303 (11th Cir. 2000); TMR

Energy Ltd. v. State Property Fund of Ukraine, 411

F.3d 296, 299-303 (D.C. Cir. 2005).

3

The Ninth Circuit’s outlier requirement, concocted from sparse and inapposite legislative history,

is incorrect. Two members of the Ninth Circuit panel

acknowledged that its “precedent applying the minimum-contacts test to the exercise of personal jurisdiction over foreign states has no foundation in the Constitution or the FSIA.” App.10a-11a (Miller, J., concurring). And seven more Ninth Circuit judges agreed

that “no other court interprets the FSIA this way” and

that “nothing in the Constitution requires a minimum-contacts analysis.” App.49a (Bumatay, J., dissenting from denial of rehearing); see also App.46a

(O’Scannlain, J., respecting the denial of rehearing).

As Judge Bumatay observed, the Ninth Circuit’s ruling, by imposing a minimum-contacts requirement

that has no basis in law, “violates the separation of

powers and anoints [courts] gatekeepers in a way not

contemplated by Congress or the Constitution.”

App.47a.

This Court should grant certiorari and confirm

that no minimum contacts analysis is required for foreign states sued under the FSIA. As it stands, foreign

states sued in California or Oregon may insist on a

showing of minimum contacts, whereas foreign states

sued in New York or Illinois or the District of Columbia may not. The Ninth Circuit’s requirement thus

undermines Congress’s goal of creating “a uniform

body of law concerning the amenability of a foreign

sovereign to suit in United States courts.” First National City Bank v. Banco Para El Comercio Exterior

de Cuba, 462 U.S. 611, 622 n.11 (1983) (quotation

marks omitted).

Because the “sole question” the Ninth Circuit decided below is “whether plaintiffs must prove mini-

4

mum contacts before federal courts may assert personal jurisdiction over foreign states,” App.56a, this

case is an appropriate vehicle for this Court to resolve

this question of profound national—and international—importance.

1. 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. It defines “foreign state” to include not only the foreign state and its

“political subdivision[s]” but also “an agency or instrumentality of a foreign state,” including “a separate legal person, corporate or otherwise, * * * a majority of

whose shares or other ownership interest is owned by

a foreign state or political subdivision thereof.” 28

U.S.C. § 1603(a)-(b).

Generally, “a foreign state shall be immune from

the jurisdiction of the courts of the United States and

of the States except as provided in sections 1605 to

1607 of this chapter.” 28 U.S.C. § 1604. Among the

enumerated exceptions are cases brought “to confirm

an award made pursuant to” an arbitration agreement with the foreign state if “the agreement or award

is or may be governed by a treaty or other international agreement in force for the United States calling

for the recognition and enforcement of arbitral

awards.” Id. § 1605(a)(6). The arbitration exception

was added to the FSIA by Congress in 1988. Pub. L.

No. 100-669, § 2, 102 Stat. 3969, 3969 (1988).

The FSIA vests federal courts with subject-matter

jurisdiction over any action brought under any of the

FSIA’s exceptions to sovereign immunity. 28 U.S.C.

§ 1330(a). And the FSIA provides that “[p]ersonal ju-

5

risdiction over a foreign state shall exist as to every

claim for relief over which the district courts have jurisdiction under subsection (a) where service has been

made under section 1608 of this title.” Id. § 1330(b).

2. This case arises from a breach of contract by

Antrix, a corporation wholly owned by the Republic of

India and created to serve as the commercial marketing arm for India’s Department of Space. App.17a18a. In 2005, Antrix entered an agreement with Respondent Devas Multimedia Private Limited, an Indian corporation founded and funded by American telecommunications executives and investors to provide

telecommunications services in India. App.17a-18a,

53a-54a. Under the Devas-Antrix agreement, Antrix

committed to lease S-band spectrum and transponders on Indian governmental satellites to Devas, which

Devas in turn would use to provide telecommunications services throughout India. App.17a-18a. But

the government of India decided to keep the spectrum

Antrix had leased to Devas for itself and directed Antrix to terminate the agreement, which Antrix did in

2011. App.18a.

Devas, invoking the arbitration clause in its

agreement with Antrix, initiated an arbitration before

the International Chamber of Commerce, which

awarded Devas $562.5 million in damages (plus interest) for Antrix’s breach of contract. App.18a-20a. This

award is governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards,

June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, often

referred to as the “New York Convention.” App.21a.

3. Devas petitioned to confirm this award in the

U.S. District Court for the Western District of Wash-

6

ington, invoking the arbitration exception of the FSIA.

App.20a-21a; see 28 U.S.C. § 1605(a)(6). Antrix did

not dispute that the FSIA’s arbitration exception applied or that it had been properly served under 28

U.S.C. § 1608. App.20a-21a. Yet it moved to dismiss

for lack of personal jurisdiction, arguing that it had a

right to demand a showing of minimum contacts.

Ibid.

The district court rejected that argument. It concluded that “[t]he Government of India exercises ‘plenary control’ over Antrix in a principal-agent relationship” such that, like India, “Antrix is not a ‘person’ for

due process purposes” with a right to a minimum-contacts analysis. App.13a-14a. Even if Antrix were entitled to due process, the district court found that “due

process has been satisfied in this case” because Antrix

“possesses the requisite ‘minimum contacts’ with the

United States.” App.22a. Rejecting all of Antrix’s

other arguments against confirmation, the district

court confirmed Devas’s arbitral award and entered a

$1.293 billion judgment for Devas in November 2020.

App.34a-35a. Antrix appealed from that judgment.

App.3a.

4. While that appeal was pending, Antrix petitioned a corporate-law tribunal in India to liquidate

Devas based on unsubstantiated assertions (never

raised during arbitration or confirmation) that Devas

had procured its agreement with Antrix through

fraud. App.54a-55a. The next day, the Indian tribunal appointed a government liquidator to seize control

of Devas and its affairs, including its award-enforcement activity in the courts below. Ibid. The courts of

7

India later set aside Devas’s arbitral award based on

Antrix’s unproven allegations. Ibid.1

With Devas under the control of an agent of its

judgment debtor, Petitioners—three of Devas’s shareholders and its Delaware subsidiary—intervened in

both the district court and the Ninth Circuit to defend

and enforce the judgment. App.54a-55a. The district

court permitted Petitioners to conduct post-judgment

discovery to locate executable assets of Antrix in the

United States and to register the judgment in the

Eastern District of Virginia after discovery revealed

that Antrix had a claim in a bankruptcy proceeding in

that District, which Petitioners subsequently garnished. App.37a, 41a. Both Antrix and Devas (now

under the control of an Indian liquidator) filed independent appeals from the order permitting Petitioners to register the judgment. App.3a.

5. The Ninth Circuit resolved all three appeals—

Antrix’s appeal from the judgment and the two appeals from the registration order—on a single ground.

The Ninth Circuit reversed the judgment confirming

the arbitral award on the sole ground that personal

jurisdiction did not exist in the absence of minimum

contacts between Antrix and the United States.

App.3a-8a. It relied on decades-old Ninth Circuit

precedent holding, based on “legislative history,” that

1

Antrix declined to file a motion for relief from the judgment and

seek an indicative ruling from the district court. See Fed. R. Civ.

P. 60, 62.1. Had it done so, Petitioners would have opposed, including because the proceedings in India were “repugnant to fundamental notions of what is decent and just” and thus not entitled to respect in United States courts. Corporación Mexicana de

Mantenimiento Integral, S. de R.L. de C.V. v. Pemex-Exploración

y Producción, 832 F.3d 92, 106 (2d Cir. 2016).

8

“[p]ersonal jurisdiction under the [FSIA] requires satisfaction of the traditional minimum contacts standard.” App.4a (quoting Thomas P. Gonzalez Corp. v.

Consejo Nacional De Produccion De Costa Rica, 614

F.2d 1247, 1255 (9th Cir. 1980)).

Under that circuit precedent, the Ninth Circuit

reasoned, Antrix is “entitled to a minimum contacts

analysis through our reading of the FSIA” even if it “is

not a person and thus not entitled to a minimum contacts analysis through the Constitution.” App.5a.

The Ninth Circuit thus concluded that the “district

court erred in ignoring our precedents requiring it to

conduct a minimum contacts analysis” and also that

it “erred in concluding that Antrix has the requisite

minimum contacts with the United States.” App.6a.

Because the Ninth Circuit concluded that the district court lacked personal jurisdiction over Antrix under the FSIA, it reversed the judgment against Antrix

and did “not address any of the other issues raised in

the Confirmation Appeal”—including whether the district court properly held that Antrix is India’s alter

ego. App.8a. And “[b]ecause there is no judgment to

register,” it also reversed the order granting leave to

register the judgment and did “not address any of the

issues raised by the Registration Appeals”—including

whether Petitioners could properly enforce the judgment against Antrix. Ibid.

Judge Miller, joined by Judge Koh, concurred.

Although they joined “the court’s disposition because

it correctly applies our precedent,” that “precedent applying the minimum-contacts test to the exercise of

personal jurisdiction over foreign states has no foundation in the Constitution or the FSIA.” App.9a-11a.

9

And “it is contrary to the views of other courts of appeals.” App.10a-11a.

Judge Miller “agree[d]” with the uniform decisions of other circuits that neither “‘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.’”

App.9a (quoting Price v. Socialist People’s Libyan

Arab Jamahiriya, 294 F.3d 82, 99 (D.C. Cir. 2002)).

He also explained “the statutory theory of a minimumcontacts requirement is little better than the constitutional one” because “[n]othing in the text of the FSIA’s

long-arm provision describes a minimum-contacts requirement.” App.10a. Rather, that text “‘clearly expresses the decision of the Congress to confer upon the

federal courts personal jurisdiction over a properly

served foreign state—and hence its agent—coextensive with the exceptions to foreign sovereign immunity in the FSIA,’ and it imposes no additional limitations.” Ibid. (quoting TMR, 411 F.3d at 303).

6. Both Petitioners and Devas petitioned for rehearing en banc, and the Ninth Circuit denied those

petitions. App.45a. Judge Bumatay, joined by five

other judges, dissented from the denial of rehearing

en banc. App.46a-69a; see also App.46a (statement of

Judge O’Scannlain “agree[ing] with the views expressed by Judge Bumatay”).

Judge Bumatay explained that this “case presents

a straightforward question”: Are plaintiffs suing under the FSIA required to “prove ‘minimum contacts’ to

assert personal jurisdiction over a foreign state?”

App.47a. “Unlike every other federal court, the Ninth

10

Circuit answers ‘yes.’” Ibid. And that answer “means

that we lock the courthouse doors to plaintiffs whom

Congress expressly granted access,” including “victims of terrorism, those harmed by violations of international law, and persons who suffered from torture.”

Ibid. The Ninth Circuit’s “failure to correct this error

violates the separation of powers and anoints ourselves gatekeepers in a way not contemplated by Congress or the Constitution.” Ibid.

Judge Bumatay also emphasized that the Ninth

Circuit’s requirement of minimum contacts depends

on an “interpretive move under the most dubious of

guises—legislative history,” which cannot “undo a

statute’s plain meaning.” App.48a (citing Epic Systems Corp. v. Lewis, 584 U.S. 497, 523 (2018)). And,

far from seeking to bring the Ninth Circuit into accord

with its sister circuits, the panel opinion extended

that minimum-contacts requirement “to a new context—the arbitral exception—for the first time,” “[s]o

while the majority of the panel disagrees with our

precedent, it expanded its troubling reach.” App.49a50a.

REASONS FOR GRANTING THE PETITION

I.

The Decision Below Conflicts With Those

Of Every Other Court Of Appeals That Has

Addressed The Issue.

The Ninth Circuit held that a “minimum contacts

analysis” was necessary for the district court to “exercise personal jurisdiction over Antrix.”

App.3a.

“[E]very other federal court” to have considered the

question has held that the FSIA does not require a

showing of minimum contacts, and the “consensus of

circuit courts” has held that “foreign states are not en-

11

titled to the protections of the Due Process Clause.”

App.47a, 63a. Thus, the Ninth Circuit “stands alone.”

App.68a.

This Court should grant certiorari to resolve the

conflict between the Ninth Circuit and the D.C., Second, Seventh, and Eleventh Circuits on the important

question presented here.

1. The D.C. Circuit has long held that the FSIA

does not require a showing of minimum contacts. To

the contrary, “under the FSIA, ‘subject matter jurisdiction plus service of process equals personal jurisdiction.’” Price v. Socialist People’s Libyan Arab

Jamahiriya, 294 F.3d 82, 95 (D.C. Cir. 2002) (quoting

Practical Concepts, Inc. v. Republic of Bolivia, 811

F.2d 1543, 1548 n.11 (D.C. Cir. 1987)). Thus, the

FSIA “clearly expresses the decision of the Congress

to confer upon the federal courts personal jurisdiction

over a properly served foreign state—and hence its

agent—coextensive with the exceptions to foreign sovereign immunity in the FSIA,” without regard to

“‘minimum contacts.’” TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296, 303 (D.C. Cir.

2005).

Likewise, the D.C. Circuit has held that foreign

states are not “persons” with the right to a minimumcontacts analysis under “the Fifth Amendment.”

Price, 294 F.3d at 96-100. Among other reasons, the

court noted that “‘the term “person” does not include

the sovereign,’” that the States of the Union are not

“persons” under the Due Process Clause, and accordingly that “it would make no sense to view foreign

states as ‘persons’ under the Due Process Clause.” Id.

12

at 96 (quoting Will v. Michigan Department of State

Police, 491 U.S. 58, 64 (1989)).

Looking to “history and tradition,” the D.C. Circuit reasoned that this Court has never “suggested

that foreign nations enjoy rights derived from the

Constitution.” Price, 294 F.3d at 97. “Rather, the federal judiciary has relied on principles of comity and

international law to protect foreign governments in

the American legal system.” Ibid.

Finally, the D.C. Circuit noted the “serious practical problems” that would arise if foreign states could

“cloak themselves in the protections of the Due Process Clause.” Price, 294 F.3d at 99; see ibid. (noting

that freezing assets or imposing economic sanctions

“could be challenged as deprivations of property without due process of law,” requiring courts to “adjudicate

these sensitive questions” and tying “the hands of the

other branches as they sought to respond to foreign

policy crises”).

2. The Second Circuit agrees that “[t]he FSIA provides that a court with subject-matter jurisdiction

pursuant to the FSIA also has ‘[p]ersonal jurisdiction

over a foreign state’ so long as ‘service [was] made’ in

accordance with the FSIA’s service rules.” Gater Assets Ltd. v. AO Moldovagaz, 2 F.4th 42, 49 (2d Cir.

2021) (quoting 28 U.S.C. § 1330(b)).

That court also has held that foreign states have

no constitutional right to a minimum-contacts analysis: “[F]oreign states do not enjoy due process protections from the exercise of the judicial power because

foreign states, like U.S. states, are not ‘persons’ for the

purposes of the Due Process Clause.” Gater Assets, 2

F.4th at 49. Notably, the Second Circuit had reached

13

the opposite conclusion decades ago, but it “overruled”

that decision because it found the D.C. Circuit’s decision in Price “persuasive.” Frontera Resources Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic,

582 F.3d 393, 399-400 (2d Cir. 2009) (overruling Texas

Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300 (2d Cir. 1981)).

The Seventh Circuit too has held that foreign

states have no right to require a showing of sufficient

minimum contacts. It has explained, in a case invoking the FSIA’s “commercial activity” exception to foreign sovereign immunity, that “the ‘commercial activity’ inquiry under the FSIA is not congruent with a

general personal jurisdiction inquiry.” Abelesz v.

Magyar Nemzeti Bank, 692 F.3d 661, 694 (7th Cir.

2012). And it “agree[d]” with the decisions of the D.C.

and Second Circuits holding that “foreign states are

not ‘persons’ entitled to rights under the Due Process

Clause.” Ibid.

Finally, the Eleventh Circuit has held that “personal jurisdiction exists” when one of the FSIA’s exceptions to sovereign immunity applies and “proper

service has been made,” full stop. S & Davis International, Inc. v. Republic of Yemen, 218 F.3d 1292, 1303

(11th Cir. 2000).

Apart from the Ninth Circuit, “no other court interprets the FSIA” to require “another layer of minimum-contacts review before denying foreign-state immunity.” App.48a-49a. And no other court of appeals

since this Court’s decision in Republic of Argentina v.

Weltover, Inc., 504 U.S. 607 (1992)—which “strongly

hinted that foreign states should be treated the same

as domestic States” for purposes of the Due Process

14

Clause—has required minimum contacts as a constitutional matter. App.63a.2

The Ninth Circuit’s minimum-contacts requirement is thus “contrary to the views of other courts of

appeals”; the Ninth Circuit “stands alone.” App.10a11a, 68a. This Court should grant certiorari to resolve

the conflict created by the Ninth Circuit’s outlier position.

II. The Decision Below Is Wrong.

This Court’s review is especially needed because

the Ninth Circuit’s outlier position is incorrect. As the

concurring and dissenting judges below explained—

and as other courts of appeals have held—neither the

FSIA nor the Constitution provides any support for

the Ninth Circuit’s minimum-contacts requirement.

App.9a-11a, 56a-68a.

A. The FSIA does not require a showing of

minimum contacts.

The FSIA imposes two—and only two—statutory

requirements for personal jurisdiction. “Personal jurisdiction over a foreign state shall exist as to every

claim for relief over which [1] the district courts have

jurisdiction under subsection (a) [2] where service has

2

True, before Weltover, some courts of appeals held that foreign

states are entitled to a minimum-contacts showing as a matter

of due process. See Texas Trading, 647 F.2d at 308; Velidor v.

L/P/G Benghazi, 653 F.2d 812, 819 n.12 (3d Cir. 1981); Callejo

v. Bancomer, S.A., 764 F.2d 1101, 1107 n.5 (5th Cir. 1985). But

the Second Circuit overruled Texas Trading after Weltover.

Frontera, 582 F.3d at 399-400. And to the extent that the Third

and Fifth Circuits adhere to their prior decisions (which relied

on Texas Trading, App.65a n.2), it would only deepen the conflict

among the circuits.

15

been made under section 1608 of this title.” 28 U.S.C.

§ 1330(b) (emphases added). “[I]t is hard to imagine a

clearer statute.” App.58a. “When subject-matter jurisdiction and service are proper under the FSIA, the

district court ‘shall’ have personal jurisdiction.” Ibid.

The Ninth Circuit’s additional minimum-contacts requirement is “found nowhere in the text.” App.57a.

Unsurprisingly, the Ninth Circuit has never purported to “ground” its requirement “in the text of

§ 1330(b).” App.58a. The panel here considered itself

bound by Thomas P. Gonzalez Corp. v. Consejo

Nacional De Produccion De Costa Rica, 614 F.2d 1247

(9th Cir. 1980). App.4a-5a. There, the court noted

that the term “‘direct effect’”—found in the FSIA’s

commercial activity exception, not Section 1330(b)—

had “been interpreted as embodying the minimum

contacts standard.” Gonzalez, 614 F.2d at 1255 (quoting 28 U.S.C. § 1605(a)(2)). And it asserted 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.” Ibid. “Based on

these flimsy data points, Gonzalez broadly proclaimed: ‘Personal jurisdiction under the Act requires

satisfaction of the traditional minimum contacts

standard.’” App.58a (quoting 614 F.2d at 1255).

As Judge Bumatay explained, that conclusion

does not follow from those (dubious) premises. For

one thing, “[t]he commercial activities exception,

along with the other FSIA exceptions, provides subject-matter jurisdiction to federal courts”; personal jurisdiction is “governed by § 1330(b).” App.59a. So

holding that the commercial-activity exception “creates a universal minimum-contacts requirement for

16

§ 1330(b) conflates the two concepts and makes no textual sense.” App.59a-60a.

For another, “Gonzalez was wrong to alter the

clear text of § 1330(b) based on legislative history,”

which “‘is not the law.’” App.59a-60a (quoting Epic

Systems Corp. v. Lewis, 584 U.S. 497, 523 (2018)).

“Even for those who find legislative history persuasive, it does not support Gonzalez’s minimum-contacts

test for the FSIA.” App.60a. The committee report on

which Gonzalez relies simply notes that the FSIA’s

enumerated exceptions require “some connection between the lawsuit and the United States, or an express or implied waiver by the foreign state of its immunity from jurisdiction.” H.R. Rep. No. 94-1487, at

13-14 (1976), reprinted in 1976 U.S.C.C.A.N. 6604,

6612. It does not suggest that Section 1330(b) requires a showing of minimum contacts. “And if all

that were not enough, the arbitral exception was

added more than a decade after the Committee Report” on which Gonzalez relied, “making application of

a minimum-contacts test” in cases falling within that

exception “even more dubious.” App.62a.

No member of the Ninth Circuit even attempted

to justify Gonzalez’s interpretation of the FSIA in this

case. To the contrary, a majority of the panel agreed

that Gonzalez was wrongly decided. App.10a-11a.

This Court should grant certiorari to correct the Ninth

Circuit’s error and restore a uniform interpretation of

the FSIA.

17

B. Foreign

states

do

not

have

a

constitutional due-process right to a

minimum-contacts analysis.

The Ninth Circuit’s decision cannot be defended

on the alternate basis that “the constitutional constraints of the Due Process clause preclude the assertion of personal jurisdiction over” Antrix. Gregorian

v. Izvestia, 871 F.2d 1515, 1529 (9th Cir. 1989); see

App.62a (“Perhaps realizing Gonzalez’s shaky textual

foundation, some of our later precedents began couching our minimum-contacts inquiry as a constitutional

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.” Ibid.

This Court held in South Carolina v. Katzenbach,

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, and to our

knowledge this has never been done by any court.”

383 U.S. 301, 323-24 (1966).

In Weltover, this Court was presented with the

question whether the Due Process Clause of the Fifth

Amendment accords to foreign states rights that the

States of this Union do not enjoy. The Court “assum[ed], without deciding, that a foreign state is a

‘person’ for purposes of the Due Process Clause, cf.

South Carolina v. Katzenbach, * * * (States of the Union are not ‘persons’ for purposes of the Due Process

Clause).” 504 U.S. at 619. By citing Katzenbach, the

Court “strongly hinted” that foreign states are not persons enjoying due process protections. App.63a.

18

The courts of appeals generally took the hint. As

the Second Circuit noted, “Weltover did not require deciding the issue because Argentina’s contacts satisfied

the due process requirements, but the Court’s implication was plain: If the ‘States of the Union’ have no

rights under the Due Process Clause, why should foreign states?” Frontera, 582 F.3d at 398-99 (citation

omitted) (holding that foreign states are not “persons”

under the Due Process Clause); Price, 294 F.3d at 96

(same); Abelesz, 692 F.3d at 694 (same). “After Weltover, no other circuit court has ruled” that foreign

states have a right to demand a showing of minimum

contacts under the Due Process Clause. App.65a.

And for good reason. There is an “often-expressed

understanding that in common usage, the term ‘person’ does not include the sovereign, and statutes employing the word are ordinarily construed to exclude

it.” Price, 294 F.3d at 96 (quoting Will, 491 U.S. at

64). This is especially true when foreign states are

considered. As one scholar has put it, 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). And even the leading scholar espousing the

opposing view—that “foreign states were viewed as

‘persons’ entitled to ‘process’” under the Fifth Amendment—nevertheless agrees that “when it comes to

personal jurisdiction, due process limitations may be

largely coextensive with the process that Congress

chooses to provide.” Ingrid Wuerth, The Due Process

19

and Other Constitutional Rights of Foreign Nations,

88 Fordham L. Rev. 633, 637, 679 (2019).

The history of U.S. foreign-relations law further

underscores that foreign nations do not hold due process rights against the federal government. “Relations between nations in the international community

are seldom governed by the domestic law of one state

or the other” and “legal disputes between the United

States and foreign governments are not mediated

through the Constitution.” Price, 294 F.3d at 97; see

Lori Fisler Damrosch, Foreign States and the Constitution, 73 Va. L. Rev. 483, 520 (1987) (“The most a foreign state can demand is that other states observe international law, not that they enforce provisions of domestic law.”).

Because “foreign nations are the juridical equals

of the government that seeks to assert jurisdiction

over them,” they must rely not on rights provided by

the U.S. Constitution but on the “panoply of mechanisms in the international arena through which to

seek vindication or redress.” Price, 294 F.3d at 98.

Extending a constitutional right “meant to protect individual liberty” to “frustrate the United States government’s clear statutory command” that a foreign

state is subject to suit in the courts of this country is

“not only textually and structurally unsound,” but

“distort[s] the very notion of ‘liberty’ that underlies

the Due Process Clause.” Id. at 98-99.

The Ninth Circuit’s decision therefore cannot be

supported on the ground that foreign states are entitled to a minimum-contacts analysis as a matter of

due process. This Court should grant certiorari to

make clear that the U.S. Constitution does not em-

20

power a foreign state to defeat jurisdiction that Congress expressly directed federal courts to exercise over

it.

III. This Case Is An Appropriate Vehicle To

Resolve This Important And Recurring

Question.

The Ninth Circuit’s outlier precedent undermines

the principle that our nation should speak with one

voice to foreign states, a principle that the FSIA was

specifically designed to foster. And it closes the courthouse doors in cases where Congress specifically directed the federal courts to provide a forum for relief,

such as suits by victims of terrorism. This issue is certain to recur, and, because it was the only issue the

Ninth Circuit considered and is logically prior to all

other issues in this case, this petition provides an appropriate vehicle to resolve it.

A. The petition raises an important and

recurring issue.

The issues raised by this petition are “unquestionably significant.” App.50a.

1. Foreign states sued in the Ninth Circuit have a

right to a minimum-contacts analysis that they do not

enjoy anywhere else in the United States. But “concern

for uniformity in this country’s dealings with foreign

nations” is what “animated the Constitution’s allocation of the foreign relations power to the National Government in the first place.” American Insurance Ass’n

v. Garamendi, 539 U.S. 396, 413 (2003); The Federalist

No. 42, at 279 (James Madison) (Jacob E. Cook ed.,

1961) (“If we are to be one nation in any respect, it

clearly ought to be in respect to other nations.”).

21

The enactment of the FSIA itself is an expression

of the need for uniformity in the treatment of foreign

states. “When it enacted the FSIA, Congress expressly

acknowledged ‘the importance of developing a uniform

body of law’ concerning the amenability of a foreign

sovereign to suit in United States courts.” First National City Bank v. Banco Para El Comercio Exterior de

Cuba, 462 U.S. 611, 622 n.11 (1983); see H.R. Rep. No.

94-1487, at 13 (“uniformity in decision * * * is desirable

since a disparate treatment of cases involving foreign

governments may have adverse foreign relations consequences”).

If the Ninth Circuit’s decision is allowed to stand,

a foreign state will be able to insist on a finding of minimum contacts if it is sued in Seattle or San Francisco

but not if it is sued in Washington, D.C., New York

City, or Chicago. That result undermines the fundamental principle that decisions that “touch on foreign

relations * * * must be made with one voice.” Arizona

v. United States, 567 U.S. 387, 409 (2012).

The disuniformity entrenched by the decision below is particularly troubling because the Second and

D.C. Circuits, where actions against foreign states are

frequently brought, see David P. Stewart, Federal Judicial Center, The Foreign Sovereign Immunities Act: A

Guide for Judges 23 (2d ed. 2018) (“foreign states are

most frequently sued in the District of Columbia”),

have already squarely rejected the Ninth Circuit’s view

in thorough, reasoned opinions. Price, 294 F.3d at 95100; TMR, 411 F.3d at 299-303; Frontera, 582 F.3d at

398-401. And the Ninth Circuit, in this case, has already rejected an opportunity to change course.

22

This Court has granted certiorari to resolve circuit

conflicts of similar size when they “implicate[] serious

issues of foreign relations.” JPMorgan Chase Bank v.

Traffic Stream (BVI) Infrastructure Ltd., 536 U.S. 88,

91 (2002) (noting that court granted certiorari to resolve split between the Second Circuit and three other

circuits). And further developments in the courts of appeals are unlikely to assist this Court’s review of the

question presented or to obviate the need for such review.

2. As Judge Bumatay noted below, the Ninth Circuit’s decision also “violates the separation of powers”

because it “lock[s] the courthouse doors to plaintiffs

whom Congress expressly granted access.” App.47a.

This means that “victims of terrorism, those harmed by

violations of international law, and persons who suffered from torture may be barred from seeking justice”

in the Ninth Circuit. Ibid. (citing 28 U.S.C. §§ 1605,

1605A, 1605B). At the very least, “the regime that the

Ninth Circuit erects” will require “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.”

App.68a. Nothing in the FSIA or the Constitution compels that unjust result.

3. This issue is also likely to recur. Foreign states

and their alter egos are regularly sued in the Ninth

Circuit. See Mohammad v. General Consulate of State

of Kuwait, 28 F.4th 980 (9th Cir. 2022); Broidy Capital

Management, LLC v. State of Qatar, 982 F.3d 582 (9th

Cir. 2020); Baiul-Farina v. Lemire, 804 F. App’x 533

(9th Cir. 2020); Sequeira v. Republic of Nicaragua, 791

F. App’x 681 (9th Cir. 2020); Sukyas v. Romania, 765

F. App’x 179 (9th Cir. 2019). If the Ninth Circuit’s de-

23

cision is not reversed, a foreign state may have a minimum-contacts defense in every pending or future case

in the Ninth Circuit, a defense that would be unavailable in other circuits.

The panel concurrence erroneously suggested that

this issue is unlikely to arise in proceedings to enforce

arbitral awards against foreign states because the

Ninth Circuit’s minimum-contacts requirement “can

easily be satisfied by the presence of assets in the forum.” App.11a. That is no answer to the fact that the

Ninth Court’s minimum-contacts requirement will be

implicated in cases invoking not just the arbitration exception but “all exceptions under the FSIA.” App.49a.

And the concurrence’s surmise is wrong on its own

terms. Parties seeking to confirm foreign arbitral

awards are often unaware whether their judgment

debtor has assets in the United States and seek confirmation for the purpose of “propound[ing] post-judgment discovery requests to identify the [debtor’s] commercial property in the United States available for execution.” FG Hemisphere Associates, LLC v. Democratic Republic of Congo, 637 F.3d 373, 375-76 (D.C.

Cir. 2011). That is precisely what happened in this

case: Petitioners were able to locate executable assets

of Antrix in the United States through post-judgment

discovery that was available to them only after the arbitration award was confirmed. App.40a. If the decision below is not reversed, any party seeking to discover executable assets of a foreign sovereign in the

United States will have every incentive to avoid bringing its confirmation proceeding in the Ninth Circuit.

This Court should grant certiorari to correct the

Ninth Circuit’s error, restore uniformity to the treatment of foreign states in federal court, and ensure that

24

the courts of this country exercise the jurisdiction

against foreign states that Congress commanded “shall

exist.” 28 U.S.C. § 1330(b) (emphasis added).

B. This case squarely and cleanly presents

this issue for the Court’s review.

This case is an appropriate vehicle for resolving

this issue. “[T]he sole question” the Ninth Circuit decided, and thus the only question for this Court, is

“whether plaintiffs must prove minimum contacts before federal courts may assert personal jurisdiction

over foreign states under the FSIA.” App.56a. This

question is jurisdictional and antecedent to all other issues in this case. Thus, there are no complicating

threshold questions that would impede this Court’s review and decision on that important question of law.

Below, Antrix opposed rehearing en banc on the

ground that the underlying arbitral award confirmed

by the district court’s judgment has been set aside in a

legal proceeding in India and that the district court erroneously found Antrix to be the alter ego of India and

therefore not entitled to due process. But those issues

are “secondary to whether foreign states are entitled to

a minimum-contacts analysis in the first place.”

App.50a.

Nor would there be any merit to the contention

that Petitioners are not the proper parties to petition

for certiorari because the judgment that was reversed

is in the name of Respondent Devas, not Petitioners.

Petitioners successfully intervened in both the district

court and the Ninth Circuit, actively enforced and defended the judgment, obtained leave to register the

judgment, and garnished a claim of Antrix’s in bankruptcy. App.55a. As “intervenors,” Petitioners are “en-

25

titled * * * to seek review by this Court.” Diamond v.

Charles, 476 U.S. 54, 68 (1986). And because the Ninth

Circuit’s judgment eliminated Petitioners’ ability to enforce the district court judgment confirming the award

and may endanger their prior enforcement efforts, Petitioners have standing to invoke this Court’s jurisdiction. See Seila Law LLC v. CFPB, 591 U.S. 197, 21112 (2020).

Of course, if this Court reverses the Ninth Circuit’s

judgment and resolves the jurisdictional question presented, it would lead to other questions on the merits.

But that is “no reason to punt” on the “significant question” presented given that “those subsidiary questions”

may be left “to the [Ninth Circuit] or district court” in

the first instance. App.56a; see Samantar v. Yousuf,

560 U.S. 305, 325-26 (2010) (holding that foreign official was not entitled to immunity under the FSIA and

explaining that “whether he may have other valid defenses * * * are matters to be addressed in the first instance * * * on remand”); GE Energy Power Conversion

France SAS, Corp. v. Outokumpu Stainless USA, LLC,

590 U.S. 432, 445 (2020) (questions that the court of

appeals “did not determine * * * can be addressed on

remand”).

This is a suitable vehicle for answering the important and recurring question presented. This Court

should grant certiorari and reverse.

26

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ANNE CHAMPION

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

MATTHEW D. MCGILL

Counsel of Record

JACOB T. SPENCER

DAVID W. CASAZZA

BRIAN C. MCCARTY

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, DC 20036

(202) 887-3680

mmcgill@gibsondunn.com

Counsel for Petitioners

May 6, 2024