Amicus Curiae Brief — Sinochem Intern. v. Malaysia Intern. Shipping

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In the Supreme Court of the Cnited States

SINOCHEM INTERNATIONAL Co. LTD.,

PETITIONER

v.

MALAYSIA INTERNATIONAL SHIPPING CORPORATION

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistaut Attorney General

EDWIN S. KNEEDLER -

Deputy Solicitor General

DOUGLAS H. HALLWARD-DRIEMEIER

Assistant to the Solicitor General

MICHAELS. RAAB

STEPHANIF R. MARCUS

Eric J. FRIGIN

Attorneys

Departmeut of Justice

Washington, D.C. 20580-0001

(202) 514-2217

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QUESTION PRESENTED

Whether a district court must first conclusively

establish jurisdiction before dismissing a suit on the

ground of forum non conveniens.

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TABLE OF CONTENTS

Page

Interest of the United States ............... 0. cece eee eee 1

SEE. 0 oor Kb y wdudbiviscdeves WecraWeeususduunbeeen 2

Sr IID o.dine t nccwbsaceuspedpecemsceoen 7

Argument: 9

A federal court may dismiss a case on forum non

conveniens grounds without first determining that it has

SE ee dacantcdacwceheuesdnsnsk dese eeeen beets )

A. A court does not exceed its authority by

dismissing a suit on a threshold, non-mer'ts basis

before establishing its jurisdiction ............... 10

B. Forum non conveniens is a threshold, non-

merits ground for dismissal ..................4.. 12

C. The doctrine of forum non conveniens does not

independently require that a ¢ourt first ascertain

its own jurisdiction before dismissing a suit in

favor of an alternative forum .................... 17

D. Permitting courts to dismiss on threshold, non-

merits grounds, such as forum non conveniens,

before adjudicating complex jurisdictional issues

promotes Article II] values ...............-.005 25

EE \gh.kne- ek pancdebee' dad hpuke nee bans beam ees 30

TABLE OF AUTHORITIES

Cases:

Albion v. YMCA Camp Letts, 171 F.3d 1 (1st Cir.

BD. CArdondeet douse news cecunadkeenecnemesacens 21

Altmann v. Republic of Austria, 317 F.3d 954 (9th Cir.

2002), aff'd, 541 U.S. 677 (2004) ...............00 28

(111)

ig

Cases—Continued: Page

American Dredging Co. v. Miller, 510 U.S. 443

Ge x didabadciabivn bia vsdeuens 2, 3, 12, 13, 19, 26

Arakaki v. Lingle, 423 F.3d 954 (9th Cir. 2005),

vacated and remanded on other grounds, 126 S. Ct.

EEE SNARE SE aa re ao ay Sie Ry 29

Arbitration Between Monegasque de Reassurances

S.A.M. v. Nak Naftogaz of Ukraine, In re, 311 F.3d

468 Gd Clr. BOGR). nc cc ccvcccccvcess enka dasa 7, 25

Baldwin v. lowa State Traveling Men’s Ass’n, 283

EN i ibd abn bud ebedarcheeduvechseeex 14

Chick Kam Choo v. Exxon Corp., 486 U.S. 140

I i nd aia A akan ita ini amanda athe hae pib eee 13, 14

Coté v. Wadel, 796 F.2d 981 (7th Cir. 1986) ............ 20

Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) ....... 23

Dominguez-Cota v. Cooper Tire & Rubber Co., 396

F.3d 650 (Sth Cir. 2005) .......... cc cee eeees 14, 15, 29

Ellis v. Dyson, 421 U.S. 426 (1975) .. 2.2... 2 eee ee eee 11

Ferens v. John Deere Co., 494 U.S. 516 (1990) ......... 21

Follette v. Wal-Mart Stores, Inc., 41 F.3d 1234 (8th

SE ped ie ceils Cheeks el Wi gh bined bbe wines 20

Fort Knox Music Inc. v. Baptiste, 257 F.3d 108 (2d

SE Se scchsiddendaevancivadsakiouataks souks 20

Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962) .... 8, 19, 20

Goldwater v. Carter, 444 U.S. 996 (1979) .............. 29

Gulf Oil Corp. v. Gilbert, 330 U.S. 501

DEE naveeideesecansenescncuminiies 3, 6, 7, 17, 18, 25

Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir.

2005), cert. denied, 126 S. Ct. 1418 (2006) ........... 29

Cases—Continued: Page

Insurance Corp. of Ir., Ltd. v. Compagnie des

Bausxites de Guinee, 456 U.S. 694 (1982) ........... 14

Intec USA, LLC v. Engle, No. 06-1117, 2006 WL

3093644 (7th Cir. Nov. 2, 2006) ............... 7, 21, 25

Kamel v. Hill-Rom Co., 108 F.3d 799 (7th Cir. 1997) .. 7, 20

Koehring Co. v. Hyde Constr. Co., 324 F.2d 295 (5th

VDE a6d cdincentbacudseva Geehbendukbanmanee 20

Kowalski v. Tesmer, 543 U.S. 125 (2004) .............. 12

Kryvicky v. Scandinavian Airlines Sys., 807 F.2d 514

SR EEE Sikacwscdyncnepsdokipedhevneuees 23, 25

Lacey v. Cessna Aircraft Co., 932 F.2d 170 (3d Cir.

SEE vadvhckecepelndccicedsipesabonmenussetion 15

Leroy v. Great W. United Corp., 443 U.S. 173

GRE. dds canned sidachaveed bs euslectaen ens 17, 19, 27

Martin v. Stokes, 623 F.2d 469 (6th Cir. 1980) ......... 21

McFarlane v. Esquire Magazine, 74 F.3d 1296 (D.C.

Cir.), cert. denied, 519 U.S. 809 (1996) ............. 21

Minister Papandreou, In re, 139 F.3d 247 (D.C. Cir.

SEED chk cinancdnsnacnsh daacheeeaaeaeees 7, 23, 24

Moor v. County of Alameda, 411 U.S. 693 (1973) ....... 11

Myelle v. American Cyanamid Co., 57 F.3d 411 (4th

SA BOE. ose nccadbvcceedusdennendioeeneshaena 20

Nelson v. International Paint Co., 716 F.2d 640 (9th

Cee: NON <h ducdidgend ccadeduddedtacedbseecdcusciu 21

Norton v. Mathews, 427 U.S. 524 (1976) .............. ll

Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) ......... 12

Parsons v. Chesapeake & Ohio Ry., 375 U.S. 71 (1963)... 14

VI

Cases-Continued: Page

Patrickson v. Dole Food Co., 251 F.3d 795 (9th Cir.

2001), aff'd in part , cert. dismissed in part, 538 U.S.

ee aie os casandwanpeeebene 7, 22, 23

Piper Aircraft Co. v. Reyno, 454 U.S. 235

DD vs cdl uenehin dhebedeccesekebadese 3, 18, 22, 25

Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) .... 3

Republic of Austria v. Altmann, 544 U.S. 677 (2004) ... 28

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574

SED whbewneeaudeiedvdepeddéekabsnecoanes passim

Sarei v. Rio Tinto, PLC., 456 F 3d 1069 (9th Cir. 2006) .. 29

Sosa v. Alvarez-Machain, 542 U.S. 692( 2004) ......... 30

Steel Co. v. Citizens for a Better Env't, 523 U.S. 838

RSIS eee PR eereceesece 6, 7, 9, 10, 11, 12

Tenet v. Doe, 544 U.S. 1(2005) ............. 11, 12, 17, 24

Totten v. United States, 92 U.S. 105 (1876) ............ 1]

Turendi v. Coca-Cola Co., No. 05 Civ. 9635, 2006 WL

3187156 (S.D.N.Y. Nov. 2, 2006) ............. 23, 27, 28

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) .... 16

United States v. Berkowitz, 328 F.2d 358 (3d Cir.),

cert. denied, 379 U.S. 821 (1964) ...........00 eee 20

Van Cauwenberghe v. Biard, 486 U.S. 517 (1988) ...... 15

Van Dusen v. Barrack, 376 U.S. 612 (1964) ........... 21

Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665

i eabck, hedcecaudicadepboeetaegevece 14

Vermont Agency of Natural Res. v. Stevens, 529 U.S.

Td. sue beebicaue dds cede Gavesdecuaseepes ll

Viernow v. Euripides Dev. Corp., 157 F.3d 785 (1998) .. 21

Younger v. Harris, 401 U.S. 37 (1971) ......... phusdes 10

Vil

Constitution, statutes and rules: Page

U.S. Const.:

BL GEA. ned toavvicncerenbcewddicasdeeve 10, 12, 30

IEE iucvcuaksdbattedsudatdh descctbeses 12

Alien Tort Statute, 28 U.S.C.1350 ................. 2

Anti-Injunction Act, 28 U.S.C. 2283 ............... 13

False Claims Act, 31 U.S.C. 3729 et seg. ............ 12

Foreign Sovereign Immunities Act of 1976, 28

EOI che i dbadncamesesaddesiace sien l

PPD itiskinwanouvuasieanesoceenake 22

IT BEE. a Cicconbueceeuet etn cbd 11

EEE anid usahbaudcobuatsn tence san deeaeke 5

Ee NE hbk ne ws bu denbisd bbb dbebbavhdnacdens 2

PE NEED xecccbddiontieidabeene earner 3, 20, 21

LE. - cts ot tbne asedtheuskbens 19, 20, 22

I DEE bbb non ccdoventacuanbed dhianiis 20, 21, 22

42 Pa. Cons. Stat. Ann. §§ 5301 et seg. (West 2004) .... 5

Fed. R. Civ. P.: -

eg oi 5

I iat ifs eid ate lie cer a ee a 13

i at a 5

Miscellaneous:

Austrian Press Agency, Ambassador Nowotny:

Klimt Arbitration Welcomed by U.S. Side (May

24, 2005) <http://www.austria.org/

I . o ciciveedivdadd bekcaadencons 28

17 James Wm. Moore, Moore's Federal Practice

SUE su diiin 6éd ck and onsbebseahedesvens 19

Vill

Miscellaneous—Continued: Page

15 Charles Alan Wright et al. Federal Practice and

Pe. TD bi 0 vd cccaddccbeuiccese 19

In the Supreme Court of the Gnited States

No. 06-102

SINOCHEM INTERNATIONAL Co. LTD.,

PETITIONER

v.

MALAYSIA INTERNATIONAL SHIPPING CORPORATION

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

“AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether a federal

district court must conclusively determine that it has

jurisdiction over a case before it may dismiss the case

under the forum non conveniens doctrine. The resolu-

tion of that question will have policy implications for the

United States with respect to both domestic and foreign

litigation.

The doctrine of forum non conveniens arises in the

federal courts exclusively in the context of a request

that the court defer to adjudication of the parties’ dis-

pute in the courts of a foreign nation. In many cases

over the past several years, defendants in suits brought

under the Foreign Sovereign Immunities Act of 1976

(1)

2

(FSIA), 28 U.S.C. 1602 et seg., or Alien Tort Statute

(ATS), 28 U.S.C. 1350, have sought dismissal on non-

merits threshold grounds such as forum non

conveniens, international comity, and the political ques-

tion doctrine, in deference to resolution of the plaintiff's

claim in the country where the wrong took place. On

several occasions, the United States has appeared as

amicus and argued that the courts may dismiss on such

grounds without deciding difficult questions of jurisdic-

tion, which often can turn on questions which could be

very sensitive to the foreign government whose conduct

is at issue. The United States has a significant interest

- in maintaining the federal courts’ ability to avoid unnec-

essary adjudication in cases that, for example, may in-

volve delay, burdensome or sensitive discovery, or exam-

ination of difficult legal issues.

The United States also invokes the doctrine of forum

non conveniens on its own behalf as a party to litigation

abroad. The doctrine is not unique to the United States

(indeed, it did not originate here), but rather is incorpo-

rated into the law of a variety of countries. See Ameri-

can Dredging Co. v. Miller, 510 U.S. 443, 449-450 (1994).

A holding by this Court that a court must conclusively

establish jurisdiction before dismissing a case on forum

non conveniens grounds could have an adverse impact

on the United States when it raises that or similar non-

merits grounds for dismissal in foreign litigation.

STATEMENT

1. A federal court has discretion to dismiss a case

under the common law doctrine of forum non

conveniens when “an alternative forum has jurisdiction

to hear [a] case,” and “when trial in the chosen forum

would establish . . . oppressiveness and vexation to a

3

defendant . . . out of all proportion to plaintiff's conve-

nience,” or when “the chosen forum [is] inappropriate

because of considerations affecting the court’s own ad-

ministrative and legal problems.” American Dredging

Co. v. Miller, 510 U.S. 443, 447-448 (1994) (quoting

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981)).

Dismissal on forum non conveniens grounds can reflect

a “broad|] range of considerations, * * * most notably

the convenience to the parties and the practical difficul-

ties that can attend the adjudication of a dispute in a

certain locality.” Quackenbush v. Allstate Ins. Co., 517

U.S. 706, 723 (1996) (citing Piper Aircraft, 454 U.S. at

241, 257-261; id. at 261-262 (Stevens, J., dissenting), and

Gulf Oil Corp. v. Gilbert, 330 U.S. 401, 508-509, 511

(1947)). In light of the federal venue transfer statute,

which authorizes district courts to transfer cases “in the

interest of justice * * * to any other district or division

where it might have been brought,” 28 U.S.C. 1404(a),

“the federal doctrine of forwm non conveniens has con-

tinuing application only in cases in which the alternative

forum is abroad.” American Dredging, 510 U.S. at 449

n.2. Cases involving foreign parties, foreign law, and

acts in foreign countries are therefore the typical candi-

dates for forum non conveniens dismissals.

2. Petitioner Sinochem International Co. Ltd., a Chi-

nese company, purchased a large number of steel coils

from an American firm that is not a party to this action.

Pet. App. 3a. Under the terms of the purchase contract,

the seller was to receive payment only if a valid bill of

lading was issued certifying that the coils had been

loaded for shipment on or before April 30, 2003. /d. at

3a-4a. The coils were shipped from Philadelphia to

China aboard a vessel owned by respondent Malaysia

International Shipping Corp., a Malaysian company. /d.

4

at 4a, 49a. A bill of lading, dated April 30, 2003, was

issued in Philadelphia acknowledging the loading of the

coils. [bid.

In June 2003, petitioner filed a petition in the Chi-

nese admiralty court for presentation of a maritime

claim against respondent and for arrest of the vessel

when it arrived in China. Pet. App. 5a. Petitioner al-

leged that respondent fraudulently backdated the bill of

lading, and in fact had not loaded the shipment until

May. /d. at 5a, 38a. The Chinese admiralty court

granted the petition and, on the court’s order, the vessel

was subsequently arrested at the Huangpu Port. /d. at

5a. Respondent posted a $9 million bond to secure its

release. /bid.

Petitioner subsequently filed a complaint against

respondent in the Chinese admiralty court asserting

that the bill of lading had been falsified and that it had

been injured as a result. Pet. App. 6a. Respondent

moved to dismiss on jurisdictional grounds, but the ad-

miralty court denied the motion and its holding was af-

firmed on appeal by the Guangdong Higher People’s

Court. /bid. That suit apparently remains pending in

China.

3. Shortly after the ship was arrested, respondent

filed its own suit against petitioner in the United States

District Court for the Eastern District of Pennsylvania.

Pet. App. 5a. Respondent claims that the allegations in

petitioner’s petition to the Chinese admiralty court for

arrest of the vessel constituted negligent misrepresenta-

tions regarding the shipping vessel’s fitness and suit-

ability and that respondent was injured by the delay due

to the arrest of the vessel. See id. at 5a-6a.

Petitioner moved to dismiss the suit in district court

on several grounds, including lack of subject matter ju-

5

risdiction, lack of personal jurisdiction, forwm non

conveniens, and principles of international comity. Pet.

App. 7a. The district court first determined that it pos-

sessed subject matter jurisdiction under 28 U.S.C. 1333,

which confers jurisdiction on the district courts over

admiralty and maritime matters. Pet. App. 5la-54a. The

court next concluded that it did not have personal juris-

diction over petitioner under Pennsylvania’s long-arm

statute, 42 Pa. Cons. Stat. Ann. §§ 5301 et seg. (West

2004), but suggested that limited discovery might reveal

that personal jurisdiction could be established under

Fed. R. Civ. P. 4(k)(2). Pet. App. 55a-59a; id. at 59a-63a.

The district court did not allow discovery or decide

whether it had personal jurisdiction over petitioner,

however, because it concluded that dismissal was war-

ranted under the doctrine of forwm non conveniens.

Pet. App. 63a-69a; id. at 40a-47a (denial of Rule 59(e)

motion). The court concluded that the parties’-dispute

could be resolved adequately and more easily in the Chi-

nese courts. /d. at 64a-65a; id. at 42a-44a. It further

concluded that the interests of the United States were

not implicated in the dispute. /d. at 65a-67a; id. at 44a-

47a. Although the choice-of-law clause in the bill of lad-

ing itself called for the application of United States law,

the district court found the purchase contract’s choice of

Chinese law to be more apposite. /d. at 66a-67a; id. at

46a. And while the cargo had been loaded in the United

States, the actual subject matter of the dispute—involv-

ing the arrest of a foréign ship in foreign waters pursu-

ant to an order of a foreign court—was purely foreign.

Id. at 67a.

4. A divided panel of the court of appeals vacated

and remanded the case for a conclusive determination

whether the district court had personal jurisdiction over

6

petitioner. Pet. App. 3a-36a. According to the majority

(which agreed that there was subject matter jurisdic-

tion), the district court could not dismiss the case on

forum non conveniens grounds unless and until it fully

established that it had both subject matter and personal

jurisdiction. /d. at 3a-32a.

The majority relied on two main rationales. First, it

reasoned that “the very nature and definition of forwm

non conveniens presumes that the court deciding this

issue has valid jurisdiction (both subject matter and per-

sonal jurisdiction) and venue.” Pet. App. 21a. Accord-

ing to the majority, a court cannot abstain from exercis-

ing jurisdiction under the forwm non conveniens doc-

trine unless it establishes that it actually has such juris-

diction in the first place. /d. at 21a-22a (citing Gulf Oil,

supra).

Second, the majority relied on this Court’s holding in

Steel Co. v. Citizens for a Better Environment, 523 U.S. -

83 (1998), which instructs that a court may not decide

the merits of a case before establishing that it has sub-

ject matter jurisdiction. Pet. App. 17a, 26a. According

to the majority, a court dismissing for forum non

conveniens before finding personal jurisdiction would be

exercising “hypothetical jurisdiction” in violation of

Steel Co. See id. at 26a. The panel majority acknowl-

edged that this Court had clarified Steel Co. in Ruhrgas

AG v. Marathon Oil Co., 526 U.S. 574 (1999), by holding

~ that a court could dismiss a case on “non-merits grounds

such as personal jurisdiction” before finding subject

matter jurisdiction, id. at 584 (internal quotation marks,

alterations and citation omitted), and the court of ap-

peals further determined that forum non conveniens

constitutes a non-merits ground for dismissal. Pet. App.

17a, 19a-2la. Nonetheless, the majority concluded that

-

7

subject matter and personal jurisdiction must always be

resolved before non-jurisdictional questions such as fo-

rum non conveniens. Id. at 22a-32a.

The majority acknowledged that its view was in con-

flict with those of the Second and District of Columbia

Circuits. See Pet. App. 24a-26a (citing Jn re Arbitration

Between Monegasque de Reassurances S.A.M. v. Nak

Naftogaz of Ukraine, 311 F.3d 488, 497-498 (2d Cir.

2002); In re Minister Papandreou, 139 F.3d 247, 255

(D.C. Cir. 1998)). The eourt found the contrary position

of the Seventh and Ninth Circuits to be more persuasive.

See Pet. App. 23a-24a, 29a (citing Patrickson v. Dole

Food Co., 251 F.3d 795, 800 n.3 (9th Cir. 2001), aff'd in

part, cert. dismissed in part, 538 U.S. 468 (2003); Kamel

v. Hill-Rom Co., 108 F.3d 799, 805 (7th Cir. 1997)).'

Judge Stapleton dissented. Pet. App. 32a-36a. In his

view, Ruhrgas permits a court to dismiss a case on a

non-merits ground such as forum non conveniens before

deciding whether it has jurisdiction. /d. at 33a-36a. He

saw no reason why a court could not dismiss a case after

concluding that even if jurisdiction existed the court

would decline to exercise it. /bid.

SUMMARY OF ARGUMENT

The court of appeals mistakenly held that this

Court’s decision in Steel Co. v. Citizens for a Better En-

vironment, 523 U.S. 83 (1998), and Gulf Oil Corp. v.

Gilbert, 330 U.S. 501 (1947), “dictate” the conclusion

' The Seventh Circuit has called into question the Third Circuit's

characterization of Kamel. In Intee USA,GLC v. Engle, No. 06-1117,

2006 WL 3093644 (Nov. 2, 2006), the Seventh Circuit stated: “Unlike

the majority in Sinochem, we do not read Kamel as committing this

court to a rule that subject-matter jurisdiction always must be resolved

ahead of forum non conveniens.” Id. at *2.

8

that district courts “must have jurisdiction before they

ean rule on which forum, otherwise available, is more

convenient to decide the merits.” Pet. App. 26a. In

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999),

this Court rejected that kind of inflexible approach, ex-

plaining that “a federal court [may] choose among

threshold grounds for denying audience to a case on the

merits.” Jd. at 585. Permissible threshold grounds in-

clude both mandatory jurisdictional grounds for dis-

missal, such as personal jurisdiction, id. at 584-585, and

discretionary, non-jurisdictional bases for dismissal,

such as abstaining from the adjudication of pendent

state law claims, id. at 585.

The doctrine of forum non conveniens is a similar

non-merits, threshold issue. A dismissal on forum non

conveniens grounds does not decide the merits of the

underlying case, but rather, like a dismissal based on

improper venue, holds only that there is a more appro-

priate forum for litigating the parties’ dispute. Thus,

just as a case may be transferred for improper venue by

a court that lacks (or has not decided whether it has)

personal jurisdiction over the defendant, see Goldlawr,

Inc. v. Heiman, 369 U.S. 463, 465-466 (1962), it may sim-

ilarly be dismissed on forum non conveniens grounds.

By dismissing a claim in favor of adjudication in another

forum before establishing its own jurisdiction, a court

does not exercise hypothetical “law-declaring power” in

the way that Steel Co. held would be impermissible.

Allowing a court to choose among threshold, non-

merits bases for dismissal enables it to avoid opining

unnecessarily on legal issues that may be more difficult

or time-consuming, including novel issues and those with

constitutional dimensions. Moreover, a rule that re-

quired courts to resolve jurisdictional issues before dis-

9

missing on forum non conveniens grounds could largely

negate the benefits of the doctrine, by subjecting defen-

dants to the very litigation burdens—such as jurisdic-

tional discovery, especially in an inconvenient forum—

that the doctrine is intended to avoid. Abroad, the

United States as a defendant would seek to avoid such

burdens. In our own courts, suits that involve activities

abroad by foreign corporations, that are against foreign

sovereigns, or that challenge the conduct of foreign gov-

ernments can be quite sensitive. When appropriate,

dismissal on forum non conveniens grounds prior to

resolving the jurisdictional inquiry could allow the court

to avoid creating unnecessary foreign relations difficul-

ties.

ARGUMENT

A FEDERAL COURT MAY DISMISS A CASE ON FORUM NON

CONVENIENS GROUNDS WITHOUT FIRST DETERMINING

THAT IT HAS JURISDICTION

In Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998), this Court reiterated the long-stand-

ing “requirement that jurisdiction be established as a

threshold matter.” Jd. at 94. “For a court to pronounce

upon the merits when it has no jurisdiction to do so,” the

Court explained, “is, by very definition, for a court to act

ultra vires.” Jd. at 101-102. Only a year later, however,

the Court unanimously clarified that a federal court may

“choose among threshold grounds for denying audience

to a case on the merits.” Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 585 (1999). The doctrine of forum non

conveniens is one such non-merits threshold ground

upon which a court may dismiss a suit before resolving

disputed questions regarding the court’s jurisdiction “to

pronounce upon the merits.” Steel Co., 523 U.S. at 101.

10

A. A Court Does Not Exceed Its Authority By Dismissing A

Suit On A Threshold, Non-Merits Basis Before Estab-

lishing Its Jurisdiction

The key holding of Steel Co. was its rejection of the

practice of “‘assuming’ jurisdiction for purpose of decid-

ing the merits” because doing so “carries the courts be-

yond the bounds of authorized judicial action and thus

offends fundamental principles of separation of powers.”

523 U.S. at 94 (emphasis added). See-Ruhrgas, 526 U.S.

at 583 (“Steel Co. held-that Article III generally re-

quires a federal court to satisfy itself of its jurisdiction

over the subject matter before it considers the merits of

a case.”) (emphasis added); id. at 577 (“Jurisdiction to

resolve cases on the merits requires both” subject mat-

ter jurisdiction and personal jurisdiction over the par-

ties “so that the court’s decision will bind them.”). In

contrast, there is no similar problem of ultra vires ac-

tion when a court declines to adjudicate the merits of a

case without first completing its jurisdictional inquiry.

When a court dismisses on non-merits grounds before

ascertaining its jurisdiction, it “makes no assumption of

law-declaring power that violates the separation of pow-

ers.” Id. at 584-585 (citation omitted). Such acts of judi-

_ cial abnegation of the power to decide are quite different

from the judicial arrogation of the power to resolve a-

case on the merits.

The Court recognized in Steel Co. and reiterated in

Ruhrgas that “district courts do not overstep Article IIT

limits when they decline jurisdiction of state-law claims

on discretionary grounds without determining whether

those claims fall within their pendent jurisdiction, * * *

or abstain under Younger v. Harris, 401 U.S. 37 (1971),

without deciding whether the parties present a case or

11

controversy.” Ruhrgas, 526 U.S. at 585 (citing Steel Co.,

523 U.S. at 100-101 n.3, Moor v. County of Alameda, 411

U.S. 693, 715-716 (1973), and Ellis v. Dyson, 421 U.S.

426, 433-434 (1975)). Indeed, two Justices in the Steel

Co. majority emphasized that “the Court’s opinion

should not be read as cataloging an exhaustive list of

circumstances under which federal courts may exercise

judgment in ‘reserv[ing] difficult questions of. . . juris-

diction when the case alternatively could be resolved on

the merits in favor of the same party.’” 523 U.S. at 110-

111 (O’Connor, J., joined by Kennedy, J., concurring)

(quoting Norton v. Mathews, 427 U.S. 524, 532 (1976)).

More recently, in Tenet v. Doe, 544 U.S. 1 (2005), the

Court ruled that it could address the question whether

resporcents’ claims were barred under Totten v. United

States, 92 U.S. 105 (1876), which held that suits against

the United States based on secret espionage agreements

should not proceed, without first determining whether

the district court lacked jurisdiction over the suit be-

cause the Tucker Act, 28 U.S.C. 1491, granted the Court

of Federal Claims exclusive jurisdiction over respon-

dents’ claims. 544 U.S. at 6-7 n.4. The Court assumed,

without deciding, that “this Tucker Act question is the

kind of jurisdictional issue that Steel Co. directs must be

resolved before addressing the merits of a claim.” Jd. at

6 n.4. Nonetheless, the Court determined that “applica-

tion of the Totten rule of dismissal, like the abstention

doctrine of Younger v. Harris * * * or the prudential

standing doctrine, represents the sort of ‘threshold ques-

tion’ we have recognized may be resolved before ad-

dressing jurisdiction.” /d. at 6-7 n.4.° See also Vermont

* In support of its reference to the “prudential standing doctrine” as

presenting a threshold issue for those purposes, the Court cited

12

Agency of Natural Res. v. Stevens, 529 U.S. 765, 779

(2000) (holding that the Court could, consistent with

Steel Co., decide whether a State qualifies as a “person”

subject to suit under the False Claims Act, 31 U.S.C.

3729 et seg., before resolving whether the State was im-

mune from suit under the Eleventh Amendment).

As we explain below, the doctrine of forum non

conveniens presents a similar non-merits_ ground for

dismissal that can be decided at the threshold before the

court resolves difficult questions of jurisdiction.

B. Forum Non Conveniens Is A Threshold, Non-Merits

Ground For Dismissal

1. In American Dredging Co. v. Miller, 510 U.S. 443

(1994), the Court characterized the doctrine of forum

non conveniens as “nothing more or less than a super-

vening venue provision.” /d. at 453. Thus, dismissal of

a case under the doctrine of forum non conveniens

“goes to process rather than substantive rights.” /bid.

Notably, the court of appeals in this case also recognized

that a dismissal for forum non conveniens is “not merits —

based.” Pet. App. 19a-21a. That aspect of its decision is

clearly correct.

A dismissal on forum non conveniens grounds re-

flects a determination that the merits should be litigated

Kowalski v. Tesmer, 543 U.S. 125, 129 (2004), in which the Court

assumed Article III standing in order to “address the alternative

threshold question” whether attorneys had third-party standing as a

prudential matter to raise the rights of hypothetical indigents to

challenge a procedure for appointing appellate counsel. See Tenet, 544

U.S. at 7 n.4; see also Steel Co., 523 U.S. at 97 n.2 (stating that a

statutory standing question can be given priority over an Article III

question, citing cases discussed in Justice Stevens’ dissenting opinion,

id. at 115-117); Ortiz v. Fibreboard Corp., 527 U.S. 815, 831 (1999)

(following Steel Co. on that point).

13

in another, more convenient forum. See Piper Aircraft

Co. v. Reyno, 454 U.S. 235, 256 (1981) (recognizing that

“the central purpose of any forum non conveniens in-

quiry is to ensure that the trial is convenient”). Neces-

sarily, therefore, a district court’s dismissal on forum

non conveniens grounds does “not resolve the merits” of

the claim dismissed. Chick Kam Choo v. Exxon Corp.,

486 U.S. 140, 148 (1988). See also Fed. R. Civ. P. 41(b)

(expressly providing that a dismissal for improper venue

is not considered an “adjudication upon the merits”);

American Dredging, 510 U.S. at 453-454 (holding that

the doctrine of forum non conveniens “is one of proce-

dure rather than substance” that “does not bear upon

the substantive right to recover” under federal maritime

law).

Because a forum non conveniens dismissal is not

merits-based, a dismissal on that ground has no claim-

preclusive effect. In Chick Kam Choo, for example, this

Court held that the “relitigation exception” to the Anti-

Injunction Act, 28 U.S.C. 2283, did not authorize a fed-

eral court to enjoin litigation in state court of a claim the

federal court had dismissed on forum non conveniens

grounds after concluding that it should be litigated in

Singapore. 486 U.S. at 148. The Court explained that

the federal court’s forum non conveniens dismissal did

“not resolve the merits” of the claim. /bid.

In fact, as Chick Kam Choo makes clear, because the

forum non conveniens doctrine furnishes a procedural

rule of the forum, a dismissal on that basis does not even

have issue-preclusive effect vis-a-vis another forum.

Thus, in Chick Kam Choo, “the only issue decided” by

the federal court’s forum non conveniens dismissal was

that the plaintiffs “claims should be dismissed under the

federal forum non conveniens doctrine,” and not

14

“whether Texas courts, which operate under a broad

‘open courts’ mandate, would consider themselves an

appropriate forum for petitioner’s lawsuit.” 486 U.S. at

148. Likewise, “a prior state court dismissal on the

ground of forum non conveniens can never serve to di-

vest a federal district judge of the discretionary power

vested in him by Congress to rule upon a motion to

transfer under § 1404(a).” Parsons v. Chesapeake &

Ohio Ry., 375 U.S. 71, 73-74 (1963).”

2. The court of appeals also correctly concluded (Pet.

App. 18a-20a) that the mere fact that a court’s applica-

tion of the forum non conveniens doctrine may require

it to refer to the merits of the claim does not mean that

the doctrine is-merits-based for purposes of Steel Co.

As the court of appeals noted (Pet. App. 18a-19a), at

least one circuit has concluded that Steel Co. requires

addressing personal jurisdiction before forum non

conveniens based on its reading of this Court’s decision

in Van Cauwenberghe v. Biard, 486 U.S. 517 (1988). See

Dominguez-Cota v. Cooper Tire & Rubber Co., 396 F.3d

650, 653 (5th Cir. 2005). In particular, the Fifth Circuit

relied on a passage in Biard stating that a forum non

* A dismissal on forum non conveniens grounds might have issue-

preclusive effect within the same jurisdiction. See Vasquez v. Bridge-

stone/Firestone, Inc., 325 F.3d 665, 678 (5th Cir. 2003). But even that

is not clear and in any event that would not undermine the conclusion

that forum non conveniens is a threshold, non-merits determination.

A dismissal for lack of personal jurisdiction would also have issue-

preclusive effect, see Baldwin v. lowa State Traveling Men’s Assn. , 283

U.S. 522, 524-527 (1931), yet this Court has made clear that that fact

does not prevent a court from dismissing for lack of personal jurisdic-

tion before deciding whether it has subject-matter jurisdiction. See

Ruhrgas, 526 U.S. at 585-586. Indeed, even a ruling on subject matter

jurisdiction can have issue-preclusive effect. See Ins. Corp. of Ir., Ltd.

v. Compagnie des Baurites de Guinee, 456 U.S. 694, 702 n. 9 (1982).

15

conveniens ruling is not “completely separate from the

merits of the action.” /d. at 653 (quoting Biard, 486 U.S.

at 527). However, Biard held only that a district court’s

denial of a motion to dismiss on forum non conveniens

grounds is not immediately appealable under the collat-

eral order doctrine. 486 U.S. at 527. The Court rea-

soned that some, though not all, of the factors that a

court will consider in ruling on a forum non conveniens

motion—such as what evidence will be relevant to the

plaintiffs claim or any defenses—“will substantially

overlap factual and legal issues of the underlying dis-

pute.” Jd. at 529.

The fact that a court undertaking a forum non

conveniens determination may, depending on the cir-

cumstances of the particular case, have to identify the

issues presented by a case and the evidence that would

be relevant to adjudicating those issues does not mean

that a forum non conveniens dismissal is merits-based

for purposes of Steel Co. See Lacey v. Cessna Aircraft

Co., 932 F.2d 170, 181 (38d Cir. 1991) (forum non

conveniens motion requires no more than that the court

“delineate the likely contours of the case by ascertain-

ing, among other things, the nature of the plaintiff's ac-

tion, the existence of any potential defenses, and the

essential sources of proof”). Other threshold inquiries

that the Court has identified as “non-merits” can also

require a court at least to take a peek at the merits.‘

* Nor is there any necessary relationship between issues that are

threshold issues for Steel Co. purposes and issues that are appealable

under the collateral order doctrine. A refusal to dismiss on grounds of

subject matter or personal jurisdiction would not be immediately

appealable, whereas other issues, such as a qualified immunity defense,

are immediately appealable but clearly involve adjudication on the

merits.

16

Ruling on a motion to dismiss for lack of personal juris-

diction, for example, can require a court to determine

whether a defendant’s contacts with the forum relate to

the claim advanced by the plaintiff. See, e.g., Rukrgas,

526 U.S. at 581 n.4 (noting that the district court’s hold-

ing that it lacked personal jurisdiction was based on its

conclusion “that Marathon had not shown that Ruhrgas

pursued the alleged pattern of fraud and misrepresenta-

tion during the Houston meetings”). Likewise, in decid-

ing whether to exercise jurisdiction over pendent state

law claims, a court must assess factors similar to those

considered in conducting a forum non conveniens anal-

ysis—i.e., “judicial economy, convenience and fairness

to litigants”—that require it to make determinations

regarding the complexity and predominance of the state

claims at issue. See United Mine Workers v. Gibbs, 383

U.S. 715, 726 (1966). Nonetheless, this Court has made

* clear that the court may decline to exercise pendent ju-

risdiction over state claims before resolving whether it

would actually have jurisdiction over those claims at all.

See Ruhrgas, 526 U.S. at 585.

Because a forum non conveniens motion presents a

threshold, non-merits issue that does not require the

court to assume “law-declaring power,” Ruhrgas, 526

U.S. at 584 (citation omitted), a court may dismiss on

that basis before resolving questions regarding its juris-

diction.”

* For the reasons already stated, a dismissal is permissible in

appropriate cases on forum non conveniens grounds before the court

ascertains either subject matter or personal jurisdiction. That

conclusion is even more strongly compelled with respect to personal

jurisdiction because, while subject matter jurisdiction is nonwaivable

and “must be policed by the courts on their own initiative even at the

highest level,” personal jurisdiction may be waived by a -party.

17

C. The Doctrine of Forum Non Conveniens Does Not Inde-

pendently Require That A Court First Ascertain Its Own

Jurisdiction Before Dismissing A Suit In Favor Of An

Alternative Forum

1. a. Although the court of appeals correctly deter-

mined that forum non conveniens is a “non-merits pro-

cedural issue,” Pet. App. 21a, it nonetheless held that a

court must find that it possesses jurisdiction before it

can dismiss on forum non conveniens grounds, because

“the very nature and definition of forum non conveniens

presumes that the court deciding this issue has valid

jurisdiction (both subject matter and personal jurisdic-

tion) and venue,” zbid. (citing Gulf Oil Corp. v. Gilbert,

330 U.S. 501, 504 (1947)). That is so, the court reasoned,

because “if [a court] has no jurisdiction ipso facto it can-

not abstain from the exercise of it.” /d. at 25a. There is,

however, no rule, constitutional or otherwise, that pre-

vents a court from dismissing a case on the ground that

if it had jurisdiction, it would decline to exercise that

jurisdiction.

As previously noted, this Court has expressly upheld

the courts’ authority to “decline jurisdiction of'state-law

claims on discretionary grounds without determining

whether those claims fall within their pendent jurisdic-

tion,” Ruhrgas, 526 U.S. at 585, or to invoke “the absten-

tion doctrine of Younger v. Harris” before addressing

jurisdiction. Tenet, 544 U.S. at 6-7 n.4. There is no valid

Ruhrgas, 526 U.S. at 583-584. See Leroy v. Great W. United Corp., 443

U.S. 173, 180 (1979) (holding that because both personal jurisdiction and

venue are waivable, “when there is a sound prudential justification for

doing so, * * * a court may reverse the normal order of considering

personal jurisdiction and venue”).

18

basis for applying a different rule when a court abstains

on the basis of forum non conveniens.

The court of appeals’ analysis was based on its mis-

reading of a statement in Gulf Oil that “the doctrine of

forum non conveniens can never apply if there is ab-

sence of jurisdiction or mistake of venue.” Pet. App. 21a

(footnote omitted; quoting Gulf Oil, 330 U.S. at 504).

That statement is true enough when a court has already

determined that jurisdiction or proper venue is lacking.

At that point, there is no role for forum non conveniens

to play. But Gulf Oil did not present the question

whether a court could dismiss on forum non conveniens

grounds before definitively ascertaining its own jurisdic-

tion. Rather, the question presented was whether even

a court that concededly has jurisdiction and is a proper

venue could decline to exercise its jurisdiction on forum

non conveniens grounds. Thus, the statement on which

the court of appeals relied was made in response to an

argument that because the district court possessed ju-

risdiction, and venue was proper, the court was required

to adjudicate the dispute. See 330 U.S. at 504 (explain-

. ing that the fact that federal statutes “empower [the

district] court to entertain” the suit “does not settle the

question whether it must do so”). it was in that context

that the Court explained that the existence of jurisdic-

tion in the first forum does not preclude application of

forum non conveniens because “[ijn all cases in which

the doctrine of forum non conveniens comes into play,

it presupposes at least two forums in which the defen-

dant” can be sued. /d. at 506-507. While in that sense

the doctrine “presupposes” the propriety of the first

forum, the Court said nothing about a court’s authority

to presume, rather than definitively decide, the propri-

ety of the first forum, or to dismiss on the ground that

~

19

“even if” the first forum does have jurisdiction, that

court would decline to exercise its jurisdiction in favor

of a more convenient venue. American Dredging, 510

U.S. at 448 (doctrine allows court to dismiss case “even

if jurisdiction and proper venue are established”) (em-

phasis added).° -

b. There is nothing unique about forum non

conveniens and other venue-type determinations that

require that they—unlike other non-merits, threshold

issues—can be decided only after the court has ascer-

tained its jurisdiction. To the contrary, in other con-

texts, this Court has held that a court may make venue

determinations without first ensuring that it possesses

jurisdiction. For example, courts can, and sometimes

should, dismiss a case on venue grounds before address-

ing the question of personal jurisdiction, such as when

the jurisdictional question poses a difficult constitutional

issue. See Leroy v. Great W. United Corp., 443 U.S. 173,

180-181 (1979) (reversing judgment on the ground that

the district court lacked venue, without reaching the

question of persona] jurisdiction).

In Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962),

moreover, the Court held that a district court may trans-

fer the case to another venue pursuant to 28 U.S.C.

* In support of its conclusion, the court of appeals cited (Pet. App.

23a) 15 Charles Alan Wright et al., Federal Practice and Procedure

§ 3828, at 287 (2d ed. 1986). Notably, that treatise provides no analysis

to support the assertion, and no authority other than the language in

Gulf Oil discussed above. Another respected treatise concludes, to the

contrary, that “{t}he Second and D.C. Circuits have the better view.

Just as the Supreme Court rejected the view that subject matter

jurisdiction must be decided first in favor of a more flexible rule, the

Court is likely to reject the absolute view adopted by the |court of

appeals] here.” 17 James Wm. Moore, Moore's Federal Practice

§ 111.90A at 111-248.2-248.3 (3d ed. 2006).

20

1406(a), which authorizes a district court to transfer a

case filed in an improper venue “if it be in the interest of

justice,” whether or not the transferor court has per-

sonal jurisdiction over the defendant. See 369 U.S. at

466 (Section 1406(a) authorizes transfer of a case

“whether the court in which it was filed had personal

jurisdiction over the defendants or not”). Subsequent to

Goldlawr, Congress provided courts express statutory

authority to order a transfer of venue “in the interest of

justice” in a case in which the court “finds that there is

a want of jurisdiction.” 28 U.S.C. 1631.

Similarly, a majority of circuits have held that, like

a transfer under Section 1406(a), a transfer under 28

U.S.C. 1404(a), which authorizes transfer for reasons of

convenience even when venue is proper in the transferor

court, can also be made even if the transferor court lacks

personal jurisdiction over the defendant. See, e.g., Fort

Knox Music Inc. v. Baptiste, 257 F.3d 108, 112 (2d Cir.

2001); Myelle v. American Cyanamid Co., 57 F.3d 411,

413-414 (4th Cir. 1995); Follette v. Wal-Mart Stores,

Inc., 41 F.3d 1234, 1238 (8th Cir. 1994); Coté v. Wadel,

796 F.2d 981, 985 (7th Cir. 1986); United States v.

Berkowitz, 328 F.2d 358, 361 (3d Cir.), cert. denied, 379

U.S. 821 (1964); Koehring Co. v. Hyde Constr. Co., 324

F.2d 295, 297-298 (5th Cir. 1963). Ironically, three of the

circuits that have applied Goldlawr to Section 1404(a)—

the Third, Fifth, and Seventh—are among those (includ-

ing the court of appeals in this case) that have held that

forum non conveniens dismissals require that a court

first establish its jurisdiction. See Pet. App. 16a-17a

(citing Dominguez-Cota v. Cooper Tire & Rubber Co.,

396 F.3d 650 (5th Cir. 2005); and Kamel v. Hill-Rom Co.,

oa

asaecas leg

108 F.3d 799 (7th Cir. 1997)).’ None of those decisions

concerning forum non conveniens has discussed, much

less distinguished, the respective circuit’s contrary rule

with respect to Section 1404(a).”

‘But see Intec USA, LLC v. Engle, No. 06-1117, 2006 WL 3093644,

at *2 (7th Cir. Nov. 2, 2006) (disagreeing with the Third Circuit’s

reading of Kamel and adopting the dissenting views of Judge Stapleton

(discussed at p. 7, supra)).

* Two courts of appeals have held, based on an analysis similar to

that of the Third Circuit in this case, that a court cannot transfer a case

under Section 1404(a) if it lacks personal jurisdiction over the defen-

dant. See Albion v. YMCA Camp Letts, 171 F.3d 1, 2 (1st Cir. 1999);

Martin v. Stokes, 623 F.2d 469, 474 & n.7 (6th Cir. 1980). Cf.

McFarlane v. Esquire Magazine, 74 F.3d 1296, 1301 (D.C. Cir.) (noting

issue, but declining to resolve it), cert. denied, 519 U.S. 809 (1996);

Nelson v. International Paint Co., 716 F.2d 640, 643 n.4 (9th Cir. 1983) -

(same). The Tenth Circuit has adopted a different approach, holding

that when a court lacks personal jurisdiction, “the proper course of

action since the enactment of 28 U.S.C. § 1631 is to transfer pursuant

to that statute.” Viernow v. Euripides Dev. Corp., 157 F.3d 785, 793

(1998).

We note one significant difference between transfers under Section

1404(a) and dismissals on forum non conveniens grounds. When a case

‘brought under a federal court’s diversity jurisdiction is transferred

under Section 1404(a), the transferee court is required to apply the law

of the transferor court, see Ferens v. John Deere Co., 494 U.S. 516, 523

(1990); Van Dusen v. Barrack, 376 U.S. 612, 635-637 (1964), whereas a

case transferred under Section 1631 for lack of jurisdiction is governed

by the law of the transferee court, see 28 U.S.C. 1631 (after transfer

“the action * * * shall proceed as if it had been filed in * * * the

court to which it is transferred”). That difference was one reason why

the Tenth Circuit concluded that transfer under Section 1631, rather

than 1404(a), is appropriate when the transferor court lacks jurisdic-

tion. Viernow, 157 F.3d at 793-794. Because of the different effect of

transfers under Section 1404(a) and Section 1631, a transferor court

sitting in diversity may need to decide a dispute concerning its

jurisdiction in order to know which section is the proper basis for its wa

transfer. That problem is not presented with respect to a dismissal on

ERT Aes ree EOE

22

The district court’s discretionary determination in

this case that it would not exercise jurisdiction over the

parties’ dispute, even if jurisdiction existed, is certainly

no more problematic than the analogous venue-related

determinations that this Court and Congress have ex-

pressly endorsed. If anything, altogether declining to

exercise jurisdiction that a court might have is less

problematic than affirmatively exercising authority to

transfer a case when the court has already determined

that it lacks jurisdiction, as is permitted under Section

1406(a), as construed in Goldlawr, and Section 1631.

2. Contrary to the understanding of the court of

appeals (Pet. App. 23a), this Court, when it affirmed the

Ninth Circuit’s decision in Patrickson v. Dole Food Co.,

251 F.3d 795 (9th Cir. 2001), aff'd in part, cert. dismissed

in part, 538 U.S. 468 (2003), did not “inferentially” de-

termine that “forum non conveniens dismissals are in-

valid if the district court does not have subject matter

jurisdiction.”

In Patrickson, two Israeli corporate defendants re-

moved a state tort suit to federal court, each claiming to

be an “agency or instrumentality” of the Israeli govern-

ment entitled to the protections of the FSIA, 28 U.S.C.

1603(a). 251 F.3d at 798, 805. The district court upheld

its jurisdiction and dismissed the suit on forum non

forum non conveniens grounds. In Piper Aircraft, the Court specifi-

cally held that the reasoning of Van Dusen does not apply to forum non

conveniens. 454 U.S. at 253. Under forum non conveniens, the case is

dismissed, rather than transferred, and the foreign jurisdiction will _

decide for itself what law to apply, whether or not the first court had

jurisdiction. See id. at 247 (“The possibility of a change in substantive

law should ordinarily not be given conclusive or even substantial weight

in the forum non conveniens inquiry.”).

23

conveniens grounds. Jd. at 798. The Ninth Circuit re-

versed on the question of jurisdiction and directed that

the case be remanded to state court. /d. at 808-809. The

court of appeals declared in a footnote, without analysis,

that “federal courts may decide [the forum non

conveniens| issue only if we have jurisdiction over the

ease.” Jd. at 800 n.3. On review of the Ninth Circuit’s

decision, this Court did not address that issue. See Dole

Food Co. v. Patrickson, 538 U.S. 468 (2003); see also Pet.

App. 35a n.26 (Stapleton, J., dissenting). The questions

on which the Court granted certiorari involved only the

proper construction of the “agency or instrumentality”

provision of the FSIA. See 538 U.S. at 472. The Court

affirmed the Ninth Circuit, concluding that the Israeli

defendants were not entitled to invoke the FSIA. /d. at

480. The Court did not discuss in any way whether the

court of appeals or district court could have addressed

forum non conveniens before addressing jurisdiction.”

* The Ninth Circuit’s reversal of the forum non conveniens dismissal

in Patrickson may have been correct for a reason wholly separate from

the question presented in this case. The order of the district court

dismissing the case on forum non conveniens grounds had conditioned

dismissal on the defendants’ waiving certain defenses to suit against

them in the courts of the plaintiff's “home country or in the country in

which his injury occurred.” Pet. App. at 77a, Dole Food Co. v.

Patrickson, supra (No. 01-593). Assuming, as we urge, that a court can

dismiss on forum non conveniens grounds before ascertaining its

jurisdiction, it would be a different question whether a court could

condition such a dismissal, as the district court did in Patrickson,

without first deciding that the court had authority over the defendant.

See Jn re Minister Papandreou, 139 F.3d 247, 256 n.6 (D.C. Cir. 1998)

(holding that no conditions can be placed on such a dismissal). But see

Kryvicky v. Scandinavian Airlines Sys., 807 F.2d 514, 516 (6th Cir.

1986) (permitting conditional dismissal without ascertaining jurisdic-

tion); Turendi v. Coca-Cola Co.,No. 05 Civ. 9635, 2006 WL 3187156, at

*21 n.2 (S.D.N.Y. Nov. 2, 2006) (knowing whether the defendant is

24

Although this Court did not in Patrickson endorse

, the part of the Ninth Circuit’s ruling regarding forwm

non conveniens dismissals, the Court did, in Ruhrgas,

quote approvingly from the principal appellate case on

the other side of the debate, Jn re Minister Papan-

dreou, 139 F.3d 247 (D.C. Cir. 1998). In Papandreou,

the D.C. Circuit emphasized that “[w]hat is beyond the

power of courts lacking jurisdiction is adjudication on

the merits, the act of deciding the case.” 139 F.3d at

255. The court held that “abstentior trom the exercise

of jurisdiction” on the ground of forum non conveniens

“is as merits-free as a finding of no jurisdiction,” and

thus presented a proper non-merits, threshold basis for

dismissing a case prior to establishing subject matter

jurisdiction. 7bid. In Ruhrgas, this Cuurt approvingly

cited the analysis in Papandreou that a “court that dis-

misses on . . . non-merits grounds suchas .. . per-

sonal jurisdiction, before finding subject-matter juris-

diction, makes no assumption of law-declaring power

that violates the separation of powers.” 526 U.S. at 584-

585 (quoting Papandreou, 139 F.3d at 255); see Tenet,

willing to waive a limitations defense “may * * * be necessary to the

forum non conveniens analysis itself”). This case does not involve a

conditional dismissal, so the Court need not address that issue.

In his dissenting opinion (Pet. App. 35a n.26), Judge Stapleton offer-

ed another basis for distinguishing Patrickson. In his view, because (as

determined by the Ninth Circuit) that case had been improperly re-

moved from state court, federalism and comity considerations called for

a remand to state court to resolve the forum non conveniens issue.

Because this case originated in federal court, that issue likewise is not

presented here. We note, however, that this Court rejected a similar

argument in Ruhrgas. See 526 U.S. at 585-586 (rejecting argument

that the district court must rule on a motion to remand for lack of

subject matter jurisdiction before dismissing for lack of personal juris-

diction over the defendant).

7

25

544 U.S. at 6-7 n.4. See also Jn re Arbitration Between

Monegasque de Reassurances S.A.M. v. Nak Naftogaz

of Ukraine, 311 F.3d 488, 498 (2d Cir. 2002) (adopting

the D.C. Circuit’s analysis in Papandreou with respect

to forum non conveniens dismissals)."”

D. Permitting Courts To Dismiss on Threshold, Non-Merits

Grounds, Such As Forum Non Conveniens, Before Adju-

dicating Complex Jurisdictional Issues Promotes Article

III Values

This Court has “repeatedly emphasized the need to

retain flexibility” in the application of the forum non

conveniens doctrine. Piper Aircraft, 454 U.S. at 249.

For example, the Court has rejected the contention that

a district court should give substantial weight to the

possibility that the law of the alternative forum would be

less favorable to the plaintiff. Jd. at 251. The Court

explained that the forum non conveniens doctrine “is

designed in part to help courts avoid conducting complex

exercises in comparative law,” thereby promoting the

public interest in judicial economy. /bid.; see Gulf Oil,

330 U.S. at 508-509. The rule embraced by the court of

appeals similarly undermines the interests in judicial

In addition to the decisions of the Second and D.C. Circuits, which

the court of appeals noted, Pet. App. 24a-25a, the Sixth Circuit and,

subsequent to the court of appeals’ decision, the Seventh Circuit have

also held that a court may dismiss on forum non conveniens grounds

before deciding jurisdiction. See /ntec LSA, LLC v. Engle,, 2006 WL

3093644, at *2 (“Unlike the majority in Sinochem, we do not read [the

Seventh Circuit's prior decision in] Kamel as committing this court to

a rule that subject-matter jurisdiction always must be resolved ahead

of forum non conveniens.”); Kryvicky, 807 F.2d at 516 (rejecting the

plaintiffs argument that “the district court should have withheld

consideration and disposition of the forum non conveniens motions

until after it had resolved the issue of personal jurisdiction”).

26

economy that the doctrine is designed to promote, as

well as the judiciary’s interest in not becoming unduly

enmeshed in foreign controversies or matters with po-

tentially adverse effects on our foreign relations.

There is no evident reason why the district courts

(and courts of appeals on review) should be required to

expend considerable judicial resources to resolve poten-

tially complicated questions of jurisdiction, when the

result of that inquiry would not change the ultimate dis-

position of dismissal.'' Such wasted judicial effort and

expense should particularly be avoided in cases subject

to dismissal based on the forwm non conveniens doc-

trine, because there is no substantial reason for those

cases to be litigated in United States courts in the first

place. That is especially so when jurisdictional litiga-

tion, including possible discovery with respect to the

issue of personal or subject matter jurisdiction, would

likely be extensive and impose upon defendants pre-

cisely the types of burdens that the forum non con-

veniens doctrine is intended to avoid. See, e.g., Ameri-

can Dredging, 510 U.S. at 448-449.

indeed, it is difficult to discern any substantial inter-

est that would be advanced by requiring jurisdictional

determinations as a prerequisite to a forum non con-

veniens dismissal. The burdens that such a rule would

impose on courts and defendants are not counterbal-

anced by any benefit to plaintiffs. A plaintiff has little to

gain by litigating the jurisdictional question. If he loses,

the case is dismissed on jurisdictional grounds; if he

" Indeed, the court of appeals noted that it did not reach its holding

“without some regret,” because requiring a court to establish jurisdic-

tion prior to dismissing for forum non conveniens “may not seem to

comport with the general interests of judicial economy and may, in this

case, ultimately result in a waste of [judicial] resources.” Pet. App. 26a.

27

wins, the case is dismissed for forum non conveniens.

In either case, he has expended both time and money in

pursuit of a fruitless goal. His only apparent interest in

pressing the issue would be to extend the litigation and

perhaps prompt a settlement. That interest plainly does

not justify the hardships that the rule would impose.

Similarly, no interest of the defendant would be served

by a rule that required a court to resolve potentially

complex issues of subject matter or personal jurisdiction

before ruling on the defendant’s motion to dismiss on

forum non conveniens grounds.

Moreover, jurisdictional determinations frequently

raise constitutional questions, and requiring a court to

resolve them when it could dismiss on another non-mer-

its, threshold ground is contrary to the principle of con-

stitutional avoidance. See Leroy, 443 U.S. at 181 (decid-

ing question of venue before personal jurisdiction be-

cause the jurisdictional question presented a novel con-

stitutional issue).

In other cases, resolution of the jurisdictional inquiry

can require the resolution of issues with sensitive for-

eign relations ramifications even though such pro-

nouncements could be entirely avoided by a dismissal on

forum non conveniens grounds. For example, in

Turendi v. Coca- Cola Co., No. 05 Civ. 9635, 2006 WL

_ 3187156 (S.D.N.Y. Nov. 2, 2006), the district court dis-

missed a suit on forum non conveniens grounds, without

reaching questions of subject matter and personal juris-

diction, that was brought by Turkish citizens alleging

that they had been attacked and tortured by Turkish

police at the direction of a Coca-Cola bottling joint ven-

ture in Istanbul. /d. at *2, *13-*22. The court found

that “the case presents immensely complex jurisdic-

tional issues” that would require resolution of “delicate”

28

questions implicating “United States foreign policy in-

terests” and “the lawfulness of official conduct by for-

eign government agents.” /d. at *10, *12.

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

illustrates another setting in which resolution of a forum

non conveniens motion might be appropriate at the

threshold, without resolving a difficult jurisdictional

issue. The lower courts in Altmann rejected a forum

non conveniens argument, determining that an Austrian

court was not an adequate alternative forum because of

the plaintiff's age. Altmann v. Republic of Austria, 317

F.3d 954, 973-974 (9th Cir. 2002), aff'd, 541 U.S. 677

(2004). If the facts bearing on forum non conveniens

had been only slightly different, a dismissal on that

ground might have spared years of litigation about Aus-

tria’s immunity under the FSIA, which included an ex-

position by the court of appeals regarding the United

States’ foreign policy with respect to World War II-era

claims against Austria, id. at 965-966. Ultimately, the

parties agreed to binding arbitration of the dispute in

Austria, under Austrian law—a disposition similar to

what Austria had long sought under the forum non

conveniens doctrine. See Austrian Press Agency, Am-

bassador Nowotny: Klimt Arbitration Welcomed by

U.S. Side (May 24, 2005) <http://www.austria.org/

altpress/327a.html>. In cases that would ultimately be

dismissed on forum non conveniens grounds in any

event, intrusive jurisdictional discovery subjects foreign

governments to substantial burdens that are wholly un-

necessary. Just as the United States would want to have

similar cases filed against it abroad dismissed promptly,

foreign governments seek such treatment here.

Like forum non conveniens, other non-merits

grounds, e.g., international comity, exhaustion, or the

29

political question doctrine may also prove appropriate

- threshold bases of dismissal in cases involving foreign

claims or parties. See U.S. Br., Mujica v. Occidental

Petroleum Corp., No. 05-56056 (9th Cir. filed Mar. 20,

2006) (urging affirmance of dismissal on international

comity grounds without deciding whether the court’s

jurisdiction under the ATS extends to claims that arise

extraterritorially); Sarei v. Rio Tinto, PLC., 456 F.3d

1069, 1100-1122 (9th Cir. 2006) (Bybee, J., dissenting)

(arguing that the court of appeals should have declined

to reach jurisdictional issues relating to the scope of the

ATS on the ground that the suit should be dismissed

without prejudice until the plaintiffs had exhausted rem-

edies available in the foreign forum); Hwang Geum Joo

v. Japan, 413 F.3d 45, 47-48, 52-53 (D.C. Cir. 2005) (dis-

missing on political question grounds an action by Ko-

rean, Chinese, and Philippine women alleging that the

Japanese army subjected them to sexual slavery during

World War II, without resolving whether Japan’s al-

leged conduct would be “commercial activity” within the

meaning of the FSIA), cert. denied, 126 S. Ct. 1418

(2006).'* Cf. Tenet, 544 U.S. at 7 n.4 (to “allow discovery

® The District of Columbia Circuit held that the political question

doctrine can be addressed before subject matter jurisdiction under the

FSIA because the political question doctrine is a “jurisdictional

limitation[].” Hwang Geum Joo, 413 F.3d at 47 (citation omitted).

There is, however, some uncertainty “whether dismissal on political

question grounds is jurisdictional or prudential in nature.” Arakaki v.

Lingle, 423 F 3d 954, 962 (9th Cir. 2005), vacated and remanded on

other grounds, 126 S. Ct. 2859 (2006). See Goldwater v. Carter, 444

U.S. 996, 1000 (1979) (Powell, J., concurring) (“[T The political-question

doctrine rests in part on prudential concerns calling for mutual respect

among the three branches of Government.”). Either way, however,

treatment of the political question doctrine as a threshold issue for Steel

Co. purposes clearly serves the interests that underlie the Stee/ Co. and

30

or other proceedings in order to resolve the jurisdic-

tional question” would defeat the purposes of the Totten

bar to suits based on secret espionage agreements).

The inflexible rule adopted by the court of appeals

would force the federal courts to resolve even difficult

jurisdictional issues with potentially significant implica-

tions for the Nation’s foreign relations before dismissing

a case in favor of a more appropriate forum in the coun-

try in which the claims arose. Although the court of ap-

peals believed itself to be constrained by principles of

judicial restraint rooted in Article III, see Pet. App. 26a,

its approach undermines, rather than furthers, separa-

tion of powers interests that this Court has often ac-

knowledged. See, e.g., Sosa v. Alvarez-Machain, 542

U.S. 692, 727 (2004) (noting that “the potential implica-

tions for the foreign relations of the United States of

recognizing” causes of action for violating international

law “should make courts particularly wary of impinging

on the discretion of the Legislative and Executive

Branches in managing foreign affairs”)."*

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

Ruhrgas decisions as well as the foreign policy interests of the United

States.

" The United States does not suggest that litigation of the present

case in federal district court would adversely affect our foreign

relations. However, the court of appeals’ categorical rule that jurisdic-

tional questions must be resolved before a court may abstain from

exercising jurisdiction under a discretionary doctrine such as forum

non conveniens would deny courts the flexibility necessary to deal with

cases that do present foreign affairs concerns.

NOVEMBER 2006

31

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

DOUGLAS H. HALLWARD-DRIEMEIER

Assistant to the Solicitor General

MICHAEL 8S. RAAB

STEPHANIE R. MARCUS

ERIC J. FEIGIN

Attorneys