Opposition Brief — Airbus Industrie, G. I. E. v. Linton

a

(3) FILER

No. 94-684 -

IN THE NOV 16 1994

SUPREME COURT OF THE UNI FAELG« |

October Term 1994

AIRBUS INDUSTRIE, ET AL.,

Petitioners,

Vv.

LAURA HOWELL LINTON, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

David W. Holman Michael J. Maloney

Counsel of Record Fisher, Gallagher & Lewis, L.L.P.

Holman Hogan, L.L.P. First Interstate Bank Plaza

Lyric Office Centre 70th Floor

440 Louisiana, Suite 1410 Houston, Texas 77002

Houston, Texas 77002 (713) 654-4433

(713) 222-8800

Francis I. Spagnoletti

Spagnoletti & Associates

1600 Smith, Suite 4545

Houston, Texas 77002

(713) 653-5600

Counsel for Respondents

LANTAGNE DUPLICATING SERVICES y\

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477 , 3

ni

QUESTION PRESENTED

Whether 28 U.S.C. § 1447(d) bars appellate review of

an order of remand based on lack of jurisdiction where the

removing party failed to prove its right to remove under the

Foreign Sovereign Immunities Act.

TABLE OF CONTENTS

Page

ogy 8 Be yy | i

pes ss. iv

MPU OE gk ke ee eee 2

masspememevs Gn BRO CASE .................. 2

REASONS TO DENY THE WRIT ............... $

I. The Fifth Circuit Correctly Held

That The District Court's Remand Order

Was Unreviewable On Appeal. ........ 5

Il. The Fifth Circuit's Opinion Is In Harmony

With Other Circuits Since The FSIA

Finding Was Jurisdictional And

kc kee ee 8

A. This Case Does Not Fit Within

The Waco Exception Since There

Was No Preclusive Denial

EE 9

B. This Case Does Not Fit Within The

TMI Exception Since There Was

No Finding Of Unconstitutionality. 10

Table of Contents (continued)

Page

.. This Case Does Not Fit Within

The Pelleport/Clorox Exception

Since The Remand Order Was

Based On Lack Of Jurisdiction. .. 11

Ill. The Fifth Circuit Opinion Will Not

Produce Anomalous Results Since It

Was Based On Its Own Facts. ........ 13

GN 0d Sr Gis ohn’ wah 8 ek Ad oe 2 oo 15

TABLE OF AUTHORITIES

Cases Page(s)

Baldridge v. Kentucky-Ohio Transportation, Inc..,

483 F.2d 1341 (6th Cir. 1993) .......... 9,12

Carr v. American Red Cross,

ee 10

City of Waco v. United States Fidelity & Guaranty Co.,

as Gb wo os 6 0 aw 8 8 9, 10

Clorox Co. v. United States District Court,

779 F.2d 517 (9th Cir. 1985) .......... 11, 12

Cohen v. Beneficial Industrial Loan Corp..,

re 6

Compania Mexicana de Aviacion v. United States

District Court,

859 F.2d 1354 (9th Cir. 1988) ............. 5

Coopers & Lybrand v. Livesay,

er 3

Foster v. Chesapeake Ins. Co..

933 F2d 1207 (3d Cir.),

cert. Gamied, 112 S.Ct. S02 (1991) .......... 12

Glasser v. Amalgamated Workers Union Local 88,

806 F.2d 1539 (11th Cir. 1986)............ 12

Table of Authorities (continued)

Cases Pages(s)

Gould, Inc. v. Pechiney Ugine Kuhlman & Trefimetaux,

Se Wau ee We Ge. EOD ne cine 6

Gravitt v. Southwestern Bell Telephone Co. ,

430 U.S. 723 (1977) (per curiam) ........... 6

In re TMI Litigation Cases,

940 F.2d 832 (3d Cir. 1991), cert. denied

fog &. M ... . AR a arr 10, 11

In re Texas E. Transmission Corp. PCB Contamination

Ins. Coverage Litig.,

15 F.3d 1230, n. 8 (3rd Cir.), cert. denied,

63 U.S.L.W. 3009 (U.S. Oct. 3, 1994) ....... 13

Karl Koch Erecting Co. v. New York Convention

Ctr. Dev. Corp.,

ee De a a | a 12

Kern v. Jeppesen Sanderson, Inc..,

No. 14-93-3065 (S.D. Tex., June 13, 1994,

la bo sw ss eed ee 13, 14

Linton v. Airbus Industrie,

794 F.Supp. 650, n.3 (S.D. Tex. 1992), appeal

dism'd, 30 F.3d 592 (Sth Cir. 1994) ....... 3, 14

Table of Authorities (continued)

Cases Pages(s)

McDermott Int'l, Inc. v. Lloyds Underwriters,

944 F.2d 1199, n. 5 (Sth Cir. 1991) ......... 12

Mobil Corp. v. Abeille General Ins. Co.,

984 F.2d 664 (Sth Cir. 1993) ........... 7, 43

Nutter v. Monongahela Power Co..,

4 F360 SED Ca Cm. T9989) ww ce eee 9-11

Pelleport Investors v. Budco Quality Theatres, Inc.,

741 F.2d 273 (9th Cir. 1984) .......... 11, 12

Puerto Rico Aqueduct and Sewer Authority v.

Metcalf & Eddy, Inc..,

ere eee eee 14

Regis Associates v. Rank Hotels (Management) Ltd. .,

894 F.2d 193 (6th Cir. 1990) ............. 12

Rush Presbyterian-St. Lukes Medical Center v.

The Hellenic Republic,

877 F.2d 574, n. 2 (7th Cir. 1989),

cert. denied, 110 S.Ct. 333 (1990) ........... 5

Stena Rederi AB v. Comision de Contratos,

ee ee ee ee es BED ce ee ewe 5

vi

Table of Authorities (continued)

Cases Pages(s)

Thermtron Products, Inc. v. Hermansdorfer,

SS er eae 6, 7, 15

United States v. Rice,

oe eee eerste wesnnn 7

Verlinden B.V. v. Central Bank of Nigeria,

a pied a oo 08 6-6 eo a 15

Whitman v. Raley’s Inc.,

886 F.2d 1177 (9th Cir. 1989) ............. )

Statutes, Rules & Regulations

Be eee eee 2, 4, 8, 14, 15

Foreign Sovereign Immunities Act,

a ee passim

Vil

NO. 94-684

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

AIRBUS INDUSTRIE, ET AL.,

Petitioners,

Vv.

LAURA HOWELL LINTON, ET AL.,

Respondents.

BRIEF IN OPPOSITION

Respondents, Laura Howell Linton, ef al.', respectfully

request that this Court deny the petition for writ of certiorari

which seeks review of the Fifth Circuit's opinion below. That

opinion is reported at 30 F.3d 592 (Sth Cir. 1994) and is

reprinted in the petition for certiorari at Appendix A.

'The full list of respondents is included in the "Parties" section of

the petition for certiorari.

STATUTES INVOLVED

28 U.S.C. § 1447(d) provides:

An order remanding a case to the state court

from which it was removed is not reviewable on

appeal or otherwise, except that an order

remanding a case to the state court from which

it was removed pursuant to section 1443 of this

title [civil rights cases] shall be reviewable by

appeal or otherwise. (brackets supplied)

STATEMENT OF THE CASE

In March, 1992, Airbus Industrie and Aeroformation

(the "Airbus Defendants") removed separate wrongful death

actions filed in Texas state court to federal court based upon

the allegation of federal question jurisdiction under the Foreign

Sovereign Immunities Act, 28 U.S.C. § 1602 ("FSIA") and

diversity jurisdiction.

The Airbus Defendants based their right to FSIA

removal solely upon a contention that they were a "foreign

State" -- despite the undisputed fact that no foreign state owned

a majority interest in those entities. See 28 U.S.C. §

1602(b)(2). This "foreign state" contention depended upon a

convoluted three-tiered formula in which the defendants

asserted that, although they were owned by entities which were

not themselves foreign states, those entities had minority

interests by foreign states that, when pooled together, equaled

a “foreign state" for the purposes of the FSIA. The district

court found, even assuming for the sake of argument that the

defendants’ calculations were correct’, that the defendants had

failed to prove that they were a "foreign state" for the purposes

of the FSIA. See Petition, at E-7. Contrary to the petitioners’

assertion, this order did not deny immunity under the FSIA nor

did it address the petitioners’ pending motions to dismiss. The

order merely addressed the question of proper removal

jurisdiction.

The Airbus Defendants attempted an interlocutory

appeal of that order, but the Fifth Circuit dismissed that appeal

and held that the FSIA order was not final nor appealable, that

the defendants had not sought certification and that the

collateral order doctrine’ did not apply. See Petition, at I-1,2.

The Fifth Circuit specifically found that the order "did not

dispose of plaintiffs' motion to remand nor Airbus Defendants’

various motions to dismiss." /d. (emphasis added).

After that appeal, the district court first denied remand

based on diversity but later granted remand based upon a

2 The plaintiffs disputed the accuracy and admissibility of the

defendants’ calculations and presented other evidence which proved that

even under defendants’ convoluted formula, there was no majority interest.

The district court accepted the defendants’ calculations only for the purposes

of the order and made no final resolution of the matter. See Linton v.

Airbus Industrie, 794 F.Supp. 650, 652 n.3 (S.D. Tex. 1992), appeal

dism'd, 30 F.3d 592 (Sth Cir. 1994).

> The collateral order doctrine permits interlocutory appeals if an

order “conclusively” determines the disputed question, resolves an important

issue “separate from the merits of the action," and is effectively

unreviewable on appeal from a final judgment. Coopers & Lybrand v.

Livesay, 437 U.S. 463, 468 (1978).

stipulation of citizenship filed by the defendants. See Petition,

at B-9. Based upon that admission, the district court concluded

"that it lacks subject matter jurisdiction." Jd. at B-10*.

The district court expressly ordered that plaintiffs’

motion to remand is "GRANTED FOR LACK OF SUBJECT

MATTER JURISDICTION" 7d. (capitals in origina!)

Notwithstanding the acknowledged bar to appellate

review of orders of remand based on lack of jurisdiction

contained in 28 U.S.C. § 1447(d), the Airbus Defendants

attempted to invoke appellate jurisdiction under direct appeal,

the separable order doctrine, a recall of the prior mandate, the

collateral order doctrine, and mandamus. The Fifth Circuit

found that the district court's FSIA order was a "jurisdictional

finding under the facts of this case and, as such, can be

reviewed by the state court upon remand." See Petition, at A-

11. Since neither the separable order doctrine nor any other

theory applied to avoid the section 1447(d) bar to review, the

Fifth Circuit dismissed the appeal.

In this petition, the Airbus Defendants argue only that

the separable order doctrine applies to circumvent section

1447(d)'s well-established bar to appellate review. A review

of the facts of this case and relevant authorities reveals that the

doctrine does not apply and that certiorari should be denied.

* The petitioners do not contend in their petition that the district

court's finding that there was no diversity jurisdiction was erroneous.

4

REASONS TO DENY THE WRIT

3 The Fifth Circuit Correctly Held That The District

Court's Remand Order Was Unreviewable On

Appeal.

In an effort to obtain review here, the petitioners have

mischaracterized the nature of the question presented. The

petitioners’ question presented suggests that the district court

below issued a separable order "denying a party's claim of

immunity from suit under the Foreign Sovereign Immunities

Act." See Petition, "Question Presented For Review," at i.

This suggestion is incorrect.

The district court never ruled on the Airbus Defendants’

motions to dismiss for immunity because the court found that

it lacked subject matter jurisdiction to do so and remanded the

case. The Airbus Defendants can point to no order in this

record in which the district court denied their claim of FSIA

immunity. As the Fifth Circuit found, the district court's FSIA

order was a non-final, non-preclusive jurisdictional finding,

which decided only that the defendants had failed to meet their

burden to prove their claims of removal jurisdiction.

Of course, if the district court had issued a final order

which denied the Airbus Defendants' claim of FSIA immunity,

then such an order would be appealable under the "collateral

order" doctrine. See e.g. Stena Rederi AB v. Comision de

Contratos, 923 F.2d 380, 385 (Sth Cir. 1991); Rush

Presbyterian-St. Lukes Medical Center v. The Hellenic

Republic, 877 F.2d 574, 576 n. 2 (7th Cir. 1989), cert. denied,

110 S.Ct. 333 (1990); Compania Mexicana de Aviacion v.

United States District Court, 859 F.2d 1354, 1358 (9th Cir.

1988); Gould, Inc. v. Pechiney Ugine Kuhlman & Trefimetaux,

853 F.2d 445, 450 (6th Cir. 1988).

But because there was no final, conclusive denial of

FSIA immunity in this case, the defendants cannot take solace

in the "collateral order" doctrine. See Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541 (1949). Thus, they

attempt to manufacture a "separable order" premise to invoke

appellate review. As the Fifth Circuit found, this premise does

not "hang together." See Petition, at A-8.

Review is precluded here because the district court's

jurisdictional findings in conjunction with an order of remand

are immunized from appellate review by 28 U.S.C. § 1447(d),

even if those findings are clearly erroneous. See Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343 (1976);

Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723,

723-24 (1977) (per curiam) (review precluded even if the

district court "employed erroneous principles in concluding that

it was without jurisdiction"). This has been the rule since

1887. Thermtron Products, Inc., 423 U.S. at 343.

The rationale behind this long established rule was

succinctly stated by Chief Justice (then Justice) Rehnquist in

1976:

If anything is clear from the history of the

prohibition against review, it is that Congress

decided that potential errors in individual cases

did not justify permitting litigants to challenge

remand orders. To carry out its policy of

avoiding further interruption of the litigation of

removed causes, properly begun in state

courts...Congress decided to place final

responsibility for implementation of its removal

scheme with the district courts.

Id. at 360-61 (Rehnquist, J., dissenting). The Fifth Circuit

recognized and reaffirmed this rule in its opinion below.

The Airbus Defendants also suggest that this case

should somehow be different because removal was predicated

on the FSIA. This suggestion that the rule should apply

differently for different categories of cases was rejected by this

Court in 1946. See United States v. Rice, 327 U.S. 742

(1946). There, removal was predicated not on the general

removal statutes then in effect, but on a special removal statute

which involved federally restricted land interests of an Indian.

in response to an argument that the forerunner of section

1447(d) did not apply to this special statute, the Court held that

the bar to appellate review was "intended to be applicable not

only to remand orders made in suits removed under [the

general removal statutes], but to cases removed under any other

statutes, as well." Jd. at 752; see also Mobil Corp. v. Abeille

General Ins. Co., 984 F.2d 664, 666 (Sth Cir. 1993) ("Section

1447(d) predated FSIA and its removal provision, but Congress

made no exception for appellate review of a remanded FSIA

case, as it has done for civil rights and FDIC cases.")

The district court below found that the defendants had

failed to prove their right to FSIA removal and the court

remanded the case. Under section 1447(d), the district court's

findings, even if erroneous, are not reviewable on appeal. For

this reason, the Fifth Circuit was correct and the petiticn for

certiorari should be denied.

II. The Fifth Circuit's Opinion Is In Harmony With

Other Circuits Since The FSIA Finding Was

Jurisdictional And Not Preclusive.

In an effort to invoke this Court's jurisdiction, the

petitioners attempt to create a conflict where there is none.

Not a single one of the cases which the petitioners cite as being

in conflict with the decision below involved FSIA removal or

even similar facts. All involve carefully delineated and narrow

exceptions that do not apply to the facts of this case. The

petitioners have attempted to merge these narrow exceptions

together into a single expansive doctrine which they call the

"separable order" doctrine.

As an analysis of those cases reveals, the petitioners’

"separable order" doctrine is in reality a number of doctrines,

each of which apply to a unique and narrow set of facts -- facts

which are not presented here.

Since there is no direct, real or intolerable conflict

among Circuits on the issues presented, there is no foundation

for review.

A. This Case Does Not Fit Within The Waco Exception

Since There Was No Preclusive Denial Of

Immunity.

The Airbus Defendants base their "separable order"

premise on this Court's opinion in City of Waco v. United

States Fidelity & Guaranty Co., 293 U.S. 140 (1934). In

Waco, this Court permitted review of an order of dismissal of

a cross-claim since that order "in logic and in fact" preceded

the remand order and was "conclusive" on the substantive

rights of the petitioner to reassert the cross-claim. /d. at 143.

In the present case, there was no dismissed claim nor

any order which "in logic and in fact" was "separable" from

the district court's jurisdictional determinations regarding

remand. See Nutter v. Monongahela Power Co., 4 F.3d 319,

321 (4th Cir. 1993) (good discussion of the applicability of the

Waco doctrine). And, as the Fifth Circuit stated, the FSIA

conclusions about which the petitioners complain "were

jurisdictional under the facts of this case; they thereby have no

preclusive effect on the state courts." See Petition, at A-13.

In contrast to the petitioners’ representations, the district

court did not deny their claim of FSIA immunity. The district

court never ruled on their motions to dismiss because the court

found that the petitioners, in the first instance, had not met

their burden to prove their right to removal. Since the district

court found that it had no subject matter jurisdiction, the

district court had no authority to rule on the petitioners’

substantive defenses. Baldridge v. Kentucky-Ohio

Transportation, Inc., 483 F.2d 1341, 1346 (6th Cir. 1993);

Whitman v. Raley's Inc., 886 F.2d 1177, 1181 (9th Cir. 1989).

The Fifth Circuit's holding that jurisdictional findings

issued incident to a remand order have no preclusive effect on

a party's substantive rights is the rule followed by almost all of

the Circuits that have considered the issue. See Nutter v.

Monongahela Power Co., 4 F.3d 319, 322 (4th Cir. 1993)

(collecting cases). Since federal law determines the preclusive

effect of federal orders -- regardless of whether the court

applying the judgment is state or federal -- the Fifth Circuit's

holding that the district court's FSIA order is jurisdictional and

non-preclusive will permit the petitioners to raise FSIA

immunity again in state court. See id. at 321-22.

Since the FSIA order did not deny immunity and is not

"conclusive" of that issue, the Waco doctrine does not apply’.

B. This Case Does Not Fit Within The 7MI/

Exception Since There Was No Finding Of

Unconstitutionality.

Another case relied upon by the petitioners for conflict

is In re TMI Litigation Cases, 940 F.2d 832 (3d Cir. 1991),

cert. denied 112 S.Ct. 1262 (1992). In that case, the Third

Circuit held that, although normal remand orders are

unreviewable under section 1447(d), an appellate court can

review a remand order in which the district court finds the

> In Waco, the court recognized that the dismissal order could be

reviewed but not the remand order, which was unreviewable by statute. 293

U.S. at 143. The Third Circuit, in a case also relied upon by the petitioners

for conflict, extended Waco to a review of the remand order as well. See

Carr v. American Red Cross, 17 F.3d 671, 679 (3d Cir. 1994). However,

even under Carr, the order to be reviewed must be "final" and “conclusive”

and must satisfy the finality requirements of the collateral order doctrine.

Id. at 675. Under Carr, an order is not "final" if, as here, it can be

reviewed by the state court. /d. at 677.

10

removal statute unconstitutional. Jd. at 845. The Third Circuit

recognized that the question presented there was "unique" and

the court emphasized that its conclusion "is a narrow one and

should in no way frustrate the policy underlying section

1447(d)." Id. at 847. Other Circuits have held that this

exception to unreviewability does not apply unless the district

court makes constitutional rulings. See e.g. Nutter, 4 F.3d at

323.

In the present case, the district court made no rulings on

the constitutionality of the removal statute, so the 7MI

exception is not in conflict and does not apply.

c This Case Does Not Fit Within The

Pelleport/Clorox Exception Since The Remand

Order Was Based On Lack Of Jurisdiction.

Finally, the petitioners attempt to set up a conflict with

the Ninth Circuit and the Sixth Circuit by reliance upon the so-

called "Pelleport/Clorox" exception. Pelleport involved a

remand based not on lack of jurisdiction but on the parties'

prior agreement in a forum selection clause. Pelleport

Investors v. Budco Quality Theatres, Inc., 741 F.2d 273, 277

(9th Cir. 1984). Similarly, Clorox involved a remand based

not on lack of jurisdiction but on the contractual waiver not to

remove found in an employee handbook. Clorox Co. v. United

States District Court, 779 F.2d 517, 520 (9th Cir. 1985). In

both of these cases, the Ninth Circuit held that since the

remand order was not based upon lack of jurisdiction but on a

forum selection issue separate and apart from any jurisdictional

decision, the remand orders could be reviewed. Pelleport, 741

F.2d at 277; Clorox, 779 F.2d at 520.

11

The Sixth Circuit case, which petitioners also allege is

in conflict with this case, was also a forum selection clause

case which expressly applied the Pelleport/Clorox exception.

Regis Associates v. Rank Hotels (Management) Ltd. , 894 F.2d

193, 195 (6th Cir. 1990). In fact, this forum selection clause

exception is uniformly followed by the majority of the Circuits

-- including the Fifth Circuit. See e.g. McDermott Int'l, Inc.

v. Lloyds Underwriters, 944 F.2d 1199, 1203 n. 5 (Sth Cir.

1991); Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1211 (3d

Cir.), cert. denied, 112 S.Ct. 302 (1991); Karl Koch Erecting

Co. v. New York Convention Ctr. Dev. Corp., 838 F.2d 656,

658-59 (2d Cir. 1988).

But, the present case has nothing to do with a forum

selection clause. The remand here was expressly based on lack

of subject matter jurisdiction. Since the remand here was based

on lack of jurisdiction as stated in the remand order, section

1447(d) precludes appellate review. Pelleport, 741 F.2d at 276

("a district court's decision that it lacks subject matter

jurisdiction to hear a case is not reviewable"); Clorox, 779

F.2d at 520 (Section 1447(d) bars review of "those remand

orders which are based on lack of jurisdiction"). Other

Circuits have also held that the Pelleport/Clorox exception is

a "narrow one" and "expressly does not permit review of a

remand order based on lack of jurisdiction." See e.g. Glasser

v. Amalgamated Workers Union Local 88, 806 F.2d 1539,

1540 (11th Cir. 1986); Baldridge v. Kentucky-Ohio

Transportation, Inc., 983 F.2d 1341, 1349 (6th Cir. 1993)

(dismissing similar attempts to extend the exception as “too

facile").

Since the Pelleport/Clorox exception also does not

conflict with the decision below and also does not apply on

these facts, the petition should be denied.

12

Ill. The Fifth Circuit Opinion Will Not Produce

Anomalous Results Since It Was Based On Its Own

Facts.

Even though the petitioners will still have an

Opportunity to raise their "foreign state" theory in the state

court on remand, the petitioners claim that review is required

to eliminate "bizarre" or "disastrous" results. The petitioners

provide two examples.

In the first example, the petitioners contend that one

Circuit held that ICI was a foreign state under the FSIA while

another did not. Compare In re Texas E. Transmission Corp.

PCB Contamination Ins. Coverage Litig., 15 F.3d 1230, 1238

n. 8 (3rd Cir.), cert. denied, 63 U.S.L.W. 3009 (U.S. Oct. 3,

1994), with Mobil Corp. v. Abeille General Ins. Co. , 984 F.2d

664, 666 (Sth Cir. 1993). The petitioners fail to point out that

in the first case, ICI had been taken over by the Irish

government while in the latter case, ICI's acts occurred while

it was still a private entity. See PCB Litigation, 15 F.3d at

1245; Mobil Corp. , 984 F.2d at 665.

In the second example, the petitioners cite a district

court case which is now under appeal. Kern v. Jeppesen

Sanderson, Inc., No. 14-93-3065 (S.D. Tex., June 13, 1994,

appeal pending). The petitioners contend that the Kern case

conflicts with the present case since in Kern, the district judge

found that Airbus was a foreign state. What the petitioners fail

to point out is that, after they lost that issue in this case and in

an effort to distinguish this decision, the petitioners presented

the second federal judge with a different time frame and a

different calculation of ownership interests. See “Airbus

Defendants’ Consolidated Memorandum In Support of

Consolidated Motion to Dismiss" at 11-12 and 13 n.1? ‘arguing

13

that the “operative date" for foreign state status in Kern was

1977, instead of 1989, and that "[t]his Court is not presented

here with the ownership problem that troubled the court in

[Linton]"), filed November 30, 1993 in Kern v. Jeppesen

Sanderson, Inc., H-93-3065 (S.D. Tex). Each case was based

upon its own facts.

Further, the petitioners have failed to point out that the

FSIA Order, which they so loudly decry, never made a final

factual resolution of the asserted ownership interests. See

Linton, 794 F.Supp. at 652 n.3. The court used the

defendants' disputed calculations for the purposes of its order

but held that the court's use of those calculations "does not

imply final acceptance." /d.

Thus, what petitioners ask this Court to review is a

non-final, non-preclusive jurisdictional finding incident to an

order of remand for lack of subject matter jurisdiction which is

unreviewable on appeal pursuant to 28 U.S.C. § 1447(d).

Since the district court did not resolve the factual dispute

concerning ownership interests nor make any factual findings,

this Court could not review the matter even if an exception to

section, 1447(d) applied. See Puerto Rico Aqueduct and Sewer

Authority v. Metcalf & Eddy, Inc., 113 S.Ct. 684, 687 (1993)

(appellate review is precluded of determinations which are

"tentative, informal or incomplete").

The petitioners have not shown any real or intolerable

conflict between the decision below and any opinion of other

Circuits or this Court. The petitioners have not shown any

important reason to do away with over 100 years of

jurisprudence and carve out a broad exception to the well-

established rule of unreviewability of remand orders in section

1447(d).

14

To permit appellate review here would all but eviscerate

the rule, since under the petitioners’ logic, all non-final, non-

preclusive jurisdictional findings incident to remand orders

would be subject to appellate review. Such review would

surely increase the delays and protract the litigation over

jurisdictional issues which it was the avowed purpose of section

1447(d) to resolve. See Thermtron Products, Inc., 423 U.S. at

351.

The petitioners contend that Congress mandated a

federal forum for suits against them. This contention is

incorrect. The FSIA "clearly contemplates that such suits may

be brought in either federal or state courts." Verlinden B.V. v.

Central Bank of Nigeria, 461 U.S 480, 489 (1983). As the

Fifth Circuit held, the petitioners are free to raise the

undetermined issue of FSIA immunity in state court on remand.

The petitioners should do so, rather than attempt further

resolution of the facts and legal issues before this Court.

CONCLUSION

The petition for certiorari should be denied.

15

Respectfully submitted,

David W. Holman

Counsel of Record

Holman Hogan, L.L.P.

Lyric Office Centre

440 Louisiana Street, Suite 1410

Houston, Texas 77002

Telephone (713)222-8800

Facsimile (713)222-8810

Michael J. Maloney

Fisher, Gallagher & Lewis, L.L.P.

First Interstate Bank Plaza

1000 Louisiana, 70th Floor

Houston, Texas 77002

Telephone (713)654-4433

Facsimile (713)654-5070

Francis I. Spagnoletti

Spagnoletti & Associates

1600 Smith, Suite 4545

Houston, Texas 77002

Telephone (713)653-5600

Facsimile (713)653-5656

Attorneys for Respondents