No. 18IN THE

Supreme Court of The United
States

In re Grand Jury Subpoena

On Petition for a Writ of Certiorari to the United States
Court of Appeals for the District of Columbia Circuit

REDACTED PETITION FOR A WRIT OF
CERTIORARI

Attorneys for Petitioner

 QUESTIONS PRESENTED
Under the Foreign Sovereign Immunities Act of
1976 (FSIA), "a foreign state shall be immune from the
jurisdiction of the courts of the United States and of
the States except as provided in sections 1605 to 1607
of this chapter." 28 U.S.C. § 1604. In a separate FSIA
provision entitled "Actions against foreign states,"
Congress limited federal subject-matter jurisdiction in
actions against foreign states to the civil context: "The
district courts shall have original jurisdiction without
regard to amount in controversy of any nonjury civil
action against a foreign state
as to any claim for
relief in personam with respect to which the foreign
state is not entitled to immunity either under sections
1605-1607 of this title or under any applicable
international agreement." 28 U.S.C. § 1330(a).
.

.

.

Through the FSIA, Congress also codified that "the
property in the United States of a foreign state shall
be immune from attachment arrest and execution
except as provided in sections 1,610 and 1611 of this
chapter." 28 U.S.C. § 1609.
Through 18 U.S.C. § 3231—a non-FSIA statute of
general criminal jurisdiction enacted in 1948—
Congress vested federal district courts with "original
jurisdiction, exclusive of the courts of the States, of
all offenses against the laws of the United States."
The questions presented are
1. Does the FSIA grant foreign states sovereign
immunity from American criminal jurisdiction?

 11

Is 28 U.S.C. § 1330(a) the exclusive basis for
subject-matter jurisdiction in a federal action against
a foreign state, or can 18 U.S.C. § 3231 or another
non-FSIA statute provide subject-matter jurisdiction
in a federal action against a foreign state?
Do the FSIA's exceptions to jurisdictional
immunity (28 U.S.C. §§ 1605-1607) apply only in
cases for which 28 U.S.C. § 1330(a) supplies subjectmatter jurisdiction?
Does the FSIA permit an American court to
impose and enforce contempt sanctions (monetary or
otherwise) against a foreign state?

 iv

CORPORATE DISCLOSURE STATEMENT

V

TABLE OF CONTENTS
QUESTIONS PRESENTED........................................i
PARTIES TO THE PROCEEDINGS........................iii
CORPORATE DISCLOSURE STATEMENT..........iv
TABLE OF CONTENTS ............................................v
TABLE OF AUTHORITIES.......................................x
OPINIONS BELOW...................................................1
JURISDICTION.........................................................2
STATUTORY PROVISIONS INVOLVED.................2
INTRODUCTION.......................................................2
STATEMENT..............................................................4
REASONS FOR GRANTING THE PETITION.......15
I.

THE DECISION BELOW
ENTRENCHES A CIRCUIT SPLIT
ABOUT WHETHER THE FSIA
GRANTS FOREIGN STATES
IMMUNITY FROM AMERICAN
CRIMINAL JURISDICTION . ....................... 17
a.

In
creating
subject-matter
jurisdiction over a foreign state
under 18 U.S.C. § 3231, the D.C.
Circuit flouted the FSIA's plain text
and this Court's holdings that the

 Vi
FSIA is the sole basis for exercising
jurisdiction in an action against a
foreign state.........................................21
b.

The D.C. Circuit substituted its
policy preference for Congress's
jurisdictional choices...........................25

II. THE DECISION BELOW ALSO
CEMENTS A CIRCUIT SPLIT ON
WHETHER THE FSIA FORECLOSES
SANCTIONS AGAINST A FOREIGN
STATE............................................................28
The FSIA codified the longstanding
rule in domestic and international
law that foreign sovereigns enjoy
absolute immunity from contempt
sanctions..............................................29
The U.S. Government has argued
consistently in other litigation that
American courts have no authority
to impose contempt sanctions on
foreign states.......................................33
III. THE QUESTIONS PRESENTED ARE
AMONG THE MOST IMPORTANT
UNDER THE FSIA........................................35
CONCLUSION .........................................................38

 vii
UNSEALED APPENDIX
Appendix A Court of appeals judgment
(Dec. 18, 2018) ..................................................... la
-

Appendix B Court of appeals mandate
(Dec. 18, 2018) ......................................................7a
-

Appendix C Supreme Court order granting
temporary stay (Dec. 23, 2018)............................8a
-

Appendix D
18U.S.C.3231 ...................................................9a
22U.S.C.254d ...................................................9a
22U.S.C.7421 ...................................................9a
28 U.S.C. § 1330.................................................13a
28 U.S.C. § 1332.................................................13a
28 U.S.C. § 1391 .................................................22a
28 U.S.C. § 1441 .................................................26a
28 U.S.C. § 1602.................................................30a
28 U.S.C. § 1603 .................................................31a
28 U.S.C. § 1604.................................................32a
28 U.S.C. § 1605.................................................32a
28 U.S.C. § 1605A ..............................................41a
28 U.S.C. § 1605B ...............................................47a
28 U.S.C. § 1606.................................................48a
28 U.S.C. § 1607.................................................49a
28 U.S.C. § 1608.................................................49a
28 U.S.C. § 1609.................................................52a
28 U.S.C. § 1610.................................................53a
28 U.S.C. § 1611 .................................................59a

 

SEALED APPENDIX

 

x
TABLE OF AUTHORITIES
Page(s)

CASES
62 Cases of Jam v. United States,
340 U.S. 593 (1951) ..............................................25

Af-Cap, Inc. v. Republic of Congo,
462 F.3d 417 (5th Cir. 2006) ....................28, 30, 31
Alfred Dunhill of London, Inc. v.
Republic of Cuba,
425 U.S. 682 (1976) ................................................4
Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428 (1989) ...........passim
Autotech Techs. LP v. Integral Research
&Dev. Corp.,
499 F.3d 737 (7th Cir. 2007) ....................28, 30, 32
Bank Markazi v. Peterson,
136 S. Ct. 1310 (2016) ..........................................16
Bender v. Williamsport Area Sch. Dist.,
475 U.S. 534 (1986) ...............................................2
Bolivarian Republic of Venezuela v.
Helmerich & Payne Intl Drilling Co.,
137 S. Ct. 1312 (2017) ................................7, 16, 18
Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800 (1988) ..............................................25

 xi
Cmty. Fin. Grp., Inc. v. Republic of Kenya,
663 F.3d 977 (8th Cir. 2011) ................................19
Conn,. Bank of Commerce v. Republic of Congo,
309 F.3d 240 (5th Cir. 2002) ................................32
Dale v. Colagiovanni,
337 F. Supp. 2d 825 (S.D. Miss. 2004).................19
FG Hemisphere Assocs., LLC v.
Democratic Republic of Congo,
637 F.3d 373 (D.C. Cir. 2011) ........................15, 28
Goar v. Compania Peruana de Vapores,
688 F.2d 417 (5th Cir. 1982) ................................19
Gould, Inc. v. Mitsui Mining & Smelting
Co., 750 F. Supp. 838
(N.D. Ohio 1990)...................................................19
Heiser v. Islamic Republic of Iran,
735 F.3d 934 (D.C. Cir. 2013) ..............................26
In re Papandreou,
139 F.3d 247 (D.C. Cir. 1998) ..............................29
Janvey v. Libyan Inv. Auth.,
840 F.3d 248 (5th. Cir. 2016) ................................18
Keller v. Cent. Bank of Nigeria,
277 F.3d 811 (6th Cir. 2002) ....................19, 20, 37
McKeel v. Islamic Republic of Iran,
722 F.2d 582 (9th Cir. 1983) ................................19

 xii
Mobil Cerro Negro, Ltd. v. Bolivarian
Republic of Venezuela,
863 F.3d 96 (2d Cir. 2017)....................................18
Nat'l City Bank of New York v.
Republic of China,
348 U.S. 356 (1955) ..............................................35
OBB Personenverkehr AG v. Sachs,
136 S. Ct. 390 (2015) ............................................16
People v. Weiner,
378 N.Y.S.2d 966 (N.Y. Crim. Ct. 1976)................5
Persinger v. Islamic Republic of Iran,
729 F.2d 835 (D.C. Cir. 1984) ..............................36
Republic of Argentina v. NML Capital, Ltd.,
573 U.S. 134 (2014) ..........................................8, 16
Republic of Austria v. Altmann,
541 U.S. 677 (2004) ................................................9
Republic of Iraq v. Beaty,
556 U.S. 848 (2009) ..............................................25
Rex v. Cia. Pervana de Vapores, S.A.,
660 F.2d 61 (3d Cir. 1981)....................................18
Rubin v. Islamic Republic of Iran,
138 S. Ct. 816 (2018) ....................................passim
Ruggiero v. Compania Peruana de
Vapores "Inca Capac Yupanqui",
639 F.2d 872 (2d Cir. 1981)..................................18

 xlii

Samantar v. Yousuf,
560 U.S. 305 (2010) ...................................... passim
Schermerhorn v. State of Israel,
876 F.3d 351 (D.C. Cir. 2017) ..............................13
The Schooner Exchange v. McFaddon,
11 U.S. 116 (1812) ........................................3,4,36
Shapiro v. Republic of Bolivia,
930 F.2d 1013 (2d Cir. 1991)................................18
Southway v. Cent. Bank of Nigeria,
198 F.3d 1210 (10th Cir. 1999) ............................20
United States v. Corrick,
298 U.S. 435 (1936) ...............................................2
United States v. Deutsches Kalisyndikat
Gesellschaft,
31 F.2d 199 (S.D.N.Y. 1929) ..................................5
United States v. Noriega,
117 F.3d 1206 (11th Cir. 1997) .............................20
United States v. Sells Eng'g, Inc.,
463 U.S. 418 (1983) ...............................................21
Verlinden B. V. v. Cent. Bank of Nigeria,
461 U.S. 480 (1983) ...................................... passim
Williams v. Shipping Corp. of India,
653 F.2d 875 (4th Cir. 1981) ................................18
Wolf v. Fed. Republic of Germany,
95 F.3d 536 (7th Cir. 1996)..................................19

 xlv
STATUTES AND RULES

18 U.S.C. § 3231 ................................................passim
18 U.S.C. § 3321 ........................................................21
18U.S.C.3322 ........................................................21
22U.S.C.254d ........................................................27
22 U.S.C. § 7421(11) ..................................................37
28 U.S.C. § 1330(a) ............................................passim
28 U.S.C. § 1333 ........................................................22
28 U.S.C. § 1350 ........................................................22
28 U.S.C. § 1603 ........................................8, 10, 11, 25
28 U.S.C. § 1604 ................................................passim
28 U.S.C. §§ 1605-07.........................................passim
28 U.S.C. § 1605(a) ....................................................14
28 U.S.C. § 1605A(a)(5) .......................................24, 25
28 U.S.C. § 1609 ..................................................29, 31
28 U.S.C. § 1610 ................................................passim
28 U.S.C. § 1611 ..................................................29, 32
Fed. R. Crim.P.6 ......................................................21
Fed. R. Crim. P. 17 ..............................................11, 12

 xv
S.Ct.R.10

.20

FOREIGN STATUTES

Federal Law on Jurisdictional immunity
of a Foreign State and a Foreign
State's Property in the Russian
Federation (Oct. 28, 2015) ..................................36
Foreign States Immunities Act. 87 of
1981 (South Africa) ................................................9
Law of the People's Republic of China on
Judicial Immunity from Compulsory
Measures Concerning the Property of
Foreign Central Banks (Oct. 25,
2005) ....................................................................36
State Immunity Act 1978, c. 33, § 16
(United Kingdom).................................................10
State Immunity Act, ch. 313 (1979)
(Singapore) ...........................................................10
State Immunity Act, R.S.C. 1985
(Canada) .................................................................9
State Immunity Ordinance (Ordinance
No. 6/1981) (Pakistan) .........................................10
OTHER AUTHORITIES

Chun Han Wong et al., 'No Coincidence':
China's Detention of Canadian Seen
as Retaliation for Huawei Arrest,
Wall Street Journal (Dec. 12, 2018) ....................36

 xvi
Claim, Black's Law Dictionary (10th ed.
2014) .....................................................................30
Congressional Research Service, North
Korea: Legislative Basis for U.S.
Economic Sanctions (2018)..................................26
Department of State Public Notice No.
507, 41 Fed. Reg. 50883, 50884 (Nov.
10, 1976) .................................................................6
European Convention on State Immunity,
(E.T.S. No. 074), art. 18 (1972),
http://conventions.coe.int/Treaty/en/Tr
eaties/Html/074.htm ............................................32
G.A. Res. 59/38, U.N. Doc. AJRES/59/38
(Dec. 2, 2004)........................................................10
Gaddafi case, No. 1414 (Cass. crim. 2001)
(France)...................................................................6
Hearing on H.R. 1149, H.R. 1689, and H.R. 1888,
Before the Subcommittee on Administrative
Law and Governmental Relations of the House
Judiciary Committee, 100th Cong., 1st Sess.
(1987) ....................................................................31
H.R. Rep. No. 94-1487 (1976), reprinted
in 1976 U.S.C.C.A.N. 6604 ..........................passim
H.S.A. v. S.A. Cass 2e,
No. P.02 1139.F (Feb. 12, 2005)
(Belgium) ................................................................6

 xvii
Hazel Fox & Philippa Webb, The Law of
State Immunity (3d ed. 2013) ....................5, 10, 27
Hazel Fox, International Law and the
Restraints on the Exercise of
Jurisdiction by National Courts of
States in M. Evans, ed.,
International Law 364 (2003)..............................32
Jones v. Ministry of Interior Al-Mamlaka AlArab iya AS Saudiya (the Kingdom of
Saudi Arabia) and others, Case No. (2006)
UKHL 26 (United Kingdom)................................10
Letter from Jack B. Tate, Acting Legal
Adviser, U.S. Dept. of State, to Acting
U.S. Attorney General Phillip B. Penman
(May 19, 1952) ........................................................4
Matthew Lee, Bolton: International
Criminal Court 'Already Dead to Us,'
AP NEWS (Sept. 11, 2018),
https://apnews.com/483 1767ed5db484
ead574a402a 5e7a85............................................37
Rome Statute of the International Criminal
Court, July 17, 1998, 2187 U.N.T.S. 90...............37
U.S. Amicus Br., Af-Cap, Inc. v.
Republic of Congo,
No. 05-51168 (5th Cir. Mar. 13, 2006)...........34, 35
U.S. Amicus Br., Belize Telecom Ltd. v.
Government of Belize,
No. 05-12641 (11th Cir. Aug. 17, 2005)...............34

 xviii
U.S. Amicus Br., FG Hemisphere Assocs.,
LLC v. Democratic Republic of Congo,
No. 10-7046, 2010 WL 4569107
(D.C. Cir. Oct. 7, 2010)..........................................30
U.S. Amicus Br., SerVaas Inc. v. Mills,
No. 14-385, 2014 WL 4656925,
(2d. Cir. Sept. 9, 2014) ................................... 34, 35
United Nations Convention on
Jurisdictional Immunities of States and
Their Properties ...................................................32
Vienna Convention on Diplomatic Relations,
Apr. 18, 1961, entered into force in the
United States Dec. 13, 1972,
23U.S.T. 3227......................................................27

 IN THE

Supreme Court of The United
States

In re Grand Jury Subpoena

On, Petition

for a Writ of Certiorari to the United States
Court of Appeals for the District of Columbia Circuit

REDACTED PETITION FOR A WRIT OF
CERTIORARI
Country A petitions for a writ of certiorari to
review the judgment of the U.S. Court of Appeals for
the District of Columbia Circuit.'
OPINIONS BELOW
The court of appeals' judgment is reproduced at U.
App. 1a.2 The district court's contempt order is
Because of the sealing order in place, we will refer to
Petitioner—a wholly owned agency or instrumentality of a
foreign state—as "Country A."
1

We will refer to the Unsealed Petition Appendix as "U. App."
and to the Sealed Petition, Appendix as "S. App."
2

 2
reproduced at S. App. 52a, its memorandum opinion
at S. App. 16a.
JURISDICTION
The court of appeals issued its judgment and
mandate on December 18, 2018. U. App. la, 7a. This
Court has jurisdiction under 28 U.S.C. § 1254(1), but
because Country A is immune from American criminal
proceedings and because American courts have no
subject-matter jurisdiction over criminal proceedings
against Country A, the Court's jurisdiction is limited
to "correcting the error of the lower court[s] in
entertaining the suit." United States v. Corrick, 298
U.S. 435, 440 (1936); see also Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 541 (1986) (same)
(citation omitted).
STATUTORY PROVISIONS INVOLVED
The FSIA (28 U.S.C. §§ 1330, 1332, 1391(f),
1441(d), 1602-1611) is reproduced at U. App. 13a-60a.
The courts below purported to exercise subject-matter
jurisdiction under 18 U.S.C. § 3231, which is
reproduced at U. App. 9a.
INTRODUCTION
With its decision below, the D.C. Circuit became
the first appellate court in American history to
exercise criminal jurisdiction over a foreign state.
Although two other circuits have previously suggested
that the FSIA does not preclude an American court
from exercising criminal jurisdiction over a foreign
state, the ruling below represents the first time that
an appellate court has taken that leap. In ruling as it

 3
did, the D.C. Circuit broke from the FSIA's text, this
Court's precedents, other circuits' holdings, and the
longstanding rule in America and abroad that one
sovereign may not exercise criminal jurisdiction over
another. If left to stand, the ruling would wreak havoc
on American foreign policy—possibly alienating U.S.
allies, undermining diplomatic efforts, and inviting
reciprocal treatment abroad for American agencies
and instrumentalities. This Court should reverse the
judgment below before those consequences
materialize.
In past cases, this Court has shown sensitivity to
those concerns. It has explained that "[a]ctions against
foreign sovereigns in [American] courts raise sensitive
issues concerning the foreign relations of the United
Verlinden B. V. v. Cent. Bank of Nigeria,
States.
461 U.S. 480, 493 (1983); see also, e.g, The Schooner
Exchange v. McFaddon, 11 U.S. 116, 135 (1812)
(questions of foreign sovereign immunity are "very
delicate and important inquir[ies]") Those statements
arose in the context of civil litigation, underscoring
that even a civil suit against a foreign state—though
perhaps authorized under the FSIA—can roil foreign
relations. But the foreign-policy concerns that attend
civil litigation against a foreign state pale in
comparison to the foreign-policy nightmare that would
ensue if American courts started enmeshing foreign
states in domestic criminal proceedings.
.. ."

The United States understands well the stakes: On
the world stage, it has worked to preserve absolute
immunity from criminal proceedings. And yet by
subjecting Country A to American criminal

 10
jurisdiction, the courts below have denied Country A
the sovereign immunity that the United States enjoys
abroad.
STATEMENT
1. In Schooner Exchange, this Court recognized
that the "person of the sovereign" is exempt "from
arrest or detention within a foreign territory." 11 U.S.
at 137. "The Court's specific holding in Schooner
Exchange was that a federal court lacked jurisdiction
over a 'national armed vessel
of the emperor of
France,' but the opinion was interpreted as extending
virtually absolute immunity to foreign sovereigns
Samantar v. Yousuf, 560 U.S. 305, 311 (2010).
For the next century and a half, "foreign states enjoyed
absolute immunity from all actions in the United
States." Rubin v. Islamic Republic of Iran, 138 S. Ct.
816, 821 (2018).
. . .

."

By the mid-twentieth century, international trade
had reached new heights, with foreign countries and
their instrumentalities often leading the push toward
a globalized economy. See, e.g., Letter from Jack B.
Tate, Acting Legal Adviser, U.S. Dept. of State, to
Acting U.S. Attorney General Philip B. Perlman (May
19, 1952) (Tate Letter), reprinted in 26 Dept. of State
Bull. 984 (1952), and in Alfred Dunhill of London, Inc.
v. Republic of Cuba, 425 U.S. 682, 714 (1976)
(Appendix 2 to Court's opinion). Those changes in the
world economy prompted calls for changes to
sovereign-immunity principles in civil matters—
balancing a country's inherent sovereignty against the
rights of private actors doing business with the
sovereign. In 1952, the Tate Letter reflected the

 5
evolving global consensus: Foreign sovereigns'
participation in commercial markets "ma[de]
necessary a practice which. enable[d] persons doing
business with them to have their rights determined in
the courts." Rubin, 138 S. Ct. at 821-22 (quoting Tate
Letter at 985).
.

.

So was born America's so-called "restrictive
approach" to sovereign immunity in matters sounding
in "contract and tort." Tate Letter at 985. But the shift
from absolute to restrictive immunity in the civil
context "left untouched the position in criminal
proceedings." Hazel Fox & Philippa Webb, The Law of
State Immunity 91 (3d ed. 2013); see also id. at 94
("The adoption of a restrictive doctrine has not been
treated as having any relevance in relation to the
Absolute Immunity of the foreign State from criminal
proceedings.").
For good reason: Few things would offend
sovereign dignity more than subjecting the sovereign
to another country's criminal process, which is why
the international community (including the United
States) has long immunized foreign states and their
leaders from domestic criminal jurisdiction. See, e'g.,
People v. Weiner, 378 N.Y.S.2d 966, 974 (N.Y. Crim.
Ct. 1976) (foreign sovereigns enjoy "unlimited,"
"absolute" immunity from criminal proceedings);
United States v. Deutsches Kalisyndikat Gesellschaft,
31 F.2d 199, 201 (S.D.N.Y. 1929) ("The person of the
foreign sovereign and those who represent him are
immune, whether their acts are commercial, tortious,
criminal, or not, no matter where performed. Their
person and property are inviolable.") (emphasis

 added); Gaddafi case, No. 1414 (Cass. crim. 2001)
(France) (criminal proceedings against Colonel elGaddafi relating to bombing of French airliner
dismissed on immunity grounds); H.S.A. v. S.A. Cass
2e, No. P.02 1139.F (Belgium) (Feb. 12, 2005),
translated in 42 ILM 596 (2003) (criminal proceedings
against Israeli Prime Minister Ariel Sharon alleging
crimes against humanity dismissed on immunity
grounds).
After the Tate Letter, the State Department bore
primary responsibility for suggesting to American
courts whether a foreign sovereign was entitled to
immunity in a particular case. Verlinden, 461 U.S. at
488. That ad hoc approach proved unworkable: The
State Department's views often reflected little more
than the diplomatic sentiments du jour, and in some
cases, the Department refused to weigh in one way or
the other. Id.
Faced with that increasingly cumbersome regime,
the Executive Branch "sought and supported the
elimination of its role with respect to claims against
foreign states and their agencies or
intrumentalities." Samantar, 560 U.S. at 323 n.19. In
1976, Congress obliged and enacted the FSIA "to free
the Government from case-by-case diplomatic
pressures, to clarify the governing standards, and to
assure litigants that decisions are made on purely
legal grounds and under procedures that insure due
process." Verlinden, 461 U.S. at 488 (internal
alterations omitted); see also Department of State
Public Notice No. 507, 41 Fed. Reg. 50883, 50884 (Nov.
10, 1976) ("[I]t would be inconsistent with the

 7

legislative intent of [the FSIA] for the Executive
Branch to file any suggestion of immunity on or after
January 19, 1977."). Since the FSiA's enactment, this
Court has explained multiple times that "the FSIA
provides the sole basis for obtaining jurisdiction over
a foreign state" Amerada Hess, 488 U.S. at 443) and
"must be applied by the District Courts in every action
against a foreign sovereign." Verlinden, 461 U.S. at
493.
2. The FSIA codifies the longstanding rule from
American and international law that domestic courts
may not exercise criminal jurisdiction over a foreign
state. See Bolivarian Republic of Venezuela v.
Helmerich & Payne Intl Drilling Co., 137 S. Ct. 1312,
1319 (2017) ("The [FSIA] for the most part embodies
basic principles of international law long followed both
in the United States and elsewhere."); H.R. Rep. No.
94-1487, at 14 (same).
Under the FSIA, "a foreign state shall be immune
from the jurisdiction of the courts of the United States
and of the States except as provided in sections 1605
to 1607 of this chapter." 28 U.S.C. § 1604. The FSIA
"starts from a premise of immunity and then creates
exceptions to the general principle." Bolivarian
Republic, 137 S. Ct. at 1320. That jurisdictional
immunity covers criminal proceedings: Congress
granted foreign states immunity from the
"jurisdiction" of American courts—civil and criminal.
But Congress did not stop there. Through 28 U.S.C.
1330(a)
—entitled "Actions against foreign states"—
§
Congress also limited subject-matter jurisdiction in
actions against foreign states to certain nonjury civil

 claims: "The district courts shall have original
jurisdiction without regard to amount in controversy
of any nonjury civil action against a foreign state as
defined in section 1603(a) of this title as to any, claim
for relief inpersonam with respect to which the foreign
state is not entitled to immunity either under sections
1605-1607 of this title or under any applicable
international agreement." 28 U.S.C. § 1330(a)
(emphasis added). In Amerada Hess, this court
explained that "jurisdiction in actions against foreign
states is comprehensively treated by fl section 1330."
Amerada Hess, 488 U.S. at 437 n.5 (quoting H.R. Rep.
No. 94-1487, at 14); see also H.R. Rep. No. 94-1487, at
12-13 ("Section 1330 provides a comprehensive
jurisdictional scheme in cases involving foreign
states."); Verlinden, 461 U.S. at 489 ("If one of the
specified exceptions to sovereign immunity applies, a
federal district court may exercise subject matter
jurisdiction under § 1330(a)
.

.

.

As this Court has explained, "[s]ections 1604 and
1330(a) work in tandem: § 1604 bars federal and state
courts from exercising jurisdiction when a foreign
state is entitled to immunity, and § 1330(a) confers
jurisdiction on district courts to hear suits brought by
United States citizens and by aliens when a foreign
state is not entitled to immunity." Amerada Hess, 488
U.S. at 434 (emphasis added). Even beyond Amerada
Hess, this Court has consistently described the FSIA's
jurisdictional scheme as "comprehensive." See, e.g.,
Republic of Argentina v. NML Capital, Ltd., 573 U.S.
134, 141 (2014) ("We have used th[e] term
[comprehensive] often and advisedly to describe the

 Act's sweep."); Samantar, 560 U.S. at 323 (the FSIA is
a "comprehensive solution' for suits against [foreign]
states"); Republic of Austria V. Altmann, 541 U.S. 677,
691 (2004) (the FSIA is a "comprehensive statute");
Verlinden, 461 U.S. at 488 (the FSIA is "a
comprehensive set of legal standards governing claims
of immunity in every civil action against a foreign
state or its political subdivisions, agencies; or
instrumentalities").3 "After the enactment of the
FSIA," the Court has held, "the Act—and not the preexisting 'common law—indisputably governs the
determination of whether a foreign state is entitled to
sovereign immunity." Samantar, 560 U.S. at 313.
3. Congress's decision to withhold criminal
jurisdiction over foreign states was not an oversight.
Most countries have adopted a restrictive approach to
sovereign immunity in the civil context but withheld
criminal jurisdiction over foreign states. See, e.g.,
Foreign States Immunities Act 87 of 1981 § 2 (South
Africa) ("The provisions of this Act shall not be
construed as subjecting any foreign state to the
criminal jurisdiction of the courts of the Republic.");
State Immunity Act, R.S.C. 1985, c. S-18 (Canada) (no
criminal jurisdiction over foreign states); The State
Immunity Ordinance (Ordinance No. 6/1981)
As the Federal Judicial Center has explained, Verlin,den's
"reference to 'civil actions' does not suggest
that states or their
agencies or instrumentalities can be subject to criminal
proceedings in U.S. courts; nothing in the text or legislative
history supports such a conclusion." Federal Judicial Center, The
Foreign Sovereign Immunities Act: A Guide for Judges,
International Litigation Guide at 1 n.2 (2013).
...

 '[ii
(Pakistan) (same); State Immunity Act, ch. 313 (1979)
(Singapore) (same); State Immunity Act 1978, c. 33,
§ 16, sch. 5 (U.K.) (same); see also Jones v. Ministry of
Interior Al-Mamlaka Al-Arabiya AS Saudiya (the
Kingdom of Saudi Arabia) and others, Case No. (2006)
UKHL 26, para. 31 (United Kingdom) ("A state is not
criminally responsible in international or English law,
and therefore cannot be directly impleaded in criminal
proceedings."). Indeed, the United Nations has
promulgated a model convention that adopts the
restrictive theory of immunity in the civil context but
leaves intact absolute immunity from criminal
proceedings. See G.A. Res. 59/38, U.N. Doc.
AIRES/59/38 (Dec. 2, 2004); Fox & Webb, The Law of
State Immunity at 314 ("The general understanding
that [the U.N. convention] does not apply to criminal
proceedings is in line with the received position of
jurists and courts that fl an independent State EI
enjoys absolute immunity in respect of criminal
proceedings.")."
4. As the D.C. Circuit recognized below, Country
A—a corporation wholly owned by a foreign state—

S. App. 167a-168a. The Government did not cite
any support for that supposed pre-FSIA distinction. Regardless,
whatever was true before the FSIA was enacted, the FSIA defines
"foreign state" to include a corporation majority-owned by a
foreign state. 28 U.S.C. § 1603(a), (b).

 11
"falls within the [FSIA's] definition of a 'foreign state."
U. App. 2a (citing 28 U.S.C. § 1603).
Earlier this year, the U.S. Government served a
grand jury subpoena on country A. S. App. 8a.
Country A understands that it is a witness in the
investigation.
From the beginning, country A explained that it is
entitled under the FSIA to sovereign immunity from
the subpoena and that American courts have no
criminal jurisdiction over foreign states. S. App. 84a.
The Government nevertheless demanded compliance
with the subpoena. Id. at 85a.
Accordingly, Country A moved to quash the
subpoena. S. App. 85a. In its motion, country A
argued (1) that as a foreign state, it is immune under
the FSIA from complying with the grand jury
subpoena and that American courts have no criminal
jurisdiction over foreign states and (2) that the
subpoena is unreasonable and oppressive under
Federal Rule of criminal Procedure 17(c) because it
would require country A to violate its own laws. Id.
The Government conceded that country A qualifies as
a foreign state under the FSIA but argued that the
FSIA does not apply in criminal proceedings and that,
if it does, the FSIA's commercial-activity exception
applies and overrides Country A's sovereign
immunity. Id. The Government filed two ex parte
briefs ostensibly supporting its argument about the
commercial-activity exception. Id.
The district court denied Country A's motion to
quash and ordered it to comply with the subpoena. S.

 12
App. 85a. The court held that it had subject-matter
jurisdiction over the matter, not under 28 U.S.C.
§ 1330(a) (the FSIA's sole jurisdiction-granting
provision), but under 18 U.S.C. § 3231—a statute of
general jurisdiction that gives federal district courts
"original jurisdiction, exclusive of the courts of the

The district court went on to hold—using
information that the Government provided in exparte

The district court also rejected Country A's
argument that the subpoena violates Rule 17(c)(2)
because it would force Country A to violate its own
laws. S. App. 32a-41a.
Country A appealed and moved the D.C. Circuit to
stay the district court's order compelling it to comply
with the subpoena. S. App. 87a. The Government
moved to dismiss the appeal, arguing that Country A
had to wait for a contempt order to appeal. Id. The
D.C. Circuit granted the Government's motion,
dismissed Country A's appeal, and denied Country A's
stay motion as moot. Id. at 50a.

 13
The next day, the Government asked the district
court to hold Country A in contempt for failing to
comply with the district court's order and to impose a
sanction of $10,000 per day until Country A complied
with the subpoena. S. App. 87a.5 Country A opposed
the motion, arguing that the district court lacked
authority to impose a monetary sanction on a foreign
state. Id. The district court again denied Country A
sovereign immunity from the subpoena and held
Country A in contempt. Id. The court sanctioned
Country A $50,000 per day until it complies with the
subpoena, but the court stayed its contempt order
pending appeal. Id. at 87a-88a.
5. Country A appealed again, and on December 18,
2018, the D.C. Circuit panel affirmed in a three-page
per curiam judgment (with an opinion to follow) just
three days after an oral argument that included an ex
parte session with the Government. U. App. la.
The panel "side[d] with the district court" and
concluded that "subject-matter jurisdiction lies under
18 U.S.C. § 3231." U. App. 2a-3a. The panel conceded
that this Court "has said—and the [D.C. Circuit] has
repeated—that section 1330(a) is 'the sole basis for
obtaining jurisdiction over a foreign state in our
courts." Id. at 3a. (citing Amerada Hess and
Schermerhorn v. State of Israel, 876 F.3d 351, 353
Meanwhile, Country A petitioned the D.C. Circuit for rehearing
or rehearing en banc of its order dismissing Country A's original
appeal, arguing that under this Court's and D.C. Circuit
precedent, a foreign state does not have to suffer the indignity of
a contempt order before appealing a denial of sovereign
immunity. S. App. 87a. The D.C. Circuit denied the petition.
5

 14
(D.C. Cir. 2017)). But the panel disregarded Amerada
Hess and earlier circuit precedent because, by the
panel's view, "the cases where the Court has referred
to section 1330(a) as exclusive are all civil actions, and
there is no indication that the Court intended to
extend this reading to the criminal context." Id. at 3a.
According to the panel, "[t]extually speaking, nothing
in the [FSIA] purports to strip district courts of
criminal jurisdiction; to the contrary, the Act's only
provision related to subject-matter jurisdiction, 28
U.S.C. § 1330(a), grants subject-matter jurisdiction
over certain 'nonjury civil action[s]." Id.
The panel also reasoned that interpreting the FSIA
to foreclose criminal jurisdiction over foreign states
"would completely insulate corporations majorityowned by foreign governments from all criminal
liability," which to the panel "seem[ed] in far greater
tension with Congress's choice to codify a theory of
foreign sovereign immunity designed to allow
regulation of foreign nations acting as ordinary
market participants." U. App. 3a (citing Rubin, 138 S.
Ct. at 822). Accordingly, the panel held "that the
[FSIA] leaves intact Congress's grant of subjectmatter jurisdiction over criminal offenses." Id. at 4a.
The panel also held that "if section 1604's
immunity applies, the commercial activity exception is
likewise available in criminal proceedings." U. App.
4a. According to the panel, "the [FSIA] extends that
exception to [any case] meeting its definition—a label
noticeably broader than 'any civil action." Id. (quoting
28 U.S.C. § 1605(a)).

 15
The panel also concluded "that the [FSIA] allows
for the monetary judgment ordered by the district
court." U. App. 5a (citing FG Hemisphere Assocs.,LLC
v. Democratic Republic of Congo, 637 F.3d 373, 376
(D.C. Cir. 2011)). But the panel punted on whether the
district court can enforce its contempt sanction:
"Whether and how that sanction can be executed on
remand is a separate question for a later day." Id.6
In an unusual move no doubt spurred by concerns
about the time constraints on the Government's
investigation, the panel issued its judgment and
mandate the same day. U. App. la, 7a. Country A
moved the D.C. Circuit to recall and stay the mandate
pending this Court's decision on Country A's petition
for a writ of certiorari. S. App; 267a. The panel denied
that motion on December 21, 2018. Id.
On December 22, Country A moved the Chief
Justice to stay the proceedings below pending the
Court's decision on Country A's certiorari petition. On
December 23, the Chief Justice stayed the proceedings
below pending further order from him or the Court. U.
App. 8a.
This petition follows.
REASONS FOR GRANTING THE PETITION
In the last decade, this Court has granted
certiorari in a number of cases raising questions under
6

The panel also rejected Country A's argument that complying
with the subpoena would require it to violate its own laws. U.
App. 5a-6a.

 16
the FSIA in the civil context. See, e.g., Rubin, 138 S.
Ct. at 816; Bolivarian Republic, 137 S. Ct. at 1312;
Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016); OBB
Personenverkehr AG v. Sachs, 136 S. Ct. 390 (2015);
NML Capital, 573 U.S. at 134; Samantar, 560 U.S. at
305. This case presents questions with far greater
implications for American foreign policy and
international diplomacy: It tests whether Congress
(through the FSIA) broke ranks with the international
community to allow criminal proceedings against
foreign states in American courts.
On that question, the circuit courts are divided
(even if in a lopsided fashion). Eight circuits (the
Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth,
and Ninth) have held that § 1330(a) is the exclusive
basis for subject-matter jurisdiction in an action
against a foreign state—with the Sixth Circuit holding
that the FSIA forecloses criminal jurisdiction against
a foreign state. Three courts of appeals (the Tenth,
Eleventh, and now the D.C. Circuit) have held or
suggested that an American court may exercise
criminal jurisdiction over a foreign state—with the
D.C. Circuit holding below that neither the FSIA nor
this Court's precedents foreclose criminal jurisdiction
over a foreign state.
The courts of appeals are also divided on whether
the FSIA authorizes sanctions (monetary or
otherwise) against a foreign state. The D.C. Circuit
has said yes. The Fifth Circuit (backed by the
Executive Branch) has said no.
In the mine-run case, those conflicts would
warrant certiorari review. In a case going to the heart

 17
of foreign sovereign immunity under the FSIA, the
conflicts are intolerable. Congress passed the FSIA in
part to ensure "a uniform body of law" in immunity
matters. Verlinden, 461 U.S. at 489 (quoting H.R. Rep.
No. 94-1487, at 32).7 The existing conflicts undermine
Congress's purpose on that score.

I.

THE DECISION BELOW ENTRENCHES A
CIRCUIT SPLIT ABOUT WHETHER THE
FSIA GRANTS FOREIGN STATES
IMMUNITY
FROM
AMERICAN
CRIMINAL JURISDICTION.

This Court has explained (quoting the FSIA's
legislative history) that "jurisdiction in actions against
foreign states is comprehensively treated by fl section
1330." Amerada Hess, 488 U.S. at 437 n.5 (quoting
H.R. Rep. No. 94-1487, at 14); see also Verlinden, 461
U.S. at 489 ("If one of the specified exceptions to
sovereign immunity applies, a federal district court
may exercise subject matter jurisdiction under
§ 1330(a) . . . ."). Indeed, the only jurisdiction-granting
statute in the U.S. Code that incorporates the FSIA's
immunity exceptions is § 1330(a)—proof that the
exceptions apply only within § 1330(a)'s limits. That
also confirms that the exceptions themselves—
"[a]lmost all [of which] involve commerce or
immovable property located in the United States"
The D.C. Circuit's judgment also undermines uniformity in
another way: If § 1604's grant of immunity to foreign states does
not reach criminal proceedings, then courts in all 50 states can
exercise criminal jurisdiction over foreign sovereigns, ensuring a
patchwork of conflicting approaches.

 (Bolivarian Republic, 137 S. Ct. at 1320)—are civil in
nature.
Consistent with the FSIA's text and this Court's
precedents, the Second, Third, Fourth, Fifth, Sixth,
Seventh, Eighth, and Ninth Circuits have held that
§ 1330(a) "is the exclusive source of subject-matter
jurisdiction in suits involving foreign states." Shapiro
v. Republic of Bolivia, 930 F.2d 1013, 1017 (2d Cir.
1991); see also Ruggiero v. Compania Peruana de
Vapores "Inca Capac Yupanqui", 639 F.2d 872, 878 (2d
Cir. 1981) (Friendly, J.) ("The [House] reports thus
confirm what is patent from the statutory language [:]
Congress wished to provide a single vehicle for actions
against foreign states or entities controlled by them, to
wit, section 1330 and section 1441(d), its equivalent on
removal, and to bar jury trial in each."); Mobil Cerro
Negro, Ltd. v. Bolivarian Republic of Venezuela, 863
F.3d 96, 113-15 (2d Cir. 2017) ("Amerada Hess in its
holding as well as its language confirms our decision
that [a non-FSIA statute] does not constitute an
independent grant of subject matter jurisdiction over
a foreign sovereign."); Rex v. Cia. Pervana de Vapores,
S.A., 660 F.2d 61, 65 (3d Cir. 1981) ("We conclude,
therefore, that Congress intended all actions against
foreign states to be tried without a jury, and to be
brought under 28 U.S.C. § 1330(a)."); Williams v.
Shipping Corp. of India, 653 F.2d 875, 881 (4th Cir.
1981) ("[T]he plain reading of the statutory language,
the legislative history and the overriding purpose of
the [FSIA] requires the conclusion that sections 1330
and 1441(d) are jurisdictionally exclusive
Janvey v. Libyan Inv. Auth., 840 F.3d 248, 257 (5th
Cir. 2016) (subject-matter jurisdiction under the FSIA
.

.

.

 19
"extends to 'any nonjury civil action against a foreign
state . . . as to any claim for relief in personam ....")';
Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 820 (6th
Cir. 2002) (same).8
In Keller, the Sixth Circuit held in no uncertain
terms that the FSIA forecloses criminal jurisdiction
over a foreign state. 277 F.3d at 820 ("The [FSIA]
provides that jurisdiction over a foreign sovereign will
exist only if there is a relevant international
agreement or an exception listed in 28 U.S.C. §§ 16051607. Plaintiff has not cited [a relevant] international
agreement . . . and the FSIA does not provide an
exception for criminal jurisdiction."), abrogated on
other grounds by Samantar v. Yousuf, 560 U.S. 305
(2010); see also Dale v. Colagiovanni, 337 F. Supp. 2d
825, 842-43 (S.D. Miss. 2004) ("[FSIA] §§ 1605-1607
do not state any type of exception to sovereign
immunity for criminal acts"), aff'd in part, rev'd in part
on other grounds by 443 F.3d 425 (5th Cir. 2006);
Gould, Inc. v. Mitsui Mining & Smelting Co., 750 F.
Supp. 838, 844 (N.D. Ohio 1990) (same).

8 See also

Goar v. Compania Peruana de Vapores, 688 F.2d 417,
421 (5th Cir. 1982) ("Every appellate court that has considered
whether § 1330(a) is the sole source of federal jurisdiction in
suits against corporations owned by foreign states has
concluded that it is.") (collecting cases); Wolf v. Fed. Republic of
Germany, 95 F.3d 536, 541 (7th Cir. 1996) (same);' Cmty. Fin.
Grp., Inc. v. Republic of Kenya, 663 F.3d 977, 980 (8th Cir. 2011)
(same); McKeel v. Islamic Republic of Iran, 722 F.2d 582, 585 (9th
Cir. 1983) (same).

 20
Through its judgment below, the D.C. Circuit
rejected the majority view to conclude that a federal
court may exercise criminal jurisdiction over a foreign
state under 18 U.S.C. § 3231—a non-FSIA statute of
general criminal jurisdiction. Although the D.C.
Circuit is to our knowledge the first circuit court to
exercise jurisdiction over a foreign state under § 3231,
two other circuits—the Tenth and the Eleventh—have
concluded that the FSIA does not govern criminal
proceedings against foreign states. See Southway v.
Cent. Bank of Nigeria, 198 F.3d 1210, 1214 (10th Cir.
1999) ("We are unwilling to presume that Congress
intended the FSIA to govern district court jurisdiction
in criminal matters."); United States v. Noriega, 117
F.3d 1206, 1212 (11th Cir. 1997) (asserting that "the
FSIA addresses neither head-of-state immunity, nor
foreign sovereign immunity in the criminal context").
As a result, the circuit courts are split on a question
of national—even international—importance. The
need for clarity and uniformity on that question is a
"compelling reason" justifying certiorari review. S. Ct.
R. 10.
Along the same lines, the D.C. Circuit's alternative
holding—that if the FSIA applies to criminal
proceedings, so do the FSIA's immunity exceptions—
conflicts with the Sixth Circuit's holding in Keller that
the FSIA's immunity exceptions are civil in nature and
do not allow for criminal proceedings against foreign
states. 277 F.3d at 820.

 21
a. In creating subject-matter jurisdiction
over a foreign state under 18 U.S.C.
§ 3231, the D.C. Circuit flouted the FSIA's
plain text and this Court's holdings that
the FSIA is the sole basis for exercising
jurisdiction in an action against a foreign
state.
The courts below should have quashed the grand
jury subpoena to Country A because enforcing a
criminal subpoena is not a nonjury civil action against
a foreign state involving a claim for relief. 28 U.S.C.
§ 1330(a).
A grand jury subpoena issues under Federal Rule
of Criminal Procedure 17 and is a part of the American
criminal process. "The grand jury has always occupied
a high place as an instrument of justice in [America's]
system of criminal law—so much so that it is
enshrined in the Constitution." United States v. Sells
Eng'g, Inc., 463 U.S. 418, 423 (1983); U.S. Const.
amend. V. That is why every legal rule relating to the
grand jury is in the criminal code or the criminal
rulebook, not in their civil counterparts. See, e.g., Fed.
R. Crim. P. 6, 17; 18 U.S.C. §§ 3321-22. And by
definition, grand jury proceedings are not "nonjury"
actions.
Instead of stopping its search for subject-matter
jurisdiction at § 1330(a), the D.C. Circuit looked
outside the FSIA to find subject-matter jurisdiction
under 18 U.S.C. § 3231. It could do so only by ignoring
the FSIA's text and this Court's precedents. According
to the court of appeals, a federal court can exercise
criminal jurisdiction over a foreign state under 18

 22
U.S.C. § 3231 because "nothing in the [FSIA] purports
to strip district courts of criminal jurisdiction" and
§ 1330(a) "includes nothing at all about criminal
jurisdiction." U. App. 3a.
The plaintiffs in Amerada Hess made the same
mistake. They argued that nothing in the FSIA
prevented federal courts from exercising subjectmatter jurisdiction over Argentina under the Alien
Tort Statute (28 U.S.C. § 1350) or the general
admiralty statute (28 U.S.C. § 1333). 488 U.S. at 432.
This Court rejected the notion that those or other nonFSIA statutes could supply jurisdiction in an action
against a foreign state:
In light of the comprehensiveness of the
statutory scheme in the FSIA, we doubt
that even the most meticulous draftsman
would have concluded that Congress also
needed to amend pro tanto the Alien Tort
Statute and presumably such other
grants of subject-matter jurisdiction in
Title 28 as § 1331 (federal question),
§ 1333 (admiralty), § 1335 (interpleader),
§ 1337 (commerce and antitrust), and
(patents,
copyrights,
and
§ 1338
trademarks). Congress provided in the
FSIA that "[c]laims of foreign states to
immunity should henceforth be decided
by courts of the United States in
conformity with the principles set forth
in this chapter," and very likely it
thought that should be sufficient.

 23
Id. at 437-38. The Court went on:
We think that Congress' decision to deal
comprehensively with the subject of
foreign, sovereign immunity in the FSIA,
and the express provision in § 1604 that
"a foreign state shall be immune from the
jurisdiction of the courts of the United
States and of the States except as
provided in sections 1605-1607,"
preclude a construction of the Alien Tort
Statute that permits the instant suit.
The Alien Tort Statute by its terms does
not distinguish among classes of
defendants, and it of course has the same
effect after the passage of the FSIA as
before with respect to defendants other
than 'foreign states.
Id. at 438.
Driving home the point, the Court explained that
Congress amended the diversity statute to delete a
provision expressly creating jurisdiction over actions
against foreign states but did not need to make similar
changes to general jurisdictional statutes: "Unlike the
diversity statute, however, the Alien Tort Statute and
the other statutes conferring jurisdiction in general
terms on district courts cited in the text did not in
1976 (or today) expressly provide for suits against
foreign states." 488 U.S. at 437 n.5.
Amerada Hess lays bare the D.C. Circuit's error:
The court of appeals purported to find jurisdiction in a
statute (§ 3231) that "does not distinguish among

 24
classes of defendants" and that "has the same. effect
after the passage of the FSIA as before with respect to
defendants other than foreign states." Amerada Hess,
488 U.S. at 437. Like the circuit court in Amerada
Hess, the D.C. Circuit erroneously concluded that
Congress intended "federal courts [to] continue to
exercise jurisdiction over foreign states. outside the
confines of the FSIA." Id. at 435. It failed to grasp that
Congress has not left sensitive issues of foreign
sovereign immunity to the vagaries of general
statutes.
.

.

The D.C. Circuit's mode of analysis also betrays a
separate misunderstanding of the FSIA and this
Court's precedents. The court of appeals uncoupled
§ 1604's immunity grant and corresponding immunity
exceptions (28 U.S.C. §§ 1605-07) from § 1330(a)'s
grant of subject-matter jurisdiction. But as this Court
explained in Amerada Hess, those provisions "work in
tandem" (488 U.S. at 434), not in isolation. Section
1604 grants the foreign state immunity when no
exception applies, and § 1330(a) confers jurisdiction on
the federal court when an exception applies. Id. No
jurisdiction-granting statute other than § 1330(a)
incorporates the FSIA's immunity exceptions.
If that were not enough, the FSIA's terrorism
exception (§ 1605A) proves that Congress foreclosed
criminal jurisdiction over foreign states. Section
1605A strips foreign states' immunity from certain
actions involving "personal injury" or "death" caused
by (among other acts) "an act of torture, extrajudicial
killing, aircraft sabotage, [and] hostage taking," but it
does so only inasmuch as "money damages are

 Rol

sought"—language that, consistent with § 1330(a),
limits jurisdiction to civil proceedings. 28 U.S.C.
§ 1605A(a)(5).9
b. The D.C. Circuit substituted its policy
preference for Congress's jurisdictional
choices.
The court of appeals drove to its result in part
because of concerns that the "contrary reading of the
[FSIA]
would completely insulate corporations
majority-owned by foreign governments from all
criminal liability." U. App. 3a. But that is precisely
what Congress intended. Absolute immunity from
criminal jurisdiction was and is the rule in America
and abroad. See Statement, supra, at 4-8; see also 28
U.S.C. § 1603(b) (defining "foreign state" to include
"an agency or instrumentality of a foreign state"). It
was not for the D.C. circuit to second-guess Congress's
policy choice. See 62 Cases of Jam v. United States, 340
U.S. 593, 596 (1951) ("Congress expresses its purpose
by words. It is for us to ascertain—neither to add nor
to subtract, neither to delete nor to distort.");
Christianson v. Colt Indus. Operating Corp., 486 U.S.
800, 818 (1988) ("even in the interest of justice," a
court "may not in any case
extend its jurisdiction
where none exists"). That is especially so given that
Congress's jurisdictional choices reflect the prevailing
...

.

.

.

Even that narrow exception to jurisdictional immunity in the
civil context has proven troublesome in certain circumstances,
prompting Congress to override the exception when broader
diplomatic goals required it. See, e.g., Republic of Iraq v. Beaty,
556 U.S. 848, 856-57 (2009) (post-war statute authorized
President to waive the FSIA's terrorism exception vis-â-vis Iraq).

 26
view in the United States and around the globe.
Congress understood that allowing American courts to
exercise criminal jurisdiction over foreign states
would expose American agencies and
instrumentalities to criminal proceedings abroad.
In any case, the D.C. circuit's parade of horribles
finds no support in U.S. history. Since America's
founding, foreign states have been immune from
American criminal jurisdiction, and yet the United
States is not overrun with criminal syndicates backed
by foreign states. The D.C. Circuit also ignored that
the Executive Branch and Congress have many nonjudicial tools at their disposal to address foreign
sovereigns that commit crimes in the United States.
See, e.g., Heiser v. Islamic Republic of Iran., 735 F.3d
934, 936 n.2 (D.C. Cir. 2013) (President has "broad
powers to impose economic sanctions") (citation
omitted); Congressional Research Service, North
Korea: Legislative Basis for U.S. Economic Sanctions
(2018) (listing possible sanctions).
The court of appeals' lapse into policymaking also
surfaced in its conclusion that "there is no indication"
that this Court intended its statements in civil cases
about the FSIA's "comprehensive" regime "to extend
to the criminal context." U. App. 3a. That is wrong:
There is every indication that Congress and this Court
meant comprehensively when using the term
"comprehensively." See Amerada Hess, 488 U.S. at 437
n.5 (quoting H.R. Rep. No. 94-1487, at 14); see also
H.R. Rep. No. 94-1487, at 12-13 ("Section 1330
provides a comprehensive jurisdictional scheme in
cases involving foreign states."). The court of appeals

 27
disregarded Congress's and this Court's clear
statements because of the court of appeals' policy
preferences, not because the statements are unclear.
Taking a step back, the circuit court's conclusion is
also counterintuitive. By its logic, federal courts have
civil jurisdiction over foreign states only if Congress
explicitly says so (in the FSIA), but they have criminal
jurisdiction over foreign states unless Congress
explicitly says that they do not. That, of course, is
wrong: The lower federal courts do not have subjectmatter jurisdiction unless Congress gives it to them.
Amerada Hess, 488 U.S. at 433. In any case, why
would Congress, in the face of longstanding
international law recognizing absolute immunity in
the criminal context, calibrate civil jurisdiction over
foreign states so carefully but leave criminal
jurisdiction over foreign states wide open? Criminal
jurisdiction stokes diplomatic concerns in ways that
civil jurisdiction does not. See Fox & Webb, The Law
of State Immunity at 91-92. And why would Congress
leave foreign states exposed to American criminal
jurisdiction while the United States extends absolute
immunity from American criminal jurisdiction to
designated foreign diplomats? See, e.g., 22 U.S.C.
§ 254d; Vienna Convention on Diplomatic Relations,
Apr. 18, 1961, entered into force in the United States
Dec. 13, 1972, 23 U.S.T. 3227, at art. 31 ("A diplomatic
agent shall enjoy immunity from the criminal
jurisdiction of the receiving State.").
"In light of the comprehensiveness of the statutory
scheme in the FSIA," this Court doubted in Amerada
Hess "that even the most meticulous draftsman would

 have concluded that Congress also needed to amend
pro tanto" general grants of subject-matter
jurisdiction to confirm that they do not apply to foreign
states. 488 U.S. at 438. With its decision below, the
D.C. Circuit broke from other circuits and turned
Amerada Hess on its head: According to the court of
appeals, the most meticulous draftsman would have
amended pro tanto statutes of general criminal
jurisdiction to confirm that they do not apply to foreign
states.10
II.

THE DECISION BELOW ALSO CEMENTS
A CIRCUIT SPLIT ON WHETHER THE
FSIA FORECLOSES SANCTIONS
AGAINST A FOREIGN STATE.

The court of appeals also followed its earlier
holding in FG Hemisphere that "contempt sanctions
against a foreign sovereign are available under the
FSIA" (637 F.3d at 379)—even as the court of appeals
expressed doubt about whether American courts can
enforce sanctions against a foreign state. U. App. 5a.
In FG Hemisphere, the D.C. Circuit acknowledged that
it was following the Seventh Circuit's decision in
Autotech Technologies LP v. Integral Research &
Development Corp., 499 F.3d 737, 744 (7th Cir. 2007)
and rejecting the Fifth Circuit's contrary ruling in AfCap, Inc. v. Republic of Congo, 462 F.3d 417, 428 (5th
Cir. 2006) (the FSIA "describe[s] the available
methods of attachment and execution against property
10 The D.C. Circuit did not cite a single pre-FSIA case in which a
federal court exercised jurisdiction under 18 U.S.C. § 3231 in an
action against a foreign state.

 29
of foreign states. Monetary sanctions are not
included."). The conflict is real and, like the other
questions presented, has ramifications for America's
relationships with other countries. A contempt order
"offends diplomatic niceties even if it is ultimately set
aside on appeal." In re Papandreou, 139 F.3d 247, 251
(D.C. Cir. 1998).
a. The FSIA codified the longstanding rule
in domestic and international law that
foreign sovereigns enjoy absolute
immunity from contempt sanctions.
The D.C. Circuit was wrong to conclude—in FG
Hemisphere and below—that an American court can
impose contempt sanctions against a foreign state."
As the United States Government has explained in
four recent appeals—including a Second Circuit case
in which the Government argued (as amicus curiae)
that the D.C. Circuit reached the wrong result in FG
Hemisphere—nothing in the FSIA authorizes
sanctions (monetary or otherwise) against a foreign
state.
The FSIA "provides as a default that 'the property
in the United States of a foreign state shall be immune
from attachment arrest and execution." Rubin, 138 S.
Ct. at 822 (quoting 28 U.S.C. § 1609). As with a foreign
state's jurisdictional immunity, the FSIA codifies (at
28 U.S.C. §§ 1610 and 1611) certain limited exceptions
to a foreign state's property's immunity from
11

The district court lacked subject-matter jurisdiction over this
dispute, so it necessarily lacked jurisdiction to hold Country A in
contempt or to impose a sanction.

 30
attachment and execution. But "there is no escaping
the fact that [those exceptions] are more narrowly
drawn" than the exceptions to jurisdictional immunity
in §§ 1605-1607. Autotech Techs., 499 F.3d at 749. The
FSJks exceptions "providefl the sole, comprehensive
scheme for enforcing judgments against foreign
sovereigns." Af-Cap, 462 F.3d at 428.
None of the FSIA's exceptions authorizes contempt
sanctions against a foreign state. The exceptions
apply, for example, when a foreign sovereign has
waived its immunity from attachment and execution
(28 U.S.C. § 1610(b)(1)), when "the judgment relates
to a claim" for which the sovereign is not immune
under the commercial-activities exception (id.
§ 1610(b)(2)) (emphasis added), or when "the
judgment relates to a claim" for which the sovereign is
not immune under the terrorism exception (id.
§ 1610(b)(3)) (emphasis added). This case does not
involve waiver or the terrorism exception. Nor does it
involve "a claim for which the agency or
instrumentality is not immune by virtue of [the
commercial-activity exception]
Id. § 1610(b) (2).
There is no "claim" in this case—and certainly no
claim giving rise to the district court's sanctions order.
See S. App. 101a; see also Claim, Black's Law
Dictionary (10th ed. 2014) (a claim for relief is "[a]
demand for money, property, or a legal remedy to
which one asserts a right; especially, the part of a
complaint in a civil action specifying what relief the
plaintiff asks for"); U.S. Amicus Br. 7, FG Hemisphere
Assocs., LLC v. Democratic Republic of Congo, No. 107046, 2010 WL 4569107, at *7 (D.C. Cir. Oct. 7, 2010)
("An order imposing monetary sanctions for contempt
."

 31
of court does not involve a claim based upon
commercial activity as required by § 1610(a)(2).").
Tracking the FSIA's plain language, the Fifth Circuit
held in Af-Cap that the FSIA categorically prohibits
monetary sanctions against a foreign state. 462 F.3d
at 428.
The statutory language admits of no amibiguity,
but if it did, the FSIA's legislative history confirms
that contempt sanctions are not available against a
foreign state. See H.R. Rep. No. 94-1487, at 22 ("[A]
foreign diplomat or official could not be imprisoned for
contempt because of his government's violation of an
injunction. Also a fine for violation of an injunction
may be unenforceable if immunity exists under sections
1609-1610.") (emphasis added). Eleven years later,
the State Department's Deputy Legal Advisor
explained—in testimony on proposed amendments to
the FSIA—that the statute does not permit even the
"imposition of a fine on a foreign state
for a state's
failure to comply with a court order" and that, in any
event, sanctions against foreign states are
unenforceable. Hearing on H.R. 1149,- H.R. 1689, and
H.R. 1888, Before the Subcommittee on
Administrative Law and Governmental Relations of
the House Judiciary Committee, 100th Cong., 1st
Sess., at 19 (1987) (emphasis added).
.

.

.

Which brings us full circle: When Congress enacted
the FSIA, it codified the rule from international law
granting foreign sovereigns absolute immunity from
contempt sanctions. "[A]t the time the FSIA was
passed, the international community viewed
execution against a foreign state's property as a

 32
greater affront to its sovereignty than merely
permitting jurisdiction over the merits of an action."
Conn. Bank of Commerce v. Republic of Congo, 309
F.3d 240, 255-56 (5th Cir. 2002); Autotech Techs., 499
F.3d at 749 (before "the FSIA, the United States gave
absolute immunity to foreign sovereigns from the
execution of judgments"). To this day, absolute
immunity from enforcement remains the rule in many
countries. See, e.g., Hazel Fox, International Law and
the Restraints on the Exercise of Jurisdiction by
National Courts of States, in M. Evans, ed.,
International Law 364, 366, 371 (2003) ("[I]mmunity
from enforcement jurisdiction remains largely
absolute."); id. at 371 (immunity rule extends to
sanctions orders); European Convention on State
Immunity, (E.T.S. No. 074), art. 18 (1972),
http://conventions.coe.int/Treaty/en/Treaties/I-Itml/07
4.htm (same); United Nations Convention on
Jurisdictional Immunities of States and Their
Properties, art. 24(1) (same).
To be sure, in crafting the limited exceptions to
property immunity in §§ 1610 and 1611, Congress
moved ever so slightly away from the absolute
immunity that most other countries extend to foreign
states and their agencies and instrumentalities. But
that movement is measurable in inches, not feet. For
all matters not covered by the FSIA's exceptions—
including for contempt sanctions (monetary or nonmonetary)—foreign states continue to enjoy absolute
immunity from enforcement.
None of the FSIA's exceptions applies, so the
district court should not have imposed contempt

 sanctions against Country A. At the very least, the
district court has no power to enforce its order.
b. The U.S. Government has argued
consistently in other litigation that
American courts have no authority to
impose contempt sanctions on foreign
states.

.That has-been the Executive Branch's position in
at least four recent appeals. In each case, the
Government has explained that the FSIA precludes
American courts from enforcing sanctions awards
against foreign states and that judicial restraint, the
FSIA's legislative history, international law, and
international comity all militate against courts'
entering unenforceable sanctions orders in the first
place.

 34
Consider, for instance, the following passage from
the U.S. Government's amicus brief in a recent Second
Circuit appeal:
Absent a specific waiver by the foreign state, an
order of monetary contempt sanctions is
unenforceable under the FSIA. Such orders are
also inconsistent with international practice,
can cause considerable friction with foreign
governments, and open the door to reciprocal
orders against the United States in foreign
courts.
U.S. Amicus Br. 3, SerVaas Inc. v. Mills, No. 14-385,
2014 WL 4656925, at *3 (2d Cir. Sept. 9, 2014). The
U.S. Government took the same position in Af-Cap
(Fifth Circuit), FG Hemisphere (D.C. Circuit), and
Belize Telecom (Eleventh Circuit). See, e.g., U.S.
Amicus Br. 3, Af-Cap, Inc. v. Republic of Congo, No.
05-51168 (5th Cir. Mar. 13, 2006); U.S. Amicus Br. 3,
FG Hemisphere, 2010 WL 4569107, at *3; see also U.S.
Amicus Br. 19, Af-Cap, No. 05-51168 (referring to
Executive Branch's argument in Belize Telecom Ltd. v.
Government of Belize, No. 05-12641 (11th Cir. Aug. 17,
2005)).
As the Government explained in all those cases,
reciprocity concerns fueled Congress's policy choices
on that score: "Where U.S. practice diverges from
international practice, other governments may react
by subjecting the United States to similar enforcement
mechanisms when our Government litigates abroad."
U.S. Amicus Br. 13, Af-Cap, No. 05-51168; see also id.
at 2 ("the treatment of foreign states in U.S. courts has
significant implications for the treatment of the

 35
United States Government by the courts of other
nations"). In SerVaas, the Government illustrated its
point with a real-world example: When an American
court in the District of Columbia levied $50,000-perday monetary sanctions against Russia for not
complying with a court order, Russia reciprocated by
suing the United States and levying $50,000-per-day
in sanctions against the American government. See
U.S. Amicus Br. 26-27, SerVaas, 2014 WL 4656925,
at *2627
Interpreting the FSIA to authorize monetary
sanctions against a foreign state would also lead to a
double standard. In its own courts, the United States
enjoys absolute immunity from monetary sanctions
unless Congress abrogates that immunity. See U.S.
Amicus Br. 19-20, Af-Cap, No. 05-51168. American
courts should not apply a different standard to foreign
states. Id.
III.

THE QUESTIONS PRESENTED ARE
AMONG THE MOST IMPORTANT UNDER
THE FSIA.

The questions presented in this petition go to the
very nature of sovereign dignity and power. They rank
among the most important that this Court could
address in the sovereign-immunity context. Sovereign
immunity derives "from standards of public morality,
fair dealing, reciprocal self-interest, and respect for
the 'power and dignity' of the foreign sovereign." Nat'l
City Bank of New.York v. Republic of China, 348 U.S.
356, 362 (1955). Among those standards, concerns
about reciprocity—either the desire for it or fear of it—
have played the largest role in shaping sovereign

 36
immunity. See, e.g., Schooner Exchange, 11 U.S. at
136-37 (sovereign immunity is grounded in "[a]
common interest impelling [countries] to mutual
intercourse"). In fact, many countries have effectively
reduced sovereign immunity to reciprocity. See, e.g.,
Persinger v. Islamic Republic of Iran, 729 F.2d 835,
841 (D.C. Cir. 1984) ("some foreign states base their
sovereign immunity decisions on reciprocity"); see also
Law of the People's Republic of China on Judicial
Immunity from Compulsory Measures Concerning the
Property of Foreign Central Banks (Oct. 25, 2005), art.
3 (with sovereign-immunity determinations, "the
People's Republic of China shall apply the principle of
reciprocity"); Federal Law on Jurisdictional Immunity
of a Foreign State and a Foreign State's Property in
the Russian Federation, art. 5 (Oct. 28, 2015) (same). 12
Concerns about reciprocity lurk in the background
of every decision under the FSIA—even as it is for
Congress to calibrate American policy to address those
concerns. But reciprocity concerns are front and center
in this case. Through the FSIA, Congress codified the
principle that one sovereign may not exercise criminal
jurisdiction over another. With its decision below, the
court of appeals erased that rule from the most
prominent circuit in the United States—one that is
Headlines from the last month confirm that reciprocity
remains the driving force in international law. See, e.g., Chun
Han Wong et al., 'No Coincidence China's Detention of Canadian
Seen as Retaliation for Huawei Arrest, Wall Street Journal (Dec.
12, 2018), https://www.wsj .com/articles/no-coincidence-chinasdetention-of-canadian-seen-as-retaliation-for-huawei-arrest115446 19753?modsearchresults&p age= 1 &posl.
12

 37
frequently the battleground for the most sensitive
issues in the American legal system. In doing so, the
court of appeals rejected holdings from this Court and
from at least eight sister circuits (including the Sixth
Circuit's decision in Keller). The resulting fissure in
American immunity law will not go unnoticed on the
world stage.
Ironically, it comes at a time when the United
States is leading the resistance against certain
countries' efforts to restrict immunity in the criminal
context. Although immunity from criminal process
remains the background rule in international law,
efforts to change that (at least in part) are afoot. Take,
for instance, the International Criminal Court's Rome
Statute, which represents some countries' efforts to
restrict foreign sovereign immunity in certain
criminal proceedings. See Rome Statute of the
International Criminal Court,, art. 5, July 17, 1998,
2187 U.N.T.S. 90. We don't have to speculate about
how the United States would react if the International
Criminal Court or a foreign state tried to enmesh the
United States in a foreign criminal process. The
United States has rejected the International Criminal
Court. See, e.g., Matthew Lee, Bolton: International
Criminal Court 'Already Dead to Us,'AP NEWS (Sept.
11, 2018), https://apnews.com/4831767ed5db484ead5
74a402a 5e7a85 (U.S. National Security Advisor John
Bolton: "The International Criminal Court
unacceptably threatens American sovereignty and
U.S. national security interests."); see also 22 U.S.C.
§ 7421(11) ("The United States will not recognize the
jurisdiction of the International Criminal Court over
United States nationals."); id. § 7423(b) ("[N]o United

 States Court, and no agency or entity of any State or
local government, including any court, may cooperate
with the International Criminal Court in response to
a request for cooperation submitted by the
International Criminal Court pursuant to the Rome
Statute."). The United States has argued with the
force of history that one foreign sovereign may not
exercise criminal jurisdiction over another. But the
courts below have now sent the opposite message to
the world community.
This Court should reverse the D.C. Circuit's
judgment before it upsets foreign relations in a way
that an American judicial decision never should.
CONCLUSION
If left to stand, the judgment below could throw
immunity principles into disarray around the world.
This Court should grant certiorari and, having done
that, should reverse the judgment below.
January 3, 2019

Attorneys for Petitioner