No. 184514 8

 

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

 

SUPPLEMENTAL BRIEF UNDER RULE 15.8
SUPPORTING COUNTRY PETITION FOR
A WRIT OF CERTIORARI

EDWARD T. KANG BRIAN D. BOONE
ALSTON BIRD LLP Counsel of Record
950 STREET, NW ALSTON BIRD LLP
Washington, DC. 20004 101 S. TRYON STREET
(202) 239-3300 Charlotte, NC 28280
edward.kang@alston.com (704) 444-1000

brian.boone@alston.com

Attorneys for Petitioner

 

i
TABLE OF CONTENTS

Page

TABLE OF CONTENTS .. i

TABLE OF AUTHORITIES .. iv

I.

II.



IV.

THE D.C. OPINION

CONFIRMS THAT THE COURTS OF
APPEALS ARE DIVIDED ON THE
QUESTIONS PRESENTED IN

COUNTRY PETITION .. 3

THE D.C. CIRCUIT MANUFACTURED
SUBJECT-MATTER JURISDICTION
UNDER 18 U.S.C. 3231 BY IGNORING
THE TEXT AND THIS 
HOLDINGS. .. 5

THE D.C. OPINION IS

ROOTED IN POLICY DIFFERENCES

WITH CONGRESS AND, BY

EXTENSION, INTERNATIONAL LAW. .. 8

THE D.C. CIRCUIT ERRED IN
CONCLUDING THAT THE 
EXCEPTIONS TO JURISDICTIONAL
IMMUNITY CAN APPLY OUTSIDE OF

THE CIVIL CONTEXT .. 11

THE D.C. OPINION
CONFIRMS THAT THE QUESTIONS
PRESENTED ARE AMONG THE MOST

ii

IMPORTANT THAT THIS COURT
COULD DECIDE UNDER THE FSIA ..11

CONCLUSION ..12


SUPPLEMENTAL APPENDIX

Appendix 1 Court of appeals opinion and
concurrence (January 8, 2019) .. 1a

iv
TABLE OF AUTHORITIES

Page(s)
CASES

62 Cases of Jam 0. United States,
340 US. 593 (1951) ..8

Af-Cap Inc. 1). Republic of Congo,
462 F.3d 417 (5th Cir. 2006) .. 4

Argentine Republic 1). Amerada Hess
Shipping Corp,
488 US. 428 (1989) .. 3, 5, 6, 7

Bolivarian Republic of Venezuela 1).
Helmerich Payne International
Drilling Co.,
137 S. Ct. 1312 (2017) .. 11

Christianson v. Colt Industries Operating
Corp,
486 US. 800 (1988) ..8

Hemisphere Associates, LLC v.
Democratic Republic of Congo,
637 F.3d 373 (DC. Cir. 2011) .. 5

Gould, Inc. v. Mitsui Mining Smelting Co.,
750 F. Supp. 838 (ND. Ohio 1990) ..4

In re Investigation of World Arrangements,
13 F.R.D. 280 (D.D.C. 1952) ..9

Keller 0. Central Bank of Nigeria,
277 F.3d 811 (6th Cir. 2002) ..4



Shapiro U. Republic of Bolivia,

930 F.2d 1013 (2d Cir. 1991) .. 3
Universal Consolidated C03. 0. Bank of China,

35 F.3d 243 (6th Cir. 1994) .. 7
Verlinden B. V. U. Central Bank of Nigeria,

461 US. 480 (1983) .. 2, 4
STATUTES
18 U.S.C. 3231 .. 1, 3, 4, 5
28 U.S.C. 1330(a) ..passim
28 U.S.C. 1331 ..6
28 U.S.C. 1333 ..6
28 U.S.C. 1335 ..6
28 U.S.C. 1337 ..6
28 U.S.C. 1338 ..6
28 U.S.C. 1350 ..5
28 U.S.C. 1603 ..OTHER AUTHORITIES

Andrew Dickinson, State Immunity 
State-Owned Enterprises, 10 N0. 2 Bus.
L. Int?l 97 (2009) .. 10

Vi

H.R. Rep. No. 94-1487, reprinted in 1976
U.S.C.C.A.N. 6604 ..2, 3. 7

SUPPLEMENTAL BRIEF UNDER RULE 15.8
SUPPORTING COUNTRY PETITION FOR
A WRIT OF CERTIORARI

On December 18, 2018, the DC. Circuit issued a
judgment purporting to exercise subject?matter
jurisdiction under 18 U.S.C. 3231, denying Country
A sovereign immunity, compelling Country A to
comply with a grand jury subpoena, and affirming the
district court?s order sanctioning Country A $50,000
every day that it does not comply with the subpoena.1
The DC. Circuit issued its mandate the same day.

Less than three weeks later (on January 4),
Country A filed its petition for a writ of certiorari. On
January 8, the DC. Circuit issued an opinion
elaborating on its December 18 judgment. Supp. App.
1a. The opinion con?rms that, through its judgment,
the DC. Circuit (1) became the first American
appellate court to exercise subject-matter jurisdiction
under 18 U.S.C. 3231 in an action against a foreign
state, (2) deepened a circuit split on whether the FSIA
categorically immunizes foreign states from American
criminal jurisdiction, (3) cemented a separate circuit
split on whether the FSIA (through 28 U.S.C.
1330(a)) is the exclusive basis for subject-matter
jurisdiction in an action against a foreign state,
(4) parted ways with its sister circuits (including the
Sixth Circuit) by holding that the exceptions to

 

Because of the sealing order in place, we refer to Petitioner as
?Country Country A is a wholly-owned agency or
instrumentality of a foreign state, so it qualifies as a foreign state
under the Foreign Sovereign Immunities Act (FSIA). Country A
understands that it is only a witness in the underlying
investigation.

2

jurisdictional immunity (28 U.S.C. 1605?07) apply
outside of jurisdictional limits, and
(5) confirmed that the courts of appeals are divided on
whether an American court can order contempt
sanctions (monetary or non-monetary) against a
foreign state.

Those issues cry out for certiorari review. Congress
enacted the in part to ensure ?a uniform body of
law? in jurisdictional and immunity matters involving
foreign states. Verlinden B. V. 1). Cent. Bank of Nigeria,
461 US. 480, 493 (1983) (quoting H.R. Rep. No. 94-
1487, at 32, reprinted in 1976 U.S.C.C.A.N. 6604). The
fractures in the lower courts undermine that goal.

And the fault lines run on issues of outsized
importance to American jurisprudence and
international law: The con?icts cut to the heart of
national sovereignty and international comity. If left
to stand, the DC. Circuit?s judgment would create
chaos in the international community?possibly
alienating American allies, undermining diplomacy,
and all but guaranteeing that American agencies and
instrumentalities will (despite their protestations)
face criminal proceedings abroad. The United States
has rejected the International Criminal Court
as a threat to America?s sovereign immunity from
foreign criminal jurisdiction. With the decision below,

America has said to the world, ?Do as I say, not as I
do."

3

I. THE D.C. OPINION
CONFIRMS THAT THE COURTS OF
APPEALS ARE DIVIDED ON THE
QUESTIONS PRESENTED IN COUNTRY
PETITION.

In its petition, Country A describes multiple circuit
splits: The courts of appeals are divided on (1) Whether
28 U.S.C. 1330(a) is the exclusive basis for subject-
matter jurisdiction in an action against a foreign state,
(2) Whether foreign states are immune from American
criminal jurisdiction, and (3) Whether an American
court may enter or enforce a contempt sanction
against a foreign state. Petition for Certiorari (Pet)
17?20, 28?29. The DC. Circuit?s opinion confirms all
three splits.

Against this Court?s teaching that ?jurisdiction in
actions against foreign states is comprehensively
treated by section 1330? (Argentine Republic 1).
Amerada Hess Shipping Corp, 488 US. 428, 437 n.5
(1989) (quoting H.R. Rep. No. 94-1487, at 14)) and
eight other circuits? holdings that 28 U.S.C. 1330(a)
is the ?exclusive source of subject matter jurisdiction
in suits involving foreign states?? (Pet. 18 (quoting
Shapiro U. Republic ofBolivia, 930 F.2d 1013, 1017 (2d
Cir. 1991)), the DC. Circuit purported to exercise
subject-matter jurisdiction under 18 U.S.C. 3231, a
statute of general criminal jurisdiction that
says nothing about foreign states.

Against this Court?s and the Sixth Circuit?s
holdings that the exceptions to jurisdictional
immunity 1605?07) are civil in nature and operate
only Within jurisdictional limits (Pet. 8, 20)

4

(citing Verlinden, 461 US. at 489, and Keller U. Cent.
Bank of Nigeria, 277 F.3d 811, 820 (6th Cir. 2002)),
the DC. Circuit rejected the notion that the 
immunity ?exceptions are categorically unavailable in
criminal cases.? Supp. App. 15a. The DC. Circuit
acknowledged that the ?the few circuits to consider
th[e] issue have reached differing conclusions? about
whether the FSIA categorically immunizes foreign
states from American criminal proceedings. Supp.
App. 5a.2

And against the Fifth Circuit?s holding that
American courts have no authority to enter (let alone
enforce) contempt sanctions against foreign states
(Pet. 28?29) (citing Af-Cap Inc. v. Republic of Congo,
462 F.3d 417, 428 (5th Cir. 2006)), the DC. Circuit
held that ??contempt sanctions against a foreign
sovereign are available under the?? FSIA. Supp. App.
18a (quoting FG Hemisphere Assocs., LLC v.

 

2 In its opinion, the DC. Circuit tries to mask its disagreement
with the Sixth Circuit by suggesting that the Keller court might
have reached a different result if it had considered 18 U.S.C.
3231?s jurisdictional grant. Supp. App. 13a. The DC. Circuit
gives the Sixth Circuit little credit, but in any case, the DC.
Circuit mischaracterizes Keller. The Keller court explained that
?[t]he jurisdictional grant of the SIA 1330(a)] is silent on the
subject of criminal actions" and quoted with approval a district
court?s reasoning that ?since the FSIA is the only method of
obtaining jurisdiction over foreign sovereigns, and ?1330(a)
refers only to civil, and not criminal, actions there is no criminal
jurisdiction.? 277 F.3d at 818?20 (quoting Gould, Inc. U. Mitsui
Mining Smelling Co., 750 F. Supp. 838, 843?44 (ND. Ohio
1990)).

5

Democratic Republic of Congo, 637 F.3d 373, 379 (D.C.
Cir. 2011)).

The disagreements in the lower courts are not
going anywhere. It is time for this Court to weigh in.

II. THE D.C. CIRCUIT MANUFACTURED
JURISDICTION
UNDER 18 U.S.C. 3231 BY IGNORING
THE TEXT AND THIS 
HOLDINGS.

In concluding that it had subject-matter
jurisdiction under 18 U.S.C. 3231?a statute of
general jurisdiction that says nothing about foreign
states?the DC. Circuit reasoned that is hard to
imagine a clearer textual grant of subject-matter
jurisdiction? than in 3231. Supp. App. 6a (quoting
3231: ?The district courts of the United States shall
have original jurisdiction, exclusive of the courts of the
States, of all offenses against the laws of the United
States?); see also id. at 6a?7a means ?all?; the
provision contains no carve-out for criminal process
served on foreign defendants. And nothing in the
text expressly displaces section 3231?s
jurisdictional grant?). But the same can be said about
almost all grants of general subject-matter
jurisdiction (civil and criminal), including those at
issue in Amerada Hess that this Court held do not
apply in actions against foreign states. See, 28
U.S.C. 1350 (Alien Tort Statute: ?The district courts
shall have original jurisdiction of any civil action by
an alien for a tort only, committed in violation of the
law of nations or a treaty of the United States?); 28
U.S.C. ?1331 (granting subject-matter jurisdiction

6

over ?all civil actions arising under the Constitution,
laws, or treaties 0f the United States?).

Indeed, the DC. Circuit accepted the very
argument that this Court rejected in Amerada Hess?
that if Congress intended to preclude courts from
exercising subject-matter jurisdiction over foreign
states under statutes outside of 28 U.S.C. 1330(a), it
would have enacted pro tanto repealers of those non-
SIA statutes. This Court said the opposite in
Amerada Hess. See 488 US. at 437?38 (?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 1338 (patents,
copyrights, and 

The DC. Circuit?s holding also makes little sense.
By the court of appeals? View, Congress needed to
af?rmatively grant subject-matter jurisdiction for civil
cases against foreign states (through 28 U.S.C.
1330(a)) but didn?t need to do the same for criminal
cases against foreign states?even though exercising
criminal jurisdiction over a foreign state offends
sovereign dignity in a way that exercising civil
jurisdiction does not. Pet. 27. The court of appeals?
decision also rests on the counterintuitive conclusion
that Congress carefully limited jurisdiction in civil
cases to ?nonjury? actions (28 U.S.C. 1330(a)) but
had no qualms about letting juries decide a foreign

7

state?s fate in criminal proceedings. Compare
Universal Consol. Cos. U. Bank of China, 35 F.3d 243,
245 (6th Cir. 1994) (in 1791, ?a suit against a foreign
state was unknown to the common law?).

The DC. Circuit also tried to confine to the civil
context this Court?s holding in Amerada Hess and
other cases that the jurisdictional scheme is
exclusive. See Supp. App. 12a?13a. The court of
appeals? efforts on that score are polished revisionism
and nothing more. Regardless, the DC. Circuit
ignored that in describing the FSIA as a
?comprehensive? jurisdictional scheme, this Court
tracked the statute?s legislative history. See H.R. Rep.
No. 94-1487, at 14 in actions against
foreign states is comprehensively treated by section
1330 . . . see also id. at 12?13 (?Section 1330
provides a comprehensive jurisdictional scheme in
cases involving foreign states?).

The court of appeals also reasoned that this Court
in Amerada Hess ?gave no hint at all that it intended
to create a loophole where, in criminal cases clearly
covered by an exception to immunity, a district court
would nevertheless lack subject-matter jurisdiction.?
Supp. App. 10a. What the DC. Circuit called a
?100phole? is the longstanding rule in international
law that one sovereign may not exercise criminal
jurisdiction over another. Pet. 7. At the very least, this
Court should grant certiorari to clarify whether it
included a civil-case limitation in its holdings that the
jurisdictional scheme is exclusive.

8

THE D.C. OPINION IS
ROOTED IN POLICY DIFFERENCES
WITH CONGRESS AND, BY EXTENSION,
INTERNATIONAL LAW.

The DC. Circuit?s opinion also confirms that policy
concerns drove its jurisdictional analysis. The DC.
Circuit worries that adopting Country A?s view would
allow ?a foreign-sovereign-owned, purely commercial
enterprise operating within the United States [to]
?agrantly violate criminal laws? and that ?the US.
government would be powerless to respond save
through diplomatic pressure.? Supp. App. 10a; see also
id. at 11a (?We doubt very much that Congress so
dramatically gutted the government?s crime-?ghting
toolkit?).

But through 28 U.S.C. ?1603(a), Congress
extended to a foreign state?s agencies and
instrumentalities (including a majority-owned
corporation) the same immunity from American
criminal jurisdiction that the foreign state itself
enjoys. It is not for the DC. Circuit or any other
American court to second-guess Congress?s policy
choice on that score. See 62 Cases of Jam 0. United
States, 340 US. 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 U. Colt Indus. Operating Corp,
486 US. 800, 818 (1988) (?even in the interest of
justice,? a court ?may not in any case . . . extend its
jurisdiction where none exists?).

The DC. Circuit tried to ground its policy concerns
in supposed uncertainty over the immunity

9

status of sovereign-owned corporations. See Supp.
App. 11a (?The common law of criminal immunities for
a corporation owned by a foreign state was [unsettled]
in 1976 and remains today?). Those unidentified
common-law principles could never override
Congress?s decision to treat foreign agencies and
instrumentalities as the foreign state itself. 28 U.S.C.
1603. In any case, the supposed uncertainty is a
fiction. See, In re Investigation of World
Arrangements, 13 F.R.D. 280, 291 (D.D.C. 1952)
(collecting cases treating sovereign-owned
corporations as the sovereign itself).

The court of appeals acknowledged ?the lack of
reported cases?before and after the 
considering criminal process served on sovereign-
owned corporations.? Supp. App. 11a. But instead of
drawing the straightforward conclusion that the
absence of reported cases re?ects the absence of
subject-matter jurisdiction, the court speculated that
equally likely explanation for the absence of
cases is that most companies served with subpoenas
simply comply without objection.? Supp. App. 11a.
There is no evidence?none?supporting the DC.
Circuit?s speculation on that score. On the contrary, in
the lone case that the DC. Circuit cited?In
re Investigation of World Arrangements, 13 F.R.D. 280
(D.D.C. 1952)?a corporation owned by the British
Government successfully challenged a grand jury
subpoena on sovereign?immunity grounds. Id. at 291
corporation, Anglo-Iranian Oil Company, is
indistinguishable from the Government of Great
Britain?).

10

In another sign that the DC. Circuit strained hard
to reach its preferred result, the court of appeals cited
Andrew Dickinson?s article State Immunity State-
Owned Enterprises with the parenthetical ?(positing
that international law might allow criminal
prosecutions of?state-owned enterprises?)?. Supp. App.
11a. That is not what the article even close.
On the contrary, Dickinson acknowledged that is
generally accepted that, at least under the present
state of customary international law, criminal
proceedings cannot be brought in a municipal
jurisdiction against a foreign state.? 10 No. 2 Bus. L.
Int?l 97, 124 (2009) (emphasis added). Later in the
article, Dickinson argued in two sentences that state-
owned enterprises should enjoy immunity from
criminal jurisdiction but that a state-owned
enterprise?s ?separate legal personality? might make
it more difficult in a particular case for the enterprise
to show that it was acting as the state?s agent. Id. at
125. Dickinson was not purporting to describe the
state of international law.

In any event, the problem that Dickinson
hypothesizes is not a problem under the FSIA, for
Congress has already decided (through 28 U.S.C.
1603) to treat foreign states and their agencies and
instrumentalities as one and the same for purposes of
jurisdictional immunity.

11

IV. THE D.C. CIRCUIT ERRED IN
CONCLUDING THAT THE 
EXCEPTIONS TO JURISDICTIONAL
IMMUNITY CAN APPLY OUTSIDE OF
THE CIVIL CONTEXT.

Ignoring the textual interplay between 1330(a)
and the immunity exceptions in 1605?07,
the D.C. Circuit also concluded that the 
immunity exceptions can apply in criminal cases just
as in civil cases. But the only jurisdiction-granting
statute in the U.S. Code that incorporates the 
immunity exceptions is that the
exceptions apply only Within civil-case
limits. Indeed, the exceptions 
all [of which] involve commerce or immovable property
located in the United States??are civil in nature.
Bolivarian Republic of Venezuela. U. Helmerich 
Payne Int?l Drilling Co., 137 S. Ct. 1312, 1320 (2017);
see also Pet. 17?18; 28 U.S.C. 1605?07. This Court
should grant certiorari to settle the question once and
for all.

V. THE D.C. OPINION
CONFIRMS THAT THE QUESTIONS
PRESENTED ARE AMONG THE MOST
IMPORTANT THAT THIS COURT COULD
DECIDE UNDER THE FSIA.

The D.C. Circuit?s opinion also underscores the
importance and sensitivity of the questions presented
in Country A?s petition. Pet. 35?38. The court of
appeals agreed that the jurisdictional issue is a
?fraught question.? See Supp. App. 11a Congress
really intended to furnish a definitive answer to such

12

a fraught question, one would expect that answer to
show up clearly in the Act?s text . . . Fraught
indeed: On the world stage, the United States has
argued with the force of history that one foreign
sovereign may not exercise criminal jurisdiction over
another. The courts below have now cast doubt on
America?s commitment to that longstanding rule.

CONCLUSION

For the reasons set forth in Country A?s Petition for
Certiorari and in this Supplemental Brief, this Court
should grant certiorari and, having done that, should
reverse the judgment below.

January 16, 2019

EDWARD T. KANG BRIAN D. BOONE
ALSTON BIRD LLP Counsel of Record
950 STREET, NW ALSTON BIRD LLP
Washington, DC. 20004 101 S. TRYON STREET
(202) 239-3300 Charlotte, NC 28280

edward.kang@alston.com (704) 444-1000
brian.boone@alston.com

Attorneys for Petitioner