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SUPREME COURT OF THE UNITED STATES
_________________
No. 15–423
_________________
BOLIVARIAN REPUBLIC OF VENEZUELA, et al.,
PETITIONERS v. HELMERICH & PAYNE IN-TERNATIONAL DRILLING
CO., et al.
on writ of certiorari to the united states
court of appeals for the district of columbia circuit
[May 1, 2017]
Justice Breyer delivered the opinion of the
Court.
The Foreign Sovereign Immunities Act of 1976
(FSIA or Act), provides, with specified exceptions, that a “foreign
state shall be immune from the jurisdiction of the courts of the
United States and of the States . . . .” 28
U. S. C. §1604. One of the jurisdictional exceptions—the
expropriation exception—says that
“[a] foreign state shall not be immune
from the jurisdiction of courts of the United States or of the
States in any case . . . (3) in which rights in property
taken in violation of international law are in issue and that
property . . . is owned or operated by an agency
orinstrumentality of the foreign state . . . engaged ina
commercial activity in the United States.” §1605(a)(3).
The question here concerns the phrase “case
. . . in which rights in property taken in violation of
international law are in issue.”
Does this phrase mean that, to defeat sovereign
immu-nity, a party need only make a “nonfrivolous” argument that
the case falls within the scope of the exception? Once made, does
the existence of that nonfrivolous argument mean that the court
retains jurisdiction over the case until the court decides, say,
the merits of the case? Or does a more rigorous jurisdictional
standard apply? To put the question more generally: What happens in
a case where the party seeking to rely on the expropriation
exception makes a nonfrivolous, but ultimately incorrect, claim
that his property was taken in violation of international law?
In our view, a party’s nonfrivolous, but
ultimately incorrect, argument that property was taken in violation
of international law is insufficient to confer jurisdiction.
Rather, state and federal courts can maintain jurisdiction to hear
the merits of a case only if they find that the property in which
the party claims to hold rights was indeed “property taken in
violation of international law.” Put differently, the relevant
factual allegations must make out a legally valid claim that a
certain kind of right is at issue (property rights) and that
the relevant property was taken in a certain way (in violation of
international law). A good argument to that effect is not
sufficient. But a court normally need not resolve, as a
jurisdictional matter, disputes about whether a party actually held
rights in that prop-erty; those questions remain for the merits
phase of the litigation.
Moreover, where jurisdictional questions turn
upon further factual development, the trial judge may take evidence
and resolve relevant factual disputes. But, consistent with foreign
sovereign immunity’s basic objective, namely, to free a foreign
sovereign from suit, the court should normally resolve those
factual disputes and reach a decision about immunity as near to the
outset of the case as is reasonably possible. See Verlinden
B. V. v. Central Bank of Nigeria, 461 U. S. 480
–494 (1983).
I
Since the mid-1970’s a wholly owned
Venezuela-incorporated subsidiary (Subsidiary) of an American
company (Parent) supplied oil rigs to oil development entities that
were part of the Venezuelan Government. In 2011 the American Parent
company and its Venezuelan Subsidiary (the respondents here)
brought this lawsuit in federal court against those foreign
government entities. (The entities go by their initials, PDVSA, but
we shall normally refer to them as “Venezuela” or the “Venezuelan
Government.”) The American Parent and the Venezuelan Subsidiary
claimed that the Venezuelan Government had unlawfully expropriated
the Subsidiary’s oil rigs. And they sought compensation.
According to stipulated facts, by early 2010 the
Venezuelan Government had failed to pay more than $10 million that
it owed the Subsidiary. At that point the government sent troops to
the equipment yard where the rigs were stored, prevented the
Subsidiary from removing the rigs, and issued a “ ‘Decree of
Expropriation’ ” nationalizing the rigs. App. 72–74.
Subsequently, the president of the oil development entities led a
rally at the Subsidiary’s offices, where he referred to the
Venezuelan Subsidiary as an “ ‘American company’ ” with
“ ‘foreign gentlemen investors.’ ” Id., at
54.
Venezuela asked the court to dismiss the case on
the ground that Venezuela possessed sovereign immunity and that the
court consequently lacked “jurisdiction” to hear the case. See 28
U. S. C. §1604; Fed. Rules Civ. Proc. 12(b)(1) and
(b)(2); Verlinden, supra, at 485, n. 5
(explaining that a court lacks “subject-matter” and “personal”
jurisdiction over a foreign sovereign unless an FSIA exception
applies). The companies replied that the case falls within the
expropriation exception. Venezuela in turn argued that the
Subsidiary’s expropriation claim did not satisfy the exception
because “ ‘international law does not cover expropriations of
property belonging to a country’s own nationals’ ”; the taking
was not “ ‘in violation of international law,’ ” and the
exception thus does not apply. Record in No. 11–cv–01735 (D DC),
Doc. 22, p. 13. Venezuela further argued that the American Parent’s
nationality makes no difference because, “as a corporate parent,
[it] does not own [the Subsidiary’s] assets.” Id., Doc.
24,at 12.
The parties agreed that the District Court
should then decide whether the exception applies, and it should do
so on the basis of governing law, taking all of the plaintiffs’
well-pleaded allegations as true and construing the complaint in
the light most favorable to the plaintiffs. App. 119. The court
decided, in relevant part, that the exception did not apply to the
Venezuelan Subsidiary’s claim because the Subsidiary was a national
of Venezuela. See 971 F. Supp. 2d 49, 57–61 (2013). The court
concluded that Venezuela consequently possessed sovereign
immu-nity, and it dismissed the Subsidiary’s claim on
jurisdictional grounds. It rejected, however, Venezuela’s argument
that the Parent had no rights in property in the Subsidiary. It
concluded that Venezuela’s “actions have deprived [the Parent],
individually, of its essential and unique rights as sole
shareholder . . . by dismantling its voting power,
destroying its ownership, and frustrating its control over the
company.” Id., at 73.
The Venezuelan Subsidiary appealed the dismissal
of its expropriation claim, and Venezuela appealed the court’s
refusal to dismiss the Parent’s claim. The Court of Appeals for the
District of Columbia Circuit reversed in part and affirmed in part
the District Court’s conclusions. It decided that both the
Subsidiary’s and the Parent’s claims fell within the exception.
With respect to the Subsidiary’s claim, the
court agreed that a sovereign’s taking of its own nationals’
property normally does not violate international law. But,
the court said, there is an “exception” to this rule. And that
exception applies when a sovereign’s expropriation unreasonably
discriminates on the basis of a company’s shareholders’
nationality, 784 F. 3d 804, 812 (CADC 2015) (citing Banco
Nacional de Cuba v. Sabbatino, 307 F. 2d 845 (CA2
1962)). That exception, it added, might apply here, in which case
the expropriation would violate international law, the FSIA’s
expropriation exception would apply, and the federal courts would
possess jurisdiction over the case. 784 F. 3d, at 813. With
respect to the Parent’s expropriation claim, the court agreed with
the District Court that the expropriation exception applied because
the Parent had “ ‘put its rights in property in issue in a
non-frivolous way.’ ” Id., at 816.
For present purposes, it is important to keep in
mind that the Court of Appeals did not decide (on the basis of the
stipulated facts) that the plaintiffs’ allegations are
sufficient to show their property was taken in violation of
international law. It decided instead that the plaintiffs
might have such a claim. And it made clear the legal
standard that it would apply. It said that, in deciding whether the
expropriation exception applies, it would set an “exceptionally low
bar.” Id., at 812. Any possible, i.e.,
“ ‘non-frivolous,’ ” ibid., claim of expropriation
is sufficient, in the Court of Appeals’ view, to bring a case
within the scope of the FSIA’s exception. In particular: If a
plaintiff alleges facts and claims that permit the plaintiff to
make an expropriation claim that is not “ ‘wholly
insubstantial or frivolous,’ ” then the exception permits
the suit and the sovereign loses its immunity. Ibid.
(emphasis added). Given the factual stipulations, the Court of
Appeals did not suggest further factfinding on this jurisdictional
issue but, rather, decided that the Subsidiary had “satisfied this
Circuit’s forgiving standard for surviving a motion to dismiss in
an FSIA case.” Id., at 813.
Venezuela filed a petition for certiorari asking
us to decide whether the Court of Appeals had applied the correct
standard in deciding that the companies had met the expropriation
exception’s requirements. We agreed to do so.
II
Foreign sovereign immunity is jurisdictional
in this case because explicit statutory language makes it so. See
§1604 (“[A] foreign state shall be immune from the jurisdiction of
the courts of the United States and of the States except as
provided” by the FSIA’s exceptions); §1605(a) (“A foreign state
shall not be immune from the jurisdiction” of federal and state
courts if the exception at issue here is satisfied). Given the
parties’ stipulations as to all relevant facts, our inquiry poses a
“ ‘pure question of statutory construction,’ ”
Republic of Austria v. Altmann, 541 U. S. 677,
701 (2004) .In our view, the expropriation exception grants
jurisdiction only where there is a valid claim that “property” has
been “taken in violation of international law.” §1605(a)(3). A
nonfrivolous argument to that effect is insufficient.
For one thing, the provision’s language, while
ambiguous, supports such a reading. It says that there is
jurisdiction in a “case . . . in which rights in property
taken in violation of international law are in issue.” Ibid.
Such language would normally foresee a judicial decision about the
jurisdictional matter. And that matter is whether a certain kind of
“right” is “at issue,” namely, a property right taken in
violation of international law. To take a purely hypothetical
example, a party might assert a claim to a house in a foreign
country. If the foreign country nationalized the house and, when
sued, asserted sovereign immunity, then the claiming party would as
a jurisdictional matter prove that he claimed “property” (which a
house obviously is) and also that the property was “taken in
violation of international law.” He need not show as a
jurisdictional matter that he, rather than someone else,
owned the house. That question is part of the merits of the case
and remains “at issue.”
We recognize that merits and jurisdiction will
sometimes come intertwined. Suppose that the party asserted a claim
to architectural plans for the house. It might be necessary to
decide whether the law recognizes the kind of right that he
asserts, or whether it is a right in “property” that was “taken in
violation of international law.” Perhaps that is the only serious
issue in the case. If so, the court must still answer the
jurisdictional question. If to do so, it must inevitably decide
some, or all, of the merits issues, so be it.
Our reading of the statute is consistent with
its language. The case is one which the existence of “rights”
remains “at issue” until the court decides the merits of the case.
But whether the rights asserted are rights of a certain kind,
namely, rights in “property taken in violation of international
law,” is a jurisdictional matter that the court must typically
decide at the outset of the case, or as close to the outset as is
reasonably possible.
Precedent offers a degree of support for our
interpretation. In Permanent Mission of India to United
Nations v. City of New York, 551 U. S. 193 (2007) ,
we interpreted a different FSIA exception for cases “in which
. . . rights in immovable property situated in the United
States are in issue.” §1605(a)(4). We held that there was
jurisdiction over the case because the plaintiff’s lawsuit to
enforce a tax lien “directly implicate[d]” the property rights
described by the FSIA exception. See id., at 200–201. We did
not simply rely upon a finding that the plaintiff had made a
nonfrivolous argument that the exception applied.
For another thing, one of the FSIA’s basic
objectives, as shown by its history, supports this reading. The Act
for the most part embodies basic principles of international law
long followed both in the United States and elsewhere. See
Schooner Exchange v. McFaddon, 7 Cranch 116, 136–137
(1812); see also Verlinden, 461 U. S., at 493
(explaining that the Act “comprehensively regulat[es] the
amen-ability of foreign nations to suit in the United States”). Our
courts have understood, as international law itself understands,
foreign nation states to be “independent sovereign” entities. To
grant those sovereign entities an immunity from suit in our courts
both recognizes the “absolute independence of every sovereign
authority” and helps to “ ‘induc[e]’ ” each nation state,
as a matter of “ ‘international comity,’ ” to
“ ‘respect the independence and dignity of every
other,’ ” including our own. Berizzi Brothers Co. v.
S. S. Pesaro, 271 U. S. 562, 575 (1926)
(quoting The Parlement Belge, [1880] 5 P. D. 197, 214–215
(appeal taken from Admiralty Div.)).
In the mid-20th century, we, like many other
nations, began to treat nations acting in a commercial capacity
like other commercial entities. See Permanent Mission,
supra, at 199–200. And we consequently began to limit our
recognition of sovereign immunity, denying that immunity in cases
“arising out of a foreign state’s strictly commercial acts,” but
continuing to apply that doctrine in “suits involving the foreign
sovereign’s public acts,” Verlinden, 461 U. S.,
at 487 (emphasis added).
At first, our courts, aware of the expertise of
the Executive Branch in matters of foreign affairs, relied heavily
upon the advice of that branch when deciding just when and how this
“restrictive” sovereign immunity doctrine applied. Ibid. See
also H. R. Rep. No. 94–1487, pp. 8–9 (1976) (similar). But in
1976, Congress, at the urging of the Department of State and
Department of Justice, began to codify the doctrine. The resulting
statute, the FSIA, “starts from a premise of immunity and then
creates exceptions to the general principle.” Id., at 17;
Verlinden, supra, at 493. Almost all the exceptions
involve commerce or immovable property located in the United
States. E.g., §§1605(a)(2) and (4); see also §1602
(expressing the finding that “[u]nder international law, states are
not immune from the jurisdiction of foreign courts insofar as their
commercial activities are concerned”). The statute thereby creates
a doctrine that by and large continues to reflect basic principles
of international law, in particular those principles embodied in
what jurists refer to as the “restrictive” theory of sovereign
immunity. See, e.g., Restatement (Third) of Foreign
Relations Law of the United States §451, and Comment a
(1986) (describing the restrictive theory of immunity); United
Nations General Assembly, Convention on Jurisdictional Immunities
of States and Their Property, Res. 59/38, Arts. 5, 10–12 (Dec. 2,
2004) (adopting a restrictive theory of immunity and withdrawing
immunity for loss of property where, among other requirements, “the
act or omission occurred in whole or in part in the territory of
th[e] other State”); United Nations General Assembly, Report of the
Ad Hoc Committee on Jurisdictional Immunities of States and
Their Property, Supp. A/59/22 No. 1, pp. 7–11 (Mar. 1–5, 2004)
(same).
We have found nothing in the history of the
statute that suggests Congress intended a radical departure from
these basic principles. To the contrary, the State Department,
which helped to draft the FSIA’s language (and to whose views on
sovereign immunity this Court, like Congress, has paid special
attention, Altmann, 541 U. S., at 696), told Congress
that the Act was “drafted keeping in mind what we believe to be the
general state of the law internationally, so that we conform fairly
closely . . . to our accepted international standards,”
Hearing on H. R. 3493 before the Subcommittee on Claims and
Governmental Relations of the House of Representatives Committee on
the Judiciary, 93d Cong., 1st Sess., 18 (1973). The Department
added that, by doing so, we would diminish the likelihood that
other nations would each go their own way, thereby “subject[ing]”
the United States “abroad” to more claims “than we permit in this
country . . . .” Ibid. It is consequently not
surprising to find that the expropriation exception on its face
emphasizes conformity with international law by requiring not only
a commercial connection with the United States but also a taking of
property “in violation of international law.”
We emphasize this point, embedded in the
statute’s language, history, and structure, because doing so
reveals a basic objective of our sovereign immunity doctrine, which
a “nonfrivolous-argument” reading of the expropriation exception
would undermine. A sovereign’s taking or regulating of its own
nationals’ property within its own territory is often just the kind
of foreign sovereign’s public act (a “jure imperii”) that
the restrictive theory of sovereign immunity ordinarily leaves
immune from suit. See Permanent Mission, 551 U. S., at
199 (describing the FSIA’s distinction between public acts, or
jure imperii, and purely commercial ones); Restatement
(Third) of Foreign Relations Law of the United States §712, at 196
(noting that, under international law, a state is responsible for a
“taking of the property of a national of another state”
(emphasis added)). See also Restatement (Fourth) of Foreign
Relations Law of the United States §455, Reporter’s Note 12, p. 9
(Tent. Draft No. 2, Mar. 22, 2016) (noting that “[n]o provision
comparable” to the exception “has yet been adopted in the domestic
immunity statutes of other countries” and that expropriations are
considered acts jure imperii); United States v.
Belmont, 301 U. S. 324, 332 (1937) ; B. Cheng & G.
Schwarzberger, General Principles of Law as Applied by
International Courts and Tribunals 37–38 (1953) (collecting cases
describing “the power of the sovereign State to expropriate”
(internal quotation marks omitted)); Jurisdictional Immunities
of the State (Germany v. Italy), 2012 I. C. J.
99, 123–125, ¶¶56–60 (Judgt. of Feb. 3) (noting consistent state
practice in respect to the distinction between public and
commercial acts and describing an international law of immunity
recognizing such a difference); Altmann, supra, at
708 (Breyer, J., concurring) (describing the French Court of
Appeals’ decision about whether a King who has abdicated the throne
is “ ‘entitled to claim . . . immunity’ ” as
“ ‘Hea[d] of State’ ” when his sovereign status at the
time of suit was in doubt (quoting Ex-King Farouk of Egypt
v. Christian Dior, 84 Clunet 717, 24 I. L. R. 228, 229 (CA
Paris 1957))).
To be sure, there are fair arguments to be made
that a sovereign’s taking of its own nationals’ property sometimes
amounts to an expropriation that violates international law, and
the expropriation exception provides that the general principle of
immunity for these otherwise public acts should give way. But such
arguments are about whether such an expropriation does violate
international law. To find jurisdiction only where a taking
does violate international law is thus consistent
with basic international law and the related statutory objectives
and principles that we have mentioned. But to find jurisdiction
where a taking does not violate international law
(e.g., where there is a nonfrivolous but ultimately
incorrect argument that the taking violates international
law) is inconsistent with those objectives. And it is difficult to
understand why Congress would have wanted that result.
Moreover, the “nonfrivolous-argument”
interpretation would, in many cases, embroil the foreign sovereign
in an American lawsuit for an increased period of time. It would
substitute for a more workable standard (“violation of
international law”) a standard limited only by the bounds of a
lawyer’s (nonfrivolous) imagination. It would create increased
complexity in respect to a jurisdictional matter where clarity is
particularly important. Hertz Corp. v. Friend, 559
U. S. 77 –95 (2010). And clarity is doubly important here
where foreign nations and foreign lawyers must understand our
law.
Finally, the Solicitor General and the
Department of State also warn us that the nonfrivolous-argument
interpretation would “affron[t]” other nations, producing friction
in our relations with those nations and leading some to reciprocate
by granting their courts permission to embroil the United States in
“expensive and difficult litigation, based on legally insufficient
assertions that sovereign immunity should be vitiated.” Brief for
United States as Amicus Curiae 21–22. (At any given time the
Department of Justice’s Office of Foreign Litigation represents the
United States in about 1,000 cases in 100 courts around the world.
Ibid.) See also National City Bank of N. Y. v.
Republic of China, 348 U. S. 356, 362 (1955) (noting
that our grant of immunity to foreign sovereigns dovetails with our
own interest in receiving similar treatment).
III
The plaintiffs make two important arguments to
the contrary. First, they point to the federal statute that gives
federal courts jurisdiction over cases “arising under the
Constitution, laws, or treaties of the United States,” 28
U. S. C. §1331. They note that in Bell v.
Hood, 327 U. S. 678 (1946) , this Court held that the
“arising under” statute confers jurisdiction if a plaintiff can
make a nonfrivolous argument that a federal law provides the relief
he seeks—even if, in fact, it does not. See id., at 685
(jurisdiction exists where, if the “Constitution and laws of the
United States are given one construction,” a claim will be
“sustained,” but if the laws are given a different construction,
the claim “will be defeated”). And the plaintiffs say we should
treat the expropriation exception similarly.
Section 1331, however, uses different language
from the expropriation exception (“arising under”) and focuses on
different concerns. Section 1331 often simply determines which
court’s doors are open (federal or state). Cf. Mims v.
Arrow Financial Services, LLC, 565 U. S. 368
–379 (2012). Unlike the FSIA, neither that jurisdictional section
nor related jurisdictional sections seeks to provide a sovereign
foreign nation (or any party) with immunity—the basic FSIA
objective. See Dole Food Co. v. Patrickson, 538
U. S. 468, 479 (2003) (FSIA’s objective is to give “protection
from the inconvenience of suit as a gesture of comity”);
Republic of Philippines v. Pimentel, 553 U. S.
851, 866 (2008) . And unlike the expropriation exception, the
“arising under” statute’s language does not suggest that
consistency with international law is of particular importance.
Moreover, this Court has interpreted other
jurisdictional statutes differently. Where jurisdiction depends on
diversity of citizenship, for example, courts will look to see
whether the parties are in fact diverse, not simply whether they
are arguably so. See Indianapolis v. Chase Nat. Bank,
314 U. S. 63, 69 (1941) ; McNutt v. General Motors
Acceptance Corp., 298 U. S. 178, 189 (1936) ; see also 13E
C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure §3611 (2009). We do not believe either jurisdictional
analogy ( 28 U. S. C. §1331 or §1332) is particularly
helpful, but the expropriation exception’s substantive goals
suggest that the diversity jurisdiction example provides a
marginally closer analogy.
Second, the plaintiffs argue that the
nonfrivolous-argument approach will work little harm. They say that
a court faced with an arguable, but ultimately incorrect, claim of
jurisdiction can simply decide the same question—say, whether there
was a “violation of international law”—as part of its decision on
the merits. Thus a foreign sovereign defendant (in court because a
plaintiff has made a nonfrivolous but incorrect argument that its
property was taken in violation of international law) can simply
move for judgment on the merits under Rule 12(b)(6), which provides
for judgment where a plaintiff does not “state a claim upon which
relief can be granted.” Or the defendant could move for summary
judgment under Rule 56. In a word, the defendant may not need to
undergo a full trial and judgment, remaining in court until the
bitter end.
These alternatives, however, have their own
problems. For one thing, they will sometimes mean increased delay,
imposing increased burdens of time and expense upon the foreign
nation. For another, where a district court decides that there is a
“violation of international law” as a matter of
jurisdiction, then (according to the Courts of Appeals) the
losing sovereign nation can immediately appeal the decision as a
collateral order. But the same decision made to dispose of, say, a
Rule 12(b)(6) motion or a Rule 56 motion would not be a “collateral
order.” It would be a decision on the “merits.” And the foreign
sovereign would not enjoy a right to take an immediate appeal. See
Coopers & Lybrand v. Livesay, 437 U. S. 463,
468 (1978) (permitting interlocutory appeal of a collateral order
that “resolve[s] an important issue completely separate from the
merits of the action”); Will v. Hallock, 546
U. S. 345, 349 (2006) (same). See also Intel Corp. v.
Commonwealth Scientific, 455 F. 3d 1364, 1366 (CA Fed.
2006) (permitting collateral appeal of an FSIA jurisdictional
decision denying immunity); Rubin v. Islamic Republic of
Iran, 637 F. 3d 783, 785 (CA7 2011) (same); Compania
Mexicana de Aviacion v. Central Dist. of Cal., 859 F. 2d
1354, 1356 (CA9 1988) (per curiam) (same);
Foremost-McKesson v. Islamic Republic of Iran, 905
F. 2d 438, 443 (CADC 1990) (same).
Moreover, what is a court to do in a case where
a “violation of international law,” while a jurisdictional
prerequisite, is not an element of the claim to be decided
on the merits? The Circuit has suggested that they arise when the
plaintiffs’ claim is not an “expropriation claim,” but rather a
simple common-law claim of conversion, restitution, or breach of
contract, the merits of which do not involve the merits of
international law. See Simon v. Republic of Hungary,
812 F. 3d 127, 141–142 (2016). The Circuit has recognized that
there are such cases, id., at 141, and a cursory survey of
the principal district courts in which these cases are brought
confirms the reality of the problem. See, e.g., Philipp v.
Federal Republic of Ger-many, ___ F. Supp. 3d ___, 2017
WL 1207408 (DC, Mar. 31, 2017) (deciding whether the expropriation
exception is satisfied where the complaint pleads only common-law
or statutory claims for relief); De Csepel v.
Hungary, 169 F. Supp. 3d 143 (DC 2016) (similar);
Pablo Star Ltd. v. Welsh Government, 170
F. Supp. 3d 597 (SDNY 2016) (similar); Chettri v.
Nepal, 2014 WL 4354668 (SDNY, Sept. 2, 2014) (similar);
Order Granting Defendants’ Motion To Dismiss in Lu v.
Central Bank of Republic ofChina, No. 2:12–cv–317 (CD Cal.,
June 13, 2013) (similar); Orkin v. Swiss
Confederation, 770 F. Supp. 2d 612 (SDNY 2011) (similar);
Hammerstein v. Federal Republic of Germany, 2011 WL
9975796 (EDNY, Aug. 1, 2011) (similar); Cassirer v.
Kingdom of Spain, 461 F. Supp. 2d 1157 (CD Cal. 2006)
(similar). Indeed, cases in which the jurisdictional inquiry does
not overlap with the elements of a plaintiff’s claims have been the
norm in cases arising under other exceptions to the FSIA. E.g.,
Republic of Argentina v. Weltover, Inc., 504 U. S.
607, 610 (1992) (deciding whether a plaintiffs’
breach-of-contractclaim satisfied the jurisdictional requirements
of the commercial-activity exception, §1605(a)(2)).
To address the problem raised by these cases in
which the “jurisdictional and merits inquiries” are not fully
“overlap[ping],” the Circuit has held that a district court is not
to apply its nonfrivolous-argument standard in such cases.
Simon, 812 F. 3d, at 141. Rather, a court is to ask
“whether the plaintiffs’ allegations satisfy the jurisdictional
standard.” Ibid.
We can understand why the Circuit has departed
from its nonfrivolous-argument standard in these latter cases. For,
unless it did so, how could a foreign nation ever obtain a decision
on the merits of the nonfrivolous argument that a plaintiff has
advanced? But what in the statutory provision suggests that
sometimes courts should, but sometimes they should not, simply look
to the existence of a nonfrivolous argument when they decide
whether the requirements of the expropriation exception are
satisfied? It is difficult, if not impossible, to reconcile this
bifurcated approach with the statute’s language. It receives
little, if any, support from the statute’s history or purpose. And,
it creates added complexity, making it more difficult for judges
and lawyers, domestic and foreign, to understand the intricacies of
the law.
IV
We conclude that the nonfrivolous-argument
standard is not consistent with the statute. Where, as here, the
facts are not in dispute, those facts bring the case within the
scope of the expropriation exception only if they do show (and not
just arguably show) a taking of property in violation of
international law. Simply making a nonfrivolous argument to that
effect is not sufficient. Moreover, as we have previously stated, a
court should decide the foreign sovereign’s immunity defense “[a]t
the threshold” of the action. Verlinden, 461 U. S., at
493. As we have said, given the parties’ stipulations as to all
relevant facts, the question before us is purely a legal one and
can be resolved at the outset of the case. If a decision about the
matter requires resolution of factual disputes, the court will have
to resolve those disputes, but it should do so as near to the
outset of the case as is reasonably possible.
* * *
The judgment of the Court of Appeals is
vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Gorsuch took no part in the
consideration or decision of this case.
