Petersen Energia Inversora, S. v. Argentine Republic
Filing
OPINION, Concurring in part & Dissenting in part, by RKW, FILED.[2341289] [16-3303, 16-3304]
Case 16-3303, Document 142, 07/10/2018, 2341289, Page1 of 5
WINTER, Circuit Judge, concurring in part and dissenting in part:
I agree entirely with the excellent discussion and ruling as to
whether FSIA immunizes Argentina and YPF. I dissent from the disposition of
the act‐of‐state issue.
Having rejected the Section 1292(b) motion that we hear an
interlocutory appeal ‐‐ otherwise non‐appealable ‐‐ from the district courtʹs
rejection on the pleadings of the act‐of‐state defense, my colleaguesʹ opinion is
quite clear that we lack jurisdiction over the act‐of‐state issue. It is less clear in
stating that the reason for rejecting the motion is that the issue depends on
ʺfacts.ʺ The district court ruled that the facts alleged in the complaint stated a
claim that was not subject to the act‐of‐state defense. My colleaguesʹ conclusion
that fact‐finding is needed to rule on the issue is a merits decision going to the
nature and contours of the act‐of‐state defense. Such a conclusion seems,
therefore, inconsistent with the ruling that we lack jurisdiction over the issue.
Because the reasons we give for rejecting FSIA immunity are that the harm to
plaintiffs was not caused by a sovereign, rather than commercial, act of the
Argentinian state, that portion of the opinionʹs reasoning also calls for a rejection
of the act‐of‐state defense to the claim as alleged.
Case 16-3303, Document 142, 07/10/2018, 2341289, Page2 of 5
A brief review of the relevant procedural history is in order. The
defendants moved to dismiss the complaint on the basis that the district court
lacked subject matter jurisdiction under the FSIA and that Petersenʹs claims were
barred by the act‐of‐state doctrine. The district court denied the defendantsʹ
motion on both fronts. The first issue ‐‐ FSIA immunity ‐‐ was immediately
appealable under the collateral order doctrine. Kensington Intʹl Ltd. v. Itoua, 505
F.3d 147, 153 (2d Cir. 2007). The rejection of the act‐of‐state defense was
interlocutory and not immediately appealable. The district court, believing the
conditions of Section 1292(b) had been met, certified the appeal so that we could
decide both issues in tandem. Argentina and YPF then moved this court to grant
leave for immediate appeal of the act‐of‐state issue. 2d Cir. Dkt. Nos. 16‐3510,
16‐3512. No opposition was filed to these motions. The motions were referred to
a motions panel, which then referred them to the merits panel –‐ this panel –‐ so
that ʺ[t]hat panel can decide, in the first instance, whether the act‐of‐state issue is
appropriate for immediate appeal pursuant to . . . § 1292(b).ʺ Motion Order, 2d
Cir. Dkt. No. 16‐3510 (Feb. 14, 2017).
Pursuant to 28 U.S.C. § 1292(b), we have discretion to allow an
appeal to be taken from an order not otherwise appealable when the district
2
Case 16-3303, Document 142, 07/10/2018, 2341289, Page3 of 5
judge states in writing ʺthat such order [1] involves a controlling question of law
[2] as to which there is substantial ground for difference of opinion and [3] that
an immediate appeal from the order may materially advance the ultimate
termination of the litigation.ʺ (brackets added). In my view, the established
standards under Section 1292(b) are satisfied.
First, a controlling question of law is present. Reversing the district
courtʹs holding that the act‐of‐state doctrine ʺdoes not preclude inquiry into
contractual obligations related to or arising out of [acts of expropriation],ʺ would
result in dismissal of the case. See Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21,
24 (2d Cir. 1990) (ʺ[I]t is clear that a question of law is ʹcontrollingʹ if reversal of
the district courtʹs order would terminate the action.ʺ); In re Duplan Corp., 591
F.2d 139, 148 n.11 (2d Cir. 1978).
Second, there is substantial ground for difference of opinion; in
particular, whether Argentinaʹs obligation under the bylaws to make a tender
offer was independent of Argentinaʹs sovereign acts of intervention and
expropriation.
Finally, an immediate appeal would materially advance the ultimate
termination of the case. Judicial efficiency would be served by deciding both this
3
Case 16-3303, Document 142, 07/10/2018, 2341289, Page4 of 5
issue and the FSIA question simultaneously. My colleaguesʹ conclusion as to the
lack of immunity under FSIA is that the facts alleged in the complaint do not
state a claim that implicates a sovereign, rather than commercial, act of the
Argentinian state. This conclusion resolves both the FSIA issue and the act‐of‐
state defense. Only a paragraph, if that, would be necessary to explain an
affirmance of the certified appeal if we took jurisdiction. We need say only that
assertion of an act‐of‐state defense requires that a sovereign, rather than
commercial, act has caused the harm to the plaintiffs, and no such act occurred
here.
Instead, my colleagues deny the motion, hold that we lack appellate
jurisdiction, and explain these rulings on the grounds that unspecified ʺfactsʺ are
needed to adjudicate the act‐of‐state defense. While the reason given suggests a
remand for further proceedings, my colleaguesʹ jurisdictional ruling leaves the
dismissal of the act‐of‐state defense in place and governed by the law of the case
doctrine in the district court. See Am. Hotel Intʹl Grp., Inc. v. OneBeacon Ins. Co.,
611 F. Supp. 2d 373, 378‐79 (S.D.N.Y. 2009) affʹd, 374 F. Appʹx 71 (2d Cir. 2010).
4
Case 16-3303, Document 142, 07/10/2018, 2341289, Page5 of 5
I therefore concur in the affirmance on the FSIA issue. I dissent from
the denial of the Section 1292(b) motion and would affirm the dismissal of the
act‐of‐state defense to the claim alleged in the complaint.
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?