Venezuela v. Helmerich & Payne International Drilling Company Page 16

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Media for Venezuela v. Helmerich & Payne International Drilling Company

Audio Transcription for Oral Argument - November 02, 2016 in Venezuela v. Helmerich & Payne International Drilling Company

John G. Roberts, Jr.:

Well, except that a lot of district judges don't like moving under 12(b)(6) right away.

They like to have further development before they -- before they decide whether there's a claim or not.

Catherine M.A. Carroll:

I'm -- I can't say that that's been an -- an issue in this case where there's been fair amount of agreement among the parties and the courts as to what order the issue should be decided in. The -- the petitioners here have asserted a challenge, a factual challenge to jurisdiction under the commercial nexus requirements.

They said even though PDVSA is named as the expropriating entity in the decree, and even though PDVSA initiated the eminent domain proceedings, nonetheless, we assert as a factual matter that actually we've shifted ownership and control of the property to some other PDVSA entity, and that entity doesn't engage in commercial activity in the United States, and so, therefore, there's no jurisdiction. And as a matter of fairness, of course we're entitled to examine the -- the factual basis of that assertion.

That's the only discovery that has gone on so far in the case, and it happened because the Petitioners chose to make that factual argument.

They didn't have to.

They could have just said, we think we have a great legal argument on the merits, and so we're going to move under 12(b)(6) to dismiss the action for failure to state a claim. They have never brought that claim.

To this day, there is no pending motion to dismiss for any of the grounds that -- that they have asserted for failure to state a claim, only under 12(b)(1)

And of course, the Rule 12(b) -- the office of Rule 12(b)(1) is very different from the office of Rule 12(b)(6)

12(b)(1) implicates all of the concerns of shoving merits issues into the determination, and for that reason, we think there's no reason to construe this language to have that consequence.

John G. Roberts, Jr.:

Thank you, counsel. Ms. Stestman -- Ms. Stetson, you have a minute.

Catherine E. Stetson:

Ms. Carroll describes this case as a subject matter jurisdiction case like any other.

What this Court has already said in Altmann is that the FSIA is sui generis.

Here, subject matter jurisdiction isn't just about jurisdiction over a class of cases or a type of case.

It's jurisdiction over this sovereign standing in front of the Court.

That is the difference between 12(b)(1) and 12(b)(6)

12(b)(6) requires that court to have taken jurisdiction, to have exercised its power over that sovereign.

Before that happens, it is the sovereign's prerogative to test jurisdiction. In answer, Justice Breyer, to your order -- order of battle question, the sovereign sets the order of battle.

This is -- the only order that this Court needs to give is the one that it already gave, frankly, in Verlinden, which is courts apply the substantive detailed FSIA standards to determine jurisdiction, not just to hypothesize it. The difference between this case and the Tucker Act is that in the Tucker Act, the jurisdiction depends on a claim against the United States.

That's the language that's missing here.

And in both the Tucker Act and in this case, there is, of course, an immediate appeal.

The reason that an immediate appeal is tolerated under Section 1291, that narrow class of cases where that qualifies, is because this right is so important that it cannot be left for later.

That's the difference.

John G. Roberts, Jr.:

Thank you, counsel. The case is submitted.