Venezuela v. Helmerich & Payne International Drilling Company Page 2

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

Catherine E. Stetson:

With respect to a 12(b)(6) inquiry, of course a sovereign who loses a 12(b)(6) challenge wouldn't be entitled to the immediate interlocutory appeal.

Ruth Bader Ginsburg:

I was --

Samuel A. Alito, Jr.:

I don't -- I don't quite understand that.

Why would that not be so? If this immunity is analogous, for example, to absolute -- a category of absolute immunity for a government official or qualified immunity for a government official, those are also immunities from suit; and therefore, under the collateral-order doctrine, an adverse ruling could be appealed.

Catherine E. Stetson:

True, but -- true, but -- inasmuch as immunity is at stake, it -- it could be appealed.

But in a way, that proves our point rather than the converse, which is if a right is so important that it is entitled to -- the sovereign is entitled to take an immediate appeal, it should be tested with something other than the Bell v Hood standard. But more on point --

Samuel A. Alito, Jr.:

Well, no.

Because you could test -- you could determine jurisdiction under the Bell v. Hood standard, and then you can move to dismiss the complaint under 12(b)(6)

And if you're unsuccessful, you could take appeal under the collateral-order doctrine.

Why doesn't that serve interest just as well, without producing some of the unfortunate -- arguably unfortunate collateral consequences of labeling this as jurisdictional, among which is the fact that this Court would have to decide all sorts of questions even if they are not contested by the parties?

Catherine E. Stetson:

So two responses, Your Honor. The first is, with respect to that last point, the questions that the Court has to decide are the questions that the sovereign asks it to decide.

It is the sovereign's prerogative in an FSIA case to call either the factual or the legal predicates into question.

Samuel A. Alito, Jr.:

But what is the basis for that? They're just -- you may waive immunity, but is there a statutory provision that supports what you just said?

Catherine E. Stetson:

Yes.

Section 1330.

Samuel A. Alito, Jr.:

And what does it say?

Catherine E. Stetson:

It says that a court must decide whether the sovereign is not entitled to immunity before jurisdiction can lie.

And that's one of the curious things about this --

Ruth Bader Ginsburg:

Wait.

Where does it say that in the text of the statute?

Catherine E. Stetson:

In the last provision of Section 1330A, that place.

Elena Kagan:

Well, the section -- I mean, the question here is -- that seems right.

The question is whether a sovereign is entitled to immunity, and I guess I -- I would ask you to look at the statute, and to try to explain to me your reading of the language in the statute.

So the statute says "a foreign state shall not be immune... in any case... in which rights in property taken in violation of international law are in issue." Right? Now, it seems to me that you are reading this statute as if it said that a foreign state shall not be immune in any case in which rights and property have been taken in violation of international law.

In other words, you're taking out the "are in issue" language and suggesting that the question at the threshold is -- is -- is whether the rights and property, in fact, have been taken, rather than whether they are in dispute.

Catherine E. Stetson:

Justice Kagan, I think the -- I think the answer has to do with that phrase "are in issue" that you've focused on.

For a right to be in issue, it actually has to be a right.

And as we were explaining to the district court in the D.C. Circuit below, with respect to the parent company who is the plaintiff in this case, that parent company possesses no right.

The right is not in issue if your right exists.

Elena Kagan:

Well, what -- what is left to be in issue, if you've already decided that there is a right on property and it has -- and that it has been taken in violation of international law?