exceptionally low bell versus hood pleading standard under which a plaintiff's claims will survive dismissal for lack of subject matter jurisdiction as long as they are not wholly insubstantial or frivolous has no application in a foreign sovereign immunity that case subject matter jurisdiction be speaks the court's power to decide the case and before it could court in the united states may exercise that power over a foreign sovereign it needs to decide that that sovereign is not entitled to immunity decide comes from section sixteen zero two of title twenty eight that phrase not entitled to immunity comes from section thirteen thirty what that means in practice is what this court has explained and for linda which is that a court presented with a foreign sovereign immunity that claim against a sovereign must decide at the threshold of the litigation must satisfy itself that jurisdiction exists i take it there will be instances it could conceivably happen your honor it generally does not happen for a couple reasons the first is that immunity is unless it is pressed by the sovereign at the beginning it's considered to be waived so in circumstances where a sovereign for example doesn't raise a factual challenge my hypothetical that is raised the judge rules against that and a specially in a case like this where there is a i think a foreign subsidiary that incorporated and domestic mystically in venezuela there might be questions of the extent of overlapping management and so forth it seems to me that that might if there's an initial finding of no immunity the judge might in the circuit here concluded that because there might not be immunity what it said was at this stage of the litigation it was permitting the claims against the sovereign to go forward that would you have described sounds to me like  subject matter jurisdiction pursuant to the f s a what the court is required to do then is to turn to what this court has described as all of those substantive detailed federal standards that are essentially baked into the jurisdictional statute itself so for purposes of establishing jurisdiction in f s i a case you certainly would bring in we did bring that motion under section twelve b one but what you do then is not just to apply this loose spell versus what standard what you do is you apply  relevant substantive federal standards that are included in those jurisdictional provisions now and how do you how would that differ from a twelve inquiry it differs in a number of different respects most importantly procedurally with respect to a twelve example to absolute immunity a category of absolute immunity for government official or qualified immunity for government official was are also immunities from suit and therefore under the collateral order doctrine the adverse ruling could be appealed true that true that in as much as the munity is at stake 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 entitle to the sovereign is untitled take an immediate appeal it should be tested with something other than bell the hood standard but more because you could test that you could determine jurisdiction under the bell the hood standard and then you can move to dismiss the complaint under twelve b sex and if you're on successful you could take an appeal on the collateral water doctrine why doesn't that serve their interests just as well without producing some of the unfortunate arguably unfortunate collateral consequences of labeling this as jurisdictional among which is the fact that the court would have to decide all sorts of questions even if they are not contested by the parties so two responses you the legal predicates into question what is the basis for that you may waive immunity but is there a statutory provision that supports what you just said yes section thirteen thirty and what does that say it says that a court must decide whether  seems right the question is whether a sovereign is entitle to immunity and i guess i would ask you to look at the statute and to try to explain to me you are reading the language in the statute so the statute says a foreign state sh not be emea in any case in which rights and property taken in violation of internet tional laws 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  is whether the rights and property in fact have been taken rather than whether they're in dispute justice kagan i think the i think the answer has to do with that phrase are in issue that you're 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 d c circuit below with respect to the parent company who's a plaintiff in this case that parent company possesses no right the right is not an issue if no right to what is left to be an issue if you've already decided that  and property and that has been to it and that it has been taken in violation of international law with respect to a claim against a sovereign under that particular expropriation provision depending on the nature of the claim if it's grounded in a common law claim there could be other defenses that could be raised but if it's grounded as this one was which curiously just tracks the language of the jurisdictional statute a taking in violation of international law it is conceivable if you test kind of the very end of that hypothetical that you could imagine a circumstance where the merits get bound up in the jurisdictional inquiry the problem with the respondents position on that though is this court has already explained that that is ok i guess i'm just i'm just messin what maybe i'm just missing it but this it seems there's a funny way of writing this if you're right if you're right congress should just have said well foreign state shall not be immune in any case in which there's a right and property take that that has been taken in violation of international law what is the are in issue doing except to say that the inquiry is whether there is a dispute about whether there is a violation of international law two things the first is for there to be a dispute there has to be a right and it has to have been taken in violation of international law the problem with the respondents reading and you can see this at pages three and again in eighteen and again twenty four of their brief they insert the word claim at issue which of course the statute doesn't doesn't contain when you want it be meaningful to say that when a begins action is filed with jurisdiction predicated on the arising under statute a constitutional right is an issue it would certainly be reasonable to say that in the abstract but here's here's the problem with with engaging too much on i think our in issue we have explained why the right must presently be an issue there must be a right we've also explained why there has to be a taking in violation of international law for purposes of expropriation that is a particularly important phrase the issue with reading a federal jurisdictional statute says this court explained just last term and manning is that we're already for the most part past the point where we are healing too closely to the text we look at the dictates of reason and coherence and judicial this is a curious argument for you to be raising because your prior one of your lead argument is that the t indisputably supports your position as our lead argument certainly depends on the text but my point is that it's just are mainly that much attention to what the text says our text is not our only anchor is my point the anchor is if you get to the point where we are having this intense discussion about in issue and this is actually come up before in the a lot he case there was a colloquy between the majority in the concurrence in the concurring justice said it must be acknowledged that the words in issue don't lend themselves to an interpretation that might be infallible so what you look at is the context from which that decision how does it work with diversity we have a compliant petition or i'm from kentucky pl defendant is from illinois ok filed response hey i'm not from illinois i'm from kentucky to aren't how does the judge what is the judge the judge in a diversity case will look outside the planing and that particular instance take evidence as to whether william bennett is or is not from i'm sorry when when at the beginning at the jurisdictional stage to determine if there is jurisdiction correct and you're saying that should be the same here saying that it should be the same here both with respect to the claim that we're bringing right now which is to the legal sufficiency of the complaint did that parent company have a right was that venezuelan subsidiaries company right taken in violation of international law that sufficien of the pleading jurisdictional challenges quintessentially a response to justice prior suggests that it's not only a question of legal sufficiency and i think that the government specifically says this in its brief that you would also have a factual any factual disputes addressed at that time so if there are factual disputes you know there is there's a pleading it's it is legally sufficient but a defendant can come in and say well it might be legally sufficient but the facts are just wrong and you would have that at the jurisdictional stage two is that right we would indeed and in fact the way that this particular set of circumstances came about the parties agreed that in order to avoid what might not be necessary which was jurisdictional discovery around it because it it seems to me it's really about a practical matter and the practical matter is when should the judge in this kind of case decide whether or not there really is a claim here a legitimate claim they can win on that falls within the category rather like the versity and the answer is if it's a foreign country and sovereignty is that issue do it as soon as you can in an ordinary case but if you have something special maybe you can't judge you run your own trial but keep that in mind we don't want to have foreign countries in our court when there isn't really a pretty good case against them and maybe a winning case so decide this thing quickly decided up front but to start talking about jurisdiction these things i can't really understand as well as a sort of justice ginsburg or who taught jurisdiction and i mean why are we in this why don't we just give them that practical advice i think that the reason that the practical advice might not be enough is is another response to a question that justice alito posed to me earlier which is for purposes of the f s a there is a significant difference between a court exercising its power over a foreign sovereign which is the nature of subject matter jurisdiction and deciding whether it can exercise that power or to one source and if so to decide whether it has jurisdiction it doesn't deed so for purposes of this that means that the foreign sovereign can present itself to the court and can challenge whether it's on the sufficiency of the pleadings or on the facts can challenge the basis for that jurisdiction and yes there will be circumstances where a sovereign comes in and makes legal challenges such as we have made here and factual challenges such as might be was a little bit like an effort that we can exercise to me for the following reason it appears to me and you're going to have to correct me if i'm wrong that on the legal question the sufficiency of the complaint that the district court said and the court of appeals approved the finding that there was a sufficient allegations of of state a claim so i don't think that that ruling depended on facts it depended on a legal conclusion just is sort of our that that is correct in this respect we decided along with the respondents that we would back to any factual challenges to jurisdiction so for example that a typical factual challenge would be  attempted to sue me and u s court i don't have a commercial nexus with the us these challenges though and you can see this best in the d c circuit panel opinion these challenges are challenges of law to the sufficiency of the pleadings does a parent company have a right in its subsidiaries property that it can allege here does a subsidiary of venezuelan company have a property that was taken in violation of international law what the d c circuit concluded in those circumstances and what the words that used the joint appendix one eighty three were at this stage those pleadings were passable to get past the jury i'm sorry and what more do you want meaning it seems as if you are asking us for an advisory opinion of what the court's next step should be with respect to what issues of discovery it should have on other legal issues not on this one because it's already ruled that this complaint is sufficient as a matter of law that this parent under international law i'm not even questioning whether it's right or wrong i know you say it's wrong and there's a serious issue of whether it's right or wrong but are you asking us for an advisory opinion as to what the next steps are for the court below knows what you have been granted certain legal question i agree with that just a sort of my or i'm not asking for an advisory opinion at all in fact what you just said about not being sure whether it's right or wrong that the parent company has a right that's the problem the problem is that when you are talking about jurisdiction in an f s i a case you can't just decide that the plaintiffs might have stated a jurisdictional predicate you have to whether decide there's that right actually exist denver linda which is that you look at these substantive jurisdictional standards that are in the f s a and you decide whether or not they have been satisfied not whether they may be satisfied which is the bell versus hold frivolousness d c circuit standard but whether they have been satisfied was there a rate right was it taken in violation of international law that is the difference between hypothesizing jurisdiction and actually deciding it like to reserve my cot time if i could chief justice and please the court i'd like to start by talking about the way that we read the text of this provision because i think it's a little bit different in the way that petitioners read it but not in a way that changes the bottom line in this case so the statute says rights and property taken in violation of international law are in issue what has to be an issue there are rights in property and as we know from this court's decision and permanent mission that means that at the jurisdictional stage you have to figure out whether the kind of right that's being asserted falls within the federal law definition of rights and property within the f s a and it's taken in violation of international law and that's also a predicate for what's an issue is that right i don't think that an issue actually applies to taken in violation of international law i think that taken in violation international law is describing and defining the kind of property that you have to be talking about in this case well i guess the question is what's left to be an issue if you are right that the question of whether there is a right and property is decided at the jurisdictional stage both law and fact and if you are right that the question of whether that right and property has been taken in violation of international law is also decided both law and fact at the jurisdictional stage then what is the issue the in issue that's left for the merits so i disagree with part of what you said i do think that the question of whether property was taken in violation of international law is something that does have to be decided at the jurisdictional stage in law where there's a challenge like there is here or in fact if there is a factual challenge but with respect to and property those can be an issue so i don't think you need to decide at the jurisdictional stage whether or not the plaintiff actually possesses the right that they claim and so for instance if you had a plaintiff who came in and said i have a deed to this property and it was taken away from me and the foreign state wanted to come back and say no you don't this deed is a forgery you never had any relationship to this property at all that would be in issue and that would be something that could be decided at the merits the rights and property question has to be decided at the jurisdictional stage is the one that this court decided mission which is is this right it's being asserted here something that falls within the definition of rights and property that the f s a put forward and so impermanent mission the question was is this a sort of lean right or right to property even though it's not a right to possession of the property or to ownership of the property  understanding the distinction could could you think in this case what would be the first question that would be the threshold question as to a right of property and what would be the question that would get diverted to the merits stage in this case i think the question mainly is the question about whether it is what's being asserted is a right in property here it's a question of whether shareholders rights in the company that they own shares in are something that are rights in the property of that subsidiary company that the company that the shareholder has some corporate ownership interest in and that is a legal question that could be answered at the jurisdictional stage and here we don't know the answer to that question because all the what's the question that would be answered at the merit stage a question that would be answered the message here i don't think there actually would be much dispute on the merits but for instance in a case like this you could have a dispute about whether the plaintiff was actually a shareholder or was not a shareholder or as in the example i gave before which i think would be the more common situation whether the person actually had a deed to that property property or whether they didn't have it in the thing that we're going to write in this case it isn't going to get everybody good in mixed up because it reminds me of the case we set a kind of order of battle as first you have to decide the jurisdiction and you decide this and then and i've never received so much criticism from the district judges as for that case well i'm going to they tell us that cases differ a lot one from the other let us do it's practical in the circumstance there are three kinds of issues that can come up there's a set of facts might be in dispute if you find one way there is the jurisdiction but on the other when there isn't there is a second kind of issue that we take the facts as given do they in fact fall within the definition of the statute and that can even exist in a diversity case somebody is from guam or somebody you know that's a kind of doesn't really fall within or is it just possible that it's falls within federal law and rising under diversity or this and then there is the third kind of case is are you so far out that it isn't even hopeful that you could get into the court on this now if you take the third which is where we are you leave it up to the district judge to decide the of the to when and if it's most suitable in the case if you don't i'm worried in that circumstance you are asserting jurisdiction over a foreign state based on a not a non frivolous allegation and that is something that doesn't respect the foreign state as you special context in which there is a real dignitary harm to the foreign state if the courts of another country sit in judgment as to something that weren't so it's not often merely how well how often is that a serious concern i mean i understand that the reason you're concerned is that you don't want reciprocal burden imposed on the united states when it's in the court in a foreign country but is it really make a difference to a foreign sovereign whether it litigates these issues under twelve b one as opposed to twelve b six it does make a difference to foreign sovereign for the reason that i gave it makes a difference to the united states when we are seated in other courts whether there is a dispute at the jurisdictional stage and well wait i'm going to leave why is that why is that such a significant issue well as i say there is something that is a real can't believe it makes a difference when the ambassador from whatever country calls home and says well i've got bad news we're being sued in federal court but don't worry it's only under twelve b one not twelve b six it does make a difference and i think it's particularly sensitive with respect to the expropriation exception actually and that's why taking in violation international law is such a critical threshold issue that has to be decided at the jurisdictional i'm sorry conversion well i do think it's an important point that here the underlying cause of action could be conversion if someone brought that kind of cause of action which wouldn't overlap exactly with the jurisdictional determination here you would still have to allege the jurisdictional prerequisites were  different because it's preparation is different because this is a public act of a foreign sovereign taken to its own territory with respect to property in its own territory and that is something that in the normal course is going to be a matter for the courts in that territory to resolve the very thing that makes it appropriate for the courts of another country to sit in judgment on that kind of act is that there has been a violation of international law and then you look at the nexus requirements in the expropriation exception and those show that there are the property has some connection to the united states which makes it appropriate for united states courts to sit in judgment and they're actually have been real problems real sensitivities real foreign relations concerns that have been raised in this area stemming from the circuit's two thousand and eight decision in the case which is where the d c circuit first announced the rule that we're considering here that's an expropriation case against russia the d c circuit cited there was a non frivolous allegation that the property had been taken in violation of international law at that point russia feeling that it was immune and it hadn't gotten a full determination of its immunity drop out of the case and the district court started imposing sanctions of fifty thousand dollars a day in response russia initiated an expropriation action against us in moscow and started imposing fifty thousand dollars to sanctions on the united states so that could have something like that could conceivably happen even under the standard that we're talking about that a foreign state could take offense but this is a very sensitive issue let's and there are real concerns here distinction in in the  that is the reason why the taking in violation international law the words in issue don't apply to that it doesn't say whether it is in issue that the property was taken in violation international law here in washington is one can you read the position i don't know that i can specify the day but i think it has always been the government's position and the state department's position that the actual quire ments of the exceptions to immunity need to be satisfied at the threshold as this court said in berlin than otherwise the grant of immunity becomes much less meaningful to the foreign state i'm sorry are you arguing what's important the twelve b six no i don't see sander or are you in agreement with the petitioner that all of factual disputes have to be decided you seem to be saying no to the second the factual disputes with respect to whether the property has been taken in violation exact law if there are any and if the foreign state chooses to raise those factual disputes need to be decided so that you can figure out whether you have the right kind of property in the case thank you counsel mr chief justice and may it please the court the jurisdictional tast under the expropriation exception turns on what is quote in issue in the suit in other words what is the dispute about that language contrast starkly with language that congress used in an analogous provision of the f s a section sixteen ten eighty three and justice kagan this goes to your earlier discussion regarding the meaning of in issue section sixteen ten eighty three which is reprinted at page twenty eight of the agendum to the blue brief section sixteen ten is the section that governs immunity from attachment and execution and it includes a provision for expropriation cases that language says there's immunity there's an exception to immunity where there's been a judgment quote stablish ing that rights and property quote has been taken in violation of international law so when congress outset that's a question of the execution of the judgment that's already been but if but if the point of this is the issue we're talking about here is sort of the commencement of litigation that's correct and congress used very different language in sixteen zero five eighty three are  why all of the court's body of jurisprudence on what does it mean for a court to have jurisdiction over a particular subject matter are relevant here in this case to be sure there are some kinds of jurisdictional increase such as citizenship of the parties in a diversity case for example where the facts have to be established at the outset a use and for the commercial nexus exactly a commercial nexus or what is the difference the difference here is that other kinds of jurisdictional provisions don't require the establishment of a fact they simply require that the plaintiff has asserted a particular type of claim we think the language in other words you're saying the commercial nexus language you have to establish the decide whether there might or might not be immunity we don't think that's correct and that's not the position we've asserted the court certainly does must assure itself at the outset that an exception applies the question is what is the standard that defines the sign and the other the other statutes you're talking about in the ones set forth in your read brief just seem to me to avoid the question which is whether there's a different approach in foreign sovereign immunity our embassadors have to go to these other countries and say we're their masters you're being sued you have to come into our courts even though you're a sovereign and we don't want you dragging us into your courts but you have to come and our courts because someone has raised a claim that is not wholly insubstantial or frivolous that's a very low standard in that context mr chief justice the petitioners and the government have cited no other sovereign immunity context in which the standard they're proposing applies to the contrary as we noted in our brief in suits under is the applicable standard the petitioner cited land the dollar in their reply brief just two years after that decision in the larsen case this court held that you're talking about the united states sovereign immunity that  exactly where the court held that bell be heard was the applicable standard so the question is why in this one particular area alone would congress have written a standard that departs from how jurisdictional inquiries are determined in every other cont because of the many trial that it requires at the outset on the question whether this sovereign has violated international law under their view if as is the case here the defendants are asserting other merits space legal defenses to the claim for example a defense under the act of state doctrine the court cannot get to those defenses until it has decided whether there's been a taking in violation of international law the implications of that our i think speak for themselves when a court has to say first i have to decide has there been a taking in violation of international law i think yes this sovereign has violated international law now i have jurisdiction to consider whether under the of state doctrine it's not appropriate for me to inquire into the validity of the foreign sovereigns actions that makes no sense under our view and under the application of well the hood in any other jurisdictional context th i'm sorry why does that make no sense i mean you establish jurisdiction and there's an additional defense other than that there's no jurisdiction i don't well from up from the perspective of protecting the dignity and comedy of the foreign sovereign that has taken us on property in violation of international law to say that that the first decision a court must make is to label the defendant if the claim holds up a violator of international law before it can consider any other defenses that might not require that determination i think is not consonant with a view that protects the dignity of the sovereign defends it so i have a good deal of sympathy  with the with the way you read the language but it does seem to me that it gets you into one big problem so you know take a case where there is an arguable claim that there's a been a violation of international law so you would satisfy the bill the hood standard but then the actual claim that's being made is just a straight conversion claim so you've you've got into the merits but in the merits stage all you're talking about is this conversion cla and so you could be adjudicated guilty even though nobody has decided in fact whether you violated international law and that seems as though it cannot be right well i think it probably can't be right but the reason that it's not right has nothing to do with whether bell applies under our view of the statute congress and the executive were reacting to a very specific set of problems and they adopted a very specific solution they were looking at the cuban expropriations and other notorious that were affecting u s interests or sovereigns were using those expropriations to gain an unfair advantage in the commercial marketplace and they wrote a statute that said we want the courthouse doors to be open to those kinds of claims a claim of a taking in violation of international but i'm sorry a suit that does not actually press a claim of seeking a remedy for a taking in violation of international law we think should not be brought under this statute this is not the to exception i see so you think that's necessarily a merits issue we do where as i understand the petitioners on the government's position to be that this is simply a jurisdictional fact so long as the plaintiffs can show that this property was taken at some point by someone from someone in violation of international law that opens the door to any kind of claim at all so long as it's somehow implicit i don't know that that's a different issue other than that supposing the diversity case a says i'm from kentucky b says and he says b from illinois follows an answer no i'm from kentucky no diversity doesn't the judge normally make that determination right then and there yes with what then why should he be any different here because this is not a jurisdictional fact like the citizenship of the parties it was so i mean what the reason that you do make that right at the beginning i was thought was not a mystical thing if you don't want to haul somebody cross the country in different places when there isn't even diversity jurisdiction here the reasoning isn't quite the same they say try it out at the beginning whether there is at least a claim here really claim that they did seize the violation they did seize the property violation international law that way we don't bring  some place all the way over the united states and cause all kinds of problems without their really being something so do it at the beginning judge don't wait till the end of the case just prior will twelve b six exists for precisely that purpose and nothing would have prevented these defendants from earlier which is the implications of taking merits issues and calling them jurisdictional and those implications are at least among the following number one the arguments can't be waived missteps and is relying on a version of the waiver doct say can we say that having just say can we say look i guess we couldn't but i don't care whether it's trial be one hundred twelve b six judge what you want to do in such a case is try out right at the beginning of the case if it's at all possible  i think both the state department and your adversary are upset that the court found that there was a viable legal argument that they're upset i respect with it with respect to what the dispute is in that case what their legal challenge is to the parents claim is not about the character of the rights as rights in property the arguments that were made and decided below where the following the defendants contended that the only property that was taken was property belonging to the subsidiary the parent doesn't have standing to assert those rights the parent does have it's own rights for example they own shares in the subsidiary their position was not that those rights are not property rights but that those rights were not taken so there was no dispute about whether those rights at issue are quote unquote property rights the dispute is do these two plaintiffs can they proceed to bring a claim of a violation of international law as a result of the uncompensated discriminatory taking of their property that is a merits question and the court has made clear that in jurisdictional statutes that turn on the nature of the claim rather than a factual showing bellevue hood is the governing standard across those contacts even when sovereign immunity as if related  think you would have to prove that property was taken on the merits property was taken in violation of a customary international law standard or that  which has long recognized that expropriations must be compensated they must be for a public purpose and they cannot be arbitrary and discriminatory those are well established principles of international law  the domestic citizen are argument on that issue is that the venezuelan incorporation of the subsidiary does not bar the clean in a situation where the foreign sovereign itself deemed that subsidiary to be a foreign company treated it that way and took its property on that purpose the court of appeals looked closely at that issue it said the only cases we can find there aren't very many but the ones that are out there support this claim th restatement and other commentary support this claim and petitioners quote have cited no other contrary authority that forecloses the claim they took a close look at it if petitioners wanted to proceed right away to a twelve b six determination they could have chosen to do that instead they decided there's that that's the holding of your honor's opinions for the court and sign ok and we're following up on steel cohen what those cases recognize fundamentally is that determining the legal sufficiency of allegations even forgetting resolving factual jurisdiction in the court's words it's vital to establish jurisdiction first before getting to those issues and if i could go back to justice briar's question i hate to ask you to repeat yourself but if i could understand your understand your view of why it matters  is one twelve b one motions it's not clear whether one can waive defenses and what else so there's the waiver issue which is the sort of the opportunity for the defendants to continually come up with new theories which has occurred in this case when we went back down to the district court on remand from the district court knew what your stiction arguments were made at that time that hadn't been made previously there's the court's obligation to consider issues to a spontaneous this goes to the court subject matter jurisdiction and as the court observed in berlin when there is not been a waiver of sovereign immunity the court must assure itself that one of the other exceptions applies and to do that when there are arguments that have been made by the sovereign or even when there are just doubts in the case of the court must resolve those because it goes to subject matter jurisdiction all of those issues then become the subject potentially of  end up with a system where these issues are raised legal issues going to the merits but the whole ball of wax is now being put into the jurisdictional determination going up and down back and forth between the district court in the circuit i really am not sure how that serves the sovereign's interests when it means that all of that has to be done before we can get to the straightforward legal merits determinations that that the court could decide once it concludes that it has jurisdiction and i suspect it's for that reason that when congress wrote this language even though the bellevue hood standard had been long established far before the f s a was written congress didn't write anything in this statute to suggest we want this one kind of determination and this one determination only to be done in a way that differs from how any other kind of jurisdictional determination of this type is made it always a little difficult for one party to tell the law i'm sure that they don't i'm tempted to say a lot of things in response to that but i think the most straightforward response is that the bellevue hood standard is the one that i think is best addressed to that concern because rather than requiring the full up adjudication of this defendant status as a violator of international law it simply applies the same jurisdictional determinations that apply in suits against the united they came in and said there is no customary international property right of a parent in the subsidiaries property  what discovery would you be entitle to if they took if they brought a twenty six motion so i want to be clear about the discovery necessary under the commercial nexus requirements and the discovery necessary to show a violation of international law when i'm asking a different question what discovery would you see or would you be entitled to half of what disputed issues of fact to determine the legal question what the defendants have never moved under rule twelve i think so i'm not sure what argument specifically they would make if they were making factual arguments if they proposed to the district court which was whether  discovery at all that's why deciding jurisdiction and proceeding to twelve v six i think you know again at risk of saying what's good for the other side i think would serve the comedy interest that's being asserted here as opposed to a situation where let's say you have an expropriation complaint and maybe the facts of the case are that there was a payment of some compensation but the question is whether it was adequate compensation as international law requires and maybe even just on the feast of the pleadings or maybe the defendant puts in a factual dispute on that score what that requires then is that the court has to have essentially a mini trial on what is the valuation of this property what's its going concern value under the discounted cash flow model what was the value of the compensation provided is that adequate all of that has to be decided up jurisdiction only to rule for the plaintiff a court under this position under the their position can never find that it has jurisdiction to issue and merits defense merits decision in the defendant's favor that is an unusual jurisdictional rule and it's not consistent with how congress and the executive branch when they were looking at these sorts of situations and wanting to provide an open door to say we're not opening the court store only two winning claims they're saying there has been a problem of foreign sovereigns taking property for discriminatory reasons or without paying for it using that property to gain advantage in the marketplace and we want the courthouse doors to be open to that there's no indication in the text in the structure or anywhere that says that's supposed to depart from how these decisions are normally made and i want to address the permanent mission case which is golden adverted to where she i think correctly acknowledged that the only issue in that case was the character of the rights in issue as quote unquote property there was no issue in that case about whether the plaintiff's claim had any merit to it the defendants in that case had argued among other things that they weren't obligated to pay the tax and the court said no we don't address the merits questions the court did consider the character of the of the rights asserted as rights in property but because that didn't implicate the merits of the claim the court had no occasion to consider whether bellevue hood applied and as i mentioned earlier there is no similar dispute here in this case because there's not really any dispute about the fact that the parent own shares those are property rights and that the allegation is that the entire value and benefit of that property interest has been completely destroyed by the defendant's conduct so permanent mission simply doesn't speak to any of those any of those fs correctly as a comprehensive substantive regulation of the amenability of foreign sovereigns to suit in u s courts it sets out venue provisions service of process rules limitations on damages rules about attachment of property so on it also imposes substantive provisions requiring a connection between the conduct and the united states that's how the personal jurisdiction elements work and it also in this court's words include provisions quote governing the types of actions for which foreign sovereigns may be sued and held liable in u s courts that's exactly what we think is the right reading of this provision which is it's a provision that says if an expropriation and it's legality under international law are what's an issue that's what the suit is about and if the commercial nexus requirements are met then the court has jurisdiction to decide the case one way or the other and the plaintiff might not win but the court has jurisdiction to decide if it has jurisdiction over the subject matter and that's all that's required for the claims to go forward and if there's a dispute about the commercial nexus that's decided what stage twenty one or twelve we believe that has to be decided at twelve the one because it is a factual requirement just as for example a waiver requirement but it's not unusual to have a jurisdictional provision that combines both of those types of elements the diversity statute is one you know where the citizenship of the parties has to be established and if there's doubt about it or a dispute about it the court must decide at twelve b one but for example  not be fully resolved well that's really all we're talking about here whether the issues set forth in the statute are ones that should be decided at the early stage or not and whether it's there's a commercial nexus you just say well that's just that's part of the so it has to be decided twenty one i don't understand why that answer doesn't apply in this case as well to be clear they are all jurisdictional requirements and they must all be decided up front the question is what is the nature of the requirement in this language about what's in issue is a right and property is a taking in violation of international law in issue that is the type of jurisdictional requirement that is not a factual requirement in the sense of citizenship of the parties it's more like the jurisdictional provisions that this court has considered under the sherman act or the exchange act which grants jurisdiction over violations or the criminal laws which grant jurisdiction over offenses does not or issue of diversity or the issue of commercial nexus overlap with the merits of those claims no they don't and that's another distinction between that kind of jurisdictional requirement the kind of requirement that simply goes to what's what have you put in issue what's the case about if there's a dispute about the shareholder status of the rights and property issue there may be rights and property but we think you only forty nine percent of the shares the plaintiffs say no no they the own fifty one percent so they have a right to property that's a factual dispute that is decided where that is a factual dispute that is part would be part of the merit if if the point of the argument was because of the amount of shares you own which of course is not an issue here because the parent has no knowledge of that father but if the argument is because of the amount of shares you own you don't own enough to be able to succeed and that forty nine percent why isn't that like somebody coming in and saying i'm not a citizen of kentucky because the statute doesn't say you must show that you have rights and property it says that you must show that rights and property area an issue in this what's the suit about it's by the plaintiff that their rights and property were taken in violation of international law the argument that petitioners made as are making now is not a new one it's an argument that was made to this court in the binder up case under the sherman act in the one nine hundred twenty s it's an argument that was made to this court in belleview hood in the one nine hundred forty s it's the same argument justice ginsburg that's been made in the whole steel cold line of cases and consistently the court has recognized that jurisdiction is vital right and nothing would have stopped them from doing that and then i will accept that a lot of district judges don't like moving under twenty six right away they'd like to have further development before they're before they decide whether there's a klber not i i'm i can't say that that's been and issue in this case where there's been a fair amount of agreement among the parties in the courts as to what order the issue should be decided in the petitions here have asserted a challenge a factual challenge to that actually we've shifted ownership and control of the property to some other pay to base and city and that entity doesn't engage in commercial activity in the united states and so therefore there is no jurisdiction and as a matter of fairness of course we're entitled to examine 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 twelve mystics to dismiss the action for failure say to claim they have never brought that claim to this day there is no pending motion to dismiss for any of the guy that that they have asserted it for failure to state a claim only under twelve b one and of course the rule twelve b the office of rule twelve b one is very different from the office of rule twelve b six twelve b one 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 thank you council estates you have a minute miss carroll describes this case as a subject matter jurisdiction case like any other what this court has already said and altman is that the f s a is sui generis here subject matter jurisdiction isn't just about jurisdiction over a class of cases or a type of case its jurisdiction over this sovereign standing in front of the court that is the difference between twelve b one and twelve b six twelve b six requires that courts have taken jurisdiction to have exercised its power over that sovereign before that happens it is the sovereigns parag to have to test jurisdiction and answer justice prior to your 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 for linden which is courts apply the substantive detailed f s a standards to determine jurisdiction not just to hypothesize that the difference between this case and the  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 twelve ninety one 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 thank you counsel the case was submitted