United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 17, 2023 Decided June 11, 2024

No. 22-7118

EIG ENERGY FUND XIV, L.P., ET AL.,

APPELLEES

v.

PETROLEO BRASILEIRO, S.A.,

APPELLANT

ODEBRECHT, S.A., ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-00333)

Sean Marotta argued the cause for appellant. With him on 

the briefs were N. Thomas Connally, Christopher T. Pickens, 

and Patrick C. Valencia.

Daniel B. Goldman argued the cause for appellees. With 

him on the brief were Kerri Ann Law, Claudia Pak, and 

Matthew M. Madden. 

Before: HENDERSON, WILKINS and KATSAS, Circuit 

Judges.
2

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: EIG, an 

American investment fund, lost $221 million after it invested 

in a project to exploit newly discovered oil reserves off the 

coast of Brazil. The company behind the project was Petróleo

Brasileiro, S.A. (Petrobras), Brazil’s state-owned oil company. 

A criminal investigation eventually discovered that Petrobras

executives were taking bribes from contractors and splitting the 

proceeds amongst themselves and Brazilian politicians. When 

the corruption came to light, the project’s lenders pulled out. 

The project collapsed and EIG’s investment became worthless.

The issue before us is whether EIG can continue its lawsuit 

against Petrobras or whether Petrobras is immune from liability

under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 

§§ 1330, 1602-1611. We held earlier that EIG had sufficiently 

alleged that Petrobras’ fraud “cause[d] a direct effect in the 

United States” and therefore fell within the direct-effect 

exception to the FSIA. Accordingly, we affirmed the denial of 

Petrobras’ motion to dismiss. See EIG Energy Fund XIV, L.P. 

v. Petróleo Brasileiro, S.A. (EIG II), 894 F.3d 339 (D.C. Cir. 

2018). Now, after discovery, we reach the same conclusion on 

the summary judgment record. We therefore affirm the district 

court’s denial of Petrobras’ assertion of foreign sovereign 

immunity at this stage and remand for further proceedings.

I. Background

Both parties accept the district court’s findings of 

undisputed facts for this interlocutory appeal. We draw the 

following description from the district court order, repeating 

only the essentials of its thorough account.

In 2007, Petrobras, an oil and gas company owned by the 

Brazilian government, discovered vast oil reserves in the Pre-
3

Salt Reserves off the Brazilian coast. EIG Energy Fund XIV, 

L.P. v. Petróleo Brasileiro S.A. (EIG III), 621 F. Supp. 3d 30, 

39–41 (D.D.C. 2022). It planned to exploit the reserves by 

building twenty-eight drilling rigs at a total cost of roughly $22 

billion. Id. at 41–42. To do so, Petrobras contracted with 

Brazilian shipyards to build the rigs “through a financial 

structure sponsored by Petrobras” and open to outside 

investors. Id. at 42. It hired Banco Santander Brasil S.A. 

(Santander) as its financial advisor to secure financing. Id.

That “financial structure” took the form of Sete Brasil 

Participações (Sete), an entity Petrobras formed in December 

2010 to raise money and contract with shipyards for the 

necessary construction. Id. Petrobras held 10 per cent of Sete’s 

shares and equity investors held the remaining 90 per cent. Id. 

Notably, Petrobras filled Sete with its own executives. Sete’s 

new CEO, João Carlos de Medeiros Ferraz (Ferraz), was a 

Petrobras veteran who had served since 2008 as Petrobras’ 

General Manager of Special Projects Financing, in which 

capacity he was responsible to develop the plan to exploit the 

Pre-Salt Reserves and “negotiat[e] with all potential capital 

investors in Sete Brasil.” Id. at 40. As Sete’s COO, Petrobras 

appointed Pedro José Barusco Filho (Barusco), Petrobras’ 

long-time Executive Manager of Engineering. Id. at 40, 42. 

Both Ferraz and Barusco worked for Petrobras and Sete 

simultaneously for several months until Sete’s shareholders 

officially approved their positions. Id. at 42, 51.

“[F]rom Sete’s formative stages,” Petrobras and Sete 

sought international investors for Sete, including investors

based in the United States. Id. at 47. In 2010, for example,

Santander drew up a list of potential investors which named 

certain U.S. companies and Petrobras kept a map of the United 

States “showing the locations of fifteen potential U.S. 

investors.” Id. at 48. Petrobras also participated in two 
4

conferences held in Brazil in 2010 and 2011, at which it pitched 

the opportunity to invest in Sete. Both conferences were hosted 

by a U.S. company and potential U.S. investors attended. Id. at 

48–49.

EIG learned about Sete on its own, however, when Kevin 

Corrigan (Corrigan), an EIG senior investment professional, 

received an email in 2010 about Sete from a professional

colleague who was unaffiliated with Petrobras. Id. at 43. At the 

time, EIG was “seeking opportunities to invest in Brazil.” Id. 

By October 2010, EIG was in contact with Santander, which 

sent Corrigan a Petrobras presentation about the Pre-Salt 

Reserves that touted the opportunity to “partner[] with 

Petrobras.” Id. at 50–51. That December, Santander gave EIG 

access to a virtual data room “that contained detailed 

information about the Sete investment opportunity.” Id. at 51. 

EIG used the data room to conduct a “months-long diligence 

process” regarding investing in Sete, which process involved 

analyzing thousands of pages of documents. Id. at 71.

EIG also met with Petrobras and Sete executives several 

times. Ferraz hosted Corrigan in Brazil in March 2011 to 

discuss investing in Sete. Id. at 51. A few months later, EIG 

executives returned to Brazil to meet with Ferraz (now the 

confirmed CEO of Sete) and Almir Barbassa, Petrobras’ CFO 

and Chief Investor Relations Officer. Id. EIG representatives 

met with Barbassa in Brazil again in March 2012 and toured

one of the shipyards slated to build the drilling rigs. Id.

EIG ultimately chose to invest in Sete. It entered into a 

series of investment agreements, including in June 2011 and 

July 2012, and made its first payment on August 3, 2012. Id. at 

43. Its investments, which continued until January 2015, 

totaled roughly $221 million. Id. at 44. EIG’s investment did 

not prove fruitful. Unbeknownst to it, Petrobras and Sete
5

executives were engaged in rampant corruption that ultimately 

led to Sete’s collapse. These executives, including Ferraz and 

Barusco, solicited bribes from shipyards in return for drilling 

rig construction contracts and then split part of the graft 

amongst themselves while passing the rest on to members of 

the Workers’ Party, Brazil’s governing political party. Id. at 38. 

A Brazilian criminal investigation called Operation Lava Jato 

(Operation Car Wash) uncovered the corruption in 2014 as Sete 

was attempting to secure long-term financing deals so that it 

could meet its obligations to the shipyards. Id. at 38, 44–45. 

The February 2015 public disclosure of Sete’s involvement in 

the scheme caused the lenders to pull out. Unable to meet its 

obligations or to obtain credit, Sete became bankrupt. Id. at 38, 

45. “EIG’s entire investment in Sete was lost.” Id. at 45.

In 2016, EIG sued Petrobras for fraud, among other 

delicts. Petrobras moved to dismiss, arguing it was entitled to 

foreign sovereign immunity as an instrumentality of the state 

of Brazil. The district court denied the motion. See EIG Energy 

Fund XIV, L.P. v. Petróleo Brasileiro S.A., 246 F. Supp. 3d 52, 

73 (D.D.C. 2017). In EIG II, we affirmed the district court’s 

denial on interlocutory appeal, holding that EIG’s allegations 

brought the case within the FSIA’s exception to sovereign 

immunity for defendants whose commercial activity “causes a 

direct effect in the United States.” 28 U.S.C. § 1605(a)(2); see 

EIG II, 894 F.3d at 345. Specifically, we reasoned that EIG had 

“made out a prima facie case for jurisdiction by alleging that 

Petrobras specifically targeted U.S. investors for Sete; that 

Petrobras intentionally concealed the ongoing fraud at 

Petrobras and at Sete; and that money invested in Sete was used 

to pay bribes and kickbacks.” Id. (internal citations omitted).

On remand from EIG II, the parties conducted discovery 

and cross-moved for summary judgment on liability; Petrobras 

also moved for summary judgment on immunity grounds. The
6

district court again rejected Petrobras’ assertion of sovereign 

immunity, reasoning that EIG had met its burden of production 

“by adducing facts, supported by proof, satisfying the three 

elements of the prima facie case set forth in EIG II.” EIG III, 

621 F. Supp. 3d at 47. As relevant here, the court found that 

there was “ample evidence showing that Petrobras ‘specifically 

targeted U.S. investors for Sete.’” Id. (quoting EIG II, 894 F.3d 

at 342). After reviewing the evidence, it concluded that 

Petrobras had “targeted” EIG because “Petrobras engaged with 

EIG in a sustained course of dealing over many months that 

conveyed its desire to obtain an investment from EIG.” Id. at 

51. The court then granted summary judgment to EIG on 

liability but reserved the damages issue for trial. Thus, the court 

denied Petrobras’ summary judgment motion and granted EIG

partial summary judgment.

Petrobras appealed the denial of its sovereign immunity

assertion. EIG moved to dismiss the appeal, which a motions 

panel referred to us. Order, EIG Energy Fund XIV, L.P. v. 

Petróleo Brasileiro, S.A., No. 22-7118 (December 27, 2022).

II. Analysis

A. Jurisdiction

We first address EIG’s threshold challenge to our appellate 

jurisdiction. In re Brewer, 863 F.3d 861, 868 (D.C. Cir. 2017). 

Our appellate jurisdiction extends only to the “final decisions 

of the district courts.” 28 U.S.C. § 1291. These decisions

include not only final judgments but also collateral orders, “a 

small class of decisions that conclusively determine the 

disputed question, resolve an important issue completely 

separate from the merits of the action, and are effectively 

unreviewable on appeal from a final judgment.” Citizens for 

Resp. & Ethics in Wash. v. Dep’t of Homeland Sec., 532 F.3d 

860, 864 (D.C. Cir. 2008) (cleaned up). The denial of a foreign 
7

sovereign’s assertion of sovereign immunity ordinarily

qualifies as a collateral order. See Jungquist v. Sheikh Sultan 

Bin Khalifa Al Nahyan, 115 F.3d 1020, 1025 (D.C. Cir. 1997).

EIG contends that treating the district court’s immunity 

ruling as a collateral order contravenes the Supreme Court’s 

instruction in Johnson v. Jones that interlocutory appeals 

should decide only “issues of law.” 515 U.S. 304, 317 (1995).

By contrast, cases involving “fact-related dispute[s],” 

including “which facts a party may, or may not, be able to 

prove at trial,” id. at 307, 313, are inappropriate for 

interlocutory review because those issues are “not truly 

‘separable’ from the plaintiff’s claim,” Behrens v. Pelletier, 

516 U.S. 299, 313 (1996). EIG argues that EIG II already 

settled the relevant issue of law and thus this appeal centers on 

the fact-bound issue of whether the district court correctly 

found that Petrobras “targeted” U.S. investors. This, EIG says, 

is precisely the type of “evidence sufficiency” determination 

that does not constitute a collateral order. See Johnson, 515 

U.S. at 313.

EIG overreads Johnson. As the Court later clarified, 

“Johnson held, simply, that determinations of evidentiary 

sufficiency at summary judgment are not immediately 

appealable merely because they happen to arise in a qualifiedimmunity case.” Behrens, 516 U.S. at 313; see also Ortiz v. 

Jordan, 562 U.S. 180, 188 (2011) (“[I]nstant appeal is not 

available, Johnson held, when the district court determines that 

factual issues genuinely in dispute preclude summary 

adjudication.”). But Petrobras does not dispute the district 

court’s factual determinations; instead, it disagrees with the 

district court’s view of the legal significance of those facts. An 

interlocutory appeal does not fall afoul of Johnson merely 

because it “require[s] the court to apply law to facts.” See 

Jungquist, 115 F.3d at 1026. On the contrary, the Supreme 
8

Court has made clear that “Johnson permits” a defendant “to 

claim on appeal that all of the conduct which the District Court 

deemed sufficiently supported for purposes of summary 

judgment” nevertheless does not overcome the defendant’s 

assertion of immunity. Behrens, 516 U.S. at 313; see also 

Johnson, 515 U.S. at 319 (Whether “a given set of facts violates 

clearly established law” is a “reviewable determination.”). We

remain free under Johnson to exercise appellate jurisdiction to 

determine whether Petrobras is entitled to sovereign immunity 

as a matter of law given the facts as determined by the district 

court. See Farmer v. Moritsugu, 163 F.3d 610, 614 (D.C. Cir. 

1998).1

B. Merits

The merits issue before us is whether the district court 

properly denied Petrobras’ summary judgment motion on

sovereign immunity, an issue we review de novo. See Price v. 

1 Our Oscarson precedent does not help EIG’s position. 

Oscarson v. Off. of Senate Sergeant at Arms, 550 F.3d 1 (D.C. Cir. 

2008). There, as EIG emphasizes, the facts were not in dispute but 

we nevertheless found that we lacked jurisdiction under Johnson. See 

id. at 5–6. The critical distinction is that Oscarson involved “factrich legal issues” that were “difficult to separate from the merits of 

the underlying action.” Id. at 5; see also id. (the appeal “mingl[ed]” 

the “preliminary and merits issues”). Although an interlocutory 

appeal often requires the court to apply law to facts, “jurisdiction 

may be denied . . . if the court concludes that the facts are too blurred 

to support review on the law.” 15A CHARLES ALAN WRIGHT,

ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE &

PROCEDURE § 3914.10.4, 762–64 & n.49 (3d ed. 2022) (citing 

Oscarson as an example). That is not the case here, as we have a 

straightforward set of facts and a legal issue regarding the FSIA 

distinct from the merits of EIG’s claims. See Kimberlin v. Quinlan, 

199 F.3d 496, 503 (D.C. Cir. 1999) (Johnson precludes interlocutory 

review only “[w]hen the law and the fact issues are not separable”). 
9

Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 91 

(D.C. Cir. 2002). Under the FSIA, “a foreign state is 

presumptively immune from the jurisdiction of United States 

courts; unless a specified exception applies, a federal court 

lacks subject-matter jurisdiction over a claim against a foreign 

state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). 

Nonetheless, the FSIA embodies a “restrictive view of 

sovereign immunity.” EIG II, 894 F.3d at 344 (quoting Phoenix

Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. 

Cir. 2000)). The plaintiff bears only the initial burden to 

“produc[e] evidence that an exception applies,” after which the 

defendant “bears the ultimate burden of persuasion to show the 

exception does not apply.” Bell Helicopter Textron, Inc. v. 

Islamic Republic of Iran, 734 F.3d 1175, 1183 (D.C. Cir. 

2013).

EIG relies on the direct-effect exception to the FSIA, 

under which a U.S. court can exercise jurisdiction over a 

foreign sovereign if the sovereign’s commerce-related conduct 

“causes a direct effect in the United States.” 28 U.S.C. § 

1605(a)(2). The plaintiff must produce evidence “that the 

‘lawsuit is (1) based upon an act of a foreign state outside the 

territory of the United States; (2) that was taken in connection 

with a commercial activity of the foreign state outside this 

country; and (3) that caused a direct effect in the United 

States.’” EIG II, 894 F.3d at 345 (quoting Republic of 

Argentina v. Weltover, Inc., 504 U.S. 607, 611 (1992) 

(alterations, ellipses and internal quotation marks omitted)). 

The parties contest only the final element: directness. They

dispute whether the evidence produced at summary judgment 

bears out the allegations we found sufficient to show a direct 

effect at the dismissal stage. In EIG II, we held that EIG had 

met its burden of production “by alleging that Petrobras 

specifically targeted U.S. investors for Sete; that Petrobras 

intentionally concealed the ongoing fraud at Petrobras and at 
10

Sete; and that money invested in Sete was used to pay bribes 

and kickbacks.” EIG II, 894 F.3d at 345 (citations to the record 

omitted). The parties now focus on whether the evidence 

supports the finding that Petrobras “specifically targeted” EIG 

or other U.S. investors.2 But targeting is not the touchstone of 

our inquiry. We drew that term not from the FSIA’s text or our 

precedent but from EIG’s allegations. See id. (citing EIG’s 

pleadings); see also id. at 342 (citing the record for the 

allegation that “Petrobras specifically targeted U.S. investors 

for Sete”). EIG II held simply that EIG’s targeting allegations 

were sufficient to show “a direct effect in the United States.” It 

did not hold that targeting was the only way to satisfy the 

statute. The governing test remains whether Petrobras 

“cause[d] a direct effect in the United States” regardless of how 

it did so. 28 U.S.C. § 1605(a)(2).

A “direct” effect is one that “follows ‘as an immediate 

consequence of the defendant’s activity.’” Weltover, 504 U.S. 

at 618 (quotation omitted and ellipses removed). It “has no 

intervening element, but, rather, flows in a straight line without 

deviation or interruption.” Princz v. Federal Republic of 

Germany, 26 F.3d 1166, 1171 (D.C. Cir. 1994) (quotation 

omitted). A direct effect need not be substantial or foreseeable, 

see Weltover, 504 U.S. at 618, but it cannot be the result of 

mere happenstance or coincidence. See Cruise Connections 

Charter Mgmt. 1, LP v. Att’y Gen. of Canada, 600 F.3d 661, 

665 (D.C. Cir. 2010) (“[H]arm to a U.S. citizen, in and of itself, 

cannot satisfy the direct effect requirement.”); EIG II, 894 F.3d 

at 348 (noting the Second Circuit’s holding that “some 

financial loss from a foreign tort cannot, standing alone, suffice 

to trigger the exception” (quoting Antares Aircraft, L.P. v. 

2 Petrobras argues that “EIG fails the first prong of the EIG II

test, which requires that Petrobras have specifically targeted EIG or 

other U.S. investors.” Appellant’s Br. at 15.
11

Federal Republic of Nigeria, 999 F.2d 33, 36 (2d Cir. 1993))). 

We believe these requirements are met here.

Petrobras caused a direct effect in the United States 

because, as the district court correctly observed, “Petrobras 

engaged with EIG in a sustained course of dealing over many 

months that conveyed its desire to obtain an investment from 

EIG—one that ultimately resulted in an equity investment 

worth hundreds of millions of dollars.” EIG III, 621 F. Supp. 

3d at 51. No matter which party initiated the talks, Petrobras 

sought to convince EIG to invest in Sete. After all, Santander, 

Petrobras’ financial advisor, gave EIG access to a virtual data 

room so that EIG could assess the investment opportunity. Id. 

at 57. “Only potential investors were given access to the Data 

Room.” Id. Petrobras’ top executives, including Ferraz and 

Barbassa, met with EIG representatives no fewer than three 

times in Brazil to help secure the investment. See id. at 51. 

Petrobras tries to paint itself as the passive recipient of EIG’s 

unwanted attention but investors do not force themselves to 

make a $221 million investment. Petrobras’ actions “facilitated 

and promoted” EIG’s investment, directly leading to both the 

investment and EIG’s ultimate injury when the investment was 

lost. Id. at 50. See Cruise Connections, 600 F.3d at 665 (directeffect exception satisfied when defendant’s termination of a 

contract “led inexorably to the loss of revenues under 

[plaintiff’s] third-party agreements”).3

3 Petrobras attempts to support its characterization of the facts 

by pointing to part of Corrigan’s testimony that the district court 

excluded as hearsay. See EIG III, 621 F. Supp. 3d at 51–52. Corrigan 

testified that his impression from October 2010 talks with Santander 

was that Petrobras did not want international investors in Sete. He 

also testified that “as of March 2011, Petrobras had not expressed 

interest in EIG being an investor in Sete Brasil.” Id. at 51. EIG argues 

that this evidence was wrongly excluded and is proof that “EIG had 
12

The facts here are stronger than in Atlantica, the Second 

Circuit case we relied on in EIG II. See EIG II, 894 F.3d at 345 

(discussing Atlantica Holdings, Inc. v. Sovereign Wealth Fund 

Samruk-Kazyna JSC, 813 F.3d 98, 110 (2d Cir. 2016)). There, 

the court found the direct-effect exception satisfied when the 

plaintiffs invested in the defendant’s securities after receiving 

the defendant’s fraudulent memorandum about the securities 

from “third-party intermediaries,” not from the defendant 

itself. Atlantica, 813 F.3d at 113 (alteration omitted). Although

there was no allegation that the defendant met or directly 

communicated with the plaintiffs, there was a direct effect 

because the securities “were marketed in the United States and 

directed toward United States persons” and thus “the defendant 

contemplated and acted to encourage investment by United 

States persons.” Id. at 110–11. Here, by contrast, there was 

direct and extensive contact between Petrobras and EIG.

Nor was the direct effect in the United States the result of 

happenstance or coincidence. Indeed, it was wholly 

foreseeable. In EIG II, we noted that “EIG alleges that its 

United States presence was not mere happenstance to Petrobras 

and Sete, but that Petrobras and Sete ‘specifically targeted’ 

U.S. investors.” EIG II, 894 F.3d at 348 (quoting the record). 

The summary judgment evidence substantiates these 

allegations. Both Santander and Petrobras made lists of

potential U.S. investors and Petrobras pitched the Sete 

not been targeted by Petrobras.” Appellant’s Br. at 24. We do not 

think the district court abused its discretion in excluding the 

testimony, see Gilmore v. Palestinian Interim Self-Gov’t Auth., 843 

F.3d 958, 969 (D.C. Cir. 2016), but it would change little even if we 

considered it. Regardless of Corrigan’s impression, the concrete acts 

taken by Petrobras and its agent, Santander, including months-long 

access to Petrobras’ virtual data room, show that Petrobras was 

affirmatively cultivating a relationship with EIG as a potential 

investor.
13

investment opportunity at two conferences hosted and attended 

by potential U.S. investors. See EIG III, 621 F. Supp. 3d at 47–

49. The fact that the conferences were in Brazil and also 

attended by non-American investors does not alter the fact that 

Petrobras contemplated and tried to attract U.S. investment. 

Thus, this is not a case “in which the plaintiff’s U.S. citizenship 

was the only connection to the United States.” See Cruise 

Connections, 600 F.3d at 665.4

Finally, Petrobras argues that any effect from its actions 

was not sufficiently “direct” because superseding events broke 

the chain of causation. In essence, Petrobras contends that it 

had handed everything over to Sete before EIG decided to 

invest. From there, it was Sete, an independently financed and 

managed company, that encouraged and ultimately accepted

EIG’s investment.

We are unconvinced. As we recognized in EIG II, 

“multiple but-for causes” of an injury do not “break the chain 

of causation for any one of them.” EIG II, 894 F.3d at 346; see 

also id. (“Petrobras cannot oust the court of jurisdiction in a 

lawsuit resulting from its alleged fraud simply because Sete’s 

third-party lenders might also have injured EIG.”). That Sete 

4 Petrobras misunderstands the relevance of the evidence 

related to other U.S. investors. It argues that “whether Petrobras 

targeted U.S. investors other than EIG is irrelevant because EIG’s 

claims are not ‘based upon’ anything Petrobras said or did with 

respect to those investors.” Appellant’s Br. at 31; see 28 U.S.C. § 

1605(a)(2) (the direct-effect exception to the FSIA requires the suit 

to be “based upon” the foreign sovereign’s commercial activity). The 

other-investor evidence does not address what EIG’s suit is “based 

upon” but simply provides further evidence, in addition to Petrobras’ 

lengthy course of dealing with EIG itself, that it was no coincidence 

that the effects of Petrobras’ actions were “felt” in the United States.

See Atlantica, 813 F.3d at 110.
14

independently injured EIG does not relieve Petrobras of 

liability for its own fraudulent acts. That is particularly true 

here where the district court effectively concluded that 

Petrobras and Sete were operating in tandem. The court found 

that there was “no genuine dispute that a corruption scheme 

was sewn into Sete’s very fabric from the start.” EIG III, 621 

F. Supp. 3d at 55; see also id. at 53 (“The evidence shows that 

a bribery scheme identical to the one executed at Petrobras was 

built into Sete’s very DNA.”). There was uncontroverted 

testimony that “Petrobras set the bribery scheme in motion at 

Sete” by “hatch[ing] the plan to embed a kickback condition 

within the contracts for drilling rigs” and installing its own 

corrupt executives as Sete’s leaders. Id. at 78. Properly viewed, 

Sete did not break the chain of causation; it continued it. By 

beginning the bribery scheme and seeking EIG’s investment, 

Petrobras knocked over the first domino; it cannot shift blame 

to the end domino for the result.

Because we affirm the denial of Petrobras’ summary 

judgment motion on immunity grounds, we must address 

Petrobras’ argument that the district court prematurely granted 

summary judgment to EIG on the merits. Foreign sovereign 

immunity confers “immunity from litigation burdens as well as 

from the entry of adverse judgments,” which means that a suit 

against a foreign sovereign follows a set sequence. See Process

& Indus. Devs. Ltd. v. Fed. Republic of Nigeria, 962 F.3d 576, 

584 (D.C. Cir. 2020). “[A] district court must resolve immunity 

assertions ‘as early in the litigation as possible,’ even if that 

requires jurisdictional discovery and factual resolution of 

immunity questions to take place before the sovereign is 

required to defend the merits.” Id. (emphasis added) (quoting 

Phoenix Consulting, 216 F.3d at 39). Petrobras asks us to 

vacate the district court’s grant of summary judgment to EIG 

on the theory that the district court violated the immunity-then-
15

merits sequence by ruling on the merits before it had 

conclusively resolved Petrobras’ assertion of immunity.

The confusion here stems from the fact that the parties 

cross-moved for summary judgment on different grounds. 

Despite its right to insist on having the immunity issue resolved 

first, Petrobras argued that it was entitled to summary judgment 

both because it enjoyed sovereign immunity and because EIG’s 

claims failed on the merits. EIG Energy Fund XIV, L.P. v. 

Petróleo Brasileiro S.A, Civ. No. 1:16-cv-00333 (Sept. 1, 

2021), ECF No. 156. EIG, however, focused only on the merits 

and did not move for summary judgment on the issue of 

sovereign immunity. Id. (Sept. 1, 2021), ECF No. 153. The 

district court rejected Petrobras’ immunity argument and 

“proceed[ed] to the merits” because it was “satisfied that it has 

jurisdiction over EIG’s claims under the FSIA’s direct-effect 

exception.” EIG III, 621 F. Supp. 3d at 54. The court ultimately 

denied Petrobras’ motion for summary judgment in full and 

granted EIG partial summary judgment, ruling for EIG on the 

merits “as to liability” and reserving the issue of damages for 

trial. Id. at 84.

The issue is whether the district court was permitted to 

reach the merits given that it did not affirmatively grant 

summary judgment to EIG on the issue of sovereign immunity; 

instead, it denied Petrobras’ assertion of sovereign immunity at 

the summary judgment stage. The difference is an important 

one. A summary judgment grant conclusively determines an 

issue but a denial leaves the issue open for further factual 

development and resolution at trial. See Whalen v. Unit Rig, 

Inc., 974 F.2d 1248, 1251 (10th Cir.), as modified on reh’g

(Oct. 20, 1992) (“[A] denial of summary judgment is not a 

judgment, but ‘merely a judge’s determination that genuine 

issues of material fact exist.’” (quotation omitted)); 

Switzerland Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc., 385 
16

U.S. 23, 25 (1966) (“[T]he denial of a motion for summary 

judgment . . . is strictly a pretrial order that decides only one 

thing—that the case should go to trial.”). Indeed, the district 

court here recognized that it had left the immunity issue 

unresolved. At a status conference following the ruling, the 

judge stated that “I don’t think I’ve entered judgment on the 

issue of sovereign immunity; rather, I simply said that 

Petrobras has not carried its burden to show that it’s immune,” 

noting that this “in theory, could leave open the question for 

trial.” EIG Energy Fund XIV, L.P. v. Petróleo Brasileiro S.A, 

Civ. No. 1:16-cv-00333 (Aug. 25, 2022), ECF No. 201 at 15–

16.

We need not decide whether the district court erred or what 

the proper remedy might be if it did. As Petrobras recognizes, 

the district court’s merits ruling does not qualify as a collateral 

order as to which we have appellate jurisdiction. Even 

assuming we could nonetheless review it via pendent 

jurisdiction as Petrobras urges, doing so is discretionary and we 

decline to do so here. See Kilburn v. Socialist People’s Libyan 

Arab Jamahiriya, 376 F.3d 1123, 1136 (D.C. Cir. 2004) 

(“[W]hether or not we have authority to exercise pendent 

appellate jurisdiction in this case, there is no question that we 

have discretion to decline to do so.”). We exercise pendent 

jurisdiction sparingly and “only when substantial 

considerations of fairness or efficiency demand it.” Id. at 1133 

(quotation omitted). Here, neither fairness nor efficiency 

weighs in favor of interlocutory review. Petrobras voluntarily 

briefed the merits and thus invited the district court to rule upon 

them even if the immunity question were not yet conclusively 

resolved. Cf. Process & Indus. Devs. Ltd., 962 F.3d at 579–80 

(district court erred in requiring foreign sovereign, over its 

objection, to simultaneously brief immunity and merits issues). 

The district court did so thoroughly; our reversal of that ruling 

would only result in duplicative proceedings if Petrobras is 
17

ultimately denied sovereign immunity conclusively. Neither 

party is prejudiced if this issue is left for the district court to 

resolve on remand.

For the foregoing reasons, we deny EIG’s motion to 

dismiss the appeal for lack of jurisdiction and affirm the district 

court’s denial of Petrobras’ summary judgment motion on

immunity grounds. We remand for further proceedings 

consistent with this opinion.

So ordered.