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JURISDICTION OVER THE RES MR.

JUSTICE JACKSON delivered the opinion of the


Court.

The questions are whether the United States District


Court has inherent power to dismiss a suit pursuant to
Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) the doctrine of forum non conveniens and, if so,
whether that power was abused in this case.
Argued December 18, 19, 1946 Decided March
10, 1947 The respondent-plaintiff brought this action in the
Southern District of New York, but resides at Lynchburg,
CERTIORARI TO THE CIRCUIT COURT OF APPEALS Virginia, where he operated a public warehouse. He
alleges that the petitioner-defendant, in violation of the
ordinances of Lynchburg, so carelessly handled a
FOR THE SECOND CIRCUIT delivery of gasoline to his warehouse tanks and pumps
as to cause an explosion and fire which consumed the
Syllabus warehouse building to his damage of $41,889.10,
destroyed merchandise and fixtures to his damage of
$3,602.40, caused injury to his business and profits of
1. A federal district court has power to dismiss an
$20,038.27, and burned the property of customers in
action at law pursuant to the doctrine of forum non
his custody under warehousing agreements to the
conveniens -- at least where its jurisdiction is based on
extent of $300,000. He asks judgment of $365,529.77,
diversity of citizenship and the state courts have such
with costs and disbursements, and interest from the
power.
date of fire. The action clearly is one in tort.

2. A resident of Virginia brought an action in a federal


The petitioner-defendant is a corporation organized
district court in New York City against a Pennsylvania
under the laws of Pennsylvania, qualified to do
corporation qualified to do business in both Virginia
business in both Virginia and New York, and it has
and New York (where it had designated agents to
designated officials of each state as agents to receive
receive service of process) to recover damages for
service of process. When sued in New York, the
destruction of plaintiff's public warehouse and its
defendant, invoking the doctrine of forum non
contents in Virginia by fire resulting from defendant's
conveniens, claimed that the appropriate place for trial
negligence. The court had jurisdiction (based solely on
is Virginia, where the plaintiff lives and defendant does
diversity of citizenship), and the venue was correct, but
business, where all events in litigation took place,
all events in litigation had taken place in Virginia, most
where most of the witnesses reside, and where both
of the witnesses resided there, and both state and
state and federal courts are available to plaintiff, and
federal courts in Virginia were available to plaintiff and
are able to obtain jurisdiction of the defendant.
were able to obtain jurisdiction of defendant. Applying
the doctrine of forum non conveniens, the court
dismissed the suit. The case, on its merits, involves no federal question,
and was brought in the United States District Court
solely because of diversity in citizenship of the parties.
Held: it did not abuse its discretion in doing so.
Because of the character of its jurisdiction and the
holdings of and under Erie Railroad Co. v. Tompkins,
3. Important considerations in the application of the the District Court considered that the law of New York
doctrine of forum non conveniens, from the standpoint as to forum non conveniens applied, and that it
of litigants, are relative ease of access to sources of required the case to be left to Virginia courts. It
proof, availability of compulsory process for attendance therefore dismissed.
of unwilling witnesses, cost of obtaining attendance of
willing witnesses, possibility of view of the premises if
The Circuit Court of Appeals disagreed as to the
that be appropriate, and all other practical problems
applicability of New York law, took a restrictive view of
that make trial of a case easy, expeditious, and
the application of the entire doctrine in federal courts,
inexpensive.
and, one judge dissenting, reversed. The case is here
on certiorari.
4. Considerations of public interest in applying the
doctrine include the undesirability of piling up litigation
I
in congested centers, the burden of jury duty on
people of a community having no relation to the
litigation, the local interest in having localized It is conceded that the venue statutes of the United
controversies decided at home, and the unnecessary States permitted the plaintiff to commence his action
injection of problems in conflict of laws. 153 F.2d 883, in the Southern District of New York, and empower that
reversed. court to entertain it. But that does not settle the
question whether it must do so. Indeed, the doctrine
of forum non conveniens can never apply if there is
Applying the doctrine of forum non conveniens, a
absence of jurisdiction or mistake of venue.
district court dismissed a tort action in New York arising
out of events occurring in Virginia. The Circuit Court of
Appeals reversed. This Court granted certiorari.
This Court, in one form of words or another, has where the defendant may be sued, and makes him
repeatedly recognized the existence of the power to accept the plaintiff's choice. The Neirbo case is only a
decline jurisdiction in exceptional circumstances. As declaration that, if the defendant, by filing consent to
formulated by Mr. Justice Brandeis, the rule is: be sued, waives its privilege to be sued at its place of
residence, it may be sued in the federal courts at the
"Obviously, the proposition that a court having place where it has consented to be sued. But the
jurisdiction must exercise it is not universally true -- general venue statute plus the Neirbo interpretation do
else the admiralty court could never decline jurisdiction not add up to a declaration that the court must respect
on the ground that the litigation is between foreigners. the choice of the plaintiff, no matter what the type of
Nor is it true of courts administering other systems of suit or issues involved. The two, taken together, mean
our law. Courts of equity and of law also occasionally only that the defendant may consent to be sued, and it
decline, in the interest of justice, to exercise is proper for the federal court to take jurisdiction, not
jurisdiction where the suit is between aliens or that the plaintiff's choice cannot be questioned. The
nonresidents, or where, for kindred reasons, the defendant's consent to be sued extends only to give
litigation can more appropriately be conducted in a the court jurisdiction of the person; it assumes that the
foreign tribunal." court, having the parties before it, will apply all the
applicable law, including, in those cases where it is
appropriate, its discretionary judgment as to whether
We later expressly said that a state court "may, in the suit should be entertained. In all cases in which the
appropriate cases, apply the doctrine of forum non doctrine of forum non conveniens comes into play, it
conveniens." Even where federal rights binding on presupposes at least two forums in which the
state courts under the Constitution are sought to be defendant is amenable to process; the doctrine
adjudged, this Court has sustained state courts in a furnishes criteria for choice between them.
refusal to entertain a litigation between a nonresident
and a foreign corporation or between two foreign
corporations. II

It has held the use of an inappropriate forum in one The principle of forum non conveniens is simply that a
case an unconstitutional burden on interstate court may resist imposition upon its jurisdiction even
commerce. On substantially forum non when jurisdiction is authorized by the letter of a
conveniens grounds, we have required federal courts general venue statute. These statutes are drawn with a
to relinquish decision of cases within their jurisdiction necessary generality, and usually give a plaintiff a
where the court would have to participate in the choice of courts, so that he may be quite sure of some
administrative policy of a state. And, most recently, place in which to pursue his remedy. But the open door
we decided Williams v. Green Bay & Western R. Co., in may admit those who seek not simply justice, but
which the Court, without questioning the validity of the perhaps justice blended with some harassment. A
doctrine, held it had been applied in that case without plaintiff sometimes is under temptation to resort to a
justification. strategy of forcing the trial at a most inconvenient
place for an adversary, even at some inconvenience to
himself.
It is true that, in cases under the Federal Employers'
Liability Act, we have held that plaintiff's choice of a
forum cannot be defeated on the basis of forum non Many of the states have met misuse of venue by
conveniens. But this was because the special venue investing courts with a discretion to change the place
act under which those cases are brought was believed of trial on various grounds, such as the convenience of
to require it. Those decisions do not purport to modify witnesses and the ends of justice. The federal law
the doctrine as to other cases governed by the general contains no such express criteria to guide the district
venue statutes. court in exercising its power. But the problem is a very
old one affecting the administration of the courts as
well as the rights of litigants, and, both in England and
But the court below says that in this country, the common law worked out techniques
and criteria for dealing with it.
"The Kepner case . . . warned against refusal of
jurisdiction in a particular case controlled by Wisely, it has not been attempted to catalogue the
congressional act; here, the only difference is that circumstances which will justify or require either grant
congressional act, plus judicial interpretation (under or denial of remedy. The doctrine leaves much to the
the Neirbo case), spells out the result." discretion of the court to which plaintiff resorts, and
experience has not shown a judicial tendency to
The Federal Employers' Liability Act, however, which renounce one's own jurisdiction so strong as to result in
controlled decision in the Kepner case, specifically many abuses.
provides where venue may be had in any suit on a
cause of action arising under that statute. What the If the combination and weight of factors requisite to
court below refers to as "congressional act, plus given results are difficult to forecast or state, those to
judicial interpretation" is the general statute of venue be considered are not difficult to name. An interest to
in diversity suits, plus our decision that it gives the be considered, and the one likely to be most pressed,
defendant "a personal privilege respecting the venue, is the private interest of the litigant. Important
or place of suit, which he may assert, or may waive at considerations are the relative ease of access to
his election," The Federal Employers' Liability Act, as sources of proof; availability of compulsory process for
interpreted by Kepner, increases the number of places attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; possibility of view of the imagination of a local jury which is surely
premises, if view would be appropriate to the action, unaccustomed to dealing with amounts of such a
and all other practical problems that make trial of a nature. Furthermore, removed from Lynchburg, the
case easy, expeditious, and inexpensive. There may respondent will have an opportunity to try this case
also be questions as to the enforceability of a judgment free from local influences and preconceived notions
if one is obtained. The court will weigh relative which make it difficult to procure a jury which has no
advantages and obstacles to fair trial. It is often said previous knowledge of any of the facts herein."
that the plaintiff may not, by choice of an inconvenient
forum, "vex," "harass," or "oppress" the defendant by This unproven premise that jurors of New York live on
inflicting upon him expense or trouble not necessary to terms of intimacy with $400,000 transactions is not an
his own right to pursue his remedy. But, unless the assumption we easily make. Nor can we assume that a
balance is strongly in favor of the defendant, the jury from Lynchburg and vicinity would be "staggered"
plaintiff's choice of forum should rarely be disturbed. by contemplating the value of a warehouse building
that stood in their region, or of merchandise and
Factors of public interest also have place in applying fixtures such as were used there, nor are they likely to
the doctrine. Administrative difficulties follow for courts be staggered by the value of chattels which the people
when litigation is piled up in congested centers instead of that neighborhood put in storage. It is a strange
of being handled at its origin. Jury duty is a burden that argument on behalf of a Virginia plaintiff that the
ought not to be imposed upon the people of a community which gave him patronage to make his
community which has no relation to the litigation. In business valuable is not capable of furnishing jurors
cases which touch the affairs of many persons, there is who know the value of the goods they store, the
reason for holding the trial in their view and reach, building they are stored in, or the business their
rather than in remote parts of the country where they patronage creates. And there is no specification of any
can learn of it by report only. There is a local interest in local influence, other than accurate knowledge of local
having localized controversies decided at home. There conditions, that would make a fair trial improbable. The
is an appropriateness, too, in having the trial of a net of this is that we cannot say the District Court was
diversity case in a forum that is at home with the state bound to entertain a provincial fear of the
law that must govern the case, rather than having a provincialism of a Virginia jury. That leaves the Virginia
court in some other forum untangle problems in plaintiff without even a suggested reason for
conflict of laws, and in law foreign to itself. transporting this suit to New York.

The law of New York as to the discretion of a court to Defendant points out that not only the plaintiff, but
apply the doctrine of forum non conveniens, and as to every person who participated in the acts charged to
the standards that guide discretion is, so far as here be negligent, resides in or near Lynchburg. It also
involved, the same as the federal rule. Murnan v. claims a need to interplead an alleged independent
Wabash Ry. Co., 246 N.Y. 244, 158 N.E. contractor which made the delivery of the gasoline and
508; Wedemann v. United States Trust Co.. 258 N.Y. which is a Virginia corporation domiciled in Lynchburg,
315, 179 N.E. 712; see Gregonis v. Philadelphia & that it cannot interplead in New York. There also are
Reading Coal & Iron Co., 235 N.Y. 152, 139 N.E. 223. It approximately 350 persons residing in and around
would not be profitable therefore to pursue inquiry as Lynchburg who stored with plaintiff the goods for the
to the source from which our rule must flow. damage to which he seeks to recover. The extent to
which they have left the community since the fire and
III the number of them who will actually be needed is in
dispute. The complaint alleges that defendant's
conduct violated Lynchburg ordinances. Conditions are
Turning to the question whether this is one of those said to require proof by firemen and by many others.
rather rare cases where the doctrine should be applied, The learned and experienced trial judge was not
we look first to the interests of the litigants. unaware that litigants generally manage to try their
cases with fewer witnesses than they predict in such
The plaintiff himself is not a resident of New York, nor motions as this. But he was justified in concluding that
did any event connected with the case take place this trial is likely to be long, and to involve calling
there, nor does any witness with the possible exception many witnesses, and that Lynchburg, some 400 miles
of experts live there. No one connected with that side from New York, is the source of all proofs for either
of the case save counsel for the plaintiff resides there, side, with possible exception of experts. Certainly to fix
and he has candidly told us that he was retained by the place of trial at a point where litigants cannot
insurance companies interested presumably because compel personal attendance and may be forced to try
of subrogation. His affidavits and argument are their cases on deposition is to create a condition not
devoted to controverting claims as to defendant's satisfactory to court, jury, or most litigants. Nor is it
inconvenience, rather than to showing that the present necessarily cured by the statement of plaintiff's
forum serves any convenience of his own, with one counsel that he will see to getting many of the
exception. The only justification for trial in New York witnesses to the trial, and that some of them "would be
advanced here is one rejected by the district court and delighted to come to New York to testify." There may
is set forth in the brief as follows: be circumstances where such a proposal should be
given weight. In others, the offer may not turn out to
be as generous as defendant or court might suppose it
"This Court can readily realize that an action of this to be. Such matters are for the District Court to decide
type, involving as it does a claim for damages in an in exercise of a sound discretion.
amount close to $400,000, is one which may stagger
The court likewise could well have concluded that the Hyde v. Stone, quoted with approval in Chicot County
task of the trial court would be simplified by trial in v. Sherwood. Never until today has this Court held, in
Virginia. actions for money damages for violations of common
law or statutory rights, that a district court can
If trial was in a state court, it could apply its own law to abdicate its statutory duty to exercise its jurisdiction
events occurring there. If in federal court by reason of for the alleged convenience of the defendant to a
diversity of citizenship, the court would apply the law lawsuit.
of its own state in which it is likely to be experienced.
The course of adjudication in New York federal court For reasons peculiar to the special problems of
might be beset with conflict of laws problems all admiralty and to the extraordinary remedies of equity,
avoided if the case is litigated in Virginia, where it the courts exercising admiralty and equity powers have
arose. been permitted at times to decline to exercise their
jurisdiction. This exception is rooted in the kind of
We are convinced that the District Court did not exceed relief which these courts grant and the kinds of
its powers or the bounds of its discretion in dismissing problems which they solve. Courts of equity developed
plaintiff's complaint and remitting him to the courts of to afford relief where a money judgment in the
his own community. The Circuit Court of Appeals took common law courts provided no adequate remedy for
too restrictive a view of the doctrine as approved by an injured person. From the beginning of equitable
this Court. Its judgment is jurisdiction up to now, the chancery courts have
generally granted or withheld their special remedies at
their discretion, and "courts of admiralty . . . act upon
Reversed. enlarged principles of equity." But this Court has, on
many occasions, severely restricted the discretion of
MR. JUSTICE REED and MR. JUSTICE BURTON dissent. district courts to decline to grant even the
They do not set out the factual reasons for their extraordinary equitable remedies. Meredith v. Winter
dissent, since the Court's affirmance of Koster v. Haven, supra, and cases there cited, Previously, federal
Lumbermens Mutual casualty Co., 330 U. S. 518, would courts have not generally been allowed the broad and
control. indefinite discretion to dispose even of equity cases
solely on a trial court's judgment of the relative
convenience of the forum for the parties themselves.
For a major factor in these equity decisions has been
the relative ability of the forum to shape and execute
MR. JUSTICE BLACK, dissenting. its equitable remedy.

The defendant corporation is organized under the laws No such discretionary authority to decline to decide a
of Pennsylvania, but is qualified to do business and case, however, has, before today, been vested in
maintains an office in New York. Plaintiff is an individual federal courts in actions for money judgments deriving
residing and doing business in Virginia. The accident in from statutes or the common law. To engraft the
which plaintiff alleges to have been damaged occurred doctrine of forum non conveniens upon the statutes
in Lynchburg, Virginia. Plaintiff brought this action in fixing jurisdiction and proper venue in the district
the Federal District Court in New York. Section 11 of the courts in such actions seems to me to be far more than
Judiciary Act of 1789, 1 Stat. 78, carried over into the the mere filling in of the interstices of those statutes.
Judicial Code, 24, 28 U.S.C. 41(1), confers
jurisdiction upon federal district courts of all actions at It may be that a statute should be passed authorizing
law between citizens of different states. The Court does the federal district courts to decline to try so-called
not suggest that the federal district court in New York common law cases according to the convenience of the
lacks jurisdiction under this statute, or that the venue parties. But whether there should be such a statute,
was improper in this case. But it holds that a district and determination of its scope and the safeguards
court may abdicate its jurisdiction when a defendant which should surround it, are, in my judgment,
shows to the satisfaction of a district court that it questions of policy which Congress should decide.
would be more convenient and less vexatious for the There are strong arguments presented by the Court in
defendant if the trial were held in another jurisdiction. its opinion why federal courts exercising their common
Neither the venue statute nor the statute which has law jurisdiction should have the discretionary powers
governed jurisdiction since 1789 contains any which equity courts have always possessed in
indication or implication that a federal district court, dispensing equitable relief. I think equally strong
once satisfied that jurisdiction and venue requirements arguments could be advanced to show that they
have been met, may decline to exercise its jurisdiction. should not. For any individual or corporate defendant
Except in relation to the exercise of the extraordinary who does part of his business in states other than the
admiralty and equity powers of district courts, this one in which he is sued will almost invariably be put to
Court has never before held contrary to the general some inconvenience to defend himself. It will be a
principle that poorly represented multistate defendant who cannot
produce substantial evidence and good reasons fitting
"the courts of the United States are bound to proceed the rule now adopted by this Court tending to establish
to judgment and to afford redress to suitors before that the forum of action against him is most
them in every case to which their jurisdiction extends. inconvenient. The Court's new rule will thus clutter the
They cannot abdicate their authority or duty in any very threshold of the federal courts with a preliminary
case in favor of another jurisdiction." trial of fact concerning the relative convenience of
forums. The preliminary disposition of this factual
question will, I believe, produce the very kind of
uncertainty, confusion, and hardship which stalled and
handicapped persons seeking compensation for
maritime injuries following this Court's decision
in Southern Pacific Co. v. Jensen, The broad and
indefinite discretion left to federal courts to decide the
question of convenience from the welter of factors
which are relevant to such a judgment will inevitably
produce a complex of close and indistinguishable
decisions from which accurate prediction of the proper
forum will become difficult, if not impossible. Yet World-Wide Volkswagen Corp. v. Woodson, 444
plaintiffs will be asked U.S. 286 (1980)
Argued October 3, 1979 / Decided January 21,
"to determine with certainty before bringing their 1980
actions that factual question over which courts
regularly divide among themselves and within their CERTIORARI TO THE SUPREME COURT OF OKLAHOMA
own membership. As penalty for error, the injured
individual may not only suffer serious financial loss Syllabus
through the delay and expense of litigation, but
discover that his claim has been barred by the statute
of limitations in the proper forum while he was A products liability action was instituted in an
erroneously pursuing it elsewhere." Oklahoma st,ate court by respondents husband and
wife to recover for personal injuries sustained in
Oklahoma in an accident involving an automobile that
This very case illustrates the hazards of delay. It must had been purchased by them in New York while they
be begun anew in another forum after the District were New York residents and that was being driven
Court, the Circuit Court of Appeals, and now this Court through Oklahoma at the time of the accident. The
have had their time-consuming say as to the relative defendants included the automobile retailer and its
convenience of the forum in which the plaintiff chose wholesaler (petitioners), New York corporations that did
to seek redress. Whether the statute of limitations has no business in Oklahoma. Petitioners entered special
run against the plaintiff we do not know. The appearances, claiming that Oklahoma's exercise of
convenience which the individual defendant will enjoy jurisdiction over them would offend limitations on the
from the Court's new rule of forum non conveniens in State's jurisdiction imposed by the Due Process Clause
law actions may be thought to justify its inherent of the Fourteenth Amendment. The trial court rejected
delays, uncertainties, administrative complications, petitioners' claims, and they then sought, but were
and hardships. But, in any event, Congress has not yet denied, a writ of prohibition in the Oklahoma Supreme
said so, and I do not think that this Court should, 150 Court to restrain respondent trial judge from
years after the passage of the Judiciary Act, fill in what exercising in personam jurisdiction over them.
it thinks is a deficiency in the deliberate policy which
Congress adopted. Whether the doctrine of forum non
conveniens is good or bad, I should wait for Congress Held: Consistently with the Due Process Clause, the
to adopt it. Oklahoma trial court may not exercise in
personam jurisdiction over petitioners.
MR. JUSTICE RUTLEDGE joins in this opinion.
(a) A state court may exercise personal jurisdiction
over a nonresident defendant only so long as there
exist "minimum contacts" between the defendant and
the forum State. International Shoe Co. v.
Washington, 326 U. S. 310. The defendant's contacts
with the forum State must be such that maintenance of
the suit does not offend traditional notions of fair play
and substantial justice, id. at 326 U. S. 316, and the
relationship between the defendant and the forum
must be such that it is "reasonable . . . to require the
corporation to defend the particular suit which is
brought there," The Due Process Clause "does not
contemplate that a state may make binding a
judgment in personam against an individual or
corporate defendant with which the state has no
contacts, ties, or relations."

(b) Here, there is a total absence in the record of those


affiliating circumstances that are a necessary predicate
to any exercise of state court jurisdiction. Petitioners
carry on no activity whatsoever in Oklahoma; they
close no sales and perform no services there, avail
themselves of none of the benefits of Oklahoma law,
and solicit no business there either through and has its place of business in New York. Insofar as
salespersons or through advertising reasonably the record reveals, Seaway and World-Wide are fully
calculated to reach that State. Nor does the record independent corporations whose relations with each
show that they regularly sell cars to Oklahoma other and with Volkswagen and Audi are contractual
residents, or that they indirectly, through others, serve only. Respondents adduced no evidence that either
or seek to serve the Oklahoma market. Although it is World-Wide or Seaway does any business in Oklahoma,
foreseeable that automobiles sold by petitioners would ships or sells any products to or in that State, has an
travel to Oklahoma and that the automobile here might agent to receive process there, or purchases
cause injury in Oklahoma, "foreseeability" alone is not advertisements in any media calculated to reach
a sufficient benchmark for personal jurisdiction under Oklahoma. In fact, as respondents' counsel conceded
the Due Process Clause. The foreseeability that is at oral argument, Tr. of Oral Arg 32, there was no
critical to due process analysis is not the mere showing that any automobile sold by World-Wide or
likelihood that a product will find its way into the forum Seaway has ever entered Oklahoma, with the single
State, but rather is that the defendant's conduct and exception of the vehicle involved in the present case.
connection with the forum are such that he should
reasonably anticipate being haled into court there. Nor Despite the apparent paucity of contacts between
can jurisdiction be supported on the theory that petitioners and Oklahoma, the District Court rejected
petitioners earn substantial revenue from goods used their constitutional claim and reaffirmed that ruling in
in Oklahoma. denying petitioners' motion for reconsideration.
[Footnote 5] Petitioners then sought a writ of
MR. JUSTICE WHITE delivered the opinion of the Court. prohibition in the Supreme Court of Oklahoma to
restrain the District Judge, respondent Charles S.
The issue before us is whether, consistently with the Woodson, from exercising in personam jurisdiction over
Due Process Clause of the Fourteenth Amendment, an them. They renewed their contention that, because
Oklahoma court may exercise in personam jurisdiction they had no "minimal contacts," App. 32, with the
over a nonresident automobile retailer and its State of Oklahoma, the actions of the District Judge
wholesale distributor in a products liability action, were in violation of their rights under the Due Process
when the defendants' only connection with Oklahoma Clause.
is the fact that an automobile sold in New York to New
York residents became involved in an accident in The Supreme Court of Oklahoma denied the writ, 585
Oklahoma. P.2d 351 (1978), [Footnote 6] holding that personal
jurisdiction over petitioners was authorized by
I Oklahoma's "long-arm" statute,

Respondents Harry and Kay Robinson purchased a new Although the court noted that the proper approach was
Audi automobile from petitioner Seaway Volkswagen, to test jurisdiction against both statutory and
Inc. (Seaway), in Massena, N.Y. in 1976. The following constitutional standards, its analysis did not distinguish
year, the Robinson family, who resided in New York, left these questions, probably because 1701.03(a)(4) has
that State for a new home in Arizona. As they passed been interpreted as conferring jurisdiction to the limits
through the State of Oklahoma, another car struck permitted by the United States Constitution. [Footnote
their Audi in the rear, causing a fire which severely 8] The court's rationale was contained in the following
burned Kay Robinson and her two children. [Footnote paragraph:
1]
"In the case before us, the product being sold and
The Robinsons [Footnote 2] subsequently brought a distributed by the petitioners is, by its very design and
products liability action in the District Court for Creek purpose, so mobile that petitioners can foresee its
County, Okla., claiming that their injuries resulted from possible use in Oklahoma. This is especially true of the
defective design and placement of the Audi's gas tank distributor, who has the exclusive right to distribute
and fuel system. They joined as defendants the such automobile in New York, New Jersey and
automobile's manufacturer, Audi NSU Auto Union Connecticut. The evidence presented below
Aktiengesellschaft (Audi); its importer, Volkswagen of demonstrated that goods sold and distributed by the
America, Inc. (Volkswagen); its regional distributor, petitioners were used in the State of Oklahoma, and,
petitioner World-Wide Volkswagen Corp. (World-Wide); under the facts, we believe it reasonable to infer, given
and its retail dealer, petitioner Seaway. Seaway and the retail value of the automobile, that the petitioners
World-Wide entered special appearances, [Footnote 3] derive substantial income from automobiles which from
claiming that Oklahoma's exercise of jurisdiction over time to time are used in the State of Oklahoma. This
them would offend the limitations on the State's being the case, we hold that, under the facts
jurisdiction imposed by the Due Process Clause of the presented, the trial court was justified in concluding
Fourteenth Amendment. [Footnote 4] that the petitioners derive substantial revenue from
goods used or consumed in this State."

The facts presented to the District Court showed that


World-Wide is incorporated and has its business office We granted certiorari, to consider an important
in New York. It distributes vehicles, parts, and constitutional question with respect to state court
accessories, under contract with Volkswagen, to retail jurisdiction and to resolve a conflict between the
dealers in New York, New Jersey, and Connecticut. Supreme Court of Oklahoma and the highest courts of
Seaway, one of these retail dealers, is incorporated at least four other States. [Footnote 9] We reverse.
II to defend himself in a State where he engages in
economic activity."
The Due Process Clause of the Fourteenth Amendment
limits the power of a state court to render a valid The historical developments noted in McGee, of course,
personal judgment against a nonresident defendant. A have only accelerated in the generation since that case
judgment rendered in violation of due process is void in was decided.
the rendering State and is not entitled to full faith and
credit elsewhere. Due process requires that the Nevertheless, we have never accepted the proposition
defendant be given adequate notice of the suit, and that state lines are irrelevant for jurisdictional
be subject to the personal jurisdiction of the court. In purposes, nor could we and remain faithful to the
the present case, it is not contended that notice was principles of interstate federalism embodied in the
inadequate; the only question is whether these Constitution. The economic interdependence of the
particular petitioners were subject to the jurisdiction of States was foreseen and desired by the Framers. In the
the Oklahoma courts. Commerce Clause, they provided that the Nation was
to be a common market, a "free trade unit" in which
As has long been settled, and as we reaffirm today, a the States are debarred from acting as separable
state court may exercise personal jurisdiction over a economic entities. But the Framers also intended that
nonresident defendant only so long as there exist the States retain many essential attributes of
"minimum contacts" between the defendant and the sovereignty, including, in particular, the sovereign
forum State. International Shoe Co. v. Washington, power to try causes in their courts. The sovereignty of
supra at 326 U. S. 316. The concept of minimum each State, in turn, implied a limitation on the
contacts, in turn, can be seen to perform two related, sovereignty of all of its sister States -- a limitation
but distinguishable, functions. It protects the defendant express or implicit in both the original scheme of the
against the burdens of litigating in a distant or Constitution and the Fourteenth Amendment.
inconvenient forum. And it acts to ensure that the
States, through their courts, do not reach out beyond Hence, even while abandoning the shibboleth that
the limits imposed on them by their status as coequal "[t]he authority of every tribunal is necessarily
sovereigns in a federal system. restricted by the territorial limits of the State in which
it is established," we emphasized that the
The protection against inconvenient litigation is reasonableness of asserting jurisdiction over the
typically described in terms of "reasonableness" or defendant must be assessed "in the context of our
"fairness." We have said that the defendant's contacts federal system of government,"
with the forum State must be such that maintenance of
the suit "does not offend traditional notions of fair play International Shoe Co. v. Washington, 326 and stressed
and substantial justice.' The relationship between the that the Due Process Clause ensures not only fairness,
defendant and the forum must be such that it is but also the "orderly administration of the laws,"
"reasonable . . . to require the corporation to defend
the particular suit which is brought there." Implicit in
this emphasis on reasonableness is the understanding "As technological progress has increased the flow of
that the burden on the defendant, while always a commerce between the States, the need for
primary concern, will in an appropriate case be jurisdiction over nonresidents has undergone a similar
considered in light of other relevant factors, including increase. At the same time, progress in
the forum State's interest in adjudicating the dispute, communications and transportation has made the
the plaintiff's interest in obtaining convenient and defense of a suit in a foreign tribunal less burdensome.
effective relief, at least when that interest is not In response to these changes, the requirements for
adequately protected by the plaintiff's power to choose personal jurisdiction over nonresidents have evolved
the forum, the interstate judicial system's interest in from the rigid rule of Pennoyer v. Neff, 95 U. S. 714, to
obtaining the most efficient resolution of the flexible standard of International Shoe Co. v.
controversies; and the shared interest of the several Washington, 326 U. S. 310. But it is a mistake to
States in furthering fundamental substantive social assume that this trend heralds the eventual demise of
policies. all restrictions on the personal jurisdiction of state
courts. [Citation omitted.] Those restrictions are more
than a guarantee of immunity from inconvenient or
The limits imposed on state jurisdiction by the Due distant litigation. They are a consequence of territorial
Process Clause, in its role as a guarantor against limitations on the power of the respective States."
inconvenient litigation, have been substantially relaxed
over the years. As we noted in McGee v. International
Life Ins. Co. this trend is largely attributable to a Thus, the Due Process Clause
fundamental transformation in the American economy:
"does not contemplate that a state may make binding
"Today many commercial transactions touch two or a judgment in personam against an individual or
more States, and may involve parties separated by the corporate defendant with which the state has no
full continent. With this increasing nationalization of contacts, ties, or relations."
commerce has come a great increase in the amount of
business conducted by mail across state lines. At the Even if the defendant would suffer minimal or no
same time, modern transportation and communication inconvenience from being forced to litigate before the
have made it much less burdensome for a party sued tribunals of another State; even if the forum State has
a strong interest in applying its law to the controversy; This is not to say, of course, that foreseeability is
even if the forum State is the most convenient location wholly irrelevant. But the foreseeability that is critical
for litigation, the Due Process Clause, acting as an to due process analysis is not the mere likelihood that
instrument of interstate federalism, may sometimes a product will find its way into the forum State. Rather,
act to divest the State of its power to render a valid it is that the defendant's conduct and connection with
judgment. the forum State are such that he should reasonably
anticipate being haled into court there. The Due
III Process Clause, by ensuring the "orderly administration
of the laws," gives a degree of predictability to the
legal system that allows potential defendants to
Applying these principles to the case at hand, structure their primary conduct with some minimum
[Footnote 10] we find in the record before us a total assurance as to where that conduct will and will not
absence of those affiliating circumstances that are a render them liable to suit.
necessary predicate to any exercise of state court
jurisdiction. Petitioners carry on no activity whatsoever
in Oklahoma. They close no sales and perform no When a corporation "purposefully avails itself of the
services there. They avail themselves of none of the privilege of conducting activities within the forum
privileges and benefits of Oklahoma law. They solicit no State, it has clear notice that it is subject to suit there,
business there either through salespersons or through and can act to alleviate the risk of burdensome
advertising reasonably calculated to reach the State. litigation by procuring insurance, passing the expected
Nor does the record show that they regularly sell cars costs on to customers, or, if the risks are too great,
at wholesale or retail to Oklahoma customers or severing its connection with the State. Hence if the
residents, or that they indirectly, through others, serve sale of a product of a manufacturer or distributor such
or seek to serve the Oklahoma market. In short, as Audi or Volkswagen is not simply an isolated
respondents seek to base jurisdiction on one, isolated occurrence, but arises from the efforts of the
occurrence and whatever inferences can be drawn manufacturer or distributor to serve, directly or
therefrom: the fortuitous circumstance that a single indirectly, the market for its product in other States, it
Audi automobile, sold in New York to New York is not unreasonable to subject it to suit in one of those
residents, happened to suffer an accident while States if its allegedly defective merchandise has there
passing through Oklahoma. been the source of injury to its owner or to others. The
forum State does not exceed its powers under the Due
Process Clause if it asserts personal jurisdiction over a
It is argued, however, that, because an automobile is corporation that delivers its products into the stream of
mobile by its very design and purpose, it was commerce with the expectation that they will be
"foreseeable" that the Robinsons' Audi would cause purchased by consumers in the forum State.
injury in Oklahoma. Yet "foreseeability" alone has never
been a sufficient benchmark for personal jurisdiction
under the Due Process Clause. In Hanson v. Denckla, But there is no such or similar basis for Oklahoma
supra, it was no doubt foreseeable that the settlor of a jurisdiction over World-Wide or Seaway in this case.
Delaware trust would subsequently move to Florida Seaway's sales are made in Massena, N. Y. World-
and seek to exercise a power of appointment there; yet Wide's market, although substantially larger, is limited
we held that Florida courts could not constitutionally to dealers in New York, New Jersey, and Connecticut.
exercise jurisdiction over a Delaware trustee that had There is no evidence of record that any automobiles
no other contacts with the forum State. In Kulko v. distributed by World-Wide are sold to retail customers
California Superior Court, it was surely "foreseeable" outside this tristate area. It is foreseeable that the
that a divorced wife would move to California from New purchasers of automobiles sold by World-Wide and
York, the domicile of the marriage, and that a minor Seaway may take them to Oklahoma. But the mere
daughter would live with the mother. Yet we held that "unilateral activity of those who claim some
California could not exercise jurisdiction in a child relationship with a nonresident defendant cannot
support action over the former husband, who had satisfy the requirement of contact with the forum
remained in New York. State."

If foreseeability were the criterion, a local California tire In a variant on the previous argument, it is contended
retailer could be forced to defend in Pennsylvania when that jurisdiction can be supported by the fact that
a blowout occurs there, a Wisconsin seller of a petitioners earn substantial revenue from goods used
defective automobile jack could be haled before a in Oklahoma. The Oklahoma Supreme Court so found,
distant court for damage caused in New Jersey; or a drawing the inference that, because one automobile
Florida soft-drink concessionaire could be summoned sold by petitioners had been used in Oklahoma, others
to Alaska to account for injuries happening there. Every might have been used there also. While this inference
seller of chattels would, in effect, appoint the chattel seems less than compelling on the facts of the instant
his agent for service of process. His amenability to suit case, we need not question the court's factual findings
would travel with the chattel. We recently abandoned in order to reject its reasoning.
the outworn rule of that the interest of a creditor in a
debt could be extinguished or otherwise affected by This argument seems to make the point that the
any State having transitory jurisdiction over the debtor. purchase of automobiles in New York, from which the
Having interred the mechanical rule that a creditor's petitioners earn substantial revenue, would not
amenability to a quasi in remaction travels with his occur but for the fact that the automobiles are capable
debtor, we are unwilling to endorse an analogous of use in distant States like Oklahoma. Respondents
principle in the present case. [Footnote 11] observe that the very purpose of an automobile is to
travel, and that travel of automobiles sold by The existence of contacts, so long as there were some,
petitioners is facilitated by an extensive chain of was merely one way of giving content to the
Volkswagen service centers throughout the country, determination of fairness and reasonableness.
including some in Oklahoma. [Footnote 12]
Surely International Shoe contemplated that the
However, financial benefits accruing to the defendant significance of the contacts necessary to support
from a collateral relation to the forum State will not jurisdiction would diminish if some other consideration
support jurisdiction if they do not stem from a helped establish that jurisdiction would be fair and
constitutionally cognizable contact with that State. In reasonable. The interests of the State and other parties
our view, whatever marginal revenues petitioners may in proceeding with the case in a particular forum are
receive by virtue of the fact that their products are such considerations. McGee v. International Life Ins.,
capable of use in Oklahoma is far too attenuated a for instance, accorded great importance to a State's
contact to justify that State's exercise of in "manifest interest in providing effective means of
personam jurisdiction over them. redress" for its citizens.

Because we find that petitioners have no "contacts, Another consideration is the actual burden a defendant
ties, or relations" with the State of must bear in defending the suit in the forum. McGee,
Oklahoma, International Shoe Co. v. Washington, supra. Because lesser burdens reduce the unfairness to
supra, at 326 U. S. 319, the judgment of the Supreme the defendant, jurisdiction may be justified despite less
Court of Oklahoma is Reversed. significant contacts. The burden, of course, must be of
constitutional dimension. Due process limits on
jurisdiction do not protect a defendant from all
inconvenience of travel, McGee, supra at355 U. S. 224,
and it would not be sensible to make the constitutional
MR. JUSTICE BRENNAN, dissenting. * rule turn solely on the number of miles the defendant
must travel to the courtroom. [Footnote 2/1] Instead,
The Court holds that the Due Process Clause of the the constitutionally significant "burden" to be analyzed
Fourteenth Amendment bars the States from asserting relates to the mobility of the defendant's defense. For
jurisdiction over the defendants in these two cases. In instance, if having to travel to a foreign forum would
each case, the Court so decides because it fails to find hamper the defense because witnesses or evidence or
the "minimum contacts" that have been required the defendant himself were immobile, or if there were
since International Shoe Co. v. Washington, 326 U. S. a disproportionately large number of witnesses or
310, 326 U. S. 316 (1945). Because I believe that the amount of evidence that would have to be transported
Court reads International Shoe and its progeny too at the defendant's expense, or if being away from
narrowly, and because I believe that the standards home for the duration of the trial would work some
enunciated by those cases may already be obsolete as special hardship on the defendant, then the
constitutional boundaries, I dissent. Constitution would require special consideration for the
defendant's interests.
I
That considerations other than contacts between the
forum and the defendant are relevant necessarily
The Court's opinions focus tightly on the existence of means that the Constitution does not require that trial
contacts between the forum and the defendant. In so be held in the State which has the "best contacts" with
doing, they accord too little weight to the strength of the defendant. (BRENNAN, J., dissenting). The
the forum State's interest in the case, and fail to defendant has no constitutional entitlement to the best
explore whether there would be any actual forum or, for that matter, to any particular forum.
inconvenience to the defendant. The essential inquiry Under even the most restrictive view of International
in locating the constitutional limits on state court Shoe, several States could have jurisdiction over a
jurisdiction over absent defendants is whether the particular cause of action. We need only determine
particular exercise of jurisdiction offends "traditional whether the forum States in these cases satisfy the
notions of fair play and substantial justice.' The clear constitutional minimum. [Footnote 2/2]
focus in International Shoe was on fairness and
reasonableness. The Court specifically declined to
establish a mechanical test based on the quantum of II
contacts between a State and the defendant:
In each of these cases, I would find that the forum
"Whether due process is satisfied must depend, rather, State has an interest in permitting the litigation to go
upon the quality and nature of the activity in relation forward, the litigation is connected to the forum, the
to the fair and orderly administration of the laws which defendant is linked to the forum, and the burden of
it was the purpose of the due process clause to defending is not unreasonable. Accordingly, I would
insure. That clause does not contemplate that a state hold that it is neither unfair nor unreasonable to
may make binding a judgment in personam against an require these defendants to defend in the forum State.
individual or corporate defendant with which the state
has no contacts, ties, or relations." A

In No. 78-952, a number of considerations suggest that


Minnesota is an interested and convenient forum. The
action was filed by a bona fide resident of the forum. In sum, I would hold that appellant is not deprived of
[Footnote 2/3] Consequently, Minnesota's interests are due process by being required to submit to trial in
similar to, even if lesser than, the interests of California Minnesota, first because Minnesota has a sufficient
in McGee, supra, "in providing a forum for its residents interest in and connection to this litigation and to the
and in regulating the activities of insurance real and nominal defendants, and second because the
companies" doing business in the State. [Footnote burden on the nominal defendant is sufficiently slight.
2/4] Post at 444 U. S. 332. Moreover, Minnesota has
"attempted to assert [its] particularized interest in B
trying such cases in its courts by . . . enacting a special
jurisdictional statute." As in McGee, a resident forced
to travel to a distant State to prosecute an action In No. 78-1078, the interest of the forum State and its
against someone who has injured him could, for lack of connection to the litigation is strong. The automobile
funds, be entirely unable to bring the cause of action. accident underlying the litigation occurred in
The plaintiff's residence in the State makes the State Oklahoma. The plaintiffs were hospitalized in Oklahoma
one of a very few convenient fora for a personal injury when they brought suit. Essential witnesses and
case (the others usually being the defendant's home evidence were in Oklahoma. See Shaffer v.
State and the State where the accident occurred). Heitner, 433 U.S. at 433 U. S. 208. The State has a
[Footnote 2/5] legitimate interest in enforcing its laws designed to
keep its highway system safe, and the trial can
proceed at least as efficiently in Oklahoma as
In addition, the burden on the defendant is slight. As anywhere else.
Judge Friendly has recognized, Shaffer emphasizes the
importance of identifying the real impact of the lawsuit.
(upholding the constitutionality of jurisdiction in a very The petitioners are not unconnected with the forum.
similar case under New York's law after Shaffer). Here Although both sell automobiles within limited sales
the real impact is on the defendant's insurer, which is territories, each sold the automobile which, in fact, was
concededly amenable to suit in the forum State. The driven to Oklahoma, where it was involved in an
defendant is carefully protected from financial liability accident. [Footnote 2/8] It may be true, as the Court
because the action limits the prayer for damages to suggests, that each sincerely intended to limit its
the insurance policy's liability limit. [Footnote 2/6] The commercial impact to the limited territory, and that
insurer will handle the case for the defendant. The each intended to accept the benefits and protection of
defendant is only a nominal party who need be no the laws only of those States within the territory. But
more active in the case than the cooperation clause of obviously these were unrealistic hopes that cannot be
his policy requires. Because of the ease of airline treated as an automatic constitutional shield. [Footnote
transportation, he need not lose significantly more 2/9]
time than if the case were at home. Consequently, if
the suit went forward in Minnesota, the defendant An automobile simply is not a stationary item or one
would bear almost no burden or expense beyond what designed to be used in one place. An automobile
he would face if the suit were in his home State. The is intended to be moved around. Someone in the
real impact on the named defendant is the same as it business of selling large numbers of automobiles can
is in a direct action against the insurer, which would be hardly plead ignorance of their mobility, or pretend
constitutionally permissible. The only distinction is the that the automobiles stay put after they are sold. It is
formal, "analytica[l] prerequisite, of making the not merely that a dealer in automobiles foresees that
insured a named party. Surely the mere addition of they will move. The dealer actually intends that the
appellant's name to the complaint does not suffice to purchasers will use the automobiles to travel to distant
create a due process violation. [Footnote 2/7] States where the dealer does not directly "do
business." The sale of an automobile
Finally, even were the relevant inquiry whether there does purposefully inject the vehicle into the stream of
are sufficient contacts between the forum and the interstate commerce so that it can travel to distant
named defendant, I would find that such contacts exist. States.
The insurer's presence in Minnesota is an advantage to
the defendant that may well have been a consideration This case is similar to Ohio v. Wyandotte Chemicals
in his selecting the policy he did. An insurer with offices Corp., 401 U. S. 493 (1971). There we indicated, in the
in many States makes it easier for the insured to make course of denying leave to file an original jurisdiction
claims or conduct other business that may become case, that corporations having no direct contact with
necessary while traveling. It is simply not true that Ohio could constitutionally be brought to trial in Ohio
"State Farm's decision to do business in Minnesota was because they dumped pollutants into streams outside
completely adventitious as far as Rush was Ohio's limits which ultimately, through the action of the
concerned." Post at 444 U. S. 328-329. By buying a water, reached Lake Erie and affected Ohio. No
State Farm policy, the defendant availed himself of the corporate acts, only their consequences, occurred in
benefits he might derive from having an insurance Ohio. The stream of commerce is just as natural a force
agent in Minnesota who could, among other things, as a stream of water, and it was equally predictable
facilitate a suit for appellant against a Minnesota that the cars petitioners released would reach distant
resident. It seems unreasonable to read the states. [Footnote 2/10]
Constitution as permitting one to take advantage of his
nationwide insurance network but not to be burdened
by it. The Court accepts that a State may exercise
jurisdiction over a distributor which "serves" that State
"indirectly" by "deliver[ing] its products into the stream
of commerce with the expectation that they will be "In part, this is attributable to the fundamental
purchased by consumers in the forum transformation of our national economy over the years.
State." Ante at 444 U. S. 297-298. It is difficult to see Today, many commercial transactions touch two or
why the Constitution should distinguish between a more States, and may involve parties separated by the
case involving goods which reach a distant State full continent. With this increasing nationalization of
through a chain of distribution and a case involving commerce has come a great increase in the amount of
goods which reach the same State because a business conducted by mail across state lines. At the
consumer, using them as the dealer knew the same time, modern transportation and communication
customer would, took them there. [Footnote 2/11] In have made it much less burdensome for a party sued
each case, the seller purposefully injects the goods to defend himself in a State where he engages in
into the stream of commerce, and those goods economic activity."
predictably are used in the forum State. [Footnote
2/12] As the Court acknowledges, both the nationalization of
commerce and the ease of transportation and
Furthermore, an automobile seller derives substantial communication have accelerated in the generation
benefits from States other than its own. A large part of since 1957. [Footnote 2/13]
the value of automobiles is the extensive, nationwide
network of highways. Significant portions of that The model of society on which the International
network have been constructed by, and are maintained Shoe Court based its opinion is no longer accurate.
by, the individual States, including Oklahoma. The Business people, no matter how local their businesses,
States, through their highway programs, contribute in a cannot assume that goods remain in the business'
very direct and important way to the value of locality. Customers and goods can be anywhere else in
petitioners' businesses. Additionally, a network of other the country, usually in a matter of hours and always in
related dealerships with their service departments a matter of a very few days.
operates throughout the country under the protection
of the laws of the various States, including Oklahoma,
and enhances the value of petitioners' businesses by In answering the question whether or not it is fair and
facilitating their customers' traveling. reasonable to allow a particular forum to hold a trial
binding on a particular defendant, the interests of the
forum State and other parties loom large in today's
Thus, the Court errs in its conclusion, ante at 444 U. S. world, and surely are entitled to as much weight as are
299 (emphasis added), that "petitioners the interests of the defendant. The "orderly
have no contacts, ties, or relations'" with Oklahoma. administration of the laws" provides a firm basis for
There obviously are contacts, and, given Oklahoma's according some protection to the interests of plaintiffs
connection to the litigation, the contacts are and States as well as of defendants. [Footnote 2/14]
sufficiently significant to make it fair and reasonable Certainly, I cannot see how a defendant's right to due
for the petitioners to submit to Oklahoma's jurisdiction. process is violated if the defendant suffers no
inconvenience.
III
The conclusion I draw is that constitutional concepts of
It may be that affirmance of the judgments in these fairness no longer require the extreme concern for
cases would approach the outer limits of International defendants that was once necessary. Rather, as I wrote
Shoe's jurisdictional principle. But that principle, with in dissent from Shaffer v. Heitner, supra, minimum
its almost exclusive focus on the rights of defendants, contacts must exist "among the parties, the contested
may be outdated. As MR. JUSTICE MARSHALL wrote transaction, and the forum State." [Footnote 2/15] The
in Shaffer v. Heitner, contacts between any two of these should not be
determinative.
"'[T]raditional notions of fair play and substantial
justice' can be as readily offended by the perpetuation "[W]hen a suitor seeks to lodge a suit in a State with a
of ancient forms that are no longer justified as by the substantial interest in seeing its own law applied to the
adoption of new procedures. . . ." transaction in question, we could wisely act to
minimize conflicts, confusion, and uncertainty by
International Shoe inherited its defendant focus adopting a liberal view of jurisdiction, unless
from Pennoyer v. Neff, 95 U. S. 714 (1878), and considerations of fairness or efficiency strongly point in
represented the last major step this Court has taken in the opposite direction. [Footnote 2/16]"
the long process of liberalizing the doctrine of personal
jurisdiction. Though its flexible approach represented a 433 U.S. at 433 U. S. 225-226. Mr. Justice Black,
major advance, the structure of our society has dissenting in Hanson v. Denckla, 357 U.S. at 357 U. S.
changed in many significant ways since International 258-250, expressed similar concerns by suggesting
Shoe was decided in 1945. Mr. Justice Black, writing for that a State should have jurisdiction over a case
the Court in McGee v. International Life Ins. Co., growing out of a transaction significantly related to
recognized that "a trend is clearly discernible toward that State
expanding the permissible scope of state jurisdiction
over foreign corporations and other nonresidents." He "unless litigation there would impose such a heavy and
explained the trend as follows: disproportionate burden on a nonresident defendant
that it would offend what this Court has referred to as
'traditional notions of fair play and substantial justice.' [Footnote 2/1]
[Footnote 2/17]"
In fact, a courtroom just across the state line from a
Assuming that a State gives a nonresident defendant defendant may often be far more convenient for the
adequate notice and opportunity to defend, I do not defendant than a courtroom in a distant corner of his
think the Due Process Clause is offended merely own State.
because the defendant has to board a plane to get to
the site of the trial. [Footnote 2/2]

The Court's opinion in No. 78-1078 suggests that the The States themselves, of course, remain free to
defendant ought to be subject to a State's jurisdiction choose whether to extend their jurisdiction to embrace
only if he has contacts with the State "such that he all defendants over whom the Constitution would
should reasonably anticipate being haled into court permit exercise of jurisdiction.
there." [Footnote 2/18] Ante at444 U. S. 297. There is
nothing unreasonable or unfair, however, about
recognizing commercial reality. Given the tremendous [Footnote 2/3]
mobility of goods and people, and the inability of
businessmen to control where goods are taken by The plaintiff asserted jurisdiction pursuant to Minn.Stat.
customers (or retailers), I do not think that the 571.41, subd. 2 (1978), which allows garnishment of
defendant should be in complete control of the an insurer's obligation to defend and indemnify its
geographical stretch of his amenability to suit. insured. See post at 444 U. S. 322-323, n. 3, and
Jurisdiction is no longer premised on the notion that accompanying text. The Minnesota Supreme Court has
nonresident defendants have somehow impliedly interpreted the statute as allowing suit only to the
consented to suit. People should understand that they insurance policy's liability limit. The court has held that
are held responsible for the consequences of their the statute embodies the rule of Seider v. Roth.
actions, and that, in our society, most actions have
consequences affecting many States. When an action
in fact causes injury in another State, the actor should [Footnote 2/4]
be prepared to answer for it there unless defending in
that State would be unfair for some reason other than To say that these considerations are relevant is a far
that a state boundary must be crossed. [Footnote 2/19] cry from saying that they are "substituted for . . .
contacts with the defendant and the cause of
In effect, the Court is allowing defendants to assert the action." Post at 444 U. S. 332. The forum's interest in
sovereign rights of their home States. The expressed the litigation is an independent point of inquiry even
fear is that, otherwise, all limits on personal jurisdiction under traditional readings of International
would disappear. But the argument's premise is wrong. Shoe's progeny. If there is a shift in focus, it is not away
I would not abolish limits on jurisdiction or strip state from "the relationship among the defendant, the
boundaries of all significance, see Hanson, forum, and the litigation." Post at 444 U. S.
supra at 357 U. S. 260 (Black, J., dissenting); I would 332 (emphasis added). Instead, it is a shift within the
still require the plaintiff to demonstrate sufficient same accepted relationship from the
contacts among the parties, the forum, and the connections between the defendant and the forum to
litigation to make the forum a reasonable State in those between the forum and the litigation.
which to hold the trial. [Footnote 2/20]
[Footnote 2/5]
I would also, however, strip the defendant of an
unjustified veto power over certain very appropriate In every International Shoe inquiry, the defendant,
fora -- a power the defendant justifiably enjoyed long necessarily, is outside the forum State. Thus, it is
ago when communication and travel over long inevitable that either the defendant or the plaintiff will
distances were slow and unpredictable and when be inconvenienced. The problem existing at the time
notions of state sovereignty were impractical and of Pennoyer v. Neff, 95 U. S. 714(1878), that a resident
exaggerated. But I repeat that that is not today's plaintiff could obtain a binding judgment against an
world. If a plaintiff can show that his chosen forum unsuspecting, distant defendant, has virtually
State has a sufficient interest in the litigation (or disappeared in this age of instant communication and
sufficient contacts with the defendant), then the virtually instant travel.
defendant who cannot show some real injury to a
constitutionally protected interest, see O'Connor v.
[Footnote 2/6]
Lee-Hy Paving Corp., 579 F.2d at 201, should have no
constitutional excuse not to appear. [Footnote 2/21]
It is true that the insurance contract is not the subject
of the litigation. Post at 444 U. S. 329. But one of the
The plaintiffs in each of these cases brought suit in a
undisputed clauses of the insurance policy is that the
forum with which they had significant contacts and
insurer will defend this action and pay any damages
which had significant contacts with the litigation. I am
assessed, up to the policy limit. The very purpose of
not convinced that the defendants would suffer any
the contract is to relieve the insured from having to
"heavy and disproportionate burden" in defending the
defend himself, and, under the state statute, there
suits. Accordingly, I would hold that the Constitution
could be no suit absent the insurance contract. Thus, in
should not shield the defendants from appearing and
defending in the plaintiffs' chosen fora.
a real sense, the insurance contract is the source of the revenue passenger-miles flown on domestic and
suit. international flights increased by nearly three orders of
magnitude between 1945 (450 million) and 1976 (179
[Footnote 2/7] billion). U.S. Department of Commerce, Historical
Statistics of the United States, pt. 2, P. 770 (1975); U.S.
Department of Commerce, Statistical Abstract of the
Were the defendant a real party subject to actual United States 670 (1978). Automobile vehicle-miles
liability, or were there significant noneconomic (including passenger cars, buses, and trucks) driven in
consequences such as those suggested by the Court's the United States increased by a relatively modest
note 20, a more substantial connection with the forum 500% during the same period, growing from 250 billion
State might well be constitutionally required. in 1945 to 1,409 billion in 1976.

[Footnote 2/8] [Footnote 2/14]

On the basis of this fact, the state court inferred that The Court has recognized that there are cases where
the petitioners derived substantial revenue from goods the interests of justice can turn the focus of the
used in Oklahoma. The inference is not without jurisdictional inquiry away from the contacts between a
support. Certainly, were use of goods accepted as a defendant and the forum State. For instance, the Court
relevant contact, a plaintiff would not need to have an indicated that the requirement of contacts may be
exact count of the number of petitioners' cars that are greatly relaxed (if indeed any personal contacts would
used in Oklahoma. be required) where a plaintiff is suing a nonresident
defendant to enforce a judgment procured in another
[Footnote 2/9] State.

Moreover, imposing liability in this case would not so [Footnote 2/15]


undermine certainty as to destroy an automobile
dealer's ability to do business. According jurisdiction In some cases, the inquiry will resemble the inquiry
does not expand liability except in the marginal case commonly undertaken in determining which State's law
where a plaintiff cannot afford to bring an action to apply. That it is fair to apply a State's law to a
except in the plaintiff's own State. In addition, these nonresident defendant is clearly relevant in
petitioners are represented by insurance companies. determining whether it is fair to subject the defendant
They not only could, but did, purchase insurance to to jurisdiction in that State.
protect them should they stand trial and lose the case.
The costs of the insurance no doubt are passed on to
customers. [Footnote 2/16]

[Footnote 2/10] Such a standard need be no more uncertain than the


Court's test

One might argue that it was more predictable that the


pollutants would reach Ohio than that one of "in which few answers will be written 'in black and
petitioners' cars would reach Oklahoma. The Court's white. The greys are dominant and even among them
analysis, however, excludes jurisdiction in a contiguous the shades are innumerable.'
State such as Pennsylvania as surely as in more distant
States such as Oklahoma. [Footnote 2/17]

[Footnote 2/11] This strong emphasis on the State's interest is nothing


new. This Court, permitting the forum to exercise
For example, I cannot understand the constitutional jurisdiction over nonresident claimants to a trust
distinction between selling an item in New Jersey and largely on the basis of the forum's interest in closing
selling an item in New York expecting it to be used in the trust, stated:
New Jersey.
"[T]he interest of each state in providing means to
[Footnote 2/12] close trusts that exist by the grace of its laws and are
administered under the supervision of its courts is so
insistent and rooted in custom as to establish beyond
The manufacturer in the case cited by the Court, Gray doubt the right of its courts to determine the interests
v. American Radiator & Standard Sanitary Corp., 22 of all claimants, resident or nonresident, provided its
Ill.2d 432, 176 N.E.2d 761 (1961), had no more control procedure accords full opportunity to appear and be
over which States its goods would reach than did the heard."
petitioners in this case.
[Footnote 2/18]
[Footnote 2/13]
The Court suggests that this is the critical
Statistics help illustrate the amazing expansion in foreseeability rather than the likelihood that the
mobility since International Shoe. The number of product will go to the forum State. But the reasoning
begs the question. A defendant cannot know if his "respondents seek to base jurisdiction on one, isolated
actions will subject him to jurisdiction in another State occurrence and whatever inferences can be drawn
until we have declared what the law of jurisdiction is. therefrom: the fortuitous circumstance that a single
Audi automobile, sold in New York to New York
[Footnote 2/19] residents, happened to suffer an accident while
passing through Oklahoma."

One consideration that might create some unfairness


would be if the choice of forum also imposed on the If that were the case, I would readily agree that the
defendant an unfavorable substantive law which the minimum contacts necessary to sustain jurisdiction are
defendant could justly have assumed would not not present. But the basis for the assertion of
apply. See n. 15, supra. jurisdiction is not the happenstance that an individual
over whom petitioners had no control made a
unilateral decision to take a chattel with him to a
[Footnote 2/20] distant State. Rather, jurisdiction is premised on the
deliberate and purposeful actions of the defendants
For instance, in No. 78-952, if the plaintiff were not a themselves in choosing to become part of a
bona fide resident of Minnesota when the suit was filed nationwide, indeed a global, network for marketing and
or if the defendant were subject to financial liability, I servicing automobiles.
might well reach a different result. In No. 78-1078, I
might reach a different result if the accident had not Petitioners are sellers of a product whose utility derives
occurred in Oklahoma. from its mobility. The unique importance of the
automobile in today's society, which is discussed in
[Footnote 2/21] MR. JUSTICE BLACKMUN's dissenting
opinion, post at 444 U. S. 318, needs no further
elaboration. Petitioners know that their customers buy
Frequently, of course, the defendant will be able to cars not only to make short trips, but also to travel
influence the choice of forum through traditional long distances. In fact, the nationwide service network
doctrines, such as venue or forum non with which they are affiliated was designed to facilitate
conveniens, permitting the transfer of litigation. and encourage such travel. Seaway would be unlikely
(BRENNAN, J., dissenting). to sell many cars if authorized service were available
only in Massena, N.Y. Moreover, local dealers normally
MR. JUSTICE MARSHALL, with whom MR. JUSTICE derive a substantial portion of their revenues from their
BLACKMUN joins, dissenting. service operations, and thereby obtain a further
economic benefit from the opportunity to service cars
which were sold in other States. It is apparent that
For over 30 years, the standard by which to measure
petitioners have not attempted to minimize the chance
the constitutionally permissible reach of state court
that their activities will have effects in other States; on
jurisdiction has been well established:
the contrary, they have chosen to do business in a way
that increases that chance, because it is to their
"[D]ue process requires only that in order to subject a economic advantage to do so.
defendant to a judgment in personam, if he be not
present within the territory of the forum, he have
To be sure, petitioners could not know in advance that
certain minimum contacts with it such that the
this particular automobile would be driven to
maintenance of the suit does not offend 'traditional
Oklahoma. They must have anticipated, however, that
notions of fair play and substantial justice.'"
a substantial portion of the cars they sold would travel
out of New York. Seaway, a local dealer in the second
The corollary, that the Due Process Clause forbids the most populous State, and World-Wide, one of only
assertion of jurisdiction over a defendant "with which seven regional Audi distributors in the entire
the state has no contacts, ties, or relations," 326 U.S. country, see Brief for Respondents 2, would scarcely
at 326 U. S. 319, is equally clear. The concepts of have been surprised to learn that a car sold by then
fairness and substantial justice as applied to an had been driven in Oklahoma on Interstate 44, a
evaluation of "the quality and nature of the heavily traveled transcontinental highway. In the case
[defendant's] activity," ibid., are not readily susceptible of the distributor, in particular, the probability that
of further definition, however, and it is not surprising some of the cars it sells will be driven in every one of
that the constitutional standard is easier to state than the contiguous States must amount to a virtual
to apply. certainty. This knowledge should alert a reasonable
businessman to the likelihood that a defect in the
This is a difficult case, and reasonable minds may differ product might manifest itself in the forum State -- not
as to whether respondents have alleged a sufficient because of some unpredictable, aberrant, unilateral
"relationship among the defendant[s], the forum, and action by a single buyer, but in the normal course of
the litigation," Shaffer v. Heitner, 433 U. S. 186, 433 U. the operation of the vehicles for their intended
S. 204 (1977), to satisfy the requirements purpose.
of International Shoe. I am concerned, however, that
the majority has reached its result by taking an It is misleading for the majority to characterize the
unnecessarily narrow view of petitioners' forum-related argument in favor of jurisdiction as one of
conduct. The majority asserts that "foreseeability' alone." Ante at444 U. S. 295. As
economic entities, petitioners reach out from New
York, knowingly causing effects in other States and no economic advantage. Commercial activity is more
receiving economic advantage both from the ability to likely to cause effects in a larger sphere, and the actor
cause such effects themselves and from the activities derives an economic benefit from the activity that
of dealers and distributors in other States. While they makes it fair to require him to answer for his conduct
did not receive revenue from making direct sales in where its effects are felt. The profits may be used to
Oklahoma, they intentionally became part of an pay the costs of suit, and, knowing that the activity is
interstate economic network, which included likely to have effects in other States, the defendant can
dealerships in Oklahoma, for pecuniary gain. In light of readily insure against the costs of those effects,
this purposeful conduct, I do not believe it can be said thereby sparing himself much of the inconvenience of
that petitioners "had no reason to expect to be haled defending in a distant forum.
before a[n Oklahoma] court."
Of course, the Constitution forbids the exercise of
The majority apparently acknowledges that, if a jurisdiction if the defendant had no judicially
product is purchased in the forum State by a cognizable contacts with the forum. But as the majority
consumer, that State may assert jurisdiction over acknowledges, if such contacts are present, the
everyone in the chain of distribution. With this I agree. jurisdictional inquiry requires a balancing of various
But I cannot agree that jurisdiction is necessarily interests and policies. I believe such contacts are to be
lacking if the product enters the State not through the found here, and that, considering all of the interests
channels of distribution but in the course of its and policies at stake, requiring petitioners to defend
intended use by the consumer. We have recognized the this action in Oklahoma is not beyond the bounds of
role played by the automobile in the expansion of our the Constitution. Accordingly, I dissent.
notions of personal jurisdiction. Unlike most other
chattels, which may find their way into States far from * Similarly, I believe the Court in Hanson v. Denckla,
where they were purchased because their owner takes was influenced by the fact that trust administration has
them there, the intended use of the automobile is traditionally been considered a peculiarly local activity.
precisely as a means of traveling from one place to
another. In such a case, it is highly artificial to restrict
the concept of the "stream of commerce" to the chain MR JUSTICE BLACKMUN, dissenting.
of distribution from the manufacturer to the ultimate
consumer. I confess that I am somewhat puzzled why the plaintiffs
in this litigation are so insistent that the regional
I sympathize with the majority's concern that persons distributor and the retail dealer, the petitioners here,
ought to be able to structure their conduct so as not to who handled the ill-fated Audi automobile involved in
be subject to suit in distant forums. But that may not this litigation, be named defendants. It would appear
always be possible. Some activities, by their very that the manufacturer and the importer, whose
nature, may foreclose the option of conducting them in subjectability to Oklahoma jurisdiction is not
such a way as to avoid subjecting oneself to challenged before this Court, ought not to be
jurisdiction in multiple forums. This is by no means to judgment-proof. It may, of course, ultimately amount to
say that all sellers of automobiles should be subject to a contest between insurance companies that, once
suit everywhere; but a distributor of automobiles to a begun, is not easily brought to a termination. Having
multistate market and a local automobile dealer who made this much of an observation, I pursue it no
makes himself part of a nationwide network of further.
dealerships can fairly expect that the cars they sell
may cause injury in distant States and that they may For me, a critical factor in the disposition of the
be called on to defend a resulting lawsuit there. litigation is the nature of the instrumentality under
consideration. It has been said that we are a nation on
In light of the quality and nature of petitioners' activity, wheels. What we are concerned with here is the
the majority's reliance on Kulko v. California Superior automobile and its peripatetic character. One need
Court, supra, is misplaced. Kulko involved the assertion only examine our national network of interstate
of state court jurisdiction over a nonresident individual highways, or make an appearance on one of them, or
in connection with an action to modify his child custody observe the variety of license plates present not only
rights and support obligations. His only contact with on those highways but in any metropolitan area, to
the forum State was that he gave his minor child realize that any automobile is likely to wander far from
permission to live there with her mother. In holding its place of licensure or from its place of distribution
that the exercise of jurisdiction violated the Due and retail sale. Miles per gallon on the highway (as well
Process Clause, we emphasized that the cause of as in the city) and mileage per tankful are familiar
action, as well as the defendant's actions in relation to allegations in manufacturers' advertisements today. To
the forum State, arose "not from the defendant's expect that any new automobile will remain in the
commercial transactions in interstate commerce, but vicinity of its retail sale -- like the 1914 electric car
rather from his personal, domestic relations," driven by the proverbial "little old lady" -- is to blink at
contrasting Kulko's actions with those of the insurance reality. The automobile is intended for distance, as well
company in McGee v. International Life Ins. Co., were as for transportation within a limited area.
undertaken for commercial benefit.*
It therefore seems to me not unreasonable -- and
Manifestly, the "quality and nature" of commercial certainly not unconstitutional and beyond the reach of
activity is different, for purposes of the International the principles laid down in International Shoe Co. v.
Shoe test, from actions from which a defendant obtains Washington, and its progeny -- to uphold Oklahoma
jurisdiction over this New York distributor and this New
York dealer when the accident happened in Oklahoma.
I see nothing more unfair for them than for the
manufacturer and the importer. All are in the business
of providing vehicles that spread out over the highways
of our several States. It is not too much to anticipate,
at the time of distribution and at the time of retail sale,
that this Audi would be in Oklahoma. Moreover, in
assessing "minimum contacts," foreseeable use in
another State seems to me to be little different from
foreseeable resale in another State: yet the Court
declares this distinction determinative.

MR. JUSTICE BRENNAN points out in his


dissent, ante at 444 U. S. 307, that an automobile
dealer derives substantial benefits from States other
than its own. The same is true of the regional
distributor. Oklahoma does its best to provide safe
roads. Its police investigate accidents. It regulates
driving within the State. It provides aid to the victim,
and thereby, it is hoped, lessens damages. Accident
reports are prepared and made available. All this
contributes to and enhances the business of those
engaged professionally in the distribution and sale of
automobiles. All this also may benefit defendants in
the very lawsuits over which the State asserts
jurisdiction.

My position need not now take me beyond the


automobile and the professional who does business by
way of distributing and retailing automobiles. Cases
concerning other instrumentalities will be dealt with as
they arise, and in their own contexts.

I would affirm the judgment of the Supreme Court of


Oklahoma. Because the Court reverses that judgment,
it will now be about parsing every variant in the myriad
of motor vehicle fact situations that present
themselves. Some will justify jurisdiction and others
will not. All will depend on the "contact" that the Court
sees fit to perceive in the individual case.
JURISDICTION OVER THE SUBJECT 2. The propriety of the taking was not governed by
New York law, since the sugar itself was expropriated.
MATTER
3. This suit is not uncognizable in American courts as
being one to enforce the "public" acts of a foreign
state, since the expropriation law here involved had
Banco Nacional de Cuba v. Sabbatino, 376 U.S. been fully executed within Cuba.
398 (1964)
4. The Government's uncontested assertion that the
Argued October 22-23, 1963 Decided March 23, two State Department letters expressed only the then
1964 wish of the Department to avoid commenting on the
litigation, obviates the need for this Court to pass upon
the "Bernstein exception" to the act of state doctrine,
CERTIORARI TO THE UNITED STATES COURT OF under which a court may respond to a representation
APPEALS by the Executive Branch that, in particular
circumstances, it does not oppose judicial
FOR THE SECOND CIRCUIT consideration of the foreign state's act.

Syllabus 5. The scope of the act of state doctrine must be


determined according to federal law.
Respondent American commodity broker contracted
with a Cuban corporation largely owned by United 6. The act of state doctrine applies and is desirable
States residents to buy Cuban sugar. Thereafter, with regard to a foreign expropriation even though the
subsequent to the United States Government's expropriation allegedly violates customary
reduction of the Cuban sugar quota, the Cuban international law.
Government expropriated the corporation's property
and rights. To secure consent for shipment of the (a) Disagreement exists as to relevant standards of
sugar, the broker, by a new contract, agreed to make international law concerning a State's responsibility
payment for the sugar to a Cuban instrumentality toward aliens.
which thereafter assigned the bills of lading to
petitioner, another Cuban instrumentality, and
petitioner instructed its agent in New York to deliver to (b) The political branch can more effectively deal with
the broker the bills of lading and sight draft in return expropriation than can the Judicial Branch.
for payment. The broker accepted the documents,
received payment for the sugar from its customer, but (c) Conflicts between the Judicial and Executive
refused to deliver the proceeds to petitioner's agent. Branches could hardly be avoided were the judiciary to
Petitioner brought this action for conversion of the bills adjudicate with respect to the validity of
of lading to recover payment from the broker and to expropriations. Even if the combination alleged in this
enjoin from exercising dominion over the proceeds a case of retaliation, discrimination, and inadequate
receiver who had been appointed by a state court to compensation made the expropriation here violative of
protect the New York assets of the corporation. The international law, a judicial determination to that effect
District Court concluded that the corporation's property would still be unwise as involving potential conflict with
interest in the sugar was subject to Cuba's territorial or embarrassment to the Executive Branch in later
jurisdiction, and acknowledged the "act of state" litigation.
doctrine, which precludes judicial inquiry in this
country respecting the public acts of a recognized
foreign sovereign power committed within its own 7. A foreign country's status as a plaintiff does not
territory. The court nevertheless rendered summary make the act of state doctrine inapplicable.
judgment against the petitioner, ruling that the act of
state doctrine was inapplicable when the questioned 307 F. 2d 845 reversed and remanded.
act violated international law, which the District Court
found had been the case here. The Court of Appeals MR. JUSTICE HARLAN delivered the opinion of the
affirmed, additionally relying upon two State Court.
Department letters which it took as evidencing
willingness by the Executive Branch to a judicial testing
of the validity of the expropriation. The question which brought this case here, and is now
found to be the dispositive issue, is whether the so-
called act of state doctrine serves to sustain
Held: petitioner's claims in this litigation. Such claims are
ultimately founded on a decree of the Government of
1. The privilege of resorting to United States courts Cuba expropriating certain property, the right to the
being available to a recognized sovereign power not at proceeds of which is here in controversy. The act of
war with the United States, and not being dependent state doctrine in its traditional formulation precludes
upon reciprocity of treatment, petitioner has access to the courts of this country from inquiring into the
the federal courts. validity of the public acts a recognized foreign
sovereign power committed within its own territory.
I payment. Societe Generale's initial tender of the
documents was refused by Farr, Whitlock, which on the
In February and July of 1960, respondent Farr, Whitlock same day was notified of C.A.V.'s claim that, as rightful
& Co., an American commodity broker, contracted to owner of the sugar, it was entitled to the proceeds. In
purchase Cuban sugar, free alongside the steamer, return for a promise not to turn the funds over to
from a wholly owned subsidiary of Compania Azucarera petitioner or its agent, C.A.V. agreed to indemnify Farr,
Vertientes-Camaguey de Cuba (C.A.V.), a corporation Whitlock for any loss. Farr, Whitlock subsequently
organized under Cuban law whose capital stock was accepted the shipping documents, negotiated the bills
owned principally by United States residents. Farr, of lading to its customer, and received payment for the
Whitlock agreed to pay for the sugar in New York upon sugar. It refused, however, to hand over the proceeds
presentation of the shipping documents and a sight to Societe Generale. Shortly thereafter, Farr, Whitlock
draft. was served with an order of the New York Supreme
Court, which had appointed Sabbatino as Temporary
Receiver of C.A.V.'s New York assets, enjoining it from
On July 6, 1960, the Congress of the United States taking any action in regard to the money claimed by
amended the Sugar Act of 1948 to permit a C.A.V. that might result in its removal from the State.
presidentially directed reduction of the sugar quota for Following this, Farr, Whitlock, pursuant to court order,
Cuba. On the same day, President Eisenhower transferred the funds to Sabbatino, to abide the event
exercised the granted power. The day of the of a judicial determination as to their ownership.
congressional enactment, the Cuban Council of
Ministers adopted "Law No. 851," which characterized
this reduction in the Cuban sugar quota as an act of Petitioner then instituted this action in the Federal
"aggression, for political purposes" on the part of the District Court for the Southern District of New York.
United States, justifying the taking of countermeasures Alleging conversion of the bills of lading it sought to
by Cuba. The law gave the Cuban President and Prime recover the proceeds thereof from Farr, Whitlock and to
Minister discretionary power to nationalize by forced enjoin the receiver from exercising any dominion over
expropriation property or enterprises in which such proceeds. Upon motions to dismiss and for
American nationals had an interest. Although a system summary judgment, the District Court, 193 F.Supp.
of compensation was formally provided, the possibility 375, sustained federal in personam jurisdiction despite
of payment under it may well be deemed illusory. Our state control of the funds. It found that the sugar was
State Department has described the Cuban law as located within Cuban territory at the time of
expropriation, and determined that, under merchant
law common to civilized countries, Farr, Whitlock could
"manifestly in violation of those principles of not have asserted ownership of the sugar against
international law which have long been accepted by C.A.V. before making payment. It concluded that C.A.V.
the free countries of the West. It is in its essence had a property interest in the sugar subject to the
discriminatory, arbitrary and confiscatory. territorial jurisdiction of Cuba. The court then dealt
with the question of Cuba's title to the sugar, on which
Between August 6 and August 9, 1960, the sugar rested petitioner's claim of conversion. While
covered by the contract between Farr, Whitlock and acknowledging the continuing vitality of the act of
C.A.V. was loaded, destined for Morocco, onto the state doctrine, the court believed it inapplicable when
S.S. Hornfels, which was standing offshore at the the questioned foreign act is in violation of
Cuban port of Jucaro (Santa Maria). On the day loading international law. Proceeding on the basis that a taking
commenced, the Cuban President and Prime Minister, invalid under international law does not convey good
acting pursuant to Law No. 851, issued Executive title, the District Court found the Cuban expropriation
Power Resolution No. 1. It provided for the compulsory decree to violate such law in three separate respects: it
expropriation of all property and enterprises, and of was motivated by a retaliatory, and not a public,
rights and interests arising therefrom, of certain listed purpose; it discriminated against American nationals;
companies, including C.A.V., wholly or principally and it failed to provide adequate compensation.
owned by American nationals. The preamble reiterated Summary judgment against petitioner was accordingly
the alleged injustice of the American reduction of the granted.
Cuban sugar quota and emphasized the importance of
Cuba's serving as an example for other countries to The Court of Appeals, 307 F.2d 845, affirming the
follow "in their struggle to free themselves from the decision on similar grounds, relied on two letters (not
brutal claws of Imperialism." In consequence of the before the District Court) written by State Department
resolution, the consent of the Cuban Government was officers which it took as evidence that the Executive
necessary before a ship carrying sugar of a named Branch had no objection to a judicial testing of the
company could leave Cuban waters. In order to obtain Cuban decree's validity. The court was unwilling to
this consent, Farr, Whitlock, on August 11, entered into declare that any one of the infirmities found by the
contracts, identical to those it had made with C.A.V., District Court rendered the taking invalid under
with the Banco Para el Comercio Exterior de Cuba, an international law, but was satisfied that, in
instrumentality of the Cuban Government. The combination, they had that effect. We granted
S.S. Hornfels sailed for Morocco on August 12. certiorari because the issues involved bear importantly
on the conduct of the country's foreign relations and,
Banco Exterior assigned the bills of lading to petitioner, more particularly, on the proper role of the Judicial
also an instrumentality of the Cuban Government, Branch in this sensitive area. For reasons to follow, we
which instructed its agent in New York, Societe decide that the judgment below must be reversed.
Generale, to deliver the bills and a sight draft in the
sum of $175,250.69 to Farr, Whitlock in return for
Subsequent to the decision of the Court of Appeals, the relationship, short of war, with a recognized sovereign
C.A.V. receivership was terminated by the State power as embracing the privilege of resorting to United
Supreme Court; the funds in question were placed in States courts. Although the severance of diplomatic
escrow, pending the outcome of this suit. C.A.V. has relations is an overt act with objective significance in
moved in this Court to be substituted as a party in the the dealings of sovereign states, we are unwilling to
place of Sabbatino. Although it is true that Sabbatino's say that it should inevitably result in the withdrawal of
defensive interest in this litigation has largely, if not the privilege of bringing suit. Severance may take
entirely, reflected that of C.A.V., this is true also of Farr, place for any number of political reasons, its duration is
Whitlock's position. There is no indication that Farr, unpredictable, and whatever expression of animosity it
Whitlock has not adequately represented C.A.V.'s may imply does not approach that implicit in a
interest or that it will not continue to do so. Moreover, declaration of war.
insofar as disposition of the case here is concerned,
C.A.V. has been permitted as amicus to brief and argue It is perhaps true that nonrecognition of a government
its position before this Court. In these circumstances, in certain circumstances may reflect no greater
we are not persuaded that the admission of C.A.V. as a unfriendliness than the severance of diplomatic
party is necessary at this stage to safeguard any claim relations with a recognized government, but the refusal
either that it has already presented or that it may to recognize has a unique legal aspect. It signifies this
present in the future course of this litigation. country's unwillingness to acknowledge that the
Accordingly, we are constrained to deny C.A.V.'s motion government in question speaks as the sovereign
to be admitted as a party, without prejudice however authority for the territory it purports to control. Political
to the renewal of such a motion in the lower courts if it recognition is exclusively a function of the Executive.
appears that C.A.V.'s interests are not adequately The possible incongruity of judicial "recognition," by
represented by Farr, Whitlock, and that the granting of permitting suit, of a government not recognized by the
such a motion will not disturb federal jurisdiction. Executive is completely absent when merely diplomatic
Before considering the holding below with respect to relations are broken.
the act of state doctrine, we must deal with narrower
grounds urged for dismissal of the action or for a
judgment on the merits in favor of respondents. The view that the existing situation between the United
States and Cuba should not lead to a denial of status to
sue is buttressed by the circumstance that none of the
II acts of our Government has been aimed at closing the
courts of this country to Cuba, and more particularly by
It is first contended that this petitioner, an the fact that the Government has come to the support
instrumentality of the Cuban Government, should be of Cuba's "act of state" claim in this very litigation.
denied access to American courts because Cuba is an
unfriendly power, and does not permit nationals of this Respondents further urge that reciprocity of treatment
country to obtain relief in its courts. Even though the is an essential ingredient of comity generally, and,
respondents did not raise this point in the lower courts, therefore, of the privilege of foreign states to bring suit
we think it should be considered here. If the courts of here. Although Hilton v. Guyot, contains some broad
this country should be closed to the government of a language about the relationship of reciprocity to
foreign state, the underlying reason is one of national comity, the case in fact imposed a requirement of
policy transcending the interests of the parties to the reciprocity only in regard to conclusiveness of
action, and this Court should give effect to that judgments, and even then only in limited
policy sua sponte, even at this stage of the litigation. circumstances. In Direction der Disconto-Gesellschaft
v. United States Steel Corp., 300 F. 741, 747
Under principles of comity governing this country's (D.C.S.D.N.Y.), Judge Learned Hand pointed out that the
relations with other nations, sovereign states and doctrine of reciprocity has apparently been confined to
allowed to sue in the courts of the United States. This foreign judgments.
Court has called "comity" in the legal sense "neither a
matter of absolute obligation, on the one hand, nor of There are good reasons for declining to extend the
mere courtesy and good will, upon the other." Although principle to the question of standing of sovereign
comity is often associated with the existence of states to sue. Whether a foreign sovereign will be
friendly relations between states, prior to some recent permitted to sue involves a problem more sensitive
lower court cases which have questioned the right of politically than whether the judgments of its courts
instrumentalities of the Cuban Government to sue in may be reexamined, and the possibility of
our courts, the privilege of suit has been denied only to embarrassment to the Executive Branch in handling
governments at war with the United States. foreign relations is substantially more acute.
Reexamination of judgments, in principle, reduces,
Respondents, pointing to the severance of diplomatic rather than enhances, the possibility of injustice's
relations, commercial embargo, and freezing of Cuban being done in a particular case; refusal to allow suit
assets in this country, contend that relations between makes it impossible for a court to see that a particular
the United States and Cuba manifest such animosity dispute is fairly resolved. The freezing of Cuban assets
that unfriendliness is clear, and that the courts should exemplifies the capacity of the political branches to
be closed to the Cuban Government. We do not agree. assure, through a variety of techniques, that the
This Court would hardly be competent to undertake national interest is protected against a country which is
assessments of varying degrees of friendliness or its thought to be improperly denying the rights of United
absence, and, lacking some definite touchstone for States citizens.
determination, we are constrained to consider any
Furthermore, the question whether a country gives res depends not upon the doctrine here invoked, but upon
judicata effect to United States judgments presents a the act of state doctrine discussed in the succeeding
relatively simple inquiry. The precise status of the sections of this opinion.
United States Government and its nationals before
foreign courts is much more difficult to determine. To IV
make such an investigation significant, a court would
have to discover not only what is provided by the
formal structure of the foreign judicial system, but also The classic American statement of the act of state
what the practical possibilities of fair treatment are. doctrine, which appears to have taken root in England
The courts, whose powers to further the national as early as 1674, Blad v. Bamfield, 3 Swans. 604, 36
interest in foreign affairs are necessarily circumscribed Eng.Rep. 992, and began to emerge in the
as compared with those of the political branches, can jurisprudence of this country in the late eighteenth and
best serve the rule of law by not excluding otherwise early nineteenth centuries, is found in Underhill v.
proper suitors because of deficiencies in their legal Hernandez, Chief Justice Fuller said for a unanimous
systems. Court:

We hold that this petitioner is not barred from access "Every sovereign state is bound to respect the
to the federal courts. independence of every other sovereign state, and the
courts of one country will not sit in judgment on the
acts of the government of another, done within its own
III territory. Redress of grievances by reason of such acts
must be obtained through the means open to be
Respondents claimed in the lower courts that Cuba had availed of by sovereign powers as between
expropriated merely contractual rights the situs of themselves."
which was in New York, and that the propriety of the
taking was, therefore, governed by New York law. The Following this precept, the Court in that case refused to
District Court rejected this contention on the basis of inquire into acts of Hernandez, a revolutionary
the right of ownership possessed by C.A.V. against Farr, Venezuelan military commander whose government
Whitlock prior to payment for the sugar. That the sugar had been later recognized by the United States, which
itself was expropriated, rather than a contractual were made the basis of a damage action in this
claim, is further supported by Cuba's refusal to let the country by Underhill, an American citizen, who claimed
S.S. Hornfels sail until a new contract had been signed. that he had had unlawfully assaulted, coerced, and
Had the Cuban decree represented only an attempt to detained in Venezuela by Hernandez.
expropriate a contractual right of C.A.V., the forced
delay of shipment and Farr, Whitlock's subsequent
contract with petitioner's assignor would have been None of this Court's subsequent cases in which the act
meaningless. Neither the District Court's finding of state doctrine was directly or peripherally involved
concerning the location of the S.S. Hornfels nor its manifest any retreat from Underhill.
conclusion that Cuba had territorial jurisdiction to
expropriate the sugar, acquiesced in by the Court of On the contrary, in two of these
Appeals, is seriously challenged here. Respondents' cases, Oetjen and Ricaud, the doctrine as announced
limited view of the expropriation must be rejected. in Underhill was reaffirmed in unequivocal terms.

Respondents further contend that, if the expropriation Oetjen involved a seizure of hides from a Mexican
was of the sugar itself, this suit then becomes one to citizen as a military levy by General Villa, acting for the
enforce the public law of a foreign state, and, as such, forces of General Carranza, whose government was
is not cognizable in the courts of this country. They rely recognized by this country subsequent to the trial but
on the principle enunciated in federal and state cases prior to decision by this Court. The hides were sold to a
that a court need not give effect to the penal or Texas corporation which shipped them to the United
revenue laws of foreign countries or sister states. States and assigned them to defendant. As assignee of
the original owner, plaintiff replevied the hides,
The extent to which this doctrine may apply to other claiming that they had been seized in violation of the
kinds of public laws, though perhaps still an open Hague Conventions. In affirming a judgment for
question, need not be decided in this case. For we defendant, the Court suggested that the rules of the
have been referred to no authority which suggests that Conventions did not apply to civil war, and that, even if
the doctrine reaches a public law which, as here, has they did, the relevant seizure was not in violation of
been fully executed within the foreign state. Cuba's them. Nevertheless, it chose to rest its decision on
restraint of the S.S. Hornfels must be regarded for other grounds. It described the designation of the
these purposes to have constituted an effective taking sovereign as a political question to be determined by
of the sugar, vesting in Cuba C.A.V.'s property right in the Legislative and Executive Departments, rather than
it. Farr, Whitlock's contract with the Cuban bank, the Judicial Department, invoked the established rule
however compelled to sign Farr, Whitlock may have that such recognition operates retroactively to validate
felt, represented indeed a recognition of Cuba's past acts, and found the basic tenet of Underhill to be
dominion over the property. applicable to the case before it.

In these circumstances the question whether the rights "The principle that the conduct of one independent
acquired by Cuba are enforceable in our courts government cannot be successfully questioned in the
courts of another is as applicable to a case involving written for the purpose of relieving the court from any
the title to property brought within the custody of a constraint upon the exercise of its jurisdiction to pass
court, such as we have here, as it was held to be to the on that question.
cases cited, in which claims for damages were based
upon acts done in a foreign country, for its rests at last This Court has never had occasion to pass upon the so-
upon the highest considerations of international comity called Bernstein exception, nor need it do so now. For
and expediency. To permit the validity of the acts of whatever ambiguity may be thought to exist in the two
one sovereign state to be reexamined and perhaps letters from State Department officials on which the
condemned by the courts of another would very Court of Appeals relied , is now removed by the
certainly 'imperil the amicable relations between position which the Executive has taken in this Court on
governments and vex the peace of nations.'" the act of state claim; respondents do not, indeed,
contest the view that these letters were intended to
In Ricaud, the facts were similar -- another general of reflect no more than the Department's then wish not to
the Carranza forces seized lead bullion as a military make any statement bearing on this litigation.
levy -- except that the property taken belonged to an
American citizen. The Court found Underhill, American The outcome of this case, therefore, turns upon
Banana, and Oetjen controlling. Commenting on the whether any of the contentions urged by respondents
nature of the principle established by those cases, the against the application of the act of state doctrine in
opinion stated that the rule the premises is acceptable: (1) that the doctrine does
not apply to acts of state which violate international
"does not deprive the courts of jurisdiction once law, as is claimed to be the case here; (2) that the
acquired over a case. It requires only that when it is doctrine is inapplicable unless the Executive
made to appear that the foreign government has acted specifically interposes it in a particular case; and (3)
in a given way on the subject matter of the litigation, that, in any event, the doctrine may not be invoked by
the details of such action or the merit of the result a foreign government plaintiff in our courts.
cannot be questioned, but must be accepted by our
courts as a rule for their decision. To accept a ruling Preliminarily, we discuss the foundations on which we
authority and to decide accordingly is not a surrender deem the act of state doctrine to rest, and more
or abandonment of jurisdiction, but is an exercise of it. particularly the question of whether state or federal
It results that the title to the property in this case must law governs its application in a federal diversity case.
be determined by the result of the action taken by the
military authorities of Mexico. . . ."
We do not believe that this doctrine is compelled either
by the inherent nature of sovereign authority, as some
To the same effect is the language of Mr. Justice of the earlier decision seem to imply, or by some
Cardozo in the Shapleigh case, supra, where, in principle of international law. If a transaction takes
commenting on the validity of a Mexican land place in one jurisdiction and the forum is in another,
expropriation, he said: the forum does not, by dismissing an action or by
applying its own law, purport to divest the first
"The question is not here whether the proceeding was jurisdiction of its territorial sovereignty; it merely
so conducted as to be a wrong to our nationals under declines to adjudicate, or makes applicable its own law
the doctrines of international law, though valid under to parties or property before it. The refusal of one
the law of the situs of the land. For wrongs of that country to enforce the penal laws of another is a
order, the remedy to be followed is along the channels typical example of an instance when a court will not
of diplomacy." entertain a cause of action arising in another
jurisdiction. While historic notions of sovereign
In deciding the present case, the Court of Appeals authority do bear upon the wisdom or employing the
relied in part upon an exception to the unqualified act of state doctrine, they do not dictate its existence.
teachings of Underhill, Oetjen, and Ricaud which that
court had earlier indicated. In Bernstein v. Van That international law does not require application of
Heyghen Freres Societe Anonyme, suit was brought to the doctrine is evidenced by the practice of nations.
recover from an assignee property allegedly taken, in Most of the countries rendering decisions on the
effect, by the Nazi Government because plaintiff was subject to follow the rule rigidly. No international
Jewish. Recognizing the odious nature of this act of arbitral or judicial decision discovered suggests that
state, the court, through Judge Learned Hand, international law prescribes recognition of sovereign
nonetheless refused to consider it invalid on that acts of foreign governments, see 1 Oppenheim's
ground. Rather, it looked to see if the Executive had International Law, 115aa (Lauterpacht, 8th ed. 1955),
acted in any manner that would indicate that United and apparently no claim has ever been raised before
States Courts should refuse to give effect to such a an international tribunal that failure to apply the act of
foreign decree. Finding no such evidence, the court state doctrine constitutes a breach of international
sustained dismissal of the complaint. In a later case obligation. If international law does not prescribe use of
involving similar facts, the same court again assumed the doctrine, neither does it forbid application of the
examination of the German acts improper, but, quite rule even if it is claimed that the act of state in
evidently following the implications of Judge Hand's question violated international law. The traditional view
opinion in the earlier case, amended its mandate to of international law is that it establishes substantive
permit evidence of alleged invalidity, 210 F.2d 375, principles for determining whether one country has
subsequent to receipt by plaintiff's attorney of a letter wronged another. Because of its peculiar "nation to
from the Acting Legal Adviser to the State Department nation" character, the usual method for an individual to
seek relief is to exhaust local remedies and then repair "The courts of one independent government will not sit
to the executive authorities of his own state to in judgment upon the validity of the acts of another
persuade them to champion his claim in diplomacy or done within its own territory, even when such
before an international tribunal. Although it is, of government seizes and sells the property of an
course, true that United States courts apply American citizen within its boundaries."
international law as a part of our own in appropriate
circumstances, the public law of nations can hardly Thus, our conclusions might well be the same whether
dictate to a country which is, in theory, wronged how we dealt with this problem as one of state law, or
to treat that wrong within its domestic borders. federal law.

Despite the broad statement in Oetjen that However, we are constrained to make it clear that an
issue concerned with a basic choice regarding the
"The conduct of the foreign relations of our competence and function of the Judiciary and the
government is committed by the Constitution to the National Executive in ordering our relationships with
Executive and Legislative . . . departments," it cannot, other members of the international community must
of course, be thought that "every case or controversy be treated exclusively as an aspect of federal law. It
which touches foreign relations lies beyond judicial seems fair to assume that the Court did not have rules
cognizance." The text of the Constitution does not like the act of state doctrine in mind when it
require the act of state doctrine; it does not irrevocably decided Erie R. Co. v. Tompkins. Soon thereafter,
remove from the judiciary the capacity to review the Professor Philip C. Jessup, now a judge of the
validity of foreign acts of state. International Court of Justice, recognized the potential
dangers were Erie extended to legal problems affecting
The act of state doctrine does, however, have international relations. He cautioned that rules of
"constitutional" underpinnings. It arises out of the basic international law should not be left to divergent and
relationships between branches of government in a perhaps parochial state interpretations. His basic
system of separation of powers. It concerns the rationale is equally applicable to the act of state
competency of dissimilar institutions to make and doctrine.
implement particular kinds of decisions in the area of
international relations. The doctrine, as formulated in The Court, in the pre-Erie act of state cases, although
past decisions, expresses the strong sense of the not burdened by the problem of the source of
Judicial Branch that its engagement in the task of applicable law, used language sufficiently strong and
passing on the validity of foreign acts of state may broad-sweeping to suggest that state courts were not
hinder, rather than further, this country's pursuit of left free to develop their own doctrines (as they would
goals both for itself and for the community of nations have been had this Court merely been interpreting
as a whole in the international sphere. Many common law under Swift v. Tyson, supra). The Court of
commentators disagree with this view; they have Appeals, in the first Bernstein case, supra, a diversity
striven, by means of distinguishing and limiting past suit, plainly considered the decisions of this Court,
decisions and by advancing various considerations of despite the intervention of Erie, to be controlling in
policy, to stimulate a narrowing of the apparent scope regard to the act of state question, at the same time
of the rule. Whatever considerations are thought to indicating that New York law governed other aspects of
predominate, it is plain that the problems involved are the case. We are not without other precedent for a
uniquely federal in nature. If federal authority, in this determination that federal law governs; there are
instance, this Court, orders the field of judicial enclaves of federal judge-made law which bind the
competence in this area for the federal courts, and the States. A national body of federal-court-built law has
state courts are left free to formulate their own rules, been held to have been contemplated by 301 of the
the purposes behind the doctrine could be as Labor Management Relations Act. Principles formulated
effectively undermined as if there had been no federal by federal judicial law have been thought by this Court
pronouncement on the subject. to be necessary to protect uniquely federal interests,
Of course, the federal interest guarded in all these
We could, perhaps, in this diversity action, avoid the cases is one the ultimate statement of which is derived
question of deciding whether federal or state law is from a federal statute. Perhaps more directly in point
applicable to this aspect of the litigation. New York has are the bodies of law applied between States over
enunciated the act of state doctrine in terms that echo boundaries and in regard to the apportionment of
those of federal decisions decided during the reign interstate waters.
of Swift v. Tyson, Underhill was foreshadowed by the
words, In Hinderlider v. La Plata River Co., an opinion handed
down the same day as Erie and by the same author,
"the courts of one country are bound to abstain from Mr. Justice Brandeis, the Court declared,
sitting in judgment on the acts of another government
done within its own territory." "For whether the water of an interstate stream must be
apportioned between the two States is a question of
More recently, the Court of Appeals, in Salimoff & Co. 'federal common law' upon which neither the statutes
v. Standard Oil Co., 262 N.Y. 220, 224, 186 N.E. 679, nor the decisions of either State can be conclusive."
681, has declared,
Although the suit was between two private litigants,
and the relevant States could not be made parties, the
Court considered itself free to determine the effect of not for a public purpose, is discriminatory, or is without
an interstate compact regulating water apportionment. provision for prompt, adequate, and effective
The decision implies that no State can undermine the compensation. However, Communist countries,
federal interest in equitably apportioned interstate although they have in fact provided a degree of
waters, even if it deals with private parties. This would compensation after diplomatic efforts, commonly
not mean that, absent a compact, the apportionment recognize no obligation on the part of the taking
scheme could not be changed judicially, or by country. Certain representatives of the newly
Congress, but only that apportionment is a matter of independent and underdeveloped countries have
federal law. The problems surrounding the act of state questioned whether rules of state responsibility toward
doctrine are, albeit for different reasons, as intrinsically aliens can bind nations that have not consented to
federal as are those involved in water apportionment them, and it is argued that the traditionally articulated
or boundary disputes. The considerations supporting standards governing expropriation of property reflect
exclusion of state authority here are much like those "imperialist" interests, and are inappropriate to the
which led the Court, in United States v. California, to circumstances of emergent states.
hold that the Federal Government possessed
paramount rights in submerged lands though within The disagreement as to relevant international law
the three-mile limit of coastal States. We conclude that standards reflects an even more basic divergence
the scope of the act of state doctrine must be between the national interests of capital importing and
determined according to federal law. capital exporting nations, and between the social
ideologies of those countries that favor state control of
VI a considerable portion of the means of production and
those that adhere to a free enterprise system. It is
If the act of state doctrine is a principle of decision difficult to imagine the courts of this country
binding on federal and state courts alike, but embarking on adjudication in an area which touches
compelled by neither international law nor the more sensitively the practical and ideological goals of
Constitution, its continuing vitality depends on its the various members of the community of nations.
capacity to reflect the proper distribution of functions
between the judicial and political branches of the When we consider the prospect of the courts'
Government on matters bearing upon foreign affairs. It characterizing foreign expropriations, however
should be apparent that the greater the degree of justifiably, as invalid under international law and
codification or consensus concerning a particular area ineffective to pass title, the wisdom of the precedents
of international law, the more appropriate it is for the is confirmed. While each of the leading cases in this
judiciary to render decisions regarding it, since the Court may be argued to be distinguishable in its facts
courts can then focus on the application of an agreed from this one -- Underhill because sovereign immunity
principle to circumstances of fact, rather than on the provided an independent ground, and Oetjen,
sensitive task of establishing a principle not Ricaud, and Shapleigh because there was actually no
inconsistent with the national interest or with violation of international law -- the plain implication of
international justice. It is also evident that some all these opinions, and the import of express
aspects of international law touch much more sharply statements in Oetjen, is that the act of state doctrine
on national nerves than do others; the less important is applicable even if international law has been
the implications of an issue are for our foreign violated. In Ricaud, the one case of the three most
relations, the weaker the justification for exclusivity in plausibly involving an international law violation, the
the political branches. The balance of relevant possibility of an exception to the act of state doctrine
considerations may also be shifted if the government was not discussed. Some commentators have
which perpetrated the challenged act of state is no concluded that it was not brought to the Court's
longer in existence, as in the Bernstein case, for the attention, but Justice Clarke delivered both
political interest of this country may, as a result, be the Oetjen and Ricaud opinions on the same day, so
measurably altered. Therefore, rather than laying down we can assume that principles stated in the former
or reaffirming an inflexible and all-encompassing rule were applicable to the latter case.
in this case, we decide only that the Judicial Branch will
not examine the validity of a taking of property within The possible adverse consequences of a conclusion to
its own territory by a foreign sovereign government, the contrary of that implicit in these cases in
extant and recognized by this country at the time of highlighted by contrasting the practices of the political
suit, in the absence of a treaty or other unambiguous branch with the limitations of the judicial process in
agreement regarding controlling legal principles, even matters of this kind. Following an expropriation of any
if the complaint alleges that the taking violates significance, the Executive engages in diplomacy
customary international law. aimed to assure that United States citizens who are
harmed are compensated fairly. Representing all
There are few if any issues in international law today claimants of this country, it will often be able, either by
on which opinion seems to be so divided as the bilateral or multilateral talks, by submission to the
limitations on a state's power to expropriate the United Nations, or by the employment of economic and
property of aliens. political sanctions, to achieve some degree of general
redress. Judicial determinations of invalidity of title can,
There is, of course, authority, in international judicial on the other hand, have only an occasional impact,
and arbitral decisions, in the expressions of national since they depend on the fortuitous circumstance of
governments, and among commentators for the view the property in question being brought into this
that a taking is improper under international law if it is country. Such decisions would, if the acts involved were
declared invalid, often be likely to give offense to the foreign commerce, with the possible consequence of
expropriating country; since the concept of territorial altering the flow of international trade. If the attitude of
sovereignty is so deep-seated, any state may resent the United States courts were unclear, one buying
the refusal of the courts of another sovereign to accord expropriated goods would not know if he could safely
validity to acts within its territorial borders. Piecemeal import them into this country. Even were takings
dispositions of this sort involving the probability of known to be invalid, one would have difficulty
affront to another state could seriously interfere with determining, after goods had changed hands several
negotiations being carried on by the Executive Branch, times, whether the particular articles in question were
and might prevent or render less favorable the terms the product of an ineffective state act.
of an agreement that could otherwise be reached.
Relations with third countries which have engaged in Against the force of such considerations, we find
similar expropriations would not be immune from respondents' countervailing arguments quite
effect. unpersuasive. Their basic contention is that United
States courts could make a significant contribution to
The dangers of such adjudication are present the growth of international law, a contribution whose
regardless of whether the State Department has, as it importance, it is said, would be magnified by the
did in this case, asserted that the relevant act violated relative paucity of decisional law by international
international law. If the Executive Branch has bodies. But, given the fluidity of present world
undertaken negotiations with an expropriating country, conditions, the effectiveness of such a patchwork
but has refrained from claims of violation of the law of approach toward the formulation of an acceptable body
nations, a determination to that effect by a court might of law concerning state responsibility for expropriations
be regarded as a serious insult, while a finding of is, to say the least, highly conjectural. Moreover, it
compliance with international law would greatly rests upon the sanguine presupposition that the
strengthen the bargaining hand of the other state with decisions of the courts of the world's major capital
consequent detriment to American interests. exporting country and principal exponent of the free
enterprise system would be accepted as disinterested
Even if the State Department has proclaimed the expressions of sound legal principle by those adhering
impropriety of the expropriation, the stamp of approval to widely different ideologies.
of its view by a judicial tribunal, however, impartial,
might increase any affront, and the judicial decision It is contended that, regardless of the fortuitous
might occur at a time, almost always well after the circumstances necessary for United States jurisdiction
taking, when such an impact would be contrary to our over a case involving a foreign act of state and the
national interest. Considerably more serious and far- resultant isolated application to any expropriation
reaching consequences would flow from a judicial program taken as a whole, it is the function of the
finding that international law standards had been met courts to justly decide individual disputes before them.
if that determination flew in the face of a State Perhaps the most typical act of state case involves the
Department proclamation to the contrary. When original owner or his assignee suing one not in
articulating principles of international law in its association with the expropriating state who has had
relations with other states, the Executive Branch "title" transferred to him. But it is difficult to regard the
speaks not only as an interpreter of generally accepted claim of the original owner, who otherwise may be
and traditional rules, as would the courts, but also as recompensed through diplomatic channels, as more
an advocate of standards it believes desirable for the demanding of judicial cognizance than the claim of title
community of nations and protective of national by the innocent third party purchaser, who, if the
concerns. In short, whatever way the matter is cut, the property is taken from him, is without any remedy.
possibility of conflict between the Judicial and
Executive Branches could hardly be avoided. Respondents claim that the economic pressure
resulting from the proposed exception to the act of
Respondents contend that, even if there is not state doctrine will materially add to the protection of
agreement regarding general standards for United States investors. We are not convinced, even
determining the validity of expropriations, the alleged assuming the relevance of this contention.
combination of retaliation, discrimination, and Expropriations take place for a variety of reasons,
inadequate compensation makes it patently clear that political and ideological, as well as economic. When
this particular expropriation was in violation of one considers the variety of means possessed by this
international law. [Footnote 37] If this view is accurate, country to make secure foreign investment, the
it would still be unwise for the courts so to determine. persuasive or coercive effect of judicial invalidation of
Such a decision now would require the drawing of more acts of expropriation dwindles in comparison. The
difficult lines in subsequent cases, and these would newly independent states are in need of continuing
involve the possibility of conflict with the Executive foreign investment; the creation of a climate
view. Even if the courts avoided this course, either by unfavorable to such investment by wholesale
presuming the validity of an act of state whenever the confiscations may well work to their long-run economic
international law standard was thought unclear or by disadvantage. Foreign aid given to many of these
following the State Department declaration in such a countries provides a powerful lever in the hands of the
situation, the very expression of judicial uncertainty political branches to ensure fair treatment of United
might provide embarrassment to the Executive Branch. States nationals. Ultimately, the sanctions of economic
embargo and the freezing of assets in this country may
Another serious consequence of the exception pressed be employed. Any country willing to brave any or all of
by respondents would be to render uncertain titles in these consequences is unlikely to be deterred by
sporadic judicial decisions directly affecting only heightened by the presence of a sovereign plaintiff.
property brought to our shores. If the political branches The rebuke to a recognized power would be more
are unwilling to exercise their ample powers to effect pointed were it a suitor in our courts. In discussing the
compensation, this reflects a judgment of the national rule against enforcement of foreign penal and revenue
interest which the judiciary would be ill advised to laws, the Eire High Court of Justice, in Peter Buchanan
undermine indirectly. Ltd. v. McVey, [1955] A.C. 516, 529-530, aff'd, id. at
530, emphasized that its justification was in large
It is suggested that, if the act of state doctrine is degree the desire to avoid embarrassing another state
applicable to violations of international law, it should by scrutinizing its penal and revenue laws. Although
only be so when the Executive Branch expressly that rule presumes invalidity in the forum whereas the
stipulates that it does not wish the courts to pass on act of state principle presumes the contrary, the
the question of validity. See Association of the Bar of doctrines have a common rationale, a rationale that
the City of New York, Committee on International Law, negates the wisdom of discarding the act of state rule
A Reconsideration of the Act of State Doctrine in United when the plaintiff is a state which is not seeking
States Courts (1959). We should be slow to reject the enforcement of a public act.
representations of the Government that such a reversal
of the Bernstein principle would work serious inroads Certainly the distinction proposed would sanction self-
on the maximum effectiveness of United States help remedies, something hardly conducive to a
diplomacy. Often, the State Department will wish to peaceful international order. Had Farr, Whitlock not
refrain from taking an official position, particularly at a converted the bills of lading, or alternatively breached
moment that would be dictated by the development of its contract, Cuba could have relied on the act of state
private litigation but might be inopportune doctrine in defense of a claim brought by C.A.V. for the
diplomatically. Adverse domestic consequences might proceeds. It would be anomalous to preclude reliance
flow from an official stand which could be assuaged, if on the act of state doctrine because of Farr, Whitlock's
at all, only by revealing matters best kept secret. Of unilateral action, however justified such action may
course, a relevant consideration for the State have been under the circumstances.
Department would be the position contemplated in the
court to hear the case. It is highly questionable Respondents offer another theory for treating the case
whether the examination of validity by the judiciary differently because of Cuba's participation. It is claimed
should depend on an educated guess by the Executive that the forum should simply apply its own law to all
as to probable result, and, at any rate, should a the relevant transactions. An analogy is drawn to the
prediction be wrong, the Executive might be area of sovereign immunity, National City Bank v.
embarrassed in its dealings with other countries. We do Republic of China, 348 U. S. 356, in which, if a foreign
not now pass on the Bernstein exception, but, even if it country seeks redress in our courts, counterclaims are
were deemed valid, its suggested extension is permissible. But immunity relates to the prerogative
unwarranted. right not to have sovereign property subject to suit;
fairness has been thought to require that, when the
However offensive to the public policy of this country sovereign seeks recovery, it be subject to legitimate
and its constituent States an expropriation of this kind counterclaims against it. The act of state doctrine,
may be, we conclude that both the national interest however, although it shares with the immunity doctrine
and progress toward the goal of establishing the rule of a respect for sovereign states, concerns the limits for
law among nations are best served by maintaining determining the validity of an otherwise applicable rule
intact the act of state doctrine in this realm of its of law. It is plain that, if a recognized government sued
application. on a contract with a United States citizen, concededly
legitimate by the locus of its making, performance, and
VII most significant contacts, the forum would not apply
its own substantive law of contracts. Since the act of
state doctrine reflects the desirability of presuming the
Finally, we must determine whether Cuba's status as a relevant transaction valid, the same result follows; the
plaintiff in this case dictates a result at variance with forum may not apply its local law regarding foreign
the conclusions reached above. If the Court were to expropriations.
distinguish between suits brought by sovereign states
and those of assignees, the rule would have little effect
unless a careful examination were made in each case Since the act of state doctrine proscribes a challenge
to determine if the private party suing had taken to the validity of the Cuban expropriation decree in this
property in good faith. Such an inquiry would be case, any counterclaim based on asserted invalidity
exceptionally difficult, since the relevant transaction must fail. Whether a theory of conversion or breach of
would almost invariably have occurred outside our contract is the proper cause of action under New York
borders. If such an investigation were deemed law, the presumed validity of the expropriation is
irrelevant, a state could always assign its claim. unaffected. Although we discern no remaining litigable
issues of fact in this case, the District Court may hear
and decide them if they develop.
It is true that the problem of security of title is not
directly presented in the instance of a sovereign
plaintiff, although, were such a plaintiff denied relief, it The judgment of the Court of Appeals is reversed, and
would ship its goods elsewhere, thereby creating an the case is remanded to the District Court for
alteration in the flow of trade. The sensitivity in regard proceedings consistent with this opinion.
to foreign relations and the possibility of
embarrassment of the Executive are, of course, It is so ordered.
doctrine and grant enforcement to a foreign act where
the act was a clear and flagrant violation of
MR. JUSTICE WHITE, dissenting. international law, as the District Court and the Court of
Appeals have found in respect to the Cuban law
challenged herein.
I am dismayed that the Court has, with one broad
stroke, declared the ascertainment and application of
international law beyond the competence of the courts II
of the United States in a large and important category
of cases. I am also disappointed in the Court's Though not a principle of international law, the
declaration that the acts of a sovereign state with doctrine of restraint, as formulated by this Court, has
regard to the property of aliens within its borders are its roots in sound policy reasons, and it is to these we
beyond the reach of international law in the courts of must turn to decide whether the act of state doctrine
this country. However clearly established that law may should be extended to cover wrongs cognizable under
be, a sovereign may violate it with impunity, except international law.
insofar as the political branches of the government
may provide a remedy. This backward-looking doctrine, Whatever may be said to constitute an act of state, our
never before declared in this Court, is carried a decisions make clear that the doctrine of nonreview
disconcerting step further: not only are the courts ordinarily applies to foreign laws affecting tangible
powerless to question acts of state proscribed by property located within the territory of a government
international law, but they are likewise powerless to which is recognized by the United States. This
refuse to adjudicate the claim founded upon a foreign judicially fashioned doctrine of nonreview is a corollary
law; they must render judgment, and thereby validate of the principle that, ordinarily, a state has jurisdiction
the lawless act. Since the Court expressly extends its to prescribe the rules governing the title to property
ruling to all acts of state expropriating property, within its territorial sovereignty, see Clarke v. Clarke,
however clearly inconsistent with the international De Vaughn v. Hutchinson, a principle reflected in the
community, all discriminatory expropriations of the conflict of laws rule, adopted in virtually all nations,
property of aliens, as for example the taking of that the lex loci is the law governing title to property.
properties of persons belonging to certain races, This conflict rule would have been enough in itself to
religions or nationalities, are entitled to automatic have controlled the outcome of most of the act of state
validation in the courts of the United States. No other cases decided by this Court. Both of these rules rest on
civilized country has found such a rigid rule necessary the deeply imbedded postulate in international law of
for the survival of the Executive Branch of its the territorial supremacy of the sovereign, a postulate
government; the Executive of no other government that has been characterized as the touchstone of
seems to require such insulation from international law private and public international law. That the act of
adjudications in its courts; and no other judiciary is state doctrine is rooted in a well established concept of
apparently so incompetent to ascertain and apply international law is evidenced by the practice of other
international law. countries. These countries, without employing any act
of state doctrine, afford substantial respect to acts of
I do not believe that the act of state doctrine, as foreign states occurring within their territorial confines.
judicially fashioned in this Court, and the reasons Our act of state doctrine, as formulated in past
underlying it, require American courts to decide cases decisions of the Court, carries the territorial concept
in disregard of international law and of the rights of one step further. It precludes a challenge to the validity
litigants to a full determination on the merits. of foreign law on the ordinary conflict of laws ground of
repugnancy to the public policy of the forum. Against
I the objection that the foreign act violates domestic
public policy, it has been said that the foreign law
provides the rule of decision where the lex loci rule
Prior decisions of this Court in which the act of state would so indicate, in American courts.
doctrine was deemed controlling do not support the
assertion that foreign acts of state must be enforced or
recognized or applied in American courts when they The reasons that underlie the deference afforded to
violate the law of nations. These cases do hold that a foreign acts affecting property in the acting country are
foreign act of state applied to persons or property several; such deference reflects an effort to maintain a
within its borders may not be denied effect in our certain stability and predictability in transnational
courts on the ground that it violates the public policy of transactions, to avoid friction between nations, to
the forum. Also, the broad language in some of these encourage settlement of these disputes through
cases does evince an attitude of caution and self- diplomatic means, and to avoid interference with the
imposed restraint in dealing with the laws of a foreign Executive control of foreign relations. To adduce sound
nation. But violations of international law were either reasons for a policy of nonreview is not to resolve the
not presented in these cases, because the parties or problem at hand, but to delineate some of the
predecessors in title were nationals of the acting state, considerations that are pertinent to its resolution.
or the claimed violation was insubstantial in light of the
facts presented to the Court and the principles of Contrary to the assumption underlying the Court's
international law applicable at the time. opinion, these considerations are relative, their
strength varies from case to case, and they are by no
These cases do not strongly imply or even suggest that means controlling in all litigation involving the public
the Court would woodenly apply the act of state acts of a foreign government. This is made abundantly
clear by numerous cases in which the validity of a
foreign act of state is drawn in question and in which Habana: "[i]nternational law is part of our law, and
these identical considerations are present in the same must be ascertained and administered by the courts of
or a greater degree. American courts have denied justice of appropriate jurisdiction as often as questions
recognition or effect to foreign law, otherwise of right depending upon it are duly presented for their
applicable under the conflict of laws rules of the forum, determination."
to many foreign laws where these laws are deeply
inconsistent with the policy of the forum, Principles of international law have been applied in our
notwithstanding that these laws were of obvious courts to resolve controversies not merely because
political and social importance to the acting country. they provide a convenient rule for decision, but
For example, foreign confiscatory decrees purporting to because they represent a consensus among civilized
divest nationals and corporations of the foreign nations on the proper ordering of relations between
sovereign of property located in the United States nations and the citizens thereof. Fundamental fairness
uniformly have been denied effect in our courts, to litigants, as well as the interest in stability of
including this Court; courts continued to recognize relationships and preservation of reasonable
private property rights of Russian corporations owning expectations, call for their application whenever
property within the United States long after the international law is controlling in a case or controversy.
Russian Government, recognized by the United States,
confiscated all such property and had rescinded the
laws on which corporate identity depended. The relevance of international law to a just resolution
Furthermore, our courts customarily refuse to enforce of this case is apparent from the impact of
the revenue and penal laws of a foreign state, since no international law on other aspects of this controversy.
country has an obligation to further the governmental Indeed, it is only because of the application of
interests of a foreign sovereign. And the judgments of international rules to resolve other issues that the act
foreign courts are denied conclusive or prima of state doctrine becomes the determinative issue in
facie effect where the judgment is based on a statute this case. The basic rule that the law of the situs of
unenforceable in the forum, where the procedures of property is the proper law to be applied in determining
the rendering court markedly depart from our notions title in other forums, whether styled a rule of private
of fair procedure, and generally where enforcement international law or domestic conflict of law, is rooted
would be contrary to the public policy of the forum. in concepts firmly embedded in a consensus of nations
These rules demonstrate that our courts have never on territorial sovereignty. Without such a consensus
been bound to pay unlimited deference to foreign acts and the conflict of laws rule derived therefrom, the
of state, defined as an act or law in which the question of whether Cuba's decree can be measured
sovereign's governmental interest is involved; they against the norms of international law would never
simultaneously cast doubt on the proposition that the arise in this litigation, since, then, a court presumably
additional element in the case at bar, that the property would be free to apply its own rules governing the
may have been within the territorial confines of Cuba acquisition of title to property. Furthermore, the
when the expropriation decree was promulgated, contention that the sugar in question was within the
requires automatic deference to the decree, regardless territorial confines of Cuba when the Cuban decree was
of whether the foreign act violates international law. enacted itself rests on widely accepted principles of
international law, namely, that the bays or inlets
contiguous to a country are within its boundaries, and
III that territorial jurisdiction extends at least three miles
beyond these boundaries. See Oppenheim,
I start with what I thought to be unassailable International Law, 186, 190-191 (Lauterpacht, 8th
propositions: that our courts are obliged to determine ed. 1955). Without these rules derived from
controversies on their merits, in accordance with the international law, this confiscation could be
applicable law; and that part of the law American characterized as extraterritorial, and therefore -- unless
courts are bound to administer is international law. the Court also intends to change this rule -- subject to
the public policy test traditionally applied to
Article III, 2, of the Constitutional states that "[t]he extraterritorial takings of property, even though
judicial Power shall extend to all Cases . . . affecting embarrassing to foreign affairs. Further, in response to
Ambassadors, other public Ministers and Consuls; -- to the contention that title to the sugar had already
all Cases of admiralty and maritime Jurisdiction; -- to passed to Farr, Whitlock by virtue of the contract with
Controversies . . . between a State, or the Citizens C.A.V. when the nationalization decree took effect, it
thereof, and foreign States, Citizens or Subjects." was held below that, under "the law merchant
common to civilized countries" (emphasis supplied),
Farr, Whitlock could not acquire title to the shipment
And 1332 of the Judicial Code gives the courts until payment was made in New York. Thus, the central
jurisdiction over all civil actions between citizens of a issue in this litigation is posed only because of
State and foreign states or citizens or subjects thereof. numerous other applications of the law of nations and
The doctrine that the law of nations is a part of the law domestic rules derived therefrom in respect to
of the land, originally formulated in England and subsidiary, but otherwise controlling, legal issues in the
brought to America as part of our legal heritage, is controversy.
reflected in the debates during the Constitutional
Convention and in the Constitution itself. This Court
has time and again effectuated the clear The Court accepts the application of rules of
understanding of the Framers, as embodied in the international law to other aspects of this litigation,
Constitution, by applying the law of nations to resolve accepts the relevance of international law in other
cases and controversies. As stated in The Paquete
cases, and announces that, when there is an the act of state under review would seem to deny the
appropriate degree of existence or purport of such norms, a view that seems
inconsistent with the role of international law in
"consensus concerning a particular area of ordering the relations between nations. Finally, the
international law, the more appropriate it is for the impartial application of international law would not
judiciary to render decisions regarding it, since the only be an affirmation of the existence and binding
courts can then focus on the application of an agreed effect of international rules of order, but also a
principle to circumstances of fact, rather than on the refutation of the notion that this body of law consists of
sensitive task of establishing a principle not no more than the divergent and parochial views of the
inconsistent with the national interest or with capital importing and exporting nations, the socialist
international justice." and free enterprise nations.

The Court then, rather lightly, in my view, dispenses The Court puts these considerations to rest with the
with its obligation to resolve controversies in assumption that the decisions of the courts "of the
accordance with "international justice" and the world's major capital exporting country and principal
"national interest" by assuming and declaring that exponent of the free enterprise system" would hardly
there are no areas of agreement between nations in be accepted as impartial expressions of sound legal
respect to expropriations. There may not be. But, principle. The assumption, if sound, would apply to any
without critical examination, which the Court fails to other problem arising from transactions that cross
provide, I would not conclude that a confiscatory taking state lines, and is tantamount to a declaration excusing
which discriminates against nationals of another this Court from any future consequential role in the
country to retaliate against the government of that clarification and application of international law. This
country falls within that area of issues in international declaration ignores the historic role which this Court
law "on which opinion seems to be so divided." Nor and other American courts have played in applying and
would I assume, as the ironclad rule of the Court maintaining principles of international law.
necessarily implies, that there is not likely to be a
consensus among nations in this area, as for example Of course, there are many unsettled areas of
upon the illegality of discriminatory takings of alien international law, as there are of domestic law, and
property based upon race, religion or nationality. But, these areas present sensitive problems of
most of all, I would not declare that, even if there were accommodating the interests of nations that subscribe
a clear consensus in the international community, the to divergent economic and political systems. It may be
courts must close their eyes to a lawless act and that certain nationalizations of property for a public
validate the transgression by rendering judgment for purpose fall within this area. Also, it may be that
the foreign state at its own request. This is an domestic courts, as compared to international tribunals
unfortunate declaration for this Court to make. It is, of or arbitral commissions, have a different and less
course, wholly inconsistent with the premise from active role to play in formulating new rules of
which the Court starts, and, under it, banishment of international law or in choosing between rules not yet
international law from the courts is complete and final adhered to by any substantial group of nations. Where
in cases like this. I cannot so cavalierly ignore the a clear violation of international law is not
obligations of a court to dispense justice to the litigants demonstrated, I would agree that principles of comity
before it. underlying the act of state doctrine warrant recognition
and enforcement of the foreign act. But none of these
IV considerations relieves a court of the obligation to
make an inquiry into the validity of the foreign act,
none of them warrants a flat rule of no inquiry at all.
The reasons for nonreview, based as they are on The vice of the act of state doctrine, as formulated by
traditional concepts of territorial sovereignty, lose the Court and applied in this case, where the decree is
much of their force when the foreign act of state is alleged not only to be confiscatory, but also retaliatory
shown to be a violation of international law. All and discriminatory, and has been found by two courts
legitimate exercises of sovereign power, whether to be a flagrant violation of international law, is that it
territorial or otherwise, should be exercised precludes any such examination, and proscribes any
consistently with rules of international law, including decision on whether Cuban Law No. 851 contravenes
those rules which mark the bounds of lawful state an accepted principle of international law.
action against aliens or their property located within
the territorial confines of the foreign state. Although a
state may reasonably expect that the validity of its The other objections to reviewing the act challenged
laws operating on property within its jurisdiction will herein, save for the alleged interference with the
not be defined by local notions of public policy of Executive's conduct of foreign affairs, seem without
numerous other states (although a different situation substance, both in theory and as applied to the facts of
may well be presented when courts of another state the instant case. The achievement of a minimum
are asked to lend their enforcement machinery to amount of stability and predictability in international
effectuate the foreign act), [Footnote 2/18] it cannot commercial transactions is not assured by a rule of
with impunity ignore the rules governing the conduct nonreviewability which permits any act of a foreign
of all nations and expect that other nations and state, regardless of its validity under international law,
tribunals will view its acts as within the permissible to pass muster in the courts of other states. The very
scope of territorial sovereignty. Contrariwise, to refuse act of a foreign state against aliens which contravenes
inquiry into the question of whether norms of the rules of international law, the purpose of which is to
international community have been contravened by support and foster an order upon which people can
rely, is at odds with the achievement of stability and where comity dictates giving effect to the foreign act
predictability in international transactions. And the because it is not clearly condemned under generally
infrequency of cases in American courts involving accepted principles of international law. And it cannot
foreign acts of state challenged as invalid under be contended that the Constitution allocates this area
international law furnishes no basis at all for treating to the exclusive jurisdiction of the Executive, for the
the matter as unimportant and for erecting the rule the judicial power is expressly extended by that document
Court announces today. to controversies between aliens and citizens or States,
aliens and aliens, and foreign states and American
There is also the contention that the act of state citizens or States.
doctrine serves to channel these disputes through the
processes designed to rectify wrongs of an A valid statute, treaty or executive agreement could, I
international magnitude, see Oetjen v. Central Leather assume, confine the power of federal courts to review
Co., supra; Shapleigh v. Mier, supra.The result of the or award relief in respect of foreign acts or otherwise
doctrine, it is said, requires an alien to seek relief in the displace international law as the rule of decision. I
courts or through the executive of the expropriating would not disregard a declaration by the Secretary of
country, to seek relief through diplomatic channels of State or the President that an adjudication in the courts
his own country and to seek review in an international of the validity of a foreign expropriation would impede
tribunal. These are factors an American court should relations between the United States and the foreign
consider when asked to examine a foreign act of state, government or the settlement of the controversy
although the availability and effectiveness of these through diplomatic channels. But I reject the
modes of accommodation may more often be illusory presumption that these undesirable consequences
than real. Where alternative modes are available and would follow from adjudication in every case,
are likely to be effective, our courts might well stay regardless of the circumstances. Certainly the
their hand and direct a litigant to exhaust or attempt to presumption is inappropriate here.
utilize them before adjudicating the validity of the
foreign act of state. But the possibility of alternative Soon after the promulgation of Cuban Law No. 851, the
remedies, without more, is frail support for a rule of State Department of the United States delivered a note
automatic deference to the foreign act in all cases. The of protest to the Cuban Government declaring this
Court's rule is peculiarly inappropriate in the instant nationalization law to be in violation of international
case, where no one has argued that C.A.V. can obtain law. Since the nationalization of the property in
relief in the courts of Cuba, where the United States question, the United States has broken off diplomatic
has broken off diplomatic relations with Cuba, and relations with the present Government of Cuba. And in
where the United States, although protesting the response to inquiries by counsel for the respondent in
illegality of the Cuban decrees, has not sought to the instant case, officials of the State Department
institute any action against Cuba in an international nowhere alleged that adjudication of the validity of the
tribunal. Cuban decree nationalizing C.V.A. would embarrass our
relations with Cuba or impede settlement on an
V international level. In 1963, the United States
Government issued a freeze order on all Cuban assets
There remains for consideration the relationship located in the United Sates. On these facts -- although
between the act of state doctrine and the power of the there may be others of which we are not aware -- it is
executive over matters touching upon the foreign wholly unwarranted to assume that an examination of
affairs of the Nation. It is urged that the act of state the validity of Cuban Law No. 851 and a finding of
doctrine is a necessary corollary of the executive's invalidity would intrude upon the relations between the
authority to direct the foreign relations of the United United States and Cuba.
States, and, accordingly, any exception in the doctrine,
even if limited to clear violations of international law, But the Court is moved by the spectre of another
would impede or embarrass the executive in possibility; it is said that an examination of the validity
discharging his constitutional responsibilities. Thus, of the Cuban law in this case might lead to a finding
according to the Court, even if principles of comity do that the Act is not in violation of widely accepted
not preclude inquiry into the validity of a foreign act international norms, or that an adjudication here would
under international law, due regard for the executive require a similar examination in other more difficult
function forbids such examination in the courts. cases, in one of which it would be found that the
foreign law is not in breach of international law. The
Without doubt, political matters in the realm of foreign finding, either in this case or subsequent ones, that a
affairs are within the exclusive domain of the Executive foreign act does not violate widely accepted
Branch, as, for example, issues for which there are no international principles might differ from the
available standards or which are textually committed executive's view of the act and international law, might
by the Constitution to the executive. But this is far from thereby seriously impede the executive's functions in
saying that the Constitution vests in the executive negotiating a settlement of the controversy, and would
exclusive absolute control of foreign affairs, or that the therefore be inconsistent with the national interest.
validity of a foreign act of state is necessarily a political "[T]he very expression of judicial uncertainty might
question. International law, as well as a treaty or provide embarrassment to the Executive Branch."
executive agreement, provides an ascertainable These speculations, founded on the supposed impact
standard for adjudicating the validity of some foreign of a judicial decision on diplomatic relations, seem
acts, and courts are competent to apply this body of contrary to the Court's view of the arsenal of weapons
law notwithstanding that there may be some cases possessed by this country to make secure foreign
investment, and the "ample powers [of the political executive has taken in respect to the act. I would think
branches] to effect compensation," and wholly that an adjudication by this Court that the foreign act,
inconsistent with its view of the limited competence as to which the executive is protesting and attempting
and knowledge of the judiciary in the area of foreign to secure relief for American citizens, is valid and
affairs and diplomacy. Moreover, the expression of beyond question enforceable in the courts of the
uncertainty feared by the Court is inevitable under the United States would indeed prove embarrassing to the
Court's approach, as is well exemplified by the ex Executive Branch of our Government in many
cathedra pronouncements in the instant case. While situations, much more so than a declaration of
premising that a judicial expression of uncertainty on invalidity or a refusal to adjudicate the controversy at
whether a particular act clearly violates international all. For the likelihood that validation and enforcement
law would be embarrassing to the Executive, this of a foreign act which is condemned by the executive
Court, in this very case, announces as an underpinning will be inconsistent with national policy as well as the
of its decision that goals of the international community is great. This
result is precisely because the Court, notwithstanding
"[t]here are few if any issues in international law today its protestations to the contrary, has laid down "an
on which opinion seems to be so divided as the inflexible and all-encompassing rule in this case."
limitations on a State's power to expropriate the
property of aliens," and proceeds to demonstrate the VI
absence of international standards by cataloguing the
divergent views of the "capital exporting," "free Obviously there are cases where an examination of the
enterprise" nations, of the "newly independent and foreign act and declaration of invalidity or validity
underdeveloped countries," and of the "Communist might undermine the foreign policy of the Executive
countries" toward both the issue of expropriation and Branch and its attempts at negotiating a settlement for
international law generally. The act of state doctrine a nationalization of the property of Americans. The
formulated by the Court bars review in this case, and respect ordinarily due to a foreign state, as reflected in
will do so in all others involving expropriation of alien the decisions of this Court, rests upon a desire not to
property precisely because of the lack of a consensus disturb the relations between countries and on a view
in the international community on rules of law that other means, more effective than piecemeal
governing foreign expropriations. Contrariwise, it would adjudications of claims arising out of a large-scale
seem that the act of state doctrine will not apply to a nationalization program of settling the dispute, may be
foreign act if it concerns an area in which there is available. Precisely because these considerations are
unusual agreement among nations, which is not the more or less present or absent in any given situation,
case with the broad area of expropriations. I fail to see and because the Department of our Government
how greater embarrassment flows from saying that the primarily responsible for the formulation of foreign
foreign act does not violate clear and widely accepted policy and settling these matters on a state-to-state
principles of international law than from saying, as the basis is more competent than courts to determine the
Court does, that nonexamination and validation are extent to which they are involved, a blanket
required because there are no widely accepted presumption of nonreview in each case is
principles to which to subject the foreign act. As to inappropriate, and a requirement that the State
potential embarrassment, the difference is semantic, Department render a determination after reasonable
but, as to determining the issue on its merits and as to notice, in each case, is necessary. Such an examination
upholding a regime of law, the difference is vast. would permit the Department to evaluate whether
adjudication would "vex the peace of nations," whether
These assertions might find much more support in the a friendly foreign sovereign is involved, and whether
authorities relied on by the Court and others if the settlement through diplomacy or through an
issue under discussion was not the undefined category international tribunal or arbitration is impending. Based
-- expropriation -- but the clearly discrete issue of upon such an evaluation, the Department may
adequate and effective compensation. It strains recommend to the court that adjudication should not
credulity to accept the proposition that newly emerging proceed at the present time. Such a request I would
nations or their spokesmen denounce all rules of state accord considerable deference, and I would not require
responsibility -- reject international law in regard to a full statement of reasons underlying it. But I reject
foreign nationals generally -- rather than reject the the contention that the recommendation itself would
traditional rule of international law requiring prompt, somehow impede the foreign relations of the United
adequate, and effective compensation. States, or unduly burden the Department. The Court
notes that "[a]dverse domestic consequences might
There is a further possibility of embarrassment to the flow from an official stand," by which I take it to mean
executive from the blanket presumption of validity that it might be politically embarrassing on the
applicable to all foreign expropriations, which the Court domestic front for the Department of State to interpose
chooses to ignore, and which, in my view, is far more an objection in a particular case which has attracted
self-evident than those adduced by the Court. That public attention. But an official stand is what the
embarrassment stems from the requirement that all Department must take under the so-
courts, including this Court, approve, validate, and called Bernstein exception, which the Court declines to
enforce any foreign act expropriating property at the disapprove. Assuming that there is a difference
behest of the foreign state or a private suitor, between an express official objection to examination
regardless of whether the act arbitrarily discriminates and the Executive's refusal to relieve "the court from
against aliens on the basis of race, religion, or any constraint upon the exercise of its jurisdiction," it is
nationality, and regardless of the position the not fair to allow the fate of a litigant to turn on the
possible political embarrassment of the Department of
State, and it is not this Court's role to encourage or obligation of courts to decide controversies justly and
require nonexamination by bottoming a rule of law on in accordance with the law applicable to the case.
the domestic public relations of the Department of
State. The Court also rejects this procedure, because it It is argued that abstention in the case at bar would
makes the examination of validity turn on an educated allow C.A.V. to retain possession of the proceeds from
guess by the Executive as to the probable result, and the sugar and would encourage wrongfully deprived
such a guess might turn out to be erroneous. The owners to engage in devious conduct or "self-help" in
United States, in its brief, has disclaimed any such order to compel the sovereign or one deriving title
interest in the result in these cases, either in the from him into the position of plaintiff. The short answer
ultimate outcome or the determination of validity, and I to this is that it begs the question; negotiation of the
would take the Government at its word in this matter, documents by Farr and retention of the proceeds by
without second-guessing the wisdom of its view. C.A.V. is unlawful if, but only if, Cuba acquired title to
the shipment by virtue of the nationalization decree.
This is precisely the procedure that the Department of This is the issue that cannot be decided in the case if
State adopted voluntarily in the situation where a deference to the State Department's recommendation
foreign government seeks to invoke the defense of is paid (assuming for the moment that such a
immunity in our courts. If it is not unduly disruptive for recommendation has been made). Nor is it apparent
the Department to determine whether to issue a that "self-help," if such it be deemed, in the form of
certificate of immunity to a foreign government itself refusing to recognize title derived from unlawful
when it seeks one, a recommendation by the paramount force is disruptful of or contrary to a
Department in cases where generally the sovereign is peaceful international order. Furthermore, a court has
not a party can hardly be deemed embarrassing to our ample means at its disposal to prevent a party who has
foreign relations. Moreover, such a procedure would be engaged in wrongful conduct from setting up defenses
consonant with the obligation of courts to adjudicate which would allow him to profit from the wrongdoing.
cases on the merits except for reasons wholly sufficient Where the act of state doctrine becomes a rule of
in the particular case. As I understand it, the executive judicial abstention, rather than a rule of decision for
has not yet said that adjudication in this case would the courts, the proper disposition is dismissal of the
impede his functions in the premises; rather, it has complaint or staying the litigation until the bar is lifted,
asked us to adopt a rule of law foreclosing inquiry into regardless of who has possession of the property
the subject unless the executive affirmatively allows whose title is in dispute.
the courts to adjudicate on the merits.
VII
Where the courts are requested to apply the act of
state doctrine at the behest of the State Department, it The position of the Executive Branch of the
does not follow that the courts are to proceed to Government charged with foreign affairs with respect
adjudicate the action without examining the validity of to this case is not entirely clear. As I see it, no specific
the foreign act under international law. The foreign objection by the Secretary of State to examination of
relations considerations and potential of the validity of Cuba's law has been interposed at any
embarrassment to the Executive inhere in examination stage in these proceedings, which would ordinarily lead
of the foreign act and in the result following from such to an adjudication on the merits. Disclaiming, rightfully,
an examination, not in the matter of who wins. Thus, I think, any interest in the outcome of the case, the
all the Department of State can legitimately request is United States has simply argued for a rule of
nonexamination of the foreign act. It has no proper nonexamination in every case, which literally, I
interest or authority in having courts decide a suppose, includes this one. If my view had prevailed, I
controversy upon anything less than all of the would have stayed further resolution of the issues in
applicable law or to decide it in accordance with the this Court to afford the Department of State reasonable
Executive's view of the outcome that best comports time to clarify its views in light of the opinion. In the
with the foreign or domestic affairs of the day. We are absence of a specific objection to an examination of
not dealing here with those cases where a court the validity of Cuba's law under international law, I
refuses to measure a foreign statute against public would have proceeded to determine the issue and
policy of the forum or against the fundamental law of resolve this litigation on the merits.
the foreign state itself. In those cases, the judicially
created act of state doctrine is an aspect of the
conflicts of law rules of the forum, and renders the The courts of the following countries, among others,
foreign law controlling. But where a court refuses to and their territories, have examined a fully "executed"
examine foreign law under principles of international foreign act of state expropriating property:
law, which it is required to do, solely because the
Executive Branch requests the court, for its own England: Anglo-Iranian Oil Co. v. Jaffrate, [1953] Int'l
reasons, to abstain from deciding the controlling issue L.Rep. 316 (Aden Sup.Ct.); N.V. de Bataafsche
in the controversy, then, in my view, the Executive has Petroleum Maatschappij v. The War Damage
removed the case from the realm of the law to the Comm'n [1956] Int'l L.Rep. 810 (Singapore Ct.App.).
realm of politics, and a court must decline to proceed
with the case. The proper disposition is to stay the
proceedings until circumstances permit an adjudication Netherlands: Senembah Maatschappij N.V. v. Rupubliek
or to dismiss the action where an adjudication within a Indonesie Bank Indonesia, Nederlandse Jurisprudentie
reasonable time does not seem feasible. To do 1959, No. 73, p. 218 (Amsterdam Ct.App.), excerpts
otherwise would not be in accordance with the reprinted in Domke, Indonesian Nationalization
Measures Before Foreign Courts, 54 Am.J.Int'l 305, 307- the act of state doctrine in its oft-quoted form, was a
315 (1960). suit in tort by an American citizen against an officer of
the Venezuelan Government for an unlawful detention
Germany: N.V. Verenigde Deli-Maatschapijen v. and compelled operation of the plaintiff's water
Deutsch-Indonesische Tabak-Handelsgesellschaft m.b. facilities during the course of a revolution in that
H. (Bremen Ct. m.b. H. (Bremen Ct.App.)), excerpts country. Well established principles of immunity
reprinted in Domke, of Property of Sudeten Germans precluded the plaintiff's suit, and this was one of the
Case, [1948] Am.Dig. 24, 25 (No. 12) (Amtsgericht of grounds for dismissal. However, as noted above, the
Dingolfing). Court did invoke the act of state doctrine in dismissing
the suit, and arguably the forced detention of a foreign
citizen posed a claim cognizable under international
Japan: Anglo-Iranian Oil Co. v. Indemitsu Kosan law. But the Court did not ignore this possibility of a
Kabushiki Kaisha, [1953] Int'l L.Rep. 305 (Dist.Ct. of violation of international law; rather, in distinguishing
Tokyo), aff'd, [1953] Int'l L.Rep. 312 (High Ct. of Tokyo). cases involving arrests by military authorities in the
absence of war and those concerning the right of
Italy: Anglo-Iranian Oil Co. v. S.U.P.O.R. Co., [1955] Int'l revolutionary bodies to interfere with commerce, the
L.Rep. 19 (Ct. of Venice); Anglo-Iranian Oil Co. v. Court passed on the merits of plaintiff's claim under
S.U.P.O.R. Co., [1955] Int'l L.Rep. 23 (Civ.Ct. of Rome). international law, and deemed the claim without merit
under then existing doctrines. "[A]cts
of legitimate warfare cannot be made the basis of
France: Volatron v. Moulin, [1938-1940] Ann.Dig. 24 individual liability." (Emphasis added). Indeed, the
(Ct. of App. of Aix); Societe Potasas Ibericas v. Nathan Court cited Dow v. Johnson, a suit arising from seizures
Bloch, [1938-1940] Ann.Dig. 150 (Ct. of Cassation). by American officers in the South during the Civil War,
in which it was held, without any reliance on the act of
The Court does not refer to any country which has state doctrine, that the law of nations precluded
applied the act of state doctrine in a case where a making acts of legitimate warfare a basis for liability
substantial international law issue is sought to be after the cessation of hostilities, and Ford v. Surget,
raised by an alien whose property has been which held an officer of the Confederacy immune from
expropriated. This country and this Court stand alone damages for the destruction of property during the
among the civilized nations of the world in ruling that war. American Banana Co. v. United Fruit Co., 213 U. S.
such an issue is not cognizable in a court of law. 347, a case often invoked for the blanket prohibition of
the act of state doctrine, held only that the antitrust
laws did not extend to acts committed by a private
The Court notes that the courts of both New York and
individual in a foreign country with the assistance of a
Great Britain have articulated the act of state doctrine
foreign government. Most of the language in that case
in broad language similar to that used by this Court
is in response to the issue of how far legislative
in Underhill v. Hernandez, 168 U. S. 250, and from this
jurisdiction should be presumed to extend in the
it infers that these courts recognize no international
absence of an express declaration. The Court held that
law exception to the act of state doctrine. The cases
the ordinary understandings of sovereignty warranted
relied on by the Court involved no international law
the proposition that conduct of an American citizen
issue. For, in these cases, the party objecting to the
should ordinarily be adjudged under the law where the
validity of the foreign act was a citizen of the foreign
acts occurred. Rather than ignoring international law,
state. It is significant that courts of both New York and
the law of nations was relied on for this rule of
Great Britain, in apparently the first cases in which an
statutory construction.
international law issue was squarely posed, ruled that
the act of state doctrine was no bar to examination of
the validity of the foreign act. Anglo-Iranian Oil Co. v. More directly in point are the Mexican seizures passed
Jaffrate, [1953] Int'l L.Rep. 316 (Aden Sup.Ct.): upon in Oetjen v. Central Leather Co., 246 U. S. 297,
and Ricaud v. American Metal Co., 246 U. S. 304.
In Oetjen, the plaintiff claimed title from a Mexican
"[T]he Iranian Laws of 1951 were invalid by
owner who was divested of his property during the
international law, for, by them, the property of the
Mexican revolution. The terms of the expropriation are
company was expropriated without any
not clear, but it appears that a promise of
compensation."
compensation was made by the revolutionary
government, and that the property was to be used for
Sulyok v. Penzintezeti Kozpont Budapest, 279 App.Div. the war effort. The only international law issue
528, 111 N.Y.S.2d 75, aff'd, 304 N.Y. 704, 107 N.E.2d arguably present in the case was by virtue of a treaty
604 (foreign expropriation of intangible property of the Hague Convention, to which both Mexico and the
denied effect as contrary to New York public policy). United States were signatories, governing customs of
war on land; although the Court did not rest the
In one of the earliest decisions of this Court even decision on the treaty, it took care to point out that this
arguably invoking the act of state doctrine, Hudson v. seizure was probably lawful under the treaty as a
Guestier, 4 Cranch 293, Chief Justice Marshall held that compelled contribution in time of war for the needs of
the validity of a seizure by a foreign power of a vessel the occupying army. Moreover, the Court stressed the
within the jurisdiction of the sentencing court could not fact that the title challenged was derived from a
be reviewed "unless the court passing the sentence Mexican law governing the relations between the
loses its jurisdiction by some circumstance which the Mexican Government and Mexican citizens. Aside from
law of nations can notice." (Emphasis added.) Underhill the citizenship of the plaintiff's predecessor in title, the
v. Hernandez, 168 U. S. 250, where the Court stated property seized was to satisfy an assessment of the
revolutionary government which the Mexican owner
had failed to pay. It is doubtful that this measure, even
as applied to non-Mexicans, would constitute a
violation of international law. Dow v. Johnson,
supra. In Ricaud, the titleholder was an American, and
the Court deemed this difference irrelevant "for the
reasons given" in Oetjen. In Ricaud, there was a
promise to pay for the property seized during the
revolution upon the cessation of hostilities and the
seizure was to meet exigencies created by the
revolution, which was permissible under the provisions
of the Hague Convention considered in Oetjen. This
declaration of legality in the Hague Convention, and
the international rules of war on seizures, rendered the
allegation of an international law violation
in Ricaud sufficiently frivolous so that consideration on
the merits was unnecessary. The sole question
presented in Shapleigh v. Mier, 299 U. S. 468,
concerned the legality of certain action under Mexican
law, and the parties expressly declined to press the
question of legality under international law. And the
Court's language in that case -- "[f]or wrongs of that
order, the remedy to be followed is along the channels
of diplomacy" -- must be read against the background
of an arbitral claims commission that had been set up
to determine compensation for claimants in the
position of Shapleigh, the existence of which the Court
was well aware.

"[A] tribunal is in existence, the International Claims


Commission, established by convention between the
United States and Mexico, to which the plaintiffs are at
liberty to submit and have long ago submitted a claim
for reparation."

In the other cases cited in the Court's


opinion, ante, pp. 376 U. S. 416-417, the act of state
doctrine was not even peripherally involved; the law
applicable in both United States v. Belmont, 301 U. S.
324, and United States v. Pink, 315 U. S. 203, was a
compact between the United States and Russia
regarding the effect of Russian nationalization decrees
on property located in the United States. No one
seriously argued that the act of state doctrine
precludes reliance on a bi-national compact dealing
with the effect to be afforded or denied a foreign act of
state.

An act of state has been said to be any governmental


act in which the sovereign's interest qua sovereign is
involved.

"The expression 'act of State' usually denotes 'an


executive or administrative exercise of sovereign
power by an independent State or potentate, or by its
or his duly authorized agents or officers.' The
expression, however, is not a term of art, and it
obviously may, and is in fact often intended to, include
legislative and judicial acts such as a statute, decree or
order, or a judgment of a superior Court."
Nabulsi, and Deputy Governor Michel Marto (together,
the sovereign defendants) were immune from suit
under the FSIA. The district court dismissed the
complaint as to all defendants. Following the
removal, the Jordanian defendants filed a motion to
dismiss, and PIBC also filed a motion to dismiss and, in
the alternative, for summary judgment. 1441(d)
(1994). The Central Bank of Jordan removed the case
to federal district court pursuant to the Federal
Sovereign Immunities Act (FSIA),

We also reverse and remand the forum non


conveniens dismissal of the claims against Petra Bank
and PIBC because the defendants failed to show that
ElFadl's claims can be filed in the Jordanian courts.
Although we find no merit to ElFadl's claim that the
court has jurisdiction over Deputy Governor Marto, we
reverse the pre-discovery dismissal as to Petra Bank
for lack of personal jurisdiction and remand to allow El
Fadl to have discovery of jurisdictional facts. He also
contends that the district court erred in dismissing his
claims against Deputy Governor Marto. On appeal, El
Fadl contends principally that the district court erred in
finding that he had an adequate alternative forum
available to sue PIBC in Jordan and that the court erred
in dismissing, prior to discovery, his claims against
Petra Bank for lack of personal jurisdiction in the
District of Columbia.

I.

The defendants maintain that ElFadl was employed


by Petra Bank (not PIBC) as a senior manager with
responsibility for currency and precious metals
Hassan ELFADL, Appellant v. CENTRAL BANK OF trading. He had signed a contract under which he
JORDAN, et al., Appellees. would be permanently employed for life as a senior
manager of Petra International Banking Corporation.
No. 947212. Decided: February 06, 1996 From 1982 to 1989 he was employed by PIBC in Jordan
Before: GINSBURG, ROGERS and TATEL, Circuit as manager of a regional office for Middle Eastern
Judges.Sam W. Burgan, Washington, DC, argued the clients. In his complaint, he alleges that he was
cause for appellant, with whom Frederick R. employed by PIBC, a subsidiary in the District of
McDermott, Oxon Hill, MD, was on the briefs. Columbia of Petra Bank, a privately owned bank in
Christopher M. Curran, argued the cause for appellees Jordan. ElFadl is a Lebanese national who has lived in
Central Bank of Jordan, et al., with whom George L. Jordan since 1982.
Paul, Washington, DC, was on the brief. John R.
Fornaciari, argued the cause for appellee Petra In August 1989, the Central Bank of Jordan announced
International Banking Corporation, with whom John J. that it On July 30, 1993, ElFadl filed suit in the District
Vecchione, Washington, DC, was on the brief. of Columbia. While the charges were pending, ElFadl
alleges that he was forbidden to leave Jordan. ElFadl
was prosecuted first in the Military Courts under Martial
Hassan ElFadl filed suit in the Superior Court of the Law and then in the State Security Court, where he
District of Columbia seeking to recover damages was declared innocent on April 9, 1992, which finding
against Petra International Banking Corporation was affirmed by the Prime Minister on August 2, 1992.
(PIBC) for wrongful termination of employment as ElFadl alleges that the military police detained him
well as for various tort claims against several Jordanian for five days and tortured him, until he was released on
institutions and officials: the Central Bank of Jordan, its bail. As part of the Jordanian authorities' investigation
Governor and Deputy Governor, and Petra Bank of the Petra Bank scandal, ElFadl was arrested on
(together, the Jordanian defendants). 1 The court October 29, 1989. On September 14, 1989, Marto
denied ElFadl's motion for reconsideration. Third, the sent ElFadl a letter in which PIBC terminated ElFadl's
court granted PIBC's motion to dismiss on forum non employment as senior manager of the PIBC office in
conveniens grounds, although the court had personal Amman. The Deputy Governor of the Central Bank,
jurisdiction, because ElFadl had an available forum in Michel Marto, was appointed to administer the
the Jordanian courts. 13334, 13422, and 13423. liquidation of PIBC, and Marto came to the District of
Second, the court granted Petra Bank's motion to Columbia for that purpose. Since then, Petra Bank
dismiss for lack of personal jurisdiction under the has been run by a Liquidation Committee appointed by
District of Columbia doing business and long-arm the Jordanian government. had uncovered widespread
statutes found in D.C.Code. First, the court ruled that financial improprieties at Petra Bank and placed Petra
the Central Bank, Governor Mohammed Saeed El Bank in receivership.
II. had moved to stay dismissal for lack of personal
jurisdiction until he had conducted discovery of
The court rejected ElFadl's arguments that his claims jurisdictional facts, the district court denied his motion
fell under the non-commercial tort exception or the as moot.13423(a) (1995). D.C.Code Ann. Third,
commercial activity exception to the FSIA. The the court agreed that it lacked specific jurisdiction over
court ruled that Nabulsi and Marto were also immune Petra Bank under the District of Columbia long-arm
because they were being sued in their official statute because none of ElFadl's claims arose from
capacities as agents of the Central Bank. 1603(a), and Petra Bank's alleged contacts with the District. Neither
had not waived its sovereign immunity. The court Petra Bank's maintenance of correspondent banking
found that the Central Bank was a foreign state relationships nor its ownership of more than 70% of the
under the FSIA, 28 U.S.C. The district court shares in PIBC sufficed for doing business.
dismissed the claims against the Central Bank,
Governor Nabulsi and Deputy Governor Marto under A.
the FSIA. Sovereign immunity.
14423(a)(3), (4). Id. ElFadl also alleges that Petra
We affirm. Because ElFadl failed to present any Bank caused him tortious injury in the District of
evidence that Marto was acting outside his official Columbia because he was employed in the District
capacity, the district court found that Marto had no when Petra Bank allegedly tortiously interfered with his
personal interests at stake in connection with Petra employment contract and defamed him. 13423(a)(2).
[Bank] or PIBC. On appeal, ElFadl has abandoned his Id. In addition, he alleges that, by entering into
claims against the Central Bank and Nabulsi but seeks collateral loan agreements in the District, Petra Bank is
to maintain his claims against Marto on the ground that contracting to supply services in the District of
Marto was acting not in his official capacity but in an Columbia. 13423(a)(1). D.C.Code Ann. He
individual capacity as Chairman and General Manager alleges, citing the long-arm statute, that various
of PIBC. general business contacts of Petra Bank with the
District of Columbia constitute transacting any
An individual can qualify as an agency or business in the District of Columbia. In his brief on
instrumentality of a foreign state. 2 We therefore appeal, ElFadl contends that the district court had
affirm the dismissal of the claims against Marto on personal jurisdiction over Petra Bank. Raising Issue on
grounds of sovereign immunity. ElFadl points to Appeal.
nothing more than the fact that Marto was Chairman
and General Manager of PIBC and sent the letter of Thus, we affirm the district court's holding that it
termination while he was in the District of Columbia. lacked personal jurisdiction under See Burger King
Thus, Marto's affidavit states that in connection with Corp. v. Rudzewicz, In any event, ElFadl has made no
the liquidation of PIBC, after being elected Chairman of showing that such conduct by Petra Bank was
PIBC and serving as its General Manager, he continued purposefully directed at the District of Columbia. As
to be employed only at the Central Bank and that his to ElFadl's claims of tortious injury under subsections
responsibilities with respect to PIBC were only a very (a)(3) and (4), it appears unlikely that one living and
minor part of [his] responsibilities as a Deputy working in Jordan would be injured in the District of
Governor of the Central Bank. Although ElFadl Columbia merely because his employer's principal
claims to be suing Marto in an individual capacity, the place of business was located here. See Helicopteros
only evidence in the record shows that Marto's Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414
activities in managing PIBC were neither personal nor n. 8, 104 S.Ct. 1868, 1872 n. 8, 80 L.Ed.2d 404 (1984)
private, but were undertaken only on behalf of the (Helicol). Because ElFadl's claims are not related to
Central Bank. see Chuidian v. Philippine Nat'l Bank. any of Petra Bank's general business contacts with the
ElFadl is not entitled to discovery against Marto District of Columbia, they cannot confer specific
because, in light of the evidence that Marto proffered jurisdiction under the long-arm statute. His reliance
to the district court and the absence of any showing by on the long-arm statute is misplaced because he has
ElFadl that Marto was not acting in his official failed to show any connection between the alleged
capacity, discovery would frustrate the significance jurisdictional acts and the District of Columbia. See
and benefit of entitlement to immunity from suit. Crane v. Carr, 814 F.2d 758, 763 (D.C.Cir.1987). El
Fadl's brief does not distinguish between transacting
business under the long-arm statute and doing
business for purposes of general jurisdiction. 6
III.
The district court's opinion makes clear that it so
because Petra Bank was not a person domiciled in, understood ElFadl's arguments, explaining: This is
organized under the laws of, or maintaining his or its the language of general jurisdiction, directly responsive
principal place of business in, the District of to Petra Bank's motion to dismiss for lack of jurisdiction
Columbia. First, the district court agreed that it under Id. at 1820. In support of his contention, he
lacked general jurisdiction over Petra Bank under recites a long list of general contacts between Petra
D.C.Code 13422, 13334 or 13423(a). The district Bank and the District of Columbia, see infra Part III(B),
court granted Petra Bank's motion to dismiss for lack of and maintains that Petra Bank had systematically
personal jurisdiction under Personal jurisdiction. 4 13 been involved in commercial banking activities in the
334. Second, the court agreed with Petra Bank that it District of Columbia, continuously and systematically
was not subject to general jurisdiction for doing conducted business in the District of Columbia, and
business in the District of Columbia under D.C.Code had a continuous presence and continuing
13422 (1995). D.C.Code Ann. 5 Although ElFadl involvement in business activities in the District of
Columbia. Appellant's Brief at 1720. 13334(a), in D.C.Cir.R. 28(a). Nothing in our local version of Rule
arguing, as he did in the district court, that Petra Bank 28 would require more. As noted, the district court
has been doing business in the District of Columbia. expressly ruled on the Jordanian Appellees' Brief and
On the other hand, ElFadl's brief repeats the language have devoted nine pages of the eleven page-section in
of what the courts have construed to be the District of their brief on personal jurisdiction to a comprehensive
Columbia's general jurisdiction statute, D.C.Code analysis of The Jordanian defendants recognized
that ElFadl was again contesting their claim of lack of
(emphasis added)7 To the contrary, the defendants jurisdiction under 13334. By contrast with the
seem to establish that their presence in the District of barren claims in Texas Rural Legal Aid, ElFadl
Columbia is very limited, and, in the case of Petra presented in his brief detailed factual assertions in
Bank, the presence of PIBC in the District is insufficient opposition to Petra Bank's assertions, adopted by the
to create personal jurisdiction over Petra Bank. 13 district court, that it was not doing business in the
334. [ElFadl] has failed to present any evidence to District of Columbia within the meaning of arguments,
support his position that the court could exercise are presented in the language of general jurisdiction,
jurisdiction over the Jordanian defendant pursuant to notwithstanding the misguided attempts by ElFadl's
D.C.Code The Court is inclined to agree. 13334 are counsel to link these contacts to the long-arm statute.
not sufficient to constitute the prima facie showing The doing business arguments in ElFadl's brief, in
necessary to carry the burden of establishing personal response to the district court's agreement with Petra
jurisdiction. The defendants argue that [ElFadl's] Bank's 13334(a) itself in his brief. Consequently,
conclusory statements alleging that the defendants are neither the opposing party, the district court, nor this
doing business in the District within the meaning of court has been misled by the fact that ElFadl did not
Doing business has been interpreted by the District of expressly cite D.C.Code 8 See Ross v. Product Dev.
Columbia Court of Appeals as requiring a continuing Corp., 736 F.Supp. 285, 289 n. 7 (D.D.C.1989); Bayles
corporate presence, and conducting substantial v. KMart Corp., 636 F.Supp. 852, 855 (D.D.C.1986).
business in the District. 13334(a) on its face appears to apply only to service
of process. Indeed, other district courts in this circuit
In explaining the application of Rule 28(a)(6), this have acknowledged that See supra note 7. 13
court has stated:Federal Rule of Appellate Procedure 334(a) to be a jurisdictional statute. Yet, as the
28(a)(6) requires the appellant's brief to include an district court here recognized, the District of Columbia
argument, which must contain the contentions of the courts have construed Chapter 4 of title 13 of the
appellant on the issues presented, and the reasons District of Columbia Code addresses jurisdiction while
therefor, with citations to the authorities, statutes, and chapter 3 of title 13 addresses service of process. 13
parts of the record relied on. 334(a) in haec verba becomes more understandable in
light of the confusion that sometimes attends the
But where counsel has made no attempt to address analysis of personal jurisdiction issues, Crane, 814
the issue, we will not remedy the defect Of course F.2d at 763, and the misleading organization of the
not all legal arguments bearing upon the issue in District of Columbia Code. Moreover, his failure to
question will always be identified by counsel, and we cite 13334(a) arguments. ElFadl did not
are not precluded from supplementing the contentions distinguish between specific and general jurisdiction in
of counsel through our own deliberation and research. opposing Petra Bank's motion to dismiss for lack of
Failure to enforce [Rule 28(a)(6)] will ultimately personal jurisdiction in the district court, and by
deprive us in substantial measure of that assistance of making the same arguments in his brief on appeal, it is
counsel which the system assumesa deficiency that clear that he has not waived his
we can perhaps supply by other means, but not
without altering the character of our institution. The Recognizing that the hard analysis comes in
premise of our adversarial system is that appellate determining when an issue or claim is properly before
courts do not sit as self-directed boards of legal inquiry the court, Independent Ins. Agents v. Clarke, 955 F.2d
and research, but essentially as arbiters of legal 731, 742 (D.C.Cir.1992) (Silberman, J., dissenting),
questions presented and argued by the parties before rev'd sub nom. United States Nat'l Bank v. Independent
them Ins. Agents, 508 U.S. 439, 113 S.Ct. 2173, 124 L.Ed.2d
402 (1993), we find that ElFadl's brief presents both
McBride v. Merrell Dow Nor will the court address possible bases, general and specific, fo13334(a).
issues that are not at all mentioned in the appellant's Moreover, prudential concerns should not lead us to
brief, by contrast with a situation in which an construe ElFadl's brief as waiving reliance on 13
appellant incorporates by reference or otherwise 334(a) basis for personal jurisdiction is potentially
implicitly raises a generic legal claim. Texas Rural dispositive of Petra Bank's motion to dismiss for lack of
Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 697 personal jurisdiction. In the instant case, resolution of
98 (D.C.Cir.1991); see also Rollins Envtl. Servs. (NJ) the United States Nat'l Bank v. Independent Ins.
Inc. v. EPA, 937 F.2d 649, 652 n. 2 (D.C.Cir.1991). Agents, 508 U.S. 439, 447, 113 S.Ct. 2173, 2178, 124
Thus, when an appellant contented itself with L.Ed.2d 402 (1993) (quoting Arcadia v. Ohio Power Co.,
conclusory assertions, the [a]ppellees did not 498 U.S. 73, 77, 111 S.Ct. 415, 418, 112 L.Ed.2d 374
address the merits of the claim at all, and the issue (1990)) (ellipsis in U.S. Nat'l Bank). The Supreme
was not passed upon below, this court normally will Court has upheld a decision by this court to reach an
not address claims raised in such a cursory fashion. issue antecedent to and ultimately dispositive of the
Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) dispute before it, even an issue the parties fail to
(Scalia, J.). & Pharmaceuticals, Inc., 800 F.2d 1208, identify and brief. Kamen v. Kemper Fin. Servs., Inc.,
1211 (D.C.Cir.1986). 500 U.S. 90, 99, 111 S.Ct. 1711, 1718, 114 L.Ed.2d 152
(1991). When an issue or claim is properly before the
court, the court is not limited to the particular legal 1873. 13334(a) requires a continuing corporate
theories advanced by the parties, but rather retains presence in the forum directed at advancing the
the independent power to identify and apply the proper corporation's objectives. By contrast, The
construction of governing law. 13334(a). The court, allegations concerning the loan, the consequent
in any event, has unquestioned authority to reach the litigation, and the collateral agreements are mere
issue of general jurisdiction, even if ElFadl had waived isolated and sporadic contacts unrelated to the claims
any reliance on Indeed, ElFadl asserts, in his in the instant case. ElFadl asserts the following facts
statement of issues presented, that [t]he District about Petra Bank's contacts with the District of
Court erred in dismissing claims against a foreign Columbia: (1) Petra Bank issued a commercial loan of
defendant for lack of personal jurisdiction, prior to over $500,000 in 1989; (2) in litigation concerning that
discovery or a hearing.r personal jurisdiction over loan in the D.C. Superior Court, Petra Bank filed a
Petra Bank. counter-claim; (3) Petra Bank has entered into several
collateral agreements covering loans in the District of
SEC v. Recile, 10 F.3d 1093, 1096 (5th Cir.1993) (per Columbia, using a form contract that selects as the
curiam); accord Federal Sav. The lack of any prejudice governing law the laws of the District of Columbia; (4)
to the appellee or to the institutional structure of the Petra Bank owns 70% of PIBC, its District of Columbia
court from this apparently inadvertent omission subsidiary, with which Petra Bank maintains bank
strengthens the general proposition that the court accounts in the District of Columbia; (5) ElFadl sent
should liberally construe briefs in determining issues millions of dollars by wire transfers through Petra Bank
presented for review. Cf. Mylan Labs., Inc. v. Akzo, from PIBC offices in Jordan to PIBC's main office in the
N.V., 2 F.3d 56, 60 n. 2 (4th Cir.1993). Efficiency in District of Columbia; and (6) in a deposition for
appellate adjudication is not served by letting stand a another case, PIBC's general manager, Randolph Old,
potentially erroneous decision because counsel for the stated that Petra Bank had joint loans with PIBC and
appellant has failed to cite the title and section number that PIBC acted as Petra Bank's collection agent in
of a statute that both parties address and the district the District of Columbia. Helicol, 466 U.S. at 416, 104
court discussed in its decision on personal jurisdiction. S.Ct. at 1873; see also Perkins v. Benguet Consol.
The jurisdictional issue is fully presented to us, with Mining Co., 342 U.S. 437, 438, 72 S.Ct. 413, 414, 96
the assistance that counsel can provide. Cf. United L.Ed. 485 (1952). For general jurisdiction, the Due
States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (A Process Clause requires that the defendant have
skeletal argument, really nothing more than an continuous and systematic general business contacts
assertion, does not preserve a claim.). This court has with the forum. 13334(a); Edmond v. United States
the benefit of briefing by both parties as well as the Postal Serv. Gen. Counsel, 949 F.2d 415, 424
ruling of the district court. Declining to reach the issue (D.C.Cir.1991). See D.C.Code Ann. On the present
of general jurisdiction would not further the prudential record, ElFadl has not made a prima facie case that
concerns underlying Federal Rule of Appellate Petra Bank was doing business in the District of
Procedure 28 as articulated in Carducci v. Regan. & Columbia. 9 Although a parent-subsidiary relationship
Cf. Sikora v. Brenner, 379 F.2d 134, 136 (D.C.Cir.1967); alone is insufficient, Cannon Mfg. Co. v. Cudahy
Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Packing Co., 267 U.S. 333, 33637, 45 S.Ct. 250, 251,
Cir.1978). Any other result would be unduly harsh 69 L.Ed. 634 (1925), if parent and subsidiary are not
because the issue involves jurisdiction, thereby really separate entities, I.A.M. Nat'l Pension Fund v.
jeopardizing a party's right to have the merits of his Wakefield Indus., Inc., 699 F.2d 1254, 1259
claims heard before any discovery has taken place. (D.C.Cir.1983), or one acts as an agent of the other,
Loan Ins. Corp. v. Haralson, 813 F.2d 370, 373 n. 3 Wells Fargo & See Ramamurti v. RollsRoyce Ltd., 454
(11th Cir.1987). F.Supp. 407, 413 (D.D.C.1978), aff'd mem., 612 F.2d
587 (D.C.Cir.1980). Yet ElFadl has shown only that
B. Petra Bank owns the majority of shares in PIBC and
that the two corporations have worked together on
Crane v. Carr, 814 F.2d 758 (D.C.Cir.1987).At the very certain transactions. Co. v. Wells Fargo Express Co.,
least, ElFadl is entitled to discovery on this matter 556 F.2d 406, 419 (9th Cir.1977), the local subsidiary's
before it is decided. In his brief on appeal, ElFadl contacts can be imputed to the foreign parent.
maintains that [q]uestions put to Petra Bank on
discovery regarding its business activities in the Id.; see also Wyatt v. Kaplan, 686 F.2d 276, 28384
District of Columbia went unanswered In opposing (5th Cir.1982). The Edmond court distinguished
the Jordanian defendants' motion to dismiss for lack of Naartex as a case where the allegations of conspiracy
personal jurisdiction, ElFadl requested the district were conclusory. 949 F.2d at 425. Similarly, in
court to stay ruling on the motion until he had Edmond, this court held that the district court abused
conducted limited discovery on [t]he extent of Petra its discretion in denying jurisdictional discovery when
Bank's business activities in the District of Columbia. the plaintiff had alleged the existence of a conspiracy
As part of his contention that the district court had that would allow the court to attribute the local
general jurisdiction over Petra Bank, ElFadl requests conspirator's contacts with the District of Columbia to
discovery from Petra Bank of jurisdictional facts. the co-conspirators. 814 F.2d at 764. The Crane
Discovery of facts for general jurisdiction. court held that the plaintiff was entitled to a fair
opportunity to inquire into [the defendant]'s affiliations
ElFadl's allegations concerning the relationship with the District. Id. at 788 (quoting Zerilli v. Smith,
between PIBC and Petra Bank attempt to attribute the 656 F.2d 705, 716 (D.C.Cir.1981)); see Edmond v.
subsidiary's contacts with the District of Columbia to United States Postal Serv. Gen. Counsel, 953 F.2d 1398,
the parent corporation.AMAF Int'l Corp., 428 A.2d at 1401 (D.C.Cir.1992) (R.B. Ginsburg, J., concurring in
851; see also Helicol, 466 U.S. at 41617, 104 S.Ct. at denial of rehearing en banc). Because no discovery at
all had been allowed, Crane differs from Naartex Thus, for example, dismissal would not be appropriate
Consulting Corp. v. Watt, 722 F.2d 779 (D.C.Cir.1983), where the alternative forum does not permit litigation
cert. denied, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d of the subject matter of the dispute. In rare
355 (1984), in which the court held that the district circumstances, however, where the remedy offered by
court did not abuse its discretion in denying further the other forum is clearly unsatisfactory, the other
jurisdictional discovery when the plaintiff had already forum may not be an adequate alternative, and the
had ample opportunity to take discovery. In initial requirement may not be satisfied. Ordinarily,
Crane, 814 F.2d at 760, this court reversed when a this requirement will be satisfied when the defendant is
plaintiff's case was dismissed with no opportunity for amenable to process in the other jurisdiction. At the
discovery on the issue of jurisdiction. Even though outset of any forum non conveniens inquiry, the court
ElFadl's present jurisdictional allegations are must determine whether there exists an alternative
insufficient, he has sufficiently demonstrated that it is forum.
possible that he could supplement them through
discovery. See, e.g., Mercier v. Sheraton Int'l, Inc., 935 F.2d 419,
423, 425 (1st Cir.1991); In re Air Crash Disaster Near
A plaintiff faced with a motion to dismiss for lack of New Orleans, 821 F.2d 1147, 1164 (5th Cir.1987) (en
personal jurisdiction is entitled to reasonable banc), vacated in The defendant bears the burden of
discovery, lest the defendant defeat the jurisdiction of proving that there is an adequate alternative forum.
a federal court by withholding information on its Friends for All Children, Inc. v. Lockheed Aircraft Corp.,
contacts with the forum. If litigation had not 717 F.2d 602, 607 (D.C.Cir.1983). Availability of
fortuitously ensued over Petra Bank's $500,000 adequate alternative fora is a threshold test in the
commercial loan, ElFadl would not have been able to sense that a forum non conveniens motion cannot be
challenge the statements by Petra Bank's affiants that granted unless the test is fulfilled. Pain v. United
it had not extended such loans. Petra Bank initially Technologies Corp., 637 F.2d 775, 784 (D.C.Cir.1980),
denied having any contacts with the District of cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d
Columbia other than as a correspondent bank. His 116 (1981). Only if there is an adequate alternative
theory that Petra Bank may have had further, as yet forum must the court then weigh the relative
unknown, connections to the District is not implausible. conveniences to the parties against the presumption of
His allegations, although they fall short of a prima the plaintiff's forum selection. Piper Aircraft Co. v.
facie case that Petra Bank was doing business in the Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 265 n.
District of Columbia, are not conclusory to the extent 22, 70 L.Ed.2d 419 (1981) (citation omitted). part on
that ElFadl has alleged specific transactions. ElFadl's other grounds, 490 U.S. 1032, 109 S.Ct. 1928, 104
request is for initial discovery, limited to jurisdictional L.Ed.2d 400 (1989); Cheng v. Boeing Co., 708 F.2d
facts. 1406, 1411 (9th Cir.), cert. denied, 464 U.S. 1017, 104
S.Ct. 549, 78 L.Ed.2d 723 (1983); Schertenleib v.
Accordingly, we reverse the dismissal of ElFadl's Traum, 589 F.2d 1156, 1160 (2d Cir.1978); see also
claims against Petra Bank for lack of personal Watson v. Merrell Dow Pharmaceuticals, Inc., 769 F.2d
jurisdiction and remand those claims to the district 354, 357 (6th Cir.1985).
court in order to allow ElFadl to conduct reasonable
discovery on personal jurisdiction. ReidWalen v. Hansen, 933 F.2d 1390, 1394 (8th
Cir.1991); see also Lacey v. Cessna Aircraft Co., 862
F.2d 38, 43 (3d Cir.1988). Although this is a deferential
standard of review, the district court abuses its
IV. discretion when it fails to consider a material factor or
clearly errs in evaluating the factors before it, Mercier,
In light of the affirmance of the dismissal of the claims 935 F.2d at 423, or does not hold the defendants to
against the sovereign defendants on other grounds, El their burden of persuasion on all elements of the forum
Fadl's objections to the dismissal on forum non non conveniens analysis. Piper Aircraft, 454 U.S. at
conveniens relate to the remaining defendants, Petra 257, 102 S.Ct. at 266; Pain, 637 F.2d at 781. Our
Bank and PIBC. The district court dismissed ElFadl's review of the grant of a motion to dismiss for forum
claims against all defendants on the ground of forum non conveniens is for abuse of discretion.
non conveniens. Forum non conveniens.
See Camejo v. Ocean Drilling Accordingly, the
In deciding a forum non conveniens motion, the district defendant must provide more detailed information if
court must first establish that there is an adequate the plaintiff provides evidence that controverts the
alternative forum: defendant's evidence. Lacey, 862 F.2d at 44. The
amount of information that the defendant must
provide, in supporting affidavits or other evidence,
depends on the facts of the individual case. Mercier,
935 F.2d at 425. Because the defendant has the
burden of establishing that an adequate alternative
forum exists, this court will reverse when the affidavit
through which [the defendant] attempted to meet its
burden contains substantial gaps. Piper Aircraft, 454
U.S. at 258, 102 S.Ct. at 267. To show the existence of
an adequate alternative forum, the defendant must
provide enough information to enable the District
Court to evaluate the alternative forum. &
Exploration, 838 F.2d 1374, 137980 & See C.A. La Cir.1993). A foreign forum is not inadequate merely
Seguridad v. Transytur Line, 707 F.2d 1304, 130809 because it has less favorable substantive law, id. at
(11th Cir.1983). If the record before the court is so 24755, 102 S.Ct. at 26165, because it employs
fragmentary that it is impossible to make a sound different adjudicative procedures, see, e.g., Lockman
determination of whether an adequate alternative Found. v. Evangelical Alliance Mission, 930 F.2d 764,
forum exists, the court will remand for further 768 (9th Cir.1991), or because of general allegations of
development of the facts. n. 17 (5th Cir.1988). corruption in the judicial system. Piper Aircraft, 454
U.S. at 254 n. 22, 102 S.Ct. at 265 n. 22. Then this
Cf. Mercier, 935 F.2d at 425; C.A. La Seguridad, 707 court would be faced with the rare circumstance[] in
F.2d at 1308. Given the gap in PIBC's expert's affidavit which the alternative forum does not permit litigation
and the undeveloped state of the record on this issue, of the subject matter of the dispute. onsequently, if
the district court erred in finding that PIBC or Petra ElFadl's expert is correct in describing the legal
Bank met its burden of showing that Jordan is an situation in Jordan, the Jordanian courts would appear
adequate alternative forum. Yet PIBC's expert fails to to be closed to ElFadl's claims against Petra Bank and
address various potentially dispositive provisions of perhaps even to claims against PIBC.
Jordanian law that ElFadl brought to the district court's
attention. AlHadidi also explains that the Jordanian See ReidWalen, 933 F.2d at 1394. The district court
Civil Code recognizes various causes of action that El was required to hold PIBC and Petra Bank to their
Fadl has brought. PIBC submitted an affidavit from a burden of persuasion on this issue. Moreover, the
Jordanian attorney, Rami M. AlHadidi, who states that district court appears to have incorrectly placed the
Jordanian courts are open to ElFadl to adjudicate burden of proving the inadequacy of the Jordanian
these claims against the defendants. PIBC and Petra courts upon ElFadl in stating that: [A]s the plaintiff
Bank could not prove on the present record that Jordan [ElFadl] has failed to demonstrate that this action
was an adequate alternative forum. would be barred in its entirety in Jordan, the Court
determines that an adequate alternative forum exists.
Law No. 2 further declared that: As part of the lifting See Mercier, 935 F.2d at 423. This court will remand
of martial law, Law No. 2 referred [a]ll lawsuits then when the district court fails to consider a material
in the military courts to the competent Courts, matter in dispute. This conclusory statementeven
except that [n]otwithstanding the [general] provisions though not specifically contradicted in Tukan's affidavit
, the lawsuits of Petra Bank Company which are as it pertains to PIBCflies in the face of evidence that
currently at the Martial Courts under investigations or ElFadl may not be able to sue Petra Bank, and the
trial shall be referred to the State Security Court. He statement is insufficient to show that he can sue PIBC
called the district court's attention to a Jordanian in Jordan. PIBC's only evidence showing that ElFadl
statute, Law No. 2 for the year 1992, the Law of Lifting can sue PIBC in Jordan was the conclusory statement in
of Responsibility as a Result of Cancellation of the AlHadidi's affidavit that Jordanian courts are open to
Martial Law (issued Sep. 12, 1991) (Law No. 2). El ElFadl to adjudicate these claims against the
Fadl maintains that the Jordanian courts lack defendants. Petra Bank, which argued only that
jurisdiction over claims based on actions taken in Resolution No. 4/90 directed ElFadl's claims to
connection with the Petra Bank scandalincluding insolvency proceedings, failed to address Law No. 2
actions on which he bases his claims for recovery. altogether. PIBC and Petra Bank failed to respond
with evidence that the Jordanian courts are available to
All civil and military employees as well as all the other ElFadl. Yet the attorney (Tukan) makes precisely that
persons who undertook the implementation of the claim in his affidavit, based on his interpretation of the
instructions of the Military Administration or had any Jordanian statutes. The district court concluded that
relation with the implementation thereof at any time the affidavit submitted by [ElFadl's] Jordanian attorney
during the time when the martial law was in effect does not state unequivocally that [ElFadl] is barred
shall be discharged from any legal responsibility which from bringing this suit in Jordan.
resulted or will result from their actions pursuant to the
provisions. Although this procedural difference may not render El
Fadl's remedy in Jordan inadequate, see Lockman
In addition, ElFadl cited two resolutions regarding Found., 930 F.2d at 76869, the district court should
Petra Bank.10 PIBC's expert, AlHadidi, does not consider whether the situation would be different if El
address any of these authorities in his affidavit.Based Fadl shows that filing a criminal complaint requires the
on the foregoing legal authorities, ElFadl's expert, a cooperation of the Jordanian authorities, who worked
Jordanian attorney named Ibrahim J. Tukan, states in with the defendants in prosecuting ElFadl in the
his affidavit that [t]he above listed laws, decrees, and military courts. In addition, because ElFadl's expert,
statutes constitute an absolute prohibition to Mr. El Tukan, also concluded that ElFadl's intentional tort
Fadl to bring his causes of action in Jordan. claims could not be brought in a civil lawsuit for
recovery of damages, but could only be brought in
C See Ceramic Corp. v. Inka Maritime Corp., 1 F.3d 947, conjunction with a criminal complaint, the district court
949 (9th Cir.1993). But if the foreign forum would should determine whether the Jordanian courts are
deny him access to its judicial system on the claims in inadequate for that reason. In determining whether
his complaint, dismissal on forum non conveniens the Jordanian courts provide ElFadl with an alternative
grounds is inappropriate. ElFadl's repeated reliance forum, the district court should also determine whether
on a State Department report expressing concern the Jordanian decrees would bar suit against PIBC. On
about the impartiality of the Jordanian court system, remand, the district court should determine the
for example, is unavailing. See, e.g., Blanco v. Banco accuracy of ElFadl's uncontroverted characterization
Industrial de Venezuela, 997 F.2d 974, 98182 (2d of the legal effect of the decrees as they relate to
claims against Petra Bank. For these reasons, we hold doing business in the District, process may be served
that the district court erred in dismissing ElFadl's on the agent of the corporation or person conducting
claims against Petra Bank and PIBC on forum non its business, or, when he is absent and can not be
conveniens grounds. found, by leaving a copy at the principal place of
business in the District, or, where there is no such
Even if the district court determines that there is an place of business, by leaving a copy at the place of
available forum, the court may condition a dismissal on business or residence of the agent in the District, and
PIBC's agreement to be served in the District of that service is effectual to bring the corporation before
Columbia for suit in Jordan. See, e.g., Blanco, 997 F.2d the court.D.C.Code .
at 984; Mercier, 935 F.2d at 426; Baris v. Sulpicio
Lines, Inc., 932 F.2d 1540, 155152 (5th Cir.1991). If 613422 because the record shows that Petra Bank is
doubts about the availability of an alternative forum organized under the laws of Jordan and maintains its
remain due to the difficulties in determining Jordanian principal place of business there.We also affirm the
law, the district court may dismiss for forum non district court's holding that it lacked jurisdiction under
conveniens, but only if conditioned on the defendants' .
submitting to jurisdiction in Jordan and on the
Jordanian courts' acceptance of the case. Pain, 637 7428 A.2d at 850.AMAF relied on this court's opinion
F.2d at 785. If the district court on remand finds that in Goldberg v. Southern Builders, Inc., 184 F.2d 345,
PIBC and Petra Bank have met their burden to show 34647 (D.C.Cir.1950). Guevara, 598 A.2d at 1159
that Jordan is an adequate alternative forum, and the (citing AMAF Int'l Corp., 428 A.2d 849). 13334(a) is
court again concludes that the balance of private and merely a service of process act, superseded when the
public interests weighs in favor of forum non long-arm statute was enacted, and construed the
conveniens dismissal, the trial judge must finally statute to confer[] jurisdiction upon trial courts here
ensure that [ElFadl] can reinstate [his] suit in the over foreign corporations doing substantial business in
alternative forum without undue inconvenience or the District of Columbia, even though the claim arose
prejudice. 11 from a transaction which occurred elsewhere, and
hence, outside the scope of the long-arm statute. In
Accordingly, we reverse the dismissal of the claims those cases, the D.C. Court of Appeals rejected the
against Petra Bank for lack of personal jurisdiction and argument that The district court cited AMAF Int'l
remand to allow ElFadl to conduct discovery of Corp. v. Ralston Purina Co., 428 A.2d 849, 851
jurisdictional facts; we also reverse the dismissal of (D.C.1981) (per curiam), and Guevara v. Reed, 598
the claims against Petra Bank and PIBC on grounds of A.2d 1157, 1159 (D.C.1991). .
forum non conveniens, remanding for a finding
whether Petra Bank and PIBC can show that Jordan is 8 Although ElFadl concludes that his claims arise
an adequate alternative forum; otherwise, we affirm. from Petra's role in taking over and managing PIBC,
he makes numerous other allegations of continuous
FOOTNOTES contacts by Petra Bank that are unrelated toNot all
the contacts recited by ElFadl can logically be tied into
1The complaint sought damages from PIBC for breach his assertion of specific jurisdiction. . 13334(a).
of employment contract, refusal to pay wages and Thus, many of ElFadl's allegations would relate only to
negligent termination of employment contract; from a claim for general jurisdiction under His claims
the sovereign defendants (the Central Bank, its obviously do not aris[e] from these unrelated
Governor and Deputy Governor) and PIBC for malicious contacts. its takeover of PIBC (e.g., Petra Bank by its
prosecution and false arrest; from the sovereign own and separate conduct made commercial loans).
defendants for false imprisonment; and from all
defendants for libel and intentional infliction of 9A.I. Trade Fin., Inc. v. Petra Int'l Banking Corp., 62 F.3d
emotional and physical distress.. 1454, 1457 (D.C.Cir.1995).In an unrelated case, the
court did not reach the issue of whether PIBC was the
2which is neither a citizen of a State of the United alter ego of Petra Bank. .
States as defined in section 1332(c) and (d) of this
title, nor created under the laws of any third country. 10 As from the date of the start of the liquidation no
which is an organ of a foreign state or political court action or any new judicial proceedings may be
subdivision thereof, or a majority of whose shares or heard against Petra Bank or the liquidator.In Resolution
other ownership interest is owned by a foreign state or No. 230/90, entitled Suspension of Lawsuits and issued
political subdivision thereof, and(3)which is a separate on September 8, 1990, the Petra Bank Liquidation
legal person, corporate or otherwise, and(2)1603(b) Committee announced that:[T]he Liquidation
provides:An agency or instrumentality of a foreign Committee has resolved [to] [r]equest the competent
state means any entity(1)28 U.S.C. . Courts to suspend the progress in all the lawsuits in
which the Petra Bank is a party whether as a plaintiff or
3In light of our disposition, we do not reach the district defendant before the Courts of Conciliation, First
court's alternative holding that it lacked personal Instance and Appeal as well as the Wages Authority
jurisdiction over Deputy Governor Marto.. Court of the Ministry of Labour and [to] commission the
Director General to communicate with the concerned
413422 of the D.C.Code.The district court ruled that authorities for the implementation of this resolution.El
it had personal jurisdiction over PIBC under . Fadl has also produced letters from Bassam Atari, the
deputy chairman of the Liquidation Committee, to the
513334(a) (1995) (Service on foreign corporations) President of the Amman Court of Appeals and to the
provides:In an action against a foreign corporation President of the Magistrate Court of Amman, in which
Atari refers to the two resolutions quoted above and The Multi-District LitigationA.
requests the judges on both those courts to implement
the resolutions and suspend all the lawsuits in which The judgment included an injunction restraining the
the Petra Bank is a party.Resolution No. 4/90 of the Estate and its agents, representatives and aiders and
Economic Security Committee, entitled Liquidation of abettors from transferring or otherwise conveying any
Petra Bank Public Shareholding Company Ltd., issued funds or assets held on behalf of or for the benefit of
on July 15, 1990, decrees that:Upon the request of the the Estate pending satisfaction of the judgment.In
liquidator, the courts and the execution departments Multi-District Litigation (MDL) Case No. 840
shall stop the proceedings in any court action or act at (D.Hawaii), 9,539 victims of human rights violations
present undertaken by Petra Bank or against it. . won a $1,964,005,859.90 judgment against the Estate
of Ferdinand E. Marcos (Estate or Marcos Estate).
11 The district court did not reach the merits of El
Fadl's arguments for tolling; inasmuch as the merits Post-Judgment Enforcement Proceeding-The Hilao
rest on findings of fact that this court is ill equipped to ActionB.
make, nor do we.12302(a)(3). D.C.Code Ann. El
Fadl responded that the running of the statute of Writs of execution and notices of levy were thereafter
limitations period was tolled by reason of imprisonment delivered to the Banks' offices in California. See Hilao
or, alternatively, duress. 12301, because his causes v. Estate of Marcos, 95 F.3d 848, 850 (9th Cir.1996). In
of action accrued in September 1989 and he did not an attempt to collect on the judgment, the plaintiffs in
file suit until July 1993. We do not decide PIBC's the MDL case registered their judgment in the Central
contention that ElFadl's claims were barred by District of California. 1 Id. None of these deposit
D.C.Code . accounts were maintained at the California offices of
either Bank. Id.The notices of levy purported to levy
Opinion for the Court filed by Circuit Judge ROGERS. against deposit accounts in the name of Ferdinand E.
Marcos or twenty-six of his alleged aliases or
pseudonyms.

Id. The district court denied the Banks' motions and


sua sponte entered an order directing the Banks to
After the plaintiffs indicated that they were seeking
assets and information from the Banks' offices in
Switzerland, both Banks filed motions to vacate and
quash the notices of levy. Id. at 856. The Banks
appealed and we reversed. Id. at 851. deposit into
the Registry of the United States District Court for the
Central District of California as an interpleader
CREDIT SUISSE; Swiss Bank Corporation, proceeding all assets in the possession of the BANKS
Petitioners, v. UNITED STATES DISTRICT COURT that are the subject matter of this proceeding.
FOR THE CENTRAL DISTRICT OF CALIFORNIA,
Respondent, Loretta Ann Rosales; Hilda Narciso, We first held that, pursuant to Fed.R.Civ.P. 69(a), 2 Id. at
Real Parties in Interest. 854. The district court should have therefore granted
the Banks' motions to vacate and quash the levies. Id.
No. 97-70193.Decided: December 03, 1997 at 853-54. Id. Because none of the Estate's assets
were held in deposit accounts located in California, the
Before: HALL, and T.G. NELSON, Circuit Judges, and service of the notice of levy at the Banks' California
WINMILL,* District Judge.Michael H. Rauch,Fried, Frank, offices was ineffective. California law requires
Harris, Shriver & Jacobson, New York City, for petitioner personal service of a notice of levy on a deposit
Credit Suisse; Paul J. Bschorr, Dewey Ballantine, New account to be made at the branch or office of the
York City, and Matthew M. Walsh, Dewey Ballantine, financial institution at which the account is actually
Los Angeles, California, for petitioner Swiss Bank. carried. Id. at 853. the post-judgment enforcement
Robert A. Swift, Kohn, Swift & Graf, Philadelphia, proceeding had to comply with California law.
Pennsylvania, and Jon M. Van Dyke, Honolulu Hawaii,
for real parties in interest. Stephen E. Becker, Shaw, Id. at 855. In coming to this conclusion, we noted that
Pitman, Potts & Trowbridge, Washington, DC, for although the Banks had previously been found to be
amicus. agents and representatives of the Marcos Estate, the
significance of this finding was outweighed by the fact
Because the relief sought in the Rosales action would that the Banks were not parties before the court in the
violate the act of state doctrine, we grant the petition. case in which the finding was made. Id. at 856.
1651(a). We have jurisdiction pursuant to 28 U.S.C. Second, we held that because Rule 69(a) essentially
Credit Suisse and Swiss Bank Corporation (the limits a district court's mechanism for enforcement of a
Banks) petition this court for a writ of mandamus, money judgment to a writ of execution, the court had
prohibition or other appropriate extraordinary relief no authority to order the Banks to deposit the
from the district court's denial of the Banks' motion to contested funds into the court registry.
dismiss the action Rosales et al. v. Credit Suisse and
Swiss Bank Corp., No. CV 96-6419 (C.D.Cal.) (Real, J.)
The Rosales ActionC.
(Rosales action).
Following our decision in Hilao, counsel for the
I.
plaintiffs3 filed the Rosales action directly against the
Banks, seeking the following relief: (1) an injunction 1291,The district court's denial of the Banks' motion
restraining the Banks from transferring or otherwise to dismiss is not a final decision within the meaning
conveying any funds or assets held by the Banks on of 28 U.S.C. 6 1292(b) motion); Christensen v.
behalf of the Marcos Estate, except as ordered by the United States Dist. Court, 844 F.2d 694, 696 (9th
district court; and (2) a declaration that the Chinn Cir.1988) (granting mandamus relief where district
assignment4 is valid and binding on the Banks. court refused to certify question for immediate
appeal). See Valenzuela-Gonzalez, 915 F.2d at 1279
The district court denied the Banks' motion to dismiss, (holding that there was no other adequate means to
and the Banks' subsequent motion for certification for obtain review following district court's denial of The
interlocutory appeal.The Banks filed a motion to Banks thus have no other means of obtaining
dismiss the Rosales action pursuant to Fed.R.Civ.P. immediate review of the denial of their motion to
12(b) on the ground that, among other things, the dismiss. 1292(b), permissive interlocutory appeal is
injunctive and declaratory relief sought in the action not available. Furthermore, because the district court
would violate the act of state doctrine. 5 The Banks denied the Banks' motion for certification for
then filed the present petition, requesting this court to interlocutory appeal under 28 U.S.C. See Catlin v.
issue a writ of mandamus compelling the district court United States, 324 U.S. 229, 236, 65 S.Ct. 631, 635, 89
to vacate its denial of the motion to dismiss, and L.Ed. 911 (1945). and it is therefore not immediately
directing the district court to dismiss the action. reviewable.

II. Damage or Prejudice to Petitioner Not Correctable on


AppealB.
Valenzuela-Gonzalez v. United States Dist. Court, 915
F.2d 1276, 1279 (9th Cir.1990) (citation and quotations Requiring the Banks to choose between being in
omitted). Before a writ will issue, this court must be contempt of court and violating Swiss law clearly
firmly convinced that the district court has erred and constitutes severe prejudice that could not be
that the petitioner's right to the writ is clear and remedied on direct appeal. The district court's order
indisputable. Id. (quotations omitted). [O]nly compelling the Banks to respond to the discovery
exceptional circumstances amounting to a judicial requests therefore places the Banks in the position of
usurpation of power will justify the invocation of this having to choose between being in contempt of court
extraordinary remedy. Bauman v. United States Dist. for failing to comply with the district court's order, or
Court, 557 F.2d 650, 654 (9th Cir.1977) (quotations violating Swiss banking secrecy and penal laws by
omitted). A writ of mandamus has traditionally been complying with the order. It is undisputed that
used in the federal courts only to confine an inferior provision of the requested information, and production
court to a lawful exercise of its prescribed jurisdiction of the requested documents, would violate Swiss
or to compel it to exercise its authority when it is its banking secrecy and other laws which carry criminal
duty to do so. penalties. These discovery requests include
interrogatories seeking detailed information about
In determining whether a writ should issue, this court accounts purportedly located in Switzerland and
looks to five specific guidelines, known as the Bauman requests to produce a wide variety of documents
guidelines: maintained at the Banks' Switzerland offices. The
district court issued an order, stayed by this court,
(5) The district court's order raises new and important compelling the Banks to respond to the plaintiffs'
problems, or issues of law of first impression.(4) The discovery requests.
district court's order is an oft-repeated error, or
manifests a persistent disregard of the federal rules. Order Clearly Erroneous as a Matter of Law-Act of State
(3) The district court's order is clearly erroneous as a DoctrineC.
matter of law. (This guideline is closely related to the
first.) (2) The petitioner will be damaged or prejudiced The classic statement of the act of state doctrine is
in a way not correctable on appeal. The party seeking found in Underhill v. Hernandez, 168 U.S. 250, 252, 18
the writ has no other adequate means, such as a direct S.Ct. 83, 84, 42 L.Ed. 456 (1897), where Justice Fuller
appeal, to attain the relief he or she desires. (1) stated for the Court:

Bauman, 557 F.2d at 655. In fact, rarely will a case Redress of grievances by reason of such acts must be
arise where all these guidelines point in the same obtained through the means open to be availed of by
direction or where each guideline is even relevant or sovereign powers as between themselves.Every
applicable. Valenzuela-Gonzalez, 915 F.2d at 1279. sovereign State is bound to respect the independence
None of these guidelines is determinative and all five of every other sovereign State, and the courts of one
guidelines need not be satisfied at once for a writ to country will not sit in judgment on the acts of the
issue. Bauman, 557 F.2d at 654-55 (citations omitted). government of another done within its own territory.

We will limit our review to those three guidelines, W.S. Kirkpatrick Although once viewed as an
since the remaining guidelines do not affect our expression of international law, resting on
analysis.The Banks argue applicability of only the first considerations of international comity and expediency,
three Bauman guidelines. the act of state doctrine is currently viewed as a
consequence of domestic separation of powers,
No Other Adequate Means to Obtain Desired ReliefA. reflecting the strong sense of the Judicial Branch that
its engagement in the task of passing on the validity of
foreign acts of state may hinder the conduct of foreign
affairs. Banco Nacional de Cuba v. Sabbatino, 376 Relief Sought Would Require a United States Court to
U.S. 398, 416, 84 S.Ct. 923, 934, 11 L.Ed.2d 804 (1964) Declare Invalid a Foreign Sovereign's Official Act2.
(quoting Underhill, 168 U.S. at 252, 18 S.Ct. at 84). &
Co., Inc. v. Environmental Tectonics Corp., Int'l, 493 The relief sought therefore violates the act of state
U.S. 400, 404, 110 S.Ct. 701, 704, 107 L.Ed.2d 816 doctrine, and the district court's refusal to dismiss the
(1990) (quoting Banco Nacional, 376 U.S. at 423, 84 action was clearly erroneous as a matter of law. See
S.Ct. at 937). Callejo, 764 F.2d at 1116. Both of these forms of relief
would not only require a United States court to
Id. at 405, 110 S.Ct. at 704.Under this current view, question the validity of the freeze orders, but would
an action will be barred only if: (1) there is an official also render nugatory Switzerland's attempts to
act of a foreign sovereign performed within its own render legal assistance to The Republic of the
territory; and (2) the relief sought or the defense Philippines by protecting the Estate assets. In the
interposed [in the action would require] a court in the Rosales action, the MDL plaintiffs seek relief including:
United States to declare invalid the [foreign (1) an injunction restraining the Banks from
sovereign's] official act. transferring or otherwise conveying any funds or
assets held by the Banks on behalf of the Marcos
Official Act of a Foreign Sovereign1. Estate except as ordered by the district court; and (2)
a declaration that the Chinn assignment is valid and
In 1986, when Ferdinand E. Marcos left power, the binding on the Banks.
Swiss Federal Council,7 The Federal Council,
expecting the Philippine government to seek recovery Issuance of the injunctive relief sought would therefore
of funds deposited by Marcos and his family in violate the act of state doctrine.W.S. Kirkpatrick, 493
Switzerland, issued the freeze order to ensure that the U.S. at 405, 110 S.Ct. at 704. Subjecting Estate
funds did not disappear before the Philippine assets held by the Banks to the district court's further
government had an opportunity to act.the highest orders would thus allow a United States court to
governing body in the Swiss Executive Branch, issued question and, in fact, declare invalid the official act of
an Executive Order freezing all assets of the Marcos a foreign sovereign. Any order from the district court
family that were held in Switzerland. compelling the Banks to transfer or otherwise convey
Estate assets would be in direct contravention of the
Shortly thereafter, the Philippine government formally Swiss freeze orders. It is clear that the district court
requested, pursuant to the Swiss Federal Act on Mutual plans on taking control of any Estate assets held by the
Assistance in Criminal Matters (IMAC), 8 that the Banks, even though those assets are currently frozen
Government of Switzerland freeze all assets held in pursuant to official orders of Swiss authorities. The
Switzerland that belonged to Marcos and his family injunction sought by the plaintiffs would compel the
pending the outcome of a criminal investigation and Banks to hold any assets of the Marcos Estate subject
prosecution in the Philippines.9 The Philippine to the district court's further orders.
government also requested assistance in obtaining
evidence about the amount and nature of the Marcos The assignment directs entities having authority over
assets held in Switzerland and the circumstances such bank accounts to perform all necessary acts to
under which such assets were deposited. effect the transfer of the above bank accounts
forthwith. The assignment purports to assign to
After ensuring that the Philippine government's request Robert Swift, counsel for the MDL plaintiffs, all of the
complied with IMAC, the Swiss Federal Office of Police Estate's right, title and interest in and to bank
forwarded the request for assistance to the accounts maintained in Switzerland. A declaration by
enforcement authorities of the cantons in which the a United States court that the Chinn assignment is
Marcos bank accounts were maintained-Geneva, valid and binding on the Banks would also violate the
Fribourg and Zurich-with instructions to take act of state doctrine.
provisional measures immediately. 10 The cantonal
freeze orders remain in effect today. These cantonal Such a declaration would not only contradict, and
orders, which superseded the previously issued therefore declare invalid, the Swiss freeze orders, but
Executive Order, were appealed and affirmed by would also require the Banks to disregard the Swiss
judgments of the Swiss Federal Supreme Court, the orders.A declaration that this assignment is valid and
highest court in Switzerland. Pursuant to IMAC binding on the Banks would be a declaration that the
procedures which require the cantonal authorities to Banks must transfer all Estate assets held by the Banks
execute the instructions of the Swiss federal to Swift forthwith.
government, cantonal orders were immediately issued
freezing all assets belonging directly or indirectly to See Miller v. United States, 955 F.Supp. 795, 798
Marcos and/or his family. (N.D.Ohio 1996). If the MDL plaintiffs want to contest
the legality of the Swiss freeze orders, seek a
The Executive and subsequent cantonal orders were, declaration of the validity of the Chinn assignment as
therefore, clearly an official act of a forei Callejo v. against the Banks, or seek an injunction compelling the
Bancomer, S.A., 764 F.2d 1101, 1116 (5th Cir.1985). Banks to turn over the assets, they should do so via
Switzerland's act of issuing first the Executive Order the Swiss judicial system. See Underhill, 168 U.S. at
and then the cantonal freeze orders pursuant to IMAC 252, 18 S.Ct. at 84. United States courts are bound
was paradigmatically sovereign in nature; it is not to respect the independence of every other sovereign
[the type of act] that a private person can exercise. State, including Switzerland.
W.S. Kirkpatrick, 493 U.S. at 405, 110 S.Ct. at 704.gn
sovereign performed within its own territory. III.
The clerk of this court is directed to issue a writ of 61291.28 U.S.C. Section 1291 provides in relevant
mandamus directing the district court to vacate its part: The courts of appeals shall have jurisdiction of
denial of the Banks' motion to dismiss, and to dismiss appeals from all final decisions of the district courts of
the action Rosales et al. v. Credit Suisse and Swiss the United States .
Bank Corp., No. CV 96-6419 (C.D.Cal.) (Real, J.); and
further directing the district court to refrain from taking 7The Swiss Federal Council is comprised of the
any further action in the Rosales action or any other ministers of the Swiss Departments of State, Finance,
case involving any or all of the Real Parties in Interest Defense, Justice and Police, Interior, Public Economy,
and any assets of the Estate of Ferdinand E. Marcos and Transportation and Energy..
held or claimed to be held by the Banks.
8IMAC authorizes the Government of Switzerland to
Any motions for vacation or modification of this order provide assistance in criminal matters to foreign
shall be filed with the clerk of this court.This court countries that extend reciprocal treatment to
retains jurisdiction over this case. Switzerland..

The Petition for Writ of Mandamus is GRANTED. 9 Decision of Swiss Federal Supreme Court, July 1,
1987. It was alleged, for example, that Marcos and his
FOOTNOTES family had retained portions of funds from international
aid and war reparations by Japan, directly withdrawn
1 Credit Suisse maintains a branch office in Los money from the public treasury, and established and
Angeles which is also licensed as such by the California operated state trading monopolies for their personal
Banking Department. Swiss Bank maintains a profit. The Philippine government alleged that
representative office in Los Angeles and a branch office President Marcos and members of his family had used
in San Francisco, both of which are licensed as such by their governmental powers to divert state funds to
the California Banking Department. The Banks are their personal benefit. .
both incorporated under the laws of, and
headquartered in, Switzerland. . 10Switzerland is divided into 26 cantons, each with its
own government..
2 The procedure on execution, in proceedings
supplementary to and in aid of a judgment, and in Pennhurst State Sch. v. Halderman, 465 U.S. 89
proceedings on and in aid of execution shall be in (1984)
accordance with the practice and procedure of the
state in which the district court is held, existing at the
time the remedy is soughtFed.R.Civ.P. 69(a).Rule Argued February 22, 1983 Reargued October
69(a) provides:Process to enforce a judgment for the 3, 1983 Decided January 23, 1984
payment of money shall be a writ of execution, unless
the court directs otherwise. . CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR
3 Therefore, the plaintiffs in the MDL proceeding and
the Real Parties in Interest in the Rosales action are THE THIRD CIRCUIT
identical.The Real Parties in Interest in the Rosales
action are defined as the class which obtained a
judgment against the Estate of Ferdinand E. Marcos in Syllabus
the MDL proceeding. .
Respondent Halderman, a resident of petitioner
4 This assignment was signed by Walter Chinn, Clerk of Pennhurst State School and Hospital, a Pennsylvania
the United States District Court for the District of institution for the care of the mentally retarded,
Hawaii, at the direction of the district court as a brought a class action in Federal District Court against
contempt sanction against Marcos.The Chinn Pennhurst, certain of its officials, the Pennsylvania
assignment is a document that purportedly assigns all Department of Public Welfare, and various state and
right, title and interest of the Marcos Estate in any county officials (also petitioners). It was alleged that
bank accounts maintained in Switzerland to Robert A. conditions at Pennhurst violated various federal
Swift, for the benefit of the MDL plaintiffs. . constitutional and statutory rights of the class
members as well as their rights under the Pennsylvania
5 The district court did issue an order denying the Mental Health and Mental Retardation Act of 1966
Banks' motion for certification for interlocutory appeal, (MH/MR Act). Ultimately, the District Court awarded
stating only that certification would not expedite injunctive relief based in part on the MH/MR Act, which
matters in this litigation but would instead delay the was held to provide a right to adequate habilitation.
processing of this litigation to final judgment. To The Court of Appeals affirmed, holding that the MH/MR
date, no signed order has been entered in this case Act required the State to adopt the "least restrictive
indicating the disposition of the Banks' motion to environment" approach for the care of the mentally
dismiss. Instead, the district court orally denied the retarded, and rejecting petitioners' argument that the
Banks' motion to dismiss, without specifying the Eleventh Amendment barred a federal court from
grounds on which such denial was based. The district considering this pendent state law claim. The court
court never issued an order refusing to dismiss the reasoned that, since that Amendment did not bar a
Rosales action. . federal court from granting prospective injunctive relief
against state officials on the basis of federal claims,
the same result obtained with respect to a pendent (e) While it may be that applying the Eleventh
state law claim. Amendment to pendent state law claims results in
federal claims' being brought in state court or in
Held: The Eleventh Amendment prohibited the District bifurcation of claims, such considerations of policy
Court from ordering state officials to conform their cannot override the constitutional limitation on the
conduct to state law. authority of the federal judiciary to adjudicate suits
against a State.

(a) The principle of sovereign immunity is a


constitutional limitation on the federal judicial power (f) The judgment below cannot be sustained on the
established in Art. III of the Constitution. The Eleventh basis of the state law obligation of petitioner county
Amendment bars a suit against state officials when the officials, since any relief granted against these officials
State is the real, substantial party in interest, on the basis of the MH/MR Act would be partial and
regardless of whether the suit seeks damages or incomplete, at best. Such an ineffective enforcement of
injunctive relief. The Court in Ex parte Young, state law would not appear to serve the purposes of
supra, recognized an important exception to this efficiency, convenience, and fairness that must inform
general rule: a suit challenging the federal the exercise of pendent jurisdiction.
constitutionality of a state official's action is not one
against the State. 673 F.2d 647, reversed and remanded.

(b) In Edelman v. Jordan, this Court recognized that POWELL, J., delivered the opinion of the Court, in which
the need to promote the supremacy of federal law that BURGER, C.J., and WHITE, REHNQUIST, and O'CONNOR,
is the basis of Young must be accommodated to the JJ., joined. BRENNAN, J., filed a dissenting opinion,
constitutional immunity of the States. Thus, the Court STEVENS, J., filed a dissenting opinion, in which
declined to extend the Young doctrine to encompass BRENNAN, MARSHALL, and BLACKMUN, JJ., joined.
retroactive relief, for to do so would effectively
eliminate the States' constitutional JUSTICE POWELL delivered the opinion of the Court.
immunity. Edelman's distinction between prospective
and retroactive relief fulfilled Young's underlying
purpose of vindicating the supreme authority of federal This case presents the question whether a federal
law while at the same time preserving to an important court may award injunctive relief against state officials
degree the States' constitutional immunity. But this on the basis of state law.
need to reconcile competing interests is wholly absent
when a plaintiff alleges that a state official has violated I
state law. In such a case, the entire basis for the
doctrine of Young and Edelman disappears. A federal
court's grant of relief against state officials on the basis This litigation, here for the second time, concerns the
of state law, whether prospective or retroactive, does conditions of care at petitioner Pennhurst State School
not vindicate the supreme authority of federal law. and Hospital, a Pennsylvania institution for the care of
When a federal court instructs state officials on how to the mentally retarded. See Pennhurst State School and
conform their conduct to state law, this conflicts Hospital v. Halderman, 451 U. S. 1 (1981). Although the
directly with the principles of federalism that underlie litigation's history is set forth in detail in our prior
the Eleventh Amendment. opinion, it is necessary for purposes of this decision to
review that history.

(c) The dissenters' view is that an allegation that


official conduct is contrary to a state statute would This suit originally was brought in 1974 by respondent
suffice to override the State's protection from Terri Lee Halderman, a resident of Pennhurst, in the
injunctive relief under the Eleventh Amendment District Court for the Eastern District of Pennsylvania.
because such conduct is ultra vires the official's Ultimately, plaintiffs included a class consisting of all
authority. This view rests on fiction, is wrong on the persons who were or might become residents of
law, and would emasculate the Eleventh Amendment. Pennhurst; the Pennsylvania Association for Retarded
At least insofar as injunctive relief is sought, an error of Citizens (PARC); and the United States. Defendants
law by state officers acting in their official capacity will were Pennhurst and various Pennhurst officials; the
not suffice to override the sovereign immunity of the Pennsylvania Department of Public Welfare and several
State where the relief effectively is against it. Under of its officials; and various county commissioners,
the dissenters' view, the ultra vires doctrine, a narrow county mental retardation administrators, and other
and questionable exception, would swallow the general officials of five Pennsylvania counties surrounding
rule that a suit is against the State if the relief will run Pennhurst. Respondents' amended complaint charged
against it. that conditions at Pennhurst violated the class
members' rights under the Eighth and Fourteenth
Amendments; of the Rehabilitation Act of 1973,; the
(d) The principle that a claim that state officials Developmentally Disabled Assistance and Bill of Rights
violated state law in carrying out their official Act, et seq.; and the Pennsylvania Mental Health and
responsibilities is a claim against the State that is Mental Retardation Act of 1966 (MH/MR Act), Both
protected by the Eleventh Amendment applies as well damages and injunctive relief were sought.
to state law claims brought into federal court under
pendent jurisdiction.
In 1977, following a lengthy trial, the District Court for habilitation of the patient in a designated
rendered its decision. As noted in our prior opinion, community living arrangement. The plan is subject to
the court's findings were undisputed: review by the Special Master. A second master, called
the Hearing Master, is available to conduct hearings,
"Conditions at Pennhurst are not only dangerous, with upon request by the resident, his parents, or his
the residents often physically abused or drugged by advocate, on the question whether the services of
staff members, but also inadequate for the Pennhurst would be more beneficial to the resident
'habilitation' of the retarded. Indeed, the court found than the community living arrangement provided in the
that the physical, intellectual, and emotional skills of resident's plan. The Hearing Master then determines
some residents have deteriorated at Pennhurst." where the patient should reside, subject to possible
review by the District Court.

The District Court held that these conditions violated


each resident's right to "minimally adequate This Court reversed the judgment of the Court of
habilitation" under the Due Process Clause and the Appeals, finding that 42 U.S.C. 6010 did not create
MH/MR Act, "freedom from harm" under the Eighth any substantive rights. We remanded the case to the
and Fourteenth Amendments, and "nondiscriminatory Court of Appeals to determine if the remedial order
habilitation" under the Equal Protection Clause and could be supported on the basis of state law, the
504 of the Rehabilitation Act, Furthermore, the court Constitution, or 504 of the Rehabilitation Act. We
found that "due process demands that, if a state also remanded for consideration of whether any relief
undertakes the habilitation of a retarded person, it was available under other provisions of the
must do so in the least restrictive setting consistent Developmentally Disabled Assistance and Bill of Rights
with that individual's habilitative needs." Act.

After concluding that the large size of Pennhurst On remand, the Court of Appeals affirmed its prior
prevented it from providing the necessary habilitation judgment in its entirety. It determined that, in a recent
in the least restrictive environment, the court ordered decision, the Supreme Court of Pennsylvania had
that "immediate steps be taken to remove the retarded "spoken definitively" in holding that the MH/MR Act
residents from Pennhurst." Petitioners were ordered "to required the State to adopt the "least restrictive
provide suitable community living arrangements" for environment" approach for the care of the mentally
the class members, id. at 1326, and the court retarded. The Court of Appeals concluded that this
appointed a Special Master "with the power and duty state statute fully supported its prior judgment, and
to plan, organize, direct, supervise and monitor the therefore did not reach the remaining issues of federal
implementation of this and any further Orders of the law. It also rejected petitioners' argument that the
Court." Eleventh Amendment barred a federal court from
considering this pendent state law claim. The court
noted that the Amendment did not bar a federal court
The Court of Appeals for the Third Circuit affirmed most from granting prospective injunctive relief against state
of the District Court's judgment. It agreed that officials on the basis of federal claims, and concluded
respondents had a right to habilitation in the least that the same result obtained with respect to a
restrictive environment, but it grounded this right pendent state law claim. It reasoned that,
solely on the "bill of rights" provision in the because Siler v. Louisville & Nashville R. Co., an
Developmentally Disabled Assistance and Bill of Rights important case in the development of the doctrine of
Act. The court did not consider the constitutional issues pendent jurisdiction, also involved state officials, "there
or 504 of the Rehabilitation Act, and while it affirmed cannot be . . . an Eleventh Amendment exception to
the District Court's holding that the MH/MR Act that rule." Finally, the court rejected petitioners'
provides a right to adequate habilitation, the court did argument that it should have abstained from deciding
not decide whether that state right encompassed a the state law claim under principles of comity, see
right to treatment in the least restrictive setting. id. at 659-660, and refused to consider petitioners'
objections to the District Court's use of a Special
On the question of remedy, the Court of Appeals Master, see id. at 651, and n. 10. Three judges
affirmed except as to the District Court's order that dissented in part, arguing that, under principles of
Pennhurst be closed. The court observed that some federalism and comity, the establishment of a Special
patients would be unable to adjust to life outside an Master to supervise compliance was an abuse of
institution, and it determined that none of the legal discretion. See id. at 662 (Seitz, C.J., joined by Hunter,
provisions relied on by respondents precluded J., dissenting in part); ibid. (Garth, J., concurring in part
institutionalization. . It therefore remanded for and dissenting as to relief). (Aldisert, J., concurring)
"individual determinations by the [District Court], or by (seriously questioning the propriety of the order
the Special Master, as to the appropriateness of an appointing the Special Master, but concluding that a
improved Pennhurst for each such patient," guided by retroactive reversal of that order would be
"a presumption in favor of placing individuals in meaningless).
[community living arrangements]."
We granted certiorari, and now reverse and remand.
On remand, the District Court established detailed
procedures for determining the proper residential II
placement for each patient. A team consisting of the
patient, his parents or guardian, and his case manager
must establish an individual habilitation plan providing Petitioners raise three challenges to the judgment of
the Court of Appeals: (i) the Eleventh Amendment
prohibited the District Court from ordering state required an unequivocal expression of congressional
officials to conform their conduct to state law; (ii) the intent to "overturn the constitutionally guaranteed
doctrine of comity prohibited the District Court from immunity of the several States." (holding that 42
issuing its injunctive relief; and (iii) the District Court U.S.C. 1983 does not override States' Eleventh
abused its discretion in appointing two Masters to Amendment immunity). Our reluctance to infer that a
supervise the decisions of state officials in State's immunity from suit in the federal courts has
implementing state law. We need not reach the latter been negated stems from recognition of the vital role
two issues, for we find the Eleventh Amendment of the doctrine of sovereign immunity in our federal
challenge dispositive. system. A State's constitutional interest in immunity
encompasses not merely whether it may be sued,
A but where it may be sued. As JUSTICE MARSHALL well
has noted,

Article III, 2, of the Constitution provides that the


federal judicial power extends, inter alia, to "[b]ecause of the problems of federalism inherent in
controversies "between a State and Citizens of another making one sovereign appear against its will in the
State." Relying on this language, this Court in 1793 courts of the other, a restriction upon the exercise of
assumed original jurisdiction over a suit brought by a the federal judicial power has long been considered to
citizen of South Carolina against the State of Georgia. be appropriate in a case such as this."
The decision "created such a shock of surprise that the
Eleventh Amendment was at once proposed and Employees v. Missouri Dept. of Public Health and
adopted." The Amendment provides: Welfare, (concurring in result). Accordingly, in deciding
this case we must be guided by "[t]he principles of
"The Judicial power of the United States shall not be federalism that inform Eleventh Amendment doctrine."
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United B
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State. " This Court's decisions thus establish that "an
unconsenting State is immune from suits brought in
The Amendment's language overruled the particular federal courts by her own citizens as well as by citizens
result in Chisholm, but this Court has recognized that of another state." There may be a question, however,
its greater significance lies in its affirmation that the whether a particular suit in fact is a suit against a
fundamental principle of sovereign immunity limits the State. It is clear, of course, that, in the absence of
grant of judicial authority in Art. III. Thus, in Hans v. consent, a suit in which the State or one of its agencies
Louisiana, the Court held that, despite the limited or departments is named as the defendant is
terms of the Eleventh Amendment, a federal court proscribed by the Eleventh Amendment. This
could not entertain a suit brought by a citizen against jurisdictional bar applies regardless of the nature of the
his own State. After reviewing the constitutional relief sought ("Expressly applying to suits in equity as
debates concerning the scope of Art. III, the Court well as at law, the Amendment necessarily embraces
determined that federal jurisdiction over suits against demands for the enforcement of equitable rights and
unconsenting States "was not contemplated by the the prosecution of equitable remedies when these are
Constitution when establishing the judicial power of the asserted and prosecuted by an individual against a
United States." In short, the principle of sovereign State").
immunity is a constitutional limitation on the federal
judicial power established in Art. III: When the suit is brought only against state officials, a
question arises as to whether that suit is a suit against
"That a State may not be sued without its consent is a the State itself. Although prior decisions of this Court
fundamental rule of jurisprudence having so important have not been entirely consistent on this issue, certain
a bearing upon the construction of the Constitution of principles are well established. The Eleventh
the United States that it has become established by Amendment bars a suit against state officials when
repeated decisions of this court that the entire judicial "the state is the real, substantial party in interest."
power granted by the Constitution does not embrace Thus, "[t]he general rule is that relief sought nominally
authority to entertain a suit brought by private parties against an officer is in fact against the sovereign if the
against a State without consent given: not one brought decree would operate against the latter."
by citizens of another State, or by citizens or subjects
of a foreign State, because of the Eleventh And, as when the State itself is named as the
Amendment; and not even one brought by its own defendant, a suit against state officials that is in fact a
citizens, because of the fundamental rule of which the suit against a State is barred regardless of whether it
Amendment is but an exemplification." seeks damages or injunctive relief.

A sovereign's immunity may be waived, and the Court The Court has recognized an important exception to
consistently has held that a State may consent to suit this general rule: a suit challenging the
against it in federal court. We have insisted, however, constitutionality of a state official's action is not one
that the State's consent be unequivocally expressed. against the State. This was the holding in Ex parte
Similarly, although Congress has power with respect to Young, in which a federal court enjoined the Attorney
the rights protected by the Fourteenth Amendment to General of the State of Minnesota from bringing suit to
abrogate the Eleventh Amendment immunity, we have enforce a state statute that allegedly violated the
Fourteenth Amendment. This Court held that the unconstitutional conduct constitutes state action under
Eleventh Amendment did not prohibit issuance of this the Fourteenth Amendment, but not the Eleventh
injunction. The theory of the case was that an Amendment. Nonetheless, the Young doctrine has
unconstitutional enactment is "void," and therefore been accepted as necessary to permit the federal
does not "impart to [the officer] any immunity from courts to vindicate federal rights and hold state
responsibility to the supreme authority of the United officials responsible to "the supreme authority of the
States." Since the State could not authorize the action, United States.". As JUSTICE BRENNAN has observed,
the officer was "stripped of his official or representative
character and [was] subjected in his person to the "Ex parte Young was the culmination of efforts by this
consequences of his individual conduct." Court to harmonize the principles of the Eleventh
Amendment with the effective supremacy of rights and
While the rule permitting suits alleging conduct powers secured elsewhere in the Constitution."
contrary to "the supreme authority of the United
States" has survived, the theory of Young has not been Our decisions repeatedly have emphasized that
provided an expansive interpretation. Thus, in Edelman the Young doctrine rests on the need to promote the
v. Jordan, the Court emphasized that the Eleventh vindication of federal rights.
Amendment bars some forms of injunctive relief
against state officials for violation of federal law. In
particular, Edelman held that, when a plaintiff sues a The Court also has recognized, however, that the need
state official alleging a violation of federal law, the to promote the supremacy of federal law must be
federal court may award an injunction that governs the accommodated to the constitutional immunity of the
official's future conduct, but not one that awards States. This is the significance of Edelman v. Jordan,
retroactive monetary relief. Under the theory supra. We recognized that the prospective relief
of Young, such a suit would not be one against the authorized by Young "has permitted the Civil War
State, since the federal law allegation would strip the Amendments to the Constitution to serve as a sword,
state officer of his official authority. Nevertheless, rather than merely a shield, for those whom they were
retroactive relief was barred by the Eleventh designed to protect."
Amendment.
But we declined to extend the fiction of Young to
III encompass retroactive relief, for to do so would
effectively eliminate the constitutional immunity of the
States. Accordingly, we concluded that, although the
With these principles in mind, we now turn to the difference between permissible and impermissible
question whether the claim that petitioners violated relief "will not in many instances be that between day
state law in carrying out their official duties at and night," an award of retroactive relief necessarily
Pennhurst is one against the State, and therefore
barred by the Eleventh Amendment. Respondents
advance two principal arguments in support of the "'fall[s] afoul of the Eleventh Amendment if that basic
judgment below. First, they contend that, under the constitutional provision is to be conceived of as having
doctrine of Edelman v. Jordan, supra, the suit is not any present force.'", In sum, Edelman's distinction
against the State because the courts below ordered between prospective and retroactive relief fulfills the
only prospective injunctive relief. Second, they assert underlying purpose of Ex parte Young, while at the
that the state law claim properly was decided under same time preserving to an important degree the
the doctrine of pendent jurisdiction. Respondents rely constitutional immunity of the States.
on decisions of this Court awarding relief against state
officials on the basis of a pendent state law claim. This need to reconcile competing interests is wholly
absent, however, when a plaintiff alleges that a state
We first address the contention that respondents' state official has violated state law. In such a case, the entire
law claim is not barred by the Eleventh Amendment basis for the doctrine
because it seeks only prospective relief as defined of Young and Edelman disappears. A federal court's
in Edelman v. Jordan, supra. The Court of Appeals held grant of relief against state officials on the basis of
that, if the judgment below rested on federal law, it state law, whether prospective or retroactive, does not
could be entered against petitioner state officials under vindicate the supreme authority of federal law. On the
the doctrine established in Edelman and Young even contrary, it is difficult to think of a greater intrusion on
though the prospective financial burden was state sovereignty than when a federal court instructs
substantial and ongoing. The court assumed, and state officials on how to conform their conduct to state
respondents assert, that this reasoning applies as well law. Such a result conflicts directly with the principles
when the official acts in violation of state law. This of federalism that underlie the Eleventh Amendment.
argument misconstrues the basis of the doctrine We conclude that Young and Edelman are inapplicable
established in Young and Edelman. in a suit against state officials on the basis of state law.

As discussed above, the injunction in Young was B


justified, notwithstanding the obvious impact on the
State itself, on the view that sovereign immunity does The contrary view of JUSTICE STEVENS' dissent rests on
not apply because an official who acts fiction, is wrong on the law, and, most important,
unconstitutionally is "stripped of his official or would emasculate the Eleventh Amendment. Under his
representative character," Young, rationale, of course, view, an allegation that official conduct is contrary to a
created the "well-recognized irony" that an official's
state statute would suffice to override the State's command purely discretionary duties. Since it cannot
protection under that Amendment. The theory is that be doubted that the statutes at issue here gave
such conduct is contrary to the official's "instructions," petitioners broad discretion in operating Pennhurst, the
and thus ultra vires his authority. conduct alleged in this case would not be ultra
vires even under the standards of the dissent's cases.
Accordingly, official action based on a reasonable
interpretation of any statute might, if the interpretation Thus, while there is language in the early cases that
turned out to be erroneous, provide the basis for advances the authority-stripping theory advocated by
injunctive relief against the actors in their official the dissent, this theory had never been pressed as far
capacities. In this case, where officials of a major state as JUSTICE STEVENS would do in this case. And when
department, clearly acting within the scope of their the expansive approach of the dissent was advanced,
authority, were found not to have improved conditions this Court plainly and explicitly rejected it. In Larson v.
in a state institution adequately under state law, the Domestic & Foreign Commerce Corp., Court was faced
dissent's result would be that the State itself has with the argument that an allegation that a
forfeited its constitutionally provided immunity. Government official committed a tort sufficed to
distinguish the official from the sovereign. Therefore,
The theory is out of touch with reality. The dissent does the argument went, a suit for an injunction to remedy
not dispute that the general criterion for determining the injury would not be against the sovereign. The
when a suit is in fact against the sovereign is Court rejected the argument, noting that it would make
the effect of the relief sought. According to the dissent, the doctrine of sovereign immunity superfluous. A
the relief sought and ordered here -- which in effect plaintiff would need only to "claim an invasion of his
was that a major state institution be closed and smaller legal rights" in order to override sovereign immunity.
state institutions be created and expansively funded -- In the Court's view, the argument "confuse[d] the
did not operate against the State. This view would doctrine of sovereign immunity with the requirement
make the law a pretense. No other court or judge in the that a plaintiff state a cause of action." The dissent's
10-year history of this litigation has advanced this theory suffers a like confusion. Under the dissent's
theory. And the dissent's underlying view that the view, a plaintiff would need only to claim a denial of
named defendants here were acting beyond and rights protected or provided by statute in order to
contrary to their authority cannot be reconciled with override sovereign immunity. Except in rare cases, it
reality -- or with the record. The District Court in this would make the constitutional doctrine of sovereign
case held that the individual defendants "acted in the immunity a nullity.
utmost good faith . . . within the sphere of their official
responsibilities," and therefore were entitled to The crucial element of the dissent's theory was also
immunity from damages. 446 F.Supp. at 1324 the plaintiff's central contention in Larson. It is that "[a]
(emphasis added). The named defendants had nothing sovereign, like any other principal, cannot authorize its
to gain personally from their conduct; they were not agent to violate the law," so that, when the agent does
found to have acted willfully or even negligently. See so ,he cannot be acting for the sovereign. ("It is argued
ibid. The court expressly noted that the individual . . . that the commission of a tort cannot be authorized
defendants by the sovereign. . . . It is on this contention that the
respondent's position fundamentally rests . . ."). It is a
"apparently took every means available to them to view of agency law that the Court in Larson explicitly
reduce the incidents of abuse and injury, but were rejected. Larson thus made clear that, at least insofar
constantly faced with staff shortages." as injunctive relief is sought, an error of law by state
officers acting in their official capacities will not suffice
to override the sovereign immunity of the State where
It also found "that the individual defendants are the relief effectively is against it.] Any resulting
dedicated professionals in the field of retardation who disadvantage to the plaintiff was "outweigh[ed]" by
were given very little with which to accomplish the "the necessity of permitting the Government to carry
habilitation of the retarded at Pennhurst." out its functions unhampered by direct judicial
intervention." If anything, this public need is even
As a result, all the relief ordered by the courts below greater when questions of federalism are involved.
was institutional and official in character. To the extent
there was a violation of state law in this case, it is a The dissent in Larson made many of the arguments
case of the State itself not fulfilling its legislative advanced by JUSTICE STEVENS dissent today, and
promises. asserted that many of the same cases were being
overruled or ignored.
The dissent bases its view on numerous cases from the
turn of the century and earlier. These cases do not (Frankfurter, J., dissenting). Those arguments were
provide the support the dissent claims to find. Many rejected, and the cases supporting them are moribund.
are simply miscited. For example, with perhaps one Since Larson was decided in 1949, no opinion by any
exception, none of its Eleventh Amendment cases can Member of this Court has cited the cases on which the
be said to hold that injunctive relief could be ordered dissent primarily relies for a proposition as broad as
against state officials for failing to carry out their duties the language the dissent quotes. Many, if not most, of
under state statutes. And the federal sovereign these cases have not been relied upon in an Eleventh
immunity cases the dissent relies on for analogy, while Amendment context at all. Those that have been so
far from uniform, make clear that suit may not be cited have been relied upon only for propositions with
predicated on violations of state statutes that which no one today quarrels. The plain fact is that the
dissent's broad theory, if it ever was accepted to the (Brandeis, J., concurring) ("[I]f a case can be decided
full extent to which it is now pressed, has not been the on either of two grounds, one involving a constitutional
law for at least a generation. question, the other a question of statutory construction
or general law, the Court will decide only the latter").
The reason is obvious. Under the dissent's view of But pendent jurisdiction is a judge-made doctrine
the ultra vires doctrine, the Eleventh Amendment inferred from the general language of Art. III. The
would have force only in the rare case in which a question presented is whether this doctrine may be
plaintiff foolishly attempts to sue the State in its own viewed as displacing the explicit limitation on federal
name, or where he cannot produce some state statute jurisdiction contained in the Eleventh Amendment.
that has been violated to his asserted injury. Thus,
the ultra vires doctrine, a narrow and questionable As the Court of Appeals noted, in Siler and subsequent
exception, would swallow the general rule that a suit is cases concerning pendent jurisdiction, relief was
against the State if the relief will run against it. That granted against state officials on the basis of state law
result gives the dissent no pause, presumably because claims that were pendent to federal constitutional
of its view that the Eleventh Amendment and claims. In none of these cases, however, did the Court
sovereign immunity "undoubtedly ru[n] counter to so much as mention the Eleventh Amendment in
modern democratic notions of the moral responsibility connection with the state law claim. Rather, the Court
of the State.'" ("Efforts to force, through suits against appears to have assumed that, once jurisdiction was
officials, performance of promises by a state collide established over the federal law claim, the doctrine of
directly with the necessity that a sovereign must be pendent jurisdiction would establish power to hear the
free from judicial compulsion in the carrying out of its state law claims as well. The Court has not addressed
policies within the limits of the Constitution"); ("The whether that doctrine has a different scope when
Government, as representative of the community as a applied to suits against the State. This is illustrated
whole, cannot be stopped in its tracks . . ."). Moreover, by Greene v. Louisville & Interurban R. Co., in which
the argument substantially misses the point with the plaintiff railroads sued state officials, alleging that
respect to Eleventh Amendment sovereign immunity. certain tax assessments were excessive under the
As JUSTICE MARSHALL has observed, the Eleventh Fourteenth Amendment. The Court first rejected the
Amendment's restriction on the federal judicial power officials' argument that the Eleventh Amendment
is based in large part on "the problems of federalism barred the federal constitutional claim. It held that Ex
inherent in making one sovereign appear against its parte Young applied to all allegations challenging the
will in the courts of the other." dissent totally rejects constitutionality of official action, regardless of whether
the Eleventh Amendment's basis in federalism. the state statute under which the officials purported to
act was constitutional or unconstitutional. Having
C determined that the Eleventh Amendment did not
deprive the federal court of jurisdiction over the
Fourteenth Amendment question, the Court declared
The reasoning of our recent decisions on sovereign that the court's jurisdiction extended
immunity thus leads to the conclusion that a federal
suit against state officials on the basis of state law
contravenes the Eleventh Amendment when -- as here "to the determination of all questions involved in the
-- the relief sought and ordered has an impact directly case, including questions of state law, irrespective of
on the State itself. In reaching a contrary conclusion, the disposition that may be made of the federal
the Court of Appeals relied principally on a separate question, or whether it be found necessary to decide it
line of cases dealing with pendent jurisdiction. The at all."
crucial point for the Court of Appeals was that this
Court has granted relief against state officials on the The case then was decided solely on state law
basis of a pendent state law claim. See 673 F.2d at grounds.
657-658. We therefore must consider the relationship
between pendent jurisdiction and the Eleventh These cases thus did not directly confront the question
Amendment. before us.

This Court long has held generally that, when a federal "[W]hen questions of jurisdiction have been passed on
court obtains jurisdiction over a federal claim, it may in prior decisions sub silentio, this Court has never
adjudicate other related claims over which the court considered itself bound when a subsequent case finally
otherwise would not have jurisdiction. The Court also brings the jurisdictional issue before us."
has held that a federal court may resolve a case solely
on the basis of a pendent state law claim, and that, in
fact, the court usually should do so in order to avoid We therefore view the question as an open one.
federal constitutional questions,
As noted, the implicit view of these cases seems to
have been that, once jurisdiction is established on the
basis of a federal question, no further Eleventh
Amendment inquiry is necessary with respect to other
claims raised in the case. This is an erroneous view,
and contrary to the principles established in our
Eleventh Amendment decisions. "The Eleventh
Amendment is an explicit limitation of the judicial
power of the United States." It deprives a federal court
of power to decide certain claims against States that litigants to split causes of action between state and
otherwise would be within the scope of Art. III's grant federal courts. They also contend that the policy of
of jurisdiction. For example, if a lawsuit against state avoiding unnecessary constitutional decisions will be
officials under 42 U.S.C. 1983 alleges a constitutional contravened if plaintiffs choose to forgo their state law
claim, the federal court is barred from awarding claims and sue only in federal court or, alternatively,
damages against the state treasury even though the that the policy of Ex parte Young will be hindered if
claim arises under the Constitution. Similarly, if a plaintiffs choose to forgo their right to a federal forum
1983 action alleging a constitutional claim is brought and bring all of their claims in state court.
directly against a State, the Eleventh Amendment bars
a federal court from granting any relief on that claim. It may be that applying the Eleventh Amendment to
The Amendment thus is a specific constitutional bar pendent claims results in federal claims being brought
against hearing even federal claims that otherwise in state court, or in bifurcation of claims. That is not
would be within the jurisdiction of the federal courts. uncommon in this area. Under Edelman v. Jordan,
This constitutional bar applies to pendent claims as supra, a suit against state officials for retroactive
well. As noted above, pendent jurisdiction is a judge- monetary relief, whether based on federal or state law,
made doctrine of expediency and efficiency derived must be brought in state court. Challenges to the
from the general Art. III language conferring power to validity of state tax systems under 42 U.S.C. 1983
hear all "cases" arising under federal law or between also must be brought in state court. Under the
diverse parties. (terming pendent jurisdiction "a abstention doctrine, unclear issues of state law
doctrine of discretion"). The Eleventh Amendment commonly are split off and referred to the state courts.
should not be construed to apply with less force to this
implied form of jurisdiction than it does to the explicitly
granted power to hear federal claims. The history of In any case, the answer to respondents' assertions is
the adoption and development of the that such considerations of policy cannot override the
Amendment, confirms that it is an independent constitutional limitation on the authority of the federal
limitation on all exercises of Art. III power: judiciary to adjudicate suits against a State.
("Considerations of convenience open no avenue of
escape from the [Amendment's] restriction"). That a
"the entire judicial power granted by the Constitution litigant's choice of forum is reduced "has long been
does not embrace authority to entertain a suit brought understood to be a part of the tension inherent in our
by private parties against a State without consent system of federalism." (MARSHALL, J., concurring in
given," result).

Ex parte State of New York, 256. If we were to hold IV


otherwise, a federal court could award damages
against a State on the basis of a pendent claim. Our
decision in Edelman v. Jordan makes clear that pendent Respondents contend that, regardless of the
jurisdiction does not permit such an evasion of the applicability of the Eleventh Amendment to their state
immunity guaranteed by the Eleventh Amendment. We claims against petitioner state officials, the judgment
there held that "the District Court was correct in may still be upheld against petitioner county officials.
exercising pendent jurisdiction over [plaintiffs'] We are not persuaded. Even assuming that these
statutory claim," but then concluded that the Eleventh officials are not immune from suit challenging their
Amendment barred an award of retroactive relief on actions under the MH/MR Act, it is clear that, without
the basis of that pendent claim. the injunction against the state institutions and officials
in this case, an order entered on state law grounds
necessarily would be limited. The relief substantially
In sum, contrary to the view implicit in decisions such concerns Pennhurst, an arm of the State that is
as Greene v. Louisville & Interurban R. Co., neither operated by state officials. Moreover, funding for the
pendent jurisdiction nor any other basis of jurisdiction county mental retardation programs comes almost
may override the Eleventh Amendment. A federal court entirely from the State, and the costs of the Masters
must examine each claim in a case to see if the court's have been borne by the State, Finally, the MH/MR Act
jurisdiction over that claim is barred by the Eleventh contemplates that the state and county officials will
Amendment. We concluded above that a claim that cooperate in operating mental retardation programs. In
state officials violated state law in carrying out their short, the present judgment could not be sustained on
official responsibilities is a claim against the State that the basis of the state law obligations of petitioner
is protected by the Eleventh Amendment. See county officials. Indeed, any relief granted against the
supra at We now hold that this principle applies as well county officials on the basis of the state statute would
to state law claims brought into federal court under be partial and incomplete at best. Such an ineffective
pendent jurisdiction. enforcement of state law would not appear to serve
the purposes of efficiency, convenience, and fairness
D that must inform the exercise of pendent jurisdiction.

Respondents urge that application of the Eleventh V


Amendment to pendent state law claims will have a
disruptive effect on litigation against state officials. The Court of Appeals upheld the judgment of the
They argue that the "considerations of judicial District Court solely on the basis of Pennsylvania's
economy, convenience, and fairness to litigants" that MH/MR Act. We hold that these federal courts lacked
underlie pendent jurisdiction, see Gibbs, supra, at 383 jurisdiction to enjoin petitioner state institutions and
U. S. 726, counsel against a result that may cause
state officials on the basis of this state law. The District This case has illuminated the character of an
Court also rested its decision on the Eighth and institution. The record demonstrates that the
Fourteenth Amendments and 504 of the Pennhurst State School and Hospital has been
Rehabilitation Act of 1973. On remand, the Court of operated in violation of state law. In 1977, after three
Appeals may consider to what extent, if any, the years of litigation, the District Court entered detailed
judgment may be sustained on these bases. The court findings of fact that abundantly support that
also may consider whether relief may be granted to conclusion. In 1981, after four more years of litigation,
respondents under the Developmentally Disabled this Court ordered the United States Court of Appeals
Assistance and Bill of Rights Act. The judgment of the for the Third Circuit to decide whether the law of
Court of Appeals is reversed, and the case is remanded Pennsylvania provides an independent and adequate
for further proceedings consistent with this opinion. ground which can support the District Court's remedial
order. The Court of Appeals, sitting en banc,
It is so ordered. unanimously concluded that it did. This Court does not
disagree with that conclusion. Rather, it reverses the
Court of Appeals because it did precisely what this
Court ordered it to do; the only error committed by the
Court of Appeals was its faithful obedience to this
JUSTICE BRENNAN, dissenting. Court's command.

I fully agree with JUSTICE STEVENS' dissent. This remarkable result is the product of an equally
Nevertheless, I write separately to explain that, in view remarkable misapplication of the ancient doctrine of
of my continued belief that the Eleventh Amendment sovereign immunity. In a completely unprecedented
"bars federal court suits against States only by citizens holding, today the Court concludes that Pennsylvania's
of other States," Yeomans v. Kentucky, 423 U.S. 983, sovereign immunity prevents a federal court from
984 (1975) (BRENNAN, J., dissenting), I would hold that enjoining the conduct that Pennsylvania itself has
petitioners are not entitled to invoke the protections of prohibited. No rational view of the sovereign immunity
that Amendment in this federal court suit by citizens of of the States supports this result. To the contrary, the
Pennsylvania. question whether a federal court may award injunctive
relief on the basis of state law has been answered
affirmatively by this Court many times in the past. Yet
(BRENNAN, J., dissenting); In my view, Hans v. the Court repudiates at least 28 cases, spanning well
Louisiana, upon which the Court today relies, over a century of this Court's jurisprudence,
recognized that the Eleventh Amendment, by its terms, proclaiming instead that federal courts have no power
erects a limited constitutional barrier prohibiting suits to enforce the will of the States by enjoining conduct
against States by citizens of another State; the because it violates state law. This new pronouncement
decision, however, "accords to nonconsenting States will require the federal courts to decide federal
only a nonconstitutional immunity from suit by its own constitutional questions despite the availability of state
citizens." Employees v. Missouri Dept. of Public Health law grounds for decision, a result inimical to sound
and Welfare. For scholarly discussions supporting this principles of judicial restraint. Nothing in the Eleventh
view. The Eleventh Amendment and Other Sovereign Amendment, the conception of state sovereignty it
Immunity Doctrines: Part One. To the extent that such embodies, or the history of this institution requires or
nonconstitutional sovereign immunity may apply to justifies such a perverse result.
petitioners, I agree with JUSTICE STEVENS that, since
petitioners' conduct was prohibited by state law, the
protections of sovereign immunity do not extend to I
them.
The conduct of petitioners that the Court attributes to
JUSTICE STEVENS, with whom JUSTICE BRENNAN, the State of Pennsylvania in order to find it protected
JUSTICE MARSHALL, and JUSTICE BLACKMUN join, by the Eleventh Amendment is described in detail in
dissenting. the District Court's findings. As noted in our prior
opinion, Pennhurst State School and Hospital v.
Halderman, and by the majority today, those findings
were undisputed:

"Conditions at Pennhurst are not only dangerous, with


the residents often physically abused or drugged by
staff members, but also inadequate for the
'habilitation' of the retarded. Indeed, the court found
that the physical, intellectual, and emotional skills of
some residents have deteriorated at Pennhurst."

The court concluded that Pennhurst was actually


hazardous to its residents. Organized programs of
training or education were inadequate or entirely
unavailable, and programs of treatment or training
were not developed for residents. When they visited
Pennhurst, shocked parents of residents would find
their children bruised, drugged, and unattended. These
conditions often led to a deterioration in the condition District Court, and that it was not necessary to address
of the residents after being placed in Pennhurst. Terri the federal questions decided by that court. That
Lee Halderman, for example, was learning to talk when action conformed precisely to the directive issued by
she entered Pennhurst; after residing there, she lost this Court when the case was here before. Petitioners
her verbal skills. At every stage of this litigation, urge this Court to make an unprecedented about-face,
petitioners have conceded that Pennhurst fails to and to hold that the Eleventh Amendment prohibited
provide even minimally adequate habilitation for its the Court of Appeals from doing what this Court
residents. ordered it to do when we instructed it to decide
whether respondents were entitled to relief under state
The District Court held that these conditions violated law. Of course, if petitioners are correct, then error was
each resident's rights under the Due Process and Equal committed not by the Court of Appeals, which after all
Protection Clauses of the Fourteenth Amendment, merely obeyed the instruction of this Court, but rather
504 of the Rehabilitation Act of 1973, 87 Stat. 394, 29 by this Court in 1981, when we ordered the Court of
U.S.C. 794, and the Pennsylvania Mental Health and Appeals to consider the state law issues in the case.
Mental Retardation Act of 1966, Pa.Stat.Ann., Tit. 50,
4101-4704 (Purdon 1969 and Supp.1983-1984) (MH/MR Petitioners' position is utterly without support. The
Act). The en banc Court of Appeals for the Third Circuit Eleventh Amendment and the doctrine of sovereign
affirmed most of the District Court's judgment, but it immunity it embodies have never been interpreted to
grounded its decision solely on the "bill of rights" deprive a court of jurisdiction to grant relief against
provision in the Developmentally Disabled Assistance government officials who are engaged in conduct that
and Bill of Rights Act, 42 U.S.C. 6010. The court did is forbidden by their sovereign. On the contrary, this
not consider the constitutional issues or 504 of the Court has repeatedly and consistently exercised the
Rehabilitation Act. While it affirmed the District Court's power to enjoin state officials from violating state law.
holding that the MH/MR Act provides a right to
adequate habilitation, the court did not decide whether II
that state right justified all of the relief granted by the
District Court.
The majority proceeds as if this Court has not had
previous occasion to consider the Eleventh
Petitioners sought review by this Court, asserting that Amendment argument made by petitioners, and
the Court of Appeals had erred in its construction of contends that Ex parte Young, has no application to a
both federal and state statutes. This Court granted suit seeking injunctive relief on the basis of state law.
certiorari and reversed, holding that created no That is simply not the case. The Court rejected the
substantive rights. We did not accept respondents' argument that the Eleventh Amendment precludes
state law contention, because there was a possibility injunctive relief on the basis of state law twice only two
that the Court of Appeals' analysis of the state statute Terms ago. In Florida Dept. of State v. Treasure Salvors,
had been influenced by its erroneous reading of federal Inc., four Justices concluded that a suit for possession
law. Concluding that it was "unclear whether state law of property in the hands of state officials was not
provides an independent and adequate ground which barred by the Eleventh Amendment inasmuch as the
can support the court's remedial order," we State did not have even a colorable claim to the
"remand[ed] the state law issue for reconsideration in property under state law.
light of our decision here." In a footnote, we declined to
consider the effect of the Pennsylvania Supreme
Court's then recent decision, In re Schmidt, on the (opinion of STEVENS, J., joined by BURGER, C.J., and
state law issues in the case, expressly stating that on MARSHALL and BLACKMUN, JJ.). Four additional Justices
remand the Court of Appeals could "consider the state accepted the proposition that, if the state officers'
law issues in light of the Pennsylvania Supreme Court's conduct had been in violation of a state statute, the
recent decision." Eleventh Amendment would not bar the action.
(WHITE, J., concurring in judgment in part and
dissenting in part, joined by POWELL, REHNQUIST, and
On remand, the Court of Appeals, noting that this Court O'CONNOR, JJ.). And in just one short paragraph in Cory
had remanded for reconsideration of the state law v. White, the Court thrice restated the settled rule that
issue, examined the impact of Schmidt. According to the Eleventh Amendment does not bar suits against
the Court of Appeals, which was unanimous on this state officers when they are "alleged to be acting
point, the State Supreme Court had "spoken against federal or state law." These are only the two
definitively" on the duties of the State under the most recent in an extraordinarily long line of cases.
MH/MR Act, holding that the State was required to
provide care to the mentally retarded in the "least
restrictive environment." Since the MH/MR Act fully By 1908, it was firmly established that conduct of state
justified the relief issued in the Court of Appeals' prior officials under color of office that is tortious as a matter
judgment, the court reinstated its prior judgment on of state law is not protected by the Eleventh
the basis of petitioners' violation of state law. Amendment.

Thus, the District Court found that petitioners have The Court explained the relationship of these cases to
been operating the Pennhurst facility in a way that is the doctrine of sovereign immunity.
forbidden by state law, by federal statute, and by the
Federal Constitution. The en banc Court of Appeals for "[I]mmunity from suit is a high attribute of sovereignty
the Third Circuit unanimously concluded that state law -- a prerogative of the State itself -- which cannot be
provided a clear and adequate basis for upholding the availed of by public agents when sued for their own
torts. The Eleventh Amendment was not intended to to the rights and property of the plaintiff, or make such
afford them freedom from liability in any case where, administration of the statute an illegal burden and
under color of their office, they have injured one of the exaction upon the plaintiff."
State's citizens. To grant them such immunity would be
to create a privileged class free from liability for Ibid. This Court agreed. It noted that the complaint
wrongs inflicted or injuries threatened. . . ." alleged action "in dereliction of duties enjoined by the
statutes of the State," and concluded that it was
". . . Besides, neither a State nor an individual can "manifest from this summary of the allegations of the
confer upon an agent authority to commit a tort so as bill that this is not a suit against the State." Id. at 209
to excuse the perpetrator. In such cases, the law of U. S. 490. [Footnote 2/11]
agency has no application -- the wrongdoer is treated
as a principal and individually liable for the damages Finally, in Greene v. Louisville & Interurban R. Co., 244
inflicted and subject to injunction against the U. S. 499 (1917), and its companion cases, Louisville &
commission of acts causing irreparable injury." Nashville R. Co. v. Greene, 244 U. S. 522 (1917); Illinois
Central R. Co. v. Greene, 244 U. S. 555 (1917), the
The principles that were decisive in these cases are not plaintiffs challenged the conduct of state officials under
confined to actions under state tort law. They also both federal and state law. The Court, citing, inter alia,
apply to claims that state officers have violated state Young and Clemson, held that the Eleventh
statutes. In Johnson v. Lankford, the Court reversed Amendment did not bar injunctive relief on the basis of
the dismissal of an action against the bank state law, noting that the plaintiffs' federal claim was
commissioner of Oklahoma and his surety to recover sufficiently substantial to justify the exercise of
damages for the loss of plaintiff's bank deposit, pendent jurisdiction over plaintiffs' state law claims,
allegedly caused by the commissioner's failure to and that, since violations of federal and state law had
safeguard the business and assets of the bank in been alleged, it was appropriate for the federal court to
negligent or willful disregard of his duties under issue injunctive relief on the basis of state law without
applicable state statutes. The Court explained that the reaching the federal claims, despite the strictures of
action was not one against the State. the Eleventh Amendment. In short, the Greene Court
approved of precisely the methodology employed by
"To answer it otherwise would be to assert, we think, the Court of Appeals in this case.
that whatever an officer does, even in contravention of
the laws of the State, is state action, identifies him with None of these cases contains only "implicit" or sub
it and makes the redress sought against him a claim silentio holdings; all of them explicitly consider and
against the State, and therefore prohibited by the reject the claim that the Eleventh Amendment
Eleventh Amendment. Surely an officer of a State may prohibits federal courts from issuing injunctive relief
be delinquent without involving the State in based on state law. There is therefore no basis for the
delinquency, indeed, may injure the State by majority's assertion that the issue presented by this
delinquency as well as some resident of the State, and case is an open one.
be amenable to both."
The Court tries to explain away these cases by arguing
Similarly, in Rolston v. Missouri Fund Commissioners, that the applicable state statutes gave petitioners such
the Court rejected the argument that a suit to enjoin a "broad discretion" over Pennhurst that their actions
state officer to comply with state law violated the were not ultra vires. The Court, however, does not
Eleventh Amendment. The Court wrote: "Here the suit dispute the Court of Appeals' conclusion that these
is to get a state officer to do what a statute requires of state statutes gave petitioners no discretion
him. The litigation is with the officer, not the state." whatsoever to disregard their duties with respect to
institutionalization of the retarded as they did.
Significantly, this rule was expressly reaffirmed in a Petitioners acted outside of their lawful discretion
case decided by this Court in the same Term as Ex every bit as much as did the government officials in
parte Young and published in the same volume of the the cases I have discussed, which hold that, when an
United States Reports. official commits an act prohibited by law, he acts
beyond his authority and is not protected by sovereign
immunity. After all, it is only common sense to
The appellants in Scully v. Bird, ] brought a diversity conclude that States do not authorize their officers to
suit seeking injunctive relief against the dairy and food violate their legal duties.
commissioner of the State of Michigan, on the ground
that, "under cover of his office," he had maliciously
engaged in a course of conduct designed to ruin The Court also relies heavily on the fact that the
plaintiffs' business in the State. The Circuit Court District Court found petitioners immune from damages
dismissed the complaint on Eleventh Amendment liability because they "acted in the utmost good
grounds. On appeal, the plaintiffs contended that the faith . . . within the sphere of their official
Eleventh Amendment responsibilities,'" (emphasis in original) (quoting 446
F.Supp. at 1324). This confuses two distinct concepts.
An official can act in good faith, and therefore be
"does not apply where a suit is brought against immune from damages liability, despite the fact that
defendants who, claiming to act as officers of the he has done that which the law prohibits, a point
State, and under color of a statute which is valid and recognized as recently as Harlow v. Fitzgerald.
constitutional, but wrongfully administered by them, Nevertheless, good faith immunity from damages
commit, or threaten to commit, acts of wrong or injury liability is irrelevant to the availability of injunctive
relief. The state officials acted in nothing less than be sued. However, common law courts, in applying the
good faith and within the sphere of their official doctrine, traditionally distinguished between the King
responsibilities in asserting Florida's claim to the and his agents, on the theory that the King would
treasure in Treasure Salvors; the same can be said for never authorize unlawful conduct, and that therefore
the bank commissioner's actions in safeguarding bank the unlawful acts of the King's officers ought not to be
deposits challenged in Johnson v. Lankford, the fund treated as acts of the sovereign. See 1 W. Blackstone,
commissioner's decision to sell property mortgaged to Commentaries *244. As early as the 15th century,
the State challenged in Rolston, and the state food and Holdsworth writes, servants of the King were held liable
dairy commissioner's decision to prosecute the for their unlawful acts. See 3 W. Holdsworth, A History
appellant for violating the state food impurity Act of English Law 388 (1903). During the 17th century,
challenged in Scully, to give just a few examples. Yet in this rule of law was used extensively to curb the King's
each of these cases, the state officers' conduct was authority. The King's officers "could do wrong, and if
enjoined. Greene makes this point perfectly clear. they committed wrongs, whether in the course of their
There state officers did nothing more than carry out employment or not, they could be made legally liable.
responsibilities clearly assigned to them by a statute. The command or instruction of the king could not
Their conduct was nevertheless enjoined because this protect them. If the king really had given such
Court held that their conduct violated the State commands or instructions, he must have been
Constitution, despite the fact that their reliance on a deceived."
statute made it perfectly clear that their conduct was
not only in good faith, but reasonable. Until today, the In one famous case, it was held that, although process
rule has been simple: conduct that exceeds the scope would not issue against the sovereign himself, it could
of an official's lawful discretion is not conduct the issue against his officers. "[F]or the warrant of no man,
sovereign has authorized, and hence is subject to not even of the King himself, can excuse the doing of
injunction. [Footnote 2/16] Whether that conduct also an illegal act." By the 18th century, this rule of law
gives rise to damages liability is an entirely separate was unquestioned.
question.

And in the 19th century, this view was taken by the


III court to be so well settled as not to require the citation
of authority.
On its face, the Eleventh Amendment applies only to
suits against a State brought by citizens of other States It was only natural, then, that this Court, in applying
and foreign nations. This textual limitation upon the the principles of sovereign immunity, recognized the
scope of the States' immunity from suit in federal court distinction between a suit against a State and one
was set aside in Hans v. Louisiana. Hans was a suit against its officer. For example, while the Court did
against the State of Louisiana, brought by a citizen of inquire as to whether a suit was "in essence" against
Louisiana seeking to recover interest on the State's the sovereign, it soon became settled law that the
bonds. The Court stated that some of the arguments Eleventh Amendment did not bar suits against state
favoring sovereign immunity for the States made officials in their official capacities challenging
during the process of the Amendment's ratification had unconstitutional conduct. This rule was reconciled with
become a part of the judicial scheme created by the sovereign immunity principles by use of the traditional
Constitution. As a result, the Court concluded that the rule that an action against an agent of the sovereign
Constitution prohibited a suit by a citizen against his or who had acted unlawfully was not considered to be
her own State. When called upon to elaborate against the sovereign. When an official acts pursuant
in Monaco v. Mississippi, the Court explained that the to an unconstitutional statute, the Court reasoned, the
Eleventh Amendment did more than simply prohibit absence of valid authority leaves the official ultra
suits brought by citizens of one State against another vires his authority, and thus a private actor stripped of
State. Rather, it exemplified the broader and more his status as a representative of the sovereign. In Ex
ancient doctrine of sovereign immunity, which parte Young, Court was merely restating a settled
operates to bar a suit brought by a citizen against his principle when it wrote:
own State without its consent.

"The Act to be enforced is alleged to be


The Court has subsequently adhered to this unconstitutional, and if it be so, the use of the name of
interpretation of the Eleventh Amendment. For the State to enforce an unconstitutional act to the
example, in Quern v. Jordan, the Court referred to the injury of complainants is a proceeding without the
Eleventh Amendment as incorporating "the traditional authority of, and one which does not affect, the State
sovereign immunity of the States." Similarly, in its sovereign or governmental capacity. It is simply
in Fitzpatrick v. Bitzer, the Court referred to "the an illegal act upon the part of a state official in
Eleventh Amendment, and the principle of state attempting by the use of the name of the State to
sovereignty which it embodies. . . ." enforce a legislative enactment which is void because
unconstitutional. If the act which the state Attorney
(REHNQUIST, J., dissenting). Thus, under our cases it is General seeks to enforce be a violation of the Federal
the doctrine of sovereign immunity, rather than the Constitution, the officer in proceeding under such
text of the Amendment itself, which is critical to the enactment comes into conflict with the superior
analysis of any Eleventh Amendment problem. authority of that Constitution, and he is in that case
stripped of his official or representative character and
The doctrine of sovereign immunity developed in is subjected in his person to the consequences of his
England, where it was thought that the King could not individual conduct."
The majority states that the holding of Ex parte that effect, if operative, has been attempted or done, is
Young is limited to cases in which relief is provided on the work of its government acting without authority, in
the basis of federal law, and that it rests entirely on the violation of its fundamental law, and must be looked
need to protect the supremacy of federal law. That upon, in all courts of justice, as if it were not and never
position overlooks the foundation of the rule had been. . . . The State of Virginia has done none of
of Young, as well Pennoyer v. these things with which this defence charges her. The
McConnaughy and Young's other predecessors. defendant in error is not her officer, her agent, or her
representative, in the matter complained of, for he has
The Young Court distinguished between the State and acted not only without her authority, but contrary to
its Attorney General because the latter, in violating the her express commands."
Constitution, had engaged in conduct the sovereign
could not authorize. The pivotal consideration was not It is clear that the Court in Poindexter attached no
that the conduct violated federal law, since nothing in significance to the fact that Virginia had been accused
the jurisprudence of the Eleventh Amendment permits of violating federal, and not its own, law. To the
a suit against a sovereign merely because federal law contrary, the Court treated the Federal Constitution as
is at issue. Indeed, at least since Hans v. Louisiana, part of Virginia's law, and concluded that the
the law has been settled that the Eleventh Amendment challenged action was not that of Virginia precisely
applies even though the State is accused of violating because it violated Virginia's law. The majority's
the Federal Constitution. In Hans, the Court held that position turns the Young doctrine on its head --
the Eleventh Amendment applies to all cases within sovereign immunity did not bar actions challenging
the jurisdiction of the federal courts, including those unconstitutional conduct by state officers, since the
brought to require compliance with federal law, and Federal Constitution was also to be considered part of
bars any suit where the State is the proper defendant the State's law -- and since the State could not and
under sovereign immunity principles. A long line of would not authorize a violation of its own law, the
cases has endorsed that proposition, holding that, officers' conduct was considered individual, and not
irrespective of the need to vindicate federal law, a suit sovereign. No doubt the Courts that
is barred by the Eleventh Amendment if the State is produced Poindexter and Young would be shocked to
the proper defendant. It was clear until today that "the discover that conduct authorized by state law but
State [is not] divested of its immunity 'on the mere prohibited by federal law is not considered conduct
ground that the case is one arising under the attributable to the State for sovereign immunity
Constitution or laws of the United States.'" purposes, but conduct prohibited by state law is
considered conduct attributable to the very State
Parden v. Terminal Railway of Ala. Docks Dept. The which prohibited that conduct. Indeed, in Tindal v.
pivotal consideration in Young was that it was not Wesley, the Court specifically found that it was
conduct of the sovereign that was at issue. The rule impossible to distinguish between a suit challenging
that unlawful acts of an officer should not be attributed unconstitutional conduct of state officers and a suit
to the sovereign has deep roots in the history of challenging any other type of unlawful behavior:
sovereign immunity, and makes Young reconcilable
with the principles of sovereign immunity found in the "If a suit against officers of a State to enjoin them from
Eleventh Amendment, rather than merely an enforcing an unconstitutional statute . . . be not one
unprincipled accommodation between federal and against the State, it is impossible to see how a suit
state interests that ignores the principles contained in against the individuals to recover the possession of
the Eleventh Amendment. property belonging to the plaintiff and illegally withheld
by the defendants can be deemed a suit against the
This rule plainly applies to conduct of state officers in State."
violation of state law. Young states that the significance
of the charge of unconstitutional conduct is that it These cases are based on the simple idea that an
renders the state official's conduct "simply an illegal illegal act strips the official of his state law shield,
act," and hence the officer is not entitled to the thereby depriving the official of the sovereign's
sovereign's immunity. Since a state officer's conduct in immunity. The majority criticizes this approach as
violation of state law is certainly no less illegal than his being "out of touch with reality" because it ignores the
violation of federal law, in either case, the official, by practical impact of an injunction on the State though
committing an illegal act, is "stripped of his official or directed at its officers. Yet that criticism cannot
representative character." For example, one account for Young, since an injunction has the same
of Young's predecessors held that a suit challenging an effect on the State whether it is based on federal or
unconstitutional attempt by the Virginia Legislature to state law. Indeed, the majority recognizes that
disavow a state contract was not barred by the injunctions approved by Young have an "obvious
Eleventh Amendment, reasoning that "inasmuch as, by impact on the State itself," In the final analysis, the
the Constitution of the United States, which is also the distinction between the State and its officers, realistic
supreme law of Virginia, that contract, when made, or not, is one firmly embedded in the doctrine of
became thereby unchangeable, irrepealable by the sovereign immunity. It is that doctrine, and not any
State, the subsequent act of January 26, 1882, and all theory of federal supremacy, which the Framers placed
other like acts, which deny the obligation of that in the Eleventh Amendment and which this Court
contract and forbid its performance, are not the acts of therefore has a duty to respect.
the State of Virginia. The true and real Commonwealth
which contracted the obligation is incapable in law of It follows that the basis for the Young rule is present
doing anything in derogation of it. Whatever having when the officer sued has violated the law of the
sovereign; in all such cases, the conduct is of a type position, but, as I have demonstrated in a case there is
that would not be permitted by the sovereign, and an avalanche of precedent squarely to the contrary.
hence is not attributable to the sovereign under
traditional sovereign immunity principles. In such a That the doctrine of sovereign immunity does not
case, the sovereign's interest lies with those who seek protect conduct which has been prohibited by the
to enforce its laws, rather than those who have sovereign is clearly demonstrated by the case on which
violated them. petitioners chiefly rely, Larson v. Domestic & Foreign
Commerce Corp. The Larson opinion teaches that the
"[P]ublic officials may become tortfeasors by exceeding actions of state officials are not attributable to the
the limits of their authority. And where they unlawfully State -- are ultra vires -- in two different types of
seize or hold a citizen's realty or chattels, recoverable situations: (1) when the official is engaged in conduct
by appropriate action at law or in equity . . . [t]he that the sovereign has not authorized, and (2) when he
dominant interest of the sovereign is then on the side has engaged in conduct that the sovereign has
of the victim, who may bring his possessory action to forbidden. A sovereign, like any other principal, cannot
reclaim that which is wrongfully withheld." authorize its agent to violate the law. When an agent
does so, his actions are considered ultra vires, and he
The majority's position that the Eleventh Amendment is liable for his own conduct under the law of agency.
does not permit federal courts to enjoin conduct that Both types of ultra vires conduct are clearly identified
the sovereign State itself seeks to prohibit thus is in Larson.
inconsistent with both the doctrine of sovereign
immunity and the underlying respect for the integrity "There may be, of course, suits for specific relief
of state policy which the Eleventh Amendment against officers of the sovereign which are not suits
protects. The issuance of injunctive relief which against the sovereign. If the officer purports to act as
enforces state laws and policies, if anything, enhances an individual and not as an official, a suit directed
federal courts' respect for the sovereign prerogatives against that action is not a suit against the sovereign.
of the States. The majority's approach, which requires If the War Assets Administrator had completed a sale of
federal courts to ignore questions of state law and to his personal home, he presumably could be enjoined
rest their decisions on federal bases, will create more, from later conveying it to a third person. On a similar
rather than less, friction between the States and the theory, where the officer's powers are limited by
federal judiciary. statute, his actions beyond those limitations are
considered individual, and not sovereign, actions. The
Moreover, the majority's rule has nothing to do with officer is not doing the business which the sovereign
the basic reason the Eleventh Amendment was added has empowered him to do or he is doing it in a way
to the Constitution. There is general agreement that which the sovereign has forbidden. His actions
the Amendment was passed because the States were are ultra vires his authority, and therefore may be
fearful that federal courts would force them to pay made the object of specific relief. It is important to note
their Revolutionary War debts, leading to their financial that, in such cases, the relief can be granted, without
ruin. Entertaining a suit for injunctive relief based on impleading the sovereign, only because of the officer's
state law implicates none of the concerns of the lack of delegated power. A claim of error in the exercise
Framers. Since only injunctive relief is sought, there is of that power is therefore not sufficient. And, since the
no threat to the state treasury of the type that jurisdiction of the court to hear the case may depend,
concerned the Framers, and if the State wishes to as we have recently recognized, upon the decision
avoid the federal injunction, it can easily do so simply which it ultimately reaches on the merits, it is
by changing its law. The possibility of States left necessary that the plaintiff set out in his complaint the
helpless in the face of disruptive federal decrees which statutory limitation on which he relies."
led to the passage of the Eleventh Amendment simply
is not presented by this case. Indeed, the Framers no Larson thus clearly indicates that the immunity
doubt would have preferred federal courts to base their determination depends upon the merits of the
decisions on state law, which the State is then free to plaintiff's claim. The same approach is employed
reexamine, rather than forcing courts to decide cases by Young -- the plaintiff can overcome the state
on federal grounds, leaving the litigation beyond state official's immunity only by succeeding on the merits of
control. its claim of unconstitutional conduct.

In light of the preceding, it should come as no surprise Following the two-track analysis of Larson, the cases
that there is absolutely no authority for the majority's considering the question whether the state official is
position that the rule of Young is inapplicable to entitled to the sovereign's immunity can be grouped
violations of state law. The only cases the majority into two categories. In cases like Larson, Malone v.
cites, for the proposition that Young is limited to the Bowdoin, and Florida Dept. of State v. Treasure
vindication of federal law do not consider the question Salvors, Inc., which usually involve the State
whether Young permits injunctive relief on the basis of functioning in its proprietary capacity, the ultra
state law -- in each of the cases, the question was vires issue can be resolved solely by reference to the
neither presented, briefed, argued, nor decided. It is law of agency. Since there is no specific limitation on
curious, to say the least, that the majority disapproves the powers of the officers other than the general
of reliance on cases in which the issue we face today limitations on their authority, the only question that
was decided sub silentio, yet it is willing to rely on need be asked is whether they have acted completely
cases in which the issue was not decided at all. In fact, beyond their authority. But when the State has placed
not only is there no precedent for the majority's specific limitations on the manner in which state
officials may perform their duties, as it often does in within his authority but in a manner contrary to state
regulatory or other administrative contexts such as statutes was not barred because the Eleventh
were considered in Scully v. Bird, and Johnson v. Amendment prohibits suits against States; it does not
Lankford, the ultra vires inquiry also involves the bar suits against state officials for actions not
question whether the officials acted in a way that state permitted by the State under its own law. The
law forbids. No sovereign would authorize its officials sovereign could not and would not authorize its officers
to violate its own law, and if the official does so, to violate its own law; hence an action against a state
then Larson indicates that his conduct is ultra officer seeking redress for conduct not permitted by
vires, and not protected by sovereign immunity. state law is a suit against the officer, not the
sovereign. Ex parte Young concluded in as explicit a
Larson confirms that the Court's disposition of this case fashion as possible that unconstitutional action by
in 1981 -- ordering the Court of Appeals to consider state officials is not action by the State even if it
respondents' state law claims -- was fully harmonious purports to be authorized by state law, because the
with established sovereign immunity principles. The Federal Constitution strikes down the state law
jurisdiction of the federal court was established by a shield. In the tort cases, if the plaintiff proves his case,
federal claim; the Court of Appeals therefore had there is by definition no state law defense to shield the
jurisdiction to resolve the case and to grant injunctive defendant. Similarly, when the state officer violates a
relief on either federal or state grounds. Respondents state statute, the sovereign has by definition erected
pleaded a specific statutory limitation on the way in no shield against liability. These precedents make clear
which petitioners were entitled to run Pennhurst. The that there is no foundation for the contention that the
District Court and the Court of Appeals have both majority embraces -- that Ex parte Young authorizes
found that petitioners operated Pennhurst in a way injunctive relief against state officials only on the basis
that the sovereign has forbidden. Specifically, both of federal law. To the contrary, Young is as clear as a
courts concluded that petitioners placed residents in bell: the Eleventh Amendment does not apply where
Pennhurst without any consideration at all of the there is no state law shield. That simple principle
limitations on institutional confinement that are found should control this case.
in state law, and that they failed to create community
living programs that are mandated by state law. In IV
short, there can be no dispute that petitioners ran
Pennhurst in a way that the sovereign had forbidden. The majority's decision in this case is especially unwise
Under the second track of the Larson analysis, in that it overrules a long line of cases in order to reach
petitioners were acting ultra vires because they were a result that is at odds with the usual practices of this
acting in a way that the sovereign, by statute, had Court. In one of the most respected opinions ever
forbidden. written by a Member of this Court, Justice Brandeis
wrote:
Petitioners readily concede, both in their brief and at
oral argument, that the Eleventh Amendment does not "The Court [has] developed, for its own governance in
bar a suit against state officers who have acted ultra the cases confessedly within its jurisdiction, a series of
vires. The majority makes a similar concession. Yet rules under which it has avoided passing upon a large
both ignore the fact that the cases, and most part of all the constitutional questions pressed upon it
especially Larson, set out a two-step analysis for ultra for decision. They are:"
vires conduct -- conduct that is completely beyond the
scope of the officer's authority, or conduct that the
sovereign has forbidden. In fact, the majority goes so "* * * *"
far as to quote the passage from Larson indicating that
a state official acts ultra vires when he completely ". . . The Court will not pass upon a constitutional
lacks power delegated from the State, ante at 465 U. S. question although properly presented by the record, if
101, n. 11. That quotation ignores sentences there is also present some other ground upon which
immediately preceding and following the quoted the case may be disposed of. This rule has found most
passage stating in terms that, where an official violates varied application. Thus, if a case can be decided on
a statutory prohibition, he acts ultra vires and is not either of two grounds, one involving a constitutional
protected by sovereign immunity. This omission is question, the other a question of statutory construction
understandable, since petitioners' conduct in this case or general law, the Court will decide only the latter.
clearly falls into the category of conduct the sovereign
has specifically forbidden by statute. Petitioners were
told by Pennsylvania how to run Pennhurst, and there The Siler case, cited with approval by Justice Brandeis
is no dispute that they disobeyed their instructions. Yet in Ashwander, employed a remarkably similar approach
without explanation, the Court repudiates the two- to that used by the Court of Appeals in this case. A
track analysis of Larson and holds that sovereign privately owned railroad corporation brought suit
immunity extends to conduct the sovereign has against the members of the railroad commission of
statutorily prohibited. Thus, contrary to the Court's Kentucky to enjoin the enforcement of a rate schedule
assertion, Larson is in conflict with the result reached promulgated by the commission. The Federal Circuit
today. Court found that the schedule violated the plaintiff's
federal constitutional rights, and granted relief.

In sum, a century and a half of this Court's Eleventh


Amendment jurisprudence has established the This Court affirmed, but it refused to decide the
following. A suit alleging that the official had acted constitutional question because injunctive relief
against the state officials was adequately supported by
state law. The Court held that the plaintiff's claim that "The policy's ultimate foundations . . . lie in all that
the schedule violated the Federal Constitution was goes to make up the unique place and character, in our
sufficient to justify the assertion of federal jurisdiction scheme, of judicial review of governmental action for
over the case, but then declined to reach the federal constitutionality. They are found in the delicacy of that
question, deciding the case on the basis of state law function, particularly in view of possible consequences
instead: for others stemming also from constitutional roots; the
comparative finality of those consequences; the
"Where a case in this court can be decided without consideration due to the judgment of other repositories
reference to questions arising under the Federal of constitutional power concerning the scope of their
Constitution, that course is usually pursued, and is not authority; the necessity, if government is to function
departed from without important reasons. In this case, constitutionally, for each to keep within its power,
we think it much better to decide it with regard to the including the courts; the inherent limitations of the
question of a local nature, involving the construction of judicial process, arising especially from its largely
the state statute and the authority therein given to the negative character and limited resources of
commission to make the order in question, rather than enforcement; withal in the paramount importance of
to unnecessarily decide the various constitutional constitutional adjudication in our system."
questions appearing in the record."
In addition, application of the Siler rule enhances the
The Siler principle has been applied on numerous decisionmaking autonomy of the States. Siler directs
occasions; when a suit against state officials has the federal court to turn first to state law, which the
presented both federal constitutional questions and State is free to modify or repeal. [Footnote 2/46] By
issues of state law, the Court has upheld injunctive leaving the policy determinations underlying injunctive
relief on state law grounds. relief in the hands of the State, the Court of Appeals'
approach gives appropriate deference to established
state policies.
The Court quoted from the Siler opinion and noted that
the "Court has characteristically dealt first with
possibly dispositive state law claims pendent to federal In contrast, the rule the majority creates today serves
constitutional claims." It added: none of the interests of the State. The majority
prevents federal courts from implementing state
policies through equitable enforcement of state law.
"Numerous decisions of this Court have stated the Instead, federal courts are required to resolve cases on
general proposition endorsed in Siler -- that a federal federal grounds that no state authority can undo.
court properly vested with jurisdiction may pass on the Leaving violations of state law unredressed and
state or local law question without deciding the federal ensuring that the decisions of federal courts may never
constitutional issues -- and have then proceeded to be reexamined by the States hardly comports with the
dispose of the case solely on the nonfederal ground. respect for States as sovereign entities commanded by
These and other cases illustrate in practice the wisdom the Eleventh Amendment.
of the federal policy of avoiding constitutional
adjudication where not absolutely essential to
disposition of a case." V

In fact, in this very case, we applied the Siler rule by One basic fact underlies this case: far from immunizing
remanding the case to the Court of Appeals with petitioners' conduct, the State of Pennsylvania
explicit instructions to consider whether respondents prohibited it. Respondents do not complain about the
were entitled to relief under state law. conduct of the State of Pennsylvania -- it is
Pennsylvania's commands which they seek to enforce.
Respondents seek only to have Pennhurst run the way
Not only does the Siler rule have an impressive Pennsylvania envisioned that it be run. Until today, the
historical pedigree, but it is also strongly supported by Court understood that the Eleventh Amendment does
the interest in avoiding duplicative litigation and the not shield the conduct of state officers which has been
unnecessary decision of federal constitutional prohibited by their sovereign.
questions.
Throughout its history, this Court has derived strength
from institutional self-discipline. Adherence to settled
doctrine is presumptively the correct course.
Departures are, of course, occasionally required by
changes in the fabric of our society. When a court,
rather than a legislature, initiates such a departure, it
has a special obligation to explain and to justify the
new course on which it has embarked. Today, however,
the Court casts aside well-settled respected doctrine
that plainly commands affirmance of the Court of
Appeals -- the doctrine of the law of the case, the
doctrine of stare decisis (the Court repudiates at least
28 cases) the doctrine of sovereign immunity, the
doctrine of pendent jurisdiction, and the doctrine of
judicial restraint. No sound reason justifies the further
prolongation of this litigation or this Court's voyage I respectfully dissent.
into the sea of undisciplined lawmaking.

As I said at the outset, this case has illuminated the


character of an institution.

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