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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided November 2, 2004
No. 01-7115
EMPAGRAN S.A., ET AL.,
APPELLANTS
v.
F. HOFFMAN–LAROCHE, LTD., ET AL.,
APPELLEES
On Remand from the United States Supreme Court
–————
Before: EDWARDS, HENDERSON, and ROGERS, Circuit Judges.
Opinion for the court filed Per Curiam.
Per Curiam: In F. Hoffman-LaRoche, Ltd. v. Empagran
S.A., U.S. , 124 S. Ct. 2359 (2004) (‘‘Empagran III’’),
the Supreme Court vacated this court’s judgment in Empa-
gran S.A. v. F. Hoffman-LaRoche, Ltd., 315 F.3d 338 (D.C.
Cir. 2003) (‘‘Empagran II’’), regarding the reach of the
domestic-injury exception to the Foreign Trade Antitrust
Improvements Act of 1982 (‘‘FTAIA’’), 15 U.S.C. § 6a. We
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
now face an issue that was left unresolved in Empagran II
and in the Supreme Court’s review of that decision.
Section 1 of the Sherman Act makes unlawful ‘‘[e]very
contract, combination TTT or conspiracy, in restraint of trade
or commerce among the several States, or with foreign
nationsTTTT’’ 15 U.S.C. § 1. Section 4 of the Clayton Act
confers a cause of action on ‘‘any person who shall be injured
in his business or property by reason of anything forbidden in
the antitrust laws,’’ and provides for treble damages. Id.
§ 15(a). Section 16 of the Clayton Act entitles ‘‘[a]ny person,
firm, corporation, or association TTT to sue for and have
injunctive relief TTT against threatened loss or damage by a
violation of the antitrust lawsTTTT’’ Id. § 26. In 1982,
Congress enacted the FTAIA, which amended the Sherman
Act to make the Sherman Act inapplicable to non-import
foreign commerce unless the ‘‘conduct has a direct, substan-
tial, and reasonably foreseeable effect’’ on domestic com-
merce, and ‘‘such effect gives rise to a claim under’’ the
Sherman Act. Id. § 6a. In vacating the judgment of this
court in Empagran II, the Supreme Court held that the
FTAIA does not reach claims arising out of foreign injury
that is entirely independent of the domestic effects of the
allegedly anticompetitive conduct. The Court noted, howev-
er, that appellants had raised an ‘‘alternative’’ claim: the
alleged anticompetitive conduct’s domestic effects were linked
to the asserted foreign harm, and without an adverse domes-
tic effect (i.e., higher prices in the United States), the sellers
could not have maintained their international price-fixing
arrangement and appellants would not have suffered their
foreign injury. The Court expressly declined to decide
whether this ‘‘but for’’ condition is sufficient to bring the
contested price-fixing conduct within the scope of the
FTAIA’s exception. The case was remanded to this court for
further proceedings on this issue.
Following remand from the Supreme Court, an order was
issued by this court instructing the parties to submit briefs on
three questions: (i) whether the alternative claim — which
appellants argued to the Supreme Court — was properly
pleaded; (ii) whether it was preserved before this court; and
3
(iii) if this alternative claim was properly pleaded and pre-
served, whether it should be resolved in the first instance by
the District Court. Empagran S.A. v. F. Hoffman-LaRoche,
Ltd., No. 01-7115, Order (D.C. Cir. June 21, 2004) (‘‘Briefing
Order’’). Having reviewed the parties’ briefs, the record of
proceedings in this case, the District Court’s decision in
Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 2001 WL
761360 (D.D.C. 2001) (‘‘Empagran I’’), and the decisions in
Empagran II and Empagran III, it is clear that appellants
raised their so-called ‘‘alternative’’ claim before the District
Court and before this court. It is also clear that appellees
have never suggested at any point in this protracted litiga-
tion, at least, not before now, that appellants’ alternative
claim was either insufficiently pleaded or waived. According-
ly, we hold that the alternative claim was both pleaded and
preserved.
The parties are in accord that this court, not the District
Court, should rule in the first instance on the sufficiency of
the alleged nexus between the purported foreign injuries and
the domestic effects. We agree. This recommended course
will preserve judicial resources and remain faithful to the
integrity of the appellate process, because the issue can be
resolved as a pure question of law. We will therefore order
full merits briefing and schedule oral argument on whether
the nature of the alleged link between foreign injury and
domestic effects is legally sufficient to trigger application of
the FTAIA’s domestic-injury exception, and decide the ques-
tion in the first instance.
Finally, appellants filed a motion in this court for a limited
remand that would permit the District Court to conduct
proceedings on issues relating to a $10 million settlement that
plaintiffs reached with a subset of the defendants. See Pls.-
Appellants’ Mot. for Limited Remand (Aug. 19, 2004), at 1.
The settlement was reached in December 2003, after this
court filed its decision in Empagran II and before the Su-
preme Court granted certiorari. See id. at 3. Appellants
submit that the settlement should be approved by the District
Court prior to and irrespective of whether the court is
ultimately found to have subject matter jurisdiction. See id.
4
at 4-6. We disagree. It would defy the basic tenets of
federal jurisdiction for this court to remand the case to the
District Court to oversee settlement proceedings before it has
been determined whether the District Court has subject
matter jurisdiction.
An order will be issued in due course establishing a briefing
schedule and setting the case for oral argument.
I. BACKGROUND
Appellants initially filed a class action lawsuit on behalf of
foreign and domestic purchasers of vitamins alleging that
appellees, foreign and domestic vitamin manufacturers and
distributors, had engaged in anticompetitive activity that
injured customers in the United States and abroad. Appel-
lees moved to dismiss the suit as to foreign purchasers who
bought vitamins from appellees outside the United States.
The District Court granted appellees’ motion to dismiss. See
Empagran I, 2001 WL 761360. This court reversed. See
Empagran II, 315 F.3d 338. The Supreme Court granted
certiorari on the question whether foreign purchasers could
bring a suit in U.S. courts when anticompetitive conduct with
foreign effects, which are entirely independent of any domes-
tic effects, gave rise to their claim. See Empagran III, 124 S.
Ct. 2359. The Supreme Court vacated this court’s judgment
and remanded the case to this court for further proceedings.
See id. at 2372-73.
The Supreme Court held that the domestic-injury exception
to the FTAIA does not reach claims arising out of a foreign
injury that is entirely independent of the domestic effects of
the challenged conduct. See id. at 2372 (‘‘We have assumed
that the anticompetitive conduct here independently caused
foreign injury; that is, the conduct’s domestic effects did not
help to bring about that foreign injury.’’). The Court ac-
knowledged that respondents-appellants also had raised an
‘‘alternative’’ claim:
Respondents argue, in the alternative, that the for-
eign injury was not independent. Rather, they say,
the anticompetitive conduct’s domestic effects were
5
linked to that foreign harm. Respondents contend
that, because vitamins are fungible and readily
transportable, without an adverse domestic effect
(i.e., higher prices in the United States), the sellers
could not have maintained their international price-
fixing arrangement and respondents would not have
suffered their foreign injury. They add that this
‘‘but for’’ condition is sufficient to bring the price-
fixing conduct within the scope of the FTAIA’s
exception.
Id. at 2372. The Supreme Court left open the question
whether this alternative claim was properly pleaded and
preserved below. See id.
This court subsequently ordered the parties to brief the
questions presented above. See Briefing Order of June 21,
2004.
II. ANALYSIS
A. Whether the Alternative Claim was Properly Pleaded
Appellants submit that their complaint complied with the
notice pleading requirement of the Federal Rules. Specifical-
ly, appellants argue that their complaint provided fair notice
of their legal theory that the domestic effects of the allegedly
anticompetitive conduct were necessary to induce the foreign
injury because the complaint alleged (i) a ‘‘global market’’ for
bulk vitamins; (ii) a small number of vitamins producers and
significant barriers to entry; (iii) horizontal agreements in
which North American and European manufacturers and
distributors (defendants) agreed to leave each other’s mar-
kets; and (iv) elimination of arbitrage as a key part of the
conspiracy. See Appellants’ Br. 2-3.
Rule 8(a) of the Federal Rules of Civil Procedure requires
that a complaint include a ‘‘short and plain statement’’ of the
grounds for jurisdiction and of the claims alleged. See FED.
R. CIV. P. 8(a). Appellants note that Rule 8(a) provides the
only pleading requirement for their complaint, see Appellants’
Br. 3 (citing, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506,
6
513 (2002) (‘‘Rule 8(a)’s simplified pleading standard applies
to all civil actions, with limited exceptions.’’)), and stress that
‘‘conclusory’’ allegations meet the requirement of this rule.
See id. at 3-4 (citing, e.g., Warren v. District of Columbia, 353
F.3d 36, 39 (D.C. Cir. 2004)).
Appellants also argue that legal theories need not be
pleaded. See Appellants’ Br. 4. They rely on Hanson v.
Hoffmann, 628 F.2d 42, 53 (D.C. Cir. 1980), which stressed
that ‘‘[t]he liberal concepts of notice pleading embodied in the
Federal Rules do not require the pleading of legal theories.’’
In Hanson, this court read an implicit First Amendment
claim into the plaintiff’s complaint, which alleged sex discrimi-
nation but included the ‘‘basic factual allegation’’ for a First
Amendment claim. See id. Hanson noted that ‘‘[u]nless a
defendant is prejudiced on the merits by a change in legal
theory, a plaintiff is not bound by the legal theory on which
he or she originally relied.’’ See id. at 53 n.11 (citing 5
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1219 (1969)).
Appellees counter that appellants’ complaint failed to plead
a nexus between their purported foreign injury and the
domestic effects of the allegedly anticompetitive activity. See
Appellees’ Br. 4. Appellees argue that what appellants’
complaint had actually alleged was foreign injury from a
worldwide conspiracy, which also harmed U.S. commerce.
See id. For this reason, appellees argue, the complaint failed
to provide adequate notice of appellants’ alternative claim.
See id.
Appellees do not respond to any of the complaint’s specific
allegations that appellants discuss in their brief, but rather
dismiss appellants’ argument as ‘‘post hoc wordplay.’’ Id.
Appellees also do not point to any part of appellants’ com-
plaint to support their characterization of what was actually
pleaded. Instead, they purport to rely on the District Court’s
decision, which stated that ‘‘[p]laintiffs have not alleged that
the precise injuries for which they seek redress here have the
requisite domestic effects necessary to provide subject matter
jurisdiction over this case. Plaintiffs argue that the jurisdic-
7
tional nexus is provided solely by the global nature of the
defendants’ conduct.’’ Empagran I, 2001 WL 761360, at *3,
quoted at Appellees’ Br. 4. Appellees also point to their
motion to dismiss, which stated that plaintiffs failed to allege
that the foreign injuries ‘‘arose’’ from domestic effects, and
plaintiffs’ response in opposition to the motion to dismiss,
which claimed that the ‘‘proper focus’’ for the jurisdictional
question is not whether plaintiffs’ transactions had effects on
domestic commerce, but whether defendants’ conduct had
such effects. See Appellees’ Br. 4-5 (discussing Defs.’ Mot. to
Dismiss (Mar. 6, 2001), reprinted at Appellees’ App. at 18-21;
Pls.’ Opp’n to Mot. to Dismiss (Apr. 6, 2001), reprinted at
Appellees’ App. at 27).
None of these statements on which appellees rely is incon-
sistent with appellants’ position, however. First, appellants
specifically argued before this court that the District Court
erred in finding that they had not established jurisdiction,
even under the District Court’s more narrow conception of
the requisite allegations. The District Court’s description of
appellants’ position, moreover, is consistent with appellants’
alternative claim: plaintiffs did not suggest that their foreign
injuries had effects on domestic commerce, but rather that
the allegedly anticompetitive activity, which created appel-
lants’ foreign injuries, could not have succeeded (and there-
fore injured them) without supracompetitive prices in the
United States, i.e., without domestic effects. According to
appellants’ alternative claim, the ‘‘global nature of the defen-
dants’ conduct’’ accounts for the interconnectedness of the
domestic effects and the foreign effects, which gave rise to
appellants’ injury.
Appellees’ motion to dismiss seems to misconstrue the
alternative claim, which states, not that anticompetitive ef-
fects on U.S. commerce were the independent cause of appel-
lants’ foreign injury, but rather that these effects comprised a
necessary link in creating the foreign injury. Thus, appel-
lants’ alternative claim is consistent with the argument in
their opposition to the motion to dismiss that the focus should
not be on whether plaintiffs’ transactions affected domestic
commerce. The appropriate question under appellants’ alter-
8
native claim would be whether appellees’ anticompetitive con-
duct had effects in the United States that were necessary to
achieve appellants’ injury abroad.
Appellants contend, moreover, that because appellees never
before asserted that appellants failed to satisfy Federal Rules
of Civil Procedure Rule 8, in spite of the fact that appellants
argued their alternative claim before the District Court, this
court, and the Supreme Court, appellees have waived this
argument. See Appellants’ Br. 4-7. Appellants point to
Lennon v. U.S. Theatre Corp., 920 F.2d 996, 1000 (D.C. Cir.
1990), which noted that a party’s failure to challenge the
absence of a necessary pleading under Federal Rules of Civil
Procedure Rule 8 ‘‘in all likelihood waive[s] any waiver de-
fense that [the party’s] omission might otherwise have creat-
ed.’’ More importantly, appellants submit that because they
raised the alternative claim at every stage in the litigation,
appellees’ silence on this point demonstrates that appellees
understood the complaint to allege the alternative claim. See
Appellants’ Br. 4, 6-7.
Appellants rely on Arent v. Shalala, 70 F.3d 610, 618 (D.C.
Cir. 1995), which held that ‘‘lack of specificity is not fatal [to a
complaint] so long as the defendant is given ‘fair notice’ of the
plaintiff’s claim.’’ In Arent, appellants challenged final regu-
lations on nutritional labeling promulgated by the Food and
Drug Administration. This court found that although appel-
lants’ amended complaint was ambiguous and the record was
unclear as to which of two possible claims appellants intended
to include, the amended complaint was sufficient because the
Food and Drug Administration ‘‘had fair notice of the inter-
pretation of appellants’ amended complaint for which appel-
lants TTT argue[d] on appeal.’’ Id. at 619, quoted at Appel-
lants’ Br. 7. Appellants submit that this is an easier case
than Arent, because even if this court concludes that the
complaint is ambiguous, the record is clear: appellants in-
tended the complaint to allege their alternative claim, and
argued the alternative claim before the District Court, this
court, and the Supreme Court. At the status conference
before the District Court, for example, appellants argued at
length that a global market for bulk vitamins existed and that
9
control of the U.S. market was necessary for the conspiracy
to succeed. See Tr. of Status Conference (May 23, 2001),
reprinted at Appellants’ App. at 67-71. Thus, appellants
submit that appellees received ample notice of the alternative
claim, but nevertheless failed to contest whether it was
properly pleaded. Appellees’ brief is silent on appellants’
reliance on Arent; appellees assert only that they did not
waive any arguments at the status conference because they
were pressed for time. See Appellees’ Br. 5 n.4.
Appellants are correct that appellees’ failure to challenge
the complaint under Rule 8, even after the alternative claim
was repeatedly argued by appellants, establishes that the
complaint sufficiently placed appellees on notice regarding
the alternative claim and therefore complied with the Federal
Rules. Appellees failed to challenge the alternative claim
under Rule 8, not only during the status conference, but also
at any subsequent point before the District Court or before
this court. Appellees’ silence on this point suggests that the
complaint adequately placed them on notice regarding the
alternative claim.
B. Whether the Alternative Claim was Preserved
Appellants argue that they have preserved their alternative
claim by advancing it in briefs or oral arguments at every
stage in this litigation. See Appellants’ Br. 4. Appellees
counter that appellants waived their alternative claim because
they failed to ‘‘raise it clearly in the district court.’’ Appel-
lees’ Br. 5. But appellees do not explain what exactly was
unclear about the way that appellants raised it. In contrast,
appellants discussed their argument before the District Court
at length. At the status conference, appellants’ counsel ex-
plained how the global market for bulk vitamins functioned,
including that control of the U.S. market was necessary
because otherwise arbitrage would destroy supracompetitive
pricing. Appellants’ counsel stressed that
[i]f you affected the prices in the United States, you
affected the prices around the world, regardless of
where you wereTTTT That is [ ] where the intercon-
nection in this market comes in. It’s not just for-
10
eign commerce. It’s not just United States com-
merce. It is commerce literally that was held in
balance as world commerce by the defendants, and
adjustments were made, set and fixed with regard to
the world market conditions.
Tr. of Status Conference (May 23, 2001), reprinted at Appel-
lants’ App. at 71, quoted at Appellants’ Br. 5. Appellants
argue that this discussion before the District Court preserved
the issue for appeal. See Appellants’ Br. 5 n.1.
Appellants point to Fraternal Order of Police v. United
States, 173 F.3d 898, 902 (D.C. Cir. 1999), which held that
presenting a claim in oral argument before the district court
‘‘was enough to satisfy the general requirement that an issue
on appeal be raised in the trial court.’’ Fraternal Order of
Police also stressed that ‘‘the District Court for the District
of Columbia regularly considers arguments raised for the
first time at oral argument in deciding dispositive motions.’’
Id. Appellees counter that Fraternal Order of Police is not
on point because appellants did not rely on the alternative
claim but rather argued before the District Court that they
did not need to establish a nexus between the domestic
effects and the foreign injury. See Appellees’ Br. 5-6. Ap-
pellees’ attempt to distinguish Fraternal Order of Police is
unavailing: appellees seem to misconstrue the meaning of an
‘‘alternative’’ claim, which is alternative because appellants
rely on a different, primary theory.
Appellants also point to their discussion of the alternative
claim in their briefs before this court in Empagran II, and
underscore that the court itself recognized that appellants
had raised the alternative claim. See Appellants’ Br. 6.
Indeed, this court stated in Empagran II:
In the alternative, appellants claim that their com-
plaint states a viable cause of action even under the
District Court’s restrictive view of FTAIA. Appel-
lants contend that appellees caused injury to pur-
chasers outside of the United States as a result of
the anticompetitive effects of price changes and sup-
ply shifts in United States commerce. Not only was
11
United States commerce directly affected by the
worldwide conspiracy, appellants say, but the cartel
raised prices around the world in order to keep
prices in equilibrium with United States prices in
order to avoid a system of arbitrage. Thus, accord-
ing to appellants, the ‘‘fixed’’ United States prices
acted as a benchmark for the world’s vitamin prices
in other markets. On this view of the alleged facts,
appellants claim that the foreign plaintiffs were in-
jured as a direct result of the increases in United
States prices even though they bought vitamins
abroad.
315 F.3d at 341. Appellants establish that they also pre-
served the alternative claim before the Supreme Court, by
addressing it in their briefs and at oral argument. See
Appellants’ Br. 6.
Appellants argue, moreover, that because appellees never
suggested to the District Court or to this court that the
alternative claim was waived, they have waived their chance
to make such an argument. See id. at 6. Appellants are
correct; the alternative claim was preserved, because appel-
lants have demonstrated that they consistently raised the
claim and appellees do not purport to have argued to this
court or the court below that the claim was waived. See, e.g.,
United States v. Layeni, 90 F.3d 514, 522 (D.C. Cir. 1996)
(‘‘The government, however, has waived the waiver argument
by not raising it.’’).
C. Whether this Court Should Remand the Case to the
District Court
The parties (as well as the amici curiae) are in agreement
that this court should not remand the case to the District
Court before it determines whether the nature of the link
alleged by appellants is legally sufficient to trigger application
of the FTAIA’s domestic-injury exception. Appellants, appel-
lees, and their amici curiae all argue that this is a question of
law best resolved by this court in the first instance.
12
Appellants argue against remand absent further guidance
from this court because they read the Supreme Court’s
decision as contemplating this court’s resolution of the legal
sufficiency of the complaint. See Appellants’ Br. 10-11. They
argue that this is a question of law and that their proposed
course best preserves judicial resources. They also submit
that remanding to the District Court without further instruc-
tion would leave the trial court ‘‘somewhat at sea.’’ Id. at 11.
Appellees agree that the sufficiency of any alleged jurisdic-
tional link between domestic effects and foreign injury is a
question that ‘‘can be answered as a matter of lawTTTT’’
Appellees’ Br. 6. Appellees point to Sniado v. Bank Austria
AG, 378 F.3d 210 (2d Cir. 2004) (per curiam), in which the
Second Circuit vacated, in light of Empagran III, a prior
ruling on remand from the Supreme Court. The court of
appeals also decided the question whether the plaintiff’s
complaint could have alleged the ‘‘alternative’’ theory noted in
Empagran II, despite the fact that the plaintiff had not
previously raised the argument to the district court or to the
court of appeals, because the Second Circuit concluded that
the plaintiff’s ‘‘alternative theory TTT is purely legal and
requires no further development of the record.’’ See id. at
213.
The United States and the Federal Trade Commission
(‘‘FTC’’), amici curiae in support of appellees, also argue
against a remand to the District Court in this case because
‘‘the issue is purely legalTTTT’’ U.S. & FTC Amicus Curiae
Br. 1. Amici curiae contend that this court’s resolution of the
question not only would preserve judicial resources but also
would prevent harm to the United States in deterring anti-
trust violations by removing a disincentive to seek amnesty.
See id. at 1-2.
No party or amici has presented any argument for remand-
ing this case to the District Court. The parties are correct
that the Supreme Court seems to have suggested that it
would be appropriate for this court to decide the question:
‘‘Respondents remain free to ask the Court of Appeals to
13
consider the [alternative] claim. The Court of Appeals may
determine whether respondents properly preserved the argu-
ment, and, if so, it may consider it and decide the related
claim.’’ Empagran III, 124 S. Ct. at 2372. The parties are
also correct that the question whether appellants’ alternative
claim provides a sufficient nexus can be decided as a pure
question of law. It should be noted, however, that one circuit
has remanded a similar case, in light of Empagran III,
instructing the district court, ‘‘should it deem it necessary or
helpful, [to] give the parties the opportunity to present evi-
dence as to whether the alleged anticompetitive conduct’s
domestic effects were linked to the alleged foreign harm.’’
BHP New Zealand Ltd. v. UCAR Int’l, Inc., 106 Fed. Appx.
138, 2004 WL 1771436, at *2 (3d Cir. 2004), noted at Appel-
lees’ Br. 6 n.5.
On balance, we agree with the parties that reaching the
legal question at this point would not stymie the development
of an appropriate record: If the legal argument for the
jurisdictional nexus is sufficient to survive a motion to dis-
miss, the parties will each have an opportunity to develop
their case before the trial court. If the legal argument is
without merit, then judicial economy supports a ruling by this
court in the first instance. Appellees’ arguments on the
merits are not properly before the court at this juncture, so
we will not consider them. These arguments, and the argu-
ments in support of appellants’ alternative claim, will be
subject to full briefing and oral argument before the court
reaches judgment on the alternative claim.
D. Motion for Limited Remand
There is one last matter pending before the court that
warrants our attention at this juncture. On August 19, 2004,
appellants filed a motion in this court for a limited remand
that would permit the District Court to conduct proceedings
on issues relating to a $10 million settlement that plaintiffs
reached with a subset of the defendants. See Pls.-Appellants’
Mot. for Limited Remand (Aug. 19, 2004), at 1. The settle-
ment was reached in December 2003, after the court of
appeals filed its decision and before the Supreme Court
14
granted certiorari. See id. at 3. Appellants submit that the
settlement should be approved by the District Court prior to
and irrespective of whether the court is ultimately found to
have subject matter jurisdiction. See id. at 4-6. Appellants
contend that permitting this limited remand advances the
parties’ and potential class members’ right to finality. See id.
at 4-5.
On September 3, 2004, appellees filed an opposition to
appellants’ motion. See Defs.-Appellees’ Resp. in Opp’n of
Mot. for Limited Remand. Appellees argued that it would be
inappropriate for the District Court to oversee a settlement
before the question whether the District Court has subject
matter jurisdiction over this case is resolved. See id. at 3-7.
Appellees submit that the limited remand is a poor use of
scarce judicial resources. See id. at 4-5. Appellees also
stress that the limited remand is counter to their interests,
because it would force them to expend time and resources in
settlement-related proceedings on a claim that may have no
jurisdictional basis in U.S. courts. See id. at 5.
Appellees are correct that it would be improper for this
court to remand the case to the District Court to oversee
settlement proceedings prior to any determination whether
the District Court actually has subject matter jurisdiction.
Appellants’ proposal to permit a limited remand for settle-
ment proceedings before it is determined whether the District
Court has subject matter jurisdiction is in tension with the
basic tenets of federal jurisdiction. See Tuck v. Pan Am.
Health Org., 668 F.2d 547, 549 (D.C. Cir. 1981) (‘‘Jurisdiction
is, of necessity, the first issue for an Article III court. The
federal courts are courts of limited jurisdiction, and they lack
the power to presume the existence of jurisdiction in order to
dispose of a case on any other grounds.’’).
III. CONCLUSION
In due course, the court will issue an order instructing the
parties to submit full merits briefs on the question whether
the nature of the alleged link between foreign injury and
domestic effects is legally sufficient to trigger application of
15
the FTAIA’s domestic-injury exception. The order will also
set a date for oral arguments in this case.