OI European Group BV v. Bolivarian Republic of Venezuela

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

Nos. 23-1647, 23-1648, 23-1649, 23-1650, 23-1651, 23-1652,
23-1781
_____________

OI EUROPEAN GROUP B.V.
v.
BOLIVARIAN REPUBLIC OF VENEZUELA

PETROLEOS DE VENEZUELA, S.A.,
Appellant in No. 23-1647
_____________

NORTHROP GRUMMAN SHIP SYSTEMS, INC,
f/k/a Ingalls Shipbuilding, Inc.
v.
THE MINISTRY OF DEFENSE OF THE REPUBLIC OF
VENEZUELA

PETROLEOS DE VENEZUELA, S.A.,
Appellant No. 23-1648
_____________

ACL1 INVESTMENTS LTD.;
ACL2 INVESTMENTS LTD.;
LDO (CAYMAN) XVIII LTD.
v.
BOLIVARIAN REPUBLIC OF VENEZUELA
 PETROLEOS DE VENEZUELA, S.A.,
Appellant No. 23-1649
_____________

RUSORO MINING LIMITED
v.
BOLIVARIAN REPUBLIC OF VENEZUELA

PETROLEOS DE VENEZUELA, S.A.,
Appellant No. 23-1650
_____________

KOCH MINERALS SARL;
KOCH NITROGEN INTERNATIONAL SARL
v.
BOLIVARIAN REPUBLIC OF VENEZUELA

PETROLEOS DE VENEZUELA, S.A.,
Appellant No. 23-1651
_____________

GOLD RESERVE INC.
v.
BOLIVARIAN REPUBLIC OF VENEZUELA

PETROLEOS DE VENEZUELA, S.A.,
Appellant No. 23-1652
_____________

OI EUROPEAN GROUP B.V.
v.
BOLIVARIAN REPUBLIC OF VENEZUELA,
Appellant No. 23-1781

2
 _____________

On Appeal from the United States District Court
for the District of Delaware
(D.C. Nos. 1-19-mc-00290, 1-20-mc-00257, 1-21-mc-00046,
1-21-mc-00481,
1-22-mc-00156, 1-22-mc-00453)
District Judge: Honorable Leonard P. Stark
_____________

Argued
June 1, 2023
_____________

Before: BIBAS, MATEY, and FREEMAN, Circuit Judges.

(Filed: July 7, 2023)
_____________

Jonathan M. Albano
Christopher L. Carter
Morgan Lewis & Bockius
One Federal Street
Boston, MA 02110

Jody C. Barillare
Morgan Lewis & Bockius
1201 N Market Street
Suite 2201
Wilmington, DE 19801

James D. Nelson
David B. Salmons [ARGUED]

3
Morgan Lewis & Bockius
1111 Pennsylvania Avenue NW
Suite 800 North
Washington, DC 20004
Counsel for Plaintiff - Appellee in Nos. 23-1647 & 23-
1781

Laura D. Jones
Peter J. Keane
Pachulski Stang Ziehl & Jones
919 N Market Street
P.O. Box 8705, 17th Floor
Wilmington, DE 19801

Robert H. Poole, II
Alston & Bird
1201 W Peachtree Street
One Atlantic Center, Suite 4900
Atlanta, GA 30309

Rajat Rana
Alexander A. Yanos
Alston & Bird
90 Park Avenue
12th Floor
New York, NY 10016
Counsel for Plaintiffs - Appellees in Nos. 23-1648 &
1651

Joshua S. Bolian
Riley & Jacobson
1906 W End Avenue
Nashville, TN 37203

4
Marie McManus Degnan
Ashby & Geddes
500 Delaware Avenue
P.O. Box 1150, 8th Floor
Wilmington, DE 19899
Counsel for Plaintiffs - Appellees in No. 23-1649

James E. Berger
DLA Piper
1251 Avenue of the Americas
27th Floor
New York, NY 10020

R. Craig Martin
DLA Piper
1201 N Market Street
Suite 2100
Wilmington, DE 19801
Counsel for Plaintiff - Appellee in No. 23-1650

Katherine G. Connolly
Norton Rose Fulbright
555 California Street
Suite 3300
Los Angeles, CA 94104

Matthew H. Kirtland
Norton Rose Fulbright
799 9th Street NW
Suite 1000
Washington, DC 20001

5
Kevin J. Mangan
Stephanie S. Riley
Matthew P. Ward
Womble Bond Dickinson
1313 N Market Street
Suite 1200
Wilmington, DE 19801
Counsel for Plaintiff - Appellee in No. 23-1652

Aubre Dean
Kevin A. Meehan
Juan O. Perla
Joseph D. Pizzurro
Allesandra D. Tyler
Curtis Mallet-Prevost Colt & Mosle
101 Park Avenue
34th floor
New York, NY 10178
Counsel for Intervenor - Appellant Petroleos de
Venezuela, S.A. in Nos. 23-1647, 23-1648, 23-1649, 23-
1650, 23-1651, 23-1652, 23-1781

Ginger D. Anders
Kathleen A. Foley
Elaine J. Goldenberg
Donald B. Verrilli, Jr. [ARGUED]
Sarah Weiner
Munger Tolles & Olson
601 Massachusetts Avenue NW
Suite 500e
Washington, DC 20001
Counsel for Defendant - Appellee Bolivarian Republic
of Venezuela in Nos. 23-1647, 23-1648, 23-1649, 23-

6
 1650, 23-1651, 23-1652, 23-1781

Miguel A. Estrada
Matthew S. Rozen
Lucas C. Townsend
Gibson Dunn & Crutcher
1050 Connecticut Avenue NW
Suite 300
Washington, DC 20036

Rahim Moloo
Jason W. Myatt
Robert L. Weigel
Gibson Dunn & Crutcher
200 Park Avenue
47th Floor
New York, NY 10166
Counsel Amicus Curiae Crystallex International Corp
in Nos. 23-1647, 23-1648, 23-1649, 23-1650, 23-1651,
23-1652, 23-1781

___________

OPINION OF THE COURT
____________

MATEY, Circuit Judge.

Sovereignty shoulders “[t]hat power . . . whose actions
are not subject to the controul of any other power, so as to be
annulled at the pleasure of any other human will.” Hugo
Grotius, The Rights of War and Peace 62 (A.C. Campbell

7
trans., M. Walter Dunne 1901) (1625).1 It is a recognition of
authority long thought essential for the mutual flourishing of
states and “the advantage of their affairs.” Emer de Vattel, The
Law of Nations 17 (Béla Kapossy & Richard Whatmore eds.,
2008) (1758). Congress codified its understanding of foreign
sovereignty in the Foreign Sovereign Immunities Act of 1976
(“FSIA”).

In this consolidated appeal, six judgment creditors of
the Bolivarian Republic of Venezuela hope to attach property
held by Petróleos de Venezuela, S.A. (“PDVSA”),
Venezuela’s national oil company. It all arises from a long-
running dispute. Four years ago, this Court wrote the most
recent chapter, holding PDVSA operated as Venezuela’s alter
ego and allowing a judgment creditor (Crystallex International
Corporation) to attach PDVSA’s shares in a U.S. subsidiary.
Our six creditors2 followed in those footsteps and registered

1
Sovereignty was widely understood as a necessary
extension of the natural law. See, e.g., Thirty Hogsheads of
Sugar v. Boyle, 13 U.S. (9 Cranch) 191, 198 (1815) (“The law
of nations” is learned through “resort to the great principles of
reason and justice.”). In the twentieth century, sovereignty slid
more to matters of political and commercial concerns. See, e.g.,
George K. Foster, When Commercial Meets Sovereign: A New
Paradigm for Applying the Foreign Sovereign Immunities Act
in Crossover Cases, 52 Hous. L. Rev. 361, 369–72 (2014).
2
OI European Group B.V. (“OIEG”); ACL1
Investments Ltd., ACL2 Investments Ltd., and LDO (Cayman)
XVIII Ltd.; Gold Reserve Inc.; Koch Minerals Sàrl and Koch
Nitrogen International Sàrl; Northrop Grumman Ship Systems,
Incorporated, formerly known as Ingalls Shipbuilding,

8
their arbitration awards against Venezuela in the District of
Delaware, seeking a writ of attachment against PDVSA’s
holdings. PDVSA resisted, arguing that changes in
Venezuela’s government destroyed the factual foundations
supporting our prior alter-ego decision. But even accounting
for those differences, the District Court correctly concluded
that PDVSA remains the alter ego of Venezuela. And because
reviewing PDVSA’s other arguments would stretch the limited
grant of our appellate jurisdiction well beyond the words
written by Congress, we decline the invitation and will affirm
the District Court’s judgment.

I.

Venezuela boasts the “largest proven oil reserves in the
world,” a stockpile long under the “significant control” of the
state. App. 30 (citations omitted). Venezuela formed PDVSA
in 1975 to exploit those resources, but this case has little to do
with oil. It centers on Venezuela’s expropriation of glass
containers and mining interests, missed payments for warship
repairs, and bond defaults. And it continues a story we recently
summarized in the parallel suit brought by Crystallex
International Corporation against Venezuela over the
expropriation of gold deposits. We begin with an even shorter
summary.

A.

In 2011, Venezuela nationalized several gold mines and
seize the surrounding factories without compensation. That,
Crystallex alleged, breached its agreement with Venezuela for

Incorporated; and Rusoro Mining Limited. Together, we refer
to them as “Creditors.”

9
development rights. See Crystallex Int’l Corp. v. Bolivarian
Republic of Venezuela, 333 F. Supp. 3d 380, 386 (D. Del.
2018) (“Crystallex I”). Crystallex won relief in an international
arbitral tribunal, which awarded $1.2 billion plus interest. Id.
The District Court for the District of Columbia confirmed the
award, yielding a federal judgment. Crystallex Int’l Corp. v.
Bolivarian Republic of Venezuela, 244 F. Supp. 3d 100, 122
(D.D.C. 2017). When Venezuela did not pay, Crystallex
registered its judgment with the Delaware District Court under
28 U.S.C. § 19633 hoping to access the assets of PDVSA.
Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela, 932
F.3d 126, 136 (3d Cir. 2019) (“Crystallex II”). Crystallex
argued that, as a judgment creditor of Venezuela, it could look
to PDVSA for satisfaction because PDVSA “is so extensively
controlled by” Venezuela that it may be held liable for the
government’s shortcomings. Id. at 140 (citations omitted). So
Crystallex sued Venezuela4 to attach PDVSA’s shares in
Petróleos de Venezuela Holding, Inc. (“PDVH”), PDVSA’s
wholly owned United States subsidiary, under Federal Rule of
Civil Procedure 69(a). Id. at 132–34. Doing so, Crystallex
thought, would ultimately allow it to reach funds in CITGO
Petroleum Corporation, a Delaware corporation indirectly

3
Stating that a registered judgment “shall have the same
effect as a judgment of the district court of the district where
registered and may be enforced in like manner.”
4
Federal courts have jurisdiction “to confirm an award
made pursuant to . . . an agreement to arbitrate, if [] the
arbitration takes place or is intended to take place in the United
States.” 28 U.S.C. § 1605(a)(6). Crystallex’s arbitration
proceedings against Venezuela occurred before the
International Centre for Settlement of Investment Disputes in
Washington, D.C. Crystallex I, 333 F. Supp. 3d at 386.

10
owned by PDVH.5 See Crystallex I, 333 F. Supp. 3d at 418
n.36.

PDVSA intervened in the attachment proceeding and
moved to dismiss based on its claim to sovereign immunity.
Crystallex II, 932 F.3d at 134. The District Court denied the
motion, finding PDVSA was Venezuela’s “alter ego” under the
principles outlined in First National City Bank v. Banco Para
El Comercio Exterior de Cuba, 462 U.S. 611 (1983)
(“Bancec”). See Crystallex I, 333 F. Supp. 3d at 404–14. That
finding made PDVSA’s property subject to execution to satisfy
Venezuela’s debt. Id. at 416–17.

We affirmed that decision. See Crystallex II, 932 F.3d
at 150–51. We pointed to Venezuela’s economic control over
and profit-sharing with PDVSA, its heavy hand in managing
PDVSA’s affairs, the value extracted from PDVSA, and the
ability to avoid obligations in U.S. courts by retaining a
separate identity. Id. at 146–49. All enough, we concluded, to
show that PDVSA was Venezuela’s alter ego. Id. at 152
(“Indeed, if the relationship between Venezuela and PDVSA
cannot satisfy the Supreme Court’s extensive-control
requirement, we know nothing that can.”). And we likewise
affirmed the order permitting attachment of PDVSA’s shares
under the FSIA. Id.

5
PDVSA wholly owns the Delaware corporation
PDVH, which wholly owns CITGO Holding, Inc., which
wholly owns CITGO Petroleum Corporation. Crystallex I, 333
F. Supp. 3d at 418 n.36.

11
 B.

Hoping to seize on Crystallex’s success, Creditors also
obtained arbitration awards against Venezuela and
Venezuela’s Ministry of Defense over debts incurred under
broken contracts. Creditors then confirmed their arbitration
awards in U.S. courts, registered those judgments with the
Delaware District Court pursuant to 28 U.S.C. § 1963, and
moved for writs of attachment on PDVSA’s shares of PDVH.6
PDVSA intervened, stressing changes in the relationship
between Venezuela and PDVSA since 2019.

In 2018, Venezuelan President Nicolás Maduro
disqualified opposition candidates for the presidency and
declared himself the victor. Dissatisfied, the National
Assembly named opposition leader Juan Guaidó Interim
President of Venezuela. In 2019, the U.S. Government
recognized Guaidó as Interim President and explicitly
withdrew recognition of the Maduro Government, although it
acknowledged Maduro’s continued power in Venezuela. See
Jiménez v. Palacios, 250 A.3d 814, 822 (Del. Ch. 2019). In
2019, Guaidó took control of the shares of PDVH, appointing
an ad hoc board of directors of PDVSA to manage the U.S.
subsidiaries. Guaidó remained Interim President for the rest of
the time period relevant to this appeal.

Despite those changes, the Delaware District Court
granted Creditors’ motion, concluding they had rebutted the
presumption that Venezuela and PDVSA are separate and
established PDVSA as the alter ego of Venezuela subject to the

6
As in the Crystallex proceedings, the District Court
had jurisdiction under the FSIA. See Crystallex Int’l Corp., 244
F. Supp. 3d at 109 (applying 28 U.S.C. § 1605(a)(6)).

12
jurisdiction of the federal courts. Organizing its factual
findings around the Bancec factors discussed below, the
Delaware District Court comprehensively described PDVSA’s
relationship to Venezuela—considering both the Guaidó
Government’s control over PDVSA’s U.S. assets through its
ad hoc administrative board (“Ad Hoc Board”) and the Maduro
Regime’s ongoing control of PDVSA in Venezuela and
abroad—and concluded PDVSA remains an alter ego of
Venezuela. The Delaware District Court also “incorporate[d]
by reference its analysis of the legal standards governing the
issuance of writs of attachment (including its discussion of
Federal Rule of Civil Procedure 69(a)(1) and 10 Del. C. §
5031) with respect to property of an agency or instrumentality
of a foreign sovereign as set out in Crystallex I.” App. 62
(citing Crystallex I, 333 F. Supp. 3d at 388–89, 394–95, 399–
401, 404–05).

PDVSA appealed (and Venezuela intervened),7
challenging the alter-ego finding and asking us to consider the
attachment issue under a theory of “pendent appellate
jurisdiction.” PDVSA also asked for an emergency stay on
both divestiture grounds and the traditional discretionary stay
factors. After granting an administrative stay, we ordered
merits briefing on an expedited schedule. Agreeing with the
District Court’s well-reasoned opinion and declining to reach
the attachment issue, we will affirm.8

7
In one of the OIEG matters, Venezuela appealed and
PDVSA intervened.
8
The District Court had subject matter jurisdiction
under 28 U.S.C. § 1963, and we discuss our jurisdiction under
the collateral order doctrine in Section IV. “We review
questions of law de novo and findings of fact for clear error,

13
 II.

We review a narrow question: Did the District Court
properly deny PDVSA immunity? The FSIA permitted the
District Court to exercise jurisdiction over Venezuela to
enforce a judgment based on confirmed arbitration awards
against the country.9 And “so long as PDVSA is Venezuela’s
alter ego under Bancec, the District Court had the power to
issue a writ of attachment on that entity’s non-immune assets
to satisfy the judgment against the country.” Crystallex II, 932
F.3d at 139. Although PDVSA points to some changes in the

and we review de novo the ultimate determination whether to
treat PDVSA as Venezuela’s alter ego.” Crystallex II, 932 F.3d
at 136.
9
The FSIA’s arbitration exception provides that “[a]
foreign state shall not be immune . . . in any case . . . in which
the action is brought . . . to confirm an award made pursuant
to . . . an agreement to arbitrate, if . . . the arbitration takes
place or is intended to take place in the United States.” 28
U.S.C. § 1605(a)(6).
Creditors confirmed their arbitration awards in United
States courts. They then registered their judgments in Delaware
District Court. And “when a party establishes that an exception
to sovereign immunity applies in a merits action that results in
a federal judgment—here, the exception for confirming
arbitration awards, 28 U.S.C. § 1605(a)(6)—that party does
not need to establish yet another exception when it registers the
judgment in another district court under 28 U.S.C. § 1963 and
seeks enforcement in that court. Rather, the exception in the
merits action sustains the court’s jurisdiction through
proceedings to aid collection of a money judgment rendered in
the case.” Crystallex II, 932 F.3d at 137 (cleaned up).

14
structure of Venezuela’s government, the nature of the nation’s
continued involvement in PDVSA’s affairs again establishes
that PDVSA is Venezuela’s alter ego, as will be discussed in
Section III. But first, we explain the nature of our examination.

A.

Enacted in 1976, the FSIA specifies when United States
courts will recognize claims of sovereign immunity. Our
interpretation of the text must give effect to the legislature’s
charge, Brown v. Barry, 3 U.S. (3 Dall.) 365, 367 (1797), stated
through the “ordinary meaning . . . at the time Congress
enacted the statute,” Perrin v. United States, 444 U.S. 37, 42
(1979). Because interpretation “is a holistic endeavor,” United
Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd.,
484 U.S. 365, 371 (1988), some context is key to
understanding Congress’s aim, see Felix Frankfurter, Some
Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527,
538–39 (1947) (Legislation “seeks to obviate some mischief,
to supply an inadequacy, to effect a change of policy, to
formulate a plan of government.”); see also 1 William
Blackstone, Commentaries *61, *87 (George Sharswood ed.,
1893) (1765).

The traditional understanding that foreign nations
enjoyed “absolute independence” from federal jurisdiction,
see, e.g., Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch)
116, 137 (1812), gave way to a restrictive theory of immunity
as nations became more commercially interconnected, see
George K. Foster, When Commercial Meets Sovereign: A New
Paradigm for Applying the Foreign Sovereign Immunities Act
in Crossover Cases, 52 Hous. L. Rev. 361, 369–72 (2014).
Applying this restrictive theory, the Executive determined
case-by-case whether a foreign nation would receive sovereign

15
immunity from suits in U.S. courts. See Letter from Jack B.
Tate, Legal Adviser, Dep’t of State, to Philip B. Perlman,
Acting Att’y Gen. (May 19, 1952), reprinted in 26 Dep’t St.
Bull. 984, 984–85 (1952) (“Tate Letter”). But doing so proved
difficult diplomatically and politically problematic for two
reasons. First, the Executive’s determinations were
standardless and unpredictable. See Victory Transp., Inc. v.
Comisaria General de Abastecimientos y Transportes, 336
F.2d 354, 359 (2d Cir. 1964) (“[T]he ‘Tate letter’ offers no
guide-lines or criteria for differentiating between a sovereign’s
private and public acts.”). Second, “foreign expropriation of
American investment was a major foreign policy issue”
because “major properties were seized without compensation”
in countries like Cuba that went through critical regime
changes. See Mark B. Feldman, A Drafter’s Interpretation of
the FSIA, Am. Bar Ass’n Section of Int’l Law (Winter 2018),
https://www.foster.com/assets/htmldocuments/pdfs/ABA-
ACHL-Newsletter-Winter-2018.pdf. Victims of these
expropriations generally “had to rely on the State Department
to negotiate settlement with the foreign government,” but
changing regimes and charged relations often left the State
Department with no leverage and the victims no relief. See
Expert Witness Report and Opinion of Mark B. Feldman in
Supp. of Pl.’s Opp’n to Defs.’ Mot. Dismiss, In Re: Mezerhane
v. Republica Bolivariana de Venezuela, No. 1:11-cv-23983
(S.D. Fla. 2013) (“Feldman Report”), ECF No. 90-2.

So the Executive asked Congress to make the matter a
judicial determination, reasoning “that courts are better
equipped than the State Department to make immunity
decisions based on law rather than politics.” Adam S. Chilton
& Christopher A. Whytock, Foreign Sovereign Immunity and
Comparative Institutional Competence, 163 U. Pa. L. Rev.

16
411, 412 (2015). Congress agreed, adopting the FSIA to charge
judges, not diplomats, with applying the restrictive theory of
foreign immunity.10 See Samantar v. Yousuf, 560 U.S. 305, 313
(2010). Now, if a state, or its agency or instrumentality,
“expropriate[s] . . . property in violation of international law,”
“the state can expect to be held accountable for the
expropriation in U.S. courts.” See Feldman Report, supra.

B.

The FSIA provides that foreign states are immune from
the jurisdiction of American courts, subject only to exceptions
in previous international agreements and the FSIA itself. See
28 U.S.C. § 1604. “Foreign state” is defined to include a
political subdivision “or an agency or instrumentality of a
foreign state.” Id. § 1603(a) (emphasis added).11 PDVSA

10
See Foster, supra, at 371–72; see also Letter from
Robert S. Ingersoll, Deputy Sec’y of State, and Harold R.
Tyler, Jr., Deputy Att’y Gen., to Carl O. Albert, Speaker of the
House (Oct. 31, 1975), reprinted in H.R. Rep. No. 94-1487, at
6634 (1976) (arguing for legislation governing foreign
sovereign immunity “to facilitate and depoliticize litigation
against foreign states” by “codify[ing] and refin[ing] the
‘restrictive theory’ of sovereign immunity”).
11
An “agency or instrumentality of a foreign state” is
defined as “any entity”:
(1) which is a separate legal person, corporate or
otherwise, and
(2) which is an organ of a foreign state or
political subdivision thereof, or a majority of
whose shares or other ownership interest is
owned by a foreign state or political subdivision
thereof, and

17
invokes this definition to claim sovereign immunity as an
instrumentality of a foreign state. But if a foreign
instrumentality’s entitlement to sovereign immunity depends
on its shared identity with the “foreign state” itself, a natural
reading of the FSIA would suggest that a foreign
instrumentality shares the immunity of its sovereign owner. Cf.
Roger O’Keefe, The Restatement of Foreign Sovereign
Immunity: Tutto Il Mondo è Paese, 32 Eur. J. Int’l L. 1483,
1488–90 (2021) (considering how instrumentalities
“assimilate” to the legal personality of a foreign state under the
FSIA). Meaning a determination that a foreign state is excepted
from jurisdictional immunity under § 1605(a)(6) would also
apply to its instrumentalities.

The Supreme Court rejected this reading in Bancec. See
462 U.S. at 621. Although the Court acknowledged that
§ 1603(a) defines a “foreign state” to include instrumentalities,
id. at 620 n.7, it concluded “[t]he language and history of the
FSIA clearly establish that the Act was not intended to affect
the substantive law determining the liability of a foreign state
or instrumentality, or the attribution of liability among
instrumentalities of a foreign state,” id. at 620. So it directed
courts to apply a “presumption” of independent legal status
(and thus a separate sovereign immunity) to foreign
instrumentalities. Id. at 628.

(3) which is neither a citizen of a State of the
United States as defined in section 1332(c) and
(e) of this title, nor created under the laws of any
third country.
28 U.S.C. § 1603(b).

18
 That new presumption fused the law of corporations and
nations.12 The Court observed that foreign states had started
adopting the corporate practice of creating instrumentalities to
enjoy benefits associated with independent governance. Id. at
624. Without a presumption that an instrumentality’s assets
and liabilities stand separate from those of the sovereign, third
parties might worry that credit extended to an instrumentality
will be freely diverted to satisfy its sovereign’s debts. Id. at
625–26. And without “[d]ue respect for the actions taken by
foreign sovereigns and for principles of comity between
nations,” foreign sovereigns might leave opportunities to
advance their unique interests, frustrating the very point of
sovereign power. Id. at 626.13

But like any presumption, this one can be rebutted. The
Court “suggested that liability [for instrumentalities] would be
warranted, for example, ‘where a corporate entity is so
extensively controlled by [the state] that a relationship of
principal and agent is created,’ or where recognizing the state

12
At least one recent scholar has criticized this fusion,
emphasizing the differences between private and public
corporations when evaluating separate legal status. See
generally W. Mark C. Weidemaier, Piercing the (Sovereign)
Veil: The Role of Limited Liability in State-Owned Enterprises,
46 B.Y.U. L. Rev. 795 (2021).
13
As was common at the time, the Court also quoted a
House Report stating that 28 U.S.C. § 1610(b) would not allow
execution against the property of one agency or instrumentality
to satisfy the judgment of another—unless a court finds that
“property held by one agency is really the property of another.”
Bancec, 462 U.S. at 628 (quoting H.R. Rep. No. 94-1487, at
29–30).

19
and its agency or instrumentality as distinct entities ‘would
work fraud or injustice.’” Rubin v. Islamic Republic of Iran,
138 S. Ct. 816, 822 (2018) (quoting Bancec, 462 U.S. at 629–
30). And ever since, federal courts have coalesced around five
factors (termed “the Bancec factors”) to aid their analysis. Id.
at 823.14

As we did in Crystallex II, 932 F.3d at 141, we consider
the Bancec factors described in Rubin and 28 U.S.C. § 1610(g).
But we also take seriously the Supreme Court’s caution that
Bancec wrote no “mechanical formula” for disregarding
juridical separateness. Rubin, 138 S. Ct. at 822 (quoting
Bancec, 462 U.S. at 633). The test instead derives from a rough
analogy to American corporate law veil piercing,15 which is

14
Congress also noticed these factors and listed them in
an amendment to the FSIA to abrogate Bancec in disputes
about the property of state sponsors of terrorism. Rubin, 138 S.
Ct. at 823 (citing 28 U.S.C. § 1610(g)).
15
American corporations received staunch protections
through incorporation statutes passed throughout the
nineteenth century. See, e.g., An Act Relative to Incorporations
for Manufacturing Purposes, ch. 67, § 3, 1811 N.Y. Laws 350,
351. Courts met abuses of the corporate form by disregarding
these protections according to equitable considerations. See,
e.g., Booth v. Bunce, 33 N.Y. 139, 157 (1865) (If “corporate
bodies” are used “to cover up fraud,” they “are declared
nullities; they are a perfect dead letter; the law looks upon them
as if they had never been executed.”). When nations started
acting like corporations in their commercial relations,
governments began analyzing sovereign immunity claims
through this corporate lens. Cf. Chilton & Whytock, supra, at
451 (“[T]he prevailing legal standard did indeed systematically

20
itself “enveloped in the mists of metaphor.” Bancec, 462 U.S.
at 623 (quoting Berkey v. Third Ave. Ry. Co., 244 N.Y. 84, 94
(1926)). “Metaphors in law are to be narrowly watched, for
starting as devices to liberate thought, they end often by
enslaving it.” Id. (quoting Berkey, 244 N.Y. at 94).

C.

Having surveyed the “why” and “how” behind
instrumentality sovereignty, we turn to the “what”: the facts
that should be considered. The District Court evaluated the
actions of both the Guaidó and Maduro governments.
Appellants’ arguments against this approach mostly skip
references to the state and instead stress the word
“government,” a term absent from the relevant FSIA
provisions. Venezuela calls PDVSA’s relationship to the
Maduro Regime “[i]rrelevant,” Venezuela Reply Br. 12, and
insists we look only to the actions taken by the Guaidó
Government and the Ad Hoc Board. We disagree. Text,
tradition, and legislative aim all point to the sovereign nation
of Venezuela as the operative comparator for our alter-ego
analysis. So we must consider the actions of both governments.

1.

First, the text. The FSIA codifies foreign sovereign
immunity for a “foreign state,” 28 U.S.C. § 1604, which “on
its face indicates a body politic that governs a particular

influence the State Department’s immunity decisions:
immunity was less likely when the foreign state was a
corporate entity (and thus presumably engaged in commercial
activity).”). The Supreme Court followed that path in Bancec.

21
territory,” Samantar, 560 U.S. at 314.16 One prominent legal
dictionary defines “foreign state” as a “foreign country.”
Foreign State, Black’s Law Dictionary (11th ed. 2019). And
the definition has remained largely unchanged since before the
FSIA’s passage. See Foreign State, Black’s Law Dictionary
1578 (4th ed. 1968) (defining a “foreign state” as a “foreign
country or nation”). Both entries stress the body politic—the
country or nation—rather than the regime presently in power.
That aligns with the common understanding of statehood,
where governance is just one of several criteria used to define
a state. See James Crawford, The Creation of States in
International Law 45–46 (2d ed. 2006) (describing the
“classical criteria for statehood” as a defined territory, a
permanent population, an effective government, the capacity to
enter into relations with other States, and independence);
Restatement (Third) of Foreign Relations Law § 201 (1987)
(“[A] state is an entity that has a defined territory and a
permanent population, under the control of its own
government, and that engages in, or has the capacity to engage
in, formal relations with other such entities.”).

It also follows Bancec, where, despite the facts flowing
from the aftermath of the Cuban Revolution, the Supreme
Court never mentioned the Castro Regime. Instead, it framed
its analysis as determining whether the government
instrumentality of Cuba “may be held liable for actions taken
by the sovereign.” Bancec, 462 U.S. at 621. Strong evidence
that the relevant “government” in a Bancec analysis is the

16
The FSIA does not expressly define “foreign state,”
except to say that it includes “an agency or instrumentality of
a foreign state.” 28 U.S.C. § 1603(a).

22
foreign country’s sovereign, which transcends any
administrator.

2.

Second, tradition, which accepted that the “sovereign
power” does not change “whatever appearance the outward
form and administration of the government may put on.” 1
Blackstone, Commentaries *49. The Supreme Court has long
embraced this differentiation between government
representatives and a sovereign. Take The Sapphire, where
French officials sued in a United States court for damages
caused in a collision between a French and American ship. 78
U.S. (11 Wall.) 164, 167 (1870). Defendants sought dismissal,
arguing the collision happened under the reign of Napoleon III,
who had just been deposed. Id. at 166. That was the wrong
focus, the Court explained, because the “[t]he foreign state is
the true and real owner of its public vessels of war. . . . The . . .
party in power[] is but the agent and representative of the
national sovereignty. A change in such representative works no
change in the national sovereignty or its rights.” Id. at 168.

Or consider Guaranty Trust Co. of New York v. United
States, where the Soviet Union sued to recover a bank deposit
made sixteen years earlier by the Provisional Government of
Russia. 304 U.S. 126, 129 (1938). All agreed that the Soviet
Government had only recently been recognized by the United
States, making this action one of the first for which its
representatives could appear in U.S. courts on behalf of Russia.
Id. at 138 n.4. Not enough to toll a six-year statute of
limitations, said the Court, because, regardless of which
representatives are recognized, the “the rights of a sovereign
state are vested in the state rather than in any particular
government which may purport to represent it.” Id. at 137.

23
 More recently, in Samantar, the Supreme Court
confirmed the continuing importance of the representative-
sovereign distinction. There, the Court held an individual
foreign official is not entitled to sovereign immunity as a
“foreign state” under the FSIA. 560 U.S. at 308. A “state” is
“an entity that has a defined territory and population under the
control of a government and that engages in foreign relations.”
Id. at 314 (quoting Restatement (Second) of Foreign Relations
Law of the United States § 4 (1964–1965)). While the
government controls the state, the state is more than its
government. See id. (“[T]he [FSIA] establishes that ‘foreign
state’ has a broader meaning, by mandating the inclusion of the
state’s political subdivisions, agencies, and
instrumentalities.”).

Now, as before, “[r]ulers come and go; governments
end and forms of government change; but sovereignty
survives.” United States v. Curtiss–Wright Export Corp., 299
U.S. 304, 316 (1936).

3.

Third, legislative aim as informed by history. An
essential tool of statutory construction that uncovers 1) “how
the common law stood at the making of the act”; 2) “what the
mischief was, for which the common law did not provide”; and
3) “what remedy the [legislature] provided to cure this
mischief.” 1 Blackstone, Commentaries *87. All “to suppress
the mischief and advance the remedy.” Id. As recounted, the
FSIA was enacted against the common law of foreign
sovereign immunity that included Executive determinations.
But Congress understood the State Department to have “sought
and supported the elimination of its role with respect to claims
against foreign states and their agencies or instrumentalities.”

24
Samantar, 560 U.S. at 323 n.19. For this Court to hold that the
decisions about sovereign immunity from suit are once again
an Executive prerogative—whether by importing the act of
state doctrine, the political question doctrine, or some other
“doctrine”—would undermine the principal purpose of the
FSIA: “to transfer primary responsibility for deciding ‘claims
of foreign states to immunity’ from the State Department to the
courts.” Id. at 313 (quoting 28 U.S.C. § 1602).

D.

Knowing what facts to consider—the actions of both the
Guaidó and Maduro governments as the totality of the
sovereign conduct of Venezuela—similarly answers the
“when” issue. The parties present dueling interpretations of the
relevant timeframe for considering Venezuela’s actions. We
did not resolve the issue in Crystallex II. See 932 F.3d at 144.
On remand, the District Court thought it improper to consider
any date after the service of the writ of attachment but
acknowledged that consideration of historical events may be
necessary for alter-ego analysis. Crystallex Int’l Corp. v.
Bolivarian Republic of Venezuela, 2021 WL 129803, at *6 &
n.4 (D. Del. Jan. 14, 2021). PDVSA and Venezuela argue that
the relevant inquiry begins the moment of the filing of the

25
motion for a writ of attachment,17 while Creditors ask us to
consider instead the time of the injury.18

We again decline to take either path. As with the
commercial activity determination, “narrowing the temporal

17
Venezuela cites Dole Food Co. v. Patrickson, which
held that, for federal removal jurisdiction, “instrumentality
status is determined at the time of the filing of the complaint.”
538 U.S. 468, 480 (2003). But removal is a time-specific
inquiry, so there is no reason to assume that holding extends to
all other parts of the FSIA.
18
Creditors offer mostly out-of-circuit or unpublished
decisions for the notion that we look to the time the injury
occurred. None address the alter ego concept or thoroughly
compare competing time periods. See, e.g., Groden v. N&D
Transp. Co., 866 F.3d 22, 30 (1st Cir. 2017) (discussing the
“pertinent” time in an alter ego ERISA case as the time “when
the withdrawal liability arose”); Energy Marine Servs., Inc. v.
DB Mobility Logistics AG, No. 15-24-GMS, 2016 WL 284432,
at *1, *3 (D. Del. Jan. 22, 2016) (stating the moment of injury
is “the relevant time frame” with no justification); Trs. of Nat’l
Elevator Indus. Pension v. Lutyk, 140 F. Supp. 2d 447, 457
(E.D. Pa. 2001) (mentioning that “the relevant time period is
the time at which the corporation incurred liability” in a
corporate veil case), aff’d, 332 F.3d 188 (3d Cir. 2003) (no
discussion of time frame); J.M. Thompson Co. v. Doral Mfg.
Co., 324 S.E. 2d 909, 915 (N.C. Ct. App. 1985) (stating in a
corporate alter ego case, “it must be shown that control was
exercised at the time the acts complained of transpired”);
Moran v. Johns-Manville Sales Corp., 691 F.2d 811, 817 (6th
Cir. 1982) (“It is agency at the time of the tortious act, not at
the time of litigation, that determines the corporation’s

26
inquiry” for alter-ego analysis “unnecessarily leaves room for
manipulation.” See Crystallex II, 932 F.3d at 150. We would
invite fraud and injustice—the very concerns carefully
cautioned against in Bancec—by considering only how a state
acts after learning that its actions surrounding an
instrumentality are under scrutiny. Cf. Transamerica Leasing,
Inc. v. La Republica de Venezuela, 200 F.3d 843, 850–51 (D.C.
Cir. 2000) (considering, in alter-ego analysis, governmental
action that occurred before plaintiffs sought financial redress).
Little imagination is required: a state could quickly scale back
oversight, announce laudable (but long-away) reforms, pass
promises of new corporate independence, and perhaps
commission a blue-ribbon study panel or two. All while its
practices dating back to the injury show an alter ego
relationship. Nor is exclusive reliance on the time of injury a
satisfying approach. Cf. EM Ltd. v. Banco Central de la
República Argentina, 800 F.3d 78, 84–85, 92–94 (2d Cir.
2015) (considering, in alter-ego analysis, sovereign’s billion-
dollar borrowing from instrumentality after plaintiffs first
sought attachment). The conduct of the Castro Regime in
Bancec19 shows how a state determined to avoid creditors

liability.”); C M Corp. v. Oberer Dev. Co., 631 F.2d 536, 539
(7th Cir. 1980) (considering in a corporate veil context whether
there was “evidence that [companies] were shells or sham
corporations during the period when appellants and their
assignors were dealing with them”).
19
See Bancec, 462 U.S. at 615–16 (“Bancec was
dissolved and its capital was split between Banco Nacional and
‘the foreign trade enterprises or houses of the Ministry of
Foreign Trade’ . . . . All of Bancec’s rights, claims, and assets
‘peculiar to the banking business’ were vested in Banco
Nacional . . . . All of Bancec’s ‘trading functions’ were to be

27
might simply drop vulnerable assets into a new instrumentality
and thus “creat[e] juridical entities whenever the need arises.”
462 U.S. at 633.

We heed the charge of the Supreme Court drawing on
the “application of internationally recognized equitable
principles to avoid the injustice that would result from
permitting a foreign state to reap the benefits of our courts
while avoiding the obligations of international law.” Id. at 633–
34. And we conclude the alter-ego inquiry should consider all
relevant facts up to the time of the service of the writ of
attachment.

III.

Considering the totality of Venezuela’s control over
PDVSA, it is clear PDVSA is Venezuela’s alter ego. As in
Crystallex II, we draw from the “Bancec factors,” namely:

(1) the level of economic control by the
government; (2) whether the entity’s profits go
to the government; (3) the degree to which
government officials manage the entity or
otherwise have a hand in its daily affairs; (4)
whether the government is the real beneficiary of
the entity’s conduct; and (5) whether adherence

assumed by ‘the foreign trade enterprises or houses of the
Ministry of Foreign Trade.’ . . . [T]he Ministry of Foreign
Trade created Empresa. . . . Empresa was dissolved and
Bancec’s rights relating to foreign commerce in sugar were
assigned to Empresa Cubana Exportadora de Azucar y sus
Derivados (Cuba Zucar), a state trading company, which is
apparently still in existence.”) (citations omitted).

28
 to separate identities would entitle the foreign
state to benefits in United States courts while
avoiding its obligations.

Crystallex II, 932 F.3d at 141 (quoting Rubin, 138 S. Ct. at
823).

1. Economic Control

Venezuela exerts significant economic control over
PDVSA. Start with the Venezuelan Constitution: Article 12
provides that hydrocarbon deposits within Venezuelan
territory are government property, Article 302 reserves state
control over petroleum activity, and Article 303 enshrines that
the State must retain all shares in PDVSA. Crystallex II, 932
F.3d at 147. These statements of authority are not merely
aspirational; Venezuelan authorities have dictated PDVSA’s
sales practices and prices, inside Venezuela and abroad. Id.
From 2010 to 2016, PDVSA contributed around $77 billion to
Venezuelan allies, and in 2017, topped off the tank with the
announcement of a $1.2 billion payment on PDVSA bonds
along with plans to restructure PDVSA’s debt. Id. at 147–48.

Appellants argue drastic changes arrived in 2019, but as
the District Court explained, new structures did not alter
Venezuela’s significant control. In March 2019, Maduro
ordered the transfer of PDVSA’s European Office from Lisbon
to Moscow. Manuel Salvador Quevedo Fernández, a National
Guard Major General who was Minister of Housing and
Habitat before being appointed by Maduro as both oil minister
and president of PDVSA, announced the completion of the
European Office’s move that September. A month later, he

29
signed a commercial contract with an Indian corporation. In
May 2020, PDVSA on its website advised that, heeding
Maduro’s directive, it would increase the price of gasoline in
Venezuela. It also announced to owners of service stations that,
under Maduro’s Executive Order 4.090, it could rescind
service station licenses—which it promptly did.

Much the same has followed in the United States, where
the Guaidó Government holds direct access to PDVSA’s U.S.
bank accounts, manages (and offered to renegotiate) PDVSA’s
bond debt, sent PDVSA money earmarked for legal bills, and
considers PDVSA’s property “Venezuelan assets held abroad.”
App. 44–46.

True, the Guaidó Government has encouraged
PDVSA’s Ad Hoc Board to become more independent. But
given the Maduro Government’s continued extreme control of
PDVSA in Venezuela and abroad, and the Guaidó
Government’s substantial control of PDVSA’s American
operations, the facts reveal Venezuela’s significant economic
control of PDVSA through both rival governments.

2. Profits

Not all the Bancec factors are complicated inquires, and
here, just as we explained in Crystallex II, “[a]s PDVSA’s lone
shareholder, all profit ultimately runs to the Venezuelan
government.” 932 F.3d at 148. Profits, we noted, that PDVSA
paid back to Venezuela accompanied by taxes and royalties,
sometimes at an artificially high rate. Id. And the Guaidó
Government retains direct access to PDVSA’s U.S. bank

30
accounts, one of the assets PDVSA’s Ad Hoc Board has
regularly characterized as Venezuela’s.

3. Management

Venezuelan officials are vital to management of
PDVSA and maintain a strong presence in its daily affairs. We
explained that “President Maduro appoint[ed] PDVSA’s
president, directors, vice-presidents, and members of its
shareholder council.” Id. Appointments that included roles for
military leaders and high government officials, sharing office
space with the Ministry of Petroleum and Mining. Id. Even
lower-level employees faced threats of termination if they did
not attend Maduro’s political rallies and vote for his coalition
in elections. See id. Nothing has changed since 2019, with
Maduro calling on PDVSA workers to attack Guaidó, tasking
the Minister of Petroleum to restructure PDVSA and attend an
OPEC meeting on behalf of both Venezuela and PDVSA, and
making political announcements from PDVSA’s offices.

Similarly, as the Delaware District Court found, “Mr.
Guaidó [is empowered] to appoint and remove an Ad Hoc
Board of Directors to exercise rights as PDV Holding’s
shareholder, including appointing and removing board
members to PDV Holding, CITGO, and other affiliates.” App.
46–47 (citations omitted).20 “PDVSA’s Ad Hoc Board
acknowledges that it operates at the ‘directives’ of the Guaidó
Government.” App. 47. The National Assembly requires

20
Appellants argue the Guaidó Government has not
pursued the same corrupt management as its predecessors, a
point we need not refute. Because it is control, not corruption,
that we evaluate—the means and ways of management, not the
ends those actors pursue.

31
PDVSA to obtain prior approval for “national interest”
contracts, which PDVSA’s Ad Hoc Board has suggested could
cover all PDVSA’s agreements. App. 49. A theory consistent
with PDVSA’s practice of sending every contract with foreign
parties to the National Assembly for approval. All backed up
by the Guaidó Government’s domination of PDVSA’s legal
strategy, including sharing lawyers and directing when and
how PDVSA pays its debts.

The parties disagree about the degree of that control,
with PDVSA arguing it all falls short of complete day-to-day
operational command. But neither this Court nor the Supreme
Court has ever held absolute day-to-day control over
operations to be necessary or even the touchstone of the alter-
ego inquiry. We do not buck that trend, and instead look to all,
not one, of the facts. Together, they reveal a high degree of
governmental management of PDVSA’s affairs.

4. Beneficiaries

PDVSA exists to benefit Venezuela. PDVSA paid
Venezuela’s administrative fees for Venezuela’s arbitration
with Crystallex, and Venezuela gave PDVSA a number of
mining rights for no consideration. Crystallex II, 932 F.3d at
149. Venezuela committed PDVSA to sell oil to Caribbean and
Latin American allies at steep discounts to further Venezuela’s
policies, often with deferred payments to Venezuela, not
PDVSA. See id. at 147–49. Senior members of the Maduro
Regime used PDVSA’s aircraft for state purposes, a practice
that continued well after the 2019 election.

The Guaidó Government has not taken identical steps,
but it still views PDVSA as key to advancing its political goals.
The Delaware District Court found that PDVSA’s Ad Hoc

32
Board repeatedly described its mission as safeguarding its
assets for the country of Venezuela, and that “Mr. Guaidó and
his government regularly characterize PDVSA and its related
assets, such as CITGO, as assets of the State.” App. 50. As
Venezuela points out, the Guaidó Government’s declarations
in the Democracy Transition Statute and Presidential Decree
No. 3 have encouraged PDVSA to act economically rather than
“on behalf of the government at its own expense.” Venezuela
Opening Br. 37. But an instrumentality need not harm itself to
benefit the sovereign. Together with the actions of PDVSA in
Venezuela, this factor is satisfied.

5. Equity

Consider, finally, how Venezuela arrives in this Court.
The state owes on judgments but denies we have jurisdiction
to allow remedies aimed at PDVSA. All while “PDVSA, and
by extension Venezuela, derives significant benefits from the
U.S. judicial system.” Crystallex II, 932 F.3d at 149. PDVSA
enjoys the benefits and protections of United States law,
including 2020 bonds “backed by the common stock and
underlying assets of U.S.-based corporations,” with “the U.S.
legal system [a]s the backstop that gives substantial assurance
to investors who buy PDVSA’s debt.” Id. (internal citations
omitted). Observations that still ring true.

Venezuela responds that this rationale would demand an
alter-ego finding in every case. That concern is misplaced.
Access to the courts of the United States is more than an
incidental benefit for PDVSA and its three Delaware-
corporation subsidiaries. And we again note that our analysis
checks the entire record, not detached boxes.

33
 That all the Bancec factors weigh towards finding an
alter-ego relationship does not control our inquiry, but it is
more than mere coincidence. It reflects our long running
practice of “declin[ing] to adhere blindly to the corporate form
where doing so would cause such an injustice.” Bancec, 462
U.S. at 632. For those reasons, PDVSA remains the alter ego
of Venezuela and lacks sovereign immunity.21

IV.

PDVSA and Venezuela ask us to consider an issue
beyond the Delaware District Court’s denial of sovereign
immunity: the attachment of PDVSA’s shares in PDVH. But
Congress has only given the federal circuit courts jurisdiction
over “appeals from all final decisions of the district courts.” 28
U.S.C. § 1291. A “final decision” is “one which ends the
litigation on the merits and leaves nothing for the court to do
but execute the judgment.” Catlin v. United States, 324 U.S.
229, 233 (1945). Often, that means dissatisfied parties must
wait rather than appeal, even, as is common, when time is
money. “[I]ndeed, ‘the possibility that a ruling may be
erroneous and may impose additional litigation expense is not
sufficient to set aside the finality requirement imposed by
Congress.’” Weber v. McGrogan, 939 F.3d 232, 236 (3d Cir.

21
Even if we were to disregard the lessons we have
taken from the history of sovereign immunity and the FSIA
and look only to the actions of the Guaidó Government, the
result would not change. The District Court found the Guaidó
Government’s direction and control over PDVSA was
analogous to the direction and control of the Maduro
Government as identified by this Court in Crystallex II. That
finding was not clearly erroneous based on the actions of the
Guaidó Government we have detailed above.

34
2019) (quoting Richardson-Merrell, Inc. v. Koller, 472 U.S.
424, 436 (1985)).

Despite the clarity of 28 U.S.C. § 1291, we have long
allowed decisions denying sovereign immunity under the FSIA
to be immediately appealed under the “collateral order
doctrine.” See Fed. Ins. Co. v. Richard I. Rubin & Co., 12 F.3d
1270, 1282 (3d Cir. 1993) (walking through the Cohen factors
and joining other circuits in “decid[ing] that we have appellate
jurisdiction [over denials of sovereign immunity under the
FSIA] pursuant to the collateral order doctrine”).22

22
A conclusion reached by every other circuit to
consider the question. See Segni v. Com. Off. of Spain, 816 F.2d
344, 347 (7th Cir. 1987); Compania Mexicana De Aviacion,
S.A. v. U.S. Dist. Court for Cent. Dist. of Cal., 859 F.2d 1354,
1358 (9th Cir. 1988) (per curiam); Foremost-McKesson, Inc.
v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990);
Stena Rederi AB v. Comision de Contratos, 923 F.2d 380, 385
(5th Cir. 1991); Eckert Int’l, Inc. v. Gov’t of Sovereign
Democratic Republic of Fiji, 32 F.3d 77, 79 (4th Cir. 1994);
Honduras Aircraft Registry, Ltd. v. Gov’t of Honduras, 129
F.3d 543, 545 (11th Cir.1997); Rein v. Socialist People’s
Libyan Arab Jamahiriya, 162 F.3d 748, 755–56 (2d Cir. 1998);
Southway v. Cent. Bank of Nigeria, 198 F.3d 1210, 1214 (10th
Cir. 1999); Ungar v. Palestine Liberation Org., 402 F.3d 274,
293 (1st Cir. 2005); O’Bryan v. Holy See, 556 F.3d 361, 372
(6th Cir. 2009). The Eighth Circuit does not appear to have
directly addressed this point, although in passing seems to
agree. See BP Chems. Ltd. v. Jiangsu SOPO Corp. (Grp.), 420
F.3d 810, 818 (8th Cir. 2005).
Under Cohen’s test, concluding an appeal of a denial of
sovereign immunity is immediately appealable makes sense. A

35
 Appellants ask us to take our jurisdiction even farther
from the text of § 1291 and consider the propriety of
attachment under the Federal Rules using “pendent appellate

non-final order is reviewable under the collateral order
doctrine if it: 1) conclusively determines the disputed issue; 2)
resolves an important issue separate from the merits of the
action; and 3) would be effectively unreviewable on appeal
from the final judgment. See Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100, 105 (2009); Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541 (1949). Denials of sovereign immunity fit
the bill. They conclusively determine whether a party is subject
to continuing litigation, but are distinct from the merits. And
reviewing a denial after a final judgment is of no help to the
sovereign. All similar to denials of qualified immunity and
Eleventh Amendment immunity the Supreme Court has held
are immediately appealable under the collateral order doctrine.
See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Puerto
Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 141 (1993).
Still, concerns remain, and the Supreme Court has
“described the conditions for collateral order appeal as
stringent.” Digital Equip. Corp. v. Desktop Direct, Inc., 511
U.S. 863, 868 (1994). The doctrine as announced through
Cohen is an example of “the displacement of apparently
controlling, nonjudicial, primary texts.” Mitchel de S.-O.-l’E.
Lasser, “Lit. Theory” Put to the Test: A Comparative Literary
Analysis of American Judicial Tests and French Judicial
Discourse, 111 Harv. L. Rev. 689, 702 (1998). And the trend
has only become trendier given the “textualization of
precedent,” the practice of treating judicial opinions like
statutes. See Peter M. Tiersma, The Textualization of
Precedent, 82 Notre Dame L. Rev. 1187, 1188 (2007).

36
jurisdiction.” But the collateral order doctrine is already an
expansion of § 1291, and pendent appellate jurisdiction further
“drift[s] away from the statutory instructions Congress has
given to control the timing of appellate proceedings.” Swint v.
Chambers Cnty. Comm’n, 514 U.S. 35, 45 (1995). As the Court
explained, the “procedure Congress ordered” for adding to “the
list of orders appealable on an interlocutory basis” “is not
expansion by court decision, but by rulemaking under § 2072”
of the Rules Enabling Act. Id. at 48. Indeed, the unanimous
Court declined to “definitively or preemptively settle . . .
whether or when it may be proper for a court of appeals, with
jurisdiction over one ruling, to review, conjunctively, related
rulings that are not themselves independently appealable.” Id.
at 50–51. Meaning the Court “reserved the very existence of”
pendent appellate jurisdiction. Stephen I. Vladeck, Pendent
Appellate Bootstrapping, 16 Green Bag 2d 199, 205 (2013).

Heeding that warning, in the years after Swint, this
Court has exercised pendent appellate jurisdiction in only two
narrow circumstances: 1) when an otherwise non-appealable
order is “inextricably intertwined” with an appealable order,
and 2) when “necessary to ensure meaningful review of the
appealable order.” E.I. DuPont de Nemours & Co. v. Rhone
Poulenc Fiber and Resin Intermediates, S.A.S., 269 F.3d 187,
203 (3d Cir. 2001). Orders are “inextricably intertwined” “only
when the appealable issue cannot be resolved without
reference to the otherwise unappealable issue.” Reinig v. RBS
Citizens, N.A., 912 F.3d 115, 130 (3d Cir. 2018) (citations and
quotation marks omitted). That “the two orders arise out of the
same factual matrix” is insufficient, “even if considering the
orders together may be encouraged under considerations of
efficiency.” Id. (citation and quotation marks omitted). The
question is whether the appealable order can be “dispose[d]

37
of . . . without venturing into otherwise nonreviewable
matters.” Id. at 131 (citation omitted). If so, we “have no
need—and therefore no power—to examine the
[nonreviewable] order.” Id. (citation omitted).

Venezuela argues not only that the immunity and
attachment issues are “inextricably intertwined,” but that they
are “coextensive.” Venezuela Opening Br. 44. Because the
District Court applied the Bancec common law alter-ego test
to the immunity inquiry, Venezuela says, “sufficient overlap in
the facts relevant to both the appealable and nonappealable
issues” warrants review of the attachment issue now.
Venezuela Opening Br. 44–45 (citation omitted). We disagree.
The immunity inquiry used the Bancec factors to determine
whether a state exercises such extensive control over an
instrumentality that it may be considered an “alter ego” of the
state. The attachment inquiry invoked Bancec to evaluate
whether PDVSA’s property can be attached to pay out a
judgment. Resolution of the immunity issue does not dictate
the outcome of the attachment issue. So we will not wade into
the attachment waters, mindful that “loosely allowing pendent
appellate jurisdiction would encourage parties to
parlay . . . collateral orders into multi-issue interlocutory
appeal tickets.” Swint, 514 U.S. at 49–50. Even if we could
consider the attachment issue, we would decline to do so in our
discretion. See United States v. Spears, 859 F.2d 284, 287 (3d
Cir. 1988) (“[O]nce we have taken jurisdiction over one issue
in a case, we may, in our discretion, consider otherwise
nonappealable issues in the case as well, where there is
sufficient overlap in the facts relevant to [the appealable and
nonappealable] issues to warrant our exercising plenary
authority over [the] appeal.” (quoting San Filippo v. United
States Tr. Co., 737 F.2d 246, 255 (2d Cir. 1984))).

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 ***

The District Court did not clearly err in its factual
determinations and did not legally err in its application of the
Bancec factors. For the second time in five years, we conclude
that PDVSA is the alter ego of Venezuela, and we will affirm
the District Court’s denial of sovereign immunity to PDVSA.

39