On Petition for Rehearing
Before ROBINSON, Chief Judge, WRIGHT and GINSBURG, Circuit Judges.Opinion for the Court filed by Circuit Judge GINSBURG.
Separate statement concurring in the denial of rehearing filed by Chief Judge SPOTTSWOOD W. ROBINSON, III, with whom Circuit Judge J. SKELLY WRIGHT joins.
GINSBURG, Circuit Judge:The petition for rehearing and the supporting brief of amicus curiae United States of America rest in considerable part on a misreading of the panel’s opinion. Appellee Interpol did not appear in the district court, nor did it appear before this court on appeal. When this court reviewed the district court’s order dismissing the complaint, therefore, the record contained no submission by Interpol. The panel opinion, however, states:
Our decision is based on the record as it now stands.... [W]e do not intend to foreclose any defense, jurisdictional or otherwise, Interpol itself or its Secretary General may raise predicated on material not before us.
At 932 n.13. There is accordingly no occasion for Interpol to seek a remand from this court “for the purpose of allowing it to prove that the factual allegations set forth in appellant’s complaint that are the basis of [the] finding of jurisdiction are untrue.” The panel opinion does not in any way foreclose Interpol from proving facts relevant to jurisdiction; the presentation Interpol proposes in its rehearing petition would thus be “consistent with [the panel’s] opinion.”
We further note that no question of an official or foreign sovereign immunity defense to Steinberg’s action was raised before the panel. The court decided only the threshold issue of in personam jurisdiction on the existing record. The opinion leaves no doubt that this court has not precluded Interpol and its Secretary General from raising in the district court “whatever defenses [they] may have to the claim in suit.” At 932.*
We regard as moot, in view of our disposition, Steinberg’s motion to strike Interpol’s petition for rehearing. Steinberg’s request for attorney’s fees is premature and may be addressed by the district court should Steinberg decide to raise the question there.