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Powerex Corp. v. Reliant Energy Servs.

Supreme Court of the United States

April 16, 2007, Argued ; June 18, 2007, Decided

No. 05-85


 [**2414]  [*226]  Justice Scalia delivered the opinion of the Court.

We granted certiorari to decide whether, under the Foreign Sovereign Immunities Act of 1976 (FSIA), petitioner is an "organ of a foreign state or political subdivision thereof." 28 U.S.C. § 1603(b)(2). When we granted certiorari, however, we asked the parties also to address whether the Ninth Circuit had appellate jurisdiction in light of 28 U.S.C. § 1447(d).

The procedural history of this case is long and complicated; we recount only what is necessary to resolve the writ before us. The State of California, along with some private and corporate citizens (hereinafter collectively referred to as plaintiffs-respondents), filed suits in California state courts against various companies in the California energy market,  [*227]  alleging that they had conspired to fix prices in violation of California law. Some of those defendants, in turn, filed cross-claims seeking indemnity from, inter alios, the Bonneville Power Administration (BPA), the Western Area Power Administration (WAPA), the British Columbia Hydro and [****7]  Power Authority (BC Hydro), and petitioner Powerex. (We shall sometimes refer to these entities collectively as the cross-defendants.) BPA and WAPA are agencies of the United States Government. BC Hydro is a crown corporation of the Canadian Province of British Columbia that is wholly owned by the Province and that all parties agree constitutes a "foreign state" for purposes of the FSIA. See § 1603. Petitioner, also a Canadian corporation, is a wholly owned subsidiary of BC Hydro.

The cross-defendants removed the entire case to federal court. BC Hydro and petitioner both relied on § 1441(d), which permits a "foreign state," as defined by the FSIA, see,§ 1603(a)  remove civil actions brought against it in state court. BPA and WAPA invoked § 1442(a), authorizing removal by federal agencies. Plaintiffs-respondents moved to remand, arguing that petitioner was not a foreign state, and that the cross-claims against BPA, WAPA, and BC Hydro were barred by sovereign immunity. Petitioner opposed remand on the ground that it was a foreign state under the FSIA; the other cross-defendants opposed remand on the ground that their sovereign immunity entitled them to be dismissed from the action [****8]  outright.

The District Court initially concluded (we assume correctly) that § 1442(a) entitled BPA and WAPA to remove the entire case and that BC Hydro was similarly entitled under § 1441(d). App. to Pet. for Cert. 20a. It thus believed that whether the case  [***119] should be remanded "hinge[d on its] jurisdictional authority to hear the removed claims, not whether the actions were properly removed in the first instance." Ibid.  The District Court held that petitioner did not qualify as a foreign sovereign under the FSIA. Id., at 33a-38a. It  [*228]  also decided that BC Hydro enjoyed sovereign immunity under the FSIA. Id., at 21a-33a. And it concluded that BPA [**2415]  and WAPA were immune from suit in state court, which the court believed deprived it of jurisdiction over the claims against those agencies. Id., at 38a-44a. Having reached these conclusions, the District Court remanded the entire case. Id., at 44a.

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551 U.S. 224 *; 127 S. Ct. 2411 **; 168 L. Ed. 2d 112 ***; 2007 U.S. LEXIS 7898 ****; 75 U.S.L.W. 4437; 2007-1 Trade Cas. (CCH) P75,746; 20 Fla. L. Weekly Fed. S 368



California v. NRG Energy Inc., 391 F.3d 1011, 2004 U.S. App. LEXIS 25167 (9th Cir. Cal., 2004)

Disposition: Vacated in part and remanded.


sovereign, subject-matter, electricity, entities, Plaintiffs-Respondents, cross-defendants, state-court, invoked

Civil Procedure, Removal, Postremoval Remands, Appellate Review, Appeals, Appellate Jurisdiction, General Overview, Motions for Remand, Jurisdictional Defects, Procedural Defects, Parties, Joinder of Parties, Governments, Legislation, Interpretation, Jurisdiction, Jurisdictional Sources, Statutory Sources