Don’t Cry for Argentina

It’s not every day that a sovereign nation files a petition for certiorari in the Supreme Court. This year, however, Argentina has filed multiple petitions, and another could be on the way. The South American nation is particularly eager to get the Court to review adverse rulings from the U.S. Court of Appeals for the Second Circuit, even if Argentine officials and their lawyers proclaim the nation will refuse to comply with adverse judgments from U.S. courts.

The underlying case arises out of Argentina’s 2001 default on its debt obligations. Most of the outstanding debt was restructured, but a few creditors refused to go along. They filed suit, seeking to enforce the terms upon which Argentina had originally issued its bonds.  The plaintiffs evaded the Foreign Sovereign Immunities Act (FSIA) and obtained an injunction that could effectively force Argentina to pay up by enjoining the payment of restructured debt without also making payments to holders of unrestructured debt.

In June, after the Second Circuit refused to throw out the injunction, Argentina filed a cert petition, despite the lack of a final order.  This petition is due to be conferenced at the end of the month. Meanwhile, proceedings in the Second Circuit continued and, in August, the Second Circuit rejected Argentina’s challenge to the injunction on the merits, so yet another cert petition could well be in the works. (Mark Weidemaier has more on that opinion here.)

Whether or not the underlying issues are cert worthy – and I’m skeptical on this score – it would seem that the most recent cert petition is premature. Why take a case on interlocutory review when there’s already a merits ruling that could be considered? And even if  there is a cert-worthy issue, I am not sure this is the best case.  If her past practice is any guide, Justice Sotomayor would likely have to recuse herself.  Justice Sotomayor has recused in other cases relating to Argentina’s debt, as she sat on a related case while still a Second Circuit Judge.

And then there’s Argentina’s pledge to ignore any ruling it does not like. During oral argument before the Second Circuit, Argentina’s lawyer said his client “would not voluntarily obey” an adverse decision, suggesting this was a reason the court should rule in its favor. The Second Circuit was undaunted, and affirmed the district court’s injunction. Why would the Supreme Court now grant a petition filed by a party that says it will only comply if it gets what it wants? It seems to a party should only invoke a federal court’s jurisdiction when it’s willing to be bound by the judgment. Although there may be outstanding questions of foreign sovereign immunity for the Court to address, Argentina may not be presenting the Court with the best case.