Republic of Ecuador v. for the Issuance of a Subpoena Under 28 U.S.C. § 1782(A)

FILED
United States Court of Appeals
Tenth Circuit
November 13, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
IN RE: APPLICATION OF THE
REPUBLIC OF ECUADOR; DIEGO
GARCIA CARRION, the Attorney
General of the Republic of Ecuador, No. 12-1402
Petitioners - Appellees,
v.
For the Issuance of a Subpoena Under
28 U.S.C. § 1782(a) for the Taking of
a Deposition of and the Production of
Documents by BJORN BJORKMAN
for use in a foreign proceeding,
Respondent - Appellant.
-----------------------
CHEVRON CORPORATION,
Intervenor - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 11-CV–01470-WYD-MEH)
Theodore J. Boutrous Jr. of Gibson, Dunn & Crutcher, L.L.P., Los Angeles,
California, (Ethan D. Dettmer of Gibson, Dunn & Crutcher, L.L.P, San Francisco,
California and Robert C. Blume of Gibson, Dunn & Crutcher, L.L.P., Denver,
Colorado, with him on the briefs), for Respondent - Appellant and Intervenor
Appellant.
Gene C. Schaerr (and Eric W. Bloom of Winston & Strawn, L.L.P., on the brief),
Washington, D.C., for Petitioners - Appellees.
Before KELLY, McKAY, and MATHESON, Circuit Judges.
KELLY, Circuit Judge.
Intervenor-Appellant Chevron Corporation appeals from a district court
order granting a motion to compel production of documents pursuant to subpoenas
issued under 28 U.S.C. § 1782. Section 1782 allows for discovery of documents
to be used in a foreign proceeding. Petitioners-Appellees, the Republic of
Ecuador and its Attorney General, Dr. Diego García Carrión (collectively, “the
Republic”) sought the discovery to defend an $18.2 billion judgment against
Chevron by an Ecuadorian court. Chevron is seeking relief from that judgment
pursuant to investment treaty arbitration under United Nations’ rules. Our
jurisdiction arises under 28 U.S.C. § 1291, and we affirm the district court’s
order.
Background
Since the early 1990s, Chevron and its predecessor company, Texaco, Inc., 1
1
Chevron merged with Texaco in 2001 and assumed liability for its
operations. Republic of Ecuador v. Chevron Corp., 638 F.3d 384, 388 n.1, 389
n.3 (2d Cir. 2011).
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have defended litigation concerning Texaco’s operation in Ecuador and the
environmental contamination it allegedly produced. This litigation started in the
Southern District of New York but eventually found its way to the courts of Lago
Agrio, Ecuador. (For a detailed description of the New York litigation, see
Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir. 2002)). In February 2011, the
court in Lago Agrio entered an $18.2 billion judgment against Chevron, currently
on appeal.
Prior to the Lago Agrio judgment, in September 2009, Chevron commenced
arbitration proceedings against the Republic under the U.S.–Ecuador Bilateral
Investment Treaty, pursuant to the rules of the United Nations Commission on
International Trade Law. Chevron invoked this procedure to stop the alleged
“due process, fair treatment, and international-law rights” violations it allegedly
suffered at the hands of Ecuadorian courts. Aplt. Br. 12. In February 2011,
immediately following the Lago Agrio judgment, the arbitral tribunal ordered that
the Republic stay all efforts to enforce the Lago Agrio judgment, pending further
order of the tribunal.
This is where the underlying litigation currently stands. However, gearing
up for arbitration, both sides have filed numerous 28 U.S.C. § 1782 applications
in district courts throughout the United States seeking discovery of evidence for
use in a foreign proceeding. In June 2011, the Republic filed a § 1782 application
in the District of Colorado seeking “discovery from Bjorn Bjorkman to aid the
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Republic in defending the validity of the Lago Agrio judgment.” I Jt. App. 42.
The Republic alleged that Mr. Bjorkman served as one of Chevron’s chief experts
and that the Ecuadorian court explicitly relied on his opinions. Id. at 42-43. Mr.
Bjorkman and Chevron, as an interested party, responded challenging discovery,
and the district court referred the Republic’s application to a magistrate judge.
During the Lago Agrio trial, Chevron retained Mr. Bjorkman, “an ecologist
specializing in ecological and human health risk assessments, site investigations,
and biological and biodiversity investigations.” Aplt. Br. 15. In this capacity,
Mr. Bjorkman prepared and received documents and communications “created in
anticipation of litigation with the intent that they would be kept confidential.” Id.
at 15-16. These documents and communications came from a variety of sources
in Chevron’s litigation team, including “lawyers, in-house scientists, consultants,
and expert witnesses.” Id. at 17. In the instant action, Chevron argued before the
magistrate judge that the 2010 revisions to Fed. R. Civ. P. 26 brought materials
prepared by or provided to Mr. Bjorkman under the protection of the work-
product doctrine.
In August 2011, the magistrate judge granted the Republic’s application,
rejecting Chevron’s argument and noting that Rule 26 “does not preclude the
disclosure of information constituting the basis for a report, even though prepared
for use in trial.” I Jt. App. 21. The district court adopted and affirmed the
magistrate’s order. Pursuant to this order, Chevron produced “all of the facts and
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data [Mr. Bjorkman] considered in forming his expert opinions.” Aplt. Br. 2.
However, Chevron withheld thousands of documents that it believed fell under
Rule 26’s work-product doctrine. Claiming this violated the discovery order, the
Republic filed a motion to compel further production. In January 2012, the
magistrate judge partially granted the Republic’s motion. Relevant to this appeal,
the magistrate judge held that:
(1) Chevron may properly withhold drafts of Mr.
Bjorkman’s expert reports and disclosures, in whatever
form, under Rule 26(b)(4)(B);
(2) Chevron may properly withhold documents containing
communications between Mr. Bjorkman and Chevron’s
attorneys under Rule 26(b)(4)(C); however, Chevron may
not withhold communications between Mr. Bjorkman and
non-attorneys; and
(3) Rule 26(b)(3) did not provide work-product protection
to all documents in the hands of a reporting expert, only
those documents specifically covered by Rules 26(b)(4)(B)
and (C) were so protected.
Republic of Ecuador v. Bjorkman, No. 11-cv-01470, 2012 WL 12755, at *4–6 (D.
Colo. Jan. 4, 2012); I Jt. App. 28-31. Specifically, the magistrate judge held that
the intention of Rule 26 is to “protect the mental impressions and legal theories of
a party’s attorney, not its expert.” Id. at *6. With that premise, the magistrate
judge concluded that Chevron “may not withhold any documents or information
based upon the ‘work product doctrine’ set forth in Rule 26(b)(3), except those
specifically protected by Rules 26(b)(4)(B) and (C).” Id. On October 4, 2012,
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the district court affirmed and adopted the magistrate judge’s recommendation in
full. I Jt. App. 35. Mr. Bjorkman and Chevron timely appealed the district
court’s October 4, 2012 order to this court.
Thereafter, Chevron sought to stay discovery pending review by this court.
The district court denied this request and ordered Chevron to produce all
documents subject to the October 4, 2012 order not yet produced. On the parties’
motion, the magistrate judge entered a stipulated protective order, limiting the
Republic’s use of materials received from Mr. Bjorkman to “conducting the
Bilateral Investment Treaty Arbitration.” I Jt. App. 36. While this appeal was
pending, the Republic filed a second motion to compel, alleging that Chevron
continued to improperly withhold documents that fell under the October 4, 2012
order. The magistrate judge issued two more orders, in January and April 2013,
clarifying the scope of the October 4, 2012 order and compelling further
production. See Republic of Ecuador v. Bjorkman, No. 11-cv-01470, 2013 WL
50430 (D. Colo. Jan. 3, 2013). Chevron never objected to the January and April
2013 orders under Fed. R. Civ. P. 72, and the district court never adopted them.
Discussion
I. Jurisdiction
Although the parties did not challenge this court’s jurisdiction, we raised
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the issue sua sponte and have the benefit of supplemental briefing. See Smith v.
Rail Link, Inc., 697 F.3d 1304, 1312-13 (10th Cir. 2012). Absent certain
exceptions, “federal appellate courts have jurisdiction solely over appeals from
final decisions of the district courts of the United States.” Rekstad v. First Bank
System, Inc., 238 F.3d 1259, 1261 (10th Cir. 2001) (internal quotation ommitted).
A decision is final if it “ends the litigation on the merits and leaves nothing for
the court to do but execute the judgment.” W. Energy Alliance, 709 F.3d at 1047
(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)). While the
district court’s October 4, 2012 order compelling the discovery at issue appears
on its face “final,” the magistrate judge’s January and April 2013 orders
compelling further discovery call its finality into question.
Initially we note that in a § 1782 proceeding, there is nothing to be done
“on the merits.” Section 1782 empowers a district court to order a person
residing within its district to “give his testimony or statement or to produce a
document or other thing for use in a proceeding in a foreign or international
tribunal.” 28 U.S.C. § 1782. The only issue before the district court is discovery;
the underlying litigation rests before a foreign tribunal. See Bayer AG v.
Betachem, Inc., 173 F.3d 188, 189 n.1 (3d Cir. 1999).
In Phillips v. Beierwaltes, this court stated without qualification that § 1782
“orders are considered final and appealable to this court.” 466 F.3d 1217, 1220
(10th Cir. 2006). However, we were not faced with the circumstances we face
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here—a § 1782 order by a district court followed by additional orders by a
magistrate judge concerning the same § 1782 application.
The Republic argues that a § 1782 order is not a “final decision” so long as
“further proceedings [are] still underway in the district court.” Aplee. Supp. Br.
7. However, the cases it cites do not hold that a district court’s § 1782 order
cannot be “final” if subject to ongoing dispute about its coverage and scope
before a magistrate judge. The Ninth Circuit, in In re Premises Located at 840
140th Ave. NE, noted that a § 1782 order is final “[o]nce the district court has
ruled on the parties’ motions concerning the evidentiary requests.” 634 F.3d at
566. Here, once the district court affirmatively decided the proper scope of
discovery under the Republic’s application, it disposed of all “evidentiary
requests.” 2 Moreover, the Seventh Circuit stated in Heraeus Kulzer, GmbH v.
Biomet, Inc., that, in the context of a § 1782 application, “when no further
proceedings are contemplated, the court’s last order, even if it is a discovery
order, is an appealable final order.” 633 F.3d 591, 593 (7th Cir. 2011). In this
case, the district court’s “last order” was its October 4, 2012 order. The district
court never adopted the magistrate judge’s January and April 2013 orders as its
2
The district court decided the proper scope of discovery in its October 4,
2012 order by adopting the magistrate judge’s January 2012 recommendation that
only documents protected by Rules 26(b)(4)(B) and (C) were privileged. The
magistrate judge’s January and April 2013 orders merely clarified the scope of the
district court’s order and ordered Chevron to produce additional documents
thereunder. Supp. App. 20. This appeal hinges on the discovery addressed in the
October 4, 2012 order.
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own; consequently, neither of those orders are “final decisions of the district
court[],” appealable to this court. 28 U.S.C. § 1291; see Phillips, 466 F.3d at
1222 (holding that a magistrate judge’s § 1782 discover order is not appealable
unless and until the district court adopts it). The district court’s October 4, 2012
order is thus the last definitive word and a “final decision” under 28 U.S.C. §
1291. We proceed to the merits.
II. Rule 26
We review de novo the district court’s interpretation of the Federal Rules
of Civil Procedure. Esposito v. United States, 368 F.3d 1271, 1275 (10th Cir.
2004).
Chevron argues that the 2010 revisions to the Federal Rules caused a sea
change in the discoverability of documents held by experts. It argues that the
Rule 26(b)(3)(A)’s “by or for another party or its representative” language
protects trial preparation materials prepared by or provided to a testifying expert.
Aplt. Br. 25. Further, it argues that the amendment to Rule 26(a)(2)(B)(ii)’s
reporting standard was intended to make clear that reporting experts are protected
by the work-product doctrine. Aplt. Br. at 26-29. Finally, it argues that the two
limited protections of Rules 26(b)(4)(B) and (C) are not the exclusive protections
for expert materials but merely “examples of the broader protection provided by
Rule 26(b)(3)(A).” Aplt. Br. at 21. We disagree that the 2010 amendments
produced such changes.
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As with any exercise in statutory or rule interpretation, we start with the
plain language of the text itself. United States v. Ceballos-Martinez, 371 F.3d
713, 716 (10th Cir. 2004). Plain language does not require us, however, to “wear
blinders to the context in which a word or phrase or sentence is used.” Id.
Rather, we must interpret a “choice of words in the context that [Congress] chose
to use.” Id. Because Chevron relies on the change from one set of Rules to the
next, we look to the Advisory Committee’s comments to place the 2010 revisions
in context. See Esposito, 368 F.3d at 1275 (noting that the Advisory Committee’s
comments are entitled to weight in determining congressional purpose).
We look first to the Rules themselves. Rule 26(b)(3)(A) addresses the
work-product doctrine:
(A) Documents and Tangible Things. Ordinarily, a party
may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for
another party or its representative (including the other
party’s attorney, consultant, surety, indemnitor, insurer, or
agent).
Fed. R. Civ. P. 26(b)(3)(A). Whether this extends to a party’s expert is the
central issue of this appeal. However, other portions of Rule 26 make clear that
some forms of expert materials are not immune to discovery. Rule 26(a), which
provides for mandatory disclosures, requires a party to disclose the identity of any
expert it intends to call at trial and to also provide:
(B) . . . a written report . . . [that] must contain: . . . (ii) the
facts or data considered by the witness in forming [its
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opinion] . . . .
Fed. R. Civ. P. 26(a)(2)(B)(ii).
Finally, Rule 26(b)(4) makes clear that some forms of expert materials are
exempt from Rule 26(a)(2)’s mandatory disclosures:
(B) Trial-Preparation Protection for Draft Reports or
Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of
any report or disclosure required under Rule 26(a)(2) . . . .
(C) Trial-Preparation Protection for Communications
Between a Party’s Attorney and Expert Witness. Rules
26(b)(3)(A) and (B) protect communications between the
party’s attorney and any witness required to provide a
report under Rule 26(a)(2)(B) . . . .
Fed. R. Civ. P. 26(b)(4)(B) & (C). Rule 26(b)(4)(C) goes on to list three narrow
exceptions to its coverage. Fed. R. Civ. P. 26(b)(4)(C)(i)–(iii).
A. Rule 26(b)(3)(A)
Chevron argues that the “by or for another party or its representative”
language of Rule 26(b)(3)(A) clearly includes materials prepared by or for an
expert witness in anticipation of litigation. Aplt. Br. 26. It argues that even
before 2010, there existed a “work product protection for expert witness
materials.” Id. We fail to see how the Rules or interpreting cases demonstrate
that expert materials are protected under Rule 26(b)(3)’s work-product doctrine.
First, the plain language of Rule 26(b)(3) does not clearly mandate the
result Chevron seeks. The phrase, “party or its representatives,” implies agency,
and each of the six listed examples connotes someone acting in either an agency
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or fiduciary capacity for the “party or its representative.” Clearly, agents of a
party or its representative, who stand in the legal shoes of the party, are entitled
to the same work-product protections as the party itself. See United States v.
Nobles, 422 U.S. 225, 238-39 (1975) (“It is therefore necessary that the [work-
product] doctrine protect material prepared by agents for the attorney as well as
those prepared by the attorney himself.”). No showing has been made that an
expert would have capacity to act on behalf of a party in this case.
Second, the traditional understanding of the work-product doctrine militates
against concluding that expert materials are protected under Rule 26(b)(3). The
Supreme Court has stated that, “[a]t its core, the work-product doctrine shelters
the mental processes of the attorney, providing a privileged area within which he
can analyze and prepare his client’s case.” Nobles, 422 U.S. at 238. We have
said the same: “the work product doctrine is intended only to guard against
divulging the attorney’s strategies or legal impressions.” Resolution Trust Corp.
v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995). This understanding of the work-
product doctrine was “substantially incorporated in Federal Rule of Civil
Procedure 26(b)(3).” Upjohn Co. v. United States, 449 U.S. 383, 398 (1981).
Ever since the Supreme Court first articulated the work-product doctrine in
Hickman v. Taylor, the scope of discovery under Rule 26 has been understood to
preclude “inquiries into the files and the mental impressions of an attorney.” 329
U.S. 495, 510 (1947).
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Despite this focus on an attorney’s mental impressions, courts applying the
Hickman doctrine struggled with whether the mental impressions of non-attorneys
were also protected, particularly when litigants relied extensively on expert
opinions. See Fed. R. Civ. P. 26(b)(4) (1970 Comments). Many federal courts
held that materials produced by experts were protected under the work-product
doctrine. See, e.g., Carpenter-Trant Drilling Co. v. Magnolia Petroleum Corp., 23
F.R.D. 257, 262 (D. Neb. 1959); United States v. Certain Parcles of Land, 25
F.R.D. 192, 193 (N.D. Cal. 1959); United Air Lines, Inc. v. United States, 26
F.R.D. 213, 218 (D. Del. 1960); cf. United States v. McKay, 372 F.2d 174, 177
(5th Cir. 1967) (reversing the district court’s holding that an appraisal report was
protected as “the work product of the expert witness”).
In 1970, the Advisory Committee expressly rejected the holdings of these
cases. The 1970 revised Rules were the first to incorporate a version of the
Hickman work-product doctrine. The drafters noted that leaving the application
of the doctrine to caselaw had grown troublesome given the “confusion and
disagreement as to the scope of the Hickman work-product doctrine, particularly
whether it extends beyond work actually performed by lawyers.” Fed. R. Civ. P.
26(b)(3) (1970 Comments). By providing a rules-based work-product doctrine,
the Advisory Committee expressly “reject[ed] as ill-considered the decisions
which have sought to bring expert information within the work-product doctrine.”
Fed. R. Civ. P. 26(b)(4) (1970 Comments).
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The 1970 revisers made clear that Rule 26(b)(3)’s work-product doctrine
extends past attorneys to “a party or any representative acting on his behalf.”
Fed. R. Civ. P. 26(b)(3). (1970 Comments). At the same time, however, they
made plainly clear that this protection did not “bring expert information within
the work-product doctrine.” Fed. R. Civ. P. 26(b)(4) (1970 Comments). Chevron
does not point to contrary authority that refutes this original understanding of
Rule 26(b)(3).
B. Rules 26(a)(2)(B), 26(b)(4)(B) & (C)
Chevron next argues that the 2010 revisions to Rules 26(a)(2) and (b)(4)
restored broad work-product protection to expert materials. First, we address the
changes to Rule 26(a)(2). In 1993, Rules 26(a)(1)–(4) were added, placing on
each party the burden of producing “required disclosures” before being served
with formal discovery. Among these disclosures is the requirement that any
person retained or specially employed to provide expert testimony prepare a
written report detailing that testimony. Fed. R. Civ. P. 26(a)(2)(B). As codified
in 1993, Rule 26(a)(2) required that an expert’s report contain “the data or other
information considered by the witness in forming” his or her opinion. Fed. R.
Civ. P. 26(a)(2)(B)(ii) (1993 revised version). The drafters made the purpose of
this broadly formulated “other information” standard clear:
Given this obligation of disclosure, litigants should no
longer be able to argue that materials furnished to their
experts to be used in forming their opinions—whether or
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not relied upon by the expert—are privileged or otherwise
protected from disclosure when such persons are testifying
or being deposed.
Fed. R. Civ. P. 26(a)(2) (1993 Comments).
While the 1993 amendments eliminated perceived restrictions in expert
discovery, by 2010, the Advisory Committee believed that some courts had taken
Rule 26(a)(2)(B)(ii) too far, resulting in “undesirable effects.” Fed. R. Civ. P. 26
(2010 Comments). Some courts held that drafts of expert reports were
discoverable under Rule 26(a)(2)(B)(ii). See, e.g., Elm Grove Coal Co. v.
Director, O.W.C.P., 480 F.3d 278, 303 (4th Cir. 2007); Occulto v. Adamar of
N.J., Inc., 125 F.R.D. 611, 612 (D.N.J. 1989). Other courts held that
communications between an expert and a party’s attorney—even communications
containing the attorney’s mental impression—were discoverable under Rule
26(a)(2)(B)(ii). See, e.g., Elm Grove Coal Co., 480 F.3d at 303; In re Pioneer Hi-
Bred Intern., Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001); Intermedics, Inc. v.
Ventritex, Inc., 139 F.R.D. 384, 387 (N.D. Cal. 1991). These decisions,
according to the Advisory Committee, had the effect of raising the cost of
litigation and causing attorneys to be overly cautious in their interaction with
experts. Fed. R. Civ. P. 26 (2010 Comments).
Thus, in 2010 the Advisory Committee abandoned the “facts or other
information” standard for expert reporting and adopted the “facts or data”
standard found in the current version of the Rules. Fed. R. Civ. P. 26(a)(2)(B)(ii)
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(2010 revised version). Through this change, the Advisory Committee “intended
to alter the outcome in cases that have relied on the 1993 formulation in requiring
disclosure of all attorney–expert communications and draft reports.” Fed. R. Civ.
P. 26(a)(2)(B) (2010 Comments). In conjunction, the drafters amended Rule
26(b)(4) to “make this change explicit.” Id. They provided two exemptions to
disclosure: “Trial-Preparation Protection for Draft Reports or Disclosures” (Rule
26(b)(4)(B)); and “Trial-Preparation Protection for Communications Between a
Party’s Attorney and Expert Witness” (Rule 26(b)(4)(C)).
Contrary to Chevron’s assertion that these revisions were intended to have
wide-ranging effects, the revisions appear to alter only the outcome of cases
either allowing discovery of draft reports or attorney–expert communications.
Fed. R. Civ. P. 26 (2010 Comments). Chevron cannot point to any cases allowing
discovery of the type sought here that Rule 26(b)(4) silently overturned. Rather,
Chevron’s contention that Rules 26(b)(4)(B) and (C) are merely “examples” is
irreconcilable with the above stated intentions. Had the drafters believed that
expert materials were protected more broadly under Rule 26(b)(3) (something
they believed “ill-considered” in 1970), then they could have chosen to bolster the
protections afforded under that subdivision rather than providing two explicit
protections in subdivision (b)(4). Cf., Joseph v. Wiles, 223 F.3d 1155, 1161 (10th
Cir. 2006) (“[W]here Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally presumed
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that Congress acts intentionally and purposely in the disparate inclusion or
exclusion.”) (internal quotations omitted).
Other comments make clear that the protections of Rules 26(b)(4)(B) and
(C) are the exclusive protections afforded to expert trial-preparation materials.
“Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be
offered by the expert or the development, foundation, or basis of those opinions.”
Fed. R. Civ. P. 26(b)(4) (2010 Comments). If Rules 26(b)(4)(B) and (C) were not
exclusive, then such a statement would be unlikely.
Thus, the underlying purpose of the 2010 revision was to return the work-
product doctrine to its traditional understanding. The drafters articulated: “The
refocus of disclosure on ‘facts and data’ is meant to limit disclosure to material of
a factual nature by excluding theories or mental impressions of counsel.” Fed. R.
Civ. P. 26(a)(2)(B) (2010 Comments). Thus, Rule 26(b)(4), especially
subdivision (C), restores the core understanding that the work-product doctrine
solely protects the inner workings of an attorney’s mind. Though Chevron argues
that “facts or data” is to be construed narrowly to limit discovery to the bare-
bones factual information underlying an expert’s opinion, Aplt. Br. 29, the
comments reinforce the strong preference for broad discovery of expert materials:
“[T]he intention is that ‘facts or data’ be interpreted broadly to require disclosure
of any material considered by the expert, from whatever source, that contains
factual ingredients.” Fed. R. Civ. P. 26(a)(2)(B) (2010 Comments). This
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indifference as to the source of material refutes Chevron’s contention that
documents provided to an expert by a party are protected under Rule 26(b)(3).
And materials containing “factual ingredients” include far more than materials
made up solely of “facts or data.”
AFFIRMED. 3 We GRANT the Republic’s motion to file a supplemental
appendix.
3
Because we affirm on the merits, we have no need to reach the
Republic’s contention that Chevron is judicially estopped from raising the
arguments it advances here.
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