John G. Roberts, Jr.
We'll hear argument next in Case 16-534, Rubin versus the Islamic Republic of Iran. Mr. Perlin.
Asher Perlin
Mr. Chief Justice, and may it please the Court: In 2008, Congress
comprehensively overhauled the terrorism exception to foreign sovereign
immunity to close gaps that had for years allowed foreign terrorist
states to thumb their noses at U.S. judgments finding them liable for
acts of terrorism while their victims were drawn into a long, bitter,
and often futile search for scarce assets that would be subject to
execution under the exceedingly narrow commercial exception to foreign
sovereign immunity. The centerpiece of that legislation is Section
1610(g).
That provision provides that American terrorism victims can execute
their judgments upon the property of a foreign state that is subject --
against which a -- a judgment has been entered under 1605A, and it makes
available the property of the state's agencies and instrumentalities.
Ruth Bader Ginsburg
If -- if --
Stephen G. Breyer
Well, as provided in this section.
Asher Perlin
As provided in this section.
The question is what that -- what that provision means.
The Respondents would have the Court delete the three words between the
word "execution" and the words "as provided in this section." What it
actually says is that the property is subject to execution upon that
judgment as provided in this section.
Ruth Bader Ginsburg
We know what -- that -- that Congress wanted to do away with what they
call the Bancec factors, and this statute was written perfectly to do
just that. You say it does something more.
Asher Perlin
It has to do more, Your Honor.
Ruth Bader Ginsburg
And why does it have to? What the statute did is it made more assets
available because you didn't have to worry whether it was the state
itself, an instrumentality of the state, an agency.
The -- the property of any of those entities was available. So it swelled the assets that would be available.
But it didn't say anything, not a word, about immunity.
Asher Perlin
Well, there -- there's two questions there.
It doesn't say anything about immunity, but those are magic words.
It does say that the property is subject to execution.
Sonia Sotomayor
Magic words under (a) and (b).
Sonia Sotomayor
In 1610 in (a) and (b), Congress knew how directly to say property is
not or is subject, immune from attachment. But it used something very
different here. Rather, it says that property is "subject to attachment
as provided in this section." Those are two very distinct formulations.
Asher Perlin
They are different. Subsections (a) and (b) were part of the original Foreign Sovereign Immunity Act from 1976.
There were other amendments since then. If you look at subsection
(f)(1), which the President has waived, it says "shall be subject to
execution." The -- the Terrorism Risk Insurance Act, which is codified
as a note to subsection -- to Section 1610, also says shall be subject
to execution to -- to execution.
So the language -- when Congress sat down to write subsection (g), it
was looking at the other terrorism exceptions to execution immunity that
it had already passed, and those were (f) in TRIA, and it modeled (g)
after -- after those sections.
Stephen G. Breyer
Can they execute, your clients, on the embassy?
Stephen G. Breyer
On the uniform -- on the uniforms that the people in the embassy wear,
on -- on the papers that the ambassador keeps in his desk if, in fact,
you read "as provided in this section," the answer is no. If you read it
to include because it has to be commercial, all right? Under your
reading, where those words must mean something else, can't they do it?
Asher Perlin
They cannot.
Stephen G. Breyer
Why not?
Asher Perlin
Subsection -- Section 1609 says that Section 1610 -- execution under
1610 is subject to international agreements like the Vienna Convention
which would protect diplomatic property, and Section 1611 protects
military assets, certain central bank assets.
Asher Perlin
Congress, when they enacted 1610(g), they did not completely abrogate foreign sovereign immunity for terrorist states.
They wanted to provide a remedy for the victims, they wanted to punish
and deter the terrorist states, but at the same time, Congress
recognized that Iran and North Korea, Syria, Sudan, these are sovereign
states, and they're entitled to a bare minimum of sovereign immunity,
and Congress retained that bare minimum by protecting quintessentially
sovereign assets while making everything else subject to execution.
Samuel A. Alito, Jr.
What does "as provided in this section" mean? Am I right you think it incorporates only procedural requirements?
Asher Perlin
No, Your Honor there are a number of -- a number -- no, Your Honor.
A number of --
Samuel A. Alito, Jr.
What does it -- what does it mean?
Asher Perlin
It means, as provided -- the way to read it is it refers to the judgment that's entered under 1605A.
As provided in this section, it says, execution -- you can have
execution upon the property -- upon that judgment as provided in this
section. "As provided in this section" modifies the judgment, "upon that
judgment," and it -- and it refers to the section -- Section 1605A,
which is the only section mentioned in this sentence.
It's referring back to the section, 1605A, that was a couple lines
above in the same sentence. And what it says is that a judgment entered
-- that Section 1610(g), which provides sweeping remedies for terrorism
victims, is only applicable to those who hold judgments entered under
the statutory cause of action of 1605A.
It is not available to other plaintiffs holding terrorism judgments. It
also extends -- it also extends, "as provided in the section," extends
the remedies.
The remedies -- remember, the remedies of 1605A, capital A, are very novel, to say the least.
You -- you -- you don't have a private right of action anywhere else in
the Sovereign -- Foreign Sovereign Immunities Act. You don't have any
other provision that allows punitive damages against a sovereign state,
which is a sure sign that Congress was not concerned about affronting
the dignity of terrorist states. They allowed punitive damages.
They -- they expected those to be enforced.
They allowed a pre-judgment lien of lis pendens to attach to all
sovereign -- all of the state's property that is subject to execution
under 1610, that -- including property of any party that the plaintiff
identifies as being controlled by -- by that terrorist state.
Samuel A. Alito, Jr.
So "as provided in this section" is really superfluous, isn't it --
Samuel A. Alito, Jr.
-- under your interpretation?
Asher Perlin
It's not.
It refers -- well, it's -- it emphasizes the centrality of the 1605 judgment to this provision.
And it also -- there's -- there's no other way to read it.
If you read it as -- as the Respondents would, there's no -- there's no provision within 1610 that can pair with 1610.
They say that it must pair with another substantive provision of 1610. But nothing works.
Try to -- try to go through.
It says that -- 1610(g) says that the property of a foreign state is
subject to execution and the property of an agency or instrumentality.
Now, if this were only a veil-piercing mechanism, as the Respondents
claim, there's no reason to mention the property of the foreign state.
You don't need to pierce the veil to reach the property of the -- of the
judgment debtor terrorist state.
You just go straight for that property.
And if you have a judgment against the agency or instrumentality --
Sonia Sotomayor
I'm sorry.
I thought that the University of Chicago had raised an interesting
argument, that the definition of foreign state in the statute includes,
by definition, an agency or instrumentality of a foreign state, so that
the reference to foreign state that you're relying upon does include the
concept of piercing the corporate veil in its very definition.
Asher Perlin
Well, that would -- that would -- that itself would abrogate Bancec, the rationale that University --
Sonia Sotomayor
Well, that -- not quite, because what -- I mean, this provision deals
directly in aid of the plaintiffs in the Bancec case and in the others
that had found against plaintiffs. There are at least three cases where a
class of plaintiffs were found not to be in a sufficiently tied
relationship to the foreign state and the plaintiffs there couldn't
recover, so there was a real issue this was addressing, the fact that
there were subsidiaries and agencies of foreign state who had commercial
property, and it wasn't being made available to plaintiffs.
Asher Perlin
So the question would be to ask the Respondents why they don't mention those cases in their briefs.
We have maintained, consistently, that the property of the foreign
state, those words, are completely not just superfluous but misleading
if there -- if this is just a veil-piercing mechanism.
If it's veil-piercing mechanism --
Sonia Sotomayor
Why? It gave them what those three cases denied them.
It gives other plaintiffs with similar claims a lot -- access to a lot
of -- of property that they wouldn't have had under Bancec.
Asher Perlin
The provisions that allow execution upon the property of an agency or
instrumentality gives access to -- to the agency or instrumentality's
property.
Stephen G. Breyer
Well, give an example.
I mean, there's a famous example which you know about, the -- the
letter of Cyrus, saying to everybody throughout the Middle East that the
Jews are free and they can go back to Israel, Palestine, the temple,
and that letter exists and Persia -- the Persian letter, and Iran has
sent it around the world. Now, in your view, they have -- and people
have looked at it.
And if it comes to the United States, you can seize it.
Is that -- that's your view of it? Because if it is, of course, if
Congress knew about it, then they -- they might have had a general idea,
given the nature of the stuff in Chicago.
Stephen G. Breyer
I -- I would be surprised that they'd want to do that.
Asher Perlin
We -- you might be surprised, but Congress has addressed --
Stephen G. Breyer
Your view is, yes, you could seize it?
Asher Perlin
It would depend on -- yes, you could.
It -- Congress has addressed this very question, twice, in 22 U.S.C.
2459, Congress provided a very specific and limited immunity for
culturally significant objects being brought to the United -- culturally
significant objects being brought to the United States for display or
exhibition. There was a very specific immunity there that the -- that
somebody who wants to bring in that -- that property, those exhibits can
apply to the State Department in advance and receive a letter
immunizing those -- those assets from -- from judicial process. And --
and last year --
Ruth Bader Ginsburg
Did that -- did that exist in, what was it, 1939 --
Asher Perlin
It did not.
It did not.
Ruth Bader Ginsburg
-- when Chicago got this?
Asher Perlin
But Congress could have made that provision retroactive, and it didn't. And Congress --
Ruth Bader Ginsburg
But what about the provision that Congress did enact in -- and we've
been talking about (g) and so -- so this is subsection 3, refers to
nothing shall be construed to supersede the authority of a court to
prevent the impairment of an interest held by a person who is not liable
in the action. Why isn't the University of Chicago such a person?
They're certainly not liable in the action.
And they got this property when Iran was not listed as a terrorist state.
Ruth Bader Ginsburg
The Shah was in control, not the Ayatollah.
Asher Perlin
The university hasn't raised that as a defense.
And because Section 1610(g)(3) refers to a -- a party with an ownership
interest, not just a -- some other intangible interest -- and -- and
even to the extent that they do, that doesn't mean that the Court should
not be able to transfer title to a -- to whatever party would be ready
to -- to pay the price. And we think it would be Iran, by the way.
If -- if the Court would construe this statute as Congress, we think,
as we read it, Congress would finally -- I mean Iran would finally pay
attention to a judgment, and they would say, we're -- we're about to
lose our -- our -- our artifacts --
Ruth Bader Ginsburg
Well, what are the terms of that? The University of Chicago has had this since 1939.
Iran has never tried to take it back.
What are the terms of the lease?
Asher Perlin
They have -- it's not a lease.
It was a long-term loan for the -- for the study and cataloguing,
publishing, photographing, cleaning, of these -- of these artifacts. And
University of Chicago does not assert an ownership interest.
They -- they say that there -- in the briefs, they say they're
trustees, or they were entrusted -- they don't even call themselves
trustees even; they say they were entrusted with this.
Every -- they use language, but they never say we have a concrete right
in these -- in these assets. And if they do, the court can -- the
district court, when it orders the sale, it can make accommodation for
that.
It can say that whoever buys it -- and we would be -- we're -- my clients would be perfectly happy if --
Ruth Bader Ginsburg
The University of Chicago --
Asher Perlin
-- these artifacts remained with the University of Chicago.
Ruth Bader Ginsburg
-- is not interested in this property for the money -- for money.
It's interested in having these antiquities on display, to be researched, to be seen.
Asher Perlin
But it doesn't belong to them.
It's not theirs.
And whoever it belongs to can decide whether they're the best university to study it.
Ruth Bader Ginsburg
You're answering my question that, well, don't worry about University of Chicago, the district court can give them some money.
Asher Perlin
No, not money.
Not money.
The district court, if they have a right, to the extent that they have a
right to retain the -- the artifacts and continue their work with them,
the district court can say that the sale should be conducted subject to
the rights of the University of Chicago.
It doesn't -- it doesn't mean that it's all --
Ruth Bader Ginsburg
But what would those rights --
Asher Perlin
-- it's not all or nothing.
The property can be divided up.
Ruth Bader Ginsburg
-- be? Their rights have been from 1939 on they have this property.
Asher Perlin
Well, since 1980, they've had the property because Iran couldn't get it back, for a big part of that time.
And for a big part of the time before that, every now and then, Iran
was asking, when are you going to finish -- when are you going to finish
studying these things.
And -- and they were not very forthcoming. When this lawsuit was filed,
they moved into -- they expedited their study of the assets because
they realized that they might lose them.
And, now, again, University of Chicago is really an amicus here.
They don't -- they have no interest in these assets. They -- and to the extent that they do, the Court can protect that.
It -- it can protect that interest in a -- in a sale.
John G. Roberts, Jr.
Well, assuming you're right, does that mean, if you lose here, you think Iran will be able to repatriate the assets?
Asher Perlin
Absolutely.
There's nothing in their way.
They did.
They did.
We lost -- we lost in the district court, and there was another
collection of Iran -- Iran-owned assets, and on the eve of the -- the
argument in the court of appeals, they were shipped back to Iran after
the court had denied our -- our motion to stay, but -- but they were
shipped back to Iran.
And they --
Stephen G. Breyer
They have other things in the United States.
I mean, it seems to me so far, that the main difference between your
interpretation and the other side as a practical matter is that if
you're right, that private people will be able to take cultural assets
from Persia and sell them and ship them back to Iran, and if they're
right, you will have to limit your recovery to commercial objects
because that's what the other parts of the statute provide.
Stephen G. Breyer
Now -- now, that's not perhaps going to turn out to be relevant to the decision.
I grant you that.
But I -- I -- I -- it's something I'm -- I'm -- like to have in my mind.
Asher Perlin
Okay.
The -- the distinction under the foreign sovereign immunity -- let's put it this way.
They want to cabin us into Section 1610(a)(7), which is the commercial
use exception for property owned by the state. That provision, as the
Seventh Circuit held, requires not just use for a commercial activity,
but it has to be used by the foreign state.
And a number of courts of appeal have held, as did the Seventh Circuit
and this Court did not accept review of this issue, that -- that it has
to be -- that the use must be by the foreign state itself, even though
that's not in the -- those words are not in the statute. But a number of
courts of appeal have looked at financial assets -- let's take the, you
know, proceeds of a -- of a commercial transaction between a state and
private parties that are proceeds that are held in an account, that are
intended for the foreign state, and the courts have said that's not
commercial use property.
Why? Not because it's the proceeds of a commercial transaction, but
because those proceeds have not yet been used by the foreign state for
commercial activity. They're just sitting in the account passively
waiting to be used, but they haven't been used yet, and the state can
say, we're going to put it in our general account --
Sonia Sotomayor
That just seems like --
Asher Perlin
-- in the Treasury.
Sonia Sotomayor
-- an issue Congress has to address.
Asher Perlin
Well, Congress --
Sonia Sotomayor
And those courts may well be wrong.
I don't know.
Asher Perlin
What I'm saying is that the practical difference between our
construction and the Respondents' construction is not antiquities.
It's all of these cases dealing with -- with passive bank accounts.
There's another case in California where there was a judgment obtained
by the Ministry of Defense of Iran against a defense contractor, and the
court said the money paid by the -- by the Ministry of Defense, that's
not commercial use property because it hasn't been used by Iran. There
-- there's -- there are countless cases like this, and this is the body
-- these are the -- these are the -- the cases that this provision is --
is -- or one group of cases this provision is intended to cover. It's
not intended to cover antiquities, and I don't think there's going to be
a -- a mad rush to grab antiquities.
Stephen G. Breyer
That's what you're doing yourself in this case; that's what it is, isn't it?
Asher Perlin
That's all that they've left.
That's all -- this -- this proceeding below began in 2003.
The -- the terror attack in this case was in 1997.
My clients have been waiting 20 years to enforce their judgment against Iran.
Iran does not pay judgments. You know -- you know, it's not Argentina, where they can't afford to pay the judgment.
They just don't.
And they don't -- they don't care what the American courts say. And
Congress finally said enough is enough, and -- and they said there's
punitive damages and we're going to waive res judicata, we're going to
waive collateral estoppel, we're going to waive statutes of limitations;
you can go back and convert your old judgments into a new 1605A
judgment and use -- and use that tool under 1610(g), under our provision
to enforce it. Congress said enough is enough.
We want these judgments enforced.
And it's not about antiquities.
That's -- that's -- that's what the Respondents are writing about, but
they will not tell you what the -- what the property of a foreign state
applies to.
Ruth Bader Ginsburg
Is there anything --
Asher Perlin
The United States doesn't --
Ruth Bader Ginsburg
Is there anything -- is there anything in the legislative record that
shows that Congress was intending to do anything other than dispense
with the Bancec?
Asher Perlin
Yes, it says that it applies -- that the provision will apply to any
property in which the foreign state has a beneficial ownership.
That any property in which the foreign state has a beneficial ownership is subject to execution of that judgment.
It says the -- the -- the sponsors -- the Senate sponsors said that it
is intended to remove many of the barriers to execution of a judgment.
And according to Respondents, it only addresses one of those barriers.
It says that the -- the right to the -- to the property is subject to a
simple ownership test.
A simple ownership test.
When you start piercing veils and layers of veils, that is not a simple ownership test.
That might have been intended to be included in the -- but that's not
what was being addressed. And, finally, what the -- what the statute
does say, the legislative history -- the House report says that
"although it subjects to execution any property in which the state has a
beneficial -- beneficial interest, it does not extend to diplomatic
property." So once Congress is excluding specifically that narrow class
of quintessentially sovereign property, diplomatic property, you know
that it's extending to -- it covers everything else.
There's no reason -- if it didn't cover commercial use property or non-
-- sorry, non-commercial use property, there's no reason to
specifically mention diplomatic property because, obviously, that's
going to be included in non-commercial. This applies to everything.
Everything except diplomatic, military, and certain central bank assets.
The idea that -- that Congress would be concerned with affronting the
dignity of a state sponsor of terrorism and would extend protection to
their non-commercial assets for that reason, to avoid an affront to
their dignity, is just preposterous.
Ruth Bader Ginsburg
Do you have any other section that dispenses with the sovereign
immunity then that doesn't mention -- doesn't say anything that refers
to immunity?
Asher Perlin
Well, I mentioned Section 1610(f)(1).
It says that the property shall be subject to execution.
And the TRIA, Terrorism Risk Insurance Act, which is a note.
I don't think I included it -- it was an oversight -- in the -- in the
statutory appendix, but it's -- it's codified as a note to Section 1610,
and that -- that provision -- these are the three terrorism provisions
-- execution immunity provisions of the Foreign Sovereign Immunity Act,
and not one of them uses the word immunity -- it says we're abrogating
immunity here or limiting immunity.
So, again, it's not abrogating it wholesale; it's maintaining a -- a --
a skeletal remain of sovereign immunity because -- in recognition of
the fact that these states are sovereign.
Samuel A. Alito, Jr.
All right.
In your brief, you offer several other interpretations of the phrase
"as provided in this section," interpretations that are different from
the one you provided this morning.
Are you disavowing those now?
Asher Perlin
I think that the best construction is that it refers to the judgment entered under 1605A.
I think that those are alternative constructions that are viable and
certainly more viable than the Seventh Circuit's. Again, if you sit down
and try to think of cases where -- where the property of a foreign
state will have applicability -- applicability under 1610(g) where it
wouldn't -- where this property wouldn't be subject to execution under
1610(a)(7), right, according to the Respondents' construction, you won't
find it.
You will not come up with a case or you're going to have to work very,
very hard and there's no reason Congress would have included -- if this
were only meant to pierce a veil, Congress would have said subject to
subsection (3), or paragraph (3), the property of an agency or
instrumentality of a foreign state against which a judgment has been
entered under 1605A is subject to execution -- to attachment and
execution. It did not need to mention the property of the foreign state.
Iran and the government both talk about how it had to mention the foreign state.
Well, it's true, it had to mention the foreign state because a judgment
was entered against the foreign state, but it does not need to single
out the property of the foreign state, if all this were -- was a
veil-piercing mechanism. It doesn't work.
It doesn't -- you cannot pierce the veil of a company or a country to
reach the property the country owns directly. Now, let me just point out
that none of the other provisions of 1610 work with (g) either. (b),
which the Seventh Circuit relied on -- it said this section refers to
subsection -- really refers to subsections (a) and (b). Subsection (b)
applies only where there's a judgment entered against the agency or
instrumentality. If you have -- again, if you have a judgment against
the agency or instrumentality, you don't need a veil-piercing mechanism
to reach it because you go after -- you go after its property directly.
(c) is -- is -- specifically mentions (a) and (b) only, that an
execution referenced under (a) and (b), and it doesn't mention (g). And
Congress could have amended it to include executions under (g). (d) is
for prejudgment attachment where there's an express waiver of immunity.
None of these provisions work.
I'm going to -- I'd like to reserve the rest of my time for rebuttal,
but if you -- if you sit down and try to -- they don't work.
It just doesn't -- there's no way to read it according to the Seventh Circuit and -- and apply it.
John G. Roberts, Jr.
Thank you, counsel. Mr. Strauss.
David A. Strauss
Thank you, Mr. Chief Justice, and may it please the Court: Let me first
pick up on a piece of the legislative history that my friend quoted to
the Court.
Senator Specter, who introduced the precursor of what became 1610(g),
did say that, as -- as Mr. Perlin said, that the provision was designed
to eliminate many of the barriers which are preventing U.S. citizens
from collecting on court-ordered damages.
He then said it does this by changing the legal standard of the Bancec doctrine.
So that was the way in which this exposed more -- more property to
execution by terrorism plaintiffs. In fact, the Petitioners' position
about the construction of 1610(g) is wrong for four independently
sufficient reasons.
One is the language the Court has focused on, "as provided in this
section." This section, is Section 1610, that is the section of which
(g) is a subsection.
So the phrase "as provided in this section" means the Petitioners have
to satisfy the provisions of 1610, which means that only property used
for commercial activity in the United States can be seized.
And Petitioners, I think, have just not come up with a plausible
alternative account of what "as provided in this section" means. But
there's a second reason.
And it has to do with the difference between subsection (g) and the
provisions of subsection 1610 that really do abrogate sovereign
immunity.
The Foreign Sovereign Immunities Act says, in Section 1609, that the
property of foreign states in the U.S. shall be immune from attachment,
except as provided in 1610. Then the subsections of 1610 say in terms
one after another that certain property shall not be immune.
Subsection (a) says that, as does (b), as does (d), as does (e). Subsection (g) contains no such language.
The relevant part of subsection (g) does not refer to immunity at all. And there's a reason for that.
The reason is that (g) is about Bancec, and the Bancec doctrine is not
an immunity doctrine. The Court was very explicit about that in the
decision, the Bancec decision itself.
John G. Roberts, Jr.
Well, you do think -- agree with him, don't you, that the property of a
foreign state in -- in (g)(1) is a -- is a strong indication at least
that it is not limited to overturning the Bancec decision?
David A. Strauss
No, I -- I don't agree with that, Mr. Chief Justice.
I think what's going on there is Congress wanted to make it very clear
that Bancec was no longer -- no longer going to be a barrier in these
cases. And so it said property of the state, property of agencies,
property of instrumentalities, property of separate juridical entities,
interests in separate juridical entities, all of these things are in the
same basket, and all of them are subject to attachment and execution. I
think that's why you have that -- that language in -- in (g)(1).
It's not a --
John G. Roberts, Jr.
But Bancec wasn't about property of a foreign state.
It was about the agencies, instrumentalities, et cetera.
David A. Strauss
It's -- it is -- that is -- it's right that Bancec was not about the
property of a state itself, but the way the section is written, property
of a state including property that is in a separate juridical entity or
is an interest held directly or indirectly in a separate juridical
entity, what you see in the legislative history is a lot of concern that
state judgment debtors would be arranging their assets in ways that
would distance themselves from ownership.
Stephen G. Breyer
Is it the case there on that particular point -- I was trying to work
out that does Bancec ever apply -- could it apply to funds or -- yeah,
funds of the foreign state itself? Is there anything that suggests it
applies where the -- where the foreign state deposits some money in a
bank? And then they argue, we -- that isn't our money, that's the bank's
money, and we're just the beneficial owner of that money.
And Bancec might have said, yes, that's right, it's not their money, it's an agency -- it's an agent's money.
David A. Strauss
I'll -- I'll say two things to that, Justice --
Stephen G. Breyer
What about that argument?
David A. Strauss
-- Justice Breyer.
I think the Bancec criteria are not very clear. The Court deliberately
left the criteria vague. And I think Congress was concerned about that
situation. And I think that's why you see this language in (g)(1) that
really tries to be comprehensive and cover every base.
But what I think you don't get out of (g)(1) is anything about immunity
because it even applies to separate juridical entities who would have
no claim to --
John G. Roberts, Jr.
Well, it doesn't want them to cover everything in every case.
It's titled property in certain actions. And I think the other argument
on the other side is that the certain actions are, you know, the ones
in -- in -- don't include the ones governing the property of the foreign
state.
David A. Strauss
Well, I think the certain actions, Mr. Chief Justice, are actions to execute judgments under 1605A.
This is a special provision to make it easier for terrorism plaintiffs to get assets.
It doesn't apply to ordinary judgment plaintiffs. And I think that's the -- that's the property it's referring to.
This is -- really was intended to make it much easier for plaintiffs
who have terrorism-based judgments to get their hands on assets, but
only those plaintiffs.
And I think those are the actions, and that's why a judgment entered
under 1605A, but that doesn't mean that the rest of the section does not
apply. In fact, it says the rest of the section does apply upon -- as
-- as provided in this -- in this section.
Sonia Sotomayor
Mr. Strauss, I think you were cut off on three independent reasons.
You went -- you went through one and two.
What were three and four?
David A. Strauss
Two was the -- the repetition --
Sonia Sotomayor
The one you were just talking about.
David A. Strauss
Not the repetition of -- shall not be immune.
The third is this: The Petitioners' position really would nullify a
decision Congress made at the very same time it enacted 1610(g) in 2008.
This is -- we go through this on page 25 and 26 of our brief. The --
the statute that added subsection (g) also created 1605, the cause of
action that -- the remedy the Petitioners invoke.
That statute then amended the FSIA to say that parties like
Petitioners, who are seeking to execute a 1605A judgment, must show that
the property they want to seize is used for commercial activity of the
United States. That same statute said that.
It said that by inserting 1605A into subsection (a), which is a
subsection that requires commercial activity. So Congress did that.
It created 1605 -- 1605A. It said if you have a judge -- if you are trying to execute a 1605A judgment, here is how you do it.
Section -- you go to section -- subsection (a), subsection (a)(7) says
you can execute a 1605A judgment, provided you can show that the
property is used for commercial activity in the United States.
That's what that statute does. Then the next provision -- or a few
lines later in the statute, really, it's not even the next provision,
sets up, enacts subsection (g).
So, as Petitioners would -- would have it, Congress created this
remedy, provided that if you want to execute a judgment based on this
remedy, you go to subsection (a) and you show that the property you're
seizing is used for commercial purpose -- commercial activity in the
United States. And then immediately Congress said, oh, never mind, you
don't have to show a commercial activity.
That's Petitioners' story. That's Petitioners' account of the significance of 1610(g).
And I think that's just no way to read Congress's actions.
That just does not -- is not a plausible account of what Congress might
have been doing. And there's really a fourth reason as well, and it has
to do with how central the commercial activity limit is to the FSIA and
to foreign sovereign immunity generally.
The principle at stake here is the principle that commercial property
may sometimes be subject to seizure, but non-commercial property is not.
And that principle is -- has the deepest roots in U.S. law and
international law.
It's actually anticipated by Chief Justice Marshall's opinion in the Schooner exchange.
It was the foundation of the Tate Letter, which led to the
reorganization of foreign sovereign immunity doctrines. That distinction
between commercial and non-commercial property is stated explicitly in
the FSIA itself in Section 1602. It's central to the U.N. Convention on
Immunities of States.
It was the holding of a recent decision of the International Court of
Justice which barred the seizure of, as it happens, a cultural center.
The ICJ barred the seizure of a cultural center because the cultural
center is non-commercial, and that case actually involved the victims of
Nazi crimes.
So this is an extremely deeply rooted principle.
Now, that's not to say Congress could not abrogate it.
Of course, Congress could. But the Court said, just last term, in
Helmerich, the case involving the Venezuelan seizure of oil rigs, that
the Court is not going to assume that Congress has made a quote, in the
Court's words, "radical departure" from central principles like that
one, unless Congress has made its determination very clear, and here
what's really very clear is the opposite, that Congress did not intend
to override sovereign immunity in Section 1610(g). If the Court has no
further questions?
John G. Roberts, Jr.
Thank you, counsel.
David A. Strauss
Thank you very much.
John G. Roberts, Jr.
Mr. Tripp.
Asher Perlin
The first point I want to make is that the -- the government and the
university claim that our reading would render this -- would render
subsections (a)(7) and (b)(3) superfluous.
That's -- that's not the case. The private right of action under --
under Section 1605A(c) applies only where the plaintiffs are U.S.
nationals, members of the military, or government contractors or
employees. The immunity waiver that's also in 1605A, but subsection (a),
so 1605A(a), applies where the claimant or the victim is a U.S.
national, a member of the military, or a government employee or
contractor. It's a -- it applies to a broad -- it -- the immunity waiver
reaches a broader class of plaintiffs.
The remedy provided under 1610(g) is limited to those who hold
judgments under 1605A, and this judgment that's available under 1605A is
a -- is the statutory judgment. The provisions of 1610(a)(7) and (b)(3)
apply where the judgment relates to a claim for which the foreign state
is not immune under 1605A, which is explicitly referring to the
immunity exception and it's explicitly referring to the broader class of
plaintiffs. So we don't think that -- that there's -- there is some
overlap, but it does -- that does not render (a) and (b) superfluous.
Second of all, (b), as Iran argues and they argued below in -- in the
Bennett case, which is Case 16-334, I believe, there, there was a case
where VISA had collected money for Bank Melli, a bank -- an Iranian
bank, and was holding it because -- because of the sanctions. It could
not return that -- it could not pay that money out.
Terrorism victims came and said we want to -- we want to enforce a
judgment against that money that VISA collected on behalf of Bank Melli.
And VISA filed an interpleader action. Iran defended, and they said you
can't -- you cannot enforce your judgment under 1610(b)(3) because that
applies only where the judgment is entered against the instrument --
the agency or instrumentality, and Bank Melli -- there's no judgment
here.
That's what Iran -- that's what Iran's argument was.
The -- and Iran continues to maintain that -- that it won't apply to
(b)(3). And I think that that's -- I mean, that's -- you would have to
say that -- you would have to read out of (b)(3) the limitation that you
need a judgment against the agency or instrumentality for it to apply
to (b)(3). Again, there's -- there's no way to read this through
according to their construction, to read it through and apply it. Now,
again, just to make clear the point about the "as provided" -- "upon a
judgment as provided in this section," if you look at the other
substantive provisions of 1610, they allow -- let's start with -- let's
look at 1610(a).
The opening paragraph says that the property of a foreign state used
for commercial activity in the United States shall not be immune from
attachment or from execution, upon a judgment entered by a court of the
United States.
Right? There's "execution, upon a judgment" and then words that modify the judgment.
Same thing in subsection (b).
It's the exact same structure. Subsection (f), it's not the exact same
words, but it's the same structure again that -- that the property is
subject to execution of any judgment relating to a claim for which the
state is not immune.
Again, the words following "judgment" are modifying the word
"judgment," which makes sense under the last antecedent rule, and it
also makes sense here because we're -- we're talking about a particular
judgment.
Section 1610(g) applies to -- to a particular judgment. The -- the word "execution" is separated from that phrase by a comma.
The words "upon that judgment as provided in this section" do not contain a comma.
Those words are meant to be read together, and the "as provided in this
section" is modifying the word "judgment." The U.S. concerns about
foreign -- about foreign -- foreign relations are misplaced.
The explicit purpose -- one of the explicit purposes of the Foreign
Sovereign Immunities Act was to remove foreign sovereign immunity
decisions from the executive branch and -- and place them with the
courts. And that was for two reasons.
One, that -- that plaintiffs, American plaintiffs, were being treated
unequally based on whatever policy consideration was relevant at the
time. And, two, the government was subject to foreign pressure.
So to -- to remove this pressure from the government, Congress placed
this authority in the hands of the courts rather than the government.
