Rubin v. Islamic Republic of Iran, 583 U.S. ___ (2018)
The Foreign Sovereign Immunities Act grants foreign states and their agencies and instrumentalities immunity from suit in the U.S. and grants their property immunity from attachment and execution in satisfaction of judgments against them, 28 U.S.C. 1609, with some exceptions. Petitioners obtained a judgment against the Islamic Republic of Iran under section 1605A, an exception that applies to foreign states designated as state sponsors of terrorism with respect to claims arising out of acts of terrorism. Petitioners sought to attach and execute against Iranian assets—a collection of ancient clay tablets and fragments housed at University of Chicago. The Seventh Circuit and Supreme Court affirmed a holding in favor of Iran. Section 1610(g), which provides that certain property is “subject to attachment in aid of execution, and execution, upon [a 1605A] judgment as provided in this section” does not provide a freestanding basis for parties holding a 1605A judgment to attach and execute against the property of a foreign state. For section 1610(g) to apply, the immunity of the property at issue must be rescinded under a separate section 1610 provision. The section 1610 provisions that unambiguously revoke the immunity of a foreign state’s property employ textual markers that are absent from 1610(g). There is support for petitioners’ position that section 1610(g) was intended to divest all property of a foreign state or its agencies or instrumentalities of immunity.
SUPREME COURT OF THE UNITED STATES
Syllabus
RUBIN et al. v. ISLAMIC REPUBLIC OF IRAN et al.
certiorari to the united states court of appeals for the seventh circuit
No. 16–534. Argued December 4, 2017—Decided February 21, 2018
The Foreign Sovereign Immunities Act of 1976 (FSIA) grants foreign states and their agencies and instrumentalities immunity from suit in the United States and grants their property immunity from attachment and execution in satisfaction of judgments against them, see 28 U. S. C. §§1604, 1609, but with some exceptions. Petitioners hold a judgment against respondent Islamic Republic of Iran pursuant to an exception that applies to foreign states designated as state sponsors of terrorism with respect to claims arising out of acts of terrorism. See §1605A. To enforce that judgment, petitioners filed an action in the District Court to attach and execute against certain Iranian assets—a collection of ancient clay tablets and fragments housed at respondent University of Chicago. The District Court concluded that §1610(g)—which provides that certain property will be “subject to attachment in aid of execution, and execution, upon [a §1605A] judgment as provided in this section”—does not deprive the collection of the immunity typically afforded the property of a foreign sovereign. The Seventh Circuit affirmed.
Held: Section 1610(g) does not provide a freestanding basis for parties holding a judgment under §1605A to attach and execute against the property of a foreign state; rather, for §1610(g) to apply, the immunity of the property at issue must be rescinded under a separate provision within §1610. Pp. 4–15.
(a) Congress enacted the FSIA in an effort to codify the careful balance between respecting the immunity historically afforded to foreign sovereigns and holding them accountable, in certain circumstances, for their actions. As a default, foreign states have immunity “from the jurisdiction of the courts of the United States and of the States,” §1604, but there are express exceptions, including the one at issue here, for state sponsors of terrorism, see §1605A(a). The FSIA similarly provides as a default that “the property in the United States of a foreign state shall be immune from attachment arrest and execution.” §1609. But §1610 outlines certain exceptions to this immunity. For example, §1610(a)(7) provides that property in the United States of a foreign state that is used for a commercial activity in the United States shall not be immune from attachment and execution where the plaintiff holds a §1605A judgment against the foreign state. Before 2008, the FSIA did not expressly address under which circumstances a foreign state’s agencies or instrumentalities could be held liable for judgments against the state. The Court had addressed that question in First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611 (Bancec), and held that, as a default, agencies and instrumentalities of a foreign state are separate legal entities that cannot be held liable. It recognized the availability of exceptions, however, and left the lower courts to determine whether an exception applied on a case-by-case basis. The lower courts coalesced around five relevant factors (the Bancec factors) to assist in those determinations. In 2008, Congress amended the FSIA, adding §1610(g). Subparagraphs (A) through (E) incorporate almost verbatim the Bancec factors, leaving no dispute that, at a minimum, §1610(g) serves to abrogate Bancec where a §1605A judgment holder seeks to satisfy a judgment held against the foreign state. The question here is whether, in addition to abrogating Bancec, it provides a freestanding exception to property immunity in the context of a §1605A judgment. Pp. 4–8.
(b) The most natural reading of §1610(g)(1)’s phrase “as provided in this section” is that it refers to §1610 as a whole, so that §1610(g)(1) will apply to property that is exempted from the grant of immunity as provided elsewhere in §1610. Those §1610 provisions that do unambiguously revoke the immunity of a foreign state’s property employ phrases such as “shall not be immune,” see §1610(a)(7), and “[n]otwithstanding any other provision of law,” see §1610(f)(1)(A). Such textual markers are conspicuously absent from §1610(g). Thus, its phrase “as provided in this section” is best read to signal only that a judgment holder seeking to take advantage of §1610(g)(1) must identify a basis under one of §1610’s express immunity-abrogating provisions to attach and execute against a relevant property. This reading provides relief to judgment holders who previously would not have been able to attach and execute against property of an agency or instrumentality of a foreign state in light of Bancec. It is also consistent with the basic interpretive canon to construe a statute so as to give effect to all of its provisions, see Corley v. United States, 556 U. S. 303 , and with the historical practice of rescinding attachment and execution immunity primarily in the context of a foreign state’s commercial acts, see Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480 –488. Pp. 8–11.
(c) Petitioners’ counterarguments are unpersuasive. They assert that the phrase “as provided in this section” might refer to the procedures in §1610(f)(1), which permits §1605A judgment holders to attach and execute against property associated with certain prohibited financial transactions, but which was waived by the President before it could take effect. However, it is not logical to read the phrase as indicating a congressional intent to create §1610(g) as an alternative to §1610(f)(1), particularly since Congress knows how to make clear when it is rescinding immunity. Nor could Congress have intended “as provided in this section” to refer only to §1610(f)(2)’s instruction that the Federal Government assist in identifying assets, since that provision does not provide for attachment or execution at all. Finally, there is no basis to conclude that “this section” in §1610(g) reflects a mere drafting error.
The words “property of a foreign state,” which appear in the first substantive clause of §1610(g), are not rendered superfluous under the Court’s reading. Section 1610(g) serves to identify in one place all the categories of property that will be available to §1605A judgment holders for attachment and execution, and commands that the availability of such property will not be limited by the Bancec factors. Also, without the opening clause, §1610(g) would abrogate the Bancec presumption of separateness in all cases, not just those involving terrorism judgments under §1605A. Although petitioners contend that any uncertainty in §1610(g) should be resolved by giving full effect to the legislative purpose behind its enactment—removing obstacles to enforcing terrorism judgments—they offer no real support for their position that §1610(g) was intended to divest all property of a foreign state or its agencies or instrumentalities of immunity. Bank Markazi v. Peterson, 578 U. S. ___, ___, n. 2, distinguished. Pp. 12–15.
830 F. 3d 470, affirmed.
Sotomayor, J., delivered the opinion of the Court, in which all other Members joined, except Kagan, J., who took no part in the consideration or decision of the case.
JUDGMENT ISSUED. |
Adjudged to be AFFIRMED. Sotomayor, J., delivered the opinion of the Court, in which all other Members joined, except Kagan, J., who took no part in the consideration or decision of the case. |
Argued. For petitioners: Asher Perlin, Hollywood, Fla. For respondents: David A. Strauss, Chicago, Ill; and Zachary D. Tripp, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) |
Reply of petitioners Jenny Rubin, et al. filed. (Distributed) |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. Justice Kagan took no part in the consideration or decision of this motion. |
Brief amicus curiae of United States filed. (Distributed) |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. |
Brief of respondent Islamic Republic of Iran filed. (Distributed) |
Brief of respondent University of Chicago filed. (Distributed) |
CIRCULATED |
Letter of respondent Field Museum of Natural History advising the Court that it has no interest in the outcome of proceedings in this Court and waiving the filing of a brief on the merits. |
SET FOR ARGUMENT ON Monday, December 4, 2017. |
Motion to dispense with printing the joint appendix filed by petitioners GRANTED. Justice Kagan took no part in the consideration or decision of this motion. |
Blanket Consent filed by Petitioner, Jenny Rubin, et al. on 09/13/2017 |
Brief amici curiae of Foundation for Defense of Democracies filed. |
Brief amici curiae of Victims of Iranian Terrorism filed. |
Brief amici curiae of Former U.S. Counterterrorism Officials, et al. filed. |
Blanket Consent filed by Respondent, University of Chicago on 09/12/2017 |
Blanket Consent filed by Respondent Islamic Republic of Iran. |
Blanket Consent filed by Petitioners, Jenny Rubin, et al. |
Blanket Consent filed by Respondent, Field Museum of Natural History on 09/13/2017 |
Brief of petitioner Jenny Rubin, et al. filed. |
Motion to dispense with printing the joint appendix filed by petitioner Jenny Rubin, et al. |
The time to file respondents' briefs on the merits is extended to and including October 23, 2017. |
The time to file the joint appendix and petitioners' brief on the merits is extended to and including September 1, 2017. |
Petition GRANTED limited to Question 1 presented by the petition. Justice Kagan took no part in the consideration or decision of this petition. |
DISTRIBUTED for Conference of June 26, 2017. |
Supplemental brief of petitioners Jenny Rubin, et al. filed. (Distributed) |
DISTRIBUTED for Conference of June 22, 2017. |
Brief amicus curiae of United States filed. |
The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States. Justice Kagan took no part in the consideration or decision of this petition. |
Letter of December 6, 2016, from counsel for petitioners received. (Distributed) |
DISTRIBUTED for Conference of January 6, 2017. |
Reply of petitioners Jenny Rubin, et al. filed. (Distributed) |
Brief of respondent Islamic Republic of Iran filed. |
Brief of respondent The University of Chicago in opposition filed. |
Brief of respondent Field Museum of Natural History in opposition filed. |
Order extending time to file response to petition to and including November 25, 2016, for all respondents. |
Petition for a writ of certiorari filed. (Response due November 18, 2016) |
Prior History
- Jenny Rubin v. Islamic Republic of Iran, No. 08-2805 (7th Cir. Mar. 29, 2011)
Plaintiffs, injured in a 1997 Jerusalem suicide bombing, obtained a $71 million default judgment against the Republic of Iran for its role in the attack. They registered the judgment in Illinois in order to attach antiquities on loan to a university and property owned by museums. The court held that Iran was required to appear to assert a defense under the Foreign Sovereign Immunities Act, 28 U.S.C. 1330(a). When Iran appeared, plaintiffs served discovery requests for the locations of all Iranian assets in the United States. The district court allowed the discovery. The Seventh Circuit reversed. The orders were subject to immediate appeal because of possible intrusion on sovereign immunity. The Act provides that property of a foreign state shall be immune from attachment unless an enumerated exception applies. The district court did not address the exceptions, but issued a blanket order that was contrary to the presumption of immunity. That there has been a determination of liability does not nullify the protections of the Act with respect to execution. Based on the presumption of immunity, Iran was not required to appear to assert the defense in the first place. The court noted provisions of the Act, under which federal agencies may assist plaintiffs in collecting judgments against foreign states.