Opposition Brief — Asociacion de Reclamantes v. United Mexican States
Supreme Court brief1985
Ask Donna
What actually matters in this document.
Text
Office Supreme Court, U.S.
| FILED
© 20 1
No. 84-992 | Fee
——SxANDER t STEVAS.
CLERK
han
IN THE —
Supreme Court of the United State
OCTOBER TERM, 1984
ASOCIACION DE RECLAMANTES, AMINTA ZARATE, LUIS RIOJAS,
FeLipa FLORES BENAVIDEZ, MARIA AGUIRRE DE SCHULTZ,
Nieves GUERRERO CHAPA, SANTOS ZARATE PRIETO,
Petitioners,
Vv.
THE UNITED MEXICAN STATES,
Respondent.
On Petition for a Writ of Certiorari to the United States
Court of Appeals for the District of Columbia Circuit
BRIEF FOR THE UNITED MEXICAN STATES
IN OPPOSITION
JOHN H. SHENEFIELD*
DOROTHY ASHLEY DOHERTY
D. STEPHEN MATHIAS
CaROL A. CORCORAN
MILBANK, TWEED, HADLEY & McCLoy
182° Eye Street, N.W.
Suite 900
Washington, D.C. 20006
(202) 835-7500
* Counsel of Record
February 20, 1985
PAMDICK WASHINGTON, 0.C.—- 1801 4. OAK STREET, ARLINGTON, VA 22208-— (703) 522-6000
BEST AVAILABLE COPY
i
QUESTION PRESENTED
Whether, despite the general rule of sovereign immunity
established by the Foreign Sovereign Immunities Act, the
United Mexican States (“‘Mexico”) may be sued in a US.
court on intangible claims for monetary compensation arising
from claims that were originally espoused by Mexico on behalf
of Mexican nationals and their heirs and subsequently ex-
tinguished pursuant to a 1941 bilateral claims settlement treaty,
on the ground that the suit is one in which “rights in immovable
property situated in the United Siates are in issue,” even though
those claims in no way affect title to, or possession or use of,
land in the United States.
TABLE OF CONTENTS
Page
COOTER Ie FINES ID vcnnsesisickstictnntiblnniaisinninlamittaaninsgnns i
FR er Be ee tik ciiincidescncsiciaanbeiipetintinadans ill
Ce POT in cits cuscssininnscnanisnctiaiitiadigpiitaiunaunanatadiaasiognnes |
FEF IIT scsissinsinicinisienaytesibaiibaiapisttieciaaatichahidaibasteinbiadasiaiias l
SAE ee ee ED neni ciesnintninteilteailaticeidibitailiiaaaniinaitiaaiat 2
STA TIERGOCE Gir Tite CA weiicccniccssincntisctncsnnsssonsadinnvis 2
URE TIE wiscssctciscscissdeiitnsadeincitestinbnisapmenciiiin 2
Te CI i ccccneinsesicncticeinlciipicicenpricenciptierenihieaaaanentiss <
Bae BS TT ss criiincsssactctenssihsibistaceiaiinmcasiteamatbeasties 5
PTRASUIIEIN TE xcccnnsinswisnsistsiutescai sisaiasiattinmaimiianiaiaiaaiadaatsamiaiaidbaiiied 6
I. THE COURT OF APPEALS CORRECTLY
CONCLUDED THAT THE FOREIGN SOV-
EREIGN IMMUNITIES ACT’S “IMMOV-
ABLE PROPERTY” EXCEPTION DOES NOT
APPLY TO PETITIONERS’ CLAIMB................ 6
A. The Court of Appeais Construed and Ap-
plied the “Immovable Property” Ex-
ception Consistently With its Plain Lan-
guage, Legislative History and Purpose...... 7
1. Plain Language, Legislative History
OUNES FUIIID sccscccniccennccenatnianisaiininiigs 7
2. The Meaning of the “Immovable
PIODOT YS” TEI orcsiccveccncsnseninssncnce 8
3. Application of the “Immovable
Property” Exception .........cccssccscccoceseee 12
B. The Court of Appeals Correctly Con-
cluded That the Comegys and Bachman
Cases Do Not Bring Petitioners’ Claims
Within the “Immovable Property”
OIIIOD. .nnsiccsnrciscinienebnaanaae 13
II. THE DECISION OF THE COURT OF AP-
PEALS RAISES NO CONSTITUTIONAL
FEET Ee sccuscyngecnsssinimsinenenntitecsicshabienaasibeniaiiaiimemntiie 16
CONCLUDING STA TEGIIG TD ccteinnsecssssscsieminieaincence 16
COIN, ccscninrintiestotensenattnntnsitemmmamaaadaal 18
APPETITES A, cccsccscsnccssseseseenmmsutiniammaalanl la
il
TABLE OF AUTHORITIES
Page
CASES
Alfred Dunhill of London, Inc. v. Republic of Cuba,
a Ee 17
American Tobacco Co. v. Patterson, 456 U.S. 63
Nee eihacmmionss 6
Asociacion de Reclamantes v. The United Mexican
States, 735 F.2d 1517 (D.C. Cir. 1984) ................... passim
Asociacion de Reclamantes v. The United Mexican
States, 561 F. Supp. 1190 (D.D.C. 1983)... l
Bachman v. Lawson, 109 U.S. 659 ( 1884)..................- 6,13-14
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398
ea cslineeeianevcoonens 17
Comegys v. Vasse, 26 U.S. (1 Pet.) 193 ( 1828)........... 6,13-14
County Board v. German Democratic Republic, No.
78-293-A (E.D. Va. Sept. 6, 1978), reprinted in 17
Int’l Legal Materials 1404-06 (1978) ..0...........:eeee00e- 9
De Rodulfa v. United States, 462 F.2d 1240, cert.
EY C00. Se © BO TE D vcvcoscsncccneccerscerscveeesenasonse 16-17
Frelinghuysen v. United States ex rel. Key, 110 US.
NES a Se a ne a 15
Frevall v. Bache, 39 U.S. 95 (1840) 0... eee eeeeeeeee eee 15
Great Western Insurance Co. v. United States, 112
OF BO 0 BOO Pcicnncserntsocconsen Le en 15
Greene v. United States, 376 U.S. 149 (1964) ............. 17
Hawthorne Oil and Gas Corp. v. Continental Oil Co.,
ey ee ee OY GE. EB, B9TP) cecccccccreccccccesscoscce 1]
In re Rio Grande Transport, Inc., 516 F. Supp. 1155
a ccsiannnenbeunennnniiones 9,10-11
La Abra Silver Mining Co. v. United States, 175 U.S.
ENE RE Ee 15
McKeel v. Islamic Republic of Iran, 722 F.2d 582
(9th Cir. 1983), cert. denied, 105 S.Ct. 243 (1984). 9
Phelps v. McDonald, 99 U.S. 298 (1878) .........cccceceeeeee 15
Rex v. Cia. Pervana de Vapores, S.A., 660 F.2d 61
(3d Cir. 1981), cert. denied, 456 U.S. 926 (1982)... 12
Ruggiero v. Compania Peruana de Vapores, 639 F.2d
ee is I Pietatishcinheisisisindinitbanindapitaiiatisiiainenatini
Teamsters v. Daniel, 439 U.S. 551 (1979) cece eeeeeeee
Texas Trading & Milling Corp. v. Federal Republic of
Nigeria, 647 F.2d 300 (2d Cir. 1981), cert. denied,
AE Rs EP sintbsbdsctenicaceaancontaetacbeanintncnbicstionnes
The Caldera Cases, 15 Ct. Cl. 546 (1879) .u...eecceeceeeeeee
2 Tudor City Place Associates v. Libyan Arab Repub-
lic Mission to the U.N., 121 Misc. 2d 945, 470
ae eG ye Re Oe, ) Renee ene
United States ex rel. Angarica v. Bayard, 127 US.
I ee ies
United States ex rel. Boynton v. Blaine, 139 U.S. 306
SE SIP. Dic chsriilapsnesdasnimectndee intitle aA al
Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.
Le) REN RRC Re Pn IS ay ne ee
Williams v. Heard, 140 U.S. 529 (1891) wu...
Williams v. Shipping Corp. of India, 653 F.2d 875
(4th Cir. 1981), cert. denied, 455 U.S. 982 (1982).
FEDERAL STATUTES AND RULES
RG a RR eC ae eR
EE SERENE meen eee
Sota ear enn
Ff: EE NONI? BANE Ne Sone
Settlement of Mexican Claims Act of 1942, Pub. L.
Ps ee Se Ie WI 0 BIE D esoicccstiniccssccsatssacccanerene
FOREIGN Law
Decree of President Manuel Avila Camacho, 129
Epensee CGenal § 5 (idee. 31, 1941 ) cccccccsccccscsseccccscesess
Directo 558-61/2, Fortino Lopez Cuevas y Coags., 3rd
Chamber, Supreme Court of Justice, 1965 Report...
St ne De
Page
LEGISLATIVE HISTORY
H.R. Rep. No. 1487, 94th Cong., 2d Sess. (1976),
reprinted in 1976 U.S. Code Cong. & Ad. News
UTA ccilsx-inituiies dcilbaccitsSspcaahetaseto ede cetaighabddeabialatelaatlidata
TREATIES
Treaty on General Claims, Sept. 8, 1923, United
States-Mexico, 43 Stat. 1730, T.S No. 678...............
Protocol Relative to General Claims, Apr. 24, 1934,
United States-Mexico, 49 Stat. 3531, E.A.S. No.
Treaty on Final Settlement of Certain Claims, Nov.
19, 1941, United States-Mexico, 56 Stat. 1347, T.S.
TREATISES AND PERIODICALS
E. Borchard, The Diplomatic Protection of Citizens
BG CT Pcrtiscdcencntitintdasandiansiee a ee
Boyd, Litigation Against Foreign Governments, Litig.,
FOE TOG crccissessiseasscccsuiisssiadicaiamaicialaiaieaaabaiiabmadbibias
Crawford, Execution of Judgments and Foreign Sov-
ereign Immunity, 75 Am. J. Int'l L. 820 (1981) .......
L. Henkin, Foreign Affairs and The Constitution
( FFTS ) sccscnintninascnenandensteeiicesasnduaditdendoamaiabiewiiaaiuassibein
R. Lillich, Jnternational Claims: Their Adjudication
by National Commissions (1962 ) ........ccccccceeeeeeceeeeeees
6 J. Moore, A Digest of International Law (1906) ......
7B J. Moore, M. Waxner, H. Fink, D. Epstein &
G. Grotheer, Jr., Moore’s Federal Practice (2d ed.
FEW U ninchsicdsninsssacncdaansetdinicreabiceinaiasidaieiibaddassmanaians
Restatement (Second) of Foreign Relations Law of
a VIG TI 0 Fe Bi cctestis sacnrvenccisicnicttinciesscnccectitiene
Restatement (Second) of Foreign Relations Law of
the United States (Revised) (Tent. Draft No. 2,
FADED ccccesocsnnnciksindtbiinnwesitstdettaietctlateslideesshdhatinbuenoiamasasiiabae: dias
Weber, The Foreign Sovereign Immunities Act of
1976: Its Origin, Meaning and Effect, 3 Yale
Studies in World Public Order 14 (1976) ou...
Page
8,10
2,3
2,3
passim
15
vl
MISCELLANY
Letter from Jack B. Tate, Acting Legal Advisor, U.S.
Dep’t of State, 26 Dep’t of State Bulletin 984
(1952), reprinted in Jurisdiction of U.S. Courts in
Suits Against Foreign States: Hearings on H.R.
11315 Before the Subcomm. on Admin. Law and
Governmental Relations of the House Comm. on the
Judiciary, 94th Cong., 2d Sess. 54 (1976)
U.S. Const. amend. V
SOTO EEE EEEE EEE EEE EEE EE EEE SEES EEEEEEES
Page
IN THE
Supreme Court of the United States
OCTOBER TERM, 1984
No. 84-992
ASOCIACION DE RECLAMANTES, AMINTA ZARATE, LUIS RIOJAS,
FELIPA FLORES BENAVIDEZ, MARIA AGUIRRE DE SCHULTZ,
NIEVES GUERRERO CHAPA, SANTOS ZARATE PRIETO,
Petitioners,
Vv.
THE UNITED MEXICAN STATES,
Respondent.
On Petition for a Writ of Certiorari to the United States
Court of Appeals for the District of Columbia Circuit
BRIEF FOR THE UNITED MEXICAN STATES
IN OPPOSITION
OPINIONS BELOW
The opinion of the United States Court of Appeals,
Asociacion de Reclamantes v. The United Mexican States, is
reported at 735 F.2d 1517 (D.C. Cir. 1984) and reproduced in
Petitioners’ Appendix (“‘Pet. App.”) at pages la-l5a. The
opinion of the United States District Court for the District of
Columbia is reported at 561 F. Supp. 1190 (D.D.C. 1983) and
reproduced in Petitioners’ Appendix at pages 17a-38a.
JURISDICTION
The judgment of the Court of Appeals was entered on June
5, 1984. A petition for rehearing was denied on August 28,
1984. On January 2, 1985. the time within which Respondent
2
was permitted to file its bnef in opposition to the petition for a
writ of certiorari was extended to and including February 20,
1985. The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1)( 1982).
STATUTE INVOLVED
The petition involves the Foreign Sovereign Immunities
Act (“FSIA”), 28 U.S.C. §§ 1330, 1602-1611 (1982). Rele-
vant portions of this statute are reproduced in Appendix A to
this Brief.
STATEMENT OF THE CASE
Historical Background
Prior to 1848, both Mexico and Spain made grants of land
located in what is now Texas. in subsequent years, many of the
grantees, their heirs and descendants were driven off their land
illegally. On September 8, 1923, the United States and Mex-
ico entered into a Treaty on General Claims, Sept. 8, 1923,
United States-Mexico, 43 Stat. 1730, T.S. No. 678 (the “1923
Treaty”). That treaty established a general claims commission,
to which each nation was to submit, for adjudication, any
claims of its citizens against the other country. 1923 Treaty, art.
I. Mexico filed claims with, and sought redress from, this
commission, on behalf of those grantees who had lost their
land.
Protracted delays prompted the United States and Mexico
to enter into another agreement on the settlement of claims.
Protocol Relative to General Claims, Apr. 24, 1934, United
States-Mexico, 49 Stat. 3531, E.A.S. No. 57 (the “1934 Proto-
col”). Pursuant to that agreement, the United States and
Mexico agreed “to effect a more expeditious and more econom-
ical disposition of the claims either by means of an en bloc
settlement or a more simplified method of adjudication.” 1934
Protocol, 49 Stat. at 3532.
3
The general claims commission set up by the 1923 Treaty
and extended by the 1934 Protocol failed to resolve any of the
claims submitted by Mexico on behalf of the grantees, and its
authority to hear claims expired in 1936. Thereafter, negotia-
tions between the two sovereigns were resumed and Mexico
resubmitted the claims for diplomatic settlement. The negotia-
tions culminated in the Treaty on Final Settlement of Certain
Claims, Nov. 19, 1941, United States-Mexico, 56 Stat. 1347,
T.S. No. 980 (the “1941 Treaty”). By the terms of this Treaty,
Mexico agreed to pay $40 million in full settlement, liquidation
and satisfaction of the unadjudicated claims previously filed by
both countries with the general claims commission. Both
countries agreed to “reciprocally cancel, renounce, and hereby
declare satisfied all claims, of whatsoever nature, of nationals of
each country against the Government of the other.” 194]
Treaty, art. III.
The 1941 Treaty was not self-executing and required that
both countries enact legislation prior to the settlement of any
claims. In 1942, the U.S. Congress enacted legislation setting
up a Mexican-American Claims Commission to provide for the
settlement of claims held by U.S. nationals and espoused by the
United States in the treaty negotiations. Settlement of Mexican
Claims Act of 1942, Pub. L. No. 814, 56 Stat. 1058 (1942).
Concurrently with Mexico’s payments to the United States
for the benefit of claims held by U.S. nationals, the President of
Mexico issued a decree stating:
Whereas it is the duty of the Government to tend
to said claims of our nationals in order to satisfy them
in accordance with the role they played in the
recently concluded Convention with our neighbor
country to the North and in accordance with the rules
ex aequo et bono; as already manifested pubiicly in
the Bulletins and official declarations made as a result
of the signing of the aforementioned Convention
regarding the claims.
4
Whereas the claims [against the United States
that were settled by the 1941 Treaty] referred to
have lost their international character, and have
become internal responsibilities of our government...
as only one of our many domestic pecuniary responsi-
bilities.
Whereas it is necessary to have a law enacted by
the honorable Congress of the Union indicating the
appropriate procedure for evaluating the claims
referred to in this Decree, to judge them and to
ascribe to them the compensation to which they are
entitled ....
... | have found it proper to order the following:
Decree
I. The Secretariat of Finance shall immediately
proceed to study and prepare a draft legislative
initiative, which shall be submitted to the honorable
Congress of the Union, for the settlement, valuation,
and payment of the Mexican claims presented to the
extinct General Claims Commission... .
Decree of President Manuel Avila Camacho, 129 Diario Oficial
§5 (Dec. 31, 1941) [translation from Spanish] (emphasis
added). While legislation necessary to establish a mechanism
to adjudicate and pay the claims has not yet been submitted to
the Mexican Congress, access to the Mexican courts remains
available to Petitioners for the pursuit of their claims. Mex.
Const. art. XVIL
The Complaint
Petitioners allege that they are descendants, heirs, and
successors of the original grantees from Spain and Mexico of
5
land in Texas, whose land was taken illegally. Pet. App. at
50a. Alleging jurisdiction under the FSIA, Petitioners filed suit
in the United States District Court for the District of Columbia.
In their complaint, they sought the value of their predecessors’
claims, alleged to be at least $193 million in 1941, plus interest.
Petitioners also sought money damages to be paid into a fund,
“the distribution of which shall be supervised by the court
under an appropriate procedure to be determined.” Pet. App.
at 7la.
The Decisions Below
In granting Mexico’s motion to dismiss, the District Court
rejected Petitioners’ contention that their allegations state a case
in which “rights in immovable property situated in the United
States are in issue” under § 1605(a)(4) of the FSIA, finding
instead that the claims concerned “intangible property rights
created through the diplomatic process.” Pet. App. at 29a. The
District Court also rejected Petitioners’ argument that the fact
that legislation necessary to establish a mechanism to adjudi-
cate and pay claims has not yet been submitted to the Mexican
Congress amounted to tortious conduct within the meaning of
§ 1605(a)(5) of the FSIA. Accordingly, the District Court
held that, as a sovereign foreign state, Mexico was immune
from jurisdiction, and, in addition, that the Act of State doctrine
would prohibit adjudication on the merits even if jurisdiction
had existed. Jd. at 37a.
The Court of Appeals affirmed the District Court's dis-
missal, holding that neither the “rights in immovable property”
nor the “tortious act” exception of the FSIA was applicable. /d.
at 13a. The Court of Appeals held that Congress, in enacting
the FSIA, intended to codify “the preexisting real property
exception to sovereign immunity recognized by international
practice,” id. at 7a, which was limited to disputes “directly
implicating property interests or rights to possession.” Jd. at 9a.
The Court of Appeals also declined to find jurisdiction under
the “tortious act” exception to the FSIA, ruling that Mexico’s
conduct lacked the required nexus with the United States, id. at
14a, and declined to reach the Act of State question.
6
ARGUMENT
The Court of Appeals’ well-reasoned opinion is correct,
does not conflict with any decision of this Court or of any court
of appeals, and does not present any issue warranting review.
The only issue before the Court of Appeals was whether United
States courts have subject matter jurisdiction under the Foreign
Sovereign Immunities Act over claims like Petitioners’. The
Court of Appeals’ carefully circumscribed construction of the
FSIA’s “immovable property” exception to foreign sovereign
immunity is wholly consistent with the plain language, purpose
and legislative history of the FSIA, and its application of that
construction to the facts of this case is correct.
Bachman v. Lawson, 109 U.S. 659 (1884), and Comegys
v. Vasse, 26 U.S. (1 Pet.) 193 (1828), on which Petitioners
principally rely, are irrelevant to this case. Neither case holds
or even implies that Petitioners’ claims ever constituted rights in
“immovable property” within the meaning of the FSIA, much
less that they have that character today.
Petitioners’ assertion that this case involves a “taking” by
the United States in violation of the Fifth Amendment to the
U.S. Constitution is equally irrelevant to a case in which Mexico
is the sole defendant.
I THE COURT OF APPEALS CORRECTLY CON-
CLUDED THAT THE FOREIGN SOVEREIGN IMMU-
NITIES ACT’S “IMMOVABLE PROPERTY” EX-
CEPTION DOES NOT ‘PLY TO PETITIONERS’
CLAIMS.
This Court has never interpreted the “immovable proper-
ty” exception to the FSIA. Nor had any federal court of
appeals done so prior to the decision below.
The decisions of this Court teach that statutory inter-
pretation must begin with the language employed by Congress
and the assumption that the ordinary meaning accurately
expresses the legislative purpose. See, e.g., American Tobacco
Co. v. Patterson, 456 U.S. 63, 65 (1982). In interpreting the
words of a statute, a court has an “obligation to honor the clear
meaning of a statute, as revealed by its language, purpose, and
history.” Teamsters v. Daniel, 439 U.S. 551. 566 n.20 (1979).
-
A. The Court of Appeals Construed and Applied the
“Immovable Property” Exception Consistently With
Its Plain Language, Legislative History and Purpose.
1. Plain Language, Legislative History and Purpose
Petitioners argue that there is federal court jurisdiction in
this case because of the exception to the general rule of
sovereign immunity for cases “in which... rights in immov-
able property situated in the United States are in issue.” 28
U.S.C. § 1605(a)(4). Their argument, however, depends upon
a reading of the exception that was correctly found by the Court
of Appeals to be impermissibly expansive and unsupported by
the FSIA’s legislative history and purpose.
The Court of Appeals, in construing the exception as
inapplicable to Petitioners’ claims, looked first to the language,
and found its meaning to be far from plain:
[T]jhe term “rights in immovable property” is an
imprecise one, susceptible of as many different mean-
ings as there are areas of law for which that charac-
terization of an interest may be relevant.
Pet. App. at 7a.!
The Court of Appeals then proceeded, as this Court has
advised, to interpret the statutory language in light of its
“reading of the legislative history and [its] understanding of
the purpose” of the FSIA. Jd. The purpose of the Act, it found,
was
to codify the so-called “restrictive” principle of sover-
eign immunity, under which foreign sovereigns are
accorded immunity with regard to their sovereign or
public acts (actiones jure imperii), but not with
' Those who have treated the exception’s meaning as self-evident have
interpreted it, as did the Court of Appeals below at the end of the day, as
limited to actions affecting ownership interests in, or nghts to possession of,
real property. See, ¢.g., 7B J. Moore, M. Waxner, H. Fink, D. Epstein & G.
Grotheer. Jr.. Moore’s Federal Practice § 1605 at JC-800.9 (2d ed. 1984):
Boyd. Litigation Against Foreign Governments, Litig., Fall 1981, at 14, 16.
8
respect to their commercial acts (actiones jure ges-
tionis), and in addition to withhold immunity for
certain narrowly defined public acts for which local
adjudication was deemed imperative (e.g., traffic
accidents caused by employees and officials of a
foreign embassy ).
Pet. App. at 4a, citing H.R. Rep. No. 1487, 94th Cong., 2d Sess.
7, 20-21, reprinted in 1976 U.S. Code Cong. & Ad. News 6604,
6619-20 (hereinafter cited as ““House Report”). In particular,
the purpose of the “immovable property” exception, one of
those exceptions for “narrowly defined public acts for which
local adjudication was deemed imperative,” was explicitly
declared by Congress to be
to codify, with minor exceptions not relevant here,
the pre-existing real property exception to sovereign
immunity, recognized by international practice.
Pet. App. at 7a, citing House Report at 20, referring to Letter
from Jack B. Tate, Acting Legal Advisor, U.S. Dep’t of State,
26 Dep’t of State Bulletin 984 (1952), reprinted in Jurisdiction
of U.S. Courts in Suits Against Foreign States: Hearings on
H.R. 11315 Before the Subcomm. on Administrative Law and
Governmental Relations of the House Comm. on the Judiciary,
94th Cong., 2d Sess. 54-55 (1976).
2. The Meaning of the “Immovable Property” Ex-
ception
9. 665
Having concluded that the purpose of the FSIA’s “immov-
able property” exception was to codify preexisting “inter-
national practice,” the Court of Appeals turned to that practice
and found that it
declined to extend the immunity of a foreign sover-
eign to “an action to obtain possession of or establish
a property interest in immovable property located in
the territory of the state exercising jurisdiction.”
9
Id. at 7a, quoting Restatement (Second ) of Foreign Relations
Law of the United States § 68(d)(1965) and Restatement
(Second) of Foreign Relations Law of the United States
(Revised) § 455(1)(c) and comment b (Tent. Draft No. 2,
1981) (emphasis added). The Court of Appeals therefore
concluded that the “immovable property” exception codifying
that practice “is limited to disputes directly implicating [real ]
property interests or rights to possession,” Pet. App. at 9a—in
other words, to disputes whose resolution would “affect proper-
ty interests in, or rights to possession of, land located in the
United States.” Jd. at 13a.2
Because Congress intended the FSIA to codify the pre-
existing U.S. foreign relations law with respect to the “immov-
able property” exception, the Court of Appeals’ determination
of the scope of that exception by reference to U.S. foreign
relations law was logical and necessary. See Weber, The
Foreign Sovereign Immunities Act of 1976: Its Origin, Meaning
and Effect, 3 Yale Studies in World Public Order 14, 15 (1976)
(courts are expected to interpret FSIA in light of pre-FSIA
practice). Other courts have done likewise when faced with the
necessity of construing the FSIA. See McKeel v. Islamic
Republic of Iran, 722 F.2d 582, 587 (9th Cir. 1983), cert.
denied, 105 S. Ct. 243 (1984); Texas Trading & Milling Corp. v.
Federal Republic of Nigeria, 647 F.2d 300, 310 (2d Cir. 1981),
cert. denied, 454 U.S. 1148 (1982); see also Crawford, Execu-
tion of Judgments and Foreign Sovereign Immunity, 75 Am. J.
Int’l L. 820, 852 (1981). Any other source of meaning is less
faithful to the congressional purpose and thus inherently less
reliable.
2 The lower courts that have discussed the “immovable property” ex-
ception have viewed it as encompassing only actions establishing ownership
or possessory rights in real estate. See In re Rio Grande Transport, Inc., 5\6
F. Supp. 1155, 1160 (S.D.N.Y. 1981) (“The legislative history of
§ 1605(a)(4) unequivocally indicates that immovable property refers only to
real estat-”); 2 Tudor City Place Associates v. Libyan Arab Republic Mission
to the U.N., 121 Misc. 2d 945, 470 N.Y.S.2d 30! (N.Y. Civ. Ct. 1983)
(motion to vacate default judgment of possession); County Board v. German
Democratic Republic, No. 78-293-A (E.D. Va. Sept. 6, 1978), reprinted in 17
Int'l Legal Materials 1404-06 (1978) (amendment of complaint to seek tax
lien allowing the plaintiff to sell real estate stated case within exception).
10
Petitioners’ contention that the scope of the “immovable
property” exception is far more expansive, embracing not only
“disputes directly implicating property interests or rights to
possession” but also their claims, which they describe as
“emanating from” and “deriving from” real property, is not
supported by legislative history. The only item of legislative
history cited by Petitioners in support of their interpretation is
Congress’ inclusion of “rent . . . and similar matters” in its
enumeration of matters that local states have traditionally had
the right to adjudicate. As the Court of Appeals noted,
however, the mention of rent in no way implies that Congress
intended to expand the traditional real estate exception to
include claims like Petitioners’. Pet. App. at 9a n.5, discussing
House Report at 20. Actions for rent frequently, if not always,
“call into question either ownership or possessory rights.” Jd.
Petitioners’ contention that the Court of Appeals should
have ignored U.S. foreign relations law in favor of state law as
a guide to the “immovable property” exception’s meaning is
equally unpersuasive. It is absurd to suggest that, in order to
e| minate inconsistencies in immunity determinations by the
Department of State, Congress enacted a federal law whose
meaning was to be furnished by the various laws of the fifty
states. See House Report at 7. Moreover, as the Court of
Appeals noted, the term “rights in immovable property” is
defined differently in different jurisdictions for different pur-
poses. Pet. App. at 7a. Petitioners’ ransacking of those laws
inevitably results in what the Court of Appeals aptly termed
“an artificial consensus definition,” rather than a reliable
indicator of congressional intent. Jd3
3 Even if state law were somehow relevant to the interpretation of the
FSIA’s “immovable property” exception, it would not expand that exception
SO as t© encompass Petitioners’ claims. That compensation awarded for the
compulsory conversion of real estate may be treated, for some purposes and
for some period of time, as real estate, see Petition at 24, is irrelevant. A
compensation func Joes not constitute “immovable property” for the pur-
poses of the FSIA. In re Rio Grande Transport, Inc., 516 F. Supp. 1155, 1160
(footnote continues)
WAV Ne a RCI
ny
11
Petitioners’ contention that resolution of their claims, even
if it will have no effect on the actual ownership of U.S. land,
will require determination of “the title of Petitioners’ ancestors
as well as Petitioners’ inheritance nghts” and thus “rights in
immovable property” will be “in issue” for purposes of the
FSIA, Pet. at 28, is also unpersuasive. The Court of Appeals
correctly determined that “rights in immovable property” for
the purposes of the FSIA are rights the exercise of which would
“affect property interests in, or nghts to possession of, land.”
Pet. App. at 13a. It also determined that “[n]Jeither the title to,
nor the use of the Texas lands can conceivably be affected by
the outcome of this suit” Jd. at lla. Since determination of
ancestral title rights and inheritance rights would not affect
property interests or give rise to rights of possession, those
rights are not “rights in immovable property” within the
meaning of the FSIA, even if consideration of such issues would
be necessary to a resolution of Petitioners’ claims.4
(footnote continued)
(S.D.N.Y. 1981) (disaster liability compensation fund not FSIA “immovable
property”). Furthermore, claims like Petitioners’ are not “nghts in immov-
able property” under civil law. Actions, like Petitioners’, that cannot directly
affect real property, do not “assert an interest in immovable property.” See
Hawthorne Oil and Gas Corp. v. Continental Oil Co., 377 So.2d 285 (Sup. Ct.
La. 1979) (applying La. venue statute). Mexican law excludes funds owed as
the result of a disposition of a claim in real property from the definition of the
term “immovable.” See Directo 558-61/2, Fortino Lopez Cuevas y Coags., 3rd
Chamber, Supreme Court of Justice, 1965 Rep. at 15.
4 The Court of Appeals’ reading of the “immovable property” exception is
also supported by reference to the execution immunity section, 28 U.S.C.
§ 1610(a)(4)(B). The “immovable property” exception to jurisdictional
immunity, like all other FSIA provisions, exists not in isolation but as a part of
a comprehensive statute that must be read as a whole. Therefore, it must be
interpreted consistently with the FSIA’s exception to general immunity from
attachment and execution upon a foreign state’s property in the United States
where “the execution relates to a judgment establishing rights in property . . .
which is immovable and situated in the United States” 28 U.S.C.
§ 1610(a)(4)(B) (emphasis added). Although the language is somewhat
different, there is no reason to suppose that Congress was attempting to create
shades of difference between the two sections of the statute, or that the two
sections should be read differently.
(footnote continues)
12
3. Application of the “Immovable Property” Ex-
ception
Having established that “rights in immovable property
are, for the purposes of the FSIA’s narrow exception to foreign
sovereign immunity, limited to property interests or nghts to
possession, the Court of Appeals properly turned to the precise
nature of Petitioners’ claims. Pet. App. at 10a-13a. The Court
found that those claims are not
property interests in real estate, such as a leasehold,
easement or servitude, nor possessory rights, nor even
rights to payment of money secured by an interest in
land. Neither the title to, nor the use of the Texas
lands can conceivably be affected by the outcome of
this suit.
Id. at lla. For that reason, the Court of Appeals held that
Petitioners’ claims are outside the scope of the “immovable
property” exception. Id.
Petitioners advance no argument, nor any evidence from
which it can be inferred, that title to, or the possession or use of,
U.S. land will be affected by any outcome of this suit. In the
absence of any basis for characterizing Petitioners’ claims as
ones affecting title, possession or use, the Court of Appeals
correctly concluded that those claims were outside the FSIA.
The FSIA provides the sole basis for subject matter
jurisdiction over suits against foreign states. Verlinden B.V. v.
Central Bank of Nigeria, 461 U.S. 480 (1983).5 Since neither
the “immovable property” nor any other statutory exception to
(footnote continued)
By construing the “in issue” language of the FSIA’s “immovable
property” exception to jurisdictional immunity congruently with the “estab-
lishing rights in” language of the FSIA’s “immovable property” exception to
execution immunity, the Court of Appeals acted in accord with Congress’
intent.
5 See also Ruggiero v. Compania Peruana de Vapores, 639 F.2d 872, 875-
76 (2d Cir. 1981) (Friendly, J.): see also Rex v. Cia. Pervana de Vapores,
S.A., 660 F.2d 61 (3d Cir. 1981), cert. denied, 456 U.S. 926 (1982); Williams
v. Shipping Corp. of India, 653 F.2d 875, 877-81 (4th Cir. 1981). cert. denied,
455 U.S. 982 (1982).
Se ee
13
sovereign immunity applies here, the Court of Appeals properly
found that Petitioners are barred from raising their claims
against Mexico in any United States court.
B. The Court of Appeals Correctly Concluded That the
Comegys and Bachman Cases Do Not Bring Peti-
tioners’ Claims Within the “Immovable Property”
Exception.
Contrary to Petitioners’ assertion, the decision of the Court
of Appeals that Petitioners’ claims do not involve rights in
immovable property within the meaning of the FSIA does not
conflict with any “longstanding rule” established by Comegys v.
Vasse, 26 U.S. (1 Pet.) 193 (1828), or Bachman v. Lawson, 109
U.S. 659 (1884). Comegys and Bachman did not hold that
claims like Petitioners’ involve rights in immovable property.
Nor did they imply or suggest such a thing. In fact, neither
Comegys nor Bachman involved immovable property at all.
Both involved claims arising from the capture of ships and their
cargoes belonging to U‘S. citizens.
Comegys involved a claim that had already been adjudi-
cated by an international claims commission and found to be
meritorious. The only issue was the ownership of that claim
between two private parties (specifically, an assignee in bank-
ruptcy and the bankrupt). In determining which of the parties
owned the claim, this Court considered whether “an in-
demnification for unjust captures is to be deemed ... as in the
nature of a donation, as contrasted with right,” 26 U.S. (1 Pet.)
at 217, and found that, under the Treaty of 1819 with Spain, it
was a right. Because the question was not before it, however,
this Court did not classify that nght.6 Comegys thus has no
bearing on whether Petitioners’ alleged claims are rights in
immovable property within the meaning of the FSIA.
6 To the extent the Court’s language in Comegys expressed a view as to the
nature of the right in issue there, it contradicted Petitioners’ contention. The
Court speaks in terms of “indemnification” and “an existing mght to
compensation,” 26 U.S. (1 Pet.) at 217, not of a mght for recovery that would
constitute a right “in” property, whether movable or immovable.
14
Bachman is of even less relevance. In that case, plaintiffs
sued to collect a fee pursuant to a written agreement that
promised them “‘a compensation equal to twenty-five per cent.
of whatever sum shall be collected” on a claim for com-
pensation for a captured ship, in return for their best efforts to
collect on the claim. 109 U.S. at 660. Subsequent to the
agreement, the defendants independently pursued their rights
with respect to the claim before a tribunal established by the
Treaty of Washington. Rejecting defendants’ argument that
their claim (and thus their obligation to pay plaintiffs) had
been extinguished by that Treaty, this Court held that defend-
ants’ claim before the tribunal was the same claim con-
templated by their agreement with plaintiffs. 109 U.S. at 662.
However, it never held that the right in issue had the same
character it had before submission of the claim to the tribunal,
and never characterized the right as one in property. Thus this
Court has in no way implied that Petitioners’ claims maintain
any character they may once have had as “‘nghts in immovable
property” despite the operation of the 1941 Treaty.
Petitioners’ ultimate conclusion, on the basis of their
reading of Comegys and Bachman, is that, “[a]s an essential
incident of ownership, Petitioners’ families were entitled to be
compensated for any wrongful taking of their land, a mght
neither created nor extinguished by the 1941 Treaty.” Pet. App.
at 16. This proposition is completely irrelevant to the issue of
whether this case is one in which rights in immovable property
within the United States are in issue. Even if such an
“entitle[ ment] to compensa[tion]” exists, thai fact does not
bring it within the FSIA’s “immovable property” exception. To
the contrary, the legislative history and purpose conclusively
demonstrate that such an “entitlement” would be outside the
FSIA.
Moreover, Petitioners’ ultimate conclusion is incorrect.
The 1941 Treaty expressly undertakes to cancel, renounce and
satisfy claims deriving from any such taking. 1941 Treaty, art.
III. This Court has long held that, by espousing a claim of its
national for injuries inflicted by a foreign government, the
Death
15
espousing government makes the claim its own. United States
ex rel. Boynton v. Blaine, 139 U.S. 306, 323 (1890); see also La
Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899);
United States ex rel. Angarica v. Bayard, 127 U.S. 251 (1888);
Great Western Insurance Co. v. United States, 112 U.S. 193
(1884); and Frelinghuysen v. United States ex rel. Key, 110 US.
63 (1882). The espousing government may therefore do with
an espoused claim as it wishes. Williams ». Heard, 140 US.
529 (1890); Frelinghuysen v. United States ex rel. Key, 110 U.S.
at 63; Phelps v. McDonald, 99 U.S. 298 (1878); Frevall v.
Bache, 39 U.S. 95 (1840); The Caldera Cases, 15 Ct. Cl. 546
(1879).
International law likewise provides that:
The government is the sole judge of what claims it
will enforce, and of the manner, time, means and
extent of enforcement. It may refuse to present a
claim at all. After espousal of a claim, the govern-
ment may abandon it, submit it to arbitration or
make any other disposition thereof which it deems
expedient in the public interest, e.g., the government
may compromise it, or release it, without com-
pensation or for a consideration of benefit to the
general public.
E. Borchard, The Diplomatic Protection of Citizens Abroad 366
(1915). See also 6 J. Moore, A Digest of International Law,
1012-27 (1906); L. Henkin, Foreign Affairs and the Con-
Stitution 262-63 (1972); Restatement (Second) of Foreign
Relations Laws of the United States at §§ 212, 213; R. Lillich,
International Claims: Their Adjudication By National Commis-
sions 103 (1962). For this reason, the Court of Appeals
correctly concluded in this case that the claims of Petitioners’
predecessors were, vis-a-vis the United States and Mexico,
“extinguished by the 1941 Treaty.” Pet. App. at 12a.
16
Il. THE DECISION OF THE COURT OF APPEALS
RAISES NO CONSTITUTIONAL ISSUE.
Contrary to Petitioners’ contention, the Court of Appeals’
reading of the 1941 Treaty does not require this Court to
determine whether, in entering into that Treaty, the United
States committed a “taking” for which compensation should be
provided under the Fifth Amendment. Pet. at 18, 19. The
Court of Appeals did not reach that issue. See Pet. App. at I5a
(Edwards, J., concurring). To reach out to that issue in this
action, to which the United States is not a party, would be both
unnecessary and inappropriate. If Petitioners ever sought to
sue the United States in the Court of Claims, it would be soon
enough for that court to reach that issue. Whether Petitioners
can bring such a suit has nothing to do with this case.
CONCLUDING STATEMENT
The Court of Appeals decisively held that the “immovable
property” exception to the FSIA did not apply to Petitioners’
claims. While the Petition has narrowed the focus of this case
to that issue alone, the United Mexican States mevertheless
wishes to bring to this Court’s attention several matters of
special importance.
Retroactivity
The FSIA, enacted in 1976, codifies the principle of
restrictive sovereign immunity, under which a foreign state is
immune from the jurisdiction of U.S. courts except in rare cases
with respect to its commercial and private acts—a principle that
had been adopted by the Department of State as a matter of
practice in 1952. Prior to that time, foreign sovereign states
were absolutely immune from suit in U.S. courts.
To the extent the FSIA has changed the rule of absolute
immunity, it has done so only prospectively. Neither the
language nor the legislative history reveals any “unequivocal
and inflexible intent,” De Rodulfa v. United States, 461 F.2d
17
1240, 1247 (D.C. Cir.), cert. denied, 409 U.S. 949 (1972),
quoting Greene v. United States, 376 U.S. 149 (1964), that the
legislation be retroactively applied. In the absence of that
intent, to modify the immunity to which Mexico would have
been entitled in 1941 and to apply the FSIA retroactively to
claims that allegedly arose at least 35 years prior to its
enactment would be an unfortunate and an unfair result.
Act of State Doctrine
The modern touchstone of the Act of State Doctrine is
judicial deference to the primacy of the executive branch in the
conduct of foreign policy. Alfred Dunhill of London, Inc. v.
Republic of Cuba, 425 U.S. 682 (1976); Banco Nacional de
Cuba v. Sabbatino, 376 U.S. 398 (1964). The essence of the
doctrine is that courts, looking to the nature of a dispute and the
international sensitivity of its issues, should avoid a result that
unduly challenges the sovereign authority of a foreign state’s
government.
It is difficult to envision circumsiances more sensitive or
closely related to official policy of the United Mexican States
than those presented in this case. Petitioners apparently seek to
use the judicial power of the United States to inquire into
numerous facets of Mexico’s exercise of its executive and
legislative prerogatives, and to force actions uniquely within the
competence of the executive and legislative branches of the
government of the United Mexican States. Any such invitation
thus to regulate the internal affairs of a foreign sovereign state
should be declined.
International Law
Any resolution of claims by Petitioners against the United
Mexican States must be governed by the 1941 Treaty, part of
the supreme law of the land under the U.S. Constitution. Any
inconsistent resolution of those claims implicates not only
United States law but international law as well. Petitioners’
attempts, through the use of the U.S. courts, to rewrite the
terms of the 1941 Treaty, or to frustrate its object or purpose, or
to reformulate the bilateral relationships between the United
States and Mexico, should be resisted.
CONCLUSION
For all of the foregoing reasons, the petition for a writ of
certiorari should be denied.
Respectfully submitted,
JOHN H. SHENEFIELD*
DoroTHy ASHLEY DOHERTY
D. STEPHEN MATHIAS
CarROL A. CORCORAN
MILBANK, TWEED, HapLey & McCLoy
1825 Eye Street, 6. W.
Suite 900
Washington. D.C. 20006
(202) 835-7500
Attorneys for Respondent
* Counsel of Record
February 20, 1985
la
APPENDIX A
28 U.S.C.
§ '602. Findings and declaration of purpose
The Congress finds that the determination by United
States courts of the claims of foreign states to immunity from
the jurisdiction of such courts would serve the interests of justice
and would protect the rights of both foreign states and litigants
in United States courts. Under international law, states are not
immune from the jurisdiction of foreign courts insofar as their
commercial activities are concerned, and their commercial
property may be levied upon for the satisfaction of judgments
rendered against them in connection with their commercial
activities. Claims of foreign states to immunity should hence-
forth be decided by courts of the United States and of the States
in conformity with the principles set forth in this chapter.
§ 1603. Definitions
For purposes of this chapter—
(a) A “foreign state”, except as used in section 1608
of this title, includes a political subdivision of a foreign
state or an agency or instrumentality of a foreign state as
defined in subsection (b).
(b) An “agency or instrumentality of a foreign state”
means any entity—
(1) which is a separate legal person, corporate
or otherwise, and 5
(2) which is an organ of a foreign state or
political subdivision thereof, or a majority of whose
shares or other ownership interest is owned by a
foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the
United States as defined in section 1332(c) and (d) of
this title. nor created under the laws of any third
country.
2a
(c) The “United States” includes all territory and
waters, continental or insular, subject to the jurisdiction of
the United States.
(d) A “commercial activity” means either a regular
course of commercial conduct or a particular commercial
transaction or act. The commercial character of an activity
shall be determined by reference to the nature of the
course of conduct or particular transaction or act, rather
than by reference to its purpose.
(e) A “commercial activity carried on in the United
States by a foreign state” means commercial activity
carried on by such state and having substantial contact
with the United States.
§ 1604. Immunity of a foreign state from jurisdiction
Subject to existing international agreements to which the
United States is a party at the time of enactment of this Act a
foreign state shall be immune from the jurisdiction of the courts
of the United States and of the States except as provided in
sections 1605 to 1607 of this chapter.
§ 1605. General exceptions to the jurisdictional immunity of a
foreign state
(a) A foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States in
any case—
(1) in which the foreign state has waived its
immunity either explicitly or by implication, notwith-
standing any withdrawal of the waiver which the
foreign state may purport to effect except in accord-
ance with the terms of the waiver;
(2) in which the action is based upon a com-
mercial activity carried on in the United States by the
foreign state: or upon an act performed in the United
States in connection with a commercial activity of the
foreign state elsewhere: or upon an act outside the
3a
territory of the United States in connection with a
commercial activity of the foreign state elsewhere and
that act causes a direct effect in the United States;
(3) in which rights in property taken in violation
of international law are in issue and that property or
any property exchanged for such property is present in
the United States in connection with a commercial
activity carried on in the United States by the foreign
state; or that property or any property exchanged for
such property is owned or operated by an agency or
instrumentality of the foreign state and that agency or
instrumentality is engaged in a commercial activity in
the United States;
(4) in which rights in property in the United
States acquired by succession or gift or rights in
immovable property situated in the United States are
in issue; or
(5) not otherwise encompassed in paragraph (2)
above, in which money damages are sought against a
foreign state for personal injury or death, or damage
to or loss of property, occurring in the United States
and caused by the tortious act or omission of that
foreign state or of any official or employee of that
foreign state while acting within the scope of his office
or employment; except this paragraph shall not apply
to—
(A) any claim based upon,the exercise or
performance or the failure to exercise or perform a
discretionary function regardless of whether the
discretion be abused, or
(B) any claim arising out of malicious prose-
cution, abuse of process, libel, slander, mis-
representation, deceit, or interference with contract
rights.
4a
(b) A foreign state shall not be immune from the
jurisdiction of the courts of the United ‘States in any case in
which a suit in admiralty is brought to enforce a maritime
lien against a vessel or cargo of the fforeign state, which
maritime lien is based upon a commercial activity of the
foreign state: Provided, That—
(1) notice of the suit is given by delivery of a
copy of the summons and of the complaint to the
person, or his agent, having possession of the vessel or
cargo against which the maritime lien is asserted; but
such notice shall not be deemed ito have been deliv-
ered, nor may it thereafter be dellivered, if the vessel
Or cargo is arrested pursuant to process obtained on
behalf of the party bringing the swit—unless the party
was unaware that the vessel or carigo of a foreign state
was involved, in which event the service of process of
arrest shall be deemed to constitute valid delivery of
such notice; and
(2) notice to the foreign state of the com-
mencement of suit as provided in section 1608 of this
title is initiated within ten days either of the delivery
of notice as provided in subsection (b)(1) of this
section or, in the case of a party who was unaware that
the vessel or cargo of a foreign state was involved, of
the date such party determined the existence of the
foreign state’s interest.
Whenever notice is delivered under subsection (b)(1) of this
section, the maritime lien shall thereafter be deemed to be an in
personam claim against the foreign state which at that time
owns the vessel or cargo involved: Provided, That a court may
not award judgment against the foreign state in an amount
greater than the value of the vessel or cargo upon which the
maritime lien arose, such value to be determined as of the time
notice is served under subsection (b)(1) off this section.
—
ee et
Sa
** * *
§ 1609. Immunity from attachment and execution of property
of a foreign state
Subject to existing international agreements to which the
United States is a party at the time of enactment of this Act the
property in the United States of a foreign state shall be immune
from attachment arrest and execution except as provided in
sections 1610 and 1611 of this chapter.
§ 1610. Exceptions to the immunity from attachment or
execution
(a) The property in the United States of a foreign
state, as defined in section 1603(a) of this chapter, used for
a commercial activity in the United States, shall not be
immune from attachment in aid of execution, or from
execution, upon a judgment entered by a court of the
United States or of a State after the effective date of this
Act, if—
(1) the foreign state has waived its immunity
from attachment in aid of execution or from execution
either explicitly or by implication, notwithstanding
any withdrawal of the waiver the foreign state may
purport to effect except in accordance with the terms
of the waiver, or
(2) the property is or was used for the com-
mercial activity upon which the claim is based, or
(3) the execution relates to a judgment estab-
lishing rights in property which has been taken in
violation of international law or which has been
exchanged for property taken in violation of inter-
national law, or
(4) the execution relates to a judgment estab-
lishing nghts in property—
(A) which is acquired by succession or gift.
or
6a
(B) which is immovable and situated in the
United States: Provided, That such property is not
-used for purposes of maintaining a diplomatic or
consular mission or the residence of the Chief of
such mission, or
(5) the property consists of any contractual
obligation or any proceeds from such a contractual
obligation to indemnify or hold harmless the foreign
state or its employees under a policy of automobile or
other liability or casualty insurance covering the claim
which merged into the judgment.
(b) In addition to subsection (a), any property in the
United States of an agency or instrumentality of a foreign
State engaged in commercial activity in the United States
shall not be immune from attachment in aid of execution,
or from execution, upon a judgment entered by a court of
the United States or of a State after the effective date of
this Act, if—
(1) the agency or instrumentality has waived its
immunity from attachment in aid of execution or from
execution either explicitly or implicitly, notwithstand-
ing any withdrawal of the waiver the agency or
instrumentality may purport to effect except in accord-
ance with the terms of the waiver, or
(2) the judgment relates to a claim for which the
agency or instrumentality is not immune by virtue of
section 1605(a)(2), (3), or (5), or 1605(b) of this
chapter, regardless of whether the property is or was
used for the activity upon which the claim is based.
(c) No attachment or execution referred to in subsec-
tions (a) and (b) of this section shall be permitted until
the court has ordered such attachment and execution after
having determined that a reasonable period of time has
elapsed following the entry of judgment and the giving of
any notice required under section 1608(e) of this chapter.
7a
(d) The property of a foreign state, as defined in
section 1603(a) of this chapter, used for a commercial
activity in the United States, shall not be immune from
attachment prior to the entry of judgment in any action
brought in a court of the United States or of a State, or
prior to the elapse of the period of time provided in
subsection (c) of this section, if—
(1) the foreign state has explicitly waived its
immunity from attachment prior to judgment, not-
withstanding any withdrawal of the waiver the foreign
state may purport to effect except in accordance with
the terms of the waiver, and
(2) the purpose of the attachment is to secure
satisfaction of a judgment that has been or may
ultimately be entered against the foreign state, and not
to obtain jurisdiction.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.