Appendix — Abrams v. Societe Nationale des Chemins de Fer Francais

la

DECISION OF THE UNITED STATES COURT OF AP-

PEALS FOR THE SECOND CIRCUIT

DATED NOVEMBER 9, 2004

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2002

(Argued: October 3, 2002 Decided: June 13, 2003)

(Vacated and Remanded: June 14, 2004)

(Decided: November 9, 2004)

Docket No. 01-9442

RAYMONDE ABRAMS, NICOLE B. SILBERKLEIT,

JANET HERMAN, LILY REDNER, BERNARD CARON,

ERNEST HAAR, HARRY CYBULSKI,

YVONNE LITMAN,

CASSANDRA KIRBY CONAHAY FREUND,

JEAN JACQUES FRAENKEL, LILIANE LICHTETEIN,

MARIE WEINRAUCH,

Plaintiffs-Appellants,

v.

SOCIETE NATIONALE DES CHEMINS DE FER

FRANCAIS,

Defendant-Appellee.

2a

Before: CARDAMONE, MINER, and SOTOMAYOR,

Cireuit Judges.

On remand from the United States Supreme Court,

which vacated and remanded for further consideration in

light of Republic of Austria v. Altmann, 541 U.S. __, 1248S.

Ct. 2240 (2004). We recall our prior mandate and now affirm

the district court's dismissal of plaintiffs' complaint.

Affirmed:

Stephen T. Rodd, Abbey Gardy, LLP, New York, New York

(Harriet Tamen, Hurt, Levine & Papadakis, New

York, New York; Professor Richard H. Weisberg,

Benjamin Cardozo School of Law, New York, New

York; Professor Lucille A. Roussin, New York, New

York; Clifford James, Fensterstock & Partners, LLP,

New York, New York; Professor Malvina

Halberstam, Benjamin Cardozo School of Law, New

York, New York; Gregory L. Tesoro, New York,

New York, of counsel), filed a letter brief for

Plaintiffs-Appellants.

Professor Andreas F. Lowenfeld, New York University

School of Law, New York, New York (Professor

Linda J. Silberman, New York University School of

Law, New York, New York; Steven C. Bennett,

Jones Day, New York, New York, of counsel), filed a

letter brief for Defendant-Appellee.

Sharon Swingle, U.S. Department of Justice, Civil Division,

Washington, D.C., filed a letter brief for the United

States of America as Amicus Curiae.

PER CURIAM:

3a

The named plaintiffs brought suit, individually and on

behalf of other Holocaust victims and their heirs and benefi-

Ciaries, against the French national railroad company, Societe

Nationale des Chemins de Fer Francais (SNCF or railroad).

Plaintiffs allege that SNCF has committed war crimes and

crimes against humanity, under customary international law

and the law of nations, by knowingly transporting tens of

thousands of French civilians to Nazi death and slave labor

camps. During the time when these atrocities were commit-

~ ted, SNCF remained under independent civilian control. It

has since been wholly acquired by the French government.

Plaintiffs filed their complaint in the United States Dis-

trict Court for the Eastern District of New York before Judge

David G. Trager. The district court dismissed plaintiffs'

claims, based on its conclusion that it lacked subject matter

jurisdiction because SNCF was an "agency or instrumentality

of a foreign state" under the Foreign Sovereign Immunities

Act of 1976 (FSIA or Act), 28 U.S.C. § 1603(b) (1976). It

ruled that none of the Act's exceptions for foreign sovereign

immunity applied. Abrams v. Société Nationale des Chemins

de Fer Francais, 175 F. Supp. 2d 423, 433 (E.D.N.Y. 2001).

Plaintiffs appealed to this Court, contending that the applica-

tion of the Act to their claims is impermissibly retroactive.

Plaintiffs have maintained that the jurisdictional and immu-

nity questions should be resolved based on the laws in effect

at the time of the alleged misconduct and, hence, that SNCF

was not entitled to sovereign immunity as it was a private

entity separate and distinct from the French government.

Plaintiffs also cross-moved for further discovery on the im-

munity issue.

We vacated the district court's order and remanded for

further proceedings. Abrams v. Société Nationale des

Chemins de Fer Francais, 332 F.3d 173 (2d Cir. 2003). In

agreement with the district court's threshold determination,

we first held that SNCF is an agency or instrumentality of

France under the FSIA. But, we further held that the record

was insufficient to determine whether the FSIA applies to

pre-enactment conduct. Specifically, we ruled that the issue

of subject matter jurisdiction could not be resolved in the

4a

absence of information with respect to the State Department's

position during World War II on the significance of the cor-

porate form in foreign sovereign immunity determinations.

We also believed that information on whether the State De-

partment would have recognized immunity in a case such as

the one before us would be a relevant consideration.

The United States Supreme Court granted the defendant's

petition for a writ of certiorari. Société Nationale des

Chemins de Fer Francais v. Abrams, 541 U.S. __, 124 S.

Ct. 2834 (2004). The Court vacated our decision and re-

manded for further consideration in light of Republic of Aus-

tria v. Altmann, 541 U.S. __, 124 S. Ct. 2240 (2004).

Thereafter, at our request, the parties filed supplemental

briefs.

DISCUSSION

We have now reconsidered this case in light of Altmann.

In Altmann, the Supreme Court held that the FSIA applies to

conduct prior to its enactment and prior to the State Depart-

ment's 1952 adoption of the restrictive theory of sovereign

immunity. The Court reasoned that deference to the Act's

foreign sovereign immunity determinations was appropriate

even where the Act postdates the conduct in question (as it

does here), because the purpose of sovereign immunity is not

to assist foreign states in "shaping their conduct in reliance

on the promise of future immunity,” but "to reflect[] current

political realities and relationships." /d. at 2252. In so doing,

the Court concluded that the retroactivity analysis established

in Landgraf v. USI Film Products, 511 U.S. 244 (1994), and

upon which this panel had relied, was inappropriate. Further,

the Supreme Court stated that the Act's preamble, as well as

its overarching thematic structure, indicated Congress’ design

for the Act to apply retroactively. Altmann, 124 S. Ct. at

2253-54.

After Altmann, it is no longer necessary to rely upon the

State Department's past determinations in ascertaining

whether FSIA's application to pre-enactment wrongdoing is

impermissibly retroactive. Indeed, in its holding, the Su-

preme Court expressly disapproved of this historical ap-

proach, which a number of Circuits had previously utilized.

Sa

Id. at 2254. The Court's sanctioning of continued involve-

ment from the State Department refers only to certain situa-

tions, which are inapplicable here. Jd. at 2255. That is, the

views of the State Department are likely only relevant when

a court has subject matter jurisdiction and yet there is still

strong executive interest in granting immunity or there is an

ambiguity regarding an FSIA exception.

In their supplemental briefing, appellants argue that a

distinction can be drawn between SNCF and the Altmann

defendants in that the former, unlike the latter, was a non-

governmental entity at the time of the alleged misconduct.

This fact is immaterial after Altmann. In determining immu-

nity of a foreign sovereign, Altmann deems irrelevant the

way an entity would have been treated at the time of the al-

leged wrongdoing. Thus, the distinction between a corporate

entity and a government entity now only speaks to whether

the tortfeasor is a sovereign, or alternatively an "agent" or

"instrumentality" of the sovereign, and hence to whether

FSIA is applicable at all. While SNCF was predominantly

owned by civilians during World War II, it is now wholly-

owned by the French government and, as we have previously

ruled, is an "agent" or "instrumentality" of France under the

FSIA. Abrams, 332 F.3d at 180; see also Dole Food Co. v.

Patrickson, 538 U.S. 468, 480 (2003) (holding unequivocally

that an entity's status as an instrumentality of a foreign state

should be "determined at the time of the filing of the com-

plaint"). Once the railroad is encompassed by the FSIA, its

prior incarnation as a private entity does not bar the statute's

retroactive application.

Appellants misapprehend the A/tmann holding by stating

that it "turns upon the fact that the foreign government en-

joyed no settled expectation in avoiding suit." Appellants

maintain that Altmann analyzed the relevant historical expec-

tations of the parties and that we should do the same to find

that SNCF, as a private entity at the time of the alleged

wrongdoing, had no expectation of immunity. The Supreme

Court stated, to the contrary, that reliance interests are inap-

plicable in assessing the retroactivity of sovereign immunity

principles because immunity simply "reflects current political

realities and relationships." A/tmann, 124 S. Ct. at 2252.

6a

Finally, appellants contend that principles of grace and

comity do not apply to SNCF because it was a private entity.

Yet, government instrumentalities are entitled to these inter-

national norms, and the Dole Food Court's holding eviscer-

ates any possibility that SNCF could escape characterization

as such. See 538 U.S. at 480. In fact, appellant's emphasis

upon the narrow "sui generis" context of Altmann overlooks

the fact that the FSIA now encompasses separate entities that

have since been acquired by government entities. See

Altmann, 124 S. Ct. at 2252 ("In this sui generis context, we

think it more appropriate, absent contraindications, to defer

to the most recent such decision -- namely, the FSIA -- than

to presume that decision inapplicable merely because it post-

dates the conduct in question.").

While appellants may be correct in asserting that "apply-

ing the FSIA to impair plaintiffs nights against a separate

corporation engaged in commercial activity would be

impermissibly retroactive," the same cannot be said for the

case of a separate corporation that has since been acquired by

a sovereign. We are bound by the Supreme Court's decision

to defer to comity rather than to approach the situation from

the perspective of the injured plaintiffs whose rights have

now been altered. Accordingly, the evil actions of the French

national railroad's former private masters in knowingly trans-

porting thousands to death camps during World War II are

not susceptible to legal redress in federal court today, be-

cause defendant has since become a part of the French gov-

ernment and is therefore immunized from suit by the Foreign

Sovereign Immunities Act. Nonetheless, the railroad's con-

duct at the time lives on in infamy.

CONCLUSION

For the reasons explained above, we recall our mandate

issued to the district court in Abrams, 332 F.3d 173 (2d Cir.

2003), and thereby affirm the district court's dismissal of

plaintiffs’ complaint for lack of subject matter jurisdiction.

Affirmed.

7a

DECISION OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

DATED JUNE 13, 2003

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2002

(Argued: October 3,2002 Decided: June 13, 2003)

Docket No. 01-9442

RAYMONDE ABRAMS, NICOLE B. SILBERKLEIT,

JANET HERMAN, LILY REDNER, BERNARD CARON,

ERNEST HAAR, HARRY CYBULSKI,

YVONNE LITMAN,

CASSANDRA KIRBY CONAHAY FREUND,

JEAN JACQUES FRAENKEL, LILIANE LICHTETEIN,

MARIE WEINRAUCH,

Plaintiffs-Appellants,

v.

SOCIETE NATIONALE DES CHEMINS DE FER

FRANCAIS,

Defendant-Appellee.

Before: CARDAMONE, MINER, and SOTOMAYOR,

Circuit Judges.

8a

7 a *

CARDAMONE, Circuit Judge.

The named plaintiffs have brought this action individu-

ally and on behalf of other similarly situated Holocaust vic-

tims and their heirs against the French railroad company

Societe Nationale des Chemins de Fer Francais (SNCF or

railroad). The action arises out of SNCF's 1942-1944 opera-

tion of trains that transported tens of thousands of French

civilians to the infamous Nazi death and slave labor camps.

Plaintiffs allege that in so doing SNCF committed war

crimes and crimes against humanity under customary interna-

tional law and the law of nations. Customary international

law, plaintiffs further allege, is enforceable in federal district

court as federal common law.

Plaintiffs filed their complaint in the United States Dis-

trict Court for the Eastern District of New York before Judge

David G. Trager on September 12, 2000. When SNCF

moved to dismiss it for_lack of subject matter jurisdiction,

the district court granted the motion, ruling that SNCF was

an "agency or instrumentality of a foreign state" as that term

is defined in the Foreign Sovereign Immunities Act of 1976

(FSIA or Act), 28 U.S.C. § 1603(b), and that, because plain-

tiffs' claims did not fall within any of the Act's exceptions to

foreign sovereign immunity, it was without jurisdiction to

adjudicate them. Abrams v. Societe Nationale des Chemins

de Fer Francais, 175 F. Supp. 2d 423, 428-29, 450

(E.D.N.Y. 2001). On appeal, as in district court, plaintiffs

urge that the FSIA does not apply to this case because it

arises out of events predating the statute's 1976 enactment.

BACKGROUND

The following facts are alleged in the complaint and are

accepted as true, as they must be at this stage of the litiga-

tion. SNCF, the national railway of France, was created in

the late 1930s by consolidation of five then-existing French

regional rail networks. Today it is operated as a separate le-

gal entity wholly-owned by the French government. During

the Nazi occupation of France the railroad remained under

BES ARN LS Bah Sack aT UNSERE NT EAE AN se REE TRE. Naa Noe IRE LO Ee SNP at ai

9a

civilian control and preserved its independence by collabo-

rating with the German authorities and by accommodating

their transportation needs.

In March 1942 at the request of those authorities, SNCF

began to operate trains deporting Jews and other so-called

"undesirables" from France to Nazi concentration camps. In

exchange for this assistance, the railroad was allowed to con-

tinue its operations and was paid for the transport it pro-

vided. The conditions inside the deportation trains were in-

humane and frequently fatal to passengers who were often

carried in cattle cars. Sanitation facilities were limited or

nonexistent and passengers had to endure extreme heat and

cold. Many did not live to the journey's end. By the time the

Nazi occupation of France was over, SNCF had conveyed

more than 72 deportation convoys, taking to concentration

camps 75,000 Jews and tens of thousands of others. Fewer

than three percent of those deported survived. The trains' ul-

timate destinations included unspeakable places like Dachau

and Auschwitz, an¢ these destinations and the conditions of

travel were well known to those running the railroad.

The named plaintiffs are either survivors of those depor-

tations or their heirs and descendants. They commenced suit

against SNCF both in their individual capacities and on be-

half of a putative class of all members of the civilian popula-

tion of France transported by SNCF to the Nazi camps, and

their respective heirs and beneficiaries. The complaint sought

compensatory and punitive damages as well as disgorgement

of wrongfully obtained profits.

The railroad moved to dismiss the complaint on two

grounds: first, it asserted that federal courts in the United

States had no subject matter jurisdiction over plaintiffs’

causes of action; second, it contended it was entitled to sov-

ereign immunity, both under the FSIA and under the laws in

effect during World War II. In support of its motion, SNCF

submitted affidavits from its attorneys containing informa-

tion regarding the railroad's present organization and owner-

ship. The railroad's attorneys confirmed that it is now orga-

nized as a separate legal entity, which is wholly-owned and

controlled by the French government.

10a

In opposing the motion to dismiss their complaint, plain-

tiffs contended that applying the Act to their claims would be

impermissibly retroactive, and that questions of jurisdiction

and immunity should be resolved based on laws in effect in

the 1940s at the time the railroad's underlying conduct oc-

curred. Under those laws, plaintiffs maintain, SNCF was not

entitled to sovereign immunity because it was organized as a

corporate entity separate and distinct from the French gov-

ernment. Plaintiffs also cross-moved for discovery, declaring

that whether SNCF is entitled to immunity cannot be re-

solved based on the existing record.

In granting SNCF's motion to dismiss and denying plain-

tiffs' cross-motion for discovery the district court first found

that the railroad fits on all fours into the definition of an

agency or instrumentality of a foreign state under the terms

of the Act. Substantially adopting the reasoning in Princz v.

Federal Republic of Germany, 307 U.S. App. D.C. 102, 26

F.3d 1166 (D.C. Cir. 1994), it further ruled that, to the extent

that the Act defines the scope of federal courts' jurisdiction

over claims against foreign states, the statute applies to ac-

tions commenced after its enactment regardless of when the

underlying conduct occurred. The district court further ruled

that the FSIA's jurisdictional grant does not encompass plain-

tiffs’ cause of action. Abrams, 175 F. Supp. 2d at 450. It

found it unnecessary to decide whether plaintiffs could have

brought their cause under laws in effect in the 1940s. /d. at

446.

Although we agree with the district court that SNCF is an

agency or instrumentality of France under the FSIA, the ex-

isting record is insufficient for us to resolve the question of

whether that Act's application to plaintiffs’ causes of action

_ would be impermissibly retroactive. Hence, we vacate and

remand.

DISCUSSION

I. Standard of Review

Upon reviewing a district court's determination with re-

spect to its subject matter jurisdiction under the FSIA, we

examine the court's legal conclusions de novo and its factual

lla

findings for clear error. Robinson v. Gov't of Malay., 269

F.3d 133, 138 (2d Cir. 2001). Because the district court did

not have to make any factual findings, and dismissed the

complaint solely on its resolution of questions of law, our

review is de novo.

I]. Foreign Sovereign Immunity in Federal Courts

A. Prior to the FSIA's Enactment

Foreign sovereign immunity has been a recognized doc-

trine of American law since the seminal Supreme Court case

The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch)

116, 3 L. Ed. 287 (1812). In The Schooner Exchange, two

American citizens claimed ownership of a ship they alleged

had been wrongfully seized by the French navy. The United

States Attorney for the District of Pennsylvania filed a sug-

gestion of immunity with the district court, thereby raising a

question of sovereign immunity. /d. at 117-18. The Supreme

Court agreed that immunity existed and dismissed the Amer-

icans' claim to the ship. /d. at 147. In an opinion by Chief

Justice Marshall, the Court explained that the "perfect equal-

ity and absolute independence" of sovereign nations required

that United States courts refrain from exercising jurisdiction

over claims against other states. /d. at 137.

From that beginning until the FSIA's enactment in 1976,

the executive branch played a prominent role in deciding

whether a foreign sovereign was immune from suit in Ameri-

can courts. See Verlinden B.V. v. Cent. Bank of Nig., 461

U.S. 480, 486-87, 76 L. Ed. 2d 81, 103 S. Ct. 1962 (1983);

Restatement (Third) of Foreign Relations Law of the United

States [hereafter Restatement 3d] pt. IV, ch. 5, subch. A, in-

troductory note (1987). Foreign states sued in the United

States often requested that the Department of State ask the

Department of Justice to file a suggestion of immunity with

the courts. See Restatement 3d, pt. IV, ch. 5, subch. A, intro-

ductory note.

Courts, for their part, usually deferred to the decision of

the executive, reasoning that the preferable method of resolv-

ing disputes with friendly foreign states is not litigation but

diplomatic negotiation, a matter within the authority and ex-

12a

pertise of the executive branch. See Ex parte Republic of

Peru, 318 U.S. 578, 586-87, 87 L. Ed. 1014, 63 S. Ct. 793

(1943); see also Republic of Mexico v. Hoffman, 324 U.S.

30, 35, 89 L. Ed. 729, 65 S. Ct. 530 (1945) (reasoning that

"the courts should not so act as to embarrass the executive

arm in its conduct of foreign affairs"). In the 1940s, the Su-

preme Court expressly endorsed deference to the executive

as "a guiding principle in determining whether a court should

exercise or surrender its jurisdiction in such cases." Hoffman,

324 US. at 35; see also Peru, 318 U.S. at 586-87 (accepting

a claim of immunity where the Secretary of State had under-

taken to settle the dispute through diplomatic channels).

Prior to 1952, the United States adhered to the absolute

theory of foreign sovereign immunity. See Restatement 3d,

pt. IV, ch. 5, subch. A, introductory note. Under that theory,

a sovereign cannot be sued in the courts of another state

without that sovereign's consent, regardless of the nature of

the activity giving rise to the action. See Letter from Jack B.

Tate, Acting Legal Adviser, Department of State, to Philip B.

Perlman, Acting Attorney General of the United States (May

19, 1952) [hereafter Tate Letter], reprinted in Alfred Dunhill

of London, Inc. v. Republic of Cuba, 425 U.S. 682, 711-15,

48 L. Ed. 2d 301, 96 S. Ct. 1854 (1976). As foreign states

increasingly began to participate in international commerce,

an alternative to the theory of absolute immunity emerged

called the restrictive theory of sovereign immunity. See Re-

statement 3d pt. IV, ch. 5, subch. A, introductory note. Under

that theory, a foreign state is immune from claims arising out

of the state's governmental activities, but not immune from

claims arising out of its commercial activities. See id. § 451,

cmt. a. The United States adopted the restrictive theory in

1952 when the Department of State announced its formal

change of policy in a letter from Acting Legal Adviser Jack

Tate to the Acting Attorney General. See Tate Letter, re-

printed in Alfred Dunhill, 425 U.S. at 714.

After the Tate Letter, the State Department continued to

decide most of foreign states’ immunity claims. In those

cases where the foreign government did not request the State

Department's intervention, the duty to resolve the immunity

question in the first instance fell to the courts. Verlinden, 461

l3a

U.S. at 487. Sovereign immunity determinations were thus

made in two different branches of government resulting in

rules that were neither clear nor uniform. Jd. at 488; see also

Danny Abir, Foreigr Sovereign Immunities Act: The Right to

a Jury Trial in Suits Against Foreign Government-Owned

Corporations, 32 Stan. J. Int'l L. 159, 165 (1996) (discussing

difficulties in application of the restrictive theory between

1952 and 1976); William R. Dorsey, III, Reflections on the

Foreign Sovereign Immunities Act After Twenty Years, 28 J.

Mar. L. & Com. 257, 259-60 (1997) (same). Litigation of

claims against foreign states was further complicated by the

absence of effective procedures for service of process and by

the lack of satisfactory standards for execution of judgments

against foreign states. See Abir, supra, at 165; Dorsey, su-

pra, at 260.

As a result of these inadequacies Congress in 1976 en-

acted the FSIA, a statute aimed "to free the Government from

the case-by-case diplomatic pressures, to clarify the govern-

ing standards, and to ‘assure litigants that . . . decisions are

made on purely legal grounds and under procedures that in-

sure due process." Verlinden, 461 U.S. at 488 (quoting H.R.

Rep. No. 94-1487, at 7 (1976), reprinted in 1976

U.S.C.C.A.N. 6604, 6606).

B. The FSIA

The Act was designed to codify the restrictive theory of

sovereign immunity and to remove the subject from diplo-

matic pressures by transferring such decisions to the judi-

ciary. Standards were imposed for serving process, obtaining

personal jurisdiction, and executing judgment in an action

against a foreign state. See H.R. Rep. No. 94-1487 [hereafter

House Report], at 7-8 (1976), reprinted in 1976

U.S.C.C.A.N. 6604, 6605-06. For purposes of our analysis,

the Act can be divided into three main parts: (1) statement of

jurisdiction of the federal courts, (2) exclusions from juris-

diction and definition of immunities, and (3) other standards

and rules. See Restatement 3d pt. IV, ch. 5, subch. A, intro-

ductory note. While the third group of provisions is largely

irrelevant in the instant case, the first two parts warrant a

brief overview.

14a

1. Statement of Jurisdiction

The FSIA added to Title 28 of the United States Code a

new jurisdiction-conferring provision, § 1330. Section 1330

granted federal district courts "original jurisdiction without

regard to amount in controversy of any nonjury civil action

against a foreign state as defined in section 1603(a) of this

title as to any claim for relief in personam with respect to

which the foreign state is not entitled to immunity either un-

der sections 1605-1607 of this title [the immunity-defining

provisions] or under any applicable international agreement."

Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-

583, § 2, 1976 U.S.C.C.A.N. (90 Stat.) 2891, 2891 (codified

at 28 U.S.C. § 1330). The statutory definition of a foreign

state includes its agencies and instrumentalities. See 28

U.S.C. § 1603(a).

The FSIA also amended the diversity jurisdiction provi-

sion, § 1332. That amendment eliminated jurisdiction over

actions against foreign states, and this section refers now

only to suits where a foreign state is a plaintiff. See FSIA §

3, 1976 U.S.C.C.A.N. (90 Stat.) at 2891 (codified at 28

U.S.C. § 1332). The House Report explained that, because

under the FSIA "jurisdiction in actions against foreign states

is comprehensively treated by the new section 1330, a similar

jurisdictional basis under section 1332 [became] superflu-

ous." House Report at 14, reprinted in 1976 U.S.C.C.A.N. at

6613.

The Act did not expressly amend other jurisdiction-grant-

ing statutes. In Argentine Republic v. Amerada Hess Ship-

ping Corp., 488 U.S. 428, 102 L. Ed. 2d 818, 109 S. Ct. 683

(1989), the Supreme Court rejected an argument that this

silence indicated Congress’ intent to retain claims against

foreign states within the scope of jurisdictional provisions

other than the new § 1330, such as the general admiralty and

maritime jurisdiction statute, 28 U.S.C. § 1333(1), or the

Alien Tort Claims Statute, 28 U.S.C. § 1350. Relying on the

FSIA's comprehensiveness, as well as on its language and

legislative history, the Court held that, after the FSIA's enact-

ment, that statute "provides the sole basis for obtaining juris-

1Sa

diction over a foreign state in federal court." /d. at 439. Fur-

ther, Congress did not have to amend all other existing juris-

dictional statutes to ensure the Act's exclusivity. Unlike the

diversity provision, other statutes conferring jurisdiction in

general terms on district courts had not previously expressly

provided for suits against foreign states. Jd. at 437 n.5. Thus,

the Court concluded, Congress stated that "claims of foreign

states to immunity should henceforth be decided by courts of

the United States in conformity with [the FSIA],’ and very

likely it thought that should be sufficient." Jd. at 437-38

(quoting 28 U.S.C. § 1602).

2. Exclusions From Jurisdiction and Definition of

Immunities

The Act added to Title 28 a new chapter, §§ 1602-1611,

in which it set out a comprehensive set of standards for fed-

eral and state courts’ determinations of foreign sovereigns’

claims of immunity. See FSIA § 4, 1976 U.S.C.C.A.N. (90

Stat.) at 2891-97 (codified at 28 U.S.C. §§ 1602-1611);

House Report at 14, reprinted in 1976 U.S.C.C.A.N. at 6613.

The newly added § /604 declares that, subject to existing

international agreements to which the United States was a

party at the time of the FSIA's enactment, foreign states are

immune from the federal and state courts’ jurisdiction unless

the FSIA itself provides otherwise. See § 1604.

Section 1605 then lists general exceptions io immunity

consistent with the restrictive theory. See id. § 1605. For

example, it provides that foreign states are not immune from

claims arising out of their commercial activities within the

United States or out of their commercial activities elsewhere

that cause a direct effect in the United States. See id. §

1605(a)(2). Sections 1606 and 1607 address the scope of for-

eign states’ exposure to liability for punitive damages and to

counterclaims. See id. §§ 1606-07.

III. Role of the FSIA in This Appeal

In their complaint plaintiffs alleged federal subject matter

jurisdiction under two statutes: the federal question statute,

28 U.S.C. § 1331, and the Alien Tort Claims Statute, 28

U.S.C. § 1350, which confers on district courts original ju-

l6a

risdiction over "any civil action by an alien for a tort only,

committed in violation of the law of nations or a treaty of the

United States," id. The Supreme Court's holding in Amerada

Hess instructs that, if the FSIA applies, neither of the men-

tioned statutes can serve as a jurisdictional predicate for this

action, and district courts may entertain the case based solely

on the jurisdictional provision of the FSIA, 28 U.S.C. §

1330. 488 U.S. at 443. As noted, that section gives district

courts jurisdiction over claims against foreign states only

when such claims fall within the FSIA's exceptions to the

general grant of immunity for foreign states.

Here, the trial court ruled that none of those exceptions

applies. Plaintiffs do not contest this ruling, agreeing that if

the FSIA applies, the district court has no jurisdiction. The

thrust of their argument is that the FSIA does not apply to

their claims. Thus, we turn now to the first of the two issues

determinative of the Act's applicability -- SNCF's status as a

state actor.

IV. Railroad's Status as French Agency or In-

strumentality

Because the Act applies to claims brought against for-

eign states, their political subdivisions, and their agencies

and instrumentalities, see 28 U.S.C. § 1603(a), deciding

whether it applies in this case presents the threshold issue of

whether SNCF is an agency or instrumentality of France. The

district court concluded that it is. We agree.

Under the Act, an entity is an agency or instrumentality

of a foreign state if it meets the following three requirements:

first, it must be "a separate legal person, corporate or other-

wise"; second, it must be "an organ of a foreign state or polit-

ical subdivision thereof, or a majority of [its] shares or other

ownership interest [must be] owned by a foreign state or po-

litical subdivision thereof"; third, it must be "neither a citizen

of a State of the United States . . . nor created under the laws

of any third country." /d. § 1603(b).

In the case at hand, the complaint and the documents

submitted by the parties clearly establish that SNCF has had

the required characteristics of an agency or instrumentality of

17a

France throughout the course of this litigation. It is undis-

puted that SNCF is now -- and was at the time the complaint

was filed -- a separate legal entity, wholly-owned by the

French government, neither organized under the laws of any

third country nor a citizen of any state of the United States.

The evidence in the record does not establish, however,

that SNCF also had these three characteristics during World

War II. For example, though the railroad's brief asserts that

the French state owned 51 percent of the company between

1938 and 1982, no affidavits or documents in the record sup-

port this statement. This absence of proof regarding the rail-

road's status during World War II raises the question: Is the

fact that the defendant entity fits the FSIA's definition of an

agency or instrumentality of a foreign state at the time of the

litigation sufficient to require the Act's application to the

case, regardless of that entity's organization and ownership at

the time of the alleged wrongdoing?

The issue was unresolved in our Circuit both at the time

of the district court's decision in this case and at the time the

parties briefed and argued the present appeal. After the oral

argument, however, the Supreme Court decided Dole Food

Co. v. Patrickson, 155 L. Ed. 2d 643, 123 S. Ct. 1655 (2003),

holding unequivocally that an entity's status as an instrumen-

tality of a foreign state should be "determined at the time of

the filing of the complaint." /d. at 1663. Because the record

clearly establishes that SNCF was an agency or instrumental-

ity of France at the time the complaint was filed, it is an

agency or instrumentality of a foreign state as defined in

§ 1603(b).

V. Retroactivity

We pass now to the second question that we must re-

solve: whether the Act may be applied to this case even

though the underlying events occurred before that statute's

enactment. Citing the Supreme Court's decisions in Landgraf

v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114

S. Ct. 1483 (1994), and Hughes Aircraft Co. v. United States,

520 U.S. 939, 138 L. Ed. 2d 135, 117 S. Ct. 1871 (1997),

plaintiffs declare Congress did not unequivocally express its

aim that the Act apply to pre-enactment events. In the ab-

/

18a

sence of such an unequivocal statement, they continue, appli-

cation of the statute to their claims would be impermissibly

retroactive as it would impair their antecedent rights and set-

tled expectations. We agree there is no unequivocal state-

ment, but find the existing record insufficient to assess the

accuracy of plaintiffs’ retroactivity argument.

A. Governing Legal Principles

1. Landgraf/Lindh Framework

In Landgraf, the Supreme Court established a two step

approach to determining whether a statute applies to events

predating its enactment. First, a court must ask "whether

Congress has expressly prescribed the statute's proper reach.”

511 U.S. at 280. If Congress has done so, the inquiry ends. If

not, the court must determine whether applying the statute to

pre-enactment events "would have retroactive effect, i.e.,

whether it would impair rights a party possessed when he

acted, increase a party's liability for past conduct, or impose

new duties with respect to transactions already completed.”

Id. lf the statute's application would have such an effect, the

court must decline to apply it. /d. This traditional presump-

tion against retroactive legislation, Landgraf explained, is

rooted in fundamental notions of fairness which dictate that

“settled expectations should not be lightly disrupted" and

"that individuals should have an opportunity to know what

the law is and to conform their conduct accordingly.” /d. at

265.

Lindh v. Murphy, 521 U.S. 320, 138 L. Ed. 2d 481, 117

S. Ct. 2059 (1997), elaborated on Landgraf, holding that the

normal rules of construction generally apply when a court

determines the temporal reach of a statute. /d. at 326. Absent

a clear and express Congressional directive to apply a statute

retroactively, the Court stated, applying a statute to pre-en-

actment events may be inappropriate for more than one rea-

son. First, as discussed in Landgraf, such application could

produce a retroactive effect, and therefore be barred by the

customary presumption against retroactivity. In addition,

other regular rules of statutory interpretation could "remove

even the possibility of retroactivity," by revealing that Con-

gress planned solely for a prospective application. /d. For

19a

example, in Lindh, an amendment to the habeas corpus stat-

ute was held inapplicable to non-capital cases pending at the

time of the amendment's enactment. The Court noted that a

simultaneously enacted provision on capital cases expressly

required application to then-pending cases, and reasoned that

this express requirement, by negative implication, showed

that the amendments pertinent to non-capital cases were

meant to apply only to cases filed after the amendments' en-

actment. /d. at 326-37.

After Lindh, therefore, a court faced with a retroactivity

claim that survived the first step of the Landgraf analysis

may not have to decide whether the statute produces a retro-

active effect. Instead, by referring to other rules of statutory

interpretation, the court may find the statute inapplicable to

pre-enactment events.

2. Applicability of Landgraf to New

Jurisdiction-Allocating Legislation

SNCF avers the Landgraf analysis does not apply to

those aspects of the FSIA that govern federal courts’ jurisdic-

tion, that is, the enactment of the exclusive jurisdictional ba-

sis for claims against foreign states set out in § 1330 and the

simultaneous exclusion of such claims from other general

jurisdictional provisions. We disagree with the railroad's con-

tention.

in Landgraf, the Supreme Court recognized that, "even

absent specific legislative authorization, application of new

statutes passed after the events in suit 1s unquestionably

proper in many situations." 511 U.S. at 273. The Court noted

jurisdiction-conferring and jurisdiction-ousting statutes as an

example of statutes often properly applied to pre-enactment

events. "Application of a new jurisdictional rule," the Court

instructed, "usually takes away no substantive nght but sim-

ply changes the tribunal that is to hear the case.” /d. at 274.

Further, "present law normally governs in such situations

because jurisdictional statutes speak to the power of the court

rather than to the rights or obligations of the parties." /d.

Landgraf did not suggest that all jurisdiction-defining

statutes should be applied to all currently pending lawsuits,

20a

or that courts do not have to consider the effects of having

such statutes cover pre-cnactment events. To the contrary,

the Court's use of the adverbs "usually" and "normally" sug-

gests that it did not intend to create a categorical exception

from the general retroactivity analysis for jurisdictional stat-

utes.

Three years later, in Hughes Aircraft, the Court con-

firmed that the general presumption against retroactivity af-

fects jurisdiction-allocating statutes to the same extent that it

affects other legislation. 520 U.S. at 950-51. At issue in

Hughes Aircraft was the temporal reach of a 1986 amend-

ment to the False Claims Act that expanded the range of cir-

cumstances in which private parties can bring suit "on behalf

of the United States against anyone submitting a false claim

to the Government." /d. at 941. After conducting the two-

step analysis outlined in Landgraf, the Supreme Court con-

cluded that the 1986 amendment did not apply where the de-

fendant submitted the alleged false claims before 1986 and a

private person could not have brought suit based on those

claims under the pre-amendment version of the False Claims

Act. /d. at 946-51.

In rejecting plaintiffs argument that the 1986 amend-

ment, as a jurisdictional statute, was exempt from the

Landgraf presumption against retroactivity, the Supreme

Court clarified Landgraf, stating

The fact that courts often apply newly enacted

jurisdiction-allocating statutes to pending cases merely

evidences certain limited circumstances failing to meet

the conditions for our generally applicable presumption

against retroactivity, not an exception to the rule itself. .

.. As we stated in Landgraf.:

"Application of a new jurisdictional rule usually 'takes

away no substantive right but simply changes the tribu-

nal that is to hear the case.’ Present law normally gov-

erns in such situations because jurisdictional statutes

‘speak to the power of the court rather than to the rights

or obligations of the parties."

21a

Statutes merely addressing which court shall have

jurisdiction to entertain a particular cause of action can

fairly be said merely to regulate the secondary conduct

of litigation and not the underlying primary conduct of

the parties. Such statutes affect only where a suit may be

brought, not whether it may be brought at all. The 1986

amendment, however, does not merely allocate jurisdic-

tion among forums. Rather, it creates jurisdiction where

none previously existed; it thus speaks not just to the

power of a particular court but to the substantive rights

of the parties as well. Such a statute, even though

phrased in "jurisdictional" terms, is as much subject to

our presumption against retroactivity as any other.

Id. at 951.

In light of the quoted passage from Hughes Aircraft, the

railroad's argument that we should apply the jurisdiction-al-

locating aspects of the Act to pre-1976 events without first

engaging in the Landgraf analysis is misplaced. Nor are we

persuaded by the railroad's view that the quoted passage per-

tains only to jurisdiction-creating statutes, and thus does not

apply to the jurisdiction-ousting aspects of the FSIA, that is

to say, the express amendment of the diversity statute and the

implied limitation on other general jurisdictional grants rec-

ognized in Amerada Hess. As discussed in Part II B. above,

the enactment of the Act's jurisdiction-conferring provision

for claims against foreign states in § 1330 is the very reason

that other jurisdictional grants no longer govern such claims.

Hence, Congress plainly aimed to have the FSIA's jurisdic-

tional ouster applied coextensively with its jurisdictional

grant.

More importantly, the railroad's argument misses the cen-

tral point of the quoted passage from Hughes Aircraft: al-

though jurisdictional statutes are often applied to pre-enact-

ment events, they are not categorically exempt from the

Landgraf analysis. If the particular jurisdictional statute "af-

fects only where a suit may be brought, not whether it may

be brought," its application to all currently pending cases

usually will not have the impermissible retroactive effect dis-

cussed in Landgraf and, therefore, will "fail[] to meet the

22a

conditions for our generally applicable presumption against

retroactivity." Hughes Aircraft, 520 U.S. at 951; cf Scott v.

Boos, 215 F.3d 940, 944-47 (9th Cir. 2000) (rejecting as

impermissibly retroactive application of new statute that,

although phrased as an exception to existing federal jurisdic-

tional provision, barred plaintiff from asserting in state or

federal court a claim he could have pursued at the time of the

alleged misconduct); Mathews v. Kidder, Peabody & Co.,

Inc., 161 F.3d 156, 163-66 (3d Cir. 1998) (same).

3. Princz

In urging us to forgo the Landgraf analysis, SNCF relies

heavily on Princz v. Federal Republic of Germany, 307 US.

App. D.C. 102, 26 F.3d 1166 (D.C. Cir. 1994). In Princz, the

plaintiff, a Holocaust survivor, sued the Federal Republic of

Germany for injuries suffered in Nazi concentration camps

during World War II. /d. at 1168. Dismissing plaintiff's

claims for lack of subject matter jurisdiction, the District of

Columbia Circuit stated that it did not need to decide

whether the FSIA applied to the case. /d. at 1168, 1171. If

the statute applied, the court reasoned, plaintiff's claims had

to be dismissed because they did not fall within any of the

FSIA's exceptions to immunity. /d. at 1171. On the other

hand, if the Act did not apply, plaintiff's claims still kad to be

dismissed because "there [was] no present basis for subject

matter jurisdiction over Mr. Princz's claims in the district

court regardless of the state of the circuit law concerning 1m-

munity in the period 1942-1945." /d. at 1175-76. After the

FSA's enactment, the court continued, the diversity statute, §

1332, no longer encompasses claims against foreign states.

At the same time, the new § 1330 jurisdictional provision of

the Act, "asserts federal jurisdiction over a suit against a for-

eign state only insofar as the foreign state is not entitled to

immunity under the FSIA," and the court had already found

no pertinent exception to immunity. /d. at 1176.

We are unable to agree with the Princz court's view that

it did not have to and in fact did not decide the issue of the

FSIA's applicability. To the contrary, in the second prong of

its analysis the majority clearly applied both the FSIA's new

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23a

jurisdiction-conferring provision, § 1330, and the amended,

post-FSIA version of the diversity statute, 28 U.S.C. § 1332.

Further, Princz did so without answering either of the

two questions posed by Landgraf: (1) has Congress clearly

expressed its intent that these FSIA provisions be applied to

lawsuits based on pre-1976 events, and, if not, (2) would the

application of these provisions to the plaintiff's claims have a

retroactive effect. Instead, Princz noted only that it was not

aware of any case law "suggesting that a court can revive the

pre-FSIA diversity jurisdiction" over claims against foreign

states. 26 F.3d at 1171. Thus, it apparently accepted as axi-

omatic that the basis for federal subject matter jurisdiction

must be found among the jurisdiction-conferring statutes in

effect at the time of the lawsuit. As we explained above, in

our view such an approach cannot be reconciled with the Su-

preme Court's discussion of jurisdiction-allocating statutes in

Landgraf and, more recently, in Hughes Aircraft.

In consequence, we decline the railroad's invitation to

adopt the reasoning of Princz and proceed instead to analyze

the Act's applicability to this case under the analytical frame-

work outlined in Landgraf and Lindh.

B. Landgraf/Lindh Analysis Applied

1. Express Command Lacking to Apply FSIA

Retroactively

Under Landgraf, the first question is whether Congress

clearly expressed its aim that the statute apply to pre-enact-

ment events. We conclude it did not. In 7. N.S. v. St. Cyr, 533

U.S. 289, 150 L. Ed. 2d 347, 121 S. Ct. 2271 (2001), the Su-

preme Court explained that the standard for finding the req-

uisite "unambiguous direction" under Landgraf "is a demand-

ing one." /d. at 316. "Cases where this Court has found truly

‘retroactive’ effect adequately authorized by statute have in-

volved statutory language that was so clear that it could sus-

tain only one interpretation.” /d. at 316-17 (quoting Lindh,

521 U.S. at 328 n.4). For instance, we found this standard

satisfied in Kuhali v. Reno, 266 F.3d 93 (2d Cir. 2001),

where a statute expanding the definition of the term "aggra-

vated felony” expressly stated that the new definition applies

24a

"regardless of whether the conviction was entered before, on,

or after" the date of the statute's enactment. /d. at 110.

In the case at hand, the rigorous requirement of an unam-

brguous Congressional direction is not satisfied. The closest

Congress came to defining expressly the temporal reach of

the FSIA was to state that "claims of foreign states to immu-

nity should henceforth be decided by courts of the United

States and of the States in conformity with the principles set

forth in [that statute]," 28 U.S.C. § 1602 (emphasis added).

See Princz, 26 F.3d at 1170. The use of the word "hence-

forth" can reasonably sustain more than one construction.

Courts have in fact reached diametrically opposite conclu-

sions regarding Congressional purpose after pouring meaning

into this word. See id. at 1178 (Wald, J., dissenting) (collect-

ing cases). Some have interpreted the verbiage as suggesting

that the Act should cover all cases decided after its enact-

ment, regardless of the time of the underlying events. See id.

at 1170 (majority opinion). Others have concluded that the

word "henceforth" suggests prospective application, meaning

application only to suits arising out of post-enactment events

— 1.e., to some but not all suits filed after the statute's enact-

ment. See Jackson v. People’s Republic of China, 794 F.2d

1490, 1497 (11th Cir. 1986).

Thus, the statutory language obviously is not so clear as

to sustain only one construction and thereby to resolve con-

clusively the question of Congressional purpose, making ad-

ditional analysis unnecessary. Cf id. at 1497-98 (proceeding

to analyze the FSIA's legislative history, implications of its

effective date provision and effect of its application on de-

fendant's antecedent rights to decide whether the statute

should apply to claim arising out of pre-1952 events).

The railroad also insists the FSIA's comprehensiveness

shows Congress wanted the statute to apply to all suits filed

after its enactment. This proposition is not persuasive in light

of the Supreme Court's express pronouncement in St. Cyr

that the comprehensiveness of a statute says nothing with

respect to Congress’ view regarding the "retroactivity of the

enactment's individual provisions." 533 U.S. at 317.

2. Intent to Apply Prospectively

25a

We next turn to the question added to the Landgraf anal-

ysis in Lindh: do ordinary methods of statutory construction

establish that the Act's jurisdictional provisions are inappli-

cable to the pre-enactment events here at issue? We think the

answer to that question is no.

As just discussed, Congress’ statement that the Act

should henceforth govern immunity determinations is ambig-

uous. Similarly unilluminating is the use of the verb "shall"

in the phrase "district courts shall have original jurisdiction .

_. of any nonjury civil action against a foreign state." 28

U.S.C. § 1330(a). Just as the word henceforth does not nec-

essarily indicate prospective applicatien only, this language

does not necessarily signal the statute's applicability only to

cases arising out of post-enactment events. Consequently, the

use of the cited statutory language may not eliminate the op-

tion of retroactive applicability of the statute.

Plaintiffs further maintain that Congress indicated the

Act was not retroactive by postponing its effective date for

90 days after enactment "to give adequate notice of the act

and its detailed provisions to all foreign states." See FSIA §

8, 1976 U.S.C.C.A.N. (90 Stat.) at 2898; House Report at 33,

reprinted in 1976 U.S.C.C.A.N. at 6632. We do not discern

in this provision any suggestion of the intended temporal

reach of the statute. Nor do we consider Congress’ inclusion

of express retroactivity directives in the 1996 and 1997

amendments to the Act a sound basis fer construing a differ-

ent legislature's silence on the same subject ten years earlier.

See Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, § 221, 1996 U.S.C.C.A.N. (110 Stat.)

1214, 1241-43 (making amendments on lawsuits against "ter-

rorist states" applicable "to any cause of action arising be-

fore, on, or after the date of the enactment of this Act"); Ju-

risdiction for Lawsuits Against Terrorist States: Technical

Correction, Pub. L. No. 105-11, 1997 U.S.C.C.A.N. (111

Stat.) 22, 22 (same).

3. Retroactive Effect

Because other tools of statutory interpretation do not es-

tablish the FSIA's inapplicability to this case, we must con-

26a

sider whether its application here would have the retroactive

effect described in Landgraf and, accordingly, would be

barred by the general presumption against retroactivity. What

is called for is "a commonsense, functional judgment about

whether the new provision attaches new legal consequences

to events completed before its enactment." St. Cyr, 533 U.S.

at 321.

Plaintiffs declare that having the Act cover the instant

case would be impermissibly retroactive because, under laws

in effect during World War II, SNCF would not have been

immune from this specific suit. Thus, plaintiffs assert, appli-

cation of the Act to bar their claims deprives them of a right

»f action they previously had and upsets their settled and le-

gitimate expectation of being able to sue SNCF in the United

States.

In Hughes Aircraft, the Supreme Court distinguished be-

tween two types of nominally jurisdictional statutes. 520

U.S. at 951. Those statutes that affect only where a suit may

be brought can generally be applied to currently pending

cases without impermissible retroactivity. Jd. By contrast,

statutes that affect whether a lawsuit may be brought at all

can produce a retroactive effect if applied to pre-enactment

events. /d.

Consistent with Hughes Aircraft, at least two other cir-

cuits have concluded that a new statute has a retroactive ef-

fect under Landgraf if the statute, although phrased in juris-

dictional terms, does not merely change the forum available

to plaintiff, but effectively deprives plaintiff of a claim. See

Scott, 215 F.3d at 944-47; Mathews, 161 F.3d at 163-66. We

adopt this view and hold that the FSIA's application to the

present litigation would be retroactive in the Landgraf sense

if, as plaintiffs contend, it fully barred claims that previously

could have been adjudicated in the United States.

The question remains therefore whether the Act's applica-

tion effectively extinguishes plaintiffs’ causes of action. In

our view, it does. We recognize that, unlike the immunity

provisions, the jurisdictional provisions of the Act do not

apply to state courts. See FSIA § § 2, 3, 1976 U.S.C.C.A.N.

(90 Stat.) at 2891 (codified at 28 U.S.C. §$§ 1330, 1332).

iia aaa a ial

27a

Hence, it could be argued that application of the jurisdic-

tional provisions simply eliminates federal courts as possible

forum choices for plaintiffs, but does not affect plaintiffs’

ability to pursue their claims in state courts. There, in turn,

plaintiffs could oppose the railroad's immunity defense under

the FSIA on retroactivity grounds. Such an interpretation of

the Act would expose the railroad to a possibility of being

sued in state court, even though the same lawsuit could not

be brought in federal court. SNCF appears to adopt this posi-

tion, urging us to separate the analysis of the Act's applicabil-

ity into two distinct inqsiries: jurisdiction and immunity.

A foreign sovereign's exposure to suit in state courts may

not be broader than its exposure to federal courts' jurisdiction

under § 1330. To rule otherwise would be inconsistent with

Congress’ preference that actions involving foreign states be

tried in federal courts. Such preference stems, of course,

from the sensitivity of actions in American courts against

foreign states and the importance of having a uniform, con-

sistent law in this area. House Report at 32, reprinted in 1976

U.S.C.C.A.N. at 6631. The preference is most evident in the

FSIA's liberal removal provision that allows a foreign state

defendant -- even over objections of co-defendants -- to re-

move to federal court any civil action brought against it in

state court. See FSIA § 6, 1976 U.S.C.C.A.N. (90 Stat.) at

2898 (codified at 28 U.S.C. § 1441(d)).

Moreover, an interpretation of the Act that allows for a

state court action against a foreign government but excludes

the same action from district courts' original jurisdiction un-

der § 1330 leads to an obviously anomalous result. Because

a foreign sovereign defendant may always remove a case to

federal court, see § 1441(d), the action would then be re-

movable to federal court by defendant even though it could

not have been originally brought in that court by plaintiff.

See 28 U.S.C. § 1441(a) (providing generally for removal of

actions within federal district courts' original jurisdiction).

Accordingly, applying the Act to bar plaintiffs' claims from

federal courts does not simply eliminate one of plaintiffs'

forum choices, but fully precludes the claims' adjudication in

the United States. Cf. Verlinden, 461 U.S. at 489 (noting in

28a

dictum that "any claim permitted under the [FSIA] may be

brought from the outset in federal court" under § 1330(a)).

The final question is whether plaintiffs could have legiti-

matcly expected to have their claims adjudicated in the

United States prior to the FSIA's enactment. Plaintiffs aver

that before the FSIA expanded the definition of a foreign

state to encompass state-owned corporations, courts treated

such corporations as legal entities separate from their owners

and did not recognize the corporations’ claims of sovereign

immunity. Some pre-FSIA case law from this Circuit sup-

ports plaintiffs’ assertion. For example, in United States v.

Deutsches Kalisyndikat Gesellschaft, 31 F.2d 199 (S.D.N.Y.

1929), it was held that a French government-owned mining

corporation was not entitled to immunity because the corpo-

ration was an entity distinct from its stockholders. /d. at 202-

03. Similarly, in Kunglig Jarnvagsstyrelsen v. Dexter & Car-

penter, Inc., 32 F.2d 195 (2d Cir. 1929), we refused to recog-

nize a Swedish railway company's claim of immunity be-

cause in its pleadings the company characterized itself as a

corporation. /d. at 199-200. In rejecting the immunity claim,

we reasoned that such a claim must be raised by an accred-

ited representative of the foreign government. /d.

SNCF correctly points out that in other cases courts have

treated national railroad companies as state instrumentalities.

See Oliver Am. Trading Co. v. Gov't of the United States of

Mex., 5 F.2d 659 (2d Cir. 1924). For instance, in Oliver, we

recognized the immunity claim of the National Railways of

Mexico, on the ground that "the National Railways of Mex-

ico" was simply the name given a system of railroads in the

possession of the Mexican government, controlled and oper-

ated by Mexico for ten years for national purposes similar to

its running the Post Office, Customs Service, or any other

branch of the national government. /d. at 661; see also Wil-

liam C. Hoffman, The Separate Entity Rule in International

Perspective: Should State Ownership of Corporate Shares

Confer Sovereign Status for Immunity Purposes?, 65 Tul. L.

Rev. 535, 545-47 (1991) (observing application of separate

entity rule to state-owned corporations before FSIA not uni-

form).

29a

Both sides overlook one crucial aspect of the pre-FSIA

law and practice in the United States -- the State Depart-

ment's role in courts’ foreign sovereign immunity determina-

tions. As earlier noted, the State Department often intervened

in litigation by filing a suggestion of immunity. Further, even

in cases where the State Department did not intervene, courts

looked to that agency for guidance and generally acted in

accordance with its policies.

The relevance of the State Department's policies to our

retroactivity analysis is twofold. First, it appears that the

State Department sometimes recognized immunity claims of

corporations owned by foreign governments. In Miller v.

Ferrocarril Del Pacifico De Nicaragua, 137 Me. 251, 18

A.2d 688 (Me. 1941), the State Department recognized a

_ Maine corporation that operated railways within Nicaragua

‘ as an instrumentality of the Nicaraguan government, and the

court, in turn, granted the company immunity. Id. at 690-91.

Second, and more importantly, the State Department's

treatment of ordinary litigation with friendly foreign states in

times of peace does not necessarily indicate the position the

Department would have taken on claims closely related to

war-time crimes of an enemy, such as plaintiffs’ claims here.

Thus, in Altmann v. Republic of Austria, 317 F.3d 954 (9th

Cir. 2002), the Ninth Circuit held that Austria could not have

legitimately expected immunity from suit "for its alleged

complicity in the pillaging and retention of treasured paint-

ings from the home of a Jewish alien who was forced to flee

for his life" during the Holocaust. /d. at 964. In reaching this

result, the court relied on a 1949 State Department press re-

lease, which announced the Department's policy to "relieve

American courts from any restraint upon the exercise of their

jurisdiction" with respect to claims for the restitution of iden-

tifiable property wrongfully taken as a result of the Nazi per-

secution in Germany. Jd. at 965-66.

The record contains no information with respect to the

State Department's position during World War II on the sig-

nificance of the corporate form in foreign sovereign immu-

nity determinations. Nor is there any indication in the record

whether the State Department would have recognized immu-

| |

30a

nity in a case such as the one before us. As a consequence,

without this information we cannot determine whether plain- P

tiffs legitimately could have expected to litigate their claims

in the United States.

CONCLUSION

Accordingly, for the reasons stated, we vacate the dis-

missal of the complaint and remand the case to the district

court for further proceedings consistent with this opinion.

3la

U.S. FOREIGN SOVEREIGN IMMUNITIES

ACT OF 1976

28 U.S.C § 1330. Actions against foreign states

(a) The district courts shall have original jurisdiction with-

out regard to amount in controversy of any nonjury civil ac-

tion against a foreign state as defined in section 1603(a) of

this title as to any claim for relief in personam with respect to

which the foreign state is not entitled to immunity either un-

der sections 1605-1607 of this title or under any applicable

international agreement.

(b) Personal jurisdiction over a foreign state shall exist as

to every claim for relief over which the district courts have

jurisdiction under subsection (a) where service has been

made under section 1608 of this title.

(c) For purposes of subsection (b), an appearance by a for-

eign state does not confer personal jurisdiction with respect

to any claim for relief not arising out of any transaction or

occurrence enumerated in sections 1605-1607 of this title.

28 U.S.C. 1332. Diversity of citizenship; amount in con-

troversy; costs

(a) The district courts shall have original jurisdiction of all

civil actions where the matter in controversy exceeds the sum

or value of $75,000 exclusive of interest and costs, and is

between —

32a

(4) a foreign state, defined in section 1603(a) of this title,

as plaintiff and citizens of a state or of different States. For

the purposes of this section, section 1335, and section 1441,

an alien admitted to the United States for permanent resi-

dence shall be deemed a citizen of the State in which such

alien is domiciled.

* * * *

28 U.S.C § 1441. Actions removable generally

(d) Any civil action brought in a State court against a for-

eign state as defined in section 1603(a) of this title may be

removed by the foreign state to the district court of the

United States for the district and division embracing the

place where such action is pending. Upon removal the action

shall be tried by the court without jury. Where removal is

based upon this subsection, the time limitations of section

1446(b) of this chapter may be enlarged at any time for cause

shown.

* * * *

28 U.S.C § 1602. 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

33a

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 henceforth be decided by courts of the United States

and of the States in conformity with the principles set forth in

this chapter.

28 U.S.C § 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 sub-

section (b).

(b) An “agency or instrumentality of a foreign state”

means any entity--

(1) which is a separate legal person, corporate or other-

wise, and

(2) which is an organ of a foreign state or political sub-

division thereof, or a majority of whose shares or other own-

ership interest is owned by a foreign state or political subdi-

vision 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.

(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 transac-

tion or act. The commercial character of an activity shall be

determined by reference to the nature of the course of con-

duct or particular transaction or act, rather than by reference

to its purpose.

Pi

34a

(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.

28 U.S.C § § 1604. Immunity of a foreign state from juris-

diction

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 pro-

vided in sections 1605-1607 of this chapter.

28 U.S.C. 1605. General exceptions to the jurisdictional

immunity of a foreign state P

(a) A foreign state shall not be immune from the jurisdic-

tion 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, notwithstanding any with-

drawal of the waiver which the foreign state may purport to

effect except in accordance with the terms of the waiver;

(2) in which the action is based upon a commercial

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 territory of the United States in con-

nection with a commercial activity of the foreign state else-

where 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 prop-

erty exchanged for such property is present in the United

States In connection with a commercial activity carried on in

35a

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 ac-

quired by succession or gift or rights in immovable property

situated in the United States are in issue;

(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 em-

ployee 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 perfor-

mance 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 prosecution,

abuse of process, libel, slander, misrepresentation, deceit, or

interference with contract rights;

(6) in which the action is brought, either to enforce an

agreement made by the foreign state with or for the benefit of

a private party to submit to arbitration all or any differences

which have arisen or which may arise between the parties

with respect to a defined legal relationship, whether contrac-

tual or not, concerning a subject matter capable of settlement

by arbitration under the laws of the United States, or to con-

firm an award made pursuant to such an agreement to arbi-

trate, if (A) the arbitration takes place or is intended to take

place in the United States, (B) the agreement or award is or

may be governed by a treaty or other international agreement

in force for the United States calling for the recognition and

enforcement of arbitral awards, (C) the underlying claim,

save for the agreement to arbitrate, could have been brought

in a United States court under this section or section 1607, or

(D) paragraph (1) of this subsection is otherwise applicable;

36a

or

(7) not otherwise covered by paragraph (2), in which

money damages are sought against a foreign state for per-

sonal injury or death that was caused by an act of torture,

extrajudicial killing, aircraft sabotage, hostage taking, or the

provision of material support or resources (as defined in sec-

tion 2339A of title 18) for such an act if such act or provision

of material support is engaged in by an official, employee, or

agent of such foreign state while acting within the scope cf

his or her office, employment, or agency, except that the

court shall decline to hear a claim under this paragraph--

(A) if the foreign state was not designated as a

state sponsor of terrorism under section 6(j) of the Export

Administration Act of 1979 (50 U.S.C. App. 2405(j)) or sec-

tion 620A of the Foreign Assistance Act of 1961 (22 U.S.C.

2371) at the time the act occurred, unless later so designated

as a result of such act or the act is related to Case Number

1:00CV03110(EGS) in the United States District Court for

the District of Columbia; and

(B) even if the foreign state is or was so desig-

nated, if--

(1) the act occurred in the foreign state against

which the claim has been brought and the claimant has not

afforded the foreign state a reasonable opportunity to arbi-

trate the claim in accordance with accepted international

rules of arbitration; or

(11) neither the claimant nor the victim was a

national of the United States (as that term is defined in sec-

tion 101(a)(22) of the Immigration and Nationality Act when

the act upon which the claim is based occurred.

(b) A foreign state shall not be immune from the junsdic-

tion 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 vessei or cargo of the foreign state, which maritime lien is

based upon a commercial activity of the foreign state: Pro-

vided, That--

37a

(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; and if the vessel or cargo is ar-

rested pursuant to process obtained on behalf of the party

bringing the suit, the service of process of arrest shall be

deemed to constitute valid delivery of such notice, but the

party bringing the suit shall be liable for any damages sus-

tained by the foreign state as a result of the arrest if the party

bringing the suit had actual or constructive knowledge that

the vessel or cargo of a foreign state was involved; and

(2) notice to the foreign state of the commencement of

suit as provided in section 1608 of this title is initiated within

ten days either of the delivery of notice as provided in para-

graph (1) of this subsection or, in the case of a party who was

unaware that the vessel or cargo of a foreign state was in-

volved, of the date such party determined the existence of the

foreign state's interest.

(c) Whenever notice is delivered under subsection (b)(1),

the suit to enforce a maritime lien shall thereafter proceed

and shall be heard and determined according to the principles

of law and rules of practice of suits in rem whenever it ap-

pears that, had the vessel been privately owned and pos-

sessed, a suit in rem might have been maintained. A decree

against the foreign state may include costs of the suit and, if

the decree is for a money judgment, interest as ordered by the

court, except that the court may not award judgment against

the foreign state in an amount greater than the vaiue of the

vessel or cargo upon which the maritime lien arose. Such

value shall be determined as of the time notice is served un-

der subsection (b)(1). Decrees shall be subject to appeal and

revision as provided in other cases of admiralty and maritime

jurisdiction. Nothing shall preclude the plaintiff in any

proper case from seeking relief in personam in the same ac-

tion brought to enforce a maritime lien as provided in this

section.

38a

(d) A foreign state shall not be immune from the jurisdic-

tion of the courts of the United States in any action brought

to foreclose a preferred mortgage, as defined in the Ship

Mortgage Act, 1920 (46 U.S.C. 911 and following). Such

action shall be brought, heard, and determined in accordance

with the provisions of that Act and in accordance with the

principles of law and rules of practice of suits in rem, when-

ever it appears that had the vessel been privately owned and

possessed a suit in rem might have been maintained.

(e) For purposes of paragraph (7) of subsection (a)--

(1) the terms "torture" and "extrajudicial killing" have

the meaning given those terms in section 3 of the Torture

Victim Protection Act of 1991;

(2) the term "hostage taking" has the meaning given

that term in Article 1 of the International Convention Against

the Taking of Hostages; and

(3) the term "aircraft sabotage" has the meaning given

that term in Article 1 of the Convention for the Suppression

of Unlawful Acts Against the Safety of Civil Aviation.

(f) No action shall be maintained under subsection (a)(7)

unless the action is commenced not later than 10 years after

the date on which the cause of action arose. All principles of

equitable tolling, including the period during which the for-

eign state was immune from suit, shall apply in calculating

this limitation period.

(g) Limitation on discovery.

(1) In general.

(A) Subject to paragraph (2), if an action is filed

that would otherwise be barred by section 1604 but for sub-

section (a)(7), the court, upon request of the Attorney Gen-

eral, shall stay any request, demand, or order for discovery on

the United States that the Attorney General certifies would

39a

significantly interfere with a criminal investigation or prose-

cution, or a national security operation, related to the incident

that gave rise to the cause of action, until such time as the

Attorney General advises the court that such request, de-

mand, or order will no longer so interfere.

(B) A stay under this paragraph shall be in effect

during the 12-month period beginning on the date on which

the court issues the order to stay discovery. The court shall

renew the order to stay discovery for additional 12-month

periods upon motion by the United States if the Attorney

General certifies that discovery would significantly interfere

with a criminal investigation or prosecution, or a national

security operation, related to the incident that gave rise to the

cause of action.

(2) Sunset.

(A) Subject to subparagraph (B), no stay shall be

granted or continue. n effect under paragraph (1) after the

date that is 10 years aster the date on which the incident that

gave rise to the cause of action occurred.

(B) After the period referred to in subparagraph

(A), the court, upon request of the Attorney General, may

stay any request, demand, or order for discovery on the

United States that the court finds a substantial likelihood

would--

(i) create a serious threat of death or serious

bodily injury to any person; :

(ii) adversely affect the ability of the United

States to work in cooperation with foreign and international

law enforcement agencies in investigating violations of

United States law; or

(iii) obstruct the criminal case related to the

incident that gave rise to the cause of action or undermine the

potential for a conviction in such case.

(3) Evaluation of evidence. The court's evaluation of

any request for a stay under this subsection filed by the At-

torney General shall be conducted ex parte and in camera.

40a

(4) Bar on motions to dismiss. A stay of discovery un-

der this subsection shall constitute a bar to the granting of a

motion to dismiss under rules 12(b)(6) and 56 of the Federal

Rules of Civil Procedure.

(5) Construction. Nothing in this subsection shall pre-

vent the United States from seeking protective orders or as-

serting privileges ordinarilv available to the United States

28 U.S.C § 1606. Extent of liability

As to any claim for relief with respect to which a foreign

state is not entitled to immunity under section 1605 or 1607

of this chapter, the foreign state shall be liable in the same

manner and to the same extent as a private individual under

like circumstances; but a foreign state except for an agency

or instrumentality thereof shall not be liable for punitive

damages; if, however, in any case wherein death was caused,

the law of the place where the action or omission occurred

provides, or has been construed to provide, for damages only

punitive in nature, the foreign state shall be liable for actual

or compensatory damages measured by the pecuniary injuries

resulting from such death which were incurred by the persons

for whose benefit the action was brought

28 U.S.C § 1607. Counterclaims

In any action brought by a foreign state, or in which a foreign

state intervenes, in a court of the United States or of a State,

the foreign state shall not be accorded immunity with respect

to any counterclaim--

(a) for which a foreign state would not be entitled to im-

munity under section 1605 of this chapter had such claim

been brought in a separate action against the foreign state; or

(b) arising out of the transaction or occurrence that is the

subject matter of the claim of the foreign state; or

4la

(c) to the extent that the counterclaim does not seek relief

exceeding in amount or differing in kind from that sought by

the foreign state.

28 U.S.C § 1608. Service; time to answer; default

(a) Service in the courts of the United States and of the

States shall be made upon a foreign state or political subdivi-

sion of a foreign state:

(1) by delivery of a copy of the summons and com-

plaint in accordance with any special arrangement for service

between the plaintiff and the foreign state or political subdi-

vision; or

(2) if no special arrangement exists, by delivery of a

copy of the summons and complaint in accordance with an

applicable international convention on service of judicial

documents; or

(3) if service cannot be made under paragraphs (1) or

(2), by sending a copy of the summons and complaint and a

notice of suit, together with a translation of each into the of-

ficial language of the foreign state, by any form of mail re-

quiring a signed receipt, to be addressed and dispatched by

the clerk of the court to the head of the ministry of foreign

affairs of the foreign state concerned, or

(4) if service cannot be made within 30 days under

paragraph (3), by sending two copies of the summons and

complaint and a notice of suit, together with a translation of

each into the official language of the foreign state, by any

form of mail requiring a signed receipt, to be addressed and

dispatched by the clerk of the court to the Secretary of State

in Washington, District of Columbia, to the attention of the

Director of Special Consular Services--and the Secretary

shall transmit one copy of the papers through diplomatic

channels to the foreign state and shall send to the clerk of the

court a certified copy of the diplomatic note indicating when

the papers were transmitted. As used in this subsection, a

"notice of suit" shall mean a notice addressed to a foreign

a lina

42a

state and in a form prescribed by the Secretary of State by

regulation.

(b) Service in the courts of the United States and of the

States shall be made upon an agency or instrumentality of a

foreign state:

(1) by delivery of a copy of the summons and com-

plaint in accordance with any special arrangement for service

between the plaintiff and the agency or instrumentality; or

(2) if no special arrangement exists, by delivery of a

copy of the summons and complaint either to an officer, a

managing or general agent, or to any other agent authorized

by appointment or by law to receive service of process in the

United States; or in accordance with an applicable interna-

tional convention on service of judicial documents; or

(3) if service cannot be made under paragraphs (1) or

(2), and if reasonably calculated to give actual notice, by de-

livery of a copy of the summons and complaint, together with

a translation of each into the official language of the foreign

state--

(A) as directed by an authority of the foreign state

or political subdivision in response to a letter rogatory or re-

quest or

(B) by any form of mail requiring a signed receipt,

to be addressed and dispatched by the clerk of the court to

the agency or instrumentality to be served, or

(C) as directed by order of the court consistent

with the law of the place where service is to be made.

(c) Service shall be deemed to have been made--

(1) in the case of service under subsection (a)(4), as of

the date of transmittal indicated in the certified copy of the

diplomatic note; and

(2) in any other case under this section, as of the date

of receipt indicated in the certification, signed and returned

43a

postal receipt, or other proof of service applicable to the

method of service employed.

(d) In any action brought in a court of the United States or

of a State, a foreign state, a political subdivision thereof, or

an agency or instrumentality of a foreign state shall serve an

answer or other responsive pleading to the complaint within

sixty days after service has been made under this section.

(e) No judgment by default shall be entered by a court of

the United States or of a State against a foreign state, a politi-

cal subdivision thereof, or an agency or instrumentality of a

foreign state, unless the claimant establishes his claim or

right to relief by evidence satisfactory to the court. A copy of

any such default judgment shall be sent to the foreign state or

political subdivision in the manner prescribed for service in

this section.

28 U.S.C § 1609. Immunity from attachment and execu-

tion 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 pro-

vided in sections 1610 and 1611 of this chapter.

28 U.S.C § 1610. Exceptions to the immunity from at-

tachment 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 com-

mercial 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

44a

State after the effective date of this Act, if--

(1) the foreign state has waived its immunity from at-

tachment in aid of execution or from execution either explic-

itly or by implication, notwithstanding any withdrawal of the

waiver the foreign state may purport to effect except in ac-

cordance with the terms of the waiver, or

(2) the property is or was used for the commercial ac-

tivity upon which the claim is based, or

(3) the execution relates to a judgment establishing

rights in property which has been taken in violation of inter-

national law or which has been exchanged for property taken

in violation of international law, or

(4) the execution relates to a judgment establishing

rights in property--

(A) which is acquired by succession or gift, or

(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 resi-

dence of the Chief of such mission, or

(5) the property consists of any contractual obligation

or any proceeds from such a contractual obligation to indem-

nify 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, or

(6) the judgment is based on an order confirming an

arbitral award rendered against the foreign state, provided

that attachment in aid of execution, or execution, would not

be inconsistent with any provision in the arbitral agreement,

or

(7) the judgment relates to a claim for which the for-

eign state is not immune under section 1605(a)(7), regardless

of whether the property is or was involved with the act upon

which the claim is based.

(b) In addition to subsection (a), any property in the

45a

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 immu-

nity from attachment in aid of execution or from execution

either explicitly or implicitly, notwithstanding any with-

drawal of the waiver the agency or instrumentality may pur-

port to effect except in accordance 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), (5), or (7), or 1605(b) of this chapter, regard-

less of whether the property is or was involved in the act

upon which the claim is based.

(c) No attachment or execution referred to in subsections

(a) and (b) of this section shall be permitted until the court

has ordered such attachment and execution after having de-

termined that a reasonable period of time has elapsed follow-

ing the entry of judgment and the giving of any notice re-

quired under section 1608(e) of this chapter.

(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, notwithstanding 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 satisfac-

tion of a judgment that has been or may ultimately be entered

46a

against the foreign state, and not to obtain jurisdiction.

(e) The vessels of a foreign state shall not be immune from

arrest in rem, interlocutory sale, and execution in actions

brought to foreclose a preferred mortgage as provided in sec-

tion 1605(d).

(f) (1) (A) Notwithstanding any other provision of law,

including but not limited to section 208(f)- of the Foreign

Missions Act (22 U.S.C. 4308(f)), and except as provided in

subparagraph (B), any property with respect to which finan-

cial transactions are prohibited or regulated pursuant to sec-

tioi. 5(b) of the Trading with the Enemy Act (50 U.S.C. App.

5(b)), section 620(a) of the Foreign Assistance Act of 1961

(22 U.S.C. 2370(a)), sections 202 and 203 of the Interna-

tional Emergency Economic Powers Act (50 U.S.C.

1701-1702), or any other proclamation, order, regulation, or

license issued pursuant thereto, shall be subject to execution

or attachment in aid of execution of any judgment relating to

a claim for which a foreign state (including any agency or

instrumentality or such state) claiming such property is not

immune under section 1605(a)(7).

(B) Subparagraph (A) shall not apply if, at the time

the property is expropriated or seized by the foreign state, the

property has been held in title by a natural person or, if held

in trust, has been held for the benefit of a natural person or

persons.

(2) (A) At the request of any party in whose favor a

judgment has been issued with respect to a claim for which

the foreign state is not immune under section 1605(a)(7), the

Secretary of the Treasury and the Secretary of State should

make every effort to fully, promptly, and effectively assist

any judgment creditor or any court that has issued any such

judgment in identifying, locating, and executing against the

property of that foreign state or any agency or instrumentality

of such state.

(B) In providing such assistance, the Secretaries--

47a

(i) may provide such information to the court

under seal; and

(ii) should make every effort to provide the

information in a manner sufficient to allow the court to direct

the United States Marshall's office to promptly and effec-

tively execute against that property.

(3) Waiver. The President may waive any provision of

paragraph (1) in the interest of national security.

28 U.S.C § 1611. Certain types of property immune from

execution

(a) Notwithstanding the provisions of section 1610 of this

chapter, the property of those organizations designated by the

President as being entitled to enjoy the privileges, exemp-

tions, and immunities provided by the International Organi-

zations Immunities Act shall not be subject to attachment or

any other judicial process impeding the disbursement of

funds to, or on the order of, a foreign state as the result of an

action brought in the courts of the United States or of the

States.

(b) Notwithstanding the provisions of section 1610 of this

chapter, the property of a foreign state shall be immune from

attachment and from execution, if--

(1) the property is that of a foreign central bank or

monetary authority held for its own account, unless such

bank or authority, or its parent foreign government, has ex-

plicitly waived its immunity from attachment in aid of execu-

tion, or from execution, notwithstanding any withdrawal of

the waiver which the bank, authority or government may pur-

port to effect except in accordance with the terms of the

waiver; or

(2) the property is, or is intended to be, used in con-

nection with a military activity and

48a

(A) :s of a military character, or

(B) is uider the control of a military authority or

defense agency.

(c) Notwithstanding the provisions of section 1610 of this

chapter, the property of a foreign state shall be immune from

attachment and from execution in an action brought under

section 302 of the Cuban Liberty and Democratic Solidarity

(LIBERTAD) Act of 1996 to the extent that the property is a

facility or installation used by an accredited diplomatic mis-

sion for official purposes.