Digest 09 Ch10x 153980

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Chapter 10

Privileges and Immunities

A. FOREIGN SOVEREIGN IMMUNITY
1. Foreign Sovereign Immunities Act
The Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330, 1602–
1611, provides that, subject to international agreements to which the
United States was a party at the time of enactment in 1976, a foreign state
is immune from the jurisdiction of courts in the United States unless one of
the specified exceptions in the statute applies. A foreign state is defined to
include its agencies and instrumentalities but not the individual actors. The
FSIA provides the sole basis for obtaining jurisdiction over a foreign state in
U.S. courts. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S.
428 (1989); Saudi Arabia v. Nelson, 507 U.S. 349 (1993). Before the
enactment of the FSIA, courts abided by “suggestions of immunity” from the
State Department. When no suggestion was filed, however, the courts would
make the determination by applying principles derived from State
Department practice.
In the FSIA Congress codified the “restrictive” theory of sovereign
immunity, under which a state is entitled to immunity with respect to its
sovereign or public acts, but not those that are private or commercial in
character. The United States had previously adopted the restrictive theory in
the “Tate Letter” of 1952, reproduced at 26 Dep’t State Bull. 678 at 984–85
(1952). See Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 711–15
(1976).
From the outset, the FSIA has recognized exceptions to immunity,
notably commercial activity. Over time, amendments to the FSIA
incorporated additional exceptions, including one enacted in 1996 for acts
of terrorism in certain circumstances, which was repealed in 2008 and
replaced with a more expansive provision. The FSIA’s various statutory
exceptions, set forth at 28 U.S.C. §§ 1605(a)(1)–(6) and § 1605A, have been
subject to significant judicial interpretation in cases brought by private
entities or persons against foreign states. Accordingly, much of U.S. practice
in the field of sovereign immunity is developed by U.S. courts in litigation to
which the U.S. government is not a party and in which it participates, if at
all, as amicus curiae.
The following items describe a selection of the significant
proceedings that occurred during 2009.

a. Scope of application of the FSIA
On February 10, 2009, the U.S. Court of Appeals for the Sixth Circuit
withdrew a 2008 opinion and issued an amended opinion affirming a
district court order dismissing some claims and allowing others to proceed
in a putative class action against the Holy See. O’Bryan v. Holy See, 556 F.3d
361 (6th Cir. 2009). Although the United States recognizes the Holy See as a
foreign government, the plaintiffs, who alleged sexual abuse by Catholic
priests in the United States, argued that they could invoke federal
jurisdiction over the Holy See without relying on the FSIA by virtue of the
Holy See’s status as the head of the Roman Catholic Church. On appeal, the
plaintiffs also alleged that the FSIA was unconstitutional as applied to the
Holy See.
The United States participated in the appeal as amicus curiae to
defend the executive branch’s recognition of the Holy See as a foreign
government and to argue that the Holy See can be sued only as authorized
by the FSIA. The United States also intervened in the litigation to defend the
constitutionality of the FSIA, as applied to the Holy See. See 28 U.S.C.
§ 2403(a). The U.S. brief, filed on September 17, 2007, is available at
www.state.gov/s/l/c8183.htm.
In affirming the district court, the Sixth Circuit rejected the plaintiffs’
argument that they could sue the Holy See outside the FSIA and also
determined that the plaintiffs had waived their constitutional challenge by
failing to present it to the district court. Excerpts from the court’s opinion
follow, providing factual background and analyzing the applicability of the
FSIA generally. (Footnotes and citations to other submissions in the case are
omitted.) For the court’s analysis in holding that, while the commercial
activity exception of the FSIA did not apply to the case, certain portions of
the plaintiffs’ claims fell within the non-commercial tort exception of the
FSIA, see A.1.b.(1)(i) and A.1.b.(2)(i) below, respectively. The Supreme Court
denied certiorari on October 5, 2009. O’Bryan v. Holy See, 130 S. Ct. 361
(2009).
___________________
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*
*
On June 4, 2004, plaintiffs, who claim to have been victims of sexual abuse by Roman Catholic
clergy, filed a class action suit against the Holy See. The Holy See is both a foreign state and an
unincorporated association and the central government of an international religious organization,
the Roman Catholic Church. . . .
*
*
*
*
Plaintiffs’ claims regarding the liability of the Holy See stem, in large part, from their
allegations regarding the purported policy of the Holy See towards accusations of sexual abuse
leveled against clergy:

[T]he Holy See has mandated that all allegations of childhood sexual abuse be kept
under a cloak of complete secrecy, even if that secrecy violated state, federal, or
international law. In March, 1962, the Holy See privately circulated a document
containing a set of procedural norms for dealing with the solicitation of sex in
confession, clergy sex with minors, homosexual relations, and bestiality. This
document [the “1962 Policy”]—an official legislative text issued by the
Congregation of the Holy Office and specifically approved by Pope John XXIII—
imposes the highest level of secrecy on the handling of clergy sexual abuse matters. .
. . This secret document was first discovered and made public in July, 2003 by news
media in the United States and throughout the world. The policies of the Holy See
expressed in this and other documents require bishops in the United States to, among
other things, refuse to report childhood sexual abuse committed by priests to criminal
or civil authorities, even where such failure to report would itself be a criminal
offense.
*
*
*
*
In this case, there is no dispute that the United States recognized the Vatican in 1984, and
there is no dispute between the parties that the State of the Vatican is a foreign state within the
meaning of [the] FSIA. . . .
Plaintiffs, however, contend that the “Holy See . . . . as the head of the Roman Catholic
Church, . . . has no defined territory and no permanent population, and thus does not” satisfy the
definition of “foreign state” under the Restatement’s standard.
Plaintiffs’ argument remains somewhat obscure. . . . The first possible interpretation of
plaintiffs’ argument is that they ask this court to conceive of the Holy See as two separate entities—
first, a foreign sovereign, recognized by the United States government, and second, an
unincorporated head of an international religious organization. Alternatively, they ask this court not
to consider the Holy See, a single entity, a foreign sovereign in this case because the Holy See was
acting in a non-sovereign capacity when it engaged in the conduct alleged in plaintiffs’ complaint.
Plaintiffs’ argument fails under either construction. With respect to the first alternative—the
two-entity alternative—the district court correctly noted that “[p]laintiffs cite no authority for the
proposition that the Holy See may be sued in a separate, non-sovereign function as an
unincorporated association and as head of an international religious organization.” O’Bryan [v. Holy
See], 490 F. Supp 2d [826,] 830 [(W.D. Ky. 2005)]. To the contrary, courts have generally treated
the Holy See as a foreign state for purposes of the FSIA. . . . Consequently, we reject plaintiffs’
contention that they are not suing the Holy See that has been recognized by the United States
government, but a parallel non-sovereign entity conjured up by the plaintiffs.
The structure and intent of the FSIA also counsel us to reject the plaintiffs’ alternative
capacity approach. As the Supreme Court has explained, by enacting [the] FSIA, Congress intended
to adopt the “restrictive theory” of sovereign immunity, “under which ‘the immunity of the
sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with
respect to private acts (jure gestionis).’” Permanent Mission of India to the U.N. v. City of New
York, 127 S. Ct. 2352, 2357 (2007) (quoting Alfred Dunhill of London, Inc. v. Republic of Cuba,
425 U.S. 682, 711 (1976)).
In order to implement the “restrictive theory” of sovereign immunity and limit immunity to
sovereign acts but not private acts, Congress crafted exceptions to [the] FSIA. See 28 U.S.C.
1605(a). . . . In this way, Congress constructed the FSIA to immunize foreign sovereigns acting in a

public capacity, while ensuring that essentially private activities would be actionable under the
FSIA exceptions.
*
*
*
*
. . . [I]f plaintiffs believe that the Holy See acted in a private capacity, then the plaintiffs are
limited to arguing that an exception to the FSIA applies; such claims cannot serve as reasons to
avoid the FSIA altogether. The exceptions to FSIA capture all instances where Congress has
deemed conduct, if pursued by a foreign sovereign, sufficiently private so as to eliminate foreign
sovereign immunity. In turn, the alternative-capacity argument can only succeed to the extent that it
identifies conduct that fits within one of the exceptions outlined under FSIA. See 28 U.S.C.
§ 1605(a).
*

*

*

*

b. Exceptions to immunity
(1) Commercial activity
Section 1605(a)(2) of the FSIA provides that a foreign state is not immune
from suit in any case “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 connection with a commercial activity of the foreign state
elsewhere and that act causes a direct effect in the United States.”

(i) O’Bryan v. Holy See
In O’Bryan v. Holy See, discussed in A.1.a. supra, the U.S. Court of Appeals
for the Sixth Circuit held that the commercial activity exception to state
immunity did not provide jurisdiction in a suit brought against the Holy See
in connection with alleged sexual abuse by Catholic priests in the United
States. Excerpts follow from the court’s analysis in finding the commercial
activity exception inapplicable (footnote omitted).
___________________
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*
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*
. . . “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.” 28 U.S.C. § 1603(d). In addition, “the commercial activity relied upon by
plaintiff for jurisdictional purposes must be also the activity upon which the lawsuit is based; that is,
there must be a connection between that activity and the act complained of in the lawsuit.” Gould[,

Inc. v. Pechiney Ugine Kuhlmann], 853 F.2d[, 445,] 452 [(6th Cir. 1988)] (citing Riedel v. Bancam,
S.A., 792 F.2d 587, 591 (6th Cir. 1986)).
*
*
*
*
The analysis in [Republic of Arg. v. Weltover, Inc., 504 U.S. 607 (1992)] and [Saudi Arabia
v. Nelson, 507 U.S. 349 (1993)] points to two distinct limitations on the application of the
commercial activity exception. First, the activity must be of the type in which private individuals
engage; if the activities in question are not private, but sovereign in nature, then the commercial
activity exception will not apply. . . .
Second, the Weltover and Nelson cases also instruct courts to avoid the artful pleading of
plaintiffs and look to the core of the activities alleged to be commercial in nature. . . .
*
*
*
*
Both limiting principles apply to plaintiffs’ attempt to invoke the commercial activity
exception . . . . On one front, all of the claims advanced by plaintiffs stem from the promulgation of
the purported 1962 Policy by the Holy See. Indeed, . . . plaintiffs themselves emphasize the force of
the purported policy and the potential for sanction if Holy See employees chose not to comply.
In addition, the gravaman of plaintiffs’ claims is the tortious conduct of priests which was
allegedly facilitated by the tortious conduct of Holy See employees. Thus to allow plaintiffs to
obtain jurisdiction under the commercial activity exception through a semantic ploy would allow
them to “obtain jurisdiction over a claim that Congress did not intend to be brought against a
foreign sovereign.” See Leutwyler [v. Office of Her Majesty Queen Rania Al Abdullah], 184 F.
Supp. 2d [277,] 299 [(S.D.N.Y. 2001)]. We therefore conclude that the commercial activity
exception does not apply.
*

*

*

*

(ii) Swarna v. Al-Awadi
See discussion below in B.2.b.(1).
(iii) Cause of action under customary international law
On November 20, 2009, the U.S. District Court for the District of Columbia
issued its decision in long-running litigation arising from a claim that Iran
expropriated property belonging to an American company during the 1979
Revolution. McKesson Corp. v. Islamic Republic of Iran, 2009 U.S. Dist. LEXIS
109368 (D.D.C. 2009). McKesson originally brought suit in 1982 alleging
that Iran had unlawfully expropriated its dividends and interests in Pak
Dairy, an Iranian dairy company. In 2008 the U.S. Court of Appeals for the
District of Columbia Circuit held that McKesson did not have a cause of
action under the U.S.–Iran Treaty of Amity, Economic Relations, and
Consular Rights, Aug. 15, 1955, 8 U.S.T. 899, 903 (“Treaty of Amity”) and
remanded the case to the district court to address three issues: (1) whether

McKesson had a cause of action under Iranian law; (2) whether, in light of
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), McKesson had a cause of
action under customary international law; and (3) whether the act of state
doctrine applied. McKesson Corp. v. Islamic Republic of Iran, 539 F.3d 485
(D.C. Cir. 2008). The D.C. Circuit also held that the district court properly
found jurisdiction under the commercial activity exception of the FSIA, 28
U.S.C. § 1605(a)(2). Id. For additional background on the litigation, see
Digest 2002 at 219–26 and 519–22; Digest 2003 at 258–67; and Digest
2008 at 155–58.
On September 28, 2009, at the request of the court, the United States
filed a Statement of Interest in the case. Noting the FSIA’s legislative history
and the text of the commercial activities exception, the United States
recommended that the court find that “a plaintiff may not maintain a federal
common law cause of action based on customary international law in a suit
where jurisdiction is premised on the commercial activities exception within
the FSIA.” The U.S. Statement of Interest is available at
www.state.gov/s/l/c8183.htm.
In its November 2009 decision, the D.C. District Court disagreed with
the United States and held that McKesson had “an implied cause of action
under customary international law for expropriation.” McKesson Corp. v.
Islamic Republic of Iran, 2009 U.S. Dist. LEXIS 109368, at *19. In reaching
that conclusion the court stated, “Congress enacted the commercial
activities exception [of the FSIA] on an understanding that courts would
apply causes of action based on customary international law.” Id. at *13.
The court also held that McKesson had a cause of action under Iranian law
and that the act of state doctrine did not apply. Id. at *19. As of the end of
2009, further proceedings remained ongoing before the district court.

(2) Non-commercial tort exception
Section 1605(a)(5) of the FSIA provides that a foreign state is not immune
from suit in any case:
not otherwise encompassed in [the exception for commercial
activity], 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 prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or
interference with contract rights.

(i) O’Bryan v. Holy See
In O’Bryan v. Holy See, discussed in A.1.a. and A.1.b.(1)(i) supra, the U.S.
Court of Appeals for the Sixth Circuit held that the non-commercial tort
exception of the FSIA provided jurisdiction over certain claims in a suit
brought against the Holy See in connection with alleged sexual abuse by
Catholic priests in the United States. Excerpts follow from the court’s
analysis of the elements of the non-commercial tort exception to immunity
(footnotes omitted). See also the discussion of Swarna v. Al-Awadi in
B.2.b.(1).
___________________
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i. Elements of the Tortious Act Exception
(a) “Occurring in the United States”
“Section 1605(a)(5) is limited by its terms . . . to those cases in which the damage to or loss
of property occurs in the United States.” Amerada Hess Shipping Corp., 488 U.S. at 439 (emphasis
omitted). Thus, in contrast to the commercial activity exception, a tortious act having “direct
effects” in the United States will not satisfy the requirements of the tortious activity exception. Id. at
441. . . .
We join the Second and D.C. Circuits in concluding that in order to apply the tortious act
exception, the “entire tort” must occur in the United States. This position finds support in the
Supreme Court’s decision in Amerada Hess Shipping: “the exception in § 1605(a)(5) covers only
torts occurring within the territorial jurisdiction of the United States.” 488 U.S. at 441. Moreover,
the purpose of the tortious activity exception is limited: “Congress’ primary purpose in enacting §
1605(a)(5) was to eliminate a foreign state’s immunity for traffic accidents and other torts
committed in the United States, for which liability is imposed under domestic tort law.” Id. at 439–
40 (citing H.R. Rep., at 14). Thus, it seems most in keeping with both Supreme Court precedent and
the purposes of the FSIA to grant subject matter jurisdiction under the tortious activity exception
only to torts which were entirely committed within the United States.
(b) Caused by an Act or Omission
In Kentucky, “[l]iability for a negligent act follows a finding of proximate or legal cause,”
which is defined as “a finding of causation in fact, i.e., substantial cause, and the absence of a public
policy rule of law which prohibits the imposition of liability.” Deutsch v. Shein, 597 S.W.2d 141,
143–44 (Ky. 1980). . . .

(c) Official or Employee of a Foreign State
Kentucky law appears to have adopted the Restatement (Third) of Agency § 7.07 definition
of employee when addressing claims of vicarious liability: “an employee is an agent whose
principal controls or has the right to control the manner and means of the agent’s performance of
work . . . .” Papa John’s Int’l, Inc. v. McCoy, 2008 Ky. LEXIS 16, at *16 (Ky. 2008) (quoting
Restatement (Third) of Agency § 7.07). . . .
(d) Scope of Employment
“State law, not federal common law, governs whether an officer’s or employee’s action is
within the scope of employment in determining the applicability of the FSIA.” Moran v. Kingdom
of Saudi Arabia, 27 F.3d 169, 173 (5th Cir. 1994). . . . Because the conduct alleged by the named
plaintiffs occurred in Kentucky, Kentucky law applies to the instant case.
Under Kentucky law, for alleged conduct to be considered within the scope of employment
“the conduct must be of the same general nature as that authorized or incidental to the conduct
authorized.” Osborne v. Payne, 31 S.W.3d 911, 915 (Ky. 2000). Thus, “[u]nder the doctrine of
respondeat superior, an employer can be held vicariously liable for an employee’s tortious actions if
committed in the scope of his or her employment.” Papa John’s Int’l, 2008 Ky. LEXIS 16, at *28–
*29. “In the area of intentional torts, the focus is consistently on the purpose or motive of the
employee in determining whether he or she was acting within the scope of employment.” Id. at *29.
However, “[a] principal is not liable under the doctrine of respondeat superior unless the intentional
wrongs of the agent were calculated to advance the cause of the principal or were appropriate to the
normal scope of the operator’s employment.” Osborne, 31 S.W.3d at 915. Applying these
principles, the Kentucky Supreme Court ruled that a priest’s adulterous conduct could not be
considered within the scope of his employment, even though the underlying conduct was
intentional. Osborne, 31 S.W.3d at 915.
ii. Exceptions to the Tortious Act Exception
(a) Discretionary Function Exception to the Tortious Act Exception
The FSIA does not define “discretionary functions.” To interpret the FSIA’s discretionary
function exception, courts typically apply the interpretation of the discretionary function exception
of the Federal Tort Claims Act (the “FTCA”), because “[n]ot only does the language of the FSIA
discretionary function exception replicate that of the [FTCA], 28 U.S.C. § 2680(a), but the
legislative history of the FSIA, in explaining section 1605(a)(5)(A), directs us to the FTCA.” Olsen
[v. Gov’t of Mexico], 729 F.2d [641,] 646 [9th Cir. 1984) (abrogated on other grounds by Joseph v.
Consulate General of Nig., 830 F.2d 1018, 1026 (1987)] (citing H.R. Rep. at 21); see also
Rodriguez v. Republic of Costa Rica, 297 F.3d 1, 8 (1st Cir. 2002); Office of Consulate Gen. of Nig.,
830 F.2d at 1026 (9th Cir. 1987).
In determining whether particular conduct falls under the FTCA’s, and in turn under the
FSIA’s, discretionary function exception, courts apply the . . . Berkovitz test:
The first inquiry is whether the challenged action involved an element of choice or
judgment, for it is clear that the exception “will not apply when a federal statute,
regulation, or policy specifically prescribes a course of action for an employee to
follow.” If choice or judgment is exercised, the second inquiry is whether that choice
or judgment is of the type Congress intended to exclude from liability—that is,

whether the choice or judgment was one involving social, economic or political
policy.
Vickers v. United States, 228 F.3d 944, 949 (9th Cir. 2000) (internal citations omitted) (quoting
Berkovitz v. United States, 486 U.S. 531, 536 (1988)); Rodriguez, 297 F.3d at 9 (applying the twopart Berkovitz test to the FSIA’s discretionary function exception). . . .
*
*
*
*
(b) Arising Out of Misrepresentation or Deceit Exceptions to the Tortious Act Exception
The scope of the misrepresentation or deceit exception to the tortious act exception is an
unsettled matter. Courts generally have looked to the definition of misrepresentation in the FTCA as
a guide for defining the term under the FSIA, relying on the legislative history of the FSIA for such
comparison. See, e.g., Cabiri v. Gov’t of the Republic of Ghana, 165 F.3d 193, 200 n.4 (2d Cir.
1999) (“The FSIA House Report provides that ‘the exceptions provided in subparagraph[] . . . (B) of
section 1605(a)(5) correspond to many of the claims with respect to which the U.S. Government
retains immunity under the [FTCA], 28 U.S.C. 2680(a) and (h).”) (quoting H.R. Rep. at 21); see
also De Sanchez v. Banco Central de Nicar., 770 F.2d 1385, 1398 (5th Cir. 1985).
In addition, both the Second and Ninth Circuits have dismissed claims against foreign
sovereigns where the foreign sovereign allegedly provided false or misleading information
regarding the whereabouts of the plaintiffs’ relatives. See Cabiri, 165 F.3d 193, 200 (dismissing
claim “for emotional injury caused by the refusal of a foreign state, however nefarious, to give its
citizens in the United States full or truthful information concerning its operations”); Kozorowski v.
Russian Fed’n, No. 93-16388, 1997 U.S. App. LEXIS 26266 (9th Cir. Sept. 19, 1997) (dismissing
claims of intentional infliction of emotional distress, fraud and deceit, conspiracy and other claims
because they were premised on the Soviet Union’s failure to disclose its role in the 1940 massacre
of Polish soldiers and therefore arose out of misrepresentation and deceit).
iii. Application of the Tortious Act Exception to the Instant Case
The difficulty in applying the elements of the tortious act exception to plaintiffs’ complaint
is the manner in which plaintiffs have pled their claims. In their complaint, plaintiffs advance the
following claims: violation of customary international law of human rights, negligence, breach of
fiduciary duty, tort of outrage/infliction of emotional distress, deceit and misrepresentation. In each
of their claims, plaintiffs base their theories of liability not only on the actions of the Holy See
itself, but also on the acts of the Holy See’s agents and employees. As a result, we must analyze
each claim to see not only which claims survive, but which parts of each claim survive.
Looking first to the fourth requirement for the application of the tortious act exception, the
Kentucky Supreme Court’s holding in Osborne, 31 S.W.3d at 915, leads to the inescapable
conclusion that the alleged acts of sexual abuse were not done while the alleged tortfeasors were
acting within the scope of their employment. Thus, the tortious act exception to the FSIA’s grant of
immunity cannot apply to permit suit against the Holy See for sexual abuse by its clergy, even if the
other requirements for its application are met.
Furthermore, as per the FSIA’s explicit terms, in order for the tortious act exception to
apply, the tortious acts in question must have occurred in the United States. Therefore, any portion
of plaintiffs’ claims that relies upon acts committed by the Holy See abroad cannot survive. . . .
*

*

*

*

. . . [T]he portions of plaintiffs’ claims that are based upon the conduct of bishops,
archbishops and Holy See personnel while supervising allegedly abusive clergy satisfy all four
requirements of the tortious act exception: this conduct served as a substantial cause of the alleged
abuse; the conduct occurred in the United States; the conduct was within the scope of employment;
and these individuals were, according to the pleadings, Holy See employees.
However, although the four requirements are met for these claims, we must still consider
whether either of the two exceptions to the tortious act exception applies and prevents its
application: the discretionary-function exception and the arising-out-of-misrepresentation-or-deceit
exception.
*
*
*
*
1) Violation of Customary International Law of Human Rights . . . : Plaintiffs plead this
claim against the Holy See itself, stating that
[t]he instructions, mandates and dictates of the Defendant, Holy See in the United
States prohibiting the disclosure of the identity and existence of pedophiles and
sexual predators under its control, thereby placing children in a position of peril, is a
gross violation of well-established, universally recognized norms of international law
of human rights.
This claim does not survive against the Holy See as it pertains to the actual promulgation of the
1962 Policy because the promulgation itself occurred abroad. However, this claim does survive
against the Holy See as it pertains to the conduct of its employees who, pursuant to the 1962 Policy,
violated the terms of the relevant international laws through their tortious supervisory conduct over
the allegedly abusive clergy.
2) Negligence . . . : Plaintiffs present three grounds for negligence in their complaint: failure
to provide “safe care”; failure to “warn”; and failure to report. The failure to warn and failure to
report prongs of the negligence claim survive because they are premised on the conduct of Holy See
employees who were allegedly negligent in their supervision of abusive clergy. However, the claims
of negligence against the Holy See for its own conduct cannot survive because such negligence
would not have occurred in the United States. Furthermore, the claim of failure to provide safe care
does not survive. As the district court noted, the failure to provide safe care amounts to a claim for
negligent hiring. O’Bryan II, 471 F. Supp 2d at 793. And, as outlined above, claims of negligent
hiring fall within the discretionary function exception. . . .
*
*
*
*
3) Breach of Fiduciary Duty . . . : Plaintiffs plead this claim against the Holy See itself,
stating that “a special legal relationship existed between the Plaintiffs and the Defendant Holy See,
in the nature of a fiduciary relationship, which was carried out by and through priests, clerics, and
administrators under the absolute control of the Defendant . . . .” In turn, plaintiffs contend that the
“Defendant breached fiduciary duties owed to the Plaintiffs,” premised upon the “duty to warn
parents” and the “duty to report known or suspected perpetrators.[”] This claim survives against the
Holy See for the actions of its supervising employees occurring in the United States. As has already
been emphasized, the claim cannot survive against the Holy See itself for its own failures to warn or
report because such tortious conduct would have occurred abroad.

4) Tort of Outrage/Infliction of Emotional Distress . . . . This claim cannot survive
against the Holy See as it pertains to the actual promulgation of the 1962 Policy because the
promulgation itself occurred abroad. In addition, it cannot survive against the Holy See for the
conduct of its allegedly abusive priests because the acts of alleged abuse did not occur within the
scope of employment. In contrast, this claim does survive against the Holy See as it pertains to the
conduct of its employees who, pursuant to the 1962 Policy, violated the terms of the relevant
international laws through their tortious supervisory conduct over the allegedly abusive clergy.
We next turn to considering whether the surviving theories of liability, as outlined above,
are precluded by the other exception to the tortious act exception: whether they arise out of
misrepresentation or deceit.
In contrast to Cabiri and Kozorowski, plaintiffs’ claims are not best characterized as
stemming directly from the misinformation disseminated by the Holy See. Instead, plaintiffs’ claims
are more akin to claims of negligent supervision as employees of the Holy See are alleged to have
provided inadequate supervision over those under its care. In this way, these claims resemble other
negligent supervision claims more than they resemble claims brought by the plaintiffs in Cabiri and
Kozorowski. . . . We therefore conclude that, at this stage of the litigation, the plaintiffs’ claims of
violation of customary international law of human rights, negligence, and breach of fiduciary duty
should not be dismissed for “arising out of . . . misrepresentation [or] deceit.” See 28 U.S.C. §
1605(a)(5)(B). We do however dismiss the last two claims advanced by plaintiffs in their complaint
. . . as they do arise out of misrepresentation or deceit.
*

*

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*

(ii) Federal Insurance Co. v. Kingdom of Saudi Arabia
In May 2009, at the invitation of the Court, the United States filed a brief in
the Supreme Court opposing a petition for writ of certiorari by persons
injured in the September 11, 2001 attacks, the families and representatives
of decedents, and insurers, who alleged, among other things, that Saudi
Arabia and several high-ranking Saudi officials bore responsibility for the
attacks because they had funded ostensible charities they knew were
diverting funds to al Qaeda. Federal Insurance Co. v. Kingdom of Saudi
Arabia, Case No. 08-640. The United States argued that the Supreme Court
should not grant review of the case because “[t]he lower courts correctly
concluded that Saudi Arabia and its officials are immune from suit for
governmental acts outside the United States.” As to the claims against Saudi
Arabia itself, while agreeing with the lower courts that the petitioners’
claims did not fall within the non-commercial tort exception of the FSIA, the
United States disagreed with the courts’ analysis in reaching that
conclusion. The United States argued that plaintiffs can bring terrorismrelated claims against foreign states under either the terrorism or the tort
exception rather than the terrorism exception only, as the court of appeals
held. Nonetheless, the United States stated that the court of appeals’
holding on this issue did not warrant the Court’s review. The government’s
arguments on another issue the case presented, concerning the source of

foreign officials’ immunity for acts within their official capacity, are
discussed below in A.3. On June 29, 2009, the Supreme Court denied
certiorari. Federal Insurance Co. v. Kingdom of Saudi Arabia, 129 S. Ct.
2859 (2009).
Additional excerpts below from the U.S. brief elaborate on the
government’s arguments. (One footnote and citations to other submissions
in the case are omitted.) The full text of the U.S. brief is available at
www.justice.gov/osg/briefs/2008/2pet/6invit/2008-0640.pet.ami.inv.html.
___________________
*
*
*
*
2. The court of appeals held that “claims based on terrorism must be brought under the Terrorism
Exception, and not under any other FSIA exception.” In fact, contrary to the court’s analysis, the
tort and terrorism exceptions are not mutually exclusive. But the court was correct that the tort
exception’s territorial limitation cannot be avoided by pleading the kind of “material support” claim
that falls within the terrorism exception when brought against a country designated by the Secretary
of State. To satisfy the domestic tort exception, petitioners must allege that Saudi Arabia, its
officials, or employees, committed tortious acts within the United States. Petitioners’ complaints do
not satisfy that requirement. The court of appeals’ decision is the first to consider the interplay of
the domestic tort and terrorism exceptions in circumstances such as these, and its holding on this
question does not warrant this Court’s review.
a. The domestic tort exception is not categorically unavailable for claims that might be
brought under the terrorism exception if the foreign state were designated by the Secretary of State.
The court of appeals’ reliance on language that the terrorism exception applies only in a “case not
otherwise covered by this chapter,” 28 U.S.C. 1605A(a)(1), was misplaced. The court reasoned
from this language that “there would be no need for plaintiffs ever to rely on the Terrorism
Exception” unless that provision were exclusive. But that conclusion is mistaken, because the tort
exception is more limited than the terrorism exception in a critical respect. The tort exception
“covers only torts occurring within the territorial jurisdiction of the United States,” Amerada Hess,
488 U.S. at 441. By contrast, the terrorism exception contains no geographic limitation. This
difference provides the key to understanding Congress’s passage of the terrorism exception. As
reflected in the legislative history of earlier versions of the legislation, Congress’s concern was not
to impose new limits on the domestic tort exception, but instead to expand jurisdiction to cover a
narrow class of claims based on conduct abroad. See, e.g., H.R. Rep. No. 702, 103d Cong., 2d Sess.
3, 5 (1994) (explaining that the bill would “expand” jurisdiction to include claims by “an American
who is grievously mistreated abroad by a foreign government”). The court erred in concluding that
Congress intended in 1996 to narrow the tort exception so as to exclude from its scope acts of
terrorism committed within the United States.
b. The United States agrees with the court of appeals, however, that the FSIA should not be
construed to allow circumvention of the important limitations Congress imposed on both the
domestic tort and the terrorism exceptions to immunity. Petitioners do not allege that officials or
employees of the Kingdom of Saudi Arabia personally committed tortious acts in the United States
or directed others to do so. The act of Saudi Arabia that forms the central basis of petitioners’
claims is that, outside the United States, it donated funds to ostensible charities. Such acts taken by
a foreign government outside the United States, without more, would fall outside the scope of the
domestic tort exception. Petitioners seek to overcome the territorial limit on the tort exception by

alleging that Saudi Arabia funneled money through those charities to al Qaeda, thereby providing
“material support to [the] terrorists” who committed the September 11 attacks in the United States.
Such allegations of “material support” could establish jurisdiction under the terrorism exception
over a state designated as a state sponsor of terrorism by the Secretary of State. But as the court of
appeals recognized, if all allegations of extraterritorial “material support” by a state to a terrorist
organization were permitted to satisfy the domestic tort exception, “[a]n important procedural
safeguard [of the terrorism exception]—that the foreign state be designated a state sponsor of
terrorism—would in effect be vitiated.”
The domestic tort exception, moreover, requires not merely that the foreign state’s
extraterritorial conduct have some causal connection to tortious injury in the United States, but that
“the tortious act or omission of that foreign state or of any official or employee” be committed
within the United States. 28 U.S.C. 1605(a)(5). . . . The tort exception’s territorial limitation
protects against conflict that would arise from asserting jurisdiction over a foreign government’s
actions taken in its own territory, and also serves to deter foreign courts from exercising jurisdiction
over the United States for actions taken in the United States.
Accordingly, the courts of appeals have recognized that jurisdiction under the tort exception
must be based entirely on acts of the foreign state within the United States. . . .
Petitioners do not argue that jurisdiction under the tort exception could be premised entirely
on acts by Saudi Arabia and its officers or employees in the United States . . . . Rather, petitioners
contend that the domestic acts of the September 11 hijackers should be ascribed to Saudi Arabia
under a concerted-action theory. Jurisdiction under the tort exception, however, cannot be based on
the tortious acts of third parties, even if the applicable substantive law would permit holding the
foreign state liable for those acts under a theory of secondary liability. The jurisdictional inquiry is
one of federal law, and the FSIA tort exception strips foreign states of immunity only for injuries
“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.” 28 U.S.C. 1605(a)(5). It is
the foreign state’s act or omission—not that of any third party—that must occur in the United
States.
. . . Although the court of appeals’ analysis has certain flaws, the court correctly identified
the danger that a complaint making this kind of allegation would evade the limitations of the
domestic tort and terrorism exceptions. Most important, the court’s conclusion that petitioners had
not overcome Saudi Arabia’s immunity was correct. Further review by this Court is therefore
unwarranted.
*

*

*

*

(3) Acts of terrorism
Section 1083(b) of the National Defense Authorization Act for Fiscal Year
2008 (“NDAA”), Pub. L. No. 110-181, 122 Stat. 343, repealed 28 U.S.C. §
1605(a)(7), and § 1083(a) of the NDAA replaced it with a new exception to
immunity under the FSIA relating to support of terrorism, 28 U.S.C. §
1605A. For background on the legislation and related developments, see
Digest 2008 at 457–63. During 2009, as the examples below discuss,
federal courts interpreted the scope of the new terrorism exception and

other issues arising from U.S. nationals’ claims against states for allegedly
supporting terrorism.

(i) Effect of executive and legislative action: Republic of Iraq v. Beaty
On June 8, 2009, the Supreme Court reversed two federal appellate courts’
decisions and held that the President’s 2003 exercise of his statutory
authority to make inapplicable with respect to Iraq provisions of law that
applied to countries that have supported terrorism included § 1605(a)(7),
the former exception to immunity under the FSIA for state sponsors of
terrorism, making that exception inoperative against Iraq. Republic of Iraq
v. Beaty, 129 S. Ct. 2183, 2195 (2009). The President acted in 2003
pursuant to authority provided in § 1503 of the Emergency Wartime
Supplemental Appropriations Act, 2003 (“EWSAA”), Pub. L. No. 108-11, 117
Stat. 579. Excerpts follow from the Court’s analysis in reaching the
conclusion that “[w]hen the President exercised his authority [in 2003] to
make inapplicable with respect to Iraq all provisions of law that apply to
countries that have supported terrorism, the exception to foreign sovereign
immunity for state sponsors of terrorism became inoperative as against
Iraq. As a result, the courts below lacked jurisdiction; we therefore need not
reach Iraq’s alternative argument that the NDAA subsequently stripped
jurisdiction over the cases.” (Footnotes are omitted.) The Court’s opinion
was consistent with views the United States expressed in an amicus curiae
brief filed in December 2008, which Digest 2008 discusses at 464–71 and is
available at www.usdoj.gov/osg/briefs/2008/2pet/6invit/toc3index.html.
___________________
*
*
*
*
III
A
Section 1503 of the EWSAA consists of a principal clause, followed by eight separate proviso
clauses. The dispute in these cases concerns the second of the provisos. The principal clause and
that proviso read:
“The President may suspend the application of any provision of the Iraq Sanctions
Act of 1990: . . . Provided further, That the President may make inapplicable with
respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other
provision of law that applies to countries that have supported terrorism . . . .” 117
Stat. 579.
Iraq and the United States both read the quoted proviso’s residual clause as sweeping in the
terrorism exception to foreign sovereign immunity. Certainly that reading is, as even the Acree
Court acknowledged, “straightforward.” [Acree v. Republic of Iraq, 370 F.3d 41, 52 (D.C. Cir.
2004).]

Title 28 U.S.C. § 1605(a)(7)’s exception to sovereign immunity for state sponsors of
terrorism stripped jurisdictional immunity from a country unless “the foreign state was not
designated as a state sponsor of terrorism.” . . . Because the President exercised his authority with
respect to “all” provisions of law encompassed by the second proviso, his actions made §
1605(a)(7) “inapplicable” to Iraq.
To a layperson, the notion of the President’s suspending the operation of a valid law might
seem strange. But the practice is well established, at least in the sphere of foreign affairs. See
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 322–324 (1936) (canvassing
precedents from as early as the “inception of the national government”). The granting of
Presidential waiver authority is particularly apt with respect to congressional elimination of foreign
sovereign immunity, since the granting or denial of that immunity was historically the case-by-case
prerogative of the Executive Branch. See, e.g., Ex parte Peru, 318 U.S. 578, 586–590 (1943). It is
entirely unremarkable that Congress, having taken upon itself in the FSIA to “free the Government”
from the diplomatic pressures engendered by the case-by-case approach, Verlinden [B.V. v. Central
Bank of Nigeria], 461 U.S. [480,] 488 [(1983)], would nonetheless think it prudent to afford the
President some flexibility in unique circumstances such as these.
B
The Court of Appeals in Acree resisted the above construction, primarily on the ground that
the relevant text is found in a proviso. . . .
*
*
*
*
. . . . [A] proviso is sometimes used “to introduce independent legislation.” [United States v.
Morrow,] 266 U.S. [531,] 535 [(1935)]. We think that was its office here. The principal clause
granted the President a power; the second proviso purported to grant him an additional power. It
was not, on any fair reading, an exception to, qualification of, or restraint on the principal power.
*
*
*
*
Even if the best reading of the EWSAA proviso were that it encompassed only statutes that
impose sanctions or prohibit assistance to state sponsors of terrorism, see Acree, 370 F.3d, at 54, we
would disagree with the Court of Appeals’ conclusion that the FSIA exception is not such a law.
Allowing lawsuits to proceed certainly has the extra benefit of facilitating the compensation of
injured victims, but the fact that § 1605(a)(7) targeted only foreign states designated as sponsors of
terrorism suggests that the law was intended as a sanction, to punish and deter undesirable conduct.
Stripping the immunity that foreign sovereigns ordinarily enjoy is as much a sanction as eliminating
bilateral assistance or prohibiting export of munitions (both of which are explicitly mandated by §
586F(c) of the Iraq Sanctions Act). The application of this sanction affects the jurisdiction of the
federal courts, but that fact alone does not deprive it of its character as a sanction.
It may well be that when Congress enacted the EWSAA it did not have specifically in mind
the terrorism exception to sovereign immunity. The Court of Appeals evidently found that to be of
some importance. Id., at 56 (noting there is “no reference in the legislative history to the FSIA”).
But the whole value of a generally phrased residual clause, like the one used in the second proviso,
is that it serves as a catchall for matters not specifically contemplated . . . . If Congress wanted to
limit the waiver authority to particular statutes that it had in mind, it could have enumerated them
individually.

We cannot say with any certainty (for those who think this matters) whether the Congress
that passed the EWSAA would have wanted the President to be permitted to waive § 1605(a)(7).
Certainly the exposure of Iraq to billions of dollars in damages could be thought to jeopardize the
statute’s goal of speedy reconstruction of that country. At least the President thought so. And in the
“vast external realm, with its important, complicated, delicate and manifold problems,” CurtissWright Export Corp., 299 U.S., at 319, courts ought to be especially wary of overriding apparent
statutory text supported by executive interpretation in favor of speculation about a law’s true
purpose.
*

*

*

*

D
We must consider whether anything in the subsequent NDAA legislation changes the above
analysis. In particular, § 1083(c)(4) of that statute specifically says that “[n]othing in section 1503
of the [EWSAA] has ever authorized, directly or indirectly, the making inapplicable of any
provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any
court of the United States.” 122 Stat. 343. . . .
*
*
*
*
In § 1083(d)(1) of the NDAA, the President was given authority to “waive any provision of
this section with respect to Iraq.” 122 Stat. 343. The President proceeded to waive “all” provisions
of that section as to Iraq, including (presumably) § 1083(c)(4). 73 Fed. Reg. 6571. The Act can
therefore add nothing to our analysis of the EWSAA. . . . Section 1083(c)(4) could change our
interpretation of the disputed EWSAA language only if it has some substantive effect, changing
what would otherwise be the law. And if the President’s waiver does anything, it eliminates any
substantive effect that the NDAA would otherwise have on cases to which Iraq is a party.
IV
Having concluded that the President did render 28 U.S.C. § 1605(a)(7) “inapplicable with
respect to Iraq,” and that such action was within his assigned powers, we consider respondents’
argument that the inapplicability of the provision does not bar their claims, since they arise from
Iraq’s conduct prior to the President’s waiver. . . .
*
*
*
*
As a textual matter, the proffered definition of “inapplicable” is unpersuasive. If a provision
of law is “inapplicable” then it cannot be applied; to “apply” a statute is “[t]o put [it] to use.”
Webster’s New International Dictionary 131 (2d ed. 1954). When the District Court exercised
jurisdiction over these cases against Iraq, it surely was putting § 1605(a)(7) to use with respect to
that country. Without the application of that provision, there was no basis for subject-matter
jurisdiction. 28 U.S.C. §§ 1604, 1330(a). If Congress had wanted to authorize the President merely
to cancel Iraq’s designation as a state sponsor of terrorism, then Congress could have done so.
*
*
*
*
As for the judicial presumption against retroactivity, that does not induce us to read the
EWSAA proviso more narrowly. Laws that merely alter the rules of foreign sovereign immunity,
rather than modify substantive rights, are not operating retroactively when applied to pending cases.
Foreign sovereign immunity “reflects current political realities and relationships,” and its

availability (or lack thereof) generally is not something on which parties can rely “in shaping their
primary conduct.” Republic of Austria v. Altmann, 541 U.S. 677, 696 (2004); see also id., at 703
(SCALIA, J., concurring).
In any event, the primary conduct by Iraq that forms the basis for these suits actually
occurred prior to the enactment of the FSIA terrorism exception in 1996. See Saudi Arabia v.
Nelson, 507 U.S. 349, 351 (1993). That is, Iraq was immune from suit at the time it is alleged to
have harmed respondents. The President’s elimination of Iraq’s later subjection to suit could hardly
have deprived respondents of any expectation they held at the time of their injury that they would be
able to sue Iraq in United States courts.
V
Accordingly, the District Court lost jurisdiction over both suits in May 2003, when the
President exercised his authority to make § 1605(a)(7) inapplicable with respect to Iraq. At that
point, immunity kicked back in and the cases ought to have been dismissed . . . .
In respondents’ view, that is not fatal to their claims. They point to the eighth proviso in
§ 1503 of the EWSAA:
“Provided further, That the authorities contained in this section shall expire on
September 30, 2004, or on the date of enactment of a subsequent Act authorizing
assistance for Iraq and that specifically amends, repeals or otherwise makes
inapplicable the authorities of this section, whichever occurs first.” 117 Stat. 579.
The effect of this provision, they contend, is that the EWSAA waiver expired in 2005, and that
when it did so § 1605(a)(7) was revived, immunity was again stripped, and jurisdiction was
restored. . . .
The premise, however, is flawed. . . .
We think the better reading of the eighth EWSAA proviso (the sunset clause) is that the
powers granted by the section could be exercised only for a limited time, but that actions taken by
the President pursuant to those powers (e.g., suspension of the Iraq Sanctions Act) would not lapse
on the sunset date. If it were otherwise, then the Iraq Sanctions Act—which has never been
repealed, and which imposes a whole host of restrictions on relations with Iraq—would have
returned to force in September 2005. Nobody believes that is so.
*

*

*

*

(ii) Private right of action: Roeder v. Islamic Republic of Iran
On April 21, 2009, the United States, as an intervenor, filed a motion in the
U.S. District Court for the District of Columbia to dismiss a suit that former
hostages held at the U.S. Embassy in Tehran from 1979 to 1981 and their
family members brought against Iran. Roeder v. Islamic Republic of Iran, No.
08-0487 (EGS) (D.D.C. 2009). In 2000 the plaintiffs brought a previous suit
against Iran, which was dismissed for lack of a private right of action
against Iran. Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d 140, 146
(D.D.C. 2002), aff’d, Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C.

Cir. 2003) (collectively “Roeder I”). For additional background on Roeder I,
see Digest 2002 at 523–27; Digest 2003 at 537 and 547; and Digest 2004
at 504 and 554.
In their second suit, the plaintiffs relied on § 1083 of the NDAA,
which, as the United States explained, “in specified circumstances creates a
private right of action against foreign governments that engage in
terrorism.” The U.S. motion to dismiss, excerpted below, argued that §
1083 did not create a cause of action for the plaintiffs or expressly abrogate
the Algiers Accords, which barred their suits. (Some footnotes and citations
to other filings are omitted.) The full texts of the U.S. motion, the U.S. reply,
and the U.S. response to plaintiffs’ memorandum regarding supplemental
authority are available at www.state.gov/s/l/c8183.htm.
___________________
. . . The gratitude of the United States for the service and dedication of [the plaintiff hostages]
cannot be overstated, nor can the suffering and abuse they endured on behalf of this country be
exaggerated; these matters are beyond dispute.
To obtain the release of the plaintiff hostages, the United States, through an international
agreement known as the Algiers Accords, agreed to preclude the prosecution of any claims against
Iran arising out of the hostage taking. That binding international commitment must be honored by
the United States unless and until Congress (1) abrogates the Algiers Accords expressly in
conjunction with relevant legislation, or (2) unambiguously creates a cause of action for the
embassy hostage plaintiffs against Iran. Congress has done neither. Accordingly, plaintiffs have
failed to state a claim upon which relief can be granted. The United States has sought intervention
in this case, and now moves to dismiss, in order to carry out its obligations under the Algiers
Accords.
*
*
*
*
I. Section 1083 Does Not Expressly Abrogate the Accords
Section 1083 does not explicitly abrogate the Algiers Accords. Indeed, it says nothing at all
about them, by name or by description. The courts have made clear that Congress must act with
clarity and specificity if it intends to supersede United States’ treaty obligations. See, e.g., U.S. v.
Palestine Liberation Org., 695 F. Supp. 1456, 1469 (S.D.N.Y. 1988) (noting that where potential
conflict between treaty and subsequent statute was foreseeable, it was “especially important . . . for
Congress to give clear, indeed unequivocal guidance” as to any intention to supersede treaty
obligations). . . .
Congress was well aware of this requirement generally, therefore, before it enacted Section
1083, and this Court’s confirmation of this requirement as regards these very plaintiffs and these
very claims in Roeder I left no doubt that anything short of a clear expression of intent to revoke the
Algiers Accords would have that effect. See Roeder I, 195 F. Supp. 2d at 175–84. No such clarity of
purpose to revoke the Algiers Accords can be derived from the provisions of Section 1083, which is
completely silent about the Accords. Roeder I, 195 F. Supp. 2d at 175 (“‘[L]egislative silence is not
sufficient to abrogate a treaty,’ Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 252 . . .
(1984), or a bi-lateral executive international agreement.’ See Weinberger v. Rossi, 456 U.S. 25, 32 .
. . (1982).”).

Although the requisite clear statement must be found, if at all, in the statutory text, there is
no support for the plaintiffs’ position even in the legislative history of Section 1083, which fails to
mention the Algiers Accords. . . .
. . . [T]he scant legislative history on Section 1083 fails to acknowledge the Accords or
express Congress’ collective will to terminate them. See Roeder I, 195 F. Supp. 2d at 182.
Because the legislative history is sparse, the Court must be “even more vigilant in its refusal
to draw inferences . . . that would fill in the gaps in congressional logic.” Roeder I, 195 F. Supp. 2d
at 183. . . .
In light of the lack of a clear Congressional intent to abrogate the Algiers Accords, Section
1083 should not be interpreted to create a cause of action for plaintiffs against Iran. See Roeder I,
195 F. Supp. 2d at 175 (citing Trans World Airlines v. Franklin Mint Corp., 466 U.S. at 252
(“When a later statute conflicts with an earlier agreement, and Congress has neither mentioned the
agreement in the text of the statute nor in the legislative history of the statute, the Supreme Court
has conclusively held that it can not find the requisite Congressional intent to abrogate.”)). As the
Court concluded in Roeder I, “[u]nless and until Congress expresses its clear intent to overturn the
provisions of a binding agreement between two nations that has been in effect for over twenty years,
this Court can not interpret these statutes to abrogate that agreement.” Roeder I, 195 F. Supp. 2d at
177.
II. Section 1083 Creates No Clear Cause of Action for Plaintiffs Against Iran for the Hostage
Taking
Section 1083 also cannot be said to unambiguously create a cause of action for plaintiffs
against Iran. While it purports to create a cause of action against foreign states, it does not
indisputably create a private right of action against Iran for claims arising from the 1979 hostage
taking. The statute is anything but a model of clarity. Section 1083(a)(1) incorporates a new section
to be codified at 28 U.S.C. § 1605A. The only source of any potential cause of action for this case is
within that new section. Specifically, whether a cause of action exists depends on whether the
foreign state is “a state sponsor of terrorism as described in [28 U.S.C. § 1605A(a)(2)(A)(i)].” 28
U.S.C. § 1605A(c). Thus, in the present case, plaintiffs have a cause of action only if Iran is “a state
sponsor of terrorism as described in [28 U.S.C. § 1605A(a)(2)(A)(i)(II)].”7
The description of a state sponsor of terrorism in 28 U.S.C. § 1605A(a)(2)(A)(i)(II) involves
a two-pronged inquiry. Section 1605A(a)(2)(A)(i)(II) refers to a foreign state that, [1] “in the case
of an action that . . . is filed under this section by reason of section 1083(c)(3) of [the National
Defense Authorization Act for Fiscal Year 2008],” [2] “was designated as a state sponsor of
terrorism when . . . the related action under section 1605(a)(7) . . . was filed . . . .” 28 U.S.C. §
1605A(a)(2)(A)(i)(II). The first inquiry under this standard is whether this case was filed “by reason
of” Section 1083(c)(3). The term “by reason of” is not defined. However, Section 1083(c)(3)
authorizes the filing of an action (such as this case) which arises out of the “same act or incident”
that is the basis for another (“related”) action which has been timely commenced under 28 U.S.C. §
1605(a)(7).8 Because Roeder I was timely filed under 28 U.S.C. § 1605(a)(7), and both Roeder I
7

. . . 28 U.S.C. § 1605A(a)(2)(A)(i)(I) does not create a cause of action for purposes of this case
because Iran was not designated as a state sponsor of terrorism at the time the act of hostage taking
occurred or as a result of that act. Therefore, the question is whether 28 U.S.C. §
1605A(a)(2)(A)(i)(II) creates a cause of action for plaintiffs.
8
Section 1083(c)(3) (“Related Action”) states in relevant part as follows:

and this case arise out of the 1979 Iranian hostage taking, it can be assumed, at least for the sake of
argument, that this case was, strictly in a procedural sense, filed “by reason of” Section 1083(c)(3),
as plaintiffs allege.
The second inquiry is whether Iran was “a state sponsor of terrorism when . . . the related
action under section 1605(a)(7) . . . was filed . . . .” 28 U.S.C. § 1605A(a)(2)(A)(i)(II). . . .
The phrase “related action” refers back to its usage in Section 1083(c)(3), which is entitled
“Related Cases” and is cited earlier in the same sentence (i.e., a state sponsor of terrorism as
described in 28 U.S.C. § 1605A(a)(2)(A)(i) is a foreign state that, “in the case of an action that . . .
is filed under this section by reason of section 1083(c)(3) of [the National Defense Authorization
Act for Fiscal Year 2008],” “was designated as a state sponsor of terrorism when . . . the related
action under section 1605(a)(7) . . . was filed . . . .” 28 U.S.C. § 1605A(a)(2)(A)(i)(II) (emphasis
added)). Section 1083(c)(3) is a subsection of Section 1083(c), which is entitled “Application to
Pending Cases” (emphasis added). These both fall under Section 1083, which bears the general
heading “Terrorism Exception to Immunity.” This structure of the statute therefore indicates that the
terrorism sovereign immunity exception for foreign states created by Section 1083 applies to a
subset of “pending cases,” namely the “related cases” described in Section 1083(c)(3). Thus, to be
considered “related” to this case (which “arises out of” it, as described in section 1083(c)(3)),
Roeder I must have been pending at the time of enactment of Section 1083. Roeder I, however, was
dismissed in 2003, and therefore it was not pending in January 2008 when Section 1083 was
passed.10
The use of the present perfect tense in section 1083(c)(3), to the effect that “[i]f an action
arising out of an act or incident has been timely commenced,” also indicates that a new action
cannot be deemed “related” unless the original action (Roeder I) was pending at the time of
enactment of Section 1083. (Emphasis added). This meaning is reinforced by the more recent
decision in Simon v. Republic of Iraq, 529 F.3d 1187 (D.C. Cir. 2008), in which the Court construed
Section 1083, 28 U.S.C. § 1605A(a)(2)(A)(i)(II), as signifying that a new action could be
considered “‘filed . . . by reason of section 1083(c)(3)’ if a pending ‘related action’ had been timely
commenced.” Simon, 529 F.3d at 1193 (emphasis added); see also id. at 1191 (“Plaintiffs with
‘pending cases’ may invoke new § 1605A in certain circumstances.”). Because Roeder I was
dismissed in 2003 and was not pending when Section 1083 was enacted in January 2008, the
present case is not “related” to Roeder I within the meaning of 28 U.S.C. § 1605A(2)(a)(i)(II).
Given that no “related action” exists as defined in the statute, it is impossible for Iran to have been
designated as a state sponsor of terrorism when “the related action” was filed. Therefore, Iran is not
a “state sponsor of terrorism as described in [28 U.S.C. § 1605A(a)(2)(A)(i)],” 28 U.S.C. §
1605A(c), and plaintiffs have no private right of action against Iran.

If an action arising out of an act or incident has been timely commenced under
section 1605(a)(7) of title 28, United States Code . . . any other action arising out of
the same act or incident may be brought under section 1605A of title 28, United
States Code, if the action is commenced not later than the latter of 60 days after—
(A) the date of entry of judgment in the original action; or (B) the date of the
enactment of this Act.
10
Section 1083 was relevant to numerous other cases still pending against Iran, Cuba, and Libya as
of January 2008, when it was passed. There is thus no reason to believe that Congress intended sub
silentio to create a cause of action for plaintiffs in this case.

*

*

*

*

c. Execution of judgments and other post-judgment actions
(1) Terrorism Risk Insurance Act
(i) Blocked assets and waiver of right of attachment: Ministry of Defense v. Elahi
On April 21, 2009, the Supreme Court reversed the U.S. Court of Appeals
for the Ninth Circuit’s 2007 judgment in a suit by a U.S. victim of terrorism
who had sought to attach Iranian property in the United States to enforce a
wrongful death default judgment he held against Iran. Ministry of Def. &
Support v. Elahi, 120 S. Ct. 1732 (20109). See Digest 2007 at 477–85; see
also Digest 2006 at 612–21; Digest 2005 at 549–55; and Digest 2004 at
516–17 for prior developments in the litigation. The Iranian property at
issue was a $2.8 million arbitral award Iran had obtained in a contract
dispute against a U.S. company, concerning military equipment Iran ordered
in 1977 (“Cubic judgment”). The plaintiff sought to attach the Cubic award
under § 201(a) of the Terrorism Risk Insurance Act (“TRIA”), which permits
persons with terrorism-related judgments against a designated state
sponsor of terrorism to attach “blocked assets” of that state, including its
agencies and instrumentalities. Pub. L. No. 107-297, codified at 28 U.S.C.
§ 1610 note.
In its decision, excerpted below, the Court agreed with two arguments
the United States had presented in an amicus curiae brief submitted in
September 2008 at the Court’s invitation (citations to other submissions
omitted). See Digest 2008 at 484–89; the brief is available at
www.usdoj.gov/osg/briefs/2008/3mer/1ami/2007-0615.mer.ami.html.
First, the Court accepted the U.S. argument that the Ninth Circuit had erred
in holding that the Cubic judgment was a “blocked” asset because the
executive branch, following the Algiers Accords that resolved the 1979–
1981 Tehran hostage crisis, had failed to “unblock” export-controlled
Iranian military assets the United States had frozen. The Ninth Circuit’s
holding was contrary to a key U.S. position in a claim pending before the
Iran–U.S. Claims Tribunal (Case B/61). (The tribunal’s partial award in Case
B/61, issued after the Court’s decision in this case, is discussed in Chapter
8.A.) The Court declined to decide whether or not the assets in question
were now blocked by the State Department’s October 25, 2007 designation,
pursuant to Executive Order 13382, of the Iranian Ministry of Defense as a
proliferator of weapons of mass destruction. Because of the timing of the
designation, this particular issue had not been before the Ninth Circuit.
While the Court noted that in such a situation it would usually remand the
issue to permit the lower court to decide it, in this case, because of its
finding on the second argument presented by the United States (on the

question of relinquishment), it was unnecessary to remand the 2007
blocking issue for further consideration.
Second, the Court reversed the appeals court and held that the
plaintiff had relinquished his right to attach the property when he elected to
receive a payment from the U.S. Treasury under the Victims of Trafficking
and Violence Protection Act of 2000 (“VTVPA” or “VPA”), Pub. L. No. 106386, 114 Stat. 1541. The VTVPA provides that, in electing to receive
payment from the Treasury, a claimant gives up his or her right to attach
Iranian property that is at issue in a claim against the United States before
an international tribunal. As the Court noted, this holding made it
“unnecessary to remand the [2007] blocking question for further
consideration.”
___________________
*
*
*
*
Since Iran is a sovereign nation, Elahi cannot attach the Cubic Judgment unless he finds an
exception to the principle of sovereign immunity that would allow him to do so. See Ministry of
Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U.S. 450 (2006)
(per curiam). As the case reaches us, the Terrorism Risk Insurance Act of 2002 (TRIA), § 201(a),
116 Stat. 2337, note following 28 U.S.C. §1610, provides the sole possible exception. That Act
authorizes holders of terrorism-related judgments against Iran, such as Elahi, to attach Iranian assets
that the United States has “blocked.” Ibid. (emphasis added). . . .
Even if the Cubic Judgment is a blocked asset, however, Elahi still cannot attach it if he
waived his right to do so. . . .
*

*

*

*

II
A
We turn first to the question whether the Cubic Judgment was a “blocked asset.” . . .
*
*
*
*
In 1981, the Treasury Department issued an order that authorized “[t]ransactions involving
property in which Iran . . . has an interest” where “[t]he interest in the property . . . arises after
January 19, 1981.” 31 CFR § 535.579(a)(1) (emphasis added). As the Court of Appeals itself
pointed out, Iran’s interest in the Cubic Judgment arose “on December 7, 1998, when the district
court confirmed the [arbitration] award.” 385 F.3d, at 1224. Since it arose more than 17 years “after
January 19, 1981,” the Cubic Judgment falls within the terms of Treasury’s order. And that fact, in
our view, is sufficient to treat the Judgment as unblocked.
Iran’s interest in the property that underlies the Cubic Judgment also arose after January 19,
1981. As the International Court of Arbitration held, Cubic and Iran entered into their initial
contract before 1981. But they later agreed to discontinue (but not to terminate) the contract. They
agreed that Cubic would try to sell the system elsewhere. And they further agreed that they would
take “final decisions” about who owed what to whom “only . . . once the result of Cubic’s attempt
to resell the System” was “known.”
Cubic completed its sale of the system (to Canada) in October 1982. And the arbitrators
referred to October 1982 as “the date the Parties had in mind when they agreed to await the

outcome of Cubic’s resale attempts.” Only then was Cubic “in a position to reasonably,
comprehensively and precisely account for the reuse of components originally manufactured for
Iran and for any modification costs.” For those reasons, and in light of the arbitrators’ findings, we
must conclude that October 1982 is the time when Iran’s claim to proceeds arose.
The upshot is that, whether we consider Iran’s “interest in property” as its interest in the
Cubic Judgment itself or its underlying interest in the proceeds of the Canadian sale, the interest
falls within the terms of the Treasury Department’s general license authorizing “[t]ransactions
involving property in which Iran . . . has an interest” where “[t]he interest in the property . . . arises
after January 19, 1981.” 31 CFR § 535.579(a). And, as we said, that fact is sufficient for present
purposes to treat the asset as having been unblocked at the time the Ninth Circuit issued the decision
below.
Finally, even if we were to assume (as the Ninth Circuit held) that the relevant asset were
Iran’s pre-1981 interest in the air combat training system itself, we should still conclude that that
asset was not “blocked” at the time of the decision below. As the Government points out, such an
interest falls directly within the scope of Executive Order No. 12281, an unblocking order that
required property owned by Iran to be transferred “as directed . . . by the Government of Iran.” See
also 31 CFR § 535.215(a). . . .
*

*

*

*

III
. . . [T]he second question concerns Elahi’s waiver of his right to attach the Cubic Judgment.
In 2000, Congress enacted a statute that offers some compensation to certain individuals, including
Elahi, who hold terrorism-related judgments against Iran. VPA § 2002, as amended by TRIA §
201(c). The Act requires those who receive that compensation to relinquish “all rights to execute
against or attach property that is at issue in claims against the United States before an
international tribunal, [or] that is the subject of awards rendered by such tribunal.” § 2002(a)(2)(D),
114 Stat. 1542; see also § 2002(d)(5)(B), as added by TRIA § 201(c)(4) (cross referencing §
2002(a)(2)(D)). In 2003 the Government paid Elahi $2.3 million under the Act as partial
compensation for his judgment against Iran. And at that time, Elahi signed a waiver form that
mirrors the statutory language.
The question is whether the Cubic Judgment “is at issue in claims” against the United States
before an “international tribunal,” namely the Iran–U.S. Claims Tribunal. If so, the Cubic Judgment
falls within the terms of Elahi’s waiver. . . .
A review of the record in Iran–U.S. Claims Tribunal Case No. B61 leads us to conclude that
the Cubic Judgment is “at issue” before that Tribunal. In Case No. B61 Iran argued that, between
1979 and 1981, the United States had wrongly prevented the transfer of Cubic’s air combat training
system to Iran. Iran asked the Tribunal, among other things, to order the United States to pay
damages. In its briefing before the Tribunal, Iran acknowledged that any amount it recovered from
Cubic would “be recuperated from the remedy sought” against the United States. And Iran sent a
letter to the United States in which it said that any amounts it actually received from Cubic would
be “recouped from the remedy sought against the United States in Case B61.” But Iran added that
the Cubic Judgment could not be used as a setoff insofar as it had been attached by creditors.
Meanwhile, in a rebuttal brief before the Tribunal, the United States, while arguing that in
fact it owed Iran nothing, added that at the very least Iran must set off the amount “already . . .
awarded” by the International Court of Arbitration (namely, the $2.8 million awarded to Iran from

Cubic) against any money awarded by the Tribunal. And the United States’ demand for a setoff
applies even if third parties have attached the Cubic Judgment.
The upshot is a dispute about the Cubic Judgment. . . .
To put the matter in terms of the language of Elahi’s waiver, one can say for certain that the
Cubic Judgment is “property.” And Case No. B61 itself is a “clai[m] against the United States
before an international tribunal.” We can also be reasonably certain that how the Tribunal should
use that property is also under dispute or in question in that claim. Moreover, since several parties
other than Elahi have already attached the Cubic Judgment, the question whether an attached claim
can be used as a setoff is potentially significant, irrespective of Elahi’s own efforts to attach the
judgment.
Are these circumstances sufficient to place the Cubic Judgment “at issue” in Case No. B61?
. . . Iran and the United States do not dispute the Cubic Judgment’s validity; they do not dispute the
Cubic Judgment’s ownership; and they do not dispute the fact that the United States’ asset freeze
had no adverse effect on the Cubic Judgment or on Iran’s entitlement to the Cubic Judgment. As the
dissent correctly points out, the Judgment is not “at issue” in any of these senses. The Judgment will
neither be suspended nor modified by the Tribunal in Case No. B61, nor is the Judgment property
claimed by Iran from the United States in that case.
But that does not end the matter. The question is whether, for purposes of the VPA, a
judgment can nevertheless be “at issue” before the Tribunal even when it will not be suspended or
modified by the Tribunal and when it is not claimed by Iran from the United States. Here, a
significant dispute about the Cubic Judgment still remains, namely a dispute about whether it can be
used by the Tribunal as a setoff. And in our view, that dispute is sufficient to put the Judgment “at
issue” in the case.
For one thing, we do not doubt that the setoff matter is “under dispute” or “in question” in
Case No. B61, and those words typically define the term “at issue.” Black’s Law Dictionary 136
(8th ed. 2004). In the event that the Tribunal finds the United States liable in Case No. B61, the total
sum awarded to Iran by the Tribunal will depend on whether the Judgment is used as a setoff. And
whether the Judgment can be so used depends, in turn, on whether the United States is right that an
attached judgment should be set off or whether Iran is right that it should not be—a matter in
question before the Tribunal. In that sense, the Judgment is “under dispute.” We recognize that the
dispute is over the use of the Judgment, not the validity of the Judgment. But we do not see how
that fact matters.
For another thing, ordinary legal disputes can easily encompass questions of setoff. . . .
Further, the language of the statute suggests that Congress meant the words “at issue” to
carry the ordinary meaning just described. . . . [T]he statute says that judgment creditors such as
Elahi must
“relinquis[h] all rights to execute against or attach property [1] that is at issue in
claims against the United States before an international tribunal [or] [2] that is the
subject of awards rendered by such tribunal.” VPA § 2002(a)(2)(D), 114 Stat. 1542
(emphasis added); see also § 2002(d)(5)(B), as added by TRIA § 201(c)(4) (crossreferencing § 2002(a)(2)(D)).
Had Congress wanted to limit the property to which it first refers (namely, property that is “at
issue” in a claim) to property that is the subject of a claim, it seems likely that Congress

straightforwardly would have used the words “subject of”—words that appear later (in respect to
awards rendered) in the very same sentence.
Finally, the statute’s purpose leans in the direction of a broader interpretation of the words
“at issue” than that proposed by Elahi. . . . The statute authorizes the attachment of blocked assets,
and it provides partial compensation to victims to be paid (in part) from general Treasury funds. But
it does so in exchange for a right of subrogation, VPA § 2002(c), and for the victim’s promise not to
pursue the balance of the judgment by attaching property “at issue” in a claim against the United
States before the Tribunal. VPA §§ 2002(a)(2)(D), (d)(5)(B), as added by TRIA § 201(c)(4). The
statute thereby protects property that the United States might use to satisfy its potential liability to
Iran.
The Cubic Judgment falls into this category. It is property that the United States could use to
satisfy its potential liability to Iran, but which may be unavailable for that purpose if successfully
attached. With respect to the statute’s revenue-saving purpose, it is difficult to distinguish between
property that is the subject of a claim before a tribunal and property that is in dispute before the
tribunal in respect to its use as an offset.
*

*

*

*

(ii) Attachment of diplomatic properties: Bennett v. Islamic Republic of Iran
On March 31, 2009, the U.S. District Court for the District of Columbia
granted a U.S. government motion and quashed writs of attachment served
against certain Iranian diplomatic properties to enforce a 2007 judgment
against Iran and the Iranian Ministry of Information and Security (“MOIS”).
Bennett v. Islamic Republic of Iran, 604 F. Supp. 2d 152 (D.D.C. 2009). The
court concluded that the properties at issue were immune from attachment
because the United States had used them exclusively for diplomatic
purposes since 1980, when President Jimmy Carter severed diplomatic
relations with Iran and the State Department took custody of Iran’s
diplomatic and consular property. In reaching that conclusion, the court
analyzed various applicable legal authorities, including § 201 of the TRIA,
which specifically excludes diplomatic and consular properties from its
definition of “blocked assets.” The court also stated that the commercial
activity exception to a foreign state property’s immunity from attachment
and execution was inapplicable. In addition, the court stated that the
plaintiffs could not invoke 28 U.S.C. § 1610(g), which § 1083 of the NDAA
added to the FSIA and allows holders of judgments in suits under new §
1605A to attach properties of the foreign state defendants or their agencies
or instrumentalities, because the plaintiffs’ judgment was rendered under
former FSIA § 1605(a)(7). The court also stated that even if the plaintiffs
could invoke § 1083 as a general matter, § 1610(g) does not permit the
attachment of diplomatic property. “[N]othing in 1610(g) indicates that
Congress intended to strip away the immunity long afforded to diplomatic
properties,” the court stated, adding that

in other enactments under the FSIA, such as the TRIA and
the VTVPA [Victims of Trafficking and Violence Protection
Act of 2000, Pub. L. No. 106-386, 114 Stat. 1541],
Congress has clearly and directly addressed the issue of
whether and to what extent diplomatic properties of
terrorist states should be afforded immunity from
attachment and execution. Congress’ complete silence on
the matter in this most recent enactment indicates that
they did not intend to pare back the immunity that they
have long afforded to diplomatic properties.

Bennett, 604 F. Supp. 2d at 170. On May 4, 2009, the plaintiffs appealed to
the U.S. Court of Appeals for the District of Columbia Circuit.
On November 30, 2009, the United States filed a brief in the D.C.
Circuit, addressing the question presented: “whether the district court
properly concluded that the properties at issue are excluded from TRIA’s
definition of ‘blocked assets,’ and thus unavailable for attachment.”
Excerpts below from the U.S. brief summarize the government’s arguments
in support of affirmance of the district court’s judgment (citations to other
submissions in the case omitted). The full text of the U.S. brief is available
at www.state.gov/s/l/c8183.htm.
___________________
*
*
*
*
. . . The United States emphatically condemns the acts of terrorism that gave rise to this judgment,
and has deep sympathy for plaintiffs’ suffering. The United States remains committed to disrupting
terrorist financing and to pursuing those responsible for terrorist acts against U.S. nationals.
Attachment of the properties targeted by plaintiffs’ writs is not permitted under the laws of
the United States, however, and would be inconsistent with obligations set out in the Vienna
Convention on Diplomatic Relations. Because the relations among nations are by nature reciprocal,
the position urged by plaintiffs could have significant implications for U.S. foreign policy and
international relations. In the past, similarly situated plaintiffs have sought to attach many of the
same properties at issue here, and courts have repeatedly determined that these properties are not
subject to attachment. The district court here reached the same conclusion, and quashed appellants’
writs of attachment. That judgment was proper, and should be affirmed.
Plaintiffs do not press the various arguments they advanced in the district court. They now
argue that the properties qualify as attachable “blocked assets” within the meaning of the TRIA.
Their argument on appeal is sufficiently distinct from anything articulated in the district court that it
may be considered waived. In any event, the argument fails on its merits because TRIA specifically
excludes from its definition of “blocked assets” any “property subject to the Vienna Convention on
Diplomatic Relations . . . [that] is being used exclusively for diplomatic or consular purposes.”
TRIA § 201(d)(2)(B)(ii), 116 Stat. at 2340.
As the State Department has determined and as prior cases reflect, the properties at issue in
this case all fall within the statutory definition of “propert[ies] subject to the Vienna Convention on
Diplomatic Relations.” Id. § 201(d)(3), 116 Stat. at 2340. Plaintiffs readily concede that this is true
of four of the five properties at issue, but argue that the fifth—3410 Garfield Street, N.W.—is not

subject to the Vienna Convention. This is a new development on appeal: plaintiffs did not
previously so argue. The argument is thus waived. And, in any event, it is without merit. The
district court found, based on undisputed evidence, that the Garfield Street property was, prior to
1979, a diplomatic residence. By its terms, the Vienna Convention makes clear that, whether or not
it is part of the premises of the mission, the residence of diplomatic staff enjoys the same
protections as the premises of the mission. VCDR, arts. 1(e), 30(1). Moreover, courts have
concluded that deference is owed the State Department on questions of whether a particular
property is protected by the Vienna Convention, and the Garfield Street property has consistently
been recognized as such.
Further, all five subject properties are in the protective custody of the Department of State.
Acting pursuant to a broad delegation of authority and discretion, the Department protects and
preserves the properties in satisfaction of international obligations and to advance long-term U.S.
foreign policy objectives. Plaintiffs nonetheless argue that the properties are not “‘being used
exclusively for diplomatic and consular purposes.’” They neither suggest that the United States, as
custodian of the properties, seeks to achieve any non-diplomatic objective, nor otherwise dispute
that the United States’ sole purpose in maintaining the properties is diplomatic. Rather, they
maintain that TRIA requires a separate and independent assessment of the “the properties’ use,” and
suggest that the leasing of property is necessarily not diplomatic.
Plaintiffs made no argument of this sort in district court. Even if this Court elects to consider
it, plaintiffs’ position does not find support in TRIA’s “plain language,” as they now contend. In
fact, their view rests on a misreading of the statute—one that treats Section 201(d)(2)(B)(ii) as if it
establishes distinct requirements of “diplomatic uses” and “diplomatic purposes.” Plaintiffs’
approach is fundamentally problematic. Contrary to accepted canons of statutory construction,
plaintiffs read TRIA to require, rather than avoid, violations of international treaty obligations.
Moreover, plaintiffs seek to replace the State Department’s lawful exercise of authority (which
reflects powers constitutionally vested in the Executive branch and discretion expressly afforded by
Congress) with judicial determinations on matters of foreign policy.
Finally, even plaintiffs’ erroneous reading of the statute does not establish any basis for
relief in this case. They have not identified any manner in which the property is “being used” that
renders it attachable. Plaintiffs cannot overcome the presumption of immunity to which property of
a foreign state is entitled where they identify no basis for an exception.
*
*
*
*
f. Plaintiffs ultimately suggest that, by enacting TRIA § 201(d)(2)(B)(ii), Congress intended
to abrogate the obligations of the United States under the Vienna Convention on Diplomatic
Relations. They insist that any other reading would undermine Congressional intent.
The plain terms of TRIA refute that proposition, however. Pursuant to Section
201(d)(2)(B)(ii), property cannot be attached if attachment “would result in a violation of an
obligation of the United States under the Vienna Convention on Diplomatic Relations,” § 201(d)(3),
116 Stat. at 2339 (defining “property subject to the Vienna Convention on Diplomatic Relations”),
unless the United States has elected to abandon its treaty obligations. Id. § 201(d)(2)(B)(ii), 116
Stat. at 2340. Congress thus chose to structure the statute so as to avoid treaty violations, not to
require them (as plaintiffs urge). See also, e.g., Weinberger v. Rossi, 465 U.S. 25, 32 (1982) (It has
been a maxim of statutory construction since the decision in Murray v. The Charming Betsy, [6

U.S.] 2 Cranch 64, 118 (1804), that ‘an act of congress ought never be construed to violate the laws
of nations, if any other possible construction remains.’”).12
The necessary consequence of a successful attachment of the properties sought by plaintiffs
is that the United States would be unable to fulfill its obligation to “respect and protect” the
premises of Iran’s mission. See, e.g., Weinstein v. Islamic Republic of Iran, 274 F. Supp. 2d 53, 60–
61 (D.D.C. 2003). Indeed, it would require the United States to renege on its assurance to Algeria
that it would “retain custody of these properties until Iran releases to the custody of the Government
of Switzerland Protecting Power the diplomatic and consular properties owned by the United States
in Iran.” Because the plaintiffs’ interpretation of Section 201(d)(2)(B)(ii) would lead to a violation
of the United States’ treaty obligations under the Vienna Convention, the district court correctly
rejected it. Cf. Roeder v. Islamic Republic of Iran, 333 F.3d 228, 237–38 (D.C. Cir. 2003) (noting
that “neither a treaty nor an executive agreement will be considered ‘abrogated or modified by a
later statute unless such purpose on the part of Congress has been clearly expressed,’” and on this
basis concluding that an amendment to the FSIA did not abrogate the Algiers Accords) (citations
omitted).
*

*

*

*

(2) Presumption of immunity for foreign state property
On June 25 and 26, 2009, the United States filed briefs in the U.S. Courts of
Appeals for the Seventh and Ninth Circuits as amicus curiae in cases arising
from the efforts of U.S. victims of terrorism to satisfy their judgments
against Iran. Rubin v. Islamic Republic of Iran, No. 08-2805 (7th Cir.) and
Peterson v. Islamic Republic of Iran, No. 08-17756 (9th Cir.). In the Ninth
Circuit litigation, the family members of the 241 U.S. servicemen who died
in the 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon, sought
to satisfy a $2.6 billion default judgment against Iran and Iranian
government agencies in connection with the bombing. In its brief, the
United States supported affirmance of a district court’s dismissal, on
sovereign immunity grounds, of the plaintiffs’ effort to compel Iran to
assign its right to receive payments from foreign shipping companies for
their use of Iran’s harbor facilities. See Peterson v. Islamic Republic of Iran,
264 F. Supp. 2d 46, 48 (D.D.C. 2003); Peterson v. Islamic Republic of Iran,
515 F. Supp. 2d 25 (D.D.C. 2007).
In the Seventh Circuit litigation, the plaintiffs sought to satisfy a
default judgment against Iran awarding them $71.5 million in compensatory
damages for injuries they sustained in a Hamas-orchestrated terrorist
attack in Jerusalem in 1997. In its brief, the United States supported reversal
of a district court’s 2006 judgment holding that the immunity of a foreign
12

While TRIA does not require the violation of longstanding treaty obligations, it nonetheless
facilitates recovery by various judgment creditors. For example, under TRIA § 201, certain
judgment creditors may attach a foreign state’s nondiplomatic property even if the state did not use
that property for commercial activities; such property was not attachable before TRIA’s enactment.

state’s property is an “affirmative defense,” subject to “forfeiture” unless the
foreign state appears to assert its immunity. Rubin v. Islamic Republic of
Iran, 436 F. Supp. 2d 938, 941 (N.D. Ill. 2006). See also Campuzano v.
Islamic Republic of Iran, 281 F. Supp. 2d 258, 261–68 (D.D.C. 2003).
Both U.S. briefs set forth the view that because foreign sovereign
assets are presumptively immune, a court must consider a foreign state’s
immunity on its own initiative even if the foreign state does not appear in
the litigation to assert its immunity and find applicable one of the FSIA’s
exceptions to immunity before issuing an order of attachment or execution
against that state’s property. Excerpts follow from the U.S. brief in Peterson
(footnotes omitted). U.S. views on other legal issues raised in these cases
are discussed below in A.1.c.(3)–(5) and A.2. The full texts of the
government’s briefs in both cases are available at
www.state.gov/s/l/c8183.htm.
___________________
*
*
*
*
A. . . . [T]he FSIA’s text and structure make clear that a district court must consider sua sponte
whether foreign state property is immune before permitting enforcement measures against that
property.
First, and as noted, the statute creates a presumption of immunity from execution for foreign
state property, and also requires judicial review, before permitting an order of attachment or
execution. See 28 U.S.C. §§ 1609, 1610(a), (c). This approach evinces Congress’ intent to protect
foreign state property absent a judicial finding that an exception to immunity applies.
Furthermore, one of the exceptions to immunity for foreign state property applies where a
foreign state waives immunity, § 1610(a)(1). There would seem to be no need for this provision if,
as the plaintiffs argue, a foreign state waives immunity from execution unless it appears to raise the
claim. Section § 1610(a)’s waiver provision “is governed by the same principles that apply to
waivers of immunity from jurisdiction,” H.R. Rep. 94-1487, at 28, and Congress “anticipated, at a
minimum,” that waiver from jurisdictional immunity “would not be found absent a conscious
decision to take part in the litigation and a failure to raise sovereign immunity despite the
opportunity to do so.” Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 378 (7th Cir.
1985).
Similarly, under the jurisdictional provisions of the FSIA, §§ 1604–1605, a court must
consider sua sponte whether an exception to foreign state immunity from suit applies. See Verlinden
[B.V. v. Central Bank of Nigeria], 461 U.S. [480,] 494 n.20 [(1983)]. The FSIA’s execution
provisions are modeled on the jurisdictional provisions, see H.R. Rep. 94-1487, at 8, 27, and the
practice of sua sponte consideration of immunity from suit also supports sua sponte consideration
of immunity from execution.
Taken together, these provisions strongly support the conclusion that, as the Fifth Circuit
recognized in Walker v. Republic of Congo, 395 F.3d 229, 233 (5th Cir. 2004), arguments about
who has standing to raise a claim that foreign state property is immune from attachment are
“irrelevant” under the FSIA.
*

*

*

*

B. As the Supreme Court recently recognized in Republic of Philippines v. Pimentel, 128 S.
Ct. 2180, 2190 (2008), judicial seizure of the property of a foreign state “may be regarded as an
affront to its dignity and may affect our relations with it.” Sua sponte review of the statutory
exceptions to immunity from execution protects against unjustified exercises of judicial power that
could harm our foreign relations, potentially place the United States in violation of its international
obligations, and lead to disadvantageous treatment of the United States in foreign courts.
The Department of State and the Department of Justice explained in a joint section-bysection analysis of the proposed legislation ultimately enacted as the FSIA that “[i]t would be
inappropriate, and probably in violation of international law, to allow the successful litigant to levy
on any assets of a foreign state because these may be used for strictly governmental and sovereign
purposes.” Hearing on H.R. 3493 before Subcomm. on Claims and Government Relations of House
Judiciary Committee, 93d Cong., 1st Sess. 45 (Jun. 7, 1973). The concern about inappropriate
enforcement measures is not merely hypothetical. In FG Hemisphere Assocs., LLC v. Democratic
Republic of Congo, 447 F.3d 835 (D.C. Cir. 2006), for example, the district court entered a default
judgment on a motion seeking execution against the diplomatic property of a foreign state, which
was entitled to immunity under the Vienna Convention on Diplomatic Relations. An assignment
order by a U.S. court also could lead to friction in our foreign relations by purporting to impose
obligations on foreign corporations with possession of foreign state assets, which might have
inconsistent obligations with regard to those assets as a matter of domestic law or by contract.
An order by a U.S. Court authorizing execution against foreign state property also could
have consequences for the treatment of the United States abroad under principles of reciprocity. As
the D.C. Circuit recognized in Persinger v. Islamic Republic of Iran, 729 F.2d 835, 841 (D.C. Cir.
1984), because “some foreign states base their sovereign immunity decisions on reciprocity,” a U.S.
court’s decision to exercise jurisdiction over a foreign state can “subject the United States to suits
abroad” in like circumstances. Similarly, a U.S. court’s order permitting execution or attachment of
foreign state property used for a public, governmental purposes could encourage foreign courts to
issue like orders against United States property abroad. These considerations all militate heavily in
favor of a court’s sua sponte consideration of immunity prior to ordering execution or attachment.
*

*

*

*

(3) Assignment of a foreign state’s assets outside the United States
The U.S. brief in Peterson, discussed in A.1.c.(2) supra, also argued that if a
foreign state’s assets are not subject to execution under the FSIA, a court
cannot order the state to assign them to a judgment creditor. Excerpts
below from the brief elaborate upon the government’s views (footnotes
omitted).
___________________
*
*
*
*
The district court correctly refused to order the foreign state defendant to assign to the plaintiffs in
satisfaction of their judgment certain rights to payment from CMA CGM. [Editor’s note: CMA
CGM is a French shipping company.] The plaintiffs have conceded that the property held by CMA
CGM is located outside the United States, and thus is immune from execution under the FSIA. The

district court’s authority to execute against foreign state property is restricted to the circumstances
set forth in 28 U.S.C. §§ 1609–1611. There is no indication in the statutory text or history that
Congress intended for litigants to be able to sidestep these restrictions simply by seeking an order of
assignment purporting to transfer ownership of immune assets, rather than by seeking an order of
execution against those same assets.
The plaintiffs argue that the assignment order they seek is appropriate notwithstanding the
limitations on execution under the FSIA because the order would not itself effectuate transfer of
possession of foreign state property, but would require enforcement by a foreign court. Of course, a
third party obligor may choose to comply with a U.S. court’s assignment order and transfer
possession of foreign state property that is immune from direct execution, rather than seek to
challenge that order in court, making foreign enforcement unnecessary (and making the practical
effect of the assignment order identical to execution). Furthermore, it is entirely likely that
judgment creditors would seek enforcement of a U.S. Court’s assignment order without regard to
any limits that would otherwise apply in a foreign court to efforts to execute against foreign state
property. In theory, an assignment order of this type might be used to circumvent the immunity
requirements of both the U.S. and the foreign court.
In any event, the plaintiffs’ distinction does not demonstrate tha[t] an assignment order
directed at foreign state property abroad is appropriate. Such an order would purport to effectuate a
change in ownership of foreign state property that is outside the Court’s jurisdiction and immune
from execution under the FSIA. Such an assignment order, transferring property interests in order to
satisfy a judgment against a foreign state, is in every meaningful sense an order of execution. This
Court should not permit this blatant end-run around the careful limits in §§ 1610 and 1611.
“The FSIA did not purport to authorize execution against a foreign state’s property * * *
wherever that property is located around the world.” Autotech Technologies LP v. Integral Research
& Devel. Corp., 499 F.3d 737, 750 (7th Cir. 2007), cert. denied, 128 S. Ct. 1451 (2008). Such a
judicial act would constitute a “breathtaking assertion of extraterritorial jurisdiction,” 499 F.3d at
750, and is contrary to normal principles of territorial jurisdiction, which recognize the primacy of a
foreign court’s authority over property located within its own territory.
*
*
*
*
The United States is aware of no decision by a U.S. court ordering assignment of a foreign
state’s worldwide assets to satisfy a judgment, and courts in very similar circumstances have
refused to order assignment of property that is immune from execution under the FSIA.
*

*

*

*

(4) Notice requirements
The U.S. brief in Peterson, discussed in A.1.c.(2) supra, also argued that a
judgment creditor seeking enforcement against a foreign state must provide
“adequate notice” to that state, relying on methods comparable to the ones
set out in 28 U.S.C. § 1608(a). Excerpts below provide U.S. views on that
issue.

___________________
*
*
*
*
In denying the plaintiffs’ motion for an assignment, the district court also relied on the fact that the
plaintiffs did not provide service in accordance with 28 U.S.C. § 1608(a) in registering their
judgment and moving for an assignment of assets. The United States agrees that a judgment creditor
must provide adequate notice to a foreign state of proceedings seeking enforcement of a default
judgment. Although § 1608(a) is not directly applicable, it provides a helpful model for what
constitutes adequate service. The plaintiffs’ failure to provide adequate service provides an
independent and sufficient basis for affirmance.
The FSIA “preserve[s] a distinction” between a foreign state’s jurisdictional immunity from
an action brought in a U.S. court and its “immunity from having its property attached or executed
upon.” Ministry of Defense for Armed Forces of Islamic Republic of Iran v. Cubic Defense Sys.,
Inc., 385 F.3d 1206, 1218 (9th Cir. 2004), vacated on other grounds, 546 U.S. 450 (2006).
Reflecting Congress’s recognition of the significant interests at stake in execution, the FSIA
requires that attachment or execution must be ordered by “the court,” and only after a judicial
determination “that a reasonable period of time has elapsed following the entry of judgment” or
notice of default judgment. 28 U.S.C. § 1610(c). This is unlike the normal rule for private litigation,
where execution can often be initiated by application to a court clerk or sheriff. By preventing
execution except by court order, and by requiring the passage of a reasonable time following entry
of default judgment, Congress clearly envisioned that there would be a meaningful opportunity for
the foreign sovereign to be heard at the enforcement stage to assert immunity.
Because of the important interests at stake when a judgment creditor seeks to execute
against a foreign state’s property, and because the foreign state might not have participated in the
underlying litigation addressing liability, it is critically important that a foreign state have notice
that its property is subject to enforcement efforts and an opportunity to appear and to assert
immunity from execution. See, e.g., Connecticut Bank of Commerce, 309 F.3d at 251. Courts have
“stressed a foreign sovereign’s interest—and our interest in protecting that interest—in being able to
assert defenses based on its sovereign status.” FG Hemisphere, 447 F.3d at 838.
Furthermore, the FSIA itself makes clear that Congress intended for foreign states to be
notified not only of the initiation of a lawsuit, but also of the entry of a subsequent default judgment
that might be the basis for enforcement proceedings. Section 1608(e) provides that a foreign state
must receive notice of a default judgment using the same methods of service required for the
summons and complaint, and § 1609(c) provides that no attachment or execution shall be permitted
until the district court “determine[s] that a reasonable period of time has elapsed following the entry
of judgment and the giving of any notice required under section 1608(e).” Notably, notice of the
default judgment in the underlying merits action in this case does not appear to have been made in
compliance with these requirements. See Peterson v. Islamic Republic of Iran, Civ. 1:01-cv-2094
RCL, Affidavit of Service of Process of Judgment Pursuant to 28 U.S.C. § 1608(e), Dkt. 352 (filed
June 23, 2008) (stating that copy of default judgment was mailed by plaintiff’s counsel to Iranian
Ministry of Foreign Affairs).
Even following a default judgment, any pleading “asserting new or additional claims”
against a foreign state must be served in conformance with § 1608(a). See Fed. R. Civ. P. 5(a),
4(j)(1). In light of the distinct rights and interests implicated for the first time where a judgment
against a foreign state is sought to be enforced, a motion seeking an order of enforcement against
foreign state property can be viewed as analogous to a pleading asserting a new claim for relief.

More generally, all of these provisions and rules reflect an intent that a foreign state be
provided with meaningful notice of critical developments in the litigation, typically in accordance
with the methods for service identified in § 1608(a). Although § 1608(a) is not directly applicable to
efforts to execute against foreign sovereign property, it nevertheless serves as a model for what
constitutes effective notice to the foreign state. Cf. H.R. Rep. No. 94-1487, at 13–14 (explaining
that Section 1608 “satisfies the due process requirement of adequate notice”).
*

*

*

*

(5) Third-party assertions of immunity
The U.S. brief in Rubin, discussed in A.1.c.(2) supra, also addressed the
significance of third-party assertions of an absent foreign state’s immunity,
which the United States often relies upon to protect U.S. interests abroad.
Specifically, the United States argued that the court should have considered
the views that the Chicago museums and the United States presented
concerning the artifacts’ immunity. The government stated:
Just as the United States relies on foreign custodians of
U.S. property to protect U.S. interests abroad, so may
foreign states rely on U.S. custodians to protect their
interests here. The University of Chicago’s Oriental
Institute has housed the Persepolis and Chogha Mish
collections for decades pursuant to agreements with Iran.
The University thus has a direct interest in plaintiffs’
attempt to execute on these collections. Indeed, an order
of execution may subject a private party in possession of
foreign state assets to competing legal obligations with
regard to those assets. Cf. Credit Suisse v. U.S. Dist.
Court, 130 F.3d 1342, 1348 (9th Cir. 1997). The
University’s standing to protect foreign state assets in its
possession cannot seriously be questioned. The Museum
of Natural History claims ownership of the Herzfeld
collection, and its standing to contest execution is
evident.
. . . Even apart from the foreign policy concerns
that underlie all foreign sovereign immunity
determinations, the United States has a particular interest
in one of the artifact collections that plaintiffs seek to
attach. As our declaration explained, the Chogha Mish
collection is the subject of a claim by Iran against the
United States in proceedings before the Iran–U.S. Claims
Tribunal. [citation omitted] The United States thus has a
direct interest in the proper disposition of that property. .
..

(6) Post-judgment litigation and application of NDAA amendments
(i) Availability of new provisions concerning payment of special masters
As discussed in A.1.c.(2) supra, the Peterson plaintiffs’ post-judgment
litigation continued in 2009. On January 5, 2009, the U.S. District Court for
the District of Columbia denied the plaintiffs’ motions for payment of
special masters who had assisted the court in the earlier litigation by
recommending amounts for the court to award in damages. Peterson v.
Islamic Republic of Iran, 01-2094 (RCL) (D.D.C. 2009); 01-2684 (RCL)
(D.D.C. 2009). The plaintiffs sought the funding under § 1605A(e), which
provides:
(1) IN GENERAL.—The courts of the United States may
appoint special masters to hear damage claims brought
under this section.
(2) TRANSFER OF FUNDS.—The Attorney General shall
transfer, from funds available for the program under
section 1404C of the Victims of Crime Act of 1984 (42
U.S.C. 10603c) to the Administrator of the United States
district court in which any case is pending which has
been brought or maintained under this section such
funds as may be required to cover the costs of special
masters appointed under paragraph (1). Any amount paid
in compensation to any such special master shall
constitute an item of court costs.
On July 25, 2008, the United States had filed a response to the plaintiffs’
motions at the court’s request, expressing the view that payment was not
justified under the circumstances. In its order, the court agreed with the
United States, stating:
As the United States correctly observes, these
consolidated cases are maintained under 28 U.S.C. §
1605(a)(7), rather than the new terrorism exception,
Section 1605A . . . . Accordingly, the new provisions in 28
U.S.C. § 1605A(e) are not applicable to these particular
cases because § 1605A(e)(2) provides for the payment of
special masters only in those cases brought or
maintained pursuant to the new enactment, 1605A. This
conclusion is also compelled by the case of Simon v.
Republic of Iraq, 529 F.3d 1187 (D.C. [Cir.] 2008). As the
D.C. Circuit observed: “[A] plaintiff in a case pending
under § 1605(a)(7) may not maintain that action based

upon the jurisdiction conferred by § 1605A; in order to
claim the benefits of § 1605A, the plaintiff must file a
new action under that new provision.” Id. at 1192. The
plaintiffs in these actions have not filed under that new
enactment, and therefore they cannot avail themselves
[of] the special masters provisions.
The court’s unpublished order and the U.S. response are available at
www.state.gov/s/l/c8183.htm.

(ii) Exceptions to immunity from attachment or execution
On March 31, 2009, the U.S. District Court for the District of Columbia
denied the Peterson plaintiffs’ motions for appointment of receivers with
broad powers to help them satisfy their judgment against Iran. Peterson v.
Islamic Republic of Iran, 01-2094 (RCL) (D.D.C. 2009); 01-2684 (RCL)
(D.D.C. 2009). As the court explained, the plaintiffs argued that new §
1610(g) of the FSIA “completely eliminates Iran’s sovereign immunity with
respect to its property, and thus that property should . . . be turned over to
court-appointed receivers.” Section 1610(g)(1) and (2) provide:
(1) IN GENERAL.—Subject to paragraph (3) [concerning
third-party joint property holders], the property of a
foreign state against which a judgment is entered under
section 1605A, and the property of an agency or
instrumentality of such a state, including property that is
a separate juridical entity or is an interest held directly or
indirectly in a separate juridical entity, is subject to
attachment in aid of execution, and execution, upon that
judgment as provided in this section, regardless of—
(A) the level of economic control over the property
by the government of the foreign state;
(B) whether the profits of the property go to that
government;
(C) the degree to which officials of that government
manage the property or otherwise control its daily affairs
(D) whether the government is the sole beneficiary
in interest of the property; or
(E) whether establishing the property as a separate
entity would entitle the foreign state to benefits in United
States Courts while avoiding its obligations.
(2) UNITED STATES SOVEREIGN IMMUNITY
INAPPLICABLE.—Any property of a foreign state, or
agency or instrumentality of a foreign state, to which

paragraph (1) applies shall not be immune from
attachment in aid of execution, or execution, upon a
judgment entered under section 1605A because the
property is regulated by the United States Government by
reason of action taken against that foreign state under
the Trading With the Enemy Act or the International
Emergency Powers Act.
The court based its decision on the same grounds as its earlier decision to
deny the same plaintiffs’ petition for payment of special masters, discussed
in A.1.c.(6)(i) supra, stating:
. . . By its express terms, § 1610(g) applies only to
“judgments entered under 1605A.” Notably, plaintiffs
could have converted their judgment under § 1605(a)(7)
into a new action under § 1605A. See § 1083(c). Plaintiffs
failed to do so. Accordingly, plaintiffs are not entitled to
reap the benefits of any subsequent changes in the law
relating to the degree of immunity accorded to Iran’s
property under the FSIA.
The court’s unpublished order and the Statement of Interest the United
States filed on March 13, 2009, are available at
www.state.gov/s/l/c8183.htm.

(iii) In re Islamic Republic of Iran Terrorism Litigation
On September 30, 2009, Judge Royce C. Lamberth, Chief Judge of the U.S.
District Court for the District of Columbia, issued an omnibus opinion, In re
Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31 (D.D.C. 2009)
(“Lamberth Opinion”), purporting to “consider whether and to what extent . .
. recent changes in the law should apply retroactively to a number of civil
actions against Iran that were filed, and in many instances, litigated to a
final judgment prior to the enactment of the 2008 NDAA,” which amended
the FSIA. The court raised, sua sponte, the question of whether § 1083(c) of
the NDAA “usurp[s] the prerogative of the judiciary to decide cases under
Article III and thereby offend[s] the principle of separation of powers
enshrined in our Constitution.” Lamberth Opinion at 37. Specifically, the
court examined the provisions of § 1083(c) that direct courts to disregard
the judicial doctrines of res judicata and collateral estoppel with respect to
any matters litigated in a prior FSIA terrorism case and, arguably, to reopen
final judgments entered under the previous version of the terrorism
exception, 28 U.S.C. § 1605(a)(7), for re-litigation. The court held that the
statute “withstands constitutional scrutiny.” Id.

However, the “Court also reache[d] an even more fundamental
conclusion: Civil litigation against Iran under the FSIA state sponsor of
terrorism exception represents a failed policy.” Id. After surveying the
history of the litigation under the terrorism exception of the FSIA in the D.C.
Circuit, Judge Lamberth offered a 30-page critique of the policy behind
victims’ litigation entitled “A Call for Meaningful Reform.” Lamberth Opinion
at 120–37. In this section, Judge Lamberth criticized the terrorism exception
in the FSIA as an “empty promise,” id. at 122, and opined that “[w]ith
virtually no Iranian assets within the jurisdiction of our courts to satisfy
judgments . . . the great travesty in all this is that our political branches
have essentially told victims of terrorism to continue their long march to
justice down a path that leads to nowhere.” Id. at 125. The court also noted
that “these actions frequently run into direct conflict with other sources of
law” and that they sometimes negatively impact “the President’s powers to
manage national security” issues with Iran. Id. at 126.
By way of a solution, Judge Lamberth called upon Congress and the
President to “pull together to find meaningful, workable solutions, rather
than finding new and creative ways to push these tragic claims back onto
the Courts.” Id. at 133. The court suggested a claims commission,
administered by the executive branch, which would adjudicate claims under
the terrorism exception and make recommendations on how best to
structure a large settlement with Iran in the event of normalization of
relations between the United States and Iran. Id. at 134–35. Finally, the
court invited the United States to file a brief in which it might express its
views regarding any of the issues raised by the Lamberth Opinion. Id. at
137.
On November 30, 2009, the United States filed its response as the
court had requested. In re Islamic Republic of Iran Terrorism Litig., 01-cv02094 (RCL) (D.D.C. 2009). In its response, the United States noted its
appreciation to the court for its “efforts to resolve complex issues in this
intricate field of law” and for the opportunity to comment on the opinion.
Specifically, the United States noted that it “closely examines the need to
participate in these cases and does so only when it deems participation
necessary to address the interests of the United States.” The United States
continued:
That judicious approach derives from an inherent
dilemma identified by the Court in its opinion: The United
States in no way seeks to stand as an “adversar[y]” to
victims of terrorism in their pursuit of justice, but is
compelled to participate when the plaintiffs’ specific
attempts to recover on their judgments “run into direct
conflict with other sources of law” or the national
interests of the United States. [citation omitted]

Consistent with this approach, the United States
does not have any specific comment at this time
regarding the legal issues identified by this Court’s
opinion. The United States recognizes and appreciates
this Court’s attention in its opinion to previous filings by
the United States on the viability of the drastic remedy of
receivership, the limitations on the scope of 28 U.S.C. §
1610(g)(2), as well as the retroactivity problems that
would accompany the appointment of Special Masters for
work performed to effectuate a judgment pursuant to 28
U.S.C. § 1605(a)(7) [citations omitted]. The United States
is also appreciative of this Court’s offer to solicit the
views of the United States on any future motions on the
receivership issue. [citation omitted]
The United States will continue to monitor these,
and other, issues as they arise in the context of specific
cases and motions filed by the plaintiffs, and will
consider participation in litigation on those issues in the
appropriate context where the need may arise. At this
time, however, the United States hesitates to comment on
issues raised by this Court’s reasoned opinion out of
concern that such views would not be narrowly tailored to
particular facts in a given case.
*
*
*
*
Apart from the specific legal issues identified, this
Court stated in its opinion that the “more important[]”
issue to be addressed is the consideration of whether
there is “a more viable system of redress for these tragic
and difficult cases” than the judicial system. [citation
omitted] The Executive Branch will continue to evaluate
its policy with respect to the system of recovery for
victims of terrorism with this Court’s opinion in mind,
endeavoring to provide justice for victims while
simultaneously preserving the important diplomatic and
national interests of the United States.
The full text of the U.S. brief is available at www.state.gov/s/l/c8183.htm.

d. In rem action
On December 22, 2009, the U.S. District Court for the Middle District of
Florida dismissed claims to the remains of a shipwreck and related artifacts
discovered at a site in international waters for lack of subject matter

jurisdiction under the FSIA. Odyssey Marine Exploration, Inc. v. Unidentified,
Shipwrecked Vessel, 675 F. Supp. 2d 1126, 1129 (M.D. Fla. 2009). The court
also vacated an arrest warrant the court had issued previously against the
“vessel, its apparel, tackle, appurtenances and cargo.” Id. at 1131.
According to the report and recommendation of the magistrate judge, dated
June 3, 2009, which the district court adopted and incorporated into its
order, Odyssey Marine Exploration Inc. (“Odyssey”) initiated the in rem
action after discovering artifacts from a shipwreck site in international
waters. Peru (based on its claim that the coins found at the shipwreck site
had their origins in Peru) and 25 descendants of persons who are claimed to
have had property on board the ship when it sank also filed claims to the
items at the shipwreck site.
In granting Spain’s motion to dismiss, the court noted its “emphatic
agreement . . . with the Magistrate Judge’s conclusion that no genuine,
plausible claim persists that the site at issue is anything other than the site
of the wreck of the Spanish naval vessel Nuestra Señora de las Mercedes.”
Id. at 1128. The court also noted its
emphatic agreement with both the Magistrate and Spain,
which states at page twenty-one of the response . . . that:
Odyssey’s rehash of “commercial activity”
arguments conspicuously fails to acknowledge that
the exception expressly applies only to “property
used for a commercial activity in the United States,”
if it “is or was used for the commercial activity
upon which the claim is based.” 28 U.S.C. §§
1610(a), 1610(a)(2). Moreover, the FSIA defines
“commercial activity in the United States” as
“commercial activity carried on by such state and
having substantial contact with the United States.”
23 U.S.C. § 1603(e). It is undisputed that the
Mercedes had nothing to do with the United States:
“the res lacks any nexus to our nation’s sovereign
boundaries.” [citation omitted]
....
To defeat a showing of sovereign ownership
and invocation of the FSIA, the claimant must show
its claims are based on commercial activity by the
vessel in the United States and/or a waiver of
sovereign immunity. Odyssey has done neither.

Id. at 1128–29.
Odyssey, the Republic of Peru, and the individual claimants appealed
the dismissal to the U.S. Court of Appeals for the Eleventh Circuit.

Excerpts follow from the magistrate judge’s conclusions that the
shipwreck, cargo, and related items, as Spanish property, are immune under
§ 1609 of the FSIA (footnotes and citations to submissions in the case
omitted). Chapter 12.A.9.a. addresses other aspects of the magistrate
judge’s report and recommendation and the U.S. amicus curiae brief in
support of Spain.
___________________
*
*
*
. . . Section 1609 of the FSIA states in pertinent part:

*

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.
Unquestionably, the Mercedes is the property of Spain—constructed in 1788 by Navy Engineers in
the shipyard of the Spanish Navy in Havana, Cuba; commanded by officers and crewed by sailors
of the Royal Spanish Navy throughout its service; and designated as a Spanish frigate of war. It
remains on the Royal Navy’s official registry of ships. As such, [§] 1609’s plain reading limits
Odyssey to arguing the Court has jurisdiction under “existing international agreements” or as
permitted by [§§] 1610 and 1611. None of these exceptions apply here, as Spain urges and
Odyssey’s silence concedes. Instead, Odyssey sidesteps § 1609’s exceptions by claiming: § 1609
does not shield property outside the United States; Spain must actually “possess” the res; the cargo
should be partitioned to satisfy the descendants’ claims to the private lots; and other provisions of
the FSIA deny Spain sovereign immunity from in personam claims. These contentions are without
merit as all evade the FSIA’s goals, its statutory scheme, and the special status accorded warships
per the various treaties and agreements § 1609 necessarily incorporates.
*

*

*

*

2. Discovery Orders: Rubin v. Islamic Republic of Iran
The U.S. brief in Rubin, discussed in A.1.c.(2) supra, also supported reversal
of the district court’s 2008 ruling finding Iran subject to discovery. The
court held that when a foreign state appears in a U.S. court to assert the
immunity of specific property, as Iran did in this case, it “voluntarily”
subjects itself to the obligations imposed on private litigants, including the
obligation to identify all assets in which it has an interest, regardless of the
location of those assets in the United States. Rubin v. Islamic Republic of
Iran, 2008 WL 2502039 (N.D. Ill. June 23, 2008). Excerpts below from the
U.S. brief elaborate on the government’s argument that the court’s order
permitting broad discovery to identify Iran’s assets in the United States was
erroneous. The full text of the U.S. brief is available at
www.state.gov/s/l/c8183.htm.

___________________
*
*
*
*
The order allowing general assets discovery rested on the flawed “affirmative defense” ruling and
may be vacated on that basis. The district court directed a foreign state to choose between forfeiting
the immunity of its property or appearing and subjecting itself to discovery. That approach found no
support in the FSIA, which makes the property of a foreign state presumptively immune from
execution and requires a judgment creditor to establish that specific property falls within an
exception to immunity.
The district court compounded its error by treating Iran’s limited appearance, which was
made in response to the “affirmative defense” ruling for the limited purpose of asserting the
immunity of the artifacts collections, as a basis for general discovery of “every conceivable asset of
Iran’s in the United States.” . . . As other courts of appeals have recognized, discovery against a
foreign sovereign “should be ordered ‘circumspectly and only to verify allegations of specific facts
crucial to the immunity determination.’” Af-Cap Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d
1080, 1096 (9th Cir. 2007) (quoting Connecticut Bank of Commerce v. Republic of Congo, 309 F.3d
240, 260 n.10 (5th Cir. 2002)) (emphasis omitted). That approach is consistent with accepted
international practice, which allows the United States to appear in foreign courts for specific,
limited purposes—such as to assert the immunity of specific assets from attachment or the
immunity of specific officials for specific conduct—without exposing itself to general discovery.
By contrast, the district court’s discovery order exceeds the bounds of accepted international
practice, discourages foreign sovereigns from appearing in U.S. courts, and encourages foreign
courts to allow similar discovery against the United States.
*

*

*

*

3. Foreign Officials
In 2009 two federal appellate courts considered whether former foreign
officials are immune from jurisdiction under the FSIA or under a
longstanding non-statutory immunity that the FSIA did not replace. In
Yousuf v. Samantar, 552 F.3d 371, 381 (4th Cir. 2009), the U.S. Court of
Appeals for the Fourth Circuit held that the FSIA does not apply to individual
foreign government officials and therefore the defendant, a former Somali
Prime Minister and Defense Minister, was not immune from suit under the
FSIA. The court remanded the case to the district court for an examination
of whether Samantar might enjoy immunity on any other basis. In Matar v.
Dichter, 563 F.3d 9, 13 (2d Cir. 2009), the U.S. Court of Appeals for the
Second Circuit held that the defendant, the former head of the Israeli
Security Agency, was immune from civil jurisdiction under common law,
without deciding whether he might also be immune under the FSIA. The
court held that “whether the FSIA applies to former officials or not, they
continue to enjoy immunity under common law.” For prior developments in
the case, see Digest 2006 at 465–76 and Digest 2007 at 224–26 and 504–8.

On May 29, 2009, in an amicus curiae brief filed at the invitation of
the Supreme Court in a third case, the United States expressed its view that
foreign officials derive their immunity from “non-statutory principles
articulated by the Executive, not the FSIA.” Federal Insurance Co. v.
Kingdom of Saudi Arabia, Case No. 08-640. The United States provided
those views in opposing a petition for certiorari in a case seeking to hold
several high-ranking Saudi officials and Saudi Arabia liable for the
September 11, 2001 terrorist attacks. The United States argued that the
lower courts correctly dismissed claims against the officials based on their
immunity for governmental acts outside the United States but noted its
disagreement with the conclusion of the court of appeals that the FSIA
provided the basis for that immunity. Nonetheless, because the court of
appeals correctly upheld the defendants’ immunity, the U.S. brief stated that
the government’s disagreement with the court of appeals’ analysis “on the
proper legal basis for the individual defendants’ official immunity . . . does
not warrant this Court’s review.”
The Court denied certiorari on June 29, 2009, in Federal Insurance
Co. v. Kingdom of Saudi Arabia, 129 S. Ct. 2859 (2009), but granted
certiorari on September 30, 2009, in Samantar v. Yousuf, 130 S. Ct. 1499
(2009). The Court’s review of whether the FSIA applies only to states or both
to states and foreign government officials for actions taken in their official
capacity remained pending at the end of 2009.*
The excerpts below from the government’s brief in Federal Insurance
Co. v. Kingdom of Saudi Arabia summarize the government’s argument in
opposing the petition for certiorari. (Citations to other submissions in the
case are omitted.) The government’s brief is available in full at
www.justice.gov/osg/briefs/2008/2pet/6invit/2008-0640.pet.ami.inv.html.
___________________
*
*
*
*
a. The text, structure, and history of the FSIA demonstrate that it was not intended to address the
immunity of foreign officials. Section 1603(a) provides that the phrase “foreign state” includes an
“agency or instrumentality.” 28 U.S.C. 1603(a). Congress’s use of the terms “agency” and
“instrumentality” rather than “agent” suggests they were not intended to encompass natural persons.
That conclusion is reinforced by Subsection (b)’s definition of “agency or instrumentality” as an
“entity” that “is a separate legal person, corporate or otherwise,” which indicates an exclusive
concern with non-natural “entit[ies].” 28 U.S.C. 1603(b).
Other features of the FSIA confirm that understanding. For example, the statute makes “the
property of an agency or instrumentality of” a designated terrorist state subject to execution to
satisfy a terrorism-related judgment against the state itself. See 28 U.S.C. 1610(g)(1). It is difficult
*

Editor’s note: On June 1, 2010, the Supreme Court affirmed the lower court’s judgment, holding
that the FSIA did not govern Samantar’s claim, and remanded the case to the district court to
consider whether Samantar might be entitled to immunity under common law or whether he might
assert other defenses. Samantar v. Yousuf, 130 S. Ct. 2278 (2010). Digest 2010 will discuss relevant
aspects of the opinion.

to believe that Congress intended, as would follow from the court of appeals’ ruling, that the
personal property of every official or employee of a state sponsor of terrorism would be available
for execution to satisfy a terrorism-related judgment against the state. Similarly, the FSIA’s focus
on the status of an entity as an agency or instrumentality at the time suit was filed, see Dole Food
Co. v. Patrickson, 538 U.S. 468, 478 (2003), would mean, if applied in the same fashion to the
immunity of officials, that a plaintiff could circumvent that immunity by waiting until an official
left office. Congress is unlikely to have conferred a time-limited immunity of this nature.
The FSIA’s legislative history further demonstrates that Congress did not intend to supplant
existing principles regarding the immunity of foreign officials. In clarifying that the FSIA would not
affect diplomatic or consular immunity, notwithstanding the tort exception’s reference to torts
committed by foreign officials acting within the scope of their authority, the House report explained
that the statute would “deal[] only with the immunity of foreign states.” H.R. Rep. No. 1487, 94th
Cong., 2d Sess. 21 (1976) (House Report). Further, the report noted that with regard to discovery,
“official immunity,” of a kind existing separate from and outside of the FSIA, would apply if a
litigant sought to depose a “high-ranking official of a foreign government.” Id. at 23.
b. As petitioners note, the courts of appeals disagree over whether the FSIA governs the
immunity of foreign officials. Compare Belhas v. Ya’alon, 515 F.3d 1279, 1284–1288 (D.C. Cir.
2008), Keller v. Central Bank of Nigeria, 277 F.3d 811 (6th Cir. 2002), Byrd v. Corporacion
Forestal y Industrial de Olancho, 182 F.3d 380 (5th Cir. 1999), and Chuidian v. Philippine Nat’l
Bank, 912 F.2d 1095, 1101 (9th Cir. 1990), with Yousef v. Samantar, 552 F.3d 371, 381 (4th Cir.
2009) (holding FSIA inapplicable, remanding for consideration of other sources of immunity), and
Enahoro v. Abubakar, 408 F.3d 877, 882 (7th Cir. 2005), cert. denied, 546 U.S. 1175 (2006). But
that disagreement appears to be of little practical consequence, and is of no consequence where, as
here, respondents would be immune from suit under both the FSIA and principles articulated by the
Executive.
Notably, the Ninth Circuit, the first of the courts of appeals to adopt the FSIA as the
framework for analyzing foreign official immunity, did so in order to protect foreign officials from
suit and to prevent the FSIA from “be[ing] vitiated if litigants could avoid immunity simply by
recasting the form of their pleadings” to name individual foreign officials as defendants. Chuidian,
912 F.2d at 1102. Where, as in Chuidian and this case, the lower courts apply the FSIA to provide
immunity and the Executive also would recognize such immunity, the different approaches produce
the same result, and the divergence in rationales becomes irrelevant. . . .
Questions have emerged in two contexts in which the FSIA might provide a less expansive
immunity than the principles recognized by the Executive, but whether there is any genuine
divergence is still unclear. First, as noted above, application of the FSIA framework raises the
problematic prospect that, under Dole Food, foreign officials could lose immunity upon leaving
office. See Yousef, 552 F.3d at 383 (holding that FSIA does not protect former officials, but
remanding for consideration of non-FSIA immunity). But that potential anomaly so far has not led
to untoward results. . . .
A second situation of possible divergence has arisen when foreign officials are sued
individually for official acts falling within the FSIA’s commercial activities exception. Two
appellate decisions have upheld jurisdiction over foreign government officials in this circumstance,
raising the possibility that the FSIA approach to official immunity would have a narrower scope
than that based on principles recognized by the Executive Branch. See Byrd, 182 F.3d at 382, 384–
385, 389–391 (alleged conspiracy by state-owned corporation to take control of sawmill); Keller,
277 F.3d at 816–817 (alleged conspiracy of officials at state bank to defraud plaintiff). But, in fact,

principles recognized by the Executive also might have allowed those two suits to go forward. In
neither case did the Executive recommend immunity, nor did the courts consider non-statutory
immunity. Recently, moreover, the Executive has indicated that “it is not clear whether (and if so, to
what extent) [non-statutory] immunity applies to corporate officers of a state owned commercial
enterprise.” Kensington Int’l Ltd. v. Itoua, 505 F.3d 147 (2d Cir. 2007) (No. 06-1763). That issue is
not, in any event, presented here, where the challenged activity is not commercial in nature.
*

*

*

*

B. DIPLOMATIC AND CONSULAR PRIVILEGES AND IMMUNITIES
1. Same-sex Partners
On November 4, 2009, the Department of State circulated a diplomatic note
to Chiefs of Mission of diplomatic missions in the United States, which
advised that, “in addition to the categories of individuals previously
accepted as family members, the Department has determined that the
definition of ‘family’ forming part of the household of a diplomatic agent
may include same-sex domestic partners (‘domestic partners’) for purposes
of the application of the Vienna Convention on Diplomatic Relations and
Vienna Convention on Consular Relations in the United States.” This
announced change in policy means that the Department accepts the
accreditation of same-sex domestic partners of foreign diplomatic or
consular personnel assigned to official duty in the United States, who
became eligible for diplomatic visas as a result of a July 22, 2009 change in
the Department’s visa regulations. See 74 Fed. Reg. 36,112 (July 22, 2009)
for the final rule. Accredited same-sex domestic partners enjoy the same
privileges and immunities of other accredited family members who are
recognized by the Department as forming part of a diplomat’s household.
The diplomatic note, which is provided below, is also available at
www.state.gov/s/l/c8183.htm.
___________________
The Secretary of State presents her compliments to Their Excellencies and Messieurs and
Mesdames the Chiefs of Mission and refers to the notes dated November 3, 1988, February 2, 1987,
and May 22, 1986, concerning the definition of family members.
As indicated in the referenced May 22, 1986, note, it has long been an accepted principle of
international law that the privileges and immunities to which members of the mission are entitled
extend, to a certain degree, to the members of their families forming part of their households. The
Vienna Convention on Diplomatic Relations (Article 37(1)) specifies the privileges and immunities
which shall be accorded such “members of the family of a diplomatic agent forming part of [the]
household” but does not provide a definition of the term “members of the family” for the purposes
of the Convention. The drafters of the Convention recognized that the concept of “family” differs

among the societies of the world and left the matter to be resolved according to the standards of the
respective receiving States.
The Chiefs of Mission are informed that, in addition to the categories of individuals
previously accepted as family members, the Department has determined that the definition of
“family” forming part of the household of a diplomatic agent may include same-sex domestic
partners (“domestic partners”) for purposes of the application of the Vienna Convention on
Diplomatic Relations and Vienna Convention on Consular Relations in the United States. In
accordance with guidance from the White House, the Department is not in a position to accept the
accreditation of opposite-sex domestic partners as members of the family.
In order to be eligible for acceptance as a domestic partner of a member of a diplomatic or
consular mission, a domestic partner must not be a member of some other household, must reside
regularly in the household of the principal, and must be recognized by the sending State as a family
member forming part of the household of the principal, as demonstrated by eligibility for rights and
benefits from the sending State. Therefore, when notifying the Department of domestic partners of
its mission members, the sending State is requested to submit appropriate documentation that it
recognizes the domestic partner relationship, which could include evidence that the sending State
provided the domestic partner with a diplomatic or an official passport or other documentation
based on that status, or with travel or other allowances. Domestic partners of employees of a
diplomatic or consular mission (and of miscellaneous foreign government offices) accepted by the
Department will be eligible for “A” or “G” visas. The new visa regulation is enclosed.
In addition, the Department intends to pursue the legal measures necessary to enable the
United States to offer dependent employment to domestic partners, on a reciprocal basis, in the
context of bilateral dependent employment agreements or arrangements. The Chiefs of Mission will
be advised of any such developments as soon as it is possible to do so.
The attention of the Chiefs of Mission is also drawn to applicable provisions of international
law in respect of the termination of status. As stated in previous circular notes, whenever any person
who has been accorded status as a member of the family in the United States (other than a student
attending boarding school or college) ceases to reside with the principal, such person immediately
ceases to be a member of the family within the meaning of the Vienna Convention on Diplomatic
Relations and the Vienna Convention on Consular Relations. Accordingly, all privileges and
immunities, if any, to which such person previously had been entitled in the United States would
terminate thirty days thereafter unless in a particular case a shorter time has been specified by the
Department of State.
The Chiefs of Mission are advised that until the Department of State publications and
circular notes are revised explicitly to incorporate “domestic partners” as members of the family of
a diplomatic or consular agent forming part of the household, references to family members in the
context of privileges and immunities and related matters other than dependent employment should
be understood to include domestic partners as described herein.
It is emphasized that the standard set forth in this note is to define members of the family for
the purposes of the Vienna Convention on Diplomatic Relations and the Vienna Convention on
Consular Relations and is without prejudice to other definitions of family for other purposes which
have an independent basis in international agreements or U.S. domestic law.

2. Immunity of Diplomats from Civil Jurisdiction
In 2009 federal district courts in New York and Washington, D.C., issued
decisions in cases that domestic workers brought against both serving and
former foreign diplomats who employed them while on diplomatic
assignments in the United States. The plaintiffs’ claims alleged human
trafficking, involuntary servitude, and slavery, and the defendants asserted
they enjoyed immunity from jurisdiction under international law, including
the Vienna Convention on Diplomatic Relations (“Vienna Convention” or
“VCDR”). The first case, discussed below in B.2.a., addressed the question of
whether a diplomat’s employment of a domestic worker is a commercial
activity for which, under Article 31(1)(c) of the Vienna Convention, the
diplomat enjoys no immunity. Article 31(1)(c) provides an exception to
diplomatic immunity for “an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving State
outside his official function.” The United States understands the Vienna
Convention to provide immunity to a diplomat for all matters incidental to
daily life, including the employment of a servant, but not for the conduct of
a business or for outside employment, for which there is no immunity. In
the second two cases, discussed below in B.2.b., the courts considered
whether Article 39(2) of the Vienna Convention provides residual immunity
to a former diplomat for actions relating to employment of a domestic
worker during the diplomatic assignment. Under Article 39(2), former
diplomats enjoy ongoing immunity “with respect to acts performed . . . in
the exercise of [their] functions as a member of the mission.” For discussion
of a diplomatic note the Department of State circulated to diplomatic
missions in the United States in 2009 concerning domestic workers, see
C.4. of this chapter.

a. Immunity of a serving diplomat for acts incidental to daily life
On March 20, 2009, the U.S. District Court for the District of Columbia held
that a serving diplomat and his spouse were immune from claims filed by
their former domestic servant and granted the defendants’ motion to
dismiss. The court also quashed service of process against the defendants.
Sabbithi v. Al Saleh, 605 F. Supp. 2d 122 (D.D.C. 2009). In reaching its
conclusion, the court relied on the Department of State’s certification of the
diplomatic status of the defendants, which provided them broad immunity
from civil jurisdiction. Consistent with the Statement of Interest the United
States filed on July 22, 2008, at the court’s request, the court concluded
that employment of a domestic servant did not fall within the commercial
activity exception to immunity contained in Article 31(1)(c) of the Vienna
Convention. Instead, the court concluded that “hiring domestic employees is
an activity incidental to the daily life of a diplomat and his or her family, and

does not constitute commercial activity outside a diplomat’s official
function.” Id. at 128–29.
In this case, the diplomat had left his post in Washington, D.C., and
returned to Kuwait in 2007. The plaintiff thus argued that the defendants
had no residual immunity for their alleged actions. The U.S. Statement of
Interest noted that the question about immunity in the case related only to
whether the defendants had immunity from suit when they were sued and
served with notice of the suit. At that time, the defendants were serving
diplomats in Washington. The United States explained that the fact that the
defendants had left the United States in 2007
has no bearing on the central issue now before the
Court—namely, whether Defendants were immune from
service of process when it was attempted in January
2007. If they were, the attempted service was a nullity,
and the Court lacks personal jurisdiction over them. . . .
Given that the record does not indicate that service has
been effected at a time when Defendants were not
immune from service of process, the United States does
not at this time address the separate question whether
Defendants enjoy “residual immunity” under Article 39(2)
of the Vienna Convention. . . .
The U.S. Statement of Interest is available at www.state.gov/s/l/c8183.htm.

b. Residual immunity
(1) Swarna v. Al-Awadi
On March 20, 2009, the U.S. District Court for the Southern District of New
York held that it had jurisdiction over a former Kuwaiti diplomat to the
United Nations and his wife in a case their former domestic worker brought
against them under the Alien Tort Claims Act and New York state law. The
court entered a default judgment against the individual defendants. Swarna
v. Al-Awadi, 607 F. Supp. 2d 509 (S.D.N.Y. 2009). Plaintiff alleged that the
individual defendants subjected her to slavery and slavery-like practices,
including involuntary servitude, torture, and abuse (including physical
assault and rape), and failed to pay her minimum wages required by New
York state law. Plaintiff also sought to hold the State of Kuwait vicariously
liable for the individual defendants’ alleged actions, and the court dismissed
those claims on sovereign immunity grounds.
The individual defendants, who were serving in Kuwait’s mission in
France when they were served at their Parisian residence, did not answer the
complaint but filed a Notice of Appearance asserting immunity from civil
jurisdiction under the Vienna Convention. Kuwait asserted immunity under

the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330, 1602–
1611. The United States declined the court’s invitation, dated December 17,
2008, to address the issue of residual immunity and the exceptions to
immunity that might apply to the case.
In assessing the plaintiff’s claims against the individual defendants,
the court considered the question of residual immunity and its scope. The
court determined that the Kuwaiti diplomat did not commit the alleged acts
in the exercise of his diplomatic functions. While employing an individual to
work at a diplomatic mission may be an official act, the court held that the
act of hiring and employing a domestic servant is a private act that is
peripheral to an official’s diplomatic duties. The court observed that the
diplomat did not need to employ the servant to represent Kuwait or protect
its interests, did not employ her in the course of implementing official
policy, and did not supervise her at the Kuwaiti mission. The court also
concluded that the diplomat’s wife had no residual immunity, noting that it
was not clear that she performed any functions that could be considered
official and that she had no greater entitlement to immunity than her
husband.
With regard to the claims against the State of Kuwait, the court
analyzed the FSIA’s commercial activities and tort exceptions to immunity.
The court concluded that plaintiff had failed to show that Kuwait had
engaged in any commercial activity, given that individuals and not the state
had employed the plaintiff. The court also concluded that the tort exception
did not apply because the diplomat did not act within the scope of his
employment under New York law and the acts alleged to support the claim
that Kuwait ratified, aided, or abetted the diplomat’s abuse of plaintiff were
discretionary acts.
The individual defendants’ appeal of the district court’s default
judgment and the plaintiff’s cross appeal of the district court’s decision
holding that Kuwait was immune from suit were pending before the U.S.
Court of Appeals for the Second Circuit at the end of 2009.

(2) Baoanan v. Baja
On June 16, 2009, the U.S. District Court for the Southern District of New
York determined that the former Philippine Ambassador to the United
Nations and his wife were not immune from its jurisdiction with regard to
their former domestic servant’s claims of abuse. Baoanan v. Baja, 627 F.
Supp. 2d 155 (S.D.N.Y. 2009). In this case, the plaintiff brought claims that
included forced labor trafficking, involuntary servitude, and violations of the
federal and state minimum wage laws and served the defendants with the
complaint in the Philippines on July 8, 2008. Ambassador Baja served as the
Permanent Representative of the Philippines to the United Nations from May
11, 2003, to February 21, 2007. Following Swarna v. Al-Awadi, 607 F. Supp.

2d 509 (S.D.N.Y. 2009) (“Swarna”), discussed in B.2.b.(1) supra, the court
held that the former diplomat and his wife did not have residential
diplomatic immunity under Article 39(2) of the Vienna Convention and
denied the defendants’ motion to dismiss and to quash the service of
process against them.
The court’s conclusion also relied in large part on the U.S. Statement
of Interest filed on April 28, 2009. Baonoan v. Baja, 08 Civ. 5692 (VM)
(S.D.N.Y. 2009). The United States endorsed the approach taken in Swarna,
noting that the court had “correctly approached” the question of the scope
of residual immunity by finding that it “pertains to acts taken in the regular
course of implementing an official program or policy of the mission, . . . as
well as the hiring and employment of an individual to work at a diplomatic
mission.” The government stated:
The Swarna court also noted that “residual diplomatic
immunity does not extend to lawsuits based on actions
that were entirely peripheral to the diplomatic agent’s
official duties” . . . . Ultimately, the Swarna court
determined that the acts alleged by a former domestic
servant in her complaint against former Kuwaiti
diplomats were not official but private acts and thus that
the former diplomats were not shielded by the residual
immunity set forth in Article 39(2). [citation omitted]
While the Government takes no position in this case as to
whether Ambassador Baja enjoys residual immunity, the
Government agrees with the analytical approach of the
Swarna court, which came to its determination by
considering, “whether the acts allegedly committed by
[defendant] against plaintiff were performed in the
exercise of his diplomatic functions.” . . .
Excerpts below from the U.S. Statement of Interest set forth the
government’s views on the scope of residual immunity and on the
relationship between the “commercial activity” exception to the immunity of
serving diplomats set forth in Article 31(1)(c) and the residual immunity
enjoyed by former diplomats, as set forth in Article 39(2). The full text of
the U.S. Statement of Interest is available at www.state.gov/s/l/c8183.htm.
___________________
*
*
*
*
I. SCOPE OF RESIDUAL IMMUNITY
A. The Residual Immunity Enjoyed by Former Diplomats Is Limited to Immunity for Acts
Performed in the Exercise of Official Functions as a Mission Member
The privileges and immunities accorded diplomatic agents are set forth in the VCDR. Under
the VCDR, during the period of their accreditation, diplomatic agents enjoy near absolute immunity
from civil jurisdiction. See VCDR, Article 31. The purpose of such diplomatic immunity “is not to

benefit individuals but to ensure the efficient performance of the functions of diplomatic missions
as representing States.” Id., preamble, cl. 4; see also Swarna v. Al-Awadi, 06 Civ. 4880 (PKC), 2009
WL 773446, at *6 (March 20, 2009 S.D.N.Y.); U.S. v. Cole, 717 F. Supp. 309 (E.D.Pa. 1989) (“The
theoretical basis for diplomatic immunity is generally agreed to be ‘functional necessity.’”). The
Department of State has further elaborated that, “foreign representatives may carry out their duties
effectively only if they are accorded a certain degree of insulation from the application of the laws
of the host country. Thus, these representatives need protection while they are serving in their
positions so that they may fully carry out their functions, without fear of interference or harassment
by the receiving state.” Declaration of Abraham D. Sofaer, dated July 5, 1988 (“Sofaer Decl.”), ¶ 6,
submitted in United States v. Guinand, 688 F. Supp. 774 (D.D.C. 1988), declaration excerpted in
Cumulative Digest of United States Practice in International Law, 1981–1988, Book I (1993) at
1010–1013. [fn. omitted]
Once an individual ceases to be a diplomatic agent in a receiving state, however, the scope
of that individual’s immunity is then limited to that set forth in Article 39 (2):
When the functions of a person enjoying privileges and immunities have come to an
end, such privileges and immunities shall normally cease at the moment when he
leaves the country, or on expiry of a reasonable period in which to do so, but shall
subsist until that time, even in case of armed conflict. However, with respect to acts
performed by such a person in the exercise of his functions as a member of the
mission, immunity shall continue to subsist.
VCDR, Article 39(2) (emphasis added). In other words, a former diplomat has continuing or
residual immunity only for “acts performed . . . in the exercise of his functions as a member of the
mission,” i.e., for his official acts.4 VCDR, Article 39(2); see also Swarna, 2009 WL 773446, at *5,
Brzak v. United Nations, 551 F. Supp.2d 313, 317 (S.D.N.Y. 2008); De Luca v. United Nations
Organization, 841 F. Supp. 531, 534 (S.D.N.Y. 1994). Residual immunity is limited to official acts
performed by a diplomat as part of his job because, as explained by a leading diplomatic law expert,
such acts “are in law the acts of the sending State. It has therefore always been the case that the
diplomat cannot be sued in respect of such acts since this would be indirectly to implead the sending
State.” Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic
Relations 439 (3d ed. 2008). [fn. omitted] The need for the more expansive immunity enjoyed by
accredited diplomats “terminates when the individual ceases to be a diplomatic agent.” Swarna,
2009 WL 773446, at *6; see also Sofaer Decl., ¶ 6 (explaining that former diplomats “are no longer
exercising important functions which must be protected in order to maintain the orderly conduct of
foreign relations between their state and the receiving state”). Thus:
[t]he United States Government has consistently interpreted Article 39 of the VCDR
to permit the exercise of U.S. jurisdiction over persons whose status as members of
the diplomatic mission has been terminated for acts they committed during the
period in which they enjoyed privileges and immunities, except for acts performed in
the exercise of the functions as a member of the mission. (Article 3 of the VCDR
4

In this brief, the Government uses the term “official acts” to refer only to the scope of residual
immunity provided by Article 39(2) of the VCDR. The Government takes no position on the scope
of the term “official acts” as used elsewhere in the VCDR.

lists the permissible functions of a diplomatic mission.) The Department of State has
publicly communicated this interpretation to U.S. law enforcement authorities, to
Congress, and to members of foreign diplomatic missions in the United States.
Sofaer Decl., ¶ 5.
The Department of State issued such a communication to the chiefs of all diplomatic
missions in the United States in a Circular Note, which stated, “[t]he Department wishes to remind
the missions that in any case involving criminal activity no immunity exists against the arrest and
prosecution of a person formerly entitled to privileges and immunities who returns to the United
States following the termination of his or her official duties, unless it can be proved that the crime
related to the exercise of official functions.” Circular Note, November 15, 1989, published at 2
Foreign Affairs Manual Exhibit 233.4 (emphasis added), available at
http://www.state.gov/documents/organization/84395.pdf. Although this communication was focused
on criminal immunity, the limited immunity of former diplomats described in Article 39(2) applies
equally to both criminal and civil liability. Swarna, 2009 WL 773446, at *9. Furthermore, “[t]he
United States Government’s interpretation of the termination of immunity under the VCDR is . . .
consistent with the practice of the other sovereign states, including [those] which are party to the
Vienna Convention.” Sofaer Decl., ¶ 8.
B. The Court Should Consider Whether Ambassador Baja’s and/or His Wife’s Employment
of Plaintiff Was an Official Act to Determine Whether He and/or She Enjoy Residual
Immunity From This Suit.
In this case, because Ambassador Baja was served in this action more than a year after he
left his position as Permanent Representative to the United Nations, Ambassador Baja enjoys
residual immunity only for his official acts carried out as a member of the Philippine Mission to the
United Nations under Article 39 (2) of the VCDR.6 During the period when Mrs. Baja was
accredited by the Government of the Philippines to the United Nations as the Ambassador’s spouse,
she enjoyed the same broad privileges and immunities as Ambassador Baja. See VCDR, Article
37(1). However, Mrs. Baja was also served in this action long after Ambassador Baja left his post at
the United Nations. As she was never a member of the Philippine Mission to the United Nations,
she could not have conducted any acts under Article 39(2) “as a member of the mission,” and her
immunity does not continue to subsist for any acts. Thus, Mrs. Baja enjoys no residual immunity
and is subject to the civil jurisdiction of the United States. See VCDR, Article 37(1), 39(2). Cf.
Swarna, 2009 WL 773446, at *10–11.
The question remaining before the Court is thus whether Ambassador Baja’s employment of
plaintiff was an act carried out in the exercise of his official functions as a member of the Philippine
Mission. It is clear that such acts are limited to those, “performed on behalf of or imputable to the
sending State.” Denza at 441. The more difficult question is what constitutes such an act. A similar
6

The privileges and immunities set forth in the VCDR are enjoyed by Ambassador Baja and his
wife by virtue of the Agreement Between the United Nations and the United States Regarding the
Headquarters of the United Nations (“UN Headquarters Agreement”), which provides that certain
resident representatives to the United Nations are entitled to the same privileges and immunities in
the United States as the United States accords to diplomatic envoys accredited to it. See UN
Headquarters Agreement, Article V, § 15, 12 Bevans 956, T.I.A.S. 1676; Ahmed v. Hoque, No. 01
Civ. 7224 (DLC), 2002 WL 1964806, at *5 (S.D.N.Y Aug. 23, 2002).

question arises in the consular context, as consular officers and employees are not subject to
criminal or civil jurisdiction “in respect of acts performed in the exercise of consular functions.”
Vienna Convention on Consular Relations, Article 43(1), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S.
261 (“VCCR”). See Ford v. Clement, 834 F. Supp. 72, 75 (S.D.N.Y. 1993) (“[A] consular officer . .
. must . . . plead and prove immunity on the ground that the act or omission underlying the process
was in the performance of his official functions,” quoting Koeppel & Koeppel v. Federal Republic
of Nigeria, 704 F. Supp. 521, 522 (S.D.N.Y. 1989)). In evaluating whether a specific act was
“performed in the exercise of consular functions,” rendering a consular officer or employee immune
from jurisdiction, courts have looked to Article 5 of the VCCR, which describes activities that
comprise consular functions. See, e.g., Park v. Shin, 313 F.3d 1138 (9th Cir. 2002); Gerritsen v.
Consulado General de Mexico, 989 F.2d 340 (9th Cir. 1993); Ford, 834 F. Supp. at 75 (S.D.N.Y.
1993); Cole, 717 F. Supp. at 323.
It would be reasonable for courts to look to the analogous article of the VCDR, Article 3,
which provides a list of the “functions of a diplomatic mission,” to inform an analysis of whether an
act was performed in the exercise of a former diplomat’s “functions as a member of the mission.”
Article 3 defines these as, inter alia,
(a)
(b)
(c)
(d)
(e)

Representing the sending State in the receiving State;
Protecting in the receiving State the interests of the sending State and of its
nationals, within the limits permitted by international law;
Negotiating with the Government of the receiving State;
Ascertaining by all lawful means conditions and developments in the
receiving State, and reporting thereon to the Government of the sending
State;
Promoting friendly relations between the sending State and the receiving
State, and developing their economic, cultural and scientific relations;

In the recent opinion in the Swarna case, the court correctly approached this question by
conducting a careful analysis of the VCDR, including Article 3, and the existing case law in an
attempt to discern the contours of residual diplomatic immunity. The Swarna court concluded that
residual immunity pertains to acts taken in the regular course of implementing an official program
or policy of the mission, see Swarna, 2009 WL 773446, at *6 (citing De Luca, 841 F. Supp. at 534–
35), as well as the hiring and employment of an individual to work at a diplomatic mission, see id.
at *7 (citing Brzak, 551 F. Supp. 2d at 319; Osman v. Annan, 07-837-CV-W (NKL), 2008 WL
2477535, at *1–2 (W.D. Mo. June 16, 2008); D’Cruz v. Annan, 05 Civ. 8918 (DC), 2005 WL
3527153, at *1 (S.D.N.Y. Dec. 22, 2005)).
The Swarna court also noted that “residual diplomatic immunity does not extend to lawsuits
based on actions that were entirely peripheral to the diplomatic agent’s official duties,” such as, for
example, the criminal distribution of narcotics, see Swarna, 2009 WL 773446, at *7 (citing U.S. v.
Guinard, 688 F. Supp. 774, 774 (D.D.C. 1988)), and observed that the one case that “arguably holds
to the contrary” did not independently analyze whether residual diplomatic immunity applied to
defendant’s acts because plaintiff had already conceded that defendant had been acting in his
official capacity. See Swarna, 2009 WL 773446, at *8 (discussing Knab v. Republic of Georgia, 97
Civ. 3118 (TFH), 1998 WL 34067108 (D.D.C. May 29, 1998).) Ultimately, the Swarna court
determined that the acts alleged by a former domestic servant in her complaint against former
Kuwaiti diplomats were not official but private acts and thus that the former diplomats were not

shielded by the residual immunity set forth in Article 39(2). See Swarna, 2009 WL 773446, at *9,
10. While the Government takes no position in this case as to whether Ambassador Baja enjoys
residual immunity, the Government agrees with the analytical approach of the Swarna court, which
came to its determination by considering, “whether the acts allegedly committed by [defendant]
against plaintiff were performed in the exercise of his diplomatic functions.” Id. at *5.
II. RELATIONSHIP BETWEEN THE “COMMERCIAL ACTIVITY” EXCEPTION AND
OFFICIAL ACTS IN THE VCDR
A. Residual Official Acts Immunity Under Article 39(2) of the VCDR Requires a Separate
Analysis from the Commercial Activity Exception Under Article 31(1)(c) of the VCDR
In the Government’s view, the question currently before the Court is whether the former
Ambassador and his wife enjoy residual diplomatic immunity under Article 39(2) for the acts
alleged by plaintiff. Accordingly, there is no need for the Court to address whether the plaintiff’s
claims fall within the “commercial activity” exception of Article 31(1)(c) of the VCDR, which is
applicable only to diplomatic agents during the period of their assignment and accreditation.
As noted above, the VCDR provides accredited diplomatic agents, as well as members of
their families forming part of their households, near absolute immunity from civil jurisdiction. See
VCDR, Articles 31, 37. Article 31 provides three limited exceptions to this immunity, including an
exception for “an action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official function.” VCDR, Article 31(1)(c). The
scope of this exception has been ruled on in three cases outside this district, all of which were
brought against diplomats by their former domestic servants; in all of these cases the courts agreed
with the United States’ position that the “commercial activities exception” to Article 31(1)(c) does
not apply to the employment of a domestic worker. See Sabbithi v. Al Saleh, No. 07-CV-00115EGS, 2009 WL 737006, at *4–5 (D.D.C. Mar. 20, 2009); Gonzalez Paredes v. Vila, 479 F. Supp. 2d
187, 193 (D.D.C. 2007); Tabion v. Mufti, 877 F. Supp. 285, 291–292 (E.D.Va. 1995), aff’d, 73 F.3d
535 (4th Cir. 1996). An analysis of the application of Article 31(1)(c)’s commercial exception with
respect to accredited diplomatic agents, however, is independent from the analysis applicable here,
regarding the residual immunity of Ambassador Baja under Article 39(2). While Article 31(1)(c)
provides an exception to diplomatic immunity for commercial activity conducted “outside [a
diplomat’s] official function,” it does not follow that those acts of an accredited diplomat that do not
fall within the commercial activity exception are “official acts” for the purposes of residual
immunity under Article 39(2). In fact, there is a broad scope of conduct that is neither commercial
nor official, for which former diplomats do not enjoy immunity.
*
*
*
*
. . . [T]he immunity of current diplomatic agents is extensive, consistent with the purpose of
such immunity “to ensure the efficient performance of the functions of diplomatic missions.”
VCDR, preamble, cl. 4. The exception to such immunity for commercial or professional activities
set forth in Article 31(1), when examined in this context, should be interpreted narrowly. See
VCDR, Article 31(1); see also Sabbithi, 2009 WL 737006, at *4, Gonzalez Paredes, 479 F. Supp.
2d at 193, Tabion, 877 F. Supp. at 291. Residual immunity, however, is limited to acts “performed
on behalf of or imputable to the sending State,” Denza at 441. It is not the case that all acts of a
diplomatic agent, other than those for which there is an exception to immunity under Article 31, are
“performed on behalf of or imputable to the sending State.” The types of conduct that clearly fall
outside the scope of the commercial activities exception are “[o]rdinary contracts incidental to life

in the receiving State, such as purchase of goods, medical, legal or educational services, or
agreements to rent accommodation.” Denza at 305. But it is precisely this type of unofficial
conduct, which is incidental to the life of a diplomat and therefore protected by the broad immunity
provided under Article 31, that would appear to fall outside the scope of the official acts “imputable
to the sending State” for which Article 39(2) provides residual immunity.
Indeed, to conflate conduct that is not commercial, and thus outside the scope of Article
31(1)(c), with acts performed in the exercise of a diplomat’s function as a member of the mission
for which there is ongoing immunity under Article 39(2), would provide former diplomats with
essentially the same broad immunity enjoyed by accredited diplomats. As noted by the Swarna
court, such conflation,
would eliminate any difference between the scope of immunity provided by Art. 31
and that provided by Art. 39, despite the use of more restrictive language in Art. 39. .
. . Art. 39 first provides that a diplomatic agent’s immunity “shall normally cease”
when his duties “come to an end” and he departs the country or after a reasonable
time to depart has expired. VCDR [A]rt. 39(2). The next sentence qualifies the prior
one: “However, with respect to acts performed by such a person in the exercise of his
functions as a member of the mission, immunity shall continue to subsist.” Id. This
qualifier makes clear that diplomatic agents were only intended to receive residual
immunity with respect to official acts, and that not all acts of a diplomatic agent
were understood to be official.
Swarna, 2009 WL 773446, at *10. . . .
*

*

*

*

3. Protection of Diplomatic Property and Diplomats
On September 21, 2009, Honduran President Manuel Zelaya, who was
removed from office in a coup d’etat on June 28 and forced to leave
Honduras, returned to Honduras and took refuge at the Brazilian Embassy.
On September 22, 2009, State Department Spokesman Ian Kelly issued a
statement concerning President Zelaya’s return, stressing “the importance
of respecting the inviolability of the Embassy of Brazil in Tegucigalpa and
the individuals on its premises.” The statement also noted “with
appreciation the de facto authority’s statement last night promising to
respect the Vienna Convention on Diplomatic Relations of 1961, to which
Honduras is a party.” The full text of the statement is available at
www.state.gov/r/pa/prs/ps/2009/sept/129479.htm.
On September 25, Ambassador Susan E. Rice, U.S. Permanent
Representative to the United Nations, speaking in the U.S. capacity as
President of the Security Council, made a statement to the press after the
Brazilian Ambassador briefed the Council. On behalf of the Council,
Ambassador Rice stated:

Council members stressed the importance of respecting
International Law through preserving the inviolability of
the Embassy of Brazil in Tegucigalpa, and other
protections afforded it by the Vienna Convention on
diplomatic relations, and ensuring the safety of
individuals on its premises. They condemned acts of
intimidation against the Brazilian Embassy and called
upon the de facto government of Honduras to cease
harassing the Brazilian Embassy and to provide all
necessary utilities and services including water,
electricity, food and continuity of communications.
Respect and protection of the inviolability of diplomatic
premises is a universally accepted principle of
international relations.

See
http://usun.state.gov/briefing/statements/2009/september/129633.htm;
see also the remarks of Legal Adviser Harold Hongju Koh at a press briefing
in Geneva, available at
http://geneva.usmission.gov/news/2009/09/28/koh-posner/, and the
October 28 remarks of Ambassador Alejandro D. Wolff, Deputy Permanent
Representative to the United Nations, to the General Assembly, available at
http://usun.state.gov/briefing/statements/2009/131038.htm. Chapters
6.I.2., 7.C.1.b., and 16.A.4.c. provide additional discussion of the U.S.
response to the coup in Honduras.

C. OTHER ISSUES OF STATE REPRESENTATION
1. Designation of a Benefit Under the Foreign Missions Act

a. Exemption of foreign diplomatic and consular staff from tobacco excise
taxes
On January 14, 2009, Ambassador Eric J. Boswell, Director of the State
Department’s Office of Foreign Missions and Assistant Secretary for
Diplomatic Security, designated as a benefit under the Foreign Missions Act,
22 U.S.C. §§ 4301–4316, an exemption for foreign missions and their
personnel from excise taxes on tobacco and tobacco products. The
designation, which was published in the Federal Register, as set forth
below, was intended to clarify that the exemption from taxation provided
under the Vienna Conventions and other international agreements included
an exemption from these excise taxes. 74 Fed. Reg. 5019 (Jan. 28, 2009).

The Department had similarly designated an exemption for diplomatic and
consular missions and their personnel from federal manufacturers’ and
retailers’ excise taxes under the Foreign Missions Act in 1998 for purchases
from the manufacturer or retailer liable for the tax.
___________________
After due consideration of the benefits, privileges and immunities provided to missions of the
United States under the Vienna Diplomatic and Consular Conventions and other governing treaties,
and in order to facilitate relations between the United States and foreign governments, to improve or
maintain the availability of tax exemption privileges for the United States, and by virtue of the
authority vested in me under the Foreign Missions Act, 22 U.S.C. 4301 et seq., and Delegation of
Authority No. 214, § 14, dated September 20, 1994, I hereby designate as a benefit under the Act, to
be granted to foreign diplomatic and consular missions and personnel in the United States on the
basis of reciprocity and as otherwise determined by the Department, to include personnel of
international organizations and missions to such organizations who are otherwise entitled to
exemption from direct taxes, exemption from Federal and State or local excise taxes imposed with
respect to tobacco products (as defined in 26 U.S.C. 5702) manufactured, packaged or sold in the
United States. Procedures governing implementation of this benefit will be established by the
Department of the Treasury.

b. Exemption from real property taxes on certain consular and diplomatic
property
On June 23, 2009, Deputy Secretary of State for Management and Resources
Jacob J. Lew designated an “exemption from real property taxes on property
owned by foreign governments and used to house staff of permanent
missions to the United Nations or the Organization of American States or of
consular posts as a benefit for purposes of the Foreign Missions Act.”
Deputy Secretary Lew further determined that “any state or local laws to the
contrary are hereby preempted.” 74 Fed. Reg. 31,788 (July 2, 2009). As the
Federal Register notice, set forth below, explained, in so doing, Deputy
Secretary Lew extended to diplomatic missions to the United Nations and
the Organization of American States and to consular posts nationwide the
same tax treatment the United States had provided to bilateral diplomatic
missions in Washington, D.C. since 1986. The Deputy Secretary acted,
among other things, “to assist in resolving a dispute affecting U.S. interests
and involving foreign governments which assert that international law
requires the exemption from taxation of such diplomatic and consular
properties.”
___________________
Pursuant to the authority vested in the Secretary of State by the laws of the United States, including
the Foreign Missions Act, 22 U.S.C. 4301 et seq., and delegated by the Secretary to me as one of
the President’s principal officers for foreign affairs by Delegation of Authority No. 245-1 of
February 13, 2009, and at the direction of the Secretary of State, and after due consideration of the

benefits, privileges, and immunities provided to missions of the United States abroad, as well as
matters related to the protection of the interests of the United States, and at the request of foreign
missions, I hereby designate exemption from real property taxes on property owned by foreign
governments and used to house staff of permanent missions to the United Nations or the
Organization of American States or of consular posts as a benefit for purposes of the Foreign
Missions Act. I further determine that such exemption shall be provided to such foreign missions on
such terms and conditions as may be approved by the Office of Foreign Missions and that any state
or local laws to the contrary are hereby preempted. Prior inconsistent guidance is hereby rescinded.
This action is in accord with the tax treatment of foreign government-owned property in the United
States used as residences for staff of bilateral diplomatic missions, see Department of State, Notice:
Property Owned by Diplomatic Missions and Used to House the Staff of Those Missions is Exempt
from General Property Taxes, 51 FR 27303 (July 30, 1986), and conforms to the general practice
abroad of exempting government-owned property used for bilateral or multilateral diplomatic and
consular mission housing.
This action is necessary to facilitate relations between the United States and foreign states,
to protect the interests of the United States, to allow for a more cost effective approach to obtaining
benefits for U.S. missions abroad, and to assist in resolving a dispute affecting U.S. interests and
involving foreign governments which assert that international law requires the exemption from
taxation of such diplomatic and consular properties. The dispute has become a major irritant in the
United States’ bilateral relations and threatens to cost the United States hundreds of millions of
dollars in reciprocal taxation. As the largest foreign-government property owner overseas, the
United States benefits financially much more than other countries from an international practice
exempting staff residences from real property taxes, and it stands to lose the most if the practice is
undermined. Responsive measures taken against the United States because of the dispute also have
impeded significantly the State Department’s ability to implement urgent and congressionally
mandated security improvements to our Nation’s diplomatic and consular facilities abroad,
imposing unacceptable risks to the personnel working in those facilities. This action will allow the
United States to press forward with improvements that will protect those who represent the Nation’s
interests abroad.
The exemption from real property taxes provided by this designation and determination shall
apply to taxes that have been or will be assessed against any foreign government with respect to
property subject to this determination, and shall operate to nullify any existing tax liens with respect
to such property, but shall not operate to require refund of any taxes previously paid by any foreign
government regarding such property. These actions are not exclusive and are independent of
alternative legal grounds that support the tax exemption afforded herein.

c. Litigation concerning tax liens and property taxes imposed on consular and
diplomatic property
On June 29, 2009, the United States filed a brief as amicus curiae, urging
the U.S. Court of Appeals for the Second Circuit to vacate a lower court’s
judgment that upheld New York City’s imposition of tax liens and
assessment of local property taxes on residences owned by the
Governments of India and Mongolia and used to house staff of their
missions to the United Nations, and in the case of India, of its consular post

as well. City of New York v. Permanent Mission of India to the United
Nations, No. 08-1805-cv (2d Cir.). See Digest 2006 at 592–603; Digest
2007 at 455–62; and Digest 2008 at 456–57 and 495–98 for prior
developments in the litigation. The U.S. brief argued that the court should
vacate the lower court’s judgment that India and Mongolia owed
approximately $42 million and $4 million, respectively, because the State
Department’s June 23, 2009 determination, discussed in C.1.b. supra,
exempted “taxes that have been or will be assessed” and nullified “any
existing tax liens.” Excerpts below from the U.S. brief discuss the State
Department’s authority under the Foreign Missions Act to designate and
determine a tax exemption as a benefit accorded to foreign missions. The
initial U.S. brief and the supplemental brief the United States filed on
October 19, 2009, are available at www.state.gov/s/l/c8183.htm. The
litigation remained pending at the end of 2009.*
___________________
*
*
*
*
1. The State Department’s Notice falls within the broad authority granted in the FMA. That statute
specifies that the State Department shall determine “[t]he treatment to be accorded to a foreign
mission in the United States.” 22 U.S.C. § 4301(c). Among the functions specified in the FMA, the
State Department shall “[p]rovide or assist in the provision of benefits for or on behalf of a foreign
mission in accordance with section 4304 of this title.” 22 U.S.C. § 4303(2).
In turn, section 4304 delineates the “[p]rovision of benefits” by the State Department to
foreign missions. The State Department can provide benefits, subject to any “terms and conditions”
the Department specifies, either “[u]pon the request of a foreign mission,” or whenever the State
Department “determines that such action is reasonably necessary on the basis of reciprocity or
otherwise” in order to advance certain foreign relations goals. 22 U.S.C. § 4304(a)–(b). The statute
lists those goals, which include:
•
•
•

*

“to facilitate relations between the United States and a sending State,”
“to protect the interests of the United States,”
“to adjust for costs and procedures of obtaining benefits for missions of the United States
abroad,” and

Editor’s note: On August 17, 2010, the U.S. Court of Appeals for the Second Circuit vacated and
reversed the district court’s opinion and remanded. City of New York v. Permanent Mission of India
to the United Nations, 2010 U.S. App. LEXIS 17127 (2d Cir. 2010). The Second Circuit concluded
that the State Department had acted within its statutory authority. The court held first “that the
Foreign Missions Act (“FMA”) permits the State Department to designate affirmative benefits such
as tax exemptions and that the Act allows the State Department to make such tax exemptions
preemptive of State and municipal tax laws.” Id. at *4. Second, the court held “that, under the
circumstances of this case, the State Department acted within its power in designating this benefit as
effective retroactively.” Id. The court also “conclude[d] that the Notice issued by the State
Department was procedurally proper because it [fell] within the ‘foreign affairs function’ exception
to notice and comment under the Administrative Procedure Act, 5 U.S.C § 553(a)(1).” Id. at *4–5.

•

“to assist in resolving a dispute affecting United States interests and involving a foreign
mission or sending State.”

22 U.S.C. § 4304(b)(1)–(4).
“Benefit” is a broad, inclusive term in the FMA. The statute specifies one category of
benefits—the acquisition of property, goods, or services—but the statute also delegates to the State
Department the authority to specify “such other benefits as the Secretary may designate.” 22 U.S.C.
§ 4302(a)(1). The definition of “benefit” thus gives the State Department authority to determine all
aspects of the “treatment to be accorded to a foreign mission in the United States.” 22 U.S.C. §
4301(c).4 The expansive scope of the State Department’s authority to confer benefits is confirmed
by Congress’ direction that “[d]eterminations with respect to the meaning and applicability of the
term[] * * * shall be committed to the discretion of the Secretary.” 22 U.S.C. § 4301(b). Thus, the
State Department not only has the statutory power to “designate” any “other benefits,” but may also
“[d]etermin[e]” the “meaning” of the term “benefit.”
The FMA repeatedly emphasizes the broad authority Congress granted to the State
Department to specify the treatment of foreign missions by designating benefits. See, e.g., 22
U.S.C. §§ 4301(c), 4302(b), 4303(1)–(2), (5), 4304(a)–(b). The statute also expressly commits to
the State Department’s discretion all determinations under the FMA, including the designation and
determination of benefits. See 22 U.S.C. § 4308(g) (“Except as otherwise provided, any
determination required under this chapter shall be committed to the discretion of the Secretary.”).
That language reflects Congress’ judgment that the State Department shall bear primary
responsibility for determining the treatment of foreign missions. . . .

4

In determining the “treatment” to be accorded to foreign missions, the FMA directs the State
Department to consider (among other factors) the reciprocal “benefits, privileges, and immunities”
accorded to missions of the United States by other countries. 22 U.S.C. § 4301(c). The statute also
directs the State Department to “[a]ssist” federal, state, and local governments in “according
benefits, privileges and immunities” to foreign missions. 22 U.S.C. § 4303(1). Although the FMA
refers to privileges and immunities along with benefits, the statute does not expressly grant the State
Department any specific authority to establish privileges and immunities of missions. Instead, the
statutory phrase refers to the international law obligations the United States owes to foreign
missions. See 28 U.S.C. § 4310 (entitled “Privileges and immunities”) (“Nothing in this chapter
shall be construed to limit the authority of the United States to carry out its international law
obligations.”). The FMA gives the State Department authority to confer benefits that go beyond the
privileges and immunities established by international law. Indeed, the legislative history reflects
Congress’ view that privileges and immunities under international law are a subset of the benefits
that the State Department is authorized to provided to foreign missions. See, e.g., 127 Cong. Rec.
H26074 (Oct. 29, 1981) (section-by-section analysis of House bill substantially identical to FMA as
enacted: FMA’s broad authority “is intended * * * to enable the United States to exercise more
effective control over the granting of privileges, immunities, and other benefits to foreign
missions”). Although appellants argue that U.N. mission-staff housing is entitled to tax exemption
under international law, the State Department acted under its domestic statutory authority pursuant
to the FMA. The Notice thus does not require the Court to answer the question whether
international law would provide an independent basis for affording appellants an exemption from
real estate taxes.

*
*
*
*
3. The State Department’s Notice here is a proper exercise of the powers granted under the
FMA. In 1986, the State Department issued a public notice recognizing an exemption from real
property taxes for the residences of staff of bilateral foreign diplomatic missions. See 51 Fed. Reg.
27303 (July 30, 1986). The Fourth Circuit upheld that policy and (relying on the Supremacy Clause)
prohibited efforts by a local government to impose real estate taxes on such diplomatic-residence
properties. See United States v. Arlington County, 669 F.2d 925 (4th Cir. 1982) (Arlington County
I) (upholding application of the State Department tax-exemption policy prospectively); United
States v. Arlington County, 702 F.2d 485 (4th Cir. 1983) (Arlington County II) (retroactive
application upheld).
At the time of that announcement, the State Department’s policy concerning tax exemption
for staff-residence property extended only to the housing for staff of bilateral diplomatic missions,
not to other foreign mission staff residences, such as foreign government property used to house
staff of consulates or permanent missions to international organizations. Under the State
Department’s policy at the time, those other mission properties remained subject to real property
taxes by state and local governments. See United States Mission to the United Nations Circular
Note HC-12-01 (April 5, 2001).
In the intervening years, the efforts of local governments in the United States to tax foreign
mission property used to house staff of consulates and permanent missions to international
organizations—including efforts by New York City to impose real estate taxes on the properties at
issue in this case—have proved to be a persistent irritant in the foreign relations of the United
States. The governments of India and Mongolia, among others, have repeatedly objected to those
tax assessments, and have sought protection from the State Department.
Even more significantly, foreign governments have recently imposed or threatened to
impose barriers, restrictions, and limitations on the operation of United States missions abroad. For
example, the government of India has refused to issue permits for a new consular compound in
Mumbai, resulting in substantial monetary costs to the United States and frustrating efforts to
improve security for consular staff. . . .
Foreign governments have also threatened to impose taxes on staff-residence property
owned by the United States abroad, justifying their policies by reference to the taxable status in the
United States of property used for foreign mission staff housing. . . .
The Notice expressly refers to those concerns, and explains the disproportionate harm to the
United States that flows from local taxation of foreign mission properties in this country. . . .
*

*

*

*

2. London Congestion Tax
On August 12, 2009, the Department of State Office of the Spokesman
responded to a question taken at the daily press briefing, asking “What is
U.S. Government policy regarding the United Kingdom’s Congestion Tax?”
The City of London assesses a daily tax of eight pounds (£8.00) on all
motorists entering an area of central London where the U.S. Embassy is
located. “U.S. Government policy regarding the Congestion Tax has not

changed,” the Department’s response explained. “This is longstanding U.S.
Government policy and is not affected by a change in Ambassadors.” The
Department also stated, “The Congestion Tax is prohibited by various
treaties, including the Vienna Convention on Diplomatic Relations; the
Vienna Convention on Consular Relations; our 1951 bilateral Consular
Agreement with the United Kingdom; and the NATO Status of Forces
Agreement.” The Department’s response is also available at
www.state.gov/r/pa/prs/ps/2009/aug/127997.htm. Additional discussion
of the U.S. position concerning the congestion tax is available in Digest
2005 at 570–74.

3. Agreement for Construction and Renovation of Embassies, Consulates, and
the Permanent Mission of the People’s Republic of China to the United
Nations
On August 20, 2009, the United States and the People’s Republic of China
(“PRC”) signed an international agreement governing the terms under which
embassies, consulates, and the PRC’s Permanent Mission to the United
Nations may be constructed, expanded, renovated, or demolished.
Agreement Between the Government of the United States of America and the
Government of the People’s Republic of China on the Conditions of
Construction of Diplomatic and Consular Complexes in the People’s
Republic of China and the United States of America. Provisions excerpted
below relate to the diplomatic and consular status of sites and archives;
treatment of personnel, including privileges and immunities; and shipments
of project-related materials and equipment, including a special bilateral
arrangement for processing such shipments through upon arrival in both
countries’ ports. The agreement entered into force upon signature and will
remain in effect for ten years from that date. The full text of the agreement
is available at www.state.gov/documents/organization/130493.pdf.
___________________
*
*
*
*
8. Diplomatic and Consular Status of Sites and Archives
8.1 Any site acquired by either Party for future diplomatic and consular construction projects,
whether acquired prior or subsequent to this Agreement, shall be considered part of the premises of
the Construction Party’s diplomatic or consular mission under the VCDR or the China–U.S.
Consular Treaty, respectively, from the date of delivery of right to use.
8.2 All of the Construction Party’s temporary sites shall be considered part of the premises
of the Construction Party’s diplomatic or consular mission under the VCDR or the China–U.S.
Consular Treaty, respectively, within the duration of use approved by the Host Country.
8.3 All sites referred to in Articles 8.1 and 8.2 of this Agreement shall be inviolable and
under the total control of the Construction Party.

8.4 The records and papers of an organization from the same country as the Construction
Party relating to design or construction work performed in connection with such construction
(including but not limited to tender and contract documents, architectural and engineering plans and
specifications) shall be considered a constituent part of the archives of the diplomatic or consular
mission of the Construction Party and shall be inviolable under the VCDR and the China–U.S.
Consular Treaty, respectively.
*
*
*
*
9.6 Construction Party personnel who are of Construction Party nationality, and whose stay
in the Host Country is more than 30 calendar days, shall be attached, as appropriate, to the
Construction Party diplomatic mission as administrative and technical staff or to a consular mission
as employees of the consulate for the duration of their work on a project. These personnel shall
enjoy the privileges and immunities accorded administrative and technical staff of the diplomatic
mission under the VCDR, or those accorded employees of a consulate under the China–U.S.
Consular Treaty, respectively.
*
*
*
*
[Shipments] 10.4 As a special bilateral arrangement, the Host Country customs shall, after
the landing of construction materials and equipment shipped as special dedicated project materials
for the Construction Party’s embassy or consulate and within 48 hours of the submission of
Construction Party’s written declaration to the customs authorities, finish procedures for release and
release the articles pursuant to Host Country customs procedures. The Construction Party shall
submit advance written notice in accordance with Host Country requirements no later than 24 hours
before the arrival of the shipments. The Construction Party shall comply with related Host Country
laws and regulations and shall attach visible marks to the shipments and make customs declarations
in writing to Host Country customs authorities.
10.5 The Parties pledge that construction materials and equipment shipped as special
dedicated project materials for the embassy or consulate, as well as equipment installed and used,
shall all respect relevant provisions of the VCDR or the China–U.S. Consular Treaty related to
articles for official use of the mission and at the same time shall be in keeping with Host Country
laws and regulations, and shall be limited to official and communications use of the embassy or
consulate. No equipment and instruments that endanger Host Country security shall be imported. As
a necessary means to determine whether construction materials and equipment shipped by the
Construction Party include equipment and instruments that endanger Host Country security and
whether construction materials and equipment shipped conform to the declaration, the Host Country
shall have the right to subject shipments to passive inspection, without opening the containers; or,
on the premise that prior notice is served to the Construction Party, shall have the right to subject
shipments to active inspection, without opening the containers. Such inspections shall be conducted
in the presence of the Construction Party’s diplomatic or consular agents or its authorized
personnel. In the event the Construction Party objects to an active inspection, it shall have the right
to return such shipments unopened and without inspection. In the event the Host Country
determines that the Construction Party is importing equipment and instruments that endanger its
national security, or that the materials and equipment shipped do not conform to the declaration, the
Host Country, on the premise that prior notice is served to the Construction Party, shall have the
right to inspect by opening the containers. Such inspections shall be conducted in the presence of
the Construction Party’s diplomatic or consular agents or its authorized personnel. In the event the

Construction Party objects to an inspection, it shall have the right to return such shipments
unopened and without inspection.
*

*

*

*

4. Labor Issues
On September 16, 2009, the Department of State circulated a diplomatic
note to Chiefs of Mission of diplomatic missions in the United States,
discussing the standards applicable to the employment of domestic workers
of mission personnel who are in the United States on nonimmigrant A-3 or
G-5 visas. The note superseded previous notes on the same subject and
“emphasize[d] the importance the United States Government attaches to
providing fair treatment to domestic workers who come to the United States
to work for members of the diplomatic community.” It also “remind[ed] the
Chiefs of Mission to take any and all measures necessary to ensure that
members of their missions employing such workers respect the laws
relating to the treatment to be accorded to domestic workers.”
The first section of the note addressed the Department of State’s two
new requirements concerning prospective domestic workers’ eligibility for
visas. As it explained, “Effective October 15, 2009, the Department of State
will also require that foreign missions notify the Department of any
prospective domestic worker before the worker applies for a visa.” Second,
the note advised that the Department would presume that foreign mission
personnel below the rank of Minister would not be able to provide the
legally required wages and working conditions; to overcome this
presumption, the prospective mission member would have to demonstrate
the financial ability to pay the salary and related travel expenses of a
domestic worker. The note explained further that
[t]o overcome this presumption, a prospective mission
member not having the rank of Minister or above would
have to demonstrate to the consular officer reviewing the
A-3 or G-5 visa application that he or she has the
financial ability to pay the salary of the domestic worker
as specified in the contract, as well as the related travel
expenses. The consular officer will also take into
consideration the number of domestic workers that a
particular mission member may reasonably have the
ability to employ. If a mission member seeks to replace a
domestic worker or add to his/her existing domestic
staff, the A-3 or G-5 visa may be denied if the
Department has credible evidence that the mission
member failed to fulfill his/her obligations to a former or

current employee, such as to abide by the contract terms
generally, and specifically, to pay a fair wage.
The Department’s note also announced a new requirement that wage
payments to domestic workers be made either by check or electronic fund
transfer to a bank account in the domestic worker’s name only, prohibiting
cash payments to such workers. In addition, the note reminded the Chiefs
of Mission that passports of domestic workers must be in the sole
possession of the worker and advised them of a new statute requiring the
Secretary of State to suspend A-3 or G-5 visas for missions in certain
circumstances.
Finally, the note advised the Chiefs of Missions of new statutory
authority that requires the Secretary of State to “suspend for such period as
the Secretary determines necessary, the issuance of A-3 visas or G-5 visas
to applicants seeking to work for officials of a diplomatic mission or
international organization, if the Secretary determines that there is credible
evidence that one or more employees of such mission or international
organization have abused or exploited one or more nonimmigrants holding
an A-3 or G-5 visa, and that the diplomatic mission or international
organization tolerated such actions.” William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat.
5044 (see Digest 2008 at 119–20). The note also stated that the
Department of State “forwards to the Department of Justice all credible
allegations of abuse of domestic workers by mission members which may
constitute criminal conduct. In that context, the Department of State may
take other appropriate action, including a request for a waiver of any
applicable immunity, based on a determination by an appropriate
prosecuting authority.”
The full text of the note is available at www.state.gov/s/l/c8183.htm.

D. INTERNATIONAL ORGANIZATIONS
1. INTERPOL
On December 16, 2009, President Barack H. Obama issued Executive Order
13524, expanding INTERPOL’s privileges and immunities in the United
States. 74 Fed. Reg. 67,803 (Dec. 21, 2009). The order amends Executive
Order 12425 of June 15, 1983, which designated INTERPOL as a public
international organization pursuant to the International Organizations
Immunities Act (“IOIA”), 22 U.S.C. § 288. The 1983 order provided INTERPOL
with certain privileges and immunities, including certain immunities from
suit and legal process in the United States but withheld some of the benefits
normally given to international organizations under the IOIA because, at the

time, INTERPOL did not have an office in the United States. Because
INTERPOL opened a liaison office to the United Nations in New York in 2004,
the new order extends to INTERPOL the remaining privileges and immunities
that IOIA-designated international organizations with offices in the United
States normally enjoy. The privileges and immunities the new order accords
to INTERPOL include: immunity from search and confiscation of its property
and archives or files; freedom from customs duties and taxes related to the
importation of baggage and effects; and immunity from federal income,
Social Security, and property taxes. The new order does not enable or
authorize INTERPOL or its officials to conduct searches or seizures, make
arrests, or take any other law enforcement actions in the United States.

2. Constitutionality of the International Organizations Immunities Act
On May 1, 2009, the United States filed a brief as intervenor in the U.S.
Court of Appeals for the Second Circuit in a case brought by a Portuguese
and Italian national against her former employer, the World Meteorological
Organization (“WMO”), a specialized agency of the United Nations, and four
current or former WMO officials for acts that allegedly occurred in
Switzerland. Veiga v. World Meteorological Org., No. 08-3999-cv (2d Cir.).
The plaintiff brought employment-related and other claims arising from her
alleged discovery of an embezzlement scheme and efforts to expose it. In
2008 a district court dismissed the plaintiff’s claims for lack of subject
matter jurisdiction, rejecting the plaintiff’s argument that the Constitution
was violated by dismissal of her claims under the International
Organizations Immunities Act (“IOIA”), 22 U.S.C. § 288 et seq. On appeal,
the plaintiff reiterated her argument that the application of the IOIA to
dismiss her claims was unconstitutional. The United States took no position
on the merits of the plaintiff’s claim but defended the constitutionality of
the IOIA. As an initial matter, the United States explained that, “[a]s a
foreign citizen who at all relevant times resided and worked in Switzerland,
and who has sued her former employer, an international organization based
in Switzerland, as well as its employees, for acts that occurred entirely
abroad, the plaintiff has no constitutional rights to invoke.” The United
States then argued that “there is simply no constitutional right to bring suit
free from the application of immunity doctrines.” Excerpts follow from the
brief’s discussion of the constitutionality of the IOIA. The full text of the
brief is available at www.state.gov/s/l/c8183.htm. The litigation remained
pending as of the end of 2009.*
___________________
*

On March 3, 2010, the U.S. Court of Appeals for the Second Circuit affirmed the district court’s
judgment. Veiga v. World Meteorological Org., 368 Fed. Appx. 189 (2d Cir. 2010); 2010 U.S. App.
LEXIS 4440 (2d Cir. 2010).

*
*
*
*
The authority of the political branches to define and confer immunities includes the authority to
grant immunities to designated public international organizations, such as the WMO. Although
international organizations are not themselves foreign states, the statutory extension of immunities
historically enjoyed by foreign states to international organizations reflects the international
community’s “growing efforts to achieve coordinated international action through multinational
organizations with specific missions.” Mendaro v. World Bank, 717 F.2d 610, 615 (D.C. Cir. 1983).
In passing the IOIA, Congress noted the “increased activities of the United States in relation to
international organizations,” and specifically recognized the need to “extend privileges of a
governmental character” in cases where “this Government associates itself with one or more foreign
governments in an international organization.” S. Rep. No. 79-861, at 2 (1945). Indeed, Congress
limited the reach of the IOIA to public international organizations, described in the House Report as
“those which are composed of governments as members,” H.R. Rep. No. 79-1203, at 1 (1945), in
which “the United States participates pursuant to any treaty or under the authority of any Act of
Congress authorizing such participation or making an appropriation for such participation, and
which shall have been designated by the President through appropriate Executive order as being
entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter.” 22 U.S.C.
§ 288; see also Exec. Order 10,676, 21 Fed. Reg. 6625 (1956) (designating WMO). The extension
of such privileges is a logical one given the function of international organizations to serve as the
instrumentalities of many nations, and given the modern reality that international organizations are
critical fora for the conduct of foreign affairs.
The immunities of international organizations have been repeatedly recognized and
respected by district courts within this Circuit over many years without their constitutionality ever
having been called into question. See, e.g., Van Aggelen v. United Nations, 06 Civ. 8240 (LBS),
2007 WL 1121744, at * 1 (S.D.N.Y. Apr. 12, 2007), aff’d, 2009 WL 424175 (2d Cir. 2009); D’Cruz
v. Annan, 05 Civ. 8918 (DC), 2005 WL 3527153, at *1–2 (S.D.N.Y. Dec. 22, 2005), aff’d, 223 Fed.
Appx. 42 (2d Cir. 2007); McGehee v. Albright, 210 F. Supp. 2d 210, 218 (S.D.N.Y. 1999), aff’d,
208 F.3d 203 (2d Cir. 2000); Askir v. Boutros-Ghali, 933 F. Supp. 368, 373 (S.D.N.Y. 1996); De
Luca v. United Nations Org., 841 F. Supp. 531, 533 (S.D.N.Y.), aff ’d, 41 F.3d 1502 (2d Cir. 1994);
Klyumel v. United Nations, 92 Civ. 4231 (PKL), 1993 WL 42708, at *1 (S.D.N.Y. Feb. 17, 1993);
Boimah v. United Nations Gen. Assembly, 664 F. Supp. 69, 71 (E.D.N.Y. 1987).
Furthermore, the few courts to have specifically considered constitutional challenges to the
immunities of international organizations or their officials have rejected those challenges out of
hand. See Weinstock v. Asian Development Bank, No. Civ.A 105 CV00174RMC, 2005 WL
1902858, at *3–*4 (D.D.C. Jul. 13, 2005) (rejecting constitutional challenge to immunity afforded
to international organizations under the IOIA); Ahmed v. Hogue, 01 Civ. 7224 (DLC), 2002 WL
1964806, at *7 (S.D.N.Y. Aug. 23, 2002) (rejecting plaintiff’s constitutional challenge to diplomatic
immunity invoked by Bangladeshi representative to the United Nations); Tuck v. Pan Am. Health
Org., 668 F.2d 547, 549–550 (D.C. Cir. 1981) (upholding defendant’s immunity under IOIA
without addressing plaintiff’s First and Fourteenth Amendment claims).
As the district court recognized in Weinstock, in rejecting the plaintiff’s assertion that the
dismissal of claims [against] the Asian Development Bank deprived the plaintiff of his
“fundamental right of access to the court,”

[i]t is axiomatic that Congress can limit the jurisdiction of the lower federal courts.
E.g., Keene Corp. v. United States, 508 U.S. 200, 207 (1993) (“Congress has the
constitutional authority to define the jurisdiction of the lower federal courts. . . .”).
One method by which it can do so, and which it employs quite frequently, is to
provide by statute that the United States, foreign sovereigns, or certain entities are
immune from suit in the district courts. The codification of these immunities is not a
constitutional violation.
Weinstock, 2005 WL 1902858, at *3 (some citations omitted). The same rationale applies here, and
bars the plaintiff’s constitutional challenge.
*

*

*

*

Cross References

Immigration and visas and U.S. visa-related restrictions, Chapters 1.C. and
16.A.4.c.(2), 4.d., and 4.e.
Trafficking in persons, Chapters 3.B.3. and 16.A.7.
Security Council travel bans, Chapter 16.A.1.a.(1), 2.a., 3.a., and 3.b.
References to privileges and immunities and other benefits provided under
earlier bilateral defense agreements in U.S.–Colombia Defense
Cooperation Agreement, Chapter 18.A.1.c.(1)



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