Jenny Rubin v. Islamic Republic of , 637 F.3d 783 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2805
JENNY R UBIN , et al.,
Plaintiffs-Appellees,
and
D EBORAH D. P ETERSON, et al.,
Intervenors-Appellees,
v.
T HE ISLAMIC R EPUBLIC OF IRAN,
Defendant-Appellant,
and
F IELD M USEUM OF N ATURAL H ISTORY and
U NIVERSITY OF C HICAGO, THE O RIENTAL INSTITUTE,
Intervenors.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CV 9370—Blanche M. Manning, Judge.
A RGUED O CTOBER 26, 2009—D ECIDED M ARCH 29, 2011
2 No. 08-2805
Before B AUER and SYKES, Circuit Judges, and SIMON,
District Judge.Œ
S YKES, Circuit Judge. The Islamic Republic of Iran
appeals two orders issued in connection with a long-
running effort to collect on a large judgment entered
against it for its role in a 1997 terrorist attack. The plain-
tiffs are American citizens who were injured in a
brutal suicide bombing in Jerusalem, Israel, carried out
by Hamas with the assistance of Iranian material sup-
port and training. The victims obtained a $71 million
default judgment against Iran in federal district court in
Washington, D.C., and then registered that judgment in
the Northern District of Illinois for the purpose of at-
taching two collections of Persian antiquities owned by
Iran but on long-term academic loan to the University of
Chicago’s Oriental Institute. They also sought to attach
a third collection of Persian artifacts owned by Chicago’s
Field Museum of Natural History. They contend that
this collection, too, belongs to Iran but was stolen and
smuggled out of the country in the 1920s or 1930s and
later sold to the museum. Iran’s appeal requires us to
consider the scope and operation of § 1609 of the Foreign
Sovereign Immunities Act of 1976 (“FSIA”), 28 U.S.C.
§§ 1330(a), 1602-1611, which provides that a foreign
state’s property in the United States is immune from
attachment unless a specific statutory exception to im-
munity applies.
Œ
The Honorable Philip P. Simon, Chief Judge of the United
States District Court for the Northern District of Indiana, sitting
by designation.
No. 08-2805 3
The district court held that the immunity codified in
§ 1609 is an affirmative defense personal to the foreign
sovereign and must be specially pleaded. Because Iran
had not appeared in the attachment proceeding, this
ruling had the effect of divesting the collections of their
statutory immunity unless Iran appeared and affirma-
tively asserted it. So Iran appeared and made the im-
munity claim. In response the plaintiffs served Iran
with requests for discovery regarding all Iranian-
owned assets located anywhere in the United States. Not
surprisingly, Iran resisted, maintaining that such far-
flung and open-ended discovery about its American-
based property was inconsistent with the FSIA. The
district court disagreed and ordered general-asset dis-
covery to proceed. Iran appealed.
The district court’s discovery order effectively rejected
Iran’s claim of sovereign immunity and is therefore
immediately appealable under the collateral-order doc-
trine. The court’s earlier order, which denied § 1609
immunity in the absence of an appearance by the
foreign state, is also properly before this court. That
order raises closely related questions about sovereign-
property immunity and is revived for review by
Iran’s interlocutory appeal of the general-asset dis-
covery order.
Both orders are seriously flawed; we reverse. The
district court’s approach to this case cannot be re-
conciled with the text, structure, and history of the
FSIA. Section 1609 of the Act provides that “the
property in the United States of a foreign state shall
4 No. 08-2805
be immune from attachment” unless an enumerated
exception applies. (Emphasis added.) This section
codifies the longstanding common-law principle that a
foreign state’s property in the United States is presumed
immune from attachment. This presumptive immunity,
when read with other provisions of the FSIA, requires
the plaintiff to identify the specific property he seeks
to attach; the court cannot compel a foreign state to
submit to general discovery about all its assets in the
United States. The presumption of immunity also
requires the court to determine—sua sponte if neces-
sary—whether an exception to immunity applies; the
court must make this determination regardless of
whether the foreign state appears.
I. Background
This appeal has its roots in a vicious terrorist attack.
On September 4, 1997, Hamas carried out a triple
suicide bombing in the crowded Ben Yehuda Street
pedestrian mall in Jerusalem. See Campuzano v. Islamic
Republic of Iran, 281 F. Supp. 2d 258, 261 (D.D.C. 2003).
Five bystanders were killed and nearly 200 were in-
jured. Hamas claimed responsibility for the bombing, and
Israeli police arrested two Hamas operatives who partici-
pated in the attack. Id. at 261-62. They and other members
of their Hamas cell gave Israeli authorities information
about the planning, financing, and execution of this act of
terrorism. The two were later convicted of multiple counts
of murder and attempted murder. Id.
No. 08-2805 5
The plaintiffs here—Jenny Rubin and her mother,
Deborah Rubin; Stuart Hersh and his wife, Renay Frym;
Noam Rozenman and his parents, Elena and Tzvi
Rozenman; Daniel Miller; and Abraham Mendelson—are
American citizens who were grievously wounded in
the September 4, 1997 bombing or suffered severe emo-
tional and loss-of-companionship injuries as a result
of being closely related to those who were physically
hurt. These victims filed suit against Iran in federal
district court in Washington, D.C., alleging that Iran was
responsible for the bombings as a result of the training
and support it had provided to Hamas. Id. Jurisdiction
was predicated on § 1605(a)(7) (1996) of the FSIA, and
the district court consolidated the action with another
suit filed by a separate group of victims of the bombing.
Id. at 261. Iran was properly served but defaulted.
Pursuant to the requirements of § 1608(e) of the FSIA,
the district court held a three-day evidentiary hearing
before issuing a default judgment against Iran for
$71.5 million in compensatory damages.1 Id. at 272-77.
1
The victims also received an award of punitive damages
against other defendants—senior Iranian officials—but this
attachment proceeding involves only Iran itself. Liability
against Iran and its officials was premised on § 1605(a)(7),
read in conjunction with the “Flatow Amendment,” 28 U.S.C.
§ 1605 note, to create a private cause of action against
foreign sovereigns for acts of terrorism, including extra-
judicial killings. In a separate case, the D.C. Circuit later
held that no such private cause of action against foreign sover-
(continued...)
6 No. 08-2805
At this point the plaintiffs faced a problem familiar to
Iran’s judgment creditors: They had won a significant
judgment but enforcement options were limited. A nation-
wide search for attachable Iranian assets eventually led
to Chicago and its rich collection of ancient artifacts
housed in the city’s major museums. The plaintiffs regis-
tered their judgment with the United States District
Court for the Northern District of Illinois and served the
University of Chicago’s Oriental Institute and later the
Field Museum of Natural History with a Citation to
Discover Assets pursuant to Rule 69(a) of the Federal
Rules of Civil Procedure and chapter 735, section 5/2-1402
of the Illinois Compiled Statutes.2 The plaintiffs iden-
tified three specific collections in the museums’ possession
that they sought to attach and execute against: the
Persepolis and Chogha Mish Collections at the Oriental
Institute, and the Herzfeld Collection at the Field
Museum.3
1
(...continued)
eigns (as opposed to individuals) exists. See Cicippio-Puleo
v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C. Cir. 2004).
Congress responded by supplying a cause of action through
the National Defense Authorization Act of 2008, Pub. L. No. 110-
181, 122 Stat. 3, which amended this section of the FSIA.
This history has no effect on the merits of this appeal.
2
The Field Museum and the Oriental Institute have jointly
briefed this appeal. We refer to them collectively as “the
museums” unless the context requires otherwise.
3
The Rubin plaintiffs are pursuing similar litigation against
Boston-area museums that possess artwork owned by Iran. See
(continued...)
No. 08-2805 7
The first two are collections of Persian antiquities
recovered in excavations in the Iranian city of Persepolis
in the 1930s and on the Chogha Mish plain in south-
western Iran in the 1960s. Archaeologists from the Uni-
versity of Chicago led these excavations, and Iran
loaned the artifacts to the Oriental Institute for long-
term study and to decipher the Elamite writing that
appears on some of the tablets included among the dis-
coveries. The terms of the academic loan require the
Oriental Institute to return the collections to Iran when
study is complete. The Institute says it has finished study-
ing the Chogha Mish Collection and is ready to return
it to Iran pending resolution of a claim before the Iran-
United States Claims Tribunal in the Hague.4 Study of
the Persepolis Collection is apparently ongoing, al-
3
(...continued)
Rubin v. Islamic Republic of Iran, 456 F. Supp. 2d 228 (D. Mass.
2006).
4
The Iran-United States Claims Tribunal was established in
January 1981 under the terms of the Algiers Accords, which
resolved the crisis precipitated by Iran’s seizure of American
hostages at the United States Embassy during the Iranian
Revolution in 1979. Ministry of Defense & Support for the Armed
Forces of the Islamic Republic of Iran v. Elahi, 129 S. Ct. 1732,
1736 (2009). After the hostages were taken, President Carter
blocked Iranian assets within the United States. In connection
with the release of the hostages, the Algiers Accords restored
the financial position of Iran to that which existed before the
crisis. Id. The Tribunal adjudicates property claims between
the two states and their nationals in accordance with the terms
of the Algiers Accords. Id.
8 No. 08-2805
though the Institute says it has returned parts of this
collection to Iran.
The third group of artifacts is known as the
Herzfeld Collection, after the German archaeologist
Ernst Herzfeld who worked on excavations in Persia
for 30 years in the early twentieth century. See Wikipedia,
Ernst Herzfeld, http://en.wikipedia.org/wiki/Ernst_
Herzfeld (last visited Mar. 10, 2011). The Field Museum
purchased a set of prehistoric pottery, metalworks, and
ornaments from Herzfeld in 1945. The plaintiffs contest
the Field Museum’s title; they claim that Iran owns this
collection because Herzfeld stole the artifacts and smug-
gled them out of the country in the 1920s and 1930s.
Iran, however, does not claim ownership of the
Herzfeld Collection.
The plaintiffs alleged that these three collections are
subject to attachment under two provisions in the FSIA:
(1) the exception to § 1609 attachment immunity for
“property in the United States of a foreign state . . . used
for a commercial activity” where the underlying judg-
ment “relates to a claim for which the foreign state is not
immune,” 28 U.S.C. § 1610(a)(7); and (2) the “blocked
assets” provision of the Terrorism Risk Insurance Act
of 2002 (“TRIA”), which provides that the blocked assets
of a terrorist party or its agency or instrumentality are
subject to execution to satisfy a judgment obtained
under the FSIA’s terrorism exception, Pub. L. No. 107-297,
Title II, § 201(a), 116 Stat. 2322, 2337 (2002) (codified at 28
U.S.C. § 1610 note). The museums responded that the
collections are immune from attachment under § 1609 of
No. 08-2805 9
the FSIA and that neither the commercial exception in
§ 1610(a)(7) nor the “blocked assets” provision of TRIA
applies.
The plaintiffs moved for partial summary judgment,
asking the court to hold that § 1609 immunity is an af-
firmative defense that only the foreign state itself can
assert. This question first came before a magistrate
judge, who issued a report and recommendation
agreeing with the plaintiffs that § 1609 immunity is per-
sonal to the foreign state and must be affirmatively
pleaded. The museums objected. The United States
entered the fray, filing a statement of interest on the side
of the museums. The district judge was not impressed
and entered an order agreeing with the magistrate
judge that the foreign state itself must specially plead
§ 1609 immunity.
Instead of taking an immediate appeal, the museums
asked the court to certify the order for appeal under 28
U.S.C. § 1292(b), but other events in the litigation soon
overtook this request. Two days before the museums filed
their § 1292(b) motion, Iran appeared in the district court
and asserted § 1609 attachment immunity. This dramati-
cally altered the course of the proceedings. The plaintiffs
promptly shifted their attention to Iran, seeking discovery
not just on the three museum collections but on all Iranian
assets in the United States. Since then, the plaintiffs and
Iran have been embroiled in litigation concerning the
proper scope of these discovery requests. The dispute
spawned numerous motions, multiple rulings by the
magistrate judge and the district court, and now this
10 No. 08-2805
appeal. We will not try to provide a complete account of
what transpired below but instead offer the following
summary.
After Iran made its appearance, the plaintiffs served
it with a request for production of documents under
Rule 34 and a notice of deposition under Rule 30(b)(6) of
the Federal Rules of Civil Procedure. The document
request had ten sections. The first nine sought materials
relating to the Persepolis, Chogha Mish, and Herzfeld
Collections. The tenth request was significantly more
ambitious. In relevant part, it demanded that Iran turn
over “[a]ll documents, including without limitation
any communication or correspondence, concerning any
and all tangible and intangible assets, of whatever
nature and kind, in which Iran and/or any of Iran’s agen-
cies and instrumentalities has any legal and/or equitable
interest, that are located within the United States . . . .” The
Rule 30(b)(6) notice sought to depose an officer or agent
designated by Iran to testify on its behalf regarding
its assets in the United States.
Iran sought a protective order shielding it from these
discovery requests and also moved for summary judg-
ment seeking a declaration that the Persepolis, Chogha
Mish, and Herzfeld Collections are immune from execu-
tion and attachment under the FSIA. The plaintiffs coun-
tered with a motion under Rule 56(f) of the Federal
Rules of Civil Procedure requesting additional discovery
before responding to Iran’s summary-judgment motion.
This motion was completely separate from the plaintiffs’
earlier discovery requests under Rules 30(b)(6) and 34,
No. 08-2805 11
but it led to significant confusion regarding which dis-
covery requests were actually on the table. In addition
to the Rule 56(f) motion, the plaintiffs also separately
moved to compel Iran to comply with its previous docu-
ment requests under Rule 34 and its deposition notice
under Rule 30(b)(6).
The magistrate judge eventually granted the plaintiffs’
Rule 56(f) motion for additional discovery. The judge
said the plaintiffs were entitled to the following dis-
covery from Iran: (1) any documents relating to the
three contested collections of Persian artifacts; (2) docu-
ments that might support the plaintiffs’ theory that
the Oriental Institute was effectively Iran’s agent; and
(3) a Rule 30(b)(6) deposition of an officer or agent autho-
rized to testify on Iran’s behalf. The magistrate judge
also granted the plaintiffs’ motion to compel, but only
“[i]nasmuch” as the discovery was necessary for the
plaintiffs to respond to Iran’s request for partial sum-
mary judgment. Iran objected but was overruled by the
district court.
The plaintiffs interpreted these rulings as compelling
Iran to comply in full with all their discovery and deposi-
tion requests under Rules 30(b)(6) and 34. Iran read
the orders much more narrowly and thought it was only
required to produce discovery relating directly to its
motion for summary judgment. In particular the parties
disputed whether Iran was required to provide general-
asset discovery. Iran sought clarification, or in the alter-
native, a protective order. The magistrate judge denied
Iran’s motion for a protective order and explicitly
12 No. 08-2805
ordered general-asset discovery to proceed. The district
judge affirmed, dismissing Iran’s concerns about
sovereign immunity as “overblown.” But the judge was
laboring under a misapprehension; she said the plain-
tiffs were “not seeking general asset discovery about
every conceivable asset of Iran’s in the United States.”
Of course, general-asset discovery was precisely what
the plaintiffs were seeking and indeed what the
magistrate judge had ordered. His order plainly stated
that “Iran will comply with [the plaintiffs’] requests for
general asset discovery[,]” and this holding was the
focal point of Iran’s objection before the district court. In
a motion to reconsider, the plaintiffs noted the district
judge’s error. The judge then acknowledged the over-
sight and issued a one-page order compelling Iran to
submit to the plaintiffs’ requests for general-asset dis-
covery. Iran appealed under the collateral-order doctrine
and also sought review of the district court’s earlier
order declaring that § 1609 sovereign-property
immunity must be asserted by the foreign state itself.
We permitted the museums to intervene on appeal, and
the United States appeared as an amicus in support of
reversal. 5
5
After Iran filed this appeal, another group of judgment
creditors against Iran was granted leave to intervene in the
district court. The lead plaintiff in this group is Deborah
Peterson. After intervening, the Peterson plaintiffs participated
in this appeal. Their presence, however, has no bearing on
the merits of the appeal.
No. 08-2805 13
II. Discussion
A. Appellate Jurisdiction
Before we address the merits, there is a threshold
question about appellate jurisdiction—two questions,
actually, because two interlocutory orders have been
appealed: (1) the district court’s general-asset discovery
order; and (2) the court’s earlier order rejecting § 1609
sovereign-property immunity in the absence of an ap-
pearance by Iran. Jurisdiction over the general-asset
discovery order is a relatively straightforward matter.
The jurisdictional analysis regarding the court’s earlier
order is slightly more complicated.
It is well-established that “as a general rule, an order
authorizing discovery in aid of execution of judgment is
not appealable until the end of the case.” In re Joint E. & S.
Dists. Asbestos Litig., 22 F.3d 755, 760 (7th Cir.
1994). However, the order at issue here invades Iran’s
sovereign immunity, and it is equally well-established
that orders denying claims of immunity may be immedi-
ately appealed under the collateral-order doctrine. Mitchell
v. Forsyth, 472 U.S. 511, 530 (1985); Nixon v. Fitzgerald,
457 U.S. 731, 742-43 (1982); Empress Casino v. Blagojevich,
Nos. 09-3975 & 10-1019, 2011 WL 710467, at *5 (7th
Cir. Mar. 2, 2011). This includes interlocutory orders
denying claims of sovereign immunity under the FSIA.
Rush-Presbyterian-St. Luke’s Med. Ctr. v. Hellenic Republic,
877 F.2d 574, 576 n.2 (7th Cir. 1989); Segni v. Commercial
Office of Spain, 816 F.2d 344, 347 (7th Cir. 1987).
It is true that Segni and Rush Presbyterian concerned a
foreign state’s jurisdictional immunity from suit under
14 No. 08-2805
28 U.S.C. § 1604, not attachment immunity under § 1609.6
But the Fifth Circuit has held that the denial of attach-
ment immunity under § 1609 of the FSIA may be im-
mediately appealed under the collateral-order doctrine,
FG Hemisphere Assocs. v. République du Congo, 455 F.3d
575, 584 (5th Cir. 2006), and we agree with this sensible
conclusion. There is no reason the collateral-order doc-
trine should apply any differently in cases raising the
attachment immunity of foreign-state property under
§ 1609 than in cases raising foreign-state jurisdictional
immunity under § 1604. The FSIA protects foreign sover-
eigns from court intrusions on their immunity in its
various aspects, and interlocutory appeal is appropriate
regardless of which form of immunity is at stake.
Because the district court’s general-asset discovery order
effectively rejected Iran’s claim of attachment immunity
under § 1609, we have jurisdiction to review it under
the collateral-order doctrine.
The question of appellate jurisdiction over the court’s
earlier order is trickier. That order, too, had the effect of
denying a claim of attachment immunity under the FSIA.
The district court held that § 1609 immunity is an af-
firmative defense that can be asserted only by the
6
In full, 28 U.S.C. § 1604 provides:
Subject to existing international agreements to which the
United States is a party at the time of enactment of this Act
a foreign state shall be immune from the jurisdiction of
the courts of the United States and of the States except
as provided in sections 1605 to 1607 of this chapter.
No. 08-2805 15
foreign sovereign itself. Up to that point in the litigation,
the museums were advancing the claim of attachment
immunity, and because Iran had not appeared, the
court’s order effectively stripped the collections of their
statutory immunity. The court’s earlier order thus falls
within the scope of the collateral-order doctrine and
was immediately appealable.
But orders immediately appealable under the collateral-
order doctrine are “final decisions” under 28 U.S.C. § 1291,
and subject to exceptions not applicable here, must be
appealed within 30 days of entry. See F ED . R. A PP. P.
4(a)(1)(A); 28 U.S.C. § 2107(a); Otis v. City of Chicago,
29 F.3d 1159, 1166-67 (7th Cir. 1994) (en banc). Rather
than filing an immediate appeal, the museums asked
the court to certify the order for interlocutory appeal
under § 1292(b). This was unnecessary, for reasons we
will explain in a moment. In the meantime Iran
appeared, becoming the lead defendant, and the focus
shifted to discovery disputes. The § 1292(b) motion ap-
parently got lost in the shuffle. Although the motion
was fully briefed, the district court didn’t address it until
after this appeal was filed; at that point the court simply
dismissed it as moot.
In Weir v. Propst, 915 F.2d 283, 285 (7th Cir. 1990), we
“clarif[ied] the relationship between the collateral-
order doctrine and section 1292(b) certification in the
recurrent setting of appeals from denial of immunity.” We
explained that a § 1292(b) certification is unnecessary
for an appeal under the collateral-order doctrine; orders
denying immunity are “appealable—without any of the
16 No. 08-2805
rigamarole involved in a 1292(b) appeal—under section
1291, by virtue of Mitchell v. Forsyth.” Id. We also said
that a request for § 1292(b) certification “may not be
used to circumvent the time limitations on filing an
appeal under section 1291.” Id. The “deadlines in Rule 4(a)
for appeals in civil cases apply to all appealable orders,
including collateral orders, specifically orders denying
immunity, . . . [and] [i]f the deadline is missed, the order
is not appealable.” Id. at 286. If that occurs, “[t]he defen-
dant must then wait until another appealable order
(normally, the final judgment) is entered, upon appeal
of which he can challenge any interlocutory order that
has not become moot.” Id.
We reiterated this point in Otis, although in some-
what more sweeping terms: “[A] litigant entitled to
appeal under the collateral order doctrine must act
within 30 days and if this time expires without appeal
must wait until the final judgment to pursue the issue.” 29
F.3d at 1167. This passage in Otis relied on Weir and
should be read with the earlier opinion. The failure to
timely appeal an immunity order under the collateral-
order doctrine does not necessarily postpone review
until the end of the case; it postpones review until
another appealable order is entered. This will usually be
the final judgment, but not always. And here, there is
“another appealable order,” Weir, 915 F.2d at 286, not
the final judgment, that has provided the next oppor-
tunity for review. The district court’s general-asset dis-
covery order rejected Iran’s claim of sovereign im-
munity, and Iran’s timely appeal of that order permits
No. 08-2805 17
review of the earlier—and closely related—immunity
decision.7
This conclusion finds support in decisions from the
Third and Fifth Circuits. See In re Montgomery County,
215 F.3d 367, 372 (3d Cir. 2000) (quoting Weir’s state-
ment that when a collateral order is not timely appealed,
“[t]he defendant must then wait until another ap-
pealable order (normally, the final judgment) is entered,
upon appeal of which he can challenge any interlocutory
order that has not become moot”); Kenyatta v. Moore,
744 F.2d 1179, 1186-87 (5th Cir. 1984) (interlocutory
appeal that is not timely pursued can be revived upon
entry of final judgment or some other appealable order);
but cf. Mille Lacs Band of Chippewa Indians v. Minnesota,
48 F.3d 373, 375 (8th Cir. 1995) (deciding not to review
earlier orders of the district court—whether or not they
fell within the collateral-order doctrine—on interlocutory
review of a later injunction because the earlier orders
were not timely appealed and were not inextricably
7
The museums cite United States v. Michelle’s Lounge, 39 F.3d
684 (7th Cir. 1994), as support for the proposition that the
court’s earlier order may be reviewed with Iran’s timely
interlocutory appeal of the later collateral order. But Michelle’s
Lounge simply held that an unappealed collateral order can
be reviewed following the entry of final judgment, id. at 692,
an uncontroversial proposition not at issue in this case.
Michelle’s Lounge does not address the precise question pre-
sented here: Whether a collateral order that is not timely
appealed is revived for review when a timely appeal is taken
from a later collateral order.
18 No. 08-2805
linked to the injunction issue that was properly before
the court).
Moreover, in the particular circumstances of this case,
permitting review of the first immunity order as part of
Iran’s appeal from the second reflects sound appellate
management, not an unwarranted expansion of the
scope of collateral-order review. Both orders raise im-
portant and closely related questions regarding the
scope and operation of the FSIA. Questions of foreign-
sovereign immunity are sensitive, and lower-court mis-
takes about the availability of immunity can have foreign-
policy implications. More particularly here, the district
court’s refusal to consider § 1609 attachment immunity
without an appearance by the foreign state precipitated
Iran’s appearance and led directly to the imposition of
the general-asset discovery order against it. The latter
order was timely appealed, and the two substantially
overlap.8 Review of both orders now will clarify the
rest of the litigation. Iran’s timely appeal of the court’s
general-asset discovery order brings up the court’s
8
Iran’s appearance did not moot the earlier order. Iran entered
the case only because the district court refused to consider the
question of § 1609 immunity unless Iran appeared and raised
it. Iran’s appearance, in turn, exposed it to the general-asset
discovery requests and the court’s order that it comply. Iran
would like to withdraw from this case but is inhibited from
doing so by the district court’s holding that § 1609 attach-
ment immunity must be asserted by the foreign sovereign.
This is a sufficient continuing interest to support an ongoing
live controversy about the court’s earlier order.
No. 08-2805 19
earlier order denying § 1609 attachment immunity
unless Iran appeared.9
B. Attachment Immunity Under § 1609 of the FSIA
On the merits this appeal challenges the district court’s
interpretation of the FSIA. Our review is de novo.
Autotech Techs. LP v. Integral Research & Dev. Corp., 499
F.3d 737, 749 (7th Cir. 2007).
The FSIA was enacted in 1976, but the doctrine of
foreign-sovereign immunity developed at common law
very early in our nation’s history. Samantar v. Yousuf, 130
S. Ct. 2278, 2284 (2010); Republic of the Phillipines v.
9
The Supreme Court’s recent decision in Ortiz v. Jordan, 131
S. Ct. 884 (2011), does not affect our conclusion. The issue in
Ortiz was whether the denial of a motion for summary judg-
ment based on qualified immunity could be appealed
following a full trial on the merits. Id. at 888-89. The
Supreme Court said “no.” Id. at 893. The denial of a motion for
summary judgment based on qualified immunity may be
immediately appealed under Mitchell v. Forsyth, 472 U.S.
511 (1985), subject to the limitations of Johnson v. Jones, 515
U.S. 304 (1995); alternatively, the defense may be renewed
and litigated at trial. The Court held in Ortiz that the failure
to take an immediate appeal of the denial of immunity on
summary judgment precludes review of that order following
a trial on the merits; to obtain review of an immunity claim
in that situation, the defendant must preserve it at trial in a
motion for judgment as a matter of law under Rule 50(b) of
the Federal Rules of Civil Procedure. Ortiz, 131 S. Ct. at 892-93.
20 No. 08-2805
Pimentel, 553 U.S. 851, 865 (2008); Republic of Austria v.
Altmann, 541 U.S. 677, 688-89 (2004). “For more than a
century and a half, the United States generally granted
foreign sovereigns complete immunity from suit in the
courts of this country.” Verlinden B.V. v. Central Bank of
Nigeria, 461 U.S. 480, 486 (1983). Chief Justice Marshall’s
opinion in The Schooner Exchange v. McFaddon, 7 Cranch
116 (1812), articulated the general principle, and “[a]l-
though the narrow holding of The Schooner Exchange
was only that the courts of the United States lack juris-
diction over an armed ship of a foreign state found in
our port, that opinion came to be regarded as extending
virtual absolute immunity to foreign sovereigns.”
Verlinden, 461 U.S. at 486. The doctrine “is premised
upon the ‘perfect equality and absolute independence
of sovereigns, and th[e] common interest in impelling
them to mutual intercourse.’ ” Pimentel, 553 U.S. at 865
(quoting Schooner Exchange, 7 Cranch at 137); see also
Nat’l City Bank of N.Y. v. Republic of China, 348 U.S. 356,
362 (1955) (Foreign-sovereign immunity is based on
“reciprocal self-interest [] and respect for the ‘power
and dignity’ of the foreign sovereign.”).
Foreign-sovereign immunity “is a matter of grace and
comity on the part of the United States,” not a constitu-
tional doctrine. Verlinden, 461 U.S. at 486. Accordingly,
federal courts “consistently . . . deferred to the decisions
of the political branches—in particular, those of the
Executive Branch—on whether to take jurisdiction
over actions against foreign sovereigns and their instru-
mentalities.” Id. Eventually, a “two-step procedure devel-
oped for resolving a foreign state’s claim of sovereign
No. 08-2805 21
immunity, typically asserted on behalf of seized vessels.”
Samantar, 130 S. Ct. at 2284. The diplomatic representa-
tive of the foreign state would request that the State
Department issue a “suggestion of immunity.” Id. If the
State Department did so, the court would surrender
jurisdiction. Id. In the absence of a suggestion of
immunity, however, the court would “ ‘decide for itself
whether the requisites for such immunity existed.’ ” Id.
(quoting Ex parte Republic of Peru, 318 U.S. 578, 587 (1943)).
To make this decision, the court “inquired ‘whether the
ground of immunity is one which it is the established
policy of the [State Department] to recognize.’ ” Id. (quot-
ing Republic of Mexico v. Hoffman, 324 U.S. 30, 36 (1945)).
The process thus entailed substantial judicial deference
to the Executive Branch whether the State Department
issued a suggestion of immunity or not.
In practice the State Department would usually
request immunity in all actions against friendly foreign
sovereigns. Samantar, 130 S. Ct. at 2285; Verlinden, 461 U.S.
at 486. That changed in 1952 when the State Department
adopted a new “restrictive” theory of foreign-sovereign
immunity. Samantar, 130 S. Ct. at 2285; Verlinden, 461 U.S.
at 486. The “Tate Letter” (Jack B. Tate, Acting Legal
Advisor to the Department of State, writing to the
Attorney General) announced that foreign-sovereign
immunity would thenceforward be “confined to suits
involving the foreign sovereign’s public acts, and [would]
not extend to cases arising out of a foreign state’s
strictly commercial acts.” Verlinden, 461 U.S. at 487.
This policy shift was not codified into law, and its
implementation gave rise to some practical and political
22 No. 08-2805
difficulties as the State Department struggled to
maintain a consistent standard for evaluating grants of
immunity for foreign sovereigns. Samantar, 130 S. Ct. at
2285; Altmann, 541 U.S. at 690-91; Verlinden, 461 U.S. at 487.
In 1976 Congress passed the FSIA for the purpose of
providing a clear, uniform set of standards to govern
foreign-sovereign immunity determinations. Under the
FSIA, courts, not the State Department, decide claims of
foreign-sovereign immunity according to the principles
set forth in the statute. See 28 U.S.C. § 1602 (congressional
findings and declaration of purpose); Samantar, 130
S. Ct. at 2285; Altmann, 541 U.S. at 691; Verlinden, 461
U.S. at 487-88.
For the most part, the FSIA codified the restrictive
theory of sovereign immunity announced in the Tate
Letter. Samantar, 130 S. Ct. at 2285; Altmann, 541 U.S. at
691; Verlinden, 461 U.S. at 488. The Act contains two
primary forms of immunity. Section 1604 provides juris-
dictional immunity from suit: “[A] foreign state shall
be immune from the jurisdiction of the courts of the
United States and of the States” except as otherwise
provided in the Act. 28 U.S.C. § 1604. Section § 1609,
the provision at issue here, codifies the related common-
law principle that a foreign state’s property in the
United States is immune from attachment and execution:
Subject to existing international agreements to which
the United States is a party at the time of enactment of
this Act the property in the United States of a foreign state
shall be immune from attachment arrest and execution
except as provided in sections 1610 and 1611 of this chapter.
No. 08-2805 23
Id. § 1609 (emphasis added). The term “foreign state”
includes “a political subdivision of a foreign state or an
agency or instrumentality of a foreign state.” Id. § 1603(a).
In keeping with the restrictive theory of foreign-sover-
eign immunity, the FSIA carves out certain exceptions
to the jurisdictional immunity of foreign states described
in § 1604 (see §§ 1605-1607) and the immunity of foreign-
state property from attachment and execution described
in § 1609 (see §§ 1610, 1611). Accordingly, under § 1604
foreign states and their agencies and instrumentalities
are immune from suit unless statutory exception ap-
plies. Under § 1609 foreign-state property in the United
States is likewise immune from attachment or execu-
tion unless an exception applies. Under the exceptions
listed in §§ 1610 and 1611, property owned by a foreign
state’s instrumentalities is generally more amenable to
attachment than property owned by the foreign state
itself. See id. § 1610(a) (exceptions applicable to foreign-
state property), (b) (exceptions applicable to foreign-
instrumentality property); see also R ESTATEMENT (T HIRD )
OF THE F OREIGN R ELATIONS L AW OF THE U.S. § 460 cmt. b.
In their underlying suit against Iran, the plaintiffs
established jurisdiction via § 1605(a)(7), an exception to
jurisdictional sovereign immunity for actions “in which
money damages are sought against a foreign state for
personal injury or death that was caused by an act of
torture, extrajudicial killing, aircraft sabotage, hostage
taking, or the provision of material support or resources . . .
for such an act.” 28 U.S.C. § 1605(a)(7) (repealed and
reenacted as § 1605A(a)(1), Pub. L. No. 110-181, Div. A,
24 No. 08-2805
Title X, § 1083(a)(1), (b)(1)(A)(iii), Jan. 28, 2008, 122 Stat.
338, 341). In the execution proceeding, they relied on the
following exception to § 1609 attachment immunity:
(a) The property in the United States of a foreign
state . . . used for a commercial activity in the United
States, shall not be immune from attachment in aid
of execution, or from execution, upon a judgment
entered by a court of the United States or of a State . . .
if—
(7) the judgment relates to a claim for which the
foreign state is not immune under section 1605A,
regardless of whether the property is or was in-
volved with the act upon which the claim is based.
Id. § 1610(a)(7). They also claimed that Iran’s assets are
attachable under § 201 of the TRIA as “blocked assets”
of a terrorist party. Pub. L. No. 107-297, Title II, § 201(a),
116 Stat. 2322, 2337 (2002).
The district court did not address the applicability of
either of these exceptions. Instead, the court held that
the attachment immunity conferred by § 1609 is per-
sonal to the foreign state, which must appear and af-
firmatively plead it. When Iran made its appearance
and specifically raised § 1609, the court continued to
sidestep the immunity question and instead ordered
general-asset discovery regarding all of Iran’s assets in
the United States, not just the three museum collections
the plaintiffs identified in the attachment citations. Both
of these orders are incompatible with the text, structure,
and history of the FSIA, and also conflict with relevant
precedent. We address the second order first.
No. 08-2805 25
1. The general-asset discovery order
Execution proceedings are governed by Rule 69(a) of the
Federal Rules of Civil Procedure and “must accord with
the procedure of the state where the court is located, but
a federal statute governs to the extent it applies.” FED. R.
C IV . P. 69(a)(1). Discovery requests in aid of execution
may be made pursuant to either the federal rules or the
corresponding rules of the forum state, id. Rule 69(a)(2),
but either way, the FSIA plainly applies and limits
the discovery process.
As a general matter, it is widely recognized that the
FSIA’s immunity provisions aim to protect foreign sover-
eigns from the burdens of litigation, including the cost
and aggravation of discovery. See Pimentel, 553 U.S. at 865;
Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003); Rush-
Presbyterian, 877 F.2d at 576 n.2; Kelly v. Syria Shell Petro-
leum Dev. B.V., 213 F.3d 841, 849 (5th Cir. 2000); Foremost-
McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 449
(D.C. Cir. 1990). This is consistent with the Supreme
Court’s treatment of other immunities—for example, the
qualified immunity of governmental officials. See, e.g.,
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (“The basic
thrust of the qualified-immunity doctrine is to free
officials from the concerns of litigation, including avoid-
ance of disruptive discovery.” (quotation marks omit-
ted)). A potential difficulty arises, however, when an
asserted exception to immunity turns on disputed facts.
The FSIA does not directly address the extent to which
a judgment creditor may pursue discovery to establish
that the property he is seeking to attach fits within one
26 No. 08-2805
of the statutory exceptions to the attachment immunity
conferred by § 1609.1 0
In Arriba Ltd. v. Petroleos Mexicanos, the Fifth Circuit
aptly took note of the “tension between permitting dis-
covery to substantiate exceptions to statutory foreign
sovereign immunity and protecting a sovereign’s or
sovereign agency’s legitimate claim to immunity from
discovery.” 962 F.2d 528, 534 (5th Cir. 1992). Arriba in-
volved § 1604 jurisdictional immunity, but the same
tension is present when attachment immunity under
§ 1609 is at stake. The district court’s decision to order
nationwide discovery of all Iranian assets fails to ap-
preciate this basic point. That much is evident in the
magistrate judge’s rationale for the discovery order:
By inquiring about Iran’s assets generally, the Plain-
tiffs, and ultimately the Court, will be able to deter-
mine which of those assets fall within the domain
of assets that are amenable to attachment and execu-
tion under the FSIA and TRIA. The Court will
not limit the Plaintiffs’ discovery requests to those
categories of assets that are reachable under the
FSIA and TRIA, allowing Iran to be the judge of which
assets are immune before providing any discovery.
10
The only section in the FSIA that directly addresses dis-
covery is 28 U.S.C. § 1605(g). That provision allows the
Attorney General, under certain circumstances, to stay any
request for discovery against the United States in any
action brought against a foreign state on the basis of the
“terrorism” exception to § 1604, as defined in § 1605(a)(7).
No. 08-2805 27
That determination goes to the merits of the case
and will be made by the Court alone.
Rubin v. Islamic Republic of Iran, No. 03 C 9370, 2008 WL
192321, at *15 (N.D. Ill. Jan. 18, 2008). The district judge
adopted this reasoning in toto.
This approach is inconsistent with the presumptive
immunity of foreign-state property under § 1609. As a
historical matter, “[p]rior to the enactment of the FSIA, the
United States gave absolute immunity to foreign sover-
eigns from the execution of judgments. This rule
required plaintiffs who successfully obtained a judg-
ment against a foreign sovereign to rely on voluntary
repayment by that State.” Autotech, 499 F.3d at 749. The
FSIA “codified this practice by establishing a general
principle of immunity for foreign sovereigns from ex-
ecution of judgments,” subject to certain limited excep-
tions. Id. The statutory scheme thus “modified the rule
barring execution against a foreign state’s property by
‘partially lowering the barrier of immunity from execu-
tion, so as to make this immunity conform more closely
with the provisions on jurisdictional immunity.’ ” Id.
(second emphasis omitted) (quoting Conn. Bank of Com-
merce v. Republic of Congo, 309 F.3d 240, 252 (5th Cir. 2002)).
Importantly here, the exceptions to attachment
immunity are narrower than the exceptions to jurisdic-
tional immunity: “Although there is some overlap
between the exceptions to jurisdictional immunity and
those for immunity from execution and attachment,
there is no escaping the fact that the latter are more
narrowly drawn.” Id. We noted in Autotech that “[t]he
28 No. 08-2805
FSIA says that immunity from execution is waived only
for specific ‘property.’ As a result, in order to determine
whether immunity from execution or attachment
has been waived, the plaintiff must identify specific
property upon which it is trying to act.” Id. at 750. Under
the FSIA “[t]he only way the court can decide whether
it is proper to issue the writ [of attachment or execution]
is if it knows which property is targeted.” Id. In other
words, “[a] court cannot give a party a blank check
when a foreign sovereign is involved.” Id.
As our discussion in Autotech makes clear, § 1609 of the
FSIA codifies the common-law rule that property of a
foreign state in the United States is presumed immune
from attachment and execution. To overcome the pre-
sumption of immunity, the plaintiff must identify the
particular foreign-state property he seeks to attach and
then establish that it falls within a statutory exception.
The district court’s general-asset discovery order turns
this presumptive immunity on its head. Instead of con-
fining the proceedings to the specific property the plain-
tiffs had identified as potentially subject to an exception
under the FSIA, the court gave the plaintiffs a “blank
check” entitlement to discovery regarding all Iranian
assets in the United States. This inverts the statutory
scheme.
Three other circuits have addressed the question of
discovery in the context of attachment proceedings
against foreign-state property in the United States under
the FSIA, and all have agreed that the court must
proceed narrowly, in a manner that respects the statutory
No. 08-2805 29
presumption of immunity and focuses on the specific
property alleged to be exempt. The Second, Fifth, and
Ninth Circuits have repeated an identical message to
the district courts: “ ‘[D]iscovery should be ordered cir-
cumspectly and only to verify allegations of specific facts
crucial to an immunity determination.’ ” EM Ltd. v.
Republic of Argentina, 473 F.3d 463, 486 (2d Cir. 2007)
(quoting First City, Texas-Houston, N.A. v. Rafidain Bank,
150 F.3d 172, 176 (2d Cir. 1998)); Conn. Bank of Commerce,
309 F.3d at 260 n.10 (quoting Arriba, 962 F.2d at 534); Af-
Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080,
1095-96 (9th Cir. 2007) (emphasis omitted) (quoting
Conn. Bank of Commerce, 309 F.3d at 260 n.10).1 1 We agree.
Discovery orders that are broad in scope and thin in
foundation unjustifiably subject foreign states to unwar-
ranted litigation costs and intrusive inquiries about
their American-based assets. One of the purposes of the
immunity codified in § 1609 is to shield foreign states
from these burdens.
The plaintiffs note that these decisions from other
circuits took language from Arriba, 962 F.2d at 534, the
Fifth Circuit case dealing with exceptions to § 1604 juris-
dictional immunity, and adapted it to the context of attach-
ment immunity under § 1609. They claim that broader
11
In Af-Cap the district court had limited discovery on
grounds unrelated to the FSIA. The Ninth Circuit affirmed and
also concluded that the discovery limitations were consistent
with the requirements of the FSIA. Af-Cap, Inc. v. Chevron
Overseas (Congo) Ltd., 475 F.3d 1080, 1096 (9th Cir. 2007).
30 No. 08-2805
discovery should be available under § 1609 than § 1604.
This argument is based on their reading of § 1606 of
the FSIA, which provides that if an exception to § 1604
jurisdictional immunity applies, “the foreign state shall
be liable in the same manner and to the same extent as
a private individual under like circumstances.” 28 U.S.C.
§ 1606. The plaintiffs contend that once a court has exer-
cised jurisdiction over a foreign sovereign and entered
a judgment against it, § 1606 entitles them to the same
broad discovery as any other litigant seeking to execute
on a judgment under Rule 69(a). The critical error in
this argument is that it mixes the scope of liability with the
scope of execution. Although Iran may be found liable
in the same manner as any other private defendant, the
options for executing a judgment remain limited. That
is the point of § 1609. It is true that §§ 1604 and 1609
provide different kinds of immunity to foreign sovereigns,
but there is no reason to read § 1609 to allow for more
intrusive discovery than its § 1604 counterpart. To the
contrary, as we observed in Autotech, the exceptions to
§ 1609 attachment immunity are drawn more narrowly
than the exceptions to § 1604 jurisdictional immunity.
The plaintiffs cite two cases as support for the general-
asset discovery order. The first is Richmark Corp. v. Timber
Falling Consultants, 959 F.2d 1468 (9th Cir. 1992),
which involved a contract dispute between an American
company and Beijing Ever Bright Industrial Co., a
company controlled by the People’s Republic of China.
The American company won a default judgment against
Ever Bright on a breach-of-contract claim and then
sought general discovery in order to identify Ever
No. 08-2805 31
Bright’s assets; the district court authorized the discovery.
Ever Bright appealed and the Ninth Circuit affirmed.
Richmark is distinguishable from this case. Ever Bright
was an instrumentality of the People’s Republic of
China, and the discovery order at issue in Richmark was
limited to Ever Bright’s assets. As we have noted, the
immunity exceptions in the FSIA for property owned by
an instrumentality of a foreign state are much broader
than the exceptions for property owned by the foreign
state itself.12 See 28 U.S.C. § 1610(a) (exceptions to immu-
nity of foreign-state property), 1610(b) (exceptions to
immunity for foreign-instrumentality property); see also
Autotech, 499 F.3d at 749-50. Even so, we held in
Autotech that a judgment creditor seeking to invoke an
exception to § 1609 immunity must first identify the
property on which it seeks to execute. Id.
12
The commercial-activity exception in § 1610(b) allows a
judgment creditor to execute against any property of an agency
or instrumentality of a foreign state in the United States so
long as the agency or instrumentality has been found to have
engaged in commercial activity. On the other hand, § 1610(a),
the FSIA exception invoked in this case, allows execution
against the property of a foreign state in the United States
only if that property has been used for commercial activity. See
Autotech Techs. LP v. Integral Research & Dev. Corp., 499 F.3d
737, 749-50 (7th Cir. 2007); R ESTATEMENT (T HIRD ) OF THE
F OREIGN R ELATIONS L AW OF THE U.S. § 460 cmt. b (“For pur-
poses of post-judgment attachment and execution, the [FSIA]
draws a sharp distinction between the property of states and
the property of state instrumentalities . . . .”).
32 No. 08-2805
The plaintiffs also cite First City, Texas-Houston, N.A. v.
Rafidain Bank, 150 F.3d 172, 177 (2d Cir. 1998), which
affirmed an order permitting a judgment creditor to
conduct general discovery against Rafidain Bank, an
instrumentality of Iraq. Rafidain Bank is also distinguish-
able; as in Richmark the order in question authorized
general discovery against an instrumentality of a foreign
sovereign, not the foreign sovereign itself. Equally im-
portant, the Second Circuit authorized broad discovery
so that the judgment creditor would have an oppor-
tunity to substantiate its claim that the defendant instru-
mentality of Iraq was the alter ego of the Central Bank
of Iraq—a claim that if proven would have allowed
the judgment creditor to pursue the assets of the
Central Bank. Neither Richmark nor Rafidain Bank
provide support for the discovery order in this case.1 3
Finally, the plaintiffs lodge a policy objection to re-
stricting discovery to the particular foreign-state
property sought to be attached. They maintain that
limiting discovery in this way would effectively deny
judgment creditors the opportunity to locate potentially
13
The Restatement of Foreign Relations explains that the FSIA
provides weaker immunity protection for the property of
foreign-state instrumentalities because “instrumentalities
engaged in commercial activities are akin to commercial
enterprises.” R ESTATEMENT (T HIRD ) OF THE L AW OF F OREIGN
R ELATIONS OF THE U.S. § 460 cmt. b. But because “the primary
function of [foreign] states is government . . . , their amenability
to post-judgment attachment should be limited to particular
property.” Id.
No. 08-2805 33
attachable assets of the foreign state. This contention
merits several responses.
First, it is an exaggeration to suggest that limiting
discovery to the specific property identified for attach-
ment completely forecloses the opportunity of judgment
creditors to discover any attachable assets of the foreign-
state judgment debtor. Targeted discovery regarding
specifically identified assets may prove fruitful, and the
plaintiff may in the end be permitted to execute on the
specified property. It is true that limiting discovery to
the specific property identified for attachment restricts
the plaintiff’s ability to use the coercive power of the
court to identify other attachable foreign-state assets, but
that is a consequence of the balance struck by the FSIA.
Nothing in the statutory scheme prevents judgment
creditors from using private means to identify potentially
attachable assets of foreign states located in the United
States. Moreover, the FSIA includes a provision for judg-
ment creditors in certain cases to enlist the assistance of
the Secretary of the Treasury and the Secretary of State
in identifying and executing against the assets of a
foreign sovereign. Section 1610(f)(2)(A) provides:
At the request of any party in whose favor a judg-
ment has been issued with respect to a claim for
which the foreign state is not immune under section
1605(a)(7) (as in effect before the enactment of section
1605A [enacted Jan. 28, 2008]) or section 1605A, the
Secretary of the Treasury and the Secretary of State
should make every effort to fully, promptly, and effectively
assist any judgment creditor or any court that has issued
34 No. 08-2805
any such judgment in identifying, locating, and executing
against the property of that foreign state or any agency
or instrumentality of such state.
(Emphasis added.) The plaintiffs secured their judgment
against Iran under § 1605(a)(7) and thus are eligible for
this assistance from the United States.
There is no question that the attachment immunity
codified in § 1609 of the FSIA has a cost, and that
cost is borne primarily by Americans who have been
injured in tort or contract by foreign states or their
agencies or instrumentalities. The FSIA embodies a judg-
ment that our nation’s foreign-policy interests justify
this particular allocation of legal burdens and benefits.
Accordingly, we conclude that under the FSIA a
plaintiff seeking to attach the property of a foreign state
in the United States must identify the specific property
that is subject to attachment and plausibly allege that
an exception to § 1609 attachment immunity applies. If
the plaintiff does so, discovery in aid of execution is
limited to the specific property the plaintiff has identi-
fied. The general-asset discovery order issued in this
case is incompatible with the FSIA.1 4
2. The appearance order
The foregoing discussion also highlights the flaws in
the district court’s earlier order in which the court
14
In light of this holding, we need not consider Iran’s alterna-
tive argument that the general-asset discovery order violates
the Algiers Accords, 20 I.L.M. 224 (1981).
No. 08-2805 35
held that attachment immunity under § 1609 is an af-
firmative defense that can only be asserted by the
foreign state itself. This ruling fails to give effect to the
statutory text: “[T]he property in the United States of a
foreign state shall be immune from attachment arrest
and execution except as provided in sections 1610 and
1611 of this chapter.” 28 U.S.C. § 1609 (emphasis added).
As we have explained, the statute cloaks the foreign
sovereign’s property with a presumption of immunity
from attachment and execution unless an exception
applies; under § 1609 the property is protected by
immunity and may not be attached absent proof of an
exception. It follows from this language that the
immunity does not depend on the foreign state’s appear-
ance in the case. The immunity inheres in the property
itself, and the court must address it regardless of
whether the foreign state appears and asserts it.
Again, we can find helpful analogous principles in
the operation of § 1604 jurisdictional immunity. The
Supreme Court has confirmed that the FSIA’s immunity
from suit arises presumptively, and “even if the foreign
state does not enter an appearance to assert an im-
munity defense, a District Court still must determine
that immunity is unavailable under the Act.” Verlinden,
461 U.S. at 493-94 & n.20.1 5 This conclusion is unsur-
15
The district court justified its appearance ruling almost
entirely on an out-of-context reading of a sliver of FSIA legisla-
tive history that appears in this footnote in the Court’s opinion
in Verlinden. Just before the sentence we have quoted above, the
Court notes that “[t]he House Report on the [FSIA] states that
(continued...)
36 No. 08-2805
prising; the immunity conferred by § 1604 is jurisdic-
tional. The Court in Verlinden read § 1604 together with
a separate provision of the FSIA, codified at 28 U.S.C.
§ 1330(a), which provides:
The district courts shall have original jurisdiction . . . of
any . . . action against a foreign state as defined
in section 1603(a) of this title as to any claim for
relief . . . to which the foreign state is not entitled to
immunity either under sections 1605-1607 of this
title or any applicable international agreement.
28 U.S.C. § 1330(a); Verlinden, 461 U.S. at 493-94.1 6
15
(...continued)
‘sovereign immunity is an affirmative defense that must be
specially pleaded.’ ” Verlinden B.V. v. Central Bank of Nigeria, 461
U.S. 480, 493 n.20 (1983) (quoting H.R. Rep. No. 94-1487, at 17
(1976)). But immediately after this reference, the Court says
quite clearly that the House Report got this point wrong: “Under
the Act, however, subject matter jurisdiction turns on the
existence of an exception to foreign sovereign immunity, 28
U.S.C. § 1330(a). Accordingly, even if the foreign state does
not enter an appearance to assert an immunity defense, a
District Court still must determine that immunity is unavail-
able under the Act.” Id. This footnote, read as a whole, does not
support the district court’s order. In a bit of charitable under-
statement, we have previously characterized this passage
of FSIA legislative history as “not entirely accurate.” Frovola
v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir.
1985).
16
A complication arises when a foreign-state instrumentality
has a questionable claim to jurisdictional immunity. See, e.g.,
(continued...)
No. 08-2805 37
Though not jurisdictional, the immunity conferred by
§ 1609 is similarly a default presumption, one that
inheres in the property of the foreign state. When a judg-
ment creditor seeks to attach property to satisfy a judg-
ment obtained under the FSIA, the district court is im-
mediately on notice that the immunity protections of
§ 1609 are in play. In particular, where the plaintiff seeks
to attach property of the foreign state itself, immunity is
presumed and the court must find an exception—with
or without an appearance by the foreign state—not as a
jurisdictional matter but to give effect to the statutory
scheme. See R ESTATEMENT (T HIRD ) OF THE F OREIGN R E-
LATIONS L AW OF THE U.S. § 460 cmt. b (explaining
the distinction in the FSIA between the property of
foreign states and the property of foreign-state instru-
mentalities).
16
(...continued)
Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, 32 F.2d 195
(2d Cir. 1929) (The plaintiff, apparently a private corporation,
was served with a counterclaim and then attempted to
invoke foreign-sovereign immunity by claiming it was an
instrumentality of Sweden.). In this situation, we have held
that before a foreign instrumentality may be entitled to the
presumption of immunity under § 1604, it must establish a
prima facie case that it fits the FSIA’s definition of a foreign
state. See, e.g., Enahoro v. Abubakar, 408 F.3d 877, 882 (7th Cir.
2005). However, when the plaintiff sues the foreign sovereign
itself, the immunity issue is uncomplicated; immunity is
presumed, and the court must find an exception with or with-
out an appearance by the foreign state.
38 No. 08-2805
This reading of § 1609 is confirmed by several pro-
visions in § 1610 governing exceptions to attachment
immunity. For example, § 1610(a)(1) states that § 1609
immunity does not apply where “the foreign state has
waived its immunity from attachment in aid of execu-
tion or from execution either explicitly or by implication.”
This strongly suggests that immunity from execution
is presumed and waiver of immunity is the excep-
tion.17 Section 1610(c) is even more telling. That pro-
vision governs the issuance of an attachment order
under either § 1610(a) or (b) when the foreign state is
in default:
No attachment or execution referred to in subsec-
tions (a) and (b) of this section shall be permitted
until the court has ordered such attachment and
execution after having determined that a reasonable
period of time has elapsed following the entry of
judgment and the giving of any notice required
under section 1608(e) of this chapter [governing
service, time to answer, and default].
28 U.S.C. § 1610 (c). The waiting period required by
§ 1610(c) ensures that a defaulting foreign state is pro-
vided adequate notice before an attachment order
issued under either § 1610(a) or (b)—the “commercial”
exceptions to § 1609 immunity—will take effect. This
17
We have previously rejected the notion that a foreign state’s
failure to make an appearance before the court could
itself constitute an implicit waiver of sovereign immunity. See
Frolova, 761 F.2d at 378.
No. 08-2805 39
provision makes it clear that even when the foreign
state fails to appear in the execution proceeding, the
court must determine that the property sought to be
attached is excepted from immunity under § 1610(a) or
(b) before it can order attachment or execution.
Our conclusion that the court must address § 1609
immunity even in the absence of an appearance by the
foreign state is also consistent with the common-law
practice that the FSIA codified. As we have explained,
the attachment immunity of foreign-state property, like
the jurisdictional immunity of foreign states, was histori-
cally determined without regard to the foreign state’s
appearance in the case. The court either deferred to the
State Department’s suggestion of immunity or made the
immunity determination itself, by reference to the State
Department’s established policy regarding foreign-sover-
eign immunity. See Republic of Mexico v. Hoffman, 324
U.S. 30, 35-36 (1945) (common-law doctrine of foreign-
sovereign immunity required judicial deference to ex-
ecutive determinations of immunity because “[t]he
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”). This practice continued after
the issuance of the Tate Letter and the State Depart-
ment’s shift to the restrictive theory of foreign-sovereign
immunity.
To date, two circuits have addressed whether the
foreign state must appear and assert § 1609 attachment
immunity, and both have concluded that the answer is
“no.” In the most recent case, the Peterson plaintiffs (who
40 No. 08-2805
have intervened here) sought to execute their judgment
against certain Iranian receivables; the Ninth Circuit
concluded that the district court must independently
raise and decide whether the property is immune from
attachment under § 1609. Peterson v. Islamic Republic of
Iran, 627 F.3d 1117, 1126-28 (9th Cir. 2010). Similarly, the
Fifth Circuit has held that “the [foreign state’s] presence
is irrelevant” to the question whether the property
the plaintiff seeks to attach is excepted from § 1609’s
presumptive immunity. Walker Int’l Holdings Ltd. v. Re-
public of Congo, 395 F.3d 229, 233 (5th Cir. 2004). A district
court in Massachusetts also agrees. See Rubin v. Islamic
Republic of Iran, 456 F. Supp. 2d 228, 231-32 (D. Mass.
2006) (execution proceeding brought by the Rubin plain-
tiffs to attach property in the possession of a museum
at Harvard University but alleged to belong to Iran).
We now join these courts in concluding that under § 1609
of the FSIA, the property of a foreign state in the
United States is presumed immune from attachment
and execution. The immunity inheres in the property
and does not depend on an appearance and special plead-
ing by the foreign state itself. The party in possession of
the property may raise the immunity or the court may
address it sua sponte. Either way, the court must inde-
pendently satisfy itself that an exception to § 1609 im-
munity applies before ordering attachment or other
execution on foreign-state property in the United States.
For the foregoing reasons, we R EVERSE the district
court’s general-asset discovery order and its earlier
order requiring Iran to appear and affirmatively plead
No. 08-2805 41
§ 1609 immunity, and R EMAND for further proceedings
consistent with this opinion.
3-29-11