Rubin v. Islamic Republic of Iran , 200 L. Ed. 2d 58 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
RUBIN ET AL. v. ISLAMIC REPUBLIC OF IRAN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 16–534. Argued December 4, 2017—Decided February 21, 2018
The Foreign Sovereign Immunities Act of 1976 (FSIA) grants foreign
states and their agencies and instrumentalities immunity from suit
in the United States and grants their property immunity from at-
tachment and execution in satisfaction of judgments against them,
see 28 U.S. C. §§1604, 1609, but with some exceptions. Petitioners
hold a judgment against respondent Islamic Republic of Iran pursu-
ant to an exception that applies to foreign states designated as state
sponsors of terrorism with respect to claims arising out of acts of ter-
rorism. See §1605A. To enforce that judgment, petitioners filed an
action in the District Court to attach and execute against certain Ira-
nian assets—a collection of ancient clay tablets and fragments
housed at respondent University of Chicago. The District Court con-
cluded that §1610(g)—which provides that certain property will be
“subject to attachment in aid of execution, and execution, upon [a
§1605A] judgment as provided in this section”—does not deprive the
collection of the immunity typically afforded the property of a foreign
sovereign. The Seventh Circuit affirmed.
Held: Section 1610(g) does not provide a freestanding basis for parties
holding a judgment under §1605A to attach and execute against the
property of a foreign state; rather, for §1610(g) to apply, the immuni-
ty of the property at issue must be rescinded under a separate provi-
sion within §1610. Pp. 4–15.
(a) Congress enacted the FSIA in an effort to codify the careful bal-
ance between respecting the immunity historically afforded to foreign
sovereigns and holding them accountable, in certain circumstances,
for their actions. As a default, foreign states have immunity “from
the jurisdiction of the courts of the United States and of the States,”
§1604, but there are express exceptions, including the one at issue
2 RUBIN v. ISLAMIC REPUBLIC OF IRAN
Syllabus
here, for state sponsors of terrorism, see §1605A(a). The FSIA simi-
larly provides as a default that “the property in the United States of
a foreign state shall be immune from attachment arrest and execu-
tion.” §1609. But §1610 outlines certain exceptions to this immuni-
ty. For example, §1610(a)(7) provides that property in the United
States of a foreign state that is used for a commercial activity in the
United States shall not be immune from attachment and execution
where the plaintiff holds a §1605A judgment against the foreign
state. Before 2008, the FSIA did not expressly address under which
circumstances a foreign state’s agencies or instrumentalities could be
held liable for judgments against the state. The Court had addressed
that question in First Nat. City Bank v. Banco Para el Comercio Exte-
rior de Cuba, 462 U.S. 611, 628 (Bancec), and held that, as a default,
agencies and instrumentalities of a foreign state are separate legal
entities that cannot be held liable. It recognized the availability of
exceptions, however, and left the lower courts to determine whether
an exception applied on a case-by-case basis. The lower courts coa-
lesced around five relevant factors (the Bancec factors) to assist in
those determinations. In 2008, Congress amended the FSIA, adding
§1610(g). Subparagraphs (A) through (E) incorporate almost verba-
tim the Bancec factors, leaving no dispute that, at a minimum,
§1610(g) serves to abrogate Bancec where a §1605A judgment holder
seeks to satisfy a judgment held against the foreign state. The ques-
tion here is whether, in addition to abrogating Bancec, it provides a
freestanding exception to property immunity in the context of a
§1605A judgment. Pp. 4–8.
(b) The most natural reading of §1610(g)(1)’s phrase “as provided in
this section” is that it refers to §1610 as a whole, so that §1610(g)(1)
will apply to property that is exempted from the grant of immunity as
provided elsewhere in §1610. Those §1610 provisions that do unam-
biguously revoke the immunity of a foreign state’s property employ
phrases such as “shall not be immune,” see §1610(a)(7), and
“[n]otwithstanding any other provision of law,” see §1610(f)(1)(A).
Such textual markers are conspicuously absent from §1610(g). Thus,
its phrase “as provided in this section” is best read to signal only that
a judgment holder seeking to take advantage of §1610(g)(1) must
identify a basis under one of §1610’s express immunity-abrogating
provisions to attach and execute against a relevant property. This
reading provides relief to judgment holders who previously would not
have been able to attach and execute against property of an agency or
instrumentality of a foreign state in light of Bancec. It is also con-
sistent with the basic interpretive canon to construe a statute so as to
give effect to all of its provisions, see Corley v. United States, 556
U.S. 303, 314, and with the historical practice of rescinding attach-
Cite as: 583 U. S. ____ (2018) 3
Syllabus
ment and execution immunity primarily in the context of a foreign
state’s commercial acts, see Verlinden B. V. v. Central Bank of Nige-
ria, 461 U.S. 480, 487–488. Pp. 8–11.
(c) Petitioners’ counterarguments are unpersuasive. They assert
that the phrase “as provided in this section” might refer to the proce-
dures in §1610(f)(1), which permits §1605A judgment holders to at-
tach and execute against property associated with certain prohibited
financial transactions, but which was waived by the President before
it could take effect. However, it is not logical to read the phrase as
indicating a congressional intent to create §1610(g) as an alternative
to §1610(f)(1), particularly since Congress knows how to make clear
when it is rescinding immunity. Nor could Congress have intended
“as provided in this section” to refer only to §1610(f)(2)’s instruction
that the Federal Government assist in identifying assets, since that
provision does not provide for attachment or execution at all. Finally,
there is no basis to conclude that “this section” in §1610(g) reflects a
mere drafting error.
The words “property of a foreign state,” which appear in the first
substantive clause of §1610(g), are not rendered superfluous under
the Court’s reading. Section 1610(g) serves to identify in one place
all the categories of property that will be available to §1605A judg-
ment holders for attachment and execution, and commands that the
availability of such property will not be limited by the Bancec factors.
Also, without the opening clause, §1610(g) would abrogate the Bancec
presumption of separateness in all cases, not just those involving ter-
rorism judgments under §1605A. Although petitioners contend that
any uncertainty in §1610(g) should be resolved by giving full effect to
the legislative purpose behind its enactment—removing obstacles to
enforcing terrorism judgments—they offer no real support for their
position that §1610(g) was intended to divest all property of a foreign
state or its agencies or instrumentalities of immunity. Bank Markazi
v. Peterson, 578 U. S. ___, ___, n. 2, distinguished. Pp. 12–15.
830 F.3d 470, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which all other
Members joined, except KAGAN, J., who took no part in the considera-
tion or decision of the case.
Cite as: 583 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–534
_________________
JENNY RUBIN, ET AL., PETITIONERS v. ISLAMIC
REPUBLIC OF IRAN, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[February 21, 2018]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
The Foreign Sovereign Immunities Act of 1976 (FSIA)
grants foreign states and their agencies and instrumental-
ities immunity from suit in the United States (called
jurisdictional immunity) and grants their property im-
munity from attachment and execution in satisfaction of
judgments against them. See 28 U.S. C. §§1604, 1609.
But those grants of immunity are subject to exception.
Petitioners hold a judgment against respondent Islamic
Republic of Iran pursuant to one such exception to juris-
dictional immunity, which applies where the foreign state
is designated as a state sponsor of terrorism and the
claims arise out of acts of terrorism. See §1605A. The
issue presented in this case is whether certain property of
Iran, specifically, a collection of antiquities owned by Iran
but in the possession of respondent University of Chicago,
is subject to attachment and execution by petitioners in
satisfaction of that judgment. Petitioners contend that the
property is stripped of its immunity by another provision
of the FSIA, §1610(g), which they maintain provides a
blanket exception to the immunity typically afforded to
2 RUBIN v. ISLAMIC REPUBLIC OF IRAN
Opinion of the Court
the property of a foreign state where the party seeking to
attach and execute holds a §1605A judgment.
We disagree. Section 1610(g) serves to identify property
that will be available for attachment and execution in
satisfaction of a §1605A judgment, but it does not in itself
divest property of immunity. Rather, the provision’s
language “as provided in this section” shows that §1610(g)
operates only when the property at issue is exempt from
immunity as provided elsewhere in §1610. Petitioners
cannot invoke §1610(g) to attach and execute against the
antiquities at issue here, which petitioners have not estab-
lished are exempt from immunity under any other provi-
sion in §1610.
I
A
On September 4, 1997, Hamas carried out three suicide
bombings on a crowded pedestrian mall in Jerusalem,
resulting in the deaths of 5 people and injuring nearly 200
others. Petitioners are United States citizens who were
either wounded in the attack or are the close relatives of
those who were injured. In an attempt to recover for their
harm, petitioners sued Iran in the District Court for the
District of Columbia, alleging that Iran was responsible
for the bombing because it provided material support and
training to Hamas. At the time of that action, Iran was
subject to the jurisdiction of the federal courts pursuant to
28 U.S. C. §1605(a)(7) (1994 ed., Supp. II), which rescinded
the immunity of foreign states designated as state spon-
sors of terrorism with respect to claims arising out of acts
of terrorism. Iran did not appear in the action, and the
District Court entered a default judgment in favor of
petitioners in the amount of $71.5 million.1
——————
1 Congress amended the FSIA in 2008 and replaced 28 U.S. C.
§1605(a)(7) with a separate, more expansive provision addressing the
foreign sovereign immunity of foreign states that are designated as
Cite as: 583 U. S. ____ (2018) 3
Opinion of the Court
When Iran did not pay the judgment, petitioners
brought this action in the District Court for the Northern
District of Illinois to attach and execute against certain
Iranian assets located in the United States in satisfaction
of their judgment. Those assets—a collection of approxi-
mately 30,000 clay tablets and fragments containing
ancient writings, known as the Persepolis Collection—are
in the possession of the University of Chicago, housed at
its Oriental Institute. University archeologists recovered
the artifacts during an excavation of the old city of Per-
sepolis in the 1930’s. In 1937, Iran loaned the collection
to the Oriental Institute for research, translation, and
cataloging.2
Petitioners maintained in the District Court, inter alia,
that §1610(g) of the FSIA renders the Persepolis Collec-
tion subject to attachment and execution. The District
Court concluded otherwise and held that §1610(g) does not
deprive the Persepolis Collection of the immunity typically
afforded the property of a foreign sovereign. The Court of
Appeals for the Seventh Circuit affirmed. 830 F.3d 470
(2016). As relevant, the Seventh Circuit held that the text
of §1610(g) demonstrates that the provision serves to
identify the property of a foreign state or its agencies or
——————
state sponsors of terrorism, §1605A. See National Defense Authoriza-
tion Act for Fiscal Year 2008 (NDAA), §1083(a), 122 Stat. 338–341.
Shortly thereafter, petitioners moved in the District Court for an order
converting their judgment under §1605(a)(7) to one under the new
provision, §1605A, which the District Court granted. See Rubin v.
Islamic Republic of Iran, 563 F. Supp. 2d 38, 39, n. 3 (DC 2008).
2 Petitioners also sought to execute the judgment against three other
collections that are no longer at issue in this case: the Chogha Mish
Collection, the Oriental Institute Collection, and the Herzfeld Collec-
tion. The Chogha Mish Collection has been removed from the territorial
jurisdiction of the federal courts, and the Court of Appeals for the
Seventh Circuit determined that the Oriental Institute Collection and
Herzfeld Collection are not property of Iran. See 830 F.3d 470, 475–
476 (2016). Petitioners do not challenge that decision here.
4 RUBIN v. ISLAMIC REPUBLIC OF IRAN
Opinion of the Court
instrumentalities that are subject to attachment and
execution, but it does not in itself divest that property of
immunity. The Court granted certiorari to resolve a split
among the Courts of Appeals regarding the effect of
§1610(g).3 582 U. S. ___ (2017). We agree with the con-
clusion of the Seventh Circuit, and therefore affirm.
B
We start with a brief review of the historical develop-
ment of foreign sovereign immunity law and the statutory
framework at issue here, as it provides a helpful guide to
our decision. This Court consistently has recognized that
foreign sovereign immunity “is a matter of grace and
comity on the part of the United States.” Verlinden B. V.
v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983);
Schooner Exchange v. McFaddon, 7 Cranch 116, 136
(1812). In determining whether to exercise jurisdiction
over suits against foreign sovereigns, courts traditionally
“deferred to the decisions of the political branches . . . on
whether to take jurisdiction over actions against foreign
sovereigns.” Verlinden, 461 U.S., at 486.
Prior to 1952, the State Department generally held the
position that foreign states enjoyed absolute immunity
from all actions in the United States. See ibid. But, as
foreign states became more involved in commercial activity
in the United States, the State Department recognized
that such participation “makes necessary a practice which
will enable persons doing business with them to have their
rights determined in the courts.” J. Tate, Changed Policy
——————
3 Compare Bennett v. Islamic Republic of Iran, 825 F.3d 949, 959
(CA9 2016) (holding that §1610(g) provides a freestanding exception to
attachment and execution immunity); Weinstein v. Islamic Republic of
Iran, 831 F.3d 470, 483 (CADC 2016) (same); Kirschenbaum v. 650
Fifth Avenue and Related Properties, 830 F.3d 107, 123 (CA2 2016)
(same), with 830 F.3d, at 481 (concluding that §1610(g) does not create
a freestanding exception to immunity).
Cite as: 583 U. S. ____ (2018) 5
Opinion of the Court
Concerning the Granting of Sovereign Immunity to For-
eign Governments, 26 Dept. State Bull. 984, 985 (1952).
The Department began to follow the “restrictive” theory of
foreign sovereign immunity in advising courts whether
they should take jurisdiction in any given case. Immunity
typically was afforded in cases involving a foreign sover-
eign’s public acts, but not in “cases arising out of a foreign
state’s strictly commercial acts.” Verlinden, 461 U.S., at
487.
In 1976, Congress enacted the FSIA in an effort to codify
this careful balance between respecting the immunity
historically afforded to foreign sovereigns and holding
them accountable, in certain circumstances, for their
actions. 90 Stat. 2891, as amended, 28 U.S. C. §1602
et seq. “For the most part, the Act” tracks “the restrictive
theory of sovereign immunity.” Verlinden, 461 U.S., at
488. As a default, foreign states enjoy immunity “from the
jurisdiction of the courts of the United States and of the
States.” §1604. But this immunity is subject to certain
express exceptions. For example, in line with the restric-
tive theory, a foreign sovereign will be stripped of jurisdic-
tional immunity when a claim is based upon commercial
activity it carried out in the United States. See, e.g.,
§1605(a)(2). The FSIA also provides that a foreign state
will be subject to suit when it is designated as a state
sponsor of terrorism and damages are sought as a result of
acts of terrorism. See §1605A(a).
With respect to the immunity of property, the FSIA
similarly provides as a default that “the property in the
United States of a foreign state shall be immune from
attachment arrest and execution.” §1609. But, again,
there are exceptions, and §1610 outlines the circumstances
under which property will not be immune. See §1610. For
example, subsection (a) expressly provides that property
“shall not be immune” from attachment and execution
where, inter alia, it is “used for a commercial activity in the
6 RUBIN v. ISLAMIC REPUBLIC OF IRAN
Opinion of the Court
United States” and the “judgment relates to a claim for
which the foreign state is not immune under section
1605A or section 1605(a)(7) (as such section was in effect
on January 27, 2008), regardless of whether the property
is or was involved with the act upon which the claim is
based.” §1610(a)(7).
Prior to 2008, the FSIA did not address expressly under
what circumstances, if any, the agencies or instrumentali-
ties of a foreign state could be held liable for judgments
against the state. Faced with that question in First Nat.
City Bank v. Banco Para el Comercio Exterior de Cuba,
462 U.S. 611 (1983) (Bancec), this Court held that “gov-
ernment instrumentalities established as juridical entities
distinct and independent from their sovereign should
normally be treated as such.” Id., at 626–627. Thus, as a
default, those agencies and instrumentalities of a foreign
state were to be considered separate legal entities that
cannot be held liable for acts of the foreign state. See id.,
at 628.
Nevertheless, the Court recognized that such a stringent
rule should not be without exceptions. The Court suggested
that liability would be warranted, for example, “where
a corporate entity is so extensively controlled by [the
state] that a relationship of principal and agent is created,”
id., at 629, or where recognizing the state and its
agency or instrumentality as distinct entities “would work
fraud or injustice,” ibid. (internal quotation marks omit-
ted). See id., at 630. But the Court declined to develop a
“mechanical formula for determining” when these excep-
tions should apply, id., at 633, leaving lower courts with
the task of assessing the availability of exceptions on a
case-by-case basis. Over time, the Courts of Appeals
coalesced around the following five factors (referred to as
the Bancec factors) to aid in this analysis:
“(1) the level of economic control by the government;
Cite as: 583 U. S. ____ (2018) 7
Opinion of the Court
“(2) whether the entity’s profits go to the government;
“(3) the degree to which government officials manage
the entity or otherwise have a hand in its daily
affairs;
“(4) whether the government is the real beneficiary of
the entity’s conduct; and
“(5) whether adherence to separate identities would
entitle the foreign state to benefits in United States
courts while avoiding its obligations.” Walter Fuller
Aircraft Sales, Inc. v. Republic of Philippines, 965
F.2d 1375, 1380, n. 7 (CA5 1992); see also Flatow v.
Islamic Republic of Iran, 308 F.3d 1065, 1071, n. 9
(CA9 2002).
In 2008, Congress amended the FSIA and added
§1610(g). See NDAA §1083(b)(3)(D), 122 Stat. 341–342.
Section 1610(g)(1) provides:
“(g) Property in Certain Actions.—
“(1) In general. [T]he property of a foreign state
against which a judgment is entered under section
1605A, and the property of an agency or instrumental-
ity of such a state, including property that is a sepa-
rate 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 that government is the sole benefi-
ciary in interest of the property; or
8 RUBIN v. ISLAMIC REPUBLIC OF IRAN
Opinion of the Court
“(E) whether establishing the property as a separate
entity would entitle the foreign state to benefits in
United States courts while avoiding its obligations.”
Subparagraphs (A) through (E) incorporate almost
verbatim the five Bancec factors, leaving no dispute that,
at a minimum, §1610(g) serves to abrogate Bancec with
respect to the liability of agencies and instrumentalities of
a foreign state where a §1605A judgment holder seeks to
satisfy a judgment held against the foreign state. The
issue at hand is whether §1610(g) does something more;
whether, like the commercial activity exception in
§1610(a)(7), it provides an independent exception to im-
munity so that it allows a §1605A judgment holder to
attach and execute against any property of the foreign
state, regardless of whether the property is deprived of
immunity elsewhere in §1610.
II
We turn first to the text of the statute. Section
1610(g)(1) provides that certain property will be “subject
to attachment in aid of execution, and execution, upon [a
§1605A] judgment as provided in this section.” (Emphasis
added.) The most natural reading is that “this section”
refers to §1610 as a whole, so that §1610(g)(1) will govern
the attachment and execution of property that is exempted
from the grant of immunity as provided elsewhere in
§1610. Cf. Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 487 (1999) (noting that the phrase
“[e]xcept as provided in this section” in one subsection
serves to incorporate “the rest of ” the section in which the
subsection appears).
Other provisions of §1610 unambiguously revoke the
immunity of property of a foreign state, including specifi-
cally where a plaintiff holds a judgment under §1605A,
provided certain express conditions are satisfied. For
example, subsection (a) provides that “property in the
Cite as: 583 U. S. ____ (2018) 9
Opinion of the Court
United States . . . used for a commercial activity in the
United States . . . shall not be immune” from attachment
and execution in seven enumerated circumstances, includ-
ing when “the judgment relates to a claim for which the
foreign state is not immune under section 1605A . . . .”
§1610(a)(7). Subsections (b), (d), and (e) similarly set out
circumstances in which certain property of a foreign state
“shall not be immune.”4 And two other provisions within
§1610 specifically allow §1605A judgment holders to at-
tach and execute against property of a foreign state,
“[n]otwithstanding any other provision of law,” including
those provisions otherwise granting immunity, but only
with respect to assets associated with certain regulated
and prohibited financial transactions. See §1610(f )(1)(A);
Terrorism Risk Insurance Act of 2002 (TRIA), §201(a), 116
Stat. 2337, note following 28 U.S. C. §1610.
Section 1610(g) conspicuously lacks the textual markers,
“shall not be immune” or “notwithstanding any other
provision of law,” that would have shown that it serves as
an independent avenue for abrogation of immunity. In
fact, its use of the phrase “as provided in this section”
signals the opposite: A judgment holder seeking to take
advantage of §1610(g)(1) must identify a basis under one
of §1610’s express immunity-abrogating provisions to
attach and execute against a relevant property.
Reading §1610(g) in this way still provides relief to
judgment holders who previously would not have been
able to attach and execute against property of an agency
or instrumentality of a foreign state in light of this Court’s
decision in Bancec. Suppose, for instance, that plaintiffs
obtain a §1605A judgment against a foreign state and seek
——————
4 Section 1610(b), for example, provides that “any property . . . of [the]
agency or instrumentality of a foreign state engaged in commercial
activity in the United States shall not be immune” from attachment
and execution in satisfaction of a judgment on a claim for which the
agency or instrumentality is not immune under §1605A. §1610(b)(3).
10 RUBIN v. ISLAMIC REPUBLIC OF IRAN
Opinion of the Court
to collect against the assets located in the United States of
a state-owned telecommunications company. Cf. Alejan-
dre v. Telefonica Larga Distancia de Puerto Rico, Inc., 183
F.3d 1277 (CA11 1999). Prior to the enactment of
§1610(g), the plaintiffs would have had to establish that
the Bancec factors favor holding the agency or instrumen-
tality liable for the foreign state’s misconduct. With
§1610(g), however, the plaintiffs could attach and execute
against the property of the state-owned entity regardless
of the Bancec factors, so long as the plaintiffs can establish
that the property is otherwise not immune (e.g., pursuant
to §1610(a)(7) because it is used in commercial activity in
the United States).
Moreover, our reading of §1610(g)(1) is consistent “with
one of the most basic interpretive canons, that [a] statute
should be construed so that effect is given to all its provi-
sions, so that no part will be inoperative or superfluous,
void or insignificant.” Corley v. United States, 556 U.S.
303, 314 (2009) (internal quotation marks omitted). Sec-
tion 1610 expressly references §1605A judgments in its
immunity-abrogating provisions, such as 28 U.S. C.
§§1610(a)(7), (b)(3), (f )(1), and §201 of the TRIA, showing
that those provisions extend to §1605A judgment holders’
ability to attach and execute against property. If the
Court were to conclude that §1610(g) establishes a basis
for the withdrawal of property immunity any time a plain-
tiff holds a judgment under §1605A, each of those provi-
sions would be rendered superfluous because a judgment
holder could always turn to §1610(g), regardless of whether
the conditions of any other provision were met.5
——————
5 To the extent petitioners suggest that those references to §1605A
were inadvertent, see Brief for Petitioners 41–44, the statutory history
further supports the conclusion that §1610(a)(7) applies to §1605A
judgment holders, as the reference to §1605A was added to §1610(a)(7)
in the same Act that created §§1605A and 1610(g). See NDAA
§§1083(a), (b)(3), 122 Stat. 338–342.
Cite as: 583 U. S. ____ (2018) 11
Opinion of the Court
The Court’s interpretation of §1610(g) is also consistent
with the historical practice of rescinding attachment and
execution immunity primarily in the context of a foreign
state’s commercial acts. See Verlinden, 461 U.S., at 487–
488. Indeed, the FSIA expressly provides in its findings
and declaration of purpose that
“[u]nder international law, states are not immune
from the jurisdiction of foreign courts insofar as their
commercial activities are concerned, and their com-
mercial property may be levied upon for the satisfac-
tion of judgments rendered against them in connec-
tion with their commercial activities.” §1602.
This focus of the FSIA is reflected within §1610, as subsec-
tions (a), (b), and (d) all outline exceptions to immunity
of property when that property is used for commercial
activity. The Court’s reading of §1610(g) means that
individuals with §1605A judgments against a foreign state
must primarily invoke other provisions revoking the grant
of immunity for property related to commercial activity,
including §1610(a)(7), unless the property is expressly
carved out in an exception that applies “[n]otwithstanding
any other provision of law,” §1610(f )(1)(A); §201(a) of the
TRIA. That result is consistent with the history and
structure of the FSIA.
Throughout the FSIA, special avenues of relief to vic-
tims of terrorism exist, even absent a nexus to commercial
activity. Where the FSIA goes so far as to divest a foreign
state or property of immunity in relation to terrorism-
related judgments, however, it does so expressly. See
§§1605A, 1610(a)(7), (b)(3), (f )(1)(A); §201(a) of the TRIA.
Out of respect for the delicate balance that Congress
struck in enacting the FSIA, we decline to read into the
statute a blanket abrogation of attachment and execution
immunity for §1605A judgment holders absent a clearer
indication of Congress’ intent.
12 RUBIN v. ISLAMIC REPUBLIC OF IRAN
Opinion of the Court
III
A
Petitioners resist that the phrase “as provided in this
section” refers to §1610 as a whole and contend that Con-
gress more likely was referencing a specific provision
within §1610 or a section in the NDAA. That explanation
is unpersuasive.
Petitioners first assert that “this section” might refer to
procedures contained in §1610(f ). Section 1610(f ) permits
§1605A judgment holders to attach and execute against
property associated with certain regulated and prohibited
financial transactions, §1610(f )(1), and it provides that the
United States Secretary of State and Secretary of the
Treasury will make every effort to assist in “identifying,
locating, and executing against the property of [a] foreign
state or any agency or instrumentality of such state,”
§1610(f )(2). Petitioners point out that paragraph (1) of
subsection (f ) has never come into effect because it was
immediately waived by the President after it was enacted,
pursuant to §1610(f )(3).6 So, the argument goes, it would
make sense that Congress created §1610(g) as an alterna-
tive mechanism to achieve a similar result.7
This is a strained and unnatural reading of the phrase
“as provided in this section.” In enacting §201(a) of the
TRIA, which, similar to 28 U.S. C. §1610(f ), permits
attachment and execution against blocked assets, Con-
gress signaled that it was rescinding immunity by permit-
ting attachment and execution “[n]otwithstanding any
other provision of law.” See §201(a) of the TRIA. Had
——————
6 Section 1610(f )(3) authorizes the President to waive paragraph (1) of
subsection (f ) “in the interest of national security.” President Clinton
immediately waived the provision, and the waiver has never been
withdrawn. See Pres. Determ. No. 99–1, 63 Fed. Reg. 59201 (1998);
Pres. Determ. No. 2001–03, 65 Fed. Reg. 66483 (2000).
7 Petitioners reference the decision of the Court of Appeals for the
Ninth Circuit in Bennett, 825 F.3d 949, in support of this position.
Cite as: 583 U. S. ____ (2018) 13
Opinion of the Court
Congress likewise intended §1610(g) to have such an
effect, it knew how to say so. Cf. Bank Markazi v. Peter-
son, 578 U. S. ___, ___, n. 2 (2016) (slip op., at 4, n. 2)
(noting that “[s]ection 1610(g) does not take precedence
over ‘any other provision of law,’ as the TRIA does”).
Petitioners fare no better in arguing that Congress may
have intended “this section” to refer only to the instruction
in §1610(f )(2) that the United States Government assist in
identifying assets. Section 1610(f )(2) does not provide for
attachment or execution at all, so petitioners’ argument
does not account for the lack of textual indicators that
exist in provisions like §§1610(a)(7) and (f )(1) that unam-
biguously abrogate immunity and permit attachment and
execution.
Finally, petitioners assert that “this section” could
possibly reflect a drafting error that was intended to
actually refer to §1083 of the NDAA, the Public Law in
which §1610(g) was enacted. This interpretation would
require not only a stark deviation from the plain text of
§1610(g), but also a departure from the clear text of the
NDAA. Section 1083(b)(3) of the NDAA provides that
“Section 1610 of title 28, United States Code, is amended
. . . by adding at the end” the new subsection “(g).” 122
Stat. 341. The language “this section” within (g), then,
clearly and expressly incorporates the NDAA’s reference
to “Section 1610” as a whole. There is no basis to conclude
that Congress’ failure to change “this section” in §1610(g)
was the result of a mere drafting error.
B
In an effort to show that §1610(g) does much more than
simply abrogate the Bancec factors, petitioners argue that
the words “property of a foreign state,” which appear in
the first substantive clause of §1610(g), would otherwise
be rendered superfluous because the property of a foreign
state will never be subject to a Bancec inquiry. By its
14 RUBIN v. ISLAMIC REPUBLIC OF IRAN
Opinion of the Court
plain text, §1610(g)(1) permits enforcement of a §1605A
judgment against both the property of a foreign state and
the property of the agencies or instrumentalities of that
foreign state. Because the Bancec factors would never
have applied to the property of a foreign state, petitioners
contend, those words must signal something else: that
§1610(g) provides an independent basis for the withdrawal
of immunity.
The words “property of a foreign state” accomplish at
least two things, however, that are consistent with the
Court’s understanding of the effect of §1610(g). First,
§1610(g) serves to identify in one place all the categories of
property that will be available to §1605A judgment hold-
ers for attachment and execution, whether it is “property
of the foreign state” or property of its agencies or instru-
mentalities, and commands that the availability of such
property will not be limited by the Bancec factors. So long
as the property is deprived of its immunity “as provided in
[§1610],” all of the types of property identified in §1610(g)
will be available to §1605A judgment holders.
Second, in the context of the entire phrase, “the property
of a foreign state against which a judgment is entered
under section 1605A,” the words “foreign state” identify
the type of judgment that will invoke application of
§1610(g); specifically, a judgment held against a foreign
state and entered under §1605A. Without this opening
phrase, §1610(g) would abrogate the Bancec presumption
of separateness in all cases, not just those involving terror-
ism judgments under §1605A. The words, “property of a
foreign state,” thus, are not rendered superfluous under
the Court’s reading because they do not merely identify a
category of property that is subject to §1610(g) but also
help inform when §1610(g) will apply in the first place.
Indeed, §1610(g) would make no sense if those words were
removed.
Cite as: 583 U. S. ____ (2018) 15
Opinion of the Court
C
All else aside, petitioners contend that any uncertainty
in §1610(g) should be resolved by giving full effect to the
legislative purpose behind its enactment. Petitioners posit
that Congress enacted §1610(g) “with the specific purpose
of removing the remaining obstacles to terrorism judg-
ment enforcement.” Brief for Petitioners 26. In support of
that position, they reference a brief discussion of §1610(g)
in a footnote to the Court’s decision in Bank Markazi, 578
U. S. ___, that notes that Congress “expand[ed] the avail-
ability of assets for postjudgment execution” when it added
§1610(g) by making “available for execution the property
(whether or not blocked) of a foreign state sponsor of
terrorism, or its agency or instrumentality, to satisfy a
judgment against that state.” Id., at ___, n. 2 (slip op., at
4, n. 2). But Bank Markazi’s characterization of §1610(g)
simply mirrors the text of §1610(g) and is entirely con-
sistent with the Court’s holding today that §1610(g) ex-
pands the assets available for attachment and execution
by abrogating this Court’s decision in Bancec with respect
to judgments held under §1605A. Beyond their citation to
Bank Markazi, petitioners have not directed us to any
evidence that supports their position that §1610(g) was
intended to divest all property of a foreign state or its
agencies or instrumentalities of immunity.
IV
For the foregoing reasons, we conclude that 28 U.S. C.
§1610(g) does not provide a freestanding basis for parties
holding a judgment under §1605A to attach and execute
against the property of a foreign state, where the immunity
of the property is not otherwise rescinded under a sepa-
rate provision within §1610. The judgment of the Seventh
Circuit is affirmed.
It is so ordered.
16 RUBIN v. ISLAMIC REPUBLIC OF IRAN
Opinion of the Court
JUSTICE KAGAN took no part in the consideration or
decision of this case.