Monthly Archives: October 2014

Attachment in Terrorism Cases

October 22, 2014 By in Terrorism Exception Tags: , , , , Leave a comment

The Seventh Circuit recently removed a significant obstacle to attachment or execution in terrorism cases. 

Section 1610(c) provides that “[n]o attachment or execution referred to in subsections (a) and (b) of this section shall be permitted until the court has ordered such attachment and execution after having 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.”  28 U.S.C. § 1610(c).  In Gates v. Syrian Arab Republic, 755 F.3d 568 (7th Cir. 2014), the Seventh Circuit held that the limitations set forth in section 1610(c) did not apply to attachments in terrorism cases.  In reaching that result, the Seventh Circuit focused on section 1610(c)’s express limitation to attachment or execution under subsections (a) and (b).  Since section 1610(g) – the provision addressing attachment and execution in terrorism cases – “is not mentioned in section 1610(c),” the latter section “simply does not apply to execution or attachment under section 1610(g).”  Gates, 755 F.3d at 575.

By recognizing that section 1610(c)’s limitations are inapplicable to attachment proceedings in terrorism cases, the Seventh Circuit properly adhered to the plain terms of the statute.  The ruling should also serve the goal of helping to streamline attachment proceedings in cases involving terrorism.

Non-Economic Quasi-Property Rights Under Section 1605(a)(3)

October 15, 2014 By in International Takings Exception Tags: , , , Leave a comment

Section 1605(a)(3) provides that a foreign state shall not be immune in any case “in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.”  28 U.S.C. § 1605(a)(3).  In LaLoup v. United States, No. CIV.A. 13-7124, 2014 WL 3361804 (E.D. Pa. July 10, 2014), the court held that a family’s “quasi-property right” in a deceased family member’s body – a right that “can be used for only the one purpose of burial, and has no pecuniary value” – satisfied the “rights in property” requirement set forth in section 1605(a)(3).  Id. at *14-15. 

I am skeptical of the LaLoup court’s conclusion.  As then-Circuit Judge Scalia observed with regard to the analogous immovable property exception, 28 U.S.C. § 1605(a)(4), a court’s “job is not to give the term [rights in immovable property] the most expansive reading possible, nor to extract from different sources of law an artificial consensus definition of the term, but to determine what Congress meant by the language in this particular statute.”  Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1521 (D.C. Cir. 1984).  The purpose of section 1605(a)(3) was  to address “expropriation claims.”  H.R. Rep. No. 94-1487, at 19 (1976).  As the full language of the jurisdictional provision demonstrates, it was intended to cover property that could be used “in connection with a commercial activity.”  28 U.S.C. § 1605(a)(3); see also, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“The plainness . . . of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”).  Given the legislative history and the specific context of the term “rights in property” as it is used in section 1605(a)(3), it does not appear that the term should be extended to “quasi-property rights” in a human body that have no pecuniary or economic value.

“Head of the Foreign Ministry” is Strictly Construed Under Section 1608(a)

October 8, 2014 By in Service of Process Tags: , , , , Leave a comment

In Barot v. Embassy of Republic of Zambia, No. CV 13-0451 (ABJ), 2014 WL 2443868 (D.D.C. June 2, 2014) – a case that I have discussed before – the court reaffirmed that strict compliance under section 1608(a) requires careful adherence to all of the service requirements. 

The plaintiff in Barot argued that sending service documents to the Zambia’s Ministry of Foreign Affairs complied with section 1608(a)(3)’s requirement that the documents be sent to “the head of the ministry of foreign affairs of the foreign state concerned.”  28 U.S.C. § 1608(a)(3).  The court disagreed, finding the service defective because “[t]he plain language of the statute requires that the service package be addressed to the head of the ministry, or the minister of foreign affairs, not to the ministry in general.”  Barot, 2014 WL 2443868, at *2.  The district court also rejected plaintiff’s argument that “no other court has required ‘head of’ or the name of the minister before there is proper service under section 1608(a)(3),” holding that such a contention “ignores the plain language of that section[] and . . . overlooks the fact that this issue has not been presented to a court before.”  Id. at *3.

Barot should serve as a reminder to plaintiffs that courts will not excuse even relatively minor defects in service on a foreign state under section 1608(a).  To the extent that a plaintiff is uncertain about service requirements under section 1608(a), the plaintiff should seek legal counsel to help ensure that service is perfected.

Lurking Attribution Issues Under the FSIA

October 1, 2014 By in Agency Tags: , , , Leave a comment

During my regular review of FSIA cases, I am constantly surprised by the inattention paid to attribution.

For example, in LaLoup v. United States, No. CIV.A. 13-7124, 2014 WL 3361804 (E.D. Pa., July 10, 2014), the court assumed that Greece owned an item for purposes of the international takings exception because the item was owned by an agency or instrumentality of Greece.  LaLoup, 2014 3361804, at *18.  The court’s conclusion ignores a fundamental principle underlying the FSIA, namely that “government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such.”  First Nat. City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 626-27 (1983).  If property is owned by an agency or instrumentality of a foreign state, it is not owned by the foreign state itself for purposes of the FSIA’s jurisdictional provisions – at least absent a principal-agent relationship or another basis upon which to disregard the agency or instrumentality’s separate legal status.

Attribution issues under the FSIA can be complex and can (as I have explained before) lead to confusion.  However, courts and attorneys should follow a basic rule: if there are distinct legal entities involved under a plaintiff’s theory of the case, there is a lurking attribution issue.  That issue must be addressed and resolved before the conduct or ownership rights of one entity can be freely imputed to another.