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

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.

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