967 F.3d 778
D.C. Cir.2020Background
- TIG holds confirmed arbitral awards against Argentina (over $33M) and registered those judgments in D.C. in Sept. 2018.
- Argentina listed a vacant D.C. property (2136 R Street NW) for sale; the building had historic mixed diplomatic/commercial uses but was uninhabited for years.
- TIG filed an emergency motion for attachment-related relief and a writ of execution three days after registering its judgments.
- Argentina removed the property from the market three days after TIG filed and before a judge was assigned; the district court denied TIG’s motion, applying a time-of-writ test.
- On appeal, the D.C. Circuit held that courts must assess whether property is ‘used for a commercial activity’ based on the totality of the circumstances as of the time of filing, not the time a writ issues, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When to assess whether property is 'used for a commercial activity' | Assess status at time of filing | Assess status at time writ issues | Time of filing |
| What facts to consider in that assessment | Consider totality of the circumstances (past uses, availability, manipulation) | Look only to present use at time of writ | Totality of the circumstances at filing |
| Whether TIG forfeited the time-of-filing/totality arguments by prior positions | TIG: no forfeiture; arguments address distinct questions | Argentina: TIG took inconsistent positions and forfeited | No forfeiture; appellate review permitted |
| Remedy/procedure on remand | Apply filing-time, totality test to the R Street property and consider other defenses | Argentina: district court’s time-of-writ denial was correct | Vacate denial; remand for district court to apply correct standard |
Key Cases Cited
- Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134 (2014) (describing FSIA's comprehensive sovereign-immunity framework)
- Dole Foods Co. v. Patrickson, 538 U.S. 468 (2003) (present-tense statutory language ordinarily measured at time of filing)
- Bennett v. Islamic Republic of Iran, 618 F.3d 19 (D.C. Cir. 2010) (standards of review and FSIA context)
- FG Hemisphere Assocs., LLC v. Republique du Congo, 455 F.3d 575 (5th Cir. 2006) (FSIA execution-immunity analysis)
- Weinstein v. Islamic Republic of Iran, 831 F.3d 470 (D.C. Cir. 2016) (execution immunity as a rebuttable presumption)
- Af-Cap Inc. v. Republic of Congo, 383 F.3d 361 (5th Cir. 2004) (holistic approach to property-use inquiry)
- Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080 (9th Cir. 2007) (totality-of-the-circumstances inquiry for §1610(a))
- Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela, 932 F.3d 126 (3d Cir. 2019) (rejecting narrow temporal inquiry to prevent manipulation)
- Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d 120 (2d Cir. 2009) (emphasizing actual, not hypothetical, commercial use requirement)
- EM Ltd. v. Republic of Argentina, 473 F.3d 463 (2d Cir. 2007) (insufficient to rely on potential future use for attachment)