HOWARD J. BARNET, AS TRUSTEE OF THE 2012 SARETTA BARNET REVOCABLE TRUST, ET AL. v. MINISTRY OF CULTURE AND SPORTS OF THE HELLENIC REPUBLIC
19-2171-cv
United States Court of Appeals, Second Circuit
June 9, 2020
19-2171-cv
Barnet et al. v. Ministry of Culture & Sports of the Hellenic Republic
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2019
No. 19-2171-cv
HOWARD J. BARNET, AS TRUSTEE OF THE 2012 SARETTA BARNET
REVOCABLE TRUST, PETER L. BARNET, AS TRUSTEE OF THE 2012
SARETTA BARNET REVOCABLE TRUST, JANE L. BARNET, AS TRUSTEE
OF THE 2012 SARETTA BARNET REVOCABLE TRUST, SOTHEBY’S, INC.,
Plaintiffs-Appellees,
v.
MINISTRY OF CULTURE AND SPORTS OF THE HELLENIC REPUBLIC,
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: MARCH 5, 2020
DECIDED: JUNE 9, 2020
Before: HALL, LYNCH, and MENASHI, Circuit Judges.
The Ministry of Culture and Sports of the Hellenic Republic
(“Grеece”) appeals from a decision of the United States District Court
for the Southern District of New York (Failla, J.), issued on June 21,
2019, concluding that the court had subject-matter jurisdiction
pursuant to the Foreign Sovereign Immunities Act over Plaintiffs’ suit
seeking declaratory relief against Greece.
We conclude that Greece’s claim of ownership over an ancient
horse figurine was not in connection with any commercial activity by
Greece outside of the United States, and accordingly there is no
jurisdiction pursuant to the FSIA. We REVERSE and REMAND with
instructions to dismiss this action.
GARY STEIN, Schulte Roth & Zabel LLP, New York, New
York (Randall T. Adams, Bayard P. Brown, and Minji
Reem on the brief), for Plaintiffs-Appellees.
ANDREW Z. SCHWARTZ, Foley Hoag LLP, Boston,
Massachusetts (Leila A. Amineddoleh on the brief), for
Defendant-Appellant.
In this appeal, we decide whether Greece’s assertion of
ownership over an ancient horse figurine was “in connection with a
commercial activity” by Greece within the meaning of the Foreign
Sovereign Immunities Act. We conclude that the assertion of
ownership was in connection with Greece’s enactment and
enforcement of patrimony laws that declare the figurine to be the
property of Greece and that these are sovereign rather than
commercial activities. Accordingly, the FSIA does not authorize
jurisdiction over this dispute, and we reverse and remand with
instructions to dismiss for lack of jurisdiction.
In 2018, Sotheby’s auction house announced that it planned to
auction a bronze horse figurine on behalf of the 2012 Saretta Barnet
Revocable Trust. Greek officials learned of the auction and sent a
letter via e-mail to Sotheby’s stating that the figurine belonged to
Greece pursuant to its 1932 Antiquities Act and its 2002 Protection of
Antiquities and Cultural Heritage in General Act (together,
“patrimony laws”), which declared historic Greek artifacts to be the
property of Greece. Sotheby’s withdrew the figurine from its auction
and subsequently joined the trustees of the Trust in filing suit against
Greece in the Southern District of New York. Plaintiffs seek only
declaratory relief on the disputed issue of ownership; they seek no
damages or injunctive relief. As the basis for jurisdiction, Plaintiffs
invoke the FSIA, which codifies certain enumerated exceptions to the
rule that foreign states are immune from suit.
In denying Greece’s motion to dismiss, the district court agreed
with Plaintiffs that Greece lacks immunity here because its action of
sending the letter claiming ownership falls within the FSIA’s
“commercial activity” exception. That exception authorizes suit
against a foreign state that undertakes “an act outside the territory of
the United States in connection with a commercial activity of the
foreign state elsewhere and that act causes a direct effect in the United
States.” 28 U.S.C. § 1605(a)(2).1 The district court reasoned that the
“act” outside the United States was Grеece’s sending of the letter, and
it was “in connection with a commercial activity” outside the United
States because non-state actors may, and do, send demand letters
claiming ownership of artifacts up for auction. In other words, the
Notes
the parties agree do not apply here. See 28 U.S.C. § 1605(a)(2).
conduct was commercial because it was not the sort of activity in
which only sovereigns engage.
We agree that the core challenged act in this case was Greece’s
sending of the letter asserting ownership over the figurine. We
disagree, however, that the act was undertaken in connection with a
commercial activity outside the United States. The connected activity
was Greece’s enactment and enforcement of patrimony laws that
declare the figurine to be the property of Greece. The enactment and
enforcement of such patrimony laws are archetypal sovereign
activities and therefore do not provide the requisite connection to
commercial activity that would authorize suit under the FSIA.
Because the commercial-activity exception was the only
purported basis for jurisdiction, we reverse and remand with
instructions to dismiss this action for lack of jurisdiction.
BACKGROUND2
I
In 1932, Greece enacted the Antiquities Act, which states that
“[a]ll antiquities movablе or immovable found in Greece and in any
State land, in rivers, lakes and at the bottom of the sea, and in
municipal, monasterial and private estates from ancient times
onwards, are the property of the State.” Diatagma (1932:5351) Περὶ
ἀρχαιοτήτων [On Antiquities], ΕΦΗΜΕΡΊΣ ΤΗΣ ΚΥΒΕΡΝΉΣΕΩΣ (ΦΕΚ)
[LEGAL GAZETTE] 1932, Art. 1 (Greece) [hereinafter Antiquities Act].
district court did not purport to resolve any disputes of fact and relied оnly
on the complaint and Greece’s letter to Sotheby’s, which was incorporated
by reference into the complaint. Barnet v. Ministry of Culture & Sports of the
Hellenic Republic, 391 F. Supp. 3d 291, 296 n.1 (S.D.N.Y. 2019).
The Act further provides that “[w]hoever becomes in any way the
owner of an antiquity, must within fifteen days of the time it came in
his/her possession, declare it to the nearest archaeological or police
authority, or to the Archaeology Department of the Ministry of
Education and Religious Affairs, while at the same time letting them
know how he/she obtained this antiquity and, if possible, the place
where this was found.” Id., Art. 5.
An owner who fails to make this required declaration within 15
days but who does so within two months will face a fine. Id., Art. 6. If
the declaration is made after two months, the fine will increase. Id.
And “[i]f the holder of the antiquity is found after said two month
period and prior to the declaration, in addition to the [increased] fine
the confiscation of what was discovered will be done in favor of the
State Museums.” Id. “Whoever for the purpose of illegally disposing
of an antiquity fails to declare possession thereof for more than two
months, they shall be punished by imprisonment for 1 to 6 months
and a fine of 1000-4000 drachmas.” Id.
In 2002, Greece enacted the On the Protection of Antiquities
and Cultural Heritage in General Act, which states that “the Greek
State shall care for the protection of cultural objects originating from
Greek territory whenever they may have been removed from it” and
“wherever they are located.” Nomos (2002:3028) Για την προστασία
των Αρχαιοτή των και εν γέ νει της πολιτιστικὴ ς κληρονομιάς [On
the Protection of Antiquities and Cultural Heritage in General],
ΕΦΗΜΕΡΊΣ ΤΗΣ ΚΥΒΕΡΝΉΣΕΩΣ (ΦΕΚ) [LEGAL GAZETTE] 2002, Art. 1(3)
(Greece) [hereinafter Cultural Heritage Act]. The 2002 Act further
provides that “[m]ovable ancient monuments dating up to 1453
belong to the State in terms of ownership and possession, are
imprescriptible and extra commercium.” Id., Art. 21(1).3 The holder of
such an object “may transfer his possession, after notifying the
[Ministry of Culture] of his intentiоn and the personal data of the
candidate holder, who shall submit an application for a permit of
possession,” but “[a]ny transfer effected without this permit shall be
null and void and the movable monuments shall be taken without
formalities by the State.” Id., Art. 28(1).
The 2002 Act also authorizes criminal penalties: “Any person
who transfers the ownership or the possession of a monument or
acquires ownership or possession of a monument without the permit,
authorization or notification, required by law, shall be punished by a
term of imprisonment not exceeding two (2) years. An imprisonment
of at least two (2) years shall be imposed in case of an ancient
monument that has not been lawfully declared.” Id., Art. 59.
II
The bronze horse figurine at the center of this case is “of
Corinthian type, 14 cm tall, [and] from the Geometric Period.” Compl.
¶ 1. It was sold at a public auction in Switzerland in 1967. Thereafter,
the figurine was acquired by antiquities dealer Robin Symes, whо
then sold it to Howard and Saretta Barnet in 1973.4 Howard Barnet
passed away in 1992, and in 2012 the figurine was transferred to the
back to prehistoric, ancient, Byzantine and post-Byzantine times up to
1830.” Cultural Heritage Act, Art. 2(b)(i).
confiscated “the Symes-Michailides photo archive” recording items that
were in his possession. J. App’x 133.
2012 Saretta Barnet Revocable Trust. Saretta Barnet passed аway in
2017, and the Trust consigned the figurine for auction at Sotheby’s.
Sotheby’s planned to auction the figurine on May 14, 2018, in
New York City. On April 25, 2018, Sotheby’s published an auction
catalogue online that included the figurine as “Lot 4, Greek Figure of
a Horse of Corinthian type, of stylized attenuated form standing on
an openwork rectangular base, with crested mane with fine notches
at the edge, cylindrical muzzle nearly encircled by grooved mаrkings,
long striated ears, and fragmentary tail, Bronze, Height 5 1/2 in (14
cm), Geometric Period, circa 8th Century BC, Greek,” with an
estimated auction price of $150,000 to $250,000. Id. ¶ 33.
On May 11, 2018, the Friday prior to the Monday auction date,
the Greek Ministry of Culture emailed a letter to Sotheby’s marked
“URGENT.” The letter made the following points:
- Greece “has become aware of your intention to auction,
- “[T]hree photos of this specific figurine are included in
- “There are no records in the archives of our Service (i.e.
- “The Greek National Law 5351/1932 on Antiquities and
among other items, a bronze figurine of a horse, dated in
the end of the Geometric era, in a session that will take
place in New York in 14/05/2018.” J. App’x 133.
the Symes-Michailides photo archive,” and the “specific
figurine, which you intend to auction, is of Greek origin.”
Id.
an export permit from Greece) to prove that this figurine
has left the country in a legal way.” Id.
the one following it, Law 3028/2002, on the Protection of
Antiquities and Cultural Heritage in General state that
all movable ancient monuments belong to the State in
terms of ownership and possession, are imprescriptible
and extra commercium. Additionally, according to the
Greek Criminal Law (Act 3028/2002, article 55) the illegal
acquisition and trading of cultural property of great
value … constitutes a serious criminal offence,
irrespective of where it takes place.” J. App’x 133.
- Greece’s “national legislation is fully in compliance with
- “In addition we would like to inform you that there is
- “For all above reasons and reserving all our rights, WE
- “In any case, Greece reserves the right to take the
the relevant international Treaties including the
UNSECO Convention on the Means of Prohibiting and
Preventing the illicit Import, Export and Transfer of
Ownership of Cultural Property, Paris 1970.” Id.
also in force a Memorandum of Understanding between
the Government of the Hellenic Republic and the
Government of the United States of America concerning
the imposition of import restrictions on categories of
Archaeological and Byzantine Ecclesiastical,
Ethnological material through the 15th century A.D. of
the Hellenic Republic.” Id.
ASK YOU TO: - immediately withdraw the ancient
Greek figurine of the list from the items to be auctioned
on 14/05/2018[;] refrain, from today on, from any activity
related to any type of delivery of the figurine to any third
party[; and] contact us immediately in order to confirm
your intention to conform to the above and subsequently
cooperate for the repatriation of the coin [sic] and its
return to the Greek state.” Id. at 133-34.
necessary legal action in the competent courts in order to
repatriate the coin [sic].” Id. at 134.
After receiving the letter, Sotheby’s withdrew the figurine from
its auction and responded to Greece in writing, disputing Greece’s
claim to ownership but inviting Greece to provide any evidence in
support of its claim. Greece did not respond.
On June 5, 2018, Sotheby’s and the trustees of the Trust sued
Greece in the Southern District of New York. Plaintiffs seek no
damages or injunctive relief. The sole count for relief is for a
“Declaration of Ownership.”
Greece filed a motion to dismiss for lack of jurisdiction, arguing
that Greece was immune from suit by reason of sovereign immunity
and that Plaintiffs had not satisfied any FSIA exception. On June 21,
2019, the district court denied that motion, concluding that Greece’s
act of sending the letter was commercial, that it had a direct effect in
the United States, and therefore that the commercial-activity
exception of the FSIA applied. Barnet, 391 F. Supp. 3d 291. In the
district court’s view, the core act challenged in the suit was Greece’s
sending of the letter to Sotheby’s in May 2018; because private parties
send letters claiming ownership of historical artifacts up for auction,
the act was not uniquely sovereign and thеrefore was commercial. Id.
at 299-300.
Greece filed an interlocutory appeal of that order, and the
district court has stayed proceedings pending appeal.5
collateral order doctrine, which ‘allows an immediate appeal from an order
denying immunity under the FSIA.’” Petersen Energia Inversora S.A.U. v.
Argentine Republic & YPF S.A., 895 F.3d 194, 203 (2d Cir. 2018) (quoting
Kensington Int’l Ltd. v. Itoua, 505 F.3d 147, 153 (2d Cir. 2007)). Because the
decision under review was made on a motion to dismiss and did not
purport to decide any dispute of fact, the determination of whether
Plaintiffs carried their burden under the commercial-activity exception is a
DISCUSSION
I
“The FSIA provides the sole basis for obtaining jurisdiction
over a foreign state in the courts of this country. The Act states that 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.’” Petersen, 895 F.3d at 204 (internal quotation marks and
citation omitted). Sovereign immunity from suit is the default rule,
subject only to specific exceptions.
The parties agree that the only exception at issue in this case is
the “commercial-activity exception,” which contains three separate
clauses:
A foreign state shall not be immune from the jurisdiction
of courts of the United States ... in any case ... in which
the action is based [1] upon a commercial activity carried
on in the United States by the foreign state; or [2] upon
an act performed in the United States in connection with
a commercial activity of the foreign state elsewhere; or
[3] upon an act outside the territory of the United States
in connection with a commercial activity of the foreign
state elsewhere and that act causes a direct effect in the
United States[.]
Plaintiffs focus on clause 3, also known as the “direct-effect
clause,” and accordingly our analysis is limited to that provision. To
satisfy the clause, the suit must be “(1) based upon an act outside the
legal matter reviewed de novo. Shapiro v. Republic of Bolivia, 930 F.2d 1013,
1016-17 (2d Cir. 1991).
territory of the United States; (2) that was taken in connection with a
commercial activity of [Greece] outside this country; and (3) that
caused a direct effect in the United States.” Republic of Argentina v.
Weltover, Inc., 504 U.S. 607, 611 (1992) (internal quotation marks and
alterations omitted).
For the first element, “we must identify the act of the foreign
sovereign State that serves as the basis for plaintiffs’ claims.” Petersen,
895 F.3d at 204. We look at the “core” of Plaintiffs’ suit: the particular
acts for which relief is sought. OBB Personenverkehr AG v. Sachs, 136 S.
Ct. 390, 396 (2015).
For the second element, we identify the “activity” in connection
with which the core act was taken, then ask whether that activity was
an exercise of “‘only those powers that can also be exercised by
private citizens,’ as distinct from those ‘powers peculiar to
sovereigns.’” Saudi Arabia v. Nelson, 507 U.S. 349, 360 (1993) (quoting
Weltover, 504 U.S. at 614). “The commercial character of an activity
shall be determined by reference to the nature of the course of conduct
or particular transaction or act, rather than by reference to its
purpose.”
The third element is satisfied if an effect “simply follow[ed] as
an immediate consequence of the defendant’s activity.” Atlantica
Holdings v. Sovereign Wealth Fund Samruk-Kazyna JSC, 813 F.3d 98, 108
(2d Cir. 2016) (internal quotation marks and alterations omitted). The
effect “need not be ‘substantial’ or ‘foreseeable.’” Id.
II
We first must identify Greece’s predicate “act” that “serves as
the basis for plaintiffs’ claims.” Petersen, 895 F.3d at 204. We look for
the “core” action taken by Greece outside the United States for which
relief is sought, OBB, 136 S. Ct. at 396, as defined by the “elements of
[the] claim that, if proven, would еntitle [Plaintiffs] to relief under
[their] theory of the case,” Nelson, 507 U.S. at 357.
The district court correctly concluded that “sending the
Demand Letter” from Greece to Sotheby’s in May 2018 was the
predicate act. Barnet, 391 F. Supp. 3d at 298, 299. The letter “assert[ed]
an ownership interest in the Bronze Horse when demanding that
Sotheby’s withdraw the figure from the auction.” Id. at 299. The
complaint confirms that sending the letter claiming ownership was
the “core” act that Plaintiffs challenge. OBB, 136 S. Ct. at 396.
Having identified the core predicate act—sending a letter
asserting ownership of the figurine—we next determine whether that
act was taken “in connection with a commercial activity” by Greece
outside the United States.
The district court analyzed whether sending a letter claiming
ownership was an act that а private party may typically undertake in
the marketplace and, concluding that it was, the court found that act
to be commercial and therefore not sovereign.6 The error in this
analysis was treating Greece’s act of sending the letter as both the
predicate “act” and the related “commercial activity” required by
for an “act” that a foreign state undertakes “in connection with a
commercial activity,”
conduct, the act of sending the Demand Letter, was a commercial аctivity,
while Defendants assert that the act was purely sovereign in nature. The
Court agrees with Plaintiffs.”) (internal citations omitted).
undertaken in connection with itself. If the letter were properly
considered to be both the act and the commercial activity—that is, if
Plaintiffs were seeking relief for a single, self-contained commercial
activity—it would suggest that Plaintiffs should proceed under the
first clause of the commercial activity exception, which authorizes
suits “based upon a commercial activity carried on in the United
States by the foreign state,” rather than the direct-effect clause, which
requires both an act and a commercial activity to which the act is
connected. Id.; see also Cicippio v. Islamic Republic of Iran, 30 F.3d 164,
166 (D.C. Cir. 1994).
But we think the parties have properly focused on the direct-
effect clause because the letter was not a single, self-contained
activity. In their suit, Plaintiffs do not challenge the mere sending of
the letter but the claim of ownership over the figurine that the letter
expresses. It is apparent that Greece undertook the act of sending the
letter in connection with its claim of ownership over the figurine
pursuant to its patrimony laws.7 Identifying the activity in
connection with which the letter was sent, as the statute requires,
reveals its sovereign nature: Greece has claimed ownership over the
figurinе by adopting legislation that nationalizes historical artifacts
and by enforcing those patrimony laws.
In its letter to Sotheby’s, Greece expressly invoked the “Greek
National Law 5351/1932 on Antiquities and the one following it, Law
sent in connection with Greece’s claim of ownership. Oral Argument Audio
Recording at 22:08-22:21 (“[T]he act … is the sending of the letter under the
statute. The commercial activity elsewhere is Greece’s assertion of its
ownership—purported ownership—of this property, which also happened
elsewhere.”).
3028/2002, on the Protection of Antiquities and Cultural Heritage in
General,” which “state that all movable ancient monuments belong to
the State in terms of ownership and possession, are imprescriptible
and extra commercium.” J. App’x 133. Those laws declare artifacts such
as the figurine to be the property of Greece. See Cultural Heritage Act,
Art. 21(1) (declaring that “[m]ovable ancient monuments … belong to
the State in terms of ownership and possession”); Antiquities Act, Art.
1 (declaring that “[a]ll antiquities movable or immovable found in
Greece … are the property of the State”). Those laws also regulate the
export of artifacts such as the figurine and impose criminal liability in
certain circumstances, as Greece noted in its letter.
Nationalizing property is a distinctly sovereign act. See Nelson,
507 U.S. at 362
(“[L]egislation … can be performed only by the state
acting as such.”); Garb v. Republic of Poland, 440 F.3d 579, 586 (2d Cir.
2006) (“Expropriation is a decidedly sovereign—rather than
commercial—activity.”); Alberti v. Empresa Nicaraguense De La Carne,
705 F.2d 250, 254 (7th Cir. 1983) (recognizing that “the nationalization
of [property] … is a quintessential Government act”); see also Petersen,
895 F.3d at 201
(“[A] sovereign’s power of expropriation … can be
vast.”). Just as nationalization or expropriation of propеrty is
considered a sovereign activity rather than a commercial “claim of
ownership” by the foreign state, so too here Greece is acting in a
sovereign capacity by enforcing laws that regulate ownership and
export of nationalized artifacts. A “foreign state’s exercise of the
power of its police has long been understood … as peculiarly
sovereign in nature,” Nelson, 507 U.S. at 361, as has “the sovereign’s
right to regulate its exports” through a permitting process, Honduras
Aircraft Registry, Ltd. v. Gov’t of Honduras, 129 F.3d 543, 549 (11th Cir.
1997).8
The FSIA directs that the commercial or sovereign character of
an activity be determined by reference to the “nature” of the activity
rather than its “purpose.”
form” of Greece’s “activity” was the enactment and enforcement of
laws declaring the figurine to be state property. Weltover, 504 U.S. at
617
(. Its insistence on recognition of and obedience to its patrimony
laws are not “the type of actions by which a private party engages in
‘trade and traffic or commerce,’” nor is that activity “analogous to a
private commercial transaction.” Id. at 614, 616. Plaintiffs contend that
because Greece has not physically seized the figurine it has not
undertaken the sovereign acts of nationalization or law enforcement.9
But we think that adopting its patrimony laws and insisting on
compliance with those laws is enough to establish that its activity was
sovereign rather than cоmmercial. The FSIA does not require a
foreign state to invade the United States and to seize disputed
property in order to maintain its immunity from suit. Even though a
private party might be able to send a letter disputing ownership of an
object, no private party could nationalize historical artifacts and
regulate the export and ownership of those nationalized artifacts—
and that is the activity in connectiоn with which Greece sent its letter.
foreign state can make an ownership claim to allegedly stolen property
pursuant to a patrimony law.” Oral Argument Audio Recording at 25:20 to
25:26.
sovereign act if they actually go out and grab it. But that’s not what they
did here.”).
In Anglo-Iberia Underwriting Management v. P.T. Jamsostek, 600
F.3d 171 (2d Cir. 2010)
(, we explained that even though a state-owned
health insurer provided services that resembled those of а private
insurer, it was important to recognize that it did so “as the default
health insurer under Indonesia’s national social security program.”
Id. at 177. Because it acted within that legal framework, its activities
did “not equate to those of an independent actor in the private
marketplace of potential health insurers” but were “sovereign in
nature” and outside “the ‘commercial activity’ exception to the FSIA.”
Id. at 178. Here, too, we think that Greece is not buying or selling
historical artifacts “in any traditional sense” and “does not otherwise
compete in the marketplace like a private” antiquities dealer. Id. at
177. Rather, it is seeking to enforce a scheme of patrimony laws
according to which artifacts such as the figurine are “extra
commercium.” To “hold otherwise and look only to the fact of [a mere
claim of ownership] for purposes of our ‘commercial activity’ analysis
would allow the exception to swallow the rule of presumptive
sovereign immunity codified in the FSIA.” Id. at 178.
Our conclusion finds additional support in the Ninth Circuit’s
decision in Hilao v. Estate of Marcos, 94 F.3d 539 (9th Cir. 1996). In that
case, the Philippines had frozen, seized, or sold various assets around
the world to repatriate money that had allegedly been stolen by the
Philippines’ former president. The Ninth Circuit held that the
Philippines was “acting under a statutory mandate to recover
property allegedly stolen from the treasury,” which was an “exercise
of police power [that] is a governmental rather than commercial
activity.” Id. at 546. Likewise here, we think it misses the nature of
Greece’s activity to ignore the scheme of patrimony laws that governs
it. That would be like saying that the Philippines was merely claiming
ownership and selling property, as any private party might do.
Although the district court was correct that merely claiming
ownership or encouraging cultural heritage are not uniquely
sovereign activities, Barnet, 391 F. Supp. 3d at 300, the district court
did not appreciate that Greece’s act of sending its letter was connected
to the sovereign activity of claiming ownership through
nationalization and enforcement of patrimony laws.
Plaintiffs contend in response that the patrimony laws may not
even apply to this particular figurine because it is unclear whether it
left Greece before the patrimony laws went into effect or because the
laws may bе unenforceable here because of due process concerns
about applying Greek law to property in the United States.10 But
these arguments confirm that the issue in this case—ownership of the
figurine—is inextricably bound up with sovereign activity. Litigation
of Plaintiffs’ claims would require the district court to evaluate the
validity, scope, and application of Greece’s patrimony laws—putting
at issue precisely those sorts of sovereign acts for which Greece enjoys
sovereign immunity. “[P]ermitting the cause of action here would
appear to undermine the immunity Congress intended to confer on
[Greece] under the FSIA.” Garb, 440 F.3d at 589-90.11
thesis of our complaint is that [the figurine] doesn’t fall within the law
because there’s no proof that it was stolen.”); id. at 32:59-33:13 (“There are
potential defenses as a matter of due process. If the Patrimony Law hasn’t
actually been communicated or actually enforced, there is a vein of caselaw
to that effect, under U.S. caselaw, that I think might be applicable.”).
recovered, perhaps Greece would use it in connection with commercial
exhibits in Greece, and that might provide a connection between the letter
and a commercial activity. The complaint contаins no allegation of such a
CONCLUSION
Greece’s act of sending the letter was not in connection with a
commercial activity outside of the United States. Because the direct-
effect clause of the commercial-activity exception in
§ 1605(a)(2) is not satisfied, the district court erred in concluding that
it had jurisdiction. We therefore do not address Greece’s remaining
arguments on appeal, and we REVERSE the district court’s decision
and REMAND with instructions to dismiss this action for lack of
subject-matter jurisdiction.
future use, but even if it did, the outcome would not change. Sovereigns do
not lose immunity because parties can imagine potential commercial
activities downstream from the sovereign activity. See Garb, 440 F.3d at 587
(“Concededly, the expropriation of property … is, in some sense,
‘connected’ to any subsequent commercial treatment of that property or its
proceeds. … Such a connection, however, is simply too ‘attenuated,’ and
not substantive enough, to satisfy
Rastra Bank, 834 F.3d 50, 57 (2d Cir. 2016) (“[A] plaintiff must cite more than
tangential commercial activities to which the ‘acts’ forming the basis of the
claim have only an attenuated connection.”) (internal quotation marks
omitted).