Lead Opinion
delivered the opinion of the Court.
The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U. S. C. § 1602 et seq., governs federal courts’ jurisdiction in lawsuits against foreign sovereigns. Today, we must decide whether the FSIA provides immunity to a foreign sovereign from a lawsuit to declare the validity of tax liens on property held by the sovereign for the purpose of housing its employees. We hold that the FSIA does not immunize a foreign sovereign from such a suit.
I
The Permanent Mission of India to the United Nations is located in a 26-floor building in New York City that is owned by the Government of India. Several floors are used for diplomatic offices, but approximately 20 floors contain residential units for diplomatic employees of the mission and their families. The employees — all of whom аre below the rank of Head of Mission or Ambassador — are Indian citizens who receive housing from the mission rent free.
Similarly, the Ministry for Foreign Affairs of the People’s Republic of Mongolia is housed in a six-story building in New York City that is owned by the Mongolian Government. Like the Permanent Mission of India, certain floors of the Ministry Building include residences for lower level employees of the Ministry and their families.
Under New York law, real property owned by a foreign government is exempt from taxation if it is “used exclusively” for diplomatic offices or for the quarters of a diplomat
For several years, the city of New York (City) has levied property taxes against petitioners for the portions of their buildings used to house lower level employees. Petitioners, however, refused to pay the taxes. By operation of New York law, the unpaid taxes eventually converted into tax liens held by the City against the two properties. As of February 1, 2003, the Indian Mission owed about $16.4 million in unpaid property taxes and interest, and the Mongolian Ministry owed about $2.1 million.
On April 2, 2003, the City filed complaints in state court seeking declaratory judgments to establish the validity of the tax liens.
Reviewing the District Court’s decision under the collateral order doctrine, a unanimous panel of the Court of Appeals for the Second Circuit affirmed.
II
“[T]he FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court.” Argentine Republic v. Amerada Hess Shipping Corp.,
A
We begin, as always, with the text of the statute. Limtiaco v. Camacho,
At the time of the FSIA’s adoption in 1976, a “lien” was defined as “[a] charge or security or incumbrance upon property.” Black’s Law Dictionary 1072 (4th ed. 1951). “Incumbrance,” in turn, was defined as “[a]ny right to, or interest in, land which may subsist in another to the diminution of its value . . . .” Id., at 908; see also id., at 941 (8th ed. 2004) (defining “lien” as a “legal right or interest that a creditor has in another’s property”). New York law defines “tax lien” in accordance with these general definitions. See N. Y. Reаl Prop. Tax Law Ann. § 102(21) (West Supp. 2007) (“ Tax lien’ means an unpaid tax . . . which is an encumbrance of real property . . . ”). This Court, interpreting the Bankruptcy Code, has also recognized that a lienholder has a property interest, albeit a “nonpossessory” interest. United States v. Security Industrial Bank,
The practical effects of a lien bear out these definitions of liens as interests in property. A lien on real property runs with the land and is enforceable against subsequent purchasers. See 5 Restatement of Property §540 (1944). As such, “a lien has an immediate adverse effect upon the amount which [could be] receive[d] on a sale, . . . constituting] a direct interference with the property . . . .” Republic of Argentina v. New York, 25 N. Y. 2d 252, 262,
B
Our reading of the text is supported by two well-recognized and related purposes of the FSIA: adoption of the restrictive view of sovereign immunity and codification of international law at the time of the FSIA’s enactment. Until the middle of the last century, the United States followed “the classical or virtually absolute theory of sovereign immunity,” under which “a sovereign cannot, without his consent, be made a respondent in the courts of another sovereign.” Letter from Jack B. Tate, Acting Legal Adviser, U. S. Dept, of State, to Acting U. S. Attornеy General Phillip B. Perlman (May 19, 1952) (Tate Letter), reprinted in 26 Dept, of State Bull. 984 (1952), and in Alfred Dunhill of London, Inc. v. Republic of Cuba,
As a threshold matter, property ownership is not an inherently sovereign function. See Schooner Exchange v. McFaddon,
Petitioners respond to this conclusion by citing the second sentence of Comment d to §68, which states that the rule “does not preclude immunity with respect to a claim arising out of a foreign state’s ownership or possession of immovable property but not contesting such ownership or the right to possession.” Id., at 207. According to petitioners, that sentence limits the exception to cases contesting ownership or possession. When read in context, however, the comment supports the City. Petitioners ignore the first sentence of the comment, which reemphasizes that immunity does not extend to cases involving the possession of or “interest in” the property. Ibid. And the illustrations following the comment make clear that it refers only to claims incidental to property ownership, such as actions involving an “injury suffered in a fall” on the property, for which immunity would apply. Id., at 208. By contrast, for an eminent-domain proceeding, the foreign sovereign could not claim immunity.
In addition, both parties rely on various international agreements, primarily the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U. S. T. 3227, T. I. A. S. No. 7502, to identify pre-FSIA international practice. Petitioners point to the Vienna Convention’s analogous withholding of immunity for “a real actiоn relating to private immovable property situated in the territory of the receiving State, unless [the diplomatic agent] holds it on behalf of the sending State for the purposes of the mission.” Id., at 3240, Art. 31(l)(a). Petitioners contend that this language indicates they are entitled to immunity for two reasons. First, petitioners argue that “‘real actionfs]’” do not inсlude actions for performance of obligations “ ‘deriving from ownership or possession of immovable property.’” Brief for Petitioners 28 (quoting E. Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations 238 (2d ed. 1998); emphasis deleted). Second, petitioners assert that the property here is held “ ‘on behalf of the sending State for purposes of the Mission.’ ” Brief for Petitioners 28.
But as the City shows, it is far from apparent that the term “real action” — a term derived from the civil law — is as limited as petitioners suggest. See Chateau Lafayette Apartments, Inc. v. Meadow Brook Nat. Bank,
Ill
Because the statutory text and the acknowledged purposes of the FSIA make it clear that a suit to establish the validity of a tax lien places “rights in immovable property ... in issue,” we affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Notes
The City concedes that even if a court of competent jurisdiction declares the liens valid, petitioners are immune from foreclosure proceedings. See Brief for Respondent 40 (noting that thеre is no FSIA immunity exception for enforcement actions). The City claims, however, that the declarations of validity are necessary for three reasons. First, once a court has declared property tax liens valid, foreign sovereigns traditionally concede and pay. Second, if the foreign sovereign fails to pay in the fаce of a valid court judgment, that country’s foreign aid may be reduced by the United States by 110% of the outstanding debt. See Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2006, § 543(a), 119 Stat. 2214; Consolidated Appropriations Act of 2005, § 543(a), 118 Stat. 3011. Third, the liens would be enforceable against subsequent purchasers. 5 Restatement of Property § 540 (1944).
The City offers several other arguments against immunity based on the Vienna Convention, but those arguments ultimately go to the merits of the case, i. e., whether petitioners are actually responsible for paying the taxes. Because the only question before us is one of jurisdiction, and because the text and historical context of the FSIA demonstrate that petitioners are not immune from the City’s suits, we leave these merits-related arguments to the lower courts.
Dissenting Opinion
with whom Justice Breyer joins, dissenting.
Diplomatic channels provide the normal method of resolving disputes between local governmental entities and foreign sovereigns. See Schooner Exchange v. McFaddon,
The Foreign Sovereign Immunities Act of 1976 (FSIA) both codified and modified that basic rule. The statute confirms that sovereigns are generally immune from suit in our courts, 28 U. S. C. § 1604, but identifies seven specific exceptions through which courts may accept jurisdiction, § 1605(a). None of those exceptions pertains, or indeed makes any reference, to actions brought to establish a foreign sovereign’s tax liabilities. Because this is such an action, I think it is barred by the general rule codified in the FSIA.
It is true that the FSIA contains an exception for suits to resolve disputes over “rights in immovable property,” § 1605(a)(4), and New York City law provides that unpaid real estate taxes create a lien that constitutes an interest in such property, N. Y. C. Admin. Codе § 11-301 (Cum. Supp. 2006). It follows that a literal application of the FSIA’s text provides a basis for applying the exception to this case. See ante, at 197-199. Given the breadth and vintage of the background general rule, however, it seems to me highly unlikely that the drafters of the FSIA intended to abrogate sovereign immunity in suits over property interests whose primary funсtion is to provide a remedy against delinquent taxpayers.
Under the Court’s logic, since “a suit to establish the validity of a lien implicates ‘rights in immovable property,’” ante, at 199, whenever state or municipal law recognizes a lien against a foreign sovereign’s real property, the foreign government may be haled into federal court to litigate the validity of that lien. Such a broad exception to sovereign immunity threatens, as they say, to swallow the rule. Under the municipal law of New York City, for example, liens are available against real property, among other things, to compel landowners to pay for pest control, emergency repairs, and sidewalk upkеep. See N. Y. C. Admin. Code §§ 17-145,17-147,17-151(b) (2000); see also M. Mitzner, Liens
The force of the arguments of the Solicitor General as amicus curiae supporting petitioners buttresses my conviction that a narrow reading of the statutory exception is more faithful to congressional intent than a reading that enables a dispute over taxes to be classified as a dispute over “rights in immovable property.” It is true that insofar as the FSIA transferred the responsibility for making immunity decisions from the State Department to the Judiciary, Verlinden B. V.,
And I am persuaded. At bottom, this case is not about the validity of the city’s title to immovable property, or even the validity of its automatic prejudgment lien. Rather, it is a dispute over a foreign sovereign’s tax liability. If Congress had intended the statute to waive sovereign immunity in tax litigation, I think it would have said so.
Accordingly, I respectfully dissent.