REPUBLIC OF AUSTRIA ET AL. v. ALTMANN
No. 03-13
SUPREME COURT OF THE UNITED STATES
Argued February 25, 2004—Decided June 7, 2004
541 U.S. 677
Deputy Solicitor General Hungar argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Jeffrey P. Minear, Mark B. Stern, Douglas Hallward-Driemeier, William H. Taft IV, and Elizabeth M. Teel.
E. Randol Schoenberg argued the cause for respondent. With him on the brief was Donald S. Burris.*
JUSTICE STEVENS delivered the opinion of the Court.
In 1998 an Austrian journalist, granted access to the Austrian Gallery‘s archives, discovered evidence that certain valuable works in the Gallery‘s collection had not been donated by their rightful owners but had been seized by the Nazis or expropriated by the Austrian Republic after World War II. The journalist provided some of that evidence to respondent, who in turn filed this action to recover possession of six Gustav Klimt paintings. Prior to the Nazi invasion of Austria, the paintings had hung in the palatial Vienna home of respondent‘s uncle, Ferdinand Bloch-Bauer, a Czechoslovakian Jew and patron of the arts. Respondent claims ownership of the paintings under a will executed by her uncle after he fled Austria in 1938. She alleges that the
The defendants (petitioners here)—the Republic of Austria and the Austrian Gallery (Gallery), an instrumentality of the Republic—filed a motion to dismiss the complaint asserting, among other defenses, a claim of sovereign immunity. The District Court denied the motion, 142 F. Supp. 2d 1187 (CD Cal. 2001), and the Court of Appeals affirmed, 317 F. 3d 954 (CA9 2002), as amended, 327 F. 3d 1246 (2003). We granted certiorari limited to the question whether the Foreign Sovereign Immunities Act of 1976 (FSIA or Act),
*Briefs of amici curiae urging reversal were filed for Japan by Craig A. Hoover, Jonathan S. Franklin, and Lorane F. Hebert; and for the United Mexican States by Jonathan I. Blackman.
Briefs of amici curiae urging affirmance were filed for the Austrian Jewish Community et al. by Charles G. Moerdler, James A. Shifren, Thomas R. Kline, and Marc D. Stern; for Bet Tzedek Legal Services et al. by Janie F. Schulman, Jeffrey P. Sinensky, and David J. Bederman; and for Michael Berenbaum et al. by Edward McGlynn Gaffney, Jr., Arthur Miller, and Melvyn Weiss.
Andreas F. Lowenfeld filed a brief for the Societe Nationale des Chemins de Fer Francais as amicus curiae.
I
Because this case comes to us from the denial of a motion to dismiss on the pleadings, we assume the truth of the following facts alleged in respondent‘s complaint.
Born in Austria in 1916, respondent Maria V. Altmann escaped the country after it was annexed by Nazi Germany in 1938. She settled in California in 1942 and became an American citizen in 1945. She is a niece, and the sole surviving named heir, of Ferdinand Bloch-Bauer, who died in Zurich, Switzerland, on November 13, 1945.
Prior to 1938 Ferdinand, then a wealthy sugar magnate, maintained his principal residence in Vienna, Austria, where the six Klimt paintings and other valuable works of art were housed. His wife, Adele, was the subject of two of the paintings. She died in 1925, leaving a will in which she “ask[ed]” her husband “after his death” to bequeath the paintings to
On March 12, 1938, in what became known as the “Anschluss,” the Nazis invaded and claimed to annex Austria. Ferdinand, who was Jewish and had supported efforts to resist annexation, fled the country ahead of the Nazis, ultimately settling in Zurich. In his absence, according to the complaint, the Nazis “Aryanized” the sugar company he had directed, took over his Vienna home, and divided up his artworks, which included the Klimts at issue here, many other valuable paintings, and a 400-piece porcelain сollection. A Nazi lawyer, Dr. Erich Führer, took possession of the six Klimts. He sold two to the Gallery in 19412 and a third in 1943, kept one for himself, and sold another to the Museum of the City of Vienna. The immediate fate of the sixth is not known. 142 F. Supp. 2d, at 1193.
In 1946 Austria enacted a law declaring all transactions motivated by Nazi ideology null and void. This did not result in the immediate return of looted artwork to exiled Austrians, however, because a different provision of Austrian
The next year Robert Bentley, respondent‘s brother and fellow heir, retained a Viennese lawyer, Dr. Gustav Rinesch, to locate and recover property stolen from Ferdinand during the war. In January 1948 Dr. Rinesch wrote to the Gallery requesting return of the three Klimts purchased from Dr. Führer. A Gallery representative responded, asserting—falsely, according to the complaint—that Adele had bequeathed the paintings to the Gallery, and the Gallery had merely permitted Ferdinand to retain them during his lifetime. Id., at 170a, ¶ 40.
Later the same year Dr. Rinesch enlisted the support of Gallery officials to obtain export permits for many of Ferdinand‘s remaining works of art. In exchange, Dr. Rinesch, purporting to represent respondent and her fellow heirs, signed a document “acknowledg[ing] and accept[ing] Ferdinand‘s declaration that in the event of his death he wished to follow the wishes of his deceased wife to donate” the Klimt paintings to the Gallery. Id., at 177a, ¶ 56. In addition, Dr. Rinesch assisted the Gallery in obtaining both the painting Dr. Führer had kept for himself and the one he had sold to the Museum of the City of Vienna.3 At no time during these transactions, however, did Dr. Rinesch have respondent‘s permission either “to negotiate on her behalf or to allow
In 1998 a journalist examining the Gallеry‘s files discovered documents revealing that at all relevant times Gallery officials knew that neither Adele nor Ferdinand had, in fact, donated the six Klimts to the Gallery. The journalist published a series of articles reporting his findings, and specifically noting that Klimt‘s first portrait of Adele, “which all the [Gallery] publications represented as having been donated to the museum in 1936,” had actually been received in 1941, accompanied by a letter from Dr. Führer signed “‘Heil Hitler.‘” Id., at 181a, ¶ 67.
In response to these revelations, Austria enacted a new restitution law under which individuals who had been coerced into donating artworks to state museums in exchange for export permits could reclaim their property. Respondent—who had believed, prior to the journalist‘s investigation, that Adele and Ferdinand had “freely donated” the Klimt paintings to the Gallery before the war—immediately sought recovery of the paintings and other artworks under the new law. Id., at 178a-179a, ¶ 61, 182a. A committee of Austrian Government officials and art historians agreed to return certain Klimt drawings and porcelain settings that the family had donated in 1948. After what the complaint terms a “sham” proceeding, however, the committee declined to return the six paintings, concluding, based on an allegedly purposeful misreading of Adele‘s will, that her precatory request had created a binding legal obligation that required her husband to donate the paintings to the Gallery on his death. Id., at 185a.
Respondent then announced that she would file a lawsuit in Austria to recover the paintings. Because Austrian court costs are proportional to the value of the recovery sought (and in this case would total several million dollars, an amount far beyond respondent‘s means), she requested a
II
Respondent‘s complaint advances eight causes of action and alleges violations оf Austrian, international, and California law.4 It asserts jurisdiction under
Petitioners filed a motion to dismiss raising several defenses including a claim of sovereign immunity.6 Their immunity argument proceeded in two steps. First, they claimed that as of 1948, when much of their alleged wrongdoing took place, they would have enjoyed absolute immunity from suit in United States courts.7 Proceeding from this premise, petitioners next contended that nothing in the FSIA should be understood to divest them of that immunity retroactively.
The District Court rejected this argument, concluding both that the FSIA applies retroactively to pre-1976 actions and that the Act‘s expropriation exception extends to re-
The Court of Appeals agreed that the FSIA applies to this case.8 Rather than endorsing the District Court‘s reliance on the Act‘s jurisdictional nature, however, the panel reasoned that applying the FSIA to Austria‘s alleged wrongdoing was not impermissibly retroactive because Austria could not legitimately have expected to receive immunity for that wrongdoing even in 1948 when it occurred. The court rested that conclusion on an analysis of American courts’ then-prevalent practice of deferring to case-by-case immunity determinations by the State Department, and on that
We granted certiorari, 539 U. S. 987 (2003), and now affirm the judgment of the Court of Appeals, though on different reasoning.
III
Chief Justice Marshall‘s opinion in Schooner Exchange v. McFaddon, 7 Cranch 116 (1812), is generally viewed as the source of our foreign sovereign immunity jurisprudence. In that case, the libellants claimed to be the rightful owners of a French ship that had taken refuge in the port of Philadelphia. The Court first emphasized that the jurisdiction of the United States over persons and property within its territory “is susceptible of no limitation not imposed by itself,” and thus foreign sovereigns have no right to immunity in our courts. Id., at 136. Chief Justice Marshall went on to explain, however, that as a matter of comity, members of the international community had implicitly agreed to waive the exercise of jurisdiction over other sovereigns in certain classes of cases, such as those involving foreign ministers or the person of the sovereign.9 Accepting a suggestion advanced by the Executive Branch, see id., at 134, the Chief Justice concluded that the implied waiver theory also served to exempt the Schooner Exchange—“a national armed ves-
In accordance with Chief Justice Marshall‘s observation that foreign sovereign immunity is a matter of grace and comity rather than a constitutional requirement, this Court has “consistently . . . deferred to the decisions of the political branches—in particular, those of the Executive Branch—on whether to take jurisdiction” over particular actions against foreign sovereigns and their instrumentalities. Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 486 (1983) (citing Ex parte Peru, 318 U. S. 578, 586-590 (1943); Republic of Mexico v. Hoffman, 324 U. S. 30, 33-36 (1945)). Until 1952 the Executive Branch followed a policy of requesting immunity in all actions against friendly sovereigns. 461 U. S., at 486. In that year, however, the State Department concluded that “immunity should no longer be granted in certain types of cases.”11 App. A to Brief for Petitioners 1a. In a letter to the Acting Attorney General, the Acting Legal Adviser for the Secretary of State, Jack B. Tate, explained
“A study of the law of sovereign immunity reveals the existence of two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory of sovereign immunity, a sovereign cannot, without his consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory of sovereign immunity, the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gestionis). . . . [I]t will hereafter be the Department‘s policy to follow the restrictive theory . . . in the consideration of requests of foreign governments for a grant of sovereign immunity.” Id., at 1a, 4a-5a.
As we explained in our unanimous opinion in Verlinden, the change in State Department policy wrought by the “Tate Letter” had little, if any, impact on federal courts’ approach to immunity analyses: “As in the past, initial responsibility for deciding questions of sovereign immunity fell primarily upon the Executive acting through the State Department,” and courts continued to “abid[e] by” that Department‘s “‘suggestions of immunity.‘” 461 U. S., at 487. The change did, however, throw immunity determinations into some disarray, as “foreign nations often placed diplomatic pressure on the State Depаrtment,” and political considerations sometimes led the Department to file “suggestions of immunity in cases where immunity would not have been available under the restrictive theory.” Id., at 487-488. Complicating matters further, when foreign nations failed to request immunity from the State Department:
“[T]he responsibility fell to the courts to determine whether sovereign immunity existed, generally by reference to prior State Department decisions. . . . Thus,
sovereign immunity determinations were made in two different branches, subject to a variety of factors, sometimes including diplomatic considerations. Not surprisingly, the governing standards were neither clear nor uniformly applied.” Ibid.
In 1976 Congress sought to remedy these problems by enacting the FSIA, a comprehensive statute containing a “set of legal standards governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies, or instrumentalities.” Id., at 488. The Act “codifies, as a matter of federal law, the restrictive theory of sovereign immunity,” ibid., and transfers primary responsibility for immunity determinations from the Executive to the Judicial Branch. The preamble states that “henceforth” both federal and state courts should decide claims of sovereign immunity in conformity with the Act‘s principles.
The Act itself grants federal courts jurisdiction over civil actions against foreign states,
The District Court agreed with respondent that the FSIA‘s expropriation еxception covers petitioners’ alleged wrongdoing, 142 F. Supp. 2d, at 1202, and the Court of Appeals affirmed that holding, 317 F. 3d, at 967-969, 974. As noted above, however, we declined to review this aspect of the courts’ opinions, confining our grant of certiorari to the issue of the FSIA‘s general applicability to conduct that occurred prior to the Act‘s 1976 enactment, and more specifically, prior to the State Department‘s 1952 adoption of the restrictive theory of sovereign immunity. See supra, at 681, 687-688, and n. 8. We begin our analysis of that issue by explaining why, contrary to the assumption of the District Court, 142 F. Supp. 2d, at 1199-1201, and Court of Appeals, 317 F. 3d, at 963-967, the default rule announced in our opinion in Landgraf v. USI Film Products, 511 U. S. 244 (1994), does not control the outcome in this case.
In Landgraf we considered whether
Acknowledging that, in most cases, the antiretroactivity presumption is just that—a presumption, rather than a con-
In contrast, we sanctioned the application tо all pending and future cases of “intervening” statutes that merely “confe[r] or ous[t] jurisdiction.” Id., at 274. Such application, we stated, “usually takes away no substantive right but simply changes the tribunal that is to hear the case.” Ibid. (internal quotation marks omitted). Similarly, the “diminished reliance interests in matters of procedure” permit courts to apply changes in procedural rules “in suits arising before [the rules‘] enactment without raising concerns about retroactivity.” Id., at 275.
Balancing these competing concerns, we described the presumption against retroactive application in the following terms:
“When a case implicates a federal statute enacted after the events in suit, the court‘s first task is to determine
whether Congress has expressly prescribed the statute‘s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command the court must determine whether the new statute would have retroactive effect, i. e., whether it would impair rights a party possessed when he acted, increase a party‘s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.” Id., at 280.14
Though seemingly comprehensive, this inquiry does not provide a clear answer in this case. Although the FSIA‘s preamble suggests that it applies to preenactment conduct, see infra, at 697-698, that statement by itself falls short of an “expres[s] prescri[ption of] the statute‘s proper reach.” Under Landgraf, therefore, it is appropriate to ask whether the Act affects substantive rights (and thus would be impermissibly retroactive if applied to preenactment conduct) or addresses only matters of procedure (and thus may be applied to all pending cases regardless of when the underlying conduct occurred). But the FSIA defies such categorization. To begin with, none of the three examples of retroactivity mentioned in the above quotation fits the FSIA‘s clarification of the law of sovereign immunity. Prior to 1976 foreign states had a justifiable expectation that, as a matter of comity, United States courts would grant them immunity for their public acts (provided the State Department did not recommend otherwise), but they had no “right” to such im-
That preliminary conclusion, however, creates some tension with our observation in Verlinden that the FSIA is not simply a jurisdictional statute “concern[ing] access to the federal courts” but a codification of “the standards governing foreign sovereign immunity as an aspect of substantive federal law.” 461 U. S., at 496-497 (emphasis added). Moreover, we noted in Verlinden that in any suit against a foreign sovereign, “the plaintiff will be barred from raising his claim in any court in the United States” unless one of the FSIA‘s exceptions applies, id., at 497 (emphasis added), and we have stated elsewhere that statutes that “creat[e] jurisdiction” where none otherwise exists “spea[k] not just to the power of a particular court but to the substantive rights of the parties as well,” Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 951 (1997) (emphasis in original). Such statutes, we continued, “even though phrased in ‘jurisdictional’ terms, [are] as much subject to our presumption against retroactivity as any other[s].” Ibid.15
This leaves only the question whether anything in the
To begin with, the preamble of the
“Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.”
28 U. S. C. § 1602 (emphasis added).
Though perhaps not sufficient to satisfy Landgraf‘s “express command” requirement, 511 U. S., at 280, this language is unambiguous: Immunity “claims” —not actions protected by immunity, but assertions of immunity to suits arising from those actions—are the relevant conduct regulated by the Act;17 those claims are “henceforth” to be decided by the courts. As the District Court observed, see supra, at 687 (citing 142 F. Supp. 2d, at 1201), this language suggests Con-
The
“We think that the text and structure of the FSIA demonstrate Congress’ intention that the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts. Sections 1604 and 1330(a) work in tandem: § 1604 bars federal and state courts from exercising jurisdiction when a foreign state is entitled to immunity, and § 1330(a) confers jurisdiction on district courts to hear suits brought by United States citizens and by aliens when a foreign state is not entitled to immunity. As we said in Verlinden, the FSIA ‘must be applied by the district courts in every action against a foreign sovereign, since subject-matter jurisdiction in any such action depends on the existence of one of the specified exceptions to foreign sovereign immunity.‘” Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 434-435 (1989) (quoting Verlinden, 461 U. S., at 493).
The Amerada Hess respondents’ claims concerned conduct that postdated the
VI
We conclude by emphasizing the narrowness of this holding. To begin with, although the District Court and Court of Appeals determined that
Finally, while we reject the United States’ recommendation to bar application of the
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE SCALIA, concurring.
I join the Court‘s opinion, but add a few thoughts of my own.
The dissent rejects this approach and instead undertakes a case-specific inquiry into whether United States courts would have asserted jurisdiction at the time of the underlying conduct. Post, at 720-728 (opinion of KENNEDY, J.). It justifies this approach on the basis of Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939 (1997). For reasons noted by the Court, see ante, at 695-696, n. 15, I think reliance on that case is mistaken. The
JUSTICE BREYER, with whom JUSTICE SOUTER joins, concurring.
I join the Court‘s opinion and judgment, but I would rest that judgment upon several additional considerations.
I
A
For present purposes I assume the following:
- Adele Bloch-Bauer died in Vienna in 1925. Her will asked her husband Ferdinand “kindly” to donate, “upon his death,” six Klimt paintings to the Austrian Gallery (Gallery). A year later, Ferdinand “formally assured the Austrian probate court that he would honor his wife‘s gift.” See ante, at 682; 317 F. 3d 954, 959 (CA9 2002); 142 F. Supp. 2d 1187, 1192-1193 (CD Cal. 2001); Brief for Petitioners 6.
- When the Nazis seized power in Austria in 1938, Ferdinand fled to Switzerland. The Nazis took over Bloch-Bauer assets, and a Nazi lawyer, Dr. Führer, liquidated Ferdinand‘s estate. Dr. Führer disposed of five of the six Klimt paintings as follows: He sold or gave three to the Gallery; he sold one to the Museum of the City of Vienna; and he kept one. (The sixth somehow ended up in the hands of a private collector who gave it to the Gallery in 1988.) See ante, at 682, 683, n. 3; 317 F. 3d, at 959-960.
Ferdinand died in Switzerland in 1945. His will did not mention the paintings, but it did name a residuаry legatee, namely, Ferdinand‘s niece, Maria Altmann, by then an American citizen. As a residuary legatee Altmann received Ferdinand‘s rights to the paintings. See ante, at 681; 317 F. 3d, at 960, 968; Brief for Petitioners 6-7. - In 1948, Bloch-Bauer family members, including Altmann, asked Austria to return a large number of family artworks. At that time Austrian law prohibited export of “artworks... deemed to be important to Austria‘s cultural heritage.” But Austria granted Altmann permission to export some works of art in return for Altmann‘s recognition, in a legal agreement, of Gallery ownership of the five Klimt paintings. (The Gallery already had three, the Museum of the City of Vienna transferred the fourth, and the Bloch-Bauer family, having recovered the fifth, which Dr. Führer had kept, donated it to the Gallery.) See ante, at 683; 317 F. 3d, at 960; 142 F. Supp. 2d, at 1193-1195; Brief for Petitioners 6-8; App. 168a.
- Fifty years later, newspaper stories suggested that in 1948 the Gallery had followed a policy of asserting ownership of Nazi-looted works of art that it did not own. Austria then enacted a restitution statute allowing individuals to reclaim properties that were subject to any such false assertion of ownership or coerced donation in exchange for export permits. The statute also created an advisory board to determine the validity of restitution claims. See ante, at 684; 142 F. Supp. 2d, at 1195-1196; Brief for Petitioners 8.
- In 1999, Altmann brought claims for restitution of several items including the five Klimt paintings. She told the advisory board that, in 1948, her lawyer had wrongly told her that the Gallery owned the five Klimt paintings irrespective of Nazi looting (title flowing from Adele‘s will or Ferdinand‘s statement of donative intent to the probate court). In her view, her 1948 agreement amounted to a coerced donation. The advisory board ordered some items returned (16
- Altmann then brought this lawsuit against the Gallery, an agency or instrumentality of the Austrian Government, in federal court in Los Angeles. She seeks return of the five Klimt paintings.
B
The question before us does not concern the legal validity of title passed through Nazi looting. Austria nowhere condones or bases its claim of ownership upon any such activity. Rather, its legal claim to the paintings rests upon any or all of the following: Adele‘s 1925 will, Ferdinand‘s probate-court confirmation, and Altmann‘s 1948 agreement. Nor does the locus of the lawsuit in Los Angeles reflect any legal determination about the merits of Austrian legal procedures. Cf. ante, at 684-685. The Court of Appeals rejected Austria‘s forum non conveniens claim, not because of the Austrian courts’ required posting of a $135,000 filing fee that is potentially refundable, App. 229a-231a, but mainly because of Altmann‘s age, 317 F. 3d, at 973-974.
The sole issue before us is whether the “expropriation exception” of the
It is conceded that the Gallery is an “agency or instrumentality” of a foreign state, namely, the Republic of Austria.
But what about the last element: Is this a “case... in which rights in property taken in violation of international law are in issue“? Altmann claims that Austria‘s 1948 actions (falsely asserting ownership of the paintings and extorting acknowledgment of its ownership in return for export permits) violated either customary international law or a 1907 Hague Convention. App. 203a-204a; Brief for Respondent 4, 35; Hague Convention (IV) on the Laws and Customs of War on Land, 36 Stat. 2277, 2309, Art. 56 (1907) (“All seizure of... works of art... is forbidden, and should be made the subject of legal proceedings“).
Austria replies that, even so, this part of the statute is not “retroactive.” Austria means that
II
The question, then, is whether the Act‘s expropriation exception applies to takings that took place many years before its enactment. The Court notes that Congress, when enacting the
First, the literal language of the statute supports Altmann. Several similar statutes and conventions limit their temporal reach by explicitly stating, for example, that the Act does “not apply to proceedings in respect of matters that occurred before the date of the coming into force of this Act.” State Immunity Act 1978, § 23(3), 10 Halsbury‘s Statutes 829, 845 (4th ed. 2001 reissue) (U. K.) (emphasis added); see also State Immunity Act 1979, § 1(2) (Singapore); Foreign States Immunities Act 1985, § 7(1) (Austl.); European Convention on State Immunity, Art. 35(3). The 1976 Act says nothing explicitly suggesting any such limitation.
Second, the legal concept of sovereign immunity, as traditionally applied, is about a defendant‘s status at the time of suit, not about a defendant‘s conduct before the suit. Thus King Farouk‘s sovereign status permitted him to ignore Christian Dior‘s payment demand for 11 “frocks and coats” bought (while king) for his wife; but once the king lost his royal status, Christian Dior could sue and collect (for clothes sold before the abdication). See Ex-King Farouk of Egypt v. Christian Dior, 84 Clunet 717, 24 I. L. R. 228, 229 (CA Paris 1957) (Christian Dior “is entitled... to bring” the ex-King to court “to answer for debts contracted” before his abdication “when, as from the date of his abdication, he is no longer entitled to claim... immunity” as “Hea[d] of State“); see also Queen v. Bow Street Metropolitan Stipendiary Mag-
Indeed, just last Term, we unanimously reaffirmed this classic principle when we held that a now-private corporation could not assert sovereign immunity, even though the events in question took place while a foreign government was its owner. Dole Food Co. v. Patrickson, 538 U. S. 468, 479 (2003). We added that “[f]oreign sovereign immunity” is not about “chilling” or not chilling “foreign states or their instrumentalities in the conduct of their business.” Ibid. (KENNEDY, J.). Rather, the objective of the “sovereign immunity” doctrine (in contrast to other conduct-related immunity doctrines) is simply to give foreign states and instrumentalities “some protection,” at the time of suit, “from the inconvenience of suit as a gesture of comity.” Ibid.; see also ante, at 694-695, 696. Compare conduct-related immunity discussed in, e. g., Nixon v. Fitzgerald, 457 U. S. 731, 749 (1982) (absolute official immunity); Harlow v. Fitzgerald, 457 U. S. 800, 813 (1982) (qualified official immunity); Pinochet, supra, at 202 (conduct-related immunity for “public acts“).
Third, the State Department‘s and our courts’ own historical practice reflects this classic view. For example, in 1952, the Department issued the Tate Letter adopting a restrictive view of sovereign immunity, essentially holding foreign sovereign immunity inapplicable in respect to a foreign state‘s commercial activity. Letter from Jack B. Tate, Acting Legal Adviser, U. S. Dept. of State, to Acting U. S. Attorney General Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. State Bull. 984-985 (1952), and in Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U. S. 682, 711-715
“After the Tate Letter‘s issuance, the Executive evaluated suits involving pre-Tate Letter conduct under the Letter‘s new standard when determining whether to submit suggestions of immunity to the courts. The Court, likewise, seems to have understood the Tate Letter to require this sort of application. In National City Bank of N. Y. [v. Republic of China, 348 U. S. 356 (1955)], the Court suggested that the Letter governed in a case involving pre-1952 conduct, though careful consideration of the question was unnecessary there. [Id.], at 361.” Post, at 725 (emphasis and alterations added).
Accord, ante, at 696-697, n. 16; see also, e. g., Arias v. S. S. Fletero, Adm. No. 7492 (ED Va. 1952), reprinted in Digest of United States Practice in International Law 1025-1026 (1977) (State Department deferred decision on a request for immunity filed on May 7, 1952, 12 days before the Tate Letter was issued, and then declined to suggest immunity based on the Tate Letter standard); New York & Cuba Mail Steamship Co. v. Republic of Korea, 132 F. Supp. 684, 685-686 (SDNY 1955) (State Department declined to suggest immunity even though the suit concerned events over a year before the issuance of the Tate Letter); cf. Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 482-483, 497 (1983) (applying the FSIA to a contract that predated the Act).
Fourth, contrary to the dissent‘s contention, see post, at 724-725, 729-730, neither “reliance” nor “expectation” can justify nonretroactivity here. Does the dissent mean by “reliance” and “expectation” something real, i. e., an expropriating nation‘s actual reliance at the time of taking that other nations will continue to protect it from future lawsuits by continuing to apply the same sovereign immunity doctrine? Such actual reliance could not possibly exist in fact.
More likely, the dissent is thinking in terms of “reasonable reliance,” post, at 723, a legal construct designed to protect against unfairness. But a sovereign‘s reliance on future immunity here would have been unreasonable, hence no such protection is warranted. A legally aware King Farouk or any of his counterparts would have or should have known that foreign sovereign immunity respects current status; it does not protect past conduct. And its application is a matter, not of legal right, but of “grace and comity.” Verlinden, supra, at 486; see also Dole, supra, at 479; supra, at 708-709.
Indeed, the dissent itself ignores “reliance” or “expectation” insofar as it assumes an expropriating nation‘s awareness that the Executive Branch could intervene and change the rules, for example, by promulgating the Tate Letter and applying it retroactively to pre-Tate Letter conduct. Compare post, at 725-726, with Brief for Petitioners 11 (Austria expected absolute immunity in 1948), and Brief for United States as Amicus Curiae 8 (same). Nor does the dissent convincingly explain why, if the Executive Branch can change the scope of foreign sovereign immunity with retroactive effect, Congress (with Executive Branch approval) cannot “codify” Executive Branch efforts. H. R. Rep. No. 94-1487, p. 7 (1976) (hereinafter H. R. Rep.); S. Rep. No. 94-1310, p. 9 (1976) (hereinafter S. Rep.); Verlinden, supra, at 488; Digest of United States Practice in International Law 327 (1976).
The dissent‘s solution is even more complicated. It does not choose a cutoff date at all, but would remand for the lower courts to determine whether Austria‘s 1948 conduct would have fallen outside the scope of sovereign immunity under the Tate Letter‘s view of the matter. Post, at 727-728. Of course, Austria in 1948 could not possibly have relied on the Tate Letter, issued four years later. But, more importantly, consider the historical inquiry the dissent sets for the courts: Determine in the year 2004 what the State Department in the years 1952-1976 would have thought about the Tate Letter as applied to the actions of an Austrian
Sixth, other legal principles, applicable to past conduct, adequately protect any actual past reliance and adequately prevent (in the dissent‘s words) “open[ing] foreign nations worldwide to vast and potential liability for expropriation claims in regards to conduct that occurred generations ago, including claims that have been the subject of international negotiation and agreement.” Post, at 730.
For one thing, statutes of limitations, personal jurisdiction and venue requirements, and the doctrine of forum non conveniens will limit the number of suits brought in American courts. See, e. g., 317 F. 3d, at 969-974; Dayton v. Czechoslovak Socialist Republic, 672 F. Supp. 7, 13 (DC 1986) (applying statute of limitations to expropriation claim). The number of lawsuits will be further limited if the lower courts are correct in their consensus view that
Moreover, the act of state doctrine requires American courts to presume the validity of “an official act of a foreign sovereign performed within its own territory.” W. S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int‘l, 493 U. S. 400, 405 (1990); see also ante, at 700-701; Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 423-424 (1964). The
Further, the United States may enter a statement of interest counseling dismissal. Ante, at 701-702;
Finally, a plaintiff may have to show an absence of remedies in the foreign country sufficient to compensate for any taking. Cf. Restatement (3d) § 713, Comment f (“Under international law, ordinarily a state is not required to consider a claim by another state for an injury to its national until that person has exhausted domestic remedies, unless such remedies are clearly sham or inadequate, or their application is unreasonably prolonged“); Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U. S. 687, 721 (1999) (requirement of exhausting available postdeprivation remedies under United States law); Kirby Forest Industries, Inc. v. United States, 467 U. S. 1, 10 (1984) (same). A plaintiff who chooses to litigate in this country in disregard of the postdeprivation remedies in the “expropriating” state may have trouble showing a “tak[ing] in violation of international law.”
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.
This is an important decision for interpreting the
At the outset, here is a summary of my primary concerns with the majority opinion: To reach its conclusion the Court must weaken the reasoning and diminish the force of the rule against the retroactivity of statutes, a rule of fairness based on respect for expectations; the Court abruptly tells foreign nations this important principle of American law is unavailable to them in our courts; this is so despite the fact that treaties and agreements on the subject of expropriation have been reached against a background of the immunity principles the Court now rejects; as if to mitigate its harsh result, the Cоurt adds that the Executive Branch has inherent power to intervene in cases like this; this, however, is inconsistent with the congressional purpose and design of the
I
The
II
A
The question is whether the courts, by applying the statutory principles the FSIA announced, will impose a retroactive effect in a case involving conduct that occurred over 50 years ago, and nearly 30 years before the FSIA‘s enactment. It is our general rule not to apply a statute if its application will impose a retroactive effect on the litigants. See Landgraf v. USI Film Products, 511 U. S. 244 (1994). This is not a rule announced for the first time in Landgraf; it is an old and well-established principle. “It is a principle in the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect.” Dash v. Van Kleeck, 7 Johns. 477, 503 (N. Y. 1811) (Kent, C. J.); see also Landgraf, 511 U. S., at 265 (“[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic“). The principle stems from fundamental fairness concerns. See ibid. (“Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted“).
The FSIA does not meet this exception because it contains no clear statement requiring retroactive effect. The majority concedes this at the outset of its analysis, saying the text of the FSIA “falls short of an ‘expres[s] prescri[ption of] the statute‘s proper reach.‘” Ante, at 694 (alterations in original) (quoting Landgraf, supra, at 280).
In an awkward twist, however, the Court also maintains that the “[Act‘s] language is unambiguous,” ante, at 697, and that it “suggests Congress intended courts to resolve all [foreign sovereign immunity] claims ‘in conformity with the principles set forth’ in the Act, regardless of when the underlying conduct occurred,” ante, at 697-698. If the statute were in fact this clear, the exception would apply. Nothing in our cases suggests that statutory language might be “unambiguous,” yet still “not sufficient to satisfy Landgraf‘s ‘express command.‘” Ante, at 697. If the Court really thinks the statute is unambiguous, it should rest on that premise.
In any event, the Court‘s suggestion that the FSIA does command retroactive application unambiguously is not right. The Court‘s interpretation of
“Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under in
ternational law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this [statute].”
The first two sentences in
If one of the Act‘s principles were that “the Act shall govern all claims, whenever filed, and involving conduct that occurred whenever in time,” the provision would command retroactive application. A statement like this, however, cannot be found in the FSIA. The statute says only that it must be applied “henceforth.” That says no more than that the principles immediately apply from the point of the Act‘s effective date on, the same type of command that Landgraf rejected as grounds for an express command of retroactive application. Cf. 511 U. S., at 257 (analyzing a statutory provision that provided it was to “take effect upon enactment“). As JUSTICE STEVENS noted for the Court in that case: “A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date.” Ibid.
JUSTICE BREYER‘S suggestion that Congress’ intention as to retroactivity can be measured by the fact that the FSIA does not bear the same language as some other statutes and conventions Congress has authored does not change the analysis. See ante, at 708 (concurring opinion). To accept that interpretive approach is to abandon our usual insistence on a clear statement.
B
Because the FSIA does not exempt itself from the usual rule against retroactivity with a clear statement, our cases require that we consider the character of the statute, and of
The essential character of the FSIA is jurisdictional. The conclusion that it allows (or denies) jurisdiction follows from the language of the statute. See
The statute‘s mechanism of establishing jurisdictional effects (i. e., either allowing jurisdiction or denying it) has important implications for the retroactivity question. On the one hand, jurisdictional statutes, as a class, tend not to impose retroactive effect. As the Court explained in Landgraf: “Application of a new jurisdictional rule usually ‘takes away no substantive right but simply changes the tribunal that is to hear the case.’ Present law normally governs in such situations because jurisdictional statutes ‘speak to the power of the court rather than to the rights or obligations of the parties.‘” 511 U. S., at 274 (citations omitted).
On the other hand, there is a subclass of statutes that, though jurisdictional, do impose retroactive effect. These are statutes that confer jurisdiction where before there was none. That is, they altogether create jurisdiction. We explained the distinction in a unanimous opinion in Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 951 (1997) (citations omitted):
“Statutes merely addressing which court shall have jurisdiction to entertain a particular cause of action can fairly be said merely to regulate the secondary conduct of litigation and not the underlying primary conduct of the parties. Such statutes affect only where a suit may be brought, not whether it may be brought at all. The 1986 amendment, however, does not merely allocate jurisdiction among forums. Rather, it creates jurisdiction where none previously existed; it thus speaks not just to the power of a particular court but to the substantive rights of the parties as well. Such a statute, even though phrased in ‘jurisdictional’ terms, is as much subject to our presumption against retroactivity as any other.”
The principles of Hughes Aircraft establish that retroactivity analysis of a jurisdictional statute is incomplete unless it asks whether the provision confers jurisdiction where there was none before. Again, this is common ground between the majority and this dissent. The majority recognizes the import of Hughes Aircraft‘s holding and affirms that courts may not apply statutes that confer jurisdiction over a cause of action for which no jurisdiction existed when the sued-upon conduct occurred. “Such statutes,” the majority acknowledges, “‘even though phrased in “jurisdictional” terms, [are] as much subject to our presumption against retroactivity as any other[s].‘” Ante, at 695 (alterations in original) (quoting Hughes Aircraft, supra, at 951).
If the FSIA creates new jurisdiction, Hughes Aircraft controls and instructs us not to apply it to cases involving preenactment conduct. On the other hand, if the FSIA did not create new jurisdiction—including where it in fact stripped previously existing jurisdiction from the courts—we may apply its statutory terms without fear of working any retro
C
To this point, then, I am in agreement with the Court on certain relevant points—the FSIA does not contain a clear retroactivity command; the statute is jurisdictional in nature; and jurisdictional statutes impose retroactive effect when they confer jurisdiction where none before existed. Now, however, our paths diverge. For though the majority concedes these critical issues, it does not address the question to which they lead: Does the FSIA confer jurisdiction where before there was none? Rather than asking that obvious question, the Court retreats to non sequitur. After this recitation of the Hughes Aircraft rule and with no causal reasoning from it, the Court concludes: “Thus, Landgraf‘s default rule does not definitively resolve this case.” Ante, at 696. It requires a few steps to undertake the analysis the Court omits, but in the end the proper conclusion is that, assuming the court on remand found immunity existed under the pre-FSIA regime, the statute does create jurisdiction where there was none before.
The analysis begins with 1948, when the conduct occurred. See INS v. St. Cyr, 533 U. S. 289, 321 (2001) (“[T]he judgment whether a particular statute acts retroactively ‘should be informed and guided by “familiar considerations of fair notice, reasonable reliance, and settled expectations“‘” (quoting Martin v. Hadix, 527 U. S. 343, 358 (1999), in turn quoting Landgraf, supra, at 270)). The parties’ expectations were then formed by an emerging or common-law frame
Parties in 1948 would have expected courts to apply this general law of foreign sovereign immunity in the future, and so also to apply whatever rules the courts “discovered” (if one subscribes to Blackstone‘s view of common law) or “created” (if one subscribes to Holmes‘) in the intervening time between the party‘s conduct and its being subject to suit. Compare 1 W. Blackstone, Commentaries *68 (“[T]he only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it“), with Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 466 (1897) (“Behind the logical form [of common-law decisionmaking] lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding“). To conduct the analysis, then, we should ask how the jurisdictional effects the FSIA creates compare to those that would govern were the prior regime still in force.
There is little dispute that in 1948 foreign sovereigns, and all other litigants, understood foreign sovereign immunity law to support three valid expectations. (1) Nations could expect that a baseline rule of sovereign immunity would apply. (2) They could expect that if the Executive made a statement on the issue of sovereign immunity that would be controlling. And (3), they could expect that they would be able to petition the Executive for intervention on their behalf. See National City Bank of N. Y. v. Republic of China, 348 U. S. 356, 358-361 (1955) (summing up the Court‘s approach to sovereign immunity questions); id., at 366-368 (Reed, J., dissenting) (summing up the same principles).
These three expectations were little different in 1976, before the FSIA was passed. The Tate Letter did announce the policy of restrictive foreign sovereign immunity, and this was an important doctrinal development. The policy, how
The Executive‘s post-Tate Letter practices and a statement by the Court confirm this is the correct way to understand both the operation of the general law of foreign relations and the expectations it built. After the Tate Letter‘s issuance, the Executive evaluated suits involving pre-Tate Letter conduct under the Letter‘s new standard when determining whether to submit suggestions of immunity to the courts. The Court, likеwise, seems to have understood the Tate Letter to require this sort of application. In National City Bank of N. Y., the Court suggested that the Letter governed in a case involving pre-1952 conduct, though careful consideration of the question was unnecessary there. 348 U. S., at 361.
The governing weight the Tate Letter had as a statement of Executive policy does not detract from the third expectation foreign sovereigns continued to have—that they could petition the Executive for case-specific statements. Thus, in National City Bank of N. Y. the Court took note that the Government had not submitted a case-specific suggestion as to immunity. See id., at 364 (“[O]ur State Department neither has been asked nor has it given the slightest intimation that in its judgment allowance of counterclaims in such a situation would embarrass friendly relations with the Republic of China“).
Today, to measure a foreign sovereign‘s expectation of liability for conduct committed in 1948, the Court should apply the three discussed, interlocking principles of law, which the parties then expected. The Court of Appeals did not address the question in this necessary manner. Rather than determining how the jurisdictional result produced by the FSIA differs from the result a court would reach if it applied the legal principles that governed before the enactment of
Answering the legal question, in contrast, requires applying the principles noted above: We assume a baseline of sovereign immunity and then look to see if there is any Executive statement on the sovereign immunity issue that displaces the presumption of immunity. There is, of сourse, at least one Executive statement on the issue that displaces the immunity presumption to some degree. It is the Tate Letter itself. By the Tate Letter the Executive established, as a general rule, that the doctrine of restrictive sovereign immunity would be followed. In general, the doctrine provided immunity for suits involving public acts and denied it for suits involving commercial or private acts. 26 Dept. State Bull., at 984. These principles control, as the Executive has taken no case-specific position in the instant matter. If petitioners’ conduct would not be subject to suit under the Tate Letter principles, the FSIA cannot alter that result without imposing retroactive effect, creating new jurisdiction in American courts.
Petitioners and the United States, appearing as amicus curiae, argue that the Tate Letter doctrine would grant immunity (i. e., deny jurisdiction) for suits involving expropriation. They say the Tate Letter rules contain no principle that parallels
“The expropriation exception . . . was a new development in the doctrine of sovereign immunity when the FSIA was enacted . . . . [I]n Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F. 2d 354 (CA2 1964), cert. denied, 381 U. S. 934 (1965), [t]he court explained that, even under the restrictive theory of sovereign immunity, foreign states continued to enjoy immunity with respect to . . . suits respecting the ‘nationalization’ of property.” Brief for United States as Amicus Curiae 12.
This argument may be correct in the end; but, it should be noted, the petitioners’ reliance on Victory Transport Inc. v. Comisaria General, 336 F. 2d 354 (CA2 1964), is not conclusive. Victory Transport does not say that nationalizations of property are per se exempt under the restrictive theory of sovereign immunity. The Court of Appeals for the Second Circuit said:
“The purpose of the restrictive theory of sovereign immunity is to try to accommodate the interest of individuals doing business with foreign governments in having their legal rights determined by the courts, with the interest of foreign governments in being free to perform certain political acts without undergoing the embarrassment or hindrance of defending the propriety of such acts before foreign courts. Such [immune] acts are generally limited to the following categories:
. . . .
“(2) legislative acts, such as nationalization.” Id., at 360 (citations omitted).
As the court‘s language makes clear, the pertinent cаtegory of exempt action is legislative action, of which nationalization was but one example. The expropriation alleged in this case was not a legislative act.
Petitioners can still prevail by showing that there would have been no jurisdiction under the pre-FSIA governing
D
By declaring that this statute is not subject to the usual presumption against retroactivity, and so avoiding the critical issue in this case, the Court puts the force and the validity of our precedent in Hughes Aircraft into serious question. The Court, in rejecting the usual analysis, states three rationales to justify its approach. The arguments neither distinguish this case from Hughes Aircraft nor suffice to explain rejecting the rule against retroactivity.
The Court suggests the retroactivity analysis should not apply because the rights at issue are not private rights. See ante, at 696 (“[The] antiretroactivity presumption, while not strictly confined to cases involving private rights, is most helpful in that context“). This is unconvincing. First, the language from Landgraf on which the Court relies undercuts its position. It confirms, in clear terms, that retroactivity presumptions work equally in favor of governments. Per JUSTICE STEVENS, the Court said:
“While the great majority of our decisions relying upon the antiretroactivity presumption have involved intervening statutes burdening private parties, we have applied the presumption in cases involving new monetary
obligations that fell only on the government.” 511 U. S., at 271, n. 25.
Even if Landgraf‘s reference to private rights could be read to establish that retroactivity аnalysis does not strictly protect government—and I do not see how that is possible in light of the above-quoted language—the Landgraf passage refers to the Federal Government. If the distinction mattered for retroactivity purposes, presumably it would have been on the basis that Congress, by virtue of authoring the legislation, is itself fully capable of protecting the Federal Government from having its rights degraded by retroactive laws. Private parties, it might be said, do not have the same built-in assurance. Here, of course, the Federal Government is not a party; instead a foreign government is. Foreign governments are as vulnerable as private parties to the disruption caused by retroactive laws. Indeed, foreign sovereigns may have less recourse than private parties to prevent or remedy retroactive legislation, since they cannot hold Congress responsible through the election process. The Court‘s private-rights argument, therefore, does not sustain its departure from our usual presumption against retroactivity.
The majority tries to justify departing from our usual principles in a second way. It argues that the purposes of foreign sovereign immunity are not concerned with allowing “foreign states and their instrumentalities to shape their conduct in reliance on the promise of future immunity.” Ante, at 696. JUSTICE BREYER takes the suggestion further. He argues not that foreign sovereign immunity doctrine is not concerned with reliance interests but, even further, that in fact foreign sovereigns have no reliance interests in receiving immunity in our courts. See ante, at 709-711. This reasoning overlooks the plain fact that there are reliance interests of vast importance involved, interests surely as important as those stemming from contract rights between two private parties. As the Executive has made
In addition, the statement that the purposes of foreign sovereign immunity have not much to do with the presumption against retroactivity carries little weight; the presumption against retroactivity has independent justification. The Court has noted this, saying that the purposes of the underlying substantive law are not conclusive of the retroactivity analysis. “It will frequently be true . . . that retroactive application of a new statute would vindicate its purpose more fully. That consideration, however, is not sufficient to rebut the presumption.” Landgraf, 511 U. S., at 285-286. As a result, diminished concerns of unfair surprise and upset expectations—even assuming they existed—do not displace the usual presumption. That is why in Landgraf, though “concerns of unfair surprise and upsetting expectations [were] attenuated in the case of intentional employment discrimina
The Court, lastly, adds in a footnote that the “FSIA differs from the statutory amendment at issue in Hughes Aircraft” because in Hughes Aircraft the jurisdictional limitation attached directly to the cause of action and so ensured that suit could be brought only in accordance with the jurisdictional provision (and any changes to it). Ante, at 695, n. 15. With the FSIA, in contrast, the jurisdictional limitation is not attached to the cause of action. The result, the Court implies, is that even if a pre-FSIA jurisdictional bar applied in American courts, suit on the California cause of action might still have been able to have been brought in foreign courts, and such availability of suit would defeat retroactivity concerns. Ante, at 695-696, n. 15 (“The Act does not . . . purport to limit foreign countries’ decisions about what claims against which defendants their courts will entertain“); see also ante, at 703 (SCALIA, J., concurring). What is of concern in the retroactivity analysis that Hughes Aircraft sets out, however, is the internal integrity of American statutes, not of whether an American law allows suit where before none was allowed elsewhere in the world. This is unsurprising, as the task of canvassing what causes of action foreign countries might have allowed before a new jurisdictional regime made such suits also viable in American courts would be a most difficult task to assign American courts.
In the end, the majority turns away from our usual retroactivity analysis because “this [is a] sui generis context.” Ante, at 696. Having created a new, extra exception that frees it from the usual analysis, it can conclude simply that the usual rule “does not control the outcome in this case.” Ante, at 692. The implications of this holding are not entirely clear, for the new exception does not rest on any apparent principle.
The conclusion to which the sui generis rule leads the Court shows the rule lacks a principled basis: “[W]e think it more appropriate, absent contraindications, to defer to the most recent [decision by the political branches on the foreign sovereign immunity question]—namely, the FSIA.” Ante, at 696. The question, however, is not whether the FSIA governs, but how to interpret the FSIA. The Court seems to think the FSIA implicitly adopts a presumption оf retroactivity, though our cases instruct just the opposite. “[I]n Hughes Aircraft we . . . rejected a presumption favoring retroactivity for jurisdiction-creating statutes.” Lindh, 521 U. S., at 342, n. 3 (REHNQUIST, C. J., joined by SCALIA, KENNEDY, and THOMAS, JJ., dissenting).
JUSTICE BREYER would supplement the rationale for the Court‘s deciding the case outside the bounds of our usual mode of retroactivity analysis. He says the Court can take this path because sovereign immunity “is about a defendant‘s status at the time of suit, not about a defendant‘s conduct before the suit.” Ante, at 708. The argument is a variant of that made by respondent. See Brief for Respondent 27 (“Dole Food controls the result in this case“). Respondent‘s argument fails, of course, because in this case the defendants’ status at the time of suit is that of the sovereign, not that of private parties. That distinction alone makes misplaced reliance on Dole Food Co. v. Patrickson, 538 U. S. 468 (2003)
We should not ignore the statutory retroactivity analysis just because the parties and the Court have failed to consider it before. See ante, at 710 (BREYER, J., concurring) (relying on the fact that in Verlinden the Court applied the FSIA to a contract that predated the Act). “‘[T]his Court has never considered itself bound [by prior sub silentio holdings] when a subsequent case finally brings the jurisdictional issue before us.’ Hagans v. Lavine, 415 U. S. 528, 535, n. 5 (1974).” Will v. Michigan Dept. of State Police, 491 U. S. 58, 63, n. 4 (1989) (alteration in original). Reliance on the fact that the immunity principles were applied retroactively in the common-law context of the pre-FSIA regime is also irrelevant. See ante, at 709-710 (BREYER, J., concurring). This case concerns the retroactive effect of enacted statutоry law, not of court decisions interpreting the common law.
III
Today‘s decision contains another proposition difficult to justify and that itself does considerable damage to the FSIA. Abandoning standard retroactivity principles, the Court attempts to compensate for the harsh results it reaches by inviting case-by-case intervention by the Executive. This does serious harm to the constitutional balance between the political branches.
The Court instead reaches its conclusion about the Executive‘s role by reliance on the general constitutional principle that the Executive has a “‘“vast share of responsibility for the conduct of our foreign relations.“‘” ante, at 702 (quoting American Ins. Assn. v. Garamendi, 539 U. S. 396, 414 (2003)). This prospective constitutional conclusion, which the Court offers almost as an aside, has fundamental implications for the future of the statute and raises serious separation-of-powers concerns.
The question the Court seems inclined to resolve—can the foreign affairs power of the Executive supersede a statutory scheme set forth by Congress—is simply not presented by the facts of this case. We would confront the question only if the case involved postenactment conduct and if the Executive had filed a suggestion of immunity, which, by its insistence, superseded the statute‘s directive. Those circumstances would present a difficult question. Compare
The Court makes a serious mistake, in my view, to address the question when it is not presented. It magnifies this error by proceeding with so little explanation, particularly in light of the strong arguments against its conclusion. The Solicitor General, on behalf of the Executive, agrees that the statute “presents the sole basis for civil litigants to obtain jurisdiction over a foreign state in United States courts.” Brief for United States as Amicus Curiae 1. This understanding is supported by the lack of textual support for the contrary position in the Act and by the majority‘s own assessment of the Act‘s purposes.
The Court‘s abrupt announcement that the FSIA may well be subject to Executive override undermines the Act‘s central purpose and structure. As the Court acknowledges, before the Act, “immunity determinations [had been thrown] into some disarray, as ‘foreign nations often placed diplomatic pressure on the State Department,’ and political considerations sometimes led the Department to file ‘suggestions of immunity in cases where immunity would not have been available under the restrictive theory.‘” Ante, at 690 (quoting Verlinden, 461 U. S., at 487). See also supra, at 716-717. Congress intended the FSIA to replace this old and unsatisfactory methodology of Executive decisionmaking. Ibid. The President endorsed the objective in full, recommending the bill upon its introduction in Congress, H. R. Rep., at 6, and signing the bill into law upon its presentment. The majority‘s surprising constitutional con
The Court adds a disclaimer that it “express[es] no opinion on the question whether such deference should be granted [to the Executive] in cases covered by the FSIA.” Ante, at 702. The disclaimer, however, is inadequate to remedy the harm done by the invitation, for it is belied by the Court‘s own terms: Executive statements “suggesting that courts decline to exercise jurisdiction in particular cases implicating foreign sovereign immunity . . . might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.” Ante, at 701-702 (citing as an example a case in which Executive foreign policy superseded state law). Taking what the Court says at face value, the Court does express an opinion on the question: Its opinion is that the Executive statement may well be entitled to deference, and so may well supersede federal law that gives courts jurisdiction.
If, as it seems, the Court seeks to free the Executive from the dictates of enacted law because it fears that to do otherwise would consign some litigants to an unfair retroactive application of the law, it adds illogic to the illogic of its own creation. Only application of our traditional analysis guards properly against unfair retroactive effect, “ensur[ing] that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness.” Landgraf, 511 U. S., at 268.
Where postenactment conduct is at stake, the majority‘s approach promises unfortunate disruption. It promises to reintroduce Executive intervention in foreign sovereign immunity determinations to an even greater degree than existed before the FSIA‘s enactment. Before the Act, foreign nations only tended to need the Executive‘s protection from the courts’ jurisdiction in instances involving private acts. The Tate Letter ensured their public acts would remain im
With the FSIA, Congress tried to settle foreign sovereigns’ prospective expectations for being subject to suit in American courts and to ensure fair and evenhanded treatment to our citizens who have claims against foreign sovereigns. See supra, at 716-717. This was in keeping with strengthening the Executive‘s ability to secure negotiated agreements with foreign nations against whom our citizens may have claims. Over time, agreements of this sort have been an important tool for the Executive. See, e. g., Agreement Relating to the Agreement of Oct. 24, 2000, Concerning the Austrian Fund “Reconciliation, Peace and Cooperation,” Jan. 23, 2001, U. S.-Aus., 2001 WL 935261 (settling claims with Austria); Claims of U. S. Nationals, Nov. 5, 1964, U. S.-Yugo., 16 U. S. T. 1, T. I. A. S. No. 5750 (same with Yugoslavia); Settlement of Claims of U. S. Nationals, July 16, 1960, U. S.-Pol., 11 U. S. T. 1953, T. I. A. S. No. 4545 (same with Poland). Uncertain prospective application of our foreign sovereign immunity law may weaken the Executive‘s ability to secure such agreements by compromising foreign sovereigns’ ability to predict the liability they face in our courts and so to assess the ultimate costs and benefits of any agreement. See supra, at 729-730 (citing Brief for United States as Amicus Curiae).
* * *
The presumption against retroactivity has comprehended, and always has been intended to comprehend, the wide universe of cases that a court might confront. That includes
“To the extent [the Court] contends that only statutes with one of [Landgraf‘s particularly stated] effects are subject to our presumption against retroactivity, [it] simply misreads our opinion in Landgraf. The language upon which [it] relies does not purport to define the outer limit of impermissible retroactivity. Rather, our opinion in Landgraf, like that of Justice Story, merely described that any such effect constituted a sufficient, rather than a necessary, condition for invoking the presumption against retroactivity.” 520 U. S., at 947.
The Court‘s approach further leads to the unprecedented conclusion that Congress’ Article I power might well be insufficient to accomplish the central objective of the FSIA. The Court, in addition, injects great prospective uncertainty into our relations with foreign sovereigns. Application of our usual presumption against imposing retroactive effect would leave powerful precedent intact and avoid these difficulties.
With respect, I dissent.
Notes
“The critical issue, I think, is not whether the rule affects ‘vested rights,’ or governs substance or procedure, but rather what is the relevant activity that the rule regulates. Absent clear statement otherwise, only such relevant activity which occurs after the effective date of the statute is covered. Most statutes are meant to regulate primary conduct, and hence will not be applied in trials involving conduct that occurred before their effective date. But other statutes have a different purpose and therefore a different relevant retroactivity event.” 511 U. S., at 291 (opinion concurring in judgment).