Case of the Day: Rubin v. Iran

The case of the day is Rubin v. Islamic Republic of Iran (S. Ct. 2018). The case arose out of a 1997 suicide bombing in Jerusalem, carried out by Hamas. The plaintiffs were US citizens who were wounded in the attack or who were relatives of the injured. They sued Iran in the District Court in Washington, claiming that Iran was liable because it had provided material support to Hamas. Iran was not immune from jurisdiction because it was a designated state sponsor of terrorism and the claim arose out of an act of terrorism. The case resulted in a $71.5 million default judgment.

The plaintiffs brought an action in Chicago, seeking to attach and then levy execution against a collection of clay tablets known as the Persepolis Collection, on loan from the Iranian state to the Oriental Institute of the University of Chicago. The question in the case was whether the collection was immune from execution in light of 28 U.S.C. § 1610(g)(1), which provides an exception to the ordinary rule of immunity for execution. The core of the statute provides:

the property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of execution, and execution, upon that judgment as provided in this section, regardless of—

A. the level of economic control over the property by the government of the foreign state;
B. whether the profits of the property go to that government;
C. the degree to which officials of that government manage the property or otherwise control its daily affairs;
D. whether that government is the sole beneficiary in interest of the property; or
E. whether establishing the property as a separate entity would entitle the foreign state to benefits in United States courts while avoiding its obligations.

The question was: does § 1610(g) create an exception to immunity for all property of a foreign state in a terrorism case? Or does the statute simply identify the particular kinds of property that is subject to execution without abrogating the immunity that attaches to that property, such that some other provision in § 1610 must apply if the property is to be taken on execution?

The Court sided with Iran and with the US government, holding that § 1610(g) does not create a freestanding exception to execution immunity. The reasoning was largely textual, focusing on the difference between § 1610(g) and other provisions of the statute that unambiguously remove immunity, and also noting the traditional understanding that only the property a state used in its commercial activities should be excepted from the ordinary rule of immunity.

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