No. 18-948

In the Supreme Court of the United States
IN RE GRAND JURY SUBPOENA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTIONS PRESENTED

1. Whether the Foreign Sovereign Immunities Act
of 1976 (FSIA or Act), 28 U.S.C. 1330, 1602 et seq., confers blanket immunity on foreign-state-owned enterprises from all criminal proceedings, including proceedings to enforce a federal grand jury subpoena, in the
United States.
2. Whether the FSIA prohibited the district court
from imposing monetary contempt sanctions on a foreignstate-owned enterprise for violation of a court order to
comply with a grand jury subpoena.

(I)

 TABLE OF CONTENTS

Page
Opinion below ................................................................................ 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 2
Argument....................................................................................... 9
Conclusion ................................................................................... 29
TABLE OF AUTHORITIES

Cases:
Af -Cap, Inc. v. Republic of Congo, 462 F.3d 417
(5th Cir. 2006), cert. dismissed, 549 U.S. 1275
(2007) .................................................................................... 28
Alfred Dunhill of London , Inc. v. Republic of Cuba,
425 U.S. 682 (1976).............................................................. 19
Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428 (1989) .................................. 6, 14, 15, 16
Autotech Techs. LP v. Integral Research & Dev.
Corp., 499 F.3d 737 (7th Cir. 2007), cert. denied,
552 U.S. 1231 (2008)............................................................ 28
Community Fin. Grp., Inc. v. Republic of Kenya,
663 F.3d 977 (8th Cir. 2011) ............................................... 22
FG Hemisphere Assocs., LLC v. Democratic
Republic of Congo, 637 F.3d 373
(D.C. Cir. 2011) ......................................................... 7, 27, 28
Goar v. Compania Peruana de Vapores,
688 F.2d 417 (5th Cir. 1982) ............................................... 22
Grand Jury Investigation of Shipping Indus., In re,
186 F. Supp. 298 (D.D.C. 1960) ......................................... 18
Grand Jury Proceeding Related To M/V Deltuva,
In re, 752 F. Supp. 2d 173 (D.P.R. 2010) .................... 10, 18
Illinois v. Lidster, 540 U.S. 419 (2004) ................................ 15

(III)

 IV
Cases—Continued:

Page

Investigation of World Arrangements, In re,
13 F.R.D. 280 (D.D.C. 1952) .............................................. 18
Janvey v. Libyan Inv. Auth., 840 F.3d 248
(5th Cir. 2016) ...................................................................... 22
Keller v. Central Bank of Nigeria, 277 F.3d 811
(6th Cir. 2002) ............................................................ 6, 20, 21
McKeel v. Islamic Republic of Iran, 722 F.2d 582
(9th Cir. 1983), cert. denied, 469 U.S. 880 (1984) ............. 22
McWilliams v. Dunn, 137 S. Ct. 1790 (2017) ..................... 24
Mobil Cerro Negro, Ltd. v. Bolivarian Republic of
Venezuela, 863 F.3d 96 (2d Cir. 2017)............................... 22
Pangang Grp. Co., In re, 901 F.3d 1046
(9th Cir. 2018) ...................................................................... 18
Pasquantino v. United States, 544 U.S. 349 (2005) ........... 12
Republic of Argentina v. NML Capital, Ltd.
573 U.S. 134 (2014)........................................................ 10, 25
Republic of Austria v. Altmann, 541 U.S. 677 (2004) ....... 10
Republic of Iraq v. Beaty, 556 U.S. 848 (2009) ............... 2, 19
Republic of Mexico v. Hoffman, 324 U.S. 30 (1945) ............ 2
Rex v. Cia. Pervana de Vapores, S. A., 660 F.2d 61
(3d Cir. 1981), cert. denied, 456 U.S. 926 (1982) .............. 22
Rubin v. Islamic Republic of Iran, 138 S. Ct. 816
(2018) .............................................................................. 19, 20
Ruggiero v. Compania Peruana de Vapores “Inca
Capac Yupanqui,” 639 F.2d 872 (2d Cir. 1981) ............... 22
Samantar v. Yousuf, 560 U.S. 305
(2010). ........................................................ 2, 10, 11, 12, 14, 23
Sealed Case, In re, 825 F.2d 494 (D.C. Cir. 1987) .............. 18
SerVaas Inc. v. Republic of Iraq, 653 Fed. Appx. 22
(2d Cir. 2011) ....................................................................... 27
Shapiro v. Republic of Bolivia, 930 F.2d 1013
(2d Cir. 1991) ....................................................................... 22

 V
Cases—Continued:

Page

Southway v. Central Bank of Nigeria, 198 F.3d 1210
(10th Cir. 1999) .................................................................... 23
The Schooner Exch. v. McFaddon, 11 U.S.
(7 Cranch) 116 (1812) .......................................................... 19
United States v. Grubbs, 547 U.S. 90 (2006) ....................... 24
United States v. Hendron, 813 F. Supp. 973
(E.D.N.Y. 1993) ................................................................... 10
United States v. Ho, No. 16-cr-46, 2016 WL 5875005
(E.D. Tenn. Oct. 7, 2016) .............................................. 18, 23
United States v. Jasin, No. 91-cr-602,
1993 WL 259436 (E.D. Pa. July 7, 1993)........................... 18
United States v. Noriega, 117 F.3d 1206
(11th Cir. 1997) .............................................................. 10, 23
United States v. Sinovel Wind Grp. Co., 794 F.3d 787
(7th Cir. 2015) ...................................................................... 12
United States v. Texas, 507 U.S. 529 (1993) ....................... 13
Verlinden B. V. v. Central Bank of Nigeria,
461 U.S. 480 (1983).................................................. 2, 3, 9, 16
Williams v. Shipping Corp. of India, 653 F.2d 875
(4th Cir. 1981), cert. denied, 455 U.S. 982 (1982)............. 22
Wolf v. Federal Republic of Germany, 95 F.3d 536
(7th Cir. 1996), cert. denied, 520 U.S. 1106 (1997) ........... 22
Statutes and rule:
Foreign Sovereign Immunities Act of 1976,
28 U.S.C. 1330, 1602 et seq. .................................................. 2
28 U.S.C. 1330 ............................................................ 13, 16
28 U.S.C. 1330(a) ................................................... 3, 10, 13
28 U.S.C. 1332 .................................................................. 16
28 U.S.C. 1391(f ).......................................................... 3, 10
28 U.S.C. 1441(d) ......................................................... 3, 10
28 U.S.C. 1602 .................................................................. 10

 VI
Statutes and rule—Continued:

Page

28 U.S.C. 1604 ................................................ 12, 13, 16, 20
28 U.S.C. 1604-1607............................................... 3, 15, 24
28 U.S.C. 1605 .................................................................. 12
28 U.S.C. 1605(a) ......................................................... 7, 12
28 U.S.C. 1605(a)(2) ......................................................... 12
28 U.S.C. 1605(a)(5) ......................................................... 12
28 U.S.C. 1605A ............................................................... 13
28 U.S.C. 1608(a) ............................................................. 10
28 U.S.C. 1608(b) ............................................................. 10
28 U.S.C. 1608(d) ......................................................... 3, 10
28 U.S.C. 1609 .................................................................... 3
28 U.S.C. 1609-1611................................................... 24, 26
28 U.S.C. 1610-1611........................................................... 3
28 U.S.C. 1610(a)(2) ................................................... 27, 29
28 U.S.C. 1610(b)(2) ...................................... 26, 27, 28, 29
Racketeer Influenced and Corrupt Organizations
Act:
18 U.S.C. 1961(1)(B) ........................................................ 20
18 U.S.C. 1962(b)-(d) ....................................................... 20
18 U.S.C. 1964(c) ............................................................. 20
18 U.S.C. 3231 ............................................................... passim
28 U.S.C. 1391(f ) ................................................................ 3, 10
Foreign States Immunities Act of 1981
(South Africa):
§ 1(2)(i) .............................................................................. 17
§ 2(3) ................................................................................. 17
§ 15(1) ............................................................................... 17
State Immunity Act, R.S.C. 1985, c. S-18, § 18
(Canada)............................................................................... 17

 VII
Statutes and rule—Continued:

Page

State Immunity Act, Ch. 313, Pt. 3 (rev. 2014 ed.)
(Singapore):
§ 16 .................................................................................... 18
§ 19(2)(b) ........................................................................... 17
State Immunity Act 1978, c. 33 (United Kingdom):
§ 14(2)(a) ........................................................................... 17
§ 16(4) ............................................................................... 17
The State Immunity Ordinance No. 6 of 1981
(Pakistan):
§ 15 .................................................................................... 18
§ 17(2)(b) ........................................................................... 17
Fed. R. Crim. P. 17(c) ........................................................... 17
Miscellaneous:
Black’s Law Dictionary (10th ed. 2014) ............................. 26
Joseph W. Dellapenna, Suing Foreign Governments
and Their Corporations (2d ed. 2003) .............................. 11
Andrew Dickinson, State Immunity and StateOwned Enterprises, 10 Bus. L. Int’l 97 (2009)................. 17
Hazel Fox, The Law of State Immunity (3d ed. 2013) ...... 17
H.R. Rep. No. 1487, 94th Cong., 2d Sess.
(1976) ...............................................................3, 11, 12, 13, 25
Hearing Before the Subcomm. on Administrative
Law and Governmental Relations of the House
Comm. on the Judiciary on H.R. 1149, H.R. 1689,
and H.R. 1888, 100th Cong., 1st Sess. (1987) .................. 25
William C. Hoffman, The Separate Entity Rule in
International Perspective, 65 Tul. L. Rev. 535
(1991) .................................................................................... 17

 VIII
Miscellaneous—Continued:

Page

Jurisdiction of U.S. Courts in Suits Against Foreign
States: Hearing Before the Subcomm. on
Administrative Law and Governmental Relations
of the House Comm. on the Judiciary on H.R.
11315, 94th Cong., 2d Sess. (1976) .............................. 11, 25
Letter from Jack B. Tate, Acting Legal Adviser,
U.S. Dep’t of State, to Philip B. Perlman,
Acting Att’y Gen. (May 19, 1952), reprinted in
Alfred Dunhill of London , Inc. v. Republic of
Cuba, 425 U.S. 682 (1976) .................................................... 2
Restatement (Fourth) of Foreign Relations Law of
the United States (2018) .................................................... 23

 In the Supreme Court of the United States
No. 18-948
IN RE GRAND JURY SUBPOENA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The public opinion of the court of appeals (Supp.
App. 1a-27a) is published at 912 F.3d 623. 1
JURISDICTION

The judgment of the court of appeals (Pet. App. 1a6a) was entered on December 18, 2018. On January 22,
2019, this Court granted petitioner’s motion for leave to
file a petition for a writ of certiorari under seal, and the
petition was docketed on that date. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).
Petitioner has submitted a supplemental brief in support of its
petition for a writ of certiorari. This brief cites the appendix to that
supplemental brief as “Supp. App.” Petitioner has also submitted
sealed and unsealed appendices to the petition for a writ of certiorari. This brief cites the unsealed petition appendix as “Pet. App.”
The court of appeals has issued a sealed version of its opinion and a
third version containing ex parte information. The petition does not
raise issues addressed in the sealed or ex parte opinions. If the
Court so requests, the government will lodge those opinions with
the Clerk.
1

(1)

 2
STATEMENT

A federal grand jury in the District of Columbia issued a subpoena to petitioner, a commercial enterprise
doing business in the United States and owned by a foreign government. Petitioner refused to comply and
moved to quash the subpoena, arguing in relevant part
that, because it is owned by a foreign government, the
Foreign Sovereign Immunities Act of 1976 (FSIA or
Act), 28 U.S.C. 1330, 1602 et seq., immunizes it from all
criminal process. The district court rejected that and
petitioner’s other challenges, ordered compliance, and
held petitioner in civil contempt when it refused to comply. The court of appeals affirmed. Supp. App. 1a-27a;
Pet. App. 1a-6a.
1. a. “[F]oreign sovereign immunity is a matter of
grace and comity.” Verlinden B. V. v. Central Bank of
Nigeria, 461 U.S. 480, 486 (1983). Historically, the grant
or denial of immunity was “the case-by-case prerogative
of the Executive Branch.” Republic of Iraq v. Beaty,
556 U.S. 848, 857 (2009); see Samantar v. Yousuf,
560 U.S. 305, 311-313, 320 (2010). That rule flowed from
the Executive’s constitutional primacy in foreign affairs. See Republic of Mexico v. Hoffman, 324 U.S. 30,
34-36 (1945).
Until 1952, if a foreign state sought immunity from a
private civil action, the Executive generally requested
a court to recognize immunity. Samantar, 560 U.S.
at 311-312. In 1952, the Executive Branch announced a
new practice for “granting immunity from suit to foreign governments,” under which immunity would attach
to “sovereign or public acts,” but not “private acts.”
Letter from Jack B. Tate, Acting Legal Adviser, U.S.
Dep’t of State, to Philip B. Perlman, Acting Att’y Gen.

 3
(May 19, 1952), reprinted in Alfred Dunhill of London  ,
Inc. v. Republic of Cuba, 425 U.S. 682, 711-715 (1976).
The new policy “proved troublesome.” Verlinden,
461 U.S. at 487. Foreign nations “often placed diplomatic pressure on the State Department” to urge immunity in private actions, and “political considerations
led to suggestions of immunity in cases where immunity
would not have been available” under the new policy.
Ibid. Consequently, “private litigant[s]” faced “considerable uncertainty” about whether their ordinary legal
disputes would be blocked as a result. H.R. Rep. No.
1487, 94th Cong., 2d Sess. 9 (1976) (1976 House Report).
b. In 1976, Congress passed the FSIA to address
those problems. Verlinden, 461 U.S. at 488. Consistent
with that purpose, “the Act contains a comprehensive
set of legal standards governing claims of immunity in
every civil action against a foreign state or its political
subdivisions, agencies, or instrumentalities.” Ibid. The
Act confers immunity from the jurisdiction of federal
and state courts, subject to existing treaties, and sets
out exceptions to that immunity. 28 U.S.C. 1604-1607.
The Act further provides for federal jurisdiction over
“any nonjury civil action” against a foreign state as to
which it “is not entitled to immunity,” 28 U.S.C. 1330(a),
and provides for removal of “civil action[s]” from state
to federal court, 28 U.S.C. 1441(d). The Act defines
venue in “civil action[s],” 28 U.S.C. 1391(f  ), and sets
time limits for “an answer or other responsive pleading
to the complaint,” 28 U.S.C. 1608(d). The Act also provides for immunity from “attachment arrest and execution” of judgment, 28 U.S.C. 1609, and sets out exceptions to that immunity that partially parallel the exceptions to immunity from suit, 28 U.S.C. 1610-1611.

 4
2. Petitioner is a commercial enterprise owned by a
foreign country. Pet. App. 1a.2 The government served
on petitioner at a U.S. office a grand jury subpoena
seeking specified records. Ibid.; Supp. App. 24a (Williams, J., concurring in part and concurring in the judgment). Petitioner moved to quash the subpoena, arguing in relevant part that it is immune from the jurisdiction of U.S. courts under the FSIA. Pet. App. 2a; Supp.
App. 2a.
The district court denied the motion and ordered petitioner to produce the subpoenaed materials. Pet. App.
2a. The court “assumed,” without deciding, that the
FSIA applies to criminal proceedings, and concluded
that, where the FSIA’s grant of immunity applies, so
does its commercial-activity exception to immunity. Id.
at 2a, 4a. The court further held that if the commercialactivity exception applies, as the court found that it did
on the facts here, jurisdiction over a criminal proceeding could exist under 18 U.S.C. 3231. Ibid.
3. Petitioner appealed, and the court of appeals dismissed for lack of appellate jurisdiction. Supp. App.
2a-3a.
4. The district court then held petitioner in contempt and imposed civil contempt sanctions of $50,000
per day, but stayed accrual of those fines pending appeal. Supp. App. 3a.
5. On petitioner’s appeal of the contempt order, the
court of appeals expedited briefing and argument, and
then affirmed. Four days after argument, the court issued a per curiam judgment—with opinion to follow—
and ordered that the mandate issue forthwith. Pet.
As the petition acknowledges (Pet. 1 n.1), petitioner is not itself
a foreign government, but is a separate commercial enterprise that
a foreign government owns.
2

 5
App. 1a-6a. Like the district court, the court of appeals
“decline[d] to resolve” whether the FSIA applies “in
criminal proceedings.” Id. at 2a. The court instead “assume[d] that immunity extends to the criminal context”
and concluded that if one of the FSIA’s exceptions to
immunity was applicable, the district court had jurisdiction. Id. at 2a-4a. The court further concluded, based
on the government’s ex parte showing, that the FSIA’s
commercial-activity exception applies. Id. at 4a-5a. The
court additionally held that the FSIA did not prohibit
“the monetary [contempt] judgment ordered by the district court.” Id. at 5a.
6. Petitioner applied to this Court for a stay pending
the filing and disposition of a petition for a writ of certiorari. After the Chief Justice entered an administrative
stay, Pet. App. 8a, the Chief Justice referred the application to the full Court, which denied the application
and vacated the administrative stay. In re Grand Jury
Subpoena, No. 18A669 (Jan. 8, 2019).
7. On the same day, the court of appeals issued its
opinion. Supp. App. 1a-27a. The court noted the government’s argument that the FSIA is inapplicable to
criminal proceedings, but declined to decide that question. Id. at 5a-6a. Instead, assuming the FSIA applies,
the court agreed with the district court that the three
requirements to sustain the contempt order were satisfied: subject-matter jurisdiction exists; an exception to
immunity applies; and contempt sanctions are available.
Id. at 6a.
The court of appeals held that 18 U.S.C. 3231 provides jurisdiction. Supp. App. 6a-14a. The court rejected petitioner’s contention that the FSIA “eliminated
all criminal subject-matter jurisdiction over foreign

 6
sovereigns” as inconsistent with “[t]he text of the relevant statutes.” Id. at 6a. Petitioner’s reading, the court
noted, would mean that “a foreign-sovereign-owned,
purely commercial enterprise operating within the
United States could flagrantly violate criminal laws”
and “the U.S. government would be powerless to respond, save through diplomatic pressure.” Id. at 10a.
Such a rule would also “signal to even non-sovereign criminals that if they act through such an enterprise, the records might well be immune from criminal subpoenas.” Id.
at 10a-11a. The court expressed great “doubt” that Congress would have “so dramatically gutted the government’s crime-fighting toolkit.” Id. at 11a.3
The court of appeals noted petitioner’s reliance on
statements in Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 434 (1989), that the FSIA
is “the sole basis for obtaining jurisdiction over a foreign state in our courts.” Supp. App. 8a. The court explained, however, that “Amerada Hess was a civil action” in which plaintiffs “sought to circumvent” the
FSIA’s immunity framework entirely. Ibid. That opinion, the court concluded, “gave no hint” that “in criminal
cases clearly covered by an exception to immunity, a
district court would nevertheless lack subject-matter
jurisdiction.” Id. at 10a. The court additionally noted
petitioner’s reliance on Keller v. Central Bank of Nigeria, 277 F.3d 811 (6th Cir. 2002), but explained that its
holding raised “no conflict” with that decision because
the Sixth Circuit did not address whether Section 3231
The court of appeals also rejected a “theory,” offered “[a]t oral
argument,” that Section 3231 “never authorized subject-matter jurisdiction” over foreign sovereign defendants. Supp. App. 13a. The
court explained that “Section 3231’s text” contains no such limitation and that pre-FSIA cases did not support it. Id. at 13a-14a.
3

 7
could apply and, “confronted with the same issue” here
“would be free” to find jurisdiction. Supp. App. 13a.
The court of appeals further held that the FSIA’s
commercial-activity exception applies in this case.
Supp. App. 15a-18a. The court observed that Section
1605(a)’s exceptions to immunity are categorically applicable in “any case” and that the commercial-activity
exception contains no textual limitation to civil cases.
Id. at 15a. After a “searching inquiry of the government’s evidence and legal theories,” the court concluded
that the commercial-activity exception applies. Id. at
16a; see id. at 15a-18a.
Finally, the court of appeals held that “contempt
sanctions against a foreign sovereign are available.”
Supp. App. 18a (quoting FG Hemisphere Assocs., LLC
v. Democratic Republic of Congo, 637 F.3d 373, 379
(D.C. Cir. 2011)). The court accordingly determined
that the district court had “  ‘power to impose sanctions’ ”
and noted that “[w]hether and how” that judgment, if
unpaid, “can be enforced by execution is a question for
a later day.” Ibid. (citation omitted). 4
Judge Williams filed an opinion concurring in part
and concurring in the judgment. Supp. App. 22a-27a.
He joined the court in rejecting petitioner’s contention
that the FSIA confers blanket immunity on foreign instrumentalities in criminal cases, but would have held
that a different clause in the commercial-activity excep-

The court of appeals also rejected petitioner’s contentions that
compliance would require it to violate foreign law and would be
unreasonable or oppressive under Federal Rule of Criminal Procedure 17(c). Supp. App. 19a-21a. Petitioner does not renew those
contentions in this Court.
4

 8
tion “most compellingly establishes grounds” for concluding “that [petitioner] is not immune to the subpoena” in this case. Id. at 22a.
8. Since this Court’s denial of petitioner’s application for a stay pending the filing of a petition for certiorari, litigation has resumed in the district court. On
January 9, 2019, petitioner filed a motion seeking a declaration that the district court’s order assessing monetary contempt sanctions was unenforceable under the
FSIA and asking the court to stay the accrual of sanctions pending the disposition of the petition for certiorari. D. Ct. Docket entry No. 45.5 The court denied the
request for a stay pending certiorari the next day.
D. Ct. Docket entry No. 48 (Jan. 10, 2019). Petitioner
then sought a stay of the accrual of contempt sanctions
pending the court’s disposition of the motion for a declaration on enforceability, which the court denied the
same day. D. Ct. Docket entry Nos. 56-57 (Jan. 15,
2019). On January 24, 2019, the court issued a memorandum and order denying petitioner’s motion for a declaration that the contempt sanction is unenforceable.
D. Ct. Docket entry Nos. 64-65.6

5
The district court has unsealed a docket sheet, with redactions,
available at https://www.dcd.uscourts.gov/sites/dcd/files/FINAL_
18gj41_PublicDocket_20190131.pdf (Jan. 31, 2019). The filings, orders, and opinions remain under seal. The petition does not raise
issues addressed in those materials. If the Court so requests, the
government will lodge those materials with the Clerk.
6
Additional procedural developments remain under seal. The
government has filed a motion for leave to submit a supplemental
sealed brief in opposition to apprise the Court of those developments.

 9
ARGUMENT

Petitioner contends (Pet. 15-38) that this Court
should grant certiorari to decide (1) whether foreignstate-owned enterprises are categorically immune from
all criminal proceedings, including grand jury proceedings; and, (2) if not, whether a district court can impose
monetary contempt sanctions on such an enterprise for
violation of a court order requiring compliance with a
grand jury subpoena. The court of appeals correctly decided both questions, and neither question warrants
this Court’s review.
1. Petitioner contends (Pet. 17-28) that the FSIA
completely bars the exercise of criminal jurisdiction
against foreign states, agencies, and instrumentalities.
The court of appeals’ holding —that, if the FSIA applies
to criminal cases and one of its exceptions to immunity
is satisfied, a district court may exercise jurisdiction under 18 U.S.C. 3231—is correct and does not conflict with
any decision of this Court or any other court of appeals.
This case would also be a poor vehicle to address petitioner’s claim to absolute immunity under the FSIA.
a. As an initial matter, the court of appeals assumed,
without deciding, that the FSIA applies in criminal
cases, including grand jury proceedings. In fact, however, this Court’s decisions, the text of the FSIA, and
its purposes and operation all point to the conclusion
that its focus is exclusively civil.
This Court has repeatedly described the FSIA as addressed to civil actions and has never suggested that it
applies in the criminal context. See Verlinden B. V. v.
Central Bank of Nigeria, 461 U.S. 480, 488 (1983) (the
FSIA provides “a comprehensive set of legal standards
governing claims of immunity in every civil action

 10
against a foreign state or its political subdivisions, agencies, or instrumentalities”) (emphasis added); Republic
of Argentina v. NML Capital, Ltd., 573 U.S. 134, 141
(2014) (same); Republic of Austria v. Altmann, 541 U.S.
677, 691 (2004) (same). The only courts that have addressed the question in criminal prosecutions or grandjury cases have held that the FSIA does not apply. See
United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir.
1997); In re Grand Jury Proceeding Related To M/V
Deltuva, 752 F. Supp. 2d 173, 176-180 (D.P.R. 2010);
United States v. Hendron, 813 F. Supp. 973, 974-977
(E.D.N.Y. 1993). Those decisions, as the government
has argued, are correct.
The FSIA’s text, read “as a whole,” Samantar v.
Yousuf, 560 U.S. 305, 319 (2010), demonstrates that the
Act is exclusively civil in its application. The Act begins
by conferring jurisdiction on the district courts over
“any nonjury civil action” in which a foreign state is not
immune. 28 U.S.C. 1330(a). The Act’s procedures for
asserting immunity or other jurisdictional limits address only civil actions. See 28 U.S.C 1441(d) (removal
of “[a]ny civil action”); 28 U.S.C. 1608(d) (deadline for
serving “an answer or other responsive pleading to the
complaint”). The Act’s other procedural provisions
have a uniform focus on civil actions. See, e.g., 28 U.S.C.
1391(f ) (venue); 28 U.S.C. 1608(a) and (b) (service
rules). And the statutory findings and declaration of
purpose refer to the “rights of both foreign states and
litigants,” without reference to governments or prosecutors that conduct criminal proceedings. 28 U.S.C.
1602. The exclusively civil focus of these provisions
“supports the view of * * * the United States that the
Act does not address” immunity from criminal prosecu-

 11
tion. Samantar, 560 U.S. at 319 (holding FSIA inapplicable to suits against foreign officials in their official
capacity).
The FSIA’s background, purpose, and legislative
history confirm that its immunity provisions were designed to address civil cases. See Samantar, 560 U.S.
at 316 n.9, 319 n.12, 320-325 (conducting a similar analysis). “[T]he ‘Act and its legislative history do not say a
single word about possible criminal proceedings.”
Supp. App. 12a (quoting Joseph W. Dellapenna, Suing
Foreign Governments and Their Corporations 37 (2d ed.
2003)). “To the contrary, the relevant reports and hearings suggest Congress was focused, laser-like, on the
headaches born of private plaintiffs’ civil actions against
foreign states.” Ibid.
The Act was passed to address problems that arose
exclusively in civil actions—the Executive Branch’s
having requests for immunity thrust upon it and the resulting political considerations leading to inconsistent
immunity determinations and uncertainty for litigants.
See 1976 House Report 6-9; Jurisdiction of U.S. Courts
in Suits Against Foreign States: Hearing Before the
Subcomm. on Administrative Law and Governmental
Relations of the House Comm. on the Judiciary on
H.R. 11315, 94th Cong., 2d Sess. 24-27, 31-35, 60 (1976)
(1976 Hearings). The Executive Branch proposed the
FSIA to govern “[h]ow, and under what circumstances,
* * * private persons [can] maintain a lawsuit against a
foreign government or against a commercial enterprise
owned by a foreign government.” 1976 Hearings 24
(State Department); accord id. at 29 (Justice Department). The House Report likewise noted the need for
“comprehensive provisions” to “inform parties when
they can have recourse to the courts to assert a legal

 12
claim against a foreign state,” 1976 House Report 7, and
repeatedly referred to “plaintiffs,” “suit[s],” “litigants,”
and “liability,” id. at 6-8, 12—all terms that suggest civil
actions.
As for criminal matters, no text or history suggests
that Congress intended the FSIA to displace the federal
government’s traditional role in deciding whether to
prosecute or subpoena a foreign-government-owned
business—a step that the government has taken in appropriate cases for decades. See pp. 18-19, infra. Nor
do the FSIA’s purposes support such an extension. The
federal government, not a private party, controls
whether to initiate a federal criminal matter against a
foreign-government-owned commercial enterprise. See
Pasquantino v. United States, 544 U.S. 349, 369 (2005);
see also United States v. Sinovel Wind Grp. Co., 794 F.3d
787, 792 (7th Cir. 2015). Immunity in criminal matters
“simply was not the particular problem to which Congress was responding.” Samantar, 560 U.S. at 323 (discussing officials).
b. In any event, the court of appeals correctly held
that, assuming the FSIA applies, so do its exceptions to
immunity, and satisfying one of those exceptions permits a district court to exercise jurisdiction under
18 U.S.C. 3231.
i. The FSIA confers immunity “from the jurisdiction of the courts of the United States and of the States”
with delineated exceptions. 28 U.S.C. 1604. Section
1605, in turn, lists the statutory exceptions to immunity,
which are categorically applicable “in any case.”
28 U.S.C. 1605(a); see Supp. App. 15a. Some of the exceptions focus on civil causes of actions that can result
in money damages. E.g., 28 U.S.C. 1605(a)(5). But the
commercial-activity exception in Section 1605(a)(2) has

 13
no such textual limitation. Petitioner’s only textual argument against criminal jurisdiction is its assertion that
the grant of civil jurisdiction under 28 U.S.C. 1330(a)
implicitly bars the exercise of criminal jurisdiction under 18 U.S.C. 3231. But as the court of appeals explained, “nothing in the Act’s text expressly displaces
[S]ection 3231’s jurisdictional grant.” Supp. App. 7a.
Rather, Section 1330(a) “by its terms merely confers jurisdiction.” Id. at 8a.7
The FSIA’s legislative history confirms that Section
1330(a)’s purpose is to grant jurisdiction in certain civil
actions, not to implicitly strip courts of criminal jurisdiction. The House Report explains that Section 1330 is
intended to ensure that parties can have their cases
heard in federal court, 1976 House Report 13, and that
Section 1604 is the “only basis” on which a foreign state
may “claim immunity from the jurisdiction” of federal
courts, id. at 17. The history provides no support for
the idea that the grant of jurisdiction in Section 1330
reaches beyond the civil context to affirmatively bar
criminal actions.
Petitioner’s interpretation would, as the court of appeals recognized, lead to a result that Congress could not
have intended—i.e., that “purely commercial enterprise[s] operating within the United States,” if majorityowned by a foreign government, could “flagrantly violate
criminal laws” and ignore criminal process, no matter
Petitioner notes (Pet. 24-25) that the exception to immunity for
state-sponsored terrorism, 28 U.S.C. 1605A, describes civil actions.
That is consistent with the government’s view that the FSIA only
applies to civil actions. In any event, because that exception was
added decades after the FSIA was enacted, it affords no reliable
“ ‘basis for inferring the intent of an earlier’ Congress.” United
States v. Texas, 507 U.S. 529, 535 n.4 (1993) (citation omitted).
7

 14
how domestic the conduct or egregious the violation.
Supp. App. 10a. Banks, airlines, software companies,
and similar commercial businesses could wittingly or
unwittingly provide a haven for criminal activity and
would be shielded against providing evidence even of
domestic criminal conduct by U.S. citizens. See id. at
10a-11a. Although petitioner declares that result to be
“precisely what Congress intended,” Pet. 25, it cannot
plausibly be maintained that Congress and the Executive Branch—which drafted the FSIA—would have
adopted such a rule “without so much as a whisper” to
that effect in the Act’s extensive legislative history, Samantar, 560 U.S. at 319.8
ii. Petitioner’s primary arguments (Pet. 14, 17, 21-24,
26-28) rest not on statutory text or legislative history
but on statements in this Court’s decisions describing
the FSIA as comprehensive and as the exclusive basis
for obtaining jurisdiction over a foreign state. The
court of appeals’ opinion is fully consistent with the
cited decisions, which—as the court below recognized,
Supp. App. 8a-13a—addressed specific problems in the
context of civil, not criminal, cases.
Petitioner principally relies on Argentine Republic
v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989),
a civil action in which the plaintiff sought to avoid the
FSIA’s immunity rules by invoking statutory grants of
Petitioner suggests (Pet. 26) that Congress would not have been
troubled by barring federal criminal jurisdiction over foreign stateowned enterprises because the President could use tools such as
economic sanctions to address foreign instrumentalities “that commit crimes in the United States.” That overlooks not only the legal
and practical limits on sanctions, but also the threshold need to acquire evidence through grand jury subpoenas in order to determine
whether a crime has been committed—including by U.S. citizens.
8

 15
jurisdiction over civil cases from outside of the FSIA
and claiming that the FSIA’s jurisdictional-immunity
framework, see 28 U.S.C. 1604-1607, was therefore inapplicable. 488 U.S. at 431-433. The Court held that
private plaintiffs cannot avoid the FSIA by invoking bases of jurisdiction from other statutes. Id. at 434-439.
The Court explained that “[Section] 1604 bars federal
and state courts from exercising jurisdiction when a foreign state is entitled to immunity,” and jurisdiction accordingly “ ‘depends on the existence of one of the specified exceptions.’ ” Id. at 434-435 (citation and emphasis
omitted). Given the “comprehensiveness of the statutory scheme,” the Court reasoned that Congress did not
need to amend “other grants of subject-matter jurisdiction in Title 28” such as “federal question” jurisdiction.
Id. at 437; see id. at 437-439. The Court thus explained
that the FSIA is “the sole basis for obtaining jurisdiction over a foreign state,” id. at 434, 439, and “turn[ed]
to whether any of the exceptions enumerated in the Act
apply,” id. at 439.
Amerada Hess and petitioner’s other cited decisions
involved civil suits against foreign entities covered by
the FSIA, not a criminal matter involving a grand jury
subpoena. As the court of appeals recognized, those decisions establish that the FSIA treats civil jurisdiction
comprehensively. But nothing in Amerada Hess’s language addresses, let alone forecloses, the court of
appeals’ analysis in this case. See Illinois v. Lidster,
540 U.S. 419, 424 (2004) (“[G]eneral language in judicial
opinions” must be read “as referring in context to circumstances similar to the circumstances then before
the Court and not referring to quite different circumstances that the Court was not then considering.”).

 16
In any event, the language quoted by petitioner does
not support its argument. Petitioner notes (Pet. 7, 13,
21) that Amerada Hess described “the FSIA [as] the
sole basis for obtaining jurisdiction over a foreign
state.” 488 U.S. at 434, 439. But even in the context of
the civil action in that case, Amerada Hess explained
only that Section 1604 bars “jurisdiction when a foreign
state is entitled to immunity” and that “  ‘subject-matter
jurisdiction in any such action depends on the existence
of one of the specified exceptions to foreign sovereign
immunity.’  ” Id. at 434-435 (quoting Verlinden, 461 U.S.
at 493) (emphasis omitted). Here, the courts below expressly relied on one of the specified immunity exceptions before upholding jurisdiction. Petitioner similarly
quotes Amerada Hess’s statement in a footnote that
“jurisdiction in actions against foreign states is comprehensively treated by * * * [S]ection 1330.” Pet. 8, 17
(quoting Amerada Hess, 488 U.S. at 437 n.5); see id.
at 26 (similar). But that footnote merely quoted from
committee reports’ explanation for removing the reference to foreign states from 28 U.S.C. 1332, which provides diversity jurisdiction in civil cases. 488 U.S. at 437
n.5 (explaining that diversity jurisdiction became “superfluous” once the new Section 1330 provided jurisdiction for civil actions against foreign states) (citation
omitted).9

Petitioner’s similar quotations (Pet. 8-9, 17) from cases such as
Verlinden and NML Capital also do not support its position. Like
Amerada Hess, those cases involved civil suits that did not address
jurisdiction over criminal actions. In fact, both cases describe the
FSIA as being comprehensive as to “civil action[s].” See pp. 9-10,
supra.
9

 17
iii. Petitioner additionally argues (Pet. 5-6, 7, 9-10,
27) that its rule of absolute immunity in criminal matters is compelled by international law. Petitioner’s
sources at most reflect an international consensus
against prosecuting foreign states themselves. See Hazel Fox, The Law of State Immunity 89 (3d ed. 2013)
(immunity bars applying “criminal law to regulate the
public governmental activity of the foreign State”); id.
at 89 n.64 (states shielded from claims “related to the
exercise of governmental powers”). But as the court of
appeals recognized (Supp. App. 11a), no such rule extends to state-owned corporations. See William C.
Hoffman, The Separate Entity Rule in International
Perspective, 65 Tul. L. Rev. 535, 565-566 (1991); Andrew
Dickinson, State Immunity and State-Owned Enterprises, 10 Bus. L. Int’l 97, 125-127 (2009).
Petitioner’s citation to the immunity laws of other
countries (Pet. 9-10) confirms the point: The cited laws
state that they do not apply to criminal cases. 10 In addition, many of those laws make clear that governmentowned corporations are generally not treated as the
state for purposes of immunity, except where the corporation is engaging in the “exercise of sovereign authority,” State Immunity Act 1978, c. 33, § 14(2)(a) (United
Kingdom)—in other words, they establish a framework
roughly analogous to the court of appeals’ application of
the commercial-activity exception in this case. See ibid.;
Foreign States Immunities Act of 1981 §§ 1(2)(i), 15(1)
Foreign States Immunities Act of 1981 § 2(3) (South Africa);
State Immunity Act, R.S.C. 1985, c. S-18, § 18 (Canada); The State
Immunity Ordinance No. 6 of 1981 § 17(2)(b) (Pakistan); State Immunity Act, Ch. 313, Pt. 3, § 19(2)(b) (rev. 2014 ed.) (Singapore);
State Immunity Act 1978, c. 33, § 16(4) (United Kingdom).
10

 18
(South Africa); The State Immunity Ordinance No. 6 of
1981 § 15 (Pakistan); State Immunity Act, Ch. 313, Pt.
3, § 16 (rev. 2014 ed.) (Singapore).11
iv. Finally, the decision below does not diverge from
any “longstanding rule” (Pet. 7) of absolute immunity or
signal any sea-change in American practice (see Pet. 2,
4, 7, 28 n.10). To the contrary, petitioner’s position
would have that effect by casting aside decades of practice under which the United States has prosecuted and
served criminal process on commercial enterprises that
are majority-owned by foreign governments. See, e.g.,
In re Pangang Grp. Co., 901 F.3d 1046, 1049 (9th Cir.
2018); United States v. Ho, No. 16-cr-46, 2016 WL
5875005, at *6 (E.D. Tenn. Oct. 7, 2016); M/V Deltuva,
752 F. Supp. 2d at 176-180; United States v. Jasin, No.
91-cr-602, 1993 WL 259436, at *1 (E.D. Pa. July 7, 1993);
In re Sealed Case, 825 F.2d 494, 495 (D.C. Cir. 1987)
(per curiam); In re Grand Jury Investigation of Shipping Indus., 186 F. Supp. 298, 318-320 (D.D.C. 1960); In
re Investigation of World Arrangements, 13 F.R.D.
280, 288-291 (D.D.C. 1952); see also, e.g., United States
v. Statoil, ASA, No. 06-cr-960 (S.D.N.Y. Oct. 13, 2006)
(criminal information and deferred prosecution agreement against Norwegian state-owned oil company);12
United States v. Aerlinte Eireann, No. 89-cr-647,

Petitioner additionally cites (Pet. 5-6) several cases about immunity for heads of state. The FSIA does not address immunity of
foreign officials, however, and petitioner makes no argument about
why those cases bear on immunity of state-owned commercial enterprises.
12
https://www.justice.gov/criminal-fraud/case/united-states-v-statoilasa-court-docket-number-06-cr-960 (updated June 9, 2015).
11

 19
Docket entry No. 12 (S.D. Fla. Oct. 6, 1989) (guilty plea
of airline then owned by Ireland). 13
The cases quoted by petitioner as describing immunity rules were all civil actions, and none supports petitioner’s claim to absolute immunity. The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812), involved immunity of a sovereign’s warship, see id. at 135,
137, and pre-dated the rule that foreign sovereign immunity was “the case-by-case prerogative of the Executive Branch.” Republic of Iraq v. Beaty, 556 U.S. 848,
857 (2009); see Alfred Dunhill of London , Inc. v. Republic
of Cuba, 425 U.S. 682, 699-703 (1976) (opinion of White, J.)
(describing the rule’s development). The statement in
Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 821
(2018), that “foreign states enjoyed absolute immunity
from all actions in the United States” (Pet. 4) was preceded and followed by language acknowledging that this
was the Executive Branch’s “generally held * * * position” until 1952 when determining immunity, after
which the Executive’s policy changed “as foreign states

Although the district court in World Arrangements ultimately
quashed the subpoena and the district court in Shipping Industry
reserved judgment on the state-owned shipping company’s immunity, both cases are examples of the Executive Branch’s longstanding
position that state-owned enterprises are not immune from criminal
process. Contrary to the categorical approach petitioner espouses,
the courts did not automatically dismiss the actions on the ground
that criminal matters can never proceed against state-owned corporations, as petitioner urges. Rather, they analyzed whether the
state-owned entities were organs of the state performing sovereign
functions—an analysis that would have been unnecessary if a showing that the companies were majority-owned by a foreign government automatically entitled them to absolute immunity from criminal jurisdiction.
13

 20
became more involved in commercial activity in the
United States.” 138 S. Ct. at 821.
c. Petitioner contends (Pet. 16-20, 37) that the
courts of appeals are divided over whether American
courts can exercise subject-matter jurisdiction over foreign states or instrumentalities in criminal cases. Petitioner does not point to any court that has declined to
exercise criminal jurisdiction by dismissing an indictment or quashing a subpoena under the FSIA. Nor does
petitioner show that any other court of appeals has addressed the court of appeals’ conclusion here that, if the
FSIA applies in criminal cases and the commercialactivity exception to immunity is satisfied, then jurisdiction exists under 18 U.S.C. 3231. The decision below
therefore does not conflict with the decision of another
court of appeals, and the infrequently raised issue here
does not otherwise warrant this Court’s intervention.
i. Petitioner principally contends (Pet. 16, 19-20, 37)
that the court of appeals’ decision conflicts with the
Sixth Circuit’s decision in Keller v. Central Bank of Nigeria, 277 F.3d 811 (2002). The court of appeals correctly recognized (Supp. App. 13a) that “no conflict” exists. Keller was a civil suit against the central bank of
Nigeria and several purported bank employees, arising
from a fraud perpetrated by a self-identified Nigerian
prince. 277 F.3d at 814-815, 818. In reviewing civil allegations of violations of the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. 1964(c),
the court considered whether the alleged “act[s]”—the
asserted fraud—were “indictable,” an element of civilRICO claims. Keller, 277 F.3d at 818 (citing 18 U.S.C.
1961(1)(B), 1962(b)-(d)). The court stated that the FSIA’s
jurisdictional-immunity provision, 28 U.S.C. 1604, applies to criminal cases, and therefore “jurisdiction over

 21
a foreign sovereign will exist only if there is a relevant
international agreement or an exception listed in
28 U.S.C. §§ 1605-1607.” Keller, 277 F.3d at 819-820.
The court then said that there was no applicable “international agreement” and that “the FSIA does not provide an exception for criminal jurisdiction.” Id. at 820.
The court accordingly concluded that, because the defendants could not be indicted, the civil-RICO suit failed
to state a claim. Id. at 820-821.
Keller should not be read to mean, as petitioner contends (Pet. 19), that, as a categorical matter, “the FSIA
forecloses criminal jurisdiction.” Rather, Keller contemplated that jurisdiction could exist in criminal cases
by repeatedly suggesting that a criminal prosecution
could proceed if authorized by an “international agreement,” 277 F.3d at 820—a position that is inconsistent
with petitioner’s argument here. While Keller also
quoted with approval broad language from a district
court decision that found a civil-RICO action barred by
the FSIA on the ground that criminal jurisdiction was
unavailable, see id. at 819-820, Keller’s conclusion that
the FSIA would not bar jurisdiction if there were an “international agreement stating otherwise,” id. at 820,
shows that Keller did not fully embrace that broad language. And, as the court below recognized, the Sixth
Circuit has not confronted a case in which the government brought criminal proceedings and based jurisdiction on 18 U.S.C. 3231, and it therefore “has yet to
squarely address whether that provision can support jurisdiction consistent with the Act.” Supp. App. 13a. If
“confronted with the same issue” faced here, “the Sixth
Circuit would be free to reach the same conclusion” as
the court below—“that section 3231 can be invoked in
conjunction with the [FSIA].” Ibid.

 22
ii. Petitioner additionally contends (Pet. 16, 18-19)
that the decision below conflicts with decisions of seven
other courts of appeals. But the cases cited by petitioner were all civil actions and did not address any
question passed upon by the court of appeals here. Several of those cases merely described the FSIA using
terms such as “comprehensive,” “exclusive,” or “sole”;
they confirm that where the FSIA’s immunity framework applies, jurisdiction depends on whether an exception to immunity applies. Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017-1020 (2d Cir. 1991); Janvey v.
Libyan Inv. Auth., 840 F.3d 248, 257, 259-263 (5th Cir.
2016) (per curiam); Wolf v. Federal Republic of Germany, 95 F.3d 536, 540-544 (7th Cir. 1996), cert. denied,
520 U.S. 1106 (1997); Community Fin. Grp., Inc. v. Republic of Kenya, 663 F.3d 977, 979, 980-982 (8th Cir.
2011); McKeel v. Islamic Republic of Iran, 722 F.2d
582, 585-589 (9th Cir. 1983), cert. denied, 469 U.S. 880
(1984). Several of the cited cases also stand for the
proposition that in a civil action against a foreign sovereign, the FSIA’s specific grant of subject-matter jurisdiction and procedures for civil actions against foreign
states, such as a non-jury trial, must apply. Mobil Cerro
Negro, Ltd. v. Bolivarian Republic of Venezuela,
863 F.3d 96, 112-125 (2d Cir. 2017); Ruggiero v. Compania Peruana de Vapores “Inca Capac Yupanqui,”
639 F.2d 872, 873-878 (2d Cir. 1981); Rex v. Cia. Pervana de Vapores, S. A., 660 F.2d 61, 62-65 (3d Cir. 1981),
cert. denied, 456 U.S. 926 (1982); Williams v. Shipping
Corp. of India, 653 F.2d 875, 876-881 (4th Cir. 1981),
cert. denied, 455 U.S. 982 (1982); Goar v. Compania Peruana de Vapores, 688 F.2d 417, 418, 420-422 (5th Cir.

 23
1982). But none of those cases addressed whether or
how the FSIA applies to a criminal case. 14
iii. Even if there were genuine tension between the
decision below and the cases cited by petitioner, it
would not warrant further review. Petitioner argues
that jurisdiction can never exist over foreign-stateowned businesses in criminal matters. But no court has
declined to exercise jurisdiction in a criminal prosecution or grand jury proceeding on that basis. See Restatement (Fourth) of Foreign Relations Law of the
United States § 451 reporter’s note 4 (2018). And even
in the circuit that decided the case (Keller) principally
relied on by petitioner (Pet. 19-20, 37), the United
States has not understood government-owned businesses to be immune from criminal prosecution and process. See, e.g., Ho, 2016 WL 5875005, at *6 (noting prosecution of Chinese-government-owned power company
in the Sixth Circuit).
There is no pressing need for this Court to intervene
in the absence of a conflict. The issue raised by petitioner has arisen infrequently since the FSIA’s enactment in 1976. The number of cases in which the issue
could arise is further reduced by this Court’s 2010 decision in Samantar, supra, that the FSIA does not apply
in suits against individuals acting in their official capacity. And contrary to petitioner’s contention (Pet. 2-3,
20, 36-38), the decision below breaks no new ground in

Petitioner additionally notes (Pet. 20) that two courts of appeals
have held that the FSIA does not govern criminal proceedings.
Noriega, 117 F.3d at 1212; see Southway v. Central Bank of Nigeria, 198 F.3d 1210, 1214-1215 (10th Cir. 1999) (civil RICO case). But
the court below expressly declined to address that question. Supp.
App. 5a-6a.
14

 24
the United States’ exercise of criminal jurisdiction. See
pp. 18-19, supra.
This case would also be a poor vehicle to address the
question that petitioner seeks to present. Before addressing how the FSIA’s provisions apply to criminal
cases, this Court’s ordinary practice would require it to
consider “the antecedent question” whether the FSIA
applies to criminal cases at all. United States v. Grubbs,
547 U.S. 90, 94 & n.1 (2006). But that question was not
passed upon by the courts below. Because this Court is
a court of “review, not of first view,” McWilliams v.
Dunn, 137 S. Ct. 1790, 1801 (2017) (citation omitted),
this case would be an inappropriate vehicle to consider
that issue.
2. Petitioner also contends (Pet. 28-35) that the
FSIA bars the imposition of contempt sanctions in this
case. The court of appeals correctly held that the district court could impose monetary contempt sanctions
to require petitioner to comply with a grand jury subpoena. Petitioner identifies no court of appeals that
would have prohibited imposition of monetary contempt
sanctions in these circumstances. Although a narrow
conflict exists about the authority to impose contempt
sanctions in civil suits against foreign states, the contempt order in this case does not implicate that conflict,
and this case therefore presents no occasion for resolving it.
a. The district court’s imposition of monetary contempt sanctions in this case was consistent with the
FSIA. The Act confers two kinds of immunity: immunity
from jurisdiction, 28 U.S.C. 1604-1607, and immunity
from attachment and execution of judgment, 28 U.S.C.
1609-1611. Petitioner argues (Pet. 29-32) that the FSIA
would not permit execution of a monetary contempt

 25
judgment, i.e., enforcement if the contemnor refused to
pay. But petitioner does not explain why, even if that
were so, that asserted barrier to executing on an unpaid
judgment would categorically prohibit a district court
from imposing a contempt sanction in the first place for
non-compliance with a grand jury subpoena. And the
court of appeals explicitly declined to reach whether execution would be permitted, Supp. App. 18a, making it
inappropriate for this Court to address that issue in the
first instance. Petitioner’s only argument about entry,
rather than enforcement, of contempt sanctions is its
quotation (Pet. 31) from congressional testimony by the
State Department Legal Adviser in 1987, which does
not address the relevant issue and could not create an
immunity that the text itself does not. 15
b. In any event, petitioner’s arguments (Pet. 29-33)
against enforceability of contempt sanctions are misguided. The provisions governing execution of judgment are part of the Act’s “comprehensive set of legal
standards governing claims of immunity in every civil
action,” NML Capital, 573 U.S. at 141 (emphasis
added); see id. at 142; 1976 Hearings 26 (describing
those provisions as “provid[ing] U.S. citizens with the
remedy of execution”); 1976 House Report 12. No text
The Legal Adviser stated that “[t]he legislative history of the
Act properly suggests, we believe, that imposition of a fine on a foreign state or incarceration of its officials for a state’s failure to comply with a court order would not be permitted.” Hearing Before the
Subcomm. on Administrative Law and Governmental Relations of
the House Comm. on the Judiciary on H.R. 1149, H.R. 1689, and
H.R. 1888, 100th Cong., 1st Sess. 19 (1987). That testimony occurred 11 years after the FSIA was passed and, as reflected in its
reference to “officials,” ibid., the word “state” appears to have concerned states themselves rather than state-owned enterprises. See
id. at 36 (accompanying prepared statement).
15

 26
or legislative history indicates that the immunity from
execution concerned judgments in criminal cases. See
Supp. App. 9a-11a.
Furthermore, assuming the FSIA applies, its exceptions to immunity from execution of judgment would apply as well. The FSIA provides broader exceptions for
agencies and instrumentalities than for foreign states.
28 U.S.C. 1609-1611. For agencies and instrumentalities (but not states) that are “engaged in commercial activity in the United States,” their property in the United
States is not immune from execution if “the judgment
relates to a claim for which the agency or instrumentality is not immune by virtue of ” the commercial-activity
exception, “regardless of whether the property is or was
involved in the act upon which the claim is based.”
28 U.S.C. 1610(b)(2).
If the FSIA applies and the court enters a fixed,
monetary judgment, the exception in Section 1610(b)(2)
would be satisfied: Petitioner is engaged in commercial
activity in the United States, has property in the United
States, and the monetary judgment would “relate[] to a
claim for which [petitioner] is not immune by virtue of ”
the commercial-activity exception, 28 U.S.C. 1610(b)(2).
As petitioner acknowledges (Pet. 30), the term “claim”
includes not just a “demand for money,” but also a demand for “property” and “a legal remedy to which one
asserts a right; esp., the part of a complaint in a civil
action specifying what relief the plaintiff asks for.”
Black’s Law Dictionary 301 (10th ed. 2014) (def. 3) (emphasis added). The subpoena issued by the grand jury
required the production of documents, and the government’s request for enforcement of the subpoena sought
to compel production of the evidence to which the grand
jury was entitled, backed by sanctions if petitioner did

 27
not produce it. That request constituted a “claim” within
the meaning of the FSIA, and the district court’s contempt order clearly “relates” to that claim, 28 U.S.C.
1610(b)(2).16
c. Petitioner can derive no support from amicus
briefs filed by the government in civil suits against foreign states where the government opposed imposition
of contempt sanctions for failure to comply with a discovery or injunctive order in part because the sanctions
would be unenforceable under the FSIA. Pet. 33-34.17
Quite apart from the fact that the government’s position
here is that the FSIA does not apply to this proceeding
at all, the cited amicus briefs involved 28 U.S.C.
1610(a)(2), which permits execution against a foreign
state’s property only when the property is in the United
States and “is or was used for the commercial activity
upon which the claim is based”—a considerably narrower test. Furthermore, unlike in the amicus briefs
cited by petitioner, where the government relied on
Petitioner’s contrary position is not supported by the government’s brief in FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 637 F.3d 373 (D.C. Cir. 2011). See U.S. Amicus Br. at
7-8, FG Hemisphere, supra (No. 10-7046) (Oct. 7, 2010) (U.S. FG
Hemisphere Br.). As the quoted language makes clear, that brief
did not construe the word “claim” in isolation and, as discussed below, it addressed the narrower exception in Section 1610(a)(2), rather than Section 1610(b)(2), which is at issue here.
17
See, e.g., U.S. FG Hemisphere Br. at 6. In SerVaas Inc. v. Republic of Iraq, sanctions were entered against both Iraq and the
Ministry of Industry, but the court of appeals had previously held
that the Ministry was part of the foreign state itself, not an agency
or instrumentality. See 653 Fed. Appx. 22, 24-25 (2d Cir. 2011). The
United States’ discussion of immunity its brief in that case accordingly addressed only sanctions against the foreign state itself. See
U.S. Amicus Br. at 18, SerVaas, supra (No. 14-385) (Sept. 9, 2014).
16

 28
principles of equity and comity to argue against the imposition of unenforceable contempt sanctions in civil litigation brought by a private party against a foreign
state, see e.g., U.S. FG Hemisphere Br. at 15-16, here,
the government is a party to this case and itself sought
the contempt sanction in a criminal proceeding against
a state-owned commercial enterprise. The equities here
are thus fundamentally different.
d. No circuit conflict exists on the propriety of imposing contempt sanctions against a commercial instrumentality for refusing to comply with a grand jury subpoena. Indeed, no other court of appeals has addressed
the question, particularly in circumstances where the
FSIA’s commercial-activity exception is satisfied.
Petitioner correctly notes (Pet. 28-29) that a narrow
circuit conflict exists about imposition of contempt sanctions in civil actions against foreign states. Compare
FG Hemisphere Assocs., LLC v. Democratic Republic
of Congo, 637 F.3d 373, 378-379 (D.C. Cir. 2011), and
Autotech Techs. LP v. Integral Research & Dev. Corp.,
499 F.3d 737, 744 (7th Cir. 2007), cert. denied, 552 U.S.
1231 (2008), with Af-Cap, Inc. v. Republic of Congo,
462 F.3d 417, 428 (5th Cir. 2006), cert. dismissed,
549 U.S. 1275 (2007). While the court of appeals below
followed its prior precedent authorizing contempt sanctions, see Supp. App. 18a, the contempt order in this
case does not implicate that conflict for several reasons.
First, in the government’s view, the FSIA does not
apply to execution of judgment in criminal matters.
None of the other conflicting decisions faced that issue,
and it was not decided below. Second, if the FSIA were
held to apply in criminal matters, Section 1610(b)(2),
which applies to agencies and instrumentalities and was
not at issue in the conflicting decisions of other courts,

 29
would apply here. The Court’s resolution of whether
Section 1610(b)(2) applies (and permits enforcement)
would not necessarily govern cases involving a foreign
state, to which the narrower framework of Section
1610(a)(2) would apply. Finally, this case, unlike the
others cited, involves the government itself seeking
contempt sanctions. The considerations unique to this
context have not been addressed by any court of appeals. In view of the significant factual and legal distinctions between this case and the other cited cases,
review to resolve a conflict presented in other contexts
is not warranted here.
CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General

FEBRUARY 2019