"fail[ed] to make a showing sufficient to establish
the existence of an element essential to that party's case, and on which
that party will bear the burden of proof at trial." See Celotex, 477
U.S. at 322. By pointing to the absence of evidence proffered by the
nonmoving party, a moving party may succeed on summary judgment. See id.
In addition, the nonmoving party may not rely solely on allegations or
conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.
Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather,
the nonmoving party must present specific facts that would enable a
reasonable jury to find in its favor. See Greene, 164 F.3d at 675. If the
evidence "is merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50 (internal
B. The FSIA Does Not Preclude the Plaintiff's Claim
When the court addresses a suit against a foreign state, the court must
initially determine whether it has subject-matter jurisdiction to hear
the case. See Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 443 (1989). The FSIA provides the sole basis for
jurisdiction over suits against foreign nations. See id.
The FSIA presumes that foreign states are immune from the jurisdiction
of United States courts. See 28 U.S.C. § 1604. Exceptions to this
immunity exist for cases dealing with waiver of immunity, certain
commercial activities, expropriation of certain types of property, cases
concerning rights to immovable property situated in the United States,
and actions based in tort, or admiralty claims. See
28 U.S.C. § 1605(a)(1)-(5),(b).
In the present case, the defendant argues that because the facts giving
rise to the plaintiff's cause of action took place before the enactment
of the FSIA, the court lacks subject-matter jurisdiction over the instant
case because the FSIA may not apply to the defendant retroactively. See
Def.'s Mot. at 11. The plaintiff contends that the FSIA applies to this
case and, furthermore, that the defendant's actions, which are the
subject of this lawsuit, are commercial activities that are exempt from
the FSIA's sovereign-immunity status pursuant to
28 U.S.C. § 1605(a)(2). See Pl.'s Mot. at 24. The court addresses
these arguments in turn.
1. The FSIA Applies to Post-1952 Commercial Acts by a Foreign Sovereign
The court must first determine whether the FSIA applies to the
plaintiff's claim and thereby ascertain whether subject-matter
jurisdiction exists. Since the founding of the nation to the latter half
of the twentieth century, foreign sovereigns enjoyed absolute immunity
from suit in United States courts. See e.g., The Schooner Exchange v.
McFaddon, 11 U.S. 116, 137-38 (1812); see also Verlinden B.V. v. Central
Bank of Nigeria, 461 U.S. 480, 486 (1983) (explaining the history of
sovereign immunity in the United States). During that time, courts
deferred to the decisions of the Executive branch on whether to exert
jurisdiction over actions against foreign sovereigns and their
instrumentalities, and, as a matter of grace and comity on the part of
the United States, the State Department generally requested immunity in
all actions against friendly foreign sovereigns. See Verlinden, 461 U.S.
In 1952, the Tate Letter announced the Executive branch's adoption of
the "restrictive theory" of immunity with respect to claims against
foreign sovereigns. See Letter from Jack B. Tate, Acting Legal
Adviser, Department of State, to Acting Attorney General Philip B. Perlman
(May 19, 1952), reprinted in 26 Dept. of State Bull. 984-985 (1952), and in
Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 712-13 (1976).
Under the restrictive theory of immunity, foreign states and their
instrumentalities retained immunity for their sovereign or public acts,
but could be sued in United States courts for their commercial or private
acts. See Verlinden, 461 U.S. at 486-87.
Even with Congress' enactment of the FSIA in 1976, courts continued to
defer to recommendations from the State Department on a case-by-case
basis in determining sovereign immunity. See id. at 487. The possibility
existed that political considerations, rather than purely legal
considerations, could determine whether or not foreign sovereigns
obtained immunity from suit in United States courts. Only when the
Executive branch remained silent did the courts determine whether
sovereign immunity would be extended in suits involving foreign states.
See id. In sum, the "governing standards were neither clear nor uniformly
The 1976 FSIA substantially codified the restrictive theory of
sovereign immunity in order to "free the Government from the case-by-case
diplomatic pressures," to assure litigants that "decisions are made on
purely legal grounds," and to "insure that [the] restrictive principle of
immunity is applied in litigation before U.S. courts." H.R. Rep. No.
94-1487 at 7 (1976).
a. The Underlying Acts That Gave Rise to the Plaintiff's Instant
Claim Occurred in 1968
The defendant asserts that the relevant dates underlying the
plaintiff's claim against it are 1917, 1922, 1927, and 1928, the time
period in which the defendant issued "the original" bonds, thereby
rendering the bonds at issue in this case as mere substitutes. See Def.'s
Mot. at 11. According to the defendant, because the issuance of the 1968
bonds must be subject to the law applicable at the time of the issuance
of the original bonds, absolute sovereign immunity must apply to this
case. See id.