United States District Court for the District of Columbia
July 23, 2004.
AF-CAP, INC., Plaintiff,
THE REPUBLIC OF CONGO, Defendant.
The opinion of the court was delivered by: JAMES ROBERTSON, District Judge
This lawsuit involves an application for issuance of attachment
and writ of fieri facias. Before the Court is Af-Cap, Inc.'s
motion to strike all defenses and to issue writ of fieri
facias, and defendant Republic of Congo's opposition thereto.
Congo argues that the embassy is entitled to immunity pursuant to
the Foreign Sovereign Immunities Act (the "FSIA"), codified at
28 U.S.C. § 1602-1611, and the Vienna Convention on Diplomatic
Relations (the "Vienna Convention"), 23 U.S.T. 3227 (April 18,
1961). In the alternative, Congo contends that this action is
barred by the doctrine of collateral estoppel. For the reasons
stated below, Af-Cap's motion is denied and the case is
dismissed, sua sponte, for lack of subject matter
On February 1, 2000, Connecticut Bank of Commerce, a
predecessor-in-interest to Af-Cap, obtained a default judgment
against Congo in the amount of $10,375,244.83 plus interest and costs in the Supreme Court of the State of New York, Kings
County. The Bank registered that judgment in a Texas state court
and obtained from the clerk of that court, a writ of garnishment
against a group of oil companies. On February 9, 2001, Congo and
the garnishees removed the garnishment action to the United
States District Court for the Western District of Texas and moved
to dismiss. The district court dissolved the writs of garnishment
and dismissed the action, holding, inter alia, that the
garnishees' debts royalty and tax payments owed by the oil
companies to Congo did not arise from a "commercial activity in
the United States," 28 U.S.C. § 1610(a), and were immune from
On appeal, the United States Court of Appeals for the Fifth
Circuit held that the dispositive factual question was what the
royalties and tax payments were "used for," and not the question
the district court had focused on how they were generated. The
court held that "[i]f it turns out [upon remand] that the
royalties and tax obligations are not used for any commercial
activity in the United States, the district court should dissolve
the writs of garnishment and dismiss the action." Conn. Bank of
Commerce v. Republic of Congo, 309 F.3d 240, 260-61 (5th Cir.
2002), amending on denial of reh'g, 299 F.3d 378 (5th Cir.
2002). On April 7, 2003, upon remand, the district court held
that Congo does not use the royalties and tax payments for commercial activities in the United States. According to both
parties, Af-Cap's appeal of that decision is pending before the
On July 14, 2003, Af-Cap registered the Kings County default
judgment with the Superior Court of the District of Columbia and
then filed the application for issuance of attachment and writ of
fieri facias (now under review). Congo removed the action to
this Court on September 23, 2003.*fn1 In the District of
Columbia, Af-Cap seeks to attach real property of Congo located
at 4891 Colorado Avenue, N.W., Washington, D.C., and 5030 16th
Street, N.W., Washington, D.C. It is undisputed that the property
identified for attachment is the embassy of Congo.
Foreign Sovereign Immunities Act
Af-Cap's argument that Congo waived its right to assert
sovereign immunity under the FSIA in the Texas case is
rejected.*fn2 "[T]he 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, 434-35 (1989) (quoting Verlinden B.V. v. Cent. Bank of
Nigeria, 461 U.S. 480, 493 (1983)). "The Act itself grants
federal courts jurisdiction over civil actions against foreign
states . . . and it governs the extent to which a state's
property may be subject to attachment or execution." Republic of
Austria v. Altmann, 124 S.Ct. 2240, 2249 (2004). The FSIA
requires that attachment of a foreign state's property be
accomplished by a court order. See 28 U.S.C. § 1610(c) ("No
attachment or execution referred to in subsections (a) and (b) of
this section shall be permitted until the court has ordered such
attachment and execution. . . .").
American property owned by a foreign state can be immune from
attachment, but not if it is "used for a commercial activity"
and, inter alia, "the foreign state has waived its immunity
from attachment." 28 U.S.C. § 1610(a)(1). Congo asserts that its
embassy does not satisfy the "commercial activity" exception. I
"Commercial activity" is defined in the general definitions
section of the FSIA as
either a regular course of commercial conduct or a
particular commercial transaction or act. The
commercial character of an activity shall be
determined by reference to the nature of the course
of conduct or particular transaction or act, rather
that by reference to its purpose.
28 U.S.C. § 1603(d). Interpreting this definition in the context
of the commercial activity exception to jurisdictional immunity
(not directly implicated here), see id. § 1605(a)(2), the
Supreme Court explained:
[Section 1603(d)] leaves the critical term
"commercial" largely undefined: The first sentence
simply establishes that the commercial nature of an
activity does not depend upon whether it is a single
act or a regular course of conduct; and the second
sentence merely specifies what element of the conduct
determines commerciality (i.e., nature rather than
purpose), but still without saying what "commercial"
means. Fortunately, however, the FSIA was not written
on a clean slate. As we have noted, the Act (and the
commercial exception in particular) largely codifies
the so-called "restrictive" theory of foreign
sovereign immunity first endorsed by the State
Department in 1952. The meaning of "commercial" is
the meaning generally attached to that term under the
restrictive theory at the time the statute was
. . . .
. . . [W]e conclude that when a foreign government
acts, not as regulator of a market, but in the manner
of a private player within it, the foreign
sovereign's actions are "commercial" within the
meaning of the FSIA. Moreover, because the Act
provides that the commercial character of an act is
to be determined by reference to its "nature" rather
than its "purpose," 28 U.S.C. § 1603(d), the question
is not whether the foreign government is acting with
a profit motive or instead with the aim of fulfilling
uniquely sovereign objectives. Rather, the issue is
whether the particular actions that the foreign state
performs (whatever the motive behind them) are the
type of actions by which a private party engages in
"trade and traffic or commerce."
Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612-14
(1992) (internal citation and emphasis omitted).
Weltover's filigree upon the commercial activity exception is
not really necessary, however, to conclude that Congo's embassy property is not subject to attachment. The
proposition was nearly self-evident to the drafters of the FSIA,
see 1976 U.S. Code Cong. & Admin. News 6604, 6628 ("embassies
and related buildings could not be deemed to be property used for
a `commercial' activity as required by section 1610(a)"), and
numerous courts have confirmed that view. See, e.g., City of
Englewood v. Socialist People's Libyan Arab Jamahiriya,
773 F.2d 31, 36-37 (3d Cir. 1985) (use of property as a diplomatic
residence "as a matter of law . . . is not commercial activity");
Flatow v. Islamic Republic of Iran, 76 F. Supp.2d 16, 22
(D.D.C. 1999) (use of the embassy and residences of Iran to
support Iran's diplomatic activities "was sovereign in nature,
not commercial"); S & S Machinery Co. v. Masinexportimport,
802 F. Supp. 1109, 1111-12 (S.D.N.Y. 1992) (mission buildings are not
used for commercial activity and do not fall within FSIA
exception to immunity).
The Congolese embassy is not "used for a commercial activity,"
and does not fall within the FSIA's immunity exception of §
Vienna Convention on Diplomatic Relations
Even if the Congolese embassy were not immune from attachment
under the FSIA, it would be immune from attachment under the
Vienna Convention on Diplomatic Relations. See, e.g.,
Mashayekhi v. Iran, 515 F. Supp. 41, 42 (D.D.C. 1981) ("Under
the FSIA . . ., what were then `existing international agreements'
remain valid and superior to the FSIA wherever terms concerning
immunity contained in the previous agreement conflict with the
FSIA."). It is undisputed that Af-Cap's target of attachment is,
and is only, the Congolese embassy. Article 22 of the Vienna
1. The premises of the mission shall be inviolable.
The agents of the receiving State may not enter them,
except with the consent of the head of the mission.
2. The receiving State is under a special duty to
take all appropriate steps to protect the premises of
the mission against any intrusion or damage and to
prevent any disturbance of the peace of the mission
or impairment of its dignity.
3. The premises of the mission, their furnishings and
other property thereon and the means of transport of
the mission shall be immune from search, requisition,
attachment or execution.
23 U.S.T. 3227, at Art. 22. The language of this Article
"contains the advisedly categorical, strong word `inviolable' and
makes no provision for exceptions other than those set forth in
Article 31," (which is not applicable here). 767 Third Ave.
Assocs. v. Permanent Mission, Republic of Zaire, 988 F.2d 295
298 (2d Cir. 1993).
Although the Vienna Convention refers only to "mission," the
term generally used is "embassy." United States v. Kostadinov,
734 F.2d 905, 906 n. 1 (2d Cir. 1984). The United States and
Congo are parties to the Vienna Convention on Diplomatic
Relations. Because the Vienna Convention expressly provides that "[t]he premises of the mission . . . shall be
immune from . . . attachment," the embassy must be accorded
immunity under the Convention. ORDER
For the reasons set forth in the accompanying memorandum,
plaintiff's motion to strike all defenses and to issue writ of
fieri facias [3/4] is denied, and case is dismissed, sua
sponte, for lack of subject matter jurisdiction.