MEMORANDUM OPINION
DABNEY
L. FRIEDRICH UNITED STATES DISTRICT JUDGE
Plaintiff
TIG Insurance Company seeks to collect on default judgments
against defendant Republic of Argentina by attaching an
Argentinian property located at 2136 R St., NW, Washington,
D.C. 20008. Before the Court are TIG's Motions for
Emergency Relief, Attachment-Related Relief, and a Writ of
Execution, Dkt. 2. For the reasons that follow, the Court
will deny TIG's motions.
I.
BACKGROUND
The
facts are undisputed. In 2000 and 2017, TIG instigated
arbitral proceedings and ultimately obtained default
judgments against Argentina and its predecessor-in-interest,
Caja Nacional. See TIG's Br. at 10, 12-13, Dkt.
2-1. Argentina's debt now totals $33, 666, 021.17,
including interest and penalties, and TIG has yet to receive
a single payment. Id. at 11, 13.
TIG's
motion was prompted by Argentina's recent decision to
list a particular property in the District of Columbia for
sale. Until the late 1990s, the property, which is located at
2136 R St., NW, was used as a diplomatic residence. TIG's
Suppl. Br. at 9, Dkt. 9. Since then, it has fallen into
disrepair and has become uninhabitable. Id. In 2003
and 2004, it was briefly listed for sale, but it was taken
off the market before any sale was consummated. Id.
at 3. It was then again listed for sale in the summer of
2018. Id. In response to this recent listing, TIG
filed motions for emergency relief, attachment-related
relief, and a writ of execution. TIG's Br. at 4- 6. But
three days after TIG filed its emergency motions, and before
this matter was assigned to the undersigned, Argentina took
its property off the market.[1] TIG's Suppl. Br. at
4.
Argentina
originally appeared specially for the limited purpose of
seeking dismissal for lack of personal jurisdiction and
insufficient service of process. Argentina's Mot. to
Dismiss at I, Dkt. 13. However, it later conceded both
grounds for dismissal, see Argentina's Notice
Regarding Mot. to Dismiss at 1, Dkt. 14, and the Court denied
its motion as moot, see Nov. 30, 2018 Minute Order.
Argentina now opposes TIG's motions, among other reasons,
on the ground that the property enjoys execution immunity
under the Foreign Sovereign Immunities Act (FSIA).
II.
LEGAL STANDARD
The
FSIA governs “claims of immunity in every civil action
against a foreign state or its political subdivisions,
agencies or instrumentalities.” Verlinden B.V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 488 (1983).
“[A]ny sort of immunity defense made by a foreign
sovereign in an American court must stand on the Act's
text.” Republic of Argentina v. NML Capital,
Ltd., 573 U.S. 134, 141-42 (2014).
Two
types of immunity exist under the FSIA: jurisdictional and
execution immunity. Id. at 142. First, foreign
states are immune from the jurisdiction of United
States courts “except as provided in sections 1605 to
1607.” 28 U.S.C. § 1604. Jurisdictional immunity
is not at issue here. Second, execution immunity
shields “property in the United States of a foreign
state . . . from attachment[, ] arrest[, ] and execution,
” 28 U.S.C. § 1609, unless the property falls
within a few enumerated exceptions codified in § 1610,
see Rubin v. Islamic Republic of Iran, 138 S.Ct.
816, 822 (2018). Execution immunity is a “default
presumption that the judgment creditor must defeat at the
outset.” Weinstein v. Islamic Republic of
Iran, 831 F.3d 470, 482 (D.C. Cir. 2016), abrogated
on other grounds by Rubin, 138 S.Ct. 816. “When
reviewing a plaintiff's unchallenged factual allegations
to determine whether they are sufficient” to overcome
immunity under the FSIA, courts “assume those
allegations to be true.” Simon v. Republic of
Hungary, 812 F.3d 127, 135 (D.C. Cir. 2016) (citation
omitted).
III.
ANALYSIS
To
prevail on its motions, TIG must establish that the
Argentinian property at issue falls within one of the narrow
exceptions to execution immunity under the FSIA. The parties
do not dispute that at least one of TIG's two judgments
are arbitral awards that permit attachment under §
1610(a)(6).[2] Nor do they dispute that at the time TIG
filed its motions, the property was “used for a
commercial activity” within the meaning of §
1610(a). See, e.g., Argentina's Opp'n at 11-
12; TIG's Reply at 4. Both parties agree that the
property was listed for sale when TIG first moved for relief
and that Argentina withdrew the property from the market
shortly after TIG filed its motions and before the matter was
assigned to the undersigned.
The
parties' sole dispute is the relevant time for assessing
execution immunity. TIG contends that a foreign state's
property may be attached as long as it was “used for a
commercial activity” at the time a motion for a writ of
attachment was filed. Argentina, on the other hand,
argues that the commercial activities exception applies if
the property is “used for a commercial activity”
at the moment a writ of attachment issues. Text,
structure, history, and precedent support Argentina's
reading: a property is immune from attachment unless it is
“used for a commercial activity” at the time a
writ of attachment issues.
The
Court begins with the text of the FSIA, mindful of its duty
to narrowly construe exceptions to foreign immunity.
Liber. E. Timber Corp. v. Gov't of Republic of
Liber., 659 F.Supp. 606, 610 (D.D.C. 2003) (“The
concept of ‘commercial activity' should be defined
narrowly because sovereign immunity remains the rule rather
than the exception and because courts should be cautious when
addressing areas that affect the affairs of foreign
governments.” (internal citation omitted)); see
also Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475
F.3d 1080, 1087 (9th Cir. 2007) (similar). The FSIA provides
that “the property in the United States of a foreign
state shall be immune from attachment[, ] arrest[, ] and
execution except as provided in section[] 1610 . . . .
” 28 U.S.C. § 1609. The commercial activities
exception provides that “[t]he property in the United
States of a foreign state . . . used for a commercial
activity in the United States, shall not be immune from
attachment in aid of execution, or from execution, upon a
judgment entered by a court of the United States, ”
id. § 1610(a), if one of several enumerated
provisions are satisfied, including if the movant holds a
“judgment . . . based on an order confirming an
arbitral award rendered against the foreign state, ”
id. § 1610(a)(6).
In
§ 1610(a), the word “used” is a past
participle phrased in the present tense. Cf. Hamer v.
City of Trinidad, 924 F.3d 1093, 1104 (10th Cir. 2019)
(statute providing that no individual “shall . . . be
excluded” is “phrased in the present tense
(albeit in the passive voice), which suggests that a
qualified individual who currently experiences
discrimination . . . suffers an injury”). Implicit in
the phrase “used for a commercial activity” is
some form of the verb “to be.” See The
American Heritage Book of English Usage 46 (1996)
(passive voice formed by coupling a “to be” verb
with a past participle). And here, that form of the verb
“to be” is “is” and not
“was.” As other courts have held, the §
1610(a) exception to executional immunity applies to property
that is (as opposed to was) “used for a
commercial activity.” Cf. FG Hemisphere Assocs. v.
Congo, 455 F.3d 575, 591 (5th Cir. 2006) (“To
apply the § 1610(a) exception to executional immunity,
there must be a finding that the property is located
in the United States and used for commercial activity in the
United States.” (emphases omitted and added)).
“The use of the present tense in a statute strongly
suggests it does not extend to past actions.”
Sherley v. Sebelius, 644 F.3d 388, 394 (D.C. Cir.
2011). And the statute's use of the phrase “is or
was used” in the ...