The case of the day is TIG Insurance Co. v. Republic of Argentina (D.D.C. 2019). TIG had an arbitral award against Argentina and a default judgment confirming the award that, with interest and penalties, was in the amount of $33.66 million. In 2018, Argentina decided to list real property in Washington for sale. The property had previously been used as a diplomatic residence but had fallen into disrepair. TIG moved for writs of attachment and execution, but Argentina immediately thereafter took the property off the market. The question was whether the property had immunity from execution under the FSIA.1
The statute, 28 U.S.C. § 1610(a), provides that the property in the United States of a foreign state, if “used for a commercial activity in the United States,” is not immune from attachment or execution if “the judgment was based on an order confirming an arbitral award rendered against the foreign state.” There was no question that the judgment was based on an order confirming an award; the question was whether the property was “used for a commercial activity in the United States.” There was also no question that if Argentina were trying to sell the property on the market, it would be using the property for a commercial activity; but it took the property off the market immediately after the motion for an attachment was filed. The question, then, was really about the time at which to measure whether the property is being used for a commercial activity. Is it at the time a writ of attachment is requested, or at the time the writ issues?
The court engaged in the kind of grammatical analysis of the statute that I find sometimes frustrating:
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 adjacent provision, § 1610(a)(2), confirms this present tense interpretation. “Had Congress intended” the exception to apply based on both past and present uses of the property “it presumably would have [said] so expressly as it did in the … following subparagraph.” Sandoz Inc. v. Amgen Inc., 137 S. Ct. 1664, 1677 (2017) (internal quotation marks omitted).
Leave aside the argument from Sandoz v. Amgen for a minute. If we just focus on the directly relevant language of the statute, does it support the court’s argument? The statute reads:
The property in the United States of a foreign state, as defined in section 1603(a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment in aid of execution …
The whole point, it seems to me, is that the statute talks about property “used for a commercial activity” without saying anything about when it was used. The statute doesn’t say “property that was used for a commercial activity;” it doesn’t say “property that is used for a commercial activity.” It seems to me that the language could take either construction, and that the real task is not to fuss about the grammatical tense and mood of the verb but instead to ask which rule is the right rule for substantive reasons. I recognize the sense in the statutory construction suggested by the court’s citation to Sandoz, but again, I do not think such reasoning is really that strong. On the other hand, the court went on to cite precedents that read the statute in the same way.
On the strength of the precedents, the decision is probably right and is certainly at least defensible. If we turn away from the grammar and the precedent to the substance, it seems very odd to me that the key time should be the time the attachment issues, since, except in the very rare case of an ex parte attachment, there will often if not always be time for the foreign sovereign to change the use of property. (There will not always be time, since in some cases it would be difficult to change the use, e.g., after the foreign sovereign had signed a commercial lease for a term of years). It woulds seem more sensible to ask, “what is this property generally used for during the relevant times?” rather than trying to focus on a single instant in time, like “Spotty Lincoln” .