Cite as: 541 U. S. (2004) 1 K SUPREME COURT OF THE UNITED ...

Cite as: 541 U. S. ____ (2004) 1

KENNEDY, J., dissenting

SUPREME COURT OF THE UNITED STATES_________________

No. 03�13_________________

REPUBLIC OF AUSTRIA ET AL., PETITIONERS v.MARIA V. ALTMANN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE NINTH CIRCUIT

[June 7, 2004]

JUSTICE KENNEDY, with whom THE CHIEF JUSTICE andJUSTICE THOMAS join, dissenting.

This is an important decision for interpreting the For-eign Sovereign Immunities Act of 1976 (FSIA or Act), 28U. S. C. §1602 et seq. As the Court�s careful opinion illus-trates, the case is difficult. In my respectful view, how-ever, its decision is incorrect.

At the outset, here is a summary of my primary con-cerns with the majority opinion: To reach its conclusionthe Court must weaken the reasoning and diminish theforce of the rule against the retroactivity of statutes, a ruleof fairness based on respect for expectations; the Courtabruptly tells foreign nations this important principle ofAmerican law is unavailable to them in our courts; this isso despite the fact that treaties and agreements on thesubject of expropriation have been reached against abackground of the immunity principles the Court nowrejects; as if to mitigate its harsh result, the Court addsthat the Executive Branch has inherent power to inter-vene in cases like this; this, however, is inconsistent withthe congressional purpose and design of the FSIA; thesuggestion reintroduces, to an even greater degree thanbefore, the same influences the FSIA sought to eliminatefrom sovereign immunity determinations; the Court�sreasoning also implies a problematic answer to a separa-

2 REPUBLIC OF AUSTRIA v. ALTMANN


tion-of-powers question that the case does not present andthat should be avoided; the ultimate effect of the Court�sinviting foreign nations to pressure the Executive is torisk inconsistent results for private citizens who sue,based on changes and nuances in foreign affairs, and toadd prospective instability to the most sensitive area offoreign relations.

The majority�s treatment of our retroactivity principles,its rejection of the considered congressional and Executivejudgment behind the FSIA, and its questionable constitu-tional implications require this respectful dissent.

IThe FSIA�s passage followed 10 years of academic and

legislative effort to establish a consistent framework forthe determination of sovereign immunity when foreignnations are haled into our courts. See H. R. Rep. No. 94�1487, p. 9 (1976) (hereinafter H. R. Rep.). As we explainedin Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480(1983), the preceding 30 years had been marked by anemerging or common-law regime in which courts followedthe principles set out in the letter from Jack B. Tate, ActingLegal Adviser, U. S. Dept. of State, to Acting U. S. AttorneyGeneral Philip B. Perlman (May 19, 1952), reprinted in 26Dept. State Bull. 984�985 (1952) (hereinafter Tate Letter orLetter). See ante, at 11. Even after the Tate Letter, how-ever, courts continued to defer to the Executive�s case-specific views on whether immunity was due. See Verlin-den, supra, at 487�488. This regime created �considerableuncertainty,� H. R. Rep., at 9, and a �troublesome� inconsis-tency in immunity determinations, 461 U. S., at 487. Theinconsistency was the predictable result of changes inadministrations and shifting political pressures. Congressacted to bring order to this legal uncertainty: �[U]niformityin decision . . . is desirable since a disparate treatment ofcases involving foreign governments may have adverse

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foreign relations consequences.� H. R. Rep., at 13. See alsoid., at 7 (The �[FSIA] is urgently needed legislation�). Con-gress placed even greater emphasis on the implications thatinconsistency had for our citizens, concluding that the Actwas needed to �reduc[e] the foreign policy implications ofimmunity determinations and assur[e] litigants that theseoften crucial decisions are made on purely legal grounds andunder procedures that insure due process.� Ibid.

There is no dispute that Congress enacted the FSIA toanswer these problems, for the Act�s purpose is codifiedalong with its governing provisions. See 28 U. S. C. §1602.To this end, the Act provides specific principles by whichcourts are to decide claims for foreign sovereign immunity.See ibid. So structured, the Act sought to implement itsobjectives by removing the Executive influence from thestandard determination of sovereign immunity questions.See H. R. Rep., at 7 (under the FSIA �U. S. immunity prac-tice would conform to the practice in virtually every othercountry�where sovereign immunity decisions are madeexclusively by the courts and not by a foreign affairsagency�).

IIA

The question is whether the courts, by applying thestatutory principles the FSIA announced, will impose aretroactive effect in a case involving conduct that occurredover 50 years ago, and nearly 30 years before the FSIA�senactment. It is our general rule not to apply a statute ifits application will impose a retroactive effect on the liti-gants. See Landgraf v. USI Film Products, 511 U. S. 244(1994). This is not a rule announced for the first time inLandgraf; it is an old and well-established principle. �It isa principle in the English common law, as ancient as thelaw itself, that a statute, even of its omnipotent parlia-ment, is not to have a retrospective effect.� Dash v. Van



Kleeck, 7 Johns. 477, 503 (N. Y. 1811) (Kent, C. J.); seealso Landgraf, 511 U. S., at 265 (�[T]he presumptionagainst retroactive legislation is deeply rooted in ourjurisprudence, and embodies a legal doctrine centuriesolder than our Republic�). The principle stems from fun-damental fairness concerns. See ibid. (�Elementary con-siderations of fairness dictate that individuals should havean opportunity to know what the law is and to conformtheir conduct accordingly; settled expectations should notbe lightly disrupted� (footnote omitted)).

The single acknowledged exception to the rule againstretroactivity is when the statute itself, by a clear state-ment, requires it. See id., at 264 (� �Congressional enact-ments . . . will not be construed to have retroactive effectunless their language requires this result� � (quoting Bo-wen v. Georgetown Univ. Hospital, 488 U. S. 204, 208(1988))).

The FSIA does not meet this exception because it con-tains no clear statement requiring retroactive effect. Themajority concedes this at the outset of its analysis, sayingthe text of the FSIA �falls short of an �expres[s] pre-scri[ption of] the statute�s proper reach.� � Ante, at 16(alterations in original) (quoting Landgraf, supra, at 280).

In an awkward twist, however, the Court also maintainsthat the �[Act�s] language is unambiguous,� ante, at 19,and that it �suggests Congress intended courts to resolveall [foreign sovereign immunity] claims �in conformity withthe principles set forth� in the Act, regardless of when theunderlying conduct occurred.� Ibid. If the statute were infact this clear, the exception would apply. Nothing in ourcases suggests that statutory language might be �unambi-guous,� yet still �not sufficient to satisfy Landgraf�s �ex-press command.� � Ibid. If the Court really thinks thestatute is unambiguous, it should rest on that premise.

In any event, the Court�s suggestion that the FSIA doescommand retroactive application unambiguously is not

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right. The Court�s interpretation of §1602 takes the perti-nent �henceforth� language in isolation. See ante, at 18�19. When that language instead is read in the context ofthe full section, it is quite clear that it does not speak toretroactivity. The section is as follows:

�Congress finds that the determination by UnitedStates courts of the claims of foreign states to immu-nity from the jurisdiction of such courts would servethe interests of justice and would protect the rights ofboth foreign states and litigants in United Statescourts. Under international law, states are not im-mune from the jurisdiction of foreign courts insofar astheir commercial activities are concerned, and theircommercial property may be levied upon for the satis-faction of judgments rendered against them in connec-tion with their commercial activities. Claims of foreignstates to immunity should henceforth be decided bycourts of the United States and of the States in con-formity with the principles set forth in this [statute].�

The first two sentences in §1602 describe the Act�s inten-tion to replace the former framework for sovereign immu-nity determinations with a new court-controlled regime.The third sentence, which contains the �henceforth�phrase, serves to make clear that the new regime replacesthe old regime from that point on. Compare §1602 (�im-munity [claims] should henceforth be decided by [Ameri-can] courts . . . in conformity with the [Act�s] principles�),with Webster�s Third New International Dictionary 1056(1976) (defining �henceforth� as �from this point on�).That does not address the topic of retroactivity.

If one of the Act�s principles were that �the Act shallgovern all claims, whenever filed, and involving conductthat occurred whenever in time,� the provision wouldcommand retroactive application. A statement like this,however, cannot be found in the FSIA. The statute says



only that it must be applied �henceforth.� That says nomore than that the principles immediately apply from thepoint of the Act�s effective date on, the same type of com-mand that Landgraf rejected as grounds for an expresscommand of retroactive application. Cf. 511 U. S., at 257(analyzing a statutory provision that provided it was to� �take effect upon enactment� �). As JUSTICE STEVENSnoted for the Court in that case: �A statement that a stat-ute will become effective on a certain date does not evenarguably suggest that it has any application to conductthat occurred at an earlier date.� Ibid.

In order for the term �henceforth� to command retroac-tivity, it would have to be accompanied by reference tospecific proceedings or claims (i.e., specific as to when theywere commenced, if they are pending, or when they weredetermined). To confirm this one need only compare theFSIA�s isolated use of the term �henceforth� to those statu-tory provisions that have been interpreted to requireretroactive effect. See, e.g., Carpenter v. Wabash R. Co.,309 U. S. 23, 27 (1940) (�The statute applies to �equityreceiverships of railroad corporations now . . . pending inany court of the United States� �); Freeborn v. Smith, 2Wall. 160, 162 (1865) (� �all cases of appeal . . . heretoforeprosecuted and now pending in the Supreme Court of theUnited States . . . may be heard and determined by theSupreme Court of the United States� �). See also Landgraf,511 U. S., at 255�256 (explaining that before the FSIAwas enacted, another bill was passed by Congress butvetoed by the President with �language expressly callingfor [retroactive] application of many of its provisions�); id.,at 255, n. 8 (citing the following example of a provisioncontaining an express command for retroactive applica-tions: � �[These] sections . . . shall apply to all proceedingspending on or commenced after the date of the enactmentof this Act� �). On its own, �henceforth� does not speakwith the precision and clarity necessary to command

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retroactivity.JUSTICE BREYER�s suggestion that Congress� intention

as to retroactivity can be measured by the fact that theFSIA does not bear the same language as some otherstatutes and conventions Congress has authored does notchange the analysis. See ante, at 5 (concurring opinion).To accept that interpretive approach is to abandon ourusual insistence on a clear statement.

BBecause the FSIA does not exempt itself from the usual

rule against retroactivity with a clear statement, our casesrequire that we consider the character of the statute, andof the rights and liabilities it creates, to determine if itsapplication will impose retroactive effect on the parties.See Landgraf, 511 U. S., at 280 (�When . . . the statutecontains no such express command, the court must deter-mine whether the new statute would have retroactiveeffect, i.e., whether it would impair rights a party pos-sessed when he acted, increase a party�s liability for pastconduct, or impose new duties with respect to transactionsalready completed�). If it does, we must refuse to apply itin that manner. Ibid.

The essential character of the FSIA is jurisdictional.The conclusion that it allows (or denies) jurisdiction fol-lows from the language of the statute. See §1602 (the Actinvolves �the determination by United States courts of theclaims of foreign states to immunity from the jurisdictionof such courts�). By denying immunity in certain classesof cases�those in the Act�s succeeding provisions�theFSIA, in effect, grants jurisdiction over those disputes.The Court as much as admits all this, saying that �theFSIA . . . opens United States courts to plaintiffs with pre-existing claims against foreign states.� Ante, at 16.

The statute�s mechanism of establishing jurisdictionaleffects (i.e., either allowing jurisdiction or denying it) has



important implications for the retroactivity question. Onthe one hand, jurisdictional statutes, as a class, tend notto impose retroactive effect. As the Court explained inLandgraf, �Application of a new jurisdictional rule usually�takes away no substantive right but simply changes thetribunal that is to hear the case.� Present law normallygoverns in such situations because jurisdictional statutes�speak to the power of the court rather than to the rightsor obligations of the parties.� � 511 U. S., at 274 (citationomitted).

On the other hand, there is a subclass of statutes that,though jurisdictional, do impose retroactive effect. Theseare statutes that confer jurisdiction where before therewas none. That is, they altogether create jurisdiction. Weexplained the distinction in a unanimous opinion inHughes Aircraft Co. v. United States ex rel. Schumer:

�Statutes merely addressing which court shall havejurisdiction to entertain a particular cause of actioncan fairly be said merely to regulate the secondaryconduct of litigation and not the underlying primaryconduct of the parties. Such statutes affect only wherea suit may be brought, not whether it may be broughtat all. The 1986 amendment, however, does notmerely allocate jurisdiction among forums. Rather, itcreates jurisdiction where none previously existed; itthus speaks not just to the power of a particular courtbut to the substantive rights of the parties as well.Such a statute, even though phrased in �jurisdictional�terms, is as much subject to our presumption againstretroactivity as any other.� 520 U. S. 939, 951 (1997)(citations omitted).

The principles of Hughes Aircraft establish that retroac-tivity analysis of a jurisdictional statute is incompleteunless it asks whether the provision confers jurisdictionwhere there was none before. Again, this is common

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ground between the majority and this dissent. The ma-jority recognizes the import of Hughes Aircraft�s holdingand affirms that courts may not apply statutes that conferjurisdiction over a cause of action for which no jurisdictionexisted when the sued-upon conduct occurred. �Suchstatutes,� the majority acknowledges, � �even thoughphrased in �jurisdictional� terms, [are] as much subject toour presumption against retroactivity as any other[s].� �Ante, at 17 (alterations in original) (quoting Hughes Air-craft, supra, at 951).

If the FSIA creates new jurisdiction, Hughes Aircraftcontrols and instructs us not to apply it to cases involvingpreenactment conduct. On the other hand, if the FSIA didnot create new jurisdiction�including where it in factstripped previously existing jurisdiction from the courts�we may apply its statutory terms without fear of workingany retroactive effect. See Lindh v. Murphy, 521 U. S.320, 342�343, n. 3 (1997) (REHNQUIST, C. J., joined bySCALIA, KENNEDY, and THOMAS, JJ., dissenting) (�Al-though in Hughes Aircraft we recently rejected a presump-tion favoring retroactivity for jurisdiction-creating stat-utes, nothing in Hughes disparaged our longstandingpractice of applying jurisdiction-ousting statutes to pend-ing cases� (citation omitted)).

CTo this point, then, I am in agreement with the Court on

certain relevant points�the FSIA does not contain a clearretroactivity command; the statute is jurisdictional innature; and jurisdictional statutes impose retroactiveeffect when they confer jurisdiction where none beforeexisted. Now, however, our paths diverge. For though themajority concedes these critical issues, it does not addressthe question to which they lead: Does the FSIA conferjurisdiction where before there was none? Rather thanasking that obvious question, the Court retreats to non



sequitur. After this recitation of the Hughes Aircraft ruleand with no causal reasoning from it, the Court concludes:�Thus, Landgraf�s default rule does not definitively resolvethis case.� Ante, at 17. It requires a few steps to under-take the analysis the Court omits, but in the end theproper conclusion is that, assuming the court on remandfound immunity existed under the pre-FSIA regime, thestatute does create jurisdiction where there was nonebefore.

The analysis begins with 1948, when the conduct oc-curred. See INS v. St. Cyr, 533 U. S. 289, 321 (2001)(�[T]he judgment whether a particular statute acts retro-actively �should be informed and guided by �familiar con-siderations of fair notice, reasonable reliance, and settledexpectations� � � (quoting Martin v. Hadix, 527 U. S. 343,358 (1999) (in turn quoting Landgraf, supra, at 270))). Theparties� expectations were then formed by an emerging orcommon law framework governing claims of foreign sover-eign immunity in American courts.

Parties in 1948 would have expected courts to apply thisgeneral law of foreign sovereign immunity in the future,and so also to apply whatever rules the courts �discovered�(if one subscribes to Blackstone�s view of common law) or�created� (if one subscribes to Holmes�) in the interveningtime between the party�s conduct and its being subject tosuit. Compare 1 W. Blackstone, Commentaries *68 (�[T]heonly method of proving, that this or that maxim is a rule ofthe common law, is by shewing that it hath been alwaysthe custom to observe it�), with Holmes, The Path of theLaw, 10 Harv. L. Rev. 457, 466 (1897) (�Behind the logicalform [of common law decision making] lies a judgment asto the relative worth and importance of competing legisla-tive grounds, often an inarticulate and unconscious judg-ment, it is true, and yet the very root and nerve of thewhole proceeding�). To conduct the analysis, then, weshould ask how the jurisdictional effects the FSIA creates

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compare to those that would govern were the prior regimestill in force.

There is little dispute that in 1948 foreign sovereigns,and all other litigants, understood foreign sovereign im-munity law to support three valid expectations. (1) Na-tions could expect that a baseline rule of sovereign immu-nity would apply. (2) They could expect that if theExecutive made a statement on the issue of sovereignimmunity that would be controlling. And (3), they couldexpect that they would be able to petition the Executivefor intervention on their behalf. See National City Bank ofN. Y. v. Republic of China, 348 U. S. 356, 358�361 (1955)(summing up the Court�s approach to sovereign immunityquestions); id., at 366�368 (Reed, J., dissenting) (summingup the same principles).

These three expectations were little different in 1976,before the FSIA was passed. The Tate Letter did an-nounce the policy of restrictive foreign sovereign immu-nity, and this was an important doctrinal development.The policy, however, was within the second expectationthat the Executive could shape the framework for foreignsovereign immunity. Under the second category, a foreignsovereign would have expected its immunity to be con-trolled by such a statement.

The Executive�s post-Tate Letter practices and a state-ment by the Court confirm this is the correct way to un-derstand both the operation of the general law of foreignrelations and the expectations it built. After the TateLetter�s issuance, the Executive evaluated suits involvingpre-Tate Letter conduct under the Letter�s new standardwhen determining whether to submit suggestions of im-munity to the courts. The Court, likewise, seems to haveunderstood the Tate Letter to require this sort of applica-tion. In National City Bank of N. Y., the Court suggestedthat the Letter governed in a case involving pre-1952conduct, though careful consideration of the question was



unnecessary there. 348 U. S., at 361.The governing weight the Tate Letter had as a state-

ment of Executive policy does not detract from the thirdexpectation foreign sovereigns continued to have�thatthey could petition the Executive for case-specific state-ments. Thus, in National City Bank of N. Y. the Courttook note that the Government had not submitted a case-specific suggestion as to immunity. See id., at 364 (�[O]urState Department neither has been asked nor has it giventhe slightest intimation that in its judgment allowance ofcounterclaims in such a situation would embarrassfriendly relations with the Republic of China�).

Today, to measure a foreign sovereign�s expectation ofliability for conduct committed in 1948, the Court shouldapply the three discussed, interlocking principles of law,which the parties then expected. The Court of Appeals didnot address the question in this necessary manner.Rather than determining how the jurisdictional resultproduced by the FSIA differs from the result a court wouldreach if it applied the legal principles that governed beforethe enactment of the FSIA, the court instead asked whatthe Executive would have done in 1948. See 317 F. 3d954, 965 (CA9 2002) (�Determining whether the FSIA mayproperly be applied thus turns on the question whetherAustria could legitimately expect to receive immunityfrom the executive branch of the United States�). That isnot the appropriate way to measure Austria�s expecta-tions. It is an unmanageable inquiry; and it usurps theauthority the Executive, as it is constituted today, hasunder the pre-FSIA regime. In essence, the Court ofAppeals wrongly assumed responsibility for the politicalquestion, rather than confining its judgment to the legalone.

Answering the legal question, in contrast, requiresapplying the principles noted above: We assume a baselineof sovereign immunity and then look to see if there is any

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Executive statement on the sovereign immunity issue thatdisplaces the presumption of immunity. There is, ofcourse, at least one Executive statement on the issue thatdisplaces the immunity presumption to some degree. It isthe Tate Letter itself. By the Tate Letter the Executiveestablished, as a general rule, that the doctrine of restric-tive sovereign immunity would be followed. In general,the doctrine provided immunity for suits involving publicacts and denied it for suits involving commercial or privateacts. 26 Dept. State Bull., at 984. These principles con-trol, as the Executive has taken no case-specific position inthe instant matter. If petitioners� conduct would not besubject to suit under the Tate Letter principles, the FSIAcannot alter that result without imposing retroactiveeffect, creating new jurisdiction in American courts.

Petitioners and the United States, appearing as amicuscuriae, argue that the Tate Letter doctrine would grantimmunity (i.e., deny jurisdiction) for suits involving expro-priation. They say the Tate Letter rules contain noprinciple that parallels §1605(a)(3), the FSIA�s expropria-tion exception on which respondent relies to establishjurisdiction:

�The expropriation exception . . . was a new develop-ment in the doctrine of sovereign immunity when theFSIA was enacted . . . . [I]n Victory Transport Inc. v.Comisaria General de Abastecimientos y Transportes,336 F. 2d 354 (CA2 1964), cert. denied, 381 U. S. 934(1965)[,] [t]he court explained that, even under the re-strictive theory of sovereign immunity, foreign statescontinued to enjoy immunity with respect to . . . suitsrespecting the �nationalization� of property.� Brief forUnited States as Amicus Curiae 12.

This argument may be correct in the end; but, it should benoted, the petitioners� reliance on Victory Transport, Inc.v. Comisaria General, 336 F. 2d 354 (CA2 1964), is not



conclusive. Victory Transport does not say that nationali-zations of property are per se exempt under the restrictivetheory of sovereign immunity. The Court of Appeals forthe Second Circuit said:

�The purpose of the restrictive theory of sovereignimmunity is to try to accommodate the interest of in-dividuals doing business with foreign governments inhaving their legal rights determined by the courts,with the interest of foreign governments in being freeto perform certain political acts without undergoingthe embarrassment or hindrance of defending thepropriety of such acts before foreign courts. . . . Such[immune] acts are generally limited to the followingcategories:

. . . . .�(2) legislative acts, such as nationalization.� Id., at

at 360 (citations omitted).

As the court�s language makes clear, the pertinent cate-gory of exempt action is legislative action, of which na-tionalization was but one example. The expropriationalleged in this case was not a legislative act.

Petitioners can still prevail by showing that there wouldhave been no jurisdiction under the pre-FSIA governingprinciples. That could be established by showing that theconduct at issue was considered a public act under thoseprinciples and that the principles contain no expropriationexception similar to that codified in §1605(a)(3), whichwould deny otherwise available immunity. We need not,and ought not, resolve the question in the first instance.Neither the District Court nor the Court of Appeals hasyet addressed it. The issue is complex and would benefitfrom more specific briefing, arguments, and considerationof the international law sources bearing upon the scope ofimmunity the Tate Letter announced. I would vacate thejudgment of the Court of Appeals and remand for further

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proceedings to consider the question.

DBy declaring that this statute is not subject to the usual

presumption against retroactivity, and so avoiding thecritical issue in this case, the Court puts the force and thevalidity of our precedent in Hughes Aircraft into seriousquestion. The Court, in rejecting the usual analysis,states three rationales to justify its approach. Thearguments neither distinguish this case from HughesAircraft nor suffice to explain rejecting the rule againstretroactivity.

The Court suggests the retroactivity analysis should notapply because the rights at issue are not private rights.See ante, at 17 (�[The] antiretroactivity presumption,while not strictly confined to cases involving privaterights, is most helpful in that context�). This is uncon-vincing. First, the language from Landgraf on which theCourt relies undercuts its position. It confirms, in clearterms, that retroactivity presumptions work equally infavor of governments. Per JUSTICE STEVENS, the Courtsaid:

�While the great majority of our decisions relyingupon the antiretroactivity presumption have involvedintervening statutes burdening private parties, wehave applied the presumption in cases involving newmonetary obligations that fell only on the govern-ment.� 511 U. S., at 271, n. 25.

Even if Landgraf�s reference to private rights could beread to establish that retroactivity analysis does notstrictly protect government�and I do not see how that ispossible in light of the above-quoted language�the Land-graf passage refers to the Federal Government. If thedistinction mattered for retroactivity purposes, presuma-bly it would have been on the basis that Congress, by



virtue of authoring the legislation, is itself fully capable ofprotecting the Federal Government from having its rightsdegraded by retroactive laws. Private parties, it might besaid, do not have the same built-in assurance. Here, ofcourse, the Federal Government is not a party; instead aforeign government is. Foreign governments are as vul-nerable as private parties to the disruption caused byretroactive laws. Indeed, foreign sovereigns may have lessrecourse than private parties to prevent or remedy retro-active legislation, since they cannot hold Congress respon-sible through the election process. The Court�s private-rights argument, therefore, does not sustain its departurefrom our usual presumption against retroactivity.

The majority tries to justify departing from our usualprinciples in a second way. It argues that the purposes offoreign sovereign immunity are not concerned with al-lowing �foreign states and their instrumentalities to shapetheir conduct in reliance on the promise of future immu-nity.� Ante, at 18. JUSTICE BREYER takes the suggestionfurther. He argues not that foreign sovereign immunitydoctrine is not concerned with reliance interests but, evenfurther, that in fact foreign sovereigns have no relianceinterests in receiving immunity in our courts. See ante, at7�9. This reasoning overlooks the plain fact that there arereliance interests of vast importance involved, interestssurely as important as those stemming from contractrights between two private parties. As the Executive hasmade clear to us, these interests span a range of time afterthe conduct, even up to the present day. See Brief forUnited States as Amicus Curiae 8. For example, at stakemay be pertinent treaty rights and international agree-ments intended to remedy the earlier conduct. These arematters in which the negotiating parties may have actedon a likely assumption of sovereign immunity, as definedand limited by pre-FSIA expectations: �[The] conduct atissue [has been] extensively addressed through treaties,

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agreements, and separate legislation that were all adoptedagainst the background assumption [of the pre-FSIAforeign sovereign immunity regime].� Ibid. Lurking inthe Court�s and JUSTICE BREYER�s contrary suggestions isthe implication that the expectations of foreign powers areminor or infrequent. Surely that is not the case. By to-day�s decision the Court opens foreign nations worldwideto vast and potential liability for expropriation claims inregards to conduct that occurred generations ago, includ-ing claims that have been the subject of internationalnegotiation and agreement. There are, then, relianceinterests of magnitude, which support the usual presump-tion against retroactivity.

In addition, the statement that the purposes of foreignsovereign immunity have not much to do with the pre-sumption against retroactivity carries little weight; thepresumption against retroactivity has independent justifi-cation. The Court has noted this, saying that the purposesof the underlying substantive law are not conclusive of theretroactivity analysis. �It will frequently be true . . . thatretroactive application of a new statute would vindicate itspurpose more fully. That consideration, however, is notsufficient to rebut the presumption.� Landgraf, 511 U. S.,at 285�286 (footnote omitted). As a result, diminishedconcerns of unfair surprise and upset expectations�evenassuming they existed�do not displace the usual pre-sumption. That is why in Landgraf, though �concerns ofunfair surprise and upsetting expectations [were] attenu-ated in the case of intentional employment discrimination,which ha[d] been unlawful for more than a generation,�the Court concluded, nevertheless, that it could not givethe statute retroactive effect. Id., at 282�283, n. 35.

The Court, lastly, adds in a footnote that the �FSIAdiffers from the statutory amendment at issue in HughesAircraft� because in Hughes Aircraft the jurisdictionallimitation attached directly to the cause of action and so



ensured that suit could be brought only in accordance withthe jurisdictional provision (and any changes to it). Ante,at 17, n. 15. With the FSIA, in contrast, the jurisdictionallimitation is not attached to the cause of action. Theresult, the Court implies, is that even if a pre-FSIA juris-dictional bar applied in American courts, suit on the Cali-fornia cause of action might still have been able to havebeen brought in foreign courts, and such availability ofsuit would defeat retroactivity concerns. Ibid. (�The Actdoes not . . . purport to limit foreign countries� decisionsabout what claims against which defendants their courtswill entertain�); see also ante, at 2 (SCALIA, J., concurring).What is of concern in the retroactivity analysis thatHughes Aircraft sets out, however, is the internal integrityof American statutes, not of whether an American lawallows suit where before none was allowed elsewhere inthe world. This is unsurprising, as the task of canvassingwhat causes of action foreign countries might have al-lowed before a new jurisdictional regime made such suitsalso viable in American courts would be a most difficulttask to assign American courts.

In the end, the majority turns away from our usualretroactivity analysis because �this [is a] sui generis con-text.� Ante, at 18. Having created a new, extra exceptionthat frees it from the usual analysis, it can conclude simplythat the usual rule �does not control the outcome in thiscase.� Ante, at 13. The implications of this holding are notentirely clear, for the new exception does not rest on anyapparent principle.

There is a stark contrast between the Court�s analysisand that of the Courts of Appeals that have addressed thequestion. In this case the Court of Appeals for the NinthCircuit, like every other Court of Appeals to have consid-ered the question, concluded that the FSIA must be inter-preted under the usual retroactivity principles, just likeany other statute. See 317 F. 3d 954. Accord, Hwang

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Geum Joo v. Japan, 332 F. 3d 679 (CADC 2003); CarlMarks & Co. v. Union of Soviet Socialist Republics, 841F. 2d 26 (CA2 1988); Jackson v. People�s Republic ofChina, 794 F. 2d 1490 (CA11 1986).

The conclusion to which the sui generis rule leads theCourt shows the rule lacks a principled basis: �[W]e thinkit more appropriate, absent contraindications, to defer tothe most recent [decision by the political branches on theforeign sovereign immunity question]�namely, the FSIA.�Ante, at 18. The question, however, is not whether theFSIA governs, but how to interpret the FSIA. The Courtseems to think the FSIA implicitly adopts a presumptionof retroactivity, though our cases instruct just the oppo-site. �[I]n Hughes Aircraft . . . we . . . rejected a presump-tion favoring retroactivity for jurisdiction-creating statutes.�Lindh, 521 U. S., at 342, n. 3 (REHNQUIST, C. J., joined bySCALIA, KENNEDY, and THOMAS, JJ., dissenting).

JUSTICE BREYER would supplement the rationale for theCourt�s deciding the case outside the bounds of our usualmode of retroactivity analysis. He says the Court can takethis path because sovereign immunity �is about a defen-dant�s status at the time of suit, not about a defendant�sconduct before the suit.� Ante, at 5. The argument is avariant of that made by respondent. See Brief for Respon-dent 27 (�Dole Food controls the result in this case�).Respondent�s argument fails, of course, because in thiscase the defendants� status at the time of suit is that of thesovereign, not that of private parties. That distinctionalone makes misplaced reliance on Dole Food Co. v. Pa-trickson, 538 U. S. 468 (2003) (holding that a now-privatecorporation could not assert sovereign immunity in a suitinvolving events that occurred when the entity was ownedby a foreign sovereign). JUSTICE BREYER�s further rea-soning, however, is also unacceptable. When jurisdictionalrules are at stake, status and conduct factors will at timesintersect. Most assuredly, we would not disown the usual



retroactivity principles in a case involving a status-basedjurisdictional statute that creates jurisdiction over privatelitigants where before there was none simply because thecreation of jurisdiction turned in part on the status of oneof the litigants. JUSTICE BREYER�s additional rationale,however, has this very implication.

We should not ignore the statutory retroactivity analy-sis just because the parties and the Court have failed toconsider it before. See ante, at 7�8 (BREYER, J., concur-ring) (relying on the fact that in Verlinden the Courtapplied the FSIA to a contract that predated the Act).� �[T]his Court has never considered itself bound [by priorsub silentio holdings] when a subsequent case finallybrings the jurisdictional issue before us.� Hagans v. La-vine, 415 U. S. 528, 535, n. 5 (1974).� Will v. MichiganDept. of State Police, 491 U. S. 58, 63, n. 4 (1989) (altera-tion in original). Reliance on the fact that the immunityprinciples were applied retroactively in the common-lawcontext of the pre-FSIA regime is also irrelevant. Seeante, at 7 (BREYER, J., concuring). This case concerns theretroactive effect of enacted statutory law, not of courtdecisions interpreting the common law.

IIIToday�s decision contains another proposition difficult to

justify and that itself does considerable damage to theFSIA. Abandoning standard retroactivity principles, theCourt attempts to compensate for the harsh results itreaches by inviting case by case intervention by the Ex-ecutive. This does serious harm to the constitutionalbalance between the political branches.

The Court says that the Executive may make sugges-tions of immunity regarding FSIA determinations andimplies that courts should give such suggestions defer-ence. See ante, at 23�24 (�[S]hould the State Departmentchoose to express its opinion on the implications of exer-

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cising jurisdiction over particular petitioners in connectionwith their alleged conduct, that opinion might well beentitled to deference as the considered judgment of theExecutive� (footnote omitted)). That invitation would bejustified if the Court recognized that the Executive�s rolewas retrospective only, i.e., implicated only in suits in-volving preenactment conduct and only as a means forresolving the retroactivity analysis. The law that gov-erned before the FSIA�s enactment allowed unilateralExecutive authority in that regard. The Court�s rejectionof the Landgraf analysis, however, removes the possibilityof that being the basis for the invitation.

The Court instead reaches its conclusion about theExecutive�s role by reliance on the general constitutionalprinciple that the Executive has a � � �vast share of respon-sibility for the conduct of our foreign relations.� � � Ante, at24 (quoting American Ins. Assn. v. Garamendi, 539 U. S.396, 414 (2003)). This prospective constitutional conclu-sion, which the Court offers almost as an aside, has fun-damental implications for the future of the statute andraises serious separation-of-powers concerns.

The question the Court seems inclined to resolve�canthe foreign affairs power of the Executive supersede astatutory scheme set forth by Congress�is simply notpresented by the facts of this case. We would confront thequestion only if the case involved postenactment conductand if the Executive had filed a suggestion of immunity,which, by its insistence, superceded the statute�s directive.Those circumstances would present a difficult question.Compare U. S. Const., Art. II, §2, with Art. I, §1; id., §8,cls. 3, 9�11, 18; Art. III, §1; id., §2, cl. 1. See also SeeH. R. Rep., at 12 (setting out the constitutional authorityon which Congress relied to enact the FSIA). See gener-ally Internationl Bancorp, LLC v. Societe Des Bains DeMer Et Du Cercle Des Etrangers, 329 F. 3d 359, 367�368(CA4 2003) (noting the complicated intersection where the



Executive�s and the Legislature�s foreign affairs responsi-bilities overlap, in a case involving foreign trade). Theseparation-of-powers principles at stake also implicatejudicial independence, which is compromised by caseby case, selective determinations of jurisdiction by theExecutive.

The Court makes a serious mistake, in my view, toaddress the question when it is not presented. It magni-fies this error by proceeding with so little explanation,particularly in light of the strong arguments against itsconclusion. The Solicitor General, on behalf of the Execu-tive, agrees that the statute �presents the sole basis forcivil litigants to obtain jurisdiction over a foreign state inUnited States courts.� Brief for United States as AmicusCuriae 1. This understanding is supported by the lack oftextual support for the contrary position in the Act and bythe majority�s own assessment of the Act�s purposes.

The Court�s abrupt announcement that the FSIA maywell be subject to Executive override undermines the Act�scentral purpose and structure. As the Court acknowl-edges, before the Act, �immunity determinations [had beenthrown] into some disarray, as �foreign nations oftenplaced diplomatic pressure on the State Department,� andpolitical considerations sometimes led the Department tofile �suggestions of immunity in cases where immunitywould not have been available under the restrictive the-ory.� � Ante, at 12 (quoting Verlinden, 461 U. S., at 487).See also supra, at 2�3. Congress intended the FSIA toreplace this old and unsatisfactory methodology of Execu-tive decisionmaking. Ibid. The President endorsed theobjective in full, recommending the bill upon its introduc-tion in Congress, H. R. Rep., at 6, and signing the bill intolaw upon its presentment. The majority�s surprisingconstitutional conclusion suggests that the FSIA accom-plished none of these aims. The Court states that thestatute�s directives may well be short-circuited by the sole

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directive of the Executive.The Court adds a disclaimer that it �express[es] no

opinion on the question whether such deference should begranted [to the Executive] in cases covered by the FSIA.�Ante, at 24. The disclaimer, however, is inadequate toremedy the harm done by the invitation, for it is belied bythe Court�s own terms: Executive statements �suggestingthat courts decline to exercise jurisdiction in particularcases implicating foreign sovereign immunity . . . mightwell be entitled to deference as the considered judgment ofthe Executive on a particular question of foreign policy.�Ante, at 23�24 (citing as an example a case in which Ex-ecutive foreign policy superceded state law). Taking whatthe Court says at face value, the Court does express anopinion on the question: Its opinion is that the Executivestatement may well be entitled to deference, and so maywell supercede federal law that gives courts jurisdiction.

If, as it seems, the Court seeks to free the Executivefrom the dictates of enacted law because it fears that to dootherwise would consign some litigants to an unfair retro-active application of the law, it adds illogic to the illogic ofits own creation. Only application of our traditionalanalysis guards properly against unfair retroactive effect,�ensur[ing] that Congress itself has determined that thebenefits of retroactivity outweigh the potential for disrup-tion or unfairness.� Landgraf, 511 U. S., at 268.

Where postenactment conduct is at stake, the majority�sapproach promises unfortunate disruption. It promises toreintroduce Executive intervention in foreign sovereignimmunity determinations to an even greater degree thanexisted before the FSIA�s enactment. Before the Act,foreign nations only tended to need the Executive�s protec-tion from the courts� jurisdiction in instances involvingprivate acts. The Tate Letter ensured their public actswould remain immune from suit, even without Executiveintervention. Now, there is a potential for Executive



intervention in a much larger universe of claims. TheFSIA has no public act/private act distinction with respectto certain categories of conduct, such as expropriations.Foreign nations now have incentive to seek Executiveoverride of the Act�s jurisdictional rules for both publicand private acts in those categories of cases.

With the FSIA, Congress tried to settle foreign sover-eigns� prospective expectations for being subject to suit inAmerican courts and to ensure fair and evenhandedtreatment to our citizens who have claims against foreignsovereigns. See supra, at 2�3. This was in keeping withstrengthening the Executive�s ability to secure negotiatedagreements with foreign nations against whom our citi-zens may have claims. Over time, agreements of this sorthave been an important tool for the Executive. See, e.g.,Agreement Relating to the Agreement of Oct. 24, 2000,Concerning the Austrian Fund �Reconciliation, Peace andCooperation,� Jan. 23, 2001, U. S.-Aus., 2001 WL 935261(settling claims with Austria); Claims of U. S. Nationals,Nov. 5, 1964, U. S.-Yugo., 16 U. S. T. 1, T. I. A. S. No. 5750(same with Yugoslavia); Settlement of Claims of U. S.Nationals, July 16, 1960, U. S.-Pol., 11 U. S. T. 1953, T. I.A. S. No. 4545 (same with Poland). Uncertain prospectiveapplication of our foreign sovereign immunity law mayweaken the Executive�s ability to secure such agreementsby compromising foreign sovereigns� ability to predict theliability they face in our courts and so to assess the ulti-mate costs and benefits of any agreement. See supra, at16 (citing Brief for United States as Amicus Curiae).

* * *The presumption against retroactivity has compre-

hended, and always has been intended to comprehend, thewide universe of cases that a court might confront. Thatincludes this one. The Court�s departure from precedentshould not be overlooked. It has disregarded our �widely

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held intuitions about how statutes ordinarily operate,�Landgraf, supra, at 272, and treated the principles dis-cussed in Landgraf as if they describe a limited and pre-cise rule that courts should apply only in particularizedcontexts. Our unanimous rejection of this approach inHughes Aircraft applies here as well:

�To the extent [the Court] contends that only statuteswith one of [Landgraf�s particularly stated] effects aresubject to our presumption against retroactivity, [it]simply misreads our opinion in Landgraf. The lan-guage upon which [it] relies does not purport to definethe outer limit of impermissible retroactivity. Rather,our opinion in Landgraf, like that of Justice Story,merely described that any such effect constituted asufficient, rather than a necessary, condition for in-voking the presumption against retroactivity.� 520U. S., at 947.

The Court�s approach further leads to the unprecedentedconclusion that Congress� Article I power might well beinsufficient to accomplish the central objective of theFSIA. The Court, in addition, injects great prospectiveuncertainty into our relations with foreign sovereigns.Application of our usual presumption against imposingretroactive effect would leave powerful precedent intactand avoid these difficulties.

With respect, I dissent.

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