Establishing Subject Matter Jurisdiction Under the FSIA

AuthorErnesto Sanchez
Subject matter jurisdiction refers to a court’s authority to hear a particular case.1 e FSIA is a
jurisdictional statute, meaning that, for the most part, it enumerates the conditions a plainti
must meet in order to sue a defendant meeting the statute’s denition of a “foreign state,” as
opposed to dening what conduct by such a defendant is actionable.
e district courts shall have original jurisdiction without regard to amount in contro-
versy of any nonjury civil action against a foreign state as dened in section 1603(a) of
this title as to any claim for relief in personam with respect to which the foreign state is not
entitled to immunity either under sections 1605-1607 of this title or under any applicable
international agreement.2
Subject to existing international agreements to which the United States is a party at the
time of enactment of this Act a foreign state shall be immune from the jurisdiction of the
courts of the United States and of the States except as provided in sections 1605 to 1607
of this chapter.
Six years after conrming that the U.S. Constitution authorized the FSIA’s regulation of juris-
diction with respect to legal actions against foreign states and related entities,3 the Supreme
1. R § , cmt. c. (“e term is also often used in judicial decisions to describe other limitations on
governmental authority, including those involving the reach of United States law, addressed in this Restatement as juris-
diction to prescribe.”); see also Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (referring to “court’s
authority to hear a given type of case”) (quoting United States v. Morton, 467 U.S. 822, 828 (1984)).
3. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 490-92 (1983) (FSIA authorized by Article III of the
Constitution, which “provides that the judicial power extends to controversies between ‘a State, or the Citizens thereof,
and foreign States’ and covers actions by citizens of states” (i.e., clause for diversity jurisdiction) and encompasses “all
Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority . . .”) (emphasis added).
ForSovImmunAct_book.indb 99 4/11/13 3:31 PM
T F S I  A D 
Court summarized the interplay between immunity and subject matter jurisdiction under the
Sections 1604 and 1330(a) work in tandem: § 1604 bars federal and state courts from
exercising jurisdiction when a foreign state is entitled to immunity, and § 1330(a) confers
jurisdiction on district courts to hear suits brought by United States citizens and aliens
when a foreign state is not entitled to immunity.4
To overcome presumptive immunity and establish subject matter jurisdiction under the FSIA,
then, a potential plainti must keep the following principles in mind:
1) A party cannot pursue a civil legal action against a “foreign state” unless either of the fol-
lowing two conditions applies:
A) e wrong alleged falls under a treaty the United States has ratied.
B) e wrong alleged falls within one of the statute’s exceptions to immunity.
2) A party can pursue certain bankruptcy actions against a “foreign state” under the FSIA.5
A court can dismiss a case for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of
the U.S. Federal Rules of Civil Procedure sua sponte (i.e., without a request from parties)6 or
upon a defendant’s motion.7 ese dismissals do not constitute adjudications on the merits of a
plainti ’s complaint.8
(1) Burdens Of Proof Regarding Subject Matter Jurisdiction
Once a defendant establishes that it is a “foreign state” under the FSIA,9 a plainti bears the
burden of production to make an initial showing that an exception to immunity applies. If the
plainti carries this initial burden, the defendant bears the ultimate burden of rebutting the
4. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989).
5. See infra Pt. III, Ch. 19.
6. See Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1128 (9th Cir. 2010) (district court did not err, in action
seeking to execute a judgment against Iran arising out of the terrorist bombing of a Marine Corps barracks in Beirut,
Lebanon, by raising sua sponte issue of whether Iran was entitled to immunity as a foreign sovereign); Gang Chen v.
China Central Television, 320 Fed. Appx. 71, 74 (2d Cir. 2009) (arming sua sponte dismissal).
7. See Republic of Austria v. Altmann, 541 U.S. 677, 691 (2004) (subject matter jurisdiction exists under FSIA only
if one of the exceptions to sovereign immunity applies); Kirkham v. Societe Air France, 429 F.3d 288, 291 (D.C. Cir.
2005) (“[P]arties seeking FSIA immunity do so through Rule 12(b)(1) motions to dismiss for lack of subject matter
jurisdiction.”); see also Fed.R. Civ.P. 12(h)(3) (if a court “determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action”).
8. F . R. C . P. (b).
9. See supra Pt. II, Ch. 6, § 6.7; see also Verlinden, 461 493 n.20 (parties other than foreign sovereign defen-
dants ordinarily lack standing to raise FSIA defense, but when court’s jurisdiction rests on presence of foreign sovereign
defendant, court may address issue independently).
ForSovImmunAct_book.indb 100 4/11/13 3:31 PM

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