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Jenny Rubin, et al. v. Islamic Republic of Iran, et al.

Paid petition · United States Court of Appeals for the Seventh Circuit, No. 14-1935 · judgment July 19, 2016

Decided · February 21, 2018
At-filing estimate: 2% cert probability
The Solicitor General's brief was filed May 23, 2017

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Questions presented

Granted limited to question 1 presented by the petition.

  1. Under the original execution immunity provisions of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602, et seq. (the "FSIA"), plaintiffs holding terrorism judgments against designated state sponsors of terrorism "faced practical and legal difficulties at the enforcement stage." Bank Markazi v. Peterson, 136 S. Ct. 1310, 1317-18 (2016). "[O]nly foreign-state property located in the United States and 'used for a commercial activity' was available for the satisfaction of judgments." Id. at 1318. In 2008, Congress enacted 28 U.S.C. § 1610(g) to expand the availability of assets for postjudgment execution against the property of foreign state sponsors of terrorism, their agencies and instrumentalities. Id. at 1318 n.2. The Seventh Circuit held below that section 1610(g) merely amends the existing attachment immunity provisions to enable terrorism judgment creditors to enforce their judgments against the foreign governments' instrumentalities that have been established as separate juridical entities. This holding conflicts with the Ninth Circuit's decision in Bennett v. Islamic Republic of Iran, 825 F.3d 950 (9th Cir. 2016), which held that section 1610(g) provides a freestanding attachment immunity exception, which in addition to enabling veil piercing, allows terrorism victims to attach and execute upon any assets of foreign state sponsors of terrorism, their agencies, or instrumentalities regardless of whether the assets are connected to commercial activity in the United States.(1) The first question presented for review is: Whether 28 U.S.C. § 1610(g) provides a freestanding attachment immunity exception that allows terror victim judgment creditors to attach and execute upon assets of foreign state sponsors of terrorism regardless of whether the assets are otherwise subject to execution under section 1610.

  2. Section 1610(a) is another execution immunity provision of the FSIA. It enables execution upon "property in the United States of a foreign state ... used for a commercial activity in the United States" under certain specified conditions enumerated in the statute. The statutory text refers to the commercial use without respect to any particular actor. The second question presented for review is: Whether the commercial use exception to execution immunity, codified at 28 U.S.C. § 1610(a), applies to a foreign sovereign's property located in the United States only when the property is used by the foreign state itself.

  3. Iran has filed a petition for a writ of certiorari challenging the Ninth Circuit's Bennett decision based upon the conflict with the Seventh Circuit's decision below as to the construction of section 1610(g). See Supreme Court Case No. 16-334.

Counsel of record

For petitioner
Asher Perlin

For respondent
Susan Marie Benton
Butler Rubin Saltarelli & Boyd, LLP

Case

Subject area
Economic Activity (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 3 conferences

Amicus briefs
1 cert-stage · 4 merits
(3 supporting pet./neither, 1 respondent)

Order
Miscellaneous order, November 21, 2017

Argument & decision

Argued December 4, 2017 — Asher Perlin · David A. Strauss. Listen and read along · the Court’s audio

Decided February 21, 2018. Opinion by Sotomayor.

Proceedings

  1. Mar 26 2018
    JUDGMENT ISSUED.
  2. Feb 21 2018
    Adjudged to be AFFIRMED. Sotomayor, J., delivered the opinion of the Court, in which all other Members joined, except Kagan, J., who took no part in the consideration or decision of the case.
  3. Dec 04 2017
    Argued. For petitioners: Asher Perlin, Hollywood, Fla. For respondents: David A. Strauss, Chicago, Ill; and Zachary D. Tripp, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.)
  4. Nov 22 2017
    Reply of petitioners Jenny Rubin, et al. filed. (Distributed)
  5. Nov 21 2017
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. Justice Kagan took no part in the consideration or decision of this motion.
  6. Oct 30 2017
    Brief amicus curiae of United States filed. (Distributed)
  7. Oct 30 2017
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  8. Oct 23 2017
    Brief of respondent Islamic Republic of Iran filed. (Distributed)
  9. Oct 23 2017
    Brief of respondent University of Chicago filed. (Distributed)
  10. Oct 20 2017
    CIRCULATED
  11. Oct 10 2017
    Letter of respondent Field Museum of Natural History advising the Court that it has no interest in the outcome of proceedings in this Court and waiving the filing of a brief on the merits.
  12. Oct 06 2017
    SET FOR ARGUMENT ON Monday, December 4, 2017.
  13. Sep 25 2017
    Motion to dispense with printing the joint appendix filed by petitioners GRANTED. Justice Kagan took no part in the consideration or decision of this motion.
  14. Sep 13 2017
    Blanket Consent filed by Petitioner, Jenny Rubin, et al. on 09/13/2017
  15. Sep 08 2017
    Brief amici curiae of Foundation for Defense of Democracies filed.
  16. Sep 08 2017
    Brief amici curiae of Victims of Iranian Terrorism filed.
  17. Sep 08 2017
    Brief amici curiae of Former U.S. Counterterrorism Officials, et al. filed.
  18. Sep 05 2017
    Blanket Consent filed by Respondent, University of Chicago on 09/12/2017
  19. Sep 01 2017
    Blanket Consent filed by Respondent Islamic Republic of Iran.
  20. Sep 01 2017
    Blanket Consent filed by Petitioners, Jenny Rubin, et al.
  21. Sep 01 2017
    Blanket Consent filed by Respondent, Field Museum of Natural History on 09/13/2017
  22. Sep 01 2017
    Brief of petitioner Jenny Rubin, et al. filed.
  23. Aug 23 2017
    Motion to dispense with printing the joint appendix filed by petitioner Jenny Rubin, et al.
  24. Jul 31 2017
    The time to file the joint appendix and petitioners' brief on the merits is extended to and including September 1, 2017.
  25. Jul 31 2017
    The time to file respondents' briefs on the merits is extended to and including October 23, 2017.
  26. Jun 27 2017
    Petition GRANTED limited to Question 1 presented by the petition. Justice Kagan took no part in the consideration or decision of this petition.
  27. Jun 26 2017
    DISTRIBUTED for Conference of June 26, 2017.
  28. Jun 06 2017
    Supplemental brief of petitioners Jenny Rubin, et al. filed. (Distributed)
  29. Jun 06 2017
    DISTRIBUTED for Conference of June 22, 2017.
  30. May 23 2017
    Brief amicus curiae of United States filed.
  31. Jan 09 2017
    The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States. Justice Kagan took no part in the consideration or decision of this petition.
  32. Dec 09 2016
    Letter of December 6, 2016, from counsel for petitioners received. (Distributed)
  33. Dec 07 2016
    DISTRIBUTED for Conference of January 6, 2017.
  34. Dec 06 2016
    Reply of petitioners Jenny Rubin, et al. filed. (Distributed)
  35. Nov 23 2016
    Brief of respondent Islamic Republic of Iran filed.
  36. Nov 23 2016
    Brief of respondent The University of Chicago in opposition filed.
  37. Nov 22 2016
    Brief of respondent Field Museum of Natural History in opposition filed.
  38. Nov 16 2016
    Order extending time to file response to petition to and including November 25, 2016, for all respondents.
  39. Oct 17 2016
    Petition for a writ of certiorari filed. (Response due November 18, 2016)