Democratic National Committee v. The Russian Federation et al

Filing 64

MOTION for Leave to Serve Three Foreign Defendants Through the Secretary of State under 28 U.S.C. 1608(a)(4) . Document filed by Democratic National Committee. (Attachments: #1 Complaint - English, #2 Complaint - Russian, #3 ECF Instructions - Eng., #4 ECF Instructions - Russian, #5 FSIA English, #6 FSIA Russian, #7 GRU Summons English, #8 GRU Summons Russian, #9 Guccifer Summons English, #10 Guccifer Summons Russian, #11 Koetl Practices English, #12 Koetl Practices - Russian, #13 Notice of Suit Russian, #14 Notice of Suit, #15 Russian Fed. Summons English, #16 Russian Fed. Summons Russian, #17 Translation Certificate, #18 Text of Proposed Order Proposed Order)(Sellers, Joseph)

PL 94–583 (HR 11315), PL 94–583, October 21, 1976, 90 Stat 2891

PL 94–583, October 21, 1976, 90 Stat 2891
UNITED STATES PUBLIC LAWS
94th Congress - Second Session
Convening January 19, 1976
DATA SUPPLIED BY THE U.S. DEPARTMENT OF JUSTICE. (SEE SCOPE)
Additions and Deletions are not identified in this document.
PL 94–583 (HR 11315)
October 21, 1976
An Act to define the jurisdiction of United States courts in suits against foreign states, the circumstances in which
foreign states are immune from suit and in which execution may not be levied on their property, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress
assembled, That this Act may be cited as the “Foreign Sovereign Immunities Act of 1976”. // 28 USC 1 note. //
Sec. 2. (a) That chapter 85 of title 28, United States Code, is amended by inserting immediately before section 1331
the following new section:
“Section 1330.
// 28 USC 1330. // Actions against foreign states
“(a) The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil
action against a foreign state as defined 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.
“(b) Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have
jurisdiction under subsection (a) where service has been made under section 1608 of this title.
“(c) For purposes of subsection (b), an appearance by a foreign state does not confer personal jurisdiction with respect
to any claim for relief not arising out of any transaction or occurrence enumerated in sections 1605—1607 of this title.”.
(b) By inserting in the chapter analysis of that chapter before—,
“1331. Federal question; amount in controversy; costs.”
the following new item:
“1330. Action against foreign states.”.
Sec. 3. That section 1332 of title 28, United States Code, is amended by striking subsections (a) (2) and (3) and
substituting in their place the following:
“(2) citizens of a State and citizens or subjects of a foreign state;
“(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
“(4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a Stateor of different States.”.
SEC. 4. (a) That title 28, United States Code, is amended by inserting after chapter 95 the following new chapter:

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

1

PL 94–583 (HR 11315), PL 94–583, October 21, 1976, 90 Stat 2891

” Chapter 97.—JURISDICTION IMMUNITIES OF FOREIGN STATES
“Sec.
“1602. Findings and declaration of purpose.
“1603. Definitions.
“1604. Immunity of a foreign state from jurisdiction.
“1605. General exceptions to the jurisdictional immunity of a foreign state.
“1606. Extent of liability.
1607. Counterclaims.
“1608. Service; time to answer default.
“1609. Immunity from attachment and execution of property of a foreign state.
“1610. Exceptions to the immunity from attachment or execution.
“1611. Certain types of property immune from execution.
” Section 1602. // 28 USC 1602. // Findings and declaration of purpose
” The Congress finds that the determination by United States courts of the claims of foreign states to immunity from
the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states
and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign
courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the
satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to
immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles
set forth in this chapter.
” Section 1603. // 28 USC 1603. // Definitions
“For purposes of this chapter—,
“(a) A ‘foreign state’, except as used in section 1608 of this title, includes a political subdivision of a foreign state or an
agency or instrumentality of a foreign state as defined in subsection (b).
“(b) An ‘agency or instrumentality of a foreign state’ means an entity—,
“(1) which is a spearate legal person, corporate or othewise, and
“(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other
ownership interest is owned by a foreign state or political subdivision thereof, and
“(3) which is neither a citizen of a State of the United States as defined in section 1332 (c) and (d) of this title, nor
created under the laws of any third country.
“(c) The ‘ United States' includes all territory and waters, continental or insular, subject to the jurisdiction of the United
States.
“(d) A ‘commercial activity’ means either a regular course of commercial conduct or a particular commercial transaction
or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct
or particular transaction or act, rather than by reference to its purpose.
“(e) A ‘commercial activity carried on in the United States by a foreign state’ means commercial activity carried on by
such state and having substantial contract with the United States.
” Section 1604.
// 28 USC 1604. // Immunity of a foreign state from jurisdiction
” 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.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

2

PL 94–583 (HR 11315), PL 94–583, October 21, 1976, 90 Stat 2891

” Section 1605.
// 28 USC 1605. // General exceptions to the jurisdictional immunity of a foreign state
“(a) Foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—,
“(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any
withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver;
“(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or
upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere;
or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state
elsewhere and that act causes a direct effect in the United States;
“(3) in which rights in property taken in violation of international law are in issue and that property or any property
exchanged for such property is present in the United States in connection with a commercial activity carried on in the
United States by the foreign state; or that property or any property exchanged for such property is owned or operated
by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial
activity in the United States;
“(4) in which rights in property in the United States acquired by succession or gift or rights in immovable property
situated in the United States are in issue; or
“(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state
for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious
act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of
his office or employment; except this paragraph shall not apply to—,
“(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function
regardless of whether the discretion be abused, or
“(B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights.
“(b) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which a
suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state, which maritime lien
is based upon a commercial activity of the foreign state: Provided, That—,
“(1) notice of the suit is given by delivery of a copy of the summons and of the complaint to the person, or his agent,
having possession of the vessel or cargo against which the maritime lien is asserted; but such notice shall not be deemed
to have been delivered, nor may it thereafter be delivered, if the vessel or cargo is arrested pursuant to process obtained
on behalf of the party bringing the suit—unless the party was unaware that the vessel or cargo of a foreign state was
involved, in which event the service of process of arrest shall be deemed to constitute valid delivery of such notice; and
“(2) notice to the foreign state of the commencement of suit as provided in section 1608 of this title is initiated within
ten days either of the delivery of notice as provided in subsection (b) (1) of this section or, in the case of a party who
was unaware that the vessel or cargo of a foreign state was involved, of the date such party determined the existence
of the foreign state's interest.
Whenever notice is delivered under subsection (b) (1) of this section, the maritime lien shall thereafter be deemed to be an
in personam claim against the foreign state which at that time owns the vessel or cargo involved: Provided, That a court
may not award judgment against the foreign state in an amount greater than the value of the vessel or cargo upon which
the maritime lien arose, such value to be determined as of the time notice is served under subsection (b) (1) of this section.
” Section 1606.
// 28 USC 1606. // Extent of liability
” As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607
of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under
like circumstances; but a foreign state except for an agency or instrumentality thereof shall not be liable for punitive
damages; if, however, in any case wherein death was caused, the law of the place where the action or omission occured
© 2018 Thomson Reuters. No claim to original U.S. Government Works.

3

PL 94–583 (HR 11315), PL 94–583, October 21, 1976, 90 Stat 2891

provides, or has been construed to provide, for damages only punitive in nature, the foreign state shall be liable for
actual or compensatory damages measured by the pecuniary injuries resulting from such death which were incurred by
the persons for whose benefit the action was brought.
” Section 1607.
// 28 USC 1607. // Counterclaims
“In any action brought by a foreign state, or in which a foreign state intervenes, in a court of the United States or of a
State, the foreign state shall not be accorded immunity with respect to any counterclaim—,
“(a) for which a foreign state would not be entitled to immunity under section 1605 of this chapter had such claim been
brought in a separate action against the foreign state; or
“(b) arising out of the transaction or occurrence that is the subject matter of the claim of the foreign state; or
“(c) to the extent that the counterclaim does not seek relief exceeding in amount or differing in kind from that sought
by the foreign state.
” Section 1608.
// 28 USC 1608. // Service; time to answer; default
“(a) Service in the courts of the United States and of the States shall be made upon a foreign state or political subdivision
of a foreign state:
“(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service
between the plaintiff and the foreign state or political subdivision; or
“(2) if no special arrangement for exists, by delivery of a copy of the summons and complaint in accordance with an
applicable international convention on service of judicial documents; or
“(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the summons and complaint and a
notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail
requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign
affairs of the foreign state concerned, or
“(4) if service cannot be made within 30 days under paragraph (3), by sending two copies of the summons and complaint
and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of
mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in
Washington, District of Columbia, to the attention of the Director of Special Consular Services—and the Secretary
shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the
court a certified copy of the diplomatic note indicating when the papers were transmitted.
As uded in this subsection, a ‘notice of suit’ shall means a notice addressed to a foreign state and in a form prescribed
by the Secretary of State by regulation.
“(b) Service in the courts of the United States and of the States shall be made upon an agency or instrumentality of
a foreign state:
“(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service
between the plaintiff and the agency or instrumentality; or
“(2) if no special arrangement exists, by delivery of a copy of the summons and complaint either to an officer, a
managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in
the United States; or in accordance with an applicable international convention on service of judicial documents; or
“(3) if service cannot be made under paragraphs (1) or (2), and if reasonably calculated to give actual notice, by delivery
of a copy of the summons and complaint, together with a translation of each into the official language of the foreign
state—,
“(A) as directed by an authority of the foreign state or political subdivision in response to a letter rogatory or request
or
“(B) by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the
agency or instrumentality to be served, or
© 2018 Thomson Reuters. No claim to original U.S. Government Works.

4

PL 94–583 (HR 11315), PL 94–583, October 21, 1976, 90 Stat 2891

“(C) as directed by order of the cuort consistent with the law of the place where service is to be made.
“(c) Service shall be deemed to have been made—,
“(1) in the case of service under subsection (a) (4), as of the date of transmittal indicated in the certified copy of the
diplomatic note; and
“(2) in any other case under this section, as of the date of receipt indicated in the certification, signed and returned
postal receipt, or other proof of service applicable to the method of service employed.
“(d) In any action brought in a court of the United States or of a State, a foreign state, a political subdivision thereof,
or an agency or instrumentality of a foreign state shall serve an answer or other responsive pleading to the complaint
within sixty days after service has been made under this section.
“(e) No judgment by default shall be entered by a court of the United States or of a State against a foreign state, a
political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim
or right to relief by evidence satisfactory ot the court. A copy of any such default judgment shall be sent to the foreign
state or political subdivision in the manner prescribed for service in this section.
” Section 1609.
// 28 USC 1609. // Immunity from attachment and execution of property of a foreign state
” Subject to existing international agreements to which the United States is a party at the time of enactment of this
Act the property in the United States of a foreign state shall be immune from attachment arrest and execution except
as provided in sections 1610 and 1611 of this chapter.
” Section 1610.
// 28 USC 1610. // Exceptions to the immunity from attachment or execution
“(a) 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 form attachment in aid of execution, or from execution,
upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if—,
“(1) the foreign state has waived its immunity from attachment in aid of execution or from execution either explicitly
or by implication, notwithstanding any withdrawal of the waiver the foreign state may purport to effect except in
accordance with the terms of the waiver, or
“(2) the property is or was used for the commercial activity upon which the claim is based, or
“(3) the execution relates to a judgment establishing rights in property which has been taken in violation of
international law or which has been exchanged for property taken in violation of international law, or
“(4) the execution relates to a judgment establishing rights in property—,
“(A) which is axquired by succession or gift, or
“(B) which is immovable and situated in the United States: Provided, That such property is not used for purposes of
maintaining a diplomatic or consular mission or the residence of the Chief of such mission, or
“(5) the property consists of any contractual obligation or any proceeds from such a contractual obligation to
indemnify or hold harmless the foreign state or its employees under a policy of automobile or other liability or casualty
insurance covering the claim which merged into the judgment.
“(b) In addition to subsection (a), any property in the United States of an agency or instrumentality of a foreign state
engaged in 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 or of a State after the effective date of this Act, if—,
“(1) the agency or instrumentality had waived its immumity from attachment in aid of execution or from execution
either explicitly or implicitly, notwithstanding any withdrawal of the waiver the agency or instrumentality may purport
to effect except in accordance with the terms of the waiver, or
“(2) the judgment relates to a claim for which the agency or instrumentality is not immune by virtue of section 1605
(a) (2), (3), or (5), or 1605 (b) of this chapter, regardless of whether the property is or was used for the activity upon
which the claim is based.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

5

PL 94–583 (HR 11315), PL 94–583, October 21, 1976, 90 Stat 2891

“(c) No attachment or execution referred to in subsections (a) and (b) of this section shall be permitted until the court has
ordered such attachment and execution after having determined that a reasonable period of time has elapsed following
the entry of judgment and the giving of any notice required under section 1608 (e) of this chapter.
“(d) The property 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 prior to the entry of judgment in any action brought in a court of
the United States or of a State, or prior to the elapse of the period of time provided in subsection (c) of this section, if—,
“(1) the foreign state has explicitly waived its imunnity from attachment prior to judgment, notwithstanding any
withdrawal of the waiver the foreign state may purport to effect except in accordance with the terms of the waiver, and
“(2) the purpose of the attachment is to secure satisfaction of a judgment that has been or may ultimately be entered
against the foreign state, and not to obtain jurisdiction.
” Section 1611.
// 28 USC 1611. // Certain types of property immune from execution
“(a) Notwithstanding the provisions of section 1610 of this chapter, the property of those organizations designated
by the President as being entitled to enjoy the privileges, exemptions, and immunities provided by the International
Organizations Immunities Act // 22 USC 288 note. // shall not be subject to attachment or any other judicial process
impeding the disbursement of funds to, or on the order of, a foreign state as the result of an action brought in the courts
of the United States or of the States.
“(b) Notwithstanding the provisions of section 1610 of this chapter, the property of a foreign state shall be immune
from attachment and from execution, if—,
“(1) the property is that of a foreign central bank or monetary authority held for its own account, unless such bank or
authority, or its parent foreign government, has explicitly waived its immunity from attachment in aid of execution, or
from execution, notwithstanding any withdrawal of the waiver which the bank, authority or government may purport
to effect except in accordance with the terms of the waiver; or
“(2) the property is, or is intended to be, used in connection with a military activity and
“(A) is of a military character, or
“(B) is under the control of a military authority or defense agency.”
(b) That the analysis of ” PART IV.— JURISDICTION AND VENUE” of title 28, United States Code, is amended
by inserting after—,
“95. Customs Court.”, the following new item:
“97. Jurisdictional Immunities of Foreign States.”.
SEC. 5. That section 1391 of title 28, United States Code, is amended by adding at the end thereof the following new
subsection:
“(f) A civil action against a foreign state as defined in section 1603 (a) of this title may be brought—,
“(1) in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or
a substantial part of property that is the subject of the action is situated;
“(2) in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under
section 1605 (b) of this title;
“(3) in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the
action is brought against an agency or instrumentality of a foreign state as defined in section 1603 (b) of this title; or
“(4) in the United States District Court for the District of Columbia if the action is brought against a foreign state
or political subdivision thereof.”.
SEC. 6. That section 1441 of title 28, United States Code, is amended by adding at the end thereof the following new
subsection:
“(d) Any civil action brought in a State court against a foreign state as defined in section 1603 (a) of this title may be
removed by the foreign state to the district court of the United States for the district and division embracing the place

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

6

PL 94–583 (HR 11315), PL 94–583, October 21, 1976, 90 Stat 2891

where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based
upon this subsection, the time limitations of section 1446 (b) // 28 USC 1446. // of this chapter may be enlarged at any
time for cause shown.”.
Sec. 7. // 28 USC 1602 note. // If any provision of this Act or the application thereof to any foreign state is held invalid,
the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid
provision or application, and to this end the provisions of this Act are severable.
Sec. 8. // 28 USC 1602 note. // This Act shall take effect ninety days after the date of its enactment.
Approved October 21, 1976.
LEGISLATIVE HISTORY:
HOUSE Report No. 94—1487 (Comm. on the Judiciary).
SENATE REPORT No. 94—1310 accompanying S. 3553 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 122 (1976): Sept. 29, considered and passed House. Oct. 1, considered and passed
Senate.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 12, No. 43: Oct. 22, Presidential Statement.
PL 94–583, 1976 HR 11315
End of Document

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

7