REPUBLIC OF AUSTRIA et al. v. ALTMANN

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677 OCTOBER TERM, 2003
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REPUBLIC OF AUSTRIA et al. v. ALTMANN
certiorari to the united states court of appeals for
the ninth circuit
No. 03–13. Argued February 25, 2004—Decided June 7, 2004
Upon evidence that certain of her uncle’s valuable art works had either
been seized by the Nazis or expropriated by Austria after World War
II, respondent filed this action in Federal District Court to recover six
of the paintings from petitioners, Austria and its instrumentality, the
Austrian Gallery. She asserts jurisdiction under § 2 of the Foreign Sov-
ereign Immunities Act of 1976 (FSIA or Act), 28 U. S. C. § 1330(a), which
authorizes federal civil suits against foreign states “as to any claim for
relief in personam with respect to which the foreign state is not entitled
to immunity” under another section of the FSIA or under “any applica-
ble international agreement.” She further asserts that petitioners are
not entitled to immunity under the FSIA’s “expropriation exception,”
§ 1605(a)(3), which expressly exempts from immunity certain cases in-
volving “rights in property taken in violation of international law.”
Petitioners moved to dismiss based on, inter alia, the two-part claim
that (1) as of 1948, when much of their alleged wrongdoing took place,
they would have enjoyed absolute sovereign immunity from suit in
United States courts, and that (2) nothing in the FSIA retroactively
divests them of that immunity. Rejecting this argument, the District
Court concluded, among other things, that the FSIA applies retroac-
tively to pre-1976 actions. The Ninth Circuit affirmed.
Held: The FSIA applies to conduct, like petitioners’ alleged wrongdoing,
that occurred prior to the Act’s 1976 enactment and even prior to the
United States’ 1952 adoption of the so-called “restrictive theory” of sov-
ereign immunity. Pp. 688–702.
(a) This Court has long deferred to Executive Branch sovereign im-
munity decisions. Until 1952, Executive policy was to request immu-
nity in all actions against friendly sovereigns. In that year, the State
Department began to apply the “restrictive theory,” whereby immunity
is recognized with regard to a foreign state’s sovereign or public acts,
but not its private acts. Although this change had little impact on fed-
eral courts, which continued to abide by the Department’s immunity
suggestions, Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480,
487, the change threw immunity decisions into some disarray: Foreign
nations’ diplomatic pressure sometimes prompted the Department to file

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suggestions of immunity in cases in which immunity would not have
been available under the restrictive theory; and when foreign nations
failed to ask the Department for immunity, the courts had to determine
whether immunity existed, so responsibility for such determinations lay
with two different branches, ibid. To remedy these problems, the
FSIA codified the restrictive principle and transferred primary respon-
sibility for immunity determinations to the Judicial Branch. The Act
grants federal courts jurisdiction over civil actions against foreign
states and carves out the expropriation and other exceptions to its gen-
eral grant of immunity. In any such action, the district court’s subject-
matter jurisdiction depends on the applicability of one of those excep-
tions. Id., at 493–494. Pp. 688–691.
(b) This case is not controlled by Landgraf v. USI Film Products, 511
U. S. 244. In describing the general presumption against retroactive
application of a statute, the Court there declared, inter alia, that, if a
federal law enacted after the events in suit does not expressly prescribe
its own proper reach but does operate retroactively—i. e., would impair
rights a party possessed when he acted, increase his liability for past
conduct, or impose new duties with respect to transactions already com-
pleted—it does not govern absent clear congressional intent favoring
that result. Id., at 280. Though seemingly comprehensive, this in-
quiry does not provide a clear answer here. None of the three exam-
ples of retroactivity mentioned above fits the FSIA’s clarification of sov-
ereign immunity law. However, the preliminary conclusion that the
FSIA does not appear to “operate retroactively” within the meaning of
Landgraf ’s default rule creates some tension with the Court’s observa-
tion in Verlinden that the FSIA is not simply a jurisdictional statute,
but a codification of “the standards governing foreign sovereign immu-
nity as an aspect of substantive federal law.” 461 U. S., at 496–497
(emphasis added). And while the FSIA’s preamble suggests that it ap-
plies to preenactment conduct, that statement by itself falls short of the
requisite express prescription. Thus Landgraf ’s default rule does not
definitively resolve this case. While Landgraf ’s antiretroactivity pre-
sumption aims to avoid unnecessary post hoc changes to legal rules on
which private parties relied in shaping their primary conduct, however,
foreign sovereign immunity’s principal purpose is to give foreign states
and their instrumentalities some present protection from the inconven-
ience of suit, Dole Food Co. v. Patrickson, 538 U. S. 468, 479. In this
sui generis context, it is more appropriate, absent contraindications, to
defer to the most recent decision of the political branches on whether to
take jurisdiction, the FSIA, than to presume that decision inapplicable
merely because it postdates the conduct in question. Pp. 692–696.

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(c) Nothing in the FSIA or the circumstances surrounding its enact-
ment suggests that it should not be applied to petitioners’ 1948 actions.
Indeed, clear evidence that Congress intended it to apply to preenact-
ment conduct lies in its preamble’s statement that foreign states’ immu-
nity “[c]laims . . . should henceforth be decided by [American] courts
. . . in conformity with the principles set forth in this chapter,” § 1602
(emphasis added). Though perhaps not sufficient to satisfy Landgraf ’s
“express command” requirement, 511 U. S., at 280, this language is un-
ambiguous: Immunity “claims”—not actions protected by immunity, but
assertions of immunity to suits arising from those actions—are the rele-
vant conduct regulated by the Act and are “henceforth” to be decided
by the courts. Thus, Congress intended courts to resolve all such
claims “in conformity with [FSIA] principles” regardless of when the
underlying conduct occurred. The FSIA’s overall structure strongly
supports this conclusion: Many of its provisions unquestionably apply to
cases arising out of conduct that occurred before 1976, see, e. g., Dole
Food Co., supra, and its procedural provisions undoubtedly apply to all
pending cases. In this context, it would be anomalous to presume that
an isolated provision (such as the expropriation exception on which re-
spondent relies) is of purely prospective application absent any statu-
tory language to that effect. Finally, applying the FSIA to all pending
cases regardless of when the underlying conduct occurred is most con-
sistent with two of the Act’s principal purposes: clarifying the rules
judges should apply in resolving sovereign immunity claims and eliminat-
ing political participation in the resolution of such claims. Pp. 697–700.
(d) This holding is extremely narrow. The Court does not review the
lower courts’ determination that § 1605(a)(3) applies here, comment on
the application of the so-called “act of state” doctrine to petitioners’
alleged wrongdoing, prevent the State Department from filing state-
ments of interest suggesting that courts decline to exercise jurisdiction
in particular cases implicating foreign sovereign immunity, or express
an opinion on whether deference should be granted such filings in cases
covered by the FSIA. The issue here concerns only the interpretation
of the FSIA’s reach—a “pure question of statutory construction . . . well
within the province of the Judiciary.” INS v. Cardoza-Fonseca, 480
U. S. 421, 446, 448. Pp. 700–702.
317 F. 3d 954 and 327 F. 3d 1246, affirmed.
Stevens, J., delivered the opinion of the Court, in which O’Connor,
Scalia, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a
concurring opinion, post, p. 702. Breyer, J., filed a concurring opinion,
in which Souter, J., joined, post, p. 704. Kennedy, J., filed a dissenting
opinion, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 715.

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Scott P. Cooper argued the cause for petitioners. With
him on the briefs were Charles S. Sims and Jonathan E.
Rich.
Deputy Solicitor General Hungar argued the cause for
the United States as amicus curiae urging reversal. With
him on the brief were Solicitor General Olson, Assistant
Attorney General Keisler, Deputy Solicitor General Kneed-
ler, Jeffrey P. Minear, Mark B. Stern, Douglas Hallward-
Driemeier, William H. Taft IV, and Elizabeth M. Teel.
E. Randol Schoenberg argued the cause for respondent.
With him on the brief was Donald S. Burris.*
Justice Stevens delivered the opinion of the Court.
In 1998 an Austrian journalist, granted access to the Aus-
trian Gallery’s archives, discovered evidence that certain
valuable works in the Gallery’s collection had not been do-
nated by their rightful owners but had been seized by the
Nazis or expropriated by the Austrian Republic after World
War II. The journalist provided some of that evidence to
respondent, who in turn filed this action to recover posses-
sion of six Gustav Klimt paintings. Prior to the Nazi in-
vasion of Austria, the paintings had hung in the palatial
Vienna home of respondent’s uncle, Ferdinand Bloch-Bauer,
a Czechoslovakian Jew and patron of the arts. Respondent
claims ownership of the paintings under a will executed by
her uncle after he fled Austria in 1938. She alleges that the
*Briefs of amici curiae urging reversal were filed for Japan by Craig
A. Hoover, Jonathan S. Franklin, and Lorane F. Hebert; and for the
United Mexican States by Jonathan I. Blackman.
Briefs of amici curiae urging affirmance were filed for the Austrian
Jewish Community et al. by Charles G. Moerdler, James A. Shifren,
Thomas R. Kline, and Marc D. Stern; for Bet Tzedek Legal Services et al.
by Janie F. Schulman, Jeffrey P. Sinensky, and David J. Bederman; and
for Michael Berenbaum et al. by Edward McGlynn Gaffney, Jr., Arthur
Miller, and Melvyn Weiss.
Andreas F. Lowenfeld filed a brief for the Socie´ te´ Nationale des Che-
mins de Fer Franc¸ais as amicus curiae.

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Gallery obtained possession of the paintings through wrong-
ful conduct in the years during and after World War II.
The defendants (petitioners here)—the Republic of Aus-
tria and the Austrian Gallery (Gallery), an instrumentality
of the Republic—filed a motion to dismiss the complaint as-
serting, among other defenses, a claim of sovereign immu-
nity. The District Court denied the motion, 142 F. Supp. 2d
1187 (CD Cal. 2001), and the Court of Appeals affirmed, 317
F. 3d 954 (CA9 2002), as amended, 327 F. 3d 1246 (2003). We
granted certiorari limited to the question whether the For-
eign Sovereign Immunities Act of 1976 (FSIA or Act), 28
U. S. C. § 1602 et seq., which grants foreign states immunity
from the jurisdiction of federal and state courts but ex-
pressly exempts certain cases, including “case[s] . . . in which
rights in property taken in violation of international law are
in issue,” § 1605(a)(3), applies to claims that, like respond-
ent’s, are based on conduct that occurred before the Act’s
enactment, and even before the United States adopted the
so-called “restrictive theory” of sovereign immunity in 1952.
539 U. S. 987 (2003).
I
Because this case comes to us from the denial of a motion
to dismiss on the pleadings, we assume the truth of the fol-
lowing facts alleged in respondent’s complaint.
Born in Austria in 1916, respondent Maria V. Altmann es-
caped the country after it was annexed by Nazi Germany
in 1938. She settled in California in 1942 and became an
American citizen in 1945. She is a niece, and the sole sur-
viving named heir, of Ferdinand Bloch-Bauer, who died in
Zurich, Switzerland, on November 13, 1945.
Prior to 1938 Ferdinand, then a wealthy sugar magnate,
maintained his principal residence in Vienna, Austria, where
the six Klimt paintings and other valuable works of art were
housed. His wife, Adele, was the subject of two of the paint-
ings. She died in 1925, leaving a will in which she “ask[ed]”
her husband “after his death” to bequeath the paintings to

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the Gallery.1 App. 187a, ¶ 81. The attorney for her estate
advised the Gallery that Ferdinand intended to comply with
his wife’s request, but that he was not legally obligated to
do so because he, not Adele, owned the paintings. Ferdi-
nand never executed any document transferring ownership
of any of the paintings at issue to the Gallery. He remained
their sole legitimate owner until his death. His will be-
queathed his entire estate to respondent, another niece, and
a nephew.
On March 12, 1938, in what became known as the “Ansch-
luss,” the Nazis invaded and claimed to annex Austria. Fer-
dinand, who was Jewish and had supported efforts to resist
annexation, fled the country ahead of the Nazis, ultimately
settling in Zurich. In his absence, according to the com-
plaint, the Nazis “Aryanized” the sugar company he had di-
rected, took over his Vienna home, and divided up his art-
works, which included the Klimts at issue here, many other
valuable paintings, and a 400-piece porcelain collection. A
Nazi lawyer, Dr. Erich Fu¨ hrer, took possession of the six
Klimts. He sold two to the Gallery in 1941 2 and a third in
1943, kept one for himself, and sold another to the Museum
of the City of Vienna. The immediate fate of the sixth is
not known. 142 F. Supp. 2d, at 1193.
In 1946 Austria enacted a law declaring all transactions
motivated by Nazi ideology null and void. This did not re-
sult in the immediate return of looted artwork to exiled Aus-
trians, however, because a different provision of Austrian
1 Adele’s will mentions six Klimt paintings, Adele Bloch-Bauer I, Adele
Bloch-Bauer II, Apple Tree I, Beechwood, Houses in Unterach am Atter-
see, and Schloss Kammer am Attersee III. The last of these, Schloss
Kammer am Attersee III, is not at issue in this case because Ferdinand
donated it to the Gallery in 1936. The sixth painting in this case, Amalie
Zuckerkandl, is not mentioned in Adele’s will. For further details, see
142 F. Supp. 2d 1187, 1192–1193 (CD Cal. 2001).
2 More precisely, he traded Adele Bloch-Bauer I and Apple Tree I to the
Gallery for Schloss Kammer am Attersee III, which he then sold to a
third party.

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law proscribed export of “artworks . . . deemed to be impor-
tant to [the country’s] cultural heritage” and required anyone
wishing to export art to obtain the permission of the Aus-
trian Federal Monument Agency. App. 168a, ¶ 32. Seeking
to profit from this requirement, the Gallery and the Federal
Monument Agency allegedly adopted a practice of “forc[ing]
Jews to donate or trade valuable artworks to the [Gallery]
in exchange for export permits for other works.” Id., at
168a, ¶ 33.
The next year Robert Bentley, respondent’s brother and
fellow heir, retained a Viennese lawyer, Dr. Gustav Rinesch,
to locate and recover property stolen from Ferdinand during
the war. In January 1948 Dr. Rinesch wrote to the Gallery
requesting return of the three Klimts purchased from
Dr. Fu¨ hrer. A Gallery representative responded, assert-
ing—falsely, according to the complaint—that Adele had be-
queathed the paintings to the Gallery, and the Gallery had
merely permitted Ferdinand to retain them during his life-
time. Id., at 170a, ¶ 40.
Later the same year Dr. Rinesch enlisted the support of
Gallery officials to obtain export permits for many of Ferdi-
nand’s remaining works of art. In exchange, Dr. Rinesch,
purporting to represent respondent and her fellow heirs,
signed a document “acknowledg[ing] and accept[ing] Ferdi-
nand’s declaration that in the event of his death he wished to
follow the wishes of his deceased wife to donate” the Klimt
paintings to the Gallery. Id., at 177a, ¶ 56. In addition,
Dr. Rinesch assisted the Gallery in obtaining both the paint-
ing Dr. Fu¨ hrer had kept for himself and the one he had sold
to the Museum of the City of Vienna.3 At no time during
these transactions, however, did Dr. Rinesch have respond-
ent’s permission either “to negotiate on her behalf or to allow
3 The sixth painting, which disappeared from Ferdinand’s collection in
1938, apparently remained in private hands until 1988, when a private art
dealer donated it to the Gallery. Id., at 1193.

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the [Gallery] to obtain the Klimt paintings.” Id., at 178a,
¶ 61.
In 1998 a journalist examining the Gallery’s files discov-
ered documents revealing that at all relevant times Gallery
officials knew that neither Adele nor Ferdinand had, in fact,
donated the six Klimts to the Gallery. The journalist pub-
lished a series of articles reporting his findings, and specifi-
cally noting that Klimt’s first portrait of Adele, “which all the
[Gallery] publications represented as having been donated to
the museum in 1936,” had actually been received in 1941,
accompanied by a letter from Dr. Fu¨ hrer signed “ ‘Heil Hit-
ler.’ ” Id., at 181a, ¶ 67.
In response to these revelations, Austria enacted a new
restitution law under which individuals who had been co-
erced into donating artworks to state museums in exchange
for export permits could reclaim their property. Respond-
ent—who had believed, prior to the journalist’s investiga-
tion, that Adele and Ferdinand had “freely donated” the
Klimt paintings to the Gallery before the war—immediately
sought recovery of the paintings and other artworks under
the new law. Id., at 178a–179a, ¶ 61, 182a. A committee of
Austrian Government officials and art historians agreed to
return certain Klimt drawings and porcelain settings that
the family had donated in 1948. After what the complaint
terms a “sham” proceeding, however, the committee declined
to return the six paintings, concluding, based on an allegedly
purposeful misreading of Adele’s will, that her precatory re-
quest had created a binding legal obligation that required
her husband to donate the paintings to the Gallery on his
death. Id., at 185a.
Respondent then announced that she would file a lawsuit
in Austria to recover the paintings. Because Austrian court
costs are proportional to the value of the recovery sought
(and in this case would total several million dollars, an
amount far beyond respondent’s means), she requested a

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waiver. Id., at 189a. The court granted this request in
part but still would have required respondent to pay approx-
imately $350,000 to proceed. Ibid. When the Austrian
Government appealed even this partial waiver, respondent
voluntarily dismissed her suit and filed this action in the
United States District Court for the Central District of
California.
II
Respondent’s complaint advances eight causes of action
and alleges violations of Austrian, international, and Califor-
nia law.4 It asserts jurisdiction under § 2 of the FSIA,
which grants federal district courts jurisdiction over civil ac-
tions against foreign states “as to any claim for relief in per-
sonam with respect to which the foreign state is not entitled
to immunity” under either another provision of the FSIA
or “any applicable international agreement.” 28 U. S. C.
§ 1330(a). The complaint further asserts that petitioners are
not entitled to immunity under the FSIA because the Act’s
“expropriation exception,” § 1605(a)(3), expressly exempts
from immunity all cases involving “rights in property taken
in violation of international law,” provided the property has
a commercial connection to the United States or the agency
4 As the District Court described these claims:
“[Respondent’s] first cause of action is for declaratory relief pursuant to
28 U. S. C. § 2201; [she] seeks a declaration that the Klimt paintings should
be returned pursuant to the 1998 Austrian law. [Her] second cause of
action is for replevin, presumably under California law; [she] seeks return
of the paintings. [Her] third cause of action seeks rescission of any agree-
ments by the Austrian lawyer with the Gallery or the Federal Monument
Agency due to mistake, duress, and/or lack of authorization. [Her] fourth
cause of action seeks damages for expropriation and conversion, and her
fifth cause of action seeks damages for violation of international law.
[Her] sixth cause of action seeks imposition of a constructive trust, and
her seventh cause of action seeks restitution based on unjust enrichment.
Finally, [her] eighth cause of action seeks disgorgement of profits under
the California Unfair Business Practices law.” Id., at 1197.

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or instrumentality that owns the property is engaged in com-
mercial activity here.5
Petitioners filed a motion to dismiss raising several de-
fenses including a claim of sovereign immunity.6 Their
immunity argument proceeded in two steps. First, they
claimed that as of 1948, when much of their alleged wrong-
doing took place, they would have enjoyed absolute immu-
nity from suit in United States courts.7 Proceeding from
this premise, petitioners next contended that nothing in
the FSIA should be understood to divest them of that im-
munity retroactively.
The District Court rejected this argument, concluding
both that the FSIA applies retroactively to pre-1976 actions
and that the Act’s expropriation exception extends to re-
5 The provision reads:
“(a) A foreign state shall not be immune from the jurisdiction of courts of
the United States or of the States in any case—
. . . . .
“(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 instru-
mentality is engaged in a commercial activity in the United States.”
6 Petitioners claimed (1) “they are immune from suit under the doctrine
of sovereign immunity,” and the FSIA, 28 U. S. C. §§ 1602–1611, “does not
strip them of this immunity”; (2) the District Court “should decline to
exercise jurisdiction . . . under the doctrine of forum non conveniens”;
(3) respondent “fail[ed] to join indispensable parties under Fed. R. Civ.
P. 19”; and (4) venue in the Central District of California is improper. 142
F. Supp. 2d, at 1197.
7 As the District Court noted, id., at 1201, n. 16, respondent alleges that
petitioners’ wrongdoing continued well past 1948 in the form of conceal-
ment of the paintings’ true provenance and deliberate misinterpretation
of Adele’s will. Because we conclude that the FSIA may be applied to
petitioners’ 1948 actions, we need not address the District Court’s alterna-
tive suggestion that petitioners’ subsequent alleged wrongdoing would be
sufficient, in and of itself, to establish jurisdiction.

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spondent’s specific claims. Only the former conclusion con-
cerns us here. Presuming that our decision in Landgraf v.
USI Film Products, 511 U. S. 244 (1994), governed its retro-
activity analysis, the court “first consider[ed] whether Con-
gress expressly stated the [FSIA’s] reach.” 142 F. Supp. 2d,
at 1199. Finding no such statement, the court then asked
whether application of the Act to petitioners’ 1948 actions
“would impair rights [petitioners] possessed when [they]
acted, impose new duties on [them], or increase [their] liabil-
ity for past conduct.” Ibid. Because it deemed the FSIA
“a jurisdictional statute that does not alter substantive legal
rights,” the court answered this second question in the nega-
tive and accordingly found the Act controlling. Id., at 1201.
As further support for this finding, the court noted that the
FSIA itself provides that “ ‘[c]laims of foreign states to im-
munity should henceforth be decided by courts of the United
States . . . in conformity with the principles set forth in this
chapter.’ ” Ibid. (quoting 28 U. S. C. § 1602) (emphasis in
District Court opinion). In the court’s view, this language
suggests the Act “is to be applied to all cases decided after
its enactment regardless of when the plaintiff ’s cause of ac-
tion may have accrued.” 142 F. Supp. 2d, at 1201.
The Court of Appeals agreed that the FSIA applies to this
case.8 Rather than endorsing the District Court’s reliance
on the Act’s jurisdictional nature, however, the panel rea-
soned that applying the FSIA to Austria’s alleged wrongdo-
ing was not impermissibly retroactive because Austria could
not legitimately have expected to receive immunity for that
wrongdoing even in 1948 when it occurred. The court
rested that conclusion on an analysis of American courts’
then-prevalent practice of deferring to case-by-case immu-
nity determinations by the State Department, and on that
8 The Court of Appeals also affirmed the District Court’s conclusion that
28 U. S. C. § 1605(a)(3) covers respondent’s claims. 317 F. 3d 954, 967–969,
974 (CA9 2002). We declined to review that aspect of the panel’s ruling.
539 U. S. 987 (2003).

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Department’s expressed policy, as of 1949, of “ ‘reliev[ing]
American courts from any restraint upon the exercise of
their jurisdiction to pass upon the validity of the acts of Nazi
officials.’ ” 317 F. 3d, at 965 (quoting Press Release No. 296,
Jurisdiction of United States Courts Re Suits for Identifia-
ble Property Involved in Nazi Forced Transfers (emphasis
deleted)).
We granted certiorari, 539 U. S. 987 (2003), and now affirm
the judgment of the Court of Appeals, though on different
reasoning.
III
Chief Justice Marshall’s opinion in Schooner Exchange v.
McFaddon, 7 Cranch 116 (1812), is generally viewed as the
source of our foreign sovereign immunity jurisprudence. In
that case, the libellants claimed to be the rightful owners of
a French ship that had taken refuge in the port of Philadel-
phia. The Court first emphasized that the jurisdiction of
the United States over persons and property within its terri-
tory “is susceptible of no limitation not imposed by itself,”
and thus foreign sovereigns have no right to immunity in
our courts. Id., at 136. Chief Justice Marshall went on to
explain, however, that as a matter of comity, members of the
international community had implicitly agreed to waive the
exercise of jurisdiction over other sovereigns in certain
classes of cases, such as those involving foreign ministers or
the person of the sovereign.9 Accepting a suggestion ad-
vanced by the Executive Branch, see id., at 134, the Chief
Justice concluded that the implied waiver theory also served
to exempt the Schooner Exchange—“a national armed ves-
9 “Th[e] perfect equality and absolute independence of sovereigns, and
th[e] common interest impelling them to mutual intercourse, and an inter-
change of good offices with each other, have given rise to a class of cases
in which every sovereign is understood to wave [sic] the exercise of a part
of that complete exclusive territorial jurisdiction, which has been stated to
be the attribute of every nation.” Schooner Exchange, 7 Cranch, at 137.

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sel . . . of the emperor of France”—from United States
courts’ jurisdiction. Id., at 145–146.10
In accordance with Chief Justice Marshall’s observation
that foreign sovereign immunity is a matter of grace and
comity rather than a constitutional requirement, this Court
has “consistently . . . deferred to the decisions of the political
branches—in particular, those of the Executive Branch—on
whether to take jurisdiction” over particular actions against
foreign sovereigns and their instrumentalities. Verlinden
B. V. v. Central Bank of Nigeria, 461 U. S. 480, 486 (1983)
(citing Ex parte Peru, 318 U. S. 578, 586–590 (1943); Republic
of Mexico v. Hoffman, 324 U. S. 30, 33–36 (1945)). Until
1952 the Executive Branch followed a policy of requesting
immunity in all actions against friendly sovereigns. 461
U. S., at 486. In that year, however, the State Department
concluded that “immunity should no longer be granted in cer-
tain types of cases.” 11 App. A to Brief for Petitioners 1a.
In a letter to the Acting Attorney General, the Acting Legal
Adviser for the Secretary of State, Jack B. Tate, explained
10 Chief Justice Marshall noted, however, that the outcome might well
be different if the case involved a sovereign’s private property:
“Without indicating any opinion on this question, it may safely be af-
firmed, that there is a manifest distinction between the private property
of the person who happens to be a prince, and that military force which
supports the sovereign power, and maintains the dignity and the inde-
pendence of a nation. A prince, by acquiring private property in a foreign
country, may possibly be considered as subjecting that property to the
territorial jurisdiction; he may be considered as so far laying down the
prince, and assuming the character of a private individual; but this he
cannot be presumed to do with respect to any portion of that armed force,
which upholds his crown, and the nation he is entrusted to govern.” Id.,
at 145.
11 Letter from Jack B. Tate, Acting Legal Adviser, U. S. Dept. of State,
to Acting U. S. Attorney General Philip B. Perlman (May 19, 1952), re-
printed in 26 Dept. State Bull. 984–985 (1952), and in Alfred Dunhill of
London, Inc. v. Republic of Cuba, 425 U. S. 682, 711–715 (1976) (App. 2 to
opinion of the Court).

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that the Department would thereafter apply the “restrictive
theory” of sovereign immunity:
“A study of the law of sovereign immunity reveals the
existence of two conflicting concepts of sovereign immu-
nity, each widely held and firmly established. Accord-
ing to the classical or absolute theory of sovereign im-
munity, a sovereign cannot, without his consent, be
made a respondent in the courts of another sovereign.
According to the newer or restrictive theory of sover-
eign immunity, the immunity of the sovereign is recog-
nized with regard to sovereign or public acts (jure impe-
rii) of a state, but not with respect to private acts (jure
gestionis). . . . [I]t will hereafter be the Department’s
policy to follow the restrictive theory . . . in the consider-
ation of requests of foreign governments for a grant of
sovereign immunity.” Id., at 1a, 4a–5a.
As we explained in our unanimous opinion in Verlinden,
the change in State Department policy wrought by the “Tate
Letter” had little, if any, impact on federal courts’ approach
to immunity analyses: “As in the past, initial responsibility
for deciding questions of sovereign immunity fell primarily
upon the Executive acting through the State Department,”
and courts continued to “abid[e] by” that Department’s
“ ‘suggestions of immunity.’ ” 461 U. S., at 487. The change
did, however, throw immunity determinations into some dis-
array, as “foreign nations often placed diplomatic pressure
on the State Department,” and political considerations some-
times led the Department to file “suggestions of immunity in
cases where immunity would not have been available under
the restrictive theory.” Id., at 487–488. Complicating mat-
ters further, when foreign nations failed to request immunity
from the State Department:
“[T]he responsibility fell to the courts to determine
whether sovereign immunity existed, generally by ref-
erence to prior State Department decisions. . . . Thus,

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sovereign immunity determinations were made in two
different branches, subject to a variety of factors, some-
times including diplomatic considerations. Not surpris-
ingly, the governing standards were neither clear nor
uniformly applied.” Ibid.
In 1976 Congress sought to remedy these problems by
enacting the FSIA, a comprehensive statute containing a
“set of legal standards governing claims of immunity in
every civil action against a foreign state or its political subdi-
visions, agencies, or instrumentalities.” Id., at 488. The
Act “codifies, as a matter of federal law, the restrictive the-
ory of sovereign immunity,” ibid., and transfers primary re-
sponsibility for immunity determinations from the Executive
to the Judicial Branch. The preamble states that “hence-
forth” both federal and state courts should decide claims of
sovereign immunity in conformity with the Act’s principles.
28 U. S. C. § 1602.
The Act itself grants federal courts jurisdiction over civil
actions against foreign states, § 1330(a),12 and over diversity
actions in which a foreign state is the plaintiff, § 1332(a)(4);
it contains venue and removal provisions, §§ 1391(f), 1441(d);
it prescribes the procedures for obtaining personal jurisdic-
tion over a foreign state, § 1330(b); and it governs the extent
to which a state’s property may be subject to attachment or
execution, §§ 1609–1611. Finally, the Act carves out certain
exceptions to its general grant of immunity, including the
expropriation exception on which respondent’s complaint re-
lies. See supra, at 685–686, and n. 5. These exceptions are
central to the Act’s functioning: “At the threshold of every
action in a district court against a foreign state, . . . the court
must satisfy itself that one of the exceptions applies,” as
“subject-matter jurisdiction in any such action depends” on
that application. Verlinden, 461 U. S., at 493–494.
12 The Act defines the term “foreign state” to include a state’s political
subdivisions, agencies, and instrumentalities. 28 U. S. C. § 1603(a).

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IV
The District Court agreed with respondent that the
FSIA’s expropriation exception covers petitioners’ alleged
wrongdoing, 142 F. Supp. 2d, at 1202, and the Court of Ap-
peals affirmed that holding, 317 F. 3d, at 967–969, 974. As
noted above, however, we declined to review this aspect of
the courts’ opinions, confining our grant of certiorari to the
issue of the FSIA’s general applicability to conduct that oc-
curred prior to the Act’s 1976 enactment, and more specifi-
cally, prior to the State Department’s 1952 adoption of the
restrictive theory of sovereign immunity. See supra, at 681,
687–688, and n. 8. We begin our analysis of that issue by
explaining why, contrary to the assumption of the District
Court, 142 F. Supp. 2d, at 1199–1201, and Court of Appeals,
317 F. 3d, at 963–967, the default rule announced in our opin-
ion in Landgraf v. USI Film Products, 511 U. S. 244 (1994),
does not control the outcome in this case.
In Landgraf we considered whether § 102 of the Civil
Rights Act of 1991, which permits a party to seek compensa-
tory and punitive damages for certain types of intentional
employment discrimination, Rev. Stat. § 1977A, as added, 105
Stat. 1072, 42 U. S. C. § 1981a(a), and to demand a jury trial
if such damages are sought, § 1981a(c), applied to an employ-
ment discrimination case that was pending on appeal when
the statute was enacted. The issue forced us to confront the
“ ‘apparent tension’ ” between our rule that “ ‘a court is to
apply the law in effect at the time it renders its decision,’ ”
511 U. S., at 264 (quoting Bradley v. School Bd. of Richmond,
416 U. S. 696, 711 (1974)), and the seemingly contrary “axiom
that ‘[r]etroactivity is not favored in the law’ ” and thus that
“ ‘congressional enactments . . . will not be construed to have
retroactive effect unless their language requires this re-
sult,’ ” 511 U. S., at 264 (quoting Bowen v. Georgetown Univ.
Hospital, 488 U. S. 204, 208 (1988)).
Acknowledging that, in most cases, the antiretroactivity
presumption is just that—a presumption, rather than a con-

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stitutional command 13 —we examined the rationales that
support it. We noted, for example, that “[t]he Legislature’s
. . . responsivity to political pressures poses a risk that it
may be tempted to use retroactive legislation as a means of
retribution against unpopular groups or individuals,” Land-
graf, 511 U. S., at 266, and that retroactive statutes may
upset settled expectations by “ ‘tak[ing] away or impair[ing]
vested rights acquired under existing laws, or creat[ing] a
new obligation, impos[ing] a new duty, or attach[ing] a new
disability, in respect to transactions or considerations al-
ready past,’ ” id., at 269 (quoting Society for Propagation of
the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CC
NH 1814) (Story, J.)). We further observed that these anti-
retroactivity concerns are most pressing in cases involving
“new provisions affecting contractual or property rights,
matters in which predictability and stability are of prime
importance.” 511 U. S., at 271.
In contrast, we sanctioned the application to all pending
and future cases of “intervening” statutes that merely “con-
fe[r] or ous[t] jurisdiction.” Id., at 274. Such application,
we stated, “usually takes away no substantive right but sim-
ply changes the tribunal that is to hear the case.” Ibid. (in-
ternal quotation marks omitted). Similarly, the “diminished
reliance interests in matters of procedure” permit courts to
apply changes in procedural rules “in suits arising before
[the rules’] enactment without raising concerns about retro-
activity.” Id., at 275.
Balancing these competing concerns, we described the pre-
sumption against retroactive application in the following
terms:
“When a case implicates a federal statute enacted after
the events in suit, the court’s first task is to determine
13 But see Landgraf, 511 U. S., at 266–268 (identifying several constitu-
tional provisions that express the antiretroactivity principle, including the
Ex Post Facto Clause, Art. I, § 10, cl. 1, and the prohibition on “Bills of
Attainder,” Art. I, §§ 9–10).

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whether Congress has expressly prescribed the statute’s
proper reach. If Congress has done so, of course, there
is no need to resort to judicial default rules. When,
however, the statute contains no such express command
the court must determine whether the new statute
would have retroactive effect, i. e., whether it would im-
pair rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new duties
with respect to transactions already completed. If the
statute would operate retroactively, our traditional pre-
sumption teaches that it does not govern absent clear
congressional intent favoring such a result.” Id., at
280.14
Though seemingly comprehensive, this inquiry does not
provide a clear answer in this case. Although the FSIA’s
preamble suggests that it applies to preenactment conduct,
see infra, at 697–698, that statement by itself falls short of
an “expres[s] prescri[ption of] the statute’s proper reach.”
Under Landgraf, therefore, it is appropriate to ask whether
the Act affects substantive rights (and thus would be imper-
missibly retroactive if applied to preenactment conduct) or
addresses only matters of procedure (and thus may be ap-
plied to all pending cases regardless of when the underlying
conduct occurred). But the FSIA defies such categoriza-
tion. To begin with, none of the three examples of retroac-
tivity mentioned in the above quotation fits the FSIA’s clari-
fication of the law of sovereign immunity. Prior to 1976
foreign states had a justifiable expectation that, as a matter
of comity, United States courts would grant them immunity
for their public acts (provided the State Department did not
recommend otherwise), but they had no “right” to such im-
14 Applying this rule to the question in the case, we concluded that § 102
of the Civil Rights Act of 1991 should not apply to cases arising before its
enactment. 511 U. S., at 293.

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munity. Moreover, the FSIA merely opens United States
courts to plaintiffs with pre-existing claims against foreign
states; the Act neither “increase[s those states’] liability for
past conduct” nor “impose[s] new duties with respect to
transactions already completed.” 511 U. S., at 280. Thus,
the Act does not at first appear to “operate retroactively”
within the meaning of the Landgraf default rule.
That preliminary conclusion, however, creates some ten-
sion with our observation in Verlinden that the FSIA is not
simply a jurisdictional statute “concern[ing] access to the
federal courts” but a codification of “the standards governing
foreign sovereign immunity as an aspect of substantive fed-
eral law.” 461 U. S., at 496–497 (emphasis added). More-
over, we noted in Verlinden that in any suit against a foreign
sovereign, “the plaintiff will be barred from raising his claim
in any court in the United States” unless one of the FSIA’s
exceptions applies, id., at 497 (emphasis added), and we have
stated elsewhere that statutes that “creat[e] jurisdiction”
where none otherwise exists “spea[k] not just to the power
of a particular court but to the substantive rights of the par-
ties as well,” Hughes Aircraft Co. v. United States ex rel.
Schumer, 520 U. S. 939, 951 (1997) (emphasis in original).
Such statutes, we continued, “even though phrased in ‘juris-
dictional’ terms, [are] as much subject to our presumption
against retroactivity as any other[s].” Ibid.15
15 Of course, the FSIA differs from the statutory amendment at issue in
Hughes Aircraft. That amendment was attached to the statute that cre-
ated the cause of action, see former 31 U. S. C. § 3730(b)(1) (1982 ed.), 96
Stat. 978; 31 U. S. C. § 3730(b)(1), 100 Stat. 3154, and it prescribed a limita-
tion that any court entertaining the cause of action was bound to apply,
see § 3730(e)(4)(A), 100 Stat. 3157. When a “jurisdictional” limitation ad-
heres to the cause of action in this fashion—when it applies by its terms
regardless of where the claim is brought—the limitation is essentially sub-
stantive. In contrast, the FSIA simply limits the jurisdiction of federal
and state courts to entertain claims against foreign sovereigns. The Act
does not create or modify any causes of action, nor does it purport to limit

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Thus, Landgraf ’s default rule does not definitively resolve
this case. In our view, however, Landgraf ’s antiretroactiv-
ity presumption, while not strictly confined to cases involv-
ing private rights, is most helpful in that context. Cf. 511
U. S., at 271, n. 25 (“[T]he great majority of our decisions
relying upon the antiretroactivity presumption have in-
volved intervening statutes burdening private parties”).
The aim of the presumption is to avoid unnecessary post hoc
changes to legal rules on which parties relied in shaping
their primary conduct. But the principal purpose of foreign
sovereign immunity has never been to permit foreign states
and their instrumentalities to shape their conduct in reliance
on the promise of future immunity from suit in United States
courts. Rather, such immunity reflects current political re-
alities and relationships, and aims to give foreign states and
their instrumentalities some present “protection from the in-
convenience of suit as a gesture of comity.” Dole Food Co.
v. Patrickson, 538 U. S. 468, 479 (2003). Throughout history,
courts have resolved questions of foreign sovereign immu-
nity by deferring to the “decisions of the political branches
. . . on whether to take jurisdiction.” Verlinden, 461 U. S.,
at 486. In this sui generis context, we think it more appro-
priate, absent contraindications, to defer to the most recent
such decision—namely, the FSIA—than to presume that de-
cision inapplicable merely because it postdates the conduct
in question.16
foreign countries’ decisions about what claims against which defendants
their courts will entertain.
Even if the dissent is right that, like the provision at issue in Hughes
Aircraft, the FSIA “create[s] jurisdiction where there was none before,”
post, at 723 (opinion of Kennedy, J.), however, that characteristic is in
some tension with other, less substantive aspects of the Act. This ten-
sion, in turn, renders the Landgraf approach inconclusive and requires us
to examine the entire statute in light of the underlying principles govern-
ing our retroactivity jurisprudence.
16 Between 1952 and 1976 courts and the State Department similarly
presumed that the Tate Letter was applicable even in disputes concerning
conduct that predated the letter. See, e. g., National City Bank of N. Y.

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V
This leaves only the question whether anything in the
FSIA or the circumstances surrounding its enactment sug-
gests that we should not apply it to petitioners’ 1948 actions.
Not only do we answer this question in the negative, but we
find clear evidence that Congress intended the Act to apply
to preenactment conduct.
To begin with, the preamble of the FSIA expresses Con-
gress’ understanding that the Act would apply to all post-
enactment claims of sovereign immunity. That section
provides:
“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.” 28 U. S. C. § 1602 (emphasis added).
Though perhaps not sufficient to satisfy Landgraf ’s “express
command” requirement, 511 U. S., at 280, this language is
unambiguous: Immunity “claims”—not actions protected by
immunity, but assertions of immunity to suits arising from
those actions—are the relevant conduct regulated by the
Act; 17 those claims are “henceforth” to be decided by the
courts. As the District Court observed, see supra, at 687
(citing 142 F. Supp. 2d, at 1201), this language suggests Con-
v. Republic of China, 348 U. S. 356, 361 (1955) (assuming, in dicta, that the
Tate Letter would govern the sovereign immunity analysis in a dispute
concerning treasury notes purchased in 1920 and 1947–1948).
17 Our approach to retroactivity in this case thus parallels that advocated
by Justice Scalia in his concurrence in Landgraf:
“The critical issue, I think, is not whether the rule affects ‘vested
rights,’ or governs substance or procedure, but rather what is the relevant
activity that the rule regulates. Absent clear statement otherwise, only
such relevant activity which occurs after the effective date of the statute
is covered. Most statutes are meant to regulate primary conduct, and
hence will not be applied in trials involving conduct that occurred before
their effective date. But other statutes have a different purpose and
therefore a different relevant retroactivity event.” 511 U. S., at 291 (opin-
ion concurring in judgment).

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gress intended courts to resolve all such claims “in conform-
ity with the principles set forth” in the Act, regardless of
when the underlying conduct occurred.18
The FSIA’s overall structure strongly supports this con-
clusion. Many of the Act’s provisions unquestionably apply
to cases arising out of conduct that occurred before 1976. In
Dole Food Co. v. Patrickson, 538 U. S. 468 (2003), for exam-
ple, we held that whether an entity qualifies as an “instru-
mentality” of a “foreign state” for purposes of the FSIA’s
grant of immunity depends on the relationship between the
entity and the state at the time suit is brought rather than
when the conduct occurred. In addition, Verlinden, which
upheld against constitutional challenge 28 U. S. C. § 1330’s
grant of subject-matter jurisdiction, involved a dispute over
a contract that predated the Act. 461 U. S., at 482–483, 497.
And there has never been any doubt that the Act’s proce-
dural provisions relating to venue, removal, execution, and
attachment apply to all pending cases. Thus, the FSIA’s
preamble indicates that it applies “henceforth,” and its body
includes numerous provisions that unquestionably apply to
claims based on pre-1976 conduct. In this context, it would
be anomalous to presume that an isolated provision (such as
the expropriation exception on which respondent relies) is of
purely prospective application absent any statutory language
to that effect.
18 The dissent is quite right that “ ‘[a] statement that a statute will be-
come effective on a certain date does not even arguably suggest that it
has any application to conduct that occurred at an earlier date.’ ” Post,
at 719. The provision of the FSIA to which this observation applies, how-
ever, is not the preamble but § 8, which states that the “Act shall take
effect ninety days after the date of its enactment.” 90 Stat. 2898, note
following 28 U. S. C. § 1602. The office of the word “henceforth” is to
make the statute effective with respect to claims to immunity thereafter
asserted. Notably, any such claim asserted immediately after the statute
became effective would necessarily have related to conduct that took place
at an earlier date.

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Finally, applying the FSIA to all pending cases regardless
of when the underlying conduct occurred is most consistent
with two of the Act’s principal purposes: clarifying the rules
that judges should apply in resolving sovereign immunity
claims and eliminating political participation in the reso-
lution of such claims. We have recognized that, to accom-
plish these purposes, Congress established a comprehensive
framework for resolving any claim of sovereign immunity:
“We think that the text and structure of the FSIA dem-
onstrate Congress’ intention that the FSIA be the sole
basis for obtaining jurisdiction over a foreign state in
our courts. Sections 1604 and 1330(a) work in tandem:
§ 1604 bars federal and state courts from exercising ju-
risdiction 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 by
aliens when a foreign state is not entitled to immunity.
As we said in Verlinden, the FSIA ‘must be applied by
the district courts in every action against a foreign sov-
ereign, since subject-matter jurisdiction in any such ac-
tion depends on the existence of one of the specified ex-
ceptions to foreign sovereign immunity.’ ” Argentine
Republic v. Amerada Hess Shipping Corp., 488 U. S.
428, 434–435 (1989) (quoting Verlinden, 461 U. S., at 493).
The Amerada Hess respondents’ claims concerned conduct
that postdated the FSIA, so we had no occasion to consider
the Act’s retroactivity. Nevertheless, our observations
about the FSIA’s inclusiveness are relevant in this case:
Quite obviously, Congress’ purposes in enacting such a com-
prehensive jurisdictional scheme would be frustrated if,
in postenactment cases concerning preenactment conduct,
courts were to continue to follow the same ambiguous and
politically charged “ ‘standards’ ” that the FSIA replaced.
See supra, at 691 (quoting Verlinden, 461 U. S., at 487–488).

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We do not endorse the reasoning of the Court of Appeals.
Indeed, we think it engaged in precisely the kind of detailed
historical inquiry that the FSIA’s clear guidelines were in-
tended to obviate. Nevertheless, we affirm the panel’s judg-
ment because the Act, freed from Landgraf ’s antiretroactiv-
ity presumption, clearly applies to conduct, like petitioners’
alleged wrongdoing, that occurred prior to 1976 and, for that
matter, prior to 1952 when the State Department adopted
the restrictive theory of sovereign immunity.19
VI
We conclude by emphasizing the narrowness of this hold-
ing. To begin with, although the District Court and Court
of Appeals determined that § 1605(a)(3) covers this case, we
declined to review that determination. See supra, at 681,
687–688, and n. 8. Nor do we have occasion to comment on
the application of the so-called “act of state” doctrine to peti-
tioners’ alleged wrongdoing. Unlike a claim of sovereign
immunity, which merely raises a jurisdictional defense, the
act of state doctrine provides foreign states with a substan-
tive defense on the merits. Under that doctrine, the courts
of one state will not question the validity of public acts (acts
jure imperii) performed by other sovereigns within their
own borders, even when such courts have jurisdiction over
a controversy in which one of the litigants has standing to
challenge those acts.20 See Underhill v. Hernandez, 168
U. S. 250, 252 (1897); Banco Nacional de Cuba v. Sabbatino,
376 U. S. 398, 401 (1964) (“The act of state doctrine in its
19 Petitioners suggest that the latter date is important because it marked
the first shift in foreign states’ expectations concerning the scope of their
immunity. Whether or not the date would be significant to a Landgraf-
type analysis of foreign states’ settled expectations at various times prior
to the FSIA’s enactment, it is of no relevance in this case given our ration-
ale for finding the Act applicable to preenactment conduct.
20 Under the doctrine, redress of grievances arising from such acts must
be obtained through diplomatic channels.

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traditional formulation precludes the courts of this country
from inquiring into the validity of the public acts a recog-
nized foreign sovereign power committed within its own ter-
ritory”). Petitioners principally rely on the act of state doc-
trine to support their assertion that foreign expropriations
are public acts for which, prior to the enactment of the FSIA,
sovereigns expected immunity. Brief for Petitioners 18–20.
Applying the FSIA in this case would upset that settled ex-
pectation, petitioners argue, and thus the Act “would operate
retroactively” under Landgraf. 511 U. S., at 280. But be-
cause the FSIA in no way affects application of the act of
state doctrine, our determination that the Act applies in this
case in no way affects any argument petitioners may have
that the doctrine shields their alleged wrongdoing.
Finally, while we reject the United States’ recommenda-
tion to bar application of the FSIA to claims based on pre-
enactment conduct, Brief for United States as Amicus Cu-
riae, nothing in our holding prevents the State Department
from filing statements of interest suggesting that courts de-
cline to exercise jurisdiction in particular cases implicating
foreign sovereign immunity.21 The issue now before us, to
which the Brief for United States as Amicus Curiae is
addressed, concerns interpretation of the FSIA’s reach—a
“pure question of statutory construction . . . well within the
province of the Judiciary.” INS v. Cardoza-Fonseca, 480
U. S. 421, 446, 448 (1987). While the United States’ views
on such an issue are of considerable interest to the Court,
they merit no special deference. See, e. g., ibid. In con-
21 See, e. g., Flatow v. Islamic Republic of Iran, 305 F. 3d 1249, 1251–
1252, and n. 4 (CADC 2002) (statement of interest concerning attachment
of property that is owned by a foreign state but located in the United
States); Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels,
221 F. 3d 634, 642 (CA4 2000) (statement of interest concerning sovereign
immunity of a foreign state’s vessels); 767 Third Ave. Assoc. v. Consulate
General of Socialist Federal Republic of Yugoslavia, 218 F. 3d 152, 157
(CA2 2000) (statement of interest concerning successor states to the So-
cialist Federal Republic of Yugoslavia).

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Scalia, J., concurring
trast, should the State Department choose to express its
opinion on the implications of exercising jurisdiction over
particular petitioners in connection with their alleged con-
duct,22 that opinion might well be entitled to deference as the
considered judgment of the Executive on a particular ques-
tion of foreign policy.23 See, e. g., Verlinden, 461 U. S., at
486; American Ins. Assn. v. Garamendi, 539 U. S. 396, 414
(2003) (discussing the President’s “ ‘vast share of responsibil-
ity for the conduct of our foreign relations’ ”). We express
no opinion on the question whether such deference should be
granted in cases covered by the FSIA.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice Scalia, concurring.
I join the Court’s opinion, but add a few thoughts of
my own.
22 We note that the United States Government has apparently indicated
to the Austrian Federal Government that it will not file a statement of
interest in this case. App. 243a (Letter from Hans Winkler, Legal Ad-
viser, Austrian Federal Ministry for Foreign Affairs, to Deputy Secretary
of the Treasury Stuart E. Eizenstat (Jan. 17, 2001)). The enforceability
of that indication, of course, is not before us.
23 Mislabeling this observation a “constitutional conclusion,” the dissent
suggests that permitting the Executive to comment on a party’s assertion
of sovereign immunity will result in “[u]ncertain prospective application
of our foreign sovereign immunity law.” Post, at 734, 737. We do not
hold, however, that executive intervention could or would trump consid-
ered application of the FSIA’s more neutral principles; we merely note
that the Executive’s views on questions within its area of expertise merit
greater deference than its opinions regarding the scope of a congressional
enactment. Furthermore, we fail to understand how our holding, which
requires that courts apply the FSIA’s sovereign immunity rules in all
cases, somehow injects greater uncertainty into sovereign immunity law
than the dissent’s approach, which would require, for cases concerning
pre-1976 conduct, case-by-case analysis of the status of that law at the
time of the offending conduct—including analysis of the existence or non-
existence of any State Department statements on the subject.

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Scalia, J., concurring
In Landgraf v. USI Film Products, 511 U. S. 244, 292
(1994) (opinion concurring in judgments, joined by Kennedy
and Thomas, JJ.), I noted our “consistent practice of giving
immediate effect to statutes that alter a court’s jurisdiction.”
I explained this on the ground that “the purpose of provi-
sions conferring or eliminating jurisdiction is to permit or
forbid the exercise of judicial power” rather than to regulate
primary conduct, so that the relevant time for purposes of
retroactivity analysis is not when the underlying conduct oc-
curred, but when judicial power was invoked. Id., at 293.
Thus, application of a new jurisdictional statute to cases filed
after its enactment is not “retroactive” even if the conduct
sued upon predates the statute. Ibid. I noted that this
rule applied even when the effect of a jurisdiction-restricting
statute in a particular case is to “deny a litigant a forum for
his claim entirely, or [to] leave him with an alternate forum
that will deny relief for some collateral reason.” Id., at 292–
293 (citations omitted). The logical corollary of this last
statement is that a jurisdiction-expanding statute should be
applied to subsequent cases even if it sometimes has the ef-
fect of creating a forum where none existed.
The dissent rejects this approach and instead undertakes
a case-specific inquiry into whether United States courts
would have asserted jurisdiction at the time of the underly-
ing conduct. Post, at 720–728 (opinion of Kennedy, J.). It
justifies this approach on the basis of Hughes Aircraft Co.
v. United States ex rel. Schumer, 520 U. S. 939 (1997). For
reasons noted by the Court, see ante, at 695–696, n. 15,
I think reliance on that case is mistaken. The Foreign Sov-
ereign Immunities Act of 1976 (FSIA), and the regime that
it replaced, do not by their own force create or modify sub-
stantive rights; respondent’s substantive claims are based
primarily on California law, see ante, at 685, n. 4. Federal
sovereign-immunity law limits the jurisdiction of federal and
state courts to entertain those claims, see 28 U. S. C. §§ 1604–
1605, but not respondent’s right to seek redress elsewhere.

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Breyer, J., concurring
It is true enough that, as to a claim that no foreign court
would entertain, the FSIA can have the accidental effect of
rendering enforceable what was previously unenforceable.
But unlike a Hughes Aircraft-type statute, which confers or
limits “jurisdiction” in every court where the claim might be
brought, the FSIA affects substantive rights only acciden-
tally, and not as a necessary and intended consequence of
the law. Statutes like the FSIA do not “spea[k] . . . to the
substantive rights of the parties,” Hughes Aircraft, supra,
at 951 (emphasis added), even if they happen sometimes to
affect them.
Justice Breyer, with whom Justice Souter joins,
concurring.
I join the Court’s opinion and judgment, but I would rest
that judgment upon several additional considerations.
I
A
For present purposes I assume the following:
1. Adele Bloch-Bauer died in Vienna in 1925. Her will
asked her husband Ferdinand “ ‘kindly’ ” to donate, “upon his
death,” six Klimt paintings to the Austrian Gallery (Gallery).
A year later, Ferdinand “formally assured the Austrian pro-
bate court that he would honor his wife’s gift.” See ante,
at 682; 317 F. 3d 954, 959 (CA9 2002); 142 F. Supp. 2d 1187,
1192–1193 (CD Cal. 2001); Brief for Petitioners 6.
2. When the Nazis seized power in Austria in 1938, Ferdi-
nand fled to Switzerland. The Nazis took over Bloch-Bauer
assets, and a Nazi lawyer, Dr. Fu¨ hrer, liquidated Ferdinand’s
estate. Dr. Fu¨ hrer disposed of five of the six Klimt paint-
ings as follows: He sold or gave three to the Gallery; he sold
one to the Museum of the City of Vienna; and he kept one.
(The sixth somehow ended up in the hands of a private collec-
tor who gave it to the Gallery in 1988.) See ante, at 682,
683, n. 3; 317 F. 3d, at 959–960.

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3. Ferdinand died in Switzerland in 1945. His will did not
mention the paintings, but it did name a residuary legatee,
namely, Ferdinand’s niece, Maria Altmann, by then an Amer-
ican citizen. As a residuary legatee Altmann received Fer-
dinand’s rights to the paintings. See ante, at 681; 317 F. 3d,
at 960, 968; Brief for Petitioners 6–7.
4. In 1948, Bloch-Bauer family members, including Alt-
mann, asked Austria to return a large number of family art-
works. At that time Austrian law prohibited export of “art-
works . . . deemed to be important to Austria’s cultural
heritage.” But Austria granted Altmann permission to ex-
port some works of art in return for Altmann’s recognition,
in a legal agreement, of Gallery ownership of the five Klimt
paintings. (The Gallery already had three, the Museum of
the City of Vienna transferred the fourth, and the Bloch-
Bauer family, having recovered the fifth, which Dr. Fu¨ hrer
had kept, donated it to the Gallery.) See ante, at 683; 317
F. 3d, at 960; 142 F. Supp. 2d, at 1193–1195; Brief for Petition-
ers 6–8; App. 168a.
5. Fifty years later, newspaper stories suggested that in
1948 the Gallery had followed a policy of asserting ownership
of Nazi-looted works of art that it did not own. Austria then
enacted a restitution statute allowing individuals to reclaim
properties that were subject to any such false assertion of
ownership or coerced donation in exchange for export per-
mits. The statute also created an advisory board to deter-
mine the validity of restitution claims. See ante, at 684; 142
F. Supp. 2d, at 1195–1196; Brief for Petitioners 8.
6. In 1999, Altmann brought claims for restitution of sev-
eral items including the five Klimt paintings. She told the
advisory board that, in 1948, her lawyer had wrongly told
her that the Gallery owned the five Klimt paintings irrespec-
tive of Nazi looting (title flowing from Adele’s will or Ferdi-
nand’s statement of donative intent to the probate court).
In her view, her 1948 agreement amounted to a coerced dona-
tion. The advisory board ordered some items returned (16

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Klimt drawings and 19 porcelain settings), but found that the
5 Klimt paintings belonged to the Gallery. See 317 F. 3d, at
960–962; 142 F. Supp. 2d, at 1195–1196; Brief for Petitioners
8, and n. 4.
7. Altmann then brought this lawsuit against the Gallery,
an agency or instrumentality of the Austrian Government,
in federal court in Los Angeles. She seeks return of the
five Klimt paintings.
B
The question before us does not concern the legal validity
of title passed through Nazi looting. Austria nowhere con-
dones or bases its claim of ownership upon any such activity.
Rather, its legal claim to the paintings rests upon any or all
of the following: Adele’s 1925 will, Ferdinand’s probate-court
confirmation, and Altmann’s 1948 agreement. Nor does the
locus of the lawsuit in Los Angeles reflect any legal deter-
mination about the merits of Austrian legal procedures.
Cf. ante, at 684–685. The Court of Appeals rejected Aus-
tria’s forum non conveniens claim, not because of the Aus-
trian courts’ required posting of a $135,000 filing fee that is
potentially refundable, App. 229a–231a, but mainly because
of Altmann’s age, 317 F. 3d, at 973–974.
The sole issue before us is whether the “expropriation ex-
ception” of the Foreign Sovereign Immunities Act of 1976
(FSIA or Act), 28 U. S. C. § 1605(a)(3), withdrawing an other-
wise applicable sovereign immunity defense, applies to this
case. The exception applies to “foreign state[s]” and to any
“agency or instrumentality” of a foreign state. §§ 1603,
1605(a)(3). The exception deprives the entity of the sover-
eign immunity that the law might otherwise entitle it “in any
case,” § 1605, where that entity “is engaged in a commercial
activity in the United States” and the case is one “in which
rights in property taken in violation of international law are
in issue,” § 1605(a)(3).
It is conceded that the Gallery is an “agency or instrumen-
tality” of a foreign state, namely, the Republic of Austria.

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Nor can Austria now deny that the Gallery is “engaged in
a commercial activity in the United States.” The lower
courts held that the Gallery’s publishing and advertising ac-
tivities satisfy this condition. 317 F. 3d, at 968–969; 142
F. Supp. 2d, at 1204–1205. And our grant of certiorari did
not embrace that aspect of the lower courts’ decision. 539
U. S. 987 (2003); see ante, at 692.
But what about the last element: Is this a “case . . . in
which rights in property taken in violation of international
law are in issue”? Altmann claims that Austria’s 1948 ac-
tions (falsely asserting ownership of the paintings and ex-
torting acknowledgment of its ownership in return for ex-
port permits) violated either customary international law or
a 1907 Hague Convention. App. 203a–204a; Brief for Re-
spondent 4, 35; Hague Convention (IV) on the Laws and Cus-
toms of War on Land, 36 Stat. 2277, 2309, Art. 56 (1907) (“All
seizure of . . . works of art . . . is forbidden, and should be
made the subject of legal proceedings”).
Austria replies that, even so, this part of the statute is not
“retroactive.” Austria means that § 1605(a)(3), the expro-
priation exception, does not apply to events that occurred
in 1948, almost 30 years before the FSIA’s enactment. The
upshot is that if the FSIA’s general rule of immunity, § 1604,
applies retroactively to events in 1948 (as is undisputed
here), but the expropriation exception, § 1605(a)(3), does not
apply retroactively, then the Gallery can successfully assert
its sovereign immunity defense, preventing Altmann from
pursuing her claim.
II
The question, then, is whether the Act’s expropriation ex-
ception applies to takings that took place many years before
its enactment. The Court notes that Congress, when enact-
ing the FSIA in 1976, wrote that the Act should “henceforth”
apply to any claim brought thereafter. § 1602; ante, at 697.
The dissent believes that there is no logical inconsistency
between an Act that applies “henceforth” and a reading of

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§ 1605(a)(3) that limits it to “rights in property taken after
this Act came into force.” See post, at 718–720 (opinion
of Kennedy, J.). I agree with the dissent that the word
“henceforth” (and similar words) cannot resolve this dis-
agreement by themselves. Nonetheless several additional
considerations convince me that the Court is correct. As
Altmann argues, Congress intended the expropriation excep-
tion to apply retroactively, removing a defense of sovereign
immunity where “rights in property” were “taken in viola-
tion of international law,” irrespective of when that taking
occurred.
First, the literal language of the statute supports Altmann.
Several similar statutes and conventions limit their temporal
reach by explicitly stating, for example, that the Act does
“not apply to proceedings in respect of matters that occurred
before the date of the coming into force of this Act.” State
Immunity Act 1978, § 23(3), 10 Halsbury’s Statutes 829, 845
(4th ed. 2001 reissue) (U. K.) (emphasis added); see also State
Immunity Act 1979, § 1(2) (Singapore); Foreign States Im-
munities Act 1985, § 7(1) (Austl.); European Convention on
State Immunity, Art. 35(3). The 1976 Act says nothing ex-
plicitly suggesting any such limitation.
Second, the legal concept of sovereign immunity, as tradi-
tionally applied, is about a defendant’s status at the time of
suit, not about a defendant’s conduct before the suit. Thus
King Farouk’s sovereign status permitted him to ignore
Christian Dior’s payment demand for 11 “frocks and coats”
bought (while king) for his wife; but once the king lost his
royal status, Christian Dior could sue and collect (for clothes
sold before the abdication). See Ex-King Farouk of Egypt
v. Christian Dior, 84 Clunet 717, 24 I. L. R. 228, 229 (CA
Paris 1957) (Christian Dior “is entitled . . . to bring” the
ex-King to court “to answer for debts contracted” before his
abdication “when, as from the date of his abdication, he is no
longer entitled to claim . . . immunity” as “Hea[d] of State”);
see also Queen v. Bow Street Metropolitan Stipendiary Mag-

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Breyer, J., concurring
istrate (Ex parte Pinochet Ugarte), [2000] 1 A. C., 147, 201–
202 (1999) (opinion of Lord Browne-Wilkinson) (“[T]he head
of state is entitled to the same immunity as the state
itself. . . . He too loses immunity ratione personae on ceas-
ing to be head of state”); cf. Ter K. v. The Netherlands, Suri-
nam & Indonesia, 18 I. L. R. 223 (DC Hague 1951) (affording
Indonesia sovereign immunity after it became independent
while the suit was pending).
Indeed, just last Term, we unanimously reaffirmed this
classic principle when we held that a now-private corporation
could not assert sovereign immunity, even though the events
in question took place while a foreign government was its
owner. Dole Food Co. v. Patrickson, 538 U. S. 468, 479
(2003). We added that “[f]oreign sovereign immunity” is
not about “chilling” or not chilling “foreign states or their
instrumentalities in the conduct of their business.” Ibid.
(Kennedy, J.). Rather, the objective of the “sovereign im-
munity” doctrine (in contrast to other conduct-related immu-
nity doctrines) is simply to give foreign states and instru-
mentalities “some protection,” at the time of suit, “from the
inconvenience of suit as a gesture of comity.” Ibid.; see also
ante, at 694–695, 696. Compare conduct-related immunity
discussed in, e. g., Nixon v. Fitzgerald, 457 U. S. 731, 749
(1982) (absolute official immunity); Harlow v. Fitzgerald, 457
U. S. 800, 813 (1982) (qualified official immunity); Pinochet,
supra, at 202 (conduct-related immunity for “public acts”).
Third, the State Department’s and our courts’ own histori-
cal practice reflects this classic view. For example, in 1952,
the Department issued the Tate Letter adopting a restrictive
view of sovereign immunity, essentially holding foreign sov-
ereign immunity inapplicable in respect to a foreign state’s
commercial activity. Letter from Jack B. Tate, Acting
Legal Adviser, U. S. Dept. of State, to Acting U. S. Attorney
General Philip B. Perlman (May 19, 1952), reprinted in 26
Dept. State Bull. 984–985 (1952), and in Alfred Dunhill of
London, Inc. v. Republic of Cuba, 425 U. S. 682, 711–715

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Breyer, J., concurring
(1976) (App. 2 to opinion of the Court). As the dissent
acknowledges:
“After the Tate Letter’s issuance, the Executive evalu-
ated suits involving pre-Tate Letter conduct under the
Letter’s new standard when determining whether to
submit suggestions of immunity to the courts. The
Court, likewise, seems to have understood the Tate Let-
ter to require this sort of application. In National City
Bank of N. Y. [v. Republic of China, 348 U. S. 356
(1955)], the Court suggested that the Letter governed
in a case involving pre-1952 conduct, though careful
consideration of the question was unnecessary there.
[Id.], at 361.” Post, at 725 (emphasis and alterations
added).
Accord, ante, at 696–697, n. 16; see also, e. g., Arias v. S. S.
Fletero, Adm. No. 7492 (ED Va. 1952), reprinted in Digest
of United States Practice in International Law 1025–1026
(1977) (State Department deferred decision on a request for
immunity filed on May 7, 1952, 12 days before the Tate Let-
ter was issued, and then declined to suggest immunity based
on the Tate Letter standard); New York & Cuba Mail Steam-
ship Co. v. Republic of Korea, 132 F. Supp. 684, 685–686
(SDNY 1955) (State Department declined to suggest immu-
nity even though the suit concerned events over a year be-
fore the issuance of the Tate Letter); cf. Verlinden B. V. v.
Central Bank of Nigeria, 461 U. S. 480, 482–483, 497 (1983)
(applying the FSIA to a contract that predated the Act).
Fourth, contrary to the dissent’s contention, see post, at
724–725, 729–730, neither “reliance” nor “expectation” can
justify nonretroactivity here. Does the dissent mean by
“reliance” and “expectation” something real, i. e., an expro-
priating nation’s actual reliance at the time of taking that
other nations will continue to protect it from future lawsuits
by continuing to apply the same sovereign immunity doc-
trine? Such actual reliance could not possibly exist in fact.

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What taking in violation of international norms is likely to
have been influenced, not by politics or revolution, but by
knowledge of, or speculation about, the likely future shape
of America’s law of foreign sovereign immunity? To sug-
gest any such possibility, in respect to the expropriations
carried out by the Nazi or Communist regimes, or any other
such as I am aware, would approach the realm of fantasy.
While the matter is less clear in respect to less dramatic,
more individualized, takings, I still find any actual reliance
difficult to imagine.
More likely, the dissent is thinking in terms of “ ‘reason-
able reliance,’ ” post, at 723, a legal construct designed to
protect against unfairness. But a sovereign’s reliance on fu-
ture immunity here would have been unreasonable, hence no
such protection is warranted. A legally aware King Farouk
or any of his counterparts would have or should have known
that foreign sovereign immunity respects current status; it
does not protect past conduct. And its application is a mat-
ter, not of legal right, but of “grace and comity.” Verlinden,
supra, at 486; see also Dole, supra, at 479; supra, at 708–709.
Indeed, the dissent itself ignores “reliance” or “expecta-
tion” insofar as it assumes an expropriating nation’s aware-
ness that the Executive Branch could intervene and change
the rules, for example, by promulgating the Tate Letter and
applying it retroactively to pre-Tate Letter conduct. Com-
pare post, at 725–726, with Brief for Petitioners 11 (Austria
expected absolute immunity in 1948), and Brief for United
States as Amicus Curiae 8 (same). Nor does the dissent
convincingly explain why, if the Executive Branch can
change the scope of foreign sovereign immunity with retro-
active effect, Congress (with Executive Branch approval)
cannot “codify” Executive Branch efforts. H. R. Rep.
No. 94–1487, p. 7 (1976) (hereinafter H. R. Rep.); S. Rep.
No. 94–1310, p. 9 (1976) (hereinafter S. Rep.); Verlinden,
supra, at 488; Digest of United States Practice in Interna-
tional Law 327 (1976).

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Fifth, an attempt to read into § 1605(a)(3) a temporal quali-
fication related to the time of conduct, based on a theory of
“reliance” or “expectation,” creates complications and anom-
alies. The Solicitor General, on behalf of the United States,
proposes a solution that may, at first glance, seem simple:
Choose the date of the FSIA, roughly 1976, as a cutoff date
and apply the § 1605(a)(3) exception only to property “taken”
after that time. See Brief for United States as Amicus Cu-
riae 11–12. But the Solicitor General himself complicates
the proposal by pointing out, correctly, that each of the dif-
ferent activities described in each of the separate paragraphs
of § 1605(a) evolved from different common-law origins and
consequently might demand a different cutoff date. Ibid.
(“commercial activity exception” applies to events arising
after 1952; “waiver exception” applies to all events). More-
over, the Solicitor General’s limitation on the expropriation
exception would give immunity to some entities that, before
the FSIA, might not have expected immunity at all (say, be-
cause they were not then considered “sovereign”). Com-
pare §§ 1603–1604 with Restatement (Second) of Foreign Re-
lations Law of the United States § 66(g), Comment c, and
Reporters’ Note 2 (1965) (government corporations only enti-
tled to immunity if exercising public functions); Harvard Re-
search in International Law 483 (1932) (“The use of the term
‘State’ . . . results in excluding political subdivisions . . .”).
The dissent’s solution is even more complicated. It does
not choose a cutoff date at all, but would remand for the
lower courts to determine whether Austria’s 1948 conduct
would have fallen outside the scope of sovereign immunity
under the Tate Letter’s view of the matter. Post, at 727–
728. Of course, Austria in 1948 could not possibly have re-
lied on the Tate Letter, issued four years later. But, more
importantly, consider the historical inquiry the dissent sets
for the courts: Determine in the year 2004 what the State
Department in the years 1952–1976 would have thought
about the Tate Letter as applied to the actions of an Austrian

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Breyer, J., concurring
museum taken in the year 1948. That inquiry does not only
demand rarified historical speculation, it also threatens to
create the very kind of legal uncertainty that the FSIA’s
enactors hoped to put to rest. See ante, at 699.
Sixth, other legal principles, applicable to past conduct,
adequately protect any actual past reliance and adequately
prevent (in the dissent’s words) “open[ing] foreign nations
worldwide to vast and potential liability for expropriation
claims in regards to conduct that occurred generations ago,
including claims that have been the subject of international
negotiation and agreement.” Post, at 730.
For one thing, statutes of limitations, personal jurisdiction
and venue requirements, and the doctrine of forum non con-
veniens will limit the number of suits brought in American
courts. See, e. g., 317 F. 3d, at 969–974; Dayton v. Czecho-
slovak Socialist Republic, 672 F. Supp. 7, 13 (DC 1986)
(applying statute of limitations to expropriation claim). The
number of lawsuits will be further limited if the lower courts
are correct in their consensus view that § 1605(a)(3)’s refer-
ence to “violation of international law” does not cover expro-
priations of property belonging to a country’s own nationals.
See 317 F. 3d, at 968; Restatement (Third) of Foreign Rela-
tions Law of the United States § 712 (1986) (hereinafter Re-
statement (3d)).
Moreover, the act of state doctrine requires American
courts to presume the validity of “an official act of a foreign
sovereign performed within its own territory.” W. S. Kirk-
patrick & Co. v. Environmental Tectonics Corp., Int’l, 493
U. S. 400, 405 (1990); see also ante, at 700–701; Banco Nacio-
nal de Cuba v. Sabbatino, 376 U. S. 398, 423–424 (1964).
The FSIA “in no way affects existing law on the extent to
which, if at all, the ‘act of state’ doctrine may be applicable.”
H. R. Rep., at 20; S. Rep., at 19; see also ante, at 701. The
Second Hickenlooper Amendment restricts application of
that doctrine, but only in respect to “a confiscation or other
taking after January 1, 1959.” 22 U. S. C. § 2370(e)(2). The

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Breyer, J., concurring
State Department also has restricted the application of this
doctrine, freeing courts to “ ‘pass upon the validity of the
acts of Nazi officials.’ ” Bernstein v. N. V. Nederlandsche-
Amerikaansche Stoomvaart-Maatschappij, 210 F. 2d 375,
375–376 (CA2 1954) (per curiam) (quoting State Department
press release). But that is a policy matter for the State De-
partment to decide.
Further, the United States may enter a statement of inter-
est counseling dismissal. Ante, at 701–702; 28 U. S. C. § 517.
Such a statement may refer, not only to sovereign immunity,
but also to other grounds for dismissal, such as the presence
of superior alternative and exclusive remedies, see 22
U. S. C. §§ 1621–1645o (Foreign Claims Settlement Commis-
sion); Dames & Moore v. Regan, 453 U. S. 654, 679–683 (1981)
(describing Executive settlement of claims), or the nonjusti-
ciable nature (for that or other reasons) of the matters at
issue. See, e. g., ante, at 701, n. 21 (collecting cases); Hwang
Geum Joo v. Japan, 172 F. Supp. 2d 52, 58, 64–67 (DC 2001)
(finding claims to raise political questions that were settled
by international agreements).
Finally, a plaintiff may have to show an absence of reme-
dies in the foreign country sufficient to compensate for any
taking. Cf. Restatement (3d) § 713, Comment f (“Under in-
ternational law, ordinarily a state is not required to consider
a claim by another state for an injury to its national until
that person has exhausted domestic remedies, unless such
remedies are clearly sham or inadequate, or their application
is unreasonably prolonged”); Monterey v. Del Monte Dunes
at Monterey, Ltd., 526 U. S. 687, 721 (1999) (requirement of
exhausting available postdeprivation remedies under United
States law); Kirby Forest Industries, Inc. v. United States,
467 U. S. 1, 10 (1984) (same). A plaintiff who chooses to liti-
gate in this country in disregard of the postdeprivation rem-
edies in the “expropriating” state may have trouble showing
a “tak[ing] in violation of international law.” 28 U. S. C.
§ 1605(a)(3).

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Kennedy, J., dissenting
Because sovereign immunity traditionally concerns status,
not conduct, because other legal principles are available to
protect a defendant’s reasonable reliance on the state of the
law at the time the conduct took place, and for other reasons
set forth here and in the Court’s opinion, I join the Court.
Justice Kennedy, with whom The Chief Justice and
Justice Thomas join, dissenting.
This is an important decision for interpreting the Foreign
Sovereign Immunities Act of 1976 (FSIA or Act), 28 U. S. C.
§ 1602 et seq. As the Court’s careful opinion illustrates, the
case is difficult. In my respectful view, however, its decision
is incorrect.
At the outset, here is a summary of my primary concerns
with the majority opinion: To reach its conclusion the Court
must weaken the reasoning and diminish the force of the rule
against the retroactivity of statutes, a rule of fairness based
on respect for expectations; the Court abruptly tells foreign
nations this important principle of American law is unavail-
able to them in our courts; this is so despite the fact that
treaties and agreements on the subject of expropriation have
been reached against a background of the immunity princi-
ples the Court now rejects; as if to mitigate its harsh result,
the Court adds that the Executive Branch has inherent
power to intervene in cases like this; this, however, is incon-
sistent with the congressional purpose and design of the
FSIA; the suggestion reintroduces, to an even greater de-
gree than before, the same influences the FSIA sought
to eliminate from sovereign immunity determinations; the
Court’s reasoning also implies a problematic answer to a
separation-of-powers question that the case does not present
and that should be avoided; the ultimate effect of the Court’s
inviting foreign nations to pressure the Executive is to risk
inconsistent results for private citizens who sue, based on
changes and nuances in foreign affairs, and to add prospec-
tive instability to the most sensitive area of foreign relations.

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Kennedy, J., dissenting
The majority’s treatment of our retroactivity principles,
its rejection of the considered congressional and Executive
judgment behind the FSIA, and its questionable constitu-
tional implications require this respectful dissent.
I
The FSIA’s passage followed 10 years of academic and leg-
islative effort to establish a consistent framework for the de-
termination of sovereign immunity when foreign nations are
haled into our courts. See H. R. Rep. No. 94–1487, p. 9
(1976) (hereinafter H. R. Rep.). As we explained in Verlin-
den B. V. v. Central Bank of Nigeria, 461 U. S. 480 (1983),
the preceding 30 years had been marked by an emerging or
common-law regime in which courts followed the principles
set out in the letter from Jack B. Tate, Acting Legal Adviser,
U. S. Dept. of State, to Acting U. S. Attorney General Philip
B. Perlman (May 19, 1952), reprinted in 26 Dept. State Bull.
984–985 (1952) (hereinafter Tate Letter or Letter). See
ante, at 689–690. Even after the Tate Letter, however,
courts continued to defer to the Executive’s case-specific
views on whether immunity was due. See Verlinden, supra,
at 487–488. This regime created “considerable uncertainty,”
H. R. Rep., at 9, and a “troublesome” inconsistency in immu-
nity determinations, 461 U. S., at 487. The inconsistency
was the predictable result of changes in administrations and
shifting political pressures. Congress acted to bring order
to this legal uncertainty: “[U]niformity in decision . . . is
desirable since a disparate treatment of cases involving for-
eign governments may have adverse foreign relations conse-
quences.” H. R. Rep., at 13. See also id., at 7 (The “[FSIA]
is urgently needed legislation”). Congress placed even
greater emphasis on the implications that inconsistency had
for our citizens, concluding that the Act was needed to “re-
duc[e] the foreign policy implications of immunity determina-
tions and assur[e] litigants that these often crucial decisions
are made on purely legal grounds and under procedures that
insure due process.” Ibid.

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Kennedy, J., dissenting
There is no dispute that Congress enacted the FSIA to
answer these problems, for the Act’s purpose is codified
along with its governing provisions. See 28 U. S. C. § 1602.
To this end, the Act provides specific principles by which
courts are to decide claims for foreign sovereign immunity.
See ibid. So structured, the Act sought to implement its
objectives by removing the Executive influence from the
standard 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 other
country—where sovereign immunity decisions are made ex-
clusively by the courts and not by a foreign affairs agency”).
II
A
The question is whether the courts, by applying the statu-
tory principles the FSIA announced, will impose a retroac-
tive effect in a case involving conduct that occurred over 50
years ago, and nearly 30 years before the FSIA’s enactment.
It is our general rule not to apply a statute if its application
will impose a retroactive effect on the litigants. See Land-
graf v. USI Film Products, 511 U. S. 244 (1994). This is not
a rule announced for the first time in Landgraf; it is an old
and well-established principle. “It is a principle in the Eng-
lish common law, as ancient as the law itself, that a statute,
even of its omnipotent parliament, is not to have a retrospec-
tive effect.” Dash v. Van Kleeck, 7 Johns. 477, 503 (N. Y.
1811) (Kent, C. J.); see also Landgraf, 511 U. S., at 265
(“[T]he presumption against retroactive legislation is deeply
rooted in our jurisprudence, and embodies a legal doctrine
centuries older than our Republic”). The principle stems
from fundamental fairness concerns. See ibid. (“Elemen-
tary considerations of fairness dictate that individuals should
have an opportunity to know what the law is and to conform
their conduct accordingly; settled expectations should not be
lightly disrupted”).

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Kennedy, J., dissenting
The single acknowledged exception to the rule against ret-
roactivity is when the statute itself, by a clear statement,
requires it. See id., at 264 (“ ‘[C]ongressional enactments
. . . will not be construed to have retroactive effect unless
their language requires this result’ ” (quoting Bowen v.
Georgetown Univ. Hospital, 488 U. S. 204, 208 (1988))).
The FSIA does not meet this exception because it contains
no clear statement requiring retroactive effect. The major-
ity concedes this at the outset of its analysis, saying the text
of the FSIA “falls short of an ‘expres[s] prescri[ption of] the
statute’s proper reach.’ ” Ante, at 694 (alterations in origi-
nal) (quoting Landgraf, supra, at 280).
In an awkward twist, however, the Court also maintains
that the “[Act’s] language is unambiguous,” ante, at 697, and
that it “suggests Congress intended courts to resolve all
[foreign sovereign immunity] claims ‘in conformity with the
principles set forth’ in the Act, regardless of when the under-
lying conduct occurred,” ante, at 697–698. If the statute
were in fact this clear, the exception would apply. Nothing
in our cases suggests that statutory language might be “un-
ambiguous,” yet still “not sufficient to satisfy Landgraf ’s ‘ex-
press command.’ ” Ante, at 697. If the Court really thinks
the statute is unambiguous, it should rest on that premise.
In any event, the Court’s suggestion that the FSIA does
command retroactive application unambiguously is not right.
The Court’s interpretation of § 1602 takes the pertinent
“henceforth” language in isolation. See ante, at 697–698.
When that language instead is read in the context of the full
section, it is quite clear that it does not speak to retroactivity.
The section is as follows:
“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 in-
ternational law, states are not immune from the jurisdic-

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Kennedy, J., dissenting
tion of foreign courts insofar as their commercial activi-
ties are concerned, and their commercial property may
be levied upon for the satisfaction of judgments ren-
dered 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 [statute].”
The first two sentences in § 1602 describe the Act’s intention
to replace the former framework for sovereign immunity de-
terminations with a new court-controlled regime. The third
sentence, which contains the “henceforth” phrase, serves to
make clear that the new regime replaces the old regime from
that point on. Compare § 1602 (“immunity [claims] should
henceforth be decided by [American] courts . . . in conformity
with the [Act’s] principles”) with Webster’s Third New Inter-
national 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 shall gov-
ern all claims, whenever filed, and involving conduct that oc-
curred whenever in time,” the provision would command ret-
roactive application. A statement like this, however, cannot
be found in the FSIA. The statute says only that it must
be applied “henceforth.” That says no more than that the
principles immediately apply from the point of the Act’s ef-
fective date on, the same type of command that Landgraf
rejected as grounds for an express command of retroactive
application. Cf. 511 U. S., at 257 (analyzing a statutory pro-
vision that provided it was to “ ‘take effect upon enact-
ment’ ”). As Justice Stevens noted for the Court in that
case: “A statement that a statute will become effective on
a certain date does not even arguably suggest that it has
any application to conduct that occurred at an earlier date.”
Ibid.

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720 REPUBLIC OF AUSTRIA v. ALTMANN
Kennedy, J., dissenting
In order for the term “henceforth” to command retroactiv-
ity, it would have to be accompanied by reference to specific
proceedings or claims (i. e., specific as to when they were
commenced, if they are pending, or when they were deter-
mined). To confirm this one need only compare the FSIA’s
isolated use of the term “henceforth” to those statutory pro-
visions that have been interpreted to require retroactive ef-
fect. See, e. g., Carpenter v. Wabash R. Co., 309 U. S. 23, 27
(1940) (“The statute applies to ‘equity receiverships of rail-
road corporations now . . . pending in any court of the United
States’ ”); Freeborn v. Smith, 2 Wall. 160, 162 (1865) (“ ‘all
cases of appeal . . . heretofore prosecuted and now pending
in the Supreme Court of the United States . . . may be heard
and determined by the Supreme Court of the United
States’ ”). See also Landgraf, 511 U. S., at 255–256 (explain-
ing that before the FSIA was enacted, another bill was
passed by Congress but vetoed by the President with “lan-
guage expressly calling for [retroactive] application of many
of its provisions”); id., at 255, n. 8 (citing the following exam-
ple of a provision containing an express command for retro-
active applications: “ ‘[These] sections . . . shall apply to all
proceedings pending on or commenced after the date of the
enactment of this Act’ ”). On its own, “henceforth” does not
speak with the precision and clarity necessary to command
retroactivity.
Justice Breyer’s suggestion that Congress’ intention as
to retroactivity can be measured by the fact that the FSIA
does not bear the same language as some other statutes and
conventions Congress has authored does not change the anal-
ysis. See ante, at 708 (concurring opinion). To accept that
interpretive approach is to abandon our usual insistence on
a clear statement.
B
Because the FSIA does not exempt itself from the usual
rule against retroactivity with a clear statement, our cases
require that we consider the character of the statute, and of

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721 Cite as: 541 U. S. 677 (2004)
Kennedy, J., dissenting
the rights and liabilities it creates, to determine if its appli-
cation will impose retroactive effect on the parties. See
Landgraf, 511 U. S., at 280 (“When . . . the statute con-
tains no such express command, the court must determine
whether the new statute would have retroactive effect, i. e.,
whether it would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose
new duties with respect to transactions already completed”).
If it does, we must refuse to apply it in that manner. Ibid.
The essential character of the FSIA is jurisdictional. The
conclusion that it allows (or denies) jurisdiction follows from
the language of the statute. See § 1602 (the Act involves
“the determination by United States courts of the claims of
foreign states to immunity from the jurisdiction of such
courts”). By denying immunity in certain classes of cases—
those in the Act’s succeeding provisions—the FSIA, in effect,
grants jurisdiction over those disputes. The Court as much
as admits all this, saying that “the FSIA . . . opens United
States courts to plaintiffs with pre-existing claims against
foreign states.” Ante, at 695.
The statute’s mechanism of establishing jurisdictional ef-
fects (i. e., either allowing jurisdiction or denying it) has im-
portant implications for the retroactivity question. On the
one hand, jurisdictional statutes, as a class, tend not to im-
pose retroactive effect. As the Court explained in Land-
graf: “Application of a new jurisdictional rule usually ‘takes
away no substantive right but simply changes the tribunal
that is to hear the case.’ Present law normally governs in
such situations because jurisdictional statutes ‘speak to the
power of the court rather than to the rights or obligations of
the parties.’ ” 511 U. S., at 274 (citations omitted).
On the other hand, there is a subclass of statutes that,
though jurisdictional, do impose retroactive effect. These
are statutes that confer jurisdiction where before there was
none. That is, they altogether create jurisdiction. We ex-
plained the distinction in a unanimous opinion in Hughes

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Kennedy, J., dissenting
Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939,
951 (1997) (citations omitted):
“Statutes merely addressing which court shall have ju-
risdiction to entertain a particular cause of action can
fairly be said merely to regulate the secondary conduct
of litigation and not the underlying primary conduct of
the parties. Such statutes affect only where a suit may
be brought, not whether it may be brought at all. The
1986 amendment, however, does not merely allocate ju-
risdiction among forums. Rather, it creates jurisdiction
where none previously existed; it thus speaks not just
to the power of a particular court but to the substantive
rights of the parties as well. Such a statute, even
though phrased in ‘jurisdictional’ terms, is as much sub-
ject to our presumption against retroactivity as any
other.”
The principles of Hughes Aircraft establish that retroac-
tivity analysis of a jurisdictional statute is incomplete unless
it asks whether the provision confers jurisdiction where
there was none before. Again, this is common ground be-
tween the majority and this dissent. The majority recog-
nizes the import of Hughes Aircraft’s holding and affirms
that courts may not apply statutes that confer jurisdiction
over a cause of action for which no jurisdiction existed when
the sued-upon conduct occurred. “Such statutes,” the ma-
jority acknowledges, “ ‘even though phrased in “jurisdic-
tional” terms, [are] as much subject to our presumption
against retroactivity as any other[s].’ ” Ante, at 695 (alter-
ations in original) (quoting Hughes Aircraft, supra, at 951).
If the FSIA creates new jurisdiction, Hughes Aircraft con-
trols and instructs us not to apply it to cases involving pre-
enactment conduct. On the other hand, if the FSIA did not
create new jurisdiction—including where it in fact stripped
previously existing jurisdiction from the courts—we may
apply its statutory terms without fear of working any retro-

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Kennedy, J., dissenting
active effect. See Lindh v. Murphy, 521 U. S. 320, 342–343,
n. 3 (1997) (Rehnquist, C. J., joined by Scalia, Kennedy,
and Thomas, JJ., dissenting) (“Although in Hughes Aircraft
we recently rejected a presumption favoring retroactivity
for jurisdiction-creating statutes, nothing in Hughes dispar-
aged our longstanding practice of applying jurisdiction-
ousting statutes to pending cases” (citation omitted)).
C
To this point, then, I am in agreement with the Court on
certain relevant points—the FSIA does not contain a clear
retroactivity command; the statute is jurisdictional in na-
ture; and jurisdictional statutes impose retroactive effect
when they confer jurisdiction where none before existed.
Now, however, our paths diverge. For though the majority
concedes these critical issues, it does not address the ques-
tion to which they lead: Does the FSIA confer jurisdiction
where before there was none? Rather than asking that ob-
vious question, the Court retreats to non sequitur. After
this recitation of the Hughes Aircraft rule and with no causal
reasoning from it, the Court concludes: “Thus, Landgraf ’s
default rule does not definitively resolve this case.” Ante,
at 696. It requires a few steps to undertake the analysis
the Court omits, but in the end the proper conclusion is that,
assuming the court on remand found immunity existed under
the pre-FSIA regime, the statute does create jurisdiction
where there was none before.
The analysis begins with 1948, when the conduct occurred.
See INS v. St. Cyr, 533 U. S. 289, 321 (2001) (“[T]he judgment
whether a particular statute acts retroactively ‘should be
informed and guided by “familiar considerations of fair no-
tice, reasonable reliance, and settled expectations” ’ ” (quot-
ing Martin v. Hadix, 527 U. S. 343, 358 (1999), in turn quot-
ing Landgraf, supra, at 270)). The parties’ expectations
were then formed by an emerging or common-law frame-

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Kennedy, J., dissenting
work governing claims of foreign sovereign immunity in
American courts.
Parties in 1948 would have expected courts to apply this
general 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 “cre-
ated” (if one subscribes to Holmes’) in the intervening time
between the party’s conduct and its being subject to suit.
Compare 1 W. Blackstone, Commentaries *68 (“[T]he only
method of proving, that this or that maxim is a rule of the
common law, is by shewing that it hath been always the cus-
tom to observe it”), with Holmes, The Path of the Law, 10
Harv. L. Rev. 457, 466 (1897) (“Behind the logical form [of
common-law decisionmaking] lies a judgment as to the rela-
tive worth and importance of competing legislative grounds,
often an inarticulate and unconscious judgment, it is true,
and yet the very root and nerve of the whole proceeding”).
To conduct the analysis, then, we should ask how the juris-
dictional effects the FSIA creates compare to those that
would govern were the prior regime still in force.
There is little dispute that in 1948 foreign sovereigns, and
all other litigants, understood foreign sovereign immunity
law to support three valid expectations. (1) Nations could
expect that a baseline rule of sovereign immunity would
apply. (2) They could expect that if the Executive made a
statement on the issue of sovereign immunity that would be
controlling. And (3), they could expect that they would be
able to petition the Executive for intervention on their be-
half. See National City Bank of N. Y. v. Republic of China,
348 U. S. 356, 358–361 (1955) (summing up the Court’s ap-
proach to sovereign immunity questions); id., at 366–368
(Reed, J., dissenting) (summing up the same principles).
These three expectations were little different in 1976, be-
fore the FSIA was passed. The Tate Letter did announce
the policy of restrictive foreign sovereign immunity, and this
was an important doctrinal development. The policy, how-

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Kennedy, J., dissenting
ever, was within the second expectation that the Executive
could shape the framework for foreign sovereign immunity.
Under the second category, a foreign sovereign would have
expected its immunity to be controlled 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 under-
stand both the operation of the general law of foreign rela-
tions and the expectations it built. After the Tate Letter’s
issuance, the Executive evaluated suits involving pre-Tate
Letter conduct under the Letter’s new standard when deter-
mining whether to submit suggestions of immunity to the
courts. The Court, likewise, seems to have understood the
Tate Letter to require this sort of application. In National
City Bank of N. Y., the Court suggested that the Letter gov-
erned in a case involving pre-1952 conduct, though careful
consideration of the question was unnecessary there. 348
U. S., at 361.
The governing weight the Tate Letter had as a statement
of Executive policy does not detract from the third expecta-
tion foreign sovereigns continued to have—that they could
petition the Executive for case-specific statements. Thus,
in National City Bank of N. Y. the Court took note that the
Government had not submitted a case-specific suggestion as
to immunity. See id., at 364 (“[O]ur State Department nei-
ther has been asked nor has it given the slightest intimation
that in its judgment allowance of counterclaims in such a
situation would embarrass friendly relations with the Repub-
lic of China”).
Today, to measure a foreign sovereign’s expectation of lia-
bility for conduct committed in 1948, the Court should apply
the three discussed, interlocking principles of law, which the
parties then expected. The Court of Appeals did not ad-
dress the question in this necessary manner. Rather than
determining how the jurisdictional result produced by the
FSIA differs from the result a court would reach if it applied
the legal principles that governed before the enactment of

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Kennedy, J., dissenting
the FSIA, the court instead asked what the Executive would
have done in 1948. See 317 F. 3d 954, 965 (CA9 2002) (“De-
termining whether the FSIA may properly be applied thus
turns on the question whether Austria could legitimately ex-
pect to receive immunity from the executive branch of the
United States”). That is not the appropriate way to meas-
ure Austria’s expectations. It is an unmanageable inquiry;
and it usurps the authority the Executive, as it is constituted
today, has under the pre-FSIA regime. In essence, the
Court of Appeals wrongly assumed responsibility for the po-
litical question, rather than confining its judgment to the
legal one.
Answering the legal question, in contrast, requires apply-
ing the principles noted above: We assume a baseline of sov-
ereign immunity and then look to see if there is any Ex-
ecutive statement on the sovereign immunity issue that
displaces the presumption of immunity. There is, of course,
at least one Executive statement on the issue that displaces
the immunity presumption to some degree. It is the Tate
Letter itself. By the Tate Letter the Executive established,
as a general rule, that the doctrine of restrictive sovereign
immunity would be followed. In general, the doctrine pro-
vided immunity for suits involving public acts and denied it
for suits involving commercial or private acts. 26 Dept.
State Bull., at 984. These principles control, as the Execu-
tive has taken no case-specific position in the instant matter.
If petitioners’ conduct would not be subject to suit under
the Tate Letter principles, the FSIA cannot alter that result
without imposing retroactive effect, creating new jurisdic-
tion in American courts.
Petitioners and the United States, appearing as amicus
curiae, argue that the Tate Letter doctrine would grant im-
munity (i. e., deny jurisdiction) for suits involving expropria-
tion. They say the Tate Letter rules contain no principle
that parallels § 1605(a)(3), the FSIA’s expropriation excep-
tion on which respondent relies to establish jurisdiction:

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Kennedy, J., dissenting
“The expropriation exception . . . was a new develop-
ment in the doctrine of sovereign immunity when the
FSIA 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 states
continued to enjoy immunity with respect to . . . suits
respecting the ‘nationalization’ of property.” Brief for
United States as Amicus Curiae 12.
This argument may be correct in the end; but, it should be
noted, the petitioners’ reliance on Victory Transport Inc. v.
Comisaria General, 336 F. 2d 354 (CA2 1964), is not conclu-
sive. Victory Transport does not say that nationalizations
of property are per se exempt under the restrictive theory of
sovereign immunity. The Court of Appeals for the Second
Circuit said:
“The purpose of the restrictive theory of sovereign im-
munity is to try to accommodate the interest of individu-
als doing business with foreign governments in having
their legal rights determined by the courts, with the in-
terest of foreign governments in being free to perform
certain political acts without undergoing the embarrass-
ment or hindrance of defending the propriety of such
acts before foreign courts. . . . Such [immune] acts are
generally limited to the following categories:
. . . . .
“(2) legislative acts, such as nationalization.” Id., at
at 360 (citations omitted).
As the court’s language makes clear, the pertinent category
of exempt action is legislative action, of which nationaliza-
tion was but one example. The expropriation alleged in this
case was not a legislative act.
Petitioners can still prevail by showing that there would
have been no jurisdiction under the pre-FSIA governing

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Kennedy, J., dissenting
principles. That could be established by showing that the
conduct at issue was considered a public act under those
principles and that the principles contain no expropriation
exception similar to that codified in § 1605(a)(3), which would
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 has yet addressed
it. The issue is complex and would benefit from more spe-
cific briefing, arguments, and consideration of the interna-
tional law sources bearing upon the scope of immunity the
Tate Letter announced. I would vacate the judgment of the
Court of Appeals and remand for further proceedings to con-
sider the question.
D
By declaring that this statute is not subject to the usual
presumption against retroactivity, and so avoiding the criti-
cal issue in this case, the Court puts the force and the valid-
ity of our precedent in Hughes Aircraft into serious ques-
tion. The Court, in rejecting the usual analysis, states
three rationales to justify its approach. The arguments nei-
ther distinguish this case from Hughes Aircraft nor suffice
to explain rejecting the rule against retroactivity.
The Court suggests the retroactivity analysis should not
apply because the rights at issue are not private rights. See
ante, at 696 (“[The] antiretroactivity presumption, while not
strictly confined to cases involving private rights, is most
helpful in that context”). This is unconvincing. First, the
language from Landgraf on which the Court relies undercuts
its position. It confirms, in clear terms, that retroactivity
presumptions work equally in favor of governments. Per
Justice Stevens, the Court said:
“While the great majority of our decisions relying upon
the antiretroactivity presumption have involved inter-
vening statutes burdening private parties, we have ap-
plied the presumption in cases involving new monetary

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Kennedy, J., dissenting
obligations that fell only on the government.” 511
U. S., at 271, n. 25.
Even if Landgraf ’s reference to private rights could be
read to establish that retroactivity analysis does not strictly
protect government—and I do not see how that is possible in
light of the above-quoted language—the Landgraf passage
refers to the Federal Government. If the distinction mat-
tered for retroactivity purposes, presumably it would have
been on the basis that Congress, by virtue of authoring the
legislation, is itself fully capable of protecting the Federal
Government from having its rights degraded by retroactive
laws. Private parties, it might be said, do not have the same
built-in assurance. Here, of course, the Federal Govern-
ment is not a party; instead a foreign government is. For-
eign governments are as vulnerable as private parties to the
disruption caused by retroactive laws. Indeed, foreign sov-
ereigns may have less recourse than private parties to pre-
vent or remedy retroactive legislation, since they cannot
hold Congress responsible through the election process.
The Court’s private-rights argument, therefore, does not
sustain its departure from our usual presumption against
retroactivity.
The majority tries to justify departing from our usual
principles in a second way. It argues that the purposes of
foreign sovereign immunity are not concerned with allowing
“foreign states and their instrumentalities to shape their
conduct in reliance on the promise of future immunity.”
Ante, at 696. Justice Breyer takes the suggestion fur-
ther. He argues not that foreign sovereign immunity doc-
trine is not concerned with reliance interests but, even fur-
ther, that in fact foreign sovereigns have no reliance
interests in receiving immunity in our courts. See ante, at
709–711. This reasoning overlooks the plain fact that there
are reliance interests of vast importance involved, interests
surely as important as those stemming from contract rights
between two private parties. As the Executive has made

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clear to us, these interests span a range of time after the
conduct, even up to the present day. See Brief for United
States as Amicus Curiae 8. For example, at stake may be
pertinent treaty rights and international agreements in-
tended to remedy the earlier conduct. These are matters
in which the negotiating parties may have acted on a likely
assumption of sovereign immunity, as defined and limited by
pre-FSIA expectations: “[The] conduct at issue [has been]
extensively addressed through treaties, agreements, and
separate legislation that were all adopted against the back-
ground assumption [of the pre-FSIA foreign sovereign im-
munity regime].” Ibid. Lurking in the Court’s and Jus-
tice Breyer’s contrary suggestions is the implication that
the expectations of foreign powers are minor or infrequent.
Surely that is not the case. By today’s decision the Court
opens foreign nations worldwide to vast and potential liabil-
ity for expropriation claims in regards to conduct that oc-
curred generations ago, including claims that have been the
subject of international negotiation and agreement. There
are, then, reliance interests of magnitude, which support the
usual presumption against retroactivity.
In addition, the statement that the purposes of foreign
sovereign immunity have not much to do with the presump-
tion against retroactivity carries little weight; the presump-
tion against retroactivity has independent justification. The
Court has noted this, saying that the purposes of the under-
lying substantive law are not conclusive of the retroactivity
analysis. “It will frequently be true . . . that retroactive
application of a new statute would vindicate its purpose more
fully. That consideration, however, is not sufficient to rebut
the presumption.” Landgraf, 511 U. S., at 285–286. As a
result, diminished concerns of unfair surprise and upset ex-
pectations—even assuming they existed—do not displace the
usual presumption. That is why in Landgraf, though “con-
cerns of unfair surprise and upsetting expectations [were]
attenuated in the case of intentional employment discrimina-

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Kennedy, J., dissenting
tion, which ha[d] been unlawful for more than a generation,”
the Court concluded, nevertheless, that it could not give the
statute retroactive effect. Id., at 282–283, n. 35.
The Court, lastly, adds in a footnote that the “FSIA differs
from the statutory amendment at issue in Hughes Aircraft”
because in Hughes Aircraft the jurisdictional limitation
attached directly to the cause of action and so ensured that
suit could be brought only in accordance with the jurisdic-
tional provision (and any changes to it). Ante, at 695, n. 15.
With the FSIA, in contrast, the jurisdictional limitation is
not attached to the cause of action. The result, the Court
implies, is that even if a pre-FSIA jurisdictional bar applied
in American courts, suit on the California cause of action
might still have been able to have been brought in foreign
courts, and such availability of suit would defeat retroactiv-
ity concerns. Ante, at 695–696, n. 15 (“The Act does not . . .
purport to limit foreign countries’ decisions about what
claims against which defendants their courts will entertain”);
see also ante, at 703 (Scalia, J., concurring). What is of
concern in the retroactivity analysis that Hughes Aircraft
sets out, however, is the internal integrity of American stat-
utes, not of whether an American law allows suit where be-
fore none was allowed elsewhere in the world. This is un-
surprising, as the task of canvassing what causes of action
foreign countries might have allowed before a new jurisdic-
tional regime made such suits also viable in American courts
would be a most difficult task to assign American courts.
In the end, the majority turns away from our usual retro-
activity analysis because “this [is a] sui generis context.”
Ante, at 696. Having created a new, extra exception that
frees it from the usual analysis, it can conclude simply that
the usual rule “does not control the outcome in this case.”
Ante, at 692. The implications of this holding are not en-
tirely clear, for the new exception does not rest on any ap-
parent principle.

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732 REPUBLIC OF AUSTRIA v. ALTMANN
Kennedy, J., dissenting
There is a stark contrast between the Court’s analysis and
that of the Courts of Appeals that have addressed the ques-
tion. In this case the Court of Appeals for the Ninth Cir-
cuit, like every other Court of Appeals to have considered
the question, concluded that the FSIA must be interpreted
under the usual retroactivity principles, just like any other
statute. See 317 F. 3d 954. Accord, Hwang Geum Joo v.
Japan, 332 F. 3d 679 (CADC 2003); Carl Marks & Co. v.
Union of Soviet Socialist Republics, 841 F. 2d 26 (CA2 1988)
(per curiam); Jackson v. People’s Republic of China, 794
F. 2d 1490 (CA11 1986).
The conclusion to which the sui generis rule leads the
Court shows the rule lacks a principled basis: “[W]e think it
more appropriate, absent contraindications, to defer to the
most recent [decision by the political branches on the foreign
sovereign immunity question]—namely, the FSIA.” Ante,
at 696. The question, however, is not whether the FSIA
governs, but how to interpret the FSIA. The Court seems
to think the FSIA implicitly adopts a presumption of retroac-
tivity, though our cases instruct just the opposite. “[I]n
Hughes Aircraft . . . we . . . rejected a presumption favoring
retroactivity for jurisdiction-creating statutes.” Lindh, 521
U. S., at 342, n. 3 (Rehnquist, C. J., joined by Scalia, Ken-
nedy, and Thomas, JJ., dissenting).
Justice Breyer would supplement the rationale for the
Court’s deciding the case outside the bounds of our usual
mode of retroactivity analysis. He says the Court can take
this path because sovereign immunity “is about a defendant’s
status at the time of suit, not about a defendant’s conduct
before the suit.” Ante, at 708. The argument is a variant
of that made by respondent. See Brief for Respondent 27
(“Dole Food controls the result in this case”). Respondent’s
argument fails, of course, because in this case the defendants’
status at the time of suit is that of the sovereign, not that
of private parties. That distinction alone makes misplaced
reliance on Dole Food Co. v. Patrickson, 538 U. S. 468 (2003)

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Kennedy, J., dissenting
(holding that a now-private corporation could not assert sov-
ereign immunity in a suit involving events that occurred
when the entity was owned by a foreign sovereign). Jus-
tice Breyer’s further reasoning, however, is also unaccept-
able. When jurisdictional rules are at stake, status and con-
duct factors will at times intersect. Most assuredly, we
would not disown the usual retroactivity principles in a case
involving a status-based jurisdictional statute that creates
jurisdiction over private litigants where before there was
none simply because the creation of jurisdiction turned in
part on the status of one of the litigants. Justice Breyer’s
additional rationale, however, has this very implication.
We should not ignore the statutory retroactivity analysis
just because the parties and the Court have failed to consider
it before. See ante, at 710 (Breyer, J., concurring) (relying
on the fact that in Verlinden the Court applied the FSIA to
a contract that predated the Act). “ ‘[T]his Court has never
considered itself bound [by prior sub silentio holdings] when
a subsequent case finally brings the jurisdictional issue be-
fore us.’ Hagans v. Lavine, 415 U. S. 528, 535, n. 5 (1974).”
Will v. Michigan Dept. of State Police, 491 U. S. 58, 63, n. 4
(1989) (alteration in original). Reliance on the fact that the
immunity principles were applied retroactively in the
common-law context of the pre-FSIA regime is also irrele-
vant. See ante, at 709–710 (Breyer, J., concurring). This
case concerns the retroactive effect of enacted statutory law,
not of court decisions interpreting the common law.
III
Today’s decision contains another proposition difficult to
justify and that itself does considerable damage to the FSIA.
Abandoning standard retroactivity principles, the Court at-
tempts to compensate for the harsh results it reaches by
inviting case-by-case intervention by the Executive. This
does serious harm to the constitutional balance between the
political branches.

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Kennedy, J., dissenting
The Court says that the Executive may make suggestions
of immunity regarding FSIA determinations and implies
that courts should give such suggestions deference. See
ante, at 702 (“[S]hould the State Department choose to ex-
press its opinion on the implications of exercising jurisdiction
over particular petitioners in connection with their alleged
conduct, that opinion might well be entitled to deference as
the considered judgment of the Executive” (footnote omit-
ted)). That invitation would be justified if the Court recog-
nized that the Executive’s role was retrospective only, i. e.,
implicated only in suits involving preenactment conduct and
only as a means for resolving the retroactivity analysis.
The law that governed before the FSIA’s enactment allowed
unilateral Executive authority in that regard. The Court’s
rejection of the Landgraf analysis, however, removes the
possibility of that being the basis for the invitation.
The Court instead reaches its conclusion about the Execu-
tive’s role by reliance on the general constitutional principle
that the Executive has a “ ‘ “vast share of responsibility for
the conduct of our foreign relations.” ’ ” Ante, at 702 (quot-
ing American Ins. Assn. v. Garamendi, 539 U. S. 396, 414
(2003)). This prospective constitutional conclusion, which
the Court offers almost as an aside, has fundamental impli-
cations for the future of the statute and raises serious
separation-of-powers concerns.
The question the Court seems inclined to resolve—can the
foreign affairs power of the Executive supersede a statutory
scheme set forth by Congress—is simply not presented by
the facts of this case. We would confront the question only
if the case involved postenactment conduct and if the Exec-
utive had filed a suggestion of immunity, which, by its in-
sistence, superseded the statute’s directive. Those circum-
stances 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 H. R. Rep., at 12 (setting
out the constitutional authority on which Congress relied to

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735 Cite as: 541 U. S. 677 (2004)
Kennedy, J., dissenting
enact the FSIA). See generally International Bancorp,
LLC v. Societe des Bains de Mer 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 for-
eign affairs responsibilities overlap, in a case involving for-
eign trade). The separation-of-powers principles at stake
also implicate judicial independence, which is compromised
by case-by-case, selective determinations of jurisdiction by
the Executive.
The Court makes a serious mistake, in my view, to address
the question when it is not presented. It magnifies this
error by proceeding with so little explanation, particularly
in light of the strong arguments against its conclusion. The
Solicitor General, on behalf of the Executive, agrees that the
statute “presents the sole basis for civil litigants to obtain
jurisdiction over a foreign state in United States courts.”
Brief for United States as Amicus Curiae 1. This under-
standing is supported by the lack of textual support for the
contrary position in the Act and by the majority’s own as-
sessment of the Act’s purposes.
The Court’s abrupt announcement that the FSIA may well
be subject to Executive override undermines the Act’s cen-
tral purpose and structure. As the Court acknowledges, be-
fore the Act, “immunity determinations [had been thrown]
into some disarray, as ‘foreign nations often placed diplo-
matic pressure on the State Department,’ and political con-
siderations sometimes led the Department to file ‘sugges-
tions of immunity in cases where immunity would not have
been available under the restrictive theory.’ ” Ante, at 690
(quoting Verlinden, 461 U. S., at 487). See also supra, at
716–717. Congress intended the FSIA to replace this old
and unsatisfactory methodology of Executive decision-
making. Ibid. The President endorsed the objective in
full, recommending the bill upon its introduction in Con-
gress, H. R. Rep., at 6, and signing the bill into law upon its
presentment. The majority’s surprising constitutional con-

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clusion suggests that the FSIA accomplished none of these
aims. The Court states that the statute’s directives may
well be short circuited by the sole directive of the Executive.
The Court adds a disclaimer that it “express[es] no opinion
on the question whether such deference should be granted
[to the Executive] in cases covered by the FSIA.” Ante,
at 702. The disclaimer, however, is inadequate to remedy
the harm done by the invitation, for it is belied by the
Court’s own terms: Executive statements “suggesting that
courts decline to exercise jurisdiction in particular cases im-
plicating foreign sovereign immunity . . . might well be enti-
tled to deference as the considered judgment of the Execu-
tive on a particular question of foreign policy.” Ante, at
701–702 (citing as an example a case in which Executive for-
eign policy superseded state law). Taking what the Court
says at face value, the Court does express an opinion on the
question: Its opinion is that the Executive statement may
well be entitled to deference, and so may well supersede fed-
eral law that gives courts jurisdiction.
If, as it seems, the Court seeks to free the Executive from
the dictates of enacted law because it fears that to do other-
wise would consign some litigants to an unfair retroactive
application of the law, it adds illogic to the illogic of its own
creation. Only application of our traditional analysis guards
properly against unfair retroactive effect, “ensur[ing] that
Congress itself has determined that the benefits of retroac-
tivity outweigh the potential for disruption or unfairness.”
Landgraf, 511 U. S., at 268.
Where postenactment conduct is at stake, the majority’s
approach promises unfortunate disruption. It promises to
reintroduce Executive intervention in foreign sovereign im-
munity determinations to an even greater degree than ex-
isted before the FSIA’s enactment. Before the Act, foreign
nations only tended to need the Executive’s protection from
the courts’ jurisdiction in instances involving private acts.
The Tate Letter ensured their public acts would remain im-

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Kennedy, J., dissenting
mune from suit, even without Executive intervention. Now,
there is a potential for Executive intervention in a much
larger universe of claims. The FSIA has no public act/pri-
vate act distinction with respect to certain categories of con-
duct, such as expropriations. Foreign nations now have in-
centive to seek Executive override of the Act’s jurisdictional
rules for both public and private acts in those categories of
cases.
With the FSIA, Congress tried to settle foreign sover-
eigns’ prospective expectations for being subject to suit in
American courts and to ensure fair and evenhanded treat-
ment to our citizens who have claims against foreign sover-
eigns. See supra, at 716–717. This was in keeping with
strengthening the Executive’s ability to secure negotiated
agreements with foreign nations against whom our citizens
may have claims. Over time, agreements of this sort have
been an important tool for the Executive. See, e. g., Agree-
ment Relating to the Agreement of Oct. 24, 2000, Concerning
the Austrian Fund “Reconciliation, Peace and Cooperation,”
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 prospective application of our for-
eign sovereign immunity law may weaken the Executive’s
ability to secure such agreements by compromising foreign
sovereigns’ ability to predict the liability they face in our
courts and so to assess the ultimate costs and benefits of any
agreement. See supra, at 729–730 (citing Brief for United
States as Amicus Curiae).
* * *
The presumption against retroactivity has comprehended,
and always has been intended to comprehend, the wide uni-
verse of cases that a court might confront. That includes

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Kennedy, J., dissenting
this one. The Court’s departure from precedent should not
be overlooked. It has disregarded our “widely held intu-
itions about how statutes ordinarily operate,” Landgraf,
supra, at 272, and treated the principles discussed in Land-
graf as if they describe a limited and precise rule that courts
should apply only in particularized contexts. Our unani-
mous rejection of this approach in Hughes Aircraft applies
here as well:
“To the extent [the Court] contends that only statutes
with one of [Landgraf ’s particularly stated] effects are
subject to our presumption against retroactivity, [it]
simply misreads our opinion in Landgraf. The lan-
guage upon which [it] relies does not purport to define
the outer limit of impermissible retroactivity. Rather,
our opinion in Landgraf, like that of Justice Story,
merely described that any such effect constituted a
sufficient, rather than a necessary, condition for invok-
ing the presumption against retroactivity.” 520 U. S.,
at 947.
The Court’s approach further leads to the unprecedented
conclusion that Congress’ Article I power might well be in-
sufficient to accomplish the central objective of the FSIA.
The Court, in addition, injects great prospective uncertainty
into our relations with foreign sovereigns. Application of
our usual presumption against imposing retroactive effect
would leave powerful precedent intact and avoid these
difficulties.
With respect, I dissent.