Cite as: 546 U. S. ____ (2006) 1
Per Curiam
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SUPREME COURT OF THE UNITED STATES
MINISTRY OF DEFENSE AND SUPPORT FOR THE
ARMED FORCES OF THE ISLAMIC REPUBLIC
OF IRAN v. DARIUSH ELAHI
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 04–1095. Decided February 21, 2006
PER CURIAM.
A private citizen seeks to attach an asset belonging to
Iran’s Ministry of Defense in order to help satisfy a judg-
ment for money damages. The question raised is whether
the Foreign Sovereign Immunities Act of 1976 (FSIA or
Act), 28 U. S. C. §1602 et seq. (2000 ed. and Supp. III),
forbids that attachment.
The judgment for money damages consists of a default
judgment against the Islamic Republic of Iran (for about
$300 million) that the private citizen, Dariush Elahi,
obtained in a federal-court lawsuit claiming that the
Republic had murdered his brother. Elahi v. Islamic
Republic of Iran, 124 F. Supp. 2d 97, 103 (DC 2000). The
asset is an arbitration award (against a third party),
which Iran’s Ministry of Defense obtained in Switzerland.
Ministry of Defense and Support for Armed Forces of Is-
lamic Republic of Iran v. Cubic Defense Systems, Inc., 385
F. 3d 1206, 1211 (CA9 2004). The Ministry asked the
Federal District Court for the Southern District of Califor-
nia to confirm the award. Ministry of Defense and Support
for Armed Forces of Islamic Republic of Iran v. Cubic
Defense Systems, Inc., 236 F. Supp. 2d 1140 (2002). The
court did so. And Elahi then intervened, seeking to im-
2 MINISTRY OF DEFENSE AND SUPPORT FOR ARMED
FORCES OF ISLAMIC REPUBLIC OF IRAN v. ELAHI
Per Curiam
pose a lien upon the award. The Ministry opposed the
attachment on the ground that the Act grants it immunity
from such a claim.
The Federal District Court rejected the Ministry’s im-
munity defense on the ground that, by suing to enforce the
award, the Ministry had waived any such immunity. On
appeal the Ninth Circuit disagreed with the District Court
about waiver. But it then found against the Ministry on a
different ground—a ground that the parties had not ar-
gued. The Act says that under certain conditions the
property of an “agency or instrumentality” of a foreign
government is “not . . . immune from attachment” if the
agency is “engaged in commercial activity in the United
States.” 28 U. S. C. §1610(b) (emphasis added). The
Court of Appeals found that the Ministry engages in com-
mercial activity and that the other conditions were satis-
fied. 385 F. 3d, at 1219–1222 (applying §1610(b)(2)). And
it held that this section of the Act barred the Ministry’s
assertion of immunity. Ibid.
The Ministry filed a petition for certiorari asking us to
review that decision. The Solicitor General agrees with
the Ministry that we should grant the writ but limited to
the Ministry’s Question 1, namely whether “the property
of a foreign state stricto sensu, situated in the United
States” is “immune from attachment . . . as provided in the
Foreign Sovereign Immunities Act.” Pet. for Cert. i (citing
§§1603(a), 1610(a)). The Solicitor General also asks us to
vacate the judgment of the Court of Appeals and remand
the case for consideration of whether the Ministry is sim-
ply a “foreign state” (what the Ministry calls “a foreign
state stricto sensu”) or whether the Ministry is an “agency
or instrumentality” of a foreign state (as the Ninth Circuit
held). Brief for United States as Amicus Curiae 15–17.
We grant the writ limited to Question 1.
The Act, as it applies to the “property in the United
States of a foreign state,” §1610(a) (emphasis added), does
Cite as: 546 U. S. ____ (2006) 3
Per Curiam
not contain the “engaged in commercial activity” exception
that the Ninth Circuit described. That exception applies
only where the property at issue is property of an “agency
or instrumentality” of a foreign state. Compare §1610(b)
(“property . . . of an agency or instrumentality of a foreign
state engaged in commercial activity”) with §1610(a)
(“property . . . of a foreign state used for a commercial
activity”) (emphasis added). The difference is critical.
Moreover, in the Solicitor General’s view a defense minis-
try (unlike, say, a government-owned commercial enter-
prise) generally is not an “agency or instrumentality” of a
foreign state but an inseparable part of the state itself.
Brief for United States as Amicus Curiae 8–11; see also
Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F. 3d
148, 153 (CADC 1994) (“hold[ing] that armed forces are as
a rule so closely bound up with the structure of the state
that they must in all cases be considered as the ‘foreign
state’ itself, rather than a separate ‘agency or instrumen-
tality’ of the state”).
We shall not now determine whether the Solicitor Gen-
eral is correct about the status of the Ministry, for the
Ninth Circuit did not address the question nor did the
parties argue the matter before the Circuit. Neither can
we fault the Ministry for that failure. As we said, supra,
at 1, the District Court based its denial of immunity upon
waiver. The parties’ Ninth Circuit briefs focused on mat-
ters not relevant here (such as the waiver question), with
one exception. The exception consists of a footnote in
Elahi’s brief mentioning the Act’s “agency and instrumen-
tality” provision. That footnote, however, does not ask for
affirmance on that basis; nor did it provide the Ministry
with clear notice that a reply was necessary. Answering
Brief of Appellee in No. 03–55015 (CA9), p. 45, n. 27 (stat-
ing that “[i]f [the Ministry] is considered ‘an agency or
instrumentality of a foreign state,’ rather than the foreign
state itself, Mr. Elahi’s attachment still is valid” (empha-
4 MINISTRY OF DEFENSE AND SUPPORT FOR ARMED
FORCES OF ISLAMIC REPUBLIC OF IRAN v. ELAHI
Per Curiam
sis added)).
The Ninth Circuit said that it was free to affirm on “any
ground supported by the record.” 385 F. 3d, at 1219, n. 15.
But the court did not explain what in the record might
demonstrate that the Ministry is an “agency or instrumen-
tality” of the state rather than an integral part of the state
itself. The court noted that “Elahi appears to concede”
that the Ministry is an “agency and instrumentality,” id.,
at 1218, n. 13, but any relevant concession would have to
have come from the Ministry, not from Elahi, whose posi-
tion the concession favors. Thus, in implicitly concluding
that the Ministry was an “agency or instrumentality” of
the Republic of Iran within the meaning of §1610(b), the
Ninth Circuit either mistakenly relied on a concession by
respondent that could not possibly bind petitioner, or else
erroneously presumed that there was no relevant distinc-
tion between a foreign state and its agencies or instru-
mentalities for purposes of that subsection. See §1603(a),
(b). Either way, the Ninth Circuit committed error that
was essential to its judgment in favor of respondent.
Because the Ninth Circuit did not consider, and the
Ministry had no reasonable opportunity to argue, the
critical legal point we have mentioned, we vacate the
judgment of the Ninth Circuit, and remand the case for
further proceedings consistent with this opinion.
It is so ordered.