# Halkbank v. United States/Opinion of Justice Gorsuch

SUPREME COURT OF THE UNITED STATES
No. 21–1450
TURKIYE HALK BANKASI A. S., AKA HALKBANK, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [April 19, 2023]
Justice Gorsuch, with whom Justice Alito joins, concurring in part and dissenting in part.
For almost a half century, judges have known where to turn for guidance when deciding whether a foreign sovereign is susceptible to suit in an American court: Congress’s directions in the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U. S. C. §1602 et seq. Sometimes the FSIA authorizes American courts to hear cases against foreign sovereigns; sometimes the statute immunizes foreign sovereigns from suit. Today, however, the Court holds that the FSIA’s rules apply only in civil cases. To decide whether a foreign sovereign is susceptible to criminal prosecution, the Court says, federal judges must consult the common law. Respectfully, I disagree. The same statute we routinely use to analyze sovereign immunity in civil cases applies equally in criminal ones.
I
I begin from common ground. Congress has vested federal courts with subject-matter jurisdiction over cases involving “offenses against the laws of the United States.” 18 U. S. C. §3231. The Court holds that this statute permits federal courts to hear cases alleging offenses committed by foreign sovereigns. I agree. As the Court explains, §3231’s language grants subject-matter jurisdiction in broad terms ​without regard to the nature of the defendant; nor are we free to “graft an atextual limitation onto” the law that would exempt foreign sovereigns from its reach. Ante, at 3. Of course, Türkiye Halk Bankasi (Halkbank) asserts that it is a sovereign entity and, as such, enjoys immunity from prosecution. But that does not change a thing. Generally, questions about sovereign immunity do not go to a court’s subject-matter jurisdiction (something a court must consider in every case even if the parties do not). Instead, questions of sovereign immunity usually go to a court’s personal jurisdiction over a particular defendant. And as with other personal-jurisdiction defenses, a sovereign may waive its immunity and consent to judicial proceedings if it wishes. See PennEast Pipeline Co. v. New Jersey, 594 U. S. ___, ___ (2021) (Gorsuch, J., dissenting) (slip op., at 2).
From that common ground, however, I part ways with the Court. Like the Second Circuit, I would analyze Halkbank’s assertion of sovereign immunity under the terms of the FSIA. Start with 28 U. S. C. §1604, which sets forth the FSIA’s general immunity rule. It provides in relevant part that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.” Elsewhere, the statute defines a “foreign state” to include an “agency or instrumentality of a foreign state.” §1603(a). And the statute defines an “agency or instrumentality” to include any “separate legal person,” such as a corporation, that is an “organ” or “subdivision” of a foreign state and majority owned by a foreign state. §1603(b)(1)–(2).
Applying those rules here yields a ready answer. Halkbank is a corporation that is majority-owned by the government of Turkey. 16 F. 4th 336, 349 (CA2 2021). Accordingly, it qualifies as a foreign state entitled to immunity from suit under §1604 unless one of the exceptions provided in §§1605–1607 applies. And, it turns out, one such exception does apply. Section 1605(a)(2) instructs that a foreign ​sovereign is not entitled to immunity when “the action is based upon” certain “commercial activity” in or affecting the United States. In this case, the indictment sufficiently alleges that Halkbank has engaged in just those kinds of commercial activities. See No. 15 Cr. 867 (SDNY, Oct. 1, 2020), App. to Pet. for Cert. 36a–38a. Of course, this case comes to us on a motion to dismiss the indictment, and the question of immunity may be revisited as the case proceeds. But for now, nothing in the law precludes this suit, just as the Second Circuit held.
That the FSIA tells us all we need to know to resolve the sovereign immunity question in this case can come as no surprise. This Court has long acknowledged that “the [FSIA] must be applied by the district courts in every action against a foreign sovereign.” Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 493 (1983). As we have put it, “any sort of immunity defense made by a foreign sovereign in an American court must stand on the Act’s text. Or it must fall.” Republic of Argentina v. NML Capital, Ltd., 573 U. S. 134, 141–142 (2014). It’s a rule that follows directly from the statutory text because “Congress established [in the FSIA] a comprehensive framework for resolving any claim of sovereign immunity.” Republic of Austria v. Altmann, 541 U. S. 677, 699 (2004).
II
Despite all this, the Court declines to apply the FSIA’s directions governing foreign sovereign immunity. It holds that the statute’s general immunity rule in §1604 speaks only to civil disputes. Any question about a foreign sovereign’s immunity from criminal prosecution, the Court insists, must therefore be resolved under common-law principles. Ante, at 7, 15. In aid of its conclusion, the Court offers three principal arguments. But to my mind, none packs the punch necessary to displace the plain statutory text.
​First, the Court points to 28 U. S. C. §1330. That provision grants federal courts subject-matter jurisdiction over civil cases against foreign sovereigns when one of the exceptions provided in §§1605–1607 applies. From this grant of civil jurisdiction, the Court reasons, it is a “natural inference” that §1604’s immunity rule must apply only in civil cases. Ante, at 11. More naturally, however, it seems to me that any inference from §1330 runs the other way. Section 1330 shows that when Congress wanted to limit its attention to civil suits, it knew how to do so. Section 1604 contains no similar language restricting its scope to civil disputes. Instead, it speaks far more broadly, holding that a foreign state “shall be immune” unless a statutorily specified exception applies. Normally, when Congress includes limiting language in one section of a law but excludes it from another, we understand the difference in language to convey a difference in meaning (expressio unius est exclusio alterius). See, e.g., Bittner v. United States, 598 U. S. 85, 94 (2023); Department of Homeland Security v. MacLean, 574 U. S. 383, 391 (2015). The Court’s interpretation of the FSIA defies this traditional rule of statutory construction. Today, the Court does to §1604 exactly what it recognizes we may not do to §3231—grafting an atextual limitation onto the law’s unambiguous terms (in this instance, adding a “civil”-only restriction).
Second, the Court suggests we should read §1604 as affording immunity only in civil cases because §1605’s exceptions apply only in civil cases. Ante, at 11. But here both the premise and the conclusion seem to me mistaken. If some of §1605’s exceptions apply only in civil cases, others speak more expansively. Take the exception relevant here. The commercial-activities exception found in §1605(a)(2) denies sovereign immunity “in any case … in which the action is based upon a commercial activity carried on in the United States by the foreign state.” (Emphasis added). Nowhere does this exception distinguish between civil and ​criminal actions. Besides, even if the Court’s premise were correct and §1605’s exceptions (somehow) applied only in civil actions, what would that prove? It might simply mean that Congress wanted a more generous immunity from criminal proceedings than civil suits.
Finally, the Court points to the FSIA’s provisions regulating the venue and removal of civil actions against foreign sovereigns. Ante, at 7–8 (discussing §§1391(f) and 1441(d)). But once more, it seems to me this shows only that Congress knew how to speak specifically to civil suits when it wished to do so. Congress may have had reason to be especially concerned about the venue for civil suits too, given that almost all efforts to hale foreign sovereigns into U. S. courts have involved civil claims. Indeed, the parties and their amici struggled to find examples of criminal charges brought against foreign sovereigns either before or after the FSIA’s adoption—not only in the United States, but in any country. Compare Brief for United States 25–26 with Reply Brief 7–9. I might be willing to spot the Court that the venue and removal provisions could help illuminate §1604’s scope if that statute were ambiguous. But no one suggests that we have anything like that here. Section 1604 is as clear as a bell and we must abide by its direction that foreign sovereigns “shall be immune” absent some express statutory exception.
III
After declaring that the FSIA applies only to civil suits, the Court holds that “the common law” controls the disposition of any claim of foreign sovereign immunity in criminal cases. Ante, at 15. Yet rather than decide whether the common law shields Halkbank from this suit, the Court shunts the case back to the Second Circuit to figure that out. All of which leaves litigants and our lower court colleagues with an unenviable task, both in this case and others sure to emerge. Many thorny questions lie down the ​“common law” path and the Court fails to supply guidance on how to resolve any of them.
Right out of the gate, lower courts will have to decide between two very different approaches. One option is to defer to the Executive Branch’s judgment on whether to grant immunity to a foreign sovereign—an approach sometimes employed by federal courts in the years immediately preceding the FSIA’s adoption. The other option is for a court to make the immunity decision looking to customary international law and other sources. Compare Brief for United States 21–26 with Brief for Professor Ingrid (Wuerth) Brunk et al. as Amici Curiae 6–25.
Whichever path a court chooses, more questions will follow. The first option—deferring to the Executive—would seem to sound in separation-of-powers concerns. But does this mean that courts should not be involved in making immunity determinations at all? And what about the fact that the strong deference cases didn’t appear until the 20th century; were courts acting unconstitutionally before then? If not, should we be concerned that deference to the Executive’s immunity decisions risks relegating courts to the status of potted plants, inconsistent with their duty to say what the law is in the cases that come before them? See, e.g., Brief for Professor Ingrid (Wuerth) Brunk et al. as Amici Curiae 17–21.
The second option—applying customary international law—comes with its own puzzles. If the briefing before us proves anything, it is that customary international law supplies no easy answer to the question whether a foreign sovereign enjoys immunity from criminal prosecution. Compare Brief for Professor Roger O’Keefe as Amicus Curiae 11–16 with Brief for Mark B. Feldman et al. as Amici Curiae 12–13. Nor is it even altogether clear on what authority federal courts might develop and apply customary international law. Article VI of the Constitution does not list ​customary international law as federal law when it enumerates sources of “the supreme Law of the Land.” And Article I vests Congress rather than the Judiciary with the power to “define and punish … Offences against the Law of Nations.” §8, cl. 10. See Sosa v. Alvarez-Machain, 542 U. S. 692, 739–742 (2004) (Scalia, J., concurring in part and concurring in judgment); Jesner v. Arab Bank, PLC, 584 U. S. ___, ___–___ (2018) (Gorsuch, J., concurring in part and concurring in judgment) (slip op., at 4–5); Nestlé USA, Inc. v. Doe, 593 U. S. ___, ___ (2021) (Gorsuch, J., concurring) (slip op., at 3).
Perhaps Article III incorporated customary international law into federal common law. But since Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), federal courts have largely disclaimed the power to develop federal common law outside of a few reserved areas. See Sosa, 542 U. S., at 740–742 (opinion of Scalia, J.). And whether customary international law survives as a form of federal common law after Erie is a matter of considerable debate among scholars. Compare C. Bradley & J. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997), with H. Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824 (1998). Must lower courts confront this long-running debate to resolve a claim of foreign sovereign immunity in criminal cases? And if there is no federal law at work here that might apply under the Supremacy Clause, only general common-law principles, what constraints remain on state prosecutions of foreign sovereigns? * Today’s decision overcomplicates the law for no good reason. In the FSIA, Congress supplied us with simple rules for resolving this case and others like it. Respectfully, I would follow those straightforward directions to the same straightforward conclusion the Second Circuit reached: This case against Halkbank may proceed.