Cite as: 546 U. S. ____ (2006) 1 

Per Curiam 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order 

that corrections may be made before the preliminary print goes to press. 

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 judgment 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 Islamic 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 California 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 immunity 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 argued. 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 commercial activity and that the other conditions were satisfied. 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 simply 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 ministry (unlike, say, a government-owned commercial enterprise) 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 instrumentality’ of the state”). 

We shall not now determine whether the Solicitor General 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 matters 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 instrumentality” 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 (stating 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 instrumentality” 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 position 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 distinction between a foreign state and its agencies or instrumentalities 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.