Page:Türkiye Halk Bankasi A.Ş. v. United States.pdf/11

8 answer or other responsive pleading to the complaint,” §1608(d), as well as for any judgment of default, §1608(e)—that relate to civil cases alone. So, too, the Act’s provision regarding counterclaims concerns only civil proceedings. §1607. Finally, the Act renders a non-immune foreign state “liable in the same manner and to the same extent as a private individual,” except that a foreign state (but not an agency or instrumentality thereof) “shall not be liable for punitive damages.” §1606. Each of those terms characterizes civil, not criminal, litigation.

Other parts of the statute underscore the FSIA’s exclusively civil focus. Congress codified its finding that authorizing federal courts to determine claims of foreign sovereign immunity “would protect the rights of both foreign states and litigants in United States courts.” §1602 (emphasis added). The statutory term “litigants” does not ordinarily sweep in governments acting in a prosecutorial capacity. See Black’s Law Dictionary 1119 (11th ed. 2019) (defining “litigant” as “A party to a lawsuit; the plaintiff or defendant in a court action”). What is more, Congress described the FSIA as defining “the circumstances in which foreign states are immune from suit,” not from criminal investigation or prosecution. 90 Stat. 2891 (emphasis added).

In stark contrast to those many provisions concerning civil actions, the FSIA is silent as to criminal matters. The Act says not a word about criminal proceedings against foreign states or their instrumentalities. If Halkbank were correct that the FSIA immunizes foreign states and their instrumentalities from criminal prosecution, the subject undoubtedly would have surfaced somewhere in the Act’s text. Congress typically does not “hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001).

Context reinforces text. Although the vast majority of litigation involving foreign states and their