Page:Türkiye Halk Bankasi A.Ş. v. United States.pdf/21

2 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. . 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) (, 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