 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 13, 2020                   Decided July 28, 2020

                       No. 19-7087

  TIG INSURANCE COMPANY, AS SUCCESSOR BY MERGER TO
 INTERNATIONAL INSURANCE COMPANY AND INTERNATIONAL
          SURPLUS LINE INSURANCE COMPANY,
                     APPELLANT

                             v.

REPUBLIC OF A RGENTINA, AS SUCCESSOR TO CAJA NACIONAL
 DE AHORRO Y SEGURO AND CAJA NACIONAL DE AHORRO Y
                       SEGURO ,
                      APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:18-mc-00129)



     Mark N. Bravin argued the cause for appellant. With him
on the briefs was Theresa B. Bowman.

    David A. Edelstein argued the cause for appellees. With
him on the brief were Christopher Taggi and Charles M.
Asmar.

   Before: TATEL and PILLARD , Circuit Judges, and
SENTELLE , Senior Circuit Judge.
                               2
    Opinion for the Court filed by Circuit Judge PILLARD.

     PILLARD , Circuit Judge: TIG Insurance Company sought
to satisfy a long-pending judgment by attaching a building that
the Republic of Argentina listed for sale in the District of
Columbia. The Foreign Sovereign Immunities Act (FSIA)
prevents parties from executing against the property of foreign
states in the United States unless the property falls into one of
the statute’s enumerated exceptions. See 28 U.S.C. § 1609. A
prerequisite common to those exceptions is that the property be
“used for a commercial activity” in the United States. Id.
§ 1610(a). Three days after TIG filed its emergency motion for
attachment-related relief and a writ of execution, Argentina
removed the property from the market. The district court
concluded that the property was immune from execution
because Argentina’s removal meant the property would not be
“used for a commercial activity” at the time the court’s writ
would issue. TIG contends the district court erred in looking
only to the use of the property at the time of its order. We hold
that whether a property is “used for a commercial activity”
depends on the totality of the circumstances existing when the
motion for a writ of attachment is filed, not when the writ
would issue. We accordingly vacate and remand for further
proceedings consistent with this opinion.

                      BACKGROUND

     Beginning in 1979, Argentina (through its predecessor-in-
interest, a state-owned commercial insurance company called
Caja Nacional) incurred debts under reinsurance contracts
ultimately payable to TIG Insurance Corporation. First in 2000
(through its own predecessor-in-interest), and again in 2017,
TIG sought and ultimately obtained commercial arbitral
awards against Argentina for failure to pay under the
reinsurance contracts. TIG confirmed those arbitral awards in
                               3
the Northern District of Illinois in 2001 and 2018. Together,
those awards are now worth more than $33 million. Despite
the parties’ various efforts to reach a settlement over the last
fifteen years, Argentina has yet to pay TIG any of the money
owed.

     In 2018, TIG learned that Argentina was planning to sell
real estate in the District of Columbia. Several decades ago,
Argentina used the property, located at 2136 R Street
Northwest, to house both diplomats and commercial tenants.
See NML Capital, Ltd. v. Republic of Argentina, No. 04-cv-
0197 (CKK), 2005 WL 8161968, at *1, *4, *14 (D.D.C. Aug.
3, 2005). A creditor sought to attach the property in the early
2000s. Id. at *1. In the ensuing litigation, the district court
noted that, “since 1997, the building has been uninhabited and
in a state of disrepair with heavy restoration cost estimates.”
Id. at *4. The property remains uninhabited today; Argentina
says that it still stores some diplomatic files there.

     On September 25, 2018, after Argentina had received
multiple offers to buy the property, TIG registered its
judgments from the Northern District of Illinois in the District
of the District of Columbia, see 28 U.S.C. § 1963, and
simultaneously filed an omnibus motion for emergency relief,
attachment-related relief, and a writ of execution on the
property. Three days later—before the matter had even been
assigned to a judge—Argentina took the property off the
market. The district court then denied TIG’s motion for
emergency relief, concluding that “a property is immune from
attachment unless it is ‘used for a commercial activity’ at the
time a writ of attachment issues.” TIG Ins. Co. v. Republic of
Argentina, No. 18-mc-0129 (DLF), 2019 WL 3017618, at *1-2
(D.D.C. July 10, 2019) (quoting 28 U.S.C. § 1610(a)). TIG
timely appealed the district court’s denial. Our review is de
novo. See, e.g., Bennett v. Islamic Republic of Iran, 618 F.3d
                               4
19, 21 (D.C. Cir. 2010); FG Hemisphere Assocs., LLC v.
Republique du Congo, 455 F.3d 575, 583-84 (5th Cir. 2006).

                         ANALYSIS

A. Legal Framework

     In enacting the FSIA, “Congress established . . . a
comprehensive framework for resolving any claim of
sovereign immunity.” Republic of Argentina v. NML Capital,
Ltd., 573 U.S. 134, 141 (2014) (internal quotation marks
omitted). That framework “confers on foreign states two kinds
of immunity.” Id. at 142; see generally Walters v. Indus. &
Comm. Bank of China, Ltd., 651 F.3d 280, 286-89 (2d Cir.
2011).       The first and more familiar is “jurisdictional
immunity,” according to which “a foreign state shall be
immune from the jurisdiction of the courts of the United
States . . . except as provided in sections 1605 to 1607.”
28 U.S.C. § 1604. The second is “execution immunity,” which
further protects foreign sovereigns by ensuring that, in the
event of an adverse judgment, the sovereign’s property in the
United States “shall be immune from attachment[,] arrest[,] and
execution except as provided in sections 1610 and 1611 of this
chapter.” Id. § 1609. To enforce an award against a foreign
state in the United States, a party must therefore establish both
that the foreign state is not immune from suit and that the
property to be attached or executed against is not immune.
Importantly, execution immunity is not itself jurisdictional—
unlike jurisdictional immunity. See Weinstein v. Islamic
Republic of Iran, 831 F.3d 470, 482 (D.C. Cir. 2016),
abrogated on other grounds by Rubin v. Islamic Republic of
Iran, 138 S. Ct. 816 (2018). Execution immunity confers only
a “default presumption” against execution against a foreign
                               5
sovereign’s U.S. property that the “judgment creditor must
defeat at the outset.” Id. (internal quotation marks omitted).

     In suits involving the attachment of a foreign sovereign’s
property, section 1610(a) governs how that “default
presumption” may be overcome. Creditors must satisfy the two
general requirements outlined in the opening language of that
section and fit their claim into one of the seven enumerated
exceptions to the otherwise applicable immunity codified in
section 1609. The two general requirements and the specific
exception invoked in this case are as follows:

    (a) The [1] property in the United States of a foreign
    state, as defined in section 1603(a) of this chapter,
    [2] used for a commercial activity in the United
    States, shall not be immune from attachment in aid
    of execution, or from execution, upon a judgment
    entered by a court of the United States or of a State
    after the effective date of this Act, if—

    [. . .]

          (6) the judgment is based on an order confirming
          an arbitral award rendered against the foreign
          state, provided that attachment in aid of
          execution, or execution, would not be
          inconsistent with any provision in the arbitral
          agreement[.]

28 U.S.C. § 1610(a); see also, e.g., Conn. Bank of Commerce v.
Republic of Congo, 309 F.3d 240, 247 (5th Cir. 2002) (noting
the two “statutory criteria” of § 1610(a)).

    The only issue before us is whether the second general
requirement of section 1610(a)—that the property be “used for
a commercial activity in the United States”—is met. The first
                               6
requirement is satisfied because there is no dispute that the
building at 2136 R Street NW is Argentinian property in the
United States. And it is uncontested that at least one of the
judgments confirming one of TIG’s arbitration awards satisfies
the sixth enumerated exception, allowing attachment where the
movant relies on a “judgment . . . based on an order confirming
an arbitral award rendered against the foreign state.” 28 U.S.C.
§ 1610(a). All we must decide is how a district court is to
determine whether the property is one “used for a commercial
activity” here.

     As a preliminary matter, Argentina contends that we need
not resolve even that narrow question because TIG has taken
contrary positions in the district court and before this court,
thereby forfeiting both the argument it made below and the one
it now advances. See generally Argentina Br. 31-36.
According to Argentina, TIG asked the district court to
evaluate whether the property was “used for a commercial
activity” at the time of filing, but now argues that the court
should have examined the totality of the circumstances
surrounding the property to make that determination.

     We see no forfeiture here. TIG’s arguments speak to
different questions, both of which must be answered to resolve
this case. First, at what moment in time should a district court
assess whether a property is one “used for a commercial
activity”? And, second, what circumstances should a district
court examine to make that determination? As explained
below, we agree with TIG on both counts: Courts should
determine whether a property is “used for a commercial
activity” based on the totality of circumstances at the time of
filing.
                                 7
B. District Courts Should Determine Whether a Property
   Is “Used for a Commercial Activity” at the Time of
   Filing

     We begin with the question of timing. Argentina argues,
and the district court agreed, that the phrase “used for a
commercial activity” means that the property must “be in use
for a commercial purpose at the time a writ of attachment and
execution issues.” Argentina Br. 9; see also TIG Ins. Co., 2019
WL 3017618, at *2 (requiring ongoing use for a commercial
purpose at the “moment that a court makes [its] immunity
determination”). By contrast, TIG argues that district courts
are to “examin[e] the state of the record at the time of filing” to
make this determination. TIG Br. 42.

     TIG’s time-of-filing approach best accords with the text
and purpose of the FSIA. Under the “comprehensive
framework” that the FSIA created, “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.” NML, 573 U.S.
at 141-42. Stripped to the pertinent essentials, the text at issue
here states that “[t]he property in the United States of a foreign
state . . . used for a commercial activity in the United States,
shall not be immune.” 28 U.S.C. § 1610(a). Argentina’s
primary argument in support of its time-of-writ position is that
“used for a commercial activity” operates in this sentence as a
“passive phrase with an implicit ‘is,’”—referring to property
that is used for a commercial activity—and therefore requires
“use for a commercial activity in the present context.”
Argentina Br. 16.

    The text does not support Argentina’s time-of-writ rule for
several reasons:

     First, as Argentina’s resort to an “implicit” tense makes
clear, the text is anything but clear as to what tense it envisions.
                                 8
Nothing in the language of this provision offers any clue as to
whether “is used” or “was used” is the better reading.
Moreover, as explained in greater detail below, we do not think
any tense at all is to be associated with this phrase, which
appears to operate as an adjective characterizing the type of
property that may be attached. At a minimum, therefore, the
text does not clearly dictate the reading that Argentina
advances.

     Second, even were we to accept Argentina’s contention
that the text implicitly references current use, Argentina does
not support its further contention that what counts as the
present time for purposes of that assessment is the moment the
court would issue its writ. A statute’s use of the present tense
ordinarily refers to the time the suit is filed, not the time the
court rules. For example, in considering whether plaintiffs
have shown that a foreign corporation operates as an
instrumentality of a foreign sovereign, the Supreme Court has
held that the “plain text . . . requires that instrumentality status
be determined at the time suit is filed” because the text “is
expressed in the present tense.” Dole Foods Co. v. Patrickson,
538 U.S. 468, 478 (2003); see also Bennett, 618 F.3d at 26
(Garland, J., concurring) (“Given the statute’s use of the
present tense, I would hold that [its protection] against
attachment applies to property . . . at the time the writ of
attachment is filed.”). Because litigation proceeds based on
facts as alleged in a complaint, it makes sense that the time the
complaint is filed is the presumptive temporal touchstone.

     That practicality points to a third, related obstacle to
Argentina’s time-of-writ rule, which is that it would require
departing from the usual rules governing civil litigation,
according to which district courts generally assess facts at the
time of filing. In the context of determining diversity
jurisdiction, for example, jurisdiction “is determined by the
                               9
condition of the parties at the commencement of the suit.”
Anderson v. Watts, 138 U.S. 694, 702-03 (1891); see also
Grupo Dataflux v. Atlas Global Grp., 541 U.S. 567, 570-71
(2004). Similarly, in determining whether the amount-in-
controversy requirement is satisfied, courts do not consider
changes that occur after removal to federal court. See, e.g., St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 295
(1938). And, as noted, district courts determine how to rule on
a motion to dismiss by “looking to the facts existing when” the
complaint is filed. Keene Corp. v. United States, 508 U.S. 200,
207 (1993). Argentina replies that these examples generally
involve jurisdictional requirements, and execution immunity is
not jurisdictional in this circuit. Argentina Br. 26-27. But
nothing about that distinction supports adopting an unfamiliar
time-of-writ rule for assessing commercial use. Indeed, at oral
argument, counsel for Argentina was unable to point to a single
example where we have adopted such a rule in any area of law.
See Oral Arg. Rec. 14:18-15:50.

      Fourth, given the FSIA’s general definition of
“commercial activity,” Argentina’s reading of the phrase “used
for a commercial activity” creates a separate textual problem.
The statute defines “commercial activity” to mean “either a
regular course of commercial conduct or a particular
commercial transaction or act.” 28 U.S.C. § 1603(d); see also,
e.g., Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela,
932 F.3d 126, 150 (3d Cir. 2019). By requiring that the
property’s commercial use occur when the court issues its writ,
Argentina essentially reads out of the statutory definition its
coverage of a “particular commercial transaction or act.” As
TIG explains, given the impossibility of anticipating with
precision when a court might rule, “[r]equiring commercial
activity to remain ongoing until an unspecified future time-of-
writ[] necessarily requires evidence of continuous and ongoing
commercial activity.” TIG Br. 44.
                                10
     The district court conceded that that this consequence was
one casualty of its time-of-writ rule, but suggested it was
“reasonable to conclude that Congress did not intend to invoke
both definitions each time it referenced the term ‘commercial
activity’ in the FSIA.” TIG Ins. Co., 2019 WL 3017618, at *4.
That reasoning, while perhaps tenable in isolation, cannot
prevail against an alternate reading that gives full effect to both
definitions.

     Argentina responds that a time-of-filing rule runs into two
textual problems of its own. First, Argentina points to the
Ninth Circuit’s definition of “use” in this provision to mean
“active employment.” See Argentina Br. 16 (quoting Af-Cap,
Inc., v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080, 1088
(9th Cir. 2007) (Af-Cap II)). But that interpretation does not
speak to the question of timing here: A property could equally
be in “active employment” at the time of filing or at the time of
writ. And, in any event, the Ninth Circuit in Af-Cap II adopted
that definition only to answer questions unrelated to the issue
before us, including whether the statute’s passive construction
covers use by an entity other than the foreign sovereign (no) or
property that was merely generated by, or has some general
nexus with, a commercial activity (also no). See Af-Cap II, 475
F.3d at 1087, 1091, 1093. Argentina actively employed its
property for a commercial activity (namely, putting it up for
sale), so there is no question that these facts satisfy the Ninth
Circuit’s interpretation, such as it is. But the fundamental point
is that the issue here is not addressed by the portion of Af-Cap
II that examines the definition of the word “use.” And, as
discussed below, when the Ninth Circuit did answer the
question posed here, it adopted a totality-of-the-circumstances
inquiry. See Af-Cap II, 475 F.3d at 1091; see also Af-Cap
Inc. v. Republic of Congo, 383 F.3d 361, 369 & nn.7-8 (5th Cir.
2004) (Af-Cap I).
                                11
     Second, Argentina contrasts the introductory language in
section 1610(a) with the language used in one of the
enumerated exceptions, which permits attachment where
“property is or was used for the commercial activity upon
which the claim is based.” 28 U.S.C. § 1610(a)(2) (emphasis
added); see Argentina Br. 17, 21-22. As an initial matter, we
note that this is not an apples-to-apples comparison: The
introductory portion of section 1610(a) lays out general
requirements for any property that may be attachable under any
exception, whereas section 1610(a)(2) specifies the details of
one exception. And, as discussed above, Congress referred in
section 1610(a) to “property used for a commercial activity,”
not, as Argentina would have it, to property that is “used for a
commercial activity,” so the contrast Argentina sees with “is or
was” in section 1610(a)(2) is absent.

     In any case, the “is or was” specification in
section 1610(a)(2) is best read as making “double sure,” Mercy
Hosp., Inc. v. Azar, 891 F.3d 1062, 1068 (D.C. Cir. 2018)
(quoting Fla. Health Scis. Ctr., Inc. v. HHS, 830 F.3d 515, 520
(D.C. Cir. 2016)), that property that itself forms the basis of a
claim would be attachable.              As the House Report
accompanying the FSIA emphasized, the “language ‘is or was
used’ in paragraph (2) contemplates a situation where property
may be transferred from the commercial activity which is the
subject of the suit in an effort to avoid the process of the court.”
H.R. Rep. No. 94-1487, at 28 (1976). Congress’ choice to
emphasize the reach of the second exception does not mean that
Congress intended the general scope of attachable property
under section 1610 to be narrower. Indeed, the most recent
Restatement of Foreign Relations Law of the United States
uses the very language to which Argentina points in section
1610(a)(2) as descriptive of the ambit of section 1610(a) as a
whole: “[P]roperty of states may be attached” under the FSIA
“if it is (or was) used in commercial activity.” Restatement
                               12
(Fourth) of the Foreign Relations Law of the United States
§ 464 cmt. c (Am. Law Inst. 2020).

     The lack of textual basis for Argentina’s proffered time-
of-writ rule suffices to reject it. But the broader purpose of the
FSIA further confirms that the time-of-filing rule is the better
reading. Congress enacted the FSIA to “protect the rights of
both foreign states and litigants in United States courts.”
28 U.S.C. § 1602. Congress cannot have intended a rule that
would allow a foreign sovereign unilaterally to thwart an
otherwise valid attachment simply by removing property from
the market or otherwise pausing commercial activity after a
creditor files suit. Were we to adopt Argentina’s time-of-writ
rule, foreign sovereigns would have every incentive to halt any
commercial use of a property as soon as a creditor sought to
attach it, and to draw out proceedings to delay the issuance of
a writ until it had been able to do so. As the Third Circuit has
explained, “[N]arrowing the temporal inquiry to the day the
writ is executed unnecessarily leaves room for manipulation,”
for instance by “allow[ing] parties to avoid execution by
freezing assets or otherwise ceasing commercial use.”
Crystallex, 932 F.3d at 150. A time-of-filing rule avoids such
gamesmanship by ensuring that post-filing maneuvering by
foreign sovereigns will not affect the result.

    Argentina does not deny that such manipulation is
possible, instead arguing that any concern about such a result
“flows from the incorrect starting premise that enforcement of
judgments against foreign states should be identical to
enforcement of judgments against private individuals.”
Argentina Br. 24. But holding that a foreign sovereign enjoys
execution immunity only to the extent that the FSIA provides
does not reduce it to nothing. The FSIA affords immunity to
property that is not “used for a commercial activity.”
Argentina’s preferred rule would place extraordinary burdens
                              13
on the parties and the district court to speculate about factual
circumstances at the precise moment when the court’s writ
would issue. We fail to discern any intent on Congress’ part to
guarantee such a result.

C. District Courts Should Examine the Totality of the
   Circumstances to Determine Whether a Property Is
   “Used for a Commercial Activity”

      Concluding that courts should assess the facts at the time
of filing does not answer what facts bear on whether a property
is one “used for a commercial activity.” 28 U.S.C. § 1610(a).
In defending its time-of-writ rule, Argentina argues that the
only relevant consideration is the property’s use at the moment
when the court issues its writ; past uses and continuing
availability for future commercial use are irrelevant to the
inquiry. See, e.g., Argentina Br. 7-9, 15-18. By contrast, TIG’s
“totality-of-the-circumstances” approach would “take[] into
account all uses of the Property, including recent past uses, as
well as whether the foreign state has manipulated the
Property’s use or status to evade attachment and execution, and
whether the Property remains available for commercial use.”
TIG Br. 24. We join several other circuits in holding that
district courts should look to the totality of the circumstances
to make this determination.

     Once again, that result follows from the text and purpose
of the FSIA. The line between sovereign acts and commercial
acts is a distinction central to the FSIA. The statute seeks to
ensure that foreign states may not be sued in United States
courts for their sovereign acts while providing that they—like
other commercial actors—may be held accountable here for
their commercial activities. Congress’ enacted findings and
declaration of purpose make that goal explicit: States were not
to be “immune from the jurisdiction of foreign courts insofar
                                14
as their commercial activities are concerned, and their
commercial property may be levied upon for the satisfaction of
judgments rendered against them in connection with their
commercial activities.” 28 U.S.C. § 1602. The requirement in
section 1610(a) that the property be one “used for a commercial
activity,” id. § 1610(a), should be interpreted consistently with
the goal to ensure that only a foreign sovereign’s “commercial
property” is attachable, id. § 1602. For that reason, the phrase
is best interpreted as an adjectival phrase characterizing the
kind of property that may be attached. As the Fifth Circuit has
captured it, the question a court must ask is whether the
property at issue is “the type of foreign property the FSIA was
designed as a shield to protect.” Af-Cap I, 383 F.3d at 371.

     Indeed, just as it would be odd to look only to the
property’s use at the moment when the court issues its writ, so,
too, would it be odd to confine a district court’s examination to
the property’s use at the exact moment when the suit was filed.
That approach would again encourage gamesmanship—but on
the part of plaintiffs rather than foreign sovereigns. In either
case, an artificially narrow lens allows one-time or aberrational
uses to dictate the fate of the property. The Fifth Circuit
illustrates this point through the hypothetical of an “airplane
owned by a foreign government and used solely to shuttle a
foreign head-of-state back and forth for official visits,” but that
“had been used on rare occasions for commercial activities—
for example, . . . to fill in for a displaced plane in the foreign
country’s commercial fleet.” Id. at 369 (quoting Conn. Bank,
309 F.3d at 253). The Fifth Circuit concluded that it would
“strain reason” to hold that the airplane could be attached and
sold in execution of a judgment due to those aberrational
commercial uses. Id. Extending the hypothetical, the fact that
a suit is filed during one of the “rare occasions” when the
property has a commercial use similarly should not be
dispositive. Rather, the better conclusion is to hold that a
                                15
“foreign property retains its immunity protection where its
commercial uses, considered holistically and in context, are
bona fide exceptions to its otherwise noncommercial use.” Id.
at 370.

     In requiring the district court to consider the broader
context of the property at issue, we join our colleagues in three
other circuits. Under the Fifth Circuit’s “more holistic
approach,” courts “should include an examination of the uses
of the property in the past as well as all facts related to its
present use, with an eye toward determining whether the
commercial use of the property, if any, is so exceptional that it
is an out of character use for that property.” Id. at 369 (footnote
and internal quotation marks omitted). This holistic approach
gives due weight to past uses of the property in order to
accurately characterize what kind of property is at issue:
“[C]onsideration of evidence of past use is an indispensable
part of a court’s FSIA inquiry” because a “court forbidden to
consider how property has been used in the past would be hard-
pressed to accurately determine whether the predominant use
of that property is commercial or sovereign.” Id. at 369 n.7.
Reasoning along similar lines, the Third Circuit recently
concluded that this “totality-of-the-circumstances inquiry
seems more appropriate” to ensure that gamesmanship does not
distort the result. Crystallex, 932 F.3d at 150 (citing Af-Cap I,
383 F.3d at 369).

     In addition, the Ninth Circuit has adopted its own version
of a totality-of-the-circumstances test, noting that the
execution-immunity “determination will be made by
considering the use of the property in question in a straight-
forward manner, with a proper appreciation of the fact that the
further removed the property is from the referenced
commercial transaction, the less likely it is that the property
was used for that transaction.” Af-Cap II, 475 F.3d at 1091.
                               16
Indeed, the Ninth Circuit embraces a broader inquiry than even
the Fifth Circuit. Whereas the Fifth Circuit had expressed its
“reservations about defining property use as commercial in
nature solely by reference to past single and/or exceptional
commercial uses,” Af-Cap I, 383 F.3d at 369, the Ninth Circuit
“decline[d] . . . to incorporate the Fifth Circuit’s articulated
‘reservations’” because, in its view, “attempting to quantify the
number of commercial uses associated with the property, or to
embark upon characterizing property use as exceptional or
unexceptional, would unnecessarily complicate the
determination to be made under § 1610(a),” Af-Cap II,
475 F.3d at 1091 (quoting Af-Cap I, 383 F.3d at 369). We do
not choose between these slightly different approaches, leaving
it to district courts to elaborate, case-by-case, how they find
particular factual circumstances to bear on a property’s asserted
commercial use.

     Argentina raises three primary objections to a totality-of-
the-circumstances inquiry. First, it seeks to rebut the circuit
consensus by reference to cases, most notably from the Second
Circuit, that appear to place potentially dispositive weight on
the property’s use at the time the writ would issue. See
Argentina Br. 17-19. In particular, the Second Circuit has
noted that property subject to attachment and execution “must
be ‘property in the United States of a foreign state’ and must
have been ‘used for a commercial activity’ at the time the writ
of attachment or execution is issued.” Aurelius Capital
Partners, LP v. Republic of Argentina, 584 F.3d 120, 130 (2d
Cir. 2009) (quoting 28 U.S.C. § 1610(a)); see also Export-
Import Bank of the Republic of China v. Grenada, 768 F.3d 75,
84 (2d Cir. 2014) (considering the property’s commercial
status “when the writ of attachment or execution issues”).

    But across its cases in this area, the Second Circuit appears
to be concerned with ensuring that purely future uses are not
                                17
projected to satisfy the requirements of § 1610(a). As TIG
explains, the best reading of Aurelius is that, “by the time that
a writ is issued, some commercial use must already have been
active.” TIG Br. 30. That reading accords with other language
from Aurelius explaining that “[s]ection 1610(a) does not say
that the property in the United States of a foreign state that ‘will
be used’ or ‘could potentially be used’ for a commercial
activity in the United States is not immune from attachment or
execution,” but instead makes clear that the property “must be
‘used for a commercial activity in the United States’ before it
is susceptible to attachment and execution.” 584 F.3d at 130;
see also id. at 131 (noting that Argentina “had not used the
funds for any commercial activity at the time of attachment”
(emphasis added)). Similarly, in EM Ltd. v. Republic of
Argentina, the Second Circuit found inadequate an attempt to
attach funds that “could have been used to repay the Republic’s
debts to the IMF” where there was no evidence of “either actual
use or designation for use” in that manner. 473 F.3d 463, 484
(2d Cir. 2007); see also id. (“The plain language of the statute
suggests that the standard is actual, not hypothetical, use.”).
Such concerns are assuaged by a totality-of-the-circumstances
inquiry, under which a property would not be found to be
commercial if it had never yet been used for commercial
activity.

     Second, Argentina argues that the Fifth Circuit, too, places
potentially dispositive weight on a property’s commercial
status at the time of the writ when determining whether the
foreign sovereign’s property is “in the United States,” as the
other general condition of section 1610(a) requires. See
Argentina Br. 21 (citing F.G. Hemisphere, 455 F.3d at 589).
But the requirement that the property be in the United States
goes directly to the domain of the court’s remedial order itself.
Cf. NML, 573 U.S. at 142 (noting that a “writ of execution . . .
can be served anywhere within the state in which the district
                                18
court is held” (quoting 12 Wright & Miller, Federal Practice
and Procedure § 3013 (alteration in NML))). More to the point,
even the Fifth Circuit case Argentina cites made clear that the
two general requirements—“used for a commercial activity”
and present “in the United States,” 28 U.S.C. § 1610(a)—are
independent, with the “absence of either prong [being] fatal to
the § 1610 executional immunity exception,” F.G.
Hemisphere, 455 F.3d at 591. And, when describing the “used
for a commercial activity” requirement at issue in this case, the
Fifth Circuit reiterated, in line with circuit precedent, that the
relevant question was whether the property “has been used for
a commercial activity in the United States.” Id. (emphasis
added).

     Finally, Argentina worries that a totality-of-the-
circumstances approach would “open the door to a commercial
use entirely in the past (even pre-filing) abrogating the
execution immunity of a foreign sovereign’s property.”
Argentina Br. 40. But, just as they need to steer clear of relying
on the purely future commercial uses of concern to the Second
Circuit, district courts examining the totality of the
circumstances should avoid finding speculative or aberrational
commercial uses, or uses in the distant past, sufficient to satisfy
the “used for a commercial activity” requirement. Both the
Fifth and Ninth Circuit analyses described above are sensitive
to this concern. The fact remains that, in enacting the FSIA,
Congress “shifted the responsibility for making determinations
about foreign sovereign immunity from the Executive Branch
to the Judiciary,” Grenada, 768 F.3d at 84, with the House
Report specifically explaining that courts were to “have a great
deal of latitude in determining what is a ‘commercial activity’
for purposes of [the FSIA],” H.R. Rep. No. 94-1487, at 16. In
accordance with Congress’ aims, we have confidence that
district courts will carefully apply the totality-of-the-
circumstances approach in each case to determine whether a
                              19
property may fairly be characterized as “commercial” for
purposes of attachment.

                      CONCLUSION

     Because the district court applied the incorrect legal
standard, we vacate and remand for the district court to
determine whether, at the time of filing, the totality of the
circumstances supported characterizing the R Street property
as one “used for a commercial activity” and, if so, whether any
of Argentina’s other defenses bar attachment of its property.

                                                   So ordered.
