30 F.3d 148

MIKVA, Chief Judge,
dissenting:
The majority’s standard for differentiating between those entities that are “foreign states” and those that are “agencies or in-strumentalities” of foreign states under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330, 1602-11, is attractive on administrability grounds. But I fear that in formulating their interpretation my colleagues have placed efficiency concerns — and perhaps their international policy preferences — above the apparent meaning of the statute. Because this ease requires us to interpret Congress’s enactment, and not to devise common-law rules, I think the majority’s approach is insufficiently deferential to the legislature. I therefore — reluctantly— dissent.
Before discussing the FSIA itself, it bears mentioning that another court — the United States District Court for the Southern District of New York (Mishler, J.)- — -has already decided the issue at hand. On April 28,1989, Judge Mishler rendered a default judgment in this case against the Bolivian Air Force, La Fuerza Aerea Boliviana (“La Fuerza”). That judgment subsequently survived an appeal grounded upon plaintiffs alleged fraudulent misrepresentations to the court. Transaero, Inc. v. La Fuerza Aerea Boliviana, 24 F.3d 457 (2d Cir.1994). As a necessary element of the original default judgment, Judge Mishler found that La Fuerza, “an instrumentality of the Republic of Bolivia,” received proper service of process under FSIA § 1608(b), which applies only to “an agency or instrumentality of a foreign state.” 28 U.S.C. § 1608(b). Although it did not decide the issue, the Second Circuit acknowledged Judge Mishler’s finding on appeal. 1994 Westlaw 197941 at n. 1.
Although I agree with my colleagues that Judge Mishler’s ruling that service was proper does not preclude us from finding to the contrary, see maj. op. at 150 n. 1, such a finding would clash with the prevailing Second Circuit law on the facts of this case. Admittedly, the absence of analysis in Judge Mishler’s and the Second Circuit’s opinions limits their precedential effect on this issue. Nonetheless, a reversal here creates a disagreement in the result. We tell the parties that the statute compels one result; federal courts in another jurisdiction tell the same parties that the same statute compels the opposite result. Between us, we have thoroughly muddled the law. This is the functional equivalent of a circuit split between our Circuit and the Second; such tension should be avoided if possible.
This tension would cause me far less concern were I convinced by the majority’s interpretation of the FSIA. I am not. Despite the majority’s able argument, the FSIA and its legislative history suggest no conclusive presumption that a military entity is “a foreign state” and not “an agency or instrumentality” thereof. Instead, the statute lists three factors that define “agency or instrumentality.” 28 U.S.C. § 1603(b). The only disputed factor in this case is that the entity must be “a separate legal person.” Id. § 1603(b)(1). The House Report amplifies the meaning of this phrase: an agency or instrumentality may be “a department or ministry which acts and is suable in its own name.” H.R.Rep. No. 94-1487, 94th Cong., 2d Sess. 15-16 (1976); see maj. op. at 152, for a lengthier quote. This suggests to me that any presumption — let alone the conclusive presumption the majority adopts — is disfavored. Instead, every foreign entity starts out on the same footing, and a court must decide whether the particular entity is a separate legal person — that is, whether it “acts and is suable in its own name.” I suspect the majority is right that most foreign military entities are not legally separate from their sovereign states, but I think it is contrary to the statute to cast this suspicion in terms of a rule.
Nothing in the language of the statute or in the remainder of its legislative history casts doubt upon the House Report’s definition of “separate legal person.” But the majority sweeps aside this definition with its speculation that an agency or instrumentality must be a commercial, as opposed to a public, enterprise. Maj. op. at 151. This distinction is nowhere to be found in the statute or legislative history. Indeed, the distinction seems inapt, because the FSIA explicitly creates an exception to the general sovereign immunity of foreign states and their agencies and instrumentalities for “commercial activity,” 28 U.S.C. § 1605(a)(2), but the statute in no way indicates that a similar test determines “agency” status. The FSIA waives immunity depending on the nature of the activity on which the lawsuit is based, not the nature of the government entity against which the suit is brought. In contrast, for secondary matters (service of process, venue, attachment of property, and punitive damages) the FSIA does distinguish based on the identity of the defendant — it distinguishes between a foreign state and its agencies and instrumentalities. See 28 U.S.C. §§ 1391, 1606,1608,1610. These are separate distinctions, with different consequences. Yet the majority assumes that the “two categories of actors ... correspond to the ... two categories of acts.” Maj. op. at 151. Absent some concrete evidence of statutory intent, I think this is a dangerous assumption.
As its statutory evidence, the majority points to one of the venue provisions of 28 U.S.C. § 1391(f), permitting suits against an agency or instrumentality “in any judicial district in which the agency or instrumentality is licensed to do business or is doing business,” 28 U.S.C. § 1391(f)(3), but permitting suits against a foreign state in the United States District Court for the District of Columbia. 28 U.S.C. § 1391(f)(4). What the majority neglects to mention is that § 1391(f)(3) is not exclusive. If the agency or instrumentality is not “doing business,” it may be sued “in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.” 28 U.S.C. § 1391(f)(1). The venue provision simply recognizes that many agencies and instru-mentalities are commercial enterprises that may conveniently defend suits where they do business. It in no way establishes that an “agency or instrumentality” must always be a commercial enterprise.
The same response applies to the majority’s assertion that the House Report “is at odds with itself,” maj. op. at 152, because its examples of agencies and instrumentalities tend to be commercial enterprises, while at the same time it seems to adopt a broader general definition of “agency or instrumentality.” Again, that many, even most, agencies and instrumentalities may be primarily commercial in nature does not prove that all must be. If Congress meant for commerciality to be a defining characteristic, it could have said so. Instead, Congress said “separate legal person.” 28 U.S.C. § 1603(b)(1). In sum, I see no good reason to focus on a distinction between commercial and non-commercial activities as the touchstone of juridical separateness.
Then what does it mean to be legally separate? The House Report gives us a sketchy definition: an entity that “acts and is suable in its own name.” In keeping with several district court precedents, the court below looked at contracts executed by La Fuerza, apparently in its own name, and at previous lawsuits in which La Fuerza was mentioned by name (admittedly, an ambiguous indicator), to find that La Fuerza is a separate legal person. Cf. Bowers v. Transportes Navieros Ecuadorianos, 719 F.Supp. 166, 170 (S.D.N.Y.1989); Unidyne Corp. v. Aerolineas Argentinas, 590 F.Supp. 398, 400 (E.D.Va.1984). Although I would prefer more extensive factfinding with regard to La Fuerza’s activities — e.g., property ownership, previous contracting history — I think the district court was on the right track.
I think the language, policy, and legislative history of the FSIA suggest that commercial activity is not the ultimate touchstone for FSIA analysis. It makes more sense to engage in a wider factual inquiry into the actions of the entity to determine whether it is a separate legal person. Because I think the district court was basically correct, and because I would prefer to avoid incongruity with the law of this case in the Second Circuit, I respectfully dissent from the majority opinion.

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