Volume III - Annexes 305-330

INTERNATIONAL COURT OF JUSTICE
CERTAIN IRANIAN ASSETS
(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES OF AMERICA)
REJOINDER
SUBMITTED BY
THE UNITED STATES OF AMERICA
May 17, 2021
ANNEXES
VOLUME III
Annexes 305 through 330

ANNEX305

TITLE 3-THE PRESIDENT
EXECUTIVE ORDER 10444
.Alln:NDLI£NT- OF ExECUTIVE ORDER No.
8809 • OF JUNE 28, 1941, Esl'ABLISHING
THE GoOD CONDUC'r MEDAL, AS
ALIENDEI> BY ExECUTIVE ORDER NO.
9323 :: OF MARCH 31, 1943
Executive Order No. 8809 of June 28,
1941, establlsbmg the Good Conduct
Medal, as amended by Executive Order
No. 9323 of March 31, 1943, is hereby
further amended to read as !ollows:
"By vu-tue of the authority vested in
me as President of the Unit-ed states and
as commander m Clnef of the Armed
Forces of the United Stat€5, it JS ordered
as follows:
"There lS hereby established the Good
Conduct Medal, which shall mclude
suitable appurtenances. Such medal
may be awarded for exemplary beha.Vlor,
efficiency, and fidelity, under such regulations
as the Secretary of the Army and
the Secretary of the Air F-orce shall
severally presence, to those enlisted
men of the Army of the Unit-eel Stat-es
and the United States Air Force who on
or after August 21, 1940, had or shall
have honorably completed three years of
active Federal military service, or- who
after December 7, 1941, have or shall
have honorably .served one year of active
Federal military service while the
United Stat-es 1S at war, or who at the
time of-the termination of theu- active
Federal IIiilitary service have not prev1-
ously been awarded a Good Conduct
Medal and have completed a penod of
honorable service of less than three
years i! any part of that penod of service
has been performed after June 27, 1950:
Provided, that no peISons, ~ept persons
separated from the active Faderal
military service by reason of physical
disability mcurred-m line of duty, shall
be awarded such medal for a penod of
service of less than one year."
DwxGHT D. ElsElra:OWER
THE WHITE HOUSE,
April 10, 1953.
[F. R. Doer Sa-3250~ Filed. Aprr 10, 1953;
4:37 p. m.}
;13 CFR. 1943 eum. supp., s F. R. 3209.
2 3 CFR, 1943- CUm.. Supp.; 8 F. R. 4226.
EXECUTIVE Of?DEI? 10445
REsERVmG CI:Rl'hIU ~\?:DS ACQUIREI>
UNDER TrrLE m OF nm B.Unan:.\DJom:
s F,Ul!.1 TEmur.r ACl' AS P.m,:s Ol?
NAl'IONAL Fol!ESl'S
WHEREAS certn.ln lands within the
e,cterlor boundo.rles of national forests
have been acqUired•by the United States
through exchnnse under authority of
"Title m of the Bankhe3d-Jone::. Farm
Tenant Act, 50 Stat. 525, n.s nmcndcd ('l
U. S. C. 1010-1013) nnd
WHEREAS it appears that all such
lands are suitable for nntlonal-forest
purposes, and that it would be in the
public interest to reserve such lands n.s
parts of the nntionn.l forests within whlch
they a.re Iocnt.ed: and
WHEREAS it ls contcmplnt-ed that;
other lands within the e..._tcrlor boundaries
of na.tionnl forests wm be acqUircd
:Crom time to time by the -Unit-ed Sbtes
through e.-.cbnnge. under authority o! the
sa1d Title m of the Bankhead-Jones
Farm Tenant Act; and
WHEREAS it appears that it would be
in the public interest to rc:;ervc nll of
such-lands that are sult:lble for nationalforest
purposes n.s parts of the national
forests withln which they nreloetitcd:
NOW THEREFORE, by virtue of the
authority vest-ed in me by cection~24 of
the net of Mnrch 3, 1891, 2G Stn.t. 1095,
1103, as amended ClG U. S. c. 4'11) the
act of June 4, 1897, 30 stat. 34. 36 ClG u. s. c. 473) and the sa!d Title m of
the Bankhead-Jone;, Farm Tenant Act,,
as amended, and upon recommendo.tion
of the Secret:iry of Asrlculture, it is
hereby- ordered ns follows:
Except as to ltmds within the Sta.te.:,
of Arizona, Cnllfornla.. Colorndo, Id:lbo,
Montana, New Mexico, Ore.;on, W~mgton,
and Wyominz, (1)' nil bnds
within the e.-..terlor boundarle;; of national
forests whlch hnvc been ncqulred
through exchange by the United states
under the authority or the :wJd Title m or the Bankhend-Jones Fann Tenant
Act, ns nm.ended, o.re hereby o.dded t.o
a.nd reserved as parts of the re:;pective
national forests within whlch they nre
locat.ed; and C2) nil lands within the
exterior bonndarlcs of nntionnl, forests
hereafter acquired by the United states
through exchange under such authority
shall, uPOn det.ermin:l.t!on by the Dc-
(COnttnued on p. 2071)
CONTENTS
THE PRESIDENT
E:tccutive Orders
Amendmellt of Executive DrdEr
No. 8Z09 or Jane 28, 1941, estab~
the Good Conduct Medal.
as nmcnded by Executive Order
No. 9323 of March 31, 1943 _ _
Re£enin.'.! cert31n. l::!.Ilds acquired.
under 'Iitle.m of the Banl:headJones
Farm Tem.nt Act as p:uts of national forests _______ EXECUTIVE AGENCIES
Agnculfure Department
See Animal Indu.,--try Bure,.u; Production
and 11.Iarketing AdmmIstration.
Air Force Department
Rules and' resuiat10I1S:
Decorations and awards; good
ncootned,_ uc_t _m_ed_al_; _e_cll_to_n al
Alien Property, Office of
?1ot!ce::i:
Ve:;tinz orders. etc.:
Ccrtrun G2ml3ll. nationcls_
OZ3ld, Wayne Noburu___
Animal Industry Bureau
Rule. tl.Ild regulations:
Rog cholera, smne plague. and
other communicable SWU1e
dkcases; changes in areas
uqmuarr ae;n,;t::imnethde mbeac _au_s_e o_f_ v_es_fc -
Army Department
Rules and ~tions:
Decorations, medals, ribbons,
and slmllar devices; i;ood conduct
medal; editorial note_
Civil Aeronautics Administration
Rule.:. and rezu]n.tlons:
Danger areas; alteratfon_s __
Civil Aeronautics Board
Propo~ed rule~=
Classification and exemption of
certrun operations conducted
ebsyta nbilrl schamrreienr.,s_ f_o_ r th_em_ili_taz_ y
Civil Service Commission
Rules nnd resu]atlons:
Estcivepe tfsoernvsf cfe.r_ om_ t_he_ c_om_pe_ t i-
2069
Pc.;;e
2'J69
2U6!J
2081
2095
2095
2il72
2081
2077
2037
2071
Annex 305
Tuesday, April 14, 1953.
<Department Circular No. 750, Revised)
If such bond is m order for payment by
the paying agent, the owner or coowner,
upon establishmg h1S 1dentity to the
satisfaction of the paying agent and
upon &gmng the r~quest for payment
·and adding h1S home or busmess address,
may receive immediate payment at the
appropriate redemption value, as provided
m §§ 315.22 and 315.23. Even
though the request for payment bas been
-signed, or SJgned and certified prior to
the presentation of the bond, nevertheless
the paying agent lS reqwred to
.establish to its satisfaction the identity
of the owner or coowner requesting payment
and such paying agent may reqwre
the owner or coowner to sign again the
request for payment. No charge will be
made to the owner. This procedure is
authonzed notwithstanding the provimons
of any Treasury Department circulars
offenng the bonds for sale and
notwithstanding any 10Structions which
may be prmted on the bond and IS optional
with mdividual owners. Th1s procedure
is not applicable to deceased
owner cases or other cases m which
documentarY evidence is reqwred or to
partial -redemption -cases.
Compliance with the notice, public
procedure, and effective date reqwrements
of the AdmmlStrative Procedure
Act (Pub. Law 404, 79th Cong., 60 Stat.
237) lS found to be unpracticable with
respect to these amendments. They are
matters of fiscal policy and it was deemed
madvxsable tcYmake determmations \vith
respect thereto at an earlier date.
(Sec. 22, 49 Stat. 41, as amended; 31 U. S. c.
757c)
G. M. HUMPHREY,
Secretary of the Treasury.
[P. R. Doc. 53-3181; Filed, Apr. 13, 19.53;
18:51 a, m.]
Chapter 1v'-Fore1gn Assets Control,
. Department of the Treasury
PART 500-FoREIGN AsSETS COlffROL
REGULATIONS
MISCELLANEOUS AlUENDl\lENTS
The Foreign Assets Control Regulations,
31 CFR 500.101-500.808, copies of
which. as amended, are available on request
from the Foreign Assets Control,
Treasuzy Department. Washmgton 25,
D. c. or the Federal Reserve Bank of
New York, 33 Liberty st., New York 45,
N. Y. are hereby amended as follows:
I. section 500.201 Cb> CU is·amended
to read as ·follows:
§ 500.201 Transactions involving designated,
foreign countries or their nationals;
effective date. • • •
Cb) Cl> All dealings m, mcluding,
without limitation, transfers, withdrawals,
or exportations of, any property or
evidences of mdebtedness or evidences of
ownershlp of property by any person subJect
to the Jurisdiction of the United
St-ates; and
2. Section 500.204 is amended to read
as follows:
FEDERAL REGISTER 20i9
§ 500.204 Importation of and dealings
in certam merc1uzndfSe. Cn> Except
as speclfical]y authorized by the
Secretary of the Treasury (or nny person,
agency, or Instrumentality designated
by him) be means or resufutlons,
or rullngs, instructions, licenses, or
otherwise, no person subject to the jurisdiction
of the United Stat.cs mny purchase,
transport, import, or otherwise
deal in or engnge in nny tranrocUon
with respect to any merchandise outside
the Unlt~d states it such merchandise
is:
cu Merchandise the country o! origin
of which is Chinn ce.-..cept Formosa> or
North Korea. Articles whlcb nre the
growth, produce, or -manufacture of
Cluna, (except Formosa> or North Korea
shall be deemed for the purposes ol'.
this chapter to be merchancll£c whose
countrY of origin is Chinn. (except Formosa>
or North Korea notwltbstancllng
that they may ha.ve been subjected to
one or any comblnatlon or the followmg
m another country- (1) Gracllng; cm
testing; (Ill) checking; Clv) shreddlng;
<v> slicing; {vi) peellng or splitting:
cvm scrapmg; Cvl.il) cleaning; CL'>>
wash.Ing; Cx> soak.l.ng; Cxi) drying; C."dl)
cooling, chllllng, or re!rlgeratlng; (xiii)
ro:i.stlng; (xiv) steaming; CJ..- .- v> coobng;
<:-."Vi> curing; <xvll) comblnlng of fur
skins into plates; (xvl.il.) blending; Cxlx)
flavoring; <xx> preserving; Cxxi> pick.Ung;
(xxll) smoking; Cxxill) dressing;
Cxxiv) salting; Cn-v> dyeing; C."'i:Xlli>
bleaching; Cxx"ViI> ~; Cxxviii>
packing; Cxxix> canning; CXXX) labeling;
Cxxxi) cardJng; C,.'>xxlI) combmg;
CxxxilU pressing; C=iv> any pro.:ess
simllar to nny of the for~olng. Any
article wheresoever manufactured shall
be deemed for the P.11rPoses of this chapter
to be merchandise whose country of
origin 1s Chinn (except Formosa.) or
North Korea, if there shall have been
added to such article any embroidery,
needle point, petit point, lace, or any
other article of adornment whlch JS the
product o! China <except Formosa> or
North Korea notwithstanding that such
addlUon to the merchandJse may have
occurred 1n a country other than Cbllla.
ce.-..cept Formosa> or North Korea.
<2> Merchandise specified 1n th1S subparagraph
unle.s such merchandise is
imported dlrectly from a country named
as excepted for that typa of merchandise:
7'1/PC of mcrc11a11dl.:ro Ercepefcns "
(1) All merchnndlse, not cltewhcro cpccUled 1n this para- uono.
graph, 1.C prior to D.!c. 17, 19SO, lmporto
thereof into tho United Smte:; "ero chlcfiy
or Cblncro origin within tho meanlns ot
this chnptcr.
(ll) Anlseecl nnd nnlsced o1L--------------------•-- None.
(ill) Antiques, Chlncso typo (other thnn Chlnc::o porcc- Uone.
lllln whtch qunllfle:. within tho prov1!;1oll!l o!
par. 1811 or tho Tori.II Act or 1930 and wb!Ch
18 decorntc<l with tho nnnorllll bearlnsn,
crest:;, mono:;rnmn, cyphcro, or b:idgc:; or European
or Amcrlcnn !omlllc:i or 1;Ccl0Uc:i or
bearing motl.Cs b~ed thereon, or with Europenn
or American poUUcal, mcmorlnl, or
JIIQzonlc cccncs or dcvlcC3 or with European
or American llgurcs, Ghlp:i, or other cccn!l'.l, or
With motl!G or J.nzcrlptton:i In Eni;;lh;b, L:!Un,
(1v) Bnmbooo, r snpnliyt_ o t_h_er_ _E_u_ro_p_e_a_n_ t_a_n_zu_a_g_c_) _• _________ Nono.
(v) Beverages. Chl.ncsc typo_______________________ None.
(Vl) Braids, stmw _______________________________ It!lly, Jap:in.
(vil) Bristles, bog, Aslntlc (other tbnn Indlnn) 1Dcludlns Nono.
such brJ.Gtles In knots or other procc::.zcd condition.
(vlll) Bristles, hog, dyed, lncludlnrr lllleh brl!.Uc::; In blob None.
or other proc=d condition.
((xIx) ) cCansrhpmete rwe_o_ol_, _'_1_'1_b_et_a_n_ _ty_p_o__ _____" _'_<_:_-_-_-_-_-_--_-_-_-_-_-_-_-_- Inmonne. .
(xi) Cn:;slo ______________________________________ Ac::oc1nted. ctntes O! Cambod!a,
L:im nnd Vietnam (formerly
:i:nown as IndoCfilna),
IndonesJn.
((xxllll)l ) CDBEruSglas , oClbLln-e-i;-o- -t-y-p-o-_ -_-_-_--_-_-_-_--_-_-_-_--_-_-_-_--_-_-_-_--_-_-_- NNoonnoe..
(xiv) Firecrackers.__________________________________ Nono.
(xv) Floor coverings, sr= and ctrow, lncludlns cco:,ra.:::i Japan.
mots lllld £qUorc:..
(xvi) Foodstuas, Chlnc:ac t,po___________________________ nano.
.:xvll) FUr skins:
Go3t nnd kid..------------------------------- .Argentina, Ethiopia (1nclud-
wease._________________________________ Ca1nDagd Ell.r itrea)' Iran, Iraq.
(xvW) Goll nuts, including tnnnlo acid.. ___ .. _____ Uonc.
(xix) Ginger root, candled or otberwlto prcp:ired or pre- None.
served.
(xx) Rll.lr, human:
Ro.w, Asiatic------------------------------ Nono.
Nets nnd n!)ttln&------'---------------- nano.
Annex 305
2080 RULES AND REGUl:ATIONS
'l'ype of merchandise - Exceptions
(xx!.) Bats, unfinished:
PMaalnmil al eHafe_ m__p_ _(_A__b_a__c_a_)_-__-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-__-_- MNoenxelc. o,Plllll.pplnes.
straw _______________________________________ Brazil, Domlnlcan Republlc,
-(This subcilvlsion does not. include hats of the Italy, Japal), Phlllpplnes.
following types: L!ndu, Llntao, Macorra, Panama,
Pandan. Raffia, Toqullla, and Yeddo.)
(xxii) Mecilclnes, prepared, Chinese tnJc ______________ None.
(xxUI) MenthoL-------------------·-······-··-------- None.
((xxxxlvv)) SMopush"ok r-a- J-a· p•o ·n·l-c·a·-, ·i-n·c-l-u-d·i·n-g- -R-u--tt-n-_- -_-_-_-_-_-_-_-_-_-_-_-__-_-_- NNoonnee..
(xxvl) Tea, Chinese typ8-----·-~-···-········-·-·····-- Formosa. •
{xxvll) Tung oU •••••••••••••••••••••••••••• ·-······-··-- Argenttna, Brazil, Paraguay.
.<_~vl11) Walnuts-~----··---------------------------------- France, Iran, I~y, Turkey.
(3) Merchandise specified m th1s sub:a
paragraph-if such merchandise IS located
in -or is transported from or through
Hong Kong, Macao, or any country not
in the authorizea trade territory.
Type of l\!e~chandisc
(1) Agar Agar.
(ll) •AJitlmony.
(111) Btunboo:
Bags, baskets and other manufac•
tures excluding furniture.
Poles and sticks.
(lv) Bismuth.
(v) Camphor;
Natural.
Oil.
,<vl) Carpet wool.
(vll) Cn'tpcts.
(vlli) Ohlnaware. ,
(Ix) Citronella oll.
(x) Cotton manufactures:
Embroideries and laces.
Embroidered and lace artlc1es.
Handkerchiefs.
Wearlng apparel.
(xi) Cotton waste.
{xll) Earthenware.
(xlll) Feathers and" down, Asiatic.
(xiv) Hair, animal.
(xv) Hardwood manuractures, Including
furniture.
(xvi) Hats, paper.
{xvll) Hides, buffalo, Including India water
buffalo.
(xvlll) Ivory manufactures.
(x!X) Linen manUfacturcs:
Handkerchiefs ..
EmJ)rolderles and laces.
.Embroidered and'Iace articles.
Other articles exclucilng wearing
apparel.
(XX) Molybdenum.
(xx!) Qu!cksllver.
(xxll) Ramie.
(xxlll) Rugs.
(xxlv) Seagrass and straw manUfactures, ex~
udtng fioor covering.
(xxv) Sesame, oil and Siled.
(xxvl) Shoes, Ieatber•soled with nonleather
uppers.
(xxvll) Silk:
Raw and manufactures.
Waste.
(xxvlll) Skins, deer and goat.
(xxlx) stones, semiprecious .and manufactures
thereof excluding Jewelry.
(xxx) Tapestries (Including needlework tapestries)
. , .,_
(xxxi) Tapioca and tapioca flour.
( xxxl1) Tin :
Alloys.
Bars, blocks and pigs.
ore.
(xxxlll) Tungsten ores and concentrates.
3. Section 500.409 IS amended to read
as follows:
§ 500.409 Certain payments to designated
foreign countries and nationals
through third coILntries. Section 500.201
prohibits any request or authorization
made by or on behalf of a bank or other
person withm the United states to a
bank or other person outside of the
United States as a result of which request
or authorization such latter bank or person
makes a payment or transfer of
credit either directly or 1ndirectly to a
designated national.
4. Section 500.533 (b) (1) is amended
to read as follows:
.§·500.533 Transactions .incident to
exportations to designated countries.
• * •
Cb> Cl> The .fl.nancmg of any transaction
from any blocked account;
- 5_ Section 500.536 IS amended· to read
as follows:
§ 500.536 Certain transactions with
respect to merchandise affected by
§ 500.204. Ca)\With respect to merchandise
the unportation of which 1s prohibited
by .§ 500.204, all Customs transac•
tions are authonzed except the followmg;
(1) Entry for consumption (including
any appra1Sement entry or entry of goods
imported m the malls, regardless o:t
value, .but excluding other informal
entr1es)-
C2> -EJ:Jtry for unmedia~ exportation;
(3) Entry for transportation and ex•
portaf;ion;
(4) Withdrawal from warehouse;
(5) Transfer or withdrawal from a.
foreign.trade zone; or
(6) Marupulation or manufacture in
a warehouse or m a foreign-trade zone.
Cb) Paragraph Cal of this section is
mtended solely to allow cert.am restricted
disposition of merchandise
which 1s unported without proper au.
thorization. Paragz,aph (a) of this section
does not authonze the purchase or
importation of any merchandise.
Cc> The purchase outside the United
states for unportatlon mto the United
states of merchandise specified in
§ li00.204 Cother than merchandise to
which §.500.204 <a> -Cl> IS applicable)
and the unportation of such merchandise
mto the United states <including transactions
listed 10 paragraph Ca> of this
section) are authonzed if the merchandise
IS slupped to the United States directly
or on a: througlibill of lading from
Hong Kong, Japan. Taiwan (Formosa>
or the Republic of.Korea, provided that
there IS presented to the collector o:C
customs 10 connection with such unportation
the onginal of an appropriate
certificate of ongm as defined~in para•
graph (d) of this section.
Cd) A certificate or origin ls appropl'la
te for the purposes of this section only if
(1) It is a certificate of origin which
(i) In the case of merchandise shipped
from Hong Kong Js issued by tho Honir
Kong Department of commerce nnd Industry
and termed a "comprehonsivo-,,
certificate of origin;
(ill In the case of merchnndlso
shipped from Japan 1s issued by tho
Japanese Ministry of Intcrnnt!onnl
Trade and Indus.tnro
Cill> In the case of merohandlso
shipped from Taiwan <Formosa) Js issued
by the Ministry of Economic Mairs of
the Republic of China, and
<iv> In the case of morchnndlso
shipped from South Korea 1s issued by
the Ministry of Commerce mid Industry
of the Republic of Koren, and
C2> It bears a statement by tho lssuJnir
agency referring to the Foreign Assots
control Regulations and stating that tho
certlficatE:_ has been issued under Pl'O•
cedures agreed upon wlth the United
States Government.
6. Section 500.53'1 is amended to rend
as follows:
§ 500.537 Financing o/ merc1ia11dfsc
affected by § 500.204, (a) To tho oxtont
that the financing of merchnncUso is prohibited
by § 500.204, such finnnoinir by
any bank ls authorized except ns provided
in paragraph Cb) of this scotlon,
{b) This section docs not nutuorlzo
financing (inclucllng the opening,· ndvJs.
mg, or confirmln[t of, or any trnnsaotion.
under, any letter of credit> in connoctlon
with:
Cl) Any merchandise outside of tho
United states to which § 500,204 <n> (l> 1
ls applicable;
<2> The shipment or any merohnndlso
to.the United States unless
m The purchase of the merchandise
is authorized by § 600.536 <o> nnd
(ll> The bank is ndvlsed in w1•ltlng
by the person seeking the flnnnolng of
such merchandise that tho commodity
ls one to which the certiflcntioh p1·0-
cedure specified ln § 600.536 (c) applies
and that the purchase nnd Importation
of the merchandise are authorized by
that paragraph, or
<3> The shipment of any mo1·clmndise
from or through Hong Kong, Maeno,
or any country not 1n tho nuthorh:cd
trade territory, except as p1·ovlded 1n
subparagraph (2) of this parnurnph,
7. Section 500.808 Is nmcndcd to l'cnd
as follows:
§ 500:BOB Customs procedures,• merchandise
specified fa § 500,204. (n)
With respect to merchandise specified in
·§ 500.204, whether or not such mor-<:
handlse has been imported 1nto tho
United States, collectors of customs
shall not accept or allow any•
' Cl) Entry for consumption Unoluding
any apraisment entry or entry of goods
unported in the malls, regnrdloss or
value, but excluding other Informal
entries)
(2) Entry for immediate exportation:
(3> Entry for -transportation nnd OX•
portatlon;
<4> Withdrawal from wnrohouso:
(5) Transfer or withdrawal from n
foreign-trade zone: or
Annex 305
Tuesday, April 14, 1953
(6) Mampulation or manufacture in
a warehouse or m a foreign-trade zone,
until either:
~ CD A specific license pursuant to this
chapter JS presented,
<ii) Instructions from the Foreign
Assets Control, either directlY or through
the Federal Reserve Bank of New York,
authonzmg the transaction are received,
or
<iii> The ongmal of an appropnate
certificate of ongm as defined m
§ 500.536 Cd) is presented.
<b> Whenever a specific license is pre-.
sented to a collector of customs m
accordance with tlus section, two additional
legible copies of the entry, with-
drawal or other appropriate document
with respect to the merchandise mvolved
shall be filed with the collector of customs
at the port where the transaction
is to take place_ Each copy of any such
entry, withdrawal or other appropriate
document, mcluding the two additional
copies, shall bear plamlY on its face the
number of the license pursuant to which
it 1S filed. The ongmal copy of the specific
license shall be presented to the collector
m respect of each such transaction
and shall bear a notation m ink by the
licensee or person presenting the license
showmg the descnption, quantity, and
value of the merchandise to be entered,
withdrawn or othermse dealt with. ThlS
notation should be so placed and so written
that there will eXISt no possibility of
confUSlilg it with anytlung placed on the
license at the time of its 1SSUance. If the
license m fact authorizes the entry, withdrawal
or other transaction with regard
to the merchandise the collector, or other
authorized customs employee, shall
verify the notation by sigmng or mitialmg
it after first assurmg himself that
it accuratelY describes the merchandise
it purports to represent. The license
shall thereafter be returned to the person
presenting it and the two additional
copies of the entry, withdrawal or other
appropnate document shall be forwarded
,, by the collector to the Federal Reserve
Bank of New York.
<c> (1) Whenever the ongmaI of au
appropriate certificate of origin as defined
m § 500.536 Cd) lS presented to a.
collector of customs m accordance with
-- this section, two additional legible copies
of the entry, withdrawal or other appropriate
document. with respect to the
merchandise mvolved shall be filed with
the collector of customs at the port where
the transaction is to· take 'Place. Each
copy -of any such entry, withdrawal or
---other appropriate document, mcluding
the two additional copies, shall bear
plam]y on its face the following statement:
"This document lS presented under
the provis10ns of § 500.536 Cc) of the
Foreign Assets Control Regulations."
The original of the certificate of origin
shall not be returned to the person presenting
it. It shall be securelY attached
to one of the two additional copies required
by this subparagraph and both
additional copies <one of which will have
the certificate of origin attached) shall
be promptly forwarded by the collector
to the Federal Reserve Bank of New
York. -J
FEDERAL REGISTER
(2) If the orlsinal of nn appropriate
certificate of origin is properly presented
to a collector of customs with respect to
a transaction which fs the first of a series
of transactions which may be allowed in
connection therewith under subdivlslon
<ill) of paragraph <a> (6) of this section
<as, for example, where merchandise bas
been entered in a. bonded warehouse and
on appropriate certiflcate of origin 1s
presented which relates to all or tho
merchandise entered therein but the import-
er desires to withdmw only p:u-t or
the merchandise in the first transaction>
the collector shall take up the
original of the appropriate cerWlcate or
origin and promptly forward it to tho
Federal Reserve Bank of New York together
with two additional copies or the
\Vithdmwal or other appropriate document
relating to the transaction pursuant
to subparagraph cu or thls
paragraph. In addition, the collector
shall endorse his pertinent records so l!S
to record what merchllndlse fs covered
by the appropriate certificate of orfein
presented. The collector may thereaftCl"
allow subsequent authorized transactions
without presentation of a further certificate
of origin. In this case, however.
the collector shall, with respect to each
such subsequent transaction, demand
two additional copies of each withdrawal
or other appropriate document, which
copies shall be promptly forwarded by
the collector to the Federal Reserve B:mk
of New York with an endorsement
thereon reading: "This document has
been accepted pursunnt to § 500.808 Cc>
<2> of the Foreign Assets Control Rezulatlons."
Cd) Whenever a person shall present
an entry, withdrawal or other appropriate
document affected by this section and
shall assert that no specific Foreign
Assets control license or appropriate certificate
of origin as defined in § 500.536
Cd> ls req_ulred in connection therewith,
the collector o! customs shall withhold
action thereon and shall ndvise such person
to comm.unlcnte directly with the
Federal Reserve Bank or New York to
request that Instructions be issued to the
collector to authorize him to to.kc action
-with regard thereto.
(Sec. 5, 40 Stat. 415. ns nmended: 50 u. s. C.
App. 5; E. 0. 9193, July G, 1D42, 7 P. n. 6205,
3 era. 1943 cum supp., E. o. 9989, Aue. 20,
1848, 13 F. R. 48111, 3 CFR, 1948 Supp.)
[SEAL] G. M. HULtPmu:Y,
Secretary of t1w TreasuriJ.
(F. R. Doc. 53-3206; Filed, Apr. 13, 1053;
8:55 a. m.}
TITLE 32-NATIONAL DEFENSE
Chapter V-Dcpartment of the Army
PART 578-DECORATIONS, MEDALS, Rmcons,
.AND Sn.IILAR D!a'ICES
GOOD CO?ID'D'Cl' ?.IEDAL
EDITORIAL NOTE: For order aliccting
the regulations in § 578.27, sec Executlve
Order 10444, supra, amending Executive
Order 8809 of June 28, 1941, cst:lbllsh•
ing the Good Conduct Mednl.
2031
Chapter VII-Department of the
Air Force
PART 878-DzcOMTIONS A.'ID Aw.uu>s
GOOD CONDUCT UED.\L
EDrrollL\L Non:: For order afi'ectfng
the regulations in § 878.46, see Executive
Order 10444, supra, amending Executive
Order 8809 or June 28, 1941, establishmgthe
Good Conduct Medal.
TITLE 38-PENSIONS, BONUSES,
AND VETERANS' RELIEF
Chapter I-Veterans' Adm1msfration
PMT 3-VE'l'EllANS CLAllJS
Panr 4-Dw>E?mENTS Al<'D B~iEFICIARIES
CL.I\I?JS
?.!ISCELLAUEOUS A?JEND?.IE:N'l'S
1. In •Part.. 3, § 3.0 (a) is amended to
read as follows:
§ 3.0 World Wars I and II and service
on or after June 27, 1950, and pnor to
tl,e delimlttng date contained m Public
Law ZS, 8Zd Congress. <a) The beginning
and termination dates of World
War I a.re April 6, 191'7, and November
11, 1918, but as to service in R~
the ending date 1s April 1. 1920. Except
as to emergency officers retirement pay,
reenlistment in the mll!tary or naval
service on or after November 12, 1918.
. nnd before July 2, 1921 CAugust 28, 1919,
ns to service in the United States Coast
Guard> where there was pnor active
service between April 6, 191'7, and November
11, 1918, shall be considered as
World War I~ervice under the laws providing
compensation or •pension for
World War I veterans and their dependents.
0 • • • •
2, In § 3.1, paragraph Cs> is amended
to rend as follows:
§ 3.1 Persons included in the acts m
addition to commtSS1oned officers and
enlisted men. " " •
Cs> Coast Guard. Active service rendered
by omcers and enlisted men of the
United States Coast Guard on and after
January 28, 1915, while serving under the
jurisdiction of either the Treasury Department
or the Navy Department, is
compensable and pensionable on the
same basis as active service in the Army,
Air Force, Navy, or Marine Corps with
the ru.:ceptfon that reenlistments on and
after No\·ember 12, 1918, and before
Aui;ust 28, 1919, where there was pnor
active service between April 6, 1917 and
November 11, 1918, shall be CODSldered
World War I service. See § 3.0 fa>
Provided, That no award of compansat!
on under Public Law 182, 77th Co~"ress •
to former personnel o! the United States
Co:i.st Guard who served on or after January
28, 1915. and prior to- July 2, 1930,
shall be effective prior to the date of
receipt on or after JulY 18. 1941. of an
acceptable application, formal or mformal,
as required in claims generallY.
Annex 305
ANNEX306

Weinstein v. Islamic Republic of Iran, 624 F.Supp.2d 272 (2009)
624 F.Supp.2d 272
United States District Court,
E.D. New York.
Susan WEINSTEIN, individually, as
co-administrator of the Estate of Ira
William Weinstein, and as natural
guardian of plaintiff David Weinstein,
et al., Plaintiffs-Judgment Creditors,
v.
The ISLAMIC REPUBLIC OF IRAN,
et al., Defendants-Judgment Debtors.
No. Misc. 02-237.
I
June 5, 2009.
Synopsis
Background: Judgment creditors moved for appointment
of receiver, pursuant to federal and New York law, to
sell property located in New York and owned by Iran's
national bank, to satisfy judgment in underlying action against
Republic oflran, Iranian Ministry oflnformation, and several
senior Iranian officials. Judgment debtors moved to dismiss.
Holdings: The District Court, Wexler, J., held that:
veil piercing authorized by Terrorism Risk Insurance Act
(TRIA) did not violate Treaty of Amity between United States
and Iran;
attachment and sale of property did not constitute taking
under Fifth Amendment or Treaty of Amity; and
attachment and sale of property did not violate Algiers
Accords.
Motion to appoint receiver granted and motion to dismiss
denied.
Attorneys and Law Firms
*273 Jaroslawicz & Jaros, LLC, by Robert Tolchin, Esq.,
New York, NY, for Plaintiffs-Judgment Creditors.
Berliner, Corcoran & Rowe, L.L.P., by Thomas G. Corcoran
and Laina C. Wilk, Esqs., Washington, D.C., Rosen
Greenberg Blaha, LLP, by John N. Romans, Esq., New York,
NY, for Defendants-Judgment Debtors.
MEMORANDUM AND ORDER
WEXLER, District Judge.
Plaintiffs-judgment creditors ("plaintiffs") move for the
appointment of a receiver pursuant to Federal Rule of Civil
Procedure ("FRCP") 69 and New York Civil Practice Law
& Rules ("CPLR") § 5228(a) to sell property located at 135
Puritan Avenue, Forest Hills, New York (the "Property")
owned by Bank Melli to satisfy their judgment in the
underlying action against defendants-judgment debtors the
Islamic Republic of Iran ("Iran"), the Iranian Ministry of
Information, and three senior Iranian officials. Plaintiffs
assert that the Property is subject to attachment under the
Terrorism Risk Insurance Act of2002 ("TRIA"), Pub. L. No.
107-297, 116 Stat. 2322, 28 U.S.C. § 1610 note. Bank Melli
moves to dismiss this proceeding and to stay the appointment
of a receiver pending resolution of its motion to dismiss.
Plaintiffs oppose Bank Melli's motion to dismiss.1 The Court,
having granted Bank Melli's motion to stay, now denies Bank
Melli's motion to dismiss and grants plaintiffs' motion to
appoint a receiver.
I. BACKGROUND
For purposes of this proceeding, the relevant background has
been summarized sufficiently in the Court's earlier decision
in Weinstein v. Islamic Republic of Iran, 299 F.Supp.2d 63
(E.D.N.Y.2004) ("Weinstein I"). and will not be repeated
here, except as necessary to this decision. In Weinstein L
this Court held that Bank Melli's assets were not, at that
time, "blocked" under §§ 202 and 203 of the International
Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. §§
1701, 1702, and, therefore, not subject to attachment under
the TRIA. Weinstein L 299 F.Supp.2d at 74-75. However,
as plaintiffs assert, on October 25, 2007, the United States
Department of Treasury, Office of Foreign Assets Control
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Weinstein v. Islamic Republic of Iran, 624 F.Supp.2d 272 (2009)
("OFAC") designated Bank Melli as a proliferator of weapons
of mass destruction under Executive Order 13,382. See Exec.
Order 13,382, 70 Fed.Reg. 38,567 (June 28, 2005). Executive
Order 13,382, which the President issued pursuant to the
IEEPA, provides that "all property and interests in property"
of persons listed in the order or subsequently designated
by the Treasury Department "that are in the United States,
that hereafter come within the United States, or that are or
hereafter come within the possession or control of United
States persons, are blocked and may not be transferred,
paid, exported, withdrawn *274 or otherwise dealt in." Id.
( emphasis added). As a result of Bank Melli's designation,
according to plaintiffs, the Property is blocked and subject to
attachment under the TRlA, which authorizes attachment of
the "blocked assets" of not only a terrorist party, such as Iran,
but the assets of its agencies and instrumentalities, such as
Bank Melli. In this respect, TRlA § 201(a) provides:
Notwithstanding any other provision of law, and except
as provided in subsection (b ), in every case in which a
person has obtained a judgment against a terrorist party
on a claim based on an act of terrorism, or for which a
terrorist party is not immune under section 1605(a)(7) of
title 28, United States Code, the blocked assets of that
terrorist party (including the blocked assets of any agency
or instrumentality of that terrorist party) shall be subject
to execution or attachment in the aid of execution in order
to satisfy such judgment to the extent of any compensatory
damages for which such terrorist party has been adjudged
liable.
TRIA § 201(a), 116 Stat. at 2337 (emphasis added). Thus,
plaintiffs claim, they are entitled to enforce their judgment
against the Property because the Property is a "blocked
asset" under the TRlA and Bank Melli is an "agency or
instrumentality" of Iran.
Although Bank Melli concedes that the Property is a "blocked
asset" under the TRlA and that Bank Melli is an "agency
or instrumentality" oflran, it argues: (1) that the attachment
and sale of the Property would violate the "Treaty of Amity"
between the United States and Iran, see Treaty of Amity,
Economic Relations, and Consular Rights, U.S.-Iran, Aug.
15, 1955, 8 U.S.T. 899, T.I.A.S. No. 3853, 1957 WL 52887
("Treaty of Amity"); (2) that the attachment and sale would
constitute a "taking" not for public purpose and without
just compensation in violation of the Treaty of Amity and
the Fifth Amendment of the United States Constitution; (3)
that the Treasury Department's blocking of Bank Melli's
assets, including the Property, violates the "Algiers Accords,"
see Declaration of the Government of the Democratic and
Popular Republic of Algeria, Jan. 19, 1981, reprinted in 20
I.L.M. 224 (1981) ("Algiers Accords"); and (4) that a Court
order permitting the attachment and sale would put the United
States in further breach of the Algiers Accords.
IL DISCUSSION
A. Bank Melli's Motion to Dismiss
I. Treaty of Amity Article III(])
Bank Melli argues that the attachment and sale of the Property
would violate Article IIl(l) of the Treaty of Amity, which
provides:
Companies constituted under the applicable laws and
regulations of either High Contracting Party shall have
their juridical status recognized within the territories of the
other High Contracting Party. It is understood, however,
that recognition of juridical status does not of itself confer
rights upon companies to engage in the activities for
which they are organized. As used in the present Treaty,
'companies' means corporations, partnerships, companies
and other associations, whether or not with limited liability
and whether or not for pecuniary profit.
Treaty of Amity art. III(l). According to Bank Melli, the
Treaty of Amity "adopts an established principle of customary
international law," namely, that the separate juridical status of
an Iranian company must be respected. Memorandum of Law
in Support of Bank Melli's Motion to Dismiss ("Bank Melli
Mem."), at 15. In Bank *275 Melli's view, this principle
prohibits the statutory veil-piercing authorized by TRlA §
20l(a). This "presumption of separateness," according to
Bank Melli, may only be overcome under circumstances
specified in First National City Bank v. Banco Para El
Comercio Exterior de Cuba, 462 U.S. 611, 103 S.Ct. 2591,
77 L.Ed.2d 46 (1983) ( "Bancec"). Under Bancec, to pierce
the corporate veil distinguishing a foreign state and from
its agencies and instrumentalities, a judgment-holder must
show that the agency or instrumentality is "so extensively
controlled by [the foreign state] that a relationship of principal
and agent is created" or that recognizing the entity as separate
"would work fraud or injustice." See id. In other words,
under Bancec, plaintiffs cannot recover on their judgment
against defendants by executing on Bank Melli's blocked
assets unless they overcome the presumption that treats Iran's
agencies and instrumentalities as entities juridically separate
from Iran.
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Weinstein v. Islamic Republic of Iran, 624 F.Supp.2d 272 (2009)
Plaintiffs argue that the veil piercing authorized by TRIA §
201(a) obviates application of Bancec and does not violate
the Treaty of Amity. This Court agrees. Neither the language
nor purpose of Article III( 1) of the Treaty of Amity supports
Bank Melli's position. As Bank Melli points out, the Treaty
of Amity between Iran and the United States is one of a
number of friendship, commerce, and navigation ("FCN")
treaties negotiated by the United States following WWII.
Bank Melli Mem. at 3. As plaintiffs point out, "most if not
all of these FCN treaties contain [corporation] provisions
substantively identical to Article III(l)." Plaintiff-Judgment
Creditor's Memorandum in Opposition to Bank Melli's
Motion to Dismiss and Reply in Further Support of Motion
for Appointment of a Receiver Pursuant to CPLR § 5228(a),
at 7-9 ( citing treaties). As the Supreme Court has recognized,
"the primary purpose of the corporation provisions of the
Treaties was to give corporations of each signatory legal
status in the territory of the other party, and to allow them to
conduct business in the other country on a comparable basis
with domestic firms." Sumitomo Shoji Am., Inc. v. Avagliano,
457 U.S. 176, 185-86, 102 S.Ct. 2374, 72 L.Ed.2d 765
(1982). Indeed, "the purpose of the Treaties was not to give
foreign corporations greater rights than domestic companies,
but instead to assure them the right to conduct business on
an equal basis without suffering discrimination based on their
alienage." Id. at 187-88, 102 S.Ct. 2374. There is nothing
in the language or purpose of Article III(l) of the Treaty of
Amity that precludes the veil-piercing authorized by TRIA §
201(a).
In any event, to the extent that TRIA § 201(a) may conflict
with Article III(l) of the Treaty of Amity, the TRIA would
"trump" the Treaty of Amity. See United States v. Yousef,
327 F.3d 56, 110 (2d Cir.2003) (recognizing Supreme Court
holdings that subsequent "legislative acts trump treaty-made
international law"). Indeed, the Supreme Court has held
explicitly that "when a statute which is subsequent in time [to
a treaty] is inconsistent with a treaty, the statute to the extent
of conflict renders the treaty null." Breard v. Greene, 523 U.S.
371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (internal
quotations omitted); see also Whitney v. Robertson, 124 U.S.
190, 194, 8 S.Ct. 456, 31 L.Ed. 386 (1888) (holding that if
treaty and federal statute conflict, "the one last in date will
control the other").
As for the applicability of Bancec, Judge Victor Marrero
of the United States District Court for the Southern District
of New York, in a persuasive analysis, concluded that
the plain language and legislative history of TRIA §
201(a) demonstrate a clear expression to make agencies and
*276 instrumentalities substantively liable for the debts
of their related foreign governments, overriding the Bancec
presumption of independent status for the agencies and
instrumentalities of terrorist parties. See Weininger v. Castro,
462 F.Supp.2d 457, 484-87 (S.D.N.Y.2006). For the same
reasons, this Court concludes that TRIA § 201(a) obviates
the application of Bancec to a determination of whether
the blocked assets of Bank Melli (admittedly an agency or
instrumentality of a terrorist party) are available satisfy the
judgment against defendants ( terrorist parties). That there was
no FCN treaty at issue in Weininger (Cuba does not have
such treaty with the United States) is not significant, given
this Court's determination that Article III( 1) of the Treaty of
Amity does not preclude the veil piercing authorized by TRIA
§ 201(a).
Accordingly, this ground for dismissal is rejected.
2. Treaty of Amity Article IV(2) and the Fifth Amendment
Bank Melli further argues that the attachment and sale would
constitute a "taking" not for public purpose and without just
compensation in violation of Article IV(2) of the Treaty
of Amity and the Fifth Amendment of the United States
Constitution. Article IV(2) of the Treaty of Amity provides,
in relevant part: "Property of nationals and companies of
either High Contracting Party ... shall not be taken except
for a public purpose, nor shall it be taken without the
prompt payment of just compensation." Treaty of Amity art.
IV(2). The Fifth Amendment prohibits the taking of"private
property ... for public use, without just compensation." U.S.
Const. amend. V.
The parties primarily dispute whether there is a "taking" for
Fifth Amendment purposes. Plaintiffs rely on the decision in
Paradissiotis v. United States, 304 F.3d 1271 (Fed.Cir.2002),
for their argument that there is no "taking" of Bank Melli's
Property under the circumstances. In that case, the plaintiff,
Paradissiotis, was a Cypriot national with close affiliations
to the government of Libya. Based on those affiliations,
OFAC listed him as a "Specially Designated National" under
OFAC's "Libyan Sanctions Regulations." As a result of that
designation, Paradissiotis was treated "as an agent of the
government of Libya" and his assets within the United States
were "frozen." Id. at 1273. Among Paradissiotis's frozen
assets in the United States were stock options in a Delaware
corporation. Due to the blocking order, and OFAC's denial
of his requests for a license to sell or exercise his stock
options, Paradissiotis was unable to sell or exercise the
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Weinstein v. Islamic Republic of Iran, 624 F.Supp.2d 272 (2009)
stock options. Eventually those options expired and became
worthless. Paradissiotis brought suit in the Court of Federal
Claims against the United States, asserting that the freezing
of his assets and the destruction of the value of his stock
options was an unconstitutional "taking. "2 The Court of
Federal Claims rejected this argument, and the Federal Circuit
affirmed, stating:
On several occasions, this court has addressed Fifth
Amendment takings claims raised by persons or entities
that have been adversely affected by actions *277
taken for national security reasons to freeze the assets
of, or prohibit transactions by, foreign entities, and on
each occasion we have held that the actions have not
violated the Takings Clause. With specific reference to the
Libyan Sanctions Regulations, we have held that those
regulations substantially advance the national security of
the United States and that the frustration of contract rights
resulting from the application of those regulations does not
constitute a Fifth Amendment taking.
The principle underlying those decisions was articulated
by the Supreme Court in the Legal Tender Cases (Knox v.
Lee), 79 U.S. (12 Wall.) 457, 551, 20 L.Ed. 287 (1870),
where the Court explained:
A new tariff, an embargo, a draft, or a war may
inevitably bring upon individuals great losses; may,
indeed, render valuable property almost valueless.
They may destroy the worth of contracts. But whoever
supposed that, because of this, a tariff could not be
changed, or a non-intercourse act, or an embargo
be enacted, or a war be declared? ... [W]as it ever
imagined this was taking private property without
compensation or without due process of law?
While takings law has changed significantly since
those words were written, the language used by the
Supreme Court has often been quoted, and the principle
remains sound. Thus, valid regulatory measures taken
to serve substantial national security interests may
adversely affect individual contract-based interests and
expectations, but those effects have not been recognized
as compensable takings for Fifth Amendment purposes.
As applied to economic sanctions such as orders
blocking transactions and freezing assets, that principle
disposes of any suggestion that the United States could
freeze Libyan assets in this country only if it were
prepared to pay the cost of any losses resulting from the
freeze. Economic sanctions would hardly be sanctions if
the foreign targets of the sanctions could simply stand
in line to be compensated for the losses those sanctions
caused them.
Paradissiotis, 304 F.3d. at 1274-75 (citations omitted).
Moreover, the Federal Circuit noted that Paradissiotis's loss
of the stock options was the entirely foreseeable result of his
own voluntary conduct:
Mr. Paradissiotis's stock options were in no jeopardy until
1990, when he took the step that ultimately resulted in
his loss-serving as a director of a Libyan-controlled
corporation. At that time, the consequences of his
conduct were entirely foreseeable. The Libyan Sanctions
Regulations had been in effect for four years, it was clear
that his position made him subject to those regulations, and
it was clear that exercising his stock options would be a
prohibited transaction under the regulations. The pertinent
date for considering Mr. Paradissiotis's expectations was
1990, when he took the step that subjected him to
regulations that otherwise would have had no effect on
him. As of that date, he had clear notice of what the
consequences of his actions would be. Mr. Paradissiotis
took the risk-a big risk, in light of the high visibility of
the Libyan sanctions regime-that his involvement with
a Libyan-controlled corporation would result in loss of
access to his United States assets. The fact that his risktaking
turned out badly for him does not render it a taking
in violation of the Fifth Amendment.
*278 Paradissiotis, 304 F.3d. at 1276 (citation omitted).
This Court agrees with plaintiffs that, based on the reasoning
in Paradissiotis. the blocking and attachment of the Property
in the circumstances presented here does not constitute a
"taking" of Bank Melli's assets under the Fifth Amendment.
As plaintiffs argue, Bank Melli's property in the United
States was placed in jeopardy because the bank itself acted
to proliferate weapons of mass destruction, which in turn
lead to its designation and the blocking of its assets-a
designation it does not challenge here. Like Paradissiotis,
Bank Melli had "clear notice of what the consequences of
[its] actions would be"-i.e., designation and the blocking
of its assets, thereby subjecting its assets to execution under
the TRlA. Indeed, since enactment of the TRlA in 2002,
one of the risks and consequences of a designation under
IEEPA is that the designated entity's assets will be subject
to execution under the TRlA. Bank Melli presumably knew
this well, since it was subject to TRlA litigation in this Court
shortly after the TRlA was passed. See Weinstein L 299
F.Supp.2d 63. Bank Melli took the risks that its involvement
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Weinstein v. Islamic Republic of Iran, 624 F.Supp.2d 272 (2009)
with Iran's proliferation of weapons of mass destruction
would result in the very consequences it now faces under
the Iranian sanctions programs. That those consequences may
have led to the attachment of its Property-a blocked asset
-does not make it a taking under the Fifth Amendment. See
Paradissiotis, 304 F.3d. at 1276 ("The fact that his risk-taking
turned out badly for him does not render it a taking in violation
of the Fifth Amendment."). For similar reasons, there is no
"taking" under the Treaty of Amity.
Accordingly, this ground for dismissal is rejected. 3
3. Algiers Accords
Bank Melli also argues that the blocking of the Property
violates the Algiers Accords. As detailed in Weinstein I, on
November 14, 1979, President Carter issued Executive Order
12,170 in response to Iran's seizure of the U.S. Embassy in
Tehran, Iran and the resulting hostage crisis. In Executive
Order 12,170, the President directed:
I hereby order blocked all property and interests in
property of the Government of Iran, its instrumentalities
and controlled entities and the Central Bank of Iran which
are or become subject to the jurisdiction of the United
States or which are in or come within the possession or
control of persons subject to the jurisdiction of the United
States.
Exec. Order 12,170, 44 Fed. Reg. 65,729 (Nov. 14, 1979).
Eventually, on January 19, 1981, the United States and Iran,
through the efforts of the government of Algeria, reached an
agreement, commonly known as the Algiers Accords, ending
the hostage crisis. Under the Algiers Accords, the United
States agreed, inter alia, to "restore the financial position
of Iran, insofar as possible, to that which existed prior to
November 14, 1979," and to "commit itself to ensure the
mobility and free transfer of all Iranian assets within its
jurisdiction." Algiers Accords, 20 I.L.M. at 224. The United
States further agreed (with some exceptions) to "arrange,
subject *279 to the provisions of U.S. law applicable prior
to November 14, 1979, for the transfer to Iran of all Iranian
properties which are located in the United States and abroad."
Id. at 227. As further detailed in Weinstein I, pursuant to the
Algiers Accords, most Iranian assets were unblocked. See
Weinstein I, 299 F.Supp.2d at 67-68.
According to Bank Melli, the Property has been an asset
within the United States prior to November 14, 1979,
making the blocking by Executive Order 13,382 a breach
of the Algiers Accords. This argument is without merit.
As plaintiffs argue, and as noted above, under the Algiers
Accords, the United States had obligations, inter alia, to
"ensure the mobility and free transfer of all Iranian assets
within its jurisdiction," to "commit itself to ensure the
mobility and free transfer of all Iranian assets within its
jurisdiction," and to "arrange ... for the transfer to Iran of
all Iranian properties which are located in the United States
and abroad." These obligations were fulfilled by the series
of executive orders and regulations releasing restraints on
Iranian property, presumably including the Property. See
Weinstein I, 299 F.Supp.2d at 67-68. Presumably, Bank Melli
was then free to use and dispose of the Property as it saw
fit, at least until the Property was blocked on October 25,
2007. Bank Melli fails to explain how the United States
has violated the Algiers Accords by subsequently imposing
blocking sanctions on Iranian property (including property
oflran's agencies and instrumentalities) based on subsequent
Iranian conduct (including the conduct of its agencies and
instrumentalities) or how an order of this Court permitting the
attachment and sale would put the United States in further
breach of the Algiers Accords.
Accordingly, these grounds for dismissal are rejected.
Based on the Court's rejection of the grounds raised by Bank
Melli, the motion to dismiss is denied.
B. Plaintiffs' Motion to Appoint a Receiver
As for plaintiffs' motion to appoint a receiver, the Court
concludes that the Property is subject to attachment under the
TRIA. Accordingly, plaintiffs' motion for the appointment of
a receiver is granted.
Ill. CONCLUSION
For the above reasons. Bank Melli's motion to dismiss is
denied and plaintiffs' motion to appoint a receiver is granted.
Nevertheless, the Court stays this proceeding during the
pendency of an appeal by Bank Melli, should it choose to
appeal. The Clerk of Court is directed to administratively
close this matter without prejudice to the right to reopen
following the expiration of the time to appeal or, if an appeal
is taken, upon the determination of the appeal.
SO ORDERED.
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Weinstein v. Islamic Republic of Iran, 624 F.Supp.2d 272 (2009)
All Citations
624 F.Supp.2d 272
Footnotes
1 By letter (docket number 72), plaintiffs seek leave to submit a one-page surreply, purportedly to correct a misstatement
in Bank Melli's reply papers. The request is granted. In addition, the Court notes that the United States Department of
Justice has declined to make a submission on the issues raised by the parties, despite an invitation from the Court.
2 Paradissiotis originally brought an action in the United States District for the Southern District of Texas challenging the
denial of a license to sell or exercise the options and asserting, inter alia, a Fifth Amendment takings claim. Paradissiotis,
304 F.3d. at 1273. The district court granted summary judgment dismissing his action, including his takings claim, just
two days before the stock options expired. Id. The Fifth Circuit affirmed, except as to the takings claim, holding that the
Court of Federal Claims had exclusive jurisdiction over that issue. Id. at 1273-74.
3 Bank Melli also argues that attachment and sale of the Property will violate Treaty of Amity Articles IV(1 ), IV(4), and V(1)
by failing to treat "Iranian companies ... in the same manner as U.S. companies, that is without discrimination and without
interference into their internal affairs and property interests." Bank Melli Mem. at 20. Bank Melli offers virtually no support
for this argument. Accordingly, this ground for dismissal is rejected.
End of Document © 2021 Thomson Reuters. No claim to original U.S.
Government Works.
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ANNEX307

Weinstein v. Islamic Republic of Iran, 299 F.Supp.2d 63 (2004)
299 F.Supp.2d 63
United States District Court,
E.D. New York.
Susan WEINSTEIN, individually, as CoAdministrator
of the Estate of Ira William
Weinstein, and as natural guardian of
plaintiff David Weinstein, et al., Plaintiffs,
v.
The ISLAMIC REPUBLIC
OF IRAN, et al., Defendants.
The Bank of New York, Petitioner,
V.
Susan Weinstein, individually, as
Co-Administrator of the Estate
of Ira William Weinstein, and as
natural guardian of plaintiff David
Weinstein, et al., Respondents.
No. Misc.02-237.
I
Jan. 13, 2004.
Synopsis
Background: American bank brought declaratory judgment
action, seeking clarification of the rights to bank accounts
belonging to three Iranian banks, which the widow and
estate of an American citizen, killed in a suicide bombing in
Jerusalem, sought to attach under Terrorism Risk Insurance
Act (TRIA), after award of judgment, 184 F.Supp.2d 13,
in their wrongful death action, under Foreign Sovereign
Immunities Act (FSIA), against the Islamic Republic oflran.
Holding: The District Court, Wexler, J., held that accounts
were not "blocked assets" within meaning of TRIA.
Ordered accordingly.
Attorneys and Law Firms
*63 Pillsbury Winthrop LLP by: Leo T. Crowley and Daniel
Z. Mollin, Esqs., New York City, for Petitioner Bank of New
York.
Westerman Ball Ederer Miller & Sharfstein, LLP by: Jeffrey
A. Miller and Philip J. Campisi, Esqs., New York City, for
Plaintiffs-Respondents.
Patterson Belnap Webb & Tyler LLP by: John D. Winter, Esq.,
New York City, for Respondent Bank Melli Iran.
Law Offices of Steven W. Kerekes by: Steven W. Kerekes,
Esq., Beverly Hills, CA, for Respondent Bank Saderat Iran.
John D. Ashcroft, Attorney General of the United States,
United States Department of Justice by: Anthony J.
Coppolino, Esq., Senior Trial Counsel, Civil Division,
Washington, DC, for United States.
MEMORANDUM AND ORDER
WEXLER, District Judge.
Petitioner Bank of New York ("BNY") brings this matter
for determination of the respective rights of respondents in
certain bank accounts maintained by BNY belonging to three
of the respondents-Bank Melli Iran ("Bank Melli"), Bank
Saderat Iran ("Bank Saderat"), and Bank Sepah Iran ("Bank
Sepah"), all of which are Iranian *64 banks ( collectively,
the "Banks"). The remaining respondents are the judgment
plaintiffs in the underlying action-decedent Ira Weinstein's
widow, children and the co-administrators of his estate
(the "plaintiffs"). Plaintiffs assert that the assets in the
Banks' BNY accounts are subject to attachment under the
Terrorism Risk Insurance Act of 2002 ("TRIA") § 201 and
available to satisfy plaintiffs' judgment in the underlying
action against the defendants-the Islamic Republic of Iran
("Iran"), the Iranian Ministry oflnformation, and three senior
Iranian officials (the "defendants"). The Banks argue that the
assets in their BNY accounts are not subject to attachment
under the TRIA. 1 The United States Department of Justice
("DOJ") submits a statement of interest in this matter, with a
declaration from the director of the Office of Foreign Assets
Control ("OFAC") of the United States Treasury Department
("Treasury Department"), asserting that the Banks' assets are
not subject to attachment under the TRIA.
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I. BACKGROUND
For purposes of this motion, the relevant background can be
summarized as follows.
A. The Underlying Action and Judgment
On February 25, 1996, United States citizen and New
York native Ira Weinstein was severely injured in a suicide
bombing by the Hamas terrorist organization in Jerusalem,
Israel. On April 13, 1996, Ira Weinstein died from those
injuries.
On October 27, 2000, plaintiffs filed a civil action for
wrongful death and related torts in the United States District
Court for the District of Columbia against defendants under
the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C.
§ 1605(a)(7).2 On February 6, 2002, the district court
entered judgment in plaintiffs' favor, finding that defendants
had provided tens of millions of dollars to Hamas for
the execution of terrorist attacks and had trained Hamas
terrorists in bomb-making and other related tactics, and
holding defendants liable to plaintiffs for approximately
$183.2 million, consisting of$33.2 million in compensatory
damages and $150 million in punitive damages. See Weinstein
v. Islamic Republic of Iran, 184 F.Supp.2d 13 (D.D.C.2002).
B. The Restraining Notices
On October 10, 2002, plaintiffs registered and filed their
judgment in this district *65 and served an information
subpoena with a restraining notice on BNY to aid in the
enforcement of the judgment. The October restraining notice
sought information about, and required BNY to restrain, the
accounts oflran and any instrumentality oflran maintained at
BNY. Pursuant to this notice, BNY identified and restrained
three accounts, one held by each of the Banks. BNY notified
the Banks of its action by letter and requested that they contact
legal counsel.
The Banks purportedly threatened legal action against BNY
if the restraints were not removed. In response, BNY released
the restraints on the accounts. Plaintiffs contend they were
never notified of the communications between BNY and
the Banks, of the existence of the subject accounts, or of
BNY's decision to lift the restraints without court order.
In addition, plaintiffs assert that BNY never responded to
plaintiffs' October 10 information subpoena.
On November 27, 2002, plaintiffs served a second
information subpoena and restraining notice on BNY,
following the November 26, 2002 passage of the TRIA,
Pub.L. No. 107-297, § 201(a), 116 Stat. 2322 (Nov. 26, 2002).
The restraining notice was similar in nature to the October
restraining notice, differing only with respect to references
to the TRIA. BNY again restrained the Banks' accounts and
notified plaintiffs of its action, identifying the accounts and
their balances as of December 3, 2002. In this respect, the
account balances were approximately $203,500 for Bank
Melli; $6,500 for Bank Saderat; and $19,000 for Bank Sepah.
After correspondence between plaintiffs and BNY, plaintiffs
served another information subpoena on BNY, and BNY
provided a response indicating that the account balances as of
December 13, 2002 were approximately $149,900 for Bank
Melli; $5,400 for Bank Saderat; and $12,100 for Bank Sepah.
According to plaintiffs, BNY acknowledged that all balance
decreases between December 3rd and December 13th would
be replaced.
C. The TR/A and Iranian Sanctions Programs
Section 20l(a) of Title II of the TRIA provides:
Notwithstanding any other provision of law, and except
as provided in subsection (b ), in every case in which a
person has obtained a judgment against a terrorist party
on a claim based on an act of terrorism, or for which a
terrorist party is not immune under section 1605(a)(7) of
title 28, United States Code, the blocked assets of that
terrorist party (including the blocked assets of any agency
or instrumentality of that terrorist party) shall be subject to
execution or attachment in the aid of execution in order to
satisfy such judgment to the extent of any compensatory
damages for which such terrorist party has been adjudged
liable.
TRIA § 201(a), 116 Stat. at 2337. The TRIA defines a
"blocked asset" as "any asset seized or frozen by the United
States under section 5(b) of the Trading With the Enemy Act
(50 U.S.C.App. 5(b)) or under sections 202 and 203 of the
International Emergency Economic Powers Act (50 U.S.C.
1701; 1702)." Id.§ 201(d)(2)(A), 116 Stat. at 2339.
As for the referenced provision of the Trading With the
Enemy Act, 50 U.S.C.App. § 5(b), the parties agree that it
does not apply to Iran; therefore, it does not apply to this
matter.
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On the other hand, §§ 202 and 203 of the International
Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. §§
1701 and 1702, do apply to Iran. These sections grant the
President of the United States, *66 inter alia, broad authority
to regulate foreign assets in appropriate circumstances:
(a)(l) At the times and to the extent specified in section
1701 of this title, the President may, under such regulations
as he may prescribe, by means of instructions, licenses, or
otherwise-
(A) investigate, regulate, or prohibit(
i) any transactions in foreign exchange,
(ii) transfers of credit or payments between, by, through,
or to any banking institution, to the extent that such
transfers or payments involve any interest of any foreign
country or a national thereof,
(iii) the importing or exporting of currency or securities,
by any person, or with respect to any property, subject to
the jurisdiction of the United States;
(B) investigate, block during the pendency of an
investigation, regulate, direct and compel, nullify,
void, prevent or prohibit, any acquisition, holding,
withholding, use, transfer, withdrawal, transportation,
importation or exportation of, or dealing in, or exercising
any right, power, or privilege with respect to, or
transactions involving, any property in which any
foreign country or a national thereof has any interest by
any person, or with respect to any property, subject to the
jurisdiction of the United States ....
50 U.S.C. § 1702(a)(l)(A), (B); see also id. § 170l(b)
("The authorities granted to the President by section 1702
of this title may only be exercised to deal with an unusual
and extraordinary threat with respect to which a national
emergency has been declared for purposes of this chapter and
may not be exercised for any other purpose.").
In 1979, President Carter exercised the authority granted in
the IEEPA against Iran. In this respect, on November 14,
1979, President Carter issued Executive Order ("EO") 12170
pursuant to the authority provided in the IEEPA, 50 U.S.C. §
1701 et seq., in response to Iran's seizure of the U.S. Embassy
in Tehran, Iran and the resulting hostage crisis. In EO 12170,
the President directed:
I hereby order blocked all property and interests in
property of the Government of Iran, its instrumentalities
and controlled entities and the Central Bank oflran which
are or become subject to the jurisdiction of the United
States or which are in or come within the possession or
control of persons subject to the jurisdiction of the United
States.
EO 12170, 44Fed.Reg. 65,729 (Nov. 14, 1979). The President
also ordered the Secretary of the Treasury Department to carry
out the provisions of the order. Id.
In response, the Treasury Department, through the OFAC,
issued the Iranian Assets Control Regulations ("IACR"), 45
Fed.Reg. 24,432, (Apr. 9 1980), codified at 31 C.F.R. Part
535. IACR § 535.201, in particular, provides:
No property subject to the jurisdiction of the United States
or which is in the possession ofor control of persons subject
to the jurisdiction of the United States in which on or
after the effective date Iran has any interest of any nature
whatsoever may be transferred, paid, exported, withdrawn
or otherwise dealt in except as authorized.
31 C.F.R. § 535.201. According to the DOJ, approximately
$12 billion in Iranian government bank deposits, gold,
and other property were blocked pursuant to EO 12170.
Declaration of R. Richard Newcomb, Director, OFAC
("Newcomb Deel.") ,i 9.
*67 In April 1980, the President issued EO 12205, which
prohibited specified financial transactions and the sale, supply
or transfer by persons subject to United States jurisdiction of
certain items to Iran. See EO 12205, 45 Fed.Reg. 24099 (April
7, 1980) (amended by EO 12211, 45 Fed.Reg. 26685 (Apr.
17, 1980)).
On January 19, 1981, the United States and Iran, through the
efforts of the government of Algeria, reached an agreement,
commonly known as the Algiers Accords, ending the crisis.
Under the Algiers Accords, the United States agreed, inter
alia, to "restore the financial position of Iran, insofar as
possible, to that which existed prior to November 14, 1979,"
and to "commit itself to ensure the mobility and free transfer
of all Iranian assets within its jurisdiction." Declaration of
the Government of the Democratic and Popular Republic of
Algeria. Jan. 19, 1981, para. A (Newcomb Deel., Exh. C).
Pursuant to the Algiers Accords, most Iranian assets were
unblocked. The Algiers Accords, several executive orders,
and OFAC regulations directed the marshaling and transfer
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of the majority of once-blocked assets to Iran and to escrow
accounts to facilitate settlement of claims involving Iran
under a claims settlement process provided for in the Algiers
Accords. Newcomb Deel. 'I] 12.3 One of these executive
orders was EO 12282, entitled "Revocation of Prohibitions
Against Transactions Involving Iran." EO 12282, 46 Fed.Reg.
7925 (Jan. 19, 1981). EO 12282 explicitly revoked, inter
alia, EO 12205 and EO 12211, but not EO 12170 nor
IACR § 535.201, which the parties concede have never
been expressly revoked or repealed. According to the DOJ,
IACR § 535.201 remains in effect for two reasons: (1)
some Iranian blocked property-primarily diplomatic and
consular property-remains in the United States, subject
to the blocking order and the IACR; and (2) the claims
settlement process before the Iran-U.S. Claims Tribunal at
The Hague, established under the Accords, has not been
completed. Newcomb Deel. '1] 13 & Exh. D (noting Treasury
Department report to Congress that $23.2 million in blocked
Iranian assets remain in United States, primarily diplomatic
and consular property).
To implement EO 12282, the OFAC repealed certain
provisions of the IACR and promulgated a "general license"
authorizing transactions with Iran, codified at 31 C.F.R. §
535.579.4 The general license provides:
(a) Transactions involving property in which Iran or an
Iranian entity has an interest are authorized where:
(1) The property comes within the jurisdiction of the
United States or into the control or possession of any
person subject to the jurisdiction of the *68 United
States after January 19, 1981, or
(2) The interest in the property of Iran or an Iranian
entity ( e.g. exports consigned to Iran or an Iranian
entity) arises after January 19, 1981.
31 C.F.R. § 535.579(a). According to the DOJ, transactions
authorized by this general license were no longer subject
to the blocking prohibition in IACR § 535.201. Indeed,
§ 535.502(c) provides that a "license authorizing a
transaction otherwise prohibited under this part has the
effect of removing a prohibition or prohibitions in Subpart
B from the transaction." 31 C.F.R. § 535.502(c). Thus, the
general license of§ 535.579(a) removed the prohibition of
§ 535.201.
Beginning in October 1987, further sanctions programs were
implemented regarding Iran. In this respect, on October 29,
1987, President Reagan issued EO 12613, pursuant to the
International Security and Development Cooperation Act
("ISDCA"), 22 U.S.C. § 2349aa-9, and 3 U.S.C. Title 301,
prohibiting Iranian imports, with certain exceptions. See
EO 12613, 52 Fed.Reg. 41940 (Oct. 29, 1987). EO 12613
specifies that it was issued solely in response to conditions
occurring after the conclusion of the Algiers Accords. EO
12613 § 5. Pursuant to EO 12613, on November 17, 1987,
OFAC issued the Iranian Transaction Regulations ("ITR"), 31
C.F.R. pt. 560, 52 Fed.Reg. 44076 (Nov. 17, 1987). The ITR
prohibited, inter alia, the importation of goods and services
from Iran and the exportation, reexportation, and sale or
supply of goods, technology or services to Iran. See 31 C.F.R.
§§ 560.201; 560.204.
On March 15, 1995, President Clinton issued EO 12957,
declaring a national emergency regarding actions and policies
of Iran and imposing additional sanctions against Iran,
invoking the authority of, inter alia, the IEEPA. See EO
12957, 60 Fed.Reg. 14615 (Mar. 15, 1995). EO 12957
prohibited, inter alia, the entry into or performance by a
United States person of a contract that includes responsibility
for the development of petroleum resources located in Iran or
a contract for the financing of the development of petroleum
resources located in Iran. Id. § l.
Then, on May 6, 1995, President Clinton issued EO 12959,
expanding the scope of the sanctions imposed in EO 12613
and EO 12957, invoking the authority of, inter alia, the
IEEPA and the ISDCA. See EO 12959, 60 Fed.Reg. 24757
(May 6, 1995). EO 12959 specifies that the measures were
taken solely in response to conditions occurring after the
conclusion of the Algiers Accords. Id. § 7. EO 12959,
prohibited, inter alia, new investment in Iran or property
owned or controlled by the government of Iran; import,
export, and reexport trade with Iran, the government of Iran,
or any entity owned or controlled by the government of Iran;
and financing or brokering transactions by a United States
person relating to goods or services oflranian origin or owned
or controlled by the government oflran. Id. § l.
On August 19, 1997, President Clinton issued EO 13059
to clarify and consolidate the provisions of EOs 12613,
12957, and 12959, once again invoking the authority of,
inter alia, the IEEPA and the ISDCA. See EO 13059,
62 Fed.Reg.44531 (Aug. 19, 1997). EO 13059 specifically
indicated that the measures were taken solely in response
to conditions occurring after the conclusion of the Algiers
Accords. Id. § 9. Thereafter, the ITR were amended to
reflect the broader prohibitions imposed by EOs 12613,
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12957, 12959, and 13059, regarding Iran and affecting goods,
technology, services and related financial transactions, and
new investment. See 31 C.F.R. §§ 560.204-.208.
*69 D. The Banks and their BNY Accounts
As for the Banks and their BNY accounts, Bank Melli
asserts that it is an Iranian corporation, founded in 1927
and organized under the banking laws of Iran. It claims to
have more than 2,600 branches in Iran, as well as branches,
representative offices and subsidiaries throughout the Middle
East, Europe, Asia and New York. The government of Iran
owns the stock of Bank Melli, although Bank Melli asserts
that it is run and managed as an independent corporate entity
by its board of directors, which appoints its officers and
oversees its policies and affairs. Bank Melli has a chairman,
who is also a managing director. The managing director
and all but one of the other directors is appointed through
a process culminating with the approval of Iran's "General
Meeting of the Banks." Affidavit ofGholamreza Rahi ("Rabi
Aff.") ,r 7. Bank Melli further asserts that its activities consist
primarily of loan and investment matters, letters of credit,
credit collections, and payment order transactions. In the
United States, however, Bank Melli claims to operate as
a representative office under New York State banking law,
performing only research about banking and financial issues,
not commercial banking activities, such as accepting deposits
and making loans. In this respect, Bank Melli asserts, its BNY
account is "operated pursuant to a license issued by OFAC
in 1996" and is "used to pay the operating expenses" of its
representative office in New York. Id. ,r 24 & Exh. K (copy
of license). The specific license, 5 issued by OFAC under the
authority of, inter alia, the IEEPA and the ISDCA, and signed
by Director Newcomb on March 29, 1996, authorizes Bank
Melli's representative office "to conduct activities related to
research in the United States" and "to act as a liaison with
United States holders of correspondent bank accounts." Id.
Exh. K. The restrained funds were wire transferred into Bank
Melli's account on November 25, 2002. Id. ,r 25.
As for Bank Saderat, it submits materials from an earlier,
unrelated federal court action in the Southern District
of California, Flatow v. Islamic Republic of Iran, No.
99-MC-250, indicating that it is an Iranian corporation,
founded in 1952 and organized under the banking laws
of Iran. These materials indicate that, as of 1999, Bank
Saderat had more than 3,000 branches in Iran, as well
as branches in the Middle East, Europe and New York.
The government of Iran owns the stock of Bank Saderat,
although Bank Saderat asserts that its operations are governed
by a board of directors, which appoints its officers and
oversees its policies and affairs. Its managing director and
other directors are appointed by the "General Assembly of
Banks." Declaration of Mohammedreza Moghadasi, dated
January 2000, ,r 12 (see Letter Brief of Steven W. Kerekes,
Counsel for Bank Saderat, Exh. E). Bank Saderat's activities
purportedly consist primarily ofloan and investment matters,
letters of credit, credit collections, and payment order
transactions. In the United States, however, Bank Saderat
operates as a representative office under New York State
banking law, meaning it does not provide any commercial
banking activities, such as accepting deposits and making
loans; rather, it provides information about Bank Saderat's
international banking services. Prior to 1997, Bank Saderat
purportedly had an agency license for the *70 New York
branch which allowed it to perform commercial banking
functions. As for its BNY account, Bank Saderat's account is
also maintained under a specific license issued to it by OFAC
on March 29, 1996, similar to the specific license issued to
Bank Melli. See Affidavit ofJeffrey A. Miller ("Miller Aff."),
Exh. L.
As for Bank Sepah's BNY account, that account is also
maintained under a specific license issued to it by OFAC on
March 29, 1996, similar to the specific licenses issued to Bank
Melli and Bank Saderat. Id.
According to the OFAC, the Banks are subject to the Iranian
sanctions programs discussed above. As the OFAC explains
-and the parties do not dispute-when the November 1979
blocking order was issued, "the Banks operated as 'agencies'
of their Iranian-headquartered offices, providing services
to other banks and businesses, primarily relating to trade
transactions." Newcomb Deel. ,r 25. After the 1979 blocking,
OFAC "issued specific licenses to the Banks authorizing
them to provide very limited services, relating mostly to
the processing of remittances to Iranian students in the
United States." Id. As a result, "[a]ccounts of the Banks that
existed in the United States prior to January 19, 1981 were
exempted by specific license from the marshaling and transfer
directives set forth in the Algiers Accords, executive orders
and OFAC regulations that otherwise would have applied." Id.
Following the Algiers Accords on January 18, 1981, OFAC
repealed certain provisions of the IACR and promulgated
the "general license" codified at 31 C.F.R. § 535.579, which
removed the prohibition of§ 535.201. Id. ,r 26 (citing 31
C.F.R. § 535.502(c), providing that a "license authorizing a
transaction otherwise prohibited under this part has the effect
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of removing a prohibition or prohibitions in Subpart B from
the transaction.").
Furthermore, the OFAC explains, after EOs 12957 and
12959 were issued in March and May 1995, respectively,
as discussed above, the Banks' activities were subject to
significant new restrictions. The OFAC notes that it has
determined that the Banks are "owned or controlled by the
Government oflran," id. ,r 28 & Exh. F ( citing 31 C.F.R. Part
560, App. A), making them subject to the prohibitions ofITR
§§ 560.201 and 560.204 regarding Iran and affecting goods,
technology, services and related financial transactions, and
new investment. Id. (citing 31 C.F.R. §§ 560.201; 560.204).
Moreover, U.S. banks, such as BNY, that hold accounts in
the name of Government of Iran-controlled entities, such
as the Banks, purportedly "require specific licenses from
OFAC to actively operate such accounts, as opposed to merely
posting interestto them." Id. (citing§§ 560.517; 560.319; and
560.320).
The OFAC maintains that the Banks' assets in the BNY
accounts are not "blocked assets" under the TRIA. As the
OFAC explains:
[T]he funds held by U.S. institutions, here, [BNY], are not
blocked, or frozen. Significantly, [the Banks] have a onetime
right to close their accounts and receive a lump sum
transfer of those funds. See 31 C.F.R. § 560.517(a)(3). By
contrast, in a blocking regime, neither the account-holder
nor the bank that is holding the blocked account has a
general authorization, such as the general license set forth
at section 560.517(a)(3), to transfer, or otherwise deal in,
those assets.
The effect of the prohibitions in sections 560.201 and
560.204 was to place the Banks in a position where
they could not conduct banking operations or receive
goods or services, of any kind, from a U.S. person,
although U.S. depository institutions were authorized to
*71 maintain the Banks' accounts, and pay interest to
them. See section 560.517(a)(3). However, on June 13,
1995, OFAC granted the Banks specific licenses allowing
them to cover overhead expenses and fulfill obligations in
existence on June 6, 1995 ("1995 licenses"). The Banks
were authorized to deposit funds and receive wire transfers
to specific operating accounts in order to fulfill obligations
in existence on June 6, 1995, but were not otherwise
authorized to engage in banking business after June 6,
1995. For example, they were not allowed to process
student remittances.
The Banks were given until March, 1996 to complete
transactions relating to obligations that pre-dated the
imposition of a broad trade embargo in May-June 1995.
In March, 1996, OFAC issued a further round of specific
licenses to the Banks ("1996 license"). The 1996 licenses
required the closing of accounts authorized by the 1995
licenses and allowed the Banks to open specified new
accounts for payroll and overhead expenses. The licenses
limited the activities which [the Banks] may engage,
namely, they can conduct research and act as a liaison
with United States holders of correspondent bank accounts.
In effect, the Banks are permitted to maintain skeletal
presence in the United States as "representative" offices.
(They had expressed to OFAC their concern that, if forced
to close operations entirely under the ITR. they would lose
their licenses to operate under New York banking law).
Although it is possible that the accounts licensed in
1995 included accounts that had once been subject to the
1979 blocking order, any accounts that the Iranian banks
established after January 19, 1981, or funds credited to
their accounts after January 19, 1981, were not blocked.
See 31 C.F.R. § 535.579. That is, transactions relating to
the Banks' accounts or funds regulated under the [ITR], 31
C.F.R. Part 560, but the accounts or funds are not seized or
frozen. Indeed, as noted, the general license set forth at 31
C.F.R. § 560.517 authorizes the closure of the accounts at
the request of the account party.
Newcomb Deel. ,r,r 28-31 & Exhs. H and I (citations and
paragraph numbers omitted).
II. DISCUSSION
The parties urge the Court to determine, on the record
presented, whether the TRIA allows plaintiffs to enforce their
judgment against the assets in the Banks' BNY accounts.
Plaintiffs argue that they are entitled to enforce their judgment
against these assets under the TRIA because the Banks'
accounts hold "blocked assets" and each of the Banks is an
"agency or instrumentality" of Iran. The Banks argue that
the assets in their BNY accounts are not "blocked assets"
and that, in any event, none of the Banks is an "agency or
instrumentality" of Iran under the TRIA. The government
supports the Banks' assertion that the Banks' assets in question
are not "blocked assets" under the TRIA and, therefore, not
subject to attachment under the TRIA.
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A. Blocked Assets
The parties do not dispute that the Banks' BNY accounts
are covered by the general license authorizing transactions
with Iran under IACR § 535.579, as the assets undisputedly
came within U.S.jurisdiction after January 19, 1981; and that
the accounts are authorized by the specific licenses issued in
March 1996. Rather, the parties dispute, inter alia, the effect
of the general and specific licenses on the status of the assets
in the Banks' accounts *72 for purposes of determining
whether they are "blocked assets" under the TRIA.
Plaintiffs argue that all Iranian assets which entered U.S.
jurisdiction on or after November 14, 1979 are "blocked
assets," and that all Iranian assets "regulated" or "licensed"
by the OFAC under the IEEPA are "blocked assets" under
the TRIA. In plaintiffs' view, although most Iranian assets
blocked in 1979 were returned to Iran following the Algiers
Accord in 1981, "all remaining assets and any thereafter that
became subject to U.S. jurisdiction continue to be 'blocked.'
Iran's use of the assets is regulated and authorized by U.S.
treasury license or licenses. The licenses do not eliminate
the fact that the assets are blocked, [they] only regulate their
use." Plaintiffs-Respondents' Supplemental Memorandum of
Law ("Pls.' Supp. Mem."), at 2; id. at 8 ("The assets remain
blocked, title remains with Iran, but the use of the assets are
regulated and authorized by [IACR § 535.579]."); PlaintiffsRespondents'
Memorandum in Reply to the Statement of
Interest of the United States ("Pls.' Reply Mem."), at 9
("[ A ]11 assets subject to an IEEPA blocking order are 'blocked
assets' within the meaning of TRIA, whether licensed or
not." ( emphasis omitted)). According to plaintiffs, the general
license vitiates the "practical effect" of EO 12170 (i.e., the
1979 blocking order) but not the "legal effect" of EO 12170
on the "legal status of Iranian assets in the United States."
Pls.' Reply Mem. at 9 ( emphasis omitted).
As for plaintiffs' argument that assets "regulated" or
"licensed" by the OFAC under the IEEPA are "blocked
assets," plaintiffs note that the ITR were promulgated in part
under the IEEPA; that the OFAC defines "blocking" as a
form of "controlling" assets; and that a "blocked account"
is an "account with respect to which payments, transfers,
withdrawals or other dealings may not be made except as
licensed by OFAC." Plaintiffs-Respondents' Memorandum
of Law Pursuant to CPLR § 5239 ("Pls.' Mem.''), at 22-
23 (quoting U.S. Treasury Dep't. Foreign Assets Control
Regulations for the Financial Community, at 4 (Dec. 27,
2002)). It follows, plaintiffs reason, that "a 'blocked' account
is an account regulated by OFAC" with transfers, withdrawals
and other dispositions carried out pursuant to an OFAC
license. Id. at 23 (emphasis in original). According to
plaintiffs, the ITR do not have any affect on EO 12170 (the
1979 blocking order) or IACR § 535.579 (the general license),
but merely "limit the effect of the general license contained in
§ 535 .579, by creating a new regimen to regulate transactions.
The ITR operates in parallel to, and does not in any way effect
[sic], the provisions of the IACR." Pls.' Supp. Mem. at 8.
Plaintiffs further claim that their interpretation of the TRIA
is supported by FSIA § 1610(f)(l)(A). That provision was
added to the FSIA in 1998 to authorize enforcement of a
judgment against a terrorist state by attachment or execution
of "any property with respect to which financial transactions
are prohibited or regulated pursuant to ... sections 202 and
203 of the [IEEPA] ... .'' 28 U.S.C. § 1610(f)(l)(A). At the
same time that provision was added to the FSIA, however,
Congress authorized the President to waive the requirements
of that provision; and the President immediately issued a
waiver on the grounds that the provision "would impede
the ability of the President to conduct foreign policy in the
interest of national security and would, in particular, impede
the effectiveness of such prohibitions and regulations upon
financial transactions.'' See Presidential Determination No.
99-1, 63 Fed.Reg. 59201 (Oct. 21, 1998). The President
issued a new waiver on October 28, 2000 as part of the
"Victim's *73 of Trafficking and Violence Protection Act
of 2000.'' See Presidential Determination No. 2001-03, 65
Fed.Reg. 66483 (Oct. 28, 2000).
Bank Melli argues, inter alia, that the blocking prohibition
imposed by EO 12170 and IACR § 535.201 was removed
on most Iranian assets pursuant to the Algiers Accords and
relevant executive orders and OFAC regulations, including
IACR § 535.579; that Bank Melli's account was never
"blocked" under the IACR because the account was not
opened until 1996 and the restrained funds were not placed
in the account until November 2002; and that the ITR is not
a "blocking program," as is the IACR, and therefore the ITR
does not "block" or "freeze" assets.
The government disagrees with plaintiffs' arguments and
largely agrees with Bank Melli's arguments. In the
government's view, the accounts do not hold "blocked assets"
because the accounts were established long after the 1979
blocking order (i.e., EO 12170) and long after the general
license in IACR § 535.579 removed the effect of that blocking
order on funds entering the Untied States after January 19,
1981; and the regulations under which the Banks operate
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their representative offices do not freeze or block assets, but
expressly authorize the Banks to close the accounts at the
request of the account holder. In addition, the government
disagrees with plaintiffs' argument that assets "regulated"
or "licensed" by the OFAC under the IEEPA are "blocked
assets" as that term is clearly defined in the TRIA to mean an
asset "seized or frozen."
Bank Saderat also argues that its BNY account does not hold
"blocked assets," basing its argument on the grounds that a
Senior Compliance Officer with the OFAC, in the Flatow
case in February 2000, asserted that she was "not aware of
any assets of Bank Saderat Iran in the United States that are
currently treated by OFAC as blocked assets under Executive
Order No. 12170 (November 14, 1979), or the Iranian Assets
Control Regulations, 31 C.F.R. Part 535." Declaration of
Lorraine B. Lawlor, Senior Compliance Officer, OFAC, dated
February 10, 2000, ,r 5 (see Letter Brief of Steven W. Kerekes,
Counsel for Bank Saderat, Exh. A).
Bank Melli further argues that its BNY assets are expressly
excluded from the definition ofblocked assets by§ 20l(d)(2)
(B)(i) of the TRIA. Section 20l(d)(2)(B)(i) provides that the
term "blocked assets" does not include property that
is subject to a license issued by the United States
Government for final payment, transfer, or disposition by
or to a person subject to the jurisdiction of the United States
in connection with a transaction for which the issuance of
such license has been specifically required by statute other
than the International Emergency Economic Powers Act
(50 U.S.C. 1701 et seq.) or the United Nations Participation
Act of 1945 (22 U.S.C. 287 et seq.).
TRIA § 20l(d)(2)(B)(i), 116 Stat. at 2339-40. According
to Bank Melli, this provision exempts the assets in its
BNY account because that account is subject to a specific
license issued under not only IEEPA but also ISDCAa
statute "other than" IEEPA. In response, plaintiffs argue
that because some licensed assets are excluded by § 20l(d)
(2)(B)(i) from the definition of "blocked assets," all assets
subject to a license under IEEPA---even if subject to a
license issued under some other statute-fall outside the
exclusion and within the category of"blocked assets." In the
government's view, even though Congress excluded certain
blocked property that has been licensed for final payment
or transfer *74 under statutes other than IEEPA, that does
not mean that all types of licensed property under IEEPA are
blocked property. Statement of Interest of the United States
("Gov't's Statement"), at 24.
In determining whether the Banks' assets maintained at DNY
are "blocked assets," the Court starts with the language of the
statute. See In re Edelman, 295 F.3d 171, 177 (2d Cir.2002).
As is relevant here, the TRIA defines a "blocked asset" as any
asset "seized or frozen" by the United States under IEEPA
§§ 202 and 203. Unfortunately, these terms are not further
defined in the TRIA. And the terms "seized" and "frozen"
do not appear in §§ 202 and 203 of the IEEPA, 50 U.S.C.
§§ 1701 and 1702. According to plaintiffs, the Court should
therefore resort to the legislative history of the statute for
interpretation. In plaintiffs' view, the legislative history of
the TRIA demonstrates that the term "blocked assets" under
the TRIA is an "omnibus term encompassing all Iranian
assets which have been blocked, frozen, seized, restricted or
otherwise regulated by any proclamation, order, regulation
or license issued pursuant to IEEPA." Pls.' Mem. at 21. In
support of this interpretation, plaintiffs refer to, inter alia, the
following statements by Senator Tom Harkin, a co-author of
Title II of the TRIA:
[T]he term "blocked asset" has been broadly defined to
include any asset of a terrorist party that has been seized
or frozen by the United States in accordance with law. This
definition includes any asset with respect to which financial
transactions are prohibited or regulated by the U.S.
Treasury under any blocking order under the Trading With
the Enemy Act, the International Emergency Economic
Powers Act, or any proclamation, order, regulation, or
license.
Senate Proceedings and Debates of the 107th Congress,
Second Session, 148 Cong. Rec. Sll528 (daily ed. Nov. 19,
2002) (statement of Sen. Harkin).
Upon consideration, the Court rejects plaintiffs' arguments
that all Iranian assets which entered U.S. jurisdiction after
the 1979 blocking order, i.e., EO 12170, are "blocked
assets" within the meaning of the TRIA, and that the term
"blocked assets" includes all assets "regulated" or "licensed"
under IEEPA by OFAC. Although, as the parties agree,
EO 12170 has not been revoked, the blocking prohibition
imposed by that order was removed on most Iranian assets
pursuant to the Algiers Accords and relevant executive orders
and OFAC regulations, including IACR § 535.579, which
removed the blocking prohibition on property entering into
U.S.jurisdiction after January 19, 1981. Contrary to plaintiffs'
argument that the general license merely authorized the
use of such assets but did not change the status of those
assets, § 535.502(c) specifically provides that the license
"has the effect of removing a prohibition," i.e., the blocking
prohibition. See IACR § 535.502(c) (providing that a "license
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authorizing a transaction otherwise prohibited under this part
has the effect of removing a prohibition or prohibitions in
Subpart B from the transaction"). Thus, assets subject to
the general license that entered into U.S. jurisdiction after
January 19, 1981 are not necessarily "blocked." Indeed, as
the government points out, the general license allows the
Banks to close their accounts and remove the assets from U.S.
jurisdiction,see31 C.F.R. § 560.517(a)(3).
Moreover, the Court does not agree with plaintiffs that the
term "blocked assets." as defined, must be construed as
an "omnibus" term extending to all assets "regulated" or
"licensed" by the OFAC under the *75 IEEPA. Plaintiffs'
interpretation of "blocked assets" ignores the limitation
imposed by the definition itself. The TRIA limits the
definition of "blocked assets" to those that are "seized or
frozen" by the United States under specified statutes, one of
which is the IEEPA. The IEEPA authorizes the president to
take various actions regarding property in which a foreign
country or person has an interest, including "investigate,
block during the pendency of an investigation, regulate, direct
and compel, nullify, void, prevent or prohibit." See 50 U.S.C.
§ 1702(a)(l)(B). Even before the phrase "block during the
pendency of an investigation" was added to the IEEPA in
the USA Patriot Act,6 the Supreme Court recognized that the
President has the authority to issue blocking orders under the
IEEPA. See Dames & Moore v. Regan, 453 U.S. 654, 673,
101 S.Ct. 2972, 69 L.Ed.2d 918 (1981); Smith v. Federal
Reserve Bank of New York, 346 F.3d 264, 268 n. 2 (2d
Cir.2003). Nevertheless, the term "block" is not defined; nor
are the terms "seize" or "freeze." "Blocking" is defined,
however, by OFAC as a "freezing" of assets that imposes an
"across-the-board prohibition against transfers or transactions
of any kind with regard to the property." U.S. Treasury
Dep't, Foreign Assets Control Regulations for the Financial
Community, at 4 (Dec. 27, 2002). And while neither the
parties nor the government point to an OFAC definition of
the term "seize," the Second Circuit, in construing the TRIA,
recently observed that "[t]o seize or freeze assets transfers
possessory interest in the property." Smith, 346 F.3d at 272
(emphasis in original). Similarly, as used in the law, the
word "seize," in relevant context, means "to forcibly take
possession of ... property." Black's Law Dictionary 1363 (7th
ed.1999). Given that not every type of action authorized
by the IEEPA necessarily involves a seizing or freezing of
property, it follows that not every action regarding property
under the authority of the IEEPA, including assets that may
be "regulated" or "licensed," results in the property being
"blocked" under the TRIA. As noted, the term "blocked"
under the TRIA is specifically limited to assets that are
"seized or frozen"-a limitation that this Court cannot ignore.
Cf Smith, 346 F.3d at 271-72 (concluding that "the term
'blocked assets' reaches broadly to include any property
seized or frozen by the United States. But it does not reach
so broadly as to encompass confiscated property. To seize
or freeze assets transfers possessory interest in the property.
But confiscation, pursuant to IEEPA § 203(a)(l)(C) [i.e., 50
U.S.C. § 1702(a)(l)(C) ], transfers ownership of terrorist
property by vesting right, title, and interest as the President
deems appropriate." (citation omitted)).
Furthermore, plaintiffs' reliance on FSIA § 1610(f)(l)(A)
is misplaced, as that provision contains a notably different
definition of attachable assets than specified in the TRIA.
That provision, unlike the TRIA provision, clearly authorizes
attachment or execution of property "regulated" under the
IEEPA.
Moreover, although, as plaintiffs assert, there is legislative
history to the TRIA indicating that the term "blocked asset"
includes any asset "regulated" by the Treasury Department,
the seemingly clear statutory text does not reasonably allow
that broader interpretation, nor compel resort to legislative
history for interpretation. See West Virginia Univ. Hasps. Inc.
v. Casey, 499 U.S. 83, 98, 111 S.Ct. 1138, 113 L.Ed.2d 68
(1991); In re Edelman, 295 F.3d at 177.
*76 Consequently, the Court also rejects plaintiffs'
interpretation of the § 201(d)(2)(B)(i) exception, as that
interpretation would necessarily require a broader definition
of "blocked asset" than is provided. There is no indication
in the TRIA, as the government argues, that this exception
sweeps into the definition of "blocked assets" all licensed
transactions, even as to property that has never been "seized
or frozen."
Plaintiffs have advised the Court that the Senate recently
passed a proposed amendment to the TRIA on July 11,
2003, entitled "Clarification of Blocked Assets for Purposes
of Terrorism Risk Insurance Act of 2002," 149 Cong. Rec.
S9256. See Letter from Jeffrey A. Miller, Esq., Counsel
for Plaintiffs, dated July 30, 2003. Under the proposed
amendment, "blocked asset" is defined to further include
"any asset or property that in any respect is subject to
any prohibition, restriction, regulation or license pursuant to
chapter V of title 31, Code of Federal Regulations (including
parts 515,535,550,560,575,595,596, and 597 of such title),
or any other asset or property of a terrorist party." According
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to plaintiffs, this amendment "clarifies" the existing meaning
of the term "blocked asset." In response, Bank Melli disputes
the significance of the proposed amendment, arguing, inter
alia, that the proposal, in fact, recognizes that the current
definition does not equate "regulated" assets with "blocked
assets," and urging the Court to decide the matter based on
the law as it presently exists, not a proposal. See Letter from
John D. Winter, Esq., Counsel for Bank Melli, dated August
4, 2003.
Despite plaintiffs' arguments, this proposed amendment
would add to, not merely clarify, the current definition, as it
would significantly alter the limiting language in the present
law. Moreover, as Bank Melli urges, the Court is obliged
to decide this matter on the law as it presently exists, not
upon a proposed amendment. See Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 227, 115 S.Ct. 1447, 131 L.Ed.2d 328
(1985); Walsche v. First Investors Corp., 981 F.2d 649, 653
(2d Cir.1992).
B. Agency or Instrumentality
Footnotes
Given the Court's conclusion that the Banks' assets at
issue are not "blocked assets" under the TRIA, the Court
need not determine whether the Banks are "agencies or
instrumentalities" for purposes of attachment under the
TRIA.7
III. CONCLUSION
For the above reasons, the Court concludes that the Banks'
assets in their BNY accounts are not subject to attachment
under the TRIA. The Court will contact the parties regarding
submission of an appropriate order, including a provision for
a stay pending any appeal.
SO ORDERED.
All Citations
299 F.Supp.2d 63
1 Bank Sepah has not appeared in this matter. However, the parties provide no basis for distinguishing between the Banks.
Accordingly, the Court will treat the Banks similarly for purposes of discussion.
2 Section 1605(a)(7) provides that
a foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ...
in which money damages are sought against a foreign state for personal injury or death that was caused by an act of
torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources ... for
such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign
state while acting within the scope of his or her office, employment, or agency ....
28 U.S.C. § 1605(a)(7).
This provision was designed to permit United States citizens to bring civil actions against specifically-designated
foreign state sponsors of terrorism, including Iran. See, e.g., Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27
(D.D.C.2001) (holding Iran liable for American kidnaped and tortured by Hizbollah); Eisenfeld v. Islamic Republic of Iran,
172 F.Supp.2d 1 (D.D.C.2000) (holding Iran liable for death of American students in bombing by Hamas); Flatow v.
Islamic Republic of Iran 999 F.Supp. 1 (D.D.C.1998) (holding Iran liable for death of American student in bombing by
Islamic Jihad).
3 For instance, EOs 12276 and 12277 directed establishment of the escrow accounts and transfer of blocked Iranian
government assets to the escrow accounts. See EO 12276, 46 Fed.Reg. 7913 (Jan. 19, 1981) (entitled, "Direction
Relating to Establishment of Escrow Accounts"); EO 12277, 46 Fed.Reg. 7915 (Jan. 19, 1981) (entitled, "Direction to
Transfer Iranian Government Assets"); see also EO 12278, 46 Fed.Reg. 7917 (Jan. 19, 1981) (entitled, "Direction to
Transfer Iranian Government Assets Overseas"); EO 12279, 46 Fed.Reg. 7919 (Jan. 19, 1981) (entitled, "Direction to
Transfer Iranian Government Assets Held by Domestic Banks"); EO 12280, 46 Fed.Reg. 7921 (Jan. 19, 1981) (entitled,
"Direction to Transfer Iranian Government Financial Assets Held by Non-Banking Institutions").
4 OFAC defines a "general license" as "[a] regulatory provision authorizing certain transactions without the filing of an
application with OFAC." U.S. Treasury Dep't, Foreign Assets Control Regulations for the Financial Community, at 4 (Dec.
27, 2002).
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5 OFAC defines a "specific license" as "[a] permit issued by OFAC on a case-by-case basis to a specific ... company allowing
an activity that would otherwise be prohibited by the embargo or sanctions program." U.S.Treasury Dep't, Foreign Assets
Control Regulations for the Financial Community at 4 (Dec. 27, 2002).
6 See Pub. L No. 107-56, § 106, 115 Stat. 272, 277 (Oct. 26, 2001 ).
7 In addition, given the Court's determination that the Banks' assets at issue are not subject to attachment under the TRIA,
the Court need not reach Bank Melli's additional argument that the second restraining notice is void because it was
served without court order.
End of Document © 2021 Thomson Reuters. No claim to original U.S.
Government Works.
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ANNEX308

Weinstein v. Islamic Republic of Iran, 609 F.3d 43 (2010)
609 F.3d 43
United States Court of Appeals,
Second Circuit.
Susan WEINSTEIN, individually as
Co-Administrator of the Estate of Ira William
Weinstein, and as Natural Guardian of plaintiff
David Weinstein, Jeffrey A. Miller, as
Co-Administrator of the Estate of Ira William
Weinstein, Joseph Weinstein, Jennifer Weinstein
Hazi & David Weinstein, Jennifer Weinstein Hazi,
Plaintiffs-Appellees,
Bank of New York, Plaintiff,
V.
ISLAMIC REPUBLIC OF IRAN, Iranian Ministry
of Information and Security, Ayatollah Ali Hoseini
Khamenei, Ali Akbar Hashemi-Rafsanjani, Ali
Fallahian-Khuzestani, Defendants,
Bank Melli Iran New York Representative Office,
Respondent-Appellant,
Bank Saderat Iran, New York Representative
Office, Bank Sepah Iran, New York Representative
Office, Respondents:
Docket No. 09-3034-CV.
I
Argued:Feb.17,2010.
I
Decided: June 15, 2010.
Synopsis
Background: Following entry of default judgment, 184
F.Supp.2d 13, for estate and survivors of American
citizen killed in a terrorist bombing in Israel, in their
action, under the terrorism exception to the Foreign
Sovereign Immunities Act (FSIA), against, inter alia, the
Islamic Republic of Iran, plaintiffs, as judgment creditors,
moved for appointment, under federal and New York law,
of receiver to sell New York property owned by an
Iranian bank. Bank moved to dismiss. The United States
District Court for the Eastern District of New York
Leonard D. Wexler, J., 624 F.Supp.2d 272,granted
creditors' motion, and bank appealed.
Holdings: The Court of Appeals, Jed S. Rakoff, United
States District Judge sitting by designation, held that:
Court had jurisdiction to entertain judgment creditors'
motion;
appointment of receiver did not violate separation of
powers principles;
appointment of receiver did not violate Treaty of Amity
between United States and Iran;
attachment and sale of bank property did not constitute a
taking under either Fifth Amendment or the Treaty of
Amity; and
attachment and sale of bank property did not violate
agreement between United States and Iran by which
release of hostages taken by Iran was secured.
Affirmed.
Attorneys and Law Firms
*46 Laina C. Lopez, Berliner, Corcoran & Rowe, LLP,
Washington, DC (Thomas G. Corcoran, Jr., Berliner,
Corcoran & Rowe, LLP, Washington, DC, John N.
Romans, Law Office of John N. Romans, Mamaroneck,
NY, on the brief), for Respondent-Appellant.
Robert J. Tolchin, Jaroslawicz & Jaros New York NY
for Plaintiff-Appellee. ' ' '
Before KEARSE and HALL, Circuit Judges, and
RAKOFF, District Judge.''
Opinion
RAKOFF, District Judge.
On February 25, 1996, Ira Weinstein, a United States
citizen and resident of New York, was severely injured
during a suicide bombing in Jerusalem organized by the
terrorist organization Hamas. On April 13, 1996,
Weinstein died from those injuries. See Weinstein v.
Islamic Rep. of Iran, 184 F.Supp.2d 13, 16-17
(D.D.C.2002). On October 27, 2000, his widow, another
administrator of his estate, and his children brought suit
for wrongful death and other torts against the Islamic
Republic of Iran ("Iran"), the Iranian Ministry of
Information and Security, and three Iranian officials,
alleging that these defendants had provided substantial
monetary support for Hamas's terrorist attacks. See id. at
21-22. After defendants failed to appear, the district court
determined that the plaintiffs had established their "claim
or right to relief by evidence satisfactory to the court," 28
U.S.C. § 1608(e), and entered default judgment for
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Annex 308
Weinstein v. Islamic Republic of Iran, 609 F.3d 43 (2010)
plaintiffs in the amount of approximately $183,200,000.
See id. at 16, 22-26.
Plaintiffs registered the judgment in the U.S. District
Court for the Eastern District of New York on October 8,
2002, and served an information subpoena on Bank of
New York that eventually led to the identification of
respondent Bank Melli Iran ("Bank Melli") as a possible
instrumentality of the Iranian state. See Weinstein v.
Islamic Rep. of Iran, 299 F.Supp.2d 63, 64-65
(E.D.N.Y.2004). The district court found it unnecessary to
determine whether Bank Melli was an "agency or
instrumentality" for purposes of the Terrorism Risk
Insurance Act of 2002 ("TRIA") because the court
determined that Bank Melli's accounts at the Bank of
New York were unattachable. Id. at 74-76. However, on
October 31, 2007, one of the plaintiff-judgment creditors,
Jennifer Weinstein Hazi ("Hazi"), filed a motion in the
Eastern District proceeding, seeking appointment of a
receiver (pursuant to Rule 69 of the Federal Rules of Civil
Procedure and Section 5228(a) of the New York Civil
Practice Law and Rules), to sell real property owned by
respondent Bank Melli in Forest Hills, Queens, which
plaintiff sought to attach and sell in partial satisfaction of
the judgment against the defendants. Hazi argued that the
Forest Hills property was now subject to attachment
pursuant to the TRIA, § 201(a), Pub.L. No. 107-297, 116
Stat. 2322, 2337, codified at 28 U.S.C. § 1610 note,
because on October 25, 2007, Bank Melli had been
designated by the United States Department of Treasury,
Office of Foreign Assets Control ("OF AC") as a
"proliferat[or] of weapons of mass destruction," and its
assets *47 had been frozen. See Executive Order 13,382,
70 Fed.Reg. 38,567 (June 28, 2005).1
On February 21, 2008, Bank Melli moved to dismiss the
proceeding against it and to stay the appointment of a
receiver pending resolution of its motion to dismiss. In its
motion to dismiss, Bank Melli argued, inter alia, that
attachment and sale of the Forest Hills property would
violate the Treaty of Amity between the United States and
Iran, that attachment and sale would constitute a taking
not for a public purpose and without just compensation in
violation of the Takings Clause of both the Fifth
Amendment of the United States Constitution and Article
IV.2 of the Treaty of Amity, and that the blocking of its
assets violated the so-called "Algiers Accords" and thus
attachment and sale would constitute a further violation of
the Accords. On June 5, 2009, after receiving submissions
from both Hazi and Bank Melli,2 the district court
(Wexler, Judge ) denied Bank Melli's motion to dismiss
and granted Hazi's motion to appoint a receiver, but
stayed the proceedings pending this appeal.
DISCUSSION
A. JURISDICTION
On this appeal, Bank Melli argues for the first time that
the district court lacked ancillary jurisdiction to entertain
Hazi's motion to appoint a receiver. According to Bank
Melli, Hazi's motion was not simply a proceeding to
collect on a debtor's assets, but rather "an independent
controversy with a new party in an effort to shift
liability," Epperson v. Entm 't Express, Inc., 242 F.3d 100,
106 (2d Cir.2001); see also Peacock v. Thomas, 516 U.S.
349, 357, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996), for
which TRIA § 201(a) did not provide an independent
source of jurisdiction. Although not raised below, subject
matter jurisdiction may be raised at any point, Grupo
Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 576,
124 S.Ct. 1920, 158 L.Ed.2d 866 (2004); Cave v. E.
Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d
Cir.2008), and so the Court must address this threshold
matter.3
The Foreign Sovereign Immunities Act ("FSIA"), 28
U.S.C. § 1602 et seq., provides the exclusive basis for
subject matter jurisdiction over all civil actions against
foreign state defendants, and therefore for a court to
exercise subject matter jurisdiction over a defendant the
action must fall within one of the FSIA's exceptions to
foreign sovereign immunity. See, e.g., Saudi Arabia v.
Nelson, 507 U.S. 349, 351, 113 S.Ct. 1471, 123 L.Ed.2d
47 (1993); Argentine Rep. v. Amerada Hess Shipping
Corp., 488 U.S. 428, 434-35, 109 S.Ct. 683, 102 L.Ed.2d
818 (1989); *48 Verlinden B. V. v. Cent. Bank of Nig., 461
U.S. 480, 493, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). In
the underlying action that gave rise to the judgment on
which plaintiff now seeks to collect, the district court
exercised subject matter jurisdiction over Iran and the
other defendants under 28 U.S.C. § 1605(a)(7), which
abrogates immunity for those foreign states officially
designated as state sponsors of terrorism by the
Department of State where the foreign state commits a
terrorist act or provides material support for the
commission of a terrorist act and the act results in the
death or personal injury of a United States citizen.4 See
Weinstein, 184 F.Supp.2d at 20-21. When such an
exception applies, "the foreign state shall be liable in the
same manner and to the same extent as a private
individual under like circumstances .... " 28 U.S.C. § 1606;
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see also Verlinden, 461 U.S. at 488-89, 103 S.Ct. 1962.
Bank Melli was not itself a defendant in the underlying
action. However, the FSIA has a separate section, Section
1609, that provides that where a valid judgment has been
entered against a foreign sovereign, property of that
foreign state is immune from attachment and execution
except as provided in the subsequent sections, Sections
1610 and 1611. 28 U.S.C. § 1609. Section 201(a) of the
TRIA, codified as a note to Section 1610 of the FSIA,
provides as follows:
Notwithstanding any other
provision of law, and except as
provided in subsection (b ), in every
case in which a person has obtained
a judgment against a terrorist party
on a claim based on an act of
terrorism, or for which a terrorist
party is not immune under [28
U.S.C. § 1605(a)(7) ], the blocked
assets of that terrorist party
(including the blocked assets of any
agency or instrumentality of that
terrorist party) shall be subject to
execution or attachment in the aid
of execution in order to satisfy such
judgment to the extent of any
compensatory damages for which
such terrorist party has been
adjudged liable.
TRIA § 201(a), 116 Stat. at 2337 (emphasis supplied).
The parties do not dispute that each of the elements of
Section 201(a) is satisfied here. Iran has been designated a
terrorist party pursuant to section 6(j) of the Export
Administration Act of 1979, 50 U.S.C.App. § 2405(j),
beginning January 19, 1984, see Weinstein, 184
F.Supp.2d at 20, and therefore is a "terrorist party" as
defined by TRIA § 201(d)(4), 116 Stat. at 2340. The
district court in the underlying action found jurisdiction
under 28 U.S.C. § 1605(a)(7), and thus Iran was not
immune from jurisdiction in the original proceeding. See
id. at 20-21. Bank Melli's assets were "blocked" as of
October 2007, designated as such pursuant to Executive
Order 13,382 and 50 U.S.C. §§ 1701 , 1702. Finally, Bank
Melli concedes that it is an instrumentality oflran.
Bank Melli contends, however, that the above-quoted
language of the TRIA does not provide an independent
basis for jurisdiction over an instrumentality of a
sovereign state when the instrumentality was not itself a
party to the underlying tort action that gave rise to
judgment on which plaintiff now seeks to recover. Rather,
Bank Melli argues, Section 201(a) of the TRIA simply
provides an additional ground for abrogating immunity
from attachment for a party that has been the subject of a
valid judgment, but does not *49 provide jurisdiction for
a court to permit attachment against a party that was not
itself the subject of the underlying judgment.
Although novel,' Bank Melli's argument is belied by the
plain language of Section 201(a), as well as by its history
and purpose. Section 201(a) clearly states that "in every
case in which a person has obtained a judgment against a
terrorist party ... , the blocked assets of that terrorist party
(including the blocked assets of any agency or
instrumentality of that terrorist party ) shall be subject to
execution or attachment.. .. " TRIA § 201(a), 116 Stat. at
2337 (emphasis supplied). Under Bank Melli's
interpretation, the parenthetical language in Section
201(a) of the TRIA that permits attachment of funds from
agencies and instrumentalities would be rendered
superfluous, since the agency or instrumentality would
itself have been a "terrorist party" against which the
underlying judgment had been obtained. See, e.g., Corley
v. United States, 556 U.S. 303, --, 129 S.Ct. 1558,
1566, 173 L.Ed.2d 443 (2009) (" '[a] statute should be
construed so that effect is given to all its provisions, so
that no part will be inoperative or superfluous, void or
insignificant .... ' ") (quoting Hibbs v. Winn, 542 U.S. 88,
101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004)). Instead,
however, the statute clearly differentiates between the
party that is the subject of the underlying judgment itself,
which can be any terrorist party (here, Iran), and parties
whose blocked assets are subject to execution or
attachment, which can include not only the terrorist party
but also "any agency or instrumentality of that terrorist
party." If this did not constitute an independent grant of
jurisdiction over the agencies and instrumentalities, the
parenthetical would be a nullity.
Although Bank Melli points out that Section 201(a) of the
TRIA has been codified as a note to Section 1610 rather
than in the sections of the FSIA more directly addressed
to exceptions to jurisdictional immunity, the plain
language of the statute cannot be overcome by its
placement in the statutory scheme. See Padilla v.
Rumsfeld, 352 F.3d 695, 721 (2d Cir.2003) (''No accepted
canon of statutory interpretation permits 'placement' to
trump text, especially where, as here, the text is clear and
our reading of it is fully supported by the legislative
history."), rev'd on other grounds by Rumsfeld v. Padilla,
542 U.S. 426, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004);
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see also Fla. Dep 't of Revenue v. Piccadilly Cafeterias,
Inc., 554 U.S. 33, 128 S.Ct. 2326, 2336, 171 L.Ed.2d 203
(2008) (noting that a statutory provision's placement in a
particular section "cannot substitute for the operative text
of the statute"). This is even more clearly true in this case
where the operative language begins with the phrase
"[n]otwithstanding any other provision of law," thus
making plain that the force of the section extends
everywhere.
Any inquiry into the meaning of a statute generally
"ceases 'if the statutory language is unambiguous and the
statutory scheme is coherent and consistent.' " Barnhart
v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941,
151 L.Ed.2d 908 (2002) (quoting Robinson v. Shell Oil
Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808
(1997) (other internal quotation *50 marks omitted)); see
also Universal Church v. Geltzer, 463 F.3d 218, 223 (2d
Cir.2006). But even if, contrary to fact, there were an
ambiguity here, it would be resolved in plaintiff's favor
by the legislative history. According to Senator Harkin,
one ofTRIA's sponsors:
The purpose of title II is to deal
comprehensively with the problem
of enforcement of judgments issued
to victims of terrorism in any U.S.
court by enabling them to satisfy
such judgments from the frozen
assets of terrorist parties .... Title II
operates to strip a terrorist state of
its immunity from execution or
attachment in aid of execution by
making the blocked assets of that
terrorist state, including the
blocked assets of any of its
agencies or instrumentalities,
available for attachment and/or
execution of a judgment issued
against that terrorist state. Thus, for
purposes of enforcing a judgment
against a terrorist state, title II does
not recognize any juridical
distinction between a terrorist state
and its agencies or
instrumentalities.
148 Cong. Rec. Sl 1524, at Sl 1528 (Nov. 19, 2002)
(statement of Sen. Harkin). Senator Harkin further stated
that TRIA "establishes once and for all, that such
judgments are to be enforced against any assets available
in the U.S., and that the executive branch has no statutory
authority to defeat such enforcement under standard
judicial processes, except as expressly provided in this
act." Id.
Accordingly, we find it clear beyond cavil that Section
20l(a) of the TRIA provides courts with subject matter
jurisdiction over post-judgment execution and attachment
proceedings against property held in the hands of an
instrumentality of the judgment-debtor, even if the
instrumentality is not itself named in the judgment.
B. CONSTITUTIONALITY OF TRIA
The underlying judgment which plaintiff seeks to satisfy
was obtained in February 2002, but the TRIA was not
enacted until November 2002 and Bank Melli was not
designated a "proliferat[ or] of weapons of mass
destruction" until 2007. In another argument raised for the
first time on appeal, Bank Melli argues that the TRIA, as
here applied, is unconstitutional because it "mandates the
reopening of a final judgment in violation of the
separation of powers doctrine of Article III of the U.S.
Constitution." Thus, to avoid any constitutional problem,
Bank Melli urges this Court to read the TRIA as applying,
prospectively, only to judgments rendered final after the
TRIA's enactment, and thus not to apply here.
Although plaintiff contends, with some force, that the
constitutional challenge has been waived for failure to
raise it below, a claim that a legislative enactment
intrudes on the courts' powers is the kind of claim that
appropriately may be considered here, even if for the first
time. See, e.g., Freytag v. Comm 'r, 501 U.S. 868, 879,
111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (rejecting waiver
and addressing constitutional challenge because of "the
strong interest of the federal judiciary in maintaining the
constitutional plan of separation of powers") (internal
quotation marks omitted).
Bank Melli's constitutional challenge is largely derived
from Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115
S.Ct. 1447, 131 L.Ed.2d 328 (1995), in which the
Supreme Court held that a section of the Securities
Exchange Act of 1934 violated separation of powers
because it required federal courts retroactively to reopen
final money judgments that had been dismissed as barred
under the statute of limitations. See id. at 219, 115 S.Ct.
1447. "[R]etroactive legislation [that] requires its own
application *51 in a case already finally adjudicated ...
does no more and no less than 'reverse a determination
once made, in a particular case' [ and thus] exceeds the
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powers of Congress." Id. at 225, 115 S.Ct. 1447 (quoting
The Federalist No. 81, at 545 (J. Cooke, ed., 1961)).
Here, however, no such revision of the 2002 judgment is
effectuated by the attachment of Bank Melli's property
pursuant to the TRIA. Indeed, the judgment itself is
unaffected. What the TRIA did, instead, was to override
the Supreme Court's reading in First Nat'! City Bank v.
Banco Para El Comercio Exterior de Cuba, 462 U.S. 611,
627-28, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983) ( "Bancec
"), that "duly created instrumentalities of a foreign state
are to be accorded a presumption of independent status."
Id. at 627, 103 S.Ct. 2591. This presumption related to
enforceability of judgments against state instrumentalities,
but it had not nothing to do with the rendering of the
judgment itself. Moreover, even under Bancec, the
presumption could be overcome. Id. at 629. The effect of
the TRIA, therefore, was simply to render a judgment
more readily enforceable against a related third party. The
judgment itself was in no way tampered with, and
separation of powers was thus in no way offended. 6
Bank Melli also argues that the delegation of authority to
the Treasury Department to determine which entities'
assets would be "blocked" is, as applied here, tantamount
to an unconstitutional vesting of "review of the decisions
of Article III courts in officials of the Executive Branch."
Plaut, 514 U.S. at 218, 115 S.Ct. 1447; see Hayburn 's
Case, 2 U.S. 408, 2 Dall. 409, 1 L.Ed. 436 (1792). Here,
however, it is clear that no official from the Executive
Branch stands in direct review of the district court's
decision regarding execution and attachment of assets
pursuant to the TRIA. OFAC simply made a factual
determination that Bank Melli was a proliferator of
weapons of mass destruction, pursuant to which Bank
Melli's assets were "blocked." In so doing, OFAC did not
in any way review or alter the district court's original
entry of the default judgment.
Nor does the district court's reliance on OFAC's
determination for its exercise of subject matter
jurisdiction run afoul of separation of powers. In Jones v.
United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691
(1890), the Supreme Court held that the district court had
subject matter jurisdiction over a murder trial where the
crime occurred on an island that the State Department had
deemed was "appertaining to the United States." Id. at
224, 11 S.Ct. 80. In that case, the exercise of subject
matter jurisdiction based on an Executive Branch
determination did not exceed the bounds of Article III.
Similarly, in Matimak Trading Co. v. Khalily, 118 F.3d
76, 83-84 (2d Cir.1997), overruled in part on other
grounds by JPMorgan Chase Bank v. Traffic Stream
(BVI) Infrastructure Ltd., 536 U.S. 88, 122 S.Ct. 2054,
153 L.Ed.2d 95 (2002), this Court found that alienage
jurisdiction could depend on whether the Executive
Branch had deemed a given foreign entity a *52 "state,"
and because the foreign entity in question had not been
recognized as a "state," jurisdiction was deemed lacking.
It is true that, in Rein, 162 F.3d at 763, this Court, in
dicta, raised the question of whether after the passage of
the FSIA, designation of a foreign state as a sponsor of
terrorism by a branch other than Congress raised a
potential issue of separation of powers. Specifically, in
Rein, we rejected Libya's argument that the State
Department's designation of Libya as a state sponsor of
terrorism violated separation of powers, since Libya had
already been designated as such when section 1605(a)(7)
was added to the FSIA; but we queried whether a
different "issue of delegation might be presented if
another foreign sovereign-one not identified as a state
sponsor of terrorism when § 1605(a)(7) was passed-was
placed on the relevant list by the State Department and,
on being sued in federal court, interposed the defense that
Libya now raises." 162 F.3d at 764; see also Miller v.
FCC, 66 F.3d 1140, 1144 (11th Cir.1995) (noting that
Congress cannot delegate the power of any federal agency
to "oust state courts and federal district courts of subject
matter jurisdiction"); United States v. Mitchell, 18 F.3d
1355, 1360 n. 7 (7th Cir.1994) (raising doubts about
whether Congress could delegate its control over federal
court jurisdiction to any agency or commission).
In effect, Bank Melli now raises, albeit obliquely, the
kind of issue left unaddressed in Rein. Like Libya, Iran
was already deemed a state sponsor of terrorism when the
relevant provision of the FSIA was applied to abrogate
foreign sovereign immunity in the district court.
However, here, the district court's jurisdiction over a
proceeding to attach Bank Melli's assets depended, at
least in part, on OFAC's subsequent determination that
Bank Melli was a proliferator of weapons of mass
destruction. Reaching only the instant variation on the
issue alluded to in the dicta in Rein, we hold that
Congress, by virtue of providing subject matter
jurisdiction over execution and attachment proceedings
based in part on OFAC's determination of what assets are
blocked, has not unconstitutionally delegated its authority
to the Executive Branch.
The TRIA provides jurisdiction for execution and
attachment proceedings to satisfy a judgment for which
there was original jurisdiction under the FSIA (which is
not challenged here) if certain statutory elements are
satisfied. The fact that satisfaction of one of those
statutory elements-that Bank Melli's assets were
blocked-was based on the factual determination by a
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coordinate branch that Bank Melli supported terrorist
activity is not, on its own, a delegation of Congress's
authority over the courts' subject matter jurisdiction that
exceeds the boundaries of Article III. The TRIA only
delegates to the Executive the authority to make a factual
finding upon which jurisdiction turns in part. See, e.g.,
Owens v. Rep. of Sudan, 531 F.3d 884, 891
(D.C.Cir.2008) (rejecting Sudan's argument that the FSIA
unconstitutionally delegated subject matter jurisdiction to
Executive Branch because the FSIA only granted
"authority to make a factfinding upon which jurisdiction
partially rests"). That factfinding, moreover, is one
peculiarly within the expertise of the Executive, a fact
Congress itself implicitly recognized in creating the
TRIA.
In short, none of Bank Melli's belatedly-raised
constitutional arguments persuades the Court that there
has been any defect in the application of the TRIA in this
case.
C. TRIA & TREATY OF AMITY
We next turn to the arguments that Bank Melli did raise in
the district court, the first of which concerns the Treaty of
*53 Amity (the "Treaty") that the United States and Iran
(then governed by the Shah) signed in 1955, which took
effect in 1957 and still remains in place. Treaty of Amity,
Economic Relations, and Consular Rights, U.S.-Iran,
Aug. 15, 1955, 8 U.S.T. 899. Article 111.1 of the Treaty
provides that "[ c ]ompanies constituted under the
applicable laws of either High Contracting Party shall
have their juridical status recognized within the territories
of the other High Contracting Party." Id., art. 111.1. Article
IV.2 adds that "[p]roperty of nationals and companies of
either High Contracting Party, including interest in
property, shall receive the most constant protection and
security within the territories of the other High
Contracting Party, in no case less than that required by
international law." Id., art. IV.2.
Bank Melli asserts that these provisions, read together,
require that Iranian companies be treated as distinct and
independent entities from their sovereign. But this is not
correct. As the district court noted, the key provision,
Article III. l ., is "substantively identical" to a provision in
a number of Friendship, Commerce, and Navigation
("FCN") treaties negotiated by the U.S. following World
War II. In Sumitomo Shoji America, Inc. v. Avagliano,
457 U.S. 176, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982), the
Supreme Court held that these provisions are designed,
not to give separate juridical status to instrumentalities of
the sovereign entity, but simply "to give corporations of
each signatory legal status in the territory of the other
party, and to allow them to conduct business in the other
country on a comparable basis with domestic firms." Id.
at 185-86.
Bank Melli argues that Sumitomo only addressed the
language in the provision of the U.S.-Japan FCN Treaty
that a company "constituted under the applicable laws and
regulations within the territories of either Party shall be
deemed companies thereof," but did not address the rest
of the provision, "and shall have their juridical status
recognized within the territories of the other Party."
While it is true that the Court focused its analysis on the
phrase "shall be deemed companies thereof," it went on to
explain that the intent behind the FCN treaties as a whole
was simply to grant legal status to corporations of each of
the signatory countries in the territory of the other, thus
putting the foreign corporations on equal footing with
domestic corporations. 457 U.S. at 185-86, 102 S.Ct.
2374. There is, therefore, no conflict between the TRIA
and the Treaty.
Moreover, even assuming, arguendo, that there were a
conflict between the two, the TRIA would have to be read
to abrogate that portion of the Treaty. Although a " 'treaty
will not be deemed to have been abrogated or modified by
a later statute unless such purpose on the part of Congress
has been clearly expressed,' " Trans World Airlines, Inc.
v. Franklin Mint Corp., 466 U.S. 243, 252, 104 S.Ct.
1776, 80 L.Ed.2d 273 (1984) (quoting Cook v. United
States, 288 U.S. 102, 120, 53 S.Ct. 305, 77 L.Ed. 641
(1933)), Section 20l(a) of the TRIA expressly states that
it permits attachment of the assets of a foreign sovereign's
instrumentalities in satisfaction of a terrorism-related
judgment against the foreign sovereign
"[n]otwithstanding any other provision of law "
(emphasis supplied). See Cisneros v. Alpine Ridge Group,
508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993)
(noting that the Courts of Appeals have regularly
interpreted such "notwithstanding" prov1s1ons "to
supersede all other laws"); see also Ministry of Defense
and Support for the Armed Forces of the Islamic Rep. of
Iran v. Elahi, 556 U.S. 366, 129 S.Ct. 1732, 173 L.Ed.2d
511 (2009); *54 Hill v. Rep. of Iraq, No. 99 CV 03346TP,
2003 WL 21057173, at *2, 2003 U.S. Dist. LEXIS 3725,
at *10-11 (D.D.C. Mar. 11, 2003) (holding that the
"notwithstanding provision" is "unambiguous and
effectively supersedes all previous laws").
D. TAKINGS CLAUSE
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In the next of the arguments raised below, Bank Melli
argues that the attachment here in issue constitutes a per
se taking of physical property, not for a public purpose
and without just compensation, and therefore offends the
Takings Clause of the Fifth Amendment of the U.S.
Constitution, as well as Article IV.2 of the Treaty of
Amity. See U.S. Const., amend. V ("nor shall private
property be taken for public use, without just
compensation"); Treaty, art. IV.2 (property of Iranian
companies "shall not be taken except for a public purpose,
nor shall it be taken without the prompt payment of just
compensation").
The argument is without merit. Bank Melli was added to
the OF AC list because of its unlawful actions in support
of terrorism. In so doing, it had clear notice from the
TRIA, enacted five years earlier, that such actions could
result in the designation and blocking of its assets under
the TRIA, which could in turn subject them to attachment.
See Paradissiotis v. United States, 304 F.3d 1271,
1275-76 (Fed.Cir.2002) (rejecting a takings clause claim
that OFAC's freezing of the plaintiff's stock options,
which eventually became valueless, constituted a taking
without just compensation); see also Branch v. United
States, 69 F.3d 1571, 1576 (Fed.Cir.1995) (noting that
seizure of assets to offset tax liability or pay a civil
penalty would not constitute a taking).
Here, where the underlying judgment against Iran has not
been challenged, seizure of Bank Melli's property, as an
instrumentality oflran, in satisfaction of that liability does
not constitute a "taking" under the Takings Clause. See
Branch, 69 F.3d at 1577 (noting absence of "any principle
of takings law under which an imposition of liability is
deemed a per se taking as to any party that cannot pay
it"). Instead, Bank Melli's own conduct as a funder of
weapons of mass destruction opened it to liability for
judgments already entered against Iran. See, e.g., Meriden
Trust and Safe Deposit Co. v. FDIC, 62 F.3d 449,455 (2d
Cir.1995) ( citing cases holding that deprivation of
property resulting from voluntary conduct cannot
constitute a "taking").
As the Supreme Court has noted, the Takings Clause is
designed "to prevent the government 'from forcing some
people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole.' "
E. Enters. v. Apfel, 524 U.S. 498, 522, 118 S.Ct. 2131,
141 L.Ed.2d 451 (1998) (quoting Armstrong v. United
States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554
(1960)). Here, where Bank Melli's assets are subject to
attachment to satisfy a judgment against its foreign
sovereign, the underlying purpose of the Takings Clause
is in no way violated by attachment of Bank Melli's
assets.
Finally, Bank Melli does not advance any argument to
find that the Takings Clause in the Treaty of Amity would
require a different analysis. Cf Kahn Lucas Lancaster v.
Lark Int'l, 186 F.3d 210, 215 (2d Cir.1999) (treaties are
construed in much the same manner as statutes and
district court interpretations are subject to de nova
review).
E. ALGIERS ACCORDS
In the last of the arguments it raised below, Bank Melli
argues that the attachment *55 here in issue violates the
so-called Algiers Accords (the "Accords"). In 1980, the
United States and Iran, under the auspices of the
Government of Algeria, entered into the Accords to settle
a number of disputes between the two countries, in
particular, matters arising out of the hostage crisis that
occurred on November 4, 1979 in Tehran in which the
Iranian Government seized the U.S. Embassy and held
captive 52 U.S. citizens.7 Previously, in response to the
hostage crisis, President Carter had issued Executive
Order 12,170, which "blocked all property and interests in
property of the Government of Iran, its instrumentalities
and controlled entities and the Central Bank of Iran which
are or become subject to the jurisdiction of the United
States .... " Exec. Order 12,170, 44 Fed.Reg. 65,729 (Nov.
14, 1979). As part of the Accords, the United States
agreed to "restore the financial position of Iran, in so far
as possible, to that which existed prior to November 14,
1979," and to "commit[] itself to ensure the mobility and
free transfer of all Iranian assets within its jurisdiction."
20 I.L.M. at 224. The United States also agreed, subject to
some exceptions to "arrange, subject to the provisions of
U.S. law applicable prior to November 14, 1979, for the
transfer to Iran of all Iranian properties which are located
in the United States and abroad." Id. at 227.
Bank Melli argues that, because the obligations of the
United States under the Accords are ongoing, and the
Forest Hills property at issue was owned by Bank Melli
prior to November 14, 1979 (making it a blocked asset
under Executive Order 12,170) the property is subject to
these ongoing Accords and therefore the subsequent
"blocking" of the asset under Executive Order 13,382
violated the Accords.
This argument confuses the United States's obligation to
unblock assets that had been blocked based on
pre-Accords violations with post-Accords blocking based
on post-Accords violations. As the district court noted in
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an earlier decision, after the United States and Iran
entered into the Accords most Iranian assets were
automatically unblocked. See Weinstein, 299 F.Supp.2d at
67-68. Since the Forest Hills property was no longer
blocked after the Accords, Bank Melli was entitled to
exercise any and all rights of ownership, including sale of
the property, until it was subsequently blocked on
October 25, 2007. Although Bank Melli argues that no
specific expiration date was given in the Accords, and
therefore the obligations of the U.S. are ongoing, nothing
in the Accords suggests that the United States is
precluded from blocking Iranian assets based on
subsequent events unrelated to the hostage crisis. Indeed,
the United States has implemented several sanctions
programs against Iran, subsequent to the Accords, that
have had the effect of limiting the mobility of Iranian
property. See, e.g., Executive Order 12,613, 52 Fed.Reg.
41940 (Oct. 29, 1987) (prohibiting, pursuant to 3 U.S.C. §
301 and Section 505 of the International Security and
Development Cooperation Act of 1985, 22 U.S.C. §
2349aa-9, certain Iranian imports); see also Weinstein,
299 F.Supp.2d at 68 (providing overview of executive
orders imposing sanctions *56 that affected property
controlled or owned by Iran).
Nor is Roeder v. Islamic Rep. of Iran, 333 F.3d 228
(D.C.Cir.2003), upon which Bank Melli heavily relies, to
the contrary. In Roeder, the D.C. Circuit found that,
despite a Congressional amendment to the FSIA
specifically intended to abrogate Iran's sovereign
immunity for that particular case, plaintiffs action was
still nevertheless barred because it was based on the
events of the November 4, 1979 hostage crisis and the
Accords "bar[red] and preclude[d] the prosecution against
Iran of any pending or future claim of ... a United States
national arising out of the events" of the seizure and
detention of the 52 U.S. citizens. Id. at 236 (internal
quotation marks omitted). It concluded that the specific
amendment to the FSIA in no way addressed the Accords
and, given the express statement in the Accords barring
Footnotes
such actions, refused to interpret the amendment to the
FSIA, despite its being passed specifically to permit
plaintiffs to go forward with their case, as abrogating or
modifying that agreement without an express statement
from Congress to that effect. Id. at 237-38. While the
Accords prevent suits arising out the hostage crisis, the
language regarding Iranian assets in no way suggests that
Iranian assets would be immunized from blocking for all
time. The blocking of assets undertaken by President
Carter in his Executive Order was done in response to the
particular events of November 1979, and the Accords
unblocked those assets. Since nothing in the Accords
suggests that the United States has a limitless obligation
to ensure that Iranian assets remain free from attachment
based on events unrelated to the 1979 hostage crisis, Bank
Melli's arguments that blocking its assets and subsequent
attachment of those assets would violate the Accords are
simply unavailing.
CONCLUSION
The Court has considered Bank Melli's other arguments
and finds them without merit. Accordingly, for the
foregoing reasons, the Court affirms the district court's
decision to grant plaintiffs motion and appoint a receiver
to attach Bank Melli's property in partial satisfaction of
the judgment against Iran and to deny Bank Melli's
motion to dismiss.
All Citations
609 F.3d 43
The clerk of Court is directed to amend the official caption in this case to conform to the listing of the parties above.
The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.
Executive Order 13,382 was issued by the President pursuant to the International Emergency Economic Powers Act,
50 U.S.C. §§ 1701 , 1702, and provided that all property and interests in property in the United States of persons and
entities listed in the order or subsequently listed "are blocked and may not be transferred, paid, exported, withdrawn, or
otherwise dealt in." Exec. Order 13,382, 70 Fed.Reg. 38,567 (June 28, 2005). Bank Melli was added to the list on
October 25, 2007.
2 Although the district court also invited the United States to file its own submission to address the issues in the case, the
Government declined to do so.
WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8
Annex 308
Weinstein v. Islamic Republic of Iran, 609 F.3d 43 (2010)
3 The district court did, however, cite for other purposes to a lower court decision that also considered the jurisdiction
issue. See Weininger v. Castro, 462 F.Supp.2d 457, 490 (S.D.N.Y.2006) (holding that the TRIA "provides [an]
independent basis of subject matter jurisdiction in this enforcement proceeding against these [foreign sovereign]
entities").
4 In 2008, Congress repealed § 1605(a)(7) and created a new section specifically devoted to the terrorism exception to
the jurisdictional immunity of a foreign state. See Pub.L. 110-181 , Div. A, § 1803, Jan. 28, 2008, 122 Stat. 341
(repealing 28 U.S.C. § 1605(a)(7) and creating 28 U.S.C. § 1605A). To the extent relevant to this case, § 1605A
provides for the same exceptions to foreign sovereign immunity as the repealed section.
5 To date, no appellate court has addressed this issue, although several district courts have found that the TRIA grants
subject matter jurisdiction for execution and attachment proceedings over parties against whom there exist underlying
judgments. See, e.g., Weininger, 462 F.Supp.2d at 477-89; Rubin v. Islamic Rep. of Iran, 456 F.Supp.2d 228
(D.Mass.2006).
6 It should be noted that Hazi seeks attachment of property in partial satisfaction only of the portion of the underlying
judgment that awarded compensatory damages in her favor. See Rein v. Socialist People's Libyan Arab Jamahiriya,
162 F.3d 748, 762 (2d Cir.1998) ('Where a retroactive law is civil rather than criminal, it is only the imposition of
punitive damages that might, in particular circumstances, raise a constitutional problem."). Of the total judgment of
approximately $183,200,000, approximately $33,200,000 was compensatory damages, of which $5,000,000 was
allocated to Hazi. Weinstein, 184 F.Supp.2d at 22-25.
7 The Accords are comprised primarily of two documents: the Declaration of the Government of the Democratic and
Popular Republic of Algeria (Jan. 19, 1981), and The Declaration of the Government of the Democratic and Popular
Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the
Government of the Islamic Republic of Iran (Jan. 19, 1981 ), reprinted in 20 I.L.M. 223 (1981 ); 81 Dep't of State Bull.
No.2047, Feb. 1981 at 1. See Iran Aircraft Industries v. Avco Corp., 980 F.2d 141, 143 (2d Cir.1992).
End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.
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ANNEX309

4/8/2021 Eastern District of New York - LIVE Database 1.5 (Revision 1.5.2)
.Query Reports .Y.tilities Help Log Out
CLOSED
U.S. District Court
Eastern District of New York (Central Islip)
CIVIL DOCKET FOR CASE#: 2:12-cv-03445-LDW
Weinstein, et al v. The Islamic Republic, et al
Assigned to: Judge Leonard D. Wexler
Demand: $0
Receiver
Esq. Frederick M. Ausili
Plaintiff
Susan Weinstein
individually as Co-Administrator of the
Estate of Ira William Weinstein, and as
natural guardian of plaintiff David
Weinstein
Plaintiff
Jeffrey A. Miller
as Co-Administrator of the Estate of Ira
William Weinstein, Joseph Weinstein,
Jennifer Weinstein, Hazi & David Weinstein
Plaintiff
Bank of New York
Plaintiff
Date Filed: 07/12/2012
Date Terminated: 12/20/2012
Jury Demand: None
Nature of Suit: 890 Other Statutory Actions
Jurisdiction: Federal Question
represented by Fredrick M. Ausili
95 Northwood Boulevard
Central Islip, NY 11722
631-871-8373
ATTORNEY TO BE NOTICED
represented by Jeffrey A. Miller
Westerman Ball Ederer Miller & Sharfstein,
LLP
1201 RXR Plaza
Uniondale, NY 11556
516-622-9200
Fax: 516-622-9212
Email: [email protected]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
represented by Jeffrey A. Miller
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
represented by Daniel Z. Mollin
Jenner & Block LLP
919 Third Avenue
New York, NY 10022
(212) 858-1000
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jennifer Weinstein Hazi represented by Robert Joseph Tolchin
The Berkman Law Office, LLC
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111 Livingston Street
Ste. 1928
V.
Defendant
Islamic Republic of Iran
Defendant
The Iranian Ministry of Information and
Security
Defendant
Ayatollah Ali Hoseini Khamenei
Defendant
Ali Akbar Hashemi-Rafsanjani
Defendant
Ali Fallahian-Khuzestani
V.
Resnondent
Bank Melli Iran New York
Representative Office
Bank Melli Iran,New York Representative
Office
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Brooklyn, NY 11201
718-855-3627
Email: [email protected]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
represented by John N. Romans
The Law Office of John N. Romans
100 Mamaroneck Avenue
Mamaroneck, NY 10543
914-315-1896
Fax:914-698-6984
Email: j [email protected]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
John D. Winter
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, NY 10036
(212) 336-2000
Fax: (212) 336-2222
Email: [email protected]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Thomas Corcoran
Berliner, Corcoran and Rowe
1101 17th Street NW
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Suite 1100
Washington, DC 20036
(202)293-5555
Resnondent
Bank Saderat Iran
Bank Saderat Iran, New York Representative
Office
Resnondent
Bank Sepah Iran
Bank Sepah Iran, New York Representative
Office
V.
Creditor
Estate of Michael Heiser
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Fax: (202)293-9035
Email: [email protected]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Laina Lopez
Berliner, Corcoran and Rowe
1101 17th Street NW
Suite 1100
Washington, DC 20036
(202)293-5555
Fax: (202)293-9035
Email: [email protected]
PROHACVICE
ATTORNEY TO BE NOTICED
Thomas C. Viles
Arshack, Hajek & Lehrman PLLC
1790 Broadway, Suite 710
New York, NY 10019
212-582-6500
Fax:212-459-0568
Email: tcviles [email protected]
TERMINATED: 11/30/2009
represented by Barbara L. Seniawski
DLA Piper LLP (US)
1251 Ave Of The Americas
New York, NY 10020
212-335-4934
Fax: 212-335-4501
ATTORNEY TO BE NOTICED
David B. Misler
DLA Piper LLP (US)
The Marbury Building
6225 Smith Avenue
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Creditor
Eastern District of New York - LIVE Database 1.5 (Revision 1.5.2)
Baltimore, MD 21209
410-580-4047
Fax: 410-580-3047
PROHACVICE
ATTORNEY TO BE NOTICED
James P. Duffy, IV
DLA Piper US LLP
1251 Avenue Of The Americas
New York, NY 10020
212-335-4500
Fax:212-884-8588
ATTORNEY TO BE NOTICED
Richard M. Kremen
DLA Piper LLP (US)
The Marbury Building
6225 Smith Avenue
Baltimore, MD 21209
410-580-4191
Fax: 410-580-3191
Email: [email protected]
ATTORNEY TO BE NOTICED
Estate of Millard D. Campbell represented by Barbara L. Seniawski
Interested Party:
(See above for address)
ATTORNEY TO BE NOTICED
David B. Misler
(See above for address)
PROHACVICE
ATTORNEY TO BE NOTICED
James P. Duffy, IV
(See above for address)
ATTORNEY TO BE NOTICED
Richard M. Kremen
(See above for address)
ATTORNEY TO BE NOTICED
United States of America
Date Filed # Docket Text
10/08/2002 1 Registration of FOREIGN WDGMENT; FILING FEE$ 30.00 RECEIPT# 7503. Entry
of judgment in the amount of$ 183,248,164.00 in favor of Plaintiffs and against
defendants. (Duong, Susan) Modified on 10/09/2002 (Entered: 10/09/2002)
10/09/2002 Statistical Case Closing (Duong, Susan) (Entered: 10/09/2002)
12/24/2002 4 ORDER TO SHOW CAUSE: Show Cause Hearing set for 11 :30 1/3/03, as to rights to
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position on the 98 MOTION to Intervene. (Romans, John) Modified text on 11/22/2010
(Glueckert, Lisa). (Entered: 11/16/2010)
11/22/2010 Motions terminated, docketed incorrectly: 107 MOTION to Intervene filed by Bank Melli
Iran New York Representative Office. Docket entry is a letter regarding the 98 Motion to
Intervene. (Glueckert, Lisa) (Entered: 11/22/2010)
11/22/2010 108 ORDER: IT IS HEREBY ORDERED that Mr. Ausili is empowered to execute a deed
conveying the property located at 135 Puritan Avenue, Forest Hills, New York, to execute
any other documents, and to take any other steps necessary, to effectuate the sale of that
property, and to receive the proceeds of the sale of that property. Ordered by Senior Judge
Leonard D. Wexler on 11/22/2010. (Glueckert, Lisa) (Entered: 11/29/2010)
12/21/2010 109 MOTION to Stay by Bank Melli Iran New York Representative Office. (Romans, John)
(Entered: 12/21/2010)
01/03/2011 ORDER granting 109 Motion to Stay the matter pending disposition of Bank Melli's
certiorari petition and any Supreme Court review. Accordingly, the Court denies the 98
Motion to Intervene without prejudice and stays any determination regarding disposition
of the net proceeds of the sale of the Property. The matter is administratively closed
pending completion of Supreme Court proceedings and may be reopened thereafter upon
request. Ordered by Senior Judge Leonard D. Wexler on 1/3/2011. (Ausili, Peter)
(Entered: 01/03/2011)
01/03/2011 ORDER denying 98 Motion to Intervene. See order entry dated 1/3/2011 for further
details. Ordered by Senior Judge Leonard D. Wexler on 1/3/2011. (Glueckert, Lisa)
(Entered: 01/04/2011)
03/20/2011 110 STATUS REPORT by Frederick M. Ausili. (Glueckert, Lisa) (Entered: 03/30/2011)
10/04/2011 ORDER. This matter has been stayed and closed pending completion of appellate
proceedings. Given the appointment of the receiver, my law clerk Peter Ausili will not
participate in proceedings in this matter. Instead, my law clerk Anne Shields is assigned
to this matter. So Ordered by Senior Judge Leonard D. Wexler on 10/4/2011. (Shields,
Anne) (Entered: 10/04/2011)
11/10/2011 111 Letter MOTION for Attorney Fees ; for a five percent (5%) fee request by the appointed
Receiver by Frederick M. Ausili. (Fagan, Linda) (Entered: 11/16/2011)
11/10/2011 ORDER granting 111 Motion for Attorney Fees. Upon the Court's review and the parties'
consent, the fee request is hereby approved and is So Ordered. ( Ordered by Senior Judge
Leonard D. Wexler on 11/10/2011.) (Fagan, Linda) (Entered: 11/16/2011)
07/06/2012 112 MOTION to Reopen Case and remove stay, now that Supreme Court has denied the
defendant's cert. petition and all appeals are exhausted, MOTION for Release of Funds
presently held in escrow by court appointed receiver from sale of subject property by
Jennifer Weinstein Hazi. (Tolchin, Robert) (Entered: 07/06/2012)
07/10/2012 113 RESPONSE to Motion re 112 MOTION to Reopen Case and remove stay, now that
Supreme Court has denied the defendant's cert. petition and all appeals are exhausted
MOTION for Release of Funds presently held in escrow by court appointed receiver from
sale of subject property filed by Estate of Michael Heiser. (Seniawski, Barbara) (Entered:
07/10/2012)
07/12/2012 114 NOTICE of Appearance by David B. Misler on behalf of Estate of Michael Heiser, Estate
of Millard D. Campbell (aty to be noticed) (Misler, David) (Entered: 07/12/2012)
07/12/2012 NOTICE; case 02mc237 (LDW) has been converted into a civil action. The civil case
number is 12cv3445 (LDW). All further entries are to be made on 12cv3445. (McMahon,
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Carol) (Entered: 07/12/2012)
07/12/2012 ORDER granting 112 Motion to Reopen Case; denying 112 Motion for Release of Funds.
The motion to reopen the case is granted. The motion for the release of funds is denied at
this time without prejudice to renewal upon this court's decision as to the previously
briefed motion to intervene. As to that motion, the proposed intervenor is directed to
provide this court with a courtesy copy of the fully briefed motion within one week of the
date of this order. So Ordered by Judge Leonard D. Wexler on 7/12/2012. (Shields, Anne)
(Entered: 07/12/2012)
07/13/2012 ORDER re Order on Motion to Reopen Case, Order on Motion for Release of Funds,,,,
The Renewed Motion to Intervene shall be briefed pursuant to the following schedule:
the inital motion papers shall be served by July 30, 2012, the opposition shall be served
by August 13, 2012, and the reply papers shall be served by August 20, 2012. All papers
shall be filed on August 20, 2012. So Ordered by Judge Leonard D. Wexler on 7/13/2012.
(Sweeney, Helen) (Entered: 07/13/2012)
08/01/2012 Case Ineligible for Arbitration (Bollbach, Jean) (Entered: 08/01/2012)
08/10/2012 115 Letter requesting modification of briefing schedule and leave to file a cross-motion by
Jennifer Weinstein Hazi (Tolchin, Robert) (Entered: 08/10/2012)
08/13/2012 116 ORDER re 115 Letter filed by Jennifer Weinstein Hazi. Request granted. Parties are to
agree on briefing schedule for cross motion and submit dates to Court in one (1) week. So
Ordered. ( Ordered by Judge Leonard D. Wexler on 8/13/2012.) (Fagan, Linda) (Entered:
08/13/2012)
08/17/2012 117 Letter advising court of briefing schedule agreed upon by the parties by Jennifer
Weinstein Hazi (Tolchin, Robert) (Entered: 08/17/2012)
08/21/2012 ORDER re 117 Letter filed by Jennifer Weinstein Hazi, 116 Order. The briefing schedule
submitted by counsel is hereby approved. All papers shall be filed on the respective reply
dates for each motion, with courtesy copies to be provided to the Court by the movant. So
Ordered by Judge Leonard D. Wexler on 8/21/2012. (Sweeney, Helen) (Entered:
08/21/2012)
08/26/2012 118 Letter on consent requesting modification of briefing schedule by Jennifer Weinstein Hazi
(Tolchin, Robert) (Entered: 08/26/2012)
08/27/2012 ORDER re 118 Letter filed by Jennifer Weinstein Hazi. The modification to the briefing
schedule, as submitted with the consent of the parties, is hereby approved. All papers
shall be filed on the respective reply dates for the motions. So Ordered by Judge Leonard
D. Wexler on 8/27/2012. (Sweeney, Helen) (Entered: 08/27/2012)
09/23/2012 119 Letter requesting modification of briefing schedule such that reply on cross motion will
be due 10-5-12 by Jennifer Weinstein Hazi (Tolchin, Robert) (Entered: 09/23/2012)
09/24/2012 120 Letter to Judge Wexler by Estate of Michael Heiser, Estate of Millard D. Campbell
(Misler, David) (Entered: 09/24/2012)
09/25/2012 ORDER re 119 Letter filed by Jennifer Weinstein Hazi, 120 Letter filed by Estate of
Michael Heiser, Estate of Millard D. Campbell. Plaintiffs' request for an extension of time
until 10/5/12 to serve reply papers is granted. All papers shall be filed on the reply date.
So Ordered by Judge Leonard D. Wexler on 9/25/2012. (Sweeney, Helen) (Entered:
09/25/2012)
10/04/2012 121 MOTION to Intervene (Renewed) by Estate of Michael Heiser, Estate of Millard D.
Campbell. (Attachments:# l Certificate of Service) (Seniawski, Barbara) (Entered:
10/04/2012)
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10/04/2012 122 MEMORANDUM in Support re 121 MOTION to Intervene (Renewed) filed by Estate of
Michael Heiser, Estate of Millard D. Campbell. (Attachments:# l Exhibit A,# 2.
Certificate of Service) (Seniawski, Barbara) (Entered: 10/04/2012)
10/04/2012 123 AFFIDAVIT/DECLARATION in Support re 121 MOTION to Intervene (Renewed) filed
by Estate of Michael Heiser, Estate of Millard D. Campbell. (Attachments:# l Exhibit 1,
# 2. Exhibit 2, # .3. Exhibit 3, # 1 Exhibit 4, # .5. Exhibit 5, # .6 Exhibit 6, # 1 Certificate of
Service) (Seniawski, Barbara) (Entered: 10/04/2012)
10/04/2012 124 MOTION to Enforce Judgment DECLARING that the proposed intervenors have no
enforceable interest in the proceeds of the sale of 13 5 Puritan Avenue, Forest Hills, New
York, presently being held in escrow by the court appointed receiver herein, Fred Ausili,
Esq. by Jennifer Weinstein Hazi. (Tolchin, Robert) (Entered: 10/04/2012)
10/04/2012 125 MEMORANDUM in Opposition re 121 MOTION to Intervene (Renewed),
MEMORANDUM in Support re 124 MOTION to Enforce Judgment DECLARING that
the proposed intervenors have no enforceable interest in the proceeds of the sale of 13 5
Puritan Avenue, Forest Hills, New York, presently being held in escrow by the court
appointed receiver herein, Fred A Ausili filed by Jennifer Weinstein Hazi. (Attachments: #
1 Exhibit A, Weinstein Judgment as docketed with the Queens County Clerk on December
3, 2002, # 2. Exhibit B, Heiser Motion for lis pendens) (Tolchin, Robert) (Entered:
10/04/2012)
10/04/2012 126 REPLY in Support re 121 MOTION to Intervene (Renewed), RESPONSE in Opposition
re 124 MOTION to Enforce Judgment DECLARING that the proposed intervenors have
no enforceable interest in the proceeds of the sale of 13 5 Puritan Avenue, Forest Hills,
New York, presently being held in escrow by the court appointed receiver herein, Fred A
filed by Estate of Michael Heiser, Estate of Millard D. Campbell. (Attachments: # 1
Certificate of Service) (Seniawski, Barbara) (Entered: 10/04/2012)
10/04/2012 127 AFFIDAVIT/DECLARATION in Support re 121 MOTION to Intervene (Renewed),
AFFIDAVIT/DECLARATION in Opposition re 124 MOTION to Enforce Judgment
DECLARING that the proposed intervenors have no enforceable interest in the proceeds
of the sale of 135 Puritan Avenue, Forest Hills, New York, presently being held in escrow
by the court appointed receiver herein, Fred A filed by Estate of Michael Heiser, Estate of
Millard D. Campbell. (Attachments: # 1 Exhibit 1, # 2. Certificate of Service) (Seniawski,
Barbara) (Entered: 10/04/2012)
10/04/2012 128 REPLY in Support re 124 MOTION to Enforce Judgment DECLARING that the
proposed intervenors have no enforceable interest in the proceeds of the sale of 135
Puritan Avenue, Forest Hills, New York, presently being held in escrow by the court
appointed receiver herein, Fred A Ausilli filed by Jennifer Weinstein Hazi. (Tolchin,
Robert) (Entered: 10/04/2012)
12/19/2012 129 STIPULATION AND [PROPOSED] ORDER by Estate of Michael Heiser, Jennifer
Weinstein Hazi, Susan Weinstein (Birnbaum, Timothy) (Entered: 12/19/2012)
12/20/2012 130 ORDER granting 121 Motion to Intervene; finding as moot 124 Motion to Enforce
Judgment. It is hereby Ordered, Adjudged and Decreed That: The motion to intervene is
granted. Within 5 days of the date of the entry of this Stipulation and Order, the Receiver
shall distribute the proceeds to the parties as follows: A. $333,776.67 to the Helsers, c/o
Richard M. Kremen, Esq. 6225 Smith Ave, Baltimore MD, 21209 via wire transfer to
DLA Piper LLP (US)'s Escrow account; and B. $1,021,736.36 to the Weinsteins c.o
Robert Tolchin, Esq. The Berkman Law Office, LLC, 111 Livingston St. Suite 1928
Brooklyn, NY 11201, via wire transfer to that firm's escrow account or check payable to
"The Berkman Law Office, LLC as attorneys." C. Any residual funds remaining in the
Blocked Accout after making distributions (A) and (B) listed above shall be distributed
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by the Receiver 38% to the Heisers, and 62% to the Weinsteins, via wire transfer or check
in the same manner as indicated in (A)and (B) above. All other outstanding motions shall
be denied as moot. So Ordered .. Ordered by Judge Leonard D. Wexler on 12/20/2012.
(Padilla, Kristin) (Entered: 12/20/2012)
03/03/2015 131 Letter requesting that Court so-order confidentiality stipulation with respect to judgment
enforcement discovery by Jennifer Weinstein Hazi, Jeffrey A. Miller, Susan Weinstein,
STIPULATION by Jennifer Weinstein Hazi, Jeffrey A. Miller, Susan Weinstein
(Attachments:# l Exhibit Stipulation to be so-ordered) (Tolchin, Robert) (Entered:
03/03/2015)
03/09/2015 ORDER re 131 Letter, Stipulation, filed by Jeffrey A. Miller, Jennifer Weinstein Hazi,
Susan Weinstein. Counsel are directed to appear for a conference on March 18, 2015 at
10:30am in Courtroom 940. So Ordered by Judge Leonard D. Wexler on 3/9/2015.
(Sweeney, Helen) (Entered: 03/09/2015)
03/17/2015 132 Letter by Jennifer Weinstein Hazi, Jeffrey A. Miller, Susan Weinstein (Attachments:# l
Exhibit A - Email from CCB's counsel) (Tolchin, Robert) (Entered: 03/17/2015)
I II II II
I II II II
I II II 11
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ANNEX310

Bennett v. Islamic Republic of Iran, 604 F.Supp.2d 152 (2009)
604 F.Supp.2d 152
United States District Court,
District of Columbia.
Michael BENNETT and Linda Bennett
Individually and as Co-Administrator of
the Estate of Marla Ann Bennett,
Plaintiffs,
v.
The ISLAMIC REPUBLIC OF IRAN, et
al., Defendants.
No. 03-CV-1486 (RCL).
I
March 31, 2009.
Synopsis
Background: Following grant of default judgment, 507
F.Supp.2d 117, in action, under the state-sponsored
terrorism exception to the Foreign Sovereign Immunities
Act (FSIA), alleging that the Islamic Republic of Iran and
its Ministry of Information and Security (MOIS) provided
material support to terrorists who carried out a bombing at
a university in Israel which resulted in the killing of an
American citizen, United States moved to quash five writs
of attachment issued against properties belonging to the
Iranian government.
Holdings: The District Court, Royce C. Lamberth, Chief
Judge, held that:
former diplomatic properties of the Islamic Republic of
Iran were immune from attachment, and
U.S. had standing to move to quash writs of attachment.
Motion granted.
Attorneys and Law Firms
*154 Ronald Alvin Karp, Karp, Frosh, Lapidus,
Wigodsky & Norwind, P.A., Rockville, MD, Thomas
Fortune Fay, Washington, DC, for Plaintiffs.
MEMORANDUM OPINION
ROYCE C. LAMBERTH, Chief Judge.
The United States has moved to quash five writs of
attachment issued against properties belonging to the
Islamic Republic of Iran. Dk. # 34. These properties
largely comprise the former Iranian Embassy compound
here in Washington, D.C. This includes the former
Ambassador's residence, Iran's former Embassy
Chancery, as well as a separate diplomatic residence, and
two parking lots.' Plaintiffs obtained the writs attaching
these properties of Iran in an effort to satisfy a judgment
they received in an action pursuant to the 28 U.S.C. §
1605(a)(7), the state sponsor of terrorism exception to
sovereign immunity. See Dk. # s 20--22. For the reasons
expressed herein, the Court will grant the Government's
motion to quash the writs of attachment.
Facts and Procedural History
Marla Ann Bennett, an American citizen and resident of
California, was just 24 years old when she was murdered
by terrorists. She was killed when Hamas operatives
detonated a bomb inside a cafeteria at the Hebrew
University in Jerusalem in July of 2002. In an effort to
achieve some measure of justice, Marla's parents brought
a civil action against Iran and its Ministry of Information
and Security (MOIS) under § 1605(a)(7). The Bennetts
demonstrated through evidence satisfactory to this Court,
see § 1608(e), that Iran and its MOIS provided material
support to Hamas in furtherance of terrorist objectives.
See Bennett v. Islamic Republic of Iran, 507 F.Supp.2d
117 (D.D.C.2007) (Lamberth, J.). Plaintiffs were awarded
a judgment in excess of 12 million dollars. To date, that
judgment remains unsatisfied.
In an effort to execute their judgment against Iran,
plaintiffs procured the writs of attachment on the
properties at issue in this case. Due to the manner in
which plaintiffs attached these former diplomatic
properties, however, this matter has a strange and
somewhat tortured procedural history. Contrary to the
usual procedure for the issuance of writs of attachment, in
*155 which the request is handled directly by the Clerk's
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Annex 310
Bennett v. Islamic Republic of Iran, 604 F.Supp.2d 152 (2009)
office in accordance with long-standing procedures
established by this Court, plaintiffs' counsel instead filed
a separate motion requesting that this Judge specifically
order the Clerk of Court to issue the five writs. See Dk. #
22. Plaintiffs' counsel later filed a supplemental
memorandum in support of the motion for writs of
attachment. See Dk. # 24. In that memorandum, counsel
observes that in Flatow v. Islamic Republic of Iran this
Judge quashed five writs of attachment on some of the
very same properties at issue here. See Dk. # 24 at p. 2
(citing 76 F.Supp.2d 16 (D.D.C.1999) (Lamberth, J.))2
Counsel argues, however, that both the relevant facts and
the applicable law have changed since that decision in
Flatow and, as a result of those changes, Iran's properties
here in Washington are no longer immune from
attachment. See id. at 2-7.
At the time plaintiffs' supplemental memorandum was
filed, the United States had not yet entered an appearance
in this action, let alone moved to quash plaintiffs' writs of
attachment. Nonetheless, plaintiffs' counsel suggests in
his supplemental memorandum that the United States
does not have standing to move this Court to quash writs
of attachment issued against Iran's former embassy
properties, notwithstanding the fact that it was the United
States that successfully moved to quash the writs in
Flatow. See Dk. # 24, p. 7-10. Counsel's argument relies
heavily-if not exclusively-on Rubin v. Islamic
Republic of Iran, a case from the Northern District of
Illinois in which the court held that the University of
Chicago did not have standing to challenge writs of
attachments issued against collections of Persian artifacts
on loan to the university from Iran. See id. (citing 408
F.Supp.2d 549 (N.D.Ill.2005)).3
Plaintiffs' counsel ultimately withdrew his motion for an
order to issue of writs of attachment, but the writs of
attachment were issued by the Clerk of the Court about a
week later on April 1, 2008. See Dk. # 26. Counsel
subsequently filed executed returns on the writs on June
5, 2008. See Dk. # s 27-31. Accordingly, the record
suggests that the plaintiffs' counsel withdrew the motion
in order to procure the writs through the Clerk's office in
accordance with the normal and long-established
procedures of this Court. While this Court normally does
not consider motions or other matters that have been
withdraw by counsel, this Court will nonetheless accept
the withdrawn motion and supplemental memorandum for
the limited purpose of establishing that counsel believed
he had some good faith basis for procuring writs of
attachment against former diplomatic properties of Iran.
*156 Undeterred by plaintiffs' peremptory arguments, the
United States moved to quash all five writs of attachment
on July 18, 2008. See Dk. # 34. Plaintiffs filed their
opposition in a timely manner and the United States
timely filed its reply. See Dk. # s 35 & 36. More than two
months later, however, and without leave of the Court,
plaintiff filed another supplemental memorandum and
several exhibits as additional support for their opposition
to the Government's motion to quash. Dk. # 37. The
Government then filed a response to the plaintiffs'
supplemental memorandum four days later on October 21,
2008. See Dk. # 40. In that response, the Government
requests that plaintiffs' supplemental filing be struck from
the record or disregarded.
Arguments of the Parties
The United States
The United States argues that plaintiffs' writs of
attachment must be quashed because the properties at
issue are immune from attachment in light of several
important legal authorities. The United States calls this
Court's attention to the Vienna Convention on Diplomatic
Relations (Vienna Convention), 23 U.S.T. 3227, T.I.A.S.
No. 7502 (1972), the Foreign Missions Act, 22 U.S.C. §§
4301, et seq., the Foreign Sovereign Immunities Act
(FSIA), 28 U.S.C. §§ 1602, et seq., the Terrorism Risk
Insurance Act (TRIA), Pub.L. No. 107-297, Title II, §
201 (Nov. 26, 2002), codified as 28 U.S.C. § 1610 Note,
and several Executive Orders and Federal Regulations
relating to properties belonging to Iran in the United
States. See Dk. # 34. The Government emphasizes that the
United States is now holding the former diplomatic
properties of Iran in protective custody pursuant to the
terms of the Foreign Missions Act and consistent with the
Federal Government's obligations under the Vienna
Convention. See Id. at p. 1, 8-10, Exh. 1. The United
States claims that, in order to fulfill its responsibilities
under the Vienna Convention and Foreign Missions Act,
the State Department's Office of Foreign Missions (OFM)
has periodically leased Iran's properties to other foreign
governments or to private parties and has used the income
derived from those rentals to fund necessary maintenance
and repairs of the properties. See Dk. 34 at p. 10.
In light of its multilateral treaty and statutory obligations,
as well as the overall importance of the foreign policy
interests presented here, the United States stresses that it
therefore has at least two independent bases on which it
may assert standing in this action. First, the Government
relies on 28 U.S.C. § 517, which vests the Attorney
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Bennett v. Islamic Republic of Iran, 604 F.Supp.2d 152 (2009)
General with broad authority "to send any officer of the
Department of Justice to 'attend to the interests of the
United States in a suit pending in a court of the United
States.' " Id. at p. 11. Second, the United States argues
that, regardless of the scope of any statutory authority
provided under 28 U.S.C. § 517, long-standing case
precedent establishes that the Federal Government has
standing to assert and protect its own important foreign
policy interests. See Id. See also Dk.# 36 at p. 1-5.
The Government observes that on at least two prior
occasions this Court determined that the very properties at
issue here are immune from attachment. See Id. at p.
20--21 (citing Flatow v. Islamic Republic of Iran, 74
F.Supp.2d 18 (D.D.C.1999); Mousa v. Islamic Republic of
Iran, 00--cv-2096, 2003 WL 24207777 (D.D.C.2003)
(Bryant, J.)). According to the Government there's been
no subsequent change in the applicable facts or law the
would render those properties subject to attachment now.
See id. at 13-21; Dk. # 36, p. 6-7. In particular, the
Government emphasizes that Congress did not *157
intend that the enactment of § 1083 of the 2008 NOAA
and the new state sponsor of terrorism exception 1605A
to allow for the attachment of diplomatic properties. See
Dk.# 34 at p. 13-16.
Finally, the Government asks that this Court strike or
otherwise disregard plaintiffs supplemental filings in this
matter. See Dk. # 40. The United States emphasizes that
the supplemental materials were filed in contravention of
the local rules without leave of the Court, and that, in any
event, the materials are not relevant to this dispute. See id.
Plaintiffs Michael and Linda Bennett
Plaintiffs' primary argument is the United States does not
have standing to challenge the writs of attachment issued
against Iran's former diplomatic properties. See Dk. 35 at
p. 1-5. In plaintiffs' brief that is heavy on rhetoric,
counsel is largely dismissive of the United States'
position, asserting that it is "insulting to the intelligence
of the American people." Id. at p. 4. Plaintiffs' counsel
cast the United States as effectively mounting a defense
of Iran, and argues that the United States should be
precluded from doing so in this case because Iran has
proven more than capable of defending itself in actions in
this district and in other federal courts throughout the
country. Id. at 2-5. Counsel again relies on Rubin v.
Islamic Republic of Iran, a case pending in Chicago in
which the federal district court there determined that
certain private litigants-the University of Chicago and
others-do not have standing to assert sovereign
immunity in an action in which certain judgment-creditors
of Iran are seeking attachment or execution of certain
artifacts on loan from Iran to the University of Chicago.
See Dk. 35 at p. 2-5.
On the merits, plaintiffs claim that neither the Vienna
Convention nor the Foreign Missions Act precludes
attachment of properties once used for diplomatic
purposes when, as here, the United States and the foreign
nation no longer maintain formal diplomatic relations and
the properties at issue are unoccupied and have fallen into
disuse and disrepair. See id. at p. 5-8. Indeed, counsel
alleges that the former embassy properties at issue in this
case are currently in such a state of disuse and disrepair
that the properties are not capable of being used for
diplomatic purposes and therefore offer nothing more
than investment value. See id. at p. 6-9. Moreover,
plaintiffs suggest that to the extent that the State
Department might have either the legal obligation or the
authority to assert custody and control over a foreign
mission properties, the current state of disrepair of Iran's
former embassy properties shows that the United States
has completely abdicated its responsibility in this case.
Accordingly, in plaintiffs' view, the properties should
now, at a minimum, be subject to attachment under the
commercial activities exception to the FSIA. See id. at
7-10.
Plaintiffs also assert that, regardless of whether Iran's
properties in this case might ordinarily be entitled to
diplomatic protection or some other immunity from
attachment, recent changes to the FSIA-specifically, the
sweeping changes enacted through § 1038 of the NOAA
last year-render diplomatic properties of state sponsors
of terrorism subject to attachment and execution.
Plaintiffs argue that for the purpose of attaching Iran's
property, it does not matter that their action falls under the
prior version of the state sponsor of terrorism exception, §
1605(a)(7), rather than § 1605A, because in plaintiffs'
view, the new law simply strips away any immunity from
attachment or execution that the diplomatic properties of
terrorist nations might have otherwise enjoyed.
*158 More than two months after the conclusion of
briefing on this matter, plaintiffs filed a supplemental
memorandum and exhibits in an apparent effort to bolster
their position that the properties Iran once used for its
embassy here in Washington are no longer immune from
attachment. See Dk. # 37. The memorandum, which was
filed without leave of the Court, summarizes plaintiffs'
failed attempts to obtain information from the Department
of State regarding the leasing and maintenance of the
properties as issue, as well as other information
concerning discussions between the United States and
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Bennett v. Islamic Republic of Iran, 604 F.Supp.2d 152 (2009)
Iran regarding the status of Iran embassy properties. 4
The remainder of the supplemental memorandum simply
summarizes the testimony provided in two supplemental
exhibits. The first exhibit is a transcript of deposition
testimony of a witness who claims that the former United
States embassy in Tehran, Iran has been used as a school
for Iran's Revolutionary Guards sometime within the last
three years. See Dk. # 37 at p. 3 & Exh. F. The relevance
of this testimony is not apparent and no explanation is
proffered by plaintiffs' counsel. Perhaps plaintiff means
to suggest that Iran is in material breach of its obligations
under the Vienna Convention, and that therefore the
United States is no longer obligated to protect Iran's
former diplomatic properties here in the United States.
The second exhibit included with the supplement is a
transcript of deposition testimony of a witness who claims
he is a construction worker who once worked on the
buildings located on the properties now subject to
plaintiffs' writs of attachment. See Dk.# 37 at p. 3 & Exh.
G. The witness' testimony largely supports plaintiffs'
assertions that former diplomatic properties are not
currently in use and have fallen into various states of
disrepair. 5
This Court will address each of the arguments of the
parties in turn. Before proceeding to analysis of those
arguments, however, the Court believes it is important to
provide the legal and factual backdrop that is essential to
an understanding of the issues involved in this dispute. A
decade has passed since this Court first ruled, in the case
of Flatow v. Islamic Republic of Iran, that the former
embassy properties at issue here today are not subject to
attachment and execution under the FSIA. Both plaintiffs
and the United States have identified a number of
developments in the law relating to this matter since that
decision. While this Court is not convinced *159 that
there is has been any change in the law that would require
a different outcome in this case, it is with sincere respect
for the plaintiffs in this action, that this Court will briefly
review the controlling legal authorities, as well as the key
facts concerning diplomatic relations between the United
States and Iran, in order to examine carefully whether the
relief denied to the Flatows ten years ago should be
available to the Bennetts today
Discussion of Legal and Factual Background
Concerning the Former Iranian Embassy Properties
here in Washington, D.C.
There are basically five sources of law that are central to
the resolution this dispute. The first source of law that
undergirds this whole matter is the Vienna Convention on
Diplomatic Relations. The second is the Foreign Missions
Act, which in certain critical respects serves to implement
the United States' obligations under the Vienna
Convention. The third source is the Foreign Sovereign
Immunities Act, §§ 1609, 1610, including the key
amendments made pursuant to the Terrorism Risk
Insurance Act, which furnishes a number of exceptions to
the general rule that the property of a foreign sovereign is
immune from attachment or execution. The fourth key
source of law in this sensitive foreign relations matter is
the Executive Branch's official actions in response to the
breakdown in diplomatic relations with Iran. This source
of legal authority includes both Executive Orders and
statements issued by the United States to Iran regarding
the status of its mission properties here in the United
States. Fifth, and finally, this Court will review the few
decisions of this Court and others that have addressed the
issue of whether Iran's properties that are no longer being
used by Iran for diplomatic purposes should now be
subject to attachment in execution in satisfaction of court
judgments. A review of all five of these sources
demonstrates that the laws of the United States do not
permit this Court to sustain plaintiffs' writs of attachment.
(1) The Vienna Convention
In 1972, the United States ratified the Vienna Convention
on Diplomatic Relations. 23 U.S.T. 3227, T.I.A.S. No.
7502. Under the terms of that treaty, the United States, in
its role as a receiving state of foreign missions, is
obligated to protect and respect the premises of any
foreign mission located within its sovereign territory.
Article 22 of the Convention outlines the basic
responsibilities of a receiving state with respect to the
property of a foreign mission. That Article provides that
the property of a foreign mission is "inviolable," and thus
the receiving state is under a "special duty to take all
appropriate steps to protect the premises of the mission
against any intrusion or damage." Moreover, "[t]he
premises of the mission, their furnishings and other
property thereon and the means of transport of the
mission shall be immune from search, requisition,
attachment, or execution." Article 22(3) (emphasis
added).
Article 45 of the Vienna Convention makes clear that the
obligation to protect and respect the premises of a foreign
mission survives even in cases in which diplomatic
relations are broken off, or in cases in which the mission
is permanently recalled, and even during instances of
armed conflict. Article 45 states as follows
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If diplomatic relations are broken off between two
States, or if a mission is permanently or temporarily
recalled:
(a) the receiving State must, even in case of armed
conflict, respect and protect the premises of the
mission, together with its property and archives;
*160 (b) the sending State may entrust the custody of
the premises of the mission, together with its
property and archives, to a third State acceptable to
the receiving State;
( c) the sending State may entrust the protection of its
interests and those of its nationals to a third State
acceptable to the receiving State.
Thus, even during periods in which the United States is
experiencing an extremely strained or outright hostile
relationship with a foreign nation, the United States
remains obligated to protect that nation's diplomatic
properties.
(2) The Foreign Missions Act
The Foreign Mission Act, 22 U.S.C. §§ 4301, et seq.,
vests the Department of State with broad authority to
make determinations with respect to the treatment
accorded to foreign missions here in the United States.
Palestine Information Office v. Shultz, 853 F.2d 932, 936
(D.C.Cir.1988). Specifically, 22 U.S.C. § 430l(c)
provides that:
The treatment to be accorded to a foreign mission in the
United States shall be determined by the Secretary after
due consideration of the benefits, privileges, and
immunities provided to missions of the United States in
the country or territory represented by that foreign
mission, as well as matters relating to the protection of
the interests of the United States.
The State Department "acts at the apex of its power"
when it exercises its authority over foreign missions here
in the United States because "it wields the combined
power of both the executive and legislative branches."
Palestine Information Office, 853 F.2d at 937.
The foreign Mission Act expressly authorizes the
Secretary of State to protect the properties of foreign
missions here in the United States even when those
properties are not being used by a foreign power.
Specifically, the Secretary of State may "protect and
preserve property of a foreign mission" when that
"foreign rmss10n has ceased conducting diplomatic,
consular, and other governmental activities in the United
States and has not designated a protecting power or other
agent approved by the Secretary to be responsible for the
property of that foreign mission." § 4305(c). Thus, the
former diplomatic properties here in the United States are
ultimately subject to the authority and control of the
Secretary of State.
The Office of Foreign Missions (OFM) is the arm of the
State Department that acts pursuant to the Secretary of
State's broad authority with respect to treatment and
oversight of foreign mission properties, including former
diplomatic properties located here in the United States.
See 4303; Dk. 34, Exh. 1 at p. 1-2. Consistent with the
Vienna Convention, the Foreign Mission Act also
provides that foreign mission property within the control
of the Department State is not subject to attachment or
execution. Section 4308(f) provides as follows:
Assets of or under the control of the Department of
State, wherever situated, which are used by or held for
the use of a foreign mission shall not be subject to
attachment, execution, injunction, or similar process,
whether immediate or final (emphasis added).
Accordingly, the Foreign Mission Act reinforces the basic
understanding that properties of a foreign mission,
including those that are not currently being used by a
foreign mission, are generally immune from attachment or
execution.
(3) Foreign Sovereign Immunities Act, §§ 1609, 1610,
Including Provisions Incorporated by the Terrorism
Risk Insurance Act
The Foreign Sovereign Immunities Act, provides that the
property of a foreign *161 state is generally immune from
attachment or execution subject to a few, carefully
delineated exceptions. See 28 U.S.C. §§ 1609, 1610. The
exceptions to that immunity are found in § 1610. One
well-established exception to the general rule of immunity
from attachment or execution is the so called "commercial
activity" exception. See § 1610(a)(7); Republic of
Argentina v. Weltover, 504 U.S. 607, 112 S.Ct. 2160, 119
L.Ed.2d 394 (1992). That exception provides that the
property of a foreign state is not immune from attachment
or execution if the property at issue "is used for a
commercial activity" by the foreign state. § 1610(a)(7).
Congress has enacted an exception to immunity for any
property belonging to designated state sponsors of
terrorism. See Pub.L. 105-277, Div. A., Title I, § 117
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Bennett v. Islamic Republic of Iran, 604 F.Supp.2d 152 (2009)
(October 21, 1998). That exception-now codified as §
1610-would otherwise permit the attachment of blocked
assets of terrorist states, including former diplomatic
properties, but Congress gave the President express
authority to waive the exception in the interest of national
security, and the President promptly executed the waiver
upon signing the legislation into law. See Pres.
Determination No. 99-1, 63 FR 59201. (1998).
A term later, Congress attempted to override the
President's waiver of § 1610(f) in the Victims of
Trafficking and Violence Protection Act (VTVP A) of
2000. See Pub.L. 106--386, § 2002, 114 Stat. 1541
(October 28, 2000), but Congress again included in the
legislation express authority for the President to waive §
1610(f). The President immediately waived §
1610(f)(l)(A) a second time upon signing the VTVPA
into law, and thus § 1610 remains a nullity. See Pres.
Determination No 2001-03, 65 Fed. Reg. 66483 (2000).
Congress and the President eventually reached an
agreement with respect to the attachment and execution of
certain blocked assets of terrorist states, and enacted the
Terrorism Risk Insurance Act (TRIA) in 2002, a law that
permits terrorism victims with judgments under §
1605(a)(7) to satisfy their judgments for compensatory
damages from "blocked assets of terrorists, terrorist
organizations, and State sponsors or terrorism." See
Pub.L. No. 107-297, Title II, 201 (Nov. 26, 2002); now
codified as 28 U.S.C. § 1610 Note.
Specifically, Section 201 of the TRIA provides that the
blocked assets of a terrorist state shall be subject to
execution or attachment in aid of execution to satisfy such
judgment to the extent of any compensatory damages for
which such terrorist party has been adjudged liable
(emphasis added).
The definition of "blocked assets" under the TRIA,
however, expressly excludes "property subject to Vienna
Convention on Diplomatic relations, or that enjoys
equivalent privileges and immunities under the law of the
United States, being used for exclusively for diplomatic
or consular purposes." Section 201(d)(2)(B)(ii). The
TRIA defines diplomatic and consular property as
follows:
The term "property subject to the Vienna Convention
on Diplomatic Relations or the Vienna Convention on
Consular Relations" and the term "asset subject to the
Vienna Convention on Diplomatic Relations or the
Vienna Convention on Consular Relations" mean any
property or asset, respectively, the attachment in aid of
execution or execution of which would result in a
violation of an obligation of the United States under the
Vienna Convention on Diplomatic Relations or the
Vienna Convention on Consular Relations, as the case
maybe.
Section 20l(d)(3).
*162 Accordingly, properties subject to the Vienna
Convention that are being held exclusively for diplomatic
purposes are not subject to attachment under the TRIA.
Last term, with the enactment of the § 1083 of the 2008
National Defense Appropriations Act (NOAA), Congress
implemented changes to the FSIA in an effort to clarify
the circumstances under which the property of a foreign
state sponsor of terrorism is subject to attachment and
execution. See Pub.L. No. 110-181, 122 Stat. 3, § 1083.
The result is now codified as 28 USC. § 1610(g). That
new section provides:
(g) Property in certain actions.-
(1) In general.-Subject to paragraph (3), the
property of a foreign state against which a judgment
is entered under section 1605A, and the property of
an agency or instrumentality of such a state,
including property that is a separate juridical entity
or is an interest held directly or indirectly in a
separate juridicial entity, is subject to attachment in
aid of execution, and execution, upon that judgment
as provided in this section, regardless of-
(A) the level of economic control over the property
by the Government of the foreign state;
(B) whether the profits of the property go to that
government;
(C) the degree to which officials of that government
manage the property or otherwise control its daily
affairs
(D) whether the government is the sole beneficiary in
interest of the property; or
(E) whether establishing the property as a separate
entity would entitle the foreign state to benefits in
United States Courts while avoiding its obligations.
Notably, § 1610(g) is silent with respect to diplomatic
properties; it makes no mention of the Vienna
Convention, the Foreign Mission Act, or the TRIA, and
does not otherwise evince an intent to allow for the
attachment of diplomatic proprieties. Thus, even if the full
scope or application of § 1610(g) is not entirely clear, a
plain reading of the new enactment in now way provides a
sufficient basis for stripping away the immunity long
afforded to diplomatic property.
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This plain reading and common sense understanding of
the statute is reinforced by the Conference Report to §
1083, which strongly suggests that Congress did not
intend for § 1610(g) to allow for attachment or execution
of diplomatic properties. That Report states: "The
conferees intend that property used for purposes of
maintaining a diplomatic of consular mission or the
residence of the Chief of Mission, which is not subject to
execution or attachment in aid of execution of a judgment,
should not be subject to a lien of lis pendens under this
provision." See Conf. Rep. to H.R. 1585, p. 10010
(December 6, 2007). Accordingly, it appears that
Congress drafted § 1610(g) with the assumption that
diplomatic properties are not subject to attachment.
Moreover, § 1610(g), by its express terms, applies only to
')udgments entered under 1605A," and thus this new
provision is not available to plaintiffs, like the Bennetts in
this action, who have judgments under § 1605(a)(7).
(4) Executive Actions Pertaining to Iran's Foreign
Mission Properties
Plaintiffs' effort to attach properties that once served as
the Iranian Embassy complex directly implicates United
States foreign policy, including sensitive national security
concerns, and thus the status this Court should accord
those properties, and, ultimately, the issue of whether they
should be subject to attachment, *163 depends in large
part on the policy decisions of the President and other
actions taken by the Executive Branch. As the Supreme
Court has recognized time and again, "[m]atters relating
to the conduct of foreign relations ... are so exclusively
entrusted to the political branches of government as to be
largely immune from judicial inquiry or interference."
Regan v. Wald, 468 U.S. 222, 242, 104 S.Ct. 3026, 82
L.Ed.2d 171 (1984)(quoting Harisiades v. Shaughnessy,
342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952)). This is
true particularly where, as here, Congress has vested the
State Department with sweeping authority to manage
former diplomatic properties in the United States.
Palestine Information Office, 853 F.2d at 937; See Dames
& Moore v. Regan, 453 U.S. 654, 669, 101 S.Ct. 2972, 69
L.Ed.2d 918 (1981). A review of the policy decisions in
this area reveals in no uncertain terms that the Executive
Branch has consistently taken the position that properties
once used by the Iranian Foreign Mission should be
protected under the Vienna Convention and are therefore
immune from attachment.
The relationship between Iran and the United States
deteriorated as a result of the Iran hostage crisis, which
began on November 4, 1979, when a large group of
Islamist students seized the American Embassy in Tehran
and took all 52 members of the embassy staff as hostages.
In response to this crisis, President Carter issued an
Executive Order blocking all Iranian assets in the United
States. Executive Order 12170, 44 FR 65729 (November
14, 1979). At that time, Iran continued to use the
properties of its foreign mission here in the United States,
including its diplomatic properties here in the Nation's
Capitol.6
Approximately five months later, as the hostage crisis
waned on, President Carter severed diplomatic relations.
In accordance with the President's directive, the Secretary
of State, by diplomatic note, informed the Embassy of
Iran on April 7, 1979 that all Iran's diplomatic properties
were to be closed and sealed, except to the extent that
such properties might be used, with State Department
approval, by a designated protecting power for Iran.
About a year later, on April 14, 1980, Algeria was
approved by the State Department as the protecting power
for Iranian *164 interests in the United States.7 At that
time, however, the Department of State informed Algeria
that the United States would retain custody of Iran's
diplomatic premises until the United States, or its
Protecting Power, regained custody of the American
embassy in Tehran. The State Department later stressed
that its refusal to tum over Iranian diplomatic properties
to Algeria, "was a reciprocal action taken in response to
Iran's breach of its obligations under the Vienna
Contention to respect and protect the diplomatic and
consular properties of the United States and to permit
Switzerland, the United States Protecting Power in Iran,
to assume custody of those properties." Dk. # 34, Exh. 1
atp. 4.
Thus, the State Department asserted control over Iran's
diplomatic properties here in the United States and
Algeria was never authorized to take custody of Iran's
diplomatic properties. In response to concerns expressed
by Algeria regarding the security and upkeep of Iran's
diplomatic properties, the State Department assured
Algeria that it would take appropriate measures ensure the
safety and protection of Iran's diplomatic properties
within the United States. See Dk.# 34, Exh. 1 at p. 3.
In 1982, Congress passed the Foreign Missions Act,
which as noted above established the Office of Foreign
Missions and formalized the State Department's authority
and responsibilities with respect to diplomatic properties
in the United States. After considering ways to maintain
Iran's official properties consistent with the Vienna
Convention, OFM eventually decided that, to the extent
possible, it would rent Iran's properties in furtherance of
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its obligations to protect those properties under the
Vienna Convention. The State Department, which was
then under the administration of President Ronald
Reagan, promptly informed Algeria of its decision by
diplomatic note, dated March 10, 1983. That note reads in
pertinent parts as follows:
Since assuming custody of the Iranian properties
following the break in diplomatic relations, the
Department has undertaken to respect and protect them
in accordance with Article 45 of the Vienna
Convention on Diplomatic Relations.
.... The Department considers that rental would protect
Iran's interest in these properties by ensuring
maintenance of their commercial value.
It would be appreciated if the Embassy of the
Democratic and Popular republic of Algeria Could
transmit the foregoing message to the Government of
the Islamic Republic of Iran as soon as feasible.
Department of State, Washington, March 10, 19838
Since 1983, OFM has periodically rented Iran's
diplomatic properties to both foreign states and states
private parties. For instance, the Embassy building and
the diplomatic residence on Garfield Street have been
rented out to private tenants over the years; Iran's former
Chancery at 3005 Massachusetts A venue was rented out
to Turkey for a period of time; and the parking lots have
been rented out periodically to other foreign missions or
private parties. Id. at p. 6-8. At the moment, however, the
properties are not being rented and the buildings on the
properties *165 are in need of repair. Id.; Dk. # 35 at p. 7
According to Deputy Assistant Secretary Nebel, the
OFM' s "actions in connection with the maintenance and
rental of Iran's diplomatic and consular property have
been and to be taken exclusively for diplomatic and
consular purposes as such actions are in furtherance of
obligations of the United States, as the receiving State, to
protect the property pursuant to the Vienna Conventions."
Id. at p. 5. The proceeds from the rental of the properties
are used to maintain and repair the properties and any
excess funds "are deposited in a blocked Iranian
diplomatic account and not used for any other purpose."
Id.
Notably, OFM "protects and preserves the Iranian
diplomatic properties in a manner consistent with the
offices' s management of other countries' diplomatic
properties when, in the absence of diplomatic relations,
custody has not been turned over to a protecting power."
Id. at p. 5. In the 1980s, for example, OFM renovated and
rented out the diplomatic properties of Vietnam and
Cambodia. Since the United States resumed normal
diplomatic relations with those countries, both nations
have returned their foreign missions to their respective
properties here in the United States. Moreover, Assistant
Deputy Secretary Nebel claims that, "as a direct result of
the actions of the United States protecting Vietnam's
properties during the absence of relations and returning
those properties when relations resumed, Vietnam
returned to the U.S. numerous U.S. diplomatic properties
in Vietnam." Id. at p. 6
President Clinton, who normalized United States
diplomatic relations with Vietnam, twice executed
waivers with respect to provisions of the FSIA that would
have otherwise permitted the attachment of diplomatic
properties owned by state sponsors of terrorism, as
explained above. When President Clinton first exercised
his express waiver authority in order to protect diplomatic
properties of states sponsors of terrorism, the White
House issued the following statement:
[T]he Struggle to defeat terrorism would be weakened,
not strengthened, by putting into effect a provision of
the Omnibus Appropriations Act for FY 1999. It would
permit individuals who win court judgments against
nations on the State Department's terrorist list to attach
embassies and certain other properties of foreign
nations, despite U.S. laws and treaty obligations barring
such attachment.
The new law allows the President to waive the
provision in the interest of national security interest of
the United States. President Clinton signed the bill, and
in the interests of protecting America's security, has
exercised the waiver authority. If the U.S. permitted
attachment of diplomatic properties, the other countries
could retaliate, placing our embassies and citizens
overseas at grave risk. Our ability to use foreign
properties as leverage in foreign policy disputes would
also be undermined.
Statement by the Press Secretary (October 21, 1998)
(reproduced in Suits Against State Sponsors of
Terrorism, Congressional Research Serv. Rep.
RL31258 at p. 51) (updated August 8, 2008).
As the White House's statement clearly indicates, the
Clinton Administration feared that permitting FSIA
judgment-creditors to attach "embassies and certain other
properties of foreign nations" would undercut United
States' treaty obligations and have substantial negative
consequences with respect national security and foreign
relations matters.
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Bennett v. Islamic Republic of Iran, 604 F.Supp.2d 152 (2009)
*166 Last summer, the Justice Department, then under the
control of the Bush administration filed the pending
motion to quash the five writs of attachment on Iran
diplomatic properties issued in this case on behalf of
Michael and Linda Bennett and the Estate of their
daughter, Marla Ann Bennett. As Deputy Assistant
Secretary Nebel's declaration makes clear, the State
Department's position then, and presumably now, is
entirely consistent with the position taken by the State
Department throughout the preceding two decades during
which the Department has stressed, time and again, that
Iran's diplomatic properties are under the protective
custody of the OFM in accordance with the Federal
Government's responsibility to respect and protect those
premises under Articles 22 and 45 of the Vienna
Convention.
A review of the relevant Executive Branch decisions and
actions since the termination of diplomatic relations with
Iran in 1980 reveals that there has been universal
agreement-as specifically expressed by at least four
different Presidential administrations and through the
more than 30 years of continued preservation of Iranian
diplomatic properties-that the protection of these
properties is an important foreign policy objective of the
United States.
(5) Prior Decisions Regarding Efforts to Attach Iran
Former Diplomatic Properties
As noted above, this case is not the first time that a
judgment-creditor of Iran has sought to attach properties
that Iran formerly maintained for its diplomatic mission.
Indeed, this Court has ruled on three different occasions
with respect to efforts to attach many of the very same
Iranian embassy properties that are now at issue in this
case. See Flatow, 76 F.Supp.2d 16; Mousa v. Iran,
00-cv-2096, 2003 WL 24207777 (D.D.C.2003) (Bryant,
J.); Elahi v. Islamic Republic of Iran, 99-cv02802
(D.D.C.2003) (Lamberth, J). Moreover, a few other courts
have had opportunity to pass on similar efforts to attach
Iranian diplomatic or consular properties within their
respective jurisdictions. See Hegna v. Islamic Republic of
Iran, 376 F.3d 485 (5th Cir.2004); Hegna v. Islamic
Republic of Iran, 287 F.Supp.2d 608 (D.Md.2003).
Without exception, every court that has passed on the
question has determined that the properties Iran once used
for diplomatic purposes here in the United States are not
subject to attachment or execution. In Flatow, for
example, this Court ruled that the commercial activity
exception to the FSIA, § 1610(a)(7), does not permit the
attachment of Iran's real properties that were once used
for diplomatic purposes when these properties are held
and maintained in protective custody by the OFM. 76
F.Supp.2d at 23. Moreover, in an unpublished ruling in
Elahi, this Court determined that the attachment of these
properties would violate multi-lateral treaty obligations
owed by the United States under both the Vienna
Convention. 00-cv-02802, p. 2-3. Consequently, this
Court ruled in that case that the TRIA had excluded these
former diplomatic properties from the definition of
"blocked assets," and thus the properties maintained their
immunity from attachment under the FSIA. See Id. Judge
Bryant of this Court, Judge Motz of the District of
Maryland, and the 5th Circuit Court of Appeals have all
reached the same conclusion. See Hegna, 376 F.3d at
495-96; Mousa, 00-cv-02096 at p. 8; Hegna, 287
F.Supp.2d 608 at 610-611.
Analysis
This Court's review of the relevant legal sources-when
considered in light of *167 the Office of Foreign
Mission's continued assertion of authority over Iran's
former diplomatic properties under the Foreign Missions
Act-leads to inescapable conclusion that the real
properties at issue are currently immune from attachment
under the laws of the United States, and therefore the
Government's motion to quash will be granted. With the
preceding legal discussion as the foundation for this
Court's decision, the Court will now briefly address the
key arguments raised by the parties during this litigation.
(I) The United States Has Standing to Move to Quash
the Writs of Attachment
The plaintiffs' argument that the United States lacks
standing in this action is without merit and essentially
frivolous. This Circuit has consistently recognized that the
United States has standing to bring actions necessary to
uphold its foreign policy obligations under international
agreements, particularly those relating to Iran. See e.g.,
Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233-34
(D.C.Cir.2003); Persinger v. Islamic Republic of Iran,
729 F.2d 835, 837 (D.C.Cir.1984). Indeed, this Court has
recognized on numerous occasions that the United States
has standing, pursuant to 28 U.S.C. § 517, to bring a
motion to quash writs of attachment issued against Iran
foreign mission properties and other protected assets. See
e.g., Weinstein v. Islamic Republic of Iran, 274 F.Supp.2d
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Bennett v. Islamic Republic of Iran, 604 F.Supp.2d 152 (2009)
53, 55 n. 1 (D.D.C.2003) (Lamberth, J.); Flatow, 76
F.Supp.2d at 18 n. 1. Moreover, longstanding Supreme
Court precedent establishes that the Attorney General has
standing to initiate civil litigation in order to uphold
United States foreign policy obligations under
international treaties. See Sanitary Dist. Of Chicago v.
United States, 266 U.S. 405, 425--426, 45 S.Ct. 176, 69
L.Ed. 352 (1925).
Whatever might be said of the decisions issued by the
Northern District of Illinois in Rubin, those rulings simply
do not apply here. See Rubin v. Islamic Republic of Iran,
408 F.Supp.2d 549 (N.D.111.2005), aff'd, 436 F.Supp.2d
938 (N.D.111.2006). In Rubin a magistrate judge
considered efforts by private parties, namely the
University of Chicago and others, to defeat writs of
attachment issued against Persian artifacts on loan to the
University from Iran. The University of Chicago claimed
that it had standing to challenge the writs on sovereign
immunity grounds or to otherwise serve as Iran's proxy in
the litigation. Thus, in Rubin the plaintiffs were literally
seeking to represent the interests of Iran.
In contrast to private interests asserted in Rubin, the
United States in this action seeks to uphold its own,
independent foreign policy obligations under the Vienna
Convention and the Foreign Mission Act. As explained
above, the Federal Government's duty to protect and
respect the diplomatic properties of other nations does not
depend on the current state of our relations with those
foreign powers. The level of hostility between the United
States and Iran simply makes no difference. Quite the
contrary, under Article 45 of the Vienna Convention, the
United States must meet its obligations to protect and
respect diplomatic properties, even when, as in this case,
diplomatic relations have been strained and, at times, are
openly hostile.
More fundamentally, plaintiffs' counsel fail to note that
the Magistrate Judge in the Rubin action discussed this
Court's ruling in Flatow and expressly acknowledged that
the United States Government does have standing,
consistent with its obligations under the Foreign Mission
Act, to challenge writs of attachment issued *168 against
Iran's diplomatic properties. See 408 F.Supp.2d at
558-59. By doing so, the magistrate judge distinguished
his case, which involved private third parties and
generalized Executive Branch concerns about foreign
policy under the FSIA, from the specific duty of the
Federal Government to protect and respect foreign
diplomatic properties. Accordingly, it is hard for this
Court to understand how the Rubin decision supports
plaintiffs at all. Moreover, this Court is concerned that
while counsel has vigorously urged this Court to adopt his
selective reading of case precedent from the Northern
District of Illinois, he has failed to discuss, let alone cite,
the controlling case precedent from this District Court and
the D.C. Circuit.
Finally, this Court observes that plaintiffs' counsel, much
like counsel in Roeder, consistently offers up
mischaracterizations of the nature of the interests the
United States seeks to assert in this action. See Roeder v.
Islamic Republic of Iran, 195 F.Supp.2d 140, 155
(D.D.C.2002). The United States, as emphasized
throughout this discussion, is not appearing in this action
in order to defend the Islamic Republic of Iran, as
counsel's rhetoric tends to suggest; rather the United
States seeks to uphold its obligations under multi-national
treaties in furtherance of broader foreign policies
objectives. In fact, the statement issued by the Clinton
White House in 1998, supra, p. 165-66, seems to
accurately summarize the foreign policy and national
security interests the United States has at stake in this
highly charged, politically sensitive context.
This Court recognizes that plaintiffs believe that the
United States is misguided in its conduct of foreign policy
in this instance. To all the victims in these actions, it must
certainly feel as if the United States has turned against
them in favor of state sponsors of terrorism. Nonetheless,
counsel's rhetoric is neither accurate nor fair, and it
certainly does not establish a basis on which this Court
can deny the United States standing in this action.
Plaintiffs have a right to express their frustration with
respect to United States foreign policy, but that frustration
should be directed to the foreign policy decision makers
within the Executive Branch, or in Congress, who have
the power to authorize the relief plaintiffs' desire.9
*169 (2) The Supplemental Materials Filed by
Plaintiffs Are Not Properly Before the Court and
therefore the Court will Strike those Documents from
the Record
Plaintiffs' supplemental filing, Dk.# 37, is untimely and
was filed without leave of the Court and therefore it will
be struck from the docket. See e.g., D.L. v. District of
Columbia, 450 F.Supp.2d 11, 20 (D.D.C.2006)
(Lamberth, J.). Additionally, the supplemental
memorandum and related materials are simply not
relevant to any matter of consequence in this action, and
thus this Court need not consider them. See Judicial
Watch, Inc. v. U.S. Dep't of Commerce, 224 F.R.D. 261,
263 (D.D.C.2004)(Lamberth, J.).
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Bennett v. Islamic Republic of Iran, 604 F.Supp.2d 152 (2009)
(3) For the reasons stated in Flatow, the Commercial
Activity Exception does not Apply in this Case.
In the decade since Flatow was decided, the factual
circumstances relating to the Iranian Embassy Properties
have not changed in a way that would require this Court
to revisit its prior ruling with respect to the commercial
activities exception of the FSIA, § 1610(a)(7). The
plaintiffs' arguments on this issue lack merit. As this
Court explained in Flatow, the availability of the
commercial activity exception turns on whether the
foreign state-in this case Iran-is using the properties at
issue for a commercial purpose Flatow, 76 F.Supp.2d at
23. Iran was using the properties at issue exclusively for
diplomatic purposes when the United States severed
diplomatic relations in 1979. To the extent that there has
been any commercial activity in connection with those
properties since then-such as the leasing of those
properties to private parties-that activity has been
carried out by the United States under the auspices of the
Foreign Mission Act. "Put simply, although the leasing of
property by a private party might be commercial in
nature, taking custody over diplomatic property under the
authority granted by a federal statute or treaty is decidedly
sovereign in nature." Id. at 23.
It makes no difference that the Iranian Foreign Mission
properties here in Washington are currently unoccupied
and apparently in poor condition. Under the Foreign
Mission Act-particularly §§ 4301(c) and 4305-the
Department of State is vested with exceedingly broad-if
not exclusive-discretion with respect to the preservation
of those properties. In exercising that discretion, the
Office of Foreign Missions undoubtedly must consider an
array of issues and competing priorities in light of limited
resources. This Court is not free to second guess that
Executive agency's decision making under these
circumstances.
Moreover, the Foreign Mission Act expressly provides
that properties held in protective custody by the
Department of *170 State are not subject to attachment or
execution. See § 4308(f). Thus, the manner in which the
Office of Foreign Missions has exercised its own
prerogative to maintain Iranian diplomatic properties
within its custody simply has nothing to do with the
ultimate question of whether those properties are entitled
to immunity from attachment. To be blunt, even if the
properties at issue have been so poorly maintained that
they are not currently capable of being occupied, as
plaintiffs suggest is the case, it simply does not follow
that, as consequence of that neglect, the United States has
somehow forfeited these properties to the
judgment-creditors of Iran.
(4) § I610(g) Does Not Strip Away Sovereign
Immunity Accorded to Iran's Diplomatic Properties
As noted above, plaintiffs are not entitled to rely on §
1610(g) because their FSIA judgment is under §
1605(a)(7), and they have not elected to proceed under
latest state sponsor of terrorism provision, § 1605A. More
fundamentally, however, this Court finds that even if the
plaintiffs could suddenly bring their action under §
1605A, it would not alter the outcome with respect to
their writs of attachment. As noted above, nothing in §
1610(g) indicates that Congress intended to strip away the
immunity long afforded to diplomatic properties. This
plain language interpretation of § 16 lO(g) is reinforced by
the legislative history relating to that enactment.
Moreover, in other enactments under the FSIA, such as
the TRIA and the VTVP A, Congress has clearly and
directly addressed the issue of whether and to what extent
diplomatic properties of terrorist states should be afforded
immunity from attachment and execution. Congress'
complete silence on the matter in this most recent
enactment indicates that they did not intend to pare back
the immunity that they have long afforded to diplomatic
properties.
Even if plaintiffs could offer up some contrived reading
of § 1610 to support their claim that Iranian diplomatic
properties are now subject to attachment, this Court
would have to resolve the statutory ambiguity on this
matter in favor of the Government in light of the clear
immunity accorded such properties under both the
Foreign Missions Act and the Vienna Convention. See
e.g., Trans World Airlines, Inc. v. Franklin Mint Corp.,
466 U.S. 243, 252, 104 S.Ct. 1776, 80 L.Ed.2d 273
(1984); Hegna, 287 F.Supp.2d at 610--611. Moreover, to
deny those diplomatic properties immunity in the absence
of express guidance from Congress would, in this Court's
view, constitute an unwarranted encroachment on the
President's authority to conduct foreign affairs.
In ruling that plaintiffs' writs of attachment must be
quashed, this Court is certainly mindful of the long and
difficult pursuit of justice that the Bennetts and so many
other victims of terrorism have had to endure. Under the
current state of the law, however, this Court has no choice
but to grant the Government's motion to quash. If, at
some later time, Congress or the President decide that the
sorts of diplomatic properties at issue in this case should
be subject to attachment, then this Court will of course
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Bennett v. Islamic Republic of Iran, 604 F.Supp.2d 152 (2009)
reconsider the matter.
A separate order consistent with this opinion shall issue
this date.
Footnotes
All Citations
604 F.Supp.2d 152
The five properties at issue are identified as 3003 Massachusetts Avenue, NW; 3005 Massachusetts Avenue, NW;
3410 Garfield Street, NW; Lot 8, Square 2145, NW; and Lot 0820, Square 2145, NW. See Dk.# s 26-31. These five
properties are described in some detail in the written declaration of Mr. Claude J. Nebel, dated July 11, 2008. See Dk.
# 34, Exh. 1. At the time of the declaration, Mr. Nebel was Deputy Assistant Secretary for Diplomatic Security and
Deputy Director of the Office of Foreign Missions for the State Department. The United States relies on Deputy
Assistant Secretary Nebel's declaration in support of its motion to quash the five writs of attachment. According to the
declaration: The property at 3003 Massachusetts Avenue, NW was the residence of Iran's Ambassador. The property
at 3500 Massachusetts Avenue, NW served as the Embassy Chancery. The property at 3410 Garfield Street, NW was
used as a diplomatic residence of the Embassy. The properties identified as Lot 8, Square 2145, NW and Lot 0820,
Square 2145, NW were both part of the Iranian Embassy compound and functioned primarily as parking lots for the
Iranian Embassy. Iran owns all the properties at issue and the majority of them were purchased by the Government of
Iran in 1959.
2 The decision in Flatow involved three of the properties at issue today-3003 Massachusetts Avenue, NW, 3005
Massachusetts Avenue, NW, and 3410 Garfield Street, NW-as well as one other Iranian property, 2954 Upton Street,
NW. See 76 F.Supp.2d at 19, n. 3. Just four years later, this Judge again quashed writs of attachment on those very
same properties and issued a short, unpublished opinion in the matter. See Elahi v. Islamic Republic of Iran,
99-cv-02802 (D.D.C.2003) (Lamberth, J.).
3 Counsel also included the following rhetoric: "The argument that pandering to a terrorist is in the best interest of the
United States falls on the sale of reason somewhere between illogical and insulting. We would all hope that there is no
close relationship between any American Administration and the world's leading supporter of terrorism." Dk. 24 at p.
10. Perhaps such rhetoric was intended to deter the United States from getting involved in this litigation. At any rate, it
seems unnecessary and, as will be emphasized below, completely mischaracterizes the nature of the interests the
United States has at stake in these matters.
4 Plaintiffs issued a subpoena to the State Department for this information, but the Department, by written letter, declined
to comply. See Dk. # 37. The Department noted, among other objections, that plaintiffs' subpoena is procedurally
defective, unduly burdensome, and that the information requested is irrelevant to this dispute. See Dk. # 37 & Exh. 4;
Dk. 40 at p. 3-4. For the reasons discussed below, this Court finds that the information plaintiffs requested from the
Department of State is irrelevant to the issue of whether this Court must quash the writs of attachment.
5 In summarizing the relevance of the construction worker's testimony, counsel states as follows:
The testimony demonstrates that the buildings located on the properties at 3003 Massachusetts Avenue, 30005
Massachusetts Avenue and 3410 Garfield Street are not in use at all and therefore have value only as investment
property. The other pieces, never legally joined to the real property on which the three buildings at those addresses
above were located, were vacant lots and never had any known use and therefore could not be diplomatic property
in accordance with Article 22 of the Vienna Convention on Diplomatic Relations. The properties are not exempt from
attachment upon the judgment entered against Defendant, Iran.
Dk. # 37 at p. 4.
6 For this portion of the opinion, the Court relies in large part on the declaration provided to the Court by Claude J. Nebel
while he was serving Deputy Assistant Secretary of State for Diplomatic Security and Chief of the Office of Foreign
Missions. That declaration as noted above, supra, n. 1, has been offered by the United States as an exhibit in support
of its motion to quash the writs of attachment, and is included as Exhibit 1 to the Government's brief in support of the
motion to quash. See Dk. # 34, Exh. 1. The Court also relies on certain documents furnished in connection with Deputy
Assistant Secretary Nebel's declaration and included as separate exhibits to his declaration. These documents include
compilations of statements and directives of President Carter in connection with the termination of diplomatic relations
with Iran. The exhibits also include copies and secondary source compilations of diplomatic notes and other
Department of State correspondence relating to the severance of diplomatic relations with Iran and the status of Iran's
Foreign Mission Properties in the United States. These miscellaneous source materials are included in the record as
exhibits with Deputy Assistant Secretary Nebel's declaration The plaintiffs have not challenged Deputy Assistant
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Bennett v. Islamic Republic of Iran, 604 F.Supp.2d 152 (2009)
Secretary Nebel's declaration or any of the documentary exhibits included therewith. Moreover, the declaration
underscores points that the plaintiffs apparently believe are relevant to this dispute, namely, that the buildings on the
properties at issue are not occupied and are in need of repair. See id. at p. 6-8. For purposes of this opinion, the Court
will assume the truth of plaintiffs' assertion that the buildings on Iran's properties are "not adequately cared for, are not
rented, and are in need of rehabilitation." Dk.# 35 at p. 7.
7 Algeria served initially as Iran's Protecting Power for Iranian interests in the United States. Pakistan now serves that
role.
8 The Diplomatic Note is included with the materials attached as exhibits to Deputy Secretary Nebel's Declaration. See
Dk. # 34, Exh. 1 to Exh. 1.
9 Plaintiffs claim that the Office of Foreign Missions is laboring under a misunderstanding of the United States'
obligations under the Vienna Convention. In support of this claim, plaintiffs note that whereas Article 22 states that
diplomatic properties are immune from attachment and execution, Article 45 is silent on the matter. Plaintiffs therefore
argue that under Article 45 of the Vienna Convention, foreign mission properties are subject to attachment and
execution whenever diplomatic relations are severed. Plaintiffs' interpretation of Article 45 is untenable. As an initial
matter, nothing in Article 45 indicates that it is intended to abrogate or otherwise supplant the Receiving States's duties
to protect and respect foreign mission property as described in Article 22. Indeed, Article 45 by its plain terms serves to
clarify and reinforce that the Receiving State must respect and protect the property of a foreign mission even after
relations with that foreign power turn cold or hostile. In addition to underscoring the inviolable nature of the Receiving
State's responsibility to protect and respect a foreign nation's mission properties, Article 45 serves to offer the
Receiving State a number of practical approaches that the Receiving States may use to fulfil those obligations after
diplomatic relations have been severed. For example, the Receiving state may entrust the premises of the mission to a
third state. See Article 45(b). Thus, rather than supplant Article 22, as plaintiffs suggests, Article 45 merely
supplements that provision with some practical approaches that the Receiving State may, within its discretion, utilize to
fulfil its Article 22 obligations. More fundamentally, however, what plaintiffs have articulated in this case is best
characterized as an expression of disagreement and frustration with United States foreign policy as it relates to the
diplomatic properties of state sponsors of terrorism. As explained in this portion of the opinion, however, those
disagreements and frustrations are best directed to the policy makers within two political branches of the federal
government. Much like this Court cannot deny the United States standing to defend its foreign policy positions in
connection with multilateral treaties, this Court also lacks the authority to pass judgment on the merits of those foreign
policy determinations. See e.g., Holmes v. Laird, 459 F.2d 1211, 1215 (D.C.Cir.1972) (stressing that questions
concerning the extent of United States treaty obligations toward other foreign governments are largely nonjusticiable
political questions) Kucinich v. Bush, 236 F.Supp.2d 1, 16 (D.D.C.2002) (stressing issues concerning the interpretation
of treaties and other agreements between sovereign powers "are largely political questions best left to the political
branches of the government, not the courts, for resolution.")
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ANNEX 311

Case 3:11-cv-05807-CRB Document 210 Filed 04/24/20 Page 1 of 3
1
2
3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
4
5 MICHAEL BENNETT, et al.,
6
7
8
Plaintiffs,
V.
ISLAMIC REPUBLIC OF IRAN, et al.,
)
)
)
)
)
)
)
)
9 )
Defendants. )
10 , _______________ )
11
12
13
14
15
VISA INC. and FRANKLIN RESOURCES, INC.,
V.
16 BANK MELLI,
17
18 and
Third-Party Plaintiffs,
Third-Party Defendants,
19 ESTATE OF MEIR KAHANE, et al.,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
20 )
Third-Party Defendants and )
21 Counter-Claimants. )
22 , _______________ )
23
24
25
26
27
28
No. 11-CV-5807-CRB-RMI
[PROPOSED] ORDER
GRANTING MOTION TO
LIFT STAY AND FOR
WITHDRAWAL
Annex 311
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Case 3:11-cv-05807-CRB Document 210 Filed 04/24/20 Page 2 of 3
Before the Court is a motion to lift stay and for withdrawal filed by Plaintiffs Michael
Bennett, et al., Third-Party Defendants and Counter-Claimants Carlos Acosta, et al., Third-Party
Defendants and Counter-Claimants Steven Greenbaum, et al., Third-Party Defendants and
Counter-Claimants The Estate of Michael Heiser, et al., Third-Party Plaintiff Visa Inc., and ThirdParty
Plaintiff Franklin Resources, Inc. Upon consideration of the motion, it is hereby:
ORDERED that the motion is GRANTED.
IT IS FURTHER ORDERED that the stays entered on December 3, 2018 (Dkt. No. 192),
and December 19, 2018 (Dkt. No. 196), are LIFTED.
IT IS FURTHER ORDERED that Baker & McKenzie LLP, counsel for Visa Inc. and
Franklin Resources, Inc., are hereby authorized to withdraw $324,130.60 from the Court's
Registry, to be paid from the $17,648,962.76 wired to the Court's Registry on or about May 8,
2012 (Dkt. No. 89).
IT IS FURTHER ORDERED that Baker & McKenzie LLP shall post notice on the docket
in this action within three business days after it receives the $324,130.60 from the Court's Registry
referenced above.
IT IS FURTHER ORDERED that Stroock & Stroock & Lavan LLP, counsel for Carlos
Acosta, et al., and Steven Greenbaum, et al., are hereby authorized on behalf of Carlos Acosta, et
al., Steven Greenbaum, et al., Michael Bennett, et al., and The Estate of Michael Heiser, et al., to
withdraw the balance of the $17,648,962.76 wired to the Court's Registry on or about May 8, 2012
(Dkt. No. 89), including interest and return on investment, after Baker & McKenzie LLP posts the
notice referenced above.
IT IS FURTHER ORDERED that, within three business days after Stroock & Stroock &
Lavan LLP receives the balance of the $17,648,962.76 referenced in the immediately preceding
paragraph, Stroock & Stroock & Lavan LLP shall transfer portions of those funds to Bond &
Annex 311
1
2
3
Case 3:11-cv-05807-CRB Document 210 Filed 04/24/20 Page 3 of 3
Norman Law, PC, counsel for Michael Bennett, et al., and DLA Piper LLP (US), counsel for The
Estate of Michael Heiser, et al., as set forth in the Litigation Cooperation and Settlement
Agreement, entered into by the Acostas, the Greenbaums, the Bennetts, and the Heisers as of May
4 1, 2012.
5 DATED: April 24, 2020
6
United States District Judge
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Annex 311

ANNEX312

Case 1:03-cv-01486-RCL Document 51-1 Filed 01/24/11 Page 1 of 2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL BENNETT
LINDA BENNETT
Individually And As Co-Administrators Of
The Estate Of Estate of MARLA ANN BENNETT
Plaintiffs
v. CA No.1:03 CV-01-1486RCL
Judge Royce C. Lamberth
THE ISLAMIC REPUBLIC OF IRAN, et al.
Defendants
SUPPLEMENTAL AFFIDAVIT OF
SERVICE OF PROCESS OF
JUDGMENT PURSUANT TO 28 U.S.C.§1608(c)
I, Thomas Fortune Fay, 777 Sixth Street, NW, Suite 410, Washington, DC 20001,
pursuant to Local Rule 5.l(h) declare under penalty of perjury as follows:
(1) That I am an adult 70 years of age, with a date of birth on April 16, 1940.
(2) That I am counsel of record for the Plaintiff in the above titled action.
(3) That on the 19th day of November, 2007, I caused to be mailed to the
Defendant, the Islamic Republic Of Iran, Ministry Of Foreign Affairs, Manouchehr
Mottaki, Foreign Minister, Khomenei Avenue, United Nations Street, Tehran, Iran, a
copy of the judgment entered in this action on August 30, 2007, in English and translated
into Farsi.
(4)That I receiver the attached confirmation of service of the above document
bearing the signed name in Farsi of the addressee, Manouchehr Mottaki, Minister of
Foreign Affairs of the Islamic Republic of Iran from August 24, 2005 to December 13,
2010, from DHL Worldwide Mail Service, bearing a date of November 26, 2007.
January 24, 2011
Annex 312
II
Case 1:03-cv-01486-RCL Document 51-1 Filed 01/24/11 Page 2 of 2
DESTINATION :
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Attn.: Mr Rahnama
Ministry of Foreign Affairs
Manouchehr Mottaki
Annex 312
.. I
I
ANNEX313

,I
Case 3:11-cv-05807-CRB Document 1 Filed 12/02/11 Page 2 of 11
JANE CAROL NORMAN, ESQ.
California Bar No. 66998
Bond & Norman, PLLC
777 Sixth Street, NW
Suite 410
Washington, DC 20001
202/423-3863
Fax 202/207-1041
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
MICHAEL BENNETT
LINDA BENNETT
Individually and as Co-Administrators of
)
)
)
)
E-filing
the Estate of MARLA ANN BENNETT, deceased
lo THOMAS FORTUNE FAY, ESQ.
01 Pennsylvania Ave., NW
uite 900 - South Building ~v111 )
ashington, DC 20004
Plaintiffs,
THE ISLAMIC REPUBLIC OF IRAN
Ministry of Foreign Affairs
Khomeini A venue
United Nations Street
Tehran, Iran,
and
THE IRANIAN MINISTRY OF INFORMATION
AND SECURITY
Pasdaran A venue
Golestan Y ekom
Tehran, Iran,
and
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Annex 313
' /
Case 3:11-cv-05807-CRB Document 1 Filed 12/02/11 Page 3 of 11
FRANKLIN RESOURCES INC )
dba FRANKLIN TEMPLETON FIDUCIARY TRUST )
Serve:CT Corporation Services
818 W. 7th Street
Suite 200
Los Angeles, CA 9001 7
and
VISA INC
dba VISA INTERNATIONAL
SERVICE ASSOCIATION
Serve:CT Corporation Services
818 W. 7th Street
Suite 200
Los Angeles, CA 9001 7
Defendants.
COMPLAINT
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2
(1 )This Court has jurisdiction over the subject matter ofthis action pursuant to 28 U .S.C.
§ 1605A(g)(3) and 28 U.S.C. § 1331. This is an action in rem in accordance with the provisions of
28 U.S.C. §1655. The Defendants, The Islamic Republic oflran and The Iranian Ministry of
Information and Security, are subject to suit in the courts of the United States pursuant to the
Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A, and 28 U.S.C. § 1605(a)(7), as in effect
before the enactment of 28 U.S.C. §1605A. Venue lies in this Court pursuant to 28 U.S.C.
§1391(f)(3). This is an action in rem for enforcement of a lien as provided by 28 U.S.C.
§1605A(g)(3) and 28 U.S.C. §1655.
(2)The Defendant, Franklin Resources Inc., dba Franklin Templeton Fiduciary Trust,
(Franklin) is a corporation organized under the laws of the State of Delaware, and was, at all
times relevant to this action, doing business in the State of California, as to the property which is
the subject of this in rem proceeding. In the course of that business it accepted investments
designated as the property of Defendant, Visa, Inc., whose beneficial owner was in fact the
2
Annex 313
Case 3:11-cv-05807-CRB Document 1 Filed 12/02/11 Page 4 of 11
Defendant, The Islamic Republic Of Iran, at all times relevant to this action. The Defendant,
Visa, Inc., dba Visa International Service Association, (Visa) is a corporation organized under
the laws of the State of State of Delaware, and was, at all times relevant to this action, doing
business in the State of California, as to the property which is the subject of this in rem
proceeding.
3
(3)Plaintiffs Michael Bennett and Linda Bennett, domiciliaries of the State of California,
are the parents of decedent, Marla Ann Bennett, who died from injuries sustained during a
terrorist attack in Jerusalem on July 31 , 2002. Plaintiffs Michael Bennett and Linda Bennett are
the Co-Administrators of the Estate of Marla Ann Bennett and in that capacity represent their
daughter's other beneficiary pursuant to federal and California state law, Lisa Bennett, decedent's
sister. On August 30, 2007,judgment was entered for Plaintiffs, and against Defendants, The
Islamic Republic of Iran and The Iranian Ministry oflnformation and Security, in the amount of
$12,904,548.00, of which $404,548.00, was allocated to the estate of Marla Bennett for wrongful
death, $5,000,000.00 was allocated to Linda Bennett, $5,000,000.00 was allocated to Michael
Bennett, and $2.5 million was allocated to Lisa Bennett. As of the date of this Complaint the
entire amount of that judgment remains unsatisfied. On January 25, 2011, the United States
District Court For The District Of Columbia, entered an Order pursuant to 28 U.S.C. 1610(c),
permitting Plaintiffs leave to proceed with attachment or execution.
(4)Defendant, The Islamic Republic oflran, is a foreign state and was on July 31 , 2002,
and is to the present, a state sponsor of terrorism designated as such pursuant to section 6(i) of
the Export Administration Act of 1979 (50 U.S.C. App. §2405(i)). Defendant, The Iranian
Ministry oflnformation and Security, is the Iranian intelligence service through which Iran
sponsored the terrorist group that caused the act of extra judicial killings described below.
3
Annex 313
Case 3:11-cv-05807-CRB Document 1 Filed 12/02/11 Page 5 of 11
(5)Decedent Marla Ann Bennett, a United States national, was a 24-year-old graduate of
University of California at Berkeley who planned to be teacher. She was a graduate student
working on her master's degree in Judaic studies at the Pardes Institute of Jewish Studies in
Berkeley and a participant in its Melton Center for Jewish Education program at Hebrew
University in Jerusalem at the time of her death. On Wednesday, July 31, 2002, the decedent
was having lunch with two of her friends, Harris-Gershon and Benjamin Blutstein1, in the
cafeteria of the Hebrew University in Jerusalem. The decedent prepared for a final exam later
that afternoon, her last requirements for the summer session. She intended to fly back home to
San Diego with her boyfriend Michael Simon two days later.
4
(6)At 1 :40 p.m. local time, a nail-studded bomb went off in the crowded cafeteria. The
explosion killed the decedent and six other people and wounded over eighty other individuals,
mostly students. The bomb was placed by a Hamas agent in a bag left in the cafeteria and
activated from a cell phone. These actions were found by Chief Judge Lamberth United States
District Court For The District Of Columbia to have been undertaken by an agent of Hamas with
the material support of the Defendant, The Islamic Republic Of Iran.
(7)Pursuant to 50 USCS § 1 702, the President may:
"(A) investigate, regulate, or prohibit--
(i) any transactions in foreign exchange,
(ii) transfers of credit or payments between, by, through, or to any banking
institution, to the extent that such transfers or payments involve any interest of any
foreign country or a national thereof,
(iii) the importing or exporting of currency or securities,
by any person, or with respect to any property, subject to the jurisdiction of the United
States .... " See Exhibit A attached.
1 Benjamin Blustein suffered fatal injuries in the attack described in this Complaint.
4
Annex 313
Case 3:11-cv-05807-CRB Document 1 Filed 12/02/11 Page 6 of 11
On November April 9, 1980, under the authority of 50 U.S.C. 1701-1706, at FR 24432, the
President by regulation exercised his authority as follows (EXHIBIT 8):
"Sec. 535.201 Transactions involving property in which Iran or Iranian entities have
an interest. No property subject to the jurisdiction of the United States or
which is in the possession of or control of persons subject to the
jurisdiction of the United States in which on or after the effective
date Iran has any interest of any nature whatsoever may be transferred,
paid, exported, withdrawn or otherwise dealt in except as authorized."
The Office Of Foreign Assets Control of the United States Department Of The Treasury has
confirmed that none of the Defendants has ever has a license to deal in investments for The
Islamic Republic Of Iran.
(8)On November 2, 2011, Plaintiffs, through counsel, caused a Notice Of Lis Pendens
to be served upon the Defendant Franklin in accordance with the provisions of28 U.S.C.
§1605A(g)(l), establishing a lien upon the tangible personal property of the Defendant, The
Islamic Republic Of Iran, consisting of securities held for investment by Defendant Franklin
upon an account bearing the name of the Defendant Visa. The lien is enforced as provided in
Chapter 111 of Title 28 of the United States Code (28 U.S.C. §1655).
5
(9)Service upon foreign states is governed by the provisions of 28 U.S.C. §1608(a),
which provides in pertinent part for alternative means of service: (1) through any special
arrangement with the Defendant; (2) through use of any applicable international convention;
(3)by any form of mail requiring a return receipt; or, if service cannot be completed by any of the
foregoing means, through diplomatic channels. In addition 28 U.S.C. §1608(d) provides that the
foreign state shall serve "an answer or other responsive pleading within sixty days after service
has been made."
5
Annex 313
Case 3:11-cv-05807-CRB Document 1 Filed 12/02/11 Page 7 of 11
6
Wherefore, the premises considered, Plaintiffs request:
(1 )That the Court enter an Order directed to the Clerk of this Court that a summons be
issued directed to the Defendant, The Islamic Republic Of Iran, requiring that an answer or other
responsive pleading be filed within sixty days;
(2) That the Court enter an Order directed to the Clerk of this Court that a summonses
be issued directed to the Defendants, Franklin Resources Inc., dba Franklin Templeton Fiduciary
Trust and, and Visa, Inc., dba Visa International Service Association requiring each Defendant
to filet an answer or other responsive pleading within thirty days;
(3)That upon hearing the Court Order turnover of assets of the Defendant, The Islamic
Republic Of Iran, in an amount sufficient to satisfy the judgment, with interest at the rate
applicable by law and the costs of this proceeding as determined by the Court.
6
Annex 313
Case 3:11-cv-05807-CRB Document 1 Filed 12/02/11 Page 8 of 11
Date: December 2, 2011
NE CAROL NORMAN, ESQ.
alifornia Bar No. 66998
Bond & Norman, PLLC
777 Sixth Street, NW
Suite 410
Washington, DC 20001
202/423-3863
Fax 202/207-1041
JNormas425@aoLcom
Thomas Fortune Fay
D.C. Bar Id. 23929
THOMAS FORTUNE F AV, P.A.
601 Pennsylvania Ave., N.W.
Suite 900
Washington, DC 20004
(202) 638-4534
Attorney for Plaintiffs
ThomasFay@aoLcom
7
7
Annex 313
Case 3:11-cv-05807-CRB Document 1 Filed 12/02/11 Page 9 of 11
EXHIBIT A
so uses § 1102
§ 1702. Presidential authorities
(a) In general.
(1) At the times and to the extent specified in section 202 [50 USCS ~ I 70 I], the President
may, under such regulations as he may prescribe, by means of instructions, licenses, or
otherwise--
( A) investigate, regulate, or prohibit--
(i) any transactions in foreign exchange,
(ii) transfers of credit or payments between, by, through, or to any banking institution, to
the extent that such transfers or payments involve any interest of any foreign country or a
national thereof,
(iii) the importing or exporting of currency or securities,
8
by any person, or with respect to any property, subject to the jurisdiction of the United States;
(B) investigate, block during the pendency of an investigation, regulate, direct and compel,
nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal,
transportation, importation or exportation ot: or dealing in, or exercising any right, power, or
privilege with respect to, or transactions involving, any property in which any foreign country or
a national thereof has any interest by any person, or with respect to any property, subject to the
jurisdiction of the United States; and
(C) when the United States is engaged in armed hostilities or has been attacked by a foreign
country or foreign nationals, confiscate any property, subject to the jurisdiction of the United
States, of any foreign person, foreign organization, or foreign country that he determines has
planned, authorized, aided, or engaged in such hostilities or attacks against the United States; and
all right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms
directed by the President, in such agency or person as the President may designate from time to
time, and upon such terms and conditions as the President may prescribe, such interest or
property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest
of and for the benefit of the United States, and such designated agency or person may perform
any and all acts incident to the accomplishment or furtherance of these purposes.
(2) In exercising the authorities granted by paragraph (1 ), the President may require any person
to keep a full record of, and to furnish under oath, in the form of reports or otherwise, complete
information relative to any act or transaction referred to in paragraph ( 1) either before, during, or
after the completion thereof, or relative to any interest in foreign prope.rty, or relative to any
property in which any foreign country or any national thereof has or has had any interest, or as
may be otherwise necessary to enforce the provisions of such paragraph. In any case in which a
report by a person could be required under this paragraph, the President may require the
production of any books of account, records, contracts, letters, memoranda, or other papers, in
the custody or control of such person.
(3) Compliance with any regulation, instruction, or direction issued under this title [jO USC'S
8
Annex 313
' '
Case 3:11-cv-05807-CRB Document 1 Filed 12/02/11 Page 10 of 11
§§ 1701 et seq.] shall to the extent thereof be a full acquittance and discharge for all purposes of
the obligation of the person making the same. No person shall be held liable in any court for or
with respect to anything done or omitted in good faith in connection with the administration of,
or pursuant to and in reliance on, this title, or any regulation, instruction, or direction issued
under this title.
(b) Exceptions to grant of authority. The authority granted to the President by this section does
not include the authority to regulate or prohibit, directly or indirectly--
( 1) any postal, telegraphic, telephonic, or other personal communication, which does not
involve a transfer of anything of value;
9
(2) donations, by persons subject to the jurisdiction of the United States, of articles, such as
food, cJothing, and medicine, intended to be used to relieve human suffering, except to the extent
that the President determines that such donations (A) would seriously impair his ability to deal
with any national emergency declared under section 202 of this titie [50 USCS § 1701 ], (B) are
in response to coercion against the proposed recipient or donor, or (C) would endanger Anned
Forces of the United States which are engaged in hostilities or are in a situation where imminent
involvement in hostilities is clearly indicated by the circumstances; (or]
. (3) the importation from any country, or the exportation to any country, whether commercial or
otherwise, regardless of format or medium of transmission, of any information or informational
materials, including but not limited to, publications, films, posters, phonograph records,
photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire
feeds. The exports exempted from regulation or prohibition by this paragraph do not include
those which are otherwise controlled for export under section 5 of the Export Administration Act
of 1979 (50 USC._ Appx. ~ 2404], or under section 6 of such Act [50 USC'S Appx. § 2405] to the
extent that such controls promote the nonproliferation or antiterrorism policies of the United
States, or with respect to which acts are prohibited by chapter 37 of title 18, United States Code
[18 uses ~~ 791 et seq.]; or
(4) any transactions ordinarily incident to travel to or from any country, including importation
of accompanied baggage for personal use, maintenance within any country including payment of
living expenses and acquisition of goods or services for personal use, and arrangement or
facilitation of such travel including nonscheduled air, sea, or land voyages.
(c) Classified information. In any judicial review of a determination made under this section, if
the determination was based on classified information (as defined in section l(a) of the Classified
Information Procedures Act [ 18 USCS /\ppx ~ l {a)]) such information may be submitted to the
reviewing court ex parte and in camera. This subsection does not confer or imply any right to
judicial review.
+History:
(Dec. 28, 1977, P.l .. 95-223 , Title II, § 203, 0 I Stat. 162(); Aug. 23, 1988, P.L. l 00-418, Title
II, Subtitle E, § 2502(b)(l ), I 02 Slat. 137 l ; April 30, 1994, P. I .. 103 -236, Title V, Part A,§
525(c)(l), 108SLat.474; Oct.26, 2001 ,P.L. l07-56, Titlel, § 106, 115 Stat.277.)
9
Annex 313
Case 3:11-cv-05807-CRB Document 1 Filed 12/02/11 Page 11 of 11
' .
[Code of Federal Regulations]
[Title 31, Volume 2, Parts 200 to end]
[Revised as of July 1, 1997]
EXHIBITB
From the U.S. Government Printing Office via GPO Access
[CITE: 31CFR535]
[Page 513-547]
TITLE 31--MONEY AND FINANCE: TREASURY
CHAPTER V--OFFICE OF FOREIGN ASSETS CONTROL, DEPARTMENT OF THE
TREASURY
PART 535--IRANIAN ASSETS CONTROL REGULATIONS
Subpart B--Prohibitions
Sec. 535.201 Transactions involving property in which Iran or Iranian
entities have an interest.
No property subject to the jurisdiction of the United States or
which is in the possession of or control of persons subject to the
jurisdiction of the United States in which on or after the effective
date Iran has any interest of any nature whatsoever may be transferred,
paid, exported, withdrawn or otherwise dealt in except as authorized.
[45 FR 24432, Apr. 9, 1980]
IO
Annex 313
ANNEX314

Acrnrnnom~
lNFORMATION
o,o
62520 Federal Register/Vol. 72, No. 213 /Monday, November 5, 2007 /Notices
391.41(b)(10). His ophthalmologist
examined him in 2007 and certified that
he has stable nonproliferative diabetic
retinopathy. He holds a Class A CDL
from New York.
James G. Wilkerson
Mr. Wilkerson, 40, has had ITDM
since 2004. His endocrinologist
examined him in 2007 and certified that
he has had no hypoglycemic reactions
resulting in loss of consciousness,
requiring the assistance of another
person, or resulting in impaired
cognitive function that occurred without
warning in the past 5 years; understands
diabetes management and monitoring;
and has stable control of his diabetes
using insulin, and is able to drive a
CMV safely. Mr. Wilkerson meets the
requirements of the vision standard at
49 CFR 391.41(b)(10). His
ophthalmologist examined him in 2007
and certified that he does not have
diabetic retinopathy. He holds a Class A
CDL from Pennsylvania.
Randy L. Wyant
Mr. Wyant, 47, has had ITDM since
1969. His endocrinologist examined him
in 2007 and certified that he has had no
hypoglycemic reactions resulting in loss
of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 5 years; understands diabetes
management and monitoring; and has
stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Wyant meets the
requirements of the vision standard at
49 CFR 391.41(b)(10). His
ophthalmologist examined him in 2007
and certified that he has stable
proliferative and nonproliferative
diabetic retinopathy. He holds a Class A
CDL from Ohio.
Request for Comments
In accordance with 49 U.S.C. 31136(e)
and 31315, FMCSA requests public
comment from all interested persons on
the exemption petitions described in
this notice. We will consider all
comments received before the close of
business on the closing date indicated
earlier in the dates section of the Notice.
FMCSA notes that Section 4129 of the
Safe, Accountable, Flexible and
Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU)
requires the Secretary to revise its
diabetes exemption program established
on September 3, 2003 (68 FR 52441).1
1 Section 4129(a) refers to the 2003 Notice as a
"final rule." However, the 2003 Notice did not issue
a "final rule" but did establish the procedures and
The revision must provide for
individual assessment of drivers with
diabetes mellitus, and be consistent
with the criteria described in section
4018 of the Transportation Equity Act
for the 21st Century (49 U.S.C. 31305).
Section 4129 requires: (1) The
elimination of the requirement for three
years of experience operating CMVs
while being treated with insulin; and (2)
the establishment of a specified
minimum period of insulin use to
demonstrate stable control of diabetes
before being allowed to operate a CMV.
In response to section 4129, FMCSA
made immediate revisions to the
diabetes exemption program established
by the September 3, 2003 Notice.
FMCSA discontinued use of the 3-year
driving experience and fulfilled the
requirements of section 4129 while
continuing to ensure that operation of
CMVs by drivers with ITDM will
achieve the requisite level of safety
required of all exemptions granted
under 49 U.S.C. 31136(e).
Section 4129(d) also directed FMCSA
to ensure that drivers of CMVs with
ITDM are not held to a higher standard
than other drivers, with the exception of
limited operating, monitoring and
medical requirements that are deemed
medically necessary. FMCSA concluded
that all of the operating, monitoring and
medical requirements set out in the
September 3, 2003 Notice, except as
modified, were in compliance with
section 4129(d). Therefore, all of the
requirements set out in the September 3,
2003 Notice, except as modified by the
Notice in the Federal Register on
November 8, 2005 (70 FR 67777),
remain in effect.
Dated: October 26, 2007.
Larry W. Minor,
Associate Administrator for Policy and
Program Development.
[FR Doc. E7-21640 Filed 11-2-07; 8:45 am]
BILLING CODE 4910-EX-P
DEPARTMENT OF THE TREASURY
Office of Foreign Assets Control
Additional Designation of Entities
Pursuant to Executive Order 13382
AGENCY: Office of Foreign Assets
Control, Treasury.
ACTION: Notice.
SUMMARY: The Treasury Department's
Office of Foreign Assets Control
("OF AC") is publishing the names of 17
newly-designated entities and eight
standards for issuing exemptions for drivers with
ITDM.
newly-designated individuals whose
property and interests in property are
blocked pursuant to Executive Order
13382 of June 28, 2005, "Blocking
Property of Weapons of Mass
Destruction Proliferators and Their
Supporters."
DATES: The designation by the Director
ofOFAC of the 17 entities and eight
individuals identified in this notice
pursuant to Executive Order 13382 is
effective on October 25, 2007.
FOR FURTHER INFORMATION CONTACT:
Assistant Director, Compliance
Outreach & Implementation, Office of
Foreign Assets Control, Department of
the Treasury, Washington, DC 20220,
tel.: 202/622-2490.
SUPPLEMENTARY INFORMATION:
Electronic and Facsimile Availability
This document and additional
information concerning OF AC are
available from OFAC's Web site
(http://www.treas.gov/ofac) or via
facsimile through a 24-hour fax-on
demand service, tel.: (202) 622-0077.
Background
On June 28, 2005, the President,
invoking the authority, inter alia, of the
International Emergency Economic
Powers Act (50 U.S.C. 1701-1706)
("IEEP A"), issued Executive Order
13382 (70 FR 38567, July 1, 2005) (the
"Order"), effective at 12:01 a.m. eastern
daylight time on June 29, 2005. In the
Order, the President took additional
steps with respect to the national
emergency described and declared in
Executive Order 12938 of November 14,
1994, regarding the proliferation of
weapons of mass destruction and the
means of delivering them.
Section 1 of the Order blocks, with
certain exceptions, all property and
interests in property that are in the
United States, or that hereafter come
within the United States or that are or
hereafter come within the possession or
control of United States persons, of: (1)
The persons listed in an Annex to the
Order; (2) any foreign person
determined by the Secretary of State, in
consultation with the Secretary of the
Treasury, the Attorney General, and
other relevant agencies, to have
engaged, or attempted to engage, in
activities or transactions that have
materially contributed to, or pose a risk
of materially contributing to, the
proliferation of weapons of mass
destruction or their means of delivery
(including missiles capable of delivering
such weapons), including any efforts to
manufacture, acquire, possess, develop,
transport, transfer or use such items, by
any person or foreign country of
Annex 314
Federal Register/Vol. 72, No. 213 /Monday, November 5, 2007 /Notices 62521
proliferation concern; (3) any person
determined by the Secretary of the
Treasury, in consultation with the
Secretary of State, the Attorney General,
and other relevant agencies, to have
provided, or attempted to provide,
financial, material, technological or
other support for, or goods or services
in support of, any activity or transaction
described in clause (2) above or any
person whose property and interests in
property are blocked pursuant to the
Order; and (4) any person determined
by the Secretary of the Treasury, in
consultation with the Secretary of State,
the Attorney General, and other relevant
agencies, to be owned or controlled by,
or acting or purporting to act for or on
behalf of, directly or indirectly, any
person whose property and interests in
property are blocked pursuant to the
Order.
On October 25, 2007, the Director of
OF AC, in consultation with the
Departments of State, Justice, and other
relevant agencies, designated 17 entities
and eight individuals whose property
and interests in property are blocked
pursuant to Executive Order 13382.
The list of additional designees
follows:
Entities:
1. BANK MELLI, Ferdowsi Avenue,
P.O. Box 11365-171, Tehran, Iran; all
offices worldwide [NPWMD]
2. BANK KARGOSHAEE (a.k.a.
Kargosa'i Bank), 587 Mohammadiye
Square, Mowlavi St., Tehran 11986, Iran
[NPWMD]
3. BANK MELLI IRAN ZAO, Number
9/1, Ulitsa Mashkova, Moscow 103064,
Russia [NPWMD]
4. MELLI BANK PLC, 1 London Wall,
London EC2Y 5EA, United Kingdom
[NPWMD]
5. ARIAN BANK (a.k.a. Aryan Bank),
House 2, Street Number 13, Wazir Akbar
Khan, Kabul, Afghanistan [NPWMD]
6. BANK MELLAT, 327 Taleghani
Avenue, Tehran 15817, Iran; P.O. Box
11365-5964, Tehran 15817, Iran; all
offices worldwide [NPWMD]
7. MELLAT BANK SB CJSC (a.k.a.
Mellat Bank DB AOZT), P.O. Box 24,
Yerevan 0010, Armenia [NPWMD]
8. PERSIA INTERNATIONAL BANK
PLC, #6 Lothbury, London EC2R 7HH,
United Kingdom [NPWMD]
9. KHATAM OL ANBIA
GHARARGAHSAZANDEGINOOH
(a.k.a. GHORB KHATAM; a.k.a.
KHAT AM AL-ANBYA; a.k.a. KHAT AM
OL AMBIA), No. 221, Phase 4, North
Falamak-Zarafshan Intersection,
Shahrak-E-Ghods, Tehran 14678, Iran
[NPWMD]
10. ORIENTAL OIL KISH, Second
Floor, 96/98 East Atefi St., Africa Blvd.,
Tehran, Iran; Dubai, United Arab
Emirates [NPWMD]
11. GHORB KARBALA (a.k.a
Gharargah Karbala; a.k.a. Gharargah
Sazandegi Karbala-Moasseseh Taha),
No. 2 Firouzeh Alley, Shahid Hadjipour
St., Resalat Highway, Tehran, Iran
[NPWMD]
12. SEPASAD ENGINEERING
COMPANY, No. 4 Corner of Shad St.,
Mollasadra Ave., Vanak Square, Tehran,
Iran [NPWMD]
13. GHORB NOOH, P.O. Box 16765-
3476, Tehran, Iran [NPWMD]
14. OMRAN SAHEL, Tehran, Iran
[NPWMD]
15. SAHEL CONSULTANT
ENGINEERS, P.O. Box 16765-34,
Tehran, Iran; No. 57, Eftekhar St.,
Larestan St., Motahhari Ave., Tehran,
Iran [NPWMD]
16. HARA COMP ANY (a.k.a HARA
INSTITUTE), Tehran, Iran [NPWMD]
17. GHARARGAHE SAZANDEGI
GHAEM (a.k.a. GHARARGAH GHAEM),
No. 25, Valiasr St., Azadi Sq., Tehran,
Iran [NPWMD]
Individuals:
1. BAHMANYAR, Bahmanyar
Morteza; DOB 31 Dec 1952; POB
Tehran, Iran; Passport 10005159 (Iran);
alt Passport 10005159 (Iran) (individual)
[NPWMD]
2. DASTJERDI, Ahmad Vahid (a.k.a.
VAHID, Ahmed Dastjerdi); DOB 15 Jan
1954; Diplomatic Passport A0002987
(Iran) (individual) [NPWMD]
3. ESMAELI, REZA-GHOLI; DOB 3
Apr 1961; POB Tehran, Iran; Passport
A0002302 (Iran) (individual) [NPWMD]
4. AHMADIAN, ALI AKBAR (a.k.a.
AHMADIYAN, Ali Akbar); DOB circa
1961; POB Kerman, Iran; citizen Iran;
nationality Iran (individual) [NPWMD]
5. HEJAZI, MOHAMMAD; DOB circa
1959; citizen Iran; nationality Iran
(individual) [NPWMD]
6. REZAIE, MORTEZA (a.k.a. REZAI,
Morteza); DOB circa 1956; citizen Iran;
nationality Iran (individual) [NPWMD]
7. SALIMI, HOSEIN (a.k.a. SALAMI,
Hoseyn; a.k.a SALAMI, Hossein; a.k.a
SALAMI, Hussayn); citizen Iran;
nationality Iran; Passport D08531177
(Iran) (individual) [NPWMD]
8. SOLEIMANI, QASEM (a.k.a.
SALIMANI, Qasem; a.k.a SOLAIMANI,
Qasem; a.k.a SOLEMAN!, Qasem; a.k.a
SOLEYMANI Ghasem; a.k.a
SOLEYMANI, Qasem; a.k.a.
SULAIMANI, Qasem; a.k.a.
SULAYMAN, Qasmi; a.k.a. SULEMANI,
Qasem); DOB 11 Mar 1957; POB Qom,
Iran; citizen Iran; nationality Iran;
Diplomatic Passport 008827 (Iran)
issued 1999 (individual) [NPWMD]
Dated: October 25, 2007.
Adam Szubin,
Director, Office of Foreign Assets Control.
[FR Doc. E7-21725 Filed 11-2-07; 8:45 am]
BILLING CODE 4811-45-P
Annex 314
ANNEX315

AO 441 ( Rev. 0711 0) Summons on Third-Party Complain!
UNITED STATES DISTRICT COURT
for the
Northern District of California
See Attachment l For Complete Caption
___ J~_enne·t·t·,· ·e·-t··_a- · l. ...v .- ··T··h·e Is)Qlamf,ic~ -:R- -e··p·-u·b· ·l·i c ··o··f· ·I-ra-n· , .e.t .a.l.. ..
v<
Visa Inc. and Franklin Resources, Inc.
Defendant. T/Jird-parry plainrif!S
V,
______ Bank Melli, _Carlos Acosta, Maria Acosta, et al. _____ _
Third-partJ• defendants
)
)
)
)
)
)
)
Civil Action No. CV-11-5807-CRB
SLIM!VIONS ON A THIRD-PARTY COMPLAINT
To; (Ourd-portJ' defnidont •,. name and address)
See Allachment 2 for Complete List of Third-Party Defendants
FRANKLIN RESOURCES, INC. are
A lawsuit has been filed against defendants VISA INC. and , who as third-party plaintiffannaking
this claim against you to pay part or all of what the defendant may owe to the plaintiffs Michael Bennett, et al.
Within 21 days utter service of this summons on you (not counting the day you received it) - or 60 days if you
arc the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) - -· you must serve on the plaintiff and on the defendant an answer to the attached complaint or a
motion under Ruic 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the defendant or
defendant's auorncy, whose name and address are:
Bruce H. Jackson [[email protected]]; Irene V. Gutierrez [[email protected]]
Baker & McKenzie LLP - Two Embarcadero Center, 11th Floor
San Francisco, CA 94 111 Tel: 415 576 3000; Fax: 415 576 3099
Jt must also be served on the plaintiff or plaintiffs attorney, whose name and address are:
Jane Carol Norman. Esq.
Bond & Norman, PLLC
777 Sixth Street. NW, Suite 410 - Washington, D.C. 20001 - Tel: 202 423 3863; Fax: 202 207 1041
lf you fail to respond, judgment by default will be entered against you for the relief demanded in the third-party
complaint. You also must ti le the answer or motion with lht:: court and serve it on any other par1ies.
A copy of the plainti t1's complaint is also attached. You may - but are not required to - respond to it.
[See ~tachment 3] _ rs J! .. tzo12
Annex 315
AO 441 (Rev. 07/10) Su111n10n• on Third•Pot1y Compl~in1 (Pogc 2)
Civil Action No. CV-11-5807-CRB
PROOF or SERVICE
(This .~e,·tion .~lwuld not be flied with the court unle.~·s required by f'ed. R. Civ. P. 4 (I))
This summons for (m11m: ofindividrml 11ml tit/,•. /lanyJ
was received by me on (date)
!:J I personal ly served the summons on the individual at (plat:eJ
on (date) ----- ---
:J I left the summons at the individual's residence or usual place of abode wilh (name/
; or
, a person of suitable age and discretion who resides there,
on (elate) , and mailed a copy to the individual's last known address; or
······ · ·- -····----
0 I served the summons on (nmnr; of"indivitlua/J
----·· .... ·--·----·-·· ···--·· ·•······ · ········· ·-· ---..
designated by law to accept service of process on behalf of (name of urganizatiun)
on (date)
::, l returned the summons unexecuted because
CJ Other (.'pedfv):
; or
-----
, who is
; or
My fees are$ for Ira vel and $ for services, for a total of$ 0.00
I declare under penalty of perjury lhat this information is tiue.
Date:
·-··--· .. ····-· ··-···---- --- --
Prin11,d name and title
Server 's acldr,ws
Additional information regarding attempted service. etc:
Annex 315
BENNETT, et al. v. THE ISLAMIC REPUBLIC OF IRAN, et al.
U.S.D.C., N.D. CAL., CASE NO. CV-ll-5807•CRB
ATTACHMENT 1
to SUMMONS ON A THIRD·PARTY COMPLAINT
Annex 315
BENNETT, et al. v. THE ISLAMIC REPUBLIC OF IRAN. et al.
U.S.D.C., N.D. CAL., CASE NO. CV-11-5807-CRB
ATTACHMENT 1
to Summons on a Third-Party Complaint
COMPLETE CAPTION
MICHAEL BENNETT, LINDA BENNETT,
Individually and as Co-Administrators of the
Estate of MARLA ANN BENNETT, deceased
c/oTHOMAS FORTUNE FAY, ESQ.
60 I Pennsylvania Ave., NW
Suite 900 - South Building
Washington, DC 20004
Plaintiffs,
V.
THE ISLAMIC REPUBLIC OF IRAN
Ministry of Foreign Affairs
Khomeini A venue
United Nations Street
Tehran, Iran and
THE IRANIAN MINISTRY OF INFORMATION
AND SECURITY
Pasdaran Avenue
Golestan Yekom
Tehran, Iran,
and
FRANKLIN RESOURCES INC.
dba FRANKLIN TEMPLETON FIDUCIARY TRUST
Serve: CT Corpohation Services
818 W. 7' Street
Suite 200
Los Angeles, CA 90017
and
VISA INC
dba VISA INTERNATIONAL SERVICE ASSOCIATION
Serve: CT Corpohation Services
818 W. i Street
Suite 200
Los Angeles, CA 9001 7
Defendants.
Annex 315
VISA INC., a Delaware corporation, and
FRANKLIN RESOURCES, INC. a Delaware
corporation,
Third-Party Plaintiffs,
V.
BANK MELLI, CARLOS ACOSTA, MARIA
ACOSTA, IRVING FRANKLIN, ESTATE OF IRMA
FRANKLIN, LIBBY KAHAN£, ESTATE OF
SONY A KA HANE, CJPPORAH KAPLAN, TOVA
ETTINGER, BARUCH KAHANE, ETHEL GRIFFIN
AS ADMINISTRATOR OF BINYAMIN KAHAN E'S
ESTATE, RABBI NORMAN KAHANE, STEVEN
GREENBAUM, ALAN HAYMAN, SHIRLEE
HAYMAN, THE ESTATE OF MICHAEL HEISER,
deceased, GARY HEISER, FRANCIS HEISER, THE
ESTATE OF LELAND TIMOTHY HAUN, deceased,
IBIS S. HAUN, MILAGRITOS PEREZ.DALIS,
SENATOR HAUN, THE ESTATE OF JUSTIN R.
WOOD, deceased, RICHARD W. WOOD,
KATHLEEN M. WOOD, SHAWN M. WOOD, THE
ESTATE OF EARL F. CARTRETTE, JR., deceased,
DENISE M. EICHSTAEDT, ANTHONY W.
CARTRETTE, LEWIS W. CARTRETTE, THE
ESTATE OF BRIAN MCVEIGH, deceased,
SANDRA M. WETMORE, JAMES V. WETMORE,
THE ESTATE OF MILLARD D. CAMPBELL,
deceased, MARIE R. CAMPBELL, BESSIE A.
CAMPBELL, THE ESTATE OF KEVIN J.
JOHNSON, deceased, SHYRL L. JOHNSON, CHE
G. COLSON, KEVIN JOHNSON, a minor, by his
legal guardian Shyrl L. Johnson, NICHOLAS A.
JOHNSON, a minor, by his legal guardian Shyrl L.
Johnson, LAURA E. JOHNSON, BRUCE
JOHNSON, THE ESTATE OF JOSEPH E. RIMKUS,
deceased, BRIDGET BROOKS, JAMES R. RIMKUS,
ANNE M. RIMKUS, THE ESTATE OF BRENT E.
MARTHALER, deceased, KATIE L. MARTHALER,
SHARON MARTHALER, HERMAN C.
MARTHALER, Ill, MATTHEW MARTHALER,
KIRK MARTHALER, THE ESTATE OF THANH
VAN NGUYEN, deceased, CHRJSTOPHER R.
NGUYEN, THE ESTATE OF JOSHUA E. WOODY,
deceased, DAWN WOODY, BERNADINE R.
BEEKMAN, GEORGE M. BEEKMAN, TRACY M.
SMITH, JONICA L. WOODY, TIMOTHY WOODY,
THE ESTATE OF PETER J. MORGERA, deceased,
MICHAEL MORGERA, THOMAS MORGERA,
THE ESTATE OF KENDALL KITSON, JR.,
deceased, NANCY R. KITSON, KENDALL K.
KITSON, STEVE K. KITSON, NANCY A. KITSON,
Annex 315
THE ESTATE OF CHRISTOPHER ADAMS,
deceased, CATHERINE ADAMS, JOHN E. ADAMS,
PA TRICK D. ADAMS, MICHAEL T. ADAMS,
DANIEL ADAMS, MARY YOUNG, ELIZABETH
WOLF, WILLIAM ADAMS, THE ESTATE OF
CHRISTOPHER LESTER, deceased, CECIL H.
LESTER, JUDY LESTER, CECIL H. LESTER, JR.,
JESSICA F. LESTER, THE ESTATE OF JEREMY
A. TAYLOR, deceased, LA WR ENCE E. TAYLOR,
VICKIE L. TAYLOR, STARLINA D. TAYLOR,
THE ESTATE OF PATRICK P. FENNIG, deceased,
THADDEUS C. FENNIG, CATHERINE FENNIG,
PAUL D. FENNIG, MARK FENNIG, THE UNITED
ST A TES OF AMERICA, • !] ft 5 3 9
Third-Party Defendants.
'wl
Annex 315
~
BENNETT, et al. v. THE ISLAMIC REPUBLIC OF IRAN, et al.
U.S.D.C., N.D. CAL., CASE NO.CV-11-5807-CRB
ATTACHMENT 2
to SUMMONS ON A THIRD-PARTY COMPLAINT
Annex 315
BENNETT, et al. v, THE ISLAMIC REPUBLIC OF IRAN, et al.
U.S.D.C., N.D. CAL., CASE NO. CV-11-5807-CRB
ATTACHMENT 2
to Summons on a Third-Party Complaint
COMPLETE LIST OF THIRD-PARTY DEFENDANTS
Bank Melli,
Carlos Acosta, Maria Acosta, Irving FrankHn, Estate
of l rma Frank lin, Libby Kahane, Estate of Sonya
Kahane, Cipporah Kaplan, Tova Ettinger, Baruch
Kahane, Ethel Griffin As Administrator of Binyamin
Kahane's Estate, Rabbi Norman Kahane,
Steven Greenbaum, Alan Hayman, Shirlee Hayman,
The Estate of Michael Heiser, deceased, Gary Heiser,
Francis Heiser, The Estate of Leland Timothy Haun,
deceased, Ibis S. Haun, Milagritos Perez-Dalis,
Senator Haun, The Estate of Justin R. Wood,
deceased, Richard W. Wood, Kathleen M. Wood,
Shawn M. Wood, The Estate of Earl F. Cartrette, Jr.,
deceased, Denise M. Eichstaedt, Anthony W.
Cartrette, Lewis W. Cartrette, The Estate of Brian
Mcveigh, deceased, Sandra M. Wetmore, James V.
Wetmore, The Estate of Mi llard D. Campbell,
deceased, Marie R. Campbell, Bessie A. Campbell,
The Estate of Kevin J. Johnson, deceased, Shyrl L.
Johnson, Che G. Colson, Kevin Johnson, A Minor,
By His Legal Guardian Shyrl L. Johnson, Nicholas
A. Johnson, A Minor, By His Legal Guardian Shyrl
L. Johnson, Laura E. Johnson, Bruce Johnson, The
Estate of Joseph E. Rimkus, deceased, Bridget
Brooks, James R. Rimkus, Anne M. Rimkus, The
Estate of Brent E. Marthaler, deceased, Katie L.
Marthaler, Sharon Marthaler, Herman C. Marthaler
Ill, Matthew Marthaler, Kirk Marthaler, The Estate
of Thanh Van Nguyen, deceased, Christopher R.
Nguyen, The Estate of Joshua E. Woody, deceased,
Dawn Woody, Bernadine R. Beekman, George M.
Beekman, Tracy M. Smith, Jonica L. Woody,
Timothy Woody, The Estate of Peter J. Morgera,
deceased, Michael Morgera, Thomas Morgera, The
Estate of Kendall Kitson, Jr., deceased, Nancy R.
Kitson, Kendall K. Kitson, Steve K. Kitson, Nancy
A. Kitson, The Estate of Christopher Adams,
deceased, Catherine Adams, John E. Adams, Patrick
Annex 315
D. Adams, Michael T. Adams, Daniel Adams, Mary
Young, Elizabeth Wolf, William Adams, The Estate
of Christopher Lester, deceased, Cecil H. Lester,
Judy Lester, Cecil H. Lester, Jr., Jessica F. Lester,
The Estate of Jeremy A. Taylor, deceased, Lawrence
E. Taylor, Vickie L. Taylor, Starlina D. Taylor, The
Estate of Patrick P. Fennig, deceased, Thaddeus C.
Fennig, Catherine Fennig, Paul D. Fennig, Mark
Fennig,
The United States of America,
And Does 1-20.
Annex 315
BENNETT. et al. v .. THE ISLAMIC REPUBLIC OF IRAN, et al.
U.S.D.C., N.D. CAL., CASE NO. CV-11-5807-CRB
ATTACHMENT 3
to SUMMONS ON A THIRD-PARTY COMPLAINT
PLAINTIFFS' COMPLAINT
Annex 315
.,
Case3 :11-~807-CRB . Documentl Filed12/0~ Page2 of 11
JANE CAROL NORMAN, ESQ.
Calif om la Bar No, 66998
Bond & Norman, PLLC
777 Sbtb Strut, NW
Sutte 410
Wa1bingtoa, DC 20001
202/423-3863
Fu: 202/207-l<Ml
UNITED ST ATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
MICHAEL BENNETT
LINDA BENNETT
Individually and as Co~Administrators of
)
)
)
)
E-filing
the Estate of MARLA ANN BENNETT, deceased
o THOMAS FORTUNE FAY, ESQ.
01 Pennsylvania Ave., NW
uite 900 - South Building ~~ 11 ) · ·15997
ashington, DC 20004
Plaintiffs,
THE ISLAMIC REPUBLIC OF IRAN
Ministry of Foreign Affairs
Khomeini A venue
United Nations Street
Tehran, Iran,
and
THE IRANIAN MINISTRY OF INFORMATION
AND SECURITY
Pasdaran A venue
Go)estan Yekom
Tehran, Iran,
and
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Annex 315
Case3 :11-c~07-CRB Documentl Filed12/02/)JPage3 of 11
FRANKLIN RESOURCES INC )
dba FRANKLIN TEMPLETON FIDUCIARY TRUST )
Serve:CT Corporation Services )
818 W. 71h Street )
Suite 200 )
Los Angeles, CA 90017 )
and )
VISA INC )
dba VISA INTERNATIONAL )
SERVICE ASSOCIATION )
Serve:CT Corporation Services
818 W. 7lh Street
Suite 200
Los Angeles, CA 90017
)
)
)
)
____________ _.D._e.. .O. ~en=d,...an""'t=s.,_ __)
COMPLAINT
2
(I )This Coun has jurisdiction over the subject matter of this action pursuant to 28 U .S.C.
§ J 605A(g)(3) and 28 U .S.C. § I 331. This is an action in rem in accordance with the provisions of
28 U.S.C. § 1655. The Defendants, The Islamic Republic oflran and The Iranian Ministry of
Infonnation and Security, are subject to suit in the couns of the United States pursuant to the
Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A, and 28 U, S.C, § l 605(a)(7), as in effect
before the enactment of 28 U.S.C. § 1605A. Venue lies in this Court pursuant to 28 U.S.C.
§ I 391(f)(3). This is an action in rem for enforcement of a lien as provided by 28 U.S.C.
§ 1605A(g)(3) and 28 U.S.C. §1655,
(2)The Defendant, Franklin Resources Inc., dba Franklin Templeton Fiduciary Trust,
(Franklin) is a corporation organized under the laws of the State of Delaware, and was, at all
times relevant to this action, doing business in the State of California, as to the property which is
the subject of this in rem proceeding. In the course of that business it accepted investments
designated as the property of Defendant, Visa, Inc., whose beneficial owner was in fact the
2
Annex 315
Case3:11-c~07-CRB Documentl Fi ledl2/02,._JPage4 of 11
Defendant, The Islamic Republic Oflran, at all times relevant to this action. The Defendant,
Visa, Inc., dba Visa International Service Association, (Visa) is a corporation organized under
the laws of the State of State of Delaware, and was, at all times relevant to this action, doing
business in the State of California, as to the property which is the subject of this in rem
proceeding.
3
(3)Plaintiffs Michael Bennett and Linda Bennett, domiciliaries of the State of California,
are the parents of decedent. Marla Ann Bennett, who died from injuries sustained during a
terrorist attack in Jerusalem on July 31, 2002. Plaintiffs Michael Bennett and Linda Bennett are
the Co-Administrators of the Estate of Marla Ann Bennett and in that capacity represent their
daughter's other beneficiary pursuant to federal and California st.ate law, Lisa Bennett, decedent's
sister. On August 30, 2007, judgment was entered for Plaintiffs, and against Defendants, The
Islamic Republic of Iran and The Iranian Ministry of Information and Security, in the amount of
$12,904,548.00, of which $404,548.00, was allocated to the estate of Marla Bennett for wrongful
death, $5,000,000.00 was allocated to Linda Bennett, $5,000,000.00 was allocated to Michael ·
Bennett, and $2.5 million was allocated to Lisa Bennett. As of the date of this Complaint the
entire amount of that judgment remains unsatisfied. On January 25,201 I, the United States
District Court For The District Of Columbia, entered an Order pursuant to 28 U.S.C, 1610(c),
permitting Plaintiffs leave to proceed with attachment or execution.
{4)Defendant, The Islamic Republic of lran, is a foreign state and was on July 3 I, 2002,
end is to the present, a state sponsor of terrorism designated as such pursuant to section 6(j) of
the Export Administration Act of I 979 (50 U.S.C. App. §2405(j)), Defendant, The Iranian
Minisry oflnformation and Security, is the Iranian intelligence service through which Iran
sponsored the terrorist group that caused the act of extra judicial killings described below.
3
Annex 315
Case3:11-c'---807-CRB Documentl Filed12/02!'JPage5 of 11
(S)Decedent Marla Ann Bennett, a United States national, was a 24-year-old graduate of
University of California at Berkeley who planned to be teacher. She was a graduate student
working on her master's degree in Judaic studies at the Pardes Institute of Jewish Studies in
Berkeley and a participant in its Melton Center for Jewish Education program at Hebrew
University in Jerusalem at the time of her death. On Wednesday, July 31, 2002, the decedent
was having lunch with two of her friends, Harris-Gershon and Benjamin Blutstein 1, in the
cafeteria of the Hebrew University in Jerusalem. The decedent prepared for a final exam later
that afternoon, her last requirements for the summer session. She intended to fly back home to
San Diego with her boyfriend Michael Simon two days later.
4
(6)At 1 :40 p.m, local time, a nail-studded bomb went off in the crowded cafeteria. The
explosion killed the decedent and six other people and wounded over eighty other individuals,
mostly students. The bomb was placed by a Hamas agent in a bag left in the cafeteria and
activated from a cell phone. These actions were found by Chief Judge Lamberth United States
Dis.-ict Court For The District Of Columbia to have been undertaken by an agent of Hamas with
the material support of the Defendant, The Islamic Republic Of Iran.
(7)Pursuant to SO uses § 1702, the President may:
"(A) investigate, regulate, or prohibil--
(i) any transactions in foreign exchange,
(ii) transfers of credit or payments between, by, through, or to any banking
institution, to the extent that such transfers or payments involve any interest of any
foreii,i country or a national thereof,
(ii i) the importing or exporting of currency or securities,
hy any person, or with respect to any property, subject to the jurisdiction of the United
States .... " See Exhibit A attached.
1 Benjamin Blwtein suffered fatal injuries 1n the att11ek described in this Complaint.
4
Annex 315
Case3:11-~807-CRB Documentl Filed12/0~ Page6 of 11
On November April 9, 1980, wtder the authority of SO U.S.C. 1701-1706, at FR 24432, the
President by regulation exercised his authority as follows (EXHIBIT B):
''Sec, S3S.201 Transactions involving property in which Iran or Iranian entities have
an interest. No property subject to the jurisdiction of the United States or
which is in the possession of or control of persons subject to the
jurisdiction of the United States in which on or after the effective
date Iran has any interest of any nature whatsoever may be transferred,
paid, exported, withdrawn or otherwise dealt in except as authorized."
The Office Of ForeilJ] Assets Control of the United States Department Of The Treasury has
confirmed that none of the Defendants has ever has a license to deal in investments for The
Islamic Republic Of Iran.
(8)On November 2, 2011, Plaintiffs, through counsel, caused a Notice Of Lis Pendens
to be served upon the Defendant Franklin in accordance with the provisions of 28 U.S.C.
§ 160S A(g)(l ), establishing a lien upon the tangible personal property of the Defendant, The
Islamic Republic Of Iran, consisting of securities held for investment by Defendant Franklin
upon an account bearing the name of the Defendant Visa. The lien is enforced as provided in
Chapter 111 of Title 28 of the United States Code (28 U.S.C. § 16S5).
(9)Service upon foreign states is governed by the provisions of 28 U.S.C. §l608(a),
which provides in pertinent part for alternative means of service: (I) through any special
arrangement with the Defendant; (2) through use of any applicable international convention;
(3)by any form of mail requiring a return receipt; or, if service cannot be completed by any of the
foregoing means, through diplomatic channels. In addition 28 U.S.C. § J 608(d) provides that the
foreign state shall serve "an answer or other responsive pleading within sixty days after service
has been made."
s
5
Annex 315
Case3:11-c'--'807-CRB Document! Filed12102JW/ Page7 of 11
6
Wherefore, the premises considered, Plaintiffs request:
( I )That the Court enter an Order directed to the Clerk of this Court that a summons be
issued directed to the Defendant, The Islamic Republic Oflran, requiring that an answer or other
responsive pleading be tiled within sixty days;
(2) That the Court enter an Order directed to the Clerk of this Court that a summonses
be issued directed to the Defendants, Franklin Resources Inc., dba Franklin Templeton Fiduciary
Trust and, and Visa, Inc., dba Visa International Service Association requiring each Defendant
to filet an answer or other responsive pleading within thirty days;
(3)That upon hearing the Court Order turnover of assets of the Defendant, The Islamic
Republic Of Iran, in an amount sufficient to satisfy the judgment, with interest at the rate
applicable by law and the costs of this proceeding as detennined by the Court.
6
Annex 315
' '
Case3:11-~807-CRB Documentl Filed12/02~ Pages of 11
Date: December 2, 2011
NE CAROL NORMAN, ESQ.
allfornia Bar No. 66998
Bond & Norman, PLLC
777 Sixth Street, NW
Suite 410
Washington, DC 20001
202/423-3863
Fu 202/207-1041
JNormas42j@aoLcom
Thomas Fortune Fay
D.C. Bar Id. 23929
THOMAS FORTUNE FAY, P.A.
601 Pennsylvania Ave., N.W.
Suite 900
Washington, DC 20004
(202) 638-4534
Attorney for Plaintiffs
ThomasFaJ@aoLcom
7
7
Annex 315
Case3 :11-~807-CRB Documentl Filed12/02,,_.I Page9 of 11
§ 1702. Presidential authorities
(a) In general.
EXHIBIT A
so uses § 1102
(I) At the times and to the extent specified in section 202 [50 l.iSCS ~ J 70 I J, the President
may, under such regulations as he may prescribe, by means of instructions, licenses, or
otherwise--
(A) investigate, regulate, or prohibit•-
(i) any transactions in foreign exchange,
(ii) transfers of credit or payments between, by, through, or to any banking institution, to
the extent that such transfers or payments involve any interest of any foreign country or a
national thereof,
(iii) the importing or exporting of currency or securities,
8
by any person, or with respect to any property, subject to the jurisdiction of the United States;
(B) investigate, block during the pendency ofan investigation, regulate, direct and compel,
nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal,
transportation, importation or exportation of~ or dealing in, or exercising any right, power, or
privilege with respect to, or transactions involving, any property in which any foreign country or
a national thereofhas any interest by any person, or with respect to any property, subject to the
jurisdiction of the United States; and
(C) when the United States is engaged in armed hostilities or has been attacked by a foreign
country or foreign nationals, confiscate any property, subject to the jurisdiction of the United
States, of any foreign person, foreign organization, or foreign country that he detennines has
planned, authorized, aided, or engaged in such hostilities or attacks against the United States; and
al I right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms
directed by the President, in such agency or person as the President may designate from time to
time. and upon such terms and conditions as the President may prescribe, such interest or
property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest
of and for the benefit of the United States, and such designated agency or person may perfonn
any and all acts incident to the accomplishment or furtherance of these purposes.
(2) In exercising the authorities granted by paragraph ( l ), the President may require any person
to keep a ful I reconl of, and to furnish under oath, in the form of reports or otherwise, complete
information relative to any act or transaction referred to in paragraph (I) either before, during, or
after the completion thereof, or relative to any interest in foreign property, or relative to any
property in which any foreign country or any national thereof has or has had any interest, or as
may be otherwise necessary to enforce the provisions of such paragraph. In any case in which a
report by a person could be required under this paragraph, the President may require the
production of any books of account, records, contracts, letters, memoranda, or other papers, in
the custody or control of such person.
(3) Compliance with any regulation, instruction, or direction issued under this 1i1 k• 1,0 l 1St · i.;
8
Annex 315
' '
Case3:11-c~07-CRB · Documentl Filed12/02/~Page10 of 11
** 170 I et seq.J shall to the extent thereof be a full acquittance and discharge for all purposes of
the obligation of the person making the same. No person shall be held liable in any court for or
with respect to anything done or omitted in good faith in connection with the administration of,
or pursuant to and in reliance on, this title, or any regulation. instruction, or direction issued
under this title.
(b) Exceptions to grant of authority. The authority granted to the President by this section does
not include the authority to regulate or prohibit, directly or indirectly--
( 1) any postal, telegraphic, telephonic, or other personal communication, which does not
involve a transfer of anything of value;
9
(2) donations, by persons subject to the jurisdiction of the United States, of articles, such as
food, clothing, and medicine, intended to be used to relieve human suffering, except to the extent
that the President determines that such donations (A) would seriously impair his ability to deal
with any national emergency declared under section 202 of this 1 i1 le I 50 L!SCS ~ l 70 I], (B) are
in response to coercion against the proposed recipient or donor, or (C) would endanger Armed
Forces of the United States which are engaged in hostilities or are in a situation where imminent
involvement in hostilities is clearly indicated by the circumstances; [or]
(3) the importation from any country, or the exportation to any country, whether commercial or
otherwise, regardless of format or medium of transmission, of any infonnation or informational
materia ls, including but not limited to, publications, films, posters, phonograph records,
photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire
feeds. The exports exempted from regulation or prohibition by this paragraph do not include
those which are otherwise controlled for export under section 5 of the Export Administration Act
of 1979 [)0 I :scs /\pp,. *:? -Hl4 ], or under section 6 of such Act f5 0 USCS Aprix . ~ ~405] to the
extent that such controls promote the nonproliferation or antiterrorism policies of the United
States, or with respect to which acts are prohibited by chapter 37 of title 18, United States Code
(IX u-,cs ~* 791 etseq.];or
(4) any transactions ordinarily incident to travel to or from any country, inc luding importation
of accompanied baggage for personal use, maintenance within any country including payment of
living expenses and acquisition of goods or services for personal use, and arrangement or
facilitation of such travel including nonscheduled air, sea, or land voyages.
(c) Classified information. In any judicial review of a determination made under this section, if
the determination was based on classified information (as defined in section I (a) of the Classified
Information Procedures Act [ IX [jSCS Appx ~ I (a)]} such information may be submitted to the
reviewing·court ex parte and in camera. This subsection does not confer or imply any right to
judicial review.
(Dec. 28, 1977, 11.1 . 95-~~J , Title IJ, § 203, 1.J I Siat. I <,·2,,; Aug. 23, 1988, I' . L. I 00-41 X, Title
II, Subt itle E, § 2502(b)( I), I 02 S1u1. l.171; Apri 1 30, 1994, 11• I.. I 01-216, Title V, Part A, §
525(c)(l), I/IX S ta t. •i7 •~;Oct. 26, 2001, P.L 107-56, Title I,§ 106, 11.~ Sra1. 277.)
9
Annex 315
Case3:11-c~07-CRB Documentl Filed12/02/~Page11 of 11
. .
[Code of Federal Regulations}
[Title 3 I, Volume 2, Parts 200 to endl
[Revised as of July 1, 1997}
EXHIBIT B
From the U.S. Government Printing Office via GPO Access
[CITE: 3JCFR535)
[Page 513-547]
TITLE 31--MONEY AND FINANCE: TREASURY
CHAPTER V--OFFICE OF FOREIGN ASSETS CONTROL, DEPARTMENT OF THE
TREASURY
PART 535--IRANIAN ASSETS CONTROL REGULATIONS
Subpart B--Prohibitions
Sec. 535.201 Transactions involving property in which Iran or Iranian
entities have an interest.
No property subject to the jurisdiction of the United States or
which is in the possession of or control of persons subject to the
jurisdiction of the United States in which on or after the effective
date Iran has any interest of any nature whatsoever may be transferred,
paid, exported, withdrawn or otherwise dealt in except as authorized.
[45 FR 24432, Apr. 9, 1980)
10
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Annex 315
ANNEX316

Case 3:11-cv-05807-CRB Document 79 Filed 04/26/12 Page 1 of 1
Richard W. Wieking
Clerk
UNITED STATES DISTRICT COURT
Northern District of California
450 Golden Gate Avenue
San Francisco, California 94102
www.cand.uscourts.gov
April 26, 2012
General Court Number
415.522.2000
RE: CV 11-05807 CRB MICHAEL BENNETT ET AL-v- THE ISLAMIC REPUBLIC OF
IRAN ET AL
Default is entered as to third-party defendant Bank Melli on April 26, 2012.
RICHARD W. WIEKING, Clerk
OJ!Aitfcw
by Maria Loo
Case Systems Administrator
NDC TR-4 Rev. 3/89
Annex 316

ANNEX317

~ Case 3:11-cv-05807-CRB Document 100 Filed 06/11/12 Page 1 of 3
June 6, 2012
STFlOOCK
~ILED
JUN 11 2012
RICHARD W. WIEKING
ClfRK, U.S. DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
The Honorable Charles R. Breyer
U.S. District Court for the Northern District of California
San Francisco Courthouse, Courtroom 6, - 17th Floor
450 Golden Gate Avenue
San Francisco, CA 94102
By Federal Express
Curtis C. Mechling
Direct Dial 212-806-5609
Direct Fax 212-806-2609
[email protected]
Re: Bennett v. The Islamic Republic of Iran (No. 3:11 -cv- 5807-CRB)
Dear Judge Breyer:
I write on behalf of our clients, the Greenbaum and Acosta Judgment Creditors, 1 thirdparty
defendants in the above-referenced action, in response to the June 4, 2012 letter
to the Court from Jeffrey Lamken, an attorney who may or may not (his letter does not
make clear) represent defaulted third-party defendant Bank Melli.
Mr. Lamken's letter requests an adjournment of all proceedings herein for an
indetem1inate period while Bank Melli seeks to engage counsel in the Northern District
of California and also seeks a licenses from the United States Department of the
Treasury Office of Foreign Assets Control ("OFAC") to pay any lawyer it retains. For
the reasons stated below, the Greenbaum and Acosta Judgment Creditors submit that
the request for an open-ended delay of these proceedings should be denied as unjust and
futile .
1 T he Greenbaum and Acosta Judgment Creditors are third-party defendants Steven M. Greenbaum, on
behalf of himself individually and as Administrator of the Estate of Judith (Shoshana) Lillian Greenbaum,
Alan D. Hayman, Shirlee Hayman, Carlos Acosta, Maria Acosta, Tova Ettinger, the Estate of Irving
Franklin, the Estate of Im1a Franklin, Baruch Kahane, Libby Kahane (on her own behalf and as
Administratrix of the Estate of Meir Kahane), Ethel J. Griffin (as Administratrix of the Estate of Binyamin
Kahane), Nom1an Kahane (on his own behalf and a.~ Executor of the Estate of Sonia Kahane), and
Ciporah Kaplan.
~ 1 1: l, 1 J c r: K ~ T •~ <. 1 ( > c· ~ ,.._ 1. AV A N L l J1 • N l·. \'<.1 \' <; H i,: • I o 5i A I\ c 1:: 1 l s • M I I\ /\l 1
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Annex 317
• Case 3:11-cv-05807-CRB Document 100 Filed 06/11/12 Page 2 of 3
The Honorable Charles R. Breyer
June 6, 2012
Page 2
This is a turnover and interpleader action to determine claims to a fund of
$17,648,962.76 (the "Blocked Assets") held by third- party plaintiffs Visa Inc. ("Visa")
and Franklin Resources Inc. ("Franklin"). The Blocked Assets, which allegedly once
were owned by Bank Melli, have been blocked at least since October 25, 2007,
pursuant to Executive Order 13382, 70 Fed. Reg. 38, 567 Gune 28, 2005), by virtue of
the Treasury Department's designation of Bank Melli as a proliferator of weapons of
mass destruction under the control oflran. See Visa and Franklin's Third- Party
Complaint at ~17 (Docket No. 16). Bank Melli itself has conceded its status as an
agency and instrumentality of Iran. See Weinstein v. Islamic Republic ef Iran, 609 F .3d 43,
48 (2d Cir. 2010).
Our clients are victims of Iranian terrorism who were awarded valid and enforceable US
judgments - judgn1ents of over $19 million for the Greenbaum Judgn1ent Creditors, and
over $350 million for the Acosta Judgment Creditors - against Iran over four years ago.
To date, our clients have yet to recover more than a small portion of the interest
accrued on their judgn1ents.
Bank Melli has already defaulted in this matter. See Clerk's Entry of Default, dated
April 26, 2012, Docket. No. 79. Indeed, in the almost five years since the Blocked
Assets were first blocked, Bank Melli apparently has not taken any action to assert its
interest in such property.
As blocked assets of an agency or instrumentality of Iran, the Blocked Assets here are
unquestionably subject to execution and turnover to satisfy the judgn1ents of victims of
Iranian terrorism. Section 201 (a) of the Terrorist Risk Insurance Act of 2002, codified
as a note to 28 U.S.C. § 1610, provides in relevant part:
Notwithstanding any other provision oflaw, . .. in every case in which a
person has obtained a judgn1ent against a terrorist party on a claim based
upon an act of terrorism, ... the blocked assets of that terrorist party (including
the blocked assets of any agency or instrumentality of that terrorist party) shall be
subject to execution or attachment in aid of execution in order to satisfy such
judgment to the extent of any compensatory damages for which such
terrorist party has been adjudged liable. (Emphasis added).
\ IH1>ll C I~ ,'\ :-. I HO(l (,.K l\ J \\':\ NI.I. I' • NJ:\\' 'IIIIIK • 1 0 '."i .\f\:l,l: 1 1.~ • .\l l :\ ~11
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Annex 317
• Case 3:11-cv-05807-CRB Document 100 Filed 06/11/12 Page 3 of 3
The Honorable Charles R. Breyer
June 6, 2012
Page 3
Under these circumstances, Bank Melli cannot show any fair reason why our clients and
the other terror victims party to this action should be further delayed in recovering on
their judgments. We therefore respectfully request that the Court deny Mr. Lamken's
untimely entreaty to stay the progress of this action.
ltlflllt~'· ..
Curtis C. Mechling Y
cc: Jeffrey A. Lamken, Esq. (by E-Mail and Overnight Mail)
All Counsel of Record (by E-Mail andOvemight Mail)
'- l \:llf) C K & ~I]{{ 1(lC...: & l .\ \ '.-\ :-..J I. I I' · 1 1\, \1lUh • l (l \ ,\ :,.,:<; I J t -S • \ \ l ,\ ,\1 I
I ~ ( ) .\1\11 >1\. I''' · ~ I \\' i UHK , NY 1u o3 8 - ,11J8.! ·1 1:1 . .212 .S1) (1.5 1u u l ,\X _; 12.Kn 6.(1i.)U (1 \\'\\' \\ . \IH I J ()( : K .Cl>1\ I
Annex 317
.. Case 3:11-cv-05807-CRB Document 101 Filed 06/11/12 Page 1 of 2
[oLJIPER FILED
DLA Piper LLP (US)
The Marbury Building
6225 Smith Avenue
Baltimore, Maryland 21209-3600
www.dlapiper.com
JUN 11 2012 Dale K. Cathell
[email protected]
June 7, 2012
Via UPS Overnight Mail
RICHARD W. WIEKING
CLERK, U.S. DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
The Honorable Charles R. Breyer
United State District Judge
United States District Court
for the Northern District of California
450 Golden Gate A venue
San Francisco, California 94102
T 410 580.4122
F 410.580.3122
Re: Bennet/ v. Islamic Republic of Iran, case no. C 11-5807 CRB
Dear Judge Breyer:
This law firm is counsel to the third-party defendants the Estate of Michael Heiser, et al.
(the "Heisers"). The Heisers comprise the seventy-eight (78) family members and personal
representatives of the estates of the United States Air Force personnel who were victims of the
1996 terrorist bombing of the Khobar Towers in Saudi Arabia. The Heisers hold an unsatisfied
judgment in the amount of $591,089,966.00 (the "Judgment") against the Islamic Republic of
Iran. the Iranian Ministry of Information and Security, and the Iranian Islamic Revolutionary
Guard Corps (collectively, "Iran") based upon Iran's role in the terrorist bombing.
The Heisers are in receipt of the June 4, 2012 letter to the Court from Bank Melli's
proposed counsel and the June 6, 2012 letter from the Greenbaum and Acosta Judgment
Creditors. For all the reasons set forth in the Greenbaum and Acosta's June 6, 2012 letter, which
is incorporated by reference herein, Bank Melli's proposed counsel's untimely request to stay
this matter should be denied. No valid legal or factual basis exists for the untimely stay request.
cc: (via e-mail)
Curtis C. Mechling
James L. Bernard
Thomas Faye
Jane C. Norman
Respectfully submitted,
[5~
Dale K. Cathell
Annex 317
Case 3:11-cv-05807-CRB Document 101 Filed 06/11/12 Page 2 of 2
[oLJIPER
The Honorable Charles R. Breyer
June 7, 2012
Page Two
Bruce H, Jackson
Irene V. Gutierrez
Richard M. Kremen
Frank T. Pepler
Jeffrey A. Lamken
EAST\48704142.1
Annex 317
Case 3:11-cv-05807-CRB Document 103 Filed 06/18/12 Page 1 of 11
1 STROOCK & STROOCK & LAVAN LLP
CURTIS C. MECHLING (Admitted Pro Hae Vice)
2 JAMES L. BERNARD (Admitted Pro Hae Vice)
BENJAMIN WEATHERS-LOWIN (Admitted Pro Hae Vice)
3 180 Maiden Lane
New York, NY 10038
4 Telephone: 212-806-5400
Facsimile: 212-806-6006
5 Email: [email protected]
CATHERINE HUANG (STATE BAR NO. 271886)
6 2029 Century Park East
Los Angeles, CA 9006-7-3086
7 Telephone: 310-556-5800
Facsimile: 310-556-5959
8 Email: [email protected]
9 Attorneys for Third-Party Defendants
Steven M. Greenbaum, et al. and Carlos Acosta, et al.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
)
MICHAEL BENNETT, et al., )
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) Case No. CV-11-5807-CRB-NJV
Plaintiffs, )
) GREENBAUM AND ACOSTA JUDGMENT
v. ) CREDITORS' MEMORANDUM OF LAW
) IN OPPOSITION TO BANK MELLI'S
ISLAMIC REPUBLIC OF IRAN, et al., ) MOTION FOR STAY OF DISTRIBUTION
)
Defendants. )
______________ ) Before the Honorable Charles R. Breyer and
) Nandor J. Vadas
VISA INC. and )
FRANKLIN RESOURCES, INC., ) Date Action Filed: December 2, 2011
)
Third-Party Plaintiffs, )
)
~ )
)
BANK MELLI, et al., )
)
Third-Party Defendants. )
_______________ )
- 1 -
MEMORANDUM OF LAW IN OPPOSITION TO BANK MELLI'S MOTION FOR STAY OF DISTRIBUTION
Annex 317
Case 3:11-cv-05807-CRB Document 103 Filed 06/18/12 Page 2 of 11
1 Third-Paity Defendants the Greenbaum and Acosta Judgment Creditors1, by and through
2 their undersigned counsel, respectfully submit this memorandum oflaw in opposition to Bank
3 Melli's so-called Motion for Stay of Distribution, dated June 12, 2012 (the "Stay Motion") and
4 filed in the above-captioned action.
5 PRELIMINARY STATEMENT
6 Five years after the interpleaded assets at issue (the "Blocked Assets") were first frozen,
7 more than three months after receiving formal notice of these proceedings, and nearly two months
8 after this Court entered a default against it, Bank Melli has suddenly made its facially improper
9 Stay Motion to stop the lawful turnover of the Blocked Assets to victims oflran-sponsored
10 terrorism. It does so just days after all pruties before the Court (collectively, the "Parties"/
11 submitted to the Comt the Pruties' Stipulation and Proposed Order Awarding Turnover of Blocked
12 Assets, Discharge of Stakeholders and Entry of Final Judgment on Consent of Parties, dated June
13 11, 2012 (the "Stipulation and Proposed Order"), by which the Patties have resolved all competing
14 claims to the Blocked Assets and agreed, subject to Court approval, to an equitable distribution of
15 that prope1ty to judgment creditors.
16 Bank Melli presumes to make its motion even before vacatur of its default and at a time
17 when it does not have standing to seek a stay. Even more remarkable, the Stay Motion does not
18 contain a single sentence addressing the legal standard for the stay Bank Melli seeks, nor does it
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1 The "Greenbaum and Acosta Judgment Creditors" are third-party defendants Steven M. Greenbaum (on his own
behalf and as Administrator of the Estate of Judith (Shoshana) Lillian Greenbaum), Alan D. Hayman, and Shirlee
Hayman (the "Greenbaum Judgment Creditors"); and Carlos Acosta, Maria Acosta, Tova Ettinger, the Estate of
Irving Franklin, the Estate of Irma Franklin, Baruch Kahane, Libby Kahane ( on her own behalf and as
Administratrix of the Estate of Meir Kahane), Ethel J. Griffin (as Administratrix of the Estate ofBinyamin
Kahane), Norman Kahane (on his own behalf and as Executor of the Estate of Sonia Kahane), and Ciporah Kaplan
(the "Acosta Judgment Creditors").
2 On April 30, 2012, defendants and third-party plaintiffs Visa Inc. ("Visa") and Franklin Resources, Inc.
("Franklin") filed, at the behest of the U.S. Department ofJustice, a Notice of Voluntary Dismissal of Third-Party
Defendant the United States of America. ECF Dkt. No. 84. On May 17, 2012, Michael and Linda Bennett,
individually and on behalf of themselves individually and as Co-Administrators of the Estate of Marla Ann Bennett
(the "Bennett Plaintiffs") filed a Notice of Voluntary Dismissal of Defendants the Islamic Republic oflran ("Iran")
and the Iranian Ministry oflnf01mation and Security ("MOIS"). ECF Dkt. No. 90. Accordingly, the only
remaining parties not currently in default are: the Bennett Plaintiffs, Visa, Franklin, the Greenbaum and Acosta
Judgment Creditors, and third-party defendants the Estate of Michael Heiser, et al. ("the Heiser Judgment
Creditors") (collectively, the "Parties").
-2-
MEMORANDUM OF LAW IN OPPOSITION TO BANK MELLI'S MOTION FOR STAY OF DISTRIBUTION
Annex 317
Case 3:11-cv-05807-CRB Document 103 Filed 06/18/12 Page 3 of 11
1 provide any legal or factual support for such extraordinary and procedurally improper relief.
2 Rather, Bank Melli's submission is nothing more than a preview of certain arguments it plans to
3 raise in support of a separate motion to vacate its default, which it promises to file by June 18,
4 2012.3
5 The Stay Motion is not only procedurally improper, but also substantively without merit.
6 Bank Melli cannot show any grounds for stay or any likelihood of success on any future motion to
7 vacate its default because: (1) service via registered international mail upon Bank Melli's Paris,
8 France branch constituted good and proper service; (2) Bank Melli has no meritorious defenses to
9 the Greenbaum and Acosta Judgment Creditors' claims for turnover of the Blocked Assets pursuant
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to, inter alia, § 201 of the Terrorism Risk Insurance Act of 2002 ("TRIA"); and (3) lifting the
default against Bank Melli and/or staying this proceeding would, in fact, work a great prejudice
upon the judgment creditors who have been struggling for years to win a recovery on their
judgments against Iran and its agencies and instrumentalities. The Stay Motion therefore should be
denied.
ARGUMENT
I. BANK MELLI LACKS STANDING TO MOVE FOR A STAY
17 The entry of a default for non-appearance or failure to plead precludes the defaulting party -
18 here, Bank Melli-from raising any defenses on the merits. See, e.g., Geddes v. United Financial
19 Group, 559 F.2d 557, 560 (9th Cir. 1977) ("The general rule oflaw is that upon default the factual
20 allegations of the complaint ... will be taken as true."); In re Consol. Pretrial Proceedings in Air
21 W Sec. Litig., 436 F. Supp. 1281, 1286 (N.D. Cal. 1977) ("[TJhe party in whose favor a default has
22 been entered is entitled to the benefit of all reasonable inferences from the evidence tendered, and
23 attempts by the party against whom a default has been entered to attack the validity of the
24 allegations deemed proven by the default are to be strictly circumscribed."). Simply put, Bank
25 Melli is not even a proper party before the Court. It follows that Bank Melli has no standing to
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3 The Parties expressly reserve their rights to fully respond to any factual material and arguments submitted by Bank
Melli in supp011 of its promised motion to Vacate the default.
- 3 -
MEMORANDUM OF LAW IN OPPOSITION TO BANK MELLI'S MOTION FOR STAY OF DISTRIBUTION
Annex 317
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Case 3:11-cv-05807-CRB Document 103 Filed 06/18/12 Page 4 of 11
bring this so-called Motion for Stay of Distribution. See id. The Court should not consider any
motion by Bank Melli unless and until the default judgment against it is vacated.
II. SERVICE OF PROCESS BY INTERNATIONAL MAIL UPON BANK MELLI'S
PARIS, FRANCE BRANCH CONSTITUTED VALID SERVICE
Any attempt by Bank Melli to attack the validity of service of process will fail as a matter
of law and based upon documentary record already before the Court.
In accordance with The Hague Convention on the Service Abroad of Judicial and
ExtraJudicial Documents in Civil or Commercial Matters (the "Hague Convention"), Article l0(a),
as made applicable by 28 U.S.C. § 1608(b)(2) of the Foreign Sovereign Immunities Act, 28 U.S.C.
§ 1602, et seq. (the "FSIA"), on March 5, 2012, Visa and Franklin served Bank Melli with a
summons on third-party complaint, the third-party complaint and additional court-issued
documents via U.S. International Mail - Registered and Return Receipt Requested for International
Mail on Bank Melli's Paris, France branch, as evidenced by the Certificate of Service on file with
this Court. See ECF Dkt. No. 45. In accordance with§ 1608(c)(2) of the FSIA, such service was
deemed complete on March 12, 2012, as indicated on the Return Receipt Requested as the date on
which the service of process documents were actually received and signed for by Bank Melli's
official agent in Paris, France. See id.
The Ninth Circuit, like other courts, has recognized that Article lO(a) of the Hague
Convention permits service of process by international mail in countries such as France and the
United States that have ratified such article without objection. See Brockmeyer v. May, 383 F.3d
798, 803 (9th Cir. 2004); Ackermann v. Levine, 788 F.2d 830, 838 (2d Cir. 1986); Practical
Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad
of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 30 (1984); 1 B. Ristau,
International Judicial Assistance (Civil and Commercial)§ 4-10 at 132 (1984) (United States has
made no objection to service by international mail under Article lO(a) in this country). Moreover,
because most courts to have considered Article lO(a) have held that article to authorize service by
international mail, such courts have further held that such service need not also satisfy federal or
state service of process provisions, such as those found in Rule 4 of the Federal Rules of Civil
-4-
MEMORANDUM OF LAW IN OPPOSITION TO BANK MELLI'S MOTION FOR STAY OF DISTRIBUTION
Annex 317
Case 3:11-cv-05807-CRB Document 103 Filed 06/18/12 Page 5 of 11
1 Procedure. See, e.g., Ackermann, 788 F.2d at 840 ("The old Federal Rule 4 was superseded by the
2 Hague Convention and thus presumptively should not limit application of the Convention"), citing
3 Cook v. United States, 288 U.S. 102, 119 (1933) (subsequent treaty given effect over prior,
4 inconsistent federal statute).
5 Bank Melli's reliance on Brockmeyer as support for the argument that service here was
6 ineffective because it failed to also fully comply with Rule 4 is misplaced. Indeed, the facts here
7 are starkly different than those of Brockmeyer, where a plaintiff obtained a default judgment
8 against a British defendant after twice attempting service "simply [by] dropp[ing] the complaint
9 and summons in a mailbox in Los Angeles, to be delivered by ordinary, international first class
10 mail" to a post office box ostensibly belonging to the defendant in England. Brockmeyer, 383 F.3d
11 at 809. The plaintiff in Brockmeyer did not receive a signed receipt for either package, and the
12 record was wholly unclear as to whether the defendant ever received actual notice of the action
13 against it at any point prior to entry of default judgment.
14 Here, by contrast, the service documents were sent by registered mail return receipt
15 requested, which return receipt indicates that Bank Melli was, in fact, served and did, in fact,
16 receive actual notice of this proceeding. But for the fact that Visa's and Franklin's counsel mailed
17 the service documents himself, rather than directing the Clerk of Court to do so, all other aspects of
18 the service upon Bank Melli were in compliance with Fed. R. Civ. P. Rule 4(f)(2)(C)(ii). Cf.
19 Marks v. Alfa Group, 615 F. Supp. 2d 375,380 (E.D. Pa. 2009). The fact that counsel mailed the
20 service document to Bank Melli's Paris branch himself does not invalidate service. Indeed, "[t]he
21 Ninth Circuit has adopted a substantial compliance test for the FSIA's notice requirements; a
22 plaintiffs failure to properly serve a foreign state defendant will not result in dismissal if the
23 plaintiff substantially complied with the FSIA's notice requirements and the defendant had actual
24 notice." Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1129 (9th Cir. 2010), citing Straub v.
25 AP Green, Inc., 38 F.3d 448,453 (9th Cir. 1994). In Straub, the Ninth Circuit excused the
26 plaintiffs "failure to dispatch the complaint by the clerk of the court" because the foreign state had
27 "received actual notice of the lawsuit." See 38 F.3d at 453-454. "By the same token, the FSIA's
28 service requirements have been substantially complied with in this case." Peterson, 627 F.3d at
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1 1129 (holding service effective despite issuing from plaintiffs' counsel directly rather than clerk of
2 court); see also S.E.C. v. Internet Solutions for Business Inc., 509 F.3d 1161, 1166 (9th Cir. 2007)
3 ("A signed return of service constitutes prima facie evidence of valid service which can be
4 overcome only by strong and convincing evidence."); Meadows v. Dominican Republic, 817 F .2d
5 517, 521 (9th cir. 1987) (foreign sovereign defendants held "culpable" for their defaults where they
6 "received actual or constructive notice of the filing of the action and failed to answer.").
7 III.
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BANK MELLI BAS NO MERITORIOUS DEFENSES TO THE TURNOVER OF
ITS BLOCKED ASSETS PURSUANT TO § 201 OF TRIA
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A. Section 201 of TRIA Permits Execution Against
Property of Foreign Agencies and Instrumentalities
Bank Melli does not contend that the Blocked Assets are not properly blocked by the
Department of the Treasury or that any of the other requirements under§ 201 ofTRIA have not
been satisfied.4 Unable to refute those indisputable facts, Bank Melli merely argues that TRIA
does not obviate the presumption of separate juridical entity status for foreign instrumentalities
discussed by the Supreme Court in First National City Bank v. Banco Para El Comercio Exterior
de Cuba, 462 U.S. 611 (1983) ("Bancec").
Bank Melli refuses to acknowledge, however, that the plain language ofTRIA vitiates any
such argument. As this Court (Vadas, M.J.) recognized in the related matter captioned Bennett, et
al. v. Islamic Republic of Iran, et al., Case No. CVl l-80065-MISC-CRB (the "Related Bennett
Proceeding")5, "[u]nder [§ 201 of] the Ten-orism Risk Insurance Act of2002 ('TRIA'), the
'blocked assets' of a ten-orist party or its agency or instrumentality are subject to execution to
satisfy a judgment obtained under the FSIA's ten-orism exception,§ 1605(a)(7)." Bennett v.
Islamic Republic of Iran, 2011 WL 3157089 at *5 (N.D.Cal. July 26, 2011) (emphasis added); see
Pub.L. No. 107-297, Title II,§ 20l(a), 116 Stat. 2322, 2337 (2002) (codified at 28 U.S.C. § 1610
4 Bank Melli has already conceded these points in other litigation. See Weinstein v. Islamic Republic of Iran, et al.,
609 F.3d 43, 48, n.1 (2d Cir. 2010) (noting that federal law blocks all property and interests in property of Bank
Melli within the United States and that Bank Melli did not dispute that all of the elements of§ 20l(a) ofTRIA had
been met).
5 The Related Bennett Proceeding was related to the above-captioned matter by Order of the Court, dated December
19, 2011 (ECF Dkt. No. 52).
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1 note); Weinstein, 609 F.3d at 47-51. In so ruling, Magistrate Judge Vadas expressly relied on the
2 decision in Weinstein, in which the Second Circuit flatly rejected the very same argument advanced
3 by Bank Melli here. See Weinstein, 609 F.3d at 49 ("Bank Melli's argument is belied by the plain
4 language of Section 201(a), as well as by its history and purpose."); id. at 51 ("What the TRIA did,
5 instead [ofrevisingjudgments against Iran to include agencies and instrumentalities of Iran] was to
6 ovenide the Supreme Court's reading in ['Bancec '] that 'duly created instrumentalities of a foreign
7 state are to be accorded a presumption of independent status."'). The Weinstein decision conectly
8 recognized that§ 201 ofTRIA "clearly differentiates between the party that is the subject of the
9 underlying judgment itself, which can be any tenorist party (here, Iran), and parties whose blocked
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assets are subject to execution or attachment, which can include not only the terrorist party but also
'any agency or instrumentality of that terrorist party,"' and hence serves to overrule Bancec in the
limited context of victims' execution on tenorism-relatedjudgments. Id. at 49 (emphasis added).6
Indeed, the legislative history is richly supportive on this point; Senator Harkin, a sponsor ofTRIA,
explained as follows while addressing the conference report accompanying the act:
[TRIA] expressly addresses three particular issues which have vexed
victims of tenorism in th[e] context [of blocked terrorist assets].
First, there has been a dispute over the availability of "agency and
instrumentality" assets to satisfy judgments against a terrorist state
itself. Let there be no doubt on this point. [TRIA] operates to strip a
terrorist state of its immunity from execution or attachment in aid of
execution by making the blocked assets of that terrorist state,
including the blocked assets of any of its agencies or
instrumentalities, available for attachment and/or execution of a
judgment issued against that terrorist state. Thus, for purposes of
enforcing a judgment against a tenorist state, [TR/A] does not
recognize any juridical distinction between a terrorist state and its
agencies or instrumentalities.
148 Cong. Rec. Sl 1524, at Sl 1528 (Nov. 19, 2002) (statement of Sen. Harkin) (emphasis added).
6 Although Bank Melli notes that the TRIA versus Bancec issue is the subject of its petition for a writ of certiori
currently pending before the Supreme Court, it makes bare mention of the fact that the United States recently
submitted a brief as Amicus Curiae in that action in which it unequivocally supports the Second Circuit's holding
that TRIA permits attachment and execution of the property of a foreign state's agencies and instrumentalities. See
Bank Melli Iran New York Representative Office v. Weinstein, 2012 WL 1883085 ( May 24, 2012). Nor do Bank
Melli's remarks in this regard realistically characterize the likelihood that the Supreme Court will grant review, the
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MEMORANDUM OF LAW lN OPPOSITlON TO BANK MELLI'S MOTION FOR STAY OF DISTIUBUTION
Annex 317
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Case 3:11-cv-05807-CRB Document 103 Filed 06/18/12 Page 8 of 11
The few authorities actually cited by Bank Melli are not to the contrary and speak only to
older provisions of the FSIA pre-dating TRIA's enactment. See, e.g., Flatow v. Islamic Republic of
Iran, 308 F.3d 1065, 1069 (9th Cir. 2002) (considering whether certain earlier amendments to 28
U.S.C. § 1605(a)(7), not TRlA, altered the application of the Bancec presumption); Alejandre v.
Telefonica Larga Distancia, de Puerto Rico, Inc., 183 F.3d 1277 (11 Cir. 1999) (a pre-TRIA case
holding that 28 U.S.C. § 161 O(f)(l )(A) did not overcome Bancec presumption).
B. Section 201 of TRIA Is Not Impermissibly Retroactive
Bank Melli's second argument, that TRIA does not purport to be retroactive and therefore
should not apply where conduct underlying the judgment predates the TRIA's enactment,
miscomprehends TRIA's role within the basic framework of the FSIA, which speaks both to
jurisdictional immunity from suit and immunity from attachment and execution. See, e.g., Peterson
v. Islamic Republic of Iran, 627 F .3d 1117, 1124 (9th Cir. 2010). Codified as a note to § 1610 of
the FSIA ("Exceptions to the immunity from attachment or execution"), § 201 of TRIA merely
provides jurisdiction over foreign agencies and instrumentalities of terrorist parties in the postjudgment
context of execution and attachment proceedings to satisfy judgments "for which there
was original jurisdiction under the FSIA." Bennett, 2011 WL 3157089 at *5 (emphasis added),
citing Weinstein, 609 F.3d at 52. It follows that TRIA is not impermissibly retroactive because it
does not impose any new or additional liability upon Iran for its conduct underlying the judgments
20 sought to be enforced in this proceeding.
21 In Landgraf v. USI Film Prods., a case relied upon by Bank Melli, the Supreme Court held
22 that a statute is impermissibly retroactive if, inter alia, it "imposes a new duty, or attaches a new
23 disability, in respect to transactions or considerations already past." 511 U.S. 244,269 (1994).
24 The Supreme Court further noted in Landgraf that "[a] statute [is not impermissibly retroactive]
25 merely because it is applied in a case arising from conduct antedating the statute's enactment, or
26 upsets expectations based in prior law." Id. at 269 (internal citations omitted). Rather, Landgraf
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chance of which is speculative at best (especially given the plain language of the statute and the Government's
recommendation that the Supreme Court deny Bank Melli's petition). See id.
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1 instructs courts to assess "the nature and extent of the change in the law and the degree of
2 connection between the operation of the new rule and a relevant past history," and to be guided in
3 such assessment by ''familiar considerations of fair notice, reasonable reliance, and settled
4 expectations." Id. at 270 (emphasis added).
5 In applying the holding of Landgraf to TRIA, one other court has already ruled that TRIA
6 cannot be considered impermissibly retroactive because its passage did not deprive Iran or any
7 third-party agencies or instrumentalities oflran of any "legitimate expectations." See Hausler v.
8 JPMorgan Chase Bank, NA., 2012 WL 601034 at *18 (S.D.N.Y. Feb. 22, 2012), citing General
9 Motors Corp. v. Romein, 503 U.S. 181, 191 (1992).
10 Section 201 ofTRIA only applies in the limited context of blocked assets, which by
11 definition are assets that have been seized or frozen by the Executive Branch pursuant to the
12 authority vested in it by, inter alia, the International Economic Emergency Powers Act, 50 U.S.C.
13 § 1701, et seq. ("IEEPA"). As the court in Hausler correctly recognized, IEEPA "provides the
14 President with the discretion to confiscate assets blocked pursuant to OFAC regulations. This was
15 true before the passage of the TRIA; it is still true." Hausler, 2012 WL 601034 at *18. Indeed,
16 such blocked assets "are subject to a myriad of sources of diminution - including attachment and
17 execution to satisfy judgment." Id. Thus, "[t]he President's authority to summarily dispose of
18 blocked assets destroys any claim that [Bank Melli] could have justifiably relied upon the Blocked
19 [Assets] remaining in interest-bearing accounts until .... a detente in U.S.-[Iranian] relations." Id.
20 Moreover, while TRIA was enacted in 2002, Bank Melli's assets in the United States were not
21 blocked until 2007, when Bank Melli was designated by the Executive Branch as a Weapons of
22 Mass Destruction Proliferator. Thus, the illicit conduct underlying the blocking of Bank Melli's
23 property, including the Blocked Assets, occurred - contrary to Bank Melli's assertions - well after
24 TRIA's enactment, and Bank Melli should have fully appreciated that its conduct, i.e., its
25 proliferation of weapons of mass destruction, could result in its U.S. property being blocked and
26 executed against by judgment creditors oflran pursuant to§ 201 ofTRIA.
27 Just as recognized by the court in Hausler, moreover, "both prior to and after the passage of
28 TRIA, the same straightforward and obvious means [for Bank Melli] to protect [its] interests from
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1 this persistent risk was and is available to [Bank Melli]: pursue an OFAC license." Hausler, 2012
2 WL 601034 at *18. Significantly, not a shred of evidence has been presented to suggest that Bank
3 Melli has ever sought an OF AC license with respect to the Blocked Assets in the jive years since
4 Bank Melli's assets in the United States were originally blocked in 2007.
5 IV. THE REQUESTED STAY WOULD UNJUSTLY PREJUDICE
THE JUDGMENT CREDITORS
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Contrary to Bank Melli's contentions, lifting the default against Bank Melli and/or staying
this proceeding would seriously prejudice the Greenbaum and Acosta Judgment Creditors, as well
as the other judgment creditor Parties, who - like the Greenbaum and Acosta Judgment Creditors -
are judgment creditors of Iran who have already been waiting many years to be compensated for
their injuries and the injuries of their loved ones. Many of these Parties are now elderly and infirm,
and every day that passes is another day that they have been deprived of justice. Given that their
injuries were incurred as a result of heinous acts of Iranian-sponsored global terrorism - acts
bankrolled by state-owned and operated financial institutions like Bank Melli, which itself is
designated by the U.S. Government as a Weapons of Mass Destrnction Proliferator- it adds insult
to injury to further delay justice for such parties at the post-default behest of a party with such
blood-stained hands.
17 CONCLUSION
18 For all of the foregoing reasons, the Greenbaum and Acosta Judgment Creditors
19 respectfully request that the Court deny Bank Melli's Stay Motion and enter the Parties' Stipulation
20 and Proposed Order.
21 Dated: New York, New York
June 18, 2012
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STROOCK & STROOCK & LAV AN LLP
By: Isl Curtis C. Mechling
Curtis C. Mechling
(Admitted Pro Hae Vice)
James L. Bernard
(Admitted Pro Hae Vice)
Benjamin Weathers-Lowin
(Admitted Pro Hae Vice)
180 Maiden Lane
New York, New York 10038
Attorneys for the Greenbaum and Acosta
Judgment Creditors
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Case 3:11-cv-05807-CRB Document 103 Filed 06/18/12 Page 11 of 11
CERTIFICATE OF SERVICE
I hereby certify that on June 18, 2012, I electronically transmitted the attached document to
the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic
Filing to the CM/ECF registrants on record in this matter.
Isl Curtis C. Mechling
Curtis C. Mechling
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1 FRANK PEPLER (SBN 100070)
DLA PIPER LLP(US)
2 555 Mission Street, Suite 2400
San Francisco, CA 94105-2933
3 Tel: 415.836.2500
Fax: 415.836.2501
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and
DALE K. CATHELL (Admitted Pro Hae Vice)
6 DAVID B. MISLER (Admitted Pro Hae Vice)
DLA PIPER LLP (US)
7 6225 Smith A venue
Baltimore, MD 21209
8 Tel: 410.580.3000
Fax: 410.580.3001
Attorneys for the Estate of Michael Heiser, et al.
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MICHAEL BENNETT, et al.,
Plaintiffs,
V.
ISLAMIC REPUBLIC OF IRAN, eta!.,
Defendants.
VISA, INC. and FRANKLIN
20 RESOURCES, INC.,
21 Third-Party Plaintiffs,
22 V.
23 BANK MELLI, et al.,
24 Third-Party Defendants.
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CV NO. 11-cv-5807 (CRB)
ESTATE OF MICHAEL HEISER, ET AL.'S
RESPONSE IN OPPOSITION TO BANK
MELLI'S MOTION FOR STAY OF
DISTRIBUTION
(Honorable Charles R. Breyer)
DLA PIPER LLP (US) EAST\48855259.2 NOTICE OF JOINDER THIRD-PARTY DEFS THE ESTATE OF MICHAEL HEISER TO THE
GREENBAUM AND ACOSTA JUDGMENT CREDITORS' MEMORANDUM OF LAW IN OPPOSITION
TO BANK MELLI'S MOTION FOR STAY OF DISTRIBUTION
SAN FRANCISCO
Annex 317
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DLA PIPER LLP (US)
SAN FRANCISCO
Case 3:11-cv-05807-CRB Document 106 Filed 06/26/12 Page 2 of 4
The Estate of Michael Heiser, et al. (collectively, the "Heisers"), by and through their
undersigned counsel, hereby respond in Opposition to Bank Melli's Motion for Stay of
Distribution, and in connection therewith state as follows:
Background
1. The Heisers hold an unsatisfied judgment under 28 U.S.C. §§ 1605(a)(7)
and 1605A against Iran in the total amount of $591,089,966.00, plus post-judgment interest at the
legal rate. The judgment is comprised of two parts: (1) a judgment dated December 22, 2006 in
the amount of $254,431,903.00 and (2) a supplemental judgment dated September 30, 2009, in
the amount of $336,658,063.00.
2. On June 11, 2012, the Heisers, the Greenbaum and Acosta Judgment Creditors, the
Bennett Judgment Creditors, and Visa, Inc. ("Visa") and Franklin Resources, Inc. ("Franklin")
jointly submitted a Stipulation and Proposed Order Awarding Turnover of Blocked Assets,
Discharge of Stakeholders and Entry of Final Judgment on Consent of Parties (the "Stipulation
and Proposed Order") (ECF Dkt. No. 95) by which the parties resolved all competing claims to
the assets deposited into the Court's registry by Visa and Franklin and agreed, subject to Court
approval, to a distribution of that property to the judgment creditors.
3. On June 12, 2012, Bank Melli filed a Motion for Stay of Distribution (the "Stay
Motion") (ECF Dkt. No. 98).
4. On June 18, 2012, the Greenbaum and Acosta Judgment Creditors filed a
Memorandum of Law in Opposition to Bank Melli's Motion for Stay of Distribution (the
"Greenbaum and Acosta Opposition") (ECF Dkt. No. 103).
Argument
I. The Heisers Join and Adopt the Arguments of the Greenbaum and Acosta Judgment
Creditors.
5. The Heisers hereby join and adopt all of the arguments set forth in the Greenbaum
and Acosta Opposition, which is incorporated by reference herein.
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EAST\48855259.2 NOTICE OF JOINDER THIRD-PARTY DEFS THE ESTATE OF MICHAEL HEISER TO THE
GREENBAUM AND ACOSTA JUDGMENT CREDITORS' MEMORANDUM OF LAW IN OPPOSITION
TO BANK MELLI'S MOTION FOR STAY OF DISTRIBUTION
Annex 317
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SAN FRANCISCO
Case 3:11-cv-05807-CRB Document 106 Filed 06/26/12 Page 3 of 4
II. The Supreme Court Has Denied Cert. in Weinstein v. Islamic Republic of Iran.
6. In support of the Stay Motion, Bank Melli relies heavily upon its petition for writ
of certiorari (the "Cert. Petition") before the United States Supreme Court in Bank Melli Iran v.
Weinstein, No. 10-947 (S. Ct.). Indeed, Bank Melli specifically suggested that it would be
inappropriate to proceed with a distribution of assets in this case "where an imminent Supreme
Court decision could undermine any legal basis for execution." Stay Motion at 8-9. However,
yesterday, the United States Supreme Court denied Bank Melli's Cert. Petition in Weinstein.
Accordingly, the primary thrust of Bank Melli's motion is no longer applicable.
7. In Weinstein v. Islamic Republic of Iran, 609 F.3d 43 (2d Cir. 2010), the Second
Circuit rejected virtually the identical arguments being raised by Bank Melli before this Court.
The Supreme Court's denial of the Cert. Petition means that the Second Circuit's decision in
Weinstein remains firmly in place. Therefore, this Court should adopt the Second Circuit's
reasoning and likewise reject the argument by Bank Melli in this case that TRIA does not
override First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983)
("Bancec") and the former presumption of separate juridical entity status of admitted agencies
and instrumentalities of state sponsors of terrorism. In Weinstein, the Second Circuit expressly
held that
[ w ]hat the TRIA did, instead [ of revising a judgment against Iran to include
agencies and instrumentalities of Iran] was to override the Supreme Court's
reading in [Bancec] that 'duly created instrumentalities of a foreign state are to be
accorded a presumption of independent status."). The effect of the TRIA,
therefore, was simply to render a judgment more readily enforceable against a
related third party. The judgment itself was in no way tampered with, and
separation of powers was thus in no way off ended.
Weinstein, 609 F.3d at 51.
8. Bank Melli admits that it is a wholly-owned instrumentality of the Government of
Iran and that its assets have been blocked. See, e.g., Stay Motion at 2 (stating that Bank Melli is a
"state-owned Iranian Bank"); Weinstein, 609 F.3d at 48 ("Bank Melli concedes that it is an
instrumentality of Iran."). Moreover, Bank Melli does not dispute that the remainder of the
requirements of TRIA § 201 and 28 U.S.C. § 1610(g) are satisfied.
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EAST\48855259.2 NOTICE OF JOINDER THIRD-PARTY DEFS THE ESTATE OF MICHAEL HEISER TO THE
GREENBAUM AND ACOSTA JUDGMENT CREDITORS' MEMORANDUM OF LAW IN OPPOSITION
TO BANK MELLI'S MOTION FOR STAY OF DISTRIBUTION
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DLA PIPER LLP (US)
SAN FRANCISCO
Case 3:11-cv-05807-CRB Document 106 Filed 06/26/12 Page 4 of 4
9. Accordingly, for all the reasons set forth in the Greenbaum and Acosta Opposition,
and as discussed herein, the Stay Motion should be denied and the Court should enter the
Stipulation and Proposed Order.
WHEREFORE, the Heisers respectfully request that the Court:
(i) Deny the Stay Motion;
(ii) Grant the Stipulation and Proposed Order; and
(iii) Grant such other and further relief as the Court deems just and proper.
Dated: June 26, 2012
San Francisco, California
Respectfully submitted,
/S/ FRANK T. PEPLER
FRANK PEPLER
DLA PIPER LLP (US)
555 MISSION STREET, SUITE 2400
SAN FRANCISCO, CA 94105-2933
TEL: 415.836.2500
FAX: 415.836.2501
and
DALE K. CATHELL (Admitted Pro Hae Vice)
DAVID B. MISLER (Admitted Pro Hae Vice)
DLA PIPER LLP (US)
6225 SMITH A VENUE
BALTIMORE, MD 21209
TEL: 410.580.3000
FAX: 410-580.3001
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EAST\48855259.2 NOTICE OF JOINDER THIRD-PARTY DEFS THE ESTATE OF MICHAEL HEISER TO THE
GREENBAUM AND ACOSTA JUDGMENT CREDITORS' MEMORANDUM OF LAW IN OPPOSITION
TO BANK MELLI'S MOTION FOR STAY OF DISTRIBUTION
Annex 317
Case 3:11-cv-05807-CRB Document 107 Filed 06/26/12 Page 1 of 4
JANE CAROL NORMAN (California Bar. No. 66998)
BOND & NORMAN
777 6th St. NW #410
Washington, DC 20001
(202) 423-3863
Fax: (202) 207-1041
Attorneys for Michael Bennett, et. al.
MICHAEL BENNETT et al.
Plaintiffs
V.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CASE NO. CV-11-5807 (CRB)
PLAINTIFF MICHAEL BENNETT, ET AL.'S
RESPONSE IN OPPOSITION TO BANK
MELLI'S MOTION FOR STAY OF
DISTRIBUTION
ISLAMIC REPUBLIC OF IRAN, et. al.
Defendants
VISA INC., and FRANKLIN
RESOURCES, INC.,
Third-Party Plaintiffs
v.
BANK MELLI, et. al.
Third-Party Defendants
Plaintiffs Michael and Linda Bennett, et al, individually and on behalf of the Estate of
Marla Bennett, ("Bennett Plaintiffs") by and through their undersigned counsel, hereby
respond in Opposition to Bank Melli's Motion for Stay of Distribution, and in connection
therewith state as follows:
1
Annex 317
Case 3:11-cv-05807-CRB Document 107 Filed 06/26/12 Page 2 of 4
Background
1. The Bennett plaintiffs are California residents. They obtained a judgment against the
Islamic Republic of Iran ("Iran") and the Iranian Ministry of Intelligence and Security
("MOIS) in the amount of $12,904,548.00 on August 30, 2007 in the United States
District Court for the District of Columbia. (Civ. Action No. 03-1486 RCL)
2. Plaintiffs are still owed that entire amount plus interest that has accrued at the legal
rate.
3. The Bennett plaintiffs' action arose from the July 31, 2002 bombing of the cafeteria at
the Frank Sinatra Building on the campus of Hebrew University in Jerusalem. Their
daughter Marla who was studying there for the summer was killed in the bombing.
Her face was blown off. She suffered horribly before she died. The bombing was
orchestrated and carried out by Hezbollah.
4. The judge in the District of Columbia found, after a full trial, that the defendants
Iran and MOIS had provided material support and assistance to Hezbollah and
entered judgment against them.
5. On June 11, 2012 the Estate of Michael Heiser, et al. (the Heisers), the Greenbaum
and Acosta Judgment Creditors, the Bennett Plaintiffs, Visa, Inc, and Franklin
Resources, Inc. entered into an agreement to turnover blocked Iranian assets which
had been deposited into the Court's registry by Visa, Inc. and Franklin Resources, Inc.
(Dkt. No. 95)
6. On June 12, 2012 Bank Melli filed a Motion for Stay of Distribution. (Dkt. No. 98)
2
Annex 317
Case 3:11-cv-05807-CRB Document 107 Filed 06/26/12 Page 3 of 4
7. On June 18, 2012 the Greenbaum and Acosta Judgment Creditors filed a
Memorandum of Law in Opposition to Bank Melli's Motion for Stay of Distribution.
(0kt. No. 103)
8. The Bennett Plaintiffs hereby oppose Bank Melli's Opposition to the proposed
distribution by an entity that is one and the same as Iran and responsible for the murder
of their daughter.
Argument
I. The Bennett Plaintiffs Join and Adopt the Arguments of the Greenbaum and Acosta
Judgment Creditors
9. The Bennett Plaintiffs hereby join and adopt all of the arguments set forth in the
Greenbaum and Acosta Opposition, which is incorporated be reference herein.
II. Bank Melli is publicly owned, controlled and administered by Iran
10. Article 44 of the Iranian Constitution specifically states that its banks are state
owned, administered and therefore controlled by Iran. The pertinent text of that portion of
the Iranian constitution is as follows:
Article 44
The economy of the Islamic Republic of Iran is to consist of three sectors: state,
cooperative, and private, and is to be based on systematic and sound planning. The
state sector is to include all large-scale and mother industries, foreign trade, major
minerals, banking, insurance, power generation, dams and large-scale irrigation
networks, radio and television, post, telegraph and telephone services, aviation,
shipping, roads, railroads and the like; all these will be publicly owned and
administered by the State. The cooperative sector is to include cooperative companies
and enterprises concerned with production and distribution, in urban and rural areas, in
accordance with Islamic criteria. The private sector consists of those activities concerned
with agriculture, animal husbandry, industry, trade, and services that supplement the
economic activities of the state and cooperative sectors. Ownership in each of these three
3
Annex 317
Case 3:11-cv-05807-CRB Document 107 Filed 06/26/12 Page 4 of 4
sectors is protected by the laws of the Islamic Republic, in so far as this ownership is in
conformity with the other articles of this chapter, does not go beyond the bounds of Islamic
law, contributes to the economic growth and progress of the country, and does not harm
society. The [precise] scope of each of these sectors, as well as the regulations and
conditions governing their operation, will be specified by law. (Emphasis added)
There simply can be no good faith argument that Bank Melli is a separate entity from
that of Iran itself.
WHEREFORE, the Bennett Plaintiffs respectfully request that the Court:
1. Deny Bank Melli's Motion to Stay Distribution;
2. Grant the Stipulation and Proposed Order for Turnover of Assets;
3. Grant such other relief as the Court deems just and proper.
Respectfully Submitted,
/s/Jane Carol Norman
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 26th day of June, 2012, a copy of the foregoing was sent
via electronic means to all counsel of record.
/s/Jane Carol Norman
4
Annex 317
ANNEX318

Bennett et al v. The Islamic Republic of Iran et al
1 MOLO LAMKEN LLP
JEFFREY A. LAMKEN (CA Bar# 154217)
2 The Watergate, Suite 660
600 New Hampshire Ave.
3 Washington, D.C. 20037
Telephone: (202) 556-2000
4 Facsimile: (202) 556-2001
5
6 Counsel for Third-Party Defendant
BANK MELLI
7
8
9
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
MICHAEL BENNETT, et al.,
Plaintiffs,
V.
Case No. CV 11-5807 (CRB) (NN)
STIPULATION AND rrnOPOilEDj
ORDER VACATING DEFAULT
Doc. 109
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ISLAMIC REPUBLIC OF IRAN,
et al.,
Before the Honorable Charles R. Breyer
and Nandor J. Vadas
Defendants.
VISA INC. and
FRANKLIN RESOURCES, INC.,
Third-Party Plaintiffs,
V.
BANK MELLI, et al.,
Third-Party Defendants.
STIPULATION AND [PROPOSED] ORDER
Annex 318
1 Third-Party Defendant Bank Melli, Defendants and Third-Party Plaintiffs
2 Visa Inc. and Franklin Resources, Inc. ("Visa" and "Franklin"), Plaintiffs Michael
3 Bennett et al. (the "Bennett Plaintiffs"), Third-Party Defendants Steven Green-
4 baum and Carlos Acosta et al. (the "Greenbaum/Acosta Judgment Creditors"), and
5 Third-Party Defendants Estate of Michael Heiser et al. ( the "Heiser Judgment
6 Creditors"), by and through their undersigned counsel, hereby consent and stipu-
7 late to the entry of this Order, and the Court concludes that good cause has been
8 shown for the entry thereof:
9 1. Bank Melli's motion to set aside the default (Doc. No. 104) is hereby
10 GRANTED. The Clerk's entry of default (Doc. No. 79) is hereby VACATED.
11 2. The vacating of the Clerk's entry of default does not constitute a con-
12 sent or agreement to any of the arguments or defenses raised by Bank
13 Melli opposing the right of the Bennett Plaintiffs, the Greenbaum/ Acosta Judgment
14 Creditors, and the Heiser Judgment Creditors to a turnover of the assets deposited
15 into the Court's registry by Visa and Franklin.
16 3. Bank Melli hereby waives its objections to service of the summons
17 and third-party complaint (Doc. Nos. 16, 45), reserving all other jurisdictional,
18 immunity, and other defenses and objections.
19 4. The Stipulation with Proposed Order Awarding Turnover of Blocked
20 Assets, Discharge of Stakeholders and Entry of Final Judgment (Doc. No. 95) and
21 Bank Melli's Motion to Stay Distribution (Doc. No. 98) are hereby WITH-
22 DRAWN without prejudice.
23
24
25
26
27
28
2
STIPULATION AND [PROPOSED] ORDER Annex 318
IT IS SO ORDERED
1 5. Bank Melli shall move against or answer the Third-Party Complaint
2 within 30 days of the entry of this Order.
3
4 PURSUANT TO STIPULATION, IT IS SO ORDERED.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dated: July 5, 2012
San Francisco, California
3
STIPULATION AND [PROPOSED] ORDER Annex 318

ANNEX319

Case: 13-15442, 01/07/2014, ID: 8928409, DktEntry: 46, Page 1 of 2
FILED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAN 7 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL BENNETT; et al.,
Plaintiffs - Appellees,
V.
THE ISLAMIC REPUBLIC OF IRAN,
Defendant,
V.
VISA INC.; et al.,
Defendants-third-partyplaintiffs
- Appellees,
V.
GREENBERG AND ACOSTA,
Plaintiff-third-partydefendant
- Appellee,
HEISER JUDGMENT CREDITORS,
Plaintiff-fourth-partydefendant
- Appellee,
v.,
BANK MELLI,
Plaintiff-third-partydefendant
- Appellant.
Nos. 13-15442
13-16100
D.C. No. 3:11-cv-05807-CRB
Northern District of California,
San Francisco
ORDER
Annex 319
Case: 13-15442, 01/07/2014, ID: 8928409, DktEntry: 46, Page 2 of 2
Appellant's motion for leave to file an over length brief is granted in part.
Appellant is granted leave to file a brief not to exceed 8,400 words. 9th Cir. R.
28-4. If appellant seeks leave to file a brief lengthier than 8,400 words, appellant
must file a renewed motion accompanied by the proposed brief. 9th Cir. R. 32-2.
The reply brief remains due January 21, 2014.
FOR THE COURT:
MOLLY C. DWYER
CLERK OF COURT
Cole Benson
Supervising Deputy Clerk
Ninth Circuit Rules 27-7 and 27-10
Annex 319
Case: 13-15442, 11/30/2015, ID: 9773041, DktEntry: 87, Page 1 of 2
FILED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOV 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL BENNETT; et al.,
Plaintiffs - Appellees,
V.
THE ISLAMIC REPUBLIC OF IRAN,
Defendant,
v.
VISA INC.; et al.,
Defendants-third-partyplaintiffs
- Appellees,
V.
GREENBERG AND ACOSTA
illDGEMENT CREDITORS AND
HEISER JUDGMENT CREDITORS,
Third-party-defendants -
Appellees,
and
BANK MELLI,
Third-party-defendant -
Appellant.
Nos. 13-15442, 13-16100
D.C. No. 3:11-cv-05807-CRB
Northern District of California,
San Francisco
ORDER
Annex 319
Case: 13-15442, 11/30/2015, ID: 9773041, DktEntry: 87, Page 2 of 2
Before: THOMAS, Chief Judge, GRABER, Circuit Judge and BENSON,* Senior
District Judge.
Bank Melli's motion for leave to file a reply is GRANTED. The reply
submitted on November 27, 2015 shall be filed.
* The Honorable Dee V. Benson, Senior District Judge for the U.S.
District Court for the District of Utah, sitting by designation.
Annex 319
General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket#: 13-15442
Nature of Suit: 4360 Other Personal Injury
Michael Bennett, et al v. Bank Melli
Appeal From: U.S. District Court for Northern California, San Francisco
Fee Status: Paid
Case Type Information:
1) civil
2) private
3) null
Originating Court Information:
District: 0971-3 : 3: 11-cv-05807-CRB
Court Reporter: Connie McCarthy Kuhl
Court Reporter: Debra Pas, Official Court Reporter
Trial Judge: Charles R. Breyer, Senior District Judge
Date Filed: 12/02/2011
Date Order/Judgment: Date Order/Judgment EOD: Date NOA Filed:
02/28/2013 02/28/2013
Prior Cases:
None
Current Cases:
Lead Member
Consolidated
13-15442 13-16100
MICHAEL BENNETT
Plaintiff - Appel lee,
03/11/2013
Start End
08/02/2013
Thomas Fortune Fay, Esquire, Attorney
Direct: 202-589-1300
[COR NTC Retained]
FAY KAPLAN LAW, PA
777 Sixth Street, NW
Suite 410
Washington, DC 20001
Jane Carol Norman, Esquire
[COR NTC Retained]
Bond & Norman PLLC
Firm: 202-423-3863
777 6th Street NW
Washington, DC 20001
LINDA BENNETT, as Co-Administrators of the Estate of Maria Ann Thomas Fortune Fay, Esquire, Attorney
Bennett Direct: 202-589-1300
Plaintiff - Appel lee, [COR NTC Retained]
(see above)
V.
THE ISLAMIC REPUBLIC OF IRAN
Defendant,
V.
VISA INC.
Defendant-third-party-plaintiff - Appellee,
Jane Carol Norman, Esquire
[COR NTC Retained]
(see above)
Bruce H. Jackson, Esquire, Attorney
Direct: 415-576-3000
[COR NTC Retained]
Baker & McKenzie LLP
11th Floor
Two Embarcadero Center
Docketed: 03/12/2013
Termed: 02/22/2016
Date Rec'd COA:
03/11/2013
Annex 319
FRANKLIN RESOURCES, INC.
Defendant-third-party-plaintiff - Appellee,
V.
GREENBERG AND ACOSTA JUDGEMENT CREDITORS
Plaintiff-third-party-defendant - Appellee,
HEISER JUDGMENT CREDITORS
Plaintiff-fourth-party-defendant - Appellee,
BANK MELLI
Plaintiff-third-party-defendant - Appellant,
UNITED STATES OF AMERICA
Amicus Curiae,
San Francisco, CA 94111-3909
Benjamin T. Peele, Ill
Direct: 202-452-7035
[COR NTC Retained]
Baker & McKenzie LLP
815 Connecticut Aveune, N.W.
Washington, DC 20006
Bruce H. Jackson, Esquire, Attorney
Direct: 415-576-3000
[COR NTC Retained]
(see above)
Benjamin T. Peele, Ill
Direct: 202-452-7035
[COR NTC Retained]
(see above)
Curtis Campbell Mechling
Direct: 212-806-5609
[COR LD NTC Retained]
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038-4982
Dale K. Cathell
[COR NTC Retained]
DLA PIPER US, LLP
6225 Smith Avenue
Baltimore, MD 21209-3600
David B. Misler
Direct: 410-580-3000
[COR NTC Retained]
DLA PIPER US, LLP
6225 Smith Avenue
Baltimore, MD 21209-3600
Frank T. Pepler
[COR NTC Retained]
DLA Piper LLP (US)
555 Mission Street
San Francisco, CA 94105
Jeffrey A. Lamken
Direct: 202-556-2010
[COR LD NTC Retained]
MoloLamken LLP
600 New Hampshire Avenue, N.W.
Suite 500
Washington, DC 20037
Robert Kelsey Kry
Direct: 202-556-2010
[COR NTC Retained]
MoloLamken LLP
600 New Hampshire Avenue, N.W.
Suite 500
Washington, DC 20037
Benjamin M. Shultz, Attorney
[COR LD NTC Assist US Attorney]
DOJ - U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530 -~ ----------------------------:,,tnrrex-3-t-H---~•
MICHAEL BENNETT; LINDA BENNETT, as Co-Administrators of the Estate of Maria Ann Bennett,
Plaintiffs - Appellees,
V.
THE ISLAMIC REPUBLIC OF IRAN,
Defendant,
V.
VISA INC.; FRANKLIN RESOURCES, INC.,
Defendants-third-party-plaintiffs - Appellees,
V.
GREENBERG AND ACOSTA JUDGEMENT CREDITORS,
Plaintiff-third-party-defendant - Appellee,
HEISER JUDGMENT CREDITORS,
Plaintiff-fourth-party-defendant - Appellee,
V,
BANK MELLI,
Plaintiff-third-party-defendant - Appellant.
Annex 319
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15 pg, 590.78 KB
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6 pg, 109.51 KB
04/12/2013 D i
1 pg, 333. 72 KB
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1 pg, 333.55 KB
04/12/2013 D 5
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27 pg, 199.01 KB
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DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is
set as follows: Mediation Questionnaire due on 03/19/2013. Transcript ordered by 04/10/2013. Transcript
due 05/10/2013. Appellant Bank Melli opening brief due 06/19/2013. Appellees Linda Bennett, Michael
Bennett, Franklin Resources, Inc., Greenberg and Acosta Judgement Creditors, Heiser Judgment
Creditors and VISA Inc. answering brief due 07/19/2013. Appellant's optional reply brief is due 14 days
after service of the answering brief. [8546419] (GR) [Entered: 03/12/2013 08:48 AM]
Filed (ECF) Appellant Bank Melli Mediation Questionnaire. Date of service: 03/19/2013. [8556240]
(Lamken, Jeffrey) [Entered: 03/19/201311:34 AM]
Filed (ECF) notice of appearance of Curtis Campbell Mechling for Appellee Greenberg and Acosta
Judgement Creditors. Date of service: 04/12/2013. [8588133] (Mechling, Curtis) [Entered: 04/12/2013
11 :51 AM]
Filed (ECF) notice of appearance of Benjamin Weathers-Lowin for Appellee Greenberg and Acosta
Judgement Creditors. Date of service: 04/12/2013. [8588134] (Weathers-Lowin, Benjamin) [Entered:
04/12/201311:51 AM]
Added attorney Benjamin Weathers-Lowin, Curtis Campbell Mechling for Greenberg and Acosta
Judgement Creditors, in case 13-15442. [8588332] (JFF) [Entered: 04/12/2013 01: 14 PM]
Filed (ECF) Appellees Linda Bennett, Michael Bennett, Greenberg and Acosta Judgement Creditors and
Heiser Judgment Creditors Motion to dismiss the case. Date of service: 04/12/2013. [8588543] (Mechling,
Curtis) [Entered: 04/12/2013 02:19 PM]
Filed (ECF) Appellant Bank Melli response opposing motion (,motion to dismiss the case). Date of service:
04/25/2013. [8604193] (Lamken, Jeffrey) [Entered: 04/25/2013 09:37 AM]
Filed (ECF) Appellees Linda Bennett, Michael Bennett, Greenberg and Acosta Judgement Creditors and
Heiser Judgment Creditors reply to response (,motion to dismiss the case,). Date of service: 05/06/2013.
[8617723] (Mechling, Curtis) [Entered: 05/06/2013 02:43 PM]
Filed (ECF) notice of appearance of Robert K. Kry for Appellant Bank Melli. Date of service: 05/13/2013.
[8625691] (Kry, Robert) [Entered: 05/13/2013 09:44 AM]
Added attorney Robert Kelsey Kry for Bank Melli, in case 13-15442. [8625704] (JFF) [Entered: 05/13/2013
09:48AM]
Filed clerk order (Deputy Clerk: SJ): On May 30, 2013, this court granted appellant's petition for
permission to appeal in No. 13-80057 pursuant to 28 U.S.C. § 1292(b). The newly opened appeal is No.
13-16100. It appears that the issues raised in appeal No. 13-16100 may be identical to those raised in this
appeal. Within 21 days after the date of this order, appellant shall move for voluntary dismissal of this
appeal or show cause why it should not be dismissed as duplicative of appeal No. 13-16100. If appellant
elects to show cause, appellees may respond within 10 days after service of appellant's memorandum.
Failure to comply with this order shall result in the automatic dismissal of this petition for review by the
Clerk for failure to prosecute. See 9th Cir. R. 42-1. If necessary, the court will set a briefing schedule upon
disposition of this order to show cause. [8672073] (WL) [Entered: 06/18/2013 01 :30 PM]
Filed (ECF) Appellant Bank Melli Unopposed Motion to consolidate cases 13-15442 & 13-16100. Date of
service: 07/09/2013. [8696868] (Lamken, Jeffrey) [Entered: 07/09/2013 04:01 PM]
Case rejected from Circuit Mediation Program. [8699732] (LW) [Entered: 07/11/2013 11 :56 AM]
Filed order (Appellate Commissioner): Appellant Bank Melli's unopposed motion to consolidate appeal
Nos. 13-15442 and 13-16100 is granted. Appellees' opposed motion to dismiss appeal No. 13-15442 is
denied without prejudice to renewing the argument in the answering brief. The order to show cause,
issued on June 18, 2013, in appeal No. 13-15442 is discharged. The briefing schedule previously
established in appeal No. 13-16100 shall govern these consolidated appeals. (MOATT) [8727648] [13-
15442, 13-16100] (WL) [Entered: 08/02/2013 07:20 AM]
Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellant Bank Melli in 13-
16100, 13-15442. New requested due date is 10/09/2013 at 11 :59 pm. [8753916] [13-16100, 13-15442]
(Lamken, Jeffrey) [Entered: 08/23/2013 09:45 AM]
Streamlined request [15] by Appellant Bank Melli in 13-16100, 13-15442 to extend time to file the
brief is approved. Amended briefing schedule: Appellant Bank Melli opening brief due 10/09/2013.
Appellees Linda Bennett, Michael Bennett, Franklin Resources, Inc., Greenberg and Acosta
Judgement Creditors, Heiser Judgment Creditors and VISA Inc. answering brief due 11/08/2013.
The optional reply brief is due 14 days from the date of service of the answering brief. [8753937]
[13-16100, 13-15442] (LN) [Entered: 08/23/2013 09:57 AM]
Filed (ECF) notice of appearance of Lucas M. Walker for Appellant Bank Melli in 13-15442, 13-16100.
Date of service: 10/09/2013. [8816521] [13-15442, 13-16100] (Walker, Lucas) [Entered: 10/09/2013 08:00
PM]
Annex 319
ANNEX320

Case 1:03-cv-01486-RCL Document 34 Filed 07/18/08 Page 1 of 23
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL BENNETT
and
LINDA BENNETT,
Individually and as Co-Administrators of
The Estate of MARLA ANN BENNETT
Plaintiffs,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 03-1486 (RCL)
V.
THE ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
UNITED STATES' MOTION TO QUASH PLAINTIFFS' WRITS OF ATTACHMENT
The United States respectfully moves to quash in their entirety five writs of attachment
issued by the Clerk of this Court on April 1, 2008. These writs attach properties of the
government of Iran that are used for diplomatic purposes. The properties were used by Iran as
office and residential space for the Iranian diplomatic mission to the United States until the
United States severed diplomatic relations with Iran in 1980. These properties have since been
held in the protective custody of the United States pursuant to its international obligations under
the Vienna Convention on Diplomatic Relations. They are immune from attachment under the
laws of the United States.
Support for this motion is found in the accompanying memorandum and exhibits.
Respectfully submitted this 18th day of July, 2008.
GREGORY G. KATSAS
Annex 320
Case 1:03-cv-01486-RCL Document 34 Filed 07/18/08 Page 2 of 23
2
Assistant Attorney General
JEFFREY A. TAYLOR
United States Attorney
JOSEPH H. HUNT
Director, Federal Programs Branch
VINCENT M. GARVEY
Deputy Director, Federal Programs Branch
Isl Varu Chilakamarri
V ARU CHILAKAMARRI (NY Bar)
Trial Attorney, Federal Programs Branch
U.S. Department of Justice, Civil Division
Tel: (202) 616-8489
Fax: (202) 616-8470
[email protected]
Courier Address:
20 Massachusetts Ave., NW, Rm. 7226
Washington, D.C. 20530
Counsel for the United States of America
Annex 320
Case 1:03-cv-01486-RCL Document 34 Filed 07/18/08 Page 3 of 23
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL BENNETT
and
LINDA BENNETT,
Individually and as Co-Administrators of
The Estate of MARLA ANN BENNETT
Plaintiffs,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 03-1486 (RCL)
V.
THE ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
MEMORANDUM IN SUPPORT OF UNITED STATES'
MOTION TO QUASH WRITS OF ATTACHMENT
INTRODUCTION
Plaintiffs brought suit against Iran and the Iranian Ministry of Intelligence and Security in
the United States District Court for the District of Columbia for a terrorist act by Barnas resulting
in the death of their daughter. This Court entered a default judgment in the amount of
$12,904,548. Plaintiffs have now served writs of attachment on Iranian diplomatic properties
situated in the District of Columbia in an effort to satisfy their judgment. 1
The United States has the deepest sympathy for the suffering experienced by the
plaintiffs and abhors the actions which gave rise to their judgment. However, attachment of the
1 On March 26, 2008, after filing their Motion for Order to Issue Writs of Attachment
and accompanying memoranda, plaintiffs filed a Withdrawal of their Motion for an Order to
Issue Writs of Attachment. See Doc. No. 26. Subsequently, however, the writs were issued by
this Court, and the plaintiffs appear to be pursuing the attachment of these properties, as they
filed executed returns of these writs. See Doc. Nos. 27-31.
3
Annex 320
Case 1:03-cv-01486-RCL Document 34 Filed 07/18/08 Page 4 of 23
properties targeted by plaintiffs' writs is not permitted under the laws of the United States and
would have the effect of placing the United States in violation of its international obligations.
Indeed, similarly situated plaintiffs previously have sought to attach the exact properties at issue
here, and this Court has repeatedly determined that these properties are immune from
attachment. 2 The same conclusion should be reached in this case. As a result, the United States
hereby respectfully requests that the plaintiffs' writs of attachment be quashed in their entirety. 3
LEGAL AND FACTUAL BACKGROUND
A. International Treaty and Statutory Obligations Regarding Diplomatic Property
The United States has entered into treaties and international agreements that establish its
obligation to protect diplomatic property against interference. Foremost among those treaties is
the Vienna Convention on Diplomatic Relations ("Vienna Convention"), which establishes that
the "premises of a foreign mission shall be inviolable," "immune from search, requisition,
attachment or execution," and that "[t]he receiving State is under a special duty to take all
appropriate steps to protect the premises of the mission." Article 22 of the Vienna Convention,
23 U.S.T. 3227 (1972), T.I.A.S. No. 7502. The residence of a diplomat enjoys the same
protection as the premises of the mission. Vienna Convention, Article 30(1). Further, the
Vienna Convention requires the host country to take steps to protect the property of diplomatic
2 See, e.g., Mousa v. Islamic Republic oflran, No. 00-2096 (D.D.C. Nov. 5, 2003); Elahi
v. Islamic Republic oflran, No. 99-02802 (D.D.C. July 22, 2003); Flatow v. Islamic Republic of
Iran, 76 F. Supp. 2d 16 (1999).
3 The United States appears in this action pursuant to 28 U.S.C. § 517, which authorizes
the Attorney General of the United States to send any officer of the Department of Justice to
"attend to the interests of the United States in a suit pending in a court of the United States, or in
the courts of a State, or to attend to any other interest of the United States." See also infra at 10-
12.
4
Annex 320
Case 1:03-cv-01486-RCL Document 34 Filed 07/18/08 Page 5 of 23
missions even under exceptional circumstances. For example, under Article 45(a) of the Vienna
Convention, if diplomatic relations are broken or if a mission is permanently or temporarily
recalled, the receiving state "must even in the case of armed conflict, respect and protect the
premises of the mission, together with its property and archives."
The Foreign Missions Act, 22 U.S.C. §§ 4301, et seq., provides that the Department of
State, Office of Foreign Missions ("OFM") is to protect the property of foreign missions in
various circumstances. The Foreign Missions Act authorizes OFM to "protect and preserve any
property of [a] foreign mission" if that mission has ceased conducting diplomatic, consular and
other governmental activities and has not designated a protecting power ( or other agent)
approved by the Secretary to be responsible for the property of that foreign mission. Id.
§ 4305(c). The Foreign Missions Act also prohibits the attachment of or execution upon such
mission property being held by the Department of State. Specifically, 22 U.S.C. § 4308(±)
provides that:
Assets of or under the control of the Department of State, wherever situated,
which are used by or held for the use of a foreign mission shall not be subject to
attachment, execution, injunction, or similar process, whether intermediate or
final.
Id. (emphasis added); see also 28 U.S.C. § 1609 (generally prohibiting the attachment of a
foreign state's property, subject to the existing international agreements to which the United
States is a party).
B. Legislation Governing the Attachment of Foreign Property in the United States
As relevant in this case, two statutes provide the means of attaching foreign property in
the United States: the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602, et seq.,
5
Annex 320
Case 1:03-cv-01486-RCL Document 34 Filed 07/18/08 Page 6 of 23
and the Terrorism Risk Insurance Act ("TRIA"), Pub. L. No. 107-297, Title II, § 201 (Nov. 26,
2002), codified at 28 U.S.C. § 1610 note.
In pertinent part, the Foreign Sovereign Immunities Act ("FSIA") provides that "the
property in the United States of a foreign state shall be immune from attachment[,] arrest and
execution except as provided in section[] 1610 ... of this chapter." 28 U.S.C. § 1609. In turn,
section 1610 provides various exceptions to the immunity from attachment. Section 1610(a)(7)
provides that the property of a foreign state is not immune from attachment where it has been
"used for a commercial activity in the United States" and "the judgment relates to a claim for
which the foreign state is not immune under [28 U.S.C. §] 1605A."4 Id. § 1610(a)(7). Section
1610(f) of the FSIA also states that certain foreign property shall be subject to attachment in aid
of execution of a judgment for which the foreign state "is not immune under section 1605( a )(7)
(as in effect before the enactment of section 1605A) or section 1605A." Id.§ 1610(f)(l)(A).5
4 The FSIA was recently amended by section 1083 of the National Defense Authorization
Act for Fiscal Year 2008, P.L. 110-181 (January 28, 2008); 122 Stat. 3. The amendments
repealed section 1605(a)(7) of the FSIA, which had provided an exception to a foreign state's
jurisdictional immunity for actions against designated state sponsors of terrorism for personal
injury or death. The amendments created a new FSIA section, section 1605A which, inter alia,
reasserts the exception (previously codified at 28 U.S.C. § 1605(a)(7)) to jurisdictional immunity
for actions against designated state sponsors of terrorism, and creates a federal cause of action
against foreign states for such actions. See P.L. 110-181 § 1083(a), (c); 28 U.S.C. § 1605A(a),
( c ). The amendments also provide a framework and a 60-day statutory deadline for converting
pre-existing actions brought under section 1605(a)(7) into actions under new section 1605A. See
P.L. 110-181, Div. A., Title X § 1083(c); 28 U.S.C. § 1605A note. Furthermore, the
amendments added a new section 1610(g), which is applicable to actions brought under new
section 1605A. Section 1610(g) will be discussed in more detail below.
5 Specifically, section 1610(f)(l)(A) states:
Notwithstanding any other provision oflaw, including but not limited to section 208(f) of
the Foreign Missions Act (22 U.S.C. 4308(f)), and except as provided in subparagraph
(B), any property with respect to which financial transactions are prohibited or regulated
pursuant to section 5(b) of the Trading with the Enemy Act (50 U.S.C. App. 5(b)),
6
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However, section 1610(±)(3) provides the President authority to waive section 1610(±)(1) in the
interest of national security, and the President acted on this authority by waiving section
1610(±)(1) in its entirety. See Pres. Determination No 2001-03, 65 Fed. Reg. 66483 (2000).
In addition to the FSIA exceptions noted above, section 201 of TRIA provides for the
"[ s ]atisfaction of judgments from blocked assets of terrorists, terrorist organizations, and State
sponsors of terrorism." Subsection (a) of this section specifically provides as follows:
Notwithstanding any other provision of law, and except as provided in subsection
(b ), in every case in which a person has obtained a judgment against a terrorist
party on a claim based upon an act of terrorism, or for which a terrorist party is
not immune under section 1605( a )(7) of title 28, United States Code, the blocked
assets of that terrorist party (including the blocked assets of any agency or
instrumentality of that terrorist party) shall be subject to execution or attachment
in aid of execution in order to satisfy such judgment to the extent of any
compensatory damages for which such terrorist party has been adjudged liable.
See Section 201(a) (emphasis added). The Section further defines the term "blocked assets" as:
(A) any asset seized or frozen by the United States under section 5(b) of the
Trading With the Enemy Act (50 U.S.C. App. 5(b)) or under sections 202 and 203
of the International Emergency Economic Powers Act (50 U.S.C. 1701; 1702);
and
(B) does not include property that-- ...
(ii) in the case of property subject to the Vienna Convention on
Diplomatic Relations or the Vienna Convention on Consular Relations, or
that enjoys equivalent privileges and immunities under the law of the
section 620(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2370(a)), sections 202
and 203 of the International Emergency Economic Powers Act (50 U.S.C. 1701-1702), or
any other proclamation, order, regulation, or license issued pursuant thereto, shall be
subject to execution or attachment in aid of execution of any judgment relating to a claim
for which a foreign state (including any agency or instrumentality or such state) claiming
such property is not immune under section 1605(a)(7) (as in effect before the enactment
of section 1605A) or section 1605A.
7
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United States, 1s being used exclusively for diplomatic or consular
purposes.
Section 201(d)(2). Finally, the section provides the following definition with respect to
diplomatic and consular property:
(3) CERTAIN PROPERTY. The term "property subject to the Vienna
Convention on Diplomatic Relations or the Vienna Convention on Consular
Relations" and the term "asset subject to the Vienna Convention on Diplomatic
Relations or the Vienna Convention on Consular Relations" means any property
or asset, respectively, the attachment in aid of execution or execution of which
would result in a violation of an obligation of the United States under the Vienna
Convention on Diplomatic Relations or the Vienna Convention on Consular
Relations, as the case may be.
Section 201(d)(3).
As a result of Section 201( d)(2)(B)(ii)'s exclusion from "blocked assets," any property
subject to the Vienna Conventions on Diplomatic and Consular Relations that "is being used
exclusively for diplomatic and consular purposes," property that is used exclusively for
diplomatic purposes is not subject to TRIA.
C. Iranian Diplomatic Real Properties
The writs of attachment filed by plaintiffs implicate five parcels of real property that are
associated with the former mission of the government of Iran and that are currently under the
control of the Department of State. 6 See Declaration of Claude J. Nebel, Deputy Assistant
Secretary of the Office of Foreign Missions, United States Department of State ("Nebel Deel."),
attached hereto as Exhibit 1, ,-i,-i 14-19. These particular diplomatic properties were blocked on
November 14, 1979 by Executive Order 12170, in response to the taking of the U.S. Embassy
6 The properties are located at: (1) 3003 Massachusetts Avenue, NW; (2) 3005
Massachusetts Avenue, NW; (3) 3410 Garfield Street, NW; (4) Lot 8, Square 2145, NW; and (5)
Lot 0820, Square 2145, NW.
8
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and hostages in Tehran. Id. ,-i,-i 5, 14-19. Iran was permitted to continue to occupy and use its
Embassy, consulates, and diplomatic residences until the United States severed diplomatic
relations with Iran on April 7, 1980. Id. ,-i 6. As a result of that action, the United States took
custody of all Iranian diplomatic and consular real properties. Id. ,-i 6.
On April 14, 1980, the Department of State approved Algeria as the protecting power for
Iranian interests in the United States. 7 Nebel Deel. ,-i 8. Because the United States and Iran were
unable to reach agreement concerning the return of each other's diplomatic and consular
property to the protecting power of the other state, the Department of State informed Algeria that
the United States would retain custody over the diplomatic and consular properties of Iran. Id. It
further informed Algeria that it would take all appropriate measures for the safety and protection
of such diplomatic and consular premises in the United States. Id. The diplomatic and consular
properties of Iran have remained in the custody of the Department of State since 1980, and
specifically of the Department of State's Office of Foreign Missions ("OFM"), since that office
was created in 1982. See id. ,-i 10. These properties have remained blocked pursuant to
Executive Order 12170. Id. ,-i,-i 5, 14-19.
By a diplomatic note tendered on March 10, 1983, the United States notified Algeria that
the United States would continue to respect and protect Iran's diplomatic and consular property
pursuant to Article 45 of the Vienna Convention on Diplomatic Relations, adopted Apr. 18,
1961, T.I.A.S. No. 7502, 23 U.S.T. 3227, and that it intended to rent some of the properties in
order to protect Iran's interest in these properties. See Nebel Deel. ,-i 11. The United States
7 Algeria is no longer the protecting power for Iranian interests. Pakistan now serves
that role. See Nebel Deel. 8.
9
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determined that rental of the properties would further its obligation to protect the properties by
keeping them occupied and generating a source of funds that could be used for the maintenance
of the properties. See id. Therefore, OFM has periodically leased all of the properties at issue
here at various times to private parties or to other foreign governments' missions. See id. ,-r,-r 15-
19. Currently, three of the properties at issue (located at 3003 Massachusetts Ave., 3005
Massachusetts Ave., and 3410 Garfield St.) are vacant while OFM makes needed repairs, seeks
new tenants, and explores other options for maintaining and preserving the properties. See id.
,-r,-r 15-17. The remaining two parcels ofland are lots that OFM periodically rents as parking lots
to other foreign missions. See id. ,-i,-i 18-19. All of the proceeds from OFM's rental of these five
properties that are not necessary for maintenance and repair of the properties are deposited in a
blocked Iranian diplomatic account, and are not used for any other purposes.8 Id. ,-i 12.
ARGUMENT
At the outset, the United States wishes to address plaintiffs' contention that the United
States does not have standing to assert the sovereign immunity of Iran as a bar to the attachment
of this property, implying that the United States cannot oppose the attachments at issue. See Pls.
Am. Supp. Mem. in Support of Mot. for Order to Issue Writs of Attachment on Judgment, at 7,
Rec. Doc. No 24.
8 Funds that had accrued in this account as of the date of enactment of the Victims of
Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, were paid to certain
individuals designated by Congress as eligible for payment. See Victims of Trafficking and
Violence Protection Act of 2000, Pub. L. No. 106-386, § 2002, 114 Stat. 1464, 1541-43, as
amended by the Terrorism Risk Insurance Act, of 2002, Pub. L. No. 107-297, § 201(d).
10
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The Attorney General of the United States has broad authority under 28 U.S.C. § 517, to
send any officer of the Department of Justice to "attend to the interests of the United States in a
suit pending in a court of the United States." Accordingly, by virtue of its interest in this matter,
the United States has the right to enter this action and seek the necessary relief.
Moreover, it has long been established that the United States has standing to assert and
protect its foreign policy interests, particularly as they relate to carrying out its obligations
pursuant to international treaties. See, e.g., Sanitary Dist. of Chicago v. United States, 266 U.S.
405, 425-426, (1925) (holding that the United States "has a standing in this suit not only to
remove obstruction to interstate and foreign commerce ... but also to carry out treaty obligations
to a foreign power .... The Attorney General by virtue of his office may bring this proceeding
and no statute is necessary to authorize the suit"); United States v. Arlington County. 669 F.2d
925, 928-929 (4th Cir. 1982) (holding that, where the United States filed a claim against the
county to void all property tax assessments against German diplomatic property, "[t]he United
States can sue to enforce its policies and laws, even when it has no pecuniary interest in the
controversy. This principle has been invoked to enable the United States to honor its treaty
obligations to a foreign state.") (internal citations omitted). Here, the United States moves to
quash the writs at issue because the United States has significant foreign policy interests in
ensuring that the statutory provisions governing foreign sovereign immunity are properly
interpreted and applied and that the United States complies with its obligations under the Vienna
Convention. This interest is heightened by the risk that U.S. property abroad will be subject to
reciprocal treatment.
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Pursuant to domestic law and international treaties, the properties at issue are currently
under the control of the Department of State, which has a legal duty and right to protect the
properties.9 See infra; 22 U.S.C. §§ 4305(c), 4308(f); 23 U.S.T. 3227; 21 U.S.T. 77. Thus, in
Rubin v. Islamic Republic oflran, 408 F. Supp. 2d 549 (N.D. Ill. 2005) (Mag. J. Ashman) --the
only authority which plaintiffs cite in support of their position -- the court recognized that the
United States is different from other third-parties, noting that "[t]he non-agent third party in
Flatow, however, was the U.S. Government itself, which had standing to assert FSIA defenses
because it took custody of and leased the Iranian properties in issue against Iran's wishes but
pursuant to the Foreign Missions Act, 22 U.S.C. § 4305(c)." Rubin, 408 F. Supp. 2d at 558; see
also Roeder v. Islamic Republic oflran, 195 F. Supp. 2d 140, 155 (D.D.C. 2002) ("Plaintiffs
then argue that the United States lacks a cognizable interest because Iran has waived all defenses
by refusing to appear in this court, and therefore the United States lacks standing to assert
defenses on behalf of Iran .... Plaintiffs consistently mischaracterize the nature of the interest
asserted by the United States. The United States is not seeking to vindicate Iran's interests, but
rather its own commitment under a binding international agreement, and its ever-present interest
in the enforcement of its laws.").
9 The Foreign Missions Act, 22 U.S.C. § 4311, states that "[t]he United States, acting on
its own behalf or on behalf of a foreign mission, has standing to bring or intervene in an action
to obtain compliance with this chapter, including any action for injunctive or other equitable
relief." 22 U.S.C. § 4311 (emphasis added). That chapter of the Foreign Mission Act includes
§ 4305 and § 4308, which provide that the Department of State shall protect and preserve
diplomatic property after the foreign sovereign has ceased conducting diplomatic, consular and
other governmental activities.
12
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The United States has properly moved to quash writs of attachment with respect to the
same properties in a number of instances, based on the significant interests of the United States
that are implicated by such writs. See infra Part C ( citing authorities). This case is no different.
As to their ability to attach the properties at issue, plaintiffs appear to argue that the
properties are subject to attachment because: (1) the recent amendments to the FSIA,
specifically section 161 0(g), create a new category of attachable foreign property which includes
the properties at issue here; (2) the properties are otherwise attachable under FSIA section 1610;
and (3) the properties are not being used for diplomatic purposes, and are therefore attachable
under TRIA. As set forth below, none of these avenues provides a supportable means of
attaching the properties, which are immune under the FSIA, the Foreign Missions Act, and by
virtue of the Vienna Convention.
A. Recently Added Section 1610(g) of the FSIA Does Not Permit Attachment of the
Properties at Issue
Plaintiffs argue that section 161 0(g) of the FSIA, which was recently added by the
National Defense Authorization Act for Fiscal Year 2008 ("NDAA"), P.L. 110-181, section 1083
(January 28, 2008), "created a new special category of terrorist state property open to
attachment," and that these changes "are specifically made applicable to pending cases by the
amendment to 28 U.S.C. § 1610(t)(l)(A)." Pl.'s Am. Supp. Mem., at 3. Section 1610(g)
provides, in relevant part:
(g) Property in certain actions.--
(1) In general.--Subject to paragraph (3), the property of a foreign state against
which a judgment is entered under section 1605A, and the property of an agency
or instrumentality of such a state, including property that is a separate juridical
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entity or is an interest held directly or indirectly in a separate juridical entity, is
subject to attachment in aid of execution, and execution, upon that judgment as
provided in this section, regardless of--
(A) the level of economic control over the property by the government of the
foreign state;
(B) whether the profits of the property go to that government;
(C) the degree to which officials of that government manage the property or
otherwise control its daily affairs;
(D) whether that government is the sole beneficiary in interest of the property; or
(E) whether establishing the property as a separate entity would entitle the foreign
state to benefits in United States courts while avoiding its obligations.
28 U.S.C.A. § 161 0(g) ( emphasis added). Section 161 0(g) does not provide for the attachment
of the properties at issue. Section 161 0(g) explicitly applies only to judgments "entered under
[28 U.S.C. §] 1605A." Plaintiffs' judgment was not and could not have been entered under
section 1605A, as section 1605A was enacted several months after plaintiffs' judgment was
issued. By its own terms, therefore, section 161 0(g) is clearly inapplicable to plaintiffs and their
judgment. '0
Nor could section 1610(g) be made applicable via section 1610(±)(1), as plaintiffs argue,
because the President acted on the authority provided by 1610(±)(3) by waiving section
1610(±)(1) in its entirety. See Pres. Determination No. 2001-03, 65 Fed. Reg. 66483 (2000) ("I
hereby waive subsection (f)(l) of section 1610 of title 28, United States Code, in the interest of
national security."). Further, plaintiffs' assertion that the NDAA amendments are somehow
made applicable to their case has been unequivocally rejected by the recent D.C. Circuit opinion
in Simon v. Republic oflrag, Nos. 06-7175, 06-7178, 2008 WL 2497417 (D.C. Cir., 2008),
10 Section 1083 of Public Law No. 110-81 provides for a 60-day time period for
converting pre-existing actions brought under section 1605(a)(7) into actions under section
1605A. See P.L. 110-181, Div. A., Title X § 1083(c); 28 U.S.C. § 1605A note. Plaintiffs have
not attempted to convert their judgment as one under section 1605A, and the time in which they
might have attempted to do so has elapsed.
14
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which held that the NDAA amendments do not apply to cases brought under 28 U.S.C.
§ 1605(a)(7):
[I]t is apparent that the 2008 amendments, including the "conforming
amendments" that strike former§ 1605(a)(7), see NDAA § 1083(b), do not apply
to any claim then "pending" under that provision .... [O]nly a plaintiff
prosecuting an action under new § 1605A of the FSIA can claim the benefits of
that section, such as prejudgment attachment of the defendant's property.
Id. at *4 & note. Accordingly, section 1610(g) does not permit attachment of the properties at
issue.
Even if plaintiffs had obtained a judgment "entered under section 1605A," section
161 0(g) does not provide for the attachment of the properties at issue, because 161 0(g) does not
create an independent exception to the immunity of foreign property. Rather, it simply clarifies
that when the property of a foreign state or its agency or instrumentality "is subject to attachment
... as provided in this section," such attachment cannot be defeated by application of the five socalled
"Bancec" factors, 11 which the courts have traditionally relied upon in determining whether
a foreign government has a sufficient beneficial interest in the property to be attached. Id.
( emphasis added). By excluding verbatim the five Bancec factors from consideration in an
attachment proceeding otherwise provided for under section 1610, Congress merely sought to
11 In First Nat 1 City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611
(1983) ("Bancec"), the Supreme Court explained that instrumentalities of a foreign state are
presumed to have separate juridical status, which can be overcome by a showing of a principalagent
relationship, or where such a separate status would work fraud or injustice. Id. at 629.
Several courts have distilled five factors from Bancec to be considered: "(1) the level of
economic control by the government; (2) whether the entity s profits go to the government; (3)
the degree to which government officials manage the entity or otherwise have a hand in its daily
affairs; (4) whether the government is the real beneficiary of the entity s conduct; and (5)
whether adherence to separate identities would entitle the foreign state to benefits in United
States courts while avoiding its obligations." Walter Fuller Aircraft Sales, Inc. v. Republic of
Philippines, 965 F.2d 1375, 1381 (5th Cir. 1992); see also Flatow v. Islamic Republic oflran,
308 F.3d 1065, 1070-71 & n. 9 (9th Cir. 2002) (same). These factors are recited in new section
1610(g)(l)(A) - (E).
15
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eliminate the application ofBancec. Unless the properties would be otherwise attachable under
Section 1610, which they are not, no attachment is permissible.
The legislative history of the NDAA amendments confirms that this section was designed
to allow attachment of foreign property notwithstanding the specific degree of control that the
foreign government has over such property, but that Congress continued to intend that diplomatic
properties be exempt from attachment. See H. Rept. 110-4 77, Conference Report to Accompany
H.R. 1585, NDAA, at 1001, attached hereto as Exhibit 2 (stating that the new amendments
permit "any property in which the foreign state has a beneficial ownership to be subject to
execution" but that "[t]he conferees intend that property used for purposes of maintaining a
diplomatic or consular mission or the residence of the Chief of Mission, which is not subject to
execution or attachment in aid of execution of a judgment, should not be subject to a lien of lis
pendens under this provision.") (emphasis added). Thus, this new subsection does not, as
plaintiffs contend, create an independent exception to the attachment of foreign property, and it
certainly does not provide for the attachment of foreign diplomatic property.
B. The Properties are Not Subject to Attachment Under Section 1610 of the FSIA
As section 161 0(g) does not apply to this case and does not provide an independent
means of attaching foreign property, the properties must fall within one of the other exceptions
under section 1610 in order to be attachable via the FSIA. Plaintiffs appear to allege that the
properties are attachable under sections 1610(a)(7) and 1610(£)(1). 12
In order to be attachable under section 1610(a)(7), the foreign property must be "used for
a commercial activity" in the United States. It is the foreign state's own activities, not those of
12 Plaintiffs concede that the exception created by section 161 0(b) is not applicable in
this case. Pls. Supp. Mem., at 7, Rec. Doc. No. 23. Further, the remaining exceptions under
section 1610 are not relevant here.
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the United States, that determine whether the particular property is "used for a commercial
activity" within the meaning of section 1610(a). See Flatow, 76 F. Supp. 2d at 23. As the
Supreme Court stated in discussing the waiver of jurisdictional immunity in the FSIA in
Republic of Argentina v. Weltover, 504 U.S. 607 (1992), actions are "commercial" within the
meaning of the FSIA "when a foreign government acts, not as regulator of a market, but in the
manner of a private player within it." Id. at 614 ( emphasis added). "[T]he issue is whether the
particular actions that the foreign state performs ... are the type of actions by which a private
party engages in 'trade and traffic or commerce[.]"' Id. (emphasis added). This interpretation
comports with the rationale behind the FSIA's exceptions to jurisdictional immunity and
attachment and execution immunity -- a foreign state should be found to have waived these
immunities only when it has taken some action outside the realm of sovereign actions and itself
acts as a private party.
Here, assuming arguendo that section 1610(a)(7) is available in this case, 13 the properties
at issue are not being "used for a commercial activity" by Iran, which has not possessed or used
the properties since diplomatic relations between the United States and Iran were severed in
1980. And, as this Court held in Flatow, the actions of the Department of State in connection
with any renovation and rental of the same diplomatic properties at issue in this case did not
constitute "commercial activity" by the foreign state so as to bring section 1610(a)(7) into play.
See 76 F. Supp. 2d at 22-24. Thus, these properties are not attachable via section 1610(a)(7).
Section 1610(f)(l) may have provided an alternate means for attachment of property, but
plaintiffs cannot rely on this section here, as it was waived by the President. See Pres.
Determination No. 2001-03, 65 Fed. Reg. 66483. Plaintiffs state that this "waiver power held by
13 See 28 U.S.C. § 1610(a)(7) (as amended).
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the President to issue a wavier was repealed by [TRIA], which applies specifically to the
property in question here, by exempting it from the President's waiver power." This argument is
untenable. First, as explained below, TRIA does not apply to the properties in question because
these properties are not "blocked assets" as defined by TRIA. See infra Part C. Furthermore, the
waiver authority provided under section 1610(f)(3), and the waiver executed thereto, continue to
be in effect today, notwithstanding the passage ofTRIA. TRIA created a mechanism, separate
and apart from section 1610(f)(l), by which judgment holders may attach foreign property. See,
~, Weininger v. Castro, 462 F. Supp. 2d 457, 486-87 (S.D.N.Y. 2006) ("TRIA thus expressly
provides that where a judgment against a terrorist party exists, not only its assets, but the assets
of its agencies and instrumentalities can be used to satisfy the judgment. In contrast,
§ 1610(f)(l)(A) states that if a creditor seeks to execute on assets claimed by an agency or
instrumentality of a foreign state, that agency or instrumentality must already not be 'immune
under§ 1605(a)(7)."'). TRIA did nothing to amend, repeal, or otherwise modify section
1610(f)(3). Accordingly, and as has been recognized by various courts, TRIA left unchanged the
waiver authority provided by 1610(f)(3), and the waiver that was executed by President Clinton
continues to render section 1610(f)(l) inoperable. See, e.g., Ministry of Defense and Support for
Armed Forces oflslamic Republic oflran v. Cubic Defense Systems, Inc., 495 F.3d 1024, 1032
(9th Cir. 2007) (noting that "TRIA's text does not expressly reinvigorate§ 1610(f)(l)(A) from
President Clinton's waiver"); Weininger, 462 F. Supp. 2d at 486-87 (describing differences
between TRIA and section 1610(f)(l), and noting that section 1610(f)(l) was waived by the
president); Smith v. Federal Reserve Bank of New York, 280 F. Supp. 2d 314, 317 & n.3
(S.D.N.Y.2003) (finding that plaintiffs could not rely on section 1610(f)(l) to attach property
because that section had been waived by the president, and separately finding that attachment
18
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under TRIA was also impermissible). Thus, plaintiffs cannot rely on section 1610(±)(1) to attach
the property at issue.
C. The Properties at Issue are Not "Blocked Assets" as Defined by TRIA and
Therefore are Not Subject to Attachment Under TRIA Section 201(a)
As set forth above, in addition to the exceptions under the FSIA, TRIA provides another
mechanism for attaching certain foreign property in aid of execution of a judgment. Section
201(a) of TRIA provides that "blocked assets" of a terrorist party shall be subject to attachment
in aid of execution of a judgment on a claim that is based upon an act of terrorism. Pub. L. No.
107-297. Section 201(d) of TRIA then states that "blocked assets" do not include property that:
[I]n the case of property subject to the Vienna Convention on Diplomatic
Relations or the Vienna Convention on Consular Relations, or that enjoys
equivalent privileges and immunities under the law of the United States, is being
used exclusively for diplomatic or consular purposes.
Section 201(d)(2)(B)(ii). 14
The five parcels of real property at issue fall within this exception to TRIA' s definition of
"blocked assets." First, the properties are "subject to the Vienna Convention on Diplomatic
Relations." Under the Vienna Convention, the United States is required to "respect and protect
the premises of the mission, together with its property and archives" even after diplomatic
relations have been severed. See Article 45 of the Vienna Convention on Diplomatic Relations.
Second, these real properties are "being used exclusively for diplomatic or consular purposes" by
the United States. The United States' obligations under the Vienna Convention include the duty
14 Section 201(d)(3) of the TRIA defines "property subject to the Vienna Convention on
Diplomatic Relations or the Vienna Convention on Consular Relations" as property, "the
attachment in aid of execution or execution of which would result in a violation of an obligation
of the United States under [either of the] Vienna Convention[s]."
19
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&
&
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Case 1:03-cv-01486-RCL Document 34 Filed 07/18/08 Page 20 of 23
to protect and maintain diplomatic properties. 15 See Nebel Deel. ,r,r 10-12. Accordingly, since
the break in diplomatic relations with Iran, the United States has undertaken to protect the
specific properties at issue pursuant to the Vienna Convention and the Foreign Missions Act. 16
See Nebel Deel. 4, 12. As the Nebel Declaration explains, OFM has determined that the
United States, as the receiving State, may appropriately discharge its obligation under the Vienna
Convention to protect the property, by ensuring (to the extent possible) that the properties are
occupied and generating income needed for their own maintenance and repair. See id. 11.
Consequently, over the years OFM has leased some of the properties, and has used some of the
proceeds for maintenance costs. See id. 12, 14-19. Remaining proceeds have been deposited
in a blocked Iranian diplomatic account, and are not used for any other purposes. See id. 12.
The United States' purpose in protecting certain foreign properties pursuant to its
international obligations, and any of its specific efforts pursuant to that purpose, have been
15 The United States notes that courts must give great weight to the Executive Branch's
interpretation of the Vienna Convention. See Sumitomo Shoji America, Inc. v. Avagliano, 457
U.S. 176, 184-85 (1982); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961).
16 Plaintiffs' writs each purport to be directed at "The Islamic Republic oflran and
Person In Possession Of The Below Described Real Property." Although these writs were never
served on the United States or its agencies, as this Court has previously held, property in the
custody or possession of the United States is subject to the United States' sovereign immunity.
See, e.g., Weinstein v. Islamic Republic oflran, 274 F. Supp. 2d 53, 57-58 (D.D.C. 2003);
Flatow v. Islamic Republic oflran, 74 F. Supp. 2d 18, 21 (D.D.C. 1999). Plaintiffs point to 28
U.S.C. § 1610(g)(2) as providing a waiver of that immunity. That section is inapplicable to these
proceedings because, as with § 161 0(g)(l ), see supra at 14-15, it only applies to judgments
entered under§ 1605A, which plaintiffs' judgment was not. In any event, nothing in section
161 0(g)(2) prevents the United States from protecting foreign diplomatic properties in its
custody as is required by the Foreign Missions Act and the Vienna Convention. Plaintiffs point
to no other waiver of the United States' sovereign immunity that would allow execution of a
writ, or any other compulsory judicial process, against the United States in the circumstances of
this case. See Flatow, 76 F. Supp. 2d at 23 (noting that the United States' custody of diplomatic
properties is a "sovereign" function).
20
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deemed by various courts as use of the property that is "exclusively for diplomatic or consular
purposes" under section 201(d)(2)(B). As one court explained:
The United States has an international legal obligation under the Vienna
Conventions to protect foreign missions, consular premises, and their property in
the United States in the event that diplomatic relations between the United States
and a foreign country are severed. The conventions recognize that diplomatic
properties belong to the state that established them, not to the government that
controls the state. The conventions also recognize that host states have the duty to
hold in trust for future generations the diplomatic properties of a state with whom
they have a dispute, however severe and violent, that has caused the severance of
diplomatic relations. As treaties into which the United States has voluntarily
entered, the conventions are part of the fundamental fabric of the nations law.
Likewise, the goal of assuring that the United States is in compliance with its
treaty obligations is quintessentially "diplomatic. " Therefore, in protecting the
subject properties the United States clearly is using them for a "diplomatic
purpose.
Hegna v. Islamic Republic oflran, 287 F. Supp. 2d 608, 610 (D. Md. 2003) (emphasis added);
see also Mousa v. Islamic Republic oflran, No. 00-2096 (D.D.C. Nov. 5, 2003) (attached hereto
as Exhibit 3) (finding that three parcels ofreal property formerly associated with the Iranian
diplomatic mission -- including two of the properties in this case -- were immune from
attachment under TRIA because in "protecting and maintaining the properties the United States
[was] fulfilling its duties under international diplomatic law," and therefore "the property is
being used for diplomatic or consular purposes"); Elahi v. Islamic Republic oflran, No. 99-
02802 (D.D.C. July 22, 2003) (attached hereto as Exhibit 4) (granting United States' motion to
quash writs on the same three properties at issue in Mousa v. Iran, because "an attachment of
these real properties by plaintiffs would result in a violation of an obligation owed by the United
States pursuant to the two Vienna Conventions"); Hegna v. Islamic Republic oflran, 376 F.3d
485, 495-96 (5th Cir. 2004) (finding that foreign property formerly used as the residence of the
General Consul of Iran was immune from attachment under TRIA because the property was
21
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Case 1:03-cv-01486-RCL Document 34 Filed 07/18/08 Page 22 of 23
being used by the United States "exclusively for diplomatic or consular purposes" under section
201(d)(2)(B), where the United States was leasing the properties and using a portion of the funds
to maintain and preserve the property pursuant to its diplomatic obligations under the Vienna
Conventions). Thus, the purpose of the United States in protecting the properties at issue,
including in renting out the properties where feasible, constitutes a "diplomatic purpose," under
section 201(d) of the TRIA. 17 Therefore, the properties are not blocked assets, and are not
subject to attachment under TRIA.
* * *
As neither the FSIA exceptions nor TRIA applies to the properties at issue, the FSIA and
the Foreign Missions Act prohibit the attachment of the real properties. The real properties are
immune from attachment pursuant to these provisions because the properties were used in the
past by the Iranian government for diplomatic activities and they are now being maintained
and/or leased by the Department of State pursuant to the United States' duties under the Vienna
Convention to preserve such diplomatic property.
CONCLUSION
For the reasons provided above, the Court should quash the plaintiffs' writs in their
entirety.
17 The fact that some of the properties are not currently occupied does not render them
attachable under TRIA. As the cases indicate, it is the United States' "diplomatic purpose" in
protecting the property from interference that makes the property immune from attachment, not
the means it takes in effectuating that purpose. See, e.g., Hegna; 287 F. Supp. 2d at 610.
Further, as explained in the Nebel Declaration, and as is shown in the jurisprudence involving
some of the exact properties at issue, OFM has taken efforts to periodically lease the properties
where feasible.
22
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Case 1:03-cv-01486-RCL Document 34 Filed 07/18/08 Page 23 of 23
Respectfully submitted this 18th day of July, 2008.
GREGORY G. KATSAS
Assistant Attorney General
JEFFREY A. TAYLOR
United States Attorney
JOSEPH H. HUNT
Director, Federal Programs Branch
VINCENT M. GARVEY
Deputy Director, Federal Programs Branch
Isl Vant Chilakamarri
V ARU CHILAKAMARRI (NY Bar)
Trial Attorney, Federal Programs Branch
U.S. Department of Justice, Civil Division
Tel: (202) 616-8489
Fax: (202) 616-8470
[email protected]
Courier Address:
20 Massachusetts Ave., NW, Rm. 7226
Washington, D.C. 20530
Counsel for the United States of America
CERTIFICATE OF SERVICE
I hereby certify that on July 18, 2008, a true and correct copy of the foregoing was served
electronically by the U.S. District Court for the District of Columbia Electronic Document Filing
System (ECF) and that the documents are available on the ECF system.
23
Isl Varu Chilakamarri
VARU CHILAKAMARRI
Annex 320