ORDER GRANTING LIEN CLAIMANTS' MOTION TO ATTACH CUBIC JUDGMENT

BARRY TED MOSKOWITZ, Chief Judge.

This motion concerns an attempt by ten American citizens1 to collect judgments against the Islamic Republic of Iran ("Iran") for personal injuries arising out of the country's terrorist activities. The Lien Claimants seek to attach the $2.8 million judgment that the Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran (hereinafter "MOD" or "MODSAF") obtained in this arbitration case.2 MOD opposes the motion by invoking its sovereign immunity as well as its rights under the Algiers Accords, an international agreement between Iran and the United States. Declaration of the Government of the Democratic and Popular Republic of Algeria, U.S. — Iran, 20 I.L.M. 224 (Jan. 1981). In addition to extensive briefing by the parties,3 the United States Department of Justice filed a Statement of Interest. Doc. No. 277; 28 U.S.C. § 517. The Court heard oral argument on January 8, 2013.

Having carefully considered the arguments of counsel and the governing law, the Court holds that Lien Claimants are entitled to the relief they seek. The Court holds that the Cubic Judgment is subject to attachment under § 201 of the Terrorism Risk Insurance Act of 2002 ("TRIA"), as well as § 1610(g) of the Foreign Sovereign Immunities Act of 1976 ("FSIA"). The Court does not at this time release the funds, which are on deposit with the Clerk of the Court. The Court stays disbursement of funds pending appeal, but title to the funds is immediately vested in the Lien Claimants (in a manner to be determined by a future Order). Also, the Lien Claimants must submit additional information.

I. BACKGROUND

After two decades adjudicating the dispute in various forums, the parties are well-acquainted with the facts, thus, the Court describes only those essential to the pending motion. The first section summarizes the facts underlying the $2.8 million Cubic Judgment in MOD's favor; the second background section describes the terrorism-related judgments held by the Lien Claimants against Iran.

A. Military Equipment Contracts and the Cubic Judgment

In 1977, while the Shah governed Iran, Cubic Defense Systems, Inc. ("Cubic") entered into two contracts to sell and maintain an air combat maneuvering range system ("ACMR") to MOD.4 The contracts had arbitration clauses and were governed by Iranian law. MOD's Request for Judicial Notice, Ex. C ¶¶ 2.6, 7.4 (hereinafter "Final Award"). By October 1978, Iran had paid over $12 million of the purchase price and modest sums on the service contract. Id. ¶ 2.2; MOD v. Cubic, 29 F.Supp.2d 1168, 1170 (S.D.Cal.1998).5 By February 1979, Cubic obtained export permits and was poised to transfer ownership of the equipment to Iran.

In November 1979, the Iranian revolution — which replaced the monarchy with the theocratic Islamic Republic of Iran, disrupted foreign relations with the United States, and culminated in the hostage crisis at the American Embassy — permanently prevented full performance of the military equipment contracts. Final Award ¶¶ 8.3, 8.8, 8.12, 8.18; see generally MOD v. Gould, Inc., 887 F.2d 1357 (9th Cir.1989) (describing American foreign policy implications of revolution in Iran).

In 1991, MOD initiated arbitration proceedings with the International Chamber of Commerce ("ICC"). The ICC found that the parties agreed to discontinue the contracts in light of the Islamic revolution, and reached a modified agreement that allowed Cubic to sell the ACMR to another country. Final Award ¶¶ 9-10. "Depending on the result of the attempt to resell the System, either [Iran] became entitled to be (partly) reimbursed for the payments it had made to Cubic, or Cubic became entitled to claim, in balance, an additional payment from Iran." Id. ¶ 11.28. In the Fall of 1982, Cubic sold the military equipment to Canada, yet Cubic ignored Iran's requests for an accounting.6 E.g., id. ¶¶ 6.1, 10.8, 16.1(h); Elahi, 556 U.S. at 372, 129 S.Ct. 1732 (observing "that Cubic had not lived up this modified agreement"). In May 1997, the ICC held that Cubic owed MOD $2.8 million plus interest and costs. Final Award ¶ 21.

In 1998, MOD filed a petition to confirm the arbitration award. This Court confirmed the arbitration award on December 7, 1998.7 MOD, 29 F.Supp.2d 1168. The "Cubic Judgment" was entered on August 10, 1999.

After years of appeals, the contract dispute is now resolved and the funds have been deposited with this Court.8

B. Lien Claimants Seek to Satisfy Terrorism-Related Judgments9

1. Claimant France M. Rafii

In 2001, Rafii, a United States citizen, sued Iran and the Ministry of Information and Security ("MOIS") for the wrongful death of her father Dr. Shapour Bakhtiar, the former prime minister of Iran. Compl. Rafii v. Islamic Republic of Iran, No. 01-CV-850-CKK (D.D.C. filed Apr. 18, 2001), ECF No. 1.10 Rafii filed suit pursuant to the terrorism exception in FSIA based on her allegation that agents of Iran assassinated Dr. Bakhtiar for his political opposition to the Islamic regime. 28 U.S.C. § 1605(a)(7) (2006) (repealed in 2008 and replaced by 28 U.S.C. § 1605A). Defendants did not appear.

In 2002, the Honorable Colleen Kollar-Kotelly conducted a two-day bench trial; made the necessary factual, jurisdictional, and statutory findings; and entered default judgment against Iran for $5 million compensatory damages. Order & Findings of Fact and Conclusions of Law Rafii, 01-CV-850-CKK (D.D.C. filed Dec. 2, 2002), ECF 21 (also awarding compensatory and punitive damages against MOIS).11

In 2003, Rafii filed a notice of lien on the Cubic Judgment.12 Doc. No. 124. She attached a copy of the registered default judgment and served MOD's counsel in this action. Id. at 4 & Ex. A.

2. The Nine Rubin Claimants

Using the then-existing terrorism exception to FSIA, 28 U.S.C. § 1605(a)(7), the Rubin suit was filed in 2001 based upon a suicide bomb attack by Hamas at a pedestrian mall in Jerusalem in 1997. Compl. Rubin v. Islamic Republic of Iran, No. 01-CV-1655-RMU (D.D.C. filed July 31, 2001), ECF No. 1 (hereinafter Rubin, No. 01-CV-1655-RMU). Several American citizens were injured, and nine pursue the Cubic Judgment (hereinafter the "Rubin Claimants"). These include five who were present at the bombing (J. Rubin, Miller, Mendelson, Hersh, and N. Rozenman), and four relatives who sought pain and suffering damages (D. Rubin, Frym, E. Rozenman, and T. Rozenman). Iran and its codefendants (MOIS and three senior officials) did not appear.

In 2003, the Honorable Ricardo M. Urbina of the District of Columbia District Court conducted an evidentiary hearing before concluding that Defendants provided terrorist training and other material assistance to the bombers. Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258 (D.D.C.2003) (findings of fact & conclusions of law in consolidated actions, including the Rubin claimants). The Court entered default judgment in 2003. Order & Judgment Rubin v. Islamic Republic of Iran, No. 01-CV-1655-RMU (D.D.C. filed Sept. 10, 2003), ECF No. 23. The Court ordered Iran to pay the nine Rubin Claimants compensatory damages ranging from $2.5 million to $15 million. Campuzano, 281 F.Supp.2d at 275-77.13

In 2008, Congress repealed § 1605(a)(7) and replaced it with an improved cause of action § 1605A to sue foreign terrorists. National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083, 122 Stat. 3 (2008). The amendment permitted plaintiffs with a pending terrorism-related lawsuit to ask the court to give their case "effect as if the action had originally been filed" under the new provision. Id. § 1083(c)(2)(A) (Application to Pending Cases). The Rubin plaintiffs promptly took advantage of the opportunity because their case was still pending as defined by the statute. Id.; Motion Pursuant to § 1083(c)(2) Rubin, No. 01-CV-1655-RMU (D.D.C. filed Mar. 28, 2008), ECF No. 76. In June 2008, the District Court granted the motion. Memorandum Order at 2 n. 3, 5, Rubin, No. 01-CV-1655-RMU (D.D.C. filed June 3, 2008) (noting "seven-year litigious saga" that included remand to resolve the pending motion pursuant to Fed.R.Civ.P. 60(b)), ECF No. 81.

In 2003, and as amended in 2009, the nine Rubin Claimants filed a notice of lien totaling $71.5 million.14 Doc. Nos. 130 & 145. MOD's attorney was served with both versions of the notice and a copy of the 2003 default judgment. Doc. Nos. 130 at 42 & Ex. B, 144, & 145, Ex. A.

Now before the Court is the joint motion by Lien Claimants to attach the Cubic Judgment to satisfy a portion of their default judgments against Iran. The motion to attach is a simple matter as MOD does not contest that Lien Claimants complied with the procedural requirements. The complexities arise from MOD's assertion of sovereign immunity and its reliance on the Algiers Accords. As in the past, "[d]etermining the viability of MOD's claim requires us to follow a labyrinthine path through several statutes and regulations." MOD, 385 F.3d at 1214.

II. LEGAL PRINCIPLES

A. Algiers Accords

In the course of the Iranian revolution, Iran took hostages at the American Embassy in Tehran in November 1979. President Carter responded by issuing Executive Order 12170, which "blocked all property and interests in property of the Government of Iran." Exec. Order 12170 (Nov. 14, 1979). The International Emergency Economic Power Act ("IEEPA") authorizes the President to block any property interest of a foreign country to deal with an "unusual and extraordinary threat ... to the national security, foreign policy, or economy of the United States." 50 U.S.C. §§ 1701(a), 1702(a). "The frozen assets serve as a `bargaining chip' to be used by the President when dealing with a hostile country." Dames & Moore v. Regan, 453 U.S. 654, 673-74, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981).

The Department of Treasury's OFAC immediately promulgated the Iranian Assets Control Regulations ("IACR") to execute the sanction. 31 C.F.R. pt. 535; 44 Fed.Reg. 65956-01 (Nov. 15, 1979). In particular, the IACR states that "[n]o 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, or withdrawn or otherwise dealt in except as authorized." 31 C.F.R. § 535.201 (2013). The freeze took effect on November 14, 1979.

On January 19, 1981, the United States settled the hostage crisis and entered the Algiers Accords with Iran. The United States promised to ensure that Iran would recover its frozen assets. "General Principle A" states:

MOD's Request for Judicial Notice, Ex. A (emphasis added). Paragraph 9 provides that the United States would arrange for the transfer of all Iranian property, located in the United States, as would have been allowed before November 14, 1979. Id.

In addition, Article II established the Iran — United States Claims Tribunal (hereinafter "Tribunal") "to resolve disputes between the two nations concerning each other's performance under the Algiers Accord." Elahi, 556 U.S. at 371, 129 S.Ct. 1732. The Tribunal has jurisdiction to interpret the agreement. MOD's Request for Judicial Notice, Ex. A, Art. II(3). The Tribunal still has jurisdiction over Iran's claim that the United States should pay damages for failing to transfer the ACMR as required by the Algiers Accord. MOD's Request for Judicial Notice, Exs. A & F; Elahi, 556 U.S. at 371, 129 S.Ct. 1732 (noting that Case No. B61 involves the military equipment built by Cubic but never exported from the United States to Iran); MOD's Opp. Br. at 6-7 (citing Contract No. 134 as the ACMR contracts between Iran and Cubic).15

To comply with the Algiers Accord, the United States lifted President Carter's 1979 sanction (Executive Order 12170) and unblocked Iranian assets. See generally Elahi, 556 U.S. at 370-71, 129 S.Ct. 1732 (collecting citations to regulations); Rubin, 709 F.3d at 55-56 (reviewing history); Weinstein v. Islamic Republic of Iran, 299 F.Supp.2d 63, 65-68 (S.D.N.Y.2004) (same); MOD's Request for Judicial Notice, Ex. E (OFAC's Director Newcomb describes history of Iran sanctions and regulations). The Department of Treasury amended the IACR to reflect the settlement. 46 Fed.Reg. 14336 (Feb. 26, 1981). For example, OFAC issued a general license authorizing transactions involving property in which Iran's interest arose after January 19, 1981, the date of the Algiers Accord. Elahi, 556 U.S. at 370-71, 129 S.Ct. 1732 (citing 31 C.F.R. § 535.579(a)).

B. Foreign Sovereign Immunities Act of 1976

The Iranian government is protected by sovereign immunity. Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) ("[A] foreign state is presumptively immune from suit in United States' courts."). Absent an exception in FSIA, 28 U.S.C. §§ 1602-1611, it cannot be sued in federal court nor can its assets be attached to satisfy a judgment. Saudi Arabia, 507 U.S. at 355, 113 S.Ct. 1471 (FSIA "provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country.") (quotation and citation omitted); Rubin v. Islamic Republic of Iran, 637 F.3d 783, 799 (7th Cir.2011) ("immunity inheres in the property itself"), cert. denied, ___ U.S. ___, 133 S.Ct. 23, 183 L.Ed.2d 692 (2012). A foreign state does not waive its immunity simply by failing to appear in court. Walters v. Indus. & Commercial Bank of China, Ltd., 651 F.3d 280, 295-96 (2d Cir.2011) (collecting cases).

FSIA governs the scope of sovereign immunity of a foreign state and its political subdivisions, agencies, and instrumentalities. 28 U.S.C. §§ 1602-1611. Because MOD is an inseparable part of the state of Iran, it qualifies as a "foreign state" within the meaning of FSIA § 1603(a). MOD, 495 F.3d at 1034-36; Garb v. Republic of Poland, 440 F.3d 579, 596 & n. 21 (2d Cir.2006) (as used in FSIA, "[t]he term `political subdivisions' includes all governmental units beneath the central government"); Reed v. Islamic Republic of Iran, 845 F.Supp.2d 204, 210 (D.D.C. 2012) (Ministry of Information is a political subdivision of Iran for purpose of FSIA) (citations omitted). In those instances when FSIA treats the foreign state and its political subdivisions differently than an agency or instrumentality,16 MOD enjoys the same sovereign immunity afforded to the foreign state itself.17

There are two types of immunity: (1) jurisdictional immunity (i.e., a foreign state's immunity from being haled into an American court), §§ 1604-1607, and (2) attachment immunity (i.e., its property in the United States is immune from "attachment arrest and execution"), §§ 1609-1611. See generally Walters, 651 F.3d at 286-90 (describing differences). The two components are not symmetrical. In some instances, FSIA "creates a right without a remedy" by allowing citizens to secure judgments against foreign states but not to seize assets to satisfy those judgments. Id. at 286-90 (criticizing policy); Peterson, 627 F.3d at 1128 (noting that "the exceptions to immunity from execution are more narrow than the exceptions from immunity from suit" because Congress intended "foreign states to voluntarily comply with U.S. court judgments"); Heiser, 807 F.Supp.2d at 12-16, 18-19, 25-26 (same).

Historically, countries retained jurisdictional and attachment immunity for "`sovereign or public acts (jure imperii),'" but FSIA eliminated immunity for a foreign state's "`private acts (jure gestionis),'" which primarily means a country's commercial activities.18 MOD, 495 F.3d at 1034 (quoting Republic of Austria v. Altmann, 541 U.S. 677, 690-91, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004)); e.g., 28 U.S.C. § 1602 (describing international law), § 1603(d) (defining commercial activity), § 1609 (attachment immunity except as provided by statute); see generally Saudi Arabia, 507 U.S. at 360, 113 S.Ct. 1471 ("a state engages in commercial activity ... where it exercises only those powers that can also be exercised by private citizens, as distinct from those powers peculiar to sovereigns"); Garb, 440 F.3d at 585-88 (describing history of sovereign immunity and commercial activity exception).

More recently, Congress has responded to acts of international terrorism by removing jurisdictional and attachment immunity from foreign states that injure or kill United States citizens. See generally In re Islamic Republic of Iran Terrorism Litig., 659 F.Supp.2d 31, 35, 49-58 (D.D.C. 2009) (describing Congress' response to efforts by victims to enforce default judgments against Iran); Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46, 59 (D.D.C.2003) (in 1996, Congress lifted immunity for sovereign acts of terrorism "that are repugnant to the United States and the international community"). "`Those nations that operate in a manner inconsistent with international norms should not expect to be granted the privilege of immunity from suit, that is within the prerogative of Congress to grant or withhold.'" Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 106 (D.D.C.2000) (quoting Daliberti v. Republic of Iraq, 97 F.Supp.2d 38, 50-52 (D.D.C.2000)).

Over time, many plaintiffs successfully sued Iran for its sponsorship of violent terrorism. The long break in foreign relations, however, meant that Iran had few assets in the United States to satisfy the backlog of judgments. By 2009, Iran faced "billions of dollars in liability" for the injuries caused by its state sponsorship of terrorist activities, yet "the prospects for recovery are virtually nonexistent." Iran Terrorism Litig., 659 F.Supp.2d at 58 (citing OFAC's Terrorist Assets Report of $9.6 billion in outstanding judgments against Iran but less than $55 million in known blocked and unblocked financial assets in the United States). Congress frequently amended the immunity statute in an attempt to remedy this situation. Jennifer K. Elsea, Suits Against Terrorist States by Victims of Terrorism 2-3, 6-8, 17, 51, 98-102 (Beatrice V. Mohoney, ed., 2009). Lien Claimants' motion to attach relies on two of those modern amendments to FSIA: (1) TRIA, enacted in 2002, and (2) § 1610(g), added in 2008.26

1. Terrorism Risk Insurance Act of 2002

In 2002, Congress enacted the TRIA in an effort to further assist victims of terrorism collect compensation from hostile foreign actors. Pub. L. No. 107-297, § 201, 116 Stat. 2322 (Nov. 26, 2002); e.g., 148 Cong. Rec. H. 6133, 6135-36 (2002) (remarks of Mr. Grucci, Mr. Oxley, Mr. Baker, & Mr. Watt); 148 Cong. Rec. H 6649, 6655 (2002) (remarks of Mr. Fossella); H.R. 107-779 (Nov. 13, 2002) (joint explanatory statement of the committee of conference); see Heiser, 807 F.Supp.2d at 12-16, 18-19, 25-26 (surveying "complex regime" of laws that "unfortunately, more often prevented ... FSIA plaintiffs from enforcing judgments"); Hausler, 740 F.Supp.2d at 535-36 (the remedial purpose of TRIA to comprehensively address frustration of terrorism victims unable to enforce judgments is plain on face of statute and supported by legislative history). TRIA is codified as a note following FSIA § 1610 and currently states:

28 U.S.C. § 1610 note (emphasis added).27 Congress thereby expanded the ability of victims of terrorism to reach beyond commercial property to attach property frozen by a financial sanction. See generally Iran Terrorism Litig., 659 F.Supp.2d at 57-58 (describing TRIA); Elsea, supra, at 6-8, 17. The term "blocked asset" means "any asset seized or frozen by the United States under ... the International Emergency Economic Powers Act (50 U.S.C. § 1701, 1702)...." Id. (2)(A). TRIA directs that such assets "shall be subject to" attachment "notwithstanding any other provision of law." § 1610 note.

The term "terrorist party" includes a foreign state designated as a state sponsor of terrorism under the Export Administration Act of 1979. Id. The Secretary of State designated Iran as a country that has repeatedly provided support for acts of international terrorism pursuant to the Export Administration Act. 50 U.S.C.App. § 2405(j); 31 C.F.R. § 596.201 (2013); accord Arms Export Control Act, 22 U.S.C. § 2780; 22 C.F.R. § 126.1(d) (2013); Foreign Assistance Act of 1961, 22 U.S.C. § 2371(a). Iran has been so designated since 1984 and that designation remains in place. 49 Fed.Reg. 2836-02 (Jan. 23, 1984); MOD, 495 F.3d at 1032; Reed, 845 F.Supp.2d at 211; Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 9 (D.D.C. 1998).

2. 2008 Amendment Adds § 1610(g)

In 2008, Congress made several changes to FSIA to enhance the remedies for terrorism victims. One significant change was to strengthen the terrorism exception to a foreign state's jurisdictional immunity. As discussed above, Congress replaced § 1605(a)(7) with § 1605A to improve access to federal court and the available remedies. National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, div. A, tit. X, § 1083(b)(3), 122 Stat. 3 (Jan. 28, 2008); see generally Iran Terrorism Litig., 659 F.Supp.2d at 36-41, 58-62 (describing improvements, such as permitting recovery of punitive damages); Elsea, supra, at 38-46, 99; see supra page 6.

In a second important change, Congress added § 1610(g) to expand the power of victims of state-sponsored terrorism to attach any property in the United States as long as the foreign state has "simple ownership" of the asset. 28 U.S.C. § 1610(g); e.g., 154 Cong. Rec. S54-01, 2008 WL 182982 (Jan. 22, 2008) (remarks of Senator Lautenberg); H.R. Rep. 110-844, 2008 WL 4211130 at *8-9; Heiser, 807 F.Supp.2d at 25-26 ("in crafting the broad remedial language of § 1610(g), Congress made no exceptions to its reach"); Calderon-Cardona v. Democratic People's Republic of Korea, 723 F.Supp.2d 441, 458 (D.P.R.2010) (stating that § 1610(g) "significantly eases enforcement of judgments entered under section 1605A"); Elsea, supra, at 41-44, 99-101.

III. ANALYSIS

A. The Algiers Accord

1. The Algiers Accord Does Not Prevent Attachment because MOD's Interest in the Asset in Question Arose after November 14, 1979

MOD argues that distribution of the Cubic Judgment to the Lien Claimants would violate the United States' foreign policy obligations in the Algiers Accord. MOD contends that the Court should give full effect to that Executive Agreement and consider the imperative importance of maintaining the United States' compliance with its international commitments. Dames & Moore, 453 U.S. at 660, 673, 101 S.Ct. 2972; Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804). The United States obligated itself to "restore the financial position of Iran, in so far as possible, to that which existed prior to November 14, 1979." MOD's Request for Judicial Notice, Ex. A. The purpose of the Algiers Accord was to retain the status quo of Iran's financial position before President Carter froze Iran's assets to punish the taking of American hostages. MOD argues that, prior to November 14, 1979, Iran's financial position included the amount of the ICC's Final Award on the Cubic contracts. According to MOD, the fund now held by this Court constitutes the net value of MOD's property rights in the military equipment, or alternatively, the monetary value of the contracts.

MOD grounds its argument on events that predate November 14, 1979. By late 1978, MOD had made significant payments on the sales contract ($12 million of the $17 million purchase price). By early 1979, Cubic had substantially completed building the ACMR and had secured an export license. Moreover, before the hostages were seized, the parties mutually agreed to modify the contracts and settle accounts later. Elahi, 556 U.S. at 372, 129 S.Ct. 1732. Cubic's subsequent breach of that agreement — by failing to remit to MOD the proceeds of the 1982 sale of the ACMR to Canada — does not alter those basic facts. According to MOD, these facts establish its ownership interest by the date established in the Algiers Accord.

MOD further argues that those facts establish a legal right to the Cubic Judgment under Iranian law.28 Iranian law governs the interpretation of the Cubic contracts. MOD states that Iranian law created an enforceable property right in 1977 (when MOD signed the contracts) or alternatively in 1978 (when the ACMR was produced under the terms of the contracts). See MOD's Request for Judicial Notice, Ex. F. Thus, MOD argues that the Cubic Judgment falls within the Algiers Accords as part of Iran's financial position that existed before November 14, 1979.

Consequently, MOD argues the Lien Claimants cannot attach the Cubic Judgment because the United States must honor its agreement and restore Iran to its pre-1979 financial position by ensuring the transfer of the $2.8 million award (plus accrued interest) to MOD (into a blocked bank account as required by current sanctions). Dames & Moore, 453 U.S. at 660, 101 S.Ct. 2972.

The Court holds that the Algiers Accord does not bar the attachment of the Cubic Judgment in light of the United States Supreme Court's decision in Elahi, 556 U.S. 366, 129 S.Ct. 1732.29

There, in an earlier appeal by a different lien claimant seeking to attach under TRIA, the Supreme Court held that Iran's interest in the Cubic Judgment or "the property that underlies" it first arose in October 1982. In Elahi, the Supreme Court emphasized that attachment depends upon properly identifying the "asset in question." Id. at 376, 129 S.Ct. 1732. The asset in question is the Cubic Judgment enforcing the arbitration award — not Iran's interest in the ACMR, not MOD's right to pursue its legal remedies for breach of the 1977 contracts, and not the ICC's Final Award in favor of MOD.30 Id. The Supreme Court found, at the earliest, that Iran's interest in the Cubic Judgment itself arose in 1998 when the district court confirmed the arbitration award. Id. The Supreme Court also acknowledged that Iran's interest could be characterized as "the property that underlies the Cubic Judgment," namely, the proceeds from the sale of the ACMR to Canada. Id. at 376-77, 129 S.Ct. 1732. In that regard, the Supreme Court determined that Iran's claim to the proceeds of the military equipment contract arose, at the earliest, in October 1982, when Cubic was able to "reasonably, comprehensively, and precisely account" for the results of the agreement to resell the system to Canada. Id. at 376-77, 129 S.Ct. 1732. Until the sale to the third party was accomplished, the amount of restitution, if any, could not be determined because Cubic was entitled to its expenses, a reasonable profit, and other compensation. Id. (citing ICC Final Award). The resale to Canada in 1982 was essential to transforming Iran's inchoate claim into a tangible, attachable asset.

This analysis defeats MOD's defense to the instant motion. Applying the Elahi analysis, "prior to November 14, 1979" (the date identified in the Algiers Accord), it was uncertain whether Iran or Cubic would be entitled to financial compensation on the contracts. See id. at 376, 129 S.Ct. 1732. Hence, for the purpose of deciding the Lien Claimants' motion to attach, Iran's interest in the Cubic Judgment arose three years after the critical date for applying the Algiers Accord. Consequently, the Algiers Accord is not an obstacle to the relief sought by the Lien Claimants.

The United States supports this decision. In its Statement of Interest, the United States contends that "[n]othing in the Algiers Accords would prohibit the attachment of Iran's 1999 monetary judgment in this case." Doc. No. 277 at 10. The government's interpretation of its own agreement is entitled to "great weight." Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 & n. 10, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982); see Altmann, 541 U.S. at 702 & n. 23, 124 S.Ct. 2240 (courts defer to Executive branch's opinion on issue of foreign policy in particular cases); United States v. Lombera-Camorlinga, 206 F.3d 882, 887 (9th Cir.2000) (en banc) (courts ordinarily respect State Department's interpretation of a treaty that it negotiated); Estate of Heiser v. Islamic Republic of Iran, 885 F.Supp.2d 429, 441 (D.D.C.2012) (giving weight to Statement of Interest by Executive Branch on issue of foreign policy).

Consequently, the Court holds that the Algiers Accord does not prevent the Lien Claimants from attaching the Cubic Judgment.

2. Treasury Regulation 31 C.F.R. § 535.540(f)

MOD also contends that United States law recognizes Iran's ownership of the proceeds of the sale of the ACMR to Canada, even if realized after 1981. MOD argues that the proceeds of the ACMR sale are governed by 31 C.F.R. § 535.540(f) (defining "[t]he proceeds of [a] sale" as "property"). MOD contends this federal regulation requires the monies interpleaded by Cubic to be returned to Iran in accordance with the Algiers Accord.

MOD observes that the Supreme Court construed TRIA in relation to Treasury regulation 31 C.F.R. § 535.579 in order to review the Ninth Circuit's decision on the general license. See Elahi, 556 U.S. at 376-77, 129 S.Ct. 1732; MOD, 385 F.3d at 1214. MOD now relies on a different section of the IACR. The Supreme Court did not address the requirements of § 535.540, therefore, MOD contends that the Elahi decision is not necessarily inconsistent with its current position.

The Department of Treasury enacted § 535.540 in July 1982 to handle situations where exporters, purchasing agents, or other Americans were holding tangible property that could not be transferred to Iran due to the freeze, but the property might deteriorate, decline in value, or incur expensive storage costs. 47 Fed.Reg. 31682 (July 22, 1982). The regulation created a new licensing procedure to allow the goods to be sold at a public auction. In particular, the regulation governed "tangible properties as to which Iran did not possess complete or uncontested ownership rights under applicable provisions of U.S. law because of failure to pay the purchase price and other related charges." Id. Upon deducting reasonable costs, the licensee was required to deposit the contested funds into a "separate blocked, interest-bearing account at a domestic bank." § 535.540(d); see § 535.333(c) (stating that Iran's property interests can be considered "contested" if there is a reasonable belief and the opinion of an attorney "that Iran does not have title or has only partial title to the asset"). Nonetheless, the regulation required that Iran's uncontested share of the proceeds of such a sale to be transferred to Iran as promised in the Algiers Accords. § 535.540(f).

MOD contends that this regulation shows that United States law recognizes Iran's ownership of the ACMR system or the resale proceeds by the date of the Algiers Accord. MOD attempts to demonstrate that the regulation applies because (1) the ACMR was tangible property that President Carter blocked on November 14, 1979 and (2) Cubic contested ownership of the asset.31 "If Iran had a share in the resale proceeds of the ACMR system, it means that it should have possessed a property interest in the asset itself in the first place, otherwise it could not have any share in the resale proceeds." MOD's Reply to U.S. at 4.

The Court is not persuaded by this argument. MOD's reliance on § 535.540 attempts to equate the funds now held by this Court either to the net value of the ACMR or to the proceeds of the sale of that military equipment to Canada. In Elahi, the Supreme Court rejected an analysis tied to the tangible asset of the ACMR. Instead, the Supreme Court analyzed Iran's property interest as either the Cubic Judgment itself or the proceeds of the Canadian sale. For the purpose of deciding a motion to attach, the Supreme Court identified the attached asset as one in which Iran's property interest did not arise until October 1982 at the earliest. This Court is bound by that characterization. MOD's reliance on § 535.540 fails to alter the outcome: Iran's financial interest in the attached asset arose after the effective date of the Algiers Accord (January 19, 1981).

Moreover, the Elahi decision determined that the Cubic Judgment did not have the status of a blocked asset up to the date of the Ninth Circuit's decision in mid-2007. Elahi, 556 U.S. at 377-78, 129 S.Ct. 1732. Instead, the Supreme Court concluded the Cubic Judgment was governed by the general license in § 535.579. Id. at 377, 129 S.Ct. 1732. It follows that the Cubic Judgment was not, at that time, "blocked by § 535.201" so as to require the specific license outlined in § 535.540(a). Thus, this regulation is not relevant to the facts.

3. The Tribunal has Jurisdiction to Interpret the Algiers Accord and to Enforce the United States' Obligations

In addition, the Court observes that MOD's arguments concerning the Algiers Accord are directed at the United States. E.g., MOD's Opp. Br. at 10-13 & n. 1; MOD's Response to United States Br. 2-6; MOD's Sur-Reply Br. at 2-7; MOD's Reply Br. at 2-6. The United States is not a party to this action. It filed a written statement as a courtesy to the Court. The Court is deciding the separate issue of whether the Lien Claimants can attach the Cubic Judgment. To the extent that MOD contends that the United States breached the Algiers Accord, the Court notes that the United States' obligations can be determined in Iran's pending Case No. B61. See supra footnote 15. The B61 case includes Iran's claim for compensation from the United States for military equipment owned by Iran on or before November 1979. See MOD, 495 F.3d at 1030-31 (distinguishing between Cubic's contractual obligations and United States' obligations). The Tribunal has jurisdiction over the United States and has the power to craft an appropriate remedy to enforce the international agreement. The Tribunal is the proper venue to resolve whether the United States' duty to "restore the financial position of Iran" under the Algiers Accord includes compensation for the ACMR.32 The Court expresses no opinion on the merits of the dispute between Iran and the United States in Case No. B61. See Doc. 277 at 11-12 (discussing setoff dispute).

B. Lien Claimants Can Attach the Cubic Judgment under TRIA because it is a Blocked Asset on the Date of this Decision

Lien Claimants satisfy several preliminary requirements of TRIA. First, it has been established that Iran is a "state sponsor of terrorism" and a "terrorist party." See supra pages 1081-82. Second, the record shows that Lien Claimants seek to Case 3:98-cv-01165-B-DHB Document 302 Filed 11/27/13 Page 23 of 42 enforce judgments for compensatory damages for claims based on acts of terrorism. See supra pages 1075-77. Third, MOD does not dispute that it is liable for Iran's debts.33 Fourth, it is undisputed that MOD received adequate notice that Lien Claimants would be seeking to attach the Cubic Judgment.34 See supra pages 1075-77. The only dispute is whether the Cubic Judgment is a blocked asset under TRIA on the date of this decision. Elahi, 556 U.S. at 368, 376, 377, 387, 129 S.Ct. 1732.

The Court agrees with Lien Claimants that the Cubic Judgment is a blocked asset under two separate federal laws: (1) Executive Order 13599 and (2) the Weapons of Mass Destruction Proliferators Sanctions regulations. Consequently, MOD's property, the Cubic Judgment, is not immune from execution of the Lien Claimants' District of Columbia terrorism-related judgments.

1. President Obama's February 2012 Executive Order

First, the Court concludes that the Cubic Judgment satisfies the definition of a blocked asset based upon President Obama's Executive Order 13599 freezing "[a]ll property and interests in property of the Government of Iran" that are subject to the jurisdiction of the United States. 77 Fed.Reg. 6659 (Feb. 8, 2012). It became effective in February 2012 and remains in effect today. 77 Fed.Reg. 7660 (Feb. 13, 2012). This recent Executive Order blocked all Iranian property interests, including those of its political subdivisions such as MOD, pursuant to the IEEPA. 77 Fed.Reg. at 6660 § 7(d); 31 C.F.R. pt. 560 (2013) (Iranian Transactions and Sanctions Regulations).

The United States supports this interpretation of the Executive Order. Doc. No. 277 at 8; accord Doc. No. 203, Ex. C (OFAC License describes Cubic Judgment as blocked asset under Executive Order 13599); see also Heiser, 885 F.Supp.2d at 441 ("Courts have traditionally accorded some weight to the views of the Executive Branch" regarding blocked assets in foreign policy arena).

In opposition, MOD argues that Executive Order 13599, by its terms, does not apply to property first blocked by President Carter's Executive Order 12170 (November 14, 1979) but thereafter made subject to the transfer directives of the Algiers Accords as implemented by Executive Order 12281 (January 19, 1981). 77 Fed.Reg. at 6660 § 4(b). In short, President Obama made an exception for property covered by the Algiers Accord. MOD repeats its contention that attachment of the Cubic Judgment breaches the United States' treaty obligations because those funds must be restored to Iran as part of its pre-1979 financial position.

For the same reasons discussed above, the Court is not persuaded. See supra pages 1083-87 (citing Elahi, 556 U.S. at 375-77, 129 S.Ct. 1732). Accordingly, the Court finds that the Cubic Judgment is blocked by Executive Order 13599 and its implementing regulations. Therefore, TRIA allows those who hold judgments related to Iran's terrorist activities to attach the Cubic Judgment.

2. Weapons of Mass Destruction Proliferators Sanctions Regulations

Second, the Cubic Judgment is a "blocked asset" pursuant to Executive Order 13382 which pertains to the proliferation of weapons of mass destruction (including nuclear, biological, and chemical weapons). Pursuant to the IEEPA, the Executive Order blocks the property of any foreign person engaged in or attempting to engage in the production of such weapons. Executive Order 13382; 70 Fed. Reg. 38567 (June 28, 2005). In 2007, the Department of State designated MOD as supporter of and actor involved with the production of weapons of mass destruction. 72 Fed.Reg. 71991, 71992 (Dec. 19, 2007). The accompanying Weapons of Mass Destruction Proliferators Sanctions ("WMDPS") regulations operate broadly to block "all property and interests of property that are in the United States" of the designated entities. 31 C.F.R. §§ 544.201(a), 544.301 (2013); 74 Fed.Reg. 16771-01 (Apr. 13, 2009).

The United States supports this interpretation. Doc. No. 277 at 7-8; accord Doc. No. 203, Ex. C (OFAC License describes Cubic Judgment as a blocked asset under 31 C.F.R. pt. 544); see also Heiser, 885 F.Supp.2d at 441 (courts give some weight to Executive Branch's views on foreign policy issues).

The Court holds that the Cubic Judgment is a blocked asset within the definition of TRIA pursuant to the designation of MOD as a proliferator of weapons of mass destruction.

MOD raises two objections to the application of the WMDPS regulations. MOD first argues that the designation applies to the "Ministry of Defense and Armed Forces Logistics" ("MODAFL"). MOD argues that the designation does not extend to the distinct entity of the "Ministry of Defense and Support for the Armed Forces," the entity awarded the Cubic Judgment.

The Court agrees with the United States that MOD cannot evade the designation based on a minor discrepancy in the translation of the Ministry's name. Doc. No. 277 at 8. The Department of State interprets its regulation referring to "MODAFL" to apply to MOD. See 72 Fed Reg. 71991-02 (Dec. 19, 2007) (listing both MODAFL and MODSAF as designees). That reasonable interpretation is not clearly erroneous and thus controls. Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (citations omitted); see also Heiser, 885 F.Supp.2d at 441.

MOD's second objection is that a regulation prohibits the use of the Cubic Judgment to satisfy the Lien Claimants' request. The regulation is entitled: "Payments from blocked accounts to satisfy obligations prohibited." 31 C.F.R. § 544.407 (2013). It states: "Pursuant to § 544.201, no debits may be made to a blocked account to pay obligations to U.S. persons or other persons, except as authorized by or pursuant to this part." Id. MOD argues this regulation bars Lien Claimants from attaching the Cubic Judgment because the funds are held by the Clerk of the Court in a "blocked account"; consequently, no debit can be made to satisfy MOD's obligation to Lien Claimants, who are "U.S. persons."

The Court agrees with the Lien Claimants' analysis of the regulation. This regulation simply lists one of many ways the United States prevents anyone from making any type of transaction to transfer, pay, export, withdraw, or otherwise deal with designated entities except as set forth in the WMDPS regulations. Id. § 544.201; e.g., id. § 544.405 (prohibiting the performance of services including accounting, financial, brokering, freight forwarding, transportation, or public relations), § 544.406 (prohibiting transfers through an offshore transaction), § 544.409 (prohibiting transfer via charge cards, debit cards, or credit agreements), § 544.410 (prohibiting taking a setoff against blocked property). The "debit" restriction immobilizes a designated entity's assets within the jurisdiction of the United States in every possible manner. Taken in context, the Court interprets the regulation as preventing designated parties from circumventing the sanction by having a third party take funds from a blocked account to satisfy a debt. The regulation thus prohibits indirect, concealed access to frozen funds by creditors as well as direct, undisguised access by the designated entity itself.

Moreover, MOD's reliance on § 544.407 is inconsistent with the policy of TRIA to empower terrorism victims to attach blocked assets. See supra pages 1080-82 and infra pages 1093-94 & 1095-96. Even if MOD correctly reads § 544.407 so that it conflicts with TRIA, the regulation would be barred by the "[notwithstanding any other provision of law" language in FSIA. 28 U.S.C. § 1610 note, § (a). The Court concludes that this vague regulation does not override the statute that specifically allows holders of terrorism-related judgments "in every case" to attach "blocked assets" to obtain compensation. Id.; see United States v. Maes, 546 F.3d 1066, 1068 (9th Cir.2008) ("a regulation does not trump an otherwise applicable statute unless the regulation's enabling statute so provides"); United States v. Doe, 701 F.2d 819, 823 (9th Cir.1983) ("Where an administrative regulation conflicts with a statute, the statute controls.") (citations omitted).

Lien Claimants correctly observe that TRIA does not permit execution unless the account has the status of being frozen. See Rubin, 709 F.3d at 54 (assets must be "`blocked' to fall within TRIA's scope"); Smith v. Fed. Reserve Bk. of NY, 346 F.3d 264, 271 (2d Cir.2003) (TRIA's plain language gives "terrorist victims who actually receive favorable judgments a right to execute against assets that would otherwise be blocked") (emphasis added). In light of that reality, it would not make sense for § 544.407 to prevent attachment by victims of terrorism.

Finally, OFAC issued a license to the Cubic Judgment that permits the Court to distribute these funds pursuant to TRIA. Doc. No. 203, Ex. C. The Department of Treasury's OFAC thus implicitly interprets its own WMDPS regulations to permit the Lien Claimants to attach this asset. See City of Seattle v. FERC, 923 F.2d 713, 716 (9th Cir.1991) (courts show deference to agency's sensible reading of a license); Heiser, 885 F.Supp.2d at 441 (deferring to Executive Branch's interpretation of TRIA in light of important role that blocked assets play in foreign policy); e.g., Heiser v. Bank of Tokyo Mitsubishi UFJ, 919 F.Supp.2d 411, 422-23 (S.D.N.Y. 2013) (allowing distribution of funds to victims pursuant to TRIA of assets blocked by WMDPS without an OFAC license).

In sum, the Court rejects MOD's regulatory defense to attachment.

3. MOD Does Not Have a Defense to Attachment under TRIA

In its effort to defeat the straightforward application of TRIA, MOD raises three other arguments. Each argument fails.

a. The Algiers Accords Does Not Bar this TRIA Motion

MOD reframes its reliance on the Algiers Accord. MOD contends that the Court must interpret TRIA consistent with the United States' treaty obligations. MacLeod v. United States, 229 U.S. 416, 434, 48 Ct.Cl. 512, 33 S.Ct. 955, 57 L.Ed. 1260 (1913) (when construing a statute, "it should not be assumed that Congress proposed to violate the obligations of the country to other nations"); Chew Heong v. United States, 112 U.S. 536, 550, 5 S.Ct. 255, 28 L.Ed. 770 (1884); Murray, 6 U.S. at 118 ("an act of Congress ought never to be construed to violate the law of nations if any other construction remains"). This concept applies to executive agreements like the Algiers Accord. Dames & Moore, 453 U.S. at 660, 679-86, 101 S.Ct. 2972. MOD argues that "[w]hether viewed as a presumption as to congressional intent, a rule of inadvertent repeal, or a vindication of comity, the canon's principle objective is to ensure the integrity of United States' obligations under international agreements." Br. at 15.

MOD argues that the competence of the Tribunal should not be undermined because the United States agreed to settle claims in that forum. The facts show that both Iran and the United States recognize that the Cubic contracts are at issue in the Tribunal. Br. at 13-14 n. 2. MOD asserts that Lien Claimants should not impede the bargaining powers of the President to "block" assets as part of his diplomatic efforts. Dames & Moore, 453 U.S. at 673, 101 S.Ct. 2972. It argues the Court should defer to the President's power to handle foreign policy negotiations with Iran rather than allow Lien Claimants to collect. MOD argues that any interpretation of TRIA that permits the Lien Claimants to attach the Cubic Judgment should conform to the United States' obligations under the Algiers Accords to restore Iranian property to Iran. MOD argues that granting the attachment motion would render the United States in default of the Algiers Accord.

The Court is not persuaded by MOD's argument. Congress expressly allows victims of terrorism to attach assets under TRIA "notwithstanding any other provision of law." 28 U.S.C. § 1610 note; see Weinstein, 609 F.3d at 53-54 (rejecting a bank's reliance on the 1955 Treaty of Amity between Shah of Iran and United States because TRIA "trumps" all other laws). This clear statement permits the Lien Claimants to attach any asset that is, at present, blocked as defined by United States law. See Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993) (use of a "notwithstanding" clause "clearly signals" intent to "override conflicting provisions") (collecting cases); United States v. Novak, 476 F.3d 1041, 1046-47 (9th Cir.2007) (en banc) (generally, a "notwithstanding" clause in a statute signals Congress' clear intent to supercede any previously enacted conflicting laws) (collecting cases); cf. Roeder, 333 F.3d at 237-38 (if Congress had enacted a "notwithstanding" provision to allow hostages to sue Iran, the language might abrogate the Algiers Accords promise to the contrary).

b. The Iranian Assets Control Regulations Do Not Prevent Attachment of the Cubic Judgment

In 1979, the Department of Treasury issued the Iranian Assets Control Regulations ("IACR") to implement President Carter's order to block assets, and then amended them in 1981 to implement the Algiers Accord. See generally Weinstein, 299 F.Supp.2d at 65-68 (describing regulations before and after hostage crisis settled); Security Pacific National Bank v. Islamic Republic of Iran, 513 F.Supp. 864 (C.D.Cal.1981) (same); MOD's Request for Judicial Notice, Ex. E (describing OFAC's implementation of sanctions against Iran and the Algiers settlement); see supra pages 1077-78.

As a defense to attachment, MOD cites the general license authorizing "new transactions concerning certain Iranian property." 31 C.F.R. § 535.579 (2013). This regulation authorizes "[transactions involving property in which Iran or an Iranian entity has an interest" either when the property came within the jurisdiction of the United States or when Iran's interest in the property arose "after January 19, 1981." Id. § 535.579(a) (emphasis added). Thus, if the Court finds that Iran's interest in the Cubic Judgment arose in October 1982 upon the sale of the ACMR to Canada, MOD contends that Iran is entitled to the money because its interest arose after January 19, 1981. See Elahi, 556 U.S. at 377, 129 S.Ct. 1732 ("we must conclude that October 1982 is the time when Iran's claim to proceeds arose"). Under MOD's analysis, the Cubic Judgment is not a blocked asset because it falls within the general license covering Iran's property interests that arose after January 19, 1981. Id. § 535.579(a).

The Court is not persuaded by this interpretation of the regulation. MOD takes the language out of context. The "new transactions" regulation was enacted in 1981 to implement the hostage release agreement with Iran by lifting the freeze on Iranian assets that President Carter previously imposed in 1979. 46 Fed.Reg. 14336 (Feb. 26, 1981); see generally Dames & Moore, 453 U.S. at 662-73, 101 S.Ct. 2972. Effective January 19, 1981, § 535.579 merely states that "new transactions" with Iran were now permitted (within the confines of the IACR). The clear intent of this 1981 general license was to authorize future transactions of Iranian assets that were not entangled with the Algiers Accord. See Weinstein, 299 F.Supp.2d at 67 ("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.") (footnote omitted); MOD's Request for Judicial Notice, Ex. E ¶¶ 15-16 (Decl. of OFAC Director Newcomb describes general license in § 535.579); cf. Dames & Moore, 453 U.S. at 669-74, 101 S.Ct. 2972 (holding IEEPA authorized President to enforce Algiers Accord by nullifying a creditor's prejudgment attachment and ordering transfer of asset to Iran).

More importantly, MOD's position ignores recent sanctions. MOD oversimplifies the analysis by equating a transaction permitted by the general license set forth in IACR § 535.579 with an "unblocked asset" in every respect. Weinstein, 299 F.Supp.2d at 74-76 (TRIA defines "blocked assets" as those "seized or frozen," not "as an `omnibus' term extending to all assets `regulated' or `licensed' by the OFAC"). MOD's position might have had merit if it had been made anytime between January 19, 1981 and October 2007, when the IACR was the only sanction at issue.35 But in October 2007 and again in February 2012, the legal landscape changed. As the Court discussed above, the Cubic Judgment bears the current status as a "blocked asset" by operation of laws other than the IACR.

c. The Nine Rubin Claimants May Rely on TRIA

MOD argues that the Rubin Claimants cannot rely on TRIA to attach the Cubic Judgment because the repeal of § 1605(a)(7) makes TRIA inapplicable to subsequently entered terrorism-related judgments. MOD's complicated theory relies on the fact that the Rubin Claimants filed their complaint in 2001 and secured their judgment against Iran in 2003. During that time period, FSIA allowed lawsuits against state sponsors of terrorism under § 1605(a)(7). The Rubin Claimants filed their original lien on the Cubic Judgment in 2003 and cited § 1605(a)(7). Doc. No. 130. But in 2008, Congress repealed that subsection governing jurisdictional immunity and replaced it with § 1605A. See supra pages 1076-77 & 1082 (citing legislation). As soon as Congress amended FSIA in 2008, the Rubin Claimants obtained permission from the District of Columbia District Court to give their action the same effect as if it had been filed under the new terrorism exception, § 1605A. See supra pages 1076-77. MOD argues that § 1605A also requires judgment creditors of a foreign state to follow the attachment procedures in § 1610(a)(7).36 In 2009, the Rubin Claimants amended their notice of lien on the Cubic Judgment. Because the 2009 lien is subsequent to the 2008 amendment, MOD argues TRIA does not apply to the Rubin Claimants.

As a matter of statutory interpretation, MOD's premise is unwarranted. The Court concludes that Congress' clear and consistent intent in amending FSIA in recent years, and in particular enacting § 1605A as well as TRIA, has been to assist victims collect compensation from foreign states that sponsored acts of terrorism. E.g., Heiser, 807 F.Supp.2d at 12-16, 18-19, 25-26 (surveying "the latest in series of attempts by Congress to aid these victims" of state-sponsored terrorism to enforce judgments). The language of § 1605A clearly states that victims have the right to benefit from treating their claim "as if" it had been filed under the new jurisdictional immunity exception for terrorism. Moreover, Congress specified that it applied to actions pending "in any form" and that "[t]he defenses of res judicata, collateral estoppel, and limitation period are waived." Pub. L. No. 110-181, § 1083(C)(2)(A) & (B), 122 Stat. 3 (2008). Congress wanted to help victims with pending actions, not create a hurdle for those who had secured money damages. The Court is not persuaded by MOD's argument that the 2008 amendment of FSIA restricted the ability of victims attach the assets of foreign states.

This conclusion is validated by the 2012 amendment to TRIA. Congress updated TRIA to reflect the new terrorism cause of action in § 1605A. Pub. L. No. 112-158, tit. V, § 502(e)(2), 126 Stat. 1260 (Aug. 10, 2012). TRIA now refers to both judgments "under section 1605A or 1605(a)(7) (as such section was in effect on January 27, 2008)." 28 U.S.C. § 1610 note (2013). This amendment demonstrates that TRIA's attachment remedy is available to those who hold judgments "based upon" acts of terrorism, for which FSIA statute withholds jurisdictional immunity from designated state sponsor of terrorism. The Rubin Claimants satisfy that requirement. Campuzano, 281 F.Supp.2d at 261-62, 269-71; see supra pages 1076-77.

Even if the Court were to accept MOD's contention that the 2008 amendment does not apply to a "subsequently" entered judgment, the District of Columbia District Court did not enter a new judgment. The Rubin Claimants' judgment was entered in 2003. A new judgment was not prepared when the District Court granted the motion to transform the Rubins' lawsuit against Iran as permitted by Congress. See supra pages 1076-77; Doc. No. 145, Ex. A.

C. FSIA § 1610(g) Authorizes the Rubin Claimants to Attach the Cubic Judgment

As an alternative to TRIA, Lien Claimants argue that 28 U.S.C. § 1610(g) allows terrorism victims to attach "the property of a foreign state" without any requirement that the asset be "blocked."

MOD argues subsection § 1610(g) is not available because the property must have been used in connection with "commercial activity." MOD notes that the Ninth Circuit held in a prior appeal that MOD has not "used" the Cubic Judgment for a commercial purpose. MOD, 495 F.3d at 1036-37; see supra footnote 18. In addition, MOD contends that the Supreme Court ruled that the commercial activity exception does "not apply to property of an entity that itself is an inseparable part of the foreign state." Elahi, 556 U.S. at 374, 129 S.Ct. 1732 (citing MOD, 495 F.3d at 1035-36). Only a foreign state can buy military equipment to defend the nation, thus MOD contends that it entered into the Cubic contracts to perform a classic government function.

Lien Claimants contend that MOD misreads the scope of that decision. The Court agrees that MOD's contention is over broad in some respects. None of the prior decisions "declared that the Cubic Judgment is not subject to attachment under the immunity exemption of § 1610" as a whole. See MOD's Opp. Br. at 19. The Supreme Court was referring to § 1610(b)(7) — the commercial property exception to attachment of an agency's or instrumentality's assets. The Supreme Court held that Ninth Circuit erred in its 2004 decision by assuming that MOD qualified as an agency or instrumentality. On remand, in 2007, the Ninth Circuit held that MOD did not fit that category, but instead was entitled to the immunity afforded the foreign state itself. Thereafter, the Ninth Circuit held that the Cubic Judgment was not attachable under § 1610(a)(7) — the commercial activity exception that governs foreign states and political subdivisions — because MOD had not "used" the asset in that context. See supra footnote 18. The instant motion does not rely on the subsections addressed in those prior appeals. Instead, Lien Claimant's base this motion on § 1610(g). Because this section was added to FSIA in 2008, it was not at issue in the prior appeals. Pub. L. 110-181, div. A, tit. X, § 1083(b)(3), 122 Stat. 3 (Jan. 28, 2008).

Nonetheless, this argument raises the question of whether or not § 1610(g) is restricted to property that a foreign state has used in connection with commercial activity. MOD's argument presupposes that § 1610(g) covers only commercial property. Lien Claimants read the statute to separate § 1610(g) from any commercial activity requirement. By its own terms, § 1610(g) eschews any "commercial" use test by permitting attachment regardless of where the profits go or whether the government controls the property. § 1610(g)(1)(A)-(E) (listing five factors that do not prevent attachment).

The Court agrees with Lien Claimants that § 1610(g) "expanded the category of foreign sovereign property that can be attached; judgment creditors can now reach any U.S. property in which Iran has any interest." Peterson, 627 F.3d at 1123 n. 2 (emphasis added); Elsea, supra, at 41-44, 100-01. The plain language of the statute supports a broad reading. Section 1610(g) allows attachment of any "property of a foreign state against which a judgment is entered under section 1605A."37 Congress did not qualify the definition by limiting it to property connected to a commercial activity. Heiser, 807 F.Supp.2d at 19 n. 8 (in dicta, stating "§ 1610(g) does not limit attachment to property used in `commercial activity' — unlike the execution provisions found in § 1610(a) & (b) — and thus the Act `removes from the victims the burden of specifying commercial targets ... to help them receive justice and recover damages'") (quoting Debra M. Strauss, Reaching Out to the International Community: Civil Lawsuits as the Common Ground in the Battle against Terrorism, 19 Duke J. Comp. & Int'l L. 307, 332-33 (2009)).

If Congress had intended the commercial activity restriction to apply then it could have included the new language under a subsection to § 1610(a). Section 1610(a) covers property "used" by a foreign state "for a commercial activity" in seven situations. § 1610(a)(1) to (a)(7). But Congress did not insert the new attachment provision under the subheading of the commercial activity exception (i.e., as § 1610(a)(8)). The plain text and placement of the new attachment provision shows that it is not limited to "commercial" property.

Similarly, subsection 1610(b), governing the property of an agency or instrumentality "engaged in commercial activity," and subsection 1610(d), governing lis pendens of property "used for a commercial activity," are specifically limited to assets connected to commercial activity. Congress knew how to specify when commercial assets were vulnerable to attachment.

The historical context is also important. A significant roadblock exists because few Iranian assets remain in the United States given severed economic and diplomatic ties. Heiser, 885 F.Supp.2d at 441; Heiser, 807 F.Supp.2d at 14. That fact impairs the ability of terrorism victims to obtain justice. Congress added § 1610(g), like FSIA § 1610(f) and TRIA, specifically to assist victims of terrorism who had been thwarted in their attempts to find assets to satisfy their judgments. E.g., Heiser, 807 F.Supp.2d at 13-16 (reviewing the "desolate backdrop" of barriers facing victims before Congress enacted § 1610(g) in 2008); Elsea, supra, at 6-18, 51, 98-99. Notably, all of these subsections only apply to the rare countries that have been designated as state sponsors of terrorism. E.g., 31 C.F.R. § 596.201 (designating Iran and three other countries). By comparison, the commercial activity exceptions in § 1610(a) and (b) apply to every country, thereby providing greater protection to property owned by friendly governments than by hostile governments. See Peterson, 627 F.3d at 1127-28. Congress has the power to withhold the privilege of jurisdictional immunity from foreign states that sponsor terrorist acts and to treat their property differently. Elahi, 124 F.Supp.2d at 106 (citation omitted); Heiser, 885 F.Supp.2d at 444 ("the `property of of designated state-sponsor of terror loses its sovereign immunity and may become subject to attachment"). In an attempt to help such victims obtain compensation, Congress sensibly expanded the universe of assets that could be attached to "any property interest in which the foreign state enjoys a beneficial ownership." H. Rep. No. 110-447 (Dec. 6, 2007); Peterson, 627 F.3d at 1123 n. 2; Calderon-Cardona, 723 F.Supp.2d at 458.

In light of the plain language of § 1610(g), the Court finds that the Cubic Judgment is "property" that can be attached by the Rubin Lien Claimants, as holders of judgments under § 1605A based upon Iran's sponsorship of terrorist activities.

This particular holding applies only to the Rubin Claimants. When Congress added § 1610(g) in 2008, it limited the broad attachment exception to suits under § 1605A. As described, the Rubin Claimants' lawsuit was pending at the time Congress enacted § 1605A. See supra pages 1076-77. The District of Columbia District Court gave their judgment the same effect as if it had been entered under § 1605A. Thus, the Rubin Claimants can rely on § 1610(g). Because Rafii's lawsuit was brought under the now-repealed terrorism exception, § 1605(a)(7), she is not eligible to invoke § 1610(g). Peterson, 627 F.3d at 1123 n. 2 ("Plaintiffs in this case failed to re-file their actions under the new § 1605A terrorism exception and cannot take advantage of new § 1610(g).") (citation omitted); Heiser, 807 F.Supp.2d at 18 n. 5 ("the benefits provided [by § 1610(g) ] accrue only to victims of state-sponsored terrorism who obtained judgments under § 1605A, and not its predecessor, § 1605(a)(7)") (citation omitted); Bennett, 604 F.Supp.2d at 162 (Section "1610(g), by its express terms, applies only to `judgments 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)"). Moreover, when Congress amended FSIA in August 2012, it often extended attachment relief to judgments entered under the old § 1605(a)(7) as well as the current § 1605A. E.g., § 1610(a)(7), (b)(3); Pub. L. 112-158, tit. V, § 502(e)(1), 126 Stat. 1214 (Aug. 10, 2012). It did not make that change to § 1610(g). Therefore, the Court holds that Rafii cannot rely on § 1610(g) to attach the Cubic Judgment.

D. California's Attachment Procedure

Though the gravamen of the instant motion is attachment under California law, the issue warrants only brief discussion. MOD does not object to the procedure used by the Lien Claimants' to attach the Cubic Judgment.

State law applies to motions to attach a money judgment issued by a federal court. Fed.R.Civ.P. 69(a)(1); Peterson, 627 F.3d at 1130 (citations omitted); Hausler v. J.P.Morgan Chase Bank, N.A., 845 F.Supp.2d 553, 563 (S.D.N.Y.2012) (citing legislative history that "Congress contemplated the use of state procedural law to enforce judgments" while federal law provides substantive rules of TRIA).

California's procedure to satisfy a lien is set forth in § 708.470 of the Code of Civil Procedure.38 The claimant bears the burden of proof and the Court has discretion whether to grant the application. Brown v. Super. Ct., 116 Cal.App.4th 320, 9 Cal.Rptr.3d 912, 924 (2004). "To obtain a lien under this article, the judgment creditor shall file a notice of lien and an abstract or certified copy of the judgment creditor's money judgment in the pending action or special proceeding." Cal.Civ. Proc.Code § 708.410(2)(b) (West 2012).

The Court has independently reviewed the documents and has only one concern. California follows the "first in time, first in right" rule "according to the time of their creation," that is, on the date of filing a notice of lien. Cal. Civ.Code § 2897 (West 2012); Fleet Credit Corp. v. TML Bus Sales, Inc., 65 F.3d 119, 122 (9th Cir.1995); First Bank v. East West Bank, 199 Cal.App.4th 1309, 132 Cal.Rptr.3d 267, 270 (2011); Oldham v. Calif. Capital Fund, Inc., 109 Cal.App.4th 421, 134 Cal.Rptr.2d 744, 751 (2003) (notice of lien establishes and preserves creditor's priority); Brown, 9 Cal.Rptr.3d at 918. Rafii holds the senior lien (filed on May 16, 2003). The Rubin Claimants filed their notice five months later (October 30, 2003, as amended on April 29, 2009).

The Rafii and Rubin Lien Claimants filed a joint motion and have agreed between themselves how to allocate the proceeds of the Cubic Judgment. They request that the funds be deposited to a bank account designated by their attorneys so as to relieve the Court of any obligation to apportion the funds between claimants.

This request is inconsistent with Rafii's senior lien. She is entitled to satisfy her judgment in full and has no obligation in law or fact to share the Cubic Judgment with junior creditors.39 Equally important, each of nine Rubin Claimants must understand the operation of the apportionment agreement to their compensation awards. See supra page 1076 (Noam Rozenman recovered $15 million, while Deborah Rubin's damage award totaled $2.5 million).

Accordingly, the Court orders each Lien Claimant to submit an individual, notarized statement consenting to the apportionment of the Cubic Judgment between and among them as negotiated by their attorneys. Collins v. Home Sav. & Loan Ass'n, 205 Cal.App.2d 86, 22 Cal.Rptr. 817, 822 (1962) (a party may waive or subordinate her priority); Irvine v. Calif. Cotton Credit Corp., 18 Cal.App.2d 761, 64 P.2d 782, 782-83 (1937). The affidavit must contain a clear and concise explanation of the terms of the apportionment agreement and the statutory right of priority. The information must be written in plain, easily understood language so as to reflect that each Lien Claimant is making a knowing, voluntary, and intelligent decision. The affidavits shall be submitted to the Court within 45 days from the date of the filing of this Order, and in counsel's discretion, may be accompanied by a motion to file the notarized statements under seal.

As a housekeeping note, counsel shall also provide the federal taxpayer identification number as required by Local Rule 67.1.

E. Stay

MOD requests a stay of execution of the liens to allow it time to appeal. Fed. R.Civ.P. 62.

Lien Claimants oppose a stay on the grounds that the case presents no extraordinary circumstance; MOD's arguments lack merit; and ten years have passed since the victims secured their judgments against Iran.

The Court prefers a two-step process that immediately provides for execution on the attachment and forthwith transfers title to the Lien Claimants, but stays disbursement of the funds until the conclusion of any appeal.

The docket shows that no other claimant has a senior lien.

The Court instructs the Clerk of the Court to reflect the name on the account in this action so that the owners are France M. Rafii, Jenny Rubin, Deborah Rubin, Daniel Miller, Abraham Mendelson, Stuart E. Hersh, Renay Frym, Noam Rozenman, Elana Rozenman, and Tzvi Rozenman. The allocation of the funds between the several claimants will be set forth in a future Order.

The Court concludes that it is appropriate to stay the disbursement of funds pending appeal. Haw. Hous. Auth. v. Midkiff, 463 U.S. 1323, 104 S.Ct. 7, 77 L.Ed.2d 1426 (1983); Klaus v. Hi-Shear Corp., 528 F.2d 225 (9th Cir.1975) (purpose of stay is to preserve status quo); Marisco, Ltd. v. F/V Madee, 631 F.Supp.2d 1320 (D.Haw.2009) (applying Rule 62 standard to request to stay enforcement of a money judgment). These are complex and important legal issues. The United States' relationship with Iran is constantly changing, and the United States may alter the sanctions in response. The funds have been deposited with the Court and this eliminates any risk that the funds will not be available to the prevailing party. See Colo. River Indian Tribes v. Town of Parker, 776 F.2d 846, 850-51 (9th Cir.1985). If MOD prevails on appeal, however, it may be difficult to retrieve the funds from Lien Claimants. Lamon v. Shawnee, Kan., 758 F.Supp. 654 (D.Kan.1991); Order Rubin, No. 01-CV-1655-RMU (D.D.C. filed May 26, 2005) (granting stay on execution of bank funds since it would be difficult to get money back from plaintiffs). That situation could have diplomatic implications on the pending negotiations between the United States and Iran.

On balance, these factors persuade the Court to transfer title but stay disbursement of the funds until the completion of the appeal.

The Court finds that a bond is unnecessary given the safety of the Court's registry account. Fed.R.Civ.P. 62(d).

In the event that MOD does not file a timely appeal, Lien Claimants may return to the Court to request the release of the funds.

CONCLUSION

Upon due consideration of the parties' memoranda and exhibits, the arguments advanced at hearing, and for the reasons set forth above, the Court hereby grants Lien Claimants' joint motion to attach and execute on the Cubic Judgment. [# 222].

Within 45 days, Lien Claimants shall submit the affidavits described above.

The Lien Claimants' judgments shall attach the proceeds of the Cubic Judgment. Execution on that Cubic Judgment to partially satisfy the judgments of the Lien Claimants shall be deemed to have been accomplished. Title to the proceeds is deemed vested in the Lien Claimants. The Clerk of the Court shall reflect the name on the account in this action so that the owners are France M. Rafii, Jenny Rubin, Deborah Rubin, Daniel Miller, Abraham Mendelson, Stuart E. Hersh, Renay Frym, Noam Rozenman, Elana Rozenman, and Tzvi Rozenman. The Clerk shall not disburse any funds until further Order of this Court.

IT IS SO ORDERED.