United States Court of Appeals
                     For the First Circuit

No. 11-2144

                      JENNY RUBIN, ET AL.,

                     Plaintiffs, Appellants,

                               v.

                ISLAMIC REPUBLIC OF IRAN, ET AL.,

                           Defendants,


                   HARVARD UNIVERSITY, ET AL.,

                      Trustees, Appellees.




          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. George A. O'Toole, U.S. District Judge]




                             Before

                    Howard, Stahl, and Lipez,
                         Circuit Judges.




     Meir Katz, with whom Robert J. Tolchin and The Berkman Law
Office, LLC were on brief, for appellants.
     Paul R.Q. Wolfson, with whom Mark C. Fleming, Sydenham B.
Alexander, III, Shirley X. Li Cantin, Janet R. Carter, and Wilmer
Cutler Pickering Hale and Dorr LLP were on brief, for appellee
Harvard University.
     Simon J. Frankel, with whom Covington & Burling LLP, Robert J.
Muldoon, Jr., Thomas Paul Gorman, and Sherin and Lodgen LLP were on
brief, for appellee Museum of Fine Arts, Boston.
     Benjamin M. Shultz, with whom Mark B. Stern and Sharon
Swingle, Attorneys, Appellate Staff, Civil Division, U.S.
Department of Justice, Stuart F. Delery, Acting Assistant Attorney
General, Carmen M. Ortiz, United States Attorney, Matthew Tuchband,
Acting Chief Counsel, Office of Foreign Assets Control, U.S.
Department of the Treasury, and Harold Hongju Koh, Legal Advisor,
U.S. Department of State, were on brief, for amicus curiae United
States.



                        February 27, 2013




                               -2-
             STAHL, Circuit Judge.        The plaintiffs-appellants in this

case   are    United   States    citizens    who   were    injured    in   a   1997

terrorist attack that Hamas orchestrated in Jerusalem.                  They sued

the Islamic Republic of Iran in the United States District Court

for the District of Columbia, alleging that Iran had provided

material support to Hamas and was therefore liable for the attack.

In 2003, the plaintiffs obtained a default judgment against Iran.

Campuzano v. Islamic Rep. of Iran, 

(D.D.C.

2003).    Seeking to collect on that judgment, they moved to attach,

by trustee process action in the District of Massachusetts, certain

antiquities that they claim are the property of Iran but that are

currently in the possession of the defendants-appellees, the Museum

of Fine Arts, Boston (MFA) and Harvard University (collectively,

"the Museums").

             After several years of litigation, the district court

granted      the   Museums'     motions    to   dissolve    the      attachments,

concluding that the Museums could invoke the objects' immunity from

attachment under the Foreign Sovereign Immunities Act, and that

although the Terrorism Risk Insurance Act provided a potential way

around that immunity, the plaintiffs had failed to meet their

burden of proving that the antiquities in question were attachable

under that statute.       We agree with the district court that the

trustee attachments should be dissolved, though we take a narrower

path to reach that conclusion.


                                      -3-
                        I. Facts & Background

           This action began in 2005, when the plaintiffs registered

their    default   judgment   against   Iran1   in    the   District   of

Massachusetts and moved for orders of attachment by trustee process

against all "antiquities . . . that are the property of the Islamic

Republic of Iran" in the possession of the Museums.          See Fed. R.

Civ. P. 69.    At issue are approximately 500 objects in Harvard's

possession and approximately 1,485 objects held by the MFA that

originated in or near the area covered by the current borders of

Iran, including    stone   reliefs, sculptures,      and archaeological

specimens.

           The Museums moved to quash the trustee process summonses

and dissolve the attachments, arguing that Iran did not own the

antiquities and that, even if it did, the antiquities would be

immune under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.

§§ 1602-1611, which provides that "the property in the United

States of a foreign state shall be immune from attachment arrest

and execution except as provided in sections 1610 and 1611 of this

chapter," 

plaintiffs responded with three arguments, raised in

a motion for partial summary judgment and an opposition to the


     1
       In the District of Columbia action, the plaintiffs sued Iran
and other defendants. The plaintiffs were awarded $71.5 million in
compensatory damages against all defendants and $37.5 million each
in punitive damages against all defendants except Iran. Rubin v.
Islamic Rep. of Iran, 

, 230 (D. Mass. 2006).

                                  -4-
motion to quash: (1) the Museums did not have standing to assert

sovereign immunity on behalf of Iran; (2) even if they did, the

"commercial use" exception to immunity under the FSIA would apply,

see 

(3) in any event, the plaintiffs could

reach the antiquities under section 201(a) of the Terrorism Risk

Insurance Act of 2002 (TRIA), Pub. L. No. 107-297, § 201(a), 116

Stat. 2322, 2337 (2002) (codified at 28 U.S.C. § 1610 note), which

permits the attachment of certain "blocked assets of [a] terrorist

party."     The district court found it appropriate to consider

whether the antiquities were immune under the FSIA and determined

that the "commercial use" exception did not apply, but concluded

that the plaintiffs might still be able to attach the antiquities

under    section   201(a)   of   TRIA   if   they   could   prove   that   the

antiquities belonged to Iran.           Rubin v. Islamic Rep. of Iran

(Rubin I), 

(D. Mass. 2006).

            The Museums moved for reconsideration of the district

court's ruling that the antiquities qualified as "blocked assets"

under TRIA, and the court issued a second order declining to alter

its previous ruling but explaining it in further detail.            Rubin v.

Islamic Rep. of Iran (Rubin II), 

(D. Mass.

2008).    The court also certified for interlocutory appeal, see 28

U.S.C. § 1292(b), its rulings regarding the applicability of

section 201(a) of TRIA, the issue of whether a foreign sovereign's

immunity under the FSIA may only be raised by that sovereign, and


                                    -5-
the question of whether the "commercial use" exception applied,

Rubin 

.      The parties filed petitions for

leave to appeal, which we denied, finding that aspects of the legal

question of immunity might be bound up with the factual question of

ownership and preferring to resolve the immunity question after

ownership had been ascertained.        Rubin v. Islamic Rep. of Iran,

Nos. 08-8020 & 08-8021 (1st Cir. Aug. 11, 2008).

            Discovery proceeded, and the Museums once again moved to

dissolve the attachments.    This time, the district court granted

their motions.    The court found that, as judgment creditors, the

plaintiffs bore the burden of proving that any object on which they

sought to execute belonged to Iran, that TRIA did not alter that

burden, and that, "despite extensive discovery," the plaintiffs

were "unable to sustain their burden of showing that any particular

item held by the Museums is the property of Iran subject to

execution by means of trustee process."      Rubin v. Islamic Rep. of

Iran (Rubin III), 

, 404 (D. Mass. 2011).        The

court examined two Iranian laws that the plaintiffs had invoked,

one from 1930 and another from 1928, and concluded that neither

vested ownership of the antiquities in Iran.      

court thus dissolved the trustee attachments, and this appeal

followed.




                                 -6-
                           II. Analysis

          For context, we briefly summarize the complex issues that

the parties have put before us, though our resolution of this case

does not require us to delve into many of them.     The plaintiffs'

main argument on appeal is that TRIA preempts state property law,

and, when read in conjunction with certain Treasury Department

regulations, gives the plaintiffs (in their words) the right to

levy against "any interest of Iran, even if that interest is less

than a full ownership interest."   They further claim that Iran has

an interest in the antiquities under Iranian law that is sufficient

to make them attachable under TRIA.

          The Museums, for their part, counter that TRIA does not

displace the traditional rule that a judgment creditor may execute

only against assets that a judgment debtor owns, and that the

district court was correct in concluding that Iranian law does not

vest title to the antiquities in Iran.    However, the Museums also

challenge the district court's finding that the antiquities qualify

as "blocked assets" within the meaning of TRIA -- a prerequisite

for that statute to apply.     See TRIA § 201(a).     Finally, the

Museums urge us to find that, even if Iran owns the antiquities and

they are theoretically attachable under TRIA, the plaintiffs' claim

is barred under Massachusetts law by the three-year statute of

limitations and the Museums' adverse possession of the objects.




                               -7-
            Also before us is the position of the United States

Department of the Treasury's Office of Foreign Assets Control

(OFAC),    which   is   responsible   for   administering   and   enforcing

economic     and   trade    sanctions,      including   promulgating    the

regulations at issue here.      The United States has filed an amicus

brief articulating OFAC's views regarding two aspects of this case.

First, OFAC urges us to find that TRIA authorizes the attachment

only of those assets that are owned by the relevant terrorist

party.     Second, providing its own interpretation of the Treasury

Department regulations, OFAC argues that the antiquities are not

"contested" within the meaning of those regulations, which, if

correct, would make TRIA inapplicable here.

            Because we agree with OFAC that the antiquities are not

"contested," and thus conclude that they cannot qualify as "blocked

assets" under TRIA, we need not reach the broader questions of

whether TRIA preempts state law, what kind of ownership interest

suffices for an asset to be attachable under TRIA, whether Iranian

law vests title to these antiquities in Iran, or whether the

plaintiffs' claims are foreclosed by the Massachusetts statute of

limitations or the adverse possession doctrine. Before we turn our

attention to the "blocked assets" issue, however, we must address

a last-minute attempt by the plaintiffs to overcome the immunity

hurdle posed by the FSIA.




                                      -8-
A. The FSIA

              The FSIA makes "the property in the United States of a

foreign state" immune from attachment and execution, subject to

certain exceptions, 28 U.S.C. § 1609, one of which permits the

attachment of property "used for a commercial activity in the

United States," assuming the underlying judgment "relates to a

claim for which the foreign state is not immune under section 1605A

or section 1605(a)(7) (as such section was in effect on January 27,

2008)," 

   plaintiffs     argued     before   the

district court that the antiquities fell within the scope of that

exception.     See Rubin 

            They claimed

that the statute did not require Iran specifically to use the

antiquities for commercial purposes in the United States, but that

any   party    (including   the    Museums)   could   do    so   in   order    for

section 1610(a)(7) to be implicated.          The district court rejected

that argument, holding that "the plain language of the statute, its

legislative      history,   and     generally    accepted        principles    of

international law establish that the 'commercial use' exception of


      2
       The plaintiffs also contended that the Museums did not have
standing to assert the immunity of the antiquities under 28 U.S.C.
§ 1609, because immunity is an affirmative defense, personal to the
sovereign.    On appeal, they have not challenged the district
court's rejection of that argument, which was in accord with other
courts' rulings on the issue. See Rubin 

32; see also Walters v. Indus. & Commercial Bank of China, Ltd.,

, 290 (2d Cir. 2011); Rubin v. Islamic Rep. of Iran,

, 801 (7th Cir. 2011); Peterson v. Islamic Rep. of
Iran, 

, 1128-29 (9th Cir. 2010); Walker Int'l Holdings
Ltd. v. Rep. of Congo, 

, 233 (5th Cir. 2004).

                                      -9-
§ 1610 applies only where it is the foreign sovereign who engages

in the commercial activity."   

their opening brief on appeal, the plaintiffs did not

challenge that holding.    However, after the Museums addressed

section 1610(a)(7) in their briefs, the plaintiffs filed a reply

brief, arguing for the first time that we should permit execution

under section 1610(g) of the FSIA, see 28 U.S.C. § 1610(g), which

Congress enacted in January 2008 as part of the National Defense

Authorization Act (NDAA), Pub. L. No. 110-181, § 1083(b)(3)(D), 122

Stat. 3, 341-42 (2008).   The plaintiffs read section 1610(g) as

allowing a judgment creditor to execute against "any property

interest" whatsoever of a foreign state.

          The NDAA provides that qualifying judgments entered under

the old version of the FSIA should, "on motion made by plaintiffs

to the United States district court where the action was initially

brought . . . be given effect as if the action had originally been

filed under" the new version of the statute. NDAA § 1083(c)(2)(A).

In March 2008, the plaintiffs filed such a motion in the D.C.

district court where they had obtained the default judgment, and

the motion was granted in June 2008.3      Rubin v. Islamic Rep. of


     3
       After the plaintiffs filed their motion for retroactive
application of the NDAA, the Museums wrote a letter to the D.C.
district court, arguing that the plaintiffs had not satisfied the
requirements of section 1083(c)(2)(A) of the NDAA.        Rubin v.
Islamic Rep. of Iran, 

, 9 (D.D.C. 2010). However, the
court did not receive the Museums' letter until the day it granted
the plaintiffs' motion, 

and it denied as untimely the

                               -10-
Iran, 

, 9 (D.D.C. 2010).     The Massachusetts district

court issued its initial immunity ruling in this case in 2006, see

Rubin I, 

, but it certified that ruling for

interlocutory appeal in March 2008 (two months after the enactment

of the NDAA and three days after the plaintiffs filed their motion

for retroactive application of the NDAA with the D.C. district

court), see Rubin 

, and the case

continued before the Massachusetts district court well into 2011,

see Rubin III, 

.

          At no point, however, did the plaintiffs bring the FSIA

amendment or the 2008 D.C. district court decision to the attention

of the Massachusetts district court in the instant trustee process

action.   Nor did the plaintiffs make any argument pertaining to

section 1610(g) in their opening brief on appeal.4    They made the

argument for the first time in their reply brief, claiming that

they had no opportunity to raise the applicability of section

1610(g) before the district court.     We reject that excuse, given

that more than three years passed between the amendment of the FSIA



Museums' later motion to intervene for the purpose of seeking
reconsideration, 

       In their reply brief, the plaintiffs place great weight on
the fact that the Museums tried to intervene in the 2008 D.C.
district court action and thus were on notice that the plaintiffs
might attempt to invoke section 1610(g) in the Massachusetts
proceeding. That does not, however, excuse the plaintiffs' failure
to raise their section 1610(g) argument before the Massachusetts
district court or in their opening brief on appeal.

                               -11-
and the district court's final ruling in this case.          In any event,

the plaintiffs have provided no compelling explanation for their

additional failure to invoke section 1610(g) in their opening brief

on appeal.

           We therefore refuse to consider the applicability of

section 1610(g).     See Anderson v. Hannaford Bros. Co., 

, 158 n.5 (1st Cir. 2011) (reiterating the basic rule that an

argument not raised before the district court is deemed waived);

N. Am. Specialty Ins. Co. v. Lapalme, 

, 45 (1st Cir.

2001) ("There are few principles more securely settled in this

court than the principle which holds that, absent exceptional

circumstances, an appellant cannot raise an argument for the first

time in a reply brief.").

B. TRIA

           Nonetheless, under certain circumstances, TRIA permits

the attachment of property that might otherwise be immune under the

FSIA.   See Bennett v. Islamic Rep. of Iran, 

, 21 (D.C.

Cir.    2010).     The   relevant   section    of   TRIA    provides   that

"[n]otwithstanding any other provision of law . . . , a person

[who] has obtained a judgment against a terrorist party on a claim

based upon an act of terrorism" may attach and execute on "the

blocked assets of that terrorist party (including the blocked

assets of any agency or instrumentality of that terrorist party)"

in order to satisfy the judgment.          TRIA § 201(a).    TRIA thereby


                                    -12-
allows a person to circumvent the normal process for attaching

assets that are blocked under a sanctions program, which entails

obtaining a license from OFAC.     See, e.g., 31 C.F.R. §§ 535.201,

535.310, 515.201, 515.310, 594.201, 594.312.

          There exists some debate as to whether TRIA preempts

state property law and whether the phrase "assets of that terrorist

party" in section 201(a) means that the terrorist party must

actually own the assets.     Compare Hausler v. JPMorgan Chase Bank,

N.A., 

, 562-68 (S.D.N.Y. 2012), and Hausler v.

JP Morgan Chase Bank, N.A., 

, 529-39 (S.D.N.Y.

2010), with Calderon-Cardona v. JPMorgan Chase Bank, N.A., 867 F.

Supp. 2d 389, 399-405 (S.D.N.Y. 2011).      But even if we assume,

simply for the sake of argument, that the antiquities at issue here

qualify as "assets of" Iran under section 201(a), they would also

need to be "blocked" in order to fall within TRIA's scope.      See

Ministry of Def. & Support for the Armed Forces of the Islamic Rep.

of Iran v. Elahi, 

, 369 (2009) ("[W]e initially decide

whether Iran's Cubic Judgment is a 'blocked asset' within the terms

of [TRIA].").   That question of law, whether viewed as one of

statutory interpretation or one of foreign sovereign immunity, is

subject to de novo review.    See Hernández-Miranda v. Empresas Díaz

Massó, Inc., 

, 170 (1st Cir. 2011); Ungar v. Palestine

Liberation Org., 

, 288 (1st Cir. 2005).




                                 -13-
            The plaintiffs claim that the Museums did not appeal the

district court's decision that the antiquities are "blocked assets"

under TRIA and thus argue that that order is "the law of this

case."      Not so.    At the Museums' request, the district court

certified its "blocked assets" ruling for interlocutory appeal.

See Rubin 

.            The Museums then filed a

petition for permission to appeal under 28 U.S.C. § 1292(b), which

we denied.    Rubin v. Islamic Rep. of Iran, Nos. 08-8020 & 08-8021

(1st Cir. Aug. 11, 2008).          At the time, we believed that the

"blocked assets" question might be bound up with the factual

question of ownership and was best resolved, if necessary, after

the district court had determined who owned the antiquities.              

benefit of further factual development and, more

importantly, of briefing by OFAC, we find the issue dispositive.

In any event, this is the first opportunity the Museums have had to

raise their "blocked assets" argument on appeal.

            TRIA defines the phrase "blocked asset" as "any asset

seized or frozen by the United States . . . under sections 202 and

203 of the International Emergency Economic Powers Act" (IEEPA),

Pub.   L.   No.   95-223,   §§   202-203,   91   Stat.   1625,   1626   (1977)

(codified at 50 U.S.C. §§ 1701-1702).            TRIA § 201(d)(2)(A).      We

have described the IEEPA as codifying "Congress's intent to confer

broad and flexible power upon the President to impose and enforce

economic sanctions against nations that the President deems a


                                     -14-
threat to national security interests."          United States v. McKeeve,

,   10   (1st     Cir.   1997).   OFAC      is   responsible   for

administering sanctions imposed under the IEEPA.

             In 1979, in response to the Iranian hostage crisis,

President Carter issued an IEEPA-based executive order ("the 1979

order"), which OFAC later implemented though regulations, blocking

all transactions involving "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

Iran had "any interest of any nature whatsoever," unless OFAC

authorized the transaction.            31 C.F.R. § 535.201; see also Exec.

Order No. 12,170, 44 Fed. Reg. 65,729 (Nov. 14, 1979).

             OFAC's 1979 blocking order remains in place, but its

effect was significantly circumscribed by the 1981 Algiers Accords,

pursuant to which the United States and Iran resolved the hostage

crisis   and   the     United   States    promised   to    "revoke   all   trade

sanctions" that had been directed against Iran since November 1979

and to arrange "for the transfer to Iran of all Iranian properties

. . . located in the United States" that were not addressed by

other parts of the agreement. Declaration of the Government of the

Democratic and Popular Republic of Algeria, U.S.-Iran, Jan. 19,

1981, 20 I.L.M. 224, 227; see also 

.             As part

of the Accords, President Carter issued Executive Order 12,281

("the 1981 order"), which directed "[a]ll persons subject to the


                                        -15-
jurisdiction of the United States in possession or control of

properties, not including funds and securities, owned by Iran or

its   agencies,     instrumentalities,      or   controlled     entities"    to

"transfer such properties, as directed after the effective date of

this Order by the Government of Iran."           46 Fed. Reg. 7,923, 7,923

(Jan. 19, 1981).     The Algiers Accords automatically unblocked most

Iranian assets that existed in this country at the time. Weinstein

v. Islamic Rep. of Iran, 

, 55 (2d Cir. 2010).

           OFAC's     implementing    regulation      closely    mirrors    the

language of the 1981 order.        It requires "all persons subject to

the jurisdiction of the United States in possession or control of

properties, as defined in [31 C.F.R. § 535.333] . . . to transfer

such properties held on January 18, 1981 as directed after that day

by the Government of Iran."          31 C.F.R. § 535.215(a).           Section

535.333, in turn, defines the universe of "properties" unblocked by

the 1981 order: "all uncontested and non-contingent liabilities and

property   interests    of   the   Government    of   Iran,     its   agencies,

instrumentalities, or controlled entities, including debts."                

property interest cannot be "contested" under

section 535.333 unless "the holder thereof reasonably believes that



      5
       The "contested"/"uncontested" distinction in 31 C.F.R.
§ 535.333 was apparently meant to clarify that "Iran was not
entitled to possession of properties owned by others or if it had
only a partial or contingent interest in such property." Islamic
Rep. of Iran v. United States, 28 Iran-U.S. Cl. Trib. Rep. 112,
127, 

(1992).

                                     -16-
Iran does not have title or has only partial title to the asset."

October 23, 2001, such a belief may be

considered reasonable only if it is based upon a bona fide opinion,

in writing, of an attorney licensed to practice within the United

States stating that Iran does not have title or has only partial

title to the asset."           

narrow the issue, we must determine

whether the antiquities in the Museums' possession are "contested"

within the meaning of the OFAC regulations and therefore blocked

under the 1979 order (in which case they would be attachable under

TRIA), or whether they are "uncontested" and therefore unblocked

under the 1981 order (in which case they would not be attachable

under TRIA).6

               In   resolving        that     question,     the   district   court

unfortunately did not have the benefit of briefing by OFAC, which

only       became   involved    in    this    matter   on   appeal.    The   court

recognized that the 1981 order and regulations envision a "binary"

contest of ownership between Iran and an asset holder in the United

States.       Rubin 

.              The court, however,

read TRIA as inserting the interests of a third-party judgment

creditor into that equation.            An asset can become "contested," the


       6
       The plaintiffs have not claimed that any of the antiquities
at issue here qualify as "blocked assets" under the President's
February 2012 Iranian asset blocking order, see Exec. Order No.
13,599, 77 Fed. Reg. 6,659 (Feb. 5, 2012), or any other sanctions
regime.

                                            -17-
court   concluded,   where   the   judgment    creditor   asserts     Iran's

ownership of the property, 

the

absence of any contest between the actual holder and Iran," 

court's construction was based, in part, on the fact

that, under Massachusetts law, "[a] creditor's assertion that

property held by a putative trustee belongs to the debtor and may

be taken by the creditor for application against the debt is

fundamental to trustee process."        

appeal, OFAC directs our attention to the plain

language of the 1981 order and regulation, which require a transfer

only "as directed . . . by the Government of Iran."            46 Fed. Reg.

at 7,923; 31 C.F.R. § 535.215(a).              That, OFAC argues, is a

condition precedent for the rest of what the regulations envision.

Only if Iran directs the transfer of an asset being held in the

United States must the property holder transfer the asset, or

challenge Iran's ownership by obtaining an opinion of counsel, see

31 C.F.R. § 535.333(c), which would make the asset "contested,"

ownership is ascertained.           In the absence of

any claim by Iran, however, the asset remains "uncontested."              

  also   notes   that   TRIA   was   drafted    against   the

backdrop of the relevant regulations, not the other way around.

The regulations were last amended in 2001, a year before TRIA was

enacted.   See 66 Fed. Reg. 38,553 (July 25, 2001).            We agree with


                                   -18-
OFAC that it was therefore inappropriate for the district court to

interpret the regulations in light of the later-enacted TRIA.            See

Miles v. Apex Marine Corp., 

, 32 (1990) ("We assume that

Congress is aware of existing law when it passes legislation.").

That is particularly true given Congress's explicit reference to

the IEEPA, and by extension the OFAC regulations that implement

IEEPA-based   executive   orders,    through   its   use   of   the   phrase

"blocked assets" in TRIA.    TRIA § 201(d)(2)(A).

          Because Iran has never made a claim to, or directed

transfer of, any of the antiquities at issue here, Rubin 

n.3; Rubin 

, OFAC

argues that the antiquities cannot be "contested" for purposes of

31 C.F.R. § 535.333. We must defer to OFAC's interpretation unless

it is "plainly erroneous or inconsistent with the regulation[s]."

Chase Bank USA, N.A. v. McCoy, 

, 880 (2011) (citation

and internal quotation marks omitted).          The fact that blocked

assets play an important role in the conduct of United States

foreign policy may provide a further reason for deference to the

views of the executive branch in this case, see Rep. of Austria v.

Altmann, 

, 701-02 (2004); Estate of Heiser v. Islamic

Rep. of Iran, ___ F. Supp. 2d ___, 

, at *10 (D.D.C.

Aug. 31, 2012), but we need not rely on that alternate ground,

because we find OFAC's interpretation to be a reasonable one.




                                    -19-
            Two additional points bolster OFAC's view.        First, the

regulations clearly state that "property interests shall not be

deemed to be contested solely because they are subject to an

attachment," 31 C.F.R. § 535.333(d), and we have some doubt as to

whether the district court's holding can be squared with that

language.

            Second, we are not convinced that OFAC's interpretation

entirely "negate[s] TRIA's remedy as to judgment creditors of

Iran."   Rubin 

.        If Iran directed a

transfer of the antiquities, and the Museums contested ownership,

the antiquities might qualify as "blocked assets" within the

meaning of TRIA.    Furthermore, "Iran is the subject of numerous

sanctions and blocking programs," Levin v. Bank of N.Y., No. 09 CV

5900, 

, at *13 (S.D.N.Y. Mar. 4, 2011), and there may

well be other blocked Iranian assets that the plaintiffs can reach,

including   bank assets,   see,   e.g.,   

(allowing relatives of victim of Iran-sponsored terrorism to attach

assets of Bank Melli, an instrumentality of Iran); Weinstein v.

Islamic Rep. of Iran, 

, 61-62 (D.D.C. 2003)

(allowing survivors of suicide-bombing victim to attach assets held

in two bank accounts formerly used by Iranian consulates in the

United States).    The pool of assets available to the plaintiffs

does appear to be quite limited, see Estate of Heiser, 2012 WL




                                  -20-
3776705, at *6, which is certainly lamentable, but we cannot

rewrite the statutory or regulatory text.

          We therefore defer to OFAC's reasonable position that an

asset can be "contested" for purposes of 31 C.F.R. § 535.333 only

if Iran itself has claimed an interest in the asset.            See Chase

.     Iran has never made such a claim with

regard to the antiquities in the Museums' possession.          Thus, even

if we assume that those antiquities qualify as "assets of" Iran

under section 201(a) of TRIA, they would be "uncontested" assets

that were unblocked in 1981, pursuant to Executive Order 12,281.

The 1979 order and 31 C.F.R. § 535.201 are thus inapplicable here.

Because the plaintiffs have relied on no other authority to support

their claim that the antiquities are "blocked" within the meaning

of TRIA, we conclude that the antiquities are not attachable under

that statute.   TRIA §§ 201(a), (d)(2)(A).

          Having   reached   that    conclusion,   we   need   not   decide

whether the Museums' belief that Iran does not own the antiquities

could be "reasonable" in the absence of a "bona fide opinion, in

writing, of an attorney licensed to practice within the United

States stating that Iran does not have title or has only partial

title to the asset."   31 C.F.R. § 535.333(c); see Rubin II, 541 F.

Supp. 2d at 420-21.    The Museums would have had the duty to obtain

such an opinion only if Iran had made a demand for the antiquities




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and the Museums wished to contest ownership.                See 31 C.F.R.

§§ 535.215(a), 535.333(a).

                             III. Conclusion

           While we are mindful of the incident that gave rise to

the judgment here and the difficulty the plaintiffs are having

collecting on that judgment, the general rule is that foreign

sovereign property in the United States is immune from attachment

and execution.     See 28 U.S.C. § 1609.       TRIA carves out a narrow

exception to that rule, applicable only to "blocked assets," and

the   plaintiffs   have    failed   to   demonstrate     that   any   of   the

antiquities in the Museums' possession fall within that exception.

TRIA therefore does not nullify the antiquities' immunity from

execution under the FSIA, and the plaintiffs have waived any

challenge to that immunity on appeal.

           Thus,   while    we   disagree   with   the   district     court's

judgment that the antiquities qualify as "blocked assets" under

TRIA, Rubin II, 

, we affirm its conclusion that

the plaintiffs' Motion for Order of Attachment by Trustee Process

should be denied and that the Museums' motions to dissolve the

attachments should be granted.




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