GRABER, Circuit Judge:
The opinion filed August 26, 2015, and reported at 799 F.3d 1281, is withdrawn. Because the court's opinion is withdrawn, Appellant Bank Melli's petition for panel rehearing and petition for rehearing en banc is moot. A superseding opinion will be filed concurrently with this order. Further petitions for rehearing and petitions for rehearing en banc may be filed.
Approximately 90 United States citizens (or the representatives of their estates) are attempting to collect on unsatisfied money judgments that they hold against the Islamic Republic of Iran for deaths and injuries suffered in terrorist attacks sponsored by Iran. The assets that are the subject of this interpleader action are monies contractually owed to Bank Melli by Visa Inc. and Franklin Resources Inc. ("Franklin"). Bank Melli is an instrumentality of Iran. It asserts that Plaintiffs cannot execute on the assets (1) because Bank Melli enjoys sovereign immunity under the Foreign Sovereign Immunities Act of 1976 ("FSIA"), (2) because the relevant statutory exceptions to sovereign immunity may not be applied retroactively, (3) because the blocked assets are not property of Bank Melli, and (4) because Bank Melli is a required party that cannot be joined, thus requiring dismissal under Federal Rule of Civil Procedure 19. We disagree and, accordingly, affirm the judgment of the district court.
The jurisdiction of the United States over persons and property within its territory "is susceptible of no limitation not imposed by itself." Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 136, 3 L.Ed. 287 (1812). Accordingly, foreign sovereign immunity is "a matter of grace and comity rather than a constitutional requirement." Republic of Austria v. Altmann, 541 U.S. 677, 689, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004). Courts consistently "defer[] to the decisions of the political branches" on whether to take actions against foreign sovereigns and their instrumentalities. Id. (quoting Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983)).
The FSIA, 28 U.S.C. §§ 1330, 1602-1611, establishes a default rule that foreign states are immune from suit in United States courts. Id. § 1604. Congress
The FSIA includes many exceptions to its general rule of immunity. 28 U.S.C. §§ 1605-1607. Relevant here, in 1996, Congress added a new exception, stripping a foreign state of its sovereign immunity when (1) the United States officially designates the foreign state a state sponsor of terrorism and (2) the foreign state is sued "for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act." 28 U.S.C. § 1605A.
Iran was designated a terrorist party pursuant to section 6(j) of the Export Administration Act of 1979, 50 U.S.C. app. § 2405(j) (effective Jan. 19, 1984). Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1123 (9th Cir.2010); Weinstein v. Islamic Republic of Iran, 609 F.3d 43, 48 (2d Cir.2010). That designation means that Iran is not entitled to sovereign immunity for claims under § 1605A.
Separately, the FSIA addresses the immunity of sovereign property from execution and attachment. Subject to enumerated exceptions, a foreign state's property in the United States is immune from attachment and execution. 28 U.S.C. § 1609.
In First National City Bank v. Banco Para El Comercio Exterior de Cuba ("Bancec"), 462 U.S. 611, 620-21, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983), the Supreme Court concluded that the FSIA did not control whether and to what extent instrumentalities could be held liable for the debts of their sovereigns. Applying international law and federal common law, the Court held that "government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such." Id. at 626-27, 103 S.Ct. 2591. That rule, referred to as the "Bancec presumption," may be overcome only in limited circumstances. Id. at 628-34, 103 S.Ct. 2591. The federal courts later described five "Bancec factors" that may be considered in determining whether the presumption has been overcome in any given case. E.g., Flatow, 308 F.3d at 1071 n. 9.
Even after Congress added § 1605(a)(7) (now § 1605A) to the FSIA in 1996, successful plaintiffs struggled to enforce judgments against Iran when they were harmed by its terrorist activities. See, e.g., In re Islamic Republic of Iran Terrorism Litig., 659 F.Supp.2d 31, 49-58 (D.D.C.2009) (describing "The Never-Ending Struggle to Enforce Judgments
First, in 2002 Congress enacted the Terrorism Risk Insurance Act of 2002 ("TRIA"), Pub.L. No. 107-297, 116 Stat. 2322. Section 201(a) of the TRIA provides:
TRIA § 201(a) was codified as a statutory note to 28 U.S.C. § 1610 on "Treatment of Terrorist Assets."
Second, in 2008, Congress amended the FSIA as part of the National Defense Authorization Act for Fiscal Year 2008, Pub.L. No. 110-181, § 1083, 122 Stat. 3, 338. Among other changes, Congress added a new subsection to the FSIA, which provides in part that
28 U.S.C. § 1610(g)(1). For ease of reference, we refer to this section as "FSIA § 1610(g)."
Four groups of individuals sued the Islamic Republic of Iran for damages arising from deaths and injuries suffered in terrorist attacks sponsored by Iran; in each case, a final money judgment was entered in favor of the plaintiffs and against Iran. In Estate of Heiser v. Islamic Republic of Iran, 659 F.Supp.2d 20 (D.D.C.2009), and Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (D.D.C.2006), the plaintiffs secured judgments for more than $590 million for the 1996 bombing of the Khobar Towers in Saudi Arabia. In Acosta v. Islamic Republic of Iran, 574 F.Supp.2d 15 (D.D.C.2008), the plaintiffs received a judgment of more than $350 million because of a 1990 mass shooting. In Bennett v. Islamic Republic of Iran, 507 F.Supp.2d 117 (D.D.C.2007), the plaintiffs obtained a judgment for damages of nearly $13 million for Iran's role in the 2002 bombing of a cafeteria at Hebrew University in Jerusalem. And in Greenbaum v. Islamic Republic of Iran, 451 F.Supp.2d 90 (D.D.C.2006), the plaintiffs were awarded almost $20 million for damages suffered as a result of the bombing of a Jerusalem restaurant in 2001. Collectively,
Bank Melli, Iran's largest financial institution, is wholly owned by the government of Iran. It is undisputed that Bank Melli qualifies as an instrumentality of Iran under the FSIA. Bank Melli was not named as a defendant in any of the four cases described above and was not itself alleged to have been involved in the underlying terrorist events. On October 25, 2007, the United States Department of the Treasury, Office of Foreign Assets Control exercised its authority under Executive Order No. 13,382, 70 Fed.Reg. 38,567 (June 28, 2005), to block Bank Melli's assets in the United States because of its involvement in Iran's nuclear and missile industries. Bank Melli's assets also are blocked pursuant to a 2012 Executive Order blocking the property of Iran and of Iranian financial institutions. Executive Order No. 13,599, 77 Fed.Reg. 6659 (Feb. 8, 2012).
Visa and Franklin owe about $17.6 million to Bank Melli pursuant to a commercial relationship that involves the use of Visa credit cards in Iran. Visa and Franklin have not turned the funds over to Bank Melli only because the funds are blocked. The Bennett judgment creditors filed a complaint against Visa and Franklin, seeking to attach and execute against the blocked assets. Visa and Franklin responded by initiating this interpleader action, naming as defendants Bank Melli and the three other sets of judgment creditors. Visa and Franklin sought a determination of the rights to the blocked assets in their possession and a discharge of Visa and Franklin with regard to those assets. After Bank Melli entered its appearance, it moved to dismiss the action.
Bank Melli made four arguments for dismissal, each of which the district court rejected. The court held: (1) TRIA § 201(a) and FSIA § 1610(g) enable the judgment creditors to attach the monies owed to Bank Melli; (2) TRIA § 201(a) and FSIA § 1610(g) do not impose retroactive liability; (3) the blocked assets constitute property of Bank Melli; and (4) Bank Melli was not a required party under Federal Rule of Civil Procedure 19. Bennett v. Islamic Republic of Iran, 927 F.Supp.2d 833 (N.D.Cal.2013). The district court denied the motion to dismiss and certified the order for interlocutory appeal under 28 U.S.C. § 1292(b). Bennett, 927 F.Supp.2d at 845-46.
We review de novo: questions of statutory construction, Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir.2012); a district court's ruling on a motion to dismiss for failure to state a claim or for lack of subject matter jurisdiction, Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir.2011); the question whether a statute may be applied retroactively, Scott v. Boos, 215 F.3d 940, 942 (9th Cir.2000); and legal determinations underlying a district court's decision whether an action can proceed in the absence of a required party under Rule 19, Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir.1996).
We hold that TRIA § 201(a) permits judgment creditors to attach assets
Bank Melli disputes this reading of § 201(a), arguing instead that it applies only to instrumentalities that are alter egos of the state; that is, Bank Melli argues that the Bancec presumption against the attachment of assets held by state instrumentalities applies. Bank Melli reasons that, because "including" is a term of illustration, the words that follow are merely an example of the main preceding principle. That observation is true but is of no assistance to Bank Melli. By listing "the blocked assets of any ... instrumentality of that terrorist party" as a specific example of assets that are "subject to execution or attachment ... in order to satisfy" a money judgment obtained under § 1605A or 1605(a)(7), Congress clearly instructed courts to allow the instrumentality's blocked assets to be reached. Congress also instructed courts to allow these assets to be reached "[n]otwithstanding any other provision of law" — that is, regardless of the usual fiction embodied in Bancec. Congress purposely overrode the Bancec presumption in this context and abrogated attachment immunity with respect to the blocked assets of instrumentalities of designated state sponsors of terrorism. Section 201(a) permits the judgment creditors to attach the assets of an instrumentality of a state sponsor of terrorism. Accordingly, the blocked assets of Bank Melli that are at issue in this case may be attached.
FSIA § 1610(g) allows attachment of and execution against property held by a foreign terrorist state's instrumentality "that is a separate juridical entity," "regardless of" five factors. As noted above,
But Bank Melli contends that, because § 1610(g) makes assets subject to attachment and execution only "as provided in this section," it is not an independent exception to the immunity granted by 28 U.S.C. § 1609. Bank Melli reasons that subsection (g) applies only if some other part of § 1610 provides for attachment and execution. Bank Melli argues that its assets cannot be attached or executed upon because the assets at issue in this case were not "used for a commercial activity in the United States," a requirement in § 1610(a), and Bank Melli has not itself "engaged in commercial activity in the United States," a requirement in § 1610(b). We are not persuaded.
We hold that subsection (g) contains a freestanding provision for attaching and executing against assets of a foreign state or its agencies or instrumentalities. Subsection (g) covers a different subject than § 1610(a) through (e): by its express terms, it applies only to "certain actions," specifically, judgments "entered under section 1605A." (Emphasis added.) In turn, § 1605A revokes sovereign immunity for damages claims against a foreign state for personal injury or death caused by "torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support" for such an act. By definition, such claims do not arise from commercial activity; they arise from acts of torture (and the like). Section 1610(g) requires only that a judgment under § 1605A have been rendered against the foreign state; in that event, both the property of the foreign state and the property of an agency or instrumentality of that state are subject to attachment and execution. See Peterson, 627 F.3d at 1123 n. 2 (stating 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, whereas before they could reach only property belonging to Iran"). To the extent that subsection (g) is inconsistent with subsection (a) or (b), subsection (g) governs because the particular (judgments entered under § 1605A) controls over the general (all judgments entered after a certain date). Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384-85, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992).
When subsection (g) refers to attachment and execution of the judgment "as provided in this section," it is referring to procedures contained in § 1610(f).
Bank Melli argues, and our colleague agrees, that our reading of § 1610(g) renders § 1610(a)(7) and (b)(3) superfluous.
Two Seventh Circuit cases support our conclusion in this regard. In Wyatt v. Syrian Arab Republic, 800 F.3d 331, 343 (7th Cir.2015), the court held that the plaintiffs need not comply with § 1608(e) when proceeding under § 1610(g). The court noted that § 1608(e) is part of a "more general process" applicable to "suits other than those for state-sponsored terrorism, such as more ordinary contract or tort cases arising out of a foreign state's commercial activities." Id. at 333. Section 1610(g), the court noted, "contains provisions specific to claims for state-sponsored terrorism." Id. Those specific provisions allow plaintiffs with a judgment against a state sponsor of terrorism, obtained pursuant to § 1605A, to attach and execute the judgment against property of the foreign state and against property of any agency and instrumentality of the state. Id. The other provisions of § 1610, contained in subsections (a) through (c), establish a general process for judgments
Similarly, the court held in Gates that a plaintiff proceeding under § 1610(g) need not comply with § 1610(c). The court wrote in part:
Gates, 755 F.3d at 576.
Regardless of canons of construction — such as the principle that a specific statute takes precedence over a general one — our ultimate search is for congressional intent. Chickasaw Nation v. United States, 534 U.S. 84, 94, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001). And it is quite clear that Congress meant to expand successful plaintiffs' options for collecting judgments against state sponsors of terrorism.
We acknowledge that § 1610 as a whole is ambiguous. In that circumstance, we may consider legislative history. Id. at 91-92, 122 S.Ct. 528; United States v. Pub. Utils. Comm'n, 345 U.S. 295, 315, 73 S.Ct. 706, 97 L.Ed. 1020 (1953). That history suggests that § 1610(g) was meant to allow attachment and execution with respect to any property whatsoever of the foreign state or its instrumentality. Senator Lautenberg, one of the sponsors of the bill that became § 1610(g), stated that the provision would "allow[] attachment of the assets of a state sponsor of terrorism to be made upon the satisfaction of a `simple ownership' test." 154 Cong. Rec. S54-01 (Jan. 22, 2008) (statement of Sen. Lautenberg). The House Conference Report for a substantially similar earlier version of the bill noted that the provision "would ... expand the ability of claimants to seek recourse against the property of that foreign state," in part "by permitting any property in which the foreign state has a beneficial ownership to be subject to execution of that judgment." H.R.Rep. No. 11-447, at 1001 (2007) (Conf. Rep.). The bill, it continued, "is written to subject any property interest in which the foreign state enjoys a beneficial ownership to attachment and execution." Id. We have already noted that the basic purpose of adding § 1610(g) was to enable plaintiffs who have established a foreign state's liability under § 1605A and its predecessor, for terrorist acts, to collect on their judgments. As Senator Lautenberg put it, the bill was meant "to facilitate victims' collection of their damages from state sponsors of terrorism." 154 Cong. Rec. S54-01 (Jan. 22, 2008) (statement of Sen. Lautenberg). Our interpretation of § 1610(g) more fully furthers that fundamental aim.
Bank Melli also makes three other arguments regarding § 1610(g). We can dispose of those arguments easily.
(1) The district court's failure to discuss expressly whether to grant Bank Melli discretionary relief under the "innocent party" provision of § 1610(g)(3) does not mean that the court failed to consider whether that provision applied. Bank Melli made its § 1610(g)(3) argument to the district court, and we presume that the court understood its authority but declined
(2) There is no conflict between § 1610(g) and the 1955 Treaty of Amity between the United States and Iran, which requires that the United States respect the juridical status of Iranian companies, protect their property in accordance with international law, and not discriminate against them. Treaty of Amity, Economic Relations and Consular Rights Between the United States of America and Iran, Aug. 15, 1955, 8 U.S.T. 899, 902-03. As the Second Circuit held, that treaty provision is intended simply to ensure that foreign corporations are on equal footing with domestic corporations. Weinstein, 609 F.3d at 53. Even if the two provisions were inconsistent, when a treaty and a later-enacted federal statute conflict, the subsequent statute controls to the extent of the conflict. Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (per curiam).
(3) Allowing the Heiser plaintiffs to obtain relief under § 1610(g) by converting their § 1605(a)(7) judgment to a § 1605A judgment does not violate separation of powers principles. Bank Melli's reliance on Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995), is misplaced. There, the court held that Congress could not require federal courts to reopen final judgments. But here, the judgment was not reopened. Instead, the Heiser plaintiffs have a new collection tool; they can enforce their final judgment against Iran by attaching and executing on the property of Iran's instrumentality. In essence, the statute gives more effect to the final judgment, rather than attempting to revise or rescind that judgment.
Bank Melli next argues that the judgment creditors cannot use TRIA § 201(a) or FSIA § 1610(g) because the terrorist acts that underlie the judgments occurred before the enactment of those statutes. The general default rule is that a law that increases substantive liability for past conduct does not operate retroactively. Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).
But the statutes do not impose new liability on Iran. Section 1605(a)(7) was in effect at the time of the terrorist acts in question. Rather, the statutes simply permit additional methods of collection. See id. at 275, 114 S.Ct. 1483 (noting that the default rule does not apply to rules of procedure because of "diminished reliance interests").
Even if TRIA § 201(a) and FSIA § 1610(g) are viewed as imposing new liability retroactively, the default rule is different for statutes that govern foreign sovereign immunity. In Altmann, 541 U.S. at 692, 124 S.Ct. 2240, the Supreme Court concluded that the Landgraf presumption does not apply to such statutes. To the contrary, when it comes to sovereign immunity for both foreign states and their agencies and instrumentalities, there is a presumption in favor of retroactivity "absent contraindications" from Congress. Id. at 696, 124 S.Ct. 2240.
Here, there are no such contraindications. In fact, the opposite is true. The purpose of the statutes at issue was to enable not just future litigants, but also current judgment creditors to collect on the final judgments that they already
Bank Melli also contends that TRIA § 201(a) and FSIA § 1610(g) do not permit attachment of the assets here because Visa and Franklin own the blocked assets; Bank Melli does not. Under TRIA § 201(a), to be subject to execution or attachment, the blocked assets must be "assets of" the instrumentality. Similarly, § 1610(g) applies to "the property of" the instrumentality.
Like most courts, we look to state law to determine the ownership of assets in this context. Peterson, 627 F.3d at 1130-31; see also Calderon-Cardona v. Bank of N.Y. Mellon, 770 F.3d 993, 1000-01 (2d Cir.2014) (looking to New York law to determine what type of interest rendered property attachable under § 1610(g)), cert. denied, ___ U.S. ___, 136 S.Ct. 893, 193 L.Ed.2d 809 (2016); Walker Int'l Holdings, Ltd. v. Republic of Congo, 415 F.3d 413, 415 (5th Cir.2005) (applying Texas law to determine attorney fees award in FSIA action); Hegna v. Islamic Republic of Iran, 380 F.3d 1000, 1007 (7th Cir.2004) (applying Illinois law to decide whether property interest was open to challenge in action under FSIA); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara ("Pertamina"), 313 F.3d 70, 83 (2d Cir.2002) (applying New York law to determine what actions are subject to enforcement and available to judgment creditors). Here, California law applies. As we held in Peterson, California law authorizes a court to order a judgment debtor to assign to the judgment creditor a right to payments that are due or will become due, even if the right is conditioned on future developments. 627 F.3d at 1130-31; Cal.Civ.Proc. Code § 482.080(a)(2) (providing that a court may order a defendant subject to a writ of attachment to turn over either "evidence of title to property of or a debt owed to the defendant"); id. § 680.310 ("`Property' includes real and personal property and any interest therein."); id. § 708.210 (permitting a judgment creditor to bring an action against a third party to whom the judgment debtor owes money "to have the interest or debt applied to the satisfaction of the money judgment"); id. § 708.510(a) (authorizing a court to "order the judgment debtor to assign to the judgment creditor ... all or part of a right to payment due"). That is precisely the situation in the present case: Bank Melli has a contractual right to obtain payments from Visa and Franklin. Under California law, those assets are property of Bank Melli and may be assigned to judgment creditors.
But even if federal law should govern this question, see Heiser v. Islamic Republic of Iran, 735 F.3d 934, 940 (D.C.Cir.2013) (creating federal rule of decision to interpret ownership requirements in FSIA, based in part on U.C.C. Article 4A and common law principles), Bank Melli would not succeed. Federal law and California law are aligned.
First, we note that Congress has used expansive wording to suggest that immediate and outright ownership of assets is not required. In the TRIA, Congress provided that "[n]othing in this subsection
Second, in Heiser, only foreign nationals, and not a foreign country, had an interest in the blocked funds held by intermediary banks. "Iranian entities were not the originators of the funds transfers. Nor were they the ultimate beneficiaries." Heiser, 735 F.3d at 936 (footnote omitted). By contrast, here, Bank Melli is the ultimate beneficiary; Visa and Franklin owe money to Bank Melli for services rendered pursuant to an agreement between them. Accordingly, Bank Melli has an interest in the blocked assets.
In summary, California law applies. Under California law, money owed to Bank Melli may be assigned to judgment creditors. Even if federal law applies, under the Heiser court's rationale, attachment and execution are allowed here because Bank Melli is the intended contractual beneficiary of the contested funds.
Finally, Bank Melli relies on Federal Rule of Civil Procedure 19 to support its request for dismissal. That rule provides that a person must be joined as a party if the person "claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may ... impair or impede the person's ability to protect the interest." Fed.R.Civ.P. 19(a). And, if the "person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed." Fed.R.Civ.P. 19(b).
Bank Melli argues that this case must be dismissed because it is a required party that cannot be joined and, further, that the action cannot proceed without it "in equity and good conscience." But, because TRIA § 201(a) and FSIA § 1610(g) confer jurisdiction by creating exceptions to sovereign immunity, Bank Melli can be joined in this action. Thus it does not matter whether Bank Melli is otherwise a required party under Rule 19(a); dismissal is not required.
According to Bank Melli, Republic of the Philippines v. Pimentel, 553 U.S. 851, 128 S.Ct. 2180, 171 L.Ed.2d 131 (2008), requires dismissal. We disagree. A class of victims of human rights abuses in the Republic of the Philippines won a $2 billion default judgment against the Estate of Ferdinand Marcos, the former president of that country. Id. at 857-58, 128 S.Ct. 2180. The class attempted to enforce the judgment by attaching assets owed to Merrill Lynch by a bank incorporated by Marcos personally. Id. at 858, 128 S.Ct. 2180. The Philippines claimed ownership of the bank, and therefore the disputed assets, because the bank had been incorporated through a misuse of public office. Id. The Philippines also claimed immunity
This case plainly is distinguishable. In Pimentel, the Republic was a required party that could not be joined because of sovereign immunity. Here, Bank Melli does not enjoy sovereign immunity, so it can be joined as a party, whether or not it is a required party. Unlike the Republic in Pimentel, therefore, Bank Melli is able to adjudicate its claim to the contested assets.
We hold: (1) TRIA § 201(a) and FSIA § 1610(g) authorize attachment and execution of the monies owed to Bank Melli. (2) Those statutes do not impose liability retroactively but, even if they are viewed as doing so, Altmann establishes a presumption in favor of retroactivity for statutes governing sovereign immunity, which is not rebutted here. (3) California law governs the ownership question; the blocked assets are property of Bank Melli under principles of California law and, thus, are subject to attachment and execution under TRIA § 201(a) and FSIA § 1610(g). The same result would obtain even if federal law governed. (4) Because Bank Melli can be joined in this action, the dismissal provision of Federal Rule of Civil Procedure 19 does not apply.
BENSON, Senior District Judge, concurring in part and dissenting in part:
I concur with the majority that § 201(a) of the Terrorism Risk Insurance Act ("TRIA") and § 1610 of the Foreign Sovereign Immunities Act ("FSIA") permit the judgment creditors in this case to attach and execute against monies owed to Bank Melli. However, I respectfully believe the majority erred in finding § 1610(g) to be a freestanding immunity exception under FSIA. In my view, judgment creditors relying on § 1610(g) are able to proceed, regardless of Bank Melli's sovereign immunity, because the judgment creditors have sufficiently alleged Bank Melli is engaged in commerce in the United States within the meaning of § 1610(b)(3) of FSIA.
FSIA contains "extensive procedural protections for foreign sovereigns in United States courts." Wyatt v. Syrian Arab Republic, 800 F.3d 331, 333 (7th Cir.2015). Specifically, § 1609 of FSIA provides a general presumption that property of a foreign state and the property of an instrumentality or agency of a foreign state is immune from execution and attachment in United States courts. See 28 U.S.C. § 1609; 28 U.S.C. § 1603(a). In turn, § 1610 provides a series of exceptions to this general rule.
Prior to 2008, § 1610 provided different rules for attachment immunity depending on whether the party was seeking immunity as the foreign state or as an agency or instrumentality of a foreign state. Regarding foreign states, § 1610(a) denied immunity where: (1) a judgment creditor obtained a judgment against the foreign state; (2) the property of the foreign state is located in the United States; (3) the property is used for "a commercial activity" in the United States; and (4) one of § 1610(a)'s seven avenues for abrogating immunity applied. See 28 U.S.C.
Prior to 2008, the judgment creditors in this case would have been required to obtain a judgment against Bank Melli to utilize the immunity waiver provisions under § 1610(b) to attach Bank Melli's property.
In 2008, Congress amended FSIA, adding § 1610(g) and § 1605A. National Defense Authorization Act for Fiscal Year 2008, Pub.L. No. 110-181, § 1083, 122 Stat. 3, 338 (2008). The purpose of the amendments was to relax the protections of § 1610 in cases of state sponsored terrorism to "make it easier for terrorism victims to obtain judgments and to attach assets." Gates v. Syrian Arab Republic, 755 F.3d 568, 576 (7th Cir.2014); In re Islamic Republic of Iran Terrorism Litig., 659 F.Supp.2d 31, 62 (D.D.C.2009) (noting, "these latest additions to ... FSIA demonstrate that Congress remains focused on eliminating those barriers that have made it nearly impossible for plaintiffs in these actions to execute civil judgments against Iran or other state sponsors of terrorism").
Under § 1610(g), if a judgment creditor obtains a judgment under § 1605A, the property of the foreign state and "the property of an agency or instrumentality of such a state, including property that is a separate juridical entity ... is subject to attachment ... and execution, upon that judgment as provided in this section, regardless" of five factors. 28 U.S.C. § 1610(g)(1) (emphasis added). The five factors enumerated in § 1610(g)(A) through (E) reflect the Bancec presumption, which requires this Court to treat government entities established as separate juridical entities distinct from their sovereigns. See First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 620-21, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983); Flatow v. Islamic Republic of Iran, 308 F.3d 1065, 1071 n. 9 (9th Cir.2002) (outlining the Bancec factors (citing Walter Fuller Aircraft Sales, Inc. v. Republic of the Philippines, 965 F.2d 1375, 1380 n. 7 (5th Cir.1992))).
Section 1610(g) leads to two straightforward conclusions under FSIA. First, if a party obtains a § 1605A judgment against a state sponsor of terror, the Bancec presumption is eliminated, which permits a court to attach and execute against the property of the agency or instrumentality to satisfy the judgments against the foreign state. See Estate of Heiser v. Islamic Republic of Iran, 885 F.Supp.2d 429, 442 (D.D.C.2012) ("Section § 1610(g) subparagraphs (A)-(E) explicitly prohibit consideration of each of the five Bancec factors."); aff'd sub nom. Heiser v. Islamic Republic of Iran, 735 F.3d 934 (D.C.Cir.2013). Second, the language "as provided in this section" requires a judgment creditor to find an existing mechanism of attachment under § 1610. Section 1610(g) does not create a new avenue for attachment under FSIA; rather, § 1610(g) broadens the force of § 1610's existing avenues for attachment by eliminating the legal fiction that Bank Melli is a separate juridical entity from Iran.
In this case, judgment creditors relying on § 1610(g) may proceed to attach Bank Melli's property because Bank Melli's property is not immune from attachment by virtue of § 1610(b)(3). Section 1610(b)(3) eliminates attachment immunity
Section 1603(c) of FSIA defines commercial activity as: "either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." 28 U.S.C. § 1603(c) (emphasis added). Bank Melli entered into a contract with an American company to provide an American company a commercial service. At this stage in the litigation, the Court can conclude that the judgment creditors relying on § 1610(g) have sufficiently alleged Bank Melli is engaged in commercial activity in the United States.
The majority disagrees with the aforementioned interpretation and concludes that § 1610(g) creates a freestanding immunity exception under FSIA. The majority believes a § 1605A judgment creditor may attach Bank Melli's property regardless of any commercial component under § 1610(a) or § 1610(b). In my view, respectfully, the majority misses the mark in three important respects.
First, the majority erroneously finds that § 1610(g) is a freestanding exception to immunity by concluding:
[Maj. Op., p. 1141.] In doing so, the majority misinterprets the operation of § 1610(a) and (b) waivers in the context of § 1605A judgments. Under § 1610(b)(3), a judgment creditor can attach property where the instrumentality is engaged in commercial activity in the United States. Furthermore, § 1610(b)(3) provides that attachment immunity is eliminated "regardless of whether the property is or was involved with the act upon which the claim is based." 28 U.S.C. § 1610(b)(3) (emphasis added). Therefore, a § 1605A judgment allows a judgment creditor to get immunity waived for any property where the instrumentality is engaged in commerce in the United States, regardless whether the property was involved in the actions that gave rise to the § 1605A waiver of immunity against the foreign state. Therefore, Bank Melli's property does not need to be involved in terrorism to abrogate attachment immunity under § 1610(b)(3).
Second, the majority concludes that the "as provided in this section" language
The majority ignores the avenues for exemption under § 1610(a)(7) and § 1610(b)(3). Section 1610(a)(7) and § 1610(b)(3) provide immunity, in addition to requiring some interplay with commerce, where "the judgment relates to a claim for which the foreign state is not immune under section 1605A...." If a § 1605A judgment creditor can waive attachment immunity under § 1610(g) without proving the property is used in commerce or the instrumentality is engaged in commerce in the United States, § 1610(a)(7) and § 1610(b)(3) are rendered superfluous and obsolete. Conversely, recognizing § 1610(g)'s limited purpose was to eliminate the Bancec presumption ensures this Court gives effect to every clause and word in § 1610 while honoring the purpose of the 2008 FSIA amendments.
Finally, the majority's holding ignores the practical limitation the commerce requirement places on § 1605A judgments. Reading § 1610(g) as a freestanding immunity exception does not just relax FSIA in the context of terrorism — it eliminates any immunity protection under FSIA for state sponsors of terror and their instrumentalities. For example, in Rubin v. Islamic Republic of Iran, American citizens sued and obtained default judgments against Iran for injuries and losses that arose out of a suicide bombing carried out by Hamas in Israel. 33 F.Supp.3d 1003, 1006 (N.D.Ill.2014). The Rubin plaintiffs sought to "attach and execute on numerous ancient Persian artifacts" in possession of two museums in the United States to satisfy their default judgments against Iran. Id. Like the judgment creditors in this case, the Rubin plaintiffs argued that § 1610(g) is a freestanding immunity exception and, therefore, the plaintiffs may attach Iran's artifacts to satisfy their judgments. Id. at 1013.
The court disagreed, finding: "The plain language indicates that Section 1610(g) is not a separate basis of attachment, but rather qualifies the previous subsections." Id. The court concluded, "the purpose of Section 1610(g) is to counteract the Supreme Court's decision in Bancec, and to allow execution against the assets of separate juridical entities regardless of the protections Bancec may have offered." Id. Currently, the Rubin case is pending appeal in the Seventh Circuit. Rubin v. Islamic Republic of Iran, 33 F.Supp.3d 1003 (N.D.Ill.2014), appeal docketed, No. 14-1935 (7th Cir. Apr. 25, 2014).
Surely this Court's holding will be argued as precedent to allow the Rubin plaintiffs to seize Persian artifacts to be auctioned off to satisfy the Rubin plaintiffs' default judgments. This would be an unjustified and unfortunate result. When Congress amended FSIA, the intention was to eliminate the Bancec presumption and relax the rigidity of § 1610 to make it
In sum, I would require judgment creditors relying on § 1610(g) to satisfy one of § 1610's existing avenues for abrogating attachment immunity. In this case, the judgment creditors have done that. The judgment creditors have sufficiently alleged Bank Melli is engaged in commerce in the United States within the meaning of § 1610(b)(3).
Flatow, 308 F.3d at 1071 n. 9 (quoting Walter Fuller Aircraft Sales, Inc. v. Republic of the Philippines, 965 F.2d 1375, 1380 n. 7 (5th Cir.1992)).
