Rubin v. Islamic Republic of Iran ( 2013 )


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  •           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, 
    281 F. Supp. 2d 258
     (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," 
    id.
     § 1609.
    The 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, 
    456 F. Supp. 2d 228
    , 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 
    id.
     § 1610(a)(7); and (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), 
    456 F. Supp. 2d 228
     (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), 
    541 F. Supp. 2d 416
     (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 II, 
    541 F. Supp. 2d at 421
    .      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), 
    810 F. Supp. 2d 402
    , 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.      
    Id. at 404-06
    .   The
    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)," 
    id.
          §   1610(a)(7).     The    plaintiffs     argued     before   the
    district court that the antiquities fell within the scope of that
    exception.     See Rubin I, 
    456 F. Supp. 2d at 233-34
    .2             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 I, 
    456 F. Supp. 2d at
    231-
    32; see also Walters v. Indus. & Commercial Bank of China, Ltd.,
    
    651 F.3d 280
    , 290 (2d Cir. 2011); Rubin v. Islamic Rep. of Iran,
    
    637 F.3d 783
    , 801 (7th Cir. 2011); Peterson v. Islamic Rep. of
    Iran, 
    627 F.3d 1117
    , 1128-29 (9th Cir. 2010); Walker Int'l Holdings
    Ltd. v. Rep. of Congo, 
    395 F.3d 229
    , 233 (5th Cir. 2004).
    -9-
    § 1610 applies only where it is the foreign sovereign who engages
    in the commercial activity."   Id. at 234.
    In 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, 
    270 F.R.D. 7
    , 9 (D.D.C. 2010). However, the
    court did not receive the Museums' letter until the day it granted
    the plaintiffs' motion, 
    id.
     at 9 n.2, and it denied as untimely the
    -10-
    Iran, 
    270 F.R.D. 7
    , 9 (D.D.C. 2010).     The Massachusetts district
    court issued its initial immunity ruling in this case in 2006, see
    Rubin I, 
    456 F. Supp. 2d 228
    , 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 II, 
    541 F. Supp. 2d at 421
    , and the case
    continued before the Massachusetts district court well into 2011,
    see Rubin III, 
    810 F. Supp. 2d 402
    .
    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, 
    id. at 12
    .
    4
    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., 
    659 F.3d 151
    , 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, 
    258 F.3d 35
    , 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, 
    618 F.3d 19
    , 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., 
    845 F. Supp. 2d 553
    , 562-68 (S.D.N.Y. 2012), and Hausler v.
    JP Morgan Chase Bank, N.A., 
    740 F. Supp. 2d 525
    , 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, 
    556 U.S. 366
    , 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., 
    651 F.3d 167
    , 170 (1st Cir. 2011); Ungar v. Palestine
    Liberation Org., 
    402 F.3d 274
    , 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 II, 
    541 F. Supp. 2d at 421
    .            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.              
    Id.
    Now, with the 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,
    
    131 F.3d 1
    ,   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 Elahi, 
    556 U.S. at 370
    .             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, 
    609 F.3d 43
    , 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."                
    Id.
    § 535.333(a).5      A 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 WL 928957
     (1992).
    -16-
    Iran does not have title or has only partial title to the asset."
    
    Id.
     § 535.333(c).        "After 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."           Id.
    Thus, to further 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 II, 
    541 F. Supp. 2d at 419
    .              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, 
    id. at 419-20
    , "notwithstanding the
    absence of any contest between the actual holder and Iran," 
    id. at 419
    .    The 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."        
    Id. at 420
    .
    On 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,"
    
    id.,
     at least until ownership is ascertained.           In the absence of
    any claim by Iran, however, the asset remains "uncontested."              
    Id.
    § 535.333(a).
    OFAC   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., 
    498 U.S. 19
    , 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 III, 
    810 F. Supp. 2d at
    406 n.3; Rubin II, 
    541 F. Supp. 2d at 420
    , 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, 
    131 S. Ct. 871
    , 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, 
    541 U.S. 677
    , 701-02 (2004); Estate of Heiser v. Islamic
    Rep. of Iran, ___ F. Supp. 2d ___, 
    2012 WL 3776705
    , 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 II, 
    541 F. Supp. 2d at 420
    .        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, 
    2011 WL 812032
    , 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.,   Weinstein,   
    609 F.3d at 56
    (allowing relatives of victim of Iran-sponsored terrorism to attach
    assets of Bank Melli, an instrumentality of Iran); Weinstein v.
    Islamic Rep. of Iran, 
    274 F. Supp. 2d 53
    , 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
    Bank, 
    131 S. Ct. at 880
    .     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
    -21-
    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, 
    541 F. Supp. 2d 416
    , 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.
    -22-