United States v. Assa Co. Ltd. ( 2019 )

17‐3658
United States v. Assa Co. Ltd.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term 2018
(Argued: May 1, 2019 | Decided: August 9, 2019)
Docket No. 17‐3658
UNITED STATES OF AMERICA, RENAY FRYM, STUART E. HERSH,
ABRAHAM MENDELSON, DANIEL MILLER, ELENA ROZENMAN, NOAM
ROZENMAN, TZVI ROZENMAN, DEBORAH RUBIN, JENNY RUBIN,
DANIEL MILLER, CARLOS ACOSTA, MARIA ACOSTA, TOVA ETTINGER,
IRVING FRANKLIN, BNORMAN KAHANE, ETHEL J. GRIFFIN,
Plaintiffs‐Appellees,
CARLOS ACOSTA, ET AL.,
Claimants‐Appellees,
v.
ASSA CO. LTD., ASSA CORPORATION,
Defendants‐Appellants,
ALL RIGHT, TITLE, AND INTEREST OF ASSA CORPORATION, ET AL.,
Defendants‐in‐rem.
______________
Before:
PARKER, WESLEY, and CHIN, Circuit Judges.
This civil‐forfeiture appeal asks, among other things, whether the United
States District Court for the Southern District of New York (Forrest, J.) erred by
exercising subject matter jurisdiction over a foreign state’s property or abused its
discretion by rejecting the Defendants‐Appellants’ statute‐of‐limitations defense
sua sponte. We hold that the district court had jurisdiction because the Foreign
Sovereign Immunities Act does not foreclose in rem civil‐forfeiture suits against a
foreign state’s property. However, the court abused its discretion by sua sponte
resolving the statute‐of‐limitations issue without providing the Defendants‐
Appellants notice or an opportunity to defend themselves. An accompanying
summary order considers, and rejects, the Defendants‐Appellants’ additional
challenges. We AFFIRM in part, VACATE in part, and REMAND for further
proceedings consistent with this opinion.
_________________
PETER I. LIVINGSTON, Anderson Kill P.C., New York, NY (Deborah
B. Koplovitz, Anderson Kill P.C., New York, NY; Donald F.
Luke, Marjory T. Herold, Jaffe & Asher LLP, New York, NY, on
the brief), for Defendants‐Appellants.
DANIEL M. TRACER, Assistant United States Attorney (Michael D.
Lockard, Daniel B. Tehrani, Assistant United States Attorneys,
on the brief), for Geoffrey S. Berman, United States Attorney for
the Southern District of New York, New York, NY.
_________________
WESLEY, Circuit Judge:
In 2013, the United States District Court for the Southern District of New
York (Forrest, J.) ordered via summary judgment the forfeiture of certain property
interests held by the Alavi Foundation, 650 Fifth Avenue Company, and
2
Defendants‐Appellants Assa Co. Ltd. and Assa Corporation (collectively, “Assa”).
Three years later, we vacated the judgment as it pertained to Alavi and 650 Fifth
Ave. Co. because, among other things, the district court had sua sponte rejected
their statute‐of‐limitations defense without providing them notice or an
opportunity to respond. In re 650 Fifth Ave. & Related Props., 830 F.3d 66, 75 (2d Cir.
2016). Although these errors also applied to Assa, the judgment against it was
unaffected because Assa did not appeal at that time. Id. at 86 n.17.
After further proceedings not involving Assa, the judgment became final
and Assa appealed. In addition to challenging the sua sponte denial of its statute‐
of‐limitations defense, Assa argues that the district court lacked subject matter
jurisdiction because, in its view, a foreign state’s property is immune from in rem
civil‐forfeiture suits under the Foreign Sovereign Immunities Act (“FSIA”). Assa
also argues that the district court abused its discretion by denying its motion to
stay the proceeding and through various discovery orders.
The district court had subject matter jurisdiction. However, for substantially
the same reasons we stated three years ago as to Alavi and 650 Fifth Ave. Co., the
court abused its discretion by deciding the statute‐of‐limitations issue without
providing Assa notice and an opportunity to respond. An accompanying
3
summary order explains why we find no abuse of discretion in the court’s denial
of Assa’s motion to stay or in its various challenged discovery orders.
We affirm in part, vacate in part, and remand for further proceedings
consistent with this opinion.
BACKGROUND1
Assa Corporation is a New York corporation formed in 1989. It is wholly
owned by Assa Co. Ltd., a corporation formed in Jersey, Channel Islands. Assa Co.
Ltd. was originally owned by Harter Holdings Ltd., which Bank Melli acquired in
1993. In 1995, Bank Melli transferred Harter to Davood Shakeri and Fatemeh
Aghamiri. The parties dispute whether Bank Melli, which is owned and controlled
by the Government of Iran, continued to control Assa after 1995, the year the
relevant economic sanctions against Iran took effect.2
This action began in 2008, when the Government filed a complaint in the
United States District Court for the Southern District of New York (Holwell, J.)
1The full set of facts giving rise to this lawsuit appears in a companion opinion. See In re
650 Fifth Ave. & Related Props., No. 17‐3258(L) (2d Cir. 2019). We assume general
familiarity with that background and focus here on the facts pertaining to this appeal.
2While Assa disputes this post‐1995 control finding on appeal, Alavi and 650 Fifth Ave.
Co. concede this fact. We address the merits of Assa’s challenge in a companion opinion.
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seeking the forfeiture of property belonging to Assa and Bank Melli under 18
U.S.C. § 981(a)(1). The centerpiece of this property is 650 Fifth Avenue, a 36‐story
skyscraper in Midtown Manhattan featuring retail and office space. The
Government alleged that the property was traceable to violations of the
International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. § 1701 et seq.,
and to money‐laundering transactions in violation of 18 U.S.C. §§ 1956 and 1957.
The premise of these allegations was that Assa and Bank Melli are owned and
controlled by the Government of Iran and provided services to Iran in violation of
the Iranian Transactions Regulations. See, e.g., 31 C.F.R. § 560.204. In November
2009, the Government amended its forfeiture complaint to add certain property
interests of Alavi and 650 Fifth Ave. Co.
The parties cross‐moved for summary judgment at the close of discovery.
The district court (Forrest, J.)3 granted summary judgment to the Government,
ordering that Assa, Alavi, and 650 Fifth Ave. Co. forfeit most of the property
interests cited in the amended complaint. In re 650 Fifth Ave. & Related Props., No.
08 Civ. 10934 (KBF), 2013 WL 5178677, at *3 & n.14 (S.D.N.Y. Sept. 16, 2013); see
3In February 2012, the Southern District reassigned the case from Judge Holwell to Judge
Forrest.
5
also In re 650 Fifth Ave. & Related Props., No. 08 Civ. 10934 (KBF), 2014 WL 1516328,
at *1 (S.D.N.Y. Apr. 18, 2014) (ordering forfeiture of additional Alavi property
interests). Although no party had briefed the issue of whether the Government’s
action was timely filed within the relevant statute‐of‐limitations period, see 19
U.S.C. § 1621, the district court considered and rejected that defense sua sponte. Id.
at *36.
After additional proceedings, Alavi and 650 Fifth Ave. Co.—but not Assa—
moved for final judgment under Federal Rule of Civil Procedure 54(b) as to their
property interests. See In re 650 Fifth Ave., 830 F.3d at 86. The district court granted
this motion, enabling those parties to appeal. Id. We vacated the summary
judgment with respect to Alavi and 650 Fifth Ave. Co. Among other things, we
held that the court violated Rule 56(f) by sua sponte disposing of their statute‐of‐
limitations defense. Id. at 75. As Assa was not a party to the appeal, we left the
judgment—which was not yet final—undisturbed as it applied to Assa. Id. at 86
n.17.
In 2017, after Alavi and 650 Fifth Ave. Co. took their cases to trial, the district
court entered final judgment resolving all claims for all parties. As was its right,
Assa appealed at that time.
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DISCUSSION
Assa raises four challenges to the district court’s orders. This opinion
addresses two of them: subject matter jurisdiction, and the district court’s sua
sponte denial of Assa’s statute‐of‐limitations defense.
I. The District Court Had Subject Matter Jurisdiction, and the FSIA’s
Immunity Regime Does Not Foreclose In Rem Civil‐Forfeiture Suits
Against Property Belonging to a Foreign State.
Federal district courts have limited subject matter jurisdiction. See, e.g.,
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). They may not
adjudicate a case or controversy unless authorized by both Article III of the United
States Constitution and a federal jurisdictional statute. Id. A party may challenge
subject matter jurisdiction at any time. See, e.g., Capron v. Van Noorden, 6 U.S. 126,
126–27 (1804).
The district court had jurisdiction under Article III, both because the United
States is a party and the action arises under federal law. See U.S. Const. art. III, § 2,
cl. 1. The issue is whether it had statutory jurisdiction.
The Government cited two jurisdictional statutes in its complaint that
appear to authorize jurisdiction. Under 28 U.S.C. § 1345, district courts have
jurisdiction over any suit commenced by the United States. And under 28 U.S.C.
7
§ 1355, district courts have jurisdiction over civil‐forfeiture proceedings arising
under federal law.
Assa does not dispute that these statutes appear to apply. Instead, it argues
that the FSIA displaces them and that we must look to its separate jurisdictional
requirements. Under the FSIA, Assa contends that it is immune from in rem civil‐
forfeiture suits.
The gateway into the FSIA’s immunity regime is the phrase “foreign state.”
The FSIA’s jurisdictional provision, 28 U.S.C. § 1330(a), states that district courts
“shall have original jurisdiction without regard to amount in controversy of any
nonjury civil action against a foreign state as defined in section 1603(a) of this title
as to any claim for relief in personam with respect to which the foreign state is not
entitled to immunity.” Id. (emphasis added). The FSIA’s immunity provision, 28
U.S.C. § 1604, adds that subject to certain exceptions, “a foreign state shall be
immune from [federal and state] jurisdiction.” Id. (emphasis added). Section
1603(a) explains that a “foreign state . . . includes a political subdivision of a
foreign state or an agency or instrumentality of a foreign state,” with the latter
category roughly referring to certain legal persons controlled by foreign
governments. 28 U.S.C. § 1603(a)–(b).
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If the defendant is a foreign state, the lawsuit must go through the FSIA
gateway. In Argentine Republic v. Amerada Hess Shipping Corporation, the Supreme
Court held that “the FSIA [is] the sole basis for obtaining jurisdiction over a foreign
state in our courts.” 488 U.S. 428, 434 (1989).4 However, if the defendant is not a
foreign state, the gateway closes: § 1330(a) does not authorize jurisdiction, and
§ 1604 does not confer immunity. Courts must look to other statutory bases for
jurisdiction.
Assa’s argument is as follows. The premise of the Government’s civil‐
forfeiture allegation is that Assa is a foreign state under the FSIA because Iran
owns or controls it through Bank Melli. See In re 650 Fifth Ave., No. 08 Civ. 10934
(KBF), 2013 WL 5178677, at *22. Granting this premise for the sake of argument,
Assa counters that the assumption opens the FSIA gateway, as a suit against a
foreign state’s property is a suit against a foreign state. Because Assa contends that
4 This language appears on its face to be about personal jurisdiction, as it refers to
jurisdiction “over a foreign state” rather than jurisdiction over a controversy involving a
foreign state. But the Court referred to both personal and subject matter jurisdiction. The
premise of Amerada Hess was that plaintiffs seeking relief from Argentina sought to avoid
the FSIA’s immunity regime by asserting subject matter jurisdiction under the Alien Tort
Statute, 28 U.S.C. § 1350, which lacks an immunity provision. See id. at 432–33. The “sole
basis” holding came in the context of rejecting that argument and describing § 1330(a)’s
grant of subject matter jurisdiction. See id. at 434.
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none of the FSIA’s immunity exceptions allow federal courts to hear in rem suits
against a foreign state’s property, it concludes that its property is immune from
jurisdiction under the FSIA.
We disagree. Section 1603(a)’s definition of foreign state includes actual
foreign states, their “political subdivision[s],” and their “agenc[ies] or
instrumentalit[ies].” Property belonging to a foreign state does not fit any of these
categories. As this is therefore not a suit against a foreign state, the FSIA gateway
is closed. No jurisdiction flows from § 1330(a), and no immunity flows from § 1604.
Amerada Hess is not to the contrary. The Supreme Court held only that “the
FSIA [is] the sole basis for obtaining jurisdiction over a foreign state in our courts.”
Amerada Hess, 488 U.S. at 434 (emphasis added). We understand “foreign state” in
Amerada Hess to mean the same thing it does in the FSIA. The Court was not asked
to decide, and did not decide, whether the FSIA is the sole basis—or any basis at
all—for obtaining jurisdiction over a foreign state’s property.
We recognize that foreign states have compelling interests in defending
their property from civil forfeiture. But nothing that Assa brings to our attention
suggests that Congress meant for the FSIA to address this concern. The statute’s
primary purpose was freeing the executive branch from a then‐existing case‐by‐
10
case approach to foreign sovereign immunity, whereby courts would look to
“suggestions of immunity” from the State Department. See Verlinden B.V. v. Cent.
Bank of Nigeria, 461 U.S. 480, 487–88 (1983). Congress also sought to set uniform
standards for controversies against foreign states. Id. at 488. These goals have little
apparent nexus to foreclosing in rem civil‐forfeiture suits.
To be sure, the FSIA is not completely silent on immunity in actions
involving a foreign state’s property. Section 1609 states that “the property in the
United States of a foreign state shall be immune from attachment arrest and
execution [subject to certain exceptions].” 28 U.S.C. § 1609. However, this
language is of no help to Assa, as it refers to quasi in rem suits meant to enforce in
personam judgments against a foreign state. A civil‐forfeiture suit is an in rem
proceeding brought directly against the property. Although in rem and quasi in rem
proceedings both involve a rem (a “thing”), the relevant similarity ends there. Civil
forfeiture does not involve the “attachment arrest and execution” forbidden by
§ 1609.
The background of § 1609 makes this point clear. Congress sought to clamp
down on quasi in rem suits because they “caused significant irritation to many
foreign governments” and could potentially “give rise to serious friction in United
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States’ foreign relations.” H.R. Rep. No. 94–1487, at 27 (1976), as reprinted in 1976
U.S.C.C.A.N. 6604, 6626. One could say the same of civil‐forfeiture actions. But the
only plaintiff that can claim civil forfeiture under § 981 is the United States. When
the executive branch seeks the forfeiture of a foreign state’s property, the judiciary
is in no position to second‐guess whether the lawsuit will harm our nation’s
foreign‐policy goals.
The FSIA does not create jurisdiction over, and does not immunize a foreign
state’s property from, in rem civil‐forfeiture actions.5 Accordingly, this case does
not implicate the rule that “the FSIA [is] the sole basis for obtaining jurisdiction
over a foreign state in our courts.” Amerada Hess, 488 U.S. at 434 (emphasis added).
We may therefore look to other federal jurisdictional statutes. The district court
had jurisdiction under 28 U.S.C. §§ 1345 and 1355.
5 The Fifth Circuit reached the same conclusion, albeit in a different context. See In re B‐
727 Aircraft Serial No. 21010, 272 F.3d 264, 270 (5th Cir. 2001) (“[T]he . . . grant of
jurisdiction found in 28 U.S.C. § 1330 . . . confers jurisdiction only over ‘any claim for
relief in personam’ that is against a foreign state, not over in rem actions.”).
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II. The District Court Violated Rule 56(f) with Respect to Assa by Sua
Sponte Granting Summary Judgment to the Government on the
Statute‐of‐Limitations Issue.
In 2016, we held that the district court violated Rule 56(f) with respect to
Alavi and 650 Fifth Ave. Co. by rejecting their statute‐of‐limitations defense
without providing them notice and a reasonable time to respond. See In re 650 Fifth
Ave., 830 F.3d at 96–97 (citing Fed. R. Civ. P. 56(f)). The district court’s erroneous
holding also applied to Assa, but we did not vacate that aspect of the summary
judgment because Assa was not a party to the appeal. See id. at 86 n.17.
Now that Assa’s case is before us, the district court’s error requires us to
vacate the judgment against Assa. In one fell swoop, the court violated Rule 56(f)
with respect to Assa, Alavi, and 650 Fifth Ave. Co. by rejecting their potentially
dispositive affirmative defense without providing them notice and a reasonable
time to respond. This decision was erroneous as to Assa for the same reasons we
held it erroneous as to Alavi and 650 Fifth Ave. Co. See generally id. at 96–97.
The Government concedes that the district court committed a “procedural
error.” Appellee Br. 241. However, it argues that we should excuse the error on
harmlessness grounds. In the Government’s view, “Assa has not identified any
evidence raising a material issue of fact supporting the defense.” Id.
13
We disagree. We already held, on the same record before us now, that “[t]his
is not a case where the record was so fully developed that [Alavi and 650 Fifth
Ave. Co.] plainly suffered no prejudice from the procedural error.” In re 650 Fifth
Ave., 830 F.3d at 97. This holding applies equally to Assa. The lack of an
evidentiary record underscores, rather than undermines, Assa’s need for a
reasonable opportunity to present its evidence and arguments.
In effect, the Government’s position is that we should decide an issue the
parties did not brief below, even where we held that the district court abused its
discretion by doing the same thing as to Alavi and 650 Fifth Ave. Co. This is not
our ordinary practice, and it would be particularly inappropriate here. Everyone
involved should have known that the error we identified in 2016 also affected
Assa. On remand, nothing prevented the district court from correcting this error
by requiring Assa to brief the issue—an issue the Government, Alavi, and 650 Fifth
Ave. Co. were already briefing—and then revisiting the summary judgment
decision. This simple fix would have saved Assa’s case from sitting in limbo for
years while awaiting inevitable vacatur.
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We vacate the judgment. We express no opinion on whether Assa should be
allowed to take discovery on its statute‐of‐limitations defense on remand, as this
issue is not before us at this time.6
CONCLUSION
We AFFIRM in part, VACATE in part, and REMAND for further
proceedings consistent with this opinion.
6We decline to address Assa’s remaining challenges to the summary judgment, except as
discussed in the accompanying summary order.
15