The Ministry of Defense v. Renay Frym , 814 F.3d 1053 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE MINISTRY OF DEFENSE AND No. 13-57182
SUPPORT FOR THE ARMED FORCES OF
THE ISLAMIC REPUBLIC OF IRAN, as D.C. No.
Successor in Interest to the Ministry 3:98-CV-01165-
of War of the Government of Iran, B-DHB
Petitioner-Appellant,
v. OPINION
RENAY FRYM; STUART E. HERSH;
ABRAHAM MENDELSON; DANIEL J.
MILLER; FRANCE MOKHATEB RAFII;
ELENA ROZENMAN; NOAM
ROZENMAN; TZVI ROZENMAN;
DEBORAH RUBIN; JENNY RUBIN,
Claimants-Appellees,
and
CUBIC DEFENSE SYSTEMS, INC., as
Successor in Interest to Cubic
International Sales Corporation,
Respondent.
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, Chief District Judge, Presiding
2 MINISTRY OF DEFENSE V. FRYM
Argued and Submitted
February 2, 2016—Pasadena, California
Filed February 26, 2016
Before: Dorothy W. Nelson, Consuelo M. Callahan,
and N. Randy Smith, Circuit Judges.
Opinion by Judge D.W. Nelson
SUMMARY*
Attachment of Judgments
The panel affirmed the district court’s grant of lien
claimants’ motion to attach a judgment that the Ministry of
Defense of Iran obtained in an underlying arbitration with an
American company.
The lien claimants moved to attach the judgment, known
as the “Cubic Judgment,” in order to collect on judgments
they hold against the Islamic Republic of Iran for their
injuries arising out of terrorism sponsored by Iran.
The panel held that the Algiers Accords, by which the
United States and Iran resolved the Iranian Hostage Crisis,
did not prevent the lien claimants from attaching the Cubic
Judgment. The panel also held that the Cubic Judgment was
a blocked asset pursuant to President Obama’s 2012
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MINISTRY OF DEFENSE V. FRYM 3
Executive Order No. 13359, subject to attachment and
execution under the Terrorism Risk Insurance Act.
COUNSEL
Steven W. Kerekes (argued), Pasadena, California, for
Petitioner-Appellant.
Jonathan R. Mook (argued), DimuroGinsberg, P.C.,
Alexandria, Virginia; Philip J. Hirschkop, Hirschkop &
Associates, Lorton, Virginia, for Claimant-Appellee France
M. Rafii.
David J. Strachman (argued), McIntyre Tate LLP,
Providence, Rhode Island, for Claimants-Appellees Jenny
Rubin, Deborah Rubin, Daniel Miller, Abraham Mendelson,
Stuart E. Hersh, Renay Frym, Noam Rozenman, Elena
Rozenman, and Tzvi Rozenman.
Stuart F. Delery, Assistant Attorney General; Laura E. Duffy,
United States Attorney; Sharon Swingle and Benjamin M.
Schultz (argued), Attorneys, Appellate Staff Civil Division,
United States Department of Justice; Lisa. J. Grosh, Assistant
Legal Advisor, Department of State; Bradley T. Smith, Chief
Counsel, Office of Foreign Assets Control, Department of the
Treasury, Washington D.C, for Amicus Curiae United States.
4 MINISTRY OF DEFENSE V. FRYM
OPINION
D.W. NELSON, Senior Circuit Judge:
This case involves an attempt by ten American citizens
(hereinafter Lien Claimants) to collect on valid judgments
they hold against the Islamic Republic of Iran (Iran) for their
injuries arising out of terrorism sponsored by Iran. The Lien
Claimants seek to attach a $2.8 million judgment1 that the
Ministry of Defense of Iran (the Ministry) obtained in an
underlying arbitration with an American company, Cubic
Defense Systems, Inc (Cubic).
The district court granted Lien Claimants’ motion to
attach the Cubic Judgment. The Ministry timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and we
affirm.2
1
With accrued interest and the addition of attorneys’ fees, over $9.4
million is available. We refer to the underlying judgment as the “Cubic
Judgment.”
2
The district court stayed disbursement of funds to Lien Claimants
pending the outcome of the Ministry’s appeal. At oral argument, the
Ministry requested that this Court maintain the stay of disbursement
pending the Ministry’s petition for certiorari to the Supreme Court. We
decline the Ministry’s request. The Ministry has not shown “both a
probability of success on the merits and the possibility of irreparable
injury,” or “that serious legal questions are raised and that the balance of
hardships tips sharply in its favor.” Cf. Lopez v. Heckler, 713 F.2d 1432,
1435 (9th Cir. 1983).
MINISTRY OF DEFENSE V. FRYM 5
I. Background
Like all foreign states, Iran is protected by sovereign
immunity. See Saudi Arabia v. Nelson, 507 U.S. 349, 355
(1993) (“A foreign state is presumptively immune from suit
in United States’ courts.”). Absent an exception to the
Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.
§§ 1602–1611, a foreign state cannot be sued nor can its
assets be attached to satisfy a judgment.3 Saudi Arabia,
507 U.S. at 355. One such exception is for claims arising out
of state-sponsored terrorism. 28 U.S.C. § 1605A.
The Lien Claimants hold judgments against Iran based on
terrorist activity that Iran sponsored.
Claimant France M. Rafii’s father, Dr. Shapoir Bakhtiar,
was a former prime minister of Iran. In 1991, Iranian agents
murdered Dr. Bakhtiar in his home in Paris, France, because
of his political opposition to the Islamic regime. In 2001,
Rafii sued Iran under the state-sponsored terrorism exception
to the FSIA. Iran did not appear. The district court
conducted a two-day bench trial and entered default judgment
against Iran for $5 million in compensatory damages (after
making the necessary factual, jurisdictional, and statutory
findings). The Ministry does not dispute the validity of the
judgment.
3
The Ministry of Defense is an inseparable part of the Republic of Iran,
and it therefore qualifies as a “foreign state” within the meaning of the
FSIA. Ministry of Def. & Support for Armed Forces of Islamic Republic
of Iran v. Cubic Def. Sys., Inc., 495 F.3d 1024, 1034–36 (9th Cir. 2007),
rev'd on other grounds sub nom. Ministry of Def. & Support for the Armed
Forces of the Islamic Republic of Iran v. Elahi, 556 U.S. 366 (2009).
6 MINISTRY OF DEFENSE V. FRYM
In 1997, Hamas detonated a suicide bomb at a pedestrian
mall in Jerusalem, injuring many American citizens. The
Rubin Claimants are a group of nine individuals who either
were themselves injured in the bombing, or whose relatives
were injured. In 2001, the Rubin Claimants sued Iran for its
part in the bombing under the state-sponsored terrorism
exception to the FSIA. Iran did not appear. The district court
conducted a four-day evidentiary hearing and concluded that
Iran provided terrorist training and other material assistance
to the bombers. After evaluating all of the Rubin Claimants’
compensatory damages, based on each plaintiff’s injuries, the
district court entered default judgment against Iran and
ordered Iran to pay the damages ranging from $2.5 million to
$15 million. The Ministry does not dispute the validity of the
judgment.
Despite these valid judgments against Iran, Lien
Claimants initially lacked any means to collect because the
state-sponsored terrorism exception to the FSIA created
an anomaly. While the exception abrogated a foreign
sovereign’s immunity from judgment, it left in place the
foreign sovereign’s immunity from attachment of its assets.
In 2002, Congress addressed this problem, enacting the
Terrorism Risk Insurance Act (TRIA), Pub. L. No. 107–297,
§ 201, 116 Stat. 2322, 2337 (codified in relevant part at
28 U.S.C. § 1610 note). As originally enacted, section 201(a)
provides:
Notwithstanding any other provision of law
. . . , in every case in which a person has
obtained a judgment against a terrorist party
on a claim based upon an act of terrorism, or
for which a terrorist party is not immune
MINISTRY OF DEFENSE V. FRYM 7
under [28 U.S.C. § 1605(a)(7) (2000)], the
blocked assets of that terrorist party
(including the blocked assets of any agency or
instrumentality of that terrorist party) shall be
subject to execution or attachment in aid of
execution in order to satisfy such judgment to
the extent any compensatory damages for
which such terrorist party has been adjudged
liable.
“Blocked” assets include assets “seized or frozen by the
United States” under the International Emergency Economic
Powers Act (IEEPA), 50 U.S.C. §§ 1701–1706. See TRIA
§ 201(d)(2). The TRIA therefore permits attachment when it
might have otherwise been barred by the FSIA.4
In 1977, Cubic agreed to sell the Ministry an air combat
maneuvering range system (ACMR) for $17 million.
Additionally, under a separate service contract, Cubic agreed
to maintain the ACMR for Iran. By October 1978, Iran had
paid over $12 million of the purchase price and modest sums
on the service contract. By February 1979, Cubic obtained
export permits and was poised to transfer the equipment to
Iran.
4
Congress amended the FSIA as part of the National Defense
Authorization Act for Fiscal Year 2008, Pub. L. No. 110–181, 122 Stat.
3 (2008). Specifically, Congress replaced the terrorism exception to
sovereign immunity that had been codified at 28 U.S.C. § 1605(a)(7) with
a new terrorism exception codified at 28 U.S.C. § 1605A. The new
exception provides an explicit private right of action for U.S. citizens
injured by state sponsors of terrorism. In addition, Congress created a
special attachment provision for plaintiffs holding a Section 1605A
judgment against a foreign state. See 28 U.S.C. §1610(g).
8 MINISTRY OF DEFENSE V. FRYM
But, by November 1979, the Iranian revolution had
disrupted relations between Iran and the United States. The
revolution permanently prevented full performance of the
sales and maintenance contracts. Iran and Cubic eventually
entered into a modified agreement, under which Cubic would
attempt to sell the ACMR to another country. Depending on
the result of Cubic’s attempt to resell the ACMR, either Iran
would be entitled to partial reimbursement for payments it
made to Cubic, or Cubic would be entitled to additional
payment from Iran.
In the Fall of 1982, Cubic sold the equipment to Canada
but ignored Iran’s requests for an accounting.
In 1991, pursuant to its contracts with Cubic, Iran
initiated arbitration proceedings with the International
Chamber of Commerce (ICC). In 1997, the ICC found that
Iran and Cubic agreed to discontinue the acquisition and
maintenance contracts in light of the revolution, and that they
had reached a modified agreement permitting Cubic to sell
the equipment to another country. The ICC held that Cubic
owed Iran $2.8 million plus interest and costs.
In 1998, the Ministry filed a petition to confirm the
arbitration award. The U.S. District Court for the Southern
District of California confirmed the award. It entered the
Cubic Judgment in August 1999. After the final resolution of
this dispute, Cubic deposited funds covering the Cubic
Judgment with the Southern District of California.
The Lien Claimants moved to attach the Cubic Judgment.
The Ministry opposed Lien Claimants’ attempts, arguing:
(1) that the Algiers Accords, by which the United States and
Iran resolved the Iranian Hostage Crisis, required the United
MINISTRY OF DEFENSE V. FRYM 9
States to protect the Cubic Judgment from attachment; and
(2) that the Cubic Judgment was in any event not attachable
under the TRIA or any other statute.
The district court granted Lien Claimants’ motion to
attach. It held that allowing attachment would not violate the
United States’ obligations under the Algiers Accords because
the United States committed only to restore Iran to its pre-
November 1979 position. As of 1979, the district court
explained, Iran did not have an interest in the confirmed
arbitration award.
The district court further held that the Cubic Judgment
was a “blocked asset” within the meaning of the TRIA. The
court reasoned that the Cubic Judgment was blocked pursuant
to President Obama’s 2012 Executive Order No. 13359, as
well as pursuant to President Bush’s 2005 Executive Order
No. 13382. It therefore found that the Cubic Judgment was
subject to attachment under the TRIA.
In the alternative, the district court held that the Rubin
Claimants could attach the Cubic Judgment under 28 U.S.C.
§ 1610(g), the special attachment provision of the FSIA for
creditors holding a Section 1605A terrorism-related judgment
against a foreign state.
II. Standard of Review
We review the district court’s interpretation of treaties,
statutes, regulations, and executive orders de novo. See
Motorola, Inc. v. Fed. Express Corp., 308 F.3d 995, 999, n.5
(9th Cir. 2002) (treaties); City of Los Angeles v. United States
Dep’t of Commerce, 307 F.3d 859, 868 (9th Cir. 2002)
(statutes); United States v. Willfong, 274 F.3d 1297, 1300 (9th
10 MINISTRY OF DEFENSE V. FRYM
Cir. 2001) (regulations); United States v. Washington,
969 F.2d 752, 754–55 (9th Cir. 1992) (executive orders).
III. Discussion
We hold that the United States does not violate its
obligations under the Algiers Accords by permitting Lien
Claimants to attach the Cubic Judgment. We also hold that
the Cubic Judgment is a blocked asset pursuant to President
Obama’s 2012 Executive Order No. 13359 subject to
attachment and execution under the TRIA.
Because it is not necessary to our decision, we do not
address whether the Cubic Judgment is also a blocked asset
pursuant to President Bush’s 2005 Executive Order No.
13382. Similarly, we decline to address the district court’s
alternative holding that the Rubin Claimants can attach the
Cubic Judgment under 28 U.S.C. § 1610(g).
1. Permitting Lien Claimants to attach the Cubic
Judgment does not violate the United States’
obligations under the Algiers Accords.
The Algiers Accords do not prevent Lien Claimants from
attaching the Cubic Judgment because the Ministry’s interest
in the Cubic Judgment did not arise until after November 14,
1979. As the Supreme Court specifically held in Ministry of
Defense & Support for the Armed Forces of the Islamic
Republic of Iran v. Elahi, the appropriate property interest to
consider is Iran’s interest in the Cubic Judgment, which did
not arise until 1998. 556 U.S. 366, 376–77 (2009).
In November 1979, Iran took hostages at the American
Embassy in Tehran. Invoking the International Emergency
MINISTRY OF DEFENSE V. FRYM 11
Economic Powers Act (IEEPA), President Carter responded
by issuing Executive Order 12170, which “blocked all
property and interests in property of the Government of Iran.”
Exec. Order 12170, 44 Fed. Reg. 65729 (Nov. 14, 1979).5
The Department of Treasury promulgated the Iranian
Assets Control Regulations to execute President Carter’s
Executive Order. 31 C.F.R. pt. 535, 44 Fed. Reg. 65279–01
(Nov. 15, 1979). The Regulations provide that “[n]o property
subject to the jurisdiction of the United States or which is in
the possession or control of persons subject to the jurisdiction
of the United States in which on or after the effective date
Iran has any interest of any nature whatsoever may be
transferred, paid, exported, or withdrawn or otherwise dealt
in except as authorized.” 31 C.F.R. § 535.201 (2013). The
freeze took effect on November 14, 1979.
On January 19, 1981, the United States and Iran settled
the hostage crisis and entered into the Algiers Accords. The
United States agreed to “restore the financial position of Iran,
in so far as possible, to that which existed prior to November
14, 1979.” The purpose of the Algiers Accords was to return
Iran to the position it was in before President Carter froze
Iran’s assets in response to the taking of hostages at the
American Embassy.
In essence, the Ministry argues that based on a number of
factors—most importantly, $12 million in payments Iran
made to Cubic on the $17 million sales contract—Iran had a
5
Under the IEEPA, the President can impose economic sanctions to
respond to “unusual and extraordinary” international threats. 50 U.S.C.
§§ 1701, 1702(a). These sanctions are administered by the Treasury
Department’s Office of Foreign Assets Control (OFAC).
12 MINISTRY OF DEFENSE V. FRYM
property interest in the ACMR before November 14, 1979.
Therefore, according to the Ministry, for the United States to
honor its commitments under the Algiers Accords, it must
protect the Cubic Judgment from attachment.
But, under the Supreme Court’s decision in Elahi, when
Iran gained a property interest in the ACMR is irrelevant to
our inquiry.
Elahi involved an attempt by a different lien claimant to
attach the Cubic Judgment under the TRIA.6 The Supreme
Court rejected this Court’s determination that the ACMR was
the relevant asset at issue. In so holding, the Court explained
that the lien claimants in that case did not seek to attach the
ACMR, but instead tried to attach the “judgment enforcing
[the] arbitration award based upon Cubic’s failure to account
to Iran for Iran’s share of the proceeds of that system’s sale.”
Elahi, 556 U.S. at 376. The Court explained that Iran’s
interest in the Cubic Judgment did not arise until 1998, when
the district court confirmed the arbitration award. Id.
Further, the Supreme Court explained, even Iran’s
property interest underlying the Cubic Judgment—the
proceeds from the sale to Canada—did not arise until October
1982 at the earliest. Only after Cubic sold the equipment
could it “reasonably, comprehensively, and precisely
account” for the result of its resale attempts. Id. at 376–77
(internal quotations omitted).
6
We note that, before the Supreme Court in Elahi, the Ministry made a
contrary argument to the one it makes here. There, the Ministry asserted
that Iran’s interest in the Cubic Judgment could not be “backdated” to
1981.
MINISTRY OF DEFENSE V. FRYM 13
Under Elahi, Iran did not have an interest in the Cubic
Judgment or in the property underlying the judgment until
well after the Algiers Accords were consummated.
Permitting Lien Claimants to attach the Cubic Judgment
would therefore not cause the United States to run afoul of its
obligations under the Algiers Accords.7
2. The Cubic Judgment is a blocked asset subject to
attachment and execution under the TRIA.
The Cubic Judgment is a “blocked asset” pursuant to
President Obama’s 2012 Executive Order No. 13539. It is
therefore subject to attachment and execution pursuant to the
TRIA.
In 2012, President Obama invoked the IEEPA to block
“[a]ll property and interests in property of the Government of
Iran . . . that are in the United States.”8 Exec. Order No.
13359, 77 Fed. Reg. 6659, 6659 (Feb. 5, 2012). However,
7
The United States agrees with this conclusion. In its amicus brief, the
United States contends that its “longstanding position . . . is that the
[Algiers Accords] simply required the United States to return, as directed
by Iran, specified Iranian properties that were in existence and subject to
jurisdiction as of January 19, 1981 (the date of the Accords). The United
States has no transfer obligation with respect to property that Iran acquired
after the date of the Accords.” Brief of the United States as Amicus
Curiae at 18–19. The government’s interpretation of its own agreement
is entitled to “great weight.” Sumitomo Shoji Am., Inc. v. Avagliano,
457 U.S. 176, 184–85 & n.10 (1982).
8
This Court has already found that the Ministry is “an inherent part of
the state of Iran.” Ministry of Defense, 495 F.3d at 1036, rev’d on other
grounds by Elahi, 556 U.S. 366 (2009). Therefore, the Ministry’s
ownership of the Cubic Judgment—rather than Iran’s—does not foreclose
the application of President Obama’s blocking order.
14 MINISTRY OF DEFENSE V. FRYM
President Obama’s blocking order exempted Iranian property
and interests in property that had been blocked in 1979, and
that were then unblocked in 1981. 77 Fed. Reg. at 6660.
The Ministry argues that Iran held a property interest in
the ACMR that was blocked in 1979 then unblocked in 1981.
The Ministry therefore contends that the Cubic Judgment falls
within the exemption to President Obama’s 2012 Executive
Order.
We reject this argument, which just like the Ministry’s
argument that the Algiers Accords prevent attachment, relies
on misidentifying the asset actually at issue in this case.
Under Elahi, the key asset is the one the Lien Claimants
seek to attach: the Cubic Judgment, not the ACMR as the
Ministry now argues. And the Cubic Judgment does not fall
within the exemption to President Obama’s blocking order.
Iran did not gain a property interest in the Cubic Judgment
until 1998, when the district court confirmed the underlying
arbitration award. Elahi, 556 U.S. at 376. Accordingly,
Iran’s property interest in the Cubic Judgment existed neither
in 1979, when Iran’s assets were blocked, nor in 1981 when
those assets were unblocked. Whether and when Iran gained
MINISTRY OF DEFENSE V. FRYM 15
a property interest in the ACMR is simply not relevant to this
case.9
AFFIRMED.
9
The Ministry’s contention that 31 C.F.R. § 535.540(f) governed the
proceeds of Cubic’s sale to Canada is irrelevant for the same reason. The
relevant asset is not the proceeds of the sale, but rather the judgment
confirming the arbitral award. Elahi, 556 U.S. at 376. Even if it were
relevant, the district court correctly found that Section 535.540(f) would
not apply. The regulation only requires sale proceeds to be transferred to
Iran when the sale of otherwise blocked property is made pursuant to a
specific type of OFAC license. The ACMR was not blocked after January
1981, and there is no evidence that Cubic’s sale of the ACMR involved
any such license.