Steven Greenbaum v. Islamic Republic of Iran ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2022 Decided May 9, 2023
No. 22-5080
STEVEN M. GREENBAUM, ON BEHALF OF HIMSELF
INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF
JUDITH (SHOSHANA) LILLIAN GREENBAUM, DECEASED, ET AL.,
APPELLANTS
v.
ISLAMIC REPUBLIC OF IRAN, ET AL.,
APPELLEES
Consolidated with 22-5081, 22-5083, 22-5085
Appeals from the United States District Court
for the District of Columbia
(No. 1:02-cv-02148)
(No. 1:03-cv-01708)
(No. 1:06-cv-00473)
(No. 1:06-cv-00745)
Patrick N. Petrocelli argued the cause for appellants. With
him on the briefs was James L. Bernard.
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Brian P. Hudak, Assistant U.S. Attorney, argued the cause
and filed the brief for intervenor-appellee United States of
America. Jane M. Lyons and Peter C. Pfaffenroth, Assistant
U.S. Attorneys, entered appearances.
Before: MILLETT and CHILDS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
GINSBURG, Senior Circuit Judge: The United States seized
oil cargo it claims belongs to the Islamic Republic of Iran. The
appellants attached the oil in order to satisfy money judgments
they hold against Iran. The district court upheld the United
States’ claim of sovereign immunity and quashed the
attachments. Because we agree that federal sovereign
immunity applies, and because the appellants identify no
waiver of that immunity, we affirm the judgment of the district
court.
I. Background
A. The Forfeiture Proceeding
In December 2020, the United States obtained a warrant to
seize oil cargo allegedly belonging to the armed forces of Iran.
The oil cargo was then aboard the M/T Achilleas, outside U.S.
waters. The owner of the Achilleas acknowledged the warrant
and agreed to transport the oil cargo to the United States.
In the meantime, the United States filed a civil forfeiture
complaint in the district court (Friedman, J.), and the clerk
issued a warrant arresting the oil cargo and constructively
bringing it within the Government’s custody. 18 U.S.C.
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§ 981(c). To avoid incurring storage costs while the forfeiture
proceeding remains pending, the United States sought and
received the court’s permission to sell the oil before a final
judgment. The net proceeds of the sale—nearly $100 million—
are being held in an interest-bearing escrow account of the
United States. The civil forfeiture proceeding remains pending.
B. The Execution Proceedings
Well before these events, the appellants had obtained
money judgments in the district court (Lamberth, J.) against
Iran, as permitted by the exception to the Foreign Sovereign
Immunities Act (FSIA) for victims of state-sponsored
terrorism. 28 U.S.C. § 1605A(a); see also 28 U.S.C.
§ 1605(a)(7) (2007). They have been trying to collect against
Iran ever since.
Catching wind of the arrest of the oil cargo, the appellants
sought to execute their judgments. By order of Judge
Lamberth, the clerk issued writs of attachment ordering the
U.S. Marshal to seize the oil cargo and directing the U.S.
Attorney’s Office to appear as garnishee in the execution
proceedings. See Fed. R. Civ. P. 69(a)(1); D.C. Code §§ 16-
544, 546.
C. The Decision of the District Court
The United States intervened and sought to quash the writs
of attachment. The Government argued, among other things,
that the writs were barred by federal sovereign immunity. The
appellants responded by arguing that § 201(a) of the Terrorism
Risk Insurance Act of 2002 (TRIA), 28 U.S.C. § 1610 (note),
waives federal sovereign immunity in the present
circumstances.
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The district court held federal sovereign immunity applies
because the United States “holds a property interest” in the
proceeds from the sale of the oil. Greenbaum v. Islamic
Republic of Iran, 588 F. Supp. 3d 77, 81 (D.D.C. 2022). It then
held the TRIA is not a waiver of sovereign immunity. Id. at 84.
Accordingly, the district court quashed the writs of attachment.
This appeal followed.
We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291 because the decision of the district court quashing the
writs is final; it prevents execution and leaves the district court
nothing else to decide. See Frank v. Malone, 126 F.2d 651, 652
(D.C. Cir. 1942) (“The Municipal Court granted the motions
and quashed the attachments. Since that order prevented
appellant from proceeding further, it was a final order.”
(footnote omitted)); see also Crystallex Int’l Corp. v.
Bolivarian Republic of Venezuela, 24 F.4th 242, 254–55 (3d
Cir. 2022) (noting that a post-judgment order that leaves the
district court nothing else to decide is final). Because this
appeal involves only questions of law, our review is de novo.
Bennett v. Islamic Republic of Iran, 618 F.3d 19, 21 (D.C. Cir.
2010).
II. Analysis
We begin by considering whether federal sovereign
immunity applies. We hold that it does. We end by considering
whether the TRIA waives federal sovereign immunity. We
hold it does not.
A. Federal Sovereign Immunity Applies
“[T]he sine qua non of federal sovereign immunity is the
federal government’s possession of the money in question. The
government need not have an actual interest in the funds in
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order to invoke the defense.” Kalodner v. Abraham, 310 F.3d
767, 770 (D.C. Cir. 2002) (citing United States v. N.Y. Rayon
Importing Co., 329 U.S. 654 (1947)). Therefore, “sovereign
immunity bars creditors from attaching or garnishing funds in
the Treasury.” See Dep’t of Army v. Blue Fox, Inc., 525 U.S.
255, 264 (1999).
Applying these precedents, we see that the writs conflict
with sovereign immunity in two ways. First, as the Government
argues, the writs impermissibly direct the U.S. Marshal to seize
property held in a government escrow account. Kalodner, 310
F.3d at 770. Second, the writs name the U.S. Attorney’s Office
as garnishee, requiring it to appear in the execution proceedings
and answer interrogatories under compulsion of a “judgment of
condemnation.” D.C. Code § 16-556(b). As the garnishee is
one of its agencies, the United States would be liable “for the
. . . credits admitted or found.” Id. § 16-556(a); see also Palmer
v. McClelland, 123 A.2d 357, 357 (D.C. 1956). The appellants
are thus seeking monetary relief against the United States, but
“[t]he judiciary may not impose monetary relief against the
United States without its consent.” United States v. Waksberg,
112 F.3d 1225, 1227 (D.C. Cir. 1997). Sovereign immunity
therefore bars the writs. Blue Fox, 525 U.S. at 264.
B. The Congress Has Not Waived Sovereign Immunity
Even when federal sovereign immunity would otherwise
apply, the Congress may consent to suit. The appellants argue
the Congress did just that in § 201(a) of the TRIA, which
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 under section
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1605A or 1605(a)(7) . . . , 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 of any compensatory
damages for which such terrorist party has been adjudged
liable.
28 U.S.C. § 1610 (note). A waiver of sovereign immunity must
“be clearly discernable from the statutory text in light of
traditional interpretive tools.” FAA v. Cooper, 566 U.S. 284,
291 (2012). “Any ambiguities in the statutory language are to
be construed in favor of immunity, so that the Government’s
consent to be sued is never enlarged beyond what a fair reading
of the text requires.” Id. at 290 (citation omitted). There is an
ambiguity “if there is a plausible interpretation of the statute
that would not authorize money damages against the
Government.” Id. at 290–91. Resolving ambiguities, as
therefore we must, in favor of immunity, we discern no clear
waiver of federal sovereign immunity in § 201(a).
1. The catchall notwithstanding clause does not
clearly waive sovereign immunity.
The appellants argue that the introductory clause,
“Notwithstanding any other provision of law . . .,” in § 201(a)
of the TRIA effectively waives federal sovereign immunity.
Even “standing alone,” they say, this clause “clearly and
unequivocally waives” sovereign immunity because
“[s]overeign immunity is a provision of law.” The Government
counters that the phrase “any other provision of law” does not
clearly cover federal sovereign immunity, because that
immunity is not to be found in any “provision of law.” We
agree.
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The phrase “other provision of law” is at best ambiguous.
The phrase clearly requires courts to disregard other statutory
provisions that conflict with the scope of the TRIA. For
example, § 1609 of the FSIA expressly grants the property of
foreign states immunity from execution, but § 201(a) of the
TRIA supersedes that provision insofar as it applies to the
“blocked asset” of a “terrorist party,” as those terms are defined
in § 201(d) of the TRIA. See Rubin v. Islamic Republic of Iran,
138 S. Ct. 816, 825 (2018) (citing the TRIA as an example of
a statute that “expressly” divests “a foreign state or property of
immunity in relation to terrorism-related judgments”); see also
Levinson v. Kuwait Fin. House (Malaysia) Berhad, 44 F.4th
91, 96 (2d Cir. 2022) (noting the TRIA provides a limited
“exception” to this statutory immunity). Although the phrase
“provision of law” may in some contexts be best read to
displace other forms of law, such as a common law doctrine, it
does not do so clearly enough to waive federal sovereign
immunity.
“When a term goes undefined in a statute, we give the term
its ordinary meaning.” Taniguchi v. Kan Pac. Saipan, Ltd., 566
U.S. 560, 566 (2012). To determine the ordinary meaning of a
legal term, we may look to contemporaneous dictionaries. See
id. at 566–68. The TRIA was enacted in 2002. The eighth
edition of Black’s Law Dictionary, published in 2004, defines
“provision” as a “clause in a statute, contract, or other legal
instrument.” Federal sovereign immunity is not such an
“instrument,” which Black’s further defines as a “written legal
document that defines rights, duties, entitlements, or liabilities,
such as a statute, contract, will, promissory note, or share
certificate.” See also Black’s Law Dictionary 998 (7th ed.
1999) (“A stipulation or qualification, esp. a clause in a
document or agreement”). Other dictionaries are consistent
with Black’s. See Merriam Webster’s Dictionary of Law 394
(1996) (defining ‘provision’ as “a stipulation (as a clause in a
8
statute or contract) made beforehand”); accord American
Heritage Dictionary of the English Language 666 (3rd ed.
1994) (“A stipulation or qualification, esp., a clause in a
document”).
So understood, referring to “any other provision of law”
would be at best an abstruse way to waive federal sovereign
immunity, and the sovereign immunity canon requires clarity.
We must therefore read the term “provision” to exclude the
doctrine of federal sovereign immunity.
Our conclusion is reinforced by “notwithstanding” clauses
in other statutes. First, the Congress knows how to enact a
notwithstanding clause that clearly waives or abrogates
sovereign immunity. It has done so in the Bankruptcy Code.
See 11 U.S.C. § 106(a) (“Notwithstanding an assertion of
sovereign immunity, sovereign immunity is abrogated as to a
governmental unit . . .”); id. § 106(c) (“Notwithstanding any
assertion of sovereign immunity by a governmental unit . . .”).
Second, the Congress has recognized that the phrase “other
provision of law” does not clearly extend beyond statutory law
by including in the Immigration and Naturalization Act a
parenthetical expressly giving it a more expansive sweep:
“Notwithstanding any other provision of law (statutory or
nonstatutory), . . . ).” 8 U.S.C. § 1252(a)(2)(A), (a)(2)(B),
(a)(2)(C), (a)(4), (a)(5). This parenthetical would be
unnecessary if “other provision of law” clearly applied beyond
statutory law.
Setting aside this ambiguity in the phrase “provision of
law,” “the ‘notwithstanding’ clause applies only when some
‘other provision of law’ conflicts with” the scope of the TRIA.
Smith ex rel. Est. of Smith v. Fed. Rsrv. Bank of New York, 346
F.3d 264, 271 (2d Cir. 2003). The clause “does not define the
scope of” the TRIA. Kucana v. Holder, 558 U.S. 233, 238 n.1
9
(2010). It merely signals that the TRIA prevails over
conflicting provisions of law. Id. The reach of the
notwithstanding clause is therefore necessarily determined by
the substantive text that follows it, and the appellants’
argument that the notwithstanding clause “standing alone”
could waive federal sovereign immunity is but a solecism. As
we explain in more detail below, the TRIA does not expressly
mention the United States, its sovereign immunity, or its
susceptibility to suit under the statute. Because the TRIA has
nothing express to say about federal sovereign immunity, the
notwithstanding clause cannot aid the appellants.
We need not decide whether the phrase “provision of law”
sometimes includes, as the appellants claim, federal or state
“common law doctrines.” Citing King v. Dole, 782 F.2d 274,
275–76 (1986); D.C. v. Brady, 288 F.2d 108, 110 (1960).
Federal sovereign immunity is no ordinary rule of common
law. Federal sovereign immunity reinforces the separation of
powers. It protects the Congress’s power of the purse, Art. I,
§ 9, cl. 7, under which “the payment of money from the
Treasury must be authorized by a statute.” Off. of Pers. Mgmt.
v. Richmond, 496 U.S. 414, 424 (1990). By barring suits for
money damages without the consent of the Congress, sovereign
immunity precludes actions to “divert the public money from
its legitimate and appropriate object.” Buchanan v. Alexander,
45 U.S. 20, 20 (1846). Just as the president cannot spend
money without an appropriation, the president cannot expose
the fisc to liability by waiving federal sovereign immunity.
Only the Congress can do that. Dep’t of Army v. FLRA, 56 F.3d
273, 275 (D.C. Cir. 1995).
Because federal sovereign immunity keeps fiscal decisions
in the democratically accountable political branches, where
they belong, we should not infer that a text best read to displace
conflicting federal or state common law also waives, much less
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clearly waives, federal sovereign immunity. After all,
displacing federal common law does not take much clarity. Am.
Elec. Power Co. v. Connecticut, 564 U.S. 410, 423 (2011)
(“Legislative displacement of federal common law does not
require the same sort of evidence of a clear and manifest
congressional purpose demanded for preemption of state law.”
(cleaned up)). Even federal preemption of state common law
may rest upon an implication. PLIVA, Inc. v. Mensing, 564 U.S.
604, 621 (2011); Geier v. Am. Honda Motor Co., 529 U.S. 861,
886 (2000). A waiver of federal sovereign immunity may not.
Lane v. Pena, 518 U.S. 187, 192 (1996).
We therefore have no occasion to decide whether the
notwithstanding clause in the TRIA—or in any of the 2,170
identical notwithstanding clauses scattered across the U.S.
Code*—is best read in some cases as an instruction to set aside
conflicting “common law doctrines.” Cf. Brown v. United
Airlines, Inc., 720 F.3d 60, 67 (1st Cir. 2013) (“The word
‘provision,’ though inexact, is elastic enough to encompass
common law.”). We hold only that the notwithstanding clause
in the TRIA does not, “standing alone,” as the appellants would
have it, clearly waive federal sovereign immunity, and so we
read the ambiguous clause in favor of immunity.
2. The remainder of the text does not waive federal
sovereign immunity.
The appellants next argue the TRIA, read as a whole,
makes the waiver of federal sovereign immunity clear, either
by clarifying the intended scope of the notwithstanding clause,
or by independently waiving federal sovereign immunity.
*
See BYU Law, Corpus of the Current US Code (COCUSC),
Version 6.1.0 (search for “Notwithstanding any other provision of
law” yields 2,170 results), available via https://lawcorpus.byu.edu/.
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Here, the appellants rely upon the definition of “blocked asset”
in TRIA § 201(d)(2). A “blocked asset” is defined to include
“any asset seized or frozen” by the United States under either
of two different sanctions laws. TRIA § 201(d)(2)(A). The
appellants argue the TRIA would be impossible to follow in
“every case” and against “any asset seized or frozen” as
§ 201(a) of the TRIA requires if the United States could assert
federal sovereign immunity. That is particularly true in cases
involving the Government’s physical seizure of terrorist assets,
where federal sovereign immunity would seem always to
apply. Therefore, the appellants reason, the TRIA must waive
federal sovereign immunity.
A drawn-out implication from the definition of blocked
asset falls far short of the “unmistakable statutory expression”
required for a waiver of federal sovereign immunity. Cooper,
566 U.S. at 291. From start to finish, § 201(a) is about cases
brought “against a terrorist party.” There is no indication that
it also covers execution against the United States.
We find the text ambiguous, not clear. Even when a court
is confronted with a statute—clearly a “provision of law”—
determining the scope of TRIA § 201, and the extent to which
it comes into conflict with another statute, has proven difficult.
Courts have often rejected an expansive reading of the text of
the TRIA, similar to the one proposed by the appellants here,
as displacing anything that stands in the way of a particular
plaintiff’s collecting. See, e.g., Ministry of Defense and
Support for the Armed Forces of the Islamic Republic of Iran
v. Elahi, 556 U.S. 366, 385–86 (2009) (holding that § 201 of
the TRIA does not conflict with a “relinquishment provision”
added by the same legislation); United States v. Holy Land
Found. for Relief & Dev., 722 F.3d 677, 689 (5th Cir. 2013)
(holding that Ҥ 201 of the TRIA does not trump the criminal
forfeiture provisions of 21 U.S.C. § 853”); Stansell v.
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Revolutionary Armed Forces of Colombia, 771 F.3d 713, 730
(11th Cir. 2014) (holding “TRIA § 201 does not preempt
Florida law, and judgment creditors seeking to satisfy
judgments under it must follow the notice requirements of
Florida law”); Smith, 346 F.3d at 271 (declining to hold the
TRIA conflicts with “the President’s [International Emergency
Economic Powers Act] confiscation authority as it pertains to
blocked terrorist assets”). We too reject this overbroad reading
of the text.
The appellants also argue that if the TRIA does not waive
federal sovereign immunity, then the president’s power to
waive the requirements of § 201(a) in paragraph (b) of the
TRIA is superfluous. Subject to some exceptions, paragraph (b)
provides:
[T]he President may waive the requirements of subsection
(a) in connection with (and prior to the enforcement of)
any judicial order directing attachment in aid of execution
or execution against any property subject to the Vienna
Convention on Diplomatic Relations or the Vienna
Convention on Consular Relations.
This provision is not superfluous: The president may use this
authority to protect foreign diplomatic or consular property
from execution whenever the United States cannot raise the
defense of federal sovereign immunity. In those cases, the
president may waive the TRIA, thereby restoring the immunity
of the property under the FSIA. 28 U.S.C. § 1609.
The appellants argue there will be no such cases, but their
argument is premised upon a misunderstanding of federal
sovereign immunity. They assume that comprehensive
blocking regulations under U.S. sanctions laws are enough for
the United States to raise a meritorious defense of federal
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sovereign immunity. Possession, however, not regulation, is, as
we said above, “the sine qua non of federal sovereign
immunity.” Kalodner, 310 F.3d at 770. Foreign diplomatic or
consular assets need not be in the Government’s possession to
be blocked. Therefore, blocked assets may not always be
subject to the defense of federal sovereign immunity, and the
appellants’ surplusage argument fails.
The appellants finally argue that the remedial purpose and
legislative history of the TRIA show the Congress intended to
waive federal sovereign immunity, quoting a floor statement
by Senator Harkin that asserts as much. 148 Cong. Rec.
S11524-01, S11528 (2002). Because “[l]egislative history
cannot supply a waiver that is not clearly evident from the
language of the statute,” this argument fails. Cooper, 566 U.S.
at 290.
III. Conclusion
For the foregoing reasons, we hold (1) federal sovereign
immunity prevents the attachment and garnishment of oil
proceeds in a bank account of the United States and (2) the
TRIA does not waive that immunity. Because sovereign
immunity prevents the appellants from taking further steps to
seize the proceeds from the United States’ sale of the contested
oil, we have no occasion to reach the alternative grounds for
affirmance raised by the Government. The judgment of the
district court is, therefore,
Affirmed.