14‐121‐cv
Harrison v. Republic of Sudan
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2014
(Argued: January 5, 2015 Decided: September 23, 2015)
Docket No. 14‐121‐cv
RICK HARRISON, JOHN BUCKLEY, III, MARGARET LOPEZ, ANDY LOPEZ, KEITH
LORENSEN, LISA LORENSEN, EDWARD LOVE, ROBERT MCTUREOUS, DAVID MORALES,
GINA MORRIS, MARTIN SONGER, JR., SHELLY SONGER, JEREMY STEWART, KESHA
STIDHAM, AARON TONEY, ERIC WILLIAMS, CARL WINGATE, TRACEY SMITH, as
personal representative of the Estate of Rubin Smith,
Plaintiffs‐Appellees,
v.
REPUBLIC OF SUDAN,
Defendant‐Appellant,
ADVANCED CHEMICAL WORKS, AKA Advanced Commercial and Chemical Works
Company Limited, AKA Advanced Training and Chemical Works Company
Limited, Accounts & Electronics Equipments, AKA Accounts and Electronics
Equipments, et al.,
Defendants,
NATIONAL BANK OF EGYPT, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
Respondents.*
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Before:
LYNCH and CHIN, Circuit Judges,
and KORMAN, District Judge.**
Appeal from three orders of the United States District Court for the
Southern District of New York (Torres, J.), requiring respondent banks holding
assets of defendant‐appellant Republic of Sudan to turn over funds to satisfy an
underlying default judgment obtained by plaintiffs‐appellees against the
Republic of Sudan in the United States District Court for the District of
Columbia. The Republic of Sudan contends that (1) service of process did not
comply with the Foreign Sovereign Immunities Act, and (2) the District Court
erred by attaching assets of a foreign state to satisfy a judgment under the
The Clerk of Court is respectfully requested to amend the caption
*
as set forth above.
** The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
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Terrorism Risk Insurance Act without authorization from the Office of Foreign
Assets Control or a Statement of Interest from the Department of Justice.
AFFIRMED.
____________________________
ANDREW C. HALL (Brandon Levitt, on the brief),
Hall, Lamb and Hall, P.A., Miami, Florida,
for Plaintiffs‐Appellees.
ASIM GHAFOOR, Law Office of Asim Ghafoor,
Washington, D.C., for Defendant‐Appellant.
____________________________
CHIN, Circuit Judge:
On October 12, 2000, an explosive‐laden skiff pulled up alongside
the U.S.S. Cole, which was docked for refueling at the port of Aden, Yemen, and
detonated. Seventeen U.S. Navy sailors were killed in the attack, and forty‐two
wounded. Fifteen of the injured sailors and three of their spouses brought suit in
2010 in the United States District Court for the District of Columbia (the ʺD.C.
District Courtʺ) under the Foreign Sovereign Immunities Act (the ʺFSIAʺ), 28
U.S.C. §§ 1330, 1602 et seq., alleging that al Qaeda was responsible for the attack
and that the Republic of Sudan (ʺSudanʺ) had provided material support to al
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Qaeda. In 2012, the D.C. District Court entered a default judgment against
Sudan in the amount of $314,705,896.
Plaintiffs registered the default judgment in the United States
District Court for the Southern District of New York, and then sought to enforce
it against funds held by New York banks. The District Court below (Torres, J.)
issued the three turnover orders before us.
We hold that (1) service of process on the Sudanese Minister of
Foreign Affairs via the Sudanese Embassy in Washington, D.C., complied with
the FSIAʹs requirement that service be sent to the head of the ministry of foreign
affairs, and (2) the District Court did not err in issuing the turnover orders
without first obtaining either a license from the Treasury Departmentʹs Office of
Foreign Assets Control (ʺOFACʺ) or a Statement of Interest from the Department
of Justice (ʺDOJʺ).
We affirm.
STATEMENT OF THE CASE
Plaintiffs‐appellants are sailors and spouses of sailors injured in the
bombing of the U.S.S. Cole, who brought suit against Sudan in the D.C. District
Court on October 4, 2010, under 28 U.S.C. § 1605A, the terrorism exception to the
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FSIA, alleging that Sudan provided material support to al Qaeda, whose
operatives perpetrated the attack on the vessel.1
Pursuant to 28 U.S.C. § 1608(a)(3), plaintiffs filed an Affidavit
Requesting Foreign Mailing on November 5, 2010, asking that the Clerk of Court
mail the summons and complaint via registered mail, return receipt requested,
to:
Republic of Sudan
Deng Alor Koul
Minister of Foreign Affairs
Embassy of the Republic of Sudan
2210 Massachusetts Avenue NW
Washington, DC 2008
S. App. at 66. As represented by plaintiffs, Deng Alor Koul was the Minister of
Foreign Affairs of Sudan at the time.
On November 17, 2010, the Clerk of Court entered a Certificate of
Mailing certifying that the summons and complaint were sent via domestic
certified mail to the ʺhead of the ministry of foreign affairs,ʺ at the Sudanese
Embassy in Washington, D.C., id. at 67, and that the return receipt was returned
to the Clerk of Court and received on November 23, 2010. No attempt was made
to serve Sudan at the Ministry of Foreign Affairs in Khartoum, the capital. Sudan
1 One of the sailors died after the suit was brought. His spouse, as
representative of his estate, was substituted into the action.
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failed to serve an answer or other responsive pleading within sixty days after
plaintiffsʹ service, see 28 U.S.C. § 1608(d), and the Clerk of Court thus entered a
default against Sudan.
On March 30, 2012, after a hearing, the D.C. District Court
(Lamberth, J.) entered a default judgment against Sudan in the amount of
$314,705,896, Harrison v. Republic of Sudan, 882 F. Supp. 2d 23, 51 (D.D.C. 2012),
and found, inter alia, that service on Sudan had been proper, id. at 28.2 Following
entry of the default judgment, plaintiffs filed a second Affidavit Requesting
Foreign Mailing, requesting the Clerk to mail notice, this time of the Order and
Judgment and the Memorandum Opinion entered by the D.C. District Court, by
registered mail, return receipt requested. The Clerk certified in April 2012 that
the documents had been mailed to Sudanʹs Minister of Foreign Affairs via the
Sudanese Embassy in Washington, D.C. Sudan again failed to appear or contest
the judgment.
On October 2, 2012, plaintiffs registered the judgment in the
Southern District of New York, seeking to execute against respondent banks
After oral argument in the instant appeal, Sudan made a Rule 60(b)
2
motion in the D.C. District Court to set aside the default judgment. Harrison v. Republic
of Sudan, No. 10‐CV‐1689 (D.D.C. June 14, 2015) (Docket No. 55). Sudan moved to hold
this appeal in abeyance pending resolution of the motion for vacatur. We deny the
motion.
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holding Sudanese assets frozen pursuant to the Sudan Sanctions Regulations, see
31 C.F.R. Part 538, and on May 9, 2013, plaintiffs filed a Notice of Pending
Action.
On June 28, 2013, following a motion by plaintiffs, the D.C. District
Court entered an order finding that post‐judgment service had been effectuated,
and that sufficient time had elapsed following the entry of judgment and the
giving of notice of such judgment to seek attachment and execution, pursuant to
28 U.S.C. § 1610(c).3 On September 20, 2013, the district court below entered a
similar order, finding both that sufficient time had passed since entry of the
default judgment, and that service of the default judgment had been properly
effectuated. Sudan failed to challenge these orders.
Plaintiffs then filed a series of petitions in the Southern District
seeking turnover of Sudanese assets, including against Mashreqbank, BNP
Paribas, and Credit Agricole Corporate and Investment Bank. The District Court
granted the petitions, issuing turnover orders on December 12, 2013, December
13, 2013, and January 6, 2014, respectively. Plaintiffs served all three petitions, as
Section 1610(c) provides that ʺ[n]o attachment or execution . . .
3
shall be permitted until the court has ordered such attachment and execution after
having determined that a reasonable period of time has elapsed following the entry of
judgment and the giving of any notice required under section 1608(e) of this chapter.ʺ
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well as their § 1610(c) motion, by U.S. mail addressed to Sudanʹs Minister of
Foreign Affairs ‐‐ at that point Ali Ahmed Karti, who had replaced Deng Alor
Koul as represented by plaintiffs ‐‐ via the Embassy of Sudan in Washington.
Sudan filed its notice of appearance on January 13, 2014, only after
all three turnover orders were entered by the District Court below. The same
day, Sudan timely appealed.4
4 As a threshold matter, plaintiffs contend that this Court lacks
jurisdiction over the December 12, 2013 and December 13, 2013 orders, and that the
appeal is timely only with respect to the January 6, 2014 order, because the notice of
appeal was not filed until January 14, 2014. Sudan was required to file a notice of
appeal ʺwith the district court clerk within 30 days after entry of the judgment or order
appealed from,ʺ Fed. R. App. P. 4(a)(1)(A), and ʺthe timely filing of a notice of appeal in
a civil case is a jurisdictional requirement,ʺ Bowles v. Russell, 551 U.S. 205, 214 (2007).
Sudan did in fact file a notice of appeal on January 13, 2014, the last day for timely filing
of an appeal from the earliest order. Though Sudan neglected to manually select the
orders it was appealing on ECF, triggering a ʺfiling errorʺ in the docket entry, Docket
No. 34, the notice of appeal was accessible on the docket, the notice itself stated in plain
language the three orders at issue, and Sudan corrected the electronic error the next
day, by filing an otherwise identical order on January 14, 2014. Because there was no
ambiguity in Sudanʹs January 13, 2014 notice of appeal, the appeal is timely as to all
three turnover orders. See Becker v. Montgomery, 532 U.S. 757, 767 (2001)
(ʺ[I]mperfections in noticing an appeal should not be fatal where no genuine doubt
exists about who is appealing, from what judgment, to which appellate court.ʺ); see also
Contino v. United States, 535 F.3d 124, 127 (2d Cir. 2008) (ʺ[T]he failure to sign [a notice of
appeal] may be remedied after the time period for filing the notice has expired.ʺ); New
Phone Co. v. City of New York, 498 F.3d 127, 131 (2d Cir. 2007) (ʺOur jurisdiction . . .
depends on whether the intent to appeal from that decision is clear on the face of, or can
be inferred from, the notices of appeal.ʺ).
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DISCUSSION
Two issues are presented: (a) whether service of process on the
Sudanese Minister of Foreign Affairs via the Sudanese Embassy in Washington
complied with the requirement of 28 U.S.C. § 1608(a)(3) that service be sent to the
head of the ministry of foreign affairs, and (b) whether the District Court erred in
issuing turnover orders without first obtaining either an OFAC license or a DOJ
Statement of Interest explaining why no OFAC license was required.
A. Service of Process on the Minister of Foreign Affairs
The FSIA provides the sole means for effecting service of process on
a foreign state. See 28 U.S.C. § 1608(a); H.R. Rep. No. 94‐1487, at 23 (1976), as
reprinted in 1976 U.S.C.C.A.N. 6604, 6622 (ʺSection 1608 sets forth the exclusive
procedures with respect to service on . . . a foreign state . . . .ʺ). Four methods of
service are prescribed, in descending order of preference. 28 U.S.C. § 1608(a)(1)‐
(4). Plaintiffs must attempt service by the first method, or determine that it is
unavailable, before attempting subsequent methods in the order in which they
are laid out.
The first method is service ʺin accordance with any special
arrangement for service between the plaintiff and the foreign state or political
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subdivision.ʺ Id. § 1608(a)(1). In the absence of such a special arrangement, the
statute next permits service ʺin accordance with an applicable international
convention on service of judicial documents.ʺ Id. § 1608(a)(2). If neither of these
first two methods is available, plaintiffs may proceed according to the third
method, which permits service ʺby sending a copy of the summons and
complaint and a notice of suit, together with a translation of each into the official
language of the foreign state, by any form of mail requiring a signed receipt, to
be addressed and dispatched by the clerk of the court to the head of the ministry of
foreign affairs of the foreign state concerned.ʺ Id. § 1608(a)(3) (emphasis added).
Finally, the statute provides that if service cannot be made under the first three
paragraphs, service is permitted as a last resort ʺby any form of mail requiring a
signed receipt, to be addressed and dispatched by the clerk of the court to the
Secretary of State in Washington, District of Columbia, to the attention of the
Director of Special Consular Services ‐‐ and the Secretary shall transmit one copy
of the papers through diplomatic channels to the foreign state.ʺ Id. § 1608(a)(4).
Here, it is undisputed that service in conformity with the first two
methods was unavailable, because plaintiffs have no ʺspecial arrangementʺ for
service with Sudan, and because Sudan is not a party to an ʺinternational
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convention on service of judicial documents.ʺ Id. §1608(a)(1)‐(2). Thus,
§ 1608(a)(3) was the preferred method of service, and plaintiffs effectuated
service in accordance with this paragraph. In the underlying litigation in the
D.C. District Court, the Clerk of Court sent process by U.S. mail, return receipt
requested, to the Minister of Foreign Affairs, Deng Alor Koul, via the Embassy of
Sudan in Washington, D.C.
As an initial matter, plaintiffs complied with the first three clauses of
28 U.S.C. § 1608(a)(3). First, service could not be made under paragraphs (1) or
(2) of § 1608(a). Second, plaintiffs directed the Clerk of Court to include in the
service package a copy of the summons and complaint, and notice of suit, and
the Clerk confirmed that a translation of each was included. And third, plaintiffs
directed the clerk of court to serve Sudan by a ʺform of mail requiring a signed
receipt,ʺ id. § 1608(a)(3), and, after the clerk mailed the service package on
November 17, 2010, a return receipt was in fact received on November 23, 2010.5
At oral argument, counsel for Sudan represented that the Minister
5
of Foreign Affairs did not have actual notice of the underlying suit because at the time
of the mailing to the Embassy, Sudan was in the final months of a coalition government
with the Sudan Peopleʹs Liberation Movement, before South Sudan became
independent. According to counsel, due to the structure of the power‐sharing
agreement the Minister of Foreign Affairs would not have received notice from the
opposition‐controlled Embassy. But on the record before us we can look only at the
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On appeal, Sudan argues that service on Sudanʹs Minister of Foreign
Affairs via the Sudanese Embassy in Washington does not comply with the
requirement of the final clause of 28 U.S.C. § 1608(a)(3), that service be sent ʺto
the head of the ministry of foreign affairs.ʺ Sudan contends that service should
have been sent to Sudanʹs Minister of Foreign Affairs at the Ministry of Foreign
Affairs in Khartoum, and because service was ineffective under § 1608(a), the
D.C. District Court lacked personal jurisdiction over Sudan.
In answering this issue, one of first impression in our Circuit, we
look to the statutory language, cases that have interpreted this statute, and the
legislative history. See United States v. Allen, 788 F.3d 61, 66 (2d Cir. 2015).
On its face, the statute requires that process be mailed ʺto the head
of the ministry of foreign affairs of the foreign state.ʺ 28 U.S.C. § 1608(a)(3). It is
silent as to a specific location where the mailing is to be addressed. If Congress
had wanted to require that the mailing be sent to the head of the ministry of
foreign affairs in the foreign county, it could have said so. In § 1608(a)(4), for
example, Congress specified that the papers be mailed ʺto the Secretary of State
in Washington, District of Columbia, to the attention of the Director of Special
service as it was mailed and received by the Embassy, and whether that service satisfied
the statute.
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Consular Services,ʺ for transmittal to the foreign state ʺthrough diplomatic
channels.ʺ Id. § 1608(a)(4) (emphasis added). Nothing in § 1608(a)(3) requires
that the papers be mailed to a location in the foreign state, and the method
chosen by plaintiffs ‐‐ a mailing addressed to the minister of foreign affairs at the
embassy ‐‐ was consistent with the language of the statute and could reasonably
be expected to result in delivery to the intended person.
What little case law there is on this question accords with our
reading of § 1608(a)(3), that service on a minister of foreign affairs via an
embassy address constitutes literal compliance with the statute. This is not the
first time that Sudan has made the argument for a more restrictive reading of
§ 1608(a)(3). In Rux v. Republic of Sudan, the Eastern District of Virginia rejected
Sudanʹs contention that service had to be mailed directly to the Minister of
Foreign Affairs at the Ministry of Foreign Affairs in Khartoum, rather than to the
Minister of Foreign Affairs via the Sudanese Embassy. No. 04‐CV‐428, 2005 WL
2086202, at *16 (E.D. Va. Aug. 26, 2005), affʹd on other grounds, 461 F.3d 461 (4th
Cir. 2006). The district court found that ʺ[t]he text of § 1608(a)(3) does not
prohibit service on the Minister of Foreign Affairs at an embassy address.
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Indeed, the statute does not prescribe the place of service, only the person to
whom process must be served.ʺ Id.
In another case, Wye Oak Technology, Inc. v. Republic of Iraq, the
Eastern District of Virginia similarly held that service via an embassy is sufficient
to satisfy the FSIA as long as the service is directed to the Minister of Foreign
Affairs. No. 09‐CV‐793, 2010 WL 2613323, at *5‐6 (E.D. Va. June 29, 2010), affʹd on
other grounds, 666 F.3d 2015 (4th Cir. 2011). In Wye Oak, a summons was issued
by the clerk of the court to the ʺHead of the Ministry of Foreign Affairs of Iraq,
care of the Embassy of the Republic of Iraq in Washington, DC.ʺ Id. at *4
(internal quotation marks omitted). The district court found that:
Section (a)(3) does not impose a requirement that an
otherwise proper service package must be delivered to
a particular destination. No doubt, the address to
which the service package is directed must bear some
objectively reasonable relationship to the head of the
Ministry of Foreign Affairs and the chosen method of
delivery must have some reasonable expectation of
success. However, there is nothing on the face of
Section (a)(3) that prohibits [plaintiff]ʹs chosen method
of delivery to the head of the Ministry of Foreign
Affairs . . . .
Id. at *5. We agree.
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Cases where § 1608(a)(3) service was held to be ineffective involved
suits where service was sent ʺto a person other than the Minister of Foreign
Affairs, not to a place other than the Ministry of Foreign Affairs.ʺ Rux, 2005 WL
2086202, at *16 (emphasis in original); see Magness v. Russian Fedʹn, 247 F.3d 609,
613 (5th Cir. 2001) (finding service improper where complaint sent to Texas
Secretary of State for forwarding to Boris Yeltsin, and also sent directly to
Russian Deputy Minister of Culture); Transaero, Inc. v. La Fuerza Aerea Boliviana,
30 F.3d 148, 153‐54 (D.C. Cir. 1994) (finding service improper when made on ʺthe
Bolivian Ambassador and Consul General in Washington, and the Bolivian First
Minister and the Bolivian Air Force in La Paz[,] but never [on] the Ministry of
Foreign Affairs or the Secretary of Stateʺ); Alberti v. Empresa Nicaraguense De La
Carne, 705 F.2d 250, 253 (7th Cir. 1983) (holding that the Ambassador of
Nicaragua cannot be construed as the head of the ministry of foreign affairs).
The legislative record on § 1608(a)(3) is sparse, and sheds little light
on the question. The 1976 House Judiciary Committee Report seemed to
contemplate ‐‐ and reject ‐‐ service on an embassy in its discussion of proposed
methods of service under the FSIA:
A second means [of service], of questionable validity,
involves the mailing of a copy of the summons and
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complaint to a diplomatic mission of the foreign state.
Section 1608 precludes this method so as to avoid
questions of inconsistency with section 1 of article 22 of
the Vienna Convention on Diplomatic Relations, 23 UST
3227, TIAS 7502 (1972), which entered into force in the
United States on December 13, 1972. Service on an
embassy by mail would be precluded under this bill.
See 71 Dept. of State Bull. 458‐59 (1974).
H.R. Rep. No. 94‐1487, at 26 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6625.
This report, though, fails to make the distinction at issue in the instant case,
between ʺ[s]ervice on an embassy by mail,ʺ id. (emphasis added), and service on
a minister of foreign affairs via or care of an embassy. The House Report suggests
that § 1608 precludes service on an embassy to prevent any inconsistency with
the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227
(entered into force in United States Dec. 13, 1972) [hereinafter Vienna
Convention]. The relevant sections of the Vienna Convention say only that ʺ[t]he
premises of the mission shall be inviolable,ʺ and that ʺ[a] diplomatic agent shall
. . . . enjoy immunity from [the host stateʹs] civil and administrative jurisdiction.ʺ
Id. arts. 22, 31. In a case where the suit is not against the embassy or diplomatic
agent, but against the foreign state with service on the foreign minister via the
embassy address, we do not see how principles of mission inviolability and
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diplomatic immunity are implicated. Moreover, Sudan has not sought to rely on
this legislative history.
In this case, service was directed to the right individual, using the
Sudanese Embassy address for transmittal. Process was not served on the
foreign mission; rather, process was served on the Minister of Foreign Affairs via
the foreign mission. The requirement advanced by Sudan, that service be mailed
directly to a ministry of foreign affairs in the foreign country, makes little sense
from a reliability perspective and as a matter of policy. While direct mailing
relies on the capacity of the foreign postal service or a commercial carrier, mail
addressed to an embassy ‐‐ as an extension of the foreign state ‐‐ can be
forwarded to the minister by diplomatic pouch. See Rux, 2005 WL 2086202, at *16
(addressing the ʺinherent reliability and security associated with diplomatic
pouches,ʺ which, ʺunlike the United States Postal Service, DHL, or any other
commercial carrier, is accorded heightened protection under international law to
ensure safe and uncompromised delivery of documents between countries.ʺ
(citing Vienna Convention, art. 27)).
We conclude that plaintiffs complied with the plain language of the
FSIAʹs service of process requirements at 28 U.S.C. § 1608(a)(3).
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Finally, though not well developed in its brief, we construe Sudan as
also raising a question as to whether service was proper in the turnover
proceedings. Because we have found that service of the default judgment in the
underlying D.C. District Court case was proper, Sudanʹs argument fails. See 28
U.S.C. § 1608(e) (ʺA copy of [the] default judgment shall be sent to the foreign
state . . . in the manner prescribed for service in this section.ʺ); Peterson v. Islamic
Republic of Iran, 627 F.3d 1117, 1130 (9th Cir. 2010) (ʺThe FSIA is quite clear what
a plaintiff must serve on a foreign state before a court may enforce a default
judgment against that state: the default judgment. Service of post‐judgment
motions is not required.ʺ); Autotech Techs. LP v. Integral Research & Dev. Corp., 499
F.3d 737, 747‐49 (7th Cir. 2007) (holding that the federal rules for service applied
because the FSIAʹs service provisions do not cover post‐judgment motions).
Here, plaintiffs served all three turnover petitions at issue, as well as
their Motion for Entry of Order Finding Sufficient Time Has Passed to Seek
Attachment and Execution of Defendant / Judgment Debtorʹs Assets, by U.S. mail
addressed to Sudanʹs new Minister of Foreign Affairs, Ali Ahmed Karti, via the
Embassy of Sudan in Washington. Service of these post‐judgment motions was
not governed by the heightened standards of § 1608(a), and was required to
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adhere only to the notice provisions of the federal rules, with which plaintiffs
complied. See Fed. R. Civ. P. 5(a)(2) (ʺNo service is required on a party who is in
default for failing to appear. But a pleading that asserts a new claim for relief
against such a party must be served on that party under Rule 4.ʺ); Fed. R. Civ. P.
5(b)(2)(C) (ʺA paper is servedʺ by ʺmailing it to the personʹs last known address
‐‐ in which event service is complete upon mailing.ʺ).
B. Attachment of Assets Without an OFAC License or Case‐Specific DOJ
Statement of Interest
Sudan contends that the District Court erred in ordering the
turnover of sanctions‐controlled assets without first procuring either an OFAC
license or a case‐specific DOJ Statement of Interest stating that no OFAC license
was necessary. We disagree. The government has made its position known
through previous Statements of Interest that judgment holders under the
Terrorism Risk Insurance Act of 2002 (the ʺTRIAʺ), 28 U.S.C. § 1610 note, are
exempt from the normal OFAC licensure requirement, and the governmentʹs
position is not limited to the cases in which it filed the Statements.
Section 1605 of the FSIA creates exceptions to the general blanket
immunity of foreign states from the jurisdiction of U.S. courts, including the
ʺterrorism exception,ʺ 28 U.S.C. § 1605A, which Congress added to the FSIA in
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1996 to ʺgive American Citizens an important economic and financial weapon
against . . . outlaw statesʺ that sponsor terrorism. H.R. Rep. No. 104‐383, at 62
(1995). This exception allows courts to hear claims against foreign states
designated by the State Department as ʺstate sponsor[s] of terrorism.ʺ See
Calderon‐Cardona v. Bank of N.Y. Mellon, 770 F.3d 993, 996 (2d Cir. 2014).6
In an effort to further aid victims of terrorism in satisfying
judgments against foreign sponsors of terrorism, Congress enacted the TRIA, the
purpose of which is to ʺdeal comprehensively with the problem of enforcement
of judgments rendered on behalf of victims of terrorism in any court of
competent jurisdiction by enabling them to satisfy such judgments through the
attachment of blocked assets of terrorist parties.ʺ Weininger v. Castro, 462 F.
Supp. 2d 457, 483 (S.D.N.Y. 2006) (quoting H.R. Rep. No. 107‐779, at 27 (2002)).
Section 201(a) of the TRIA, which governs post‐judgment attachment in some
terrorism cases, provides, in relevant part:
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
The State Department currently designates Iran, Sudan, and Syria
6
as state sponsors of terrorism. Sudan has been designated as such since August 12,
1993. U.S. Depʹt of State, State Sponsors of Terrorism, http://www.state.gov/j/ct/list/c
14151.htm (last visited Sept. 22, 2015).
‐ 20 ‐
under section 1605A or 1605(a)(7) (as such section was
in effect on January 27, 2008) of title 28, United States
Code, 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.
TRIA § 201(a) (codified at 28 U.S.C. § 1610 note).
Sudanese assets in the United States are subject to just such a block,
pursuant to sanctions that began with Executive Order 13067 in 1997 and are
now administered by OFAC and codified at 31 C.F.R. Part 538. Ordinarily,
unless a plaintiff obtains a license from OFAC, he is barred from attaching assets
that are frozen under such sanctions regimes. See Estate of Heiser v. Bank of Tokyo
Mitsubishi UFJ, N.Y. Branch, 919 F. Supp. 2d 411, 422 (S.D.N.Y. 2013).7
Nonetheless, barring any contrary authority, a court will accept that no OFAC
7In the case of Sudan, there are two relevant provisions that forbid
the attachment of blocked assets. See 31 C.F.R. § 538.201(a) (ʺExcept as authorized by
regulations, orders, directives, rulings, instructions, licenses, or otherwise, no property
or interests in property of the Government of Sudan, that are in the United States . . .
may be transferred . . . .ʺ); 31 C.F.R. § 538.313 (ʺThe term transfer means . . . the issuance,
docketing, filing, or levy of or under any judgment, decree, attachment, injunction,
execution, or other judicial or administrative process or order, or the service of any
garnishment . . . .ʺ (emphasis added)).
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license is required on the authority of a DOJ Statement of Interest filed pursuant
to 28 U.S.C. § 517. Id. at 423.
The question, then, is whether § 201(a) of the TRIA and § 1610(g) of
the FSIA, which authorize the execution of § 1605A judgments against state
sponsors of terrorism, permit a § 1605A judgment holder to attach blocked
Sudanese assets without a license from OFAC. The government, in previous
Statements of Interest, has answered this question in the affirmative.
In Weininger, plaintiffs obtained a default judgment against Cuba
and sought turnover of funds blocked pursuant to the Cuban Assets Control
Regulations, held by a garnishee bank. 462 F. Supp. 2d at 499. The bank
petitioned for interpleader relief. In a Statement of Interest filed with the district
court, the DOJ indicated that ʺ[i]n the event the Court determines that the funds
are subject to TRIA, the funds may be distributed without a license from the
Office of Foreign Assets Control.ʺ Id. (alteration in original) (quoting DOJ Ltr.,
Jan. 6, 2006).
Several years later, in the D.C. District Court, the DOJ filed a
Statement of Interest that, while primarily addressing a different question, took
the position that ʺwhen a blocked asset comes within TRIAʹs scope, TRIA
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generally overrides OFACʹs regulations requiring that a license be obtained
before the asset is attached.ʺ Estate of Heiser v. Islamic Republic of Iran, No. 00‐CV‐
2329, 807 F. Supp. 2d 9 (D.D.C. 2011) (Docket No. 230).
Finally, in a related case, Bank of Tokyo, the government yet again
reiterated its position in a Statement of Interest filed with the district court. 919
F. Supp. 2d at 422‐23. In Bank of Tokyo, petitioners were family members and the
estates of seventeen Air Force servicemembers killed in the 1996 Khobar Towers
bombing in Saudi Arabia, and sought to satisfy the D.C. District Court judgment
against the Islamic Republic of Iran by compelling respondent banks in New
York to relinquish sanctions‐blocked funds. The district court held that
petitioners were entitled to attachment of Iranʹs assets, relying in part on the
letter from the U.S. Attorneyʹs Office. The Statement of Interest explicitly noted
that the DOJ had previously addressed this issue in another public filing, in
Weininger, 462 F. Supp. 2d 457. The district court noted that it ʺis aware of no
contrary authority that would require an OFAC license in this instance. It
accepts the Statement of Interestʹs assertion that no OFAC license is required.ʺ
Bank of Tokyo, 919 F. Supp. 2d at 423.
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Sudan contends that unlike in Bank of Tokyo, the District Court in the
instant case did not seek a Statement of Interest before issuing the turnover
order. While it is true that the District Court did not explicitly seek a new case‐
specific Statement from DOJ, it relied on the persuasive authority of the previous
Statements on the issue. In the December 12, 2013, December 13, 2013, and
January 6, 2014 turnover orders, the District Court wrote that ʺ[a]n OFAC license
is not necessary to disburse these funds and no notice is necessary to the
Sudanese agencies and instrumentalities.ʺ J. App. at 67, 73, 78 (citing Bank of
Tokyo, 919 F.Supp. 2d at 422; Heiser v. Islamic Republic of Iran, 807 F.Supp. 2d at 23;
Weininger, 462 F.Supp. 2d 457).
Sudan points to no authority that requires a court to seek a new
Statement of Interest in every case in which this issue arises. Unless or until the
United States changes its position, the Weininger and Heiser Statements of
Interests represent the governmentʹs clear intent to exempt TRIA judgment
holders from sanctions regime OFAC licensure requirements. Because we find
that the District Court properly relied on the Weininger and Heiser letters, we
need not reach appelleesʹ alternative argument for affirmance, that as a matter of
law, even without recourse to a Statement of Interest, an OFAC license is
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unnecessary to distribute blocked assets to a TRIA judgment holder. See, e.g.,
Rubin v. Islamic Republic of Iran, 709 F.3d 49, 54 (1st Cir. 2013) (ʺTRIA thereby
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.ʺ).
Once a district court determines that blocked assets are subject to the
TRIA, those funds may be distributed without a license from OFAC. Plaintiffs in
this case obtained an underlying § 1605A terrorism judgment from the D.C.
District Court and properly domesticated that judgment in the Southern District
of New York, asserting a right to execute against Sudanʹs assets pursuant to the
TRIA and 28 U.S.C. § 1610(g). The turnover orders then properly issued.
CONCLUSION
For the foregoing reasons, the orders of the district court are
AFFIRMED.
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