Calderon-Cardona v. Bank of New York Mellon
770 F.3d 993
2d Cir.2014Background
- Petitioners seek to enforce a 2010 judgment against North Korea by attaching blocked electronic funds transfers (EFTs) in U.S. banks under TRIA §201 and FSIA §§1610(f)(1), 1610(g).
- North Korea was designated a state sponsor of terrorism in 1996 but its designation was rescinded on Oct. 11, 2008; the underlying judgment was entered Aug. 5, 2010.
- The district court denied turnover, ruling NK was not a terrorist party under TRIA §201 and that the EFTs were not NK property under FSIA §1610(g); it also held §1610(f)(1) waiver impeded relief.
- The court held that TRIA §201 does not apply because the judgment was not entered against a terrorist party at the time of judgment, but that §1610(g) may permit attachment of EFTs if they are NK property or the property of NK agencies or instrumentalities; remand for discovery to resolve those factual issues.
- The opinion concludes with affirmation-in-part, vacatur-in-part, and remand for further proceedings to determine attachment under §1610(g) after discovery; §1610(f)(1) remains unavailable due to the executive waiver.]
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| TRIA §201 applicability when NK not designated terrorist at judgment | Calderon-Cardona argues judgment against NK fits §201. | BNY Mellon et al. argue §201 applies to judgments against terrorist parties. | TRIA §201 not applicable; judgment not issued against a terrorist party when NK no longer designated. |
| Whether EFTs midstream are NK property or instrumentality under §1610(g) | Petitioners contend EFTs are NK property to satisfy judgment. | Respondents contend EFTs may not be NK property; need analysis. | Attachment depends on whether EFTs are NK property or property of NK agencies/instrumentalities; remand for discovery. |
| Effect of §1610(f)(1) waiver on attachment | §1610(f)(1) waiver should not bar relief. | Presidential Determination 2001-03 waives §1610(f)(1) attachment remedy. | §1610(f)(1) waiver remains effective; no attachment under §1610(f)(1). |
| Need for discovery to resolve entity identities in EFT chain | Discovery will show NK involvement in EFT transmission. | Record incomplete; no determinations yet. | Remand for discovery to resolve whether transmitting entities were NK agencies/instrumentalities. |
Key Cases Cited
- Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009) (midstream EFTs—who has rights depends on NY UCC Art. 4-A analysis; EFTs are not the property of originator or beneficiary while in transit)
- Asia Pulp & Paper Co. v. Export-Import Bank of U.S., 609 F.3d 111 (2d Cir. 2010) (interprets NY UCC and EFT property interests for attachment)
- United States v. Santos, 541 F.3d 63 (2d Cir. 2008) (statutory interpretation of TRIA §201(a) and terrorist party concept)
- Ministry of Defense & Support for the Armed Forces of the Republic of Iran v. Elahi, 556 U.S. 366 (2009) (concerning limitations on state liability and sanctions context for terrorism-related statutes)
- Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (statutory interpretation guidance; regulatory scheme coherence)
- Palestine Monetary Authority v. Strachman, 873 N.Y.S.2d 281 (App. Div. 1st Dept. 2009) (remand for discovery where government entity involvement is unclear in EFT chain)