JOHN DOES 1-7, APPELLANTS v. TALIBAN, ET AL., APPELLEES, INTERNATIONAL MONETARY FUND; INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT, GARNISHEE-APPELLEES
No. 22-7134
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided April 26, 2024
Argued October 27, 2023
Before: SRINIVASAN, Chief Judge, and MILLETT and PAN, Circuit Judges.
John Thornton argued the cause and filed the briefs for appellants.
Ginger D. Anders argued the cause for garnishee-appellee International Bank for Reconstruction and Development. With her on the brief was Sarah E. Wiener.
James R. Newland, Jr. argued the cause for garnishee-appellee International Monetary Fund. With him on the brief were Kiran Aftab Seldon and Owen R. Wolfe.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: In 2020, seven victims of a 2016 terrorist bombing in Afghanistan obtained multi-million-dollar default judgments against the Taliban, Al-Qaeda, and the Haqqani Network. Following the Taliban‘s 2021 takeover of Afghanistan, those seven victims, suing as John Doe plaintiffs (“John Does“), sought to attach assets presently held by the International Monetary Fund and the International Bank for Reconstruction and Development (commonly known as the “World Bank“). The John Does contend that these assets are subject to execution because, in their view, they belong to the Afghan government or the central bank of Afghanistan, and the Taliban has become the de facto Afghan government and the Afghan central bank its “instrumentality.”
We cannot address the merits of the John Does’ claims. Congress has accorded the Fund and the World Bank statutory immunity from suit in United States courts under the International Organizations Immunities Act and Foreign Sovereign Immunities Act. Because our hands are jurisdictionally tied in this case, we affirm the district court‘s order quashing the John Does’ writs of execution and dismissing their attachment proceeding.
I
A
The Foreign Sovereign Immunities Act (“FSIA“) “confers on foreign states two kinds of immunity.” Republic of Argentina v. NML Cap., Ltd., 573 U.S. 134, 142 (2014). First, it provides that “foreign state[s] shall be immune from the jurisdiction of the courts of the United States and of the States” unless their conduct falls within one of the statutorily enumerated exceptions.
This distinction between foreign states’ jurisdictional and execution immunity is grounded in international law. See RESTATEMENT (FOURTH) OF THE LAW OF FOREIGN RELATIONS OF THE UNITED STATES § 453(6)(b) (Am. L. Inst. 2018) (“Under international law * * * a waiver of immunity from suit does not imply the waiver of immunity from attachment of property, and a waiver of immunity from attachment of property does not imply a waiver of immunity from suit.“).1
As a result of the FSIA‘s dual immunities, parties seeking judicial enforcement of an award against a foreign state face two hurdles: They must “establish both that the foreign state is not immune from suit and that the property to be attached or executed against is not immune” from execution. TIG Ins. Co. v. Republic of Argentina, 967 F.3d 778, 781 (D.C. Cir. 2020) (emphases added).
The World Bank and Fund are, of course, not foreign states. But because they are presidentially designated international organizations, the International Organizations Immunities Act (“IOIA“) affords them the “same immunity from suit and every form of judicial process as is enjoyed by foreign governments” under the FSIA.
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 1605(a)(7) of title 28, * * * 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.
B
In January 2016, a suicide bomber detonated a truck loaded with explosives in a residential compound for international workers in Kabul, Afghanistan. Compl. ¶¶ 36-38, John Does v. Taliban, No. 20-cv-00605 (N.D. Tex. Mar. 20, 2020), ECF No. 1. Among those injured by the resulting blast were the seven John Does, who were working there as State Department civilian contractors. Compl. ¶¶ 1-7. The John Does subsequently sued the Taliban, Al-Qaeda, and the Haqqani Network, and each obtained multi-million-dollar default judgments that collectively totaled almost $140 million. Final Default Judgment, John Does v. Taliban, No. 20-cv-00605 (N.D. Tex. Nov. 5, 2020), ECF No. 22.
In August 2021, the Taliban seized control of Afghanistan as well as several governmental entities, including the Afghan central bank. John Does 1 Through 7, No. 21-mc-00110, 2022 WL 4103853, at *1 (D.D.C. Sept. 8, 2022). The John Does subsequently initiated this post-judgment collection action against the World Bank and the Fund. They allege that the World Bank and the Fund hold assets belonging to Afghanistan or to its central bank. Id. The John Does contend specifically that the Taliban has become the de facto government of Afghanistan and its central bank has become an “instrumentality” of the Taliban, so that any “blocked assets” belonging to either constitute “the blocked assets of [a] terrorist party * * * subject to execution” under Section 201(a) of the TRIA.
The John Does registered their default judgment with the United States District Court for the District of Columbia, and the Clerk of the Court then issued writs of attachment to both the World Bank and the Fund. John Does 1 Through 7, 2022 WL 4103853, at *1. After trying and failing to serve the World Bank and Fund in the traditional ways, the John Does’ process server ultimately left the writs at the feet of security guards at each entity‘s Washington, D.C. office. Id. Following the World Bank‘s and Fund‘s refusals to answer interrogatories appended to those writs, the John Does moved in the district court for final judgment. Id. The World Bank and Fund responded and moved to
The district court granted the World Bank‘s and Fund‘s motions to quash. John Does 1 Through 7, 2022 WL 4103853, at *4. The court found the TRIA inapplicable in this case. Id. at *3-4. The court first expressed “serious reason to doubt that the funds [the John Does sought to recover] belong to Afghanistan,” which in itself would make the TRIA inapplicable. Id. at *3. The district court added that, even if the assets belonged to Afghanistan, it could not “recognize an ownership claim by the Taliban” to Afghan assets since “[t]he United States has not recognized the Taliban as the legitimate government of Afghanistan.” Id. For those reasons, the John Does failed to “show[] that the assets at issue fall under the TRIA,” and so they “ha[d] not shown that an exception to the Fund and the World Bank‘s immunity applies[.]” Id. at *4. On that basis, the district court found that it lacked jurisdiction in the case and granted the motions to quash. Id.
II
The district court held that the TRIA was inapplicable and that it therefore lacked subject matter jurisdiction. We have jurisdiction to review the district court‘s judgment under
We review questions of law de novo, including the district court‘s conclusions about its jurisdiction and the World Bank‘s and Fund‘s immunities. Nyambal v. International Monetary Fund, 772 F.3d 277, 280 (D.C. Cir. 2014). We review factual findings for clear error. Id.
III
We cannot address the merits of the John Does’ claims unless we first ensure that we have jurisdiction over the World Bank and the Fund. Because we conclude that their statutory immunity remains intact, the district court properly entered judgment dismissing the case against both entities. See Zuza v. Office of the High Representative, 857 F.3d 935, 938 (D.C. Cir. 2017) (explaining that properly asserted immunity under the IOIA “[r]emov[es] judicial power to adjudicate a case [and] compels its dismissal“).
The starting point under the IOIA and its incorporated FSIA provisions is that the World Bank and Fund are immune from suit in the courts of the United States.
Instead, the John Does rest their entire jurisdictional case on Section 201(a) of the TRIA. In the John Does’ view, that provision gives this court both subject matter jurisdiction over this action against the World Bank and Fund, and the authority to execute against any Afghan state assets they currently hold.
By way of reminder, 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 under section 1605(a)(7) of title 28, * * * 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.
That provision does not speak to the World Bank‘s or Fund‘s jurisdictional immunity from suit. Rather, Section 201(a), “[f]rom start to finish,” concerns the rights of persons who already have in hand valid judgments against terrorist parties to recover assets in satisfaction of those judgments. Greenbaum v. Islamic Republic of Iran, 67 F.4th 428, 434 (D.C. Cir. 2023); see Ministry of Def. & Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, 556 U.S. 366, 374 (2009) (The TRIA “permit[s] a person with a terrorism-related judgment to attach an asset of the responsible ‘terrorist’ state to satisfy the judgment[.]“) (emphasis added); Weinstein v. Islamic Republic of Iran, 609 F.3d 43, 50 (2d Cir. 2010) (“The purpose of [Section 201(a)] is to deal comprehensively with the problem of enforcement of judgments issued to victims of terrorism in any U.S. court by enabling them to satisfy such judgments from the frozen assets of terrorist parties.“) (quoting 148 Cong. Rec. S11528 (daily ed. Nov. 19, 2002) (statement of Sen. Harkin)) (emphases added).
As a result, asset recovery under Section 201(a) can come only from parties over whom subject matter jurisdiction has already been established. Said another way, to execute on a judgment against an entity ordinarily protected by FSIA immunity, the plaintiff must show both (1) subject matter jurisdiction over—i.e., an abrogation of immunity for—the defendant holding the assets, and (2) statutory authority to execute the judgment against the assets. See TIG Ins. Co., 967 F.3d at 781. Section 201(a) speaks only to the latter. And the John Does have identified no jurisdictional basis in this case for the former.4
A
Nothing in the text of Section 201(a) mentions, let alone abrogates, foreign sovereign or organizational immunity. The statute does not employ any “‘clear’ jurisdictional language[,]” or even mention jurisdiction. Gonzalez v. Thaler, 565 U.S. 134, 142 (2012); cf. id. at 142-143 (requiring a “clear[] statement” before finding that an exhaustion requirement is jurisdictional). Nor does it reference “immunity” or any of the FSIA‘s exceptions to sovereign immunity.
Instead, Section 201(a) talks exclusively about post-judgment execution proceedings. Yet such post-judgment proceedings necessarily presuppose a valid judgment arising out of a proper exercise of jurisdiction over the defendant against whom the judgment was obtained. Cf. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94-95 (1998) (“The requirement that jurisdiction be established as a threshold matter ‘springs from the nature and limits of the judicial power of the United States’ and is ‘inflexible and without exception.‘“) (formatting modified) (quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)). Section 201(a) says nothing about creating jurisdiction in the first instance, whether over the defendants themselves or over third parties alleged to hold the defendants’ assets.
The absence of any jurisdictional-immunity hook in Section 201(a) largely closes the door on the John Does’ argument that the statute provides a basis for proceeding in court against the World Bank and Fund in the first place. That is because the FSIA, which governs the World Bank‘s and Fund‘s immunity from suit, see
Notably, each of the FSIA‘s exceptions to immunity speaks in explicit jurisdictional terms—enumerating those circumstances in which “[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States[.]”
At most, Section 201(a) contains one veiled cross-reference to jurisdiction. But it hurts rather than helps the John Does. Specifically, Section 201(a) applies “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
The John Does’ reading also would nullify the role that the FSIA accords the Executive Branch in deciding which foreign states may be held liable for acts of terrorism. The FSIA‘s terrorism exception applies only if “the foreign state was designated as a state sponsor of terrorism at the time the [terrorist] act * * * occurred, or was so designated as a result of such act” by the Secretary of State.
Yet the John Does argue that, even absent such an Executive-Branch designation, foreign sovereigns or international organizations may be brought before United States courts to answer for acts of terrorism under the TRIA so long as the sought-after assets are subject to the statute. But that theory ignores Congress‘s explicit choice—made not once but twice in the TRIA itself—to emphasize the importance of an affirmative designation by the Executive Branch before a foreign sovereign may be haled into federal court for acts of terrorism. Reading Section 201(a) to provide an independent basis for abrogating foreign states’ jurisdictional immunity as to terrorism-related judgments—with or without any state-sponsor-of-terrorism designation—would leave those provisions no work to do.
B
The John Does lean heavily on Section 201(a)‘s prefatory clause, which clarifies that Section 201(a) should apply “[n]otwithstanding any other provision of law[.]”
We rejected essentially the same argument in Greenbaum v. Islamic Republic of Iran, 67 F.4th 428 (D.C. Cir. 2023). There, plaintiffs sought to recover Iranian assets being held by the United States. Id. at 430. The United States’ sovereign immunity ordinarily would block any such action. Id. at 431. But the Greenbaum plaintiffs argued that, so long as they sought “blocked assets” subject to the TRIA, the TRIA‘s “notwithstanding” clause erased that immunity barrier. Id. at 432.
We held that the “notwithstanding” clause in Section 201(a) was too indirect of a formulation to provide the needed clarity to abrogate sovereign immunity. Greenbaum, 67 F.4th at 432-434. Instead, we held that the function of the notwithstanding clause is to signal that the TRIA prevails over provisions of law that conflict with the substantive scope of the TRIA. Id. at 433. Said another way, “[t]he reach of the notwithstanding clause is * * * necessarily determined by the substantive text that follows it[.]” Id. And because that substantive text “has nothing express to say about * * * sovereign immunity,” “the notwithstanding clause cannot aid” the John Does. Id.
For example, the FSIA separately contains an exception to execution immunity for frozen assets of foreign state sponsors of terrorism.
Nor is this court at liberty to construe any ambiguity in the notwithstanding clause to open the jurisdictional door to suing foreign states. The FSIA is the “sole” route to subject matter jurisdiction over sovereign nations and, by virtue of the IOIA, international organizations. Amerada Hess, 488 U.S. at 434. If abrogation of immunity is to occur through another route, that decision must be made not by judicial inference, but by the Political Branches that are constitutionally charged with conducting foreign relations and making the sensitive diplomatic and national-security judgments that pervade waivers of foreign sovereign immunity. Borochov v. Islamic Republic of Iran, 94 F.4th 1053, 1062 (D.C. Cir. 2024) (“The courts, in other words, should not open the door to litigation against foreign governments that the Political Branches have not clearly authorized.“); see Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 116 (2013) (applying presumption against extraterritoriality in part to “ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches“). Such delicate and difficult judgments about international relations fall beyond the judicial ken. Borochov, 94 F.4th at 1062; see Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 5 (2015) (Certain “difficult and complex [questions] in international affairs * * * are committed to the Legislature and the Executive, not the Judiciary.“). So unless and until Congress plainly says otherwise, any statutory ambiguity concerning a waiver of foreign immunity outside the FSIA must be resolved in favor of its preservation.
C
We do not stand alone in reading Section 201(a) to do no more and no less than its text provides—that is, to clear execution-related barriers to recovery against defendants whose immunity from suit has already been lost. The Supreme Court took the same tack in Ministry of Defense & Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, 556 U.S. 366 (2009). There, the Court rejected the argument that Section 201(a) displaces a provision
The Supreme Court rejected Elahi‘s argument, explaining that “Congress could not have intended the [notwithstanding clause] to narrow so dramatically an important provision [of the Victims Protection Act] that it inserted in the same statute.” Elahi, 556 U.S. at 386. The Court also “point[ed] out that the [legislative] history suggests that Congress placed the ‘notwithstanding’ clause in § 201(a) * * * to eliminate the effect of any Presidential waiver issued under
Other courts have likewise “rejected an expansive reading of the text of the TRIA * * * as displacing anything that stands in the way of a particular plaintiff‘s collecting.” Greenbaum, 67 F.4th at 434; see id. at 434-435 (collecting cases); Stansell v. Revolutionary Armed Forces of Columbia, 771 F.3d 713, 729-730 (11th Cir. 2014) (reasoning that Section 201(a)‘s notwithstanding clause does not displace “Florida‘s requirements that owners of property being garnished or executed against are entitled to notice“); Smith ex rel. Estate of Smith v. Federal Reserve Bank of N.Y., 346 F.3d 264, 271-272 (2d Cir. 2003) (concluding that the TRIA‘s notwithstanding clause does not alter President‘s separate authority to confiscate certain assets); United States v. Holy Land Found. for Relief & Dev., 722 F.3d 677, 688 (5th Cir. 2013) (rejecting the “sweeping assertion * * * that the [TRIA‘s] ‘notwithstanding’ clause trumps any other law that has the incidental effect of removing funds from the reach of judgment creditors“).
The Supreme Court‘s and other courts’ reading of Section 201(a) reinforces our holding that the notwithstanding clause addresses execution-related barriers to enforcing judgments, and nothing further.
D
1
The John Does point to decisions of the Second and Ninth Circuits that have read Section 201(a) to provide a basis for jurisdiction over a state sponsor of terrorism‘s “agenc[ies] or instrumentalit[ies].”
That is not correct. In both Weinstein and Bennett, plaintiffs with valid judgments against Iran sought to enforce those judgments against Bank Melli—an entity wholly owned by Iran and “undisputed[ly] * * * an instrumentality of Iran under the FSIA.” Bennett, 825 F.3d at 957; see Weinstein, 609 F.3d at 46-47. The issue in those cases was whether Bank Melli, which was not named in the plaintiffs’ judgments, was immune from jurisdiction. See Weinstein, 609 F.3d at 48; Bennett, 825 F.3d at 958.
The Second and Ninth Circuits each rejected Bank Melli‘s claim of immunity, reasoning that Section 201(a) “clearly differentiates between the party that is the subject of the underlying judgment itself, which can be any terrorist party (here, Iran), and parties whose blocked assets are subject to execution or attachment, which can include not only the terrorist party but also ‘any agency or instrumentality of that terrorist party.‘” Weinstein, 609 F.3d at 49 (quoting
That predicate loss of immunity by the World Bank and the Fund is exactly what is missing in this case. The John Does did not obtain jurisdiction over the World Bank or Fund in obtaining their damages judgment against the Taliban, Al-Qaeda, and the Haqqani Network. And neither the World Bank nor the Fund is even arguably an agent or instrumentality of the Taliban.
To that point, the Second Circuit has held that “[S]ection 201(a) provides for federal court jurisdiction over execution and attachment proceedings involving the assets of a foreign sovereign * * * only where ‘a valid judgment has been entered’ against the sovereign” itself. Vera v. Banco Bilbao Vizcaya Argentaria, 946 F.3d 120, 133 (2d Cir. 2019) (formatting modified) (quoting Vera v. Republic of Cuba, 867 F.3d 310, 321 (2d Cir. 2017)).
2
Lastly, the John Does argue that the World Bank‘s and Fund‘s refusals to answer interrogatories submitted to them before they appeared in the case entitled the John Does to judgment as a matter of law, or at least to an order requiring that
That is not so. To the extent the John Does argue that the district court could have entered judgment or required the World Bank and Fund to answer interrogatories without first determining its jurisdiction over them, that argument plainly fails. See, e.g., Nyambal, 772 F.3d at 280-281 (“[I]mmunity, where justly invoked, shields defendants not only from the consequences of litigation‘s results but also from the burden of defending [against it].“) (quoting Tuck v. Pan American Health Org., 668 F.2d 547, 549 (D.C. Cir. 1987)); see also
The John Does’ argument that the District of Columbia‘s garnishment procedures required the World Bank and Fund to assert an immunity defense within ten days or else waive it fares no better. See Opening Br. 32-33. For one thing, federal law affords the World Bank and Fund immunity.
For another thing, the World Bank and Fund asserted immunity in their first substantive filings in the district court on the schedule set by that court. John Does 1 Through 7, 2022 WL 4103853, at *1. The John Does cite no authority finding waivers of jurisdictional immunity based solely on the plaintiffs’ schedule for filing interrogatories, nor would our precedent allow such a conclusion. See Inversora Murten, S.A. v. Energoprojekt-Niskogradnja Co., 264 F. App‘x 13, 15 (D.C. Cir. 2008) (finding no waiver of jurisdictional immunity by the World Bank where it “assert[ed] it in a letter to [the other party] rather than in a formal motion to the court“); cf. Delta Foods Inc. v. Republic of Ghana, 265 F.3d 1068, 1069-1071 (D.C. Cir. 2001) (finding that Ghana waived jurisdictional immunity after it fully participated in district court litigation without raising immunity, subsequently lost, filed an appeal without raising jurisdictional immunity, and then finally raised the argument for the first time in a motion for relief from judgment); id. at 1071 (noting that “Ghana arguably could have asserted sovereign immunity for the first time in the court of appeals because the objection goes to the subject matter jurisdiction of the court“).
Were all that not enough, the John Does’ argument overreads the relevant provisions of the D.C. Code. Certainly District law specifies that garnishees should respond to interrogatories within ten days of proper service.
V
While the TRIA provides a powerful tool for plaintiffs seeking to satisfy judgments
So ordered.