MURRAY BRAUN, APPELLANT v. UNITED STATES OF AMERICA, ET AL., APPELLEES
No. 21-5088
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 14, 2022 Decided April 19, 2022
Appeal from the United States District Court for the District of Columbia (No. 1:20-cv-02613)
Jerry S. Goldman argued the cause for amici curiae Christine I. O‘Neill, et al. in support of appellant. With him on the brief were Jodi Westbrook Flowers, Hon. Ethan Greenberg (Ret.), and Bruce Strong.
Joshua M. Koppel, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Acting Assistant Attorney General at the time of briefing, and Sharon Swingle, Attorney.
Opinion for the court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: This case traces its roots to an especially appalling atrocity: the killing of a three-month-old girl by a Hamas terrorist. Unable to undo the human toll of such attacks, Congress has sought to provide victims with monetary compensation through a fund established by the Justice for United States Victims of State Sponsored Terrorism Act. Pursuant to that statute, known as the “Terrorism Act,” the child‘s grandfather, Murray Braun, has received roughly $250,000 of a multimillion-dollar judgment against the Islamic Republic of Iran, a state sponsor of terrorism. Contending that the law requires more prompt and regular payment to claimants like himself, Braun sued the federal officials administering the fund. The district court concluded that the government‘s distribution of funds was consistent with the statute and dismissed the complaint. For the reasons set forth below, we affirm.
I.
The Foreign Sovereign Immunities Act authorizes courts to order foreign state sponsors of terrorism to pay damages to their victims. See
In addition to establishing the fund, the Terrorism Act sets forth rules for the fund‘s administration. If the fund‘s balance exceeds $100 million, the Attorney General must appoint a special master,
In 2019, after the fund had made two rounds of payments, Congress amended the Terrorism Act through the United States Victims of State Sponsored Terrorism Fund Clarification Act.
Following the attack, Chaya Zissel‘s estate, parents, and grandparents filed suit against several defendants, including the Islamic Republic of Iran as a state sponsor of Hamas. When the defendants failed to appear, the district court entered default judgments for the plaintiffs. $1 million to Chaya Zissel‘s estate; $8.75 million to each parent; $2.5 million to each grandparent; and $150 million in punitive damages.
Murray Braun, Chaya Zissel‘s grandfather, then applied to the fund for compensation. He was found eligible for $2.5 million and received almost $105,000 from the second-round distribution in January 2019. In August 2020, he was notified that he would receive an additional $146,000 from the third-round distribution. That same summer, the fund announced that there would be no fourth-round distribution in 2021 because insufficient funds were available.
In September 2020, after receiving notice of his third-round entitlement but before receiving payment, Braun filed this action against the fund‘s administrators. He sought declaratory and injunctive relief on four claims: (1) that the Clarification Act‘s increased percentage provision applies to civil penalties collected between the passage of the Terrorism Act and the Clarification Act; (2) that the fund is obligated to make a supplemental payment reflecting the fund‘s increased share of those past penalties; (3) that the Attorney General must appoint a special master who must make a distribution when the fund‘s balance exceeds $100 million; and (4) that the fund
The government moved to dismiss, the district court granted the motion. Braun v. United States, 531 F. Supp. 3d 130 (D.D.C. 2021), and Braun now appeals. Our review is de novo. Webb v. United States Veterans Initiative, 993 F.3d 970, 971-72 (D.C. Cir. 2021) (noting that dismissals under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) are reviewed de novo).
II.
We begin with Braun‘s first claim, that the amendment increasing the fund‘s share of civil penalties from fifty to seventy-five percent applies not only to penalties collected after the Clarification Act amendments, but also retroactively to penalties assessed between the passage of the Terrorism Act (December 18, 2015) and the Clarification Act (November 21, 2019). In support, Braun relies on language in the Terrorism Act as originally enacted, which entitled the fund to “[o]ne-half of all funds, and one-half of the net proceeds from the sale of property, forfeited or paid to the United States after the date of enactment of this Act“—“after December 18, 2015.”
Braun‘s interpretation of the statute is untenable for several reasons. To begin with, as the district court pointed out, the Clarification Act‘s applicability provision expressly states that “[t]his section and the amendments made by this section shall take effect on the date of enactment of this Act,” November 21, 2019.
Braun insists that the statute‘s “plain language” requires that we give effect to provisions retaining the 2015 date. Appellant‘s Reply Br. 4. But this would produce an absurd result. Read literally, the statute as amended requires the government to deposit the requisite percentages from criminal and civil penalties into the fund “[b]eginning on December 18, 2015,”
Two other interpretive rules further undermine Braun‘s position. First, because “[r]etroactivity is not favored in the law,” “congressional enactments . . . will not be construed to have retroactive effect unless their language requires this
Braun argues that “retroactive application of a new law really has nothing to do with this case,” because he seeks only “to apply the current law, exactly as it is written, to the present.” Appellant‘s Br. 27. Yet even so viewed, Braun‘s reading runs up against a second obstacle: as Congress itself has made clear, “[a] law may be construed to make an appropriation out of the Treasury . . . only if the law specifically states that an appropriation is made.”
Because the statute nowhere authorizes the retroactive increase of penalties collected prior to the Clarification Act amendments, we shall affirm the district court‘s dismissal of
Braun‘s third claim, as argued to the district court, sought an injunction “requiring the Attorney General ‘to appoint a [s]pecial [m]aster going forward if there is more than $100 million in the [f]und’ and ordering that the [s]pecial [m]aster ‘make a distribution in 2021.‘” Braun, 531 F. Supp. 3d at 138 (quoting Compl. ¶¶ 4, 59). The district court dismissed the first part of this claim because on January 4, 2021, the fund appointed a special master, rendering the request for an appointment moot. Id.; see also True the Vote, Inc. v. IRS, 831 F.3d 551, 558 (D.C. Cir. 2016) (“Even where a case once posed a live controversy when filed, the mootness doctrine requires the Court to refrain from deciding it if events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” (cleaned up)). Braun did not challenge this aspect of the district court‘s decision in his appellate briefs. But two days before oral argument, in a supplemental letter to the court, he argued that the current special master‘s term had expired “about five weeks ago, on January 4, 2022,” and that his request for an injunction to appoint a special master “is [therefore] no longer moot.” 28(j) Letter at 1-2, Braun v. United States, No. 21-5088 (Feb. 12, 2022). We decline to resolve without briefing this late-raised issue, as well as his even-later-raised argument that appointment of a special master must be by the Attorney General. 28(j) Letter at 1, Braun v. United States, No. 21-5088 (Feb. 13, 2022). If Braun wishes to pursue these arguments, he may file an amended complaint in the district court.
The second part of Braun‘s claim concerns the statutory timeline applicable to payments other than the third-round distribution. The statute provides that “on January 1 of the second calendar year that begins after the date of the initial payments . . . the [s]pecial [m]aster shall authorize additional payments on a pro rata basis . . . and shall authorize additional payments for eligible claims annually thereafter.”
To understand the parties’ dispute, we think it helpful to describe the notices the fund sent to Braun regarding his claim. On May 18, 2017, the fund sent Braun a notice that it had “determined [his] claim to be eligible” for $2.5 million. First Notice, Appendix (Appx.) 72. The letter continued:
Although the . . . [f]und has determined that your claim is eligible, please note that there is no guarantee that you will receive the total eligible claim amount. Rather, the amount of your first payment will be calculated after the . . . [f]und determines the amount of funds available from which to pay claims and after
any statutory limitations are applied to the total eligible claim amount shown above. You will be notified about the exact amount of your first payment after the [s]pecial [m]aster authorizes the next distribution in January 2019.
Id. A year and a half later, on December 13, 2018, the fund notified Braun that his “allocated payment amount for this distribution [was] $104,887.61.” Second Notice, Appx. 74. The notice instructed Braun to complete a direct deposit form if he had not already done so but otherwise articulated no further steps necessary to receive payment. Id. Braun received payment the following month. Then, in August 2020, Braun was sent a letter stating that his third-round distribution would be $145,963.33. Lee Decl., Appx. 107 ¶ 4.
Braun contends that none of these notices satisfy the Terrorism Act‘s requirement to “authorize . . . payment[].”
There is a third possible interpretation: that payment authorization occurs when the fund issues a notice allocating a specific payment amount for distribution. Viewed this way, it was the December 2018 letter advising Braun that his “allocated payment amount for this distribution [was] $104,887.61” that authorized payment. Second Notice, Appx. 74. Interpreting payment authorization this way would serve two purposes. First, it would require more than a threshold determination that a claim is eligible and comport with the statute‘s requirement that the fund “authorize additional payments on a pro rata basis” and do so “annually.”
At oral argument, however, Braun‘s counsel disavowed this interpretation, contending that the notice merely “tell[s] somebody how much they might one day expect to get if payment is ever made,” which would, in his view, allow an unacceptable delay in actual payment. This leaves us with Braun‘s untenable reading of the statute, which the district court correctly rejected. We shall therefore affirm the district court‘s dismissal of Braun‘s fourth claim.
III.
For the foregoing reasons, we affirm.
So ordered.