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Lamberth Opinion Marines 2009
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

IN RE:

ISLAMIC REPUBLIC OF IRAN
TERRORISM LITIGATION
Civil Action Nos.

01-CV-2094, 01-CV-2684, 02-CV-1811,
03-CV-1486, 03-CV-1708, 03-CV-1959,
05-CV-2124, 06-CV-473, 06-CV-516,
06-CV-596, 06-CV-690, 06-CV-750,
06-CV-1116, 07-CV-1302, 08-CV-520,
08-CV-531, 08-CV-1273, 08-CV-1615,
08 CV-1807, 08-CV-1814

I.
TABLE OF CONTENTS
I. Table of Contents............................................................................................................. 1
II. Introduction.................................................................................................................. 3
III. Discussion.................................................................................................................... 9
A. Historical Overview of the FISA State Sponsor of Terrorism Exception as it
Relates to Actions Against the Islamic Republic of Iran...................................... 13
1. The Original State Sponsor of Terrorism Exception to Foreign
Sovereign Immunity, Section 1605(a)(7) and the Flatow Amendment,
Section 1605 Note, and Litigation Against Iran for its Provision of
Material Support to Terrorist Organizations............................................. 14
2. Setbacks for Plaintiffs: The D.C. Circuit’s Decision in Cicippio-Puleo. . 22
3. The Never-Ending Struggle to Enforce Judgments Against Iran. ............ 27
B. Section 1083 of the 2008 NDAA and the Creation of a Terrorism Exception,
Section 1605A....................................................................................................... 44
1. New Federal Cause of Action. .................................................................. 44

2. Punitive Damages. ....................................................................................48
3. Compensation for Special Masters. .......................................................... 49
4. More Robust Provisions for the Execution of Civil Judgments. .............. 49
C. Retroactive Application of Section 1605A to Cases Previously Filed Under
Section 1605(a)(7). ............................................................................................... 52
1. Section 1083(c)(2) – Prior Actions........................................................... 53
2. Section 1083(c)(3) – Related Actions....................................................... 55
3. The 60-Day Rule – Filing Deadline for Cases Based on Prior Actions
Under Section 1605(a)(7). ........................................................................ 56
4. Section 1083(c)(2)(B) – Defenses Waived: Res Judicata, Collateral
Estoppel, and Statute of Limitations Are Deemed Waived to the Extent
that those Defenses Relate to Claims Litigated in a Prior Action Under
Section 1605(a)(7). ................................................................................... 56
D. Efforts to Obtain Retroactive Treatment Under the New Terrorism Exception,
Section 1605A....................................................................................................... 58
E. Examination of Section 1083(c) of the 2008 NDAA Under Article III of the
United States Constitution. ................................................................................... 62
1. Principles of Law – The Independence of the Federal Judiciary Under
Article III and the Finality of Judgments.................................................. 66
2. Analysis of the Constitutional Question in Light of the Supreme
Court’s Jurisprudence. .............................................................................. 76
a. Does Section 1083(c)(3) Direct the Reopening of Final
Judgments Entered Before its Enactment and Therefore
Contravene Article III as Construed by the Supreme Court in
Plaut? ............................................................................................ 77
b. Assuming that Section 1083(c)(3) Does Not Direct the
Reopening of Final judgments, Does the Waiver of Res
Judicata and Collateral Estoppel Effect of any Prior Terrorism
FSIA Action Nonetheless Offend Article III because Congress
has Directed the Courts to Ignore Fundamental and
Longstanding Judicial Doctrines?................................................. 86
3. Additional Considerations. .......................................................................96

F. Analysis of Whether Actions Under Section 1605(a)(7) Have Qualified for
Retroactive Treatment Under Section 1605A..................................................... 102
1. The Belt-and-Suspenders Plaintiffs: Those Who Have Invoked both
Section 1083(c)(2) and (c)(3).................................................................. 104
2. The Related-Action Plaintiffs: Those Who Have Filed New Actions
Pursuant to Section 1083(c)(3). .............................................................. 115
3. The Do-Nothing Plaintiffs: Those Who Have Invoked Neither Section
1083(c)(2) Nor (c)(3) in Their Efforts to Retroactively Claim the New
Entitlements Under Section 1605A. ....................................................... 119
4. General Guidance for All Cases. ............................................................ 125
G. Service of New Claims in Pending Cases........................................................... 126
H Guidance for Plaintiffs Who May Wish to Pursue Relief Under Rule 60 of the
Federal Rules of Civil Procedure........................................................................ 133
I. Compensation for Special Masters. .................................................................... 137
J. Motions for Appointment of Receivers. ............................................................. 143
K. A Call for Meaningful Reform. .......................................................................... 156
L. An Invitation for the United States to Participate in These Actions................... 186
IV. Conclusion. ................................................................................................. 187
II.
INTRODUCTION
For more than a decade now, this Court has presided over what has been a twisting and
turning course of litigation against the Islamic Republic of Iran under the state sponsor of
terrorism exception of the Foreign Sovereign Immunities Act (FSIA). Despite the best intentions
of Congress and moral statements of support from the Executive Branch, the stark reality is that

the plaintiffs in these actions face continuous road blocks and setbacks in what has been an
increasingly futile exercise to hold Iran accountable for unspeakable acts of terrorist violence.1
The cases against Iran that will be addressed by the Court today involve more than one
thousand individual plaintiffs. Like countless others before them, the plaintiffs in these actions
have demonstrated through competent evidence—including the testimony of several prominent
experts in the field of national security—that Iran has provided material support to terrorist
organizations, like Hezbollah and Hamas, that have orchestrated unconscionable acts of violence
that have killed or injured hundreds of Americans. As a result of these civil actions, Iran faces
more than nine billion dollars in liability in the form of court judgments for money damages.
Despite plaintiffs’ best efforts to execute these court judgments, virtually all have gone
unsatisfied.
This consolidated opinion focuses on recent legislative changes in this extraordinary area
of the law, as implemented by Congress last term in § 1083 of the 2008 National Defense

1 The Islamic Republic of Iran was designated by the Secretary of State as a state sponsor
of terrorism on January 19, 1984. The State Department maintains a list of countries that have
been designated as state sponsors of terrorism on the Department’s website. See U.S. Dep’t of
State, State Sponsors of Terrorism, www.state.gov/s/ct/c14151.htm (last visited Sept. 29, 2009).
As noted at the website, countries designated as state sponsors of terrorism are those countries
that the Secretary of State has determined “have repeatedly provided support for acts of
international terrorism.” Id. The Secretary of State makes that determination and designates
state sponsors of terrorism pursuant to three statutory authorities: § 6(j) of the Export
Administration Act of 1979, 50 U.S.C. app. § 2405(j); § 620A of the Foreign Assistance Act, 22
U.S.C. § 2371; and § 40(d) of the Arms Export Control Act, 22 U.S.C. § 2780(d). Three other
countries are designated as State Sponsors of Terrorism: Cuba, Sudan, and Syria. U.S. Dep’t of
State, supra note 1. In April 2009, the State Department published its annual Country Reports
on Terrorism, reporting that “Iran remained the most active state sponsor of terrorism” in 2008.
U.S. DEP’T OF STATE, COUNTRY REPORTS ON TERRORISM 2008, at 182, available at
http://www.state.gov/documents/organization/122599.pdf. “Iran’s involvement in the planning
of financial support of terrorist attacks throughout the Middle East, Europe, and Central Asia has
had a direct impact on international efforts to promote peace, threatened economic stability in the
Gulf, and undermined the growth of democracy.” Id.

Appropriations Act for Fiscal Year 2008 (2008 NDAA). See Pub. L. No. 110-181, § 1083, 122
Stat. 3, 338–44. Section 1083 completely repeals the original state sponsor of terrorism
exception—28 U.S.C. § 1605(a)(7)—which was originally enacted in 1996, and enacts in its
place a new exception—28 U.S.C. § 1605A—that is in many ways more favorable to plaintiffs.
This new statute provides, among other reforms, a new federal cause of action against state
sponsors of terrorism and allows for awards of punitive damages in these cases. Even more
significantly, however, the reforms implemented through § 1083 last year add a number of
measures that are intended to help plaintiffs succeed in enforcing court judgments against state
sponsors of terrorism, such as Iran.
The primary purpose of this opinion is to consider whether and to what extent these
recent changes in the law should apply retroactively to a number of civil actions against Iran that
were filed, and, in many instances, litigated to a final judgment prior to the enactment of the
2008 NDAA. In this particular instance, Congress has provided express guidance in § 1083(c)
with respect to how § 1605A may be applied retroactively to reach a host of cases that were filed
under the original terrorism exception, § 1605(a)(7). In considering this retroactivity question,
the Court will address a variety of other legal and procedural issues relating to what may be
another lengthy course of litigation against Iran.
As is often the case in this area of the law that the Supreme Court has called sui generis,
see Austria v. Altmann, 541 U.S. 677, 698 (2004), this Court must sometimes confront novel
legal questions, including constitutional issues of first impression. Today’s decision is no
different. This Court must address whether § 1083(c) impermissibly directs the reopening of
final judgments in violation of Article III of the Constitution. See Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 241 (1995). The Court’s attentiveness to this potentially unconstitutional

application of § 1083(c) was heightened significantly by provisions of § 1083(c) that direct
courts to essentially disregard the firmly established judicial doctrines of res judicata and
collateral estoppel with respect to any matters litigated in a prior FSIA terrorism case.
To the extent that § 1083(c) might be construed as directing the reopening of final
judgments entered under the former version of the terrorism exception, § 1605(a)(7), it would
usurp the prerogative of the judiciary to decide cases under Article III and thereby offend the
principle of separation of powers enshrined within our Constitution. In light of this issue’s
significance with respect to ongoing litigation against Iran, this Court addresses the Article III
question in Part E of this opinion. After careful analysis as set forth below, this Court holds that
the statute withstands constitutional scrutiny.
Today, the Court also reaches an even more fundamental conclusion: Civil litigation
against Iran under the FSIA state sponsor of terrorism exception represents a failed policy. After
more than a decade spent presiding over these difficult cases, this Court now sees that these
cases do not achieve justice for victims, are not sustainable, and threaten to undermine the
President’s foreign policy initiatives during a particularly critical time in our Nation’s history.
The truth is that the prospects for recovery upon judgments entered in these cases are extremely
remote. The amount of Iranian assets currently known to exist with the United States is
approximately 45 million dollars, which is infinitesimal in comparison to the 10 billion dollars in
currently outstanding court judgments.2 Beyond the lack of assets available for execution of
judgments, however, these civil actions inevitably must confront deeply entrenched and
2 See OFFICE OF FOREIGN ASSETS CONTROL, U.S. DEP’T OF THE TREASURY, TERRORIST
ASSETS REPORT 14–15, tbls. 1, 3 (2007) [hereinafter TERRORIST ASSETS REPORT], available at
http://www.treas.gov/offices/enforcement/ofac/reports/tar2007.pdf.

fundamental understandings of foreign state sovereignty, conflicting multinational treaties and
executive agreements, and the exercise of presidential executive power in an ever-changing and
increasingly complex world of international affairs.
Unfortunately, the enactment of § 1083 of the 2008 NDAA continues and expands the
terrorism exception and its failed policy of civil litigation as the means of redress in these
horrific cases. The availability of new federal claims under § 1605A with punitive damages,
when combined with the broad retroactive reach accorded to this new statute, means that liability
in the form of billions of dollars more in court judgments will continue to mount and mount
quickly.
As a result of these latest reforms, the victims in these cases will now continue in their
long struggle in pursuit of justice through costly and time-consuming civil litigation against Iran.
They will do this at a time in our Nation’s history when the President has taken bold and
unprecedented steps in an attempt to improve relations with that foreign power while pressing
forward on crucial issues, such as the grave threat of nuclear proliferation posed by Iran.
Regrettably, the continuation in § 1083 of the same flawed policy that has failed plaintiffs in
these actions for over a decade may only stoke the flames of unrealistic and unmanageable
expectations in these terrorism victims who so rightly deserve justice, which may in turn serve
only to expose the Administration to an unprecedented burden in its management of United
States foreign policy towards Iran.
In view of these considerations, the Court will respectfully urge the President and
Congress to seek meaningful reforms in this area of law in the form of a viable alternative to
private litigation as the means of redress for the countless deaths and injuries caused by acts of
terrorism. In Part K of the opinion and in the Conclusion, this Court will speak candidly about

the challenges, complexities, and frustrations borne out by these civil actions over the past
decade in an effort to urge our political leaders to act. If the decade-long history of these FSIA
terrorism actions has revealed anything, it is that the Judiciary cannot resolve the intractable
political dilemmas that frustrate these lawsuits; only Congress and the President can. Today, at
the start of a new presidential administration—one that has sought engagement with Iran on a
host of critical issues—it may be time for our political leaders here in Washington to seek a fresh
approach.3
To assist this Court in these matters going forward, the Court will invite the United States
to participate in these actions by filing a brief in response to the many issues addressed in this
opinion. The Court encourages the United States to express its views regarding this litigation,
but, more importantly, the Court hopes the Government might take this opportunity to give due
consideration to whether there might be a more viable system of redress for these tragic and
difficult cases. With the daunting national security challenges that confront the President with
respect to Iran, our political leaders should candidly acknowledge the challenges and pitfalls of
these terrorism lawsuits. The Court fears that if reforms are not achieved in the near future, these
civil suits against Iran may undermine the President’s ability to act at a time when it matters
most.
3 Reaching out to the people of Iran and their leaders, President Obama recently stated: “I
would like to speak clearly to Iran’s leaders: We have serious differences that have grown over
time. My administration is now committed to diplomacy that addresses the full range of issues
before us and to pursuing constructive ties among the United States, Iran, and the international
community.” Videotaped Remarks on the Observance of Nowruz, DAILY COMP. PRES. DOC.,
Mar. 20, 2009.

Today’s omnibus opinion consists of twelve parts and is intended to serve a case
management function in light of the significant changes in the law relating to these civil suits
against Iran. Thus, today’s ruling is consistent with this Court’s inherent authority to manage the
docket. See, e.g., In re Fannie Mae Sec. Litig., 552 F.3d. 814, 822 (D.C. Cir. 2009) (“District
judges must have authority to manage their dockets, especially during massive litigation . . . .”).
A separate order consistent with this opinion will issue this date.
III.
DISCUSSION
The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. §§ 1330, 1602–1611,
is the sole basis of jurisdiction over foreign states in our courts. E.g., Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989); Prevatt v. Islamic Republic of Iran,
421 F. Supp. 2d 152, 157–58 (D. D.C. 2006) (Lamberth, J.). Enacted in 1976, the FSIA codifies
a restrictive theory of foreign state sovereign immunity by which states are generally immune
from the jurisdiction of courts of the United States, subject to a few carefully delineated
exceptions. See, e.g., Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488–89 (1983);
Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002). In the
original FSIA enactment, exceptions to foreign sovereign immunity included cases in which a
foreign state had either expressly or implicitly waived its immunity and cases relating to the
commercial activities of a foreign sovereign within the United States. See Act of Oct. 21, 1976,
Pub. L. No. 94-583, 90 Stat. 2891; see also §§ 1605(a), 1605A (codification of current FSIA
exceptions); Verlinden, 461 U.S. at 488 (discussing key exceptions under the FSIA).
The state sponsor of terrorism exception of the FSIA was first enacted in 1996 as part of
Mandatory Victims Restitution Act of 1996, which was itself part of the larger Antiterrorism and

Effective Death Penalty Act of 1996. Pub. L. No. 104-132, § 221(a)(1)(C), 110 Stat. 1214, 1241
(formerly codified at § 1605(a)(7)). As noted, however, the original exception at § 1605(a)(7)
was repealed last year by the 2008 NDAA, § 1083(b)(1)(A)(iii), and replaced with a new
exception at § 1605A. It is unclear why Congress chose to repeal rather than simply amend the
prior statute. See H.R. REP. NO. 110-477, at 1001 (2007) (Conf. Rep.) (discussing § 1605A but
omitting discussion of why Congress repealed, instead of amended, § 1605(a)(7)). Perhaps
members of Congress wanted to reinforce the significance of their overhaul of the terrorism
exception. Whatever the case may be, it is important at the outset for this Court to offer some
notes of clarification and historical background information in an effort to avoid any confusion in
the ensuing discussion.
The Court’s analysis today must simultaneously consider two separate and distinct
versions of the terrorism exception of the FSIA—the now-repealed version of the terrorism
exception, § 1605(a)(7), and the new version, § 1605A. While the prior version of the exception,
§ 1605(a)(7), and the new version, § 1605A, differ in many fundamental respects, it is important
to keep in mind that the basic grant of subject matter jurisdiction for actions against state
sponsors of terrorism remains unchanged. Thus, it makes little difference whether one refers to
§ 1605(a)(7) or § 1605A when addressing the degree to which foreign sovereign immunity has
been removed, subjecting designated state sponsors of terrorism to lawsuits in our courts.
Indeed, the language eliminating sovereign immunity in the new exception, § 1605A, is virtually
identical to the operative language in § 1605(a)(7). Compare § 1605(a)(7) with § 1605A(a)(1).
Accordingly, in those instances in which the Court is merely referring to the grant of subject
matter jurisdiction afforded by the virtue of the FSIA’s terrorism exception, it will do so broadly,

without any additional effort to underscore the two different statutes, as the two provisions are in
fact indistinguishable in terms of the basic jurisdiction conferring language.
While the grant of subject matter jurisdiction for suits against state sponsors of terrorism
is virtually unchanged, the latest version of the terrorism exception, § 1605A, adds substantive
rights and remedies that were not available previously. As noted above, § 1605A is a much more
expansive provision, one which provides a federal cause of action, as well as many other
statutory entitlements. These new rights and remedies are the central focus of today’s decision.
The issue is whether the plaintiffs in actions that were filed, at least initially, under the nowrepealed
§ 1605(a)(7), can now avail themselves of the additional entitlements associated with
the new exception, § 1605A. Thus, to extent that some of these plaintiffs are unable to claim the
benefits of the new terrorism law retroactively, then the prior exception, § 1605(a)(7)—even
though now repealed—remains viable and indeed is the controlling source of law in their cases.
This is consistent with both the guidance provided by Congress in § 1083(c) of the 2008 NDAA
and the general presumption against the retroactive application of laws. See Landgraf v. USI
Film Prods., 511 U.S. 244, 286 (1994) (“The presumption against statutory retroactivity is
founded upon sound considerations of general policy and practice, and accords with long held
and widely shared expectations about the usual operation of legislation.”). Thus, when dealing
with the nuts and bolts of the retroactivity analysis, especially in Part D below where the Court
looks individually at each of the 20 cases in this opinion, it is important to keep the two versions
of the exception separate and distinct. As underscored recently by the Court of Appeals for this
Circuit, terrorism cases that were filed prior the enactment of the 2008 NDAA, and which do not
qualify for retroactive treatment under the new exception, are governed by the prior statute,
§ 1605(a)(7). See Simon v. Republic of Iraq, 529 F.3d 1187, 1192 (D.C. Cir. 2008), rev’d on

other grounds sub. nom Republic of Iraq v. Beaty, 129 S. Ct. 2183 (2009); accord Oveissi v.
Islamic Republic of Iran, 573 F.3d 835 (D.C. Cir. 2009); La Reunion Aerienne v. Socialist
People’s Libyan Arab Jamahiriya, 533 F.3d 837, 845 (D.C. Cir. 2008); Owens v. Republic of
Sudan, 531 F.3d 884, 887 (D.C. Cir. 2008).

A.
HISTORICAL OVERVIEW OF THE FSIA STATE SPONSOR OF TERRORISM
EXCEPTION AS IT RELATES TO ACTIONS AGAINST
THE ISLAMIC REPUBLIC OF IRAN
The new terrorism exception—§ 1605A—clears away a number of legal obstacles,
including adverse court rulings, that have stifled plaintiffs’ efforts to obtain relief in civil actions
against designated state sponsors of terrorism. In fact, these reforms are in part a legislative fix
to certain adverse precedent from the D.C. Circuit because Ҥ 1605A(c) abrogates Cicippio-
Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004), by creating a federal right of
action against foreign states, for which punitive damages may be awarded.” Simon, 529 F.3d at
1190. Thus, to fully grasp the significance these latest reforms, it is important to have some
understanding regarding the manner in which the state sponsor of terrorism exception was
shaped over time through the jurisprudence of this Circuit. More fundamentally, however, this
historical backdrop is essential to the Court’s analysis of the Article III separation-of-powers
issue below in Part E, as well as for the Court’s conclusion in Part K that even greater reforms in
the law are necessary.
Accordingly, the Court will now briefly provide a historical overview of the state sponsor
of terrorism exception, as it was originally constituted under § 1605(a)(7) (repealed), and the socalled
Flatow Amendment to that exception, . This part of the discussion will examine some of
the early litigation against Iran before this Court in cases arising out of Iran’s provision of
material support and resources to terrorist organizations, such as Hamas and Hezbollah. The
important historical background that follows breaks down roughly into three parts. The Court
will begin with a discussion of Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998)
[hereinafter Flatow I] (Lamberth, J.), which was the first case in the country to be decided

against Iran under the state sponsor of terrorism exception. After discussing this Court’s ruling
in Flatow, this Court will then review the decision of the D.C. Circuit Court of Appeals in
Cicippio-Puleo, 353 F.3d 1024, in which the Court found that neither § 1605(a)(7) nor the
Flatow Amendment furnish a cause of action against a foreign state. This Court examines the
negative consequences and practical implications of that ruling for plaintiffs in these terrorism
cases. After examining the fallout from Cicippio-Puleo, this Court proceeds to address what has
been the greatest problem for these plaintiffs, and that is the fact that there are simply not
sufficient Iranian assets that are amenable to attachment or execution in satisfaction of judgments
entered against Iran under the FSIA terrorism exception.4
1. The Original State Sponsor of Terrorism Exception to Foreign Sovereign Immunity,
Section 1605(a)(7) and the Flatow Amendment, Section 1605 Note, and Litigation
Against Iran for its Provision of Material Support to Terrorist Organizations
The state sponsor of terrorism exception to foreign sovereign immunity applies only to
foreign sovereigns officially designated as state sponsors of terrorism by the State Department.
See § 1605A(a)(2)(A)(i)(I); § 1605(a)(7)(a) (repealed). This exception to foreign sovereign
immunity is commonly known as the “terrorism exception.” See, e.g., Kilburn v. Socialist
4 For an excellent summary of the litigation and evolution of the law pertaining to the
state sponsor of terrorism exception of the FSIA, see JENNIFER K. ELSEA, CONGRESSIONAL
RESEARCH SERV., SUITS AGAINST TERRORIST STATES BY VICTIMS OF TERRORISM (2008)
[hereinafter SUITS AGAINST TERRORIST STATES], available at
http://www.fas.org/sgp/crs/terror/RL31258.pdf. This Congressional Research Service report on
terrorism lawsuits is the logical starting point for anyone who is hoping to gain a solid grasp of
the development of this area of the law and its many complexities. In addition to chronicling
important legislative developments, the report captures and summarizes the civil litigation that
has occurred in this Court against Iran under the state sponsor of terrorism exception to the
FSIA. This Court is grateful to the Congressional Research Service, and to Ms. Elsea in
particular, for their thorough work on this unique and important topic. This Court has examined
and relied on many of the original source materials identified in the report for additional insight
on these matters beyond the Court’s own experience in presiding over dozens of civil actions
against Iran.

People’s Libyan Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir. 2004). Under the exception,
foreign sovereign immunity is eliminated in two different categories of terrorism cases: (1) those
in which the designated foreign state is alleged to have committed certain acts of terrorism, i.e.,
torture, extrajudicial killing, aircraft sabotage, or hostage taking; and (2) those in which the
designated state is alleged to have provided “material support or resources” for such terrorist
acts. See § 1605A(a)(1); § 1605(a)(7) (repealed). Thus, a designated state sponsor of terrorism
might be held to account for its specific acts of terrorism, as well as, more broadly speaking, its
“provision of material support or resources” in furtherance of acts of terrorism. See
§ 1605A(a)(1); § 1605(a)(7) (repealed).
The statute is intended to protect American victims of state-sponsored terrorism, and
therefore only United States citizens and nationals may rely on its grant of subject matter
jurisdiction. See § 1605A(a)(1); § 1605(a)(7) (repealed); see also Acosta v. Islamic Republic of
Iran, 574 F. Supp. 2d. 15, 25–26 (D.D.C. 2008) (Lamberth, C.J.) (denying claims of victim,
Rabbi Meir Kahane, who had voluntarily renounced his U.S. citizenship years prior to his
assassination by Islamic terrorists). Thus, the victim or claimant in an action against a state
sponsor of terrorism must have been a United States citizen or national at the time of the incident
that gave rise to his claim(s). See Acosta, 574 F. Supp. 2d at 26.
Most of the actions in this Court against Iran have proceeded under that portion of the
terrorism exception relating to “the provision of material support or resources” for terrorist acts.
See, e.g., Flatow I, 999 F. Supp. 1; Eisenfeld v. Islamic Republic of Iran, 172 F. Supp. 2d 1
(D.D.C. 2000) (Lamberth, J.); Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C.
2006) (Lamberth, J.). The terrorism exception adopts the definition of “material support or
resources” set forth in the criminal code at 18 U.S.C § 2339A(b)(1):

[T]he term “material support or resources” means any property, tangible
or intangible, or service, including currency or monetary instruments or financial
securities, financial services, lodging, training, expert advice or assistance,
safehouses, false documentation or identification, communications equipment,
facilities, weapons, lethal substances, explosives, personnel (1 or more individuals
who may be or include oneself), and transportation, except medicine or religious
materials[.]
See § 1605A(h)(3) (incorporating § 2339A(b)(1) by reference); see also § 1605(a)(7) (repealed).
This Court has determined that “the routine provision of financial assistance to a terrorist
group in support of its terrorist activities constitutes ‘providing material support and resources’
for a terrorist act within the meaning of the [terrorism exception of the FSIA].” Flatow I, 999 F.
Supp. 1 at 19. Additionally, this Court has found that “a plaintiff need not establish that the
material support or resources provided by a foreign state for a terrorist act contributed directly to
the act from which his claim arises in order to satisfy 28 U.S.C. § 1605(a)(7)’s statutory
requirements for subject matter jurisdiction.” Id. In other words, there is no “but-for” causation
requirement with respect to cases that rely on the material support component of the terrorism
exception to foreign sovereign immunity; “[s]ponsorship of a terrorist group which causes
personal injury or death of United States national alone is sufficient to invoke jurisdiction.” Id.;
see also Kilburn, 376 F.3d at 1129 (holding that Liyba’s actions need not be the “but for”
causation of an act of terrorism for the purpose of establishing subject matter jurisdiction under
the terrorism exception). Once the requirements for jurisdiction over a foreign state are satisfied
under the FSIA, then that foreign state can be held liable in a civil action “in the same manner
and to the same extent as a private individual under like circumstances.” § 1606.
When the FSIA state sponsor of terrorism exception was first enacted in April of 1996, it
was far from clear whether that statute, § 1605(a)(7), in and of itself, served as a basis for an
independent federal cause of action against foreign state sponsors of terrorism. While the waiver

of foreign sovereign immunity was clear, and hence the provision authorized courts to serve as a
forum to adjudicate certain terrorism cases, questions remained regarding whether any civil
claims or money damages were available by virtue of that enactment. To clarify matters,
Congress created what is commonly referred to as the Flatow Amendment, which was enacted a
mere five months after the state sponsor of terrorism exception as part of the Omnibus
Consolidated Appropriations Act, 1997. See Pub. L. 104-208, § 589, 110 (1996), 110 Stat. 3009-
1, 3009-172 (codified at 28 U.S.C. § 1605 note). The Flatow Amendment provides in pertinent
part that:
An official, employee, or agent of a foreign state designated as a state
sponsor of terrorism . . . while acting within the scope of his office, employment,
or agency shall be liable to a United States national or the national’s legal
representative for personal injury or death caused by acts of that official,
employee, or agent for which courts of the United States may maintain
jurisdiction under section 1605(a)(7) of title 28, United States Code [repealed] for
money damages which may include economic damages, solatium, pain, and
suffering, and punitive damages if the acts were among those described in section
1605(a)(7).
§ 1605 note.
The amendment is named for Alisa Michelle Flatow, a 20-year-old Brandeis University
student from New Jersey who was mortally wounded in a suicide bombing attack on the Gaza
strip in April of 1995. Alisa Flatow’s father, Stephen Flatow, was one of the prime movers
behind the state sponsor of terrorism exception, and he successfully lobbied to have the
amendment incorporated as part of § 1605. See, e.g., Neely Tucker, Pain and Suffering;
Relatives of Terrorist Victims Race Each Other to Court, but Justice and Money are Both Hard
to Find, WASH. POST, Apr. 6, 2003, at F1 [hereinafter Tucker, Pain and Suffering] (recalling
Stephen Flatow’s lobbying efforts on behalf of the anti-terrorism legislation); see also Ruthanne
M. Deutsch, Suing State-Sponsors of Terrorism Under the Foreign Sovereign Immunities Act:

Giving Life to the Jurisdictional Grant After Cicippio-Puleo, 38 INT’L LAW. 891 (2004)
(discussing legislative history of the Flatow Amendment and collecting sources); SUITS AGAINST
TERRORIST STATES, supra note 4, at 5–7 (discussing legislative history of § 1605(a)(7) and
Flatow Amendment).
Stephen Flatow filed suit in this Court shortly after the enactment of the Flatow
Amendment. As administrator of Alisa Flatow’s estate, plaintiff asserted a wrongful death claim
and a claim for Alisa’s conscious pain and suffering prior to her death. See Flatow I, 999 F.
Supp. at 27–29. Plaintiff also asserted solatium claims for the mental anguish and grief suffered
by the decedent’s parents and siblings as a result of her murder by terrorists. See id. at 29–32.
Plaintiff also sought punitive damages. See id. at 32–35. Iran did not enter an appearance in the
action and has never appeared in any FSIA terrorism action to date. See id. at 6.5
The Flatow case was the first in the country to be decided against Iran under the terrorism
exception to the FSIA. See 999 F. Supp. at 6 n.2. In that decision, this Court examined the
statutory language of the terrorism exception, § 1605(a)(7), and the Flatow Amendment, § 1605
5 Iran has never appeared in these actions even though it is “an experienced litigant in the
United States Federal Court System generally and in this Circuit. See, e.g., Cicippio v. Islamic
Republic of Iran, 30 F.3d 164 (D.C. Cir. 1994), cert. denied 513 U.S. 1078 (1995); Foremost-
McKesson v. Islamic Republic of Iran, 905 F.2d 438 (D.C. Cir. 1990); Presinger v. Islamic
Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984); Berkovitz v. Islamic Republic of Iran, 735 F.2d
329 (9th Cir. 1984); McKeel v. Islamic Republic of Iran, 722 F.2d 582 (9th Cir. 1983).” Flatow
I, 999 F. Supp. 1 at 6 n.1. Nevertheless, this Court cannot enter a default judgment against a
foreign sovereign unless the plaintiff “establishes his claim or right to relief by evidence
satisfactory to the Court.” 28 U.S.C. § 1608(e). Thus, this Court must carefully review the
plaintiff’s evidence with respect to both liability and damages.
While Iran has not defended itself in any of the lawsuits under the terrorism exception,
Iran has on occasion come to court to prevent plaintiffs from collecting on default judgments
entered under that provision. For example, Iran recently prevailed in an action to prevent the
attachment of one of its assets here in the United States. See, e.g., Ministry of Defense and
Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, 129 S. Ct. 1732 (2009).

note, in pari materia and found that those provisions collectively established both subject matter
jurisdiction and federal causes of actions for civil lawsuits against state sponsors of terrorism.
See id. at 12–13. This Court also ruled that the Flatow Amendment was intended to ensure large
punitive damage awards against state sponsors of terrorism. See id. In this Court’s view, the
express provision of punitive damages in the Flatow Amendment, in conjunction with the
provisions’s legislative history, including statements by the Amendment’s co-sponsors,
Representative Jim Saxton and Senator Frank Lautenberg of New Jersey, demonstrated that
Congress believed punitive damage awards were absolutely necessary to ensure that civil actions
against state sponsors of terrorism would effectively deter those nations from perpetuating
international terrorism. See id. Thus, the Flatow Amendment served as an exception to the
general rule, as expressed in § 1606 of the FSIA, that foreign sovereigns are not to be held liable
for punitive damages.
During a two-day hearing in March of 1998, plaintiff proceeded in the manner of a nonjury
trial. Id. at 6. The evidence presented to the Court at that time demonstrated by clear and
convincing evidence that Iran was the sole source of funding for the Shaqaqi faction of Palestine
Islamic Jihad, a small terrorist cell that claimed responsibility for and in fact perpetuated the
suicide bombing that gravely wounded Alisa Flatow on April 9, 1995. Id. at 8–9. The suicide
bomber rammed a van full of explosives into the number 36 Egged bus that Alisa and others
were traveling in on their way to a Mediterranean resort in the Gush Katif community in Gaza.
Id. at 7. The resulting explosion destroyed the bus and sent shrapnel flying in all directions. Id.
A piece of that shrapnel pierced Alisa’s Flatow’s skull and lodged in her brain. Id. Once
Stephen Flatow learned that his daughter had been injured in the attack, he immediately flew to
Israel, and he rushed to the Soroka Medial Center, where Alisa was being treated. Upon his

arrival there, however, the attending physician informed Mr. Flatow that his daughter Alisa
“showed no signs of brain activity, that all physical functions relied on life support, and that
there was no hope for her recovery.” Id. at 8. In emotionally powerful testimony before this
Court, Stephen Flatow described the heart-wrenching decision he made to have his daughter’s
life support terminated and her organs harvested for transplant. See id.
This Court ultimately awarded a total of 22.5 million dollars in compensatory damages.
More significantly, however, the Court also awarded 225 million dollars in punitive damages,
approximately three times Iran’s annual expenditures on terrorist activities at that time. See id. at
34. In providing for such a large award of punitive damages against Iran, this Court stressed the
importance of such awards as a means to deter states like Iran from supporting terrorist
organizations. The Court stated as follows:
By creating these rights of action, Congress intended that the Courts impose a
substantial financial cost on states which sponsor terrorist groups whose
activities kill American citizens. This Cost functions both as a direct deterrent,
and also as a disabling mechanism: if several large punitive damage awards
issue against a foreign state sponsor of terrorism, the state’s financial capacity
to provide funding will be curtailed.
Id. at 33 (emphasis added). The Court also recognized that any punitive damage award would
have to be substantial enough to have an appreciable impact in light of Iran’s significant annual
revenues from oil exports. See id. at 33–34.
At the time the Flatow decision was announced, there was a certain degree of energy and
optimism surrounding the action. Senator Frank Lautenberg held a press conference outside this
courthouse with Alisa Flatow’s parents and their attorneys. They underscored the importance of
the Court’s decision as a measure of justice for victims of terrorism, and they stressed the
importance of holding state sponsors of terrorism accountable for their support of terrorist

groups. See Bill Miller & Barton Gellman, Judge Tells Iran to Pay Terrorism Damages; $247
Million Award for Family of U.S. Victim in Gaza, WASH. POST, Mar. 12, 1998, at A1. Steven
Perles, one of the attorneys for the Flatows, spoke of Iran’s wealth and expressed his belief that
the Flatows would “collect the entirety of the judgment.” See id. At the time, the popular
sentiment was that terrorism victims were going to “sue the terrorists out of business.” See
Tucker, Pain and Suffering, supra. In the years immediately following the Flatow decision,
many more plaintiffs relied on the original terrorism exception, § 1605(a)(7), in combination
with the Flatow Amendment, to successfully litigate cases against Iran. See, e.g., Stern v.
Islamic republic of Iran, 271 F. Supp. 2d 286 (D.D.C. 2003) (Lamberth, J.); Hutira v. Islamic
Republic of Iran, 211 F. Supp. 2d 115 (D.D.C. 2002) (Lamberth, J.); Eisenfeld, 172 F. Supp. 2d
1.6 Large judgments against the state sponsor of terrorism amassed quickly. Unfortunately, in
most cases, the victories obtained by plaintiffs in this courthouse merely signaled the beginning
of what would become a long, bitter, and often futile quest for justice.
6 Although this Judge ruled in Flatow that the Flatow Amendment,1605 note, did furnish
a cause of action against a state sponsor of terrorism, this Judge elected to revisit the issue even
more throughly in Cronin v. Islamic Republic of Iran, a case concerning an American Professor
who was taken hostage and tortured by Hizbollah in Beirut, Lebanon in 1984. See 238 F. Supp.
2d 222 (D. D.C. 2002) (Lamberth, J.). The Court did so in part because the Court of Appeals
had flagged the issue in Price by observing that “‘the amendment does not list ‘foreign states’
among the parties against whom an action may be brought.’” Cornin, 238 F. Supp. 2d at 231
(quoting Price, 294 F.3d at 87). As this Court revisited what was then a crucial question, this
Court observed that a majority of the judges of this Court by that time had ruled that the Flatow
Amendment did provide for a cause of action against a foreign state in cases in which that state is
not entitled to immunity by virtue of the terrorism exception, § 1605(a)(7). See id. at 233
(collecting cases). Nonetheless, § 1605 note is not a model of clarity, and as Judge Sullivan
pointed out in Roeder v. Islamic Republic of Iran, there are a number of valid reasons why
§ 1605 note should not be construed as furnishing substantive claims against foreign states. See
195 F. Supp. 2d 140, 171–175 (holding that Flatow Amendment did not furnish a cause of
action).

2. Setbacks for Plaintiffs: The D.C. Circuit’s Decision in Cicippio-Puleo
Nearly six years following the Flatow decision, and contrary to what this Court and
others had determined, the D.C. Circuit Court of Appeals held that “[p]lainly neither section
§ 1605(a)(7) nor the Flatow Amendment, separately or together, establishes a cause of action
against foreign state sponsors of terrorism.” Cicippio-Puleo, 353 F.3d at 1027. According to the
Court of Appeals, the original terrorism exception to the FSIA, § 1605(a)(7), was “merely a
jurisdiction conferring provision,” and therefore it did not create an independent federal cause of
action against a foreign state or its agents. Id. at 1032. In other words, the prior version of the
terrorism exception, § 1605(a)(7), merely waived foreign sovereign immunity for designated
terrorist states with respect to actions taken by those states in furtherance of international
terrorism, but it did not furnish a legal claim for money damages that a terrorism victim might
then assert in a lawsuit against Iran or any other designated state sponsor of terrorism. Instead,
plaintiffs in terrorism cases were required to find a cause of action based on some other source of
law. Id. at 1037.
With respect to the Flatow Amendment, § 1605 note, the Court held that the provision
“provides a private right of action only against individual officials, employees, and agents of a
foreign state, but not against the foreign state itself.” Id. at 1027. Thus, the cause of action
furnished by the Flatow Amendment is severely restricted because it applies only to claims
against foreign state officials, employees, and agents, “in their individual capacities, as opposed
to their official capacities.” Id. at 1034 (emphasis in original). In reaching its holding, the Court
of Appeals emphasized that a claim against a foreign state official for actions taken within his
official capacity on behalf of a foreign government “‘is in substance a claim against the
government itself’” Id. (citations omitted). As the Court found that neither the plain language

nor the legislative history of the Flatow Amendment suggested that Congress intended to impose
liability on foreign governments, plaintiffs were precluded from relying on that provision for
either claims against Iran or claims based on acts taken by Iranian officials within the scope of
their official duties. Id. at 1034–1036. After rendering its ruling the Cicippio-Puleo, the Court
of Appeals remanded the action back to this Court in order to enable plaintiffs in that case to
amend their complaint to state a cause of action against Iran “under some other source of law,
including state law.” Id. at 1036.
As a result of the Cicippio-Puleo decision, plaintiffs in FSIA terrorism cases under
§ 1605(a)(7) began to use that provision as a “‘pass-through’” to causes of actions found in state
tort law. Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 83 (D.D.C. 2006) (Lamberth,
J.); see also Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 12 (2d Cir. 1996) (describing
how FSIA acts as pass-through to state law by virtue of § 1606) (quoting Zicherman v. Korean
Airlines Co, 516 U.S. 217, 229 (1996)). By using the pass-through approach under the earlier
version of the terrorism exception, § 1605(a)(7), most terrorism victims who pursued FSIA cases
against Iran were in fact able to litigate claims based on the tort law of the state jurisdiction
where they were domiciled at the time of the terrorist incident giving rise to the lawsuit.
In the large consolidated case of Peterson v. Islamic Republic of Iran, for example, this
Court found that Iran furnished money, weapons, training, and guidance to Hezbollah in direct
support of a terrorist plot that culminated in large-scale suicide bombing attack on the United
States Marine barracks in Beirut, Lebanon on October 23, 1983. See 264 F. Supp. 2d at 47–59
(D.D.C. 2003) [hereinafter Peterson I] (Lamberth, J.).7 More than 200 American servicemen
7 Peterson is consolidated with Boulos v. Islamic Republic of Iran, No. 01-CV-2684-RCL
(D.D.C.).

lost their lives and countless others were injured in the bombing. Prior to September 11, 2001,
the attack on the Marines in Beirut was the most deadly terrorist attack ever carried out against
American citizens. By examining the claims in that case under a number of sources of state law,
this Court awarded to the family members of the deceased servicemen and the injured survivors
of the Beirut attack exceeds 2.6 billion dollars and remains one of the largest judgments ever
awarded in a FSIA action pursuant to the state sponsor of terrorism exception. See Peterson v.
Islamic Republic of Iran, 515 F. Supp. 2d 25, 44–45 (D.D.C. 2007) [hereinafter Peterson II]
(Lamberth, J.). Like Peterson, the majority cases addressed in today’s opinion stem from the
1983 bombing of the Marine barracks facility in Beirut, Lebanon.
In another action considered today, Bennett v. Islamic Republic of Iran, plaintiffs
demonstrated how Iran’s financial support of Hamas helped to perpetrate terrorist attacks,
including a 2002 suicide bombing incident at Hebrew University in Jerusalem that claimed the
life of their 24-year-old daughter. See 507 F. Supp. 2d 117 (D.D.C. 2007) (Lamberth, J.). In
Bennett, the plaintiffs relied on California law. Similarly, in Beer v. Islamic Republic of Iran,
family members of an American killed in a suicide bombing of a bus in Jerusalem showed how
Iran’s material support to Hamas in the form of funding, safe haven, training, and weapons,
helped to spur on violent suicide attacks in Israel and elsewhere. 574 F. Supp. 2d 1 (D.D.C.
2008) (Lamberth, J.).8 The plaintiffs in Beer relied on New York common law.
8 This Court has also decided FSIA cases arising from Iran-sponsored terrorist attacks
that have occurred here in the United States. Acosta, for example, arose out of the assassination
of Rabbi Meir Kahane, an Israeli political figure and a founder of the Jewish Defense League,
who was gunned down by Islamic Jihadists as he was concluding a lecture in New York City on
November 5, 1990. See 574 F. Supp. 2d 15.

But while larger majority of plaintiffs in actions post-Cicippio-Puelo were able to use the
pass-through approach to find relief, hundreds of others equally dissevering plaintiffs had their
claims denied because they were domiciled in jurisdictions that did not afford them a substantive
claim. In the Peterson case, for example, some family members of the Marines and other
servicemen who were killed in the 1983 terrorist bombing were barred from asserting intentional
infliction of emotional distress claims (IIED) because they lacked standing under the applicable
state tort law. Consequently, this Court had to dismiss the IIED claims of family members who
were domiciled in either Pennsylvania or Louisiana at the time of the terrorist attack because
those jurisdictions would not permit IIED claims by family members who were not physically
present at the site of the incident that gave rise to the emotional distress. See Peterson II, 515 F.
Supp. 2d at 44–45. Thus, the Pennsylvania and Louisiana plaintiffs in the Peterson action were
effectively denied their day in court, and yet they watched as many other similarly situated
plaintiffs (including some of their own family members) from different state jurisdictions
advanced and ultimately prevailed with their claims for IIED. For those Pennsylvania and
Louisiana plaintiffs who were denied relief as so many others succeeded based on precisely the
same kinds of claims, based on the same horrific and unquestionably traumatic incident, the
result must have seemed both arbitrary and unfair.
In addition to the unfairness caused by a lack of uniformity in the underlying state
sources of law, the pass-through approach proved cumbersome and tedious in practical
application. In a given case based on a single terrorist incident, this Court would usually have to
resolve choice of law problems and then proceed through a lengthy analysis of tort claims under
the laws of numerous different state jurisdictions. For example, in the Heiser case, a large
consolidated action involving the Khobar towers bombing, this Court issued a 209-page opinion

in which it ultimately applied the laws of 11 different state jurisdictions. See 466 F. Supp. 2d
299. In Peterson, this Court had to apply the laws of nearly 40 different jurisdictions in order to
resolve the victims’ claims. See Peterson II, 515 F. Supp. 2d 25. To efficiently manage these
terrorism cases under the pass-through regime imposed by Cicippio-Puleo, this Court would
frequently refer the action to special masters after the Court determined under § 1605(a)(7) that
Iran provided material support for a terrorist incident that killed or injured Americans.9
Another consequence of the Cicippio-Puleo decision was that the Flatow Amendment
could not serve as independent basis for punitive damages awards against Iran. As the Court of
Appeals found that the amendment was not intended to provide for claims against foreign states,
the bar on punitive damages in § 1606 of the FSIA remained in tact, even with respect to state
sponsors of terrorism. Accordingly, large awards of punitive damages, like that which this Court
granted in Flatow to deter Iran from sponsorship of terrorist groups, were no longer available in
actions against the state of Iran under § 1605(a)(7).10
9 The application of diverse sources of substantive law to claims in accordance with the
pass-through approach under § 1605(a)(7) may sometimes requires courts to look to foreign
sources of law. See Oveissi, 573 F.3d 835. In Oveissi, the Court of Appeals ruled that this Court
must apply French law to resolve emotional distress and wrongful death claims brought by an
American grandson of General Gholam Oveissi, who was the head of the Iranian armed forces
under the Shah’s regime. General Oveissi was assassinated in France by Hezbollah operatives in
February of 1984.
10 In all of the civil actions against the Islamic Republic of Iran considered here today,
Iran’s Ministry of Information and Security (MOIS) is also named as a defendant. One of the
actions also includes the Iranian Islamic Revolutionary Guard Corps (IRGC) as a defendant. See
Rimkus v. Islamic Republic of Iran, No. 06-CV-1116-RCL (D.D.C.).
As noted, § 1606 of the FSIA provides that foreign states may not be held liable for
punitive damages, and, as a result of Cicippio-Puleo, that exemption from punitive damages
applies to state sponsors of terrorism in actions under § 1605(a)(7), notwithstanding the Flatow
Amendment. Section 1606 also provides, however, that an “agency or instrumentality” of a
foreign state, as opposed to the state itself, may be liable for punitive damages. Thus, certain

3. The Never-Ending Struggle to Enforce Judgments Against Iran
In the years since the Flatow decision, a number of practical, legal, and political obstacles
have made it all but impossible for plaintiffs in these FSIA terrorism cases to enforce their
default judgments against Iran. This Court has examined this fundamental and longstanding
problem time and again as plaintiffs before this Court have sought, with very little success, to
entities of a foreign government may be liable for punitive damages. In terrorism cases against
Iran in this Court under § 1605(a)(7), plaintiffs have never identified an appropriate Iranian
agency that would qualify as an “agency or instrumentality” of Iran for the purpose of a punitive
damages award.
In Roeder v. Islamic Republic of Iran, a case that was decided only a few months prior to
Cicippio-Puleo, the Court of Appeals emphasized that it follows a categorical approach when
determining whether a foreign governmental entity should be considered “‘a foreign state or
political subdivision’ rather than an ‘agency or instrumentality of the nation’” for purposes of the
FSIA. 333 F.3d 228, 234 (D.C. Cir. 2003) (quoting Transaero, Inc. V. La Fuerza Aerea
Boliviana, 30 F.3d 148, 149–50 (D.C. Cir. 1994)). Under the categorical approach, “if the core
functions of the entity are governmental, it is considered the foreign state itself; if commercial,
the entity is an agency or instrumentality of the foreign state.” Id. In Roeder, the Court
determined that Iran’s Ministry of Foreign Affairs is part of the foreign state itself, rather than an
“agency of instrumentality” because the Ministry of Foreign Affairs, like a nation’s armed
forces, is governmental in nature. Id. Following the Roeder decision, this Court found that
MOIS must be considered part of the state of Iran itself and is therefore exempt from liability for
punitive damages. See, e.g., Haim v. Islamic Republic of Iran, 425 F. Supp. 2d 56, 71 n.2
(D.D.C. 2006) (Lamberth, J.).
In Rimkus, a case that is addressed in today’s consolidated opinion, the plaintiffs asserted
claims against IRGC as well as MOIS. In rendering the decision in Rimkus, this Court again
followed the categorical approach from Roeder and determined that IRGC, like MOIS, is part of
the state itself and is therefore exempt from punitive damage under the FSIA. See 575 F. Supp.
2d 181, 198–200 (D.D.C. 2008) (Lamberth, C.J.); see also Blais v. Islamic Republic of Iran, 459
F. Supp. 2d 40, 60–61 (D.D.C. 2006) (Lamberth, J.) (concluding that both MOIS and IRGC must
be treated as the state of Iran itself for purposes of liability); Salazar v. Islamic Republic of Iran,
370 F. Supp. 2d 105, 115–16 (D.D.C. 2005) (Bates, J.) (same). Consequently, in the years
following Cicippio-Puleo, plaintiffs in actions under the original terrorism exception,
§ 1605(a)(7), lacked a basis for claiming punitive damages in actions arising out of Iransponsored
terrorism.
Because claims against MOIS or IRGC are not legally distinguishable from claims
against Iran itself, this opinion refers to Iran as the only defendant.
Case 1:01-cv-02094-RCL Document 439 Filed 09/30/2009 Page 27 of 191
- 28 -
locate and attach Iranian Government assets in aid of execution of their civil judgments. See,
e.g., Bennett v. Islamic Republic of Iran, 604 F. Supp. 2d 152 (D.D.C. 2009) (Lamberth, C.J.);
Peterson v. Islamic Republic of Iran, 563 F. Supp. 2d 268 (D.D.C. 2008) [hereinafter Peterson
III] (Lamberth, C.J.); Weinstein v. Islamic Republic of Iran, 274 F. Supp. 2d 53 (D.D.C. 2003)
(Lamberth, J.); Flatow v. Islamic Republic of Iran, 76 F. Supp. 2d 16 (D.D.C. 1999) [hereinafter
Flatow III] (Lamberth, J.); Flatow v. Isl

SUPREME COURT OF THE UNITED STATES
Syllabus
MINISTRY OF DEFENSE AND SUPPORT FOR THE
ARMED FORCES OF THE ISLAMIC REPUBLIC OF
IRAN v. ELAHI
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 07–615. Argued January 12, 2009—Decided April 21, 2009
In 1997, the International Court of Arbitration awarded petitioner Ira-nian Ministry of Defense (hereinafter Iran) $2.8 million to settle adispute with Cubic Defense Systems, Inc., a California company, over a 1977 contract that would have provided Iran with an air combattraining system. When Cubic refused to pay, Iran sued in the Fed-eral District Court in San Diego, which ordered Cubic to pay the award plus interest (Cubic Judgment). In 2000, respondent Elahisued Iran in the D.C. Federal District Court, claiming that Iranianagents had murdered his brother. He obtained a default judgment of about $312 million and sought to collect some of the money by attach-ing the Cubic Judgment. Iran opposed the lien under the Foreign Sovereign Immunities Act of 1976 (FSIA). The California District Court denied Iran’s immunity claim, and the Ninth Circuit affirmed,finding an exception to sovereign immunity. This Court vacated and remanded. Ministry of Defense and Support for Armed Forces of Is-lamic Republic of Iran v. Elahi, 546 U. S. 450. On remand, the Ninth Circuit found that a different immunity ex-ception applied, citing the Terrorism Risk Insurance Act of 2002 (TRIA), which permitted holders of terrorism-related judgments against Iran to attach “blocked” Iranian assets. The United States had blocked Iranian assets following the Iranian hostage crisis in1979, and the court held that the asset Elahi sought to attach had remained blocked notwithstanding the unblocking orders issued after the crisis was resolved by the Algiers Accords in 1981. The court rea-soned that those unblocking orders had omitted military goods such as the training system underlying the Cubic Judgment. The court
2
MINISTRY OF DEFENSE AND SUPPORT FOR ARMED
FORCES OF ISLAMIC REPUBLIC OF IRAN v. ELAHI
Syllabus
further rejected Iran’s argument that Elahi had waived his right ofattachment, and concluded that he could attach the Cubic Judgment. Held:
1.
The asset in question was not “blocked” at the time of the Ninth Circuit’s decision. Contrary to that court’s holding, the relevant asset is not Iran’s interest in the air combat training system, but, rather, a judgment enforcing an arbitration award based upon Cubic’s failure to account to Iran for its share of the proceeds of the system’s even-tual sale to Canada. And neither the Cubic Judgment nor the sale proceeds it represents were blocked assets at the time of the Court ofAppeals’ 2007 decision. In a 1981 order, the Treasury Departmentunblocked transactions involving property in which Iran’s interestarose after January 19, 1981. Iran’s interest in the Cubic Judgmentitself arose on December 7, 1998, when the District Court confirmed the arbitration award. And Iran’s interest in the property underlying the judgment arose, as the arbitrators ruled, when Cubic completedits sale of the air combat system in October 1982. Thus, whether Iran’s “interest in property” is considered to be its interest in the Cu-bic Judgment itself or its underlying interest in the sale proceeds, theinterest falls within the terms of the Treasury Department’s generalunblocking order. Even assuming (as the Ninth Circuit held) thatthe relevant asset was Iran’s pre-1981 interest in the training systemitself, that asset still was not “blocked” at the time of the decision be-low. Such an interest would fall directly within the scope of Execu-tive Order No. 12281, which required that property owned by Iran betransferred “as directed . . . by the Government of Iran.” No author-ity supports the contrary conclusion. Pp. 8–11.
2.
Elahi cannot attach the Cubic Judgment because he has waived his right to do so. Section 2002 of the Victims of Trafficking and Vio-lence Protection Act of 2000 (VPA) offers compensation to individualsholding terrorism-related judgments against Iran. It requires thosereceiving payment to relinquish “all rights to . . . attach property that is at issue in claims against the United States before an internationaltribunal.” §2002(a)(2)(D). In 2003, the U. S. Government paid Elahi $2.3 million under the VPA as partial compensation for his judgmentagainst Iran, and he signed a waiver form that mirrors the statutorylanguage. A review of the record in Iran-U. S. Claims Tribunal Case No. B61 demonstrates that the Cubic Judgment falls within the terms of Elahi’s waiver. Iran filed that case in 1982, claiming thatbetween 1979 and 1981 the United States had wrongly barred the transfer of the Cubic training system and other military equipmentto Iran. Iran asked the Tribunal to order the United States, amongother things, to pay Iran damages. The United States answered that the Tribunal should set off the $2.8 million represented by the Cubic
3
Cite as: 556 U. S. ____ (2009)
Syllabus
Judgment against any award. Iran argued that the Tribunal shouldnot set off the $2.8 million insofar as third parties have attached thejudgment. In the terms of Elahi’s waiver, therefore, the Cubic Judg-ment is “property,” and Case No. B61 itself is a “clai[m] against theUnited States before an international tribunal.” And there remains a significant dispute about whether the Cubic Judgment can be used bythe Tribunal as a setoff, placing the Judgment “at issue” in Case No.B61. Elahi’s arguments to the contrary are unavailing. Pp. 12–20.
3. Given Elahi’s waiver, this Court need not decide whether the Cubic Judgment was blocked by new Executive Branch actions fol-lowing the Ninth Circuit’s decision. P. 20.
495 F. 3d 1024, reversed.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, THOMAS, and ALITO, JJ., joined, and in which KENNEDY, SOUTER, and GINSBURG, JJ., joined as to Parts I and II. KENNEDY, J., filed an opinion concurring in part and dissenting in part,in which SOUTER and GINSBURG, JJ., joined.
_________________
_________________
1
Cite as: 556 U. S. ____ (2009)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 07–615
MINISTRY OF DEFENSE AND SUPPORT FOR THE
ARMED FORCES OF THE ISLAMIC REPUBLIC OF
IRAN, PETITIONER v. DARIUSH ELAHI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 21, 2009]
JUSTICE BREYER delivered the opinion of the Court.
Dariush Elahi, the respondent, sued Iran, claiming thatIran unlawfully participated in the assassination of his brother, and he obtained a default judgment of about $312million. Seeking to collect some of the money, he has tried to attach an asset belonging to Iran, namely a $2.8 millionjudgment that Iran obtained against a California companycalled Cubic Defense Systems, Inc. (Cubic Judgment).Iran has asserted a defense of sovereign immunity in order to prevent the attachment. See Foreign SovereignImmunities Act of 1976, 28 U. S. C. §1610.
Since Iran is a sovereign nation, Elahi cannot attach theCubic Judgment unless he finds an exception to the principle of sovereign immunity that would allow him to do so.See Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U. S. 450 (2006) (per curiam). As the case reaches us, the Terrorism Risk Insurance Act of 2002 (TRIA), §201(a), 116 Stat. 2337, notefollowing 28 U. S. C. §1610, provides the sole possible exception. That Act authorizes holders of terrorism2
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related judgments against Iran, such as Elahi, to attach Iranian assets that the United States has “blocked.” Ibid. (emphasis added). And we initially decide whether Iran’s Cubic Judgment is a “blocked asset” within the terms of that Act.
Even if the Cubic Judgment is a blocked asset, however,Elahi still cannot attach it if he waived his right to do so. And we next decide whether Elahi waived that right when, in return for partial compensation from the Government, he agreed not to attach “property that is at issue in claims against the United States before an international tribunal.” Victims of Trafficking and Violence Protection Act of 2000 (VPA), §2002(d)(5)(B), as added by TRIA§201(c)(4), 116 Stat. 2339, note following 28 U. S. C. §1610 (emphasis added).
We ultimately hold that the Cubic Judgment was not a “blocked asset” at the time the Court of Appeals handed down its decision in this case. We recognize that sincethat time new Executive Branch action may have “blocked” that asset; but, in light of the posture of the case, we do not decide whether it has done so. Rather, we determine that Elahi cannot attach the Cubic Judgment regardless, for the Judgment is “at issue” in a claim against the United States before the Iran-U. S. ClaimsTribunal. The Judgment consequently falls within the terms of Elahi’s waiver.
I We initially set forth key background elements, including in this section the events necessary to understand the “blocked asset” question, while leaving for Part III, infra, additional background matters related to Elahi’s waiver.
A The Cubic Judgment arose out of a 1977 contract between Cubic Defense Systems, a California company and
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Iran’s Ministry of Defense. (We shall refer to the Ministry, for present purposes an inseparable part of the Iranian State, as “Iran.” See Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 495 F. 3d 1024, 1035–1036 (CA9 2007)). Cubic there promised to supply Iran with certainmilitary goods, namely an air combat training system, for which Iran promised to pay approximately $18 milliondollars. In 1979, after Iran had paid some of the money but before Cubic had sent the training system, the IranianRevolution broke out, militants in Iran seized American hostages, and President Carter “blocked all property andinterests in property of the Government of Iran . . . subject to the jurisdiction of the United States.” Exec. Order No. 12170, 3 CFR 457 (1979 Comp.) (emphasis added), promulgated pursuant to the authority of International Emergency Economic Powers Act (IEEPA), 50 U. S. C. §§1701–1702 (2000 ed. and Supp. V); 31 CFR §535.201 (1980).
About a year later, on January 19, 1981, Iran and theUnited States settled the crisis, in part with an agreementcalled the “Algiers Accords.” 20 I. L. M. 224. Under the Accords, the United States agreed to “restore the financialposition of Iran, in so far as possible, to that which existed prior to November 14, 1979,” ibid., and (with some exceptions) to “arrange, subject to the provisions of U. S. law applicable prior to November 14, 1979, for the transfer to Iran of all Iranian properties,” id., at 227. The President then lifted the legal prohibitions against transactionsinvolving Iranian property. See Exec. Orders Nos. 12277– 12282, 3 CFR 105–113 (1981 Comp.); 31 CFR §§535.211–
535.215 (1981). In doing so, he ordered the transfer to Iran of Iranian financial assets and most other Iranian property “as directed . . . by the Government of Iran,” Exec. Order No. 12281, 3 CFR 112 (1981 Comp.). Shortlythereafter, the Treasury Department issued a general license authorizing “[t]ransactions involving property in
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which Iran . . . has an interest” where “[t]he property comes within the jurisdiction of the United States . . . afterJanuary 19, 1981, or . . . [t]he interest in the property . . . arises after January 19, 1981.” 31 CFR §535.579(a).
The Algiers Accords also set up an international arbitration tribunal, the Iran-U. S. Claims Tribunal (or Tribunal), to resolve disputes between the two nations concerning each other’s performance under the Algiers Accords. The Tribunal would also resolve disputes concerning contracts and agreements between the two nations thatwere outstanding on January 19, 1981. 20 I. L. M., at 230–231. The Tribunal’s jurisdiction included claims bynationals of one state against the other state, but it did not include claims by one state against nationals of the other state. Id., at 231–232.
B In January 1982, Iran filed two Cubic-based claims inthe Tribunal. In Case No. B61, Iran claimed that between 1979 and 1981 the United States had wrongly barred the transfer of certain military equipment, including theCubic air combat training system, to Iran. Iran asked the Tribunal to order the United States either to issue an export license for the equipment or to pay Iran damages.App. to Brief for United States as Amicus Curiae 22a, 24a, 31a. In Case No. B66, Iran claimed that Cubic had breached its contract to deliver the training system partly because the United States had taken actions contrary to the Algiers Accords. Again Iran asked the Tribunal to order either the issuance of an export license for the equipment or the payment of damages. Id., at 1a, 2a, 9a–10a. In April 1987 the Tribunal dismissed this second case (No.B66) on the grounds that the Iran-Cubic contract imposed no obligations on the United States and that the Tribunal lacked jurisdiction to consider a suit by a state (Iran)
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against a private party (Cubic). Ministry of Nat. Defense of Islamic Republic of Iran v. United States, 14 Iran-
U. S. Cl. Trib. Rep. 276, 277–278.
Iran, believing that Cubic had breached its contract,then went to arbitration before the arbitration tribunal specified in the Cubic contract, namely the International Court of Arbitration of the International Chamber of Commerce. Iran asked that arbitration tribunal to award it restitution and damages.
In May 1997 the arbitrators issued their decision. The arbitrators found that prior to the Iranian Revolution, prior to the hostage crisis, and prior to the blocking of anyIranian assets, (1) Iran and Cubic had themselves agreed that they would temporarily discontinue (but not terminate) the contract; and (2) Cubic had agreed to try to sell the training system to another buyer and to settle accounts with Iran later. The arbitrators further found that after the crisis (in September 1981) (3) Cubic successfullysold a modified version of the system to Canada. Ministry of Defense and Support for Armed Forces of Islamic Repub-lic of Iran v. Cubic Int’l Sales Corp., No. 7365/FMC (Int’lCt. of Arbitration of Int’l Chamber of Commerce), pp. 32–33, 36–40, 50–51, reprinted in 13 Mealey’s Int’l Arbitration Report pp. G–4, G–15 to G–18, G–21 (Oct. 1998)(Arbitration Award). The arbitrators concluded that Cubic had not lived up to this modified agreement. And, after taking account of the advance payments that Iran had made to Cubic, the funds that Cubic had spent, the amount that Canada had paid Cubic, and various other items, they awarded Iran $2.8 million plus interest. Id., ¶C.18.3(a), at G–31.
Cubic refused to pay Iran this money. Iran then sued in the Federal District Court for the Southern District of California to enforce the arbitration award. The District Court confirmed the award and entered a final judgmentordering Cubic to pay $2.8 million plus interest to Iran.
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That judgment is the Cubic Judgment. Ministry of De-fense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 29 F. Supp. 2d 1168,1174 (1998) (final judgment entered Aug. 10, 1999).
C In February 2000 Elahi brought a tort action against Iran in the Federal District Court for the District of Columbia. Elahi claimed that Iranian agents had murdered his brother. See 28 U. S. C. §1605(a)(7) (2000 ed.) (lifting sovereign immunity of state sponsors of certain kinds of terrorism) (subsequently replaced by National DefenseAuthorization Act for Fiscal Year 2008, §1083(a)(1), 122 Stat. 338, 28 U. S. C. A. §1605A); Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997, §589, 110 Stat. 3009–172, note following 28
U. S. C. §1605 (providing tort cause of action). Iran did not answer the complaint. The District Court found Iran in default, and it awarded Elahi nearly $12 million incompensatory damages and $300 million in punitive damages. Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97 (DC 2000).
In 2001 Elahi filed a notice of lien against Iran’s Cubic Judgment. He thereby sought to satisfy from the CubicJudgment a portion of what Iran owed him under his own default judgment against Iran. Iran opposed the lien. It argued that the Cubic Judgment, as property of the sovereign state of Iran, was immune from attachment or execution. The District Court denied immunity. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 236 F. Supp. 2d 1140, 1152 (SD Cal. 2002).
The Court of Appeals affirmed the denial. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 385 F. 3d 1206 (CA9 2004). The Court of Appeals thought that the Minis7
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try of Defense of Iran had lost its immunity from attachment because of a special statutory exception that permitsa creditor to attach the property of an “agency or instrumentality of a foreign state engaged in commercial activityin the United States”—where the creditor seeks the property to satisfy a terrorism-related judgment. 28 U. S. C. §1610(b). See 385 F. 3d, at 1219–1222. But, on review here, we pointed out (in a per curiam opinion) that thesovereign immunity exception upon which the NinthCircuit had relied—the exception for the property of anentity that has “engaged in commercial activity,” §1610(b)(2)—applies only to property of an “agency or instrumentality” of a foreign state. It does not apply to property of an entity that itself is an inseparable part of the foreign state. §1610(a). Elahi, 546 U. S., at 452–453.
We remanded the case, and on remand, the Ninth Circuit held that the Ministry of Defense fell into the lattercategory (an inseparable part of the state of Iran), not the former (an “agency or instrumentality” of Iran). 495 F. 3d 1024, 1035–1036 (2007). Hence Elahi could not take advantage of the “engaged in commercial activities” exception. The Court of Appeals also found inapplicable a slightly different exception applicable to “property . . . of a foreign state . . . used for a commercial activity in the United States,” 28 U. S. C. §1610(a). 495 F. 3d, at 1036– 1037.
Nonetheless the Court of Appeals found yet another exception that it believed denied Iran its sovereign immunity defense. The court pointed out that in 2002 Congress had enacted the TRIA. That Act permitted a person witha terrorism-related judgment to attach an asset of the responsible “terrorist” state to satisfy the judgment, “[n]otwithstanding any other provision of law,” provided that the asset was a “blocked asset.” §201(a), 116 Stat. 2337. The Court of Appeals noted that the Cubic Judgment arose out of a pre-1981 contract with Iran involving
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an air combat training system for Iran, and that President Carter had blocked virtually all Iranian assets following the Iranian hostage crisis. See Exec. Order No. 12170, 44 Fed. Reg. 65729 (“block[ing] all property and interests inproperty of the Government of Iran . . . subject to the jurisdiction of the United States”), promulgated pursuantto the authority of International Emergency Economic Powers Act, 50 U. S. C. §§1701–1702 (2000 ed. and Supp.V); 31 CFR §535.201. The Court of Appeals then held thatthe President had never unblocked the asset in question. 495 F. 3d, at 1033. In its view, the many unblockingorders that were issued after the 1981 Algiers Accords, see, e.g., Exec. Orders Nos. 12277–12282, 3 CFR 105–113; 31 CFR §§535.211–535.215, 535.579(a), did not apply because those unblocking orders omitted “military goodssuch as the [training system that underlay the Cubic Judgment].” 495 F. 3d, at 1033.
The Court of Appeals also rejected Iran’s argument that Elahi had waived his right to attach the Cubic Judgmentregardless (a matter to which we shall turn in Part III). And the court concluded that Elahi was free to attach the Judgment. Id., at 1037.
Iran, with the support of the Department of State, asked us to grant certiorari. We did so, and we shall consider both aspects of the Court of Appeals’ determination.
II
A
We turn first to the question whether the Cubic Judgment was a “blocked asset.” The Ninth Circuit held that the asset in question consisted of Iran’s interest in military goods, namely an air combat training system, which it believed the Executive Branch had failed to unblock after the Iranian hostage crisis ended. None of the parties here, however, supports the Ninth Circuit’s determination.And neither do we.
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The basic reason we cannot accept the Ninth Circuit’srationale is that we do not believe Cubic’s air combat training system is the asset here in question. Elahi does not seek to attach that system. Cubic sent the systemitself to Canada, where, as far as we know, it remains. Rather, Elahi seeks to attach a judgment enforcing anarbitration award based upon Cubic’s failure to account to Iran for Iran’s share of the proceeds of that system’s sale. And neither the Cubic Judgment nor the sale proceedsthat it represents were blocked assets at the time the Court of Appeals issued its decision.
In 1981, the Treasury Department issued an order thatauthorized “[t]ransactions involving property in whichIran . . . has an interest” where “[t]he interest in the prop-erty . . . arises after January 19, 1981.” 31 CFR §535.579(a)(1) (emphasis added). As the Court of Appealsitself pointed out, Iran’s interest in the Cubic Judgmentarose “on December 7, 1998, when the district court confirmed the [arbitration] award.” 385 F. 3d, at 1224. Since it arose more than 17 years “after January 19, 1981,” the Cubic Judgment falls within the terms of Treasury’sorder. And that fact, in our view, is sufficient to treat the Judgment as unblocked.
Iran’s interest in the property that underlies the CubicJudgment also arose after January 19, 1981. As the International Court of Arbitration held, Cubic and Iran entered into their initial contract before 1981. But theylater agreed to discontinue (but not to terminate) the contract. Arbitration Award G–15, G–21. They agreedthat Cubic would try to sell the system elsewhere. Id., ¶C.9.15, at G–14. And they further agreed that they would take “final decisions” about who owed what to whom “only . . . once the result of Cubic’s attempt to resellthe System” was “known.” Id., ¶B.10.7, at G–17.
Cubic completed its sale of the system (to Canada) in October 1982. Id., ¶B.12.14, at G–22. And the arbitrators
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referred to October 1982 as “the date the Parties had in mind when they agreed to await the outcome of Cubic’sresale attempts.” Ibid. Only then was Cubic “in a positionto reasonably, comprehensively and precisely account for the reuse of components originally manufactured for Iranand for any modification costs.” Ibid. For those reasons, and in light of the arbitrators’ findings, we must concludethat October 1982 is the time when Iran’s claim to proceeds arose.
The upshot is that, whether we consider Iran’s “interest in property” as its interest in the Cubic Judgment itself orits underlying interest in the proceeds of the Canadian sale, the interest falls within the terms of the TreasuryDepartment’s general license authorizing “[t]ransactions involving property in which Iran . . . has an interest” where “[t]he interest in the property . . . arises after January 19, 1981.” 31 CFR §535.579(a). And, as we said, that fact is sufficient for present purposes to treat the asset ashaving been unblocked at the time the Ninth Circuitissued the decision below.
Finally, even if we were to assume (as the Ninth Circuit held) that the relevant asset were Iran’s pre-1981 interest in the air combat training system itself, we should still conclude that that asset was not “blocked” at the time of the decision below. As the Government points out, suchan interest falls directly within the scope of Executive Order No. 12281, an unblocking order that required property owned by Iran to be transferred “as directed . . . bythe Government of Iran.” See also 31 CFR §535.215(a).None of the four authorities upon which the Ninth Circuit relied indicates the contrary conclusion. First, the Circuit cited the Arms Export Control Act, 82 Stat. 1321, 22
U. S. C. §2751 et seq., and its implementing regulations, astatute and regulations which regulate arms shipments.It is true that, notwithstanding Executive Order No. 12281, the export of certain military equipment remained
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subject to regulation under other statutes, including theArms Export Control Act. See 31 CFR §535.215(c). But that fact does not show that military equipment remained blocked under IEEPA. The Court of Appeals next cited the1979 Executive Order freezing Iranian assets, Exec. Order No. 12170, 3 CFR 457 (Comp. 1980)—but it failed to consider the effect of the subsequent unblocking order just discussed. The Court of Appeals also relied on a 2005 Presidential notice extending the national emergency withrespect to Iran, 70 Fed. Reg. 69039, but that notice did not impose any additional restrictions on Iranian assets.Finally, the Court of Appeals pointed to a Treasury Department guidance document, which states that “[c]ertainassets”—consisting “mainly of military and dual-use property”— “related to . . . claims” by “U. S. nationals . . . against Iran or Iranian entities” still being litigated in the Tribunal “remain blocked in the United States.” Office of Foreign Assets Control, Dept. of Treasury, Foreign Assets Control Regulations for Exporters and Importers 23(2007). But the training system does not fall into thecategory of assets identified by the guidance document. The system neither “remain[s] . . . in the United States”(having been sent to Canada), nor was it related to claimsby “U. S. nationals . . . against Iran or Iranian entities” before the Tribunal. In sum, no authority supports the Ninth Circuit’s conclusion that an Iranian interest in the training system itself would be a “blocked asset.” And none of the parties defend the Ninth Circuit’s conclusion here.
B Although the Cubic Judgment was not a blocked asset at the time the Court of Appeals reached its decision, theGovernment believes that it is a blocked asset now. In 2005 the President issued a new Executive Order that blocks assets held by proliferators of weapons of mass
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destruction. Exec. Order No. 13382, 3 CFR 170 (2005Comp.). And in 2007, after the Court of Appeals issued its decision, the State Department designated certain component parts of Iran’s Ministry of Defense as entities whose property and interests in property are blocked under Executive Order No. 13382. See 72 Fed. Reg. 71991– 71992. If the Iranian entity to which the Cubic Judgment belongs falls within the terms of the State Department’sdesignation, then presumably that asset is blocked at thistime.
The problem for the Government, however, is that Irandoes not agree that the relevant parts of its Ministry of Defense fall within the scope of the State Department’s designation. Thus the matter is in dispute. The lower courts have not considered that dispute. The relevant arguments have not been set forth in detail here. And in such circumstances we normally would remand the case, permitting the lower courts to decide the issue in the firstinstance. See, e.g., F. Hoffmann–La Roche Ltd v. Empa-gran S. A., 542 U. S. 155, 175 (2004). Consequently, weshall not decide whether the new Executive Branch actions have blocked the Cubic Judgment. Instead, we turn to the “waiver” question. And our answer (that Elahi has waived his right to attach the Cubic Judgment) makes itunnecessary to remand the blocking question for further consideration.
III As we have just said, the second question concerns Elahi’s waiver of his right to attach the Cubic Judgment.In 2000, Congress enacted a statute that offers some compensation to certain individuals, including Elahi, whohold terrorism-related judgments against Iran. VPA §2002, as amended by TRIA §201(c). The Act requiresthose who receive that compensation to relinquish “all rights to execute against or attach property that is at issue
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in claims against the United States before an international tribunal, [or] that is the subject of awards rendered by such tribunal.” §2002(a)(2)(D), 114 Stat. 1542; see also §2002(d)(5)(B), as added by TRIA §201(c)(4) (crossreferencing §2002(a)(2)(D)). In 2003 the Government paid Elahi $2.3 million under the Act as partial compensation for his judgment against Iran. Brief for Respondent 9.And at that time, Elahi signed a waiver form that mirrorsthe statutory language. App. to Pet. for Cert. 30 (citing 68 Fed. Reg. 8077, 8081 (2003)).
The question is whether the Cubic Judgment “is at issuein claims” against the United States before an “international tribunal,” namely the Iran-U. S. Claims Tribunal.If so, the Cubic Judgment falls within the terms of Elahi’s waiver. The Court of Appeals believed the Judgment was not “at issue.” 495 F. 3d, at 1030–1031. But we find to the contrary.
A review of the record in Iran-U. S. Claims Tribunal Case No. B61 leads us to conclude that the Cubic Judgment is “at issue” before that Tribunal. In Case No. B61 Iran argued that, between 1979 and 1981, the UnitedStates had wrongly prevented the transfer of Cubic’s aircombat training system to Iran. Iran asked the Tribunal, among other things, to order the United States to paydamages. Statement of Claim, Islamic Republic of Iran v. United States (filed Jan. 19, 1982), App. to Brief for United States as Amicus Curiae 22a, 24a, 31a. In its briefingbefore the Tribunal, Iran acknowledged that any amount it recovered from Cubic would “be recuperated from the remedy sought” against the United States. App. 76, n. 2.And Iran sent a letter to the United States in which it said that any amounts it actually received from Cubic would be “recouped from the remedy sought against the UnitedStates in Case B61.” App. to Brief for United States as Amicus Curiae 84a. But Iran added that the Cubic Judgment could not be used as a setoff insofar as it had been
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attached by creditors. Id., at 85a.
Meanwhile, in a rebuttal brief before the Tribunal, the United States, while arguing that in fact it owed Irannothing, added that at the very least Iran must set off the amount “already . . . awarded” by the International Court of Arbitration (namely, the $2.8 million awarded to Iran from Cubic) against any money awarded by the Tribunal. Id., at 52a, 80a–81a, and n. 32. And the United States’ demand for a setoff applies even if third parties haveattached the Cubic Judgment. See Tr. of Tribunal Hearing, in No. B61 (Iran-U. S. Cl. Trib., Dec. 7 and 12, 2006), App. to Brief for Respondent 37, 38–39, 41, 42.
The upshot is a dispute about the Cubic Judgment. The United States argues (and argued before the Tribunal) that the Tribunal should set off the $2.8 million that the Cubic Judgment represents against any award that the Tribunal may make against the United States in Case No. B61. Iran argues (and argued before the Tribunal) that the Tribunal should not set off the $2.8 million insofar as third parties have attached the Judgment.
To put the matter in terms of the language of Elahi’swaiver, one can say for certain that the Cubic Judgment is“property.” And Case No. B61 itself is a “clai[m] against the United States before an international tribunal.” We can also be reasonably certain that how the Tribunal should use that property is also under dispute or in question in that claim. Moreover, since several parties other than Elahi have already attached the Cubic Judgment, seeBrief for United States as Amicus Curiae 20, the question whether an attached claim can be used as a setoff is potentially significant, irrespective of Elahi’s own efforts to attach the judgment.
Are these circumstances sufficient to place the CubicJudgment “at issue” in Case No. B61? Elahi argues not. He points out that the Cubic Judgment does not appear on a list of property contained in Iran’s statement of claim in
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Case No. B61; nor is it the subject of any other claimbefore the Tribunal. Indeed, Iran and the United States do not dispute the Cubic Judgment’s validity; they do not dispute the Cubic Judgment’s ownership; and they do not dispute the fact that the United States’ asset freeze had noadverse effect on the Cubic Judgment or on Iran’s entitlement to the Cubic Judgment. As the dissent correctlypoints out, the Judgment is not “at issue” in any of these senses. The Judgment will neither be suspended nor modified by the Tribunal in Case No. B61, nor is theJudgment property claimed by Iran from the United States in that case, see post, at 2–5.
But that does not end the matter. The question iswhether, for purposes of the VPA, a judgment can nevertheless be “at issue” before the Tribunal even when it will not be suspended or modified by the Tribunal and when itis not claimed by Iran from the United States. Here, a significant dispute about the Cubic Judgment still remains, namely a dispute about whether it can be used by the Tribunal as a setoff. And in our view, that dispute is sufficient to put the Judgment “at issue” in the case.
For one thing, we do not doubt that the setoff matter is “under dispute” or “in question” in Case No. B61, and those words typically define the term “at issue.” Black’s Law Dictionary 136 (8th ed. 2004). In the event that the Tribunal finds the United States liable in Case No. B61, the total sum awarded to Iran by the Tribunal will depend on whether the Judgment is used as a setoff. And whether the Judgment can be so used depends, in turn, on whether the United States is right that an attached judgmentshould be set off or whether Iran is right that it should not be—a matter in question before the Tribunal. In that sense, the Judgment is “under dispute.” We recognizethat the dispute is over the use of the Judgment, not the validity of the Judgment. But we do not see how that fact matters.
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For another thing, ordinary legal disputes can easily encompass questions of setoff. Suppose Smith sues a carrier for wrongfully harming a shipment of goods. The question of liability, the question of damages, and thequestion of reducing damages through setoff may all be at issue in the case. Which is the more important issue in aparticular case depends not upon the category (liability, damages, or setoff) but upon the circumstances of that particular case.
Further, the language of the statute suggests that Congress meant the words “at issue” to carry the ordinary meaning just described. Elahi essentially distinguishesbetween property that is the subject of a claim (a claim, forexample, that the United States took or harmed particular property belonging to Iran) and property that might otherwise affect a Tribunal judgment (say, through its use asa setoff). And he argues that the statutory phrase “at issue” covers only the first kind of dispute, not the second.But the statute does not limit the property that is “at issue in a claim” to property that is the subject of a claim. To the contrary, the statute says that judgment creditorssuch as Elahi must
“relinquis[h] all rights to execute against or attachproperty [1] that is at issue in claims against the United States before an international tribunal [or] [2]that is the subject of awards rendered by such tribunal.” VPA §2002(a)(2)(D), 114 Stat. 1542 (emphasisadded); see also §2002(d)(5)(B), as added by TRIA §201(c)(4) (cross-referencing §2002(a)(2)(D)).
Had Congress wanted to limit the property to which it first refers (namely, property that is “at issue” in a claim)to property that is the subject of a claim, it seems likely that Congress straightforwardly would have used the words “subject of”—words that appear later (in respect toawards rendered) in the very same sentence.
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Finally, the statute’s purpose leans in the direction of a broader interpretation of the words “at issue” than thatproposed by Elahi. Pointing to the statute’s legislativehistory, Elahi says that the statute seeks to enable victims of terrorism to collect on judgments they have won againstterrorist parties. See Brief of Respondent 6–7, 31 (citing
H. R. Conf. Rep. No. 107–779 (2002); 148 Cong. Rec. 23119, 23121–23123 (2002) (statement of Sen. Harkin)).He is such a victim, and, he says, Congress would haveintended an interpretation that favors his cause. But Congress had a more complicated set of purposes in mind. The statute authorizes the attachment of blocked assets, and it provides partial compensation to victims to be paid(in part) from general Treasury funds. But it does so in exchange for a right of subrogation, VPA §2002(c), and for the victim’s promise not to pursue the balance of the judgment by attaching property “at issue” in a claimagainst the United States before the Tribunal. VPA §§2002(a)(2)(D), (d)(5)(B), as added by TRIA §201(c)(4). The statute thereby protects property that the United States might use to satisfy its potential liability to Iran.
The Cubic Judgment falls into this category. It is property that the United States could use to satisfy its potential liability to Iran, but which may be unavailable for that purpose if successfully attached. With respect to thestatute’s revenue-saving purpose, it is difficult to distinguish between property that is the subject of a claimbefore a tribunal and property that is in dispute before the tribunal in respect to its use as an offset.
The dissent adds that the “better reading” of the words“at issue” is one that limits them to the “foster[ing] [of]compliance with the Government’s international obligations.” Post, at 6. We agree with this statement, but we do not see how it adds anything but new phraseology to the dissent’s basic claim, namely that arguments before the Tribunal about “setoffs” do not count as “issues.” To
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repeat our own view of the matter, a dispute aboutwhether one country must pay the other country moremoney because it cannot use particular property (because of an attachment) to satisfy an obligation raises an issuethat the Tribunal must resolve, no less and no more than other issues that might be before the Tribunal in that case or other cases.
Contrary to the dissent’s suggestion, post, at 8, there is no unfairness in our holding. Elahi could have chosen to forgo the Government’s compensation scheme, and he thencould have attached the Cubic Judgment, as have other terrorist victims with judgments against Iran. See Brief for United States as Amicus Curiae 20. But that course carried risks: Iran had challenged Elahi’s notice of lien and it was uncertain whether Elahi would prevail. In 2003, while litigation over his notice of lien was pending, Elahi chose to participate in the Government’s scheme.He thereby received the benefit of immediate, guaranteed partial compensation from the Government—in exchange for a promise not to interfere with property that the United States might need to satisfy potential liability toIran. Having received $2.3 million in Government funds, there is nothing unfair about holding Elahi to the terms of his bargain.
Elahi makes several other arguments. He points tolanguage in the TRIA (the statute authorizing attachmentof blocked assets) which says: “[n]otwithstanding any other provision of law” the “blocked assets” of a state “shall be subject to . . . attachment in aid of execution” of a terrorism-related judgment. §201(a), 116 Stat. 2337 (emphasis added). He also points to VPA §2002(d)(4), as added by TRIA §201(c)(4), 116 Stat. 2339, which reads: “[N]othing in this subsection [which contains the relinquishmentprovision] shall bar . . . enforcement of any” terrorismrelated “judgment . . . against assets otherwise available under this section or under any other provision of law”
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(emphasis added). The first provision, Elahi argues, permits him to attach blocked assets notwithstanding the VPA’s requirement that he relinquish his right to attachproperty “at issue” before an international tribunal; and that conclusion, he says, is reinforced by VPA §2002(d)(4). Our interpretation, he adds, would “bar . . . enforcement”of a terrorism-related judgment “otherwise available” under TRIA §201(a)—contrary to the statutory language just quoted.
But VPA §2002(d)(5) requires Elahi, in exchange for having received partial compensation, to relinquish “all rights” to attach property “at issue” in an internationaltribunal. VPA §2002(a)(2)(D), 114 Stat. 1542 (crossreferenced by §2002(d)(5)(B); emphasis added). And, as several courts of appeals have apparently assumed, the relinquishment of “all rights” includes the right given by TRIA §201(a) to attach blocked assets. See Hegna v. Islamic Republic of Iran, 376 F. 3d 226, 232 (CA4 2004); Hegna v. Islamic Republic of Iran, 380 F. 3d 1000, 1009 (CA7 2004); Hegna v. Islamic Republic of Iran, 402 F. 3d 97, 99 (CA2 2005) (per curiam).
Moreover, the relinquishment provision that applies toElahi was added to the VPA by the very same statute, theTRIA, that permitted the attachment of blocked assets, and which contains the “notwithstanding” clause uponwhich Elahi relies. §201(a) (blocked assets); §201(c) (amending VPA). Congress could not have intended thewords to which Elahi refers to narrow so dramatically animportant provision that it inserted in the same statute. And for those who, like Elahi, argue that the legislativehistory supports his reading of the statute, we point out that the history suggests that Congress placed the “notwithstanding” clause in §201(a) for totally different reasons, namely to eliminate the effect of any Presidential waiver issued under 28 U. S. C. §1610(f) prior to the date of the TRIA’s enactment. H. R. Conf. Rep. No. 107–779, at
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27.
Elahi makes three final arguments, first that setoff isnot “at issue” because the United States has argued in Case No. B61 that it has no liability at all, second that setoff is not “at issue” because the United States has not formally asserted a setoff before the Tribunal, and third that the Government violated his due process rights by inadequately informing that his waiver would deprive him of his right to attach the Cubic Judgment. We find none of these arguments convincing and shall briefly indicate our reasons in summary form.
As to the first, the United States argued setoff in the alternative, thereby placing it, in the alternative, “at issue” before the Tribunal. As to the second, Elahi at most points to a ground for disputing the propriety, underTribunal rules, for granting a setoff; he does not deny that the Tribunal sometimes can do so, see, e.g., Futura Trad-ing Inc. v. National Iranian Oil Co., 13 Iran-U. S. Cl. Trib. Rep. 99, 115–116, ¶62 (1986) (preventing collection on a claim because the claimant had already collected the sumat issue from a different party). Hence whether the Tribunal can provide for a setoff here is a matter for the Tribunal to decide, and until it does decide, one way or theother, the matter is “at issue.” As to the third, we can find nothing that shows Elahi was unfairly surprised by thescope of his waiver—certainly not to the point of violating any Due Process rights. See, e.g., 14 Iran-U. S. Cl. Trib. Rep., at 278, ¶10 (dismissal of Iran’s claim against Cubic was “without prejudice to any findings it may make concerning [the Cubic contract] in Case No. B61”).
IV We conclude: The Cubic Judgment was not blocked at the time the Court of Appeals reached its decision. We do not decide whether more recent Executive Branch actions would block the Judgment at present. Regardless, Elahi
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It is so ordered.
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Opinion of KENNEDY, J.
SUPREME COURT OF THE UNITED STATES
No. 07–615
MINISTRY OF DEFENSE AND SUPPORT FOR THE
ARMED FORCES OF THE ISLAMIC REPUBLIC OF
IRAN, PETITIONER v. DARIUSH ELAHI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 21, 2009]
JUSTICE KENNEDY, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, concurring in part and dissenting in part.
I join Parts I and II of the Court’s opinion but, with allrespect, dissent from Parts III and IV. As to Parts I and II, the Court is correct, in my view, to hold that the CubicJudgment was not a “blocked asset” when the Court of Appeals reached its decision. As to Parts III and IV, however, respondent Dariush Elahi has not relinquished his right to attach the Cubic Judgment. By holding otherwise, the Court departs from the plain meaning and the purpose of the statutes Congress enacted to compensateElahi and other victims of terrorism.
I
A
The statutory phrase to be interpreted is “property thatis at issue in claims against the United States before aninternational tribunal.” Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), §2002(d)(s), asadded by Terrorism Risk Insurance Act of 2002 (TRIA),§201(c)(4), 116 Stat. 2339, note following 28 U. S. C.§1610. The context, of course, is Case No. B61—a suit byIran against the United States that is pending before the
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Iran-U. S. Claims Tribunal. The word “property,” as used in the statutory phrase, surely can refer both to tangible property, such as real estate or valuables in a safe-deposit box, and to intangible property interests, such as a claim,a cause of action or, as in this case, a judgment rendered by a United States district court. Still, it must be acknowledged that the term “at issue” is neither precise nor much illuminated by its operation in cases or other statutes. The absence of any clear authority on this point makes it imperative to adopt an interpretation that accords with familiar and well-settled principles of law. In this case those principles are the rules designed to givefull and proper respect to final judgments rendered bycourts of competent jurisdiction.
To determine whether the Cubic Judgment is “at issue”in Case No. B61, the primary consideration must be whether the Claims Tribunal, in the exercise of its own authority and jurisdiction, can affect the ownership, disposition, or control of the property the judgment comprises. Here the property in question is a judgment rendered by the United States District Court for the Southern District of California. As all acknowledge, that court had jurisdiction over the subject and the persons then before it. And, as is further conceded, that court’s judgment is valid and has binding force on Cubic Defense Systems, Inc., the nongovernmental party before that court. See Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 29 F. Supp. 2d 1168, 1170 (1998). Neither party to Case No. B61 questions the judgment or requests the Claims Tribunal tointerpret it—much less to alter, enforce or invalidate it.
Even if one of the parties were to ask the Claims Tribunal to modify the Cubic Judgment, the Tribunal would simply lack power to do so. The judgment arises out ofIran’s contractual dispute with Cubic, an American company, and the Tribunal has no “jurisdiction over claims by
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Iran against United States nationals.” Ministry of Nat. Defence of Islamic Republic of Iran v. United States, 14 Iran-U. S. Cl. Trib. Rep. 276, 278 (1987) (Case No. B66). Iran tried to sue Cubic in the Claims Tribunal 20 yearsago, but the Tribunal dismissed that suit for lack of jurisdiction. Ibid. In these circumstances the Cubic Judgmentis simply an extrinsic fact beyond the Claims Tribunal’s power to affect. True, the Tribunal, when it enters its own orders, might or might not give credit to the United States for a payment, or a right to payment, arising out of theCubic Judgment; but that does not put the judgment itself at issue.
B Even if the Court’s broad reading of the phrase “atissue” were correct, the Court’s conclusion would still be wrong because the relinquishment provision is limited toproperty that is at issue “in claims against the United States.” And the Cubic Judgment is not part of the claimsIran makes in Case No. B61, as both Iran and the United States have made clear in their submissions to the Claims Tribunal. To put the countries’ filings in context, a brief review of both the Cubic Judgment and Case No. B61 is necessary.The Cubic Judgment is the result of a contract disputebetween Iran and Cubic. In the late 1970’s, Iran hired Cubic to build an air combat training system, and advanced some $12 million for the project. But Iran failed to make all the payments due. App. 43–44. Thus rebuffed, Cubic sold the system to Canada and refused to refund any of Iran’s advance payments. Iran brought an arbitration against Cubic. The panel of arbitrators, after ascertaining Cubic’s costs of building the system, and afterallowing the company a reasonable profit of $3.5 million, ordered Cubic to return to Iran $2.8 million of the $12 million advance. Iran brought this arbitration award to
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the U. S. District Court for the Southern District of California, which issued the judgment at issue here. The judgment orders Cubic to pay Iran $2.8 million. Cubic Defense Systems, supra, at 1171, 1174.
Case No. B61 is in essence a contract dispute between Iran and the United States. Iran accuses the United States of breaking its promise, made in the Algiers Accords, to “arrange . . . for the transfer to Iran of all Iranian properties” located in the United States on January 19,1981. 20 I. L. M. 224, 227, ¶9 (1981). One of the properties Iran claims is Cubic’s air combat training system. See Statement of Claim in No. B61, (Iran-U. S. Cl. Trib.), App.to Brief for United States 22a, 24a, 31a. Both parties haveconfirmed, in their joint report describing all the “propertyclaimed by Iran,” that Cubic’s system is “at issue” in Iran’sclaims. Cover Letter to Final Joint Report (July 14, 1989), App. to Brief for Respondent 14.
But the Cubic Judgment, in contrast to Cubic’s trainingsystem, is not part of Iran’s claims in Case No. B61. Bothcountries made this clear in their submissions to the Tribunal. Their joint report does not list the Cubic Judgmentamong the properties “at issue.” Final Joint Report (July 14, 1989), App. to Brief for Respondent 15–23. And, in a statement altogether consistent with that omission, Iran told the Tribunal that “[t]he subject matter of [Case No. B61], at variance with the [arbitration] action [againstCubic], is the losses suffered by Iran as a result of the United States’ non-export of Iranian properties.” Iran’s Statement 16, App. 73, 76. The United States agreed, stating that the “only ‘property that’ . . . is properly atissue” in Case No. B61 is property that “‘has already beenmade the subject of a claim’” by Iran against the UnitedStates. U. S. Rebuttal (Sept. 1, 2003), 1 Lodging p. L419(emphasis deleted) (Sealed). The United States reaffirmed this position in oral argument before the Tribunal: “Any losses in relation to [the Iran-Cubic] contract are not re5
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coverable against the United States and issues regarding losses under that contract do not belong before this Tribunal.” Tribunal Hearing 124 (Dec. 12, 2006), App. to Brief for Respondent 42.
Because the Claims Tribunal lacks jurisdiction over the Cubic Judgment, and because that judgment is not part ofIran’s claims against the United States in Case No. B61,the judgment is not “property that is at issue in claims against the United States” under the plain meaning of the TRIA’s relinquishment provision. TRIA §201(c)(4), 116Stat. 2339 (amending VTVPA §2002(d)).
II
Even if the text of the relinquishment provision weresomehow ambiguous—and it is not—then the purpose ofthe VTVPA and TRIA would tip the scales in Elahi’s favor. The text and the evident purpose of those statutes demonstrate that Congress’ primary purpose was to compensate the victims of terrorism, not to secure from those victims a relinquishment of their claims to property owned by entities found to have sponsored terrorism.
The text of the VTVPA, and of the amendments made to it by the TRIA, shows that Congress’ primary purpose was to enable the victims of terrorism to execute on the assets of a state found to have sponsored or assisted in a terrorist act. In the first subsection of the TRIA concerning theattachment of state assets by victims of terrorism, Congress provided that “[n]otwithstanding any other provision of law . . . in every case in which a person has obtained a judgment against a terrorist party on a claim based uponan act of terrorism . . . the blocked assets of that terrorist party . . . shall be subject to execution or attachment in aid of execution in order to satisfy such judgment . . . .” TRIA §201(a), id., at 2337. The effect of this subsection is to ensure that other laws do not bar victims’ efforts to enforce judgments against terrorist states. To like effect is
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another paragraph of the VTVPA concerning victims of Iranian terrorism. Entitled “Statutory Construction,” this paragraph reads: “Nothing in this subsection shall bar, orrequire delay in, enforcement of any judgment to which this subsection applies under any procedure . . . .” §2002(d)(4), as added by TRIA §201(c)(4), id., at 2339. Though neither provision refers in direct terms to the relinquishment provision, both provisions show Congress’ intent to broaden, rather than limit, the rights of victimslike Elahi to execute on property owned by state sponsors of terrorism. Yet the opinion issued by the Court todaydoes just the opposite.
To contravene the statute’s clear design, the Courtsurmises that Congress also had a “more complicated” purpose, namely, to “protec[t] property that the UnitedStates might use to satisfy its potential liability to Iran.” Ante, at 17. This imagined purpose, the Court says, requires us to read the relinquishment provision as broadly as possible so as to prevent victims of terrorism fromattaching property. But the Court does not point to evidence of this putative purpose, aside from the text of the relinquishment provision itself—a text which, as submitted above, the Court reads the wrong way.
The better reading of the relinquishment provision—and one much more consistent with Congress’ protective purpose—is not as a “revenue-saving” device, ibid., but as a way to foster compliance with the Government’s international obligations. If Iran has asked the Claims Tribunal to resolve the status of certain property, then Iran and the Tribunal may well take the position that the United States has a responsibility under the Algiers Accords toprevent U. S. nationals from executing against that property. That concern is not present in this case. The ownership of the Cubic Judgment is not disputed, and allowing Elahi to attach it will not affect Iran’s right to obtain full recovery from the United States in Case No. B61. At
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most, the attachment might affect the right of the UnitedStates to use the judgment to offset its liability.
The Court purports to agree with this reading of thestatute’s purpose. Ante, at 17. But that agreement ishard to square with the Court’s insistence upon fulfillingwhat it sees as the statute’s “revenue-saving purpose.” Ibid. If the Court did in fact believe that the “‘better reading’” of the statute’s purpose, ibid., is to foster compliance with the United States’ international obligations, then the Court would affirm the judgment of the Court ofAppeals. Elahi’s attachment of the Cubic Judgment doesnot hinder the U. S. Government’s efforts to comply withits obligations under the Algiers Accords. At Algiers, theUnited States agreed to “arrange . . . for the transfer to Iran of all Iranian properties” located in the UnitedStates. 20 I. L. M., at 227, ¶9. That is not an obligation topay Iran money, as the Court seems to believe. See ante, at 17. It is instead an obligation to take specific action in regard to specific properties. These specific properties donot include the Cubic Judgment—as the Court concedes. See ante, at 9 (holding that the Cubic Judgment was not blocked). Therefore, Elahi’s attachment of the Cubic Judgment does not impede the United States’ efforts tomake good on its obligations under the Algiers Accords.
To be sure, a judicial lien on one of the specific properties referenced by the Algiers Accords might make it difficult for the U. S. Government to comply with its obligations, under those Accords, to arrange for that property’s transfer to Iran. By encouraging creditors such as Elahi to give up their liens on these specific properties that aresubject to the Algiers Accords, the TRIA makes it easierfor the Government to comply with its obligation to “arrange . . . for the transfer” of these properties to Iran.This purpose (fostering compliance with the United States’ obligation under the Algiers Accords) is more in keeping with the statute’s text than is the Court’s “revenue-saving”
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purpose. And this purpose—that is, the purpose of enabling the United States to meet its obligations under the Algiers Accords—is not in the least frustrated by permitting Elahi to attach the Cubic Judgment, a property that, as the Court concedes, is not subject to the Algiers Accords.
III The facts of this case show the injustice of the Court’sinterpretation. The Court today puts an end to Elahi’s decade-long quest to hold Iran to account for murderinghis brother Cyrus. In 2000, Elahi won a wrongful-death lawsuit against Iran and was awarded some $6 million incompensatory damages. See Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97 (DC). In April 2003, Elahi took what he must have considered a further step toward his goal when he accepted $2.3 million from the U. S. Government under the VTVPA. After today’s ruling, what once appeared Elahi’s gain of$2.3 million now seems to be a loss of $500,000. By taking the VTVPA’s $2.3 million, the Court holds, Elahi relinquished his right to the $2.8 million Cubic Judgment he had already attached. The practical effect of the Court’sruling is to turn the purpose of the VTVPA on its head.Rather than further Elahi’s effort to obtain compensationfor the murder of his brother, the Act has instead.