United States District Court, D. Columbia.
For MARY NELL WYATT, individually and as executrix of the Estate of Ronald E. Wyatt, DANIEL WYATT, AMANDA LIPPELT, MICHELLE BROWN, MARVIN T. WILSON, RENETTA WILSON, MARTY R. WILSON, GINA R. BROWN, BRADLEY G. KEY, KIMI L. JOHNS, BARRY T. KEY, Plaintiffs: Robert Joseph Tolchin, LEAD ATTORNEY, THE BERKMAN LAW OFFICE, LLC, Brooklyn, NY.
For SYRIAN ARAB REPUBLIC, Defendant: Ramsey Clark, LEAD ATTORNEY, CLARK & SCHILLING, New York, NY.
MEMORANDUM AND ORDER
Royce C. Lamberth, United States District Judge.
Plaintiffs have moved the Court for condemnation and recovery of funds held in a bank account at garnishee bank Abu Dhabi International Bank N.V. (" ADIB" ). ECF No. 63. Plaintiffs have so moved in pursuit of partial satisfaction of the judgment awarded against defendant Syria and in their favor by this Court on December 17, 2012. ECF No. 37. Neither ADIB, nor Syria, oppose the motion. Attorneys for Syria, W. Ramsey Clark and Lawrence W. Schilling, have filed a motion to intervene in these garnishment proceedings pursuant to Federal Rule of Civil Procedure 24, claiming an interest in the funds at issue. ECF No. 65. At the invitation of the Court and pursuant to 28 U.S.C. § 517, the United States has also filed a statement of interest regarding the issues raised by these motions. ECF No. 105. Upon consideration of plaintiffs' motion, the motion to intervene, the United States' statement of interest, the evidence submitted, and the applicable law, the Court concludes that plaintiffs' motion for condemnation and recovery will be DENIED.
Plaintiffs have moved for condemnation and recovery of Syrian funds deposited in ADIB's Washington, D.C. branch. The funds, according to documentation submitted by the plaintiffs with their motion, are identified as deposited by the Embassy of Syria. ECF No. 63-1. Documentation submitted by Clark and Schilling indicates that the funds constitute a blocked electronic funds transfer between the Embassy of Syria and Clark. See ECF No. 65-1; ECF No. 103-1. The transfer, according to Clark, represented " payment of a legal fee for the provision of legal services by myself and Lawrence W. Schilling to the Syrian Arab Republic." W. Ramsey Clark Aff. ¶ 2, ECF No. 65-2.
ADIB blocked the funds on June 13, 2013 pursuant to Office of Foreign Assets Control (" OFAC" ) sanctions against Syria. ECF No. 65-1. Those sanctions, codified at 31 C.F.R. § 542.201, state that property of the Government of Syria in the United States is " blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in."
The Clerk of the Court issued a writ of attachment to ADIB on May 21, 2014 and the bank responded shortly thereafter, indicating that the Syrian funds were being held as blocked. ECF No. 63-1. Plaintiffs then moved in July for condemnation and recovery before this Court. While that motion and the motion to intervene were pending, OFAC informed ADIB on November 7, 2014 that the original transfer to Clark was now authorized in accordance with the original payment instructions. ECF No. 103-1. The funds continue to be held at ADIB pending the Court's resolution of plaintiffs' motion.
II. LEGAL STANDARD
Plaintiffs seek to garnish these funds from ADIB on the basis of two statutes: section 1610 of the Foreign Sovereign Immunities Act (" FSIA" )--specifically sections 1610(a)(7) and 1610(g)--and section 201 of the Terrorism Risk Insurance Act of 2002 (" TRIA" ). Under section 1609 of the FSIA, property of a foreign state is presumed immune from attachment and execution absent an exception to immunity provided by sections 1610 or 1611 of the statute. 28 U.S.C. § 1609. As a result, when attachment is sought pursuant to section 1610 of the FSIA, the Court is obligated " to determine--sua sponte if necessary--whether an exception to immunity applies," whether or not the foreign state appears to assert its immunity. Rubin v. Islamic Republic of Iran, 637 F.3d 783, 785-86 (7th Cir. 2011); see also Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1128 (9th Cir. 2010) (concluding that courts should consider execution immunity sua sponte). The duty to consider execution immunity also applies to property attached pursuant to section 201 of the TRIA. Pub. L. No. 107-297, § 201, 116 Stat. 2322, 2337-2340 (2002) (codified as amended at 28 U.S.C. § 1610 note) (hereinafter " TRIA § 201" ). That section of the TRIA is codified as a note to section 1610 of the FSIA and, therefore, comes within the ambit of section 1609's presumption of execution immunity.
Property is immune from attachment under section 1610 of the FSIA if it is subject to the Vienna Convention on Diplomatic Relations (" VCDR" ). The FSIA provides that any exceptions to immunity set forth in the statute are " [s]ubject to existing international agreements to which the United States is a party at the time of enactment." 28 U.S.C. § 1609. The VCDR is one such " existing international agreement." Compare Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891 (1976), with Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 (hereinafter " VCDR" ) (VCDR entered into force on Dec. 13, 1972). Therefore, property exempt from attachment under the VCDR is also exempt under the FSIA, regardless of how it would be treated under sections 1610 and 1611. See 767 Third Ave. Assocs. v. Permanent Mission of Republic of Zaire to U.N., 988 F.2d 295, 297 (2d Cir. 1993) (holding that the " diplomatic and consular immunities of foreign states recognized under various treaties remain unaltered by the [FSIA]" and analyzing the VCDR as one such treaty); cf. Bennett v. Islamic Republic of Iran, 618 F.3d 19, 21, 393 U.S.App.D.C. 49 (D.C. Cir. 2010) (citing 28 U.S.C. § § 1609-1610) (" Diplomatic properties are generally immune from attachment." ).
Section 201 of the TRIA provides an additional exception to execution immunity for property that the statute defines as " blocked assets." Two aspects of the definition of blocked assets are relevant to these proceedings. First, blocked assets do not include property subject to the VCDR if the property is " being used exclusively for diplomatic or consular purposes." TRIA § 201(d)(2)(B)(ii). Second, blocked assets only include property " seized or frozen by the United States" pursuant to enumerated sections of the Trading with the Enemy Act or the International Emergency Economic Powers Act. TRIA § 201(d)(2)(A).
A. Foreign Sovereign Immunities Act Section ...