United States District Court, D. Columbia.
AGUDAS CHASIDEI CHABAD OF UNITED STATES, A non-profit
religious corporation, Plaintiff: Alyza Doba Lewin, LEWIN AND
LEWIN LLP, Washington, DC; Jonathan E. Stern, DREIER STEIN &
KAHAN, LLP, Santa Monica, CA; Nathan Lewin, LEWIN & LEWIN,
LLP, Washington, DC, Robert P. Parker, Steven Lieberman,
ROTHWELL, FIGG, ERNST & MANBECK, PC, Washington, DC.
UNITED STATES OF AMERICA, Interested Party: Nathan Michael
Swinton, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE,
C. Lamberth, United States District Judge.
Agudas Chasidei Chabad of the United States ("
plaintiff" ) moves for interim judgment of accrued
sanctions in the amount of $43,700,000 against defendants
the Russian Federation (" Russia" ), the Russian
Ministry of Culture and Mass. Communication (the "
Ministry" ), the Russian State Library (" RSL"
), and the Russian State Military Archive (" RSMA"
) (collectively, " defendants" ) reflecting
sanctions that have accrued under the Court's January 16,
2013 Order, ECF No. 115. See Plaintiff's Motion
for Interim Judgment of Accrued Sanctions, January 28, 2014,
ECF No. 127. After considering plaintiff's motion, the
United States' second Statement of Interest (" U.S.
Statement" ) in this matter, ECF No. 134;
plaintiff's response, ECF No. 135; oral argument held on
August 20, 2015; Statement of Defendants with Respect to
Further Participation ECF No. 71; and applicable law, and
for reasons given below, the Court will GRANT the motion and
award plaintiff interim judgment of accrued sanctions. The
Court will further ORDER plaintiff to provide notice of
certain actions to the
United States as described in separate order.
brought this action in 2004 seeking return of religious
books, artifacts and other materials concerning the cultural
heritage of its forbearers, which fell into defendants'
hands in the early 20th century. See Agudas
Chasidei Chabad of U.S. v. Russian Fed'n (Chabad
III), 798 F.Supp.2d 260, 263 (D.D.C. 2011). In 2009,
after losing on jurisdictional arguments, defendants'
lawyers informed the Court that they would no longer be
participating in the case as defendants believed the Court
lacked " authority to adjudicate rights in property that
in most cases always has been located in the Russian
Federation. . . ." Statement of Defendants, June 26,
2009, ECF No. 71. A year later, this Court entered default
judgment in favor of Chabad, see Agudas Chasidei
Chabad of U.S. v. Russian Fed'n (Chabad II), 729
F.Supp.2d 141 (D.D.C. 2010), and ordered defendants to "
surrender to the United States Embassy in Moscow or to the
duly appointed representatives of. . . Chabad. . . the
complete collection." Id. Defendants failed to
comply with this order and on January 16, 2013, the Court
granted plaintiff's motion for civil contempt sanctions,
ordering monetary sanctions of $50,000 per day, payable to
plaintiff. See Agudas Chasidei Chabad of U.S. v.
Russian Fed'n (Chabad IV), 915 F.Supp.2d 148 (D.D.C.
continue to disregard the Court's Order and have entered
no further appearance since declaring their unwillingness to
participate further. Plaintiff requests " entry of an
interim monetary judgment in the amount accrued under"
the Court's Sanctions Order of January 16, 2013. See
Court remains deprived of defendants' participation and
can only consider the statement of interest of the United
States and plaintiff's motion. See ECF Nos. 87
and 90-1. The United States objects to the requested interim
judgment of accrued sanctions on two grounds. First, the
United States restates its legal argument against imposition
of sanctions that the Court previously rejected. See
Chabad IV (finding the United States' argument
unpersuasive and sanctions appropriate) and ECF No. 134.
Second, the United States argues that interim judgment of
accrued sanctions would further damage the United States'
foreign policy interests, including its diplomatic efforts to
reach a settlement with defendants on plaintiff's behalf.
ECF No. 134 at 6-9. The Court agrees with plaintiff's
analysis that this is not an enforcement action, and
questions related to enforcement are not ripe for
adjudication. ECF No 135 at 6. Nonetheless, the Court notes
that the mechanism that bridges the action requested by
plaintiff today and enforcement remains uncomplicated. Under
the provisions of 28 U.S.C. § 1610(c), " no
attachment or execution referred to in subsections (a) and
(b) of this section shall be permitted until the court has
ordered such attachment and execution after having determined
that a reasonable period of time has elapsed following the
entry of judgment and the giving of any notice required under
section 1608(e) of this chapter." As the Court noted in
its July 26, 2011 opinion, there are two requirements therein
required for a plaintiff
seeking to enforce judgment against a foreign state.
Chabad III, 798 F.Supp.2d at 266. Specifically,
notice that judgment has been entered and adequate
opportunity to respond. Id. That analysis dealt with
default judgment ordering specific performance requested by
plaintiff. The enforcement question implicated in this
instance is attachment and execution of defendants'
property that may be identified within the United States.
Therefore, the Court notes that as stipulated by plaintiff,
concerns related to such enforcement are premature until such
time as plaintiff has identified property to attach and
execute, provided notice to defendants of such attachment and
execution, and given defendants " reasonable time"
to respond. Id. Given that defendants have had
notice of plaintiff's efforts to liquidate monetary
sanctions for more than a year, it is likely that plaintiff
will be able to pursue attachment and execution.
The Court's Authority to Issue Interim Judgment of
Court has authority to issue sanctions. See
Chabad III, 798 F.Supp.2d at 272-3, and again in
Chabad IV. The Court has been asked to issue interim
judgment, reducing accrued sanctions to a sum certain as of a
specific date. Recalling that the Foreign Sovereign
Immunities Act of 1976's (" FISA" ), Pub.L. No.
94-583, 90 Stat. 2891 (codified as amended at 28 U.S.C.
§ § 1330, 1332(a), 1391(f), 1441 (d), 1602-1611)
" provisions governing jurisdictional immunity, on the
one hand, and execution immunity, on the other, operate
independently," Walters v. Industrial and Commercial
Bank of China, Ltd., 651 F.3d 280 (2d. Cir. 2011), the
Court here examines a predicate to execution immunity
analysis. The Court is not persuaded that the
law should be applied differently now than when it ordered
sanctions under the authority of the FSIA, as applied in
FG Hemisphere Associates, LLC v. Democratic Republic of
Congo, 637 F.3d 373, 394 U.S. App.D.C. 439 (D.C. Cir.
United States argues that the Court has reached the limit of
the Court's authority under the FSIA. The United States
offers no additional persuasive law, facts, or argument to
show that the issue of enforcement is specifically ripe. ECF
No. 134 at 7. The Court may be more proximal to the question
of enforcement than when it ordered sanctions, and while it
has not yet reached the question of enforcement, the Court
notes the implications of this decision with regard to such.
United States argues further that plaintiff intends to pursue
enforcement action and suggests that the Court should
consider such intentions in ruling on this matter. The United
States further admonishes " [t]he Court should be aware
that these further enforcement actions would cause even
greater harm to the United States' foreign policy
interests, including the United States' interest in
promoting a resolution of [this] dispute." ECF No. 134
at 7. The Court takes notice of the United States'
concerns of foreign policy interests and discusses them more
noteworthy that the United States does not address
defendants' willful withdrawal from this matter and
continued failure to either appear or comply with the
Court's orders. Conversely, in every case cited by the
United States in its statement
of interest, defendants (or the party invoking protections
under the FSIA) participated in litigation. SeeArgentine Republic v. Amerada Hess Shipping Corp,
488 U.S. 428, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989); FG
Hemispheres Associates, LLC v. Democratic Republic of
Congo, 637 F.3d 373, 394 U.S. App.D.C. 439 (D.C. Cir.
2011); Autotech Technologies LP v. Integral Research and
Development Corp., 499 F.3d 737 (7th Cir. 2007);
Connecticut Bank of Commerce v. Republic of Congo,
309 F.3d 240 (5th Cir. 2002) (The Democratic Republic of the
Congo did not appear in an initial action, but then
subsequently appeared and took part in litigation); S& S
Machinery Co., v. Masinexportimport, 706 F.2d 411 ...