Opinion
Civil Action No.: 01-1655 (RMU), Document Nos.: 27, 33, 36.
March 23, 2005
I. INTRODUCTION
This matter comes before the Court on the plaintiffs' motion for a writ of execution, the United States' motion to quash the plaintiffs' writ of attachment and the plaintiffs' motion to examine affiant. The plaintiffs, American citizens injured in a suicide bombing and the victims' family members, seek to enforce a judgment through a writ of execution against two bank accounts belonging to the defendants. Because these bank accounts are blocked assets under the Terrorism Risk Insurance Act ("TRIA"), the court grants the plaintiffs' motion for a writ of execution and denies the government's motion to quash. Because any alleged contradictions in the government's affidavit in support of the motion to quash are irrelevant, the court denies the plaintiff's motion to examine affiant.
The United States appears in this action pursuant to 28 U.S.C. § 517, which authorizes an officer of the Department of Justice to "attend to the interests of the United States in a suit pending in a court of the United States, or in the courts of a State, or to attend to any other interest of the United States." 28 U.S.C. § 517.
The defendants are the Islamic Republic of Iran, The Iranian Ministry of Information and Security, as well as senior Iranian officials Ayatollah Ali Hoseini, Ali Akbar Hashemi-Rafsanjani and Ali Fallahian-Khuzestani.
II. BACKGROUND
For a more detailed factual background, see Rubin v. Islamic Republic of Iran, 281 F. Supp. 2d 258 (D.D.C. 2003).
On September 4, 1997, terrorists funded and sponsored by the defendants detonated several bombs at the Ben Yehuda pedestrian mall in downtown Jerusalem, Israel. Comp. ¶ 14. Plaintiffs Jenny Rubin, Daniel Miller, Abraham Mendelson, Stuart Hersh and Noam Rozenman were present at the bombing and suffered serious injuries. Id. ¶¶ 5, 9, 11-12.
On September 10, 2003, this court granted the plaintiffs a default judgment for $71,500,000.00 in compensatory damages. Rubin v. Islamic Republic of Iran, 281 F. Supp. 2d 258 (D.D.C. 2003). The plaintiffs now seek a writ of execution on two Bank of America ("the Bank") accounts titled "Consulate General of the Islamic Republic of Iran in Chicago" and "Consolate General Iran" (entitled by the bank as the "Third Account and the "Fourth Account," respectively).
On June 1, 2004, the plaintiffs filed a motion for a writ of execution on the Third and Fourth Accounts pursuant to Federal Rule of Civil Procedure 69(a). On August 2, 2004, the United States moved pursuant to 28 U.S.C. § 517 to quash the plaintiffs' writ of attachment. The plaintiffs subsequently filed a motion requesting the government's affiant to appear for crossexamination on his declaration in support of the United States' motion to quash. The court now turns to those motions.
III. ANALYSIS A. Legal Standard for Recovery of Assets Under the Terrorism Risk Insurance Act
The Terrorism Risk Insurance Act of 2002 ("TRIA"), Pub.L. No. 107-297, 116 Stat. 2322, allows plaintiffs to attach and execute against the "blocked assets" of defendants who are "terrorists, terrorist organizations, [or] State sponsors of terrorism." TRIA Title II § 201(a). A "blocked asset" is "any asset seized or frozen by the United States under . . . sections 202 and 203 of the International Emergency Economic Powers Act ( 50 U.S.C. 1701; 1702)." Id. § 201(d)(2)(A). But, a "blocked asset" does not include "property subject to the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations" that "is being used exclusively for diplomatic or consular relations." Id. § 201(d)(2)(B)(ii).
B. The Third and Fourth Accounts are Blocked Assets
The parties do not dispute that the plaintiffs have obtained a judgment against a terrorist party, on a claim for which a terrorist party is not immune under 28 U.S.C. § 1605(a)(7). The parties also do not dispute that the United States has frozen the Third and Fourth Accounts pursuant to the International Emergency Economic Powers Act. Thus, to determine if the plaintiffs may recover from the Third and Fourth Accounts pursuant to the TRIA, the court must determine whether these accounts are blocked assets. Specifically, the court's task is to determine if the accounts are subject to the Vienna Convention on Consular Relations ("VCCR") or the Vienna Convention on Diplomatic Relations ("VCDR") (collectively, the "Vienna Conventions") and if they are being used exclusively for diplomatic or consular relations.
1. The Third and Fourth Accounts are Property Subject to the Vienna Conventions
Under the VCCR and the VCDR, the United States is obligated to respect and protect the premises of the mission and the consular premises, together with the property of the mission, the consular post, and the consular archives. Vienna Conventions on Diplomatic Relations, April 18, 1961, 23 U.S.T. 3227; Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77. In Weinstein v. The Islamic Republic of Iran, another court in this district addressed whether the same Third and Fourth Accounts were "premises of the mission" or "consular premises" in the VCDR and the VCCR respectively. 274 F. Supp. 2d 53, 61 (D.D.C. 2003). Article 1 of the VCDR defines "premises of the mission" as "the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission." VCDR Art 1(i). The VCCR contains a similar definition for "consular premises." VCCR Art. 1(j). The Weinstein court concluded that the Third and Fourth Accounts did not fit within the parameters of this definition. Weinstein, 274 F. Supp. 2d at 61-62. Specifically, the court held that "the only property that the United States is obliged to `respect and protect' under the conventions is `the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for' diplomatic or consular purposes." Id. at 61.
As an initial matter, the plaintiffs argue that Weinstein's holding is "dispositive of this matter and of the motion to quash as a whole." Pl.'s Supplemental Br. at 5. The plaintiffs are mistaken. One district court's holding does not bind another district court. In re Executive Office of the President, 215 F.3d 20, 24 (D.C. Cir. 2000) (noting that "District Court decisions do not establish the law of the circuit, nor, indeed, do they even establish the law of the district") (internal quotations omitted); accord Am. Council of the Blind v. Wash. Metro. Area Transit Auth., 133 F. Supp. 2d 66, 74 n. 2 (D.D.C. 2001).
While the VCDR and VCCR both speak of protecting premises, they both also explicitly require the United States to protect property. VCCR Art. 27 § 1(a); VDCR Art. 45(a). Thus, the court must first determine whether "property" as used in the VDCR and the VCCR includes bank accounts owned by the consular post or consular mission and used for official purposes. Property is defined as "any external thing over which the rights of possession, use and enjoyment are exercised." Black's Law Dictionary 1252 (8th ed. 2004). The "consular post" includes "any consulate-general, consulate, vice-consulate or consular agency." VCCR, Art. 1(1)(a). The United States submitted as evidence letters from the Treasury Department authorizing the Bank to process transactions for the Third and Fourth Accounts by the "Consolate General" for his "lawful official operations." Gov't's Mot. To Quash, Attach. 1, Ex. 6, 7. The plaintiffs do not contest the fact that the bank accounts are owned by the Consulate General of Iran. Therefore, the Court concludes that because the Third and Fourth Accounts are owned by the Consulate General of Iran who had the right to use them for official business, the Third and Fourth Accounts constitute "property of the consular post" and are to be protected by the United States under the VCCR.
The VDCR provides that "[i]f diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled[,] the receiving State must . . . respect and protect the premises of the mission, together with its property and archives[.]" VDCR Art. 45. The VCCR provides that "[i]n the event of the severance of consular relations between two States[,] the receiving State shall . . . respect and protect the consular premises, together with the property of the consular post and the consular archives[.]" VCCR Art. 27.
2. The Third and Fourth Accounts Are Not Being Used Exclusively for Diplomatic or Consular Purposes
The plaintiffs contend that the court should follow the Weinstein court's holding and conclude that the United States did not intend to satisfy its Vienna Convention obligations by continuing to block the Third and Fourth Accounts. Pls' Mot. For Writ of Execution at 3; Resp. in Further Support of Pls.' Motion to Examine Affiant and Other Relief ("Resp. In Further Support of Pls.' Mot. To Examine") at 17. The plaintiffs also request permission to cross-examine the government's affiant regarding alleged "contradictions" in his declaration about the United States' reasons for blocking the accounts. Resp. in Further Support of Pls.' Motion to Examine at 1. According to the plaintiffs, these "contradictions" are the "linchpin" of the United States' argument. Pls.' Mot. To Examine Affiant and Other Relief at 8.In contrast, the government asserts that the Third and Fourth Accounts are being "used" for consular and diplomatic purposes because it is blocking the accounts to comply with obligations to preserve and protect foreign government consular property and to protect claims in the Iran-U.S. Claims tribunal. Gov't's Mot. to Quash Pl.'s Writ of Attach. ("Govt's' Mot. to Quash") at 11-13. The government attaches a declaration from Francis X. Taylor, Assistant Secretary of State for Diplomatic Security, to support its arguments. In response, the plaintiffs filed a motion to examine Assistant Secretary Taylor. The plaintiffs disagree with the proposition that blocking an asset can be considered use of that asset. Pls.' Mot. to Examine Affiant and For Other Relief ("Pls.' Mot. to Examine") at 4. The plaintiffs further assert that the accounts "were and are not blocked for the purpose of furthering the United States' duties under the Vienna Conventions[.]" Id.
The Iran-U.S. Claims Tribunal is a tribunal set up, in part, to hear certain claims of U.S. nationals against Iran, and claims between the two governments. Gov't's Mot. to Quash Pls.' Writ of Attach., Attach. 1 ("Taylor Decl.") ¶ 15.
While the government has admitted that at the time the accounts were first blocked, the purpose of the blocking was not to satisfy obligations under the Vienna Conventions, the plaintiffs fail to establish why this fact is relevant. The TRIA simply states that property subject to the VCDR or VCCR that "is being used exclusively for diplomatic or consular purposes" is not a blocked asset. TRIA § 201(d)(2)(B)(ii). The use provision is couched in present terms, not historical. In other words, nothing in the TRIA requires the government to establish that the property has always been used for diplomatic purposes, it only requires that the property is currently being used for diplomatic purposes. Id. Accordingly, any alleged "contradictions" by the affiant related to when the United States began to assert that the accounts were used to fulfill its obligations under the Vienna Conventions are irrelevant. Rather, the key to this dispute is whether the government is currently using the property for a diplomatic purpose. Therefore, the court denies the plaintiffs' motion to examine affiant and need not address the parties' arguments on whether the court has jurisdiction to order the examination of the government's affiant.
The government's submissions indicate that the Third and Fourth Accounts are simply lying dormant. Gov't's Mot. to Quash at 11 (noting that the accounts are "inactive" because "the signatories on the accounts [have] left the country"). As noted, the government asks to court to conclude that because the government is preventing other parties from depleting the accounts, the accounts are "being used" for diplomatic or consular purposes. Id. The court concludes, however, that adopting the government's construction of the word "use" would distort any reasonable meaning of that term. Accord Weinstein, 274 F. Supp. 2d at 61-62 (holding that the same accounts at issue in the instant case "are not being used for any diplomatic or consular purpose"). The phrase "is being used" suggests that the property is operatively employed for diplomatic or consular purposes, not merely that the person or entity is preventing another from accessing the property. Cf. Bailey v. United States, 516 U.S. 137, 145 (1995) (noting that the "ordinary or natural meaning" of the word "use" "impl[ies] action and implementation").
The government argues that allowing the plaintiffs to execute on the Third and Fourth Accounts would impede its duties under the Vienna Convention and thus interfere with the government's duties to comply with international agreements. Gov't's Mot. to Quash at 11. However, if section 201(d)(2) ((B)(ii) was meant to prevent interference with all property the U.S. is obligated to protect under the Vienna Conventions, Congress could have simply excluded any property subject to the Vienna Conventions from the definition of blocked assets. Instead, Congress specifically provided that to be excluded from the definition of blocked assets, the property must be subject to the Vienna Conventions and must be in use for diplomatic or consular purposes. TRIA § 201(d)(2)(B)(ii). Finally, despite the court's invitation to submit a supplemental brief providing authority for the proposition that refraining from unblocking property constitutes use of the property, the government has been unable to point the court to any specific authority to support its position. Thus, because the Third and Fourth accounts are blocked assets as defined in the TRIA, the court concludes that the plaintiffs' may attach and execute against the Third and Fourth accounts. Consequently, the court grants the plaintiffs' motion for writ of execution.
IV. CONCLUSION
For the foregoing reasons, the court grants the plaintiffs' motion for a writ of execution, denies the plaintiffs' motion for examination of the affiant and denies the government's motion to quash. An order consistent with the Memorandum Opinion is separately and contemporaneously issued this 23rd day of March, 2005.