14‐121‐cv Harrison v. Republic of Sudan

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2015

(Argued: March 11, 2016 Decided: September 22, 2016)

Docket No. 14‐121‐cv

RICK HARRISON, JOHN BUCKLEY, III, MARGARET LOPEZ, ANDY LOPEZ, KEITH LORENSEN, LISA LORENSEN, EDWARD LOVE, ROBERT MCTUREOUS, DAVID MORALES, GINA MORRIS, MARTIN SONGER, JR., SHELLY SONGER, JEREMY STEWART, KESHA STIDHAM, AARON TONEY, ERIC WILLIAMS, CARL WINGATE, TRACEY SMITH, as personal representative of the Estate of Rubin Smith,

Plaintiffs‐Appellees,

v.

REPUBLIC OF SUDAN,

Defendant‐Appellant,

ADVANCED CHEMICAL WORKS, AKA Advanced Commercial and Chemical Works Company Limited, AKA Advanced Training and Chemical Works Company Limited, Accounts & Electronics Equipments, AKA Accounts and Electronics Equipments, et al.,

Defendants,

NATIONAL BANK OF EGYPT, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

Respondents.

ON PETITION FOR REHEARING

Before: LYNCH and CHIN, Circuit Judges, and KORMAN, District Judge.*

The Republic of Sudan petitions for panel rehearing or rehearing en

banc of this Courtʹs decision holding that service of process on the Minister of

Foreign Affairs via the Sudanese Embassy in Washington, D.C., was sufficient to

meet the requirements of the Foreign Sovereign Immunities Act (the ʺFSIAʺ).

The United States, as amicus curiae, supports the Republic of Sudan and seeks

clarification on the issue of whether § 1610(g) of the FSIA overrides the

requirement of a license from the Treasury Departmentʹs Office of Foreign Assets

Control. The petition is DENIED to the extent it seeks panel rehearing.

* The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.

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____________________________

ANDREW C. HALL (Roarke Maxwell, on the brief), Hall, Lamb and Hall, P.A., Miami, Florida, for Plaintiffs‐Appellees.

CHRISTOPHER M. CURRAN (Nicole Erb, Claire A. DeLelle, on the brief), White & Case LLP, Washington, D.C., for Defendant‐Appellant.

DAVID S. JONES, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for the United States of America as Amicus Curiae. ____________________________

CHIN, Circuit Judge:

On September 23, 2015, we affirmed three orders of the United

States District Court for the Southern District of New York (Torres, J.) directing

certain banks to turnover assets of defendant‐appellant Republic of Sudan

(ʺSudanʺ) to satisfy a judgment entered in favor of plaintiffs against Sudan in the

United States District Court for the District of Columbia (the ʺD.C. District

Courtʺ), in the amount of $314,705,896. Sudan petitions for panel rehearing or

rehearing en banc, supported by the United States of America, as amicus curiae.

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After further briefing and argument, upon due consideration, we

adhere to our decision to affirm. The petition is DENIED to the extent it seeks

panel rehearing.

BACKGROUND

The facts and procedural history are set forth in our September 23,

2015 opinion, familiarity with which is assumed. See Harrison v. Republic of

Sudan,

(2d Cir. 2015) (the ʺPanel Opinionʺ). We summarize the

background as follows:

This case arises from the bombing of the U.S.S. Cole in the port of

Aden, Yemen, in 2000. Sailors and spouses of sailors injured in the explosion

brought suit against Sudan in the D.C. District Court under the FSIA,

, 1602 et seq., alleging that al Qaeda was responsible for the attack and that

Sudan had provided material support to al Qaeda.

The action was commenced in October 2010, and, at plaintiffsʹ

request, the Clerk of the D.C. District Court served the summons and complaint

on Sudan in November 2010 by mailing the papers to the Minister of Foreign

Affairs of Sudan via the Sudanese Embassy in Washington, D.C. The papers

were sent via registered mail, return receipt requested to:

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Republic of Sudan Deng Alor Koul Minister of Foreign Affairs Embassy of the Republic of Sudan 2210 Massachusetts Avenue NW Washington, DC 2008

As represented by plaintiffs, Deng Alor Koul was the Minister of Foreign Affairs

of Sudan at the time.

On November 17, 2010, the Clerk of Court entered a Certificate of

Mailing certifying that the summons and complaint were sent via domestic

certified mail to the ʺhead of the ministry of foreign affairs,ʺ via the Sudanese

Embassy in Washington, D.C., and that the return receipt was returned to the

Clerk of Court and received on November 23, 2010. No attempt was made to

serve Sudan by mail to the address of the Ministry of Foreign Affairs in

Khartoum, the capital. Sudan failed to serve an answer or other responsive

pleading within sixty days after plaintiffsʹ service, see

(d), and the

Clerk of Court thus entered a default against Sudan.

On March 30, 2012, after a hearing, the D.C. District Court

(Lamberth, J.) entered a default judgment against Sudan in the amount of

$314,705,896, Harrison v. Republic of Sudan,

(D.D.C. 2012),

and found, inter alia, that service on Sudan had been proper,

. At the

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request of plaintiffs, on April 20, 2012, the Clerk of the Court mailed a copy of the

default judgment by registered mail, return receipt requested, to Sudanʹs

Minister of Foreign Affairs, via the Sudanese Embassy in Washington, D.C.

While it does not appear that the receipt was returned, plaintiffs submitted proof

that the mailing was delivered.

The judgment was thereafter registered in the Southern District of

New York. In December 2013 and January 2014, the Southern District issued

three turnover orders, directing certain banks to turnover assets of Sudan to

plaintiffs. It was only after the last of these three turnover orders was entered

that Sudan finally filed a notice of appearance, on January 13, 2014. The same

day, Sudan appealed the turnover orders to this Court.1

In affirming the turnover orders, we held that service of process on

the Minister of Foreign Affairs via the Sudanese Embassy in Washington, D.C.,

was sufficient to meet the requirements of the FSIA. Harrison,

.

We also held that the District Court did not err in issuing the turnover orders

without first obtaining a license from the Treasury Departmentʹs Office of

1 Nearly a year and a half later, after this appeal had been argued and while the appeal was pending, Sudan made a Rule 60(b) motion in the D.C. District Court to set aside the default judgment. Motion to Vacate Memorandum & Opinion, Harrison v. Republic of Sudan, No. 1:10‐cv‐01689‐RCL (D.D.C. June 14, 2015), ECF No. 55. That court has not yet decided that motion.

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Foreign Assets Control (ʺOFACʺ) or a Statement of Interest from the Department

of Justice.

.

On October 7, 2015, Sudan filed this petition for panel rehearing or

rehearing en banc. Although it had not appeared in the earlier proceedings, the

United States filed an amicus brief in support of the petition on November 6,

2015. After further briefing, we heard argument on March 11, 2016. We now

deny the petition to the extent it seeks panel rehearing.

DISCUSSION

Sudan and the United States argue that the Panel Opinion

misinterprets § 1608(a)(3) of the FSIA and puts the United States in violation of

its obligations under the Vienna Convention on Diplomatic Relations, Apr. 18,

1961, 23 U.S.T. 3227 (entered into force in United States Dec. 13, 1972)

[hereinafter ʺVienna Conventionʺ]. In its reply brief, Sudan also makes the

factual argument that the summons and complaint were not actually delivered to

the embassy. Finally, as to the issue of the requirement of an OFAC license, the

United States argues that the FSIA does not override the requirement of an

OFAC license. We address each of these issues in turn.

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I. Interpretation of § 1608(a)(3)

Sudan and the United States argue that the Panel Opinion

incorrectly interprets § 1608(a)(3) of the FSIA. We acknowledge that the

statutory interpretation question presents a close call, and that the language of

§ 1608(a)(3) is not completely clear. Nonetheless, for the reasons discussed

below, we believe, as a matter of statutory construction, that the better reading of

the statute favors plaintiffsʹ position. Accordingly, we adhere to our prior

decision.

A. The Plain Language

The ʺstarting point in statutory interpretation is the statuteʹs plain

meaning, if it has one.ʺ United States v. Dauray,

(2d Cir. 2000).

Section 1608(a)(3) of the FSIA reads: ʺService in the courts of the United States

and of the States shall be made upon a foreign state or political subdivision of a

foreign state . . . by sending a copy of the summons and complaint and a notice

of suit . . . to be addressed and dispatched by the clerk of the court to the head of

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the ministry of foreign affairs of the foreign state concerned.ʺ

(a)(3).2

On its face, the statute does not specify a location where the papers

are to be sent; it specifies only that the papers are to be addressed and dispatched

to the head of the ministry of foreign affairs. Nothing in § 1608(a)(3) requires

that the papers be mailed to a location in the foreign state, or indeed to any

particular address, and nothing in the statute precluded the method chosen by

plaintiffs. A mailing addressed to the minister of foreign affairs via Sudanʹs

embassy in Washington, D.C., was consistent with the language of the statute

and could reasonably be expected to result in delivery to the intended person.3

2 As we discuss in the Panel Opinion, the FSIA provides for four methods of service. Harrison,

. The method set forth in § 1608(a)(3) is the method at issue in this case. 3 An embassy is a logical place to direct a communication intended to reach a foreign country. As explained by the United States State Department, ʺan embassy is the nerve center for a countryʹs diplomatic affairs within the borders of another nation, serving as the headquarters of the chief of mission, staff and other agencies.ʺ Diplomacy 101, What Is a U.S. Embassy?, http://diplomacy.state.gov/ discoverdiplomacy/diplomacy101/places/170537.htm; see also Rux v. Republic of Sudan, No. Civ.A. 2:04CV428,

, at *16 (E.D. Va. Aug. 26, 2005), affʹd on other grounds,

(4th Cir. 2006) (underscoring the ʺinherent reliability and security associated with diplomatic pouches,ʺ which, ʺunlike the United States Postal Service, DHL, or any other commercial carrier, is accorded heightened protection under international law to ensure safe and uncompromised delivery of documents between countriesʺ (citing Vienna Convention, art. 27)). We do not suggest that service could be made on a minister of foreign affairs via other offices in the United States or another

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Plaintiffs literally complied with the statute ‐‐ they sent a copy of the summons

and complaint addressed to the head of the ministry of foreign affairs of Sudan.

The statute does not specify that the mailing be sent to the head of

the ministry of foreign affairs in the foreign country. If Congress had wanted to

require that the mailing be sent to the minister of foreign affairs at the principal

office of the ministry in the foreign country, it could have said so ‐‐ but it did not.

See Burrage v. United States,

(2014) (ʺThe role of this Court is to

apply the statute as it is written—even if we think some other approach might

ʹaccor[d] with good policy.ʹʺ) (quoting Commissioner v. Lundy,

(1996)); Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,

(1994) (rejecting argument that aiding and abetting liability existed

because Congress did not use words ʺaidʺ and ʺabetʺ in statutory text and noting

that ʺCongress knew how to impose aiding and abetting liability when it chose to

do soʺ). In § 1608(a)(4), for example, Congress specified that the papers be

mailed ʺto the Secretary of State in Washington, District of Columbia, to the

attention of the Director of Special Consular Services,ʺ for transmittal to the

country maintained by the country in question, such as, e.g., a consular office, the countryʹs mission to the United Nations, or a tourism office.

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foreign state ʺthrough diplomatic channels.ʺ

(a)(4) (emphasis

added).

The United States argues that the FSIAʹs service provisions require

strict compliance, and that mailing the papers to ʺthe foreign minister at a place

other than the foreign ministryʺ is not authorized by the statute. Amicus Br. of

the United States at 3. The United States argues that ʺ[t]he most natural

understanding of [the statuteʹs] text is that the mail will be sent to the head of the

ministry of foreign affairs at his or her regular place of work ‐‐ i.e., at the ministry

of foreign affairs in the stateʹs seat of government.ʺ

. This argument is

unpersuasive, as it would require us to read the words ʺat his or her regular

place of workʺ or ʺat the stateʹs seat of governmentʺ into the statute. See Dean v.

United States,

(2009) (courts must ʺordinarily resist reading

words or elements into a statute that do not appear on its faceʺ) (quoting Bates v.

United States,

(1997)).

The United States argues that our reading of § 1608(a)(3) is

undermined by other provisions in the statute. It argues that because the FSIA

permits the use of an authorized agent only in the context of service under §

1608(b)(2) ‐‐ the provision that deals with service on foreign state agencies and

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instrumentalities ‐‐ we should infer that ʺCongress did not intend to allow

service on a foreign state via delivery to any entity that could, by analogy, be

considered the foreign stateʹs officer or agent, including the stateʹs embassy.ʺ

Amicus Br. of the United States at 3. This argument rests on the premise that the

Panel Opinion requires an embassy to act as an agent of a foreign state. We did

not so hold, and, to the extent there is any doubt, we now clarify.

We do not hold that an embassy is an agent for service or a proxy for

service for a foreign state. There is a significant difference between serving

process on an embassy, and mailing papers to a countryʹs foreign ministry via the

embassy. Here, the summons and complaint were addressed to the Sudanese

Minister of Foreign Affairs, by name and title, at the Sudanese Embassy. The

embassy accepted the papers, signing for them and sending back a return receipt

to the Clerk of Court.4 The embassy could have rejected the mailing, but instead

it accepted the papers and then explicitly acknowledged receipt. Accordingly,

the papers were not served on the embassy as a proxy or agent for Sudan, but

they were instead mailed to the Minister of Foreign Affairs, in the most natural

way possible ‐‐ addressed to him, by name, via Sudanʹs embassy.

4 In its reply brief on its petition for rehearing, Sudan argues for the first time in this nearly six‐year old litigation that in fact the embassy did not receive the papers. We discuss this issue below.

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In short, while the language of the statute is not wholly

unambiguous, we believe that the better reading is that it did not require service

on the foreign minister at his or her regular place of work or in the stateʹs seat of

government. Hence, service on the foreign minister via the embassy was not

inconsistent with the wording of the statute.

B. Legislative History

We turn to the legislative history to see whether it sheds light on the

statutory interpretation question

As we noted in the Panel Opinion, while the 1976 House Judiciary

Committee Report makes clear that the statute does not permit service by ʺthe

mailing of a copy of the summons and complaint to a diplomatic mission of the

foreign state,ʺ see H.R. Rep. No. 94–1487, at 26 (1976), as reprinted in 1976

U.S.C.C.A.N. 6604, 6625, it does not address the question of mailing the papers to

the minister of foreign affairs via or care of an embassy. The Report provides,

Special note should be made of two means which are currently in use in attempting to commence litigation against a foreign state. . . . A second means, of questionable validity, involves the mailing of a copy of the summons and complaint to a diplomatic mission of the foreign state. Section 1608 precludes this method so as to avoid questions of inconsistency with section 1 of article 22 of the Vienna Convention on Diplomatic

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Relations, 23 UST 3227, TIAS 7502 (1972), which entered into force in the United States on December 13, 1972. Service on an embassy by mail would be precluded under this bill. See 71 Dept. of State Bull. 458‐59 (1974).

H.R. Rep. 94–1487, at 26.

As we noted in the Panel Opinion, the report fails to make the

distinction at issue in the instant case, between “[s]ervice on an embassy by mail,ʺ

id. (emphasis added), and service on a minister or foreign affairs via or care of an

embassy. The legislative history does not address, any more than does the

statutory text, whether Congress intended to permit the mailing of service to a

foreign minister via an embassy. What it does make clear, however, is that

Congress was concerned about the interaction of this provision and Article 22 of

the Vienna Convention. Accordingly, we must consider the Vienna Convention,

which we discuss below.

C. Judicial Interpretation

Before turning to the Vienna Convention, we consider the case law

on the statutory interpretation issue.

As we noted in the Panel Opinion, we are not alone in our reading of

§ 1608(a)(3). In Wye Oak Technology, Inc. v. Republic of Iraq, the Eastern District of

Virginia held that ʺSection (a)(3) does not impose a requirement that an

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otherwise proper service package must be delivered to a particular destination.ʺ

No. 1:09cv793,

, at *5 (E.D. Va. June 29, 2010), affʹd on other

grounds,

(4th Cir. 2011). There, the court held that service via an

embassy is sufficient to satisfy the FSIA as long as the service is directed to the

Minister of Foreign Affairs.

at *5‐6. The Eastern District of Virginia also so

held in Rux v. Republic of Sudan.

, at *16 (ʺThe text of § 1608(a)(3)

does not prohibit service on the Minister of Foreign Affairs at an embassy

address. Indeed, the statute does not prescribe the place of service, only the

person to whom process must be served.ʺ). It is true, as Sudan argues, that these

were district court opinions, but Sudan has not cited any case, district court or

otherwise, holding that the mailing of papers addressed to the minister of foreign

affairs via an embassy does not comply with the statute.

None of the cases relied on by Sudan or the United States

undermines our reading of § 1608(a)(3). In four of the cases, the plaintiffs served

the papers on the embassy or the ambassador, without addressing them to the

minister of foreign affairs. See Barot v. Embassy of the Republic of Zambia,

, 28‐29 (D.C. Cir. 2015) (service package addressed to embassy); Autotech Techs.

LP v. Integral Research & Dev. Corp.,

(7th Cir. 2007) (no record of

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service but counsel submitted affidavit stating document had been served ʺon

the embassy in Washington, D.C.ʺ); Alberti v. Empresa Nicaraguense De La Carne,

(7th Cir. 1983) (service package addressed to ambassador);

Ellenbogen v. The Canadian Embassy, No. Civ.A. 05‐01553JDB,

, at

*2 (D.D.C. Nov. 9, 2005) (service package addressed to embassy). Consequently,

those plaintiffs did not comply with the statute.

In another case, we interpreted a different provision of the FSIA,

§ 1608(b)(2), and held that persons entitled to diplomatic immunity are not

proper agents for service under the FSIA. Tachiona v. United States,

(2d Cir. 2004) (holding that § 1608(b)(2) does not authorize service on foreign

officials present in United States as agents for a private political party). Tachiona

did not address the issue before us. In two other cases, the opinions do not say

to whom the papers were addressed. See Lucchino v. Foreign Countries of Brazil, S.

Korea, Spain, Mexico, & Argentina,

(E.D. Pa. 1986); 40 D 6262

Realty Corp. v. United Arab Emirates Govʹt,

(S.D.N.Y. 1978).

Section 1608(a)(3) explicitly provides that service on a foreign

sovereign must be ʺaddressed and dispatched by the clerk of the court to the head

of the ministry of foreign affairs of the foreign state concerned.ʺ 28 U.S.C.

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§ 1608(a)(3) (emphasis added). Cases involving mailings not so addressed are

not controlling. We adhere to our conclusion that the plain language of

§ 1608(a)(3) does not foreclose the plaintiffsʹ method of service.

II. The Vienna Convention

Sudan and the United States contend that the Panel Opinion places

the United States in violation of the Vienna Convention. They contend that the

Panel Opinion will complicate international relations by subjecting the United

States (and other countries) to service of process via any of its diplomatic

missions throughout the world, despite its long‐standing policy to refuse such

service. As a preliminary matter, we note that these arguments were not

properly raised in Sudanʹs initial briefs. Nonetheless, we exercise our discretion

to consider the arguments, and we reject them.

The FSIA is the sole basis for obtaining jurisdiction over a foreign

state in the courts of the United States. Argentine Republic v. Amerada Hess

Shipping Corp.,

(1989). As noted above, the ʺlegislative history

of the FSIA demonstrates unequivocally that the Act was not intended to affect

the immunity of ʹdiplomatic or consular representatives,ʹʺ that was established

under the Vienna Convention and customary international law. Tachiona, 386

‐ 17 ‐

F.3d at 222‐23 (quoting H.R. Rep. 94–1487, at 21). ʺUnder the terms of [the

Vienna Convention], the United States, in its role as a receiving state of foreign

missions, is obligated to protect and respect the premises of any foreign mission

located within its sovereign territory.ʺ Bennett v. Islamic Republic of Iran,

(D.D.C. 2009), affʹd,

(D.C. Cir. 2010).

The Panel Opinion does not conflict with the Vienna Convention.

The Vienna Convention provides that ʺ[t]he premises of the mission shall be

inviolable,ʺ and that ʺ[a] diplomatic agent shall . . . enjoy immunity from [the

host stateʹs] civil and administrative jurisdiction.ʺ Vienna Convention, arts. 22,

31; see also H.R. Rep. 94–1487, at 26 (ʺService on an embassy by mail would be

precluded under this bill.ʺ). We acknowledge that these provisions preclude

service of process on an embassy or diplomat as an agent of a foreign

government, as there would be a breach of diplomatic immunity if an envoy

were subjected to compulsory process. See Tachiona,

(noting that

ʺthe inviolability principle precludes service of process on a diplomat as agent of

a foreign governmentʺ); 40 D 6262 Realty Corp., 447 F. Supp. at 712 (holding that

the FSIAʹs legislative history makes clear that service by mail on an embassy is

precluded under the Act). Accordingly, service on an embassy or consular

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official would be improper. But that is not what happened here. Rather, process

was served on the Minister of Foreign Affairs at the foreign mission and not on

the foreign mission itself or the ambassador. The papers were specifically

addressed to the Minister of Foreign Affairs via the embassy, and the embassy

sent back a return receipt acknowledging receipt of the papers.

The United States explains that it ʺconsistently rejects attempted

service via direct delivery to a U.S. embassy abroad. When a foreign court or

litigant purports to serve the United States through an embassy, the embassy

sends a diplomatic note to the foreign government indicating that the United

States does not consider itself to have been served properly.ʺ Amicus Br. of the

United States at 6. Our holding does not affect this policy. We do not preclude

the United States (or any other country) from enforcing a policy of refusing to

accept service via its embassies. We have previously recognized that ʺ[w]ere the

United States to adopt exceptions to the inviolability of foreign missions here, it

would be stripped of its most powerful defense, that is, that international law

precludes the nonconsensual entry of its missions abroad.ʺ 767 Third Ave. Assocs.

v. Permanent Mission of Republic of Zaire to United Nations,

, 300‐01 (2d

Cir. 1993). The United States may continue to instruct its embassies to follow this

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protocol, and so may any other country with a foreign diplomatic embassy.

Nothing about our decision affects the ability of any state to refuse to accept

service via its embassies.

Here, Sudan did not elect to follow any such policy. It did not reject

the service papers, as it could have done easily, but accepted them. In these

circumstances, where plaintiffs mailed the documents addressed to the Sudanese

Minister of Foreign Affairs via the embassy, and the embassy explicitly

acknowledged receipt of the documents, the requirements of the statute were

met.

Significantly, the Vienna Convention provides that a mission may

ʺconsentʺ to entry onto its premises. Section 1 of Article 22 of the Convention

provides that: ʺThe premises of the mission shall be inviolable. The agents of the

receiving State may not enter them, except with the consent of the head of the

mission.ʺ Vienna Convention, art. 22 (emphasis added). Here, the Sudanese

Embassyʹs acceptance of the service package surely constituted ʺconsent.ʺ

Instead of rejecting the service papers, Sudan accepted them and then, instead of

returning them, it explicitly acknowledged receiving them. These actions, we

conclude, constitute consent.

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The Vienna Convention ʺrecognized the independence and

sovereignty of mission premises that existed under customary international law.ʺ

767 Third Ave. Assocs.,

. An important reason for the inviolability

of the embassy premises is that the embassy is, to some degree, an extension of

the sovereignty of the sending state. See United States v. Gatlin,

, 214

n.9 (2d Cir. 2000). To send officers into the embassy to serve papers would thus

be akin to sending officers into the sovereign territory of the sending state itself.

There is nothing offensive, however, about mailing a letter into the sovereign

territory of a foreign state. Indeed, that is the very procedure that Sudan and the

State Department urge is the preferred and required practice. We therefore find

it difficult to understand how mailing a letter to the Foreign Minister of a

country in care of that countryʹs embassy in Washington ‐‐ particularly given that

the embassy remains free to refuse delivery if it so chooses ‐‐ can be considered a

grave insult to the ʺindependence and sovereigntyʺ of the embassyʹs premises.

Indeed, the embassy is extended somewhat less sovereignty than the

actual territory of the sending state. See McKeel v. Islamic Republic of Iran,

(9th Cir. 1983) (ʺA United States embassy, however, remains the territory

of the receiving state, and does not constitute territory of the United States.ʺ); see

‐ 21 ‐

also Jordan J. Paust, Non‐Extraterritoriality of ʹSpecial Territorial Jurisdictionʹ of the

United States: Forgotten History and the Errors of Erdos, 24 YALE J. INTʹL L. 305, 312

(1999) (ʺ[A] U.S. embassy in foreign state territory is not U.S. territory and is not

within the territorial jurisdiction of the United States, any more than a foreign

embassy within the United States is foreign territory or within the territorial

jurisdiction of a foreign state.ʺ). While the precise degree to which the

sovereignty of the embassy is less than a stateʹs control over its own territory is

subject to debate, it is evident that an embassy is not more sovereign than the

territory of the sending state itself.

It is with some reluctance that we diverge from the Executive

Branchʹs interpretation of the Vienna Convention, and of the potential effect of

the Convention on the interpretation of the FSIA. It is appropriate to give the

governmentʹs interpretation of the Vienna Convention ʺgreat weightʺ ‐‐ and we

do ‐‐ but the State Departmentʹs views are ʺnot conclusive.ʺ Sumitomo Shoji Am.,

Inc. v. Avagliano,

(1982). For the reasons stated above, we do not

find those views persuasive.

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III. The Factual Argument

In its reply in support of its petition for rehearing, Sudan argues that

the evidence does not support a finding that the mailing was accepted by Sudan

or delivered to the Sudanese Minister of Foreign Affairs. It argues that the

signatures on the return receipt are illegible and it makes a factual argument that

the package never reached the embassy.

Sudanʹs factual challenge to the service of process comes too late, for

three independent reasons. First, Sudan raises the factual arguments for the first

time on appeal. ʺ[I]t is a well‐established general rule that an appellate court will

not consider an issue raised for the first time on appeal.ʺ In re Nortel Networks

Corp. Sec. Litig.,

(2d Cir. 2008) (quoting Bogle‐Assegai v.

Connecticut,

(2d Cir. 2006)).

Second, the factual challenge to service requires factfinding.

ʺ[F]actfinding is the basic responsibility of district courts, rather than appellate

courts, and . . . the Court of Appeals should not . . . resolve[] in the first instance

[a] factual dispute which ha[s] not been considered by the District Court.ʺ

DeMarco v. United States,

, 450 n.* (1974). The factual challenge

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should have been raised during the five years that the case was pending in the

district courts.

Third, even on appeal, Sudan did not raise the factual challenge

until its reply brief in support of its petition for rehearing. It did not raise the

issue in its briefing of the main appeal or in its initial submission on this petition

for rehearing. See Knipe v. Skinner,

(2d Cir. 1993) (ʺArguments

may not be made for the first time in a reply brief.ʺ).

Accordingly, the factual challenge is not properly before us.

IV. The Requirement of an OFAC License

The United States also seeks to clarify the Panel Opinion with

respect to when a license from OFAC is required. In the Panel Opinion, we held

that the District Court did not err in issuing turnover orders without first

obtaining either an OFAC license or a Statement of Interest from the Department

of Justice. See Harrison, 802 F.3d at 406‐07. This holding was based on the United

Statesʹ position in previous Statements of Interest that § 201(a) of the Terrorism

Risk Insurance Act (ʺTRIAʺ), Pub. L. No. 107–297,

, 2337 (codified at

note), permits a 28 U.S.C. § 1605A judgment holder to attach

assets that have been blocked pursuant to certain economic sanctions laws

‐ 24 ‐

without obtaining an OFAC license. The Panel Opinion included language,

however, that may have suggested that § 1610(g) of the FSIA might permit a

person holding a judgment under § 1605A to attach blocked assets without an

OFAC license. Harrison, 802 F.3d at 407‐08. This is not the case and thus we now

clarify our ruling.

Section 1605 of the FSIA creates exceptions to the general blanket

immunity of foreign states from the jurisdiction of U.S. courts, including the

ʺterrorism exception,ʺ 28 U.S.C. § 1605A, which Congress added to the FSIA in

1996 to ʺgive American Citizens an important economic and financial weapon

against . . . outlaw statesʺ that sponsor terrorism. H.R. Rep. No. 104–383, at 62

(1995). This exception allows courts to hear claims against foreign states

designated by the State Department as ʺstate sponsor[s] of terrorism.ʺ See

Calderon–Cardona v. Bank of N.Y. Mellon,

(2d Cir. 2014).

The TRIA was enacted to aid victims of terrorism in satisfying

judgments against foreign sponsors of terrorism. Section 201(a) of the TRIA,

which governs post‐judgment attachment in some terrorism cases, provides, in

relevant part:

Notwithstanding any other provision of law . . . , in every case in which a person has obtained a judgment against

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a terrorist party on a claim based upon an act of terrorism, or for which a terrorist party is not immune under section 1605A or 1605(a)(7) (as such section was in effect on January 27, 2008) of title 28, United States Code, the blocked assets of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment to the extent of any compensatory damages for which such terrorist party has been adjudged liable.

TRIA § 201(a) (codified at

note) (emphasis added).

Sudanese assets in the United States are subject to such a block,

pursuant to sanctions that began with Executive Order 13067 in 1997 and are

now administered by OFAC and codified at 31 C.F.R. Part 538. Ordinarily,

unless a plaintiff obtains a license from OFAC, he is barred from attaching assets

that are frozen under such sanctions regimes. The Panel Opinion held that,

based on previous statements of interest made by the United States, blocked

assets that are subject to the TRIA may be distributed without a license from

OFAC. Harrison, 802 F.3d 408‐09.

The Panel Opinion framed the issue, however, as ʺwhether § 201(a)

of the TRIA and § 1610(g) of the FSIA, which authorize the execution of § 1605A

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judgments against state sponsors of terrorism, permit a § 1605A judgment holder

to attach blocked Sudanese assets without a license from OFAC. Id. at 407‐08.

The Panel Opinion should not have included the reference to

§ 1610(g) of the FSIA. Section 1610(g)(2) of the FSIA, while providing that certain

property ʺshall not be immune from attachment,ʺ does not contain the TRIAʹs

same broad ʺnotwithstanding any other provision of lawʺ language. Therefore, it

does not override other applicable requirements, such as the requirement of an

OFAC license before the funds may be transferred. To be clear, when the TRIA

does not apply and the funds at issue are attachable by operation of the FSIA

alone, an OFAC license is still required.

In this case, plaintiffs obtained a terrorism judgment from the D.C.

District Court pursuant to § 1605A of the FSIA. The Southern District of New

York then issued three turnover orders. The first two orders specified that they

were issued pursuant to

(g) but did not mention the TRIA. Only

the third order specified that assets were ʺsubject to turnover pursuant to § 201 of

the Terrorism Risk Insurance Act of 2002.ʺ Joint App. at 76. While the district

court did not explicitly discuss whether the funds at issue in the December 12

and 13, 2013 orders were subject to turnover pursuant to the TRIA, based on our

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review of the record, which includes the complaint and judgment in the D.C.

District Court proceedings, and the turnover petition and orders in the

proceedings below, we conclude that the funds were subject to turnover

pursuant to the TRIA. Plaintiffs have ʺobtained a judgment against a terrorist

party on a claim based upon an act of terrorism,ʺ the blocked assets are the assets

of that terrorist party, and, accordingly, those assets ʺshall be subject to execution

or attachment in aid of execution in order to satisfy [plaintiffsʹ] judgment to the

extent of any compensatory damages for which such terrorist party has been

adjudged liable.ʺ See TRIA § 201(a) (codified at

note). Because

the funds at issue in all three turnover orders were subject to turnover pursuant

to the TRIA, plaintiffs were not required to obtain an OFAC license before

seeking distribution.

CONCLUSION

For the foregoing reasons, the petition, to the extent it seeks panel

rehearing, is DENIED.

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