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Case number 22-7134.

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John Doe's 137, a balance versus Taliban et al.

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Mr. Thornton for the balance.

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Ms.

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Anders for the Apoly International Bank for Reconstruction and Development.

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Mr. Newland for the Apoly International Monetary Fund.

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Good morning, counsel.

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Morning.

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Mr. Thornton, please proceed when you're ready.

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May it please the court.

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I'm going to take a few minutes to set the stage here.

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The appellants in this case are seven victims of Taliban terror attack, and they hold a judgment against the Taliban.

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On August 15, 2021, the Taliban took over Afghanistan.

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And a few things soon made it appear to us that the Ghanishees likely held blocked assets of an instrumentality of the Taliban.

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First, the Taliban had long been blocked by AIPA.

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Then there were a series of news reports in the Wall Street Journal

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New York Times and Washington Post, the first being that the president had frozen Afghan central bank assets.

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Second, that the IMF was set to pay $400 million to the Taliban according to a prior agreement.

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And the third was that the IMF and the World Bank had both frozen the payments to Afghanistan or payments to Afghanistan.

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And this is in the context of the Taliban being a totalitarian state that was taking over all the major institutions in Afghanistan and submitted

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very likely that payments on the scale that these entities operate were going to an instrumentality of the Taliban.

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So we requested, and the DC clerk issued, trio writs of attachment containing interrogatories and attachment, and served them on the garnishes.

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Neither garnishes ever answered those writs, and they didn't file a motion to quash within the response time.

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After the time to reply had passed,

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We moved for a condemnation judgment, and the court set our motion for judgment aside and entertained belated motions from the garnishes arguing that they had absolute immunity.

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Neither garnishes put in any evidence other than a treasury license issued the day after the service of the writ.

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And the district court denied our motion for judgment, quashed the writs, finding that TRIA was not triggered, and so it lacked subject matter jurisdiction.

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And it didn't rule in the claimed immunities.

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or whether TRIA overcame them.

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So the questions now are, should this court affirm the district court's ruling that the garnishes simply don't hold assets of other entities?

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Should it affirm the finding that payments intended for a recipient but not yet received by that recipient are not assets of that entity?

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Alternatively, should it affirm the grounds that the garnishes have absolute immunities that aren't overcome by TRIA?

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And if not, is there something about the owners of the assets, and despite the fact that we don't know who those are, because they didn't answer the interrogatories, that divests the courts of jurisdiction and supports the farmers?

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So I'm going to go through the first two rather quickly.

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The argument that the Garnishes hold no assets of anybody, that finding, well, there was no evidentiary basis at all for that finding.

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And it was belied by references in the papers that the World Bank holds a trust fund in the IMF special drawing rights, which sound a lot like the credits that are referred to in the interrogatories, turning to the second holding that the payments not yet made are not assets of an entity.

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That was gleaned from the UCC's treatment of misfire wire transfers.

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But this isn't a wire transfer case.

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And this court had already limited the application of that doctrine, even in a wire transfer Tria case and the estate of Levin case in 2022.

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But a rule that you can't garnish payments that have not yet been received by the recipient would obliterate an entire category of garnishing payments.

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And that's why there's two questions in the interrogatories.

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Do you hold assets of?

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Are you indebted to the judgment debtor, or in this case, an instrumentality of the judgment debtor?

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And so the court was wrong to find the answers to those interrogatories without any evidence at all and without answers to them.

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So those two holdings should not be affirmed.

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So the third question is, are the Garnishes immunities overcome by TRIA?

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The analysis here is very straightforward.

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The Garnishes put forth that their immunities are provided by provisions of law.

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This is the Articles of Agreement that were prospectively incorporated into US law by the Bretton Woods Agreement Act, the IOIA, International Organization Immunities Act, and Section 1604, the Foreign Sovereign Immunities Act.

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These are clearly provisions of law.

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They predate TRIA.

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And TRIA allows for execution not withstanding any other provision of law.

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So TRIA by its language clearly overcomes their immunities.

[00:05:01] Speaker 07:
It seems like there are many different ways to look at this case and to analyze this case and to resolve this case.

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But the simplest one from my perspective seems to be that under this statute, TRIA, the assets have to be blocked

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which means seized or frozen by the United States under Section 5B of the Trading with the Enemy Act or under Sections 202 and 203 of the International Emergency Economic Powers Act.

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It doesn't seem to me on this record that these assets were blocked in this way, not by the United States under these statutes.

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two things your honor first on this record we don't know the answer to that question because they didn't answer the interrogatories but I would submit that because the Taliban was blocked

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any transaction involving the Taliban.

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But blocked by the World Bank internally, they chose not to.

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Blocked by the operation of IEPA.

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Assets are blocked by operation of law, regardless of whether an entity actually freezes them, and they did freeze them.

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So the President of the United States has the power somewhere to block the World Bank, the assets that the World Bank holds?

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No, but he blocked the transactions with the Taliban.

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No, I understand.

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But does he have any authority to block the World Bank and its distribution of its assets?

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Well, the World Bank is an institution in the United States.

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And the president did block.

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Does it answer to the president of the United States?

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Does the president's authority include

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the ability to block assets in the control?

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It does, Your Honor, I believe.

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And I believe that was shown by the license that was subsequently issued to specifically authorize the World Bank and the UN institutions to make these transfers.

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They aren't excused from the sanctions regulations by the fact of their immunities.

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The fact that their immunities are overcome.

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What's your response to the argument that you, when you argue that the interrogatory should have been answered or there should have been more factual development, that you forfeited or waived these arguments by saying that we don't need any additional discovery, we don't need the interrogatories, that the record as it is was sufficient for you to prevail in the court below?

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We did not forfeit the answers to the interrogatories in the court below.

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But you didn't request that they be answered before the court ruled?

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Well, certainly, by sending them out, you don't have to follow up with the second request.

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Those are pending interrogatories.

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But there are citations to, I guess, the position that you took in the court below that the court could rule based on the record as it was, that you didn't need anything more.

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Well, the record as it was at the time was they had failed to answer the interrogatories.

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So if the court can rule that they did not answer the interrogatories, they can't rule what those interrogatories are based upon presumptions about what they are.

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We're not forfeiting the right to get our answers to our interrogatories.

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I don't think anything in the record supports the idea that we forfeit our right to get the answers to the interrogatories.

[00:08:35] Speaker 07:
Well, do you have a right to get the answers to the interrogatories if

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the World Bank and the IMF were not properly served?

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If they weren't properly served, they would need to come to court to establish- Correct, but they have no obligation to answer or to answer your interrogatories until they're served.

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And leaving papers at the feet of a security guard is not proper service under the DC law that you're relying on to assert rights to garnishment.

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The Novak case held that international organizations simply create their own immunities by refusing service.

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But if you oppose service, you didn't go to the proper parties, people who were entitled

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or authorized to accept service, security guards at these people's office buildings are not authorized to accept service.

[00:09:31] Speaker 02:
Right, but they put security guards and don't allow you into the office to get to the proper parties, then you have to do it that way.

[00:09:37] Speaker 07:
Oh, no, no, no.

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There are many ways to affect service, not at the office buildings.

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I sat in the Superior Court, so I know this.

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You can stake out the home of the president of the World Bank, but you don't just top papers at the foot of a security guard at the office building.

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Well, the Foreign Servant Sovereign Immunities Act has provisions for how one serves their foreign governments.

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And we know that these international organizations have the same protections under the FSI as a foreign nation.

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It spells out sort of three different ways to serve a foreign nation.

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Did you undertake any of those forms of service?

[00:10:16] Speaker 02:
Your Honor, Section 1608 concerns service upon a foreign state and

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These entities are not a foreign state, although they are generally important.

[00:10:25] Speaker 08:
The International Organizations Immunities Act gives them that same protection.

[00:10:28] Speaker 02:
Correct, but that doesn't.

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That service of process.

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But that does not extend to Section 1608, as was held.

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The new authority for that.

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Rodriguez v. PNM Health Organization, which went through the fact that the 1608 talks about procedures of finding the foreign minister going to the embassy, none of which apply here.

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because they don't have a foreign.

[00:10:50] Speaker 08:
Sorry, that case held that under the International Organization Immunities Act, these foreign organizations or these international organizations are not entitled to the service protections of the FSA?

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That they're not granted the same service under section 1608, that rule for service applies.

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these organizations.

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Yes.

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But their own articles of agreement say that they are immune from process.

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Their own articles of agreement are provisions of law that TRIA overcomes.

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If I can get back to that,

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that they argue that their abrogation of immunity only applies to execution immunities.

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Patria's language doesn't accept jurisdiction immunities.

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And in fact... It doesn't have to be.

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I understand the...

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conceptual flow of your argument that statute starts with not notwithstanding any other proof of law.

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These are other provisions of law.

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Ergo, nothing else matters, including jurisdictional immunity.

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I get that.

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But then it's also the case that there's decisions from the Supreme Court and elsewhere that have that construe statutes that are similarly structured that begin with and notwithstanding any other

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name it.

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And it's read in context to say that it actually doesn't mean notwithstanding any other provision of law, period, no matter what.

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It's just a reference.

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And what you do is you go down to look at what the meat of the provision talks about.

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And you ask whether that meat of the provision is in conflict with something.

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And if you look at the meat of this provision, it's not talking about jurisdictional immunity.

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It's talking about immunity from execution and attachment.

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And so that's the counter argument.

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And there's some force to it that

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That's what this is about.

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That's what this is about overcoming.

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It's not about overcoming everything in the world.

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It's about overcoming that subset of stuff that this provision is treating with.

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And the set of stuff that the provision is treating with relates to execution and attachment, not jurisdictional.

[00:12:56] Speaker 02:
Your Honor, first, I would look to the Supreme Court's statement that this particular notwithstanding clause is a blanket abrogation of immunity.

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This court in Greenbaum,

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faced the government in the position of the garnashee.

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And the government was asserting that there was no jurisdictional immunity over it.

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And it had to be had in that case because the government was the garnashee.

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And this court found in other grounds that it didn't have those immunities because they weren't expressed in the provision of law.

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But here the immunities clearly are.

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And I would also add to that that

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As far as the scope goes, it doesn't extend to elements that don't actually conflict.

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For example, there's a Stancell case out of the 11th circuit where they

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procedures of that court didn't conflict in that they didn't actually deny the substantive right.

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You just had to follow those procedures.

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And if you did, then you could still collect.

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And so it didn't conflict.

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Same thing with the other cases that this court cited in Greenbaum, for example, the Holy Land case.

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The abrogation did not extend all the way to assets that were already unblocked because they were taken out

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of the purvey of the statute.

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And they also referred to the Allahi case where there were provisions in the same statute that aren't overridden because it's any other provision of law.

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But here we have a immunity that directly conflicts with our substantive right to collect.

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And so TRIA overcomes it just as it overcomes

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section 1609 and 1611.

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I would submit that it's a pretty strange reading to say that TRIA overcomes 1609 and 1611, but not 1604.

[00:15:03] Speaker 02:
It's just not hinted at anywhere in TRIA.

[00:15:07] Speaker 08:
Why isn't the fact of the Foreign Sovereign Immunities Act, as you just said,

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separately addresses subject matter jurisdiction, the sovereign immunity of the foreign entity, foreign nation.

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And we know that also applies to international organizations.

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And then 1609 to 611 deal with execution immunity as a separate matter.

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So the structure of the FSIA seems to recognize that there are two different layers of immunity.

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The first threshold, one being

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Is there a waiver of sovereign immunity that gives the court subject matter jurisdiction over this foreign defendant?

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And the second being, okay, if you win your case, can you engage in execution?

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Sorry, what was that last part?

[00:15:54] Speaker 08:
The second is if you prevail on your case, do you have the right to execute against assets?

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That's what 1609 to 1611 are dealing with is the execution.

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aspect of a proceeding.

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But that comes long after we've established subject matter jurisdiction and a waiver of sovereign immunity that allows the court to do the case at all.

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And given that foreign sovereign immunities act itself seems to treat them as two different kinds of immunity.

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And the TRIA is only speaking to execution immunity.

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then it seems to me the separateness of 1604 in fact cuts against you here that Congress was not abrogating foreign sovereign immunity.

[00:16:42] Speaker 02:
Section, I'm sorry, the TRIA is, it doesn't say not withstanding any other provision of law except for jurisdiction immunities.

[00:16:55] Speaker 02:
It does say except for some other things, but it doesn't make that exception.

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And the Supreme Court has been very clear that it's a blanket abrogation and that to read things into the statutes concerning immunities is not the court's role.

[00:17:10] Speaker 08:
Well, the Supreme Court read that same notwithstanding clause as referring to the president's exercise of waivers of execution immunity in the past.

[00:17:20] Speaker 02:
But if they wanted to make a finite list of what provisions of law wouldn't and wouldn't be overcome, Congress could have done that and it didn't.

[00:17:30] Speaker 08:
The statute- But Greenbaum also said that the way we read a notwithstanding, we don't start with a notwithstanding clause.

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We start after that and we say, what does this provision cover?

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And TRI speaks only about execution and authority to execute.

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It doesn't grant jurisdiction.

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It says nothing about jurisdiction.

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It simply speaks about the authority

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to execute against assets.

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And so then we ask, well, the purpose of the notwithstanding clause, does that conflict, does applying 1604 conflict with this execution authority?

[00:18:06] Speaker 08:
And it doesn't for the reasons you said, because you said it's 1609 and 1611 that are dealing with execution.

[00:18:13] Speaker 08:
So if someone tried to start 1609, they'd have the conflict, right?

[00:18:17] Speaker 08:
That the notwithstanding clause would overcome.

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But 1604 is just a different type of immunity altogether.

[00:18:23] Speaker 02:
It is a different type of immunity, but it's also overcome and it also conflicts.

[00:18:27] Speaker 08:
Well, it creates jurisdiction in the court, right?

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Execution immunity is not jurisdictional.

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But 1604 is.

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So they're dealing with totally different matters, aren't they?

[00:18:40] Speaker 02:
When you look at what TREA overcomes, there's no hint in the language that it doesn't overcome jurisdiction immunities.

[00:18:46] Speaker 02:
And going back to the Weinstein case in the southern.

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I'm sorry.

[00:18:51] Speaker 08:
There's hint in the language of what that it overcomes jurisdiction.

[00:18:54] Speaker 08:
Is that what you said?

[00:18:56] Speaker 08:
I'm sorry.

[00:18:56] Speaker 08:
I think you might hear.

[00:18:58] Speaker 02:
Your Honor.

[00:18:59] Speaker 02:
There's nothing in the language of TRIA that would implicate that it does not overcome jurisdiction immunity.

[00:19:06] Speaker 08:
To overcome a jurisdictional immunity, you have to talk about jurisdiction or immunity.

[00:19:13] Speaker 08:
And it doesn't talk about that.

[00:19:15] Speaker 02:
What they talk about is any other provision of law.

[00:19:18] Speaker 02:
So then the question comes, does it conflict?

[00:19:21] Speaker 02:
And here, if Section 6104 didn't exist, we would have Section 1330 allowing for jurisdiction.

[00:19:29] Speaker 02:
And we would have entities subject to the court's jurisdiction but for this conflicting provision of law that allows them immunities.

[00:19:38] Speaker 02:
Just like if we are going after assets that are held by an entity that has an execution immunity only, it would overcome that.

[00:19:47] Speaker 02:
The fact that it's a jurisdictional immunity that's overcome is really of no moment.

[00:19:52] Speaker 08:
What is your best case that says a provision that does not address jurisdiction?

[00:19:57] Speaker 08:
or does not address sovereign immunity clearly can still

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be read to create a jurisdiction that would not otherwise exist?

[00:20:09] Speaker 02:
Your Honor, I would allege that, or I would state that there's, what you're referring to is essentially what appears to be a gap in the immunity that Congress didn't account for when it drafted these statutes concerning immunity.

[00:20:25] Speaker 02:
And in NMLV Argentina, it was a similar situation.

[00:20:28] Speaker 02:
There was no immunity for discovery clearing houses

[00:20:33] Speaker 02:
that Argentina was being subjected to.

[00:20:36] Speaker 02:
And the court asked the question, could the 1976 Congress that drafted the Foreign Cybernetic Immunities Act really not meant to correct foreign states from post-judgment discovery clearinghouses?

[00:20:49] Speaker 02:
So that was a case where the jurisdiction to force Argentina to reply to discovery was at issue.

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And it appeared not to have been protected.

[00:21:01] Speaker 02:
And the court said the riddle is not ours to solve.

[00:21:04] Speaker 02:
And then- Let me try this a different way.

[00:21:05] Speaker 07:
I'm going to read to you from Greenbound.

[00:21:09] Speaker 07:
We said in Greenbound, the TRIA does not expressly mention the United States, its sovereign immunity, or its susceptibility to suit under the statute.

[00:21:18] Speaker 07:
Because the TRIA has nothing expressed to say about federal sovereign immunity, the notwithstanding clause cannot aid the appellants.

[00:21:26] Speaker 07:
Why doesn't that exact same analysis apply to the argument you're making?

[00:21:31] Speaker 02:
Your honor, that was to deal with the backup position that they had come in with in that case.

[00:21:37] Speaker 07:
No, but they're interpreting the notwithstanding clause and they're

[00:21:42] Speaker 07:
analyzing it the way my colleagues have presented it to you, and then they expressly say, because the TRIA has nothing expressed to say about this, the notwithstanding clause cannot aid the appellants.

[00:21:53] Speaker 07:
I think that that

[00:21:54] Speaker 07:
applies to your argument.

[00:21:56] Speaker 02:
Well, in that case, there were two things going on.

[00:22:01] Speaker 02:
First, the question was, did TRIA override because it is a notwithstanding clause, did it overcome the immunities of the government?

[00:22:11] Speaker 02:
Right?

[00:22:12] Speaker 02:
And so that was the first question.

[00:22:14] Speaker 07:
Right.

[00:22:14] Speaker 07:
So just substitute the use of the United States government to foreign sovereign immunities.

[00:22:20] Speaker 07:
It's the same analogy.

[00:22:21] Speaker 02:
If I may, Your Honor.

[00:22:22] Speaker 02:
As to that question,

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does TRIA stand alone, overcome sovereign immunities?

[00:22:29] Speaker 02:
The answer had to be no, because they were not expressed in a provision of law, okay?

[00:22:37] Speaker 02:
So that no had already been decided by the court.

[00:22:42] Speaker 02:
Here, the answer to that is yes.

[00:22:45] Speaker 02:
And so the case is over.

[00:22:46] Speaker 08:
I'm not sure that's accurate, because Greenbaum went on to say that in fact,

[00:22:50] Speaker 08:
federal government sovereign immunity is part of the Constitution, separation of powers, and the Constitution is just definitely a provision of law.

[00:23:00] Speaker 08:
Your Honor, the holding though was that it wasn't... I think we went on to say in that opinion, quite specifically, in addition, the separation of powers is a source of federal sovereign immunity, and that is the Constitution, that's part of the Constitution.

[00:23:15] Speaker 02:
But the holding was that none of these are clearly provisions of law that were clearly qualified as the type of provision of law that isn't overcome.

[00:23:31] Speaker 02:
So that was my reading, Your Honor.

[00:23:34] Speaker 02:
But as far as Judge Penn's point, when you get to the second question, which is we're no longer dealing with the notwithstanding clause.

[00:23:44] Speaker 02:
We're dealing with, is there something else here that's allowing you to overcome the immunities?

[00:23:50] Speaker 02:
And there wasn't anything else there, because it wasn't obvious that it had to do with the sovereign immunity of the United States.

[00:23:58] Speaker 02:
But that doesn't mean, Your Honor, that when Congress writes notwithstanding any other provision of law, that it's only limited.

[00:24:08] Speaker 02:
It's just the opposite.

[00:24:10] Speaker 02:
It's not limited.

[00:24:12] Speaker 08:
The rule is, generally, unless you know of an exception,

[00:24:19] Speaker 08:
that statutory language taking away sovereign immunity, whether it's the US or a foreign government or even a state, that statutory language will not be read to strip away immunity unless it's clear.

[00:24:38] Speaker 08:
And you would certainly say if someone said, wait, I've got execution immunity, you would go, no, here is a statute that could not be clearer about taking away your immunity from execution.

[00:24:50] Speaker 08:
Congress was quite clear it's taking away, at least for certain folks, in certain circumstances, immunity from execution.

[00:24:58] Speaker 08:
But what language, if there's a separate immunity, 1604, it's a separate from 1609 to 11, what is the only language you can point me to in TRIA that clearly, unambiguously takes away their sovereign immunity from suit

[00:25:21] Speaker 08:
Is it the notwithstanding clause, or is there something else in that statute that you think provides the type of clarity that courts demand?

[00:25:30] Speaker 08:
Because I understand your arguments, but courts have to be very careful in this area because of its diplomatic and foreign relations consequences.

[00:25:40] Speaker 08:
So is there language that gives me the clarity other than the notwithstanding clause, or we have to decide that notwithstanding clause is sufficient?

[00:25:48] Speaker 02:
Your Honor,

[00:25:50] Speaker 02:
It is the strength of this notwithstanding clause, which has been held to extend everywhere, which has been held by the Supreme Court to be a blanket abrogation of immunity

[00:26:04] Speaker 02:
but within a narrow sphere.

[00:26:10] Speaker 02:
The narrow sphere is blocked assets.

[00:26:16] Speaker 02:
That's the narrow sphere.

[00:26:18] Speaker 02:
So it's not a reckless statute at all.

[00:26:20] Speaker 02:
It was a very calculated statute that it's going to overcome

[00:26:26] Speaker 02:
any provision of law that conflicts with it.

[00:26:30] Speaker 02:
No distinction between jurisdiction.

[00:26:32] Speaker 08:
Is immunity from suit an issue in this before the Supreme Court?

[00:26:36] Speaker 02:
No, but it's in Rubin, what was at issue was the rights to execute against certain assets of Iran that weren't blocked assets, right?

[00:26:52] Speaker 02:
Right.

[00:26:54] Speaker 02:
The point is, though, that when Tria was passed, Congress struck the balance.

[00:26:58] Speaker 02:
They don't need any new balancing done.

[00:27:01] Speaker 02:
They struck the balance.

[00:27:03] Speaker 02:
Any conflicting provision, no distinction between execution and jurisdiction immunities.

[00:27:09] Speaker 08:
And if it's a narrow and we are told to read it as a narrow.

[00:27:14] Speaker 08:
abrogation of immunity, wouldn't using the notwithstanding clause to make it a great big abrogation of immunity.

[00:27:22] Speaker 02:
Your honor, it's to be read as a blanket, great big abrogation of immunity to a narrow class of assets.

[00:27:29] Speaker 02:
And the narrow class of assets are blocked assets.

[00:27:32] Speaker 02:
And that's why it's so broad.

[00:27:33] Speaker 02:
That's why the notwithstanding part is so broad because the class of assets is so narrow.

[00:27:40] Speaker 02:
And we're not here, Your Honor.

[00:27:42] Speaker 02:
We're forbidden from thinking about the policy implications of this.

[00:27:46] Speaker 02:
In MLV Argentina, they said, do what the statute says.

[00:27:51] Speaker 02:
Don't consider the outcome.

[00:27:53] Speaker 02:
Don't consider the gaps.

[00:27:54] Speaker 02:
And I would submit that if we're thinking there's a gap here about

[00:27:59] Speaker 02:
execution or jurisdictional immunities that you're considering a gap that the Supreme Court has forbidden you from from from considering and that in hulk bank just more recently it said it again this this was this was a a an immunity gap that would allow for criminal prosecution of a sovereign

[00:28:19] Speaker 02:
And the court said, look, you've got to let the chips fall where they may.

[00:28:23] Speaker 02:
And that's what I asked the court to do.

[00:28:24] Speaker 02:
Let the chips fall where they may here.

[00:28:26] Speaker 02:
Apply the laws it's written.

[00:28:27] Speaker 02:
The laws it's written does not say that notwithstanding any other provision of law other than jurisdiction immunities in its scope is defined by the assets that it applies to, the type of judgment that you hold, and the type of assets that it applies to.

[00:28:45] Speaker 02:
And I submit that that's the proper reading.

[00:28:49] Speaker 03:
If my colleagues don't have additional questions at this time, we'll give you a little time for rebuttal.

[00:28:58] Speaker 04:
Thank you.

[00:28:58] Speaker 04:
Sanders.

[00:28:59] Speaker 06:
Hey, police the court.

[00:29:00] Speaker 06:
I'm Ginger Anders for the World Bank.

[00:29:02] Speaker 06:
I'd like to start with the Greenbaum case that this court was just discussing.

[00:29:05] Speaker 06:
I do think that while my friend on the other side is right, that part of what Greenbaum was doing was talking about whether the notwithstanding clause applied to immunity that didn't come from a statutory source.

[00:29:16] Speaker 06:
The court then went on to talk about TRIA as a whole and went on to construe TRIA and determine whether it would supersede immunities that do not conflict with TRIA's operative clause.

[00:29:27] Speaker 06:
And so I think what the court said there really all but determines the result in this case and compels a firmance.

[00:29:33] Speaker 06:
And so what the court said was that the notwithstanding clause supersedes only those provisions that actually conflict with TRIA's operative clause.

[00:29:40] Speaker 06:
And that operative clause pertains to execution against terrorist parties.

[00:29:45] Speaker 06:
So I think that reasoning is exactly applicable here.

[00:29:49] Speaker 06:
The bank has jurisdictional immunity pursuant to the IOIA and the FSIA.

[00:29:53] Speaker 06:
TRIA does not say anything about jurisdictional immunity of unrelated third parties like the bank.

[00:29:58] Speaker 06:
They don't have any judgment against them in respect to the underlying terrorist act.

[00:30:03] Speaker 06:
And therefore, TRIA does not proceed that jurisdictional immunity.

[00:30:06] Speaker 06:
I think there the key question would be whether jurisdictional immunity

[00:30:10] Speaker 06:
conflicts with Tria's abrogation of execution immunity.

[00:30:12] Speaker 06:
So as Judge Mallette was discussing, I think it doesn't conflict for exactly those reasons.

[00:30:16] Speaker 06:
That jurisdictional immunity comes from a different source within the FSIA.

[00:30:20] Speaker 06:
It comes from 1604.

[00:30:22] Speaker 06:
It attaches to the state itself or the organization, whereas execution immunity coming from 1609 attaches to the property itself.

[00:30:29] Speaker 06:
The courts have repeatedly held that the two operate independently.

[00:30:32] Speaker 06:
So that you can have an organization or a state entity that is immune from suit, but its property isn't immune from execution.

[00:30:41] Speaker 06:
So for instance, state-owned oil companies, I think are a good example of this, where they might be immune from suit, but all of their property is used for commercial activity.

[00:30:49] Speaker 06:
So we would think of that property as nonimmune from execution.

[00:30:51] Speaker 06:
So you can have that scenario all the time.

[00:30:54] Speaker 06:
And so the two types of immunity do not conflict.

[00:30:56] Speaker 04:
So I think that- Everything you said about the independent nature of jurisdictional immunity versus execution and attachment immunity, does any of that turn on whether the party that's at issue is independent?

[00:31:10] Speaker 04:
Because you layered that in, and the briefing talks about this too, that the World Bank and the IMF don't have anything to do with the terrorist party that they're independent.

[00:31:21] Speaker 04:
But why does anything you said about the independence change

[00:31:26] Speaker 04:
If you're not talking about a third party, just I'll use the term bystander, even though it's going to be a bonus on contention.

[00:31:34] Speaker 04:
But that's the upshot of your.

[00:31:36] Speaker 06:
Sure, I think you're right.

[00:31:37] Speaker 06:
Legally, independence doesn't make a difference in this case.

[00:31:41] Speaker 06:
The point is that the bank has jurisdictional immunity that hasn't been overcome.

[00:31:44] Speaker 06:
And so I think that's sufficient here.

[00:31:46] Speaker 06:
There are situations where you have an agency or instrumentality of a state sponsor of terrorism that really does allow the underlying 1605A judgment to essentially be applied against agency or instrumentality.

[00:31:59] Speaker 06:
I think that's what I would think of as a situation where

[00:32:03] Speaker 06:
Party that's being attached against is not totally independent because they're part of the same state.

[00:32:07] Speaker 06:
But I think it does not matter in this situation that the bank has nothing to do.

[00:32:12] Speaker 06:
It is certainly true that the bank has nothing to do with the underlying terrorist judgment.

[00:32:17] Speaker 06:
But I don't think it legally matters.

[00:32:19] Speaker 06:
And I do think the court is right to demand clarity, clear evidence that the Congress intended to abrogate international organizations' immunity here.

[00:32:29] Speaker 06:
And if I could just sort of spin that out

[00:32:31] Speaker 06:
Congress granted this immunity in the first place because it wanted it in the executive branch understood that these organizations would be headquartered here and that they would hold central assets in the United States.

[00:32:44] Speaker 06:
These are foreign state assets.

[00:32:45] Speaker 06:
These are assets that are donated by the member countries.

[00:32:48] Speaker 06:
And so, Congress and the Executive knew that these would be attractive targets for execution.

[00:32:53] Speaker 06:
And so, it is precisely suits like this that Congress was trying to prevent when it granted this immunity.

[00:32:59] Speaker 06:
I think if you look at what happened here, it's a good example that the plaintiffs, you know, registered, got the writ of attachment.

[00:33:06] Speaker 06:
They purported to serve it by, you know, leaving it with the security guards.

[00:33:11] Speaker 06:
And then, you know, within two weeks they were moving for final judgment.

[00:33:14] Speaker 06:
of $138 million.

[00:33:15] Speaker 06:
And I think that really demonstrates that these execution procedures, they're very quick.

[00:33:22] Speaker 06:
They take place under state law procedures, and they are incredibly burdensome.

[00:33:25] Speaker 06:
So if it were the case that the bank and other organizations like it had to respond to these types of attachment suits within a week or two of being purportedly served with them, they would not be able to function.

[00:33:38] Speaker 06:
That is exactly the point of the immunity, to protect the assets that are here and protect the bank's ability to use those assets as a cease-fit in furtherance of its humanitarian mission.

[00:33:49] Speaker 04:
Can I ask a question about the

[00:33:54] Speaker 04:
Various ways in which you've layered reasons you could win.

[00:33:58] Speaker 04:
So you have the argument we've just been talking about, which is that TRIA doesn't deal with jurisdiction.

[00:34:04] Speaker 04:
Jurisdictional immunity, it deals with execution and attachment immunity.

[00:34:08] Speaker 04:
Then you have arguments that have also been referenced earlier about whether the case involves, even if TRIA applies, blocked assets of a terrorist party.

[00:34:17] Speaker 04:
is do we have full flexibility to choose among those, or are we required to address the one that you put first because that's jurisdictional and the other ones don't qualify as threshold in the way of form nonconvenience or something that would allow us to address those as the ground on which by hypothesis we'd affirm?

[00:34:40] Speaker 06:
I do think that because the first one goes to subject matter jurisdiction, it does make sense for the court to address that one.

[00:34:45] Speaker 06:
should address that one.

[00:34:46] Speaker 04:
I guess I would.

[00:34:48] Speaker 04:
You might want us to and it might make sense to just as a matter of logic, but I'm just asking as a matter of flexibility because we all know that you don't just because subject matter jurisdiction doesn't mean you have to do it before.

[00:34:59] Speaker 04:
For example, form non-convenience, which is not subject matter jurisdiction, could do form non-convenience first.

[00:35:03] Speaker 04:
So I guess I'm just asking.

[00:35:05] Speaker 04:
Where do the other arguments fit into that framework?

[00:35:08] Speaker 06:
I think they all count as Sinochem threshold arguments.

[00:35:12] Speaker 06:
And that's because the other ones go essentially to whether there's execution immunity, whether TRIA applies and renders these assets subject to execution.

[00:35:20] Speaker 06:
So I think treat them as equal threshold.

[00:35:23] Speaker 06:
I think all of them go to that.

[00:35:24] Speaker 08:
Whether something is a blocked asset is a jurisdictional question.

[00:35:30] Speaker 06:
I think it's a question, no, I don't think it's a jurisdiction, subject matter jurisdiction question.

[00:35:33] Speaker 06:
I do think it goes to the, whether there's execution immunity, right?

[00:35:37] Speaker 06:
Whether Tria abrogated that.

[00:35:38] Speaker 08:
I don't know whether we know whether that's, so do we know whether that's actually an equivalent threshold question or is it that they haven't sort of stated an execution claim?

[00:35:46] Speaker 06:
I can't point to a case that says it's an equivalent threshold question.

[00:35:49] Speaker 06:
I guess I was thinking of it because it's not, it is true that it's not purely jurisdictional in the sense that- We might not be able to do that.

[00:35:56] Speaker 04:
Well, that's what I'm asking for your view on that.

[00:35:57] Speaker 04:
Your view is that blocked assets is on par, is in the same tier of the framework as foreign non-convenience, in that even though it's non-jurisdictional, it's threshold so you can do it before subject matter jurisdiction.

[00:36:12] Speaker 04:
Yes, that's my view on that.

[00:36:14] Speaker 08:
Of course, the court is free to disagree.

[00:36:15] Speaker 08:
Can you explain that to me?

[00:36:16] Speaker 08:
How do I know it's any more threshold than failure to state?

[00:36:20] Speaker 08:
An element just isn't legally alleged as a failure to state.

[00:36:25] Speaker 08:
It feels to me more like failure to state claim for execution, which is a very threshold in the timeline of litigation, but is not something that courts can do.

[00:36:36] Speaker 06:
I think it is a fine line.

[00:36:38] Speaker 06:
I guess I would say in this context, because the plaintiff has to establish that the assets in question aren't immune from execution.

[00:36:44] Speaker 06:
They aren't entitled to 1609 immunity under the FSIA.

[00:36:48] Speaker 06:
Therefore, that is a similar threshold question.

[00:36:51] Speaker 06:
This doesn't come up that much, right?

[00:36:54] Speaker 06:
Very word.

[00:36:55] Speaker 06:
So jurisdictional-ish enough to be a threshold question?

[00:37:01] Speaker 06:
Yes, I think so.

[00:37:02] Speaker 06:
But I don't think the court has to

[00:37:04] Speaker 06:
Court doesn't have to agree with that in this case.

[00:37:06] Speaker 06:
I do think the subject matter jurisdiction.

[00:37:08] Speaker 04:
I mean, we would have to agree with that if we wanted to resolve it.

[00:37:10] Speaker 06:
If you wanted to resolve it on these other grounds.

[00:37:12] Speaker 04:
I guess so the way you're viewing it is execution immunity, the merits is whether execution can be had.

[00:37:19] Speaker 06:
Right, and then maybe state law.

[00:37:21] Speaker 04:
Right, and then maybe other state law requirements.

[00:37:22] Speaker 04:
Like this case involved DC action.

[00:37:24] Speaker 04:
So the merits is the execution law under the DC

[00:37:29] Speaker 04:
cause of action for execution.

[00:37:31] Speaker 04:
But the question of execution immunity, you view it as, for these purposes, for this typology, you view it as threshold.

[00:37:38] Speaker 06:
I would view it as equally threshold.

[00:37:40] Speaker 06:
This doesn't come up that much, because usually when you're talking about execution, you have a judgment already.

[00:37:44] Speaker 08:
It's way at the end, so it's normal.

[00:37:47] Speaker 06:
Normally there's a judgment.

[00:37:49] Speaker 08:
I get that they have to show it, they have to get out of the FSIA protections, but that feels very weird to me to say that that's a threshold.

[00:37:58] Speaker 07:
Can we think about it this way, which is the bank has jurisdictional immunity, and the claim is that it is abrogated by the TRIA.

[00:38:09] Speaker 07:
So in order to abrogate, you have to meet every element of the TRIA, which would mean you could go with blocked assets because you can't

[00:38:18] Speaker 07:
abrogate unless you meet every element, including, for example, blocked assets.

[00:38:24] Speaker 06:
Yeah.

[00:38:25] Speaker 06:
I do think that would be another way to look at it.

[00:38:27] Speaker 06:
Yes.

[00:38:27] Speaker 07:
And then we can decide just to decide if some blocked assets and look at it that way.

[00:38:31] Speaker 06:
Right.

[00:38:32] Speaker 06:
Now, I do think the other grounds we've sort of put forward first are more straightforward.

[00:38:36] Speaker 06:
They're purely legal grounds.

[00:38:37] Speaker 06:
Although I do think, to your honor's point earlier, that plaintiffs didn't satisfy their burden of showing that there were any blocked assets at issue here.

[00:38:46] Speaker 04:
In the purely legal grounds, that's the question of whether the TRAA reaches jurisdictional immunity as opposed to just execution-attached immunity.

[00:38:56] Speaker 04:
Is there something else that you include in the purely legal one, or is that one?

[00:38:59] Speaker 06:
It's definitely that one.

[00:39:00] Speaker 06:
And then it's the second line argument that the Central Bank of Afghanistan, DAW Afghanistan Bank, cannot be held to be an agency or instrumentality of the Taliban.

[00:39:10] Speaker 06:
So plain as theory under TRIA,

[00:39:13] Speaker 06:
here is not that these assets were ever intended for the Taliban directly.

[00:39:18] Speaker 06:
That's not the allegation here.

[00:39:19] Speaker 06:
It's that they were intended for a Afghanistan bank.

[00:39:23] Speaker 06:
So for TRIA to apply to those assets, plaintiffs need to establish that Afghanistan bank is an agency or instrumentality of the Taliban.

[00:39:31] Speaker 06:
That's the terrorist party under TRIA.

[00:39:33] Speaker 04:
And so that's not a jurisdictional question.

[00:39:36] Speaker 04:
But is it?

[00:39:39] Speaker 06:
Right, the way we've been thinking about it is it goes to execution immunity, yes, whether TRIA applies to these assets.

[00:39:45] Speaker 06:
And I think there, the really key point is that TRIA is limited, its permission for execution is limited to situations in which the executive branch has designated the foreign state a state sponsor of terror.

[00:39:58] Speaker 06:
And I think that's really key, because what that means is that the executive branch has made a foreign policy judgment upfront that particular states should be subject to execution of the TRIA and all of the other US law consequences that follow from that designation.

[00:40:13] Speaker 06:
But the executive has done that upfront.

[00:40:15] Speaker 06:
And so here, what the plaintiffs are saying is the central bank of Afghanistan

[00:40:19] Speaker 06:
which has not been designated a state sponsor of terror, it can essentially be executed against under TRIA because it's an agency or instrumentality of the Taliban.

[00:40:28] Speaker 06:
And we do not think the statute allows that conclusion because to hold that would be to do an end run around TRIA's definitional provision, which says that foreign states are only covered and their agencies and instrumentalities are only covered if they've been designated state sponsors of terrorism.

[00:40:44] Speaker 06:
So essentially that holding would take away from the executive branch the ability

[00:40:48] Speaker 06:
to make that determination upfront, which I think is an incredibly important part of TRIA that Congress put in there on purpose, obviously, because of the foreign relations.

[00:40:56] Speaker 08:
One concern I have with your position is about, you know, you need this upfront waiver of subject matter jurisdiction, the 1604 waiver.

[00:41:08] Speaker 08:
That makes sense if you're proceeding against a foreign state sponsor of terrorism.

[00:41:16] Speaker 08:
But TRA is applying equally to terrorist groups.

[00:41:23] Speaker 08:
And terrorist groups are not going to be qualified state sponsors of terrorism.

[00:41:31] Speaker 08:
And so if you're going to have a judgment

[00:41:34] Speaker 08:
Again, sort of, I don't know that it's 50-50, but we'll say half of what the TRA is meant to apply to is gonna happen in situations where you're never gonna have that upfront waiver of foreign sovereign immunity.

[00:41:49] Speaker 08:
So why would Congress have written the statute to be effectively a dead letter as to half of what is meant to cover?

[00:41:59] Speaker 06:
Well, so I think the way that it operates is that when you have a foreign state sponsor of terrorism, what Tria says is that there has to have been a judgment under 1605A of the FSIA.

[00:42:11] Speaker 06:
And so what that means is that the foreign state has already been held to be not immune to committing terrorist acts.

[00:42:16] Speaker 06:
And so that's what gets us to jurisdiction over foreign state sponsors of terror.

[00:42:21] Speaker 06:
And I think the best way to understand, Rhea, is that what it's doing is it's setting up two exclusive avenues for execution.

[00:42:30] Speaker 06:
One is against foreign states and their agencies.

[00:42:32] Speaker 06:
There has to be a judgment under 1605A that renders the state not immune.

[00:42:36] Speaker 06:
So that's how we get to jurisdiction.

[00:42:38] Speaker 06:
around jurisdictional immunity.

[00:42:40] Speaker 06:
And then the second avenue is against terrorist parties that are not states.

[00:42:44] Speaker 06:
So that preserves, that reading preserves Congress's limitation of the whole provision to state sponsors of terror.

[00:42:50] Speaker 06:
That is the government's view of- Wait, sorry.

[00:42:53] Speaker 08:
I'm confused.

[00:42:54] Speaker 08:
So, because your argument in your brief is that for every execution under TRA, you're going to first have to find a waiver of foreign sovereign immunity upfront.

[00:43:07] Speaker 06:
but not necessarily a waiver, but some ground on which the state is not immune.

[00:43:11] Speaker 06:
And I think TRIA itself says what that ground is going to be.

[00:43:14] Speaker 06:
It says it would be 1605A.

[00:43:15] Speaker 06:
What is that ground going to be against a terrorist group?

[00:43:18] Speaker 06:
So for non-state terrorist groups, it's different.

[00:43:21] Speaker 06:
You don't have to find any sort of waiver of immunity because they're not immune.

[00:43:25] Speaker 06:
They're not immune.

[00:43:26] Speaker 08:
No, I understand you're not going to have to do that to proceed in your liability determination action.

[00:43:31] Speaker 08:
But if you then still have to show under TRIA,

[00:43:36] Speaker 08:
You're going to have to show some waiver of immunity.

[00:43:38] Speaker 08:
I'm assuming that these terrorist groups are going to have lots of assets here in the United States.

[00:43:43] Speaker 08:
So you're going to be proceeding against some foreign entity one way or the other.

[00:43:47] Speaker 08:
And are you ever going to be able to show a waiver of sovereign immunity?

[00:43:52] Speaker 08:
Or how would, can you give me an example of how someone was able to recover under TRA against a foreign terrorist group

[00:44:01] Speaker 08:
whose assets presumably were held by somebody else.

[00:44:04] Speaker 08:
I'm just assuming they don't hold any here that we can execute on.

[00:44:08] Speaker 06:
Right, so I think because there are these two separate avenues of relief under TRIA, you don't ever get to immunity.

[00:44:14] Speaker 06:
So if you're going, if you're attaching directly against the Taliban, let's say, so not a state party.

[00:44:19] Speaker 08:
What we're attaching against the Taliban that would not implicate, that would not involve

[00:44:25] Speaker 06:
if it held assets in Citibank, for instance.

[00:44:27] Speaker 06:
So Citibank is the garneshee.

[00:44:29] Speaker 06:
It doesn't have its own jurisdictional immunity because it's a private party.

[00:44:31] Speaker 06:
This is usually how this arises.

[00:44:33] Speaker 06:
The most common situation would be the US banks hold the assets of terrorists.

[00:44:38] Speaker 08:
I'm just stupid.

[00:44:39] Speaker 08:
I don't know.

[00:44:40] Speaker 06:
Well, they may hold blocked assets.

[00:44:42] Speaker 06:
For instance, if a group that is later sanctioned is transferring money, the electronic funds transfers cases, get at this.

[00:44:54] Speaker 04:
Right, so that's the most.

[00:44:55] Speaker 04:
And then the TRI has effect.

[00:44:57] Speaker 04:
TRIA has effect in that situation.

[00:44:58] Speaker 06:
Right, it has very broad effect, and that's the usual situation.

[00:45:02] Speaker 06:
This is an extraordinarily unusual situation.

[00:45:04] Speaker 06:
I think that goes again to the fact that Congress could not possibly have intended TRIA to abrogate jurisdictional immunity for international populations.

[00:45:14] Speaker 03:
Make sure my colleagues don't have additional questions for you.

[00:45:18] Speaker 03:
Thank you.

[00:45:18] Speaker 03:
Mr. Nolan, we'll hear from you now.

[00:45:25] Speaker 01:
Good morning.

[00:45:26] Speaker 01:
May it please the court, James Newland for the International Monetary Fund.

[00:45:31] Speaker 01:
For the International Monetary Fund, the situation is a bit more streamlined, and that is because the fund's articles immunize it from every form of judicial process except where the fund expressly waives its own immunity.

[00:45:44] Speaker 01:
In accordance with that plain language, the Supreme Court and this court has consistently recognized the fund's absolute immunity from suit, absent its own express waiver.

[00:45:53] Speaker 01:
That was recognized, of course, in the seminal case of Jam v. IFC, where the court recognized that the fund's immunity isn't tied to the immunity enjoyed by foreign sovereigns.

[00:46:03] Speaker 01:
It's separate under the BWA and where

[00:46:09] Speaker 01:
international organizations agree in their articles of agreement for a higher level of immunity.

[00:46:14] Speaker 01:
That's what they get as opposed to IOIA default FSIA immunity.

[00:46:20] Speaker 01:
And I think that's an important distinction here.

[00:46:23] Speaker 01:
In fact, it's critical to the funds case because the sweep of the funds immunity is broader than the protection afforded by the IOIA.

[00:46:31] Speaker 01:
that was upheld in this court in Yambol, most recently in Saks, where we were before the panel in Saks versus IMF.

[00:46:40] Speaker 01:
And Saks, of course, recognized GM's observation that international organizations' charters can always specify a different level of immunity.

[00:46:50] Speaker 01:
And the funds charter does just that.

[00:46:52] Speaker 01:
The funds immunity were justly invoked shields it not only from the consequences of litigation's results, but also from the burden of defending on the action.

[00:47:02] Speaker 01:
That's Sam Ball.

[00:47:04] Speaker 01:
And in that ball.

[00:47:06] Speaker 07:
Yes, because my understanding of this is that both the IMF and the World Bank have charters that grant them immunity.

[00:47:14] Speaker 07:
But then Congress had to codify that or adopt the terms of the charter.

[00:47:19] Speaker 07:
So Congress doesn't have the authority to, if they wanted to, I'm not saying they did so in this case, grant waivers of immunity.

[00:47:29] Speaker 07:
It hasn't thought about it.

[00:47:30] Speaker 01:
Sure.

[00:47:30] Speaker 01:
Congress can expressly abrogate a treaty, another statute, what have you, but it didn't do so in this case.

[00:47:38] Speaker 07:
No, I understand that.

[00:47:39] Speaker 07:
But you're saying that you're on a different footing from the way, and I'm trying to understand how so.

[00:47:44] Speaker 01:
Yeah, let me just make it a little more clear.

[00:47:47] Speaker 01:
Immunities between the bank and the fund are different.

[00:47:50] Speaker 01:
They're both Bretton Woods entities, if you will.

[00:47:53] Speaker 01:
They came out of the same conference.

[00:47:55] Speaker 01:
But the fund's immunity is absolute.

[00:47:58] Speaker 01:
That's what the members there and all of the members that have joined the International Monetary Fund have agreed to.

[00:48:07] Speaker 04:
that immunity is stark and I can say it so even if the funds immunity is let's just take as a given that the funds immunity is broader just for this you you still benefit from all the arguments that the bank's making you just your position is that you have something extra and I guess in terms of whether you have something extra does that something extra matter as against tria because if the other side is right

[00:48:30] Speaker 04:
that the notwithstanding any other provision of law governs the waterfront.

[00:48:35] Speaker 04:
It's not limited to execution and attachment.

[00:48:37] Speaker 04:
It applies to any provision of law, period.

[00:48:40] Speaker 04:
Then does your argument that you have something extra give you something in the face of that?

[00:48:45] Speaker 01:
for sure, yeah.

[00:48:46] Speaker 01:
Let me explain it this way.

[00:48:47] Speaker 01:
So the funds absolute immunities that are implemented, the entire Bretton Woods agreement, of course, isn't implemented in the legislation.

[00:48:55] Speaker 01:
It's just a section of the articles dealing with immunity.

[00:48:59] Speaker 01:
And that's two through nine.

[00:49:02] Speaker 01:
And that immunity is from judicial process, other legal action, archives, freedom of assets from restrictions, et cetera.

[00:49:12] Speaker 01:
But in this case,

[00:49:13] Speaker 01:
The judicial process immunity is very straightforward and really doesn't leave any opening.

[00:49:19] Speaker 01:
And it says, the fund, its property, and its assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process, except to the extent that it expressly waives its immunity for the purpose of any proceedings or by the terms of any contract.

[00:49:38] Speaker 01:
And so what Jam did was,

[00:49:41] Speaker 01:
Well, let me back up.

[00:49:43] Speaker 01:
Prior to JAM, this court recognized that those dual immunities pre-JAM, when IOIA immunity was tied to the virtually absolute theory of immunity, gave the fund two independent sources to dismiss cases on lack of subject matter jurisdiction.

[00:49:59] Speaker 01:
Then we get to jam and the Supreme Court says that the IOIA immunity is tied to the dynamic interpretation, which means the restrictive theory of foreign sovereign immunity.

[00:50:10] Speaker 01:
They also recognize that that's a default rule and that international organizations can bargain for higher immunity.

[00:50:17] Speaker 01:
And the majority in the dissent said yes, and the IMF is the example of an international organization

[00:50:23] Speaker 01:
that has done just that.

[00:50:24] Speaker 01:
So the IMF's immunities aren't tied at all to what the IOIA might derive from the Foreign Sovereign Immunities Act.

[00:50:34] Speaker 01:
It doesn't really make a difference.

[00:50:36] Speaker 01:
The Bretton Woods Agreement Act immunities from every form of judicial process are a separate enactment.

[00:50:42] Speaker 01:
They're not affected by the immunity of foreign sovereigns.

[00:50:46] Speaker 08:
So if that separate enactment, a provision of law,

[00:50:50] Speaker 01:
It is, yeah.

[00:50:52] Speaker 01:
But TREA only deals with execution immunity.

[00:50:55] Speaker 01:
But even if you construed it to allow to v-shate the jurisdictional immunities of someone under the FSIA, it never carries over to the BWYA, right?

[00:51:09] Speaker 08:
Why?

[00:51:11] Speaker 01:
Because we're not tied to foreign sovereign immunity.

[00:51:13] Speaker 01:
The Foreign Sovereign Immunities Act

[00:51:16] Speaker 01:
It's still a provision of law.

[00:51:20] Speaker 04:
If the other side's argument is right, that TRIA covers every provision of law, then everything you're saying may be true that you have something extra beyond foreign sovereign immunity

[00:51:35] Speaker 04:
as conventionally understood.

[00:51:37] Speaker 04:
But the things that you're still bringing into it are provisions of law, as to which their uberallist argument that every provision of law is governed by TRIA would still seem to govern those.

[00:51:47] Speaker 01:
Right.

[00:51:48] Speaker 01:
But how could the notwithstanding any of the provision of law you may execute fichate jurisdictional immunities that are separate, right?

[00:52:00] Speaker 01:
residing in the individual or the juridical entity, in this case, the fund.

[00:52:04] Speaker 08:
Are you saying, you're not even talking about the U.S.

[00:52:07] Speaker 08:
statute that gave effect to the Bretton Woods agreement, you're saying that the articles of agreement themselves, even if

[00:52:15] Speaker 08:
The Bretton Woods Agreement, the FSIA is overcome by TRIA's notwithstanding clause and the Bretton Woods Agreement enactment, the statutory enactment that Congress did, if that's overridden by the TRIA notwithstanding clause, you say we have number three?

[00:52:32] Speaker 01:
No, the point is this.

[00:52:36] Speaker 01:
If a third party who's not a terrorist, not a state sponsor of terrorists, and not covered by the Foreign Sovereign Immunities Act, right?

[00:52:43] Speaker 01:
The Foreign Sovereign Immunities Act, I mean, our position, and I think it's consistent with the bank, is if you read TRIA, you have to read it in context of the Foreign Sovereign Immunities Act, the notwithstanding languages,

[00:52:55] Speaker 01:
the notwithstanding terms a signal that it's superordinating, but superordinating as to what, right?

[00:53:01] Speaker 08:
It can't mean that you are in the same position as the bank.

[00:53:05] Speaker 08:
I thought you said you were in a different position because of your articles.

[00:53:09] Speaker 08:
We are.

[00:53:10] Speaker 01:
Let me get to that.

[00:53:11] Speaker 01:
So what the notwithstanding other any other provision of law, right?

[00:53:16] Speaker 01:
or people that fall under the Foreign Sovereign Immunities Act would require a separate jurisdictional waiver.

[00:53:25] Speaker 01:
I don't know how, if someone wasn't a state sponsor of terrorism, not an agency or instrumentality of the state or even a terrorist organization, you still have to have a reason to bring them into court, to bring them before the court.

[00:53:42] Speaker 01:
I don't know if it's true or not.

[00:53:44] Speaker 01:
I don't know if it's true or not.

[00:53:47] Speaker 01:
I don't know if it's true or not.

[00:53:50] Speaker 07:
I don't know if it's true or not.

[00:53:52] Speaker 01:
I don't know if it's true or not.

[00:53:54] Speaker 07:
I don't know if it's true or not.

[00:53:57] Speaker 01:
I don't know if it's true or not.

[00:54:01] Speaker 01:
I don't know if it's true or not.

[00:54:03] Speaker 01:
while it is still an IOIA entity, the executive order that implements it as an IOIA entity says, it doesn't abridge any of the immunities under the BWAA, right?

[00:54:16] Speaker 01:
So, and that's what was recognized in JAMA and consistently recognized.

[00:54:20] Speaker 07:
Doesn't it say that about the World Bank as well?

[00:54:22] Speaker 01:
I'm sorry?

[00:54:23] Speaker 07:
Doesn't it also say that we're codifying the immunities for the World Bank?

[00:54:26] Speaker 01:
I'm trying to understand.

[00:54:27] Speaker 01:
Sure, yeah, but the immunities under the articles are different.

[00:54:31] Speaker 01:
Ours is.

[00:54:32] Speaker 07:
So regardless of what the immunities are under the articles, if there is some statutory acceptance of the articles, regardless of what they are.

[00:54:42] Speaker 01:
It's actually codified.

[00:54:44] Speaker 01:
Not the articles, the immunities under the articles.

[00:54:46] Speaker 01:
That's consistently the way it's done.

[00:54:48] Speaker 07:
Fine.

[00:54:49] Speaker 07:
That's great.

[00:54:50] Speaker 07:
I guess what I'm trying to understand is, why is it that if you're relying on this codification, that some different statute, such as TREA,

[00:55:00] Speaker 07:
if it's interpreted this way, can't waive the immunity that was at least the codified version of it.

[00:55:09] Speaker 07:
It can, can it not?

[00:55:10] Speaker 01:
A statute, Congress can act, a statute, the president can sign it and make it law.

[00:55:14] Speaker 01:
It could say, we're revoking the EWA immunity.

[00:55:20] Speaker 04:
Maybe one way they would do that is they would encompass it within any provision of law, which is what this says, because that's a provision of law.

[00:55:26] Speaker 04:
It sounds to me like what you're saying

[00:55:28] Speaker 04:
that notwithstanding any provision of law, you see three readings of that, not two.

[00:55:34] Speaker 04:
One, the two that we've been talking about in the main is

[00:55:37] Speaker 04:
either that it doesn't extend to jurisdictional immunity, but it's talking about execution and attachment immunity commensurate with the rest of the provision, or it covers every other provision of law.

[00:55:51] Speaker 04:
It seems like you're saying, no, there's an intermediate one, which is that when it says notwithstanding any provision of law, it goes beyond execution or attachment immunity, but it governs other FSIA immunity.

[00:56:02] Speaker 04:
But it doesn't reach non-FSIA immunity

[00:56:05] Speaker 04:
even if that non-FSI immunity is a provision of law?

[00:56:08] Speaker 01:
No, that's not what I'm saying.

[00:56:10] Speaker 01:
Oh.

[00:56:10] Speaker 01:
I'm saying, and I'm sorry if I wasn't clear, the notwithstanding language in Latria deal with execution immunity, right?

[00:56:17] Speaker 04:
Well, but I'm, that's the question.

[00:56:19] Speaker 04:
You definitely win if that's true.

[00:56:22] Speaker 04:
And all I'm saying, I guess I think the question that all of us are asking is, let's suppose that's not true.

[00:56:26] Speaker 04:
Let's suppose you lose on that grant.

[00:56:28] Speaker 04:
that the other side is right, that notwithstanding any other provision of law actually isn't cabin to execution or attachment immunity, it addresses all provisions of law, not just provisions of law that relate to execution or attachment immunity, it relates to all provisions of law.

[00:56:42] Speaker 04:
And the question is, if it does, so if you lose on the point that any other provision of law only relates to execution or attachment immunity, why are you better off than the world banker than any other entity?

[00:56:54] Speaker 04:
Because your grounds for saying you're better off are also provisions of law.

[00:57:00] Speaker 01:
Yeah, but how could it be that TRIA could be read?

[00:57:03] Speaker 01:
Remember, TRIA is an execution statute.

[00:57:05] Speaker 01:
We went through that, the notwithstanding language.

[00:57:07] Speaker 01:
We went through Greenbaum.

[00:57:09] Speaker 01:
the latest pronouncement on that from this court.

[00:57:11] Speaker 01:
But in context, how can TRIA possibly waive, for instance, Citibank's due process rights?

[00:57:18] Speaker 01:
It could never be read that, right?

[00:57:20] Speaker 01:
So if it can never be read.

[00:57:23] Speaker 08:
Because no statute can waive the Constitution.

[00:57:25] Speaker 01:
So that's a different point.

[00:57:26] Speaker 01:
Right.

[00:57:26] Speaker 08:
But if your rights are not constitutional, so.

[00:57:31] Speaker 01:
No, but there's the difference.

[00:57:34] Speaker 01:
I don't know how you could have a reading of TRIA that would allow someone to execute on assets held by a third party.

[00:57:47] Speaker 01:
Say it's the Citibank example you have, right?

[00:57:50] Speaker 01:
Or let's use Bank X. They have one branch, California, and somebody gets a judgment here and they want to execute on it here against Bank X, right?

[00:57:59] Speaker 01:
How do you bring Bank X into court here?

[00:58:02] Speaker 01:
You still have to bring them before the court to make them deliver.

[00:58:06] Speaker 01:
It's an impersonal judgment under the PC code.

[00:58:10] Speaker 01:
So how could TRIA be read that broadly?

[00:58:13] Speaker 01:
I don't know how it could, right?

[00:58:15] Speaker 01:
And so if you're in, even if you're in the FSA context, if TRIA is an execution statute, I don't think it vitiates all of the jurisdictional

[00:58:30] Speaker 01:
The jurisdictional points that are preserved, not accepted under TRIA.

[00:58:36] Speaker 01:
I mean, that's the broadest reading, I think.

[00:58:38] Speaker 01:
So if we're not in that FSIA regime, because although we can be, because of the IOIA, our immunity is a broader that's been recognized.

[00:58:48] Speaker 01:
We're not within that regime.

[00:58:50] Speaker 01:
So whatever immunities may flow through or be derived from that scheme wouldn't apply to us because we're like the third party.

[00:58:57] Speaker 01:
Because the BWAA is different.

[00:58:59] Speaker 01:
It doesn't touch the same sphere, right?

[00:59:03] Speaker 08:
I think we have your... I just had one other question because you make a service argument, failure of service argument as well.

[00:59:11] Speaker 08:
Sure.

[00:59:13] Speaker 08:
Would you agree that we could resolve the case on that ground?

[00:59:19] Speaker 08:
We don't have to.

[00:59:20] Speaker 01:
What do you mean?

[00:59:20] Speaker 01:
We're immune from everything.

[00:59:21] Speaker 08:
That's an independent ground that we could decide up front because it also goes to sort of personal jurisdiction over.

[00:59:29] Speaker 01:
Not only weren't we served, but we can't be served, right?

[00:59:31] Speaker 01:
Because we're immune from everything.

[00:59:32] Speaker 08:
I'm just asking whether a service issue could be decided and that would take care of your case.

[00:59:39] Speaker 08:
There's nothing that bars us from deciding.

[00:59:41] Speaker 08:
We have two options on the table.

[00:59:43] Speaker 08:
We have lots of options on the table.

[00:59:44] Speaker 08:
Let's say we have subject matter jurisdiction, sovereign immunity waiver question, and we have the service question.

[00:59:52] Speaker 08:
I assume you would agree, since you raised both of them to us, that you win under either one.

[00:59:58] Speaker 01:
I don't think the court had anything to even address if no one was served, right?

[01:00:04] Speaker 01:
The fund.

[01:00:05] Speaker 08:
Let me try this question again.

[01:00:08] Speaker 08:
We could rule for you on either ground, one or the other.

[01:00:13] Speaker 01:
Sure.

[01:00:14] Speaker 08:
There's nothing that bars us.

[01:00:16] Speaker 01:
There's nothing that bars.

[01:00:17] Speaker 01:
There's nothing that.

[01:00:18] Speaker 08:
A company about jurisdictional ordering would bar us from deciding the service question in your favor rather than the subject matter immunity.

[01:00:27] Speaker 01:
There's nothing that would bar you from doing that.

[01:00:30] Speaker 01:
But our central point is this.

[01:00:32] Speaker 01:
And I hope I've explained it correctly.

[01:00:34] Speaker 01:
But if you go through the brief, you'll see that our position is pretty clear.

[01:00:37] Speaker 01:
And I think it's consistent with the way this court in every case has decided it, right?

[01:00:43] Speaker 01:
The fund has higher levels of immunity under two through nine of the Bretton Woods agreement.

[01:00:48] Speaker 01:
implemented by the Bretton Woods Agreement Act.

[01:00:52] Speaker 01:
And those are the highest levels of immunity you could possibly have, right?

[01:00:56] Speaker 01:
And it's meant to be that way.

[01:00:57] Speaker 01:
We've got sovereigns from 190 different sovereign states with different jurisdictional procedures.

[01:01:04] Speaker 01:
You have to phrase it that broad, that broadly, right?

[01:01:08] Speaker 03:
All right.

[01:01:08] Speaker 03:
Make sure my colleagues don't have additional questions.

[01:01:11] Speaker 03:
Thank you.

[01:01:13] Speaker 03:
Mr. Thornton, we'll give you three minutes for rebuttal.

[01:01:17] Speaker 02:
I only have five points.

[01:01:19] Speaker 02:
First on the question of could service if they weren't served, does that resolve it?

[01:01:27] Speaker 02:
Yes, that would resolve it.

[01:01:28] Speaker 02:
If we didn't properly serve them, it's resolved.

[01:01:31] Speaker 02:
But they had waived the 16 and wait issue by not raising that to the district court.

[01:01:36] Speaker 02:
And I believe that NOVAC instructs that they're not allowed to make their own immunities by stopping the process server.

[01:01:48] Speaker 02:
And to Judge Millett's point about the structure of TRIA, excuse me, that it in fact has two animating types of judgments.

[01:02:03] Speaker 02:
One is against a sovereign, one is against a terrorist entity.

[01:02:07] Speaker 02:
And because of that,

[01:02:10] Speaker 02:
It's set up in such a way that you might have an instance where you have a judgment against a terrorist entity.

[01:02:18] Speaker 02:
And that terrorist entity, because of the fluidity and the range of types of control that occur, gets control of a state agency.

[01:02:29] Speaker 02:
And that's what's happened here.

[01:02:31] Speaker 02:
And I would submit that by having it set up like this, that

[01:02:37] Speaker 02:
The Congress could have foreseen that DAB would be a blocked entity, just as it was in the 90s, just as it is again today, and that you might have a situation where you've got a sovereign entity that's controlled by a terrorist judgment debtor, and that

[01:02:58] Speaker 02:
You don't have an underlying judgment against the sovereign, yet you have tree action against locked assets of that sovereigns agency because it's also your judgment debtors instrumentality.

[01:03:15] Speaker 02:
And this could happen, for example, if you've got a judgment against Hezbollah and Hezbollah's, there's a bank account that belongs to Lebanon and they're sending money to Hezbollah, those assets would get blocked.

[01:03:30] Speaker 02:
And I would submit that the Congress in 2002, the past TRIA would want the victims to collect those assets and express TRIA that way.

[01:03:43] Speaker 02:
As far as the funds, immunities, as was pointed out, they're still based on immunities of law.

[01:03:52] Speaker 02:
And concerning Judge Pan's question of granting of executive waivers that

[01:04:08] Speaker 02:
The point of trio was to overcome the president's ability to do that, except as in subsection B. So it's not withstanding any other provision of law and except as provided in subsection B. So there can be no other way to overcome our judgment.

[01:04:32] Speaker 02:
And then I'd just like to turn to Greenbaum for just a second.

[01:04:36] Speaker 02:
It was the case that the opinion sets out two sections.

[01:04:40] Speaker 02:
One was dealing with the notwithstanding clause.

[01:04:43] Speaker 02:
And it was facing the government in the position of garnashee.

[01:04:49] Speaker 02:
And it looked at whether the notwithstanding clause would overcome its immunity.

[01:04:54] Speaker 02:
And it said no, because its immunities were not based on provision of law.

[01:05:01] Speaker 02:
So if it's an immunity based upon a provision of law, it would have overcome the government's sovereign immunity.

[01:05:07] Speaker 02:
A plaintiff made an argument that the definition aside from the notwithstanding clause, and this is subsection two of the opinion,

[01:05:18] Speaker 02:
Plaintiff argued that the definition of blocked assets sort of inherently implies that we should be able to do this because what's the point of having these blocked assets if we can't collect them?

[01:05:29] Speaker 02:
It was a bad argument, right?

[01:05:32] Speaker 02:
But even concerning that,

[01:05:35] Speaker 02:
This court said that the text was ambiguous, right?

[01:05:39] Speaker 02:
And if it's ambiguous, I would submit that you can't use it then to come back and say that the notwithstanding clause clearly doesn't overcome jurisdictional immunities.

[01:05:55] Speaker 02:
Subsection one says, if it's an immunity expressed in a provision of law,

[01:06:03] Speaker 02:
It's overcome, and you get jurisdiction.

[01:06:05] Speaker 02:
It's not heads I win, tails you lose.

[01:06:07] Speaker 02:
We satisfied section one here.

[01:06:10] Speaker 02:
We win.

[01:06:11] Speaker 02:
That's my read of that.

[01:06:13] Speaker 02:
And finally, to read it another way, I would just instruct that the Supreme Court is

[01:06:21] Speaker 02:
very protective of immunities and abrogations of those immunities, and that the courts are not to fill the gaps in the immunities, and they're not supposed to consider the rate of horribles and the negative consequences.

[01:06:39] Speaker 02:
But here, you know, this is

[01:06:43] Speaker 02:
These assets, and what is a blocked asset?

[01:06:47] Speaker 02:
If these aren't blocked assets, yes, we have no case because these aren't blocked assets.

[01:06:51] Speaker 02:
But we don't have the answer to the interrogators.

[01:06:53] Speaker 02:
And I believe we don't have the answer to the interrogatories.

[01:06:56] Speaker 02:
But if they answer them, the answer would be yes, because it's a blocked asset if it falls under the IEPA prohibition from transfer.

[01:07:04] Speaker 02:
And these were transfers to Taliban-controlled entities, we think.

[01:07:09] Speaker 02:
And so they would have had to have been blocked.

[01:07:10] Speaker 02:
They were frozen.

[01:07:12] Speaker 02:
Now, if you freeze them for some other reason,

[01:07:15] Speaker 02:
That doesn't make them cease to be blocked assets under the prohibition from dealing with entities controlled by the Taliban.

[01:07:22] Speaker 02:
They're still blocked assets.

[01:07:25] Speaker 02:
As to those assets, this court in Levin instructed that the purpose of TRIA is to disrupt terrorist financing.

[01:07:35] Speaker 02:
Here, if they had not frozen those assets, those assets would be sent to either DAB or some other entity in Afghanistan, and we don't know.

[01:07:44] Speaker 02:
So the question of whether that entity has cyber immunity, we don't know what the entity is, okay?

[01:07:49] Speaker 02:
So it can't be decided on that grounds.

[01:07:51] Speaker 02:
because the World Bank admitted that it deals with private entities and funds.

[01:07:56] Speaker 02:
So say there's a construction company in Afghanistan that the Taliban has taken over.

[01:08:03] Speaker 02:
The World Bank freezes a payment to it and blocks it, right?

[01:08:09] Speaker 03:
So... Okay.

[01:08:11] Speaker 03:
I think we have that part of your... Okay.

[01:08:15] Speaker 02:
Okay.

[01:08:16] Speaker 02:
Well, you know, if...

[01:08:19] Speaker 02:
Congress is not doing something reckless here.

[01:08:23] Speaker 02:
It's doing what it wanted to do, which was take those assets and make it so they don't get to those terrorists.

[01:08:30] Speaker 02:
That's the OFAC blocking part.

[01:08:32] Speaker 02:
And then with TRIA, it's to take them out of the equation so that they can never make their way back to those terrorists.

[01:08:39] Speaker 02:
Because that's what happens.

[01:08:41] Speaker 02:
And so that's what we're asking the court to do is enforce the law as it's written, and that it is directed at terrorist financing, and it's directed at who's out of pocket.

[01:08:50] Speaker 02:
And here, who's out of pocket, whatever that entity in Afghanistan that was about to get those payments, and it overlords the Taliban.

[01:09:00] Speaker 02:
And that's what this is about.

[01:09:01] Speaker 03:
Thank you.

[01:09:01] Speaker 03:
Thank you, counsel.

[01:09:02] Speaker 03:
Thank you to all counsel.

[01:09:03] Speaker 03:
We'll take this case under submission.

[01:09:05] Speaker 03:
Thank you.