The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 27, 2023 Decided April 26, 2024
No. 22-7134
JOHN DOES 1-7,
APPELLANTS
v.
TALIBAN, ET AL.,
APPELLEES,
INTERNATIONAL MONETARY FUND; INTERNATIONAL BANK
FOR RECONSTRUCTION AND DEVELOPMENT,
GARNISHEE-APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-mc-00110)
John Thornton argued the cause and filed the briefs for
appellants.
Ginger D. Anders argued the cause for garnishee-appellee
International Bank for Reconstruction and Development. With
her on the brief was Sarah E. Wiener.
2
James R. Newland, Jr. argued the cause for garnishee-
appellee International Monetary Fund. With him on the brief
were Kiran Aftab Seldon and Owen R. Wolfe.
Before: SRINIVASAN, Chief Judge, and MILLETT and PAN,
Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: In 2020, seven victims of a 2016
terrorist bombing in Afghanistan obtained multi-million-dollar
default judgments against the Taliban, Al-Qaeda, and the
Haqqani Network. Following the Taliban’s 2021 takeover of
Afghanistan, those seven victims, suing as John Doe plaintiffs
(“John Does”), sought to attach assets presently held by the
International Monetary Fund and the International Bank for
Reconstruction and Development (commonly known as the
“World Bank”). The John Does contend that these assets are
subject to execution because, in their view, they belong to the
Afghan government or the central bank of Afghanistan, and the
Taliban has become the de facto Afghan government and the
Afghan central bank its “instrumentality.”
We cannot address the merits of the John Does’ claims.
Congress has accorded the Fund and the World Bank statutory
immunity from suit in United States courts under the
International Organizations Immunities Act and Foreign
Sovereign Immunities Act. Because our hands are
jurisdictionally tied in this case, we affirm the district court’s
order quashing the John Does’ writs of execution and
dismissing their attachment proceeding.
3
I
A
The Foreign Sovereign Immunities Act (“FSIA”) “confers
on foreign states two kinds of immunity.” Republic of
Argentina v. NML Cap., Ltd., 573 U.S. 134, 142 (2014). First,
it provides that “foreign state[s] shall be immune from the
jurisdiction of the courts of the United States and of the States”
unless their conduct falls within one of the statutorily
enumerated exceptions. 28 U.S.C. § 1604 (emphasis added);
see id. §§ 1605–1607 (enumerating exceptions). We refer to
this type of immunity as “jurisdictional immunity.” Second,
even when jurisdiction over a foreign sovereign is established,
the FSIA separately protects that sovereign’s “property in the
United States * * * from attachment, arrest, and execution,”
except to the extent an exception applies. Id. § 1609; see id.
§§ 1610–1611 (enumerating exceptions). This type of
immunity is often referred to as “execution immunity.”
This distinction between foreign states’ jurisdictional and
execution immunity is grounded in international law. See
RESTATEMENT (FOURTH) OF THE LAW OF FOREIGN RELATIONS
OF THE UNITED STATES § 453(6)(b) (Am. L. Inst. 2018)
(“Under international law * * * a waiver of immunity from suit
does not imply the waiver of immunity from attachment of
property, and a waiver of immunity from attachment of
property does not imply a waiver of immunity from suit.”). 1
1
The prior Restatements are to the same effect, demonstrating the
stability of the distinction over time. See RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW OF THE UNITED STATES § 456(1)(b) (Am.
L. Inst. 1987) (“Under international law * * * a state may waive its
immunity from attachment of its property or from execution against
its property, but a waiver of immunity from suit does not imply a
waiver of immunity from attachment of property, and a waiver of
4
As a result of the FSIA’s dual immunities, parties seeking
judicial enforcement of an award against a foreign state face
two hurdles: They must “establish both that the foreign state is
not immune from suit and that the property to be attached or
executed against is not immune” from execution. TIG Ins. Co.
v. Republic of Argentina, 967 F.3d 778, 781 (D.C. Cir. 2020)
(emphases added).
The World Bank and Fund are, of course, not foreign
states. But because they are presidentially designated
international organizations, the International Organizations
Immunities Act (“IOIA”) affords them the “same immunity
from suit and every form of judicial process as is enjoyed by
foreign governments” under the FSIA. 22 U.S.C. § 288a(b);
see Exec. Order No. 9751, 11 Fed. Reg. 7713 (July 13, 1946)
(designating the World Bank and Fund as protected
“international organizations”). As a result, the World Bank and
Fund enjoy the same immunities subject to the same exceptions
that foreign governments have under the FSIA. See Jam v.
International Fin. Corp., 139 S. Ct. 759, 772 (2019) (The
FSIA’s terms “govern[] the immunity of international
immunity from attachment of property does not imply a waiver of
immunity from suit.”); RESTATEMENT (SECOND) OF FOREIGN
RELATIONS LAW OF THE UNITED STATES § 70(3) (Am. L. Inst. 1965)
(“A waiver of immunity from suit or from a counterclaim does not,
in the absence of a clear indication to the contrary, imply waiver of
immunity from execution.”). The same distinction is reflected in
longstanding caselaw. See, e.g., Flota Maritima Browning de Cuba
v. Motor Vessel Ciudad de la Habana, 335 F.2d 619, 626 (4th Cir.
1964) (“A distinction has been drawn between jurisdictional
immunity and immunity from execution of the property of a
sovereign, and waiver of the former is not necessarily a waiver of the
latter.”); Dexter & Carpenter, Inc. v. Kunglig Jarnvagsstyrelsen, 43
F.2d 705, 708 (2d Cir. 1930) (holding that a waiver of jurisdictional
immunity did not imply a waiver of execution immunity).
5
organizations” under the IOIA.). As relevant here, that means
that the Fund and the World Bank enjoy both jurisdictional and
execution immunity. 2
Against that backdrop, Congress in 2002 passed the
Terrorism Risk Insurance Act (“TRIA”) to make it easier for
those who have obtained valid judgments against terrorists and
their affiliates to actually recover damages. See Pub. L. No.
107-297, 116 Stat. 2322 (Nov. 26, 2002), codified at note
following 28 U.S.C. § 1610. Section 201(a) of the TRIA
provides:
Notwithstanding any other provision of law, * * * in every
case in which a person has obtained a judgment against a
terrorist party on a claim based upon an act of terrorism,
or for which a terrorist party is not immune under section
1605(a)(7) of title 28, * * * 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.
2
The Fund’s and World Bank’s articles of incorporation each
establish additional, distinct immunities that Congress has enforced
by statute. The World Bank’s articles make it immune from lawsuits
“brought by members or persons acting for or deriving claims from
members[.]” Bank Articles, Art. VII § 3; see 22 U.S.C. § 286h
(incorporating the World Bank’s articles into U.S. law). The Fund’s
articles provide that the Fund, “its property, and its assets * * * shall
enjoy immunity from every form of judicial process except to the
extent that [the Fund] expressly waives its immunity for the purpose
of any proceedings or by the terms of any contract.” Fund Articles,
Art. IX § 3; see 22 U.S.C. § 286h (incorporating relevant articles into
U.S. law).
6
28 U.S.C. § 1610 note. 3
B
In January 2016, a suicide bomber detonated a truck
loaded with explosives in a residential compound for
international workers in Kabul, Afghanistan. Compl. ¶¶ 36–
38, John Does v. Taliban, No. 20-cv-00605 (N.D. Tex. Mar.
20, 2020), ECF No. 1. Among those injured by the resulting
blast were the seven John Does, who were working there as
State Department civilian contractors. Compl. ¶¶ 1–7. The
John Does subsequently sued the Taliban, Al-Qaeda, and the
Haqqani Network, and each obtained multi-million-dollar
default judgments that collectively totaled almost $140 million.
Final Default Judgment, John Does v. Taliban, No. 20-cv-
00605 (N.D. Tex. Nov. 5, 2020), ECF No. 22.
In August 2021, the Taliban seized control of Afghanistan
as well as several governmental entities, including the Afghan
central bank. John Does 1 Through 7, No. 21-mc-00110, 2022
WL 4103853, at *1 (D.D.C. Sept. 8, 2022). The John Does
subsequently initiated this post-judgment collection action
against the World Bank and the Fund. They allege that the
World Bank and the Fund hold assets belonging to Afghanistan
or to its central bank. Id. The John Does contend specifically
that the Taliban has become the de facto government of
Afghanistan and its central bank has become an
“instrumentality” of the Taliban, so that any “blocked assets”
belonging to either constitute “the blocked assets of [a] terrorist
3
At the time of the TRIA’s enactment, 28 U.S.C. § 1605(a)(7)
contained the FSIA’s exception to jurisdictional immunity for state
sponsors of terrorism. In 2008, Congress amended and replaced that
provision with a more expansive terrorism exception codified at
28 U.S.C. § 1605A. See National Defense Authorization Act for
Fiscal Year 2008, § 1083, Pub. L. 110-181, 122 Stat. 3, 338–344.
7
party * * * subject to execution” under Section 201(a) of the
TRIA. 28 U.S.C. § 1610 note.
The John Does registered their default judgment with the
United States District Court for the District of Columbia, and
the Clerk of the Court then issued writs of attachment to both
the World Bank and the Fund. John Does 1 Through 7, 2022
WL 4103853, at *1. After trying and failing to serve the World
Bank and Fund in the traditional ways, the John Does’ process
server ultimately left the writs at the feet of security guards at
each entity’s Washington, D.C. office. Id. Following the
World Bank’s and Fund’s refusals to answer interrogatories
appended to those writs, the John Does moved in the district
court for final judgment. Id. The World Bank and Fund
responded and moved to quash the writs on several grounds,
including that they were immune from suit and so not subject
to the district court’s jurisdiction. Id. at *2.
The district court granted the World Bank’s and Fund’s
motions to quash. John Does 1 Through 7, 2022 WL 4103853,
at *4. The court found the TRIA inapplicable in this case. Id.
at *3–4. The court first expressed “serious reason to doubt that
the funds [the John Does sought to recover] belong to
Afghanistan,” which in itself would make the TRIA
inapplicable. Id. at *3. The district court added that, even if
the assets belonged to Afghanistan, it could not “recognize an
ownership claim by the Taliban” to Afghan assets since “[t]he
United States has not recognized the Taliban as the legitimate
government of Afghanistan.” Id. For those reasons, the John
Does failed to “show[] that the assets at issue fall under the
TRIA,” and so they “ha[d] not shown that an exception to the
Fund and the World Bank’s immunity applies[.]” Id. at *4. On
that basis, the district court found that it lacked jurisdiction in
the case and granted the motions to quash. Id.
8
II
The district court held that the TRIA was inapplicable and
that it therefore lacked subject matter jurisdiction. We have
jurisdiction to review the district court’s judgment under 28
U.S.C. § 1291.
We review questions of law de novo, including the district
court’s conclusions about its jurisdiction and the World Bank’s
and Fund’s immunities. Nyambal v. International Monetary
Fund, 772 F.3d 277, 280 (D.C. Cir. 2014). We review factual
findings for clear error. Id.
III
We cannot address the merits of the John Does’ claims
unless we first ensure that we have jurisdiction over the World
Bank and the Fund. Because we conclude that their statutory
immunity remains intact, the district court properly entered
judgment dismissing the case against both entities. See Zuza v.
Office of the High Representative, 857 F.3d 935, 938 (D.C. Cir.
2017) (explaining that properly asserted immunity under the
IOIA “[r]emov[es] judicial power to adjudicate a case [and]
compels its dismissal”).
The starting point under the IOIA and its incorporated
FSIA provisions is that the World Bank and Fund are immune
from suit in the courts of the United States. 22 U.S.C.
§ 288a(b); 28 U.S.C. § 1604; see Jam, 139 S. Ct. at 772. For
the John Does’ action to proceed, then, they must identify some
exception to or abrogation of that immunity. See TIG Ins. Co.,
967 F.3d at 781. The FSIA itself includes varied exceptions to
jurisdictional immunity, including exceptions applicable to
state sponsors of terror. See 28 U.S.C. § 1605A; see also id.
9
§§ 1605–1607. But the John Does do not argue that any of
those exceptions apply in this case.
Instead, the John Does rest their entire jurisdictional case
on Section 201(a) of the TRIA. In the John Does’ view, that
provision gives this court both subject matter jurisdiction over
this action against the World Bank and Fund, and the authority
to execute against any Afghan state assets they currently hold.
By way of reminder, Section 201(a) provides:
Notwithstanding any other provision of law, * * * in every
case in which a person has obtained a judgment against a
terrorist party on a claim based upon an act of terrorism,
or for which a terrorist party is not immune under section
1605(a)(7) of title 28, * * * 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.
28 U.S.C. § 1610 note.
That provision does not speak to the World Bank’s or
Fund’s jurisdictional immunity from suit. Rather, Section
201(a), “[f]rom start to finish,” concerns the rights of persons
who already have in hand valid judgments against terrorist
parties to recover assets in satisfaction of those judgments.
Greenbaum v. Islamic Republic of Iran, 67 F.4th 428, 434
(D.C. Cir. 2023); see Ministry of Def. & Support for the Armed
Forces of the Islamic Republic of Iran v. Elahi, 556 U.S. 366,
374 (2009) (The TRIA “permit[s] a person with a terrorism-
related judgment to attach an asset of the responsible ‘terrorist’
10
state to satisfy the judgment[.]”) (emphasis added); Weinstein
v. Islamic Republic of Iran, 609 F.3d 43, 50 (2d Cir. 2010)
(“The purpose of [Section 201(a)] is to deal comprehensively
with the problem of enforcement of judgments issued to victims
of terrorism in any U.S. court by enabling them to satisfy such
judgments from the frozen assets of terrorist parties.”) (quoting
148 Cong. Rec. S11528 (daily ed. Nov. 19, 2002) (statement of
Sen. Harkin)) (emphases added).
As a result, asset recovery under Section 201(a) can come
only from parties over whom subject matter jurisdiction has
already been established. Said another way, to execute on a
judgment against an entity ordinarily protected by FSIA
immunity, the plaintiff must show both (1) subject matter
jurisdiction over—i.e., an abrogation of immunity for—the
defendant holding the assets, and (2) statutory authority to
execute the judgment against the assets. See TIG Ins. Co., 967
F.3d at 781. Section 201(a) speaks only to the latter. And the
John Does have identified no jurisdictional basis in this case
for the former. 4
4
This case is perhaps unusual in that the parties asserting
immunity—the World Bank and Fund—are not the named
defendants in the underlying suit. Rather, they are third-party
garnishees that, the John Does allege, control assets belonging to the
defendants or their instrumentality. In a typical FSIA or IOIA case
where plaintiffs seek a judgment against a foreign state or
international organization, the plaintiffs would have had to establish
jurisdiction over that state or organization in the underlying suit
before obtaining a judgment. See 22 U.S.C. § 288a(b); 28 U.S.C.
§ 1604. Subsequent garnishment proceedings—say, against a
private bank—often do not pose the new questions of sovereign
immunity that have arisen in this case.
11
A
Nothing in the text of Section 201(a) mentions, let alone
abrogates, foreign sovereign or organizational immunity. The
statute does not employ any “‘clear’ jurisdictional language[,]”
or even mention jurisdiction. Gonzalez v. Thaler, 565 U.S.
134, 142 (2012); cf. id. at 142–143 (requiring a “clear[]
statement” before finding that an exhaustion requirement is
jurisdictional). Nor does it reference “immunity” or any of the
FSIA’s exceptions to sovereign immunity.
Instead, Section 201(a) talks exclusively about post-
judgment execution proceedings. Yet such post-judgment
proceedings necessarily presuppose a valid judgment arising
out of a proper exercise of jurisdiction over the defendant
against whom the judgment was obtained. Cf. Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998) (“The
requirement that jurisdiction be established as a threshold
matter ‘springs from the nature and limits of the judicial power
of the United States’ and is ‘inflexible and without
exception.’”) (formatting modified) (quoting Mansfield, C. &
L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)). Section
201(a) says nothing about creating jurisdiction in the first
instance, whether over the defendants themselves or over third
parties alleged to hold the defendants’ assets.
The absence of any jurisdictional-immunity hook in
Section 201(a) largely closes the door on the John Does’
argument that the statute provides a basis for proceeding in
court against the World Bank and Fund in the first place. That
is because the FSIA, which governs the World Bank’s and
Fund’s immunity from suit, see 22 U.S.C. § 288a(b), provides
that “foreign state[s] shall be immune from the jurisdiction of
the courts of the United States and of the States except as
provided in sections 1605 to 1607” of the FSIA, 28 U.S.C.
12
§ 1604; see id. §§ 1605–1607. Those statutory provisions
comprise the “sole basis for obtaining jurisdiction over” the
World Bank and Fund in United States courts. Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434
(1989) (emphasis added); see Samantar v. Yousuf, 560 U.S.
305, 313–314 (2010) (“[I]f a defendant is a ‘foreign state’
within the meaning of the [FSIA], then the defendant is
immune from jurisdiction unless one of the exceptions in the
[FSIA] applies.”) (emphasis added).
Notably, each of the FSIA’s exceptions to immunity
speaks in explicit jurisdictional terms—enumerating those
circumstances in which “[a] foreign state shall not be immune
from the jurisdiction of courts of the United States or of the
States[.]” 28 U.S.C. §§ 1605(a), 1605A(a)(1) (emphasis
added). Given the FSIA’s comprehensive and explicit
regulation of jurisdiction over foreign sovereigns, we cannot
assume that Congress abrogated these sovereigns’ immunity
from suit through other statutes without mentioning
jurisdiction or their immunity expressly. Cf. Samantar, 560
U.S. at 317 (“Drawing meaning from silence is particularly
inappropriate when Congress has shown that it knows how to
address an issue in express terms.”) (formatting modified)
(quoting Kimbrough v. United States, 552 U.S. 85, 103 (2007)).
At most, Section 201(a) contains one veiled cross-
reference to jurisdiction. But it hurts rather than helps the John
Does. Specifically, Section 201(a) applies “in every case in
which a person has obtained a judgment against a terrorist party
on a claim based upon an act of terrorism, or for which a
terrorist party is not immune” under 28 U.S.C. § 1605A. 28
U.S.C. § 1610 note (emphasis added). For its part, Section
1605A provides that “[a] foreign state shall not be immune
from the jurisdiction of [U.S.] courts” for certain claims based
on acts of terrorism when the state has been designated a state
13
sponsor of terrorism by the Secretary of State. Id.
§ 1605A(a)(1); see id. § 1605A(a)(2). The cross-reference
textually confirms that, while Section 201(a) of the TRIA
applies to foreign states that qualify as “terrorist part[ies]”
under 28 U.S.C. § 1605A, it does so only when those foreign
states already have lost their jurisdictional immunity either
through the FSIA’s terrorism exception or some other route
that allowed the lawful entry of judgment against them (such
as the foreign state’s own waiver of its immunity).
The John Does’ theory that the TRIA by its own force
pierces foreign sovereigns’ jurisdictional immunity is at odds,
then, with Congress’s express identification of a class of
foreign sovereigns to which the TRIA should apply: those
whose jurisdictional immunity has already been forfeited under
28 U.S.C. § 1605A.
The John Does’ reading also would nullify the role that the
FSIA accords the Executive Branch in deciding which foreign
states may be held liable for acts of terrorism. The FSIA’s
terrorism exception applies only if “the foreign state was
designated as a state sponsor of terrorism at the time the
[terrorist] act * * * occurred, or was so designated as a result of
such act” by the Secretary of State. 28 U.S.C.
§ 1605A(a)(2)(A)(i)(I). This designation provision allows the
Executive Branch to regulate if and when a foreign sovereign
may be haled into American courts to answer terrorism
allegations. See also 28 U.S.C. § 1610 note (defining
“‘terrorist party’ [to] mean[] a terrorist, a terrorist
organization[,] * * * or a foreign state designated as a state
sponsor of terrorism” by the Executive) (emphasis added);
Owens v. Republic of Sudan, 531 F.3d 884, 889–893 (D.C. Cir.
2008) (situating the FSIA’s delegation of authority to designate
state sponsors of terrorism in the President’s foreign-relations
powers).
14
Yet the John Does argue that, even absent such an
Executive-Branch designation, foreign sovereigns or
international organizations may be brought before United
States courts to answer for acts of terrorism under the TRIA so
long as the sought-after assets are subject to the statute. But
that theory ignores Congress’s explicit choice—made not once
but twice in the TRIA itself—to emphasize the importance of
an affirmative designation by the Executive Branch before a
foreign sovereign may be haled into federal court for acts of
terrorism. Reading Section 201(a) to provide an independent
basis for abrogating foreign states’ jurisdictional immunity as
to terrorism-related judgments—with or without any state-
sponsor-of-terrorism designation—would leave those
provisions no work to do.
B
The John Does lean heavily on Section 201(a)’s prefatory
clause, which clarifies that Section 201(a) should apply
“[n]otwithstanding any other provision of law[.]” 28 U.S.C.
§ 1610 note. They reason that the “notwithstanding” clause
itself abrogates the World Bank’s and Fund’s statutory
immunity from suit.
We rejected essentially the same argument in Greenbaum
v. Islamic Republic of Iran, 67 F.4th 428 (D.C. Cir. 2023).
There, plaintiffs sought to recover Iranian assets being held by
the United States. Id. at 430. The United States’ sovereign
immunity ordinarily would block any such action. Id. at 431.
But the Greenbaum plaintiffs argued that, so long as they
sought “blocked assets” subject to the TRIA, the TRIA’s
“notwithstanding” clause erased that immunity barrier. Id. at
432.
15
We held that the “notwithstanding” clause in Section
201(a) was too indirect of a formulation to provide the needed
clarity to abrogate sovereign immunity. Greenbaum, 67 F.4th
at 432–434. Instead, we held that the function of the
notwithstanding clause is to signal that the TRIA prevails over
provisions of law that conflict with the substantive scope of the
TRIA. Id. at 433. Said another way, “[t]he reach of the
notwithstanding clause is * * * necessarily determined by the
substantive text that follows it[.]” Id. And because that
substantive text “has nothing express to say about * * *
sovereign immunity,” “the notwithstanding clause cannot aid”
the John Does. Id.
Instead, the TRIA’s substantive text clears away
execution-specific barriers standing between a judgment
creditor and a terrorist party’s assets. Most obviously, since
foreign states enjoy both jurisdictional and execution
immunity, Section 201(a) clears away execution immunity over
a foreign state’s “blocked assets” where that foreign state is
already “not immune”—i.e., is already subject to the court’s
jurisdiction—under 28 U.S.C. § 1605A.
For example, the FSIA separately contains an exception to
execution immunity for frozen assets of foreign state sponsors
of terrorism. 28 U.S.C. § 1610(f)(1)(A). But the President
“may waive” that exception after determining that a waiver
would be “in the interest of national security.” Id. § 1610(f)(3).
The TRIA’s notwithstanding clause “eliminate[d] the effect of
any Presidential waiver issued prior to the date of enactment
purporting to bar or restrict enforcement of such judgments[.]”
H.R. Rep. No. 779, 107th Cong., 2d Sess. 27 (2002) (Conf.
Rep.); see Elahi, 556 U.S. at 386 (considering the conference
report’s discussion of Section 201(a)’s relation to presidential-
waiver authority). Section 201(a)’s notwithstanding clause, in
short, overrides barriers to execution, such as execution
16
immunity and presidential waivers reinstating such immunity.
It does not speak to the predicate question of jurisdictional
immunity over a defendant or third-party garnishee.
Nor is this court at liberty to construe any ambiguity in the
notwithstanding clause to open the jurisdictional door to suing
foreign states. The FSIA is the “sole” route to subject matter
jurisdiction over sovereign nations and, by virtue of the IOIA,
international organizations. Amerada Hess, 488 U.S. at 434.
If abrogation of immunity is to occur through another route,
that decision must be made not by judicial inference, but by the
Political Branches that are constitutionally charged with
conducting foreign relations and making the sensitive
diplomatic and national-security judgments that pervade
waivers of foreign sovereign immunity. Borochov v. Islamic
Republic of Iran, 94 F.4th 1053, 1062 (D.C. Cir. 2024) (“The
courts, in other words, should not open the door to litigation
against foreign governments that the Political Branches have
not clearly authorized.”); see Kiobel v. Royal Dutch Petroleum
Co., 569 U.S. 108, 116 (2013) (applying presumption against
extraterritoriality in part to “ensure that the Judiciary does not
erroneously adopt an interpretation of U.S. law that carries
foreign policy consequences not clearly intended by the
political branches”). Such delicate and difficult judgments
about international relations fall beyond the judicial ken.
Borochov, 94 F.4th at 1062; see Zivotofsky ex rel. Zivotofsky v.
Kerry, 576 U.S. 1, 5 (2015) (Certain “difficult and complex
[questions] in international affairs * * * are committed to the
Legislature and the Executive, not the Judiciary.”). So unless
and until Congress plainly says otherwise, any statutory
ambiguity concerning a waiver of foreign immunity outside the
FSIA must be resolved in favor of its preservation.
17
C
We do not stand alone in reading Section 201(a) to do no
more and no less than its text provides—that is, to clear
execution-related barriers to recovery against defendants
whose immunity from suit has already been lost. The Supreme
Court took the same tack in Ministry of Defense & Support for
the Armed Forces of the Islamic Republic of Iran v. Elahi, 556
U.S. 366 (2009). There, the Court rejected the argument that
Section 201(a) displaces a provision in the Victims Protection
Act that compensates victims with terrorism-related judgments
against Iran as long as they agree to relinquish any further
claims. Id. at 385–386; see Victims of Trafficking and
Violence Protection Act of 2000, § 2002(d)(5)(B), as added by
TRIA § 201(c)(4), 116 Stat. 2339, 28 U.S.C. § 1610 note.
Since Section 201(a) could have allowed the victim to execute
against Iran’s “blocked assets” but for his prior relinquishment
of claims, Elahi argued that the “notwithstanding” clause
displaced that relinquishment requirement and reinstated his
claims as to assets otherwise recoverable under the TRIA.
Elahi, 556 U.S. at 385.
The Supreme Court rejected Elahi’s argument, explaining
that “Congress could not have intended the [notwithstanding
clause] to narrow so dramatically an important provision [of
the Victims Protection Act] that it inserted in the same statute.”
Elahi, 556 U.S. at 386. The Court also “point[ed] out that the
[legislative] history suggests that Congress placed the
‘notwithstanding’ clause in § 201(a) * * * to eliminate the
effect of any Presidential waiver issued under 28 U.S.C.
§ 1610(f)[.]” Id.; see H.R. Rep. No. 779, supra, at 27.
Other courts have likewise “rejected an expansive reading
of the text of the TRIA * * * as displacing anything that stands
in the way of a particular plaintiff’s collecting.” Greenbaum,
18
67 F.4th at 434; see id. at 434–435 (collecting cases); Stansell
v. Revolutionary Armed Forces of Columbia, 771 F.3d 713,
729–730 (11th Cir. 2014) (reasoning that Section 201(a)’s
notwithstanding clause does not displace “Florida’s
requirements that owners of property being garnished or
executed against are entitled to notice”); Smith ex rel. Estate of
Smith v. Federal Reserve Bank of N.Y., 346 F.3d 264, 271–272
(2d Cir. 2003) (concluding that the TRIA’s notwithstanding
clause does not alter President’s separate authority to
confiscate certain assets); United States v. Holy Land Found.
for Relief & Dev., 722 F.3d 677, 688 (5th Cir. 2013) (rejecting
the “sweeping assertion * * * that the [TRIA’s]
‘notwithstanding’ clause trumps any other law that has the
incidental effect of removing funds from the reach of judgment
creditors”).
The Supreme Court’s and other courts’ reading of Section
201(a) reinforces our holding that the notwithstanding clause
addresses execution-related barriers to enforcing judgments,
and nothing further.
D
1
The John Does point to decisions of the Second and Ninth
Circuits that have read Section 201(a) to provide a basis for
jurisdiction over a state sponsor of terrorism’s “agenc[ies] or
instrumentalit[ies].” 28 U.S.C. § 1610 note; see Weinstein, 609
F.3d at 49; Bennett v. Islamic Republic of Iran, 825 F.3d 949,
958 (9th Cir. 2016), abrogated on other grounds by Rubin v.
Islamic Republic of Iran, 138 S. Ct. 816 (2018). Since the
FSIA defines the term “foreign state” to include state agencies
and instrumentalities, see 28 U.S.C. § 1603(a), a state’s agency
19
or instrumentality ordinarily enjoys its own jurisdictional
immunity, just as the parent state does, see id. § 1604. 5
Accordingly, for Section 201(a) to create jurisdiction over
a state’s agency or instrumentality, it must do so
“notwithstanding” that entity’s jurisdictional immunity. On
that basis, the John Does argue that the Second and Ninth
Circuits’ readings of Section 201(a) would abrogate
jurisdictional immunity in this case. John Does Reply Br. 15–
19.
That is not correct. In both Weinstein and Bennett,
plaintiffs with valid judgments against Iran sought to enforce
those judgments against Bank Melli—an entity wholly owned
by Iran and “undisputed[ly] * * * an instrumentality of Iran
under the FSIA.” Bennett, 825 F.3d at 957; see Weinstein, 609
F.3d at 46–47. The issue in those cases was whether Bank
Melli, which was not named in the plaintiffs’ judgments, was
immune from jurisdiction. See Weinstein, 609 F.3d at 48;
Bennett, 825 F.3d at 958.
5
Because the FSIA treats the jurisdictional immunity of foreign
states and of their agencies and instrumentalities as separate, the
abrogation of a foreign state’s jurisdictional immunity does not itself
allow for jurisdiction over its agencies and instrumentalities (or vice
versa). See, e.g., 28 U.S.C. § 1605(a)(3) (separately discussing
property used “in connection with a commercial activity carried on
in the United States by the foreign state” and property “owned or
operated by an agency or instrumentality of the foreign state” in
connection with a U.S. commercial activity); Foremost-McKesson,
Inc. v. Islamic Republic of Iran, 905 F.2d 438, 440 (D.C. Cir. 1990)
(“Under [the] FSIA, agencies and instrumentalities of a foreign
nation are presumed to be separate from each other and from the
foreign state.”).
20
The Second and Ninth Circuits each rejected Bank Melli’s
claim of immunity, reasoning that Section 201(a) “clearly
differentiates between the party that is the subject of the
underlying judgment itself, which can be any terrorist party
(here, Iran), and parties whose blocked assets are subject to
execution or attachment, which can include not only the
terrorist party but also ‘any agency or instrumentality of that
terrorist party.’” Weinstein, 609 F.3d at 49 (quoting 28 U.S.C.
§ 1610 note); see Bennett, 825 F.3d at 958. The Second Circuit
reasoned that one purpose of Section 201(a) was to eliminate
“any juridical distinction between a terrorist state and its
agencies or instrumentalities”—to erase the distinct execution
immunity ordinarily enjoyed by agencies and
instrumentalities—when it comes to “enforcing a judgment
against a terrorist state[’s]” blocked assets. Weinstein, 609
F.3d at 50 (quoting 148 Cong. Rec. S11528). Critically, in both
Weinstein and Bennett, the plaintiffs had already overcome
Iran’s jurisdictional immunity through the FSIA’s state-
sponsor-of-terrorism exception and had obtained a valid
judgment against it. Bennett, 825 F.3d at 957; see Weinstein,
609 F.3d at 46–47.
That predicate loss of immunity by the World Bank and
the Fund is exactly what is missing in this case. The John Does
did not obtain jurisdiction over the World Bank or Fund in
obtaining their damages judgment against the Taliban, Al-
Qaeda, and the Haqqani Network. And neither the World Bank
nor the Fund is even arguably an agent or instrumentality of the
Taliban.
To that point, the Second Circuit has held that “[S]ection
201(a) provides for federal court jurisdiction over execution
and attachment proceedings involving the assets of a foreign
sovereign * * * only where ‘a valid judgment has been entered’
against the sovereign” itself. Vera v. Banco Bilbau Vizcaya
21
Argentaria, 946 F.3d 120, 133 (2d Cir. 2019) (formatting
modified) (quoting Vera v. Republic of Cuba, 867 F.3d 310,
321 (2d Cir. 2017)).
2
Lastly, the John Does argue that the World Bank’s and
Fund’s refusals to answer interrogatories submitted to them
before they appeared in the case entitled the John Does to
judgment as a matter of law, or at least to an order requiring
that the answers be provided. See John Does Br. 13–14, 32–
35.
That is not so. To the extent the John Does argue that the
district court could have entered judgment or required the
World Bank and Fund to answer interrogatories without first
determining its jurisdiction over them, that argument plainly
fails. See, e.g., Nyambal, 772 F.3d at 280–281 (“[I]mmunity,
where justly invoked, shields defendants not only from the
consequences of litigation’s results but also from the burden of
defending [against it].”) (quoting Tuck v. Pan American Health
Org., 668 F.2d 547, 549 (D.C. Cir. 1987)); see also 22 U.S.C.
§ 288a(b) (vesting international organizations with “the same
immunity from suit and every form of judicial process” as
foreign states) (emphasis added).
The John Does’ argument that the District of Columbia’s
garnishment procedures required the World Bank and Fund to
assert an immunity defense within ten days or else waive it
fares no better. See Opening Br. 32–33. For one thing, federal
law affords the World Bank and Fund immunity. 22 U.S.C.
§ 288a(b); 28 U.S.C. § 1604. District garnishment procedures
cannot strip that federal-law protection. See Nyambal, 772
F.3d at 187.
22
For another thing, the World Bank and Fund asserted
immunity in their first substantive filings in the district court
on the schedule set by that court. John Does 1 Through 7, 2022
WL 4103853, at *1. The John Does cite no authority finding
waivers of jurisdictional immunity based solely on the
plaintiffs’ schedule for filing interrogatories, nor would our
precedent allow such a conclusion. See Inversora Murten, S.A.
v. Energoprojekt-Niskogradnja Co., 264 F. App’x 13, 15 (D.C.
Cir. 2008) (finding no waiver of jurisdictional immunity by the
World Bank where it “assert[ed] it in a letter to [the other party]
rather than in a formal motion to the court”); cf. Delta Foods
Inc. v. Republic of Ghana, 265 F.3d 1068, 1069–1071 (D.C.
Cir. 2001) (finding that Ghana waived jurisdictional immunity
after it fully participated in district court litigation without
raising immunity, subsequently lost, filed an appeal without
raising jurisdictional immunity, and then finally raised the
argument for the first time in a motion for relief from
judgment); id. at 1071 (noting that “Ghana arguably could have
asserted sovereign immunity for the first time in the court of
appeals because the objection goes to the subject matter
jurisdiction of the court”).
Were all that not enough, the John Does’ argument
overreads the relevant provisions of the D.C. Code. Certainly
District law specifies that garnishees should respond to
interrogatories within ten days of proper service. D.C. CODE
§ 16-521(a). But the Code then specifies that a garnishee who
fails to do so may “appear [in court] and show cause why a
judgment of condemnation should not be entered.” Id. § 16-
526(b). Here, the World Bank and Fund explained to the
district court why no such judgment should be entered: The
23
district court lacked jurisdiction to enter it. District law
required nothing more. 6
V
While the TRIA provides a powerful tool for plaintiffs
seeking to satisfy judgments based on acts of terrorism, that
tool applies only to foreign states and international
organizations once jurisdiction has been established over them.
Because the TRIA leaves the World Bank’s and Fund’s
jurisdictional immunity intact, the district court could not
entertain the John Does’ garnishment action. We accordingly
affirm the district court’s order quashing the John Does’ writs
of execution and dismissing the attachment proceeding. 7
So ordered.
6
Serious doubt that the interrogatories were properly served on the
World Bank and Fund—they were left at the feet of security guards
at the entities’ respective offices—further undermines any
suggestion that a strict ten-day clock began to run upon the
interrogatories’ unorthodox deposit. See 28 U.S.C. § 1608 (FSIA’s
service requirements); D.C. Super. Ct. Civ. R. 4 (same for D.C.).
While only the Fund raises a service argument on appeal, we need
not decide that question in light of our holding that the World Bank
and Fund have jurisdictional immunity.
7
Because the TRIA provides no basis for abrogating the World
Bank’s and Fund’s jurisdictional immunity under the IOIA and
FSIA, we need not address the World Bank’s and Fund’s other
arguments, such as whether (i) the John Does met the requirements
of the TRIA, (ii) the President’s recognition powers preclude a
judicial determination that the Taliban controls the Afghan
government or its central bank, and (iii) the Fund was properly
served and the additional immunities in the Fund’s Articles were
overcome. See World Bank Br. 34–53; Fund Br. 40–53.