15-0690
Peterson v. Islamic Republic of Iran


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT
                                           August Term, 2015
  (Originally Argued: June 8, 2016                 Originally Decided: November 20, 2017)
             (Argued upon remand from the Supreme Court: May 27, 2020
             Decided upon remand from the Supreme Court: June 22, 2020)
                                          Docket No. 15-0690


                                       Deborah D. Peterson, et al.,
                                         Plaintiffs-Appellants,

                                                    v.

Islamic Republic of Iran, Bank Markazi, AKA Central Bank of Iran, Banca UBAE
         SpA, Clearstream Banking, S.A., JPMorgan Chase Bank, N.A.,
                             Defendants-Appellees.


Before:           POOLER, SACK, and LOHIER, Circuit Judges.

AFFIRMED in part, VACATED in part, and REMANDED

                                                 JAMES P. BONNER, Fleischman Bonner &
                                                 Rocco LLP, White Plains, New York
                                                 (Patrick L. Rocco, Susan M. Davies,
                                                 Fleischman Bonner & Rocco LLP, White
                                                 Plains, New York, Liviu Vogel, Salon
                                                 Marrow Dyckman, Newman & Broudy
                                                 LLC, New York, New York, on the brief), for
                                                 Plaintiffs-Appellants;
                                                 ROBERT K. KRY, MoloLamken LLP,
                                                 Washington, D.C. (Jeffrey A. Lamken,
                                                 Lauren M. Weinstein, MoloLamken LLP,

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                                        Washington, D.C., Donald F. Luke, Jaffe &
                                        Asher LLP, New York, New York, on the
                                        brief), for Defendant-Appellee Bank Markazi,
                                        AKA Central Bank of Iran;
                                        UGO COLELLA (John J. Zefutie, Jr., on the
                                        brief), Colella Zefutie LLC, Washington,
                                        D.C., for Defendant-Appellee Banca UBAE
                                        S.p.A.;
                                        BENJAMIN S. KAMINETZKY (Gerard X.
                                        McCarthy, on the brief), Davis Polk &
                                        Wardwell LLP, New York, New York, for
                                        Defendant-Appellee Clearstream Banking
                                        S.A.
PER CURIAM:

      PROCEDURAL HISTORY

        We first addressed this matter in Peterson v. Islamic Republic of Iran (Peterson
II), 876 F.3d 63 (2d Cir. 2017), on appeal from a judgment of the United States
District Court for the Southern District of New York, Peterson v. Islamic Republic of
Iran, Case No. 13-cv-9195, 2015 WL 731221, (KBF) (S.D.N.Y. Feb. 20, 2015). We
affirmed in part, vacated in part, and remanded. We summarized our
conclusions thus:

      1. Plain error as to the application of the [defendant] Clearstream
      settlement agreement to those plaintiffs who were not parties to [a
      previous related judgment of the United States District Court for the
      Southern District of New York, Peterson v. Islamic Republic of Iran
      (Peterson I), Case No. 10 Civ. 4518 (KBF), 2013 WL 1155576 (S.D.N.Y.
      Mar. 13, 2013)] requires vacatur of the judgment of dismissal and
      remand with respect to those plaintiffs' non-turnover claims brought
      against Clearstream.

      2. Excepting those plaintiffs who were not parties to Peterson I, the
      Clearstream settlement agreement released the plaintiffs' non-
      turnover claims brought against Clearstream. The district court
      therefore properly dismissed those claims.

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      3. Whether the UBAE settlement agreement [in Peterson I] is
      applicable to the plaintiffs' non-turnover claims brought against
      UBAE is, under the language of the agreement, unclear. Those
      claims were, therefore, dismissed by the district court in error.
      Accordingly, we vacate and remand that part of the district court's
      judgment of dismissal.

      4. The UBAE settlement agreement did not release the plaintiffs'
      non-turnover claims brought against Markazi. Accordingly, we
      vacate and remand that part of the district court's judgment of
      dismissal.

      5. The district court correctly determined that the asset at issue is a
      right to payment held by Clearstream in Luxembourg. It also,
      therefore, properly dismissed JPMorgan from this action.

      6. The district court prematurely dismissed the amended complaint
      for lack of subject-matter jurisdiction. Cf. Republic of Argentina v.
      NML Capital, Ltd., 134 S. Ct. 2250 (2014); Koehler v. Bank of Berm. Ltd.,
      12 N.Y.3d 533, 911 N.E.2d 825, 883 N.Y.S.2d 763 (2009). On remand
      the district court should consider whether it has personal
      jurisdiction over Clearstream. If the court answers that question in
      the affirmative, then it should determine whether any provision of
      state or federal law prevents the court from recalling, or the
      plaintiffs from receiving, the asset.

Peterson II, 876 F.3d at 96.

      The defendants filed petitions for rehearing. We denied them, and in
doing so instructed the district court to consider UBAE’s personal jurisdiction
defense on remand. See Order Den. Reh’g, ECF No. 339.
      On May 7, 2018, Defendant Bank Markazi filed a petition for certiorari in
the Supreme Court of the United States. * On October 1, 2018, the Court sought




*Defendant Clearstream filed a petition for certiorari on the following day, May
8, 2018.
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the views of the Solicitor General of the United States. See Bank Markazi v.
Peterson, 139 S. Ct. 306 (2018) (Mem.).

       The Solicitor General responded more than a year later, on December 9,
2019, and recommended that the petitions for writs of certiorari be denied
because, inter alia, "both Houses of Congress ha[d] passed separate bills that, if
either bec[a]me[] law, could substantially affect the proper disposition of this
case." Br. of United States at 10.

       Eleven days later, on December 20, 2019, Congress enacted and the
President signed into law the National Defense Authorization Act for Fiscal Year
2020 ('NDAA"), Pub. L. No. 116-92, 133 Stat. 1198, a statute specifically directed,
at least in part, to this matter. Amending 22 U.S.C. § 8772, it bluntly provides,
inter alia, that "notwithstanding any other provision of law, including any
provision of law relating to sovereign immunity, and preempting any
inconsistent provision of State law," financial assets that satisfied certain
conditions, including those assets "identified in and the subject of proceedings in
the United States District Court for the Southern District [in Peterson II]," "shall be
subject to execution or attachment in aid of execution, or to an order directing
that the asset be brought to the State in which the court is located and
subsequently to execution or attachment in aid of execution, . . . without regard
to concerns relating to international comity" "in order to satisfy any" terrorism-
related judgment for "compensatory damages awarded against Iran." Id. §
8772(a)(1), (b)(2). (as amended).

      On the same day, the Solicitor General filed a supplemental brief with the
Supreme Court arguing that "[i]t now would be appropriate" for the Court "to
grant the certiorari petitions, vacate the judgment below, and remand to the
court of appeals for further consideration in light of the NDAA." Supp. Br. of
United States at 4–5.

       On January 13, 2020, the Supreme Court did as the Solicitor General
recommended, granting the pending petitions for certiorari, vacating our
decision in Peterson II, and remanding the matter to this Court. (The procedure is
commonly referred to as a "GVR." See Aaron-Andrew P. Bruhl, The Supreme
Court's Controversial GVRs — And an Alternative, 107 Mich. L. Rev 711 (2009)).
In doing so, the Court specifically referred to the NDAA. Its opinion reads in its
entirety: "The petitions for writs of certiorari are granted. The judgment is

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vacated, and the cases are remanded to the United States Court of Appeals for
the Second Circuit for further consideration in light of the National Defense
Authorization Act for Fiscal Year 2020, Pub. L. No. 116-___ (S. 1790)." Bank
Markazi v. Peterson, 140 S. Ct. 813 (2020) (Mem.).

      Upon return of the matter to us, we ordered further briefing from the
parties. On May 27, 2020, we heard argument as to what action this Court
should take in the wake of the vacatur by and remand from the Supreme Court.

      DISCUSSION

       In Part B of the "Discussion" section of Peterson II, 876 F.3d at 77–84, we
addressed the non-turnover claims at issue in this appeal. As summarized in our
conclusion in Peterson II, id. at 96, quoted above, we affirmed in part and vacated
and remanded in part. That portion of our opinion is not challenged by any
party to these proceedings at this juncture nor have we reason to doubt its
propriety. We therefore readopt that portion of our now vacated decision in
Peterson II as the decision of this Court.

      Part C of the "Discussion" section of Peterson II addressed the turnover
claim at issue in this appeal:

       In subpart 1 of Part C, id. at 84–87, we discussed the "Nature and Location
of the Assets" that the plaintiffs seek to have the courts require be turned over to
them. That portion of the opinion is summarized in Part 5 of our conclusion in
Peterson II, id. at 96, quoted above. We concluded that

      the assets at issue are . . . represented by a right to payment in the
      possession of Clearstream located in Luxembourg. Accordingly, the
      district court properly granted JPMorgan's motion for partial
      summary judgment because JPMorgan is not in possession of any
      assets subject to turnover. Similarly, neither Markazi nor UBAE
      possesses any assets subject to turnover here because the asset at
      issue is in fact held by Clearstream and represented as a positive
      account balance in a 'sundry blocked account' to which neither
      Markazi nor UBAE has access.




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 Id. at 87. That conclusion is similarly uncontested by the parties and we see no
reason to question it now. We therefore readopt that portion of the now vacated
Peterson II as the opinion of this Court.

         In subpart C.2 of the "Discussion" section of Peterson II, id. at 87–95, we
considered the "Jurisdiction for Execution" with respect to the turnover assets.
That portion of the opinion is summarized in Part 6 of our conclusion in Peterson
II, id. at 96, quoted above. We now reinstate only our judgment that the district
court prematurely dismissed the amended complaint for lack of subject-matter
jurisdiction and remand for the district court to reconsider that question. We do
not, at this time, reinstate our analysis as to whether the common law and Koehler
provide the district court with jurisdiction over the extraterritorial asset. Based
on the enactment of the NDAA, and the language employed by the Supreme
Court in vacating and remanding this matter to this Court, however, we
respectfully direct the district court, on remand, to address the issues before it
pertaining to the NDAA, personal jurisdiction, and, consistent with this opinion,
any other matters necessary to the resolution of the case.

       Finally, if this matter or any part thereof returns to this Court, in light of
the history of this litigation, the vacatur and remand of this Court's judgment by
the Supreme Court, and this panel's long-standing familiarity with the matter
and the very complex issues to which it gives rise, we respectfully direct the
Clerk of this Court to return the matter to this panel for further review and
adjudication. Cf. United States v. Jacobson, 15 F.3d 19 (2d Cir 1994); id. at 22
(citing, inter alia, Gulliver v. Dalsheim, 739 F.2d 104, 106 (2d Cir.1984), in which
"the panel retained jurisdiction in a habeas case while remanding to allow the
district court to apply intervening decisions of this court"); see also Gulliver v.
Dalsheim, 687 F.2d 655, 659 (2d Cir. 1982) (remanding while retaining
jurisdiction). From whatever decision the district court makes on remand on any
of the issues being remanded for further consideration in this case, the
jurisdiction of this Court to consider a subsequent appeal may be invoked by any
party by notification to the Clerk of Court within ten days of the district court’s
decision, see Jacobson, 15 F.3d at 21–22, in which event the renewed appeal will be
assigned to this panel.

     The judgment of the district court is thus affirmed in part, and vacated and
remanded in part.


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