                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

              No. 01-7101      September Term, 2002 

                   Filed On:  October 17, 2002

                       Stephen M. Flatow, 
            Individually and as Administrator of the 
           Estate of Alisa Michelle Flatow, deceased, 
                            Appellant

                                v.

                    Islamic Republic of Iran, 
            The Ministry of Foreign Affairs, et al., 
                            Appellees

                        Consolidated with 
                           No. 01-7149

          Appeals from the United States District Court 
                  for the District of Columbia 
                         (No. 97cv00396)

     Before:  Edwards, Henderson, and Rogers, Circuit Judges.

                            O R D E R

     It is ORDERED, by the Court, sua sponte, that the 
opinion filed herein on October 8, 2002 is amended as follows:

     On page 2, revise the last sentence of the first paragraph to 
read:

     We affirm the district court's interpretation ... and the 
order limiting the subpoena and the corresponding protective 
order.

     On page 8, add a footnote at the end of the first full 
paragraph to read:

     The district court also issued a protective order that Flatow 
does not challenge, requesting only that the scope of the 
order be coextensive with the scope of relinquishment of 
attachment rights under the Victims Act s 2002.  Appellant's 
Br. At 6, 34.

     On page 11, revise the last sentence of the last paragraph 
to read:

     We affirm the district court's interpretation of "regulated" 
Iranian property under IEEPA and the order limiting the 
subpoena to this legal interpretation and the corresponding 
protective order.

                                             Per Curiam

                                             FOR THE COURT:

                                             Mark J. Langer, Clerk

                                   BY:

                                             Michael C. McGrail 
                                             Deputy Clerk 

                                                          


                                 








                         United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

       Argued September 6, 2002    Decided October 8, 2002 

                           No. 01-7101

                       Stephen M. Flatow, 
            Individually and as Administrator of the 
           Estate of Alisa Michelle Flatow, deceased, 
                            Appellant

                                v.

                    Islamic Republic of Iran, 
            The Ministry of Foreign Affairs, et al., 
                            Appellees

                        Consolidated with 
                           No. 01-7149

          Appeals from the United States District Court 
                  for the District of Columbia 
                         (No. 97cv00396)

     Steven R. Perles argued the cause for appellant.  With him 
on the brief was Thomas Fortune Fay.

     H. Thomas Byron III, Attorney, U.S. Department of Jus-
tice, argued the cause for appellee United States.  With him 
on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and 
Douglas Letter, Litigation Counsel, U.S. Department of Jus-
tice.

     Before:  Edwards, Henderson, and Rogers, Circuit Judges.

     Opinion for the Court filed by Circuit Judge Rogers.

     Rogers, Circuit Judge:  This is an appeal from an order 
denying a motion to compel payment of post-judgment inter-
est by the United States Treasury Department, and narrow-
ing the scope of a third-party subpoena under Federal Rule 
of Civil Procedure 45.  See Flatow v. Islamic Republic of 
Iran, 196 F.R.D. 203 (D.D.C. 2000).  We dismiss the appeal of 
the claim for post-judgment interest for lack of jurisdiction, 
and vacate the district court's opinion on that issue, because 
the district court lacked jurisdiction to entertain a claim 
against a nonparty.  We affirm the district court's interpreta-
tion of "regulated" Iranian property under the International 
Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. 
ss 1701-02, and the order limiting the subpoena and the
corresponding protective order.

                                I.

     Stephen M. Flatow obtained a default judgment for more 
than $225 million in compensatory and punitive damages 
awards in a tort action that he filed against the government of 
Iran and several of its officials pursuant to the Foreign 
Sovereign Immunities Act ("FSIA"), 28 U.S.C. s 1605(a)(7).  
See Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 5 
(D.D.C. 1998).  Flatow's attempts to collect the judgment 
were unsuccessful.1  Subsequently, on October 28, 2000, the 
Victims of Trafficking and Violence Protection Act of 2000, 
Pub. L. No. 106-386, 114 Stat. 1464 (2000) ("Victims Protec-

__________
     1  See Flatow v. Islamic Republic of Iran, 76 F. Supp. 2d 28 
(D.D.C. 1999);  Flatow v. Islamic Republic of Iran, 76 F. Supp. 2d 
16 (D.D.C. 1999);  Flatow v. Islamic Republic of Iran, 74 F. Supp. 
2d 18 (D.D.C. 1999).

tion Act") became law, affording certain victims of terrorists' 
acts an opportunity to recover funds from the United States 
to satisfy their outstanding judgments.2  One month later, on 
November 28, 2000, Flatow applied for such funds, electing 
100% recovery of the amount of compensatory damages 
plus post-judgment interest.  See Victims Protection Act, 
s 2002(a)(1)(B).  His application was approved, and on Janu-
ary 4, 2001, the Treasury Department transferred to Flatow 
more than $26 million, representing the compensatory dam-
ages award and post-judgment interest on that portion of the 
judgment.  As a condition of receiving funds from the United 
States, Flatow was required under s 2002(a)(2)(D) of the 
Victims Protection Act to relinquish "all rights to execute 
against or attach property that is ... subject to section 
1610(f)(1)(A) of title 28, United States Code."3
__________
     2  The Victims Protection Act offered two options for payment.  
As relevant here, s 2002(a)(1) of the statute provides:

          Subject to subsections (b) and (c), the Secretary of the 
     Treasury shall pay each person described in paragraph (2), at 
     the person's election--
     
          (A) 110 percent of compensatory damages awarded by judg-
     ment of a court on a claim or claims brought by the person 
     under section 1605(a)(7) of title 28, United States Code, plus 
     amounts necessary to pay post-judgment interest under section 
     1961 of such title ... [or]
     
          (B) 100 percent of the compensatory damages awarded by 
     judgment of a court on a claim or claims brought by the person 
     under section 1605(a)(7) of title 28, United States Code, plus 
     amounts necessary to pay post-judgment interest, as provided 
     in section 1961 of such title....
     
 Section 2002(a)(2)(C) provides that a person electing to receive 
payment for 110% of compensatory damages, "relinquishes all 
rights and claims to punitive damages awarded in connection with 
such claim or claims."

     3  Section 2002(a)(2)(D) provides that a person receiving pay-
ment for 100% of compensatory damages,

     relinquishes all rights to execute against or attach property 
     that is at issue in claims against the United States before an 

     Both the scope of Flatow's election of payment and the 
scope of his relinquishment of the right to attach Iranian 
assets are at issue.  Flatow contends that the district court 
erred in interpreting the Victims Protection Act first, by 
denying his motion to compel payment of post-judgment 
interest on the punitive damages award, which we address in 
Part II, and second, by narrowing his subpoena because he 
would be unable to attach Iranian property that is regulated 
by the United States, which we address in Part III.

                               II.

     Flatow contends that the district court ignored the plain 
language of s 2002(a)(1)(B) of the Victims Protection Act in 
denying his motion to compel the Treasury Department to 
pay post-judgment interest on his punitive damages award.  

__________
     international tribunal, that is the subject of awards rendered by 
     such tribunal, or that is subject to section 1610(f)(1)(A) of title 
     28, United States Code.
     
 By Notice published in the Federal Register on November 22, 
2000 to "Persons Who Hold Certain Categories of Judgments 
Against Cuba or Iran," the Office of Foreign Assets Control in the 
Treasury Department ("OFAC") explained that an applicant who 
elects the 100% option is barred from seeking to attach "virtually all 
Iranian ... assets within the jurisdiction of the United States."  65 
Fed. Reg. 70382, 70384.  The Notice stated that the Victims Protec-
tion Act required relinquishment of rights to attach or execute 
against property subject to 28 U.S.C. s 1610(f)(1)(A), which "applies 
to 'any property with respect to which financial transactions are 
prohibited or regulated pursuant to ... the International Emergen-
cy Economic Powers Act (50 U.S.C. 1701-1702) (IEEPA), or any 
other proclamation, order, regulation, or license issued pursuant 
thereto.' "  Id. (quoting 28 U.S.C. s 1610(f)(1)(A)).  The Notice 
explained, as well, the comprehensive sanctions programs against 
Iran under IEEPA, such that "virtually every transaction involving 
Iranian ... property within the jurisdiction of the United States is 
either 'prohibited' or 'regulated,' i.e., permitted only by a general 
license in regulations promulgated by" OFAC, or by a "specific 
license issued by OFAC."  Id.

We do not reach the merits of this contention for lack of 
jurisdiction.

     The United States filed a Statement of Interest in the 
district court on July 23, 1998, in light of Flatow's writs of 
attachment on three parcels of real estate in the District of 
Columbia that were diplomatic properties of Iran and that 
had been held in the custody of the State Department since 
1980.  The Statement explained that it was submitted solely 
to protect the United States' interests and to advise the court 
of its legal obligations with respect to the writs under United 
States law and international agreements.  For example, the 
Statement argued that the rental of diplomatic residences did 
not make them commercial properties, and that s 1610(b) is 
inapplicable because Flatow is seeking attachment of "proper-
ty in the United States of a foreign state," which is defined in 
s 1610(a).  The Statement sought vacation of the attachments 
and quashing of the accompanying writs.4  The Statement 
further stated that the United States was not appearing on 
behalf of Iran and "expressly condemns the acts that brought 
about the judgment in this case."

     In response, Flatow filed a motion to compel payment by 
the Treasury Department of post-judgment interest on the 
punitive damages portion of his judgment against Iran.  The 
United States, in turn, argued that Flatow could not convert 
litigation regarding his Rule 45 subpoena into a proceeding 
involving an unrelated claim for monetary relief under 
s 2002(2) of the Victims Protection Act against a non-party, 

__________
     4  The Statement of Interest asserted that the three properties 
are (1) immune from attachment under the Foreign Missions Act, 
22 U.S.C. ss 4301-4316, and the FSIA, 28 U.S.C. ss 1602-1611;  (2) 
"blocked" under Executive Order 12170, 44 Fed. Reg. 65729 (Nov. 
15, 1979), issued pursuant to IEEPA, 50 U.S.C. ss 1701-1706;  (3) 
subject to ongoing proceedings between Iran and the United States 
in the Iran-U.S. Claims Tribunal;  and (4) that attachment would 
interfere with the ability of the United States to discharge its 
obligations under the Vienna Convention on Diplomatic Relations, 
T.I.A.S. No. 7502, 23 U.S.T. 3227 (1964), and jeopardize important 
foreign policy interests of the United States.

and alternatively, that the United States had not waived its 
sovereign immunity to suits of this sort in the district court.

     The district court did not address the United States' objec-
tion to its jurisdiction, ruling instead that Flatow had waived 
his right to recover interest on his punitive damages award.  
Flatow v. Islamic Republic of Iran, 201 F.R.D. 5, 11 (D.D.C. 
2001).  This was error because the court lacked jurisdiction to 
hear or decide the merits of Flatow's motion to compel a 
nonparty.

     "The principle that courts lacking jurisdiction over litigants 
cannot adjudicate their rights is elementary...."  In re 
Sealed Case, 141 F.3d 337, 341 (D.C. Cir. 1998).  The Federal 
Rules of Civil Procedure provide that "[t]here shall be one 
form of action to be known as 'civil action' " and such an 
action shall be commenced by filing a complaint with the 
court, with related service, answer, and motions obligations 
thereafter.  See Fed. R. Civ. P. 2, 3, 4, 7(a);  see also 1 
Moore's Federal Practice ss 3.02[2], 3-7 (3d ed. 2000).  
Under Federal Rule of Civil Procedure 10(a), the names of all 
parties must appear in the complaint filed in the district 
court.  As in Peralta v. U.S. Attorney's Office, 136 F.3d 169 
(D.C. Cir. 1998), "the district court lost track of the identity of 
the 'defendant' in this litigation."  Id. at 171.

     Flatow never named the United States or any agency or 
officer of the federal government as a defendant in his tort 
action against Iran under the FSIA.  He does not claim to 
have served the United States or the Treasury Department 
with a summons, much less to have made a demand on the 
Treasury Department for post-judgment interest on his puni-
tive damages award prior to filing his motion to compel 
payment.  Nor did Flatow amend his complaint to add the 
United States as a party, and the district court docket does 
not indicate that the United States was added as a party 
through joinder or intervention.

     Furthermore, even if the filing of the Statement were 
viewed as an appearance by the United States, see 28 U.S.C. 

s 517,5 it clearly was a limited appearance, focusing on the 
attachments and not the merits of the underlying tort action.  
In addition, the United States presented a jurisdictional 
objection to Flatow's motion to compel.  See Fed. R. Civ. P. 
12(b);  see also Chase v. Pan-Pacific Broad. Inc., 750 F.2d 
131 (D.C. Cir. 1984).  Cf. Land v. Dollar, 188 F.2d 629, 632 
(D.C. Cir. 1951).  Neither could the filing of the Statement of 
Interest suffice to make the United States a de facto interve-
nor, assuming the validity of that concept, for the United 
States was not present throughout every stage of the pro-
ceedings, its interests were not synonymous with those of the 
named Iranian defendants, and it did not behave as a party in 
the district court.  See Peralta, 136 F.3d at 174.  Under the 
circumstances, the United States took no action that subject-
ed it to the general jurisdiction of the district court.  See Dry 
Clime Lamp Corp. v. Edwards, 389 F.2d 590, 596-97 (5th Cir. 
1968);  McQuillen v. Nat'l Cash Register Co., 112 F.2d 877, 
881-82 (4th Cir. 1940);  Salmon Falls Mfg. Co. v. Midland 
Tire & Rubber Co., 285 F. 214, 217-18 (6th Cir. 1922);  Grable 
v. Killits, 282 F. 185, 194 (6th Cir. 1922).

     Consequently, the Rule 45 subpoena modification proceed-
ing could not provide a substitute for a properly initiated civil 
action seeking particular relief, as authorized by statute.  The 
district court, therefore, was without jurisdiction to hear or 
decide the question raised by Flatow's motion, and the dis-
trict court's opinion on the merits of his claim should be 
vacated.

                               III.

     On June 5, 1998, Flatow served a third-party subpoena on 
the Treasury Department, pursuant to Federal Rule of Civil 
Procedure 45, to produce "[a]ll documents of any type or 
description pertaining to any assets which any of the named 
defendants ... have or ever had or ... asserted or alleged 

__________
     5  Under 28 U.S.C. s 517, the United States may appear in any 
court of the United States "to attend to the interests of the United 
States in a suit pending in a court of the United States, or in a court 
of a State, or to attend to any other interest of the United States."

any interest, claim, ownership right or security interest" in as 
well as assets in the custody or control of the defendants, or 
that constituted " 'blocked assets' of the ... defendants."  
Although the Department objected that the subpoena was 
overly broad and unduly burdensome, the district court large-
ly rejected that challenge and ordered the Department to 
comply with the subpoena.  See Flatow, 196 F.R.D. 203.  In 
early 2001, however, the Department moved for modification 
of the subpoena based on Flatow's relinquishment of certain 
attachment rights under s 2002(a)(2)(D) of the Victims Pro-
tection Act, and also requested that certain offices within the 
Department be protected against further discovery under the 
subpoena.
     The district court ruled that the subpoena was overbroad in 
violation of Rule 45.  See Flatow, 201 F.R.D. at 8.  The court 
reasoned that because Flatow relinquished his right to exe-
cute or attach various types of Iranian property under his 
s 2002(a)(1)(B) election, information about such property was 
irrelevant to his goal of collecting punitive damages.  Id.  
The court rejected Flatow's argument that the Department 
had a mandatory duty to assist the court in locating Iranian 
assets under s 1610(f)(2)(A) (as amended by s 2002(f) of the 
Victims Protection Act) because s 2002(a)(2)(D) of the Vic-
tims Protection Act prohibited Flatow from attaching some of 
those very assets.  Id. at 9.  The court also rejected Flatow's 
argument that the property enumerated in s 2002(a)(2)(D) 
does not include Iranian commercial property or property not 
within the custodial control of the United States.  Id.  The 
court accordingly modified the subpoena, quoting 
s 2002(a)(2)(D), so as not to require the production of infor-
mation relating to "property that is at issue in claims against 
the United States before an international tribunal, that is the 
subject of awards rendered by such tribunal, or that is 
subject to section 1610(f)(1)(A) of Title 28, United States 
Code."  Id.6
     In his brief Flatow contends that the district court incor-
rectly interpreted the scope of his relinquishment of attach-
ment rights under the Victims Protection Act to include 
Iranian commercial assets within the United States that are 
outside the custodial control of the Treasury Department and 
____________
     6   The district court also issued a protective order that Flatow does
not challenge, requesting only that the scope of the order be coextensive 
with the scope of relinquishment of attachment rights under the Victims
Act s 2002.  Appellant's Br. at 6, 34.
of no governmental interest to the United States.  He main-
tains that the district court's interpretation destroys Con-
gress's intent to provide claimants a meaningful chance to 
satisfy punitive damage awards.  Specifically, Flatow con-
tends that his relinquishment of attachment rights did not 
destroy his right to attach two categories of Iranian 
government-controlled commercial property:  (1) assets that 
may not leave the United States without a license, over which 
Iran continues to enjoy unregulated, domestic, commercial 
control, and (2) assets within the pre-approved exceptions to 
the federal blocking program.

     At oral argument, however, the parties clarified that the 
sole legal issue presented with regard to the subpoena is 
whether Flatow's election under s 2002(a)(2)(D) of the Vic-
tims Protection Act required a relinquishment of Iranian 
property that is licensed by the federal government.  On de 
novo review, see In re Sealed Case, 146 F.3d 881, 883 (D.C. 
Cir. 1998), we hold that the district court properly interpreted 
"regulated" Iranian property under the IEEPA and appropri-
ately limited the scope of the subpoena pursuant to that 
interpretation.  Because Flatow has conceded that the scope 
of the subpoena is not otherwise at issue, we need not address 
any abuse of discretion challenges to the district court's 
order.

     The district court's modification of the subpoena repeats 
the language of s 2002(a)(2)(D) of the Victims Protection Act, 
which refers to 28 U.S.C. s 1610(f)(1)(A).  Section 
1610(f)(1)(A) provides that:

     Notwithstanding any other provision of law ... and 
     except as provided in subparagraph (B), any property 
     with respect to which financial transactions are prohibit-
     ed or regulated pursuant to section 5(b) of the Trading 
     with the Enemy Act (50 U.S.C. App 5(b)), section 620(a) 
     of the Foreign Assistance Act of 1961 (22 U.S.C. 
     s 2370(a)), sections 202 and 203 of the International 
     Emergency Economic Powers Act (50 U.S.C. 1701-1702), 
     or any other proclamation, order, regulation, or license 
     issued pursuant thereto, shall be subject to execution or 
     
     attachment in aid of execution of any judgment relating 
     to a claim for which a foreign state ... claiming such 
     property is not immune under section 1605(a)(7).
     
28 U.S.C. s 1610(f)(1)(A) (emphasis added).

     The scope of Flatow's relinquishment of attachment rights 
pursuant to s 1610(f)(1)(A) turns then on the meaning of the 
phrase "transactions [that] are prohibited or regulated" under 
IEEPA.  A brief discussion of regulations promulgated pur-
suant to IEEPA makes clear that the district court properly 
narrowed the subpoena to exclude Iranian property subject to 
license by the federal government.

     Acting pursuant to IEEPA's national emergency powers, 
President Carter, in response to the Iranian hostage crisis, 
declared a national emergency on November 14, 1979, and 
issued a series of Executive Orders that, among other things, 
blocked the removal or transfer of all Iranian property sub-
ject to U.S. jurisdiction.  See Dames & Moore v. Regan, 453 
U.S. 654, 663 (1981).  The President authorized the Treasury 
Department to promulgate regulations carrying out the block-
ing order.  Id.  Consequently, the Department's Office of 
Foreign Asset Control ("OFAC") administers two regulatory 
programs involving Iranian property:  the Iranian Assets 
Control Regulations ("IACR") and the Iranian Transactions 
Regulations ("ITR").  See 31 C.F.R. Pts. 530, 560 (1980).  
The IACR broadly prohibits unauthorized transactions involv-
ing property in which Iran has any interest.  31 C.F.R. 
s 535.201.  Such property may not be transferred, paid, 
exported, withdrawn, or otherwise dealt in except as provided 
by OFAC.  Id.  Unless authorized by a license issued by 
OFAC, any transaction within the terms of the IACR is 
prohibited.  31 C.F.R. s 535.101.  Pursuant to the Algiers 
Accords, the Treasury Department established a general 
license that authorized post-1981 transactions "in which Iran 
or an Iranian entity has an interest."  31 C.F.R. s 535.579.  
The second regulatory program, the ITR, confirms the broad 
reach of OFAC's Iranian sanctions programs by establishing 
controls on Iranian trade, investments, and services.  See 31 
C.F.R. Pt. 560.  However, the ITR does not apply to certain 

categories of transactions, such as personal communications, 
donations of particular humanitarian articles, and informa-
tional materials.  50 U.S.C. s 1702(b);  31 C.F.R. s 560.210.  
As under the IACR, there is a general prohibition under the 
ITR of unauthorized transactions, coupled with specific licens-
es permitting certain kinds of transactions.  31 C.F.R. 
ss 560.505-560.535.

     The fact that a transaction is authorized by an OFAC 
license confirms that it is "regulated" by IEEPA and by 
regulations or licenses issued pursuant thereto.  Cf. Regan v. 
Wald, 468 U.S. 222, 233-34 (1984).  By the plain terms of the 
Treasury Department's regulations, the IACR establishes 
that virtually all property subject to the jurisdiction of the 
United States in which Iran has any interest is either prohib-
ited or subject to a license of the United States.  31 C.F.R. 
s 535.101.  Flatow's contention that the district court should 
have held that the government was collaterally estopped from 
claiming in its Notice of November 22, 2000, supra note 3, 
that he cannot attach licensed Iranian property was first 
raised in his reply brief, and thus we do not address it.  See, 
e.g., Steel Joist Inst. v. OSHA, 287 F.3d 1165, 1166 (D.C. Cir. 
2002).

     Accordingly, we dismiss Flatow's contention that he is 
entitled to post-judgment interest on his punitive damages 
award for lack of jurisdiction and vacate the district court's 
opinion on that issue.  We affirm the district court's interpre-
tation of "regulated" Iranian property under IEEPA and the 
order limiting the subpoena to this legal interpretation and the 
corresponding protective order.

                                                              