     11-1990-cv
     Yugoimport v. Republic of Croatia, Republic of Slovenia


 1                          UNITED STATES COURT OF APPEALS

 2                              FOR THE SECOND CIRCUIT

 3                                  August Term, 2012

 4      (Argued: August 29, 2012               Decided: February 10, 2014)

 5                             Docket No. 11-1990-cv

 6   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

 7   THE BANK OF NEW YORK,
 8             Interpleader-Plaintiff,
 9
10                     v.
11
12   YUGOIMPORT,
13             Interpleader-Defendant-Appellant,
14
15                     v.
16
17   REPUBLIC OF CROATIA, REPUBLIC OF SLOVENIA,
18             Interpleader-Defendants-Appellees.
19
20   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
21
22   B e f o r e:      WINTER, SACK, and RAGGI, Circuit Judges.

23         Appeal from an order of the United States District Court for

24   the Southern District of New York (Alvin K. Hellerstein, Judge)

25   granting summary judgment to the Republics of Croatia and

26   Slovenia.    The Bank of New York commenced this interpleader

27   action to determine ownership of funds held in an account frozen

28   pursuant to executive order during the Bosnian War.        The district

29   court found that the depositor was an agency of the former

                                           1
 1   Socialist Federal Republic of Yugoslavia and that the funds were

 2   subject to division among the Yugoslav successor states pursuant

 3   to a multilateral treaty.   Yugoimport, a Serbian instrumentality

 4   purporting to be sole successor-in-interest of the original

 5   depositor, appeals.   We affirm.
 6
 7                                   RICHARD A. JACOBSEN, Orrick,
 8                                   Herrington & Sutcliffe LLP, New
 9                                   York, NY, for Interpleader-
10                                   Defendant-Appellant.
11
12                                   BOAZ S. MORAG, Cleary Gottlieb
13                                   Steen & Hamilton LLP, New York, NY,
14                                   SAMUEL SPITAL (Richard L.
15                                   Mattiaccio, on the brief), Squire,
16                                   Sanders & Dempsey LLP, New York,
17                                   NY, for Interpleader-Defendants-
18                                   Appellees.
19
20   WINTER, Circuit Judge:

21        The Bank of New York commenced this interpleader action to

22   determine ownership of $2,551,785.37 plus interest held on

23   deposit in an account in the name of the Federal Directorate of

24   Supply and Procurement (“FDSP”), an entity organized under the

25   laws of the former Socialist Federal Republic of Yugoslavia

26   (“SFRY”).   The account was frozen in 1992 pursuant to executive

27   order during the Bosnian War.

28        The Interpleader-Defendants, Yugoimport and the Republics of

29   Croatia and Slovenia, all -asserted competing claims to the

30   funds.   Yugoimport, a Serbian entity, claimed full ownership of

31   the disputed funds as successor-in-interest to the FDSP.   The

                                        2
 1   Republics of Croatia and Slovenia contend that the funds should

 2   be divided among the states succeeding the SFRY pursuant to a

 3   multilateral treaty, the Succession Agreement.    See Agreement on

 4   Succession Issues Between the Five Successor States of the Former

 5   State of Yugoslavia, June 29, 2001, 41 I.L.M. 3 (2002).     The

 6   district court granted summary judgment to the Republics.      We

 7   hold that interpretation of the Succession Agreement is governed

 8   by the Vienna Convention and that the FDSP was an agency of the

 9   SFRY.    As such, the funds are subject to division under that

10   Agreement.    We, therefore, affirm.

11                                 BACKGROUND

12   a)   Historical Context

13           We summarize only the facts relevant to this appeal.   Those

14   seeking a more detailed account should go to the district court’s

15   opinion.    Bank of N.Y. v. Yugoimport SDPR J.P., 780 F.Supp.2d

16   344, 346-49 (S.D.N.Y. 2011).

17           This case arises from the violent breakup of the SFRY.      The

18   ethnic, racial, and religious tensions of the Balkans, and the

19   consequences of these tensions spanning generations, have been

20   the subject of commentary so extensive and well-known as not to

21   require citation.    While somewhat controlled after World War II,

22   these tensions erupted into bloodshed with the weakening of

23   communist states in the 1980's.    Beginning in 1989, the


                                        3
 1   constituent states of the SFRY sought independence, leading to

 2   nearly a decade of armed conflict.   Slovenia formally declared

 3   independence on June 25, 1991.   Croatia, Bosnia-Herzegovina, and

 4   Macedonia followed suit shortly thereafter.   See Yucyco, Ltd. v.

 5   Republic of Slovenia, 984 F. Supp. 209, 212- 213 (S.D.N.Y. 1997)

 6   (describing the collapse).   On April 27, 1992, the remaining

 7   territories, Serbia and Montenegro, issued a joint declaration

 8   formally dissolving the SFRY and establishing themselves as the

 9   “Federal Republic of Yugoslavia” (“FRY”).   See id.   The FRY

10   purported to be the sole successor of the SFRY.   See id.    The

11   other Republics disputed the FRY’s claim, and the United Nations

12   Security Council issued a resolution declaring that the claim was

13   not “generally accepted” by the world community. U.N.S.C. Res.

14   757, U.N. Doc. S/RES/757, 31 I.L.M. 1427, 1454 (May 30, 1992).

15   Additionally, the Security Council denied the FRY’s request to

16   step into the shoes of the SFRY for the purpose of continuing the

17   SFRY’s U.N. membership.   U.N.S.C. Res. 777, U.N. Doc. S/RES/777,

18   31 I.L.M. 1427, 1473 (Sept. 19, 1992).

19        In December 1995, due in large part to American efforts and

20   armed NATO intervention, representatives of Bosnia-Herzegovina,

21   Croatia, and the FRY signed the Dayton Accords, bringing a

22   qualified measure of peace to the region.   The three Republics

23   agreed to recognize and respect each other’s sovereignty and


                                      4
 1   authorized the deployment of a U.N.-led multinational military

 2   implementation force in Bosnia.   See General Framework Agreement

 3   for Peace in Bosnia and Herzegovina (“Dayton Accords”), Bosn. &

 4   Herz.-Croat.-Fed. Repub. Yugo., Dec. 14, 1995, 35 I.L.M. 75, 89,

 5   92 (1996).

 6        Because the Dayton Accords did not address a number of

 7   issues arising from the breakup of the SFRY, Annex 10 of the

 8   Accords established the Office of the High Representative to

 9   assist in the implementation of the peace.    Id. at 147.   The High

10   Representative was to be appointed by the U.N. and was charged

11   with overseeing the creation of mutual agreements among the

12   signatory states concerning various issues.   Id.    One such issue

13   was distribution of financial assets of the SFRY.    See U.N.S.C.

14   Res. 1022, U.N. S/RES/1022, 35 I.L.M. 259, 260 (November 22,

15   1995).

16        After the signing of the Dayton Accords, armed conflict

17   between the FRY and Kosovars and continuing sole-successor

18   sentiments in the FRY stymied the ability of the signatory states

19   to reach an agreement.   See Carsten Stahn, The Agreement on

20   Succession Issues of the Former Socialist Federal Republic of

21   Yugoslavia, 96 Am. J. Int’l L. 379, 379 (2002).     On June 29,

22   2001, after NATO intervention in the Kosovo conflict and

23   political shifts weakened FRY sole-successor sentiments, the

                                       5
 1   emerging successor states, under the supervision of the High

 2   Representative, finally came to an agreement.

 3   b)   The Succession Agreement

 4         The Succession Agreement recognizes five SFRY successor

 5   states –- Croatia, Slovenia, Bosnia-Herzegovina, Macedonia, and

 6   the FRY.    See Succession Agreement, 41 I.L.M. at 3.1          It contains

 7   seven Annexes, each of which deals with the division of

 8   particular types of assets and/or liabilities.           Annexes C and G

 9   are relied upon by the parties.

10         Annex C deals with the division of “financial assets and

11   liabilities.”     Article 1 of Annex C defines the financial assets

12   of the SFRY to include “accounts and other financial assets in

13   the name of the SFRY Federal Government Departments and

14   Agencies.” Id. at 25.      Article 5 provides that SFRY’s foreign

15   financial assets, including funds held in foreign banks, shall be

16   distributed in the following proportions:          Bosnia and Herzegovina

17   15.50%; Croatia 23.00%; Macedonia 7.50%; Slovenia 16.00%; and the

18   FRY 38.00%. Id. at 27.2      Whether the funds at issue here were

           1
            In June 2006, Serbia and Montenegro separated into independent states.
     Montenegro agreed that it would not be deemed a successor state to the SFRY or
     a party to the Succession Agreement.
           2
            Although Article 5(1) does not expressly include the assets of SFRY
     agencies in its definition of “foreign financial assets,” there is no dispute
     that the distribution scheme set forth in Article 5(2) applies to foreign-held
     assets of SFRY agencies. The general definition of “financial assets”
     embodied in Article 1 -- which includes the assets of SFRY agencies -- applies
     to the foreign financial assets addressed in Article 5. Succession Agreement,
     41 I.L.M. at 25.

                                           6
 1   held in the name of an SFRY “agency” -- i.e. FDSP -- for purposes

 2   of the Succession Agreement is the principal issue in this

 3   appeal.

 4         Annex G deals with private property.   Article 1 thereof

 5   states that “[p]rivate property and acquired rights of citizens

 6   and other legal persons of the SFRY shall be protected by

 7   successor States in accordance with the provisions of this

 8   Annex.”   Id. at 35.    We mention this provision only because

 9   Yugoimport attaches importance to it.    However, if the funds were

10   held in the name of an SFRY agency, Annex G would be

11   inapplicable; if not, Yugoimport would succeed on this appeal

12   even without Annex G.

13   c)   The FDSP/Yugoimport

14         We trace the history of Yugoimport in mind-numbing detail

15   because the nature of its governance and functions is critical –-

16   decisive, actually –- to the disposition of this appeal.

17         We begin with a summary that will suffice for casual

18   readers, who can then move on to the next section.    Yugoimport

19   functioned primarily as an arms dealer for the successive

20   sovereign states referred to generally as Yugoslavia, from 1949

21   until the events giving rise to this case.    It was owned,

22   controlled, managed, and supervised at all times by the

23   government -- in particular, by officials responsible for

24   national defense.   Its earnings were put to public purposes.

                                        7
 1        We now turn to the details.         The original Yugoimport was

 2   created on June 27, 1949 by the Federal People’s Republic of

 3   Yugoslavia (the “FPRY”).3      Basic Law on State Business

 4   Enterprises (Act No. 5585/49)(June 27, 1949).          Its enabling

 5   statute described it as “[a] state business . . . of state-wide

 6   significance” created to engage in the “import and export of all

 7   types of goods.”     Id. arts. 1, 3.      Yugoimport’s initial assets

 8   were provided by the FPRY’s Minister of Finance, id. art. 2, and

 9   it operated under the administrative and operational supervision

10   of the FPRY’s Ministry of Foreign Trade.         Id. art. 4.

11        On July 28, 1971, after the FPRY became the SFRY, a new law

12   established the basic form and substance of SFRY agencies.             See

13   Law on Organizational Structure and Scope of Operations of

14   Federal Administration Bodies and Federal Organizations, art. 1

15   (Act No. 1045/71) (July 28, 1971) (hereinafter referred to as the

16   “Law on Agencies”).     One such agency was the Federal Secretariat

17   of National Defense.      Id. arts. 3, 5.     In 1974, the SFRY amended

18   the Law on Agencies in several ways.         See Act on the Amendment of

19   the Act on the Organization and Scope of Functions of Federal

20   Administrative Authorities and Federal Organizations (Act No.

21   21/74) (April 26, 1974) (hereinafter referred to as the “Amending



          3
            The FPRY was the predecessor state of the SFRY. It existed from 1946
     to 1963. Like the SFRY, the FPRY was a socialist state headed by Josip Broz
     Tito from 1963 to 1980.

                                          8
 1   Act”).   Article 3 of the Amending Act set forth amendments

 2   pertaining to the SFRY Federal Secretariat of National Defense.

 3   One amendment merged Yugoimport into a new sub-agency known as

 4   the “Federal Directorate of Trade and Special Purpose Commodity

 5   Reserves” or the “Federal Office for Trading and Reserves of

 6   Special Purpose Goods” (the “Federal Office for Trading and

 7   Reserves”).   See id. art. 3; Statute of the Public Enterprise

 8   “Jugoimport-SDPR,” art. 2 (FRY Gazette No. 89/9) (Jan. 27, 1997)

 9   (FRY) (describing the merger in 1974 of Yugoimport into the

10   Federal Office for Trading and Reserves).    The Amending Act

11   further stated that the Federal Office for Trading and Reserves

12   was “established within the Federal Secretariat of National

13   Defense for the purpose of performing tasks associated with the

14   sale and accumulation of commodity reserves . . . for the

15   national defense.”    Amending Act, art. 3 (Act. No. 21/74).    In

16   other words, the Federal Office for Trading and Reserves was the

17   SFRY’s arms dealer.

18        In 1991, the SFRY reconstituted the Federal Office for

19   Trading and Reserves as the Federal Directorate for Commerce of

20   Special Purpose Products.   See Law on the Federal Directorate for

21   Commerce of Special Purpose Products, art. 24 (SFRY Gazette No.

22   11/91) (1991).   It is undisputed that sometime between 1991 and

23   1996, the Federal Directorate for Commerce of Special Purpose

24   Products came to be known as the Federal Directorate of Supply

                                       9
 1   and Procurement, or the FDSP.4       For the sake of clarity, we will

 2   refer to the entity solely as the FDSP and its enabling law as

 3   the “FDSP Enabling Law” or simply the “Enabling Law.”

 4        The Enabling Law that created the FDSP set forth its

 5   function and management structure.        See id.    The Enabling Law

 6   also required management, in agreement with the Federal Executive

 7   Council, to establish within six months a governing “statute”

 8   that would describe with greater particularity the FDSP’s

 9   business activities and administration.         Id. arts. 16, 17, 23.

10   Once created, the statute could be changed only with approval of

11   the Federal Executive Council.       Id. art. 4.     The statute

12   promulgated thereunder, Statute of the Federal Directorate for

13   Commerce of Special Purpose Products (Act. No. 750-3) (May 8,

14   1991) (SFRY) (hereinafter referred to as the “FDSP Statute” or

15   “Statute”), is akin to articles of incorporation.           We draw upon

16   both the Enabling Law and the Statute to determine the defining

17   characteristics of the FDSP.

18


          4
            The parties agree that the Federal Directorate for Commerce of Special
     Purpose Products and the FDSP are the same entity, governed by the same
     organizational laws. Additionally, the 1996 statute reconstituting the FDSP
     as Yugoimport, discussed infra, states that Yugoimport “keeps up the legal
     continuity of the Federal Directorate of Supply and Procurement established
     with the Law on the Federal Directorate of Supply and Procurement (“Official
     Gazette of SFRY” 11/91).” Statute of the Public Enterprise “Jugoimport–SDPR,”
     art. 2 (FRY Gazette No. 89/9) (Jan. 27, 1997). Despite referring to the
     entity as the FDSP, the citation refers to the enabling law pursuant to which
     the Federal Directorate for Commerce of Special Purpose Products was
     established.

                                          10
 1        The primary function of the FDSP remained the procurement

 2   and trading of arms and military equipment on behalf of the SFRY.

 3   FDSP Enabling Law, art. 1 (11/91) (“The [FDSP] . . . performs

 4   activities that are in the interest of the . . . [SFRY] in the

 5   area of foreign trade commerce with armaments and military

 6   equipment.”); see also FDSP Statute, art. 8 (Act No. 750-3)

 7   (describing with greater particularity the FDSP’s activities “in

 8   the area of armaments and military equipment”).   The FDSP was

 9   allowed to undertake other lines of business subject to approval

10   from the Federal Secretariat for People’s Defense and only so

11   long as such undertakings did not impact its business dealings in

12   armaments and military equipment.    FDSP Enabling Law, art. 3

13   (11/91); FDSP Statute, art. 9 (Act No. 750-3).    The FDSP was

14   required to “direct its work in accordance with the plans for the

15   development and equipping of the military,” FDSP Statute, art. 12

16   (Act No. 750-3), and it was the FDSP’s “responsibility . . . to

17   organize and prepare for action in cases of immediate war danger

18   . . . [and] to perform other tasks and activities that are in the

19   interest of general people’s defense.”   Id. art. 38.     The Federal

20   Secretariat for People’s Defense supervised the FDSP’s

21   performance of national-interest functions, and the FDSP

22   submitted quarterly and annual reports to the Federal Secretariat

23   for this purpose.   FDSP Enabling Law, art. 19 (11/91).    Due to



                                     11
 1   the nature of the FDSP’s work, the Enabling Law required that all

 2   employee positions within the FDSP be staffed exclusively with

 3   active military personnel.    Id. art. 18.

 4        The FDSP was organized as a juridical entity with the

 5   “status of a legal person.”   Id. art. 4.    It guaranteed its

 6   obligations with its own property, FDSP Statute, art. 2 (Act No.

 7   750-3), and it was empowered to act “on its own behalf and own

 8   account” and on others’ behalf and account pursuant to contract.

 9   FDSP Enabling Law, arts. 7, 8 (11/91); FDSP Statute, art. 10 (Act

10   No. 750-3).   The mutual rights and obligations of the FDSP and

11   “those on whose behalf . . . it perform[ed] foreign trade

12   commerce and services . . . [were] determined by contract.”        FDSP

13   Enabling Law, art. 8 (11/91).

14        The FDSP was managed by a Director and a Council (the “FDSP

15   Council”), both of which were appointed, supervised, or removed

16   by the Federal Executive Council.     Id. arts. 9-15.   The FDSP

17   Council consisted of a representative of each of the following:

18             1) Federal Secretariat for People’s Defense
19             2) Federal Secretariat for Foreign Affairs
20             3) Federal Secretariat for Foreign Economic
21             Relations
22             4) Yugoslav National Bank
23             5) The Yugoslav Association of Industries for
24             Armament and Military Equipment; and
25             6) A representative from the employees of the
26             [FDSP].
27
28   FDSP Statute, art. 24 (Act. No. 750-3).      The Director was also a


                                      12
 1   member of the FDSP Council.    FDSP Enabling Law, art. 11 (11/91);

 2   FDSP Statute, art. 25 (Act. No. 750-3).

 3        The Director was responsible for, among other things,

 4   business decisions, hiring and staffing decisions, and managing

 5   the FDSP’s preparation for national defense.    FDSP Statute, art.

 6   22 (Act. No. 750-3).   The FDSP Council was responsible for

 7             1) Pass[ing] the strategic plan;
 8             2) Pass[ing] a plan for foreign trade
 9             commerce and a financial plan;
10             3) Pass[ing] a decision for the permanent and
11             long-term investments of the [FDSP];
12             4) Decid[ing] upon the long-term acquiring of
13             funds; [and]
14             5) Perform[ing] other tasks defined by the
15             law . . .
16
17   Id. art. 26.   The FDSP Council was also empowered to “decide[] on

18   changes in status (splitting, merging, and acquiring)” subject to

19   approval from the Federal Executive Council.    Id. art. 3.

20        The FDSP’s earnings were to be used to “replenish the funds

21   spent and to provide for personal, common, and general social

22   needs and responsibilities.”   Id. art. 16.    If it produced a net

23   surplus or profit in a given year, the Director and FDSP Council

24   were to determine the division of profits in the course of

25   preparing the annual report.   Id. art. 19.    If the FDSP

26   experienced a liquidity problem or a loss, the FDSP Council was

27   to inform the Federal Secretariat for People’s Defense and the

28   Federal Executive Council.    Id. art. 21.


                                      13
 1         Because the FDSP operated out of Belgrade, Serbia, the FRY

 2   was able to control its physical assets during the armed conflict

 3   described supra.     In 1996, the FRY formally reconstituted the

 4   FDSP as Yugoimport SDPR.       The government enacted a new

 5   organizational law in September 1996, and the Belgrade Business

 6   Court issued a decision purporting to merge the two entities in

 7   early 1997.    See Law on the Public Enterprise “Jugoimport-SDPR”

 8   (PR. Nr. 291) (Official Gazette of SRY No. 46/96) (Sept. 27,

 9   1996) (FRY).    Like the FDSP, Yugoimport SDPR was created pursuant

10   to an enabling “law” and its functions and management structure

11   were set out more precisely in a governing “statute” enacted by

12   the managing board.      See Statute of the Public Enterprise

13   “Jugoimport-SDPR,” preamble (FRY Gazette No. 89/9) (Jan. 27,

14   1997) (FRY), promulgated under Law on the Public Enterprise

15   “Jugoimport-SDPR,” (Official Gazette of SRY No. 46/96).             The

16   primary function of Yugoimport SDPR remained the procurement and

17   trading of weapons and military equipment.          Law on Jugoimport-

18   SDPR, arts. 2, 4 (46/96).5       Initial funding was provided by the

19   state, id. art. 5, and the federal government was empowered to:

20   (i) approve the governing statute and any changes made to the



           5
            According to the governing statute, “Jugoimport-SDPR deal[t] with
     other activities as well.” Statute on Jugoimport–SDPR, art. 4. The statute
     listed several hundred activities, ranging from the “production, processing
     and refrigeration of animal meat” to publishing books and bookbinding to the
     “retail trade of household appliances, radios, and tv sets.” Id.

                                          14
 1   statute thereafter; (ii) the development plan and working

 2   program; (iii) any increases or decreases in basic capital; (iv)

 3   any plans to acquire or sell real estate; (v) annual financial

 4   plans and investment decisions; and (vi) any changes to the

 5   organizational structure.        Id. art. 15.

 6           Yugoimport SDPR was managed by a Director, a Managing Board,

 7   and a Supervisory Board.        Id. art. 8.   The Director was appointed

 8   and subject to dismissal by the federal government.            The Managing

 9   Board consisted of eight members, five of which were appointed

10   and subject to dismissal by the federal government.            Id. arts. 9,

11   14.6        And the Supervisory Board consisted of a president,

12   appointed and subject to dismissal by the federal government, and

13   two members.        Id. arts. 12, 17, 20.   The enabling law permitted

14   [Yugoimport] to be organized as a “stock-sharing company,” but

15   required that the state retain at least 51 percent ownership.

16   Id. art. 16.

17           Following the dissolution of the FRY, Yugoimport has

18   continued to operate in Serbia, presumably reorganized under

19   Serbian law or adopted thereunder.

20   d)     The Disputed Funds

21           In 1991, the FDSP opened a deposit account with the Bank of

22   New York.        On May 30, 1992, the United States, pursuant to an

             6
            The remaining three members were elected by Yugoimport SDPR employees.
     Id. arts. 9, 14.

                                          15
 1   Executive Order issued by President George H.W. Bush, froze “all

 2   property, and interests in property, in the name of the [SFRY] or

 3   the [FRY] . . . in the United States,” including property in the

 4   name of their “agencies, instrumentalities and controlled

 5   entities, and any person acting or purporting to act for or on

 6   behalf of any of the foregoing.”     Exec. Order No. 12808, 57 F.R.

 7   23299, Sec. 2, 4(c) (May 30, 1992).    On July 20, 1992, the Office

 8   of Foreign Assets Control, a division of the Department of

 9   Transportation, published a notice containing a list of “entities

10   owned or presumed to be controlled by the [FRY].”    Office of

11   Foreign Assets Control General Notice No. 1, 57 F.R. 32051-02

12   (July 20, 1992).   The FDSP was on the list.   Id.   The asset

13   freeze remained in place until February 2003.    This litigation

14   commenced shortly thereafter.

15   e)   Procedural History

16         In light of Yugoimport’s and the Republics’ competing claims

17   of ownership of the funds, the Bank of New York filed this

18   interpleader action on April 14, 2003 in New York state court.

19   Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §§

20   1441(d) and 1446, Slovenia removed the case to the Southern

21   District of New York, where it was initially assigned to Judge

22   Charles S. Haight.

23



                                     16
 1        The bank deposited the disputed funds into the district

 2   court’s registry and, on June 2, 2004, obtained a discharge from

 3   this action.    Judge Haight ordered limited discovery on the issue

 4   of the FDSP’s status as an SFRY agency, which is of course

 5   critical to the application of Annex C of the Succession

 6   Agreement.    On July 31, 2006, the Republics moved for summary

 7   judgment or, in the alternative, for a stay to allow the Standing

 8   Joint Committee under the Succession Agreement to make a

 9   determination regarding whether the funds were subject to

10   division.7   On September 22, 2006, Yugoimport cross-moved for

11   summary judgment and opposed the Republics’ motion to stay,

12   arguing that it was not subject to the jurisdiction of the

13   Standing Joint Committee.       On May 11, 2007, Judge Haight stayed

14   the case so that the Standing Joint Committee could decide the

15   issue.   Bank of New York v. Yugoimport SDPR J.P., No. 03 Civ.

16   9055, 2007 WL 1378426, at *10-11 (S.D.N.Y. May 11, 2007)

17   (hereinafter “Yugoimport I”).



          7
            Article 5 of the Succession Agreement sets forth dispute-resolution
     methods that the successor states are to use in the event of disagreement:
                 If the differences [over interpretation] cannot be
                 resolved . . . the States concerned shall either (a)
                 refer the matter to an independent person of their
                 choice, with a view to obtaining a speedy and
                 authoritative determination of the matter . . .; or
                 (b) refer the matter to the Standing Joint Committee.

     41 I.L.M at 5. The Standing Joint Committee, established by Article 4 of the
     Succession Agreement, consists of senior representatives of each successor
     state. Id. at 4.

                                          17
 1           In the fall of 2008, the case was reassigned to Judge Alvin

 2   K. Hellerstein, who lifted the stay because, in the interim, the

 3   successor states had not appointed any members to the Standing

 4   Joint Committee and it had never met.      On April 29, 2011, the

 5   district court granted the Republics’ motion for summary judgment

 6   and held that the funds were to be divided among the successor

 7   states.    It based this holding on its conclusion that Yugoimport

 8   was an agency, as a matter of law, under Annex C of the

 9   Succession Agreement.    Bank of New York v. Yugoimport SDPR J.P.,

10   780 F. Supp. 2d 344 (S.D.N.Y. 2011) (hereinafter “Yugoimport

11   II”).

12                                 DISCUSSION

13           We review a grant of summary judgment de novo.   K&A

14   Radiologic Tech. Serv’s, Inc. v. Comm’r of the Dep’t of Health of

15   New York, 189 F.3d 273, 278 (2d Cir. 1999) (citing Bogan v.

16   Hodgkins, 166 F.3d 509, 511 (2d Cir. 1999)).

17   a)   Application of the Succession Agreement

18           When subject matter jurisdiction is based on the Foreign

19   Sovereign Immunities Act (the “FSIA”), 28 U.S.C. §§ 1441(d),

20   1446, 1603(a), we apply the choice-of-law rules of the forum

21   state, here New York, with respect to all issues governed by

22   state substantive law.    Barkanic v. Gen. Admin. of Civil Aviation

23   of the People’s Republic of China, 923 F.2d 957, 959 (2d Cir.



                                       18
 1   1991).8   New York courts adopt a “center of gravity” approach to

 2   choice-of-law questions in contract cases.          This approach

 3   requires application of the law of the jurisdiction with the most

 4   significant interest in, or relationship to, the dispute.             Lazard

 5   Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1539 (2d

 6   Cir. 1997) (Brink’s Ltd. v. South African Airways, 93 F.3d 1022,

 7   1030-1031 (2d Cir. 1996) (citing In re Allstate Ins. Co. &

 8   Stolarz, 81 N.Y.2d 219, 227 (1993))); Auten v. Auten, 308 N.Y.

 9   155, 160-61 (1954).      To determine the jurisdiction with the

10   greatest interest in the dispute, New York courts consider “a

11   spectrum of significant contacts, including the place of

12   contracting, the places of negotiation and performance, the

13   location of the subject matter, and the domicile . . . of the

           8
             The FSIA, 28 U.S.C. §§ 1330, 1332, 1391(f), 1441(d), 1602-1611, grants
     foreign sovereigns general immunity from suit in the U.S., id. § 1604, unless
     the action falls under one of several enumerated exceptions. Id. §§ 1605-
     1607. Where an exception applies, district courts have original jurisdiction
     over the action, id. § 1330, and if the action was brought in state court, the
     foreign sovereign may remove it to the district court of the district
     encompassing the state in which the action is pending. Id. § 1441(d).
           Congress did not intend that the FSIA establish substantive rules of
     liability. See Barkanic, 923 F.2d at 960 (quoting Verlinden v. Cent. Bank of
     Nigeria, 647 F.2d 320 (2d Cir. 1981), rev’d on other grounds, 461 U.S. 480
     (1983)). The FSIA operates as a pass-through, granting federal courts
     jurisdiction over otherwise ordinary actions brought against foreign states.
     It provides foreign states and their instrumentalities access to federal
     courts only to ensure uniform application of the doctrine of sovereign
     immunity. Id. at 960-961.
           Because the FSIA creates federal question jurisdiction but does not
     supply any substantive law of liability, see Verlinden, 461 U.S. at 491-93,
     choice of law problems arise in the FSIA context. The FSIA contains no
     express choice of law provision, but Section 1606 provides that a foreign
     sovereign “shall be liable in the same manner and to the same extent as a
     private individual under like circumstances.” 28 U.S.C. § 1606. In Barkanic,
     we found that the goal of like-treatment is best served by applying the state
     choice of law rules if the action is governed by state substantive law.
     Barkanic, 923 F.2d at 959.

                                          19
 1   contracting parties.”      Brink’s, 93 F.3d at 1031 (citing In re

 2   Allstate, 81 N.Y.2d at 227).       New York choice-of-law rules also

 3   “require[] the court to honor the parties’ choice [of law

 4   provision] insofar as matters of substance are concerned, so long

 5   as fundamental policies of New York law are not thereby

 6   violated.”    Woodling v. Garrett Corp., 813 F.2d 543, 551 (2d Cir.

 7   1987).

 8         The countries with the strongest interest in the present

 9   dispute are the successor states.         All of them, except for non-

10   party Macedonia, have ratified or acceded to the Vienna

11   Convention on the Law of Treaties (the “Vienna Convention”),

12   opened for signature May 23, 1969, 1155 U.N.T.S. 331, reprinted

13   in 8 I.L.M. 679, which contains a set of interpretive rules

14   regarding treaty interpretation.9         Prior to its dissolution, the

15   SFRY was also a party to the Vienna Convention.           Moreover,

16   Article 9 of the Succession Agreement provides that the



           9
            The Vienna Convention was adopted on May 22, 1969 by the United
     Nations Conference on the Law of Treaties.
     http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXIII~1&
     chapter=23&Temp=mtdsg3&lang=en (last visited Jan. 16, 2014). To date, 113
     nations are parties to the Convention and 45 nations are signatories to it.
     Id.
           The SFRY signed and ratified the Vienna Convention on May 23, 1969. Id.
     After the dissolution of the SFRY, Slovenia became a party on July 6, 1992;
     Croatia on October 12, 1992; Bosnia-Herzegovina on September 1, 1993; and
     Serbia on March 12, 2001. Id. All the pertinent countries became parties to
     the Vienna Convention prior to the finalization of the Succession Agreement on
     June 29, 2001. See Vienna Convention, art. 4, 1155 U.N.T.S. at 334
     (explaining that the Convention does not apply retroactively to treaties
     already in force); Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 308 n.5
     (2d Cir. 2000) (same).

                                          20
 1   Succession Agreement is to be interpreted in accordance with

 2   international law, of which the Vienna Convention is an integral

 3   part.    See supra n.9; Succession Agreement, art. 9, 41 I.L.M. at

 4   9.   Therefore, under New York’s choice-of-law principles, we

 5   apply the interpretative rules set forth in the Vienna

 6   Convention.

 7           To reiterate, the issue is whether the FDSP was an agency of

 8   the SFRY as that term is used in the Succession Agreement.     The

 9   term agency is not defined in the Succession Agreement, and

10   neither party has supplied a definition under SFRY law.      Under

11   the Vienna Convention, terms in a treaty are to be interpreted in

12   accordance with their ordinary meaning.    Vienna Convention, art.

13   31(1).    A term’s ordinary meaning is generally derived from the

14   language in which the treaty was drafted.    See id. art. 33

15   (providing that treaties authenticated in two or more languages

16   “are equally authoritative in each language,” and where language

17   divergences create ambiguity, courts should adopt the meaning

18   which “best reconciles the texts”).    The Succession Agreement was

19   drafted in English.    In at least one instance where a concept was

20   apparently not susceptible to English translation, i.e.,

21   “dwelling rights,” the Agreement provided Croatian, Slovenian,

22   and Serbian versions to clarify its meaning.    Succession

23   Agreement, Annex G, art. 6, 41 I.L.M. at 36.     The absence of such

24   non-English versions of the term agency indicates that there was

                                       21
 1   no intended meaning beyond the plain-language English definition.

 2   Therefore, we construe the term “agency” in accordance with

 3   generally-accepted international principles and its ordinary

 4   meaning in English.

 5        A principal-agent relationship is “created by express or

 6   implied contract or by law, in which one party (the agent) may

 7   act on behalf of another party (the principal) and bind that

 8   other party by words or actions.”      AGENCY (1), Black’s Law

 9   Dictionary (9th ed. 2009).   The fact that FDSP was organized as a

10   corporation does not preclude it from being deemed an SFRY agency

11   under the Succession Agreement.    The definition of “federal

12   agency” in Black’s Law Dictionary expressly includes government

13   corporations:   “A department or other instrumentality . . . ,

14   including a government corporation.”     AGENCY (3), Black’s Law

15   Dictionary (9th ed. 2009).

16        As the district court observed, “there is nothing

17   inconsistent, or even unusual, about a state employing the

18   corporate form to create an agency.”     Yugoimport II, 780 F. Supp.

19   2d at 356.   Quite the contrary, many governments have public

20   corporations that function as agencies.     As the district court

21   pointed out in an impressive string cite, almost all of the fifty

22   U.S. states have corporations that function as agencies.     Id. at

23   358; see also 1 Fletcher Cyc. Corp. § 57 (“A ‘public’ corporation



                                       22
 1   . . . may be defined as a corporation that is created by the

 2   state as an agency in the administration of civil government.”).

 3        For the purposes of determining which entities are entitled

 4   to sovereign immunity, the FSIA, the Canada State Immunity Act,

 5   and the European Convention on State Immunity all adopt broad

 6   definitions of agency that expressly include public corporations.

 7   See 28 U.S.C. § 1603(b) (“An ‘agency or instrumentality of a

 8   foreign state’ means any entity (1) which is a separate legal

 9   person, corporate or otherwise, and (2) which is an organ of a

10   foreign state or political subdivision thereof, or a majority of

11   whose shares or other ownership interest is owned by a foreign

12   state or political subdivision thereof . . .”); Canada State

13   Immunity Act, R.S.C. 1985, c. S-18, § 2; European Convention on

14   State Immunity Explanatory Report, Art. 27 ¶ 107-109 (noting that

15   “proceedings are frequently brought . . . not, strictly speaking,

16   against a State itself, but against [] legal entit[ies]

17   established under the authority of the State and exercising

18   public functions” and that such entities “may be . . . State

19   agencies, such as national banks or railway administrations”).

20        Under any reasonable understanding of the term, there is no

21   doubt that the FDSP was an agency of the SFRY, as the exhaustive

22   description of its origins, ongoing governance, and role showed.

23   It was, at all times, controlled by the government; its



                                    23
 1   management consisted of government officials; it was subject to

 2   supervision by the Federal Secretariat of People’s Defense and

 3   the Federal Executive Council; its earnings were to be used not

 4   only to “replenish[] funds spent” but also “to provide for

 5   personal, common, and general social needs and responsibilities”;

 6   and management could not alter the FDSP Statute without approval

 7   from the Federal Executive Council.   FDSP Enabling Law, arts. 19,

 8   12, 15, 16 (11/91); FDSP Statute, art. 16 (Act. No. 750-3).

 9   Moreover, the FDSP served a purpose so elemental to a nation-

10   state government as to render any suggestion that it was not an

11   SFRY agency risible.

12        A compelling reason for the existence of nation states is to

13   strengthen military defense, as the American experience

14   demonstrates.   The FDSP was the SFRY’s arms dealer, charged with

15   equipping the SFRY’s military forces according to strategic needs

16   determined by the SFRY.   It was required to coordinate its work

17   with the government’s military planners, and it was the FDSP’s

18   “responsibility” to supply the military to meet its perceived

19   needs.   Even in the SFRY –- a socialist state where many

20   enterprises were owned and controlled by the government –- the

21   FDSP was clearly a governmental agency because of the important

22   national-interest functions it performed.

23



                                     24
 1        In an effort to avoid this plain language interpretation,

 2   Yugoimport submitted several pieces of extrinsic evidence,

 3   including:    (i) an affidavit of Dr. Veroljub Dugalić, a former

 4   FRY Minister of Finance who served as a delegate in the

 5   negotiations of the Succession Agreement and as an FRY (and now

 6   as a Serbian) representative in the Annex C Committee on the

 7   Distribution of Financial Assets and Liabilities; (ii) documents

 8   purporting to represent the drafting history of the Succession

 9   Agreement; and (iii) letters submitted by the Ministers of

10   Finance of Bosnia-Herzegovina and Serbia.10         Yugoimport contends

11   that the district court was able to grant summary judgment only

12   by failing to consider or by not crediting this evidence.

13   However, none of these items could properly have been taken into

14   consideration under the interpretive rules set forth in the

15   Vienna Convention.

16        Under the Vienna Convention, external evidence may be

17   considered only in limited circumstances.          Article 31 provides

18                A treaty shall be interpreted in good faith
19                in accordance with the ordinary meaning to be
20                given to the terms of the treaty in their
21                context and in the light of its object and
22                purpose.

23   Vienna Convention, art. 31(1).


          10
             We need not reach the issue of whether this extrinsic evidence, even
     if considered, would be sufficient to alter the result. As discussed supra,
     the nature and functions of the FDSP may well have dictated the result we
     reach.

                                          25
 1        Yugoimport contends that the extrinsic evidence proffered is

 2   necessary to interpreting the Treaty in “context and in the light

 3   of its object and purpose.”    Id.    However, this argument fails

 4   because the Vienna Convention expressly sets forth in Article 31

 5   the materials that may be considered to discern that context and

 6   purpose.   Context may be evaluated by consulting:    (i) the text

 7   of the treaty, including its preamble and annexes; (ii) “[a]ny

 8   agreement relating to the treaty which was made between all the

 9   parties in connection with the conclusion of the treaty”; and

10   (iii) “[a]ny instrument which was made by one or more parties in

11   connection with the conclusion of the treaty and accepted by the

12   other parties as an instrument related to the treaty.”     Id. art.

13   31(2) (emphasis supplied).    A court may also consult:   “(a) [a]ny

14   subsequent agreement between the parties regarding the

15   interpretation of the treaty or the application of its

16   provisions; (b) [a]ny subsequent practice in the application of

17   the treaty which establishes the agreement of the parties

18   regarding its interpretation; and (c) [a]ny relevant rules of

19   international law.”   Id. art. 31(3) (emphasis supplied).    There

20   is an obvious preference of the Vienna Convention toward

21   consideration only of those materials that were ratified,

22   adopted, or somehow endorsed by all the treaty parties.      Because

23   the documents proffered by Yugoimport are not traced to all the


                                      26
 1   successor states, the district court should not have considered

 2   them or afforded them weight in determining the context of the

 3   treaty or its object and purpose.11

 4         Yugoimport next contends that such evidence is properly

 5   before the court because the treaty is ambiguous.            Article 32 of

 6   the Vienna Convention states:

 7               Recourse may be had to supplementary means of
 8               interpretation, including the preparatory
 9               work of the treaty and the circumstances of
10               its conclusion, in order to confirm the
11               meaning resulting from the application of
12               article 31 [ordinary-meaning analysis], or to
13               determine the meaning when the interpretation
14               according to article 31: (a) [l]eaves the
15               meaning ambiguous or obscure; or (b) [l]eads
16               to a result which is manifestly absurd or
17               unreasonable.
18
19   Vienna Convention, art. 32 (emphasis added).           Under this Article,

20   courts may consider certain, limited types of external evidence

21   only to confirm the ordinary meaning of the text, or where the

22   ordinary meaning is ambiguous or would lead to absurd results.

23   External evidence may not be admitted to create ambiguity where

24   there is none or to compel an interpretation different from the

25   text’s ordinary meaning.

26



           11
             Yugoimport also cites Article 31(4) for the proposition that “special
     meaning shall be given to a term if it is established that the parties so
     intended.” Id. art. 31(4). However, as discussed above there is no
     indication that the parties intended a special meaning for “agency.”

                                          27
 1         Yugoimport contends that the treaty is ambiguous because:

 2   (i) the term agency is undefined, and (ii) Annexes C and G, when

 3   read in conjunction, create an ambiguity.    We find that the

 4   Succession Agreement is not ambiguous in this regard.    A failure

 5   to include a precise definition of agency does not render the

 6   contract ambiguous with regard to the term “agency,” at least so

 7   far as a body intended to arm the SFRY’s military is concerned.

 8   Furthermore, we perceive no relevant conflict between Annexes C

 9   and G.   Annex C calls for the division of assets of governmental

10   agencies.    Annex G does not inform the definition of agency in

11   Annex C.    It provides that “private property” of legal persons

12   shall be respected.    Although Yugoimport may have been organized

13   as a legal person, it was a public corporation that functioned,

14   as intended, as an SFRY agency.    Under no discernible principles

15   were its funds “private property.”     Therefore, Annex G does not

16   dictate otherwise.

17   b)   An Afterword

18         Although the decisive issue on this appeal is disposed of

19   above, we address Yugoimport’s argument that its corporate form

20   shields it from application of Annex C of the Succession

21   Agreement.   Yugoimport contends that because the FDSP was

22   organized as a corporation, under United States federal common

23   law it is not subject to the Succession Agreement unless it is

24   deemed to be an “alter ego” of the SFRY.

                                       28
 1         Yugoimport relies principally on First National City Bank v.

 2   Banco Para El Comercio Exterior de Cuba (“Bancec”), 462 U.S. 611

 3   (1983).    At issue in Bancec was whether Citibank could maintain a

 4   counterclaim against Bancec, Cuba’s fully-owned foreign-trade

 5   agent, for actions taken against Citibank by the Cuban

 6   government.12    Bancec’s successor maintained that it was

 7   organized as an independent juridical entity under Cuban law and

 8   therefore could not be liable for actions of the Cuban

 9   government.     The Supreme Court agreed that “government

10   instrumentalities established as juridical entities distinct and

11   independent from their sovereign should normally be treated as

12   such.”     Id. at 626-27.   The Court refused, however, to treat the

13   Cuban organizational law as decisive.         According “conclusive

14   effect to the law of the chartering state in determining whether

15   the separate juridical status of its instrumentality should be

16   respected would permit the state to violate with impunity the

17   rights of third parties under international law while effectively

18   insulating itself from liability in foreign courts.”            Id. at 621-


           12
             Bancec filed suit against Citibank in the Southern District of New
     York to recover on an unpaid letter of credit. Bancec had executed a series
     of contracts whereby it purchased sugar from another instrumentality of the
     Cuban government and then sold the sugar as export to a private company.
     Citibank issued the letter of credit on behalf of the private company as
     consideration for the sugar. Shortly after the issuance of the letter, Cuba
     nationalized all property belonging to American citizens and entities in Cuba,
     including Citibank’s branch offices in Cuba. When the letter of credit became
     due, Citibank credited the amount due to Bancec’s account but then applied the
     account balance to setoff the value of Citibank’s lost Cuban branches. After
     Bancec initiated the action, Citibank counterclaimed seeking setoff based on
     the Cuban government’s seizure of its assets. Id. at 613-16.

                                          29
 1   22.   The Court ruled that foreign instrumentalities organized

 2   under foreign law as independent juridical entities are entitled

 3   to a presumption of independence, but this presumption can be

 4   overcome by equitable veil-piercing or alter-ego analysis under

 5   federal common law.      Id. at 626-30.

 6         To the extent that Yugoimport’s arguments suggest that

 7   Bancec controls interpretation of the Succession Agreement as to

 8   whether FDSP was an “agency” of the SFRY, the argument fails.

 9   The purpose of treaty interpretation is to give effect to the

10   intent of the contracting states.         Bancec’s alter-ego analysis

11   applies to the unilateral acts of a single sovereign and attempts

12   to reconcile the oft-conflicting goals of giving respect to the

13   acts of other sovereigns while avoiding results that amount to

14   the rewarding of fraud.      Bancec’s analysis simply has nothing to

15   do with interpretation of the Succession Agreement.

16          Moreover, assuming the FDSP was organized as an independent

17   juridical entity or corporation,13 nothing in Bancec suggests

18   that the FDSP’s legal form insulates it from the Succession


           13
             This assumption is likely correct. The FDSP was organized as a
     juridical entity with the “status of a legal person.” FDSP Enabling Law, art.
     4 (11/91). It was empowered to act on its own behalf and enter into
     contracts, id. arts. 7, 8, and it guaranteed its obligations with its own
     property, FDSP Statute, art. 2 (Act. No 750-3). The organizational laws also
     suggest that the government intended for the FDSP to be funded by its own
     commercial activities. See id. art. 16 (providing that earnings were to be
     used to “replenish funds spent”); id. art. 21 (providing that the FDSP Council
     was to inform the Federal Secretariat for People’s Defense and the Federal
     Executive Council if the FDSP experienced a liquidity problem or a loss in any
     given year).

                                          30
 1   Agreement.    Such a result would be contrary to both corporate law

 2   and the principles of comity animating Bancec.           Bancec

 3   establishes two analytic components, a presumption of

 4   independence and alter-ego analysis, that operate in tandem.

 5         Contrary to Yugoimport’s suggestion, the Court’s concern

 6   about the diversion of an instrumentality’s assets was not

 7   motivated by a desire to protect instrumentalities for their own

 8   sake; the recognition of the independent status afforded to

 9   instrumentalities is derivative of, and incidental to, the

10   underlying purpose of the presumption, which is to give respect,

11   but not conclusive effect, to foreign sovereigns’ policy

12   decisions.    Id. at 626-27 (observing that the presumption is

13   based on “[d]ue respect . . . for foreign sovereigns” and

14   “principles of comity between nations”).14

15         The presumption may be overcome by alter-ego analysis, i.e.

16   if the instrumentality was so extensively dominated by the


           14
              As the Court explained, governments create juridical entities for a
     variety of important governmental purposes. Instrumentalities run as distinct
     economic enterprises are often exempt from the budgetary and personnel
     requirements applicable to other government agencies. Bancec, 462 U.S. at
     624. Such instrumentalities also enjoy a greater degree of flexibility and
     independence from political control than typical agencies. Id. By delegating
     certain activities to such instrumentalities, governments may easily waive
     sovereign immunity with respect to the instrumentalities’ activities, enabling
     third parties to deal with the instrumentality with confidence that judicial
     relief will be available should the need arise. Id. at 625. Most
     importantly, it is often easier to obtain large-scale financing using entities
     with distinct debt structures. Id. at 625-26. Disregarding corporate form
     would frustrate these objectives. In the case of a developing country,
     diversion of an instrumentality’s assets to satisfy debts of the sovereign
     could stymie investment and cause third-parties dealing with the
     instrumentality to demand government guarantees. See id.

                                          31
 1   sovereign that a principal-agent relationship existed and where

 2   respecting the corporate form of the instrumentality “blindly . .

 3   . would cause . . . injustice.”        Id. at 629, 632; see Frontera

 4   Res. Azerbaijan Corp. v. State Oil Co. of the Azerbaijan

 5   Republic, 582 F.3d 393, 400 (2d Cir. 2009).           The party seeking to

 6   overcome the presumption of independence bears the burden of

 7   proof.     Zappia Middle East Constr. Co. Ltd. v. Emirate of Abu

 8   Dhabi, 215 F.3d 247, 252 (2d Cir. 2000).          This burden evinces the

 9   measure of respect due foreign sovereigns.          Alter-ego analysis is

10   simply a back-stop measure that prevents foreign sovereigns from

11   using their business laws to immunize themselves from third-party

12   liability.15    It defies logic to apply it where, as here, there

13   is no third-party seeking redress and Bancec is relied upon

14   solely to shield the instrumentality from the foreign state that

15   owns it.

16         For the foregoing reasons, we hold that Bancec has no

17   bearing on the issue of whether the FDSP was an agency as that

18   term is used in the Succession Agreement.          And, because

19   Yugoimport cannot show as a matter of law that it was not an

20   agency, its motion for summary judgment was properly denied.

           15
             In Bancec, the Cuban government could not have brought suit in the
     U.S. without waiving its sovereign immunity with respect to counterclaims.
     Bancec, 462 U.S. at 630; see also 28 U.S.C. § 1607(c) (foreign states waive
     their sovereign immunity with respect to counterclaims “to the extent that the
     counterclaim does not seek relief exceeding in amount or differing in kind
     from that sought by the foreign state.”). Failure to apply alter-ego analysis
     would have permitted the Cuban government to circumvent Section 1607(c).


                                          32
1                               CONCLUSION

2        For the reasons stated herein, the district court’s order

3   and opinion are AFFIRMED.




                                    33
