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Weinstein v. Islamic Republic of Iran

United States Court of Appeals, District of Columbia Circuit

August 2, 2016

Susan Weinstein, individually as Co-Administrator of the Estate of Ira William Weinstein, and as natural guardian of plaintiff David Weinstein (minor), et al., Appellants
Islamic Republic of Iran, et al., Appellees

          Argued January 21, 2016

         Appeals from the United States District Court for the District of Columbia Nos. 1:00-cv-02601, 1:02-cv-01811, 1:08-cv-00520, 1:01-cv-01655, 1:08-cv-00502, 1:00-cv-02602, 1:14-mc-00648

          Meir Katz argued the cause for the appellants. Robert J. Tolchin, Steven T. Gebelin and Scott M. Lesowitz were with him on brief. Jeffrey A. Miller entered an appearance.

          Noel J. Francisco argued the cause for the garnishee-appellee Internet Corporation for Assigned Names and Numbers. Tara Lynn R. Zurawski and Ryan J. Watson were with him on brief.

          Benjamin C. Mizer, Principal Deputy Assistant Attorney General, United States Department of Justice, Beth S. Brinkmann, Deputy Assistant Attorney General, and Douglas N. Letter, Mark R. Freeman and Sonia K. McNeil, Attorneys, were on brief the for amicus curiae United States.

          Before: Garland, [*] Chief Judge, Henderson, Circuit Judge, and Randolph, Senior Circuit Judge.


          Karen LeCraft Henderson, Circuit Judge:

         The plaintiffs-victims of terrorist attacks and their family members-hold substantial unsatisfied money judgments against defendants Islamic Republic of Iran (Iran), Democratic People's Republic of Korea (North Korea) and Syrian Arab Republic (Syria) arising out of claims brought pursuant to the Foreign Sovereign Immunities Act (FSIA). To satisfy the judgments, the plaintiffs sought to attach Internet data managed by the Internet Corporation for Assigned Names and Numbers (ICANN) and, accordingly, served writs of attachment on ICANN. On ICANN's motion, the district court quashed the writs, finding the data unattachable under District of Columbia (D.C.) law. We affirm the district court but on alternative grounds.

         I. Background

         A. Technical

         This case requires substantial explanation of the sought-after data.[1] The plaintiffs initiated these proceedings by serving multiple writs of attachment on ICANN seeking the country-code top level domain names (ccTLD) and Internet Protocol (IP) addresses of Iran, Syria and North Korea, respectively. Neither the ccTLD nor the IP address lends itself to easy description.

         Both data are parts of the Internet, the "network of networks, " Am. Civil Liberties Union v. Reno, 929 F.Supp. 824, 844 (E.D. Pa. 1996), which is "comprised of numerous interconnected communications and computer networks connecting a wide range of end-users to each other.", Inc. v. Verio, Inc., 356 F.3d 393, 409 (2d Cir. 2004).[2] The IP address is the appropriate starting point. Every device connected to the Internet and every web page on the Internet is identified by an IP address. The IP address appears as a string of numbers separated by periods, for example, "" It identifies the location, "i.e., a particular computer-to-network connection" of an end-user's computer and also "serves as the routing address for . . . requests to view a web page." Id. The IP address is critical to the Internet's functioning in the same way a telephone number is essential to the functioning of the telecommunications system. One may dial a set of numbers to connect to other individuals through the telecommunications system and the same is true vis-à-vis an IP address and the Internet. Granted, an ordinary Internet end-user does not operate this way. For example, Google has the IP address "" but few would maintain that entering that address in an Internet browser is the most practical way to access the Google web page. Instead, most end-users simply type "" to access the Google web page.

         Because the numeric IP address is difficult to remember, the domain name system (DNS) was created to provide a more user-friendly Internet. At bottom, a "domain name" is the alphanumeric "Web page address[] that end users type into their browsers" and the DNS matches that name (i.e., "") "with the [IP] addresses of the servers containing the Web pages the users wish to access." Nat'l Cable & Telecommn's Ass'n v. Brand X Internet Servs., 545 U.S. 967, 987 (2005). Thus, much of the DNS's value lies in its ability to enable an end-user, with a domain name in hand, to access a desired IP address and, more importantly, its corresponding web page without in fact using the IP address. But unlike an IP address, "a domain name does not signal where a computer [or web page] is . . . located. . . . [A] domain name is not an address as typically understood but instead is a mark identifying a specific person's or organization's site on the Internet." Thomas v. Network Solutions, Inc., 176 F.3d 500, 503 n.2 (D.C. Cir. 1999). In order to reach the "site, " the user's domain name input must be "translate[d] . . . into [a] numerical IP address, " Register, 356 F.3d at 410-11 & n.14, i.e., the domain name must be "resolved, " Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 577 (2d Cir. 2000).

         Understanding the "resolving" process begins with breaking down an Internet web page name-i.e. a domain name ("")-into two parts. The first part appears after the last dot-the "top level domain" (TLD). As relevant here, there are two types of TLDs: generic TLDs and country code TLDs (ccTLDs). The former include ".com, " ".net" and ".org" whereas the latter are distinguished by a national, geographic or political association-for example, ".us" for the United States and, here, ".ir" for Iran, ".sy" for Syria and ".kp" for North Korea.[3] The second part precedes the last dot-the second level domain (SLD); i.e., "google" in the "" example.

         Broadly speaking, an Internet end-user searching for (the technical term is "querying") a domain name like "" reaches the web page in one of two ways depending on whether he already has visited that web page. In either case, his device ordinarily first sends the query to a nearby DNS "caching server" operated by the end-user's Internet service provider (ISP).[4] See Daniel Karrenberg, The Internet Domain Name System Explained for Non-Experts, in Internet Governance: A Grand Collaboration 23 (U.N. ICT Task Force 2004). The caching server knows the location of the web page if it has "cached" it, i.e., "remembered it . . . from a previous transaction." Id. at 24. In that case the query does not go beyond the caching server because it directs the end-user to the desired location. Id. Thus, once an end-user has visited ", " his caching server remembers the web page location for subsequent visits. And if the end-user has never visited the requested SLD-i.e., never visited ""-but has visited another ".com" web page (e.g., ""), the caching server recognizes the location of the TLD (".com"), asks it for the location of the SLD ("") and then routes the end-user accordingly. Id. at 26-27.

         An end-user can also locate a web page if he has not yet visited the web page or even its TLD. This way involves a caching server that is empty-it does not know the location of ".com, " and even less ", " because it has not yet cached them. But the caching server knows at least one thing: Pursuant to widely adopted pre-programmed DNS protocols, the server knows to query "a special set of authoritative servers" otherwise known as "the DNS root servers, " id. at 27-of which there are thirteen world-wide; namely, one "master root zone server, " which contains "the authoritative root zone file, "[5] and "12 duplicate root zone servers, " Name.Space, 202 F.3d at 577. In short, the caching server knows to go to the top of the DNS's "hierarchical tree structure." Id. These thirteen servers-the top of the tree- know the location of all authoritative TLD servers and thus the caching server can locate ".com, " ".ir" or any other TLD by querying the DNS root servers. Once one of the root servers tells the caching server the ".com" location, the caching server can query that TLD for all SLDs within it and does not have to revisit the root servers for subsequent web page searches within the ".com" TLD.[6] Thus the root servers form "a critical Internet chokepoint." A. Michael Froomkin, Wrong Turn in Cyberspace, 50 Duke L.J. 17, 50 (2000). To use the entire DNS, a caching server need know nothing more than the location of the DNS's thirteen root servers; the root servers, tied to the root zone file, permit any end-user to access all downstream domains.

         As relevant here, the DNS's "hierarchical tree structure, " Name.Space, 202 F.3d at 577, contains three levels-the thirteen root zone servers at the top, TLDs one level below and SLDs one level further below. Each level of the tree "registers" entities one level below. See Harold Feld, Structured to Fail: ICANN and the 'Privatization' Experiment, in Who Rules the Net?: Internet Governance and Jurisdiction 337-38 (Cato Inst. 2003). Thus, a TLD must be registered in the root servers' root zone file in order to be accessible to an end-user. The relationship between SLDs and TLDs is similar. An SLD registers within a TLD; thus, one can access Google only by searching for it in a TLD that it is registered within, i.e., the ".com" TLD. And, just as a particular TLD ensures that no duplicate domain name is registered within (i.e., the ".com" registry allows only one ""), the root zone file ensures that there is only one of each TLD (i.e., only one ".com"). When searched, that is the TLD to which the DNS root server directs an end-user. Because "the vast majority of Internet users, " via their ISP, query the root servers when searching for a particular TLD, "[t]he root [zone file] determines which TLDs are visible" to most Internet end-users world-wide. Wrong Turn in Cyberspace, 50 Duke L.J. at 46. Because an end-user cannot use the DNS to locate a particular web page without first accessing its TLD-i.e., an end-user cannot locate "" without first locating ".com"-the root zone file effectively enables an end-user to access most existing Internet web pages. Any TLD not "listed in the root . . . become[s] effectively invisible, " id. at 47, keeping both that TLD and its registered SLDs beyond the reach of a typical end-user.

         With the DNS background established, we turn to ICANN. From shortly after its inception in 1983 until 1998, the root zone file and the DNS were administered by "private hands" under "loose federal supervision." Harold Feld, Structured to Fail: ICANN and the 'Privatization' Experiment, in Who Rules the Net?: Internet Governance and Jurisdiction 335 (Cato Inst. 2003). In 1998 the United States government transferred much of its oversight role to ICANN, a California non-profit corporation. ICANN's mission is to "protect the stability, integrity, interoperability and utility of the DNS on behalf of the global Internet community, " Decl. of John O. Jeffrey, App'x 24.2 ¶ 5, and, pursuant to a contract with the United States Department of Commerce (Commerce Department), the organization now performs several functions essential to the functioning of the Internet.

         Each TLD requires management. ICANN's first responsibility relevant to this case is its selection and approval of qualified entities to operate each of the Internet's TLDs- "registry operators" in ICANN parlance. Regarding the ccTLDs, ICANN uses a comprehensive procedure for those seeking delegation or re-delegation of registry responsibilities (i.e., ccTLD management). Among other things, a proposed ccTLD manager must (1) possess administrative and technical competency, (2) ordinarily be located in the applicable country or territory, (3) obtain consent from affected parties, (4) manifest its commitment to serve the local Internet community's interest and (5) demonstrate that the appropriate local government does not object to the delegation or re-delegation.[7]

         Obtaining ICANN approval for ccTLD management, however, does not automatically effect a registry change. The delegation or re-delegation is effective only if recorded in the root zone file. But ICANN cannot make changes to the root zone file. Rather, Verisign, another American company, performs the recording function under contract with the Commerce Department. The Commerce Department approves all ICANN ccTLD management delegations and re-delegations and instructs Verisign to implement the corresponding root zone file change. Thus, ICANN screens and recommends, the Commerce Department authorizes and Verisign implements all changes to ccTLD management.[8]

         ICANN's second relevant function is the distribution of IP addresses. First, ICANN generates and distributes IP addresses to regional Internet registries (RIRs). There are five RIRS world-wide, each responsible for its own multi-country geographic zone. The RIRs then distribute the IP addresses further downstream; ultimately to end-users and web page operators. Once a website operator obtains an IP address, its web page becomes Internet-accessible. In the usual course, the operator then acquires and links a domain name to the web page in order to use the DNS.

         B. Procedural

         The plaintiffs, victims of terrorist attacks as well as surviving family members of those killed in the attacks, have obtained judgments amounting to hundreds of millions of dollars against the defendant governments for their respective roles in those attacks. See Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13 (D.D.C. 2002) ($ 183, 248, 164 in compensatory and punitive damages); Haim v. Islamic Republic of Iran, 425 F.Supp.2d 56 (D.D.C. 2006) (Haim I) ($ 16, 000, 000 in compensatory damages); Haim v. Islamic Republic of Iran, 784 F.Supp.2d 1 (D.D.C. 2011) (Haim II) ($ 300, 000, 000 in punitive damages); Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258 (D.D.C. 2003) ($ 259, 000, 000 in compensatory and punitive damages to Rubin plaintiffs); Wyatt v. Syrian Arab Republic, 908 F.Supp.2d 216 (D.D.C. 2012) ($ 338, 000, 000 in compensatory and punitive damages); Stern v. Islamic Republic of Iran, 271 F.Supp.2d 286 (D.D.C. 2003) ($ 313, 000, 000 in compensatory and punitive damages); Calderon-Cardona v. Democratic People's Republic of Korea, 723 F.Supp.2d 441 (D.P.R. 2010) ($ 378, 000, 000 in compensatory and punitive damages). For example, in Weinstein the plaintiffs, proceeding under the FSIA's "state sponsor of terrorism" exception to immunity from suit, see 28 U.S.C. § 1605(a)(7), [9]alleged that Iran sponsored the organization-HAMAS- which detonated a bomb that killed the plaintiffs' kin. A default judgment was awarded pursuant to the state-sponsored terrorism exception and 28 U.S.C. § 1608 ("No judgment by default shall be entered . . . unless the claimant establishes his claim or right to relief by evidence satisfactory to the court."). This suit is the latest-although not the only[10]- attempt to recover on the various judgments.

         On June 24, 2014 the plaintiffs served writs of attachment on ICANN seeking the defendants' ccTLDs and "supporting IP addresses" and subpoenas duces tecum seeking information regarding those data. Decl. of Eric P. Enson, Supp. App'x 45-46. ICANN then moved to quash the writs, arguing that (1) the data are not "property" subject to attachment; (2) the defendants do not own the data; (3) the data are not located within D.C. or even the United States; (4) ICANN lacks unilateral authority to transfer/re-delegate the data and (5) the court lacked jurisdiction to issue the writs.[11]After two months of discovery, the plaintiffs sought a six-month extension arguing that ICANN had produced limited information and that further discovery was needed regarding, as relevant here, ICANN's contention that ccTLDs and IP addresses are not "property." In support thereof, the plaintiffs submitted the declaration of one of their counsel who memorialized a discussion he had conducted with an expert on Internet infrastructure and DNS operators. According to the declarant, ICANN "ha[s] a monopoly or complete control over the 'root zone' such that ICANN is wholly and solely responsible for the mapping of [ccTLDs] to their respective registries/name servers." Decl. of Steven T. Gebelin at 3, App'x 51 (Gebelin Decl.). Also according to the declarant, the alleged expert explained that ICANN had in the past "changed and redirected who runs certain ccTLDs . . . in conjunction with the 'monetization' of the ccTLDs by their respective governments, including instances where the governments transferred control away from academic communities to government approved third parties that acquired contractual property rights to exploit the ccTLD and generate revenue." Id. In short, the alleged expert opined that ccTLDs are property that a sovereign can own and monetize and that ICANN has unbridled authority to redelegate them.

         The district court granted ICANN's motion to quash on November 10, 2014. Applying local law pursuant to Fed.R.Civ.P. 69(a)(1) ("[P]rocedure on execution-and in proceedings supplementary to and in aid of judgment or execution-must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies."), the court held that ccTLDs are not "goods, chattels [or] credits" within the meaning of D.C. Code § 16-544, [12] Stern, 73 F.Supp.3d at 50-51; accordingly, the court concluded that "there [we]re no factual disputes that require further consideration" and denied as moot the plaintiffs' motion for extended discovery. Id. at 51 n.3. On appeal the plaintiffs challenge the district court's interpretation of D.C. law and suggest certification to the D.C. Court of Appeals pursuant to D.C. Code § 11-723(a) ("The District of Columbia Court of Appeals may answer questions of law certified to it by . . . a Court of Appeals of the United States."). They also claim that the district court abused its discretion in denying further discovery. Our jurisdiction is based on 28 U.S.C. § 1291.

         II. Analysis

         A. Attachment Immunity Under FSIA § 1609

         The FSIA provides "a comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state, " Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488 (1983), as well as the "sole basis for obtaining jurisdiction over a foreign state in our courts, " Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989). The statute establishes "two kinds of immunity" for a foreign sovereign. Republic of Argentina v. NML Capital, Ltd., 134 S.Ct. 2250, 2256 (2014). First, as a matter of "subject matter jurisdiction, " Verlinden, 461 U.S. at 489, the FSIA establishes immunity from suit in "the courts of the United States and of the States, " 28 U.S.C. § 1604. The seven judgments obtained were awarded pursuant to the state-sponsored terrorism exception to the defendant sovereigns' immunity from suit, 28 U.S.C. § 1605A. See supra at 10- 11.[13] Second, it establishes immunity from "attachment[, ] arrest and execution, " 28 U.S.C. § 1609.[14]

         ICANN contends that, because the plaintiffs did not adequately establish an exception to attachment immunity under the FSIA, 28 U.S.C. §§ 1609-1611, the district court lacked subject matter jurisdiction to "execute against" the defendant sovereigns' property. Appellee's Br. at 39-40. ICANN is mistaken, however, about the jurisdictional nature of attachment immunity. Although the Supreme Court has never expressly addressed whether attachment immunity is jurisdictional, it has in dicta suggested otherwise. See Akins v. FEC, 66 F.3d 348, 354 (D.C. Cir. 1995) ("Supreme Court[] dicta . . . not bind[ing]" but "reliance on dicta may nonetheless be reasonable"); see also ACLU of Ky. v. McCreary Cnty., Ky., 607 F.3d 439, 447 (6th Cir. 2010) (inferior court generally "obligated to follow Supreme Court dicta" absent "substantial reason for disregarding it"). In NML Capital, the Court referred to the first "kind of immunity" as "jurisdictional immunity" and the latter as both the "immunity defense" and "execution immunity." 134 S.Ct. at 2256. We are without "substantial reason for disregarding" this distinction, see ACLU of Ky., 607 F.3d at 447, and the majority of our sister circuits that have considered the issue are in accord, see Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1125 (9th Cir. 2010) ("[S]overeign immunity from execution does not defeat a court's jurisdiction"); Rubin v. Islamic Republic of Iran, 637 F.3d 783, 800 (7th Cir. 2011) (same).[15] We follow suit and reject ICANN's challenge to the district court's subject matter jurisdiction.

         B. Federal Rule of Civil Procedure 69(a) and D.C. Code § 16-544

         Applying the reasoning of the Virginia Supreme Court in Network Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759 ...

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