Ministry of Defense & Support for the Armed Forces of the Islamic Republic of Iran v. Cubic Defense Systems, Inc.
Opinion
dissent Opinion
Fisher, J.
dissenting:
When Dariush Elahi applied for and accepted $2.3 million from the United States Treasury under the Terrorism Risk Insurance Act of 2002 (TRIA), he relinquished the right to attach property at issue in claims against the United States before an international tribunal. See Pub.L. No. 107-297, § 201 (d)(5)(B), 116 Stat. 2322 , 2339. Iran’s Ministry of Defense (MOD), and the United States as amicus curiae, argue that Elahi has relinquished his right to attach the Cubic judgment because it is “at issue” in Iran’s Case B/61 before the United States-Iran Claims Tribunal. 1 I agree.
Case B/61 involves the status and disposition of Iranian military property and assets situated in the United States. One of the pieces of military equipment in dispute in Case B/61 is the Air Combat Maneuvering Range (ACMR), which MOD purchased from Cubic on October 3, 1977. Because Iran has already recovered $2.8 million from Cubic for damages arising out of the 1977 Cubic contract, the United States is entitled to use the Cubic judgment as a setoff against any award in Case B/61.
Although the Cubic judgment will affect the amount of money damages the United States will have to pay, the…
lead Opinion
Fletcher, J.
Opinion by Judge BETTY B. FLETCHER; Dissent by Judge FISHER.
ORDER
The opinion filed on May 30, 2007 is amended as follows:
On slip opinion page 6405, footnote 2, line 2, replace the phrase “, not against private parties” with “and counterclaims arising from the same transactions.” At the end of that paragraph after “See Claims Settlement Declaration ... http:// www.iusct.org/claims-settlement.pdf’ add the following citation:; “see also Case A/2, 1 Iran-U.S.C.T.R. 101, Dec. 1-A2-FT (Jan. 26, 1982).”
On slip opinion page 6410, line 19, beginning with “Further, as noted supra, the Tribunal has no jurisdiction over claims against private parties” add, “having jurisdiction only to hear counterclaims against such parties.”
On slip opinion page 6415, line one, from (“Subsequently, President Carter issued Executive Order 12,282 ...” and ending on line 31 with “... revoked or repealed”), “delete and replace with the following”:
With these amendments, Judge Ward-law has voted to deny the petition for rehearing en banc and Judge B. Fletcher has so recommended. Judge Fisher has voted to grant the petition for rehearing en banc.
The full court has been advised of the petition for…
Opinion
David J. Bederman, Law Office of David J. Bederman, Esq., Atlanta, GA (argued), Anthony J. Van Patten, Glendale, CA, Mina Amassi, Los Altos, CA, for the plaintiff-appellant.
Jonathan R. Mook, DiMuroGinsberg, P.C., Alexandria, VA (argued), Philip J. Hirschkop, Hirschkop & Assoc., P.C., Alexandria, VA, for the intervenor-appellee.
Lewis S. Yelin, Dept. of Justice, Civil Division, Washington, DC (argued), Peter D. Keisler, Assistant Attorney General, Carol C. Lam, United States Attorney, Douglas N. Letter, Appellate Litigation Counsel, for United States as amicus curiae.
Before: B. FLETCHER, KIM McLANE WARDLAW, and RAYMOND C. FISHER, Circuit Judges.
Opinion by Judge BETTY B. FLETCHER; Dissent by Judge FISHER.
The opinion filed on May 30, 2007 is amended as follows:
On slip opinion page 6405, footnote 2, line 2, replace the phrase ", not against private parties" with "and counterclaims arising from the same transactions." At the end of that paragraph after " See Claims Settlement Declaration . . . http:// www.iusct.org/claims-settlement.pdf" add the following citation:; " see also Case A/2, 1 Iran-U.S.C.T.R. 101, Dec. 1-A2-FT (Jan. 26, 1982)."