(L); 23-354 (L) Havlish v. Taliban; Aliganga v. Taliban

23-258 (L); 23-354 (L)
Havlish v. Taliban; Aliganga v. Taliban
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2024
___________
No. 23-258-cv (L)
No. 23-263-cv (CON)
No. 23-304-cv (CON)
No. 23-346-cv (CON)
No. 23-444-cv (CON)
FIONA H AVLISH, ET AL ., J OHN DOES 1 THROUGH 7, FEDERAL INSURANCE
C O., ET AL ., RAYMOND ANTHONY SMITH, ET AL ., KATHLEEN ASHTON, ET
AL .,
Plaintiffs-Appellants,
v.
THE TALIBAN,
Defendant-Appellee,
FEDERAL RESERVE B ANK OF N EW YORK ,
Garnishee-Interested-Party-Appellee, 1
1 The Clerk of Court is directed to amend the official caption as shown
above.

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2
On Appeal from the United States District Court
for the Southern District of New York
No. 23-354-cv (L)
No. 23-797-cv (C)
E STATE OF J ESSE N ATHANAEL ALIGANGA, ET AL ., RIZWAN KHALIQ, ET
AL ., J AMES OWENS, ET AL .,
Plaintiffs-Appellants,
v.
TALIBAN, AKA THE ISLAMIC E MIRATE OF AFGHANISTAN,
Defendant-Appellee.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: O CTOBER 9, 2024
D ECIDED: AUGUST 26, 2025
Before: C ALABRESI , CABRANES, and S ULLIVAN, Circuit Judges.
We consider here claims brought by two different sets of
plaintiffs. The first set of plaintiffs, the Pre-Judgment Plaintiffs, sought
confirmation of a pre-judgment attachment order concerning
“blocked” funds held by the Afghan central bank (Da Afghanistan

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3
Bank, or “DAB”) at the Federal Reserve Bank of New York (the
“FRBNY”). Pre-Judgment Plaintiffs did so to preserve their chance to
collect on a potential future judgment in their lawsuit against the
Taliban for its alleged role in the East Africa embassy bombings of
August 7, 1998. The United States District Court for the Southern
District of New York (Valerie E. Caproni, Judge) denied their motion
in an Opinion and Order dated February 24, 2023.
The second set of plaintiffs (comprising four groups of judgment
creditors), the Judgment Plaintiffs, moved for turnover of those same
“blocked” funds held by DAB at the FRBNY to satisfy judgments they
held against the Taliban stemming, primarily, from the terrorist
attacks of September 11, 2001. The United States District Court for the
Southern District of New York (George B. Daniels, Judge) denied their
motion in a Memorandum Decision and Order dated February 21,
2023.
There are two principal questions before us. The first is whether
the Afghan central bank, DAB, is immune from attachment under the
Foreign Sovereign Immunities Act (the “FSIA”), 28 U.S.C. §§ 1602-
1611. If it is, then Pre-Judgment Plaintiffs’ pre-judgment attachment
order as to its assets must fail.
The second question is whether § 201 of the Terrorism Risk
Insurance Act of 2002 (the “TRIA”) applies to blocked assets in DAB’s
name held at the FRBNY. To do so, the TRIA would need to (1)
abrogate any immunity afforded to DAB by the FSIA and (2) have each
of its statutory prerequisites satisfied. If the TRIA does not so apply,

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4
Judgment Plaintiffs’ turnover motions as to DAB’s assets, likewise,
must fail.
Judge Sullivan concurs in part and dissents in part.
MATTHEW D. MCG ILL , Gibson, Dunn &
Crutcher LLP, Washington, D.C. (Jessica L.
Wagner, Gibson, Dunn & Crutcher LLP,
Washington, D.C.; Robert L. Weigel, Jason
W. Myatt, Gibson, Dunn & Crutcher LLP,
New York, NY; Clifton S. Elgarten, Emily M.
Alban, Crowell & Moring LLP, Washington,
D.C.; Jane Carol Norman, Bond & Norman
Law, PC, Rockville, MD, on the brief), for
Plaintiffs-Appellants Estate of Jesse Nathanael
Aliganga, et al., Rizwan Khaliq, et al., and
James Owens, et al.
IAN H EATH GERSHENGORN, Jenner & Block
LLP, Washington, D.C. (Douglass A.
Mitchell, Jenner & Block LLP, Washington,
D.C.; Lee Wolosky, Benjamin D. Alter, Jenner
& Block LLP, New York, NY; Andrianna D.
Kastanek, Jenner & Block LLP, Chicago, IL;
David A. Barrett, Boies Schiller Flexner LLP,
New York, NY; Stuart H. Singer, Boies
Schiller Flexner, Fort Lauderdale, FL;

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5
Timothy B. Fleming, Wiggins Childs
Pantazis Fisher Goldfarb, PLLC,
Washington, D.C., on the brief), for Plaintiffs-
Appellants Fiona Havlish, et al., Appellants in
23-258.
S AMUEL ISSACHAROFF, New York University
School of Law, New York, NY (Andrew J.
Maloney, III, Kreindler & Kreindler LLP,
New York, NY; Noam Biale, Sher Tremonte,
LLP, New York, NY, on the brief), for Plaintiffs-
Appellants Kathleen Ashton, et al., Appellants
in 23-444.
John Thornton, Orlando do Campo, do
Campo & Thornton, P.A., Miami, FL, for
Plaintiffs-Appellants John Does 1 through 7,
Appellants in 23-263.
Sean P. Carter, Stephen A. Cozen, Cozen
O’Connor, Philadelphia, PA; Richard
Klingler, Ellis George Cipollone O’Brien
Annaguey LLP, Washington, D.C.; Carter G.
Phillips, Sidley Austin LLP, Washington,
D.C., for Plaintiffs-Appellants Federal
Insurance Co., et al., Appellants in 23-346.
Dion G. Rassias, The Beasley Firm, LLC,
Philadelphia, PA, for Plaintiffs-Appellants

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6
Raymond Anthony Smith, et al., Appellants in
23-304.
J OSÉ A. C ABRANES, Circuit Judge:
We consider here claims brought by two different sets of
plaintiffs. The first set of plaintiffs, the Pre-Judgment Plaintiffs, sought
confirmation of a pre-judgment attachment order concerning
“blocked” funds held by the Afghan central bank (Da Afghanistan
Bank, or “DAB”) at the Federal Reserve Bank of New York (the
“FRBNY”). Pre-Judgment Plaintiffs did so to preserve their chance to
collect on a potential future judgment in their lawsuit against the
Taliban for its alleged role in the East Africa embassy bombings of
August 7, 1998. The United States District Court for the Southern
District of New York (Valerie E. Caproni, Judge, hereinafter District
Court [VEC]) denied their motion in an Opinion and Order dated
February 24, 2023.
The second set of plaintiffs (comprising four groups of judgment
creditors), the Judgment Plaintiffs, moved for turnover of those same
“blocked” funds held by DAB at the FRBNY to satisfy judgments they
held against the Taliban stemming, primarily, from the terrorist
attacks of September 11, 2001. The United States District Court for the
Southern District of New York (George B. Daniels, Judge, hereinafter
District Court [GBD]) denied their motion in a Memorandum Decision
and Order dated February 21, 2023.

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7
There are two principal questions before us. The first is whether
the Afghan central bank, DAB, is immune from attachment under the
Foreign Sovereign Immunities Act (the “FSIA”), 28 U.S.C. §§ 1602-
1611. If it is, then Pre-Judgment Plaintiffs’ pre-judgment attachment
order as to its assets must fail.
The second question is whether § 201 of the Terrorism Risk
Insurance Act of 2002 (the “TRIA”) applies to blocked assets in DAB’s
name held at the FRBNY. To do so, the TRIA would need to (1)
abrogate any immunity afforded to DAB by the FSIA and (2) have each
of its statutory prerequisites satisfied. If the TRIA does not so apply,
Judgment Plaintiffs’ turnover motions as to DAB’s assets, likewise,
must fail.
We answer the question of whether DAB is immune from
attachment under the FSIA in the affirmative. DAB is the agency or
instrumentality of the foreign state of Afghanistan, which itself
continues to be recognized as an independent state by the Executive
Branch of the United States. This makes DAB itself a “foreign state”
pursuant to § 1603(a) and (b) of the FSIA and imbues it with
attachment and execution immunity under § 1609. Moreover, none of
the exceptions to attachment and execution immunity in § 1610
pertain.
We therefore AFFIRM the order of the District Court (VEC)
denying Pre-Judgment Plaintiffs’ motion to confirm the pre-judgment
attachment order on the basis that DAB’s funds are immune from
attachment under the FSIA.

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8
We answer the question of whether § 201 of the TRIA applies to
blocked assets in DAB’s name held at the FRBNY in the negative.
Although we conclude that the TRIA abrogates any immunity
afforded to DAB under the FSIA, we find that at least one of the TRIA’s
statutory prerequisites is not satisfied—to wit, we find that DAB is not
an agency or instrumentality of a terrorist party as required by the
TRIA.
Consistent with our precedent, we evaluate the meaning of an
“agency or instrumentality” under the TRIA differently from that
same term’s meaning under the FSIA. Similarly, we hold for the first
time that the date at which we must determine an entity’s agency or
instrumentality status is different under the TRIA than it is under the
FSIA. Specifically, an entity’s agency or instrumentality status under §
201 of the TRIA must be determined as of the date that the assets
sought in the turnover motion were blocked. Applying our TRIA-
based definition of agency or instrumentality to DAB as of August 15,
2021—the date its FRBNY-held funds were blocked—we conclude that
DAB is not an agency or instrumentality of the Taliban for purposes of
the TRIA.
Accordingly, we likewise AFFIRM the order of the District
Court (GBD) denying Judgment Plaintiffs’ turnover motions. While
we hold, contrary to the District Court, that the TRIA abrogates
immunity granted to DAB by the FSIA and independently establishes
subject matter jurisdiction, we agree that Judgment Plaintiffs fail to
satisfy the TRIA’s requirement that the blocked assets be either the

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9
assets of the terrorist party or the assets of the terrorist party’s agency
or instrumentality.
I. BACKGROUND
Today we decide two matters arising from a related set of facts.
The first case is brought by plaintiffs (the “Pre-Judgment Plaintiffs”)
seeking pre-judgment attachment for damages they allege the Taliban
has caused. The second case is brought by plaintiffs (the “Judgment
Plaintiffs”) seeking to satisfy judgments they hold against the Taliban
for its role in various terrorist attacks. Both sets of plaintiffs target
blocked funds of Da Afghanistan Bank (“DAB”), the central bank of
the independent state of Afghanistan, that are held at the Federal
Reserve Bank of New York (the “FRBNY”).
A. Factual Background
These cases emerge from the atrocities committed by al-
Qaeda—with support from the Afghan Taliban (the “Taliban”)—on
August 7, 1998, and September 11, 2001.2
On August 7, 1998, al-Qaeda perpetrated simultaneous suicide
bombings at the U.S. embassies in Nairobi, Kenya, and Dar es Salaam,
Tanzania. These embassy bombings killed over two hundred
individuals and injured several thousand others. On September 11,
2001, al-Qaeda hijacked several passenger aircraft, flying them into the
2 They also include a suicide bomb attack perpetrated by the Taliban on
January 4, 2016. See Judgment Plaintiffs’ Appendix (“Judgment App’x”) at 326.

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10
twin towers of the World Trade Center in New York, NY, the Pentagon
in Washington, D.C., and an open field in Somerset County, PA. These
aircraft hijackings killed several thousand individuals and injured
many others.
The Taliban provided considerable support to al-Qaeda in both
sets of devastating terrorist attacks. This includes the Taliban’s
provision to al-Qaeda of a “base of operations, training bases, and safe
haven.”3 Indeed, the historical record reveals “that the [United States
Government] believed that the Taliban had the capacity to shut down
Al Qaeda operations in Afghanistan but refused to do so.”4 Because of
the Taliban’s role in al-Qaeda’s terrorist attacks and the ongoing threat
it posed to the United States and U.S. nationals, the United States
designated the Taliban as a Specially Designated Global Terrorist (an
“SDGT”) in July 2002.5 To this day, the Taliban remains an SDGT.
The Taliban first rose to power in Afghanistan in 1996 and ruled
until 2001, when the United States headed a coalition force that
invaded Afghanistan and removed the Taliban from its position of de
facto control. Though stripped of power, the Taliban maintained an
insurgency in Afghanistan for the next two decades. Following an
agreement that the United States formed with the Taliban in 2020 to
withdraw U.S. troops from Afghanistan, and the subsequent
3 Judgment App’x 256.
4 Id. at 516.
5 Exec. Order No. 13,268, 67 Fed. Reg. 44751 (July 2, 2002); see also Exec.
Order No. 13,224, 66 Fed. Reg. 49079 (Sep. 23, 2001).

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11
withdrawal of those troops in the summer of 2021, the Taliban
insurgency mounted an offensive which culminated in the capture of
Afghanistan’s capital, Kabul, on August 15, 2021. As a result, the
Taliban once more seized de facto control over most of Afghanistan—
but not formal authority, as no country has recognized the Taliban as
Afghanistan’s legitimate government.
That same day—August 15, 2021—the U.S. Treasury
Department blocked all assets held in the Federal Reserve Bank of
New York (the “FRBNY”) by the central bank of Afghanistan, Da
Afghanistan Bank (“DAB”).6 By the time the Taliban was ousted (if
only temporarily) in 2001, DAB had just $90,000 in foreign exchange
reserves.7 That sum swelled to over $10 billion in assets as of June 21,
2021,8 consisting primarily of foreign exchange funds provided by
international donors—such as the United States and other Western
countries. The majority of DAB’s assets—totaling approximately $7
billion—were held in the FRBNY.9
As the Taliban seized control over Afghanistan, many senior
DAB officials—including its Acting Governor—either left Afghanistan
or went into hiding. The Taliban proceeded to fill those leadership
6 Clayton Thomas, CONG. RSCH. SERV., Taliban Government in Afghanistan:
Background and Issues for Congress 39 (2021).
7 Id. at 38.
8 Id.
9 Clayton Thomas, CONG. RSCH. SERV., Taliban Government in Afghanistan:
Background and Issues for Congress 38-39 (2021).

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12
positions, which included appointing a new Acting Governor on
August 23, 2021.10 The Taliban also appears to have installed
individuals designated as terrorists by the Department of the
Treasury’s Office of Foreign Assets Control (“OFAC”) as DAB’s First
Deputy Governor and Second Deputy Governor.11 There is little
question that the Taliban has attained de facto control over DAB; as
former Treasury Department and National Security Council official
Adam Smith testified before the U.S. Senate Committee on Banking,
Housing, and Urban Affairs on October 5, 2021, DAB “is now under
control of the Taliban.”12 From its position of de facto control over both
Afghanistan and DAB, the Taliban demanded immediate receipt of the
approximately $7 billion in DAB assets held in the FRBNY.
The United States did not accede to the Taliban’s request. On
February 11, 2022, then-President Joe Biden issued an Executive Order
titled “Protecting Certain Property of Da Afghanistan Bank for the
Benefit of the People of Afghanistan” (the “Executive Order”).13 The
Executive Order asserted that Afghanistan was experiencing a
“widespread humanitarian crisis” which, combined with “the
potential for a deepening economic collapse in Afghanistan,”
constituted “an unusual and extraordinary threat to the national
10 The new Acting Governor, Haji Mohammed Idris, was reported to be a
“Taliban loyalist.” Pre-Judgment Plaintiffs’ Appendix (“Pre-Judgment App’x”) at
338.
11 Pre-Judgment App’x 340-54.
12 Id. at 363.
13 Exec. Order No. 14,064, 87 Fed. Reg. 8391 (Feb. 11, 2022).

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13
security and foreign policy of the United States.”14 It proclaimed a
“national emergency” to address the threat and asserted that
preserving the U.S.-held assets of DAB—which it defined as the
“Central Bank of Afghanistan”—was “of the utmost importance to
addressing this national emergency and the welfare of the people of
Afghanistan.”15 Accordingly, the Executive Order formally blocked
DAB’s property in the United States and ordered that the property be
transferred “into a consolidated account held at the [FRBNY].”16 The
Executive Order authorized the Secretary of the Treasury to “take such
actions . . . as may be necessary to carry out the purposes of this
order.”17
Later that day and pursuant to the authority granted by the
Executive Order, OFAC issued a license (the “OFAC License”)
directing the FRBNY to transfer $3.5 billion to a separate blocked
account.18 The OFAC License set forth that the $3.5 billion could be
transferred from the account “for the benefit of the people of
Afghanistan” provided that the transfer was initiated by
14 Id.
15 Id. at 8391-92.
16 Id. at 8391.
17 Id. at 8392.
18 Pre-Judgment App’x 297.

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14
“individual(s) certified by the Secretary of State pursuant to Section
25B of the Federal Reserve Act.”19
The Secretary of State has since certified two individuals as
accredited representatives of Afghanistan, giving them joint control
over the $3.5 billion that was transferred to a blocked account pursuant
to the OFAC License.20 These accredited representatives founded the
Fund for the Afghan People (the “Afghan Fund”) and transferred the
$3.5 billion to an account at the Bank of International Settlements in
Switzerland.21
The United States has represented that this approach enables the
“$3.5 billion of Afghan central bank reserves to be used for the benefit
of the people of Afghanistan while keeping them out of the hands of
19 Id. at 298. Section 25B(3) of the Federal Reserve Act provides that the
certified individual must be “a representative of such foreign state who is
recognized by the Secretary of State as being the accredited representative of such
foreign state.” See 12 U.S.C. § 632.
20 Press Release, U.S. Dep’t of the Treasury, Joint Statement by U.S. Treasury
and State Department: The United States and Partners Announce Establishment of
Fund for the People of Afghanistan (Sep. 14, 2022),
https://home.treasury.gov/news/press-releases/jy0947 [https://perma.cc/952K-
6TEY].
21 Id. As of December 31, 2024, the Afghan Fund’s assets totaled $3.94 billion.
Gene Aloise, SIGAR Quarterly Report to the United States Congress, 45 (Jan. 30,
2025), https://www.sigar.mil/Portals/147/Files/Reports/Quarterly-Reports/2025-01-
30qr.pdf [https://perma.cc/2KBA-2K9Z]. As of January 30, 2025, the Afghan Fund
“ha[d] not yet made any disbursements to entities on behalf of Afghanistan.” Id.

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15
the Taliban and other malign actors.”22 While the United States
recognizes these reserves as funds belonging to DAB, and in the long
run envisions retuning these funds to DAB, it has “made clear that [it]
will not support the return of these funds until DAB” meets three
criteria, one of which concerns demonstrating independence from the
Taliban.23
DAB’s remaining U.S.-held assets—totaling approximately $3.5
billion—continue to reside at the FRBNY.24 These assets lie at the crux
of the instant litigation.
B. Procedural Background
We have before us two separate cases, each with its own set of
Plaintiffs-Appellants.
The set of plaintiffs in the first case comprises victims of al-
Qaeda’s suicide bombings at the U.S. embassies on August 7, 1998 (the
22 Press Release, U.S. Dep’t of the Treasury, Joint Statement by U.S. Treasury
and State Department: The United States and Partners Announce Establishment of
Fund for the People of Afghanistan (Sep. 14, 2022),
https://home.treasury.gov/news/press-releases/jy0947 [https://perma.cc/952K-
6TEY].
23 Id. These three requirements are that DAB: “(1) Demonstrates its
independence from political influence and interference; (2) Demonstrates it has
instituted adequate anti-money laundering and countering-the-financing-of-
terrorism (AML/CFT) controls; and (3) Completes a third-party needs assessment
and onboards a reputable third-party monitor.” Id.
24 Martin A. Weiss, Clayton Thomas, & Jennifer K. Elsea, CONG. RSCH. SERV.,
Afghanistan Central Bank Reserves 1 (2023).

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16
“Pre-Judgment Plaintiffs”). The set of plaintiffs in the second case
comprises primarily victims of al-Qaeda’s aircraft hijackings on
September 11, 2001 (the “Judgment Plaintiffs”).25
1. Pre-Judgment Plaintiffs
On March 8, 2022, Pre-Judgment Plaintiffs filed a complaint
against the Taliban, alleging that it was directly and proximately liable
for the embassy attacks and seeking compensatory damages.26 That
same day, Pre-Judgment Plaintiffs also filed an ex parte emergency
motion to attach DAB’s funds held at the FRBNY, alleging that those
funds belonged to the Taliban.
The District Court (VEC) granted Pre-Judgment Plaintiffs’
motion to attach on March 21, 2022, and issued its opinion regarding
the same on April 11, 2022. Pre-Judgment Plaintiffs moved to confirm
the order of attachment on May 2, 2022. In an Opinion and Order
issued on February 24, 2023, the District Court declined to confirm its
attachment order, finding that since DAB is the central bank of
Afghanistan, its funds are immune from attachment under the FSIA.
It therefore denied Pre-Judgment Plaintiffs’ motion to confirm and
vacated its own order of March 21, 2022 (in which it had granted ex
parte emergency attachment). The District Court subsequently denied
Pre-Judgment Plaintiffs’ motion to stay its decision denying
25 Judgment Plaintiffs also include victims of the Taliban’s suicide bomb
attack on January 4, 2016.
26 While Pre-Judgment Plaintiffs initially filed their complaint on March 8,
2022, they modified it on March 9, 2022, after incurring a filing error.

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17
confirmation of its pre-judgment attachment order. Pre-Judgment
Plaintiffs timely appealed from the District Court’s order denying their
motion to confirm the ex parte attachment order and vacating the
attachment.
2. Judgment Plaintiffs
Judgment Plaintiffs comprise four groups of judgment creditors
who hold judgments against the Taliban for its role in terrorist
attacks.27 They seek to satisfy their judgments against the Taliban with
the blocked DAB funds held at the FRBNY. On August 26, 2022, a
magistrate judge recommended denying these turnover motions for
three reasons: (1) DAB is immune to the district court’s jurisdiction, (2)
the district court is constitutionally restrained from finding that the
TRIA mandates authorization of the turnover, and (3) the TRIA
requires a consent-based agency relationship between DAB and the
Taliban, which was lacking. Judgment Plaintiffs filed objections to the
magistrate judge’s Report and Recommendation on November 10,
2022. On February 21, 2023, the District Court (GBD) denied Judgment
Plaintiffs’ turnover motions, adopting the first two of the magistrate
27 There is also a fifth group of plaintiffs-appellants: plaintiffs in Kathleen
Ashton, et al. (“Ashton Plaintiffs”). Ashton Plaintiffs seek attachment, whereas
Judgment Plaintiffs seek turnover. However, their arguments against the District
Court (GBD)’s order largely overlap with those of Judgment Plaintiffs. Indeed,
Ashton Plaintiffs note their agreement with Judgment Plaintiffs on “th[e] threshold
legal issues.” Ashton Plaintiffs’ Br. at 3; see also id. at 17. Ashton Plaintiffs’ remaining
arguments as to the distribution of DAB’s funds are mooted by our judgment.

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18
judge’s three reasons for denial. Judgment Plaintiffs timely appealed
from the District Court’s order.
II. DISCUSSION
“We review the district court’s ruling on a request for an order
of attachment for abuse of discretion.”28 We likewise review “a denial
of a . . . turnover order for abuse of discretion.”29 The district court
abuses its discretion if it commits an error of law, such as in its
application of the FSIA or the TRIA.30 “We review de novo a district
court’s legal conclusions under the FSIA, including whether a foreign
state or its property is or is not shielded by immunity.”31 A district
court’s legal conclusions under the TRIA are likewise subject to our de
novo review.
We have jurisdiction over Pre-Judgment Plaintiffs’ appeal under
28 U.S.C. § 1291 and the collateral-order doctrine. As instructed by the
28 Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d 120, 129 (2d
Cir. 2009).
29 Mohammad Ladjevardian, Laina Corp. v. Republic of Argentina, 663 F. App’x
77, 79 (2d Cir. 2016).
30 EM Ltd. v. Republic of Argentina, 473 F.3d 463, 472 (2d Cir. 2007).
31 Kirschenbaum v. 650 Fifth Ave. & Related Props., 830 F.3d 107, 122 (2d Cir.
2016).

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19
Supreme Court, district court orders denying security are immediately
appealable pursuant to the collateral-order doctrine.32
We have jurisdiction over Judgment Plaintiffs’ appeal under 28
U.S.C. § 1291, as the District Court (GBD)’s Memorandum Decision
and Order denying their motions for turnover was a final order.
A. The District Court (VEC) Was Permitted to Address the
Applicability of Attachment Immunity Sua Sponte
Pre-Judgment Plaintiffs contend that the District Court (VEC)
erred when it addressed the applicability of an attachment immunity
provision in the FSIA—namely, 28 U.S.C. § 1611(b)—sua sponte.33 We
disagree.
Section 1611(b) sets forth that “[n]otwithstanding the provisions
of section 1610 of this chapter, the property of a foreign state shall be
immune from attachment and from execution” provided certain
conditions pertain.34 We have previously determined that nearly
identical language in the FSIA “places no limit on the district court’s
authority to recognize execution immunity.”35 We have further
32 See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 543, 546-47 (1949);
Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 689 (1950).
33 Pre-Judgment Plaintiffs’ Br. at 35-41.
34 28 U.S.C. § 1611(b) (emphasis added).
35 Walters v. Indus. and Com. Bank of China, Ltd., 651 F.3d 280, 291 (2d Cir.
2011). The language to which we referred was section 1609’s statement that “the
property in the United States of a foreign state shall be immune from attachment[,]

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20
concluded that “the statute’s use of the mandatory form—providing
that such property ‘shall be immune’ from execution absent a statutory
exception—signals that, at least where there is no dispute that the
targeted property is owned by a foreign sovereign, execution
immunity inures in the property itself and applies without regard to
how the issue is raised.”36 These basic principles weigh heavily in
favor of finding that district courts possess the authority to review
attachment (and execution) immunity sua sponte.
Pre-Judgment Plaintiffs argue otherwise. In the main, they
assert that an exception to the district court’s authority to exercise its
sua sponte review of immunity arises when “the sovereign status of the
property at issue is disputed.”37 It is true that we have stopped short
of expressly holding that a district court may consider attachment and
execution immunity sua sponte in the face of a disputed foreign
sovereign.38 But in doing so, we explicitly left that issue open to be
resolved another day.39
arrest[,] and execution except as provided in sections 1610 and 1611 of this chapter.”
28 U.S.C. § 1609.
36 Id. at 291. The District Court (VEC) thus correctly noted that we have
“signaled that Section 1611’s use of the term ‘shall’ indicates that execution
immunity inures in property that belongs to a foreign sovereign.” Owens v. Taliban,
No. 22-cv-1949, 2023 WL 2214887, at *5 (S.D.N.Y. Feb. 24, 2023).
37 Pre-Judgment Plaintiffs’ Br. at 35-36.
38 Walters, 651 F.3d at 293-94.
39 Id. at 294 n.11.

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21
That day is upon us. Pre-Judgment Plaintiffs dispute whether
DAB’s assets are the property of a foreign sovereign,40 and thus we
must determine whether a district court may consider the attachment
immunity and execution immunity of those assets sua sponte.
We conclude that it may. We see no good reason to foreclose
disputed sovereign assets from a court’s sua sponte consideration of
attachment or execution immunity. “Both the Supreme Court and the
Second Circuit have long held that courts may dismiss actions on their
own motion in a broad range of circumstances where they are not
explicitly authorized to do so by statute or rule”41 and we “identify no
doctrinal bar to a district court’s applying execution immunity on its
own initiative consistent with the terms of the FSIA.”42 We add to that
only to note that we likewise identify no doctrinal bar to a district
court’s sua sponte application of attachment or execution immunity
even when the sovereign status of the property at issue is disputed.
B. As an Agency or Instrumentality of a Foreign State to Which No
Enumerated Exceptions Apply, DAB Is Entitled to Execution
Immunity Under the Foreign Sovereign Immunities Act
We next turn to the matter of whether DAB qualifies for
execution immunity under the Foreign Sovereign Immunities Act (the
“FSIA”). The FSIA is a statute containing “a comprehensive set of legal
40 Pre-Judgment Plaintiffs’ Br. at 35.
41 Snider v. Melindez, 199 F.3d 108, 112 (2d Cir. 1999).
42 Walters, 651 F.3d at 293.

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22
standards governing claims of immunity in every civil action against
a foreign state or its political subdivisions, agencies or
instrumentalities.”43 “[T]he FSIA imposes a bright-line rule: foreign
states and their instrumentalities are immune from suit unless one of
the Act’s enumerated exceptions applies.”44
The FSIA was enacted in 1976 with the purpose of “codify[ing]
the restrictive theory of sovereign immunity” presented in the Tate
Letter.45 In 1952, motivated by the “widespread and increasing
practice on the part of governments of engaging in commercial
activities,”46 Acting Legal Advisor Jack Tate of “the State Department
announced the ‘restrictive’ theory of foreign sovereign immunity,
under which immunity was typically afforded in cases involving a
foreign state's public acts, but not its strictly commercial acts.”47
However, during the following decades, “[d]ebates over the degree of
immunity foreign sovereigns should enjoy in this Nation's courts
followed.”48 Accordingly, the FSIA was introduced to “standardize the
43 Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488 (1983).
44 CC/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd., 145 S. Ct. 1572, 1578 (2025).
45 Samantar v. Yousuf, 560 U.S. 305, 319 (2010); see also Bartlett v. Baasiri, 81
F.4th 28, 31-32 (2d Cir. 2023).
46 See Letter from Acting Legal Adviser Jack B. Tate to Acting Attorney
General Philip B. Perlman (May 19, 1952), reprinted in Alfred Dunhill of London, Inc.
v. Republic of Cuba, 425 U.S. 682, 711-715 (1976).
47 Turkiye Halk Bankasi A.S. v. United States, 598 U.S. 264, 271 (2023).
48 Republic of Hungary v. Simon, 604 U.S. 115, 119 (2025).

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23
judicial process with respect to immunity for foreign sovereign entities
in civil cases.”49
Importantly, while the FSIA “defin[es] the circumstances in
which foreign states are immune from suit,” the FSIA emphatically
does not charge the Judiciary with the threshold power to determine
whether the basic legal existence of a foreign state is recognized,
especially in contravention of the Executive.50 The FSIA neither defines
what a foreign state is nor provides the Judiciary with a statutory
scheme to determine the “qualifications for statehood or [whether] a
particular regime is the effective government of a state.”51
Indeed, thirty-nine years after the FSIA was enacted, the
Supreme Court held in Zivotofsky ex rel. Zivotofsky v. Kerry that it is the
“exclusive power of the President to control recognition
determinations, including formal statements by the Executive Branch
acknowledging the legitimacy of a state or government.”52 Critically,
the Zivotofsky Court explained that “[l]egal consequences follow
formal recognition,” including the “benefit [of] sovereign immunity
49 Turkiye Halk Bankasi, 598 U.S. at 272.
50 Id. at 274 (internal quotation marks and citation omitted) (emphasis
omitted).
51 Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 11 (2015) (internal quotation
marks and citation omitted).
52 Id. at 32. Some international-law scholars distinguish between the
recognition of states and the recognition of governments. See Ian Brownlie,
P RINCIPLES OF P UBLIC I NTERNATIONAL LAW 134-156 (9th ed. 2019). Zivotofsky
appears to hold that the President’s exclusive power extends to both.

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when [recognized sovereigns] are sued.”53 And sovereign immunity is
only of moment in the context of the FSIA, as both the Supreme Court54
and the FSIA itself55 have made plain. As a result, while the FSIA’s
reach is a “pure question of statutory construction” that is “well within
the province of the Judiciary,” the FSIA must be interpreted in a
manner consistent with the Constitutional authority of the Executive
to legally recognize the existence of foreign states.56
We return, then, to the FSIA. The FSIA contemplates two types
of immunity that can apply to the political subdivisions or agencies
and instrumentalities of foreign states: jurisdictional immunity (or
immunity from suit) and execution immunity (or immunity from
attachment of property).
53 Id. at 11.
54 See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434
(1989) (“We think that the text and structure of the FSIA demonstrate Congress’
intention that the FSIA be the sole basis for obtaining jurisdiction over a foreign
state in our courts.”). One can read this holding as suggesting that while the FSIA
is the means by which we answer the question of whether a foreign state is entitled
to sovereign immunity, the more basic question of whether a foreign state is legally
recognized at all is assessed prior to, and independently of, the FSIA’s framework.
To analogize to mathematics or programming, a foreign state is an “input” used to
generate results from the FSIA function, rather than an “output” of that function.
55 See 28 U.S.C. § 1602 (“Claims of foreign states to immunity should
henceforth be decided by courts of the United States and of the States in conformity
with the principles set forth in this chapter.”).
56 Republic of Austria v. Altmann, 541 U.S. 677, 701 (2004) (quoting INS v.
Cardoza-Fonseca, 480 U.S. 421, 446, 448 (1987)); see also 28 U.S.C. § 1602.

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These two different types of immunity are covered in two
different parts of the FSIA. 28 U.S.C. § 1604 sets forth that “a foreign
state shall be immune from the jurisdiction of the courts of the United
States and of the States except as provided in sections 1605 to 1607 of
this chapter.”57 28 U.S.C. § 1609 sets forth that “the property in the
United States of a foreign state shall be immune from attachment[,]
arrest[,] and execution except as provided in sections 1610 and 1611 of
this chapter.”58
While both types of immunity turn on whether the relevant
entity is a political subdivision or an agency or instrumentality of a
foreign state, “the FSIA’s provisions governing jurisdictional
immunity, on the one hand, and execution immunity, on the other,
operate independently.”59 In other words, exceptions to jurisdictional
immunity do not compel a finding that execution immunity has also
been abrogated, or vice versa.60 This can also be seen from the fact that
“the execution immunity afforded sovereign property is broader than
the jurisdictional immunity afforded the sovereign itself.”61 This
“special protection afforded to the property of a foreign sovereign”62
57 28 U.S.C. § 1604.
58 Id. § 1609.
59 Walters v. Indus. and Com. Bank of China, Ltd., 651 F.3d 280, 288 (2d Cir.
2011).
60 Id. at 289.
61 Id.
62 Id.

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26
derives from the fact that “at the time the FSIA was passed, the
international community viewed execution against a foreign state’s
property as a greater affront to its sovereignty than merely permitting
jurisdiction over the merits of an action.”63
Here, the District Court (VEC) determined that DAB was
entitled to execution immunity, and did not assess whether
jurisdictional immunity applied. For DAB’s assets held in the FRBNY
to receive execution immunity under section 1609, DAB must be “a
political subdivision of a foreign state or an agency or instrumentality
of a foreign state as defined in subsection (b)” such that DAB itself
qualifies as a “foreign state.”64
Because DAB is an agency or instrumentality of the State of
Afghanistan, which is itself recognized as a foreign state by the
Executive, and because we find that no exceptions to immunity apply,
we hold that DAB’s assets held in the FRBNY are entitled to execution
immunity under the FSIA.
1. Afghanistan Is a Foreign State for the Purposes of the FSIA
As DAB—a central bank—is not itself a foreign state, for it to be
considered a “foreign state” under the FSIA it must either be the
63 Id. (quoting Conn. Bank of Com. v. Republic of Congo, 309 F.2d 240, 255-56
(5th Cir. 2002)).
64 28 U.S.C. § 1603(a). It is therefore the case that, under the FSIA, the
definition of “foreign state” expands beyond foreign states (i.e., foreign countries)
themselves. Foreign states are “foreign states” under the FSIA, but so too are their
political subdivisions and their agencies or instrumentalities.

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27
political subdivision or the agency or instrumentality of a foreign
state.65 In this case, the relevant foreign state is the independent state
of Afghanistan.
As stated earlier, the FSIA does not define what a foreign state
is. It merely provides that the category of “foreign state” is capacious
enough to capture the undefined state’s political subdivisions and
agencies or instrumentalities. The FSIA’s silence on this threshold
issue makes sense. As the Supreme Court explained in Zivotofsky, it is
the power of the Executive to legally determine whether “a particular
entity possesses the qualifications for statehood or that a particular
regime is the effective government of a state,” including for the
purposes of sovereign immunity.66
The question of whether Afghanistan qualifies as a foreign state
for the purposes of our FSIA analysis is not close. We find that the
Executive Branch continues to afford formal recognition to the state of
Afghanistan, even as it denies formal recognition of any government
thereof. This is seen most plainly by reviewing the U.S. Department of
State’s “Fact Sheet” detailing the entities that the United States
recognizes as “independent states,” where that term is defined as “a
people politically organized into a sovereign state with a definite
territory recognized as independent by the [United States].”67 One
65 Id.
66 Zivotofsky, 576 U.S. at 11 (internal quotation marks and citation omitted).
67 U.S. Department of State, Fact Sheet: Independent States in the World, Bureau
of Intelligence and Research (Mar. 12, 2025), https://www.state.gov/independent-

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need only turn to the very top of the alphabetically arranged table of
197 independent states to find the state of Afghanistan counted among
their ranks. This table was last updated in March 2025—well after
Kabul fell to the Taliban. Consequently, while the Taliban is not a
formally recognized government, Afghanistan continues to be a formally
recognized state. With this determination by the Executive in hand, we
are bound to acknowledge that Afghanistan is a foreign state for the
purpose of our analysis of DAB under the FSIA.
Notably, Pre-Judgment Plaintiffs contend in a footnote in their
brief that there is “good reason to conclude that Afghanistan no longer
qualifies as a ‘foreign state’ for purposes of the FSIA.”68 But their
reasoning relies entirely on the definition of statehood found in the
Third Restatement of Foreign Relations Law of the United States—a
definition which our Court has turned to only in the absence of formal
recognition by the Executive Branch.69 In such cases, we will only find
states-in-the-world [https://perma.cc/XX9Q-KGPA]; see also Letter from the United
States, 22-cv-1949, ECF No. 81 at 2 (Feb. 24, 2023) (in which the Department of
Justice confirms that the official position of the United States is that DAB is the
central bank of the State of Afghanistan).
68 Pre-Judgment Plaintiffs’ Br. at 57 n.6.
69 The Third Restatement identifies a two-step test for determining whether
a foreign state legally exists for purposes of further analysis of the relevant state
under the FSIA.
First—and in complete consonance with the Supreme Court’s later analysis
in Zivotofsky—we are to look to the Executive Branch. A President’s determination
that a state is a foreign state is “binding on . . . the courts.” Restatement (Third) of

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a not-formally recognized state to qualify as a foreign state for
purposes of the FSIA if it (1) “has a defined territory and a permanent
population” that is (2) “under the control of its own government” and
that (3) “engages in, or has the capacity to engage in, formal relations
with other such entities.”70
For example, in Klinghoffer v. S.N.C. Achille Lauro Ed Altri-
Gestione Motonave Achille Lauro in Amministrazione Straordinaria, which
was decided before Zivotofsky, we went beyond the explicit directives
of the FSIA to evaluate whether the Palestinian Liberation
Organization (the “PLO”) was a foreign state entitled to immunity.71
There, we were not able to rely on an express determination from the
Executive Branch; the United States had “not recognized the PLO” or
the Foreign Relations Law of the United States § 204(a) (1987). If the Executive so
determines, we have our answer, and do not proceed to the second step.
Rather, we only move to step two—application of the Third Restatement’s
definition of statehood—“[i]n the absence of a Presidential decision.” Id. At that
point, we would decide for ourselves “whether to treat an entity as a state” by
applying the definition we have adopted for a foreign state. Id.
This approach is consistent with that described in the Fourth Restatement,
which sets forth that “[w]hether a particular party is a ‘state’ under the [FSIA] . . .
is a question of statutory interpretation, informed by the views of the executive
branch.” Restatement (Fourth) of the Foreign Relations Law of the United States §
452(a) (2018).
70 Nat’l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 860 F.2d 551, 553-554 (2d
Cir. 1988) (quoting Restatement (Third) of the Foreign Relations Law of the United
States § 201 (1987)).
71 Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro
in Amministrazione Straordinaria, 937 F.2d 44 (2d Cir. 1991).

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30
“extended it formal diplomatic recognition.”72 We thus proceeded to
apply the Third Restatement to assess whether the PLO met the
definition of a “state,” and determined that it did not.
That same logic does not apply here. Here, we do have a
determination from the Executive Branch: the United States continues
to recognize Afghanistan as an independent state.73 We can—and
indeed must—rely upon the Executive’s recognition of Afghanistan’s
statehood. This is our clear directive from Zivotofsky.74
Finally, we emphasize, consistent with the FSIA’s statutory
scheme, that the question of whether the Executive has recognized the
legal existence of a state is distinct from questions regarding which
entities and activities of a foreign state enjoy sovereign immunity. Our
more recent decision in Kirschenbaum v. 650 Fifth Avenue & Related
Properties is instructive as to this distinction.75 In Kirschenbaum, we
inquired into whether a particular foundation and New York
partnership with a relation to the state of Iran “bore traditional
attributes of statehood (or otherwise qualified as a subdivision,
72 Id. at 48-49.
73 See ante note 67.
74 In addition, as we explain in ante note 69, the very source of law upon
which we based our “foreign state” analysis in Klinghoffer—the Third
Restatement—makes plain that “a court will decide whether to treat an entity as a
state” only “[i]n the absence of a Presidential decision.” Restatement (Third) of the
Foreign Relations Law of the United States § 204 (1987).
75 830 F.3d 107 (2d Cir. 2016).

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31
agency, or instrumentality).”76 Such a determination is undoubtedly
the province of the Judiciary, to be evaluated according to the FSIA’s
text—and not by any proclamation of the Executive. Accordingly, we
properly determined that while the Executive had issued an order that
broadly defined “the ‘Government of Iran’ to include ‘any person
owned or controlled by, or acting for or on behalf of, the Government
of Iran,’”77 the Judiciary was not permitted to rely on that definition to
“expand sovereign statehood under the FSIA for a single ‘foreign
state.’”78 However, we did not apply the Third Restatement’s
definition to determine whether Iran, itself, was a foreign state. Instead,
implicitly relying on the Executive’s formal recognition, we observed
that Iran “certainly is” a foreign state.79
By contrast, Pre-Judgment Plaintiffs argue that in this highly
unusual case, the Court should effectively withdraw the Executive’s
legal recognition of the state of Afghanistan based on the Court’s own
analysis of the changing use of force and territorial integrity of a
region. Such an approach is inconsistent with the FSIA and this Court’s
precedents and contradicts the Supreme Court’s clear direction in
Zivotofsky. Accordingly, we proceed to analyze whether DAB is a
76 Id. at 125.
77 Id. at 124 (quoting Exec. Order No. 13,599, 77 Fed. Reg. 6659 (Feb. 5, 2012)).
78 Id. at 125 (emphasis added).
79 Id.

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32
political subdivision or an agency or instrumentality of the foreign
state of Afghanistan under the FSIA.
2. DAB, as the Agency or Instrumentality of the State of
Afghanistan, Is a “Foreign State” Under the FSIA
Having determined that Afghanistan is a foreign state under the
FSIA, we proceed to consider whether DAB is its political subdivision
or its agency or instrumentality. If it is, then DAB would also be
considered a “foreign state” for purposes of the FSIA.80 Both district
courts below found that DAB was an agency or instrumentality of
Afghanistan and, therefore, was a “foreign state” for purposes of the
FSIA.81 We agree.
Returning to the statute, we assess whether DAB is either (1) a
political subdivision of Afghanistan or (2) an agency or
instrumentality of Afghanistan.
While the FSIA fails to define the term “political subdivision,”
we have previously held that an entity is a political subdivision of a
80 See 28 U.S.C. § 1603(a) (“A ‘foreign state’ . . . includes a political
subdivision of a foreign state or an agency or instrumentality of a foreign state as
defined in subsection (b).”).
81 Owens v. Taliban, No. 22-cv-1949, 2023 WL 2214887, at *5 (S.D.N.Y. Feb. 24,
2023) (recognizing “DAB’s status as Afghanistan’s central bank, and, therefore, its
status as a sovereign’s agency or instrumentality whose assets are afforded
immunity from attachment under the FSIA”); In re Terrorist Attacks on September 11,
2001, 657 F. Supp. 3d 311, 326 (S.D.N.Y. 2023) (“Therefore, as a central bank, DAB
is the instrumentality of the foreign state of Afghanistan.”).

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33
foreign state when its core functions are predominantly governmental
rather than commercial.82 This is known as the “core functions test.”83
The FSIA draws clearer lines for us to follow in determining
which entities are agencies or instrumentalities of foreign states. It sets
forth that:
An “agency or instrumentality of a foreign state” means
any entity—(1) which is a separate legal person, corporate
or otherwise, and (2) which is an organ of a foreign state
or political subdivision thereof, or a majority of whose
shares or other ownership interest is owned by a foreign
state or political subdivision thereof, and (3) which is
neither a citizen of a State of the United States as defined
in section 1332(c) and (e) of this title, nor created under
the laws of any third country.84
Particularly relevant to our present inquiry is the fact that DAB
is the central bank of the state of Afghanistan.85 We have consistently
82 Garb v. Republic of Poland, 440 F.3d 579, 590-96 (2d Cir. 2006); see also id. at
599-600 (Straub, J., dissenting) (“The majority chooses the narrower core functions
test, holding that any government entity whose core functions are governmental
rather than commercial is by definition a political subdivision rather than an agency
or instrumentality.”).
83 See Schansman v. Sberbank of Russia PJSC, 128 F.4th 70, 77 (2d Cir. 2025)
(noting our articulation of “the core functions test” in Garb).
84 28 U.S.C. § 1603(b).
85 Afghanistan Bank Law, art. 1.1 (Dec. 17, 2003),
https://dab.gov.af/sites/default/files/2018-12/DABLaw1English_2.pdf
[https://perma.cc/L2TR-Y5Z9] (setting forth that “Da Afghanistan Bank is the
central bank of Afghanistan”).

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34
recognized that central banks qualify as agencies or instrumentalities
of foreign states under the FSIA.86 Indeed, we have previously gone so
far as to assert that central banks are “the paradigm of a state agency
or instrumentality,” noting that “the House Report . . . specifically
identified state central banks . . . in its discussion of qualifying entities
for purposes of § 1603(b).”87 Accordingly, from the outset, it appears
probable that DAB, as the central bank of the state of Afghanistan, is
its agency or instrumentality. For that reason, we will first assess
whether DAB is an agency or instrumentality of Afghanistan before
considering whether it is a political subdivision of Afghanistan.
Pre-Judgment Plaintiffs argue that it is not. Specifically, they
contend that DAB is not an agency or instrumentality of Afghanistan
because it does not satisfy the criteria set forth in 28 U.S.C. §
86 See, e.g., S & S Mach. Co. v. Masinexportimport, 706 F.2d 411, 414 (2d Cir.
1983) (holding that “[s]tate-owned central banks indisputably are included in the §
1603(b) definition” of an agency or instrumentality); EM Ltd. v. Republic of Argentina,
473 F.3d 463, 472 (2d Cir. 2007) (citing the aforementioned holding in S & S Mach.);
Chettri v. Nepal Rastra Bank, 834 F.3d 50, 55 (2d Cir. 2016) (noting that plaintiffs-
appellants “do not dispute the district court’s determination that . . . Rastra Bank[,
the central bank of Nepal,] is an agency or instrumentality of a foreign state”); Daou
v. BLC Bank, S.A.L., 42 F.4th 120, 133 (2d Cir. 2022) (noting that plaintiffs-appellants
concede “that BDL, as the central bank of Lebanon, is an agency or instrumentality
of the Lebanese state”).
87 S & S Mach. Co., 706 F.2d at 414; see also H.R. Rep. No. 1487, 94th Cong.,
2d Sess. 15-16, reprinted in 1976 U.S. Code Cong. & Ad. News 6604, 6614 (“[A]s a
general matter, entities which meet the definition of an agency or instrumentality
of a foreign state could assume a variety of forms, including . . . a central bank . . .
.”).

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35
1603(b)(2).88 To satisfy this subsection, an entity must either (1) be “an
organ of a foreign state or political subdivision thereof” or (2) have the
“majority of [its] shares or other ownership interest . . . owned by a
foreign state or political subdivision thereof.”89
Pre-Judgment Plaintiffs argue that because “DAB is supposed
to be ‘entirely independent’” under “the Afghanistan banking law that
originally created [it],” the second part of section 1603(b)(2) is
inapplicable.90 We disagree.
First, we note that the Afghanistan banking law referenced by
Pre-Judgment Plaintiffs helpfully establishes the other two criteria that
an entity must satisfy to be considered an agency or instrumentality
under the FSIA: that the entity is “a separate legal person, corporate or
otherwise” and that the entity “is neither a citizen of a State of the
United States . . . nor created under the laws of any third country.91
88 Pre-Judgment Plaintiffs’ Br. at 55.
89 28 U.S.C. § 1603(b)(2).
90 Pre-Judgment Plaintiffs’ Br. at 55.
91 28 U.S.C. § 1603(b)(1) and (b)(3). Article 1.1 of the Afghanistan Bank Law
establishes DAB as “the central bank of Afghanistan” and Article 1.2 establishes
that DAB “is a juridical person with full capacity under the law.” Afghanistan Bank
Law, art. 1.1-1.2 (Dec. 17, 2003), https://dab.gov.af/sites/default/files/2018-
12/DABLaw1English_2.pdf [https://perma.cc/L2TR-Y5Z9]. Accordingly, DAB is a
“separate legal person” under section 1603(b)(1) and is “neither a citizen of the
United States . . . nor created under the laws of any third country” under section
1603(b)(3).

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36
Contrary to Pre-Judgment Plaintiffs’ position, it also satisfies the
contested criteria—namely, the second part of section 1603(b)(2),
which requires that a majority of the entity’s “shares or other
ownership interest is owned by a foreign state or political subdivision
thereof.”92
Pre-Judgment Plaintiffs correctly observe that the Afghanistan
banking law vests DAB with substantial autonomy.93 But they
mistakenly conclude from that premise that Afghanistan does not hold
the majority of DAB’s ownership interest. Significantly, the
Afghanistan banking law sets forth the “[t]he capital of Da
Afghanistan Bank shall belong to the State [of Afghanistan].”94 And
indeed, a study analyzing the structure of central banks finds that DAB
is subject to “100% state ownership.”95
Accordingly, DAB—a juridical person created under the laws of
Afghanistan that is 100% owned by Afghanistan—meets each of the
92 28 U.S.C. § 1603(b)(2). Accordingly, as 28 U.S.C. § 1603(b)(2) sets forth a
disjunctive test, we do not need to consider whether DAB is also properly
considered an “organ” of Afghanistan under the first part of that subsection.
93 See Afghanistan Bank Law, art. 3 (Dec. 17, 2003),
https://dab.gov.af/sites/default/files/2018-12/DABLaw1English_2.pdf
[https://perma.cc/L2TR-Y5Z9].
94 Id. at art. 27.2. The banking law further sets forth that “Da Afghanistan
Bank shall establish and maintain the international reserves of Afghanistan.” Art.
72.1.
95 See Jan Weidner, The Organisation and Structure of Central Banks,
Dissertation, Appendix Central Bank Handbook 192 (2017), https://d-
nb.info/1138787981/34 [https://perma.cc/P5TN-UZBY].

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37
three requirements set forth in section 1603(b).96 It is therefore an
agency or instrumentality of Afghanistan under the FSIA.97
3. DAB Has Execution Immunity Under the FSIA
To conclude our FSIA analysis, we turn to 28 U.S.C. §§ 1609-1611
to determine if DAB’s FRBNY-held assets are afforded execution
immunity.
28 U.S.C. § 1609 states in relevant part that “the property in the
United States of a foreign state shall be immune from attachment[,]
arrest[,] and execution except as provided in sections 1610 and 1611 of
this chapter.”98 None of the exceptions in section 1610 apply to DAB
or the independent state of Afghanistan, and Pre-Judgment Plaintiffs
do not argue otherwise.99
Section 1611 provides exceptions that, in effect, counteract the
exceptions to immunity contained in section 1610: In other words,
96 There is therefore no need to assess whether DAB also qualifies as a
political subdivision of Afghanistan, and we make no determinations on that front.
97 We agree with Pre-Judgment Plaintiffs that the Judiciary cannot rely on
an articulation by the Executive to resolve the matter of agencies or
instrumentalities under the FSIA. See Pre-Judgment Plaintiffs’ Br. at 42, 47-48. But
as both courts below noted, and as we hold today, DAB unquestionably meets the
FSIA’s definition of agency or instrumentality by virtue of being Afghanistan’s
state-owned central bank.
98 28 U.S.C. § 1609.
99 Section 1610 contains various exceptions to a foreign state’s immunity
from attachment or execution, but none apply to the case at hand. See 28 U.S.C. §
1610.

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38
some of what section 1610 lays bare, section 1611 recloaks in
immunity. As none of section 1610’s exceptions apply, we need not
reach section 1611.100 Accordingly, we conclude that the FSIA also
vests DAB with execution immunity.
C. The Terrorism Risk Insurance Act Abrogates Jurisdictional and
Execution Immunity Afforded an Entity Under the Foreign
Sovereign Immunities Act, but it Does Not Apply to This Case
Because DAB Is Not an Agency or Instrumentality of the Taliban
Under the TRIA
Having found that DAB has execution immunity under the
FSIA, and assuming, arguendo, that DAB is also entitled to
jurisdictional immunity under the FSIA (as was determined by the
District Court [GBD]), we must now consider whether those grants of
immunity withstand another statute: the Terrorism Risk Insurance Act
of 2002 (the “TRIA”). If either or both survive the TRIA, and if
jurisdictional immunity inures to DAB’s benefit, then we lack subject
matter jurisdiction to consider Judgment Plaintiffs’ case, as the court
below held. If neither survives, then we must move on to consider
whether the TRIA applies to the facts before us.
1. The TRIA Abrogates Jurisdictional and Execution Immunity and
Independently Provides Subject Matter Jurisdiction
100 So, while we agree with the District Court (VEC) that DAB has execution
immunity under the FSIA, we do not reach section 1611(b)(1) to make this
determination; instead, we rely on section 1609. See Owens v. Taliban, No. 22-cv-
1949, 2023 WL 2214887, at *5-6 (S.D.N.Y. Feb. 24, 2023).

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39
Congress enacted the TRIA in 2002. Section 201(a) of the TRIA
sets forth that:
Notwithstanding any other provision of law, and except
as provided in subsection (b), in every case in which a
person has obtained a judgment against a terrorist party
on a claim based upon an act of terrorism, or for which a
terrorist party is not immune under section 1605(a)(7) of
title 28, United States Code, the blocked assets of that
terrorist party (including the blocked assets of any agency
or instrumentality of that terrorist party) shall be subject
to execution or attachment in aid of execution in order to
satisfy such judgment to the extent of any compensatory
damages for which such terrorist party has been
adjudged liable.101
The first clause of the statute—which provides that the TRIA
applies “[n]otwithstanding any other provision of law”—carries great
weight in our analysis of how the TRIA interacts with the FSIA. The
Supreme Court has observed that “notwithstanding” clauses, like the
one contained in the TRIA, have generally been “interpreted . . . to
supersede all other laws,” and that to provide a “clearer statement [of
a drafter’s intent that they so supersede] is difficult to imagine.”102
101 Terrorism Risk Insurance Act of 2002, Pub. L. No. 107-297, § 201(a), 116
Stat. 2337, 2337-40, as amended, Pub. L. No. 112-158, 126 Stat. 1214, 1260 (codified at
note following 28 U.S.C. § 1610).
102 Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993) (internal quotation
marks and citation omitted).

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40
Indeed, the Supreme Court has spoken in such terms of the TRIA’s
own “notwithstanding” clause.103
Our own, earlier consideration of the TRIA’s “notwithstanding”
clause had been to the same effect. We noted that it is a “broad
provision”104 that overcomes any other provision of the law that
“conflicts with [the] TRIA.”105
The question, then, is whether the immunity provisions in the
FSIA conflict with the TRIA. If they do, those immunity provisions are
rendered inoperative in the face of the TRIA.
The District Court (GBD) analyzed this question, finding that
while the FSIA conflicted with the TRIA with respect to execution
immunity, it did not with respect to jurisdictional immunity.106 We
agree with its first assessment, but differ on the second.
First, we pause to observe that there can be no doubt that the
FSIA’s execution immunity provisions are superseded by the TRIA.
The Supreme Court has already held that “the FSIA’s central-bank
103 Bank Markazi v. Peterson, 578 U.S. 212, 217 n.2 (2016) (identifying that the
TRIA “take[s] precedence over ‘any other provision of law’” and, therefore, is not
limited by “the FSIA’s central-bank immunity provision”).
104 Peterson v. Islamic Republic of Iran, 758 F.3d 185, 190 n.2 (2d Cir. 2014), aff’d
sub nom. Bank Markazi v. Peterson, 578 U.S. 212 (2016).
105 Smith ex rel. Estate of Smith v. Fed. Reserve Bank of N.Y., 346 F.3d 264, 271
(2d Cir. 2003).
106 In re Terrorist Attacks on September 11, 2001, 657 F. Supp. 3d 311, 328-29
(S.D.N.Y. 2023).

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41
immunity provision,” which provides for execution immunity under
§§ 1609 and 1611(b)(1), does not “limit[] . . . the TRIA.”107 Binding
Supreme Court precedent thus holds that the TRIA supersedes the
FSIA’s grant of execution immunity.
The tougher question is whether the TRIA also overrides any
jurisdictional immunity that might be granted by the FSIA under §
1604. The District Court (GBD) determined that it does not, because no
conflict exists between the FSIA and the TRIA as to jurisdictional
immunity.108 This is so because, according to the District Court, the
TRIA is an execution statute, not a jurisdictional statute.109 The District
Court reasoned that the language of the TRIA closely resembled “the
other execution immunity language in the FSIA, distinguishing it from
the FSIA’s language abrogating jurisdictional immunity” and,
moreover, that TRIA § 201(a) exists as a note within 28 U.S.C. § 1610,
which is the section of the FSIA governing exceptions to execution
immunity.110
107 Bank Markazi v. Peterson, 578 U.S. 212, 217 n.2 (2016). The Supreme Court
explained that Congress enacted the TRIA “[t]o lessen . . . enforcement difficulties,”
with one of those difficulties being the execution immunity granted property of
foreign central banks under section 1611(b)(1). Id. at 217. Unsurprisingly, a sister
Circuit has likewise noted that “§ 201(a) of the TRIA supersedes” § 1609 of the FSIA.
Greenbaum v. Islamic Republic of Iran, 67 F.4th 428, 432 (D.C. Cir. 2023).
108 In re Terrorist Attacks on September 11, 2011, 657 F. Supp. 3d 311, 328-329
(S.D.N.Y. 2023).
109 Id. at 329.
110 Id. at 328.

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42
However well-reasoned the District Court (GBD)’s analysis may
be, we find that it is foreclosed by our decision in Weinstein v. Islamic
Republic of Iran.111 In Weinstein, Bank Melli, an instrumentality of a
terrorist party (the state of Iran), argued that the TRIA did not establish
jurisdiction over it. One of the reasons it offered to the court in support
of this proposition was the fact that “the TRIA has been codified as a
note to Section 1610 rather than in the sections of the FSIA more
directly addressed to exceptions to jurisdictional immunity.”112 We
disagreed. First, we explained that “the plain language of the statute
cannot be overcome by its placement in the statutory scheme.”113
Turning to that plain language, we concluded that TRIA § 201(a)’s
“notwithstanding” clause “mak[es] plain that the force of the section
extends everywhere.”114
Consistent with the foregoing, we hold that TRIA § 201(a)
supersedes the FSIA’s jurisdictional immunity provisions in addition
to its execution immunity provisions. We therefore conclude that
neither jurisdictional nor execution immunity can prevent us from
subjecting DAB to our jurisdiction under the TRIA.115
111 Weinstein v. Islamic Republic of Iran, 609 F.3d 43 (2d Cir. 2010).
112 Id. at 49.
113 Id.
114 Id.
115 This finding is consistent with our prior observation that “at the time the
FSIA was passed, the international community viewed execution against a foreign

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43
In the alternative, the District Court (GBD) held that TRIA §
201(a) does not provide it with the necessary subject matter
jurisdiction to review the case at hand.116 Not so. In Weinstein, we
“f[ou]nd it clear beyond cavil that Section 201(a) of the TRIA provides
courts with subject matter jurisdiction over post-judgment execution
and attachment proceedings against property held in the hands of an
instrumentality of the judgment-debtor, even if the instrumentality is
not itself named in the judgment.”117
The case before us concerns the post-judgment execution
proceedings brought by Judgment Plaintiffs. It is against property
(DAB’s FRBNY-held funds) allegedly owned by an instrumentality
(DAB) of the judgment-debtor (the Taliban). The TRIA thus plainly
provided the District Court with subject matter jurisdiction.
The District Court (GBD) found otherwise, reading Weinstein’s
holding as applying only to the instrumentalities and agencies of
state’s property as a greater affront to its sovereignty than merely permitting
jurisdiction over the merits of an action.” Walters v. Indus. and Com. Bank of China,
Ltd., 651 F.3d 280, 289 (2d Cir. 2011) (quoting Conn. Bank of Com. v. Republic of Congo,
309 F.3d 240, 255-56 (5th Cir. 2002)). It can therefore be of little surprise that the
TRIA, which indisputably abrogates attachment and execution immunity—which
Walters would characterize as the “greater affront”—also abrogates jurisdictional
immunity—the lesser affront.
116 In re Terrorist Attacks on September 11, 2011, 657 F. Supp. 3d 311, 330-331
(S.D.N.Y. 2023).
117 Weinstein, 609 F.3d at 50 (emphasis added).

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44
foreign states that have been stripped of immunity under the FSIA.118
But the holding cannot be so limited. We reached it after examining
the meaning of the TRIA and analyzing its legislative history, and we
did not conclude that it had the limits now drawn by the District
Court.119
Nor could we have done otherwise. As already discussed, the
TRIA applies “[n]otwithstanding any other provision of the law.”120
Yet the District Court (GBD)’s proposed articulation of Weinstein’s
holding suggests that the TRIA’s subject matter jurisdiction is
curtailed by the very law it was intended to supersede. It would mean
that the TRIA, despite its clear language stating that the blocked assets
of a terrorist party’s agency or instrumentality “shall be subject to
execution or attachment” notwithstanding “any other provision of
law,” would have a built-in exception for certain entities that, in
addition to being the agencies or instrumentalities of a terrorist party,
were also separately designated as the agencies or instrumentalities of
118 In re Terrorist Attacks on September 11, 2001, 657 F. Supp. 3d 311, 330-331
(S.D.N.Y. 2023) (examining Weinstein and concluding that the TRIA only grants
subject matter jurisdiction over agencies and instrumentalities not named in the
original judgment when “the sovereign’s loss of jurisdictional immunity in the
underlying judgment flows through to the instrumentality in the attachment
proceeding”).
119 Weinstein, 609 F.3d at 49-50 (finding that the “plain language of Section
201(a)” constituted “an independent grant of jurisdiction over the agencies and
instrumentalities” and that “even if . . . there were an ambiguity here, it would be
resolved in plaintiff’s favor by the legislative history”).
120 TRIA § 201(a).

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45
a foreign state granted immunity under the FSIA. Such an
interpretation would betray the plain language of the TRIA’s
“notwithstanding” clause by limiting its jurisdiction with back-
reference to an FSIA immunity determination—marking an
unmistakable conflict between the TRIA and the FSIA that is flatly
prohibited by § 201(a)’s “notwithstanding” clause.121
In sum, we find that the TRIA overrides any jurisdictional or
execution immunities granted to DAB by the FSIA and creates an
independent basis for the court to exercise subject matter jurisdiction
over DAB’s blocked assets—provided that DAB is an agency or
instrumentality of the Taliban.
2. DAB Is Not an Agency or Instrumentality of the Taliban
Under the TRIA
Herein lies the rub. When reviewing the applicability of the
TRIA, the District Court (GBD) went through the statutory criteria and
held that Judgment Plaintiffs “satisf[ied] all but one element.”122 That
one element was the TRIA’s requirement that “the blocked assets must
be the assets of the terrorist party or the terrorist party’s agency or
121 This analysis also forecloses the suggestion that the TRIA could only be
wielded against DAB if Afghanistan were designated as a state sponsor of
terrorism. In re Terrorist Attacks on September 11, 2001, 657 F. Supp. 3d 311, 331-332
(S.D.N.Y. 2023).
122 In re Terrorist Attacks on September 11, 2001, 657 F. Supp. 3d 311, 333
(S.D.N.Y. 2023).

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46
instrumentality.”123 We agree with the District Court that this element
is missing (albeit for a different reason than the one articulated by the
District Court [GBD]), and we find that the TRIA is ultimately
inapplicable to the case before us.124 We therefore affirm the District
Court’s judgment denying Judgment Plaintiffs’ motions for turnover
of DAB funds.
As noted earlier, the TRIA sets forth in relevant part that “the
blocked assets of th[e] terrorist party (including the blocked assets of
any agency or instrumentality of that terrorist party) shall be subject
to execution or attachment.”125 Judgment Plaintiffs argue that while
the blocked assets are not those of the terrorist party at issue here (the
Taliban), they are the blocked assets of an agency or instrumentality of
the Taliban: DAB.126 We must therefore determine whether DAB is
123 Id.
124 The District Court (GBD) reaches this conclusion by reasoning that it was
constitutionally restrained from finding that the Taliban controlled the funds of the
central bank of Afghanistan, as doing so would recognize the Taliban as the
government of Afghanistan and contravene the Executive’s recognition power. In
re Terrorist Attacks on September 11, 2001, 657 F. Supp. 3d 311, 333-336 (S.D.N.Y.
2023). We decide on a different ground, and thus do not reach this issue pursuant
to our general rule regarding the avoidance of constitutional issues. See Allstate Ins.
Co. v. Serio, 261 F.3d 143, 149-150 (2d Cir. 2001) (“It is axiomatic that the federal
courts should, where possible, avoid reaching constitutional questions.”).
125 TRIA § 201(a).
126 Judgment Plaintiffs’ Br. on behalf of Havlish, Doe, Federal Insurance, and
Smith Creditors at 1.

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47
properly considered an agency or instrumentality of the Taliban under
the TRIA. We conclude that it is not.
Though we must first turn to the plain language of the statute,
we note that, unlike the FSIA, the TRIA fails to provide a definition for
“agency or instrumentality.”127 We have previously held that the
FSIA’s definition cannot double as the TRIA’s,128 and have instead
fashioned our own definition of those terms “according to their
ordinary meanings.”129 In that earlier case—Kirschenbaum—we held
that an entity is an agency or instrumentality of a terrorist party under
the TRIA if it “(1) was a means through which a material function of
the terrorist party is accomplished, (2) provided material services to,
on behalf of, or in support of the terrorist party, or (3) was owned,
controlled, or directed by the terrorist party.”130 As the disjunctive “or”
indicates, an entity is an agency or instrumentality of a terrorist party
under the TRIA as long as it satisfies at least one of these three
conditions.
127 See Kirschenbaum v. 650 Fifth Ave. and Related Props., 830 F.3d 107, 132 (2d
Cir. 2016) (“While the FSIA defines ‘agency or instrumentality,’ the TRIA,
unfortunately, does not.” (internal citations omitted)).
128 Id. at 133 (holding that “applying the FSIA’s definition of agency or
instrumentality” would “contravene a plain reading of the TRIA”).
129 Id. at 135.
130 Id.

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48
It is thus clear what definition we are to use to determine
whether DAB is an agency or instrumentality of the Taliban. What is
less clear is when we are to apply that definition to DAB.
In Kirschenbaum, the case in which we defined “agency or
instrumentality” for purposes of the TRIA, we concluded that, under
the FSIA, “an entity’s agency or instrumentality status . . . ‘is
determined at the time of the filing of the complaint’” because
“jurisdiction ‘depends upon the state of things at the time . . . the action
[is] brought’” and “not necessarily ‘as of the time an alleged tort or
other actionable wrong occurred.’”131 Nowhere did we analyze when
an entity’s agency or instrumentality status should be determined
under the TRIA. Instead, after holding that the FSIA’s definition of
“agency or instrumentality” does not apply to the TRIA, we appeared
to transport, in passing and without explanation, the same timing test
we use to make the “agency or instrumentality” determination under
the FSIA.132
But that timing test cannot be appropriate in the TRIA context
for at least two reasons. First, the logic undergirding the timing test for
FSIA agency or instrumentality determinations that we recounted in
131 Id. at 126 (quoting Dole Food Co. v. Patrickson, 538 U.S. 468, 471, 478, 480
(2003)).
132 Id. at 136 (“Further, insofar as Plaintiffs contend that Alavi itself was
sufficiently owned, controlled, or directed by Iran to render it an agency or
instrumentality of a terrorist party under the TRIA, questions of fact exist as to
whether Alavi was so owned, controlled, or directed at the time Plaintiffs’ complaints
were filed.” (emphasis added)).

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49
2016 in Kirschenbaum—and, indeed, the test itself—no longer controls
in our Circuit. In Bartlett v. Baasiri (2023), we held that “immunity
under the [FSIA] may attach when a defendant becomes an
instrumentality of a foreign sovereign after a suit is filed.”133 We made
this determination by examining the “structure of the FSIA”134 and the
purposes of foreign sovereign immunity.135 Accordingly, we can no
longer say, as we seemed to suggest in Kirschenbaum, that FSIA
immunity is determined at the time of the complaint’s filing because
jurisdiction depends on the state of affairs at the time the action was
brought; both the rule and its rationale were plainly unseated by our
holding in Bartlett.
Second, for the same reason that it is improper to simply adopt
the FSIA’s definition of “agency or instrumentality” for purposes of
the TRIA, it is improper to transpose our rule governing the time at
which we evaluate an entity’s “agency or instrumentality” status for
133 Bartlett v. Baasiri, 81 F.4th 28, 33 (2d Cir. 2023) (emphasis added). We
reaffirmed this was so in a later case. See Schansman v. Sberbank of Russia PJSC, 128
F.4th 70, 79 (2d Cir. 2025) (holding that “an entity’s status as an agency or
instrumentality” need not be determined “at the time an action is filed,” an issue
that we “squarely decided” in Bartlett).
134 Bartlett, 81 F.4th at 33 (noting that the FSIA “gives foreign states
immunity not only from judgments, but from process, too,” so there is “no reason
why that protection should apply only if the defendant had sovereign status from
the beginning of the suit”).
135 Id. (discussing the reason for foreign sovereign immunity as opposed to
other immunities, and noting that it seeks to give foreign states “some protection
from the inconvenience of suit as a gesture of comity between the United States and
other sovereigns” (quoting Dole Food, 538 U.S. at 479)).

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50
purposes of the FSIA onto our test governing the same under the
TRIA. The TRIA is a fundamentally different statute than the FSIA,
and it is a mistake to uncritically apply precepts from our FSIA
jurisprudence in the TRIA context. Under the FSIA, we are using the
“agency or instrumentality” test to, in substantial part, determine
whether an entity should be granted jurisdictional or execution
immunity. This is the logic that guides our new rule in Bartlett
concerning when we evaluate an entity’s possible status as an agency
or instrumentality. But as set forth above, the TRIA cares nothing for
immunity. Accordingly, ensuring that we capture an entity’s present-
day immunity eligibility under the FSIA cannot be the controlling
factor for deciding the time at which we must evaluate whether an
entity is an agency or instrumentality for purposes of the TRIA.
To determine what time is appropriate, we first turn to the text
of the TRIA. While no guidance is provided there for determining the
date of assessment, we find particularly relevant the TRIA’s
requirement that the property subject to execution or attachment is an
entity’s “blocked assets.”136 The TRIA sets forth that a “blocked asset”
is “any asset seized or frozen by the United States” under one of three
statutory provisions.137 From review of these statutes, it emerges that
“blocking” is a status imposed by the United States at a certain time.
As blocking is also a critical factor upon which TRIA applicability
136 TRIA § 201(a).
137 TRIA § 201(d)(2)(A). Those statutory provisions are “section 5(b) of the
Trading With the Enemy Act (50 U.S.C. App. 5(b))” and “sections 202 and 203 of
the International Emergency Economic Powers Act (50 U.S.C. 1701; 1702).” Id.

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51
turns, there is some immediate appeal to utilizing the blocking date as
the relevant time at which to assess the agency or instrumentality
question.
The attractiveness of this approach only deepens with further
consideration of both what the blocking mechanism entails and the
purpose of the TRIA. Once an entity’s asset is seized or frozen, the
entity can exert no control over it; the entity cannot use the asset to
further its own objectives or the objectives of any party for which it
operates as an agency or instrumentality.138 There is thus great value
in determining what a given entity’s status was in relation to a given
terrorist party at the time those assets were blocked: If an entity
becomes an agency or instrumentality of a terrorist party after that
entity’s property is blocked, those blocked assets cannot have been
utilized to further the mission of the terrorist party.
The blocking date therefore serves as a critical inflection point
ripe for determining the time at which we should evaluate an entity’s
status under the TRIA as an agency or instrumentality. This approach
is buttressed by consideration of the purpose of the statute. As
Congress set forth, the purpose of TRIA § 201 is to enable the victims
of terrorism to collect on judgments against terrorist parties “through
138 For example, the Office of Foreign Asset Control sets forth that when
property is blocked, while “[t]itle to the blocked property remains with the blocked
[entity] . . . the exercise of powers and privileges normally associated with
ownership is prohibited without authorization from OFAC.” United States
Department of the Treasury, OFAC FAQs No. 9 (Sep. 10, 2002),
https://ofac.treasury.gov/faqs/9 [https://perma.cc/2A8R-ZLTE] (last updated Aug.
21, 2024).

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52
the attachment of blocked assets of terrorist parties.”139 Surely, though,
blocked assets are not “of” a terrorist party if those assets did not
belong to either the terrorist party, or an entity then operating as an
agency or instrumentality of the terrorist party, as of the date that the
assets were blocked. Accordingly, while we apply a broader definition
of agency or instrumentality under the TRIA than we do under the
FSIA, understanding that terrorist parties “may operate with less
transparency than other sovereign countries,”140 we do not do so free
of rational limits. Today we identify one such limit: When we
determine whether an entity is an agency or instrumentality of a
terrorist party under the TRIA, we assess that entity’s status as of the
date that the assets at issue were blocked.
In the case before us, it is uncontested that the blocking date was
August 15, 2021—which, not coincidentally, was the same date that
Kabul fell to the Taliban.141 We therefore assess DAB’s status as of that
date and examine whether it satisfies any of the three independently
sufficient prongs of the TRIA definition of “agency or instrumentality”
that we set forth in Kirschenbaum. We find that it does not.
First, there is no evidence that DAB “was a means through
which a material function of the [Taliban] is accomplished.”142 Indeed,
139 H.R. Conf. Rep. 107-779, 2002 WL 31529126, at *27 (2002).
140 Kirschenbaum, 830 F.3d at 134.
141 See Judgment Plaintiffs’ Br. at 12, 24.
142 Kirschenbaum, 830 F.3d at 135.

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53
it is hard to imagine how it could have been, when the Taliban did not
even seize Kabul until August 15, 2021. There is no suggestion that
DAB was aiding the Taliban in any manner as of the date its FRBNY-
held assets were blocked.
Second, for similar reasons, there is no evidence that DAB
“provided material services to, on behalf of, or in support of the
[Taliban]” as of August 15, 2021.143 Indeed, the President blocked the
assets precisely to “keep[] them out of the hands of the Taliban and
other malign actors.”144
Third and finally, there is no evidence to suggest that DAB “was
owned, controlled, or directed by the [Taliban]” as of that date.145 Even
assuming arguendo that the Taliban “controlled” DAB when it installed
an alleged loyalist to head the organization, the Taliban did not do so
until August 23, 2021—more than a week after the relevant date for
evaluating “agency or instrumentality” status.146
In sum: There is quite simply no plausible foothold in the record
that would enable Judgment Plaintiffs to mount a credible argument
143 Id.
144 Press Release, U.S. Dep’t of the Treasury, Joint Statement by U.S.
Treasury and State Department: The United States and Partners Announce
Establishment of Fund for the People of Afghanistan (Sep. 14, 2022),
https://home.treasury.gov/news/press-releases/jy0947 [https://perma.cc/952K-
6TEY].
145 Kirschenbaum, 830 F.3d at 135.
146 Judgment App’x 265-67.

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54
that DAB was an agency or instrumentality of the Taliban on the date
its FRBNY-held funds were blocked on August 15, 2021. We are thus
required to hold that DAB is not an agency or instrumentality of the
Taliban under the TRIA, and consequently, that the TRIA does not
apply to the case before us. We therefore affirm the District Court
(GBD)’s denial of Judgment Plaintiffs’ motions for turnover of DAB
funds.
III. CONCLUSION
To summarize, we hold as follows:
(1) A district court may consider the applicability of attachment
or execution immunity sua sponte even when the sovereign
status of the property at issue is disputed;
(2) The Executive Branch’s formal recognition of a state or
government establishes that state or government as a foreign
state for purposes of the Foreign Sovereign Immunities Act;
(3) Because the Executive Branch formally recognizes
Afghanistan as an independent state, Afghanistan is a
foreign state for the purpose of our analysis of DAB under
the Foreign Sovereign Immunities Act;
(4) Under the Foreign Sovereign Immunities Act, DAB is an
“agency or instrumentality” of the foreign state of
Afghanistan, and is therefore entitled to execution immunity
under 28 U.S.C. § 1609;

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55
(5) The Terrorism Risk Insurance Act abrogates any
jurisdictional or execution immunity granted by the Foreign
Sovereign Immunities Act;
(6) The Terrorism Risk Insurance Act provides district courts
with an independent basis to exercise subject matter
jurisdiction over the blocked assets of a terrorist party’s
agency or instrumentality;
(7) An entity’s “agency or instrumentality” status under the
Terrorism Risk Insurance Act is to be assessed as of the date
that the assets at issue were blocked; and
(8) The Terrorism Risk Insurance Act does not apply to this case
because DAB was not an agency or instrumentality of the
Taliban when its FRBNY-held assets were blocked.
For the foregoing reasons, we AFFIRM the District Court
(VEC)’s order denying Pre-Judgment Plaintiffs’ motion to confirm the
pre-judgment attachment and we likewise AFFIRM the District Court
(GBD)’s order denying Judgment Plaintiffs’ turnover motions.

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23-258(L)
Havlish v. Taliban
RICHARD J. S ULLIVAN, Circuit Judge, concurring in part and dissenting in part:
The Supreme Court has long made clear that interpretation of the “reach”
of the Foreign Sovereign Immunities Act (the “FSIA”) is a “pure question of
statutory construction” that is “well within the province of the [j]udiciary.”
Republic of Austria v. Altmann, 541 U.S. 677, 701 (2004) (internal quotation marks
omitted). Our caselaw likewise recognizes that the FSIA “vested sole responsibility
for applying [its] standards in the federal judiciary.” Beierwaltes v. L’Office Federale
de la Culture de la Confederation Suisse, 999 F.3d 808, 818 (2d Cir. 2021) (emphasis
added). Remarkably, the majority today turns those foundational principles on
their head, concluding that “[t]he Executive Branch’s formal recognition of a state
or government establishes that state or government as a foreign state for purposes
of the [FSIA].” Maj. Op. at 54. To reach this conclusion, the majority turns a blind
eye to the history of the FSIA, ignores nearly thirty-five years of our own
precedents, and misinterprets a single Supreme Court decision involving an
unrelated statute to obscure the Court’s clear precedent on the FSIA.
The majority’s error is compounded by its flawed interpretation of the
Terrorism Risk Insurance Act of 2002 (“TRIA”). Even though this issue was never
considered by the district court, briefed by the parties, or discussed at oral

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2
argument, the majority reaches out to hold, for the first time, that “[a]n entity’s
‘agency or instrumentality’ status under [TRIA] is to be assessed as of the date that
the assets at issue were blocked.” Id. at 55. This conclusion is unsupported by any
legal authority. More importantly, it is at odds with the text and purpose of TRIA
and our longstanding approach to determining immunity from execution, which
looks to conditions at the time the writ of execution is issued.
The majority’s interpretive gymnastics risk upending a carefully
constructed statutory scheme and may have unforeseen downstream
consequences for future FSIA (and TRIA) cases. It is for this reason the Supreme
Court has taken pains to emphasize that “it is not our role to rewrite the FSIA”;
that task lies squarely with Congress. Turkiye Halk Bankasi A.S. v. United States, 598
U.S. 264, 280 (2023). Accordingly, I respectfully dissent.
I. The District Court Was Permitted to Sua Sponte Consider the Issue of
Attachment Immunity
As a threshold matter, I agree with the majority that a district court may, but
is not required to, sua sponte consider the issue of attachment (or execution)
immunity “even when the sovereign status of the property at issue is disputed.”
Maj. Op. at 20–21. I therefore concur with Section II.A of the majority opinion,
which is clearly supported by both the text and structure of the FSIA.

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3
As the majority rightly notes, the FSIA’s mandatory language that certain
property “shall be immune,” 28 U.S.C. § 1609, “signals that . . . immunity inures in
the property itself and applies without regard to how the issue is raised,” Walters
v. Indus. & Com. Bank of China, Ltd., 651 F.3d 280, 291 (2d Cir. 2011). For this reason,
the Seventh Circuit has explained that “immunity does not depend on the foreign
state’s appearance in the case.” Rubin v. The Islamic Republic of Iran, 637 F.3d 783,
799 (7th Cir. 2011). Rather, “immunity is presumed[,] and the court must find an
exception – with or without an appearance by the foreign state – . . . to give effect
to the statutory scheme.” Id. at 800; see also Peterson v. Islamic Republic of Iran, 627
F.3d 1117, 1125 (9th Cir. 2010) (“The structure of the FSIA – which codifies the
background rule that foreign states are immune from suit and execution, and then
creates narrow exceptions – suggest[s] that courts must begin with the
presumption that a foreign state is immune and then the plaintiff must prove that
an exception to immunity applies.”). Likewise, the fact that execution immunity
does not apply where the foreign state waives immunity, see 28 U.S.C. § 1610(a)(1),
“strongly suggests that immunity from execution is presumed and waiver of
immunity is the exception,” Rubin, 637 F.3d at 800. This interpretation of the FSIA
is further supported by “the common-law practice” whereby courts regularly

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4
determined immunity “without regard to the foreign state’s appearance in the
case.” Id. at 800–01; see also Peterson, 627 F.3d at 1126–27.
The Aliganga plaintiffs nevertheless insist that the district court had no
authority to sua sponte consider attachment immunity because the sovereign status
of the property at issue was disputed. But that is hardly dispositive, since each of
the above arguments based on the text and structure of the FSIA applies with equal
force even when the sovereign status of the property is disputed. I therefore agree
with the majority that the district court in Aliganga did not err in sua sponte
examining the immunity issue. That, however, is where my agreement with the
majority’s interpretation of the FSIA ends.
II. Afghanistan Is Not a Foreign State Within the Meaning of the FSIA
The majority concludes that the Da Afghanistan Bank (“DAB”) funds are
immune from attachment and execution under FSIA section 1609, which provides
that “the property in the United States of a foreign state shall be immune from
attachment[,] arrest[,] and execution.” 28 U.S.C. § 1609.
Naturally, the first step in determining whether section 1609 applies is to
identify whether Plaintiffs seek to attach the property of a foreign state. While the
FSIA does not define what constitutes a foreign state, our binding caselaw “has
limited the definition of ‘state’ to entities that have a defined territory and a

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permanent population, that are under the control of their own government, and
that engage in, or have the capacity to engage in, formal relations with other such
entities.” Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro
in Amministrazione Straordinaria, 937 F.2d 44, 47 (2d Cir. 1991) (alterations accepted
and internal quotation marks omitted); see also, e.g., Kirschenbaum v. 650 Fifth Ave.
& Related Props., 830 F.3d 107, 123 (2d Cir. 2016) (applying Klinghoffer definition of
foreign state).
Applying that definition here, Afghanistan clearly lacks the core attributes
of statehood. It is undisputed that Afghanistan is no longer “under the control of
[its] own government,” Klinghoffer, 937 F.2d at 47 (internal quotation marks
omitted), but rather is controlled by a non-state actor, the Taliban. The previous
government of Afghanistan fled the country and is now defunct. There is not even
a government in exile seeking to assert its right to govern the territory. Tellingly,
the United States does not recognize “the Taliban or any other entity as the
Government of Afghanistan or as part of such a government.” Bureau of S. &
Cent. Asian Affs., U.S. Relations with Afghanistan, U.S. Dep’t of State (Aug. 15,
2022), https://perma.cc/T45B-WQ8A; cf. Baker v. Carr, 369 U.S. 186, 212 (1962)
(“[W]ithout executive recognition[,] a foreign state has been called a republic of

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whose existence we know nothing.” (internal quotation marks omitted)). Nor has
any other country recognized the Taliban as the government of Afghanistan. See
Aliganga App’x at 283. In fact, the United Nations has repeatedly refused to grant
diplomatic credentials to Taliban officials. See Michelle Nichols, Afghan Taliban
Administration, Myanmar Junta Not Allowed into United Nations for Now, Reuters
(Dec. 14, 2022, 8:29 PM ET), https://perma.cc/HYL4-D2L2. And even if the Taliban
may one day be vanquished and a democratic government may return to
Afghanistan, “the status quo continues” today, Morgan Guar. Tr. Co. of N.Y. v.
Republic of Palau, 924 F.2d 1237, 1244 (2d Cir. 1991), and we must determine
immunity based on conditions “at the time the writ of attachment or execution
[was] issued,” Aurelius Cap. Partners, LP v. Republic of Argentina, 584 F.3d 120, 130
(2d Cir. 2009) (emphasis omitted).
Afghanistan – as distinct from the Taliban – no longer “engage[s] in, or [has]
the capacity to engage in, formal relations with other” states. Klinghoffer, 937 F.2d
at 47 (internal quotation marks omitted); see also Restatement (Third) of the Foreign
Relations Law of the United States § 201 cmt. e (Am. L. Inst. 1987) (“An entity is
not a state unless it has competence, within its own constitutional system, to
conduct international relations with other states, as well as the political, technical,

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and financial capabilities to do so.”). Many of Afghanistan’s embassies have been
forced to close, and its former diplomats face the risk of deportation. See, e.g., Lara
Jakes, Afghan Embassy, Now out of Money, Will Shut Down, U.S. Says, N.Y. Times
(Mar. 11, 2022), https://perma.cc/WZ7C-RWM7. And even though one of the amici
in these appeals calls himself the Chargé D’Affaires of the Permanent Mission of the
Islamic Republic of Afghanistan to the United Nations, he openly admits that “he
does not represent the former government of Afghanistan nor the interest of any
political group” but rather “strives to represent the interests of the Afghan
people.” Faiq Amicus Br. at 1–2 (alterations accepted and internal quotation marks
omitted).
At present, Afghanistan is more akin to a failed state. See Failed State, Black’s
Law Dictionary (12th ed. 2024) (“A state that does not or cannot meet or maintain
some of the basic social, economic, or political conditions and responsibilities of a
sovereign government.”). Attributes of a failed state – each of which are present
here – “include the loss of physical control of its territory, an inability to provide
reasonable public services, and the erosion of legitimate authority.” Id. It is
therefore clear to me that Afghanistan no longer meets the definition of a foreign
state and thus the DAB funds are not covered by the FSIA.

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But rather than engage in this inquiry, the district court in Aliganga simply
accepted the Executive Branch’s assertion that the DAB funds were the property
of a foreign state and thus immune from attachment. In fact, the district court
issued its decision refusing to confirm its prejudgment attachment order the very
same day that the Executive Branch outlined its views on immunity without giving
Plaintiffs any opportunity to respond. Such blind deference to the Executive runs
contrary to the purpose of the FSIA and longstanding precedent.
As the Supreme Court has recounted, prior to the passage of the FSIA,
immunity determinations were left to the Executive Branch, which generated
countless problems because “foreign nations often placed diplomatic pressure on
the State Department in seeking immunity,” causing “political considerations,”
rather than predictable legal principles, to dictate the outcome. Verlinden B.V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 487 (1983). As a result, Congress passed the
FSIA to strip the immunity determination from the Executive Branch and ensure
that it was “made on purely legal grounds and under procedures that insure due
process.” Id. at 488 (internal quotation marks omitted). The FSIA therefore
“vested sole responsibility for applying [its] standards in the federal judiciary.”
Beierwaltes, 999 F.3d at 818 (emphasis added). And “[w]hile the United States’

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views on [immunity] are of considerable interest,” the Supreme Court has
emphatically held that such views “merit no special deference.” Altmann, 541 U.S.
at 701.
The majority endorses the district court’s error by holding that “[t]he
Executive Branch’s formal recognition of a state or government establishes that
state or government as a foreign state for purposes of the Foreign Sovereign
Immunities Act.” Maj. Op. at 54. This case marks the first time that any Circuit
across the country has reached such a sweeping conclusion. Not only does this
holding fly in the face of the well-established principles that courts have used to
interpret the FSIA, it also effectively overrules our decision in Klinghoffer. It is
axiomatic that we are “bound by the decisions of prior panels until such times as
they are overruled either by an en banc panel of our Court or by the Supreme
Court.” United States v. Peguero, 34 F.4th 143, 158 (2d Cir. 2022) (internal quotation
marks omitted). Neither has occurred here.
The majority advances three arguments in an attempt to escape the
conclusion that it is single-handedly overturning Circuit precedent, but none is
persuasive.

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First, the majority seeks to cabin our use of the Klinghoffer definition to
situations in which there is no “express determination from the Executive Branch”
on whether to recognize a foreign state. Maj. Op. at 29. But there is nothing in
Klinghoffer or our subsequent caselaw to even remotely suggest that our use of that
definition is limited to contexts where the Executive Branch has not made a formal
recognition decision.
Second, the majority asserts that its holding is compelled by the Supreme
Court’s more recent decision in Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1
(2015). Zivotofsky, of course, did not involve the FSIA but rather examined the
constitutionality of a statute that required American embassy officials, upon
request, to list on passports that Israel was the place of birth of American children
born in Jerusalem. See id. at 7. The majority latches onto the Supreme Court’s
unremarkable statement that it is the “exclusive power of the President to control
recognition determinations,” id. at 32, to conflate the formal recognition of a
foreign state, which is within the sole province of the Executive, with a
determination of whether an entity is covered by the FSIA, which is a task for the
judiciary.

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11
Indeed, in Zivotofsky, the Supreme Court made clear that “[t]he Executive’s
exclusive power extends no further than his formal recognition determination,”
and affirmed that Congress could take a variety of actions that might “express its
disagreement with the President” on the issue of recognition, such as by declining
to confirm an ambassador or fund an embassy, enacting an embargo, or declaring
war. Id. at 30 (emphasis added). In other words, Zivotofsky drew a line between
“an official executive statement implicating recognition” – which is the sole
prerogative of the Executive – and other acts that fall short of formal recognition
and can be undertaken by other branches. Id.
The determination of whether an entity is entitled to immunity under the
FSIA clearly falls into the latter category. As the Supreme Court has explained,
“interpretation of the FSIA’s reach” is a “pure question of statutory construction.”
Altmann, 541 U.S. at 701 (internal quotation marks omitted); see also Restatement
(Fourth) of the Foreign Relations Law of the United States § 452 rptr. n.1 (Am. L.
Inst. 2018) (noting that “the President has the exclusive power to recognize foreign
states for diplomatic purposes,” but “[c]lassification as a foreign state for FSIA
purposes is a matter of statutory interpretation”). A court’s interpretation of
whether a certain entity constitutes a foreign state within the meaning of the FSIA

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12
does not tread on the Executive’s authority to formally recognize (or withdraw
recognition of) that entity, nor does it compel any diplomatic action from the
Executive. As Professor William Burke White, who submitted an expert
declaration in the Havlish case, explained, “recognition of a foreign government is
a formal act that is circumscribed by form, and can generally be accomplished only
by express, unambiguous statements or a narrow subset of diplomatic actions.”
Havlish App’x at 661 (emphasis added). These actions include “concluding a
bilateral treaty or . . . sending or receiving diplomatic agents,” neither of which is
at issue here. Id. at 666 (internal quotation marks omitted); see also Restatement
(Third) of Foreign Relations Law § 204 rptr. n.2 (“Recognition of a state has been
effected by express official declaration, by the conclusion of a bilateral agreement
with the state, by the presentation of credentials by a United States representative
to the authorities of the new state, and by receiving the credentials of a diplomatic
representative of that state.”). In other words, a court’s legal conclusion as to
whether an entity falls within the coverage of the FSIA does not constitute an act
of recognition and thus does not infringe on the exclusive powers of the

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Executive.1 Accordingly, it seems clear to me that Zivotofsky has not abrogated the
rule we set forth in Klinghoffer, which thus remains binding authority. See Peguero,
34 F.4th at 158.
Third, the majority contends that the Restatement (Third) of Foreign
Relations Law, which was the basis for Klinghoffer’s definition of a foreign state,
establishes “a two-step test for determining whether a foreign state legally exists
for purposes of” the FSIA. Maj. Op. at 28 n.69 (citing Restatement (Third) of
Foreign Relations Law § 204 cmt. a). That is simply not correct. For starters,
Klinghoffer never cited section 204 of the Restatement, so the majority’s reliance on
it is misplaced. But more importantly, nothing in section 204’s general
observations about the President’s recognition authority explains how courts
should interpret the statutory text of the FSIA. In fact, the Restatement (Fourth) of
Foreign Relations Law makes clear that “the views of the executive branch should
not control the question of whether, under the FSIA, a foreign state . . . is entitled
to immunity.” Restatement (Fourth) of Foreign Relations Law § 452 rptr. n.1.
1 The majority hangs onto a single statement in Zivotofsky that “[l]egal consequences follow formal
recognition” because “[r]ecognized sovereigns . . . may benefit from sovereign immunity when
they are sued.” 576 U.S. at 11. Besides the fact that this statement is dicta, it is clear that the Court
was referring to the common-law immunity that foreign states enjoyed prior to the enactment of
the FSIA. See id. (citing National City Bank of New York v. Republic of China, 348 U.S. 356, 358–59
(1955), which predated enactment of the FSIA).

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For all these reasons, I am convinced that when interpreting and applying
the FSIA, we remain bound by the definition of foreign state that we set forth in
Klinghoffer, and that Afghanistan clearly fails to meet that definition. As a result, I
would (1) hold that the DAB funds are not entitled to immunity under the FSIA,
(2) vacate the rulings of the district courts, and (3) remand this case for the district
courts to apply New York attachment and execution law to determine whether
Plaintiffs can use the DAB funds to satisfy their judgments against the Taliban.
III. DAB Is Not an Agency or Instrumentality of a Foreign State
But even if the majority is correct that we are bound by the Executive
Branch’s recognition decision and that the notional state of Afghanistan
constitutes a foreign state, the DAB funds are still not entitled to immunity under
the FSIA. That is because, in my view, DAB no longer constitutes an agency or
instrumentality of a foreign state.
To qualify as an agency or instrumentality of a foreign state under the FSIA,
the entity must, among other things, be “an organ of a foreign state or political
subdivision thereof, or a majority of [its] shares or other ownership interest [must
be] owned by a foreign state or political subdivision thereof.” 28 U.S.C.
§ 1603(b)(2). To determine whether an entity constitutes an organ of a foreign
state, we look to five factors:

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15
(1) whether the foreign state created the entity for a national purpose;
(2) whether the foreign state actively supervises the entity; (3)
whether the foreign state requires the hiring of public employees and
pays their salaries; (4) whether the entity holds exclusive rights to
some right in the [foreign] country; and (5) how the entity is treated
under foreign state law.
Filler v. Hanvit Bank, 378 F.3d 213, 217 (2d Cir. 2004) (internal quotation marks
omitted).
As the Aliganga Plaintiffs amply demonstrated before the district court, DAB
is no longer supervised by the state of Afghanistan but rather by the Taliban.
Indeed, the Taliban now controls the hiring of DAB employees, “purging prior
leadership and technocrats and installing its own unqualified loyalists,” including
designated terrorists, at the highest levels of DAB’s leadership structure. Aliganga
App’x at 407. “[A]ny remaining DAB personnel who are not directly affiliated
with the Taliban are . . . subject to intimidation and subjugation, preventing them
from acting independently.” Id. at 443. The Taliban has also prohibited women
from working at DAB, mandated that employees grow beards and pray five times
per day, and required that the Taliban flag be flown at DAB meetings. On this
record, it cannot credibly be disputed that the notional state of Afghanistan no
longer “actively supervises” DAB, and thus DAB cannot be considered an organ
of Afghanistan. Filler, 378 F.3d at 217 (internal quotation marks omitted).

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The majority sidesteps this analysis entirely and concludes that DAB is still
an agency or instrumentality of a foreign state because “a majority of [its] shares
or other ownership interest is owned by” the state of Afghanistan. 28 U.S.C.
§ 1603(b)(2). Even though this theory was never raised by the parties or
considered by the district court, the majority hangs its hat on a clause in the
Afghanistan Bank Law, which states that “[t]he capital of [DAB] shall belong to
the State, and shall not [be] subject to lien or to encumbrance.” Afghanistan Bank
Law, art. 27.2 (Dec. 17, 2003), https://perma.cc/NM8N-3U9P. But this single
sentence cannot carry the heavy weight the majority places on it. For starters, the
Afghanistan Bank Law was passed in December 2003 and thus was not necessarily
in force and effect “at the time the writ of attachment [was] issued” in 2022 or
confirmation of attachment was sought in 2023. Aurelius Cap. Partners, 584 F.3d at
130 (emphasis omitted). Indeed, the Aliganga Plaintiffs documented that, at the
time of attachment, DAB was openly flouting the Bank Law, including provisions
related to the appointment of DAB’s governor and first deputy governor, and that
the Taliban had “established a committee” to replace the Bank Law with
“traditional Islamic banking.” Aliganga App’x at 413. What’s more, it is not clear
that ownership of DAB’s capital is the same as the ownership of DAB itself, which

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17
is what section 1603 requires for an entity to be considered an agency or
instrumentality of a foreign state. In fact, the Aliganga Plaintiffs argue that DAB
“does not have or issue ownership shares.” Aliganga Br. at 55.
With nothing in the record to suggest that DAB’s “shares . . . [are] owned by
a foreign state,” 28 U.S.C. § 1603(b)(2), the majority reaches outside the record to
locate a doctoral dissertation that asserts, without any citation or support, that
DAB has “100% state ownership,” Maj. Op. at 36 & n.95 (citing Jan Weidner, The
Organisation and Structure of Central Banks 192 (Apr. 20, 2007) (Dr. rer. pol.
dissertation, Technische Universität Darmstadt), https://perma.cc/P5TN-UZBY).
But this cherrypicked statement is simply not sufficient, in my view, to establish
that DAB remains an agency or instrumentality of the notional state of
Afghanistan.
IV. The DAB Funds Were Not Being Used for Central Banking Functions
Upon finding that DAB is an agency or instrumentality of Afghanistan, the
majority concludes that the DAB funds are entitled to immunity under FSIA
section 1609 and ends its analysis there. But the Aliganga district court focused on
FSIA section 1611, which provides that “the property of a foreign state shall be
immune from attachment and from execution, if . . . the property is that of a foreign
central bank or monetary authority held for its own account.” 28 U.S.C. § 1611(b).

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While it is true that “funds . . . held in an account in the name of a central bank or
monetary authority . . . are presumed to be immune from attachment under
[section] 1611(b)(1),” a plaintiff “can rebut that presumption by demonstrating
with specificity that the funds are not being used for central banking functions as
such functions are normally understood.” NML Cap., Ltd. v. Banco Cent. de la
Republica Argentina, 652 F.3d 172, 194 (2d Cir. 2011). Our decision in NML Capital
did not offer a list of those central banking functions, but we relied extensively on
a law-review article that provided such a list. These functions include the:
(1) issu[ance] of notes, coin, and legal tender, (2) custody and
administration of the nation’s monetary reserves through the holding
of gold, silver, domestic and foreign securities, foreign exchange,
acceptances and other credit instruments, and IMF Special Drawing
Rights, (3) establishment and maintenance of reserves of depository
institutions, (4) discounts and advances to depository institutions, (5)
receipt of deposits from the government, international organizations,
depository institutions, and in special cases, private persons, (6) open
market operations, (7) credit controls, and (8) licensing, supervision,
and inspection of banks.
Ernest T. Patrikis, Foreign Central Bank Property: Immunity from Attachment in the
United States, 1982 U. Ill. L. Rev. 265, 274; see also Central Bank, Black’s Law Dictionary
(12th ed. 2024) (“A central bank normally issues currency, functions as the
government’s bank, regulates the credit system, provides oversight for

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commercial banks, manages exchange reserves, and implements monetary
policy.”).
As the Aliganga plaintiffs demonstrated through their expert affidavits, DAB
no longer functioned as a central bank at the time of attachment in April 2022. For
example, DAB was no longer able to print afghanis; DAB curtailed its auctions of
U.S. dollars, which had been used to support the value of the afghani; and foreign
currency and aid arriving in Afghanistan were routed through private banks and
informal transfer systems rather than DAB. See Aliganga App’x at 414, 416. For
these reasons, one expert reasonably concluded that DAB “cannot execute central
bank functions.” Id. at 419. That being the case, DAB’s assets are not entitled to
immunity under FSIA section 1611.
V. Even If It Could Be Argued That the FSIA Applies Here, TRIA Abrogates
the Immunity of an Entity That Is an “Agency or Instrumentality of a
Terrorist Party” at the Time of the Turnover Order
Because the majority concludes that the DAB funds are immune under the
FSIA from attachment and execution, the majority must still contend with whether
TRIA abrogates that immunity for the Havlish appeal. TRIA states that
“[n]othwithstanding any other provision of law, . . . the blocked assets of [a]
terrorist party (including the blocked assets of any agency or instrumentality of
that terrorist party) shall be subject to execution or attachment in aid of execution

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in order to satisfy [a] judgment” against that party. TRIA § 201(a). I agree with
the majority that TRIA abrogates both jurisdictional and execution immunity and
independently provides a grant of subject-matter jurisdiction over post-judgment
execution and attachment proceedings. See Maj. Op. at 38–45. The majority
nevertheless neuters that conclusion by insisting that an entity’s status as an
agency or instrumentality of a terrorist party under TRIA must “be assessed as of
the date that the assets at issue were blocked,” id. at 55 – an issue that was never
considered by the district court, briefed by the parties, or discussed at oral
argument.
In Kirschenbaum, we previously suggested that an entity’s agency or
instrumentality status under TRIA should be assessed as of the date the complaint
was filed. See 830 F.3d at 136. I agree with the majority that Kirschenbaum’s bright-
line rule has been “unseated” by our subsequent caselaw, Maj. Op. at 49, which
has made clear that developments subsequent to the filing of a complaint may
affect whether an entity is entitled to immunity, see Barlett v. Baasiri, 81 F.4th 28,
33–37 (2d Cir. 2023); Schansman v. Sberbank of Russ. PJSC, 128 F.4th 70, 79–80 (2d
Cir. 2025). But I disagree with the majority’s holding that an entity’s status as an

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agency or instrumentality of a terrorist party must “be assessed as of the date that
the assets at issue were blocked.” Maj. Op. at 55.
For starters, this reading imposes an extratextual limitation on plaintiffs’
ability to enforce judgments against terrorist parties. Nowhere does the plain text
of TRIA confine its applicability to assets that belonged to the terrorist party (or its
agency or instrumentality) at the time those assets were blocked. In other words,
the unambiguous language of the statute makes clear that as long as (1) the assets
are blocked and (2) they belong to a terrorist party (or its agency or
instrumentality), those assets can be used to satisfy a judgment against the terrorist
party.
To hold otherwise runs contrary to the statute’s purpose, which “is to deal
comprehensively with the problem of enforcement of judgments issued to victims
of terrorism in any U.S. court by enabling them to satisfy such judgments from the
frozen assets of terrorist parties.” Weinstein v. Islamic Republic of Iran, 609 F.3d 43,
50 (2d Cir. 2010) (internal quotation marks omitted). Indeed, we have recognized
that “TRIA establishes once and for all, that such judgments are to be enforced
against any assets available in the [United States].” Id. (emphasis added) (internal
quotation marks omitted). And yet, under the majority’s interpretation, if a

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terrorist party were to gain control over an entity whose assets were already
blocked, those assets could not be used to satisfy a judgment against the terrorist
party. In addition to defying logic, such an approach would defeat TRIA’s
objective of making “any assets available” to the victims of terrorism. Id. (internal
quotation marks omitted).
The better approach, in my view, is to assess whether an entity is an agency
or instrumentality of a terrorist party at the time of the turnover order. This would
accord with the approach we have taken to determining attachment and execution
immunity under the FSIA, which looks to conditions at the time of attachment or
execution. See Aurelius Cap. Partners, 584 F.3d at 130. It would also avoid reading
extratextual limitations into TRIA and would maximize the assets available to
victims of terrorism to enforce judgments against terrorist parties, which was the
clear purpose of the statute.
In response, the majority argues that we should look to conditions at the
time the assets were blocked because “[i]f an entity becomes an agency or
instrumentality of a terrorist party after that entity’s property is blocked, those
blocked assets cannot have been utilized to further the mission of the terrorist
party.” Maj. Op. at 51. But the majority cites no authority – nor am I aware of any

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– to suggest that Congress intended to limit TRIA’s reach to assets that were
“utilized to further the mission of the terrorist party.” Id. Rather, as noted above,
TRIA simply functions to ensure that the maximum assets are available to victims
of terrorism.
The majority also make the semantic argument that “blocked assets are not
‘of’ a terrorist party if those assets did not belong to either the terrorist party, or an
entity then operating as an agency or instrumentality of the terrorist party, as of
the date that the assets were blocked.” Id. at 52. But once again, the plain text of
TRIA contains no such limitation, and it strains credulity to suggest that Congress
intended to create roadblocks preventing victims of terrorism from accessing the
assets of terrorist organizations.
For all these reasons, I would hold that an entity’s status as an agency or
instrumentality of a terrorist party for purposes of TRIA should be determined as
of the date of the turnover order. Applying that test here, I would easily conclude
that DAB was an agency or instrumentality of the Taliban when the district court
issued its decision on the turnover motion in March 2023. At a minimum, as
outlined above, DAB was “controlled[] or directed by” the Taliban as of that date.
Kirschenbaum, 830 F.3d at 135. As the majority acknowledges, see Maj. Op. at 47,

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that is sufficient to be considered an agency or instrumentality of a terrorist party
under our caselaw.
* * *
To sum up, I concur with the majority’s holding that a district court may,
but is not required to, sua sponte consider the issue of attachment (or execution)
immunity even when the sovereign status of the assets at issue is disputed. But I
disagree with the majority’s novel conclusion that “[t]he Executive Branch’s
formal recognition of a state or government establishes that state or government
as a foreign state for purposes of the [FSIA].” Id. at 54. That holding effectively
overrules three decades of our precedents and ignores longstanding caselaw from
the Supreme Court that makes clear the interpretation of the FSIA is purely a task
for the judiciary. I would instead apply the test we set forth in Klinghoffer, conclude
that Afghanistan no longer constitutes a foreign state for purposes of the FSIA, and
thus hold that the DAB funds are not entitled to immunity from attachment or
execution. I also disagree with the majority’s holding that an entity’s status as an
agency or instrumentality of a terrorist party under TRIA must “be assessed as of
the date that the assets at issue were blocked,” id. at 55, as opposed to the date of
the turnover order.

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Accordingly, I would vacate the judgments below and remand for the
district courts to apply New York attachment and execution law to determine
whether Plaintiffs can use the DAB funds to satisfy their judgments against the
Taliban.
For all the above reasons, I respectfully dissent.

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