United States Court of Appeals

Fifth Circuit

FILED

July 18, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-11282

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, ETC; ET AL.,

Defendants,

DAVID J. STRACHMAN, in his capacity as administrator of the

Estate of Yaron Ungar; DVIR UNGAR; YISHAI UNGAR; JUDITH UNGAR;

MEIR UNGAR; MICHAL COHEN; AMICHAI UNGAR; DAFNA UNGAR,

Appellants.

On Appeal from the United States District Court

For the Northern District of Texas

Before JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, WIENER,

BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT,

PRADO, and OWEN, Circuit Judges.

BENAVIDES and STEWART, Circuit Judges:

We took this case en banc to reevaluate the panel’s treatment

of United States v. Thier, 801 F.2d 1463 (5th Cir. 1986). Relying

on Thier, which held that the notice and hearing requirements of

FED. R. CIV. P. 65 applied to restraining orders issued under the

criminal forfeiture statute, a panel of this Court vacated the
1According to the indictment against the Holy Land Foundation,

“[t]he Harakat al-Muqawamah al-Islamiyya is Arabic for ‘The Islamic

Resistance Movement’ and is known by the acronym HAMAS. HAMAS,

which is sometimes referred to by its followers as ‘The Movement,’

is a terrorist organization based in the West Bank and Gaza Strip.”

218 U.S.C. § 2333 provides a cause of action for American

nationals injured in their person, property, or business by reason

of an act of international terrorism. 

2

district court’s restraining order for noncompliance with Rule 65.

United States v. Holy Land Found. for Relief and Dev., 445 F.3d 771

(5th Cir. 2006), vacated for reh’g en banc (2006). For the reasons

that follow, we conclude that Thier was wrongly decided, and is now

overruled. We further conclude that, having overruled Thier, we

have no authority to consider the Ungars’ additional arguments. If

the Ungars wish to challenge the ruling of the district court

below, they must first do so in that court, either in a hearing

under 21 U.S.C. § 853, or through some other procedural mechanism.

I. FACTS AND PROCEDURAL HISTORY

Appellant David Strachman represents the estates of husband

and wife, Yaron and Efrat Ungar, who were killed during a terrorist

attack. In February 2004, Strachman, along with members of the

Ungar family and their representatives (“the Ungars”), obtained a

$116,409,123 default judgment against Hamas1 in Rhode Island’s

federal district court pursuant to the civil provisions of the

Antiterrorism Act of 1991, 18 U.S.C. § 2333.2 See Estates of Ungar

ex rel. Strachman v. Palestinian Auth., 304 F. Supp. 2d 232, 238,

242 (D.R.I. 2004). That district court determined that its
3Without reciting the entire history of HLF, we note that

there is strong evidence that HLF works as a fundraiser for Hamas.

On December 4, 2001, the Treasury Department determined that HLF

acted “for or on behalf of” Hamas and was thus a Specially

Designated Terrorist under Executive Order 12947 and a Specially

Designated Global Terrorist under Executive Order 13224. See

Estates of Ungar ex rel. Strachman, 304 F. Supp. 2d at 241. 

3

judgment was enforceable against the assets of the Holy Land

Foundation for Relief and Development (“HLF”).3 Id. at 241. Based

on this judgment, federal district courts in New York, South

Carolina, and Washington issued writs of execution against HLF that

the Ungars allege were levied in the respective jurisdictions on or

before September 13, 2004. 

Meanwhile, on July 26, 2004, the United States filed a fortytwo count indictment against HLF in federal district court for the

Northern District of Texas. The indictment charged HLF with

material support of a terrorist organization, tax evasion, and

money laundering, and the Government sought forfeiture of HLF

property. In order to preserve HLF’s assets in the event of a

conviction, the Government sought a restraining order from the

district court on September 24, 2004. The district court issued

that order ex parte with the authority given it in the criminal

forfeiture statute, 21 U.S.C. § 853(e)(1)(A). That order

indefinitely froze the assets of HLF and its financial agents,

including the bank accounts in New York, South Carolina and

Washington. 

The Ungars were suddenly unable to obtain the funds upon which
4

they levied, and which they believed belonged to them. They

appealed the restraining order to this Court, alleging, among other

things, that it was entered without providing them adequate notice

or a fair opportunity to be heard. On April 4, 2006, a panel of

this Court agreed with them. After deciding several jurisdictional

and statutory questions, the panel concluded that it was

constrained by our precedent in United States v. Thier, 801 F.2d

1463 (5th Cir. 1986), to apply the notice provisions of Federal

Rule of Civil Procedure 65 to the ex parte restraining order.

Therefore, the panel vacated the restraining order for

noncompliance with Rule 65 and remanded the case to district court

for any further proceedings. 445 F.3d at 793. In doing so, the

panel repeatedly explained that it was bound to follow Thier until

such time as it was overruled either by the Supreme Court or by our

Court sitting en banc. That time has come. 

II. STANDARD OF REVIEW

Ordinarily we review a district court’s order of injunction

for abuse of discretion, but where, as here, the district court’s

decision turns on the application of statutes or procedural rules,

our review of that interpretation is de novo. Cf. Castillo v.

Cameron County, Tex., 238 F.3d 339, 347 (5th Cir. 2001) (“Although

the district court’s decision to continue the injunctions is to be

reviewed for an abuse of discretion, . . . because the district

court’s decision . . . turns on the application of § 3626(b) of the
4We note that the Government did not advance this argument in

any detail before the panel. By the time the case reached the en

banc Court, however, the Government had taken up this position as

its primary ground for relief. At oral argument, counsel for the

Government explained that the shift was the result of “further

5

[Prison Litigation Reform Act], that interpretation is reviewed de

novo.”) (citations omitted).

III. DISCUSSION

We begin our inquiry with the question of the Ungars’ standing

to appeal the restraining order to this Court. Unlike the panel,

however, our primary concern here is not with the three

constitutional requirements of standing, per se. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (identifying

three requirements that constitute “irreducible constitutional

minimum” of standing: “injury in fact,” causation, and

redressability). The panel opinion properly dealt with the

question of the Ungars’ personal stake in the outcome of this

controversy, and we have no reason to revisit that inquiry. 445

F.3d at 779–81. Indeed, even the Government does not now challenge

the legitimacy of the Ungars’ interest in this case. Rather, its

more specific argument, and our primary concern, is whether the

Ungars are barred by statute from bringing their arguments to this

Court at this time. 

The Government argues that the Ungars must pursue their

interest in HLF’s property in accordance with the scheme set out in

the federal criminal forfeiture statute, 21 U.S.C. § 853.4 If this
deliberation within the Department since the panel’s opinion was

issued.” Whatever the reason for the change, we now have the

benefit of full briefing on this issue and can give it its due

consideration at this time. To be sure, though the argument was

not made forcefully, it is nonetheless preserved for our review.

6

is true, then the Ungars likely would have to wait until HLF’s

criminal trial is over and, if HLF is convicted, assert their

interest in a post-trial hearing in the district court. See 21

U.S.C. § 853(n) (detailing post-trial hearing). At that hearing,

the district judge would assess the primacy of their interest

relative to that of the Government and any other third-party

claimants, and distribute the property accordingly. The Government

urges, therefore, that this appeal is an attempt to circumvent that

statutory scheme and must be dismissed. 

The Ungars respond in two ways. First, they assert that they

are, in their words, the “victims” of a restraining order that was

issued without notice or a hearing, and therefore our holding in

Thier, which extended Rule 65's protections to parties “adverse” to

a criminal restraining order, allows them to appeal that order to

this Court. Second, they argue that they need not wait for a posttrial hearing because § 201(a) of the Terrorism Risk Insurance Act

of 2002 (“TRIA”), Pub. L. No. 107-297, 116 Stat. 2322, 2337, trumps

the criminal forfeiture statute. We consider these arguments in

turn.

A. The Ungars’ right to notice under Thier

The Ungars argue that they have a right to appeal the district
7

court’s restraining order to this Court, rather than resort to the

§ 853 hearing, because we gave them that right in United States v.

Thier, 801 F.2d 1463 (5th Cir. 1986). Thier presented the case of

a post-indictment restraining order, issued by a district court

pursuant to 21 U.S.C. § 853(e)(1)(A), which prevented a criminal

defendant from disposing of his assets pending the outcome of his

trial. Id. at 1465–66. The Government had requested the order and

put forth sufficient evidence to convince the district judge that

Thier “might frustrate justice and endanger the government’s

interest in these properties by placing them beyond the

jurisdiction of the court.” Id. at 1466. Importantly, the court

issued the order ex parte and ruled that it was to stay in effect

until further ordered by the court. Thier was served with a copy

of the order the next day. At his request, the court later held a

hearing to consider modifying the order, but declined to do so.

Thier then appealed to this Court, alleging, inter alia, that the

district court’s restraint of his assets without an adversary

hearing violated his due process rights under the Fifth Amendment.

A panel of this Court held that post-indictment restraining

orders and injunctions issued pursuant to 21 U.S.C. § 853(e)(1)(A)

would not offend due process so long as the requirements of Federal

Rule of Civil Procedure 65 were satisfied. Id. at 1468. Rule 65

provides certain procedural safeguards to the “adverse party” when

a district court issues an injunction or restraining order. In the
5Notably, Rule 65, as a rule of civil procedure, does not

speak in terms of criminal defendants, but rather uses the more

generic term, “adverse parties.” To be sure, the Ungars, unlike

Thier, are not defendants in the case below, and the restraining

order on HLF’s assets does not mention the Ungars at all. However,

the Ungars argue that the order was nonetheless directed at them

because they were in the process of executing their judgment

against HLF’s assets. The panel agreed and adjudged the Ungars to

be an “adverse party” for purposes of Rule 65, which triggered the

panel’s compliance with Thier. 445 F.3d at 792. However, that

question is now moot in light of our decision to overrule Thier,

and we need not consider it at this time.

8

case of an ex parte restraining order, it states that such order is

only effective for ten days unless the court chooses to extend it

for one additional ten-day period for good cause, or the party

against whom the order is directed consents to an extension. FED.

R. CIV. P. 65(b); Thier, 801 F.2d at 1469. The ex parte restraining

order in Thier exceeded these hearing and duration limits, and so

the panel remanded the case with directions to conduct a hearing on

reasonable notice and in accordance with the other strictures of

Rule 65. Thus, Thier stands for the proposition that Rule 65

protects “adverse parties”5 whenever an injunction or restraining

order is issued pursuant to the criminal forfeiture statute, 21

U.S.C. § 853(e)(1)(A).

The Ungars argue that they are similarly situated to Thier,

that they are an “adverse party” as that term is used in Rule 65,

and that they were not given adequate notice or a hearing in the

district court. Accordingly, they maintain that they, like Thier,

have the right to appeal that order to this Court. The panel
6We recently examined this tension in greater detail in United

States v. Melrose East Subdivision, 357 F.3d 493, 504–05 (5th Cir.

2004), but we briefly recount that observation here. In addition

to requiring an indictment based on probable cause, Thier demanded

that the Government satisfy the traditional four-part test for a

preliminary injunction, one part of which is to demonstrate a

substantial likelihood of success on the merits, in order to carry

its burden at a § 853(e)(1)(A) hearing. See Thier, 801 F.2d at

1470. This undoubtedly imposes a higher burden than probable

cause, but Monsanto makes plain that probable cause alone is

sufficient to satisfy due process. 491 U.S. at 615 (“We conclude

. . . that assets in a defendant’s possession may be restrained in

the way they were here based on a finding of probable cause to

believe that the assets are forfeitable.”). See generally Melrose

East Subdivision, 357 F.3d at 504–05 & n.12 (discussing cases in

greater detail). 

9

considered this argument at great length and concluded that it was

“constrained by Thier and its progeny” to dissolve the restraining

order. 445 F.3d at 789–93. We are not so constrained. We decide,

here and now, that Thier is no longer the law of this Circuit. 

There are several reasons why we have chosen to overrule

Thier. First, shortly after the case was decided, it was called

into doubt by the Supreme Court in United States v. Monsanto, 491

U.S. 600 (1989). In fact, that opinion overruled Thier insofar as

Thier applied a higher burden on the Government than the probable

cause standard to justify pretrial restraint of forfeitable assets.

Id. at 615.

6 It is true that the Court specifically declined to

decide whether due process might require a hearing before a

pretrial restraining order could be imposed, id. at 615 n.10, but

the opinion nevertheless speaks in strong terms about the primacy

we ought to give to the language of § 853. It states that “the
7We first catalogued the different approaches of other

circuits in Melrose East Subdivision. See 357 F.3d at 499–500

(summarizing cases). 

10

language of § 853 is plain and unambiguous: all assets falling

within its scope are to be forfeited upon conviction,” and that

“Congress could not have chosen stronger words to express its

intent that forfeiture be mandatory in cases where the statute

applied, or broader words to define the scope of what was to be

forfeited.” Id. at 606–07. This language strongly suggests that

we need not read into § 853 the protections of a wholly separate

rule of civil procedure in order to satisfy the requirements of due

process. The apparent incongruity of the opinions recently

prompted us to observe that “[s]ome aspects of Thier appear to be

in tension with Monsanto, and future cases may need to consider

whether certain portions of Thier were overruled.” Melrose East

Subdivision, 357 F.3d at 504. 

In addition to the spirit of Monsanto, however, we are

overruling Thier because it is out of step with the reasoning of

several of our sister circuits.7 Most circuits that have spoken to

the issue do not resort to Rule 65's guarantee of a hearing to

satisfy due process, but they also do not hold that a hearing is

never required. Rather, they rely on the time-honored test of

Mathews v. Eldridge, 424 U.S. 319 (1976), to determine when a

hearing is required. See, e.g., United States v. Jones, 160 F.3d
11

641, 645–48 (10th Cir. 1998); United States v. Monsanto, 924 F.2d

1186, 1193–98 (2d Cir. 1991) (on remand from 491 U.S. 600 (1989));

United States v. Moya-Gomez, 860 F.2d 706, 729–30 (7th Cir. 1988);

United States v. Harvey, 814 F.2d 905, 928–29 (4th Cir. 1987),

superceded as to other issues, In re Forfeiture Hearing As to

Caplin & Drysdale, Chartered, 837 F.2d 637 (4th Cir. 1988) (en

banc), aff’d, 491 U.S. 617 (1989). Under this method, which we

adopt, when the Government is seeking forfeiture and secures an

indictment to that effect based on probable cause, a court may

issue a restraining order without prior notice or a hearing. In

some cases, however, due process will require that the district

court then promptly hold a hearing at which the property owner can

contest the restraining order, without waiting until trial to do

so. To determine when such a hearing is required, we consider the

three Eldridge factors: the private interest that will be affected

by the restraint; the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if

any, of additional or substitute procedural safeguards; and

finally, the Government’s interest, including the burdens that the

hearing would entail. 424 U.S. at 335. As we observed in Melrose

East Subdivision, circuits employing this test have found that a

property owner’s interest is particularly great when he or she

needs the restrained assets to pay for legal defense on associated

criminal charges, or to cover ordinary and reasonable living
12

expenses. See Melrose East Subdivision, 357 F.3d at 499–500

(collecting cases). 

We note that the Ninth Circuit still adheres to the view

expressed in Thier, that the protections of Rule 65 apply to all

injunctions and restraining orders under § 853(e)(1)(A). See

United States v. Roth, 912 F.2d 1131 (9th Cir. 1990). On the other

end of the spectrum, the Eleventh Circuit maintains that no

pretrial hearing is ever required, even when the restrained assets

are needed to pay counsel. See United States v. Register, 182 F.3d

820, 835 (11th Cir. 1999) (“We appear to be the only circuit

holding that, although pre-trial restraint of assets needed to

retain counsel implicates the Due Process Clause, the trial itself

satisfies this requirement.” (citing United States v. Bissell, 866

F.2d 1343, 1352–54 (11th Cir. 1989))). With due respect to both of

those circuits, we believe the rule we adopt strikes an appropriate

balance between those views. It will spare the Government from

frivolous challenges that might impede its ongoing criminal

investigations, but does so without jeopardizing the rights of

property owners to access their assets in a timely fashion when

necessary.

Returning now to the Ungars, we find that their claim is

substantially affected by our decision to overturn Thier. It was

Thier that incorporated Federal Rule of Civil Procedure 65, with

its procedural safeguards for “adverse parties.” That language, in
8“When dealing with a preliminary injunction, the ‘adverse

party’ means the party adversely affected by the injunction, not

the opponent in the underlying action.” Parker v. Ryan, 960 F.2d

543, 545 (5th Cir. 1992). 

9In custodia legis means “[i]n the custody or keeping of the

law . . . .” BLACK’S LAW DICTIONARY 768 (6th ed. 1990); see also In

re Chesnut, 422 F.3d 298, 301 (5th Cir. 2005) (explaining that in

custodia legis means “literally, ‘in the custody of the law’;

loosely, ‘in the care of the court’”). 

13

turn, allowed the Ungars to bring their due process claim to this

Court, for even though they were not parties to the underlying

criminal action, the panel did consider them to be “adverse

parties” for purposes of Rule 65.8 445 F.3d at 792. Under the

rule we announce today, however, there is no need to consider Rule

65, and there are no such protections for “adverse parties.”

Instead, if the Ungars wish to challenge the district court’s

order, they must be able to satisfy the Eldridge factors. We turn

now to the question of whether they can do so. 

B. The Ungars’ interest in the forfeitable assets

The Ungars argued before the panel that the district court in

Texas had no jurisdiction to restrain the bank accounts in question

because other courts in New York, South Carolina and Washington had

already levied writs of execution against those accounts, rendering

them in custodia legis.

9 The panel considered this argument at

great length, examined the status of each account individually, and

concluded:

Our review of the record reveals that none of the levies

was perfected so as to transfer possession or control of
10While the first of the Eldridge factors largely disposes of

the issue in this case, we note for the sake of completeness that

the other two factors also favor the Government. The risk of an

erroneous deprivation of the Ungars’ interest is minimal in light

of the safeguards afforded to the Ungars by 21 U.S.C. § 853. See

infra Part III.C. As for the Government’s interest, we have

already referenced the Supreme Court’s view that “Congress could

not have chosen stronger words” to express its view that forfeiture

should be both mandatory and broad in scope. Monsanto, 491 U.S. at

606–07. From this we draw the related conclusion that it would be

a significant burden on the Government to have to defend the

forfeiture order from attack by a third party during the course of

an ongoing criminal prosecution. While future cases may present a

different balance of interests, we find that the Eldridge factors

do not support the Ungars’ request for a hearing at this time. See

Mathews v. Eldridge, 424 U.S. at 335.

14

HLF’s interest in the bank accounts to the respective

federal district courts or to the Ungars in such a manner

that the Ungars may now challenge the Texas district

court’s jurisdiction to enter the restraining order.

445 F.3d at 783 (emphasis added). This reasoning was sound, and it

bears directly on the question of the Ungars’ property interest in

the accounts. Therefore, before going forward, we note that the

entire portion of the panel opinion explaining that jurisdiction

was not defeated on this basis, specifically Part III.D, is hereby

REINSTATED. 445 F.3d at 782–85. 

Having accepted the panel’s conclusion that the Ungars had no

perfected property interest in the subject accounts, we find that

the private interest affected by the restraint in this case is

minimal at best.10 Accordingly, they do not have any right under

Eldridge to request a hearing at this time, nor do they have any

right to appeal the district court’s restraining order to this

Court. They are simply judgment creditors, and while they may have
11The Ungars concede that they could follow the procedure set

forth in § 853, but add that they need not do so because TRIA gives

them an independent remedy. We consider this argument in greater

detail in Part III.D, infra.

15

a viable third-party claim on the assets of HLF, there is currently

no legal basis for them to appeal a restraining order on those

assets. In fact, the relevant law is to be found in the criminal

forfeiture statute itself, which lays out a detailed scheme by

which third-party claimants like the Ungars can assert their

interest in the restrained assets. 

C. Third-party claims under 21 U.S.C. § 853

The criminal forfeiture statute is designed to balance the

Government’s interest in efficient and orderly prosecution with the

rights of defendants and third parties who claim an interest in

forfeitable property. Two key provisions of the statute make clear

that the Ungars may not intercede in the pending HLF prosecution at

this time, at least not in the fashion in which they have done so.11

Section 853(k) reads:

Except as provided in subsection (n) of this section, no

party claiming an interest in property subject to

forfeiture under this section may—

(1) intervene in a trial or appeal of a criminal

case involving the forfeiture of such property under this

section; or

(2) commence an action at law or equity against the

United States concerning the validity of his alleged

interest in the property subsequent to the filing of an

indictment or information alleging that the property is

subject to forfeiture under this section.

This bar on intervention makes an exception for the process set out

in section (n). That section, in turn, makes plain that the Ungars
12It goes without saying that if the Government fails to

convict HLF, then the Ungars are in the same position they were

before the criminal case arose. They are still judgment creditors,

and they may continue to execute that judgment against HLF’s assets

in the relevant jurisdictions. 

16

will have a chance to assert their interest in the subject

property, but only after the termination of the pending criminal

case. In the event of a conviction, the court will enter an order

of forfeiture, which will transfer Holy Land’s assets to the

Government of the United States. Then: 

(1) Following the entry of an order of forfeiture under

this section, the United States shall publish notice of

the order and of its intent to dispose of the property in

such manner as the Attorney General may direct. The

Government may also, to the extent practicable, provide

direct written notice to any person known to have alleged

an interest in the property that is the subject of the

order of forfeiture as a substitute for published notice

as to those persons so notified. 

(2) Any person, other than the defendant, asserting a

legal interest in property which has been ordered

forfeited to the United States pursuant to this section

may, within thirty days of the final publication of

notice or his receipt of notice under paragraph (1),

whichever is earlier, petition the court for a hearing to

adjudicate the validity of his alleged interest in the

property. The hearing shall be held before the court

alone, without a jury. 

21 U.S.C. § 853(n). 

It is plain, therefore, that if HLF is convicted12 and its

assets are forfeited to the Government, the Ungars will receive

notice of that occurrence. At that time they may petition the

court for a hearing. The statute further states that such a

hearing is to take place within thirty days of the filing of the
13We note that at least one other group of plaintiffs, the Boim

family, have secured a judgment against HLF in the same fashion as

the Ungars. Amended Final Judgment in a Civil Case, Boim v.

Quranic Literacy Inst., No. 00-C-2905 (N.D. Ill. Mar. 2, 2005).

That case is now on appeal in the Seventh Circuit, but if their

judgment is affirmed, then presumably they, too, will have an

interest to assert in a post-trial forfeiture hearing in the

district court in Texas. We suspect that potential conflicts of

this sort were one reason that Congress chose to ban third-party

intervention during the pendency of a criminal prosecution, and to

move all such claims into a post-trial hearing instead. While this

delay may impose a burden on the claimants, the countervailing

benefits to the Government, the court, and even the claimants

themselves, are obvious. 

17

petition, if practicable. 21 U.S.C. § 853(n)(4). Moreover, the

court is empowered to consolidate all petitions for such hearings

into a single proceeding, so as to adjudicate all competing claims

at once. Id. In this way, then, the hearing is similar to a

bankruptcy proceeding, at which the judge will consider the

validity and priority of each party’s alleged interest in the

property. If the district court determines that a third party, be

it the Ungars or any other claimant,13 has an interest superior to

that of the Government, it will amend the forfeiture order

accordingly. § 853(n)(6). 

We can understand the Ungars’ frustration at having to await

the completion of the Government’s case, but we are readily

satisfied that the system set out in § 853 provides them with due

process. To be sure, the Ungars will have their day in court, but

under the scheme set forth in § 853, they cannot have it today, and

they cannot have it in this Court. They must wait for the criminal
18

prosecution to conclude, and, if HLF is convicted, they must take

their arguments to that district court in the first instance. 

D. The Ungars’ Reliance on TRIA

Despite the clear language of § 853, the Ungars assert that it

does not apply to them. They argue that they need not wait for the

post-trial hearing described in § 853(n), because another statute,

TRIA § 201(a), trumps the criminal forfeiture statute. The

relevant portion of that Act provides that:

Notwithstanding any other provision of law, . . . 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. 

TRIA § 201(a) (emphasis added). The Ungars place great weight on

the “notwithstanding” clause in this statute. On the strength of

that clause, counsel for the Ungars likens TRIA to “legal

kryptonite,” and argues that it supercedes the criminal forfeiture

statute and allows the Ungars to reach the assets that are

“blocked” by the district court’s § 853 restraining order. TRIA,

he says, makes the Ungars’ claim qualitatively different from a

typical judgment creditor’s claim to forfeitable assets. On this

reading, because the court’s restraining order currently prevents

the Ungars from executing their judgment against HLF’s assets, that
19

order is in conflict with TRIA § 201(a) and must be declared void.

The Government agrees that TRIA trumps previous laws that

limit the attachment and execution of blocked assets, but maintains

that the criminal forfeiture statute is not such a law. On the

Government’s reading, § 853 does not “block” any of HLF’s assets as

that term is used in § 201(a). Rather, says the Government, the

criminal forfeiture statute sets out a system whereby the court can

distribute those funds in an appropriate manner. In short, § 853

does not say that the Ungars cannot execute their judgment; it

merely tells them when and how. Therefore, the two statutes do not

conflict with one another, but work in tandem, and the

“notwithstanding” clause should not be read to override § 853.

This is certainly an interesting legal question, but we have

no license to consider it at this time. The reason we have to

refrain is that the Ungars never presented this TRIA argument to a

district court in the first instance. They are presently on appeal

in this Court without being a party to the action below, or even

trying to make themselves a party to it. Importantly, this is not

a question of their having waived the argument, but of the

propriety of our considering arguments that have never been before

a lower court. If TRIA is the powerful tool that the Ungars say it

is, then they must invoke it in the district court first, either in

the § 853 hearing or through some other procedural channel, but we

are not authorized to consider that question until a lower court

has done so.
20

IV. CONCLUSION

For the foregoing reasons, Part III.D of the panel opinion is

REINSTATED, while all other portions remain VACATED. Having

overruled Thier, there is no authority allowing the Ungars to

appeal to this Court without first presenting their arguments to

the district court. Accordingly, the appeal is DISMISSED.