529 F.3d 1187 (D.C. Cir. 2008), 06-7175, Simon v. Republic of Iraq

Docket Nº:06-7175, 06-7178.
Citation:529 F.3d 1187
Party Name:Robert SIMON, et al., Appellants v. REPUBLIC OF IRAQ, et al., Appellees.
Case Date:June 24, 2008
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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529 F.3d 1187 (D.C. Cir. 2008)

Robert SIMON, et al., Appellants


REPUBLIC OF IRAQ, et al., Appellees.

Nos. 06-7175, 06-7178.

United States Court of Appeals, District of Columbia Circuit.

June 24, 2008

Argued Oct. 12, 2007.

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Appeals from the United States District Court for the District of Columbia (Nos.03cv00691, 03cv00888).

Michael Rips argued the cause for appellants. With him on the briefs were Stephen A. Fennell , Anthony F. Cavanaugh , Anthony A. Onorato , Justin B. Perri , and Alice Loughran.

Eric J. Hecker, Richard D. Emery, and Sarah Netburn were on the brief for amici curiae Ethel Hurst, et al. in support of appellants.

Lawrence H. Martin argued the cause for appellees. With him on the briefs were Gare A. Smith , Sarah A. Altschuller , Timothy B. Mills , and Jonathan S. Franklin.

Before SENTELLE , Chief Judge, and GINSBURG and BROWN , Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG .

GINSBURG , Circuit Judge:

The plaintiffs in these two consolidated actions sued Iraq, the Iraqi Intelligence Service, and Saddam Hussein (together, Iraq) alleging they had tortured and taken certain of them hostage during the 1990-91 Gulf War. The plaintiffs relied upon 28 U.S.C. § 1605(a)(7) , the exception in the Foreign Sovereign Immunities Act (FSIA), § 1602 et seq. , that allowed for lawsuits

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against state sponsors of terrorism. The district court dismissed the actions as untimely and the plaintiffs appealed. Iraq defends the district court's interpretation of the time limitation in the FSIA and alternatively invokes the political question doctrine.

After this appeal was briefed and argued, the Congress passed the National Defense Authorization Act for Fiscal Year 2008 (NDAA), Pub.L. No. 110-181, 122 Stat. 3, § 1083 of which revised the terrorism exception to sovereign immunity by repealing § 1605(a)(7) of Title 28 and adding a new exception to be codified at § 1605A of Title 28 . Section 1083(d) of the NDAA granted the President the authority to waive § 1083 with respect to Iraq, which he promptly did.

For the reasons that follow, we conclude the plaintiffs may maintain these suits pursuant to § 1605(a)(7) , and their cases are timely and justiciable. Accordingly, we remand these matters to the district court for further proceedings.

I. Background

In 1996 the Congress amended the FSIA to abrogate in certain respects the sovereign immunity of any foreign state the Secretary of State designates a sponsor of terrorism. Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 221, 110 Stat. 1214 , 1241-43 (codified at 28 U.S.C. § 1605(a)(7) ); see also 28 U.S.C. § 1604 (granting immunity to foreign states, their agencies, and their instrumentalities). As amended, § 1605(a)(7) provided in part that a foreign state was not immune from an action for damages “for personal injury ... caused by an act of torture ... [or] hostage taking" to a U.S. national if the foreign state had been “designated as a state sponsor of terrorism ... at the time the act occurred" and the plaintiff had given the foreign state “a reasonable opportunity to arbitrate the claim." The statute defined torture and hostage taking, see §§ 1605(e) , 1350 note, by reference to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 1(1), Dec. 10, 1984, 1465 U.N.T.S. 85, and the International Convention Against the Taking of Hostages art. 1, Dec. 17, 1979, T.I.A.S. No. 11081, 1316 U.N.T. S. 205.

The plaintiffs filed their actions in 2003 and duly invoked § 1605(a)(7) . Their amended complaints alleged that in 1990 and 1991 the defendants had tortured certain of the plaintiffs and held them hostage, in violation of local, federal, and international law; the other plaintiffs, members of the alleged victims' families, sued for intentional infliction of emotional distress. Iraq was at all relevant times a designated state sponsor of terrorism, 55 Fed.Reg. 37,793 (Sept. 13, 1990) , and the complaints alleged the plaintiffs had offered Iraq the opportunity to arbitrate the disputes.

Iraq and the Iraqi Intelligence Service filed motions to dismiss both cases on the grounds that the actions were untimely under § 1605 (f), which provides a limitation period of ten years for any action under § 1605(a)(7) ; the plaintiffs had failed to state a claim upon which relief could be granted; and the political question doctrine barred the court from proceeding. The district court held the two actions did not raise political questions but dismissed them as untimely. Vine v. Republic of Iraq, 459 F.Supp.2d 10 (2006) .

II. Analysis

On appeal, Iraq newly contends the recent enactment of the NDAA and the President's waiver of § 1083 thereof require the dismissal of these cases. Alternatively, Iraq argues the cases were untimely filed and are barred by the political

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question doctrine. Addressing the issues of law de novo, we reject each of Iraq's contentions.

A. NDAA 2008

On December 14, 2007 the Congress passed the first version of the NDAA, § 1083 of which would have amended the terrorism exception to foreign sovereign immunity by striking 28 U.S.C. § 1605(a)(7) , the exception upon which the plaintiffs relied, and enacting a new exception, to be codified at 28 U.S.C. § 1605A . President Bush sought to “pocket veto" the bill because he believed § 1083 would threaten the reconstruction of Iraq:

[S]ection 1083 would risk the freezing of substantial Iraqi assets in the United States.... Section 1083 also would expose Iraq to new liability of at least several billion dollars by undoing judgments favorable to Iraq, by foreclosing available defenses on which Iraq is relying in pending litigation, and by creating a new Federal cause of action backed by the prospect of punitive damages to support claims that may previously have been foreclosed.

Memorandum of Disapproval, 43 WEEKLY COMP. PRES. DOC.. 1641, 1641 (Dec. 28, 2007).

The Congress subsequently passed a revised version of the NDAA, which included a new provision (§ 1083(d)) that authorized the President, upon making certain findings, to “waive any provision of [§ 1083 of the NDAA] with respect to Iraq." The President signed that bill into law and promptly exercised his authority under § 1083(d)(1) to waive “all provisions of section 1083 with respect to Iraq, and all agencies and instrumentalities thereof." Presidential Determination No.2008-9, 73 Fed.Reg. 6571 (Jan. 28, 2008) .[*] Iraq contends the enactment of the NDAA and the President's waiver of § 1083 with respect to Iraq stripped the federal courts of jurisdiction over these cases; the plaintiffs disagree, of course.

Section 1083(a) of the NDAA, which amended the FSIA by creating new § 1605A of Title 28 , contains an exception to the grant of sovereign immunity similar to that in former § 1605(a)(7) but more advantageous to plaintiffs in several respects. For instance, it precludes a foreign state from filing an interlocutory appeal under the “collateral order" doctrine, § 1605A(f) , and permits a plaintiff to attach property in advance of judgment, § 1605A(g) . In addition, § 1605A(c) abrogates Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C.Cir.2004) , by creating a federal right of action against foreign states, for which punitive damages may be awarded.

Iraq argues that because § 1083(b)(1) of the NDAA repeals § 1605(a)(7) of the FSIA, upon which the present cases were founded, we must dismiss these cases for want of jurisdiction. see 28 U.S.C. §§ 1330(a) , 1604 (jurisdiction over case against foreign sovereign depends upon exception to immunity). Further, according to Iraq, the President's waiver of § 1083 of the NDAA prevents the plaintiffs from refiling their cases under the jurisdiction conferred by new § 1605A .

A statute removing federal jurisdiction presumptively applies to pending cases because such a statute “usually ‘takes away no substantive right but simply changes the tribunal that is to hear the case.’ "

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Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 2765, 165 L.Ed.2d 723 (2006) (quoting Hallowell v. Commons, 239 U.S. 506, 508, 36 S.Ct. 202, 60 L.Ed. 409 (1916) ); see also Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 951, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997) . In contrast, a statute that retroactively alters the consequences of primary conduct-as by “impair[ing] rights a party possessed when he acted, increas [ing] a party's liability for past conduct, or impos[ing] new duties with respect to transactions already completed," Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) -is presumptively non-retroactive; such a statute applies to a pending case only if the Congress clearly so provides.

The FSIA speaks to the jurisdiction of the federal courts, but it also governs the immunity of foreign states in any U.S. forum. see 28 U.S.C. § 1604 (“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" ); cf. Hughes Aircraft Co., 520 U.S. at 951, 117 S.Ct. 1871 (“statutes affect[ing] ... whether [a suit] may be brought at all ... speak[ ] not just to the power of a particular court but to the substantive rights of the parties as well" and are therefore “subject to [the] presumption against retroactivity" ). Accordingly, it is not clear which presumption might apply, if any is needed. In this case, however, it is unnecessary to invoke either presumption because § 1083 makes several references to pending cases and we need not look beyond the text and structure of the NDAA to ascertain its effect upon cases brought under § 1605(a)(7) . Accord Hamdan, 126 S.Ct. at 2762-69 (holding, based upon “[o]rdinary principles of statutory construction," the provision of the...

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