556 U.S. 848 (2009), 07-1090, Republic of Iraq v. Beaty

Docket Nº:07-1090, 08-539.
Citation:556 U.S. 848, 129 S.Ct. 2183, 173 L.Ed.2d 1193, 77 U.S.L.W. 4447
Party Name:REPUBLIC OF IRAQ, Petitioner, v. Jordan BEATY et al. Republic of Iraq, et al., Petitioners, v. Robert Simon et al.
Case Date:June 08, 2009
Court:United States Supreme Court

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556 U.S. 848 (2009)

129 S.Ct. 2183, 173 L.Ed.2d 1193, 77 U.S.L.W. 4447



Jordan BEATY et al.

Republic of Iraq, et al., Petitioners,


Robert Simon et al.

Nos. 07-1090, 08-539.

United States Supreme Court

June 8, 2009 1

Argued April 20, 2009.

[129 S.Ct. 2184] Syllabus [*]

The Foreign Sovereign Immunities Act of 1976 (FSIA) prohibits suits against other countries in American courts, 28 U.S.C. § 1604, with certain exceptions. One exception, § 1605(a)(7) (now repealed), stripped a foreign state of immunity in any suit arising from certain acts of terrorism that occurred when the state was designated as a sponsor of terrorism under § 6(j) of the Export Administration Act of 1979 or § 620A of the Foreign Assistance Act of 1961.

Iraq was designated as a sponsor of terrorism in 1990, but in 2003, following the American-led invasion of Iraq, Congress enacted the Emergency Wartime Supplemental Appropriations Act (EWSAA), § 1503 of which included a proviso clause (the second in a series of eight) authorizing the President to "make inapplicable with respect to Iraq [§ ]620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism." Although President Bush exercised that authority, the D.C. Circuit held in its 2004 Acree decision that the EWSAA did not permit the President to waive § 1605(a)(7), and thereby restore Iraq's sovereign immunity, for claims arising from actions Iraq took while designated as a sponsor of terrorism.

Thereafter, Congress repealed § 1605(a)(7) in § 1083(b)(1)(A)(iii) of the National Defense Authorization Act for Fiscal Year 2008 (NDAA) and replaced it with a new, roughly similar exception, § 1083(a). The NDAA also declared that nothing in EWSAA "ever authorized, directly or indirectly, the making inapplicable of any provision of [the FSIA] or the removal of the jurisdiction of any court" (thus purporting to ratify Acree), § 1083(c)(4); and authorized the President to waive "any provision of this section with respect to Iraq" under certain conditions, § 1083(d). On the same day the President [129 S.Ct. 2185] signed the NDAA into law he also waived all of § 1083's provisions as to Iraq.

Respondents filed these suits against Iraq in early 2003, alleging mistreatment by Iraqi officials during and after the 1991 Gulf War. Under Acree, the courts below refused to .dismiss either case on jurisdictional

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grounds. The D.C. Circuit also rejected Iraq's alternative argument that even if § 1605(a)(7)'s application to it survived the President's EWSAA waiver, the provision was repealed by NDAA § 1083(b)(1)(A)(iii); and that the President had waived NDAA § 1083(a)'s new exception with respect to Iraq under his § 1083(d) authority. The court held instead that it retained jurisdiction .over cases pending against Iraq when the NDAA was enacted.


Iraq is no longer subject to suit in federal court. Pp. 2188 - 2195.

(a) The District Court lost jurisdiction over both suits in May 2003, when the President exercised his EWSAA authority to make § 1605(a)(7) "inapplicable with respect to Iraq." Pp. 2188 - 2193.

(i) Iraq's (and the United States') reading of EWSAA § 1503's second proviso as sweeping in § 1605(a)(7)'s terrorism exception to foreign sovereign immunity is straightforward. In the proviso's terms, the exception is a "provision of law" (indisputably) that "applies to" (strips immunity from) "countries that have supported terrorism" (as designated pursuant to certain statutory provisions). Because he exercised his waiver authority with respect to "all" provisions of law encompassed by the second proviso, his actions made § 1605(a)(7) "inapplicable" to Iraq. Pp. 2188-2189.

(ii) Acree's resistance to the above construction was based on a sophisticated attempt to construe EWSAA § 1503's second proviso as limiting that section's principal clause, which authorized suspension of "any provision of the Iraq Sanctions Act of 1990." While a proviso's "general office ... is to except something from the enacting clause, or to qualify and restrain its generality," United States v. Morrow, 266 U.S. 531, 534, 45 S.Ct. 173, 69 L.Ed. 425, another recognized use is "to introduce independent legislation," id., at 535, 45 S.Ct. 173, which was the function of the proviso here. In any event, § 1605(a)(7) falls within the scope of the proviso even accepting the narrower interpretation adopted by the Acree decision. Pp. 2189 -2192.

(iii) Respondents' other objections to the straightforward interpretation of EWSAA § 1503's proviso are rejected. Pp. 2191-2192.

(iv) Nothing in the NDAA changes the above analysis. Although NDAA § 1083(c)(4) appears to ratify Acree, this Court need not decide whether such a ratification is effective because § 1083(d)(1) authorized the President to "waive any provision of this section with respect to Iraq," and he waived "all" such provisions, including § 1083(c)(4). Pp. 2192-2193.

(b) The Court rejects the argument that § 1605(a)(7)'s inapplicability does not bar claims arising from Iraq's conduct prior to the President's waiver. In order to exercise jurisdiction over these cases, the District

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Court had to "apply" § 1605(a)(7) with respect to Iraq, but the President's waiver made that provision "inapplicable." No retroactivity problem is posed by this construction, if only because the primary conduct by Iraq that forms the basis for these suits actually occurred before § 1605(a)(7)'s enactment. Pp. 2192 - 2194.

(c) Respondents also argue that EWSAA § 1503's sunset clause—under which "the authorities contained in [that] section" expired in 2005—revived § 1605(a)(7) and [129 S.Ct. 2186] restored jurisdiction as of the sunset date. But expiration of the § 1503 authorities is not the same as cancellation of the effect of the prior valid exercise of those authorities. Pp. 2194 - 2195.

No. 07-1090, and No. 08-539, 529 F.3d 1187, reversed.


Jonathan S. Franklin, for petitioners.

Douglas Hallward-Driemeier, for the United States as amicus curiae, by special leave of the Court, supporting the petitioners.

Thomas C. Goldstein, for respondents.

Andrew C. Hall, Hall Lamb and Hall, P.A., Miami, FL, Counsel of Record for the Beaty Respondents, Stephen A. Fennell, Steptoe & Johnson, LLP, Washington, DC, Counsel of Record for the Simon Respondents, Thomas C. Goldstein, Counsel of Record, Akin, Gump, Strauss, Hauer & Feld LLP, Washington, DC, for respondents.

Timothy B. Mills, Maggs & McDermott LLC, Washington, D.C., Jonathan S. Franklin, Counsel of Record, Robert A. Burgoyne, Tillman J. Breckenridge, Fulbright & Jaworski L.L.P., Washington, D.C., for Petitioners.

James Cooper-Hill, Rockport, Texas, Nelson M. Jones III, Houston, Texas, Andrew C. Hall, Counsel of Record, Roarke Maxwell, Hall, Lamb and Hall, P.A., Miami, Florida, for Beaty Respondents.


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We consider in these cases whether the Republic of Iraq remains subject to suit in American courts pursuant to the terrorism exception to foreign sovereign immunity, now repealed, that had been codified at 28 U.S.C. § 1605(a)(7).



Under the venerable principle of foreign sovereign immunity, foreign states are ordinarily "immune from the jurisdiction of the courts of the United States and of the States," § 1604. See generally Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L.Ed. 287 (1812). But the statute embodying that principle—the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1602 et seq.—recognizes a number of exceptions; if any of these is applicable, the state is subject to suit, and federal district courts have jurisdiction of adjudicate the claim. § 1330(a); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983).

In 1996, Congress added to the list of statutory exceptions one for state sponsors of terrorism, which was codified at 28 U.S.C. § 1605(a)(7). Subject to limitations not relevant here, that exception stripped immunity in any suit for money damages

"against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources ... for such an act ... except

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that the court shall decline to hear a claim under this paragraph—

"(A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration [129 S.Ct. 2187] Act of 1979 (50 U.S.C.App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371) at the time the act occurred...."

In brief, § 1605(a)(7) stripped immunity from a foreign state for claims arising from particular acts, if those acts were taken at a time when the state was designated as a sponsor of terrorism.


In September 1990, Acting Secretary of State Lawrence Eagleburger formally designated Iraq, pursuant to § 6(j) of the Export Administration Act of 1979, as redesignated and amended, 99 Stat. 135, 50 U.S.C.App. § 2405(j), as "a country which has repeatedly provided support for acts of international terrorism," 55 Fed.Reg. 37793. Over a decade later, in March 2003, the United States and a coalition of allies initiated military action against that country. In a matter of weeks, the regime of Iraqi dictator Saddam Hussein collapsed and coalition forces occupied Baghdad. American attention soon shifted from combat operations to the longer term project of rebuilding Iraq, with the ultimate goal of creating a stable ally in the region.

Toward that end, Congress enacted...

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