Acree v. Republic of Iraq, No. 03-5232.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Harry T. Edwards
• Citation: 370 F.3d 41
• Parties: Clifford ACREE, Colonel, et al., Appellees, v. REPUBLIC OF IRAQ, et al., United States of America, Appellant
• Decision Date: 04 June 2004
• Docket Number: No. 03-5232.

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370 F.3d 41 Clifford ACREE, Colonel, et al., Appellees,
v.
REPUBLIC OF IRAQ, et al.,
United States of America, Appellant No. 03-5232. United States Court of Appeals, District of Columbia Circuit. Argued April 7, 2004. Decided June 4, 2004.

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Appeal from the United States District Court for the District of Columbia (No. 02cv00632).

Gregory G. Katsas, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant. With him on the brief were Peter D. Keisler, Assistant Attorney General, Roscoe C. Howard, Jr., U.S. Attorney, Douglas N. Letter, H. Thomas Byron, III, Douglas Hallward-Driemeier, and Lewis Yelin, Attorneys.

Stewart A. Baker argued the cause for appellee Clifford Acree, et al. With him on the brief were Stephen A. Fennell, Bennett Evan Cooper, and John Norton Moore.

Daniel J. Popeo and Paul D. Kamenar were on the brief for amici curiae in support of appellees.

Before: EDWARDS, TATEL, and ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

Opinion concurring in part and concurring in the judgment filed by Circuit Judge ROBERTS.

HARRY T. EDWARDS, Circuit Judge:

Appellees in this case are 17 American soldiers, joined by their close family members, who were captured and held as prisoners

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of war by the Iraqi Government while serving in the Gulf War in early 1991. Appellees brought suit in the District Court under the terrorism exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(7) (2000), against the Republic of Iraq, the Iraqi Intelligence Service, and Saddam Hussein, in his official capacity as President of Iraq (collectively "Iraq"), seeking compensatory and punitive damages for the horrific acts of torture they suffered during their captivity. After Iraq failed to appear, the District Court examined appellees' evidentiary submissions and entered judgment in their favor. The District Court awarded damages against Iraq totaling over $959 million. See Acree v. Republic of Iraq, 271 F.Supp.2d 179 (D.D.C.2003) ("Acree I").

Two weeks after the District Court entered its judgment for appellees, the United States filed a motion to intervene for the purpose of contesting the District Court's subject matter jurisdiction. The United States argued that recently enacted provisions of the Emergency Wartime Supplemental Appropriations Act, Pub. L. No. 108-11, § 1503, 117 Stat. 559, 579 (2003), made the terrorism exception to the FSIA inapplicable to Iraq and thereby stripped the District Court of its jurisdiction over appellees' lawsuit. The District Court denied the United States' motion to intervene as untimely, see Acree v. Republic of Iraq, 276 F.Supp.2d 95 (D.D.C.2003) ("Acree II"), and the United States now appeals.

We hold that the District Court abused its discretion in finding the United States' motion to intervene to be untimely and erred in denying that motion. The United States possesses weighty foreign policy interests that are clearly threatened by the entry of judgment for appellees in this case. Although the United States filed its motion after the District Court had entered its judgment, appellees have asserted no prejudice arising from the intervention. On the merits of the United States' jurisdictional challenge, we hold that the District Court properly exercised jurisdiction in appellees' lawsuit. Although it presents a close question of statutory interpretation, we conclude that the disputed language in the emergency supplemental appropriations act does not encompass the terrorism exception to the FSIA.

We nevertheless conclude that the District Court's judgment in favor of appellees must be vacated and their lawsuit dismissed for failure to state a cause of action. The District Court's judgment against Iraq rests solely on causes of action purportedly arising under the terrorism exception and the Flatow Amendment to the FSIA. Neither appellees' complaint, nor their submissions to this court, nor the District Court's decision in their favor offers any other coherent alternative causes of action in support of appellees' claims against Iraq. Our recent decision in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C.Cir.2004) ("Cicippio"), makes it plain that the terrorism exception to the FSIA is merely a jurisdictional provision and does not provide a cause of action against foreign states. Cicippio also holds that the Flatow Amendment to the FSIA, which provides a cause of action against an "official, employee, or agent of a foreign state," 28 U.S.C. § 1605 note (2000), does not afford a cause of action against a foreign state itself. We are therefore constrained to vacate the judgment of the District Court and dismiss appellees' suit for failure to state a cause of action.

I. BACKGROUND

A. The POW Lawsuit

The facts in this case are undisputed. While serving in the Gulf War following

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the Iraqi invasion of Kuwait, Colonel Clifford Acree and 16 other American soldiers who are appellees in this case were captured and held as prisoners of war in Kuwait and the Republic of Iraq between January and March 1991. On April 4, 2002, these POWs and their close family members filed a complaint in the District Court against the Republic of Iraq, the Iraqi Intelligence Service, and Saddam Hussein, in his official capacity as President of Iraq, for personal injuries caused to them and their family members as a result of their treatment by Iraq. In their complaint, the POW plaintiffs described brutal and inhumane acts of physical and psychological torture suffered during their captivity, including severe beatings, starvation, mock executions, dark and unsanitary living conditions, and other violent and shocking acts. By these alleged atrocities, the plaintiffs' captors created a "climate [of] humiliation and degradation," in which the POWs "liv[ed] in constant fear of death and torture." Compl. ¶ 5, reprinted in Joint Appendix ("J.A.") 35.

Jurisdiction in the plaintiffs' lawsuit was based on the terrorism exception to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(7). Under the FSIA, foreign states enjoy immunity from suit in American courts, unless that immunity has been waived or abrogated pursuant to an exception enumerated in the FSIA. See 28 U.S.C. § 1604; see also 28 U.S.C. § 1330(a) (limiting the district courts' jurisdiction over suits against foreign states to cases in which the foreign state is not entitled to immunity under the FSIA). Section 1605(a)(7), added to the FSIA in 1996, creates an exception to foreign sovereign immunity in civil suits "in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture" or other terrorist acts. 28 U.S.C. § 1605(a)(7). This exception applies only if the defendant foreign state was designated as a state sponsor of terrorism at the time the alleged acts of torture occurred. See 28 U.S.C. § 1605(a)(7)(A). Pursuant to § 6(j) of the Export Administration Act, 50 U.S.C.App. § 2405(j) (1988 & Supp. I 1989), the Republic of Iraq was designated as a state sponsor of terrorism on September 13, 1990, shortly after the Iraqi invasion of Kuwait and before the events took place that formed the basis of the plaintiffs' claims. See 55 Fed. Reg. 37,793 (Sep. 13, 1990). Iraq was therefore amenable to suit in federal court under the FSIA at the time the plaintiffs commenced their lawsuit.

Citing several decisions of the District Court, the plaintiffs - appellees herein — premised their cause of action on § 1605(a)(7), as amended by the so-called "Flatow Amendment," which was adopted shortly after § 1605(a)(7) was added to the FSIA in 1996. See Compl. ¶ 596, J.A. 143. The Flatow Amendment provides that:

[A]n official, employee, or agent of a foreign state designated as a state sponsor of terrorism ... while acting within the scope of his or her office, employment, or agency shall be liable to a United States national or the national's legal representative for personal injury or death caused by acts of that official, employee, or agent for which the courts of the United States may maintain jurisdiction under [§ 1605(a)(7)] for money damages which may include economic damages, solatium, pain, and suffering, and punitive damages if the acts were among those described in [§ 1605(a)(7)].

28 U.S.C. § 1605 note. Appellees alleged that the acts of torture set forth in their complaint constituted "traditional torts of assault, battery and intentional infliction of emotional distress," Compl. ¶ 597, J.A. 143, and requested compensatory and punitive

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damages for each of the POW plaintiffs and their family members.

Appellees effected proper service of process through diplomatic channels, pursuant to 28 U.S.C. § 1608. The Iraqi defendants failed to appear, and the Clerk of the District Court accordingly entered default against the defendants on September 25, 2002. On March 31, 2003, appellees submitted evidence to support their assertion of liability and claim for damages. These submissions provided further details regarding the factual basis of appellees' claims and again asserted the existence of a cause of action based on § 1605(a)(7), as amended by the Flatow Amendment, for assault, battery, and intentional infliction of emotional distress. See Pls.' Proposed Findings of Fact and Conclusions of Law at 80-90.

On July 7, 2003, the District Court entered final judgment in favor of appellees. See Acree I, 271 F.Supp.2d 179. The District Court held that "[s]uits brought under § 1605(a)(7) may be based on conventional common law torts." Id. at 215. Based on extensive findings of fact regarding the specific injuries suffered by each plaintiff, the District Court awarded compensatory and punitive damages to all of the POW plaintiffs and their family members totaling over $959 million. Id. at 224-25.

B. Legal and Military Developments in Iraq

As the proceedings...