Arnold v. Islamic Republic of Iran

• Decision Date: 31 May 2011
• Docket Number: No. 06–cv–516(RCL).,06–cv–516(RCL).
• Citation: 787 F.Supp.2d 37
• Parties: Lolita M. ARNOLD, et al., Plaintiffs,v.ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

787 F.Supp.2d 37

Lolita M. ARNOLD, et al., Plaintiffs,

v.ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

No. 06–cv–516(RCL).

United States District Court, District of Columbia.

May 31, 2011.

Joseph Peter Drennan, Attorney–at–Law, Alexandria, VA, Thomas Fortune Fay, Fay Kaplan Law, PA, Washington, DC, for Plaintiffs.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.I. INTRODUCTION

This action was filed by U.S. servicemen and their family members to call defendants Islamic Republic of Iran and the Iranian Ministry of Information and Security to account for their role in the 1983 bombing of the Marine barracks in Beirut, Lebanon. The Court consolidated this suit—which was brought pursuant to the former “state-sponsored terrorism” exception to the Foreign Sovereign Immunities Act (“FSIA”), codified at 28 U.S.C. § 1605(a)(7), and then re-filed under the current exception, codified at 28 U.S.C. § 1605A—with three § 1605A actions arising from the 1983 attacks, and last year issued an opinion finding defendants “responsible for the deaths and injuries of hundreds of American servicemen,” “liable for the emotional injuries their family members have suffered,” and deserving of punishment to the “fullest legal extent possible.” Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 90 (D.D.C.2010).

The issue before the Court today is plaintiffs' motion for payment of Special Master Susan Meek, M.D., J.D., who diligently assisted the Court throughout these proceedings by gathering and reviewing countless depositions, documents and records. Plaintiffs' request poses two distinct problems: first, plaintiffs seek payment for work performed by Dr. Meek prior to the commencement of this action; and second, they request compensation for work performed after this suit was filed but before the creation of § 1605A, which is the only provision that authorizes courts to order reimbursement for special master expenses under the FSIA. Having previously disposed of the former concern, the Court now turns to the latter.

II. BACKGROUNDA. The National Defense Authorization Act for Fiscal Year 2008

In 1996, Congress created the state-sponsored terrorism exception as part of the Antiterrorism and Effective Death Penalty Act. Pub. L. No. 104–132, § 221, 110 Stat. 1241–43 (1996). In light of its ten-year statute of limitations, § 1605(a)(7) quickly became the basis for hundreds of lawsuits against various state sponsors of terrorism. To aid the judiciary in reviewing evidence in these often-sprawling matters—many of which involved hundreds of plaintiffs—courts frequently turned to special masters appointed pursuant to Federal Rule of Civil Procedure 53. The need for such assistance with these matters has been tremendous; indeed, this Court previously observed that had it “been required to take on the functions performed by these special masters, the work of this Court with respect to numerous other pending civil and criminal cases would have come screeching to a halt.” In re Islamic Republic of Iran Terrorism Litig., 659 F.Supp.2d 31, 110 (D.D.C.2009) (“ In re Terrorism Litig.”). A lingering problem with these appointments, however, has been parties' inability to compensate special masters for their tireless work—a result largely attributable to plaintiffs' inability to collect upon their FSIA judgments.

Concerned with “significant setbacks that plaintiffs experienced in actions under § 1605(a)(7),” Congress enacted the National Defense Authorization Act for Fiscal Year 2008, Pub.L. No. 110–181, § 1083, 122 Stat. 3, 338–44 (2008) (“NDAA” or “2008 Amendments”), which, inter alia, replaced § 1605(a)(7) with § 1605A. In re Terrorism Litig., 659 F.Supp.2d at 58. With respect to the FSIA, the NDAA included four central initiatives: (1) to provide a federal cause of action against state-sponsors of terrorism, (2) to permit imposition of punitive damages for such acts, (3) to authorize compensation for special masters who aid the judiciary in guiding these often-unwieldy cases through litigation, and (4) to create new mechanisms for the enforcement of judgments under the Act. Id. at 58–59. With regard to special masters, the new state-sponsored terrorism exception includes the following provision:

(e) Special Masters.—

(1) In general.—The courts of the United States may appoint special masters to hear damage claims brought under this section.

(2) Transfer of funds.—The Attorney General shall transfer, from funds available for the program under section 1404C of the Victims of Crime Act of 1984 (42 U.S.C. 10603c), to the Administrator of the United States district court in which any case is pending which has been brought or maintained under this section such funds as may be required to cover the costs of special masters appointed under paragraph (1). Any amount paid in compensation to any such special master shall constitute an item of court costs.

28 U.S.C. § 1605A(e). Numerous special masters have now received payment for their work on state-sponsored terrorism cases pursuant to this provision through procedures set up by the Department of Justice's Office for Victims of Crime. See, e.g., Order for Payment of Special Master, Nov. 12, 2010, Valore, No. 09 Civ. 1959 [74–1].

A critical feature of the NDAA is that § 1605A was made retroactive in many respects. Section 1083(c) of the Act provides two paths, subject to certain statutory requirements, for retroactive application of the state-sponsored terrorism exception: first, actions which were pending in the courts at the time the Act was passed may, on the parties' motion, be “given effect as if the action had originally been filed under” the new exception; and second, where suits had been timely commenced under § 1605(a)(7), “any other action arising out of the same act or incident may be brought under section 1605A.” NDAA § 1083(c)(2)-(3). Numerous FSIA plaintiffs have subsequently used these provisions to proceed with suits brought under § 1605(a)(7) as § 1605A actions. And as a result of this trend, this Court has, on occasion, raised the following question: Where a special master was appointed and performed work on a case prior to the 2008 Amendments, and that case was subsequently re-filed under § 1605A pursuant to the procedures set forth in § 1083(c) of the NDAA, may the Court compensate that special master for the work performed before the Act became law? In its omnibus opinion reviewing the effects of the 2008 Amendments, this Court—speaking in general terms—suggested that special masters could receive compensation for such work. See In re Terrorism Litig., 659 F.Supp.2d at 111 (criticizing view that “any sort of retroactivity problem would serve as a bar” to such payments). The government, in contrast, has consistently argued that such payments are impermissible. See, e.g., United States' Statement in Response, July 25, 2008, Peterson v. Islamic Republic of Iran, No. 01 Civ.2094 [389]. Until today, however, the Court has not had the opportunity to confront this question in a live controversy.

B. Procedural History

This suit was brought in 2006 pursuant to the former state-sponsored terrorism exception, and in late 2009 plaintiffs amended their complaint to state claims under § 1605A. Amended Complaint, Nov. 30, 2009[18]. A few months later, plaintiffs sought the appointment of Susan Meek, M.D., J.D. as a special master in this action. Affidavit of Dr. Meek, Mar. 8, 2010[26]. The Court subsequently appointed Dr. Meek nunc pro tunc “from the date she began working on reports and recommendations for this case.” Second Order Appointing Special Master, Mar. 18, 2010[31]. Final judgment was ultimately entered in this action, along with the three consolidated matters, in March of 2010. Order & Judgment, Mar. 31, 2010[34].¹

Plaintiffs subsequently moved for payment of Dr. Meek pursuant to § 1605A(e). Motion for Order Authorizing Payment to Special Master, Nov. 12, 2010[40]. In support of that motion, plaintiffs submitted a statement from Dr. Meek in compliance with the Court's administrative plan governing special masters. Verified Voucher of Special Master Susan Meek M.D., J.D., Nov. 12, 2010 [40–2]. In that voucher, Dr. Meek seeks payment for work beginning on June 15, 2003, id. at 3—despite the fact that this case did not exist prior to March 10, 2006. In response—and after plaintiffs' repeated failures to take up the Court's invitation to brief the matter—the Court held that “it lacks the authority to order payment for work performed by special masters while appointed in cases involving different parties, where that work was undertaken prior to the filing of the FSIA action in which compensation under § 1605A(e) is sought.” Order 2, Jan. 6, 2011[46]. It therefore declined to “consider any time billed by Special Master Meek prior to the filing of this case on March 10, 2006.” Id. at 4. That Order, however, did not address the time billed by Dr. Meek during the period between the filing of this case and the enactment of the NDAA, and so—this being the first time the issue is before it—the Court invited the government's views on the matter. Id. at 3–4.

In its response, the government advances three arguments as to why no compensation may be ordered for work performed prior to the enactment of the NDAA on a case brought under § 1605(a)(7), even where that case is converted into a § 1605A suit. Department of Justice's Response, Apr. 29, 2011[48] (“Gov. Br.”). First, the government stresses that the payment provision of § 1605A(e)(2) only permits compensation for work performed by special masters appointed pursuant to § 1605A(e)(1), and because paragraph (1) did not exist prior to the 2008 Amendments, no pre-NDAA work could have been performed by a special master appointed pursuant to that provision. Id. at 4–5. Second, the government notes that courts lack authority to direct agencies to issue payments absent statutory authorization, and so any order for payment of pre-NDAA...