Cicippio-Puleo v. Islamic Republic of Iran, No. 02-7085.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtHarry T. Edwards
Citation353 F.3d 1024
PartiesElizabeth A. CICIPPIO-PULEO, et al., Appellants, v. ISLAMIC REPUBLIC OF IRAN and Iranian Ministry of Information and Security, Appellees.
Docket NumberNo. 02-7085.
Decision Date16 January 2004
353 F.3d 1024
Elizabeth A. CICIPPIO-PULEO, et al., Appellants,
v.
ISLAMIC REPUBLIC OF IRAN and Iranian Ministry of Information and Security, Appellees.
No. 02-7085.
United States Court of Appeals, District of Columbia Circuit.
Argued December 15, 2003.
Decided January 16, 2004.

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Appeal from the United States District Court for the District of Columbia (No. 01cv01496).

Thomas L. Gowen argued the cause for appellants. With him on the briefs were James J. Oliver and Steven J. McCool.

Stuart H. Newberger argued the cause for amicus curiae Blake Kilburn in support of appellants. With him on the brief were Michael L. Martinez, Laurel Pyke Malson and F. Ryan Keith.

Elizabeth B. Wydra, Supervising Attorney, argued the cause as amicus curiae in support of the District Court's judgment. With her on the brief were Steven H. Goldblatt, Director of the Appellate Litigation Program, appointed by the court, and William J. Brown, Varu Chilakamarri, and Ruthanne M. Deutsch, Student Counsel.

Douglas Letter, Litigation Counsel, U.S. Department of Justice, argued the cause for amicus curiae The United States. With him on the brief were Peter D. Keisler, Assistant Attorney General, Roscoe C. Howard, Jr., U.S. Attorney, Gregory G. Katsas, Deputy Assistant Attorney General, H. Thomas Byron III, Attorney, and Mark A. Clodfelter, Attorney, U.S. Department of State.

Before: EDWARDS, RANDOLPH, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:


This case involves a lawsuit brought against the Islamic Republic of Iran ("Iran") under the terrorism exception, 28 U.S.C. § 1605(a)(7), to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602-11 (2000). The plaintiffs in the suit are the adult children and siblings of Joseph J. Cicippio, a victim of terrorist hostage-taking. Joseph Cicippio was abducted in 1986 by Hizbollah, an Islamic terrorist organization that receives material support from Iran. He was held hostage until 1991, confined in inhumane conditions and frequently beaten. In 1996, Joseph Cicippio and his wife sued Iran for the tortious injuries they sustained as a result of Mr. Cicippio's kidnaping, imprisonment, and torture. Iran failed to respond to the complaint and default was entered on November 13, 1997. The case was tried ex parte and, on August 27, 1998, the District Court entered judgment against Iran in favor of Mr. and Mrs.

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Cicippio in the amount of $30 million. Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62, 64, 70 (D.D.C.1998). No appeal was taken.

In 2001, Joseph Cicippio's children and siblings sued Iran for the intentional infliction of emotional distress and loss of solatium they suffered as a result of Mr. Cicippio's ordeal. The Iranian defendants failed to respond to the complaint and the District Court entered default on January 2, 2002. The Cicippios filed a motion for summary judgment on January 10, 2002. Subsequently, on January 24, 2002, plaintiffs moved to consolidate their suit with Mr. and Mrs. Cicippio's case, which by then had been closed. On June 21, 2002, the District Court denied the motions for summary judgment and consolidation. The court also sua sponte dismissed the Cicippios' complaint under Federal Rules of Civil Procedure 12(b)(6) and 12(h)(3), holding that "the FSIA, as amended, does not confer subject matter jurisdiction upon it to entertain claims for emotional distress and solatium brought by claimants situated as are these plaintiffs upon the allegations of their complaint." Cicippio-Puleo v. Islamic Republic of Iran, Civ. No. 01-1496, slip op. at 2, (D.D.C. June 21, 2002), reprinted in Appendix ("App.") 3, 4. Joseph Cicippio's children and siblings now appeal. Responding to our request, the Justice Department has filed a brief as amicus curiae stating the position of the United States. The Government's position is that neither section 1605(a)(7) of the FSIA nor the Flatow Amendment, 28 U.S.C. § 1605 note, creates a private cause of action against foreign governments for acts of hostage taking or torture.

We affirm the judgment of the District Court. Section 1605(a)(7) of the FSIA abrogates foreign sovereign immunity and provides jurisdiction in specified circumstances, but it does not create a private cause of action. By its clear terms, the Flatow Amendment provides a private right of action only against individual officials, employees, and agents of a foreign state, but not against a foreign state itself. Plainly, neither section 1605(a)(7) nor the Flatow Amendment, separately or together, establishes a cause of action against foreign state sponsors of terrorism. Therefore, the Cicippios' suit cannot proceed on these grounds. However, because the Cicippios' suit was filed in the wake of judgments in favor of Mr. and Mrs. Cicippio and other hostage victims, they may have been misled in assuming that the Flatow Amendment afforded a cause of action against foreign state sponsors of terrorism. We therefore affirm the judgment of the District Court, but remand the case to allow plaintiffs an opportunity to amend their complaint to state a cause of action under some other source of law. We reserve judgment, however, on whether the Cicippios have any viable basis for an action against Iran, leaving that issue to the District Court in the first instance.

I. BACKGROUND

A. Facts

On the morning of September 12, 1986, Joseph. J. Cicippio was kidnaped in Beiruit, Lebanon, by the terrorist group Hizbollah, an agent of Iran's Ministry of Information and Security ("MOIS"). At the time of his abduction, Mr. Cicippio was comptroller of the American University of Beiruit. Hizbollah held him hostage for 1,908 days. During that time, he was randomly beaten, confined in rodent- and scorpion-infested cells, and bound by chains. He suffered from numerous medical problems emanating from the inhumane treatment that he experienced during his captivity. At some point after Mr. Cicippio was taken hostage, he was forced to undergo major surgery for an unidentified abdominal condition that has left a

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ten-inch scar on his abdomen. See Cicippio, 18 F.Supp.2d at 66.

In 1996, Joseph Cicippio filed suit against Iran under the "terrorism exception" to the FSIA, 28 U.S.C. § 1605(a)(7), and the Flatow Amendment, 28 U.S.C. § 1605 note. His lawsuit was joined by his wife, Elham Cicippio, two other hostage victims, and the wife of one of the other victims. The Iranian defendants did not respond to the complaint and were found in default. The case was tried ex parte and, on August 27, 1998, the District Court rendered a judgment for Joseph Cicippio in the amount of $20 million in damages for lost wages and opportunities and compensatory damages for pain and suffering and mental anguish, and $10 million for Mrs. Cicippio in damages for loss of her husband's society and companionship and mental anguish. See Cicippio, 18 F.Supp.2d at 64, 70. Iran never entered an appearance in the case and no appeal was taken from the judgment of the District Court.

The instant case arises from a lawsuit brought in 2001 by Joseph Cicippio's seven adult children and seven siblings against Iran and MOIS for the intentional infliction of emotional distress and loss of solatium they sustained as a result of Mr. Cicippio's ordeal. The suit was based on claims purporting to arise under section 1605(a)(7) and the Flatow Amendment. On January 2, 2002, after Iran failed to respond to the complaint, the District Court entered a default judgment for the Cicippio children and siblings. On January 10, 2002, the Cicippios filed a motion for summary judgment. They subsequently filed a motion to consolidate their case with Mr. and Mrs. Cicippio's lawsuit against Iran, which by then had been closed. The motion for summary judgment included affidavits from the children and siblings establishing that Mr. Cicippio's captivity caused them to suffer from emotional distress by virtue of the harm done to him.

B. The Statutory Framework

The FSIA provides that "[s]ubject to existing international agreements to which the United States is a party at the time of enactment of this Act 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." 28 U.S.C. § 1604. Under the FSIA, foreign states enjoy immunity from suit in U.S. courts unless Congress waives immunity under an enumerated exception. In 1996, as part of the comprehensive Antiterrorism and Effective Death Penalty Act ("AEDPA"), Congress enacted the "terrorism exception" to the FSIA, waiving the immunity of foreign states and their agents in any case

in which money damages are sought 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 (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency ...

28 U.S.C. § 1605(a)(7). This provision only waives the immunity of a foreign state defendant that has been specifically designated by the State Department as a "state sponsor of terrorism," 28 U.S.C. § 1605(a)(7)(A), and does not apply if

(i) the act occurred in the foreign state against which the claim has been brought and the claimant has not afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance

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with accepted international rules of arbitration; or

(ii) neither the claimant nor the victim was a national of the United States (as that term is defined in section 101(a)(22) of the Immigration and Nationality Act) when the act upon which the claim is based...

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138 practice notes
  • Estate of Heiser v. Islamic Republic of Iran, Nos. 00–cv–2329 (RCL), 01–cv–2104 (RCL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 31, 2012
    ...causes of action against foreign state-sponsors of terrorism were found in state law. See Cicippio–Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1027 (D.C.Cir.2004). Congress became unhappy with this pass-through approach and the “lack of uniformity in the underlying state sources of la......
  • Thuneibat v. Syrian Arab Republic, Civil Action No. 12-cv-00020 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 1, 2016
    ...are considered part of the state itself under the FSIA.” (citing 28 U.S.C. § 1603(a),(b) ; Cicippio–Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033–34 (D.C.Cir.2004), superseded by statute, 28 U.S.C. § 1605A ; and Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C.Cir.2003) )......
  • Ministry of Defense and Support v. Cubic Defense, No. 99-56498.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 7, 2004
    ...MOD relies heavily on a recent decision by the Court of Appeals for the District of Columbia, Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C.Cir.2004). In Cicippio, the D.C. Circuit held that "neither 28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two considered in......
  • Beaty v. Republic of Iraq, Civil Action No. 03-0215(JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 20, 2007
    ...unanswered questions as to the contours of 28 U.S.C. § 1605(a)(7). One of those decisions, Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C.Cir.2004), was issued shortly after the first status conference in this case. The court of appeals in Cicippio resolved two questions of ......
  • Request a trial to view additional results
138 cases
  • Estate of Heiser v. Islamic Republic of Iran, Nos. 00–cv–2329 (RCL), 01–cv–2104 (RCL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 31, 2012
    ...causes of action against foreign state-sponsors of terrorism were found in state law. See Cicippio–Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1027 (D.C.Cir.2004). Congress became unhappy with this pass-through approach and the “lack of uniformity in the underlying state sources of la......
  • Thuneibat v. Syrian Arab Republic, Civil Action No. 12-cv-00020 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 1, 2016
    ...are considered part of the state itself under the FSIA.” (citing 28 U.S.C. § 1603(a),(b) ; Cicippio–Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033–34 (D.C.Cir.2004), superseded by statute, 28 U.S.C. § 1605A ; and Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C.Cir.2003) )......
  • Ministry of Defense and Support v. Cubic Defense, No. 99-56498.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 7, 2004
    ...MOD relies heavily on a recent decision by the Court of Appeals for the District of Columbia, Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C.Cir.2004). In Cicippio, the D.C. Circuit held that "neither 28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two considered in......
  • Beaty v. Republic of Iraq, Civil Action No. 03-0215(JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 20, 2007
    ...unanswered questions as to the contours of 28 U.S.C. § 1605(a)(7). One of those decisions, Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C.Cir.2004), was issued shortly after the first status conference in this case. The court of appeals in Cicippio resolved two questions of ......
  • Request a trial to view additional results

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