Cicippio v. Islamic Republic of Iran, No. 93-7047

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSILBERMAN
Citation30 F.3d 164
PartiesJoseph J. CICIPPIO, Elham Cicippio, David Jacobson, Appellants, v. ISLAMIC REPUBLIC OF IRAN, Appellee.
Decision Date29 July 1994
Docket NumberNo. 93-7047

Page 164

30 F.3d 164
308 U.S.App.D.C. 102
Joseph J. CICIPPIO, Elham Cicippio, David Jacobson, Appellants,
v.
ISLAMIC REPUBLIC OF IRAN, Appellee.
No. 93-7047.
United States Court of Appeals,
District of Columbia Circuit.
Argued May 19, 1994.
Decided July 29, 1994.

Page 165

Appeal from the United States District Court for the District of Columbia (92cv2300).

James Godin, Norristown, PA, of the Bar of the Supreme Court of Pennsylvania, pro hac vice, by special leave of the Court, argued the cause for appellants. On the briefs for appellants was Barbara A. Barnes.

Bruno A. Ristau, Washington, DC, argued the cause and filed the brief for appellee.

Before: WALD, SILBERMAN, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Appellants appeal from the district court's order dismissing their action against the Islamic Republic of Iran for lack of subject matter jurisdiction. Concluding that kidnapping is not, by its nature, a commercial act, that dealings directly between two sovereign states do not constitute "commercial activity" within the meaning of the Foreign Sovereign Immunities Act, and that the "noncommercial tort" exception does not apply, we affirm.

I.

This case arises out of the well-publicized abductions of appellants Joseph Cicippio and David Jacobson in Lebanon. 1 Appellants' complaint alleges that while working in Lebanon, Cicippio and Jacobson were abducted by Islamic fundamentalists hired by the State of Iran and held by those agents for an extended period of time, during which they were tortured. 2 Iran conditioned the release of Cicippio and Jacobson on the return of Iranian assets frozen in this country by the United States government. That abduction, it is also alleged, caused direct effects in the United States through the emotional harm suffered by the victims' families, the payment of monies to the captors by Mrs. Cicippio, and the unfreezing of Iranian assets. Jacobson and Cicippio, on the basis of these factual allegations, sought damages for a number of intentional torts and for violations of international law. They invoked the "commercial activity" and the "noncommercial tort" exceptions to the Foreign Sovereign Immunities Act (FSIA) as bases for federal court jurisdiction.

Appellee, the Islamic Republic of Iran, moved to dismiss the suit on grounds that the court lacked subject matter jurisdiction under the FSIA as well as personal jurisdiction over the defendant. The district court granted the motion to dismiss on lack of subject matter jurisdiction. It concluded that although Iran's alleged actions did appear to constitute "commercial activity" within the meaning of the FSIA--at least under the Supreme Court's analysis--"state-supported kidnapping, hostage-taking, and similar universally criminal ventures were simply not the sorts of proprietary enterprises within the contemplation of Congress when it enacted the 'commercial activity' exception to [the] FSIA." This appeal followed.

II.

The Foreign Sovereign Immunities Act of 1976, 28 U.S.C. Sec. 1602 et seq. (1988), provides that a "foreign state shall be immune from the jurisdiction of the courts of the United States and of the States." 28 U.S.C. Sec. 1604 (1988). The Act does create, however, a number of exceptions to this immunity. Two are invoked here: the "commercial activity" and the "noncommercial tort" exceptions.

Page 166

See 28 U.S.C. Secs. 1605(a)(2), 1605(a)(5) (1988). We consider them in turn.

A.

The Act permits a suit against a foreign government to proceed in any case

in which the action is based upon a commercial activity carried on in the United States by a foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.

28 U.S.C. Sec. 1605(a)(2) (1988) (emphasis added). Appellants rely on the third clause of this subsection; i.e., they claim that the government of Iran committed an act in connection with commercial activity elsewhere. The FSIA defines "commercial activity" as "either a regular course of commercial conduct or a particular commercial transaction or act." 28 U.S.C. Sec. 1603(d) (1988). The subsection further directs that the "commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." Id. We have not a little difficulty in understanding appellants' precise theory of the case because they do not clearly identify which of the allegations is the "act" and which makes up the "commercial activity". As best we can determine, appellants treat "hostage taking for profit" as both the act and the commercial activity. In other words, appellants do not specifically claim that the freezing or prospective unfreezing of Iranian assets (or the payments made by Cicippio's relatives) to gain his release constitute commercial activity, and that the kidnapping is an act in connection with that transaction. Instead, appellants present the situation as one integrated activity of a commercial nature which suggests that they should be suing under the first clause. We assume, however, that appellants are implicitly claiming that one of the acts relating to the abduction takes place "elsewhere" from the commercial activity. We therefore consider whether a foreign sovereign's alleged use of non-official agents to conduct alleged hostage takings to gain economic advantages can be considered a commercial activity.

The Supreme Court first had occasion to apply the FSIA's phrase "commercial activity" in Republic of Argentina v. Weltover, Inc., --- U.S. ----, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992). There the government of Argentina had issued bonds payable in dollars to support its guarantee of payments of loans its domestic borrowers took from foreign creditors. When the Argentine government unilaterally extended the time of payment it was sued in New York (where payment was to be made) by foreign creditors. Drawing on the legislative history of the FSIA, as well as on the pre-Act practice of the State Department, the Court

conclude[d] that when a foreign government acts, not as regulator of a market, but in the manner of a private player within it, the foreign sovereign's actions are "commercial" within the meaning of the FSIA.... [T]he issue...

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44 practice notes
  • Coleman v. Alcolac, Inc., Civ. A. No. G-94-415.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 6 Junio 1995
    ...must also occur here. Amerada Hess, 488 U.S. at 441, 109 S.Ct. at 691; Jones, 954 F.2d at 1065; Cicippio v. Islamic Republic of Iran, 30 F.3d 164, 169 (D.C.Cir. 1994); Frolova, 761 F.2d at 379 (citing explicit legislative history indicating Congress intended the tortious act or omission, as......
  • Owens v. Republic Sudan, No. 14-5105
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 28 Julio 2017
    ...See, e.g. , Saudi Arabia v. Nelson , 507 U.S. 349, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) ; Cicippio v. Islamic Republic of Iran , 30 F.3d 164 (D.C. Cir. 1994) ; Smith v. Socialist People's Libyan Arab Jamahiriya , 886 F.Supp. 306 (E.D.N.Y. 1995). This changed with the passage of the Antiter......
  • Mwani v. Bin Laden, No. 04-5266.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 5 Agosto 2005
    ...In Cicippio v. Islamic Republic of Iran, we held that hostage-taking for profit did not fall within the commercial activity exception. See 30 F.3d 164, 168 (D.C.Cir.1994). This was Page 17 we said, because the act giving rise to jurisdiction must itself take place in a commercial context. A......
  • Youming Jin v. Ministry of State Sec., Civil Action No. 02-627 (RMU).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 1 Marzo 2007
    ...the cause of action is based on the commercial activities, the foreign sovereign is not immune. Cicippio v. Islamic Republic of Iran, 30 F.3d 164, 167 Page 63 FSIA defines "commercial activity" as "either a regular course of commercial conduct or a particular commercial transaction or act."......
  • Request a trial to view additional results
44 cases
  • Coleman v. Alcolac, Inc., Civ. A. No. G-94-415.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 6 Junio 1995
    ...must also occur here. Amerada Hess, 488 U.S. at 441, 109 S.Ct. at 691; Jones, 954 F.2d at 1065; Cicippio v. Islamic Republic of Iran, 30 F.3d 164, 169 (D.C.Cir. 1994); Frolova, 761 F.2d at 379 (citing explicit legislative history indicating Congress intended the tortious act or omission, as......
  • Owens v. Republic Sudan, No. 14-5105
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 28 Julio 2017
    ...See, e.g. , Saudi Arabia v. Nelson , 507 U.S. 349, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) ; Cicippio v. Islamic Republic of Iran , 30 F.3d 164 (D.C. Cir. 1994) ; Smith v. Socialist People's Libyan Arab Jamahiriya , 886 F.Supp. 306 (E.D.N.Y. 1995). This changed with the passage of the Antiter......
  • Mwani v. Bin Laden, No. 04-5266.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 5 Agosto 2005
    ...In Cicippio v. Islamic Republic of Iran, we held that hostage-taking for profit did not fall within the commercial activity exception. See 30 F.3d 164, 168 (D.C.Cir.1994). This was Page 17 we said, because the act giving rise to jurisdiction must itself take place in a commercial context. A......
  • Youming Jin v. Ministry of State Sec., Civil Action No. 02-627 (RMU).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 1 Marzo 2007
    ...the cause of action is based on the commercial activities, the foreign sovereign is not immune. Cicippio v. Islamic Republic of Iran, 30 F.3d 164, 167 Page 63 FSIA defines "commercial activity" as "either a regular course of commercial conduct or a particular commercial transaction or act."......
  • Request a trial to view additional results

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