Hegna v. Islamic Revolutionary Guard Corps.

• Decision Date: 10 December 2012
• Docket Number: Civil Action 08-274 (RC)
• Parties: EDWINA R. HEGNA, as Executrix of the Estate of Charles F. Hegna, et al., Plaintiffs, v. ISLAMIC REVOLUTIONARY GUARD CORPS, et al., Defendants.
• Court: U.S. District Court — District of Columbia

EDWINA R. HEGNA, as Executrix of the Estate of Charles F. Hegna, et al., Plaintiffs,

v.ISLAMIC REVOLUTIONARY GUARD CORPS, et al., Defendants.

Civil Action 08-274 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Date: December 10, 2012

MEMORANDUM OPINION

Charles Hegna was an American passenger on a flight hijacked by Hezbollah terrorists in December 1984. The flight was scheduled to proceed from Kuwait City to Karachi by way of Beirut; the terrorists diverted the plane to Tehran, where they murdered Mr. Hegna. His widow and four children brought suit under the terrorism exception to the Foreign Sovereign Immunities Act. The court entered a default judgment against the Islamic Republic of Iran and its Ministry of Information and Security, both of which supported Hezbollah. In 2008, Congress enacted a new terrorism exception and repealed the original version. The Hegnas now bring this second action under that new provision, seeking additional damages for the same injuries at issue in their earlier suit. The statute does not clearly authorize this second suit—and if it did, it would raise a serious question as to whether it violated the Article III prohibition on the legislative revision of final judicial judgments. This court therefore resolves the statutory ambiguity to avoid the constitutional question, holding that the present suit is not authorized by statute, denying the plaintiffs' motion for a default judgment, and dismissing their claims.

I. BACKGROUND

The Foreign Sovereign Immunities Act "grants United States courts both subject matter and personal jurisdiction (where service of process has been made) over any claim against a foreign state as to which the state is not entitled to immunity." World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1159 n.5 (D.C. Cir. 2002) (citing 28 U.S.C. § 1330(a), (b)).¹ It is "the sole basis for obtaining jurisdiction over a foreign state in our courts." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989); see also Republic of Austria v. Altmann, 541 U.S. 677, 688–91 (2004); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486-89 (1983) (discussing the history of foreign sovereign immunity in U.S. courts and the structure of the Foreign Sovereign Immunities Act). Under the Foreign Sovereign Immunities Act, "foreign states generally are entitled to immunity unless the case falls within one of a list of statutory exceptions." Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 839 (D.C. Cir. 2009); see 28 U.S.C. § 1604 (granting immunity); id. §§ 1605, 1065A, 1607 (providing exceptions). When the Act was signed in 1976, Pub. L. No. 94-583, 90 Stat. 2891 (codified at 28 U.S.C. §§ 1330, 1332, 1391, 1441, 1602–11 (1976)), the exceptions included "cases in which the state has waived its immunity, 28 U.S.C. § 1605(a)(1), cases based upon various forms of commercial activity, id. § 1605(a)(2), takings of property in violation ofinternational law, id. § 1605(a)(3), and torts committed in the United States, id. § 1605(a)(5)," Price, 294 F.3d at 87 (citation expanded); see also Central Bank of Nigeria, 461 U.S. at 489 n.11 (listing other exceptions). The Act allowed for compensatory—but not punitive—damages to be levied against foreign states. 28 U.S.C. § 1606 (1976). "[A]n agency or instrumentality" of a state could, however, be held liable for punitive damages. Id.

In 1996, as part of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, § 221(a), 110 Stat. 1214, Congress added "an additional exception colloquially known as the 'terrorism exception,'" Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir. 2004), which withdrew immunity for certain foreign states in cases

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 . . . 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) (Supp. II 1996). "This exception applie[d] only if three additional criteria [were] also satisfied: the foreign state was designated a 'state sponsor of terrorism' at the time the act occurred; the foreign state was given a reasonable opportunity to arbitrate a claim regarding an act that occurred within the state's borders; and the claimant or victim was a national of the United States." Kilburn, 376 F.3d at 1126–27 (citing 28 U.S.C. § 1605(a)(7)(A), (B)). When the terrorism exception was enacted, "it was far from clear whether . . . § 1605(a)(7), in and of itself, served as a basis for an independent federal cause of action against foreign state sponsors of terrorism." In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 42 (D.D.C. 2009). "[Q]uestions remained . . . whether any civil claims or money damages were available by virtue of that enactment." Id. at 43.

"Five months after the passage of [the terrorism exception], Congress enacted a separate provision, titled Civil Liability for Acts of State Sponsored Terrorism, which created a private right of action against officials, employees, and agents of foreign states for the conduct described in § 1605(a)(7)." Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1029 (D.C. Cir. 2004) (citing Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, Div. A, Title I, § 101(c) [Title V, § 589], 110 Stat. 3009-172 (codified at 28 U.S.C. § 1605 note)). That provision is known as the "Flatow Amendment," in memory of Alisa Flatow, an American college student who died from the injuries she suffered in a terrorist bombing in Israel. Id.; In re Terrorism Litig., 659 F. Supp. 2d at 43. 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 section 1605(a)(7) of title 28, United States Code for money damages which may include economic damages, solatium, pain, and suffering, and punitive damages if the acts were among those described in section 1605(a)(7).

28 U.S.C. § 1605 note (Supp. II 1996) (emphasis added). Upon its enactment, it was "undisputed that the Flatow Amendment permit[ted] U.S. nationals to pursue a private right of action for terrorism against officials, employees, and agents of designated foreign states acting in their personal capacities." Cicippio-Puleo, 353 F.3d at 1029. It was an open question, however, "whether section 1605(a)(7) and the Flatow Amendment similarly provide[d] a cause of action against a foreign state." Id. (emphasis deleted).

Most judges in this district answered that question in the affirmative. Regier v. Islamic Republic of Iran, 281 F. Supp. 2d 87, 99 (D.D.C. 2003) (Bates, J.) (holding, on the basis of § 1607(a)(7) and the Flatow Amendment, that "plaintiffs have a cause of action against Iran");Kilburn v. Republic of Iran, 277 F. Supp. 2d 24, 37 (D.D.C. 2003) (Urbina, J.) (holding that "the Flatow Amendment does provide victims of state-sponsored acts of terrorism with a cause of action against the culpable foreign state"); Acree v. Republic of Iraq, 271 F. Supp. 2d 179, 215 (D.D.C. 2003) (Roberts, J.) ("Section 1605(a)(7), as amended [by the Flatow Amendment], creates a federal cause of action against . . . the state and its instrumentalities themselves."); Surette v. Islamic Republic of Iran, 231 F. Supp. 2d 260, 267 (D.D.C. 2002) (Friedman, J.); Mousa v. Islamic Republic of Iran, 238 F. Supp. 2d 1, 11 (D.D.C. 2001) (Bryant, J.) ("Under the [Foreign Sovereign Immunities Act], a foreign state may be liable when there is injury from a terrorist act that was perpetrated by the designated state or an agent receiving material support from the designated state" and other conditions are met.); Daliberti v. Republic of Iraq, 146 F. Supp. 2d 19, 25 (D.D.C. 2001) (Oberdorfer, J.) (finding cause of action against Iraq under the Flatow Amendment); Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 106 (D.D.C. 2000) (Green, J.H., J.) (holding that the Flatow Amendment "provides a cause of action against a foreign state . . . for any act which would give a court jurisdiction under 28 U.S.C. § 1607(a)(7)"); Higgins v. Islamic Republic of Iran, 2000 WL 33674311, at *7 (D.D.C. Sept. 21, 2000) (Kollar-Kotelly, J.); Anderson v. Islamic Republic of Iran, 90 F. Supp. 2d 107, 113 (D.D.C. 2000) (Jackson, J.) ("Section 1605(a)(7) of the Foreign Sovereign Immunities Act . . . provides a cause of action against a foreign state . . . ."); Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 12-15 (D.D.C. 1998) (Lamberth, J.) (finding a federal cause of action against Iran under § 1607(a)(7) and the Flatow Amendment, construed in pari materia).

Another judge disagreed. In Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d 140 (D.D.C. 2002), former hostages taken from the American Embassy in Tehran during the IranianRevolution and held for more than a year brought suit against Iran under the Foreign Sovereign Immunities Act. The hostages had been released after the United States reached an executive agreement known as the Algiers Accords with the Islamic Republic of Iran. As part of the Algiers Accords, the United States committed to bar its courts from hearing any claims arising out of the seizure and detention of the Roeder plaintiffs. That commitment was implemented by executive order and Treasury regulation. Roeder, 195 F. Supp. 2d at 146-48. The question in Ro...