Ledgerwood v. State of Iran

• Decision Date: 27 June 1985
• Docket Number: Civ. A. No. 81-0554.
• Citation: 617 F. Supp. 311
• Parties: Raymond LEDGERWOOD, et al., Plaintiffs, v. STATE OF IRAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

617 F. Supp. 311

Raymond LEDGERWOOD, et al., Plaintiffs, v. STATE OF IRAN, et al., Defendants.

Civ. A. No. 81-0554.

United States District Court, District of Columbia.

June 27, 1985.

John P. Coale, Washington, D.C., for plaintiffs.

Christine Nettesheim and Theodore C. Hirt, Dept. of Justice, Civil Div., Washington, D.C., for defendants.

MEMORANDUM OPINION

JOHN GARRETT PENN, District Judge.

The plaintiffs, Raymond and Colleen Ledgerwood, filed this action on March 9, 1981. The plaintiffs seek redress in tort for alleged personal injuries and deprivation of civil rights arising out of a February 14, 1979 seizure by Iranian militants of the United States Embassy in Tehran, Iran. Alleging that from February 14, 1979 through February 15, 1979 the state of Iran and ten unidentified "John Doe" defendants unjustly imprisoned and assaulted Raymond Ledgerwood, the plaintiffs now seek fifteen million dollars in damages.

The matter is now before the Court sua sponte to determine whether this court has jurisdiction over the defendants, and if so, whether the Court should exercise jurisdiction. The plaintiffs filed a motion for entry of a default judgment against Iran. In response, the Department of Justice filed a Statement of Interest on behalf of the United States asserting that the action is barred by both the provisions of the Foreign Sovereign Immunities Act (FSIA) of 1976, 28 U.S.C.A. §§ 1330, 1602 et seq. (1976) and Executive Order 12283, 46 Fed. Reg. 7927 (January 23, 1981), along with its implementing Treasury regulations. In a special appearance, counsel for the defendants filed a Statement asserting that paragraph eleven of the Declaration of the Democratic and Popular Republic of Algeria, 20 Int'l L. Materials 224, 227 (1981) obligates the United States to bar this lawsuit.

FLAG, Inc., a non profit organization, filed a brief amicus curiae, urging that jurisdiction would lie in the instant action, as the sovereign immunity of the government of Iran would be waived by virtue of 28 U.S.C. § 1605(a)(5). The plaintiffs advance a similar argument that because the action falls within the section 1605(a)(5) FSIA exception for certain noncommercial acts,¹ Iran is not entitled to immunity. After careful consideration of the record, the arguments, and the applicable law, the Court concludes that the Foreign Sovereign Immunities Act precludes maintenance of this tort action against Iran.

It is well established law that "an action brought in the United States against a foreign sovereign faces two potential obstacles —the Foreign Sovereign Immunities Act and the `act of state' doctrine."² Frolova v. Union of Soviet Socialist Republics, 558 F.Supp. 358, 360 (N.D.Ill.1983). The Foreign Sovereign Immunities Act (FSIA) of 1976, sets forth the sole and exclusive standards for consideration in resolving questions of sovereign immunity raised by foreign states before federal or state courts in the United States. 28 U.S.C. §§ 1602 et seq.; Annot. 25 A.L.R.3d 20 (Supp.1984). Under the FSIA, foreign states are generally immune from the jurisdiction of federal and state courts. Persinger v. Islamic Republic of Iran, 729 F.2d 835, 838 (D.C.Cir.), cert. denied, ___ U.S. ___, 105 S.Ct. 247, 83 L.Ed.2d 185 (1984); (citing The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136, 3 L.Ed. 287 (1812)). The FSIA expressly deprives a court of jurisdiction over any party entitled to sovereign immunity. Persinger, 729 F.2d at 838.

The FSIA does, however, create certain exceptions where the sovereign nation loses its immunity:

Subject 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 (emphasis added).

If one of the specified exemptions to sovereign immunity applies, a federal district court may exercise jurisdiction under § 1330(a); but if the claim does not fall within one of the exceptions, federal courts lack subject matter jurisdiction. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 1969, 76 L.Ed.2d 81 (1983).

Section 1605(a)(5) creates one such exception for certain noncommercial (or tortious actions) as follows:

A foreign state shall not be immune from the jurisdictions of courts of the United States in any case ... in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious acts or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office, or employment; except this paragraph shall not apply to— (A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or

(B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

Id. (emphasis added). The legislative history of section 1605 clearly establishes that "the tortious act or omission must occur within the jurisdiction of the United States ..." H.R.Rep. No. 1487, 94th Cong., 2d Sess. 21, reprinted in 1976 U.S.Code Cong. & Ad.News 6604, 6619. 28 U.S.C. § 1603(c) defines "United States" to include "all territory and waters, continental or insular, subject to the jurisdiction of the United States".

Resolution of the immunity issue in the instant action therefore, turns upon whether or not the acts complained of occurred within the jurisdiction of the United States. The events in question occurred in the United States Embassy in Tehran, Iran. The plaintiffs would have the Court read the language "occurring in the United States" as encompassing acts occurring in United States embassies abroad. However, a review of the legislative history of the Act and the relevant case law reveals that United States embassy grounds abroad are not subject to the jurisdiction of the United States for purposes of the FSIA.

This circuit and the ninth circuit have recently addressed the jurisdictional issue and congressional intent regarding the scope of section 1605(a)(5). Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C.Cir.), cert. denied, ___ U.S. ___, 105 S.Ct. 247, 83 L.Ed.2d 81 (1984) involved a virtually identical fact situation. In Persinger, a former hostage and his parents brought an action against Iran for injuries inflicted in the seizure and detention of American hostages at the United States Embassy in Tehran. One issue before the court was "whether Congress, in enacting the FSIA intended its jurisdiction to give courts in this country competence to hear suits against foreign states for torts committed on United States embassy premises abroad." Id. at 839. Concluding that "a state loses its sovereign immunity for tortious acts only where they occur in the territory of the forum state," the court dismissed the action for lack of jurisdiction. The court found itself persuaded by the language of the statute, its legislative history, and the consequences of adopting a contrary position, that "section 1605(a)(5) was not intended to abrogate the immunity generally enjoyed by a foreign sovereign for tortious acts at embassies within its own territory." Id. at 842.

The court added that the series of unhappy consequences that would follow, if section 1603(c) were read broadly to cover areas in which the United States had jurisdiction, constituted yet another reason for finding the existence of sovereign immunity in this context. These consequences might entail not only serious inconvenience and injustice, but also embarrassment to our foreign relations. Id. at 841. For example,

foreign states might hesitate in providing services to U.S. embassies or consulates, were they to be subject to suit in U.S. courts for negligent acts or omissions on those premises ... if Congress had meant to remove sovereign immunity for governments acting on their own territory, with all the potential for international discord and for foreign government retaliation that that involves, it is hardly likely that Congress would have ignored these topics and discussed instead automobile accidents occurring in this country.

Id.

Similarly, Williams v. Iran, 692 F.2d 151 (D.C.Cir.1982) and Lauterbach v. Iran, 692 F.2d 150 (D.C.Cir.1982), two actions brought by former hostages held in the United States Embassy in Iran, also support the argument set forth in the government's Statement of Interest. In affirming the District Court's dismissal of both of these actions under an applicable executive agreement, the D.C. Circuit Court of Appeals noted that lack of jurisdiction under the FSIA constituted an alternative basis for dismissing the actions. Id. at 837, 838 and n. 3.

The ninth circuit considered the jurisdictional issue in a similar factual context in McKeel v. Islamic Republic of Iran, 722 F.2d 582 (9th Cir.1983), cert. denied, ___ U.S. ___, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984). In McKeel, twelve former hostages and the wives of two ex-hostages sought redress for damages suffered during their Iranian captivity. The hostages were held in the United States embassy for more than fourteen months. In affirming the lower court's dismissal, the ninth circuit held that federal diversity jurisdiction does not extend to suits against a foreign state, and that there was no basis under sections 1331 and 1332 for jurisdiction over Iran. Id. at 585. Turning to the plaintiff's argument under the FSIA, the court held that the United States Embassy of Iran is not "territory of the United States" for purposes of the section 1605(a)(5) waiver of sovereign immunity. Id. at 589.

In a similar factual setting, the wife and children of an American citizen murdered in Iran...