Persinger v. Islamic Republic of Iran, 81-2003

• Citation: 729 F.2d 835,234 U.S. App. D.C. 349
• Decision Date: 13 March 1984
• Docket Number: No. 81-2003,81-2003
• Parties: Gregory Allen PERSINGER, et al., Appellants v. ISLAMIC REPUBLIC OF IRAN, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 835

729 F.2d 835

234 U.S.App.D.C. 349

Gregory Allen PERSINGER, et al., Appellants v. ISLAMIC REPUBLIC OF IRAN, et al.

No. 81-2003.

United States Court of Appeals,

District of Columbia Circuit.

Argued May 19, 1983.

Decided March 13, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-00230).

Michael F. Hertz, Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty. (at the time the brief was filed), Robert E. Kopp, Atty., Dept. of Justice, and Jonathan B. Schwartz, Atty. Dept. of State, Washington, D.C., were on the brief for appellee, U.S. Theodore C. Hirt, Atty. Dept. of Justice, Washington, D.C., also entered an appearance for U.S.

Brice M. Clagett, Washington, D.C., with whom Paul G. Gaston and Harold Hongju Koh, Washington, D.C., were on the brief for amicus curiae, FLAG, Inc., opposing modification of original opinion.

Peter J. Neeson, Philadelphia, Pa., of the Bar of the Supreme Court of Pa., pro hac vice, by special leave of the Court, with whom Mark H. Tuohey, III, Washington, D.C., Julian N. Evle, Philadelphia, Pa., were on the brief, for appellants.

Thomas G. Shack, Jr. and Thomas D. Silverstein, Washington, D.C., entered appearances for appellee, Islamic Republic of Iran.

Before EDWARDS and BORK, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BORK.

Opinion dissenting in part and concurring in part filed by Circuit Judge HARRY T. EDWARDS.

BORK, Circuit Judge:

This is an action for damages against the Islamic Republic of Iran for injuries inflicted by the seizure and detention of American hostages. Appellants, plaintiffs below, are a former hostage and his parents. On October 8, 1982, we issued an opinion affirming the district court's dismissal of appellants' claims. There, we held the defense of sovereign immunity inapplicable but decided that appellants had failed to state a claim upon which relief could be granted. Specifically, we held that the executive order signed by President Carter, pursuant to an agreement with Iran to secure the release of the hostages, lawfully and effectively extinguished appellants' claims against Iran.

Though the United States, which had intervened as a party-defendant in order to meet its obligations under the executive agreement with Iran, see American International Group, Inc. v. Islamic Republic of Iran, 657 F.2d 430, 433 (D.C.Cir.1981), prevailed, the government was sufficiently concerned about our ruling on the question of sovereign immunity to petition the panel for rehearing on that issue. We granted the petition, and now affirm the judgment of the district court on that court's alternate ground: Iran enjoys sovereign immunity and that immunity has not been lifted for the acts involved here by the Foreign Sovereign Immunities Act, 28 U.S.C. Secs. 1330, 1602 et seq. (1976) ("FSIA" or "Act"). This conclusion also requires that we vacate our prior opinion.

I.

Gregory Allen Persinger is a United States Marine, who, on November 4, 1979, was stationed at the United States Embassy in Tehran, Iran. On that date, the Embassy was seized by Iranian militants, and the Embassy's personnel, including Sergeant Persinger, were captured and held hostage. This act, which was not merely hostile to the United States but unprecedented in the history of international relations, at once created a crisis between the United States and Iran. The United States tried to secure the release of the hostages through a series of stringent retaliatory measures, but all such efforts failed. ¹

Ultimately, the United States was able to obtain the hostages' freedom only by an executive agreement with Iran that necessarily made concessions to that country. Since diplomatic relations with Iran had been severed, the agreement was embodied in two Declarations of the Government of Algeria, initialed for the United States by Deputy Secretary of State Warren M. Christopher on January 19, 1981. The hostages, including Sergeant Persinger, were released the following day, having been held captive for almost fifteen months. ²

Sergeant Persinger and his parents brought suit in the district court against the Islamic Republic of Iran on February 2, 1981, alleging numerous violations of treaties and of international, constitutional, and common law. The United States moved to dismiss the complaint. After a hearing, District Judge Oberdorfer granted the government's motion. Persinger v. Islamic Republic of Iran, Civ. No. 81-00230 (D.D.C. Aug. 21, 1981). Relying on Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981), the district court held that "the President may dispose of private claims against foreign states to resolve, or avoid, international crises." Persinger v. Islamic Republic of Iran, slip op. at 2. (In Dames & Moore, the Supreme Court upheld the legality of a different executive order issued as part of the effort to carry out the Algerian Declaration.) The district court held, in the alternative, that even in the absence of a valid executive order, Iran would be immune under the Foreign Sovereign Immunities Act from suit for tortious acts in the United States Embassy in Tehran. This appeal followed. ³

II.

A.

In its initial submissions, the government contended that we need not reach the issue of Iran's sovereign immunity--and of this court's jurisdiction--if we decide that President Carter had the power lawfully to extinguish the Persingers' claims. Brief for the United States at 22. We disagree. The Act expressly deprives a court of jurisdiction over any party entitled to sovereign immunity. 28 U.S.C. Sec. 1604 (1976) ("[A] foreign state shall be immune from the jurisdiction of the courts of the United States ....") (emphasis added); see Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 306-07 (2d Cir.1981), cert. denied, 454 U.S. 1148, 102 S.Ct. 1012, 71 L.Ed.2d 301 (1982); cf. Tuck v. Pan American Health Organization, 668 F.2d 547, 549 (D.C.Cir.1981) (immunity issue must be addressed before merits). Since we decide that in this case Iran is not subject to this court's jurisdiction, it would be improper for us to reach the question of the President's authority over these claims. ⁴ To exceed the jurisdictional limits of a court's power is to exercise authority illegitimately, Insurance Corp. of Ireland, Ltd. v. Campagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982). For that reason we decide jurisdiction first, and our conclusion that jurisdiction is absent means that we cannot let our prior opinion on the merits stand.

Foreign states are generally immune from the jurisdiction of federal and state courts. 28 U.S.C. Sec. 1604. See The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136, 3 L.Ed. 287 (1812). The FSIA, however, creates a number of exceptions to this immunity. 28 U.S.C. Sec. 1605. One exception provides that:

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case--

....

(5) ... 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 act 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; ....

28 U.S.C. Sec. 1605(a)(5). The "United States" is defined to include "all territory and waters, continental or insular, subject to the jurisdiction of the United States." 28 U.S.C. Sec. 1603(c) (emphasis added). Thus, if a foreign state's "act[s] or omission[s]" cause tortious injury within the United States, as defined in section 1603(c), the foreign state's immunity is abrogated, subject to the exceptions set out in section 1605(a)(5), and there can be both subject matter and personal jurisdiction in United States courts. 28 U.S.C. Sec. 1330(a), (b).

That Congress has the power to exercise jurisdiction over certain activities at U.S. embassies abroad is not disputed. Agee v. Muskie, 629 F.2d 80, 111 (D.C.Cir.) (MacKinnon, J., dissenting) (United States embassy is under concurrent jurisdiction of United States criminal laws), rev'd on other grounds sub nom. Haig v. Agee, 453 U.S. 280, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1980); see also Brief for the United States at 22-23. ⁵ The issue before this court, then, is whether Congress, in enacting the FSIA, intended to exercise its jurisdiction to give courts in this country competence to hear suits against foreign states for torts committed on United States embassy premises abroad. That issue turns upon the question whether United States embassies are within the definition of "United States" set forth in section 1603(c). The government contends that the FSIA was intended to abrogate sovereign immunity only for torts within the exclusive territorial jurisdiction of the United States. ⁶ It is contended, on the other side, that since embassies are "substantially removed from the jurisdiction of the receiving state," Brief of Amicus Curiae FLAG, Inc. on Rehearing at 7, ⁷ and are subject to the concurrent jurisdiction of both sending and receiving states, Iran is not shielded by sovereign immunity from liability for torts at the United States Embassy in Tehran, Iran. Id. We are persuaded by the language of the statute, its legislative history, and by the consequences of adopting a contrary position that section 1605(a)(5) does not remove Iran's immunity here.

In section 1603(c), Congress used the words "continental or insular" to modify the scope of the phrase "all territory and waters ... subject to the jurisdiction of the United States." The latter phrase, if it stood alone, might lead to the conclusion that any territory over which the United States exercises any form of jurisdiction constitutes the ...