Price v. Socialist People's Libyan Arab Jamahiriya

• Decision Date: 21 July 2003
• Docket Number: No. CIV.A.97-975 RCL.,CIV.A.97-975 RCL.
• Citation: 274 F.Supp.2d 20
• Parties: Michael H. PRICE and Roger K. Frey, Plaintiffs, v. The SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, Defendant.
• Court: U.S. District Court — District of Columbia

Page 20

274 F.Supp.2d 20

Michael H. PRICE and Roger K. Frey, Plaintiffs, v. The SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, Defendant.

No. CIV.A.97-975 RCL.

United States District Court, District of Columbia.

July 21, 2003.

Andrew C. Hall, Miami, FL, Nelson M. Jones, III, Nicholas & Jones, Houston, TX, James Cooper — Hill, Rockport, TX, for Plaintiffs.

Bruno Alexander Ristau, Law Offices of Bruno A. Ristau, PLLC, Arman Dabiri Abkenari, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

LAMBERTH, District Judge.

This matter comes before the Court on defendant's motion to dismiss [42-1] and plaintiffs' motion for summary judgment [43-1]. Upon consideration of the parties' motions, the opposition and reply briefs, and the applicable law in this case, the Court finds that defendant's motion to dismiss should be granted in part and denied in part, and that plaintiffs' motion for summary judgment should be denied.

I. PROCEDURAL HISTORY

On May 7, 1997, plaintiffs commenced the present action, asserting claims arising under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602-1611 et seq. ("FSIA"), for hostage-taking and torture. Defendant filed a motion to dismiss, asserting that this Court lacked both subject matter jurisdiction and personal jurisdiction, and that plaintiffs had failed to state a claim on which relief could be granted. On August 24, 2000, this Court denied defendant's motion. Price v. Socialist People's Libyan Arab Jamahiriya, 110 F.Supp.2d 10 (D.D.C.2000) ("Price I"). Defendant appealed this Court's decision to the D.C. Circuit.

On June 28, 2002, the D.C. Circuit issued its opinion. Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82 (D.C.Cir.2002) ("Price II"). The opinion included four principal rulings. First, the D.C. Circuit noted that because the issue of whether plaintiffs had stated a valid cause of action under the FSIA against a foreign state had neither been raised in this Court nor briefed on appeal, it would make no decision as to that issue. Id. at 87. Second, it concluded that plaintiffs' complaint had failed to state a proper claim for torture under the FSIA, and remanded to this Court to permit plaintiffs to amend their complaint to satisfy this defect. Id. at 94. Third, it dismissed plaintiffs' hostage-taking claim, explaining that "[O]der no reasonable reading of the plaintiffs' complaint does their admittedly unpleasant imprisonment qualify as hostage taking so defined." Id. Fourth, it affirmed this Court's determination that it possessed personal jurisdiction over defendant. Id. at 99 ("[W]e hold that the Fifth Amendment poses no obstacle to the decision of the United States government to subject Libya to personal jurisdiction in the federal courts."). The D.C. Circuit remanded to this Court for proceedings consistent with its opinion. Id. at 100.

On April 10, 2003, this Court granted plaintiffs' motion to file an amended complaint in the present action. Defendant filed a motion to dismiss the amended complaint on May 12. Plaintiffs filed their brief in opposition on June 5, and defendant filed its reply brief on June 11. On May 13, plaintiffs submitted a motion for summary judgment. Defendant filed its brief in response on May 15. The Court held a hearing on all pending motions on July 11, 2003, during which it heard oral arguments on defendant's motion to dismiss and plaintiffs' motion for summary judgment.

II. LEGAL ANALYSIS

A. Defendant's Motion to Dismiss

Defendant has moved to dismiss the present action on three separate grounds. Defendant first states that plaintiffs' cause of action based on hostage-taking may not be considered by this Court on remand in light of the D.C. Circuit's decision in Price II. Second, defendant alleges that plaintiffs' cause of action based on torture must be dismissed for lack of subject matter jurisdiction. Third, and in the alternative, defendant asserts that plaintiffs' torture claim must be dismissed for failure to state a claim on which relief may be granted. The Court will examine each point in turn.

1. Hostage-Taking

As noted above, the D.C. Circuit reversed this Court's denial of defendant's motion to dismiss as to the hostage-taking claim asserted by plaintiffs. Its explanation of this reversal warrants quotation at some length:

In this case, the complaint asserts only that Libya incarcerated Price and Frey "for the purpose of demonstrating Defendant's support of the government of Iran which held hostages in the U.S. Embassy in Tehran, Iran." Compl., at ¶ 7. Such motivation does not satisfy the ... intentionality requirement [of the International Convention Against the Taking of Hostages, 28 U.S.C. § 1605(e)(2)]. The definition speaks in terms of conditions of release; the defendant must have detained the victim in order to compel some particular result, specifically to force a third party either to perform an act otherwise unplanned or to abstain from one otherwise contemplated so as to ensure the freedom of the detainee. Accordingly, detention for the goal of expressing support for illegal behavior — even for behavior that would itself qualify as "hostage taking" — does not constitute the taking of hostages within the meaning of the FSIA.

In this case, the plaintiffs have suggested no demand for quid pro quo terms between the government of Libya and a third party whereby Price and Frey would have been released upon the performance or non-performance of any action by that third party. Indeed, even when read most favorably to them, their complaint points to no nexus between what happened to them in Libya and any concrete concession that Libya may have hoped to extract from the outside world. The one purpose that plaintiffs have alleged is plainly inadequate, and they have advanced no others. Their allegation thus falls short of the standard for hostage taking under § 1605(a)(7).

For these reasons, Libya cannot be stripped of its sovereign immunity based on plaintiffs' allegation of hostage taking. The District Court thus erred in refusing to dismiss this count. Accordingly, we reverse on this point.

Price II, 294 F.3d at 94-95.

However, plaintiffs' amended complaint includes a claim for hostage-taking under the FSIA. In its opposition brief to defendant's motion to dismiss, plaintiffs assert that the D.C. Circuit remanded, rather than reversed, as to their hostagetaking claim, allowing plaintiffs on remand to amend their complaint to state a valid claim of hostage-taking. The sole support proffered for this interpretation of the D.C. Circuit's mandate consists of dicta in a later case, Simpson v. Socialist People's Libyan Arab Jamahiriya, 326 F.3d 230, 235 (D.C.Cir.2003). It does appear that in Simpson, the D.C. Circuit mistakenly indicated that in Price II, it had vacated, not reversed, this Court's denial of defendant's dismissal motion as to the hostage-taking count. But the Circuit's faulty dicta in a later case does not trump the clear holding in the present case. It is manifest that in Price II, the D.C. Circuit dismissed plaintiffs' hostage-taking claim. The principle of res judicata thus mandates that this Court dismiss plaintiffs' amended complaint to the extent that it asserts claims against defendant based on hostage-taking.

2. Subject Matter Jurisdiction

In Price II, the D.C. Circuit explained that when a cause of action based on torture is brought against a foreign state pursuant to the 1996 amendments to FSIA, "it is especially important for the courts to ensure that foreign states are not stripped of their sovereign immunity unless they have been charged with actual torture, and not mere police brutality." Price II, 294 F.3d at 93. As noted above, it concluded that plaintiffs' complaint lacked the specificity necessary to establish a claim against defendant based on torture, and remanded to this Court to permit plaintiffs to amend their complaint. Id. at 94.

The D.C. Circuit noted that "[p]laintiffs must allege more than that they were abused. They must demonstrate in their pleadings that Libya's conduct rose to such a level of depravity and caused them such intense pain and suffering as to be properly classified as torture." Id. It observed that the FSIA's definition of "torture" was derived from the definition of that term in the Torture Victim Protection Act of 1991:

any act, directed against an individual in the offender's custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind.

28 U.S.C. § 1350 (note). The D.C. Circuit provided an additional gloss on the terms "severe" and "for such purposes" in this definition. It explicated the word "severe" by noting that

[t]he critical issue is the degree of pain and suffering that the alleged torturer intended to, and actually did, inflict upon the victim. The more intense, lasting, or heinous the agony, the more likely it is to be torture. See S. EXEC. REP. NO. 101-30, at 15 ("The United States understands that, in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering.") (internal quotation marks omitted). This understanding thus makes clear that torture does not automatically result whenever individuals in official custody are subjected even to direct physical assault. Not all police brutality, not every instance of excessive force used against prisoners, is...