Price v. Socialist People's Libyan Arab Jamahiriya, 00-7244.

Citation294 F.3d 82
Decision Date28 June 2002
Docket NumberNo. 00-7244.,00-7244.
PartiesMichael H. PRICE and Roger K. Frey, Appellees, v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 97cv00975).

Arman Dabiri argued the cause and filed the briefs for appellant.

James Cooper-Hill argued the cause for appellees. With him on the brief were Andrew C. Hall and Nelson M. Jones III.

Michael L. Martinez argued the cause for amicus curiae Blake Kilburn on his behalf and as administrator of the estate of Peter Kilburn. With him on the brief was Stuart H. Newberger.

Before: EDWARDS and SENTELLE, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case involves a lawsuit brought under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602-1611 (1999), by two American citizens who sued the Socialist People's Libyan Arab Jamahiriya ("Libya") for torture and hostage taking. Plaintiffs' lawsuit seeks cover under a recent amendment to the FSIA which strips certain foreign states — including Libya — of their sovereign immunity in American courts when they engage in such conduct. See 28 U.S.C. § 1605(a)(7).

In response to plaintiffs' suit, Libya moved to dismiss, claiming sovereign immunity and a lack of personal jurisdiction. The District Court denied the motion to dismiss and Libya now seeks review in this interlocutory appeal. Two central questions have been raised on appeal: first, whether plaintiffs have alleged facts that are legally sufficient to revoke Libya's immunity under the FSIA; and, second, whether the assertion of personal jurisdiction over Libya in the manner specifically authorized by the FSIA violates the Due Process Clause.

We hold, first, that plaintiffs have failed to state a claim for hostage taking adequate to abrogate sovereign immunity and establish subject matter jurisdiction. The allegations set forth in the complaint do not come close to satisfying the definition of "hostage taking" prescribed by the FSIA. We hold further that the allegations supporting plaintiffs' torture claim are not adequate to bring the case within the statutory exceptions to foreign sovereign immunity. The complaint in its present form is simply too conclusory to satisfy § 1605(a)(7). In contrast to the hostage-taking claim, however, plaintiffs have at least intimated that they can allege facts that might state a proper claim for torture under the FSIA. Accordingly, we will remand the case to allow plaintiffs to attempt to amend their complaint in an effort to satisfy the statute's rigorous definition of torture. As a word of caution, we note that there is a question as to whether the complaint states a claim for relief upon which plaintiffs can recover; although this matter is not properly before us on interlocutory review, we are not foreclosing review of the issue in the District Court.

Finally, we hold that Libya, as a foreign state, is not a "person" within the meaning of the Due Process Clause. We therefore conclude that the Constitution imposes no limitation on the exercise of personal jurisdiction by the federal courts over Libya.


The facts and procedural history of this case are relatively straightforward. Plaintiffs Michael Price and Roger Frey, Americans who had been living in Libya in the employ of a Libyan company, were arrested in March of 1980 after taking pictures of various places in and around Tripoli. Libyan government officials apparently believed that these photographs constituted anti-revolutionary propaganda, because they would portray unfavorable images of life in Libya.

Price and Frey allege that, following their arrest, they were denied bail and kept in a "political prison" for 105 days pending the outcome of their trial. In their complaint, plaintiffs assert that they endured deplorable conditions while incarcerated, including urine-soaked mattresses, a cramped cell with substandard plumbing that they were forced to share with seven other inmates, a lack of medical care, and inadequate food. The complaint also asserts that the plaintiffs were "kicked, clubbed and beaten" by prison guards, and "interrogated and subjected to physical, mental and verbal abuse." Compl. at ¶ 4. The complaint contends that this incarceration was "for the purpose of demonstrating Defendant's support of the government of Iran which held hostages in the U.S. Embassy in Tehran, Iran." Id. at ¶ 7.

Ultimately, plaintiffs were tried and acquitted of the crimes with which they had been charged. After the verdict was announced, however, the Libyan government retained their passports for another 60 days while the prosecution pursued an appeal, which is permitted under the Libyan Code of Criminal Procedure. When this appeal was eventually rejected, plaintiffs were permitted to leave Libya.

On May 7, 1997, Price and Frey commenced a civil action against Libya in federal court. Their complaint asserted claims for hostage taking and torture and sought $20 million in damages for each man. Following receipt of process, Libya filed a motion to dismiss, arguing that (1) the grant of subject matter jurisdiction over plaintiffs' action was unconstitutional, (2) the court's exercise of personal jurisdiction was unconstitutional, and (3) plaintiffs had failed to state a claim on which relief could be granted. The District Court rejected each of these arguments, thus vitiating Libya's sovereign immunity defense and allowing the court to assert both subject matter jurisdiction over plaintiffs' claims and personal jurisdiction over the defendant. Libya now pursues an interlocutory appeal.


On appeal, Libya has not renewed its constitutional attack on the court's subject matter jurisdiction. Instead, it claims that the District Court erred in not resolving certain disputed issues of fact, proceeding instead as if plaintiffs' factual allegations had already been established. Libya also argues that, even assuming that these facts were true, the plaintiffs have failed to make out a valid claim either for torture or hostage taking under the FSIA. Finally, Libya asserts that the Due Process Clause does not permit an American court to take jurisdiction over a foreign sovereign based on conduct that has no connection to the United States save for the nationality of the plaintiff.

A. Plaintiffs' Cause of Action

Before we address the issues arising under the FSIA and the Due Process Clause, we first want to make it clear that our decision today does not address or decide whether the plaintiffs have stated a cause of action against Libya. The parties appear to assume that a substantive claim against Libya arises under the FSIA, but this is far from clear. The FSIA is undoubtedly a jurisdictional statute which, in specified cases, eliminates foreign sovereign immunity and opens the door to subject matter jurisdiction in the federal courts. See First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 620, 103 S.Ct. 2591, 2596-97, 77 L.Ed.2d 46 (1983). There is a question, however, whether the FSIA creates a federal cause of action for torture and hostage taking against foreign states. See Roeder v. Islamic Republic of Iran, 195 F.Supp.2d 140, 171-73 (D.D.C.2002).

The "Flatow Amendment" to the FSIA confers a right of action for torture and hostage taking against an "official, employee, or agent of a foreign state," Pub. L. No. 104-208, Div. A, Title I, § 101(c) (Sept. 30, 1996), codified at 28 U.S.C. § 1605 (note); see Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 12-13 (D.D.C.1998), but the amendment does not list "foreign states" among the parties against whom such an action may be brought. While it is possible that such an action could be brought under the "international terrorism" statute, 18 U.S.C. § 2333(a), cf. Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th Cir.2002), no such claim has been raised in this case.

The question relating to plaintiffs' cause of action has yet to be raised or addressed in the District Court, and it was neither briefed nor argued by the parties during this appeal. Therefore, although we flag the issue, we will leave its disposition to the District Court in the first instance following remand of this case. We will turn our attention now to the matters before us, i.e., the issues arising under the FSIA and the Due Process Clause.

B. The 1996 Amendments to the Foreign Sovereign Immunities Act

The FSIA provides a basis for asserting jurisdiction over foreign nations in the United States. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 693, 102 L.Ed.2d 818 (1989). The statute, which was originally enacted in 1976, confers immunity on foreign states in all cases that do not fall into one of its specifically enumerated exceptions. See 28 U.S.C. §§ 1605, 1607; McKesson HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101, 1105 (D.C.Cir. 2001). These exceptions were crafted in order to codify the "restrictive theory" of sovereign immunity, under which immunity is generally limited to a foreign state's public or governmental acts (jure imperii) but withheld from its private or commercial acts (jure gestionis). See H.R. REP. No. 94-1487, at 7 (1976); Jackson v. People's Republic of China, 794 F.2d 1490, 1493 (11th Cir.1986).

The FSIA thus begins with a presumption of foreign sovereign immunity, 28 U.S.C. § 1604, qualified by a list of specific circumstances in which that immunity is unavailable. These include cases in which the state has waived its immunity, id. at § 1605(a)(1), cases based upon various forms of commercial activity, id. at § 1605(a)(2), takings of property in violation of international law, id. ...

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