Republic of Iraq v. Beaty

• Decision Date: 08 June 2009
• Docket Number: Nos. 07–1090,08–539.,s. 07–1090
• Citation: 129 S.Ct. 2183,556 U.S. 848,173 L.Ed.2d 1193
• Parties: REPUBLIC OF IRAQ, Petitioner, v. Jordan BEATY et al. Republic of Iraq, et al., Petitioners, v. Robert Simon et al.
• Court: U.S. Supreme Court

556 U.S. 848

129 S.Ct. 2183

173 L.Ed.2d 1193

REPUBLIC OF IRAQ, Petitioner

v.Jordan BEATY et al.

Republic of Iraq, et al., Petitioners

v.Robert Simon et al.

Nos. 07–1090

08–539.

Supreme Court of the United States

Argued April 20, 2009.

Decided June 8, 2009.¹

Jonathan S. Franklin, for petitioners.

Douglas Hallward–Driemeier, for the United States as amicus curiae, by special leave of the Court, supporting the petitioners.

Thomas C. Goldstein, for respondents.

Andrew C. Hall, Hall Lamb and Hall, P.A., Miami, FL, Counsel of Record for the Beaty Respondents, Stephen A. Fennell, Steptoe & Johnson, LLP, Washington, DC, Counsel of Record for the Simon Respondents, Thomas C. Goldstein, Counsel of Record, Akin, Gump, Strauss, Hauer & Feld LLP, Washington, DC, for respondents.

Timothy B. Mills, Maggs & McDermott LLC, Washington, D.C., Jonathan S. Franklin, Counsel of Record, Robert A. Burgoyne, Tillman J. Breckenridge, Fulbright & Jaworski L.L.P., Washington, D.C., for Petitioners.

James Cooper–Hill, Rockport, Texas, Nelson M. Jones III, Houston, Texas, Andrew C. Hall, Counsel of Record, Roarke Maxwell, Hall, Lamb and Hall, P.A., Miami, Florida, for Beaty Respondents.

Opinion

Justice SCALIAdelivered the opinion of the Court.

We consider in these cases whether the Republic of Iraq remains subject to suit in American courts pursuant to the terrorism exception to foreign sovereign immunity, now repealed, that had been codified at 28 U.S.C. § 1605(a)(7).

I

A

Under the venerable principle of foreign sovereign immunity, foreign states are ordinarily “immune from the jurisdiction of the courts of the United States and of the States,”§ 1604.See generallySchooner Exchange v. McFaddon,7 Cranch 116, 3 L.Ed. 287(1812).But the statute embodying that principle—the Foreign Sovereign Immunities Act of 1976 (FSIA),28 U.S.C. § 1602 et seq. —recognizes a number of exceptions; if any of these is applicable, the state is subject to suit, and federal district courts have jurisdiction to adjudicate the claim.§ 1330(a);Verlinden B.V. v. Central Bank of Nigeria,461 U.S. 480, 489, 103 S.Ct. 1962, 76 L.Ed.2d 81(1983).

In 1996, Congress added to the list of statutory exceptions one for state sponsors of terrorism, which was codified at 28 U.S.C. § 1605(a)(7).Subject to limitations not relevant here, that exception stripped immunity in any suit for money damages

“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 ... except that the court shall decline to hear a claim under this paragraph—

“(A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979(50 U.S.C.App. 2405(j) ) or section 620A of the Foreign Assistance Act of 1961(22 U.S.C. 2371 ) at the time the act occurred....”

In brief, § 1605(a)(7) stripped immunity from a foreign state for claims arising from particular acts, if those acts were taken at a time when the state was designated as a sponsor of terrorism.

B

In September 1990, Acting Secretary of State Lawrence Eagleburger formally designated Iraq, pursuant to § 6(j) of the Export Administration Act of 1979, as redesignated and amended, 99 Stat. 135,50 U.S.C.App. § 2405(j), as “a country which has repeatedly provided support for acts of international terrorism,”55 Fed.Reg. 37793.Over a decade later, in March 2003, the United States and a coalition of allies initiated military action against that country.In a matter of weeks, the regime of Iraqi dictator Saddam Hussein collapsed and coalition forces occupied Baghdad.American attention soon shifted from combat operations to the longer term project of rebuilding Iraq, with the ultimate goal of creating a stable ally in the region.

Toward that end, Congress enacted in April 2003 the Emergency Wartime Supplemental Appropriations Act (EWSAA), 117 Stat. 559.Section 1503 of that Act authorized the President to “make inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism.”Id., at 579.President George W. Bush exercised that authority to its fullest extent in May 2003, declaring “inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 ... and any other provision of law that applies to countries that have supported terrorism.”68 Fed.Reg. 26459.

Shortly thereafter, the United States Court of Appeals for the District of Columbia Circuit had occasion to consider whether that Presidential action had the effect of rendering inapplicable to Iraq the terrorism exception to foreign sovereign immunity.The Court concluded in a divided panel decision that the President's EWSAA authority did not permit him to waive § 1605(a)(7), and thereby restore sovereign immunity to Iraq, for claims arising from acts it had taken while designated as a sponsor of terror.Acree v. Republic of Iraq,370 F.3d 41, 48(2004).Because Iraq succeeded in having the claims against it dismissed on other grounds, id., at 59–60, it could not seek certiorari to challenge the D.C. Circuit's interpretation of the EWSAA.

C

There is yet another legislative enactment, and yet another corresponding executive waiver, that bear on the question presented.The National Defense Authorization Act for Fiscal Year 2008(NDAA), 122 Stat. 3, was passed in January 2008.That Act(1) repealed the FSIA's terrorism exception, § 1083(b)(1)(A)(iii);(2) replaced it with a new, roughly similar exception, § 1083(a);(3) declared that nothing in § 1503 of the EWSAA had “ever authorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States”(thus purporting to ratify the Court of Appeals' Acree decision), § 1083(c)(4),122 Stat. 343; and (4) authorized the President to waive “any provision of this section with respect to Iraq” so long as he made certain findings and so notified Congress within 30 days, § 1083(d), id., at 343–344.

The last provision was added to the NDAA after the President vetoed an earlier version of the bill, which did not include the waiver authority.The President's veto message said that the bill“would imperil billions of dollars of Iraqi assets at a crucial juncture in that nation's reconstruction efforts.”Memorandum to the House of Representatives Returning Without Approval the “National Defense Authorization Act for Fiscal Year 2008,”43 WeeklyComp. of Pres. Doc. 1641(2007).Only when Congress added the waiver authority to the NDAA did the President agree to approve it; and on the same day he signed it into law he also officially waived “all provisions of section 1083 of the Act with respect to Iraq,”73 Fed.Reg. 6571(2008).

II

We consider today two cases that have been navigating their way through the lower courts against the backdrop of the above-described congressional, military, Presidential, and judicial actions.Respondents in the Simon case are American nationals (and relatives of those nationals) who allege that they were captured and cruelly mistreated by Iraqi officials during the 1991 Gulf War.The Beaty respondents are the children of two other Americans, Kenneth Beaty and William Barloon, who are alleged to have been similarly abused by the regime of Saddam Hussein in the aftermath of that war.Each set of respondents filed suit in early 2003 against Iraq in the United States District Court for the District of Columbia, alleging violations of local, federal, and international law.

Respondents invoked the terrorism exception to foreign sovereign immunity, and given Acree 's holding that the President had not rendered that statutory provision inapplicable to Iraq, the District Court refused to dismiss either case on jurisdictional grounds.In Beaty , after the District Court denied Iraq's motion to dismiss, 480 F.Supp.2d 60, 70(2007), Iraq invoked the collateral order doctrine to support an interlocutory appeal.SeeMitchell v. Forsyth,472 U.S. 511, 524–529, 105 S.Ct. 2806, 86 L.Ed.2d 411(1985).In Simon,the District Court determined that the claims were time barred and dismissed on that alternative basis, Vine v. Republic of Iraq,459 F.Supp.2d 10, 25(2006), after which the Simonrespondents appealed.

In the Beaty appeal, Iraq (supported by the United States as amicus ) requested that the Court of Appeals for the District of Columbia Circuit reconsider Acree 's holding en banc.The Court denied that request over the dissent of Judges Brown and Kavanaugh, and a panel then summarily affirmed in an unpublished order the District Court's denial of Iraq's motion to dismiss.No. 07–7057(Nov. 21, 2007)(per curiam), App. to Pet. for Cert. 1a–2a.

While the Simon appeal was still pending, Congress enacted the NDAA, and the Court of Appeals requested supplemental briefing addressing the impact of that legislation on the court's jurisdiction.Iraq contended, as an alternative argument to its position that Acree was wrongly decided, that even if 28 U.S.C. § 1605(a)(7)'s application to Iraq survived the President's EWSAA waiver, the provision was repealed by § 1083(b)(1)(A)(iii) of the NDAA, 122 Stat. 341; and that the new terrorism exception to sovereign immunity—which was created by the NDAA and codified at 28 U.S.C. § 1605A (2006 ed., Supp. III) —was waived by the President with respect to Iraq pursuant to his NDAA authority.

The Court of Appeals rejected that argument, holding instead, based on a close reading of the statutory text, that “the NDAA leaves intact our jurisdiction over cases ... that were pending against Iraq when the Congress enacted the NDAA.”529 F.3d 1187, 1194(2008).The panel then reversed the District Court's determination that the Simonrespondents' claims were untimely, id., at 1195–1196, and rebuffed...