Simpson v. Socialist People's Libyan Arab

• Decision Date: 21 November 2006
• Docket Number: No. 05-7048.,05-7048.
• Parties: Sandra Jean SIMPSON, Individually and as Personal Representative of the Estate of Dr. Mostafa Fahmy Karim, Deceased, Appellee v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 356

470 F.3d 356

Sandra Jean SIMPSON, Individually and as Personal Representative of the Estate of Dr. Mostafa Fahmy Karim, Deceased, Appellee v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, Appellant.

No. 05-7048.

United States Court of Appeals, District of Columbia Circuit.

Argued September 18, 2006.

Decided November 21, 2006.

Appeal from the United States District Court for the District of Columbia (No. 00cv01722).

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

Eric C. Sorenson argued the cause and filed the brief for appellee.

Before: ROGERS and GARLAND, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

This appeal follows our remand to afford the plaintiffs an opportunity to amend their complaint to state a cause of action for hostage taking under the 1996 Terrorism Amendment to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(7). Simpson v. Socialist People's Libyan Arab Jamahiriya, 326 F.3d 230 (D.C.Cir.2003) ("Simpson I"). Libya contends that the district court lacks subject matter jurisdiction and makes both legal and evidentiary challenges to the amended complaint. We hold that because the FSIA definition of hostage taking, 28 U.S.C. § 1605(e)(2), focuses on the state of mind of the hostage taker, a plaintiff need not show that the hostage taker communicated a demand reflecting the hostage taker's intended purpose to a third party. We assume here that a plaintiff asserting an exception to sovereign immunity under FSIA has a burden of production to support its allegations of hostage taking, and further hold that the plaintiffs met their burden and, conversely, that Libya has failed to meet its burden of persuasion. Libya offers no evidence of its own and points to nothing in the plaintiffs' evidence that is inconsistent with the allegations in the amended complaint about Libya's possible intended purposes for the detention. Accordingly, we affirm the order denying Libya's motion to dismiss the amended complaint on sovereign immunity grounds.

I.

In February 1987, Sandra Jean Simpson, a United States citizen, and her husband, Dr. Mostafa Karim, a permanent resident of the United States who was born in Egypt, were aboard the Carin II, a private yacht, cruising in the Mediterranean Sea on a course from Italy to Greece, when an unexpected storm forced the boat to veer off course and send a radio distress signal. Libyan harbor authorities responded to the signal on February 10, 1987, offering the port of Benghazi as a safe harbor. According to the amended complaint, on February 14, 1987, while the boat was in port, Libyan authorities boarded the boat and removed the passengers and crew. The Libyans held the Carin II party captive and threatened to shoot them if they attempted to leave. Three months into the captivity, Libyan authorities forcibly separated Ms. Simpson and Dr. Karim, permitting Ms. Simpson to fly to Zurich and placing her husband in solitary confinement, in unsanitary conditions without adequate medical care or proper food, for a period of seven months. Dr. Karim was released from captivity in November 1987, after intense negotiations among Belgium, Egypt, and Libya; he died of cancer in 1993.

Ms. Simpson and her husband's estate sued Libya, alleging torture, hostage-taking, battery, false imprisonment, intentional infliction of emotional distress, and loss of consortium, and seeking compensatory damages. Libya moved to dismiss the complaint for: (1) lack of subject-matter jurisdiction, on the ground that Ms. Simpson's offer to arbitrate did not satisfy FSIA's jurisdictional requirements; (2) lack of personal jurisdiction; and (3) failure to state a claim for torture and hostage taking. The district court denied the motion. See Simpson v. Socialist People's Libyan Arab Jamahiriya, 180 F.Supp.2d 78, 89 (D.D.C.2001). On appeal, this court held that Ms. Simpson's offer to arbitrate satisfied the jurisdictional requirements of FSIA, see 28 U.S.C. § 1605(a)(7)(B)(I), but reversed as to the torture claim for insufficient allegations of severity, citing Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 91-93 (D.C.Cir.2002) ("Price I"), and vacated and remanded on the hostage-taking claim so that the plaintiffs could amend the complaint to allege facts supporting the proposition that Libya intended to compel action or inaction by a third party as a condition of releasing Ms. Simpson and Dr. Karim. Simpson I, 326 F.3d at 233-35.

In response, the plaintiffs filed an amended complaint which alleged three likely motives Libya might have had for abducting Ms. Simpson and Dr. Karim. The amended complaint stated that, in exchange for releasing them, Libya may have wanted: (1) the United States to stop conducting air raids against Libya; (2) revenge for previous U.S. air attacks; and (3) Egypt to return military assets to Libya. It also referenced Libya's pattern of terrorist activity. The amended complaint cited newspaper articles, Libya's history of taking and releasing hostages, and a 1997 Department of Defense intelligence report.

Upon Libya's renewed motion to dismiss for lack of subject-matter jurisdiction, personal jurisdiction, and for failure to state a claim, pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2) and 12(b)(6), the district court ordered the plaintiffs to provide support for their jurisdictional claim. The plaintiffs submitted additional materials, including an expert opinion and the State Department's Patterns of Global Terrorism, to show that prior and similar acts demonstrated that Libya intended to hold Ms. Simpson and Dr. Karim to trade them for Libyan defectors and military equipment held in Egypt, and/or as human shields against another United States air attack on Libya. Libya submitted no materials of its own in response, and the district court denied the motion to dismiss. The district court found that the plaintiffs had produced sufficient evidence of a quid pro quo to support two theories, regarding use of Ms. Simpson and Dr. Karim as human shields and use of Dr. Karim to obtain the return of Libyan defectors and material lost to Egypt, but not as regards Libya's alleged pursuit of retributive justice as that entailed no form of exchange with a third party. Simpson v. Socialist People's Libyan Arab Jamahiriya, 362 F.Supp.2d 168, 178-80 (D.D.C.2005).

II.

On appeal, Libya challenges the legal and evidentiary basis of the hostage taking claim on the ground that the plaintiffs failed to show the essential "intended purpose." Simpson I, 326 F.3d at 235 (citing Price I, 294 F.3d at 94). The court has jurisdiction of this interlocutory appeal pursuant to 28 U.S.C. § 1291 and the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C.Cir.2004) (citations omitted). We review the denial of the motion to dismiss for the legal and factual sufficiency of the plaintiffs' claims de novo. See id. at 1127 (citing Price I, 294 F.3d at 91).

Congress amended the FSIA in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1241-42 (Apr. 24, 1996), adding the so-called "terrorism exception," which denies sovereign immunity in any case "in which money damages are sought against a foreign state for personal injury or death that was caused by an act of ... hostage taking ...." 28 U.S.C. § 1605(a)(7). Section 1605(e)(2) defines "hostage taking" as that term is used in Article I of the International Convention Against the Taking of Hostages ("ICATH" or "Convention"). See 28 U.S.C. § 1605(e)(2). As the court recognized in Simpson I,

`[h]ostage taking' occurs under ICATH (and so under FSIA) when a person `seizes or detains and threatens to kill, to injure or to continue to detain another person in order to compel a third party ... to do or abstain from doing any act as an explicit or implicit condition for the release of a hostage.'

326 F.3d at 234 (quoting Article I, ICATH, U.N. GAOR, Supp. No. 39, U.N. Doc. A/34/39 (1979)). "The essential element of the hostage-taking claim is that the intended purpose of the detention be to accomplish the sort of third-party compulsion described in the [C]onvention." Id. at 234-35 (citing Price I, 294 F.3d at 94). There must be some "quid pro quo" arrangement whereby the hostage would have been released "upon performance or non-performance of any action by that third party." Price I, 294 F.3d at 94.

The hostage-taking exception applies only if three additional criteria are also satisfied: [(1)] the foreign state was designated a "state sponsor of terrorism" at the time the act occurred; [(2)] the foreign state was given a reasonable opportunity to arbitrate a claim regarding an act that occurred within the state's borders; and [(3)] the claimant or victim was a national of the United States. 28 U.S.C. § 1605(a)(7)(A), (B). These three criteria are satisfied here, and thus the only question is whether the plaintiffs' claims fall within the main body of the exception. Kilburn, 376 F.3d at 1127. Libya bears the burden of "proving that the plaintiffs' allegations do not bring its case within a statutory exception to immunity." Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C.Cir.2000).

A.

The legal question raised by Libya is whether third-party awareness of a hostage-taker's intent is a required element of the hostage-taking exception that must be pled as a jurisdictional fact and supported by evidence. Libya contends that the plaintiffs can show intended purpose only where there is "a minimum showing that the third party is at least aware of the possibility that there is a hostage." Appellant's Br. at 15. Libya's contention, however, is wholly unsupported by our case law and the...