Simpson v. Socialist People's Libyan Arab

• Decision Date: 22 April 2003
• Docket Number: No. 01-7191.,01-7191.
• Parties: Sandra Jean SIMPSON, Appellee, v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

326 F.3d 230 Sandra Jean SIMPSON, Appellee,
v.
SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, Appellant. No. 01-7191. United States Court of Appeals, District of Columbia Circuit. Argued November 19, 2002. Decided April 22, 2003.

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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: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Sandra Jean Simpson ("appellee" or "Simpson") sued the Socialist People's Libyan Arab Jamahiriya ("appellant" or "Libya") alleging claims for hostage taking and torture. After entering default judgment in favor of appellee, the District Court, on motion of appellant, reopened the case and permitted Libya to file motions to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim for relief. The court denied the motions to dismiss. Libya brought the instant interlocutory appeal under the collateral order doctrine. For the reasons more fully set out below, we reverse as to the torture claim and remand for dismissal; as to the hostage-taking claim, we vacate and remand to permit Simpson to attempt to cure the deficiency of her complaint by amendment.

I

Simpson's complaint alleges the following facts: On February 7, 1987, Simpson, a United States citizen, and her husband, then a permanent resident of the United States, were passengers on the Carin II, a cruise ship, cruising through the Mediterranean, when a severe storm interrupted the cruise. The Carin II was seriously damaged in the storm. On February 10, 1987, Libyan harbor authorities in Benghazi, Libya notified the Carin II that it could use the Port of Benghazi as a safe harbor. Subsequently, a Libyan harbor boat escorted the Carin II into port.

On February 14, 1987, Libyan authorities boarded the Carin II and "forcibly removed" the passengers and crew. Libya held Simpson and her husband captive and threatened to kill them if they tried to leave. Libyan authorities separated Simpson from her husband approximately three months into their captivity. Shortly thereafter, Libya released Simpson but held her husband incommunicado for four more months.

On July 21, 2000, Simpson filed a pro se complaint against Libya, alleging battery, false imprisonment, intentional infliction of emotional distress, loss of consortium, and seeking compensatory and punitive damages. Following some difficulty in serving the summons and complaint, service was effected on or about January 25, 2001. On March 27, 2001, Simpson moved for entry of default, which the District Court granted two days later. On April 19, 2001, Simpson mailed to Libya an offer to arbitrate. Simpson's offer to arbitrate was made subject to certain conditions. Among the conditions were that the arbitration would be conducted "by a third-party organization with extensive experience in arbitrating international disputes" and that the arbitration would "not require [Simpson's] absence from the United States." Offer to Arbitrate ¶¶ 1, 2. After receiving Simpson's offer to arbitrate, Libya filed an entry of appearance and a motion to reopen the case and extend time to file an answer. The District Court granted this motion on June 15, 2001. On

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July 23, 2001, Libya filed a motion to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim. The District Court denied the motion. Simpson v. Socialist People's Libyan Arab Jamahiriya, 180 F.Supp.2d 78 (D.D.C.2001). Libya now appeals from the denial of its motion.

II

The Foreign Sovereign Immunities Act ("FSIA") entitles foreign states to immunity from civil suits in United States courts, with specific exceptions. The Antiterrorism and Effective Death Penalty Act amended the FSIA by adding what is now 28 U.S.C. § 1605(a)(7), creating a new exception. Under section 1605(a)(7), foreign states that, like Libya, have been designated as state sponsors of terrorism are denied immunity for damages actions for personal injury or death resulting from certain acts, including acts of "torture" and "hostage taking." 28 U.S.C. § 1605(a)(7). The Flatow Amendment to the FSIA creates a right of action for torture or hostage taking against an "official, employee, or agent of a foreign state." Pub.L. No. 104-208, Div. A, Title I, § 101(c), 110 Stat. 3009-172 (1996) (codified at 28 U.S.C. § 1605 note).¹

Section 1605(a)(7) contains as a jurisdictional requirement that "the claimant ... afford[ ] the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration" if "the act occurred in the foreign state against which the claim has...