Smith v. Socialist People's Libyan Arab Jamahiriya

• Decision Date: 10 February 1997
• Docket Number: D,1572 and 1573,Nos. 1241,s. 1241
• Citation: 101 F.3d 239
• Parties: Bruce SMITH, as personal representative of Ingrid Smith, deceased and on behalf of all others similarly situated; Paul S. Hudson, personal representative of the Estate of Melina K. Hudson, deceased; Bruce D. Abbott; et al., Plaintiffs-Appellants, v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA; Libyan External Security Organization, also known as Jamahiriya Security Organization; Libyan Arab Airlines, Defendants-Appellees, Abdel Basset Ali Al-Megrahi, also known as Abdelbaset Ali Mohmed, also known as Adbelbaset Ali Mohmed Al Megrahi, also known as Mr. Baset, also known as Ahmed Khalifa Abdusamad, also known as Abd Al-Basit Al-Magrahi, and Lamen Khalifa Fhimah, also known as Al Amin Khalifa Fhimah, also known as Mr. Lamin, Defendants. ockets 95-7930, 95-7931 and 95-7942.
• Court: U.S. Court of Appeals — Second Circuit

Page 239

101 F.3d 239

65 USLW 2374

Bruce SMITH, as personal representative of Ingrid Smith deceased and on behalf of all others similarly situated Paul S. Hudson, personal representative of the Estate of Melina K. Hudson, deceased; Bruce D. Abbott; et al Plaintiffs-Appellants, v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA; Libyan External Security Organization, also known as Jamahiriya Security Organization; Libyan Arab Airlines, Defendants-Appellees Abdel Basset Ali Al-Megrahi, also known as Abdelbaset Ali Mohmed, also known as Adbelbaset Ali Mohmed Al Megrahi, also known as Mr. Baset, also known as Ahmed Khalifa Abdusamad, also known as Abd Al-Basit Al-Magrahi, and Lamen Khalifa Fhimah, also known as Al Amin Khalifa Fhimah, also known as Mr. Lamin, Defendants.

Nos. 1241, 1572 and 1573, Dockets 95-7930, 95-7931 and 95-7942.

United States Court of Appeals, Second Circuit.

Submitted March 28, 1996.

Decided Nov. 26, 1996.

Order Recalling Mandate and Modifying

Opinion Feb. 10, 1997.

Timothy C. Russell, Washington, DC (Douglas E. Rosenthal, Daniel N. Segal, Daniel J. Shonkwiler, Sonnenschein Nath & Rosenthal, Washington, DC; Douglas R. Rutzen, Int'l Center for Not-for-Profit Law, Washington, DC; Michael Reisman, Yale Law School, New Haven, CT; Allan Gerson, Mark S. Zaid, Washington, DC; Richard Emery, Andrew Celli, New York City; on the brief), for plaintiffs-appellants.

John R. Bartels, Jr., Bartels & Feureisen, White Plains, NY (Robert C. Mirone, Mirone & Shields, New York City; Abdelhay Sefrioui, Abdelhay et Anne Sefrioui, Paris, France, on the brief), for defendants-appellees.

(John F. Welsh, Scott A. Birnbaum, Richard S. Sanders, Testa, Hurwitz & Thibeault, Boston, MA; Nathan Levin, Julie L. Mendel, submitted a brief, for amicus curiae International Association of Jewish Lawyers and Jurists (American Section)).

(Johnathan B. Schwartz, Linda Jacobson, Mary Catherine Malin, Office of the Legal Adviser, U.S. Dept. of State, Washington, DC; Frank W. Hunger, Stephen W. Preston, Douglas N. Letter, Freddi Lipstein, Civil Div., U.S. Dept. of Justice, Washington, DC, submitted a brief, for amicus curiae, United States of America).

Before: NEWMAN, Chief Judge, OAKES and PARKER, Circuit Judges.

JON O. NEWMAN, Chief Judge:

In Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995), this Court ruled that a violation of certain fundamental norms of international law can be redressed by a civil suit brought in a United States district court against private citizens under the Alien Tort Claims Act, 28 U.S.C. § 1350 (1994). The pending appeal presents the issue of whether such violations can be redressed by a civil suit brought in a United States district court against a foreign state. The more precise issue is whether such a suit--brought primarily on behalf of victims of an aircraft bombing--is prohibited by the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611 (1994), as it read prior to the recent amendment that explicitly permits suits against foreign states in some circumstances for acts in violation of fundamental international norms such as aircraft sabotage, see Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, § 221(a), 110 Stat. 1214, 1241 (1996) (to be codified at 28 U.S.C. § 1605(a)(7)).

The representatives of two persons who died as a result of the bombing of Pan American ("Pan Am") Flight 103 over Lockerbie, Scotland, in 1988 and a group of former Pan Am employees appeal, pursuant to Fed.R.Civ.P. 54(b), from judgments of the District Court for the Eastern District of New York (Thomas C. Platt, Jr., Judge), dismissing their suits against The Socialist People's Libyan Arab Jamahiriya, Libyan Arab Airlines, and The Libyan External Security Organization (collectively "Libya") for lack of subject matter jurisdiction. We affirm.

Background

We have previously considered lawsuits by the families of victims of the bombing of Pan Am Flight 103 brought against Pan Am for the carrier's role in permitting a suitcase containing a bomb to be loaded onto the aircraft. See In re Air Disaster at Lockerbie Scotland on December 21, 1988, 37 F.3d 804 (2d Cir.1994). This appeal concerns three lawsuits alleging that the government of Libya, acting through its agents, deliberately caused the bombing. The plaintiffs are Bruce Smith, suing as representative of Ingrid Smith, his deceased wife (No. 95-7930), Paul S. Hudson, suing as representative of Melina K. Hudson, his deceased daughter (No. 95-7931), and Bruce D. Abbott and other former pilots, co-pilots, flight engineers, and flight attendants of Pan Am (No. 95-7942). Smith, Hudson, and the former Pan Am employees are all citizens of the United States. Smith brings his lawsuit on behalf of a class of family members of all passengers and crew members killed in the bombing.

The complaints allege that the Libyan governmental defendants, acting principally through two Libyan agents, Abdel Basset Ali Al-Megrahi and Lamen Khalifa Fhimah, planned and carried out the bombing of Pan Am Flight 103. Al-Megrahi and Fhimah have been indicted in the District of Columbia for their roles in the bombing.

The three lawsuits were originally filed in the District Court for the District of Columbia and transferred to the Eastern District of New York. On motions by the three Libyan state defendants to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, the Smith and Hudson suits were dismissed. Smith v. Socialist People's Libyan Arab Jamahiriya, 886 F.Supp. 306 (E.D.N.Y.1995). This ruling was made applicable by stipulation to the Abbott suit. The three dismissals were certified for entry of final judgment pursuant to Fed.R.Civ.P. 54(b) because the suits remain pending against Al-Megrahi and Fhimah.

Discussion

The parties are in agreement that the issue of Libya's amenability to suit in a United States court is governed by the Foreign Sovereign Immunities Act ("FSIA"). The FSIA "provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 693, 102 L.Ed.2d 818 (1989). The FSIA recognizes the immunity of foreign states, 28 U.S.C. § 1604, subject to specified exceptions. The appellants advance four bases for asserting jurisdiction over Libya--(1) implied waiver, id. § 1605(a)(1), arising from Libya's alleged participation in actions that violate fundamental norms of international law; (2) implied waiver, id. § 1605(a)(1), arising from Libya's alleged guaranty of any damage judgment against the individual defendants; (3) occurrence of the alleged bombing on "territory" of the United States, id. § 1605(a)(5); and (4) conflict with the United Nations Charter, id. § 1604.

1. Implied Waiver for Jus Cogens Violations

The FSIA removes the immunity of a foreign state in any case "in which the foreign state has waived its immunity either explicitly or by implication." Id. § 1605(a)(1). The appellants contend that an implied waiver has occurred by virtue of Libya's violation of fundamental international norms ("jus cogens "). Libya concedes, for purposes of this appeal, that its alleged participation in the bombing of Pan Am Flight 103 would be a violation of jus cogens, but it contests the premise of appellants' argument that such a violation demonstrates an implied waiver of sovereign immunity within the meaning of the FSIA.

The contention that a foreign state should be deemed to have forfeited its sovereign immunity whenever it engages in conduct that violates fundamental humanitarian standards is an appealing one. The argument was persuasively developed a few years ago in the California Law Review. See Adam C. Belsky et al., Implied Waiver Under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, 77 Cal. L.Rev. 365 (1989). The argument is premised on the idea that because observance of jus cogens is so universally recognized as vital to the functioning of a community of nations, every nation impliedly waives its traditional sovereign immunity for violations of such fundamental standards by the very act of holding itself out as a state:

Jus cogens norms ... do not depend on the consent of individual states, but are universally binding by their very nature. Therefore, no explicit consent is required for a state to accept them; the very fact that it is a state implies acceptance. Also implied is that when a state violates such a norm, it is not entitled to immunity.

Id. at 399 (emphasis added). ¹

The issue we face, however, is not whether an implied waiver derived from a nation's existence is a good idea, but whether an implied waiver of that sort is what Congress contemplated by its use of the phrase "waive[r] ... by implication" in section 1605(a)(1) of the FSIA. We have no doubt that Congress has the authority either to maintain sovereign immunity of foreign states as a defense to all violations of jus cogens if it prefers to do so or to remove such immunity if that is its preference, and we have no doubt that Congress may choose to remove the defense of sovereign immunity selectively for particular violations of jus cogens, as it has recently done in the 1996 amendment of the FSIA. To determine which course Congress chose when it enacted the FSIA in 1976, we examine first the terms of the statute and then the legislative history.

The text of section 1605(a)(1) is not conclusive as to the meaning of an implied waiver. It simply says that a foreign state shall not be immune in any case in which the foreign state has waived its immunity "either explicitly or by implication." We and other courts have observed that "the implied waiver provision of Section 1605(a)(1) must be construed narrowly." Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017 (2d Cir.1991); see Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 444 (D.C.Cir.1990); ...