Roeder v. Islamic Republic of Iran

Notice: This opinion is subject to formal revision before publication in the

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before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 2003 Decided July 1, 2003

No. 02-5145

DAVID M. ROEDER, ET AL.,

APPELLANTS

v.

ISLAMIC REPUBLIC OF IRAN, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(00cv03110)

V. Thomas Lankford argued the cause for appellants.

With him on the briefs were William Coffield, Terrance G.

Reed, Roark M. Reed, and Jonathan S. Massey.

Stuart H. Newberger, Michael L. Martinez, and Laurel

Pyke Malson were on the brief for amici curiae Blake

Kilburn, et al. in support of appellants.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

H. Thomas Byron III, Attorney, U.S. Department of Jus-

tice, argued the cause for appellee United States of America.

With him on the brief were Roscoe C. Howard, Jr., U.S.

Attorney, and Douglas N. Letter, Litigation Counsel, U.S.

Department of Justice.

Before: HENDERSON, RANDOLPH, and GARLAND, Circuit

Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: Americans taken hostage in Iran

in 1979 and held for 444 days brought a class action on behalf

of themselves, and their spouses and children, against the

Islamic Republic of Iran and its Ministry of Foreign Affairs.

The district court, Sullivan, J., issued a comprehensive opin-

ion and ordered the action dismissed for failure to state a

claim. Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d

140 (D.D.C. 2002). Among the several issues presented on

appeal, the principal question is whether legislation specifical-

ly directed at this lawsuit, and enacted while the case was

pending in the district court, provided a cause of action for

the hostages and their families.

I.

The district court ably summarized the case and the rea-

sons for its decision:

‘‘Members of this plaintiff class previously attempted to sue

Iran, but their claims were dismissed because Congress had

not waived Iran’s sovereign immunity. See Persinger v.

Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984);

McKeel v. Islamic Republic of Iran, 722 F.2d 582 (9th Cir.

1983); Ledgerwood v. State of Iran, 617 F. Supp. 311 (D.D.C.

1985). In 1996, Congress passed the Federal Anti–Terrorism

and Effective Death Penalty Act (‘‘the 1996 Anti-terrorism

Act’’) and the Flatow Amendment, which together waived

foreign sovereign immunity and created a cause of action for

individuals harmed by state-sponsored acts of terrorism. 28

U.S.C. § 1605(a)(7) and note. With the assistance of their

counsel, plaintiffs brought this action under those statutes,

3

arguing that this new cause of action applied to the 1979

hostage taking in Tehran, and asking for compensatory and

punitive damages of $33 billion.

‘‘Iran chose not to defend its actions in this Court, despite

its long history of adjudicating claims in this Circuit. See,

e.g., McKesson HBOC, Inc. v. Islamic Republic of Iran, 271

F.3d 1101 (D.C. Cir. 2001). Plaintiffs therefore proceeded

with their claims unopposed, and at plaintiffs’ request the

Court entered a default judgment on liability on August 13,

2001. The Court scheduled a date for a trial to hear evidence

on damages, at which several of the plaintiffs were scheduled

to testify about their experiences. The Court did not look

lightly upon requiring plaintiffs to relive their terrible ordeal

and appreciated the difficulty of both testifying and witness-

ing such testimony.

‘‘On the eve of trial, however, the State Department, re-

cently made aware of plaintiffs’ claims, attempted to inter-

vene, vacate the judgment, and dismiss the suit. Plaintiffs’

hopes of recovery were once again placed in jeopardy. The

United States argued that the Algiers Accords, the 1980 bi-

lateral agreement between the United States and Iran, by

which the hostages’ release was secured, and its implement-

ing regulations, contain a prohibition on lawsuits arising out

of the hostage-taking at issue here. See Govt’s Mem. in

Supp. of Mot. to Vacate of 10/12/01. Because no act by

Congress had specifically abrogated the Accords, the govern-

ment argued, that agreement precludes plaintiffs’ claims and

the case should be dismissed. The United States also raised

several other arguments interpreting the Foreign Sovereign

Immunities Act that this Court lacked jurisdiction to hear

plaintiffs’ claims, and that plaintiffs’ claims should be dis-

missed on the merits.

‘‘Because of the last-minute nature of the government’s

[motion] to intervene, rather than deny plaintiffs, many of

whom had traveled from distant parts of the country, the

opportunity to present their testimony on the record, the

Court proceeded with the trial. For two days, the Court

heard the harrowing accounts of 444 days spent in captivity

4

from both the former hostages and their family members.

The Court scheduled a later date to hear argument on the

government’s motions and established a briefing schedule to

afford the plaintiffs an opportunity to respond to the govern-

ment’s arguments. The Court also directed plaintiffs’ counsel

to explain why they had not brought the Algiers Accords to

the Court’s attention earlier.

‘‘On November 28, 2001, the date that the government’s

reply brief was due, the case took yet another dramatic turn.

The government informed the Court that Congress had re-

cently passed, and the President had signed on that very day,

an appropriations bill with a provision amending the Foreign

Sovereign Immunities Act that specifically referred to this

case. See Subsection 626(c) of Pub. L. 107–77, 115 Stat. 748

(2001) (‘‘Subsection 626(c)’’). After hearing argument from

counsel on the impact of the appropriations rider, this Court

expressed its serious concern about the lack of clarity in

Congress’ recent action.

‘‘After the Court took this case under advisement, Con-

gress acted yet again. On December 20, 2001, Congress

passed yet another appropriations rider that added a techni-

cal amendment to Subsection 626(c) and contained language

in its legislative history purporting to explain the legislative

intent behind the earlier Subsection 626(c). See Section 208

of the Department of Defense and Emergency Supplemental

Appropriations Act, Pub. L. 107–117, 115 Stat. 2230 (‘‘Section

208’’). However, TTT while Congress’ intent to interfere with

this litigation was clear, its intent to abrogate the Algiers

Accords was not.

‘‘Were this Court empowered to judge by its sense of

justice, the heart-breaking accounts of the emotional and

physical toll of those 444 days on plaintiffs would be more

than sufficient justification for granting all the relief that they

request. However, this Court is bound to apply the law that

Congress has created, according to the rules of interpretation

that the Supreme Court has determined. There are two

branches of government that are empowered to abrogate and

rescind the Algiers Accords, and the judiciary is not one of

5

them. The political considerations that must be balanced

prior to such a decision are beyond both the expertise and the

mandate of this Court. Unless and until either the legislative

or executive branch acts clearly and decisively, this Court can

not grant plaintiffs the relief they seek.’’ Roeder, 195 F.

Supp. 2d at 144–45.

The Algiers Accords, mentioned in the district court’s

summary, is an executive agreement of importance to this

case. In order to secure the hostages’ release, the United

States froze Iranian government assets, imposed trade sanc-

tions, prosecuted a claim before the International Court of

Justice, and undertook a military rescue operation. See

Persinger v. Islamic Republic of Iran, 729 F.2d 835, 837 n.1

(D.C. Cir. 1984). These efforts failed. On January 19, 1980,

the United States entered into the Algiers Accords, settling a

broad range of disputes between this country and Iran. See

generally Iran–United States: Settlement of the Hostage

Crisis, 20 I.L.M. 223 (1981). As part of the Accords, the

United States agreed to ‘‘bar and preclude the prosecution

against Iran of any TTT claim of TTT a United States national

arising out of the events TTT related to (A) the seizure of the

52 United States nationals on November 4, 1979, [and] (B)

their subsequent detention.’’ Id., Declaration of the Govern-

ment of the Democratic and Popular Republic of Algeria,

General Principles, ¶ 11, 20 I.L.M. at 227. The hostages were

released the next day. President Carter, on his last full day

in office, issued an executive order directing the Secretary of

the Treasury to issue regulations implementing this provision,

and directing and authorizing the Attorney General to take

appropriate measures to notify the judiciary of the Order.

Non–Prosecution of Claims of Hostages and for Actions at

the United States Embassy and Elsewhere, Exec. Order No.

12,283, 46 Fed. Reg. 7927 (Jan. 19, 1981); see also Prohibition

Against Prosecution of Certain Claims, 31 C.F.R.

§ 535.216(a). After the change in administrations, President

Reagan ratified this executive order and related ones. Sus-

pension of Litigation Against Iran, Exec. Order No. 12,294,

§ 8, 46 Fed. Reg. 14,111 (Feb. 24, 1981).

6

II.

A.

One of the issues plaintiffs raise is whether the district

court erred in permitting the United States to intervene as a

defendant. We wonder how a reversal of that ruling would

assist plaintiffs. The Foreign Sovereign Immunities Act –

FSIA – does not automatically entitle a plaintiff to judgment

when a foreign state defaults. The court still has an obli-

gation to satisfy itself that plaintiffs have established a right

to relief. 28 U.S.C. § 1608(e). The district court did not

mention the Algiers Accords when the default judgment was

entered, but that was because plaintiffs’ counsel had not

alerted the court to the Accords.1 After the Justice Depart-

ment informed the court of the Accords, the court performed

its duty under § 1608(e) and determined that plaintiffs were

not entitled to relief. We see no basis for assuming that the

court, having become aware of this impediment to plaintiffs’

action, would have reached a different result if it had denied

the government’s motion to intervene. In other words, even

if the Justice Department had appeared only in the capacity

of amicus curiae, the outcome would not have changed.

At all events it is clear to us that the court properly

granted the United States leave to intervene as of right.

Federal Rule of Civil Procedure 24(a) provides that an appli-

cant for intervention must file a ‘‘timely application’’ and

demonstrate that it has ‘‘an interest relating to the property

or transaction which is the subject matter of the action’’ and

that ‘‘the applicant is so situated that the disposition of the

action may as a practical matter impair or impede the appli-

cant’s ability to protect that interest, unless the applicant’s

interest is adequately represented by existing parties.’’ See

also Smoke v. Norton, 252 F.3d 468, 470 (D.C. Cir. 2001).

1 The court criticized plaintiffs’ counsel for failing to ‘‘bring to the

Court’s attention the Algiers Accords and implementing regulations

despite FSIA’s requirement that plaintiffs ‘‘establish[ed] [their]

claim or right to relief by evidence that is satisfactory to the court.

28 U.S.C. § 1608(e).’’ Roeder, 195 F. Supp. 2d at 185 (alterations in

original).

7

The district court correctly analyzed each of these factors.

Timeliness is measured from when the prospective intervenor

‘‘knew or should have known that any of its rights would be

directly affected by the litigation.’’ Nat’l Wildlife Fed’n v.

Burford, 878 F.2d 422, 433–34 (D.C. Cir. 1989), rev’d on other

grounds sub nom. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871

(1990). Here, the government moved to intervene less than

thirty days after the State Department received notice of the

potential conflict with the executive agreement. As to the

government’s interest, plaintiffs suppose it is in providing

Iran with a defense. That is incorrect. The government’s

interest is in upholding the Algiers Accords, an interest that

would be impaired if plaintiffs obtained a judgment in viola-

tion of the Accords. We have already decided that the

interest of the United States in meeting ‘‘its obligations under

the executive agreement with Iran’’ entitled it to intervene as

a defendant. See Persinger, 729 F.2d at 837. And because

Iran failed to appear before the district court, the interest of

the United States was not represented by the existing par-

ties.

Although the government thus satisfied the requirements

of Rule 24(a), decisions of this court hold an intervenor must

also establish its standing under Article III of the Constitu-

tion. See, e.g., Fund for Animals, Inc. v. Norton, 322 F.3d

728, 731–32 (D.C. Cir. 2003); Bldg. & Constr. Trades Dep’t v.

Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994). The court’s

opinion in Rio Grande Pipeline Co. v. FERC, 178 F.3d 533,

538 (D.C. Cir. 1999), identified a split in the circuits on the

subject of intervenor standing. We were dealing there with

intervention in the court of appeals under 28 U.S.C. § 2348.

As to intervention in the district court, requiring standing for

an applicant wishing to come in on the side of a plaintiff who

has standing runs into the doctrine that Article III is satisfied

so long as one party has standing. See, e.g., Watt v. Energy

Action Found., 454 U.S. 151, 160 (1981); Am. Soc’y for the

Prevention of Cruelty to Animals v. Ringling Bros. & Bar-

num & Bailey Circus, 317 F.3d 334, 338 (D.C. Cir. 2003).

Requiring standing of someone who seeks to intervene as a

defendant, see Fund for Animals, 322 F.3d at 730–32, runs

8

into the doctrine that the standing inquiry is directed at those

who invoke the court’s jurisdiction. See Virginia v. Hicks, 71

U.S.L.W. 4441, 4443 (U.S. June 16, 2003). Still, there is no

need to dwell on the issues thus raised. With respect to

intervention as of right in the district court, the matter of

standing may be purely academic. One court has rightly

pointed out that any person who satisfies Rule 24(a) will also

meet Article III’s standing requirement. Sokaogon Chippe-

wa Cmty. v. Babbitt, 214 F.3d 941, 946 (7th Cir. 2000). So

here. The United States established that it was in imminent

danger of suffering injury in fact – a breach of its obligations

under the Accords. There was a ‘‘causal connection between

the injury and the conduct complained of’’ and the injury was

capable of judicial redress. Bennett v. Spear, 520 U.S. 154,

167 (1997). The United States therefore had standing as a

defendant-intervenor.

With this much settled, the error of plaintiffs’ claim that

the United States could not properly move to vacate the

default judgment becomes apparent. The United States was

not asserting defenses personal to the parties in default –

Iran and its Ministry of Foreign Affairs. The government

entered the case to assert its own defenses under the Algiers

Accords. As an intervenor, the United States ‘‘participates

on an equal footing with the original parties to a suit.’’ Bldg.

& Constr. Trades Dep’t, 40 F.3d at 1282. The United States

therefore had the right to move under Rule 60(b) of the

Federal Rules of Civil Procedure to vacate the default judg-

ment against the defendants.

B.

One other preliminary issue deals with the legal status of

Iran’s Ministry of Foreign Affairs. The Flatow amendment

to the FSIA, set forth at 28 U.S.C. § 1605 note,2 provides a

2 ‘‘An official, employee, or agent of a foreign state designated as

a state sponsor of terrorism TTT while acting within the scope of his

or her office, employment, or agency shall be liable to a United

States national or the national’s legal representative for personal

injury or death caused by acts of that official, employee, or agent

9

cause of action against officials, employees, and agents of

foreign states. Because it is unclear whether the amendment

also provides a cause of action against the foreign state,3

plaintiffs maintain that the Ministry of Foreign Affairs is

merely an agent of Iran, not its alter ego. In Transaero, Inc.

v. La Fuerza Aerea Boliviana, 30 F.3d 148, 149–50 (D.C. Cir.

1994), we concluded that a nation’s air force is a ‘‘foreign state

or political subdivision’’ rather than an ‘‘agency or instrumen-

tality’’ of the nation for purposes of the service-of-process

provisions of the FSIA. ‘‘Any government of reasonable

complexity must act through men organized into offices and

departments.’’ Id. at 153. We adopted a categorical ap-

proach: if the core functions of the entity are governmental,

it is considered the foreign state itself; if commercial, the

entity is an agency or instrumentality of the foreign state. A

nation’s armed forces are clearly on the governmental side.

Id. For similar reasons, the Ministry of Foreign Affairs

must be treated as the state of Iran itself rather than as its

agent.4 The conduct of foreign affairs is an important and

‘‘indispensable’’ governmental function. Kennedy v. Mendo-

za–Martinez, 372 U.S. 144, 160 (1963).

for which the courts of the United States may maintain jurisdiction

under [28 U.S.C. § 1605(a)(7)] for money damages which may

include economic damages, solatium, pain, and suffering, and puni-

tive damages if the acts were among those described in

[§ 1605(a)(7)].’’ 28 U.S.C. § 1605 note.

3 In view of the Flatow amendment’s failure to mention the

liability of foreign states, it is ‘‘far from clear’’ that a plaintiff has a

substantive claim against a foreign state under the Foreign Sover-

eign Immunities Act. Price v. Socialist People’s Libyan Arab

Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002); see also Bettis v.

Islamic Republic of Iran, 315 F.3d 325, 330 (D.C. Cir. 2003). We

have yet to decide the question and see no reason to do so here.

4 Plaintiffs suggest that the legislative intent expressed in 28

U.S.C. § 1606 and the principles of respondeat superior and ratifi-

cation create liability for Iran based upon the actions of its Ministry

of Foreign Affairs. Because the two defendants are not legally

distinct, plaintiffs must show an abrogation of the Algiers Accords

to subject either defendant to liability.

10

III.

This brings us to the principal issue. The authority of the

President to settle claims of American nationals through

executive agreements is clear. See Am. Ins. Ass’n v. Garam-

endi, 2003 WL 21433477, at *11 (U.S. June 23, 2003); id at

*23 (Ginsburg, J., dissenting). There is no doubt that laws

passed after the President enters into an executive agreement

may abrogate the agreement. The question here is whether

legislation enacted while the case was pending abrogated the

Algiers Accords.

The FSIA provides generally that a foreign state is im-

mune from the jurisdiction of the United States courts unless

one of the exceptions listed in 28 U.S.C. § 1605(a) applies.

See Argentine Republic v. Amerada Hess Shipping Corp.,

488 U.S. 428, 434–35 (1988). At the time plaintiffs filed their

complaint and up to entry of the default judgment of liability,

none of the exceptions applied to this case. Section

1605(a)(7)(A), added as part of the Antiterrorism and Effec-

tive Death Penalty Act of 1996, allowed an exception to the

immunity bar if plaintiffs showed that the foreign state had

been designated a state sponsor of terrorism when the act

occurred or as a result of the act. 28 U.S.C. § 1605(a)(7)(A)

(2000). Iran had not been so designated.

After the United States moved to intervene and vacate the

default judgment, Congress amended the FSIA. A provision

in an appropriations act stated that § 1605(a)(7)(A) would be

satisfied (that is, the immunity of the foreign state would not

apply) if ‘‘the act is related to Case Number

1:00CV03110(ESG) [sic] in the United States District Court

for the District of Columbia.’’ Departments of Commerce,

Justice, and State, the Judiciary, and Related Agencies Ap-

propriations Act, 2002, Pub. L. No. 107–77, § 626(c), 115 Stat.

748, 803 (2001). Six weeks later, Congress corrected an error

in the case number: ‘‘Section 626(c) of the Departments of

Commerce, Justice, and State, the Judiciary and Related

Agencies Appropriations Act, 2002 (Public Law No. 107–77) is

amended by striking ‘1:00CV03110(ESG)’ and inserting

‘1:00CV03110(EGS).’ ’’ Department of Defense and Emer-

gency Supplemental Appropriations for Recovery from and

Response to the Terrorist Attacks on the United States Act,

2002, Pub. L. No. 107–117, Div. B, § 208, 115 Stat. 2230, 2299

11

(2002) (currently codified at 28 U.S.C.A. § 1605(a)(7)(A)

(Supp. 2003)).

Together, these amendments created an exception, for this

case alone, to Iran’s sovereign immunity, which would other-

wise have barred the action. The evident purpose was to

dispose of the government’s argument, in its motion to vacate,

that plaintiffs’ action should be dismissed because Iran had

not been designated a state sponsor of terrorism at the time

the hostages were captured and held, and that Iran’s later

designation (in 1984) rested not on the hostage crisis but on

its support of terrorism outside its borders. Mem. of P. & A.

in Supp. of the United States’ Mot. to Vacate the Default J.

and Dismiss Pls.’ Claims at 12–13 (Oct. 12, 2001) [hereinafter

‘‘Mot. to Vacate’’]; see also Determination Pursuant to Sec-

tion 6(i) of the Export Administration Act of 1979 – Iran, 49

Fed. Reg. 2836 (Jan. 23, 1984).

The question remained whether the Algiers Accords, on

which the United States had relied as a second ground for

dismissal, Mot. to Vacate at 18–23, survived the amendments.

The Accords required the United States to ‘‘bar and preclude

the prosecution against Iran of any pending or future claim of

TTT a United States national arising out of the events TTT

related to (A) the seizure of the 52 United States nationals on

November 4, 1979, [and] (B) their subsequent detentionTTTT’’

20 I.L.M. at 227; cf. Belk v. United States, 858 F.2d 706, 706

(Fed. Cir. 1988) (affirming summary judgment for the United

States in action by some of the plaintiffs here asserting that

the barring of their actions by the Accords constituted a

taking by the government). The amendments do not, on

their face, say anything about the Accords. They speak only

to the antecedent question of Iran’s immunity from suit in

United States courts. Plaintiffs therefore urge us to consider

statements in the ‘‘Conference Report’’ on the second appro-

priations act, which made the technical correction to the case

number. These statements, plaintiffs say, show that Con-

gress expressly recognized a conflict between their lawsuit

and the Accords and passed the amendments to resolve the

conflict in plaintiffs’ favor.

Some words about conference reports are in order. After

the House and the Senate pass different versions of legisla-

12

tion, each body appoints conferees to resolve disagreements

between the House and Senate bills. If a majority of the

conferees from each body agree, they submit two documents

to their respective houses: a conference report presenting the

formal legislative language and a joint explanatory statement

that explains the legislative language and how the differences

between the bills were resolved. Each body must vote on

approving the conference report in its entirety and may not

approve it only in part or offer any amendments. See gener-

ally STANLEY BACH & CHRISTOPHER M. DAVIS, CONGRESSIONAL

RESEARCH SERVICE, CONFERENCE REPORTS AND JOINT EXPLANATO-

RY STATEMENTS (2003).

Plaintiffs told us at oral argument that both houses voted

on the language of the conference report. This is accurate.

But it is not the conference report – which consists of the text

of the legislation – on which plaintiffs rely. The statements

they think important are in the joint explanatory statement,

which is in the form of a committee report. While both the

conference report and the joint explanatory statement are

printed in the same document, Congress votes only on the

conference report. Courts, including the Supreme Court,

have not always been precise about this, referring sometimes

to material in joint explanatory statements as the conference

report. See, e.g., City of Columbus v. Ours Garage & Wreck-

er Serv., Inc., 536 U.S. 424, 440 (2002) (quoting the ‘‘Joint

Explanatory Statement of the Committee of Conference’’ in

H.R. CONF. REP. NO. 103–677, at 87 (1994), and referring to it

as the ‘‘Conference Report’’); INS v. St. Cyr, 533 U.S. 289,

317 (2001) (quoting the ‘‘Joint Explanatory Statement of the

Committee of Conference’’ in H.R. CONF. REP. NO. 104–828, at

222 (1996), and referring to it as the ‘‘Conference Report’’);

see also George A. Costello, Average Voting Members and

Other ‘‘Benign Fictions’’: The Relative Reliability of Com-

mittee Reports, Floor Debates, and Other Sources of Legisla-

tive History, 1990 DUKE L.J. 39, 48 (‘‘Almost invariably,

courts employ the shorthand ‘committee report’ when refer-

ring to the explanatory statement of the managersTTTT’’).

We do not say material in the joint explanatory statement is

of no value in determining Congress’ intent. See Demby v.

13

Schweiker, 671 F.2d 507, 510 (D.C. Cir. 1981) (opinion of

MacKinnon, J.); see also Moore v. District of Columbia, 907

F.2d 165, 175 (D.C. Cir. 1990) (en banc). The point is that

contrary to what plaintiffs suggest, the explanatory remarks

in the ‘‘conference report’’ do not have the force of law.

The joint explanatory statement relating to Congress’ first

amendment, § 626(c), contains nothing to indicate that any

conferee took account of the Algiers Accords. The only

relevant remarks are that the amendment ‘‘quashes the State

Department’s motion to vacate the judgment obtained by

plaintiffs in [this case]’’ and that the United States is not

required to ‘‘make any payments to satisfy the judgment.’’

H.R. CONF. REP. No. 107–278, at 170 (2001). The motion of

course was on behalf of the United States, not the State

Department, and it is open to question whether Congress

may dictate the outcome of a particular judicial proceeding.5

We put these matters to the side. The government’s motion

to dismiss rested not only on plaintiffs’ failure to bring their

case within one of the exceptions to the general rule of

foreign sovereign immunity, but also on the bar set up in the

Algiers Accords. The text of § 626(c) is consistent with

removing the government’s first argument for dismissal. It

says nothing about the second.

The joint explanatory statement relating to § 208, which

corrected the typographical error in § 626(c), declares that

the earlier amendment ‘‘quashed’’ the ‘‘Department of State’s

motion to vacate’’ and mentions that, in the intervening

weeks, the ‘‘Department of State’’ continued to argue that the

judgment should be vacated. It then explains the meaning of

§ 626(c): ‘‘The provision TTT acknowledges that, notwith-

standing any other authority, the American citizens who

were taken hostage by the Islamic Republic of Iran in 1979

have a claim against Iran under the Antiterrorism Act of 1996

5 We do not decide whether the amendments, relating as they did

specifically to a pending action, violated separation-of-powers princi-

ples by impermissibly directing the result of pending litigation. See

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 240 (1995); Robert-

son v. Seattle Audubon Soc’y, 503 U.S. 429, 441 (1992).

14

and the provision specifically allows the judgment to

standTTTT’’ H.R. CONF. REP. NO. 107–350, at 422–23 (2001)

(emphasis added). This statement, and the italicized lan-

guage in particular, is the type of language that might

abrogate an executive agreement – if the statement had been

enacted. But Congress did not vote on the statement and the

President did not sign a bill embodying it.6

There is thus no clear expression in anything Congress

enacted abrogating the Algiers Accords. Yet neither a treaty

nor an executive agreement will be considered ‘‘ ‘abrogated or

modified by a later statute unless such purpose on the part of

Congress has been clearly expressed.’ ’’ Trans World Air-

lines v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) (quot-

ing Cook v. United States, 288 U.S. 102, 120 (1933)); see

Weinberger v. Rossi, 456 U.S. 25, 32 (1982); Comm. of United

States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929,

936–37 (D.C. Cir. 1988). The way Congress expresses itself

is through legislation. While legislative history may be useful

in determining intent, the joint explanatory statements here

go well beyond the legislative text of § 208, which did nothing

more than correct a typographical error. Moreover, the

explanatory statements, rather than explain the language of

§ 208, deal with the previously enacted § 626(c). Such legis-

lative history alone cannot be sufficient to abrogate a treaty

or an executive agreement. See Gray Panthers Advocacy

Comm. v. Sullivan, 936 F.2d 1284, 1288 (D.C. Cir. 1991).

Courts have insisted on clear statements from Congress in

other contexts. These include a waiver of federal sovereign

immunity, see United States v. Nordic Village, Inc., 503 U.S.

6 Upon signing the first appropriations act, President Bush stat-

ed: ‘‘the Executive Branch will act, and encourage the courts to act,

with regard to Subsection 626(c) of the bill in a manner consistent

with the obligations of the United States under the Algiers Ac-

cordsTTTT’’ Statement by President George W. Bush Upon Signing

H.R. 2500, 2002 U.S.C.C.A.N. 886, 887 (Nov. 28, 2001). In signing

the bill containing the technical correction, the President issued a

similar statement. See Statement by President George W. Bush

Upon Signing H.R. 3338, 2002 U.S.C.C.A.N. 1776, 1778–79 (Jan. 10,

2002).

15

30, 33–34 (1992); retroactivity of statutes, see Landgraf v.

USI Film Products, 511 U.S. 244, 271–72 (1994); repeal of

habeas jurisdiction, see St. Cyr, 533 U.S. at 298–99; waiver of

Eleventh Amendment immunity, Dellmuth v. Muth, 491 U.S.

223, 230–31 (1989); and a significant alteration in the balance

of power between Congress and the President, see Armstrong

v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). In Dellmuth, a

case dealing with a waiver of Eleventh Amendment immunity,

the Court held that if ‘‘Congress’ intention is ‘unmistakably

clear in the language of the statute,’ recourse to legislative

history will be unnecessary; if Congress’ intention is not

unmistakably clear, recourse to legislative history will be

futileTTTT’’ 491 U.S. at 230. Executive agreements are

essentially contracts between nations, and like contracts be-

tween individuals, executive agreements are expected to be

honored by the parties. Congress (or the President acting

alone) may abrogate an executive agreement, but legislation

must be clear to ensure that Congress – and the President –

have considered the consequences. The ‘‘requirement of

clear statement assures that the legislature has in fact faced,

and intended to bring into issue, the critical matters involved

in the judicial decision.’’ Gregory v. Ashcroft, 501 U.S. 452,

461 (1991). The kind of legislative history offered here

cannot repeal an executive agreement when the legislation

itself is silent. See Comm. of United States Citizens, 859

F.2d at 936–37.

As against this, plaintiffs say that we should not presume

that Congress, in passing the amendments, did ‘‘a futile

thing.’’ Halverson v. Slater, 129 F.3d 180, 185 (D.C. Cir.

1997). But we are presuming no such thing. The amend-

ments were not futile acts. If constitutional, see supra note

5, the amendments had the effect of removing Iran’s sover-

eign immunity, which the United States had raised in its

motion to vacate. This enabled plaintiffs to argue that the

Accords were not a valid executive agreement.7 Plaintiffs in

7 For example, a member of the panel at oral argument raised the

question whether an international agreement is binding if it is not

16

fact made this argument in the district court (but they do not

make it here). See Pls.’ Supplemental Brief at 9–12 (Jan. 22,

2002); 195 F. Supp. 2d at 168. That the district court

rejected the argument is of no moment. Plaintiffs’ opportuni-

ty to have it decided resulted directly from the amendments.

Plaintiffs also cite § 2002 of the Victims of Trafficking and

Violence Protection Act of 2000, Pub. L. No. 106–386, § 2002,

114 Stat. 1464, 1541–42, to show that they have stated a cause

of action. Section 2002 states only that if an individual has a

judgment against Iran, the United States will pay it if the

statutory requirements are satisfied. The question in this

case is whether plaintiffs are legally entitled to such a judg-

ment. We agree with the district court that they are not.

We have considered plaintiffs’ other arguments but see no

need to set forth our reasons for rejecting them.

Affirmed.

entered into voluntarily but ‘‘at the point of a gun’’ to obtain release

of the hostages.