Cicippio-Puleo v. Islamic Republic of Iran

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 15, 2003 Decided January 16, 2004

No. 02-7085

ELIZABETH A. CICIPPIO-PULEO, ET AL.,

APPELLANTS

v.

ISLAMIC REPUBLIC OF IRAN AND

IRANIAN MINISTRY OF INFORMATION AND SECURITY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv01496)

Thomas L. Gowen argued the cause for appellants. With

him on the briefs were James J. Oliver and Steven J. McCool.

Stuart H. Newberger argued the cause for amicus curiae

Blake Kilburn in support of appellants. With him on the

brief were Michael L. Martinez, Laurel Pyke Malson and F.

Ryan Keith.

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

Elizabeth B. Wydra, Supervising Attorney, argued the

cause as amicus curiae in support of the District Court’s

judgment. With her on the brief were Steven H. Goldblatt,

Director of the Appellate Litigation Program, appointed by

the court, and William J. Brown, Varu Chilakamarri, and

Ruthanne M. Deutsch, Student Counsel.

Douglas Letter, Litigation Counsel, U.S. Department of

Justice, argued the cause for amicus curiae The United

States. With him on the brief were Peter D. Keisler, Assis-

tant Attorney General, Roscoe C. Howard, Jr., U.S. Attorney,

Gregory G. Katsas, Deputy Assistant Attorney General, H.

Thomas Byron III, Attorney, and Mark A. Clodfelter, Attor-

ney, U.S. Department of State.

Before: EDWARDS, RANDOLPH, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS

EDWARDS, Circuit Judge: This case involves a lawsuit

brought against the Islamic Republic of Iran (‘‘Iran’’) under

the terrorism exception, 28 U.S.C. § 1605(a)(7), to the For-

eign Sovereign Immunities Act (‘‘FSIA’’), 28 U.S.C. §§ 1330,

1602-11 (2000). The plaintiffs in the suit are the adult

children and siblings of Joseph J. Cicippio, a victim of terror-

ist hostage-taking. Joseph Cicippio was abducted in 1986 by

Hizbollah, an Islamic terrorist organization that receives ma-

terial support from Iran. He was held hostage until 1991,

confined in inhumane conditions and frequently beaten. In

1996, Joseph Cicippio and his wife sued Iran for the tortious

injuries they sustained as a result of Mr. Cicippio’s kidnaping,

imprisonment, and torture. Iran failed to respond to the

complaint and default was entered on November 13, 1997.

The case was tried ex parte and, on August 27, 1998, the

District Court entered judgment against Iran in favor of Mr.

and Mrs. Cicippio in the amount of $30 million. Cicippio v.

Islamic Republic of Iran, 18 F. Supp. 2d 62, 64, 70 (D.D.C.

1998). No appeal was taken.

In 2001, Joseph Cicippio’s children and siblings sued Iran

for the intentional infliction of emotional distress and loss of

solatium they suffered as a result of Mr. Cicippio’s ordeal.

3

The Iranian defendants failed to respond to the complaint and

the District Court entered default on January 2, 2002. The

Cicippios filed a motion for summary judgment on January

10, 2002. Subsequently, on January 24, 2002, plaintiffs moved

to consolidate their suit with Mr. and Mrs. Cicippio’s case,

which by then had been closed. On June 21, 2002, the

District Court denied the motions for summary judgment and

consolidation. The court also sua sponte dismissed the Ci-

cippios’ complaint under Federal Rules of Civil Procedure

12(b)(6) and 12(h)(3), holding that ‘‘the FSIA, as amended,

does not confer subject matter jurisdiction upon it to enter-

tain claims for emotional distress and solatium brought by

claimants situated as are these plaintiffs upon the allegations

of their complaint.’’ Cicippio-Puleo v. Islamic Republic of

Iran, Civ. No. 01-1496, slip op. at 2, (D.D.C. June 21, 2002),

reprinted in Appendix (‘‘App.’’) 3, 4. Joseph Cicippio’s chil-

dren and siblings now appeal. Responding to our request,

the Justice Department has filed a brief as amicus curiae

stating the position of the United States. The Government’s

position is that neither section 1605(a)(7) of the FSIA nor the

Flatow Amendment, 28 U.S.C. § 1605 note, creates a private

cause of action against foreign governments for acts of hos-

tage taking or torture.

We affirm the judgment of the District Court. Section

1605(a)(7) of the FSIA abrogates foreign sovereign immunity

and provides jurisdiction in specified circumstances, but it

does not create a private cause of action. By its clear terms,

the Flatow Amendment provides a private right of action only

against individual officials, employees, and agents a foreign

state, but not against a foreign state itself. Plainly, neither

section 1605(a)(7) nor the Flatow Amendment, separately or

together, establishes a cause of action against foreign state

sponsors of terrorism. Therefore, the Cicippios’ suit cannot

proceed on these grounds. However, because the Cicippios’

suit was filed in the wake of judgments in favor of Mr. and

Mrs. Cicippio and other hostage victims, they may have been

misled in assuming that the Flatow Amendment afforded a

cause of action against foreign state sponsors of terrorism.

We therefore affirm the judgment of the District Court, but

4

remand the case to allow plaintiffs an opportunity to amend

their complaint to state a cause of action under some other

source of law. We reserve judgment, however, on whether

the Cicippios have any viable basis for an action against Iran,

leaving that issue to the District Court in the first instance.

I. BACKGROUND

A. Facts

On the morning of September 12, 1986, Joseph. J. Cicippio

was kidnaped in Beiruit, Lebanon, by the terrorist group

Hizbollah, an agent of Iran’s Ministry of Information and

Security (‘‘MOIS’’). At the time of his abduction, Mr. Cicip-

pio was comptroller of the American University of Beiruit.

Hizbollah held him hostage for 1,908 days. During that time,

he was randomly beaten, confined in rodent- and scorpion-

infested cells, and bound by chains. He suffered from nu-

merous medical problems emanating from the inhumane

treatment that he experienced during his captivity. At some

point after Mr. Cicippio was taken hostage, he was forced to

undergo major surgery for an unidentified abdominal condi-

tion that has left a ten-inch scar on his abdomen. See

Cicippio, 18 F. Supp. 2d at 66.

In 1996, Joseph Cicippio filed suit against Iran under the

‘‘terrorism exception’’ to the FSIA, 28 U.S.C. § 1605(a)(7),

and the Flatow Amendment, 28 U.S.C. § 1605 note. His

lawsuit was joined by his wife, Elham Cicippio, two other

hostage victims, and the wife of one of the other victims. The

Iranian defendants did not respond to the complaint and were

found in default. The case was tried ex parte and, on August

27, 1998, the District Court rendered a judgment for Joseph

Cicippio in the amount of $20 million in damages for lost

wages and opportunities and compensatory damages for pain

and suffering and mental anguish, and $10 million for Mrs.

Cicippio in damages for loss of her husband’s society and

companionship and mental anguish. See Cicippio, 18 F.

Supp. 2d at 64, 70. Iran never entered an appearance in the

case and no appeal was taken from the judgment of the

District Court.

5

The instant case arises from a lawsuit brought in 2001 by

Joseph Cicippio’s seven adult children and seven siblings

against Iran and MOIS for the intentional infliction of emo-

tional distress and loss of solatium they sustained as a result

of Mr. Cicippio’s ordeal. The suit was based on claims

purporting to arise under section 1605(a)(7) and the Flatow

Amendment. On January 2, 2002, after Iran failed to re-

spond to the complaint, the District Court entered a default

judgment for the Cicippio children and siblings. On January

10, 2002, the Cicippios filed a motion for summary judgment.

They subsequently filed a motion to consolidate their case

with Mr. and Mrs. Cicippio’s lawsuit against Iran, which by

then had been closed. The motion for summary judgment

included affidavits from the children and siblings establishing

that Mr. Cicippio’s captivity caused them to suffer from

emotional distress by virtue of the harm done to him.

B. The Statutory Framework

The FSIA provides that ‘‘[s]ubject to existing international

agreements to which the United States is a party at the time

of enactment of this Act a foreign state shall be immune from

the jurisdiction of the courts of the United States and of the

States except as provided in sections 1605 to 1607 of this

chapter.’’ 28 U.S.C. § 1604. Under the FSIA, foreign states

enjoy immunity from suit in U.S. courts unless Congress

waives immunity under an enumerated exception. In 1996, as

part of the comprehensive Antiterrorism and Effective Death

Penalty Act (‘‘AEDPA’’), Congress enacted the ‘‘terrorism

exception’’ to the FSIA, waiving the immunity of foreign

states and their agents in any case

in which money damages are sought against a for-

eign 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 (as defined in section

2339A of title 18) for such an act if such act or

provision of material support is engaged in by an

official, employee, or agent of such foreign state

6

while acting within the scope of his or her office,

employment, or agency TTT

28 U.S.C. § 1605(a)(7). This provision only waives the immu-

nity of a foreign state defendant that has been specifically

designated by the State Department as a ‘‘state sponsor of

terrorism,’’ 28 U.S.C. § 1605(a)(7)(A), and does not apply if

(i) the act occurred in the foreign state against

which the claim has been brought and the claimant

has not afforded the foreign state a reasonable

opportunity to arbitrate the claim in accordance with

accepted international rules of arbitration; or

(ii) neither the claimant nor the victim was a nation-

al of the United States (as that term is defined in

section 101(a)(22) of the Immigration and Nationali-

ty Act) when the act upon which the claim is based

occurred.

28 U.S.C. § 1605(a)(7)(B).

Five months after the passage of AEDPA, Congress enact-

ed a separate provision, titled Civil Liability for Acts of State

Sponsored Terrorism, which created a private right of action

against officials, employees, and agents of foreign states for

the conduct described in § 1605(a)(7). See Omnibus Consoli-

dated Appropriations Act of 1997, Pub. L. No. 104-208, Div.

A, Title I, § 101(c) [Title V, § 589], 110 Stat. 3009-172 (codi-

fied at 28 U.S.C. § 1605 note). This provision is known as

the ‘‘Flatow Amendment,’’ in recognition of the family of Alisa

Flatow, a woman who died as the result of a terrorist

bombing in Israel. See Flatow v. Islamic Republic of Iran,

999 F. Supp. 1, 12 (D.D.C. 1998). The Flatow Amendment

provides:

(a) An official, employee, or agent of a foreign state

designated as a state sponsor of terrorism designat-

ed under section 6(j) of the Export Administration

Act of 1979 [section 2405(j) of the Appendix to Title

50, War and National Defense] while acting within

the scope of his or her office, employment, or agency

shall be liable to a United States national or the

7

national’s legal representative for personal injury or

death caused by acts of that official, employee, or

agent for which the courts of the United States may

maintain jurisdiction under section 1605(a)(7) of title

28, United States Code [subsec. (a)(7) of this section]

for money damages which may include economic

damages, solatium, pain, and suffering, and punitive

damages if the acts were among those described in

section 1605(a)(7) [subsec. (a)(7) of this section].

28 U.S.C. § 1605 note.

It is undisputed that the Flatow Amendment permits U.S.

nationals to pursue a private right of action for terrorism

against officials, employees, and agents of designated foreign

states acting in their personal capacities. At issue here is

whether section 1605(a)(7) and the Flatow Amendment simi-

larly provide a cause of action against a foreign state.

C. The District Court’s Judgment

The District Court assumed that plaintiffs’ factual allega-

tions were true, but denied both their motion to consolidate

their case with Mr. and Mrs. Cicippio’s case and their motion

for summary judgment. The court also sua sponte dismissed

the Cicippios’ complaint under Federal Rules of Civil Proce-

dure 12(b)(6) and 12(h)(3), concluding that ‘‘the FSIA, as

amended, does not confer subject matter jurisdiction upon it

to entertain claims for emotional distress and solatium

brought by claimants situated as are these plaintiffs upon the

allegations of their complaint.’’ Cicippio-Puleo, Civ. No. 01-

1496, slip op. at 2, App. 4. Noting that a foreign state is

‘‘liable in the same manner and to the same extent as a

private individual under like circumstances,’’ 28 U.S.C.

§ 1606, the District Court held that the plaintiffs could not

recover under the prevailing common law rule governing

third party claims for outrageous conduct causing severe

emotional distress. Cicippio-Puleo, Civ. No. 01-1496, slip op.

at 3-4, App. 5-6. The District Court cited the Restatement

(Second) of Torts for the proposition that a third party

claimant must be present at the scene of the victim’s torment

in order to state a claim for intentional infliction of emotional

8

distress. Id. (citing RESTATEMENT (SECOND) OF TORTS § 46

(1986)). The District Court also held that solatium damages

were unavailable to Mr. Cicippio’s adult children and siblings,

because ‘‘another generally observed rule of American com-

mon law has refused to recognize a right to recover damages

for loss of ‘society and companionship’ by other than spouses

for injury to a third party – even a relative – not resulting in

third party’s death.’’ Cicippio-Puleo, Civ. No. 01-1496, slip

op. at 4, App. 6.

As noted above, the District Court based its dismissal of

the complaint on two grounds: Rule 12(b)(6) (‘‘failure to state

a claim upon which relief can be granted’’) and Rule 12(h)(3)

(‘‘the court lacks jurisdiction of the subject matter’’). The

second ground is inapposite, for it is clear that the District

Court had jurisdiction pursuant to the statutory waiver of

sovereign immunity under 28 U.S.C. § 1605(a)(7). Nonethe-

less, in their arguments to this court, the parties do not

disagree that the principal basis for the District Court’s

dismissal was not a lack of jurisdiction, but, rather, plaintiffs’

failure to state claims upon which relief could be granted. In

other words, the parties do not disagree that the District

Court’s disposition embraces the conclusion that the plaintiffs

cannot pursue their claims of emotional distress and loss of

solatium against a foreign state under the Flatow Amend-

ment. The Cicippios now appeal the District Court’s dismiss-

al of their claims.

D. The Appointment of Amicus Curiae and the Issues on

Appeal

Because Iran has never entered an appearance in this

litigation, the court appointed the Georgetown University

Law Center’s Appellate Litigation Program as amicus curiae

to present arguments in support of the District Court’s

judgment.*

* As they have done in the past, see Bettis v. Islamic Republic of

Iran, 315 F.3d 325, 332 note* (D.C. Cir. 2003), the advocates from

the Appellate Litigation Program responded admirably on very

short notice in assisting the court with an outstanding brief and oral

argument.

9

The court also ordered the parties to brief and argue, inter

alia, the following issues:

‘‘ ‘Whether the FSIA creates a federal cause of

action for torture and hostage taking against foreign

states,’ or only against their ‘official[s], employee[s]

or agent[s]’ as specified in the [Flatow] Amend-

ment,’’ an issue raised but not decided in Price v.

Socialist People’s Libyan Arab Jamahiriya, 294

F.3d 82 (D.C. Cir. 2002).

Whether Cicippio’s children and siblings may sue for

intentional infliction of emotional distress and loss of

solatium.

Whether appellants who seek to recover for emotion-

al distress based on conduct directed at a third party

must have been present at the time of the offending

conduct, and, if so, whether appellants satisfied this

‘‘presence’’ requirement.

Cicippio-Puleo v. Islamic Republic of Iran, No. 02-7085 (D.C.

Cir. July 9, 2003) (order appointing amicus curiae).

Subsequently, the court granted the motion of Blake Kil-

burn et al. (‘‘Kilburn amici’’), plaintiffs in other lawsuits in

the district court against foreign states, for leave to partici-

pate as amici curiae. Cicippio-Puleo v. Islamic Republic of

Iran, No. 02-7085 (D.C. Cir. July 31, 2003) (order granting

motion for leave to participate as amici curiae).

E. The Appearance of the United States as Amicus Curi-

ae

On November 6, 2003, the court issued the following order

soliciting the views of the United States:

It is ORDERED, on the court’s own motion, and in

accordance with 28 U.S.C. § 517, that the United

States of America file, by December 1, 2003, a

statement of its current position on the question

whether the Foreign Sovereign Immunities Act, 28

U.S.C. §§ 1602-11 (2003), allows a cause of action for

torture and hostage taking against foreign states, or

10

only authorizes statutory claims against state offi-

cials, employees, or agents as specified in the Flatow

Amendment, 28 U.S.C. § 1605 (note) (2000).

When the United States appeared in Roeder v.

Islamic Republic of Iran, the Government submit-

ted, inter alia,

The Flatow Amendment does not provide a

cause of action against foreign nations or their

governmentsTTTT Quite unambiguously, the

statute provides a cause of action against indi-

vidual ‘‘official[s], employee[s], or agent[s]’’ of

foreign states for the acts of terrorism in which

they have taken part, but not against foreign

states themselves.

The United States’ Motion to Vacate Default Judg-

ment and Dismiss Plaintiffs’ Claims at 20-21, Roeder

v. Islamic Republic of Iran, 195 F. Supp. 2d 140

(D.D.C. 2002) (Civ. No. 00-3110 EGS). In a later

submission in Roeder, the Government further sub-

mitted that,

as the United States observed previously, the

plain language of the Flatow Amendment pro-

vides the victims of terrorist acts a cause of

action against the ‘‘official[s], employee[s] or

agent[s] of a foreign state’’ who commit such

acts, not against the foreign state itself.

Reply Memorandum in Support of the United

States’ Motion to Vacate Default Judgment and

Dismiss Plaintiffs’ Claims at 17, Roeder v. Islamic

Republic of Iran, 195 F. Supp. 2d 140 (D.D.C. 2002)

(Civ. No. 00-3110 EGS).

The court hereby requests that the United States

indicate whether the Government’s position on the

scope of the cause of action under the Flatow

Amendment remains the same as indicated above,

and, if not, explain how and why the position of the

United States has changed.

11

Cicippio-Puleo v. Islamic Republic of Iran, No. 02-7085 (D.C.

Cir. Nov. 5, 2003) (order requesting statement of United

States).

After receiving a two-day extension of time in which to

submit its position, the United States filed a brief as amicus

curiae on December 3, 2003, stating the firm view that the

Flatow Amendment does not provide a private right of action

against a foreign state:

Neither Section 1605(a)(7) nor the Flatow Amend-

ment, nor the two considered in tandem, offers any

indication that Congress intended to take the more

provocative step of creating a private right of action

against foreign governments themselves. Such a

move could have serious adverse consequences for

the conduct of foreign relations by the Executive

Branch, and therefore an intent to do so should not

be inferred – it should be recognized only if Con-

gress has acted clearly in that direction.

Br. for the United States as Amicus Curiae at 5.

II. ANALYSIS

A. Standard of Review

In denying plaintiffs’ motion for summary judgment and in

sua sponte dismissing their complaint pursuant to Rule 12

(b)(6), the District Court assumed that plaintiffs’ factual

allegations were true. The standard of review covering both

the denial of summary judgment and the dismissal for failure

to state a claim is the same – de novo. Sturdza v. United

Arab Emirates, 281 F.3d 1287, 1293 (D.C. Cir. 2002) (citing

Wilson v. Pena, 79 F.3d 154, 160 n.1 (D.C. Cir. 1996)). And

we may affirm a district court’s sua sponte dismissal for

failure to state a claim if it appears beyond a doubt that the

plaintiffs can prove no set of facts that would entitle them to

relief. See Baker v. Dir., United States Parole Comm’n, 916

F.2d 725, 726 (D.C. Cir. 1990). Because we hold that the

Flatow Amendment does not authorize a cause of action

against foreign states, it is clear that plaintiffs can allege no

12

facts in their lawsuit against Iran that would entitle them to

relief under the Flatow Amendment. Therefore, we affirm

the District Court’s dismissal for failure to state a claim

under section 1605(a)(7) and the Flatow Amendment.

B. The Limited Cause of Action under the Flatow

Amendment

Section 1605(a)(7) waives the sovereign immunity of a

designated ‘‘foreign state’’ in actions in which money damages

are sought for personal injury or death caused by one of the

specified acts of terrorism, if the act of terrorism or provision

of material support is engaged in by ‘‘an official, employee, or

agent of such foreign state while acting within the scope of

his or her office, employment, or agency.’’ 28 U.S.C.

§ 1605(a)(7). Section 1605(a)(7) is merely a jurisdiction-

conferring provision that does not otherwise provide a cause

of action against either a foreign state or its agents. Howev-

er, the Flatow Amendment, 28 U.S.C. § 1605 note, undoubt-

edly does provide a cause of action against ‘‘[a]n official,

employee, or agent of a foreign state designated as a state

sponsor of terrorism’’ ‘‘for personal injury or death caused by

acts of that official, employee, or agent for which the courts of

the United States may maintain jurisdiction under section

1605(a)(7).’’ The question here is whether the Flatow

Amendment, which does not refer to ‘‘foreign state,’’ may be

construed, either alone or in conjunction with section

1605(a)(7), to provide a cause of action against a foreign state.

This issue was flagged in Price v. Socialist People’s Arab

Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002), where we observed

that

[t]he FSIA is undoubtedly a jurisdictional statute

which, in specified cases, eliminates foreign sover-

eign immunity and opens the door to subject matter

jurisdiction in the federal courts. See First Nat’l

City Bank v. Banco Para El Comercio Exterior de

Cuba, 462 U.S. 611, 620, 103 S. Ct. 2591, 2596-97, 77

L.Ed.2d 46 (1983). There is a question, however,

whether the FSIA creates a federal cause of action

13

for torture and hostage taking against foreign

states.

Id. at 87. Since Price, some district court opinions in this

circuit have held or assumed that the Flatow Amendment

creates a cause of action against foreign states. See Cronin

v. Islamic Republic of Iran, 238 F. Supp. 2d 222, 231 (D.D.C.

2002) (holding that the Flatow Amendment provides a cause

of action against a foreign state). See also Regier v. Islamic

Republic of Iran, 281 F. Supp. 2d 87, 98-99 (D.D.C. 2003)

(adopting Cronin’s reasoning that there is a cause of action

against foreign states under the Flatow Amendment); Kil-

burn v. Islamic Republic of Iran, 277 F. Supp. 2d 24, 36-37

(D.D.C. 2003) (same).

This court, however, has never affirmed a judgment that

the Flatow Amendment, either alone or in conjunction with

section 1605(a)(7), provides a cause of action against a foreign

state. The issue was raised in Bettis v. Islamic Republic of

Iran, 315 F.3d 325, 333 (D.C. Cir. 2003), but the appeal was

resolved on other grounds. In Roeder v. Islamic Republic of

Iran, 333 F.3d 228 (D.C. Cir. 2003), the court noted that, ‘‘[i]n

view of the Flatow amendment’s failure to mention the liabili-

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

substantive claim against a foreign state under the Foreign

Sovereign Immunities Act,’’ id. at 234 n.3, but that appeal was

also decided on other grounds.

We now hold that neither 28 U.S.C. § 1605(a)(7) nor the

Flatow Amendment, nor the two considered in tandem, cre-

ates a private right of action against a foreign government.

Section 1605(a)(7) merely waives the immunity of a foreign

state without creating a cause of action against it, and the

Flatow Amendment only provides a private right of action

against officials, employees, and agents of a foreign state, not

against the foreign state itself. Because we hold that there is

no statutory cause of action against Iran under these provi-

sions, we affirm the District Court’s judgment without decid-

ing whether the evidence presented by the plaintiffs is suffi-

cient to recover for intentional infliction of emotional distress

or loss of solatium.

14

* * * *

There is a clearly settled distinction in federal law between

statutory provisions that waive sovereign immunity and those

that create a cause of action. It cannot be assumed that a

claimant has a cause of action for damages against a govern-

ment agency merely because there has been a waiver of

sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 483-

84 (1994). As the Supreme Court has noted:

The first inquiry is whether there has been a waiver

of sovereign immunity. If there has been such a

waiver, as in this case, the second inquiry comes into

play–that is, whether the source of substantive law

upon which the claimant relies provides an avenue

for relief.

Id. at 484.

The Supreme Court has also made it clear that the federal

courts should be loathe to ‘‘imply’’ a cause of action from a

jurisdictional provision that ‘‘creates no cause of action of its

own force and effect TTT [and] imposes no liabilities.’’ See

Touche Ross & Co. v. Reddington, 442 U.S. 560, 577 (1979).

‘‘The ultimate question is one of congressional intent, not one

of whether this Court thinks that it can improve upon the

statutory scheme that Congress enacted into law.’’ Id. at

578. In adhering to this view, the Supreme Court has

declined to construe statutes to imply a cause of action where

Congress has not expressly provided one. See, e.g., Correc-

tional Servs. Corp. v. Malesko, 534 U.S. 61, 67 n.3 (2001)

(recognizing the Court’s retreat from its previous willingness

to imply a cause of action where Congress has not provided

one); Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (‘‘Like

substantive federal law itself, private rights of action to

enforce federal law must be created by Congress.’’).

Unsurprisingly, the Supreme Court has applied the distinc-

tion between immunity and liability in interpreting the FSIA

itself, explaining that ‘‘[t]he language and history of the FSIA

clearly establish that the Act was not intended to affect the

substantive law determining the liability of a foreign state or

15

instrumentality.’’ First Nat’l City Bank v. Banco Para El

Comercio Exterior de Cuba, 462 U.S. 611, 620 (1983). With

this case law to guide us, there can be little doubt of the

outcome in this case.

* * * *

The language of section 1605(a)(7) and the Flatow Amend-

ment – the only provisions upon which plaintiffs rely – is

clear. In declaring that ‘‘[a] foreign state shall not be im-

mune from the jurisdiction of courts of the United States or

of the States TTT,’’ 28 U.S.C. § 1605(a)(7) merely abrogates

the immunity of foreign states from the jurisdiction of the

courts in lawsuits for damages for certain enumerated acts of

terrorism. It does not impose liability or mention a cause of

action. The statute thus confers subject matter jurisdiction

on federal courts over such lawsuits, but does not create a

private right of action.

As noted above, the Flatow Amendment imposes liability

and creates a cause of action. But the liability imposed by

the provision is precisely limited to ‘‘an official, employee, or

agent of a foreign state designated as a state sponsor of

terrorism.’’ ‘‘Foreign states’’ are not within the compass of

the cause of action created by the Flatow Amendment. In

short, there is absolutely nothing in section 1605(a)(7) or the

Flatow Amendment that creates a cause of action against

foreign states for the enumerated acts of terrorism.

We also agree with the United States that, insofar as the

Flatow Amendment creates a private right of action against

officials, employees, and agents of foreign states, the cause of

action is limited to claims against those officials in their

individual, as opposed to their official, capacities:

As the Supreme Court repeatedly has explained, an

official-capacity claim against a government official

is in substance a claim against the government it-

self. See, e.g., Kentucky v. Graham, 473 U.S. 159,

165 (1985)TTTT By definition, a damages judgment

in an official-capacity suit is enforceable against the

state itself (and only against the state). See Gra-

16

ham, 473 U.S. at 166 TTT; see also Fed. R. Civ. P.

25(d)TTTT Thus, to construe the Flatow Amend-

ment as permitting official-capacity claims would

eviscerate the recognized distinction between suits

against governments and suits against individual

government officialsTTTT [T]he text of the the Fla-

tow Amendment and Section 1605(a)(7), as well as

all relevant background interpretive principles TTT

foreclose any such construction.

Br. for the United States as Amicus Curiae at 17.

* * * *

The plaintiffs and amicus curiae dispute both the meaning

and relevance of the legislative history of the FSIA or the

Flatow Amendment in support of their competing arguments

to the court. The legislative history is largely irrelevant,

however, because the statutory language is clear – nothing in

section 1605(a)(7) or the Flatow Amendment establishes a

cause of action against foreign states. And, as we explain

below, there is nothing in the legislative history that raises

any serious doubts about the meaning of the statute.

In 1976, the House Judiciary Committee Report explained

that the FSIA was ‘‘not intended to affect the substantive law

of liability.’’ H.R. REP. NO. 94-1487, at 12 (1976). It stated

that the statute was intended to preempt other federal or

state law that accorded sovereign immunity, and to discontin-

ue the practice of judicial deference to suggestions of immuni-

ty from the executive branch. Id. But the statute was not

intended to affect ‘‘the attribution of responsibility between or

among entities of a foreign state; for example, whether the

proper entity of a foreign state has been sued; or whether an

entity sued is liable in whole or in part for the claimed

wrong.’’ Id.

When Congress passed section 1605(a)(7), the Conference

Committee report explained:

This subtitle provides that nations designated as

state sponsors of terrorism under section 6(j) of the

17

Export Administration Act of 1979 will be amenable

to suit in U.S. courts for terrorist acts. It permits

U.S. federal courts to hear claims seeking money

damages for personal injury or death against such

nations and arising from terrorist acts they commit,

or direct to be committed, against American citizens

or nationals outside of the foreign state’s territory,

and for such acts within the state’s territory if the

state involved has refused to arbitrate the claim.

H.R. CONF. REP. NO. 104-518, at 112 (1996). It is noteworthy

that the legislative history does not say that section 1605(a)(7)

imposes liability against foreign states or create a cause of

action against them.

When Congress later passed the appropriations bill that

included the Flatow Amendment, there was very little legisla-

tive history purporting to explain the enactment. The Con-

ference Report said: ‘‘The conference agreement inserts lan-

guage expanding the scope of monetary damage awards

available to American victims of international terrorism. The

conferees intend that this section shall apply to cases pending

upon enactment of this Act.’’ H.R. CONF. REP. NO. 104-863, at

987 (1996). As the United States notes in its brief, ‘‘[o]n its

face, that statement addresses only issues of damages and

retroactivity, not the question whether foreign states are

proper defendants in the first place.’’ Br. for the United

States as Amicus Curiae at 12. We agree. Thus, the

legislative history of the Flatow Amendment is not inconsis-

tent with the clear terms of the statute.

Subsequent enactments by Congress providing for the pay-

ment or enforcement of judgments entered against foreign

states in cases brought under § 1605(a)(7) fail to establish

that Congress created a cause of action against foreign states.

See Victims of Trafficking and Violence Protection Act of

2000, Pub. L. No. 106-386, § 2002, 114 Stat. 1464, 1541-43;

Terrorism Risk Insurance Act of 2002, Pub. L. No. 107-297,

§ 201, 116 Stat. 2322, 2337-39. As we explained in Roeder,

these statutes merely provide for payment ‘‘if an individual

has a judgment against Iran,’’ but they do not address or

18

resolve the anterior question ‘‘whether plaintiffs are legally

entitled to such a judgment.’’ 333 F.3d at 239 (emphasis

added). It is entirely plausible for Congress to direct the

United States to compensate victims of terrorism without

purporting to establish or support a cause of action against

foreign state sponsors of terrorism.

* * **

There is nothing anomalous in Congress’s approach in

enacting the Flatow Amendment. As we noted in Price, the

passage of § 1605(a)(7) involved a delicate legislative compro-

mise. While Congress sought to create a judicial forum for

the compensation of victims and the punishment of terrorist

states, it proceeded with caution, in part due to executive

branch officials’ concern that other nations would respond by

subjecting the American government to suits in foreign coun-

tries. See Price, 294 F.3d at 89 (citing John F. Murphy, Civil

Liability for the Commission of International Crimes as an

Alternative to Criminal Prosecution, 12 HARV. HUM. RTS. J. 1,

35-37 (1999)).

The plaintiffs suggest that our construction of the Flatow

Amendment ‘‘w[ill] mean that what Congress gave with one

hand in section 1605(a)(7) it immediately took away with the

other in the Flatow Amendment.’’ See Cronin, 238 F. Supp.

2d at 232. We disagree. Section 1605(a)(7) does not purport

to grant victims of terrorism a cause of action against foreign

states, or against officials, employees, or agents of those

states acting in either their official or personal capacities.

Therefore, the Flatow Amendment’s authorization of a limited

cause of action against officials, employees, and agents acting

in their personal capacities takes nothing away from

§ 1605(a)(7). What § 1605(a)(7) does is to make it clear that

designated foreign state sponsors of terrorism will be amena-

ble to suits in United States courts for acts of terrorism in

cases in which there is a viable cause of action.

Clearly, Congress’s authorization of a cause of action

against officials, employees, and agents of a foreign state was

a significant step toward providing a judicial forum for the

19

compensation of terrorism victims. Recognizing a federal

cause of action against foreign states undoubtedly would be

an even greater step toward that end, but it is a step that

Congress has yet to take. And it is for Congress, not the

courts, to decide whether a cause of action should lie against

foreign states. Therefore, we decline to imply a cause of

action against foreign states when Congress has not expressly

recognized one in the language of section 1605(a)(7) or the

Flatow Amendment.

* * * *

Although we affirm the District Court’s dismissal of plain-

tiffs’ complaint for failure to state a claim under section

1605(a)(7) and the Flatow Amendment, we will nonetheless

remand the case. The Cicippios’ suit was filed in the wake of

judgments in favor of Mr. and Mrs. Cicippio and other

hostage victims, so they may have been misled in assuming

that the Flatow Amendment afforded a cause of action

against foreign state sponsors of terrorism. We will there-

fore remand the case to allow plaintiffs an opportunity to

amend their complaint to state a cause of action under some

other source of law, including state law, as the Kilburn amici

have suggested.

In remanding, we do not mean to suggest, one way or the

other, whether plaintiffs have a viable cause of action. The

possibility that an alternative source of law might support

such a claim was addressed only by amici, and we do not

ordinarily decide issues not raised by parties. See, e.g.,

Narragansett Indian Tribe v. Nat’l Indian Gaming Comm’n,

158 F.3d 1335, 1338 (D.C. Cir. 1998). Accordingly, we will

leave it to the District Court in the first instance to address

any amended complaint that is offered by plaintiffs.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the

District Court dismissing plaintiffs’ complaint for failure to

state a claim upon which relief can be granted, and remand

the case for further proceedings consistent with this opinion.