Simon v. Republic of Iraq

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 2007 Decided June 24, 2008

No. 06-7175

ROBERT SIMON, ET AL.,

APPELLANTS

v.

REPUBLIC OF IRAQ, ET AL.,

APPELLEES

Consolidated with

06-7178

Appeals from the United States District Court

for the District of Columbia

(No. 03cv00691)

(No. 03cv00888)

Michael Rips argued the cause for appellants. With him on

the briefs were Stephen A. Fennell, Anthony F. Cavanaugh,

Anthony A. Onorato, Justin B. Perri, and Alice Loughran.

Eric J. Hecker, Richard D. Emery, and Sarah Netburn were

on the brief for amici curiae Ethel Hurst, et al. in support of

appellants.

2

Lawrence H. Martin argued the cause for appellees. With

him on the briefs were Gare A. Smith, Sarah A. Altschuller,

Timothy B. Mills, and Jonathan S. Franklin.

Before: SENTELLE, Chief Judge, and GINSBURG and

BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: The plaintiffs in these two

consolidated actions sued Iraq, the Iraqi Intelligence Service,

and Saddam Hussein (together, Iraq) alleging they had tortured

and taken certain of them hostage during the 1990-91 Gulf War.

The plaintiffs relied upon 28 U.S.C. § 1605(a)(7), the exception

in the Foreign Sovereign Immunities Act (FSIA), § 1602 et seq.,

that allowed for lawsuits against state sponsors of terrorism.

The district court dismissed the actions as untimely and the

plaintiffs appealed. Iraq defends the district court’s

interpretation of the time limitation in the FSIA and alternatively

invokes the political question doctrine.

After this appeal was briefed and argued, the Congress

passed the National Defense Authorization Act for Fiscal Year

2008 (NDAA), Pub. L. No. 110-181, 122 Stat. 3, § 1083 of

which revised the terrorism exception to sovereign immunity by

repealing § 1605(a)(7) of Title 28 and adding a new exception

to be codified at § 1605A of Title 28. Section 1083(d) of the

NDAA granted the President the authority to waive § 1083 with

respect to Iraq, which he promptly did.

For the reasons that follow, we conclude the plaintiffs may

maintain these suits pursuant to § 1605(a)(7), and their cases are

timely and justiciable. Accordingly, we remand these matters to

the district court for further proceedings.

3

I. Background

In 1996 the Congress amended the FSIA to abrogate in

certain respects the sovereign immunity of any foreign state the

Secretary of State designates a sponsor of terrorism.

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132, § 221, 110 Stat. 1214, 1241-43 (codified at 28

U.S.C. § 1605(a)(7)); see also 28 U.S.C. § 1604 (granting

immunity to foreign states, their agencies, and their

instrumentalities). As amended, § 1605(a)(7) provided in part

that a foreign state was not immune from an action for damages

“for personal injury ... caused by an act of torture ... [or] hostage

taking” to a U.S. national if the foreign state had been

“designated as a state sponsor of terrorism ... at the time the act

occurred” and the plaintiff had given the foreign state “a

reasonable opportunity to arbitrate the claim.” The statute

defined torture and hostage taking, see §§ 1605(e), 1350 note, by

reference to the Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment art. 1(1), Dec.

10, 1984, 1465 U.N.T.S. 85, and the International Convention

Against the Taking of Hostages art. 1, Dec. 17, 1979, T.I.A.S.

No. 11081, 1316 U.N.T.S. 205.

The plaintiffs filed their actions in 2003 and duly invoked

§ 1605(a)(7). Their amended complaints alleged that in 1990

and 1991 the defendants had tortured certain of the plaintiffs and

held them hostage, in violation of local, federal, and

international law; the other plaintiffs, members of the alleged

victims’ families, sued for intentional infliction of emotional

distress. Iraq was at all relevant times a designated state sponsor

of terrorism, 55 Fed. Reg. 37,793 (Sept. 13, 1990), and the

complaints alleged the plaintiffs had offered Iraq the opportunity

to arbitrate the disputes.

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Iraq and the Iraqi Intelligence Service filed motions to

dismiss both cases on the grounds that the actions were untimely

under § 1605(f), which provides a limitation period of ten years

for any action under § 1605(a)(7); the plaintiffs had failed to

state a claim upon which relief could be granted; and the

political question doctrine barred the court from proceeding.

The district court held the two actions did not raise political

questions but dismissed them as untimely. Vine v. Republic of

Iraq, 459 F. Supp. 2d 10 (2006).

II. Analysis

On appeal, Iraq newly contends the recent enactment of the

NDAA and the President’s waiver of § 1083 thereof require the

dismissal of these cases. Alternatively, Iraq argues the cases

were untimely filed and are barred by the political question

doctrine. Addressing the issues of law de novo, we reject each

of Iraq’s contentions.

A. NDAA 2008

On December 14, 2007 the Congress passed the first version

of the NDAA, § 1083 of which would have amended the

terrorism exception to foreign sovereign immunity by striking

28 U.S.C. § 1605(a)(7), the exception upon which the plaintiffs

relied, and enacting a new exception, to be codified at 28 U.S.C.

§ 1605A. President Bush sought to “pocket veto” the bill

because he believed § 1083 would threaten the reconstruction of

Iraq:

[S]ection 1083 would risk the freezing of substantial Iraqi

assets in the United States .... Section 1083 also would

expose Iraq to new liability of at least several billion dollars

by undoing judgments favorable to Iraq, by foreclosing

available defenses on which Iraq is relying in pending

5

litigation, and by creating a new Federal cause of action

backed by the prospect of punitive damages to support

claims that may previously have been foreclosed.

Memorandum of Disapproval, 43 WEEKLY COMP. PRES. DOC.

1641, 1641 (Dec. 28, 2007).

The Congress subsequently passed a revised version of the

NDAA, which included a new provision (§ 1083(d)) that

authorized the President, upon making certain findings, to

“waive any provision of [§ 1083 of the NDAA] with respect to

Iraq.” The President signed that bill into law and promptly

exercised his authority under § 1083(d)(1) to waive “all

provisions of section 1083 with respect to Iraq, and all agencies

and instrumentalities thereof.” Presidential Determination No.

2008-9, 73 Fed. Reg. 6571 (Jan. 28, 2008).* Iraq contends the

enactment of the NDAA and the President’s waiver of § 1083

with respect to Iraq stripped the federal courts of jurisdiction

over these cases; the plaintiffs disagree, of course.

Section 1083(a) of the NDAA, which amended the FSIA by

creating new § 1605A of Title 28, contains an exception to the

grant of sovereign immunity similar to that in former

§ 1605(a)(7) but more advantageous to plaintiffs in several

respects. For instance, it precludes a foreign state from filing an

interlocutory appeal under the “collateral order” doctrine,

*

The President had to and did find that “waiver is in the

national security interest of the United States” and “will promote

the reconstruction of, the consolidation of democracy in, and the

relations of the United States with, Iraq,” and that “Iraq

continues to be a reliable ally of the United States and partner in

combating acts of international terrorism.” NDAA § 1083(d)(1);

see 73 Fed. Reg. at 6571 (so finding).

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§ 1605A(f), and permits a plaintiff to attach property in advance

of judgment, § 1605A(g). In addition, § 1605A(c) abrogates

Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C.

Cir. 2004), by creating a federal right of action against foreign

states, for which punitive damages may be awarded.

Iraq argues that because § 1083(b)(1) of the NDAA repeals

§ 1605(a)(7) of the FSIA, upon which the present cases were

founded, we must dismiss these cases for want of jurisdiction.

See 28 U.S.C. §§ 1330(a), 1604 (jurisdiction over case against

foreign sovereign depends upon exception to immunity).

Further, according to Iraq, the President’s waiver of § 1083 of

the NDAA prevents the plaintiffs from refiling their cases under

the jurisdiction conferred by new § 1605A.

A statute removing federal jurisdiction presumptively

applies to pending cases because such a statute “usually ‘takes

away no substantive right but simply changes the tribunal that

is to hear the case.’” Hamdan v. Rumsfeld, 126 S. Ct. 2749,

2765 (2006) (quoting Hallowell v. Commons, 239 U.S. 506, 508

(1916)); see also Hughes Aircraft Co. v. United States ex rel.

Schumer, 520 U.S. 939, 951 (1997). In contrast, a statute that

retroactively alters the consequences of primary conduct -- as by

“impair[ing] rights a party possessed when he acted, increas[ing]

a party’s liability for past conduct, or impos[ing] new duties

with respect to transactions already completed,” Landgraf v. USI

Film Prods., 511 U.S. 244, 280 (1994) -- is presumptively non-

retroactive; such a statute applies to a pending case only if the

Congress clearly so provides.

The FSIA speaks to the jurisdiction of the federal courts,

but it also governs the immunity of foreign states in any U.S.

forum. See 28 U.S.C. § 1604 (“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

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chapter”); cf. Hughes Aircraft Co., 520 U.S. at 951 (“statutes

affect[ing] ... whether [a suit] may be brought at all ... speak[]

not just to the power of a particular court but to the substantive

rights of the parties as well” and are therefore “subject to [the]

presumption against retroactivity”). Accordingly, it is not clear

which presumption might apply, if any is needed. In this case,

however, it is unnecessary to invoke either presumption because

§ 1083 makes several references to pending cases and we need

not look beyond the text and structure of the NDAA to ascertain

its effect upon cases brought under § 1605(a)(7). Accord

Hamdan, 126 S. Ct. at 2762-69 (holding, based upon “[o]rdinary

principles of statutory construction,” the provision of the

Detainee Treatment Act of 2005, Pub. L. No. 109-148, Title X,

119 Stat. 2680, 2739-44, that deprived the courts of jurisdiction

over habeas petitions filed by persons detained at Guantánamo

Bay did not apply to habeas cases pending when it was enacted).

For the reasons that follow, we conclude that the courts retained

jurisdiction over cases pending pursuant to former § 1605(a)(7)

when the Congress enacted the NDAA. Cf. Republic of Austria

v. Altmann, 541 U.S. 677, 697-700 (2004) (applying ordinary

principles of construction to decide whether FSIA, which

codified immunity of foreign sovereigns, applies to conduct

predating statute).

We note first that the new terrorism exception in § 1605A

by its terms does not provide a substitute basis for jurisdiction

over all cases pending under § 1605(a)(7) when § 1605A

replaced it. The new provision deprives a foreign sovereign of

immunity to suit only if

(I) the foreign state was designated as a state sponsor of

terrorism at the time the act [giving rise to the suit]

occurred, or was so designated as a result of such act, and,

subject to subclause (II), either remains so designated when

the claim is filed under this section or was so designated

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within the 6-month period before the claim is filed under

this section; or

(II) in the case of an action that is refiled under this section

by reason of section 1083(c)(2)(A) of the [NDAA for] 2008

or is filed under this section by reason of section 1083(c)(3)

of that Act, the foreign state was designated as a state

sponsor of terrorism when the original action or the related

action under section 1605(a)(7) (as in effect before the

enactment of this section) ... was filed.

28 U.S.C. § 1605A(a)(2)(A)(i). Inasmuch as this provision

expressly distinguishes between cases “filed under this section”

-- i.e., § 1605A -- and cases “filed under section 1605(a)(7)” of

the pre-amendment Act, a pending case obviously cannot be said

to have been “filed under” the new provision. Therefore, the

plaintiff in a case pending under § 1605(a)(7) may not maintain

that action based upon the jurisdiction conferred by § 1605A; in

order to claim the benefits of § 1605A, the plaintiff must file a

new action under that new provision.

Because the courts have no jurisdiction of a case against a

foreign sovereign absent an exception to the grant of immunity

in the FSIA, and because § 1605A does not provide that

exception for pending cases, Iraq contends the NDAA requires

the dismissal of these cases. The plaintiffs, on the other hand,

argue that § 1605(a)(7) remains a viable exception to immunity

for cases, such as these, filed when it was the source of our

jurisdiction. Based upon the following analysis of NDAA

§§ 1083(c) (“Application to Pending Cases”) and 1083(d)

(“Applicability to Iraq”), we hold the courts retain jurisdiction

pursuant to § 1605(a)(7) over cases that were pending under that

section when the Congress enacted the NDAA.

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Section 1083(c)(1). The first subsection of § 1083(c)

provides: “The amendments made by this section [1083] shall

apply to any claim arising under section 1605A.” Because, as

we have said, a claim pending under former § 1605(a)(7) when

the NDAA became law did not “aris[e] under section 1605A,”

cf. Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257,

260 (1916) (“A suit arises under the law that creates the cause

of action”), it is apparent that the 2008 amendments, including

the “conforming amendments” that strike former § 1605(a)(7),

see NDAA § 1083(b), do not apply to any claim then “pending”

under that provision. Moreover, reading the Act to extinguish

jurisdiction over cases pending under § 1605(a)(7) when the

NDAA became law would render § 1083(c)(1) nugatory: There

would be no need to specify “the amendments ... apply to any

claim arising under section 1605A” for the amendments

obviously would apply to any such claim and could apply to no

other claim; as we interpret it, however, § 1083(c)(1) makes

clear the “amendments” apply to any claim under § 1605A, but

to no “pending” claims.*

Sections 1083(c)(2) and (c)(3). Plaintiffs with “pending

cases” may invoke new § 1605A in certain circumstances.

Pursuant to § 1083(c)(2) (“Prior Actions”), a plaintiff who

detrimentally “relied upon” former § 1605(a)(7) of the FSIA “as

creating a cause of action” and whose action was “pending

before the courts in any form” when the NDAA became law was

given 60 days within which to “refile” his suit based upon the

new cause of action created by § 1605A(c). See also 28 U.S.C.

§ 1605A(a)(2)(A)(i)(II) (providing exception to immunity for

*

In consequence, only a plaintiff prosecuting an action

under new § 1605A of the FSIA can claim the benefits of that

section, such as prejudgment attachment of the defendant’s

property.

10

“original action” that is “refiled ... by reason of section

1083(c)(2)(A)”). Section 1083(c)(3) of the NDAA (“Related

Actions”) authorizes a plaintiff who had “timely commenced”

a “related action” under § 1605(a)(7) to bring “any other action

arising out of the same act or incident,” provided “the [new]

action is commenced” within 60 days from the later of “(A) the

date of the entry of judgment in the original action or (B) the

date of the enactment of [the NDAA].”

These “transition rules,” as Iraq calls them, cannot be

squared with Iraq’s position that the NDAA requires the

dismissal of pending cases. The 60-day limit in § 1083(c)(3)

implies a court could, after enactment of the NDAA, still enter

judgment in an action filed under § 1605(a)(7). Iraq argues that

in this context “entry of judgment” means only dismissal for

want of jurisdiction rather than the entry of a judgment on the

merits, but nothing in the text of § 1083 suggests the phrase has

such a narrow meaning, cf. BLACK’S LAW DICTIONARY (8th ed.

2004) (defining “judgment” to mean judgment on the merits),

and the structure of the NDAA indicates precisely the opposite.

New § 1605A(a)(2)(A)(i)(II) of the FSIA refers to a pending

“original action” being “refiled ... by reason of section

1083(c)(2)(A)” of the NDAA while referring to a new action

being “filed ... by reason of section 1083(c)(3)” if a pending

“related action” had been timely commenced, see 28 U.S.C.

§ 1605A(b), which implies the Congress understood that the

courts would retain jurisdiction over the original “related action”

described in § 1083(c)(3). That explains why the 60-day period

for invoking § 1083(c)(2) began with the enactment of the

NDAA, see § 1083(c)(2)(C)(ii), whereas the 60-day period in

§ 1083(c)(3) may run from “the date of the entry of judgment”

in the “related action,” which could be well after the enactment

of the NDAA.

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There would be no reason for the Congress to have tied the

60-day period in § 1083(c)(3) to the date of “entry of judgment”

in a case pending under § 1605(a)(7) when the NDAA became

law if, as Iraq argues, the quoted words mean only a dismissal

for want of jurisdiction and the Act requires the dismissal of all

pending cases. The text and structure of the NDAA thus compel

the conclusion that, notwithstanding the enactment of the

NDAA, a court still may enter a judgment on the merits in such

a case, which it could not do if it did not have jurisdiction over

the case. See, e.g., Ex parte McCardle, 74 U.S. (7 Wall.) 506,

514 (1868) (“Jurisdiction is power to declare the law, and when

it ceases to exist, the only function remaining to the court is that

of announcing the fact and dismissing the cause”). Because new

§ 1605A is inapplicable, that jurisdiction over pending cases can

be founded only upon former § 1605(a)(7).*

Section 1083(c)(4). The final provision of § 1083(c) also is

instructive. In 2003 the President acted under the Emergency

Wartime Supplemental Appropriations Act of 2003 (EWSAA),

Pub. L. No. 108-11, § 1503, 117 Stat. 559, 579, to “make

inapplicable with respect to Iraq ... any ... provision of law that

applies to countries that have supported terrorism.” Presidential

Determination No. 2003-23, 68 Fed. Reg. 26,459 (May 7, 2003).

*

Iraq argues also that the 60-day rule authorizes the

refiling of claims under § 1605A within 60 days following the

date of entry of “judgment on claims involving non-sovereign

parties or a different exception to sovereign immunity

unaffected by Section 1083.” That is clearly wrong. The 60-day

period is tied to “the date of the entry of judgment in [an]

original action” that was “timely commenced under section

1605(a)(7),” NDAA § 1083(c)(3); § 1605(a)(7) permits suits

only against sovereign states, leaving no room for a case brought

under “a different exception to sovereign immunity.”

12

In Acree v. Republic of Iraq, 370 F.3d 41 (2004), however, we

held that the EWSAA did not authorize the President to suspend

former § 1605(a)(7) with respect to Iraq. Paragraph (4)

(“Preserving the Jurisdiction of the Courts”) of subsection

1083(c) (“Application to Pending Cases”) ratifies that holding:

“Nothing in section 1503 of the [EWSAA] ... has ever

authorized” the President to “mak[e] inapplicable ... any

provision of [the FSIA or to] remov[e] ... the jurisdiction” of the

federal courts. Thus both the text and the context of this

provision make clear the Congress was intent upon “preserving”

the courts’ jurisdiction over “pending cases,” which could only

mean cases filed under former § 1605(a)(7).

Section 1083(d)(1). This section authorizes the President to

“waive any provision of ... section [1083 of the NDAA] with

respect to Iraq.” If a suit against Iraq for terrorist acts could

proceed only under § 1605A, as Iraq maintains, then the

President could use § 1083(d)(1) to deprive the courts of

jurisdiction and would have no reason ever to invoke the

EWSAA; § 1083(c)(4) would be surplusage. Cf. Duncan v.

Walker, 533 U.S. 167, 174 (2001) (we must “give effect ... to

every clause and word of [the] statute”).* Moreover,

§ 1083(d)(2)(C), which provides that the President’s waiver

authority applies “regardless of whether ... that authority affects

any action filed before ... enactment of the [NDAA],” would be

unnecessary if the Act deprived the courts of jurisdiction over

pending cases.

*

Iraq has not been designated a state sponsor of

terrorism since 2004. 69 Fed. Reg. 61,702 (Oct. 20, 2004).

Accordingly, even absent the President’s waiver, no new action

could have been filed against Iraq unless a prior or a related

action was pending. See 28 U.S.C. § 1605A(a)(2)(A)(i).

13

Reading the NDAA, as we do, to leave intact jurisdiction

over cases pending under former § 1605(a)(7) gives meaning

both to § 1083(c)(4) and to § 1083(d) and makes sense of the

relation between them. Section 1083(c)(4) clarifies that the

President has no authority under the EWSAA to limit the

jurisdiction of the courts over cases against Iraq. Section

1083(d)(1) then grants the President the authority to render

inapplicable those provisions of the NDAA to which President

Bush had objected when he vetoed the first version of the

NDAA.*

* * *

Cognizant of the President’s concerns and of the potential

implications of our holding upon the foreign affairs of the

United States, we do not lightly conclude the NDAA leaves

intact our jurisdiction over cases, such as these, that were

pending against Iraq when the Congress enacted the NDAA.

Nonetheless, the NDAA fairly compels the conclusion that the

plaintiffs may proceed on the basis of former § 1605(a)(7). It

follows that the President’s waiver of § 1083 of the NDAA with

respect to Iraq affects neither the jurisdiction of the district court

over cases pending under § 1605(a)(7) nor the issues presented

on this appeal.**

*

The President raised the same concerns when he

exercised his waiver authority. 73 Fed. Reg. 6571 (discussing

same non-jurisdictional implications).

**

We have no occasion, therefore, to address the

plaintiffs’ alternative argument that the President left

§ 1605(a)(7) intact by waiving “all” provisions of § 1083

including subsection (b)(1)(A)(iii), which repeals former

§ 1605(a)(7).

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B. Timeliness

The jurisdictional provision upon which the plaintiffs rely

contains a limitation period:

No action shall be maintained under [§ 1605(a)(7)] unless

the action is commenced not later than 10 years after the

date on which the cause of action arose. All principles of

equitable tolling, including the period during which the

foreign state was immune from suit, shall apply in

calculating this limitation period.

28 U.S.C. § 1605(f) (2007). The plaintiffs contend their actions,

which they filed in 2003, are timely even though the alleged

torts occurred more than ten years earlier, in 1990 and 1991.

They argue first that their causes of action did not arise, and the

ten-year limitation therefore did not begin to run, until 1996,

because they could not have sued Iraq before then. They

contend alternatively that the ten-year limitation period was

equitably tolled until 1996; more precisely, they argue § 1605(f)

requires that we extend the period of limitation by “the period

during which [Iraq] was immune from suit.” We agree with

their alternative argument and, accordingly, need not reach the

(rather strained) argument that their claims did not arise until

1996.

Section 1605(f) expressly incorporates “principles of

equitable tolling.” Iraq argues -- and we do not disagree -- the

statute thereby incorporates the relevant common law.

According to Iraq that means the plaintiffs are entitled only to a

“reasonable” extension of the statute of limitations, Phillips v.

Heine, 984 F.2d 489 (D.C. Cir. 1993); the suits would then be

untimely -- assuming, as we do for the sake of the argument, the

plaintiffs’ causes of action arose in 1990 and 1991 -- because the

plaintiffs have not demonstrated they reasonably required an

15

extension to 2003, two or three years beyond the expiration of

the statute of limitations, in order to bring their cases.

It seems, however, we have not applied the doctrine of

equitable tolling consistently in the manner Iraq suggests. In

Phillips, upon which Iraq relies, we held that “tolling does not

bring about an automatic extension of the statute of limitations

by the length of the tolling period. ... It gives the plaintiff extra

time only if he needs it,” 984 F.2d at 492; that is, the plaintiff

obtains a “reasonable” extension. In United States v. Saro, 252

F.3d 449 (2001), in contrast, we held that equitable tolling stops

the clock for the duration of a tolling event. Id. at 454 (citing

United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (dictum)); see

Calvin W. Corman, Limitation of Actions § 8.2 (1991) (“When

the commencement of an action is stayed due to statutory

prohibition, the period of the stay is not included in the

calculation of the limitation period”); cf. Burnett v. N.Y. Cent.

R.R. Co., 380 U.S. 424, 434-35 (1965) (equitable tolling, rather

than giving plaintiff a “reasonable” extension of statute of

limitations in FELA, stops clock for duration of tolling event).

Saro and Phillips undoubtedly conflict, and our subsequent

cases do not resolve the conflict. In Chung v. DOJ, upon

holding the distinct doctrine of equitable estoppel (which is

based upon the conduct of the defendant) did not extend the

statute of limitations on the facts of that case, we left it to the

district court on remand to decide, à la Phillips, whether the

plaintiff was entitled to a “reasonable” extension of the statute

of limitations under the doctrine of equitable tolling. 333 F.3d

273, 278-80 (2003). We did not notice the conflict between

Saro and Phillips. We now see not only the intra-circuit but also

an inter-circuit inconsistency. Compare Cada v. Baxter

Healthcare Corp., 920 F.2d 446, 452 (7th Cir. 1991) (tolling

provides a reasonable extension), with Socop-Gonzalez v. INS,

16

272 F.3d 1176, 1193-96 (9th Cir. 2001) (en banc) (tolling stops

the clock).

We need not resolve our home-grown conflict in this case

because the statute is clear: We “include,” i.e., add, “the period

during which [Iraq] was immune from suit”; hence cases filed in

2003 are timely.* Iraq asserts that, because we narrowly

interpret the waiver of immunity by a sovereign state, see, e.g.,

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 94 (1990)

(waiver by the United States); World Wide Minerals, Ltd. v.

Republic of Kazakhstan, 296 F.3d 1154, 1162 (D.C. Cir. 2002)

(waiver by foreign state), we ought strictly to interpret § 1605(f)

and limit Iraq’s exposure by following Phillips. Cases on the

scope of a waiver with its consequences for the fisc are

inapposite, however, for the Congress did not waive Iraq’s

sovereign immunity in enacting § 1605(a)(7); only the sovereign

can forswear the sovereign’s legal rights. In the terrorism

exception the Congress qualified the statutory grant of immunity

to Iraq, itself a matter of “grace and comity.” Verlinden B.V. v.

Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983). Iraq has

pointed to no authority suggesting the Congress intended courts

to read § 1605(f) any more narrowly than its terms suggest; nor

are we aware of any case in which a court presumed or

suggested exceptions to foreign sovereign immunity should be

construed narrowly. Cf. Saudi Arabia v. Nelson, 507 U.S. 349,

356-58 (1993) (using ordinary methods of construction to

interpret exception in § 1605(a)(2)).

*

Nor need we decide whether the statute would call for

the application of state rather than federal common law,

whatever the latter may be, with regard to equitable tolling. Erie

R.R. Co. v. Tompkins, 304 U.S. 64 (1938); 28 U.S.C. § 1652; see

also United States v. Yazell, 382 U.S. 341 (1966) (applying state

law in interstices of federal statute).

17

We are therefore left to interpret the plain text of § 1605(f)

unencumbered by any special canons of construction, and the

text makes clear Iraq’s interpretation must fail. Section 1605(f)

invokes the “principles of equitable tolling” and expressly

requires that in “calculating [the ten-year] limitation period” we

“includ[e] the period during which [Iraq] was immune from

suit.” To say the plaintiffs were entitled only to a reasonable

term after the ten-year period ran out in 2000 or 2001 would not

fulfill the mandate that we “includ[e]” the five or six years of

Iraq’s immunity in the calculation of the limitations period.

Thus, to read the statute as Iraq insists would deprive the quoted

phrases of their plain meaning.

The Congress first amended the FSIA to add a terrorism

exception in 1996, before which Iraq was “immune from suit”;

hence the limitation period in § 1605(f) began to run in 1996 and

expired in 2006. Accordingly, the plaintiffs timely filed their

actions in 2003.

C. Political Question Doctrine

Iraq asserts that the present cases are barred by the political

question doctrine, for which proposition it points to several of

the President’s statements suggesting this action is contrary to

the foreign policy of the United States.* We have already noted

*

Iraq’s principal argument does not assume the

President’s statements have the force of law. Iraq’s alternative

argument is that certain of those statements do have the force of

law because the President was acting under the EWSAA. Our

decision in Acree, of course, renders the latter argument beyond

the reach of the panel and Iraq makes it only to preserve it for

rehearing by the court en banc. For the same reason, we do not

address Iraq’s further argument that the President has waived

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and quoted Presidential Determination 2003-23 under the

EWSAA. 68 Fed. Reg. 26,459. The President also issued

Executive Order 13,303 declaring that “the threat of attachment

or other judicial process” against Iraqi oil interests “obstructs the

orderly reconstruction of Iraq,” 68 Fed. Reg. 31,931 (May 22,

2003), and sent a message to the Congress stating that he had

used his authority under the EWSAA to make § 1605(a)(7)

inapplicable to Iraq because the “threat of attachment or other

judicial process” against Iraqi oil assets “constituted an unusual

and extraordinary threat to the national security and foreign

policy of the United States.” 39 WEEKLY COMP. PRES. DOC.

647, 647-48 (May 22, 2003).

In addition, Iraq points to an unenacted version of the

Foreign Relations Authorization Act of 2004, see S. 925, 108th

Cong. § 811 (2003), asserting that the Congress “voiced its

support for the President’s determination” that suits such as

these are contrary to the foreign policy of the United States. The

Senate Foreign Relations Committee approved that bill, but the

Committee does not speak for the Congress, which last spoke to

this subject when it enacted the NDAA. Therefore, we confine

our analysis to the President’s position that the threat of a

monetary judgment against Iraq contravenes the foreign policy

of the United States.

The federal courts may not pass upon a question the

Constitution commits to the political branches. See Baker v.

Carr, 369 U.S. 186, 217 (1962); see also id. at 211-13. In

Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2005), for

instance, foreign plaintiffs alleged that Japanese soldiers had

subjected them to torture and sexual slavery in violation of

§ 1083(c)(4) of the NDAA with respect to Iraq; even if the

statute were waived, the panel would still be bound by Acree.

19

international law. Japan and the plaintiffs debated whether the

treaties between Japan and the countries from which the

plaintiffs came extinguished their claims. We held the political

branches alone could resolve that dispute because it “concerns

the United States only with respect to her foreign relations.” Id.

at 51-52.

To be sure, the foreign policy considerations Iraq raises are

important, as the President’s actions and statements make clear.

But Iraq has not explained how adjudicating the question

whether Iraq committed acts of torture and hostage taking in

1990-91 requires the court to address any question the

Constitution commits to the political branches. Indeed, Iraq

does nothing more than assert that this action may affect the

foreign relations of the United States, but that is surely not

enough. Baker, 369 U.S. at 211 (“[I]t is error to suppose that

every case or controversy which touches foreign relations lies

beyond judicial cognizance”). The political question doctrine

does not call upon us to decide whether a lawsuit that raises only

justiciable questions contravenes the foreign policy of the

United States; if the political branches decide tort suits against

a foreign sovereign are contrary to the foreign policy of the

Nation, then they may by law remove them from our

jurisdiction.

Nor has Iraq explained how the President, by making

general statements or taking actions not specific to these cases,

can set to naught a duly enacted jurisdictional statute.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634,

637-38 (1952) (Jackson, J., concurring) (“When the President

takes measures incompatible with the expressed or implied will

of Congress, his power is at its lowest ebb, for then he can rely

only upon his own constitutional powers minus any

constitutional powers of Congress over the matter. Courts can

sustain exclusive Presidential control in such a case only by

20

disabling the Congress from acting upon the subject.”); see also

Altmann, 541 U.S. at 702 (noting the FSIA “might well” require

a court to defer to a statement of interest filed by the Department

of State in a particular case). The Congress has given the courts

of the United States the jurisdiction to decide the legal issues

and factual questions raised by the plaintiffs’ allegations, which

sound in tort; accordingly the courts have the duty to proceed to

the extent the actions are justiciable. See Cohens v. Virginia, 19

U.S. (6 Wheat.) 264, 404 (1821) (“It is most true, that this court

will not take jurisdiction if it should not: but it is equally true,

that it must take jurisdiction, if it should”). The present actions

undoubtedly present questions fit for judicial determination

under Article III -- to wit, whether in 1990-91 Iraq committed

the torts alleged -- regardless whether their resolution might

affect the foreign relations of the Nation.

III. Conclusion

In sum, we hold that neither § 1083 of the NDAA nor the

President’s waiver under § 1083(d) thereof deprives the courts

of jurisdiction over these cases, which were pending under

§ 1605(a)(7) when the NDAA went into effect. Because the

instant actions were timely filed and justiciable, we reverse the

judgment of the district court and remand these cases to the

district court for further proceedings consistent herewith.

So ordered.