Opinion

In Re Islamic Republic of Iran Terrorism Litigation

659 F. Supp. 2d 31
2009 U.S. Dist. LEXIS 92597
2009 WL 3112136

Court: District Court, District of Columbia
Filed: Sep 30, 2009
Status: Published
Author: Lamberth
On the bench: Royce C. Lamberth
Cited by: 135 cases
Authority: More cited than 93.3%

holding that *124 “§ 1083(e)(3) enables plaintiffs who achieved final judgments under the former terrorism exception, § 1605(a)(7), to pursue new federal causes of action under § 1605A based on the same prior act or incident,” and thereby “offers an avenue of relief in those cases that reached final judgment some years prior to the enactment of the 2008 [amendments] and therefore are less likely to be ‘before the court[ ] in any form,’ as required for treatment on motion under § 1083(c)(2)” (citing Bodoff, 567 F.Supp.2d at 142-43) (final alteration in original)

How later courts described this case

holding that *124 “§ 1083(e)(3) enables plaintiffs who achieved final judgments under the former terrorism exception, § 1605(a)(7), to pursue new federal causes of action under § 1605A based on the same prior act or incident,” and thereby “offers an avenue of relief in those cases that reached final judgment some years prior to the enactment of the 2008 [amendments] and therefore are less likely to be ‘before the court[ ] in any form,’ as required for treatment on motion under § 1083(c)(2)” (citing Bodoff, 567 F.Supp.2d at 142-43) (final alteration in original)
examining in extensive detail the issue of judicial power and finality of judgments under federal precedent and stating an inclination to conclude that because of the centrality of preclusion principles to the judiciary’s purpose of rendering final judgments in civil cases, under certain circumstances, legislation negating these doctrines violates separation of powers
noting, “these latest additions to . . . FSIA demonstrate that BENNETT V. BANK MELLI 33 Congress remains focused on eliminating those barriers that have made it nearly impossible for plaintiffs in these actions to execute civil judgments against Iran or other state sponsors of terrorism”
noting, “these latest additions to ... FSIA demonstrate that Congress remains focused on eliminating those barriers that have made it nearly impossible for plaintiffs in these actions to execute civil judg *967 ments against Iran or other state sponsors of terrorism”

Written by the judges who cited it.

The opinion

ROYCE C. LAMBERTH, Chief Judge.

TABLE OF CONTENTS

I. Table of Contents...........................................................34

II. Introduction................................................................35

III. Discussion .................................................................38

A. Historical Overview of the FSIA State Sponsor of Terrorism Exception as it Relates to Actions Against the Islamic Republic of Iran...............40

1. The Original State Sponsor of Terrorism Exception to Foreign Sovereign Immunity, Section 1605(a)(7) and the Flatow Amendment, Section 1605 Note, and Litigation Against Iran for its Provision of Material Support to Terrorist Organizations...............41

2. Setbacks for Plaintiffs: The D.C. Circuit’s Decision in

Cicippio-

Puleo............................................................46

3. The Never-Ending Struggle to Enforce Judgments Against Iran..........49

B. Section 1083 of the 2008 NDAA and the Creation of a Terrorism Exception, Section 1605A..............................................58

1. New Federal Cause of Action.........................................59

2. Punitive Damages...................................................61

3. Compensation for Special Masters.....................................61

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4. More Robust Provisions for the Execution of Civil Judgments ............61

C. Retroactive Application of Section 1605A to Cases Previously Filed Under Section 1605(a)(7) ..............................................62

1. Section 1083(c)(2) — Prior Actions......................................63

2. Section 1083(c)(3) — Related Actions...................................64

3. The 60-Day Rule — Filing Deadline for Cases Based on Prior Actions Under Section 1605(a)(7)...........................................65

4. Section 1083(c)(2)(B) — Defenses Waived: Res Judicata, Collateral Estoppel, and Statute of Limitations Are Deemed Waived to the Extent that those Defenses Relate to Claims Litigated in a Prior Action Under Section 1605(a)(7).....................................65

D. Efforts to Obtain Retroactive Treatment Under the New Terrorism Exception, Section 1605A..............................................65

E. Examination of Section 1083(c) of the 2008 NDAA Under Article III of the United States Constitution.........................................68

1. Principles of Law — The Independence of the Federal Judiciary Under Article III and the Finality of Judgments......................71

2. Analysis of the Constitutional Question in Light of the Supreme Court’s Jurisprudence.............................................76

a. Does Section 1083(c)(3) Direct the Reopening of Final Judgments Entered Before its Enactment and Therefore Contravene Article III as Construed by the Supreme Court in Plautl.......................................................77

b. Assuming that Section 1083(c)(3) Does Not Direct the Reopening of Final judgments, Does the Waiver of Res Judicata and Collateral Estoppel Effect of any Prior Terrorism FSIA Action Nonetheless Offend Article III because Congress has Directed the Courts to Ignore Fundamental and Longstanding Judicial Doctrines?............................................82

3. Additional Considerations............................................88

F. Analysis of Whether Actions Under Section 1605(a)(7) Have Qualified for Retroactive Treatment Under Section 1605A.............................91

1. The Belt-and-Suspenders Plaintiffs: Those Who Have Invoked both Section 1083(c)(2) and (c)(3) ........................................92

2. The Related-Action Plaintiffs: Those Who Have Filed New Actions Pursuant to Section 1083(c)(3)......................................98

3. The Do-Nothing Plaintiffs: Those Who Have Invoked Neither Section 1083(c)(2) Nor (c)(3) in Their Efforts to Retroactively Claim the New Entitlements Under Section 1605A...................100

4. General Guidance for All Cases......................................103

G. Service of New Claims in Pending Cases..................................104

H. Guidance for Plaintiffs Who May Wish to Pursue Relief Under Rule 60 of the Federal Rules of Civil Procedure...................................107

I. Compensation for Special Masters.......................................110

J. Motions for Appointment of Receivers....................................113

K. A Call for Meaningful Reform...........................................120

L. An Invitation for the United States to Participate in These Actions...........137

IV. Conclusion................................................................137

II.

INTRODUCTION

For more than a decade now, this Court has presided over what has been a twisting and turning course of litigation against the Islamic Republic of Iran under the state sponsor of terrorism exception of the Foreign Sovereign Immunities Act (FSIA). Despite the best intentions of Congress and moral statements of support from the Executive Branch, the stark reality is that

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the plaintiffs in these actions face continuous road blocks and setbacks in what has been an increasingly futile exercise to hold Iran accountable for unspeakable acts of terrorist violence.

The cases against Iran that will be addressed by the Court today involve more than one thousand individual plaintiffs. Like countless others before them, the plaintiffs in these actions have demonstrated through competent evidence — including the testimony of several prominent experts in the field of national security — that Iran has provided material support to terrorist organizations, like Hezbollah and Hamas, that have orchestrated unconscionable acts of violence that have killed or injured hundreds of Americans. As a result of these civil actions, Iran faces more than nine billion dollars in liability in the form of court judgments for money damages. Despite plaintiffs’ best efforts to execute these court judgments, virtually all have gone unsatisfied.

This consolidated opinion focuses on recent legislative changes in this extraordinary area of the law, as implemented by Congress last term in § 1083 of the 2008 National Defense Appropriations Act for Fiscal Year 2008 (2008 NDAA).

See

Pub.L. No. 110-181, § 1083 , 122 Stat. 3 , 338-44. Section 1083 completely repeals the original state sponsor of terrorism exception — 28 U.S.C. § 1605 (a)(7) — which was originally enacted in 1996, and enacts in its place a new exception-28 U.S.C. § 1605A — that is in many ways more favorable to plaintiffs. This new statute provides, among other reforms, a new federal cause of action against state sponsors of terrorism and allows for awards of punitive damages in these cases. Even more significantly, however, the reforms implemented through § 1083 last year add a number of measures that are intended to help plaintiffs succeed in enforcing court judgments against state sponsors of terrorism, such as Iran.

The primary purpose of this opinion is to consider whether and to what extent these recent changes in the law should apply retroactively to a number of civil actions against Iran that were filed, and, in many instances, litigated to a final judgment pri- or to the enactment of the 2008 NDAA. In this particular instance, Congress has provided express guidance in § 1083(c) with respect to how § 1605A may be applied retroactively to reach a host of cases that were filed under the original terrorism

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exception, § 1605(a)(7). In considering this retroactivity question, the Court will address a variety of other legal and procedural issues relating to what may be another lengthy course of litigation against Iran.

As is often the case in this area of the law that the Supreme Court has called sui generis,

see Austria v. Altmann,

541 U.S. 677, 698 , 124 S.Ct. 2240 , 159 L.Ed.2d 1 (2004), this Court must sometimes confront novel legal questions, including constitutional issues of first impression. Today’s decision is no different. This Court must address whether § 1088(c) impermissibly directs the reopening of final judgments in violation of Article III of the Constitution.

See Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211, 241 , 115 S.Ct. 1447 , 131 L.Ed.2d 328 (1995). The Court’s attentiveness to this potentially unconstitutional application of § 1083(c) was heightened significantly by provisions of § 1083(c) that direct courts to essentially disregard the firmly established judicial doctrines of res judicata and collateral estoppel with respect to any matters litigated in a prior FSIA terrorism case.

To the extent that § 1083(c) might be construed as directing the reopening of final judgments entered under the former version of the terrorism exception, § 1605(a)(7), it would usurp the prerogative of the judiciary to decide cases under Article III and thereby offend the principle of separation of powers enshrined within our Constitution. In light of this issue’s significance with respect to ongoing litigation against Iran, this Court addresses the Article III question in Part E of this opinion. After careful analysis as set forth below, this Court holds that the statute withstands constitutional scrutiny.

Today, the Court also reaches an even more fundamental conclusion: Civil litigation against Iran under the FSIA state sponsor of terrorism exception represents a failed policy. After more than a decade spent presiding over these difficult cases, this Court now sees that these cases do not achieve justice for victims, are not sustainable, and threaten to undermine the President’s foreign policy initiatives during a particularly critical time in our Nation’s history. The truth is that the prospects for recovery upon judgments entered in these cases are extremely remote. The amount of Iranian assets currently known to exist with the United States is approximately 45 million dollars, which is infinitesimal in comparison to the 10 billion dollars in currently outstanding court judgments.

Beyond the lack of assets available for execution of judgments, however, these civil actions inevitably must confront deeply entrenched and fundamental understandings of foreign state sovereignty, conflicting multinational treaties and executive agreements, and the exercise of presidential executive power in an ever-changing and increasingly complex world of international affairs.

Unfortunately, the enactment of § 1083 of the 2008 NDAA continues and expands the terrorism exception and its failed policy of civil litigation as the means of redress in these horrific cases. The availability of new federal claims under § 1605A with punitive damages, when combined with the broad retroactive reach accorded to this new statute, means that liability in the form of billions of dollars more in court judgments will continue to mount and mount quickly.

As a result of these latest reforms, the victims in these cases will now continue in

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their long struggle in pursuit of justice through costly and time-consuming civil litigation against Iran. They will do this at a time in our Nation’s history when the President has taken bold and unprecedented steps in an attempt to improve relations with that foreign power while pressing forward on crucial issues, such as the grave threat of nuclear proliferation posed by Iran. Regrettably, the continuation in § 1083 of the same flawed policy that has failed plaintiffs in these actions for over a decade may only stoke the flames of unrealistic and unmanageable expectations in these terrorism victims who so rightly deserve justice, which may in turn serve only to expose the Administration to an unprecedented burden in its management of United States foreign policy towards Iran.

In view of these considerations, the Court will respectfully urge the President and Congress to seek meaningful reforms in this area of law in the form of a viable alternative to private litigation as the means of redress for the countless deaths and injuries caused by acts of terrorism. In Part K of the opinion and in the Conclusion, this Court will speak candidly about the challenges, complexities, and frustrations borne out by these civil actions over the past decade in an effort to urge our political leaders to act. If the decade-long history of these FSIA terrorism actions has revealed anything, it is that the Judiciary cannot resolve the intractable political dilemmas that frustrate these lawsuits; only Congress and the President can. Today, at the start of a new presidential administration — one that has sought engagement with Iran on a host of critical issues — it may be time for our political leaders here in Washington to seek a fresh approach.

To assist this Court in these matters going forward, the Court will invite the United States to participate in these actions by filing a brief in response to the many issues addressed in this opinion. The Court encourages the United States to express its views regarding this litigation, but, more importantly, the Court hopes the Government might take this opportunity to give due consideration to whether there might be a more viable system of redress for these tragic and difficult cases. With the daunting national security challenges that confront the President with respect to Iran, our political leaders should candidly acknowledge the challenges and pitfalls of these terrorism lawsuits. The Court fears that if reforms are not achieved in the near future, these civil suits against Iran may undermine the President’s ability to act at a time when it matters most.

Today’s omnibus opinion consists of twelve parts and is intended to serve a case management function in light of the significant changes in the law relating to these civil suits against Iran. Thus, today’s ruling is consistent with this Court’s inherent authority to manage the docket.

See, e.g., In re Fannie Mae Sec. Litig., 552

F.3d 814, 822 (D.C.Cir.2009) (“District judges must have authority to manage their dockets, especially during massive litigation....”). A separate order consistent with this opinion will issue this date.

III.

DISCUSSION

The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. §§ 1330 ,

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1602-1611, is the sole basis of jurisdiction over foreign states in our courts.

E.g., Argentine Republic v. Amerada Hess Shipping Corp.,

488 U.S. 428, 434 , 109 S.Ct. 683 , 102 L.Ed.2d 818 (1989);

Prevatt v. Islamic Republic of Iran,

421 F.Supp.2d 152, 157-58 (D.D.C.2006) (Lamberth, J.). Enacted in 1976, the FSIA codifies a restrictive theory of foreign state sovereign immunity by which states are generally immune from the jurisdiction of courts of the United States, subject to a few carefully delineated exceptions.

See, e.g., Verlinden B.V. v. Cent. Bank of Nigeria,

461 U.S. 480, 488-89 , 103 S.Ct. 1962 , 76 L.Ed.2d 81 (1983);

Price v. Socialist People’s Libyan Arab Jamahiriya,

294 F.3d 82, 87 (D.C.Cir.2002). In the original FSIA enactment, exceptions to foreign sovereign immunity included cases in which a foreign state had either expressly or implicitly waived its immunity and cases relating to the commercial activities of a foreign sovereign within the United States.

See

Act of Oct. 21, 1976, Pub.L. No. 94-583, 90 Stat. 2891;

see also Flatow III,

76 F.Supp.2d 16 (noting President’s first exercise of waiver in the interest of national security of provision that would have permitted attachment of blocked assets). In a letter to the

Washington Post

cited by this Court in two of its published decisions, Stephen Flatow documented his meetings with President Clinton, including private meetings and phone calls, as well as his meetings with other high ranking members of the Clinton Administration.

See

Stephen Flatow,

In This Case, I Can’t Be Diplomatic; I Lost a Child to Terrorism,; Now I’m Losing U.S. Support,

Wash. Post, Nov. 7, 1999, at B2. Mr. Flatow explained how he grew tremendously frustrated in his long pursuit of justice in which he received statements of support from the Executive Branch, as well as personal assurances of assistance, only to later find that the administration proved to be the most formidable adversary in his efforts to execute judgment upon the blocked assets of Iran. In reflecting on his experiences some years later, Stephen Flatow referred to his litigation against the United States “as a real cat fight.” Tucker,

Pain and Suffering, supra.

As this Court observed how many plaintiffs struggled to enforce their court judgments in FSIA terrorism cases against Iran, this Court began to refer these judgments as “Pyrrhic Victories.”

Eisenfeld,

172 F.Supp.2d at 9 ;

Flatow III,

76 F.Supp.2d at 27 . Moreover, this Court expressed dismay over the fact that the rule of law was being frustrated in these actions.

Eisenfeld,

172 F.Supp.2d at 9 . Allowing plaintiffs to go forward with suits under § 1605(a)(7) while not freeing up Iran’s assets to satisfy those judgments under § 1610, or through the release of blocked assets under United States’ control, was a quintessential example of the federal government promising with one hand what it takes away with the other. In fact, it is not uncommon for plaintiffs to receive mixed signals from Congress and the President in this highly-charged political context.

See, e.g., Roeder,

195 F.Supp.2d at 145 (observing that the political branches of the Government “should not with one hand express support for the plaintiffs and with the other leave it to this Court to play the role of the messenger of bad news”).

In view of the challenges that plaintiffs encountered in their efforts to execute judgments against the assets of state sponsors of terrorism here in the United States, Congress did make a number of efforts on behalf of the victims of terrorism to free up blocked assets for judgments under § 1605(a)(7). The first law enacted as part of this effort to free up assets of state sponsors of terrorism was included in the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999. Pub.L. No. 105-277, div. A, tit. I, § 117(a), 112 Stat. 2681 -0, 2681-491 (codified at § 1610(f)(1)(A)). That measure created a new exception— § 1610(f)— which allowed for the first time attachment and execution against blocked assets of

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state sponsors of terrorism.

When Congress passed this measure, however, it also provided that the President could waive the provision “in the interest of national security.” § 1610(f)(3). Upon signing the bill into law, President Clinton exercised that waiver authority.

See

Pres. Determ. No. 99-1, 63 Fed.Reg. 59,201 (Oct. 21, 1998). In doing so, the President stated:

Absent my authority to waive section 117’s attachment provision, it would effectively eliminate the use of blocked assets of terrorist States in the national security interests of the United States, including denying an important source of leverage. In addition, section 117 could seriously impair our ability to enter into global claims settlements that are fair to all U.S. claimants, and could result in U.S. taxpayer liability in the event of a contrary claims tribunal judgment. To the extent possible, I shall construe section 117 in a manner consistent with my constitutional authority and with U.S. international legal obligations, and for the above reasons, I have exercised the waiver authority in the in the national security interest of the United States.

Statement on Signing the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, 2 Pub. Papers 1843, 1847 (Oct. 23, 1998). Thus, § 1610(f)(1)(A) — which would have broadly subjected Iranian assets to attachment and execution — was rendered a nullity.

The following term, Congress passed the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), in which Congress again tried to subject blocked assets of state sponsors of terrorism to attachment of execution. Pub.L. No. 106-386, § 2002 , 114 Stat. 1464 , 1541. Specifically, Congress aimed in the VTVPA to resur

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rect § 1610(f)(1)(A) of the FSIA and thus repealed the waiver authority that was exercised by President Clinton under § 117(d) of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999.

See

§ 2002(f)(2). Oddly enough, however, Congress replaced that earlier waiver provision with a new, and nearly identical provision, that again granted the President the authority to waive § 1610(f)(1)(A) “in the interest of national security.” § 2002(f)(1)(B). Upon singing the VTVPA into law, the President again exercised the waiver authority, as granted by Congress, which again rendered § 1610 a nullity. Thus, § 1610(f) remains inapplicable in cases under the FSIA terrorism exception.

More significantly, the VTVPA also directed the Secretary of Treasury to pay the compensatory damages awarded in court judgments to plaintiffs in a limited number of FSIA terrorism cases against Iran or Cuba. § 2002(a). With respect to the payment of judgments against Iran specifically, the VTVPA directed the Secretary of Treasury to make those payments out of the rental proceeds that had been accrued as a result of the federal government’s lease of Iranian diplomatic and consular property and from appropriated funds “not to exceed the total of the amount in the Iran Foreign Military Sales Program account within the Foreign Military Sales Fund.” § 2002(b).

Once an eligible plaintiff accepts a payment of compensatory damages from the United States Treasury on a judgment against Iran, the plaintiffs right to pursue that claim is “fully subrogated” to the United States.

Id.

As a result of the VTVPA, precisely ten cases against Iran qualified for payments from the United States Treasury.

See

Terrorist Assets Report,

supra

note 2, at 12-15, app. A (discussing VTVPA program for payment of compensatory damage in judgments entered against Iran and Cuba and listing cases).

Flatow

was among the cases that qualified, and Stephen Flatow, along with plaintiffs in all of the nine other qualifying cases, opted to have their compensatory damages paid by United States.

See id,.; see also

Tucker,

Pain and Suffering, supra

(discussing Stephen Flatow’s acceptance of payment of compensatory damages from the United States Treasury and his ongoing efforts to enforce the punitive damages portion of his judgment against Iran). Subsequent legal enactments have expanded the number of cases with judgments against Iran that are eligible for payments from the United States Treasury.

See

Foreign Relations Authorization Act, Fiscal Year 2003, Pub.L. No. 107-228, § 686 , 116 Stat. 1350 , 1411 (2002); Terrorism Risk Insurance Act of 2002 (TIRA), Pub.L. No. 107-297, § 201 , 116 Stat. 2322 , 2337-39.

In the TRIA, Congress not only expanded the class of plaintiffs eligible for payment from the United States Department of Treasury under the VTVPA, but, even more fundamentally, Congress finally succeeded in subjecting the assets of state sponsors of terrorism to attachment and execution in satisfaction of judgments under § 1605(a)(7).

See

§ 201. The TRIA provides that “[njotwithstanding any other provision of law,” the blocked assets of a terrorist state are subject to attachment or

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execution to the extent of any compensatory damages awarded against that state under the FSIA terrorism exception.

Id.

The TRIA does, however, continue to exempt diplomatic and consular property from attachment and execution under § 1610.

See

§ 201(d)(2)(B)(ii). Nonetheless, the TRIA has opened a wide range of blocked assets to attachment and execution by the judgment creditors of state sponsors of terrorism. Thus, the TRIA appears to represent something of a victory for these terrorism victims — whose interests have been most vigorously advanced by members of Congress — over the longstanding objections of the Executive Branch.

In the case of Iran, however, the simple fact remains that very few blocked assets exist. In fact, according to OFAC’s latest report, there are only 16.8 million dollars in blocked assets relating to Iran. Terrorist Assets Report,

supra

note 2, at 14, tbl. 1. This amount is inconsequential — a mere drop in the bucket — when compared to the staggering 9.6 billion dollars in outstanding judgments entered against Iran in terrorism cases as of August 2008, which is the last time the Congressional Research Service compiled data on this issue.

Id.

at 75, app. B, tbl. B-l. The amount of Iranian non-blocked assets within the United States, as reported to OF AC, is similarly inconsequential in comparison to Iran’s liability under the FSIA terrorism exception. According to OF AC, the amount of non-blocked Iranian assets is merely 28 million dollars.

Id.

at 15, tbl. 3.

The billions of dollars in liability that Iran now faces is likely to increase tremendously as a result of the new federal cause of action under § 1605A, which now includes punitive damages. Thus, Congress has continued to fuel expectations in these actions by broadly subjecting Iran to suit for sponsorship of terrorism while simultaneously ignoring the fact that the prospects for recovery are virtually nonexistent. This fundamental problem is an issue that the Court will explore later in this opinion in Part K below.

SECTION 1083 OF THE 2008 NDAA AND THE CREATION OF A NEW TERRORISM EXCEPTION, SECTION 1605A

In light of the significant setbacks that plaintiffs experienced in actions under § 1605(a)(7), Congress implemented a number of major reforms last year. Section 1083 of National Defense Appropriations Act (NDAA) completely repeals § 1605(a)(7) and replaces that provision with a new statute, § 1605A. As noted above, it is important to keep in mind that the exception to foreign sovereign immunity under the new provision, § 1605A, is identical to that which is contained in § 1605(a)(7), but this new law is more comprehensive and more favorable to plaintiffs because it adds a broad array of substantive rights and remedies that simply were not available in actions under § 1605(a)(7).

As noted above, § 1605A accomplishes four basic objectives. This new terrorism statute (1) furnishes a cause of action against state sponsors of terrorism; (2) makes punitive damages available in those actions; (3) authorizes compensation for

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special masters; and (4) implements new measures designed to facilitate the enforcement of judgments. Each of these four key aspects of § 1605A will now be discussed in turn.

1. New Federal Cause of Action

With respect to the first objective, the new law now expressly provides that designated state sponsors of terrorism may be subject to a federal cause of action for money damages if those terrorist states cause or otherwise provide material support for an act of terrorism that results in the death or injury of a United States citizen or national.

See

§ 1605A(c). This new federal right of action for money damages abrogates

Cicippio-Puleo, 353 F.3d

1024, and is a crucial change in the law for hundreds of FSIA terrorism plaintiffs who were not able to rely on state tort law to create a cause of action against Iran previously.

Thanks to the enactment of § 1605A, the inconsistent and varied result that was reached in

Peterson

and in similar cases under § 1605(a)(7) will be avoided in actions going forward under the new law. Courts can now work from a single federal cause of action that will ensure a greater degrees of fairness to FSIA terrorism plaintiffs while furnishing a level of consistency and uniformity that is critical in matters of foreign relations.

The new cause of action included with the new terrorism exception § 1605A has a new and expanded statute of limitations. Specifically, § 1605A(b) provides:

An action may be brought or maintained under this section if the action is commenced, or a related action was commenced under section 1605(a)(7) (before the date of the enactment of this section) or [the Flatow Amendment] not later than the later of—

(1) 10 years after April 24,1996; or

(2) 10 years after the date on which the cause of action arose.

§ 1605A(b) (emphasis added). The prior statute of limitations applicable to actions under § 1605(a)(7) was simply 10 years from the date the cause of action arose (leading to a cut-off date in April 2006), subject, in some instances, to equitable tolling.

See

§ 1605(f) (repealed by § 1083(b)). Accordingly, many new actions that might have been barred by the statute of limitations for § 1605(a)(7) may now move forward under § 1605A.

As § 1605A establishes a new federal cause of action against state sponsors of terrorism, this Court will have to determine what basic principles of law should be applied to resolve claims sounding in tort pursuant to this new private right of action under the FSIA. This is an important issue that many judges of this Court grappled with through the application of the Flatow Amendment in FSIA terrorism cases that reached final judgments prior to the Circuit’s ruling in Cicippio-Puleo.

At that time, judges of this Court frequently referred to “federal common law” as provid

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ing the rule of decision for claims under the FSIA.

See, e.g., Stethem v. Islamic Republic of Iran,

201 F.Supp.2d 78, 89 (D.D.C.2002) (Jackson, J.);

Wagner v. Islamic Republic of Iran,

172 F.Supp.2d 128, 134 (D.D.C.2001) (Jackson, J.);

Flatow I,

999 F.Supp. 1 at 15 .

Bettis v. Islamic Republic of Iran,

however, which one of the last FSIA terrorism cases decided by the Circuit prior to

Cicippio-Puleo ,

the Court of Appeals cautioned trial judges against the use of the term “federal common law.” 315 F.3d 325 , 333 (D.C.Cir.2003). The appeal in

Bettis

involved claims for intentional infliction of emotional distress. In examining those claims, the Court warned that the Flatow Amendment did not “ ‘authorize federal courts to fashion a complete body of federal law’ ” to address the claims of plaintiffs under that statute.

Id. (quoting Burks v. Lasker,

441 U.S. 471, 476 , 99 S.Ct. 1831 , 60 L.Ed.2d 404 (1979)). Instead of relying on “federal common law,” the Court looked to § 46 of the Restatement (Second) of Torts, as well as a number of secondary source compilations, such as legal encyclopedias, law reviews, and survey of leading state tort law cases.

See id.

at 333-338.

Admittedly,

Bettis

was decided under the Flatow Amendment, but this Court finds nonetheless that

Bettis

should still control now that Congress has clearly established a private right of action against a foreign state sponsor of terrorism for “personal injury or death” in those cases in which terrorism exception to foreign sovereign immunity applies. § 1605A(c). The questions confronted relating to sources of common law for claims sounding in tort under the Flatow Amendment, are, in substance, the same as those that will now confront this Court as result of the new private right of action in § 1605A(c). Thus, the question of what substantive tort law norms should control in these actions is an issue this Court will have to continue to explore in actions under § 1605A, as it once did in actions under the Flatow Amendment prior to

Cicippio-Puleo .

As this Court views

Bettis

as the as the controlling precedent with respect to application of tort law principles to in cases

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under the FSIA terrorism exception, this Court will therefore look to that decision as the starting point for the analysis of substantive claims under § 1605A. Consistent with

Bettis,

this Court will rely on well-established principles of law, such as those found in Restatement (Second) of Torts and other leading treatises, as well as those principles that have been adopted by the majority of state jurisdictions. Today, this Court will issue a separate opinion in the consolidated action of

Heiser v. Islamic Republic of Iran,

659 F.Supp.2d 20 (D.D.C.), a case concerning the Khobar Towers bombing, in which this Court analyzes new claims for compensatory damages under § 1605A. Plaintiffs looking for more guidance regarding the standards that this Court will apply to claims under § 1605A should review that decision in conjunction with this omnibus opinion.

2. Punitive Damages

The second key reform found in § 1605A is the availability of punitive damages.

See

§ 1605A(c). Consequently, the majority of the of the plaintiffs in prior actions under § 1605(a)(7) who were unable to claim punitive damages following the

Cicippio-Puleo

decision will now have an opportunity to do so. The prospect of large punitive damage awards may help to deter Iran and other states sponsors of terrorism from their support of international terrorist organizations.

Through the separate opinion and judgment entered in

Heiser,

this Court awards plaintiffs in that action punitive damages under § 1605A(c). In doing so, the Court reaffirms the principles first articulated in

Flatow

with respect to awards of punitive damages against Iran. Other plaintiffs who now seek punitive damages under § 1605A should review this Court’s discussion of punitive damages in

Flatow

and look to the opinion issued today in

Heiser.

3. Compensation for Special Masters

Over the years, a number of attorneys have been appointed by this Court to serve as special masters to assist the Court in determining money damage awards for the many individual plaintiffs and estates represented on this Court’s sizable docket of civil actions against Iran. The work completed by these officers of the Court is extraordinarily tedious and time-consuming, and, until recently, the special masters were not entitled to any compensation for their efforts. In last year’s NDAA, however, Congress directed that special masters in cases against designated states sponsors of terrorism should receive compensation for their work, and thus the new terrorism exception now provides that special masters should be reimbursed for their work from the Attorney General’s Victims of Crime Fund.

See

§ 1605A(e).

4. More Robust Provisions for the Execution of Civil Judgments

Like many prior legislative enactments relating to civil suits against designated state sponsors of terrorism, the new terrorism exception in combination with certain other reforms achieved through

*62

§ 1083 takes aim at what is perhaps the most fundamental problem confronting these actions: the inability of plaintiffs to execute their civil judgments against Iran. As noted above,

swpra,

most plaintiffs in FSIA terrorism cases have been thwarted in their efforts to execute civil judgments in part because there are few Iranian Government assets within the jurisdiction of the United States Courts. What little that does exist is generally immune from attachment or execution under § 1609. Additionally, in the past plaintiffs have encountered the problem of United States sovereign immunity because most property or interests in property within the United States that might be attributed to state sponsors of terrorism are subject to federal regulatory control, or are, in a number of instances, within the possession of the federal government.

See, e.g., Weinstein,

274 F.Supp.2d 53 .

In an apparent effort to overcome some of the challenges relating to the execution of judgments, § 1605A entitles plaintiffs to what are in effect automatic pre-judgment liens on property belonging to a designated state sponsor of terrorism.

In addition to these new prejudgment attachment procedures, any actions filed or otherwise maintained under § 1605A may benefit from certain reforms to § 1610, which is the section of the FSIA that prescribes the limited circumstances in which the property of a foreign state may be subject to attachment or execution upon a civil judgment. Specifically, § 1083 of the 2008 NDAA adds to § 1610 new provisions that are plainly intended to limit the application of foreign sovereign immunity or United States sovereign immunity as defenses to attachment or execution with respect to property belonging to designated states sponsors of terrorism.

See

§ 1083(b) (“Conforming Amendments”) (codified at § 1610(g)). The full implications of § 1610(g) are far from clear. Only time will tell whether § 1610(g) will enable plaintiffs going forward with actions under § 1605A to experience greater success in executing civil judgments against Iranian assets. Given the scarcity of assets and the difficulty of locating what assets might be available — it seems unlikely that this provision will be of great utility to plaintiffs. Suffice it to note, however, these latest additions to the FSIA demonstrate that Congress remains focused on eliminating those barriers that have made it nearly impossible for plaintiffs in these actions to execute civil judgments against Iran or other state sponsors of terrorism.

RETROACTIVE APPLICATION OF SECTION 1605A TO CASES PREVIOUSLY FILED UNDER SECTION 1605(a)(7)

Today the Court must determine whether the new terrorism exception should be

*63

applied retroactively to reach cases that were originally filed under § 1605(a)(7) prior to enactment of the new statute, § 1605A. In this instance, Congress has in § 1083(c) of the 2008 NDAA provided guidance with respect to the retroactive reach of this new provision of law, and so the Court’s analysis begins with that statutory guidance.

See, e.g., Hamdan v. Rumsfeld,

548 U.S. 557, 575-584 , 126 S.Ct. 2749 , 165 L.Ed.2d 723 (2006) (applying “ordinary principles of statutory construction” to determine whether the Detainee Treatment Act should operate retroactively);

Landgraf

511 U.S. at 271 , 114 S.Ct. 1483 (noting that when “Congress has expressly prescribed the statute’s proper reach[,] there is no need to resort to judicial default rules”). Section § 1083 contains a number of subsections, but two are especially critical for purposes of this Court’s analysis. These are subsections (c)(2) and (c)(3), which set forth the qualifying conditions and procedures that must be fulfilled before a prior action under § 1605(a)(7) may be eligible to proceed under the new terrorism law, § 1605A.

Subsection (c)(2) refers to “Prior Actions,” but this subsection actually concerns a relatively narrow category of prior cases, all of which are probably best characterized as pending cases. Pending in this instance means cases that were awaiting a disposition by a court at the time of the 2008 NDAA’s enactment. This includes actions that were on direct appeal and those with unresolved postjudgment motions.

The next subsection, (c)(3), referring to “Related Actions,” reaches a far broader category of cases, including many that simply were not pending with the courts in any form at the time the 2008 NDAA became law. This is because the plain terms of the related-actions provisions in subsection (c)(3) specify that if an action was timely commenced under § 1605(a)(7), then

“any

other action arising out of the same act or incident may be brought under section 1605A” § 1083(c)(3) (emphasis added). Thus, the heading of § 1083(c) — “Application to Pending Cases” — is something of a misnomer because, in reality, § 1083(c) may encompass cases that are not pending at all — meaning prior actions that have since reached final judgment and are no longer before the courts in any form.

Additionally, there are two other aspects of § 1083(c) that are critical to today’s analysis. First, the statute sets up limitation periods or filing deadlines for plaintiffs desiring to take advantage of the newly enacted terrorism statute.

See

§ 1083(c)(2)(C), (c)(3). Second, in a section of the statute referred to as “Defense Waived,” the enactment provides that the defenses of res judicata and collateral estoppel are waived to the extent that such defenses are based on a claim that was presented in a prior FSIA terrorism case under § 1605(a)(7).

See

§ 1083(c)(2)(B).

As each of these provisions within § 1083(c) are central to today’s decision, the Court will now review the specifics of each of these statutory mandates in turn.

1. Section 1083(c)(2) — “Prior Actions”

In accordance with the procedures in § 1083(c)(2), a “prior action” that was timely commenced under either § 1605(a)(7) or the Flatow Amendment is eligible to proceed under the new statute, § 1605A, if three straightforward criteria are satisfied. Specifically, the plaintiff must demonstrate the prior action: (1) relied on § 1605(a)(7) or the Flatow Amendment as creating a cause of action, (2) has “been adversely affected on the grounds that either or both of those provisions failed to create a cause of action against the state,” and (3) as of the date of

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the enactment of the 2008 NDAA, the case was “before the court[ ] in any form, including on appeal or motion under Rule 60(b) of the Federal Rules of Civil Procedure.” § 1083(c)(2)(A)(ii)-(iv). If these requirements are met, then “the action shall, on motion made by plaintiffs to the United States district court where the action was initially brought, or judgment in the action was originally entered, be given effect as if the action had originally been filed under section 1605A(c) of title 28, United States Code.” § 1083(c)(2)(A)(iv). This subsection also contemplates that the plaintiff may chose to “refile” his action, rather than make a motion.

See

§ 1083(c)(2)(C).

In another action before this Court, Syria argued recently that plaintiffs who filed actions under § 1605(a)(7) following the Court of Appeals’ decision in

Cicippio-Puleo ,

or after June 16, 2004, are precluded from taking advantage of § 1083(c)(2) because, as Syria reads the statute, such plaintiffs could not have reasonably relied on § 1605(a)(7) or the Flatow Amendment, as

Cicippio-Puleo

made plain that those provisions do not furnish a cause of action against a foreign state.

See Gates v. Syrian Arab Republic,

646 F.Supp.2d 79 (D.D.C.2009) (Collyer, J.). In this Court’s view, however, such an interpretation of § 1083(c)(2)(A) is a crabbed reading of the statute, which, if accepted, would frustrate the broad remedial purposes Congress sought to achieve through the enactment of § 1083. In fact, the House Conference Report that accompanied § 1083 strongly suggests that Congress envisioned an expansive retroactive reach for § 1605A as a means to overcome the many setbacks plaintiffs encountered under § 1605(a)(7) and the Flatow Amendment. That report states: “The provision would allow any case previously brought under the state sponsor of terrorism exception to the FSIA under the section 1605(a)(7), or under section 101(c) of Public Law 101-208 [the Flatow Amendment], and which is still before a court, to be refiled as if the original claim has been filed under the provisions of this section.” H.R.Rep. No. 110-477, at 1001 (2007) (Conf. Rep.). Accordingly, this Court construes § 1083(c)(2)(A) broadly, consistent with the remedial purposes of the new anti-terrorism enactment, to include actions adversely impacted by

Cicippio-Puleo ,

regardless of when those actions were filed. For similar reasons, this Court reads the requirement that the prior actions must be adversely impacted on the grounds that § 1605(a)(7) and the Flatow Amendment failed to establish a cause of action against a foreign state to include those instances in which plaintiffs failed to recover punitive damages, a critical component of these terrorism actions.

2. Section 1083(c)(3) — “Related Actions”

Section 1083(c)(3), the provision concerning “related actions” offers another method by which certain prior actions may be filed with the Court as new actions under § 1605A. Specifically, § 1083(c)(3) provides that “[i]f an action arising out of an act or incident has been timely commenced under section 1605(a)(7) ..., any other action arising out of the same act or incident may be brought under section 1605A.” As this Court has recognized in prior decisions, § 1083(c)(3) enables plaintiffs who achieved final judgments under the former terrorism exception, § 1605(a)(7), to pursue new federal causes of action under § 1605A based on the same prior act or incident. In

Bodoff v. Islamic Republic of Iran,

for example, this Court determined that plaintiff was not entitled to relief under § 1083(c)(2) because the case was not before the court in any form, but in reaching that conclusion, this Court emphasized that plaintiff had the right to

*65

file a new action, pursuant to § 1083(c)(3).

See

567 F.Supp.2d 141, 142-43 (D.D.C. 2008) (Lamberth, C.J.). Thus, § 1083(c)(3) offers an avenue of relief in those cases that reached final judgment some years prior to the enactment of the 2008 NDAA and therefore are less likely to be “before the court[ ] in any form,” as required for treatment on motion under § 1083(c)(2).

Additionally, § 1083(c) allows plaintiffs in a prior action under § 1605(a)(7) to file an action under the new law, § 1605A, as a related case to any other pending action that was timely commenced under § 1605(a)(7) and based on the same terrorist act or incident. In other words, plaintiffs’ right to proceed under the new section is not tied exclusively to their prior action; plaintiffs may identify other cases that are pending under § 1605(a)(7) that are based on the same act or incident.

3. The 60-Day Rule — Filing Deadline for Cases Based on Prior Actions Under Section 1605(a)(7)

No matter how plaintiffs wish to qualify their prior actions under the new terrorism exception, § 1605A — that is, regardless of whether they seek to do so pursuant to § 1083(c)(2) or whether they opt to file a new action pursuant § 1083(c)(3)— plaintiffs have only a limited window of opportunity to elect the benefits of the new statute. Plaintiffs who hope to gain the benefits of the new law by filing a motion or by refiling pursuant to § 1083(c)(2), must file their motions “within the 60-day period beginning on the date of the enactment of the [2008 NDAA],” or no later than March 28, 2008. § 1083(c)(2)(c). Plaintiffs who wish to file a new action as a related case” — as related to either their own prior action under § 1605(a)(7) or some other case based on the same act or incident — pursuant to § 1083(c)(3), must do so no later than 60 days after the entry of judgment in the original action or within 60 days after the date of the enactment of the 2008 NDAA, whichever is later. § 1083(c)(3).

4. Section 1083(c)(2)(B) — “Defenses Waived”: Res Judicata, Collateral Estoppel, and Statute of Limitations Are Deemed Waived to the Extent that those Defenses Relate to Claims Litigated in a Prior Action Under Section 1605(a)(7)

Subsection § 1083(c)(2)(B), referred to as “Defenses Waived,” purports to limit “[t]he defenses of res judicata, collateral estoppel, and limitation period” in any new action under § 1605A. Specifically, the statute provides that any defense based on either the doctrines of res judicata or collateral estoppel or the limitation period shall be deemed waived to the extent that the new action under § 1605A relies, either in whole or in part, on an earlier terrorism case brought under the prior version of the terrorism exception, § 1605(a)(7).

See

§ 1083(c)(2)(B). This waiver applies to cases that are converted to § 1605A on motion, consistent with § 1083(c)(2)(A), as well as to any other prior cases that are “refiled under [§ ] 1605A(c).” In other words, prior judgments under the state sponsor terrorism exception to the FSIA, § 1605(a)(7) are not to be given any preclusive effect in new actions brought under the current version of the terrorism exception, § 1605A.

EFFORTS TO OBTAIN RETROACTIVE TREATMENT UNDER THE NEW TERRORISM EXCEPTION, SECTION 1605A

In view of the language that Congress has included within § 1083(c) — both with respect to the criteria defining wheth

*66

er a claim is eligible for treatment under the new terrorism section, § 1605A, as well as the time limits for electing treatment under the new statute — this Court is not persuaded by any reading of § 1083 that would have § 1605A apply automatically to prior terrorism cases under § 1605(a)(7). While some counsel before this Court may have glossed over the requirements within § 1083(c), it is the duty of this Court “to give effect, if possible, to every clause and word of a statute.”

United States v. Menasche,

348 U.S. 528, 538-39 , 75 S.Ct. 513 , 99 L.Ed. 615 (1955) (quotation and citation omitted). This Court presumes that Congress “says in a statute what it means and means in a statute what it says there.”

Conn. Nat’l Bank v. Germain,

503 U.S. 249, 252-54 , 112 S.Ct. 1146 , 117 L.Ed.2d 391 (1992). These time-honored cannons of statutory construction are particularly critical in this context because the FSIA terrorism exception is a “delicate legislative compromise” that balances a host of competing foreign policy considerations.

See Price,

294 F.3d at 89 . More fundamentally, however, this Court never presumes that a law applies retroactively; instead, Congress must clearly instruct courts as to whether and to what extent a new law is to apply to cases that preceded its enactment.

See Plaut,

514 U.S. at 237 , 115 S.Ct. 1447 . In this case, Congress has done just that by setting forth specific parameters in § 1083(c).

Thus, the framework established by § 1083(c) is the template that this Court must apply when determining whether pri- or actions under the old exception for state sponsors of terrorism, § 1605(a)(7), are entitled to go forward as new actions under the recently enacted § 1605A with all the benefits that new section entails. Consistent with § 1083, this Court has held on prior occasions that the latest revision of the state sponsor of terrorism exception to sovereign immunity, § 1605A does not have automatic, retroactive application to cases filed under the now-repealed § 1605(a)(7).

See Kirschenbaum v. Islamic Republic of Iran,

572 F.Supp.2d 200 , 204 n. 1 (D.D.C.2008) (Lamberth, C.J.);

Beer,

574 F.Supp.2d at 5 n. 1. Similarly our Court of Appeals observed recently that failure to adhere to those procedures means that the prior action remains under § 1605(a)(7), rather than § 1605A, and thus plaintiffs are not entitled to any of the benefits of the new enactment under those circumstances.

See Simon,

529 F.3d at 1192 ;

see also Boumediene,

128 S.Ct. at 2271 (‘We cannot ignore the text and purpose of a statute in order to save it.”);

Citizens for Responsibility and Ethics in Washington,

592 F.Supp.2d at 131 (“[I]n the absence of statutory ambiguity the constitutional avoidance doctrine has no place.”).

There are other important considerations that militate in favor of this Court addressing the constitutional question in this case. More than a decade ago when this Court first considered the “novel enactments” of the FSIA terrorism exception, § 1605(a)(7) and the Flatow Amendment, § 1605 note, this Court underscored its “special role in the development of foreign sovereign immunity jurisprudence.”

Flatow I,

999 F.Supp. at 6 (citing 28 U.S.C. 1391(f)(4)) (“providing that this Court is a designated venue for actions brought against a foreign state or political subdivision thereof’). Consistent with this role, this Court undertook in

Flatow

“a systemic review of the dispositive legal issues,” including a number of constitutional issues, in an effort to ensure that the plaintiff was fully entitled to relief under the law.

Id.

The plaintiffs before the Court today certainly deserve no less. In light of the substantial personal, financial, and emotional investments that these victims have made in these cases over the years, this Court simply cannot afford to overlook potential legal infirmities that could prove fatal to their cause. Thus, similar to

Flatow,

and consistent with this Court’s historical role in the development of jurisprudence under the FSIA, this Court should examine carefully whether the latest terrorism exception, § 1605A, can be applied retroactively to cases that were litigated to a final judgment under § 1605(a)(7) in a manner that comports with Article III of the Constitution.

More fundamentally, however, the Court is mindful that these FSIA actions under the state sponsor of terror exception involve a handful of rogue nations, who, like Iran, have had an extremely rocky relationship with the United States. On the other side of this difficult problem, are hundreds of victims of international terrorism who have long suffered, and who desperately hope to see Iran held accountable for its role in perpetuating terrorist acts that have destroyed countless lives. In this highly charged and inevitably political context — and especially where the offending nation is in default — this Court needs to be extremely leery of overreaching by Congress. It is also out of respect for the principle of comity between nations that this Court must assure itself that any lawsuit against a foreign power, no matter how unpopular that foreign sovereign may be, is an action that comports with our Constitution.

It is precisely at these

*70

challenging moments that our Courts must be ever vigilant to uphold the rule of law and take full stock of our Article III responsibility “to say what the law is.”

Marbury v. Madison,

5 U.S. 137, 177 , 1 Cranch 137 , 2 L.Ed. 60 (1803).

In candor, this Court is not the first to observe that certain parts of § 1083(c) might suffer from constitutional infirmities in violation of the principles expounded by the Supreme Court in its jurisprudence concerning the independent authority of Article III courts to decide civil cases. The potential infirmities analyzed here were first noted by Jennifer Elsea in the report she authored for the Congressional Research Service.

See

Suits Against Terrorist States,

supra

note 4, at 61.

The issue presented here today is troubling, but, this Court is of the view that § 1083(c)(3) and § 1083(c)(2)(B) withstand constitutional scrutiny.

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1. Principles of Law — The Independence of the Federal Judiciary Under Article III and the Finality of Judgments

More than two centuries of Supreme Court jurisprudence has reinforced the basic understanding that the Federal Judiciary has sole responsibility for deciding cases and controversies arising under the federal law.

See, e.g., Hayburn’s Case, 2

U.S. 408,

Dall. 409 , 1 L.Ed. 436 (1792);

Klein,

80 U.S. 128 ;

Plant,

514 U.S. 211 , 115 S.Ct. 1447 . As Justice Scalia observed in

Plant:

The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to

decide

them, subject to review only by superior courts in the Article III hierarchy — with an understanding, in short, that “a judgment conclusively resolves the ease” because “ ‘a judicial power’ ” is one to render dispositive judgments.

Plaut,

514 U.S. at 218-19 , 115 S.Ct. 1447 (quoting Frank J. Easterbrook,

Presidential Review,

40 Case W. Res. L.Rev. 905, 926 (1990)) (emphasis in original). Thus, a case submitted to the federal judiciary and resolved in a final judgment is settled conclusively and may not be reversed, undone, or otherwise revisited as a result of subsequent actions taken by the political branches.

Hayburn’s Case,

five out the six Supreme Court justices, while sitting in their capacities as circuit judges, considered a federal statute that gave the Secretary of War complete discretion to either accept or reject Circuit Court findings regarding the appropriate amounts of pensions owed to Revolutionary War Veterans. The Justices explained in a recorded opinion how they each found that the statute violated the separation of powers established by the Constitution. The Justices noted that the statute allowed for court judgments to be “revised and controlled by the legislature, and by an office in the executive department,” a practice “deemed radically inconsistent with the independence of that judicial power which is vested in the courts.” 2 U.S. at 410 .

Following the Civil War, the Supreme Court decided the

Klein

case in which the Court rejected an effort by the Congress to “prescribe rules of decision to the Judicial Department of the Government in cases pending before it.” 80 U.S. at 146 . At issue in

Klein

was a measure by Congress intended to direct the outcome in certain cases brought by former confederates who sought compensation for property that was either captured by the United States Government or abandoned during the course of the War. Congress had originally provided, by statute, that such cases would be decided by the Court of Claims. The right to recovery depended on proof to the satisfaction of the court demonstrating that the claimant both owned the property at issue and had not supported the rebellion in any way.

Id.

at 131 . In deciding such cases, the Court of Claims determined that a presidential pardon was sufficient to cure claimants of their participation in the rebellion.

Id.

at 132-33 . The Supreme Court expressly affirmed that principle, holding that the pardon showed the claimant “was innocent in law as though he had never participated [in the rebellion], and that his property was purged of whatever offence he had committed and relieved of any penalty that he might have occurred.”

Id.

at 133

(citing United States v. Padelford,

76 U.S. 531 , 9 Wall. 531 , 19 L.Ed. 788 (1870)).

Shortly thereafter, Congress sought to abrogate the Supreme Court’s ruling. Congress passed a new statute providing

*72

that the courts were no longer permitted to consider a pardon as evidence curing a claimant of his participation in the rebellion.

Id.

at 133-34. Instead, courts were instructed to deem the pardon as conclusive proof that the claimant had supported the rebellion, and, moreover, once proof of a claimant’s pardon was furnished by either party, the Court would cease to have jurisdiction over the case and was therefore required to dismiss the action accordingly.

Id.

at 134.

In holding that Congress had exceeded its authority under the Constitution, the Supreme Court stated:

We must think that Congress has inadvertently passed the limit which separates the legislature from the judicial power.

It is of vital importance that these powers be kept distinct. The Constitution provides that the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as the Congress shall from time to time ordain and establish.

Congress has already provided that the Supreme Court shall have jurisdiction of the judgments of the Court of Claims on appeal. Can it prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with settled law, must be adverse to the Government and favorable to the suitor. The question seems to answer itself.

The rule prescribed is also liable to just exception as impairing the effect of a pardon, and thus infringing on the constitutional power of the Executive.

Id.

at 147.

The precise meaning of

Klein

is subject to much debate in part because the Court’s decision appears to rest as much on the principle that Congress cannot nullify the President’s authority under Article II as much as it is based on any sense that the Congress had interfered with the Judicial Department’s authority to independently decide cases under Article III.

See generally

Erwin Chemerinsky, Federal Jurisdiction 183-88 (3d ed.1999);

see also Nat’l Coalition to Save Our Mall v. Norton,

269 F.3d 1092, 1096-1098 (D.C.Cir.2001) (noting that

“Klein’s

exact meaning is far from clear” and discussing differing interpretations). While the full implications of

Klein

will likely be subject to debate for years to come, the Supreme Court has recognized that, at a minimum,

Klein

stands for the proposition that Congress cannot dictate a rule of decision to courts in pending cases without amending the underlying substantive law.

Plaut,

514 U.S. at 218 , 115 S.Ct. 1447 (“Whatever the precise scope of

Klein ,

however, later decisions have made clear that its prohibition does not take hold when Congress ‘amend[s] applicable law.’ ”) (quoting

Robertson v. Seattle Audubon Soc’y,

503 U.S. 429, 441 , 112 S.Ct. 1407 , 118 L.Ed.2d 73 (1992));

accord French,

530 U.S. at 349 , 120 S.Ct. 2246 .

The Supreme Court has decided two eases in which it has considered federal statutes that waived res judicata and collateral estoppel in civil actions.

See United States v. Sioux Nation,

448 U.S. 371 , 100 S.Ct. 2716 , 65 L.Ed.2d 844 (1980);

Cherokee Nation v. United States,

270 U.S. 476 , 46 S.Ct. 428 , 70 L.Ed. 694 (1926). Both cases, however, concerned a waiver of those preclusion defenses by the United States Government in ongoing litigation with Indian tribes. Neither of those decisions required the Court to examine whether or to what extent Congress may pass a statute waiving res judicata or

collateral estoppel

as defenses by parties other than the Federal Government, such as private litigants or foreign governments,

*73

and the Court did not express any views on the matter.

Cherokee Nation ,

the Court reviewed the passage of a special act by Congress that permitted the Court of Claims to adjudicate Cherokee claims against the United States Government that were previously considered in a prior action that the Court had decided several years earlier. 270 U.S. at 485-86 , 46 S.Ct. 428 . In declining to give res judicata effect to the prior adjudication, the Court stressed that Congress has the authority to deem the prior judgment as waived in actions against the Federal Government.

Id.

at 486 , 46 S.Ct. 428 .

More than half a century later, the Court considered a similar issue in the case of

Sioux Nation .

The Sioux alleged that their ouster from the Black Hills of South Dakota by the United States during the late 1800s amounted to a taking under the Fifth Amendment for which just compensation was due.

See

448 U.S. at 384 , 100 S.Ct. 2716 . The question was subject to considerable litigation over a period of several decade, and Congress consistently passed legislation in an effort to help the Indians press their claim against the federal government. At each step of the way, the Sioux Indians were opposed in litigation by the Executive Branch.

At the end of the first wave of litigation in 1942, the Court of Claims first ruled against the Indians on the merits, holding that the Sioux had merely presented “a moral claim not protected by the Just Compensation Clause.”

Id.

at 384 , 100 S.Ct. 2716 . Subsequent to that decision, Congress established the Indian Claims Commission, which again considered the Sioux Indians’ Takings Clause claim regarding the Black Hills and ultimately decided the question in favor of the Indians.

Id.

at 384-85 , 100 S.Ct. 2716 . The Federal Government then appealed the Commission’s ruling to the Court of Claims.

Id.

Without reaching the merits, the Court of Claims ruled that the Sioux Indians’ claim against the Federal Government was barred by the res judicata effect of the Court’s 1942 decision. Shortly after the Court’s ruling, Congress passed special legislation directing the Court of Claims to reconsider the Takings Clause question

de novo

and without regard to the defenses of res judicata and collateral estoppel.

See id.

at 390 , 100 S.Ct. 2716 . Following that special enactment by Congress, the Court of Claims promptly reconsidered the Sioux Indian case on the merits and found in favor the Indians.

Id.

at 380-390 , 100 S.Ct. 2716 . The Supreme Court granted the Federal Government’s petition for certiorari.

In a lengthy opinion, the Supreme Court considered carefully whether Congress has “inadvertently passed the limit which separates the legislative from the judicial power” by directing the Court of Claims to reconsider the Sioux Indians’ taking case.

Id.

at 392 , 100 S.Ct. 2716 (quoting

Klein,

80 U.S. at 147 ). In holding that Congress had not encroached on the independent powers of the Judiciary under Article III, the Court relied heavily — if not exclusively — on its prior decision in

Cherokee Nation .

The Court stated:

The Holding in

Cherokee Nation

that Congress has the power to waive the res judicata effect of a prior judgment entered in the Government’s favor on a claim against the United States is dis-positive of the question here. Moreover, that holding is consistent with a substantial body of precedent affirming the broad Constitutional power of Congress to define and “to pay the Debts ... of the United States.” U.S. Const, art. I., § 8, cl. 1. That precedent speaks directly to the separation-of-powers objections discussed above.

*74

Sioux Nation,

448 U.S. at 397 , 100 S.Ct. 2716 . The Court emphasized, that consistent with

Cherokee Nation ,

numerous cases throughout history “have recognized or acted upon Congress’ power to waive the defense of res judicata to claims against the United States.”

Id.

at 398 n. 24, 100 S.Ct. 2716 (collecting cases).

Despite the Court’s conclusion that the issue was resolved by the waiver principles announced in

Cherokee Nation ,

the majority did examine the

Klein

precedent in some detail. The Court explained that unlike the statute that was found unconstitutional in

Klein ,

the waiver of res judicata with respect to actions brought by the Cherokee and Sioux Nations did not amount to an effort by Congress to control the outcome of those cases on the merits.

Id.

at 404-407, 100 S.Ct. 2716 . According to the Court, Congress was merely providing a “forum so that a new judicial review of the Black Hills claim could take place.”

Id.

at 407 , 100 S.Ct. 2716 .

Justice Rehnquist vigorously dissented. Among other points, he argued that the legislature had impermissibly taken on a judicial function by directing the rehearing of a ease that had reached a final judgment.

See id.

at 428-32 , 100 S.Ct. 2716 (Rehnquist, J., dissenting). The Justice noted that Congress’ broad powers to pay public debts under Article I had nothing to do with the question of whether Congress could direct the federal courts to rehear cases that courts had already heard and decided pursuant to the judiciary’s own independent authority under Article III.

See id.

at 429 , 100 S.Ct. 2716 . The Justice suggested that if Congress truly wanted to pay debts owed to Indians, then it could simply do so consistent with its authority to make such appropriations under Article I.

See id.

at 429-32 , 100 S.Ct. 2716 . It was offensive to the Constitution, however, for Congress to insist that Courts keep hearing cases until Congress received the outcome it desired.

Id.

at 430-32 , 100 S.Ct. 2716 . Moreover, Justice Rehnquist emphasized that res judicata is a long-standing judicial doctrine that may be exercised sua sponte by Courts consistent with the obligation to efficiently manage the business that comes before the them.

Id.

at 432-33 , 100 S.Ct. 2716 .

The very next term, the Supreme Court emphasized that res judicata is “a rule of fundamental and substantial justice, ‘of public policy and of private peace,’ which should be cordially regarded and enforced by the courts.”

Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394, 401 , 101 S.Ct. 2424 , 69 L.Ed.2d 103 (1981) (quoting

Hart Steel Co. v. R.R. Supply Co.,

244 U.S. 294, 299 , 37 S.Ct. 506 , 61 L.Ed. 1148 (1917)). The Supreme Court has since stated that the

Cherokee Nation

and

Sioux Nation

decisions are narrow rulings that merely stand for the proposition that the doctrine of separation of powers is not offended when Congress waives res judicata effect with respect to a “judgment entered in the Government’s favor on a claim against the United States.”

Plaut,

514 U.S. at 230 , 115 S.Ct. 1447 (quoting

Sioux Nation,

448 U.S. at 397 , 100 S.Ct. 2716 ).

In the watershed case of

Plaut v. Spendthrift Farm,

the Supreme Court reviewed its Article III separation-of-powers jurisprudence spanning more than three centuries — from

Haybum’s

case to

Sioux Nation

— and held that Congress may not direct the reopening of final judgments in civil actions for money damages. 514 U.S.

*75

at 218-219, 115 S.Ct. 1447 . At issue in

Plant

was an act of Congress that allowed plaintiffs to reinstate stock fraud cases that had been dismissed previously as time-barred. The dismissals were required by a set of companion Supreme Court decisions in which the Court construed the limitation period for such stock fraud actions and then determined that its ruling on the matter would be applied retroactively to pending cases.

Id.

at 214 , 115 S.Ct. 1447 (citing

Lampf, Pleva, Lip-kind, Prupis & Petigrow v. Gilbertson,

501 U.S. 350 , 111 S.Ct. 2773 , 115 L.Ed.2d 321 (1991);

James B. Beam Distilling Co. v. Georgia,

501 U.S. 529 , 111 S.Ct. 2439 , 115 L.Ed.2d 481 (1991)). A few months after those decisions were issued on June 20, 1991, Congress passed a law directing that plaintiffs who had their claims dismissed as time-barred were allowed to reinstate their actions under the limitation period that would have been applicable to their claims on June 19, 1991.

Id.

Thus, the statute purported to save all those cases that were dismissed as a result of the Supreme Court’s rulings.

The Court found that the statute clearly presented a separations-of-power issue because the enactment provided in plain terms that an individual who had received a final judgment of dismissal could nonetheless “reinstate” his previously dismissed case.

Id.

at 215-217 , 115 S.Ct. 1447 . Writing for the Court, Justice Scalia stressed that the finality of judgments issued by Article III Courts and the separation of powers under the Constitution were the fundamental principles implicated by the case. In light of those fundamental principles, neither the motive of Congress nor the manner in which it sought to have Article III courts revisit the final judgments were relevant to the Court’s determination.

Id.

at 227-28 , 115 S.Ct. 1447 . “The issue here is not the validity of the source of the legal rule that produced the Article III judgments, but rather the immunity from legislative abrogation of the judgments themselves.”

Id.

at 230 , 115 S.Ct. 1447 . Justice Scalia elaborated on this point for the Court:

To be sure, [the statute] reopens (or directs the reopening of) final judgments in a whole class of cases rather than in a particular suit. We do not see how that makes any difference. The separation-of-powers violation here, if there is any, consists of depriving judicial judgments of the conclusive effect that they had when they were announced, not of acting in a manner — viz., with particular rather than general effect — that is unusual (though, we must note, not impossible) for a legislature. To be sure, a general statute such as this one may reduce the perception that legislative interference with judicial judgments was prompted by individual favoritism; but it is legislative interference with judicial judgments nonetheless. Not favoritism, nor even corruption, but

power

is the object of the separation-of-powers prohibition. The prohibition is violated when an individual final judgment is legislatively rescinded for even the

very best

of reasons, such as the legislature’s genuine conviction (supported by all the law professors in the land) that the judgment was wrong; and it is violated 40 times over when 40 final judgments are legislatively dissolved.

Id.

at 227-228 , 115 S.Ct. 1447 (emphasis in original). Thus, the fundamental question, and perhaps the only question, that was critical to the Court’s holding in

Plant

was whether the statute had directed the reopening of final judgments entered prior to the statute’s enactment.

In defining final judgment for the purpose of its analysis under Article III, the Court was careful to explain that a final judgment is one in which the time for

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appeal has expired.

Id.

at 226-227 , 115 S.Ct. 1447 . Thus, the Court emphasized that courts must apply new law retroactively to any pending cases, including those on appeal, when Congress clearly instructs the Courts to do so.

Id.

at 226 , 115 S.Ct. 1447 (citing

United States v. Schooner Peggy,

5 U.S. 103 , 1 Cranch 103 , 2 L.Ed. 49 (1801);

Landgraf,

511 U.S. at 273-280 , 114 S.Ct. 1483 ). As the Court explained, Article III creates a single judicial department, and thus no judgment in a case is truly the final judgment of the Article III Judiciary until all potential appeals have either been foregone or exhausted.

Id.

at 227, 115 S.Ct. 1447 . Accordingly, separation of powers concerns are generally not implicated when Congress directs that a new law should be applied to cases still pending anywhere within the federal judiciary, including on appeal.

The Court concluded its opinion by underscoring the very remarkable and unique nature of the statute Congress had enacted in its effort to “reinstate” certain stock fraud actions that the Court had previously dismissed. The Court stated:

We know of no previous instance in which Congress has enacted retroactive legislation requiring an Article III court to set aside a final judgment, and for good reason. The Constitution’s separation of legislative and judicial powers denies it the Authority to do so. [The statute] is unconstitutional to the extent that it requires federal courts to reopen final judgments entered before its enactment.

Id.

at 241 , 115 S.Ct. 1447 .

Thus, the Court’s holding in

Plaut

appears based at least in part on the truly extraordinary nature of Congress’ action in directing the Article III Courts to set aside final judgments entered in certain stock fraud actions prior the legislation’s enactment.

2. Analysis of the Constitutional Question in Light of the Supreme Court’s Jurisprudence

In view of the Supreme Court’s jurisprudence in this area, the fundamental question remains whether § 1083(c) violates Article III to the extent that it applies to FSIA terrorism cases that were terminated in final judgments under § 1605(a)(7). This Court is the view that the Article III question presented in this case, requires the consideration of two distinct but related issues, each of which, when considered either individually or in concert with one another, may lead to the conclusion that § 1083(c) is unconstitutional as applied to prior FSIA actions. The first question is whether § 1083(c)(3) calls for the reopening of final judgments entered before its enactment and therefore contravenes Article III as construed by the Supreme Court in

Plaut .

The second question is assuming that § 1083(c)(3) does not direct the reopening of final judgments, does

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§ 1083(c)(2) — the waiver of res judicata and collateral estoppel effect of any prior terrorism FSIA action — nonetheless offend Article III because Congress has directed the Courts to ignore fundamental and longstanding judicial doctrine. Both issues are constitutional questions of first impression.

Does Section 1083(c)(3) Direct the Reopening of Final Judgments Entered Before its Enactment and Therefore Contravene Article III as Construed by the Supreme Court in Plaut?

Applying the principles articulated by the Supreme Court in

Plaut ,

this Court is of the view that § 1083(c) does not violate Article III of the United States Constitution. Critical to this decision today is this Court’s understanding that by enacting § 1083 — thereby repealing § 1605(a)(7) and replacing it with § 1605A — Congress and the President have accomplished a fundamental change in substantive federal law with respect to civil actions against state sponsors of terrorism. The former terrorism exception to the FSIA, § 1605(a)(7), which still controls in certain actions,

see Simon,

529 F.3d at 1192 , is “merely a jurisdiction conferring provision” devoid of any substantive law claims against foreign states.

Cicippio-Puleo,

353 F.3d at 1032 . The new terrorism exception, § 1605A, is a fundamentally different law, however, because it creates a federal cause of action against foreign states,

see

§ 1605A(c), thereby allowing for new actions that simply were not available to terrorism victims prior to the enactment of § 1083 last year. Accordingly, this case is distinguishable from

Plaut ,

in which the statute the Supreme Court found unconstitutional made no changes in substantive law and, in fact, was nothing more than a directive instructing courts to reopen stock fraud actions that had been previously dismissed as time-barred.

The change in federal substantive law that has occurred in this case should not be understated. As our Circuit first observed in the case of

Cicippio-Puleo :

“Plainly, neither section 1605(a)(7) nor the Flatow Amendment, separately or together, establishes a cause of action against foreign state sponsors of terrorism.” 353 F.3d at 1027 . As a mere jurisdiction conferring statute, § 1605(a)(7) does little more than offer a pass-through to causes of actions that may exist under state law or other sources of law.

Bodoff,

424 F.Supp.2d at 83 . In practical application before this Court, plaintiffs in actions under § 1605(a)(7) have relied on state tort law as the source of law for substantive causes of actions.

See, e.g., Rimkus,

575 F.Supp.2d at 196-99 (applying Missouri law);

Peterson II,

515 F.Supp.2d at 41-60 (applying laws from 34 different state jurisdictions, the District of Columbia, and the Philippines);

Greenbaum v. Islamic Republic of Iran,

451 F.Supp.2d 90, 101-108 (D.D.C.2006) (Lamberth, J.) (applying California and New Jersey law);

Prevatt,

421 F.Supp.2d at 159-162 (D.D.C.2006) (Lamberth, J.) (applying Georgia law).

The reliance on state tort law in the “pass-through” mechanism of § 1605(a)(7) has resulted in a total lack of uniformity in civil cases under that provision. Moreover, the lack of uniformity in turn has caused a certain degree of unfairness to plaintiffs, as the differences in tort law among the many state and territorial jurisdictions has naturally resulted in significant disparities with respect to the availability of relief for similarity situated plaintiffs. Given the unbending supremacy of the federal government in matters of foreign relations, combined with the basic aim of the anti-terrorism provision — which

*78

is to hold state sponsors of terror accountable for their role in perpetuating terrorist acts that have injured or killed Americans — this Court has long thought it odd that Congress chose to, in effect, rely on state tort law to achieve its national objectives. Ordinarily, individual state laws must “yield to the National Government’s policy, given the ‘concern for uniformity in this country’s dealings with foreign nations’ that animated the Constitution’s allocation of foreign relations power to the National Government in the first place.”

Am. Ins. Ass’n v. Garamendi,

539 U.S. 396, 413 , 123 S.Ct. 2374 , 156 L.Ed.2d 376 (2003)

(quoting Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 , 427 n. 25, 84 S.Ct. 923 , 11 L.Ed.2d 804 (1964)). Why then, for purposes of liability under the state sponsor of terror exception, should it matter at all which particular State in the Union the American plaintiff happens to hail from? But that is precisely the kind of perverse result that § 1605(a)(7) mandates. In

Peterson,

for example, hundreds of plaintiffs, all victims of the Marine barracks bombing in Lebanon, and all Americans, sought relief for a variety of claims.

Peterson II,

515 F.Supp.2d 25 . Many family members hoped to receive compensation for their emotional distress, and many were successful, but many others with precisely the same kinds of emotional distress cases, had no recovery whatsoever because they happened to be domiciled in a state that denied them standing to assert such claims.

See id.

at 44-45 . With § 1605(a)(7), Congress sent something of a mixed message: The United States is serious about deterring states sponsors of terrorism and compensating victims, but only to the extent that our individual state jurisdictions allow. If you happen to live in a state that will not permit you a substantive claim for relief, so be it.

Rather than leave the substantive law for actions under the FSIA terrorism exception at the disposal of the 50 individual states and numerous other territories, this Court expressed the view in

Flatow

that the preferable approach would have been to have a federal cause of action consistent with the traditional principle of uniformity in this Country’s dealings with foreign nations.

See

999 F.Supp. 1 at 15 . In the

Cicippio-Puleo

decision, the Court of Appeals even noted how a federal cause of action might better achieve the goals of § 1605(a)(7). The Court stated:

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 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 Congress has yet to take. And it is for Congress, not the courts, to decide when a cause of action should lie against foreign states.

353 F.3d at 1036 (emphasis added). Thus, this Court and our Circuit both stressed how a federal cause of action against foreign states could help to further the purposes of the state sponsor of terrorism exception to foreign sovereign immunity.

Congress was listening, and it of course responded by implementing a cause of ac

*79

tion within the new version of the terrorism exception, § 1605A, through the passage of the § 1083 of the 2008 NDAA. By doing so, Congress completely changed the landscape with respect to actions against state sponsors of terror. This latest version of the terrorism exception is not a mere jurisdiction conferring or “pass-through” statute, but rather it is a source of substantive federal law — a uniform federal standard designed to hold rogue nations accountable for their promotion of terrorists acts.

But as fundamental as this shift to federal law surely is, § 1605A also contains a broad array of substantive-rights and remedies that simply were not available under § 1605(a)(7). As emphasized in the introduction to this opinion, the changes implemented through § 1083 are in effect a new statutory regime designed to accomplish a variety of objectives in addition to the creation of a new federal cause of action. Unlike its predecessor exception, § 1605A includes, among other new entitlements, the availability of punitive damages against foreign states,

see

§ 1605A(c), the ability to assert pretrial liens on property,

see

§ 1605A(g), and plaintiffs in actions under this new exception may take advantage of new restrictions on the types of immunities that have historically protected the properties of foreign states from attachment and execution,

see

§ 1610(g). Thus, § 1605A not only creates a new substantive federal claim, but it includes greater remedies, more robust judgment enforcement provisions, and other mechanisms intended to better promote and execute the federal interest in deterring terrorist attacks and compensating victims. Consequently, § 1605A is qualitatively distinct, and, frankly, many times removed from the mere “pass-through” mechanism of § 1605(a)(7).

Ultimately, § 1083 — in both its design and practical application- — does not portend to achieve an overruling or abrogation of final judgments under § 1605(a)(7), and thus Congress in this case has not sought to impose a legislative veto of court rulings of the kind that the Supreme Court rejected in both

Plant

and

Klein .

Nothing in § 1083 directs this Court to revisit or reopen any judgments entered under § 1605(a)(7). Indeed, that sort of action is not even contemplated by the statute. Section 1083(a) simply repeals § 1605(a)(7) entirely and replaces it with the new provision § 1605A. Noticeably absent from § 1083 are any procedures or directives that might instruct this Court to re-look, reopen, or otherwise abrogate any judgments entered on the basis of state tort law in accordance with the “pass-through” regime of § 1605(a)(7); those prior judgments remain intact as final judgments. Rather than revisiting prior cases under the old “pass-through” system of § 1605(a)(7), § 1083 is geared instead toward bringing into existence a whole new statutory regime — one that has as its cornerstone a new federal cause of action against foreign states, for which punitive damages may be awarded.

Some may argue that this Court is merely embracing form over substance here, and, thus they might suggest that this Court has limited

Plant

or otherwise given that decision much too narrow of an application with respect to § 1083(c). They might argue that, regardless of whatever differences might exist between causes of actions based in state tort law under § 1605(a)(7) and the new federal cause of actions authorized under § 1605A(c), the fundamental problem is that § 1083(c) offers a mechanism by which a previously determined tort case against Iran1 may be resurrected from the dead and brought back into court disguised as a new federal claim under feder

*80

al law. Thus, some may believe today’s ruling rests on an overly narrow or technical view of the definition of cause of action, and, consequently, attaches too much significance to the change from state law to federal law with respect to the determination of liability in these actions.

See Apotex v. FDA

393 F.3d 210 (D.C.Cir.2004) (holding that, for claims preclusion purposes, “[wjhether two cases implicate the same cause of action turns on whether they share the same ‘nucleus of facts’ ”) (citations omitted).

Absent further guidance from the Supreme Court or from this Circuit, however, it is not up to this Court to expand upon the basic holding in

Plant

— that a statute is unconstitutional as a violation of the separations of power to the extent that it requires the reopening of a final judgment for money damages. 514 U.S. at 240 , 115 S.Ct. 1447 . As no reopening of a final judgment under § 1605(a)(7) occurs by virtue of our courts honoring the terms of § 1083(c), that statute withstands scrutiny under the controlling precedent. To rule otherwise, would require this Court to reach well beyond existing precedent, and that is something this trial judge is loathe to do.

Even if the fundamental shift away from the jurisdiction-conferring approach of § 1605(a)(7) is viewed as little more than a than a change in the rule of decision for liability in federal terrorism actions, Congress in this instance has amended all the underlying law by virtue of its complete repeal of § 1605(a)(7) and substitution of § 1605A. Accordingly, this case does not run afoul of

Klein

in the way the Supreme Court has construed that foundational decision.

See Plaut,

514 U.S. at 218 , 115 S.Ct. 1447 ;