Gates v. Syrian Arab Republic

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2010 Decided May 20, 2011

No. 08-7118

FRANCIS GATES, INDIVIDUALLY AND AS ADMINISTRATOR OF

THE ESTATE OF OLIN EUGENE "JACK" ARMSTRONG, JR., ET AL.,

APPELLEES

v.

SYRIAN ARAB REPUBLIC, ET AL.,

APPELLANTS

Consolidated with 09-7108

Appeals from the United States District Court

for the District of Columbia

(No. 1:06-cv-01500)

Ramsey Clark argued the cause for appellants. With him

on the briefs was Lawrence W. Schilling.

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John F. Salter Jr. argued the cause for appellees. With

him on the brief were Steven R. Perles and Edward B.

MacAllister.

Before: ROGERS and BROWN, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: This case arises from gruesome

and memorable facts. The issues presented on appeal,

however, are more mundane. The families of two American

contractors beheaded by terrorists in Iraq sued the Syrian

Arab Republic (“Syria”) in federal court. Syria did not

respond, and the district court eventually entered default

judgment in favor of the contractors’ families. Thereafter,

Syria finally appeared and filed a Rule 60(b) motion seeking

to vacate the default judgment, citing several procedural,

constitutional, and jurisdictional defects. See Fed. R. Civ. P.

60(b) (stating the “Grounds for Relief from a Final Judgment,

Order, or Proceeding.”) We find none to have merit.

I

Olin Armstrong and Jack Hensley were contractors

providing technical and operational assistance to the U.S.

military in Iraq. They were kidnapped, held hostage, and

finally, while their captors videotaped the event, viciously

slaughtered. Video of the executioner, Abu Mus’ab al-

Zarqawi, decapitating his victims was circulated on the

internet. Al-Zarqawi, and his terrorist organization, al-

Tawhid wal-Jihad (known as al-Qaeda in Iraq) claimed

responsibility for the murders. See Gates v. Syrian Arab

Republic, 580 F. Supp. 2d 53, 56, 58 (D.D.C. 2008) (citing

U.S. Dep’t of State, Office of the Coordinator for

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Counterterrorism, Country Reports on Terrorism 2005 220

(2006)).

The families of Hensley and Armstrong (collectively,

“the Families”) brought state law claims against Syria, Syrian

Military Intelligence, President Bashar al-Assad, and Director

of Military Intelligence Asif Shawkat, under the Foreign

Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602, et

seq.1 The Families alleged, in part, that Syria provided

material support to both Zarqawi and al-Qaeda, facilitating

the deaths of Hensley and Armstrong. Syria did not respond

or otherwise enter an appearance in court. As a result, the

Clerk of the Court entered a procedural default against Syria

and the district court subsequently held a three-day

evidentiary hearing to determine whether the Families could

establish their claims “by evidence satisfactory to the court.”

28 U.S.C. § 1608(e) (providing protections for foreign states

against procedural defaults).

The FSIA provides immunity to foreign states from the

jurisdiction of United States courts. 28 U.S.C. § 1604.

Sections 1605 through 1607 waive this immunity when, inter

alia, the foreign state provides material support for hostage

taking or is designated a state sponsor of terrorism. Id.

(“[F]oreign state[s] shall be immune from the jurisdiction of

the courts of the United States and of the States except as

provided in sections 1605 to 1607 of this chapter.”). Syria

has been designated a state sponsor of terrorism since 1979.

1

The Syrian Military Intelligence and the individual defendants are

considered part of the state itself under the FSIA. See 28 U.S.C.

§ 1603(a), (b); Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d

1024, 1033–34 (D.C. Cir. 2004), superseded by statute, 28 U.S.C.

§ 1605A; Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234

(D.C. Cir. 2003).

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When the Families initiated this suit, § 1605(a)(7) of the FSIA

created a federal “judicial forum for the compensation of

victims and the punishment of terrorist states.” Cicippio-

Puleo, 353 F.3d at 1033; see also id. at 1027 (“Section

1605(a)(7) [of the FSIA] merely waives the immunity of a

foreign state without creating a cause of action against

it . . . .”). In addition, § 1606 exempted foreign states from

liability for potential punitive damages. See 28 U.S.C.

§ 1606.

Three weeks after the evidentiary hearing, but before the

district court issued its opinion, Congress passed, and the

President signed into law, the National Defense Authorization

Act for Fiscal Year 2008 (“NDAA”), Pub. L. No. 110–181,

122 Stat. 3 (2008). Section 1083(a) of the NDAA amended

the FSIA by repealing § 1605(a)(7), and adding a new

provision, § 1605A, in its stead. Unlike its predecessor,

§ 1605A creates a federal rule of decision against foreign

states and provides for punitive damages. See Simon v.

Republic of Iraq¸ 529 F.3d 1187, 1190 (D.C. Cir. 2008), rev’d

on other grounds sub nom., Republic of Iraq v. Beaty, 129

S.Ct. 2183 (2009), (noting § 1083(a) of the NDAA also

abrogated Cicippio-Puleo, 353 F.3d 1024). In addition, new

§ 1605A may apply to “pending cases” initially brought under

§ 1605(a)(7) “on motion made” under NDAA

section 1083(c)(2). Pub. L. 110-181, § 1083(c)(2)(A), 122

Stat. at 342–43 (stating that an action brought under

§ 1605(a)(7) must “be given effect as if the action had

originally been filed under § 1605A of title 28, United States

Code.”)

In February, 2008, the Families moved to proceed under

§ 1605A, arguing their federal claim for relief was “the same

as the claim for relief previously asserted and served upon

Defendants, except for the ministerial substitution by

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Congress of 1605A in place of 1605(a)(7).” Gates v. Syrian

Arab Republic, 646 F. Supp. 2d 79, 89 (D.D.C. 2009)

(quoting Pls.’ motion to proceed under new statute). Syria

again failed to respond. The district court granted the

Families’ motion, holding that new service of process was not

necessary (“Conversion Order”). Order Granting Motion for

Leave to Proceed under Pub. L. 110-181, Feb. 27, 2008,

Gates v. Syrian Arab Republic, (No. 06-1500), reprinted at

J.A. 245. Then, on September 26, 2008, the district court

granted default judgment in favor of the Families, awarding

damages in excess of $400 million (“Default Judgment

Order”). Gates, 580 F. Supp. 2d at 75. In so doing, the

district court found service of process perfected against Syria

under 28 U.S.C. § 1608(a), which governs service on foreign

states. Id. at 64.

Syria appealed the district court’s Default Judgment

Order, arguing the Families did not effectuate service of

process and the district court lacked jurisdiction. Rather than

remand the case, this court placed Syria’s appeal in abeyance,

“pending the district court’s decision whether it intends to

vacate the default judgment or otherwise grant relief.” See

Dist. Ct. Docket No. 64 (citing Hoai v. Vo, 935 F.2d 308, 312

(D.C. Cir. 1991)).

Thereafter, Syria filed a motion in the district court

seeking relief from judgment under Rule 60(b). Syria asked

the district court to set aside its Default Judgment Order

because it was void, see Fed. R. Civ. P. 60(b)(4), and for other

reasons justifying relief, see Fed. R. Civ. P. 60(b)(6).

Interpreting its jurisdiction to be limited under Hoai, 935 F.2d

at 312,2 the district court denied Syria’s motion under Rule

2

In Hoai, this court noted when a Rule 60(b) motion and an appeal

are pending at the same time—as is the case here—“the District

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60(b)(4), but indicated it would vacate the Conversion Order

and amend its Default Judgment Order if it had jurisdiction to

do so. See Gates, 646 F. Supp. 2d at 83–84, 91 (“Rule 60(b)

Order”). Under this proposed disposition, the Families could

proceed under former § 1605(a)(7), which did not provide for

punitive damages, rather than under new § 1605A. Id. at 91.

On appeal, Syria makes a multitude of arguments. For

example, Syria argues this court lacks jurisdiction because the

FSIA conflicts with Article 2 of the U.N. Charter,

international laws, and international norms. Syria also argues

the case is a non-justiciable political question. These

arguments are specious and clearly resolved by this court’s

prior cases, including some that involved Syria and its

counsel. See Wyatt v. Syrian Arab Republic, 266 F. App’x 1

(D.C. Cir. 2008); Simon, 529 F.3d 1187. Similarly, Syria

argues the FSIA is unconstitutional because future acts of

Congress or the President may impair any final judgment in

this case in violation of separation of powers principles.

[Blue 64–73.] Precedent forecloses this argument as well.

Syria’s constitutional claim is not ripe because neither

Congress nor the President has invalidated, retroactively, a

judgment in this case. See Texas v. United States, 523 U.S.

296, 300 (1998) (“[A] claim is not ripe for adjudication if it

rests upon ‘contingent future events that may not occur as

anticipated, or indeed may not occur at all.’”) (quoting

Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568,

580–81 (1985)). In any event, the FSIA does not vest

authority in the President to review the judgments of federal

Court may consider the 60(b) motion and, if the District Court

indicates that it will grant relief, the appellant may move the

appellate court for a remand in order that relief may be granted.”

935 F.2d at 312 (citing Reuber v. United States, 750 F.2d 1039,

1051 n.16 (D.C. Cir. 1984) (as amended Jan. 23, 1985)).

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courts. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218

(1995).

Only two arguments require our attention. Syria argues

the district court’s Rule 60(b) Order was in error, and its

Default Judgment Order void, because Syria never received

service of process. Further, Syria contends remand is

appropriate to give the district court “opportunity to grant

further relief to Syria as the district court indicated it would

do,” i.e., vacate the Conversion Order and require the

Families to proceed under former § 1605(a)(7), rather than

new § 1605A.

II

Section 1608 of the FSIA governs service of process

“upon a foreign state.” 28 U.S.C. § 1608. That section states,

in pertinent part, that service may be made “by sending a copy

of the summons and complaint and a notice of suit, together

with a translation of each into the official language of the

foreign state, by any form of mail requiring a signed receipt,

to be addressed and dispatched by the clerk of the court to the

head of the ministry of foreign affairs of the foreign state

concerned.” Id. § 1608(a)(3).

Syria does not dispute the Families initiated service

through the clerk of the court as required by § 1608(a)(3).

Nor does Syria dispute the clerk of court addressed and

dispatched copies of the summons, complaint, notice of suit,

and translations thereof to the Syrian Ministry of Foreign

Affairs. Syria simply argues it did not receive the package

because DHL, the mail carrier employed by the clerk, did not

deliver it. [Blue 12–18.] The district court found otherwise,

and we review that finding for clear error. See Price v.

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Socialist People’s Libyan Arab Jamahiriya, 389 F.3d 192,

197–98 (D.C. Cir. 2004).

In determining whether Syria received service of process,

the district court relied on a letter DHL sent to the Families’

counsel, Edward Macallister. See Letter from Jay Bitsuc,

Shipment Inquiry Research Specialist, DHL Express, to

Edward MacAllister (Nov. 13, 2006), reprinted at J.A. 114.

The letter states that DHL traced the package mailed by the

clerk of court and found it “was delivered to the consignee on

October 30, 2006 at 10:27 A.M. signed for by ESAM.” Id.

DHL attached to the letter a copy of a delivery log indicating

delivery of the same Airbill completed by the clerk of court.

Id., reprinted at J.A. 115. Syria presented no contrary

evidence to the district court, choosing instead to rely upon

counsel’s contrary statement of fact. But Syria’s factual

argument—that the DHL letter is a fraud—is speculative.

Neither the lack of intermittent tracking information, nor the

four-day processing delay between Macallister’s request for

information and DHL’s letter in response, suggest the DHL

letter is a fabrication. Further, Syria’s legal argument—

asserting the district court improperly allocated the parties’

respective burdens under sovereign immunity law and

principles of fairness—is wrong. Under Rule 60(b), “the

party seeking to invoke [Rule 60(b)] bears the burden of

establishing that its prerequisites are satisfied.” McCurry ex

rel. Turner v. Adventist Health Sys./Sunbelt, Inc., 298 F.3d

586, 592 (6th Cir. 2002); see also “R” Best Produce, Inc. v.

DiSapio, 540 F.3d 115, 126 (2d Cir. 2008); In re Worldwide

Web Sys. Inc., 328 F.3d 1291, 1299 (11th Cir. 2003); United

States v. Western Elec. Co., Inc., 46 F.3d 1198, 1204 (D.C.

Cir. 1995) (describing the burden of party seeking relief under

Rule 60(b) as a “heavy” one). Moreover, because Syria is not

immune under the FSIA, no principle of sovereign immunity

law upsets the parties’ respective burdens under Rule 60(b);

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nor do oft cited ephemeral principles of fairness, whatever

those principles may suggest in any given context, abstract or

concrete. The district court did not clearly err in finding that

Syria received service of process under the FSIA.

III

In its Rule 60(b) Order, the district court indicated it

would grant other relief to Syria “appropriate to accomplish

justice.” Gates, 646 F. Supp. 2d at 91 (citing Klapprott v.

United States, 335 U.S. 601, 614–15 (1949)). Notably, the

district court would vacate the Conversion Order and amend

the Default Judgment Order accordingly. Id. The Families’

§ 1605A claim presented a “new claim for relief,” the district

court reasoned, and therefore required new service of process,

which the Families did not provide Syria in this case. Gates¸

646 F. Supp. 2d. at 89–91 (citing Fed. R. Civ. P. 5(a)(2)

(requiring new services of process for “a pleading that asserts

a new claim for relief . . . ”)). Syria agrees remand is

appropriate on this basis. Whether or not claims converted

under section 1083 of the NDAA are “new claims” requiring

new service of process is a question of law we review de

novo. See Price, 389 F.3d at 197.

The plain language of the NDAA indicates a claim

converted under section 1083(c)(2) is not a “new claim for

relief.” The relevant text states:

With respect to any action that: . . . was brought under

section 1605(a)(7) . . . before the date of the enactment

of [§ 1605A], . . . and . . . is before the courts in any

form, including on appeal or motion under Rule 60(b)

of the Federal Rules of Civil Procedure, that action,

and any judgment in the action shall, on motion made

by plaintiffs to the United States district court where

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the action was initially brought, or judgment in the

action was initially entered, be given effect as if the

action had originally been filed under section

1605(a)(7) of title 28, United States Code.

Pub. Law 110-181, § 1083(c)(2)(A), 122 Stat. at 342–43.

First, new claims must be asserted in pleadings. See Fed. R.

Civ. P. 8(a). But section 1083 allows for conversion “on

motion made.” A motion is not a pleading. Indeed, Rule 7(b)

describes a “motion” as “a request for an order” and Rule 7(a)

does not include a “motion” in its list of documents

considered “pleadings.” See Fed. R. Civ. P. 7(a) (listing

documents considered pleadings). Second, the statute

requires a converted action to “be given effect as if the action

had originally been filed under § 1605(a)(7).” NDAA

§ 1083(c)(2)(A). Treating a converted action as a new claim

would undermine this statutory language because it would

treat the claim as if it were originally filed under § 1605A, not

§ 1605(a)(7). Third, section 1083 allows for conversion “on

appeal.” But pleadings cannot be amended on appeal. See

Fed. R. Civ. P. 15(a). Thus, the statutory language suggests

the converted claim is not a “new claim” requiring an

amended pleading. Finally, § 1605A changes the applicable

rule of decision, it does not create a new cause of action.

Section 1605A provides for a federal cause of action, whereas

§ 1605(a)(7) relied upon state law claims. Both sound in tort,

however. And both claims arise from the same underlying

acts of terrorism. It is therefore the applicable rule of decision

that is new when an action is converted under section 1083,

not the claim itself.

The district court did not address the text of the NDAA,

because it assumed the Families’ § 1605A claim “should have

been served on Syria” even if the Families otherwise met the

statutory requirements to convert their claim. Gates, 646 F.

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Supp. 2d at 90 (Rule 60(b) Order). But see Conversion Order

(granting the Families motion to convert under section 1083

of the NDAA and noting further service of process “is not

required”). In so doing, the district court relied upon Rule

5(a)(2), which requires that “a new claim for relief must be

served.” Gates, 646 F. Supp. 2d at 91. But this analysis

misses the point. The FSIA provides special rules for service

of process on foreign states and therefore the applicability of

Rule 5(a)(2) in this context is dubious. See Edmond v. U.S.¸

520 U.S. 651, 657 (1997) (“Ordinarily, where a specific

provision conflicts with a general one, the specific governs.”).

In any event, Rule 5(a)(2) applies to “a pleading” and not to a

“motion made,” as prescribed by section 1083 of the NDAA.

IV

The Families adequately effected service of process

against Syria when they first filed suit under former

§ 1605(a)(7) of the FSIA. Before the district court entered

judgment, the Families moved to convert their action and

proceed under new § 1605A in accordance with section 1083

of the NDAA. Under section 1083 of the NDAA, the

Families did not have to serve Syria anew, because the

statutory text does not treat converted claims as new claims

for relief. In addition, Rule 5(a)(2) does not apply in this

case, given the FSIA’s specific statutory service of process

provision. As a result, there is no need to remand this case for

the district court to grant Syria other relief. The judgment of

the district court denying Syria’s motion under Rule 60(b)(4)

is

Affirmed.