Roeder v. Islamic Republic of Iran

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2011 Decided July 15, 2011

No. 10-5355

DAVID M. ROEDER, ET AL.,

APPELLANTS

v.

ISLAMIC REPUBLIC OF IRAN AND UNITED STATES OF AMERICA,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-00487)

George J. Terwilliger III argued the cause for appellants.

With him on the briefs were Daniel B. Levin, V. Thomas

Lankford, and Terrance G. Reed.

Lewis S. Yelin, Attorney, U.S. Department of Justice, argued

the cause for appellee United States of America. With him on

the brief were Tony West, Assistant Attorney General, Ronald C.

Machen, U.S. Attorney, and Douglas N. Letter, Attorney. R.

Craig Lawrence, Assistant U.S. Attorney, entered an appear-

ance.

Before: GARLAND and GRIFFITH, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

2

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge: Plaintiffs are Americans

taken hostage in Iran in November 1979, and their families. The

Iranians held the hostages for nearly 15 months. They were

freed only when the United States and the Islamic Republic of

Iran entered into the Algiers Accords. See generally

Iran–United States: Settlement of the Hostage Crisis, 20 I.L.M.

223 (1981). In the Accords, the United States made promises

to Iran in order to secure the hostages’ release. One of these was

a promise to bar the prosecution against Iran of any legal action

by a U.S. national arising out of the hostage taking.

For the sake of clarity we will refer to plaintiffs collectively

as “Roeder.” In Roeder’s last action against Iran for damages,

we held that the Foreign Sovereign Immunities Act (FSIA), Pub.

L. No. 94-583, 90 Stat. 2891 (codified as amended in scattered

sections of 28 U.S.C.), and in particular, the 2002 amendments

to the Act, did not abrogate the promise made by the United

States in the Algiers Accords to bar actions such as Roeder’s.

See Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir.

2003) (Roeder I).

Five years after we affirmed the dismissal of his suit,

Roeder brought a new complaint in the district court, this time

relying on Congress’s 2008 amendments to the FSIA. As in the

past case, Iran did not respond, the United States intervened and

filed a motion to dismiss, and the district court granted the

motion. The question in this appeal is whether the 2008

amendments to the FSIA reneged on the promise of the United

States in the Accords to bar Roeder’s suit.

“The FSIA provides generally that a foreign state is immune

from the jurisdiction of the United States courts unless one of

3

the exceptions listed in 28 U.S.C. § 1605(a) applies.” Roeder I,

333 F.3d at 235. A provision in effect when Roeder brought the

last suit, but now repealed—28 U.S.C. § 1605(a)(7)(A)

(2000)—stated that immunity did not apply if the foreign state

had been designated a state sponsor of terrorism when the act in

question occurred or as a result of the act. Iran did not meet that

description. See Roeder I, 333 F.3d at 235.1 In 2001 and 2002,

while Roeder I was pending in the district court, Congress

amended the FSIA specifically to deprive Iran of immunity for

acts related to Roeder’s case. See Pub. L. No. 107–77, § 626(c),

115 Stat. 748, 803 (2001); Pub. L. No. 107–117, Div. B, § 208,

115 Stat. 2230, 2299 (2002) (correcting scrivener’s error);

Roeder I, 333 F.3d at 235. Even so, the Algiers Accords

remained a bar to Roeder’s suit. Roeder I, 333 F.3d at 237. The

2001 and 2002 amendments, we held, did not provide the “clear

expression” of congressional intent necessary to abrogate an

executive agreement. Id. at 237.2

1

As we explained, Iran was designated a state sponsor of

terrorism in 1984. But that designation apparently rested on Iran’s

support of terrorism outside its borders and not on any acts related to

the hostage crisis. Roeder I, 333 F.3d at 235.

2

We explained this clear statement rule in Roeder I:

[N]either a treaty nor an executive agreement will be considered

“‘abrogated or modified by a later statute unless such purpose on

the part of Congress has been clearly expressed.’” Trans World

Airlines v. Franklin Mint Corp., 466 U.S. 243, 252 (1984)

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

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

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

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

through legislation.

***

4

After our decision in Roeder I, Congress again amended the

FSIA. The 2008 amendments created a generally applicable

private right of action against foreign states for state sponsorship

of terrorism. See 28 U.S.C. § 1605A(c) (Supp. II 2008). The

amendment was a response to Cicippio-Puleo v. Islamic

Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004), which held

that the FSIA itself did not create a right of action against

foreign states and that plaintiffs had to identify some other

source of law (such as state law) granting them a right to

recover. The 2008 amendments also reenacted, with minor

changes, the provision granting the district court jurisdiction

over claims related to the acts involved in Roeder’s case. See 28

U.S.C. § 1605A(a)(2)(B) (Supp. II 2008).3

Executive agreements are essentially contracts between nations,

and like contracts between individuals, executive agreements are

expected to be honored by the parties. Congress (or the President

acting alone) may abrogate an executive agreement, but

legislation must be clear to ensure that Congress—and the

President—have considered the consequences. The “requirement

of clear statement assures that the legislature has in fact faced, and

intended to bring into issue, the critical matters involved in the

judicial decision.” Gregory v. Ashcroft, 501 U.S. 452, 461 (1991).

Roeder I, 333 F.3d at 237-38 (parallel citations omitted).

3

28 U.S.C. § 1605A(a) now provides, in relevant part:

(a) In general.—

(1) No immunity.—A foreign state shall not be immune from

the jurisdiction of courts of the United States or of the States

in any case not otherwise covered by this chapter in which

money damages are sought against a foreign state for personal

injury or death that was caused by an act of torture,

extrajudicial killing, aircraft sabotage, hostage taking, or the

provision of material support or resources for such an act if

5

Roeder argues that the 2008 FSIA amendments, by creating

a federal cause of action against state sponsors of terrorism,

rendered our country’s commitment to bar claims like Roeder’s

a nullity. As the district court pointed out, during the five years

between Roeder I and the 2008 amendments, in the 107th,

108th, 109th, and 110th sessions of Congress, legislators

tried—and failed—“to enact legislation that would explicitly

abrogate the provision of the Algiers Accords barring the

hostages’ suit.” Roeder v. Islamic Republic of Iran, 742 F.

Supp. 2d 1, 5 (D.D.C. 2010) (quoting JENNIFER K. ELSEA,

CONGRESSIONAL RESEARCH SERV., SUITS AGAINST TERRORIST

STATES BY VICTIMS OF TERRORISM 31 (2008), available at

http://www.fas.org/sgp/crs/terror/RL31258.pdf). Just as in

Roeder I, the amendments that finally passed “do not, on their

face, say anything about the Accords.” 333 F.3d at 236. In

Roeder I we gave an example of language that might suffice to

abrogate even without an express reference to the Accords, id.

at 237, but the 2008 amendments contain no such language or

such act or provision of material support or resources is

engaged in by an official, employee, or agent of such foreign

state while acting within the scope of his or her office,

employment, or agency.

(2) Claim heard.—The court shall hear a claim under this

section if—

***

(B) the act described in paragraph (1) is related to Case

Number 1:00CV03110 (EGS) in the United States

District Court for the District of Columbia.

The case number referred to in subsection (a)(2)(B) is the number of

one of Roeder’s prior suits.

6

anything comparable. Nevertheless, Roeder believes that the

new, general, terrorism cause of action unambiguously conflicts

with the prosecution bar contained in the Algiers Accords and

that the latter must necessarily give way.4

The premise of Roeder’s argument is that the 2008 amend-

ments to the FSIA permitted him to revive his dismissed claims

and invoke the new federal cause of action in 28 U.S.C.

§ 1605A(c) against Iran. We do not think this is so clear.

Section 1605A(c) created a statutory cause of action for

terrorism-related injuries against a foreign state that is a “state

sponsor of terrorism” as described by 28 U.S.C.

§ 1605A(a)(2)(A)(i).5 As relevant here, this includes nations the

4

Nothing in our decision in Roeder I turned on whether Roeder

had a cause of action under federal law or under state law or under

some other source of law. But we will assume arguendo that if the

2008 amendments unambiguously created a cause of action available

to Roeder against Iran, this would have the effect of abrogating the

Accords.

5

Section 1605A(c) reads in whole:

(c) Private right of action.—A foreign state that is or was a state

sponsor of terrorism as described in subsection (a)(2)(A)(i), and

any official, employee, or agent of that foreign state while acting

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

be liable to—

(1) a national of the United States,

(2) a member of the armed forces,

(3) an employee of the Government of the United States, or of

an individual performing a contract awarded by the United

States Government, acting within the scope of the employee's

employment, or

(4) the legal representative of a person described in paragraph

(1), (2), or (3),

7

State Department had designated sponsors of terrorism at the

time of the filing of a prior, “related action” in cases “filed under

[§ 1605A] by reason of section 1083(c)(3) of [the National

Defense Authorization Act for Fiscal Year 2008] . . ..” 28

U.S.C. § 1605A(a)(2)(A)(i)(II). Iran had been so designated by

the time Roeder brought the last suit. But the question remains

whether Roeder I was a “related action” within the meaning of

§ 1083(c)(3).

Section 1083(c) of the National Defense Authorization Act

for Fiscal Year 2008—titled “Application to Pending

Cases”—determines if plaintiffs in cases filed before the

addition of the federal terrorism cause of action can rely on the

new cause of action when filing a new action under § 1605A

that would otherwise be barred by the statute of limitations in 28

U.S.C. § 1605A(b). See Pub. L. No. 110-181, § 1083(c), 122

Stat. 3 (codified at 28 U.S.C. § 1605A note).6 Subsection (c)(3)

provides, “If an action arising out of an act or incident has been

timely commenced under [28 U.S.C. § 1605(a)(7)], . . . any

other action arising out of the same act or incident may be

brought under [28 U.S.C. § 1605A]” if it is commenced within

60 days of the entry of judgment in the original action or of the

date of enactment of the amendments. Roeder contends that this

for personal injury or death caused by acts described in subsection

(a) (1) of that foreign state, or of an official, employee, or agent of

that foreign state, for which the courts of the United States may

maintain jurisdiction under this section for money damages. In

any such action, damages may include economic damages,

solatium, pain and suffering, and punitive damages. In any such

action, a foreign state shall be vicariously liable for the acts of its

officials, employees, or agents.

6

The parties have assumed—at least for the sake of this

appeal—that unless Roeder’s case falls within § 1083(c)(3), it would

be barred by the statute of limitations in 28 U.S.C. § 1605A(b).

8

provision, together with § 1605A(c), unambiguously gives him

a cause of action to sue Iran.

Roeder I was filed under § 1605(a)(7), the prior terrorism

exception to foreign sovereign immunity. Roeder’s new action

duplicates the old one. Yet the related action provision of

§ 1083(c)(3) does not seem to contemplate that the later, related

suit would be one that simply replicates the earlier action. The

section speaks of “any other action,” and it turns on whether the

new action “arises from” the same act or incident, not on

whether it is identical to the prior suit or even brought by the

same plaintiff. In addition, the refiling of duplicate actions is

dealt with in § 1083(c)(2), but that is a provision Roeder cannot

invoke because it expressly requires that the earlier action be

pending at the time of the 2008 amendments. See National

Defense Authorization Act for Fiscal Year 2008,

§ 1083(c)(2)(a)(iv). We mention this not because it is conclu-

sive, but because it casts some doubt on whether § 1083(c) is as

clear as Roeder makes it out to be.

The district court relied on other considerations in deciding

that the 2008 amendments were not the sort of clear expression

that would be needed to disregard the Accords’ bar against suit.

We are content to place our decision on the district court’s

analysis. The court found that § 1083(c)(3) was ambiguous

regarding whether plaintiffs, such as Roeder, whose cases were

not pending at the time of the 2008 amendments could rely on

that provision to resurrect their actions long after they had been

dismissed.

In arguing against this conclusion, Roeder points to the

express pending-action requirement contained in § 1083(c)(2),

which allows plaintiffs who had relied on § 1605(a)(7) as

creating a cause of action to convert their claim to one under

§ 1605A(c). He contends that the absence of similar language

9

in § 1083(c)(3) strongly suggests that subsection (c)(3) contains

no such requirement. We do not deny the force of Roeder’s

argument. In the end it may well represent the best reading of

§ 1083(c)(3). But our focus is not on the best reading. Legisla-

tion abrogating international agreements “must be clear to

ensure that Congress—and the President—have considered the

consequences.” Roeder I, 333 F.3d at 238. An ambiguous

statute cannot supercede an international agreement if an

alternative reading is fairly possible. Fund for Animals, Inc. v.

Kempthorne, 472 F.3d 872, 879 (D.C. Cir. 2006). This clear

statement requirement—common in other areas of federal law,

see Roeder I, 333 F.3d at 238—“assures that the legislature has

in fact faced, and intended to bring into issue, the critical matters

involved in the judicial decision.” Gregory v. Ashcroft, 501

U.S. 452, 461 (1991).

With respect to whether Roeder’s current suit qualifies as

a related action, § 1083(c)(3) is unclear. Section 1083(c)(3)

refers to “an action” that “has been timely commenced” under

the FSIA’s prior terrorism exception. Roeder contends that this

unambiguously refers to every action brought before the

enactment of § 1083 that was timely when filed. We think,

however, that the language can fairly be read to refer only to

those cases timely commenced under § 1605(a)(7) that were still

pending when the Act was passed. If Congress had meant to

embrace more than just pending cases, it might have used the

past simple, “was timely commenced.” And it might have

placed § 1083(c)(3) outside of a section entitled “Application to

Pending Cases.” Instead, Congress chose language suggesting

that the predicate action in § 1083(c)(3) is one that has been

commenced but is still ongoing. It is thus unclear whether

Roeder—whose prior case was not pending and whose new case

would have been time barred—could sue under § 1605A(c).

10

Roeder’s resort to canons of construction does not render

§ 1083(c)(3) any more certain. For the reasons given by the

district court, we are not convinced that a pending-action

requirement would make any part of § 1083(c)(3) wholly

superfluous. See Roeder, 742 F. Supp. 2d at 16. And while “it

is generally presumed that Congress acts intentionally and

purposefully when it includes particular language in one section

of a statute and omits it from another,” BFP v. Resolution Trust

Co., 511 U.S. 531, 537 (1994), the strength of that presumption

varies with context, see City of Columbus v. Ours Garage &

Wrecker Serv., Inc., 536 U.S. 424, 435-36 (2002). Here, the

relevant subsections were added at different times in the

legislative process, serve different purposes and share little

similar language. Compare H.R. 1585, 110th Cong., § 1087 (as

passed by Senate, Oct. 1, 2007), with H.R. 1585, 110th Cong.,

§ 1083 (as passed by Senate, Dec. 14, 2007). In these circum-

stances, the presumption is not of such power that it alone makes

§ 1083(c)(3) unambiguous.

Because of § 1083(c)(3)’s ambiguity regarding whether

Roeder, whose case was not pending at the time of enactment,

may file under the new terrorism cause of action, we are

required again to conclude that Congress has not abrogated the

Algiers Accords. We also reject Roeder’s alternative argument

that the reenacted and partially revised jurisdictional provisions

of the FSIA abrogate the Accords. These provisions are not

meaningfully different than they were when presented to us in

Roeder I. For the foregoing reasons, the order of the district

court is

Affirmed.