# Beaty v. Republic of Iraq

> District Court, District of Columbia · March 20, 2007 · 480 F. Supp. 2d 60

URL: https://www.frixlaw.com/law-library/cases/2487394

## Case

- **Full name:** Robin BEATY, Et Al., Plaintiffs, v. REPUBLIC OF IRAQ, Defendant
- **Court:** District Court, District of Columbia
- **Decided:** March 20, 2007
- **Citations:** 480 F. Supp. 2d 60; 2007 U.S. Dist. LEXIS 19191; 2007 WL 836804
- **Precedential status:** Published
- **Opinion:** Opinion by Bates
- **Judges:** Bates
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2487394

## Opinion text

MEMORANDUM OPINION
BATES, District Judge.
United States citizens Kevin Beaty and William Barloon were detained and allegedly held as hostages by the former Iraqi regime in the 1990s. Along with other former detainees and their spouses, Beaty and Barloon filed suit against Iraq in 1996, eventually obtaining a default judgment against it.
See Daliberti v. Republic of Iraq,
146 F.Supp.2d 19 (D.D.C.2001)
(“Daliberti II”); Daliberti v. Republic of Iraq,
97 F.Supp.2d 38 (D.D.C.2000)
(“Daliberti I”).
The plaintiffs in this case — Jordan Beaty, Austin Makenzie Beaty, William R. Barloon, Bryan C. Barloon, and Rebecca L. Barloon — are the children of Kevin Beaty and William Barloon. Invoking the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605 (a)(7), plaintiffs seek damages against Iraq for the emotional distress that they allegedly suffered during their fathers’ captivity.
Iraq has filed a motion to dismiss in which it asserts that plaintiffs have failed to state a claim upon which relief can be granted, that this Court lacks subject-matter jurisdiction, and that plaintiffs’ claims are either nonjusticiable or preempted because of their potential to undermine United States foreign policy. The United States has submitted a statement of interest reaffirming its position that actions taken by the political branches after the filing of the original complaint divest this Court of jurisdiction. For their part, plaintiffs maintain that recent decisions of the D.C. Circuit and this Court establish that there is a jurisdictional basis for their suit, that their claims are justiciable, and that they are entitled to partial summary judgment based on the facts established in the
Daliberti
case. Pending before the Court are defendant’s motion to dismiss and plaintiffs’ motion for partial summary judgment. For the reasons set forth below, the Court will grant in part and deny in part both motions.
BACKGROUND
The facts underlying the detention and captivity of Beaty and Barloon are recounted at length in the two reported decisions in the
Daliberti
litigation,
see
146 F.Supp.2d at 21-23 , 97 F.Supp.2d at 41-42 , and have not been disputed here. (These facts are drawn from plaintiffs’ Third
*63
Amended Complaint, as well as the
Dali-berti
opinions, of which this Court may take judicial notice.
See Estate of Heiser v. Islamic Republic of Iran,
466 F.Supp.2d 229, 263 (D.D.C.2006);
Salazar v. Islamic Republic of Iran,
370 F.Supp.2d 105 , 109 n. 6 (D.D.C.2005).) Beaty and Barloon resided in Kuwait and worked in civilian capacities following the conclusion of the Persian Gulf War in 1991. Beaty worked as a drilling supervisor on an oil rig, and Barloon supervised aircraft maintenance and overhaul. Third Am. Compl. ¶ 7. In April of 1993, Beaty was detained by Iraqi border guards and taken at gunpoint first to Basra and later to Baghdad.
Id.
at ¶¶ 9-11. For a period of 205 days, Beaty lived in squalid conditions in two Iraqi prisons, where he was deprived of food and water, as well as medication for his heart condition.
Id.
at ¶¶ 10-11. Iraq conditioned Beaty’s release on either the lifting of the economic sanctions that had been imposed upon it or a significant monetary ransom.
Id.
at ¶ 12. Only after efforts by Beaty’s wife Robin and prominent political figures, including former President Jimmy Carter and then-Oklahoma Senator David Boren, did Iraq release Beaty.
Id.
at ¶¶ 12-13.
Barloon was detained by an Iraqi border guard in March of 1995.
Id.
at ¶ 14. Like Beaty, he was transported first to Basra and then to Baghdad, where, again like Beaty, he was eventually held at the now infamous Abu Ghraib prison.
Id.
at ¶ 16. During his 126 days of detention, Barloon was deprived of food, water, and other necessities.
Id.
at ¶ 17. His captors beat him and, on one occasion, subjected him to a mock execution.
Id.; see Daliberti II,
146 F.Supp.2d at 23 . Diplomatic efforts by the Clinton Administration, and in particular the intervention of then-Congressman Bill Richardson, led to Barloon’s release in late 1995. Third Am. Compl. ¶¶ 18-20.
Beaty and Barloon, joined by their wives, two other detainees, and those detainees’ spouses, filed suit against Iraq in May of 1996. The four men sought damages for kidnapping, false imprisonment, and torture; their wives sought recovery for intentional infliction of emotional distress and loss of consortium.
See Daliberti I,
97 F.Supp.2d at 41-42 . The jurisdictional basis for the suit was provided by legislation that Congress had enacted just weeks earlier: section 221(a) of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
See
Pub.L. 104-132, § 221 (a), 110 Stat. 1214 , 1242-43 (April 24, 1996). A key provision in that legislation deprived countries designated as state sponsors of terrorism of sovereign immunity from suits seeking money damages “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 such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.”
Id.
(codified at 28 U.S.C. § 1605 (a)(7)).
After the Clerk of the Court entered default against it, Iraq appeared by counsel and filed a motion to dismiss the civil suit.
Daliberti I,
97 F.Supp.2d at 42 . Judge Friedman concluded that the plaintiffs had “met their burden of showing that the actions they complain of fall under the state sponsored terrorism exception to foreign sovereign immunity in 28 U.S.C. 1607(a)(7),” specifically by demonstrating that they had been the victims of “torture” and “hostage taking” — two of the acts enumerated in the statute.
Id.
at 45-46 . He also rejected Iraq’s contentions that the state-sponsored terrorism exception is unconstitutional and that adjudication of the suit was barred by the aet-of-state doc
*64
trine.
Id.
at 48-55 . Accordingly, he denied Iraq’s motion to dismiss. After its motion was denied, Iraq’s counsel withdrew from the case, and the Clerk of the Court once again entered default against Iraq. The case was then transferred to Judge Oberdorfer, who conducted a four-day bench trial, issued findings of fact, and entered final judgment in favor of the plaintiffs.
Daliberti II,
146 F.Supp.2d at 21 . That judgment awarded millions of dollars in damages to the male plaintiffs for the physical hardships suffered during their captivity and their psychological problems since release, as well as millions of dollars to the men’s wives for “loss of the society and companionship of their husbands.”
Id.
at 24, 26-27 .
Not covered by the
Daliberti
judgment, however, were the Beaty and Barloon children. Those five children, plaintiffs here, filed a complaint in February of 2003 seeking monetary damages for the “mental anguish, pain and suffering during the period of their fathers’ incarceration.” Compl. ¶ 10. (The filing of their complaint almost two years after the
Daliberti
judgment was not just happenstance: a ten-year statute of limitations governs cases brought under § 1605(a)(7),
see
28 U.S.C. § 1605 (f), and Beaty’s detention and captivity began and ended in 1993.) But shortly after plaintiffs filed their complaint, events outside and inside the courthouse dramatically altered the existing legal and political landscape. A United States-led coalition commenced a military invasion of Iraq on March 20, 2003, eventually toppling the regime headed by Saddam Hussein. In support of the war effort, Congress passed the Emergency Wartime Supplemental Appropriations Act (“EWSAA”), Pub.L. No. 108-11, 117 Stat. 559 (2003). The EWSAA provided funding for military operations in Iraq and homeland security measures in the United States. It also gave the President the authority to suspend certain laws that had barred aid to Iraq and to “make inapplicable with respect to Iraq ... any other provision of law that applies to countries that have supported terrorism.” Pub.L. No. 108-11, § 1503 , 117 Stat. at 579. President George W. Bush exercised the authority granted by Congress when he issued Presidential Determination 2003-23 on May 7, 2003. Echoing the language of the EWSAA, the Presidential Determination purported to “make inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 ... and any other provision of law that applies to countries that have supported terrorism.” 68 Fed.Reg. 26,459 (May 7, 003). The President explained in a message to Congress the following week his understanding that the laws made “inapplicable” to Iraq in Presidential Determination 2003-23 included 28 U.S.C. § 1605 (a)(7), the state-sponsored terrorism exception to the FSIA.
See
39 Weekly Comp. Pres. Doc. 647, 647-48 (May 22, 2003).
At virtually the same time that the political branches worked to adapt the laws to a changing political and military situation, the U.S. Court of Appeals for the D.C. Circuit was issuing a series of important rulings addressing unanswered questions as to the contours of 28 U.S.C. § 1605 (a)(7). One of those decisions,
Cicippio-Puleo v. Islamic Republic of Iran,
353 F.3d 1024 (D.C.Cir.2004), was issued shortly after the first status conference in this case. The court of appeals in
Cicippio
resolved two questions of far-reaching significance in the FSIA context. It first held that § 1605(a)(7) confers subject-matter jurisdiction but “does not create a private right of action.”
Id.
at 1034. A second key question related to the so-called Flatow Amendment, 28 U.S.C. § 1605 note, a provision passed in 1996 that allowed U.S. nationals injured or
*65
killed by acts of terrorism to seek money damages — including punitive damages— from officials or agents of foreign states designated as sponsors of terrorism. That provision, the court of appeals held, “creates a private right of action against officials, employees, and agents of foreign states,” but this “cause of action is limited to claims against those officials in their
individual,
as opposed to their official, capacities.”
Id.
In other words, the Fla-tow Amendment does not provide a cause of action against the foreign state itself. Because the plaintiffs in
Cicippio
may have labored under the misconception that the Flatow Amendment provided just such a cause of action, the court of appeals remanded the case to give them “an opportunity to amend their complaint to state a cause of action under some other source of law, including state law.”
Id.
at 1036 .
In light of Presidential Determination No. 2003-23 and the D.C. Circuit’s decision in
Cicippio-Puleo ,
this Court invited the United States to file a statement of interest expressing the government’s position on subject-matter jurisdiction. Dkt. #4 (Order of 1/29/2004). The United States accepted the Court’s invitation and submitted a brief in which it argued that the Presidential Determination, made pursuant to authority granted by Congress in the EWSAA, had restored Iraq’s sovereign immunity effective immediately and that this Determination did not contain an exception (express or implied) for terrorism-related suits that had been filed prior to the passage of the EWSAA.
See
First Statement of Interest of the United States at 8, 12. To the extent that the Presidential Determination did not divest the Court of subject-matter jurisdiction, the United States maintained that plaintiffs’ complaint suffered from the same defect as that of the plaintiffs in
Cicippio-Puleo
and thus failed to state a claim, “at least as currently pled.”
Id.
at 28.
Before this Court had the chance to evaluate the United States’ main argument, the D.C. Circuit did so in
Aeree v. Republic of Iraq,
370 F.3d 41 (D.C.Cir.2004), ce
rt. denied,
544 U.S. 1010 , 125 S.Ct. 1928 , 161 L.Ed.2d 792 (2005). The principal question in
Aeree
was whether the language in § 1503 of the EWSAA authorized the President to make the state-sponsored terrorism exception to the FSIA inapplicable to Iraq. Answering that “exceedingly close question” in the negative, the
Aeree
majority concluded that the phrase “any other provision of law that applies to countries that have supported terrorism,” when read in context, “authorizes the President to make inapplicable to Iraq those provisions of law that impose economic sanctions on Iraq or that present legal obstacles to the provision of assistance to the Iraqi Government,” but was “not intended to alter the jurisdiction of the federal courts under the FSIA”.
Id.
at 51, 55 . Section 1605(a)(7) of the FSIA, the court held, was not a provision included within the Congressional grant of authority, and the President’s exercise of power beyond that grant was thus without effect.
Id.
at 57 . The court went on to conclude that the plaintiffs had nevertheless failed to state a claim upon which relief could be granted because, as in
Cicippio-Puleo ,
they had not “identif[ied] a particular cause of action arising out of a specific source of law.”
Id.
at 59-60. Although agreeing with the majority that the plaintiffs’ suit must be dismissed and that the statutory-construction issue presented a close question, then-Circuit Judge (now Chief Justice) Roberts would have accepted the United States’ argument that § 1503 of the EWSAA granted the President authority to make 28 U.S.C. § 1605 (a)(7) inapplicable to Iraq and that Presidential Determination 2003-23 “ousted the federal courts of jurisdiction in
*66
cases that relied on that exception to Iraq’s sovereign immunity.”
Id.
at 60, 62 (Roberts, J., concurring in part and concurring in the judgment). The United States, having secured on behalf of Iraq (which did not appear) dismissal of the plaintiffs’ suit, did not seek further review of the statutory-interpretation issue before either the en banc D.C. Circuit or the U.S. Supreme Court.
Aeree ,
along with the earlier decision in
Cicippio-Puleo ,
forced the parties to the present litigation to reassess their positions. Iraq entered an appearance through counsel. The United States submitted a second and, upon the Court’s invitation, a third Statement of Interest. Plaintiffs filed a series of amended complaints designed to comply with Cicippio-Puleo, culminating in a Third Amended Complaint. In the three-count complaint, plaintiffs allege that they were aware of their fathers’ captivity in Iraq, that they were able to see through media sources where their fathers were being held, and that they learned that their fathers were suffering mentally and emotionally.
See
Third Am. Comp. ¶ 22. Plaintiffs claim to have “endured severe mental anguish, depression, humiliation, anxiety, and pain and suffering as a direct result of their fathers’ captivity.”
Id.
at ¶ 21. They ground their prayer for money damages in three causes of action: intentional infliction of emotional distress under state common law (Count I), violations of customary international law incorporated into federal common law (Count II), and loss of solati-um under federal common law (Count III). Plaintiffs contend that there are no disputed facts and that they are entitled to partial summary judgment. Iraq, backed in part by the United States, argues that plaintiffs’ suit should be dismissed on jurisdictional and prudential grounds, or alternatively because plaintiffs have failed to state a valid claim. The parties ably advocated their positions at a motions hearing held on March 2, 2007, and their respective motions are now ripe for resolution.
STANDARDS OF REVIEW
Iraq seeks dismissal of plaintiffs’ complaint on the grounds that it fails to state a claim upon which relief can be granted, that it presents a nonjusticiable political question, and that this Court lacks jurisdiction. The first of these three grounds constitutes a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, whereas the latter two challenge subject-matter jurisdiction and must be evaluated under Rule 12(b)(1).
See, e.g., Gonzalez-Vera v. Kissinger,
449 F.3d 1260, 1262 (D.C.Cir.2006) (political-question doctrine goes to subject-matter jurisdiction). “[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”
Scheuer v. Rhodes,
416 U.S. 232, 236 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974);
see Leatherman v. Tarrant Cty. Narcotics and Coordination Unit,
507 U.S. 163, 164 , 113 S.Ct. 1160 , 122 L.Ed.2d 517 (1993);
Phillips v. Bureau of Prisons,
591 F.2d 966, 968 (D.C.Cir.1979). Therefore, the factual allegations must be presumed true, and plaintiffs must be given every favorable inference that may be drawn from the allegations of fact.
Scheuer,
416 U.S. at 236 , 94 S.Ct. 1683 ;
Sparrow v. United Air Lines, Inc.,
216 F.3d 1111, 1113 (D.C.Cir.2000). At the same time, courts need not accept as true “a legal conclusion couched as a factual allegation,” nor inferences that are unsupported by the facts set out in the complaint.
Trudeau v. Federal Trade Comm’n,
456 F.3d 178, 193 (D.C.Cir.2006) (quoting
Papasan v. Attain,
478 U.S. 265, 286 , 106 S.Ct. 2932 , 92 L.Ed.2d 209 (1986)).
*67
Under Rule 12(b)(1), those seeking to invoke the jurisdiction of a federal court-plaintiffs here — bear the burden of establishing that the court has jurisdiction.
See U.S. Ecology, Inc. v. U.S. Dep’t of Interior,
231 F.3d 20, 24 (D.C.Cir.2000);
see also Grand Lodge of Fraternal Order of Police v. Ashcroft,
185 F.Supp.2d 9, 13 (D.D.C.2001) (a court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority”). ‘“[Fjactual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.”
Grand Lodge,
185 F.Supp.2d at 13 -14 (quoting 5A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure
§ 1350 (2d ed.1987)). A court may consider material other than the allegations of the complaint in determining whether it has jurisdiction, so long as it still accepts the factual allegations in the complaint as true.
See Jerome Stevens Pharmaceuticals, Inc. v. Food and Drug Admin.,
402 F.3d 1249, 1253-54 (D.C.Cir.2005). Additionally, “[wjhere the motion to dismiss is based on a claim of foreign sovereign immunity, which provides protection from suit and not merely a defense to liability ... the court must engage in sufficient pretrial factual and legal determinations to satisfy itself of its authority to hear the case before trial.”
Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan,
115 F.3d 1020, 1027-28 (D.C.Cir.1997) (citation and quotation marks omitted).
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure will not be granted unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson,
355 U.S. 41, 45-46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957);
see also Haynesworth v. Miller,
820 F.2d 1245, 1254 (D.C.Cir.1987). All that the Federal Rules of Civil Procedure require of a complaint is that it contain “ ‘a short and plain statement of the claim’ that will give the defendant fail-notice of what the plaintiffs claim is and the grounds upon which it rests.”
Dura Pharmaceuticals, Inc. v. Broudo,
544 U.S. 336, 346 , 125 S.Ct. 1627 , 161 L.Ed.2d 577 (2005) (quoting
Conley,
355 U.S. at 47 , 78 S.Ct. 99 ). “Given the Federal Rules’ simplified standard for pleading, ‘[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ ”
Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 514 , 122 S.Ct. 992 , 152 L.Ed.2d 1 (2002) (quoting
Hishon v. King & Spalding,
467 U.S. 69, 73 , 104 S.Ct. 2229 , 81 L.Ed.2d 59 (1984)).
Also pending is plaintiffs’ motion for partial summary judgment. Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact.
See Celotex Corp. v. Catrett,
477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by “informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Id.
(quoting Fed.R.Civ.P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, a court must regard the non-movant’s statements as true and accept all evidence and make all
*68
inferences in the non-movant’s favor.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position.
Id.
at 252 , 106 S.Ct. 2505 . By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment.
Celotex, 477
U.S. at 322, 106 S.Ct. 2548 . “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.”
Anderson, 477
U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].”
Id.
at 252 , 106 S.Ct. 2505 .
DISCUSSION
In moving to dismiss plaintiffs’ complaint, Iraq has a number of arrows in its quiver. It first argues, largely with reference to legal and political developments since the United States-led invasion in 2003, that adjudication of plaintiffs’ claims “would compromise critical U.S. foreign policy objectives,” and that the case must therefore be dismissed.
See
Def.’s Opp’n and Reply at 5. Should the Court decline to dismiss the case on jurisdictional or related prudential grounds, Iraq maintains that plaintiffs’ suit should be dismissed on the alternative and independent basis that they have failed to state a claim under the state and federal causes of action invoked in their complaint.
See
Def.’s Memorandum in Support of Motion to Dismiss (“Def.’s Mem.”) at 14-19; Def.’s Opp’n and Reply at 24-29. Emphasizing that none of Iraq’s arguments turns on factual disputes, plaintiffs maintain that they are entitled to partial summary judgment under applicable precedents that establish (1) that this Court has jurisdiction over their claims, and (2) that they have stated valid claims under state and federal common law.
A. Jurisdictional and Prudential Grounds for Dismissal
The FSIA provides the exclusive basis for obtaining jurisdiction over foreign countries in United States courts.
See Saudi Arabia v. Nelson,
507 U.S. 349, 355 , 113 S.Ct. 1471 , 123 L.Ed.2d 47 (1993). Foreign states are “presumptively immune from the jurisdiction of United States courts,” which can assert jurisdiction only if one of the “specified exception[s]” to foreign sovereign immunity applies.
Id.
Plaintiffs in this case argue that jurisdiction lies under the statutory exception for state sponsors of terrorism. That exception divests foreign states of immunity from suits seeking money damages “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” where the perpetrator was “an official, employee, or agent of [the] foreign state [who was] acting within the scope of his or her office, employment or agency.” 28 U.S.C. § 1605 (a)(7). “In enacting this provision,” the D.C. Circuit has explained, “Congress sought to create a judicial forum for compensating the victims of terrorism, and in so doing to punish foreign states who have committed or sponsored such acts and deter them from doing so in the future.”
Price v. Socialist People’s Libyan Arab Jamahiriya,
294 F.3d 82, 88-89 (D.C.Cir.2002).
Section 1605(a)(7) and its neighboring provisions specify which foreign states may be sued and under what circumstances. For one thing, jurisdiction under this section is available only for suits that seek money damages for injuries caused by certain enumerated types of conduct. The statute likewise instructs courts to
*69
locate the definitions for the types of qualifying conduct in specific sources. The phrase “hostage taking” at issue here, for example, is to be given the definition found in Article 1 of the International Convention Against the Taking of Hostages,
see
28 U.S.C. § 1605 (e)(2), which applies the term to “[a]ny person who seizes or detains and threatens to kill, injure or continue to detain another person ... in order to compel a third party ... to do or abstain from doing any act as an explicit or implicit condition for release of the hostage.” International Convention Against the Taking of Hostages, Dec. 17, 1979, art. 1, T.I.A.S. No. 11,081. Three additional conditions must be met before a party can obtain jurisdiction over a foreign state under the state-sponsored terrorism exception: (1) the foreign state must be one that was designated “as a state sponsor of terrorism ... at the time the act occurred,” (2) the foreign state must be afforded an opportunity to arbitrate claims based on acts that occurred in that state, and (3) the party or the victim must be a United States national.
See
28 U.S.C. § 1605 (a)(7)(A), (B);
see also Price,
294 F.3d at 89 ;
Daliberti I,
97 F.Supp.2d at 44 .
There is no dispute here that plaintiffs have satisfied these threshold conditions. (Indeed, Judge Friedman has already so ruled with respect to their parents.
See Daliberti I,
97 F.Supp.2d at 44-46 .) Plaintiffs seek money damages arising from their fathers’ detention and imprisonment at the hands of Iraqi officials. Such detention and imprisonment qualifies as “hostage taking” under these circumstances because Iraq used Beaty and Barbón as bargaining chips to extract concessions from the United States government.
See id.
at 46 . At the time Iraq detained and held the men, it was designated as a state sponsor of terrorism. 55 Fed.Reg. 37,793 (Sept. 13, 1990); 31 C.F.R. § 596.201 . Beaty and Barloon are United States nationals, as are their children, who attached an offer to arbitrate to their initial complaint in this case. Accordingly, plaintiffs have satisfied all of the prerequisites to obtaining jurisdiction over a foreign state pursuant to the state-sponsored terrorism exception to the FSIA.
Iraq does not argue otherwise. It instead points to developments since the filing of the original complaint and to several legal doctrines that, it contends, counsel against adjudication of plaintiffs’ suit. According to Iraq, dismissal is appropriate because (1) the President, acting pursuant to Congressional authorization, has restored Iraq’s sovereign immunity for terrorist acts of the prior regime; (2) plaintiffs’ suit presents a nonjusticiable political question; (3) adjudication is barred by the recently resuscitated doctrine of foreign-affairs preemption; and (4) resolving plaintiffs’ claims would contravene the act-of-state doctrine. All of these interrelated arguments are variations on a common theme — that permitting plaintiffs to proceed with a lawsuit that could expose the fledgling Iraqi government to millions of dollars in liability runs counter to the foreign-policy interests of the United States and may place the Court in the uncomfortable position of resolving claims that the Executive Branch does not want resolved in this forum.
As the following discussion reveals, however, the Court’s position is awkward not because adjudication of plaintiffs’ relatively narrow claims portends grave international repercussions, but rather because Iraq seeks the same result — dismissal without reaching the merits — that the Court would be obliged to order had the D.C. Circuit adopted the position advanced by the United States, and accepted by then-Circuit Judge Roberts, in
Aeree .
The
Aeree
decision, as all sides acknowledged at the mo
*70
tions hearing, casts a long shadow over this case. It is therefore with that decision that the Court begins its analysis.
1. Restoration of Iraq’s Sovereign Immunity
Iraq and the United States lead with an argument that both know is unavailing: that Presidential Determination 2003-23, which implemented the authority conferred by § 1503 of the EWSAA, restored in part Iraq’s sovereign immunity by suspending the application of § 1605(a)(7) to Iraq.
See
Def.’s Opp’n and Reply at 10; Third Statement of Interest of the United States at 2. Both Iraq and the United States concede, as they must, that the D.C. Circuit in
Aeree
rejected this very argument. 370 F.3d at 51 ;
id.
at 60-64 (Roberts, J., concurring in part and concurring in the judgment). The
Aeree
majority acknowledged just how close the question was, but ultimately concluded that § 1503 of the EWSAA was only “aimed at legal provisions that present obstacles to assistance and funding for the new Iraqi Government and was not intended to alter the jurisdiction of the federal courts under the FSIA.”
Id.
at 51. Judge Roberts, on the other hand, argued persuasively in his separate concurrence that the phrase “ ‘[a]ny other provision’ should be read to mean ‘any other provision,’ not, as the majority would have it, ‘provisions that present obstacles to assistance and funding for the new Iraqi government.’ ”
Id.
at 60 (Roberts, J., concurring in part and concurring in the judgment). Under his interpretation of § 1503, the plain language of that statute authorized the President to make § 1605(a)(7) inapplicable to Iraq, and the Presidential Determination invoking that authority had “ousted the federal courts of jurisdiction” over suits brought under that exception.
Id.
This Court believes that there is considerable force in the
Aeree
concurring opinion, and would be inclined to adopt that position if free to do so. Nonetheless, this Court remains bound by the
Aeree
majority’s interpretation of the EWSAA. Iraq recognizes as much and asks only that the Court “render a ruling on this jurisdictional issue ... so that defendant may, if necessary, seek further review of it before the
en banc
D.C. Circuit or the Supreme Court.” Def.’s Opp’n and Reply at 10. The Court will do just that, reiterating here that
Aeree
forecloses the argument that the President has made 28 U.S.C. § 1605 (a)(7) inapplicable to Iraq and thus partially restored Iraq’s sovereign immunity-
2. Political-Question Doctrine
The political-question doctrine, which is “ ‘primarily a function of the separation of powers,’ ”
Schneider v. Kissinger,
412 F.3d 190, 193 (D.C.Cir.2005) (quoting
Baker v. Carr,
369 U.S. 186, 210 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962)), “excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.”
Japan Whaling Ass’n v. American Cetacean Soc.,
478 U.S. 221, 230 , 106 S.Ct. 2860 , 92 L.Ed.2d 166 (1986). The touchstone for determining whether a case presents a nonjusticiable political question remains the nonexhaustive list of factors set forth by the Supreme Court in
Baker v. Carr. See Bancoult v. McNamara,
445 F.3d 427, 432 (D.C.Cir.2006). “Prominent on the surface of any case held to involve a political question,” the Court explained,
is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it;
*71
or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker,
369 U.S. at 217 , 82 S.Ct. 691 . A court may dismiss a case as nonjusticiable if it finds any one of those six factors.
See Schneider,
412 F.3d at 194 . At the same time, courts may not shirk their responsibility of deciding live controversies properly before them “[ujnless one of these [six] formulations is inextricable from the case,” a conclusion that should be reached only after a “discriminating inquiry into the precise facts and posture of the particular case.”
See Baker,
369 U.S. at 217 , 82 S.Ct. 691 ;
Bancoult,
445 F.3d at 432-33 .
Cases implicating national-security concerns and foreign relations are among those most likely to present political questions. As the D.C. Circuit recently put it, these two topics “serve as the quintessential sources of political questions.”
Bancoult,
445 F.3d at 433 . It is not surprising, therefore, that Iraq places a heavy emphasis on developments since the United States-led invasion of that country in 2003, including actions taken by the political branches. Armed with snippets from the Statements of Interest that the United States has filed in this matter, the text of an Executive Order designed to protect Iraqi assets, figures as to the cost of reconstruction efforts, estimates placing Iraq’s potential liability in U.S. courts in the hundreds of millions of dollars, and an obligatory citation to the number of American soldiers fighting there, Iraq insists that adjudication of plaintiffs’ claims would unreasonably burden its recently installed government and thereby undermine critical U.S. foreign policy interests.
See
Def.’s Mem. at 20-25 & n. 9; Def.’s Opp’n and Reply at 10-15. Such interference with foreign policy goals as articulated by the political branches, Iraq submits, renders this case nonjusticiable under the political-question doctrine.
But despite some broad statements linking the political-question doctrine to any issue that implicates United States foreign policy interests, the Supreme Court has made clear that not “every case or controversy which touches foreign relations lies beyond judicial cognizance.”
See Baker,
369 U.S. at 311 , 82 S.Ct. 691 ;
Japan Whaling Ass’n,
478 U.S. at 229-230, 106 S.Ct. 2860 ;
see also Bancoult,
445 F.3d at 435 . The
Baker
Court itself listed six areas related to foreign affairs in which courts could resolve legal questions notwithstanding the primacy of the political branches.
See
369 U.S. at 212-13 , 82 S.Ct. 691 . And in
Japan Whaling Ass’n ,
the Court declined to dismiss on political-question grounds a lawsuit that sought to compel the Secretary of Commerce to declare Japan in violation of an international whaling agreement. 478 U.S. at 230, 106 S.Ct. 2860 . Decisions of the D.C. Circuit in the foreign-affairs area, of which there are many in recent years, likewise require a case-specific application of the
Baker
factors, with a focus “upon ‘the particular question posed, in terms of the history of its management by the political branches.’ ”
Hwang Geum Joo v. Japan,
413 F.3d 45, 49 (D.C.Cir.2005) (quoting
Baker,
369 U.S. at 211 , 82 S.Ct. 691 ). In its most recent application of the political-question doctrine, the court of appeals further emphasized that the focus must be on the “specific claims” at issue.
Omar v. Harvey,
479 F.3d 1, 6-7 , 2007 WL 420137 , at
*72
*8 (D.C.Cir. Feb.9, 2007). This focus conforms to the Supreme Court’s oft-quoted reminder that the doctrine “is one of ‘political questions,’ not one of ‘political cases.’ ”
Baker,
369 U.S. at 217 , 82 S.Ct. 691 ;
see also Omar,
479 F.3d at 6 -7 (citing
Baker
for this proposition). Hence, Iraq cannot secure dismissal on political-question grounds simply by invoking the foreign-affairs label; a closer examination of both the “specific claims” brought by plaintiffs and the issues alleged to constitute “political questions” is required.
That examination, conducted through the lens of the six sometimes-overlapping
Baker
factors,
see Alperin v. Vatican Bank,
410 F.3d 532, 544 (9th Cir.2005), reveals that plaintiffs’ claims are “fully justiciable.”
See Omar,
479 F.3d at 7-8 . To begin with, plaintiffs’ claims are more narrow than some of Iraq’s rhetoric suggests. Their claims do not bring into question the propriety of United States policy toward Iraq either at this moment or at the time plaintiffs’ fathers were taken hostage by the former regime. Rather, the Third Amended Complaint seeks monetary damages, pursuant to a well-defined statutory scheme established by Congress and a developing body of case law in this district, for the emotional distress and loss of companionship that plaintiffs allegedly suffered when their fathers were detained and held as hostages over ten years ago. Moreover, the Court’s rulings below further limit the scope of this case to resolution of a single cause of action. On the surface, then, this case is similar to the numerous other suits against state sponsors of terrorism brought under § 1605(a)(7) and uniformly found to be jus-ticiable.
The next task is to identify with precision the ways in which adjudicating plaintiffs’ surviving claim might infringe on the constitutional prerogatives of the political branches. At the motions hearing, counsel for Iraq helpfully clarified the two “policy questions” that Iraq believes this case implicates and whose resolution supposedly belongs to the political branches, and to the Executive Branch in particular. First, Iraq insists that “the Constitution commits to the Executive, not the judiciary, the critical foreign policy determinations involved in promoting the reconstruction of Iraq and shielding a now friendly government from potentially crippling liability for acts of a predecessor dictatorship.” Def.’s Opp’n and Reply at 11. In other words, it is up to the Executive to decide whether Iraq’s new government should face hundreds of millions of dollars in liability for the transgressions of the prior regime.
See
Motions Hearing Prelim. Transcript (“Prelim. Tr.”) at 27 (describing “the effect of damages liability” on the new Iraqi government as one of the two policy questions).
The second policy question is one that, although lurking in Iraq’s filings, defense counsel articulated with precision for the first time at the motions hearing. Seizing on isolated passages from the United States’ First Statement of Interest, and in particular on footnote 9 of that document, Iraq maintains that adjudicating this suit in federal court conflicts with the United States’ longstanding foreign policy of resolving the existing tort claims of its nationals via state-to-state negotiations with a formerly hostile, but now friendly, regime. Prelim. Tr. at 22-23, 27, 30. As for the footnote in question, it was written in the specific context of the potential effect of § 1503 of the EWSAA on pending claims and was appended to a paragraph that emphasized the “indisputable authority” of the political branches “to terminate claims that stand as an obstacle to achieving the Nation’s foreign policy goals.” First Statement of Interest at 16. The footnote clarifies that the statute and sub
*73
sequent Presidential Declaration “have not extinguished plaintiffs’ claims on the merits,” even while insisting that the political branches could “plainly” have done so via a treaty or an Executive Agreement had they so desired.
Id.
at 16 n. 9 (arguing that the actions of the political branches had the “effect ... [of] preserving] plaintiffs’ claims ... pending the establishment of a successor government capable of negotiating the diplomatic or other resolution of claims arising from the misdeeds of its predecessor”).
Evaluating plaintiffs’ specific claims in light of the two policy questions identified by Iraq, the Court finds “no independent reason why the claims presented ... raise any warning flags as infringing on the prerogatives of the Executive Branch.”
See Sarei v. Rio Tinto, PLC,
456 F.3d 1069, 1082 (9th Cir.2006) (declining to dismiss under the political-question doctrine a suit by residents of Papa New Guinea against an international mining company). The first policy question centers on the possibility that a hefty damages award in this case and others similar to it could saddle the fledgling Iraqi government with an unmanageable debt. Iraq’s argument on this point, however, puts the cart before the horse, focusing on a possible outcome of plaintiffs’ suit rather than on the actual process of adjudicating the one claim properly before the Court. Plaintiffs’ lawsuit has the potential to implicate United States foreign policy only if Iraq is found hable and then only to the extent that monetary damages are assessed against it. In other words, plaintiffs’ suit could
indirectly
affect the United States’ ongoing efforts to stabilize the new Iraqi government only in so far as it seriously impacts the Iraqi fisc. But the D.C. Circuit has consistently stated — and recently reaffirmed' — -that “an indirect effect on foreign affairs [does] not automatically render a case nonjusticiable.”
Bancoult,
445 F.3d at 435 (citations omitted). The single claim that this Court would be adjudicating does not on its face present a political question, and can be viewed as implicating foreign affairs in only the “indirect” way that all damages actions under the FSIA do: by creating the potential for a significant judgment against a foreign state.
Adjudication of this suit also has little to do with Iraq’s second asserted policy question — the wisdom and/or viability of state-to-state negotiations to resolve existing tort claims. Some three years after the United States filed its First Statement of Interest in this case, there remains no indication whatsoever that the Executive Branch has begun seeking via diplomatic means a remedy for these particular plaintiffs or those similarly situated to them. It is likewise unclear when and if Iraq will develop “a successor government capable of negotiating the diplomatic or other resolution of claims arising” from the Saddam Hussein regime.
See
First Statement of Interest at 16 n. 9. Events in Iraq change daily, and neither counsel for Iraq nor the United States has provided any assurances that the United States’ three-year-old intention to resolve outstanding tort claims diplomatically has advanced beyond just that: an abstract intention.
See Gross v. German Found. Indus. Initiative,
456 F.3d 363 , 380, 390-91 (3d Cir.2006) (declining to dismiss on political-question grounds in part because there was no evidence “that the United States government is engaged in any form of diplomacy or negotiations” to resolve the issue at the heart of the plaintiffs’ claims);
Alperin,
410 F.3d at 549-50, 558 (emphasizing, in refusing to dismiss on political-question grounds claims against a foreign bank, that the plaintiffs’ “lawsuit is the only game in town” and there were “[n]o ongoing government negotiations, agreements, or settlements ... on the horizon”). Accepting
*74
this latest iteration of Iraq’s political-question argument, in short, would require nothing less than a judicial act of faith— one that would leave the availability of a remedy for these plaintiffs to the vagaries of Iraq’s internal struggles and the mere possibility that the Executive Branch will one day undertake negotiations that it has not initiated during the course of either this litigation or the consolidated cases pending before another member of this court.
See Vine v. Republic of Iraq,
Civ. A. Nos. 01-2674, 03-0691, 03-0888(HHK). So long as the diplomatic solution hinted at by Iraq and the United States remains more fantasy than reality, there is no direct conflict between American foreign policy and adjudication of the particular claims at issue here.
See Gross,
456 F.3d at 387 (“The mere existence of the Executive’s power to extinguish claims ..., without an exercise of that power, does not render those claims nonjusticiable by virtue of being committed to a co-equal branch.”).
A recent decision in the ongoing
Vine
litigation provides further support for rejecting Iraq’s political-question argument. The plaintiffs in
Vine
are United States citizens who were allegedly detained, barred from leaving the country, and in some cases tortured, during Iraq’s invasion of Kuwait in 1990.
See Vine v. Republic of Iraq,
459 F.Supp.2d 10, 14-15 (D.D.C.2006). Iraq argued in
Vine
that “the question of its liability in these [consolidated] cases ... presents a nonjusticiable political question, primarily because any decision to award plaintiffs compensation would undermine the efforts of the President and Congress to create a stable Iraq.”
Id.
at 20 (citation and quotation marks omitted). Judge Kennedy rejected this argument. He first clarified that the plaintiffs’ specific claims did “not require an evaluation of any executive or congressional policy decision or value judgment.”
Id.
On the contrary, he explained, the cases “involve[d] the liability of a foreign sovereign under a well-defined statutory scheme — a statutory scheme that was enacted by both houses of Congress and signed by the President.”
Id.
Finally, Judge Kennedy rejected the contention that the dramatic changes in the United States’ policy toward Iraq justified dismissal. The language of § 1605(a)(7), he noted, conferred on the federal courts jurisdiction over claims against foreign states who were designated as sponsors of terrorism “at the time the [terrorist] act occurred,” signaling Congress’s intent to allow suits “against even those foreign nations whose sponsorship of terrorism ceases.”
Id.; see also Kilburn v. Republic of Iran,
441 F.Supp.2d 74, 78 (D.D.C.2006) (concluding that Libya, despite a Presidential Determination ending its status as a state sponsor of terrorism, was still amenable to suit under § 1605(a)(7)),
sum. aff'd,
2006 U.S.App. LEXIS 26051 (D.C.Cir. Oct. 19, 2006);
Owens v. Republic of Sudan,
374 F.Supp.2d 1 , 27 n. 27 (D.D.C.2005) (noting that “Congress has chosen to condition an action under section 1605(a)(7) on whether the foreign state was a designated country at the time of the events at issue (and not at the time of the suit)”). The
Vine
court thus “deeline[d] to ‘convert what is essentially an ordinary tort suit into a nonjusti-ciable political question’ merely because its claims ‘arise in a politically charged context.’ ” 459 F.Supp.2d at 20 (quoting
Klinghoffer v. S.N.C. Achille Lauro,
937 F.2d 44 , 49 (2d Cir.1991)).
Iraq assails the
Vine
decision as resting on the mistaken premise that the FSIA’s express statutory grant of jurisdiction necessarily outweighs case-specific foreign-policy concerns that counsel against adjudication. Def.’s Opp’n and Reply at 13-14. It is certainly true, as Iraq contends, that the political-question doctrine applies in
*75
suits brought pursuant to the FSIA.
See, e.g., Hwang Geum Joo,
413 F.3d at 48-49 (dismissing on political-question grounds a suit asserting jurisdiction under the FSIA’s commercial-activity exception);
see also Baker,
369 U.S. at 198 , 82 S.Ct. 691 (describing the distinction between lack of subject-matter jurisdiction and nonjusticia-bility as “significant”). But Judge Kennedy did not rule otherwise in
Vine .
Rather, he reasoned that the indirect relationship between the plaintiffs’ suit and United States foreign policy in Iraq could not offset the judgment of the political branches that a foreign nation may be sued in U.S. courts for its terrorist acts even if that nation had stopped sponsoring terrorism by the time of the suit.
See
459 F.Supp.2d at 20 . The cases cited by Iraq support its general point that the political-question doctrine applies in cases where jurisdiction lies under the FSIA.
See Whiteman v. Dorotheum GmbH & Co. KG,
431 F.3d 57 , 74 n. 18 (2d Cir.2005) (commercial-activity and expropriation exceptions to FSIA);
767 Third Ave.
Assoc.
v. Consulate General of Socialist Federal Republic of Yugoslavia,
218 F.3d 152 , 162-63 (2d Cir.2000) (commercial-activity exception);
Anderman v. Federal Republic of Austria,
256 F.Supp.2d 1098, 1111 (C.D.Cal.2003) (commercial-activity and expropriation exceptions). But those cases, none of which addresses the state-sponsored terrorism exception, in no way undermine the
Vine
court’s analysis, which draws from the text and structure of § 1605(a)(7) the reasonable inference that the political branches were both aware that suits would continue after regime changes and intended that such suits be permitted. In sum, the reasoning employed and conclusion reached in
Vine
are sound and apply with equal force here.
This Court’s independent application of the six
Baker
factors leads it to the same conclusion that Judge Kennedy reached in
Vine .
The first
Baker
factor. — whether there has been a “textually demonstrable constitutional commitment of the issue[s in the case] to a coordinate political department,” 369 U.S. at 217 , 82 S.Ct. 691 — has been read as perhaps the most important of the six.
See Vieth v. Jubelirer,
541 U.S. 267, 278 , 124 S.Ct. 1769 , 158 L.Ed.2d 546 (2004) (plurality opinion) (opining that the six factors “are probably listed in descending order of both importance and certainty”). Resolution of the narrow issues before the Court here has not been “constitutionally] committed]” to either of the other branches of government. As Judge Kennedy properly recognized in
Vine ,
this Court need not
evaluate
“any executive or congressional policy decision or value judgment” in order to adjudicate plaintiffs’ claims. 459 F.Supp.2d at 20 . What the Court must instead do is
implement
the “policy decision” and “value judgment” that the political branches made when they stripped state sponsors of terrorism of sovereign immunity for conduct that was likewise clearly defined in a statute passed by Congress and signed by President Clinton.
See
28 U.S.C. § 1605 (a)(7);
see also Ungar v. Palestine Liberation Org.,
402 F.3d 274 , 280 & n. 4 (1st Cir.2005) (explaining that “[t]he very purpose” of both the FSIA and the Anti-Terrorism Act of 1991 was “to allow the
courts
to determine questions of sovereign immunity under a legal, as opposed to a political, regime”) (emphasis added). Applying standards set forth in a duly enacted statute that represents the considered judgment of the political branches is a quintessential task undertaken by the federal courts. As the Second Circuit put it in another “politically charged” case that was at bottom “an ordinary tort suit,” “[t]he department to whom this issue has been ‘constitutionally committed’ is none other than our own—
*76
the Judiciary.”
Klinghoffer,
937 F.2d at 49.
Iraq’s argument to the contrary founders for two reasons: it loses sight of the narrow issues in this suit, and it attempts an end-run around the D.C. Circuit’s decision in
Aeree .
Iraq places heavy emphasis on the contention that the Constitution places decisions concerning the liability of a now-friendly regime for the acts of its predecessor in the hands of the Executive Branch and removes these decisions from judicial cognizance.
See
Def.’s Opp’n and Reply at 11. While it is certainly true as a general matter that the Executive Branch is the first mover in the international arena, Iraq fails to explain how this Court would be making any critical foreign policy determinations simply by reaching the merits of plaintiffs’ tort claims. Iraq’s position once again confuses the United States’
general
interest in ensuring the new Iraqi government’s financial stability with the nature of this Court’s task in adjudicating the
specific
claims presented in this case. Put differently, Iraq focuses not on “political questions” that would have to be addressed in resolving plaintiffs’ specific claims, but instead on the possibility that an eventual monetary judgment against it could undermine United States foreign policy. If what converts an otherwise justiciable suit into a nonjusticiable political question, however, is the mere possibility of a “crippling” monetary judgment against Iraq, then
all
suits against Iraq, including those under the FSIA's commercial-activity exception, would likewise have to be dismissed as presenting nonjusticiable political questions.
Counsel for Iraq argued otherwise at the motions hearing, insisting that a suit alleging tortious misdeeds brought pursuant to § 1605(a)(7) is different from a dispute of a commercial nature. If this were a contract case, counsel contended, the foreign-policy concerns would not be the same because the policy of the United States “has been not to negotiate contract claims on a state-to-state basis.” Prelim. Tr. at 24. “But with regard to claims of tortious misconduct committed against its citizens during an era of hostilities,” counsel added, “it has been the uniform policy [of the United States] to negotiate those claims on a state-to-state basis.”
Id.
This argument misses the mark for many of the reasons already articulated. First, there is no indication that the United States has ever acted on a policy of negotiating with the new Iraqi government tort claims arising from mistreatment of U.S. citizens by Saddam Hussein’s regime. Second, Iraq overlooks the enactment of § 1605(a)(7), a federal statute that provides a judicial forum in which plaintiffs can assert claims arising from “tortious misconduct committed ... during an era of hostilities.”
See id.
The Court can therefore say, much as the First Circuit recently did in refusing to invoke the political-question doctrine, that this case “is a tort suit brought under a legislative scheme that Congress enacted for the express purpose of providing a [judicial forum] for injuries or death occasioned by acts of international terrorism” perpetrated by foreign states.
See Ungar,
402 F.3d at 280 ;
see also Price,
294 F.3d at 88-89 (explaining that Congress via § 1605(a)(7) “sought to create a judicial forum for compensating the victims of terrorism, and in so doing to punish foreign states who have committed or sponsored such acts and deter them from doing so in the future”). Iraq does not account for the distinct possibility that § 1605(a)(7) represents not just a barren jurisdictional provision, but also a conscious break from both traditional theories of foreign sovereign immunity and the “uniform policy” of state-to-state negotiations with now-friendly regimes that Iraq believes the United
*77
States has long maintained. The Court declines to allow the aspiration that state-to-state negotiations will someday be possible to trump the clear expression of political will embodied in § 1605(a)(7).
Iraq also fails to account fully for the D.C. Circuit’s ruling in
Aeree .
Were this Court to dismiss plaintiffs’ claims as non-justiciable — ostensibly on the theory that the Executive has expressed the intent to terminate Iraq’s exposure under § 1605(a)(7) and shield Iraqi assets from seizure — it would effectively be conferring on the Presidential Determination the precise legal effect that the D.C. Circuit has held it does not have. Counsel for Iraq acknowledged as much at the motions hearing.
See
Prelim. Tr. at 8-9 (“So the result that we are seeking is exactly the same result that a) counsel for the United States is urging and will urge in the future, and b) that the President took action to do.”);
id.
at 9 (stating that Iraq’s foreign-affairs arguments “are different means of reaching that result”). To be sure, the Court would not be expressly ruling that the Presidential Determination, in combination with the EWSAA, divests it of subject-matter jurisdiction. But the result, and to some extent the rationale, would be virtually indistinguishable: that the Executive’s view on the wisdom of shielding Iraq from liability under the state-sponsored terrorism exception requires dismissal of plaintiffs’ claims before reaching the merits.
Cf. Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp.,
549 U.S. -, 127 S.Ct. 1184, 1191 , 167 L.Ed.2d 15 (2007) (“Dismissal short of reaching the merits means that the court will not ‘proceed at all’ to an adjudication of the cause.”). Accepting Iraq’s argument on this point, then, would grant Iraq the very relief that it was denied in
Aeree .
And that would likely be true in this case as well as all others brought against Iraq under § 1605(a)(7), since all such cases implicate the same two foreign-policy concerns — the potential for “crippling” monetary judgments and interference with state-to-state negotiations. The Court is reluctant to dismiss plaintiffs’ suit on the basis of an argument that smacks of an attempt to end-run
Aeree
and that would render the court of appeals’ decision in that case effectively a nullity.
Having concluded that the first and most important
Baker
factor does not support dismissal, the Court will now address the remaining factors more rapidly. The second factor — the absence of “judicially discoverable and manageable standards,”
see
369 U.S. at 217 , 82 S.Ct. 691 — is no hurdle to adjudication of plaintiffs’ suit. Plaintiffs’ surviving claim will be resolved by applying the firmly established requirements of a federal statute (the FSIA) and the principles that courts in this district have developed for resolving claims under the FSIA’s state-sponsored terrorism exception. To the extent that plaintiffs’ surviving claim sounds in state tort law, the Court will apply eminently “manageable standards” in the form of state common law, which “provides clear and well-settled rules on which [the Court] can easily rely.”
Klinghoffer,
937 F.2d at 49.
The third and fifth
Baker
factors are likewise inapposite. “Adjudicating [the] discrete issues” raised by plaintiffs’ suit “will not require the [C]ourt to make pronouncements on foreign policy,”
Alperin,
410 F.3d at 555 , which the Court recognizes is something best left to the political branches. Plaintiffs’ suit can be resolved without this Court making “an initial policy determination of a kind clearly for nonjudicial discretion,”
Baker,
369 U.S. at 217 , 82 S.Ct. 691 , because in adjudicating this suit, the Court will be honoring precisely the “policy determination” that “nonjudicial” (i.e., political) officials made when they enacted 28 U.S.C. § 1605 (a)(7). In
*78
deed, the enactment of § 1605(a)(7), no less that the Presidential Determination on which Iraq places so much weight, is a “political decision already made” to which the Court must “adhere” in this case.
See Baker,
369 U.S. at 217 , 82 S.Ct. 691 ;
see also Owens,
374 F.Supp.2d at 28 (acknowledging that the issue of “whether suit should be allowed against [a foreign state] is certainly one that touches on the relationship between the United States and other nations, a concern that is primarily committed to the discretion of Congress and the President,” but declining to apply the political-question doctrine because the political branches had spoken through § 1605(a)(7) and by designating the defendant nation a state sponsor of terrorism). The President’s actions with respect to Iraq, and in particular Determination 2003-23, are of course other “political decisions” implicated by this and all other lawsuits against Iraq under § 1605(a)(7). But the Court simply cannot accord the same weight to an Executive action that the D.C. Circuit has declared without legal effect as it gives to an unambiguous statute reflecting the political branches’ intent that lawsuits of this ilk be resolved in the federal courts. Hence, the third and fifth
Baker
factors both militate in favor of adjudicating plaintiffs’ suit.
Analysis of the fourth
Baker
factor— “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due the coordinate branches,”
see
369 U.S. at 217 , 82 S.Ct. 691 — requires a more extended discussion. Central to this analysis are the two substantive Statements of Interest that the United States has filed in this case.
See Whiteman,
431 F.3d at 72 n. 17 (“In applying th[e] fourth
Baker
test, courts have been particularly attentive to the views of the United States Government about the consequences of proceeding with litigation.”);
Alperin,
410 F.3d at 556 (noting that the views of the State Department, had it “expressed a view, ... would certainly weigh in evaluating th[e] fourth
Baker
formulation”). Pointing to recent cases in which the Supreme Court and the courts of appeals have adopted a policy of case-specific deference to the views of the Executive Branch, Iraq maintains that such deference is warranted here and that the Court should honor the United States’ view that dismissal of plaintiffs’ suit is appropriate.
See
Def.’s Opp’n and Reply at 6-9 n. 5, 12 (citing, among others,
Sosa v. Alvarez-Machain,
542 U.S. 692 , 733 n. 21, 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004), and
Republic of Austria v. Altmann,
541 U.S. 677, 702 , 124 S.Ct. 2240 , 159 L.Ed.2d 1 (2004)). The Supreme Court in
Alt-mann,
a FSIA case, acknowledged that the State Department could “fil[e] statements of interest suggesting that courts decline to exercise jurisdiction in particular cases implicating foreign sovereign immunity,” and hinted that such statements “might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.” 541 U.S. at 701-702, 124 S.Ct. 2240 . In
Sosa ,
the Court cited
Altmann
with approval in suggesting that courts employ “a policy of case-specific deference to the political branches” where adjudication in United States courts threatens to undermine American foreign policy. 542 U.S. at 733 n. 21, 124 S.Ct. 2739 . But because such “case-specific deference” was unnecessary to resolve the issues in both
Altmann
and
Sosa ,
the Supreme Court did not flesh out the level of deference owed or indicate just what submissions of the Executive Branch were entitled to heightened deference.
This Court does not have such a luxury in the present case, and will have to decide whether the Statements of Interest filed by the Department of Justice are entitled to the substantial weight that Iraq places
*79
on them. Having carefully reviewed both Statements and the relevant post-Aii-
mann/Sosa
precedents, the Court concludes that the Statements cannot be read to support a finding of nonjusticiability. Two primary considerations inform the Court’s conclusion: (1) the precise content of the Statements of Interest, including the purpose for which and context in which they were filed; and (2) the Department of Justice’s declination, despite the opportunity to do so, to take a position on the questions of justiciability that Iraq has raised in seeking dismissal. The United States’ Statements of Interests cover a limited subject matter and were filed for a limited purpose. Furthermore, the deference due a statement filed by the Executive Branch
does
hinge in large part on the thoroughness of the statement and of the representations made therein, including whether the Executive supports dismissal of the suit and on what grounds.
See, e.g., Presbyterian Church of Sudan v. Talisman Energy, Inc.,
Civ. A. No. 01-9882, 2005 WL 2082846 , at *3 (S.D.N.Y. Aug. 30, 2005) (“Courts have assigned varying weight to statements of interest by the United States Government according to the circumstances.”). The Court is thus entitled to — and will — place significant weight on the Executive Branch’s refusal to support dismissal of this suit specifically on political-question grounds.
Turning first to the content and purpose of the Statements of Interest, counsel for the United States reiterated at the motions hearing what was already clear from the government’s filings: that the United States entered this case primarily “to defend [a] specific act of the President” and “to bring [a] threshold jurisdictional issue to the Court’s attention” at a time when Iraq had not yet appeared in the case. Prelim. Tr. at 59-60; see Third Statement of Interest at 1 (explaining that the United States filed a statement pursuant to 28 U.S.C. § 517 because of its interests in restoring Iraq’s sovereign immunity and in enforcing federal laws). It is not surprising, then, that its Statements of Interest advocate dismissal
exclusively
on the theory rejected by the D.C. Circuit in
Aeree :
that Presidential Determination 2003-23 and the EWSAA divested this Court of subject-matter jurisdiction. The United States’ first Statement of Interest, filed on March 15, 2004, elaborated on essentially three points: (1) that the Presidential Determination, made pursuant to section 1503 of the EWSAA, had rendered the state-sponsored terrorism exception inapplicable to Iraq effective immediately; (2) that the district court’s assertion of jurisdiction in
Aeree v. Republic of Iraq,
276 F.Supp.2d 95 (D.D.C.2003), had been in error; and (3) that, even if the Court rejected the United States’ jurisdictional argument, plaintiffs had failed to state a claim under
Cicippio-Puleo .
Nowhere in its Statement did the United States contend that plaintiffs’ claims were nonjustieiable or that their suit would have presented an irreconcilable conflict with American foreign policy even in the absence of the Presidential Determination and the EW-SAA. In short, the United States’ Statement of Interest did not say, “here are the foreign-policy reasons why the Executive Branch is worried about continued adjudication of this specific case”; it said something closer to, “here are the foreign-policy reasons why the President and Congress took a series of actions in 2003.”
Recognizing as much, Iraq plucks various sentences out of context in an effort to emphasize the extent to which lawsuits against it could, as a general matter, “significantly interfere with the establishment of a new, peaceful government.” Def.’s Opp’n and Reply at 7 (quoting First Statement of Interest at 13). But these and other statements cited by Iraq cannot be
*80
unmoored from that specific context, one in which the United States was simply attempting to explain why giving “immediate effect [to] Section 1503 and the Presidential Determination is entirely consistent with the[] underlying foreign policy objectives” of the political branches. First Statement of Interest at 10. The United States’ description of those “foreign policy objectives” cannot be read as an
implicit
request by either the Executive Branch generally or the State Department specifically that the Court decline to exercise jurisdiction
in this case.
But without precisely such an indication of how this particular case — as opposed to a class of suits— could substantially interfere with the United States’ foreign-policy interests, the Court cannot invoke the “case-specific” deference suggested by
Sosa
and
Altmann. See Altmann,
541 U.S. at 702, 124 S.Ct. 2240 (“[S]hould the State Department choose to express its opinion on the implications of exercising jurisdiction over
particular
petitioners in connection with
their
alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.”) (emphasis in original); see
also Presbyterian Church of Sudan,
2005 WL 2082846 , at *6 (reading
Altmann
and
Sosa
as establishing that “deference is appropriate to the extent that a sovereign’s opinion has been stated with particularity”).
If there were any doubt about the contours of the Executive Branch’s position, that doubt would be dispelled by the United States’ Third Statement of Interest, in which it
explicitly
declined to take a position on the political-question, foreign-affairs-preemption, and act-of-state arguments that Iraq has raised in its most recent filings. This recent Statement of Interest, weighing in at less than three pages, reasserts the government’s position that, notwithstanding the D.C. Circuit’s decision in
Aeree,
“the combined legislative and executive action that rendered Section 1605(a)(7) of the FSIA inapplicable to Iraq” divests this Court of jurisdiction. Third Statement of Interest at 2. In the remaining sentences, the United States “also reiterates the crucial foreign policy interests underlying those political actions,” identifying “the promotion of a peaceful, stable, and democratic Iraq [as] a fundamental goal of U.S. foreign policy,” and pointing to the President’s view that judicial process against Iraq threatens that policy. Id. at 3. As Iraq itself recognizes, however, the United States expressly declined to take a position on “any other issues raised by the parties,”
id.
— a category that includes Iraq’s arguments that this suit should be dismissed as nonjusticiable, preempted, or barred by the act-of-state doctrine. That silence, particularly in light of foreign-policy interests that are supposedly “crucial,” is significant.
Counsel for Iraq has gamely attempted to downplay the significance of the United States’ refusal to advocate dismissal on foreign-policy grounds.
See
Prelim. Tr. at 31, 64-65. Iraq is certainly correct that courts normally defer to the Executive Branch’s exposition of its foreign-policy interests, not to its legal conclusions.
See, e.g., Altmann,
541 U.S. at 701-02 , 124 S.Ct. 2240 ;
Sarei,
456 F.3d at 1080 n. 8. On the other hand, Iraq misconceives the distinction drawn in
Altmann
and other cases between the foreign-policy views of the Executive Branch and the Executive’s “legal conclusions.”
Altmann
itself is instructive in this regard. There, the Supreme Court rejected the “recommendation” of the Executive Branch that the FSIA not be applied to conduct that predated the statute’s enactment. 541 U.S. at 701, 124 S.Ct. 2240 . In so ruling, the Court explained that the view of the United States on “a pure question of statutory
*81
interpretation” was “of considerable interest,” but did not deserve the same kind of “special deference” to which the view of the State Department “on the implications of exercising jurisdiction over
particular
petitioners in connection with
their
alleged conduct” might be entitled.
Id.
at 701-02 , 124 S.Ct. 2240 (citing
Immigration
&
Naturalization Serv. v. Cardoza-Fonseca,
480 U.S. 421, 446, 448 , 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987)). The
Altmann
Court thus reaffirmed that no “special deference” is owed the Executive’s views on a pure question of law, but neither said nor hinted that it is improper for courts to focus on whether the foreign-policy concerns that prompt the Executive Branch to express its views are strong enough to lead the Executive also to seek dismissal of the suit.
Various pre- and
post-Altmann
decisions confirm that courts are much more likely to dismiss a case based on the Executive Branch’s assertion of important foreign-policy interests when the Executive actually advocates for dismissal on that basis. Recent decisions by the Third and Ninth Circuits have found the refusal of the Executive Branch to seek dismissal, when it had the opportunity to do so, significant if not dispositive.
See Sarei,
456 F.3d at 1080-82 ;
Gross,
456 F.3d at 385.
Gross
was one in a line of cases in which victims (or heirs of victims) of atrocities during the Nazi era sued German companies for labor abuses, appropriation of private property, and refusal to pay insurance policies.
Id.
at 366. The specific issue before the Third Circuit was whether the district court had erred in dismissing as nonjusticiable a suit seeking interest payments on money paid by German companies to a foundation that had been established to compensate the victims. In dismissing the suit, the district court relied on two letters from the Executive Branch: an undated letter from Deputy Secretary of State Richard Armitage to a German official on the foundation’s board of trustees, and a letter submitted to the court by a Department of Justice trial attorney.
Id.
at 372-74. While the Armi-tage letter expressed the view that the dispute was better resolved diplomatically than judicially, it did not take a position on the merits of the dispute.
Id.
at 373. The Justice Department’s letter, the only one filed with the federal courts, was even more bare-bones, remaining silent on the issue of justiciability and expressly disclaiming a position on the merits.
Id.
at 374.
The Third Circuit concluded that the suit did not present a nonjusticiable political question. Central to that conclusion was the court’s ruling that neither letter was entitled to case-specific deference. 456 F.3d at 384. The court of appeals emphasized that the Armitage letter had not been directed to a United States court, that it made “no promises to seek dismissal or that the United States Executive would intervene,” and that it took no position on the merits of the plaintiffs’ lawsuit.
Id.
The second letter fared no better. It was, the court noted, “from a Department of Justice trial attorney and not from a State Department official.”
Id.
Furthermore, that attorney “was silent on the position of the United States as to justicia-bility and the proper forum in which to resolve the dispute.”
Id.
The two letters revealed only that “the United States ha[d] declined to express to the District Court or [the court of appeals] a position on the justiciability or merits of the ‘interest’ dispute, except its lack of a position.”
Id.
at 385. And because the United States had failed to do so, the court concluded that the “Executive [Branch] has not, through an expression of its interest in the case, committed the ‘interest’ dispute to a political branch.”
Id.
*82
The Ninth Circuit’s decision in
Sarei
issued just days after
Gross
and later cited with approval by the D.C. Circuit,
see Doe v. Exxon Mobil Corp.,
473 F.3d 345, 354-55 (D.C.Cir.2007), is to the same effect. In
Sarei ,
the court of appeals reversed a district court decision that had dismissed on political-question grounds a suit filed by former residents of Papa New Guinea under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350 . The State Department had filed a Statement of Interest that, while declining to take positions on the political-question and act-of-state issues raised by the defendant, expressed the United States’ view that adjudication threatened “very grave” consequences for American foreign policy. 456 F.3d at 1075-76. Although according “serious weight” to the “Statement of Interest,” the Ninth Circuit held that the filing did not establish any of the final three
Baker
factors.
Id.
at 1082. Of particular significance to the court was the fact that “[t]he State Department explicitly did not request that [it] dismiss this suit on political question grounds.”
Id.; cf. Presbyterian Church of Sudan,
2005 WL 2082846 , at *6 (refusing to dismiss an ATS suit under the political-question doctrine, and finding significant the brevity of the Executive Branch’s filing because the State Department “has not hesitated to warn courts where it believes continuation of a lawsuit will affect a foreign government’s policy to the extent that it would disturb U.S. relations with that foreign government”). “[W]e are confident,” the
Sarei
court explained, “that proceeding does not express any disrespect for the executive, even if it would prefer that the suit disappear.” 456 F.3d at 1082.
Although it has not definitively decided the issue, the D.C. Circuit has also recently indicated that it too believes that the level of deference due a Statement of Interest turns on whether the Executive
Branch merely voices foreign-policy concerns or instead directly requests that a suit be dismissed as nonjusticiable.
See Doe,
473 F.3d at 354 . One of the questions in Doe was whether Exxon Mobil could obtain mandamus relief on the ground that the district court had “clearly and indisputably exceeded its jurisdiction by refusing to dismiss th[e] case under the political question doctrine.”
Id.
at 349, 353 (citations, quotation marks, and alterations omitted). Exxon argued that the district court had erred by declining to defer to a letter in which the State Department’s Legal Advisor expressed concerns about the suit’s impact on relations between the United States and Indonesia. The D.C. Circuit rejected “Exxon’s contention that there is a conflict between the views of the State Department and those of the district court.”
Id.
at 354 . Pointing to language in the letter that revealed the tentative nature of the State Department’s views, the court read the letter “not as an unqualified opinion that this suit must be dismissed, but rather as a word of caution to the district court alerting it to the State Department’s concerns.”
Id.
Because “the State Department did not necessarily expect the district court to immediately dismiss the case in its entirety,” the court reasoned, there was no need to “decide what level of deference would be owed to a letter from the State Department that
unambiguously
requests that the district court dismiss a case as a non-justiciable political question.”
Id.
The D.C. Circuit thus signaled its view that there is in fact a difference between the “level of deference” owed an Executive Branch filing “that
un-ambigously
requests” dismissal under the political-question doctrine and a filing that merely alerts a court to the possibility that a pending suit, depending on its scope and outcome, could affect American foreign-policy interests somewhere down the road.
*83
This reading of
Doe, Gross,
and
Sarei
is consistent with the reasoning of and results in the cases cited by Iraq. Indeed, the cases cited by Iraq illustrate the corollary to the principle explained in the preceding paragraphs — namely, that courts are especially likely to defer to an Executive Branch explanation of foreign-policy interests when that explanation comes in the form of a filing seeking dismissal on foreign-policy grounds. Thus, the Second Circuit in
Whiteman v. Dorotheum GmbH & Co. KG,
431 F.3d 57, 63 (2d Cir.2005), dismissed under the political-question doctrine a suit that the United States described as the final case preventing an Executive Agreement with Austria from taking effect. There, however, the supplemental Statement of Interest jointly filed by the Departments of State and Justice explicitly averred that it was “in the foreign policy interests of the United States for this action to be dismissed on
any valid legal ground.” Id.
(quoting U.S. Supplemental Letter at 6) (emphasis added). The letter went on to note a recent decision in which the Eleventh Circuit had dismissed a similar suit under the doctrine of international comity, and implored the Second Circuit to give deference to the articulated foreign-policy interests in considering dismissal under any of “several abstention doctrines” or any other “legal arguments advanced by the defendants in seeking dismissal.” U.S. Supplemental Letter at 6, 8. Another Second Circuit decision cited by Iraq,
767 Third Ave. Assoc. v. Consulate General of Socialist Federal Republic of Yugoslavia,
218 F.3d 152 , 160 (2d Cir.2000), fits the same pattern. In affh'ming the district court’s dismissal of a suit involving the by-then-dissolved Republic of Yugoslavia, the Second Circuit relied in part on an amicus brief in which the United States had specifically invoked the political-question doctrine in seeking outright dismissal of the case.
See id.; see also
Brief for Amicus Curiae United States of America Supporting Appellees,
767 Third Ave. Assoc, v. Consulate General of Socialist Federal Republic of Yugoslavia,
218 F.3d 152 (2d Cir.2000) (99-9011).
The most relevant example of this trend is the primary D.C. Circuit authority upon which Iraq relies — the decision in
Hwang Geum Joo,
413 F.3d at 48-52 . There, the court of appeals dismissed on political-question grounds a suit by women who claimed that they had been raped and tortured by Japanese soldiers during World War II. A central issue was whether treaties that Japan had signed with the women’s countries of origin had preserved or extinguished the claims of those countries’ citizens against Japan.
Id.
at 48 . Relying on “a thorough and persuasive Statement of Interest” submitted by the United States,
id.,
the court held that resolution of this issue was a political question because “adjudication by a domestic court not only ‘would undo’ a settled foreign policy of state-to-state negotiation with Japan, but could also disrupt Japan’s ‘delicate’ relations with China and Korea.”
Id.
at 52 (quoting United States’ Statement of Interest at 34-35).
Because the case was remanded by the Supreme Court for further consideration in light of
Altmann ,
the United States actually submitted two amicus briefs during the course of the Hwang
Geum Joo
appeal. Both briefs argued that the plaintiffs’ claims were nonjusticiable, the earlier one doing so as an alternative argument and the latter advancing that argument expressly and from the outset.
See
Brief for Amicus Curiae the United States of America at 28-29,
Hwang Geum Joo v. Japan,
332 F.3d 679 (D.C.Cir.2003) (No. 01-7169); Supplemental Brief on Remand for Amicus Curiae the United States of America at 9, 11-12,
Hwang Geum Joo v. Japan,
413 F.3d 45 (D.C.Cir.2005) (No. 01-
*84
7169). The Supplemental Brief emphasized what the United States believed to be “the broader question before the [D.C. Circuit]: whether a foreign policy determination that wartime claims against Japan should not be entertained in U.S. courts renders such claims nonjusticiable.”
Id.
at 11. Under “similar circumstances,” the United States argued successfully, “courts have consistently held that dismissal is appropriate on political question, international comity, or other doctrinal grounds.”
Id.
at 12;
see also id.
at 9 (citing the Supreme Court’s decision in
Baker v. Carr
for the proposition that “courts should not second-guess” the Executive’s foreign-policy determinations). In
Hwang Geum Joo ,
as in the other key cases cited by Iraq, the court deferred to the foreign-policy judgment of the Executive Branch in a setting where the Executive had explicitly sought dismissal on justiciability grounds.
A rather simple proposition emerges from this lengthy background: under the fourth
Baker
factor, the level of deference owed a statement of interest filed by the Executive Branch depends on, among other factors, what the statement actually says; who (i.e., which Executive agency) submitted it; and, perhaps most critically, whether the United States supports dismissal on the basis of the political-question doctrine or other related grounds. As applied here, these criteria lead inexorably to the conclusion that this case is justiciable. With respect to content and context, the Statements of Interest never stray from the Justice Department’s limited purposes of defending an action by the President and alerting the Court to what was at that time an open and potentially dispositive jurisdictional question. The passages on which Iraq seizes explain the foreign-policy motives of the political branches — especially the President — but do not purport to set forth the views of the State Department as to whether and why adjudicating this
particular
case would threaten U.S. foreign policy.
See Altmann,
541 U.S. at 702 , 124 S.Ct. 2240 . Indeed, the fact that the Statements of Interest were filed by the Justice Department, rather than the State Department, serves both to reinforce the limited purposes for which they were submitted and to rebut Iraq’s efforts to convert isolated sentences into authoritative declarations of the Executive’s views on the foreign-affairs implications of this case.
See Gross,
456 F.3d at 384.
Finally, as Iraq concedes, the Statements of Interest expressly decline to take a position on whether this suit presents a nonjusticiable political question. The United States has taken a position on only one of the arguments advanced by Iraq, but has declined, despite the Court’s invitation, to endorse the view that plaintiffs’ suit is nonjusticiable. Neither the United States’ refusal to take a position nor its comments in explaining a no longer viable theory of dismissal mandate the heightened “case-specific” deference that the D.C. Circuit in
Hwang Geum Joo
accorded the Executive Branch’s unequivocal and detailed request that the case be deemed nonjusticiable, 413 F.3d at 48 , or that the Second Circuit in
Whiteman
accorded the Executive’s view that the last remaining obstacle to enforcement of an Executive Agreement should be dismissed “on any valid legal ground,” 431 F.3d at 63 . This case is instead analogous in all material ways to
Gross
and
Sarei ,
where the Third and Ninth Circuits declined to dismiss the respective suits on political-question grounds despite treating the United States’ expressions of interest with respect. The same conclusion follows here, where this Court has likewise carefully reviewed and extensively considered the views set forth by the United States in both Statements of Interest and at the motions hearing. But because the United
*85
States has not indicated — and the Court finds no independent reason to conclude— that adjudicating plaintiffs’ claims would “express[] lack of the respect due the coordinate branches,” dismissal under the political-question doctrine on the basis of the fourth
Baker
factor is inappropriate.
See
369 U.S. at 217 , 82 S.Ct. 691 .
This leaves the sixth
Baker
factor and brings the Court back to where this analysis began: the D.C. Circuit’s decision in
Aeree.
The sixth
Baker
factor gauges the potential for “embarrassment from multifarious pronouncements by various departments on one question.”
See
369 U.S. at 217 , 82 S.Ct. 691 . There is little doubt that this case implicates that factor. Congress and the President spoke with one voice in 1996 when they stripped state sponsors of terrorism of immunity for certain terrorist acts. A strong argument has been made — both by the United States and by then-Circuit Judge Roberts in
Aeree
— that the political branches once again spoke with one voice in seeking to remove Iraq from that disreputable list in 2003. But the D.C. Circuit has held otherwise, and absent en banc or Supreme Court consideration, or a Congressional response to
Aeree, every
case brought against Iraq under § 1605(a)(7) will present the same cacophony of actions and arguments: an unambiguous statute that provides a judicial forum for victims of terrorism to seek redress for the wrongs they suffered, the President’s attempt to restore Iraq’s sovereign immunity pursuant to a statute that he believed equally clear, and the court of appeals’ ruling that Congress did not give the President the power to throw this suit and similar ones out of the judicial forum that had been created in 1996. In other words, to the extent that there exists a potential for “embarrassment,” that potential stems from the D.C. Circuit’s holding that the EWSAA did not give the President the authority that he thinks Congress gave him, not from this Court’s adjudication, almost three years after
Aeree
was decided, of the narrow claims advanced by plaintiffs here. Accordingly, the final
Baker
factor, although surely implicated, does not weigh in favor of dismissing plaintiffs’ suit.
3. Foreign-affairs preemption
Iraq next asks the Court to dismiss plaintiffs’ claims on the strength of “the doctrine of foreign affairs preemption,” which it says “rests on many of the same considerations underlying the political question doctrine.” Def.’s Opp’n and Reply at 15. The basis for this argument is the Supreme Court’s decision in
American Ins. Ass’n v. Garamendi,
539 U.S. 396 , 123 S.Ct. 2374 , 156 L.Ed.2d 376 (2003). That case involved California’s Holocaust Victim Insurance Relief Act (“HVIRA”), a state law that required insurers doing business in California to disclose information about holocaust-era insurance policies.
Id.
at 409 , 123 S.Ct. 2374 . HVIRA also created a private cause of action and extended the statute of limitations for individuals to assert claims “based on acts perpetrated in the Holocaust.”
Id.
The primary question before the Supreme Court was whether the state statute was preempted because it conflicted with the federal government’s elaborate efforts in the international arena to resolve disputes over the insurance claims of Holocaust survivors.
Answering that question in the affirmative, the Court relied heavily on its decision in
Zschernig v. Miller,
389 U.S. 429, 432 , 88 S.Ct. 664 , 19 L.Ed.2d 683 (1968), in which an Oregon probate statute prohibiting inheritance by a nonresident alien was invalidated as an “intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress.” Thé
Garamendi
majority
*86
acknowledged that the lead opinion in
Zschemig
could be read as standing for the proposition “that state action with more than an incidental effect on foreign affairs is preempted, even absent any affirmative federal activity in the subject area of the state law, and hence without any showing of conflict.” 539 U.S. at 418 , 123 S.Ct. 2374 . But Justice Harlan’s separate opinion in
Zschemig
had declined to go so far, instead endorsing the view that, absent federal action, “the States may legislate in areas of their traditional competence even though their statutes may have an incidental effect on foreign relations.” 389 U.S. at 459 , 88 S.Ct. 664 (Harlan, J., concurring in the result). The
Garamendi
Court deemed it unnecessary, however, to choose between the broader reading of
Zschernig
and Justice Harlan’s more narrow view. 539 U.S. at 419 -20 & n. 11, 123 S.Ct. 2374 (describing the two positions as “complementary,” and noting that where states act in their areas of traditional competence, “it might make good sense to require a conflict, of a clarity and substan-tiality that would vary with the strength or the traditional importance of the state concern asserted”). This was because the state statute was preempted even under Justice Harlan’s view, since it generated a “clear conflict” with the Executive Branch’s efforts to settle claims in the international arena, and the state’s interests “in regulating disclosure of European Holocaust-era insurance policies” were relatively weak.
See id.
at 421-25 , 123 S.Ct. 2374 . The California statute, the Supreme Court explained, used “an iron fist where the President has consistently chosen kid gloves,”
id.
at 427 , 123 S.Ct. 2374 , and thus was likely to “produce something more than incidental effect in conflict with express foreign policy of the National Government,”
id.
at 420 , 123 S.Ct. 2374 .
Iraq’s reliance on
Garamendi
is flawed for at least two reasons. First and foremost, there is a serious question as to whether
Garamendi’s
“conflict” analysis even applies to a case such as this one, where it is a
federal statute
that establishes the exclusive framework for suing a foreign sovereign and that contemplates that state law will provide the rule of decision.
See
28 U.S.C. § 1606 (“[T]he foreign state shall be liable to the same manner and to the same extent as a private individual under like circumstances.”);
Bodoff v. Islamic Republic of Iran,
424 F.Supp.2d 74, 83 (D.D.C.2006) (describing § 1606 as “a ‘pass-through’ to substantive causes of action against private individuals that may exist in federal, state or international law.” (citation omitted)). The Supreme Court has recognized in construing the FSIA that the statute permits — and indeed may require — application of state law in suits against foreign sovereigns.
See First Nat. City Bank v. Banco Para El Comercio,
462 U.S. 611 , 622 n. 11, 103 S.Ct. 2591 , 77 L.Ed.2d 46 (1983) (“[WJhere state law provides a rule of liability governing private individuals, the FSIA requires the application of that rule to foreign states in like circumstances.”); cf.
Verlinden B.V. v. Central Bank of Nigeria,
461 U.S. 480, 491 , 103 S.Ct. 1962 , 76 L.Ed.2d 81 (1983) (holding that the FSIA did not violate Article III of the Constitution “by granting federal courts subject-matter jurisdiction over certain civil actions ... against foreign sovereigns where the rule of decision may be provided by state law”). Iraq has cited no cases, and the Court is aware of none, in which a federal court has applied the foreign-affairs-preemption doctrine recognized in
Garamendi
and
Zschemig
to a suit brought pursuant to the FSIA. The sole post
-Garamendi
authority cited by Iraq involved claims against two
Amencan
corporations, such that the FSIA did not apply.
See Mujica v. Occidental Petroleum
*87
Corp.,
381 F.Supp.2d 1164, 1185-88 (C.D.Cal.2005) (dismissing under the foreign-affairs-preemption doctrine the plaintiffs’ state tort law claims). There is good reason for this absence of on-point authority: it makes little sense to describe a state law as “clearly conflicting” with the federal government’s foreign policy when a law enacted by the federal government is what allows plaintiffs to invoke, and instructs federal courts to enforce, state law causes of action.
Second, even assuming that the “conflict” framework applies, there are numerous and critical distinctions between the present case and
Garamendi
For one thing, at issue in
Garamendi
was the validity of a state legislative enactment specifically intended to reach sensitive foreign-policy matters. Here, conversely, the only state “action” implicated is the Florida and Oklahoma common law of tort; the existence of such court-created common law evinces no effort on the part of either of those state governments to weigh in on knotty issues of international consequence.
Cf. Garamendi
539 U.S. at 439 , 123 S.Ct. 2374 (Ginsburg, J., dissenting) (“The notion of ‘dormant foreign affairs preemption’ with which
Zschemig
is associated resonates most audibly when a state action reflects a state policy critical of foreign governments and involves sitting in judgment of them.” (citation, quotation marks, and alterations omitted));
Doe v. Exxon Mobil Corp.,
Civ. A. No. 01-1357, 2006 WL 516744 , at *3 (D.D.C. March 3, 2006) (finding
Garamendi
“simply not applicable” because “no state government has passed any statute in conflict with U.S. foreign policy”),
appeal dismissed,
473 F.3d 345 (D.C.Cir.2007). Iraq downplays the difference between affirmative state legislative action and the application of state common law, insisting that, “[a]s with other preemption doctrines, the doctrine of foreign affairs preemption applies equally to state statutes and state common law causes of action.” Def.’s Opp’n and Reply at 16 n. 8. Maybe so. But what this argument overlooks is that the common law of tort is plainly an area of “traditional” state competence. Under
Garamendi ,
Iraq must identify a “conflict [ ] of a clarity or sub-stantiality that [varies] with the strength or the traditional importance of the state concern asserted.” 539 U.S. at 419 n. 11, 123 S.Ct. 2374 ;
see also id.
at 427, 123 S.Ct. 2374 (“The question relevant to preemption in this case is conflict.”). And because the concerns underlying the tort of intentional infliction of emotional distress are “legitimate” and “substantial,” see
Farmer v. United Brotherhood of Carpenters & Joiners,
430 U.S. 290, 302-03 , 97 S.Ct. 1056 , 51 L.Ed.2d 338 (1977), Iraq must demonstrate a similarly “substantial” conflict between the state tort laws and U.S. foreign policy.
This Iraq cannot do. There is simply no appreciable conflict between applying state tort law via § 1606 of the FSIA and American foreign policy as articulated by the federal government. As was explained in the political-question analysis above, allowing plaintiffs’ suit to proceed cannot unduly interfere with country-to-country negotiations that are at this point more of an aspiration than a policy.
See Gross,
456 F.3d at 380, 390-91;
Alperin,
410 F.3d at 558 . Furthermore, even if the application of state law leads to a judgment against Iraq, the only effect that this
particular
case will have is on the Iraqi government’s finances. And if such an effect is enough to establish a “clear conflict” with American foreign policy, then all suits against Iraq under the FSIA in which state law provides the rule of decision' — or at a minimum, all suits brought under § 1605(a)(7) — would also be preempted. Nothing in the
Garamendi
majority’s narrow opinion indicated an intent to mandate
*88
such a strange result or to upset settled principles of law in the FSIA context.
See First Nat. City Bank,
462 U.S. at 622 n. 11, 103 S.Ct. 2591 (acknowledging that state law can and at times must provide the rule of decision via § 1606 of the FSIA).
Finally, the present case is quite simply miles away from
Garamendi
on the facts. There have not been, as in
Garamendi
extensive efforts to resolve claims by former hostages in the international arena.
Cf. Roeder v. Islamic Republic of Iran,
333 F.3d 228, 236-38 (D.C.Cir.2003) (holding that plaintiffs’ FSIA suit was barred by an Executive Agreement that precluded claims by former hostages against Iran);
Ibrahim v. Titan Corp.,
391 F.Supp.2d 10, 16 (D.D.C.2005) (declining to dismiss a suit on political-question grounds where, “unlike in many other reparations cases entangled with political questions, there is no state-negotiated reparations agreement competing for legitimacy with this court’s rulings”). The
possibility
of such extensive efforts at some indeterminate future date is no substitute for the
actual
diplomatic solution toward which the Executive had worked in
Garamendi .
Moreover, to the extent that the application of state common law could be viewed as conflicting with the United States’ general interest in stabilizing Iraq, Florida and Oklahoma’s interest in seeing their generally applicable tort laws applied to protect their residents is substantial enough to offset such a conflict. The Supreme Court has recognized the strength and legitimacy of the state interests involved in holding that a state-law cause of action for intentional infliction of emotional distress was not preempted by the federal labor laws.
See Farmer,
430 U.S. at 302-03 , 97 S.Ct. 1056 . In so ruling, the Court repeatedly pointed to the state’s “legitimate” and “substantial interest” in protecting its citizens “from emotional distress caused by outrageous conduct,” an interest tied to the states’ more general interest “in protecting the health and well-being of its citizens.”
See id.
at 302, 304 , 97 S.Ct. 1056 . The tenuous nature of the conflict (if there even is one), along with the strength of the state interests implicated, distinguishes this case from
Garamen-di
and suggests that preemption under the foreign-affairs doctrine is inappropriate.
A
Act-of-state doctrine
Iraq’s final foreign-affairs salvo is the act-of-state doctrine. That doctrine bars courts from adjudicating a case “when ‘the relief sought or the defense interposed would [require] a court in the United States to declare invalid the official act of a foreign sovereign performed within’ its boundaries.”
World Wide Minerals, Ltd. v. Republic of Kazakhstan,
296 F.3d 1154, 1164 (D.C.Cir.2002) (quoting
W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp.,
493 U.S. 400, 405 , 110 S.Ct. 701 , 107 L.Ed.2d 816 (1990)). “[M]ost recently described ... as a consequence of domestic separation of powers, reflecting the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder the conduct of foreign affairs,”
id.
at 1165 (citations and quotation marks omitted), the act-of-state doctrine “provides foreign states with a substantive defense on the merits.”
Altmann,
541 U.S. at 700 , 124 S.Ct. 2240 . “The policies underlying the doctrine include international comity, respect for the sovereignty of foreign nations on their own territory, and the avoidance of embarrassment to the Executive Branch in its conduct of foreign relations.”
World Wide Minerals,
296 F.3d at 1165 (citations and quotation marks omitted). When the factual predicate for the doctrine’s application exists, courts decide whether to invoke it by as
*89
sessing three factors: (1) the degree of consensus concerning a particular area of international law, (2) the implications of the issue for the United States’ foreign relations, and (3) whether the government that perpetrated the act or acts at issue is still in existence.
See Owens v. Republic of Sudan,
374 F.Supp.2d 1, 26 (D.D.C.2005).
There is no question here that “the factual predicate for application of the act of state doctrine” exists,
W.S. Kirkpatrick,
493 U.S. at 405 , 110 S.Ct. 701 , since plaintiffs’ claims center on the propriety of the Iraqi government’s detention and imprisonment of Beaty and Barloon within Iraqi territory.
See Underhill v. Hernandez,
168 U.S. 250, 254 , 18 S.Ct. 83 , 42 L.Ed. 456 (1897) (dismissing under the act-of-state doctrine suit in which the plaintiff alleged that he had been unlawfully detained and assaulted by revolutionary forces that the United States later recognized as Venezuela’s government). Hence, the principal issue is “whether the purpose of the act of state doctrine would be furthered by its application in this case.” W.S.
Kirkpatrick,
493 U.S. at 405 , 110 S.Ct. 701 ;
see Sarei,
456 F.3d at 1084 . In addressing that issue, Iraq properly recognizes that both this Court in
Owens
and Judge Friedman in
DalibeHi I
expressed great skepticism about applying the act-of-state doctrine to suits brought under the FSIA’s state-sponsored terrorism exception.
See Owens,
374 F.Supp.2d at 26-27 ;
Daliberti v. Republic of Iraq,
97 F.Supp.2d 38, 54-55 (D.D.C.2000). This hesitance is rooted in the fact that the political branches enacted a statute whose text and structure expressly contemplate holding a foreign state liable for terrorist acts committed years earlier, and that this statute does not come into play unless the Executive Branch had identified a nation as a sponsor of terrorism at the time of the acts at issue.
See Owens,
374 F.Supp.2d at 27 ;
Daliberti I,
97 F.Supp.2d at 55 . Under such circumstances, it is difficult if not impossible to say that the judiciary would be unduly interfering with the political branches’ conduct of foreign policy, which is the principal concern underlying the act-of-state doctrine.
See Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398, 423 , 84 S.Ct. 923 , 11 L.Ed.2d 804 (1964);
W.S. Kirkpatrick,
493 U.S. at 404 , 110 S.Ct. 701 .
These justifications for refusing to invoke the act-of-state doctrine in
DalibeHi I
and
Owens
apply fully here. Indeed, because the actions underlying plaintiffs’ claims are the same ones already litigated in
DalibeHi I,
Iraq must demonstrate that something is different here. The critical difference, it says, is that the regime that perpetrated the acts underlying plaintiffs’ claims is no longer in power, and has been replaced with a new government whose stability and success are a major foreign-policy objective of the United States.
See
Def.’s Opp’n and Reply at 23-24 (quoting
Sabbatino,
376 U.S. at 428 , 84 S.Ct. 923 (“The balance of relevant considerations may also be shifted if the government which perpetrated the challenged act of state is no longer in existence ..., for the' political interest of this country may, as a result, be measurably altered.”)); see
also Owens,
374 F.Supp.2d at 26 (listing “whether the government that perpetrated the challenged act is still in existence” as one consideration for applying the act-of-state doctrine). Although the existence of a new government is certainly significant, the Court is not convinced that this single distinction either (1) offsets the
DalibeHi I
court’s reasoning that dismissal “would constitute more of a judicial interference in the announced foreign policy of the political branches of government than to allow the suit to proceed under the explicit authorization of Congress,” 97 F.Supp.2d at 55 ; or (2) suffices to justify dismissing a
*90
lawsuit that was filed
before
the regime change and that is based on the same underlying conduct as was
Daliberti.
This is especially so given the lack of case-specific action on the part of the very-political branches whose “announced foreign policy” the courts attempt to respect.
See id.
The Executive Branch, despite the President’s publicly expressed desire to shield Iraq from liability, has declined to raise the act-of-state doctrine in its Statements of Interest and has explicitly declined to support Iraq’s invocation of the doctrine. The out-of-context snippets from those Statements reproduced by Iraq hardly constitute the “considered judgment” or “opinion” of the State Department “on the implications of exercising jurisdiction over
particular
[foreign states] in connection with
their
alleged conduct.”
See Altmann,
541 U.S. at 702 , 124 S.Ct. 2240 ;
see also id.
at 714, 124 S.Ct. 2240 (Breyer, J., concurring) (emphasizing that the United States could file statements of interest that refer “not only to sovereign immunity, but also to other grounds for dismissal, such as ... the nonjusticiable nature ... of the matters at issue”) (citations omitted). If the regime change were an event so cataclysmic as to mandate a result here contrary to the one in
Daliber-ti,
one would expect the Executive Branch, especially when given the chance, to say so explicitly.
To be sure, Iraq is correct that dismissal on act-of-state grounds may be appropriate regardless of the position taken by the Executive Branch. The Supreme Court has so suggested,
see Sabbatino,
376 U.S. at 436 , 84 S.Ct. 923 , and other courts have gone so far as to raise the act-of-state doctrine on their own either in a default proceeding or when resolution of a case on the merits might embarrass the United States government.
See Liu v. Republic of China,
892 F.2d 1419, 1432 (9th Cir.1989);
Doe v. Qi
349 F.Supp.2d 1258, 1290 (N.D.Cal.2004). But those situations are easily distinguishable from this case.
Sab-batino
itself is a poor analogue because, by the time the case reached the Supreme Court, the Executive Branch had cleared up the ambiguity in its earlier statements by expressly seeking dismissal on act-of-state grounds.
See
376 U.S. at 420 , 84 S.Ct. 923 ; Brief for United States as Amicus Curiae,
Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398 , 84 S.Ct. 923 , 11 L.Ed.2d 804 (1963) (No. 16), reprinted in 2 I.L.M. 1009 (1963). Furthermore, as was explained at length above, adjudicating the particular claims in this case is unlikely to cause excessive — if any — embarrassment to the United States government. If such embarrassment were indeed a risk, the Court would certainly have expected the Executive Branch to so indicate when given the chance to do so. Finally, the additional caution that may be called for in a default proceeding is not warranted here, where Iraq is represented by able counsel. The Court therefore declines, as it did in
Owens ,
to dismiss on act-of-state grounds “an action that entails no greater consideration of the acts of a foreign state than any other claim under section 1605(a)(7).” 374 F.Supp.2d at 28 .
B. Failure to State a Claim
Having concluded that plaintiffs’ suit need not be dismissed on jurisdictional or prudential grounds, the Court will now take up Iraq’s argument that plaintiffs have failed to state a claim upon which relief can be granted. Iraq contends that Counts II and III of plaintiffs’ Third Amended Complaint must be dismissed because federal common law does not furnish a cause of action in cases under the state-sponsored terrorism exception, a conclusion that this Court already reached in
Dammarell v. Islamic Republic of Iran,
Civ. A. No. 01-2224, 2005 WL 756090 , at
*91
*23 (D.D.C. March 29, 2005)
(“Dammarell II”)
(“[FJederal common law should not serve as a rule of decision in the run of section 1605(a)(7) cases.”). At the same time, Iraq asks the Court to reconsider its holding in
Dammarell II
that state common law can supply a cause of action in suits brought pursuant to § 1605(a)(7). Because both parties focus on this Court’s decision in
Dammarell II,
a brief review of that decision, and the reasoning underlying the Court’s conclusions, is warranted.
1. The continuing validity of Damma-rell II
This Court in
Dammarell II
endeavored to answer one of the principal questions left open by the D.C. Circuit’s decisions in
Cicippio-Puleo
and
Aeree:
what “particular causes of action ... may be brought against a foreign state in a case proceeding under section 1605(a)(7).” 2005 WL 756090 , at * 11. After a thorough “examination of the plain text, the structure, and the legislative history of sections 1605(a)(7) and 1606, and a comparison to the analogous statutory scheme of the [Federal Tort Claims Act],” the Court concluded that “the causes of action that may be brought against the foreign state ... include any claims that can be brought against a private individual in like circumstances” — to wit, claims arising under “state common and statutory law, federal statutory law, and even the law of a foreign state.”
Id.
at *14 . Conspicuously absent from the sources of law held to supply cognizable causes of actions was federal common law. The starting point for the Court’s conclusion in that regard was the D.C. Circuit’s then-recent decision in
Bettis v. Islamic Republic of Iran,
315 F.3d 325 (D.C.Cir.2003). The court of appeals in
Bettis ,
this Court explained, had “cautioned against the creation of a federal common law remedy” in the context of the state-sponsored terrorism exception. 2005 WL 756090 , at *23. Indeed, the
Bettis
court interpreted § 1606 as “in effect instructing] federal judges to find the relevant law, not to make it.” 315 F.3d at 333 . This Court then reviewed other potential justifications for fashioning federal common law — predictability and uniformity in an area of law, the existence of interests that are uniquely federal in nature, possible conflicts between state law and federal interests, and the Supreme Court’s recognition of an extremely narrow class of federal-common-law claims in
Sosa v. Alvarez-Machain,
542 U.S. 692 , 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004) — and determined that none of those justifications overcame the textual and structural mandate of the statute or the general rule against creating federal common law.
See
2005 WL 756090 , at *28.
As the parties recognize,
Dammarell II
both buoys and undermines critical aspects of their respective positions. Iraq points out that the Court’s ruling with respect to federal common law spells trouble for two of the three counts in plaintiffs’ complaint. On the other hand, the Court’s conclusion that state common law can provide a cause of action in cases brought pursuant to § 1605(a)(7) disposes of a principal ground on which Iraq seeks dismissal of Count I and shifts the focus to whether plaintiffs have stated a valid claim for intentional infliction of emotional distress under Florida and Oklahoma law. Hence, the question is whether either the arguments advanced by Iraq or jurisprudential developments in the last two years call into doubt the soundness of this Court’s reasoning and conclusions in
Dam-marell II.
The Court answers that question in the negative. Two primary considerations guide this answer. For one thing, Iraq’s arguments substantially mirror ones that the Court has already considered and re
*92
jected. In other words, Iraq’s plea to reevaluate
Dammarell II
is based not on new information, extant jurisprudence or policy arguments that the Court overlooked, or even intervening case law, but instead on a simple disagreement with the conclusions that this Court reached. Such disagreement, without more, does not support revisiting a well reasoned decision that has been widely followed. Indeed, it is precisely the wide acceptance by other judges in this district that provides a second reason for reaffirming the validity of
Dammarell II.
In a series of cases brought under § 1605(a)(7), other members of this district court have adopted this Court’s reasoning, often explicitly, in concluding both that state law can provide a cause of action and that federal common law cannot.
See, e.g., Blais v. Islamic Republic of Iran,
459 F.Supp.2d 40, 54 (D.D.C.2006) (RCL);
Vine v. Republic of Iraq,
459 F.Supp.2d 10, 25-26 (D.D.C.2006) (HHK);
Reed v. Islamic Republic of Iran,
439 F.Supp.2d 53, 60 (D.D.C.2006) (RMU);
Holland v. Islamic Republic of Iran,
Civ. A. No. 01-1924, 2005 U.S. Dist. LEXIS 40254 , at *33-*56 (D.D.C. Oct. 31, 2005) (CKK). This Court’s decision in
Damma-rell II
thus represents the prevailing view of judges in this district on at least two critical questions left unanswered by the D.C. Circuit’s opinions in
Cicippio-Puleo
and
Aeree.
Until the D.C. Circuit or the Supreme Court rules otherwise, this Court will adhere to the conclusions reached and the reasoning set forth in
Dammarell II.
Accordingly, Iraq’s request to revisit that decision is rejected.
2.
Dammarell II requires dismissal of Counts II and III
As was intimated above, Counts II and III of plaintiffs’ Third Amended Complaint fail under
Dammarell II.
Count II purports to state a claim for “violations of customary international law incorporated into federal common law,” while Count III asserts a federal-common-law claim for loss of solatium.
See
Third Am. Comp, at ¶¶ 32-40. Because federal common law cannot “serve as a rule of decision in ... section 1605(a)(7) cases,” both of these counts fail to state a claim upon which relief can be granted and must therefore be dismissed.
See Dammarell II,
2005 WL 756090 , at *23;
see also Vine,
459 F.Supp.2d at 27 ;
Pugh v. Socialist People’s Libyan Arab Jamahiriya,
Civ. A. No. 02-02026, 2006 WL 2384915 , at *12-*14 (D.D.C. May 11, 2006);
Holland,
2005 U.S. Dist. LEXIS 40254 , at *48-*56. Count III also fails to state a claim on the alternative ground that “[sjolatium ... is not an independent cause of action, but rather is a form of damages.”
See Reed,
439 F.Supp.2d at 67 -68 (citing
Salazar v. Islamic Republic of Iran,
370 F.Supp.2d 105, 115 (D.D.C.2005) (interpreting Illinois law)). As such, “[a] defendant cannot be liable for solatium but can be liable for solatium damages through other causes of action.”
Id.
at 68 (citing
Salazar,
370 F.Supp.2d at 115 ).
In the face of these authorities, plaintiffs cling to two other cases from this district:
Anderson v. Islamic Republic of Iran,
90 F.Supp.2d 107, 113 (D.D.C.2000), and
Dodge v. Islamic Republic of Iran,
Civ. A. No. 03-0252, 2004 U.S. Dist. LEXIS 29045 , at * 11-*14 & n. 8 (D.D.C. Aug. 25, 2004). Neither of these decisions suffices to salvage Counts II and III.
Anderson
was decided long before the D.C. Circuit dramatically altered the jurisprudence in this area of the law in
Cicippio-Puleo
and
Aeree,
and consequently includes almost no discussion of the complex issues raised by those cases. To the extent that the
Anderson
court’s reliance
on
federal common law is inconsistent with
Dammarell II ,
this Court declines to follow
Anderson.
Furthermore, although it was decided af
*93
ter
Cicippio-Puleo ,
the
Dodge
case merely asserts without explanation that plaintiffs who bring suit under § 1605(a)(7) “may sue [a foreign] state under any cause of action arising from common law, foreign law, or federal statute which might ordinarily give rise only to individual liability.” 2004 U.S. Dist. LEXIS 29045 , at *12. As two other judges in this district have found, that statement is overbroad and fails to give full effect to the holdings of
Cicippio-Puleo
and
Aeree. See Vine,
459 F.Supp.2d at 26 n. 17;
Holland,
2005 U.S. Dist. LEXIS 40254 , at *40-*41. The
Dodge
decision therefore lacks persuasive value and need not be followed. For these reasons, the Court will grant in part Iraq’s motion to dismiss and will dismiss Counts II and III of plaintiffs’ Third Amended Complaint.
3. Count I states a claim upon which relief can be granted
Count I of plaintiffs’ Third Amended Complaint seeks recovery for intentional infliction of emotional distress (hereinafter “IIED”) under state common law. As Iraq recognizes, this Court in
Dammarell II
determined that the state law providing the rule of decision is generally the domicile of the plaintiffs at the time of the tortious conduct. See 2005 WL 756090 , at *21;
see also Blais,
459 F.Supp.2d at 54 (same). Here, the parties appear to agree that the principles of state common law that govern are those of Florida (for the Barloon plaintiffs) and Oklahoma (for the Beaty plaintiffs). The parties share other common ground as well, acknowledging (1) that the highest courts of both Florida and Oklahoma have accepted the tort of intentional infliction of emotional distress, and (2) that those courts have adopted the definition of and limitations on that tort set forth in the Restatement (Second) of Torts § 46. Their agreement, however, ends there. Iraq contends that both states strictly enforce the Restatement’s so-called “presence” requirement, and that because plaintiffs were not physically present when their fathers were taken and held as hostages and possibly tortured, they cannot recover for any emotional distress that they may have suffered.
See
Restatement (Second) of Torts § 46(2)(a) (“Where such [extreme and outrageous] conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm.”). Plaintiffs respond that the Restatement itself contemplates some exceptions to the presence requirement,
see id. Comment l,
and point to FSIA cases in this district in which this Court and other judges have relaxed that requirement either explicitly or implicitly.
Indeed, although the parties have framed the decisive issue in terms of the Restatement’s “presence” requirement, courts in this district have permitted the close relatives of the victims of terrorist bombings to recover under an IIED cause of action without discussing the presence requirement.
See Dammarell v. Islamic Republic of Iran,
404 F.Supp.2d 261, 283, 285-86 (D.D.C.2005)
(“Dammarell
77”);
Salazar,
370 F.Supp.2d at 115 n. 12 (citing
Burnett v. Al Baraka Inv. and Dev. Corp.,
274 F.Supp.2d 86, 107 (D.D.C.2003), and
Jenco v. Islamic Republic of Iran,
154 F.Supp.2d 27, 35 (D.D.C.2001));
Sutherland v. Islamic Republic of Iran,
151 F.Supp.2d 27, 50 (D.D.C.2001). These decisions have endorsed the proposition that terrorist attacks such as bombing an embassy or holding someone hostage for an extended period are by their nature intended to harm not just those injured or killed at the time, but also the families of
*94
the injured.
Dammarell IV,
404 F.Supp.2d at 283 ;
Salazar,
370 F.Supp.2d at 115 n. 12. In treating close relatives of victims as themselves direct victims of the terrorist attacks, the courts have unmistakably (but only
implicitly)
applied § 46(1) of the Restatement, which governs direct victims and which has no presence requirement. The reasoning that supports treating absent relatives as direct victims is identical to the reasoning that supports relaxing the presence requirement. Accordingly, the Court will focus, as the parties do, on the presence requirement, at the same time explaining why C

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2487394. Public record. Not legal advice.