holding, in a civil action brought against Iran by Americans who were held hostage at the U.S. embassy in Tehran from 1979 to 1981, that section 1605(a)(5) did not “abrogate the immunity generally enjoyed by a foreign sovereign for tortious acts at embassies within its own territory”
How later courts described this case
- holding, in a civil action brought against Iran by Americans who were held hostage at the U.S. embassy in Tehran from 1979 to 1981, that section 1605(a)(5) did not “abrogate the immunity generally enjoyed by a foreign sovereign for tortious acts at embassies within its own territory”
- noting that, in construing the FSIA, courts should consider the United States’ interest in reciprocal treatment abroad
- reviewing the legislative history and concluding that the parents’ emotional ■ distress arising from their son being taken hostage did not fall within the exception because “both the tort and injury must occur in the United States”
- vacating earlier opinion and affirming the district court’s 12 dismissal of actions alleging violations of treaties and of international, constitutional, and common law
Written by the judges who cited it.
The opinion
HARRY T. EDWARDS,
Circuit Judge, dissenting in part and concurring in part:
I concur in the result in Part II.A, but I dissent from the rationale and holding of Part II.B.
Part II.B holds that 28 U.S.C. § 1605 (a)(5) (1976) does not apply to Per-singer’s parents’ claim for damages against Iran for mental and emotional distress suffered within the United States and caused by the seizure and detention of their son in Iran. Section 1605(a)(5) provides, in pertinent part, that a foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case
in which money damages are sought against a foreign state for personal inju *844 ry or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment____
I find the language of this provision unambiguous and clearly applicable on its face to the parents’ claim. In particular, the statute plainly requires that only the injury, and not the tortious act or omission, occur in the United States. I see no reason to resort to the legislative history to clarify the plain language of the statute. Congress never enacted the language of the House Report that “the tortious act or omission must occur within the jurisdiction of the United States.” H.R.Rep. No. 1487, 94th Cong., 2d Sess. 21, U.S.Code Cong. & Admin.News 1976, p. 6619 (1976).
Moreover, I do not find that the case law persuasively supports the reading of the statute adopted in the majority opinion. Only one case, In re Sedco, Inc., 543 F.Supp. 561, 567 (S.D.Tex.1982), holds that the tortious act or omission must occur in the United States. The Sedeo court reached its conclusion primarily on the basis of the language of the House Report. A second case cited in the majority opinion, Frolova v. Union of Soviet Socialist Republics, 558 F.Supp. 358, 362 (N.D.Ill.1983), merely states, without any analysis, that the tortious act or omission must occur in the United States. That statement is pure dictum because the court expressly declined to decide the Foreign Sovereign Immunities Act issue.
I am also not convinced that it is anomalous to allow Persinger’s parents to recover damages for mental and emotional injuries suffered by virtue of their son’s confinement, but not to allow Persinger himself to recover damages for his own confinement. As a policy matter, Congress might easily have determined to give American courts jurisdiction over claims for damages caused by tortious acts or omissions occurring outside the United States only to the extent that those acts or omissions produce effects within the United States.
Finally, I am not convinced that the “direct effect” language of section 1605(a)(2) compels the reading of section 1605(a)(5) adopted in the majority opinion. There is nothing in the legislative history to support this view and one might as easily assume that Congress intended to restrict jurisdiction more in cases involving commercial activity not carried on in the United States than in cases involving noncommercial torts.
My main point of dissent is that the clear terms of the statute allow for the parents’ claim. I do not think that we are at liberty to decide otherwise on “policy grounds.”