Opposition Brief — Roeder, Individually and on Behalf of All Others Similarly Situated v. Islamic Republic of Iran

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In the Supreme Court of the United States

DAVID M. ROEDER, ET AL., PETITIONERS

Vv.

ISLAMIC REPUBLIC OF IRAN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

DOUGLAS N. LETTER

H. THOMAS BYRON III

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Petitioners include former hostages who were held in

Iran for 444 days between 1979 and 1981, as well as

family members of such hostages. The President ne-

gotiated their release under an international agreement

known as the Algiers Accords. In exchange for the

release of the hostages, the Algiers Accords included a

commitment by the United States to bar and preclude

the prosecution of any claim against Iran arising out of

the hostages’ seizure and detention. The question

presented is as foilows:

Whether the preclusion of private suits effected by

the Algiers Accords was superseded by Acts of Con-

gress providing that the Republic of Iran does not have

sovereign immunity from the claims raised in the

instant case.

TABLE OF CONTENTS

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Laon Acicaieieblibdatelaaeemindinbisiiondaninnenspensienneneenumnnenies

acacia deatesstinnsinnunmmionondouveiens

TABLE OF AUTHORITIES

Cases:

American Ins. Ass’n v. Garamendi, 123 S. Ct.

ann anITITTIN oto th isicididedianichubeeninihiteenspennebiidacdaanioeniepacvonerbuensie

Argentine Republic v. Amerada Hess Shipping

Ns A EID ececrcsnecinsictenninescnesoseseescscssesessasoonnse

Cicippio-Puleo v. Islamic Republic of Iran,

Be Re CR, Cs CUE) crrcersccscsenzsencscenenenessoesssonsosteons

Consumer Product Safety Comm’n v. GTE

SPPUANIG, 447 U.S. 102 (1GBD) ....ceceresncesosescsreresssesesesesesesseses

Cook v. United States, 288 U.S. 102 (1933) oo.

Dames & Moore v. Regan, 453 U.S. 654 (1981) ............

Havana Club Holding, S.A. v. Galleon S.A., 203

F.3d 116 (2d Cir.), cert. denied, 531 U.S. 918

Murray v. The Charming Betsy, 6 U.S. (2 Cranch)

Sanaa IIITIIITI SIs i seschaciechldlnclaeiieadaaientehesciehatbeaihiewnsaseinenentensicchithenontosenice

Persinger v. Islamic Republic of Iran, 729 F.2d

835 (D.C. Cir.), cert. denied, 469 U.S. 881 (1984) .............

Saudi Arabia vy. Nelson, 507 U.S. 349 (1998) oe

Trans World Airlines, Inc. v. Franklin Mint Corp.,

SO IID i cisnssnscrssnaparanesenonncenetossanpiichdsanisdessenecseineines

United States v. Guy W. Capps, Inc., 204 F.2d 655

(4th Cir. 1953), aff’d on other grounds, 348 U.S. 296

STE schlsssisl nichts inbseeabiideletabbictienecnbnnessnionysnbebicenteneevbicbieesonees

Weinberger v. Rossi, 456 U.S. 25 (1982) .....ccccccssseseeeseee

Whitney v. Robertson, 124 U.S. 190 (1888) ....cccccceeceseseees

Wisniewski v. United States, 353 U.S. 901 (1957) ...........

(IID)

Constitution, treaty and statutes: Page

U.S. Const. Art. 1, § 7, Cl. 2 ...ccccssssccserseseessssssssrssssesenensenensens 14

Settlement of the Hostage Crisis, Jan. 18, 1981, US.-

Iran, 20 I.L.M. 223 sss salaalaicisaenestheenisetaienaidenaiadaliiniaibatas 2

Act of Nov. 28, 2001, Pub. L. No. 107-77, § 626(c),

115 Stat. 748 ..c.c.ccccccsccccsocesersssssescosesesocsnscsessseseessesssososecosscosees 5

Act of Jan. 10, 2002, Pub. L. No. 107-117, § 208,

115 Stat. 2299 .....ccccccccccccossrssssssscsssssscsecscescssssssessessersnenensnees 5

Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, § 221(a)(1), 110 Stat. 1241 «0... 3

Foreign Sovereign Immunities Act of 1976, 28 US.C.

1GOZ et SOQ. ..ressscssssecsssesseenesnssncnsensenssnsenssnsncneensenennennenssncensensens 3

DS U.S.C. 1604 ...cccccccccssersscessssccesssssceseressncersssssscnsvessnseeseeses 3

28 U.S.C. 1605(a)(7) (Supp. [ 2001) ......scseeesereererees 3, 4, 16

28 U.S.C. 1605(a)(7)(A) (Supp. 12001) .....seeseseeeseees 3, 5, 12

QB U.S.C. 1605 mote .....cccsscssesesssseesenersessnssessessesssnneenensnsens 3-4

Omnibus Consolidated Appropriations Act, 1997,

Pub. L. No. 104-208, Div. A., Tit. 1, § 191(c) [Tit.

V, § 589(a)], 110 Stat. 3009-172 ......scsesserereensesnnensansnrensenees 3

Miscellaneous:

H.R. Conf. Rep. No. 350, 107th Cong., Ist Sess. (2001)

(ZOOL) ecececcccesssssececescssesesecesossorerecececsesesssesesssssensnsscneassesesseacons 11,15

In the Supreme Court of the Anited States

No. 03-1147

DAVID M. ROEDER, ET AL., PETITIONERS

VU.

ISLAMIC REPUBLIC OF IRAN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-19a)

is reported at 333 F.3d 228. The opinion of the district

court (Pet. App. 20a-108a) is reported at 195 F. Supp.

2d 140.

JURISDICTION

The court of appeals entered its judgment on July 1,

2003. A petition for rehearing was denied on November

7, 2003 (Pet. App. 11la-112a). The petition for a writ of

certiorari was filed on February 5, 2004. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. On November 4, 1979, Iranian militants unlaw-

fully seized the United States Embassy in Tehran, Iran,

(1)

and captured the Embassy’s personnel. The captured

individuals were held hostage for a period of 444 days.

They were ultimately released on January 20, 1981,

pursuant to an international executive agreement

known as the Algiers Accords, which had been exe-

cuted the preceding day. See Dames & Moore v.

Regan, 453 U.S. 654, 662-665 (1981); Pet. App. 25a-27a.

The Algiers Accords include two declarations of the

government of Algeria, embodying an international

agreement between the United States and Iran. See

Settlement of the Hostage Crisis, Jan. 18, 1981, ‘US.-

Iran, 20 I.L.M. 223; Dames & Moore, 453 U.S. at 664;

Pet. App. 27a. A central purpose of the Algiers Ac-

cords was the negotiated release of the Americans held

hostage in Tehran, and the international agreement

was accordingly made contingent on the hostages’ free-

dom. See 20 I.L.M. at 225 (requiring certification “that

the 52 U.S. nationals have safely departed from Iran”

before funds would be transferred from escrow). In

agreeing to the Algiers Accords, the United States

committed to “bar and preclude the prosecution against

Iran of any pending or future claim of * * * a United

States national arising out of events * * * related to

(A) the seizure of the 52 United States nationals on

November 4, 1979, [or] (B) their subsequent detention.”

Id. at 227 (quoted at Pet. App. 28a). The Algiers

Accords were subsequently implemented by a series of

Executive Orders and Treasury Department regula-

tions. See Pet. App. 29a-31a; Dames & Moore, 453 U.S.

at 665-666.

1 Claims arising out of the seizure and detention of the hostages

are also expressly excluded from the arbitral jurisdiction of the

Iran-United States Claims Tribunal. See 20 I.L.M. at 231; Pet.

App. 29a.

2. The Foreign Sovereign Immunities Act of 1976

(FSIA), 28 U.S.C. 1602 et seq., provides “the sole basis

for obtaining jurisdiction over a foreign state in our

courts” in a civil suit. Argentine Republic v. Amerada

Hess Shipping Corp., 488 U.S. 428, 434 (1989). Under

the FSIA, foreign governments and their agencies or

instrumentalities are immune from suit in United

States courts unless a specific statutory exception ap-

plies. 28 U.S.C. 1604; Saudi Arabia v. Nelson, 507 U.S.

349, 355 (1993). In 1996, Congress amended the FSIA

to add a new exception to the general rule of foreign

sovereign immunity. See Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-

132, § 221(a)(1), 110 Stat. 1241 (28 U.S.C. 1605(a)(7)

(Supp. I 2001)). Under that amendment, foreign sover-

eign immunity is unavailable in certain suits “in which

money damages are sought against a foreign state for

personal injury or death that was caused by an act of

torture, extrajudicial killing, aircraft sabotage, hostage

taking, or the provision of material support or re-

sources * * * for such an act.” 28 U.S.C. 1605(a)(7)

(Supp. I 2001). That exception to the general rule of

foreign sovereign immunity applies if the foreign state

was designated as a state sponsor of terrorism by the

Department of State at the time the act occurred, or if

the foreign state was subsequently so designated as a

result of the act that is the basis for the suit. 28 U.S.C.

1605(a)(7)(A) (Supp. I 2001).

Later in 1996, Congress enacted a provision com-

monly known as the Flatow Amendment, which ad-

dresses the potential liability of foreign officers and

agents for acts of terrorism perpetrated in the course of

their official duties. See Omnibus Consolidated Appro-

priations Act, 1997, Pub. L. No. 104-208, Div. A., Tit. I,

§ 101(c) [Tit. V, § 589(a)], 110 Stat. 3009-172 (28 U.S.C.

1605 note). Under the Flatow Amendment, individual

officers and agents of designated state sponsors of

terrorism may be held personally liable for their per-

petration of the acts described in 28 U.S.C. 1605(a)(7)

(Supp. I 2001). See Cicippio-Puleo v. Islamic Republic

of Iran, 353 F.3d 1024, 1029 (D.C. Cir. 2004). By its

terms, however, the Flatow Amendment applies only to

“Cajn official, employee, or agent of a foreign state

designated as a state sponsor of terrorism,” not to the

foreign state itself. See id. at 1082. The D.C. Circuit

recently held in Cicippio-Puleo that “neither 28 U.S.C.

§ 1605(a)(7) nor the Flatow Amendment, nor the two

considered in tandem, creates a private right of action

against a foreign government.” Jd. at 1033.

3. Petitioners include the Americans held hostage in

Iran in 1979-1981, as well as their family members.

They brought this suit in 2000, naming as defendants

the Islamic Republic of Iran and the Iranian Ministry of

Foreign Affairs. The suit seeks compensation for in-

juries resulting from the detention and seizure of the

hostages. Iran did not appear in the district court to

defend against petitioners’ action, and in August 2001,

the court entered a default judgment on liability. See

Pet. App. 20-21a, 34a-35a.

In October 2001, shortly before a scheduled trial to

determine the appropriate amount of damages, the

United States filed a motion to intervene in this case, as

well as a separate motion to vacate the default judg-

ment and dismiss petitioners’ complaint. Pet. App. 35a-

36a. The government urged two independent grounds

for dismissal. First, the United States argued that the

government of Iran retained its sovereign immunity

from this suit under the FSIA. The government con-

tended that 28 U.S.C. 1605(a)(7), which provides that

foreign states are not immune from suit for certain acts

of state-sponsored terrorism, was inapplicable to this

ease because Iran had not been designated as a state

sponsor of terrorism either at the time the hostages

were seized and detained, or as a result of the hostage-

taking. Pet. App. 36a; see id. at 1la-12a. Second, the

government argued that the Algiers Accords had extin-

guished petitioners’ claims. Jd. at 36a.

In December 2001, while the government’s motions

to intervene and to vacate the default judgment were

pending in the district court, Congress amended 28

U.S.C. 1605(a)(7)(A)—the FSIA exception to the rule of

foreign sovereign immunity that applies in certain cases

involving state-sponsored terrorism—to add a specific

reference to the present case. Act of Nov. 28, 2001,

Pub. L. No. 107-77, § 626(c), 115 Stat. 803. Approxi-

mately one month later, Congress amended that pro-

vision to correct the erroneous designation of the

district judge’s initials in the provision as originally

enacted. Act of Jan. 10, 2002, Pub. L. No. 107-117,

§ 208, 115 Stat. 2299 (reprinted at Pet. App. 115a); see

Pet. App. 118a (text of 28 U.S.C. 1605(a)(7)(A) (Supp. I

2001) in its current form).

4. The district court granted the government’s mo-

tion to intervene, vacated its earlier default judgment,

and dismissed petitioners’ complaint. Pet. App. 20a-

108a. The court acknowledged that the recent appro-

priations provisions, cited above, had “amend[ed] the

FSIA to allow for a waiver of sovereign immunity not

only when the state-sponsor designation results from

the act at issue, but also for any acts related to this

litigation.” Jd. at 6la. The court held, however, that

petitioners “do not have a cause of action against Iran

because the Algiers Accords require that this suit be

dismissed.” Jd. at 69a.

——

Petitioners contended that the Algiers Accords are

invalid because they “resulted from Iran’s ‘demanding

of money from another government to stop inflicting

pain and suffering upon its innocent citizens’ and are |

therefore an unenforceable illegal contract.” Pet. App. |

724. The district court rejected that argument, ex-

plaining that petitioners’ challenge was foreclosed by

this Court’s decision in Dames & Moore, 453 USS. at

686, which “upholds the Algiers Accords as an exercise

of the President’s power.” Pet. App. 72a-73a. The

court recognized that “Congress has the power to dis-

agree with and overturn” executive agreements that

extinguish private claims. Jd. at 73a. The court con-

cluded, however, that none of the statutes on which

petitioners relied manifested a clear legislative intent

to abrogate the Algiers Accords. See id. at 73a-105a.

5. The court of appeals affirmed. Pet. App. 1a-19a.

a. The court of appeals held that the district court

had acted properly in granting the government’s

motion to intervene as of right. Pet. App. 6a-9a. The

court explained that the United States had moved to

intervene “less than thirty days after the State Depart-

ment received notice of the potential conflict with the

executive agreement,” and that “the interest of the

United States in meeting its obligations under the

executive agreement with Iran entitled it to intervene

as a defendant.” Jd. at 8a (internal quotation marks

omitted). The court also held that, for purposes of the

Flatow Amendment (see pp. 3-4, supra), Iran’s Ministry

of Foreign Affairs “must be treated as the state of Iran

itself rather than as its agent.” Pet. App. 11a; see id. at

10a-1la.

b. The court of appeals held that the recent appro-

priations laws on which petitioners principally relied

had not abrogated the Algiers Accords. Pet. App. 1la-

19a. While noting that “[t]he authority of the President

to settle claims of American nationals through execu-

tive agreements is clear,” the court acknowledged that

“It]here is no doubt that laws passed after the Presi-

dent enters into an executive agreement may abrogate

the agreement.” Jd. at lla. The court concluded, how-

ever, that petitioners had failed to identify any statu-

tory language reflecting a clear congressional intent to

accomplish that result.

The court of appeals explained that the recent appro-

priations laws

created an exception, for this case alone, to Iran’s

sovereign immunity, which would otherwise have

barred the action. The evident purpose was to

dispose of the government’s argument, in its motion

to vacate [the default judgment], that [petitioners ’]

action should be dismissed because Iran had not

been designated a state sponsor of terrorism at the

time the hostages were captured and held, and that

Iran’s later designation (in 1984) rested not on the

hostage crisis but on its support of terrorism outside

its borders.

Pet. App. 12a-138a. The court observed, however, that

“(t]he question remained whether the Algiers Accords,

on which the United States had relied as a second

ground for dismissal, survived the [appropriations

laws].” Id. at 13a (citation omitted). The court noted

that those laws “do not, on their face, say anything

about the Accords,” but “speak only to the antecedent

question of Iran’s immunity from suit in United States

courts.” Ibid. The court acknowledged that the joint

explanatory statement accompanying the second appro-

priations law contained language supporting peti-

tioners’ position, see id. at 16a, byt it observed that

“Congress did not vote on the statement and the

President did not sign a bill embodying it,” zd. at 16a-

17a. The court explained that “neither a treaty nor an

executive agreement will be considered abrogated or

modified by a later statute unless such purpose on the

part of Congress has been clearly expressed,” id. at 17a

(internal quotation marks omitted), and it found “no

clear expression in anything Congress enacted abrogat-

ing the Algiers Accords,” ibid.

Finally, the court of appeals rejected petitioners’ con-

tention that the pertinent appropriations provisions

would be rendered “futile” if they were construed not

to abrogate the Algiers Accords. Pet. App. 18a-19a.

The court explained that, assuming those provisions

were constitutional, they

had the effect of removing Iran’s sovereign immu-

nity, which the United States had raised in its

motion to vacate. This enabled [petitioners] to

argue that the Accords were not a valid executive

agreement. [Petitioners] in fact made this argument

in the district court (but they do not make it here).

That the district court rejected the argument is of

no moment. [Petitioners’] opportunity to have it

decided resulted directly from the amendments.

Id. at 19a (footnote and citations omitted).

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or of

another court of appeals. Further review is not

warranted.

1. As the court of appeals explained, “(t]he authority

of the President to settle claims of American nationals

through executive agreements is clear.” Pet. App. 11a;

see American Ins. Ass’n v. Garamendi, 123 S. Ct. 2374,

2387 (2003) (“Given the fact that the practice goes back

over 200 years to the first Presidential administration,

and has received congressional acquiescence through-

out its history, the conclusion that the President’s

control of foreign relations includes the settlement of

claims is indisputable.”) (brackets and internal quota-

tion marks omitted); Dames & Moore, 453 U.S. at 679 &

n.8. In Dames & Moore, this Court upheld the settle-

ment of claims accomplished in the Algiers Accords as a

permissible exercise of that Presidential authority. See

id. at 686, 688. And while petitioners contested the

validity of the Algiers Accords in the district court, the

district court rejected that challenge, see Pet. App. 72a-

73a, and petitioners did not pursue it on appeal, see id.

at 19a. Thus, any uncertainty that may exist concer -

ing the scope of the President’s authority to enter into

executive agreements in other contexts (see Pet. 21 n.3)

is irrelevant to the disposition of the instant case.

2. Twenty years ago, in Persinger v. Islamic Repub-

lic of Iran, 729 F.2d 835 (D.C. Cir.), cert. denied, 469

U.S. 881 (1984), the court of appeals dismissed an

earlier suit brought by one of the American hostages

and his parents seeking damages for his seizure and

detention. The court held that no FSIA exception to

the general rule of foreign sovereign immunity applied

to the case, and that the Republic of Iran was therefore

immune from suit. Id. at 838-839. In light of its deter-

mination that it lacked jurisdiction under the FSIA, the

court in Persinger declined to reach the question

whether the plaintiffs’ claims were properly extin-

guished pursuant to the Algiers Accords. Id. at 838.

The court of appeals in Persinger thus recognized

that Iran’s sovereign immunity under the FSIA, and

the extinguishment pursuant to the Algiers Accords of

private claims arising out of the seizure and detention

of the American hostages, imposed two analytically

distinct barriers to claims of the sort raised in this case.

In its initial district court filings in this case, the United

States likewise relied on the FSIA and the Algiers

Accords as independent grounds for dismissal of peti-

tioners’ suit. Although the appropriations laws on

which petitioners rely refer to the instant case by

docket number, and thus reflect congressional aware-

ness of the litigation, they speak only to the question

whether Iran is immune from suit under the FSIA.

Those laws neither address the continuing validity of

the Algiers Accords nor purport to confer a cause of

action. See Pet. App. 16a (court of appeals explains

that “[t]he text of [the first appropriations provision] is

consistent with removing the government’s first argu-

ment for dismissal” but “says nothing about the

second”). Particularly in light of the legal backdrop

against which Congress acted, there is no basis for.

construing the recent appropriations laws as abrogating

the commitment made by the President in the Algiers

Accords.

3. Petitioners’ arguments on the merits do not with-

stand scrutiny.

a. Petitioners suggest (Pet. 27-28) that the relevant

appropriations provisions would serve no meaningful

purpose if they are construed not to affect the validity

of the Algiers Accords. As the court of appeals

recognized (Pet. App. 19a), however, those provisions

removed Iran’s sovereign immunity for the acts in

question, and thus allowed petitioners to obtain a

judicial ruling on their claim that the Algiers Accords

were invalid ab initio—a contention that the court in

Persinger had previously declined to address. Elimi-

nation of the barrier to suit that was formerly imposed

by the FSIA also served the related purpose of clarify-

ing the locus of responsibility for dismissal of peti-

tioners’ claims. Before those appropriations laws were

enacted, petitioners’ suit was subject to dismissal on

one ground (the FSIA) that was attributable to Con-

gress itself, and on another ground (the Algiers

Accords) that reflected a legitimate exercise of purely

executive power. Even though Congress was unwilling

to abrogate the executive agreement through which the

release of the hostages had initially been obtained, Con-

gress may have wished to make clear that the Legis-

lative Branch had not imposed any affirmative obstacle

to petitioners’ efforts to obtain relief.

b. Petitioners rely on the joint explanatory state-

ment accompanying the second of the two pertinent

appropriations laws, which contains language that in

petitioners’ view (Pet. 26) suggests that Congress

intended in the first of the appropriations laws to

remove all existing barriers to petitioners’ suit. See

H.R. Conf. Rep. No. 350, 107th Cong., Ist Sess. 422-423

(2001) (stating that the previously enacted appropria-

tions provision “acknowledges that, notwithstanding

any other authority, the American citizens who were

taken hostage by the Islamic Republic of Iran in 1979

have a claim against Iran under [AEDPA] and the

provision specifically allows the judgment to stand”).

The court of appeals stated that the language contained

in the joint explanatory statement (and particularly the

phrase “notwithstanding any other authority”) might

have been sufficient to abrogate the Algiers Accords if

that language had been enacted into law. Pet. App. 16a.

The court recognized, however, that, while legislative

history may assist in the interpretation of ambiguous

statutory language, the joint explanatory statement

does not itself have the force of law. See id. at 16a-17a

(“Congress did not vote on the statement and the

President did not sign a bill embodying it.”). Because

the relevant appropriations provisions only amended

the FSIA to expand the pre-existing state-sponsored

terrorism exception to the rule of foreign sovereign

immunity, but did not abrogate the Algiers Accords or

amend any law other than the FSIA, those provisions

cannot properly be construed to eliminate the barrier to

petitioners’ suit imposed by the executive agreement.

Petitioners’ reliance (Pet. 26) on the joint explana-

tory statement is particularly misplaced because that

statement was published after the enactment of the

appropriations law that is alleged to have abrogated the

Algiers Accords. The joint explanatory statement in

question accompanied the second of the two appro-

priations provisions, which simply corrected an error in

the initials of the district judge in the caption of this

case. See p. 5, supra. Obviously that technical correc-

tion could not have had the effect of abrogating the

Algiers Accords. Although the joint explanatory state-

ment purports to describe the legal effect of the first

appropriations provision, such “subsequent legislative

history” has minimal interpretive value. See, ¢.9., Con-

sumer Prod. Safety Comm’n v. GTE Sylvania, 447 U.S.

102, 118 n.13 (1980); Pet. App. 17a.

4. Petitioners contend (Pet. 15-18) that the court of

appeals’ holding conflicts with decisions of this Court

and of other courts of appeals. Petitioners do not allege

a conflict with respect to the specific question of statu-

tory interpretation presented -by this case—.é.,

whether the Algiers Accords were abrogated by the

recent appropriations provisions that amended 28

U.S.C. 1605(a)(7)(A). Rather, petitioners argue that the

interpretive standard applied by the court of appeals,

under which an Act of Congress will not be treated as

abrogating an executive agreement unless the statute

contains a clear expression of that intent (see Pet. App.

17a-18a), conflicts with prior rulings. That claim lacks

merit.

a. Petitioners’ reliance (Pet. 16) on Whitney v.

Robertson, 124 U.S. 190 (1888), is misplaced. The Court

in Whitney held only that “when a law is clear in its

provisions, its validity cannot be assailed before the

courts for want of conformity to stipulations of a pre-

vious treaty.” Id at 195 (emphasis added). The Court

did not suggest that an ambiguous federal statute can

properly be interpreted to abrogate an existing treaty.

To the contrary, the Court stated that, when a treaty

and a statute “relate to the same subject, the courts will

always endeavor to construe them so as to give effect to

both, if that can be done without violating the language

of either.” Jd. at 194. This Court has consistently

recognized that “[a] treaty will not be deemed to have

been abrogated or modified by a later statute unless

such purpose on the part of Congress has been clearly

expressed.” Trans World Airlines, Inc. v. Franklin

Mint Corp., 466 U.S. 243, 252 (1984) (quoting Cook v.

United States, 288 U.S. 102, 120 (1933)); see also, e.g.,

ibid. (referring to the “firm and obviously sound canon

of construction against finding implicit repeal of a

treaty in ambiguous congressional action”).

Petitioners identify no decision suggesting that the

rule of construction described above is inapplicable

when an Act of Congress is claimed to have abrogated

an executive agreement. Nor would such a distinction

be appropriate. Although the term “treaty” has differ-

ent meanings in different contexts, see Weinberger v.

Rossi, 456 U.S. 25, 29-31 (1982), “[uJnder principles of

international law, the word ordinarily refers to an inter-

national agreement concluded between sovereigns,

regardless of the manner in which the agreement is

brought into force,” id. at 29. And, as the court of ap-

peals recognized, “Ce]xecutive agreements are essen-

tially contracts between nations, and like contracts be-

tween individuals, executive agreements are expected

to be honored by the parties.” Pet. App. 18a. The

determination whether a federal statute has abrogated

an executive agreement thus directly implicates the

long-established interpretive principle that “an act of

congress ought never to be construed to violate the law

of nations, if any other possible construction remains.”

Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64,

118 (1804)); see Rossi, 456 U.S. at 32

b. The court of appeals decisions on which peti-

tioners rely (Pet. 16-17) are likewise inapposite.’ The

court in Havana Club Holding, S.A. v. Galleon S.A.,

203 F.3d 116 (2d Cir.), cert. denied, 531 U.S. 918 (2000),

held only that an Act of Congress may have the effect

of abrogating a prior international agreement even if

the agreement is not specifically identified in the text of

the superseding statute. Jd. at 124. Rather, the court

2 Requiring a clear statement of legislative intent to abrogate

an executive agreement ensures, inter alia, that the President can

nake a fully informed decision whether to sign or veto a bill passed

by Congress. See U.S. Const. Art. I, § 7, Cl. 2. In making that

decision, the President could consider the foreign policy conse-

quences, including the possible reactions of other governments,

that abrogation of an existing agreement might entail. In the in-

stant case, the President signed both of the appropriations laws on

which petitioners rely, while expressing his intent that the laws be

implemented “in a manner consistent with the obligations of the

United States under the Algiers Accords.” Pet. App. 17a n.6

(quoting Presidential signing statement).

3 Although petitioners refer to those decisions as “faithfully

following Whitney” (Pet. 16), neither of the court of appeals deci-

sions described at pages 16-17 of the petition cites Whitney.

explained, “[w]hat is required is a clear expression by

Congress of a purpose to override protection that a

treaty would otherwise provide.” [bid. The D.C. Cir-

cuit’s decision in the instant case is consistent with that

analysis. The appropriations laws on which petitioners

rely contain no “clear expression” of a congressional

purpose to validate petitioners’ claims on the merits or

to provide petitioners a cause of action against Iran,

and thus to override the effect of the Algiers Accords.

Nor did the D.C. Circuit hold that a specific statutory

reference to the Algiers Accords was a prerequisite to

abrogation of that agreement.’

In United States v. Guy W. Capps, Inc., 204 F.2d 655,

658 (4th Cir. 1953), aff’d on other grounds, 348 U.S. 296

(1955), the court of appeals held that an executive

agreement was void where it “contravened provisions

of a statute dealing with the very matter to which it

related.” In the instant case, by contrast, petitioners do

not contend that any federal statute enacted prior to

1981 conferred a cause of action for their claims against

Iran. Nor did the D.C. Circuit in this case question the

4 In discussing the legislative history accompanying the second

of the appropriations laws on which petitioners rely, the court of

appeals quoted the assertion in the joint explanatory statement

that “notwithstanding any other authority, the American citizens

who were taken hostage by the Islamic Republic of Iran in 1979

have a claim against Iran.” Pet. App. 16a (quoting H.R. Conf. Rep.

No. 350, 107th Cong., Ist Sess. 422-423 (2001)) (emphasis added by

court of appeals). The court observed that “(t]his statement, and

the italicized language in particular, is the type of language that

might abrogate an executive agreement—if the statement had

been enacted.” Ibid. In light of the court of appeals’ characteriza-

tion of that language as potentially sufficient to abrogate the

Algiers Accords, the court’s opinion cannot reasonably be read to

require specific identification in the statutory text of the executive

agreement sought to be superseded.

proposition that, if the Algiers Accords were shown to

conflict with subsequently enacted federal legislation,

the provisions of the Act of Congress would supersede

those of the executive agreement. Because the court in

Guy W. Capps did not discuss the interpretive standard

to be used in determining whether an executive agree-

ment and an Act of Congress are in conflict, that deci-

sion is irrelevant to the question presented here.’

5. Petitioners contend (Pet. 18-25) that the court of

appeals’ decision contravenes separation-of-powers

principles by allowing an executive agreement that was

not ratified by the Senate to supersede an Act of

Congress. That argument is baseless. The court of

appeals did not, as petitioners suggest (Pet. 20), treat

“legislation abrogating an executive agreement” as

“eonstitutionally suspect”; nor did it “elevat[e] * * *

unilateral executive action over statutes enacted by

5 Petitioners also suggest (Pet. 29) that the D.C. Circuit’s deci-

sion in this case is inconsistent with the same court’s subsequent

ruling in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024

(D.C. Cir. 2004). If any tension between those decisions existed, its

resolution would be primarily entrusted to the D.C. Circuit. See

Wisniewski v. United States, 353 U.S. 901 (1957) (per curiam). In

any event, the two decisions are wholly consistent. The court in

Cicippio-Puleo recognized that, under the Flatow Amendment

(see pp. 3-4, supra), individual officers and agents of designated

state sponsors of terrorism may be held personally liable for their

perpetration of the acts described in 28 U.S.C. 1605(a)(7) (Supp. I

2001). See 353 F.3d at 1029. The court alsu observed that, subject

to certain conditions, “Section 1605(a)(7) waives the sovereign im-

munity of a designated ‘foreign state’ in actions in which money

damages are sought for personal injury or death caused by one of

the specified acts of terrorism.” Id. at 1032. The court squarely

held, however, that “neither 28 U.S.C. § 1605(a)(7) nor the Flatow

Amendment, nor the two considered in tandem, creates a private

right of action against a foreign government.” Id. at 1033; see p. 4,

supra.

Congress and signed by the President” (ibid.). To the

contrary, the court recognized that “[t]here is no doubt

that laws passed after the President enters into an

executive agreement may abrogate the agreement.”

Pet. App. lla. The court’s determination that the

particular laws on which petitioners rely did not have

that effect raises no meaningful constitutional concern.

Petitioners are also wrong in contending (Pet. 26-30)

that the instant case provides an “ideal vehicle” (Pet.

26) for determining what interpretive standard to apply

when an Act of Congress is alleged to have abrogated a

prior executive agreement. At the time Congress

enacted the pertinent appropriations laws, it was well

established that the barrier to private suits imposed by

the Algiers Accords was separate and distinct from

Iran’s sovereign immunity under the FSIA. See pp. 9-

10, supra. Congress nevertheless chose in the appro-

priations laws only to amend the FSIA to eliminate

Iran’s immunity from the instant suit, without ex-

pressly abrogating the executive agreement, granting

petitioners a cause of action against the foreign state, or

addressing the merits of petitioners’ claims in any

respect. Accordingly, by far the most natural reading

of the amendments to the FSIA made by the relevant

appropriations provisions is that they leave undis-

turbed the independent bar to suit imposed by the

Algiers Accords. For that reason, the proper disposi-

tion of this case does not depend on the precise degree

of clarity that is required for an Act of Congress to

abrogate an executive agreement.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.