Petition for Writ of Certiorari — Clark v. Thatcher

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92-529

IN THE

Supreme Court of the United States

OctroBer TERM, 1992

RAMSEY CLARK and LAWRENCE W. SCHILLING.

Petitioners.

VS.

MARGARET THATCHER, former Prime Minister of Great

Britain and THE UNITED KINGDOM.

Respondents

PETITION FOR-A WRIT OF CERTIORARI!

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

RAMSEY CLARK

Counsel of Record

LAWRENCE W. SCHILLING

Petitioners

36 East 12th Street

New York, New York 10003

(212) 475-3232

QUESTIONS PRESENTED

i. Whether sanctions under Rule 11 and

under Rule 38 of the Federal Rules of

Appellate Procedure were improperly

imposed upon plaintiffs’ attorneys for

their assertion of claims against

Margaret Thatcher, individually and as

Prime Minister of the United Kingdom, and

against the United Kingdom, to recover

damages for deaths and personal injuries,

because the claims were factually

sufficient, were not filed for an

improper purpose, were warranted by

existing law or a good faith argument for

the extension, modification or reversal

of existing law and were not frivolous.

2. Whether attorneys can be validly

sanctioned under Fed.R.Civ.P. 11 for

filing a complaint asserting claims for

damages against a foreign sovereign in a

United States District Court in reliance

on a direct holding of a United States

Court of Appeals that the Alien Tort

Statute confers subject matter

jurisdiction upon the District Courts

over such claims notwithstanding a

defense of foreign sovereign immunity, if

after the complaint is filed, the United

States Supreme Court grants certiorari,

and after the District Court dismisses

the complaint, reverses the holding of

the Court of Appeals relied on by the

attorneys in filing the complaint.

-F Whether the Foreign Sovereign

Immunity Act provides any impediment to

the assertion of jurisdiction under the

Alien Tort Statute for claims for damages

for deaths and personal injuries against

Margaret Thatcher individually and in her

official capacity as Prime Minister of

LS ————

iii

the United Kingdom.

4. Whether the Court of Appeals in

reversing the District Court’s clear

exercise of his discretion not to impose

Rule 11 sanctions upon plaintiffs’

attorneys and not to make any of the

specific findings required by Rule 11,

and in remanding the case to the District

Court "for imposition of an appropriate

sanction," erroneously failed to give the

required deference to the District

Court’s decision to deny sanctions and

erroneously precluded the District Court

on remand from exercising his full

discretion under Rule 11.

S. Whether Rule 11 sanctions were

validly imposed by the District Court

upon plaintiffs’ attorneys for the

assertion of claims in the complaint

where the District Court did not

exercise its own discretion i}

the Rule il sanctions or make

required by Rule 11.

TABLE OF CONTENTS

Page

Questions Presented i

Table of Contents 4

Parties Seeking Review*

Table of Authorities

Cases viii

U.S. Statutes

and Regulations X1ili

International Authorities “iis

Other Authorities Xiv

Opinions in the Case 1

Jurisdictional Grounds

in this Court 2

Rules Involved in the Case

Fed.R.Civ.P. 11 3

Fed.R.App.P. 38 4

Statement of the Case 5

* The parties to the appeal in the Court

of Appeals whose judgment is sought to be

reviewed are the two petitioners and two

respondents named in the caption of this

petition.

TABLE OF CONTENTS CONTINUED

Reasons for Granting the Writ

A. The Case Involves Issues Of

Fundamental Constitutional

Importance And International

Concern 21

B. Law Supporting The

Complaint Was Exhaustively

Researched And The Complaint Was

Carefully Prepared. 28

Cc. The complaint Against The

United Kingdom And Mrs. Thatcher

Was Warranted By Existing Law

And A Good Faith Argument

For The Extension, Modification

Or Reversal Of Existing Law 34

1. An Existing Decision Of

A U.S. Court Of Appeals

Supported The Complaint

When It Was Filed 34

2. The FSIA Does Not Confer

Immunity On Mrs. Thatcher 35

3. The FSIA Did Not Grant

Immunity For War Crimes

Proscribed By Prior

International Law 36

4. The United Kingdom And

Margaret Thatcher Were Not

Protected By Any Doctrine

Of Immunity Under Existing Law 41

vil

5. The United Kingdom And

Margaret Thatcher Could Not

Invoke Immunity Principles

In U.S. Courts For Criminal

Acts Committed In Complicity

With The United States For

Which The United States Was

Not immune 48

D. The Imposition Of Sanctions

In This Case Will Dangerously

Deter Assertions Of Violations Of

Fundamental Rights In The Most

Vital Area Of Human Need For A

Rule Of Law. 60

Conclusion 65

Appendix

Judgment of the Court of

Appeals per curiam (EDWARDS

ana D.H. GINSBURG, C.J.J.),

WALD, C.J., dissenting, sought

to be reviewed, April 10, 1992. Al

Initial Order of the Court of

Appeals, sought to be reviewed,

sept. 29, 1989. A6

Initial Decision of the Court of

Appeals, sought to be reviewed,

Sept. 29, 1989. A8

Memorandum and Order of the

District Court on remand,

March 14, 1992. Al4

Memorandum and Order of the

District Court, Dec. 23, 1988. Al7

ae ttt

Order of the Court of Appeals

denying rehearing,

June 26, 1992.

Complaint in the District Court

filed on April 13, 1988.

A29

A30

TABLE of AUTHORITIES

Cases

Argentine Republic v. Amerada

Hess Corp., 488 U.S. 428 (1989)

Amerada Hess v. Argentine Republic

830 F.2d 421 (2nd Cir. i987)

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964)

Beattie v. U.S.,

796 £.2¢6 9i {0.C. Cir. 1984)

Berkovitz v. U.S.,

100 L.Ed.2d 531 (1988)

Birnbaum v. U.S.,

588 F.2d 319 (2d Cir. 1978)

Bivens v. Six Unknown Agents,

403 U.S. 388 (1971)

Brown v. Board of Education

437 U.S. 483 (1954)

Butz v. Economou,

438 U.S. 478 (1978)

Dakhil v. Reagan,

No. 89-1074 (LFO)

(D.D.C. 1989)

In Re Doe,

860 F.2d 40 (2d Cir.

1988) _

Franklin v. Gwinnett

County Public Schools,

503 U.S. , 117 L.Ed.2d 208,

(1992)

bm Pe 5

13,34

41,46

33,56

Daeat

Forti v. Suarez-Mason,

672 F.Supp. 1531 (N.D.Cal. 1987)

Gilligan v. Morgan,

413 U.S. 1 (1973)

Harlow v. Fitzgerald,

457 U.S. 800 (1982)

Hatahley v. U.S.,

351 U.S. 173 (1956)

Hilton Hills Corp. v. Banov,

899 F.2d 40, 46 (D.C.Cir. 1990).

W.S. Kirkpatrick, Inc. v. Environmental

Tectonics Corporation International,

493 U.S. 400 (1990)

Laird v. Tatum,

408 U.S. 1 (1972)

Letelier v. Republic of Chile,

488 F.Supp. 665 (D.D.C. 1980)

Little v. Barreme

2 Cranch 170 (1804)

Liu v. The Republic of China,

892 F.2d 1419 (9th Cir. 1989)

Marbury v. Madison,

1 Cranch 137 (1803)

Meias v. McLungs Lessee,

9 Cranch 11 (1815)

Mitchell v. Harmony,

54 U.S. 115 (1851)

42,

33,53,

Murray Vv.

The Charming Betsy,

6 U.S. 64 (2 Cranch) (1804)

Nixon v. Fitzgerald,

475 U.S. 731 (1982) .

Osborn v. Bank of the United States,

9 Wheat. 738 (1824)

Paquete Habana and The Lola,

175 U.S. 677 (1900) 39,

Ex Parte Quirin,

317 U.S. 1 (1942)

Red Lake Band Chippewa Indians v. U.S.,

800 F.2d 1187 (D.C. Cir. 1986)

Reid v. Covert,

354 U.S. 1 (1957)

Republic of Mexico v. Hoffman,

324 U.S. 30 (1945)

Ex Parte Republic of Peru,

318 U.S. 578 (1943)

Rose v. Himely,

8 U.S. (4 Cranch) 240 (1808)

Sant wv. 7.8. .,

617 F.2d 755 (D.C. Cir. 1979)

Santissi

ma Trinidad,

20 U.S.

Scheuer

283 (7 Wheat.) (1822)

v. Rhodes,

416 U.S.

Talamani

470 U.S.

232 (1974)

v. Allstate Insurance Co.

1067 (1985)

—

xii

Underhill v. Hernandez,

168 U.S. 250 (1897) 41,45

United States v. Belmont,

301 U.S. 324 (1937) 39

United States v. Lee,

106 U.S. 196 (1982) 52

United States v. Nixon,

418 U.S. 683 (1974) of

United States v. Peters,

9 U.S. 115 (1809) 2°

United States v. Pink,

315 U.S. 203 (1942) 39

United States v. PLO,

695 F.Supp. 1456 (S.D.N.Y. 1988) 37

U.S. v. Smith, 499 U.S. :

113 L.Ed.2d 134, 142 (1991) 59

United States v. Verduzo-Urdiquez,

58 U.S.L.W. 4263 (1990) 61

Vogelaar v. U.S.

665 F.Supp. 1295 (E.D.Mich. 1987) 60

Westfall v. Erwin,

98 L.Ed.2d 619 (1988) 60

In Re Yamashita,

327 U.S. 1 (1945) 40

--—¥oungstown Steel and Tube Co. v. Sawyer,

343 U.S. 579 (1951) 52,54

xX1iii

U.S. Statutes and Requlations

10 U.S.C. 2734 Foreign Claims

Act 30

426 U.S.C. - 1346

2401(b) -2402

2671-80

Federal Tort

Claims Act &

28 U.S.C. 1350 Alien Tort

Statute 8

28 U.S.C. 1254 (1)

28 U.S.C. 1330, 1602-11

Foreign Sovereign

Immunities 16

28 U.S.C. 2680(a)

Discretionary Function

Exception 59

28 U.S.C. 2680(3)

Combatant Exception 59

28 U.S.C. 2680(K)

Claim Arising in a

Foreign Country Exception 60

International Authorities

Hague*Convention on the Opening of

Hostilities, 1907; Annexed

Regulations to Hague Convention

Xiv

No. IV of 1907; Hague Convention

No. IX of 1907 concerning Bombardment

by naval forces in time of War 40

Nuremberg Trial, 6 F.R.D. 69 (1946)

Paris Peace Pact of 1928

United Nations Charter,

Article 51 40

Other Authorities:

Hersch, Seymour M. "Target Qaddafi,"

New York Times Magazine, Feb. 22, 1987 27

Leigh, Sabbatino’s Silver Anniversary

and the Restatement: No Cause for Cele-

bration, 24 Int’l Lawyer 1 (1990). 46

Martin, David C. and John Walcott,

Best Laid Plans, Harper and Row,

1988. 27

Newsweek, "Reagan Raiders,"

April 28, 1986, p. 26. 27

Restatment of Law, Third: The Foreign

Relations Law of the United States,

(1987). § 443 45

Woodward, Bob, Veil: The Secret Wars

of the CIA, Pocket Books, 1987. a

OPINIONS IN THE CASE

The per curiam judgment of the Court

of Appeals together with the dissenting

statement of Circuit Judge Wald is

reported, 960 F.2d 1060 (D.C. Cir. 1992),

Al. The District Court’s memorandum and

order on remand filed March 14, 1991, is

unreported, Al4. This Court’s denial of

plaintiff’s petition for a writ of

certiorari without an opinion is reported,

495 U.S. 932 (1990). The initial decision

of the Court of Appeals is reported, 886

F.2d 438, A8, as is the Court’s order, id,

at 441, A6. The original memorandum and

order of the District Court dismissing the

complaint and declining to impose

Sanctions, is reported, 702 F.Supp. 319

(1988), A29.

JURISDICTIONAL GROUNDS IN THIS COURT

The per curiam judgment sought to be

reviewed was entered on April 10, 1992,

Al. A per curiam order denying

petitioners’ timely petition for rehearing

was entered on June 26, 1992, A29.

28 U.S.C. §1254(1) is the statutory

provision that confers jurisdiction on this

Court to review this case by writ of

certiorari. This petition is being timely

filed pursuant to Rule 13 of the Rules of

this Court within 90 days after the date of

denial of petitioners’ petition for

rehearing in the Court of Appeals.

RULES INVOLVED IN THE CASE

Rule 11, Fed.R.Civ.P.

Signing of Pleadings, Motions, and Other

Papers; Sanctions

Every pleading, motion, and other

paper of a party represented by an attorney

shall be signed by at least one attorney of

record in the attorney’s individual name,

whose address shall be stated. A party who

is not represented by an attorney shall

Sign the party’s pleading, motion, or other

paper and state the party’s address.

Except when otherwise specifically provided

by rule or statute, pleadings need not be

verified or accompanied by affidavit. The

rule in equity that the averments of an

answer under oath must be overcome by the

testimony of two witnesses or of one

witness sustained by corroborating

circumstances is abolished. The signature

of an attorney or party constitutes a

certificate by the signer that the signer

has read the pleading, motion, or other

paper; that to the best of the signer’s

knowledge, information, and belief formed

after reasonable inquiry it is well

grounded in fact and is warranted by

existing law or a good faith argument for

the extension, modification, or reversal of

existing law, and that it is not interposed

for any improper purpose, such as to

harass or to cause unnecessary delay or

needless increase in the cost of

litigation. If a pleading, motion, or

other paper is not signed, it shall be

stricken unless it is signed promptly after

the omission is called to the attention of

the pleader or movant. If a pleading,

motion, or other paper is signed in

violation of this rule, the court, upon

motion or upon its own initiative, shall

impose upon the person who signed it, a

represented party, or both, an appropriate

sanction, which may include an order to pay

to the other party or parties the amount of

the reasonable expenses incurred because of

the filing of the pleading, motion, or

other paper, including a reasonable

attorney’s fee.

Rule 38, Fed.R.App.P.

Damages for Delay

If a court of appeals shall

determine that an appeal is frivolous, it

may award just damages and single or

double costs to the appellee.

STATEMENT OF THE CASE

This case is before this Court for

the second time. A previous petition for

a writ of certiorari by plaintiffs

seeking review of the dismissal of the

complaint on motion before answer was

denied in May 1990, 495 U.S. 932, No. 89-

1497.

The present petition seeks review of

the affirmance by the Court of Appeals

for the District of Columbia of an order

of the District Court on remand directing

that petitioners Ramsey Clark and

Lawrence W. Schilling, counsel for

plaintiffs, each pay the British

defendants, Mrs. Margaret Thatcher and

the United Kingdom, $10,000, as a Rule 11

sanction. Al4. It also seeks review of

orders of the Court of Appeals imposing a

sanction of $16,852.07 upon petitioners

under Fed.R.App.P. 38 which petitioners

personally paid to the United Kingdom in

August 1990 with the caveat that with the

case still pending action should be taken

to make sure the money will be available

for repayment if the Rule 38 award is

vacated or reversed.

The first petition for a writ of

certiorari refrained from addressing the

questions of sanctions as they then stood

-- questions raised by the Court of

Appeals’ per curiam reversal of the

District Court’s denial of Rule 11

sanctions and by its Rule 38 sanctions

award to Margaret Thatcher and the United

Kingdon.

The present petitioners, acting then

as attorneys for the petitioners, the

plaintiffs, explained the absence of any

argument about sanctions to this Court as

they had previously explained to the

Court of Appeals in seeking rehearing,

that to press the sanctions issues would

demean the claims of their clients and

constitute a conflict of interest. The

initial petition for certiorari stated at

64:

"Counsel, bound to zealously assert

petitioners’ rights, cannot consistent

with that obligation, respond in the same

action in self defense to charges that

Sanctions should be imposed on counsel

because petitioners’ claims are

frivolous. No submission on the

sanctions issues, oral or written, has

been made by counsel below and none will

be made here, except to say counsel have

never filed an action they believed to be

more important to constitutional

government and the rule of law, and

believe these claims are right as a

matter of law."

This is an action for damages filed

in the United States District Court for

the District of Columbia in April 1988 by

or on behalf of fifty-five individuals

killed or injured by the unprecedented

bombing of Libya by U.S. military

aircraft on the direct order of the

President in April 1986. A second

complaint containing identical

allegations was filed on behalf of two

hundred eighty additional individuals in

U.S. District Court. Dakhil v. Reagan,

No. 89-1074 (LFO) D.D.C.

The complaint alleges violations of

the law of nations, international laws,

the Constitution, laws and treaties of

the United States, and various state and

foreign laws, including claims der the

Federal Tort Claims Act, the alien Tort

Statute, the Foreign Claims Act and RICO.

Laws and treaties violated were

identified in paragraphs 1, 3, 4, 5, 33,

37, 41, 43, and 46-50 of the complaint.

A30.

The complaint names as defendants,

President Reagan and Mrs. Thatcher,

individually and in their official

Capacity, the United States, the United

Kingdom and several officials and former

officials of the United States.

The complaint alleges that both the

United States and the United Kingdom are

being sued under 28 U.S.C. §1350, the

Alien Tort Claims Statute, for their

Clear violations of settled principles of

international law for which they are not

entitled to invoke any immunity as

sovereigns and that with respect to

claims under the Federal tort Act the

United States has waived its Sovereign

Immunity. A411.

In dismissing the complaint on

motion before answer the District Court

declined to impose Rule 11 sanctions

requested by both the United States and

the British defendants. 702 F.Supp. 319

(D.D.C. December 23, 1988), Al7.

In denying sanctions the District

Court stated, A26=-27:

The case offered no hope

whatsoever of success, and plaintiffs’

attorneys surely knew it.

‘The injuries for which suit is

brought are not insubstantial. It

cannot, therefore, be said that the case

is frivolous so much as it is

audacious. .

The Court surmised that the case was

brought as a public statement of protest.

It observed that the Courts of the United

States serve in some respect as a forum

for making such statements and should

continue to ado so. The Court relied on

Talamani v. Allstate Insurance Co., 470

U.S. 1067, 1070-71 (1985), in which this

Court declined to impose sanctions upon

an attorney for filing a jurisdictionally

defective appeal. The District Court

quoted the following passage from the

opinion of Justice Stevens in Talamani,

writing for himself and three other

Justices, explaining why sanctions

against the attorney were unwarranted:

"Freedom of access to the courts is

a cherished value in our democratic

society. Incremental c\ianges in settled

rules of law often result from

litigation. The courts provide the

mechanism for the peaceful resolution of

disputes that might otherwise give rise

to attempts at self-help. There is, and

should be, the strongest presumption of

open access to all levels of the judicial

system. Creating a risk that the

invocation of the judicial process may

give rise to punitive sanctions simply

because the litigant’s claim is

unmeritorious could only deter the

legitimate exercise of the right to seek

a peaceful redress of grievances through

judicial means."

The District Court ruled that "for

essentially those reasons" defendants’

applications for an award of sanctions

would be denied.

Plaintiffs appealed the dismissal of

their complaint. Cross-appeals were

taken by the United States, and by Mrs.

Thatcher and the United Kingdon. Without

taking any further steps to perfect its

appeal, the United States filed a motion

to dismiss its cross-appeal, thus

abandoning its claim for Rule 11

sanctions.

Before the record on appeal or

briefs were permitted to be filed, Mrs.

Thatcher and the United Kingdom moved for

summary disposition of their cross-appeal

seeking both reversal of the denial of

Rule .11 sanctions, and an award of

damages and costs under Fed.R.App.P. 38.

Under the rules of the Court of Appeals

governing motion practice, petitioners

were permitted a limited written response

and no oral argument.

The Court of Appeals granted the

United Kingdom’s motion for summary

disposition in a per curiam opinion, A8,

and order, A6. It summarily affirmed

the dismissal of the complaint

"Substantially for the reasons stated" by

the District Court, A7, and summarily

reversed the denial of Rule 11 sanctions

and granted fees and costs on appeal

under Rule 38. In awarding damages and

costs under Rule 38 for a frivolous

appeal, the Court relied entirely on this

Court’s decision in Argentine Republic v.

Amerada Hess Corp., 488 U.S. 428 (1989)

which reversed 830 F.2d 421 (2d Cir.

19870), and ruled that the FSIA "provides

the sole basis for obtaining jurisdiction

over a foreign state in our courts,’" and

that "a foreign states’ use of military

force allegedly in violation of

international law fell outside any of the

exceptions to sovereign immunity provided

by the FSIA." Al2. The Court of Appeals

directed that submissions be made with

respect to fees and costs under Rule 38

which it later taxed at $16,852.07,

virtually the full amount requested, upon

appellants’ attorneys jointly and

severally, and remanded the case to the

District Court for “imposition of an

appropriate sanction" under Rule 11.

Plaintiffs filed a petition for

rehearing and suggestion for rehearing en

banc that were denied on December 22,

1989, with Judges Wald, Mikva and Ruth B.

Ginsberg voting to grant en banc review

on the issue of sanctions.

As previously stated, plaintiffs

then filed a petition for a writ of

certiorari that was denied on May 14,

1990. 495 U.S. 932.

On June 11 1990, this Court decided

Cooter and Gell v. Hartmarx Corp., 496

U.S. 384, holding that Rule 11 sanctions

are entirely within the District Court’s

discretion, subject only to deferential,

abuse of discretion review.

On remand, written submissions were

made by the British defendants and

petitioners on the issues of sanctions

under Rule 11. In their submission

petitioners addressed for the first time

the merits of the issues of the sanctions

that had been imposed against then.

Petitioners urged upon the District

Court that it had full discretion on

remand to hold that Rule 11 had not been

violated or to choose any form of

appropriate sanction.

Petitioners emphasized that the

applicable provisions and principles of

international law binding on the United

States and the United Kingdom on which

plaintiffs relied w-:e fully analyzed in

more than 120 pages of affidavits by two

experts in the field, Prof. William

Thomas Mallison, and Prof. Francis A.

Boyle, that were filed in the District

Court in support of the complaint.

Petitioners cited to the Court two

. =

published commentaries critical of the

Sanctions, D’Amato, The Impositions of

the Sanctions for Claims Arising from the

U.S. Air Raid on Libya, 84 Amer.J.Int.Law

705 (1990); 19 International Law News,

From the Courts: International Lawyers

Sanctioned... 8 (ABA Section of

<nternational Law and Practice Summer

1990). Petitioners contend that the

views of Professor D’Amato, an expert in

international law, published in a

responsible law journal precluded

liability under Rule 11. Professor

D’Amato’s article expresses the view that

the Saltany claims for damages under the

Federal Tort Claims Act were well pleaded

and reasonably sustainable under existing

law, at 707, see also 710. It argues

that plaintiffs’ allegations of war

crimes made out a solid prima facie case,

that immunity for these war crimes for

the United Kingdom and its head of

government, Margaret Thatcher, was

questionable even after the U.S. Supreme

Court decision in Amerada Hess, it being

highly unlikely that Congress in enacting

the Foreign Sovereign Immunity Act

intended to broaden the scope of

sovereign immunity so as to repudate the

historic precedent of Nurenberg, at 710.

In their presentation to the

District Court on remand petitioners

disclaimed any intent to bring the action

as a statement of protest. They stated

then and reiterate now that they never

have filed a case they believe to be more

right in law.

Petitioners pointed out that neither

the District Court nor the Court of

Appeals found the complaint or the

plaintiffs’ claims to be frivolous, and

that there has been no judicial

——

determination in this case at any level,

given that the dismissal of the complaint

and affirmance were on grounds of

immunity, whether defendants’ conduct in

bombing Libya as they did in 1986 was

illegal and constituted yar crimes,

crimes against humanity and crimes

against peace.

In a two page memorandum and order

of March 14, 1991, Al14, the District

Court ruled on remand that the Court of

Appeals decision was an unequivocal

direction to it to impose a Rule 11

sanction upon plaintiff’s counsel, that

no appropriate "non-monetary" sanction

comes readily to mind, that none was

suggested and that the Court was shown no

authority for imposing an innovative

sanction such as community service. Al6-

17. The Court ordered petitioners to

each pay the British defendants the sum

of $10,000, "as a case-specific balance

between equity, deterrence and

compensation," citing Hilton Hills Corp.

v. Banov, 899 F.2d 40, 46 (D.C.Cir.

1990).

Petitioners appealed seeking

reversal of the $20,000 awarded under

Rule 11 and the $16,852.07 awarded under

Rule 38. Mrs. Thatcher and the United

Kingdom moved on this appeal as they had

on the first for summary disposition.

The motion was denied.

The appeal was fully briefed and

argued and on April 10, 1992, a judgment

per curiam upholding the Rule 11

sanctions was issued for the Court,

Edwards and D.H. Ginsburg, C.J.J., with

Judge Wald dissenting. 960 F.2d 1060.

Al.

The judgment per curiam held that

the law of the case barred petitioners’

challenge to the award of Rule 11 and

Rule 38 sanctions, there being no

apparent clear error combined with

manifest injustice. It held Cooter did

not constitute intervening law on the

Rule 11 issue in view of the prior

panel’s determination that the District

Court had found a Rule 11 violation.

Judge Wald, dissenting, concluded

that an exception to the law of case was

justified because the prior panel’s

decision was erroneous and worked a grave

injustice. She found Cooter did

represent an intervening change in the

law by establishing a "clearly erroneous"

standard of review and that the prior

panel failed to accord the deference

required by Cooter to the District

Court’s denial of Rule 11 sanctions.

In Judge Wald’s opinion, the prior

panel reached beyond the District Court’s

clear exercise of his discretion not to

impose sanctions and did so without

making specific findings required by Rule

11, relying instead on the District

Court’s side comments about the

likelihood of plaintiffs’ prevailing. In

her view, the majority decision will

chill well founded future claims.

Petitioners sought rehearing by the

panel and suggested that the case be

reheard en banc. The petition for

rehearing was denied, 2-1, on June 26,

1992, A29, as was the suggestion for

rehearing en banc.

This petition follows.

REASONS FOR GRANTING THE WRIT

A. The Case Involves Issues of

Fundamental Constitutional Importance and

International Concern

This case is critically important

sternal

pri ive l € t t

r in detern Ww t t é

law applies ¢t Lle« l act the

executive branct the militar f

the nited tate forelg Llie

the past decade, militar rorce

acting under orders of the President f

the United States invaded Grenada,

attacked Libya with the assistance of the

United Kingdom and its- Prime Minister,

invaded Panama and with some

participation by the United Nations and a

number of its members inflicted enormous

casualties and destruction on Iraq.

Damages sought by injured private parties

and estates of civilians who were killed

have been denied by the U.S. following

each episode. Each military action

1ited in many civilian deaths,

personal injuries and great damage to

private property. At this time, the

President of the United States is

serting that he has the power without

ngressional, or United Nations

y to use military force. He has

threatened Iraq, Cuba, North Korea,

Pakistan and other countries including

oya, with miltary assault this year.

The United States invaded Panama,

seized its head of state by force in

January 1989 and placed him on trial in

the United States. The United States is

exacting monetary damages from seized

assets of Iraq and is demanding without

Judicial determination of liability that

Libya pay damages for deaths of 270

persons killed in 1988 on Pan American

Airways Flight 103. It has denied

Iranian victims damages for the admitted

destruction of Iran Air Flight 655 over

the Persian gulf by U.S. Naval gunfire in

1988 which resulted in 290 deaths,

including 66 children.

To the first question presented by

this case, the United States Courts told

the world that U.S. sovereignty is

Supreme and peoples of the world have no

recourse in the U.S. Courts for deaths

and injuries they may suffer from U.S.

military acts however criminal, or

illegal they may be. No U.S. court

heretofore ever asserted sovereign

immunity as a bar to recovery for damages

arising from war crimes, or other

criminal acts. The second and remaining

question is whether the federal judiciary

will tell the American people and their

legal profession that if anyone dares

challenge in Court U.S. military actions

intended to kill innocent civilians they

will be punished by potentially ruinous

monetary sanctions. Before this case, no

court of the United States ever imposed

sanctions on lawyers who filed suit for

persons killed and injured by war crimes.

The complaint was based on

allegations of unprecedented criminal

acts by the President of the United

States, the Prime Minister of the United

Kingdom and officials and military

officers of the United States.

Defendants’ motions to dismiss the

complaint before trial were granted. The

District Court denied motions for

Sanctions by both the United States and

the United Kingdom.

The case arose from a U.S. aerial

attack on Libya. At about 2 a.m. on

April 15, 1986 United States Air Force

and Navy aircraft carried out a surprise

bombing attack on the cities of Tripoli

and Benghazi in Libya. Air Force F-111’s

flew from U.S. bases in England over the

Atlantic, west of France, Spain and

Portugal, through the Straits of

Gibraltar and across the Mediterranean

while more than 70 Navy planes flew from

aircraft carriers in the Mediterranean to

attack sleeping cities.

The purpose of the attack, as

alleged in the complaint, was to

assassinate Muammar Qaddafi, the head of

state of Libya, and to terrorize Libyans

by killing civilians to encourage his

overthrow. The bombing resulted in

scores of civilian deaths and injuries in

Tripoli and Benghazi.

The secrecy, surprise nature,

destruction of civilian areas, deaths of

civilians and intent to assassinate

Qaddafi were widely reported in the U.S.

media and in books by nationally Known

reporters for the New York Times, the

Washington Post, the Wall Street Journal,

and C.B.S. News, among others. See

"Target Qaddafi", Seymour M. Hersh, New

York Times Magazine, February 22, 1987;

Veil: The Secret Wars of the CIA, by Bob

Woodward, Pocket Books, 1987; Best Laid

Plans, by David C. Martin and John

Walcott, Harper and Row, 1988.

Margaret Thatcher, Prime Minister of

the United Kingdom, gave permission for

the use of U.S. bases in the United

Kingdom, personally approved the targets

knowing and having stated the attack was

illegal and would kill civilians. A45.

See also Reagan Raiders, Newsweek, April

28, 1986 at 26. Other nations refused

requests from the U.S. to participate in

the attack or permit aircraft to fly over

their territory for the purpose.

B. Law Supporting The Complaint Was

Exhaustively Researched And The Complaint

Was Carefully Prepared.

There was no claim that the

complaint was not completely professional

and competent. The facts were thoroughly

investigated. Three trips to Libya and

European hospitals were made. Individual

files were prepared on each of the 355

plaintiffs containing data of their

background and injuries. There was no

claim that the allegations were not well

grounded in fact.

The law supporting the complaint was

exhaustively briefed and presented to the

District Court. Lengthy affidavits of

two professors, experts on international

law were filed in support of the

international and military law bases for

the complaint. Substantial authority was

presented supporting each legal basis for

the complaint.

The decisions below are the first by

any Court of the United States holding

that the President can order an

assassination and the killing of

Civilians in foreign cities during

peacetime by illegal surprise military

bombardment and persons killed or injured

as a result have no remedy in U.S.

Courts. They are the first to hold U.S.

sovereign immunity bars any recovery of

damages by victims of war crimes. They

are the first to sanction lawyers who

filed such claims.

Written claims by or on behalf of

each of the plaintiffs were filed in

April, May and June, 1987 with the Office

of the White House and the United States

Department of Defense in accordance with

the prescribed procedures for the filing

of claims under the Federal Tort Claims

Act. The Department of Defense referred

the claims that were filed with it to the

Department of the Air Force. The Air

Force considered the claims under the

Foreign Claims Act, 10 U.S.C. 2734, and

denied them as such by letter dated

October 16, 1987. No denial or notice of

any other action taken on the claims

filed with the Office of the White House

was received.

Defendants moved for dismissal of

the actions before answer. The District

Court froze discovery and all further

activity in the case and set a briefing

schedule on the motions to dismiss. The

parties filed extensive briefs on the

issues. Oral argument was heard on

December 16, 1988. On December 23, 1988,

the District Court dismissed all the

Claims in a seven page memorandum and

Order. Al7.

The District Court held the United

States had not waived sovereign immunity.

It disposed of the Federal Tort Claims

Act, Alien Tort Claims Act, Foreign

Claims Act, and RICO with one sentence

each, all in a Single footnote. A24. It

held the President, acting in his

Capacity as commander in Chief under

Article II, section 2 of the

Constitution, had absolute immunity,

citing only Nixon v. Fitzgerald, 475 U.S.

731 (1982). As to all other U.S.

defendants from the Secretary of Defense

to the bomber pilots, it held "each

acted, as duty required, in accordance

with the orders of the commander in Chief

Or a superior officer" and is "entitled

to immunity from this suit, whether

immunity is classified as absolute or

qualified, and whatever the origins of

the rights plaintiffs claim may have been

violated" citing only Harlow v.

Fitzgerald, 457 U.S. 800 (1982). A26.

The District Court held the act of

state doctrine compelled dismissal of the

United Kingdom and that the State

Department suggestion of immunity for

Mrs. Thatcher was conclusive.

The District Court stated ina

footnote that it was bound by the rule

that all well-pleaded factual allegations

of the complaint must be taken as true,

that plaintiffs were entitled to all

favorable inferences therefrom and that

the complaint may not be dismissed unless

it appeared beyond doubt that plaintiffs

could prove no set of facts which would

entitle them to relief. A19. It

nevertheless found in direct

contradiction of the complaint that the

President acted in his capacity as

commander in chief and pursuant to

Article 51 of the United Nations Charter

to protect U.S. lives and property

against acts of terrorism.

The District Court did not address

any allegation of violations of legal

rights, made no effort to analyze

international law authorities presented

in support of petitioners’ claims and

ignored important constitutional claims

alleged, extensively briefed and argued

including major cases from before Little

v. Barreme, 2 Cranch 170 (1804) and after

Bivens v. Six Unknown Agents 403 U.S.

388 (1971).

Claims for sanctions by the

defendants were denied by the District

Court on the grounds that the case was

not so much frivolcus, as audacious,

adding U.S. courts should serve in some

respects as a forum for public statement

of protest.

Cc. The Complaint Against The United

Kingdom And Mr. Thatcher Was Warranted By

Existing Law And A Good Faith Argument

For The Extension, Modification Or

Reversal Of Existing Law

The complaint was supported by a

number of existing legal principles and

authorities, both specific and general in

their holdings. Among these are:

1. An Existing Decision Of A U.S.

Court Of Appeals Supported The Complaint

When It Was Filed

Amerada Hess Shipping Corp. v.

Argentine Republic, 830 F.2d 421 (2nd

Cir. 1987), specifically authorized suit

under the Alien Tort Statute, 28 U.S.C.

1350, against a foreign sovereign,

Argentina, for damages arising from its

attack on a neutral ship during the

Falkland-Malvinas conflict between

Argentine and the United Kingdom. It was

not reversed by the Supreme Court until

after the decision of the District Court

in this case.

2. The FSIA Does Not Confer Immunity

On Mrs. Thatcher

Argentine Republic v. Amerada Hess

Corp., 488 U.S. 428 (1989), decided after

the decision of the District Court held

in sweeping terms that the Foreign

Sovereign Immunities Act ("FSIA") is the

exclusive source of law for determining

sovereign immunity of foreign governments

in U.S. courts. It specifically held

that the liability of individual and

other defendants which are not foreign

states themselves, under the Alien Tort

Statute remains the same after the

passage of the FSIA as it was before the

enactment. 488 U.S. at 438. Amerada

Hess, therefore, provides no basis for

the assertion of immunity to claims

against Mrs. Thatcher under the Alien

Tort Statute. Cases like Santissima

Trinidad, 20 U.S. (7 Wheat) 283 (1822)

remain authority for Mrs. Thatcher’s

liability for damages under the existing

law.

3. The FSIA Did Not Grant Immunity

For War Crimes Proscribed By Prior

International Law

The FSIA expressly provides that the

immunity of a foreign state shall be

subject "to existing international

agreements to which the United States is

a party at the time of enactment of this

Act." 28 U.S.C. §1604. These

international agreements together with

the body of custumary international law

constitute clear and impgrtant waivers of

sovereign immunity on which petitioners

relied. In view of United States

participation in the United Nations, its

ratification of the Hague and Geneva

Conventions and the Nuremberg Charter,

among others, it is clear that Congress

did not intend in the FSIA to immunize

governments from accountability

theretofore existing for international

crimes, including war crimes, in

violation of the terms of U.S. treaty

obligations. Consistent construction of

the application of Congressional

legislation to pre-existing rights under

treaties and international law require

deference to those authorities in the

absence of the clearest expression to the

contrary. See Murray v. The Charming

Betsy, 6 U.S. 64 (2 Cranch) (1804); U.S.

_v. PLO, 695-F.Supp. 1456, 1464-65, 1468-

71 (S.D.N.Y. 1988).

The United States cannot sustain

claims of sovereign immunity in U.S.

courts for itself, its President,

officials and officers, or confer

immunity on the United Kingdom and its

Prime Minister who acted in concert with

the United States, against claimed

violations of international laws,

including crimes against peace, crimes

against humanity and war crimes. No Court

of the United States has ever held there

can be immunity against such claims. Nor

has any case presented the issue to a

federal court on such clear,

uncontestable facts in such inescapable

circumstances. If a government can

declare itself, its agents, accomplices

and co-conspirators, immune from all

liability for violations of international

law, including such crimes, then ail nope

for peace through international law is

destroyed.

Customary international law is a

part of the domestic law of the United

States. Treaties and executive

agreements are a part of the Supreme Law

of the land. See, Article VI,

Constitution of the United States; the

Paquette Habana And The Lola, 175 U.S.

677 (1900), United States v. Belmont, 301

U.S. 324 (1937); United States v. Pink,

315 U.S. 203 (1942). International law

operates directly under the Alien Tort

Statute, and indirectly under 28 U.S.C.

1331 by virtue of Article VI of the

Constitution and the incorporation of

international law into federal common

law.

In the midst of the Second World

War, the Supreme Court addressed the

jJusticiable nature of the laws and

customs of warfare in United States

courts:

From the very beginning of its

history this court has recognized

and applied the law of war as

including that part of the law of

nations which prescribes, for the

conduct of war, the status, rights

and duties of enemy nations as well

as of enemy individuals.

Ex Parte Quirin, 317 U.S. 1 (1942), at

27-28.

This Court held in In re Yamashita,

327 U.S. 1, 8 (1945) that Congress had

adopted "the system of military common

law applied by military tribunals so far

as it should be recognized and deemed

applicable by the courts, and as further

defined and supplemented by the Hague

Convention. See, The Nuremberg Trial,

6 F.R.D. 69, 130 (1946).

Amerada Hess held the Geneva

Convention on the High Seas and the Pan

American Maritime Neutrality Convention

do not create exceptions to the FSIA on

the facts of that case. It did not

address liability created by the large

body of international agreements relied

on by petitioners, as alleged for

example, in paragraph 3 of the complaint.

A33.

4. The United Kingdom And Margaret

Thatcher Were Not Protected By Any

Doctrine Of Immunity Under Existing Law

The District Court held the Act of

State doctrine compelled dismissal of the

complaint as to the United Kingdom, A20-

21. Finding the complaint charges

"Britain’s complicity in an illicit act

of war committed by the United States",

the District Court held such conduct

constitutes "an archetypal act of state."

It cited two cases, Underhill v.

Hernandez, 168 U.S. 250 (1897) and Banco

Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964), to support its

action. Since the denial of a rehearing

in the Court of Appeals, this Court has

made important clarifications in the act

of state doctrine in W.S. Kirkpatrick,

Inc. v. Environmental Tectonics

Corporation International, 493 U.S.400

(1990). Kirkpatrick confirms that the

act of state doctrine is inapplicable

here.

Kirkpatrick unanimously held, at

409:

...-Courts in the United States have

the power, and ordinarily the

obligation, to decide cases and

controversies properly presented to

them. The act of state doctrine

does not establish an exception for

cases and controversies that may

embarrass foreign governments, but

merely requires that, in the process

of deciding, the acts of foreign

sovereigns taken within their own

jurisdictions shall be deemed valid.

The complaint in this case does not ask

or require a court of the United States to

declare invalid any official act by the

United Kingdom taken within its own

territory. At issue is not the validity of

}

the United Kingdom’s grant of permission to

use its territory, but its complicity in the

attack by the United States against Libya.

Both of the British defendants are charged

in the complaint, with conspiring, aiding

and abetting and acting in concert with

their codefendants and others with respect

to a range of actions in the United States

and elsewhere culminating in the bombing of

Libya. The district court is not required

to address, or decide, and the outcome of

the claim against the United Kingdom and

Mrs. Thatcher does not rest on, a

declaration or finding that any official act

of the United Kingdom within its

Jurisdiction was invalid and thus

ineffective as a rule of decision for the

Courts of this country, any more than the

Claim in Kirkpatrick rested on the legality

of the Nigerian contract. As petitioners

had argued in their opposition below, "the

foreseeable, actual and intended

consequences of the actions occurred and

were applicable in Libya and not the United

Kingdom...the acts here resulted in

destruction of property in Libya and deaths

and personal injuries there." Citing

Restatement of Law Third: The Foreign

Relations Law of the United States

(1987)secs. 443-44, pp. 366-89. Cf.

Letelier v. Republic of Chile, 488 F. Supp.

665 (D.D.C. 1980).

The acts of Mrs. Thatcher do not

resemble in any way archetypal acts of

state. These are usually a taking or

expropriation by a foreign state of property

within its own territories or other acts of

a governmental character done by a foreign

state within its own territory and

applicable there. See Restatement, supra,

§443. It would totally distort the nature

and purpose of the acts of Mrs. Thatcher to

’

characterize them as being confined to the

territory of the United Kingdom.

Further, there is no act of state

immunity for the kind of violations of

international law here presented. In Rose

v. Himely, 8 U.S. (Cranch) 240 (1808), Chief

Justice Marshall held U.S. Courts are

required to examine the validity of a

foreign court’s action under the law of

nations, an issue not even raised in

Underhill v. Hernandez, supra. See,

Restatement, supra, §443, Comment c, p. 370:

..-A claim arising out of an alleged

violation of fundamental rights - for

instance, a claim on behalf of a victim

of torture or genocide - would (if

otherwise sustainable) probably not be

defeated by the act of state doctrine,

Since the accepted international law of

human rights is well established and

contemplates external scrutiny of such

acts. See §§701-703...

See also Liu v. The Republic of China, 892

F.2d 1419, 1431-34 (9th Cir. 1989); Forti v.

Suarez-Mason, 672 F.Supp. 1531, 1544-47

- | —

(N.D.Cal. 1987). For a recent review of the

act of state doctrine, written before but

acknowledging Kirkpatrick, supra, finding

"> .no issue is in more need of coherent

analysis than the act of state doctrine...",

see, Leigh, Sabbatino’s Silver Anniversary

and the Restatement: No Cause for

Celebration, 24 Int’l.Lawyer 1 (1990).

As Kirkpatrick points out, 493 U.S. at

409, even in cases where the act of state is

technically available, the judiciary may

consider whether it should nevertheless not

be recognized. See also, Banco Nacional de

Cuba v. Sabbatino, supra.

As to Mrs. Thatcher, who was the

political head of government, not the

sovereign head of state, after finding the

Department of State had "made the requisite

certification and determination to allow the

immunity" for her, after the complaint was

filed, the District Court held it "must

accept them as conclusive". It cited two

admiralty cases involving in rem proceedings

in U.S. courts against ships owned by

foreign governments without more. Both

cases pre date the Foreign Sovereign

Immunities Act. Ex parte Republic of Peru,

318 U.S. 578, 589 (1943); Republic of Mexico

v. Hoffman, 324 U.S. 30 (1945).

There is no basis in law for a holding

that the Department of State by its

suggestion can confer immunity on Mrs.

Thatcher precluding the courts of the United

States from consideration of the immunity

issue. Since the act of state doctrine and

foreign sovereign immunity are inapplicable

as a matter of law as a defense here for the

United Kingdom, the Department of State has

no power to mandate immunity for the head of

that government on the same claims. "The

scope of [head of state] immunity is in an

amorphous and undeveloped state...‘[{S]ince

there is no agreement on the degree of

immunity that attaches to the status of head

of state, there is no standard that can be

viewed as customary international law.’" In

re Doe, 860 F.2d 40, 44 (2d Cir. 1988)

(Considering head of state immunity from

prosecution of Ferdinand and Imelda Marcos. )

5. The United Kingdom And Margaret

Thatcher Could Not Invoke Immunity

Principles In U.S. Courts For Criminal Acts

Committed In Complicity With The United

States For Which The United States Was Not

Immune

The United States cannot grant immunity

which it does not have itself to a foreign

government or official bind which the Courts

of the United States must accept for

violations of international law, where as

here the foreign official and her nation

acted in concert with the United States.

The holding in Amerada Hess that the

Foreign Sovereign Immunities Act is the

| i

exclusive measure of the immunity of foreign

governments in U.S. courts did not

contemplate a case in which that foreign

government acted in complicity with the

United States to commit international crimes

of extraordinary dimension, as well as

crimes under the laws of the United States.

The FSIA was concerned overwhelmingly with

international commercial activity by foreign

governments.

The United States and its agents were

the principal actors and defendants here.

If the U.S. is liable its co-conspirators

must also be accountable in the same

lawsuit. Application of any doctrine of

immunity to protect the United Kingdom from

responsibility for such crimes when the

United States has no such immunity itself,

and both nations have acted in concert,

would subvert the integrity of the rule of

law. It would place diplomatic amenities

above international law, accountability for

war crimes and the protection of human

rights. It would empower a wrongdoer to

absolve his accomplice. The rule in Amerada

Hess is limited to cases in which the United

States can lawfully confer immunity.

Unquestioning judicial acceptance of

immunity cannot be compelled to cover crimes

by government agents and protect

accomplices.

Petitioners asserted claims and cited

extensive existing authority holding the

United States and its agents liable for

deaths and injuries from the bombing of

Libya.

Early in our constitutional history,

Chief Justice Marshall wrote,

"The government of the United States

has been emphatically termed a

government of laws, and not of men. It

will certainly cease to deserve this

high appellation, if the laws furnish

no remedy for the violation of a vested

legal right."

Marbury v. Madison, 1 Cranch 137, 163

(1803).

The following year, Chief Justice

Marshall addressed the right of aliens to

recover damages for alleged injuries caused

by the illegal seizure on order of the

President of their ship, the Flying Fish,

during the Congressional wartime suspension

of intercourse between France and the United

States. Little v. Barreme, 2 Cranch 170,

179 (1804).

The Chief Justice for a unanimous

Supreme Court held that a commander of a

ship of war of the United States in obeying

instructions from the President of the

United States acts at his peril. If those

instructions are not strictly warranted by

law, he is answerable in damages to any

person injured by their execution. Damages

were assessed for the loss of the use of the

ships and cargo.

Nearly one hundred fifty years later,

in his concurring opinion in Youngstown

Steel and Tube Co. v. Sawyer, 343 U.S. 579,

at 661 (1951), Justice Clark, referring to

Little v. Barreme wrote, "I know of no

subsequent holding of this Court to the

contrary." Butz v. Economou, 438 U.S. 478

(1978) confirmed the absence of a contrary

holding twenty-seven years later. Until

this day, there has been none.

In United States v. Lee, 106 U.S. 196,

at 220 (1982) this Court wrote in a case

restoring property to the family of the

military leader of the rebellion in our

bloodiest American war

"No man in this country is so high

that he is above the law. No

officer of the law may set that law

at defiance, with impunity. All the

officers of the Government, from the

highest to the lowest, are creatures

of the law and are bound to obey

2&.*

Id. at 220.

In the famous Spanish-American War

cases, The Paquete Habana and The Lola, 175

U.S. 677 (1900) the United States Supreme

Court held that two Spanish flag fishing

boats sailing out of Havana, seized by the

U.S. Navy during a declared war, were |

illegally taken under international law

which governed. The Court after an

exhaustive recitation of international

authority held:

",..it is an established rule of

international law, founded on

considerations of humanity to a poor

and industrious order of men, and of

the mutual convenience of

belligerent states, that coast

fishing vessels, with their

implements and supplies, cargoes and

crews, unarmed and honestly pursuing

their peaceful calling of catching

and bringing in fresh fish, are

exempt from capture as prize of

war."

The Paquete Habana, supra, at 708.

The United States was ordered to give

the proceeds of the sales of the vessels and

cargo to the claimants and pay damages and

costs.

During the Korean War, with hundreds of

thousands of U.S. soldiers serving in Korea,

the Supreme Court held the President had no

power to seize U.S. steel mills he said were

necessary for the war effort which were

threatened with labor strikes. The Court

refused to sustain the President’s order as

an exercise of his military power as

Commander in Chief of the Armed Forces.

Youngstown Steel and Tube Co. v. Sawyer, 343

U.S. 579 (1952).

By its plain words, the Constitution

extends the "judicial Power...to

controversies to which the United States

shall be a Party..." Article III, Section

2. In early cases, military officers acting

on the order of the President were

accountable in damages for their misdeeds.

See, Little v. Barreme, supra; United States

v. Peters, 9 U.S. 115 (1809); Meigs v.

McLungs Lessee, 9 Cranch 11 (1815); See,

Osborn v. Bank of the United States, 9

Wheat. 738 (1824); Mitchell v. Harmony, 54

U.S. 115, at 137

In Laird v. Tatum, 408 U.S. 1, at 15-16

(1972) Chief Justice Burger, writing for the

majority in a case rejecting federal

liability for surveillance of civilians

during the Vietnam War, observed:

Indeed, when presented with claims

of judicially cognizable injury

resulting from military intrusion

into the civilian sector, federal

courts are fully empowered to

consider claims of those asserting

such injury; there is nothing in our

Nation’s history or in this Court’s

decided cases, including our holding

today, that can properly be seen as

giving any indication that actual or

threatened injury by reason of

unlawful activities of the military

would go unnoticed or unremedied.

Even damage suits brought by military

personnel against their superiors for

injuries incident to their military service

which necessarily concern questions of

military discipline have won the support of

four Justices where the conduct causing the

injury, such as the surreptitious

administration of LSD for testing, is

unconscionable. See the dissenting opinion

of Justice O’Connor who, after discussing

the Nuremberg medical testing cases wrote,

"...the very least that society can

do is to see that the victims are

compensated ... by the perpetrators

... I would permit James Stanley’s

Bivens action to go forward."

United States v. Stanley, 483 U.S. 669, at

702-10 (1987).

In addition to these authorities

establishing liability where the executive

acted illegally and in excess of its

authority, petitioners relied below on

Bivens v. Six Unknown Agents, 403 U.S. 388

(1971). The Courts never addressed the

issue. The viability of plaintiffs’ Bivens

claims ought to be fully addressed and

decided by the Courts before they

arbitrarily impose debilitating sanctions.

Here the acts ordered by the President

were not acts the Constitution empowered him

to order, were not authorized by any

Congressional legislation, and violated

criminal laws and civil rights of all

jurisdictions involved.

Butz v. Economou, supra, held that in

a suit for damages against the Secretary of

Agriculture and others for alleged

retaliation against plaintiff employees for

their criticism of the Department, there is

only qualified immunity even for

discretionary acts within the scope of the

Secretary’s authority against a claim of

violation of constitutional rights.

The Court reached the same conclusion

where Governor Rhodes, commander in chief of

Ohio, and others were sued for damages

arising from rifle fire by the Ohio National

Guard at Kent State University which killed

four students and injured others. Scheuer

v. Rhodes, 416 U.S. 232 (1974). See also

Gilligan v. Morgan, 413 U.S. 1, 11-12

(1973).

In Nixon v. Fitzgerald, 457 U.S. 731

(1982) the U.S. Supreme Court, by a 5 to 4

vote, in a case involving the employment

rights of a federal management analyst held

only that the President was entitled to

absolute immunity from liability predicated

on his official acts within the perimeter of

his responsibility. Attempted assassination

and intentional killing of civilians is not

within the perimeter of the President’s

responsibility. Justice Blackmun observed

in his dissent,

",..the Court leaves unanswered the

unanswerable argument that no man,

not even the President of the United

States, is absolutely and fully

above the law." Id. at 797

Compelling existing authority and

argument was presented to demonstrate that

the United States waived its immunity under

the Federal Tort Claims Act. Among the

cases cited addressing the discretionary

function exception, 28 U.S.C. 2680(a) were

Berkovitz v. U.S., 486U.S. 531, 541, citing

Westfall v. Erwin, 484 U.S. 292, 296-97

(1988) (the judicial doctrine of official

immunity does not provide absolute immunity

to Government employees for torts

committed in the scope of their employment

but would have to be determined on a

case-by-case basis) id. at 299, see 7.8. ¥.

Smith, 499 U.S. —___- 113 L.Ed.2d 134, 142

(1991)); Hatahley v. U.S., 351 U.S. 173,

180-81 (1956); Red Lake Band of Chippewa

Indians v. U.S., 800 F.2d 1187, 1196, n.4

at 1197 (D.C. Cir. 1986); Birnbaum v. i Pe

588 F.2d 319, 329 (2d Cir. 1978). Among

cases cited addressin the combatant

exception, 28 U.S.C. 2680(j), was Vogelaar

v. U.S., 665 F.Supp. 1295 (E.D. Mich.

1987). Cases addressing and the foreign

country exception, 28 U.S.C. 2680(k)

included Beattie v. U.S., 756 F.2d 91, 96

(D.C. Cir. 1984); Sami _v..U.S., 617 F.2d

755, 761-63 (D.C. Cir. 1979),

"No case to our Knowledge has held the

United States exempt from liability for

acts or omissions occurring here which have

their operative effect in another country.

Indeed, to the extent the decided cases

address the issue at all, they have come to

a contrary conclusion." 617 F.2d at 762

D. The Imposition Of Sanctions In This

Case Will Dangerously Deter Assertions Of

Violations Of Fundamental Rights In The

Most Vital Area Of Human Need For A Rule Of

Law.

Inherent in the idea of

constitutional government and the rule of

law is the principle that agents of

"government may act only as the

Constitution authorizes, whether the

actions in question are foreign, or

domestic." See, Reid v. Covert, 354 U.S.

1, 6 (1957); United States v. Verduzo-

Urdiquez, 58 U.S.L.W. 4263, 4268 (1990)

(Kennedy, J. concurring.) The Courts

below denied petitioners "(T]he very

essence of civil liberty [which] certainly

consists in the right of every individual

to claim the protection of the laws,

whenever he receives an injury." Marbury v.

Madison, 1 Cranch at 163. See, Franklin v.

Gwinnett County Public Schools, 503

U.S.__,_ 117 L.Ed.2d 208, 216 (1992)

(applying the traditional presumption in

favor of the availability of any

appropriate relief for violation of a

federal right in concluding that a money

damages remedy is available in a sex

discrimination action under Title IX of the

Education Amendments of 1972).

That right to claim the protection of

the laws was denied though many deaths and

serious injuries occurred as a result of

deliberate criminal military actions. The

threat to the rule of law was compounded by

the imposition of monetary sanctions on

lawyers who prepared and filed the claims.

The sanctions were imposed by the Court of

Appeals, which reversed the District Court

on the question of sanctions in the face of

existing law which clearly warranted the

claim. The Court of Appeals summarily

affirmed the dismissal though on different

grounds than those relied on by the

District Court with no analysis of the many

authorities and theories presented. The

plaintiffs did not have their day in Court.

No serious attempt was made to consider

then authority and claims of right. An

offended panel brushed the claims aside and

punished the lawyers for audacity.

Precedent for the relief sought here

far exceeds the authority that was

available to plaintiffs in Brown v. Board

of Education. Sanctions in such cases can

have catastrophic effects on protection of

our most precious rights.

Dismissals on the grounds of sovereign

immunity and foreign sovereign immunity in

the face of allegations of war crimes is

unprecedented in the United States. It is

a Singularly unfortunate ground for a

nation claiming adherence to the rule of

law and commitment to democratic

institutions. To punish lawyers for

asserting the claims with monetary

sanctions is little different from

countries that imprison lawyers for

alleging their government committed crimes.

The power to sanction, like the power to

tax, involves the power to destroy. To

impose sanctions in the face of an

obviously sincere and exhaustive effort to

present legal history, analysis and

existing authority supporting the claims

and by construing words of the District

Court contrary to that Court’s own

conclusion,

usurping as well its discretion, all

without judicial analysis of the legal

merits of the claim, and by summary

affirmance, reveals such an arbitrary and

punitive state of mind by the Court of

Appeals panel as to threaten, if sustained,

any party or counsel that would dare seek

redress in U.S. Courts for the most

grievous and criminal injury by an

_ unbridled military. To be sure the

questions of law raised by the complaint

were unprecedented, complex, obscure, and

developing, but the acts of the United

States which gave rise to them were also

unprecedented. The Court of Appeals panel

was offended by the claims and used Rules

11 and 38 as its latter day penalty for

lese majeste. To avoid great damage to the

rule of law from the deterrent effect of

these sanctions, they must be set aside.

See, D’Amato, The Impositions of the

Sanctions for Claims Arising from the U.S.

Air Raid on Libya, 84 Amer.J.Int.Law 705

(1990).

CONCLUSION

The petition for a writ of certiorari

should be granted.

Respectfully submitted,

Ramsey Clark

Counsel of Record

Lawrence W. Schilling

Petitioners

36 East 12th Street

New York, New York 10003

212-475-3232

September 24, 1992

APPENDIX

A-1

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed April 10, 1992

No. 91-5107

FaraG M. MoHAMMED SALTANY, et al.,

APPELLANTS

Vv.

GeEorGE Busu, PRESIDENT OF THE UNITED StaTEs,* et ai.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(Civil Action No. 88-981)

Before Wap, Epwarps and D.H. Ginspurc, Circuit

Judges.

Judgment for the Court filed Per Curia.

“President Bush is substituted for former President Reagan,

insofar as the latter is sued in his official capacity. See Fev. R.

App. P. 43(c).

A-2

JUDGMENT

This cause came to be heard on appeal from a decision

by the District Court. The issues have been accorded full

consideration by the Court and occasion no need for a

published opinion. See D.C. Cir. R. 14(c).

Counsel challenge the award of Rule 11 and Rule 38

sanctions against them, as directed by a previous panel.

The law of the case doctrine bars this challenge. See, e.g.,

Melong v. Micronesian Claims Comm'n, 643 F.2d 10, 17

(D.C. Cir. 1980). We see no clear error combined with

manifest injustice, nor does Cooter & Gell v. Hartmarx

Corp., 110 S. Ct. 2447 (1990), constitute intervening law

on the Rule 11 issue. The prior panel determined that the

District Court had found a Rule 11 violation, see Saltany

v. Reagan, 886 F.2d 438, 440 (D.C. Cir. 1989), cert. denied,

495 U.S. 932 (1990), and there is no basis under Cooter

or any other precedent for us to reconsider this determi-

nation. Moreover, Cooter makes clear that sanctions must

be imposed once a violation is found. See 110 S. Ct. at

2454, 2460.

Counsel also argue for a nonmonetary Rule 11 sanction,

but the District Court considered this possibility and rea-

sonably exercised its discretion to impose a fine instead.

Accordingly, it is hereby ORDERED and ApDsuDGED that

the decision is affirmed.

The Clerk is directed to withhold issuance of the man-

date herein until seven days after disposition of any

timely petition for rehearing. See D.C. Cir. R. 15.

PER CuRIAM

For the Court:

Constance L. Dupre

Clerk

A separate dissenting statement filed by Circuit Judge

WALD is attached.

A-3

Wa Lp, Circuit Judge, dissenting: I regretfully dissent

from the majority’s affirmance of the district court’s impo-

sition of Rule 11 sanctions against plaintiffs’ counsel. The

district court had originally denied appellees’ motion for

Rule 11 sanctions, concluding that “i]t cannot ... be said

that the case is frivolous so much as it is audacious.”

Saltany v. Reagan, 702 F. Supp. 319, 322 (D.D.C. 1988).

On the first appeal, this court nonetheless concluded

that, when the district judge commented in his opinion

that “(t]he case offered no hope whatsoever of success, and

plaintiffs’ attorneys surely knew it,” id., he “found, in sub-

stance if not in terms, that plaintiffs’ counsel had violated

Rule 11; yet the court did not impose a sanction.” Saltany

v. Reagan, 886 F.2d 438, 440 (D.C. Cir. 1989) (per

curiam), cert. denied, 495 U.S. 932 (1990). The prior panel

remanded to the district court for the “imposition of an

appropriate sanction.” Jd. On remand, the district judge

not unreasonably interpreted the remand order “as an

unequivocal direction to it” to impose Rule 11 sanctions,

see Memorandum and Order, No. 88-981 (D.D.C. filed

Mar. 14, 1991) at 1-2, and he ordered plaintiffs’ counsel

to pay $10,000 each to the British appellees.

Under the “law of the case” doctrine, a decision on an

issue of law made at one stage of a case ordinarily

becomes a binding precedent to be followed in successive °

stages of the same case. However, this doctrine “is not an

inexorable command that rigidly binds a court to its for-

mer decisions but rather is an expression of good sense

and wise judicial practice.” Carpa, Inc. v. Ward Foods,

Inc., 567 F.2d 1316, 1320 (5th Cir. 1978). As this court

has stated on several occasions, “[t]o warrant divergence

from the law of the case, a court must not only be con-

vinced that its earlier decision was erroneous; it must also

be satisfied that adherence to the law of the case will

work a grave injustice.” Melong v. Micronesian Claims

Comm'n, 643 F.2d 10, 17 (D.C. Cir. 1980); Laffey v. North-

west Airlines, Inc., 642 F.2d 578, 585 (D.C. Cir. 1980); see

also Browning v. Navarro, 887 F.2d 553, 556 (5th Cir.

1989) (“We have the discretion to ignore a previous deci-

A-4

sion if substantially different evidence has been pres-

ented, there has been an intervening change in the law,

or the prior decision was clearly erroneous and it would

work a manifest injustice.”).

Despite the extremely high threshold that any depar-

ture from past holdings in the same case must meet, | feel

one is justified here. Cooter & Gell v. Hartmarx Corp., 496

U.S. 384 (1990), decided after the first appeal in this case,

does represent an “intervening change in the law” to the

extent that it establishes a “clearly erroneous” standard

rather than a de novo review standard for a review of a

decision to impose (or not to impose) Rule 11 sanctions.

Although the prior panel opinion did not expressly iden-

tify its standard in reviewing the district judge’s denial

of Rule 11 sanctions, in my view, it did not treat his

express decision not to impose sanctions with the required

deference by finding that he had ruled on the factual

predicates of Rule 11 but erred in not properly applying

the law to those findings.

In order to find a violation of Rule 11, the district judge

must conclude that, to the best of counsel’s knowledge,

information, and belief formed after reasonable inquiry,

the pleading was neither “well grounded in fact” nor

“warranted by existing law or a good faith argument for

the extension, modification, or reversal of existing law,”

or that the pleading was “interposed for an[{] improper

purpose, such as to harass or to cause unnecessary delay

or needless increase in the cost of litigation.” Fep. R. Civ.

P. 11. The district judge here explicitly declined to make

any such finding. His remark that the case “offered no

hope whatsoever of success, and plaintiffs’ attorneys

surely knew it” is not an appropriate substitute for the

conclusions required by Rule 11. Even if the district

judge’s conclusion that appellants’ counsel knew that they

had no hope of prevailing was correct—a “fact” put in

some doubt both by the enormous time and energy

expended by counsel in preparation of their case and the

expert opinions they were able to assemble on behalf of

the legitimacy of their clients’ cause of action—that con-

A-5

clusion is still not equivalent to a finding that counsel did

not have a “good faith argument for the extension, modifi-

cation, or reversal of existing law.” Surely the propriety

of Rule 11 sanctions should not depend on the degree of

optimism with which counsel approach litigation. The

prior panel’s conclusion that the district judge had found

“in substance” that the appellants’ counsel had violated

Rule 11 was itself, in my view, “clearly erroneous,” and

the sanctions imposed on the basis of that substituted

finding have created a “manifest injustice.”

The effect of reaching beyond a district judge’s clear

exercise of his discretion not to impose Rule 11 sanctions

and not to make the specific fact findings required by Rule

11 by reconstructing that decision out of side comments

about the likelihood of plaintiffs’ prevailing (and counsels’

knowledge thereof) cannot but chill well-founded future

suits, whose time in the law may not yet have come, but

whose value in exposing abuses and educating courts and

the public is substantial. Cognizant that the district court

had no realistic choice but to impose sanctions on remand,

I dissent from the result which our prior decision required

of him.

A-6

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 89-5051 September Term, 1988

Farag M. Mohammed Saltany, et al.,

Appellants

Vv.

Ronald W. Reagan, President of U.S., et al.

And consolidated cases

BEFORE: Buckley, D.H. Ginsburg and

Sentelle, Circuit Judges

ORDER

Upon consideration of the United

States' motion for summary affirmance, the

United Kingdom's and Prime Minister

Thatcher's motion for summary affirmance in

part and for summary reversal in part, and

an award of damages and costs, and the

opposition and replies thereto, it is

ORDERED that the district court's

memorandum and order filed December 23,

1988 granting defendants' motions to

A-7

dismiss, be summarily affirmed substantially

for the reasons stated therein. It is

FURTHER ORDERED that the motion for

summary reversal in part, and an award of

damages and costs be granted for the

reasons stated in the accompanying per

curiam opinion.

The Clerk is directed to withhold

issuance of the mandate herein until seven

days after disposition of any timely

petition for rehearing. ee D.C. Cir.

Rule 15.

er Curiam

{[Stamped: }

FILED SEP 29, 1989

Constance L. Dupre

Clerk

A-8

United States Court of Apprals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided September 29, 1989

Nos. 89-5051, 89-5052 & 89-5053

FARAG M. MOHAMMED SALTANY, et al., APPELLANTS

MUNIEM MOHAMED IBRAHEIM AL-MSHIRGI, et al.

Vv.

RONALD W. REAGAN, PRESIDENT OF U.S., et al.

Appeals from the United States District Court

for the District of Columbia

(D.C. Civil Action No. 88-00981)

On Motion for Summary Reversal

Mark R. Joelson, Joseph P. Griffin, and Mark N.

Bravin were on the pleadings for Thatcher, et al., appel-

A-9

lants in No. 89-5053 and appellees in Nos. 89-5051 &

89-5052.

Ramsey Clark and Lawrence W. Schilling were on the

pleadings for Saltany, et al., appellants in No. 89-5051

and appellees in Nos. 89-5052 & 89-5053.

Larry L. Gregg and Barbara L. Herwig were on the

pleadings for Reagan, et al., appellants in No. 89-5052

and appellees in Nos. 89-5051 & 89-5053.

Before: BUCKLEY, D.H. GINSBURG, and SENTELLE,

Circuit Judges.

Opinion PER CURIAM.

PER CURIAM: On April 13, 1988, fifty-five Libyan

citizens and residents filed suit in the district court seek-

ing damages for injuries, death, and property loss sus-

tained in the 1986 United States air strike on Libya.

Substantial damages were sought from the United States,

President Reagan, senior civilian and military officials,

and from the United Kingdom and Prime Minister

Thatcher as well. Plaintiffs sought to hold the British

defendants liable on the basis that the Prime Minister

gave the United States permission to use British air

bases in the air strike. Plaintiffs asserted claims under

the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.,

the Foreign Claims Act, 10 U.S.C. § 2734, the Alien Tort

Claims Act, 28 U.S.C. § 1350, the Racketeer Influenced

and Corrupt Organization Act, 18 U.S.C. § 1961, et seq.,

and various constitutional and common law theories, in-

cluding the “tort law of Libya.”

Upon motions, the district court dismissed plaintiffs’

claims as to all defendants. See Saltany v. Reagan, 702

F. Supp. 319 (D.D.C. 1988). Plaintiffs appealed and

defendants have moved this court for summary affirm-

ance. By separate order this date, we affirm the decision

dismissing plaintiffs’ case.

A-10

Both the United States and the British defendants also

moved the district court for sanctions pursuant to Fed-

eral Rule of Civil Procedure 11, on the grounds that

plaintiffs abused the judicial process and needlessly im-

posed upon defendants the cost of defending against an

action not supported by existing law or by any good faith

argument for the extension, modification, or reversal of

existing law. The district court found that plaintiffs’

counsel “surely knew” that the case “offered no hope

whatsoever of success,” but it declined to impose sanc-

tions in the interest of keeping the courthouse door open

as a forum for suits “brought as a public statement of

protest of Presidential action with which counsel (and,

to be sure, their clients) were in profound disagreement.”

Id. at 322.

The United Kingdom has cross-appealed from, and

seeks summary reversal of, the decision denying sanc-

tions. Additionally, the United Kingdom seeks attorneys’

fees and costs, pursuant to both Federal Rule of Appel-

late Procedure 38 and 28 U.S.C. § 1927, for the costs of

defending against a frivolous appeal. For the reasons

stated below, we reverse and remand the district court

decision with regard to the Rule 11 sanction, and grant

the United Kingdom’s motion for attorneys’ fees and

costs on appeal pursuant to Rule 38.

I. FEDERAL RULE OF CIrvIL PROCEDURE 11

The United Kingdom asserts that the district court

erred in denying its Rule 11 motion for attorneys’ fees

and costs, relying upon the well established principle that

the court must impose a sanction “once it has found a

violation of the rule.” Weil v. Markowitz, 829 F.2d 166,

171 (D.C. Cir. 1987) (footnote omitted) ; Westmoreland

v. CBS, 770 F.2d 1168, 1174-75 (D.C. Cir. 1985). Thus,

the question is whether the district court found, or should

have found, that plaintiffs violated Rule 11. If so, then

a sanction must be imposed.

A-11

Here, the district court observed that plaintiffs, citizens

or residents of Libya, could not be “presumed to be fa-

miliar with the rules of law of the United States.” Saltany,

702 F. Supp. at 322. The court noted, however, that “[i]t

is otherwise . . . with their counsel. The case offered no

hope whatsoever of success, and plaintiffs’ attorneys

surely knew it.” Jd.

The court thus found, in substance if not in terms,

that plaintiffs’ counsel had violated Rule 11; yet the court

did not impose a sanction. Instead, the court went on to

observe that because the “injuries for which the suit is

brought are not insubstantial,” the case is not “frivolous

so much as it is audacious.” Jd. The seriousness of the

injury, however, has no bearing upon whether a com-

plaint is properly grounded in law and fact. We may

agree with the district court that the suit is audacious—

that is not sanctionable in itself—but, we do not see how

filing a complaint that “plaintiffs’ attorneys surely knew”

had “no hope whatsoever of success” can be anything but

a violation of Rule 11.

Nonetheless, surmising that the suit was brought as

a public statement of protest, the district court opined

that courts can “serve in some respects as a forum for

makspg such statements, and should continue to do so.”

Id. (citing Talamini v. Allstate Insurance Co., 470 U.S.

1067, 1070-71 (1985) (Stevens, J., concurring in dis-

missal of appeal) ). We do not ccnceive it a proper func-

tion of a federal court to serve as a forum for “protests,”

to the detriment of parties with serious disputes waiting

to be heard. In any event, reliance upon Talamini was

inappropriate. That opinion, representing the views of

Justice Stevens and three other justices, argued in op-

position to awarding sanctions against an attorney who

had pursued an unmeritorious application for review in

an otherwise unremarkable unfair trade practices action.

It in no way speaks to the use of the courts as any sort

of political or protest forum. Whether punitive sanctions

A-12

should be imposed for invoking the judicial process is

properly fit into the equation when considering whether

a Rule 11 violation has occurred. Here, the district court

had already determined in effect that a violation had

occurred. Therefore, we grant the United Kingdom’s mo-

tion for summary reversal and remand the matter to the

district court for imposition of an appropriate sanction.

II. FEDERAL RULE OF APPELLATE PROCEDURE 38

The United Kingdom (with the support of the United

States) seeks to recover the attorneys’ fees and costs it

incurred by reason of plaintiffs’ pursuit of a frivolous

appeal. We grant attorneys’ fees and costs under Rule

38, and thus do not consider the alternate claim under

28 U.S.C. § 1927.

The basis for the United Kingdom’s request is that the

Supreme Court’s decision in Argentine Republic v.

Amerada Hess Corp., 109 S. Ct. 683 (1989), which was

issued about a month after the decision of the district

court, utterly foreclosed plaintiffs’ argument that the

United Kingdom is subject to the jurisdiction of the

courts of the United States. Cf. Saltany, 702 F. Supp.

at 320-21 (dismissing claims against Prime Minister

Thatcher on grounds of immunity, ( citing Ex Parte Re-

public of Peru, 318 U.S. 578, 589 (1943)) and against

the United Kingdom under the “act of state” doctrine).

In Amerada Hess, the Court ruled unanimously and

unequivocally that the Foreign Sovereign Immunities Act

(“FSIA”) provides the “sole basis for obtaining jurisdic-

tion over a foreign state in our courts.” Amerada Hess,

109 S. Ct. at 688. Furthermore, the Court held that a

foreign state’s use of military force allegedly in viola-

tion of international law fell outside any of the excep-

tions to sovereign immunity provided by the FSIA. /d.

at 690-92; see also Tel Oren v. Libyan Arab Republic,

726 F.2d 774, 775 n.1 (D.C. Cir. 1984) (per curiam)

(Edwards, J., concurring) (suit against the Government

A-13

of Libya seeking damages for a terrorist attack in Israel

was barred because of the exclusivity of the jurisdictional

grant in the FSIA), cert. denied, 470 U.S. 1003 (1985).

Under these holdings, the present appeal was clearly

doomed.

Unyielding to the holdings in Amerada Hess, however,

plaintiffs suggest that the FSIA may authorize this suit

because the statute provides that the immunity of a for-

eign state from the jurisdiction of the courts of the

United States is “[s]ubject to existing international

agreements to which the United States is a party at the

time of enactment of [the FSIA].” 28 U.S.C. § 1604.

In Amerada Hess, however, the Court examined this lan-

guage and found that it applies only “when international

agreements ‘expressly conflic([t]’ with the immunity pro-

visions of the FSIA. . . .” Amerada Hess, 109 S. Ct. at

692 (quoting H.R. Rep. No. 1487, 94th Cong., 2d Sess.

17, reprinted in 1976 U.S. Code Cong. & Ad. News 6604,

6616; S. Rep. No. 1310, 94th Cong., 2d Sess. 17 (1976) ).

On appeal, plaintiffs fail to identify any international

agreement that “expressly conflicts” with the FSIA, and

thus fail to establish any basis for jurisdiction in the

courts of the United States. Consequently, we find that

Amerada Hess clearly bars plaintiffs’ claim against the

United Kingdom, and that so much was apparent to coun-

sel for plaintiffs before they imposed upon the United

Kingdom the burden of this appeal. Accordingly, we

grant the United Kingdom’s motion for attorneys’ fees

and costs to be assessed against counsel.

The United Kingdom is directed to submit a statement

uf fees and costs; counsel fer plaintiffs shall respond

within fourteen days (14) of the date of their receipt of

that accounting.

So ordered.

A-14

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FARAG M. MOHAMMED SALTANY,

et al...

Plaintiffs,

)

Vv. )

)

Civil Action

No. 88-981

RONALD W. REAGAN, et al.,

(STAMPED: ]

Defendants. FILED

)MARCH 14 1991

CLERK, U.S.

DISTRICT COURT

DISTRICT OF

COLUMBIA

MEMORANDUM AND ORDER

This case is before the Court, on

remand from the Circuit Court of Appeals,

for the imposition of Rule 11 sanctions

upon plaintiffs’ counsel.

The British defendants ask to be

awarded approximately $116.000 in

attorneys’ fees and expenses.

Plaintiffs’ counsel renew their objection

to any sanctions award, asserting that

the issue remains open notwithstanding

A-15

the decision of the Court of Appeals. If

sanctions it must be, however, they

propose that the Court levy an

unspecified form of non-monetary

sanction. The amount sought by the

British defendants, they say, exceeds the

value of their assets, saving only their

homes. The British defendants respond

that they will content themselves with

one half the amount they seek.

The Court concludes that it is not

at liberty to refrain from imposing

sanctions altogether. It interprets the

decision of, the Court of Appeals as an

unequivocal direction to it to do

so. No appropriate "non-monetary"

sanction comes readily to mind. None is

suggested, and, indeed, the Court is

shown no authority for employing such

innovations as, for example, community

service in lieu of at least partial

recompense for an aggrieved opposing

A-16

litigant.

Keeping in mind that the Court must

select a sanction representing "a case-

specific balance between equity,

deterrence and compensation," see Hilton

Hotels Corp. v. Banov, 899 F.2d 40, 46

(D.c. Cir. 1990), it is, this 14th day of

March, 1991,

ORDERED, that Ramsey Clark, Ecq.,

and Lawrence W. Schilling, Esq., each pay

the British defendants the sum of ten

thousand Dollars ($10,000), payment to be

made to the defense counsel within ninety

(90) days, failing which the British

defendants may have judgment therefor.

/S/

Thomas Penfield Jackson

U.S. District Judge

A-17

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FARAG M. MOHAMMED SALTANY,

)

et al., )

Plaintiff, ) Civil Action

v. ) No. 88-0981

)

RONALD M. REAGAN, et al., ) [Stamped: }

Defendants ) FILED

)

DEC 23 1988

MEMORANDUM AND ORDER =

This is an action to recover damages for

death, personal injury, and the destruction

of property occurring in the course of air

strikes by U.S. military forces on targets

in the nation of Libya in April, 1986. 1

Plaintiffs allege themselves to be 55

Civilians, all residents of Libya, whose

1 on the evening of April 14, 1986, on

the order of the President of the United

States, U.S. Air Force and U.S. Navy

aircraft from bases in the United Kingdom

and carriers of the U.S. Sixth Fleet in the

Mediterranean Sea, respectively, executed

bombing raids in the vicinity of Tripoli and

Benghazi, Libya. The President acted,

pursuant to Article 51 of the United Nations

Charter, to protect U.S. lives and property

against acts of terrorism determined by the

U.S. government to have been instigated by

the Libyan government.

A-18

decedents were killed, who suffered personal

injuries, or whose property was damaged or

destroyed in the attacks. Defendants are the

President of the United States, various

Civilian and military officials of the U.S.

government, Prime Minister Margaret Thatcher

of the United Kingdom, and the United States

and the United Kingdom themselves. In

substance, the complaint alleges that all

defendants conspired, acted in concert with,

and aided and abetted one another in causing

or permitting the attacks to be made, with a

purpose to assassinate the Libyan head of

state, and/or to "terrorize" the civilian

population of Libya to the point of revolt

against the government. The defendants,

thus, are alleged to have violated the

criminal and civil laws of several U.S.

states, of the United States, certain

treaties, and rules of international law.

Jurisdiction is said to be predicated

upon various provisions of Title 28 of the

A-19

U.S. Code, specifically, sections 1331

(federal question); 1346(b) (the Federal

Tort Claims Act); Title 18, section 1964

(the Racketeer Influenced and Corrupt

Organization Act ("RICO")) is alse said to

confer jurisdiction.

All defendants have moved to dismiss

the complaint, and for an award of

sanctions. @

The British defendants, the United

Kingdom and Prime Minister Thatcher, are

sought to be held liable because the British

government gave permission for U.S. Air

2The Court will assume, for purposes

of the motions, that it is bound by the rule

that all of the well-pleaded factual

allegations of the complaint must be taken

as true, Miree v. DeKalb County, 433 U.S.

25, 27 n.2 (1977); that plaintiffs are

entitled to all favorable inferences which

may be drawn therefrom, Scheuer v. Rhodes,

416 U.S. 232, 236 (1974); and that the

complaint may not be dismissed unless it

appears beyond doubt that plaintiffs can

prove no set of facts in support of their

Claim which would entitle them to relief.

Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

A-20

Force planes based in Great Britain to

depart from and return to their air bases to

participate in the mission.

Pursuant to 28 U.S.C. § 517 the United

States has suggested to the Court the

immunity from its jurisdiction of Prime

Minister Thatcher as the sitting head of

government of a friendly foreign state. The

Department of State has made the requisite

certification and determination to allow the

immunity. The Court must accept them as

conclusive. Ex Parte Republic of Peru, 318

U.S. 578, 589 (1943); see Republic of

Mexico v. Hoffman, 324 U.S. 30, 34 (1945).

The complaint will be dismissed as to the

defendant Thatcher.

With respect to the claims made against

the United Kingdom itself, the act of state

doctrine compels a dismissal of the

complaint. Underhill v. Hernandez, 168 U.S.

250, 252 (1897); Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398 (1964). What is

charged is, quite simply, Britain's

complicity in an illicit act of war

committed by the United States. By any

definition that description of the United

Kingdom's allegedly wrongful conduct

constitutes an archetypal act of state.

Permission given by the head of government

of one sovereign nation, speaking from its

seat of government, to allow its territory

to be utilized by an ally, at the ally's

express request, to mount a military

operation against a third power could not

possibly be otherwise characterized. The

Court concludes that the doctrine stands as

an absolute bar to action against the United

Kingdom, and it therefore becomes

unnecessary to consider the several other

A-22

jurisdictional objections it has advanced in

support of its motion to dismiss. 3

nae

The United States defendants also

contend that this Court is without

jurisdiction to entertain the claims against

them, the issues presented being both non-

jusiticiable "political questions" entrusted

by the Constitution to the other branches of

government, and the several defendants

entitled to immunities which render them

unamenable to such a civil suit for damages.

The Court agrees that all U.S. defendants

are immune from this suit and does not,

3The Court notes, however, that the

United Kingdom has also asserted its

sovereign immunity as a bar to the action.

A foreign sovereign's immunity as a defense

to suit in courts of the United States is

now governed by the Foreign Sovereign

Immunities Act, 28 U.S.C. § 1330, 1602-1611,

see Verlind Ve Wa ank of

Nigeria, 461 U.S. 480 (1983), and appears to

be a viable defense for the United Kingdom

to claims such as are asserted here. See 28

U.S.C. § 1604, 1605.

A-23

therefore, reach the "political questions"

issue.

The United States itself, as a

sovereign, is immune from suit except to the

extent it has waived its immunity, and a

waiver of its sovereign immunity must be

unequivocally expressed and never implied.

United States v. Mitchell, 445 U.S. 535, 538

(1980). None of the statutory provisions

relied upon by plaintiffs to maintain this

action against the United States -- the

Federal Tort Claims Act (28 U.S.C. § 2671 et

seq.), the Alien Tort Claims Act (28 U.S.C.

§ 1350), the Foreign Claims act (10 U.S.C.

§ 2734), and RICO (18 U.S.C. § 1964) —

purport to waive the sovereign immunity of

the United States with respect to claims

A-24

such as those made here. * The complaint

will be dismissed as to the United States.

The military units were ordered into

action by President Reagan in his capacity

as commander-in-chief of the armed forces

4The Federal Tort Claims Act expressly

preserves the sovereign immunity of the

United States for acts of its officials that

involve the exercise of discretion, arise

from combatant activities in time of war, or

arise in a foreign country. 28 U.S.C. §

2680 (a)(j) and (k).

The Alien Tort Claims Act, which

confers jurisdiction upon U.S. district

courts to hear tort claims by aliens for_

alleged violations of U.S. treaties and the

law of nations, is not itself a waiver of

sovereign immunity, at least not that of the

United States. Sanchez-Espinoza v. Reagan,

770 F.2@ 202, 207 (D.C. Cir. 1985). (But

cf. Amerada Hess Shipping Corp. v. Argentine

Republic, 830 F.2d 4212 (2nd Cir. 1987),

cert. granted, 56 U.S.L.W. 3718 (U.S. April

18, 1988)).

The Foreign Claims Act, allowing

administrative claims to be made to the U.S.

government for injury to persons or property

abroad caused by its armed forces other than

in combat, not only fails to contain an

express waiver of sovereign immunity, but

also contemplates no judicial review of the

denial of a claim. See Broadnax v. United

States Army, 710 F.2d 865 (D.C. Cir. 1983);

10 U.3.€. § 2735.

RICO merely empowers U.S. district

courts to award civil remedies to persons

injured by a "pattern of racketeering

activity."

A-25

of the United States under Article II,

section 2, of the Constitution. In so doing

he acted with absolute immunity from

liability in private civil suits for

damages. Nixon v. Fitzgerald, 457 U.S. 731

(1982). The complaint must be dismissed as

to the defendant Reagan.

All other named defendants are civilian

or military officials of the United States

government who are alleged to have planned

and/or executed the air strikes ordered by

the President. That they did so in their

official capacities, and none other, is

manifest, and plaintiffs do not allege

otherwise. The avowed objective of the

operation, irrespective of motive, was to

inflict injury upon the Libyan targets which

would be "tortious" were it to be judged by

any Civil law standards. The mission also

called upon each participant of every rank

to exercise discretion in a myriad of

contexts of utmost complexity and gravity,

A-26

not to mention danger. And each acted, as

duty required, in accordance with the orders

of the commander-in-chief or a superior

officer. In the circumstances presented by

this case, the Court concludes that each of

the other named U.S. defendants is similarly

entitled to immunity from this suit, whether

the immunity is classified as absolute or

qualified, and whatever the origins of the

rights plaintiffs claim may have been

violated. See Harlow v. Fitzgerald, 457

U.S. 800 (1982). The complaint will be

dismissed as to each of them.

III.

The plaintiffs, purportedly citizens or

residents of Libya, cannot be presumed to be

familiar with the rules of law of the United

States. It is otherwise, however, with

their counsel. The case offered no hope

whatsoever of success, and plaintiffs'

attorneys surely knew it.

A-27

The injuries for which suit is brought

are not insubstantial. It cannot,

therefore, be said that the case is

frivolous so much as it is audacious.

The

Court surmises it was brought as a public

statement of protest of Presidential action

with which counsel (and, to be Sure, their

clients) were in profound disagreement.

The

courts of the United States, however, serve

in some respects as a forum for making

such

statements, and should continue to do so.

As Justice Stevens said, as the Supreme

Court dismissed, but declined to impose

Sanctions for, a meritless appeal:

Freedom of access to the courts is a

cherished value in our democratic

society. Incremental changes in

settled rules of law often result

from

litigation. The courts provide the

mechanism for the peaceful resolution

of disputes that might otherwise give

rise to attempts at self-help. There

is, and should be, the strongest

presumption of open access to all

levels of the judicial systen.

Creating a risk that the invocation of

the judicial process may give rise to

punitive sanctions simply because

litigant's claim is unmeritorious

the

could

only deter the legitimate exercise of

A-28

the right to seek a peaceful redress of

grievances through judicial means.

Talamani v. Allstate Insurance Co., 470 U.S.

1067, 1070-71 (1985). For essentially those

reasons, therefore, the Court will deny

defendants' applications for an award of

sanctions.

It is, this 23rd day of December,

1988,

ORDERED, that the complaint is

dismissed with prejudice as to all

defendants; and it is

FURTHER ORDERED, that defendants'

application for an award of sanctions is

denied.

THOMAS PENFIELD JACKSON

U.S. District Judge

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 91-5107 September Tern,

1991

CA 88-0981

Farag M. Mohammed Saltany, et al.,

Appellants

¥.

Ronald W. Reagan, President of the U.S.,

et al.

BEFORE:

Wald, Edwards and D.H. Ginsburg,

Circuit Judges

[Stamped: }

FILED JUN 26 1992

Constance L. Dupre

CLERK

Upon consideration of appellants’

petition for rehearing, filed May 26,

1992, it is

ORDERED,

by the Court, that the petition is

denied.

Per Curiam

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

BY: s/ Robert A. Bonner

Deputy Clerk

Circuit Judge Wald would grant the

Petition for Rehearing

A-30

COMPLAINT CIVIL ACTION NO. 88-0981

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FARAG M. MOHAMMED SALTANY, as personal

representative of KHLOUD HASAN AL-ORAIBI,

deceased and HASAN MOHAMED AL-ORAIBI,

deceased; MOHAMMED A. TARHONY, as personal

representative of HALIMA MOHAMED ABDUL

QADIR, deceased; ABDOLHAMED ALI ALMESMARY,

as pesonal representative of MOHAMED ALI AL-

MISMARI, deceased; MASSUD A. ABDOLMOLLA, as

personal representative of SALEH ABDUL KARIM

ABDUL MAULA, deceased, SALLAH M. MOHAMMED,

as personal representative of ABDUL QADIR

SALEH MOHAMED AL-MARTOUZ, deceased; ABDALLA

ALI EL YAZBI, as personal representative of

MOHAMMAD YOUSSEF ALYAZGY, deceased, RASHAA

MOUNIR SHARMEETT, deceased, KHADIJA SOLIMAN

PASHA AGHA, deceased, YOUSSSEF ALY ALYAZGY,

deceased and KHADIFA ALY ALYAZGY, deceased;

B.F. AL-GHUSSEIN, as personal representative

of RAFAT BASSAM AL-GHUSSEIN, deceased; ALI

MILAD TWER, as personal representative of

NAJIA MOHAMED ALTHOIR, deceased; ABDULMAGID

IBRAHIM AL-MISHERGHI, as personal

representative of MOHAMED IBRAHIEM AL-

MSHIRGI, deceased; HANIYA M. HEGAB, as

personal representative of MAHFOUD AL-SHEIK

AL~MISURATI, deceased; NASR ALI MASOUD;

BELGASIM ABRIEK ALI IBRAHM; SALEM MOHAMED

ABDULA KNUBER ALI; KHALID MOHAMMAD SADEK AL-

ZKAR; BASSAM FAWZI TAWFIC AL-GHUSSEN; SAID

A.S. HITACH; MANSOUR SLIEH SLAMA; SALEM OMAR

SALEM HDAIDAN; AMBURKA SALIM FARAHAT; NAJIA

MOHAMED YAHIA; FAUZIA MILAD ALI ALTHOIR;

HANIYAAH MOHAMMAD HAJAAB; MOUMAN MAHFOUD EL-

SHEIK; NAJID MAHFOUD EL-SHEIK; FATIMA

MAHFOUD AL-SHEIK; AHLAM MOHAMAD HEGAB; ABO-

EGELA MOHAMMAD GRANA; FATMA MOHAMMED

BACKUSH; ASMAA ABOEGELA GRANA; NAIMA HUSSEIN

ABOZODA; NAIMA ABOEGELE GRANA; ABBULNASSER

A-31

ABO-EGELA MOHAMMAD GRANA; ;MOHAMMED ABOEGELA

M. GRANA; ABU-ZIED OMAR DOORDA; AHMED ABU-

ZIED OMAR DOORDA; MOURAD MOHAMED IBRAHIEM

AL-MSHIRGI; MUNIEM MOHAMED IBRAHIEM AL-

MSHIRGI; AWAISHA ALTAHIER IBRAHIEM BAKIER;

MAHAA MOHAMED IBRAHIEM AL-MSHIRGI; MOHAMMAD

SALEH ALI AL~GANZOURI; BREKA MABROKA SALEH

AL-GANZOURI; MABROKA AHMAD ABOU-ESSBA;

OUSSAMAH F.E. AL-SHRIF; ALI HIEDER IBREHIEM

ALTHONALI; FATMA MOHAMMAD AL-SABLI; HALIMA

ABD ELGAMI AL-KESHIK; MOHARRAM MOHAMED

ALTHONALI; ALI MASOUD BEN ALI; and IZZEDDIN

ALI MASOUD;

Plaintiffs,

Plaintiffs are all residents of the

nation of Libya. Their address in

the United States is:

c/o Ramsey Clark

36 East 12th Street

New York, N.Y. 10003

-V=

Ronald W. Reagan, President of the United

States; Margaret Thatcher, Prime Minister of

the United Kingdom; Caspar W. Weinberger;

Admiral William J. Crowe, Jr., USN; Legal

representative of the Estate of William J.

Casey, deceased; General Bernard W. Rogers;

Admiral Frank B. Kelso, Jr.; General Charles

A. Gabriel; John Doe and Ruth Roe, et. al.;

the United Kingdom; and the United States of

America,

Defendants.

——— em ewe ee ee wee ew eee wee wwe wee eee ie ee

COMPLAINT FOR DAMAGES FOR VIOLATIONS OF THE

INTERNATIONAL LAWS, THE CONSTITUTION, LAWS

AND TREATIES OF THE UNITED STATES, THE LAWS

OF LIBYA, THE DISTRICT OF COLUMBIA, VIRGINIA

AND OTHER STATES UNDER THE ALIEN TORT

OOOO

A-32

STATUTE, FEDERAL TORT CLAIMS ACT, FOREIGN

CLAIMS ACT AND RICO

Plaintiffs, by their attorneys, for

their complaint herein, respectfully allege

as follows:

1. This is an action by or on behalf

of 55 men, women, and children, all

Civilians, who were killed or injured in the

U.S. bombing of Libya on April 14-15, 1986.

Plaintiffs seek to recover damages for

death, personal injury and the destruction

of property. The action is against the

United States of America, the United

Kingdom, President Ronald W. Reagan, Prime

Minister Margaret Thatcher and other present

and former civilian and military officials

and officers of the United States. The

actions of the defendants leading to the

bombing of Libya by aircraft of the United

States Air Force and Navy violated the law

of nations, international laws, maritime

law, the Constitution, laws and treaties of

A-33

the United States, and the laws of Libya,

the District of Columbia, California,

Virginia and other states and were tortious.

Plaintiffs' claims-are being asserted under

the Alien Tort Statute and the Federal Tort

Claims Act, among other laws. Plaintiffs

are all aliens and residents of Libya

although some are absent from Libya from

time to time for medical or other reasons.

2. This court has jurisdiction of

this action under 28 U.S.C. 1331, 1346(b),

1350 and 1361, and 18 U.S.C. 1964, and

principles of pendent jurisdiction.

3. Defendants are guilty of conduct

constituting clear violations of settled

principles of international law prohibiting

the use of force by a state against the

territorial integrity or political

independence of another state, requiring

settlement of international disputes by

peaceful means, prohibiting armed attacks by

a state against civilians, and prohibiting

A-34

crimes against heads of state and other

internationally protected persons. These

principles are established by the United

Nations Charter, U.N. General Assembly

resolution 2625 (24 October 1970),

"Declaration on Principles of International

Law concerning Friendly Relations and

Cooperation Among States in Accordance with

the Charter of the United Nations," the

Universal Declaration of Human Rights, the

international law of armed conflict, the

Charter of the International Military

Tribunal (Nuremberg Charter), the General

Assembly Resolution adopting the Nuremberg

Charter Principles, the Geneva Convention

for the Protection of Civilians (1949), the

Annexed Regulations to Hague Convention No.

IV of 1907, Hague Convention No. IX of 1907

concerning Bombardment by Naval Forces in

Time of War, The Convention on the

Prevention and Punishment of Crimes against

Internationally Protected Persons (New York

A-35

1973), and other agreements, resolutions,

treaties, declarations, documents and

practices constituting the customary

international law of human rights and the

law of nations. Neither the United States

nor the United Kingdom can invoke sovereign

immunity under domestic law as a bar to the

jurisdiction of this Court or as a defense

on the merits.

4. This action arises under the

Constitution, laws and treaties of the

United States, including without limitation,

the treaties of the United States set forth

in the preceding paragraph; U.S. Const. Art.

II, Sec. 3, commanding the President and

other officials to take care that laws be

faithfully executed, U.S. Const., Art. I,

Sec. 8, conferring exclusive power on

Congress to declare war, clause 11, and to

define anc punish offenses against the Law

of Nations, clause 10; the criminal laws of

the United States, including among others,

A-36

18 U.S.C. 956, 960 and 371, and the criminal

laws of the District of Columbia, Virginia,

California and other States; Executive Order

No. 12333, promulgat :d by President Reagan,

prohibiting U.S. employees from engaging in,

or conspiring to engage in, assassination;

directives of the Secretary of Defense and

the Judge Advocates General of the Air Force

and Navy, giving effect to the international

prohibitions against armed attacks directed

at civilans, e.g. the U.S. Air Force

Manual, t ati w-- fe)

Armed Conflict and Air Operations (AF 110-

31, 19 Nov. 1976), para. 5-3; The

Commander's Handbook on the Law of Naval

Operations (Naval Warfare Publication 9,

1987) Chap. 8 and provisions of the Code of

Military Justice which make clear that the

only military orders which must be obeyed

are orders which are lawful, see e.g. 10

U.S.C. 892, providing punishment for failure

"to obey any lawful general order or

A-37

regulation..." and that obedience to an

order to commit a criminal or unlawful act

is no defense.

5. Written claims by or on behalf of

the plaintiffs in this action for deaths,

injuries and damage incurred in the U.S.

bombing of Libya described in this complaint

were duly filed in April, May and June, 1987

with the Office of the White House and the

United States Department of Defense in

accordance with the prescribed procedures -

for the filing of claims under the Federal

Tort Claims Act. The Department of Defense

referred the claims that were filed with it

to the Department of the Air Force. The Air

Force considered the claims under the

Foreign Claims Act, 10 U.S.C. 2734, and

denied them as such by letter dated October

16, 1987. To date, no denial or notice of

any other action taken on the claims filed

with the Office of the White House has been

communicated to plaintiffs.

A-38

6. Plaintiffs are the personal

representatives of 15 persons who were

killed in the U.S. bombing of Libya

described in this complaint, and 40

survivors of the bombing who sustained

serious personal injuries and property loss.

Plaintiff FARAG M. MOHAMMED SALTANY is the

personal representative of HASAN MOHAMED AL-

ORAIBI, 38, who was killed by shrapnel to

his skull, and of his daughter KHLOUD HASAN

AL-ORAIBI, an infant 3 months of age, who

was killed by shrapnel penetrating her hest

as she slept, both in their home in a

residential area of Benghazi at about 2:00

a.m. on April 15, 1986, Libyan time. The

other plaintiffs who are personal

representatives of persons killed by the

bombing are MOHAMMED A. TARHONY,

representative of HALIMA MOHAMED ABDUL

QADIR, deceased; ABDOLHAMED ALI ALMESMARY,

representative of MOHAMED ALI AL-MISMARI,

A-39

deceased; MASSUD A. ABDOLMOLLA

representative of SALEH ABDUL KARIM ABDUL

MAULA, deceased; SALLAH M. MOHAMMED

representative of ABDUL QADIR SALEH MOHAMED

AL-MARTOUZ, deceased; ALI ABDALLA ALI EL

YAZBI representative of MOHAMMAD YOSSSEF

ALYAZGY, deceased, RASHAA MOUNIR SHARMEETT,

deceased, KHADIJA SOLIMAN PASHA AGHA,

deceased, YOUSSEF ALY ALYAZGY, deceased, and

KHADIFA ALY ALYAZGY, deceased; B.F. AL-

GHUSSEIN representative of RAFAT BASSAM AL-

GHUSSEIN, deceased; ALI MILAD TWER

representative of RAFAT BASSAM ALTHOIR,

deceased; HANIYA M. HEGAB representative of

MAHFOUD AL-SHEIKH AL-MISURATI, deceased, and

ABUDLMAGID IBRAHIM AL-MISHERGHI

representative of MOHAMED IBRAHIEM AL-

MSHIRGI, deceased.

7. The remaining 40 plaintiffs are

persons who survived the bombing and are

suing for serious personal injuries and

property damage sustained in the bombing.

A-40

They are SALEM MOHAMED ABDULA KNUBER ALI,

NASR ALI MASOUD, BELGASIM ABRIEK ALI IBRAHM,

KHALID MOHAMMAD SADEK AL-ZKAR, BASSAN FAWZI

TAWFIC AL-GHUSSEN, SAID A.S. HITACH, MANSOUR

SLIEH SLAMA, SALEM OMAR SLEM HDAIDAN,

AMBURKA SALIM FARAHAT, NAJIA MOHAMED YAHIA,

FAUZIA MILAD ALI ALTHOIR, HANIYAAH MOHAMMAD

HAJAAB, MOUMAN MAHFOUD EL-SHEIK, NAJIB

MAHFOUD EL-SHEIK, FATIMA MAHFOUD AL-SHEIK,

AHLAM MOHAMAD HEGAB, ABO-EGELA MOHAMMAD

GRANA, FATMA MOHAMMED BACKUSH, ASMAA

ABOEGELA GRANA, NAIMA HUSSEIN ABO-ZODA,

NAIMA ABOEGELE GRANA, ABDULKARIM ABO-EGELA

MOHAMMAD GRANA, ABDULNASSER ABO-EGELA

MOHAMMAD GRANA, MOHAMMED ABEGELA M. GRANA,

ABU-ZIED OMAR DOORDA, AHMED ABU-ZIED OMAR

DOORDA, MOURAD MOHAMED IBRAHIEM AL-MSHIRGI,

MUNIEM MOHAMED IBRAHIEM AL~MSHIRGI, AWAISHA

ALTAHIER IBRAHIEM BAKIER, MAHAA MOHAMED

IBRAHIEM AL-MSHIRGI, MOHAMMAD SALEH ALI AL-

GANZOURI, BREKA MABROKA SALEH AL-GANZOURI,

MABROKA AHMAD ABOU-ESSBA, OUSSAMAH F.E. AL-

A-41

SHRIF, ALI HIEDER IBREHIEM ALTHONALI, FATMA

MOHAMADA AL-SABLI, HALIMA ABD ELGAMI AL-

KESHIK, MOHARRAM MOHAMED ALTHONALI, ALI

MASOUD BEN ALI and IZZEDDIN ALI. MASOUD.

8. Defendants United States of

America and the United Kingdom are being

sued under 28 U.S.C. 1350 for their clear

violations of settled principles of

international law for which they are not

entitled to invoke any immunity as

sovereigns. In addition, the United States

has waived its sovereign immunity with

respect to the claims set forth in this

complaint under the Federal Tort Claims Act,

principally 28 U.S.C. 1346(b), 2401(b),

2402, 2671-80.

9. Defendant Ronald W. Reagan is

President of the United States, Commander-

in-chief of the armed forces and a member of

the National Security Council. He is being

sued in his individual and official

capacities.

A-42

10. Defendant Margaret Thatcher is

Prime Minister of the United Kingdom. She

is being sued individually and in her

official capacity.

11. Defendant Caspar W. Weinberger was

the Secretary of Defense and a member of the

National Security Council when the U.S. air

strike on Libya was planned, approved,

ordered, implemented and carried out. He is

being sued individually and for action taken

in his official capacity.

12. Defendant Admiral William J.

Crowe, Jr., USN, was Chairman, Joint Chiefs

of Staff and a member of the National

Security Council when the U.S. Air strike

on Libya was planned, approved, ordered,

implemented and carried out. He is being

sued individually and in his official

capacity.

13. Defendant Genera) Charles A.

Gabriel, was Chief of Staff of the Air Force

when the U.S. air strike on Libya was

A-43

planned, approved, ordered, implemented and

Carried out. He is being sued individually

and in his official capacity.

14. Defendant General Bernard W.

Rogers, U.S. Army, retired, was United

States Military Commander in Europe and was

in charge of the Air Force and Navy eircraft

that carried out the U.S. air strike on

Libya.

15. Defendant Admiral Frank B. Kelso,

Jr., was Vice-Admiral in command of the

United States Sixth Fleet, USN, that carried

out the air strike on Libya.

16. The legal representative of the

Estate of William J. Casey is named as a

defendant. Mr. Casey was the Director of

the Central Intelligence Agency and a member

of the National Security Council when the

U.S. air strike on Libya was planned,

approved, ordered, implemented and carried

out. He is being sued in his representative

Capacity for liabilities incurred by Mr.

A-44

Casey individually and in his official

capacity.

17. -John Doe, Ruth Roe et al. are

defendants whose identities and precise

roles have yet to be ascertained. They are

individuals who personally planned,

approved, ordered, pe or carried

out the air strike on Libya, including

without limitation, officers who flew in

command of the Air Force and Navy units that

dropped the bombs on Libya.

18... The defendants who are present or

former civilian or military officers and

officials of the United States are sometimes

referred to in this complaint as the federal

defendants.

19. On the night and early morning of

April 14-15, 1986, aircraft of the United

States Air Force and Navy conducted a

surprise, clandestine bombing attack on the

nation of Libya.

A-45

20. The aircraft were launched from

U.S. bases in Great Britain and from U.S.

aircraft carriers in the Mediterranean Sea.

21. Upon information and belief,

defendant Thatcher gave the United States

permission to use American bases in the

United Kingdom to launch the attack on Libya

knowing that the attack was illegal and

would necessarily kill civilians.

22. Upon information and belief, other

nations were requested by the United States

to participate or grant permission in some

way for the attack on Libya. These requests

were refused. For example, France refused

permission for the aircraft launched from

the United Kingdom to fly over its

territory, which would iiave been the direct

route from the United Kingdom to Libya.

This greatly increased the difficulty of the

flight and the risks of heavy civilian

casualties in the bombing as defendants well

knew.

A-46

23. The United States aircraft dropped

bombs on and near the Libyan capital,

Tripoli, the city of Benghazi, and the air

base at Benina.

24. Much damage was done to civilian

areas. Many civilian men, women and

children were killed or injured, including

plaintiffs in this action and their

decedents. Much civilian property was

damaged or destroyed.

25. Several embassies were damaged.

26. Upon information and belief, the

decision to have U.S. aircraft bomb Libya

was made by President Reagan at the

California White House on or about April 5,

1986.

27. Upon information and belief, plans

for the attack on Libya were developed by

the Joint Chiefs of Staff, the National

Security Council, the Office of the White

House and other agencies. The federal

defendants met and communicated with one

A-47

another and otherwise participated directly

in planning, approving, ordering,

implementing or carrying out the air strike

upon Libya described in this complaint.

This was done by the federal defendants in

the District of Columbia, California,

Virginia and elsewhere within and outside

the United States.

28. Upon information and belief, the

primary purpose, or a primary purpose of the

bombing of Libya described in this

complaint which the federal defendants

shared, or knew or should have Known, was to

kill the head of state of Libya, Col.

Muammar Qaddafi, and to terrorize Libyans by

inflicting injury upon the civilian

population in order to undermine support for

the government of Col. Qaddafi and to cause

or encourage his overthrow. This purpose,

which the federal defendants sought to

conceal and deny, was illegal and for this

reason, among others, the actions of the

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federal defendants in planning, approving,

ordering, implementing or carrying out the

air strike upon Libya described in this

complaint, whether or not done within the

scope of their employment, were unauthorized

and contrary to statutory and constitutional

prescription. In their actions taken in

their official capacities the federal

defendants acted under color of law but

beyond or contrary to their lawful authority

and in an unconstitutional manner.

29. At the time of the bombing of

Libya described in this complaint no state

of war existed between the United States and

Libya. No law of the United States and no

international law authorized, justified or

permitted United States aircraft as they did

to violate the territorial integrity and air

space of Libya by entering it for military

purposes, nor to drop bombs upon Libya for

any purpose, nor to drop bombs that hit and

injured civilians and destroyed civilian

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property, nor to drop bombs directed at the

head of state and civilian areas for the

purpose of killing the head of state and

killing and injuring civilians.

30. -n information and belief, under

all of the circumstances pertinent to the

bombing of Libya described in this

complaint, including without limitation, the

size and technology of the ordnance used, :

the high speed and low altitude of the

aircraft and other conditions affecting

delivery of the bombs, and the concentration

of civilians in and around Tripoli, Benghazi

and Benina Air Base, it was inescapable that

Civilian casualties and damages to civilian

property would result from the attack.

Defendants knew or should have known of this

certainty of harm.

31. Defendants and others entered

into and carried out a conspiracy, aided and

abetted one another and others, and acted

jointly and in concert to bring about the

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illegal U.S. bombing of Libya described in

the complaint. Their actions in so doing,

in planning, approving, ordering,

implementing and carrying out the air

strike, were done in the District of

Columbia, California, Virginia and elsewhere

in the United States, as well as in Libya,

the United Kingdom and elsewhere outside the

United States. These actions were a

proximate cause of the deaths, injuries and

property damage in Libya for which

plaintiffs are seeking to recover their

damages in this action. Each defendant is

directly liable for his own illegal,

tortious acts and is vicariously liable for

the illegal, tortious acts of the other

defendants and third persons with whom he

conspired, or acted in concert or aided and

abetted. All defendants are liable for the

deaths, injuries and property damace in

Libya for which plaintiffs are seeking to

recover their damages in this action.

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FIRST CLAIM

32. Plaintiffs incorporate by

reference the preceding allegations of this

complaint.

33. Defendants' actions as aforesaid

constitute torts cognizable under 28 U.S.C.

1350 or 28 U.S.C. 1331 or both in violation

of the law of nations and treaties of the

United States as established by the

authorities described in paragraph 3 and 4

of this complaint and other pertinent

treaties, declarations, documents, and

practices constituting settled principles of

the customary international law of human

rights, the law of nations and treaties of

the United States.

SECOND CLAIM

34. Plaintiffs incorporate by

reference the preceding allegations of this

complaint.

35. Defendants' actions as aforesaid

constitute torts cognizable under 28 U.S.C.

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1350 or 28 U.S.C. 1331 or both in violation

of the Constitution, laws and treaties of

the United States, as evidenced by the

authorities described in paragraphs 3 and 4

of this complaint, and other relevant

provisions of the Constitution, laws and

treaties of the United States.

IR M

36. Plaintiffs incorporate by

reference the preceding allegations of this

complaint.

37. Defendants' actions as aforesaid

constitute violations of the tort law of

Libya, the District of Columbia, California,

Virginia and other States.

FOURTH CLAIM

38. Plaintiffs incorporate by

reference the preceding allegations of this

complaint.

39. Defendants' actions as aforesaid

constitute violations of international law

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as described in paragraph 3 of the

complaint.

FIFTH CLAIM

40. Plaintiffs incorporate by

reference the preceding allegations of this

complaint.

41. Actions of the federal defendants

are aforesaid done in California, Virginia,

the District of Columbia and elsewhere in

the United States within the scope of their

federal employment were a proximate cause

of the injuries sustained by plaintiffs and

their decedents in the U.S. bombing of Libya

described in the complaint for which the

United States is liable under the Federal

Tort Claims Act.

SIXTH CLAIM

42. Plaintiffs incorporate by

reference the preceding allegations of this

complaint.

43. Upon information and belief, it is

being claimed on behalf of the United States

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that American bombs erroneously and

inadvertently hit civilian areas in the raid

on Libya on April 14-15, 1986. The Pentagon

made such an announcemént in May 1986.

Given these statements in the nature of

admissions, it was clear error and a

violation of a mandatory duty for the United

States Air Force to deny the administrative

claims of plaintiffs which it considered

under the provisions of the Foreign Claims

Act, 10 U.S.C. 2734. The regulations of the

Air Force for claims under the Foreign

Claims Act flatly state, 32 CFR 842.64(m):

"...Pay claims arising from accident or

malfunction of aircraft operations,

including airborne ordnance, occurring while

preparing for, going to, or returning from a

combat mission."

44. Plaintiffs are therefore entitled

to an order in the nature of mandamus

directing the federal defendants now in

office to cause the Air Force to vacate its

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denial of plaintiffs' claim and to

reconsider and pay the claims.

SEVENTH CLAIM

45. Plaintiffs incoporate by reference

the preceding allegation of this complaint.

46. The actions of the federal

defendants as aforesaid constitute a pattern

ef racketerring activity within the meaning

of Title IX of the Organized Crime Control

Act of 1970, Racketeer Influenced and

Corrupt Organizations ("RICO"), in that

defendants have committed at least two acts

of racketeering activity enumerated in 18

U.S.C. 1961(1) (A) ana (B) in the course of

the concerted action and conspiracy against

Libya, its Head of State and its people

described in this complaint, and in previous

overt and covert hostile attacks and other

illegal and criminal actions by the federal

defendants, or some of them, against Libya,

its Head of State and its people.

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47. Each of the federal defendants

committed at least two such racketeering

acts, or aided and abetted in their

commission or is otherwise vicariously

responsible for their commission.

48. The concerted action and

conspiracy against Libya, its Head of State

and its people described in this complaint

is an enterprise within the meaning of 18

U.S.C. 1961(4), affecting interstate and

foreign commerce, which also includes the

association in fact of the federal

defendants and others in planning,

approving, ordering implementing and

carrying out previous overt and covert

hostile attacks and other illegal and

criminal actions against Libya, its Head of

State and its people.

49. The federal defendants as persons

employed by and associated with the

aforesaid enterprise conducted or

participated, directly or indirectly, in the

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conduct of the enterprise's affairs through

a pattern of racketeering activity and

conspired to do so in violation of 18 U.S.C.

1962(c) and (da).

50. The federal defendants' violations

of 18 U.S.C. 1962(c) and (d) proximately

causes injuries to the business and property

of plaintiffs and their decedents.

WHEREFORE plaintiffs pray for judgment

against defendants for compensatory and

punitive damages in the amounts the proof

shall establish, trebled for plaintiffs'

claims under RICO, except that no punitive

damages are sought against the United States

under the Federal Tort Claims Act, together

with reasonable attorneys fees, interest,

costs and disbursements, and alternatively

for the order described in the complaint

causing the Air Force to vacate its denial

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and to reconsider and pay plaintiffs'

administrative claims.

Dated: New York, N.Y.

April 12, 1988

s/Ramsey Clark

Ramsey Clark, DC Bar #073833

Suite 400

21 DuPont Circle, N.W.

Washington, D.C. 20036

Ramsey Clark

Lawrence W. Schilling

“ Peter B. Meadow

36 E. 12th Street

New York, N.Y. 10003

(212) 475-3232

Attorneys for Plaintiffs

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.