# Petition for Writ of Certiorari — Clark v. Thatcher

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 956

## Text

Supreme Court, us
' ae |

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

i

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

ii
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

iv
exercise its own discretion i}
the Rule il sanctions or make

required by Rule 11.

Vv

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.

vi

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

ix

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

60

ao

39

33,56

63

Daeat

48

61

x

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,

>

46

60

19

46

ae

44

45

62

ao

Murray Vv.

xi

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)

58

—

53

40

60

61

47

45

60

36

58

10

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

Nh

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

4

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

6
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

7
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

a

8
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

9
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:

10
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

11
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

12
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

13
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

i

14
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

so
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

. =

16
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

.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

47
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

48
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

49

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

50
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."

51

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.

52
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.

53
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.

be

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

56

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

57

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

|

58
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

59
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

60
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.

61

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

62

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

63

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

64

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

65
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

->
Ss
°

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)

we

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

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. @

I.

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

A-48

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

A-49

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

A-50

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.

A-51

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.

A-52

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

i

A-53

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

A-54

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

A-55

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.

A-56

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

A-57

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

A-58

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1353%3A1. Public record. Not legal advice.