Petition for Writ of Certiorari — Socialist People's Libyan Arab Jamahiriya v. Rein

Supreme Court, U.S,

cas he oe

No. 98- |

PR144.9 wiry » 1999

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1998

|

SOCIALIST PEOPLE’S LIBYAN ARAB JAMAHIRIYA, ef al.,

Petitioners,

V.

DENICE H. REIN, et al.,

Respondents,

and

UNITED STATES OF AMERICA,

Intervenor.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT C. MIRONE

Counsel of Record for Petitioners

LAW OFFICES OF

ROBERT C. MIRONE, P.C.

630 Third Avenue, 21st Floor

New York, New York 10017

(212) 949-0550

BRUNO A. RISTAU

LAW OFFICES OF BRUNO A. RISTAU

1701 Pennsylvania Ave., N.W.

Suite 300

Washington, D.C. 20006

(202) 879-2655

DAVID B. MELTZ

Of Counsel 1422 W. Peachtree St., N.W.

JEAN-LUC MARX Suite 320

72, Boulv. De Courcelles Atlanta, Georgia 30309

F-75017 Paris, France (404) 724-0712

bh

tJ

QUESTIONS PRESENTED FOR REVIEW

Whether the court of appeals erred in sustaining the

constitutionality of an amendment to the Foreign

Sovereign Immunities Act that confers subject-matter

jurisdiction in damage suits by U.S. nationals for

exterritorial torts committed by states that have been

designated by the Executive as “state sponsors of

terrorism.”

Whether the court of appeals erred in declining to

review, for lack of appellate jurisdiction, the district

court’s ruling that it had personal jurisdiction over the

petitioners.

Whether the court of appeals erred in declining to review

prior to trial the district court’s ruling that in this

proceeding it had pendent jurisdiction to hear claims by

aliens against Libya under the Alien Tort Act.

Rule 14(1)(b) Statement

The petitioners are: the Socialist People’s Libyan Arab

Jamahiriya, an independent sovereign state that is recognized

by the Government of the United States; the Libyan External

Security Organization, a department of the Libyan

Government; Libyan Arab Airlines, a Libyan corporation, a

majority of whose stock is owned by the Libyan Government.

The names of the 128 respondents are listed in the caption

of the court of appeals’ decision (App. 1a - 8a).

Rule 29(4)(b) Statement

The United States intervened as a party in the court of

appeals pursuant to 28 U.S.C. §§517 and 2403 to defend the

constitutionality of the 1996 Amendment to the Foreign

Sovereign Immunities Act, 28 U.S.C. §1605(a)(7).

Copies of this petition have been served on the Solicitor

General of the United States, Room 5614, Department of

Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C.

20530-0001.

TABLE OF CONTENTS

Page

I 0 yo l

CE eee a ye l

CONSTITUTIONAL PROVISION AND STATUTES

IS RG 2

ener TNECASE UU 6

ee 6

B. The Factual Moy ee 7

C. The Proceedings Below.............__. 10

REASONS FOR GRANTING THE Wes de eu 13

I. Congress’ Unprecedented Delegation To

Executive Officials Of The Control Over

Federal Court Jurisdiction In Suits Against

Foreign States Should Be Reviewed By This

SESS Ae neta On rs ea 13

II. The Court of Appeals Erred In Holding That

The Collateral Order Doctrine _ Bars

Interlocutory Review Of The Issue Of Personal

sat ey og ER RO ae ea ee a 18

Ill. The Court of Appeals Erred In Dismissing for

Want of Appellate Jurisdiction Libya’s

Challenge To The Alien Plaintiffs’ Claims For

Relief Under the Alien Tort Act . Mat oi ee a ee

co Vota an yes atc a le aoe nae

iv

TABLE OF AUTHORITIES

Page(s)

CASES:

Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (S.D.

Phe ROR RE kg eek Oi ES a ee a

Anderson v. Socialist Peoples’ Libyan Arab Jamahiriya,

Case No. 98CV7533 (ICP) G.D.N.Y). ooo 4

Argentine Republic v. Amerada Hess Shipping Corp.,

ASU SAUNT 22,

Cicippio v. Islamic Republic of Iran, 18 F.Supp. 2d 62

BD EPA. BIO co a gisele es ERO ee ee ee

Compania Mexicana de Aviacion, S.A. v. United States

Dist. Court for the Cent.Dist. Of Cal., 859 F.2d

ESOC as SOO PO ea ee eee

Cummock v. Libya, Case No. 96-CV-2993 (E.D.N.Y.) .

Federal Ins. Co. v. Richard I. Rubin & Co., Inc., 12

F.3d, 1270(3d Cir. 1993), cert. denied, 511 U.S.

S507 CE ks eis ee a a eS ee

Flatow v. Islamic Republic of Iran, 999 F.Supp. 1

CEP Ee se SR, ie oa ee Pre ee a

Gould, Inc., v. Pechiney Ugine Kuhlmann, 853 F.2d 445

eg | SRR Ee ay dice Sinatra eeteas a huniee nae

In re Air Disaster in Lockerbie, Scot. 733 F.Supp. 547

(1990), aff'd, 928 F.2d 1267 (2d Cir.), cert. denied,

ME Siesic Dene MOREE Fhe aca ea anaemia

23

16

20

20

16

20

V

Table of Authorities (continued)

Page(s)

In re Air Disaster at Lockerbie, Scot., 37 F.3d 803 (2d

Cir. 1994), cert. denied sub nom. Pan American

World Airways, Inc. y. Pagnucco, 513 U.S.1126

a hl et RI NRE Be ein ar ele os

Jungquist v. Sheikh Sultan Bin Khalifa Al Nayhan, 115

Mr ck, hd) mn oouraia ata ame at ata a

Pescatore v. Pan American World Airways, Inc., 97 F.3d

PR RMN Fn CRY eee te”

Princz v. Federal Republic of Germany, 26 F.3d 1166

(D.C. Cir. 1994). cert.denied, 115 S.Ct. 923

i) MOP ae hurtin ee ee

Rendall-Speranza vy. Nassim, 107 F.3d 913 (D.C. C ir.

idl gene ne eee ae

Rein v. Socialist People’s Libyan Arab Jamahiriya, No.

96-CV-3803 Ce Wa ae er ees

Rein v. Socialist People’s Libyan Arab Jamahiriya, 995

F.Supp. 325 (E.D.N -Y.), aff'd in part and dismissed

OPO8, TOE UTA oo ee

Rush-Presbyterian-St. Luke S Ctr. v. Hellenic Republic,

877 F.2d 574 (7th Cir. ak na’ Aa ger er ee Rey Um

Smith v. Socialist People’s Libyan Arab Jamahiriya, 101

F.3d 239 (1996), cert. denied, U.S. 117

RAL SR Ne se gee ee

Stena Rederi AB y. Comision de Contratos del Comite.

923 F.2d 380 eos AMEE cc ey re

20

20

20

vi

Table of Authorities (continued)

Page(s)

Swint v. Chambers County Comm’n, 514 U.S. 35

COP Sas. Pea arpa bitte 13, 18, 19

Verlinden, B.V. v. Central Bank of Nigeria, 461 U.S.

WCGEED 3. Sos vb oa Mike eo ae eee 15

CONSTITUTIONAL PROVISIONS AND STATUTES:

Article III of the Constitution of the U.S. .......... 11

Se Ar SRT GONG © 5s Cae ee ek 10

ee Se CO I ee he ees ak oes Ba 10

Fifth Amendment’s Due Process Clause ........... 10

Alien Tort Act, 76 U.S.C. $1350 ........ L, 10, 28.

Antiterrorism Act, 18 U.S.C. §2334(b) ........... 10

Export Administration Act of 1979, Sec. 6(j) ....... 7

Foreign Sovereign Immunities Act:

Fe DEP KD SHRED E Ye 2a i?

ee AEA a RE 8 8 hae Ce Pee ee 19

aE. SORES eo ook ee eR ek kk . passim

SOCUIEE VICtEN PIOUCIION AGE 2. ke eee eee 85 10

Ea AEE 54 v2 AA Ae OE CRED Jee 1

PERE APOE A ee pee eee eae 1, 10

Sis SEITE eR Ce ERS Oe 1, 10

i Te |

Vii

Table of Authorities (continued)

Page(s)

MISCELLANEOUS:

Convention for the Suppression of Unlawful Acts Against

the Safety of Civil Aviation, done at Montreal.

September 23, 2971, 24 U.S.T. 564, T.I.A.S. No.

TUS iy. alg ge OE ee 4

H.R. Rep. No. 94-1487, 94th Cong., 2d Sess. (1976) . . 20

x r *

ee TSN ee ee OR ee) ee

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1998

SOCIALIST PEOPLE’S LIBYAN ARAB JAMAHIRIYA, et al..

Petitioners.

Vv.

DENICE H. REIN, ef al.,

Respondents,

and

UNITED STATES OF AMERICA,

Intervenor.

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Second Circuit (App. la - 36a) is reported at 162 F.3d 748

(1998). The opinion of the United States District Court for

the Eastern District of New York (App. 37a - 50a) is reported

at 995 F.Supp. 325 (1998).

JURISDICTION

The judgment of the court of appeals was entered on

December 15, 1998. This Court’s jurisdiction is invoked

under 28 U.S.C. §1254(1). _ The jurisdiction of the district

court was invoked under the Foreign Sovereign Immunities

Act, 28 U.S.C. §§1330, 1605(a)(7): under federal question

jurisdiction, 28 U.S.C. §1331; diversity jurisdiction, 28

U.S.C. §1332; and under the Alien Tort Act. 28 U.S.C.

§1350.

9

CONSTITUTIONAL PROVISION

AND STATUTES INVOLVED

1. The Fifth Amendment to the Constitution of the

United States of America provides in pertinent part:

No person shall be . . . deprived of . . . liberty, or

property, without due process of law;

2. The 1996 Amendment to the Foreign Sovereign

Immunities Act of 1976 (Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. 104-132, Title II, §221(a), Apr.

24, 1996, 110 Stat. at 1241), codified in 28 U.S.C.

§1605(a)(7), reads in relevant part as follows:

[§1605. General exception to the jurisdictional

immunity of a foreign state

(a) a foreign state shall not be immune from the

jurisdiction of courts of the United States or of the

States in any case -]

(7) not otherwise covered by paragraph (2), in

which money damages are sought against a

foreign state for personal injury or death that

was caused by an act of torture, extrajudicial

killing, aircraft sabotage, hostage taking, or the

provision of material support or resources (as

defined in section 2339A of title 18) for such an

act if such act or provision of material support

is engaged in by an official, employee, or agent

of such foreign state while acting within the

scope of his or her office, employment, or

agency, except that the court shall decline to

hear a claim under this paragraph —

(A) if the foreign state was not designated as a

state sponsor of terrorism under section 6(j) of

)

3

the Export Administration Act of 1979 (50

U.S.C. App. 2405(j)) or section 620A of the

Foreign Assistance Act of 1961 (22 U-S.C.

2371) at the time the act occurred, unless later |

so designated as a result of such act; and

(B) even if the foreign state is or was so

designated, if -

(i) the act occurred in the foreign state

against which the claim has been brought

and the claimant has not afforded the

foreign state a reasonable opportunity to

arbitrate the claim in accordance with

accepted international rules of arbitration;

or

(11) neither the claimant nor the victim

was a national of the United States (as that

term is defined in section 101(a)(22) of the

Immigration and Nationality Act) when the

act upon which the claim is based occurred.

* * *

(¢) For purposes of paragraph (7) of subsection (a)-

(1) the terms “torture” and “extrajudicial

killing” have the meaning given those terms in

section 3 of the Torture Victim Protection Act

of 1991;

(2) the term “hostage taking” has the

meaning given that term in Article 1 of the

International Convention Against the Taking of

Hostages; and

4

(3) the term “aircraft sabotage” has the

meaning given that term in Article 1 of the

Convention for the Suppression of Unlawful

Acts Against the Safety of Civil Aviation.’

(f) No action shall be maintained under subsection

(a)(7) unless the action is commenced not later than

10 years after the date on which the cause of action

arose. All principles of equitable tolling, including

the period during which the foreign state was

immune from suit, shall apply in calculating this

limitation period.

Article 1 of the Convention reads as follows:

1. Any person commits an offense if he unlawfully and

intentionally:

(a) performs an act of violence against a person on board

an aircraft in flight if that act is likely to endanger the

safety of that aircraft; or

(b) destroys an aircraft in service or causes damage to

such an aircraft which renders it incapable of flight or

which is likely to endanger its safety in flight; or

(c) places or causes to be placed on an aircraft in service,

by any means whatsoever, a device or substance which is

likely to destroy that aircraft, or to cause damage to it

which renders it incapable of flight, or to cause damage

to it which is likely to endanger its safety in flight; or

(d) destroys or damages air navigation facilities or

interferes with their operation, if any such act is likely to

endanger the safety of aircraft in flight; or

(e) communicates information which he knows to be false,

thereby endangering the safety of an aircraft in flight.

Convention for the Suppression of Unlawful Acts Against the Safety of

Civil Aviation (done at Montreal, September 23, 2971), 24 U.S.T. 564,

T.I.A.S. No. 7570.

5

3. Sec. 6(j) of the Export Administration Act of 1979,

50 U.S.C. App. §2405(j), reads in pertinent part as follows:

4) Countries supporting international terrorism

(1) A validated license shall be required for the

export of goods or technology to a country if the

Secretary of State has made the following

determinations:

(A) The government of such country has

repeatedly provided support for acts of

international terrorism.

(B) The export of such goods or technology

could make a significant contribution to the

military potential of such country, including its

military logistics capability, or could enhance

the ability of such country to support acts of

international terrorism.

(2) The Secretary and the Secretary of State shall

notify the Committee on Foreign Affairs of the

House of Representatives and the Committee on

Banking, Housing, and Urban Affairs and the

Committee on Foreign Relations of the Senate at

least 30 days before issuing any validated license

required by paragraph (1).

(3) Each determination of the Secretary of State

under paragraph (1)(A), including each determination

in effect on December 12, 1989, shall be published in

the Federal Register.

6

STATEMENT OF THE CASE

A. Introduction

This case arises out of the destruction of an American

airliner (“Pan Am flight 103") over Lockerbie, Scotland, on

December 21, 1988. The destruction caused the death of all

243 passengers and 16 crew members, as well as 11 persons

on the ground. In 1989, survivors and representatives of the

decedents brought wrongful death actions against the air

carrier, Pan American World Airways, Inc., in several district

courts. These suits were consolidated in the Eastern District

of New York and have occupied the district court and the

Second Circuit for the past decade.’

In 1994, numerous survivors and representatives of the

victims of the Lockerbie disaster instituted suit in several

districts under the Foreign Sovereign Immunities Act (“FSIA”)

against the Libyan government, Libya’s intelligence service,

Libya’s national commercial airline (collectively “Libya”), and

two Libyan nationals. The Second Circuit affirmed the

district court’s dismissals of these suits for lack of jurisdiction

under the FSIA. Smith v. Socialist People’s Libyan Arab

Jamahirtya, 101 F.3d 239 (1996), cert. denied, US. __,

117 S.Ct. 1569 (1997).

In 1996, during the pendency of the Smith appeal,

Congress enacted the amendment to the FSIA in issue here

See, In re Air Disaster in Lockerbie, Scot. 733 F.Supp. 547

(1990), aff'd, 928 F.2d 1267 (2d Cir.), cert. denied, 502 U.S. 920 (1991);

In re Air Disaster at Lockerbie, Scot., 37 F.3d 803 (2d Cir. 1994), cert.

denied, sub nom. Pan American World Airways, Inc. v. Pagnucco, 513

U.S. 1126 (1995); Pescatore v. Pan American World Airways, Inc., 97

F.3d 1 (2d Cir. 1996).

. The two individuals have not been served and have not entered

appearances. (App. 40a n.1, 995 F.Supp at 328 n.1).

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(“FSIA Amendment” or “§1605(a)(7),” reproduced, supra at

pp. 2-4). The amendment permits suits by U.S. nationals

against selected foreign states for damages for personal injury

or death caused by an act of torture, summary execution,

aircraft sabotage, hostage taking or provision of support or

resources for such an act committed outside of the United

States. Such suits may be brought only against foreign

sovereigns designated by the Secretary of State as “state

sponsors of terrorism.” Libya is said to have been designated

by the Secretary of State under Section 6(j) of the Export

Administration Act of 1979 as a “terrorist-supporting” state’.

Following the enactment of the amendment, the Smith

plaintiffs and scores of other claimants filed new multi-

plaintiff suits against Libya under the FSIA Amendment in

several districts, and these suits were once again consolidated

in the Eastern District of New York. We summarize below

the allegations in the two lead cases.

B. The Factual Allegations

The amended complaint in Rein v. Socialist People’s

Libyan Arab Jamahiriya, No. 96-CV-3803, E.D.N.Y., (J.A.

4

In the court below, the United States identified the statutory

mandated designation by the Secretary of State as 15 C.F.R.

§750.4(b)(6)(i) and stated that Libya was designated as a terrorist state

“before the attack on Pan Am Flight 103.” Brief for the United States as

Intervenor, 2d Cir., No. 98-7467 at 5. The cited C.F.R. section,

however, lists only the seven countries said to have been designated as of

January 1998; it does not identify when and by whom the designation was

made, nor does it give a Federal Register citation as required by Sec.

6(j)(3) of the Export Administration Act, 50 U.S.C. App.

Our search of the Federal Register since the enactment of the Export

Administration Act of 1979 has failed to disclose an express determination

by the Secretary of State pursuant to Sec. 6(j) of the Act.

8

at A24-A43°) lists in its caption ninety-nine plaintiffs,

identified as survivors, executors, administrators or personal

representatives of the estates of persons killed while

passengers aboard PanAm 103. Libya and its agencies are

once again named as defendants. The majority of the plaintiffs

and their decedents are United States nationals; an as yet

unidentified number of plaintiffs and their decedents are

aliens.

The Rein complaint alleges that in the early evening of

December 21, 1988, Claimants’ decedents were passengers on

board PanAm Flight 103 ("PanAm 103") on a regularly

scheduled flight from London to New York. Shortly after

7:00 p.m., an explosion occurred in the forward baggage

compartment of the aircraft causing it to disintegrate in mid-

air and to crash to the ground at Lockerbie, Scotland, killing

all 243 passengers, 189 of whom were United States

nationals, and 16 crew members.

The complaint asserts that the victims’ deaths were

caused by Libya's willful and deliberate acts of extrajudicial

killing and aircraft sabotage and that the explosive device that

caused the destruction of the aircraft was purposely placed on

hoard PanAm 103 by individuals in the service, or acting on

behalf, of Libya. Since Libya’s agents and officials provided

material, support and resources to the individuals responsible

for the destruction of the plane, Libya is vicariously

responsible for its co-defendants’ acts because Libya

controlled and acted in concert with them.

> “J.A.” refers to the Joint Appendix filed by the parties in the

Second Circuit, copies of which have been lodged with the Clerk of this

Court.

9

The complaint further alleges that Libya’s intelligence

service is an independent agency of Libya’ whose agents and

employees were among those directly responsible for the

destruction of PanAm 103. The service cooperated with the

perpetrators of the crime by supplying them money, labor,

intelligence information, equipment and supplies.

Libyan Arab Airlines, too, is claimed to have provided

material support and resources to the persons responsible for

the destruction of Pan Am 103. The airline's employees and

agents provided transportation and materials to the

perpetrators, furnished storage facilities, baggage documents,

access to airport facilities and baggage handling systems,

knowing that such acts would assist the perpetrators in

carrying out the destruction of Pan Am 103.

The Rein complaint asserts three claims for relief:

damages for wrongful death for each claimant and each

decedent's estate in the amount of $20-million; survival

damages of $1-million for the conscious pain and suffering

and fear of impending death suffered by each of the decedents

prior to their deaths; and punitive damages of $2-billion

against the security organization and the Libyan airline.

The complaint in the second lead action, Cummock vy.

Libya, Case No. 96-CV-2993 (E.D.N.Y.), alleges the same

core facts regarding the destruction of Pan Am 103 (Cummock

Ist amd. compl. J.A. at A67-A91). The jurisdictional

allegations and the relief sought in the Cummock complaint

differ considerably from those in the Rein complaint. Thus,

the Cummock plaintiffs invoke the district court’s jurisdiction

under the FSIA Amendment, 28 U.S.C. §1330(a), 1605(a)(7),

* Libya informed the district court that the Libyan intelligence

service is an organ of the Government of Libya and not a separate legal

entity suable in its own name.

10

under federal question 28 U.S.C. §1331, diversity 28 U.S.C.

§1332, Alien Tort Act jurisdiction, 28 U.S.C. §1350, and

under the civil remedies provision of the Antiterrorism Act,

18 U.S.C. §2334(b).

Each of the Cummock claimants seeks damages against

the petitioners jointly and severally in the amount of $20-

million for wrongful death under the Antiterrorism Act and

the Torture Victim Protection Act; for battery in violation of

international laws and treaties; for intentional infliction of

emotional distress on the victims and on the survivors of the

plane crash; for violation of international law and treaties;

$5-million each for loss of consortium on behalf of the

surviving spouses; punitive damages of $1-billion against the

Libyan Externai Security Organization and Libyan Arab

Airlines; and enforcement of a guaranty said to have been

given by Libya to the United Nations to pay any civil

judgments that may be entered against the two individual

defendants in the future.’

C. The Proceedings Below

In July 1997, Libya moved in the district court to dismiss

the suits. Libya’s motion challenged at the outset the

constitutionality of the FSI[A Amendment on the ground that

the assertion of subject-matter jurisdiction against it violated

the principle of separation of powers as well as the Due

Process, Bill of Attainder and Ex Post Facto Clauses. Libya

also challenged the district court’s personal jurisdiction over

it due to lack of the constitutionally mandated minimum

contacts. Finally, Libya challenged the district court’s

subject-matter jurisdiction to hear the alien plaintiffs’ claims

The Cummock complaint also alleges that the suit is brought on

behalf of a class estimated in excess of five hundred members. The

district court declined certification of the class.

|

1]

under the Alien Tort Act because the 1996 Amendment

expressly bars suit by aliens, and also because this Court had

expressly ruled that the Act does not permit suit against

foreign states.

The United States filed a Statement of Interest supporting

the constitutionality of §1605(a)(7) and the propriety of the

assertion of personal jurisdiction over Libya.®

The district court denied Libya’s motion in its entirety.

It held that Section 1605(a)(7)’s denial of immunity to states

designated by the Secretary of State as “state sponsors of

terrorism” was constitutional because the Amendment itself

and the Secretary’s designations were not jurisdictional. In

the court’s view, subject-matter jurisdiction was based

directly on Art. II of the Constitution, and the Secretary’s

determination merely revived the State Department’s

traditional practice of advising the courts that a defendant

state’s claim to sovereign immunity had been denied in a

given case. (App. 4la, 995 F.Supp. at 328). The court

further held that the FSIA Amendment conferred upon the

court discretionary authority to hear cases against states

designated as sponsors of terrorism, and that in the instant

case he would exercise that discretion. (App. 42a, 995

F.Supp. at 328).

The district court next ruled that under the circumstances

of these cases the assertion of personal jurisdiction over Libya

was proper and that under the traditional minimum contacts

analysis the relevant inquiry was whether Libya had “fair

warning” that it may be subject to the jurisdiction of the courts

of the United States. (App. 45a, 995 F.Supp. 330). Here, the

: The United States did not comment on whether the alien

plaintiffs could assert claims against Libya under the Alien Tort Act on the

theory of pendent personal jurisdiction.

12

plaintiffs claim that Libya aimed its terrorist acts at the United

States. The claims arise out of the destruction of an airplane

manufactured and registered in the United States, while en

route to the United States, with 189 U.S. nationals aboard.

Under these circumstances, Libya should have reasonably

anticipated that it would be haled into an American court to

respond in damages for its tortious acts. (App. 45a, 995

F.Supp. at 330).

The district court next rejected Libya’s claim that the

FSIA Amendment offended the Ex Post Facto Clause. (App.

48a, 995 F.Supp at 331). In the court’s view, that Clause

protects only individuals from arbitrary penal sanctions that

work unfairly to deprive them of a liberty interest, and is

inapplicable to a foreign state’s immunity from suit.

Moreover, no restrictive penal sanctions are imposed on a

foreign state when the United States denies to it sovereign

immunity from suit. A retroactive imposition of punitive

damages, as permitted by the FSIA, was not before the court.

(App. 48a, 995 F.Supp. at 331).

The district court finally concluded that because it had

subject-matter and personal jurisdiction over Libya, under the

FSIA Amendment, it had pendent jurisdiction over all

remaining claims. Among the “remaining claims” are the

alien plaintiffs’ claims against Libya under the Alien Tort Act

for violation of international law. (App. 49a, 995 F.Supp. at

331).

Libya filed a timely appeal, challenging the district

court’s rulings on subject-matter and personal jurisdiction

under the FSIA Amendment, and its subject-matter

jurisdiction regarding the alien claimants’ Alien Tort Act

claims.

)

13

The Second Circuit affirmed the district court’s ruling

upholding the constitutionality of the FSIA Amendment and

its competence to hear these suits, although it disapproved the

lower court’s analysis of the Amendment. (App. 31a-33a,

162 F.3d at 762-63). The appeals court dismissed for lack of

appellate jurisdiction all other aspects of Libya’s appeal on the

authority of Swint v. Chambers County Comm’n, 514 U.S. 35

(1995). (App. 21a-22a, 162 F.3d at 758). In the court’s

view, Libya’s challenge of the district court’s personal

jurisdiction over it raised an issue that was not closely

intertwined with the district court’s subject-matter jurisdiction

and will have to await review until after a trial on the merits.

(App. 22a-27a, 162 F.3d at 759-61). Similarly, Libya’s

liability under the Alien Tort Act and punitive damages raised

issues that were not within the “collateral order” exception to

the final order rule. (App. 27a-30a, 162 F.3d at 761-62).

REASONS FOR GRANTING THE WRIT

I. Congress’ Unprecedented Delegation To Executive

Officials Of The Power To Create Federal Court

Jurisdiction In Suits Against Foreign States

Should Be Reviewed By This Court

The 1996 Amendment seeks to confer subject-matter

jurisdiction on federal courts to hear claims against selected

foreign states and their agencies for specified international

delinquencies committed against nationals of the United States

abroad. The Executive Branch is to designate as “state

sponsors of terrorism” those states that are denied immunity

from suit for causing tortious injury or death. The

Amendment is retroactive and requires that suit be brought

within ten years after the date on which the claim arose. Any

period during which the foreign state was immune from suit

tolls the running of the limitation period. Libya is one of

seven states so designated.

14

It is patent that the Executive’s political decision branding

a foreign state a sponsor of terrorism forms the core of the

district courts’ subject-matter jurisdiction under the 1996

Amendment.

Libya challenged the FSIA Amendment on the grounds

that it violated the doctrine of separation of powers and the

principle of non-delegation of legislative powers. No one

questions the prerogative of the political branches to label a

foreign state with a pejorative in world fora. No one disputes

the political branch’s authority to impose trade or other

sanctions on selected states either unilaterally or in concert

with other states. The Amendment, however, goes farther.

It politicizes the judiciary in the interest of foreign policy and

assigns to the Executive the power selectively to determine the

subject-matter jurisdiction of federal courts. Such action is

unprecedented; never since the enactment of the First

Judiciary Act has Congress attempted to establish the

competence of lower federal courts based on purely political

and unchallengeable decisions of the Executive Branch.

The district court rejected Libya’s challenge ruling

Libya’s argument was based on a “false premise.” In the

district court’s view, subject matter jurisdiction of federal

courts is not bestowed by Congress or the Executive but

directly by Article III of the Constitution. (App. 41a, 995

F.Supp. at 328). The district court inexplicably reasoned that

in passing the FSIA Amendment Congress conferred

discretion on the district courts as to when they should hear

cases against foreign states designated as “terrorist.” In the

court’s view, the Amendment “leaves open, i.e., in the

discretion of the Court, the power to hear claims against those

nations so designated.” (App.42a, 995 F.Supp. at 328).

The court of appeals rejected this view of the effect of the

Amendment on the jurisdiction of federal courts. (App. 32a

15

n.12, 162 F.3d at 763 n.12). The court correctly noted that

Verlinden, B.V. v. Central Bank of Nigeria, 461 U.S. 480

(1983), established firmly that sovereign immunity under the

FSIA is a jurisdictional issue, not an affirmative defense and

that, therefore, the unconstitutional delegation problem cannot

be avoided by the unrealistic reasoning of the district court.

(/bid.). The court readily acknowledged that “the power to

determine the applicability of the FSIA can indeed be the

power to set the jurisdiction of the federal courts.” (App.

33a, 162 F.3d at 763 n.14). It concluded, however, that in

this case the delegation issue did not arise because at the time

§1605(a)(7) was passed, Libya was already on the list of state

sponsors of terrorism for purposes of trade sanctions under

the Export Administration Act. Hence, “no decision by the

Secretary was needed to create jurisdiction over Libya for its

alleged role in the destruction of Pan Am 103.” (App. 35a-

36a, 162 F.3d at 764). In the court’s view, the issue of

delegation could only be presented by a foreign state that was

not on the list of state sponsors of terrorism when §1605(a)(7)

was enacted. The court, therefore, rejected Libya’s facial

challenge to the Amendment.

But the vice of allowing a purely political determination

by the political branches of the government to establish the

competence of federal courts is the same regardless of when

a sovereign state is listed as a “state sponsor of terrorism.” It

is obvious that the designation delegates a core legislative

function - the control of federal court jurisdiction — to the

Executive. Congress itself plays no role in making the

determination that a given foreign state deserves to be

characterized a sponsor of terrorism. Congress has given to

the Executive unfettered discretion to decide whether and

when to list a foreign state as a sponsor of terrorism. As

regards the Judicial Branch, the FSL[A Amendment instructs

lower federal courts that the designation of a foreign

16

sovereign as a state sponsor of terrorism renders them

competent to sit as an ad hoc international court, unilaterally

established by the United States, to hear and adjudicate certain

international delicts claimed to have been committed by such

States against U.S. nationals anywhere in the world. Unlike

traditional international tribunals, federal courts are

authorized to punish such states by awarding unlimited

punitive damages. That this view is not fanciful is illustrated

by the experience to date with suits brought under §1605(a)(7)

against Iran and Cuba.” Such suits are destructive of the U.S.

Government’s efforts to ease the strained relations between

the United States and those states.

The 1996 Amendment has politicized the federal judiciary

to an extent unprecedented in the history of the Judicial

Branch since the founding of this Republic. The grant of

subject-matter jurisdiction to federal courts in Section

§1605(a)(7) of the 1996 FSIA Amendment exceeds Congress’

* See Flatow v. Islamic Republic of Iran, 999 F.Supp. 1 (D.D.C.

1998) (suit against Iran for alleged support of terrorist groups in West

Bank; estate and family members of American student killed in suicide

bomber attack by Palestinian terrorist in the Gaza Strip awarded $2.5-mil.

compensatory damages; $22.5-mil. solatium; and $225-mil. - comprising

three times Iran’s estimated annual expenditure for terrorist activities - in

punitive damages);

Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (S.D. Fl. 1997)

(administrators of three U.S. nationals killed when their private planes

were shot down by Cuban Air Force awarded $49.9-mil. in compensatory

damages and $137.7-mil. - comprising 3% of the estimated value of Cuban

Air Force’s MIG fighter fleet - in punitive damages);

Cicippio v. Islamic Republic of Iran, 18 F.Supp. 2d 62 (D.D.C.

1998) (three former hostages in Lebanon brought suit against Iran, alleging

that their captors had received financial support from Iran; court awarded

compensatory damages to the hostages of $9, $16 and $20-mil.,

respectively, and to each of their wives $10-mil. for loss of society and

companionship).

17

constitutional authority. Finally, Libya contended both in the

district court and in the court of appeals that the Amendment

violated the equal protection component of the Fifth

Amendment’s Due Process Clause. It argued that by use of

the term “state sponsor of terrorism”, the Congressional

scheme impermissibly subjects Libya to liability for punitive

damages while insulating non-designated states from such

damages. Libya further urged that use of the term “state

sponsor of terrorism”, as a non-reviewable jurisdictional

predicate for suits under §1605(a)(7), violated the evidentiary

rule against the impermissible use of character evidence, thus

depriving Libya of a fair trial on the merits. The right to a

fair trial is a fundamental right under the Fifth Amendment.

Thus, to pass constitutional muster, the distinction between

“state sponsor[s] of terrorism” and all other States must be

shown to further a compelling governmental purpose. The

district court, using the rational basis test, rejected this

challenge.

The court of appeals did not address the issue due to its

dismissal of that part of Libya’s appeal for lack of appellate

jurisdiction.

In sum, the Amendment violates the principle of

separation of powers and deprives Libya of its rights to a fair

trial by delegating to the Executive the power to establish the

subject matter jurisdiction of federal courts based on

transitory political considerations. Whether the 1996

Amendment’s conferral of subject matter jurisdiction goes

beyond the bounds established by the Constitution should be

reviewed by the Court.

18

Ii. The Court of Appeals Erred In Holding That The

Collateral Order Doctrine Bars Interlocutory

Review Of Personal Jurisdiction In An FSIA Suit

The court of appeals was of the view that in suits against

foreign states under the FSIA subject-matter and personal

jurisdiction present separate issues. (App. 22a-23a, 162 F.3d

at 759). The court accurately stated that “Libya’s challenge

to personal jurisdiction is based on due process and the

principle of minimum contacts.” (/bid.) It then proceeded to

disregard the unique interrelationship in the FSIA between the

concepts of “subject-matter” and “personal” jurisdiction, and

it misread the holding in Swint v. Chambers County Comm'n,

514 U.S. 35 (1995).

Swint, was a civil rights action against three police

officers, a municipality and a county commission. The police

officers took a collateral appeal to the Eleventh Circuit from

the denial of their plea of qualified immunity, in which the

county commission joined, seeking review of the district

court’s denial of its summary judgment motion on liability.

The Eleventh Circuit heard both appeals, and this Court

reversed.

The Court held that “the Eleventh Circuit’s unquestioned

authority immediately to review the district court’s denial of

the police officers’ claim of qualified immunity did not

include authority to review at once the unrelated question of

the County Commission’s liability.” (514 U.S. at 51). The

district court’s ruling on the County’s potential liability did

not qualify as a “collateral order.” The Court held that “there

is no ‘pendent party’ appellate jurisdiction of the kind the

Eleventh Circuit purported to exercise.” (/bid., emphasis

added).

19

Swint plainly teaches that a party that itself cannot

maintain an interlocutory appeal under the collateral order

doctrine may not, under the guise of pendent party appellate

jurisdiction, obtain review of an issue unrelated to the issue

involved in the collateral appeal. Moreover, the district

court's denial of the County Commission’s summary

judgment motion on liability was not jurisdictional, but was

wholly separate and distinct from the court’s ruling on the

policemen’s qualified immunity motions. It is manifest that

the issues which the County Commission raised were wholly

unrelated to the police officers collateral appeal. Here, the

issues of subject-matter and personal jurisdiction are

inseparable. Thus, the court of appeals’ reliance on Swint

was wholly misplaced.

The legislative history of the FSIA makes it clear that the

issue of subject-matter jurisdiction and personal jurisdiction

are inextricably intertwined.’ Although this Court has not

‘© Section 1330(b)of the FSIA reads as follows:

(b) Personal jurisdiction over a foreign state shall

exist as to every claim for relief over which the district

courts have jurisdiction under subsection (a) where service

has been made under section 1608 of this title.

The legislative history of the Act explains this provision thus:

(b) Personal Jurisdiction. Section 1330(b)

provides, in effect, a Federal long-arm statute over

foreign states (including political subdivisions,

agencies, and instrumentalities of foreign states). It

is patterned after the long-arm statute Congress

enacted for the District of Columbia. Public Law

91-358, sec. 132(a), title I, 84 Stat. 549. The

requirements of minimum jurisdictional contacts and

adequate notice are embodied in the provision. Cf.

International Shoe Co. v. Washington, 326 U.S. 310

(1945), and McGee v. International Life Insurance

Co., 355 U.S. 220, 223, (1957). For personal

20 |

specifically addressed this issue in any of its FSIA decisions

to date, all circuits that had occasion to deal with the issue

have uniformly held that both subject-matter and personal

jurisdiction are inextricably intertwined; both present pure

questions of law and are properly reviewed prior to a

potentially protracted trial on the merits."

The court of appeals’ ruling here is also in conflict with

the D.C. Circuit’s rulings in Jungquist v. Sheikh Sultan Bin

Khalifa Al Nayhan, 115 F.3d 1020 (1997) and Rendall-

Speranza v. Nassim, 107 F.3d 913 (1977). In Jungquist, a

collateral order appeal was taken from a district court order |

denying a motion to dismiss a suit under the FSIA against |

members of the royal house of Abu Dhabi for lack of subject- |

matter and personal jurisdiction. The D.C. Circuit affirmed

the district court’s ruling on subject-matter jurisdiction but

reversed its ruling on personal jurisdiction and ordered the

jurisdiction to exist under section 1330(b), the claim

must first of all be one over which the district courts

have original jurisdiction under section 1330(a),

meaning a claim for which the foreign state is not

entitled to immunity. Significantly, each of the

immunity provisions in the bill, sections 1605-1607,

requires some connection between the lawsuit and

the United States . . .

H.R. Rep. 94-1487, 94th Cong., 2d Sess. at 13 (1976).

'! See Federal Ins. Co. v. Richard I. Rubin & Co., Inc., 12 F.3d,

1270, 1282 (3d Cir. 1993), cert. denied, 511 U.S. 1107 (1994); Stena

Rederi AB v. Comision de Contratos del Comite, 923 F.2d 380, 385 (5th

Cir. 1991); Gould, Inc., v. Pechiney Ugine Kuhlmann, 853 F.2d 445, 450-

51 (6th Cir. 1988); Rush-Presbyterian-St. Luke’s Ctr. v. Hellenic

Republic, 877 F.2d 574, 576 n.2 (7th Cir. 1989); Compania Mexicana de

Aviacion, S.A. v. United States Dist. Court for the Cent. Dist. Of Call.,

859 F.2d 1354, 1358 (9th Cir. 1988); Princz v. Federal Republic of

Germany, 26 F.3d 1166 (D.C. Cir. 1994), cert.denied, 115 S.Ct. 923

(1995).

21

suit dismissed. Adopting the view of leading commentators,

the court stated:

Jurisdiction of the interlocutory appeal is in large

measure jurisdiction to deal with all aspects of the

case that have been sufficiently illuminated to enable

decision by the court of appeals without further trial

court development. Any other rule frequently would

require wasted litigation without any offsetting

advantage in economy of appellate effort or

uninterrupted trial court proceedings.

115 F.3d at 1027.

Rendall-Speranza began as a suit by an employee of the

International Finance Corporation against her supervisor in

which the district court allowed the I.F.C. to be added as a

defendant after the statute of limitations had run against it.

Thereafter, the I.F.C. appealed the district court’s denial of

its motion to dismiss for lack of subject-matter jurisdiction

under the International Organizations Immunities Act of 1945

and it also raised the limitation issue. The D.C. Circuit

exercised pendent appellate jurisdiction over the limitations

defense since, if validly raised, the entire action against the

I.F.C. could be disposed of on limitations grounds. The court

pretermitted the difficult and unresolved question of whether

international organizations continued to enjoy absolute

immunity from suit under the 1945 Act. Plainly, the

limitations issue was wholly divorced from the immunity issue

and was not independently appealable, yet it was addressed by

the court of appeals in the interest of judicial economy.

The court of appeals’ mistaken view of the FSIA’s

jurisdictional design and the conflict in circuits which its

decision has created with respect to the reviewability of FSIA

personal jurisdiction conjunctively with subject-matter

jurisdiction fully merit review by this Court.

22

Ill. The Court of Appeals Erred In Dismissing for

Want of Appellate Jurisdiction Libya’s Challenge

To The Alien Plaintiffs’ Claims For Relief Under

the Alien Tort Act.

Argentine Republic v. Amerada Hess Shipping Corp. , 488

U.S. 428, 439 (1989) squarely teaches that “the FSIA is the

sole basis for obtaining jurisdiction over a foreign state in our

courts,” to the exclusion of all other jurisdictional bases. The

Court there unanimously held that suit will not lie against a

foreign state under the Alien Tort Act, 28 U.S.C. §1350.

That Act permits suit by aliens only against individuals, and

all courts, with the exception of the district court here, have

followed the Court’s interpretation. In addition, in this case,

Congress expressly excluded aliens from suits under the 1996

Amendment against states designated as “sponsors of

terrorism”. See §1605(a)(7)(B)(ii)."? In this consolidated

action, numerous plaintiffs or victims - as yet unidentified -

are aliens.”

The district court denied that part of Libya’s motion

seeking dismissal of the alien claimant’s suit for lack of

‘2 “[T]he court shall decline to hear a claim under this paragraph

{(a)(7)] . . . if. . . neither the claimant nor the victim was a national of

the United States (as that term is defined in section 101(a)(2) of the

Immigration and Nationality Act) when the act upon which the claim is

based occurred.”

‘> A multi-plaintiff suit was recently filed in the District Court for

the District of Columbia against Libya and consolidated with the instant

action in which all plaintiffs are aliens. Plaintiffs seek billions of dollars

in compensatory and punitive damages. This filing is said to have been

made on the authority of the district court’s ruling in this case. Anderson

v. Socialist Peoples’ Libyan Arab Jamahiriya, Case No. 98CV7533

(TCP), (E.D.N.Y.)

23

subject-matter jurisdiction against Libya under the Alien Tort

Act in a curt passage:

Having established subject-matter and personal

jurisdiction over ...[Libya] in this action, the Court

also finds that it has pendent jurisdiction to hear all

of the plaintiffs’ remaining claims. . .

App. 49a, 995 F.Supp. at 331.

Libya’s appeal challenged this ruling, but the court of

appeals declined to hear the challenge when it dismissed “all

other aspects of this interlocutory appeal for want of appellate

jurisdiction.” (App. 36a, 162 F.3d at 764).

Consequently, the district court’s ruling that “pendent

jurisdiction” confers subject-matter jurisdiction against Libya

under the Alien Tort Act has been left standing. The ruling

plainly conflicts with the Amerada Hess Court’s express

holding and merits review by this Court.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

ROBERT C. MIRONE

Counsel of Record for Petitioners

LAW OFFICES OF ROBERT C. MIRONE, P.C.

630 Third Avenue, 21st Floor

New York, New York 10017

(212) 949-0550

24

BRUNO A. RISTAU

LAW OFFICES OF BRUNO A. RISTAU

1701 Pennsylvania Ave., N.W.

Suite 300

Washington, D.C. 20006

(202) 879-2655

DAVID B. MELTZ

1422 W. Peachtree St., N.W.

Suite 320

Atlanta, Georgia 30309

(404) 724-0712

Of Counsel:

JEAN-LUC MARX

72, Boulv. De Courcelles

F-75017 Paris, France

Dated: March 12, 1999