The opinion of the court was delivered by: PENN
The plaintiffs, Raymond and Colleen Ledgerwood, filed this action on March 9, 1981. The plaintiffs seek redress in tort for alleged personal injuries and deprivation of civil rights arising out of a February 14, 1979 seizure by Iranian militants of the United States Embassy in Tehran, Iran. Alleging that from February 14, 1979 through February 15, 1979 the state of Iran and ten unidentified "John Doe" defendants unjustly imprisoned and assaulted Raymond Ledgerwood, the plaintiffs now seek fifteen million dollars in damages.
The matter is now before the Court sua sponte to determine whether this court has jurisdiction over the defendants, and if so, whether the Court should exercise jurisdiction. The plaintiffs filed a motion for entry of a default judgment against Iran. In response, the Department of Justice filed a Statement of Interest on behalf of the United States asserting that the action is barred by both the provisions of the Foreign Sovereign Immunities Act (FSIA) of 1976, 28 U.S.C.A. §§ 1330, 1602 et seq. (1976) and Executive Order 12283, 46 Fed. Reg. 7927 (January 23, 1981), along with its implementing Treasury regulations. In a special appearance, counsel for the defendants filed a Statement asserting that paragraph eleven of the Declaration of the Democratic and Popular Republic of Algeria, 20 Int'l L. Materials 224, 227 (1981) obligates the United States to bar this lawsuit.
FLAG, Inc., a non profit organization, filed a brief amicus curiae, urging that jurisdiction would lie in the instant action, as the sovereign immunity of the government of Iran would be waived by virtue of 28 U.S.C. § 1605(a)(5). The plaintiffs advance a similar argument that because the action falls within the section 1605(a)(5) FSIA exception for certain noncommercial acts,
Iran is not entitled to immunity. After careful consideration of the record, the arguments, and the applicable law, the Court concludes that the Foreign Sovereign Immunities Act precludes maintenance of this tort action against Iran.
It is well established law that "an action brought in the United States against a foreign sovereign faces two potential obstacles - - the Foreign Sovereign Immunities Act and the 'act of state' doctrine."
Frolova v. Union of Soviet Socialist Republics, 558 F. Supp. 358, 360 (N.D. Ill. 1983). The Foreign Sovereign Immunities Act (FSIA) of 1976, sets forth the sole and exclusive standards for consideration in resolving questions of sovereign immunity raised by foreign states before federal or state courts in the United States. 28 U.S.C. §§ 1602 et seq.; Annot. 25 ALR 3d 20 (Supp. 1984). Under the FSIA, foreign states are generally immune from the jurisdiction of federal and state courts. Persinger v. Islamic Republic of Iran, 234 U.S. App. D.C. 349, 729 F.2d 835, 838 (D.C. Cir.), cert. denied, 469 U.S. 881, 105 S. Ct. 247, 83 L. Ed. 2d 185 (1984); (citing The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116, 136, 3 L. Ed. 287 (1812)). The FSIA expressly deprives a court of jurisdiction over any party entitled to sovereign immunity. Persinger, 729 F.2d at 838.
The FSIA does, however, create certain exceptions where the sovereign nation loses its immunity:
Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.
28 U.S.C. § 1604 (emphasis added).
If one of the specified exemptions to sovereign immunity applies, a federal district court may exercise jurisdiction under § 1330(a); but if the claim does not fall within one of the exceptions, federal courts lack subject matter jurisdiction. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 486, 103 S. Ct. 1962, 1969, 76 L. Ed. 2d 81 (1983).
Section 1605(a)(5) creates one such exception for certain noncommercial (or tortious actions) as follows:
A foreign state shall not be immune from the jurisdictions of courts of the United States in any case . . . in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious acts or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office, or employment; except this paragraph shall not apply to --
(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or
(B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.