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PRICE v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA
August 24, 2000
MICHAEL H. PRICE AND ROGER K. FREY PLAINTIFFS
SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA DEFENDANT
The opinion of the court was delivered by: Lamberth, District Judge.
This matter comes before the court upon a complaint filed by
plaintiffs Michael H. Price and Roger K. Frey against defendant
Socialist People's Libyan Arab Jamahiriya ("Libya") seeking
general, specific, and compensatory damages in excess of twenty
million dollars for each plaintiff. Plaintiffs allege that they
were taken hostage and subjected to physical and mental torture
in violation of 28 U.S.C. § 1605(a)(7), as amended, 1996.
For the following reasons, Libya's Motion to Dismiss will be
On May 7, 1997, plaintiffs brought this suit against Libya.
Price and Frey assert in their complaint that the Libyan
government's sponsorship of their abusive treatment constitutes
"acts which governments do not normally and cannot lawfully
undertake," thereby waiving the government's right to sovereign
immunity under the Foreign Sovereign Immunities Act ("FSIA"). See
Plaintiffs' Complaint ¶ 10.
Libya responded by filing a Motion to Dismiss on January 21,
1998, claiming 1) insufficient service of process, 2) failure to
provide a reasonable opportunity to arbitrate, 3) lack of
personal and subject matter jurisdiction, and 4) failure to state
a claim upon which relief can be granted. This court denied
defendant's motion without prejudice, ruling that plaintiffs'
method of serving process was inadequate but sua sponte granting
a 60-day extension for plaintiffs to perfect service of process.
See Memorandum and Order (filed September 24, 1999). In its
opinion, this court declined to address the remaining issues
raised by Libya, ruling that any adjudication would be premature
in the absence of sufficient service.
After plaintiffs properly effected service of process,
defendant renewed its Motion to Dismiss on February 9, 2000,
contending that 1) Congress' grant of subject matter jurisdiction
under § 1605(a)(7) is invalid, 2) this court's exercise of
personal jurisdiction over the defendant is unconstitutional, and
3) plaintiffs fail to state a claim upon which relief can be
granted. This court now considers each of these arguments in
A. Subject matter jurisdiction
Defendant does not dispute that § 1605(a)(7) of the FSIA
confers subject matter jurisdiction on United States courts "to
adjudicate money damages against designated states for personal
injury or death caused, inter alia, by acts of torture and
hostage taking." See Defendant's Motion to Dismiss (filed
February 9, 2000). However, Libya argues that this grant of
subject matter jurisdiction in the statute is invalid for three
reasons: 1) the passive personality principle upon which subject
matter jurisdiction is based is disfavored by the executive and
judicial branches of this government as well as international
law, 2) Congress lacks the constitutional authority to grant
subject matter jurisdiction pursuant to § 1605(a)(7), and 3)
Congress' grant of subject matter jurisdiction violates the
doctrine of separation of powers.
1. The "passive personality" principle
The passive personality principle forms the underpinnings of
Congress' grant of subject matter jurisdiction under the FSIA:
"Under the passive personality principle, a state may punish
non-nationals for crimes committed against its nationals outside of
its territory, at least where the state has a particularly strong
interest in the crime." United States v. Yunis, 924 F.2d 1086,
1090 (D.C. Cir. 1991). Defendant notes that subject matter
jurisdiction is created under the passive personality principle
simply by virtue of the plaintiffs' nationality. Libya argues at
length in its Motion to Dismiss that the executive branch,
American courts, and international law have historically frowned
upon legislative grants of subject matter jurisdiction when
jurisdictional contacts with the United States depend solely on
plaintiffs' American citizenship.
Yet this court finds that this
jurisdictional argument lacks merit in light of recent judicial
rulings in this circuit. In United States v. Yunis, the
defendant alleged the same jurisdictional infirmities under the
passive personality principle that Libya presents in this case.
The Court of Appeals in Yunis rejected this line of argument,
finding that "American courts are obligated to give effect to an
unambiguous exercise by Congress of its jurisdiction to prescribe
even if such an exercise would exceed the limitations imposed by
international law." Id. at 1091 (quoting Federal Trade Comm'n v.
Compagnie de Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1323
(D.C.Cir. 1980)). In the absence of constitutional violations,
the decision in Yunis accords dispositive weight to acts of
Congress. Thus, the authorities cited by defendant that preceded
the 1996 amendments to the FSIA do not provide a basis for this
court to diverge from the holding in Yunis. As the Court of
Appeals concluded: "The statute in question reflects an
unmistakable congressional intent, consistent with treaty
obligations of the United States, to authorize prosecution of
those who take Americans hostage abroad no matter where the
offense occurs or where the offender is found. Our inquiry can go
no further." Id. at 1091.
2. The constitutionality of Congress' grant of
subject matter jurisdiction under the FSIA
The Congress of the United States is a legislature of
enumerated and specific powers, and can only act in accordance
with the limitations imposed by the Constitution. Marbury v.
Madison, 5 U.S. 137, 176 (1803). The Supreme Court ruled in
Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983)
that the Constitution imposes no such limitation on the ability
of Congress to waive the sovereign immunity of foreign countries:
"Foreign sovereign immunity is a matter of grace and comity on
the part of the United States, and not a restriction imposed by
the Constitution." Id. at 486. The Supreme Court subsequently
found that Congress is uniquely positioned to determine the
conditions under which foreign countries should be subjected to
the jurisdiction of American courts: "By reason of its authority
over foreign commerce and foreign relations, Congress has the
undisputed power to decide, as a matter of federal law, whether
and under what circumstances foreign nations should be amenable
to suit in the United States." Id. at 492. This conclusion
required an explicit finding by the Court that the Constitution
grants Congress the power to create subject matter jurisdiction
for federal courts through the FSIA: "The jurisdictional grant is
within the bounds of Article III, since ...
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