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August 24, 2000


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 denied.

I. Facts

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 turn.
II. Argument
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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