United States District Court, District of Columbia
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
Plaintiffs are citizens of the United States. On March 19,
1980, they were accused of taking photographs for illegal
purposes and detained in a Libyan prison pending trial.
Plaintiffs allege that during their 105-day incarceration they
were clubbed and beaten by the prison guards, mentally and
verbally abused during interrogations, subjected to crowded and
unsanitary conditions, and denied adequate nutrition and medical
care. Price and Frey further allege that after being acquitted
of all charges, Libya refused to allow plaintiffs to recover
their passports or leave the country for sixty days.
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 every action against a
foreign sovereign necessarily involves application of a body of
substantive federal law, and accordingly `arises under' federal
law, within the meaning of Article III." Id. at 497.
Accordingly, this court rejects defendant's attack on the
constitutionality of this court's subject matter jurisdiction.
3. Separation of Powers
Defendant argues that the 1996 amendments to the FSIA are an
unconstitutional delegation of legislative powers to the
executive branch since they authorize the Secretary of State to
determine which foreign countries are amenable to suit in the
United States under § 1605(a)(7). For purposes of this case,
however, this court need not address the constitutionality of
this delegation of power since the decision to subject Libya to
the jurisdiction of American courts was made by Congress and not
the executive branch:
The decision to subject Libya to jurisdiction under
§ 1605(a)(7) was manifestly made by Congress
itself rather than by the State Department. At the
time that § 1605(a)(7) was passed, Libya was
already on the list of state sponsors of terrorism.
No decision whatsoever of
the Secretary of State was
needed to create jurisdiction over Libya for its
alleged role in the destruction of Pan Am 103. That
jurisdiction existed the moment that the AEDPA
amendment became law. Rein v. Socialist Libyan Arab
Jamahiriya, 162 F.3d 748, 764 (2nd Cir. 1998).
B. Personal jurisdiction
Defendant argues that this court cannot constitutionally
acquire in personam jurisdiction over Libya since the country
lacks sufficient minimum contacts with the United States:
"[Libya] has no presence in the United States, does not conduct
any business in the United States either directly or through an
agent, and has no other affiliating contacts with the United
States." Defendant's Motion to Dismiss (filed February 9, 2000).
Citing substantial case law, Libya further argues that the
American citizenship of the plaintiffs by itself is insufficient
to establish the requisite minimum contacts.
However, this court observes that the process of obtaining
personal jurisdiction under the FSIA does not follow the
traditional approach outlined in International Shoe Co. v.
Washington, 326 U.S. 310 (1945). As the Supreme Court observed
in Argentine Republic v. Amerada Hess Shipping Corp., 109 S.Ct.
683 (1989), "the text and structure of the FSIA demonstrate
Congress' intention that the FSIA be the sole basis for obtaining
jurisdiction over a foreign state in our courts." Id. at 688.
28 U.S.C. § 1330 describes the conditions under which courts
may obtain in personam jurisdiction over foreign countries:
(a). The district courts shall have original
jurisdiction of any nonjury civil action against
a foreign state as to any claim for relief in
personam with respect to which the foreign state
is not entitled to immunity.
(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 statute itself and subsequent caselaw demonstrate that the
process of establishing personal jurisdiction over a foreign
country is sensitive to the particular sovereign immunity
exception invoked by the plaintiffs. In Rein v. Socialist
People's Libyan Arab Jamahiriya, 162 F.3d 748 (2nd Cir. 1998),
Libya raised the same personal jurisdiction arguments that have
been submitted to the court in this case. Significantly, the
Court of Appeals ruled in Rein that an independent finding of
minimal contacts is not required for establishing personal
jurisdiction over a defendant when subject matter jurisdiction
arises pursuant to § 1605(a)(7) of the FSIA: "The elements of
§ 1605(a)(7), unlike those of the commercial activities
exception, do not entail any finding of minimum contacts." Id.
at 761. Indeed, cases under the torture provision are unique in
that courts automatically obtain personal jurisdiction over the
foreign country whenever the requirements of subject matter
jurisdiction and service of process are satisfied:
The two kinds of jurisdiction — subject matter
and personal — are interrelated under the FSIA.
Pursuant to that statute, there is personal jurisdiction
over foreign sovereigns with respect to all claims (a)
over which there is subject matter jurisdiction, and (b)
as to which process has been properly served. In other
words, the statute makes both service of process and
subject matter jurisdiction elements of personal
jurisdiction over foreign sovereigns. Id. at 759.
This unique method for establishing personal jurisdiction under
§ 1605(a)(7) reflects Congress' understanding that sufficient
nexus with the United States exists by definition when the
foreign country is accused of torturing an American citizen
overseas. Thus, notwithstanding the arguments of defendant, this
court finds that this process for obtaining personal
jurisdiction does not undermine the Fifth Amendment's guarantee of due
process, but is necessary to allow for the adjudication of claims
arising under § 1605(a)(7). Accordingly, this court's
exercise of personal jurisdiction over Libya is constitutional.
C. Plaintiffs' causes of action
According to Federal Rule of Civil Procedure 8(a)(2), a
complaint need only contain "a short and plain statement of the
claim showing that the pleader is entitled to relief." In Conley
v. Gibson, 355 U.S. 41 (1957), the Supreme Court interpreted this
rule to mean that "a complaint shall not be dismissed for failure
to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Id. at 45-46. Nonetheless,
defendant argues for a Rule 12(b)6 dismissal of plaintiffs'
complaint on grounds that plaintiffs fail to sufficiently allege
a cause of action for 1) torture, and 2) hostage taking.
Defendant contends that plaintiffs fail to state a valid cause
of action for torture since they do not allege in their complaint
that the violence they suffered at the hands of the Libyan prison
guards was committed "for the purpose of extracting information
or a confession from them." See Defendant's Motion to Dismiss.
However, this definition of torture employed by defendant is
unduly narrow. Addendum 1 to defendant's motion concedes that
the term "torture" in the 1996 amendment to the FSIA derives its
meaning from the definition of torture in Section 3 of the
Torture Victim Protection Act of 1991 ("TVPA"):
The term "torture" means any act, directed
against an individual in the offender's
custody or physical control, by which
severe pain or suffering (other than pain or
suffering arising only from or inherent in,
or incidental to, lawful sanctions), whether
physical or mental, is intentionally inflicted
on that individual for such purposes as
obtaining from that individual or a third
person information or a confession, punishing
that individual for an act that individual or
a third person is suspected of having committed,
intimidating or coercing that individual or a third
person, or for any reason based on discrimination
of any kind." Section 3(b)(1), Torture Victim
Protection Act of 1991. (Emphasis added).
Under this broader definition, this court finds that
plaintiffs' allegations satisfy the elements of torture as
defined in the TVPA and adequately plead a cause of action for
torture. First, plaintiffs allege that they were subjected to
severe pain and suffering in the course of being "kicked, clubbed
and beaten by the prison guards," and "interrogated and subjected
to physical, mental and verbal abuse." Price and Frey also
allege that they were within the Libyan government's custody at
the time the alleged acts of torture occurred. Finally, their
claim that they were singled out for their American citizenship
properly alleges a discriminatory purpose in accord with the TVPA
2. Hostage taking
Plaintiffs and defendant stipulate that the term "hostage
taking" in the 1996 FSIA amendment derives its meaning from the
definition of that term in Article I of the International
Convention Against the Taking of Hostages:
Any person who seizes or detains and threatens
to kill, to injure or to continue to detain
another person in order to compel a third
party, namely, a State, an international
governmental organization, a natural or
juridical person or a group of persons, to
do or abstain from doing any act as an
explicit or implicit condition for the
release of the hostage commits the offense
of taking hostages within the meaning
of this Convention.
By simply alleging that the circumstances of their confinement
constitute hostage taking as defined by the statute, the
plaintiffs satisfied the pleading requirements of Rule 8: "All
the Rules [of Civil Procedure] require is a short and plain
statement of the claim that will give the defendant fair notice
of what the plaintiff's claim is and the grounds upon which it
rests." Conley v. Gibson, 355 U.S. 41
, 45-46 (1957). Moreover,
plaintiffs specifically claim that they were confined "for the
purpose of demonstrating Defendant's support of the government of
Iran which held hostages in the U.S. Embassy in Teheran, Iran."
See Plaintiffs' Complaint. Implicit in plaintiffs' complaint is
the allegation that Libya incorporated Iran's motive for taking
hostages at the American Embassy to detain and mistreat Price and
Frey in Libya. Accordingly, this court finds that plaintiffs'
allegations satisfy the elements of hostage taking as defined by
the Convention and adequately plead a cause of action.
This court finds that 1) Congress' grant of subject matter
jurisdiction under § 1605(a)(7) is valid, 2) this court's
exercise of personal jurisdiction over Libya is constitutional,
and 3) plaintiffs state a valid cause for action for both torture
and hostage taking.
According, defendant's Motion to Dismiss will be denied.
A separate order shall issue this date.
The Court having considered the defendant's Motion to Dismiss
for lack of subject matter and personal jurisdiction under the
Foreign Sovereign Immunities Act of 1976, as amended, and in the
alternative, for failure to state claims upon which relief can be
granted, plaintiffs' opposition thereto, defendant's reply and
the record herein, for the reasons stated in an accompanying
Memorandum and Opinion, it is hereby
ORDERED that defendant's Motion to Dismiss is denied.
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