The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs, former prisoners of war ("POWs") during the Gulf War in 1991 and family members of those POWs, were awarded final judgment against defendants Republic of Iraq, Saddam Hussein, and the Iraqi Intelligence Service. The United States has filed a post-judgment motion to intervene in order to raise Iraq's newly restored sovereign immunity as a challenge to the Court's subject matter jurisdiction and to move to vacate the final judgment in this case. Because the United States is not entitled to intervene as a matter of right or permissively, its motion to intervene will be denied.
The factual background of this case is set forth fully in the Findings of Fact and Conclusions of Law entered July 7, 2003. See Acree, et al. v. Republic of Iraq, et al., __ F. Supp. 2d __, 2003 WL 21537919 (D.D.C. July 7, 2003). Briefly, the plaintiff POWs were brutally tortured by agents of Saddam Hussein's Iraqi government, causing severe and long-lasting mental and physical injury. The Iraqi agents refused to notify the International Committee of the Red Cross of the POWs' capture and condition, causing prolonged anguish and injury to the family members of the POWs.
Plaintiffs filed this lawsuit on April 4, 2002. After they obtained proper service of process on defendants and defendants failed to appear, the Clerk of Court entered default on September 25, 2003. On March 31, 2003, plaintiffs submitted evidence to support their cause of action against defendants and their claim for damages. The Court thoroughly and carefully reviewed plaintiffs' evidence and ascertained that Iraq, Saddam Hussein, and the Iraqi Intelligence Service were covered by the waiver of sovereign immunity contained in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(7) (2000) ("FSIA"). On July 7, 2003, the Court entered final judgment in favor of plaintiffs against the Republic of Iraq, Saddam Hussein, and the Iraqi Intelligence Service, and awarded damages.
On July 18, 2003, plaintiffs filed a separate lawsuit in this Court seeking to satisfy their judgment from certain Iraqi bank accounts located in this country that the federal government had previously seized. See Acree, et al. v. Federal Reserve Bank of New York and John Snow, Civil Action No. 03-1549 ("Acree v. Snow").*fn1 The Court granted a temporary restraining order ("TRO") in that case to preserve the status quo pending a consolidated hearing on the merits of the parties' motions for summary judgment and the plaintiffs' application for a preliminary injunction. Following a hearing in that case on July 29, 2003, the Court granted defendant's motion for summary judgment, holding that the Court could not require the United States to make available to plaintiffs any portion of the seized Iraqi funds.
On July 21, 2003, the Monday after plaintiffs obtained the TRO in Acree v. Snow, the United States filed its motion to intervene in this case. The United States claims that it seeks to intervene in order to ensure the successful establishment of a democratic government in Iraq. The United States also claims that it has an interest in protecting the seized Iraqi assets which were the subject of the Court's ruling in Acree v. Snow and in effectuating the intent of Congress and the President with respect to lawsuits against Iraq.
Intervention, both as a matter of right and permissive, requires that the application be timely. Fed. R. Civ. P. 24(a), (b). An untimely motion to intervene"must be denied." NAACP v. New York, 413 U.S. 345, 365 (1973)."Timeliness is measured from when the prospective intervenor knew or should have known that any of its rights would be directly affected by the litigation." Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233 (D.C. Cir. 2003). Whether a motion to intervene is timely is to be evaluated based on all the circumstances present in the case, including"the time elapsed since the inception of the suit, the purpose for which intervention is sought, the need for intervention as a means of preserving the applicant's rights, and the probability of prejudice to those already parties in the case." Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 2001) (quoting United States v. AT&T, 642 F.2d 1285, 1295 (D.C. Cir. 1980)). Timeliness"is to be determined by the court in the exercise of its sound discretion[.]" Associated Builders and Contractors, Inc. v. Herman, 166 F.3d 1248, 1257 (D.C. Cir. 1999) (quoting NAACP, 413 U.S. at 366). A post-judgment motion to intervene"will usually be denied where a clear opportunity for pre-judgment intervention was not taken." Associated Builders, 166 F.3d at 1257.
On April 16, 2003, Congress authorized the President to"make inapplicable with respect to Iraq... any other provision of law that applies to countries that have supported terrorism." Emergency Wartime Supplemental Appropriations Act, § 1503, Public Law 108-11, 117 Stat. 579 (April 16, 2003) (the"Act"). In this case, the United States claims that it did not need to intervene until the President exercised the authority granted to him by Congress in the Act and issued a Presidential Determination on May 7, 2003 making"inapplicable with respect to Iraq... any other provision of law that applies to countries that have supported terrorism." Presidential Determination No. 2003-23 of May 7, 2003 (the"Determination").
Accepting the government's argument that the timeliness of its motion to intervene should be evaluated from the May 7 Presidential Determination, it is uncontroverted that the United States was well aware on that date that this case was pending. It is also undisputed that the United States waited significantly more than two months after May 7 and almost two weeks after the Court entered final judgment before it moved to intervene.*fn2
The 75-day delay in this case -- 13 days of which were post judgment after the government had a two-month opportunity to file the motion pre-judgment -- is a more lengthy delay than existed in the cases involving pre-judgment motions relied upon by the United States. See Roeder, 333 F.3d at 233 (government moved to intervene before judgment and less than 30 days after receiving notice of unprotected right); National Wildlife Federation v. Burford, 878 F.2d 422, 434 (D.C. Cir. 1989) (pre-judgment motion to intervene filed 73 days after applicant became aware of unprotected right was timely as to that claim), rev'd on other grounds, 497 U.S. 871 (1990); see also Fund for Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003) (pre-judgment motion to intervene which was filed within two months and before answer filed was timely). The United States has not cited, and the Court is not aware of, any case in which this circuit has overruled a timeliness challenge to a post-judgment motion to intervene in which the applicant inexplicably failed to file its motion during the two months between the date it became aware of its asserted threatened interest and the entry of final judgment and which was filed 75 days after the applicant became aware of its asserted unprotected interest.
Moreover, the 75-day delay in this case is significantly greater than the 17-day delay in NAACP v. New York. In that case, the applicant claimed that it first learned on March 21, 1972 that its cognizable interests were not adequately protected. The applicant did not file its motion to intervene until April 7, 1972, and the Supreme ...