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Dammarell v. Islamic Republic of Iran

March 29, 2005

ANNE DAMMARELL, ET AL., PLAINTIFFS,
v.
ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

On April 18, 1983, a massive car bomb exploded at the United States Embassy in Beirut, Lebanon, killing sixty-three people and injuring over one hundred others. Among those killed in the blast were seventeen United States citizens. The explosion was the first large-scale attack against a United States embassy anywhere in the world, and marked the onset of two decades of terrorist attacks on the United States and its citizens overseas and at home. In this civil action, more than eighty plaintiffs -- citizens of the United States who were victims of the bombings, and their families and estates -- seek damages from the Islamic Republic of Iran ("Iran") and its Ministry of Intelligence and Security ("MOIS") for their material support of the terrorist organization that carried out this devastating attack.

Following a six-day evidentiary trial concerning the claims of a group of representative plaintiffs, the Court on September 8, 2003, issued a memorandum opinion setting out its findings of facts and conclusions of law. In that opinion, the Court held that the sovereign immunity of defendants from suit was revoked by the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act ("FSIA"); that plaintiffs had raised valid causes of action under the so-called Flatow Amendment to the FSIA, as well as under state and federal common law; and that plaintiffs were entitled to compensatory damages for wrongful death, solatium, battery, and intentional infliction of emotional distress (although not punitive damages, which were foreclosed by the FSIA). See Dammarell v. Islamic Republic of Iran, 281 F. Supp. 2d 105, 191-203 (D.D.C. 2003). The Court entered judgment in favor of the representative plaintiffs, and referred the case to Magistrate Judge John M. Facciola, serving as a special master for the purpose of receiving evidence as to damages for the remaining plaintiffs. Proceedings before Judge Facciola have gone forward.

Several months after this Court filed its memorandum opinion, the D.C. Circuit issued a decision in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004), holding that"neither 28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two considered in tandem, creates a private right of action against a foreign government." Id. at 1033. This Court invited briefing from the plaintiffs regarding the issues raised by Cicippio-Puleo and the continuing viability of their claims. While the plaintiffs were preparing that filing, the D.C. Circuit issued another FSIA decision, this time holding that plaintiffs cannot state a right of action under the"generic common law" or merely"allude[] to the traditional torts... in their generic form" but instead must "identify a particular cause of action arising out of a specific source of law." Acree v. Republic of Iraq, 370 F.3d 41, 58-59 (D.C. Cir. 2004) (quotation omitted).

Plaintiffs have now submitted a 100-page motion for final judgment in which they propose several sources of law that they contend continue to furnish a cause of action against foreign states in the wake of Cicippio-Puleo and the other recent authority. The Court has carefully considered plaintiffs' motion, along with two even more recent decisions by the D.C. Circuit interpreting the state-sponsored terrorism exception, and the entire area of jurisprudence in this still-evolving area of law. In this memorandum opinion and the accompanying order, this Court holds that defendants are subject to suit under the state-sponsored terrorism exception to the FSIA, and that state common and statutory law -- specifically, the law of the state of domicile of each of the plaintiffs (or, in the case of an estate, the law of domicile of the decedent) -- may provide a cause of action against defendants in this action.

These causes of action, however, can be found nowhere in plaintiffs' complaint. Although plaintiffs state generalized claims in their complaint for wrongful death, battery, and the like, they do not specify whether these claims are based in state law (or some other source of law), or whether they arise out of the common law or a particular statute. In other words, the complaint fails to"identify a particular cause of action arising out of a specific source of law," and therefore falls short of the standard recently set by the D.C. Circuit. See Acree, 370 F.3d at 58. Because plaintiffs have made clear that they desire to press state law claims, the proper course -- and the one this Court will follow -- is to allow plaintiffs an opportunity to amend their complaint to plead state law causes of action against these sovereign defendants with the necessary detail under the law.

Plaintiffs testified at trial that they brought this lawsuit for a variety of reasons. Some explained that they wanted to ensure that history does not forget the participation of defendants in a brutal and devastating act of terror. Others were hoping to create a financial disincentive for the support of similar acts in the future. Still others were seeking a measure of compensation for the staggering toll that the attack has exacted on their lives and the lives of their loved ones. These intertwined goals are within reach. Reliving this tragedy at trial was manifestly difficult for plaintiffs, and this Court understands that this opinion may not yet provide the finality that plaintiffs seek. However, the Court affirms today that plaintiffs may state valid causes of action against these defendants under state law and that a judgment will soon be entered against these defendants for their role in this senseless attack. Once plaintiffs amend their complaint to specify causes of action consistent with the governing law in this nascent and sensitive area of jurisprudence, the redress and the closure plaintiffs desire should finally be at hand.

BACKGROUND

Early in the afternoon on April 18, 1983, an unknown driver crashed a vehicle carrying hundreds of pounds of explosives into the main entrance of the United States Embassy in Beirut, Lebanon. See Dammarell v. Islamic Republic of Iran, 281 F. Supp. 2d 105, 111 (D.D.C. 2003). The vehicle exploded with such violent force that it caused seven floors of the embassy building to collapse. Sixty-three people died in the blast, including seventeen United States citizens. More than one hundred others were wounded. The bombing was the first attack of its kind on a United States embassy, ushering in an era of more than two decades of terrorist strikes on United States citizens and facilities at home and abroad. See id.

Soon after the bombing, the State Department concluded that"radical Lebanese Shi'a... operating with Iranian support and encouragement" were"responsible for the suicide attack against the U.S. Embassy." Id. The Republic of Iran and the MOIS for several years had been cultivating a terrorist organization from among the Lebanese Shi'a to advance the goal of driving the West out of the Middle East. Iran and the MOIS provided this group with money, arms, training, and political and strategic leadership. With the ongoing support and direction of Iran and the MOIS, this group -- known as Hizbollah -- would carry out a series of terrorist attacks directed at Westerners, including the embassy bombing that gives rise to this case. See id. at 111-12.*fn1

This action commenced on October 29, 2001, when more than sixty plaintiffs filed a complaint seeking damages from Iran and the MOIS for their material support of Hizbollah in the embassy bombing. Each plaintiff is a United States citizen or the estate of a United States citizen. The plaintiffs fall into three categories: (i) individuals injured in the bombing, (ii) family members of individuals killed in the bombing, and (iii) the estates of individuals killed in the bombing. In the course of this litigation, plaintiffs have twice amended their complaint to add new plaintiffs (bringing the number of plaintiffs to more than eighty), but they have never substantially altered the content of their allegations or the nature of their claims.

The complaint alleges that each of the plaintiffs was injured as"a direct and proximate result" of the willful acts of Hizbollah members,"whose acts were funded and directed by the Islamic Republic of Iran through its agent MOIS." E.g., Second Am. Compl. ¶ 192. The six counts in the complaint refer in general terms to claims for wrongful death and solatium, battery, intentional infliction of emotional distress, survival damages, economic damages, and punitive damages. See id. at pp. 53, 61, 62, 67, 69. There is no indication in the complaint whether these are common law or statutory claims, or whether the claims purport to arise out of state, federal, or international law. The lone reference to any source of law in the six counts is in the count for punitive damages, which cites the Flatow Amendment to the FSIA (29 U.S.C. § 1605 note) as authorizing"a cause of action for punitive damages in civil actions for money damages resulting from terrorist acts." Second Am. Compl. ¶ 245.

Plaintiffs effectuated service of the complaint on defendants through diplomatic channels. Defendants failed to appear, and the Clerk entered default against them. In an order dated October 8, 2002, the Court outlined the procedures that would guide the remainder of the case. The case would proceed in two phases. In the initial phase, certain plaintiffs would present evidence concerning the liability of defendants for the embassy bombing, expert witnesses concerning damages, and factual testimony from a representative group of plaintiffs. The Court would issue findings of fact and conclusions of law with regard to the claims of those plaintiffs based on the evidence presented during that phase. In the second phase, the claims of the remaining plaintiffs would be heard by Magistrate Judge Facciola sitting as a Special Master, who would prepare a report consistent with Fed. R. Civ. P. 53(e)(1).

This Court held a six-day evidentiary hearing in April 2003. At this hearing, the Court heard testimony from ten victims or families of victims, two former United States Ambassadors, and several experts on the topics of Iranian sponsorship of terrorism, the psychological effects of trauma, and economic damages. On September 8, 2003, the Court issued its findings of fact and conclusions of law. See Dammarell, 281 F. Supp. 2d at 105. The Court held in that opinion that Iran and the MOIS were responsible for the embassy bombing, id. at 191; that Iran and the MOIS were subject to jurisdiction under the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act ("FSIA"), id. at 193-94; that plaintiffs stated a cause of action against Iran and the MOIS under the Flatow Amendment and, in the alternative, under state or federal common law, id. at 192-94; and that plaintiffs should recover economic damages for wrongful death and personal injuries, compensatory damages for loss of solatium, battery, and intentional infliction of emotional distress, but no punitive damages, id. at 194-203.*fn2 The Court entered judgment in favor of the representative plaintiffs in the amount of $123,061,657, and referred the matter to Magistrate Judge Facciola for further proceedings as to the remaining plaintiffs. See id. at 202-03.

Several months later, the D.C. Circuit issued its decision in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004). The plaintiffs in Cicippio-Puleo were the children and siblings of a United States citizen abducted and held hostage by Hizbollah. The plaintiffs brought suit against Iran and the MOIS, stating claims that purported to arise directly under the state-sponsored terrorism exception to the FSIA (28 U.S.C. § 1605(a)(7)) and the Flatow Amendment (28 U.S.C. § 1605). The D.C. Circuit concluded that the plaintiffs failed to state a claim upon which relief could be granted, explaining that"neither 28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two considered in tandem, creates a private right of action against a foreign government." Cicippio-Puleo, 353 F.3d at 1032. The court remanded the case to the district court"to allow plaintiffs an opportunity to amend their complaint to state a cause of action under some other source of law, including state law." Id. at 1036.

Cicippio-Puleo was decided before the second phase of proceedings had commenced before Magistrate Judge Facciola. Following a status conference to discuss the status of the case, this Court ordered that the second phase proceedings should continue unaltered, but that plaintiffs would be required to submit a brief addressing the viability of their claims and the jurisdiction of this Court in light of Cicippio-Puleo. See Order of Jan. 22, 2004. While the second phase of the case was proceeding forward, and plaintiffs were briefing the Cicippio-Puleo issues, the D.C. Circuit issued another FSIA decision holding that a plaintiff cannot state a cause of action against a state sponsor of terrorism merely by referencing the"generic common law," but instead"must identify a particular cause of action arising out of a specific source of law." Acree, 370 F.3d at 58.

Plaintiffs have now submitted their brief in response to this Court's January 22, 2004, order. In this submission, plaintiffs maintain that even after Cicippio-Puleo and Acree, their allegations continue to support a cause of action under any number of sources of law, including the Torture Victims Protection Act (28 U.S.C. § 1350 note), the Flatow Amendment, federal common law, state common and statutory law, and norms of international law. The D.C. Circuit has issued two more decisions interpreting section 1605(a)(7) in the months since plaintiffs' filing. See Price v. Socialist People's Libyan Arab Jamahiriya, 389 F.3d 192 (D.C. Cir. 2004); Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123 (D.C. Cir. 2004). The second phase of proceedings before Magistrate Judge Facciola is now complete, and he has stayed issuing his findings of fact and conclusions of law as to the remaining plaintiffs until this Court rules on the pending legal issues in the case. See Order of July 28, 2004.

In the sections that follow, this Court outlines its conclusions of law and the legal principles that will steer the case in the months to come. The Court also describes the procedures that will guide the case to its conclusion.

ANALYSIS

Although the lines may sometimes blur, every case brought against a foreign state raises two very distinct legal questions. See Price, 389 F.3d at 199; Cicippio-Puleo, 353 F.3d at 1029-30. The first question is the jurisdiction to hear the claim. In the context of the FSIA, this question principally requires a court to determine whether the case falls within one of the statutory exceptions to the sovereign immunity of a foreign state. See Kilburn, 376 F.3d at 1126-27; Simpson v. Socialist People's Libyan Arab Jamahiriya, 326 F.3d 230, 232 (D.C. Cir. 2003). The second question is the liability of the defendant foreign sovereign. Under this inquiry, the court must assess what, if any, causes of action the plaintiff may bring against the defendant, and whether the foreign state is liable on any of those claims. See Kilburn, 376 F.3d at 1133-36; Cicippio-Puleo, 353 F.3d at 1029-30.

I. Jurisdiction

The Foreign Sovereign Immunities Act establishes the broad rule that foreign states*fn3 are immune from suit in United States courts. See 28 U.S.C. § 1604 ("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."). The statute also sets out certain exceptions to this rule for limited categories of cases. See id. § 1605. The most recent of the exceptions in the statute was enacted in 1996 and revokes the sovereign immunity of a foreign state that sponsors acts of terrorism. See Pub.L. No. 104-132, § 221, 110 Stat. 1214 (codified at 28 U.S.C. § 1605(a)(7)).

This exception provides that a foreign state"shall not be immune from the jurisdiction of courts of the United States or of the States in any case" where money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extra-judicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources... for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency. 28 U.S.C. § 1605(a)(7). This provision applies to a foreign state only if three other criteria in the statute are met as well: the foreign state was designated a state sponsor of terrorism at the time of the terrorist act or as a result of the act, the foreign state was afforded a reasonable opportunity to arbitrate the claim if the act occurred within the foreign state against which the claim has been brought, and either the claimant or the victim was a national of the United States at the time of the terrorist act. See id. § 1605(a)(7)(A), (B); see Kilburn, 376 F.3d at 1127; Dammarell, 281 F. Supp. 2d at 191.

In its earlier opinion, this Court concluded that these requirements were undeniably satisfied in this case. See Dammarell, 281 F. Supp. 2d at 191-92. Iran was designated a state sponsor of terrorism as a result of the April 18, 2003 Embassy bombing, and Iran has remained on the State Department list of state sponsors of terrorism ever since. See 22 C.F.R. § 126.1(d); 31 C.F.R. § 596.201. The bombing did not occur within the territory of Iran. All of the plaintiffs are citizens of the United States (or the estates of citizens of the United States), and the victims of the bombing were injured or killed as a result of an act of extra-judicial killing.*fn4 *fn5

Finally, it is evident that Iran and the MOIS provided "material support or resources" for the killing within the meaning of section 1605(a)(7). One expert witness explained at trial that there was "no question that Iran was responsible for the selection of the target, provided much of the information of how to carry out the bombing, the expertise for how to build the bomb, the political direction that said that this was an important target to bomb, [and] provided financial support for the bombers." Dammarell, 281 F. Supp. 2d at 112. Another witness who coordinated the State Department's counter-terrorism efforts and was tasked with investigating who was responsible for the Beirut embassy bombing, expressed his"confidence that the government of Iran was involved directly in the Hisballah organization, which was created, armed, trained, protected, [and] provided technical assistance by the Iranian Revolutionary Guards." Id. This Court concluded that the evidence adduced at trial"leaves no doubt that Iran and MOIS are responsible for the bombing," and therefore these entities have lost their sovereign immunity for purposes of this case under section 1605(a)(7). Id. at 192.*fn6

Nothing in the D.C. Circuit's more recent decisions suggests a contrary result. Indeed, in one of the decisions the court states explicitly that"it is clear that the District Court had jurisdiction" of a suit against Iran and the MOIS for their material support of Hizbollah's taking hostage of a United States citizen"pursuant to the statutory waiver of sovereign immunity under 28 U.S.C. § 1605(a)(7)." Cicippio-Puleo, 353 F.3d at 1030. The others hold that a plaintiff need not show that a foreign state's material support was the"but for" cause of an alleged victim's injuries (proximate causation is sufficient), or that it went directly to the specific terrorist act giving rise to the claim, Kilburn, 376 F.3d at 1126-31, and that a defendant cannot show that a case falls outside of section 1605(a)(7) merely by identifying minor variations or inconsistencies in the plaintiff's complaint, Price, 389 F.3d at 198.

These holdings do not undermine in any way the conclusion that Iran and the MOIS are susceptible to suit in this case. The evidence presented at trial shows unquestionably that Iran and the MOIS provided material support to Hizbollah, and that this support was a proximate cause of the 1983 Beirut embassy bombing and the deaths and injuries that resulted. See Dammarell, 281 F. Supp. 2d at 108-113. With the ongoing assistance of Iran and the MOIS, Hizbollah"evolved into one of the most capable and professional terrorist organizations in the world," and Iran and the MOIS played a"central role" in the planning of the particular embassy bombing giving rise to the action in this case. Id. at 111. Accordingly, the Court reaffirms its prior holding that section 1605(a)(7) removes the sovereign immunity of Iran and the MOIS for their role in the bombing.

II. Liability

Having concluded that defendants are not immune from suit, the Court turns to a discussion of the causes of action that are permitted against a foreign state for its sponsorship of terrorism. Section 1605(a)(7) only removes the immunity of a foreign state; it does not itself describe a cause of action against the foreign state. See Cicippio-Puleo, 353 F.3d at 1032. Therefore, a plaintiff must look elsewhere for a cause of action, and in its earlier opinion, the Court concluded that plaintiffs state a viable cause of action against Iran and the MOIS under the Flatow Amendment to the FSIA. The Court noted that"[e]ven if the Flatow Amendment were held not to create a federal statutory cause of action against state sponsors of terrorism, plaintiffs nevertheless would have valid claims against Iran and the MOIS"under state and/or federal common law." Dammarell, 281 F. Supp. 2d at 193.

Two recent D.C. Circuit decisions require the Court to re-examine these holdings. In the first case, the court held that"neither 28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two considered in tandem, creates a private right of action against a foreign government." Cicippio-Puleo, 353 F.3d at 1033. In the second case, the court explained that"generic common law cannot be the source of a federal cause of action" against a foreign state. Acree, 370 F. 3d at 58. These decisions expressly leave open the question whether a cause of action against a foreign nation might exist under"some other source of law, including state law," Cicippio-Puleo, 353 F.3d at 1036, and can even be read to leave open the possibility that, although the Flatow Amendment does not give rise to a cause of action of its own force, it might do so through other statutes, id. at 1033.*fn7

Plaintiffs maintain that there are several causes of action available against foreign states consistent with the D.C. Circuit's recent rulings. They propose that causes of action exist under state common and statutory law, federal common law, the law of foreign countries, the Torture Victims Protection Act, and even the Flatow Amendment (through section 1606 of the FSIA).

The Court will examine each of these potential sources of a cause of action against a foreign state in a moment. To determine the claims that a plaintiff may assert against a state sponsor of terrorism under the FSIA, however, the Court finds it necessary to begin first with the passage of the FSIA itself and an examination of the jurisprudence that developed in its wake.

A. Interpretation of the FSIA Prior to Section 1605(a)(7)

The FSIA was enacted in 1976. As noted earlier, the statute simultaneously granted foreign states immunity from suit in the United States and withdrew that immunity for certain designated classes of cases. The legislative history of the statute reveals that it was enacted to create "comprehensive rules" regarding the immunity of foreign states from suit and discontinue "the practice of judicial deference to suggestions of immunity from the executive branch." H.R. Rep. No. 94-1487, at 11 (1976). The statute was "not intended to affect the substantive law of liability" or "the attribution of responsibility between or among entities of a foreign state; for example, whether the proper entity of a foreign state has been sued; or whether an entity sued is liable in whole or in part for the claimed wrong." Id. As one sponsor of the statute described it,"this bill deals only with jurisdiction; the substantive law of liability would remain unchanged." 122 Cong. Rec. 17462 (June 10, 1976).

Consistent with these principles, the statute contained a provision directing courts to existing causes of action in determining the liability of a foreign state. Section 1606 of the statute provided in full at the time of enactment, and continues to provide to this day, as follows:

As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances; but a foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages; if, however, in any case wherein death was caused, the law of the place where the action or omission occurred provides, or has been construed to provide, for damages only punitive in nature, the foreign state shall be liable for actual or compensatory damages measured by the pecuniary injuries resulting from such death which were incurred by the persons for whose benefit the action was brought.

Pub.L. 94-583, § 4(a), 90 Stat. 2894 (codified at 28 U.S.C. § 1606) (emphasis added). The legislative history of this section is unrevealing, suggesting only that the provision was intended to"make clear" what should have been true in any event:"if the foreign state, political subdivision, agency or instrumentality is not entitled to immunity from jurisdiction, liability exists as it would for a private party under like circumstances." H.R. Rep. No. 94-1487, at 22 (1976).

As enacted, the statute contained exceptions to the sovereign immunity of a foreign state for actions to enforce maritime liens, expropriation claims, and others. The two broadest exceptions were section 1605(a)(2), which withdrew foreign sovereign immunity in suits arising out of commercial activities with a connection to the United States, and section 1605(a)(5), which removed the immunity of a foreign state for noncommercial torts committed in the United States. Long before the addition of section 1605(a)(7), courts addressing claims arising out of section 1605(a)(2) (the"commercial activities" exception) and section 1605(a)(5) (the"noncommercial torts" exception) developed a clear and straightforward method of determining the causes of action that may be asserted against a foreign state under the FSIA.

Consistent with its plain text, section 1606 was read as a"portal" or"pass-through" to the causes of action that would exist against a private individual in like circumstances. That is, courts held that when section 1605 lifts the sovereign immunity of a foreign state, section 1606 allows a plaintiff to bring any claim against the foreign defendant that the plaintiff could have brought in like circumstances were the defendant a private individual. See, e.g., First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 621 (1983) ("Where state law provides a rule of liability governing private individuals, the FSIA requires the application of that rule to foreign states in like circumstances."); Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 12 (2d Cir. 1996) ("[T]he FSIA... operates as a'pass-through' to state law principles.").

As these cases suggest, interpreting section 1606 as a pass-through often leads to the application of state law in damages actions against foreign states. See, e.g., Schoenberg v. Exportadora de Sal, S.A. de C.V., 930 F.2d 777, 782 (9th Cir. 1991) (applying California law to wrongful death action against company owned by Mexican government); Pittston Co. v. Allianz Ins. Co., 795 F. Supp. 678, 687-88 (D.N.J. 1992) (applying New Jersey law to contract claims brought against insurance company wholly owned by the Government of Ireland). To this day, it is customary for courts to look to state law for the causes of action under the"commercial activities" and"non-commercial torts" exceptions to the FSIA. See, e.g., Maalouf v. The Swiss Confederation, 208 F. Supp. 2d 31, 34 (D.D.C. 2002) (applying District of Columbia law to tort claim against Swiss government arising out of sledding accident on Swedish embassy grounds); Nazarian v. Compagnie Nationale Air France, 989 F. Supp. 504, 510 (S.D.N.Y. 1998) (applying New York law to claims of negligence for defendant airline's detention of plaintiffs brought under commercial activity exception to FSIA); In re Aircrash Disaster Near Roselawn, Indiana, 948 F. Supp. 747, 758 (N.D. Ill. 1996) (applying state law in FSIA action brought by survivors of passengers who died in airplane crash against airplane manufacturers owned by foreign states).*fn8

However, state law is not the exclusive source of a right of action under the FSIA. Where plaintiffs would be able to bring federal claims against a private individual in like circumstances, and where such a result would not be inconsistent with the will of Congress, courts have not hesitated to permit those claims to proceed against foreign states as well. See, e.g., Southway v. Cent. Bank of Nigeria, 198 F.3d 1210, 1216 (10th Cir. 1999) ("[W]e hold that the FSIA confers subject-matter jurisdiction upon the district court over civil RICO claims against foreign states, their agencies, and instrumentalities, provided that the commercial activity exception, or another exception contained in §§ 1605-07 of the FSIA applies."); Mukaddam v. Permanent Mission of Saudi Arabia, 111 F. Supp. 2d 457, 470 (S.D.N.Y. 2000) (foreign state"is liable under Title VII in the same manner and to the same extent as a private employer would be in like circumstances"); Outboard Marine Corp. v. Pezetel, 461 F. Supp. 384, 396 (D. Del. 1978) (plaintiffs may bring damages action for violation of federal antitrust laws against company claiming to be an agency of foreign state pursuant to"commercial activity" exception to FSIA).

Courts have even concluded, where choice of law rules require, that the law of a foreign state should provide the legal principles in a claim against a foreign state. See Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1004 (9th Cir. 1987) (applying Polish law to determine damages in wrongful death action against Polish airline relating to airplane crash in Poland); Walpex Trading Co. v. Yacimientos Petroliferos Fiscales Bolivianos, 756 F. Supp. 136 (S.D.N.Y. 1991) (applying Bolivian law to action brought by American company against Bolivian government-owned purchaser for breach of contract for sale of piping to be used by Bolivian oil industry). In fact, it appears that the only source of law not to furnish a right of action against a foreign state under the"commercial activities" and"non-commercial torts" exceptions to the FSIA is the federal common law, precisely -- it would seem -- because the federal common law so rarely supplies a cause of action in litigation involving purely private litigants. See, e.g., O'Melveny & Myers v. Fed. Deposit Ins. Co., 512 U.S. 79, 87, 89 (1994) (holding that the use of the federal common law is appropriate only in"extraordinary" cases); In re Aircrash Disaster, 948 F. Supp. at 758 (refusing to apply federal common law in FSIA action brought by survivors of passengers killed in airplane crash against airplane manufacturers owned by foreign states because a"bare desire to achieve an identical result in every case is insufficient to override the interest of each injured person's domiciliary state").

This was the legal landscape when section 1605(a)(7) was added to the FSIA in 1996. Through section 1606, plaintiffs were permitted to advance claims against a foreign state under state common law or statutory law, federal statutory law, or even the law of a foreign state, provided that a similar claim ...


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