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Fisher v. Great Socialist People's Libyan Arab Jamahiriya

March 27, 2008

CURTIS W. FISHER, ET AL., PLAINTIFFS,
v.
GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, ET AL DEFENDANTS.
LAWRENCE P. FISHER II, ET AL., PLAINTIFFS,
v.
GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, ET AL DEFENDANTS.



MEMORANDUM OPINION AND ORDER

On December 21, 1988, Pan Am Flight 103 exploded 31,000 feet in the air over Lockerbie, Scotland, killing all 259 passengers on board and eleven people on the ground. Among those killed was Charles T. Fisher IV, a United States Citizen. Four of his siblings, Curtis W. Fisher, Mary Fisher Hickey, Margaret Fisher Jones, and Lawrence P. Fisher II (collectively "Fishers"), bring this action,*fn1 against the Great Socialist People's Libyan Arab Jamahiriya and the Libyan External Security Organization (collectively "Libya"), and Abdel Basset Ali Al-Megrahi ("Al-Megrahi"). The Fishers seek to hold defendants liable pursuant to the state-sponsored terrorism exception of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(7), the so-called Flatow Amendment, 28 U.S.C. § 1605 note, and the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 note. The Fishers also assert a cause of action for intentional infliction of emotional distress. Before the court are motions to dismiss by Libya [#33 in 04cv02055 and #17 in 05cv02454] and Al-Megrahi [#14 in 04cv02055].

I. BACKGROUND

Following the December 1988 explosion of Pan Am Flight 103 over Lockerbie, Scotland, the United States and the United Kingdom indicted Al-Megrahi, a high-ranking member of the Libyan External Security Organization, on charges that he planned and executed the bombing. By agreement between the United States, the United Kingdom, and Libya, Al-Megrahi was tried under Scottish criminal law by a panel of three Scottish judges constituting the High Court of Justiciary at Camp Zeist in The Netherlands.

On January 31, 2001, the Scottish panel unanimously convicted Al-Megrahi of the murders of all 270 victims for his role in the bombing. Al-Megrahi's conviction was unanimously affirmed by the Appeal Court of the High Court of Justiciary on March 14, 2002.

On August 15, 2003, the Chargé d'Affaires of the Permanent Mission of Libya to the United Nations issued a statement to the U.N. Security Council that Libya "[h]as facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am 103 and accepts responsibility for the actions of its officials." United Nations Doc. S/2003/818.

The Fishers bring this action seeking compensatory and punitive damages from Libya and Al-Megrahi for their conduct resulting in the death of Charles T. Fisher.

II. ANALYSIS

A. Libya's Motion To Dismiss

1. The Foreign Sovereign Immunities Act and Flatow Amendment

The Fishers assert causes of action against Libya based on the FSIA and the Flatow Amendment. As Libya correctly asserts, neither provision creates a cause of action against a foreign state.*fn2 The FSIA, however, does provide a jurisdictional basis for the Fishers to pursue a cause of action against Libya under some other source of law.

Although the FSIA generally provides foreign states with immunity from suit in U.S. courts, it enumerates several exceptions under which a foreign state may be sued. 28 U.S.C. §§ 1605, 1607. The so-called "state-sponsored terrorism exception," added in 1996, abrogates a foreign state's immunity for personal injuries caused by terrorist acts committed by the state's officials or agents. 28 U.S.C. § 1605(a)(7).*fn3

Five months after creating the state-sponsored terrorism exception, Congress enacted the Flatow Amendment, 28 U.S.C. § 1605 note. The Flatow Amendment provides U.S. nationals with a private cause of action for damages against individual officials, employees, and agents of designated foreign states acting in their personal capacities. 28 U.S.C. § 1605 note.*fn4

Neither the FSIA nor the Flatow Amendment, "nor the two considered in tandem," however, create a cause of action against a foreign state. Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C. Cir. 2004). The FSIA's state-sponsored terrorism exception is purely jurisdictional in that it "merely waives the immunity of a foreign state without creating a cause of action against it." Id. And "the Flatow Amendment only provides a private right of action against officials, employees, and agents of a foreign state, not against the foreign state itself." Id.

The Fishers assert that, pursuant to the Flatow Amendment, Libya should be held liable under the doctrine of respondeat superior for the acts of its agents. This position is unsustainable. What the Fishers suggest is essentially an end-run around the Flatow Amendment's plain language, which is confined to suits against individuals. If Congress had intended to create respondeat superior liability for foreign states under the Flatow Amendment, Congress would have said so. See Cicippio 353 F.3d at 1035-36 (rejecting conclusion in Cronin v. Islamic Republic of Iran, 238 ...


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