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Baumel v. Syrian Arab Republic

May 8, 2008

ZACHARY BAUMEL, ET AL., PLAINTIFFS,
v.
SYRIAN ARAB REPUBLIC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Zachary Baumel, by his next friends, Stuart Ditchek, Jonah Baumel, Miriam Baumel, Osna Baumel, and Shimon Baumel (collectively, "Plaintiffs") filed a complaint in this matter on April 14, 2006. The complaint alleges that Zachary Baumel, a United States citizen, is currently being held by Defendants at an unknown location in Syria or Lebanon as a victim of "hostage taking" as defined in Section 3 of the Torture Victims Protection Act of 1991. Compl. ¶ 3; 28 U.S.C. §§ 1605(a)(7)*fn1 and 1605(e)(1) (2006). Plaintiffs are seeking, inter alia, compensatory and punitive damages against all Defendants. The named Defendants consist of the Syrian Arab Republic, the Popular Front for the Liberation of Palestine, and the following individuals: Syrian President Bashar Al-Assad; Syrian Foreign Minister Imad Moustapha; former Syrian Foreign Minister Farouq AlShaara; former Syrian Defense Minister Moustapha Tlaas; "former high-ranking member of the Syrian Military," Rifaat Assad; John Doe # 1, as Representative of the Estate of Hafez Al-Assad; and Achmed Jibril, leader of the Popular Front for the Liberation of Palestine.*fn2

Before the Court is Plaintiffs' Motion for the Court to Direct Service Pursuant to the Foreign Sovereign Immunities Act ("Pls.' Mem."). See Dkt. # 8. Plaintiffs request an order pursuant to 28 U.S.C. § 1608(b)(3)(C) permitting them to serve a summons and the complaint in this action on certain Defendants*fn3 by delivering them to the Embassy of Syria in the District of Columbia by licensed process server, or by such other means as the Court may direct.

On April 11, 2008, the Court issued an Order directing Plaintiffs to file a supplemental brief to address certain questions and concerns of the Court. Plaintiffs filed a Supplemental Memorandum in Further Support of Motion for the Court to Direct Service Pursuant to the Foreign Sovereign Immunities Act ("Pls.' Supp. Mem."), see Dkt. # 12, on April 24, 2008, along with the Affidavit of Stuart Ditchek in Further Support of the Motion for the Court to Direct Service Pursuant to the Foreign Sovereign Immunities Act ("Ditchek Aff."), see Dkt. # 13.

I. BACKGROUND

The Foreign Sovereign Immunities Act ("FSIA") "provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989). 28 U.S.C. § 1608 sets forth the requirements for sufficient service under the FSIA. 28 U.S.C. § 1608(a) provides the service requirements for a "foreign state or political subdivision of a foreign state." Service upon an agency or instrumentality of a foreign state is governed by 28 U.S.C. § 1608(b).

On August 8, 2006, Defendants Bashar Al-Assad, John Doe #1 (as Representative of The Estate of Hafez Al-Assad), Rifaat Assad, Farouq Al-Shaara, and Moustapha Tlaas were each sent the summons and complaint via registered mail, return receipt requested, pursuant to 28 U.S.C. § 1608(b)(3)(B). See Pls.' Mem. ¶ 2. On August 10, 2006, Defendant Imad Moustapha was served with the summons and complaint via certified mail, return receipt requested, pursuant to 28 U.S.C. § 1608(b)(3)(B). Id. ¶ 3. Return receipts were never returned to Plaintiffs. Id. ¶ 4. Plaintiffs "have yet to receive responses from any Defendants and cannot confirm Defendants' receipt of the summons and complaint." Id. ¶ 11.

Plaintiffs propose serving the summons and complaint in this action on the individual Defendant "agencies and instrumentalities" under § 1608(b)(3)(C) by delivering them to the Embassy of Syria in the District of Columbia by licensed process server. In the alternative, Plaintiffs request a declaration that any or all of the Defendants be treated as the foreign state of Syria and are therefore subject to service by the Secretary of State of the United States pursuant to 28 U.S.C. § 1608(a). See Pls.' Supp. Mem. at 2.

II. LEGAL STANDARDS

Questions of whether service should be accomplished through § 1608(a), for a foreign state or political subdivision, or § 1608(b), for an agency or instrumentality, are decided by a "core functions" test. See Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003) (citing Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 149-50 (D.C. Cir. 1994)). "[I]f the core functions of the entity are governmental, it is considered the state itself; if commercial, the entity is an agency or instrumentality of the foreign state." Roeder, 333 F.3d at 234. The distinction is an important one. "[S]section 1608(a) 'sets forth the exclusive procedures for service on a foreign state, but contains no such admonition for section 1608(b). Section 1608(b)(3) allows simply delivery 'if reasonably calculated to give actual notice,' showing that Congress was there concerned with substance rather than form; but the analogous subsection of section 1608(a) says nothing about actual notice." Transaero, 30 F.3d at 154 (citing H.R. Rep. No. 1487 (1976), at 24, reprinted in 1976 U.S.C.C.A.N. 6604, 6223); id. ("The authorities generally hold that section 1608(b) may be satisfied by technically faulty service that gives adequate notice to the foreign state. . . . [However], strict adherence to the terms of 1608(a) is required.").

III. ANALYSIS

This district court has held that an officer of a foreign state may be treated as the state itself, under the core functions test. See Nikbin v. Islamic Republic of Iran, 471 F. Supp. 2d 53, 67 (D.D.C. 2007). In Nikbin, the court reasoned that the immunity afforded to foreign officers is a "natural outgrowth" of the immunity provided to foreign states since "actions against officers are the practical equivalent of suits against the state itself." Id. at 66; see also Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1034 (D.C. Cir. 2004) ("As the Supreme Court repeatedly has explained, an official-capacity claim against a government official is in substance a claim against the government itself."). The holdings in Nikbin and Cicippio-Puleo inform this Court's decision here.*fn4

A. Defendants Bashar Al-Assad and John Doe # 1

Defendant Bashar Al-Assad (and before him, Mr. Assad's father, Hafez Al-Assad*fn5 is the President of Syria. According to Plaintiffs, "[a]s head of state, [they] assisted, coordinated and directed acts of terrorism within the scope of [their] office, including the actions relating to Zachary Baumel's being held as a hostage and continued captivity." Pls.' Supp. Mem. at 5-6. "Mr. Al-Assad is ...


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