The opinion of the court was delivered by: Emmet G. Sullivan United States District Court Judge
This case represents the latest in a series of attempts by plaintiffs, who were taken hostage by the government of the Islamic Republic of Iran in 1979, to hold that country responsible for their tremendous suffering. Plaintiffs have attempted to sue Iran at various times since 1983, without success. See, e.g., Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984); McKeel v. Islamic Republic of Iran, 722 F.2d 582 (9th Cir. 1983); Ledgerwood v. State of Iran, 617 F. Supp. 311 (D.D.C. 1985). Plaintiffs again filed suit in this Court in 2000, in Roeder v. Islamic Republic of Iran, Civ. Action No. 00-3110(EGS) (hereinafter "Roeder I"). In April 2002, this Court dismissed plaintiffs' claims. See Roeder I, 195 F. Supp. 2d 140 (D.D.C. 2002). This Court held that the Foreign Sovereign Immunities Act ("FSIA"), as it existed in 2002, did not create a private right of action against the government of Iran and accordingly that plaintiffs could not pursue their claims against Iran. The Court of Appeals affirmed the decision in 2003. See Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003) (also referenced herein as Roeder I).
In their previous cases, including Roeder I, plaintiffs have been thwarted by the Algiers Accords, the 1981 executive, bi-lateral agreement between the United States and Iran that secured the hostages' release. Both the Algiers Accords and its implementing regulations contain express prohibitions barring lawsuits arising out of the hostage taking. As this Court and the Court of Appeals explained in Roeder I, Congress has the authority to abrogate the Algiers Accords; however, it must act clearly and unambiguously to do so. See Roeder I, 195 F. Supp. 2d at 168-170, aff'd 333 F.3d 237-238. In Roeder I, this Circuit concluded that as of 2002 Congress had not acted clearly or unambiguously, and thus dismissed plaintiffs' claims. See 195 F. Supp.2d at 166; aff'd 333 F.3d at 238.
Now, several years later, plaintiffs have returned to this Court and filed the instant case (hereinafter "Roeder II"). Plaintiffs argue that in the years since Roeder I was decided, Congress has created a private right of action which enables them to proceed with a lawsuit against Iran. Specifically, they 2 argue that by enacting the National Defense Authorization Act for Fiscal Year 2008, Congress has finally spoken clearly and unambiguously, and created a cause of action to enable them to sue Iran for damages. Compl. ¶ 20. The United States intervened and shortly thereafter filed a motion to dismiss, arguing that once again, Congress has failed to act with sufficient clarity to abrogate the Algiers Accords. This Court is thus confronted with the same fundamental question it faced in 2002: whether Congress has acted definitively to abrogate the Algiers Accords and enable plaintiffs to move forward in their suit for damages. With an equal measure of frustration, regret, and compassion the Court must conclude, once again, that Congress has failed to provide plaintiffs with a cause of action against Iran. Accordingly, this Court is not empowered to provide plaintiffs the relief they seek and the United States' motion to dismiss must be GRANTED.
A. Roeder I, and the State of the Law When it Was Decided
As set forth above, this Court does not write on a clean slate: this case, like Roeder I, rests squarely on whether Congress has abrogated the Algiers Accords. As explained in Roeder I, the Algiers Accords is an international executive agreement the United States entered into with the Islamic Republic of Iran on January 19, 1981, in order to obtain the freedom of the plaintiff hostages. Among other commitments contained in the agreement, the United States agreed to "bar and preclude the prosecution against Iran of any pending or future claim of... a United States national arising out of the events... related to (A) the seizure of the 52 United States nationals on November 4, 1979, [and] (B) their subsequent detention." Declaration of the Government of the Democratic and Popular Republic of Algeria, ¶ 11 (reprinted at 20 I.L.M. 223, 227).
The Roeder I courts explained that a statute must satisfy one of two criteria to overturn a previously-enacted international agreement such as the Algiers Accords. First, if a later statute unambiguously conflicts with the international agreement on its face, the unambiguous later statute will prevail. See Roeder I, 195 F. Supp. 2d at 170 (citing Reid v. Covert, 354 U.S. 1, 17 (1957); Whitney v. Robertson, 124 U.S. 190, 191 (1888); Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 936-37 (D.C. Cir. 1988); South African Airways v. Dole, 817 F.2d 119, 126 (D.C. Cir. 1987)). If the statute is ambiguous, however, a Court will not interpret it to modify or abrogate a treaty or executive agreement "unless such purpose of Congress has been clearly expressed." Bennett v. Islamic Republic of Iran, No. 09-5147, 2010 WL 3515811 at *4 (D.C. Cir. Sept. 10, 2010) (quotation 4 omitted, citing Roeder I, 333 F.3d at 237). As the Court of Appeals explained:
Executive agreements are essentially contracts between nations, and like contracts between individuals, executive agreements are expected to be honored by the parties. Congress (or the President acting alone) may abrogate an executive agreement, but legislation must be clear to ensure that Congress - and the President -have considered the consequences. The requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision. Roeder I, 333 F.3d at 238 (internal citation omitted).
Accordingly, in Roeder I, the courts determined that an Act of Congress will only abrogate the Algiers Accords' bar to the hostages' ability to sue if it (1) clearly and unambiguously gives the Court subject matter jurisdiction to hear plaintiffs' case, and (2) clearly and unambiguously creates a cause of action against Iran for the 1979 hostage taking. See Roeder I, 195 F. Supp. 2d at 163, 167, aff'd 333 F.3d at 236-237. This Court found, and the D.C. Circuit affirmed, that when Roeder I was decided, Congress had provided the first, but not the second. The Roeder I courts' analysis of subject matter jurisdiction and private rights of action are briefly summarized in turn.
As a general matter, the FSIA grants foreign states immunity from liability in United States courts. Federal courts thus generally lack subject matter jurisdiction over claims against a foreign state. Congress has, however, provided several specific exceptions to this immunity. See 28 U.S.C. § 1604; see also Roeder I, 333 F.3d at 235. The Anti-Terrorism Act of 1996 created one such exception, and allowed jurisdiction over foreign states for certain state-sponsored acts of terrorism. See 28 U.S.C. § 1605(a)(7) (1996). Initially, the 1979 hostage-taking of the Roeder I plaintiffs did not fall within that exception; however, Congress amended the law in 2001 to specifically waive sovereign immunity for acts "related to Case Number 1:00CV03110(EGS)*fn1 in the United States District Court for the District of Columbia." Pub. L. 107-77, 115 Stat. 748 (2001) ("Section 626(c)"). Thus, Section 626(c) amended the FSIA to remove sovereign immunity and create jurisdiction for any acts that related to Roeder I. See 195 F. Supp. 2d at 163; aff'd 333 F.3d at 235. The Roeder I courts found that Congress had therefore clearly and unambiguously created subject matter jurisdiction for plaintiffs' claims to be heard in this Court.
The Roeder I courts next turned to the question of whether the 2001 amendments to the FSIA unambiguously created a cause of action for plaintiffs to sue Iran. The courts found that Congress had not unambiguously created such a cause of action. As this Court explained, while the exceptions to sovereign immunity "allowed federal courts to have jurisdiction over claims against foreign governments arising [out] of state sponsored terrorist activity.... [w]hat the [exceptions] did not do was create a private cause of action for the victims of state-sponsored terrorism. Like all the other exceptions to foreign sovereign immunity in the FSIA, victims of state-sponsored terrorism had to look to other laws to provide a cause of action against the foreign state." Roeder I, 195 F. Supp. 2d. at 171 (citations omitted). When Roeder I was decided, the sole unambiguous private cause of action for victims of terrorism under federal law was conferred by the Flatow Amendment of 1996, 28 U.S.C. § 1605 note, which only provided "a private right of action against officials, employees and agents of a foreign state, not against the foreign state itself." Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C. Cir. 2004)(superseded by statute); see also In re: Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 46 (D.D.C. 2009). The 2001 amendments to the FSIA did not clearly expand this cause of action.
As such, the courts found that the 2001 amendments to the FSIA were ambiguous. While it was possible to interpret the amendments as creating a new private right of action for plaintiffs, it was equally plausible to read the amendments to confer subject matter jurisdiction over the lawsuit but not to create a cause of action for plaintiffs to sue the state of Iran. See 195 F. Supp. 2d at 171; aff'd 333 F.3d at 236. Because the Courts found the statutory text ambiguous, they examined the statute and the legislative history to determine whether Congress expressed a clear intent to abrogate the Algiers Accords. See id. Neither this Court nor the D.C. Circuit found a sufficiently clear manifestation of congressional intent. Accordingly, because Congress had neither created an unambiguous cause of action nor demonstrated a clear intent to abrogate the Algiers Accords, plaintiffs were barred from pursuing their claims against the Islamic Republic of Iran in Roeder I.
B. Congressional Efforts After Roeder I, and the Existing State of the Law.
Following Roeder I, several bills were introduced in Congress which, if enacted, would have undoubtedly provided the 1979 hostages with a viable means to sue Iran. In a 2008 Report for Congress, the Congressional Research Service details attempts in the 107th, 108th, 109th, and 110th sessions of Congress "to enact legislation that would explicitly abrogate the provision of the Algiers Accords barring the hostages' suit." JENNIFER K. ELSEA, CONGRESSIONAL RESEARCH SERV., SUITS AGAINST TERRORIST STATES BY VICTIMS OF TERRORISM (2008), p. CRS-31, available at http://www.fas.org/sgp/crs/terror/RL31258.pdf. As set forth more fully in the Report, Congress has considered multiple bills containing language expressly nullifying the relevant provisions of the Algiers Accords. Id. at CRS-31, -32. None of that language, however, was enacted into law. Id.
Rather, in January of 2008, Congress enacted and the President signed into law the National Defense Authorization Act of 2008 ("NDAA"), Pub. L. 110-181, 122 Stat. 3 (2008), which precipitated the filing of the instant lawsuit. For the purposes of resolving the issues in this case, the only relevant provision is Section 1083, which has been codified at 28 U.S.C. § 1605A. The Court will provide a brief overview of the three relevant provisions of § 1083 here; detailed analysis of each provision will be set forth infra.
Title 28 U.S.C. § 1605A(a) reformulates the terrorism exceptions to sovereign immunity. It incorporates one new provision that encompasses both: (1) the terrorism exception to the jurisdictional immunity of a foreign state, which originally appeared in the Anti-Terrorism Act of 1996, and (2) the specific exception to sovereign immunity for Roeder I that was set forth in § 626(c).
ii. 28 U.S.C. §§ 1605A(c) and 1605A Note
Title 28 U.S.C. § 1605A(c) is titled "Private Right of Action." It creates a cause of action for damages against a "foreign state that is or was a state sponsor of terrorism" under certain circumstances which are set forth elsewhere in the statute. See 28 U.S.C. § 1605A(c). Only one such circumstance is relevant for the purposes of this case. This circumstance is set forth at Section 1083(c) of the NDAA, codified as 28 U.S.C. § 1605A note, and provides that certain cases that are otherwise time-barred may be filed or refiled under the new statute.
Section 1083(c) delineates the scope of retroactive relief available under § 1605A. It sets forth two situations where the NDAA may apply to cases filed prior to its enactment. First, section 1083(c)(2), titled "Prior Actions," provides that certain cases which were still pending before the courts under the preceding statutory scheme when the NDAA was enacted may be refiled under the NDAA. By refiling, claimants may take advantage of the new statute's provisions, which are significantly more favorable to terrorism plaintiffs in general. Second, section 1083(c)(3), titled "Related Actions," provides that certain new actions may be filed under the NDAA if they arose out of the same act or incident as cases filed under the previous statutory scheme. It reads, in relevant part,
(3) RELATED ACTIONS. - If an action arising out of an act or incident has been timely commenced under section 1605(a)(7) of title 28, United States Code... any other action arising out of the same act or incident may be brought under section 1605A of title 28, United States Code [this section], if the action is commenced not later than the latter of 60 days after -
(A) the date of the entry of judgment in the original action; or
(B) the date of the enactment of this Act [Jan. 28, 2008].
Taken together, § 1605A(c) and § 1083(c)(3) provide a cause of action against state sponsors of terrorism in otherwise-untimely new actions under the NDAA - not refiled old ones - so long as the new action is "related" to another action that has been timely commenced under the FSIA and Anti-Terrorism Act of 1996.
On March 21, 2008, plaintiffs commenced this action against the Islamic Republic of Iran alleging violations of 28 U.S.C. § 1605A. They assert that Roeder II is "related" to Roeder I, as defined in Section 1083(c)(3) of the NDAA (28 U.S.C. § 1605A note) and therefore that they have a cause of action under § 1605A(c). Compl. p. 2, see also ¶¶ 21-24. Specifically, they allege that "[t]his action is a related action to Roeder v. Islamic Republic of Iran, et al., Case No. 1:00CV03110(EGS), and arises out of the same act or incident which was timely commenced under section 1605(a)(7) of title 28 in this Court.
As such, this action qualifies as a related action under 28 U.S.C. § 1605A." Compl. p. 2. They seek 6.6 billion dollars in compensatory and punitive damages.
In light of the events of Roeder I, namely Iran's refusal to appear in this Court and the United States' last minute intervention in the litigation, the Court extended an invitation to the Department of State to "file a statement of interest in the present case, if appropriate, pursuant to 28 U.S.C. § 517." Doc. No. 7, Letter from Hon. Emmet G. Sullivan to John B. Bellinger III, Legal Advisor, U.S. Department of State, April 11, 2008. The government responded in June 2008, stating that if plaintiffs were able to perfect service on Iran and the case were to go forward, "the United States may well have an interest in participating in this litigation." Doc. No. 11, Report of United States, June 13, 2008.
Plaintiffs served Iran at the end of November 2008, but Iran elected not to appear. In April 2009, plaintiffs filed a motion for default judgment as to liability. Immediately thereafter, the United States moved to intervene in this lawsuit and subsequently filed a motion to dismiss. In early October 2009, plaintiffs filed a notice of supplemental authority: In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31 (D.D.C. 2009). Following briefing on this supplemental authority, this Court heard oral argument on the government's motion to dismiss on April 21, 2010. At the hearing, the Court expressed its concern about the lack of clarity in § 1083. The Court continued the motions hearing for 30 days and directed the parties to inform the Court in the event of any further Congressional developments. The Court reconvened the hearing on May 27, 2010, confirmed with the parties that no Congressional action had been taken, and took the case under advisement. The parties' motions are now ripe for resolution by the Court.
Pending before the Court is the United States' motion to dismiss for failure to state a claim. In its motion to dismiss, the government concedes that § 1083 of the NDAA provides a cause of action against Iran under certain circumstances, but argues that those circumstances do not unambiguously include plaintiffs' case. Thus, the government argues, Congress has not clearly abrogated the Algiers Accords' substantive bar to this litigation. The United States argues that while § 1083 creates substantive rights for other victims of terrorism, it did not cure the 1979 hostages' inability to pursue claims against Iran. Plaintiffs raise three main arguments in opposition. First, they argue that Congress unambiguously created a private right of action for plaintiffs, in particular, to sue Iran pursuant to § 1605A(a)(2)(b). Alternatively, plaintiffs argue that § 1605A(c) and NDAA section 1083(c), taken together, unambiguously create a cause of action because Roeder I qualifies as a "related action" to Roeder II as that ...