United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
in this case allege that Defendants-the Islamic Republic of
Iran, Mahmoud Ahmadinejad, Ayatollah Sayyid Ali Hoseyni
Khamenei, the Army of the Guardians of the Islamic
Revolution, Hamid Karzai, the Afghan Operational Coordination
Group (“OCG”), the Afghan Special Operations Unit
(“ASOU”), the Afghan National Security Forces
(“ANSF”), the Islamic Republic of Afghanistan
(“Afghanistan”), the Taliban, and Al
Qaeda-“purposefully, knowingly, and negligently
participated in the shoot-down or suicide bombing of a
mission named Extortion 17, which resulted in the death of
thirty (30) U.S. servicemen.” Pls.' Mem. in Support
of a Default Judgment, ECF No. 110, at 2. In summary form,
Plaintiffs' lawsuit alleges that the Defendants listed
above conspired together to shoot down (or, alternatively, to
blow up from the inside) a helicopter carrying United States
service members, including Navy SEALS who had recently
participated in the mission to capture and kill Osama Bin
Laden. Plaintiffs claim that “these brave men died
because they were set up by their supposed allies, the Afghan
government and its Security Forces, financed by Iran and its
leaders, as has tragically occurred hundreds of times before
August 6, 2011 and many times since.” Id. at
Court's direction, Plaintiffs have submitted a brief on
the exceptions that they claim apply to the sovereign
immunity of Defendants Afghanistan, OCG, ASOU and ANSF
(collectively, “Afghanistan” or “the
Afghanistan Defendants”). See Pls.' Supp.
Briefing on the Exceptions to the Afghan Defs.' Foreign
Sovereign Immunity, ECF No. 84 (“Pls.'
Court has considered Plaintiffs' submission-as well as
their prior and subsequent pleadings in this case-and has
determined that Plaintiffs have not established that this
Court has subject matter jurisdiction over Plaintiffs'
claims against the Afghanistan Defendants. Those claims only
will accordingly be DISMISSED WITH PREJUDICE.
case implicates the Foreign Sovereign Immunities Act
(“FSIA”). “The FSIA provides a basis for
asserting jurisdiction over foreign nations in the United
States.” Price v. Socialist People's Libyan
Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002).
Pursuant to the FSIA, the Court has “original
jurisdiction” over “nonjury civil
action[s]” against foreign states “without regard
to amount in controversy” if the claims seek
“relief in personam with respect to which the foreign
state is not entitled to immunity either under sections
1605-1607 of this title or under any applicable international
agreement.” 28 U.S.C. § 1330(a). “[A]
foreign state is presumptively immune from the jurisdiction
of United States courts; unless a specified exception
applies, a federal court lacks subject-matter jurisdiction
over a claim against a foreign state.” Saudi Arabia
v. Nelson, 507 U.S. 349, 355 (1993). Contrary to
Plaintiffs' contention that the Court “should not
make the arguments for terrorist Defendants, ”
Pls.' Brief at 15, the Court has an obligation to assure
itself that it has subject matter jurisdiction even though
Defendants have not responded to Plaintiffs' Complaint.
“[E]ven if the foreign state does not enter an
appearance to assert an immunity defense, a District Court
still must determine that immunity is unavailable under the
[FSIA].” Verlinden B.V. v. Cent. Bank of
Nigeria, 461 U.S. 480, 493 n.20 (1983).
claim that two exceptions to the Afghanistan Defendants'
immunity apply. First, they argue that the facts of this case
fall under the FSIA's “commercial activity
exception.” Second, they argue that the Afghanistan
Defendants have waived their immunity. Neither argument has
Commercial Activity Exception
the commercial activity exception does not apply here. That
exception, as relevant to Plaintiffs' argument, states
that “[a] foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States
in any case in which the action is based . . . upon an act
outside the territory of the United States in connection with
a commercial activity of the foreign state elsewhere and that
act causes a direct effect in the United States.” 28
U.S.C. § 1605(a)(2). Plaintiffs have not established
that this case is based upon an act that is “in
connection with” a “commercial” activity.
argument for application of the commercial activity exception
can be summarized as follows: Plaintiffs contend that
“Defendants Afghanistan, the OCG, ANSF, and ASOU,
engage in commercial activity with the United States”
because of the “United States-Afghanistan Trade
Investment Framework Agreement (‘TIFA').”
Pls.' Brief at 8. Plaintiffs explain that TIFA has
“acted as the primary forum for bilateral trade and
investment discussions between the two countries.”
Id. Since the signing of TIFA, Plaintiffs state,
“there has been a significant increase in trade
flows” between the United States and Afghanistan.
Id. “[R]egular meetings of the TIFA Council
ensure the constant development of economic agreements
benefitting both” the United States and Afghanistan.
Id. at 9. Plaintiffs recount that at a “TIFA
meeting, ” the two countries issued a Joint Statement
stating that they both sought to increase investment in
Afghanistan and both agreed on the importance of commercial
investment laws and regulations. Id. at 10-11. Based
on the existence of TIFA, Plaintiffs argue that “[i]t
cannot be any clearer that the United States and Defendant
Afghanistan are in a commercially contractual
relationship.” Id. at 11. And, Plaintiffs
contend, “undoubtedly the commercial nature of the
United States' and Afghanistan's relationship, and
the violations of those commercial contracts, are directly
felt here in the United States.” Id. at 14.
“When the United States agrees to spend $5.1 billion a
year to pay for the army and police-and western donors
continue to give billions more for reconstruction and other
initiatives in a private matter-the premeditated, unprovoked
attacks and murders on plaintiffs' sons, using bullets,
helicopters, and machinery that the United States provides,
is not only a nexus felt in the United States but also a
direct attack on the United States, plaintiffs' sons, and
its citizens.” Id.
are two major problems with this argument. First, two nations
entering into a trade and investment framework agreement is
not a “commercial activity.” “[A] state
engages in commercial activity ‘where it exercises only
those powers that can also be exercised by private citizens,
as distinct from those ‘powers peculiar to
sovereigns.'” Janini v. Kuwait Univ., 43
F.3d 1534, 1537 (D.C. Cir. 1995) (quoting Nelson,
507 U.S. at 360 (internal quotation removed)).
“‘Put differently, a foreign state engages in
commercial activity . . . only where it acts in the manner of
a private player within' the market.'”
Id. In deciding whether a state has acted like a
private player in the market as opposed to a sovereign, the
Court “must examine ‘not whether the foreign
government is acting with a profit motive or instead with the
aim of fulfilling uniquely sovereign objectives' but
‘whether the particular actions that the foreign state
performs (whatever the motive behind them) are the
type of actions by which a private party engages in
trade and traffic or commerce.'” de Csepel v.
Republic of Hungary, 714 F.3d 591, 599 (D.C. Cir. 2013)
(quoting Republic of Argentina v. Weltover, Inc.,
504 U.S. 607, 614 (1992) (emphasis in original)).
TIFA is a trade and investment framework agreed to by two
sovereign nations. By entering into that agreement,
Afghanistan was not exercising powers that a “private
player within the market” could or would exercise.
Private players in the market do not enter into agreements to
encourage positive relations and trade between two countries
and foster positive environments in those countries for
growth and investment. This is something that sovereign
nations do. In fact, to enter into such an agreement
inherently would require the exercise of state authority.
See Beg v. Islamic Republic of Pakistan, 353 F.3d
1323, 1326 (11th Cir. 2003) (“activities requiring
state authority are not commercial”).
cite a string of cases and congressional statements in their
briefing for the proposition that states act like private
players in the market when they enter into contracts for
goods or services, even if the purpose of entering into those
contracts is a public one (for example, buying provisions for
the state's armed forces or leasing vehicles for the
state's mission to the United Nations). See,
e.g., Burnett v. Al Baraka Inv. & Dev.
Corp., 292 F.Supp.2d 9, 18 (D.D.C. 2003) (“a
contract by a foreign government to buy provisions or
equipment for its armed forces or to construct a government
building constitutes a commercial activity”). But these
cases are inapposite, because TIFA is not a contract for
goods or services. TIFA might help foster the growth of
investment and trade which might result in contracts for
goods or services being made, but it is not itself such a
contract. It is an ...