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Strange v. Islamic Republic of Iran

United States District Court, District of Columbia

August 7, 2018

CHARLES STRANGE, et al, Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, et al, Defendants.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

         Plaintiffs 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 1.

         At the 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.' Brief”).

         The 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.

         I. LEGAL STANDARD

         This 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).

         II. DISCUSSION

         Plaintiffs 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 merit.

         A. Commercial Activity Exception

         First, 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.

         Plaintiffs 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.

         There 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)).

         The 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”).

         Plaintiffs 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 ...


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