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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 28, 2004 Decided November 23, 2004
No. 03-7095
MICHAEL H. PRICE AND ROGER K. FREY,
APPELLEES
v.
SOCIALIST PEOPLE’S LIBYAN ARAB JAMAHIRIYA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00975)
Arman Dabiri argued the cause and filed the briefs for
appellant.
Andrew C. Hall argued the cause for appellees. With him
on the brief were James Cooper–Hill and Nelson M. Jones.
Stuart H. Newberger argued the cause for amicus curiae
Blake Kilburn, et al. in support of appellees. With him on
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
the brief were Clifton S. Elgarten, Michael L. Martinez, and
F. Ryan Keith. Laurel P. Malson entered an appearance.
Before: GINSBURG, Chief Judge, and EDWARDS and ROBERTS,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Michael Price and Roger Frey sued
the Socialist People’s Libyan Arab Jamahiriya, better known
as Libya, pursuant to the terrorism exception to the Foreign
Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(7),
alleging various causes of action arising from their detention
in that country in 1980. The district court denied Libya’s
motion to dismiss and Libya appeals, arguing that (1) sover-
eign immunity protects it from suit because the plaintiffs, in
depositions in another case, contradicted key allegations in
their complaint here, and in any event (2) Price and Frey
have not stated a cause of action.
We conclude the facts recited in the amended complaint
are, notwithstanding possible tension between them and the
story told in the depositions, sufficient under the terrorism
exception to the FSIA to divest Libya of its immunity from
suit. We do not reach the question whether the complaint
states a cause of action because doing so would require us to
exercise pendent appellate jurisdiction, for which there is no
basis in this case.
I. Background
In 1997 Price and Frey sued Libya, seeking $40 million in
damages for hostage taking and torture, which acts they
argued divested Libya of its immunity pursuant to the terror-
ism exception to the FSIA. Neither party disputes that in
March, 1980 Price and Frey, American citizens working in
Libya for a Libyan company, were arrested in Libya and
charged with taking photographs for an illegal purpose.
Price and Frey were eventually tried and acquitted of the
charge of taking illegal photographs and later were permitted
to leave Libya. Beyond these basic facts, however, it seems
the plaintiffs and Libya, which has not yet had an opportunity
3
fully to tell its side of the story, differ as to many important
details of the plaintiffs’ detention and trial.
Price and Frey maintained in their original complaint that
they were ‘‘incarcerated in prison in Tripoli for TTT 105 days,’’
during which time they were subject to ‘‘physical, mental and
verbal abuse,’’ including being ‘‘[p]rovided inadequate food,’’
‘‘denied any dental care,’’ ‘‘given a urine soaked mattress on
which to sleep,’’ and ‘‘kicked, clubbed and beaten by the
prison guards.’’ The complaint also stated Libyan officials
informed the plaintiffs their incarceration ‘‘was the for the
purpose of demonstrating [Libya’s] support for the govern-
ment of Iran which held hostages in the U.S. embassy in
Teheran.’’
Libya moved to dismiss the plaintiffs’ complaint, contend-
ing: (1) the FSIA is unconstitutional insofar as it delegates to
the Executive Branch legislative authority to determine which
countries are amenable to suit under § 1605(a)(7); (2) the
court’s exercise of personal jurisdiction over Libya would
violate that nation’s right to due process; and (3) the plain-
tiffs failed to state a claim upon which relief could be granted.
The district court denied Libya’s motion, see Price v. Social-
ist People’s Libyan Arab Jamahiriya, 110 F. Supp. 2d 10
(D.D.C. 2000), and Libya pursued an interlocutory appeal,
which we decided in 2002. See Price v. Socialist People’s
Libyan Arab Jamahiriya, 294 F.3d 82 (Price II).
After analyzing the ‘‘stringent definition’’ of ‘‘torture’’ in the
terrorism exception to the FSIA, we observed that the plain-
tiffs’ complaint ‘‘offer[ed] no useful details about the nature of
the TTT beatings [they] allegedly suffered’’ and said ‘‘virtually
nothing about the purpose of the alleged torture.’’ Id. at 93–
94. Accordingly, we remanded the matter to the district
court ‘‘to allow plaintiffs to attempt to amend their complaint’’
so as to bring their claim within the terrorism exception. Id.
at 94. We also held the claim for ‘‘hostage taking’’ should
have been dismissed because ‘‘even when read most favorably
to [the plaintiffs] TTT [the] complaint point[ed] to no nexus
between what happened to [the plaintiffs] in Libya and any
4
concrete concession that Libya may have hoped to extract
from the outside world.’’ Id. at 94.
On remand the district court granted the plaintiffs’ motion
to amend the complaint. As amended, the complaint makes
several new factual allegations pertinent to this appeal, in-
cluding that during ‘‘months of incarceration’’ the plaintiffs
experienced repeated ‘‘extrajudicial acts of torture,’’ including
‘‘continuous[ ] and intentional[ ]’’ beatings and threats of ‘‘se-
vere physical pain’’ and of ‘‘imminent death.’’ The amended
complaint further alleges the plaintiffs were ‘‘forced to watch
either a beating or a killing of a fellow prisoner for the
purposes of forcing [them] to confess to being spies,’’ and that
they were visited by an attorney who told them ‘‘they would
likely receive the death penalty for spying if they did not
confess.’’ Once again Libya moved to dismiss, this time
arguing: (1) our decision in Price II had foreclosed consider-
ation of the claim for hostage taking; (2) the district court
lacked subject matter jurisdiction because key allegations in
the amended complaint were contradicted by depositions the
plaintiffs filed in the case they had brought in New York
against the company that had employed them in Libya; and
(3) the Flatow Amendment, 28 U.S.C. § 1605 (note), a source
of substantive law invoked in the amended complaint, does
not create a cause of action against a foreign state.
After a hearing the district court granted Libya’s motion to
dismiss the claim for hostage taking. Price v. Socialist
People’s Libyan Arab Jamahiriya, 274 F. Supp. 2d 20, 22–23
(D.D.C. 2003) (Price III). With regard to subject matter
jurisdiction, however, the court — applying our instruction in
Phoenix Consulting v. Republic of Angola, 216 F.3d 36
(2000), to go beyond the pleadings insofar as necessary to
resolve disputed facts bearing upon a foreign sovereign’s
immunity — held the amended complaint stated a cause of
action for mental torture within the terrorism exception to
the FSIA. Price III, 274 F. Supp. 2d at 25–26. Finally, the
district court ruled that the Flatow Amendment, in conjunc-
tion with the terrorism exception, created a cause of action
against a foreign state. Id. at 27–29. Again, Libya filed an
interlocutory appeal.
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II. Analysis
Libya makes two alternative arguments. First, Libya con-
tends the district court lacks subject matter jurisdiction
because the factual allegations of the amended complaint
were discredited by inconsistent statements in the plaintiffs’
New York depositions. Second, Libya argues the plaintiffs
failed to state a claim upon which relief can be granted
because, after the district court issued its decision, we held in
Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024
(2004), that the Flatow Amendment does not create a cause of
action against a foreign state.
A. Subject Matter Jurisdiction
Before considering Libya’s contention that the district
court lacks jurisdiction, we begin with a word about our own.
Although 28 U.S.C. § 1291 limits this court’s review to ‘‘final
decisions of the district court,’’ under the collateral order
doctrine a decision of the district court is deemed ‘‘final,’’ and
therefore reviewable, if it: ‘‘(1) conclusively determine[s] the
disputed question, (2) resolve[s] an important issue complete-
ly separate from the merits of the action, and (3) [is] effec-
tively unreviewable on appeal from a final judgment.’’ Puer-
to Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 144 (1993). Further, ‘‘[i]t is well-established that an
appeal from a denial of a motion to dismiss a complaint on the
ground of sovereign immunity under the FSIA satisfies the
three requirements of the collateral order doctrine.’’
Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d
1020, 1025 (D.C. Cir. 1997); see Kilburn v. Socialist People’s
Libyan Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir.
2004). Thus do we have jurisdiction over Libya’s appeal
contending that sovereign immunity shields it from this suit.
The jurisdiction of the district court, in contrast, is gov-
erned by the FSIA itself: A foreign state is immune from suit
in both federal and state courts, 28 U.S.C. § 1604, unless the
case comes within an express exception in the FSIA, id.
§ 1605. ‘‘If no exception applies, a foreign sovereign’s immu-
nity under the FSIA is complete: The district court lacks
6
subject matter jurisdiction over the plaintiff’s case.’’ Phoenix
Consulting, 216 F.3d at 39.
The Congress, by § 221(a) of the Antiterrorism and Effec-
tive Death Penalty Act of 1996, Pub. L. No. 104–132, 110 Stat.
1214, 1241–42 (Apr. 24, 1996), added to the FSIA a ‘‘terrorism
exception,’’ which denies sovereign immunity in any case
in which money damages are sought against a for-
eign state for personal injury or death that was
caused by an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of
material support or resources TTT for such an act if
such act or provision of material support is engaged
in by an official, employee, or agent of such foreign
state while acting within the scope of his or her
office, employment, or agency.
28 U.S.C. § 1605(a)(7). As in Kilburn, the question in this
case is whether the plaintiffs’ claims ‘‘fall within TTT the
exception, upon which the jurisdiction of the district court
depends.’’ 376 F.3d at 1127.
Application of this exception entails the reconciliation of
two rival propositions. On the one hand, because a foreign
sovereign ‘‘has immunity from trial and the attendant bur-
dens of litigation,’’ its claim of immunity from suit should be
resolved ‘‘as early in the litigation as possible,’’ Phoenix
Consulting, 216 F.3d at 39, lest the purpose to be served by
sovereign immunity be unduly compromised. On the other
hand, a court is poorly equipped to resolve factual disputes at
an early stage in a litigation — as reflected in the ordinary
rules of procedure. See, e.g., Sutton v. United Air Lines,
Inc., 527 U.S. 471, 475 (1999) (when judging a motion to
dismiss under Rule 12(b)(6) a court should ‘‘accept the allega-
tions contained in [the] complaint as true for purposes of [the]
case’’).
In Phoenix Consulting we explained how we reconcile
these propositions: When a foreign sovereign disputes the
fact(s) upon which the district court’s subject matter jurisdic-
tion depend(s), the court ‘‘must go beyond the pleadings and
7
resolve any disputed issues of fact the resolution of which is
necessary to a ruling upon the motion to dismiss.’’ 216 F.3d
at 40. This resolution, of course, is ‘‘not a conclusive determi-
nation’’ but is ‘‘instead subject to change in light of further
development of the facts.’’ I.T. Consultants, Inc. v. Republic
of Pakistan, 351 F.3d 1184, 1188 (D.C. Cir. 2003). And, as we
later observed, the district court ‘‘retains considerable lati-
tude in devising the procedures it will follow to ferret out the
facts pertinent to jurisdiction.’’ Kilburn, 376 F.3d at 1131.
Regardless of the procedures the court follows, however, the
sovereign ‘‘defendant bears the burden of proving that the
plaintiff’s allegations do not bring its case within a statutory
exception to immunity.’’ Phoenix Consulting, 216 F.3d at 40.
The parties to this case agree upon these basic principles
but they skirmish over the standard of review that guides our
inquiry. Libya points to Price II, where we explained that
we review de novo a district court’s determination whether
alleged facts ‘‘[bring] the case within any of the exceptions to
immunity invoked by the plaintiff.’’ 294 F.3d at 91. The
plaintiffs, in turn, direct us to decisions in which we said we
‘‘review de novo the district court’s determination that a
[foreign sovereign] is not entitled to immunity’’ while we
‘‘review the district court’s findings of fact for clear error.’’
Transamerica Leasing, Inc. v. La Republica De Venezuela,
200 F.3d 843, 847 (D.C. Cir. 2000); see, e.g., Jungquist, 115
F.3d at 1028. There is no inconsistency, however, in our
precedents: The cases cited by the plaintiffs announce the
unsurprising proposition that we review the district court’s
findings of fact — including facts that bear upon immunity
and therefore upon jurisdiction — for clear error; hence, we
went on in Price II to state that, once the facts have been
settled, we decide de novo whether those facts are sufficient
to divest the foreign sovereign of its immunity. 294 F.3d at
91. In this case, the legal issue we review de novo is whether
the allegations in the amended complaint, viewed in light of
the contradictions to which Libya points, are still sufficient to
divest Libya of immunity from suit. See, e.g., Kilburn, 376
F.3d at 1131–33 (reviewing de novo whether contradictions
between allegations in complaint and facts recited in CIA and
8
State Department documents sufficed to carry Libya’s burden
of proving conduct fell outside terrorism exception to FSIA).
Libya points to three areas of arguable incongruity be-
tween the amended complaint and the New York depositions;
none persuades us the district court erred. First, the claim
in the amended complaint that Hassan Ben Younis interroga-
ted Price and Frey ‘‘on or about March 20’’ and accused them
of being spies is not inconsistent with Frey’s testimony in his
New York deposition that the prosecutor who interrogated
him on March 20 ‘‘was not Ben Younis’’ and, whoever it was,
charged him only with taking illegal photographs. The two
accounts are reconciled if Price and Frey were interrogated
by Ben Younis ‘‘about’’ but not ‘‘on’’ March 20.
Second, Libya contends Price and Frey have given two
irreconcilable accounts of their meeting with Mr. Duabi, the
Libyan lawyer assigned to advise them. In his New York
deposition Frey testified that Mr. Duabi smuggled a note
from the imprisoned plaintiffs to their employer. In the
amended complaint the plaintiffs allege Mr. Duabi told them
they would receive the death penalty if they did not confess.
Libya claims that both accounts cannot be true: ‘‘It is absurd
to assert that Mr. Duabi was an agent of Libya trying to
force Price and Frey to sign a false confession while at the
same time smuggling papers out to their employers.’’ We
agree with the plaintiffs, however, it is entirely possible both
accounts are correct — that is, the lawyer smuggled the note
but warned the plaintiffs of dire consequences if they did not
confess.
Finally, Libya suggests the amended complaint and the
New York depositions contain contradictory accounts of the
events of April 30. Specifically, Libya argues Frey’s deposi-
tion testimony that he was not charged with espionage or
spying activities while being interrogated on April 30 ‘‘direct-
ly contradicts and proves false’’ the allegation in the amended
complaint that ‘‘[o]n or about’’ April 30 both plaintiffs were
threatened with beatings if they did not confess to being
spies. Although the plaintiffs may encounter difficulty at
trial reconciling these accounts, the two versions are not
9
hopelessly inconsistent. It is possible the interrogation ‘‘on
or about’’ April 30 described in the amended complaint is not
the same as the interrogation described in the New York
depositions. Libya has not pointed to anything in the New
York depositions that would preclude this possibility. Fur-
ther, as the plaintiffs point out, the questions put to Frey at
his deposition, upon the answers to which Libya relies, relat-
ed only to the formal process of arraignment, and at the
arraignment he was not charged with spying.
In all three respects Libya has done little more than
highlight small variations between the facts as described in
the plaintiffs’ action of more than two decades ago against a
non-sovereign defendant and the facts as described in the
amended complaint against Libya. Such slight support can-
not carry the defendant’s ‘‘burden of proving that the plain-
tiff’s allegations do not bring its case within a statutory
exception to immunity.’’ Phoenix Consulting, 216 F.3d at 40.
Libya has failed to carry its burden of proof not only
because it has not identified any true contradictions to under-
mine the credibility of the amended complaint but also be-
cause it does not dispute some of the most serious allegations
in that complaint. See Kilburn, 376 F.3d at 1132 (Libya
satisfied neither burden of proof nor burden of production by
pointing to alleged contradictions between complaint and
government documents but proffering no ‘‘affirmative evi-
dence’’ conduct was not within terrorism exception to FSIA).
As the district court noted, Libya did nothing to contest the
allegations that
on three separate occasions, plaintiffs were bound
and forced to watch as another prisoner was beaten
[and] on each of these occasions, the head of the
prison informed them that if they did not sign a
confession that they were American spies, they
would receive the same treatment that they were
witnessing.
Price III, 274 F. Supp. 2d at 25. Having failed to impugn the
plaintiffs’ credibility based upon irreconcilable differences
between their amended complaint and their prior testimony,
10
Libya cannot remain silent in the face of these allegations and
still be said to have carried its burden of showing this case
does not come within the subject matter jurisdiction of the
district court via the terrorism exception to the FSIA. See
Price II, 294 F.3d at 93 (‘‘When reviewing a plaintiff’s unchal-
lenged factual allegations to determine whether they are
sufficient to deprive a foreign state defendant of sovereign
immunity, we assume those allegations to be true’’).
In short Libya has not exposed any contradiction that
renders the facts stated in the amended complaint insufficient
to deprive the defendant of its immunity from suit. The
district court therefore correctly denied Libya’s motion to
dismiss for lack of jurisdiction.
B. Motion to Dismiss
Libya next argues the district court erred in denying its
Rule 12(b)(6) motion to dismiss the amended complaint for
failure to state a claim upon which relief can be granted
because this circuit recently held, contrary to the district
court, see Price III, 274 F. Supp. 2d at 27, that the Flatow
Amendment does not ‘‘creat[e] a private right of action
against a foreign government.’’ Cicippio-Puelo, 353 F.3d at
1033. Although Libya advances an uncontroversial reading of
our decision, it does not follow apodictically that this court
should grant Libya the relief it requests: ‘‘Denial of a motion
to dismiss for failure to state a claim under Rule 12(b)(6) is
not ordinarily subject to interlocutory appeal. It is neither a
final decision nor a proper subject for appeal under the
collateral order doctrine.’’ Kilburn, 376 F.3d at 1133.
Libya does not appear to disagree; rather, as in Kilburn,
Libya ‘‘urges us to assume jurisdiction over the non-immunity
issues as ‘pendent’ to the sovereign immunity decision over
which we have interlocutory jurisdiction.’’ Id. Libya also
relies upon Acree v. Republic of Iraq 370 F.3d 41, 59 (D.C.
Cir. 2004), in which we held ‘‘generic common law cannot be
the source of a federal cause of action.’’ Acree, however, was
not a case in which we exercised pendent appellate jurisdic-
tion, so it has no bearing upon the issue now before us.
11
‘‘A circuit court exercises pendent jurisdiction when, in the
course of reviewing an order from which an appeal is within
its jurisdiction, it hears an appeal from another order that,
while part of the same case or controversy, would not other-
wise be within its statutory jurisdiction.’’ Gilda Marx, Inc. v.
Wildwood Exercise, Inc., 85 F.3d 675, 678 (D.C. Cir. 1996).
The exercise of pendent appellate jurisdiction is often sug-
gested, occasionally tempting, but only rarely appropriate.
Because ‘‘a rule loosely allowing pendent appellate jurisdic-
tion would encourage parties to parlay TTT collateral orders
into multi-issue interlocutory appeal tickets,’’ Swint v. Cham-
bers County Comm’n, 514 U.S. 35, 49–50 (1995), ‘‘[t]his court
exercises pendent appellate jurisdiction sparingly,’’ Gilda
Marx, 85 F.3d at 678–79, indeed only when review of the
pendent matter is necessary ‘‘to ensure meaningful review’’ of
or ‘‘inextricably intertwined with’’ the order properly before
the court. Nat’l R.R. Passenger Corp. v. Expresstrak, L.L.C.,
330 F.3d 523, 527 (D.C. Cir. 2003).
Neither of these considerations favors the exercise of pen-
dent jurisdiction in this case. The amended complaint ad-
vances many theories of liability, including claims under not
only the Flatow Amendment but also under state common
law, some general and several specific sources of international
law, the Torture Victims Protection Act of 1991, and § 1003
of the Federal Courts Administration Act of 1992 (codified at
18 U.S.C. § 2333(a)). In Kilburn, we explained ‘‘whether
state tort law properly provides the plaintiff with a cause of
action TTT is not inextricably linked with, or necessary for
meaningful review of, the proper scope of jurisdictional causa-
tion under § 1605(a)(7)’’ of the FSIA. Kilburn, 376 F.3d at
1134. Likewise, the question whether any of the sources of
law invoked in the amended complaint provides the plaintiffs
with a cause of action is not inextricably linked with, or
necessary for meaningful review of, the only question before
us as of right, namely, the sufficiency of the facts to support
the court’s jurisdiction under the terrorism exception to the
FSIA, § 1605(a)(7).
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III. Conclusion
For the foregoing reasons, the district court’s denial of
Libya’s motion to dismiss for want of jurisdiction is
Affirmed.