United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2011 Decided July 15, 2011
No. 10-5355
DAVID M. ROEDER, ET AL.,
APPELLANTS
v.
ISLAMIC REPUBLIC OF IRAN AND UNITED STATES OF AMERICA,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00487)
George J. Terwilliger III argued the cause for appellants.
With him on the briefs were Daniel B. Levin, V. Thomas
Lankford, and Terrance G. Reed.
Lewis S. Yelin, Attorney, U.S. Department of Justice, argued
the cause for appellee United States of America. With him on
the brief were Tony West, Assistant Attorney General, Ronald C.
Machen, U.S. Attorney, and Douglas N. Letter, Attorney. R.
Craig Lawrence, Assistant U.S. Attorney, entered an appear-
ance.
Before: GARLAND and GRIFFITH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: Plaintiffs are Americans
taken hostage in Iran in November 1979, and their families. The
Iranians held the hostages for nearly 15 months. They were
freed only when the United States and the Islamic Republic of
Iran entered into the Algiers Accords. See generally
Iran–United States: Settlement of the Hostage Crisis, 20 I.L.M.
223 (1981). In the Accords, the United States made promises
to Iran in order to secure the hostages’ release. One of these was
a promise to bar the prosecution against Iran of any legal action
by a U.S. national arising out of the hostage taking.
For the sake of clarity we will refer to plaintiffs collectively
as “Roeder.” In Roeder’s last action against Iran for damages,
we held that the Foreign Sovereign Immunities Act (FSIA), Pub.
L. No. 94-583, 90 Stat. 2891 (codified as amended in scattered
sections of 28 U.S.C.), and in particular, the 2002 amendments
to the Act, did not abrogate the promise made by the United
States in the Algiers Accords to bar actions such as Roeder’s.
See Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir.
2003) (Roeder I).
Five years after we affirmed the dismissal of his suit,
Roeder brought a new complaint in the district court, this time
relying on Congress’s 2008 amendments to the FSIA. As in the
past case, Iran did not respond, the United States intervened and
filed a motion to dismiss, and the district court granted the
motion. The question in this appeal is whether the 2008
amendments to the FSIA reneged on the promise of the United
States in the Accords to bar Roeder’s suit.
“The FSIA provides generally that a foreign state is immune
from the jurisdiction of the United States courts unless one of
3
the exceptions listed in 28 U.S.C. § 1605(a) applies.” Roeder I,
333 F.3d at 235. A provision in effect when Roeder brought the
last suit, but now repealed—28 U.S.C. § 1605(a)(7)(A)
(2000)—stated that immunity did not apply if the foreign state
had been designated a state sponsor of terrorism when the act in
question occurred or as a result of the act. Iran did not meet that
description. See Roeder I, 333 F.3d at 235.1 In 2001 and 2002,
while Roeder I was pending in the district court, Congress
amended the FSIA specifically to deprive Iran of immunity for
acts related to Roeder’s case. See Pub. L. No. 107–77, § 626(c),
115 Stat. 748, 803 (2001); Pub. L. No. 107–117, Div. B, § 208,
115 Stat. 2230, 2299 (2002) (correcting scrivener’s error);
Roeder I, 333 F.3d at 235. Even so, the Algiers Accords
remained a bar to Roeder’s suit. Roeder I, 333 F.3d at 237. The
2001 and 2002 amendments, we held, did not provide the “clear
expression” of congressional intent necessary to abrogate an
executive agreement. Id. at 237.2
1
As we explained, Iran was designated a state sponsor of
terrorism in 1984. But that designation apparently rested on Iran’s
support of terrorism outside its borders and not on any acts related to
the hostage crisis. Roeder I, 333 F.3d at 235.
2
We explained this clear statement rule in Roeder I:
[N]either a treaty nor an executive agreement will be considered
“‘abrogated or modified by a later statute unless such purpose on
the part of Congress has been clearly expressed.’” Trans World
Airlines v. Franklin Mint Corp., 466 U.S. 243, 252 (1984)
(quoting Cook v. United States, 288 U.S. 102, 120 (1933)); see
Weinberger v. Rossi, 456 U.S. 25, 32 (1982); Comm. of United
States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929,
936-37 (D.C. Cir. 1988). The way Congress expresses itself is
through legislation.
***
4
After our decision in Roeder I, Congress again amended the
FSIA. The 2008 amendments created a generally applicable
private right of action against foreign states for state sponsorship
of terrorism. See 28 U.S.C. § 1605A(c) (Supp. II 2008). The
amendment was a response to Cicippio-Puleo v. Islamic
Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004), which held
that the FSIA itself did not create a right of action against
foreign states and that plaintiffs had to identify some other
source of law (such as state law) granting them a right to
recover. The 2008 amendments also reenacted, with minor
changes, the provision granting the district court jurisdiction
over claims related to the acts involved in Roeder’s case. See 28
U.S.C. § 1605A(a)(2)(B) (Supp. II 2008).3
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.” Gregory v. Ashcroft, 501 U.S. 452, 461 (1991).
Roeder I, 333 F.3d at 237-38 (parallel citations omitted).
3
28 U.S.C. § 1605A(a) now provides, in relevant part:
(a) In general.—
(1) No immunity.—A foreign state shall not be immune from
the jurisdiction of courts of the United States or of the States
in any case not otherwise covered by this chapter in which
money damages are sought against a foreign 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 for such an act if
5
Roeder argues that the 2008 FSIA amendments, by creating
a federal cause of action against state sponsors of terrorism,
rendered our country’s commitment to bar claims like Roeder’s
a nullity. As the district court pointed out, during the five years
between Roeder I and the 2008 amendments, in the 107th,
108th, 109th, and 110th sessions of Congress, legislators
tried—and failed—“to enact legislation that would explicitly
abrogate the provision of the Algiers Accords barring the
hostages’ suit.” Roeder v. Islamic Republic of Iran, 742 F.
Supp. 2d 1, 5 (D.D.C. 2010) (quoting JENNIFER K. ELSEA,
CONGRESSIONAL RESEARCH SERV., SUITS AGAINST TERRORIST
STATES BY VICTIMS OF TERRORISM 31 (2008), available at
http://www.fas.org/sgp/crs/terror/RL31258.pdf). Just as in
Roeder I, the amendments that finally passed “do not, on their
face, say anything about the Accords.” 333 F.3d at 236. In
Roeder I we gave an example of language that might suffice to
abrogate even without an express reference to the Accords, id.
at 237, but the 2008 amendments contain no such language or
such act or provision of material support or resources 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.
(2) Claim heard.—The court shall hear a claim under this
section if—
***
(B) the act described in paragraph (1) is related to Case
Number 1:00CV03110 (EGS) in the United States
District Court for the District of Columbia.
The case number referred to in subsection (a)(2)(B) is the number of
one of Roeder’s prior suits.
6
anything comparable. Nevertheless, Roeder believes that the
new, general, terrorism cause of action unambiguously conflicts
with the prosecution bar contained in the Algiers Accords and
that the latter must necessarily give way.4
The premise of Roeder’s argument is that the 2008 amend-
ments to the FSIA permitted him to revive his dismissed claims
and invoke the new federal cause of action in 28 U.S.C.
§ 1605A(c) against Iran. We do not think this is so clear.
Section 1605A(c) created a statutory cause of action for
terrorism-related injuries against a foreign state that is a “state
sponsor of terrorism” as described by 28 U.S.C.
§ 1605A(a)(2)(A)(i).5 As relevant here, this includes nations the
4
Nothing in our decision in Roeder I turned on whether Roeder
had a cause of action under federal law or under state law or under
some other source of law. But we will assume arguendo that if the
2008 amendments unambiguously created a cause of action available
to Roeder against Iran, this would have the effect of abrogating the
Accords.
5
Section 1605A(c) reads in whole:
(c) Private right of action.—A foreign state that is or was a state
sponsor of terrorism as described in subsection (a)(2)(A)(i), and
any official, employee, or agent of that foreign state while acting
within the scope of his or her office, employment, or agency, shall
be liable to—
(1) a national of the United States,
(2) a member of the armed forces,
(3) an employee of the Government of the United States, or of
an individual performing a contract awarded by the United
States Government, acting within the scope of the employee's
employment, or
(4) the legal representative of a person described in paragraph
(1), (2), or (3),
7
State Department had designated sponsors of terrorism at the
time of the filing of a prior, “related action” in cases “filed under
[§ 1605A] by reason of section 1083(c)(3) of [the National
Defense Authorization Act for Fiscal Year 2008] . . ..” 28
U.S.C. § 1605A(a)(2)(A)(i)(II). Iran had been so designated by
the time Roeder brought the last suit. But the question remains
whether Roeder I was a “related action” within the meaning of
§ 1083(c)(3).
Section 1083(c) of the National Defense Authorization Act
for Fiscal Year 2008—titled “Application to Pending
Cases”—determines if plaintiffs in cases filed before the
addition of the federal terrorism cause of action can rely on the
new cause of action when filing a new action under § 1605A
that would otherwise be barred by the statute of limitations in 28
U.S.C. § 1605A(b). See Pub. L. No. 110-181, § 1083(c), 122
Stat. 3 (codified at 28 U.S.C. § 1605A note).6 Subsection (c)(3)
provides, “If an action arising out of an act or incident has been
timely commenced under [28 U.S.C. § 1605(a)(7)], . . . any
other action arising out of the same act or incident may be
brought under [28 U.S.C. § 1605A]” if it is commenced within
60 days of the entry of judgment in the original action or of the
date of enactment of the amendments. Roeder contends that this
for personal injury or death caused by acts described in subsection
(a) (1) of that foreign state, or of an official, employee, or agent of
that foreign state, for which the courts of the United States may
maintain jurisdiction under this section for money damages. In
any such action, damages may include economic damages,
solatium, pain and suffering, and punitive damages. In any such
action, a foreign state shall be vicariously liable for the acts of its
officials, employees, or agents.
6
The parties have assumed—at least for the sake of this
appeal—that unless Roeder’s case falls within § 1083(c)(3), it would
be barred by the statute of limitations in 28 U.S.C. § 1605A(b).
8
provision, together with § 1605A(c), unambiguously gives him
a cause of action to sue Iran.
Roeder I was filed under § 1605(a)(7), the prior terrorism
exception to foreign sovereign immunity. Roeder’s new action
duplicates the old one. Yet the related action provision of
§ 1083(c)(3) does not seem to contemplate that the later, related
suit would be one that simply replicates the earlier action. The
section speaks of “any other action,” and it turns on whether the
new action “arises from” the same act or incident, not on
whether it is identical to the prior suit or even brought by the
same plaintiff. In addition, the refiling of duplicate actions is
dealt with in § 1083(c)(2), but that is a provision Roeder cannot
invoke because it expressly requires that the earlier action be
pending at the time of the 2008 amendments. See National
Defense Authorization Act for Fiscal Year 2008,
§ 1083(c)(2)(a)(iv). We mention this not because it is conclu-
sive, but because it casts some doubt on whether § 1083(c) is as
clear as Roeder makes it out to be.
The district court relied on other considerations in deciding
that the 2008 amendments were not the sort of clear expression
that would be needed to disregard the Accords’ bar against suit.
We are content to place our decision on the district court’s
analysis. The court found that § 1083(c)(3) was ambiguous
regarding whether plaintiffs, such as Roeder, whose cases were
not pending at the time of the 2008 amendments could rely on
that provision to resurrect their actions long after they had been
dismissed.
In arguing against this conclusion, Roeder points to the
express pending-action requirement contained in § 1083(c)(2),
which allows plaintiffs who had relied on § 1605(a)(7) as
creating a cause of action to convert their claim to one under
§ 1605A(c). He contends that the absence of similar language
9
in § 1083(c)(3) strongly suggests that subsection (c)(3) contains
no such requirement. We do not deny the force of Roeder’s
argument. In the end it may well represent the best reading of
§ 1083(c)(3). But our focus is not on the best reading. Legisla-
tion abrogating international agreements “must be clear to
ensure that Congress—and the President—have considered the
consequences.” Roeder I, 333 F.3d at 238. An ambiguous
statute cannot supercede an international agreement if an
alternative reading is fairly possible. Fund for Animals, Inc. v.
Kempthorne, 472 F.3d 872, 879 (D.C. Cir. 2006). This clear
statement requirement—common in other areas of federal law,
see Roeder I, 333 F.3d at 238—“assures that the legislature has
in fact faced, and intended to bring into issue, the critical matters
involved in the judicial decision.” Gregory v. Ashcroft, 501
U.S. 452, 461 (1991).
With respect to whether Roeder’s current suit qualifies as
a related action, § 1083(c)(3) is unclear. Section 1083(c)(3)
refers to “an action” that “has been timely commenced” under
the FSIA’s prior terrorism exception. Roeder contends that this
unambiguously refers to every action brought before the
enactment of § 1083 that was timely when filed. We think,
however, that the language can fairly be read to refer only to
those cases timely commenced under § 1605(a)(7) that were still
pending when the Act was passed. If Congress had meant to
embrace more than just pending cases, it might have used the
past simple, “was timely commenced.” And it might have
placed § 1083(c)(3) outside of a section entitled “Application to
Pending Cases.” Instead, Congress chose language suggesting
that the predicate action in § 1083(c)(3) is one that has been
commenced but is still ongoing. It is thus unclear whether
Roeder—whose prior case was not pending and whose new case
would have been time barred—could sue under § 1605A(c).
10
Roeder’s resort to canons of construction does not render
§ 1083(c)(3) any more certain. For the reasons given by the
district court, we are not convinced that a pending-action
requirement would make any part of § 1083(c)(3) wholly
superfluous. See Roeder, 742 F. Supp. 2d at 16. And while “it
is generally presumed that Congress acts intentionally and
purposefully when it includes particular language in one section
of a statute and omits it from another,” BFP v. Resolution Trust
Co., 511 U.S. 531, 537 (1994), the strength of that presumption
varies with context, see City of Columbus v. Ours Garage &
Wrecker Serv., Inc., 536 U.S. 424, 435-36 (2002). Here, the
relevant subsections were added at different times in the
legislative process, serve different purposes and share little
similar language. Compare H.R. 1585, 110th Cong., § 1087 (as
passed by Senate, Oct. 1, 2007), with H.R. 1585, 110th Cong.,
§ 1083 (as passed by Senate, Dec. 14, 2007). In these circum-
stances, the presumption is not of such power that it alone makes
§ 1083(c)(3) unambiguous.
Because of § 1083(c)(3)’s ambiguity regarding whether
Roeder, whose case was not pending at the time of enactment,
may file under the new terrorism cause of action, we are
required again to conclude that Congress has not abrogated the
Algiers Accords. We also reject Roeder’s alternative argument
that the reenacted and partially revised jurisdictional provisions
of the FSIA abrogate the Accords. These provisions are not
meaningfully different than they were when presented to us in
Roeder I. For the foregoing reasons, the order of the district
court is
Affirmed.