Arnold v. the Islamic Republic of Iran

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
LOLITA M. ARNOLD, et al., )
)
Plaintiffs, )
)
v. ) 06-cv-516 (RCL)
)
ISLAMIC REPUBLIC OF IRAN, et al., )
)
Defendants. )
)

MEMORANDUM OPINION

I. INTRODUCTION

This action was filed by U.S. servicemen and their family members to call defendants

Islamic Republic of Iran and the Iranian Ministry of Information and Security to account for their

role in the 1983 bombing of the Marine barracks in Beirut, Lebanon. The Court consolidated

this suit—which was brought pursuant to the former “state-sponsored terrorism” exception to the

Foreign Sovereign Immunities Act (“FSIA”), codified at 28 U.S.C. § 1605(a)(7), and then re-

filed under the current exception, codified at 28 U.S.C. § 1605A—with three § 1605A actions

arising from the 1983 attacks, and last year issued an opinion finding defendants “responsible for

the deaths and injuries of hundreds of American servicemen,” “liable for the emotional injuries

their family members have suffered,” and deserving of punishment to the “fullest legal extent

possible.” Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 90 (D.D.C. 2010).

The issue before the Court today is plaintiffs’ motion for payment of Special Master

Susan Meek, M.D., J.D., who diligently assisted the Court throughout these proceedings by

gathering and reviewing countless depositions, documents and records. Plaintiffs’ request poses
two distinct problems: first, plaintiffs seek payment for work performed by Dr. Meek prior to the

commencement of this action; and second, they request compensation for work performed after

this suit was filed but before the creation of § 1605A, which is the only provision that authorizes

courts to order reimbursement for special master expenses under the FSIA. Having previously

disposed of the former concern, the Court now turns to the latter.

II. BACKGROUND

A. The National Defense Authorization Act for Fiscal Year 2008

In 1996, Congress created the state-sponsored terrorism exception as part of the

Antiterrorism and Effective Death Penalty Act. Pub. L. No. 104-132, § 221, 110 Stat. 1241–43

(1996). In light of its ten-year statute of limitations, § 1605(a)(7) quickly became the basis for

hundreds of lawsuits against various state sponsors of terrorism. To aid the judiciary in

reviewing evidence in these often-sprawling matters—many of which involved hundreds of

plaintiffs—courts frequently turned to special masters appointed pursuant to Federal Rule of

Civil Procedure 53. The need for such assistance with these matters has been tremendous;

indeed, this Court previously observed that had it “been required to take on the functions

performed by these special masters, the work of this Court with respect to numerous other

pending civil and criminal cases would have come screeching to a halt.” In re Islamic Republic

of Iran Terrorism Litig., 659 F. Supp. 2d 31, 110 (D.D.C. 2009) (“In re Terrorism Litig.”). A

lingering problem with these appointments, however, has been parties’ inability to compensate

special masters for their tireless work—a result largely attributable to plaintiffs’ inability to

collect upon their FSIA judgments.

Concerned with “significant setbacks that plaintiffs experienced in actions under §

1605(a)(7),” Congress enacted the National Defense Authorization Act for Fiscal Year 2008,

2
Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338–44 (2008) (“NDAA” or “2008 Amendments”),

which, inter alia, replaced § 1605(a)(7) with § 1605A. In re Terrorism Litig., 659 F. Supp. 2d at

58. With respect to the FSIA, the NDAA included four central initiatives: (1) to provide a

federal cause of action against state-sponsors of terrorism, (2) to permit imposition of punitive

damages for such acts, (3) to authorize compensation for special masters who aid the judiciary in

guiding these often-unwieldy cases through litigation, and (4) to create new mechanisms for the

enforcement of judgments under the Act. Id. at 58–59. With regard to special masters, the new

state-sponsored terrorism exception includes the following provision:

(e) Special Masters.—

(1) In general.— The courts of the United States may appoint
special masters to hear damage claims brought under this
section.

(2) Transfer of funds.— The Attorney General shall transfer,
from funds available for the program under section 1404C of
the Victims of Crime Act of 1984 (42 U.S.C. 10603c), to the
Administrator of the United States district court in which any
case is pending which has been brought or maintained under
this section such funds as may be required to cover the costs of
special masters appointed under paragraph (1). Any amount
paid in compensation to any such special master shall
constitute an item of court costs.

28 U.S.C. § 1605A(e). Numerous special masters have now received payment for their work on

state-sponsored terrorism cases pursuant to this provision through procedures set up by the

Department of Justice’s Office for Victims of Crime. See, e.g., Order for Payment of Special

Master, Nov. 12, 2010, Valore, No. 09 Civ. 1959 [74-1].

A critical feature of the NDAA is that § 1605A was made retroactive in many respects.

Section 1083(c) of the Act provides two paths, subject to certain statutory requirements, for

retroactive application of the state-sponsored terrorism exception: first, actions which were

pending in the courts at the time the Act was passed may, on the parties’ motion, be “given effect

3
as if the action had originally been filed under” the new exception; and second, where suits had

been timely commenced under § 1605(a)(7), “any other action arising out of the same act or

incident may be brought under section 1605A.” NDAA § 1083(c)(2)–(3). Numerous FSIA

plaintiffs have subsequently used these provisions to proceed with suits brought under §

1605(a)(7) as § 1605A actions. And as a result of this trend, this Court has, on occasion, raised

the following question: Where a special master was appointed and performed work on a case

prior to the 2008 Amendments, and that case was subsequently re-filed under § 1605A pursuant

to the procedures set forth in § 1083(c) of the NDAA, may the Court compensate that special

master for the work performed before the Act became law? In its omnibus opinion reviewing the

effects of the 2008 Amendments, this Court—speaking in general terms—suggested that special

masters could receive compensation for such work. See In re Terrorism Litig., 659 F. Supp. 2d

at 111 (criticizing view that “any sort of retroactivity problem would serve as a bar” to such

payments). The government, in contrast, has consistently argued that such payments are

impermissible. See, e.g., United States’ Statement in Response, July 25, 2008, Peterson v.

Islamic Republic of Iran, No. 01 Civ. 2094 [389]. Until today, however, the Court has not had

the opportunity to confront this question in a live controversy.

B. Procedural History

This suit was brought in 2006 pursuant to the former state-sponsored terrorism

exception, and in late 2009 plaintiffs amended their complaint to state claims under § 1605A.

Amended Complaint, Nov. 30, 2009 [18]. A few months later, plaintiffs sought the appointment

of Susan Meek, M.D., J.D. as a special master in this action. Affidavit of Dr. Meek, Mar. 8,

2010 [26]. The Court subsequently appointed Dr. Meek nunc pro tunc “from the date she began

working on reports and recommendations for this case.” Second Order Appointing Special

4
Master, Mar. 18, 2010 [31]. Final judgment was ultimately entered in this action, along with the

three consolidated matters, in March of 2010. Order & Judgment, Mar. 31, 2010 [34]. 1

Plaintiffs subsequently moved for payment of Dr. Meek pursuant to § 1605A(e). Motion

for Order Authorizing Payment to Special Master, Nov. 12, 2010 [40]. In support of that motion,

plaintiffs submitted a statement from Dr. Meek in compliance with the Court’s administrative

plan governing special masters. Verified Voucher of Special Master Susan Meek M.D., J.D.,

Nov. 12, 2010 [40-2]. In that voucher, Dr. Meek seeks payment for work beginning on June 15,

2003, id. at 3—despite the fact that this case did not exist prior to March 10, 2006. In

response—and after plaintiffs’ repeated failures to take up the Court’s invitation to brief the

matter—the Court held that “it lacks the authority to order payment for work performed by

special masters while appointed in cases involving different parties, where that work was

undertaken prior to the filing of the FSIA action in which compensation under § 1605A(e) is

sought.” Order 2, Jan. 6, 2011 [46]. It therefore declined to “consider any time billed by Special

Master Meek prior to the filing of this case on March 10, 2006.” Id. at 4. That Order, however,

did not address the time billed by Dr. Meek during the period between the filing of this case and

the enactment of the NDAA, and so—this being the first time the issue is before it—the Court

invited the government’s views on the matter. Id. at 3–4.

In its response, the government advances three arguments as to why no compensation

may be ordered for work performed prior to the enactment of the NDAA on a case brought under

§ 1605(a)(7), even where that case is converted into a § 1605A suit. Department of Justice’s

Response, Apr. 29, 2011 [48] (“Gov. Br.”). First, the government stresses that the payment

provision of § 1605A(e)(2) only permits compensation for work performed by special masters

1
The Court later revised the final judgment in a manner not relevant here. Revised Order & Judgment,
Sep. 20, 2010 [37].

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appointed pursuant to § 1605A(e)(1), and because paragraph (1) did not exist prior to the 2008

Amendments, no pre-NDAA work could have been performed by a special master appointed

pursuant to that provision. Id. at 4–5. Second, the government notes that courts lack authority to

direct agencies to issue payments absent statutory authorization, and so any order for payment of

pre-NDAA work would encroach upon Congress’s exclusive control over treasury funds under

the Constitution. Id. at 6–7. Finally, the government maintains that the Court’s nunc pro tunc

Order cannot create a retroactive effect where the statute does not so provide. Id. at 7–8. In

response, plaintiffs argue that the Court possessed the authority to appoint Dr. Meek prior to the

2008 Amendments, and emphasize that Congress intended the entirety of § 1605A—including

the special master provisions—to have retroactive effect. Memorandum in Response, May 13,

2011 [40] (“Ps.’ Br.”). 2 For reasons set forth below, the Court finds that the 2008 Amendments

authorize payment to special masters for pre-NDAA work performed in cases brought under §

1605(a)(7) and then re-filed under § 1605A pursuant to § 1083(c)(2) of the NDAA, but not such

cases re-filed under § 1083(c)(3) of the Act, and therefore holds that Dr. Meek cannot receive

payment for any work performed prior to the Amended Complaint in this case.

III. ANALYSIS

A. Authorization for Payment of Special Master’s Pre-NDAA Work

The question before the Court today is whether Congress intended that the provision for

compensation of special masters in terrorism-related FSIA actions added in 2008 apply to special

masters already assisting courts in processing state-sponsored terrorism cases under the prior

exception. The touchstone of retroactivity is congressional intent, and courts apply a two-step

2
Plaintiffs also point out that the government’s response came after the initial deadline set by the Court.
Ps.’ Br. at 1 & n.1. However, since the delay was caused, in the first instance, by the Court’s inadvertent failure to
provide the government with the relevant materials, and because plaintiffs have demonstrated no prejudice caused
by the government’s delay, the Court will not fret over on the timing of the response.

6
methodology to evaluate whether a statute should apply to cases pending when it is enacted.

First, a court “look[s] to ‘whether Congress has expressly prescribed the statute’s proper reach,’”

or, in the absence of an express command, determines if it can “draw a comparably firm

conclusion about the temporal reach specifically intended by applying . . . ‘normal rules of

construction.’” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (quoting Landgraf v. USI

Film Prods., 511 U.S. 244, 280 (1994); Lindh v. Murphy, 521 U.S. 320, 326 (1997)); see also

Lytes v. D.C. Water & Sewer Auth., 572 F.3d 936, 939 (D.C. Cir. 2009) (“We first look for an

express command regarding the temporal reach of the statute, or, in the absence of language as

helpful as that, determine whether a comparably firm conclusion can be reached upon the basis

of the normal rules of statutory construction.”). Second, in the event a court is unable to identify

a clear statement of Congress’ intent, it examines “whether applying the statute to the person

objecting would have a retroactive consequence in the disfavored sense of ‘affecting substantive

rights, liabilities, or duties on the basis of conduct arising before its enactment,’” in which case

the court “appl[ies] the presumption against retroactivity.” Fernandez-Vargas, 548 U.S. at 37–

38 (quoting Landgraf, 511 U.S. at 278). This second step—and application of the presumption

against retroactivity—is only necessary, however, where “there is no congressional directive on

the temporal reach of a statute.” Martin v. Hadix, 527 U.S. 343, 352 (1999).

There is no dispute that the NDAA has some retroactive application, Gov. Br. at 5 n.4, as

the Act creates a mechanism by which § 1605(a)(7) claimants may request that those claims be

treated as if brought under § 1605A. Specifically, the Act provides, on the one hand, that

[w]ith respect to any action that (i) was brought under section
1605(a)(7) of title 28, United States Code, or [the Flatow
Amendment], before the date of the enactment of this Act, (ii)
relied upon either such provision as creating a cause of action, (iii)
has been adversely affected on the grounds that either or both of
these provisions fail to create a cause of action against the state,

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 and (iv) as of such date of enactment, is before the courts in any
form, . . . that action, and any judgment in the action shall, on
motion made by plaintiffs to the United States district court where
the action was initially brought, or judgment in the action was
initially entered, be given effect as if the action had originally been
filed under section 1605A(c) of title 28, United States Code.

NDAA § 1083(c)(2)(A) (the “prior case procedures”). In other words, “Congress gave FSIA

plaintiffs in cases pending before the courts . . . an opportunity to have the newly-enacted

provision retroactively applied to their cases.” Rimkus v. Islamic Republic of Iran, 750 F. Supp.

2d 163, 169 (D.D.C. 2010). Additionally, the Act provides, on the other hand, that

[i]f 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.

Id. at § 1803(c)(3) (the “related case procedures”). This provision permits “a plaintiff [to] bring

a separate action under § 1605A within a specified range following final judgment in the earlier

proceeding.” Rimkus, 750 F. Supp. 2d at 181.

Despite Congress’ clear statement as to the 2008 Amendment’s “Application to Pending

Cases,” NDAA § 1083(c) (title), the government argues that the special master provision in §

1605A limits payment to person appointed under § 1605A(e)(1), and that because there was no

authority to appoint special masters under § 1605A(e)(1) since paragraph (1) did not exist prior

to 2008, the Court cannot order compensation for special masters for work undertaken prior to

the 2008 Amendments. Gov. Br. at 4–5. This argument may be a correct reading of § 1605A(e)

in isolation; however, the government’s position ignores the provision for retroactivity found

elsewhere. The NDAA expressly provides that plaintiffs in future FSIA cases involving events

occurring prior to the 2008 Amendments—such as plaintiffs here—may seek to have § 1605A

applied to their case. Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 57 (D.D.C. 2010).

8
This is therefore not a situation where—as in the case upon which the government relies—a

statute has been passed with several provisions, some of which contain retroactive language and

some of which do not. See Martin, 527 U.S. at 353–56 (examining statute in which first

provision lacked any express mandate as to retroactivity while second contained “explicitly

retroactive language”). In such a case, it is a straightforward conclusion that certain provisions

should be applied retroactively, while others should not. Here, by contrast, the NDAA contains

two sections: the first replaces § 1605(a)(7) with an entirely new state-sponsored terrorism

exception—§ 1605A—which itself includes a number of provisions, NDAA § 1083(a); and the

second declares that this entire new exception can be applied retroactively. NDAA § 1083(c).

In light of this structure, the question of retroactivity does not turn on the language of a specific

provision in § 1605A, but rather is dependent upon whether the method in § 1083(c) used by

plaintiffs—the prior case procedures or the related case procedures—mandates retroactive

application of § 1605A.

With respect to the prior case procedures, the NDAA instructs courts to treat a case

converted into a § 1605A suit under that section “as if the action had originally been filed” under

§ 1605A. NDAA § 1083(c)(2)(A) (emphasis added). As an initial matter, the explicit provision

for the application of § 1605A to “prior” cases is an unambiguous directive to apply the 2008

Amendments to litigation already in progress under the former state-sponsored terrorism

exception. Cf. Felter v. Salazar, 679 F. Supp. 2d 1, 6 (D.D.C. 2010) (noting that statutes need

not contain term “retroactive” to require retroactive application). And if this directive for courts

to treat suits re-filed under § 1083(c) as if they had originally been filed under § 1605A is to

have any meaning at all, courts must treat every aspect of the litigation as though it was done

pursuant to the current state-sponsored terrorism exception. Thus, courts have awarded punitive

9
damages in cases originally brought under § 1605(a)(7) even though such punitive damages were

unavailable in suits under the prior state-sponsored terrorism exception. Murphy, 740 F. Supp.

2d at 79–83. Courts have permitted plaintiffs to add claims under § 1605A(d)—which are only

permitted “[a]fter an action has been brought under” § 1605A, 28 U.S.C. § 1605A(d)—even

though the original action was filed under § 1605(a)(7). Certain Underwriters at Lloyds London

v. Great Socialist People’s Libyan Arab Jamahiriya, 677 F. Supp. 2d 270 (D.D.C. 2010). And

courts have allowed plaintiffs to pursue execution measures reserved only for judgments under §

1605A despite the underlying claims having been originally filed as § 1605(a)(7) actions. Order,

Mar. 31, 2011, Heiser v. Islamic Republic of Iran, No. 00 Civ. 2329 [180]. And these provisions

for a federal cause of action, punitive damages, and pre-judgment attachment are not applied

retroactively because each of them contain statements that they apply to pending cases; instead,

courts have applied them in cases converted pursuant to the prior case procedures because each

provision is part of § 1605A, and § 1605A is made retroactive in its entirety by § 1083(c)(2) of

the NDAA. Here, the same mechanism that provides for retroactive application of §§ 1605A(c)

& 1605A(d) also applies to § 1605A(e)—because cases converted pursuant to the prior case

procedures are treated as if they “had originally been filed” under § 1605A, NDAA § 1083(c)(2),

special masters appointed in such cases are treated as if they were appointed “to hear damage

claims brought under” § 1605A, in accordance with the requirements of § 1605A(e)(1). To hold

otherwise would improperly eliminate the retroactive effect expressly provided for in the

NDAA. 3 There is thus no need to “resort to speculation or judicial default rules” when the

3
This conclusion does not, as the government suggests, render the phrase “appointed under paragraph (1)”
meaningless. Gov. Br. at 5. Paragraph (1) of the relevant provision states that courts may appoint special masters in
actions “brought under this section,” while paragraph (2) provides for compensation of special masters appointed
under paragraph (1). 28 U.S.C. § 1605A(e). A plain reading of this provision is that only special masters working
on cases brought pursuant to § 1605A (either initially or through the NDAA procedures)—and not special masters in
§ 1605(a)(7) actions—may rely on the compensation provisions. Indeed, this Court expressed this precise
understanding of these provisions when denying payment in cases where plaintiffs did not seek to have the Court

10
NDAA creates “a clear mechanism by which cases that were previously decided or pending

under § 1605(a)(7) may be brought within the reach of the revised terrorism exception § 1605A,”

In re Terrorism Litig., 659 F. Supp. 2d at 111, and the Court will not undermine the intent of

Congress 4—expressed in § 1083(c)(2)—to fashion a distinction between provisions of § 1605A

that is in plain conflict with the statutory text. See Brown v. Secretary of Army, 78 F.3d 645, 648

(D.C. Cir. 1996) (holding where congressional command of retroactivity can be found in relevant

statutory text, no further inquiry is necessary).

For these same reasons, the government’s contention that an order of payment would

encroach upon Congress’ constitutional control over the use of treasury funds, Gov. Br. at 6, is

an empty concern. The government is correct that the Court must adhere to “the limitation

Congress imposed on the Court’s authority to compensate special masters out of the emergency

reserve of the Crime Victims Fund.” Id. However, in light of the Court’s above holding that

Congress—through the language of § 1083(c)(2)—did in fact authorize courts to direct payment

for pre-NDAA work in cases initially brought pursuant to § 1605(a)(7) but re-filed under §

treat the suit as if brought under § 1605A. See Order, Peterson, No. 01 Civ. 2094 [430] (“[T]hese consolidated
cases are maintained under . . . § 1605(a)(7), rather than the new terrorism exception, § 1605A . . . . Accordingly, the
new provisions in 28 U.S.C. § 1605A(e) are not applicable to these particular cases because § 1605A(e)(2) provides
for the payment of special masters only in those cases brought or maintained pursuant to the new enactment, §
1605A.”). And while the inability of plaintiffs to assert new claims under § 1605(a)(7) may eventually render this
phrase moot, at the time the NDAA was enacted a sufficient number of cases existed under § 1605(a)(7) to justify
the inclusion of a clause limiting payment of special masters.
4
Though the Court need not resort to legislative history, evidence in the record remains a useful guide.
Felter, 679 F. Supp. 2d at 5. Here, legislative history indicates that Congress intended every provision of § 1605A
to apply retroactively. The bill summary accompanying the NDAA explains that § 1083 allows “(1) a private right
of action by [a qualified] claimant; and (2) U.S. courts to appoint special masters to hear such claims,” and stated
that the Act “[p]rovides application to pending cases.” Congressional Research Service, Summary of Public Law
110-181 (2008). Similarly, the House Report declared that § 1083 “would allow any case previously brought under
the state-sponsor of terrorism exception to the FSIA under section 1605(a)(7) . . . and which is still before a court, to
be refilled as if the original claim had been filed under the provisions of this section.” H. Rept. No. 10-477, at 1001
(2007) (emphasis added). In other words, “[c]laims brought prior to the enactment of [the NDAA] against a foreign
state that at the time was designated as a state sponsor of terrorism . . . would still be heard under this section.” Id.
And though this Report was for the predecessor bill—H.R. 1585—to the legislation that was signed and became the
NDAA—H.R. 4986—President Bush vetoed H.R. 1585 over concerns—which were remedied by H.R. 4986—that
Iraq was exposed to liability under the first bill. Congressional Research Service, Suits Against Terrorist States by
Victims of Terrorism 48 & n.179 (2008). Because the two bills are identical in all other respects, Congress’
statement concerning H.R. 1585’s retroactive application remains valid evidence of its intent as to the NDAA.

11
1605A, there is no concern that an order of payment would invade upon the legislature’s

province. Unlike in OPM v. Richmond, in which the compensation sought by the plaintiff

“would be in direct contravention of the federal statute upon which [the] ultimate claim to funds

must rest,” 496 U.S. 414, 424 (1990), here the relevant statutes—§ 1605A and § 1083(c)(2) of

the NDAA—expressly authorize such payments. Any award for pre-2008 work would thus

spend treasury funds “according to the letter of the difficult judgments reached by Congress,” id.

at 428, and would not risk any improper exercise of judicial authority.

In contrast to the statement of retroactivity in § 1083(c)(2), the provision of the NDAA

dealing with “related” suits lacks any express directive. The related case procedures contemplate

the existence of two cases—the original suit brought under § 1605(a)(7) and the new suit brought

under § 1605A. NDAA § 1083(c)(3). But this new suit is precisely that—a new suit. Nothing

in the text of § 1083(c)(3) permits conversion of any pending suit into a § 1605A action; indeed,

the section explicitly distinguishes between the action “commenced under section 1605(a)(7)”

and the “other action” subsequently be brought under § 1605A. Id. (emphasis added). In other

words, “the NDAA provides that plaintiffs may bring a new action ‘arising out of the same act or

incident’ of a prior action that was ‘timely commenced.’” Rimkus, 750 F. Supp. 2d at 178

(emphasis added); see Roeder v. Islamic Republic of Iran, 742 F. Supp. 2d 1, 6 (D.D.C. 2010)

(“Taken together, § 1605A 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.”) (emphasis

in original). And any new case under § 1605A would, by definition, be brought after the

enactment of the NDAA. Thus, § 1083(c)(3) does not implicate any retroactivity concerns since

cases brought under the related case procedures are filed after the 2008 Amendments, while the

statute itself does not instruct courts to apply § 1605A to pending cases.

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 B. Dr. Meek’s Request for Payment in this Case

This case was brought pursuant to the former state-sponsored terrorism exception, and

thus after the 2008 Amendments plaintiffs were eligible to move pursuant to § 1083(c)(2) to

have the case converted into a § 1605A action. Plaintiffs, however, missed the statutory deadline

for such a motion. See NDAA § 1083(c)(2)(C)(ii) (requiring plaintiffs to move “within the 60-

day period beginning on the date of the enactment of [the NDAA]”); see also Anderson v.

Islamic Republic of Iran, 753 F. Supp. 2d 68, 2010 U.S. Dist. LEXIS 126457, at *28 n.7 (D.D.C.

Dec. 1, 2010) (“Congress explicitly limited the use of the prior action procedures to a strict 60-

day period following the Act.”). Instead, plaintiffs filed an Amended Complaint in November

2009 stating claims for relief under § 1605A. Though “the act of filing an Amended Complaint .

. . is much more akin to the re-filing procedures outlined in the prior actions section of the

[NDAA],” this Court— recognizing that under a plaintiff’s request is untimely § 1083(c)(2)—

has previously held that “the filing of the Amended Complaint . . . constitute[s] invocation of the

related action procedures of the NDAA,” id. at *28–31 n.7, explaining:

[A]t the time plaintiffs filed the Amended Complaint, they were
proceeding with a timely action under § 1605(a)(7). Under the
plain terms of the NDAA, they were therefore eligible to bring a
separate action under the related action procedures outlined in the
Act. . . . In light of the fact that plaintiffs were capable of bringing
such a suit, the Court does not see why it should punish plaintiffs
for instead choosing to amend their original Complaint.

Moreover, no purpose is served by the Court requiring future
plaintiffs in timely § 1605(a)(7) actions to file an entirely separate
action . . . . There is no benefit to either plaintiffs or defendants of
having simultaneous litigations, while the costs to the Court—in
terms of time, repetition, and needless complication—has already
been established.

Id. at *29–30 n.7. For these same reasons, the Court in this case permitted plaintiffs to proceed

under § 1605A as though they invoked the related case procedures.

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 Though this case has proceeded under § 1605A despite being ineligible under the prior

case procedures, the inescapable reality is that the Court lacks the same clear congressional

directive for retroactive application that it possesses in cases converted under § 1083(c)(2).

While setting aside the requirement that plaintiffs file an entirely separate action—as envisioned

under § 1083(c)(3)—may be justifiable on grounds of prudence and judicial economy, those

same rationales cannot overcome the absence of any congressional statement as to retroactivity.

See Simon v. Republic of Iraq, 529 F.3d 1187, 1191 (D.C. Cir. 2008) (“[A] statute applies to a

pending case only if the Congress clearly so provides.”), reversed on other grounds by Republic

of Iraq v. Beaty, 129 S. Ct. 2183 (2009). As set forth above, the related case procedures in the

NDAA do not address retroactivity, other than to permit cases which might otherwise be time-

barred to be filed anew under § 1605A. The Court must therefore turn to the second step of the

retroactivity evaluation.

Where, as here, “there is no congressional directive on the temporal reach of the statute,”

courts must consider “whether the application of the statute to the conduct at issue would result

in a retroactive effect.” Martin, 527 U.S. at 352. If such a retroactive effect would be created,

courts, “in keeping with our ‘traditional presumption’ against retroactivity, [must] presume that

the statute does not apply to that conduct.” Id. Here, the relevant conduct—work performed by

Dr. Meek—occurred prior to the 2008 Amendments, and to permit payment pursuant to a

subsequently-enacted statute where that law does not expressly provide for such retroactive

application would be contrary to established practices and undermine Congress’ role in

determining the temporal scope of a new statute. The plain language of § 1083(c)(3)

demonstrates that Congress envisioned plaintiffs invoking the provision to bring new suits

related to prior events; not to convert prior actions themselves—an eventuality Congress instead

14
provided for in § 1083(c)(2). Thus, for sake of consistency and to respect the clear divisions

Congress articulated between the prior action procedures and the related action procedures, the

Court must treat the filing of plaintiffs’ Amended Complaint here as though it brought a “new”

suit at that time, and may only rely upon § 1605(e) when considering conduct occurring after the

initiation of that “new” action. In light of plaintiffs’ failure to invoke the prior action procedures

in a timely manner, the Court holds that it cannot direct payment for any work performed by Dr.

Meek prior to the filing of plaintiffs’ Amended Complaint.

IV. CONCLUSION

In enacting the 2008 Amendments, Congress sought to remedy a number of deficiencies

that had plagued victims of state-sponsored terrorism in the earlier FSIA suits. Among the fixes

proposed by Congress was the compensation of those individuals who, as this Court has

previously explained, undertake work that is not only tedious and time-consuming—requiring “a

very thorough, painstaking review of all the relevant testimony, medical evidence, economic

reports, and other evidence”—but that also imposes a significant emotional toll resulting from

extensive testimony on “the senseless carnage . . . and of the real and often very personal ways

that the deliberate slaughter of innocents inflicts deep emotional wounds.” In re Terrorism

Litig., 659 F. Supp. 2d at 110. In attempting, through these new provisions, to correct the

deeply-flawed system of justice available to victims of terrorism, Congress was explicit—both in

the text of the Act and its own record—that these new remedies should be applied retroactively

where possible and where plaintiffs seek to take advantage of them. Thus, for the reasons set

forth above, the Court holds that § 1605A(e)(2) of the FSIA authorizes courts to order payment

to special masters who undertook work prior to the 2008 Amendments where that work was

performed in cases ultimately re-filed under § 1605A pursuant to the procedures set forth in §

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1083(c)(2) of the NDAA but not where that work was performed in cases converted pursuant to

§ 1083(c)(3) of the Act. Plaintiffs here failed to apply for retroactive treatment of their case as

provided by Congress in the NDAA. As a result, the Court is only empowered to order payment

to Dr. Meek for work performed after November 30, 2009.

A separate Order consistent with these findings shall issue this date.

Signed by Royce C. Lamberth, Chief Judge, on May 31, 2011.

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