UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________
)
DAVID M. ROEDER, et al., )
)
Plaintiffs, )
) Civ. Action No. 08-487 (EGS)
v. )
)
THE ISLAMIC REPUBLIC OF IRAN, )
)
Defendant. )
_________________________________)
MEMORANDUM OPINION
This case represents the latest in a series of attempts by
plaintiffs, who were taken hostage by the government of the
Islamic Republic of Iran in 1979, to hold that country
responsible for their tremendous suffering. Plaintiffs have
attempted to sue Iran at various times since 1983, without
success. See, e.g., Persinger v. Islamic Republic of Iran, 729
F.2d 835 (D.C. Cir. 1984); McKeel v. Islamic Republic of Iran,
722 F.2d 582 (9th Cir. 1983); Ledgerwood v. State of Iran, 617
F. Supp. 311 (D.D.C. 1985). Plaintiffs again filed suit in this
Court in 2000, in Roeder v. Islamic Republic of Iran, Civ.
Action No. 00-3110(EGS) (hereinafter “Roeder I”). In April
2002, this Court dismissed plaintiffs’ claims. See Roeder I,
195 F. Supp. 2d 140 (D.D.C. 2002). This Court held that the
Foreign Sovereign Immunities Act (“FSIA”), as it existed in
2002, did not create a private right of action against the
government of Iran and accordingly that plaintiffs could not
pursue their claims against Iran. The Court of Appeals affirmed
the decision in 2003. See Roeder v. Islamic Republic of Iran,
333 F.3d 228 (D.C. Cir. 2003) (also referenced herein as Roeder
I).
In their previous cases, including Roeder I, plaintiffs
have been thwarted by the Algiers Accords, the 1981 executive,
bi-lateral agreement between the United States and Iran that
secured the hostages’ release. Both the Algiers Accords and its
implementing regulations contain express prohibitions barring
lawsuits arising out of the hostage taking. As this Court and
the Court of Appeals explained in Roeder I, Congress has the
authority to abrogate the Algiers Accords; however, it must act
clearly and unambiguously to do so. See Roeder I, 195 F. Supp.
2d at 168-170, aff’d 333 F.3d 237-238. In Roeder I, this
Circuit concluded that as of 2002 Congress had not acted clearly
or unambiguously, and thus dismissed plaintiffs’ claims. See
195 F. Supp.2d at 166; aff’d 333 F.3d at 238.
Now, several years later, plaintiffs have returned to this
Court and filed the instant case (hereinafter “Roeder II”).
Plaintiffs argue that in the years since Roeder I was decided,
Congress has created a private right of action which enables
them to proceed with a lawsuit against Iran. Specifically, they
2
argue that by enacting the National Defense Authorization Act
for Fiscal Year 2008, Congress has finally spoken clearly and
unambiguously, and created a cause of action to enable them to
sue Iran for damages. Compl. ¶ 20. The United States
intervened and shortly thereafter filed a motion to dismiss,
arguing that once again, Congress has failed to act with
sufficient clarity to abrogate the Algiers Accords. This Court
is thus confronted with the same fundamental question it faced
in 2002: whether Congress has acted definitively to abrogate the
Algiers Accords and enable plaintiffs to move forward in their
suit for damages. With an equal measure of frustration, regret,
and compassion the Court must conclude, once again, that
Congress has failed to provide plaintiffs with a cause of action
against Iran. Accordingly, this Court is not empowered to
provide plaintiffs the relief they seek and the United States’
motion to dismiss must be GRANTED.
I. BACKGROUND
A. Roeder I, and the State of the Law When it Was Decided
As set forth above, this Court does not write on a clean
slate: this case, like Roeder I, rests squarely on whether
Congress has abrogated the Algiers Accords. As explained in
Roeder I, the Algiers Accords is an international executive
agreement the United States entered into with the Islamic
Republic of Iran on January 19, 1981, in order to obtain the
3
freedom of the plaintiff hostages. Among other commitments
contained in the agreement, the United States agreed to “bar and
preclude the prosecution against Iran of any pending or future
claim of . . . a United States national arising out of the
events . . . related to (A) the seizure of the 52 United States
nationals on November 4, 1979, [and] (B) their subsequent
detention.” Declaration of the Government of the Democratic and
Popular Republic of Algeria, ¶ 11 (reprinted at 20 I.L.M. 223,
227).
The Roeder I courts explained that a statute must satisfy
one of two criteria to overturn a previously-enacted
international agreement such as the Algiers Accords. First, if
a later statute unambiguously conflicts with the international
agreement on its face, the unambiguous later statute will
prevail. See Roeder I, 195 F. Supp. 2d at 170 (citing Reid v.
Covert, 354 U.S. 1, 17 (1957); Whitney v. Robertson, 124 U.S.
190, 191 (1888); Committee of United States Citizens Living in
Nicaragua v. Reagan, 859 F.2d 929, 936-37 (D.C. Cir. 1988);
South African Airways v. Dole, 817 F.2d 119, 126 (D.C. Cir.
1987)). If the statute is ambiguous, however, a Court will not
interpret it to modify or abrogate a treaty or executive
agreement “unless such purpose of Congress has been clearly
expressed.” Bennett v. Islamic Republic of Iran, No. 09-5147,
2010 WL 3515811 at *4 (D.C. Cir. Sept. 10, 2010) (quotation
4
omitted, citing Roeder I, 333 F.3d at 237). As the Court of
Appeals explained:
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.
Roeder I, 333 F.3d at 238 (internal citation omitted).
Accordingly, in Roeder I, the courts determined that an Act
of Congress will only abrogate the Algiers Accords’ bar to the
hostages’ ability to sue if it (1) clearly and unambiguously
gives the Court subject matter jurisdiction to hear plaintiffs’
case, and (2) clearly and unambiguously creates a cause of
action against Iran for the 1979 hostage taking. See Roeder I,
195 F. Supp. 2d at 163, 167, aff’d 333 F.3d at 236-237. This
Court found, and the D.C. Circuit affirmed, that when Roeder I
was decided, Congress had provided the first, but not the
second. The Roeder I courts’ analysis of subject matter
jurisdiction and private rights of action are briefly summarized
in turn.
As a general matter, the FSIA grants foreign states
immunity from liability in United States courts. Federal courts
thus generally lack subject matter jurisdiction over claims
5
against a foreign state. Congress has, however, provided
several specific exceptions to this immunity. See 28 U.S.C.
§ 1604; see also Roeder I, 333 F.3d at 235. The Anti-Terrorism
Act of 1996 created one such exception, and allowed jurisdiction
over foreign states for certain state-sponsored acts of
terrorism. See 28 U.S.C. § 1605(a)(7) (1996). Initially, the
1979 hostage-taking of the Roeder I plaintiffs did not fall
within that exception; however, Congress amended the law in 2001
to specifically waive sovereign immunity for acts “related to
Case Number 1:00CV03110(EGS)1 in the United States District Court
for the District of Columbia.” Pub. L. 107-77, 115 Stat. 748
(2001) (“Section 626(c)”). Thus, Section 626(c) amended the
FSIA to remove sovereign immunity and create jurisdiction for
any acts that related to Roeder I. See 195 F. Supp. 2d at 163;
aff’d 333 F.3d at 235. The Roeder I courts found that Congress
had therefore clearly and unambiguously created subject matter
jurisdiction for plaintiffs’ claims to be heard in this Court.
The Roeder I courts next turned to the question of whether
the 2001 amendments to the FSIA unambiguously created a cause of
action for plaintiffs to sue Iran. The courts found that
1
The text originally read “. . . (ESG) . . .” but was corrected
in January 2002 to properly set forth the undersigned’s
initials. See Pub. L. 107-117, 115 Stat. 2230 (2002).
6
Congress had not unambiguously created such a cause of action.
As this Court explained, while the exceptions to sovereign
immunity “allowed federal courts to have jurisdiction over
claims against foreign governments arising [out] of state
sponsored terrorist activity. . . . [w]hat the [exceptions] did
not do was create a private cause of action for the victims of
state-sponsored terrorism. Like all the other exceptions to
foreign sovereign immunity in the FSIA, victims of state-
sponsored terrorism had to look to other laws to provide a cause
of action against the foreign state.” Roeder I, 195 F. Supp.
2d. at 171 (citations omitted). When Roeder I was decided, the
sole unambiguous private cause of action for victims of
terrorism under federal law was conferred by the Flatow
Amendment of 1996, 28 U.S.C. § 1605 note, which only provided “a
private right of action against officials, employees and agents
of a foreign state, not against the foreign state itself.”
Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033
(D.C. Cir. 2004)(superseded by statute); see also In re: Islamic
Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 46
(D.D.C. 2009). The 2001 amendments to the FSIA did not clearly
expand this cause of action.
As such, the courts found that the 2001 amendments to the
FSIA were ambiguous. While it was possible to interpret the
amendments as creating a new private right of action for
7
plaintiffs, it was equally plausible to read the amendments to
confer subject matter jurisdiction over the lawsuit but not to
create a cause of action for plaintiffs to sue the state of
Iran. See 195 F. Supp. 2d at 171; aff’d 333 F.3d at 236.
Because the Courts found the statutory text ambiguous, they
examined the statute and the legislative history to determine
whether Congress expressed a clear intent to abrogate the
Algiers Accords. See id. Neither this Court nor the D.C.
Circuit found a sufficiently clear manifestation of
congressional intent. Accordingly, because Congress had neither
created an unambiguous cause of action nor demonstrated a clear
intent to abrogate the Algiers Accords, plaintiffs were barred
from pursuing their claims against the Islamic Republic of Iran
in Roeder I.
B. Congressional Efforts After Roeder I, and the Existing
State of the Law.
Following Roeder I, several bills were introduced in
Congress which, if enacted, would have undoubtedly provided the
1979 hostages with a viable means to sue Iran. In a 2008 Report
for Congress, the Congressional Research Service details
attempts in the 107th, 108th, 109th, and 110th sessions of Congress
“to enact legislation that would explicitly abrogate the
provision of the Algiers Accords barring the hostages’ suit.”
JENNIFER K. ELSEA, CONGRESSIONAL RESEARCH SERV., SUITS AGAINST
8
TERRORIST STATES BY VICTIMS OF TERRORISM (2008), p. CRS-31,
available at http://www.fas.org/sgp/crs/terror/RL31258.pdf. As
set forth more fully in the Report, Congress has considered
multiple bills containing language expressly nullifying the
relevant provisions of the Algiers Accords. Id. at CRS-31, -32.
None of that language, however, was enacted into law. Id.
Rather, in January of 2008, Congress enacted and the
President signed into law the National Defense Authorization Act
of 2008 (“NDAA”), Pub. L. 110-181, 122 Stat. 3 (2008), which
precipitated the filing of the instant lawsuit. For the
purposes of resolving the issues in this case, the only relevant
provision is Section 1083, which has been codified at 28 U.S.C.
§ 1605A. The Court will provide a brief overview of the three
relevant provisions of § 1083 here; detailed analysis of each
provision will be set forth infra.
i. 28 U.S.C. § 1605A(a)
Title 28 U.S.C. § 1605A(a) reformulates the terrorism
exceptions to sovereign immunity. It incorporates one new
provision that encompasses both: (1) the terrorism exception to
the jurisdictional immunity of a foreign state, which originally
appeared in the Anti-Terrorism Act of 1996, and (2) the specific
exception to sovereign immunity for Roeder I that was set forth
in § 626(c).
9
ii. 28 U.S.C. §§ 1605A(c) and 1605A Note
Title 28 U.S.C. § 1605A(c) is titled “Private Right of
Action.” It creates a cause of action for damages against a
“foreign state that is or was a state sponsor of terrorism”
under certain circumstances which are set forth elsewhere in the
statute. See 28 U.S.C. § 1605A(c). Only one such circumstance
is relevant for the purposes of this case. This circumstance is
set forth at Section 1083(c) of the NDAA, codified as 28 U.S.C.
§ 1605A note, and provides that certain cases that are otherwise
time-barred may be filed or refiled under the new statute.
Section 1083(c) delineates the scope of retroactive relief
available under § 1605A. It sets forth two situations where the
NDAA may apply to cases filed prior to its enactment. First,
section 1083(c)(2), titled “Prior Actions,” provides that
certain cases which were still pending before the courts under
the preceding statutory scheme when the NDAA was enacted may be
refiled under the NDAA. By refiling, claimants may take
advantage of the new statute’s provisions, which are
significantly more favorable to terrorism plaintiffs in general.
Second, section 1083(c)(3), titled “Related Actions,” provides
that certain new actions may be filed under the NDAA if they
arose out of the same act or incident as cases filed under the
previous statutory scheme. It reads, in relevant part,
10
(3) RELATED ACTIONS. - If 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 [this section], if the action is commenced
not later than the latter of 60 days after —
(A) the date of the entry of judgment in the
original action; or
(B) the date of the enactment of this Act [Jan.
28, 2008].
Taken together, § 1605A(c) 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 - so
long as the new action is “related” to another action that has
been timely commenced under the FSIA and Anti-Terrorism Act of
1996.
II. PROCEDURAL HISTORY
On March 21, 2008, plaintiffs commenced this action against
the Islamic Republic of Iran alleging violations of 28 U.S.C. §
1605A. They assert that Roeder II is “related” to Roeder I, as
defined in Section 1083(c)(3) of the NDAA (28 U.S.C. § 1605A
note) and therefore that they have a cause of action under §
1605A(c). Compl. p. 2, see also ¶¶ 21-24. Specifically, they
allege that “[t]his action is a related action to Roeder v.
Islamic Republic of Iran, et al., Case No. 1:00CV03110(EGS), and
arises out of the same act or incident which was timely
commenced under section 1605(a)(7) of title 28 in this Court.
11
As such, this action qualifies as a related action under 28
U.S.C. § 1605A.” Compl. p. 2. They seek 6.6 billion dollars in
compensatory and punitive damages.
In light of the events of Roeder I, namely Iran’s refusal
to appear in this Court and the United States’ last minute
intervention in the litigation, the Court extended an invitation
to the Department of State to “file a statement of interest in
the present case, if appropriate, pursuant to 28 U.S.C. § 517.”
Doc. No. 7, Letter from Hon. Emmet G. Sullivan to John B.
Bellinger III, Legal Advisor, U.S. Department of State, April
11, 2008. The government responded in June 2008, stating that
if plaintiffs were able to perfect service on Iran and the case
were to go forward, “the United States may well have an interest
in participating in this litigation.” Doc. No. 11, Report of
United States, June 13, 2008.
Plaintiffs served Iran at the end of November 2008, but
Iran elected not to appear. In April 2009, plaintiffs filed a
motion for default judgment as to liability. Immediately
thereafter, the United States moved to intervene in this lawsuit
and subsequently filed a motion to dismiss. In early October
2009, plaintiffs filed a notice of supplemental authority: In re
Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31
(D.D.C. 2009). Following briefing on this supplemental
authority, this Court heard oral argument on the government’s
12
motion to dismiss on April 21, 2010. At the hearing, the Court
expressed its concern about the lack of clarity in § 1083. The
Court continued the motions hearing for 30 days and directed the
parties to inform the Court in the event of any further
Congressional developments. The Court reconvened the hearing on
May 27, 2010, confirmed with the parties that no Congressional
action had been taken, and took the case under advisement. The
parties’ motions are now ripe for resolution by the Court.
III. ANALYSIS
Pending before the Court is the United States’ motion to
dismiss for failure to state a claim. In its motion to dismiss,
the government concedes that § 1083 of the NDAA provides a cause
of action against Iran under certain circumstances, but argues
that those circumstances do not unambiguously include
plaintiffs’ case. Thus, the government argues, Congress has not
clearly abrogated the Algiers Accords’ substantive bar to this
litigation. The United States argues that while § 1083 creates
substantive rights for other victims of terrorism, it did not
cure the 1979 hostages’ inability to pursue claims against Iran.
Plaintiffs raise three main arguments in opposition. First,
they argue that Congress unambiguously created a private right
of action for plaintiffs, in particular, to sue Iran pursuant to
§ 1605A(a)(2)(b). Alternatively, plaintiffs argue that
13
§ 1605A(c) and NDAA section 1083(c), taken together,
unambiguously create a cause of action because Roeder I
qualifies as a “related action” to Roeder II as that term is
defined by § 1083(c)(3). Finally, plaintiffs argue that “[e]ven
if Congress [] enacted ambiguous statutory language . . . § 1083
would still abrogate the Algiers Accords because Congress’s
intent to do so is overwhelmingly clear.” Pls.’ Opp’n at 6.
After careful consideration of the parties’ arguments and
the applicable law, the Court finds that plaintiffs’ ability to
sue the government of Iran has not changed since Roeder I:
§ 1083 does not unambiguously create a cause of action for these
plaintiffs against Iran. The Court’s holding in Roeder I
applies equally to the new statutory scheme: “Because th[e]
statute is ambiguous, and because [§ 1083] [n]ever mentions the
Algiers Accords in statutory text or legislative history, this
Court cannot interpret this legislation to implicitly abrogate a
binding international agreement. Therefore this Court must
dismiss plaintiffs’ claims.” 195 F. Supp. 2d at 166.
A. Congress Must Act Clearly and Unambiguously to
Overturn the Algiers Accords.
The parties agree that this case, like Roeder I, turns on
whether a later-in-time statute abrogates the Algiers Accords.
On September 10, 2010, the D.C. Circuit reaffirmed the demanding
standard a party must meet in order to show that a treaty or
14
executive agreement has been abrogated or substantively modified
by a later statute. See Bennett v. Islamic Republic of Iran,
2010 WL 3515811 at *4 (citing Roeder I, 333 F.3d at 237). As
fully set forth in the Roeder I decisions, and recapitulated in
Section I.A supra, it is not enough to show that a later-in-time
statute may be read to abrogate a previously-enacted
international agreement. Rather, the later statute must
unambiguously conflict with the agreement in its language and
effect. A statute is only unambiguous if it is not “reasonably
susceptible to more than one meaning.” McCreary v. Offner, 172
F.3d 76, 82 (D.C. Cir. 1999); see also U.S. v. Villanueva-
Sotelo, 515 F.3d 1234, 1237 (D.C. Cir. 2008) (statute is
ambiguous when more than one interpretation is possible); Air
Transp. Ass'n of Am. v. FAA, 169 F.3d 1, 4 (D.C. Cir. 1999)
(finding statute ambiguous because, “[a]lthough the inference
petitioner would draw as to the statute’s meaning is not by any
means unreasonable, it is also not inevitable.”). If the later
statute is not unambiguous on its face, it must contain a clear
expression of Congressional intent to abrogate the earlier
agreement. See Roeder I, 195 F. Supp. 2d at 169-170 (collecting
cases); see also 333 F.3d at 237-38 (collecting cases). As set
forth by this Court in Roeder I:
The Supreme Court has provided some guidance as to
what it will accept and not accept as a clear
expression of legislative intent in this context. The
15
Supreme Court has unequivocally held that legislative
silence is not sufficient to abrogate a treaty or a
bi-lateral executive international agreement. When a
later statute conflicts with an earlier agreement, and
Congress has neither mentioned the agreement in the
text of the statute nor in the legislative history of
the statute, the Supreme Court has conclusively held
that it can not find the requisite Congressional
intent to abrogate.
Roeder I, 195 F. Supp. 2d at 175 (internal citations and
quotations omitted); aff’d 333 F.3d at 238. The law on this
issue has not changed since Roeder I was decided. See, e.g.,
Medellin v. Texas, 552 U.S. 491, 509 n.5 (2008).2
In short, when interpreting newly created federal
legislation which covers the same legal ground as pre-existing
international agreements, this Court’s role is extremely
limited. As set forth in Roeder I,
There are two branches of government that are
empowered to abrogate and rescind the Algiers Accords,
and the judiciary is not one of them. The political
2
The Medellin Court cited Cook v. United States, 288 U.S. 102,
119-120 (1933), for the proposition that a later-in-time federal
statute supersedes inconsistent treaty provisions. Cook, in
turn, recited the already-settled principle that “a treaty will
not be deemed to have been abrogated or modified by a later
statute, unless such purpose on the part of Congress has been
clearly expressed. Here, the contrary appears. The committee
reports and the debates upon the act of 1930, like the re-
enacted section itself, make no reference to the Treaty.” Id.
(citations omitted). Accordingly, the Cook court found that the
treaty at issue in that case remained unaffected by the later-
in-time statute. Id.
16
considerations that must be balanced prior to such a
decision are beyond both the expertise and the mandate
of this Court. Unless and until either the
legislative or executive branch acts clearly and
decisively, this Court cannot grant plaintiffs the
relief they seek.
195 F. Supp. 2d at 145.
B. Section 1605A(a) Does Not Unambiguously Create A Cause
of Action for Plaintiffs.
In their opposition to the motion to dismiss, plaintiffs
argue that § 1605A(a)(2)(B) unambiguously creates a cause of
action specifically for them. Pls.’ Opp’n 6-19. The government
counters that § 1605A(a)(2)(B) only confers subject matter
jurisdiction on the courts; it does not create a cause of action
for plaintiffs to sue Iran. After careful consideration, and as
explained more fully below, the Court finds that the text and
structure of the statute do not support plaintiffs’
construction. Moreover, plaintiffs’ construction of
§ 1605A(a)(2)(B) ignores the binding authority of Roeder I, in
which the D.C. Circuit held that substantially identical
language in a predecessor statute did not unambiguously create a
cause of action. Accordingly, the Court concludes that
§ 1605A(a)(2)(B) does not provide plaintiffs with a cause of
action against Iran.
17
Section 1605A(a) 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 . . . 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 . . .
(2) CLAIM HEARD. The court shall hear a claim under
this section if –
(A)(i)(I) the foreign state was designated as a
state sponsor of terrorism at the time the act
described in paragraph (1) occurred . . . ; or
[...]
(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.
28 U.S.C. § 1605A(a).
In order for statutory construction to withstand scrutiny,
“at a minimum, [it] must account for a statute’s full text,
langauge as well as punctuation, structure and subject matter.”
U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of America,
Inc., 508 U.S. 439, 455 (1993). Plaintiffs’ proposed reading of
the statute violates this irreducible minimum. The text of
§ 1605A(a) refers only to subject matter jurisdiction; it is
separate and apart from § 1605A(c), which creates a cause of
18
action.3 Because § 1605A(c), not § 1605A(a), creates a cause of
action, and because the reference to Roeder I occurs only in the
jurisdictional section, § 1605A(a), the Court concludes that
§ 1605A(a) does not create a cause of action for plaintiffs to
sue Iran.
Plaintiffs’ argument is further undermined when considered
in light of the history of this case in particular, where the
outcome of Roeder I hinged on the distinction between subject
matter jurisdiction and private rights of action. As discussed
in Section I supra, § 1605A(a)(2)(B) is nearly identical to the
language of former § 626(c), which was central to the Court’s
analysis in Roeder I. This Court found that while § 626(c) did
create subject matter jurisdiction for the Court to hear
plaintiffs’ claims, it did not abrogate the Algiers Accords
because it did not create a cause of action for plaintiffs
3
Section § 1605A(c) is aptly entitled “Private Right of Action.”
See 28 U.S.C. § 1605A(c). Unlike the jurisdictional portion of
the statute, § 1605A(c) contains no reference to Roeder I, nor
does it refer to or incorporate the jurisdictional subsection
where Roeder I is mentioned. Id. Rather, § 1605A(c)
specifically creates a cause of action with respect to a foreign
state “that is or was a state sponsor of terrorism as described
in [] § [1605A](a)(2)(A)(i).” Id. It is noteworthy that
Congress chose to explicitly incorporate another jurisdictional
provision of the statute – § 1605A(a)(2)(A)(i) - into the
section governing private rights of action, but omitted
§ (a)(2)(B), the jurisdictional provision which references
Roeder I. Clearly, had Congress intended to include § (a)(2)(B)
in the section governing private rights of action, it could have
done so.
19
against Iran. See Roeder I, 195 F. Supp. 2d at 172. The D.C.
Circuit explicitly affirmed this point, holding that § 626(c)
spoke “only to the antecedent question of Iran’s immunity from
suit in United States courts.” 333 F.3d at 236.
Despite this Circuit’s explicit holdings that § 626(c) was
not sufficient to create a private right of action for the
hostages to sue Iran, Congress chose to cut and paste the same,
insufficient language from § 626(c) in the NDAA, and to place it
in the jurisdictional section of the legislation only, not the
section entitled “Private Right of Action.” As plaintiffs
themselves point out, courts normally assume that “when Congress
enacts statutes, it is aware of relevant judicial precedent.”
Pls.’ Notice of Supp. Auth. at 1, (quoting Merck & Co. v.
Reynolds, 130 S. Ct. 1784, 1795 (2010)); see also, Pls.’ Opp’n
at 1, 6, 7, n.6, 9 (citing, e.g., Boumediene v. Bush, 553 U.S.
723, 738 (2008)). Given the history and precedent regarding the
crucial distinction between creation of subject matter
jurisdiction and creation of a cause of action as regards these
very plaintiffs, “the reasons for making this assumption are
particularly strong here.” Merck, 130 S. Ct. at 1795-96.
Plaintiffs make several additional arguments in support of
their claim that § 1605A(a)(2)(B) unambiguously creates a cause
of action against Iran. For the reasons discussed below, their
arguments are unpersuasive.
20
First, plaintiffs assert broadly that “Congress’s action in
enacting § 1083 of the NDAA is entirely inexplicable other than
as intended to permit plaintiffs to sue Iran and thereby to
abrogate any bar to the claim under the Algiers Accords.” Pls.’
Opp’n at 4, see also 10. This argument is plainly without
merit. As the government correctly notes, § 1083 is a statute
of general applicability intended to permit U.S. nationals to
sue many state sponsors of terrorism in U.S. courts, and is
directly relevant to various cases that were pending against
Iran, Cuba, and Libya, among other nations, when it was passed.
Gov’t Reply at 6. As noted by the D.C. Circuit and by another
judge on this Court, § 1083 “is more comprehensive and more
favorable to [terrorism plaintiffs generally] because it adds a
broad array of substantive rights and remedies that simply were
not available in actions under § 1605(a)(7).” In re Islamic
Republic of Iran Terrorism Litig., 659 F. Supp. 2d at 58; see
also Simon et al. v. Republic of Iraq, 529 F.3d 1187, 1190 (D.C.
Cir. 2008), rev’d on other grounds, 129 S.Ct. 2183 (2009)
(explaining NDAA’s advantages to terrorism plaintiffs generally,
including limiting foreign states’ appeal rights, permitting
plaintiffs to attach property in advance of judgment, and
providing for punitive damages). Plaintiffs’ argument that
§ 1083 is inexplicable and pointless because it does not enable
21
them to sue Iran for the 1979 hostage taking is simply not
persuasive.
Second, plaintiffs argue that § 1605A’s “identification of
plaintiffs would be utterly without purpose” because a conferral
of subject matter jurisdiction without creation of a private
right of action would be meaningless, effectively leaving
plaintiffs in the same position they were after the enactment of
§ 626(c). Pls.’ Opp’n at 2. However, plaintiffs fail to
acknowledge that the D.C. Circuit considered and rejected the
identical argument in Roeder I. There, the Circuit held that
§ 626(c)’s conferral of subject matter jurisdiction was not “a
futile thing” because it gave plaintiffs the opportunity to
argue issues of substantive law, even if they did not ultimately
prevail on those issues. 333 F.3d at 238. The same holds true
here. Section 1083 of the NDAA repeals §§ 1605(a)(7) and 626(c)
and replaces them with a new statute – § 1605A. See, e.g., In
re: Iran Terrorism Litig., 659 F. Supp. 2d at 58. In choosing
to include the repealed language of § 626(c) in the new statute,
Congress affirmed its intent to remove Iran’s sovereign immunity
with respect to plaintiffs, and to permit the courts to continue
to grapple with these issues on their merits. This does not
mean, however, that Congress created a private right of action
for the plaintiffs.
22
In a related argument, plaintiffs maintain that
§ 1605A(a)(2)(B) was a direct response to Roeder I, and, citing
Boumediene v. Bush, they admonish this Court to respect the
“ongoing dialogue between and among the branches of Government.”
Pls.’ Opp’n at 6, 9 (quoting Boumediene, 553 U.S. at 738).
Plaintiffs offer no support for this argument. Moreover, they
fail to acknowledge the fact that (i) five years passed between
Roeder I and the NDAA; and (ii) during those five years
legislators tried - and failed - to pass legislation that would
have responded to Roeder I by expressly abrogating the Algiers
Accords. See Section I.B supra. Moreover, even if the NDAA was
intended as a direct response to Roeder I, it does not mean that
it would be an effective one: Congress directly responded to
Roeder I by passing section 626(c) while the litigation was
ongoing, and both this Court and the D.C. Circuit found that
response was insufficient to abrogate the Algiers Accords and
change the outcome of the litigation.
Turning to the text of the statute, plaintiffs argue that
the opening phrase of § 1605A(a)(2) “[t]he Court shall hear a
claim under this section if --” means that Congress
unambiguously created a cause of action for plaintiffs. Pls.’
Opp’n 7-12. However, plaintiffs do not address the arguments set
forth above that the text and structure of the statute as a
whole clearly separate jurisdictional prerequisites from the
23
elements of a private right of action. See, e.g., U.S. Nat’l
Bank of Oregon, 508 U.S. at 455; King v. St. Vincent's Hosp. 502
U.S. 215, 221 (1991) (enunciating the “cardinal rule that a
statute is to be read as a whole, since the meaning of statutory
language, plain or not, depends on context. Words are not
pebbles in alien juxtaposition; they have only a communal
existence; and not only does the meaning of each interpenetrate
the other, but all in their aggregate take their purport from
the setting in which they are used. . . .”) (internal citations
and quotations omitted). Plaintiffs rely on a number of
attorneys’ fees cases for the proposition that the phrase “under
this section” unambiguously creates a cause of action. Pls.’
Opp’n at 7-8 (citing Ardestani v. INS, 502 U.S. 129, 134 (1991);
Blackman v. Dist. of Columbia, 456 F.3d 167, 176-77 (D.C. Cir.
2006); St. Louis Fuel and Supply Co., Inc. v. F.E.R.C., 890 F.2d
446 (D.C. Cir. 1989)). These cases are inapposite. The
existence of a cause of action was not questioned in any of the
cases plaintiffs cite; the parties had litigated the merits of
the underlying cause of action, and the only question was
whether fees should be awarded “under” the underlying statutes.
Id. Even if these cases could be interpreted to argue that the
ubiquitous phrase “under this section” connotes a substantive
cause of action in some circumstances, they in no way support
plaintiffs’ claim that the language unambiguously requires such a
24
conclusion.
For the foregoing reasons, the Court finds that
§ 1605A(a)(2)(B) does not unambiguously create a cause of action
for plaintiffs to sue Iran, nor does it contain clear
Congressional intent to abrogate the Algiers Accords.
C. Sections 1605A(c) and 1083(c)(3) Together do not
Unambiguously Create a Cause of Action for Plaintiffs.
The second question at issue is whether § 1605A(c), which
undoubtedly creates a cause of action for certain victims of
terrorism, includes plaintiffs in its purview. After careful
consideration, the Court finds that the dispositive legal issue
presented is precisely the same as in Roeder I. Once again,
“[t]his Court is faced with an arguably ambiguous statutory
scheme, one interpretation of which provides a cause of action
[for plaintiffs] against Iran and conflicts with the Algiers
Accords. This Court may therefore allow plaintiffs to proceed .
. . only if Congress has adequately expressed the requisite
clear intent to abrogate the Algiers Accords.” 195 F. Supp. 2d
at 171. And once again, this Court finds that the text of the
statutory provisions do not “contain the type of express
statutory mandate sufficient to abrogate an international
executive agreement,” nor does the legislative history contain
“clear statements of Congressional intent to specifically
abrogate the Algiers Accords.” Id. at 177. Accordingly, this
25
Court is unable to find that the executive or the legislative
branch has acted clearly and decisively to enable the Court to
grant plaintiffs the relief they seek.
Section 1605A(c) creates a new cause of action in certain
instances as follows:
(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) [of section 1605A] . . . shall
be liable to . . . a national of the United States . .
. for personal injury or death caused by acts
described in subsection (a)(1) [of section 1605A] of
that foreign state . . . for which the courts of the
United States may maintain jurisdiction under this
section for money damages.
Subsection (a)(2)(A)(i) contains two subsections; only one,
(a)(2)(A)(i)(II) applies to this litigation. Subsection
(a)(2)(A)(i)(II) defines a foreign state as a state sponsor of
terrorism if:
(II) [I]n the case of an action that is refiled under
this section [1605A] by reason of section
1083(c)(2)(A) of the National Defense Appropriations
Act for Fiscal Year 2008 or is filed under this
section by reason of section 1083(c)(3), the foreign
state was designated as a state sponsor of terrorism
when the original action or the related action under
section 1605(a)(7) (as in effect before the enactment
of this section) . . . was filed . . .
(emphasis added). The parties agree that Roeder II was not
filed “by reason of 1083(c)(2)(A)”; therefore only § 1083(c)(3)
applies in this case. Section 1083(c)(3) reads:
26
(c) APPLICATION TO PENDING CASES.
[. . .]
(3) RELATED ACTIONS.--If 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 [this
section], if the action is commenced not later
than the latter of 60 days after—
(A) the date of the entry of judgment in the
original action; or
(B) the date of the enactment of this Act [Jan.
28, 2008].
Accordingly, plaintiffs possess a private right of action under
§ 1605A(c) if and only if Roeder I qualifies as a “related
action” under § 1083(c)(3).
Plaintiffs argue that Roeder I unambiguously qualifies as a
related action under § 1083(c)(3). The government counters that
it is at least equally plausible to interpret the statute’s
“related action” provision to require that Roeder I have been
pending when the NDAA was enacted. Because Roeder I was not
pending, the government argues, plaintiffs cannot meet their
burden to show § 1083(c)(3) unambiguously provides them with a
cause of action against Iran. Gov’t Mem. 14. The Court agrees
with the government that the statute is ambiguous as to what
constitutes a “related action” under § 1083(c)(3), and for the
27
reasons that follow, holds that Congress did not create an
unambiguous cause of action for these plaintiffs.
i. The Government’s Claims
Beginning with the proposition that “the statute is
anything but a model of clarity,” the government argues that the
structure and text of § 1083(c) suggest that Roeder I cannot be
considered a “related action” under § 1083(c)(3). Gov’t Mem.
14. The government first considers the heading of § 1083(c):
“Application to Pending Cases.” Section 1083(c)(3) is a subset
of the “Pending Cases” section; thus, to be considered a
“related case” under § 1083(c)(3), the original action (to which
the new case is being related) must have been “pending” as of
“the date of the enactment of this Act [the NDAA] [Jan. 28,
2008].” 28 U.S.C. § 1083(c)(3)(B).4 Roeder I was dismissed in
2003, therefore, it was not pending in 2008 and cannot be
considered a “related action” to Roeder II.
The government also relies on the statute’s use of the past
perfect tense to describe original actions to which new cases
may be considered related under § 1083(c)(3). The statute
provides that new cases may be considered related to older
4
Plaintiffs do not argue that Roeder II may be brought under
§ 1083(c)(3)(A); that would require that Roeder II have been
commenced within 60 days of the date of judgment in the original
action – Roeder I. Roeder II was not filed until approximately
five years after the D.C. Circuit’s decision dismissing Roeder
I. Section 1083(c)(3)(A) is therefore inapposite.
28
actions, “[i]f [the original] action arising out of an act or
incident has been timely commenced.” § 1083(c)(3) (emphasis
added). The government argues that the use of “has been”
supports the interpretation that “a new action cannot be deemed
‘related’ unless the original action (Roeder I) was pending”
when § 1083 was enacted. Gov’t Mem. at 17. The government
claims the D.C. Circuit endorsed this reading of the statute in
Simon v. Republic of Iraq. In Simon, the D.C. Circuit
considered the meaning of § 1083(c)(3) but did not directly
address the question presented here. The Simon court
interpreted the NDAA to permit “a pending original action [to]
be[] refiled . . . by reason of section 1083(c)(2)(A)” while
separately allowing “a new action [to] be[] filed . . . by
reason of section 1083(c)(3) if a pending related action had
been timely commenced.” 529 F.3d at 1193 (citations omitted).
The Court went on to state:
[This] implies the Congress understood that the courts
would retain jurisdiction over the original “related
action” described in § 1083(c)(3). That explains why
the 60-day period for invoking § 1083(c)(2) began with
the enactment of the NDAA, whereas the 60-day period
in § 1083(c)(3) may run from the date of the “entry of
judgment” in the “related action,” which could be well
after the enactment of the NDAA.
Id. According to the government, this language suggests that
the Simon court read § 1083(c)(3) to signify that a new action
29
could only be filed if a related action had been timely
commenced and was still pending.
Given these doubts regarding the proper interpretation of
the statute, the government argues that it would be improper to
interpret the statute as abrogating a binding international
executive agreement, particularly in light of the absence of any
legislative history relating to Roeder I or the Algiers Accords.
Gov’t Reply at 15-17. The government also notes that Congress
is capable of drafting straightforward legislation explicitly
abrogating the Algiers Accords, and cites as examples (1) the
2001 legislation, § 626(c), which clearly and unequivocally
conferred jurisdiction over this action; and (2) bills such as
those which have been introduced but not passed over the years
and which, by their terms, abrogate the Algiers Accords. See
CONGRESSIONAL RESEARCH SERV., SUITS AGAINST TERRORIST STATES BY
VICTIMS OF TERRORISM (2008) at CRS 31-32. The fact that
Congress has not acted clearly or decisively here means
plaintiffs’ claim must be dismissed. Gov’t Mem. 17-18.
ii. Plaintiffs’ Claims
Plaintiffs advance a number of arguments why § 1605A(c) and
§ 1083(c)(3) should be construed to provide plaintiffs with a
cause of action against Iran. As set forth below, although the
Court finds plaintiffs’ interpretations plausible, the
government’s interpretations are as well. And as set forth
30
above, the Court may not rely on plausibility to abrogate a
binding international agreement; unless the statute
unambiguously conflicts with the Algiers Accords, the Court must
interpret the statute to avoid the conflict. Accordingly, the
Court cannot find that the 2008 legislation permits plaintiffs
to sue Iran.
Plaintiffs first argue that a comparison of § 1083(c)(2)
and § 1083(c)(3) compel the conclusion that Roeder I is a
“related” action under § 1083(c)(3).5 Plaintiffs note that the
5
The parties agree that § 1083(c)(2) does not apply to this
case. However, because the plaintiffs rely on it for the
purposes of comparison to § 1083(c)(3), it is set forth here in
relevant part:
(2) PRIOR ACTIONS.
(A) In general. - With respect to any action that -
(i) was brought under section 1605(a)(7) of
title 28, United States Code . . . before
the date of the enactment of this Act [Jan.
28, 2008],
(ii) relied upon [] such provision as creating a
cause of action,
(iii) has been adversely affected on the grounds
that . . . [§ 1605(a)(7)] fail[s] to create
a cause of action against the state, and
(iv) as of such date of enactment [Jan. 28,
2008], is before the courts in any form,
including on appeal or motion under rule
60(b) of the Federal Rules of Civil
Procedure,
31
text of § 1083(c)(2) explicitly governs actions which were
“pending before the Courts in any form, including on appeal or
motion under Rule 60(b).” Section 1083(c)(3), however, does not
include the same, explicit language that a “related action” be
“pending before the courts” on the date of the enactment of the
NDAA. Plaintiffs claim that “the presence of a pending-action
limitation in the text of § 1083(c)(2), and its absence in §
1083 (c)(3), makes clear that § 1083(c)(3) is not limited to
actions relating to pending actions.” Pls.’ Opp’n 20 (citing
Russello v. United States, 464 U.S. 16, 23 (1983) (“where
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”)).
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.
(B) Defenses waived. - The defenses of res judicata,
collateral estoppel, and limitation period are
waived--
(i) in any action with respect to which a
motion is made under subparagraph (A) . . .
32
After careful consideration, the Court concludes that the
general presumption articulated in Russello should not govern in
this case. As the Supreme Court has made clear, “[t]he Russello
presumption – that the presence of a phrase in one provision and
its absence in another reveals Congress’ design – grows weaker
with each difference in the formulation of the provisions under
inspection.” City of Columbus v. Ours Garage and Wrecker
Service, Inc., 536 U.S. 424, 435-436 (2002)); see also Clay v.
U.S., 537 U.S. 522, 532 (2003) (same); Field v. Mans, 516 U.S.
59, 67 (1995) (declining to “elevate[] [the Russello
presumption] to the level of an interpretive trump card”).
Reading § 1083(c)(2) and § 1083(c)(3) as integrated parts
of a whole, it is clear that the two subsections serve distinct
purposes. Section (c)(2) does not authorize the filing of new
cases. Rather, it permits plaintiffs in older cases to reframe
those same actions under § 1605A so long as they are still
before the courts in some form, and expressly waives the
defenses of statute of limitations, res judicata, and collateral
estoppel. Section 1083(c)(3), on the other hand, permits
“related actions” to be filed, even if they are wholly new, as
long as they relate to timely filed cases because they “arise
out of the same act or event” as the first-filed case. Stated
another way, § 1083(c)(2) governs circumstances in which
already-filed cases may change course, mid-stream, to proceed
33
under § 1605A, while § 1083(c)(3) governs circumstances in which
entirely new actions may be filed as a result of the new
legislation, even if such actions would otherwise be untimely.6
In keeping with the distinctly different purposes of the two
sections, § 1083(c)(3) borrows no probative language from §
1083(c)(2). To the contrary, the language, text and structure
of the two sections have little to nothing in common. In short,
the purpose and the language of § 1083(c)(2) are clearly
distinguished from the purpose and the language of § 1083(c)(3).
Therefore, the Court cannot conclude that the presence of the
phrase “pending before the Courts in any form” in § (c)(2) but
not § (c)(3) means that § (c)(3) unambiguously permits
plaintiffs to file a new action five years after the action to
which it was related ceased to exist before the courts.
Plaintiffs next argue that the government’s reading of
§ 1083(c) would render § (c)(3)(B) superfluous of § (c)(3)(A).
6
In this regard, the Court notes that the underlying
circumstances of the two Roeder cases may have more in common
with § 1083(c)(2) than with § 1083(c)(3). The Roeder II
complaint is substantially identical to the Roeder I complaint;
the only substantive difference is the statutory section under
which plaintiffs allege a cause of action. Compare Roeder I,
Doc. No. 3, First Am. Compl. (relying on former § 1605(a)(7) for
cause of action), with Roeder II, Doc. No. 1, Complaint (relying
on § 1605A for cause of action). Accordingly, it could be
argued that the Roeder II plaintiffs are effectively refiling
the same action, and are citing § 1083(c)(3) in an attempt to
avoid the otherwise-fatal restrictions of § 1083(c)(2).
34
Section 1083(c)(3) provides that a related action is timely
filed:
if the action is commenced not later than the latter
of 60 days after
(A) the date of entry of judgment in the original
action; or
(B) the date of enactment of this Act.
Plaintiffs claim that if the Court accepts the government’s
argument that all original cases had to be “pending” when the
NDAA was enacted, “then there would be no need to include clause
(B). Rather, the timeliness of filing test would always run
from entry of final judgment in the pending action, which would
necessarily be more than sixty days later than the date of the
NDAA’s enactment.” Pls.’ Opp’n at 23. Accordingly, plaintiffs
argue that the government’s reading of the statute cannot be
reasonable because it would require the Court to construe one of
its clauses as superfluous or void. Id. (citing TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001)).
Plaintiffs take too cramped a view of the term “entry of
judgment.” § 1083(c)(3)(A). The Federal Rules of Civil
Procedure provide multiple avenues by which a court may enter a
judgment. See, e.g., Fed. R. Civ. P. 50, 52, 54(a), 55(b), 56,
57. The Federal Rules of Appellate Procedure and Supreme Court
Rules also provide for entry of judgment under additional
35
circumstances. See, e.g., Fed. R. App. P. 36.; Sup. Ct. R. 41 -
44. The Court can easily envision several scenarios where entry
of judgment in the original, related case could have been
entered far in advance of the enactment of the NDAA – for
instance, the district court could have entered judgment and the
case could still be pending on appeal, pursuant to a motion to
alter or amend under Fed. R. Civ. P. 59(e), or on a motion for
relief from judgment under Fed. R. Civ. P. 60(b). In any of
these situations, the latter date for purposes of timely filing
the new, related action under § 1083(c)(3) would be “sixty days
after the enactment of [the NDAA]”, § 1083(c)(3)(B), thus giving
meaning and effect to both subsections.
Finally, plaintiffs argue that the use of the present
perfect tense in § 1083(c)(3) – “[i]f an action arising out of
an act or incident has been timely commenced” - does not
indicate that a new action cannot be deemed “related” unless the
original action (Roeder I) was pending at the time § 1083 was
enacted. Pls.’ Opp’n 28. Plaintiffs cite Barrett v. United
States, 423 U.S. 212 (1976) for the proposition that “has been”
denotes an action that has been completed. In Barrett, the
Court found that the term “has been shipped” encompassed items
that had been shipped and completed their journey in interstate
commerce as well as those items that were still in the process
of being shipped. Thus, plaintiffs argue, the phrase “has been
36
timely commenced” must include not only actions that were still
pending when the NDAA was enacted, but also actions such as
Roeder I, which were completed at that time. Pls.’ Opp’n at 28-
29. The United States counters that Barrett does not change the
analysis. Gov’t Reply at 12, n.9. The government argues that
even if the present perfect tense connotes an act that has been
completed, the phrase in § 1083(c)(3) “has been commenced” would
simply mean that commencement, or filing of the action, has been
completed. Id. It does not compel the conclusion that the
entire case can be completed and a related action may still be
filed under § 1083(c)(3). Id.
The Court finds that the phrase “has been commenced” does
not resolve the textual ambiguity in the statute. The phrase
may be reasonably read to limit § 1083(c)(3)’s reach to cases
related to those which were timely filed and are still pending,
as the government argues, or to encompass cases related to any
and all cases that were timely filed in the first instance,
regardless of whether they were still pending when the NDAA
became law, as plaintiffs argue. However, the Court need not
resolve these questions here: plaintiffs cannot prevail unless
they can show that theirs is the only reasonable reading of the
statute. For the reasons set forth above, they cannot.
37
D. The Record is Devoid of Any Clear Evidence of
Congressional Intent to Abrogate the Algiers Accords.
Because the NDAA is ambiguous, “this Court must not
interpret [it] to conflict with the Algiers Accords absent a
clear intent to abrogate that agreement by Congress.” Roeder I,
195 F. Supp. 2d at 175. As set forth above,
[L]egislative silence is not sufficient to [find clear
intent to] abrogate a treaty or a bilateral executive
international agreement. When a later [ambiguous] statute
conflicts with an earlier agreement, and Congress has
neither mentioned the agreement in the text of the statute
nor in the legislative history of the statute, the Supreme
Court has conclusively held that it can not find the
requisite Congressional intent to abrogate.
Id. (internal quotations and citations omitted.) It is
undisputed that the Algiers Accords is neither mentioned in the
statute, nor discussed or even alluded to in the legislative
history. Nevertheless, plaintiffs contend that even if the
statute does not unambiguously create a cause of action for them
to sue Iran, the Court should find that the legislative history
provides clear congressional intent to abrogate the Algiers
Accords. See Pls.’ Opp’n 17-18 (“Section 1083 was not
overlooked by Congress or the President.”) In support of this
statement, they note that the NDAA’s language regarding Roeder I
survived a presidential veto and subsequent negotiations over
§ 1083. They claim that “the intense attention the political
branches directed to this very section,” demonstrates that the
38
other two branches of government clearly intended § 1083 must
abrogate the Algiers Accords. Pls.’ Opp’n 18.
This argument is easily resolved. A review of the
legislative history reveals that none of the attention focused
on § 1083 had anything to do with the provisions at issue in
this litigation. The D.C. Circuit accurately summarized the
history of the NDAA’s passage as follows: “President Bush
sought to ‘pocket veto’ the bill because he believed § 1083
would threaten the reconstruction of Iraq. . . . Congress
subsequently passed a revised version of the NDAA, which
included a new provision (§ 1083(d)) that authorized the
President, upon making certain findings, to ‘waive any provision
of [§ 1083 of the NDAA] with respect to Iraq. The President
signed that bill into law.’” Simon, 529 F.3d at 1190 (citations
omitted). The legislative history adds nothing to support
plaintiffs’ argument. To the contrary, as the government
correctly notes, “the fact that the political branches gave
Section 1083 this allegedly ‘intense attention’, without once
even mentioning the Algiers Accords or the 1979 Iranian hostage
taking, is compelling evidence that Congress did not intend to
repeal the Accords or to offer the Roeder I plaintiffs a cause
of action, and that the President did not interpret the NDAA to
include an abrogation of the Accords.” Gov’t Reply at 15
39
(quoting Pls.’ Opp’n at 18) (emphasis in original). The Court
concurs.
As this Court found in Roeder I, “[a]n explicit expression
of intent to abrogate a binding international agreement
requires, at a minimum, an acknowledgment of the existence of
that agreement[.]” Roeder I, 195 F. Supp. 2d at 182. In Roeder
I, this Court was faced with legislative history which directly
referenced that case and alluded to the Algiers Accords.
Nevertheless, the D.C. Circuit held that because the relevant
legislative history was contained in a “joint explanatory
statement,” a form of committee report which is never subject to
a Congressional vote, it was insufficient to abrogate the
Algiers Accords. See Roeder I, 333 F.3d at 236-238. In Roeder
II, plaintiffs’ arguments for clear Congressional intent are
even weaker than Roeder I; the legislative history of the NDAA
is utterly silent with respect to either the Algiers Accords or
this case. Accordingly, the Court finds no clear Congressional
intent to abrogate the executive agreement.
E. Chief Judge Royce C. Lamberth’s Opinion Does Not Alter
This Court’s Analysis.
Finally, the Court turns to plaintiffs’ argument that Chief
Judge Lamberth’s opinion in In re Islamic Republic of Iran
Terrorism Litigation, 659 F. Supp. 2d 31 (D.D.C. 2009), brought
to the Court’s attention by plaintiffs as supplemental
40
authority, should guide this Court’s analysis and conclusions.
The Court gave the parties the opportunity to fully brief the
import of the opinion and, after careful consideration of the
opinion and the parties’ arguments, concludes that the
supplemental authority does not alter this Court’s analysis.
Plaintiffs principally rely on In re Iran Terrorism
Litigation for its conclusion that § 1083(c)(3) allows terrorism
victims to file “related cases” within 60 days after the NDAA’s
enactment, even if the original case to which the new case
relates was no longer pending. Specifically, plaintiffs point
to that court’s determination that “the heading of § 1083(c) –
‘Application to Pending Cases’ - is something of a misnomer
because, in reality, § 1083(c) may encompass cases that are not
pending at all - meaning prior actions that have since reached
final judgment and are no longer before the courts in any form.”
Id. at 63. Plaintiffs argue that Chief Judge Lamberth’s
interpretation of § 1083(c)(3), which comports with plaintiffs’
interpretation, “makes clear that the current opposition is
without any statutory basis.” Pls.’ Supp. Auth. Mem. at 10.
The Court is unpersuaded by the plaintiffs’ selective
reading of In re Iran Terrorism Litigation. While the cases
addressed in that opinion all name the Islamic Republic of Iran
as a state sponsor of terrorism, none of the cases arises out of
the 1979 hostage taking and consequently none of them is
41
governed by the Algiers Accords. Notwithstanding any
conclusions Chief Judge Lamberth may have reached regarding the
meaning of § 1083(c)(3), he - correctly - went to great pains to
distinguish the cases before him from the case before this
Court. As set forth above, Chief Judge Lamberth found that new
“related actions” could be filed against Iran arising out of the
same acts or incidents as had been originally litigated before
him, even if the original actions were no longer pending when
the NDAA was enacted. However, he explained that the standard
the Roeder plaintiffs must meet in order to sue Iran is
different.
Congress [must have] clearly expressed its intent to
abrogate the Algiers Accords, as is required before
Courts will hold that an international agreement is
abrogated by a subsequent act of Congress. . . . Judge
Sullivan [] went to some length in his [Roeder I]
opinion to explain that, while our Court cannot ignore
or refuse to give effect to the Algiers Accords, both
Congress and the President have the authority to
abrogate them, if they so desire. The opinion could
not have been any clearer on that point. To date,
however, neither branch has taken such action; the
political consequences are likely too great, but that
is precisely why it is a decision best left to the
political branches, and not the Courts.
659 F. Supp. 2d at 88-89 (internal quotations and citations
omitted) (emphasis added). In short, the In re Iran Terrorism
Litigation court recognized that while the NDAA granted
significant new rights and privileges to terrorism victims in
42
general, the 1979 hostage victims do not fall under the category
of terrorism victims in general. The opinion also recognized
that absent clear abrogation of the Algiers Accords, which the
NDAA did not accomplish, the plaintiffs are in the same position
now as they were prior to the enactment of the NDAA. Id. at 89-
90. Plaintiffs’ supplemental authority does not change this
Court’s analysis; it reinforces it.
As discussed in Section III.C. supra, this Court does not
necessarily disagree with Chief Judge Lamberth that § 1083(c)(3)
could support the reading urged by plaintiffs. However, as set
forth throughout, the language of the statute does not
unambiguously require such a conclusion with respect to the 1979
hostage victims, and thus does not abrogate the Algiers Accords.
IV. CONCLUSION
In this case, as in Roeder I, much time and effort have
been expended parsing esoteric phrases of statutory text and
legislative history in an effort to discern the intent of
Congress. As in Roeder I, this Court is acutely sensitive to
the indescribable horror of plaintiffs’ suffering. See Roeder
I, 195 F. Supp. 2d at 145 (“Were this Court empowered to judge
by its sense of justice, the heart-breaking accounts of the
emotional and physical toll of those 444 days on plaintiffs
would be more than sufficient justification for granting all the
relief that they request.”) The principles that guided the
43
Court’s decision in Roeder I, however, are fundamental to our
system of government and the fair administration of justice.
They are equally binding on this Court now, and they bear
repeating.
Lest this Court’s decision be viewed as denying
plaintiffs a remedy for the horrible wrongs they have
suffered simply because Congress failed to use the
proper choice of words, it is important to reiterate
the values that are served by an abrogation doctrine
that requires Congress to make its intent clear. The
spheres of power of our co-equal branches of
government can at times overlap. When such overlap
occurs, and the wills of two branches are in conflict,
the Constitution sets forth the rules for deciding
which branch gets to trump the will of the other. In
this case, by virtue of his power to direct the
foreign affairs of this country, the President clearly
has the authority to enter into international
agreements. Congress, however, clearly has the
corresponding right to abrogate the agreement reached
by the President if it so wishes. Because of the
respect owed to each co-equal branch of government,
the courts must require that Congress make its intent
clear, either by legislating unambiguously or
accompanying ambiguous statutes with clear expressions
of intent. Any other rule would allow the courts, by
inference and interpretation, to impermissibly assume
the legislative role.
Roeder I, 195 F. Supp. 2d at 183 (internal citation omitted).
As discussed throughout this opinion, Congress has failed to
enact plain, straightforward language creating a cause of action
for plaintiffs; nor has Congress clearly expressed its intent to
abrogate the Algiers Accords. Regrettably, this Court must
conclude as a matter of law that the plaintiffs cannot pursue a
44
lawsuit for damages for the human suffering and atrocities
inflicted upon them by the Islamic Republic of Iran.
For the foregoing reasons, it is hereby ORDERED that the
United States’ motion to dismiss is GRANTED as plaintiffs have
failed to state a claim upon which this Court can grant relief.
Plaintiffs’ motion for default judgment as to liability is
DENIED as moot. This case is therefore DISMISSED. An
appropriate Order accompanies this memorandum opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
September 30, 2010
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Roeder v. Islamic Republic of Iran
Combined Opinion