UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARK MCDONALD, et al., :
:
Plaintiffs, :
:
v. : Civil Action No. 06-0729 (JR)
:
THE SOCIALIST PEOPLE’S LIBYAN :
ARAB JAMAHIRIYA, et al., :
:
Defendants. :
MEMORANDUM
When plaintiffs filed their amended complaint, this
suit involved claims by United States and foreign nationals
against Libya, its security forces, and its leaders for their
material support of the campaign of bombings carried out by the
Irish Republican Army between 1972 and 1996. See, e.g., Am.
Compl. [#34] ¶¶ 203-294. Their pleading sought to sidestep what
would otherwise be a dispositive foreign sovereign immunity
defense by invoking the exception for state sponsors of
terrorism, 28 U.S.C. § 1605A, and the exception for commercial
activity with a direct effect in the United States, id.
§ 1605(a)(2). Subsequently, the political branches undertook to
normalize diplomatic relations with Libya and, through
legislative and executive action, settled all pending suits
against Libya, its agencies, instrumentalities, officials,
employees, and agents arising from terrorist acts occurring prior
to June 30, 2006. See Libyan Claims Resolution Act (“LCRA”),
Pub. L. No. 110-301, 122 Stat. 2999 (2008); Claims Settlement
Agreement [#62, Attach. 1]. Seeking to participate in the
settlement fund established by the Claims Settlement Agreement,
the U.S.-national plaintiffs in this suit sought dismissal of
their claims with prejudice, [#46], which was granted, [#47].
They appear to have encountered difficulty accessing the fund,
however, because of the remaining claims by foreign nationals
that were still pending in this case. See, [#48 at 3]. They
accordingly moved for declaratory relief “defin[ing] the scope of
those with standing to participate in the humanitarian
[settlement] fund,” and “advis[ing] the parties of which claims
remain in light of the LCRA, specifically whether the foreign
claims survive.” Id. at 21.
For their part, the Libyan defendants have moved to
dismiss, [#36], a motion that is now supported by the United
States, [#62]. Among the many issues identified by the United
States in its statement of interest is the standing of the
remaining foreign-national plaintiffs to seek declaratory relief
on behalf of the now-dismissed U.S.-national plaintiffs against
the non-party United States in its capacity as administrator of
the settlement fund. Although the United States’ suggestion
(that the foreign-national plaintiffs do not have standing)
appears manifestly correct, it need not be reached. Instead, the
case will be dismissed in its entirety.
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We may begin with a matter beyond dispute: plaintiffs
can no longer rely on the exception to foreign sovereign immunity
for state sponsors of terrorism, see 28 U.S.C. § 1605A. The LCRA
provides:
Notwithstanding any other provision of law, upon
submission of a certification described in paragraph
(2), Libya, an agency or instrumentality of Libya, and
the property of Libya or an agency or instrumentality
of Libya, shall not be subject to the exceptions to
immunity from jurisdiction, liens, attachment, and
execution contained in section 1605A, 1605(a)(7), or
1610 . . . of title 28, United States Code.
LCRA, Pub. L. No. 110-303, § 5(a)(1)(A). The “certification”
referred to is a certification by the Secretary of State that she
has received funds sufficient to ensure fair compensation of
claims by U.S. nationals. Id. § 5(a)(2). The Act is limited to
“any conduct or event occurring before June 30, 2006.” Id.
§ 5(b). The Secretary has made the necessary certification, see
[#62, Attach. 2], and the events alleged in the complaint took
place no later than 1996, see Am. Compl. [#34] ¶¶ 254-294. Thus,
no plaintiff may rely on the state sponsor of terrorism exception
to foreign sovereign immunity in order to sue Libya in an
American court, and the plaintiffs themselves appear to concede
this. See [#48] at 8-9.
Plaintiffs argue instead that they may maintain this
action under the so-called commercial activity exception to
foreign sovereign immunity, see 28 U.S.C. § 1605(a)(2). They
recognize that an executive order by the President purported to
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settle and dispose of claims by U.S. and foreign nationals, [#48]
at 9, but they argue that the President had no authority to
dispose of these claims without direct authority from Congress,
and they assert their belief that Congress has not provided such
authority, regardless of the LCRA. Id. at 14.
This argument fails. Libya’s alleged conduct is not
commercial activity as it is understood by 28 U.S.C.
§ 1605(a)(2). According to Supreme Court and circuit precedent,
the “key inquiry in determining whether particular conduct
constitutes commercial activity . . . [is] whether it is ‘the
sort of action by which private parties can engage in commerce.’”
Mwani v. Bin Laden, 417 F.3d 1, 17 (D.C. Cir. 2005) (citing Saudi
Arabia v. Nelson, 507 U.S. 349, 362 (1993)). In Mwani, the D.C.
Circuit rejected the claim that Afghanistan’s provision of land
for terrorist training camps could be considered commercial. Id.
Here, the allegations are that Libya received an IRA “envoy in
Tripoli, Libya, who obtained quasi-ambassadorial status,” Am.
Compl. [#34] ¶ 212, that Libya provided both arms and financial
support to the IRA, e.g., id. ¶¶ 210-211, and that Libya trained
IRA terrorists, id. ¶ 236. There is no way to characterize such
activities as “commercial.” Libya supported the IRA with both
arms and funds –- sponsoring terrorists, not trading with them.
Moreover, even if the allegations of the amended
complaint fell within the commercial activity exception, it would
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require a very cramped reading of the LCRA to exclude this case
from those that Congress plainly intended to foreclose as part of
the effort to normalize relations with Libya. The LCRA provides
that “any other private right of action relating to acts by a
state sponsor of terrorism arising under Federal, State, or
foreign law shall not apply with respect to claims against Libya,
or any of its agencies, instrumentalities, officials, employees,
or agents in any action in a Federal or State court.” LCRA, Pub.
L. No. 110-303, § 5(a)(1)(B). Plaintiffs’ invocation of the
commercial activity exception does not change the fact that the
complaint in this case asserts “a private right of action
relating to acts by a state sponsor of terrorism.” Id.
§ 5(a)(1)(B) (emphasis added). Plaintiff’s claim, by any other
name, is about Libya’s sponsorship of IRA terrorists, see Am.
Compl. [#34] ¶ 203 (“Beginning in 1972, Defendant Libya
established contacts with the PIRA which, in the subsequent
twenty-five (25) years, grew into a material support apparatus
provided by Libya to the PIRA.”); id. ¶ 204 (“Between 1972 and
1997, Libya provided material support to the PIRA in the form of
finances, a base in Tripoli, military and explosives training,
arms, explosives, including but not limited to Semtex, explosive
components, public support, and encouragement.”). The text of
the LCRA makes clear that Congress intended to end precisely such
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cases so as to normalize relations with Libya, and the law will
be given that effect.
JAMES ROBERTSON
United States District Judge
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McDonald v. Socialist People's Libyan Arab Jamahiriya
Combined Opinion