UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
CLIFFORD ACREE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 02-632 (RWR)
)
REPUBLIC OF IRAQ, et al., )
)
Defendants. )
_____________________________ )
MEMORANDUM ORDER
Plaintiffs, former prisoners of war in Iraq during the Gulf
War and their family members, move under § 1083(c) of the
National Defense Authorization Act for Fiscal Year 2008 (“NDAA”),
Pub. L. No. 110-181, 122 Stat. 338, to reinstate the final
judgment issued on July 7, 2003 against defendants Republic of
Iraq, Saddam Hussein, and the Iraqi Intelligence Service.
Plaintiffs’ complaint alleged that jurisdiction over the Iraqi
defendants was proper under 28 U.S.C. § 1607(a)(7), the terrorism
exception of the Foreign Sovereign Immunities Act (“FSIA”).
After the Iraqi defendants defaulted, a final default judgment
was entered against them. On appeal brought by the United
States, as an intervenor-defendant, the D.C. Circuit held that
the plaintiffs failed to state a cause of action against the
Iraqi defendants, vacated the judgment entered against the
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defendants, and dismissed the plaintiffs’ complaint. Acree v.
Republic of Iraq, 370 F.3d 41, 60 (D.C. Cir. 2004).
The plaintiffs allege that Executive Order 13,491, 74 Fed.
Reg. 4893 (Jan. 22, 2009)1 rescinds President Bush’s waiver of
the provisions of § 1083 with respect to Iraq and authorizes the
district court to reinstate judgment under § 1083(c). The United
States and the Iraqi defendants contend that the district court
lacks jurisdiction over the plaintiffs’ motion. They argue in
the alternative that to the extent that there is jurisdiction to
consider the plaintiffs’ motion, Executive Order 13,491 had no
effect on President Bush’s waiver of § 1083 with respect to
claims against Iraq and the plaintiffs are not entitled to
relief.2
“Section 1083 of the NDAA amended the terrorism exception to
immunity [under] the FSIA, creating a new § 1605A.” (Pls.’ Mot.
1
Executive Order 13,491, entitled “Ensuring Lawful
Interrogations,” sets “[s]tandards and [p]ractices” for
interrogation of persons in the custody of the United States in
armed conflicts and rescinds Executive Order 13,440, 72 Fed. Reg.
40,707 (July 20, 2007) and “[a]ll executive directives, orders,
and regulations inconsistent with” Executive Order 13,491. 74
Fed. Reg. at 4893.
2
Executive Order 13,491 also authorizes “the Attorney
General [to] provide guidance about which directives, orders, and
regulations are inconsistent with this order.” 72 Fed. Reg. at
4893. In its opposition to the plaintiffs’ motion, the United
States alleges that “it is the position of the United States and
the Department of Justice that President Bush’s waiver of Section
1083’s provisions is unaffected by Executive Order 13,491.”
(United States’ Opp’n at 5 n.2.)
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under § 1083(c) of the NDAA (“Pls.’ Mot.”) at 2.) Section
1083(c) provides that, for eligible plaintiffs, “on motion made
by plaintiffs’ to the United States district court where the
action was initially brought,” a judgment entered under 28 U.S.C.
§ 1605(a)(7) “shall be given effect as if the action had
originally been filed under” 28 U.S.C. § 1605A(c). The NDAA also
expressly provided that the President could “waive any provision
of [§ 1083] with respect to Iraq” under certain conditions.
§ 1083(d)(1), 122 Stat. at 343-44. On January 28, 2008,
President Bush exercised his authority under § 1083(d) to “waive
all provisions of section 1083 of the [NDAA] with respect to Iraq
and any agency or instrumentality thereof.” Presidential
Determination No. 2008-9, 73 Fed. Reg. 6571 (Feb. 5, 2008).
Under the longstanding mandate rule, “[t]he district court
ha[s] no ‘power or authority to deviate from the [court of
appeals’] mandate.’” Role Models America, Inc. v. Geren, 514
F.3d 1308, 1311 (D.C. Cir. 2008) (quoting Briggs v. Pa. R.R. Co.,
334 U.S. 304, 306 (1948)). Because the court of appeals has
vacated the judgment and dismissed the complaint without
remanding it back to the district court, see Acree, 370 F.3d at
60, this court has no jurisdiction to entertain the plaintiff’s
motion to reinstate the judgment. Thus, the plaintiffs’ motion
will be denied for lack of jurisdiction. Accordingly, it is
hereby
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ORDERED that the plaintiffs’ motion [54] under § 1083 of the
NDAA be, and hereby is, DENIED.
SIGNED this 18th day of September, 2009.
/s/
RICHARD W. ROBERTS
United States District Judge