UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
DARYAL V. CLAY, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 06-707 (RWR)
)
SOCIALIST PEOPLE’S LIBYAN )
ARAB JAMAHIRIYA, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiffs bring this action against the Socialist People’s
Libyan Arab Jamahiriya (“Libya”) and the Jamahiriya Security
Organization (collectively, the “Libyan defendants”) under 28
U.S.C. § 1605A(c) for claims arising from the 1986 bombing at the
LaBelle Discotheque in Berlin, Germany. The Libyan defendants
have moved to dismiss under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(2), alleging that the requirements of the
Libyan Claims Resolution Act (“LCRA”), Pub. L. No. 110-301, 122
Stat. 2999 (2008), have now been fulfilled so that the LCRA
operates to divest the court of subject matter and personal
jurisdiction. Because the LCRA has divested the court of
jurisdiction over claims brought under § 1605A(c), the
defendants’ motion to dismiss the amended complaint will be
granted.
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BACKGROUND
The plaintiffs are United States citizens who were either
members of the Armed Forces, or dependant wives of members of the
Armed Forces, who were injured by the April 5, 1986 bombing at
the LaBelle Discotheque. (Am. Compl. ¶¶ 3-4.) The plaintiffs
bring their amended complaint against the Libyan defendants under
28 U.S.C. § 1605A(c), a provision of the Foreign Sovereign
Immunities Act (“FISA”), alleging that the 1986 bombing was a
terrorist attack for which the Libyan defendants bear
responsibility. The plaintiffs allege claims of personal injury,
assault, battery, intentional infliction of mental distress, and
solatium, and seek money damages, including punitive damages.
The Libyan defendants have moved to dismiss the plaintiffs’
amended complaint under Rules 12(b)(1) and 12(b)(2), arguing that
the LCRA has divested the court of subject matter jurisdiction
over the plaintiffs’ claims and personal jurisdiction over the
Libyan defendants. The plaintiffs oppose dismissal at this time,
alleging that the LCRA may constitute an unconstitutional taking
if the plaintiffs are not adequately compensated under the State
Department’s procedures to settle claims under the settlement
agreement between the United States and Libya, and arguing the
court may not dismiss their claims until more is known about the
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State Department’s procedures.1 The United States has filed a
statement of interest stating its position that the LCRA
“expressly eliminated jurisdiction under [FISA] over plaintiffs’
claims against the Libyan defendants, and has further expressly
precluded a private cause of action against the Libyan
defendants.” (U.S. Stmt. of Interest at 2.)
DISCUSSION
On a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), the plaintiff bears the burden
of establishing a court’s subject matter jurisdiction. See Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998) (“The
party invoking federal jurisdiction bears the burden of
establishing its existence.”) In reviewing the motion, a court
accepts as true all of the factual allegations contained in the
complaint, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992), but may also consider “undisputed facts evidenced in the
record.” Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 198 (D.C. Cir. 2003).
The “subject-matter jurisdiction of the lower federal courts
is determined by Congress ‘in the exact degrees and character
which to Congress may seem proper for the public good.’”
1
The plaintiffs also have filed a motion to stay the
proceedings and consideration of the defendant’s motion until
more is known about the State Department’s procedures to carry
out the settlement agreement between the United States and Libya.
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Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,
433 (1989). In enacting FISA, Congress made a foreign state
“immune from the jurisdiction of the courts of the United States
and of the States except as otherwise provided in [28 U.S.C.]
sections 1605 to 1607[.]” 28 U.S.C. § 1604. Plaintiffs bring
their claims under 28 U.S.C. § 1605A(c). Under this section,
members of the armed forces or their legal representatives have a
private right of action against a “foreign state that is or was a
state sponsor of terrorism” for
personal injury or death that was caused by an act of
torture, extrajudicial killing, . . . or the provision
of material support or resources for such an act if
such act or provision of material support or resources
is engaged in by an official, employee, or agent of
[the] foreign state while acting within the scope of
his or her office, employment or agency.
28 U.S.C. §§ 1605A(a)(1), (c).
In 2008, the President signed into law the LCRA, which
expressed Congress’ support for
the President in his efforts to provide fair
compensation to all nationals of the United States who
have terrorism-related claims against Libya through a
comprehensive settlement of claims by such nationals
against Libya pursuant to an international agreement
between the United States and Libya as a part of the
process of restoring normal relations between Libya and
the United States.
LCRA § 3, 122 Stat. at 2999. Section 5 of the LCRA provides for
restoring Libya’s immunity from claims brought under § 1605A(c)
of FISA once the United States and Libya reach an agreement. To
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restore Libya’s immunity, the Secretary of State submits a
certification to the appropriate congressional committees
stating that the United States Government has received
funds pursuant to the claims agreement that are
sufficient to ensure . . . fair compensation of claims
of nationals of the United States for wrongful death or
physical injury in cases pending on the date of
enactment of [the] Act against Libya arising under [28
U.S.C. § 1605A.]
LCRA § 5(a)(2), 122 Stat. at 3001. Upon the Secretary’s
submission of the certification,
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 . . . of title 28,
United States Code; [and] section 1605A(c) of title 28,
United States Code . . . 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 § 5(a)(1), 122 Stat. at 3000-01.2
On October 31, 2008, the Secretary of State transmitted to
Congress her certification satisfying the requirements of
§ 5(a)(2).3 (See Defs.’ Mot. to Dismiss, Ex. 2.) As a result,
under § 5(a)(1) of the LCRA, the Libyan defendants’ immunity from
2
Subsection 5(a) “appl[ies] only with respect to any conduct
or event occuring before June 30, 2006, regardless of whether, or
the extent to which, application of [the] subsection affects any
action filed before, on, or after that date.” LCRA § 5(b), 122
Stat. at 3001.
3
The plaintiffs do not dispute the government’s
representation that the October 31, 2008 certification
transmitted to Congress satisfies the Secretary’s obligations
under § 5(a)(2) and triggers the application of § 5(a)(1).
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suit has been restored and the court has been divested of subject
matter jurisdiction over the plaintiffs’ claims.4
Although the plaintiffs do not dispute that the LCRA divests
the court of jurisdiction, they nonetheless suggest that
dismissal is inappropriate at this time because in the event that
they do not receive adequate compensation under the State
Department’s procedures, the LCRA would be an unconstitutional
government taking of their property under the Fifth Amendment.
The plaintiffs’ contention that they may have a Fifth Amendment
takings claim for just compensation against the United States,
which is not a defendant in the present action, does nothing to
defeat the fact that the court is now divested of jurisdiction
over the plaintiffs’ claims against the Libyan defendants. See
Antolok v. United States, 873 F.2d 369, 378 (D.C. Cir. 1989)
(concluding that once Congress by statute divested the district
court of jurisdiction over the plaintiffs’ claims against the
United States, the plaintiffs’ allegation that the statute was an
unconstitutional taking did not prevent dismissal of the
plaintiffs’ claims, but could be pursued instead in the United
4
In addition, because § 5(a)(1) of the LCRA restores Libya’s
immunity, the court also lacks personal jurisdiction over the
defendants. Under 28 U.S.C. § 1330(b), personal jurisdiction
over a foreign state exists for every claim brought under the
FISA exceptions to immunity in 28 U.S.C. §§ 1605 to 1607. “Thus,
if none of the exceptions . . . applies, the District Court lacks
both statutory subject matter jurisdiction and personal
jurisdiction.” Verlinden v. Cent. Bank of Nigeria, 461 U.S. 480,
485 n.5 (1983).
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States Court of Federal Claims under the Tucker Act, 28 U.S.C.
§ 1491(a)(1)).5 Accordingly, because the LCRA divests the court
of jurisdiction over the plaintiffs’ claims, the defendants’
motion to dismiss will be granted.
CONCLUSION
The undisputed facts demonstrate that the Secretary of State
submitted a certification to Congress satisfying § 5(a)(2) of the
LCRA and restored Libya’s immunity from the court’s jurisdiction.
Thus, the defendants’ motion to dismiss the plaintiffs’ amended
complaint will be granted and the plaintiffs’ motion to stay the
proceedings will be denied as moot. A final, appealable Order
accompanies this Memorandum Opinion.
SIGNED this 5th day of May, 2009.
/s/
RICHARD W. ROBERTS
United States District Judge
5
Similarly, dismissal of the plaintiffs’ claims in this
action does not prevent the plaintiffs from bringing a takings
claim against the United States in the appropriate court. See
Dames & Moore v. Regan, 453 U.S. 654, 689 (1981) (noting that the
petitioner could bring a Fifth Amendment claim against the United
States under the Tucker Act if he believed the President’s
suspension of his claim against Iran constituted an unlawful
taking of his property); Antolok, 873 F.2d at 378.