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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 2002 Decided April 22, 2003
No. 01-7191
SANDRA JEAN SIMPSON,
APPELLEE
v.
SOCIALIST PEOPLE’S LIBYAN ARAB JAMAHIRIYA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 00cv01722)
Arman Dabiri argued the cause and filed the briefs for
appellant.
Eric C. Sorenson argued the cause and filed the brief for
appellee.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
SENTELLE, Circuit Judge: Sandra Jean Simpson (‘‘appellee’’
or ‘‘Simpson’’) sued the Socialist People’s Libyan Arab Jama-
hiriya (‘‘appellant’’ or ‘‘Libya’’) alleging claims for hostage
taking and torture. After entering default judgment in favor
of appellee, the District Court, on motion of appellant, re-
opened the case and permitted Libya to file motions to
dismiss for lack of subject matter jurisdiction, lack of person-
al jurisdiction, and failure to state a claim for relief. The
court denied the motions to dismiss. Libya brought the
instant interlocutory appeal under the collateral order doc-
trine. For the reasons more fully set out below, we reverse
as to the torture claim and remand for dismissal; as to the
hostage-taking claim, we vacate and remand to permit
Simpson to attempt to cure the deficiency of her complaint by
amendment.
I
Simpson’s complaint alleges the following facts: On Febru-
ary 7, 1987, Simpson, a United States citizen, and her hus-
band, then a permanent resident of the United States, were
passengers on the Carin II, a cruise ship, cruising through
the Mediterranean, when a severe storm interrupted the
cruise. The Carin II was seriously damaged in the storm.
On February 10, 1987, Libyan harbor authorities in Benghazi,
Libya notified the Carin II that it could use the Port of
Benghazi as a safe harbor. Subsequently, a Libyan harbor
boat escorted the Carin II into port.
On February 14, 1987, Libyan authorities boarded the
Carin II and ‘‘forcibly removed’’ the passengers and crew.
Libya held Simpson and her husband captive and threatened
to kill them if they tried to leave. Libyan authorities separat-
ed Simpson from her husband approximately three months
into their captivity. Shortly thereafter, Libya released
Simpson but held her husband incommunicado for four more
months.
On July 21, 2000, Simpson filed a pro se complaint against
Libya, alleging battery, false imprisonment, intentional inflic-
tion of emotional distress, loss of consortium, and seeking
3
compensatory and punitive damages. Following some diffi-
culty in serving the summons and complaint, service was
effected on or about January 25, 2001. On March 27, 2001,
Simpson moved for entry of default, which the District Court
granted two days later. On April 19, 2001, Simpson mailed to
Libya an offer to arbitrate. Simpson’s offer to arbitrate was
made subject to certain conditions. Among the conditions
were that the arbitration would be conducted ‘‘by a third-
party organization with extensive experience in arbitrating
international disputes’’ and that the arbitration would ‘‘not
require [Simpson’s] absence from the United States.’’ Offer
to Arbitrate ¶ ¶ 1, 2. After receiving Simpson’s offer to
arbitrate, Libya filed an entry of appearance and a motion to
reopen the case and extend time to file an answer. The
District Court granted this motion on June 15, 2001. On July
23, 2001, Libya filed a motion to dismiss for lack of subject
matter jurisdiction, lack of personal jurisdiction, and failure to
state a claim. The District Court denied the motion.
Simpson v. Socialist People’s Libyan Arab Jamahiriya, 180
F. Supp. 2d 78 (D.D.C. 2001). Libya now appeals from the
denial of its motion.
II
The Foreign Sovereign Immunities Act (‘‘FSIA’’) entitles
foreign states to immunity from civil suits in United States
courts, with specific exceptions. The Antiterrorism and Ef-
fective Death Penalty Act amended the FSIA by adding what
is now 28 U.S.C. § 1605(a)(7), creating a new exception.
Under section 1605(a)(7), foreign states that, like Libya, have
been designated as state sponsors of terrorism are denied
immunity for damages actions for personal injury or death
resulting from certain acts, including acts of ‘‘torture’’ and
‘‘hostage taking.’’ 28 U.S.C. § 1605(a)(7). The Flatow
Amendment to the FSIA creates a right of action for torture
or hostage taking against an ‘‘official, employee, or agent of a
foreign state.’’ Pub. L. No. 104–208, Div. A, Title I, § 101(c),
110 Stat. 3009–172 (1996) (codified at 28 U.S.C. § 1605 note).1
1As we acknowledged recently in Price v. Socialist People’s
Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002), the
4
Section 1605(a)(7) contains as a jurisdictional requirement
that ‘‘the claimant TTT afford[ ] the foreign state a reasonable
opportunity to arbitrate the claim in accordance with accepted
international rules of arbitration’’ if ‘‘the act occurred in the
foreign state against which the claim has been brought.’’ 28
U.S.C. § 1605(a)(7)(B)(i). Libya contends that the case
should be dismissed for lack of jurisdiction because Simpson’s
offer to arbitrate was neither timely nor reasonable under 28
U.S.C. § 1605(a)(7).
With regard to the timeliness of the offer to arbitrate,
Libya argues that because this is a jurisdictional matter, we
should require that the offer to arbitrate be made prior to (or
at least concurrent with) the filing of the complaint. Howev-
er, section 1605(a)(7) sets no rule requiring that the offer to
arbitrate be made before the filing of the complaint. It
merely requires that the offer be made by such time as to
allow Libya a ‘‘reasonable opportunity’’ to arbitrate. 28
U.S.C. § 1605(a)(7)(B)(i). In this instance, Simpson transmit-
ted her offer to arbitrate to Libya in April of 2001. Libya
received the offer almost two months before responding to
Simpson’s complaint with the motion to dismiss presently
under review. Simpson, 180 F. Supp. 2d at 83. We cannot
say that the timing of the offer is such that Simpson has not
afforded Libya a ‘‘reasonable opportunity’’ to arbitrate. This
is especially true given that a plaintiff may amend a complaint
to remedy a jurisdictional defect even as late as the appellate
stage of proceedings. 28 U.S.C. § 1653 (‘‘Defective allega-
tions of jurisdiction may be amended TTT in the trial or
appellate courts.’’). Thus, it is difficult to see how an offer of
arbitration two months before a foreign sovereign responds to
a complaint against it in any fashion can be factually prejudi-
cial, or legally insufficient, given that the plaintiff may amend
Flatow Amendment does not list ‘‘foreign states’’ among the parties
against whom an action may be brought. Libya, recognizing this,
argues that Simpson’s complaint should be dismissed because the
Flatow Amendment does not create a federal cause of action against
foreign states. However, Libya concedes that it failed to raise this
issue in the District Court, so we do not pass on this issue here.
5
to cure jurisdictional defects even at later times, and there is
no claim that the allegation of the offer is untrue.
Libya further argues that the offer to arbitrate was not
reasonable because it requires that the arbitration take place
in the United States. Libya’s argument fails because it
misstates the conditions Simpson attached to her offer to
arbitrate. The offer simply stated that the arbitration ‘‘not
require [Simpson’s] absence from the United States.’’ Offer
to Arbitrate ¶ 2. This is not synonymous with requiring that
the arbitration be conducted in the United States. With
modern means of electronic communication, there is no im-
pediment to conducting arbitrations with one party in the
United States and the other in Libya. Furthermore, arbitra-
tions may be conducted through attorneys or agents, so that
even if all proceedings were conducted in Libya or some
neutral site, there is no reason why Simpson would be
required to be absent from the United States. The FSIA, as
amended, does not require any particular form of offer to
arbitrate, simply the extension of a ‘‘reasonable opportunity.’’
The form of Simpson’s offer to arbitrate did not prevent it
from affording Libya a reasonable opportunity to arbitrate.
As Simpson’s complaint survives the jurisdictional chal-
lenge, we next consider the sufficiency of the complaint to
state claims for relief for torture and hostage taking against
Libya. The term ‘‘torture,’’ as used in the amended FSIA,
derives its meaning from section 3 of the Torture Victim
Protection Act of 1991, 28 U.S.C. § 1350 note (‘‘TVPA’’),
which borrows from the 1984 United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th
Sess. Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) (‘‘Torture
Convention’’). As we held in Price, 294 F.3d at 91–93, that
definition of torture includes a ‘‘severity requirement’’ that is
‘‘crucial to ensuring that the conduct proscribed by the Con-
vention and the TVPA is sufficiently extreme and outrageous
to warrant the universal condemnation that the term ‘torture’
both connotes and invokes.’’ Id. at 92. ‘‘[T]orture does not
automatically result whenever individuals in official custody
are subjected even to direct physical assault.’’ Id. at 93.
6
Rather, torture is a label that is ‘‘usually reserved for ex-
treme, deliberate and unusually cruel practices, for example,
sustained systematic beating, application of electric currents
to sensitive parts of the body, and tying up or hanging in
positions that cause extreme pain.’’ Id. at 92–93 (quoting S.
Exec. Rep. No. 101–30, at 14 (1990)).
Simpson alleges here that she was ‘‘interrogated and then
held incommunicado,’’ ‘‘threatened with death TTT if [she]
moved from the quarters [where she was] held,’’ and ‘‘forcibly
separated from her husband TTT [and unable] to learn of his
welfare or his whereabouts.’’ Although these alleged acts
certainly reflect a bent toward cruelty on the part of their
perpetrators, they are not in themselves so unusually cruel or
sufficiently extreme and outrageous as to constitute torture
within the meaning of the Act. Accordingly, we reverse the
District Court’s order as to Simpson’s claim for torture.
Section 1605(e)(2) defines ‘‘hostage taking’’ as that term is
used in Article 1 of the International Convention Against the
Taking of Hostages (‘‘ICATH’’). ‘‘Hostage taking’’ occurs
under the ICATH (and so under the FSIA) when a person
‘‘seizes or detains and threatens to kill, to injure or to
continue to detain another person in order to compel a third
party TTT to do or abstain from doing any act as an explicit or
implicit condition for the release of a hostage.’’ Article I,
ICATH, U.N. GAOR, Supp. No. 39, U.N. Doc. A/34/39 (1979).
The essential element of the hostage-taking claim is that the
intended purpose of the detention be to accomplish the sort of
third-party compulsion described in the convention. Price,
294 F.3d at 94.
In her complaint, Simpson alleges that she was held captive
and incommunicado for several months, but she does not
allege that Libya’s intended purpose behind her detention
was to compel anyone to do or abstain from doing any act.
Although the District Court thought it ‘‘reasonable to infer
that Libya sought to compel some third-party action or
inaction’’ by detaining Simpson, 180 F. Supp. 2d at 89, we
think it clear that Simpson’s complaint fails to state a
hostage-taking claim because it does not articulate any in-
7
tended purpose behind her detention, and certainly not one of
the sort described in the convention and discussed by this
court in Price. Nevertheless, we, as in Price, find it possible
that Simpson might be able to allege facts supporting the
proposition that Libya intended to compel action or inaction
by a third party ‘‘as an explicit or implicit condition’’ of
Simpson’s release. So, with respect to Simpson’s hostage-
taking claim, we vacate and remand to the District Court to
allow Simpson to attempt to amend her complaint in an effort
to satisfy the definition of hostage taking as used in the FSIA
and the ICATH.
CONCLUSION
As Simpson’s offer to arbitrate afforded Libya a reasonable
opportunity to arbitrate Simpson’s claim, there is no jurisdic-
tional flaw barring Simpson’s complaint, and we affirm the
District Court with respect to this issue. Nevertheless,
Simpson fails to state a claim for torture as that term is used
in the FSIA and the TVPA, and we reverse as to that claim.
Simpson likewise fails to state a claim for hostage taking as
that term is used in the FSIA and the ICATH. Because it
appears possible that Simpson might be able to allege facts
supporting a claim that Libya intended to compel action or
inaction by a third party as a condition of Simpson’s release,
we vacate the District Court’s decision with respect to the
hostage-taking claim and remand to allow Simpson an oppor-
tunity to amend her complaint.
So ordered.