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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 15, 2003 Decided January 16, 2004
No. 02-7085
ELIZABETH A. CICIPPIO-PULEO, ET AL.,
APPELLANTS
v.
ISLAMIC REPUBLIC OF IRAN AND
IRANIAN MINISTRY OF INFORMATION AND SECURITY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv01496)
Thomas L. Gowen argued the cause for appellants. With
him on the briefs were James J. Oliver and Steven J. McCool.
Stuart H. Newberger argued the cause for amicus curiae
Blake Kilburn in support of appellants. With him on the
brief were Michael L. Martinez, Laurel Pyke Malson and F.
Ryan Keith.
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
Elizabeth B. Wydra, Supervising Attorney, argued the
cause as amicus curiae in support of the District Court’s
judgment. With her on the brief were Steven H. Goldblatt,
Director of the Appellate Litigation Program, appointed by
the court, and William J. Brown, Varu Chilakamarri, and
Ruthanne M. Deutsch, Student Counsel.
Douglas Letter, Litigation Counsel, U.S. Department of
Justice, argued the cause for amicus curiae The United
States. With him on the brief were Peter D. Keisler, Assis-
tant Attorney General, Roscoe C. Howard, Jr., U.S. Attorney,
Gregory G. Katsas, Deputy Assistant Attorney General, H.
Thomas Byron III, Attorney, and Mark A. Clodfelter, Attor-
ney, U.S. Department of State.
Before: EDWARDS, RANDOLPH, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS
EDWARDS, Circuit Judge: This case involves a lawsuit
brought against the Islamic Republic of Iran (‘‘Iran’’) under
the terrorism exception, 28 U.S.C. § 1605(a)(7), to the For-
eign Sovereign Immunities Act (‘‘FSIA’’), 28 U.S.C. §§ 1330,
1602-11 (2000). The plaintiffs in the suit are the adult
children and siblings of Joseph J. Cicippio, a victim of terror-
ist hostage-taking. Joseph Cicippio was abducted in 1986 by
Hizbollah, an Islamic terrorist organization that receives ma-
terial support from Iran. He was held hostage until 1991,
confined in inhumane conditions and frequently beaten. In
1996, Joseph Cicippio and his wife sued Iran for the tortious
injuries they sustained as a result of Mr. Cicippio’s kidnaping,
imprisonment, and torture. Iran failed to respond to the
complaint and default was entered on November 13, 1997.
The case was tried ex parte and, on August 27, 1998, the
District Court entered judgment against Iran in favor of Mr.
and Mrs. Cicippio in the amount of $30 million. Cicippio v.
Islamic Republic of Iran, 18 F. Supp. 2d 62, 64, 70 (D.D.C.
1998). No appeal was taken.
In 2001, Joseph Cicippio’s children and siblings sued Iran
for the intentional infliction of emotional distress and loss of
solatium they suffered as a result of Mr. Cicippio’s ordeal.
3
The Iranian defendants failed to respond to the complaint and
the District Court entered default on January 2, 2002. The
Cicippios filed a motion for summary judgment on January
10, 2002. Subsequently, on January 24, 2002, plaintiffs moved
to consolidate their suit with Mr. and Mrs. Cicippio’s case,
which by then had been closed. On June 21, 2002, the
District Court denied the motions for summary judgment and
consolidation. The court also sua sponte dismissed the Ci-
cippios’ complaint under Federal Rules of Civil Procedure
12(b)(6) and 12(h)(3), holding that ‘‘the FSIA, as amended,
does not confer subject matter jurisdiction upon it to enter-
tain claims for emotional distress and solatium brought by
claimants situated as are these plaintiffs upon the allegations
of their complaint.’’ Cicippio-Puleo v. Islamic Republic of
Iran, Civ. No. 01-1496, slip op. at 2, (D.D.C. June 21, 2002),
reprinted in Appendix (‘‘App.’’) 3, 4. Joseph Cicippio’s chil-
dren and siblings now appeal. Responding to our request,
the Justice Department has filed a brief as amicus curiae
stating the position of the United States. The Government’s
position is that neither section 1605(a)(7) of the FSIA nor the
Flatow Amendment, 28 U.S.C. § 1605 note, creates a private
cause of action against foreign governments for acts of hos-
tage taking or torture.
We affirm the judgment of the District Court. Section
1605(a)(7) of the FSIA abrogates foreign sovereign immunity
and provides jurisdiction in specified circumstances, but it
does not create a private cause of action. By its clear terms,
the Flatow Amendment provides a private right of action only
against individual officials, employees, and agents a foreign
state, but not against a foreign state itself. Plainly, neither
section 1605(a)(7) nor the Flatow Amendment, separately or
together, establishes a cause of action against foreign state
sponsors of terrorism. Therefore, the Cicippios’ suit cannot
proceed on these grounds. However, because the Cicippios’
suit was filed in the wake of judgments in favor of Mr. and
Mrs. Cicippio and other hostage victims, they may have been
misled in assuming that the Flatow Amendment afforded a
cause of action against foreign state sponsors of terrorism.
We therefore affirm the judgment of the District Court, but
4
remand the case to allow plaintiffs an opportunity to amend
their complaint to state a cause of action under some other
source of law. We reserve judgment, however, on whether
the Cicippios have any viable basis for an action against Iran,
leaving that issue to the District Court in the first instance.
I. BACKGROUND
A. Facts
On the morning of September 12, 1986, Joseph. J. Cicippio
was kidnaped in Beiruit, Lebanon, by the terrorist group
Hizbollah, an agent of Iran’s Ministry of Information and
Security (‘‘MOIS’’). At the time of his abduction, Mr. Cicip-
pio was comptroller of the American University of Beiruit.
Hizbollah held him hostage for 1,908 days. During that time,
he was randomly beaten, confined in rodent- and scorpion-
infested cells, and bound by chains. He suffered from nu-
merous medical problems emanating from the inhumane
treatment that he experienced during his captivity. At some
point after Mr. Cicippio was taken hostage, he was forced to
undergo major surgery for an unidentified abdominal condi-
tion that has left a ten-inch scar on his abdomen. See
Cicippio, 18 F. Supp. 2d at 66.
In 1996, Joseph Cicippio filed suit against Iran under the
‘‘terrorism exception’’ to the FSIA, 28 U.S.C. § 1605(a)(7),
and the Flatow Amendment, 28 U.S.C. § 1605 note. His
lawsuit was joined by his wife, Elham Cicippio, two other
hostage victims, and the wife of one of the other victims. The
Iranian defendants did not respond to the complaint and were
found in default. The case was tried ex parte and, on August
27, 1998, the District Court rendered a judgment for Joseph
Cicippio in the amount of $20 million in damages for lost
wages and opportunities and compensatory damages for pain
and suffering and mental anguish, and $10 million for Mrs.
Cicippio in damages for loss of her husband’s society and
companionship and mental anguish. See Cicippio, 18 F.
Supp. 2d at 64, 70. Iran never entered an appearance in the
case and no appeal was taken from the judgment of the
District Court.
5
The instant case arises from a lawsuit brought in 2001 by
Joseph Cicippio’s seven adult children and seven siblings
against Iran and MOIS for the intentional infliction of emo-
tional distress and loss of solatium they sustained as a result
of Mr. Cicippio’s ordeal. The suit was based on claims
purporting to arise under section 1605(a)(7) and the Flatow
Amendment. On January 2, 2002, after Iran failed to re-
spond to the complaint, the District Court entered a default
judgment for the Cicippio children and siblings. On January
10, 2002, the Cicippios filed a motion for summary judgment.
They subsequently filed a motion to consolidate their case
with Mr. and Mrs. Cicippio’s lawsuit against Iran, which by
then had been closed. The motion for summary judgment
included affidavits from the children and siblings establishing
that Mr. Cicippio’s captivity caused them to suffer from
emotional distress by virtue of the harm done to him.
B. The Statutory Framework
The FSIA provides that ‘‘[s]ubject to existing international
agreements to which the United States is a party at the time
of enactment of this Act a foreign state shall be immune from
the jurisdiction of the courts of the United States and of the
States except as provided in sections 1605 to 1607 of this
chapter.’’ 28 U.S.C. § 1604. Under the FSIA, foreign states
enjoy immunity from suit in U.S. courts unless Congress
waives immunity under an enumerated exception. In 1996, as
part of the comprehensive Antiterrorism and Effective Death
Penalty Act (‘‘AEDPA’’), Congress enacted the ‘‘terrorism
exception’’ to the FSIA, waiving the immunity of foreign
states and their agents in any case
in which money damages are sought against a for-
eign state for personal injury or death that was
caused by an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of
material support or resources (as defined in section
2339A of title 18) for such an act if such act or
provision of material support is engaged in by an
official, employee, or agent of such foreign state
6
while acting within the scope of his or her office,
employment, or agency TTT
28 U.S.C. § 1605(a)(7). This provision only waives the immu-
nity of a foreign state defendant that has been specifically
designated by the State Department as a ‘‘state sponsor of
terrorism,’’ 28 U.S.C. § 1605(a)(7)(A), and does not apply if
(i) the act occurred in the foreign state against
which the claim has been brought and the claimant
has not afforded the foreign state a reasonable
opportunity to arbitrate the claim in accordance with
accepted international rules of arbitration; or
(ii) neither the claimant nor the victim was a nation-
al of the United States (as that term is defined in
section 101(a)(22) of the Immigration and Nationali-
ty Act) when the act upon which the claim is based
occurred.
28 U.S.C. § 1605(a)(7)(B).
Five months after the passage of AEDPA, Congress enact-
ed a separate provision, titled Civil Liability for Acts of State
Sponsored Terrorism, which created a private right of action
against officials, employees, and agents of foreign states for
the conduct described in § 1605(a)(7). See Omnibus Consoli-
dated Appropriations Act of 1997, Pub. L. No. 104-208, Div.
A, Title I, § 101(c) [Title V, § 589], 110 Stat. 3009-172 (codi-
fied at 28 U.S.C. § 1605 note). This provision is known as
the ‘‘Flatow Amendment,’’ in recognition of the family of Alisa
Flatow, a woman who died as the result of a terrorist
bombing in Israel. See Flatow v. Islamic Republic of Iran,
999 F. Supp. 1, 12 (D.D.C. 1998). The Flatow Amendment
provides:
(a) An official, employee, or agent of a foreign state
designated as a state sponsor of terrorism designat-
ed under section 6(j) of the Export Administration
Act of 1979 [section 2405(j) of the Appendix to Title
50, War and National Defense] while acting within
the scope of his or her office, employment, or agency
shall be liable to a United States national or the
7
national’s legal representative for personal injury or
death caused by acts of that official, employee, or
agent for which the courts of the United States may
maintain jurisdiction under section 1605(a)(7) of title
28, United States Code [subsec. (a)(7) of this section]
for money damages which may include economic
damages, solatium, pain, and suffering, and punitive
damages if the acts were among those described in
section 1605(a)(7) [subsec. (a)(7) of this section].
28 U.S.C. § 1605 note.
It is undisputed that the Flatow Amendment permits U.S.
nationals to pursue a private right of action for terrorism
against officials, employees, and agents of designated foreign
states acting in their personal capacities. At issue here is
whether section 1605(a)(7) and the Flatow Amendment simi-
larly provide a cause of action against a foreign state.
C. The District Court’s Judgment
The District Court assumed that plaintiffs’ factual allega-
tions were true, but denied both their motion to consolidate
their case with Mr. and Mrs. Cicippio’s case and their motion
for summary judgment. The court also sua sponte dismissed
the Cicippios’ complaint under Federal Rules of Civil Proce-
dure 12(b)(6) and 12(h)(3), concluding that ‘‘the FSIA, as
amended, does not confer subject matter jurisdiction upon it
to entertain claims for emotional distress and solatium
brought by claimants situated as are these plaintiffs upon the
allegations of their complaint.’’ Cicippio-Puleo, Civ. No. 01-
1496, slip op. at 2, App. 4. Noting that a foreign state is
‘‘liable in the same manner and to the same extent as a
private individual under like circumstances,’’ 28 U.S.C.
§ 1606, the District Court held that the plaintiffs could not
recover under the prevailing common law rule governing
third party claims for outrageous conduct causing severe
emotional distress. Cicippio-Puleo, Civ. No. 01-1496, slip op.
at 3-4, App. 5-6. The District Court cited the Restatement
(Second) of Torts for the proposition that a third party
claimant must be present at the scene of the victim’s torment
in order to state a claim for intentional infliction of emotional
8
distress. Id. (citing RESTATEMENT (SECOND) OF TORTS § 46
(1986)). The District Court also held that solatium damages
were unavailable to Mr. Cicippio’s adult children and siblings,
because ‘‘another generally observed rule of American com-
mon law has refused to recognize a right to recover damages
for loss of ‘society and companionship’ by other than spouses
for injury to a third party – even a relative – not resulting in
third party’s death.’’ Cicippio-Puleo, Civ. No. 01-1496, slip
op. at 4, App. 6.
As noted above, the District Court based its dismissal of
the complaint on two grounds: Rule 12(b)(6) (‘‘failure to state
a claim upon which relief can be granted’’) and Rule 12(h)(3)
(‘‘the court lacks jurisdiction of the subject matter’’). The
second ground is inapposite, for it is clear that the District
Court had jurisdiction pursuant to the statutory waiver of
sovereign immunity under 28 U.S.C. § 1605(a)(7). Nonethe-
less, in their arguments to this court, the parties do not
disagree that the principal basis for the District Court’s
dismissal was not a lack of jurisdiction, but, rather, plaintiffs’
failure to state claims upon which relief could be granted. In
other words, the parties do not disagree that the District
Court’s disposition embraces the conclusion that the plaintiffs
cannot pursue their claims of emotional distress and loss of
solatium against a foreign state under the Flatow Amend-
ment. The Cicippios now appeal the District Court’s dismiss-
al of their claims.
D. The Appointment of Amicus Curiae and the Issues on
Appeal
Because Iran has never entered an appearance in this
litigation, the court appointed the Georgetown University
Law Center’s Appellate Litigation Program as amicus curiae
to present arguments in support of the District Court’s
judgment.*
* As they have done in the past, see Bettis v. Islamic Republic of
Iran, 315 F.3d 325, 332 note* (D.C. Cir. 2003), the advocates from
the Appellate Litigation Program responded admirably on very
short notice in assisting the court with an outstanding brief and oral
argument.
9
The court also ordered the parties to brief and argue, inter
alia, the following issues:
‘‘ ‘Whether the FSIA creates a federal cause of
action for torture and hostage taking against foreign
states,’ or only against their ‘official[s], employee[s]
or agent[s]’ as specified in the [Flatow] Amend-
ment,’’ an issue raised but not decided in Price v.
Socialist People’s Libyan Arab Jamahiriya, 294
F.3d 82 (D.C. Cir. 2002).
Whether Cicippio’s children and siblings may sue for
intentional infliction of emotional distress and loss of
solatium.
Whether appellants who seek to recover for emotion-
al distress based on conduct directed at a third party
must have been present at the time of the offending
conduct, and, if so, whether appellants satisfied this
‘‘presence’’ requirement.
Cicippio-Puleo v. Islamic Republic of Iran, No. 02-7085 (D.C.
Cir. July 9, 2003) (order appointing amicus curiae).
Subsequently, the court granted the motion of Blake Kil-
burn et al. (‘‘Kilburn amici’’), plaintiffs in other lawsuits in
the district court against foreign states, for leave to partici-
pate as amici curiae. Cicippio-Puleo v. Islamic Republic of
Iran, No. 02-7085 (D.C. Cir. July 31, 2003) (order granting
motion for leave to participate as amici curiae).
E. The Appearance of the United States as Amicus Curi-
ae
On November 6, 2003, the court issued the following order
soliciting the views of the United States:
It is ORDERED, on the court’s own motion, and in
accordance with 28 U.S.C. § 517, that the United
States of America file, by December 1, 2003, a
statement of its current position on the question
whether the Foreign Sovereign Immunities Act, 28
U.S.C. §§ 1602-11 (2003), allows a cause of action for
torture and hostage taking against foreign states, or
10
only authorizes statutory claims against state offi-
cials, employees, or agents as specified in the Flatow
Amendment, 28 U.S.C. § 1605 (note) (2000).
When the United States appeared in Roeder v.
Islamic Republic of Iran, the Government submit-
ted, inter alia,
The Flatow Amendment does not provide a
cause of action against foreign nations or their
governmentsTTTT Quite unambiguously, the
statute provides a cause of action against indi-
vidual ‘‘official[s], employee[s], or agent[s]’’ of
foreign states for the acts of terrorism in which
they have taken part, but not against foreign
states themselves.
The United States’ Motion to Vacate Default Judg-
ment and Dismiss Plaintiffs’ Claims at 20-21, Roeder
v. Islamic Republic of Iran, 195 F. Supp. 2d 140
(D.D.C. 2002) (Civ. No. 00-3110 EGS). In a later
submission in Roeder, the Government further sub-
mitted that,
as the United States observed previously, the
plain language of the Flatow Amendment pro-
vides the victims of terrorist acts a cause of
action against the ‘‘official[s], employee[s] or
agent[s] of a foreign state’’ who commit such
acts, not against the foreign state itself.
Reply Memorandum in Support of the United
States’ Motion to Vacate Default Judgment and
Dismiss Plaintiffs’ Claims at 17, Roeder v. Islamic
Republic of Iran, 195 F. Supp. 2d 140 (D.D.C. 2002)
(Civ. No. 00-3110 EGS).
The court hereby requests that the United States
indicate whether the Government’s position on the
scope of the cause of action under the Flatow
Amendment remains the same as indicated above,
and, if not, explain how and why the position of the
United States has changed.
11
Cicippio-Puleo v. Islamic Republic of Iran, No. 02-7085 (D.C.
Cir. Nov. 5, 2003) (order requesting statement of United
States).
After receiving a two-day extension of time in which to
submit its position, the United States filed a brief as amicus
curiae on December 3, 2003, stating the firm view that the
Flatow Amendment does not provide a private right of action
against a foreign state:
Neither Section 1605(a)(7) nor the Flatow Amend-
ment, nor the two considered in tandem, offers any
indication that Congress intended to take the more
provocative step of creating a private right of action
against foreign governments themselves. Such a
move could have serious adverse consequences for
the conduct of foreign relations by the Executive
Branch, and therefore an intent to do so should not
be inferred – it should be recognized only if Con-
gress has acted clearly in that direction.
Br. for the United States as Amicus Curiae at 5.
II. ANALYSIS
A. Standard of Review
In denying plaintiffs’ motion for summary judgment and in
sua sponte dismissing their complaint pursuant to Rule 12
(b)(6), the District Court assumed that plaintiffs’ factual
allegations were true. The standard of review covering both
the denial of summary judgment and the dismissal for failure
to state a claim is the same – de novo. Sturdza v. United
Arab Emirates, 281 F.3d 1287, 1293 (D.C. Cir. 2002) (citing
Wilson v. Pena, 79 F.3d 154, 160 n.1 (D.C. Cir. 1996)). And
we may affirm a district court’s sua sponte dismissal for
failure to state a claim if it appears beyond a doubt that the
plaintiffs can prove no set of facts that would entitle them to
relief. See Baker v. Dir., United States Parole Comm’n, 916
F.2d 725, 726 (D.C. Cir. 1990). Because we hold that the
Flatow Amendment does not authorize a cause of action
against foreign states, it is clear that plaintiffs can allege no
12
facts in their lawsuit against Iran that would entitle them to
relief under the Flatow Amendment. Therefore, we affirm
the District Court’s dismissal for failure to state a claim
under section 1605(a)(7) and the Flatow Amendment.
B. The Limited Cause of Action under the Flatow
Amendment
Section 1605(a)(7) waives the sovereign immunity of a
designated ‘‘foreign state’’ in actions in which money damages
are sought for personal injury or death caused by one of the
specified acts of terrorism, if the act of terrorism or provision
of material support is engaged in by ‘‘an official, employee, or
agent of such foreign state while acting within the scope of
his or her office, employment, or agency.’’ 28 U.S.C.
§ 1605(a)(7). Section 1605(a)(7) is merely a jurisdiction-
conferring provision that does not otherwise provide a cause
of action against either a foreign state or its agents. Howev-
er, the Flatow Amendment, 28 U.S.C. § 1605 note, undoubt-
edly does provide a cause of action against ‘‘[a]n official,
employee, or agent of a foreign state designated as a state
sponsor of terrorism’’ ‘‘for personal injury or death caused by
acts of that official, employee, or agent for which the courts of
the United States may maintain jurisdiction under section
1605(a)(7).’’ The question here is whether the Flatow
Amendment, which does not refer to ‘‘foreign state,’’ may be
construed, either alone or in conjunction with section
1605(a)(7), to provide a cause of action against a foreign state.
This issue was flagged in Price v. Socialist People’s Arab
Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002), where we observed
that
[t]he FSIA is undoubtedly a jurisdictional statute
which, in specified cases, eliminates foreign sover-
eign immunity and opens the door to subject matter
jurisdiction in the federal courts. See First Nat’l
City Bank v. Banco Para El Comercio Exterior de
Cuba, 462 U.S. 611, 620, 103 S. Ct. 2591, 2596-97, 77
L.Ed.2d 46 (1983). There is a question, however,
whether the FSIA creates a federal cause of action
13
for torture and hostage taking against foreign
states.
Id. at 87. Since Price, some district court opinions in this
circuit have held or assumed that the Flatow Amendment
creates a cause of action against foreign states. See Cronin
v. Islamic Republic of Iran, 238 F. Supp. 2d 222, 231 (D.D.C.
2002) (holding that the Flatow Amendment provides a cause
of action against a foreign state). See also Regier v. Islamic
Republic of Iran, 281 F. Supp. 2d 87, 98-99 (D.D.C. 2003)
(adopting Cronin’s reasoning that there is a cause of action
against foreign states under the Flatow Amendment); Kil-
burn v. Islamic Republic of Iran, 277 F. Supp. 2d 24, 36-37
(D.D.C. 2003) (same).
This court, however, has never affirmed a judgment that
the Flatow Amendment, either alone or in conjunction with
section 1605(a)(7), provides a cause of action against a foreign
state. The issue was raised in Bettis v. Islamic Republic of
Iran, 315 F.3d 325, 333 (D.C. Cir. 2003), but the appeal was
resolved on other grounds. In Roeder v. Islamic Republic of
Iran, 333 F.3d 228 (D.C. Cir. 2003), the court noted that, ‘‘[i]n
view of the Flatow amendment’s failure to mention the liabili-
ty of foreign states, it is ‘far from clear’ that a plaintiff has a
substantive claim against a foreign state under the Foreign
Sovereign Immunities Act,’’ id. at 234 n.3, but that appeal was
also decided on other grounds.
We now hold that neither 28 U.S.C. § 1605(a)(7) nor the
Flatow Amendment, nor the two considered in tandem, cre-
ates a private right of action against a foreign government.
Section 1605(a)(7) merely waives the immunity of a foreign
state without creating a cause of action against it, and the
Flatow Amendment only provides a private right of action
against officials, employees, and agents of a foreign state, not
against the foreign state itself. Because we hold that there is
no statutory cause of action against Iran under these provi-
sions, we affirm the District Court’s judgment without decid-
ing whether the evidence presented by the plaintiffs is suffi-
cient to recover for intentional infliction of emotional distress
or loss of solatium.
14
* * * *
There is a clearly settled distinction in federal law between
statutory provisions that waive sovereign immunity and those
that create a cause of action. It cannot be assumed that a
claimant has a cause of action for damages against a govern-
ment agency merely because there has been a waiver of
sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 483-
84 (1994). As the Supreme Court has noted:
The first inquiry is whether there has been a waiver
of sovereign immunity. If there has been such a
waiver, as in this case, the second inquiry comes into
play–that is, whether the source of substantive law
upon which the claimant relies provides an avenue
for relief.
Id. at 484.
The Supreme Court has also made it clear that the federal
courts should be loathe to ‘‘imply’’ a cause of action from a
jurisdictional provision that ‘‘creates no cause of action of its
own force and effect TTT [and] imposes no liabilities.’’ See
Touche Ross & Co. v. Reddington, 442 U.S. 560, 577 (1979).
‘‘The ultimate question is one of congressional intent, not one
of whether this Court thinks that it can improve upon the
statutory scheme that Congress enacted into law.’’ Id. at
578. In adhering to this view, the Supreme Court has
declined to construe statutes to imply a cause of action where
Congress has not expressly provided one. See, e.g., Correc-
tional Servs. Corp. v. Malesko, 534 U.S. 61, 67 n.3 (2001)
(recognizing the Court’s retreat from its previous willingness
to imply a cause of action where Congress has not provided
one); Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (‘‘Like
substantive federal law itself, private rights of action to
enforce federal law must be created by Congress.’’).
Unsurprisingly, the Supreme Court has applied the distinc-
tion between immunity and liability in interpreting the FSIA
itself, explaining that ‘‘[t]he language and history of the FSIA
clearly establish that the Act was not intended to affect the
substantive law determining the liability of a foreign state or
15
instrumentality.’’ First Nat’l City Bank v. Banco Para El
Comercio Exterior de Cuba, 462 U.S. 611, 620 (1983). With
this case law to guide us, there can be little doubt of the
outcome in this case.
* * * *
The language of section 1605(a)(7) and the Flatow Amend-
ment – the only provisions upon which plaintiffs rely – is
clear. In declaring that ‘‘[a] foreign state shall not be im-
mune from the jurisdiction of courts of the United States or
of the States TTT,’’ 28 U.S.C. § 1605(a)(7) merely abrogates
the immunity of foreign states from the jurisdiction of the
courts in lawsuits for damages for certain enumerated acts of
terrorism. It does not impose liability or mention a cause of
action. The statute thus confers subject matter jurisdiction
on federal courts over such lawsuits, but does not create a
private right of action.
As noted above, the Flatow Amendment imposes liability
and creates a cause of action. But the liability imposed by
the provision is precisely limited to ‘‘an official, employee, or
agent of a foreign state designated as a state sponsor of
terrorism.’’ ‘‘Foreign states’’ are not within the compass of
the cause of action created by the Flatow Amendment. In
short, there is absolutely nothing in section 1605(a)(7) or the
Flatow Amendment that creates a cause of action against
foreign states for the enumerated acts of terrorism.
We also agree with the United States that, insofar as the
Flatow Amendment creates a private right of action against
officials, employees, and agents of foreign states, the cause of
action is limited to claims against those officials in their
individual, as opposed to their official, capacities:
As the Supreme Court repeatedly has explained, an
official-capacity claim against a government official
is in substance a claim against the government it-
self. See, e.g., Kentucky v. Graham, 473 U.S. 159,
165 (1985)TTTT By definition, a damages judgment
in an official-capacity suit is enforceable against the
state itself (and only against the state). See Gra-
16
ham, 473 U.S. at 166 TTT; see also Fed. R. Civ. P.
25(d)TTTT Thus, to construe the Flatow Amend-
ment as permitting official-capacity claims would
eviscerate the recognized distinction between suits
against governments and suits against individual
government officialsTTTT [T]he text of the the Fla-
tow Amendment and Section 1605(a)(7), as well as
all relevant background interpretive principles TTT
foreclose any such construction.
Br. for the United States as Amicus Curiae at 17.
* * * *
The plaintiffs and amicus curiae dispute both the meaning
and relevance of the legislative history of the FSIA or the
Flatow Amendment in support of their competing arguments
to the court. The legislative history is largely irrelevant,
however, because the statutory language is clear – nothing in
section 1605(a)(7) or the Flatow Amendment establishes a
cause of action against foreign states. And, as we explain
below, there is nothing in the legislative history that raises
any serious doubts about the meaning of the statute.
In 1976, the House Judiciary Committee Report explained
that the FSIA was ‘‘not intended to affect the substantive law
of liability.’’ H.R. REP. NO. 94-1487, at 12 (1976). It stated
that the statute was intended to preempt other federal or
state law that accorded sovereign immunity, and to discontin-
ue the practice of judicial deference to suggestions of immuni-
ty from the executive branch. Id. But the statute was not
intended to affect ‘‘the attribution of responsibility between or
among entities of a foreign state; for example, whether the
proper entity of a foreign state has been sued; or whether an
entity sued is liable in whole or in part for the claimed
wrong.’’ Id.
When Congress passed section 1605(a)(7), the Conference
Committee report explained:
This subtitle provides that nations designated as
state sponsors of terrorism under section 6(j) of the
17
Export Administration Act of 1979 will be amenable
to suit in U.S. courts for terrorist acts. It permits
U.S. federal courts to hear claims seeking money
damages for personal injury or death against such
nations and arising from terrorist acts they commit,
or direct to be committed, against American citizens
or nationals outside of the foreign state’s territory,
and for such acts within the state’s territory if the
state involved has refused to arbitrate the claim.
H.R. CONF. REP. NO. 104-518, at 112 (1996). It is noteworthy
that the legislative history does not say that section 1605(a)(7)
imposes liability against foreign states or create a cause of
action against them.
When Congress later passed the appropriations bill that
included the Flatow Amendment, there was very little legisla-
tive history purporting to explain the enactment. The Con-
ference Report said: ‘‘The conference agreement inserts lan-
guage expanding the scope of monetary damage awards
available to American victims of international terrorism. The
conferees intend that this section shall apply to cases pending
upon enactment of this Act.’’ H.R. CONF. REP. NO. 104-863, at
987 (1996). As the United States notes in its brief, ‘‘[o]n its
face, that statement addresses only issues of damages and
retroactivity, not the question whether foreign states are
proper defendants in the first place.’’ Br. for the United
States as Amicus Curiae at 12. We agree. Thus, the
legislative history of the Flatow Amendment is not inconsis-
tent with the clear terms of the statute.
Subsequent enactments by Congress providing for the pay-
ment or enforcement of judgments entered against foreign
states in cases brought under § 1605(a)(7) fail to establish
that Congress created a cause of action against foreign states.
See Victims of Trafficking and Violence Protection Act of
2000, Pub. L. No. 106-386, § 2002, 114 Stat. 1464, 1541-43;
Terrorism Risk Insurance Act of 2002, Pub. L. No. 107-297,
§ 201, 116 Stat. 2322, 2337-39. As we explained in Roeder,
these statutes merely provide for payment ‘‘if an individual
has a judgment against Iran,’’ but they do not address or
18
resolve the anterior question ‘‘whether plaintiffs are legally
entitled to such a judgment.’’ 333 F.3d at 239 (emphasis
added). It is entirely plausible for Congress to direct the
United States to compensate victims of terrorism without
purporting to establish or support a cause of action against
foreign state sponsors of terrorism.
* * **
There is nothing anomalous in Congress’s approach in
enacting the Flatow Amendment. As we noted in Price, the
passage of § 1605(a)(7) involved a delicate legislative compro-
mise. While Congress sought to create a judicial forum for
the compensation of victims and the punishment of terrorist
states, it proceeded with caution, in part due to executive
branch officials’ concern that other nations would respond by
subjecting the American government to suits in foreign coun-
tries. See Price, 294 F.3d at 89 (citing John F. Murphy, Civil
Liability for the Commission of International Crimes as an
Alternative to Criminal Prosecution, 12 HARV. HUM. RTS. J. 1,
35-37 (1999)).
The plaintiffs suggest that our construction of the Flatow
Amendment ‘‘w[ill] mean that what Congress gave with one
hand in section 1605(a)(7) it immediately took away with the
other in the Flatow Amendment.’’ See Cronin, 238 F. Supp.
2d at 232. We disagree. Section 1605(a)(7) does not purport
to grant victims of terrorism a cause of action against foreign
states, or against officials, employees, or agents of those
states acting in either their official or personal capacities.
Therefore, the Flatow Amendment’s authorization of a limited
cause of action against officials, employees, and agents acting
in their personal capacities takes nothing away from
§ 1605(a)(7). What § 1605(a)(7) does is to make it clear that
designated foreign state sponsors of terrorism will be amena-
ble to suits in United States courts for acts of terrorism in
cases in which there is a viable cause of action.
Clearly, Congress’s authorization of a cause of action
against officials, employees, and agents of a foreign state was
a significant step toward providing a judicial forum for the
19
compensation of terrorism victims. Recognizing a federal
cause of action against foreign states undoubtedly would be
an even greater step toward that end, but it is a step that
Congress has yet to take. And it is for Congress, not the
courts, to decide whether a cause of action should lie against
foreign states. Therefore, we decline to imply a cause of
action against foreign states when Congress has not expressly
recognized one in the language of section 1605(a)(7) or the
Flatow Amendment.
* * * *
Although we affirm the District Court’s dismissal of plain-
tiffs’ complaint for failure to state a claim under section
1605(a)(7) and the Flatow Amendment, we will nonetheless
remand the case. The Cicippios’ suit was filed in the wake of
judgments in favor of Mr. and Mrs. Cicippio and other
hostage victims, so they may have been misled in assuming
that the Flatow Amendment afforded a cause of action
against foreign state sponsors of terrorism. We will there-
fore remand the case to allow plaintiffs an opportunity to
amend their complaint to state a cause of action under some
other source of law, including state law, as the Kilburn amici
have suggested.
In remanding, we do not mean to suggest, one way or the
other, whether plaintiffs have a viable cause of action. The
possibility that an alternative source of law might support
such a claim was addressed only by amici, and we do not
ordinarily decide issues not raised by parties. See, e.g.,
Narragansett Indian Tribe v. Nat’l Indian Gaming Comm’n,
158 F.3d 1335, 1338 (D.C. Cir. 1998). Accordingly, we will
leave it to the District Court in the first instance to address
any amended complaint that is offered by plaintiffs.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
District Court dismissing plaintiffs’ complaint for failure to
state a claim upon which relief can be granted, and remand
the case for further proceedings consistent with this opinion.