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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2006 Decided November 21, 2006
No. 05-7048
SANDRA JEAN SIMPSON, INDIVIDUALLY
AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF
DR. MOSTAFA FAHMY KARIM, DECEASED,
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: ROGERS and GARLAND, Circuit Judges, and
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SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This appeal follows our remand to
afford the plaintiffs an opportunity to amend their complaint to
state a cause of action for hostage taking under the 1996
Terrorism Amendment to the Foreign Sovereign Immunities Act
(“FSIA”), 28 U.S.C. § 1605(a)(7). Simpson v. Socialist People’s
Libyan Arab Jamahiriya, 326 F.3d 230 (D.C. Cir. 2003)
(“Simpson I”). Libya contends that the district court lacks
subject matter jurisdiction and makes both legal and evidentiary
challenges to the amended complaint. We hold that because the
FSIA definition of hostage taking, 28 U.S.C. § 1605(e)(2),
focuses on the state of mind of the hostage taker, a plaintiff need
not show that the hostage taker communicated a demand
reflecting the hostage taker’s intended purpose to a third party.
We assume here that a plaintiff asserting an exception to
sovereign immunity under FSIA has a burden of production to
support its allegations of hostage taking, and further hold that
the plaintiffs met their burden and, conversely, that Libya has
failed to meet its burden of persuasion. Libya offers no
evidence of its own and points to nothing in the plaintiffs’
evidence that is inconsistent with the allegations in the amended
complaint about Libya’s possible intended purposes for the
detention. Accordingly, we affirm the order denying Libya’s
motion to dismiss the amended complaint on sovereign
immunity grounds.
I.
In February 1987, Sandra Jean Simpson, a United States
citizen, and her husband, Dr. Mostafa Karim, a permanent
resident of the United States who was born in Egypt, were
aboard the Carin II, a private yacht, cruising in the
3
Mediterranean Sea on a course from Italy to Greece, when an
unexpected storm forced the boat to veer off course and send a
radio distress signal. Libyan harbor authorities responded to the
signal on February 10, 1987, offering the port of Benghazi as a
safe harbor. According to the amended complaint, on February
14, 1987, while the boat was in port, Libyan authorities boarded
the boat and removed the passengers and crew. The Libyans
held the Carin II party captive and threatened to shoot them if
they attempted to leave. Three months into the captivity, Libyan
authorities forcibly separated Ms. Simpson and Dr. Karim,
permitting Ms. Simpson to fly to Zurich and placing her
husband in solitary confinement, in unsanitary conditions
without adequate medical care or proper food, for a period of
seven months. Dr. Karim was released from captivity in
November 1987, after intense negotiations among Belgium,
Egypt, and Libya; he died of cancer in 1993.
Ms. Simpson and her husband’s estate sued Libya, alleging
torture, hostage-taking, battery, false imprisonment, intentional
infliction of emotional distress, and loss of consortium, and
seeking compensatory damages. Libya moved to dismiss the
complaint for: (1) lack of subject-matter jurisdiction, on the
ground that Ms. Simpson’s offer to arbitrate did not satisfy
FSIA’s jurisdictional requirements; (2) lack of personal
jurisdiction; and (3) failure to state a claim for torture and
hostage taking. The district court denied the motion. See
Simpson v. Socialist People’s Libyan Arab Jamahiriya, 180 F.
Supp. 2d 78, 89 (D.D.C. 2001). On appeal, this court held that
Ms. Simpson’s offer to arbitrate satisfied the jurisdictional
requirements of FSIA, see 28 U.S.C. § 1605(a)(7)(B)(I), but
reversed as to the torture claim for insufficient allegations of
severity, citing Price v. Socialist People’s Libyan Arab
Jamahiriya, 294 F.3d 82, 91-93 (D.C. Cir. 2002) (“Price I”), and
vacated and remanded on the hostage-taking claim so that the
plaintiffs could amend the complaint to allege facts supporting
4
the proposition that Libya intended to compel action or inaction
by a third party as a condition of releasing Ms. Simpson and Dr.
Karim. Simpson I, 326 F.3d at 233-35.
In response, the plaintiffs filed an amended complaint
which alleged three likely motives Libya might have had for
abducting Ms. Simpson and Dr. Karim. The amended complaint
stated that, in exchange for releasing them, Libya may have
wanted: (1) the United States to stop conducting air raids against
Libya; (2) revenge for previous U.S. air attacks; and (3) Egypt
to return military assets to Libya. It also referenced Libya’s
pattern of terrorist activity. The amended complaint cited
newspaper articles, Libya’s history of taking and releasing
hostages, and a 1997 Department of Defense intelligence report.
Upon Libya’s renewed motion to dismiss for lack of
subject-matter jurisdiction, personal jurisdiction, and for failure
to state a claim, pursuant to Federal Rules of Civil Procedure
12(b)(1), 12(b)(2) and 12(b)(6), the district court ordered the
plaintiffs to provide support for their jurisdictional claim. The
plaintiffs submitted additional materials, including an expert
opinion and the State Department’s Patterns of Global
Terrorism, to show that prior and similar acts demonstrated that
Libya intended to hold Ms. Simpson and Dr. Karim to trade
them for Libyan defectors and military equipment held in Egypt,
and/or as human shields against another United States air attack
on Libya. Libya submitted no materials of its own in response,
and the district court denied the motion to dismiss. The district
court found that the plaintiffs had produced sufficient evidence
of a quid pro quo to support two theories, regarding use of Ms.
Simpson and Dr. Karim as human shields and use of Dr. Karim
to obtain the return of Libyan defectors and material lost to
Egypt, but not as regards Libya’s alleged pursuit of retributive
justice as that entailed no form of exchange with a third party.
Simpson v. Socialist People’s Libyan Arab Jamahiriya, 362 F.
5
Supp. 2d 168, 178-80 (D.D.C. 2005).
II.
On appeal, Libya challenges the legal and evidentiary basis
of the hostage taking claim on the ground that the plaintiffs
failed to show the essential “intended purpose.” Simpson I, 326
F.3d at 235 (citing Price I, 294 F.3d at 94). The court has
jurisdiction of this interlocutory appeal pursuant to 28 U.S.C.
§ 1291 and the collateral order doctrine of Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 546 (1949). See Kilburn
v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123,
1126 (D.C. Cir. 2004) (citations omitted). We review the denial
of the motion to dismiss for the legal and factual sufficiency of
the plaintiffs’ claims de novo. See id. at 1127 (citing Price I,
294 F.3d at 91).
Congress amended the FSIA in the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214, 1241-42 (Apr. 24, 1996), adding the so-called
“terrorism exception,” which denies sovereign immunity in any
case “in which money damages are sought against a foreign state
for personal injury or death that was caused by an act of . . .
hostage taking . . . .” 28 U.S.C. § 1605(a)(7). Section 1605(e)(2)
defines “hostage taking” as that term is used in Article I of the
International Convention Against the Taking of Hostages
(“ICATH” or “Convention”). See 28 U.S.C. § 1605(e)(2). As
the court recognized in Simpson I,
‘[h]ostage taking’ occurs under ICATH (and so under
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 . . . to do or abstain
from doing any act as an explicit or implicit condition
for the release of a hostage.’
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326 F.3d at 234 (quoting 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 [C]onvention.” Id. at 234-35 (citing Price I,
294 F.3d at 94). There must be some “quid pro quo”
arrangement whereby the hostage would have been released
“upon performance or non-performance of any action by that
third party.” Price I, 294 F.3d at 94.
The hostage-taking exception applies only if three
additional criteria are also satisfied: [(1)] the foreign state was
designated a “state sponsor of terrorism” at the time the act
occurred; [(2)] the foreign state was given a reasonable
opportunity to arbitrate a claim regarding an act that occurred
within the state’s borders; and [(3)] the claimant or victim was
a national of the United States. 28 U.S.C. § 1605(a)(7)(A), (B).
These three criteria are satisfied here, and thus the only question
is whether the plaintiffs’ claims fall within the main body of the
exception. Kilburn, 376 F.3d at 1127. Libya bears the burden
of “proving that the plaintiffs’ allegations do not bring its case
within a statutory exception to immunity.” Phoenix Consulting,
Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000).
A.
The legal question raised by Libya is whether third-party
awareness of a hostage-taker’s intent is a required element of the
hostage-taking exception that must be pled as a jurisdictional
fact and supported by evidence. Libya contends that the
plaintiffs can show intended purpose only where there is “a
minimum showing that the third party is at least aware of the
possibility that there is a hostage.” Appellant’s Br. at 15.
Libya’s contention, however, is wholly unsupported by our case
law and the statutory definition of hostage-taking.
7
In Simpson I, 326 F.3d at 234-35, the court looked to the
FSIA definition of hostage taking set forth in Price I. There, the
court emphasized that “[t]he Convention does not proscribe all
detentions, but instead focuses on the intended purpose of the
detention.” Price I, 294 F.3d at 94. In Price, the plaintiffs
showed that they were detained to demonstrate the hostage-
taker’s foreign policy – in that case, Libya’s support of Iran’s
holding of American hostages. Id. The court held that plaintiffs
did not meet the intentionality requirement. The Convention
speaks in terms of conditions of release; the defendant
must have detained the victim in order to compel some
particular result, specifically to force a third party
either to perform an act otherwise unplanned or to
abstain from one otherwise contemplated so as to
ensure the freedom of the detainee.
Id. Consequently, to show intended purpose, the plaintiff must
“suggest[] [a] demand for quid pro quo terms between . . . Libya
and a third party whereby [the hostages] would have been
released.” Id. The plaintiff must “point[] to [a] nexus between
what happened to [the hostages] in Libya and any concrete
concession that Libya may have hoped to extract from the
outside world.” Id. (emphasis added).
The plain text of the FSIA definition, explanatory
commentary on the Convention, and precedent under the Federal
Hostage Taking Act (“FHTA”), 18 U.S.C. § 1203, which defines
the behavior proscribed in terms identical to the Convention, all
reflect that a plaintiff need not allege that the hostage taker had
communicated its intended purpose to the outside world.
Consistent with the plain text, the court in Price I explained that
the intentionality requirement focused on the mens rea of the
hostage taker. 294 F.3d at 94. The commentary, which Libya
dismisses without explanation, similarly explains that
8
“demands” are not required to establish the element of hostage
taking: “The words ‘in order to compel’ do not require more
than a motivation on the part of the offender.” See Joseph J.
Lambert, Terrorism and Hostages in International Law, 1979,
at 306. Case law under the FHTA reflects the same analysis.
Where air hijackers prosecuted under the FHTA told their
hostages of their intended purpose, evidence that a third party
was aware of that purpose was not an essential element for
conviction. United States v. Yunis, 924 F.2d 1086, 1089-90,
1096-97 (D.C. Cir. 1991); cf. United States v. Crosby, 713 F.2d
1066, 1070-71, 1079 (D.C. Cir. 1983) (regarding 18 U.S.C. §
1201(a)(2)). Libya’s assertion that these cases are inapplicable
because they involve private actors who, unlike a sovereign,
have no authority to detain foreigners misses the point. The text
of the Terrorism Exception and the commentary make clear that
plaintiffs need not demonstrate that a third party was aware of
the hostage taking.
It suffices, then, for a plaintiff bringing suit under the FSIA
Terrorism Exception to allege a quid pro quo as the hostage-
taker’s intended result from the detention at issue. See Price I,
294 F.3d at 94. Such an allegation is legally sufficient to
withstand a motion to dismiss, and the law requires no further
showing with respect to third-party awareness of the defendant’s
hostage-taking intent. Here, the plaintiffs have alleged the
required quid pro quo, and thus their jurisdictional facts are
legally sufficient to state a claim under the Terrorism Exception.
However, a sovereign defendant disputing FSIA jurisdiction
may also contest the jurisdictional facts alleged by the plaintiff.
See Phoenix Consulting, 216 F.3d at 40. In such cases, the court
is obliged to review any determinations of factual sufficiency
made by the district court.
B.
Libya challenges the competence of plaintiffs’ evidence
9
supporting their allegations of Libya’s intended purpose and the
district court’s failure to resolve an additional factual
jurisdiction dispute.
First, Libya maintains that the “hypothetical scenarios” do
not constitute either an explicit or an implicit condition for the
release of Ms. Simpson or Dr. Karim. It points to the fact that
in order to find that the plaintiffs had sufficiently alleged two
theories for Libya’s possible “intended purposes,” the district
court relied on the plaintiffs’ proffered expert opinion of Mr.
Mayer Nudell. According to Libya, Mr. Nudell’s affidavit did
not direct the district court to any implicit conditions for release,
but only to “likely ‘scenarios’” and Mr. Nudell never asserted
that he had knowledge of the scenarios independent of the
materials supplied by the plaintiffs. Libya concludes that such
“flimsy grounds” cannot support the exercise of subject matter
jurisdiction. Even viewing the evidence most favorably to the
plaintiffs, Libya maintains that the amended complaint and Mr.
Nudell’s hypothetical scenarios do not point to any nexus
between what happened to Ms. Simpson and Dr. Karim and any
concrete concession that Libya may have hoped to extract from
the outside world.
In Kilburn, the court noted that, beyond the defendant’s
ultimate burden of persuasion, other burdens may be placed on
the parties when the defendant files a motion to dismiss, 376
F.3d at 1131, although the court has never held that either the
plaintiff or the defendant bears the initial burden of production,
id. The court has been clear, however, that when a plaintiff
provides evidentiary support for its allegations, based on the
assumption that it has the burden of production, a defendant that
chooses to remain silent risks denial of its motion to dismiss.
More explicitly, in Kilburn, the court stated that Libya, in such
circumstances, had “satisfied neither a burden of production nor
[its] required burden of persuasion.” 376 F.3d at 1132; cf Price
10
v. Socialist People’s Libyan Arab Jamahiriya, 389 F. 3d 192,
198 (D.C. Cir. 2004) (“Price II”). As in Kilburn, we assume
here that a plaintiff who relies on an exception to the FSIA
immunity provisions has an initial burden of production. We
hold that the plaintiffs have met their burden.
Based on Mr. Nudell’s extensive resume and the fact that
courts have previously taken judicial notice of the proffered
Patterns of Global Terrorism as representing the official
position of the United States government, see Kilburn, 376 F.3d
1123, the district court did not abuse its discretion in admitting
this evidence, see Kumho Tire v. Carmichael, 526 U.S. 137, 142
(1999); General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997).
Mr. Nudell’s opinion was consistent with the requirements of
Fed. R. Evid. 703, which does not require independent evidence
nor limit an expert to consideration of admissible evidence in
forming an opinion.1 See Ambrosini v. Labarraque, 101 F.3d
129, 132 (D.C. Cir. 1996). And as the district court noted on
remand, see Simpson, 362 F. Supp. 2d at 176 n.5, this court
affirmed the denial of a motion to dismiss under Rule 12(b)(1)
partially in consideration of the evidentiary weight of State
Department and CIA documents in Kilburn, 376 F.3d at 1131.
The plaintiffs needed to know why Libya acted as it did, but
1
Fed. R. Evid. 703 provides in pertinent part:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or
data need not be admissible in evidence in order for
the opinion or inference to be admitted.
11
could not compel Libya to explain. Instead, the plaintiffs
submitted their jurisdictional filings and put forward their best
assessments, based on available information. In that light, it was
eminently reasonable for the district court to find sufficient the
purposes proffered by the plaintiffs. See Price II, 389 F.3d at
197. Although Libya challenges the sufficiency of “hypothetical
scenarios,” the plaintiffs alleged facts and made offers of proof
on every salient fact regarding the possible reasons for Libya’s
detention of Ms. Simpson and Dr. Karim. Based on the
circumstantial evidence in the relevant proffers, see Holland v.
United States, 348 U.S. 121, 140 (1954), the district court could
reasonably draw inferences regarding Libya’s state of mind and
its intended purposes for detaining Ms. Simpson and Dr. Karim
based on the plaintiffs’ substantiated theories about Libya’s
intended purposes.
Second, Libya contends that the district court erred by
failing to address all of the disputed jurisdictional facts,
specifically ignoring evidence that “highlighted legitimate
reasons for [Ms.] Simpson’s detention as well as evidence
showing that [Ms.] Simpson and [Dr.] Karim were not
hostages.” The district court resolved all of the disputed facts
necessary to rule on Libya’s motion to dismiss. See Kilburn,
376 F.3d at 1127 (citing Phoenix Consulting, 216 F.3d at 39).
Libya’s reference to an alternative, but not necessarily
contradictory, explanation for their detention is not enough to
establish that the plaintiffs’ allegations do not bring the case
within a statutory exception to immunity. Libya may have had
more than one reason for their detention. Consequently, as the
district court found that the plaintiffs had sufficiently established
two purposes unrelated to the Egyptian espionage ring, it would
not necessarily follow that the district court was required to
address the third possible purpose.
Moreover, Libya is relying on evidence that on its face does
12
not establish the propositions it claims. The earliest State
Department cable that Libya references indicates only that,
initially, a source in Tripoli believed that the Carin II party was
being investigated in connection with an Egyptian espionage
ring. The cable is dated April 1987. Over the next several
months, however, various other cables indicate that: Ms.
Simpson and Dr. Karim could shed no light on why they were
detained; the State Department was considering a diplomatic
note to Libya “to protest Ms. Simpson’s unwarranted detention”
(emphasis added); and although the Belgian consul general
thought he might understand why the Carin II party was being
detained, he did not elaborate. Thus, insofar as the cables show,
by August 1987, the United States government was no longer
relying on the Egyptian espionage ring as an explanation for the
detention. Another cable indicates that Ms. Simpson, at least,
could have left Libya without her passport in May 1987.
However, again, in August 1987, the State Department was
concerned about her continued “unwarranted detention.” The
other evidence cited by Libya describes how the hostages were
treated, and is unrelated to whether or not they would have been
allowed to depart from Libya had they chosen to do so.
Accordingly, we affirm the denial of Libya’s motion to
dismiss on grounds of sovereign immunity and we remand the
case to the district court for further proceedings.