Simon v. Republic of Iraq

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 2007 Decided June 24, 2008

No. 06-7175

ROBERT SIMON, ET AL.,
APPELLANTS

v.

REPUBLIC OF IRAQ, ET AL.,
APPELLEES

Consolidated with
06-7178

Appeals from the United States District Court
for the District of Columbia
(No. 03cv00691)
(No. 03cv00888)

Michael Rips argued the cause for appellants. With him on
the briefs were Stephen A. Fennell, Anthony F. Cavanaugh,
Anthony A. Onorato, Justin B. Perri, and Alice Loughran.

Eric J. Hecker, Richard D. Emery, and Sarah Netburn were
on the brief for amici curiae Ethel Hurst, et al. in support of
appellants.
 2

Lawrence H. Martin argued the cause for appellees. With
him on the briefs were Gare A. Smith, Sarah A. Altschuller,
Timothy B. Mills, and Jonathan S. Franklin.

Before: SENTELLE, Chief Judge, and GINSBURG and
BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: The plaintiffs in these two
consolidated actions sued Iraq, the Iraqi Intelligence Service,
and Saddam Hussein (together, Iraq) alleging they had tortured
and taken certain of them hostage during the 1990-91 Gulf War.
The plaintiffs relied upon 28 U.S.C. § 1605(a)(7), the exception
in the Foreign Sovereign Immunities Act (FSIA), § 1602 et seq.,
that allowed for lawsuits against state sponsors of terrorism.
The district court dismissed the actions as untimely and the
plaintiffs appealed. Iraq defends the district court’s
interpretation of the time limitation in the FSIA and alternatively
invokes the political question doctrine.

After this appeal was briefed and argued, the Congress
passed the National Defense Authorization Act for Fiscal Year
2008 (NDAA), Pub. L. No. 110-181, 122 Stat. 3, § 1083 of
which revised the terrorism exception to sovereign immunity by
repealing § 1605(a)(7) of Title 28 and adding a new exception
to be codified at § 1605A of Title 28. Section 1083(d) of the
NDAA granted the President the authority to waive § 1083 with
respect to Iraq, which he promptly did.

For the reasons that follow, we conclude the plaintiffs may
maintain these suits pursuant to § 1605(a)(7), and their cases are
timely and justiciable. Accordingly, we remand these matters to
the district court for further proceedings.
 3

I. Background

In 1996 the Congress amended the FSIA to abrogate in
certain respects the sovereign immunity of any foreign state the
Secretary of State designates a sponsor of terrorism.
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, § 221, 110 Stat. 1214, 1241-43 (codified at 28
U.S.C. § 1605(a)(7)); see also 28 U.S.C. § 1604 (granting
immunity to foreign states, their agencies, and their
instrumentalities). As amended, § 1605(a)(7) provided in part
that a foreign state was not immune from an action for damages
“for personal injury ... caused by an act of torture ... [or] hostage
taking” to a U.S. national if the foreign state had been
“designated as a state sponsor of terrorism ... at the time the act
occurred” and the plaintiff had given the foreign state “a
reasonable opportunity to arbitrate the claim.” The statute
defined torture and hostage taking, see §§ 1605(e), 1350 note, by
reference to the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment art. 1(1), Dec.
10, 1984, 1465 U.N.T.S. 85, and the International Convention
Against the Taking of Hostages art. 1, Dec. 17, 1979, T.I.A.S.
No. 11081, 1316 U.N.T.S. 205.

The plaintiffs filed their actions in 2003 and duly invoked
§ 1605(a)(7). Their amended complaints alleged that in 1990
and 1991 the defendants had tortured certain of the plaintiffs and
held them hostage, in violation of local, federal, and
international law; the other plaintiffs, members of the alleged
victims’ families, sued for intentional infliction of emotional
distress. Iraq was at all relevant times a designated state sponsor
of terrorism, 55 Fed. Reg. 37,793 (Sept. 13, 1990), and the
complaints alleged the plaintiffs had offered Iraq the opportunity
to arbitrate the disputes.
 4

Iraq and the Iraqi Intelligence Service filed motions to
dismiss both cases on the grounds that the actions were untimely
under § 1605(f), which provides a limitation period of ten years
for any action under § 1605(a)(7); the plaintiffs had failed to
state a claim upon which relief could be granted; and the
political question doctrine barred the court from proceeding.
The district court held the two actions did not raise political
questions but dismissed them as untimely. Vine v. Republic of
Iraq, 459 F. Supp. 2d 10 (2006).

II. Analysis

On appeal, Iraq newly contends the recent enactment of the
NDAA and the President’s waiver of § 1083 thereof require the
dismissal of these cases. Alternatively, Iraq argues the cases
were untimely filed and are barred by the political question
doctrine. Addressing the issues of law de novo, we reject each
of Iraq’s contentions.

A. NDAA 2008

On December 14, 2007 the Congress passed the first version
of the NDAA, § 1083 of which would have amended the
terrorism exception to foreign sovereign immunity by striking
28 U.S.C. § 1605(a)(7), the exception upon which the plaintiffs
relied, and enacting a new exception, to be codified at 28 U.S.C.
§ 1605A. President Bush sought to “pocket veto” the bill
because he believed § 1083 would threaten the reconstruction of
Iraq:

[S]ection 1083 would risk the freezing of substantial Iraqi
assets in the United States .... Section 1083 also would
expose Iraq to new liability of at least several billion dollars
by undoing judgments favorable to Iraq, by foreclosing
available defenses on which Iraq is relying in pending
 5

litigation, and by creating a new Federal cause of action
backed by the prospect of punitive damages to support
claims that may previously have been foreclosed.

Memorandum of Disapproval, 43 WEEKLY COMP. PRES. DOC.
1641, 1641 (Dec. 28, 2007).

The Congress subsequently passed a revised version of the
NDAA, which included a new provision (§ 1083(d)) that
authorized the President, upon making certain findings, to
“waive any provision of [§ 1083 of the NDAA] with respect to
Iraq.” The President signed that bill into law and promptly
exercised his authority under § 1083(d)(1) to waive “all
provisions of section 1083 with respect to Iraq, and all agencies
and instrumentalities thereof.” Presidential Determination No.
2008-9, 73 Fed. Reg. 6571 (Jan. 28, 2008).* Iraq contends the
enactment of the NDAA and the President’s waiver of § 1083
with respect to Iraq stripped the federal courts of jurisdiction
over these cases; the plaintiffs disagree, of course.

Section 1083(a) of the NDAA, which amended the FSIA by
creating new § 1605A of Title 28, contains an exception to the
grant of sovereign immunity similar to that in former
§ 1605(a)(7) but more advantageous to plaintiffs in several
respects. For instance, it precludes a foreign state from filing an
interlocutory appeal under the “collateral order” doctrine,

*
The President had to and did find that “waiver is in the
national security interest of the United States” and “will promote
the reconstruction of, the consolidation of democracy in, and the
relations of the United States with, Iraq,” and that “Iraq
continues to be a reliable ally of the United States and partner in
combating acts of international terrorism.” NDAA § 1083(d)(1);
see 73 Fed. Reg. at 6571 (so finding).
 6

§ 1605A(f), and permits a plaintiff to attach property in advance
of judgment, § 1605A(g). In addition, § 1605A(c) abrogates
Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C.
Cir. 2004), by creating a federal right of action against foreign
states, for which punitive damages may be awarded.

Iraq argues that because § 1083(b)(1) of the NDAA repeals
§ 1605(a)(7) of the FSIA, upon which the present cases were
founded, we must dismiss these cases for want of jurisdiction.
See 28 U.S.C. §§ 1330(a), 1604 (jurisdiction over case against
foreign sovereign depends upon exception to immunity).
Further, according to Iraq, the President’s waiver of § 1083 of
the NDAA prevents the plaintiffs from refiling their cases under
the jurisdiction conferred by new § 1605A.

A statute removing federal jurisdiction presumptively
applies to pending cases because such a statute “usually ‘takes
away no substantive right but simply changes the tribunal that
is to hear the case.’” Hamdan v. Rumsfeld, 126 S. Ct. 2749,
2765 (2006) (quoting Hallowell v. Commons, 239 U.S. 506, 508
(1916)); see also Hughes Aircraft Co. v. United States ex rel.
Schumer, 520 U.S. 939, 951 (1997). In contrast, a statute that
retroactively alters the consequences of primary conduct -- as by
“impair[ing] rights a party possessed when he acted, increas[ing]
a party’s liability for past conduct, or impos[ing] new duties
with respect to transactions already completed,” Landgraf v. USI
Film Prods., 511 U.S. 244, 280 (1994) -- is presumptively non-
retroactive; such a statute applies to a pending case only if the
Congress clearly so provides.

The FSIA speaks to the jurisdiction of the federal courts,
but it also governs the immunity of foreign states in any U.S.
forum. See 28 U.S.C. § 1604 (“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
 7

chapter”); cf. Hughes Aircraft Co., 520 U.S. at 951 (“statutes
affect[ing] ... whether [a suit] may be brought at all ... speak[]
not just to the power of a particular court but to the substantive
rights of the parties as well” and are therefore “subject to [the]
presumption against retroactivity”). Accordingly, it is not clear
which presumption might apply, if any is needed. In this case,
however, it is unnecessary to invoke either presumption because
§ 1083 makes several references to pending cases and we need
not look beyond the text and structure of the NDAA to ascertain
its effect upon cases brought under § 1605(a)(7). Accord
Hamdan, 126 S. Ct. at 2762-69 (holding, based upon “[o]rdinary
principles of statutory construction,” the provision of the
Detainee Treatment Act of 2005, Pub. L. No. 109-148, Title X,
119 Stat. 2680, 2739-44, that deprived the courts of jurisdiction
over habeas petitions filed by persons detained at Guantánamo
Bay did not apply to habeas cases pending when it was enacted).
For the reasons that follow, we conclude that the courts retained
jurisdiction over cases pending pursuant to former § 1605(a)(7)
when the Congress enacted the NDAA. Cf. Republic of Austria
v. Altmann, 541 U.S. 677, 697-700 (2004) (applying ordinary
principles of construction to decide whether FSIA, which
codified immunity of foreign sovereigns, applies to conduct
predating statute).

We note first that the new terrorism exception in § 1605A
by its terms does not provide a substitute basis for jurisdiction
over all cases pending under § 1605(a)(7) when § 1605A
replaced it. The new provision deprives a foreign sovereign of
immunity to suit only if

(I) the foreign state was designated as a state sponsor of
terrorism at the time the act [giving rise to the suit]
occurred, or was so designated as a result of such act, and,
subject to subclause (II), either remains so designated when
the claim is filed under this section or was so designated
 8

within the 6-month period before the claim is filed under
this section; or

(II) in the case of an action that is refiled under this section
by reason of section 1083(c)(2)(A) of the [NDAA for] 2008
or is filed under this section by reason of section 1083(c)(3)
of that Act, the foreign state was designated as a state
sponsor of terrorism when the original action or the related
action under section 1605(a)(7) (as in effect before the
enactment of this section) ... was filed.

28 U.S.C. § 1605A(a)(2)(A)(i). Inasmuch as this provision
expressly distinguishes between cases “filed under this section”
-- i.e., § 1605A -- and cases “filed under section 1605(a)(7)” of
the pre-amendment Act, a pending case obviously cannot be said
to have been “filed under” the new provision. Therefore, the
plaintiff in a case pending under § 1605(a)(7) may not maintain
that action based upon the jurisdiction conferred by § 1605A; in
order to claim the benefits of § 1605A, the plaintiff must file a
new action under that new provision.

Because the courts have no jurisdiction of a case against a
foreign sovereign absent an exception to the grant of immunity
in the FSIA, and because § 1605A does not provide that
exception for pending cases, Iraq contends the NDAA requires
the dismissal of these cases. The plaintiffs, on the other hand,
argue that § 1605(a)(7) remains a viable exception to immunity
for cases, such as these, filed when it was the source of our
jurisdiction. Based upon the following analysis of NDAA
§§ 1083(c) (“Application to Pending Cases”) and 1083(d)
(“Applicability to Iraq”), we hold the courts retain jurisdiction
pursuant to § 1605(a)(7) over cases that were pending under that
section when the Congress enacted the NDAA.
 9

Section 1083(c)(1). The first subsection of § 1083(c)
provides: “The amendments made by this section [1083] shall
apply to any claim arising under section 1605A.” Because, as
we have said, a claim pending under former § 1605(a)(7) when
the NDAA became law did not “aris[e] under section 1605A,”
cf. Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257,
260 (1916) (“A suit arises under the law that creates the cause
of action”), it is apparent that the 2008 amendments, including
the “conforming amendments” that strike former § 1605(a)(7),
see NDAA § 1083(b), do not apply to any claim then “pending”
under that provision. Moreover, reading the Act to extinguish
jurisdiction over cases pending under § 1605(a)(7) when the
NDAA became law would render § 1083(c)(1) nugatory: There
would be no need to specify “the amendments ... apply to any
claim arising under section 1605A” for the amendments
obviously would apply to any such claim and could apply to no
other claim; as we interpret it, however, § 1083(c)(1) makes
clear the “amendments” apply to any claim under § 1605A, but
to no “pending” claims.*

Sections 1083(c)(2) and (c)(3). Plaintiffs with “pending
cases” may invoke new § 1605A in certain circumstances.
Pursuant to § 1083(c)(2) (“Prior Actions”), a plaintiff who
detrimentally “relied upon” former § 1605(a)(7) of the FSIA “as
creating a cause of action” and whose action was “pending
before the courts in any form” when the NDAA became law was
given 60 days within which to “refile” his suit based upon the
new cause of action created by § 1605A(c). See also 28 U.S.C.
§ 1605A(a)(2)(A)(i)(II) (providing exception to immunity for

*
In consequence, only a plaintiff prosecuting an action
under new § 1605A of the FSIA can claim the benefits of that
section, such as prejudgment attachment of the defendant’s
property.
 10

“original action” that is “refiled ... by reason of section
1083(c)(2)(A)”). Section 1083(c)(3) of the NDAA (“Related
Actions”) authorizes a plaintiff who had “timely commenced”
a “related action” under § 1605(a)(7) to bring “any other action
arising out of the same act or incident,” provided “the [new]
action is commenced” within 60 days from the later of “(A) the
date of the entry of judgment in the original action or (B) the
date of the enactment of [the NDAA].”

These “transition rules,” as Iraq calls them, cannot be
squared with Iraq’s position that the NDAA requires the
dismissal of pending cases. The 60-day limit in § 1083(c)(3)
implies a court could, after enactment of the NDAA, still enter
judgment in an action filed under § 1605(a)(7). Iraq argues that
in this context “entry of judgment” means only dismissal for
want of jurisdiction rather than the entry of a judgment on the
merits, but nothing in the text of § 1083 suggests the phrase has
such a narrow meaning, cf. BLACK’S LAW DICTIONARY (8th ed.
2004) (defining “judgment” to mean judgment on the merits),
and the structure of the NDAA indicates precisely the opposite.
New § 1605A(a)(2)(A)(i)(II) of the FSIA refers to a pending
“original action” being “refiled ... by reason of section
1083(c)(2)(A)” of the NDAA while referring to a new action
being “filed ... by reason of section 1083(c)(3)” if a pending
“related action” had been timely commenced, see 28 U.S.C.
§ 1605A(b), which implies the Congress understood that the
courts would retain jurisdiction over the original “related action”
described in § 1083(c)(3). That explains why the 60-day period
for invoking § 1083(c)(2) began with the enactment of the
NDAA, see § 1083(c)(2)(C)(ii), whereas the 60-day period in
§ 1083(c)(3) may run from “the date of the entry of judgment”
in the “related action,” which could be well after the enactment
of the NDAA.
 11

There would be no reason for the Congress to have tied the
60-day period in § 1083(c)(3) to the date of “entry of judgment”
in a case pending under § 1605(a)(7) when the NDAA became
law if, as Iraq argues, the quoted words mean only a dismissal
for want of jurisdiction and the Act requires the dismissal of all
pending cases. The text and structure of the NDAA thus compel
the conclusion that, notwithstanding the enactment of the
NDAA, a court still may enter a judgment on the merits in such
a case, which it could not do if it did not have jurisdiction over
the case. See, e.g., Ex parte McCardle, 74 U.S. (7 Wall.) 506,
514 (1868) (“Jurisdiction is power to declare the law, and when
it ceases to exist, the only function remaining to the court is that
of announcing the fact and dismissing the cause”). Because new
§ 1605A is inapplicable, that jurisdiction over pending cases can
be founded only upon former § 1605(a)(7).*

Section 1083(c)(4). The final provision of § 1083(c) also is
instructive. In 2003 the President acted under the Emergency
Wartime Supplemental Appropriations Act of 2003 (EWSAA),
Pub. L. No. 108-11, § 1503, 117 Stat. 559, 579, to “make
inapplicable with respect to Iraq ... any ... provision of law that
applies to countries that have supported terrorism.” Presidential
Determination No. 2003-23, 68 Fed. Reg. 26,459 (May 7, 2003).

*
Iraq argues also that the 60-day rule authorizes the
refiling of claims under § 1605A within 60 days following the
date of entry of “judgment on claims involving non-sovereign
parties or a different exception to sovereign immunity
unaffected by Section 1083.” That is clearly wrong. The 60-day
period is tied to “the date of the entry of judgment in [an]
original action” that was “timely commenced under section
1605(a)(7),” NDAA § 1083(c)(3); § 1605(a)(7) permits suits
only against sovereign states, leaving no room for a case brought
under “a different exception to sovereign immunity.”
 12

In Acree v. Republic of Iraq, 370 F.3d 41 (2004), however, we
held that the EWSAA did not authorize the President to suspend
former § 1605(a)(7) with respect to Iraq. Paragraph (4)
(“Preserving the Jurisdiction of the Courts”) of subsection
1083(c) (“Application to Pending Cases”) ratifies that holding:
“Nothing in section 1503 of the [EWSAA] ... has ever
authorized” the President to “mak[e] inapplicable ... any
provision of [the FSIA or to] remov[e] ... the jurisdiction” of the
federal courts. Thus both the text and the context of this
provision make clear the Congress was intent upon “preserving”
the courts’ jurisdiction over “pending cases,” which could only
mean cases filed under former § 1605(a)(7).

Section 1083(d)(1). This section authorizes the President to
“waive any provision of ... section [1083 of the NDAA] with
respect to Iraq.” If a suit against Iraq for terrorist acts could
proceed only under § 1605A, as Iraq maintains, then the
President could use § 1083(d)(1) to deprive the courts of
jurisdiction and would have no reason ever to invoke the
EWSAA; § 1083(c)(4) would be surplusage. Cf. Duncan v.
Walker, 533 U.S. 167, 174 (2001) (we must “give effect ... to
every clause and word of [the] statute”).* Moreover,
§ 1083(d)(2)(C), which provides that the President’s waiver
authority applies “regardless of whether ... that authority affects
any action filed before ... enactment of the [NDAA],” would be
unnecessary if the Act deprived the courts of jurisdiction over
pending cases.

*
Iraq has not been designated a state sponsor of
terrorism since 2004. 69 Fed. Reg. 61,702 (Oct. 20, 2004).
Accordingly, even absent the President’s waiver, no new action
could have been filed against Iraq unless a prior or a related
action was pending. See 28 U.S.C. § 1605A(a)(2)(A)(i).
 13

Reading the NDAA, as we do, to leave intact jurisdiction
over cases pending under former § 1605(a)(7) gives meaning
both to § 1083(c)(4) and to § 1083(d) and makes sense of the
relation between them. Section 1083(c)(4) clarifies that the
President has no authority under the EWSAA to limit the
jurisdiction of the courts over cases against Iraq. Section
1083(d)(1) then grants the President the authority to render
inapplicable those provisions of the NDAA to which President
Bush had objected when he vetoed the first version of the
NDAA.*

* * *

Cognizant of the President’s concerns and of the potential
implications of our holding upon the foreign affairs of the
United States, we do not lightly conclude the NDAA leaves
intact our jurisdiction over cases, such as these, that were
pending against Iraq when the Congress enacted the NDAA.
Nonetheless, the NDAA fairly compels the conclusion that the
plaintiffs may proceed on the basis of former § 1605(a)(7). It
follows that the President’s waiver of § 1083 of the NDAA with
respect to Iraq affects neither the jurisdiction of the district court
over cases pending under § 1605(a)(7) nor the issues presented
on this appeal.**

*
The President raised the same concerns when he
exercised his waiver authority. 73 Fed. Reg. 6571 (discussing
same non-jurisdictional implications).
**
We have no occasion, therefore, to address the
plaintiffs’ alternative argument that the President left
§ 1605(a)(7) intact by waiving “all” provisions of § 1083
including subsection (b)(1)(A)(iii), which repeals former
§ 1605(a)(7).
 14

B. Timeliness

The jurisdictional provision upon which the plaintiffs rely
contains a limitation period:

No action shall be maintained under [§ 1605(a)(7)] unless
the action is commenced not later than 10 years after the
date on which the cause of action arose. All principles of
equitable tolling, including the period during which the
foreign state was immune from suit, shall apply in
calculating this limitation period.

28 U.S.C. § 1605(f) (2007). The plaintiffs contend their actions,
which they filed in 2003, are timely even though the alleged
torts occurred more than ten years earlier, in 1990 and 1991.
They argue first that their causes of action did not arise, and the
ten-year limitation therefore did not begin to run, until 1996,
because they could not have sued Iraq before then. They
contend alternatively that the ten-year limitation period was
equitably tolled until 1996; more precisely, they argue § 1605(f)
requires that we extend the period of limitation by “the period
during which [Iraq] was immune from suit.” We agree with
their alternative argument and, accordingly, need not reach the
(rather strained) argument that their claims did not arise until
1996.

Section 1605(f) expressly incorporates “principles of
equitable tolling.” Iraq argues -- and we do not disagree -- the
statute thereby incorporates the relevant common law.
According to Iraq that means the plaintiffs are entitled only to a
“reasonable” extension of the statute of limitations, Phillips v.
Heine, 984 F.2d 489 (D.C. Cir. 1993); the suits would then be
untimely -- assuming, as we do for the sake of the argument, the
plaintiffs’ causes of action arose in 1990 and 1991 -- because the
plaintiffs have not demonstrated they reasonably required an
 15

extension to 2003, two or three years beyond the expiration of
the statute of limitations, in order to bring their cases.

It seems, however, we have not applied the doctrine of
equitable tolling consistently in the manner Iraq suggests. In
Phillips, upon which Iraq relies, we held that “tolling does not
bring about an automatic extension of the statute of limitations
by the length of the tolling period. ... It gives the plaintiff extra
time only if he needs it,” 984 F.2d at 492; that is, the plaintiff
obtains a “reasonable” extension. In United States v. Saro, 252
F.3d 449 (2001), in contrast, we held that equitable tolling stops
the clock for the duration of a tolling event. Id. at 454 (citing
United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (dictum)); see
Calvin W. Corman, Limitation of Actions § 8.2 (1991) (“When
the commencement of an action is stayed due to statutory
prohibition, the period of the stay is not included in the
calculation of the limitation period”); cf. Burnett v. N.Y. Cent.
R.R. Co., 380 U.S. 424, 434-35 (1965) (equitable tolling, rather
than giving plaintiff a “reasonable” extension of statute of
limitations in FELA, stops clock for duration of tolling event).

Saro and Phillips undoubtedly conflict, and our subsequent
cases do not resolve the conflict. In Chung v. DOJ, upon
holding the distinct doctrine of equitable estoppel (which is
based upon the conduct of the defendant) did not extend the
statute of limitations on the facts of that case, we left it to the
district court on remand to decide, à la Phillips, whether the
plaintiff was entitled to a “reasonable” extension of the statute
of limitations under the doctrine of equitable tolling. 333 F.3d
273, 278-80 (2003). We did not notice the conflict between
Saro and Phillips. We now see not only the intra-circuit but also
an inter-circuit inconsistency. Compare Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 452 (7th Cir. 1991) (tolling
provides a reasonable extension), with Socop-Gonzalez v. INS,
 16

272 F.3d 1176, 1193-96 (9th Cir. 2001) (en banc) (tolling stops
the clock).

We need not resolve our home-grown conflict in this case
because the statute is clear: We “include,” i.e., add, “the period
during which [Iraq] was immune from suit”; hence cases filed in
2003 are timely.* Iraq asserts that, because we narrowly
interpret the waiver of immunity by a sovereign state, see, e.g.,
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 94 (1990)
(waiver by the United States); World Wide Minerals, Ltd. v.
Republic of Kazakhstan, 296 F.3d 1154, 1162 (D.C. Cir. 2002)
(waiver by foreign state), we ought strictly to interpret § 1605(f)
and limit Iraq’s exposure by following Phillips. Cases on the
scope of a waiver with its consequences for the fisc are
inapposite, however, for the Congress did not waive Iraq’s
sovereign immunity in enacting § 1605(a)(7); only the sovereign
can forswear the sovereign’s legal rights. In the terrorism
exception the Congress qualified the statutory grant of immunity
to Iraq, itself a matter of “grace and comity.” Verlinden B.V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983). Iraq has
pointed to no authority suggesting the Congress intended courts
to read § 1605(f) any more narrowly than its terms suggest; nor
are we aware of any case in which a court presumed or
suggested exceptions to foreign sovereign immunity should be
construed narrowly. Cf. Saudi Arabia v. Nelson, 507 U.S. 349,
356-58 (1993) (using ordinary methods of construction to
interpret exception in § 1605(a)(2)).

*
Nor need we decide whether the statute would call for
the application of state rather than federal common law,
whatever the latter may be, with regard to equitable tolling. Erie
R.R. Co. v. Tompkins, 304 U.S. 64 (1938); 28 U.S.C. § 1652; see
also United States v. Yazell, 382 U.S. 341 (1966) (applying state
law in interstices of federal statute).
 17

We are therefore left to interpret the plain text of § 1605(f)
unencumbered by any special canons of construction, and the
text makes clear Iraq’s interpretation must fail. Section 1605(f)
invokes the “principles of equitable tolling” and expressly
requires that in “calculating [the ten-year] limitation period” we
“includ[e] the period during which [Iraq] was immune from
suit.” To say the plaintiffs were entitled only to a reasonable
term after the ten-year period ran out in 2000 or 2001 would not
fulfill the mandate that we “includ[e]” the five or six years of
Iraq’s immunity in the calculation of the limitations period.
Thus, to read the statute as Iraq insists would deprive the quoted
phrases of their plain meaning.

The Congress first amended the FSIA to add a terrorism
exception in 1996, before which Iraq was “immune from suit”;
hence the limitation period in § 1605(f) began to run in 1996 and
expired in 2006. Accordingly, the plaintiffs timely filed their
actions in 2003.

C. Political Question Doctrine

Iraq asserts that the present cases are barred by the political
question doctrine, for which proposition it points to several of
the President’s statements suggesting this action is contrary to
the foreign policy of the United States.* We have already noted

*
Iraq’s principal argument does not assume the
President’s statements have the force of law. Iraq’s alternative
argument is that certain of those statements do have the force of
law because the President was acting under the EWSAA. Our
decision in Acree, of course, renders the latter argument beyond
the reach of the panel and Iraq makes it only to preserve it for
rehearing by the court en banc. For the same reason, we do not
address Iraq’s further argument that the President has waived
 18

and quoted Presidential Determination 2003-23 under the
EWSAA. 68 Fed. Reg. 26,459. The President also issued
Executive Order 13,303 declaring that “the threat of attachment
or other judicial process” against Iraqi oil interests “obstructs the
orderly reconstruction of Iraq,” 68 Fed. Reg. 31,931 (May 22,
2003), and sent a message to the Congress stating that he had
used his authority under the EWSAA to make § 1605(a)(7)
inapplicable to Iraq because the “threat of attachment or other
judicial process” against Iraqi oil assets “constituted an unusual
and extraordinary threat to the national security and foreign
policy of the United States.” 39 WEEKLY COMP. PRES. DOC.
647, 647-48 (May 22, 2003).

In addition, Iraq points to an unenacted version of the
Foreign Relations Authorization Act of 2004, see S. 925, 108th
Cong. § 811 (2003), asserting that the Congress “voiced its
support for the President’s determination” that suits such as
these are contrary to the foreign policy of the United States. The
Senate Foreign Relations Committee approved that bill, but the
Committee does not speak for the Congress, which last spoke to
this subject when it enacted the NDAA. Therefore, we confine
our analysis to the President’s position that the threat of a
monetary judgment against Iraq contravenes the foreign policy
of the United States.

The federal courts may not pass upon a question the
Constitution commits to the political branches. See Baker v.
Carr, 369 U.S. 186, 217 (1962); see also id. at 211-13. In
Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2005), for
instance, foreign plaintiffs alleged that Japanese soldiers had
subjected them to torture and sexual slavery in violation of

§ 1083(c)(4) of the NDAA with respect to Iraq; even if the
statute were waived, the panel would still be bound by Acree.
 19

international law. Japan and the plaintiffs debated whether the
treaties between Japan and the countries from which the
plaintiffs came extinguished their claims. We held the political
branches alone could resolve that dispute because it “concerns
the United States only with respect to her foreign relations.” Id.
at 51-52.

To be sure, the foreign policy considerations Iraq raises are
important, as the President’s actions and statements make clear.
But Iraq has not explained how adjudicating the question
whether Iraq committed acts of torture and hostage taking in
1990-91 requires the court to address any question the
Constitution commits to the political branches. Indeed, Iraq
does nothing more than assert that this action may affect the
foreign relations of the United States, but that is surely not
enough. Baker, 369 U.S. at 211 (“[I]t is error to suppose that
every case or controversy which touches foreign relations lies
beyond judicial cognizance”). The political question doctrine
does not call upon us to decide whether a lawsuit that raises only
justiciable questions contravenes the foreign policy of the
United States; if the political branches decide tort suits against
a foreign sovereign are contrary to the foreign policy of the
Nation, then they may by law remove them from our
jurisdiction.

Nor has Iraq explained how the President, by making
general statements or taking actions not specific to these cases,
can set to naught a duly enacted jurisdictional statute.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634,
637-38 (1952) (Jackson, J., concurring) (“When the President
takes measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb, for then he can rely
only upon his own constitutional powers minus any
constitutional powers of Congress over the matter. Courts can
sustain exclusive Presidential control in such a case only by
 20

disabling the Congress from acting upon the subject.”); see also
Altmann, 541 U.S. at 702 (noting the FSIA “might well” require
a court to defer to a statement of interest filed by the Department
of State in a particular case). The Congress has given the courts
of the United States the jurisdiction to decide the legal issues
and factual questions raised by the plaintiffs’ allegations, which
sound in tort; accordingly the courts have the duty to proceed to
the extent the actions are justiciable. See Cohens v. Virginia, 19
U.S. (6 Wheat.) 264, 404 (1821) (“It is most true, that this court
will not take jurisdiction if it should not: but it is equally true,
that it must take jurisdiction, if it should”). The present actions
undoubtedly present questions fit for judicial determination
under Article III -- to wit, whether in 1990-91 Iraq committed
the torts alleged -- regardless whether their resolution might
affect the foreign relations of the Nation.

III. Conclusion

In sum, we hold that neither § 1083 of the NDAA nor the
President’s waiver under § 1083(d) thereof deprives the courts
of jurisdiction over these cases, which were pending under
§ 1605(a)(7) when the NDAA went into effect. Because the
instant actions were timely filed and justiciable, we reverse the
judgment of the district court and remand these cases to the
district court for further proceedings consistent herewith.

So ordered.