Gates v. Syrian Arab Republic

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2010 Decided May 20, 2011

No. 08-7118

FRANCIS GATES, INDIVIDUALLY AND AS ADMINISTRATOR OF
THE ESTATE OF OLIN EUGENE "JACK" ARMSTRONG, JR., ET AL.,
APPELLEES

v.

SYRIAN ARAB REPUBLIC, ET AL.,
APPELLANTS

Consolidated with 09-7108

Appeals from the United States District Court
for the District of Columbia
(No. 1:06-cv-01500)

Ramsey Clark argued the cause for appellants. With him
on the briefs was Lawrence W. Schilling.
 2
John F. Salter Jr. argued the cause for appellees. With
him on the brief were Steven R. Perles and Edward B.
MacAllister.

Before: ROGERS and BROWN, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: This case arises from gruesome
and memorable facts. The issues presented on appeal,
however, are more mundane. The families of two American
contractors beheaded by terrorists in Iraq sued the Syrian
Arab Republic (“Syria”) in federal court. Syria did not
respond, and the district court eventually entered default
judgment in favor of the contractors’ families. Thereafter,
Syria finally appeared and filed a Rule 60(b) motion seeking
to vacate the default judgment, citing several procedural,
constitutional, and jurisdictional defects. See Fed. R. Civ. P.
60(b) (stating the “Grounds for Relief from a Final Judgment,
Order, or Proceeding.”) We find none to have merit.

I

Olin Armstrong and Jack Hensley were contractors
providing technical and operational assistance to the U.S.
military in Iraq. They were kidnapped, held hostage, and
finally, while their captors videotaped the event, viciously
slaughtered. Video of the executioner, Abu Mus’ab al-
Zarqawi, decapitating his victims was circulated on the
internet. Al-Zarqawi, and his terrorist organization, al-
Tawhid wal-Jihad (known as al-Qaeda in Iraq) claimed
responsibility for the murders. See Gates v. Syrian Arab
Republic, 580 F. Supp. 2d 53, 56, 58 (D.D.C. 2008) (citing
U.S. Dep’t of State, Office of the Coordinator for
 3
Counterterrorism, Country Reports on Terrorism 2005 220
(2006)).

The families of Hensley and Armstrong (collectively,
“the Families”) brought state law claims against Syria, Syrian
Military Intelligence, President Bashar al-Assad, and Director
of Military Intelligence Asif Shawkat, under the Foreign
Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602, et
seq.1 The Families alleged, in part, that Syria provided
material support to both Zarqawi and al-Qaeda, facilitating
the deaths of Hensley and Armstrong. Syria did not respond
or otherwise enter an appearance in court. As a result, the
Clerk of the Court entered a procedural default against Syria
and the district court subsequently held a three-day
evidentiary hearing to determine whether the Families could
establish their claims “by evidence satisfactory to the court.”
28 U.S.C. § 1608(e) (providing protections for foreign states
against procedural defaults).

The FSIA provides immunity to foreign states from the
jurisdiction of United States courts. 28 U.S.C. § 1604.
Sections 1605 through 1607 waive this immunity when, inter
alia, the foreign state provides material support for hostage
taking or is designated a state sponsor of terrorism. Id.
(“[F]oreign state[s] 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.”). Syria
has been designated a state sponsor of terrorism since 1979.

1
The Syrian Military Intelligence and the individual defendants are
considered part of the state itself under the FSIA. See 28 U.S.C.
§ 1603(a), (b); Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d
1024, 1033–34 (D.C. Cir. 2004), superseded by statute, 28 U.S.C.
§ 1605A; Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234
(D.C. Cir. 2003).
 4
When the Families initiated this suit, § 1605(a)(7) of the FSIA
created a federal “judicial forum for the compensation of
victims and the punishment of terrorist states.” Cicippio-
Puleo, 353 F.3d at 1033; see also id. at 1027 (“Section
1605(a)(7) [of the FSIA] merely waives the immunity of a
foreign state without creating a cause of action against
it . . . .”). In addition, § 1606 exempted foreign states from
liability for potential punitive damages. See 28 U.S.C.
§ 1606.

Three weeks after the evidentiary hearing, but before the
district court issued its opinion, Congress passed, and the
President signed into law, the National Defense Authorization
Act for Fiscal Year 2008 (“NDAA”), Pub. L. No. 110–181,
122 Stat. 3 (2008). Section 1083(a) of the NDAA amended
the FSIA by repealing § 1605(a)(7), and adding a new
provision, § 1605A, in its stead. Unlike its predecessor,
§ 1605A creates a federal rule of decision against foreign
states and provides for punitive damages. See Simon v.
Republic of Iraq¸ 529 F.3d 1187, 1190 (D.C. Cir. 2008), rev’d
on other grounds sub nom., Republic of Iraq v. Beaty, 129
S.Ct. 2183 (2009), (noting § 1083(a) of the NDAA also
abrogated Cicippio-Puleo, 353 F.3d 1024). In addition, new
§ 1605A may apply to “pending cases” initially brought under
§ 1605(a)(7) “on motion made” under NDAA
section 1083(c)(2). Pub. L. 110-181, § 1083(c)(2)(A), 122
Stat. at 342–43 (stating that an action brought under
§ 1605(a)(7) must “be given effect as if the action had
originally been filed under § 1605A of title 28, United States
Code.”)

In February, 2008, the Families moved to proceed under
§ 1605A, arguing their federal claim for relief was “the same
as the claim for relief previously asserted and served upon
Defendants, except for the ministerial substitution by
 5
Congress of 1605A in place of 1605(a)(7).” Gates v. Syrian
Arab Republic, 646 F. Supp. 2d 79, 89 (D.D.C. 2009)
(quoting Pls.’ motion to proceed under new statute). Syria
again failed to respond. The district court granted the
Families’ motion, holding that new service of process was not
necessary (“Conversion Order”). Order Granting Motion for
Leave to Proceed under Pub. L. 110-181, Feb. 27, 2008,
Gates v. Syrian Arab Republic, (No. 06-1500), reprinted at
J.A. 245. Then, on September 26, 2008, the district court
granted default judgment in favor of the Families, awarding
damages in excess of $400 million (“Default Judgment
Order”). Gates, 580 F. Supp. 2d at 75. In so doing, the
district court found service of process perfected against Syria
under 28 U.S.C. § 1608(a), which governs service on foreign
states. Id. at 64.

Syria appealed the district court’s Default Judgment
Order, arguing the Families did not effectuate service of
process and the district court lacked jurisdiction. Rather than
remand the case, this court placed Syria’s appeal in abeyance,
“pending the district court’s decision whether it intends to
vacate the default judgment or otherwise grant relief.” See
Dist. Ct. Docket No. 64 (citing Hoai v. Vo, 935 F.2d 308, 312
(D.C. Cir. 1991)).

Thereafter, Syria filed a motion in the district court
seeking relief from judgment under Rule 60(b). Syria asked
the district court to set aside its Default Judgment Order
because it was void, see Fed. R. Civ. P. 60(b)(4), and for other
reasons justifying relief, see Fed. R. Civ. P. 60(b)(6).
Interpreting its jurisdiction to be limited under Hoai, 935 F.2d
at 312,2 the district court denied Syria’s motion under Rule

2
In Hoai, this court noted when a Rule 60(b) motion and an appeal
are pending at the same time—as is the case here—“the District
 6
60(b)(4), but indicated it would vacate the Conversion Order
and amend its Default Judgment Order if it had jurisdiction to
do so. See Gates, 646 F. Supp. 2d at 83–84, 91 (“Rule 60(b)
Order”). Under this proposed disposition, the Families could
proceed under former § 1605(a)(7), which did not provide for
punitive damages, rather than under new § 1605A. Id. at 91.

On appeal, Syria makes a multitude of arguments. For
example, Syria argues this court lacks jurisdiction because the
FSIA conflicts with Article 2 of the U.N. Charter,
international laws, and international norms. Syria also argues
the case is a non-justiciable political question. These
arguments are specious and clearly resolved by this court’s
prior cases, including some that involved Syria and its
counsel. See Wyatt v. Syrian Arab Republic, 266 F. App’x 1
(D.C. Cir. 2008); Simon, 529 F.3d 1187. Similarly, Syria
argues the FSIA is unconstitutional because future acts of
Congress or the President may impair any final judgment in
this case in violation of separation of powers principles.
[Blue 64–73.] Precedent forecloses this argument as well.
Syria’s constitutional claim is not ripe because neither
Congress nor the President has invalidated, retroactively, a
judgment in this case. See Texas v. United States, 523 U.S.
296, 300 (1998) (“[A] claim is not ripe for adjudication if it
rests upon ‘contingent future events that may not occur as
anticipated, or indeed may not occur at all.’”) (quoting
Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568,
580–81 (1985)). In any event, the FSIA does not vest
authority in the President to review the judgments of federal

Court may consider the 60(b) motion and, if the District Court
indicates that it will grant relief, the appellant may move the
appellate court for a remand in order that relief may be granted.”
935 F.2d at 312 (citing Reuber v. United States, 750 F.2d 1039,
1051 n.16 (D.C. Cir. 1984) (as amended Jan. 23, 1985)).
 7
courts. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218
(1995).

Only two arguments require our attention. Syria argues
the district court’s Rule 60(b) Order was in error, and its
Default Judgment Order void, because Syria never received
service of process. Further, Syria contends remand is
appropriate to give the district court “opportunity to grant
further relief to Syria as the district court indicated it would
do,” i.e., vacate the Conversion Order and require the
Families to proceed under former § 1605(a)(7), rather than
new § 1605A.

II

Section 1608 of the FSIA governs service of process
“upon a foreign state.” 28 U.S.C. § 1608. That section states,
in pertinent part, that service may be made “by sending a copy
of the summons and complaint and a notice of suit, together
with a translation of each into the official language of the
foreign state, by any form of mail requiring a signed receipt,
to be addressed and dispatched by the clerk of the court to the
head of the ministry of foreign affairs of the foreign state
concerned.” Id. § 1608(a)(3).

Syria does not dispute the Families initiated service
through the clerk of the court as required by § 1608(a)(3).
Nor does Syria dispute the clerk of court addressed and
dispatched copies of the summons, complaint, notice of suit,
and translations thereof to the Syrian Ministry of Foreign
Affairs. Syria simply argues it did not receive the package
because DHL, the mail carrier employed by the clerk, did not
deliver it. [Blue 12–18.] The district court found otherwise,
and we review that finding for clear error. See Price v.
 8
Socialist People’s Libyan Arab Jamahiriya, 389 F.3d 192,
197–98 (D.C. Cir. 2004).

In determining whether Syria received service of process,
the district court relied on a letter DHL sent to the Families’
counsel, Edward Macallister. See Letter from Jay Bitsuc,
Shipment Inquiry Research Specialist, DHL Express, to
Edward MacAllister (Nov. 13, 2006), reprinted at J.A. 114.
The letter states that DHL traced the package mailed by the
clerk of court and found it “was delivered to the consignee on
October 30, 2006 at 10:27 A.M. signed for by ESAM.” Id.
DHL attached to the letter a copy of a delivery log indicating
delivery of the same Airbill completed by the clerk of court.
Id., reprinted at J.A. 115. Syria presented no contrary
evidence to the district court, choosing instead to rely upon
counsel’s contrary statement of fact. But Syria’s factual
argument—that the DHL letter is a fraud—is speculative.
Neither the lack of intermittent tracking information, nor the
four-day processing delay between Macallister’s request for
information and DHL’s letter in response, suggest the DHL
letter is a fabrication. Further, Syria’s legal argument—
asserting the district court improperly allocated the parties’
respective burdens under sovereign immunity law and
principles of fairness—is wrong. Under Rule 60(b), “the
party seeking to invoke [Rule 60(b)] bears the burden of
establishing that its prerequisites are satisfied.” McCurry ex
rel. Turner v. Adventist Health Sys./Sunbelt, Inc., 298 F.3d
586, 592 (6th Cir. 2002); see also “R” Best Produce, Inc. v.
DiSapio, 540 F.3d 115, 126 (2d Cir. 2008); In re Worldwide
Web Sys. Inc., 328 F.3d 1291, 1299 (11th Cir. 2003); United
States v. Western Elec. Co., Inc., 46 F.3d 1198, 1204 (D.C.
Cir. 1995) (describing the burden of party seeking relief under
Rule 60(b) as a “heavy” one). Moreover, because Syria is not
immune under the FSIA, no principle of sovereign immunity
law upsets the parties’ respective burdens under Rule 60(b);
 9
nor do oft cited ephemeral principles of fairness, whatever
those principles may suggest in any given context, abstract or
concrete. The district court did not clearly err in finding that
Syria received service of process under the FSIA.

III

In its Rule 60(b) Order, the district court indicated it
would grant other relief to Syria “appropriate to accomplish
justice.” Gates, 646 F. Supp. 2d at 91 (citing Klapprott v.
United States, 335 U.S. 601, 614–15 (1949)). Notably, the
district court would vacate the Conversion Order and amend
the Default Judgment Order accordingly. Id. The Families’
§ 1605A claim presented a “new claim for relief,” the district
court reasoned, and therefore required new service of process,
which the Families did not provide Syria in this case. Gates¸
646 F. Supp. 2d. at 89–91 (citing Fed. R. Civ. P. 5(a)(2)
(requiring new services of process for “a pleading that asserts
a new claim for relief . . . ”)). Syria agrees remand is
appropriate on this basis. Whether or not claims converted
under section 1083 of the NDAA are “new claims” requiring
new service of process is a question of law we review de
novo. See Price, 389 F.3d at 197.

The plain language of the NDAA indicates a claim
converted under section 1083(c)(2) is not a “new claim for
relief.” The relevant text states:

With respect to any action that: . . . was brought under
section 1605(a)(7) . . . before the date of the enactment
of [§ 1605A], . . . and . . . is before the courts in any
form, including on appeal or motion under Rule 60(b)
of the Federal Rules of Civil Procedure, that action,
and any judgment in the action shall, on motion made
by plaintiffs to the United States district court where
 10
the action was initially brought, or judgment in the
action was initially entered, be given effect as if the
action had originally been filed under section
1605(a)(7) of title 28, United States Code.

Pub. Law 110-181, § 1083(c)(2)(A), 122 Stat. at 342–43.
First, new claims must be asserted in pleadings. See Fed. R.
Civ. P. 8(a). But section 1083 allows for conversion “on
motion made.” A motion is not a pleading. Indeed, Rule 7(b)
describes a “motion” as “a request for an order” and Rule 7(a)
does not include a “motion” in its list of documents
considered “pleadings.” See Fed. R. Civ. P. 7(a) (listing
documents considered pleadings). Second, the statute
requires a converted action to “be given effect as if the action
had originally been filed under § 1605(a)(7).” NDAA
§ 1083(c)(2)(A). Treating a converted action as a new claim
would undermine this statutory language because it would
treat the claim as if it were originally filed under § 1605A, not
§ 1605(a)(7). Third, section 1083 allows for conversion “on
appeal.” But pleadings cannot be amended on appeal. See
Fed. R. Civ. P. 15(a). Thus, the statutory language suggests
the converted claim is not a “new claim” requiring an
amended pleading. Finally, § 1605A changes the applicable
rule of decision, it does not create a new cause of action.
Section 1605A provides for a federal cause of action, whereas
§ 1605(a)(7) relied upon state law claims. Both sound in tort,
however. And both claims arise from the same underlying
acts of terrorism. It is therefore the applicable rule of decision
that is new when an action is converted under section 1083,
not the claim itself.

The district court did not address the text of the NDAA,
because it assumed the Families’ § 1605A claim “should have
been served on Syria” even if the Families otherwise met the
statutory requirements to convert their claim. Gates, 646 F.
 11
Supp. 2d at 90 (Rule 60(b) Order). But see Conversion Order
(granting the Families motion to convert under section 1083
of the NDAA and noting further service of process “is not
required”). In so doing, the district court relied upon Rule
5(a)(2), which requires that “a new claim for relief must be
served.” Gates, 646 F. Supp. 2d at 91. But this analysis
misses the point. The FSIA provides special rules for service
of process on foreign states and therefore the applicability of
Rule 5(a)(2) in this context is dubious. See Edmond v. U.S.¸
520 U.S. 651, 657 (1997) (“Ordinarily, where a specific
provision conflicts with a general one, the specific governs.”).
In any event, Rule 5(a)(2) applies to “a pleading” and not to a
“motion made,” as prescribed by section 1083 of the NDAA.

IV

The Families adequately effected service of process
against Syria when they first filed suit under former
§ 1605(a)(7) of the FSIA. Before the district court entered
judgment, the Families moved to convert their action and
proceed under new § 1605A in accordance with section 1083
of the NDAA. Under section 1083 of the NDAA, the
Families did not have to serve Syria anew, because the
statutory text does not treat converted claims as new claims
for relief. In addition, Rule 5(a)(2) does not apply in this
case, given the FSIA’s specific statutory service of process
provision. As a result, there is no need to remand this case for
the district court to grant Syria other relief. The judgment of
the district court denying Syria’s motion under Rule 60(b)(4)
is

Affirmed.