IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAVID M. ROEDER, et al.,
THE ISLAMIC REPUBLIC
OF IRAN, et al.,
) Civil Action No.
) 00-3110 (EGS)
UNITED STATES' SURREPLY MEMORANDUM IN RESPONSE
TO THE COURT'S ORDER OF NOVEMBER 30, 2001
The United States respectfully submits this surreply memorandum in accordance with the Court's Order of November 30, 2001, which directs the parties to address four issues: (1) the impact of H.R. 2500, 107th Cong., 1st Sess., � 626(c) (2001), on the Court's subject matter jurisdiction with respect to plaintiffs' claims; (2) the legislative history of � 626(c); (3) whether the Flatow Amendment supplies a cause of action for suits against a foreign state, or only against "official[s], employee[s], or agent[s]" of a foreign state; and (4) whether either the Flatow Amendment, or � 626(c), can abrogate the Algiers Accords and their implementing regulations' prohibition on litigation, in light of the Supreme Court's holdings in Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) and Weinberger v. Rossi, 456 U.S. 25, 32 (1982). For clarity of analysis, this memorandum will first respond to the Court's inquiry about the legislative history of � 626(c), and then address the remaining issues the Court has identified.
I. THE LEGISLATIVE HISTORY OF � 626(C)
Section 626(c) provides, in full, as follows:
Amend 28 U.S.C. Section 1605(a)(7)(A) by inserting at the end, and before the semicolon, the following: "or the act is related to Case Number 1:00CV03110 (ESG) [sic] in the United States District Court for the District of Columbia."
The effect of this legislation is to include the acts underlying the claims in this case among those for which foreign sovereign immunity is removed by 28 U.S.C. � 1605(a)(7). By operation of 28 U.S.C. � 1330(a), � 626(c) now brings plaintiffs' claims within the subject matter jurisdiction of the Court.
The Conference Committee report accompanying H.R. 2500 explains that, as passed by the House of Representatives, H.R. 2500 "did not contain a provision on this matter." H.R. Rep. No. 278, 107th Cong., 1st Sess. 170 (2001) ("Conference Report") (Pl. Surreply, Exh. 1). Instead, � 626 was included in the "conference agreement . . . modified from language proposed as section 629 in the Senate Bill." Id. Section 629 of the Senate bill would have made plaintiffs eligible for payment of any judgment awarded in this case under the Victims of Trafficking and Violence Protection Act of 2000, but it contained no provision amending the Foreign Sovereign Immunities Act to provide for subject matter jurisdiction in this case. See Gov't Exh 39 (attached hereto); Gov't Intervention Mem. at 9, citing Clodfelter Decl., �� 2-3 (Gov't Exh. 5).
In short, � 626(c) first emerged in conference, after the House and Senate had both passed their respective versions of H.R. 2500. Prior to that time, it was never the subject of hearings and never debated on the floor of either House of Congress, so far as the government has discerned. After the Conference Committee agreement was reported on November 9, 2001, H.R. 2500 passed the House and Senate, also without any debate of � 626(c). See 147 Cong. Rec.H8144-H8159 (Nov. 14, 2001);147 Cong. Rec.S11878-S11886 (Nov. 15, 2001).
Owing to its belated emergence in the legislative process, there is nothing said about � 626(c) in the legislative history of H.R. 2500, aside from the joint explanatory statement of the Conference Committee that "[s]ubsection (c) quashes the State Department's motion to vacate the judgment obtained by plaintiffs in Case Number 1:00CV03110 (ESG) [sic] in the United States District Court for the District of Columbia." H.R. Rep. No. 107-278 at 170. This description bears little resemblance, however, to either the statute or its operation. Moreover, the Conference Report does not identify who the plaintiffs are in "Case Number 1:00CV03110 (ESG)," or supply any other informative details about the lawsuit. To those, including members of Congress, who are unfamiliar with this case by its civil action number, the Conference Report offers no insights as to the nature of the case, the reasons for legislative intervention in the matter, or the arguments against doing so./
II. THE IMPACT OF � 626(C) ON THE COURT'S JURISDICTION
There is no dispute among the parties that, owing to � 626(c), this Court is endowed with subject matter jurisdiction to adjudicate the merits of plaintiffs' claims as of November 28, 2001, the date that H.R. 2500 became law. See Gov't Dismiss Reply at 3, 13. The outstanding issue pertains to the August 17, 2001 default judgment: whether � 626(c) can retrospectively animate a judicial act which, for want of jurisdiction at the time, was a "legal nullity" from the moment of its inception. See Combs v. Nick Garin Trucking, 825 F.2d 437, 441-42 (D.C. Cir. 1987) . To accomplish this feat, the statute should at the very least provide a clear expression of congressional intent to do so, in the manner required by Landgraf v. USI Film Prod., Inc., 511 U.S. 244 (1994). See Gov't Dismiss Reply at 13-15. Where, as here, "the statute contains no such express command," Landgraf instructs that it may not be applied in a retrospective manner. 511 U.S. at 280.
Plaintiffs reason that because � 626(c) necessarily applies to this pending case, it must likewise apply to the prior judgment entered on August 17. Pl. Surreply at 3. But Martin v. Hadix, 527 US. 343 (1999) (Gov't Exh. 41), holds otherwise. The question there was whether the Prison Litigation Reform Act (the "PLRA") limited attorneys' fees for postjudgment monitoring activities in pending cases. Id. at 347. Although the statute expressly provided that it applied "to any action" by a prison inmate, the Supreme Court held that this language fell short of the "unambiguous directive" required for retroactive application of the PLRA's limits on attorney's fees to postjudgment monitoring that occurred before the statute's enactment. Id. at 354-55, 358-60. Accordingly, the Court held that, in pending cases, the new limits on attorneys' fees applied only to postjudgment monitoring conducted after the effective date of the legislation. Id. Hadix forecloses plaintiffs' argument that because a statute applies to a pending case, it must necessarily apply to events completed in the case before its enactment.
Plaintiffs also conclude that � 626(c) should be given retroactive effect because it amends the Antiterrorism Act of 1996, which has been applied retrospectively to terrorist acts occurring before its enactment. Pl. Surreply at 3 & n. 2. But as the cases cited by plaintiffs note, the Antiterrorism Act contains an express statutory provision that "[t]he amendments made by [Title II, subtitle B of the Act] shall apply to any cause of action arising before, on, or after the date of the enactment of th[e] Act." Pub. L. 104-132, � 221(c), 110 Stat.1243 (1996) (emphasis added). Plaintiffs' argument merely highlights the absence of a like provision accompanying � 626(c).
Finally, plaintiffs maintain that any question about the retroactivity of � 626(c) is "dispelled" by the remarks in the Conference Report that "[s]ubsection (c) quashes the State Department's motion to vacate" the default judgment. Pl. Surreply at 4. But Landgraf teaches that "congressional enactments . . .will not be construed to have retroactive effect unless their language requires this result," 511 U.S. at 264 (emphasis added), quoting Bowen v. Georgetown Univ. Hosp, 488 U.S. 204, 208 (1988), so as to "assure[ ] that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits." Id. at 272-73. Thus,
the standard for finding such unambiguous direction [to apply a statute retroactively] is a demanding one. Cases where [the Supreme] Court has found truly retroactive effect adequately authorized by statute have involved statutory language that was so clear that it could sustain only one interpretation [emphasis added].
INS v. St. Cyr, 121 S. Ct. 2271, 2279 (2001) (internal quotations and citation omitted). See also Hadix, 527 U.S. at 354-55 (concluding the PLRA could not be applied retroactively after determining that the statutory language did not "unambiguously address[ ]" the Act's temporal reach). These precedents leave no room for legislative history to fill the void in the statutory language of � 626(c). Even if the situation were otherwise, the legislative history of � 626(c), and the delphic explanation of the statute provided by the Conference Report, are anything but reassuring that Congress "affirmatively considered" retroactive application of � 626(c) "and determined that it is an acceptable price to pay for the countervailing benefits." Landgraf, 511 U.S. at 272-73.
In any event, the Court does not have to parse this murky legislative effort. Even assuming the Court has been endowed with some sort of "retroactive jurisdiction" that breathes life after-the-fact into the August 17 default judgment, the judgment should still be vacated, under Federal Rule of Civil Procedure 60(b)(6), because of the extraordinary circumstances of this case. In addition to the ramifications for U.S. foreign policy if the default judgment is not vacated, that judgment was entered in the first place without opportunity for the Court to consider a question that is central to the litigation -- whether, under the Algiers Accords, plaintiffs have a right to maintain this action at all. Gov't Dismiss Mem. at 13-16; Gov't Dismiss Reply at 15-16. In an apparent effort to avoid vacatur of the default judgment on these grounds, plaintiffs go so far as to argue that � 626(c) "requires the quashing of the government's motion to vacate" in its entirety. Pl. Surreply at 10.
This argument fails because, like so many of plaintiffs' arguments, it ignores the plain language of the statute. Section � 626(c) amends the Foreign Sovereign Immunities Act, and says nothing about "quashing" the government's motion to vacate the default judgment. That concept, appearing only in the Conference Report, cannot be elevated to the status of a legislative command when it has no counterpart in the statutory language that Congress enacted as the law. United States v. Am. College of Physicians, 475 U.S. 834, 846-47 (1986). Section 626(c) may arguably remove foreign sovereign immunity as a basis for vacating the default judgment, but the statute in no way impugns the conclusion that the default judgment should be vacated under Rule 60(b)(6) as contrary to the United States' obligations under the Algiers Accords.
Plaintiffs' interpretation of � 626(c) as "requiring" this Court to quash the government's motion to vacate the default judgment must also be rejected because of the "cardinal principle" that statutes should be construed to avoid raising doubts about their constitutionality. Zadvydas v. Davis, 121 S. Ct. 2491, 2498 (2001); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); Qualcomm, Inc. v. FCC, 181 F.3d 1370, 1379 (D.C. Cir. 1999). Under separation-of-powers principles first articulated in United States v. Klein, 80 U.S. 128, 146 (1872) (Gov't Exh. 42), Congress may not "prescribe a rule for the decision of a cause in a particular way." See Plaut v. Spenthrift Farm, Inc., 514 U.S. 211, 218 (1995) (Gov't Exh. 42). A statute "quashing" a specific litigant's motion in an identified case is tantamount to a legislative directive to decide that motion in a particular way, in apparent violation of the rule announced in Klein. Congress may change the law that a court must apply in a pending case, as it did here in removing the bar of foreign sovereign immunity, but it cannot, under Article III, direct this Court, or any other court, how to rule.
Furthermore, Plaut observed that the authority to vacate judgments under Rule 60(b) "merely reflects and confirms the courts' own inherent and discretionary power . . . to set aside a judgment whose enforcement would work inequity." 514 U.S. at 233-34. While Plaut held specifically that a statute directing the federal courts to reopen final judgments violated separation-of-powers principles, it seems equally the case that a statute prohibiting a court from reopening a judgment would also encroach upon the court's inherent and discretionary power in an unconstitutional way. Rather than precipitate a confrontation with constitutional questions of this order, the Court's duty is to adhere to the plain language of � 626(c), by which these issues can be avoided. Jones v. United States, 529 U.S. 848, 857 (2000).
III. WHETHER THE FLATOW AMENDMENT SUPPLIES A CAUSE
OF ACTION FOR SUITS AGAINST A FOREIGN STATE
Plaintiffs have twice taken the position before this Court that the Flatow Amendment creates a federal claim against foreign states for those victimized by acts of terror. Pretrial Brief of Plaintiff Class, filed July 13, 2001, at 7-8 (Gov't Exh. 6); Pl. Dismiss Opp. at 11-12. Now that the government has shown that the plain language of the Flatow Amendment applies only to the officials, employees and agents of foreign states, Gov't Dismiss Reply at 17-19, plaintiffs reverse course. Their surreply argues that Congress created an express cause of action against foreign states under the Antiterrorism Act, that is to say, 28 U.S.C. � 1605(a)(7), and that the Flatow Amendment merely extends this cause of action "to the remote proxies of these governments." Pl. Surreply at 5-6.
Plaintiffs could scarcely have sent a clearer signal that they have lost faith in their argument that the Flatow Amendment supplies them with a viable cause of action, but there is no reason for greater confidence in their new-found argument that a claim was created for them under 28 U.S.C. � 1605(a)(7). Section 1605(a)(7) is a provision of the Foreign Sovereign Immunities Act, whose purpose is to "comprehensively regulat[e] the amenability of foreign nations to suit in the United States." Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493 (1983). Consistent with this objective, � 1605(a) states that "[a] foreign state shall not be immune from the jurisdiction of courts of the United States in any case" where, among other exceptions, "(7) . . . money damages are sought against a foreign state for personal injury or death that was caused by an act of [terrorism] . . . engaged in by an official, employee or agent of such foreign state . . . [emphasis added]." Plainly, the statute operates as an exception to foreign states' immunity, conferring jurisdiction on the courts to hear such causes of action as the laws of our Nation might otherwise provide to the victims of state-sponsored terrorism, but there is nothing in the language of � 1605(a)(7), or the FSIA as a whole, that creates such a cause of action in the first instance./
The statute's unambiguous meaning is reinforced by its legislative history. As explained by the conference report accompanying the Antiterrorism Act, � 1605(a)(7) "provides that [state sponsors of terrorism] 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 . . . arising from terrorist acts they commit . . .." H.R. Rep. No. 518, 104th Cong., 2d Sess. 112 (1996) (emphasis added), reprinted in 1996 U.S.C.C.A.N. 924, 945. See also H.R. Rep. No. 383, 104th Cong., 1st Sess. 62 (1995) (under section � 1605(a)(7), "[j]urisdiction would be granted" in suits by U.S. nationals against foreign states for torture, extrajudicial killing, and other acts of terrorism). The legislative history of 28 U.S.C. � 1605(a)(7) says nothing, on the other hand, about creating a cause of action that did not otherwise exist./ In accordance with the statute's plain language, and its legislative history, judges of this Court have previously recognized that "[t]he Antiterrorism Act merely waived the sovereign immunity of state sponsors of terrorism," but did not itself create a cause of action for victims of terrorism. Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 106 (D.D.C. 2000); Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 12 (D.D.C. 1998) ("[a]lthough the Antiterrorism Act created a forum competent to adjudicate claims arising from [acts of terrorism], serious issues remain [regarding] the causes of action available to plaintiffs").
Remarkably, no sooner have plaintiffs completed their new argument, that the Antiterrorism Act supplies them their right of action in this case, than they apparently return to their original position, that the Flatow Amendment is the source of that right. Pl. Surreply at 8 ("[t]hus, the Flatow Amendment was aimed at holding state sponsors of terrorism liable for the acts of their remotest proxies"). As always, they abjure reference to the plain language of the statute on which they purport to base their claims, falling back again on prior decisions which themselves fail to reckon with the statutory language. Id. at 8-9. The mutual inconsistency of plaintiffs' arguments from one brief to the next, and from one page to the next, reflects the fact that none of them can be squared with the terms of the statutes on which plaintiffs have predicated their claims./
IV. WHETHER THE FLATOW AMENDMENT OR � 626(C) CAN ABROGATE
THE ALGIERS ACCORDS AND THEIR IMPLEMENTING REGULATIONS
In Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243 (1984), the Supreme Court held that Congress's repeal of the Par Value Modification Act (the "PMVA"), which set an official price of gold in the United States, did not render the air cargo liability limits of the Warsaw Convention unenforceable in the United States, even though these limits were expressed in terms of a gold standard. The Court reached this conclusion in principal reliance on the "firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action." Id. at 252. "A treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed," the Court wrote. "Legislative silence is not enough . . .." Id. (internal citations and quotations omitted). Finding no reference to the Warsaw convention in the language or legislative history of the Act repealing the PMVA, id., the Court held that the Act "cannot be construed as terminating or repudiating the United States' duty to abide by the Convention's cargo liability limit." Id. at 253.
Weinberger v. Rossi, 456 U.S. 25 (1982), relied on the same canon of construction in a case involving an international executive agreement. Rossi involved an amendment to the Military Selective Service Act ("MSSA"), which prohibited employment discrimination against U.S. citizens on military bases overseas, unless permitted by "treaty." Presented for decision was whether this amendment repudiated an earlier executive agreement that guaranteed preferential employment of Filipino citizens on U.S. military bases in the Phillipines. Id. at 26-27. The Court took as its starting point the maxim that "an act of [C]ongress ought never to be construed to violate the law of nations, if any other possible construction remains." Proceeding from there, the Court held that, "absent some affirmative expression of congressional intent to abrogate the United States' international obligations" in the language or legislative history, the "treaty exception" in the MSSA should be construed to include international executive agreements, as well as Article II treaties, to avoid a construction of the Act that would invalidate the agreement with the Philippines. Id. at 32-36. In so holding, the Court observed that McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20-21 (1963), had also applied this canon to avoid construing an Act of Congress in a manner contrary to federal regulations, where doing so would have had foreign policy implications. Id. at 32.
Under TWA, Weinberger, and McCulloch, neither the Flatow Amendment, nor � 626(c), can be construed as abrogating the United States' commitment under the Algiers Accords to bar and preclude the prosecution of claims such as plaintiffs have asserted here, or the implementing federal regulations, which in fact prohibit plaintiffs from litigating their claims against Iran. Even if this Court assumed for purposes of analysis that the Flatow Amendment provides a cause of action against foreign states at all, there is no reference in the language or legislative history of the Flatow Amendment to the Algiers Accords, and certainly no clear expression on the part of Congress to abrogate or modify the terms of the United States' commitments thereunder. See TWA, 466 U.S. at 252. Absent such "affirmative expression of congressional intent," Rossi, 456 U.S. at 32; McCulloch, 372 U.S. at 20-21, the Court must instead construe the Flatow Amendment in a manner that is consistent with the Algiers Accords, if any such construction is possible./
Of course, the only straightforward construction of the Flatow Amendment is that it supplies no cause of action against foreign states whatsoever. Again, however, even if the Court assumed as a general matter that the Flatow Amendment created a cause of action against foreign states, it may still be harmonized with the Algiers Accords. It need only be viewed, quite naturally, as supplying a new legal cause of action for those who still possess viable claims against terrorist nations, rather than reviving the claims of others, such as the plaintiffs here, whose particular claims have already been legally compromised or extinguished. See Gov't Dismiss Mem. at 22.
For similar reasons, � 626(c) also cannot be construed as abrogating the Algiers Accords, or their implementing federal regulations. In the first place, � 626(c), like the Antiterrorism Act, is a jurisdictional statute which, by its very nature, cannot come into conflict with, or, therefore, abrogate the Algiers Accords, which provide the "substantive law governing" the decision of this case. Gov't Dismiss Reply at 22, citing Dames & Moore v. Regan, 453 U.S. 654, 685 (1981). Moreover, there is no clear expression, either in the statutory text, or in the Conference Report's opaque description of � 626(c), of a congressional purpose to renounce the commitments our Nation made under the Algiers Accords. Therefore, � 626(c) "cannot be construed as terminating or repudiating the United States' duty to abide by" the Algiers Accords. TWA, 466 U.S. at 253. Instead, � 626(c) should be taken at its word, but no further, as merely granting the Court the jurisdiction it lacked before to decide whether plaintiffs have stated claims that survive the implementation of the Algiers Accords.
Plaintiffs nonetheless perceive a conflict between the Algiers Accords, and the legislative act of granting the Court jurisdiction to decide their claims, that is "alone enough to abrogate the provisions of the Algiers Accords being invoked by the State Department." Pl. Surreply at 12-13. But, as the government observed earlier, merely granting the Court jurisdiction to hear whatever claims the plaintiffs may have is not the equivalent of granting them a cause of action for damages against Iran in outright renunciation of the Algiers Accords. The sort of philosophical tension that may be seen between the Algiers Accords, and the enactment of � 626(c), is not the sort of irreconciliable conflict between the express terms of a statute, on the one hand, and the provisions of an international legal agreement, on the other, that is required before the statute can be construed as abrogating legal duties that our Nation owes to another. TWA, 466 U.S. at 252; Rossi, 456 U.S. at 32.
This argument merits a further moment's consideration, however, as it characterizes the approach taken throughout the plaintiffs' surreply. Disregarding the terms of the various statutes on which they base their case, plaintiffs cite them much less as statements of the law than as signs that "Congress has sided with plaintiffs" and "does not want the State Department to prevail." Pl. Surreply at 2, 5; see id. at 3, 10, 12. It is difficult, realistically, to attribute such resolve to the Congress, when � 626(c) was not drafted until after H.R. 2500 had gone to conference, and the Conference Report offered members an explanation of the statute that refers to this case in only the most opaque terms, while never explaining precisely what the statute purports to do, on whose behalf, or why.
In the final analysis, however, the questions presented to this Court must be resolved by examining the text of the relevant statutes, "not by psychoanalyzing those who enacted [them]." Carter v. United States, 530 U.S. 255, 271 (2000). None of the statutes that plaintiffs have invoked contains the language they require in order to prevail: that they may prosecute claims for money damages against Iran arising out of their seizure and detention in Tehran, notwithstanding the terms of the Algiers Accords, or their implementing regulations. Such straightforward legislation would be simple enough to draft, but, by the same token, may be much more difficult to enact. But, absent such plain, statutory language expressly abrogating the Algiers Accords, it is the necessary duty of this Court to abide by and uphold the commitments that this Nation made in order to secure the freedom of the hostages in 1981.
For the foregoing reasons, the United States' motion to vacate the default judgment, and to dismiss plaintiffs' claims, should be granted.
Dated: December 7, 2001
JACOB K. COGAN
Office of the Legal Adviser
U.S. Department of State
Suite 203, South Building
2430 E Street, NW
Washington, D.C. 20037-2800
ROBERT D. McCALLUM, JR.
Assistant Attorney General
ROSCOE C. HOWARD, JR.
United States Attorney
DAVID J. ANDERSON
VINCENT M. GARVEY
JAMES J. GILLIGAN
U.S. Department of Justice
Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
Counsel for Intervenor-Defendant
this is a curious remark, seeing as the statute amends the so-called terrorism exception to foreign sovereign immunity under the FSIA, and nothing is said in the text about quashing a motion of any kind.
TVA v. Hill, 437 U.S. 153, 184 n. 29 (1978) ("[w]hen confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning") Certainly cannot rely on leg hist to supply terms that are inconsistent with or wholly Davis Cty. Solid Waste Management v. EPA, 101 F.3d 1395, 1407 (D.C. Cir. 1996), quoting. Courts should be reluctant to rely on a committee report to supply a provision not enacted by Congress.
"Congressional ratification of this Court's prior judgment and of the correctness of plaintiffs' prior legal position"
"Congress has sided with plaintiffs"
"Congress made it clear it disagrees with the government[ ]" and "squarely rejected the position of the State Department"
"repudiate this effort by the State Department"
2, 3, 5, 10
Under these circumstances, plaintiffs cannot expand the plain meaning of the statute by resort to the legislative history, West Virginia Univ. Hosp. v. Casey, 499 U.S. 83, 98-99 (1991); Robinson v. Shell Oil Co., [117 S. Ct. 843, 846] (1997) (the court's inquiry "must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent"), and that is particularly so where they attempt to read a committee report as an operative provision of law that Congress itself did not enact.