EMMET G. SULLIVAN, District Judge.
This case represents the latest in a series of attempts by plaintiffs, who were taken hostage by the government of the Islamic Republic of Iran in 1979, to hold that country responsible for their tremendous suffering. Plaintiffs have attempted to sue Iran at various times since 1983, without success. See, e.g., Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C.Cir.1984); McKeel v. Islamic Republic of Iran, 722 F.2d 582 (9th Cir.1983); Ledgerwood v. State of Iran, 617 F.Supp. 311 (D.D.C.1985). Plaintiffs again filed suit in this Court in 2000, in Roeder v. Islamic Republic of Iran, Civ. Action No. 00-3110(EGS) (hereinafter "Roeder I"). In April 2002, this Court dismissed plaintiffs' claims. See Roeder I, 195 F.Supp.2d 140 (D.D.C.2002). This Court held that the Foreign Sovereign Immunities Act ("FSIA"), as it existed in 2002, did not
In their previous cases, including Roeder I, plaintiffs have been thwarted by the Algiers Accords, the 1981 executive, bi-lateral agreement between the United States and Iran that secured the hostages' release. Both the Algiers Accords and its implementing regulations contain express prohibitions barring lawsuits arising out of the hostage taking. As this Court and the Court of Appeals explained in Roeder I, Congress has the authority to abrogate the Algiers Accords; however, it must act clearly and unambiguously to do so. See Roeder I, 195 F.Supp.2d at 168-170, aff'd 333 F.3d at 237-238. In Roeder I, this Circuit concluded that as of 2002 Congress had not acted clearly or unambiguously, and thus dismissed plaintiffs' claims. See 195 F.Supp.2d at 166; affd 333 F.3d at 238.
Now, several years later, plaintiffs have returned to this Court and filed the instant case (hereinafter "Roeder II"). Plaintiffs argue that in the years since Roeder I was decided, Congress has created a private right of action which enables them to proceed with a lawsuit against Iran. Specifically, they argue that by enacting the National Defense Authorization Act for Fiscal Year 2008, Congress has finally spoken clearly and unambiguously, and created a cause of action to enable them to sue Iran for damages. Compl. ¶ 20. The United States intervened and shortly thereafter filed a motion to dismiss, arguing that once again, Congress has failed to act with sufficient clarity to abrogate the Algiers Accords. This Court is thus confronted with the same fundamental question it faced in 2002: whether Congress has acted definitively to abrogate the Algiers Accords and enable plaintiffs to move forward in their suit for damages. With an equal measure of frustration, regret, and compassion the Court must conclude, once again, that Congress has failed to provide plaintiffs with a cause of action against Iran. Accordingly, this Court is not empowered to provide plaintiffs the relief they seek and the United States' motion to dismiss must be
As set forth above, this Court does not write on a clean slate: this case, like Roeder I, rests squarely on whether Congress has abrogated the Algiers Accords. As explained in Roeder I, the Algiers Accords is an international executive agreement the United States entered into with the Islamic Republic of Iran on January 19, 1981, in order to obtain the freedom of the plaintiff hostages. Among other commitments contained in the agreement, the United States agreed to "bar and preclude the prosecution against Iran of any pending or future claim of ... a United States national arising out of the events ... related to (A) the seizure of the 52 United States nationals on November 4, 1979, [and] (B) their subsequent detention." Declaration of the Government of the Democratic and Popular Republic of Algeria, ¶ 11 (reprinted at 20 I.L.M. 223, 227).
The Roeder I courts explained that a statute must satisfy one of two criteria to overturn a previously-enacted international agreement such as the Algiers Accords. First, if a later statute unambiguously conflicts with the international agreement on its face, the unambiguous later statute will
Roeder I, 333 F.3d at 238 (internal citation omitted).
Accordingly, in Roeder I, the courts determined that an Act of Congress will only abrogate the Algiers Accords' bar to the hostages' ability to sue if it (1) clearly and unambiguously gives the Court subject matter jurisdiction to hear plaintiffs' case, and (2) clearly and unambiguously creates a cause of action against Iran for the 1979 hostage taking. See Roeder I, 195 F.Supp.2d at 163, 167, aff'd 333 F.3d at 236-237. This Court found, and the D.C. Circuit affirmed, that when Roeder I was decided, Congress had provided the first, but not the second. The Roeder I courts' analysis of subject matter jurisdiction and private rights of action are briefly summarized in turn.
As a general matter, the FSIA grants foreign states immunity from liability in United States courts. Federal courts thus generally lack subject matter jurisdiction over claims against a foreign state. Congress has, however, provided several specific exceptions to this immunity. See 28 U.S.C. § 1604; see also Roeder I, 333 F.3d at 235. The Anti-Terrorism Act of 1996 created one such exception, and allowed jurisdiction over foreign states for certain state-sponsored acts of terrorism. See 28 U.S.C. § 1605(a)(7) (1996). Initially, the 1979 hostage-taking of the Roeder I plaintiffs did not fall within that exception; however, Congress amended the law in 2001 to specifically waive sovereign immunity for acts "related to Case Number 1:00CV03110(EGS)
The Roeder I courts next turned to the question of whether the 2001 amendments to the FSIA unambiguously created a cause of action for plaintiffs to sue Iran. The courts found that Congress had not unambiguously created such a cause of
As such, the courts found that the 2001 amendments to the FSIA were ambiguous. While it was possible to interpret the amendments as creating a new private right of action for plaintiffs, it was equally plausible to read the amendments to confer subject matter jurisdiction over the lawsuit but not to create a cause of action for plaintiffs to sue the state of Iran. See 195 F.Supp.2d at 171; aff'd 333 F.3d at 236. Because the Courts found the statutory text ambiguous, they examined the statute and the legislative history to determine whether Congress expressed a clear intent to abrogate the Algiers Accords. See id. Neither this Court nor the D.C. Circuit found a sufficiently clear manifestation of congressional intent. Accordingly, because Congress had neither created an unambiguous cause of action nor demonstrated a clear intent to abrogate the Algiers Accords, plaintiffs were barred from pursuing their claims against the Islamic Republic of Iran in Roeder I.
Following Roeder I, several bills were introduced in Congress which, if enacted, would have undoubtedly provided the 1979 hostages with a viable means to sue Iran. In a 2008 Report for Congress, the Congressional Research Service details attempts in the 107th, 108th, 109th, and 110th sessions of Congress "to enact legislation that would explicitly abrogate the provision of the Algiers Accords barring the hostages' suit." JENNIFER K. ELSEA, CONGRESSIONAL RESEARCH SERV., SUITS AGAINST TERRORIST STATES BY VICTIMS OF TERRORISM (2008), p. CRS-31, available at http://www.fas.org/sgp/crs/terror/RL31258.pdf. As set forth more fully in the Report, Congress has considered multiple bills containing language expressly nullifying the relevant provisions of the Algiers Accords. Id. at CRS-31, -32. None of that language, however, was enacted into law. Id.
Rather, in January of 2008, Congress enacted and the President signed into law the National Defense Authorization Act of 2008 ("NDAA"), Pub.L. 110-181, 122 Stat. 3 (2008), which precipitated the filing of the instant lawsuit. For the purposes of resolving the issues in this case, the only relevant provision is Section 1083, which has been codified at 28 U.S.C. § 1605A. The Court will provide a brief overview of the three relevant provisions of § 1083 here; detailed analysis of each provision will be set forth infra.
Title 28 U.S.C. § 1605A(a) reformulates the terrorism exceptions to sovereign immunity. It incorporates one new provision that encompasses both: (1) the terrorism exception to the jurisdictional immunity of a foreign state, which originally appeared in the Anti-Terrorism Act of 1996, and (2) the specific exception to sovereign immunity for Roeder I that was set forth in § 626(c).
Title 28 U.S.C. § 1605A(c) is titled "Private Right of Action." It creates a cause of action for damages against a "foreign state that is or was a state sponsor of terrorism" under certain circumstances which are set forth elsewhere in the statute. See 28 U.S.C. § 1605A(c). Only one such circumstance is relevant for the purposes of this case. This circumstance is set forth at Section 1083(c) of the NDAA, codified as 28 U.S.C. § 1605A note, and provides that certain cases that are otherwise time-barred may be filed or refiled under the new statute.
Section 1083(c) delineates the scope of retroactive relief available under § 1605A. It sets forth two situations where the NDAA may apply to cases filed prior to its enactment. First, section 1083(c)(2), titled "Prior Actions," provides that certain cases which were still pending before the courts under the preceding statutory scheme when the NDAA was enacted may be refiled under the NDAA. By refiling, claimants may take advantage of the new statute's provisions, which are significantly more favorable to terrorism plaintiffs in general. Second, section 1083(c)(3), titled "Related Actions," provides that certain new actions may be filed under the NDAA if they arose out of the same act or incident as cases filed under the previous statutory scheme. It reads, in relevant part,
Taken together, § 1605A(c) and § 1083(c)(3) provide a cause of action against state sponsors of terrorism in otherwise—untimely new actions under the NDAA—not refiled old ones—so long as the new action is "related" to another action that has been timely commenced under the FSIA and Anti-Terrorism Act of 1996.
On March 21, 2008, plaintiffs commenced this action against the Islamic Republic of Iran alleging violations of 28 U.S.C. § 1605A. They assert that Roeder II is "related" to Roeder I, as defined in Section 1083(c)(3) of the NDAA (28 U.S.C. § 1605A note) and therefore that they have a cause of action under § 1605A(c). Compl. p. 2, see also ¶¶ 21-24. Specifically, they allege that "[t]his action is a related action to Roeder v. Islamic Republic of Iran, et al., Case No. 1:00CV03110(EGS), and arises out of the same act or incident which was timely commenced under section 1605(a)(7) of title 28 in this Court. As such, this action qualifies as a related action under 28 U.S.C. § 1605A." Compl. p.
In light of the events of Roeder I, namely Iran's refusal to appear in this Court and the United States' last minute intervention in the litigation, the Court extended an invitation to the Department of State to "file a statement of interest in the present case, if appropriate, pursuant to 28 U.S.C. § 517." Doc. No. 7, Letter from Hon. Emmet G. Sullivan to John B. Bellinger III, Legal Advisor, U.S. Department of State, April 11, 2008. The government responded in June 2008, stating that if plaintiffs were able to perfect service on Iran and the case were to go forward, "the United States may well have an interest in participating in this litigation." Doc. No. 11, Report of United States, June 13, 2008.
Plaintiffs served Iran at the end of November 2008, but Iran elected not to appear. In April 2009, plaintiffs filed a motion for default judgment as to liability. Immediately thereafter, the United States moved to intervene in this lawsuit and subsequently filed a motion to dismiss. In early October 2009, plaintiffs filed a notice of supplemental authority: In re Islamic Republic of Iran Terrorism Litig., 659 F.Supp.2d 31 (D.D.C.2009). Following briefing on this supplemental authority, this Court heard oral argument on the government's motion to dismiss on April 21, 2010. At the hearing, the Court expressed its concern about the lack of clarity in § 1083. The Court continued the motions hearing for 30 days and directed the parties to inform the Court in the event of any further Congressional developments. The Court reconvened the hearing on May 27, 2010, confirmed with the parties that no Congressional action had been taken, and took the case under advisement. The parties' motions are now ripe for resolution by the Court.
Pending before the Court is the United States' motion to dismiss for failure to state a claim. In its motion to dismiss, the government concedes that § 1083 of the NDAA provides a cause of action against Iran under certain circumstances, but argues that those circumstances do not unambiguously include plaintiffs' case. Thus, the government argues, Congress has not clearly abrogated the Algiers Accords' substantive bar to this litigation. The United States argues that while § 1083 creates substantive rights for other victims of terrorism, it did not cure the 1979 hostages' inability to pursue claims against Iran. Plaintiffs raise three main arguments in opposition. First, they argue that Congress unambiguously created a private right of action for plaintiffs, in particular, to sue Iran pursuant to § 1605A(a)(2)(b). Alternatively, plaintiffs argue that § 1605A(c) and NDAA section 1083(c), taken together, unambiguously create a cause of action because Roeder I qualifies as a "related action" to Roeder II as that term is defined by § 1083(c)(3). Finally, plaintiffs argue that "[e]ven if Congress [] enacted ambiguous statutory language ... § 1083 would still abrogate the Algiers Accords because Congress's intent to do so is overwhelmingly clear." Pls.' Opp'n at 6.
After careful consideration of the parties' arguments and the applicable law, the Court finds that plaintiffs' ability to sue the government of Iran has not changed since Roeder I: § 1083 does not unambiguously create a cause of action for these plaintiffs against Iran. The Court's holding in Roeder I applies equally to the new statutory scheme: "Because th[e] statute is ambiguous, and because [§ 1083] [n]ever mentions the Algiers Accords in statutory text or legislative history, this Court cannot interpret this legislation to implicitly abrogate a binding international agreement.
The parties agree that this case, like Roeder I, turns on whether a later-in-time statute abrogates the Algiers Accords. On September 10, 2010, the D.C. Circuit reaffirmed the demanding standard a party must meet in order to show that a treaty or executive agreement has been abrogated or substantively modified by a later statute. See Bennett v. Islamic Republic of Iran, 618 F.3d at 24 (citing Roeder I, 333 F.3d at 237). As fully set forth in the Roeder I decisions, and recapitulated in Section I.A supra, it is not enough to show that a later-in-time statute may be read to abrogate a previously-enacted international agreement. Rather, the later statute must unambiguously conflict with the agreement in its language and effect. A statute is only unambiguous if it is not "reasonably susceptible to more than one meaning." McCreary v. Offner, 172 F.3d 76, 82 (D.C.Cir.1999); see also U.S. v. Villanueva-Sotelo, 515 F.3d 1234, 1237 (D.C.Cir.2008) (statute is ambiguous when more than one interpretation is possible); Air Transp. Ass'n of Am. v. FAA, 169 F.3d 1, 4 (D.C.Cir.1999) (finding statute ambiguous because, "[a]lthough the inference petitioner would draw as to the statute's meaning is not by any means unreasonable, it is also not inevitable."). If the later statute is not unambiguous on its face, it must contain a clear expression of Congressional intent to abrogate the earlier agreement. See Roeder I, 195 F.Supp.2d at 169-170 (collecting cases); see also 333 F.3d at 237-38 (collecting cases). As set forth by this Court in Roeder I:
Roeder I, 195 F.Supp.2d at 175 (internal citations and quotations omitted); aff'd 333 F.3d at 238. The law on this issue has not changed since Roeder I was decided. See, e.g., Medellin v. Texas, 552 U.S. 491, 509 n. 5, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008).
In short, when interpreting newly created federal legislation which covers the same legal ground as pre-existing international agreements, this Court's role is extremely limited. As set forth in Roeder I,
195 F.Supp.2d at 145.
In their opposition to the motion to dismiss, plaintiffs argue that § 1605A(a)(2)(B) unambiguously creates a cause of action specifically for them. Pls.' Opp'n 6-19. The government counters that § 1605A(a)(2)(B) only confers subject matter jurisdiction on the courts; it does not create a cause of action for plaintiffs to sue Iran. After careful consideration, and as explained more fully below, the Court finds that the text and structure of the statute do not support plaintiffs' construction. Moreover, plaintiffs' construction of § 1605A(a)(2)(B) ignores the binding authority of Roeder I, in which the D.C. Circuit held that substantially identical language in a predecessor statute did not unambiguously create a cause of action. Accordingly, the Court concludes that § 1605A(a)(2)(B) does not provide plaintiffs with a cause of action against Iran.
Section 1605A(a) provides in relevant part:
28 U.S.C. § 1605A(a).
In order for statutory construction to withstand scrutiny, "at a minimum, [it] must account for a statute's full text, language as well as punctuation, structure and subject matter." U.S. Nat'l Bank of Oregon v. Indep. Ins. Agents of America, Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993). Plaintiffs' proposed reading of the statute violates this irreducible minimum. The text of § 1605A(a) refers only to subject matter jurisdiction; it is separate and apart from § 1605A(c), which creates a cause of action.
Plaintiffs' argument is further undermined when considered in light of the history of this case in particular, where the outcome of Roeder I hinged on the distinction between subject matter jurisdiction and private rights of action. As discussed in Section I supra, § 1605A(a)(2)(B) is nearly identical to the language of former § 626(c), which was central to the Court's analysis in Roeder I. This Court found that while § 626(c) did create subject matter jurisdiction for the Court to hear plaintiffs' claims, it did not abrogate the Algiers Accords because it did not create a cause of action for plaintiffs against Iran. See Roeder I, 195 F.Supp.2d at 172. The D.C. Circuit explicitly affirmed this point, holding that § 626(c) spoke "only to the antecedent question of Iran's immunity from suit in United States courts." 333 F.3d at 236.
Despite this Circuit's explicit holdings that § 626(c) was not sufficient to create a private right of action for the hostages to sue Iran, Congress chose to cut and paste the same, insufficient language from § 626(c) in the NDAA, and to place it in the jurisdictional section of the legislation only, not the section entitled "Private Right of Action." As plaintiffs themselves point out, courts normally assume that "when Congress enacts statutes, it is aware of relevant judicial precedent." Pls.' Notice of Supp. Auth. at 1, (quoting Merck & Co. v. Reynolds, ___ U.S. ___, 130 S.Ct. 1784, 1795, 176 L.Ed.2d 582 (2010)); see also, Pls.' Opp'n at 1, 6, 7, n. 6, 9 (citing, e.g., Boumediene v. Bush, 553 U.S. 723, 738, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008)). Given the history and precedent regarding the crucial distinction between creation of subject matter jurisdiction and creation of a cause of action as regards these very plaintiffs, "the reasons for making this assumption are particularly strong here." Merck, 130 S.Ct. at 1795-96.
Plaintiffs make several additional arguments in support of their claim that § 1605A(a)(2)(B) unambiguously creates a cause of action against Iran. For the reasons discussed below, their arguments are unpersuasive.
First, plaintiffs assert broadly that "Congress's action in enacting § 1083 of the NDAA is entirely inexplicable other than as intended to permit plaintiffs to sue Iran and thereby to abrogate any bar to the claim under the Algiers Accords." Pls.' Opp'n at 4, see also 10. This argument is plainly without merit. As the government correctly notes, § 1083 is a statute of general applicability intended to permit U.S. nationals to sue many state sponsors of terrorism in U.S. courts, and is directly relevant to various cases that were pending against Iran, Cuba, and Libya, among other nations, when it was passed. Gov't Reply at 6. As noted by the D.C. Circuit and by another judge on this Court, § 1083 "is more comprehensive and more favorable to [terrorism plaintiffs generally] because it adds a broad array of substantive rights and remedies that simply were not available in actions under § 1605(a)(7)." In re Islamic Republic of Iran Terrorism Litig., 659 F.Supp.2d at 58; see also Simon et al. v. Republic of Iraq, 529 F.3d 1187, 1190 (D.C.Cir.2008), rev'd on other grounds, ___ U.S. ___, 129 S.Ct. 2183, 173 L.Ed.2d 1193 (2009) (explaining NDAA's advantages to terrorism plaintiffs generally, including limiting foreign states' appeal rights, permitting plaintiffs to attach property in advance of judgment, and providing for punitive damages). Plaintiffs' argument that § 1083 is inexplicable
Second, plaintiffs argue that § 1605A's "identification of plaintiffs would be utterly without purpose" because a conferral of subject matter jurisdiction without creation of a private right of action would be meaningless, effectively leaving plaintiffs in the same position they were after the enactment of § 626(c). Pls.' Opp'n at 2. However, plaintiffs fail to acknowledge that the D.C. Circuit considered and rejected the identical argument in Roeder I. There, the Circuit held that § 626(c)'s conferral of subject matter jurisdiction was not "a futile thing" because it gave plaintiffs the opportunity to argue issues of substantive law, even if they did not ultimately prevail on those issues. 333 F.3d at 238. The same holds true here. Section 1083 of the NDAA repeals §§ 1605(a)(7) and 626(c) and replaces them with a new statute— § 1605A. See, e.g., In re: Iran Terrorism Litig., 659 F.Supp.2d at 58. In choosing to include the repealed language of § 626(c) in the new statute, Congress affirmed its intent to remove Iran's sovereign immunity with respect to plaintiffs, and to permit the courts to continue to grapple with these issues on their merits. This does not mean, however, that Congress created a private right of action for the plaintiffs.
In a related argument, plaintiffs maintain that § 1605A(a)(2)(B) was a direct response to Roeder I, and, citing Boumediene v. Bush, they admonish this Court to respect the "ongoing dialogue between and among the branches of Government." Pls.' Opp'n at 6, 9 (quoting Boumediene, 553 U.S. at 738, 128 S.Ct. 2229). Plaintiffs offer no support for this argument. Moreover, they fail to acknowledge the fact that (i) five years passed between Roeder I and the NDAA; and (ii) during those five years legislators tried—and failed—to pass legislation that would have responded to Roeder I by expressly abrogating the Algiers Accords. See Section I.B supra. Moreover, even if the NDAA was intended as a direct response to Roeder I, it does not mean that it would be an effective one: Congress directly responded to Roeder I by passing section 626(c) while the litigation was ongoing, and both this Court and the D.C. Circuit found that response was insufficient to abrogate the Algiers Accords and change the outcome of the litigation.
Turning to the text of the statute, plaintiffs argue that the opening phrase of § 1605A(a)(2) "[t]he Court shall hear a claim under this section if—" means that Congress unambiguously created a cause of action for plaintiffs. Pls.' Opp'n 7-12. However, plaintiffs do not address the arguments set forth above that the text and structure of the statute as a whole clearly separate jurisdictional prerequisites from the elements of a private right of action. See, e.g., U.S. Nat'l Bank of Oregon, 508 U.S. at 455, 113 S.Ct. 2173; King v. St. Vincent's Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991) (enunciating the "cardinal rule that a statute is to be read as a whole, since the meaning of statutory language, plain or not, depends on context. Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used ....") (internal citations and quotations omitted). Plaintiffs rely on a number of attorneys' fees cases for the proposition that the phrase "under this section" unambiguously creates a cause of action. Pls.' Opp'n at 7-8 (citing Ardestani v. INS, 502 U.S. 129, 134, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991); Blackman v. Dist. of Columbia, 456 F.3d 167, 176-77 (D.C.Cir.2006);
For the foregoing reasons, the Court finds that § 1605A(a)(2)(B) does not unambiguously create a cause of action for plaintiffs to sue Iran, nor does it contain clear Congressional intent to abrogate the Algiers Accords.
The second question at issue is whether § 1605A(c), which undoubtedly creates a cause of action for certain victims of terrorism, includes plaintiffs in its purview. After careful consideration, the Court finds that the dispositive legal issue presented is precisely the same as in Roeder I. Once again, "[t]his Court is faced with an arguably ambiguous statutory scheme, one interpretation of which provides a cause of action [for plaintiffs] against Iran and conflicts with the Algiers Accords. This Court may therefore allow plaintiffs to proceed ... only if Congress has adequately expressed the requisite clear intent to abrogate the Algiers Accords." 195 F.Supp.2d at 171. And once again, this Court finds that the text of the statutory provisions do not "contain the type of express statutory mandate sufficient to abrogate an international executive agreement," nor does the legislative history contain "clear statements of Congressional intent to specifically abrogate the Algiers Accords." Id. at 177. Accordingly, this Court is unable to find that the executive or the legislative branch has acted clearly and decisively to enable the Court to grant plaintiffs the relief they seek.
Section 1605A(c) creates a new cause of action in certain instances as follows:
Subsection (a)(2)(A)(i) contains two subsections; only one, (a)(2)(A)(i)(II) applies to this litigation. Subsection (a)(2)(A)(i)(II) defines a foreign state as a state sponsor of terrorism if:
(emphasis added). The parties agree that Roeder II was not filed "by reason of 1083(c)(2)(A)"; therefore only § 1083(c)(3) applies in this case. Section 1083(c)(3) reads:
Accordingly, plaintiffs possess a private right of action under § 1605A(c) if and only if Roeder I qualifies as a "related action" under § 1083(c)(3).
Plaintiffs argue that Roeder I unambiguously qualifies as a related action under § 1083(c)(3). The government counters that it is at least equally plausible to interpret the statute's "related action" provision to require that Roeder I have been pending when the NDAA was enacted. Because Roeder I was not pending, the government argues, plaintiffs cannot meet their burden to show § 1083(c)(3) unambiguously provides them with a cause of action against Iran. Gov't Mem. 14. The Court agrees with the government that the statute is ambiguous as to what constitutes a "related action" under § 1083(c)(3), and for the reasons that follow, holds that Congress did not create an unambiguous cause of action for these plaintiffs.
Beginning with the proposition that "the statute is anything but a model of clarity," the government argues that the structure and text of § 1083(c) suggest that Roeder I cannot be considered a "related action" under § 1083(c)(3). Gov't Mem. 14. The government first considers the heading of § 1083(c): "Application to Pending Cases." Section 1083(c)(3) is a subset of the "Pending Cases" section; thus, to be considered a "related case" under § 1083(c)(3), the original action (to which the new case is being related) must have been "pending" as of "the date of the enactment of this Act [the NDAA] [Jan. 28, 2008]." 28 U.S.C. § 1083(c)(3)(B).
The government also relies on the statute's use of the past perfect tense to describe original actions to which new cases may be considered related under § 1083(c)(3). The statute provides that new cases may be considered related to older actions, "[i]f [the original] action arising out of an act or incident has been timely commenced." § 1083(c)(3) (emphasis added). The government argues that the use of "has been" supports the interpretation that "a new action cannot be deemed `related' unless the original action (Roeder I) was pending" when § 1083 was enacted. Gov't Mem. at 17. The government claims the D.C. Circuit endorsed this reading of the statute in Simon v. Republic of Iraq. In Simon, the D.C. Circuit considered the meaning of § 1083(c)(3) but did not directly address the question presented here. The Simon court interpreted the NDAA to permit "a pending original
Id. According to the government, this language suggests that the Simon court read § 1083(c)(3) to signify that a new action could only be filed if a related action had been timely commenced and was still pending.
Given these doubts regarding the proper interpretation of the statute, the government argues that it would be improper to interpret the statute as abrogating a binding international executive agreement, particularly in light of the absence of any legislative history relating to Roeder I or the Algiers Accords. Gov't Reply at 15-17. The government also notes that Congress is capable of drafting straightforward legislation explicitly abrogating the Algiers Accords, and cites as examples (1) the 2001 legislation, § 626(c), which clearly and unequivocally conferred jurisdiction over this action; and (2) bills such as those which have been introduced but not passed over the years and which, by their terms, abrogate the Algiers Accords. See CONGRESSIONAL RESEARCH SERV., SUITS AGAINST TERRORIST STATES BY VICTIMS OF TERRORISM (2008) at CRS 31-32. The fact that Congress has not acted clearly or decisively here means plaintiffs' claim must be dismissed. Gov't Mem. 17-18.
Plaintiffs advance a number of arguments why § 1605A(c) and § 1083(c)(3) should be construed to provide plaintiffs with a cause of action against Iran. As set forth below, although the Court finds plaintiffs' interpretations plausible, the government's interpretations are as well. And as set forth above, the Court may not rely on plausibility to abrogate a binding international agreement; unless the statute unambiguously conflicts with the Algiers Accords, the Court must interpret the statute to avoid the conflict. Accordingly, the Court cannot find that the 2008 legislation permits plaintiffs to sue Iran.
Plaintiffs first argue that a comparison of § 1083(c)(2) and § 1083(c)(3) compel the conclusion that Roeder I is a "related" action under § 1083(c)(3).
After careful consideration, the Court concludes that the general presumption articulated in Russello should not govern in this case. As the Supreme Court has made clear, "[t]he Russello presumption— that the presence of a phrase in one provision and its absence in another reveals Congress' design—grows weaker with each difference in the formulation of the provisions under inspection." City of Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424, 435-436, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002); see also Clay v. U.S., 537 U.S. 522, 532, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) (same); Field v. Mans, 516 U.S. 59, 67, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995) (declining to "elevate[] [the Russello presumption] to the level of an interpretive trump card").
Reading § 1083(c)(2) and § 1083(c)(3) as integrated parts of a whole, it is clear that the two subsections serve distinct purposes. Section (c)(2) does not authorize the filing of new cases. Rather, it permits plaintiffs in older cases to reframe those same actions under § 1605A so long as they are still before the courts in some form, and expressly waives the defenses of statute of limitations, res judicata, and collateral estoppel. Section 1083(c)(3), on the other hand, permits "related actions" to be filed, even if they are wholly new, as long as they relate to timely filed cases because they "arise out of the same act or event" as the first-filed case. Stated another way, § 1083(c)(2) governs circumstances in which already-filed cases may change course, mid-stream, to proceed under § 1605A, while § 1083(c)(3) governs circumstances in which entirely new actions may be filed as a result of the new legislation, even if such actions would otherwise be untimely.
Plaintiffs next argue that the government's reading of § 1083(c) would render § (c)(3)(B) superfluous of § (c)(3)(A). Section 1083(c)(3) provides that a related action is timely filed:
Plaintiffs claim that if the Court accepts the government's argument that all original cases had to be "pending" when the NDAA was enacted, "then there would be no need to include clause (B). Rather, the timeliness of filing test would always run from entry of final judgment in the pending action, which would necessarily be more than sixty days later than the date of the NDAA's enactment." Pls.' Opp'n at 23. Accordingly, plaintiffs argue that the government's reading of the statute cannot be reasonable because it would require the Court to construe one of its clauses as superfluous or void. Id. (citing TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001)).
Plaintiffs take too cramped a view of the term "entry of judgment." § 1083(c)(3)(A). The Federal Rules of Civil Procedure provide multiple avenues by which a court may enter a judgment. See, e.g., Fed. R.Civ.P. 50, 52, 54(a), 55(b), 56, 57. The Federal Rules of Appellate Procedure and Supreme Court Rules also provide for entry of judgment under additional circumstances. See, e.g., Fed. R.App. P. 36.; Sup.Ct. R. 41-44. The Court can easily envision several scenarios where entry of judgment in the original, related case could have been entered far in advance of the enactment of the NDAA—for instance, the district court could have entered judgment and the case could still be pending on appeal, pursuant to a motion to alter or amend under Fed.R.Civ.P. 59(e), or on a motion for relief from judgment under Fed.R.Civ.P. 60(b). In any of these situations, the latter date for purposes of timely filing the new, related action under § 1083(c)(3) would be "sixty days after the enactment of [the NDAA]", § 1083(c)(3)(B), thus giving meaning and effect to both subsections.
Finally, plaintiffs argue that the use of the present perfect tense in § 1083(c)(3)— "[i]f an action arising out of an act or incident has been timely commenced"— does not indicate that a new action cannot be deemed "related" unless the original action (Roeder I) was pending at the time § 1083 was enacted. Pls.' Opp'n 28. Plaintiffs cite Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976) for the proposition that "has been" denotes an action that has been completed. In Barrett, the Court found that the term "has been shipped" encompassed items that had been shipped and completed their journey in interstate commerce as well as those items that were still in the process of being shipped. Thus, plaintiffs argue, the phrase "has been timely commenced" must include not only actions that were still pending when the NDAA was enacted, but also actions such as Roeder I, which were completed at that time. Pls.' Opp'n at 28-29. The United States counters that Barrett
The Court finds that the phrase "has been commenced" does not resolve the textual ambiguity in the statute. The phrase may be reasonably read to limit § 1083(c)(3)'s reach to cases related to those which were timely filed and are still pending, as the government argues, or to encompass cases related to any and all cases that were timely filed in the first instance, regardless of whether they were still pending when the NDAA became law, as plaintiffs argue. However, the Court need not resolve these questions here: plaintiffs cannot prevail unless they can show that theirs is the only reasonable reading of the statute. For the reasons set forth above, they cannot.
Because the NDAA is ambiguous, "this Court must not interpret [it] to conflict with the Algiers Accords absent a clear intent to abrogate that agreement by Congress." Roeder I, 195 F.Supp.2d at 175. As set forth above,
Id. (internal quotations and citations omitted.) It is undisputed that the Algiers Accords is neither mentioned in the statute, nor discussed or even alluded to in the legislative history. Nevertheless, plaintiffs contend that even if the statute does not unambiguously create a cause of action for them to sue Iran, the Court should find that the legislative history provides clear congressional intent to abrogate the Algiers Accords. See Pls.' Opp'n 17-18 ("Section 1083 was not overlooked by Congress or the President.") In support of this statement, they note that the NDAA's language regarding Roeder I survived a presidential veto and subsequent negotiations over § 1083. They claim that "the intense attention the political branches directed to this very section," demonstrates that the other two branches of government clearly intended § 1083 must abrogate the Algiers Accords. Pls.' Opp'n 18.
This argument is easily resolved. A review of the legislative history reveals that none of the attention focused on § 1083 had anything to do with the provisions at issue in this litigation. The D.C. Circuit accurately summarized the history of the NDAA's passage as follows: "President Bush sought to `pocket veto' the bill because he believed § 1083 would threaten the reconstruction of Iraq.... 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.'" Simon, 529 F.3d at 1190 (citations omitted). The legislative history adds nothing to support plaintiffs' argument. To the contrary, as the government
As this Court found in Roeder I, "[a]n explicit expression of intent to abrogate a binding international agreement requires, at a minimum, an acknowledgment of the existence of that agreement[.]" Roeder I, 195 F.Supp.2d at 182. In Roeder I, this Court was faced with legislative history which directly referenced that case and alluded to the Algiers Accords. Nevertheless, the D.C. Circuit held that because the relevant legislative history was contained in a "joint explanatory statement," a form of committee report which is never subject to a Congressional vote, it was insufficient to abrogate the Algiers Accords. See Roeder I, 333 F.3d at 236-238. In Roeder II, plaintiffs' arguments for clear Congressional intent are even weaker than Roeder I; the legislative history of the NDAA is utterly silent with respect to either the Algiers Accords or this case. Accordingly, the Court finds no clear Congressional intent to abrogate the executive agreement.
Finally, the Court turns to plaintiffs' argument that Chief Judge Lamberth's opinion in In re Islamic Republic of Iran Terrorism Litigation, 659 F.Supp.2d 31 (D.D.C.2009), brought to the Court's attention by plaintiffs as supplemental authority, should guide this Court's analysis and conclusions. The Court gave the parties the opportunity to fully brief the import of the opinion and, after careful consideration of the opinion and the parties' arguments, concludes that the supplemental authority does not alter this Court's analysis.
Plaintiffs principally rely on In re Iran Terrorism Litigation for its conclusion that § 1083(c)(3) allows terrorism victims to file "related cases" within 60 days after the NDAA's enactment, even if the original case to which the new case relates was no longer pending. Specifically, plaintiffs point to that court's determination that "the heading of § 1083(c)—`Application to Pending Cases'—is something of a misnomer because, in reality, § 1083(c) may encompass cases that are not pending at all—meaning prior actions that have since reached final judgment and are no longer before the courts in any form." Id. at 63. Plaintiffs argue that Chief Judge Lamberth's interpretation of § 1083(c)(3), which comports with plaintiffs' interpretation, "makes clear that the current opposition is without any statutory basis." Pls.' Supp. Auth. Mem. at 10.
The Court is unpersuaded by the plaintiffs' selective reading of In re Iran Terrorism Litigation. While the cases addressed in that opinion all name the Islamic Republic of Iran as a state sponsor of terrorism, none of the cases arises out of the 1979 hostage taking and consequently none of them is governed by the Algiers Accords. Notwithstanding any conclusions Chief Judge Lamberth may have reached regarding the meaning of § 1083(c)(3), he—correctly—went to great pains to distinguish the cases before him from the case before this Court. As set forth above, Chief Judge Lamberth found that new "related actions" could be filed against Iran arising out of
659 F.Supp.2d at 88-89 (internal quotations and citations omitted) (emphasis added). In short, the In re Iran Terrorism Litigation court recognized that while the NDAA granted significant new rights and privileges to terrorism victims in general, the 1979 hostage victims do not fall under the category of terrorism victims in general. The opinion also recognized that absent clear abrogation of the Algiers Accords, which the NDAA did not accomplish, the plaintiffs are in the same position now as they were prior to the enactment of the NDAA. Id. at 89-90. Plaintiffs' supplemental authority does not change this Court's analysis; it reinforces it.
As discussed in Section III.C. supra, this Court does not necessarily disagree with Chief Judge Lamberth that § 1083(c)(3) could support the reading urged by plaintiffs. However, as set forth throughout, the language of the statute does not unambiguously require such a conclusion with respect to the 1979 hostage victims, and thus does not abrogate the Algiers Accords.
In this case, as in Roeder I, much time and effort have been expended parsing esoteric phrases of statutory text and legislative history in an effort to discern the intent of Congress. As in Roeder I, this Court is acutely sensitive to the indescribable horror of plaintiffs' suffering. See Roeder I, 195 F.Supp.2d at 145 ("Were this Court empowered to judge by its sense of justice, the heart-breaking accounts of the emotional and physical toll of those 444 days on plaintiffs would be more than sufficient justification for granting all the relief that they request.") The principles that guided the Court's decision in Roeder I, however, are fundamental to our system of government and the fair administration of justice. They are equally binding on this Court now, and they bear repeating.
Roeder I, 195 F.Supp.2d at 183 (internal citation omitted). As discussed throughout this opinion, Congress has failed to enact plain, straightforward language creating a cause of action for plaintiffs; nor has Congress clearly expressed its intent to abrogate the Algiers Accords. Regrettably, this Court must conclude as a matter of law that the plaintiffs cannot pursue a lawsuit for damages for the human suffering and atrocities inflicted upon them by the Islamic Republic of Iran.
For the foregoing reasons, it is hereby
