Gregory Allen PERSINGER, et al., Appellants v. ISLAMIC REPUBLIC OF IRAN, et al.
No. 81-2003
United States Court of Appeals, District of Columbia Circuit.
Argued May 19, 1983. Decided March 13, 1984.
729 F.2d 835
Before EDWARDS and BORK, Circuit Judges, and BAZELON, Senior Circuit Judge.
It is so ordered.
(emphasis added). Assuming discretion in the trial court to permit a litigant to select as her representative a person not admitted to practice, see United States v. Whitesel, 543 F.2d 1176, 1180 (6th Cir.1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2924, 53 L.Ed.2d 1062 (1977), we know of no instance in which an appellate court has overturned the judgment of a court of first instance disallowing such representation. But see Weckstein, Limitations on the Right to Counsel: The Unauthorized Practice of Law, 1978 UTAH L.REV. 649, 677.
The District Court in this case noted particularly that Anthony R. Martin-Trigona was expected to be a principal witness for his mother. Georgiades v. Martin-Trigona, No. 82-1763 (D.D.C. Nov. 4, 1982), reprinted in App. 27. Cf. Hickman v. Taylor, 329 U.S. 495, 517, 67 S.Ct. 385, 396, 91 L.Ed. 451 (1947) (Jackson, J., concurring) (advocate‘s role inconsistent with that of witness). The denial of Helen Martin-Trigona‘s extraordinary request for representation by her son, in short, was solidly grounded and commands this court‘s respect.
Since the District Court may, on remand, find there is no federal jurisdiction to entertain this suit, we deem it unnecessary at this point to decide whether Anthony R. Martin-Trigona was an appropriate candidate for intervention under either
Brice M. Clagett, Washington, D.C., with whom Paul G. Gaston and Harold Hongju Koh, Washington, D.C., were on the brief for amicus curiae, FLAG, Inc., opposing modification of original opinion.
Peter J. Neeson, Philadelphia, Pa., of the Bar of the Supreme Court of Pa., pro hac vice, by special leave of the Court, with whom Mark H. Tuohey, III, Washington, D.C., Julian N. Eule, Philadelphia, Pa., were on the brief, for appellants.
Thomas G. Shack, Jr. and Thomas D. Silverstein, Washington, D.C., entered appearances for appellee, Islamic Republic of Iran.
Opinion for the Court filed by Circuit Judge BORK.
Opinion dissenting in part and concurring in part filed by Circuit Judge HARRY T. EDWARDS.
BORK, Circuit Judge:
This is an action for damages against the Islamic Republic of Iran for injuries inflicted by the seizure and detention of American hostages. Appellants, plaintiffs below, are a former hostage and his parents. On October 8, 1982, we issued an opinion af
Though the United States, which had intervened as a party-defendant in order to meet its obligations under the executive agreement with Iran, see American International Group, Inc. v. Islamic Republic of Iran, 657 F.2d 430, 433 (D.C.Cir.1981), prevailed, the government was sufficiently concerned about our ruling on the question of sovereign immunity to petition the panel for rehearing on that issue. We granted the petition, and now affirm the judgment of the district court on that court‘s alternate ground: Iran enjoys sovereign immunity and that immunity has not been lifted for the acts involved here by the Foreign Sovereign Immunities Act,
I.
Gregory Allen Persinger is a United States Marine, who, on November 4, 1979, was stationed at the United States Embassy in Tehran, Iran. On that date, the Embassy was seized by Iranian militants, and the Embassy‘s personnel, including Sergeant Persinger, were captured and held hostage. This act, which was not merely hostile to the United States but unprecedented in the history of international rela1tions, at once created a crisis between the United States and Iran. The United States tried to secure the release of the hostages through a series of stringent retaliatory measures, but all such efforts failed.1
Ultimately, the United States was able to obtain the hostages’ freedom only by an executive agreement with Iran that necessarily made concessions to that country. Since diplomatic relations with Iran had been severed, the agreement was embodied in two Declarations of the Government of Algeria, initialed for the United States by Deputy Secretary of State Warren M. Christopher on January 19, 1981. The hostages, including Sergeant Persinger, were released the following day, having been held captive for almost fifteen months.2
Sergeant Persinger and his parents brought suit in the district court against the Islamic Republic of Iran on February 2, 1981, alleging numerous violations of treaties and of international, constitutional, and common law. The United States moved to dismiss the complaint. After a hearing, District Judge Oberdorfer granted the government‘s motion. Persinger v. Islamic Republic of Iran, Civ. No. 81-00230 (D.D.C. Aug. 21, 1981). Relying on Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981), the district court held that “the President may dispose of private claims against foreign states to resolve, or avoid, international crises.” Persinger v. Islamic Republic of Iran, slip op. at 2. (In Dames & Moore, the Supreme Court upheld the legality of a different executive order issued as part of the effort to carry out the Algerian Declaration.) The district court held, in the alternative, that even in the absence of a valid executive order, Iran would be immune under the Foreign Sovereign Immunities Act from
II.
A.
In its initial submissions, the government contended that we need not reach the issue of Iran‘s sovereign immunity—and of this court‘s jurisdiction—if we decide that President Carter had the power lawfully to extinguish the Persingers’ claims. Brief for the United States at 22. We disagree. The Act expressly deprives a court of jurisdiction over any party entitled to sovereign immunity.
Foreign states are generally immune from the jurisdiction of federal and state courts.
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—
...
(5) in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; ....
That Congress has the power to exercise jurisdiction over certain activities at U.S. embassies abroad is not disputed. Agee v. Muskie, 629 F.2d 80, 111 (D.C.Cir.) (MacKinnon, J., dissenting) (United States embassy is under concurrent jurisdiction of United States criminal laws), rev‘d on other grounds sub nom. Haig v. Agee, 453 U.S. 280, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1980); see also Brief for the United States at 22-23.5 The issue before this court, then, is whether Congress, in enacting the FSIA, intended to exercise its jurisdiction to give courts in this country competence to hear suits against foreign states for torts committed on United States embassy premises abroad. That issue turns upon the question whether United States embassies are within the definition of “United States” set forth in section 1603(c). The government contends that the FSIA was intended to abrogate sovereign immunity only for torts within the exclusive territorial jurisdiction of the United States.6 It is contended, on the other side, that since embassies are “substantially removed from the jurisdiction of the receiving state,” Brief of Amicus Curiae FLAG, Inc. on Rehearing at 7,7 and are subject to the concurrent jurisdiction of both sending and receiving states, Iran is not shielded by sovereign immunity from liability for torts at the United States Embassy in Tehran, Iran. Id. We are persuaded by the language of the statute, its legislative history, and by the consequences of adopting a contrary position that section 1605(a)(5) does not remove Iran‘s immunity here.
In section 1603(c), Congress used the words “continental or insular” to modify the scope of the phrase “all territory and waters ... subject to the jurisdiction of the United States.” The latter phrase, if it stood alone, might lead to the conclusion that any territory over which the United States exercises any form of jurisdiction constitutes the “United States” for purposes of the FSIA. Since the United States has some jurisdiction over its Embassy in Iran, it would then follow that Iran had no immunity for tortious acts committed on the Embassy grounds. We think, however, that the modifying words make this construction too awkward to be countenanced. If the definition meant all territory subject to any form of United States jurisdiction, the words “continental or insular” would be surplusage: all territory is continental or insular. The modifying phrase is rather clearly intended to restrict the definition of the United States to the continental United States and such islands as are part of the United States or are its possessions. The ground upon which our Embassy stands in Tehran does not fall within that definition. Hence, Congress intended that, under the statute, Iran should retain its sovereign immunity in this case.
Though the legislative history of the FSIA does not address directly the meaning of “territory ... subject to the jurisdiction of the United States,” see, e.g.,
Moreover, at the 1973 hearings to the predecessor bill—which, although not passed, was “essentially the same ... except for [some] technical improvements,”8 House Report at 10, U.S.Code Cong. & Admin.News 1976, p. 6608, —one of the Act‘s principal draftsmen, Bruno Ristau, testified that:
We would like, based on our experience as a litigant abroad to subsume to the jurisdiction of our domestic courts foreign governments and foreign entities who engage in certain activities on our territory to the same extent that the U.S. Government is already at the present time subject to the jurisdiction of foreign courts, when it engages in certain activities on their soil.
....
[W]e would like to afford our local citizens and entities who deal with foreign governments in the United States effective redress through the instrumentality of our courts. If a dispute arises as a result of an activity which a government carries on in this country, the most appropriate place to resolve such a dispute would be through the courts ....
Immunities of Foreign States: Hearings on H.R. 3493 Before the Subcomm. on Claims and Governmental Relations of the House Comm. on the Judiciary, 93d Cong., 1st Sess. 29 (1973) (testimony of Bruno Ristau) (emphasis added).
In enacting the FSIA, Congress intended to “bring U.S. practice into conformity with that of most other nations.” House Report at 12, U.S.Code Cong. & Admin.News 1976, p. 6610. Our reading of the “United States,” as modified by the terms “continental or insular,” is, therefore, reinforced by the fact that codifications by other nation-states and international organizations—with which Congress sought to be consistent—have provided that a state loses its sovereign immunity for tortious acts only where they occur in the territory of the forum state. Brief for the United States on Rehearing at 15-16, and statutes cited therein.9
Another reason for finding that sovereign immunity exists here is the series of unhappy consequences that would follow if we read section 1603(c) broadly to cover areas in which the United States had jurisdiction of any sort. These consequences would entail not only serious inconvenience and injustice but also embarrassment to our foreign relations. We offer these considerations not as policies we choose but as throwing light on congressional intent. If Congress had meant to remove sovereign immunity for governments acting on their own territory, with all of the potential for international discord and for foreign government retaliation that that involves, it is hardly likely that Congress would have ignored those topics and discussed instead automobile accidents in this country.
One such consequence is that a decision abrogating sovereign immunity for torts on embassy premises would, as the government points out, be the “functional equivalent” of making U.S. embassies part of U.S. territory “for jurisdictional purposes.” Brief for the United States on Rehearing at 28. Such a result could, for example, cause the French government to be subject to suit in the United States if a French government vehicle were involved in an automobile accident on the U.S. embassy grounds in West Germany. Id. at 29. Furthermore, foreign states “might hesitate in providing services to U.S. embassies or consulates” were they to be subject to suit in U.S. courts for negligent acts or omissions on those premises. Id.10 In addition, since some foreign states base their sovereign immunity decisions on reciprocity, or parity of reasoning, it is possible that a decision to exercise jurisdiction in this case would subject the United States to suits abroad for torts committed on the premises of embassies located here. 6 M. Whiteman, Digest of International Law 580-82 (1968).
A principle revoking sovereign immunity on our embassy grounds abroad would also, presumably, have the same effect as to our military and naval bases around the world, since the United States exercises jurisdiction in such locations. The possibilities are almost endless for tort suits in this country against foreign governments for acts or omissions all over the world. We are persuaded that Congress intended nothing of the sort. Embassies may be, as appellants argue, unique in their inviolability but that does not distinguish them from military facilities, libraries, AID missions, and the like with respect to the criteria of the statute. If the controlling question were only whether the United States had some jurisdiction, all premises controlled by this country anywhere in the world would fit the statutory definition of the “United States.” Fidelity to the statutory language would prevent us from picking and choosing among premises subject to some extent of congressional control.
Appellants rely heavily on two criminal cases, United States v. Pizzarusso, 388 F.2d 8 (2d Cir.), cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968), and
B.
The claims brought by Sergeant Persinger‘s parents present a variation on the issue just discussed. They seek to recover for mental and emotional distress suffered within the continental United States. Such injuries are said to be actionable because section 1605(a)(5) requires only that the injury be suffered in the United States but does not require that the tortious act or omission occur here.
Section 1605(a)(5) is ambiguous on this point. It states that immunity is removed in actions “for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission” of a foreign state. It is thus unclear whether both the tort and the injury must occur here or whether the tort may occur abroad and be actionable so long as the injury is suffered here. Compare Frolova v. Union of Soviet Socialist Republics, 558 F.Supp. 358, 362 (N.D.Ill.1983) (act or omission must occur in the United States), and In re Sedco, Inc., 543 F.Supp. 561, 567 (S.D.Tex.1982), with Letelier v. Republic of Chile, 488 F.Supp. 665, 674 (D.D.C.1980) (only tortious injury need occur in the United States). See generally, McKeel v. Islamic Republic of Iran, 722 F.2d at 589-90 n. 10. The ambiguity goes no deeper than the surface of the text, however, for the briefest consideration of the purposes of the statute shows that the first alternative must be chosen: both the tort and the injury must occur in the United States.
We have shown that the proper construction of the statute deprives the district court of jurisdiction to entertain Sergeant Persinger‘s claim. Iran is immune from tort suits here for actions taken by it on its own territory. It would be anomalous to say that Congress intended to deny a remedy to him—a hostage imprisoned and physically abused for more than a year—and yet
Our reading of the statute is further supported by the following passage in the House Report:
It [section 1605(a)(5)] denies immunity as to claims for personal injury or death, or damage to or loss of property, caused by the tortious act or omission of a foreign state or its officials or employees, acting within the scope of their authority; the tortious act or omission must occur within the jurisdiction of the United States ....
House Report at 21, U.S.Code Cong. & Admin.News 1976, p. 6619, (emphasis added).
Moreover, a comparison of the noncommercial tort exception—section 1605(a)(5), under which this suit was brought—with the commercial activity exception, section 1605(a)(2), demonstrates that Congress intended the former to be narrower than the latter. The commercial activity exception expressly provides that a foreign sovereign‘s commercial activities “outside the territory of the United States” having a “direct effect” inside the United States may vitiate the sovereign‘s immunity. Any mention of “direct effect[s]” is noticeably lacking from the noncommercial tort exception. When Congress uses explicit language in one part of a statute to cover a particular situation and then uses different language in another part of the same statute, a strong inference arises that the two provisions do not mean the same thing. See Russello v. United States, — U.S. —, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983); United States v. Martino, 681 F.2d 952, 954 (5th Cir.1982) (en banc), quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972). Section 1605(a)(5) does not contain the “direct effect[s]” language of section 1605(a)(2), and therefore does not support jurisdiction over the parents’ tort claims.12
For the reasons stated, we have concluded that the FSIA shields Iran from liability and this court has no jurisdiction over the claims of appellants Jacqueline and Lawrence Persinger, and their son, Sergeant Gregory Persinger. Our prior opinion is therefore vacated, and the judgment of the district court is
Affirmed.
HARRY T. EDWARDS, Circuit Judge, dissenting in part and concurring in part:
I concur in the result in Part II.A, but I dissent from the rationale and holding of Part II.B.
Part II.B holds that
in which money damages are sought against a foreign state for personal inju
ry or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment ....
I find the language of this provision unambiguous and clearly applicable on its face to the parents’ claim. In particular, the statute plainly requires that only the injury, and not the tortious act or omission, occur in the United States. I see no reason to resort to the legislative history to clarify the plain language of the statute. Congress never enacted the language of the House Report that “the tortious act or omission must occur within the jurisdiction of the United States.” H.R.REP. NO. 1487, 94th Cong., 2d Sess. 21, U.S.Code Cong. & Admin.News 1976, p. 6619 (1976).
Moreover, I do not find that the case law persuasively supports the reading of the statute adopted in the majority opinion. Only one case, In re Sedco, Inc., 543 F.Supp. 561, 567 (S.D.Tex.1982), holds that the tortious act or omission must occur in the United States. The Sedco court reached its conclusion primarily on the basis of the language of the House Report. A second case cited in the majority opinion, Frolova v. Union of Soviet Socialist Republics, 558 F.Supp. 358, 362 (N.D.Ill.1983), merely states, without any analysis, that the tortious act or omission must occur in the United States. That statement is pure dictum because the court expressly declined to decide the Foreign Sovereign Immunities Act issue.
I am also not convinced that it is anomalous to allow Persinger‘s parents to recover damages for mental and emotional injuries suffered by virtue of their son‘s confinement, but not to allow Persinger himself to recover damages for his own confinement. As a policy matter, Congress might easily have determined to give American courts jurisdiction over claims for damages caused by tortious acts or omissions occurring outside the United States only to the extent that those acts or omissions produce effects within the United States.
Finally, I am not convinced that the “direct effect” language of section 1605(a)(2) compels the reading of section 1605(a)(5) adopted in the majority opinion. There is nothing in the legislative history to support this view and one might as easily assume that Congress intended to restrict jurisdiction more in cases involving commercial activity not carried on in the United States than in cases involving noncommercial torts.
My main point of dissent is that the clear terms of the statute allow for the parents’ claim. I do not think that we are at liberty to decide otherwise on “policy grounds.”
ROBERT H. BORK
UNITED STATES CIRCUIT JUDGE