MEMORANDUM AND ORDER
This matter comes before the Court on defendant’s motion to dismiss [42-1] and plaintiffs’ motion for summary judgment [43-1]. Upon consideration of the parties’ motions, the opposition and reply briefs, and the applicable law in this case, the Court finds that defendant’s motion to dismiss should be granted in part and denied in part, and that plaintiffs’ motion for summary judgment should be denied.
I. PROCEDURAL HISTORY
On May 7, 1997, plaintiffs commenced the present action, asserting claims arising under the Foreign Sovereign Immunities
Act, 28 U.S.C. § 1602-1611
et seq.
(“FSIA”), for hostage-taking and torture. Defendant filed a motion to dismiss, asserting that this Court lacked both subject matter jurisdiction and personal jurisdiction, and that plaintiffs had failed to state a claim on which relief could be granted. On August 24, 2000, this Court denied defendant’s motion.
Price v. Socialist People’s Libyan Arab Jamahiriya,
On June 28, 2002, the D.C. Circuit issued its opinion.
Price v. Socialist People’s Libyan Arab Jamahiriya,
On April 10, 2003, this Court granted plaintiffs’ motion to file an amended com
II. LEGAL ANALYSIS
A. Defendant’s Motion to Dismiss
Defendant has moved to dismiss the present action on three separate grounds. Defendant first states that plaintiffs’ cause of action based on hostage-taking may not be considered by this Court on remand in light of the D.C. Circuit’s decision in Price II. Second, defendant alleges that plaintiffs’ cause of action based on torture must be dismissed for lack of subject matter jurisdiction. Third, and in the alternative, defendant asserts that plaintiffs’ torture claim must be dismissed for failure to state a claim on which relief may be granted. The Court will examine each point in turn.
1. Hostage-Taking
As noted above, the D.C. Circuit reversed this Court’s denial of defendant’s motion to dismiss as to the hostage-taking claim asserted by plaintiffs. Its explanation of this reversal warrants quotation at some length:
In this case, the complaint asserts only that Libya incarcerated Price and Frey “for the purpose of demonstrating Defendant’s support of the government of Iran which held hostages in the U.S. Embassy in Tehran, Iran.” Compl., at ¶ 7. Such motivation does not satisfy the ... intentionality requirement [of the International Convention Against the Taking of Hostages, 28 U.S.C. § 1605(e)(2) ]. The definition speaks in terms of conditions of release; the defendant must have detained the victim in order to compel some particular result, specifically to force a third party either to perform an act otherwise unplanned or to abstain from one otherwise contemplated so as to ensure the freedom of the detainee. Accordingly, detention for the goal of expressing support for illegal behavior — even for behavior that would itself qualify as “hostage taking” — does not constitute the taking of hostages within the meaning of the FSIA.
In this case, the plaintiffs have suggested no demand for quid pro quo terms between the government of Libya and a third party whereby Price and Frey would have been released upon the performance or non-performance of any action by that third party. Indeed, even when read most favorably to them, their complaint points to no nexus between what happened to them in Libya and any concrete concession that Libya may have hoped to extract from the outside world. The one purpose that plaintiffs have alleged is plainly inadequate, and they have advanced no others. Their allegation thus falls short of the standard for hostage taking under § 1605(a)(7).
For these reasons, Libya cannot be stripped of its sovereign immunity based on plaintiffs’ allegation of hostage taking. The District Court thus erred in refusing to dismiss this count. Accordingly, we reverse on this point.
Price II,
However, plaintiffs’ amended complaint includes a claim for hostage-taking under the FSIA. In its opposition brief to defendant’s motion to dismiss, plaintiffs
2. Subject Matter Jurisdiction
In
Price II,
the D.C. Circuit explained that when a cause of action based on torture is brought against a foreign state pursuant to the 1996 amendments to FSIA, “it is especially important for the courts to ensure that foreign states are not stripped of their sovereign immunity unless they have been charged with actual torture, and not mere police brutality.”
Price II,
The D.C. Circuit noted that “[pjlaintiffs must allege more than that they were abused. They must demonstrate in their pleadings that Libya’s conduct rose to such a level of depravity and caused them such intense pain and suffering as to be properly classified as torture.” Id. It observed that the FSIA’s definition of “torture” was derived from the definition of that term in the Torture Victim Protection Act of 1991:
any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind.
28 U.S.C. § 1350 (note). The D.C. Circuit provided an additional gloss on the terms “severe” and “for such purposes” in this definition. It explicated the word “severe” by noting that
[t]he critical issue is the degree of pain and suffering that the alleged torturer intended to, and actually did, inflict upon the victim. The more intense, lasting, or heinous the agony, the more likely it is to be torture. See S. EXEC. REP. NO. 101-30, at 15 (“The United States understands that, in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering.”) (internal quotation marks omitted). This understanding thus makes clear that torture does not automatically result whenever individuals in official custody are subjected even to direct physical assault. Not all police brutality, not every instance of excessive forceused against prisoners, is torture under the FSIA.
Price II,
suggests that any non-enumerated purpose would have to be similar in nature to those mentioned in order to elevate an act of violence into an act of torture. Moreover, this requirement ensures that, whatever its specific goal, torture can occur under the FSIA only when the production of pain is purposive, and not merely haphazard. In order to lose its sovereign immunity, a foreign state must impose suffering cruelly and deliberately, rather than as the unforeseen or unavoidable incident of some legitimate end.
Id. (citation omitted).
Defendant has moved to dismiss plaintiffs’ claims based on torture, asserting that it fails to satisfy these standards. Defendant does not claim that the amended complaint fails to allege a proper claim for torture under the FSIA, but rather contends that deposition testimony presented in an action brought by plaintiffs in the Southern District of New York (“the New York deposition testimony”) contradicts the allegations presented in the amended complaint. Therefore, it has moved to dismiss the plaintiffs’ torture claims pursuant to Federal Rule of Civil Procedure 12(b)(1), asserting that this Court lacks subject matter jurisdiction because an invalid torture claim brought under the FSIA does not waive Libya’s sovereign immunity.
Generally speaking, when deciding a motion to dismiss, a district court must presume all factual allegations presented in a complaint to be true.
World Wide Minerals v. Republic of Kazakhstan,
[i]n some cases, ... the motion to dismiss will present a dispute over the factual basis of the court’s subject matter jurisdiction under the FSIA, that is, either contest a jurisdictional fact alleged by the plaintiff, or raise a mixed question of law and fact. When the defendant has thus challenged the factual basis of the court’s jurisdiction, the court may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant. Instead, the court must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss. The district court retains considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction, but it must give the plaintiff ample opportunity to secure and present evidence relevant to the existence of jurisdiction. In order to avoid burdening a sovereign that proves to be immune from suit, however, jurisdictional discovery should be carefully controlled and limited; it should not be authorized at all if the defendant raises either a different jurisdictional or [another] non-merits ground such as forum non-conveniens or personal jurisdiction the resolution of which would impose a lesser burden upon the defendant.
Id. (internal citations and quotation marks omitted).
In the present case, defendant has challenged the factual basis of this Court’s subject matter jurisdiction by calling into
Indeed, paragraphs 28-31 of plaintiffs’ complaint allege that on three separate occasions, plaintiffs were bound and forced to watch as another prisoner was beaten. Plaintiffs further allege that on each of these occasions, the head of the prison informed them that if they did not sign a confession that they were American spies, they would receive the same treatment that they were witnessing. Plaintiffs allege that on the first occasion, a Tunisian prisoner was beaten even after he lost consciousness, until he appeared to be dead. On the second occasion, plaintiffs allege, a Libyan journalist was beaten. Plaintiffs allege that they were informed that the journalist was being beaten because he had spoken to them and had afforded them some assistance in coping with their incarceration. On the third occasion, plaintiffs allege, a fellow prisoner was beaten to death with truncheons and a hammer. Plaintiffs allege that they were told that the prisoner was killed because he had shared food with plaintiffs that he had received from friends or relatives.
Additionally, plaintiffs allege that approximately one week before they were forced to witness these three beatings, they were visited in prison by a person claiming to be an attorney, who informed them that they would probably receive a lengthy prison sentence or the death penalty if they did not confess to being spies. Pis.’ Am. Compl. ¶ 27. They further allege that approximately two days after the final beating that they were forced to witness, they were interrogated by three prosecutors, and told by the chief prosecutor that they were being afforded one final chance to sign confessions admitting they were spies. Plaintiffs allege that the chief prosecutor told them that if they did not sign the documents that they were presented, they would suffer the consequences that befell the three prisoners. Plaintiffs allege that the Libyan secretary of justice and secretary for foreign affairs were present during this interrogation. They allege that during this meeting, they signed documents written in Arabic without being provided an English translation. Pis.’ Am. Compl. ¶ 33.
The Court concludes that these allegations, which do not conflict with the New York testimony, state a valid claim for mental torture. Plaintiffs were allegedly forced to watch on three separate occasions as fellow prisoners were beaten, one of whom was beaten to death. They were allegedly informed on each occasion that they would suffer the same fate if they refused to confess that they were guilty of espionage. Finally, they were allegedly informed, during an interrogation at which cabinet-level Libyan officials were present, that they were being afforded one last chance to confess, or they would be beaten as they had seen their fellow prisoners be beaten. These allegations satisfy the high standards required by the FSIA for setting forth a claim for mental torture. As for the conflicting versions of the physical treatment to which plaintiffs were subjected, the Court concludes that these allegations would be more properly dealt with during a trial on the merits than in a dismissal motion. Accordingly, defen
3. Failure to State a Claim on Which Relief May Be Granted
In
Price II,
the D.C. Circuit asserted that “our decision today does not address or decide whether the plaintiffs have stated a
cause of action
against Libya,” noting that “[tjhere is a question ... whether the FSIA creates a federal cause of action for torture and hostage taking
against foreign states.” Price II,
In order to address this question, it will be necessary to provide a brief synopsis of the recent amendments to the FSIA.
1
Pri- or to the twentieth century, as a matter of common law, foreign nations were absolutely immune from suit in the federal courts.
See, e.g., The Schooner Exchange v. M’Faddon,
By the 1990s, however, Congress had grown increasingly frustrated with the federal courts for having dismissed a number of actions, on subject matter jurisdiction grounds, that had been brought by American victims of abuse by foreign nations. In 1996, Congress addressed this problem by including within the Antiterrorism and Effective Death Penalty Act, 110 Stat. 1214 (“AEDPA”), an amendment to the FSIA revoking the foreign sovereign immunity of nations which sponsored terrorist acts. This amendment (“the state-sponsored terrorism exception”) created a new exception under the FSIA for any foreign nation designated by the State Department as a sponsor of terrorism, if that nation either commits a terrorist act resulting in the death or personal injury of a U.S. national, or provides material support and resources to an individual or entity that commits such a terrorist act. 28 U.S.C. 1605(a)(7).
Realizing that the new exception did not unambiguously explain the potential causes of action for which sovereign immunity had been waived, Congress acted swiftly to clarify the issue. On September 30, 1996, it passed an amendment to 28 U.S.C. 1605(a)(7), providing, in relevant part:
An official, employee, or agent of a foreign state designated as a state sponsorof terrorism designated under section 6(j) of the Export Administration Act of 1979 while acting within the scope of his or her office, employment, or agency shall be liable to a United States national or the national’s legal representative for personal injury or death caused by acts of that official, employee, or agent for which the courts of the United States may maintain jurisdiction under section 1605(a)(7) of title 28, United States Code for money damages which may include economic damages, solatium, pain, and suffering, and punitive damages if the acts were among those described in section 1605(a)(7).... No action shall be maintained under this action [sic] if an official, employee, or agent of the United States, while acting within the scope of his or her office, employment, or agency would not be liable for such acts if carried out within the United States.
Civil Liability for Acts of State Sponsored Terrorism, Pub.L. 104-208, Div. A, Title I, § 101(c), 110 Stat. 3009-172 (codified at 28 U.S.C.A. §" 1605 note). This provision of law is commonly referred to as the “Fla-tow Amendment.” Because the Flatow Amendment is hardly a model of clear legislative drafting, it has proven necessary for the courts to explain the manner in which it should be construed.
2
For example, the first case in this Circuit to construe the Flatow Amendment held that it is to be construed
in pari materia
with the state-sponsored terrorism exception to the FSIA.
See Flatow,
More pertinent to the present inquiry, this Court has consistently interpreted the Flatow Amendment to provide a cause of action against foreign states for any act that would provide a court with jurisdiction under 28 U.S.C. § 1605(a)(7).
See, e.g., Kerr v. Islamic Republic of Iran,
Defendant cites, as an apparent exception to this line of cases,
Roeder v. Islamic Republic of Iran,
The plaintiffs in
Roeder
were American nationals who had been kidnapped by the government of Iran during the hostage crisis of 1979-81. In order to secure their release, the United States entered into an international executive agreement with Iran on January 19, 1981, which is known as the “Algiers Accords.” One
of the
provisions of the Algiers Accords barred U.S. courts from adjudicating any claims asserted by the hostages arising from their captivity in Iran. President Carter issued a series of executive orders implementing the Algiers Accords, which were later ratified by President Reagan.
Roeder,
Despite the ratification of the Algiers Accords, the former hostages filed suit against Iran on December 29, 2000, asserting claims under the FSIA. Judge Sullivan entered a default judgment against the defendants, and scheduled a trial to determine the amount of damages. On the eve of trial, the United States filed an emergency motion to intervene, asserting that the Algiers Accords mandated a vacation of the default judgment, and a motion to dismiss, asserting a lack of subject matter jurisdiction. Id. at 150-51. While the motion was still pending before Judge Sullivan, Congress introduced into an appropriations act a provision purporting to amend the FSIA to bestow this Court with subject matter jurisdiction over the Roeder plaintiffs’ claims. 3
Judge Sullivan granted the United States’s motion to intervene, and vacated the default judgment on statutory grounds. Id. at 154, 158-59. He then noted the serious constitutional problems raised by the passage of the congressional provision: first, that “by expressly directing legislation at pending litigation, Congress has arguably attempted to determine the outcome of this litigation,” and second, that “by legislating no more broadly than is
However, mindful of the cardinal principle of avoiding a determination of difficult constitutional questions where unnecessary, Judge Sullivan turned to the question of whether it would be necessary to resolve these issues. He determined that such a resolution would be unnecessary because the Algiers Accords required the dismissal of plaintiffs’ claims. Specifically, he explained:
When a court is presented with a statute and a previously-enacted international agreement that potentially cover the same legal ground, there are three possible relationships between the two: first, the statute can unambiguously fail to conflict with the agreement; second, the statutory language can be ambiguous, and one of its possible interpretations can conflict with the agreement; and third, the statute can unambiguously conflict with the agreement.... If a court is presented with the second situation, a conflict between one possible reading of an ambiguous statute and an earlier international agreement, that court must inquire into Congress’ intent with respect to the abrogation of the international agreement prior to giving force to the statute.... Without a clear expression of Congressional intent to abrogate an agreement, a court must not read an ambiguous statute to so abrogate, and must interpret the statute so as to avoid the conflict. If and only if Congress’ intent to abrogate is clear, may the court interpret the statute so as to conflict with and supercede the earlier agreement.
Id. at 169-70 (internal citations omitted). Judge Sullivan examined whether the FSIA, as amended, (1) unambiguously failed to conflict with the Algiers Accords, (2) was facially ambiguous on the issue of whether it conflicted with the Algiers Accords, or (3) unambiguously conflicted with the Algiers Accords. Noting that “the Flatow Amendment does not on its face create a cause of action against foreign states,” he concluded that the second situation applied:
[T]he fact that an interpretation of these statutory provisions, when considered in the context of legislative intent and purpose, allowing plaintiffs to proceed against Iran is possible, does not end this Court’s inquiry. Because these statutory provisions are at best ambiguous with respect to whether plaintiffs can sue Iran, if Congress has not expressed a sufficiently clear intent to abrogate the Algiers Accords, this Court must construe the statutes at issue to preclude such a suit.
Id. at 174-75 (emphasis in original). Having determined that Congress had failed to provide a clear expression that it intended to abrogate the Algiers Accords, Judge Sullivan declined to construe the FSIA, as amended, in such a way as to permit the Roeder litigation to proceed. Id. at 175-77. He therefore granted the United States’s motion to dismiss, on the grounds that the Algiers Accords prevented the plaintiffs from proceeding with their cause of action.
Although the D.C. Circuit affirmed, it expressly declined to reach the issue of whether the FSIA provided a cause of action against state sponsors of terrorism.
Roeder v. Islamic Republic of Iran,
The holding in
Roeder
is probably best understood as a decision to avoid confronting serious constitutional issues unnecessarily. Judge Sullivan stressed the limited scope of his holding, noting that he was only attempting to determine whether,
on its face,
the FSIA, as amended, unambiguously provided a cause of action against foreign states.
See Roeder,
[E]ven if this Court ultimately agrees with these courts that the purpose and history of this legislation could support reading into this statute a cause of action against a foreign government, these cases in no way support plaintiffs’ claim that the language of these statutes unambiguously requires such a conclusion. Indeed, the previous opinions by this Court demonstrate Congress’ lack of clarity and the lengths to which this Court had to go to interpret these provisions consistently.
Id. at 173 (emphasis in original). In this passage, as elsewhere, Judge Sullivan reiterated the fact that his sole inquiry was whether the statute was facially ambiguous on the subject of whether causes of action against foreign states were permitted. In fact, he concluded:
The Court agrees that it is possible to read these statutory provisions, in the context of legislative history and intent, to provide for a cause of action against Iran. While all these pieces of legislation are less than the epitome of clarity, and their enactment via appropriations rider leaves this Court with scant legislative history to consider, the history that does exist does indicate an intent to allow plaintiffs to proceed with their claims against Iran. This Court will not go so far as to conclude that the text of the Flatow Amendment and Subsection 626(c), separated from any legislative history or intent, unambiguously precludes the cause of action here.
Id. at 174 (emphasis in original).
In sum, the situation in Roeder trapped the Court between Scylla and Charybdis. On the one hand, other judges of this Court had previously determined, based on the legislative history and purpose of the 1996 amendments to the FSIA, that foreign states were liable for acts of state-sponsored terrorism. However, if Judge Sullivan were to find that these amendments, on their face, unambiguously permitted the Roeder plaintiffs’ suit against Iran, he would have been forced to confront two grave separation-of-powers issues: (1) whether the 2001 congressional provisions providing for subject matter jurisdiction should trump an international agreement ratified by the executive branch, and (2) whether the provisions violated Article III by unduly interfering with the authority committed to the discretion of the judicial branch. Not wishing to “unnecessarily venture into the[se] murky waters,” id. at 166, the Court decided that it should first address a preliminary inquiry: are the 1996 amendments to the FSIA facially ambiguous as to whether they allow a cause of action against foreign states? Upon deciding this question in the affirmative, Judge Sullivan declined to issue an unnecessary ruling on important constitutional issues.
In so doing, the Roeder court did not contradict the previous decisions in this Circuit, cited above, that the 1996 amend
under 28 U.S.C. § 1605(a)(7), the sovereign immunity of a foreign state will be abrogated if its “official, employee, or agent” provides material resources to the entity that commits the terrorist act. The Flatow Amendment likewise provides that an “official, employee, or agent” of a foreign state shall be liable if their actions were taken “while acting within the scope of his or her office, employment, or ageney[.]” 28 U.S.C. § 1605(a)(7) note. In light of the identical language used in both statutory provisions, the Court finds that the respon-deat superior implications of section 1605(a)(7) are equally applicable to the Flatow Amendment.... Moreover, by referring to officials, employees, and agents of foreign states, the Flatow Amendment makes clear that they can, in addition to the foreign state itself, be held liable for providing material support to groups that perform terrorist acts.... It also shows that to interpret the text of the Flatow Amendment as denying a cause of action against the foreign state itself would turn the scheme of § 1605(a)(7) on its head. Instead of using the acts of officials, employees, and agents to support liability against the foreign state, the same language would be used in the Flatow Amendment to deny victims of state-sponsored terrorism a cause of action against the responsible foreign state.
Cronin,
This Court now adds two additional reasons. First, with the exception of
Roeder,
the United States has not intervened in FSIA actions against foreign states and attempted to dismiss them on the grounds that the FSIA does not provide a cause of action against foreign states. Nor has the United States filed a statement of interest to that effect in any pending action, even though it is authorized by statute to do so.
Given the great weight of authority supporting the proposition that the FSIA, as amended, affords victims of state-sponsored acts of terrorism a cause of action against the foreign states that sponsored such acts, and the limited scope of Judge Sullivan’s holding in Roeder, this Court reaffirms the holding in Cronin that the FSIA does provide for such a cause of action. Accordingly, defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) will be denied.
B. Plaintiffs’ Motion for Summary Judgment
Plaintiffs have moved for summary judgment in this action. However, as noted above, a number of material facts in this case are highly contested, the most pertinent being the facts presented in plaintiffs’ amended complaint that underlie their torture claims. Because plaintiffs have not demonstrated that all material facts in this case are undisputed, the Court must deny their motion for summary judgment.
III. CONCLUSION
For the reasons herein stated, it is hereby
ORDERED that defendant’s motion to dismiss [42-1] be GRANTED in part and DENIED in part. It is further
ORDERED that defendant’s motion to dismiss be, and hereby is, GRANTED as to each of plaintiffs’ claims for hostage-taking under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(7). It is further
ORDERED that defendant’s motion to dismiss be, and hereby is, DENIED as to defendants’ motion to dismiss the present action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. It is further
ORDERED that defendant’s motion to dismiss be, and hereby is, DENIED as to defendants’ motion to dismiss the present action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim on which relief can be granted. It is further
ORDERED that plaintiffs’ motion for summary judgment [43-1] be, and hereby is, DENIED.
' SO ORDERED.
Notes
. A fuller discussion may be found in
Flatow v. Islamic Republic of Iran,
. The only legislative history of the Flatow Amendment which this Court has located consists of two sentences in the House conference report: "The conference agreement inserts language expanding the scope of monetary damage awards available to American victims of international terrorism. The conferees intend that this section shall apply to cases pending upon enactment of this Act.” H.R. Conf. Rep. 104-863, at 985 (1996).
. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2002, 115 Stat. 748 (2001) ("Amend 28 U.S.C. Section 1605(a)(7)(A) by inserting at the end, before the semicolon, the following: ‘or the act is related to Case Number l:O0CVO311O(ESG) [sic] in the United States District Court for the District of Columbia.' ”). A month later. Congress included in another appropriations act a technical amendment to the first provision. See Department of Defense and Emergency Supplemental Appropriations Act, 115 Stat. 2230 (2001). Although this second provision constituted only a technical amendment to the earlier provision, the conference committee report explained: "The [earlier provision] acknowledges that, notwithstanding any other authority, the American citizens who were taken hostage by the Islamic Republic of Iran in 1979 have a claim against Iran under the Antiterrorism Act of 1996 and the provision specifically allows the judgment to stand for purposes of award [sic] damages consistent with Section 2002 of the Victims of Terrorism Act of 2000 (Public Law 106-386, 114 Stat. 1541).” H.R. Conf. Rep. 107-230 at 422-23.