Appeal from the United States District Court for the District of Columbia (No. 01cv01496)
Before: Edwards, Randolph, and Garland, Circuit Judges.
The opinion of the court was delivered by: Edwards, Circuit Judge
This case involves a lawsuit brought against the Islamic Republic of Iran ("Iran") under the terrorism exception, 28 U.S.C. § 1605(a)(7), to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602-11 (2000). The plaintiffs in the suit are the adult children and siblings of Joseph J. Cicippio, a victim of terrorist hostage-taking. Joseph Cicippio was abducted in 1986 by Hizbollah, an Islamic terrorist organization that receives material support from Iran. He was held hostage until 1991, confined in inhumane conditions and frequently beaten. In 1996, Joseph Cicippio and his wife sued Iran for the tortious injuries they sustained as a result of Mr. Cicippio's kidnaping, imprisonment, and torture. Iran failed to respond to the complaint and default was entered on November 13, 1997. The case was tried ex parte and, on August 27, 1998, the District Court entered judgment against Iran in favor of Mr. and Mrs. Cicippio in the amount of $30 million. Cicippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62, 64, 70 (D.D.C. 1998). No appeal was taken.
In 2001, Joseph Cicippio's children and siblings sued Iran for the intentional infliction of emotional distress and loss of solatium they suffered as a result of Mr. Cicippio's ordeal.
The Iranian defendants failed to respond to the complaint and the District Court entered default on January 2, 2002. The Cicippios filed a motion for summary judgment on January 10, 2002. Subsequently, on January 24, 2002, plaintiffs moved to consolidate their suit with Mr. and Mrs. Cicippio's case, which by then had been closed. On June 21, 2002, the District Court denied the motions for summary judgment and consolidation. The court also sua sponte dismissed the Cicippios' complaint under Federal Rules of Civil Procedure 12(b)(6) and 12(h)(3), holding that "the FSIA, as amended, does not confer subject matter jurisdiction upon it to entertain claims for emotional distress and solatium brought by claimants situated as are these plaintiffs upon the allegations of their complaint." Cicippio-Puleo v. Islamic Republic of Iran, Civ. No. 01-1496, slip op. at 2, (D.D.C. June 21, 2002), reprinted in Appendix ("App.") 3, 4. Joseph Cicippio's children and siblings now appeal. Responding to our request, the Justice Department has filed a brief as amicus curiae stating the position of the United States. The Government's position is that neither section 1605(a)(7) of the FSIA nor the Flatow Amendment, 28 U.S.C. § 1605 note, creates a private cause of action against foreign governments for acts of hostage taking or torture.
We affirm the judgment of the District Court. Section 1605(a)(7) of the FSIA abrogates foreign sovereign immunity and provides jurisdiction in specified circumstances, but it does not create a private cause of action. By its clear terms, the Flatow Amendment provides a private right of action only against individual officials, employees, and agents a foreign state, but not against a foreign state itself. Plainly, neither section 1605(a)(7) nor the Flatow Amendment, separately or together, establishes a cause of action against foreign state sponsors of terrorism. Therefore, the Cicippios' suit cannot proceed on these grounds. However, because the Cicippios' suit was filed in the wake of judgments in favor of Mr. and Mrs. Cicippio and other hostage victims, they may have been misled in assuming that the Flatow Amendment afforded a cause of action against foreign state sponsors of terrorism. We therefore affirm the judgment of the District Court, but remand the case to allow plaintiffs an opportunity to amend their complaint to state a cause of action under some other source of law. We reserve judgment, however, on whether the Cicippios have any viable basis for an action against Iran, leaving that issue to the District Court in the first instance.
On the morning of September 12, 1986, Joseph. J. Cicippio was kidnaped in Beiruit, Lebanon, by the terrorist group Hizbollah, an agent of Iran's Ministry of Information and Security ("MOIS"). At the time of his abduction, Mr. Cicippio was comptroller of the American University of Beiruit. Hizbollah held him hostage for 1,908 days. During that time, he was randomly beaten, confined in rodent- and scorpioninfested cells, and bound by chains. He suffered from numerous medical problems emanating from the inhumane treatment that he experienced during his captivity. At some point after Mr. Cicippio was taken hostage, he was forced to undergo major surgery for an unidentified abdominal condition that has left a ten-inch scar on his abdomen. See Cicippio, 18 F. Supp. 2d at 66.
In 1996, Joseph Cicippio filed suit against Iran under the "terrorism exception" to the FSIA, 28 U.S.C. § 1605(a)(7), and the Flatow Amendment, 28 U.S.C. § 1605 note. His lawsuit was joined by his wife, Elham Cicippio, two other hostage victims, and the wife of one of the other victims. The Iranian defendants did not respond to the complaint and were found in default. The case was tried ex parte and, on August 27, 1998, the District Court rendered a judgment for Joseph Cicippio in the amount of $20 million in damages for lost wages and opportunities and compensatory damages for pain and suffering and mental anguish, and $10 million for Mrs. Cicippio in damages for loss of her husband's society and companionship and mental anguish. See Cicippio, 18 F. Supp. 2d at 64, 70. Iran never entered an appearance in the case and no appeal was taken from the judgment of the District Court.
The instant case arises from a lawsuit brought in 2001 by Joseph Cicippio's seven adult children and seven siblings against Iran and MOIS for the intentional infliction of emotional distress and loss of solatium they sustained as a result of Mr. Cicippio's ordeal. The suit was based on claims purporting to arise under section 1605(a)(7) and the Flatow Amendment. On January 2, 2002, after Iran failed to respond to the complaint, the District Court entered a default judgment for the Cicippio children and siblings. On January 10, 2002, the Cicippios filed a motion for summary judgment. They subsequently filed a motion to consolidate their case with Mr. and Mrs. Cicippio's lawsuit against Iran, which by then had been closed. The motion for summary judgment included affidavits from the children and siblings establishing that Mr. Cicippio's captivity caused them to suffer from emotional distress by virtue of the harm done to him.
B. The Statutory Framework
The FSIA provides that "[s]ubject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter." 28 U.S.C. § 1604. Under the FSIA, foreign states enjoy immunity from suit in U.S. courts unless Congress waives immunity under an enumerated exception. In 1996, as part of the comprehensive Antiterrorism and Effective Death Penalty Act ("AEDPA"), Congress enacted the "terrorism exception" to the FSIA, waiving the immunity of foreign states and their agents in any case
in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extra-judicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency ...
28 U.S.C. § 1605(a)(7). This provision only waives the immunity of a foreign state defendant that has been specifically designated by the State Department as a "state sponsor of terrorism," 28 U.S.C. § 1605(a)(7)(A), and does not apply if
(i) the act occurred in the foreign state against which the claim has been brought and the claimant has not afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration; or (ii) neither the claimant nor the victim was a national of the United States (as that term is defined in section 101(a)(22) of the Immigration and Nationality Act) when the act upon which the claim is based occurred.
28 U.S.C. § 1605(a)(7)(B).
Five months after the passage of AEDPA, Congress enacted a separate provision, titled Civil Liability for Acts of State Sponsored Terrorism, which created a private right of action against officials, employees, and agents of foreign states for the conduct described in § 1605(a)(7). See Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, Div. A, Title I, § 101(c) [Title V, § 589], 110 Stat. 3009-172 (codified at 28 U.S.C. § 1605 note). This provision is known as the "Flatow Amendment," in recognition of the family of Alisa Flatow, a woman who died as the result of a terrorist bombing in Israel. See Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 12 (D.D.C. 1998). The Flatow Amendment provides:
(a) An official, employee, or agent of a foreign state designated as a state sponsor of terrorism designated under section 6(j) of the Export Administration Act of 1979 [section 2405(j) of the Appendix to Title 50, War and National Defense] 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 [subsec. (a)(7) of this section] 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) [subsec. (a)(7) of this section].
It is undisputed that the Flatow Amendment permits U.S. nationals to pursue a private right of action for terrorism against officials, employees, and agents of designated foreign states acting in their personal capacities. At issue here is whether section 1605(a)(7) and the ...