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Kilburn v. Socialist People's Libyan Arab Jamahiriya

July 30, 2004


Appeal from the United States District Court for the District of Columbia (No. 01cv01301)

Before: Ginsburg, Chief Judge, and Garland and Roberts, Circuit Judges.

The opinion of the court was delivered by: Garland, Circuit Judge

Argued May 14, 2004

This case arises out of the kidnaping and murder of an American citizen in Lebanon between November 1984 and April 1986. Libya appeals from the denial of its motion to dismiss the case, arguing that sovereign immunity protects it from suit and that the plaintiff lacks a viable cause of action. We reject the first contention, concluding that the "terrorism exception" of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(7), strips Libya of the shield of sovereign immunity. We decline to exercise appellate jurisdiction over the second.


Blake Kilburn brought suit against the Socialist People's Libyan Arab Jamahiriya (Libya), the Libyan External Security Organization (LESO), the Islamic Republic of Iran, and the Iranian Ministry of Information and Security, seeking damages on his own behalf and as executor of the estate of his brother, Peter Kilburn (together, the plaintiff), for Peter's kidnaping, sale, torture, and death. The allegations of the complaint, as further detailed in district court pleadings and a declaration, are as follows.

Peter Kilburn was an American citizen who lived in Lebanon and worked as an instructor and librarian at the American University of Beirut. On November 30, 1984, he was abducted from his apartment; Hizbollah, a terrorist organization funded by Iran, claimed responsibility. In late 1985, the American government was approached by an intermediary who claimed to be acting on behalf of Kilburn's captors and who sought a ransom for his return. For the next several months, the United States negotiated for Kilburn's release.

On April 14, 1986, while Kilburn was still in captivity, the United States conducted airstrikes on Tripoli, Libya, in retaliation for Libya's involvement in the bombing of a Berlin nightclub that killed two American soldiers. Thereafter, Libya made it known that it wanted to purchase an American hostage to murder in revenge for the airstrikes. Sometime between April 14 and 17, the Arab Revolutionary Cells (ARC), a terrorist organization sponsored by Libya, bought Kilburn from Hizbollah for approximately $3 million and subsequently tortured him. On or about April 17, 1986, ARC murdered Kilburn and left his body by the side of a road near Beirut, alongside the bodies of two British hostages. In a note found nearby, ARC claimed responsibility.

Blake Kilburn's complaint, filed on June 12, 2001, alleged that his brother was the victim of hostage taking, torture, and extra-judicial killing, for which the defendants were responsible. The complaint sought recovery through multiple causes of action, including the Flatow Amendment, 28 U.S.C. § 1605 (note), and theories of wrongful death, battery, assault, false imprisonment, slave trafficking, torture, and intentional infliction of emotional distress. Although the complaint did not specify the legal sources of the latter causes of action, later pleadings asserted that they arose under state common law, foreign law, and international law, and that additional federal statutory causes of action might also be available.

The Iranian defendants did not appear, and the plaintiff sought a default judgment against them. That motion remains pending in the district court. The Libyan defendants did appear, and the parties agreed to a limited course of jurisdictional discovery. Thereafter, the Libyan defendants filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), contending that their sovereign immunity deprived the court of subject-matter jurisdiction, and pursuant to Rule 12(b)(6), contending that the plaintiff had failed to state a claim upon which relief could be granted. The district court denied both requests. Sua sponte, the court also considered a question not raised by the parties -- whether the plaintiff could assert a claim for punitive damages against defendant LESO -- and answered in the affirmative. This appeal followed.*fn1


We begin with the question of the Libyan defendants' sovereign immunity. The district court's decision to deny their motion to dismiss plainly did not end the case; to the contrary, it permitted the case to go forward. Ordinarily, that would preclude our hearing this interlocutory appeal, because our jurisdiction is generally confined to "final decisions of the district court." 28 U.S.C. § 1291; see id. § 1292 (permitting interlocutory appeals in certain circumstances not present here). Under the collateral order doctrine, however, an order qualifies as "final" under § 1291 if it: "(1) conclusively determine[s] the disputed question, (2) resolve[s] an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment." Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (internal quotation marks omitted); see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). The denial of a motion to dismiss on the ground of sovereign immunity satisfies all three criteria, and is therefore subject to interlocutory review. See, e.g., Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 92 (D.C. Cir. 2002); Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1025- 26 (D.C. Cir. 1997); Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990). In particular, with respect to the last criterion, an "order denying dismissal for immunity is effectively unreviewable on appeal because `sovereign immunity is an immunity from trial and the attendant burdens of litigation, and not just a defense to liability on the merits.' " Jungquist, 115 F.3d at 1026 (quoting Foremost-McKesson, 905 F.2d at 443).

Under the FSIA, a foreign state is immune from the jurisdiction of American courts unless the case falls within one of a list of statutory exceptions (or as provided by international agreements). 28 U.S.C. § 1604; see id. §§ 1605-1607. If no exception applies, the district court lacks subject matter jurisdiction. Id. § 1604. If an exception does apply, the district court has jurisdiction. Id. § 1330(a); see World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1161 (D.C. Cir. 2002); Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000).

Congress amended the FSIA in the Antiterrorism and Effective Death Penalty Act of 1996, adding an additional exception colloquially known as the "terrorism exception." That exception denies sovereign immunity 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 exception applies only if three additional criteria are also satisfied: the foreign state was designated a "state sponsor of terrorism" at the time the act occurred; the foreign state was given a reasonable opportunity to arbitrate a claim regarding an act that occurred within the state's borders; and the claimant or victim was a national of the United States. Id. § 1605(a)(7)(A), (B). There is no dispute that these criteria are satisfied here. The only question is whether the plaintiff's claims fall within the main body of the exception, upon which the jurisdiction of the district court depends.

"In order to preserve the full scope of sovereign immunity, the district court must make the `critical preliminary determination' of its own jurisdiction as early in the litigation as possible." Phoenix Consulting, 216 F.3d at 39 (quoting Foremost-McKesson, 905 F.2d at 449). In making that determination, the nature of the court's inquiry depends on the nature of the defendant's challenge. "If the defendant challenges only the legal sufficiency of the plaintiff's jurisdictional allegations, then the district court should take the plaintiff's factual allegations as true and determine whether they bring the case within any of the [FSIA] exceptions to immunity invoked by the plaintiff." Id. at 40. But if the defendant challenges "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." Id.

In their motion to dismiss, the Libyan defendants challenged both the legal and factual sufficiency of the plaintiff's claims. For the sake of clarity, we address these challenges separately in Parts III and IV. Our ...

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