No. 98-1449
In the Supreme Court of the United States
SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA,
ET AL., PETITIONERS
v.
DENICE H. REIN, EXECUTRIX OF THE ESTATE
OF MARK ALAN REIN, DECEASED, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES
DAVID R. ANDREWS
Legal Adviser
JONATHAN B. SCHWARTZ
Deputy Legal Adviser
LINDA JACOBSON
Assistant Legal Adviser
JACK CHOROWSKY
Special Assistant to the
Legal Adviser
Department of State
Washington, D.C. 20520-6310
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
DOUGLAS N. LETTER
FREDDI LIPSTEIN
CARL E. GOLDFARB
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
The brief for the United States will address the following question:
Whether 28 U.S.C. 1605(a)(7) (Supp. III 1997), which provides that countries
designated as state sponsors of terrorism shall not have sovereign immunity
for acts such as aircraft sabotage, is constitutional as applied to this
suit against Libya.
In the Supreme Court of the United States
No. 98-1449
SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA,
ET AL., PETITIONERS
v.
DENICE H. REIN, EXECUTRIX OF THE ESTATE
OF MARK ALAN REIN, DECEASED, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-36a) is reported at 162
F.3d 748. The opinion of the district court (Pet. App. 37a-50a) is reported
at 995 F. Supp. 325.
JURISDICTION
The judgment of the court of appeals was entered on December 15, 1998. The
petition for a writ of certiorari was filed on March 12, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Sovereign immunity for foreign states in federal courts is a privilege
that under the Constitution may be restricted by Congress and the Executive
Branch as they choose. "[F]oreign sovereign immunity is a matter of
grace and comity on the part of the United States, and not a restriction
imposed by the Constitution." Verlinden B. V. v. Central Bank of Nigeria,
461 U.S. 480, 486 (1983).
The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1602 et seq.,
establishes as a general rule that "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" Title 28. See 28 U.S.C.
1604. The instant case involves the application of 28 U.S.C. 1605(a)(7)
(Supp. III 1997), which was added to the FSIA by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, § 221(a), 110
Stat. 1241. Section 1605(a)(7) provides that a foreign state is not immune
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, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of material support
or resources * * * for such an act * * * 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, except that the court shall decline to hear
a claim under this paragraph-
(A) if the foreign state was not designated as a state sponsor of terrorism
under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App.
2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C.
2371) at the time the act occurred, unless later so designated as a result
of such act[.]
28 U.S.C. 1605(a)(7) (Supp. III 1997). Section 1605(a)(7) divests the foreign
state of immunity only if the claimant or the victim was a national of the
United States when the act upon which the claim is based occurred. 28 U.S.C.
1605(a)(7)(B)(ii) (Supp. III 1997). Section 1605(a)(7) "appl[ies] to
any cause of action arising before, on, or after the date of the enactment
of" the AEDPA. AEDPA § 221(c), 110 Stat. 1243 (28 U.S.C. 1605
note (Supp. III 1997)).
2. For nearly 20 years, Libya has been designated by the Executive Branch
as a state sponsor of terrorism pursuant to the Export Administration Act
of 1979, Pub. L. No. 96-72, § 6(i), 93 Stat. 515 (currently codified
as amended as Section 6(j) of the Export Administration Act, 50 U.S.C. App.
2405(j)). See 15 C.F.R. 385.4(d) (1981) (describing Libya, Iraq, People's
Democratic Republic of Yemen, and Syria as "countries that have repeatedly
provided support for acts of international terrorism," and explaining
that exports to those countries are subject to restrictions imposed by,
inter alia, Section 6(i) of the Export Administration Act); 45 Fed. Reg.
1595-1599 (1980).1 The 1996 legislation that added Section 1605(a)(7) to
the FSIA contained explicit congressional findings referring to the previous
designation of Libya as a state sponsor of terrorism. See AEDPA § 324,
110 Stat. 1255 (finding, inter alia, that "the Congress deplores decisions
to ease, evade, or end international sanctions on state sponsors of terrorism,
including the recent decision by the United Nations Sanctions Committee
to allow airline flights to and from Libya despite Libya's non-compliance
with United Nations resolutions," and that "the President should
continue to undertake efforts to increase the international isolation of
state sponsors of international terrorism, including efforts to strengthen
international sanctions, and should oppose any future initiatives to ease
sanctions on Libya or other state sponsors of terrorism").2
3. On December 21, 1988, Pan Am Flight 103 exploded over Lockerbie, Scotland,
killing all 259 persons on board and 11 persons on the ground below. Pet.
App. 10a. In the aftermath of the bombing, the families of some of the victims
filed suit for damages against Libya, Libya's intelligence service, Libya's
state-owned airline, and two Libyan citizens who were employees and agents
of the Libyan government. That suit was dismissed for lack of subject-matter
jurisdiction. Smith v. Socialist People's Libyan Arab Jamahiriya, 886 F.
Supp. 306 (E.D.N.Y. 1995), aff'd, 101 F.3d 239 (2d Cir. 1996), cert. denied,
520 U.S. 1204 (1997). Both the district court and the court of appeals rejected
the plaintiffs' argument that, under the pre-1996 version of the FSIA, Libya
had waived its sovereign immunity by violating "fundamental international
norms" ("jus cogens"). See id. at 313-315; 101 F.3d at 242-245.
The instant suit was filed after the enactment of Section 1605(a)(7) in
1996. The plaintiffs (respondents in this Court) are survivors and representatives
of persons killed aboard Pan Am Flight 103. Pet. App. 9a. Libya, its intelligence
service, and its national airline- the petitioners in this Court-were named
as defendants. Id. at 8a-9a, 10a, 12a-13a, 39a-40a. Respondents alleged
that petitioners were responsible for the destruction of Pam Am Flight 103.
Id. at 39a-40a.
Petitioners moved to dismiss the suit for lack of subject-matter and personal
jurisdiction, and for failure to state claims upon which relief can be granted.
Pet. App. 39a. Petitioners contended, inter alia, that Section 1605(a)(7)
empowers the Secretary of State to determine the jurisdiction of the federal
courts and is therefore unconstitutional. See id. at 41a. The district court
denied the motion to dismiss. Id. at 37a-50a. The court held that Section
1605(a)(7) is constitutional, id. at 40a-45a, 48a; that the court had personal
jurisdiction over the petitioners, id. at 45a-46a; that the designation
of Libya as a state sponsor of terrorism did not deny the petitioners due
process of law with respect to the adjudication of the underlying claims,
id. at 46a-48a; and that no portion of the action should be dismissed for
failure to state a claim, id. at 48a-49a.
4. Petitioners filed an interlocutory appeal from the district court's decision
denying the motion to dismiss. The United States intervened in the case
pursuant to 28 U.S.C. 2403(a) to defend the constitutionality of Section
1605(a)(7). The court of appeals affirmed the district court's determination
that it possessed subject-matter jurisdiction over the suit, and it dismissed
the remainder of the appeal for lack of appellate jurisdiction. Pet. App.
1a-36a.
a. The court of appeals held that as applied to Libya, Section 1605(a)(7)
does not constitute an improper delegation of legislative authority. The
court explained that
[a]t the time that § 1605(a)(7) was passed, Libya was already on the
list of state sponsors of terrorism. No decision whatsoever of the Secretary
of State was needed to create jurisdiction over Libya for its alleged role
in the destruction of Pan Am 103. That jurisdiction existed the moment the
AEDPA amendment became law.
Pet. App. 35a. Because Libya had been designated as a state sponsor of terrorism
before the passage of the 1996 FSIA amendments, the court stated, "[t]he
decision to subject Libya to jurisdiction under § 1605(a)(7) was manifestly
made by Congress itself rather than by the State Department." Ibid.
Since Section 1605(a)(7), as applied to Libya, "creates jurisdiction
directly at the behest of Congress and without any intervening decision
by another body," the court of appeals found "no delegation of
legislative power and, necessarily, no unconstitutional delegation either."
Id. at 36a.3
b. The court of appeals concluded that it lacked appellate jurisdiction
to consider petitioners' other challenges to the district court's ruling.
Pet. App. 14a-30a. The court explained that although "[t]he denial
of Libya's motion to dismiss on the grounds of sovereign immunity is appealable
as a collateral order," id. at 14a, the other claims raised in petitioners'
appeal were not independently subject to interlocutory review, id. at 16a.
The court construed this Court's decision in Swint v. Chambers County Commission,
514 U.S. 35 (1995), as generally directing the courts of appeals "not
to take 'pendent appellate jurisdiction' on interlocutory appeals of issues
not themselves immediately appealable." Pet. App. 16a. Under Swint,
the court of appeals stated, the exercise of pendent appellate jurisdiction
is appropriate only "(a) where an issue is 'inextricably intertwined'
with a question that is the proper subject of an immediate appeal, or (b)
where review of a jurisdictionally insufficient issue is 'necessary to ensure
meaningful review' of a jurisdictionally sufficient one." Id. at 19a.
The court of appeals concluded that none of petitioners' other claims satisfied
those requirements, see id. at 22a-30a, and it accordingly dismissed the
appeal with respect to those claims, id. at 36a.
ARGUMENT
The court of appeals correctly held that 28 U.S.C. 1605(a)(7) (Supp. III
1997) is constitutional as applied to this suit against Libya. That holding
does not conflict with any decision of this Court or of another court of
appeals, and it does not warrant further review.
1. Petitioner challenges Section 1605(a)(7) as an unconstitutional delegation
of power to the Executive Branch to determine which foreign states constitute
"state sponsors of terrorism" and are therefore subject to suit
in the federal courts. See Pet. 13-17. The instant case does not present
that question, however, because the decision to subject Libya to suit for
the acts at issue in this case was as a historical matter made by Congress
and not by the Executive Branch.
As the court of appeals correctly held, Section 1605(a)(7) as applied to
this suit involves "no delegation of legislative power and, necessarily,
no unconstitutional delegation either." Pet. App. 36a. Under Section
1605(a)(7), a foreign state's susceptibility to suit for acts such as aircraft
sabotage generally turns on whether that state was "designated as a
state sponsor of terrorism * * * at the time the act occurred." 28
U.S.C. 1605(a)(7)(A) (Supp. III 1997). Libya had been designated by the
Executive Branch as a state sponsor of terrorism well before the bombing
of Pan Am Flight 103, and before the enactment of Section 1605(a)(7). See
p. 3, supra. Thus, when Congress enacted Section 1605(a)(7), it thereby
divested Libya of sovereign immunity for the acts alleged in this case.
See Pet. App. 35a ("No decision whatsoever of the Secretary of State
was needed to create jurisdiction over Libya for its alleged role in the
destruction of Pan Am 103."); id. at 36a (Section 1605(a)(7) "creates
jurisdiction directly at the behest of Congress and without any intervening
decision by another body."). Moreover, the legislative history suggests
that enactment of Section 1605(a)(7) was intended, at least in part, to
divest Libya of sovereign immunity in suits concerning Pan Am Flight 103.
See note 2, supra. The statute divested Libya of immunity for the acts at
issue in this case by incorporating an action previously taken by the Executive
Branch; because of this particular sequence of events, no subsequent exercise
of delegated authority under Section 1605(a)(7) could either remove or restore
Libya's immunity for those acts. Indeed, even if Executive Branch officials
had removed Libya from the list of state sponsors of terrorism after AEDPA
was enacted, Libya could not assert sovereign immunity in the instant suit,
since a subsequent delisting would not alter the fact that the country was
"designated as a state sponsor of terrorism * * * at the time the act
occurred." 28 U.S.C. 1605(a)(7)(A) (Supp. III 1997).
As the court of appeals observed, an "issue of delegation might be
presented if another foreign sovereign-one not identified as a state sponsor
of terrorism when § 1605(a)(7) was passed-was placed on the relevant
list by the State Department and, on being sued in federal court, interposed
the defense that Libya now raises." Pet. App. 35a. As set forth below,
Section 1605(a)(7) would be constitutional as applied in that setting as
well. But regardless of the proper disposition of that hypothetical case,
application of Section 1605(a)(7) to this suit raises no significant constitutional
concern.4
2. Although the question is not presented in this case, Section 1605(a)(7)
would be constitutional even as applied to a country designated as a "state
sponsor of terrorism" after the enactment of AEDPA. Section 1605(a)
establishes precise and detailed rules concerning the circumstances under
which foreign states will be subject to suit in the federal courts. The
fact that application of those rules depends in part on Executive Branch
determinations creates no constitutional infirmity. To the contrary, Congress's
approach is fully consistent with the significant constitutional role and
expertise of the Executive Branch in the area of foreign relations. Cf.
Dames & Moore v. Regan, 453 U.S. 654, 679-680 (1981) (explaining the
"longstanding practice" by which the President has undertaken
to settle claims of United States nationals against foreign countries);
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319, 320 (1936)
(observing that "the President alone has the power to speak or listen
as a representative of the nation," and that "he, not Congress,
has the better opportunity of knowing the conditions which prevail in foreign
countries").
As the court of appeals recognized, this Court in Jones v. United States,
137 U.S. 202 (1890), "upheld the existence of federal court jurisdiction
even though that jurisdiction depended on a factual determination that had
been delegated to the Department of State." Pet. App. 33a. The Court
in Jones rejected a constitutional challenge to provisions of the Guano
Islands Act of August 18, 1856, Rev. Stat. §§ 5570-5578 (1878
ed.). The Act provided that "any island, rock, or key, not within the
lawful jurisdiction of any other government, and not occupied by the citizens
of any other government, * * * may, at the discretion of the President,
be considered as appertaining to the United States." § 5570. It
further stated that crimes committed in such areas "shall be deemed
committed on the high seas, on board a merchant-ship or vessel belonging
to the United States." § 5576.5 The Court in Jones sustained the
defendant's conviction for a murder committed on Navassa Island, an area
that had been designated pursuant to the Act as "appertaining to the
United States." The Court rejected the defendant's constitutional challenge
to the Act's jurisdictional provisions, explaining that "[w]ho is the
sovereign, de jure or de facto, of a territory is not a judicial, but a
political question, the determination of which by the legislative and executive
departments of any government conclusively binds the judges." 137 U.S.
at 212; see also id. at 224 (concluding that the Act was "constitutional
and valid" and affirming the defendant's conviction).6
The application of other jurisdictional rules also depends in part on determinations
made by the Executive Branch. Diversity jurisdiction under 28 U.S.C. 1332(a)(2)
and (4)-the statutory provisions that vest the federal district courts with
jurisdiction in cases involving citizens of foreign states, and cases in
which foreign states are plaintiffs-is predicated upon Executive Branch
recognition of the relevant foreign state. See, e.g., Matimak Trading Co.
v. Khalily, 118 F.3d 76, 79-85 (2d Cir. 1997) (Hong Kong corporation held
not to be a citizen of a foreign state for purposes of
diversity jurisdiction because the United States did not recognize Hong
Kong as a sovereign state when the suit was filed), cert. denied, 522 U.S.
1091 (1998). This Court's original jurisdiction in cases involving ambassadors
and consuls, see U.S. Const. Art. III, § 2, Cl. 2; 28 U.S.C. 1251(b)(1),
extends only to diplomatic representatives who are accredited in the sole
and absolute discretion of the Executive Branch. See In re Baiz, 135 U.S.
403, 417-418, 428-432 (1890). Diplomatic immunity from suits in United States
courts is determined by the State Department's accreditation of a diplomat.
See Abdulaziz v. Metropolitan Dade County, 741 F.2d 1328, 1331 (11th Cir.
1984). Head-of-state immunity turns on an Executive Branch determination
that a particular individual should be treated as the official head of state.
See, e.g., Lafontant v. Aristide, 844 F. Supp. 128, 131-134 (E.D.N.Y. 1994);
see also Kadic v. Karadzic, 70 F.3d 232, 248 (2d Cir. 1995), cert. denied,
518 U.S. 1005 (1996).7
Petitioners' constitutional claim is particularly misconceived given the
manner in which issues of foreign sovereign immunity were resolved before
the FSIA was enacted in 1976. Until the enactment of the FSIA, "initial
responsibility for deciding questions of [foreign] sovereign immunity fell
primarily upon the Executive acting through the State Department, and the
courts abided by 'suggestions of immunity' from the State Department."
Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 487 (1983); see
also id. at 486 ("this Court consistently has deferred to the decisions
of the political branches-in particular, those of the Executive Branch-on
whether to take jurisdiction over actions against foreign sovereigns and
their instrumentalities"); National City Bank v. Republic of China,
348 U.S. 356, 360 (1955) ("[a]s the responsible agency for the conduct
of foreign affairs, the State Department is the normal means of suggesting
to the courts that a sovereign be granted immunity from a particular suit").
Although the FSIA reflects Congress's determination that the prior case-by-case
approach created unnecessary diplomatic and practical difficulties, see
Verlinden, 461 U.S. at 488, nothing in this Court's decisions suggests that
the pre-FSIA regime was inconsistent with the Constitution.
3. Petitioners also contend (Pet. 18-23) that the court of appeals erred
in holding that it lacked pendent appellate jurisdiction over their other
constitutional and statutory challenges to the district court's decision.
The United States intervened in this case pursuant to 28 U.S.C. 2403(a)
to defend the constitutionality of Section 1605(a)(7). Although the United
States argued in the court of appeals that petitioners' additional constitutional
claims failed on the merits, we took no position regarding the scope of
that court's appellate jurisdiction. Accordingly, the United States will
not address that question at the current stage of the proceedings unless
requested to do so by this Court.
CONCLUSION
With respect to the first question presented, the petition for a writ of
certiorari should be denied.
Respectfully submitted.
DAVID R. ANDREWS
Legal Adviser
JONATHAN B. SCHWARTZ
Deputy Legal Adviser
LINDA JACOBSON
Assistant Legal Adviser
JACK CHOROWSKY
Special Assistant to the
Legal Adviser
Department of State
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
DOUGLAS N. LETTER
FREDDI LIPSTEIN
CARL E. GOLDFARB
Attorneys
MAY 1999
1 The designation of Libya and other countries as state sponsors of terrorism
under the Export Administration Act and other federal statutes has the effect,
inter alia, of triggering restrictions on exports of arms and dual-use technology,
as well as a variety of prohibitions on the provision of foreign assistance
and trade benefits. See, e.g., 50 U.S.C. App. 2405 (1994 & Supp. II
1996); 22 U.S.C. 2349aa-9, 2371.
2 Indeed, the legislative history suggests that Section 1605(a)(7) was intended
at least in part to subject Libya and its agencies and instrumentalities
to civil liability for the bombing of Pan Am Flight 103 in December 1988-the
terrorist act that is at issue in this case. See 142 Cong. Rec. 4551, 4558
(1996) (remarks of Rep. Ros-Lehtinen) (introducing letter supporting the
legislation from Victoria Diaz Cummock, president of the Families of Pan
Am 103/Lockerbie); id. at 4568 (remarks of Rep. Fox); id. at 7790 (remarks
of Sen. Brown); id. at 7801 (remarks of Sen. Dole) (introducing letter supporting
the legislation from Victoria Diaz Cummock, president of the Families of
Pan Am 103/Lockerbie).
3 The court of appeals observed that an "issue of delegation might
be presented if another foreign sovereign-one not identified as a state
sponsor of terrorism when § 1605(a)(7) was passed-was placed on the
relevant list by the State Department and, on being sued in federal court,
interposed the defense that Libya now raises." Pet. App. 35a. The court
declined to resolve the question whether Section 1605(a)(7) would be constitutional
as applied to such a case. See id. at 35a-36a. The court noted, however,
that this Court in Jones v. United States, 137 U.S. 202 (1890), "upheld
the existence of federal court jurisdiction even though that jurisdiction
depended on a factual determination that had been delegated to the Department
of State." Pet. App. 33a.
4 Petitioners also argue (Pet. 14) that Section 1605(a)(7) violates principles
of separation of powers. Assuming that a foreign state may raise a separation-of-powers
argument, but see, e.g., Metropolitan Wash. Airports Auth. v. Citizens for
the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 272 (1991) ("The
ultimate purpose of [the] separation of powers is to protect the liberty
and security of the governed."), that argument provides no basis for
this Court's review. Petitioners do not articulate an independent basis
for their separation-of-powers claim, but simply contend that Congress violated
separation-of-powers principles by impermissibly delegating legislative
power to the Executive Branch. See Pet. 14-17. That claim lacks merit for
the reasons stated in the text.
Petitioners suggest without significant elaboration (see Pet. 17) that Section
1605(a)(7) violates the equal protection component of the Due Process Clause
by treating states designated as state sponsors of terrorism differently
from states not so designated, and that use of the term "state sponsor
of terrorism" as a non-reviewable prerequisite for liability under
Section 1605(a)(7) violates their right to a fair trial under the Fifth
Amendment. Those claims are not fairly included within the questions presented
in the petition, and in any event they are without merit. Equal protection
principles cannot plausibly be thought to preclude Legislative and Executive
Branch officials from drawing distinctions between different foreign states,
or to require (see Pet. 17) that such distinctions be subjected to heightened
judicial scrutiny. See, e.g., Baker v. Carr, 369 U.S. 186, 211 (1962) ("resolution
of [foreign relations] issues frequently turn[s] on standards that defy
judicial application, or involve[s] the exercise of a discretion demonstrably
committed to the executive or legislature"); note 7, infra (explaining
that foreign states' access to United States courts has traditionally been
committed to the unreviewable discretion of Executive Branch officials).
And because Section 1605(a)(7) addresses only the question of foreign states'
susceptibility to suit, rather than establishing substantive or procedural
rules for adjudicating those suits that are found to be cognizable, it cannot
have the effect of "depriving Libya of a fair trial on the merits."
Pet. 17; see Pet. App. 46a (district court explains that designation of
particular countries as state sponsors of terrorism "in no way affects
the merits of the underlying claims or the liability of foreign states against
whom actions may be maintained").
5 Federal law currently defines the term "special maritime and territorial
jurisdiction of the United States" to include "[a]ny island, rock,
or key containing deposits of guano, which may, at the discretion of the
President, be considered as appertaining to the United States." 18
U.S.C. 7(4).
6 The Court also held that the President's authority under the Act to identify
islands "appertaining to the United States" was "a strictly
executive power, affecting foreign relations," that could be exercised
by the Department of State on the President's behalf in the absence of a
contrary statutory directive. 137 U.S. at 217.
7 The Court has also held that a foreign state can have access to United
States courts only if it has been recognized by the Executive Branch. See
Pfizer Inc. v Government of India, 434 U.S. 308, 319-320 (1978) ("It
has long been established that only governments recognized by the United
States and at peace with us are entitled to access to our courts, and that
it is within the exclusive power of the Executive Branch to determine which
nations are entitled to sue."); Guaranty Trust Co. v. United States,
304 U.S. 126, 136-138 (1938); see also United States v. Pink, 315 U.S. 203,
229-230 (1942).