D.C. Circuit Upholds Dismissal of Claims against Iran Precluded by the Algiers Accords

Circuit Now Silently Divided on Whether Section 1605A Does or Does Not Create Private Right of Action


By Louis M. Solomon

Roeder, et al. v. Islamic Republic of Iran and the U.S., No. 10-5355 (D.C. Cir. July 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law] , affirms the conclusion of the District Court.  We earlier posted on the District Court decision in this case.  It held that even the 2008 amendments to the Foreign Sovereign Immunities Act, 28 U.S.C. sec. 1605A, did not permit the plaintiffs here to sue Iran.  The private international litigation practice issues decided by this otherwise public international law case bear brief mention.

Plaintiffs are Americans taken hostage in Iran in 1979 and their families.  Their earlier lawsuit under an exception to the FSIA was rejected by the District Court, and that decision was affirmed by the D.C. Circuit in 2003.  The Court of Appeals there held that neither the FSIA in general nor the 2002 amendments to the statute abrogated the Algiers Accords, in which the U.S. agreed to bar any civil claims against Iran arising from the incident.  333 F.3d 228 (D.C. Cir. 2003) [enhanced version  / unenhanced version ]

In the current suit, plaintiffs refiled their claims under the 2008 amendments to the FSIA, which the Court of Appeals describes as having "created a generally applicable private right of action against foreign states for state sponsorship of terrorism".  Of note on this specific issue is that, not two months ago, the D.C. Circuit issued a decision in Gates, et al. v. Syrian Arab Republic, et al., No. 08-7118 (D.C. Cir. May 2011) [enhanced version  / unenhanced version ] , discussed in our post titled "D.C. Circuit Holds that Conversion of Claim Under FSIA Section 1605A Does Not Require Re-Service of Process Because the New Statute Doesn't Create a New Cause of Action", in which the Circuit held that "§ 1605A changes the applicable rule of decision, it does not create a new cause of action".

In the current decision, the Circuit adheres to its earlier articulation of the law, that in order to find that the FSIA permitted suit, the court would need to find a "'clear expression' of congressional intent necessary to abrogate an executive agreement".  It found no such clear expression in the enactment of Section 1605A, not because it held that Section 1605A did not create a new, federal cause of action (see above), but because  the filing of a new lawsuit was not what Congress contemplated, only the amendment of a lawsuit that was pending at the time of the statute's enactment.   To be saved, the new suit must "arise from" the same "act of incident" but cannot be "identical to the prior suit or even brought by the same plaintiff".  At very least the statute is ambiguous on the point, says the Court, and "[a]n ambiguous statute cannot supercede an international agreement if an alternative reading is fairly possible".

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