By Louis M. Solomon
Gates, et al. v. Syrian Arab Republic, et al., No. 08-7118 (D.C. Cir. May 2011) (consolidated with
09-7108), [enhanced version
available to lexis.com subscribers
version available from lexisONE Free Case Law] involves the appeal from the
District Court's treatment of the gruesome case of two murdered U.S.
contractors in Iraq by Al-Zarqawi the his terrorist organization, al-Tawid
wal-Jihad (know in Iraq as al-Queda). The provisions of the Foreign Sovereign
Immunities Act (FSIA), 28 U.S.C. § 1604, at issue in the case address the
potential for claims against non-U.S. sovereigns that provide material support
for hostage taking or state-sponsored terrorism. Syria has been designated a
state sponsor of terrorism since 1979.
The Circuit summarized the history
of the FSIA, in particular the modification to the statute by the repeal of §
1605(a)(7) and its replacement with § 1605A. In the District Court, the
plaintiffs sought by motion in February 2008 to avail themselves of new §
1605A. Syria did not respond and hence defaulted on the original summons
and complaint when the claims were under § 1605(a)(7), which did not provide a
federal cause of action, and the question was whether service needed to be made
anew when the claim was changed to one under § 1605A, which other courts have
stated created a federal cause of action and which, unlike the earlier
statute, allowed for punitive damages.
The Court of Appeals addressed the
following issues that are of significance to the development of international
First, the Circuit gave short shrift
to a welter of arguments found to be foreclosed by prior Circuit and Supreme
Court decisions, including that the FSIA was unconstitutional, that the FSIA
conflicts with Article 2 of the U.N. Charter, international laws, and
international norms, and that the claim presented a non-justiciable political
Second, the Circuit held that the
plaintiffs could avail themselves of the new statute without serving a new
pleading. The Court relied on § 1608, upholding the District Court's finding
that Syria had indeed been served initially in a proper manner and that service
once the case was converted to one under § 1605A was not a new claim for relief
and could be done by motion rather than by service of a new complaint.
Third, in making ruling that § 1605A
did not create a new cause of action, the Court drew a distinction between
creation of a new federal claim or cause of action and "changes [in] the
applicable rule of decision". The Court cited nothing to support that
distinction. As the Court explained:
The statutory language suggests the
converted claim is not a 'new claim' requiring an amended pleading.
. . . § 1605A changes the applicable rule of decision, it does not create a new
cause of action. Section 1605A provides for a federal cause of action, whereas
§ 1605(a)(7) relied upon state law claims. Both sound in tort, however. And
both claims arise from the same underlying acts of terrorism. It is therefore
the applicable rule of decision that is new when an action is converted under
section 1083, not the claim itself.
The distinction does not seem
necessary to the Court's holding. See also our postings on other §
1605A cases, referring to the statute's creation of a new federal cause of
action, by, for example, not requiring reliance on state law and by providing
for punitive damages.
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