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Case 1:06-cv-00734-RBW Document 24 Filed 12/17/2007 Page 1 of 67

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA




v.



Plaintiff,





JOSE MANUEL VEGA FRANQUI, et al.,
















SYRIAN ARAB REPUBLIC, et al.,












Defendants.



















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Case No. 1:06-CV-00734-RBW

PLAINTIFF’S MOTION IN OPPOSITION

TO DEFENDANT’S MOTION TO DISMISS AND

ACCOMPANYING MEMORANDUM OF POINTS AND AUTHORITIES





COME NOW, the Plaintiffs, by and through counsel, Joshua M. Ambush, of the Law

Offices of Joshua M. Ambush, LLC, and hereby file this Plaintiff’s Motion in Opposition to

Libyan Defendant’s Motion to Dismiss and Accompanying Memorandum of Points and

Authorities.

Plaintiff has shown sufficient, conclusive facts for this court to establish jurisdiction over

Libyan Defendants, and equitable tolling principles apply to toll the statute of limitations on

Plaintiff’s claims, which are timely as a result.

In support of this Motion in Opposition to Defendants’ Motion to Dismiss, Plaintiffs

respectfully refers this Court to the attached Memorandum of Points and Authorities, Affidavit of

Joshua M. Ambush, and proposed Order.

Respectfully submitted,

/s/ Joshua M. Ambush
____________________________________
Joshua M. Ambush (Md. Bar # 27025)
Law Offices of Joshua M. Ambush, LLC
Hilton Plaza



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Case 1:06-cv-00734-RBW Document 24 Filed 12/17/2007 Page 2 of 67

1726 Reisterstown Road
Suite 206
Baltimore, Maryland 21208
410-484-2070
410-484-9330 (facsimile)
[email protected]




CERTIFICATE OF SERVICE


I hereby certify that a true and accurate copy of the foregoing Plaintiffs’ Motion in Opposition to
Defendant’s Motion to Dismiss and Accompanying Memorandum of Points and Authorities was
delivered via electronic filing and/or first class mail postage prepaid, to Thomas J. Whalen,
Esquire, Mark A. Johnston, Esquire, Eckert Seamans Cherin & Mellott, LLC, 1747 Pennsylvania
Avenue, N.W., Twelfth Floor, Washington, D.C. 20006; Wendy West Feinstein, Eckert Seamans
Cherin & Mellott, LLC, U.S. Steel Tower, 44th Floor, 600 Grant Street, Pittsburgh, PA 15219,
this 17th day of December, 2007.


/s/ Joshua M. Ambush
_____________________________



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Case 1:06-cv-00734-RBW Document 24 Filed 12/17/2007 Page 3 of 67

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA




v.



JOSE MANUEL VEGA FRANQUI, et al.,
















SYRIAN ARAB REPUBLIC, et al.,







Plaintiff,







Defendants.


















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Case No. 1:06-CV-00734-RBW





MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF PLAINTIFFS’ MOTION IN OPPOSITION

TO DEFENDANT’S MOTION TO DISMISS THE COMPLAINT














(This page intentionally left blank; Memorandum continues on page 15)

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Case 1:06-cv-00734-RBW Document 24 Filed 12/17/2007 Page 4 of 67

TABLE OF CONTENTS































Page













I. INTRODUCTION





II. STATEMENT OF FACTS






















a. BACKGROUND

b. DEFENDANT’S SPONSORSHIP AND MATERIAL

















SUPPORT OF TERRORISM



III. STATUTORY FRAMEWORK



IV. PLAINTIFF’S ARGUMENTS

























a. PLAINTIFF HAS SUBJECT MATTER JURISDICTION

OVER DEFENDANTS BECAUSE LIBYA WAS
ADDED TO THE STATE-SPONSOR OF TERRORISM
LIST FOR BROAD SUPPORT OF INTERNATIONAL
TERRORISM













i. DEFENDANT’S RELIANCE ON ROEDER IS
MISPLACED, AS ROEDER IS NOT AKIN TO
THE CASE AT BAR, AND HELPS PLAINTIFFS’

CASE












b. LIBYA’S DESIGNATION TO THE STATE-SPONSOR

OF TERRORISM LIST AROSE FROM THE U.S.
GOVERNMENT’S EFFORTS TO TRACK AND
DOCUMENT ITS MATERIAL SUPPORT OF
TERRORISM OVER MANY YEARS







i. LIBYA WAS ADDED TO THE STATE-SPONSOR

OF TERRORISM LIST FOR REPEATED
SUPPORT OF TERRORIST ACTS





ii. THE U.S. GOVERNMENT BEGAN TO TRACK
LIBYAN AID AND SUPPORT TO TERRORIST
GROUPS AS FAR BACK AS 1969







4













































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26

29

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Case 1:06-cv-00734-RBW Document 24 Filed 12/17/2007 Page 5 of 67

iii. THE U.S. GOVERNMENT DESIGNATED LIBYA

ON THE LIST OF STATE SPONSORS OF
TERRORISM FOR REPEATED ACTS OF
TERRORISM THAT INCLUDED THE LOD
AIRPORT MASSACRE OF 1972









iv. LIBYAN AID FOR TERRORIST ACTIVITY WAS
NOT LIMITED TO THE PLO OR THE PFLP, BUT

ALSO SUPPORTED THE BSO







c. GENERAL CONCLUSORY ALLEGATIONS WHICH

ESTABLISH LIBYA’S MATERIAL SUPPORT TO
TERRORIST SUFFICIENTLY ESTABLISH THAT
LIBYA PROXIMATELY CAUSED THE TERRORIST
INCIDENT AT LOD AIRPORT







i. LIBYA ACTIVELY AND OPENLY PROVIDED
MATERIAL SUPPORT AND RESOURCES TO
TERRORIST GROUPS









ii. LIBYA CANNOT CLAIM SOVEREIGN





IMMUNITY, SINCE IT HAS PROVIDED
MATERIAL SUPPORT TO TERRORIST GROUPS
AND PROXIMATELY CAUSED TERRORIST
ATTACKS















d. PLAINTIFF’S CLAIMS ARE NOT BARRED BY

STATUTE OF LIMITATIONS PRINCIPLES DUE TO
THE EQUITABLE TOLLING OF DEFENDANT’S
SOVEREIGN IMMUNITY UNDER § 1605(f)




i. ANY CALCULATION OF THE STATUTE OF

LIMITATIONS MUST INCLUDE EQUITABLE
TOLLING PRINCIPLE













ii. THE FSIA IS MODELED AFTER THE TVPA,

WHICH REQUIRES THAT EQUITABLE
TOLLING PRINCIPLES COUNT AGAINST THE
LIMITATIONS PERIOD










iii. THE FULL 10 YEAR LIMITATIONS PERIOD

MUST BE ARRESTED FOR EQUITABLE
TOLLING PRINCIPLES










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47

48

49

52

54





Case 1:06-cv-00734-RBW Document 24 Filed 12/17/2007 Page 6 of 67

e. EXTENDING THE LIMITATIONS PERIOD FOR

PLAINTIFFS, FOR ONLY A “REASONABLE TIME”
UNDER VINE, IS UNREASONABLE







i. PLAINTIFF FILED THEIR CLAIMS WITHIN A
“REASONABLE PERIOD” AFTER EQUITABLE
TOLLING EXPIRED AND THE STATUTE OF
LIMITATIONS BEGAN











ii. A SOVEREIGN’S IMMUNITY DOES NOT COUNT

AGAINST THE FSIA LIMITATIONS PERIOD
WHICH GAVE PLAINTIFFS 10 YEARS, OR UNTIL
APRIL 2006, TO FILE THEIR CLAIMS





V. LIBYAN DEFENDANT’S MOTION TO DISMISS SHOULD BE


DENIED























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Case 1:06-cv-00734-RBW Document 24 Filed 12/17/2007 Page 7 of 67


CASES

TABLE OF AUTHORITIES





Case

Adair v. Johnson,







216 F.R.D. 183 (D.D.C. 2003)


Allen v. Chicago Transit Authority,





317 F.3d 696 (7th Cir. 2003) (Posner, J.)


American Pipe & Construction, Co. v. Utah,


414 U.S. 538 (1974)






Arce v. Garcia,

434 F.3d 1254 (11th Cir. 2006)














Argentine Republic v. Amerada Hess Shipping Corp.,

488 U.S. 428 (1989)








Atchison, Topeka & Santa Fe Ry. Co., v. I.C.C.,

851 F.2d 1432 (D.C.Cir.1988)






















Baker v. Great Socialist People’s Libyan Arab Jamahiriya,


2006 WL 3208662 (D.D.C.2006)






Baker v. Henderson,

150 F. Supp. 2d 17 (D.D.C. 2001)


Beverly Enters., Inc. v. Herman,

50 F. Supp. 2d 7 (D.D.C. 1999)


Bragdon v. Abbott,

524 U.S. 624 (1998)
























Buonocore v. Great Socialist People’s Libyan Arab Jamahiriya,

2007 U.S. Dist. LEXIS 49031 (D.D.C.2007)


Burnett v. New York Railroad Co.,

380 U.S. 424 (1965)






Cada v. Baxter Healthcare Corp.,

920 F.2d 446 (7th Cir. 1990)


















7





















































Page(s)







55

54

59

49, 53, 57





16

59

19, 60







55

18

53

48, 61

49-51, 61-62



55, 59

Case 1:06-cv-00734-RBW Document 24 Filed 12/17/2007 Page 8 of 67

Cogburn v. U.S.A.,

717 F.Supp.958, 963 (D.Mass.1989)


Coles v. Harvey,

2007 WL 63666 (D.D.C.2007)








Collett v. Socialist People’s Libyan Arab Jamahiriya,

362 F. Supp.2d 230 (D.D.C.2005)


Conley v. Gibson,

355 U.S. 41 (1957)






Connos v. Hallmark & Son Coal Company,

935 F.2d 336 (D.C.Cir.1991)


Daliberti v. Republic of Iran,

97 F. Supp.2d 38 (D.D.C. 2000)


Dames & Moore v. Regan,
453 U.S. 654 (1981)




Dammarell v. Iran,



281 F.Supp.2d 105 (D.D.C.2003)


Dammarell v. Islamic Rep. of Iran,













370 F.Supp.2d 218, 223 (D.D.C.2005)
















Doe v. Blue Cross & Blue Shield United of Wisconsin,

112 F.3d 869, 877 (7th Cir.1997)


Duncan v. Walker,

533 U.S. 167 (2001)






EEOC v. O’Grady,

857 F.2d 383 (7th Cir.1988)




Flatow v. Islamic Rep. of Iran,

999 F. Supp. 1 (D.D.C. 1998)


















Foremost-McKesson, Inc. v. Islamic Republic of Iran,

905 F.2d 438 (D.C.Cir.1990)


Herbert v. Nat'l Acad. of Science,

974 F.2d 192 (D.C. Cir. 1992)












































8





















































59

63

47, 57, 62

18, 63

















58

18

24

26

19

54

50

61

17, 38, 51, 55, 57, 62













19

18

Case 1:06-cv-00734-RBW Document 24 Filed 12/17/2007 Page 9 of 67

Hilao v. Estate of Marcos,

103 F.3d 767 (9th Cir.1996)


Hishon v. King & Spaulding,


467 U.S. 69 (1984)








Holy Land Found. for Relief & Dev. v. Ashcroft,

333 F.3d 156 (D.C. Cir. 2003)






















Int’l Union, United Auto., Aerospace and Agr. Implement
Workers of America (UAW), AFL-CIO v. Hoosier Cardinal Corp.,


383 U.S. 696, 708 (1966)










Irwin v. Dep’t of Veterans Affairs,

498 U.S. 89 (1990)






Jean v. Dorelien,

431 F.3d 776 (11th Cir. 2005)


Jenco v. Islamic Rep. of Iran,

154 F.Supp.2d 27 (D.D.C.2001)


Jones v. R.R. Donnelley & Sons Co.,


541 U.S. 369 (2004)




Justice v. United States,

6 F.3d 1474 (11th Cir. 1993)






















Kilburn v. Socialist People’s Libyan Arab Jamahiriya,

376 F.3d 1123 (D.C.Cir.2004)


Kowal v. MCI Communications Corp.,

16 F.3d 1271, (D.C.Cir.1994)


Macharia v. United States,

334 F.3d 61 (D.C. Cir. 2003)






























Macquarrie v. Great Socialist People’s Libyan Arab Jamahiriya,

C.A.No 04-176 (EGS)








Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit,

547 U.S. 71 (2006)






Nelson v. American National Red Cross,

26 F.3d 193 (D.C.Cir.1994)





















9





































57

63

19, 64





51

59



53, 57



















18

51

60

38-39, 47

18, 63

19, 64

18, 52, 54, 61









53

58

Case 1:06-cv-00734-RBW Document 24 Filed 12/17/2007 Page 10 of 67

Oshiver v. Levin, Fishbein, Sedran & Berman,

38 F.3d 1380 (3d Cir. 1994)


Ott v. Midland-Ross Corp.,

600 F.2d 24 (6th Cir. 1979)




Peterson v. Islamic Rep. of Iran,

264 F.Supp.2d 46 (D.D.C.2003)














Pfannenstiel v. Merrill Lynch, Pierce, Fenner & Smith,

477 F.3d 1155 (10th Cir. 2007)


Phillips v. Heine,

984 F.2d 489 (D.C.Cir.1993)






Phoenix Consulting, Inc. v. Republic of Angola,

216 F.3d 36 (D.C.Cir.2000)






Pohill v. Islamic Rep. of Iran,



















2001 U.S. Dist. LEXIS 15322 (D.D.C.Aug. 23, 2001)


Price v. Socialist People’s Libyan Arab Jamahiriya,


294 F.3d 82 (D.C.Cir.2002)






Rakes v. U.S.,

442 F.3d 7 (1st Cir. 2006)


Reyton v. Rowe,

391 U.S 54 (1968)




Roeder v. Islamic Rep. of Iran,





195 F. Supp.2d 140 (D.D.C.2002)


Sandvik v. United States,

177 F.3d 1269 (11th Cir.1999)


Santa Maria v. Pac. Bell,

202 F.3d 1170 (9th Cir. 2000)












Simpson v. Socialist People's Libyan Jamahiriya,

362 F.Supp.2d 168 (D.D.C., 2005)


Socop-Gonzalez v. INS,

272 F.3d 1176 (9th Cir.2001)























10































59

59, 61

57, 62





60



49, 54-55, 58, 61









































19-20









62

19

59

57

23-25







50

55

26

55, 59

Case 1:06-cv-00734-RBW Document 24 Filed 12/17/2007 Page 11 of 67

Sparrow v. United Air Lines,

216 F.2d 1111 (D.C.Cir.2000)


Tristar Corp. v. Freitas,

84 F.3d 550 (2d Cir. 1996)


TRW Inc. v. Andrews,

534 U.S. 19 (2001)














United States v. BCCI Holdings (Lux.), S.A.,


916 F.Supp.2d 1276 (D.D.C.1996)


United States v. Ibarra,

502 U.S. 1 (1991)






Vine v. Rep. of Iraq,

459 F.Supp.2d 10 (D.D.C.2006)


Wagner v. Islamic Rep. of Iran,

172 F.Supp.2d 128 (D.D.C.2001)


Weinstein v. Islamic Rep. of Iran,

184 F. Supp.2d 13 (D.D.C.2002)


Williams v. Sims,

390 F.3d 958 (7th Cir. 2004)


Wyatt v. Syrian Arab Rep.,

362 F.Supp.2d 103 (D.D.C.2005)



STATUTES

22 U.S.C. § 2371

22 U.S.C. § 2656

28 U.S.C. § 1305

28 U.S.C. § 1601

28 U.S.C. § 1605

50 U.S.C. App. 240























































































































































19

59

50

62

54

48, 56







18

18

54

18, 47, 57









17

26

52

15





















16-18, 20, 21, 23, 25, 38, 47-48, 50-52, 55-56, 58, 62, 63















17, 21



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Case 1:06-cv-00734-RBW Document 24 Filed 12/17/2007 Page 12 of 67

SECONDARY SOURCES

H.R. Rep. 103-702





H.R. Rep. No. 104–383 (1995)

















Pub. L. No. 104-208, Div. A., Tit. I, § 101(c) [Tit. V, § 589(a)],
110 Stat. 3009-172 (1997)

S. Rep. 96-831

S. Rep. 102-249







































































BRIAN L. DAVIS, QADDAFI, TERRORISM, AND THE ORIGINS OF THE U.S. ATTACK
ON LIBYA, (Praeger Publishers, 1990)

RIAD N. EL-RAYYES AND DUNIA NAHAS, GUERRILLAS FOR PALESTINE: A STUDY
OF THE PALESTINIAN COMMANDO ORGANIZATIONS,
(An-Nahar Press Services, S.A.R.L., 1974)

STEVE POSNER, ISRAEL UNDERCOVER: SECRET WARFARE AND HIDDEN DIPLOMACY
IN THE MIDDLE EAST (Syracuse University Press, 1987)



























PATTERNS OF GLOBAL TERRORISM

52

39

17

29

52

46

40

41





CENTRAL INTELLIGENCE AGENCY, NATIONAL FOREIGN ASSESSMENT CENTER,
PATTERNS OF INTERNATIONAL TERRORISM: 1980, (June 1981)

CENTRAL INTELLIGENCE AGENCY, NATIONAL FOREIGN ASSESSMENT CENTER,
PATTERNS OF INTERNATIONAL TERRORISM: 1981, (July 1982)

CENTRAL INTELLIGENCE AGENCY, NATIONAL FOREIGN ASSESSMENT CENTER,
PATTERNS OF GLOBAL TERRORISM: 1983, (September, 1984)

MIPT Terrorism Information Center, Patterns of Global Terrorism, (2000-2007),
available at http://www.terrorisminfo.mipt.org/Patterns-of-Global-Terrorism.asp













32

26

34, 45

34, 46

GOVERNMENT RECORDS

Central Intelligence Agency, Research Study on International and
Transnational Terrorism: Diagnosis and Prognosis, (April 1976)


CENTRAL INTELLIGENCE AGENCY, SIGNIFICANT FEDAYEEN AND
FEDAYEEN-RELATED INTERNATIONAL TERRORIST INCIDENTS 1 JANUARY TO





35



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31 MARCH 1975, (May 31, 2000) Supplement No. 4

Central Intelligence Agency, Terrorism and the Fedayeen,
(September 1972), at CIA-RDP79-01194A000200120001-1

NATIONAL SECURITY COUNCIL, U.S. POLICY TOWARD LIBYA,
NATIONAL SECURITY STUDY MEMORANDUM, (June 5, 1973)

Office of the Legal Advisor, United States Department of State, Cumulative
Digest of the United States Practice in International Law, (1981-1988),
Book III, 3023

PUBLIC PAPERS OF THE PRESIDENT OF THE UNITED STATES, JIMMY CARTER,
EXPORT CONTROLS FOR FOREIGN POLICY PURPOSES,
(June 23 – December 31, 1979), BOOK II, at 2290-2294.

Settlement of the Hostage Crisis, (Jan. 18, 1981), U.S.-Iran, 20 I.L.M. 223

U.S. DEPARTMENT OF DEFENSE, DEFENSE INTELLIGENCE AGENCY INTELLIGENCE
APPRAISAL, LIBYA: TERRORIST APPARATUS (October 15, 1981)

U.S. Department of State, Airgram From U.S. Embassy in Tripoli, Libya,
to U.S. Department of State, Subject: LARG Reservations About Terrorism,
(November 28, 1972)


U.S. Department of State, Confidential Telegram from U.S. Secretary to
Numerous U.S. Embassies, (December 31, 1981), at 042486

U.S. Department of State, Confidential Telegram from U.S. Secretary to
Numerous U.S. Embassies, (March, 1973), at 047847

U.S. Department of State, Confidential Telegram from U.S. Secretary of State
to Ambassador, at 164986


Congressional Hearings

Federal Capabilities in Crisis Management and Terrorism: Hearings Before
the Subcommittee on Civil and Constitutional Rights of the House Committee
on the Judiciary, 97th Cong., (1978)

International Terrorism, Hearing before the Senate Subcommittee on
Foreign Assistance of the Committee on Foreign Relations, 95th Cong., (1977)

International Terrorism: Legislative Initiatives, Hearings and Markup before
the Committee on International Relations and its Subcommittee on













































































33

33

44

24

22

24

45

41

36

37

37

36

28



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International Security and Scientific Affairs, 95th Cong., (1978)

Patterns of Global Terrorism and Threats to the United States, Hearing
before the Special Oversight Panel on Terrorism of the Committee on
Armed Services House of Representatives, 107th Cong., (May 22, 2001)









43

27, 40



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Plaintiffs, by and through counsel, Joshua M. Ambush, of the Law Offices of Joshua M.

Ambush, LLC, respectfully submit this Memorandum of Points and Authorities in Support of

Plaintiffs’ Motion in Opposition to Libyan Defendant’s Motion to Dismiss the Complaint.

I. INTRODUCTION



Defendant Libya filed a Motion to Dismiss the Complaint, which lists two purportedly

dispositive reasons to dismiss the complaint: (1) Libya is allegedly immune from suit under the

Federal Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1601, et seq.; and (2) the Plaintiffs

claims in the Complaint, all of which allegedly arose in 1972, are time barred. Plaintiff

disagrees, as Plaintiff has shown sufficient, conclusive facts for this court to establish jurisdiction

over Libyan Defendants, and because equitable tolling principles apply to toll the statute of

limitations on Plaintiff’s claims, which are timely as a result.

II. STATEMENT OF FACTS


a. BACKGROUND


On May 30, 1972, Plaintiffs participated in a pilgrimage tour to Israel. Plaintiff’s flight

stopped in Rome, Italy to board 12 people, including the three Japanese Red Army (“JRA”)

terrorists involved in the attack at Lod Airport. These JRA terrorists were aided by Syrian and

Libyan agents and employees, who used their diplomatic pouch privileges to smuggle guns and

grenades onto the Plaintiff’s flight for the JRA to use in carrying out the attack.

The JRA terrorists, who had arrived on the same flight as the Plaintiffs, waited for their

luggage to arrive with the Plaintiffs in the baggage claim area. When their luggage arrived, the

JRA terrorists removed guns and grenades from their luggage, and used these weapons to open

fire upon the passengers grouped around the baggage claim area, including the Plaintiffs. As a

result, 24 people died, and 78 were wounded in the devastating terrorist attack at Lod Airport.



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b. DEFENDANT’S SPONSORSHIP AND MATERIAL SUPPORT OF

TERRORISM



Defendant Libya regularly provided material support and resources to terrorist groups.

For example, Libya provided camps for terrorist training, weapons and logistic materials,

fraudulent identification documents, and helped terrorist groups obtain legal passage and

infiltration into Israel. Libya also funded these activities through various unlawful enterprises,

seized American-held oil fields in Libya, and falsified national identification documents, which

enabled terrorist groups to travel freely into Arab states and other foreign countries, including

Israel.

Defendant Libya also dealt and sold illegal controlled substances, engaged in acts of

murder, kidnapping, arson, robbery and extortion, and provided refuge, headquarters, and

assistance to numerous terrorist groups. This aid enabled terrorist groups to develop networks in

Syria and Lebanon, from which to launch terrorist attacks against Israel.

By and through this aid, heads of the major terrorist organizations met at a refugee camp

in Lebanon, and jointly agreed to engage in terrorist attacks. At this same meeting, Defendant

Palestinian Liberation Organization (“PLO”), Defendant Popular Front for the Liberation of

Palestine (“PFLP”), and Defendant JRA, in partnership with Syria and Libya, jointly formulated

plans for the Lod Airport attack, and ultimately carried out the attack.

III. STATUTORY FRAMEWORK


The FSIA is the “sole basis for obtaining jurisdiction over a foreign state in federal

court.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989). In

particular, section 1605 of the FSIA provides that:

(a) A foreign state shall not be immune from the jurisdiction of
courts of the United States or of the States in any case -- (1) in
which the foreign state has waived its immunity either explicitly or



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by implication, notwithstanding any withdrawal of the waiver
which the foreign state may purport to effect except in accordance
with the terms of the waiver; (2) in which the action is based upon
a commercial activity carried on in the United States by the foreign
state; or upon an act performed in the United States in connection
with a commercial activity of the foreign state elsewhere; or upon
an act outside the territory of the United States in connection with
a commercial activity of the foreign state elsewhere and that act
causes a direct effect in the United States.


28 U.S.C. § 1605.

The FSIA enumerates a number of specific exceptions to sovereign immunity, including

cases “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 (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,

except that the court shall decline to hear a claim under this paragraph.” 28 U.S.C. § 1605(a)(7).

After passage of § 16605 (a)(7), the court held, in Flatow v. Islamic Republic of Iran, 999 F.

Supp. 1 (D.D.C. 1998), that the waiver of sovereign immunity did not itself create a cause of

action. Subsequently, Congress passed the “Flatow Amendment” (28 U.S.C.A.§ 1605 (a)(7)

Note), to create a federal statutory cause of action for such cases. See also, Omnibus

Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, Div. A., Tit. I, § 101(c) [Tit. V, §

589(a)], 110 Stat. 3009-172 (28 U.S.C. 1605).

The FSIA prohibits courts from exercising jurisdiction as an exception to sovereign

immunity “if the foreign state was not designated as a state-sponsor of terrorism under section (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



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designated as a result of such act.” 28 U.S.C. § 1605(a)(7) (Emphasis added.) If the foreign

sovereign is not immune, the federal district courts have exclusive jurisdiction over the action. 28

U.S.C. 1330, 1604; Daliberti v. Republic of Iran, 97 F. Supp.2d 38, 42 (D.D.C. 2000). In

numerous suits preceding this action, private claimants have successfully invoked this statutory

exception to establish a basis by which federal district courts may exercise jurisdiction over

claims similar to those brought by Plaintiffs. See, e.g,. Wyatt v. Syrian Arab Republic, 362

F.Supp.2d 103, 111, n.1 (D.D.C.2005); Weinstein v. Islamic Rep. of Iran, 184 F. Supp.2d 13, 20

(D.D.C.2002); Wagner v. Islamic Rep. of Iran, 172 F.Supp.2d 128, 133-134 (D.D.C.2001); Jenco

v. Islamic Rep. of Iran, 154 F.Supp.2d 27, 32-33 (D.D.C.2001).

As indicated in Plaintiff’s Opposition Motion in Macquarrie v. Great Socialist People’s

Libyan Arab Jamahiriya, C.A.No 04-176 (EGS), it remains “settled law [that] the court may in

appropriate cases dispose of a motion to dismiss for lack of subject matter jurisdiction under Fed.

R. Civ. P. 12(b)(1) on the complaint standing alone.” Herbert v. Nat'l Acad. of Science, 974 F.2d

192, 197 (D.C. Cir. 1992). A motion to dismiss for lack of subject matter jurisdiction under Rule

12(b)(1) should not prevail “unless plaintiffs can prove no set of facts in support of their claim

which would entitle them to relief.” Kowal v. MCI Commun. Corp., 16 F.3d 1271, 1276 (D.C.

Cir. 1994); Beverly Enters., Inc. v. Herman, 50 F. Supp. 2d 7, 11 (D.D.C. 1999).

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the

adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. “[A]

complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). (Emphasis added.) The court must treat the

complaint’s factual allegations -- including mixed questions of law and fact -- as true and draw



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all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d

61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165

(D.C. Cir. 2003).

Thus, if the Defendant challenges the legal sufficiency of the Plaintiff’s jurisdictional

allegations, the court should accept the Plaintiff’s factual allegations as true and determine

whether such facts bring the case within any of the exceptions to foreign-state immunity invoked

by the Plaintiff. Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443

(D.C.Cir.1990). The Plaintiff need not set out all of the precise facts on which he bases his claim

to survive a motion to dismiss. Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82,

93 (D.C.Cir.2002).

Once a foreign sovereign Defendant asserts immunity, the Plaintiff bears the burden of

producing evidence to show that there is no immunity and that the court has jurisdiction over the

Plaintiff’s claims. Id. at 42. A court may dismiss a complaint only if it appears beyond doubt

that the Plaintiff can prove no set of facts in support of his claims that would entitle him to relief.

Id. (Emphasis added.) Once the Plaintiff has satisfied his burden, the Defendant bears the

burden of proving that the Plaintiff’s allegations do not bring the case within one of the statutory

exceptions to immunity. Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39

(D.C.Cir.2000).

FSIA cases need only satisfy the liberal notice-pleading standards of Fed.R.Civ.P. 8, and

Plaintiffs need only provide Defendants with “fair notice of each claim and its basis.” Sparrow v.

United Air Lines, 216 F.2d 1111, 1118 (D.C.Cir.2000); Baker v. Great Socialist People’s Libyan

Arab Jamahiriya, 2006 WL 3208662, at *3-5 (D.D.C.2006); Dammarell v. Islamic Rep. of Iran,

370 F.Supp.2d 218, 223 (D.D.C.2005). Thus, the court has “considerable latitude in devising the



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procedures it will follow to ferret out the facts pertinent to jurisdiction.” However, the court

must give the Plaintiff “ample opportunity to secure and present evidence relevant to the

existence of jurisdiction.” Phoenix Consulting, 216 F.3d at 40.

IV. PLAINTIFF’S ARGUMENTS


a. PLAINTIFF HAS SUBJECT MATTER JURISDICTION OVER

DEFENDANTS BECAUSE LIBYA WAS ADDED TO THE STATE-
SPONSOR OF TERRORISM LIST FOR BROAD SUPPORT OF
INTERNATIONAL TERRORISM



Defendant is wrong to assert that the FSIA requires Plaintiffs to show that Libya’s

alleged involvement in the Lod Airport massacre was the reason that Libya was put on the State

Sponsors of Terrorism List (Defendant’s Motion to Dismiss, ¶¶7-8).

Defendants are misconstruing the plain and simple meaning of the statutory provision

that the foreign state must have been designated a state-sponsor of terrorism at the time the act

occurred, unless later so designated as a result of such act. See, U.S.C. § 1605 (a)(7)(A) and

(B). (Emphasis added.)

Defendants argue that the state-sponsored terrorism exception only applies if the foreign

state was designated a state-sponsor of terrorism at the time of the [enactment of the Export

Administration] Act [of 1979 or as a result of such [specific] act [of terrorism]. In 1972, at the

time this cause of action arose, Libya was not impliedly designated a state-sponsor of terrorism.

Therefore, Defendants argue that the “court lacks subject matter jurisdiction over the Plaintiff’s

case… and the sovereign has immunity from trial.” (Defendant’s Motion to Dismiss, ¶ 5).

Defendant’s interpretation of the term “as a result of such act,” Id., creates the false

impression that Plaintiff’s claims are barred absent an express written statement to the effect that

Libya was designated a state-sponsor of terrorism for directly perpetrating the Lod Airport

massacre.



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Plaintiffs urge the court to reject the notion that state sponsors of terrorism were

designated on the basis of reference to a specific “list” that included some, but excluded other

terror attacks, and a foreign state’s sovereign immunity, or loss thereof, was dependant upon

whether the terror attack in question was or was not “on the list”.

The Export Administration Act of 1979, which created sanctions for state sponsors of

terrorism, also established, for the first time, a list of countries that repeatedly sponsored

terrorism. Thus, it was impossible for Libya to be designated a “state-sponsor of terrorism” at

the time of the Lod terror attack.

Nevertheless, the Act makes clear that Plaintiffs can still demonstrate subject matter

jurisdiction by showing that Libya was later so designated as a result of such act. See, 28 U.S.C.

§ 1605(a)(7)(A) and (B).

Defendants further assert that, absent absolute proof that Libya was expressly placed on

the terrorism list as a direct result of the Lod Airport attack, Plaintiffs’ claim of subject matter

jurisdiction must fail.

Defendants’ arguments are wholly without merit. There has long been an Export

Administration Act, but only since 1979 has the Act incorporated new language to create a

sanction for countries harboring and supporting terrorism.

The Export Administration Act of 1979, 50 U.S.C. App. 2405(j), states:

A validated license shall be required for the export of goods or
technology to a country if the Secretary of State has made the
following determinations: (A) The government of such country has
repeatedly provided support for acts of international terrorism. (B)
The export of such goods or technology could make a significant
contribution to the military potential of such country, including its
military logistics capability, or could enhance the ability of such
country to support acts of international terrorism.





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Id. at 2405(j)(1)(A)-(B). Thus, the legislative history confirms that the criteria for adding a

country to the state-sponsor of terrorism list is that the country must demonstrate a pattern of

support for international terrorism.

The Export Administration Act, as originally adopted, mandated that the president

establish the list of terrorist sponsoring countries. In 1979, pursuant to the requirements of the

Export Administration Act, President Carter designated Libya as a state-sponsor of terrorism for

“repeatedly provid[ing] support for acts of international terrorism.” PUBLIC PAPERS OF THE

PRESIDENT OF THE UNITED STATES, JIMMY CARTER, EXPORT CONTROLS FOR FOREIGN POLICY

PURPOSES, BOOK II (June 23 – December 31, 1979), at 2290-2294. (Emphasis added.)

Thus, the criteria for designating a country as a state-sponsor of terrorism was that the

country engage in a pattern of sponsoring terrorism. A country that sponsored merely one act of

terrorism, no matter how catastrophic, would not qualify for designation as a state-sponsor of

terrorism. The Act established that the decisive factor to designation was the repeated

sponsorship of terrorism, and not any one individual act by itself.

Plaintiffs can demonstrate that Libya engaged in a broad policy of support of

international terrorism, occurring long before the incident at Lod Airport, and continuing through

the date Libya was added to the state-sponsored terrorism list.

This historical data was compiled from 1968 through 1979, when the state-sponsored

terrorism list was established, and relied upon to assess and determine the factual basis for which

Libya was added to the state-sponsored terrorism list.

The evidence conclusively shows that Libya and Syria provided “material support or

resources” to the PLO, PFLP, and their co-conspirators, the JRA, and these terrorist groups were

the perpetrators of the heinous acts of terrorism at Lod Airport. Libya and Syria were later



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designated to the list under the FSIA’s provision of “unless later so designated as a result of such

act.” Id. Thus, this court should find that it has jurisdiction over the subject matter of this suit

and the named defendants.

i. DEFENDANT’S RELIANCE ON ROEDER IS MISPLACED, AS
ROEDER IS NOT AKIN TO THE CASE AT BAR, AND HELPS
PLAINTIFFS’ CASE



Defendants further argued that Plaintiffs could not establish that the state-sponsored

exception to sovereign immunity applied to Libya, relying on Roeder v. Islamic Rep. of Iran, 195

F. Supp.2d 140, 159-160 (D.D.C.2002), for the principle that the court did not have jurisdiction

since Libya was not on the state-sponsored list of terrorism at the time of the attack.

(Defendant’s Motion to Dismiss, ¶ 7). Defendant’s scant basis for this argument is merely that;

“at the time of the incident, May 30, 1972, Libya was not on the State Sponsor of Terrorism list;”

that “Plaintiffs have not alleged that the attack at the Lod Airport; and that Libya’s alleged

involvement in that attack, was the reason that Libya was put on the state-sponsor of terrorism

List seven years later.” According to Defendants, the fact that “Libya provided ‘material support

and resources to international terrorist organizations’… [is] not sufficient to satisfy Section

1605(a)(7). (Defendant’s Motion to Dismiss, ¶¶ 7-8).

Roeder is clearly distinguishable from the case sub judice. The district court held in

Roeder that it did not have jurisdiction based on legislative history showing that Iran was

designated as a state-sponsor of terrorism a result of its actions occurring subsequent to the

Iranian terrorist incident in that case, i.e., the Iranian Hostage Crisis of 1979, based on the

Algiers Accords which were enacted after the terrorist act in Roeder, but prior to the Plaintiff’s

suit.



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The Algiers Accords were a treaty signed in Algeria on January 20, 1981, which waived

all U.S. claims over the incident. The Algiers Accords stated that “the United States will

promptly withdraw all claims now pending against Iran … and will thereafter bar and preclude

the prosecution against Iran of any pending or future claim of the United States or a United

States national arising out of events occurring before the date of this declaration” and “[t]he

United States will also bar and preclude the prosecution against Iran in the courts of the United

States of any pending or future claim asserted by persons other than the United States nationals

arising out of the events specified in the preceding sentence.” See, Dames & Moore v. Regan,

453 U.S. 654 (1981); See also, Settlement of the Hostage Crisis, Jan. 18, 1981, U.S.-Iran, 20

I.L.M. 223. Hence, when Iran was added to the state-sponsored terror list, the incidents

surrounding the Iranian Hostage Crisis were expressly exempted.

The Roeder court found that Iran was added to the terrorism list based upon a “careful

review of the facts and statements by the Government of Iran over the last two years.” Roeder

195 F. Supp.2d at 140. Thus, Iran’s addition to the terrorism list was based solely on specific

incidents that occurred within an exceptionally narrow two year time-frame.

The Roeder court held that the Roeder Plaintiffs claims were barred because “Iran was

designated [to the state-sponsored terrorism list] as a result of its actions occurring subsequent to

the Algiers Accords.” (quoting, Office of the Legal Advisor, United States Department of State,

Cumulative Digest of the United States Practice in International Law, 1981-1988, Book III,

3023).

In other words, the Roeder Plaintiffs’ claims, which arose during the Iranian Hostage

Crisis, were barred due to the Algiers Accords, which granted Iran sovereign immunity from any

suit arising out of the Iranian Hostage Crisis. Had the Plaintiff’s claims arose from an Iranian



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terrorist act that occurred subsequent to the Algiers Accords, i.e., in 1982 or 1983 or later, the

Plaintiff’s suit would not have been dismissed.

The blatant and explicit use of the term “subsequent,” indicated to the court that

Congress’ intended to specifically exclude the Iranian hostage crisis, and to provide Iran with

sovereign immunity from suit, for the time period covered by the Algiers Accords. Roeder 195 F.

Supp.2d at 140. Thus, the Roeder claims failed to meet either of the two criteria established in

the statute. Iran was not designated a state-sponsor of terrorism at the time of the Iranian

hostage crisis, and Iran was not later so designated as a result of the Iranian hostage crisis. 28

U.S.C. § 1605(a)(7)(A)and(B).

In stark contrast to the situation regarding Iran, no such limitations were indicated when

Libya was designated one of the original state sponsors of terrorism. In point of fact, Libya was

not designated a state-sponsor of terrorism for its actions subsequent to the Lod Airport

Massacre.

The statutory language plainly and clearly indicates Congressional intent that any

material sponsorship of terrorism by Libya, which may have proximately caused terrorist acts

such as the Lod Airport massacre, which were later grounds for Libya to be placed on the state-

sponsored terrorism list, is sufficient to grant this court subject matter jurisdiction.

Contrary to Defendant’s assertion, the FSIA’s language, “as a result of such act,” 28

U.S.C. § 1605(a)(7), does not impose a requirement that Plaintiffs demonstrate that the Lod

Airport Massacre was the [sole] reason or [specific] reason Libya was designated a state-sponsor

of terrorism. (See, Defendant’s Motion to Dismiss, ¶¶ 7-8).

As will be detailed infra, Libya was placed on the list as a result of its provision of

material support and resources to the terrorists and terrorist groups that perpetrated the Lod



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Airport Massacre over a long period of time prior to, and certainly including, May 30, 1972, the

time that the Lod Airport Massacre occurred.

b. LIBYA’S DESIGNATION TO THE STATE-SPONSOR OF TERRORISM
LIST AROSE FROM THE U.S. GOVERNMENT’S EFFORTS TO TRACK
AND DOCUMENT ITS MATERIAL SUPPORT OF TERRORISM OVER
MANY YEARS.



Patterns of Global Terrorism is a Congressionally-mandated report from the U.S.

Department of State intended to provide a full and complete record of the countries and groups

which are involved in international terrorism. MIPT Terrorism Information Center, Patterns of

Global Terrorism, (2000-2007), available at http://www.terrorisminfo.mipt.org/Patterns-of-

Global-Terrorism.asp; See also, 22 U.S.C. § 2656(f).

In 1976, the CIA began recording its efforts to track and document the actions of

countries providing aid and support to terrorist groups and organizations. The CIA documented

these efforts in its study, titled the “International and Transnational Terrorism: Diagnosis and

Prognosis.” Id. After this study, from 1977 through 1980, the CIA began producing its annual

report, known as “International Terrorism,” which became the “Patterns of International

Terrorism” from 1981 through 1984. Id. Patterns of International Terrorism reports were the

precursor to the Patterns of Global Terrorism reports, issued in 1984 until 2004. Id. As of 2004,

the Patterns of Global Terrorism report is now known as the “Country Reports on Terrorism.” Id.

Courts have expressly recognized that Patterns of Global Terrorism “is an annual report

highlighting worldwide patterns of terrorism, and reflects the formal and official position of

the U.S. government with respect to responsibility for various terrorist acts.” Simpson v.

Socialist People's Libyan Jamahiriya, 362 F.Supp.2d 168 (D.D.C., 2005) (quoting, Dammarell v.

Iran, 281 F.Supp.2d 105, 111 n. 6 (D.D.C.2003)).



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The addition of Libya and Syria were based on historical accounts collected since 1968,

when the United States first began compiling records of international terrorist attacks.

Moreover, the U.S. government repeatedly, and conclusively, established that Libya was a

country that actively sponsored international terrorism.

Who are the nations that sponsor international terrorism? Some
states might resort to terrorism as a form of asymmetrical warfare
against the United States in a future crisis or conflict, or they might
use terrorism as part of a protracted campaign to attempt to force
the United States to abandon its global role and its regional
interests and the re