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Case 1:06-cv-00734-RBW Document 34-2 Filed 02/19/2008 Page 1 of 8

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.












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

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PLAINTIFFS’ SURREPLY IN OPPOSITION TO LIBYAN DEFENDANT’S

REPLY TO PLAINTIFFS’OPPOSITION TO DEFENDANT’S

MOTION TO DISMISS THE COMPLAINT



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

Ambush, LLC, respectfully submit this Plaintiffs’ Surreply in Opposition to Libyan Defendant’s

Reply to Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint.

I. INTRODUCTION



Libyan Defendants’ Reply to Plaintiff’s Opposition to Defendant’s Motion to Dismiss the

Complaint states, inter alia, two now defunct propositions, which are the subject of this

Surreply: (1) Plaintiffs’ claims in the Complaint, all of which allegedly arose in 1972, are stale

and time barred; and (2) that the Roeder case, which narrowly interpreted the Algiers Accords, is

applicable to the case at bar.

Plaintiffs disagree, as the new amendment of the FSIA, H.R. 4986, Section 1083, ensures

that Plaintiffs’ Complaint was timely filed. H.R. 4986, Section 1083, also effectively overrules

the Roeder decision. Therefore, it is irrefutable that Plaintiffs’ claims are no longer stale or time-

barred, nor does Roeder apply to the case sub judice. In fact, Defendants’ claims in this regard

are now moot.

Case 1:06-cv-00734-RBW Document 34-2 Filed 02/19/2008 Page 2 of 8

II. PLAINTIFFS’ CLAIMS ARE NOT TIME-BARRED DUE TO THE NEW

AMENDMENT OF THE FSIA, H.R. 4986, SECTION 1083



On January 29, President Bush signed into law the National Defense Authorization Act

for Fiscal Year 2008, H.R. 4986. Included in H.R. 4986 was Section 1083, otherwise titled as

the “Terrorism Exception to Immunity” amendment. See EXHIBIT 1. This law was based on

legislation introduced in 2007, the JUSTICE FOR VICTIMS OF STATE SPONSORED TERRORISM ACT,

S. 1944, 110th Cong. (2007), and was based on the 1996 Flatow Amendment to the FSIA.

The relevant portion of the “Terrorism Exception to Immunity” amendment, H.R. 4986,

§1083, reads, in pertinent part:

An action may be brought or maintained under this section if the
action is commenced, or a related action was commenced under
section 1605(a)(7) (before the date of the enactment of this section)
… not later than the latter of—

(1) 10 years after April 24, 1996; or

(2) 10 years after the date on which the cause of action arose.


NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008, H.R. 4986, § 1083 (2008)

(emphasis added). According to the legislative history, the purpose of §1083 was to ensure that:

Any judgment or action brought under section 1605(a)(7) … after
the effective date of such provisions relying on either of these
provisions as creating a cause of action, which has been adversely
affected on the grounds that either or both of these provisions fail
to create a cause of action against the state, and which is still
before the courts in any form … shall, on motion … be given
effect as if it had originally been filed pursuant to section
1605A(d) …


JUSTICE FOR VICTIMS OF STATE SPONSORED TERRORISM ACT, S. 1944, 110th Cong. (2007).



Previously, the vague wording of the FSIA required a subjective interpretation by this

Court. The prior version of the FSIA stated:

Case 1:06-cv-00734-RBW Document 34-2 Filed 02/19/2008 Page 3 of 8

No action shall be maintained under subsection (a)(7) unless the
action is commenced not later than 10 years after the date on which
the cause of action arose. All principles of equitable tolling,
including the period during which the foreign state was immune
from suit, shall apply in calculating this limitation period.


28 U.S.C. §1605(f). Defendants have disputed the fact that equitable tolling applied to the

statute of limitations period. See Libya’s Reply to Plaintiffs’ Opposition to Defendants Motion

to Dismiss the Complaint at 1 (hereinafter referred to as “Libya’s Reply” or “Defendants’

Reply”).

Previously, Plaintiffs argued that Congress intended the ten-year statutory period for

claims under the FSIA’s terrorism exception to begin to run only upon the waiver of sovereign

immunity. See Plaintiff’s Motion in Opposition to Libyan Defendant’s Motion to Dismiss and

Accompanying Memorandum of Points and Authorities at 53 (hereinafter referred to as

“Plaintiffs’ Memorandum of Points and Authorities”). Thus, Plaintiffs argued that the statute of

limitations should be tolled from between May 30, 1972, until April 24, 2006, when the

Defendants were stripped of their sovereign immunity. Id. at 63. Accordingly, Plaintiffs argued

that they filed their Complaint after a reasonable time, but still within the 10-year statute of

limitations period. Id. at 62-63.

Libyan Defendants disagreed, and devoted over 13 pages to their argument that (a)

Plaintiffs’ cause of action arose on May 30, 1972; (b) equitable tolling did not suspend the

running of the statute of limitations; (c) the FSIA statute of limitations was intended to protect

defendants from litigating stale claims arising 34 years later; and (c) Plaintiffs’ claims were time-

barred even if equitable tolling suspended the statute of limitations, because Plaintiffs’ claims

were not filed within a reasonable time-frame. See Libya’s Reply at 9-21.

Case 1:06-cv-00734-RBW Document 34-2 Filed 02/19/2008 Page 4 of 8

Due to the enactment of H.R. 4986, §1083, Defendants’ arguments on this matter are

now moot. The clear language of §1083, which amends the FSIA, establishes that any action

brought during the time-frame listed in §1083 is not considered stale or time-barred, despite

Defendants’ arguments to the contrary. See Libya’s Reply at 9-21.

Section 1083 provides that an action is considered timely filed as long as it is filed by

April 24, 2006.1 Notwithstanding Plaintiffs’ claims that the immunity period should be removed

from the statute of limitations calculation, the vague principles of equitable tolling outlined in

the FSIA are no longer implicated under §1083. Thus, the adverse decisions relied upon by

Defendants, which applied equitable tolling principles to statute of limitations arguments, are

now inapplicable to the case at bar. See, e.g., Buonocore v. Great Socialists People’s Libyan

Arab Jamahiriya, 2007 U.S. Dist. LEXIS 49031 (D.D.C. 2007); Vine v. Republic of Iraq, 459

F.Supp. 2d 10 (D.D.C. 2006); Sandvik v. United States, 177 F.3d 1269 (11th Cir.1999); Phillips

v. Heine, 984 F.2d 489 (D.C. Cir.1993); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 453

(7th Cir. 1990) (Posner, J.).

As Plaintiffs timely filed their action on April 21, 2006, inside of ten years from April 24,

1996, their claims are neither stale nor time-barred, and must “be given effect as if [originally]

filed pursuant to section 1605A(d).” Id. Moreover, Defendants claims that Plaintiffs had no

impediment toward bringing their claims for at least a four year period prior to the enactment of

the terrorism exception to the FSIA, see Libya’s Reply at 19, are now irrelevant.

Section 1083 permits Plaintiffs’ filing at any time prior to April 24, 2006. Even if the

cause of action arose, as Defendants claim, four years prior to the terrorism exception to the

FSIA, Plaintiffs could still file at any time prior to April 24, 2006.


1 The latter of 10 years after the date on which the cause of action arose (assuming the cause of action arose either
on May 30, 1972 or on April 24, 1996, would render the amended dates to May 30, 1982, or April 24, 2006), or 10
years after April 24, 1996 (i.e., April 24, 2006), is clearly 10 years after April 24, 1996.

Case 1:06-cv-00734-RBW Document 34-2 Filed 02/19/2008 Page 5 of 8

Therefore, assuming that the cause of action arose either, as Defendants argue, on May

30, 1972, or, as Plaintiffs would have it, on April 24, 1996, and notwithstanding the fact that

Defendants timely filed their complaint on April 21, 2006, Plaintiffs’ filing must still be

considered timely under the “Terrorism Exception to Immunity” amendment, §1083.

a. The Roeder Decision is Inapplicable To The Case At Bar. Regardless, Roeder

Has Been Effectively Overturned by § 1083.



Plaintiffs incorporate by reference all arguments previously made in its Opposition to

Defendant’s Motion to Dismiss the Complaint. As Plaintiffs stated previously, the Roeder

decision is inapplicable to the case sub judice. The Roeder decision was a narrow interpretation

of specific legislation enacted by Congress, which directed U.S. courts to decline to hear such

cases, and read in pertinent part:

if the foreign state was not designated as a state sponsor of
terrorism … at the time the act occurred, unless later so designated
as a result of such act or the act is related to Case Number
1:00CV03110 (ESG) in the United States District Court for the
District of Columbia.


28 U.S.C.A. § 1605(a)(7)(A) (emphasis added).


According to the Roeder court, Plaintiffs in Roeder 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) (emphasis added).

Therefore, as Judge Sullivan stated in Roeder:



the Anti-Terrorism Act,

Neither
the Flatow Amendment,
Subsection 626(c), or Section 208 contain the type of express
statutory mandate sufficient to abrogate an international executive
agreement. Furthermore, … the legislative histories of these
statutes contain no clear statements of Congressional intent to
specifically abrogate the Algiers Accords. Therefore, …[u]nless
and until Congress expresses its clear intent to overturn the

Case 1:06-cv-00734-RBW Document 34-2 Filed 02/19/2008 Page 6 of 8

provisions of a binding agreement between two nations that has
been in effect for over twenty years, this Court can not interpret
these statutes to abrogate that agreement.


Roeder v. Islamic Republic of Iran, 195 F.Supp.2d 140 (D.D.C.2002). Absent a clear intent by

Congress to overturn the Algiers Accords, the Roeder Court refused to grant jurisdiction to

Plaintiffs over Iranian Defendants.

However, Congress, in passing H.R. 4986, § 1083, struck the applicable portion of the

FSIA which directed U.S. courts to decline to hear such cases. See NATIONAL DEFENSE

AUTHORIZATION ACT FOR FISCAL YEAR 2008, H.R. 4986, § 1083 (2008) (stating that “[s]ection

1605 of title 28, United States Code, is amended … in subsection (a) ... by striking paragraph

(7)”). Now, under §1083, U.S. Courts have jurisdiction to hear claims prosecuted against Iran by

victims of the 1979 Iran Hostage Crisis. Clearly, Congress intended for Roeder to effectively be

overturned by H.R. 4986. Therefore, Roeder cannot be considered for purposes of adjudicating

the matter at bar.

III. CONCLUSION


WHEREFORE for the foregoing reasons, as well as those set forth in Plaintiffs’ Opposition

to Defendant’s Motion to Dismiss the Complaint, Plaintiffs hereby request that this Court deny

Libyan Defendant’s Motion to Dismiss the Complaint.



Respectfully submitted,

/s/ Joshua M. Ambush
____________________________________
Joshua M. Ambush (Md. Bar # 27025)
Law Offices of Joshua M. Ambush, LLC
Hilton Plaza
1726 Reisterstown Road
Suite 206
Baltimore, Maryland 21208

Case 1:06-cv-00734-RBW Document 34-2 Filed 02/19/2008 Page 7 of 8

410-484-2070
410-484-9330 (facsimile)
joshua@ambushlaw.com




CERTIFICATE OF SERVICE


I hereby certify that a true and accurate copy of the foregoing Plaintiffs’ Surreply in Opposition
to Libyan Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Motion to Dismiss the
Complaint was delivered via electronic filing and 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 14th day of February, 2008.


/s/ Joshua M. Ambush
_____________________________



Case 1:06-cv-00734-RBW Document 34-2 Filed 02/19/2008 Page 8 of 8

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



ORDER

UPON CONSIDERATION of the foregoing Plaintiffs’ Surreply in Opposition to Libyan

Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint, it

is this _____ day of ___________, 2008, by the U.S. District Court for the District of Columbia,

ORDERED, that the Defendant’s Motion to Dismiss the Complaint is DENIED.





___________________________
Judge Reggie B. Walton
U.S. District Court for the District of Columbia