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Case 1:06-cv-00734-RBW Document 40 Filed 05/02/2008 Page 1 of 42





IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA






Plaintiffs,












v.


Reverend JOSE MANUEL VEGA FRANQUI,
Individually and as Administrator of the
Estate of VASTHI ZILA MORALES DE VEGA,
et al.











GREAT SOCIALIST PEOPLE’S LIBYAN
ARAB JAMAHIRIYA, et al.











Defendants.
























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



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LIBYA’S MOTION TO DISMISS THE AMENDED COMPLAINT

Defendant, Great Socialist People’s Libyan Arab Jamahiriya a/k/a Libya (“Libya”), by

undersigned counsel, hereby moves this Court pursuant to Rules 12(b)(1) and (6) of the Federal

Rules for Civil Procedure to dismiss this action against Libya on the basis that this Court lacks

subject matter jurisdiction, in personam jurisdiction and that, in any event, the claims are time-

barred. Libya specifically contends that: (1) plaintiffs cannot establish that an exception to

Libya’s sovereign immunity applies and, consequently, this Court lacks subject matter

jurisdiction; (2) the Court lacks in personam jurisdiction and (3) plaintiffs’ claims are barred by

the applicable statute of limitations.

In support of this motion, Libya respectfully refers this Court to the attached

Memorandum of Points and Authorities and proposed Order.

Case 1:06-cv-00734-RBW Document 40 Filed 05/02/2008 Page 2 of 42

















































































































































Dated: May 2, 2008

















Respectfully submitted,









ECKERT SEAMANS CHERIN
& MELLOTT, LLC

/s/ Mark A. Johnston
Thomas Whalen, Esq. (D.C. Bar #208512)
Mark Johnston, Esq. (D.C. Bar #455764)
1747 Pennsylvania Ave., N.W.
Suite 1200
Washington, DC 20006-4604
(202) 659-6600
Fax: (202) 659-6699
[email protected]
[email protected]

Of counsel

:

Wendy West Feinstein, Esq.
ECKERT SEAMANS CHERIN
& MELLOTT LLC
600 Grant Street
44th Floor
Pittsburgh, PA 15219
(412) 566-6000
Fax: (412) 566-6099
[email protected]

Attorneys for Great Socialist People’s
Libyan Arab Jamahiriya a/k/a Libya















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Case 1:06-cv-00734-RBW Document 40 Filed 05/02/2008 Page 3 of 42






CERTIFICATE OF SERVICE



I HEREBY CERTIFY that copies of the foregoing Motion to Dismiss the Amended

Complaint, Memorandum of Points and Authorities, and Proposed Order were
electronically filed and served, this 2nd day of May, 2008, to:










Joshua Ambush
Terri Sneider
The Law Offices of Joshua M. Ambush, LLC
1726 Reisterstown Road Suite 206
Baltimore, MD 21208















/s/ Mark A. Johnston
Mark A. Johnston





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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





v.




Plaintiffs,




Reverend JOSE MANUEL VEGA FRANQUI,
Individually and as Administrator of the
Estate of VASTHI ZILA MORALES DE VEGA,
et al.











GREAT SOCIALIST PEOPLE’S LIBYAN

ARAB JAMAHIRIYA, et al.











Defendants.





























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



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MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF LIBYA’S MOTION TO DISMISS THE AMENDED COMPLAINT













































































ECKERT SEAMANS CHERIN
& MELLOTT, LLC

1747 Pennsylvania Ave., N.W.
Suite 1200
Washington, DC 20006-4604
(202) 659-6600
Fax: (202) 659-6699








Attorneys for Great Socialist People’s


Libyan Arab Jamahiriya a/k/a Libya

Case 1:06-cv-00734-RBW Document 40 Filed 05/02/2008 Page 5 of 42























Page



TABLE OF CONTENTS





1. Section 1083(c), the “Application to Pending Cases” Provision of the
Revised Legislation, By Its Express Terms Does Not Apply to Plaintiffs’


INTRODUCTION……………………………………….………………………………………..1

A. The Court Lacked Jurisdiction Over The Original Complaint………………………………..2

B. Summary Of Factual Allegations……………………………………………………………...2

ARGUMENT……......…………………………………………………………………………….4

A. Summary of Argument………………………………………………………………………...4

B. The Amended Complaint Should Be Dismissed Because This Court Lacks
Subject Matter Jurisdiction……………………………………………………………………5

C. Plaintiffs’ Amended Complaint Does Not Meet The Requirements of 28 U.S.C.
§1605A………………………………………………………….……………………………..9



Complaint…………………………………………………………………………..…10





Attack Because Their Original Complaint Was Not Timely Filed Pursuant To
28 U.S.C. §1605(a)(7)……………………………………………….………………..15

D. The Amended Complaint Should Be Dismissed Against Libya Because the
Plaintiffs’ Claims Are Time Barred…………………………………………….…………...16


Claims Arose, May 30, 1972…………………………………………………….…..17


Reasonable Period After An Impediment To Suit Is Removed………………….…..19


Suspended The Running of the Statute of Limitations……………………………….22




2. Because Plaintiffs Original Action Was Untimely, They Were Not
“Adversely Affected” As Required Under Section 1803(c)(2)(A)(iii)……………….13

1. The Statute of Limitations Began To Run From the Date On Which Plaintiffs’

3. Plaintiffs’ Claims Are Time-Barred Even If the Doctrine of Equitable Tolling

3. Plaintiffs May Not File A “Related Action” Arising From the May 30,1972

2. The Doctrine of Equitable Tolling Tolls The Statute of Limitations For a

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E. The FSIA Does Not Provide Subject Matter Jurisdiction Over Claims Brought By
Indirect Victims of Terrorism……………….……………………………………………..…24

F. The Exercise Of Personal Jurisdiction Over Libya Violates The Due Process Clause of
The Fifth Amendment……………………………………………………..…………………28

CONCLUSION..…………………….…………………………………………………………...31

CERTIFICATE OF SERVICE…………………………………………………………….…….32




TABLE OF AUTHORITIES


FEDERAL CASES

Acree v. Republic of Iraq,
370 F.3d 41 (D.C. Cir. 2004)…………………………………………..………………….………7

Amoco Overseas Oil Co. v. Compagnie Nationale Algerienne de Navigation,
605 F.2d 648 (2d Cir. 1979)…………………………………………………………..………….29

Arce v. Garcia,
434 F.3d 1254 (11th Cir. Fla. 2006)………………………………………………………..…….20

Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428 (1989)……………………………………………………………………..…..…….5

Chung v. DOJ,
333 F.3d 273 (D.C. Cir. 2003)…………………………………………………………………...21

Cicippio-Puleo v. Islamic Republic of Iran,
2002 WL 34408105 (D.D.C. June 21, 2002)………………………………………….…………27

Cicippio-Puleo v. Islamic Republic of Iran,
353 F.3d 1024 (D.C. Cir. 2004)………………………………………………..……….……14, 27

Communs. Vending Corp. of Ariz. v. FCC,
365 F.3d 1064 (D.C. Cir. 2004)……………………………………………………...….……….21

Doe v. State of Israel,
400 F. Supp. 2d 86 (D.D.C. 2005)…………………………………………………...……………5

*Estate of Buonocore v. Great Socialist People’s Libyan Arab Jamahiriya,
2007 WL 2007509 (D.D.C. July 9, 2007)………………………………….…….14, 17, 19, 20, 21



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Fernandez-Vargas v. Ashcroft,
126 S. Ct. 2422 (2006)…………………………………………………………………...…..11-12

Foremost-McKesson, Inc. v. Islamic Republic of Iran,
905 F.2d 438 (D.C. Cir. 1990)………………………………………………………….…………6

Frontera Res. Azer Corp. v. State Oil Co. of the Azer. Republic,
479 F. Supp. 2d 276 (S.D.N.Y. 2007)……………………………………………………..…….29

Int’l Shoe Co. v. Washington,
326 U.S. 310 (1945)………………………………………………………………………..…….28

Jarecki v. G.D. Searle & Co.,
367 U.S. 303 (1961)………………………………………………………………….………25-26

John R. Sand & Gravel Co. v. United States,
128 S. Ct. 750 (2008)……………………………………………………………………….……15

*Kaiser Aluminum & Chem. Corp. v. Bonjorno,
494 U.S. 827 (1990)……………………………………………………………………...…..12, 19

Kalil v. Johanns,
407 F. Supp. 2d 94 (D.D.C. 2005)…………………………………………………….…………25

Landgraf v. USI Film Prods.,
511 U.S. 244 (1994)……………………………………………………………………..……….11

Lindh v. Murphy,
521 U.S. 320 (1997)………………………………………………………………………..…….11

National Insulation Transp. Committee v. Interstate Commerce Com.,
683 F.2d 533 (D.C. Cir. 1982)………………………………………………..….…………...17-18

Nat’l R.R. Passenger Corp. Lexington Ins. Co. ,
357 F. Supp. 2d 287 (D.D.C. 2005)……………………………………………..……………….16

O’Gilvie v. United States,
519 U.S. 79 (1996)……………………………………………………….………………………25

Qi-Zhuo v. Meissner,
70 F.3d 136 (D.C. Cir. 1995)……………………………………….……………………………17

Pfizer, Inc. v. Gov’t of India,
434 U.S. 308 (1978)……………………………………………………….……………………..30



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*Phillips v. Heine,
984 F.2d 489 (D.C. Cir. 1993)……………………………………………………………….19, 20

Phoenix Consulting, Inc. v. Republic of Angola,
216 F.3d 36 (D.C. Cir. 2000)…………………………………………………..………….........6, 9

Price v. Socialist People’s Libyan Arab Jamahiriya,
294 F. 3d 82 (D.C. Cir. 2002)……………………………………………..………….28, 29, 30-31

Reid v. Covert,
354 U.S. 1 (1957)………………………………………….……………………………………..30

Republic of Argentina v. Weltover, Inc.
504 U.S. 607 (1992)……………………………………………………………………………….9

*Roeder v. Islamic Republic of Iran,
195 F. Supp. 2d 140 (D.D.C. 2002)………………………..………………………………..….8, 9

Sandvik v. United States,
177 F.3d 1269 (11th Cir. 1999)………………………………………..……………….….……..20

Schumann v. C.I.R.,
827 F.2d 808 (D.C. Cir. 1988)………………………………………...…………………………12

Sinochem Int’l Co. v. Malay Int’l Shipping Corp.,
127 S. Ct. 1184 (2007)…………………………………………………………….……….…….14

Steel Co. v. Citizens for Better Env’t,
523 U.S. 83 (1998)…………………………………………………………….……….………...14

Texas Trading & Milling Corp. v. Federal Republic of Nig.,
647 F.2d 300 (2d Cir. 1981)………………………………………………………………….29, 30

TMR Energy Ltd. v. State Property Fund of Ukr.,
411 F.3d 296 (D.C. Cir. 2005)…………………………………………………………………...29

TRW Inc. v. Andrews,
534 U.S. 19 (2001)…………………………………………………………...………………17-18

United States v. Nordic Village,
503 U.S. 30 (1992)………………………………………………………………..…..….………27

United States v. Noriega,
117 F.3d 1206 (11th Cir. 1997)…….………………………………………………..….………..23



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United States v. Verdugo-Urquidez,
494 U.S. 259 (1990)…………………………………………………………………….………..30

Verlinden B.V. v. Central Bank of Nigeria,
461 U.S. 480 (1983)………………………………………………………………..…………….22

*Vine v. Republic of Iraq,
459 F. Supp. 2d 10 (D.D.C. 2006)……………………………………………….………14, 17, 20

World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286 (1980)…………………………………………………………………….………..28

Yanco v. United States,
258 F. 3d 1356 (Fed. Cir. 2001)…………………………………………………………….……25

Ye v. Zemin,
383 F.3d 620 (7th Cir. 2004)….………………………………………………………………….22


FEDERAL RULES, STATUTES, AND REGULATIONS

Fed. R. Civ. P. 12(b)(1)………………………………………….……………………..……...4, 25

Fed. R. Civ. P. 12(b)(6)…………………………………………….……………..……….4, 16, 25

Fed. R. Civ. P. 12(h)(2)……………………………………………………………………..……..5

Fed. R. Civ. P. 15(a)……………………………………………………………………………..10

28 U.S.C. §1604…………………………………………………………..………….....................5

28 U.S.C. §1607………………………………………………………………………….………..6

28 U.S.C. §1605(a)(2) (repealed 2008)……………………………………….……..………...….5

28 U.S.C. §1605(a)(5) (repealed 2008)………………………………………………………...…5

28 U.S.C. §1605(a)(7) (repealed 2008)…..……………………………………….………...passim

28 U.S.C. §1605(f) (repealed 2008)…………………………………………………...……passim

28 U.S.C. §1605A…………………………………………………………….…………..…passim

28 U.S.C. §1605A(a)………………………………………………………………….….....passim

28 U.S.C. §1605A(a)(i)………………………………………………………………………5, 6, 8

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28 U.S.C. §1605A(a)(2)…………………………………………………………..………….……8

28 U.S. C. §1605A(c)……………………………………………………………….….…………9

“The Foreign Sovereign Immunities Act”, 28 U.S.C. §1601, et. seq…………………….…passim

The National Defense Authorization Act §1083, Pub. L. No. 110-181 (2008)…………......passim

Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. 104-132, 110 Stat. 1241 (1996)…………………………………………..……….……..26


LEGISLATIVE MATERIALS

Foreign Sovereign Immunities Act: Hearing Before the Subcomm. On Cts. And Administrative
Practice, S. Comm. on the Judiciary, 103rd Cong. 28 (June 1994)………………….…………...27

H.R. 934 H. Rep. 103-172, 103rd Congress, August 16, 1994……………………………….26, 27

Comprehensive Antiterrorism Act of 1995: Report of the Comm. on the Judiciary, H.R. Rep.
No. 104-383 (1995)………………………………………………………………………..……..27


OTHER AUTHORITIES

Blacks Law Dictionary (8th Ed. 2004)…………………………………………………………...25

Lori Fisler Damrosch, Foreign States and the Constitution, 73 Va. L. Rev. 483, 519-520 & no.
150 (1987)………………………………………………………………………………………..30

Oxford English Dictionary (2008 ed.),
available at http://www.oed.com…..……………………………………………….……………25

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA






Plaintiffs,












v.


Reverend JOSE MANUEL VEGA FRANQUI,
Individually and as Administrator of the
Estate of VASTHI ZILA MORALES DE VEGA,
et al.











GREAT SOCIALIST PEOPLE’S LIBYAN

ARAB JAMAHIRIYA, et al.










Defendants.
























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



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MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF LIBYA’S MOTION TO DISMISS THE AMENDED COMPLAINT

Defendant, Great Socialist People’s Libyan Arab Jamahiriya a/k/a Libya (“Libya”)1,

through undersigned counsel, respectfully submits this Memorandum of Points and Authorities

in Support of its Motion to Dismiss the Amended Complaint.

I.

INTRODUCTION

The Amended Complaint seeks recovery for injuries sustained by the plaintiffs in May

1972, nearly thirty-four (34) years before the Complaint was filed. Even with the Amendment to

the Complaint and the January 2008 amendment to the FSIA, there are two fully dispositive

reasons to dismiss plaintiffs’ claims with prejudice: (1) Libya is immune from suit under the

Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1601, et seq.; and (2) the claims, all of

which arose in 1972, are time-barred. The Amended Complaint suffers from the same

deficiencies that were present in the original Complaint, even if the newly amended § 1605A

applied, which it does not.

1 This Motion to Dismiss and Memorandum in Support is filed on behalf of Libya only because plaintiffs have not
effectuated service upon Colonel Muammar Qadhafi or the Libyan External Security Organization.

Case 1:06-cv-00734-RBW Document 40 Filed 05/02/2008 Page 12 of 42






A.

The Court Lacked Jurisdiction Over the Original Complaint.

The Amended Complaint relies upon the newly enacted 28 U.S.C. § 1605A as the basis

for subject-matter jurisdiction. The Court does not have subject-matter jurisdiction to hear

plaintiffs’ claims against Libya under 28 U.S.C. § 1605A(a), because the Court lacked subject-

matter jurisdiction over plaintiffs’ original Complaint.

As described in Libya’s brief in support of its Motion to Dismiss the original Complaint

(See Docket Entry 22, herein), Libya is immune from suit for these plaintiffs’ claims because it

was not designated as a state sponsor of terrorism in 1972 and was not later designated as a result

of the act that allegedly caused the plaintiffs’ injuries. In addition, plaintiffs’ claims were time-

barred under § 1605(a)(7). The recent amendment to the FSIA as part of the National Defense

Authorization Act does not resuscitate plaintiffs’ fatally flawed claims. It does not provide

jurisdiction and does not make plaintiffs’ stale claims timely. Since the Court lacked subject-

matter jurisdiction to hear plaintiffs’ original claims, this action could not have been “adversely

affected” because neither § 1605(a)(7) nor the Flatow Amendment created a cause of action as

required to assert claims under § 1605A.

In the alternative (and at a minimum), the personal injury claims brought by indirect

victims of terrorism must be dismissed because the Court lacks jurisdiction under § 1605A.

B.

Summary of Factual Allegations.

The factual allegations demonstrate that the Amended Complaint should be dismissed.

For purposes of this Motion to Dismiss only, and without conceding any of these facts or

waiving any defenses, Libya states the following facts as alleged by plaintiffs and includes

reasonable inferences from those alleged facts.

On April 21, 2006, plaintiffs filed a 13-count Complaint, seeking recovery for injuries

sustained from a terrorist attack that occurred nearly thirty-four (34) years earlier – on May 30,

2

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1972 – at Lod Airport near Tel Aviv, Israel. (Am. Complaint, ¶¶ 6-16). Plaintiffs allege that



Libya and Syria have been designated as state sponsors of terrorism since 1984. (Am.

Complaint, ¶ 17). Allegedly, Libya, Syria and the other defendants provided material support

and resources to organizations such as the Japanese Red Army (“JRA”). According to plaintiffs,

Libya provided this support as part of its “sovereign policy of international terrorism.” (Am.

Complaint, ¶ 17, 33). Plaintiffs allege that Libya’s acts proximately caused their personal

injuries. (Id). Libya and Syria also allegedly provided safe haven to the JRA among other

groups. (Am. Complaint, ¶ 35).

Plaintiffs allege that terrorists associated with the JRA carried out the attack. Two

terrorists died during the attack; one survived and was arrested. (Am. Complaint, ¶ 48). The

terrorist who survived was tried and convicted in Israel. According to plaintiffs, the terrorist

confessed to the attack. (Am. Complaint, ¶ 53). The surviving terrorist allegedly “described the

terrorist training in Syria and the material support the JRA received from all co-Defendants, all

of which is part of his trial record.” (Am. Complaint, ¶ 53).

By plaintiffs’ own allegations, they had significant information about the attack and the

possible responsible parties as a result of the confession by the surviving terrorist. (Am.

Complaint ¶¶ 53, 54). Consequently, plaintiffs could have and should have brought these claims

long before April 21, 2006.

In complete absence of allegations that establish that an exception to sovereign immunity

applies and in the complete absence of allegations that demonstrate the reasons why plaintiffs

took nearly 34 years to file the original Complaint, the Amended Complaint must be dismissed in

its entirety.

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II.

ARGUMENT

A.

Summary of Argument.

Plaintiffs are seeking recovery for personal injuries sustained in Israel nearly thirty-four

(34) years prior to the filing of the original Complaint. The Amended Complaint should be

dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(1) because this Court lacks subject

matter jurisdiction. Libya is immune from suit for these claims under the FSIA and the

allegations of the Amended Complaint demonstrate that none of the exceptions to sovereign

immunity apply to plaintiffs’ claims.

Plaintiffs incorrectly allege that Libya is not immune based on the exception to immunity

set forth in 28 U.S.C. § 1605A, newly enacted in January 2008. This exception to sovereign

immunity does not apply to plaintiffs’ claims against Libya because Libya was not designated as

a state sponsor of terrorism when the act occurred in 1972. Consequently, this Court does not

have subject matter jurisdiction over this matter. The failure of this exception to apply to this

matter is wholly dispositive of the case and the Court need not consider any of other meritorious

issues raised in this brief.

For example, the Amended Complaint should also be dismissed pursuant to Fed.R.Civ.P.

12(b)(6) because the nearly 34-year-old claims are time-barred because the statute of limitations

has run and plaintiffs have not established that the application of equitable tolling allowed

plaintiffs to wait until April 21, 2006 to file the original Complaint.

Both of these arguments are fully dispositive and the Court should dismiss with prejudice

the Amended Complaint against Libya in its entirety.2


2 In the event that the Court does not agree with Libya’s position that there are two fully dispositive bases to dismiss
the Amended Complaint, Libya expressly reserves the right to challenge the legal sufficiency of plaintiffs’ claims as

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B.



The Amended Complaint Should Be Dismissed Because This Court Lacks
Subject Matter Jurisdiction.















The Amended Complaint should be dismissed, in its entirety, pursuant to Rule 12(b)(1),

because this Court does not have subject matter jurisdiction.

The Amended Complaint contends that Libya is subject to suit in the United States

District Court pursuant to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.

§ 1605A(a)(i).3 Plaintiffs admit that Libya is a foreign state, but incorrectly allege that it is not

immune from suit because of the exception to sovereign immunity set forth in § 1605A. The

Amended Complaint does not establish that this exception, or any other exception to sovereign

immunity, applies to the facts of this case.

It is well-settled that 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). The FSIA grants immunity to “foreign states” as that term is defined by the statute, 28

U.S.C. § 1604. Section 1604 states in relevant part, “. . . 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

1605-1607 of this chapter.” 28 U.S.C. § 1604. The grant of immunity under the FSIA is subject

only to the exceptions expressly provided in the FSIA. See Doe v. Israel, 400 F. Supp. 2d 86,

104 (D.D.C. 2005); 28 U.S.C. § 1604.

“Under the FSIA, a foreign state is immune from the jurisdiction of both the federal and

the state courts except as provided by . . . nine specifically enumerated exceptions, see id.,

permitted by the Federal Rules of Civil Procedure. See e.g., Fed.R.Civ.P. 12(h)(2).

3 The original Complaint was brought under 28 U.S.C. §§ 1605(a)(2)(5) and (7). Libya filed a Motion to Dismiss
which was briefed and pending when the FSIA was amended. As more fully described in Libya’s original Motion to
Dismiss, plaintiffs’ claims did not satisfy the criteria of § 1605(a)(2)(5) or (7) and were time-barred when the
original Complaint was filed. The amendment to § 1605 does not salvage or resuscitate plaintiffs’ fatally defective
claims.

5

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§ 1605(a)(1) through (7), (b), (d), . . . see, id., § 1607. If no exception applies, a foreign



sovereign’s immunity under the FSIA is complete: The district court lacks subject matter

jurisdiction over the plaintiff’s case. See, id., § 1330(a). Thus, the sovereign has an immunity

from trial and the attendant burdens of litigation, and not just a defense to liability on the merits.”

Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000) (emphasis

added) (citing Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438 (D.C.

Cir. 1990)). The plaintiffs incorrectly allege that this Court has jurisdiction over the claims

against Libya pursuant to § 1605A(a)(i) of the FSIA. The allegations in the Amended Complaint

do not fall within this provision, or any of the exceptions to sovereign immunity.

The Terrorism Exception to sovereign immunity, which was originally enacted in 1996 as

§ 1605(a)(7), was amended in January of 2008 and replaced with § 1605A. The amended

provision is a vehicle for nationals of the United States injured or killed by acts of terrorism to

pursue a claim for money damages in the United States if certain criteria are met. It states:

Ҥ 1605A.

“(a)

Terrorism exception to the jurisdictional
immunity of a foreign state

IN GENERAL.–

“(1) NO IMMUNITY.–A foreign state shall not be
immune from the jurisdiction of courts of the United States
or of the States in any case not otherwise covered by this
chapter 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 if such act or provision of material
support or resources 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.

under this section if–

“(2) CLAIM HEARD.–The court shall hear a claim



“(A)(i)(I) the foreign state was designated

as a state sponsor of terrorism at the time the act
described in paragraph (1) occurred, or was so
designated as a result of such act, and, subject to

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“(II) in the case of an action that is

subclause (ii), either remains so designated when the claim
is filed under this section or was so designated within the 6-
month period before the claim is filed under this section; or

refiled under this section by reason of section
1083(c)(2)(A) of the National Defense Authorization Act
for Fiscal Year 2008 or is filed under this section by reason
of section 1083(c)(3) of that Act, the foreign state was
designated as a state sponsor of terrorism when the original
action or the related action under section 1605(a)(7) (as in
effect before the enactment of this section) or section 589
of the Foreign Operations, Export Financing, and Related
Programs Appropriations Act, 1997 (as contained in
section 101(c) of division A of Public Law 104-208 was
filed; . . . .”


28 U.S.C. § 1605A (emphasis added). Though it replaced § 1605(a)(7), § 1605A does not

change the primary prerequisite to the exception to immunity – that the foreign state was

designated as a state sponsor of terrorism “at the time the act . . . occurred or was later so

designated as a result of such act.”

“This exception applies only if the defendant foreign state was designated as a state

sponsor of terrorism at the time the alleged acts of torture occurred.” Acree v. Republic of Iraq,

370 F.3d 41, 44 (D.C. Cir. 2004) (citing 28 U.S.C. § 1605(a)(7)(A)). Plaintiffs allege that Libya

has been designated a state sponsor of terrorism since 1984. (Am. Complaint, ¶ 17).4

Plaintiffs cannot establish that the terrorism exception to sovereign immunity applies to

Libya in this case. At the time of the incident, May 30, 1972, Libya was not designated as a state

sponsor of terrorism. Moreover, plaintiffs have not alleged that Libya was designated as a state

sponsor of terrorism – seven years later – as a result of such act. In other words, there are no

allegations that the attack at the Lod Airport, and Libya’s alleged involvement in that attack was

the reason that Libya was designated as a state sponsor of terrorism seven years later. Without

such facts, the Amended Complaint does not establish that the exception to immunity found in

4 Libya was placed on the state sponsor of terrorism list on December 29, 1979 and removed from the list in 2006.

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§ 1605A(a)(i) applies to Libya for these claims.



The Amended Complaint alleges that “Defendants [Syria] and [Libya] are foreign states

designated “state sponsors of terrorism” within the meaning of the Export Administration Act . .

. and the Foreign Assistance Act . . . since January 19, 1984, as the term “states sponsors of

terrorism” is defined under 28 U.S.C. § 1605A and 28 U.S.C. § 1605, note . . .” (Am.

Complaint, ¶ 17) (emphasis added). There are no allegations (and plaintiffs have not shown in

their response to defendant’s Motion to Dismiss the original Complaint) that Libya was so

designated as a result of the attack at the Lod Airport. Because they cannot make such a

showing, § 1605(a)(7) did not apply and § 1605A does not apply and cannot be the basis for this

Court to exercise subject matter jurisdiction over the plaintiffs’ claims. See, Roeder v. Islamic

Rep. of Iran, 195 F. Supp. 2d 140, 159-160 (D.D.C. 2002) (the court did not have jurisdiction

over the plaintiffs’ claims against Iran relating to the 1979-1980 hostage taking because Iran was

not on the state sponsor of terrorism list at that time).

The language of the statute is clear and unequivocal. The court shall hear a claim under

this section only if “the foreign state was designated as a state sponsor of terrorism at the time

the act described [above] occurred, or was designated as a result of such act.” § 1605A(a)(2).

Plaintiffs admit that their claims against Libya do not satisfy this requirement. Plaintiffs admit

that Libya was not designated as a state sponsor of terrorism in 1972 and plaintiffs have alleged

no facts to support that Libya was later designated as a result of the attack at Lod Airport or

made any showing of that fact in response to defendant’s Motion to Dismiss the original

Complaint. The plaintiffs allege simply that Libya was designated as a state sponsor of terrorism

in 1984 and that Libya provided “material support and resources to international terrorist

organizations.” (Am. Complaint, ¶ 17). These allegations are not sufficient to satisfy the

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requirements of § 1605A. See, Roeder, 195 F. Supp. 2d at 161 (general allegations that a



sovereign was later designated as a state sponsor of terrorism because of support for terrorism do

not satisfy state sponsor of terrorism exception).

The FSIA codified the restrictive view of sovereign immunity and the exceptions to

immunity are not to be casually applied. See generally, Republic of Argentina v. Weltover, Inc.,

504 U.S. 607, 612 (1992). On the contrary, the exceptions to immunity set forth in the FSIA,

including § 1605A, are to be carefully analyzed before being applied. It is well settled that if the

claims asserted in a particular complaint do not fall within an exception to immunity, then the

sovereign enjoys immunity and the Court does not have jurisdiction. See, Phoenix Consulting,

261 F.3d at 39.

Plaintiffs have not alleged and cannot demonstrate that Libya was included on the State

Sponsor of Terrorism List in 1972 or that it was later added as a result of the attack at the Lod

Airport in May 1972. Consequently, plaintiffs cannot rely on this exception to sovereign

immunity and the Amended Complaint should be dismissed. The failure of plaintiffs to meet this

“state sponsor of terrorism” requirement for subject matter jurisdiction under 28 U.S.C. § 1605A

(as they failed previously under § 1605(a)(7) is dispositive of this case.

C.

Plaintiffs’ Amended Complaint Does not Meet the Requirements of 28 U.S.C.

§ 1605A.





















Section 1605A was created by § 1083 of the National Defense Authorization Act of

2008, Pub L. No. 110-181 (the “2008 Defense Act”). The Terrorism Exception to Immunity

found in § 1083 of the Defense Act amends the FSIA in certain respects. (A copy of § 1083 of

the National Defense Authorization Act of 2008 is attached hereto as Exhibit A). Among other

things, § 1605A creates a new cause of action for certain types of terrorism-related claims

against foreign states, and repeals former § 1605(a)(7) and § 1605(f). See 28 U.S.C. 1605A(c)

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and § 1083(b). By filing their Amended Complaint, plaintiffs seem to believe that the new



legislation applies retroactively to their claims. However, plaintiffs’ claims under § 1605A are

barred by the express language of § 1083(c) entitled “Application to Pending Cases”. The new

legislation’s provision of application to pending cases does not apply to the present case.

Plaintiffs’ claims were not “adversely affected” by the lack of a cause of action against Libya

under either § 1605(a)(7) or the Flatow Amendment. Therefore, the “prior actions” provision of

§ 1083(c)(2)(A) does not apply in this case. In addition, plaintiffs cannot show that a separate

action arising out of an act or incident has been timely commenced pursuant to 28 U.S. C. §

1605(a)(7) as required in order to bring new claims as a “related action” under § 1083(c)(3). 5

Therefore, the newly enacted § 1605A does not apply to plaintiffs’ action.










Section 1083(c), the “Application to Pending Cases”
Provision of the Revised Legislation, by its Express Terms

1.

Does not Apply to Plaintiffs’ Complaint.









Plaintiffs seemingly have filed their Amended Complaint under the mistaken belief that

the new legislation applies “retroactively” to their Complaint, and that they are entitled to re-file

their claims based upon § 1083(c). However, the language of Section 1083(c) and the plain

meaning of the statute is clear that Congress did not intend the provisions of that section to

apply to the present case.

Section 1083(c) is entitled “Application to Pending Cases” and states in relevant part:

(c) Application to Pending Cases-

(1) IN GENERAL- The amendments made by this section shall
apply to any claim arising under section 1605A of title 28, United
States Code.



5 Plaintiffs filed their Amended Complaint as a matter of right pursuant to Fed.R.Civ.P. 15(a). Accordingly, the
grounds upon which plaintiffs base their § 1605A claims against defendant are unknown at this time. Nonetheless,
as shown below, plaintiffs do not meet the criteria of any subsection of § 1083(c) which could arguably apply to the
facts of this case and plaintiffs’ § 1605A claims should therefore be dismissed.

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(2) PRIOR ACTIONS-

(A) IN GENERAL- With respect to any action that--

(i) was brought under section 1605(a)(7) of title 28, United States
Code, or section 589 of the Foreign Operations, Export Financing,
and Related Programs Appropriations Act, 1997 (as contained in
section 101(c) of division A of Public Law 104-208), before the
date of the enactment of this Act,

(ii) relied upon either such provision as creating a cause of
action,

(iii) 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

(iv) as of such date of enactment, is before the courts in any form,
including on appeal or motion under rule 60(b) of the Federal
Rules of Civil Procedure, that action, and any judgment in the
action shall, on motion made by plaintiffs to the United States
district court where the action was initially brought, or judgment in
the action was initially entered, be given effect as if the action had
originally been filed under section 1605A(c) of title 28, United
States Code.


Pub. Law No. 110-181, § 1083(c)(1-2) (emphasis added).



As such, Section 1083(c) allows for retroactive application of Section 1605A(c) to only a

limited number of “prior actions” that satisfy the express statutory criteria set forth in Section

1083(c)(2)(A). Its conditional nature contrasts with the type of unequivocal statements the

Supreme Court previously has found to provide the blanket retroactive application that plaintiffs

seek. Compare with Lindh v. Murphy, 521 U.S. 320, 329 n.4 (1997) (identifying the following

as an example of a statement that might qualify as sufficiently clear to have retroactive effect:

“[This Act] shall apply to all proceedings pending on or commenced after the date of enactment

of this Act.”) (emphasis added) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 260

(1994)); Fernandez-Vargas v. Ashcroft, 126 S. Ct. 2422, 2428 (2006) (explaining that courts

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apply the presumption against retroactivity by construing a statute as inapplicable to a past act



“in the absence of a clear indication from Congress that it intended such a result”) (citation

omitted). Because retroactive application of 28 U.S.C. § 1605A to all cases may not be

presumed – indeed, Congress intentionally limited its application to a particular subset of cases

that fit the criteria of Section 1083(c)(2)(A), see Schumann v. C.I.R