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Case 1:06-cv-00734-RBW Document 44 Filed 06/26/2008 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Plaintiffs,

v.

CA No. 06-734 (RBW)

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.

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS AMENDED COMPLAINT

Plaintiffs, by and through undersigned counsel, oppose Libya’s motion to dismiss

plaintiffs’ Amended Complaint and to escape all liability for the Libyan-sponsored massacre at

the Lod Airport in Israel.

Libya’s arguments concerning this Court’s purported lack of subject matter and personal

jurisdiction and statute-of-limitations bars to this action have all been either expressly or

implicitly rejected in many other similar cases. These arguments are especially unavailing in

light of the broad new legislation recently enacted into law intended specifically to broaden and

to deepen the rights of terrorism victims against state sponsors of terrorism such as Libya. The

National Defense Authorization Act for Fiscal Year 2008, P.L. 110-181, January 28, 2008, in

response to a number of decisions of this court and of the D.C. Circuit narrowly interpreting

some provisions of the prior version of Section 1605(7) of the Foreign Sovereign Immunities Act

(“FSIA”), legislatively overruled those decisions and re-affirmed Congressional intent to provide

broadly based federal rights of action against state sponsors of terrorism.

Case 1:06-cv-00734-RBW Document 44 Filed 06/26/2008 Page 2 of 20

The Act expressly affirmed the existence of a federal cause of action against state

sponsors of terrorism, extended applicable limitations periods, made available punitive damages

against state sponsors of terrorism, and provided extended and broad new opportunities for

victims of terrorism to bring new or related actions in cases where similar actions were already

pending. Plaintiffs in this case took advantage of those provisions by filing an amended

complaint within the legislatively-prescribed time period of 60 days, and are entitled to the full

benefits of that recent legislation.

Libya’s principal argument is that it is immune from suit because it was not on the list of

state sponsors of terrorism at the time of the Lod Airport attack in 1972. However, that list did

not even come into existence until 1979, when Libya became one of its charter members.

Moreover, at the time the list was first promulgated, it was well-known at the highest levels of

the United States government, including at the State Department, that Libya had provided

material support and resources to a number of its “proxy” terrorist organizations, such as the

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

Palestine (“PFLP”), and the Japanese Red Army (“JRA”), which carried out the attack at Lod on

behalf of Libya. Libya was put on the terrorism list precisely because of its role in promoting the

Lod Airport attack as well as other similar attacks prior to 1979, when the list was first created

and published.

Libya also argues that it is immune from suit because the Court has no personal

jurisdiction over it, a proposition expressly and repeatedly rejected by this Court as well as by the

D.C. Circuit. Finally, Libya argues that this action is time-barred because (i) although it was

originally filed under 28 U.S.C. Section 1605(a)(7) of the FSIA within the required 10 years of

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passage of that provision, it should be considered time-barred under that section, and (ii) none of

the remedial provisions of the recently passed legislation expressly extending or waiving statutes

of limitations apply to it. Both propositions are wrong. First, as this Court has repeatedly held,

Section 1605(a)(7) actions, by their plain language, are not time-barred so long as they were filed

within ten years of the passage of the legislation enacting Section 1605(a)(7) into law, as was

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this action. Second, even if they would have been time-barred under former Section 1605(a)(7),

the remedial legislation of the recent Defense Authorization Act expressly extended and/or

waived applicable limitations periods to enable victims of terrorism to seek relief for their

injuries received in connection with any terrorist act for which an action was already “pending”

or to which any new action is “related.”

BACKGROUND

Plaintiffs filed their original Complaint in this case on April 21, 2006, less than 10 years

after the passage of the FSIA amendments authorizing such suits on April 24, 1996. Plaintiffs are

survivors and close family members of those killed in a terrorist attack on Lod Airport in Israel

carried out on May 30, 1972. Most of the plaintiffs and their survivors were from Puerto Rico,

and they were participants in a pilgrimage tour to Israel. Their flight stopped in Rome, Italy,

where twelve people boarded, including the three Japanese Red Army Terrorists who carried out

the attack. The terrorists were aided by Libyan agents and employees acting in the course of their

“service” to their country. Amended Complaint (“AC”) ¶¶ 31-36, 41-44. Those Libyan officials,

agents, and employees used their diplomatic pouch privileges to avoid inspection and to smuggle

1

Those FSIA amendments were enacted into law by the Antiterrorism and Effective

Death Penalty Act, Pub. L. No. 104-132, § 221 (a), 100 Stat. 1214 (April 24, 1996) previously
codified at 28 U.S.C. § 1605(a)(7).

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guns and grenades on to the airplane that were later used in the attack at Lod Airport in Israel. Id.

¶ 44.

The terrorists, after disembarking from the same flight as plaintiffs, waited for their

luggage to arrive in the baggage claim area. When the luggage arrived, the three terrorists

removed guns and grenades that had been smuggled aboard using the diplomatic pouch

privileges provided by Libyan agents, and opened fire on the passengers grouped around the

baggage claim area. Twenty-four people died, and seventy-eight more were injured in one of the

most horrific and deadly terrorist attacks at any airport in history. AC, ¶¶ 47-48.

The United States Department of State described the role of Libyan leader Muammar

Qadhaffi as follows:

[Qadhaffi] went out of his way to praise the Japanese perpetrators of
the Lod Airport Massacre for having displayed the ‘true fedayeen
spirit.’ He also claimed that the [Libyan Arab Republic Government]
is backing morally and financially ‘all the Fedayeen.’ … [Qadhaffi]
ipso facto abets Fedayeen terrorist activities with Libyan funds and
defends their operations anywhere.

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), at A-176, *4.

(Quoted in Declaration of Bruce D. Tefft, attached hereto, at 7. )

ARGUMENT

I.

THIS COURT HAS SUBJECT MATTER JURISDICTION OVER LIBYA AS A
STATE SPONSOR OF TERRORISM.

Libya was on the list of state sponsors of terrorism from the moment that list was first

created and published on December 29, 1979, as Libya itself admits. Libya Memo. in Support of

Motion to Dismiss at 7, n.4. See Export Administration Act, 50 U.S.C. App. §2405(j); 45 Fed.

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Reg. 1595, 1596 (Jan. 8, 1980)(codified at 15 C.F. R. § 385.4(d)(1980)). Libya was on the list

2

at the time plaintiffs herein filed their original Complaint on April 21, 2006. That Complaint

3

properly alleged that Libya was a foreign state designated as a “state sponsor of terrorism within

the meaning of the Export Administration Act of 1979 (50 U.S.C. App. § 2405) ....” Complaint,

¶ 17. The Complaint properly grounded its jurisdiction and causes of action against Libya and

other defendants on 28 U.S.C. § 1605(a)(7) and the “Flatow Amendment,” 28 U.S.C. § 1605

Note. Complaint, ¶¶ 17-26.

Plaintiffs filed their First Amended Complaint on March 28, 2008, as a matter of right,

because Libya had not to that date ever filed an Answer. That date was within the 60-day period

provided by the National Defense Authorization Act of 2008 (signed into law on January 28,

2008) to file new or related actions or to file motions related to pending actions. In their First

Amended Complaint, plaintiffs properly alleged the requisites for subject matter jurisdiction

under newly enacted Section 1605(A)(a)(1) as well as under Section 1605 Note. Amended

Complaint, ¶¶ 1, 4, 17-26. Moreover, plaintiffs expressly alleged that “Defendants ... satisfy the

requirements to bring such an action.... Defendants have been designated foreign state sponsors

of terrorism and the acts complained of are among those described in [former] Section 1605(a)(7)

of Title 28 of the U.S.C.” Amended Complaint at 5, note 2.

2

In their Amended Complaint, because of a typographical oversight, Plaintiffs

mistakenly alleged that Libya was placed on the terrorism list in 1984, not 1979. Amended
Complaint, ¶ 17. As defendant concedes, however, Libya was on the list of states designated as
state sponsors of terrorism from the list’s inception in 1979.

3

Libya remained on the list from the time the list was first created in 1979 until removed

later in 2006. See Fed. Reg. 31,909 (June 1, 2006); 71 Fed. Reg. 39,696-02 (July 13, 2006).

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A.

Libya Was Designated as a State Sponsor of Terrorism When the List Was
First Promulgated Precisely Because of its Role in the Lod Airport Massacre.

Defendant Libya argues that the Court lacks subject matter jurisdiction because the

injuries suffered by plaintiffs and their survivors at the Lod Airport occurred in 1972, at a time

before any state sponsor of terrorism was formally designated as such under the Export

Administration Act of 1979. This truism is unavailing to relieve Libya of liability, however. A

statutory requirement that a state sponsor of terrorism be on a particular list cannot bar an action

based on events that occurred even before that list existed. The purpose of the requirement is

plainly to remove the sovereign immunity of a state sponsor of terrorism for its sponsorship of

terrorism, and to make it liable for the damages it causes as a result of its policies and actions.

Libya was designated as a state sponsor of terrorism at the outset, when the list first came into

existence in 1979.

Libya also either ignores or dismisses the fact that Libya was put on the list precisely

because of its actions in sponsoring the Lod Airport massacre and other terrorist attacks that

occurred in the years prior to inception of the list in 1979. The attached Declaration of Dr. Bruce

Tefft shows that Libya’s role in the Lod Airport attack was known at the highest levels of the

United States government, including at the State Department, the National Security Council, and

the Department of Defense, and was a primary reason for its designation as a state sponsor of

terrorism in 1979. Dr. Tefft has been qualified as an expert witness on terrorism in more than

half a dozen recent cases before this Court, and has 33 years experience both within the CIA and

outside the Agency as a consultant on counter-terrorism. In his Declaration, he concluded that

“Libya and Libyan officials and instrumentalities provided material support and resources to the

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terrorists who carried out the Lod Airport massacre in 1972, and ... this attack was a primary

reason why Libya was subsequently designated by the United States as a state sponsor of

terrorism.” Tefft Declaration, ¶ 19.

Even Libya concedes that, if Libya was put on the terrorism list because of its role in the

attack which is the subject of this action, then it is properly subject to suit. Memo. in Support of

Motion To Dismiss at 8. Libya seeks, however, to elevate form over substance by arguing that

plaintiffs did not expressly allege that Libya was put on the terrorism list because of the Lod

massacre. However, as noted above, plaintiffs did expressly allege that Libya and other

defendants “satisfy the requirements to bring such an action” because “they were designated

foreign state sponsors of terrorism....” Amended Complaint at 5, n.2. See also Amended

Complaint ¶¶ 1, 3, 17, properly alleging that the Court has jurisdiction under 28 U.S.C. § 1605A

and §1605 Note.

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain

statement of the claim, giving the defendant fair notice of the claim and the grounds upon which

it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing Fed.

R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47(1957)).

It is not necessary for the plaintiff to plead all elements of his prima facie case in the

complaint, Swierkiewicz v. Sonoma N.A., 534 U.S. 506, 511-14 (2002), or to "plead law or match

facts to every element of a legal theory." Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000).

Accordingly, "the accepted rule in every type of case" is that a court should not dismiss a

complaint for failure to state a claim unless the defendant can show beyond doubt that the

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plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Warren

v. District of Columbia, 353 F.3d 36, 37 (D.C. Cir. 2004); Kingman Park, 348 F.3d at 1040.

Here, as the attached Declaration of Bruce Tefft demonstrates, there is ample support for the

proposition that Libya was put on the terrorism list because of its involvement in the Lod Airport

massacre, and therefore that plaintiffs meet the requirements for subject matter jurisdiction over

Libya even under defendant’s narrow reading of that requirement.

If, contrary to our argument, the Court nonetheless believes a more specific allegation in

the Amended Complaint is required, plaintiffs respectfully request leave to amend their

Complaint to make such an allegation. E.g., Owens v. Republic of Sudan, 374 F. Supp.2d 1 at

23-24 (D.D.C. 2005)(allegations of Complaint too conclusory but plaintiffs given leave to

amend).

B.

The Recently Enacted Defense Authorization Act Independently Confers
Subject Matter Jurisdiction over Plaintiffs’ Amended Complaint against
Libya.

Section 1605A of the Foreign Sovereign Immunities Act was created by Section 1083 of

the National Defense Authorization Act of 2008, Pub. L. No. 110-81 (“Defense Authorization

Act”). (A copy of this legislation is attached hereto for the Court’s convenience). This provision

amended the FSIA in several important respects, expressly repealing former Sections 1605(a)(7)

(under which this action was originally filed) and Section 1605(f), which provided the applicable

limitations period of 10 years from the date of its enactment, April 24, 1996. Section 1605A

provided a new federal cause of action against state sponsors of terrorism, provided for the

possibility of punitive damage awards against them, and extended and/or waived applicable

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statutes of limitations to allow plaintiffs such as those here to claim damages against state

sponsors of terrorism.

By its express terms, Section 1605A provides that an action such as this can be

maintained against a foreign state sponsor of terrorism when “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....” Section 1605A(a)(2)(A)(i)(I). As shown above, plaintiffs

meet this requirement.

However, even if plaintiffs could not meet this requirement, Section 1605A provides in

the alternative that the “court shall hear a claim under this section if–-....in the case of an action

that is 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)...was filed.” Section 1605A(a)(2)(A)(i)(II). That is, so long as Libya was

designated as a state sponsor of terrorism when the original Complaint in this case was filed, the

Defense Authorization Act provides that it cannot escape the Court’s subject matter jurisdiction

in any action that is “re-filed under this Section by reason of Section 1083(c)(2)(A)” or any

action that is “filed under section 1083(c)(3) of that Act....” In this case, there is no doubt that

Libya was so designated at the time plaintiffs filed their original Complaint on April 21 2008.

Defendant Libya has argued that these provisions are inapplicable by relying on the

tortured logic that, when plaintiffs filed their Amended Complaint on March 28, they did not

“refile under this section by reason of Section 1083(c)(2)(A)” of the Act, and also did not “file[]

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under this section by reason of Section 1083(c)(3) of that Act....” Apparently, Libya is relying on

some hoped for distinction between “refiling” a claim on the one hand, and filing an amended

complaint on the other hand (in the former instance), and a similarly non-existent distinction

between commencing a new “related” action on the one hand and filing an amended complaint

on the other hand (in the latter instance). Neither of these attempts to narrow the plain language

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of the Defense Authorization Act has any merit.

By its plain terms, Section 1083(c) provides, under the heading, “APPLICATION TO

PENDING CASES,” that “The amendments made by this section shall apply to any claim arising

under Section 1605A of title 28, United States Code.” Not even Libya disputes that plaintiffs’

claims, whether they are deemed “refiled” or merely “filed” in their Amended Complaint,

nonetheless “aris[e] under Section 1605A....” Similarly, not even Libya disputes that, if plaintiffs

had filed a brand new “related” claim (instead of filing an amended Complaint in this case), then

Section 1083(c)(3), applying to “RELATED ACTIONS,” would properly trigger application of

4

Libya also appears to argue that 1083(c)(2)(A) is inapplicable to trigger Section

1605A(2)(A)(i)(II) because, although plaintiffs concedely brought their action under Section
1605(a)(7) and the “Flatow Amendment,” 28 U.S.C. § 1605 note, they either did not rely on
those provisions as creating a cause of action or they were not adversely affected on the ground
that the cited provisions did not by themselves create a federal cause of action. However, the
original Complaint clearly attempted to ground its claims in both Section 1605(a)(7) and the
“Flatow Amendment,” both of which it cited several times, Complaint at ¶¶ 17-26. Moreover,
plaintiffs plainly were adversely affected by earlier holdings of the D.C. Circuit that those
provisions did not by themselves create a federal cause of action, because, although they sought
to ground their claims on those provisions of federal law, they were unable to and were forced to
rely primarily on state substantive law. Complaint at 18-42.

In any event, even if, contrary to our argument, section 1083(c)(2)(A)(“PRIOR

ACTIONS”) were held inapplicable to trigger Section 1605A(2)(A)(i)(II) on this ground, section
1083(c)(3) (“RELATED ACTIONS”) would still be independently sufficient to support the plain
meaning and intent of Congress in enacting Section 1605A(2)(A)(i)(II) and triggering its
applicability here.

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Section 1605A(2)(A)(i)(II), providing for jurisdiction over claims where the “foreign state was

designated a state sponsor of terrorism when the original action or the related action under

Section 1605(a)(7)...was filed.....” Thus, Libya’s argument in this regard rests solely upon

attempting to create a non-existent distinction (or a distinction without a difference) between

filing a new Complaint in a new identical case (which under the Court’s rules would have been

consolidated with the older case as a “related case” anyway) or filing an amended complaint, as

plaintiffs did here. Considerations of judicial economy clearly favor reading the filing of

amended complaint in an existing case as tantamount to filing a new complaint in a related case,

and Libya has suggested no reason why such an artificial distinction should be elevated to

dispositive importance.

C.

Libya’s Argument that the Court Lacks Subject Matter Jurisdiction over
“Indirect Claims” of Family Members Is Contradicted by Over Forty Cases
Decided by this Court Awarding Damages to Such Family Members, as well
as by the Plain Language of Section 1605A.

Libya also argues that the Court lacks subject matter jurisdiction over the claims of family

members, or so-called “indirect victims of terrorism.” Memo. in Support of Motion to Dismiss at

24-28. Astonishingly, Libya does not mention or cite even one of the over forty cases decided by

this Court in the last ten years that have held to the contrary, and in fact awarded billions of

dollars in damages to such so-called “indirect victims of terrorism.” Just a few of those cases

include Flatow v. Islamic Republic of Iran, 999 F. Supp. 2d 1 (D.D.C. 1998)(over $22 million

awarded to family members of victim); Higgins v. Islamic Republic of Iran, 2000 WL 33674311

(D.D.C. 2000) (over $55 million awarded to widow of terrorist victim); Holland v. Islamic

Republic of Iran, 496 F. Supp. 2d 1 (D.D.C. 2005)(over $24 million awarded to family members

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of victim); Blais v. Islamic Republic of Iran, 459 F. Supp. 2d 40 (D.D.C. 2006) (over $24 million

total awarded to family members as well as to surviving direct victim); Surette v. Islamic

Republic of Iran, 231 F. Supp 2d 260 (D.D.C. 2002)(domestic partner of victim awarded

substantial damages).

Libya relies heavily on some oblique references in the legislative history of the 1996

FSIA amendments (now superseded by the 2008 Defense Authorization Act) but ignores the

plain language of Section 1605A, which expressly authorizes either the “claimant or the victim”

to bring such an action, and which expressly also authorizes damages to be paid for “solatium,”5

which is compensation that is available only to a close family member or survivor of a victim of

terrorism–that is, to a so called “indirect victim.” Libya’s failure to mention the scores of cases

to the contrary, and its failure to address the plain language of the Act in promoting its argument

on this point, should be noted by the Court.

II.

THIS COURT HAS PERSONAL JURISDICTION OVER LIBYA.

Libya argues that the Court has no personal jurisdiction over Libya because Libya lacks

the “minimum contacts” required by the Fifth Amendment. Although plaintiffs dispute that

Libya lacks the requisite minimum contacts, this is an argument we need not engage. That is

because, as Libya concedes, the D.C. Circuit has held, in another case in which Libya was a

defendant and made the same argument, that “foreign states are not ‘persons’ protected by the

Fifth Amendment.” Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F. 3d 82, 90 (D.C.

Cir. 2002). “Thus, § 1605 (a)(7) ... allows personal jurisdiction to be maintained over defendants

5

Section 1605A(c)(4) provides as follows: “In any such action, damages may include

economic damages, solatium, pain and suffering, and punitive damages.”

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in circumstances that do not appear to satisfy the ‘minimum contacts’ requirement of the Due

Process Clause.” Id. Citations omitted. Accord, TMR Energy Ltd. v. State Property Fund of

Ukraine, 411 F. 3d 296, 300 (D.C. Cir. 2005). As Libya concedes, Price and TMR Energy are

controlling authority here.

III.

PLAINTIFFS’ CLAIMS ARE NOT TIME-BARRED.

Plaintiffs claims were not time barred when they were brought within the 10-year window

provided by enactment of the Foreign Sovereign Immunities Act Amendments on April 24, 1996.

See Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, § 221 (a), 100 Stat.

1214 (April 24, 1996) previously codified at 28 U.S.C. § 1605(a)(7). On that date, for the first

time, the FSIA was amended to lift the sovereign immunity of foreign states which sponsored

terrorism. Those amendments provided for a ten-year limitation period and expressly provided

for application of the principle of equitable tolling during the period when the foreign sovereign

was immune from suit:

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). The plain language of the statute expressly instructs application of

equitable tolling “including the period during which the foreign state was immune from suit....”

Until enactment of those provisions, plaintiffs could not bring any action against Libya

because, even though it had been on the terrorism list since 1979, it was immune from suit.

Accordingly, the ten-year limitations period for plaintiffs was tolled, and did not begin to run,

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until April 24, 1996, the date Libya’s immunity was first lifted. Plaintiffs complied with the ten-

6

year limitations period by filing their Complaint on April 21, 2006. This interpretation of

Section 1605(f) was expressly re-affirmed in the recent Defense Authorization Act.

However, even if–contrary to our arguments–plaintiffs’ claims were time barred under

former Section 1605(a)(7), they are manifestly not time-barred under new Section 1605A as

enacted in the recent Defense Authorization Act.

A.

Plaintiffs’ Original Complaint Was Filed Within the Ten-Year Limitations
Period, and Was Not Time Barred.

This Court has repeatedly held that, under the 1996 FSIA provisions recited above,

plaintiffs have ten years from the date the foreign state’s immunity was first lifted on April 24,

1996, to bring their claims. E.g., Collett v. Socialist People’s Libyan Arab Jamahiriya, 362 F.

Supp. 2d 230, 242 (.D.D.C. 2005)(Uribina, J.)(denying Libya’s motion to dismiss on limitations

grounds, inter alia, and holding that “the statute of limitations for the plaintiffs claims must be

tolled to begin when the defendants were stripped of their immunity with the 1996 enactment of

28 U.S.C. § 1605(a)(7)....”); Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 23 (D.D.C.

1998)(Lamberth, J.)(“as a matter of law, ... the earliest date for the statute of limitations to expire

for any action brought pursuant to 28 U.S.C. 1605(a)(7) and 28 U.S.C. 1605 note will be April

24, 2006); Ciccippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62, 69 (D.D.C. 1998)(Jackson,

J.)([T]he ten year statute of limitations ... does not bar the claims in this case because, once again,

6

Libya’s suggestion that plaintiffs could have sued it after 1972 but prior to enactment of
the FSIA in 1976 (Memo. in Support at 23) is disingenuous at best. Libya’s counsel well knows
that the FSIA, when first enacted, essentially codified existing law protecting sovereigns from
suit in all but the most limited circumstances, and that no sovereign state could ever be sued for
sponsorship of terrorism until passage of the FSIA amendments in 1996.

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Congress has provided that victims of terrorism be given the benefit of “all principles of

equitable tolling, including the period during which the foreign state was immune from suit...”

Iran was immune from suit...until the enactment of § 1605(a)(7) in 1996.”); Wyatt v. Syrian Arab

Republic, 298 F. Supp. 131, 145 (D.D.C. 2005)(“claims brought under § 1605(a)(7) are tolled up

to April 24, 1996, the date of passage of § 1605(a)(7) and the first date that any foreign state’s

immunity was waived.”). These cases properly interpreted the plain language of Section 1605(f),

expressing the will of Congress to apply a ten year limitations period and to apply equitable

tolling principles during the period before April 1996 when plaintiffs could not have brought

suit.

Libya largely ignores these cases, even though it was a party to one of them, and instead

places all its emphasis on two decisions by Judges Kennedy and Kessler. Vine v. Republic of

Iraq, 459 F. Supp. 2d 10 (D.D.C. 2006)(Kennedy, J.); Estate of Buonocore v. Great Socialist

Arab Jamahiriya, 2007 WL 2007509 (D.D.C. 2007)(Kessler, J.). The Vine case involved

plaintiffs who were held as hostages in Iraq in 1990-91. Judge Kennedy held that they should

have brought their claims by 2001. He drew a distinction between when a claim “arises” and

when it “accrues.” He refused to apply the equitable tolling prescribed by Congress in the way all

the other judges of this Court had done so previously. Judge Kessler reached the same

conclusion in Buonocore, essentially adopting and following Judge Kennedy’s reasoning to bar

claims stemming from a 1985 bombing that were filed on April 21, 2006.

Plaintiffs submit that Vine and Buonocore were incorrectly decided because they ignored

the Congressional intent found in the plain language of former Section 1605(f). Both cases rely

almost exclusively on one D.C. Circuit decision, Phillips v. Heine, 984 F.2d 489 (D.C. Cir.

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1993). However, that case is distinguishable on a number of grounds. Philips involved the

statute of limitations of the Death on the High Seas Act, which, unlike the FSIA, did not

expressly codify equitable tolling into the statute as a congressional mandate. Moreover, the

Philips court relied heavily on the unique legislative history of that statute. The Philips court

reasoned that, when Congress amended the statute and deleted any reference to tolling, it could

not have intended to grant plaintiffs more than 90 days from the end of the tolling event. Thus

the Philips court concluded, in light of that history, that plaintiffs were entitled to only 90 days

after the tolling period ended instead of the full limitations period after the tolling period ended.

The FSIA, by contrast, had no such legislative history, and, unlike the Death on the High Seas

Act, did have express language instructing the courts to apply principles of equitable tolling

during the period when foreign states were immune from suit.

Moreover, there is strong doubt whether even the D.C. Circuit would follow the Philips

precedent today, in light of its more recent decision in United States v. Saro, 252 F.3d 449, 453-

55 (D.C. Cir. 2001). In that case, the court did not apply the Philips “reasonable period after

tolling period ends” analysis, but instead held that equitable tolling, as a matter of law,

completely suspends the statute of limitations during the full tolling period. Id. at 454 and 454,

n.6.

Saro is much more in line with Supreme Court precedent and most interpretations of

federal common law than Philips. In Burnett v. New York Cent. R.R. Co., 380 U.S. 424, 434-35

(1965), the Supreme Court expressly rejected the “reasonable time” approach proposed by Libya

and applied by the Vine and Buonocore courts. The Supreme Court held that the “reasonable

time” approach “would create uncertainty as to exactly when the limitation period begins to run.”

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Id. at 435. The Court explained that “a uniform rule tolling the federal statute for the period of

the pendency of the state court action and until the state court dismissal order becomes final is

fair to both plaintiff and defendant...and best serves the policies of uniformity and certainty....”

Id. at 435-36.

Accordingly, the great weight of authority sides with the numerous applicable precedents

of this Court that have held that plaintiffs in terrorism cases have ten years from the date of

enactment of the FSIA amendments on April 24, 1996, to bring claims against state sponsors of

terrorism.

In the section below plaintiffs show that, under the recently enacted Defense

Authorization Act, there is no question that Libya’s limitations defense is without merit, because

it is expressly addressed by the terms of the Act. However, that Act also provides a strong

indication of Congressional intent with respect to how the 1996 limitations provisions should be

read. When Congress enacted the recent Defense Authorization Act, it essentially re-affirmed its

prior intention to provide a 10-year window from April 24, 1996 to April 24, 2006, to bring such

claims even under former Section 1605(a)(7) and Section 1605(f). The Act provides, under

“TIME LIMITATIONS”--

A motion may be made or an action may be refiled under subparagraph (A) only--

(i) if the original action was commenced not later that the latter of--
(I) 10 years after April 24, 1996; or
(II) 10 years after the cause of action arose; and
(ii) within the 60-day period beginning on the date of the enactment of this Act.

Section 1083 (c)(2)(C) of the Defense Authorization Act. Clearly, Congress considered any prior

action that had been filed within “10 years after April 24, 1996" to have been timely filed. Even

aside from the direct applicability of the language cited to this case, it is a powerful expression of

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Congressional understanding of the operation of former Section 1605(a)(7) and former Section

1605(f).

B.

New Section 1605A Expressly Provides that Plaintiffs Had Ten Years from
April 24, 1996 to Bring This Action.

In January of this year, Congress expressly legislated that, notwithstanding any confusion

caused by the Vine and Buonocore cases, plaintiffs who bring Section 1605A actions, as did

plaintiffs here in their Amended Complaint, are within the statute of limitations so long as their

claims were originally brought within ten years after April 24, 2005. Section 1605A(b) expressly

provides as follows:

LIMITATIONS.–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 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.

This plain language governs the facts here. Plaintiffs’ amended complaint states claims

under Section 1605A. Their original Complaint in this action was filed within “10 years after

April 24, 1996.” Thus their action was both “brought” and “maintained” within the requisite ten

years from that date. Even if their original Complaint is deemed a “related action commenced

under section 1605(a)(7),” it still meets the time limit.

Indeed, Congress’ intent in affirming the rights of plaintiffs against state sponsors of

terrorism was so strong, that it repeated its instruction about the statute of limitations in another

part of the legislation, codified at Section 1605A Note (c)(2), labeled “PRIOR ACTIONS.–“

(B) DEFENSES WAIVED.– The defenses of res judicata, collateral estoppel, and
limitation period are waived--
(i)...

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(ii) in any action that was originally brought, before the date of enactment of this Act,
under section 1605(a)(7) of title 28, United States Code..., and is refiled under Section
1605A(c) of title 28, United States Code, to the extent such defenses are based on the
claim in the action.

Once again, only by arguing that filing an amended complaint under Section 1605A(c), as

plaintiffs did here, is not the same as “refil[ing]” a complaint originally brought under Section

1605(a)(7), can Libya hope to escape the plain meaning of this provision. Libya has made no

serious argument distinguishing between filing an amended complaint and “refiling” the same

action in a new complaint, and cannot hope to do so. To the extent Libya rests any future

argument on this meaningless distinction, it must try to explain what possible purpose would be

served by requiring plaintiffs to file a new identical case rather than merely an amended

complaint in order to avail themselves of this provision. The short answer is that no purpose

would be served by reading the statute in that way.

Accordingly, even if there was any reasonable basis for confusion about whether the

statute of limitations properly extended for 10 years after April 24, 1996, prior to enactment of

the Defense Authorization Act of 2008 (and the vast majority of judges in this Court have held

that it did), that confusion was swept away by not one but three express statutory references in

the newly enacted National Defense Authorization Act.

CONCLUSION

For all the reasons set out above, it is clear that this Court has subject matter jurisdiction

over this action and personal jurisdiction of Libya, and that this action is not time-barred.

Accordingly, the Court should deny Libya’s Motion To Dismiss.

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Case 1:06-cv-00734-RBW Document 44 Filed 06/26/2008 Page 20 of 20

Respectfully submitted,

/s/_______________________
Paul G. Gaston
DC Bar # 290833
LAW OFFICES OF PAUL G. GASTON
1120 19 Street, NW
th
Suite 750
Washington, DC 20036
202-296-5856

_________________________
Joshua M. Ambush (Bar # MD 27025)
Law Offices of Joshua M. Ambush, LLC
1726 Reistertown Road
Suite 206
Baltimore, MD 21208
410-484-2070

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