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Case 1:06-cv-00734-RBW Document 45 Filed 07/17/2008 Page 1 of 26



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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DEFENDANT LIBYA’S REPLY TO PLAINTIFFS’ OPPOSITION TO

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 45 Filed 07/17/2008 Page 2 of 26







TABLE OF CONTENTS























Page




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

II. ARGUMENT……......………………………………………………………………………...1

A. This Court Lacks Subject Matter Jurisdiction…………………………………………………2

B. Plaintiffs’ Amended Complaint Does Not Meet The Requirements of 28 U.S.C.
§1605A………………………………………………………….……………………………10

C. Plaintiffs’ Claims Are Time Barred…………………………………………….…………....14

D. The FSIA Does Not Provide Subject Matter Jurisdiction Over Claims Brought By
Indirect Victims of Terrorism……………….………………………………………………18

III. CONCLUSION..…………………….………………………………………………………19

CERTIFICATE OF SERVICE…………………………………………………………….…….21




TABLE OF AUTHORITIES


FEDERAL CASES

Ali v. Fed. Bureau of Prisons,
2008 U.S. LEXIS 1212 (U.S. Jan. 22, 2008)……………………………………………………...4

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

Baker v. Carr,
369 U.S. 186 (1962)……………………………………………………………………………….9

Blais v. Islamic Republic of Iran,
459 F. Supp. 2d 40 (D.D.C. 2006)……………………………………………………………….18

Chung v. Dep’t of Justice,
333 F.3d 273 (D.C. Cir. 2003)……………………………………………………………...........16

Communications Vending Corp. of Ariz. v. F.C.C.,
365 F.3d 1064 (D.C. Cir. 2004)………………………………………………………………….16


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Daubert v. Merrill Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993)………………………………………………………………………….6, 7, 8

Dole Food Co. v. Patrickson,
538 U.S. 468 (2003)…………………………………………………………………………….4, 5

*Estate of Buonocore v. Great Socialist People’s Libyan Arab Jamahiriya,
2007 WL 2007509 (D.D.C. July 9, 2007)………………………………….…………….15, 16, 18

Flatow v. Islamic Republic of Iran,
999 F. Supp. 2d 1 (D.D.C. 1998)………………………………………………………………...18

Galvin v. Eli Lilly & Co.,
488 F.3d 1026 (D.C. Cir. 2007)…………………………………………………………………...6

*General Electric Co. v. Joiner,
522 U.S. 136 (1997)……………………………………………………………………………….7

Higgins v. Islamic Republic of Iran,
2000 WL 33674311 (D.D.C. 2000)……………………………………………………………...18

Holland v. Islamic Republic of Iran,
496 F. Supp. 2d 1 (D.D.C. 2005)………………………………………………………………...18

Japan Whaling Assn’ v. American Catacean Soc’y,
478 U.S. 221 (1986)……………………………………………………………………………...10

Kumho Tire Co., Ltd. v. Carmichael Etc.,
526 U.S. 137 (1999)………………………………………………………………………….....6, 7

Landgraf v. USI Film Prods.,
511 U.S. 244 (1994)………………………………………………………………..………….4, 10

Levin v. Islamic Republic of Iran,
529 F. Supp. 2d 1 (D.D.C. 2007)………………………………………………………………...19

*Phillips v. Heine,
984 F.2d 489 (D.C. Cir. 1993)…………………………………………………………….…15, 16

Proctor v. State Farm Mut. Auto. Ins. Co.,
675 F.2d 308 (D.C. Cir. 1982)…………………………………………………………………….6

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



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Schumann v. C.I.R.,
857 F.2d 808 (D.C. Cir. 1988)……………………………………...……………………………..4

Simon v. Republic of Iraq,
2008 WL 2497417 (D.C. Cir. June 24, 2008)……………………………….…………...10, 16, 17

Surette v. Islamic Republic of Iran,
231 F. Supp. 2d 260 (D.D.C. 2002)……………………………………….……………………..18

United States Catholic Conference v. Abortion Rights Mobilization, Inc.,
487 U.S. 72 (1988)……………………………………………………………………………….12

*Vine v. Republic of Iraq,
549 F. Supp. 2d 10 (D.D.C. 2006)…………………………………………………………...15, 18

Whitman v. American Trucking Assns.,
531 U.S. 457 (2000)……………………………………………………………………………...12

Williams v. Taylor,
529 U.S. 420 (2000)……………………………………………………………………………….4


FEDERAL RULES, STATUTES, AND REGULATIONS

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

28 U.S.C. § 1605(f)………………………………………………………………………..…16, 17

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

28 U.S.C. § 1605A(a)(1)…………………………………………………………………………19

28 U.S.C. § 1605A(b)……………………………………………………………………..…16, 17

28 U.S.C. § 1605A(c)……………………………………………………………………………19

28 U.S.C. § 1605A(2)……………………………………………………………………………11

28 U.S.C. § 1605A(a)(2)(A)(i)(I)………………………………………………………..2, 3, 8, 11

28 U.S.C. § 1605A(a)(2)(A)(i)(II)……………………………………………………………….11

“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


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The Foreign Operations, Export Financing, and
Related Programs Appropriations Act of 1997 §589………………………………………...11, 13


LEGISLATIVE MATERIALS

H.R. 934 H. Rep. 103-172, 103rd Congress, August 16, 1994…………………………………...19

Comprehensive Antiterrorism Act of 1995: Report of the Comm. on the Judiciary, H.R. Rep.
No. 104-383 (1995)………………………………………………………………………..……..19


OTHER AUTHORITIES

Dick K. Nanto, Congressional Research Service, North Korea: Chronology of Provocations…..5


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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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DEFENDANT LIBYA’S REPLY TO PLAINTIFFS’ OPPOSITION TO

MOTION TO DISMISS THE AMENDED COMPLAINT

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

undersigned counsel, respectfully submits the following Reply to Plaintiffs’ Opposition to

Defendants’ Motion to Dismiss the Amended Complaint and states as follows:

I.



INTRODUCTION

Libya’s Motion to Dismiss the Amended Complaint demonstrates that no exception to

sovereign immunity applies to plaintiffs’ claims, and therefore, Libya is immune from suit. In

their Opposition to Libya’s Motion to Dismiss the Amended Complaint, plaintiffs fail to

establish that this Court has jurisdiction over their claims. Therefore, the Amended Complaint

must be dismissed in its entirety.

II.

ARGUMENT

In their Opposition, plaintiffs provide no legal authority which supports their construction

of the state sponsor of terrorism exception to foreign sovereign immunity. Instead, plaintiffs rely

upon the Declaration of a self-proclaimed expert, Dr. Bruce Tefft, to establish that Libya was

Case 1:06-cv-00734-RBW Document 45 Filed 07/17/2008 Page 7 of 26






placed on the list of state sponsors of terrorism as a result of the May 30, 1972 Lod Airport

attack. However, as shown by his Declaration, Dr. Tefft has no personal knowledge regarding

the specific reasons for which Libya was placed on the list of state sponsors of terrorism in 1979.

Moreover, the reasons for Libya’s inclusion on the list cannot be established by expert opinion

testimony—congressional or executive intent alone is controlling. The litany of quotes in Dr.

Tefft’s Declaration regarding the tracking of terrorist activity does not establish that the state

sponsor of terrorism exception, or any other exception, to sovereign immunity applies to the

claims against Libya in this case. This Court simply does not have jurisdiction.

A.

This Court Lacks Subject Matter Jurisdiction.











Only one issue related to Libya’s sovereign immunity needs to be decided by this Court:

whether the allegations of Libya’s later designation in 1979 as a state sponsor of terrorism for

alleged general support of terrorism satisfies the requirements of § 1605A. Because such a

conclusion would conflict with the plain language of the statute, plaintiffs’ Amended Complaint

should be dismissed.

For this Court to exercise jurisdiction pursuant to § 1605A, the statute expressly requires

that the plaintiffs demonstrate that Libya was designated as a the state sponsor of terrorism “as a

result of such act” for which the plaintiffs seek recovery. 28 U.S.C. § 1605A(a)(2)(A)(i)(I).

Plaintiffs ignore the plain language of the statute and argue that Libya’s 1979 designation as a

state sponsor of terrorism for its alleged general support of terrorism is sufficient for the

exception to apply to their claims, which arose in 1972. Plaintiffs’ arguments are wholly without

merit.

In their Opposition, plaintiffs cannot identify a single legislative source that states that

Libya was added to the state sponsor of terrorism list as a result of the attack at Lod Airport.

Faced with this reality, the plaintiffs argue that Libya’s alleged general support of terrorism

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satisfies § 1605A. However, the express language of the statute does not permit broad

application to provide jurisdiction for acts of terrorism that occurred during time periods when

Libya was not designated as a state sponsor of terrorism.

Section 1605A expressly states in relevant part:

(2)

CLAIM HEARD.–The court shall hear a claim under this
section if–


(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 . . .

28 U.S.C. § 1605A(a)(2)(A)(i)(I) (emphasis added). Thus, the language of § 1605A is clear and

limits jurisdiction to claims for acts of terrorism that occurred when the foreign sovereign was on

the state sponsor of terrorism list or if the sovereign was later so designated as a result of the act

of terrorism that is the subject of the plaintiffs’ claims. Plaintiffs argue that this Court should

ignore the plain language of the statute and determine that Libya is subject to this Court’s

jurisdiction because of Libya’s alleged “pattern of supporting terrorism” from 1968 through its

removal from the state sponsor of terrorism list in 2006. (See generally, plaintiffs’ Opposition).

Specifically, plaintiffs misconstrue the requirements of § 1605A(a)(2)(A)(i)(I) by arguing that

they have properly alleged that “Defendants have been designated foreign state sponsors of

terrorism . . .” Opp. Mem. at 5 (citing Am. Comp. at 5, n. 2). The plaintiffs’ interpretation of the

statute ignores its plain language as well as case law applying former § 1605(a)(7). Plaintiffs do

not argue that the statute is ambiguous. Indeed, they cannot. Yet, the plaintiffs request that this

Court rewrite the statute or ignore certain terms contained in the statute. Plaintiffs ask this Court

to construe § 1605A(a)(2)(A)(i)(I) to mean that the clause “as a result of such act” should be

removed or ignored and the statute should be construed to mean that “if the foreign state was not

designated as a state sponsor of terrorism . . . at the time the act occurred unless later so

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designated.” This, however, is not what Congress wrote and is not a reasonable interpretation of

the statute as written. Such construction should be rejected by this Court. See Dole Food Co. v.

Patrickson, 538 U.S. 468, 476-77 (2003).

Plaintiffs concede that Libya was not on the list of state sponsors of terrorism at the time

of the 1972 attack because Congress did not create the list until 1979, 7 years later. Opp. Mem.

at 2.

Moreover, plaintiffs assert without any support that “[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 the list existed.” Opp. Mem. at 6. Plaintiffs’ far reaching view of the retroactive

application of the 1996 Amendments of the FSIA to pre-1979 claims is wholly without merit and

contrary to the express provisions of both former § 1605(a)(7) and § 1605A. See Motion to

Dismiss at 11 (citing Landgraf v. USI Film Prods., 511 U.S. 244, 260 (1994). If Congress

intended to allow claims from acts prior to 1979, it could have easily specified those acts in

either the 1996 Amendment to the FSIA or the National Defense Authorization Act of 2008.

Congress did not do so, and consequently, this Court does not have jurisdiction over Libya for

the plaintiffs’ claims. See Schumann v. C.I.R., 857 F.2d 808, 811 (D.C. Cir. 1988) (stating that

“under the maxim expressio unius exclusio alterius, Congress’ specific enumeration of certain

exceptions indicates that no other exceptions were intended.”)); Williams v. Taylor, 529 U.S.

420, 431 (2000) (Words in a statute should have their “ordinary, contemporary, common

meaning, absent an indication Congress intended them to bear some different import.”) (internal

quotation and citation omitted)). If Congress had intended the result sought by the plaintiffs,

Congress could have easily written the statute to say so, a principle consistently invoked over the

years by the U.S. Supreme Court. Ali v. Fed. Bureau of Prisons, 2008 U.S. LEXIS 1212, * 25

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(U.S. Jan. 22, 2008). Congress did not do so, and consequently, this Court does not have

jurisdiction over Libya for plaintiffs’ claims.

When evaluating the FSIA, normal rules of statutory construction apply. “Absent a

statutory text or structure that requires us to depart from normal rules of construction, we should

not construe the statute in a manner that is strained and, at the same time, would render a

statutory term superfluous.” Dole Food, 538 U.S. at 476-77. This is especially important when

the issue is jurisdiction. It is settled “that the subject matter jurisdiction of the lower federal

courts is determined by Congress in the exact degrees and character which to Congress may

seem proper for the public good.” Argentine Republic v. Amerada Hess Shipping Corp., 488

U.S. 428, 433 (1989) (internal quotations and citations omitted). Thus, the FSIA only has the

jurisdictional reach provided by Congress. Congress specifically limited subject matter

jurisdiction to claims which arose when the foreign defendant was on the list of state sponsors of

terrorism (e.g., in 1979 or later), and to when a specific act places a new country on the list, such

as when North Korea was placed on the list in response to the bombing of Korean Air Flight 858.

See Dick K. Nanto, Congressional Research Service, North Korea: Chronology of Provocations.

In any event, nothing in the legislative history of the 1979 Act placing Libya on the list of state

sponsors of terrorism indicates that the 1972 Lod Airport attack was the reason Libya was placed

on the list.

Plaintiffs rely primarily upon the Declaration of Dr. Bruce D. Tefft, a purported expert in

the field of terrorism, to establish that Libya was placed on the list of state sponsors of terrorism

as a result of the 1972 Lod Airport attacks. However, this Court should not consider Dr. Tefft’s

Declaration or the opinions contained therein. First, it is apparent on the face of Dr. Tefft’s

Declaration that he has no personal knowledge concerning the reasons why Libya was added to

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the list of state sponsors of terrorism. Dr. Tefft’s conclusions are merely based upon a “general

knowledge of terrorist operations” and “recently reviewed material” from secondary sources.

Tefft Decl., ¶¶ 5, 19. Dr. Tefft’s Declaration fails to establish that he has personal knowledge of

any “facts” contained in his Declaration. Therefore, this Court should not consider Dr. Tefft’s

Declaration in deciding defendant’s Motion to Dismiss. See Galvin v. Eli Lilly & Co., 488 F.3d

1026, 1033 (D.C. Cir. 2007) (affidavits shall be made on personal knowledge, shall set forth such

facts as would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein); see also Proctor v. State Farm Mut. Auto. Ins.

Co., 675 F.2d 308, 333-34 (D.C. Cir. 1982) (affidavits which merely repeat in conclusory

fashion a plaintiff's basic claim are insufficient).

In addition, Dr. Tefft does not qualify as an expert on the issue of the basis for Libya’s

inclusion on the list of state sponsors of terrorism. In Daubert v. Merrill Dow Pharmaceuticals,

Inc., the Supreme Court noted the importance of ensuring the reliability of expert testimony

given the weight it holds in front of a jury. 509 U.S. 579, 593 (1993). In overturning the

exclusion of a scientific expert, the Daubert Court set forth various factors that a Court should

consider in determining whether the testimony is reliable. These factors include: whether a

theory or technique can be (and has been) tested; whether it has been subjected to peer review

and publication; whether, in respect to a particular technique, there is a high known or potential

rate of error and whether there are standards controlling the technique's operation; and whether

the theory or technique enjoys general acceptance within a relevant scientific community.

Kumho Tire Co., Ltd. v. Carmichael Etc., 526 U.S. 137, 149 (1999) (citing Daubert, 509 U.S. at

592-594).

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The Daubert Rule, as it has become known, focuses solely on the expert’s technique and

methodology, and not on the conclusions that he or she generates. Daubert at 593; General

Electric Co. v. Joiner, 522 U.S. 136, 146 (1997) (citations omitted). Further, “Daubert’s general

holding-setting forth the trial judge’s general ‘gate keeping’ obligation- applies not only to

testimony based on ‘scientific knowledge’, but also to testimony based on ‘technical’ and

otherwise ‘specialized’ knowledge.” Kumho Tire Co., 526 U.S. at 141-142. Thus, it applies to

the instant case.

In General Electric Co. v. Joiner, the Court heard argument on whether the opinions of a

scientific expert included in a Declaration attached to Plaintiff’s Opposition to Defendant’s

Motion for Summary Judgment was proper expert testimony or “mere subjective belief and or

unsupported speculation” and thus inadmissible. 522 U.S. 136, 140 (1997). In affirming the trial

court’s determination, the Court held that an expert who based his opinions on studies which

were not sufficient, whether individually or in combination, to support their conclusions was

inherently unreliable and thus not proper expert testimony. The Court held that “nothing in

either Daubert or the Federal Rules of Evidence requires a district court to admit opinion

evidence which is connected to existing data only by the ipse dixit of the expert. A court may

conclude that there is simply too great an analytical gap between the data and the opinion

proffered.” Id. at 146-147.

In the present case, Dr. Tefft lists numerous sources for his opinion that “Libya was

placed on the list of state sponsors of terrorism by the U.S. government in 1979, in large

measure as a direct result of its actions in sponsoring and supporting the PLO and its sub-group

the PFLP and JRA in the Lod Airport attacks as well as in numerous other acts of terrorism.”

Tefft Decl. at ¶ 6. Yet, as was the case with the expert in Joiner, the sum of Dr. Tefft’s opinions

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do not equal its parts. Dr. Tefft’s Declaration fails to establish any degree of specialized

knowledge concerning the decision by Congress to include Libya on the list of state sponsors of

terrorism. This Court should not consider Dr. Tefft’s opinions, as his proffered testimony clearly

does not meet the high standards set by the Daubert Rule as the proffered Declaration does not

even suggest a methodology for this Court to analyze. Further, any analysis or expertise he

brings to the Court on the issue of Libya’s inclusion on the list of state sponsors of terrorism is

dubious as his proffered testimony is merely a recitation of secondary sources followed by a one

paragraph repetition of the plaintiffs’ basic claim. The Court should not consider the Declaration

of Dr. Tefft.

Even if the Court considered Dr. Tefft’s Declaration, plaintiffs’ argument fails as Dr.

Tefft’s Declaration does not definitively state that Libya was placed on the list of state sponsors

of terrorism as result of the 1972 Lod Airport attack as required by § 1605A(a)(2)(A)(i)(I). Dr.

Tefft's conclusion is that “Libya was placed on the list of state sponsors of terrorism by the U.S.

government in 1979, in large measure as a direct result of its actions in sponsoring and

supporting the PLO and its sub-group the PFLP and JRA in the Lod Airport attacks as well as in

numerous other acts of terrorism.” Tefft Decl. at ¶ 6 (emphasis added). The qualification

makes Dr. Tefft’s “opinion” inconclusive, at best, as to the issue of whether this specific incident

is the basis for Libya's inclusion on the list of state sponsors of terror.

Moreover, the general allegations that Libya was a state sponsor of terror contained in Dr.

Tefft’s Declaration are insufficient to establish a waiver of immunity pursuant to case law. As

shown in Libya’s Motion to Dismiss, the D.C. Circuit held in Roeder v. Islamic Rep. of Iran that

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. 195 F. Supp. 2d 140,

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161 (D.D.C. 2002). Plaintiffs tellingly do not address the Roeder decision in their Opposition.

This is because the analysis in Roeder regarding the effect of the language of § 1605(a)(7) is

directly applicable to plaintiffs’ § 1605A claims here and should be followed by this Court.

District courts do not have jurisdiction over claims brought pursuant to § 1605A if the defendant

was not designated as a state sponsor of terrorism at the time of the act giving rise to the claims

or was later so designated as a result of the act giving rise to the claims. General allegations of a

sovereign’s support for terrorism do not establish an exception to immunity.

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. Plaintiffs allege simply that Libya was designated as a state of sponsor terrorism

because Libya provided “material support and resources to international terrorist organizations.”

(Am. Complaint, ¶ 17). The Court should deny plaintiff’s request for leave to amend their

claims yet again, as there is no evidence that Libya was placed on the list state of sponsors of

terrorism as a result of the Lod Airport attack. Therefore, plaintiffs have failed to establish that

this Court has subject matter jurisdiction over their § 1605A claims.



Furthermore, in the absence of any explicit explanation by Congress as to why Libya was

placed on the list of state sponsor of terrorism, the political question doctrine prevents the Court

from evaluating Dr. Tefft’s theoretical argument as to why Congress might have placed Libya on

the state sponsor of terrorism list. Nowhere does Dr. Tefft provide evidence of Congress’s

intent. Instead, his brief analysis focuses on general allegations of Libya’s wrongdoing.

This generalized speculation into the policy determinations of Congress violates the well-

established political question doctrine. The Supreme Court in Baker v. Carr, 369 U.S. 186, 217

(1962), identified six characteristics of political question cases. These include (1) a textually

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demonstrable constitutional commitment of the issue to a coordinate political department; (2) a

lack of judicially discoverable and manageable standards for resolving it; (3) the impossibility of

deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (4)

the impossibility of a court's undertaking independent resolution without expressing lack of the

respect due coordinate branches of government; (5) an unusual need for unquestioning adherence

to a political decision already made; or (6) the potentiality of embarrassment from multifarious

pronouncements by various departments on one question. All six of these factors would be

implicated by a court announcing, without limiting itself to the typical tools of statutory

interpretation, as to why Congress might, or should have placed Libya on the state sponsor of

terrorism list in 1979. See Japan Whaling Assn’ v. American Catacean Soc’y, 478 U.S. 221, 230

(1986) (“The political question doctrine excludes from judicial review those controversies which

revolve around policy choices and value determinations constitutionally committed for resolution

to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill

suited to make such decisions, as ‘courts are fundamentally underequipped to formulate national

policies or develop standards for matters not legal in nature.’”) (citation omitted).

B.

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

§ 1605A.





















Plaintiffs attempt to invoke 28 U.S.C. § 1605A as a basis for subject matter jurisdiction.

However, the D.C. Circuit’s recent decision in Simon v. Republic of Iraq, No. 06-7175, 2008 WL

2497417 (D.C. Cir. June 24, 2008), makes clear that the 2008 Amendments to the FSIA “appl[y]

to a pending case only if the Congress clearly so provides.” Id. at *3 (citing Landgraf v. USI

Film Prods., 511 U.S. 244, 280 (1994), for the proposition that “a statute that retroactively alters

the consequences of primary conduct . . . is presumptively non-retroactive”). As the court in

Simon stated, “[p]laintiffs with ‘pending cases’ may invoke new § 1605A in certain

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circumstances” as described in Section 1083(c)(2). Id. at *5; see also id. at *4. However, such

circumstances do not exist in this case.



First, plaintiffs misconstrue the provisions of § 1605A(a)(2)(A)(i)(II). Plaintiffs argue

that the requirement that a foreign sovereign be on the list of state sponsors of terrorism at the

time of the act pursuant to § 1605A(a)(2)(A)(i)(I) is superseded by § 1605A(a)(2)(A)(i)(II) in

refiled actions pursuant to § 1083(c). Plaintiffs’ interpretation of the statute is simply wrong.

Section 1605A(2) states in relevant part:

(2) Claim heard—The court shall hear a claim under this section if

(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 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

(II) 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) 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(2) (emphasis added). Subclause II does not eliminate the requirement that the

need for the foreign state to be designated as a state sponsor of terrorism, or designated as a

result of such act, at the time of the incident. Rather, Subclause II merely states that, in the

limited circumstances where a case is either refiled or subsequently filed as a related action, the

foreign state need not remain on the list at the time the subsequent claim is filed, or be so

designated within the 6-month period before the filing of such a claim. Under Subclause II,

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plaintiffs must still satisfy the criteria set forth in § 1605(a)(7), which includes the same

requirements as Subclause I. By its plain language, Subclause II only applies to cases “refiled

under this section by reasons of section[s] 1083(c)(2)(A) [or] 1083(c)(3)” where the initial action

was brought “under section 1605(a)(7).”

Section 1083(c)(2), requires that a plaintiff relied upon and was “adversely affected” by

the lack of a cause of action in 1605(a)(7) and the Flatow Amendment, and thus applies only to

cases where subject matter jurisdiction was proper under § 1605(a)(7). Otherwise, the existence

or lack thereof of a cause of action would be immaterial. Likewise, § 1083(c)(3) also requires a

valid action under § 1605(a)(7), as the original act must have “been timely commenced under [§

1605(a)(7)].” If the original action was outside the scope of the FSIA because it did not comply

with § 1605(a)(7)’s requirements that the act in question occur while the foreign state was

designated a state sponsor of terrorism, then the original action is a nullity. Cf. United States

Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988) (“It follows

that if a district court does not have subject matter jurisdiction over the underlying action, and

the process was not issued in aid of determining that jurisdiction, then the process is void.”)

(referring to subpoenas).



Thus, subclause II requires that the original action under § 1605(a)(7) have valid subject

matter jurisdiction. Moreover, nothing in the statute’s text or the legislative history indicates that

the 2008 Amendments to the FSIA were intended to expand subject matter jurisdiction or take

the unprecedented step of subjecting foreign states to liability for acts other than those performed

during or immediately preceding their existence on the state sponsor of terrorism list. See

Whitman v. American Trucking Assns., 531 U.S. 457, 468 (2000) (stating that Congress “does

not . . . hide elephants in mouseholes”) (citation omitted).

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Regardless, plaintiffs fail to show that they meet the specific criteria of § 1083(c)(2)(A)




of the “prior actions” provision. Contrary to plaintiffs’ arguments, plaintiffs’ original Complaint

did not rely upon either 28 U.S.C. § 1605(a)(7) or section 589 of the Foreign Operations, Export

Financing, and Related Programs Appropriations Act, 1997 (the “Flatow Amendment”) as

creating a cause of action against Libya, as required by § 1083(c)(2)(A)(ii). Specifically,

plaintiffs’ contention that the original Complaint “attempted to ground its claims” in §

1605(a)(7) and the Flatow Amendment is disingenuous, at best. Paragraphs 17 thru 26 of the

original Complaint merely assert jurisdictional allegations, not substantive causes of action. It is

undisputed that plaintiffs’ original Complaint asserts no substantive causes of action against

Libya under either § 1605(a)(7) or the Flatow Amendment. Therefore, plaintiffs’ original

Complaint does not meet the requisite criteria set forth in § 1083(c)(2)(A)(ii) and does not

qualify as a “prior action” as defined by § 1083(c).



Because plaintiffs did not rely upon 28 U.S.C. § 1605(a)(7) or the Flatow Amendment as

creating a cause of action, their Complaint was not adversely impacted on the grounds that 28

U.S.C. § 1605(a)(7) or the Flatow Amendment failed to create a cause of action. See §

1083(c)(2)(A)(iii). Plaintiffs’ contention that earlier holdings of the D.C. Circuit precluded

plaintiffs from asserting such claims is irrelevant. Section 1083(c)(2)(A)(iii) specifically

requires a showing that plaintiffs were adversely affected on the grounds that either § 1605(a)(7)

or the Flatow Amendment failed to create a cause of action against Libya. Plaintiffs have failed

to make any showing that they were adversely affected. Accordingly, § 1083(c)(2)(A)(iii) is

inapplicable to the facts of this case. Because §§ 1083(c)(2)(A)(ii-iii) do not apply to plaintiffs’

original Complaint in this matter, § 1083(c)(2)(A) is inapplicable in its entirety.



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Plaintiffs also have failed to show that they meet the specific requirements of




§ 1083(c)(3) and that their Amended Complaint qualifies as a “related action.” The Amended

Complaint is not a “related action” - it is the same action. The Amended Complaint asserts the

same claims, on behalf of the same plaintiffs, against the same defendants arising out of the same

incident. The provisions of Section 1083(c)(3) do not permit plaintiffs in a pending action to file

an Amended Complaint with identical claims arising out the same incident. Section 1083(c)(3)

simply states that “any other action arising out of the same act or incident may be brought under

section 1605A . . .” (emphasis added). Plaintiffs have not brought another action pursuant to

Section 1083(c)(3), but rather have simply brought identical claims under § 1605A as those

asserted in their original Complaint. Section 1083(c)(3) contemplates the filing of “related

actions” only, not the refiling of identical claims.



Moreover, any original action filed arising from the 1972 Lod Airport attack must have

been timely filed pursuant to § 1605(a)(7) in order for plaintiffs to be permitted to file a new

Complaint as a “related action.” See § 1083(c)(3). As shown in Libya’s Motion Dismiss and in

Section C below, plaintiffs’ claims were not timely filed under § 1605(a)(7).



Based upon the foregoing, plaintiffs cannot simply re-file their Complaint by asserting

new claims under § 1605A as a “related action” to their previous Complaint. Section 1083(c)(3)

does not apply to the present matter and the Amended Complaint should be dismissed.

C.

Plaintiffs’ Claims Are Time-Barred.















As shown in defendant’s Motion to Dismiss the Amended Complaint, plaintiffs’ claims

are time-barred pursuant to the express terms of § 1605(a)(7). Plaintiffs’ Opposition fails to

establish that the filing of their original Complaint on April 21, 2006 was timely. The personal

injuries for which plaintiffs seek recovery occurred on May 30, 1972, nearly 34 years before

their original Complaint was filed. Even under the most lengthy statute of limitations, plaintiffs’

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claims are stale. Plaintiffs’ Opposition fails to establish that the doctrine of equitable tolling

applies to the facts of this case or that they can allege facts which would warrant their delay of

nearly ten years in filing suit after any impediment to filing suit was removed (e.g., the

enactment of Section 1605(a)(7) on April 24, 1996). Plaintiffs’ claims are time-barred and the

Amended Complaint should be dismissed with prejudice.

The 10-year statute of limitations period begins to run when the cause of action arose.

“Under the FSIA, the key question is when the claim ‘arose,’ that is, when the events in question

occurred.” Estate of Buonocore, 2007 WL 2007509 LEXIS 49031 at *2; see also Vine v.

Republic of Iraq, 459 F. Supp. 2d 10, 21 (D.D.C. 1996) ( “A claim 'arises' on the date that the

action in question occurred, yet does not 'accrue' until a prior disability to suit is removed.”).

Therefore, plaintiffs’ claims in the case before this Court arose on May 30, 1972, the date of the

alleged attack, and the 10-year statute of limitations began to run on that date, not on April 24,

1996 as plaintiffs contend. In applying the doctrine of equitable tolling, a court should only

“extend the time for filing by a reasonable period after the tolling circumstance [is] mended.”

Phillips, 984 F.2d at 492. The doctrine of equitable tolling merely permits the plaintiffs to

commence suit within a reasonable period of time after Congress enacted the state sponsor of

terrorism exception 1996. “Congress did not create an automatic extension of the statute of

limitations by the length of the tolling period.” Estate of Buonocore, 2007 WL 2007509 at *3

(citing Phillips, 984 F.2d at 492).

In their Opposition to Libya’s Motion to Dismiss the Amended Complaint, plaintiffs once

again argue that the decision in Phillips is distinguishable from the facts of this case because

Phillips analyzed equitable tolling under the Death on the High Seas Act (“DOSHA”), not the

FSIA. Opp. Mem at 16. As shown in Libya’s Motion to Dismiss, this argument has previously

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been raised and rejected by Judge Kessler of this court. See Motion to Dismiss at 21 (quoting

Estate of Buonocore, 2007 WL 2007509 at *3). The scope of the decision in Phillips goes

beyond DOSHA and applies to the doctrine of equitable tolling itself. The D.C. Circuit has

repeatedly held that equitable tolling is to be allowed in extraordinary cases only, and that the

doctrine does not suspend the statute of limitations. See Communications Vending Corp. of Ariz.

v. F.C.C., 365 F.3d 1064, 1075 (D.C. Cir. 2004); see also Chung v. Dep’t of Justice, 333 F.3d

273, 279 (D.C. Cir. 2003) (stating that equitable tolling “merely ensures that the plaintiff is not,

by dint of circumstances beyond his control, deprived of a reasonable time in which to file suit.”)

(internal citation omitted).



Since plaintiffs filed their Opposition, the D.C. Circuit issued its opinion in Simon v.

Iraq, --- F.3d ----, No. 06-7175, 2008 WL 2497417 (D.C. Cir. June 24, 2008), a case involving §

1605A and former §§ 1605(a)(7) and 1605(f). However, the D.C. Circuit’s recent decision in

Simon, does not save plaintiffs’ claims. As the D.C. Circuit stated, former § 1605(a)(7) required

plaintiffs to commence their claims “not later than 10 years after the date on which the cause of

action arose.” Simon, 2008 WL 2497417, at *8; see also 28 U.S.C. § 1605(f). Section 1605(f),

unlike new § 1605A(b), does not state that claims shall not expire until 10 years after the

effective date of §§ 1605(a)(7) and 1605(f), i.e., April 24, 1996.



Because Simon involved claims arising in 1990 and 1991, see 2008 WL 2497417, at *1

(alleging torture in 1990 and 1991), the ten-year statute of limitations provided for in § 1605(f)

left plaintiffs with at least four years in which to bring their claims (i.e., until 2000 and 2001,

respectively). Therefore, equitable tolling principles properly applied to those claims, such that

the Simon court “add[ed] ‘the period during which [Iraq] was immune from suit’” to conclude

that the plaintiffs’ claims in that case remained ripe until 2006. Id. at *8 (quoting 28 U.S.C.

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§ 1605(f)). Since the plaintiffs in Simon brought suit in 2003, the court concluded their claims

were timely.

In stark contrast to Simon, the plaintiffs’ claims in the case before this Court arose on

May 30, 1972, at the time of the Lod Airport attack. Thus, the 10-year statute of limitation had

already expired at the latest on May 30, 1982, such that these plaintiffs’ claims were already

extinguished at the time Congress enacted § 1605(a)(7) in 1996. In other words, unlike in

Simon, by April 1996, the plaintiffs herein had no claim left for a court to extend by equitable

tolling or otherwise. Therefore, the Court should dismiss the plaintiffs’ claims as untimely.

Similarly, the limitations period in § 1605A(b) does not apply retroactively to the filing

of plaintiffs’ original Complaint, as plaintiffs would have this Court believe. The limitations

period in § 1605A(b) applies prospectively only. As shown in Defendants’ Motion to Dismiss,

the relevant limitations for prior and related actions are contained in § 1083(c). There is

absolutely no support for plaintiffs’ statement that “Congress considered any prior action that

had been filed within ‘10 years after April 24, 1996’ to have been timely filed.” Opp. Mem. at

17. To the contrary, § 1083(c)(3) requires that, where a related action is filed, the underlying

case must have been timely filed pursuant to § 1605(a)(7). Moreover, if plaintiffs’ position was

correct, there would be no need for Congress to set forth those limitations contained in § 1083(c)

related to prior and related actions. Plaintiffs’ argument in this regard is contrary to the express

provisions of the statute.1






1 Plaintiffs contend that “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.” Opp. Mem. at 19. Once again,
plaintiffs have misconstrued the provisions of § 1083(c)(3). Section 1083(c)(3) does not allow for the refiling of
identical claims by identical parties in a new complaint. It merely allows the filing of a “related action.”

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Section 1605A Does Not Provide Courts With Subject Matter Jurisdiction
Over Claims Brought By Indirect Victims Of Terrorism.

D.


In their Opposition, plaintiffs argue that “over forty cases decided by this Court” have












held that courts have subject matter jurisdiction over claims of indirect victims of terrorism.

Opp. Mem. at 11. However, the cases cited by plaintiffs in their Opposition involved default

judgments where the defense of lack of subject matter jurisdiction for claims of indirect victims

of terrorism under § 1605(a)(7) was neither raised nor considered by the court.2 None of the

cases cited by plaintiffs’ specifically address the question of whether courts have subject matter

jurisdiction over claims of indirect victims of terrorism. Each court implicitly assumes, without

briefing from the parties or its own analysis, that such claims fell within the scope of

§ 1605(a)(7). Therefore, the cases cited by plaintiffs are of no precedential value with respect to

the limited issue of subject matter jurisdiction of indirect victims of terrorism and the Court

should not consider those cases cited by plaintiffs on this issue. See Estate of Buonocore v.

Great Socialist People’s Libyan Arab Jamahiriya, 2007 WL 2007509 at *8 (D.D.C. July 9,

2007) (declining to follow holdings of district court decisions in default cases where statute of

limitations defense was neither raised, nor considered by court); see also Vine v. Republic of

Iraq, 459 F. Supp. 2d 10, 21 n. 9 (D.D.C. 2006) (same).

Plaintiffs further contend without support that Libya’s reliance upon “oblique references”

to the legislative history of the 1996 FSIA amendments is mispl