Michelle Van Beneden v. Abdallah Al-Sanusi ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 7, 2012 Decided March 22, 2013
No. 11-7045
MICHELLE VAN BENEDEN,
APPELLANT
v.
ABDALLAH AL-SANUSI, MAJOR, CHIEF, LIBYAN INTERNAL
SECURITY, BAB-AL-AZIZYEH, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01309)
Steven R. Perles argued the cause for appellant. With him
on the briefs were Edward B. MacAllister, Richard D.
Heideman, and Tracy Reichman Kalik.
Ramsey Clark argued the cause for appellees. With him
on the brief was Lawrence W. Schilling.
Before: TATEL and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
2
BROWN, Circuit Judge: On December 27, 1985, members
of the Abu Nidal Organization attacked the international
flights terminals in Rome’s Leonardo da Vinci Airport and
Vienna’s Schwechat Airport, killing sixteen people and
wounding over a hundred more. Peter Knowland was one of
those injured in the Vienna attack. Over two decades later, he
sued Syria, Libya, and a number of Syrian and Libyan
individuals and organizations for sponsoring and supporting
the terrorist attacks.1 The district court dismissed the case as
untimely, and Knowland’s legal representative, Michelle Van
Beneden,2 appealed. We reverse.
I
The Foreign Sovereign Immunities Act (FSIA) protects
foreign sovereigns from suit in the United States unless
Congress specifically provides otherwise. 28 U.S.C. § 1604.
In the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, § 221(a), 110 Stat. 1214, 1241–42
(codified at 28 U.S.C. § 1605(a)(7)), Congress waived the
immunity of foreign sovereigns designated by the State
Department as state sponsors of terrorism in suits for personal
injury or death resulting from, among other things, the
provision of material support for terrorism. While this waiver
removed one barrier to suits against foreign sovereigns, it did
not empower plaintiffs to sue them directly: FSIA provided a
private right of action for suits against officials, employees,
1
Only Syria, the Syrian Air Force Intelligence, and the chief
of the Syrian Air Force Intelligence remain defendants. The district
court dismissed all claims against Libya and its agents after
Congress passed the Libyan Claims Resolution Act, Pub. L. No.
110-301, 122 Stat. 2999 (2008).
2
Knowland died before the district court filed its opinion,
leaving his estate to Michelle Van Beneden. For consistency, we
refer to Knowland throughout the opinion.
3
and agents of the foreign sovereign, but plaintiffs seeking to
sue the sovereign itself were forced to invoke an independent
cause of action, such as one provided by state law. See
Cicippio-Puleo v. Islamic Repub. of Iran, 353 F.3d 1024,
1029, 1036 (D.C. Cir. 2004).
In 2008, Congress amended this scheme. The National
Defense Authorization Act for Fiscal Year 2008, Pub. L. No.
110-181, § 1083, 122 Stat. 3, 338–44 (“NDAA”), repealed
§ 1605(a)(7) and replaced it with § 1605A. Section 1605A is
similar to § 1605(a)(7), but it is “more advantageous to
plaintiffs.” Simon v. Repub. of Iraq, 529 F.3d 1187, 1190
(D.C. Cir. 2008), rev’d on other grounds sub nom., Repub. of
Iraq v. Beaty, 556 U.S. 848 (2009). Among other things, it
provides a private right of action against sovereign entities.
Yet even as the NDAA rang the knell for § 1605(a)(7) suits, it
promised a slow burial. First, a pending action brought under
§ 1605(a)(7) could be converted into a § 1605A action if the
original action “relied upon” § 1605(a)(7) for a cause of
action and was “adversely affected” by the statute’s failure to
provide one. NDAA § 1083(c)(2) (codified as note to
§ 1605A). Second, “[i]f an action arising out of an act or
incident has been timely commenced under section
1605(a)(7) . . . any other action arising out of the same act or
incident may be brought under section 1605A” within sixty
days of judgment in the § 1605(a)(7) action. NDAA
§ 1083(c)(3) (codified as note to § 1605A); see 28 U.S.C.
§ 1605A(b) (permitting § 1605A actions if a “related action
was commenced under section 1605(a)(7)” within the
limitations period).
Because Knowland filed suit after the § 1605A statute of
limitations had run, his only hope of obtaining judicial relief
depends on his ability to invoke the “related action”
provision. According to Knowland, his suit is related to Estate
4
of Buonocore v. Great Socialist People’s Libyan Arab
Jamahiriya, Civ. Action No. 1:06-cv-00727 (D.D.C.) (filed
Apr. 21, 2006), a § 1605(a)(7) suit against many of the same
defendants for their alleged support of the Rome attack. It is
undisputed that Buonocore was timely filed and that
Knowland’s suit would be timely filed under § 1083(c)(3) if
Buonocore is in fact a related action. Unfortunately for
Knowland, the district court concluded the two actions were
not in fact related and dismissed the suit for failure to state a
claim.3 We review the dismissal de novo. Hettinga v. United
States, 677 F.3d 471, 476 (D.C. Cir. 2012).
II
The Abu Nidal Organization (“ANO”) seeks the
elimination of Israel and the derailment of the Middle East
peace process. BUREAU OF COUNTERTERRORISM, DEP’T OF
STATE, COUNTRY REPORTS ON TERRORISM 2011 at 221
(2012). Since it split from the Palestine Liberation
Organization in 1974, the ANO has staged attacks in over
twenty countries, triggering a State Department designation as
a foreign terrorist organization. Id.
According to Knowland’s complaint, which we assume
to be true and construe in the light most favorable to him, see
Papasan v. Allain, 478 U.S. 265, 283 (1986), the Vienna and
3
The district court held that a § 1083(c)(3) “related action”
must be filed by the same plaintiff who filed the predicate
§ 1605(a)(7) action and that Knowland’s action does not arise out
of “the same act or incident” as Buonocore. On appeal, Knowland
challenges both holdings; inexplicably, however, Syria addresses
only the second. Viewing this as an implicit concession, see, e.g., S.
Cal. Edison Co. v. FERC, 603 F.3d 996, 1000 (D.C. Cir. 2010), we
do not address the district court’s determination that Knowland’s
suit fails because he was not involved in Buonocore.
5
Rome attacks were part of a single “plan to conduct terrorist
attacks at airports and tourist attractions frequented by
Americans and Israelis.” Compl. ¶¶ 29–30. Both groups of
attackers trained together in a Syrian-sponsored training camp
in Lebanon and coordinated their attacks to occur
simultaneously. The two groups used the same type of
weapons (Kalashnikov submachine rifles and type F1 hand
grenades), which came from a single source (the grenades in
each attack bore the same markings), and they executed the
same strategy: the terrorists met with an ANO contact upon
their arrival at their destination cities, exchanging unused
money and passports for clothes and weapons; they surveyed
the target terminals the day before the attack; and they
initiated the attack at 9 a.m. local time after smuggling their
weapons into the airports.
Syria insists the two attacks cannot be the “same act or
incident” because of the literal differences between the two
attacks: the two airports, “nearly 500 miles” apart, are distinct
physical facilities, and the attacks involved different ANO
personnel, law enforcement agents, and victims. Appellee Br.
at 3. The district court took a similar approach, noting in
addition the grammatical singularity of the statutory language
(“act or incident” rather than “acts or incidents”). These
analyses are overly formulaic.
Guided by the statute’s text and purpose, we interpret its
ambiguities flexibly and capaciously.4 When determining
4
“The text, history, and purpose of the statute make clear that
the statute does not counsel a narrow reading.” Doe v. Bin Laden,
663 F.3d 64, 70 (2d Cir. 2011) (referring generally to FSIA’s
terrorism exception). Congress sought to lighten the jurisdictional
burdens borne by victims of terrorism seeking judicial redress, such
as by ensuring that individuals barred from suit under § 1605(a)(7)
would nevertheless be able to bring their claims. Though the statute
6
whether two or more attacks should be deemed part of the
same “act or incident,” we look not to single points of
congruence but to the full spectrum along which discrete
actions increasingly relate. Some terrorist organizations are
close-knit, insular cells; others are loose-jointed networks of
largely independent operational units joined by a common
goal. Interpreting the proximal connection between two acts
of terrorism therefore requires a number of conceptual
judgments—for instance, about the causal role of a particular
organizational objective, the relationship between the
organization and its members or affiliates, and the degree and
nature of coordination among the attacks. Mining semantics
by invoking the ordinary meanings of “act” and “incident”
provides no obvious help. Those ordinary meanings suggest it
is as reasonable to say that “act” refers to a single terrorist
pulling the trigger a single time, while “incident” refers to the
totality of that terrorist’s violence in a single day, as it is to
say that “act” refers to the Vienna attack, while “incident”
refers to the airport assaults as a whole.
This conceptual ambiguity is perhaps the inevitable
concomitant of such events. Consider two others. On June 6,
1944, the Allied army landed on a stretch of Normandy coast
spanning over fifty miles; on September 11, 2001, planes
crashed into the Pentagon, both World Trade Center towers,
and an empty field in Pennsylvania. Was the American
landing at Utah beach part of the same “incident” as the
British and Canadian landings at Juno beach? Was American
of limitations for § 1605(a)(7) claims was already set at the
generous length of ten years, FSIA contained no mention of
“related actions” until the NDAA, which reflected Congress’s
judgment that “American citizens who have been aggrieved by any
state sponsor of terrorism . . . deserve every possible means of
redress available to them.” 154 Cong. Rec. 288 (2008) (statement
of Rep. McHugh).
7
Airlines Flight 11’s crash into the North Tower of the World
Trade Center part of the same “incident” as American
Airlines Flight 77’s crash into the Pentagon? It is possible to
answer both “yes” and “no” to each question. Ultimately, the
answer depends on a broad consideration of all relevant facts.
Taking everything together—a single group of people
committing two simultaneous attacks planned as part of a
coordinated assault on an identifiable group of individuals at
similar locations using weapons from the same shipment—we
think the Vienna and Rome attacks constitute the same
“incident.” The factors that mark the two attacks as
constituents of a single incident distinguish this case from one
where the only connections between the two terrorist attacks
are the attackers’ ideology and purpose, training, and general
methodology. The Vienna and Rome attacks were not discrete
attacks that happened to occur on the same day, sharing just
enough features that observers could project a relationship;
they were organized jointly by the same terrorist organization
and planned to occur simultaneously. Indeed, Syria concedes
that the simultaneous attack of two tour buses at opposite
sides of a city would be a single act or incident if the attacks
were planned together and by the same people. We see no
difference here.
As the jurisprudence under Federal Rule of Civil
Procedure 15(c) illustrates, Congress has allowed relation
back of newly filed claims when doing so assures defendants
notice within the limitations period. See Schiavone v. Fortune,
477 U.S. 21, 31 (1986); Meijer, Inc. v. Biovail Corp., 533
F.3d 857, 866 (D.C. Cir. 2008). The analogy is neither precise
nor dispositive, but we nevertheless note that in this case, the
“act or incident” requirement does no violence to the
defendants’ notice interests. Given the nature of the
8
allegations, the suit relating to the Rome attack put them on
notice they may be liable for the Vienna attack.
III
For the reasons stated, the district court’s order
dismissing the case is reversed, and the case is remanded for
further proceedings consistent with this opinion.
So ordered.