                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA
_________________________________
                                  )
DAVID M. ROEDER, et al.,          )
                                  )
               Plaintiffs,        )
                                  ) Civ. Action No. 08-487 (EGS)
          v.                      )
                                  )
THE ISLAMIC REPUBLIC OF IRAN,    )
                                  )
               Defendant.         )
_________________________________)

                        MEMORANDUM OPINION

    This case represents the latest in a series of attempts by

plaintiffs, who were taken hostage by the government of the

Islamic Republic of Iran in 1979, to hold that country

responsible for their tremendous suffering.   Plaintiffs have

attempted to sue Iran at various times since 1983, without

success.   See, e.g., Persinger v. Islamic Republic of Iran, 729

F.2d 835 (D.C. Cir. 1984); McKeel v. Islamic Republic of Iran,

722 F.2d 582 (9th Cir. 1983); Ledgerwood v. State of Iran, 617

F. Supp. 311 (D.D.C. 1985).   Plaintiffs again filed suit in this

Court in 2000, in Roeder v. Islamic Republic of Iran, Civ.

Action No. 00-3110(EGS) (hereinafter “Roeder I”).   In April

2002, this Court dismissed plaintiffs’ claims.   See Roeder I,

195 F. Supp. 2d 140 (D.D.C. 2002).   This Court held that the

Foreign Sovereign Immunities Act (“FSIA”), as it existed in
2002, did not create a private right of action against the

government of Iran and accordingly that plaintiffs could not

pursue their claims against Iran.    The Court of Appeals affirmed

the decision in 2003.   See Roeder v. Islamic Republic of Iran,

333 F.3d 228 (D.C. Cir. 2003) (also referenced herein as Roeder

I).

      In their previous cases, including Roeder I, plaintiffs

have been thwarted by the Algiers Accords, the 1981 executive,

bi-lateral agreement between the United States and Iran that

secured the hostages’ release.   Both the Algiers Accords and its

implementing regulations contain express prohibitions barring

lawsuits arising out of the hostage taking.    As this Court and

the Court of Appeals explained in Roeder I, Congress has the

authority to abrogate the Algiers Accords; however, it must act

clearly and unambiguously to do so.    See Roeder I, 195 F. Supp.

2d at 168-170, aff’d 333 F.3d 237-238.    In Roeder I, this

Circuit concluded that as of 2002 Congress had not acted clearly

or unambiguously, and thus dismissed plaintiffs’ claims.      See

195 F. Supp.2d at 166; aff’d 333 F.3d at 238.

      Now, several years later, plaintiffs have returned to this

Court and filed the instant case (hereinafter “Roeder II”).

Plaintiffs argue that in the years since Roeder I was decided,

Congress has created a private right of action which enables

them to proceed with a lawsuit against Iran.    Specifically, they

                                 2
argue that by enacting the National Defense Authorization Act

for Fiscal Year 2008, Congress has finally spoken clearly and

unambiguously, and created a cause of action to enable them to

sue Iran for damages.   Compl. ¶ 20.   The United States

intervened and shortly thereafter filed a motion to dismiss,

arguing that once again, Congress has failed to act with

sufficient clarity to abrogate the Algiers Accords.   This Court

is thus confronted with the same fundamental question it faced

in 2002: whether Congress has acted definitively to abrogate the

Algiers Accords and enable plaintiffs to move forward in their

suit for damages.   With an equal measure of frustration, regret,

and compassion the Court must conclude, once again, that

Congress has failed to provide plaintiffs with a cause of action

against Iran.   Accordingly, this Court is not empowered to

provide plaintiffs the relief they seek and the United States’

motion to dismiss must be GRANTED.

I.   BACKGROUND

     A.   Roeder I, and the State of the Law When it Was Decided

     As set forth above, this Court does not write on a clean

slate: this case, like Roeder I, rests squarely on whether

Congress has abrogated the Algiers Accords.   As explained in

Roeder I, the Algiers Accords is an international executive

agreement the United States entered into with the Islamic

Republic of Iran on January 19, 1981, in order to obtain the

                                 3
freedom of the plaintiff hostages.     Among other commitments

contained in the agreement, the United States agreed to “bar and

preclude the prosecution against Iran of any pending or future

claim of . . . a United States national arising out of the

events . . . related to (A) the seizure of the 52 United States

nationals on November 4, 1979, [and] (B) their subsequent

detention.”    Declaration of the Government of the Democratic and

Popular Republic of Algeria, ¶ 11 (reprinted at 20 I.L.M. 223,

227).

        The Roeder I courts explained that a statute must satisfy

one of two criteria to overturn a previously-enacted

international agreement such as the Algiers Accords.    First, if

a later statute unambiguously conflicts with the international

agreement on its face, the unambiguous later statute will

prevail.     See Roeder I, 195 F. Supp. 2d at 170 (citing Reid v.

Covert, 354 U.S. 1, 17 (1957); Whitney v. Robertson, 124 U.S.

190, 191 (1888); Committee of United States Citizens Living in

Nicaragua v. Reagan, 859 F.2d 929, 936-37 (D.C. Cir. 1988);

South African Airways v. Dole, 817 F.2d 119, 126 (D.C. Cir.

1987)).    If the statute is ambiguous, however, a Court will not

interpret it to modify or abrogate a treaty or executive

agreement “unless such purpose of Congress has been clearly

expressed.”     Bennett v. Islamic Republic of Iran, No. 09-5147,

2010 WL 3515811 at *4 (D.C. Cir. Sept. 10, 2010) (quotation

                                   4
omitted, citing Roeder I, 333 F.3d at 237).     As the Court of

Appeals explained: 

    Executive agreements are essentially contracts between
    nations, and like contracts between individuals,
    executive agreements are expected to be honored by the
    parties. Congress (or the President acting alone) may
    abrogate an executive agreement, but legislation must
    be clear to ensure that Congress - and the President -
    have considered the consequences. The requirement of
    clear statement assures that the legislature has in
    fact faced, and intended to bring into issue, the
    critical matters involved in the judicial decision. 

Roeder I, 333 F.3d at 238 (internal citation omitted).

     Accordingly, in Roeder I, the courts determined that an Act

of Congress will only abrogate the Algiers Accords’ bar to the

hostages’ ability to sue if it (1) clearly and unambiguously

gives the Court subject matter jurisdiction to hear plaintiffs’

case, and (2) clearly and unambiguously creates a cause of

action against Iran for the 1979 hostage taking. See Roeder I,

195 F. Supp. 2d at 163, 167, aff’d 333 F.3d at 236-237.       This

Court found, and the D.C. Circuit affirmed, that when Roeder I

was decided, Congress had provided the first, but not the

second.     The Roeder I courts’ analysis of subject matter

jurisdiction and private rights of action are briefly summarized

in turn. 

     As a general matter, the FSIA grants foreign states

immunity from liability in United States courts.    Federal courts

thus generally lack subject matter jurisdiction over claims

                                   5
against a foreign state.                                        Congress has, however, provided

several specific exceptions to this immunity.                                         See 28 U.S.C.

§ 1604; see also Roeder I, 333 F.3d at 235.                                         The Anti-Terrorism

Act of 1996 created one such exception, and allowed jurisdiction

over foreign states for certain state-sponsored acts of

terrorism.                         See 28 U.S.C. § 1605(a)(7) (1996).                  Initially, the

1979 hostage-taking of the Roeder I plaintiffs did not fall

within that exception; however, Congress amended the law in 2001

to specifically waive sovereign immunity for acts “related to

Case Number 1:00CV03110(EGS)1 in the United States District Court

for the District of Columbia.”                                        Pub. L. 107-77, 115 Stat. 748

(2001) (“Section 626(c)”).                                        Thus, Section 626(c) amended the

FSIA to remove sovereign immunity and create jurisdiction for

any acts that related to Roeder I.                                         See 195 F. Supp. 2d at 163;

aff’d 333 F.3d at 235.                                         The Roeder I courts found that Congress

had therefore clearly and unambiguously created subject matter

jurisdiction for plaintiffs’ claims to be heard in this Court.

              The Roeder I courts next turned to the question of whether

the 2001 amendments to the FSIA unambiguously created a cause of

action for plaintiffs to sue Iran.                                         The courts found that


                                                            
1
   The text originally read “. . . (ESG) . . .” but was corrected
in January 2002 to properly set forth the undersigned’s
initials. See Pub. L. 107-117, 115 Stat. 2230 (2002).

 

                                                                       6
Congress had not unambiguously created such a cause of action.

As this Court explained, while the exceptions to sovereign

immunity “allowed federal courts to have jurisdiction over

claims against foreign governments arising [out] of state

sponsored terrorist activity. . . . [w]hat the [exceptions] did

not do was create a private cause of action for the victims of

state-sponsored terrorism.   Like all the other exceptions to

foreign sovereign immunity in the FSIA, victims of state-

sponsored terrorism had to look to other laws to provide a cause

of action against the foreign state.”   Roeder I, 195 F. Supp.

2d. at 171 (citations omitted).   When Roeder I was decided, the

sole unambiguous private cause of action for victims of

terrorism under federal law was conferred by the Flatow

Amendment of 1996, 28 U.S.C. § 1605 note, which only provided “a

private right of action against officials, employees and agents

of a foreign state, not against the foreign state itself.”

Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033

(D.C. Cir. 2004)(superseded by statute); see also In re: Islamic

Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 46

(D.D.C. 2009).   The 2001 amendments to the FSIA did not clearly

expand this cause of action.

     As such, the courts found that the 2001 amendments to the

FSIA were ambiguous.   While it was possible to interpret the

amendments as creating a new private right of action for

                                  7
plaintiffs, it was equally plausible to read the amendments to

confer subject matter jurisdiction over the lawsuit but not to

create a cause of action for plaintiffs to sue the state of

Iran.        See 195 F. Supp. 2d at 171; aff’d 333 F.3d at 236.

Because the Courts found the statutory text ambiguous, they

examined the statute and the legislative history to determine

whether Congress expressed a clear intent to abrogate the

Algiers Accords.        See id.   Neither this Court nor the D.C.

Circuit found a sufficiently clear manifestation of

congressional intent.       Accordingly, because Congress had neither

created an unambiguous cause of action nor demonstrated a clear

intent to abrogate the Algiers Accords, plaintiffs were barred

from pursuing their claims against the Islamic Republic of Iran

in Roeder I.


        B.     Congressional Efforts After Roeder I, and the Existing
               State of the Law.

        Following Roeder I, several bills were introduced in

Congress which, if enacted, would have undoubtedly provided the

1979 hostages with a viable means to sue Iran.        In a 2008 Report

for Congress, the Congressional Research Service details

attempts in the 107th, 108th, 109th, and 110th sessions of Congress

“to enact legislation that would explicitly abrogate the

provision of the Algiers Accords barring the hostages’ suit.”

JENNIFER K. ELSEA, CONGRESSIONAL RESEARCH SERV., SUITS AGAINST

                                       8
TERRORIST STATES BY VICTIMS OF TERRORISM (2008), p. CRS-31,

available at http://www.fas.org/sgp/crs/terror/RL31258.pdf.         As

set forth more fully in the Report, Congress has considered

multiple bills containing language expressly nullifying the

relevant provisions of the Algiers Accords.     Id. at CRS-31, -32.

None of that language, however, was enacted into law.     Id.    

     Rather, in January of 2008, Congress enacted and the

President signed into law the National Defense Authorization Act

of 2008 (“NDAA”), Pub. L. 110-181, 122 Stat. 3 (2008), which

precipitated the filing of the instant lawsuit.     For the

purposes of resolving the issues in this case, the only relevant

provision is Section 1083, which has been codified at 28 U.S.C.

§ 1605A.   The Court will provide a brief overview of the three

relevant provisions of § 1083 here; detailed analysis of each

provision will be set forth infra.

     i.    28 U.S.C. § 1605A(a)

     Title 28 U.S.C. § 1605A(a) reformulates the terrorism

exceptions to sovereign immunity.     It incorporates one new

provision that encompasses both: (1) the terrorism exception to

the jurisdictional immunity of a foreign state, which originally

appeared in the Anti-Terrorism Act of 1996, and (2) the specific


exception to sovereign immunity for Roeder I that was set forth

in § 626(c).



                                  9
     ii.   28 U.S.C. §§ 1605A(c) and 1605A Note

     Title 28 U.S.C. § 1605A(c) is titled “Private Right of

Action.”   It creates a cause of action for damages against a

“foreign state that is or was a state sponsor of terrorism”

under certain circumstances which are set forth elsewhere in the

statute.   See 28 U.S.C. § 1605A(c).   Only one such circumstance

is relevant for the purposes of this case. This circumstance is

set forth at Section 1083(c) of the NDAA, codified as 28 U.S.C.

§ 1605A note, and provides that certain cases that are otherwise

time-barred may be filed or refiled under the new statute.


     Section 1083(c) delineates the scope of retroactive relief

available under § 1605A.   It sets forth two situations where the

NDAA may apply to cases filed prior to its enactment.   First,

section 1083(c)(2), titled “Prior Actions,” provides that

certain cases which were still pending before the courts under

the preceding statutory scheme when the NDAA was enacted may be

refiled under the NDAA.    By refiling, claimants may take

advantage of the new statute’s provisions, which are

significantly more favorable to terrorism plaintiffs in general.

Second, section 1083(c)(3), titled “Related Actions,” provides

that certain new actions may be filed under the NDAA if they

arose out of the same act or incident as cases filed under the

previous statutory scheme.   It reads, in relevant part,



                                 10
        (3)    RELATED ACTIONS. - If an action arising out of an act
               or incident has been timely commenced under section
               1605(a)(7) of title 28, United States Code . . . any
               other action arising out of the same act or incident
               may be brought under section 1605A of title 28, United
               States Code [this section], if the action is commenced
               not later than the latter of 60 days after —
                (A) the date of the entry of judgment in the
                original action; or

                (B) the date of the enactment of this Act [Jan.
                28, 2008].

        Taken together, § 1605A(c) and § 1083(c)(3) provide a cause

of action against state sponsors of terrorism in otherwise-

untimely new actions under the NDAA - not refiled old ones - so

long as the new action is “related” to another action that has

been timely commenced under the FSIA and Anti-Terrorism Act of

1996.

        II.    PROCEDURAL HISTORY

        On March 21, 2008, plaintiffs commenced this action against

the Islamic Republic of Iran alleging violations of 28 U.S.C. §

1605A.        They assert that Roeder II is “related” to Roeder I, as

defined in Section 1083(c)(3) of the NDAA (28 U.S.C. § 1605A

note) and therefore that they have a cause of action under §

1605A(c).       Compl. p. 2, see also ¶¶ 21-24.   Specifically, they

allege that “[t]his action is a related action to Roeder v.

Islamic Republic of Iran, et al., Case No. 1:00CV03110(EGS), and

arises out of the same act or incident which was timely

commenced under section 1605(a)(7) of title 28 in this Court.

                                     11
As such, this action qualifies as a related action under 28

U.S.C. § 1605A.”   Compl. p. 2.   They seek 6.6 billion dollars in

compensatory and punitive damages.

     In light of the events of Roeder I, namely Iran’s refusal

to appear in this Court and the United States’ last minute

intervention in the litigation, the Court extended an invitation

to the Department of State to “file a statement of interest in

the present case, if appropriate, pursuant to 28 U.S.C. § 517.”

Doc. No. 7, Letter from Hon. Emmet G. Sullivan to John B.

Bellinger III, Legal Advisor, U.S. Department of State, April

11, 2008.   The government responded in June 2008, stating that

if plaintiffs were able to perfect service on Iran and the case

were to go forward, “the United States may well have an interest

in participating in this litigation.”   Doc. No. 11, Report of

United States, June 13, 2008.

     Plaintiffs served Iran at the end of November 2008, but

Iran elected not to appear.   In April 2009, plaintiffs filed a

motion for default judgment as to liability.   Immediately

thereafter, the United States moved to intervene in this lawsuit

and subsequently filed a motion to dismiss.    In early October

2009, plaintiffs filed a notice of supplemental authority: In re

Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31

(D.D.C. 2009).   Following briefing on this supplemental

authority, this Court heard oral argument on the government’s

                                  12
motion to dismiss on April 21, 2010.    At the hearing, the Court

expressed its concern about the lack of clarity in § 1083.   The

Court continued the motions hearing for 30 days and directed the

parties to inform the Court in the event of any further

Congressional developments.   The Court reconvened the hearing on

May 27, 2010, confirmed with the parties that no Congressional

action had been taken, and took the case under advisement.   The

parties’ motions are now ripe for resolution by the Court.


III. ANALYSIS

     Pending before the Court is the United States’ motion to

dismiss for failure to state a claim.   In its motion to dismiss,

the government concedes that § 1083 of the NDAA provides a cause

of action against Iran under certain circumstances, but argues

that those circumstances do not unambiguously include

plaintiffs’ case.   Thus, the government argues, Congress has not

clearly abrogated the Algiers Accords’ substantive bar to this

litigation.   The United States argues that while § 1083 creates

substantive rights for other victims of terrorism, it did not

cure the 1979 hostages’ inability to pursue claims against Iran.

Plaintiffs raise three main arguments in opposition.    First,

they argue that Congress unambiguously created a private right

of action for plaintiffs, in particular, to sue Iran pursuant to

§ 1605A(a)(2)(b).   Alternatively, plaintiffs argue that


                                13
§ 1605A(c) and NDAA section 1083(c), taken together,

unambiguously create a cause of action because Roeder I

qualifies as a “related action” to Roeder II as that term is

defined by § 1083(c)(3).   Finally, plaintiffs argue that “[e]ven

if Congress [] enacted ambiguous statutory language . . . § 1083

would still abrogate the Algiers Accords because Congress’s

intent to do so is overwhelmingly clear.”    Pls.’ Opp’n at 6.

     After careful consideration of the parties’ arguments and

the applicable law, the Court finds that plaintiffs’ ability to

sue the government of Iran has not changed since Roeder I:

§ 1083 does not unambiguously create a cause of action for these

plaintiffs against Iran.   The Court’s holding in Roeder I

applies equally to the new statutory scheme:    “Because th[e]

statute is ambiguous, and because [§ 1083] [n]ever mentions the

Algiers Accords in statutory text or legislative history, this

Court cannot interpret this legislation to implicitly abrogate a

binding international agreement.     Therefore this Court must

dismiss plaintiffs’ claims.”   195 F. Supp. 2d at 166.

     A.   Congress Must Act Clearly and Unambiguously to
          Overturn the Algiers Accords.

     The parties agree that this case, like Roeder I, turns on

whether a later-in-time statute abrogates the Algiers Accords.

On September 10, 2010, the D.C. Circuit reaffirmed the demanding

standard a party must meet in order to show that a treaty or


                                14
executive agreement has been abrogated or substantively modified

by a later statute.   See Bennett v. Islamic Republic of Iran,

2010 WL 3515811 at *4 (citing Roeder I, 333 F.3d at 237).     As

fully set forth in the Roeder I decisions, and recapitulated in

Section I.A supra, it is not enough to show that a later-in-time

statute may be read to abrogate a previously-enacted

international agreement.   Rather, the later statute must

unambiguously conflict with the agreement in its language and

effect.   A statute is only unambiguous if it is not “reasonably

susceptible to more than one meaning.”   McCreary v. Offner, 172

F.3d 76, 82 (D.C. Cir. 1999); see also U.S. v. Villanueva-

Sotelo, 515 F.3d 1234, 1237 (D.C. Cir. 2008) (statute is

ambiguous when more than one interpretation is possible); Air

Transp. Ass'n of Am. v. FAA, 169 F.3d 1, 4 (D.C. Cir. 1999)

(finding statute ambiguous because, “[a]lthough the inference

petitioner would draw as to the statute’s meaning is not by any

means unreasonable, it is also not inevitable.”).   If the later

statute is not unambiguous on its face, it must contain a clear

expression of Congressional intent to abrogate the earlier

agreement.   See Roeder I, 195 F. Supp. 2d at 169-170 (collecting

cases); see also 333 F.3d at 237-38 (collecting cases).     As set

forth by this Court in Roeder I:

     The Supreme Court has provided some guidance as to
     what it will accept and not accept as a clear
     expression of legislative intent in this context. The

                                15
              Supreme Court has unequivocally held that legislative
              silence is not sufficient to abrogate a treaty or a
              bi-lateral executive international agreement. When a
              later statute conflicts with an earlier agreement, and
              Congress has neither mentioned the agreement in the
              text of the statute nor in the legislative history of
              the statute, the Supreme Court has conclusively held
              that it can not find the requisite Congressional
              intent to abrogate.

Roeder I, 195 F. Supp. 2d at 175 (internal citations and

quotations omitted); aff’d 333 F.3d at 238.                         The law on this

issue has not changed since Roeder I was decided.                         See, e.g.,

Medellin v. Texas, 552 U.S. 491, 509 n.5 (2008).2

              In short, when interpreting newly created federal

legislation which covers the same legal ground as pre-existing

international agreements, this Court’s role is extremely

limited.                     As set forth in Roeder I,

              There are two branches of government that are
              empowered to abrogate and rescind the Algiers Accords,
              and the judiciary is not one of them. The political

                                                            
2
   The Medellin Court cited Cook v. United States, 288 U.S. 102,
119-120 (1933), for the proposition that a later-in-time federal
statute supersedes inconsistent treaty provisions. Cook, in
turn, recited the already-settled principle that “a treaty will
not be deemed to have been abrogated or modified by a later
statute, unless such purpose on the part of Congress has been
clearly expressed. Here, the contrary appears. The committee
reports and the debates upon the act of 1930, like the re-
enacted section itself, make no reference to the Treaty.” Id.
(citations omitted). Accordingly, the Cook court found that the
treaty at issue in that case remained unaffected by the later-
in-time statute. Id.

                                                               16
     considerations that must be balanced prior to such a
     decision are beyond both the expertise and the mandate
     of this Court. Unless and until either the
     legislative or executive branch acts clearly and
     decisively, this Court cannot grant plaintiffs the
     relief they seek.
195 F. Supp. 2d at 145.

     B.   Section 1605A(a) Does Not Unambiguously Create A Cause
          of Action for Plaintiffs.

     In their opposition to the motion to dismiss, plaintiffs

argue that § 1605A(a)(2)(B) unambiguously creates a cause of

action specifically for them.   Pls.’ Opp’n 6-19.   The government

counters that § 1605A(a)(2)(B) only confers subject matter

jurisdiction on the courts; it does not create a cause of action

for plaintiffs to sue Iran.   After careful consideration, and as

explained more fully below, the Court finds that the text and

structure of the statute do not support plaintiffs’

construction.   Moreover, plaintiffs’ construction of

§ 1605A(a)(2)(B) ignores the binding authority of Roeder I, in

which the D.C. Circuit held that substantially identical

language in a predecessor statute did not unambiguously create a

cause of action.   Accordingly, the Court concludes that

§ 1605A(a)(2)(B) does not provide plaintiffs with a cause of

action against Iran.




                                17
     Section 1605A(a) provides in relevant part:

     (a)   IN GENERAL

           (1)   NO IMMUNITY. A foreign state shall not be immune
                 from the jurisdiction of courts of the United
                 States . . . in which money damages are sought
                 against a foreign state for personal injury or
                 death that was caused by an act of torture,
                 extrajudicial killing, aircraft sabotage, hostage
                 taking . . .

           (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

                 [...]

                 (B)     the act described in paragraph (1) is
                         related to case Number 1:00CV03110 (EGS) in
                         the United States District Court for the
                         District of Columbia.

28 U.S.C. § 1605A(a).

     In order for statutory construction to withstand scrutiny,

“at a minimum, [it] must account for a statute’s full text,

langauge as well as punctuation, structure and subject matter.”

U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of America,

Inc., 508 U.S. 439, 455 (1993).      Plaintiffs’ proposed reading of

the statute violates this irreducible minimum.      The text of

§ 1605A(a) refers only to subject matter jurisdiction; it is

separate and apart from § 1605A(c), which creates a cause of




                                    18
action.3                    Because § 1605A(c), not § 1605A(a), creates a cause of

action, and because the reference to Roeder I occurs only in the

jurisdictional section, § 1605A(a), the Court concludes that

§ 1605A(a) does not create a cause of action for plaintiffs to

sue Iran.

              Plaintiffs’ argument is further undermined when considered

in light of the history of this case in particular, where the

outcome of Roeder I hinged on the distinction between subject

matter jurisdiction and private rights of action.                                         As discussed

in Section I supra, § 1605A(a)(2)(B) is nearly identical to the

language of former § 626(c), which was central to the Court’s

analysis in Roeder I.                                          This Court found that while § 626(c) did

create subject matter jurisdiction for the Court to hear

plaintiffs’ claims, it did not abrogate the Algiers Accords

because it did not create a cause of action for plaintiffs


                                                            
3
  Section § 1605A(c) is aptly entitled “Private Right of Action.”
See 28 U.S.C. § 1605A(c). Unlike the jurisdictional portion of
the statute, § 1605A(c) contains no reference to Roeder I, nor
does it refer to or incorporate the jurisdictional subsection
where Roeder I is mentioned. Id. Rather, § 1605A(c)
specifically creates a cause of action with respect to a foreign
state “that is or was a state sponsor of terrorism as described
in [] § [1605A](a)(2)(A)(i).” Id. It is noteworthy that
Congress chose to explicitly incorporate another jurisdictional
provision of the statute – § 1605A(a)(2)(A)(i) - into the
section governing private rights of action, but omitted
§ (a)(2)(B), the jurisdictional provision which references
Roeder I. Clearly, had Congress intended to include § (a)(2)(B)
in the section governing private rights of action, it could have
done so. 
                                                                       19
against Iran.   See Roeder I, 195 F. Supp. 2d at 172.    The D.C.

Circuit explicitly affirmed this point, holding that § 626(c)

spoke “only to the antecedent question of Iran’s immunity from

suit in United States courts.” 333 F.3d at 236.

     Despite this Circuit’s explicit holdings that § 626(c) was

not sufficient to create a private right of action for the

hostages to sue Iran, Congress chose to cut and paste the same,

insufficient language from § 626(c) in the NDAA, and to place it

in the jurisdictional section of the legislation only, not the

section entitled “Private Right of Action.”   As plaintiffs

themselves point out, courts normally assume that “when Congress

enacts statutes, it is aware of relevant judicial precedent.”

Pls.’ Notice of Supp. Auth. at 1, (quoting Merck & Co. v.

Reynolds, 130 S. Ct. 1784, 1795 (2010)); see also, Pls.’ Opp’n

at 1, 6, 7, n.6, 9 (citing, e.g., Boumediene v. Bush, 553 U.S.

723, 738 (2008)).   Given the history and precedent regarding the

crucial distinction between creation of subject matter

jurisdiction and creation of a cause of action as regards these

very plaintiffs, “the reasons for making this assumption are

particularly strong here.”    Merck, 130 S. Ct. at 1795-96.

     Plaintiffs make several additional arguments in support of

their claim that § 1605A(a)(2)(B) unambiguously creates a cause

of action against Iran.   For the reasons discussed below, their

arguments are unpersuasive.

                                 20
     First, plaintiffs assert broadly that “Congress’s action in

enacting § 1083 of the NDAA is entirely inexplicable other than

as intended to permit plaintiffs to sue Iran and thereby to

abrogate any bar to the claim under the Algiers Accords.”     Pls.’

Opp’n at 4, see also 10.   This argument is plainly without

merit.   As the government correctly notes, § 1083 is a statute

of general applicability intended to permit U.S. nationals to

sue many state sponsors of terrorism in U.S. courts, and is

directly relevant to various cases that were pending against

Iran, Cuba, and Libya, among other nations, when it was passed.

Gov’t Reply at 6.   As noted by the D.C. Circuit and by another

judge on this Court, § 1083 “is more comprehensive and more

favorable to [terrorism plaintiffs generally] because it adds a

broad array of substantive rights and remedies that simply were

not available in actions under § 1605(a)(7).”     In re Islamic

Republic of Iran Terrorism Litig., 659 F. Supp. 2d at 58; see

also Simon et al. v. Republic of Iraq, 529 F.3d 1187, 1190 (D.C.

Cir. 2008), rev’d on other grounds, 129 S.Ct. 2183 (2009)

(explaining NDAA’s advantages to terrorism plaintiffs generally,

including limiting foreign states’ appeal rights, permitting

plaintiffs to attach property in advance of judgment, and

providing for punitive damages).     Plaintiffs’ argument that

§ 1083 is inexplicable and pointless because it does not enable




                                21
them to sue Iran for the 1979 hostage taking is simply not

persuasive.


        Second, plaintiffs argue that § 1605A’s “identification of

plaintiffs would be utterly without purpose” because a conferral

of subject matter jurisdiction without creation of a private

right of action would be meaningless, effectively leaving

plaintiffs in the same position they were after the enactment of

§ 626(c).    Pls.’ Opp’n at 2.   However, plaintiffs fail to

acknowledge that the D.C. Circuit considered and rejected the

identical argument in Roeder I.     There, the Circuit held that

§ 626(c)’s conferral of subject matter jurisdiction was not “a

futile thing” because it gave plaintiffs the opportunity to

argue issues of substantive law, even if they did not ultimately

prevail on those issues.    333 F.3d at 238.   The same holds true

here.    Section 1083 of the NDAA repeals §§ 1605(a)(7) and 626(c)

and replaces them with a new statute – § 1605A.     See, e.g., In

re: Iran Terrorism Litig., 659 F. Supp. 2d at 58.     In choosing

to include the repealed language of § 626(c) in the new statute,

Congress affirmed its intent to remove Iran’s sovereign immunity

with respect to plaintiffs, and to permit the courts to continue

to grapple with these issues on their merits.    This does not

mean, however, that Congress created a private right of action

for the plaintiffs.



                                  22
     In a related argument, plaintiffs maintain that

§ 1605A(a)(2)(B) was a direct response to Roeder I, and, citing

Boumediene v. Bush, they admonish this Court to respect the

“ongoing dialogue between and among the branches of Government.”

Pls.’ Opp’n at 6, 9 (quoting Boumediene, 553 U.S. at 738).

Plaintiffs offer no support for this argument.    Moreover, they

fail to acknowledge the fact that (i) five years passed between

Roeder I and the NDAA; and (ii) during those five years

legislators tried - and failed - to pass legislation that would

have responded to Roeder I by expressly abrogating the Algiers

Accords.   See Section I.B supra.    Moreover, even if the NDAA was

intended as a direct response to Roeder I, it does not mean that

it would be an effective one:   Congress directly responded to

Roeder I by passing section 626(c) while the litigation was

ongoing, and both this Court and the D.C. Circuit found that

response was insufficient to abrogate the Algiers Accords and

change the outcome of the litigation.

     Turning to the text of the statute, plaintiffs argue that

the opening phrase of § 1605A(a)(2) “[t]he Court shall hear a

claim under this section if --” means that Congress

unambiguously created a cause of action for plaintiffs.    Pls.’

Opp’n 7-12. However, plaintiffs do not address the arguments set

forth above that the text and structure of the statute as a

whole clearly separate jurisdictional prerequisites from the

                                23
elements of a private right of action.   See, e.g., U.S. Nat’l

Bank of Oregon, 508 U.S. at 455; King v. St. Vincent's Hosp. 502

U.S. 215, 221 (1991) (enunciating the “cardinal rule that a

statute is to be read as a whole, since the meaning of statutory

language, plain or not, depends on context.   Words are not

pebbles in alien juxtaposition; they have only a communal

existence; and not only does the meaning of each interpenetrate

the other, but all in their aggregate take their purport from

the setting in which they are used. . . .”) (internal citations

and quotations omitted).   Plaintiffs rely on a number of

attorneys’ fees cases for the proposition that the phrase “under

this section” unambiguously creates a cause of action.   Pls.’

Opp’n at 7-8 (citing Ardestani v. INS, 502 U.S. 129, 134 (1991);

Blackman v. Dist. of Columbia, 456 F.3d 167, 176-77 (D.C. Cir.

2006); St. Louis Fuel and Supply Co., Inc. v. F.E.R.C., 890 F.2d

446 (D.C. Cir. 1989)).   These cases are inapposite.   The

existence of a cause of action was not questioned in any of the

cases plaintiffs cite; the parties had litigated the merits of

the underlying cause of action, and the only question was

whether fees should be awarded “under” the underlying statutes.

Id.   Even if these cases could be interpreted to argue that the

ubiquitous phrase “under this section” connotes a substantive

cause of action in some circumstances, they in no way support

plaintiffs’ claim that the  language unambiguously requires such a

                                24
conclusion.                                                    

     For the foregoing reasons, the Court finds that

§ 1605A(a)(2)(B) does not unambiguously create a cause of action

for plaintiffs to sue Iran, nor does it contain clear

Congressional intent to abrogate the Algiers Accords.


     C.     Sections 1605A(c) and 1083(c)(3) Together do not
            Unambiguously Create a Cause of Action for Plaintiffs. 

     The second question at issue is whether § 1605A(c), which

undoubtedly creates a cause of action for certain victims of

terrorism, includes plaintiffs in its purview.         After careful

consideration, the Court finds that the dispositive legal issue

presented is precisely the same as in Roeder I.         Once again,

“[t]his Court is faced with an arguably ambiguous statutory

scheme, one interpretation of which provides a cause of action

[for plaintiffs] against Iran and conflicts with the Algiers

Accords.   This Court may therefore allow plaintiffs to proceed .

. . only if Congress has adequately expressed the requisite

clear intent to abrogate the Algiers Accords.”         195 F. Supp. 2d

at 171.    And once again, this Court finds that the text of the

statutory provisions do not “contain the type of express

statutory mandate sufficient to abrogate an international

executive agreement,” nor does the legislative history contain

“clear statements of Congressional intent to specifically

abrogate the Algiers Accords.”       Id. at 177.   Accordingly, this


                                     25
Court is unable to find that the executive or the legislative

branch has acted clearly and decisively to enable the Court to

grant plaintiffs the relief they seek.

     Section 1605A(c) creates a new cause of action in certain

instances as follows:

          (c) PRIVATE RIGHT OF ACTION: A foreign state that is
          or was a state sponsor of terrorism as described in
          subsection (a)(2)(A)(i) [of section 1605A] . . . shall
          be liable to . . . a national of the United States . .
          . for personal injury or death caused by acts
          described in subsection (a)(1) [of section 1605A] of
          that foreign state . . . for which the courts of the
          United States may maintain jurisdiction under this
          section for money damages. 

Subsection (a)(2)(A)(i) contains two subsections; only one,

(a)(2)(A)(i)(II) applies to this litigation.   Subsection

(a)(2)(A)(i)(II) defines a foreign state as a state sponsor of

terrorism if:

          (II) [I]n the case of an action that is refiled under
          this section [1605A] by reason of section
          1083(c)(2)(A) of the National Defense Appropriations
          Act for Fiscal Year 2008 or is filed under this
          section by reason of section 1083(c)(3), 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 . . . 

(emphasis added).   The parties agree that Roeder II was not

filed “by reason of 1083(c)(2)(A)”; therefore only § 1083(c)(3)

applies in this case.   Section 1083(c)(3) reads:




                                26
          (c) APPLICATION TO PENDING CASES.


                [. . .]

          (3)   RELATED ACTIONS.--If an action arising out of an
                act or incident has been timely commenced under
                section 1605(a)(7) of title 28, United States
                Code . . . any other action arising out of the
                same act or incident may be brought under section
                1605A of title 28, United States Code [this
                section], if the action is commenced not later
                than the latter of 60 days after—

                (A) the date of the entry of judgment in the
                original action; or

                (B) the date of the enactment of this Act [Jan.
                28, 2008].

Accordingly, plaintiffs possess a private right of action under

§ 1605A(c) if and only if Roeder I qualifies as a “related

action” under § 1083(c)(3).

     Plaintiffs argue that Roeder I unambiguously qualifies as a

related action under § 1083(c)(3).   The government counters that

it is at least equally plausible to interpret the statute’s

“related action” provision to require that Roeder I have been

pending when the NDAA was enacted.   Because Roeder I was not

pending, the government argues, plaintiffs cannot meet their

burden to show § 1083(c)(3) unambiguously provides them with a

cause of action against Iran.   Gov’t Mem. 14.   The Court agrees

with the government that the statute is ambiguous as to what

constitutes a “related action” under § 1083(c)(3), and for the



                                27
reasons that follow, holds that Congress did not create an

unambiguous cause of action for these plaintiffs.

              i.             The Government’s Claims

              Beginning with the proposition that “the statute is

anything but a model of clarity,” the government argues that the

structure and text of § 1083(c) suggest that Roeder I cannot be

considered a “related action” under § 1083(c)(3).                                Gov’t Mem.

14.           The government first considers the heading of § 1083(c):

“Application to Pending Cases.”                                 Section 1083(c)(3) is a subset

of the “Pending Cases” section; thus, to be considered a

“related case” under § 1083(c)(3), the original action (to which

the new case is being related) must have been “pending” as of

“the date of the enactment of this Act [the NDAA] [Jan. 28,

2008].”                   28 U.S.C. § 1083(c)(3)(B).4               Roeder I was dismissed in

2003, therefore, it was not pending in 2008 and cannot be

considered a “related action” to Roeder II.

              The government also relies on the statute’s use of the past

perfect tense to describe original actions to which new cases

may be considered related under § 1083(c)(3).                                The statute

provides that new cases may be considered related to older

                                                            
4
  Plaintiffs do not argue that Roeder II may be brought under
§ 1083(c)(3)(A); that would require that Roeder II have been
commenced within 60 days of the date of judgment in the original
action – Roeder I. Roeder II was not filed until approximately
five years after the D.C. Circuit’s decision dismissing Roeder
I. Section 1083(c)(3)(A) is therefore inapposite.
                                                               28
actions, “[i]f [the original] action arising out of an act or

incident has been timely commenced.”    § 1083(c)(3) (emphasis

added).   The government argues that the use of “has been”

supports the interpretation that “a new action cannot be deemed

‘related’ unless the original action (Roeder I) was pending”

when § 1083 was enacted.   Gov’t Mem. at 17.   The government

claims the D.C. Circuit endorsed this reading of the statute in

Simon v. Republic of Iraq.    In Simon, the D.C. Circuit

considered the meaning of § 1083(c)(3) but did not directly

address the question presented here.   The Simon court

interpreted the NDAA to permit “a pending original action [to]

be[] refiled . . . by reason of section 1083(c)(2)(A)” while

separately allowing   “a new action [to] be[] filed . . . by

reason of section 1083(c)(3) if a pending related action had

been timely commenced.”    529 F.3d at 1193 (citations omitted).

The Court went on to state:


      [This] implies the Congress understood that the courts
      would retain jurisdiction over the original “related
      action” described in § 1083(c)(3). That explains why
      the 60-day period for invoking § 1083(c)(2) began with
      the enactment of the NDAA, whereas the 60-day period
      in § 1083(c)(3) may run from the date of the “entry of
      judgment” in the “related action,” which could be well
      after the enactment of the NDAA.

Id.   According to the government, this language suggests that

the Simon court read § 1083(c)(3) to signify that a new action



                                 29
could only be filed if a related action had been timely

commenced and was still pending.

     Given these doubts regarding the proper interpretation of

the statute, the government argues that it would be improper to

interpret the statute as abrogating a binding international

executive agreement, particularly in light of the absence of any

legislative history relating to Roeder I or the Algiers Accords.

Gov’t Reply at 15-17.   The government also notes that Congress

is capable of drafting straightforward legislation explicitly

abrogating the Algiers Accords, and cites as examples (1) the

2001 legislation, § 626(c), which clearly and unequivocally

conferred jurisdiction over this action; and (2) bills such as

those which have been introduced but not passed over the years

and which, by their terms, abrogate the Algiers Accords.    See

CONGRESSIONAL RESEARCH SERV., SUITS AGAINST TERRORIST STATES BY

VICTIMS OF TERRORISM (2008) at CRS 31-32.   The fact that

Congress has not acted clearly or decisively here means

plaintiffs’ claim must be dismissed.   Gov’t Mem. 17-18.

     ii.   Plaintiffs’ Claims

     Plaintiffs advance a number of arguments why § 1605A(c) and

§ 1083(c)(3) should be construed to provide plaintiffs with a

cause of action against Iran.   As set forth below, although the

Court finds plaintiffs’ interpretations plausible, the

government’s interpretations are as well.   And as set forth

                                30
above, the Court may not rely on plausibility to abrogate a

binding international agreement; unless the statute

unambiguously conflicts with the Algiers Accords, the Court must

interpret the statute to avoid the conflict.                                       Accordingly, the

Court cannot find that the 2008 legislation permits plaintiffs

to sue Iran.

              Plaintiffs first argue that a comparison of § 1083(c)(2)

and § 1083(c)(3) compel the conclusion that Roeder I is a

“related” action under § 1083(c)(3).5                                       Plaintiffs note that the

                                                            
5
      The parties agree that § 1083(c)(2) does not apply to this
case. However, because the plaintiffs rely on it for the
purposes of comparison to § 1083(c)(3), it is set forth here in
relevant part:

              (2) PRIOR ACTIONS.

                             (A) In general. - With respect to any action that -

                                            (i)           was brought under section 1605(a)(7) of
                                                          title 28, United States Code . . . before
                                                          the date of the enactment of this Act [Jan.
                                                          28, 2008],

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

                                            (iii) has been adversely affected on the grounds
                                                 that . . . [§ 1605(a)(7)] fail[s] to create
                                                 a cause of action against the state, and

                                            (iv) as of such date of enactment [Jan. 28,
                                                 2008], is before the courts in any form,
                                                 including on appeal or motion under rule
                                                 60(b) of the Federal Rules of Civil
                                                 Procedure,

                                                                     31
text of § 1083(c)(2) explicitly governs actions which were

“pending before the Courts in any form, including on appeal or

motion under Rule 60(b).”                                                     Section 1083(c)(3), however, does not

include the same, explicit language that a “related action” be

“pending before the courts” on the date of the enactment of the

NDAA.                  Plaintiffs claim that “the presence of a pending-action

limitation in the text of § 1083(c)(2), and its absence in §

1083 (c)(3), makes clear that § 1083(c)(3) is not limited to

actions relating to pending actions.”                                                                            Pls.’ Opp’n 20 (citing

Russello v. United States, 464 U.S. 16, 23 (1983) (“where

Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.”)).


                                                                                                                                                                                               
                                                                                                                                                                                               

                             that action, and any judgment in the action shall, on
                             motion made by plaintiffs to the United States
                             district court where the action was initially brought,
                             or judgment in the action was initially entered, be
                             given effect as if the action had originally been
                             filed under section 1605A(c) of title 28, United
                             States Code.

                             (B)           Defenses waived. - The defenses of res judicata,
                                           collateral estoppel, and limitation period are
                                           waived--

                                                          (i) in any action with respect to which a
                                                          motion is made under subparagraph (A) . . .                                                                                              

 

                                                                                            32
     After careful consideration, the Court concludes that the

general presumption articulated in Russello should not govern in

this case.   As the Supreme Court has made clear, “[t]he Russello

presumption – that the presence of a phrase in one provision and

its absence in another reveals Congress’ design – grows weaker

with each difference in the formulation of the provisions under

inspection.”    City of Columbus v. Ours Garage and Wrecker

Service, Inc., 536 U.S. 424, 435-436 (2002)); see also Clay v.

U.S., 537 U.S. 522, 532 (2003) (same); Field v. Mans, 516 U.S.

59, 67 (1995) (declining to “elevate[] [the Russello

presumption] to the level of an interpretive trump card”).

     Reading § 1083(c)(2) and § 1083(c)(3) as integrated parts

of a whole, it is clear that the two subsections serve distinct

purposes.    Section (c)(2) does not authorize the filing of new

cases.   Rather, it permits plaintiffs in older cases to reframe

those same actions under § 1605A so long as they are still

before the courts in some form, and expressly waives the

defenses of statute of limitations, res judicata, and collateral

estoppel.    Section 1083(c)(3), on the other hand, permits

“related actions” to be filed, even if they are wholly new, as

long as they relate to timely filed cases because they “arise

out of the same act or event” as the first-filed case.   Stated

another way, § 1083(c)(2) governs circumstances in which

already-filed cases may change course, mid-stream, to proceed

                                 33
under § 1605A, while § 1083(c)(3) governs circumstances in which

entirely new actions may be filed as a result of the new

legislation, even if such actions would otherwise be untimely.6

In keeping with the distinctly different purposes of the two

sections, § 1083(c)(3) borrows no probative language from §

1083(c)(2).                           To the contrary, the language, text and structure

of the two sections have little to nothing in common.                          In short,

the purpose and the language of § 1083(c)(2) are clearly

distinguished from the purpose and the language of § 1083(c)(3).

Therefore, the Court cannot conclude that the presence of the

phrase “pending before the Courts in any form” in § (c)(2) but

not § (c)(3) means that § (c)(3) unambiguously permits

plaintiffs to file a new action five years after the action to

which it was related ceased to exist before the courts.

              Plaintiffs next argue that the government’s reading of

§ 1083(c) would render § (c)(3)(B) superfluous of § (c)(3)(A).


                                                            
6
  In this regard, the Court notes that the underlying
circumstances of the two Roeder cases may have more in common
with § 1083(c)(2) than with § 1083(c)(3). The Roeder II
complaint is substantially identical to the Roeder I complaint;
the only substantive difference is the statutory section under
which plaintiffs allege a cause of action. Compare Roeder I,
Doc. No. 3, First Am. Compl. (relying on former § 1605(a)(7) for
cause of action), with Roeder II, Doc. No. 1, Complaint (relying
on § 1605A for cause of action). Accordingly, it could be
argued that the Roeder II plaintiffs are effectively refiling
the same action, and are citing § 1083(c)(3) in an attempt to
avoid the otherwise-fatal restrictions of § 1083(c)(2).
                                                               34
Section 1083(c)(3) provides that a related action is timely

filed:

             if the action is commenced not later than the latter
             of 60 days after

             (A) the date of entry of judgment in the original
             action; or

             (B) the date of enactment of this Act.

Plaintiffs claim that if the Court accepts the government’s

argument that all original cases had to be “pending” when the

NDAA was enacted, “then there would be no need to include clause

(B).   Rather, the timeliness of filing test would always run

from entry of final judgment in the pending action, which would

necessarily be more than sixty days later than the date of the

NDAA’s enactment.”    Pls.’ Opp’n at 23.   Accordingly, plaintiffs

argue that the government’s reading of the statute cannot be

reasonable because it would require the Court to construe one of

its clauses as superfluous or void.     Id. (citing TRW Inc. v.

Andrews, 534 U.S. 19, 31 (2001)).

       Plaintiffs take too cramped a view of the term “entry of

judgment.”    § 1083(c)(3)(A).   The Federal Rules of Civil

Procedure provide multiple avenues by which a court may enter a

judgment.     See, e.g., Fed. R. Civ. P. 50, 52, 54(a), 55(b), 56,

57.    The Federal Rules of Appellate Procedure and Supreme Court

Rules also provide for entry of judgment under additional


                                  35
circumstances.   See, e.g., Fed. R. App. P. 36.; Sup. Ct. R. 41 -

44.   The Court can easily envision several scenarios where entry

of judgment in the original, related case could have been

entered far in advance of the enactment of the NDAA – for

instance, the district court could have entered judgment and the

case could still be pending on appeal, pursuant to a motion to

alter or amend under Fed. R. Civ. P. 59(e), or on a motion for

relief from judgment under Fed. R. Civ. P. 60(b).   In any of

these situations, the latter date for purposes of timely filing

the new, related action under § 1083(c)(3) would be “sixty days

after the enactment of [the NDAA]”, § 1083(c)(3)(B), thus giving

meaning and effect to both subsections.

      Finally, plaintiffs argue that the use of the present

perfect tense in § 1083(c)(3) – “[i]f an action arising out of

an act or incident has been timely commenced” - does not

indicate that a new action cannot be deemed “related” unless the

original action (Roeder I) was pending at the time § 1083 was

enacted.   Pls.’ Opp’n 28.   Plaintiffs cite Barrett v. United

States, 423 U.S. 212 (1976) for the proposition that “has been”

denotes an action that has been completed.    In Barrett, the

Court found that the term “has been shipped” encompassed items

that had been shipped and completed their journey in interstate

commerce as well as those items that were still in the process

of being shipped.   Thus, plaintiffs argue, the phrase “has been

                                 36
timely commenced” must include not only actions that were still

pending when the NDAA was enacted, but also actions such as

Roeder I, which were completed at that time.         Pls.’ Opp’n at 28-

29.   The United States counters that Barrett does not change the

analysis.    Gov’t Reply at 12, n.9.      The government argues that

even if the present perfect tense connotes an act that has been

completed, the phrase in § 1083(c)(3) “has been commenced” would

simply mean that commencement, or filing of the action, has been

completed.    Id.   It does not compel the conclusion that the

entire case can be completed and a related action may still be

filed under § 1083(c)(3).     Id.

      The Court finds that the phrase “has been commenced” does

not resolve the textual ambiguity in the statute.        The phrase

may be reasonably read to limit § 1083(c)(3)’s reach to cases

related to those which were timely filed and are still pending,

as the government argues, or to encompass cases related to any

and all cases that were timely filed in the first instance,

regardless of whether they were still pending when the NDAA

became law, as plaintiffs argue.         However, the Court need not

resolve these questions here: plaintiffs cannot prevail unless

they can show that theirs is the only reasonable reading of the

statute.    For the reasons set forth above, they cannot.




                                    37
     D.     The Record is Devoid of Any Clear Evidence of
            Congressional Intent to Abrogate the Algiers Accords.

     Because the NDAA is ambiguous, “this Court must not

interpret [it] to conflict with the Algiers Accords absent a

clear intent to abrogate that agreement by Congress.”       Roeder I,

195 F. Supp. 2d at 175.   As set forth above,

     [L]egislative silence is not sufficient to [find clear
     intent to] abrogate a treaty or a bilateral executive
     international agreement. When a later [ambiguous] statute
     conflicts with an earlier agreement, and Congress has
     neither mentioned the agreement in the text of the statute
     nor in the legislative history of the statute, the Supreme
     Court has conclusively held that it can not find the
     requisite Congressional intent to abrogate.

Id. (internal quotations and citations omitted.)    It is

undisputed that the Algiers Accords is neither mentioned in the

statute, nor discussed or even alluded to in the legislative

history.   Nevertheless, plaintiffs contend that even if the

statute does not unambiguously create a cause of action for them

to sue Iran, the Court should find that the legislative history

provides clear congressional intent to abrogate the Algiers

Accords.    See Pls.’ Opp’n 17-18 (“Section 1083 was not

overlooked by Congress or the President.”)   In support of this

statement, they note that the NDAA’s language regarding Roeder I

survived a presidential veto and subsequent negotiations over

§ 1083.    They claim that “the intense attention the political

branches directed to this very section,” demonstrates that the


                                 38
other two branches of government clearly intended § 1083 must

abrogate the Algiers Accords.   Pls.’ Opp’n 18.

     This argument is easily resolved.   A review of the

legislative history reveals that none of the attention focused

on § 1083 had anything to do with the provisions at issue in

this litigation.   The D.C. Circuit accurately summarized the

history of the NDAA’s passage as follows:   “President Bush

sought to ‘pocket veto’ the bill because he believed § 1083

would threaten the reconstruction of Iraq. . . . Congress

subsequently passed a revised version of the NDAA, which

included a new provision (§ 1083(d)) that authorized the

President, upon making certain findings, to ‘waive any provision

of [§ 1083 of the NDAA] with respect to Iraq.     The President

signed that bill into law.’” Simon, 529 F.3d at 1190 (citations

omitted).   The legislative history adds nothing to support

plaintiffs’ argument.   To the contrary, as the government

correctly notes, “the fact that the political branches gave

Section 1083 this allegedly ‘intense attention’, without once

even mentioning the Algiers Accords or the 1979 Iranian hostage

taking, is compelling evidence that Congress did not intend to

repeal the Accords or to offer the Roeder I plaintiffs a cause

of action, and that the President did not interpret the NDAA to

include an abrogation of the Accords.”   Gov’t Reply at 15




                                39
(quoting Pls.’ Opp’n at 18) (emphasis in original).       The Court

concurs.

     As this Court found in Roeder I, “[a]n explicit expression

of intent to abrogate a binding international agreement

requires, at a minimum, an acknowledgment of the existence of

that agreement[.]”     Roeder I, 195 F. Supp. 2d at 182.    In Roeder

I, this Court was faced with legislative history which directly

referenced that case and alluded to the Algiers Accords.

Nevertheless, the D.C. Circuit held that because the relevant

legislative history was contained in a “joint explanatory

statement,” a form of committee report which is never subject to

a Congressional vote, it was insufficient to abrogate the

Algiers Accords.     See Roeder I, 333 F.3d at 236-238.    In Roeder

II, plaintiffs’ arguments for clear Congressional intent are

even weaker than Roeder I; the legislative history of the NDAA

is utterly silent with respect to either the Algiers Accords or

this case.    Accordingly, the Court finds no clear Congressional

intent to abrogate the executive agreement.


     E.      Chief Judge Royce C. Lamberth’s Opinion Does Not Alter
             This Court’s Analysis.

     Finally, the Court turns to plaintiffs’ argument that Chief

Judge Lamberth’s opinion in In re Islamic Republic of Iran

Terrorism Litigation, 659 F. Supp. 2d 31 (D.D.C. 2009), brought

to the Court’s attention by plaintiffs as supplemental

                                  40
authority, should guide this Court’s analysis and conclusions.

The Court gave the parties the opportunity to fully brief the

import of the opinion and, after careful consideration of the

opinion and the parties’ arguments, concludes that the

supplemental authority does not alter this Court’s analysis.

     Plaintiffs principally rely on In re Iran Terrorism

Litigation for its conclusion that § 1083(c)(3) allows terrorism

victims to file “related cases” within 60 days after the NDAA’s

enactment, even if the original case to which the new case

relates was no longer pending.   Specifically, plaintiffs point

to that court’s determination that “the heading of § 1083(c) –

‘Application to Pending Cases’ - is something of a misnomer

because, in reality, § 1083(c) may encompass cases that are not

pending at all - meaning prior actions that have since reached

final judgment and are no longer before the courts in any form.”

Id. at 63.   Plaintiffs argue that Chief Judge Lamberth’s

interpretation of § 1083(c)(3), which comports with plaintiffs’

interpretation, “makes clear that the current opposition is

without any statutory basis.”    Pls.’ Supp. Auth. Mem. at 10.

     The Court is unpersuaded by the plaintiffs’ selective

reading of In re Iran Terrorism Litigation.    While the cases

addressed in that opinion all name the Islamic Republic of Iran

as a state sponsor of terrorism, none of the cases arises out of

the 1979 hostage taking and consequently none of them is

                                 41
governed by the Algiers Accords.     Notwithstanding any

conclusions Chief Judge Lamberth may have reached regarding the

meaning of § 1083(c)(3), he - correctly - went to great pains to

distinguish the cases before him from the case before this

Court.   As set forth above, Chief Judge Lamberth found that new

“related actions” could be filed against Iran arising out of the

same acts or incidents as had been originally litigated before

him, even if the original actions were no longer pending when

the NDAA was enacted.   However, he explained that the standard

the Roeder plaintiffs must meet in order to sue Iran is

different.

     Congress [must have] clearly expressed its intent to
     abrogate the Algiers Accords, as is required before
     Courts will hold that an international agreement is
     abrogated by a subsequent act of Congress. . . . Judge
     Sullivan [] went to some length in his [Roeder I]
     opinion to explain that, while our Court cannot ignore
     or refuse to give effect to the Algiers Accords, both
     Congress and the President have the authority to
     abrogate them, if they so desire. The opinion could
     not have been any clearer on that point. To date,
     however, neither branch has taken such action; the
     political consequences are likely too great, but that
     is precisely why it is a decision best left to the
     political branches, and not the Courts.

659 F. Supp. 2d at 88-89 (internal quotations and citations

omitted) (emphasis added).   In short, the In re Iran Terrorism

Litigation court recognized that while the NDAA granted

significant new rights and privileges to terrorism victims in


                                42
general, the 1979 hostage victims do not fall under the category

of terrorism victims in general.     The opinion also recognized

that absent clear abrogation of the Algiers Accords, which the

NDAA did not accomplish, the plaintiffs are in the same position

now as they were prior to the enactment of the NDAA.     Id. at 89-

90.   Plaintiffs’ supplemental authority does not change this

Court’s analysis; it reinforces it.

      As discussed in Section III.C. supra, this Court does not

necessarily disagree with Chief Judge Lamberth that § 1083(c)(3)

could support the reading urged by plaintiffs.    However, as set

forth throughout, the language of the statute does not

unambiguously require such a conclusion with respect to the 1979

hostage victims, and thus does not abrogate the Algiers Accords.

IV.   CONCLUSION

      In this case, as in Roeder I, much time and effort have

been expended parsing esoteric phrases of statutory text and

legislative history in an effort to discern the intent of

Congress.   As in Roeder I, this Court is acutely sensitive to

the indescribable horror of plaintiffs’ suffering.     See Roeder

I, 195 F. Supp. 2d at 145 (“Were this Court empowered to judge

by its sense of justice, the heart-breaking accounts of the

emotional and physical toll of those 444 days on plaintiffs

would be more than sufficient justification for granting all the

relief that they request.”)   The principles that guided the

                                43
Court’s decision in Roeder I, however, are fundamental to our

system of government and the fair administration of justice.

They are equally binding on this Court now, and they bear

repeating.


     Lest this Court’s decision be viewed as denying
     plaintiffs a remedy for the horrible wrongs they have
     suffered simply because Congress failed to use the
     proper choice of words, it is important to reiterate
     the values that are served by an abrogation doctrine
     that requires Congress to make its intent clear. The
     spheres of power of our co-equal branches of
     government can at times overlap. When such overlap
     occurs, and the wills of two branches are in conflict,
     the Constitution sets forth the rules for deciding
     which branch gets to trump the will of the other. In
     this case, by virtue of his power to direct the
     foreign affairs of this country, the President clearly
     has the authority to enter into international
     agreements. Congress, however, clearly has the
     corresponding right to abrogate the agreement reached
     by the President if it so wishes. Because of the
     respect owed to each co-equal branch of government,
     the courts must require that Congress make its intent
     clear, either by legislating unambiguously or
     accompanying ambiguous statutes with clear expressions
     of intent. Any other rule would allow the courts, by
     inference and interpretation, to impermissibly assume
     the legislative role.

Roeder I, 195 F. Supp. 2d at 183 (internal citation omitted).

As discussed throughout this opinion, Congress has failed to

enact plain, straightforward language creating a cause of action

for plaintiffs; nor has Congress clearly expressed its intent to

abrogate the Algiers Accords.   Regrettably, this Court must

conclude as a matter of law that the plaintiffs cannot pursue a




                                44
lawsuit for damages for the human suffering and atrocities

inflicted upon them by the Islamic Republic of Iran.

     For the foregoing reasons, it is hereby ORDERED that the

United States’ motion to dismiss is GRANTED as plaintiffs have

failed to state a claim upon which this Court can grant relief.

Plaintiffs’ motion for default judgment as to liability is

DENIED as moot.   This case is therefore DISMISSED.    An

appropriate Order accompanies this memorandum opinion.


SIGNED:   Emmet G. Sullivan
          United States District Court Judge
          September 30, 2010

 




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