Strange v. Islamic Republic of Iran
Strange v. Islamic Republic of Iran
Opinion of the Court
MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, United States District Judge *95Plaintiffs in this case allege that Defendants-the Islamic Republic of Iran, Mahmoud Ahmadinejad, Ayatollah Sayyid Ali Hoseyni Khamenei, the Army of the Guardians of the Islamic Revolution, Hamid Karzai, the Afghan Operational Coordination Group ("OCG"), the Afghan Special Operations Unit ("ASOU"), the Afghan National Security Forces ("ANSF"), the Islamic Republic of Afghanistan ("Afghanistan"), the Taliban, and Al Qaeda-"purposefully, knowingly, and negligently participated in the shoot-down or suicide bombing of a mission named Extortion 17, which resulted in the death of thirty (30) U.S. servicemen." Pls.' Mem. in Support of a Default Judgment, ECF No. 110, at 2. In summary form, Plaintiffs' lawsuit alleges that the Defendants listed above conspired together to shoot down (or, alternatively, to blow up from the inside) a helicopter carrying United States service members, including Navy SEALS who had recently participated in the mission to capture and kill Osama Bin Laden. Plaintiffs claim that "these brave men died because they were set up by their supposed allies, the Afghan government and its Security Forces, financed by Iran and its leaders, as has tragically occurred hundreds of times before August 6, 2011 and many times since."Id. at 1.
At the Court's direction, Plaintiffs have submitted a brief on the exceptions that they claim apply to the sovereign immunity of Defendants Afghanistan, OCG, ASOU and ANSF (collectively, "Afghanistan" or "the Afghanistan Defendants"). See Pls.' Supp. Briefing on the Exceptions to the Afghan Defs.' Foreign Sovereign Immunity, ECF No. 84 ("Pls.' Brief").
The Court has considered Plaintiffs' submission-as well as their prior and subsequent pleadings in this case-and has determined that Plaintiffs have not established that this Court has subject matter jurisdiction over Plaintiffs' claims against the Afghanistan Defendants. Those claims only will accordingly be DISMISSED WITH PREJUDICE.
I. LEGAL STANDARD
This case implicates the Foreign Sovereign Immunities Act ("FSIA"). "The FSIA provides a basis for asserting jurisdiction over foreign nations in the United States." Price v. Socialist People's Libyan Arab Jamahiriya ,
II. DISCUSSION
Plaintiffs claim that two exceptions to the Afghanistan Defendants' immunity apply. First, they argue that the facts of this case fall under the FSIA's "commercial activity exception." Second, they argue that the Afghanistan Defendants have waived their immunity. Neither argument has merit.
A. Commercial Activity Exception
First, the commercial activity exception does not apply here. That exception, as relevant to Plaintiffs' argument, states that "[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case in which the action is based ... upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States."
Plaintiffs argument for application of the commercial activity exception can be summarized as follows: Plaintiffs contend that "Defendants Afghanistan, the OCG, ANSF, and ASOU, engage in commercial activity with the United States" because of the "United States-Afghanistan Trade Investment Framework Agreement ('TIFA')." Pls.' Brief at 8. Plaintiffs explain that TIFA has "acted as the primary forum for bilateral trade and investment discussions between the two countries."
There are two major problems with this argument. First, two nations entering into a trade and investment framework agreement is not a "commercial activity." "[A] state engages in commercial activity 'where it exercises only those powers that can also be exercised by private citizens, as distinct from those 'powers peculiar to sovereigns.' " Janini v. Kuwait Univ. ,
The TIFA is a trade and investment framework agreed to by two sovereign nations. By entering into that agreement, Afghanistan was not exercising powers that a "private player within the market" could or would exercise. Private players in the market do not enter into agreements to encourage positive relations and trade between two countries and foster positive environments in those countries for growth and investment. This is something that sovereign nations do. In fact, to enter into such an agreement inherently would require the exercise of state authority. See Beg v. Islamic Republic of Pakistan ,
Plaintiffs cite a string of cases and congressional statements in their briefing for the proposition that states act like private players in the market when they enter into contracts for goods or services, even if the purpose of entering into those contracts is a public one (for example, buying provisions for the state's armed forces or leasing vehicles for the state's mission to the United Nations). See, e.g. , Burnett v. Al Baraka Inv. & Dev. Corp. ,
Plaintiffs also argue that the commercial activity exception applies because the United States has helped develop and train the Afghan National Security Forces. Pls.' Brief at 9-12. They cite congressional reports and additional agreements between the United States and Afghanistan in which the United States has committed to providing such assistance.
Second, even accepting Plaintiffs' argument that any of the agreements or statements discussed above could be interpreted as "commercial activity" on the part of Afghanistan, there is simply no plausible *98way that this Court could say that Plaintiffs' claims in this case are based upon an act "in connection with" those commercial activities. The phrase "in connection with" as used in the commercial activity exception "demands that the acts complained of must have some substantive connection or a causal link to the commercial activity." Azima v. RAK Inv. Auth. ,
Plaintiffs make only a fleeting effort to demonstrate that a connection exists between the acts complained of in this case, a terrorist attack, and the allegedly commercial activities cited. They argue that the supposed commercial activities discussed above are connected to this case because "[t]he United States has funded the Afghanistan military, OCG, and ASOU ... and Defendants, in turn, have used those funds to ambush and kill members of the U.S. military." Pls.' Brief at 12.
This alleged connection is simply too attenuated. Plaintiffs claim that this case is about an act of terrorism. Their lawsuit is based on a terrorist attack: the shooting down (or, alternatively, blowing up from the inside) of a helicopter carrying U.S. service members. It is not about trade and investment agreements between the United States and Afghanistan, nor does the United States' general provision of support to the Afghanistan armed forces have any substantial connection or causal link with the facts at issue. Accordingly, even assuming that the activities Plaintiffs have highlighted in their pleadings could be viewed as "commercial," the commercial activity exception would still not apply because this case is not based upon an act in connection with those activities.
B. Waiver
Alternatively, Plaintiffs argue that Afghanistan has waived its immunity under the FSIA. A foreign state is not immune in any case "in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver."
United States forces authorities shall pay just and reasonable compensation in settlement of meritorious third party claims arising out of acts or omissions of members of the force and of the civilian component done in the performance of their official duties and incident to the non-combat activities of United States forces. Such claims shall be expeditiously processed and settled by United States forces authorities in accordance with the laws and regulations of the United States and seriously considering the laws, customs, and traditions of Afghanistan.
See Pls.' Brief at 4 (emphasis in original).
This provision of the SDCA simply cannot be interpreted as an implied waiver of Afghanistan's sovereign immunity. The D.C. Circuit has noted that there is an "exacting showing required for waivers of foreign sovereign immunity." Odhiambo v. Republic of Kenya ,
Plaintiffs cite several district court cases for the proposition that "by selecting arbitration or by making yourself available to the laws and regulations of another country, here the United States, [a] contracting party is viewed to have waived its immunity." Pls.' Brief at 6. This line of authority is irrelevant. Plaintiffs have not brought to the Court's attention any agreement by Afghanistan that envisions that suits against it would be adjudicated by arbitration or in United States courts. Again, the provision of the SDCA relied on by Plaintiffs does not speak at all to how claims against Afghanistan would be adjudicated.
III. CONCLUSION
In sum, Plaintiffs have not demonstrated that any exception to the Afghanistan Defendants' sovereign immunity applies. Accordingly, the Court lacks subject matter jurisdiction over claims brought against those Defendants: the Afghan Operational Coordination Group, the Afghan Special Operations Unit, the Afghan National Security Forces, and the Islamic Republic of Afghanistan. Those claims only will be DISMISSED WITH PREJUDICE. An appropriate Order accompanies this Memorandum Opinion.
Reference
- Full Case Name
- Charles STRANGE v. ISLAMIC REPUBLIC OF IRAN
- Cited By
- 4 cases
- Status
- Published