Strange v. Islamic Republic of Iran ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHARLES STRANGE, et al,
Plaintiffs,
v. Civil Action No. 14-435 (CKK)
ISLAMIC REPUBLIC OF IRAN, et al,
Defendants.
MEMORANDUM OPINION
(August 7, 2018)
Plaintiffs 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.
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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, 294 F.3d 82, 87 (D.C. Cir. 2002). Pursuant to the
FSIA, the Court has “original jurisdiction” over “nonjury civil action[s]” against foreign states
“without regard to amount in controversy” if the claims seek “relief in personam with respect to
which the foreign state is not entitled to immunity either under sections 1605–1607 of this title or
under any applicable international agreement.” 28 U.S.C. § 1330(a). “[A] foreign state is
presumptively immune from the jurisdiction of United States courts; unless a specified exception
applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.”
Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). Contrary to Plaintiffs’ contention that the
Court “should not make the arguments for terrorist Defendants,” Pls.’ Brief at 15, the Court has
an obligation to assure itself that it has subject matter jurisdiction even though Defendants have
not responded to Plaintiffs’ Complaint. “[E]ven if the foreign state does not enter an appearance
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to assert an immunity defense, a District Court still must determine that immunity is unavailable
under the [FSIA].” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493 n.20 (1983).
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.” 28 U.S.C. §
1605(a)(2). Plaintiffs have not established that this case is based upon an act that is “in
connection with” a “commercial” activity.
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.” Id. Since the signing of TIFA, Plaintiffs state, “there has been a
significant increase in trade flows” between the United States and Afghanistan. Id. “[R]egular
meetings of the TIFA Council ensure the constant development of economic agreements
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benefitting both” the United States and Afghanistan. Id. at 9. Plaintiffs recount that at a “TIFA
meeting,” the two countries issued a Joint Statement stating that they both sought to increase
investment in Afghanistan and both agreed on the importance of commercial investment laws
and regulations. Id. at 10-11. Based on the existence of TIFA, Plaintiffs argue that “[i]t cannot
be any clearer that the United States and Defendant Afghanistan are in a commercially
contractual relationship.” Id. at 11. And, Plaintiffs contend, “undoubtedly the commercial
nature of the United States’ and Afghanistan’s relationship, and the violations of those
commercial contracts, are directly felt here in the United States.” Id. at 14. “When the United
States agrees to spend $5.1 billion a year to pay for the army and police—and western donors
continue to give billions more for reconstruction and other initiatives in a private matter—the
premeditated, unprovoked attacks and murders on plaintiffs’ sons, using bullets, helicopters, and
machinery that the United States provides, is not only a nexus felt in the United States but also a
direct attack on the United States, plaintiffs’ sons, and its citizens.” Id.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., 43 F.3d
1534, 1537 (D.C. Cir. 1995) (quoting Nelson, 507 U.S. at 360 (internal quotation removed)).
“‘Put differently, a foreign state engages in commercial activity . . . only where it acts in the
manner of a private player within’ the market.’” Id. In deciding whether a state has acted like a
private player in the market as opposed to a sovereign, the Court “must examine ‘not whether the
foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely
sovereign objectives’ but ‘whether the particular actions that the foreign state performs (whatever
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the motive behind them) are the type of actions by which a private party engages in trade and
traffic or commerce.’” de Csepel v. Republic of Hungary, 714 F.3d 591, 599 (D.C. Cir. 2013)
(quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992) (emphasis in
original)).
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, 353 F.3d 1323, 1326 (11th Cir. 2003) (“activities requiring
state authority are not commercial”).
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., 292 F. Supp. 2d 9, 18
(D.D.C. 2003) (“a contract by a foreign government to buy provisions or equipment for its armed
forces or to construct a government building constitutes a commercial activity”). But these cases
are inapposite, because TIFA is not a contract for goods or services. TIFA might help foster the
growth of investment and trade which might result in contracts for goods or services being made,
but it is not itself such a contract. It is an agreement between two sovereign countries setting
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forth a mutual understanding about trade and investment. This agreement is not analogous to the
sales, leases or other contracts that courts have found to constitute “commercial activity.”
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. Id. This
argument fares no better. Afghanistan does not engage in commercial activity like a “private
player in the market” by accepting foreign aid from the United States in the form of assistance in
developing its armed forces. The commitments from the United States discussed in Plaintiffs’
brief are not, as Plaintiffs seem to suggest, “contracts” Afghanistan has entered into for the
purchase of goods or services. They are pledges from one sovereign nation to help develop the
armed forces of another. That is not the type of activity that private players engage in.
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 way 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., 305 F. Supp. 3d 149 (D.D.C. 2018) (internal quotation omitted). “[A] mere tangential or
attenuated connection between the act and the commercial activity will not suffice.” Id.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
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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.” 28 U.S.C.
§ 1605(a)(1). Plaintiffs claim that Afghanistan implicitly waived its immunity through a
provision in the 2015 Security and Defense Cooperation Agreement (“SDCA”) between
Afghanistan and the United States. That provision reads:
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
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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,
764 F.3d 31, 35 (D.C. Cir. 2014). An implied waiver in particular “depends upon the foreign
government’s having at some point indicated its amenability to suit.” Princz v. Fed. Republic of
Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994). Plaintiffs fall far short of making such an
exacting showing because the cited provision of the SDCA has nothing to do with suits brought
against Afghanistan. It only addresses claims that are brought against “United States forces.”
Because this provision of the SDCA does not even speak about claims against Afghanistan at all,
the Court certainly cannot say that it demonstrates Afghanistan’s amenability to being subjected
to suit in this country. See Odhiambo, 764 F.3d at 35 (quoting Argentine Republic v. Amerada
Hess Shipping Corp., 488 U.S. 428, 442 (1989)) (noting that the Supreme Court has explained
that “it cannot ‘see how a foreign state can waive its immunity under § 1605(a)(1) by signing an
international agreement that contains no mention of a waiver of immunity to suit in United States
courts.’”).
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
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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.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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