Pending Cert. Petition: No. 04-820, Acree v. Iraq

By Amy Howe
on Apr 21, 2005 at 11:22 am

One of the petitions to be considered at the Court’s conference tomorrow is No. 04-820, Acree v. Iraq, which presents the questions whether U.S. citizens who have been tortured by a state sponsor of terrorism have causes of action (a) under either federal or state law; and (b) for a violation of universally accepted international norms against torture.

It is difficult to imagine plaintiffs more sympathetic than the Acree petitioners: seventeen current and former U.S. military personnel who were held as prisoners of war during the 1991 Gulf war, along with thirty-seven of their family members. While in captivity, the POW petitioners were subjected to brutal torture that included (but was not limited to) starvation, electric shock treatment, mock executions, threatened castration and dismemberment, burns, and whipping. In 2002, the POWs and their families filed a suit against Iraq, its intelligence service, and Saddam Hussein in the U.S. District Court for the District of Columbia seeking damages for their treatment and the pain and suffering of their families. Their causes of action included common law torts, made applicable to foreign sovereigns through the Foreign Sovereign Immunities Act (FSIA); Section 1605(a)(7) of the FSIA, which abrogates foreign sovereign immunity in cases seeking money damages for personal injury or death caused by torture; and the Flatow Amendment, which provides that “an official . . . of a foreign state designated as a state sponsor of terrorism . . . shall be liable to” U.S. citizens for injuries caused by acts for which U.S. courts may maintain jurisdiction under Section 1605(a)(7).

After the Iraqi defendants failed to contest the suit, the district court entered a $959 million default judgment against them in July 2003. Two weeks later, however, the U.S. government filed motions to intervene in the case and to vacate the judgment, alleging that the Emergency Wartime Supplemental Appropriations Act of 2003 (EWSAA) stripped the courts of jurisdiction to hear the POWs’ case. The district court rejected both motions, and the U.S. appealed. Acknowledging that it was confronted with a “close question of statutory interpretation,” the D.C. Circuit agreed with the district court and petitioners that the EWSAA did not prohibit petitioners’ case. It nonetheless dismissed the case on a ground not raised by the United States, holding that petitioners had failed to state a cause of action. Specifically, following its 2004 decision in Cicippio-Puleo v. Islamic Republic of Iran, the D.C. Circuit held first that – notwithstanding that the Flatow Amendment provides a cause of action against officials “acting within the scope of his or her office, employment, or agency” – the Flatow Amendment applies only to officials who are acting in their “personal capacities.” Second – and notwithstanding that petitioners had explicitly alleged causes of action arising under state common law torts – the panel held that “generic common law cannot be the source of a federal cause of action.”

Petitioners challenge the D.C. Circuit’s holding on several grounds. First, they allege that by rejecting their reliance on state common law torts as a cause of action, the decision below conflicts with both Supreme Court precedent – including First National City Bank v. Banco Para el Comercio Exterior de Cuba and the Court’s 2004 decision in Sosa v. Alvarez-Machain – and decisions of other virtually all other circuits. Moreover, they note, Sosa “strongly suggests” that they also have an independent federal cause of action, because the conduct at issue in their case violated the well-established, widely acknowledged international prohibition of torture. Second, petitioners dispute the D.C. Circuit’s construction of the Flatow Amendment as permitting claims only against officials in their personal capacities. They rely on the language of the statute, explaining that because Congress does not generally create direct causes of action against foreign states – instead providing in the FSIA that a foreign state is liable to “the same extent as a private individual in like circumstances” – it is “the normal language that Congress would employ to create a cause of action that runs against the terrorist state under ordinary principles of respondeat superior.” Third, petitioners contend, the D.C. Circuit’s holding will effectively close the courthouse doors to all victims of state-sponsored terror because Section 1605(a)(7)’s venue provision provides for venue in the D.C. Circuit in the vast majority of cases. Finally, petitioners decry the D.C. Circuit’s decision as a “judicial foray into foreign policy” and contend that the circumstances surrounding the D.C. Circuit’s decision – including the fact that the court sua sponte raised the cause of action issue shortly before oral argument – warrant the extraordinary exercise of the Supreme Court’s supervisory powers.

In its BIO, the U.S. begins with an extensive discussion of an issue not raised by the petition (but which, as the prevailing party below, the U.S. is entitled to raise to defend the judgment): whether the EWSAA deprived the district court of jurisdiction over petitioner’s case. Emphasizing the statute’s use of the broad term “any,” the U.S. contends that the D.C. Circuit erred in construing Section 1503 of the EWSAA – which authorizes the President to “make inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism” – to apply only to “provisions that present obstacles to assistance and funding for the new Iraqi Government.” And in any event, the U.S. explains, the President has determined that the execution of judgments such as the one won by petitioners “would seriously undermine funding for the essential tasks of the new Iraqi government.” The U.S. then concludes by disputing petitioners’ arguments with regard to their questions presented.

The petitioners are represented by Stewart Baker and Matthew Yeo of Steptoe & Johnson and John Norton Moore. Their briefs, as well as those of their amici, can be found here. The U.S.’s Brief in Opposition can be found here.

[Disclosure: From 1998 until 2000, I was an associate at Steptoe & Johnson but never worked on this case, which was filed in 2002. I also kibbitzed briefly with lawyers at the Center for Terrorism Law, which filed an amicus brief in support of petitioners.]