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 Title Acree v. Republic of Iraq

 Argued April 7, 2004                      Decided June 4, 2004

 Subject Legal Analysis; National Security; Federalism

                                                                                                                                                                                                                

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      United States Court of Appeals

                 FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 7, 2004                            Decided June 4, 2004

                              No. 03-5232

                  CLIFFORD ACREE, COLONEL, ET AL.,

                               APPELLEES

                                      v.

                        REPUBLIC OF IRAQ, ET AL.,

                     UNITED  STATES OF AMERICA,

                               APPELLANT

         Appeal from the United States District Court

                    for the District of Columbia

                            (No. 02cv00632)

  Gregory G. Katsas, Deputy Assistant Attorney General,

U.S. Department of Justice, argued the cause for appellant.

With him on the brief were Peter D. Keisler, Assistant

Attorney General, Roscoe C. Howard, Jr., U.S. Attorney,

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

 

                               2

Douglas N. Letter,  H. Thomas Byron, III,  Douglas Hall-

ward­Driemeier, and Lewis Yelin, Attorneys.

   Stewart A. Baker argued the cause for appellee Clifford

Acree, et al.  With him on the brief were Stephen A. Fennell,

Bennett Evan Cooper, and John Norton Moore.

   Daniel J. Popeo and Paul D. Kamenar were on the brief

for amici curiae in support of appellees.

   Before:  EDWARDS, TATEL, and ROBERTS, Circuit Judges.

   Opinion for the Court filed by Circuit Judge EDWARDS.

   Opinion concurring in part and concurring in the judgment

filed by Circuit Judge ROBERTS.

   EDWARDS,  Circuit Judge: Appellees in this case are 17

American soldiers, joined by their close family members, who

were captured and held as prisoners of war by the Iraqi

Government while serving in the Gulf War in early 1991.

Appellees brought suit in the District Court under the terror-

ism exception to the Foreign Sovereign Immunities Act

(``FSIA''), 28 U.S.C. § 1605(a)(7) (2000), against the Republic

of Iraq, the Iraqi Intelligence Service, and Saddam Hussein,

in his official capacity as President of Iraq (collectively

``Iraq''), seeking compensatory and punitive damages for the

horrific acts of torture they suffered during their captivity.

After Iraq failed to appear, the District Court examined

appellees' evidentiary submissions and entered judgment in

their favor.    The District Court awarded damages against

Iraq totaling over $959 million.     See Acree v. Republic of

Iraq, 271 F. Supp. 2d 179 (D.D.C. 2003) (``Acree I'').

   Two weeks after the District Court entered its judgment

for appellees, the United States filed a motion to intervene for

the purpose of contesting the District Court's subject matter

jurisdiction.  The United States argued that recently enacted

provisions of the Emergency Wartime Supplemental Appro-

priations Act, Pub. L. No. 108­11, § 1503, 117 Stat. 559, 579

(2003), made the terrorism exception to the FSIA inapplicable

to Iraq and thereby stripped the District Court of its jurisdic-

tion over appellees' lawsuit.  The District Court denied the

 

                                 3

United States' motion to intervene as untimely, see Acree v.

Republic of Iraq, 276 F. Supp. 2d 95 (D.D.C. 2003) (``Acree

II''), and the United States now appeals.

  We hold that the District Court abused its discretion in

finding the United States' motion to intervene to be untimely

and erred in denying that motion.  The United States pos-

sesses weighty foreign policy interests that are clearly threat-

ened by the entry of judgment for appellees in this case.

Although the United States filed its motion after the District

Court had entered its judgment, appellees have asserted no

prejudice arising from the intervention.  On the merits of the

United States' jurisdictional challenge, we hold that the Dis-

trict Court properly exercised jurisdiction in appellees' law-

suit.   Although it presents a close question of statutory

interpretation, we conclude that the disputed language in the

emergency supplemental appropriations act does not encom-

pass the terrorism exception to the FSIA.

  We nevertheless conclude that the District Court's judg-

ment in favor of appellees must be vacated and their lawsuit

dismissed for failure to state a cause of action.  The District

Court's judgment against Iraq rests solely on causes of action

purportedly arising under the terrorism exception and the

Flatow Amendment to the FSIA.           Neither appellees' com-

plaint, nor their submissions to this court, nor the District

Court's decision in their favor offers any other coherent

alternative causes of action in support of appellees' claims

against Iraq.  Our recent decision in Cicippio-Puleo v. Islam-

ic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004) (``Cicip-

pio''), makes it plain that the terrorism exception to the FSIA

is merely a jurisdictional provision and does not provide a

cause of action against foreign states.     Cicippio also holds

that the Flatow Amendment to the FSIA, which provides a

cause of action against an ``official, employee, or agent of a

foreign state,'' 28 U.S.C. § 1605 note (2000), does not afford a

cause of action against a foreign state itself.  We are there-

fore constrained to vacate the judgment of the District Court

and dismiss appellees' suit for failure to state a cause of

action.

 

                                 4

                         I.  BACKGROUND

A.  The POW Lawsuit

   The facts in this case are undisputed.  While serving in the

Gulf War following the Iraqi invasion of Kuwait, Colonel

Clifford Acree and 16 other American soldiers who are appel-

lees in this case were captured and held as prisoners of war

in Kuwait and the Republic of Iraq between January and

March 1991.  On April 4, 2002, these POWs and their close

family members filed a complaint in the District Court

against the Republic of Iraq, the Iraqi Intelligence Service,

and Saddam Hussein, in his official capacity as President of

Iraq, for personal injuries caused to them and their family

members as a result of their treatment by Iraq.           In their

complaint, the POW plaintiffs described brutal and inhumane

acts of physical and psychological torture suffered during

their captivity, including severe beatings, starvation, mock

executions, dark and unsanitary living conditions, and other

violent and shocking acts.      By these alleged atrocities, the

plaintiffs' captors created a ``climate of  humiliation and

degradation,'' in which the POWs ``liv ed  in constant fear of

death and torture.''  Compl. ¶ 5, reprinted in Joint Appendix

(``J.A.'') 35.

   Jurisdiction in the plaintiffs' lawsuit was based on the

terrorism exception to the Foreign Sovereign Immunities Act,

28 U.S.C. §  1605(a)(7).   Under the FSIA, foreign states enjoy

immunity from suit in American courts, unless that immunity

has been waived or abrogated pursuant to an exception

enumerated in the FSIA.  See 28 U.S.C. § 1604;  see also 28

U.S.C. § 1330(a) (limiting the district courts' jurisdiction over

suits against foreign states to cases in which the foreign state

is not entitled to immunity under the FSIA).               Section

1605(a)(7), added to the FSIA in 1996, creates an exception to

foreign sovereign immunity in civil suits ``in which money

damages are sought against a foreign state for personal

injury or death that was caused by an act of torture'' or other

terrorist acts.   28 U.S.C. §  1605(a)(7).   This exception applies

only if the defendant foreign state was designated as a state

sponsor of terrorism at the time the alleged acts of torture

 

                                5

occurred.  See 28 U.S.C. § 1605(a)(7)(A).  Pursuant to § 6(j)

of the Export Administration Act, 50 U.S.C. App. § 2405(j)

(1988 & Supp. I 1989), the Republic of Iraq was designated as

a state sponsor of terrorism on September 13, 1990, shortly

after the Iraqi invasion of Kuwait and before the events took

place that formed the basis of the plaintiffs' claims.  See 55

Fed. Reg. 37,793 (Sep. 13, 1990).  Iraq was therefore amena-

ble to suit in federal court under the FSIA at the time the

plaintiffs commenced their lawsuit.

   Citing several decisions of the District Court, the plain-

tiffs ­ appellees herein ­ premised their cause of action on

§ 1605(a)(7), as amended by the so-called ``Flatow Amend-

ment,'' which was adopted shortly after § 1605(a)(7) was

added to the FSIA in 1996.  See Compl. ¶ 596, J.A. 143.  The

Flatow Amendment provides that:

        A n official, employee, or agent of a foreign state

       designated as a state sponsor of terrorism TTT

       while acting within the scope of his or her office,

       employment, or agency shall be liable to a United

       States national or the national's legal representa-

       tive for personal injury or death caused by acts of

       that official, employee, or agent for which the

       courts of the United States may maintain jurisdic-

       tion under § 1605(a)(7)  for money damages

       which may include economic damages, solatium,

       pain, and suffering, and punitive damages if the

       acts were among those described in § 1605(a)(7) .

28 U.S.C. § 1605 note.      Appellees alleged that the acts of

torture set forth in their complaint constituted ``traditional

torts of assault, battery and intentional infliction of emotional

distress,'' Compl. ¶ 597, J.A. 143, and requested compensatory

and punitive damages for each of the POW plaintiffs and their

family members.

   Appellees effected proper service of process through diplo-

matic channels, pursuant to 28 U.S.C. § 1608.          The Iraqi

defendants failed to appear, and the Clerk of the District

Court accordingly entered default against the defendants on

 

                               6

September 25, 2002. On March 31, 2003, appellees submitted

evidence to support their assertion of liability and claim for

damages.    These submissions provided further details re-

garding the factual basis of appellees' claims and again as-

serted the existence of a cause of action based on

§ 1605(a)(7), as amended by the Flatow Amendment, for

assault, battery, and intentional infliction of emotional dis-

tress.  See Pls.' Proposed Findings of Fact and Conclusions

of Law at 80­90.

   On July 7, 2003, the District Court entered final judgment

in favor of appellees.  See Acree I, 271 F. Supp. 2d 179.  The

District Court held that `` s uits brought under § 1605(a)(7)

may be based on conventional common law torts.''  Id. at 215.

Based on extensive findings of fact regarding the specific

injuries suffered by each plaintiff, the District Court awarded

compensatory and punitive damages to all of the POW plain-

tiffs and their family members totaling over $959 million.  Id.

at 224­25.

B.  Legal and Military Developments in Iraq

   As the proceedings in the District Court were running their

course, the legal and military situation in Iraq was changing

rapidly.   In connection with Iraq's designation as a state

sponsor of terrorism in September 1990, Congress had passed

various statutes imposing sanctions on Iraq and prohibiting

the United States Government and private parties from send-

ing assistance to Iraq or conducting business or trade with

Iraq.  Most notably, Congress enacted the Iraq Sanctions Act

of 1990, which condemned the Iraqi invasion of Kuwait and

provided for the maintenance of a trade embargo and eco-

nomic sanctions against Iraq.       See Pub. L. No. 101­513,

§§ 586­586J, 104 Stat. 1979, 2047­55 (1990) (codified at 50

U.S.C. § 1701 note (2000)) (``ISA'').      These provisions re-

quired that all assistance, exports, loans, credits, insurance, or

other guarantees be denied to Iraq, with exceptions for

limited humanitarian relief.  Section 586F(c) of the ISA also

required full enforcement against Iraq of § 620A of the

Foreign Assistance Act of 1961, which prohibits the grant of

any assistance to any country determined by the Secretary of

 

                                 7

State to have ``repeatedly provided support for acts of inter-

national terrorism,'' Pub. L. No. 87­195, § 620A, as added

Pub. L. No. 94­329, §  303, 90 Stat. 729, 753 (1976) (codified as

amended at 22 U.S.C. §  2371) (``FAA'').   Along with the FAA,

the ISA required that several other enumerated provisions of

law be fully enforced against Iraq, as well as ``all other

provisions of law that impose sanctions against a country

which has repeatedly provided support for acts of internation-

al terrorism.''   ISA §  586F(c), 104 Stat. 1979, 2051.

  Both the Iraq Sanctions Act and the Foreign Assistance

Act provide for rescission of the prohibitions they impose on

aid to Iraq and other designated states, but only after the

President certifies to Congress that there has been a funda-

mental change in the government or policies of the designated

state and that the leadership is no longer supporting acts of

terrorism.  See ISA § 586H, 104 Stat. 1979, 2052­53;  FAA,

22 U.S.C. § 2371(c) (2000).  A similar certification is required

to rescind the Secretary of State's determination under the

Export Administration Act that Iraq is a country that has

repeatedly provided support for acts of international terror-

ism.   See 50 U.S.C. App. §  2405(j)(4) (2000).

  Shortly after the commencement of the most recent mili-

tary action against Iraq in 2003, which resulted in the ouster

of Saddam Hussein's regime, the United States' policy toward

Iraq changed to reconstructing Iraq's government and re-

building the country's infrastructure.  In furtherance of these

new objectives, Congress took several steps to eliminate

restrictions on the ability of the United States Government

and private parties to provide assistance to or conduct busi-

ness with Iraq.  In April 2003, Congress enacted the Emer-

gency Wartime Supplemental Appropriations Act (``EWSAA''

or ``Act''), which appropriated additional funding for military

operations in Iraq, homeland security efforts in the United

States, and bilateral economic assistance to America's allies in

the war in Iraq.  See Pub. L. No. 108­11, 117 Stat. 559 (2003).

The bulk of the $78.5 billion appropriated in this Act was

allocated to national defense activities.  In addition, the Act

appropriated nearly $2.5 billion for a new Iraq Relief and

Reconstruction Fund, to be used for the development of

 

                                8

physical and government infrastructure and humanitarian

activities in Iraq.  See H.R. CONF.  REP.  No. 108­76, at 70­72

(2003).  The Act provided that assistance to Iraq under the

Iraq Relief and Reconstruction Fund and other aid programs

could be provided ``notwithstanding any other provision of

law.''   See EWSAA §  1502, 117 Stat. 559, 578.

  Of particular relevance to this appeal, § 1503 of the EW-

SAA authorized the President to ``suspend the application of

any provision of the Iraq Sanctions Act of 1990.'' EWSAA

§ 1503, 117 Stat. 559, 579.  Section 1503 `` p rovided further,

t hat the President may 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.''  Id. The suspension of these provisions

would permit American assistance to Iraq to proceed without

awaiting completion of the lengthy certification process re-

quired to rescind the Secretary of State's previous determina-

tion as to Iraq's status as a sponsor of terrorism.

  On May 7, 2003, President Bush carried out the authority

granted in § 1503 of the EWSAA by issuing Presidential

Determination No. 2003­23, which ``ma d e inapplicable with

respect to Iraq section 620A of the Foreign Assistance Act of

1961 TTT and any other provision of law that applies to coun-

tries that have supported terrorism.''  Presidential Determi-

nation No. 2003­23 of May 7, 2003, 68 Fed. Reg. 26,459 (May

16, 2003).  In a message to Congress delivered on May 22,

2003, President Bush explained the need to protect Iraqi

assets from attachment, judgment, or other judicial process,

and stated his view that the May 7 Determination applied to,

inter alia, the terrorism exception to the FSIA, 28 U.S.C.

§ 1605(a)(7).   See Message to the Congress Reporting the

Declaration of a National Emergency With Respect to the

Development Fund for Iraq, 39 WEEKLY  COMP.  PRES.  DOC. 647,

647­48 (May 22, 2003).

C.  The United States' Motion to Intervene

  On July 21, 2003, two weeks after the District Court

entered judgment for appellees, the United States moved to

intervene for the sole purpose of contesting the subject

 

                                 9

matter jurisdiction of the District Court.       This challenge

rested on legal developments that had occurred in the wake

of the United States' invasion of Iraq in March 2003.  The

United States argued that § 1605(a)(7) is a ``provision of law

that applies to countries that have supported terrorism''

within the meaning of § 1503 of the EWSAA, as implemented

by the May 7 Presidential Determination, and was therefore

made inapplicable to Iraq by operation of those provisions.

The District Court, the Government argued, was therefore

divested of jurisdiction over appellees' lawsuit as of May 7,

2003, two months prior to the entry of judgment against the

Iraqi defendants.

   On August 6, 2003, the District Court denied the Govern-

ment's motion to intervene as untimely.  See Acree II, 276 F.

Supp. 2d at 98­99.  The District Court noted that the United

States had waited 75 days after the Presidential Determina-

tion to file its motion, and the court was particularly reluctant

to permit the Government to intervene after appellees' case

had proceeded to final judgment.  See id.  The District Court

further held that, even if the United States' motion was not

untimely, appellees' lawsuit did not threaten to impair any

cognizable interest of the United States and that allowing the

Government to intervene at that late stage would cause undue

delay and prejudice to the parties.  See id. at 99­102.  Final-

ly, the District Court considered its own subject matter

jurisdiction and concluded that it retained jurisdiction under

the FSIA, despite the EWSAA and the Presidential Determi-

nation.  See id. at 100­01.  On August 22, 2003, the United

States filed this appeal of the District Court's decision.

D.   Related Developments

   Just before the United States moved to intervene, appellees

filed a second suit in the District Court against the Secretary

of the Treasury, seeking to satisfy their newly won judgment

against Iraq by attaching funds from seized Iraqi bank ac-

counts, pursuant to the Terrorism Risk Insurance Act of 2002

(``TRIA'').   See Acree v. Snow, 276 F. Supp. 2d 31 (D.D.C.

2003).   Section 201(a) of the TRIA provides that a person

 

                               10

who has obtained a judgment against a foreign state designat-

ed as a state sponsor of terrorism may seek to attach the

blocked assets of that state in satisfaction of an award of

compensatory damages based on an act of terrorism.          See

Pub. L. No. 107­297, § 201, 116 Stat. 2322, 2337 (2002)

(codified at 28 U.S.C. § 1610 note).  Although appellees ini-

tially prevailed in obtaining a temporary restraining order,

precluding the Secretary of the Treasury from spending down

the United States' seized Iraqi assets, the District Court

ultimately awarded summary judgment to the United States.

See Acree v. Snow, 276 F. Supp. 2d at 33.  The District Court

held that § 1503 of the EWSAA, as implemented by the May

7 Determination, made the TRIA inapplicable to Iraq and

therefore unavailable to appellees as a mechanism for satisfy-

ing their judgment.   See id. at 32­33.

  This court affirmed the decision of the District Court by

judgment.  See Acree v. Snow, No. 03­5195 (D.C. Cir. Oct. 7,

2003).  The court did not address the applicability or effect of

the EWSAA and the Presidential Determination, however.

Rather, the court adopted the reasoning of the Second Cir-

cuit's decision in Smith v. Federal Reserve Bank of New

York, 346 F.3d 264 (2d Cir. 2003).  In that case, the Second

Circuit held that plaintiffs proceeding under the TRIA to

attach seized Iraqi assets in satisfaction of a judgment were

precluded from doing so because the President had previously

confiscated the blocked assets and vested title in them in the

United States Department of the Treasury, thereby render-

ing those funds insusceptible to execution or attachment.  See

id. at 272 (discussing Exec. Order No. 13,290 of Mar. 20, 2003,

68 Fed. Reg. 14,307 (Mar. 24, 2003)).  The Second Circuit ­

and by extension this court ­ therefore did not reach the issue

of whether § 1503 or the Presidential Determination made

the TRIA inapplicable to Iraq and expressed no views on the

scope or validity of those provisions.   See id.

  In another important development, this court issued its

decision in Cicippio, 353 F.3d 1024, three months before oral

argument in this case.     That case presented the question

whether 28 U.S.C. § 1605(a)(7) or the Flatow Amendment, 28

U.S.C. §  1605 note, created a cause of action against a foreign

 

                               11

state.   Several decisions in the District Court had held or

assumed that these provisions did create a cause of action

against foreign states.  See Cicippio, 353 F.3d at 1032 (citing

cases).  The court of appeals had not previously affirmed any

of these judgments, however, or otherwise squarely confront-

ed the issue.   See Roeder v. Islamic Republic of Iran, 333

F.3d 228, 234 n.3 (D.C. Cir. 2003) (noting that it is ``far from

clear'' whether a plaintiff has a cause of action against a

foreign state under the FSIA, but resolving the appeal on

other grounds);  Bettis v. Islamic Republic of Iran, 315 F.3d

325, 333 (D.C. Cir. 2003) (raising but not resolving the

question of whether the FSIA creates a cause of action

against foreign states); Price v. Socialist People's Libyan

Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002) (``There is

a question TTT whether the FSIA creates a federal cause of

action for torture and hostage taking against foreign states.'')

(emphasis in original).

  In  Cicippio, this court definitively ruled that ``neither 28

U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two

considered in tandem, creates a private right of action against

a foreign government.''     353 F.3d at 1033.    We held that

§ 1605(a)(7) merely waived the immunity of foreign states,

without creating a cause of action against them, and that the

Flatow Amendment provides a cause of action only against

officials, employees, and agents of a foreign state, not against

the foreign state itself.  See id.  We further held that ``inso-

far as the Flatow Amendment creates a private right of action

against officials, employees, and agents of foreign states, the

cause of action is limited to claims against those officials in

their individual, as opposed to their official, capacities.''  Id.

at 1034. Because of its clear relevance to the instant case, in

which the only named defendants are the Republic of Iraq,

the Iraqi Intelligence Service, and Saddam Hussein in his

official capacity as President of Iraq, we ordered the parties

here to consider the implications of our ruling in Cicippio for

appellees' suit and to be prepared to discuss the issue at oral

argument.  See Acree v. Republic of Iraq, No. 03­5232 (D.C.

Cir. Apr. 5, 2004).

 

                                 12

                           II.  ANALYSIS

  This case requires us to consider whether § 1503 of the

EWSAA, as implemented by the May 7 Presidential Determi-

nation, makes the terrorism exception to the FSIA inapplica-

ble with respect to Iraq.       While it is a close question, we

agree with appellees that 28 U.S.C. § 1605(a)(7) is not a

provision of law that falls within the scope of § 1503.  The

District Court therefore properly exercised jurisdiction over

appellees' lawsuit under the FSIA.          Having reached this

conclusion, we need not address the additional issues debated

by the parties concerning the retroactive scope and constitu-

tional validity of § 1503 and the Presidential Determination.

  Although we find that the District Court had jurisdiction in

this matter, the judgment for appellees must nonetheless be

vacated.    This court's recent decision in Cicippio makes it

clear that plaintiffs cannot state a cause of action against a

foreign state under § 1605(a)(7) or the Flatow Amendment,

the sole bases for appellees' action in this case.      Although

Cicippio was decided after the District Court's judgment in

this case, it is nonetheless the controlling precedent to which

we must look in determining whether appellees have stated a

cause of action.  Because appellees' action fails under Cicip-

pio, we conclude that the District Court's judgment in favor

of appellees must be vacated and their suit dismissed for

failure to state a cause of action.

  Before reaching any of these merits issues, however, we

must consider the propriety of the District Court's order

denying the United States' motion to intervene.  For, in any

appeal, ```the first and fundamental question is that of jurisdic-

tion, first, of the appellate  court, and then of the court from

which the record comes.'''  Steel Co. v. Citizens for a Better

Env't, 523 U.S. 83, 94 (1998) (quoting Great S. Fire Proof

Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)).  If the United

States were not properly a party to this case, then it would

have no right to appeal the District Court's judgment, see

Marino v. Ortiz, 484 U.S. 301, 304 (1988), and we would be

required to dismiss this case without passing upon its merits

for lack of a proper appellant.

 

                                13

A.  The Motion to Intervene

  The District Court's denial of a motion to intervene is an

appealable final order.  See Fund for Animals, Inc. v. Nor-

ton, 322 F.3d 728, 732 (D.C. Cir. 2003).       Our standard of

review in such an appeal is mixed.  We review pure questions

of law de novo, findings of fact for clear error, and discretion-

ary issues such as timeliness for abuse of discretion.  See id.

In this case, we find that the District Court abused its

discretion in finding the United States' motion to be untimely

and erred in denying the motion.

  Under Rule 24 of the Federal Rules of Civil Procedure, a

prospective intervenor must be permitted to intervene as of

right if the applicant claims an interest relating to the subject

matter of the case, if the disposition of the case stands to

impair that interest, and if the applicant's interest is not

adequately represented by the existing parties.  See FED.  R.

CIV.  P. 24(a).  Alternatively, an applicant may be permitted to

intervene if his claim shares a question of law or fact in

common with the underlying action and if the intervention

will not unduly delay or prejudice the rights of the original

parties.   See  FED.  R. CIV.  P. 24(b).  Under either test, the

prospective intervenor's motion must be ``timely.''  See  FED.

R. CIV.  P. 24(a), (b).  Evaluation of the timeliness of a motion

to intervene lies within the sound discretion of the District

Court.  See Fund for Animals, 322 F.3d at 732 (citing Mass.

Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776,

779 (D.C. Cir. 1997) (``MSL'')).

  Courts are generally reluctant to permit intervention after

a suit has proceeded to final judgment, particularly where the

applicant had the opportunity to intervene prior to judgment.

See Associated Builders & Contractors, Inc. v. Herman, 166

F.3d 1248, 1257 (D.C. Cir. 1999);  MSL, 118 F.3d at 783 n.5;

see also 7C CHARLES  ALAN  WRIGHT ET AL., FEDERAL  PRACTICE

AND  PROCEDURE § 1916 (2d ed. 1986) (``WRIGHT & MILLER'').

The timeliness of a motion to intervene must be considered in

light of all the circumstances of the case, however, see WRIGHT

& MILLER § 1916, including the purpose for which interven-

tion is sought, the need for intervention as a means of

 

                                14

preserving the applicant's rights, and the possibility of preju-

dice to the existing parties, see Smoke v. Norton, 252 F.3d

468, 471 (D.C. Cir. 2001) (quoting United States v. AT&T, 642

F.2d 1285, 1295 (D.C. Cir. 1980)).  Post-judgment interven-

tion is often permitted, therefore, where the prospective

intervenor's interest did not arise until the appellate stage or

where intervention would not unduly prejudice the existing

parties.  See WRIGHT & MILLER § 1916.  In particular, courts

often grant post-judgment motions to intervene where no

existing party chooses to appeal the judgment of the trial

court.   See id.

   In Smoke, we reversed the District Court's denial of a post-

judgment motion to intervene where the existing party indi-

cated it might not bring an appeal.  See 252 F.3d at 470­71.

In doing so, we noted that the would-be intervenor's interests,

which had been consonant with those of the existing party,

were no longer adequately represented by that party's litiga-

tion of the case.  See id. at 471.  In those circumstances, we

found the post-judgment motion to intervene for the purpose

of prosecuting an appeal to be timely, because ```the potential

inadequacy of representation came into existence only at the

appellate stage.'''  Id. (quoting Dimond v. District of Colum-

bia, 792 F.2d 179, 193 (D.C. Cir. 1986)); see also United

Airlines, Inc. v. McDonald, 432 U.S. 385, 395 (1977) (holding

that the trial court erred in denying as untimely a post-

judgment motion to intervene filed promptly after judgment

and noting that this holding was ``consistent with several

decisions of the federal courts permitting post-judgment in-

tervention for the purpose of appeal'');  Dimond, 792 F.2d at

193­94 (reversing the District Court's denial of post-judgment

intervention where the intervenor sought to participate only

at the appellate stage).

   In this case, the District Court denied the United States'

motion to intervene largely because it came after the court

had already entered judgment in the case.  See Acree II, 276

F. Supp. 2d at 98­99.  The District Court noted that approxi-

mately two months had intervened between the May 7 Presi-

dential Determination and the entry of final judgment for

appellees, during which time the United States could have

filed its motion.    See id.  However, in reaching this judg-

 

                               15

ment, the District Court failed to consider adequately the

unique circumstances of this case.

  In particular, the District Court failed to weigh the impor-

tance of this case to the United States' foreign policy inter-

ests and the purposes for which the Government sought to

intervene.  This is not a case in which the United States was

simply seeking to weigh in on the merits.           Rather, the

Government's sole purpose in intervening was to raise a

highly tenable challenge to the District Court's subject mat-

ter jurisdiction in a case with undeniable impact on the

Government's conduct of foreign policy and to preserve that

issue for appellate review.

  In the face of these weighty interests, appellees assert no

prejudice arising from the United States' intervention.  Nor

could they, given the District Court's independent obligation

to assure itself of its own jurisdiction.        The only result

achieved by denial of the motion to intervene in this case is

the effective insulation of the District Court's exercise of

jurisdiction from all appellate review.        In these circum-

stances, we find that the District Court abused its discretion

in denying the United States' motion as untimely.  See Unit-

ed Airlines, 432 U.S. at 395­96;  Smoke, 252 F.3d at 470­71.

In light of its clear foreign policy interests, the United States

was entitled to intervene as of right pursuant to Rule 24.  See

Roeder, 333 F.3d at 233 (permitting the United States to

intervene in a case implicating foreign policy concerns).  We

therefore reverse the decision of the District Court denying

the United States' motion to intervene and turn to the merits

of the Government's jurisdictional challenge.

B.  Subject Matter Jurisdiction Under the FSIA

  It is uncontested that at the time appellees commenced

their lawsuit in April 2002, the District Court had jurisdiction

over the case under § 1605(a)(7), because appellees sought

damages for injuries arising from alleged acts of torture that

occurred while Iraq was designated as a state sponsor of

terrorism.  The United States now argues that § 1503 of the

EWSAA, as implemented by the May 7 Presidential Determi-

 

                               16

nation, made § 1605(a)(7) inapplicable to Iraq and thereby

divested the District Court of its jurisdiction in appellees'

case.  Appellees respond that § 1605(a)(7) is not a provision

of law that falls within the scope of § 1503 of the EWSAA.

Appellees alternatively contend that § 1503 and the Presiden-

tial Determination cannot be applied against them in this case

without resulting in impermissible retroactive effects or vio-

lating constitutional principles of separation of powers.  We

review the District Court's exercise of jurisdiction de novo.

See Empagran S.A. v. F. Hoffman­LaRoche, Ltd., 315 F.3d

338, 343 (D.C. Cir. 2003).

  In our view, while it is an exceedingly close question, the

language of § 1503 of the EWSAA does not embrace the

terrorism exception to the FSIA.  We conclude that § 1503,

read in the context of the EWSAA as a whole and its

legislative history, is aimed at legal provisions that present

obstacles to assistance and funding for the new Iraqi Govern-

ment and was not intended to alter the jurisdiction of the

federal courts under the FSIA.

  This issue presents us with a basic question of statutory

interpretation.  We therefore begin with the language of the

EWSAA.      See Holloway v. United States, 526 U.S. 1, 6

(1999).   Section 1503 provides, in its entirety:

       The President may suspend the application of any

       provision of the Iraq Sanctions Act of 1990:  Pro-

       vided, That nothing in this section shall affect the

       applicability of the Iran­Iraq Arms Non­Prolifer-

       ation Act of 1992, except that such Act shall not

       apply to humanitarian assistance and supplies:

       Provided further,  That the President may 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:  Provided further, That

       military equipment, as defined by title XVI, sec-

       tion 1608(1)(A) of Public Law 102­484, shall not be

       exported under the authority of this section:  Pro-

       vided further, That section 307 of the Foreign

 

                               17

       Assistance Act of 1961 shall not apply with respect

       to programs of international organizations for

       Iraq: Provided further, That provisions of law

       that direct the United States Government to vote

       against or oppose loans or other uses of funds,

       including for financial or technical assistance, in

       international financial institutions for Iraq shall

       not be construed as applying to Iraq: Provided

       further, That the President shall submit a notifica-

       tion 5 days prior to exercising any of the authori-

       ties described in this section to the Committee on

       Appropriations of each House of the Congress, the

       Committee on Foreign Relations of the Senate,

       and the Committee on International Relations of

       the House of Representatives:  Provided further,

       That not more than 60 days after enactment of

       this Act and every 90 days thereafter the Presi-

       dent shall submit a report to the Committee on

       Appropriations of each House of the Congress, the

       Committee on Foreign Relations of the Senate,

       and the Committee on International Relations of

       the House of Representatives containing a sum-

       mary of all licenses approved for export to Iraq of

       any item on the Commerce Control List contained

       in the Export Administration Regulations, includ-

       ing identification of end users of such items:  Pro-

       vided further, That the authorities contained in

       this section shall expire on September 30, 2004, or

       on the date of enactment of a subsequent Act

       authorizing assistance for Iraq and that specifical-

       ly amends, repeals or otherwise makes inapplica-

       ble the authorities of this section, whichever oc-

       curs first.

EWSAA § 1503, 117 Stat. 559, 579 (citations omitted) (em-

phasis added).    The controversy in this case concerns the

second proviso of § 1503, authorizing 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.''        Id.

 

                               18

(emphasis added).  The United States argues that this lan-

guage embraces the authority to make § 1605(a)(7) inapplica-

ble to Iraq, and that the President carried out that authority

in the May 7 Presidential Determination.

  The logic of this interpretation is straightforward:  Section

1605(a)(7) creates an exception to the sovereign immunity

normally enjoyed by foreign states in American courts for

suits based on acts of torture or other terrorist acts.  This

exception applies only if the defendant foreign state was

designated as a sponsor of terrorism at the time the acts took

place.  Section 1605(a)(7) is thus a ``provision of law that

applies to countries that have supported terrorism.''        The

EWSAA authorizes the President to make such provisions

inapplicable to Iraq, which authority the President exercised

in the May 7 Determination.  Section 1605(a)(7) therefore no

longer applies to Iraq and cannot provide a basis for jurisdic-

tion in appellees' case.   Quod erat demonstrandum.

  The difficulty with this view is that it focuses exclusively on

the meaning of one clause of § 1503, divorced from all that

surrounds it.  This approach violates ``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.''  King

v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991) (citations

omitted).  In interpreting any statute, we must ```consider not

only the bare meaning' of the critical word or phrase `but also

its placement and purpose in the statutory scheme.'''  Hollo-

way, 526 U.S. at 6 (quoting Bailey v. United States, 516 U.S.

137, 145 (1995)).

  Traditional interpretive canons likewise counsel against a

reading of the second proviso of § 1503 that ignores the

context of § 1503 and the EWSAA as a whole.  In particular,

the canons of noscitur a sociis and ejusdem generis remind

us that `` w here general words follow specific words in a

statutory enumeration, the general words are construed to

embrace only objects similar in nature to those objects enu-

merated by the preceding specific words.''  Wash. State Dep't

of Soc. & Health Servs. v. Guardianship Estate of Keffeler,

537 U.S. 371, 384 (2003) (internal quotation marks and cita-

 

                                19

tions omitted).    In addition, where statutory language is

phrased as a proviso, the presumption is that its scope is

confined to that of the principal clause to which it is attached.

See United States v. Morrow, 266 U.S. 531, 534­35 (1925).

  Applying the foregoing principles, we conclude that the

scope of § 1503 is narrower than the Government suggests.

The primary function of the EWSAA was to provide emer-

gency appropriations in support of the United States' military

operations in Iraq.  The Act also provided additional funding

for homeland security activities in the United States.  Chap-

ter 5 of the Act, entitled ``Bilateral Economic Assistance,''

appropriated funds for a variety of assistance programs to

Iraq and other American allies.  See EWSAA, ch. 5, 117 Stat.

559, 572­81.  In addition to the Iraq Relief and Reconstruc-

tion Fund, these programs included the Child Survival and

Health Programs Fund, International Disaster Assistance,

the Economic Support Fund (providing assistance to the

governments of Jordan, Egypt, Turkey, the Philippines, and

Afghanistan), Loan Guarantees to Israel, the Emergency

Refugee and Migration Assistance Fund, peacekeeping opera-

tions, and similar activities.  Thus, each program funded in

Chapter 5 of the EWSAA addresses matters of bilateral

economic assistance to Iraq and other countries.  The United

States points to nothing in this portion of the Act ­ or

elsewhere in the EWSAA, for that matter ­ that addresses

the jurisdiction of the federal courts.

  Section 1503 is one of several ``general provisions'' within

Chapter 5 of the EWSAA.  See EWSAA §§ 1501­1506, 117

Stat. 559, 578­81.     These ``general provisions'' all supply

specific instructions or impose conditions upon the outlays of

money appropriated throughout the Chapter.  For example,

§ 1501 provides that the President has authority to transfer

money between the several programs funded in the Chapter,

upon proper notification to Congress.  Section 1502 provides

that `` a ssistance or other financing under this chapter may

be provided for Iraq notwithstanding any other provision of

law,'' subject to certain provisos.  Section 1504 authorizes the

President to export certain nonlethal military equipment to

Iraq, notwithstanding any other provision of law, subject to

 

                                20

certain conditions and reporting requirements.  Section 1503

thus finds itself situated among several other provisions that

govern the distribution of assistance to Iraq within the con-

text of ongoing military operations and against a backdrop of

legal obstacles that would otherwise prohibit such assistance.

  Section 1503 itself authorizes the President to suspend the

application of any provision of the Iraq Sanctions Act of 1990,

subject to eight provisos.  See EWSAA § 1503, 117 Stat. 559,

579.  Three of the provisos impose notification or reporting

requirements and provide for expiration of the suspension

authority granted in § 1503.      The remaining provisos are

each responsive to a specific aspect of the ISA or other

statutes that are implicated by the suspension authority

granted in § 1503, thereby resolving potential ambiguities

that may arise in the statutory landscape as a result of the

suspension of the ISA.  Thus, the first proviso, stating that

nothing in § 1503 shall affect the applicability of the Iran­

Iraq Arms Non­Proliferation Act of 1992, reflects the fact

that portions of the Non­Proliferation Act incorporate the

ISA by reference and are to remain in effect despite suspen-

sion of the ISA.  See Iran­Iraq Arms Non­Proliferation Act

of 1992, Pub. L. No. 102­484, §§ 1601­08, 106 Stat. 2315,

2571­75 (codified at 50 U.S.C. § 1701 note (2000)).  Similarly,

the fifth proviso states that ``provisions of law that direct the

United States Government to vote against or oppose loans or

other uses of funds, including for financial or technical assis-

tance, in international financial institutions for Iraq shall not

be construed as applying to Iraq.''   This language responds in

part to § 586G(a)(5) of the ISA, which requires the United

States to oppose any loan or financial or technical assistance

to Iraq by international financial institutions, pursuant to

other provisions of law incorporated into the ISA.  See ISA

§ 586G(a)(5), 104 Stat. 1979, 2052.     This fifth proviso thus

makes clear that the President may suspend not only the

ISA, but also those provisions of law that are incorporated by

reference into the ISA's prohibition on American support for

assistance to Iraq from international financial institutions.

The remaining provisos are similarly tied to specific features

 

                               21

of the ISA and the other statutes with which the ISA

interacts.

  The second proviso of § 1503 ­ which lies at the heart of

the controversy in the instant case ­ provides that ``the

President may 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.''   Just like the other provisos in § 1503, this

language is responsive to a particular section of the ISA.  As

we have seen, the ISA required that certain enumerated

provisions of law, including § 620A of the Foreign Assistance

Act of 1961, and ``all other provisions of law that impose

sanctions against a country which has repeatedly provided

support for acts of international terrorism'' be fully enforced

against Iraq.  See ISA § 586F(c), 104 Stat. 1979, 2051.  The

second proviso in § 1503 thus makes clear that the authority

in § 1503 to suspend the ISA includes the authority to make

inapplicable to Iraq § 620A of the FAA and those additional

provisions of law incorporated into § 586F(c) of the ISA.

  As previously noted, §  620A of the FAA prohibits the grant

of assistance to any country determined by the Secretary of

State to have ``repeatedly provided support for acts of inter-

national terrorism.''  22 U.S.C. § 2371(a).     A survey of the

other provisions enumerated in §  586F(c) of the ISA indicates

that all of those provisions deal with restrictions on assistance

to state sponsors of terrorism.  These provisions include § 40

of the Arms Export Control Act, 22 U.S.C. § 2780 (2000);

§§ 555 and 556 of the Foreign Operations, Export Financing,

and Related Programs Appropriations Act of 1991, Pub. L.

No. 101­513, §§ 555­556, 104 Stat. 1979, 2021­22 (1990);  and

§ 555 of the International Security and Development Cooper-

ation Act of 1985, Pub. L. No. 99­83, § 555, 99 Stat. 190, 227.

Each of these provisions calls for the imposition of economic

sanctions on countries that are determined to have supported

international terrorism, including restrictions on exports, avi-

ation boycotts, and prohibitions on loans, credits, or other

financial assistance.  Read within this context, the reference

in the ISA to ``all other provisions of law that impose sanc-

tions against a country which has repeatedly provided sup-

 

                               22

port for acts of international terrorism'' is best read to denote

provisions of law that call for economic sanctions and prohibit

grants of assistance to state sponsors of terrorism.

  To recapitulate, the meaning of the disputed language in

§ 1503, like each of the other substantive provisos in that

section, is thus illuminated by consideration of the corre-

sponding provisions of the ISA.      See Morrow, 266 U.S. at

534­35 (``The general office of a proviso is to except some-

thing from the enacting clause, or to qualify and restrain its

generality and prevent misinterpretation.       Its grammatical

and logical scope is confined to the subject-matter of the

principal clause.'') (citations omitted).     The reference in

§ 586F(c) of the ISA to § 620A of the FAA and ``all other

provisions of law'' that impose sanctions on state sponsors of

terrorism appears clearly to encompass laws which, like the

FAA and the other enumerated provisions, impose obstacles

to assistance to designated countries.  None of these provi-

sions remotely suggests any relation to the jurisdiction of the

federal courts.   Thus, when read in juxtaposition with this

portion of the ISA, the second proviso of § 1503 is more

persuasively interpreted as sharing a similar scope.  That is,

it authorizes the President to make inapplicable with respect

to Iraq those provisions of law that impose economic sanc-

tions on Iraq or that present legal obstacles to the provision

of assistance to the Iraqi Government.       This interpretation

reflects a central function of Chapter 5 of the EWSAA, which

is to provide for relief and reconstruction in post-war Iraq.

  Although sparse, the legislative history of § 1503 of the

EWSAA likewise supports our interpretation of the disputed

language in § 1503.  The EWSAA began as a request from

the President to Congress for emergency supplemental ap-

propriations to support Department of Defense operations in

Iraq and for other purposes.       See Letter from President

George W. Bush to Rep. Dennis Hastert, Speaker of the

House of Representatives (Mar. 25, 2003), reprinted in H.R.

DOC.  No. 108­55, at 1 (2003).  The portion of the President's

request dealing with bilateral economic assistance included

language repealing the Iraq Sanctions Act of 1990, subject to

 

                               23

the proviso `` t hat the President may make inapplicable with

respect to Iraq section 620A of the Foreign Assistance Act of

1961, as amended, or other provision of law that applies to

countries that have supported terrorism.''      H.R. DOC.  No.

108­55, at 24.    The request explained that this language

would ``authorize the President to make inapplicable with

respect to Iraq section 620A, and section 620G, and section

307 of the Foreign Assistance Act.''   Id.

  One week after the President issued this request for sup-

plemental appropriations, the Committees on Appropriations

of the Senate and House reported bills that each contained

language similar to that proposed by the President.        The

Senate version, reported on April 1, 2003, repeated exactly

the language of the President's request, repealing the ISA

and authorizing the President to ``make inapplicable with

respect to Iraq section 620A of the Foreign Assistance Act of

1961, as amended, or other provision of law that applies to

countries that have supported terrorism.''       S. 762, 108th

Cong. § 503 (2003).     The accompanying committee report

explained that this section of the Senate bill ``provide d  the

request for the repeal of the Iraqi Sanctions Act of 1990 sic ,

and  other limitations on assistance for Iraq.''  S. REP.  No.

108­33, at 21 (2003) (emphasis added).  The House version,

reported on April 2, 2003, included the same language that

became § 1503 of the EWSAA.  See H.R. 1559, 108th Cong.

§ 1402 (2003).    The committee report accompanying the

House bill explained that this language was ``similar to the

authority requested by the President that would repeal the

Iraq Sanctions Act of 1990 and authorize the President to

make inapplicable with respect to Iraq section 620A and

section 307 of the Foreign Assistance Act.''  H.R. REP.  No.

108­55, at 30 (2003).

  The Conference Committee agreed to the language pro-

posed in the House version of the supplemental appropriation.

See H.R. CONF.  REP.  No. 108­76, at 21 (2003).  The conferees

reported that § 1503 of the conference agreement ``would

make inapplicable the Iraq Sanctions Act of 1990 and author-

ize the President to make inapplicable with respect to Iraq

section 620A and section 307 of the Foreign Assistance Act.''

 

                               24

Id. at 76.   The language of the conference agreement was

passed by both houses on April 12, 2003, without further

amendment to § 1503, and signed by the President on April

16, 2003.

  While not conclusive, this legislative history bolsters our

conclusion as to the scope of § 1503.  There is no reference in

the legislative history to the FSIA in particular or to federal

court jurisdiction in general.  Rather, the legislative history

of the EWSAA reflects an underlying legislative concern with

eliminating statutory restrictions on aid and exports needed

for the reconstruction of Iraq.  This concern is easily under-

stood.   Any effort by the United States Government or

private businesses in the United States to provide assistance

or conduct business with the new Iraqi regime, in the absence

of § 1503, would be barred by numerous provisions of law

until such time as the President and the Secretary of State

could make the necessary certifications to Congress to re-

move Iraq's designation as a state sponsor of terrorism.  See,

e.g., 22 U.S.C. § 2371(c) (rescission provisions of the Foreign

Assistance Act of 1961);  50 U.S.C. App. § 2405(j)(4) (rescis-

sion provisions of the Export Administration Act).      Section

1503 permits assistance and reconstruction efforts to proceed

without waiting for this lengthy and complex certification

process to run its course by setting aside the ISA and ``other

limitations on assistance for Iraq,'' S. REP.  No. 108­33, at 21

(2003).  This legislative history, along with the other provi-

sions in § 1503, the EWSAA as a whole, and the complex web

of economic sanctions and prohibitions on assistance that

previously applied to Iraq thus supports our interpretation

that the general reference in § 1503 to ``other provision s  of

law that appl y  to countries that have supported terrorism''

embraces only those provisions of law that constitute legal

restrictions on assistance to and trade with Iraq.

  Because we find, as a matter of statutory interpretation,

that § 1503 does not make the terrorism exception to the

FSIA inapplicable to Iraq, we need not consider whether

§ 1503 operates retroactively to appellees' pending lawsuit.

Nevertheless, comparison of the temporal scope of 28 U.S.C.

§ 1605(a)(7) with that of § 1503 lends further support to our

 

                               25

resolution of the statutory interpretation issue.      The lan-

guage of § 1503 is broad, general, and unclear.         Yet, the

United States seeks to employ it to supersede the much more

precise language of § 1605(a)(7), which already provides in

quite specific terms for the prospective restoration of sover-

eign immunity once a country is decertified as a sponsor of

terrorism.  Specifically, § 1605(a)(7) provides that the terror-

ism exception to foreign sovereign immunity arises only when

a defendant country is designated as a sponsor of terrorism

``at the time the act occurred, unless later so designated as a

result of such act.''   28 U.S.C. § 1605(a)(7)(A). Thus, the

FSIA specifically provides that when a country, once desig-

nated as a state sponsor of terrorism, is subsequently re-

stored to good standing, that country is still amenable to suit

for acts that took place prior to the restoration of its sover-

eign immunity.  As the United States would have it, however,

waiver of § 1605(a)(7) in the case of Iraq pursuant to § 1503

would restore Iraq's immunity even for acts that occurred

while Iraq was still considered a sponsor of terrorism.

   This perplexing result appears even more bizarre when the

sunset provisions of § 1503 are taken into account.  The final

proviso in § 1503 states that ``the authorities contained in this

section shall expire on September 30, 2004, or on the date of

enactment of a subsequent Act authorizing assistance for Iraq

and that specifically amends, repeals or otherwise makes

inapplicable the authorities of this section, whichever occurs

first.'' EWSAA § 1503, 117 Stat. 559, 579.        If the United

States were correct in its interpretation of § 1503, then this

sunset provision would mean that, absent intervening events,

§ 1605(a)(7) would once again be available as a basis of

jurisdiction after September 30, 2004.       At such time, the

District Court would properly have jurisdiction over a suit

against Iraq based on events that occurred while Iraq was

designated as a state sponsor of terrorism.  It makes little

sense to say that between the date of the May 7 Presidential

Determination and the date of expiration of the authorities

conferred in § 1503, there is no federal court jurisdiction for

suits against Iraq, but that after that period elapses, such

suits will again be available.  Yet, this is precisely the result

 

                                  26

that follows if one imposes the unwieldy language of § 1503

upon the otherwise careful and precise scheme established

under the FSIA.         Thus, considerations of temporal scope

weigh in favor of an interpretation of § 1503 that avoids this

conflict.

  The United States contends that, even if the disputed

clause in § 1503 must be construed to reach only those

provisions of law that are similar in nature to the legal

restrictions on assistance to Iraq that are enumerated else-

where in § 1503, the terrorism exception to the FSIA still

falls within the scope of provisions the President is authorized

to make inapplicable to Iraq.  Specifically, the United States

points out that § 1605(a)(7) shares a ``criterion of similarity''

with the other provisions mentioned in § 1503, Reply Br. at

17, namely, that it is a provision of law that imposes penalties

on foreign nations as a result of their designation as sponsors

of terrorism.     This contention has some attraction, because

§ 1605(a)(7) arguably poses a threat of a sort to American

reconstruction efforts in Iraq by providing jurisdiction in

American courts for cases seeking huge liability judgments

against the Iraqi Government.  Under this view, it is plausi-

ble to suggest that § 1503 encompasses the terrorism excep-

tion to the FSIA.

  It is true that section 1605(a)(7) is not totally dissimilar to

laws imposing economic sanctions or prohibitions on assis-

tance and trade, in that it penalizes countries designated as

supporters of terrorism.  However, even if the FAA and the

other economic penalties discussed above could be said to

share this single common attribute with § 1605(a)(7), the

FSIA's rules of federal court jurisdiction would still be sever-

al steps removed from those other provisions, which are all

much more closely analogous to one another.                Because

§ 1503, the EWSAA as a whole, and the relevant legislative

history all reflect an overriding concern for economic assis-

tance, trade, and reconstruction in Iraq, we find that this

context counsels against a reading of § 1503 that stretches so

far as to reach a law, like the FSIA, that is largely dissimilar

to all of the ``look-alike'' provisions affected by §  1503.

 

                               27

   We conclude that when § 1503 is read in the context of the

other provisions of the EWSAA and its legislative history, as

it must be, that provision is best understood as applying only

to legal restrictions on assistance and funding for the new

Iraqi Government.      There is nothing in the language of

§ 1503, the EWSAA as a whole, or its legislative history to

suggest that Congress intended by this statute to alter the

jurisdiction of the federal courts under the FSIA.      We ac-

knowledge that this is a close question.      We nevertheless

conclude    that  § 1503    was  not  intended    to  apply   to

§ 1605(a)(7).  The scope of the May 7 Presidential Determi-

nation is immaterial, because it cannot exceed the authority

granted in § 1503.  We therefore affirm the District Court's

exercise of jurisdiction over appellees' claims under 28 U.S.C.

§ 1605(a)(7).

C.  Cause of Action

   Having concluded that jurisdiction in this case properly lies

in the District Court, we arrive at the clear conflict between

the District Court's judgment in favor of appellees and this

court's recent holding in Cicippio-Puleo v. Islamic Republic

of Iran, 353 F.3d 1024.     In Cicippio, we held that neither

§ 1605(a)(7) nor the Flatow Amendment, nor the two consid-

ered together, supplies a cause of action against foreign

states.   See 353 F.3d at 1033.      In the instant case, the

District Court predicated its finding of liability on precisely

those provisions, and appellees point to no alternative cause

of action.  We therefore conclude that appellees have failed to

state a cause of action.

   Because of the default of the Iraqi defendants, no party

questioned the existence of appellees' cause of action during

the proceedings in the District Court.      Nor did the United

States raise this issue in its motion to intervene.  Neverthe-

less, no party contests this court's discretion to reach this

issue on our own motion in light of the intervening change in

law.

   Appellees rightly contend that non-jurisdictional defenses

such as the failure to state a cause of action are waivable and

that courts generally do not permit parties to raise such

 

                                28

issues for the first time on appeal.  The right of a party to

advance this objection is not coextensive with the discretion

of the court to consider the issue, however.  As we have held,

`` c ourts of appeals are not rigidly limited to issues raised in

the tribunal of first instance; they have a fair measure of

discretion to determine what questions to consider and re-

solve for the first time on appeal.''  Roosevelt v. E.I. Du Pont

de Nemours & Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992)

(addressing the existence of a cause of action for the first

time on appeal in light of a relevant intervening Supreme

Court decision).  Thus, while we will ordinarily refrain from

reaching non-jurisdictional questions that have not been

raised by the parties or passed on by the District Court, we

may do so on our own motion in ``exceptional circumstances.''

Id. (``Qualifying  circumstances     include TTT an  intervening

change in the lawTTTT'').

   Our intervening decision in Cicippio, which definitively

resolved a previously open question of law that we find to be

dispositive in appellees' case, surely qualifies as the type of

exceptional circumstance that justifies our exercise of discre-

tion.  See id. at 419.  The issue before us is ``purely one of

law important in the administration of federal justice, and

resolution of the issue does not depend on any additional facts

not considered by the district court.''    Id. at 419 n.5.   The

circumstances of this case are even more extraordinary when

one considers the stakes:  Appellees have obtained a nearly-

billion dollar default judgment against a foreign government

whose present and future stability has become a central

preoccupation of the United States' foreign policy.  In these

circumstances, it would be utterly unseemly for this court to

ignore the clear implications of our holding in Cicippio.  We

therefore find it appropriate to exercise our discretion to

determine whether appellees' case must be dismissed for

failure to state a cause of action.

   In their complaint, appellees premised their claim of liabili-

ty on § 1605(a)(7), as amended, asserting that this provision

``creates a federal cause of action for torture TTT of American

nationals, or for the benefit of American national claimants,

when such acts are committed by a foreign state designated

 

                                29

as a state sponsor of terrorism.''      Compl. ¶ 596, J.A. 143.

The complaint pointed to several decisions of the District

Court that proceeded on the assumption that § 1605(a)(7), as

amended by the Flatow Amendment, ``not only waives sover-

eign immunity and provides jurisdiction but also creates a

cause of action within its scope of applicability.''  Id. While

appellees also alluded to the ``traditional torts of assault,

battery and intentional infliction of emotional distress'' in

their generic form, Compl. ¶ 597, J.A. 143, they did not point

to any other specific source in state, federal, or foreign law

for their cause of action.

   The District Court similarly relied on § 1605(a)(7) and the

Flatow Amendment, finding that those provisions ``create    a

federal cause of action against officials, employees and agents

of a foreign state, as well as the state and its agencies and

instrumentalities themselves.''   Acree I, 271 F. Supp. 2d at

215.  In company with appellees, the District Court reasoned

that `` s uits brought under § 1605(a)(7) may be based on

conventional common law torts such as assault, battery, and

intentional infliction of emotional distress,'' id., and found that

the facts appellees alleged satisfied the elements of several

such torts, see id. at 215­17.     The District Court cited no

alternative cause of action.

   In  Cicippio, we held that neither § 1605(a)(7) nor the

Flatow Amendment, nor the two together, creates a cause of

action against foreign states themselves.  See Cicippio, 353

F.3d at 1033.      This holding applies also to suits against

``agenc ies  or instrumentalit ies '' of a foreign state, which

are included in the FSIA's definition of ``foreign state,'' see 28

U.S.C. § 1603(a), (b); see also Roeder, 333 F.3d at 234

(explaining that an official state entity whose core functions

are governmental is treated as the foreign state itself for

purposes of the FSIA);  Compl. ¶ 3, J.A. 33 (stating that the

Iraqi Intelligence Service is an agency or instrumentality of

Iraq and therefore also a ``foreign state'' within the meaning

of the FSIA).  Cicippio also made clear that any suit against

an official of a foreign state must be a suit in that official's

personal capacity.  See 353 F.3d at 1034;  cf. Compl. ¶¶ 2­3,

J.A. 31­33 (naming as a defendant Saddam Hussein ``in his

 

                               30

official capacity as President of the Republic of Iraq.'').  The

causes of action advanced by appellees before the District

Court therefore do not suffice to state claims for which relief

may be granted.

  In response to our order to consider this issue in prepara-

tion for oral argument, appellees did not advance any alterna-

tive causes of action.  At oral argument, counsel for appellees

gestured again toward generic common law torts, see Oral

Argument Tr. at 23­29, but generic common law cannot be

the source of a federal cause of action.  The shared common

law of the states may afford useful guidance as to the rules of

decision in a FSIA case where a cause of action arises from

some specific and concrete source of law.        See Bettis, 315

F.3d at 333 (assuming, arguendo, that plaintiffs stated a

cause of action under the Flatow Amendment and then

turning to generic common law to flesh out the controlling

substantive law).  But there is no support for the proposition

that generic common law itself may furnish the cause of

action.  Rather, as in any case, a plaintiff proceeding under

the FSIA must identify a particular cause of action arising

out of a specific source of law.  Appellees failed to do so in

this case.

  Here, appellees pointed to no source of liability other than

§ 1605(a)(7) and the Flatow Amendment.           When pressed

repeatedly at oral argument, appellees offered no coherent

alternative.  We therefore find no cause to remand this case

to the District Court in order to allow appellees to amend

their complaint to state a cause of action under some other

source of law.  See Cicippio, 353 F.3d at 1036.  In Cicippio,

we permitted such a remand because the state of the law at

the time of that appeal ``may have TTT misled'' the plaintiffs in

that case into assuming that the Flatow Amendment afforded

a cause of action against the foreign state defendant.  See id.

In addition, we noted that amici in that case had advanced

the possibility that an alternative source of law might supply

a viable cause of action.  See id. In this case, by contrast, our

decision in Cicippio and our order to the parties prior to oral

argument put appellees on notice of this issue.  Despite this

notice, appellees offered no alternative cause of action when

 

                               31

asked to do so at oral argument.  Accordingly, appellees' suit

must be dismissed for failure to state a cause of action.

                       III.  CONCLUSION

  We are mindful of the gravity of appellees' allegations in

this case.  That appellees endured this suffering while acting

in service to their country is all the more sobering.  Never-

theless, we cannot ignore the magnitude of their default

judgment or its impact on the United States' conduct of

foreign policy where the law is indisputably clear that appel-

lees were not legally entitled to this judgment.  We reverse

the order of the District Court denying the United States'

motion to intervene, Acree II, 276 F. Supp. 2d. 95.   We vacate

the District Court's judgment for appellees, Acree I, 271 F.

Supp. 2d 179, and dismiss appellees' suit against the Republic

of Iraq, the Iraqi Intelligence Service, and Saddam Hussein

in his official capacity as President of Iraq on the grounds

that appellees have failed to state a cause of action.

                                                     So ordered.

 

                                1

   ROBERTS, Circuit Judge, concurring in part and concurring

in the judgment:  I agree with the majority that the district

court erred in denying the United States' motion to intervene.

I also concur in the court's judgment of dismissal, but I reach

that result by a different path than the majority has taken.

In my view, Section 1503 of the EWSAA includes the authori-

ty to make Section 1605(a)(7) of the FSIA--on its face a

``provision of law that applies to countries that have supported

terrorism''--inapplicable to Iraq, and the Presidential Deter-

mination of May 7, 2003 therefore ousted the federal courts of

jurisdiction in cases that relied on that exception to Iraq's

sovereign immunity.      I also conclude that this ouster of

jurisdiction is properly applied to pending cases, and that the

district court's judgment should thus be vacated and the case

dismissed for want of jurisdiction.

A.  The Scope of Section 1503 of the EWSAA

   1.  The pertinent language of Section 1503 is straightfor-

ward, authorizing the President to make inapplicable to Iraq

Section 620A of the Foreign Assistance Act of 1961 and ``any

other provision of law that applies to countries that have

supported terrorism'' (emphasis added).       As this court re-

cently observed, ``the Supreme Court has consistently in-

structed that statutes written in broad, sweeping language

should be given broad, sweeping application.''        Consumer

Elecs. Ass'n v. FCC, 347 F.3d 291, 298 (D.C. Cir. 2003).  ``Any

other provision'' should be read to mean ``any other provi-

sion,'' not, as the majority would have it, ``provisions that

present obstacles to assistance and funding for the new Iraqi

Government.''   Slip op. at 16.

   This is particularly true given that Congress knows how to

use more limited language along the lines of the majority's

construction when it wants to.       Congress did just that in

another appropriations statute enacted just two months prior

to the EWSAA.        In that statute, Congress declared that

certain restrictions on funding to foreign countries should not

be construed to restrict assistance to nongovernmental organ-

izations in those countries, but provided that this easing of

restrictions would not apply ``with respect to section 620A of

the Foreign Assistance Act of 1961 or any comparable provi-

sion of law prohibiting assistance to countries that support

 

                                2

international terrorism.''  Consolidated Appropriations Reso-

lution, 2003, Pub. L. No. 108-7, Div. E, § 537(c)(1), 117 Stat.

11, 196 (Feb. 20, 2003) (emphases added).  The EWSAA, of

course, refers to the very same section of the Foreign Assis-

tance Act but includes substantially broader language in its

subsequent catchall phrase.  This use of different language in

two statutes so analogous in their form and content, enacted

so close in time, suggests that the statutes differ in their

meaning, and that the facially broader language was in fact

intended to have the broader scope.

  2.  The majority notes that Section 1605(a)(7) of the FSIA

already ``specifically provides that when a country, once des-

ignated as a state sponsor of terrorism, is subsequently

restored to good standing, that country is still amenable to

suit for acts that took place prior to the restoration of its

sovereign immunity.''     Slip op. at 25.   The majority then

concludes that the general power conferred by Section 1503

of the EWSAA should not be read to authorize the President

to restrike this previously-fixed balance between the interests

of a newly non-terrorist state and those of victims of terror-

ism.

  I respectfully disagree.     The majority's reading simply

assumes that the balance Congress struck in 1996 was left

untouched by the EWSAA.  In 2003, however, Congress for

the first time confronted the prospect that a friendly succes-

sor government would, in its infancy, be vulnerable under

Section 1605(a)(7) to crushing liability for the actions of its

renounced predecessor.   See U.S. DEP'T OF STATE, PATTERNS OF

GLOBAL  TERRORISM  1999, at 2 (April 2000) (noting that the list

of state sponsors of terrorism had been unchanged since

1993);  U.S. DEP'T OF STATE,  PATTERNS OF GLOBAL  TERRORISM

2001, at 63 (May 2002) (listing the same states).  Certainly

there is no evidence indicating that, when it enacted Section

1605(a)(7), Congress contemplated that a successor govern-

ment's cessation of support for terrorism would come about

under circumstances like those in Iraq.       Given the broad

language of the EWSAA and the circumstances surrounding

its enactment, it is entirely possible--and surely not ``perplex-

ing,'' slip op. at 25--that Congress in 2003 made an ad hoc

 

                                3

decision to strike a different balance in favor of the new

government of Iraq.  The whole point of Section 1503 was to

change existing rules to respond to new realities;  it is not a

compelling argument against a construction of the section to

object that it would do just that.

  3.  The majority further finds that construing the EWSAA

to authorize an ouster of jurisdiction over Iraq in Section

1605(a)(7) cases would be ``bizarre'' in light of the sunset

provisions of Section 1503.  Slip op. at 25.  `` A bsent inter-

vening events,'' the majority states, `` Section  1605(a)(7)

would once again be available as a basis of jurisdiction after

September 30, 2004.''     Id. Given the range of possibilities

contained in the majority's careful caveat, the prediction itself

is overwrought.  As one member of Congress has explained,

in relation to a different statute, `` s unsetting laws does not

mean repealing them.  Laws would only expire if Congress

failed to meet its responsibility to reexamine and renew these

statutes within a specified period of time.''  S. REP.  NO. 104-

85, at 64 (1995) (statement of Sen. Grams).

  One need look no further than the title of the EWSAA to

discern its emergency nature; a sunset provision in such a

statute is intended to buy time for fuller consideration of the

issues, rather than to establish an immutable date for the

statute's presumed extinction.     And it hardly needs saying

that the sunset provision in Section 1503 applies not only to

the proviso at issue in this case, but to all of that section.  If

the majority's prediction of abject congressional lassitude is

accurate, the Iraq Sanctions Act of 1990 will itself return to

full strength on September 30, 2004.       Nothing in the ISA

requires that Iraq be included on the State Department's list

of state sponsors of terrorism, so even an orderly de-listing of

Iraq by the executive branch under the procedures of 22

U.S.C. § 2371(c) would not alter the ISA's restrictions on

assistance.  In short, the occurrence of ``intervening events''

is far more likely than their absence.

  4.  I agree with the majority that this question of statutory

interpretation is close, and I do not suggest that the EWSAA

is entirely unambiguous.      But the plaintiffs err in their

 

                                 4

assumption that the government must somehow prove that

Congress intended the statute's broad terms to be construed

broadly.   See Appellees' Br. at 25 (``There is no indication

that the proviso in Section 1503  was intended to be a broad

tool of foreign policy involving a retroactive restoration of

sovereign immunity'');  cf. slip op. at 24 (``There is no refer-

ence in the legislative history of Section 1503  to the FSIA in

particular or to federal court jurisdiction in general.'').  The

burden is precisely the opposite:  the party seeking to narrow

the application of the statute must demonstrate that Con-

gress intended something less than what the law on its face

says.  See, e.g.,  Harrison v. PPG Industries, 446 U.S. 578,

589 (1980) (`` T he phrase, `any other final action,' in the

absence of legislative history to the contrary, must be con-

strued to mean exactly what it says'').  And as this court has

stated, ``the plainer the language, the more convincing con-

trary legislative history must be.''  Cole v. Harris, 571 F.2d

590, 597 (D.C. Cir. 1977) (internal quotation marks and cita-

tion omitted).

  Harrison in fact resembles this case in significant respects:

the Court was interpreting an amendment to the Clean Air

Act that provided for review, in the appropriate federal court

of appeals, of ``locally and regionally applicable actions'' taken

by the Environmental Protection Agency ``under specifically

enumerated provisions of the Act, and of `any other final

action of the EPA under the Act  TTT which is locally or

regionally applicable.' '' 446 U.S. at 579 (quoting 42 U.S.C.

§ 7607(b)(1) (1976 & Supp. II)) (emphasis and ellipsis in

original).  The respondents, citing the ejusdem generis canon

of interpretation (the corollary noscitur a sociis was not then

in vogue), urged the court to construe the phrase ``any other

final action'' to mean only final actions similar to those

specifically identified in the statute.  Id. at 587.  The Court

refused, noting that the ejusdem generis canon should be

applied only when the meaning of the text is uncertain and

finding ``no uncertainty in the meaning of the phrase, `any

other final agency action.' '' Id. at 588.

  Significantly, the Court also rejected the respondents' ar-

gument--based on the ``scant'' legislative history of the

 

                                 5

amendment--that it was ``unlikely TTT that Congress would

have expanded so radically the jurisdiction of the courts of

appeals, and divested the district courts of jurisdiction, with-

out some consideration and discussion of the matter.''  Id. at

591, 592.   ``In ascertaining the meaning of a statute,'' the

Court stated, ``a court cannot, in the manner of Sherlock

Holmes, pursue the theory of the dog that did not bark.''  Id.

at 592.    The Court concluded that the statutory language

meant ``exactly what it sa id , namely, any other final action.''

Id. at 589 (emphasis in original).

  More recently, the Court unanimously rejected the sugges-

tion that certain broad terms of the Federal Power Act (FPA)

should be construed narrowly in light of Congress's focused

intent to overrule one of the Court's prior cases:  `` E ven if

the prior case  catalyzed the enactment of the FPA, it  does

not define the outer limits of the statute's coverage.''  New

York v. FERC, 535 U.S. 1, 21 (2002).  In my view, Harrison

and New York illustrate the appropriate approach to a broad-

ly worded statute such as Section 1503 of the EWSAA.  The

absence of any reference to the FSIA in the legislative

history does not compel the conclusion that Section 1503 does

not reach it, and the fact that Congress may have been

focused primarily on removing barriers to the flow of aid to

Iraq does not mean that the statute refers exclusively to such

barriers.  See PGA Tour, Inc. v. Martin, 532 U.S. 661, 689

(2001) (``the fact that a statute can be applied in situations not

expressly anticipated by Congress does not demonstrate am-

biguity.   It demonstrates breadth.'') (quoting Pennsylvania

Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1998)).1 Because

the legislative history contains no ``convincing'' indication,

Cole, 571 F.2d at 597, that Congress did not intend to include

Section 1605(a)(7) of the FSIA among the ``any other'' provi-

sions that the President could render inapplicable to Iraq, I

conclude that the President was authorized to--and did, with

  1  Application of the ejusdem generis canon seems particularly

inappropriate in this case because the statute provides only one

point of reference (Section 620A of the Foreign Assistance Act)

from which to extrapolate.

 

                                   6

the Presidential Determination--oust the federal courts of

jurisdiction over Iraq in Section 1605(a)(7) cases.

   5.  I do not mean to suggest that the contrast between the

language of the Consolidated Appropriations Resolution and

that of the EWSAA is conclusive proof of Congress's intent--

but then neither is the majority's invocation of the pre-

existing balance struck in Section 1605(a)(7).         I appreciate

that my view of Congress's purpose in restriking that balance

is necessarily speculative--but then so is the majority's more

limited view of Congress's purpose to reach only aid statutes.

The majority can cite United States v. Morrow, 266 U.S. 531

(1925), for a presumption that supports its construction of the

pertinent proviso, see slip op. at 19, 22--but I can respond

with a case of similar vintage for the opposite proposition that

``a frequent use of the proviso in Federal legislation is  to

introduce  TTT new matter extending rather than limiting or

explaining that which has gone before.''           Interstate Com-

merce Comm'n v. Baird, 194 U.S. 25, 37 (1904).  And both I

and the majority (and everyone else, for that matter) are on

tenuous ground when it comes to predicting whether Con-

gress will act prior to the sunset date in Section 1503.2

  2   There is of course an established framework that governs

judicial review of statutory interpretations by agencies in the execu-

tive branch.  See Chevron USA Inc. v. Natural Res. Def. Council,

467 U.S. 837 (1984).      In such circumstances, we defer to any

reasonable construction adopted by the entity Congress has en-

trusted with administering the statute.  Id. at 843­45.  There is no

doubt that the President's interpretation of Section 1503 to cover

Section 1605(a)(7) is at least a reasonable one.  The applicability of

Chevron to presidential interpretations is apparently unsettled, see

Chamber of Commerce of the United States v. Reich, 74 F.3d 1322,

1325 (D.C. Cir. 1996); Note, Extending Chevron Deference to

Presidential Interpretations of Ambiguities in Foreign Affairs and

National Security Statutes Delegating Lawmaking Power to the

President, 86 CORNELL  L. REV. 411 (2001), but it is interesting to

note that this would be an easy case had the EWSAA provided that,

say, the Secretary of State may exercise the authority conferred

under Section 1503.  It is puzzling why the case should be so much

harder when the authority is given to the Secretary's boss.

 

                                    7

   In such circumstances I prefer to rest on the firmer

foundation of the statutory language itself.  Give me English

words over Latin maxims.            The words here--``any other

provision of law that applies to countries that have supported

terrorism''--are, even if not entirely unambiguous, plain

enough to impose a heavy burden on those who would rely on

canons, or structure, or assumed purposes to conclude the

words do not reach a law that applies, by its terms, to a

foreign state ``designated as a state sponsor of terrorism.''   28

U.S.C. §  1605(a)(7)(A).   The majority ably marshals the argu-

ments on the other side, but at the end of the day I find

greater solace in the words themselves.             See Connecticut

Nat'l Bank v. Germain, 503 U.S. 249, 253­54 (1992) (``canons

of construction are no more than rules of thumb that help

courts determine the meaning of legislation, and in interpret-

ing a statute a court should always turn first to one, cardinal

canon before all others.  We have stated time and again that

courts must presume that a legislature says in a statute what

it means and means in a statute what it says there.'').3

B.  Application to Pending Cases

   The plaintiffs argue that even if Section 1503 is properly

read to include an ouster of jurisdiction under the FSIA,

applying the statute to pending cases such as this one would

be impermissibly retroactive under Landgraf v. USI Film

Products, 511 U.S. 244 (1994).            This court reviewed the

applicability of the Landgraf framework to jurisdictional stat-

   3  The plaintiffs argue that the grant of such authority to the

President is unconstitutional in light of Clinton v. New York, 524

U.S. 417 (1998), because such a grant would empower the President

``to change the text of § 1605(a)(7) so that Iraq's immunity no

longer turns on its status at the time the act occurred'' or to

``repeal    § 1605(a)(7) solely as it relates to Iraq.''  Appellees' Br.

at 50.  The actions authorized by the EWSAA are a far cry from

the line-item veto at issue in Clinton, and are instead akin to the

waivers that the President is routinely empowered to make in other

areas, particularly in the realm of foreign affairs.       See, e.g., 22

U.S.C. § 7207(a)(3) (authorizing the President to waive a statutory

prohibition on assistance to certain countries if he determines that a

waiver is in the national security interest).

 

                                 8

utes in LaFontant v. INS, 135 F.3d 158 (D.C. Cir. 1998), and

concluded that the pertinent question--assuming Congress

had not explicitly addressed retroactivity--was whether the

statute spoke to the power of the court or instead to the

substantive rights of the parties.  Retroactive application is

permissible in the former case, but not the latter.  Id. at 163.

  We recently held that Section 1605(a)(7) of the FSIA is

solely a jurisdictional provision that creates no cause of action

and does not affect the substantive law determining the

liability of a foreign state.  Cicippio-Puleo v. Islamic Repub-

lic of Iran, 353 F.2d 1024, 1033­34 (D.C. Cir. 2004).  Render-

ing Section 1605(a)(7) inapplicable, therefore, can only affect

the power of the court and not the substantive rights of the

parties.  Application of the EWSAA to Section 1605(a)(7) is

accordingly not impermissibly retroactive with respect to

pending cases.

  Moreover, the concern animating the Supreme Court's

retroactivity jurisprudence is that ``settled expectations

should not be lightly disrupted.''  Landgraf, 511 U.S. at 265

(footnote omitted).    At the time of the primary conduct at

issue here, the jurisdictional grant of Section 1605(a)(7) did

not even exist.     We now know that the cause of action

plaintiffs invoke did not exist then or now.      Cicippio, 353

F.3d at 1033­34;  see slip op. at 27­31.  Any claim plaintiffs

could have brought was in any event always subject to

compromise or abrogation by the Executive.  See American

Ins. Ass'n v. Garamendi, 123 S. Ct. 2374, 2386­87 (2003);

Dames & Moore v. Regan, 453 U.S. 654, 686 (1981).  Under

these circumstances, there is no impediment to application of

the normal rule that provisions addressing the power of a

court be given retroactive effect.

                               * * *

  For the foregoing reasons, I would hold that Section 1503

of the EWSAA and the Presidential Determination deprived

the courts of jurisdiction over suits against Iraq under Sec-

tion 1605(a)(7), and that the new jurisdictional rule applies to

pending cases, including this one.  I therefore agree that the

 

                              9

judgment of the district court should be vacated and the case

dismissed.

 

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