Acree v. Republic of Iraq

• Court: District Court, District of Columbia
• Decided: September 18, 2009
• Docket: Civil Action No. 2002-0632
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_____________________________ ) CLIFFORD ACREE, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 02-632 (RWR) ) REPUBLIC OF IRAQ, et al., ) ) Defendants. ) _____________________________ )

MEMORANDUM ORDER

Plaintiffs, former prisoners of war in Iraq during the Gulf

War and their family members, move under § 1083(c) of the

National Defense Authorization Act for Fiscal Year 2008 (“NDAA”),

Pub. L. No. 110-181, 122 Stat. 338, to reinstate the final

judgment issued on July 7, 2003 against defendants Republic of

Iraq, Saddam Hussein, and the Iraqi Intelligence Service.

Plaintiffs’ complaint alleged that jurisdiction over the Iraqi

defendants was proper under 28 U.S.C. § 1607(a)(7), the terrorism

exception of the Foreign Sovereign Immunities Act (“FSIA”).

After the Iraqi defendants defaulted, a final default judgment

was entered against them. On appeal brought by the United

States, as an intervenor-defendant, the D.C. Circuit held that

the plaintiffs failed to state a cause of action against the

Iraqi defendants, vacated the judgment entered against the - 2 -

defendants, and dismissed the plaintiffs’ complaint. Acree v.

Republic of Iraq, 370 F.3d 41, 60 (D.C. Cir. 2004).

The plaintiffs allege that Executive Order 13,491, 74 Fed.

Reg. 4893 (Jan. 22, 2009)1 rescinds President Bush’s waiver of

the provisions of § 1083 with respect to Iraq and authorizes the

district court to reinstate judgment under § 1083(c). The United

States and the Iraqi defendants contend that the district court

lacks jurisdiction over the plaintiffs’ motion. They argue in

the alternative that to the extent that there is jurisdiction to

consider the plaintiffs’ motion, Executive Order 13,491 had no

effect on President Bush’s waiver of § 1083 with respect to

claims against Iraq and the plaintiffs are not entitled to

relief.2

“Section 1083 of the NDAA amended the terrorism exception to

immunity [under] the FSIA, creating a new § 1605A.” (Pls.’ Mot.

1 Executive Order 13,491, entitled “Ensuring Lawful Interrogations,” sets “[s]tandards and [p]ractices” for interrogation of persons in the custody of the United States in armed conflicts and rescinds Executive Order 13,440, 72 Fed. Reg. 40,707 (July 20, 2007) and “[a]ll executive directives, orders, and regulations inconsistent with” Executive Order 13,491. 74 Fed. Reg. at 4893. 2 Executive Order 13,491 also authorizes “the Attorney General [to] provide guidance about which directives, orders, and regulations are inconsistent with this order.” 72 Fed. Reg. at 4893. In its opposition to the plaintiffs’ motion, the United States alleges that “it is the position of the United States and the Department of Justice that President Bush’s waiver of Section 1083’s provisions is unaffected by Executive Order 13,491.” (United States’ Opp’n at 5 n.2.) - 3 -

under § 1083(c) of the NDAA (“Pls.’ Mot.”) at 2.) Section

1083(c) provides that, for eligible plaintiffs, “on motion made

by plaintiffs’ to the United States district court where the

action was initially brought,” a judgment entered under 28 U.S.C.

§ 1605(a)(7) “shall be given effect as if the action had

originally been filed under” 28 U.S.C. § 1605A(c). The NDAA also

expressly provided that the President could “waive any provision

of [§ 1083] with respect to Iraq” under certain conditions.

§ 1083(d)(1), 122 Stat. at 343-44. On January 28, 2008,

President Bush exercised his authority under § 1083(d) to “waive

all provisions of section 1083 of the [NDAA] with respect to Iraq

and any agency or instrumentality thereof.” Presidential

Determination No. 2008-9, 73 Fed. Reg. 6571 (Feb. 5, 2008).

Under the longstanding mandate rule, “[t]he district court

ha[s] no ‘power or authority to deviate from the [court of

appeals’] mandate.’” Role Models America, Inc. v. Geren, 514

F.3d 1308, 1311 (D.C. Cir. 2008) (quoting Briggs v. Pa. R.R. Co.,

334 U.S. 304, 306 (1948)). Because the court of appeals has

vacated the judgment and dismissed the complaint without

remanding it back to the district court, see Acree, 370 F.3d at

60, this court has no jurisdiction to entertain the plaintiff’s

motion to reinstate the judgment. Thus, the plaintiffs’ motion

will be denied for lack of jurisdiction. Accordingly, it is

hereby - 4 -

ORDERED that the plaintiffs’ motion [54] under § 1083 of the

NDAA be, and hereby is, DENIED.

SIGNED this 18th day of September, 2009.

/s/ RICHARD W. ROBERTS United States District Judge