UNITED
STATES DISTRICT COURT
FOR THE
_______=
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)
)
HAIDER AZIZ
AL-SAYER JASSIM &nbs=
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ALI RASHEED, et al., =
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)
)
Plainti= ffs, &= nbsp; )<= o:p>
v. &=
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p; ) Civil Action No. 04-1862 (EGS)
)
SADDAM HUSS=
EIN,
et al., &=
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Defenda=
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&nb=
sp; PRELIMINARY MOTION OF DEFENDANT SAD=
DAM
HUSSEIN
&=
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p; &=
nbsp; &nbs=
p; INTRODUCTORY STATEMENT
Defenda=
nt
Saddam Hussein, by the through undersigned counsel, submits this motion
pursuant to Rule 12(b) of the Federal Rules of Civil Procedure and the
Court’s equitable powers. In
the instant motion, Defendant Saddam Hussein moves to dismiss for insuffici=
ency
of process and of service of process,
and for lack of personal jurisdiction, to request the Court for an O=
rder
to permit Giovanni Di Stefano, Mr. Hussein’s lawyer, to have reasonab=
le
access to meet and confer with Mr. Hussein, in private, to advise him of the
existence of this civil action and to take instructions from Mr. Hussein to
present whatever objections he might raise to this pending civil action, to
permit Mr. Hussein to receive whatever constructive notice plaintiffs have
caused to be printed in the Iraqi newspapers Azzaman and Al Sabah, and an O=
rder
for a stay of Mr. Hussein’s execution for twelve consecutive weeks or
until further notice to allow Defendant Saddam Hussein to receive proper no=
tice
and to defend against the this civil action. In support of this motion, Defenda=
nt
Saddam Hussein states the following:
&=
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nbsp; MATERIAL FACTS
The Cou=
rt has
permitted the plaintiffs to serve process on Defendant Saddam Hussein throu=
gh
one of his lawyers, Giovanni Di Stefano, and, based on his own knowledge, M=
r.
Di Stefano has provided his Declaration concerning the following facts mate=
rial
to this motion:
1. =
Defendant
Saddam Hussein has been incarcerated in
2. =
The
United States government maintains physical custody of Mr. Hussein as a
prisoner of war under the Geneva Conventions while he is facing Iraqi crimi=
nal
charges, and any access to him by even his lawyers is at =
the
discretion of the United States Department of State; his lawyers in the=
past
have had very limited access to Mr. Hussein, and recently have had no acces=
s to
Mr. Hussein to advise him of the existence of the instant civil action or h=
ow
to proceed with his defense.
3. =
Mr.
Di Stefano is not an agent of Defendant Saddam Hussein for service of proce=
ss
and has no authority from Mr. Hussein to accept service on his behalf of th=
is
complaint.
4. =
Defendant
Saddam Hussein has no access to any newspapers and has no regular access to=
any
other public media, including television and radio.
5. =
The
acts complained of in plaintiffs’ complaint occurred while Mr. Hussein
was the President and political leader of
6. =
Plaintiffs
have not served Defendant Saddam Hussein as required by the Foreign Soverei=
gn
Immunities Act and the Hague Convention on Service Abroad.
&=
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nbsp; ARGUMENT
A. Insufficiency
of Process and Service of Process and Lack of Personal Jurisdiction
The For=
eign
Sovereign Immunities Act (FSIA) is the sole basis for jurisdiction over a
foreign state in
The FSIA
Requires Strict Compliance with
The Hag=
ue
Convention for Service Abroad
Section
1608(a) of the FSIA sets forth the "exclusive procedures" for ser=
ving
foreign sovereigns. Transa=
ero
Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148,154 (D.C. Cir. 1994). The
statute spells out those "exclusive procedures" step by step,
providing that service on a foreign state may be made: (1) by delivery of a
copy of the summons and complaint in accordance with any special arrangement
for service between the plaintiff and the foreign state or political
subdivision ; or (2) if no special arrangement exists, by delivery of a cop=
y of
the summons and complaint in accordance with an applicable international
convention on service of judicial documents; or (3) if service cannot be ma=
de
under paragraphs (1) or (2), by sending a copy of the summons and complaint=
and
a notice of suit, together with a translation of each into the official
language of the foreign state, by any form of mail requiring a signed recei=
pt,
to be addressed and dispatched by the clerk of the court to the head of the
ministry of foreign affairs of the foreign state concerned, or (4) if servi=
ce
cannot be made within 30 days under paragraph (3), by sending two copies of=
the
summons and complaint and a notice of suit to the Secretary of State in
Washington, District of Columbia and the Secretary shall transmit one copy =
of
the papers through diplomatic channels to the foreign state. 28 U.S.C § 1608(a).
These
provisions are "hierarchical, such that a plaintiff must attempt the
methods of service in the order they are laid out in the statute. In this case, the defendants have =
made
no "special arrangement for service" under Section 1608(a)(1). Un=
der
Section 1608(a)(2), however, there is clearly an "applicable internati=
onal
convention," the Hague Convention. Therefore, plaintiffs must serve their complaint in accordan=
ce
with the Convention. Only if =
such
service proved impossible might plaintiffs attempt the other methods of ser=
vice
contemplated by Sections 1608(a)(3) and (4). Plaintiffs have not used any of th=
ese
methods of service.
The Hag=
ue
Convention is a treaty negotiated by sovereign nations to determine when th=
ey
will permit other countries to intrude on their sovereignty by effecting
service within their territory. Therefore, courts have insisted upon
"strict adherence" to the procedures the Convention mandates where
the defendants are sovereign states. Transaero, 30 F.3d at 154 . In
this Circuit and others, courts cannot ignore defective service, even where=
the
foreign state may be aware of the lawsuit.=
The FSIA
Requires The Same Strict Compliance
for Off=
icial
Acts of Government Leaders
This ci=
rcuit
has insisted on equally strict compliance in actions against core ministrie=
s of
sovereign State signatories.
Whether a foreign entity triggers the duty of "strict
compliance" under the FSIA turns on whether it is "an integral pa=
rt
of a foreign state's political structure, [or rather] an entity whose struc=
ture
and function is predominantly commercial." Transaero, 30 F.3d at 151 (quotations omitted). The D.C. Circuit has
confirmed that "armed forces are as a rule so closely bound up with the
structure of the state that they must in all cases be considered as the
‘foreign state’ itself."
The sam=
e is
true for Defendant Saddam Hussein as President and Commander and Chief of t=
he
Iraqi Armed Forces and security and intelligence services. Plaintiffs have sued Mr. Hussein f=
or
acts committed in his official capacity as President and Commander in Chief=
of
As a ma=
tter
of law and logic, individuals acting in their official capacities receive t=
he
same protections under the FSIA that the State would enjoy for its official
acts. Jungquist v. Nahyan<=
/u>,
115 F.3d 1020, 1027 (D.C. Cir. 1997); El-Fadl
v. Cent. Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996) (FSIA applie=
d to
acts by Deputy Governor of Jordan's Central Bank in his official capacity);=
El-Hadad
v. Embassy of the UAE, 69 F. Supp. 2d 69, 73 (D.D.C. 1999), rev 'd in part on other grounds, 216 F.3d 29 (D=
.C.
Cir. 2000) ("the scope of sovereign immunity for a foreign state exten=
ds
to . . . individuals committing acts within their official
capacities"); Herbage=
v.
Meese, 747 F. Supp. 60, 66(D.D.C . 1990), aff'd, 946 F.2d 1564 (=
D.C.
Cir. 1991) ("the sovereign immunity granted in the FSIA does extend to
natural persons acting as agents of the sovereign"); see als=
o
Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095, 1103 (9th Cir. 199=
0)
(collecting cases).
Nor can=
the
plaintiffs negate
Plainti=
ffs
have not complied with the Hague Convention
The
"primary innovation of the [Hague] Convention is that it requires each
state to establish a central authority to receive requests for service of
documents from other countries”.&nbs=
p;
Volkswagenwerk, 486
The Cen=
tral
Authority must then certify that the documents have been served or state the
reasons that prevented service. Id,
Art. 6. Here, there is=
no
evidence that plaintiffs even attempted service through the Central Authori=
ty
mechanism. Exhibit, Declarati=
on of
Giovanni Di Stefano. Nor can
plaintiffs establish (as it is their burden to establish) that they served
process through any other mechanism approved by the Hague Convention, such =
as
diplomatic or consular channels.
Hague Convention, arts. 8-9; Exhibit, Declaration of Giovanni Di
Stefano. Plaintiffs cannot
demonstrate that any of their agents personally delivered a copy of the sum=
mons
and complaint to Defendant Saddam Hussein or to an agent authorized by Defe=
ndant
Saddam Hussein to accept service of process. Exhibit, Declaration of Giovanni Di
Stefano. Indeed, the plaintif=
fs are
unable to establish more than the mailing of an English copy of the complai=
nt
to Giovanni Di Stefano, an Italian lawyer on Defendant Saddam Hussein’=
;s
criminal defense team. Exhibi=
t,
Declaration of Giovanni Di Stefano.
Because=
the
Court Lacks Subject Matter
Jurisdi=
ction,
It Also Lacks Personal
Jurisdi=
ction
Pursuant to 28 U.S.C. § 1330
Even if
plaintiffs had perfected service on defendant Saddam Hussein this suit could
not proceed. The Supreme Cour=
t has
held that the FSIA grants broad immunity to foreign states and their
ministries. The plaintiffs ha=
ve not
established any applicable exception to this immunity. Moreover, this immunity extends to=
Defendant
Saddam Hussein, President of Iraq acting on behalf of the State of Iraq.
Even th=
ough
the plaintiffs dress their arguments in the garb of the Alien Tort Claims A=
ct,
28 U .S .C. § 1350 ("ATCA"), and the Torture Victim Protecti=
on
Act of 1991 (“TVPA”), 28 U.S.C. § 1350 note, this does not
void the immunity protecting foreign officials from their public rather than
private acts. Finally, indepe=
ndent
of the shield of the FSIA, Defendant Saddam Hussein has absolute immunity f=
rom
suit as the recognized head of the government of
The Sup=
reme
Court has held that "a foreign state is presumptively immune from the
jurisdiction of
These
principles do not disappear merely because plaintiffs allege violations of
international law under the ATCA and TVPA.=
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 4=
28,
436 (1989) ("Immunity is granted in those cases involving alleged
violations of international law that do not come within one of the FSIA's
exceptions"); Al Odah v. United States, 321 F.3d 1134, 1149 (D.=
C.
Cir. 2003) (Randolph, J., concurring) (the ATCA "does not itself waive
sovereign immunity"); Trajano v. Marcos (In re Estate of
Ferdinand E. Marcos Human Rights Litigation), 978 F.2d 493, 497 (9th Ci=
r.
1992) ("The FSIA trumps the [ATCA] when a foreign state or . . . an
individual acting in his or her official capacity is sued"); DeNegr=
i v.
Republic of Chile, No. Civ.=
A. 86-3085,1992 WL 91914, at *2 (D.D=
.C.
Apr. 6, 1992) ("There is no generalized international law exception to
sovereign immunity under the FSIA").&=
nbsp;
Plaintiffs bear the burden of "producing evidence"
establishing an applicable exception to immunity. Hwang Geum Joo v.
The
plaintiffs have not identified anything
The Cou=
rt
must dismiss plaintiffs' claims against Defendant Saddam Hussein, because he
has been sued in his official capacity as the President of Iraq. Sovereign immunity protects foreign
officials acting on behalf of their governments, just as it would protect t=
hose
governments from suit based on the officials’ acts. Jungquist, 115
F .3d at 1027; El-Fadl, 75 F.3d at 671; El-Hadad, 69 F . Supp=
. 2d
at 73; Herbage, 747 F. Supp . at 66; see also Chuid=
ian
v . Philippine Nat'l Bank, 912 F .2d 1095, 1103 (9th Cir . 1990)
(collecting cases). This is a=
s true
in the ATCA and TVPA context as in all others. See, e.g., Trajano=
,
978 F.2d at 497. The FSIA tru=
mps
the Alien Tort Statute when .
. . an individual acting in his or her
official capacity is sued."); Lafontant v. Aristide, 844 F Supp.
128, 139 (E.D.NSY. 1994) ("Because . . . the TVPA applies to individua=
ls
while the FSIA applies to states and state actors, the TVPA will only apply=
to
state actors when they act in their individual capacity . . ..").
The
plaintiffs are suing Defendant Saddam Hussein in his official capacity for =
acts
committed as the President of Iraq.
The plaintiffs allege in their complaint Mr. Hussein’s culpabi=
lity
and command responsibility; their complaint does not allege a single act
purportedly taken by Defendant Saddam Hussein in his personal or private
capacity. Thus, Defendant Sad=
dam
Hussein is entitled to the same immunity as the Government of Iraq.
On a mo= tion to dismiss based on sovereign immunity, courts are not bound by a plaintiff’s tactical characterization that acts were taken in an "individual" capacity. Rather, courts have a duty to "consid= er whether an action against the foreign official is merely a disguised action against the nation that he or she represents ." Park v. Shin, 3= 13 F.3d 1138, 1144 (9th Cir. 2002). Courts in this Circuit have not hesitated = to disregard plaintiffs' labels that do not fit the facts alleged. Although plaintiff alleged actions were undertaken "in an individual capacity," the D.C. Circuit rejected this label and confirmed the officials’ immunity, because "the only evidence in the record&qu= ot; showed that the officials acted on behalf of the sovereign and not in their purely personal capacities. <= u>El-Fadl v. Central Bank of Jordan, = 75 F.3d at 670-71; see, Herbage v. Meese, 747 F.Supp. at 65-6. <= o:p>
The
plaintiffs’ allegations cannot rob defendant Saddam Hussein of the
sovereign immunity that protects his service to the Iraqi Government. The
plaintiffs’ allegations that they suffered injuries during military or
security operations does not alter this legal conclusion. See, e.g., Saltany v. Rea=
gan,
702 F.Supp. 319, 321 (D.D.C . 1988) (finding it "manifest" that
"civilian or military officials of the U.S. Government who are alleged=
to
have planned and/or executed the air strikes on Libya ordered by the Presid=
ent
. . . did so in their official capacities, and thus were entitled to immuni=
ty
in ATCA suits alleging injuries to civilians), aff'd in relevant par=
t, rev
'd in part, 886 F.2d 438 (D.C. Cir. 1989).
Whether=
an
individual was acting in an official capacity turns "on the nature of =
the
individual's alleged actions, rather than the alleged motives underlying
them.” Jungquist=
, 115
F.3d at 1028. The Courts in t=
his
Circuit consider whether a defendant's activities were "personal or
private" or "undertaken only on behalf of the sovereign.” <=
u>El-Fadl, 75 F.3d at 671. In other words,
immunity is warranted when the acts in question were "sovereign or
governmental in nature.” Herbage,
747 F. Supp. at 67. Whether
defendants violated their own state's law in carrying out their duties is
irrelevant to this determination.
The FSIA
demands proper service and subject matter jurisdiction; where a defendant is
entitled to immunity under the FSIA and service and service of process are =
insufficient,
there is no subject matter jurisdiction, which also deprives the Court of
personal jurisdiction over the defendant.&=
nbsp;
28 U.S.C. § 1330(b). &nbs=
p;
Consequently, there is no personal jurisdiction of Defendant Saddam
Hussein in this civil action, and even the limited appearance for the insta=
nt
motion of counsel for the defendant does not confer subject matter or personal jurisdiction in this Court. 28 U.S.C. § 1330(c). =
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B. Request
for Order to Meet and Confer and Order to Assure Constructive Notice
Defenda=
nt
Saddam Hussein requests the Court to permit, by Order, Mr. Hussein’s
attorney, Giovanni Di Stefano to meet and confer with Defendant Saddam Huss=
ein,
in private. to notify him of the existence of the instant civil action agai=
nst
him and to advise him as his attorney and to receive whatever instructions
Defendant Saddam Hussein has concerning this civil action. To confirm knowledge of the existe=
nce of
this civil action, Mr. Hussein also requests, by Order, that he be allowed
access for twelve weeks to publications in Iraq that will advise him by
constructive notice of the civil action against him and what actions he must
take to preserve any objections he has to the lawsuit.
We subm=
it
that fairness and due process require proper and sufficient notice and an
opportunity to defend himself and his property. Plaintiffs have filed claims=
for
compensatory and punitive damages, claims on the property of Defendant Sadd=
am
Hussein. The Fourteenth
Amendment Due Process Clause, and the comparable Due Process Clause of the
Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954), require that “deprivation of=
. . .
property by adjudication be preceded by notice and an opportunity for heari=
ng
appropriate to the nature of the case.” Mullane v. Central Hanover Bank=
&
Trust Co., 339
Neither
providing service of process on Mr. Hussein’s criminal lawyer nor
constructive service by publication are reasonably calculated to acquaint
Defendant Saddam Hussein with the nature and existence of this civil action
pending against him nor to provide an opportunity to present his
objections. He has no way of
learning about the existence of the litigation unless the Court orders that=
his
lawyer be allowed to meet and confer with him or that constructive service =
be
validated by permitting Mr. Hussein access for twelve consecutive weeks to =
the
Iraqi newspapers Azzaman and Al Sabah used by the plaintiffs for notice, or
both. The due process require=
ment
of adequate notice to interested parties who are known or reasonably
ascertainable cannot be fulfilled by the complete lack of notice Mr. Hussein
has so far received. Pope<=
/u>, id.
An adve=
rse
affect on a cause of action is a species of property protected by the Due
Process Clause.
Defenda=
nt
Saddam Hussein requests a stay of execution for a minimum of twelve weeks or
until further notice of the Court to allow Mr. Hussein to receive proper no=
tice
and to defend against the instant civil action. Otherwise a dismissal of this
civil action would be required to provide Mr. Hussein with his right of due
process in this Court.
Under t=
he
Court’s equitable powers, the Court may order a stay of execution.
CONCLUSION
WHEREFO=
RE, it
is respectfully submitted that Defendant Saddam Hussein’s motion be
granted dismissing this civil action against Mr. Hussein, or, in the alternative, that the Court order that Mr.
Hussein’s lawyer, Giovanni Di Stefano, be permitted to meet and confer
with Mr. Hussein in private, that Mr. Hussein be provided with the Iraqi
newspapers Azzaman and Al Sabah that contain constructive notice of this ci=
vil
action, and that a stay of Mr. Hussein’s execution be entered for at
least twelve weeks or until further Order of this Court. &n=
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; &n=
bsp; =
; &n=
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; =
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Dated: December 18, 2006
<=
span
style=3D'font-family:Shruti;mso-bidi-font-family:"Times New Roman"'>
<=
span
style=3D'font-family:Shruti;mso-bidi-font-family:"Times New Roman"'> =
/s/_____________
Nicholas
Gilman, DC# 177725
John Gr=
een,
DC# 476592
GILMAN =
&
ASSOCIATES
Tel:
(202)547-9080
Giovann=
i Di
Stefano
Studio =
Legale
Internazionale
Largo G,
Tartini 3-4
00197
Tel:
39-06-85203516
&nb=
sp;
[1] &= nbsp; This is= also true of service on its government leaders for official acts, as discussed below.
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