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REIN v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA

February 26, 1998

DENICE H. REIN, individually and as Executrix of the Estate of MARK ALAN REIN, deceased, et al., Plaintiffs,
v.
SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, THE LIBYAN EXTERNAL SECURITY ORGANIZATION, a/k/a JAMAHIRIYA SECURITY ORGANIZATION, a/k/a JSO, LIBYAN ARAB AIRLINES, LAMEN KHALIFA FHIMA, a/k/a A AL AMIN KHALIFA FHIMA, a/k/a MR. LAMIN, and ABDEL BASSET ALI AL-MEGRAHI, a/k/a ABDEL BASET ALI MOHMED, a/k/a ABDEL BASET ALI MOHMED AL MEGRAHI, a/k/a MR. BASET, Defendants. JOHN THOMAS BACCIOCHI, individually and as Administrator of the Estate of CLARE LOUISE BACCIOCHI, deceased, et al., Plaintiffs, v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, et al., Defendants. NORMA R. WAGNER, individually and as Executrix of the Estate of RAYMOND R. WAGNER, deceased, et al., Plaintiffs, v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRYA, et al., Defendants. M. VICTORIA CUMMOCK, individually and as personal representative of the Estate of JOHN CUMMOCK, deceased, et. al., Plaintiffs, v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRYA, et al., Defendants. PAUL S. HUDSON, as personal representative of the Estate of MELINA K. HUDSON, deceased, Plaintiff, v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRYA, et al., Defendants. JANE DAVIS, as personal representative of the Estate of Shannon Davis, deceased, et al., Plaintiffs, v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, et al., Defendants. ELIZABETH PURTELL, individually and as representative of the Estate of MICHAEL STINNETT, deceased, Plaintiff, v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, et al., Defendants. LOULIE D. CANADY, individually and as Administratrix of the Estate of VALARIE CANADY, deceased, Plaintiff, - against - SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, et al., Defendants. BRENDA CANITZ, individually and as Representative of the Estate of MILUTIN VELIMIROVICH, deceased, et al., Plaintiffs, v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRYA, et al., Defendants.



The opinion of the court was delivered by: PLATT

 PLATT, District Judge.

 Two motions are presently before the Court: (1) defendants' Motion to dismiss for lack of subject-matter and personal jurisdiction and for failure to state claims upon which relief can be granted; and (2) plaintiffs' Motion for an order prohibiting defendants from directing mailings or other communications to plaintiffs or their families. After briefly reviewing the background relevant to considering both of these motions, we discuss the merits of each in turn.

 BACKGROUND

 In 1994, some of these plaintiffs (representatives and survivors of victims who died in the destruction and crash of Pan Am Flight 103 in Lockerbie, Scotland, in December 1988) brought an action in this Court against The Socialist People's Libyan Arab Jamahiriya, the Libyan External Security Organization, the Libyan Arab Airlines (hereinafter collectively referred to as "Libya"), and Messrs. Lamen Khalifa Fhima and Abdel Basset Ali Al-Megrahi (hereinafter the "individual defendants") on the ground that Libya and its agents were responsible for the plane's destruction and the resulting loss of life. Plaintiffs sought to vest subject-matter jurisdiction in the Court under the Foreign Sovereign Immunities Act of 1976 ("FSIA"). On motion by Libya, this Court dismissed the action for lack of subject-matter jurisdiction under the FSIA as enacted prior its amendment in 1996. Smith v. Socialist People's Libyan Arab Jamahiriya, 886 F. Supp. 306 (1995), aff'd, 101 F.3d 239 (2d Cir. 1996), cert. denied, 137 L. Ed. 2d 714, 117 S. Ct. 1569 (1997).

 After Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which inter alia, amended the FSIA, the present plaintiffs commenced a new action in this Court seeking essentially the same relief as was sought in the prior action.

 I.

 In its reply brief Libya *fn1" says that it "does not claim that it has a constitutional right to sovereign immunity." (Emphasis in original.) This, of course, is something of a change from what we understood to be one of its original claims.

 In broad form, Libya's claim is stated to be that "it possesses certain rights under international law." (Emphasis in original.)

 Libya starts from the premise that the plaintiffs and the United States have mistaken "which branch of the United States Government possesses authority to determine the subject matter jurisdiction of federal courts." This, of course, is a false premise.

 Subject matter jurisdiction is bestowed on the federal courts by our Constitution. Article III makes it abundantly clear that

 
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" [and] "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . to Controversies between . . . a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

 U.S. Const. art. III, §§ 1, 2.

 From its above-stated false premise, Libya claims that because Congress enacted a law of the United States, i.e., the FSIA, which prescribed that the Court's "jurisdiction" is to be determined in accordance with designations made by the Secretary of State, the FSIA is unconstitutional. But, that is not what the FSIA provides. Rather, the FSIA says that in cases involving potential sovereign immunity defenses, the Courts of the United States should decide the same "in conformity with the principles set forth in this chapter." 28 U.S.C. § 1602. And, that

 
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case--. . . in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, [or] hostage taking[,] . . . except that the court shall decline to hear a claim under this paragraph-- (A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act (50 U.S.C. App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. § 2371) at the time the act occurred . . . .

 28 U.S.C. § 1605(a)(7).

 Contrary to Libya's claim, this statute merely confirms the power (jurisdiction) of the Courts of the United States to hear and determine all the controversies between citizens of the United States and foreign States and provides that the Courts shall "decline" to hear claims against nations not designated as "terrorist" states but quite apparently leaves open, i.e., ...


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