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In pro se action against Libya by alleged victim of hostage-taking and torture, D.C. Circuit holds that harshness of confinement did not amount to torture, and that plaintiff's offer to arbitrate was timely under FSIA but remands to give plaintiff chance to amend complaint to state valid hostage-taking claim.

In February 1987, Sandra Jean Simpson (a U.S. citizen) and her husband (a permanent U.S. resident) were passengers on the cruise ship Carin II in the Mediterranean. A storm damaged the ship and it limped into the Port of Benghazi, Libya. A few days later, Libyan officials boarded the cruise ship and "forcibly removed" the passengers and crew. Libya confined the Simpsons separately from the others for several months. Libya kept Sandra for three months and her husband for seven.

In 2000, Simpson sued Libya pro se seeking damages for alleged hostage-taking and torture. In 2001, after obtaining a default judgment, Simpson mailed Libya an offer to arbitrate. The district court re-opened the case and let Libya file motions to dismiss for lack of subject matter and personal jurisdiction, and for failure to state a viable claim for relief. The district court denied the motions. Libya brought the present interlocutory appeal under the collateral-order doctrine to challenge the adverse rulings below.

The U.S. Court of Appeals for the D.C. Circuit affirms in part and vacates in part. In particular, the Court reverses the torture claim and remands for dismissal. As to the hostage-taking claim, the Court remands to allow Simpson to cure the deficiencies in her complaint.

Under Section 1605(a)(7) of the Foreign Sovereign Immunities Act (FSIA), foreign states which the U.S. has designated as state sponsors of terrorism (as in the case of Libya) are not immune from damage actions for personal injury or death resulting from activities such as torture and hostage-taking. The Act also requires that the claimant afford the foreign state a reasonable chance to arbitrate the claim under accepted international rules of arbitration.

Libya first contended that the lower court lacked subject matter jurisdiction. "With regard to the timeliness of the offer to arbitrate, Libya argues that because this is a jurisdictional matter, we should require that the offer to arbitrate be made prior to (or at least concurrent with) the filing of the complaint."

"Section 1607(a)(7), however, sets no rule requiring that the offer to arbitrate be made before the filing of a complaint. It merely requires that the offer be made by such time as to allow Libya a 'reasonable opportunity' to arbitrate. ... In this instance, Simpson transmitted her offer to arbitrate to Libya in April of 2001. Libya received the offer almost two months before responding to Simpson's complaint with the motions to dismiss presently under review. ..."

"We cannot say that the timing of the offer is such that Simpson has not afforded Libya a 'reasonable opportunity' to arbitrate. This is especially true given that a plaintiff may amend a complaint to remedy a jurisdictional defect even as late as the appellate stage of proceedings. 28 U.S.C. Section 1653 ..." [Slip op. 5-6] In sum, there is no jurisdictional bar to Simpson's claim.

The Court, however, does hold that Simpson failed to state valid claims of torture and hostage-taking. The interrogations and death threats that she allegedly suffered are certainly cruel but are not so outrageous so as to constitute "torture" within the meaning of the law. See Torture Victim Protection Act of 1991 (TVPA), 28 U.S.C. Section 1350, Article 3.

In addition, Simpson failed to allege Libya's underlying purpose for detaining her in terms that satisfy the FSIA. The Court remands the case, however, to give Simpson a chance to amend her complaint to allege that Libya intended to compel action or inaction by a third party as a condition of her release.

Citation: Simpson v. Socialist People's Libyan Arab Jamahiriya, 326 F.3d 230 (D.C. Cir. 2003).
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Publication:International Law Update
Date:May 1, 2003
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