II 109th CONGRESS 1st Session S. 1257 IN THE SENATE OF THE UNITED STATES June 16, 2005 Mr. Specter (for himself and Mr. Lautenberg) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 28, United States Code, to clarify that persons may bring private rights of actions against foreign states for certain terrorist acts, and for other purposes.

1.

Clarification of private right of action against terrorist states; damages

(a)

Right of action

Section 1605 of title 28, United States Code, is amended— (1)in subsection (f), in the first sentence, by inserting or (h) after subsection (a)(7); and (2)by adding at the end the following: (h)

Certain actions against foreign states or officials, employees, or agents of foreign states

(1)

Cause of action

(A)

Cause of action

A foreign state designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or an official, employee, or agent of such a foreign state, shall be liable to a national of the United States (as that term is defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)) or the national’s legal representative for personal injury or death caused by an act of that foreign state, or by that official, employee, or agent while acting within the scope of his or her office, employment, or agency, for which the courts of the United States may maintain jurisdiction under subsection (a)(7) for money damages. The removal of a foreign state from designation as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or other provision of law shall not terminate a cause of action arising under this subparagraph during the period of such designation. (B)

Discovery

The provisions of subsection (g) apply to actions brought under subparagraph (A). (C)

Nationality of claimant

No action shall be maintained under subparagraph (A) arising from an act of a foreign state or an official, employee, or agent of a foreign state if neither the claimant nor the victim was a national of the United States (as that term is defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)) when such acts occurred. (2)

Damages

In an action brought under paragraph (1) against a foreign state or an official, employee, or agent of a foreign state, the foreign state, official, employee, or agent, as the case may be, may be held liable for money damages in such action, which may include economic damages, damages for pain and suffering, or, notwithstanding section 1606, punitive damages. In all actions brought under paragraph (1), a foreign state shall be vicariously liable for the actions of its officials, employees, or agents. (3)

Appeals

An appeal in the courts of the United States in an action brought under paragraph (1) may be made— (A)only from a final decision under section 1291 of this title, and then only if filed with the clerk of the district court within 30 days after the entry of such final decision; and (B)in the case of an appeal from an order denying the immunity of a foreign state, a political subdivision thereof, or an agency of instrumentality of a foreign state, only if filed under section 1292 of this title. . (b)

Conforming amendment

Section 589 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997, as contained in section 101(a) of division A of Public Law 104–208 (110 Stat. 3009–172; 28 U.S.C. 1605 note), is repealed.

2.

Property subject to attachment execution

Section 1610 of title 28, United States Code, is amended by adding at the end the following: (g)

Property interests in certain actions

(1)

In general

A property interest of a foreign state, or agency or instrumentality of a foreign state, against which a judgment is entered under subsection (a)(7) or (h) of section 1605, including a property interest that is a separate juridical entity, is subject to execution upon that judgment as provided in this section, regardless of— (A)the level of economic control over the property interest by the government of the foreign state; (B)whether the profits of the property interest go to that government; (C)the degree to which officials of that government manage the property interest or otherwise control its daily affairs; (D)whether that government is the real beneficiary of the conduct of the property interest; or (E)whether establishing the property interest as a separate entity would entitle the foreign state to benefits in United States courts while avoiding its obligations. (2)

United States sovereign immunity inapplicable

Any property interest of a foreign state, or agency or instrumentality of a foreign state, to which paragraph (1) applies shall not be immune from execution upon a judgment entered under subsection (a)(7) or (h) of section 1605 because the property interest is regulated by the United States Government by reason of action taken against that foreign state under the Trading With the Enemy Act or the International Emergency Economic Powers Act. .

3.

Appointment of special masters

(a)

Victims of crime act

Section 1404C(a)(3) of the Victims of Crime Act of 1984 (42 U.S.C. 10603c(a)(3)) is amended by striking December 21, 1988, with respect to which an investigation or and inserting October 23, 1983, with respect to which an investigation or a civil or criminal. (b)

Justice for marines

The Attorney General shall transfer, from funds available for the program under sections 1404C of the Victims of Crime Act of 1984 (42 U.S.C. 10603c), to the Administrator of the United States District Court for the District of Columbia such funds as may be required to carry out the orders of United States District Judge Royce C. Lamberth appointing Special Masters in the matter of Peterson, et al. v. The Islamic Republic of Iran, Case No. 01CV02094 (RCL).

4.

Lis pendens

(a)

Liens

In every action filed in a United States district court in which jurisdiction is alleged under subsection (a)(7) or (h) of section 1605 of title 28, United States Code, the filing of a notice of pending action pursuant to such subsection, to which is attached a copy of the complaint filed in the action, shall have the effect of establishing a lien of lis pendens upon any real property or tangible personal property located within that judicial district that is titled in the name of any defendant, or titled in the name of any entity controlled by any such defendant if such notice contains a statement listing those controlled entities. A notice of pending action pursuant to subsection (a)(7) or (h) of section 1605 of title 28, United States Code, shall be filed by the clerk of the district court in the same manner as any pending action and shall be indexed by listing as defendants all named defendants and all entities listed as controlled by any defendant. (b)

Enforcement

Liens established by reason of subsection (a) shall be enforceable as provided in chapter 111 of title 28, United States Code.

5.

Applicability

(a)

In general

The amendments made by this Act apply to any claim for which a foreign state is not immune under subsection (a)(7) or (h) of section 1605 of title 28, United States Code, arising before, on, or after the date of the enactment of this Act. (b)

Prior causes of action

In the case of any action that— (1)was brought in a timely manner but was dismissed before the enactment of this Act for failure to state of cause of action, and (2)would be cognizable by reason of the amendments made by this Act, the 10-year limitation period provided under section 1605(f) of title 28, United States Code, shall be tolled during the period beginning on the date on which the action was first brought and ending 60 days after the date of the enactment of this Act.