II 110th CONGRESS 1st Session S. 1944 IN THE SENATE OF THE UNITED STATES August 2, 2007 Mr. Lautenberg (for himself, Mr. Specter, Mr. Menendez, Mr. Cornyn, Mr. Coleman, Mr. Lott, Mr. Lieberman, Mr. Schumer, Mrs. Clinton, Mr. Casey, Ms. Collins, Mr. Graham, Mr. Biden, Mr. Stevens, and Mrs. Feinstein) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To provide justice for victims of state-sponsored terrorism.

1.

Short title

This Act may be cited as the Justice for Victims of State Sponsored Terrorism Act.

2.

Terrorism exception to immunity

(a)

In general

Chapter 97 of title 28, United States Code, is amended by inserting after section 1605 the following:

1605A.

Terrorism exception to the jurisdictional immunity of a foreign state

(a)

In general

(1)

No immunity

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter 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, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency. (2)

Claim heard

The court shall hear a claim under this section if— (A)the foreign state was 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) at the time the act occurred, unless later designated as a result of such act; (B)the claimant or the victim was— (i)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)); (ii)a member of the Armed Forces of the United States (as that term is defined in section 976 of title 10); or (iii)otherwise an employee of the government of the United States or one of its contractors acting within the scope of their employment when the act upon which the claim is based occurred; or (C)where the act occurred in the foreign state against which the claim has been brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration. (b)

Definition

For purposes of this section— (1)the terms torture and extrajudicial killing have the meaning given those terms in section 3 of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note); (2)the term hostage taking has the meaning given that term in Article 1 of the International Convention Against the Taking of Hostages; and (3)the term aircraft sabotage has the meaning given that term in Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. (c)

Time limit

An action may be brought under this section if the action is commenced not later than the latter of— (1)10 years after April 24, 1996; or (2)10 years from the date on which the cause of action arose. (d)

Private right of action

A private cause of action may be brought against a foreign state designated under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405(j)), and any official, employee, or agent of said foreign state while acting within the scope of his or her office, employment, or agency which 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)), a member of the Armed Forces of the United States (as that term is defined in section 976 of title 10), or an employee of the government of the United States or one of its contractors acting within the scope of their employment or the legal representative of such a person for personal injury or death caused by acts of that foreign state or its official, employee, or agent for which the courts of the United States may maintain jurisdiction under this section for money damages which may include economic damages, solatium, pain, and suffering, and punitive damages if the acts were among those described in this section. A foreign state shall be vicariously liable for the actions of its officials, employees, or agents. (e)

Additional damages

After an action has been brought under subsection (d), actions may also be brought for reasonably foreseeable property loss, whether insured or uninsured, third party liability, and life and property insurance policy loss claims. (f)

Special masters

(1)

In general

The Courts of the United States may from time to time appoint special masters to hear damage claims brought under this section. (2)

Transfer of funds

The Attorney General shall transfer, from funds available for the program under sections 1404C of the Victims Crime Act of 1984 (42 U.S.C. 10603c) to the Administrator of the United States District Court in which any case is pending which has been brought pursuant to section 1605(a)(7) such funds as may be required to carry out the Orders of that United States District Court appointing Special Masters in any case under this section. Any amount paid in compensation to any such Special Master shall constitute an item of court costs. (g)

Appeal

In an action brought under this section, appeals from orders not conclusively ending the litigation may only be taken pursuant to section 1292(b) of this title. (h)

Property disposition

(1)

In general

In every action filed in a United States district court in which jurisdiction is alleged under this section, the filing of a notice of pending action pursuant to this section, 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. (2)

Notice

A notice of pending action pursuant to this section 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. (3)

Enforceability

Liens established by reason of this subsection shall be enforceable as provided in chapter 111 of this title.

. (b)

Amendment to chapter analysis

The chapter analysis for chapter 97 of title 28, United States Code, is amended by inserting after the item for section 1605 the following: 1605A. Terrorism exception to the jurisdictional immunity of a foreign state. .

3.

Conforming amendments

(a)

Property

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

Property in Certain Actions

(1)

In general

The property of a foreign state, or agency or instrumentality of a foreign state, against which a judgment is entered under this section, including property 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 by the government of the foreign state; (B)whether the profits of the property go to that government; (C)the degree to which officials of that government manage the property or otherwise control its daily affairs; (D)whether that government is the sole beneficiary in interest of the property; or (E)whether establishing the property 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 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 this section because the property 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. . (b)

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 civil or criminal. (c)

General exception

Section 1605 of title 28, United States Code, is amended— (1)in subsection (a)— (A)in paragraph (5)(B), by inserting or after the semicolon; (B)in paragraph (6)(D), by striking ; or and inserting a period; and (C)by striking paragraph (7); and (2)by striking subsections (e) and (f).

4.

Application to pending cases

(a)

In general

The amendments made by this Act shall apply to any claim arising under section 1605A or 1605(g) of title 28, United States Code, as added by this Act. (b)

Prior actions

Any judgment or action brought under section 1605(a)(7) of title 28, United States Code, or section 101(c) of Public Law 104–208 after the effective date of such provisions relying on either of these provisions as creating a cause of action, which has been adversely affected on the grounds that either or both of these provisions fail to create a cause of action opposable against the state, and which is still before the courts in any form, including appeal or motion under Federal Rule of Civil Procedure 60(b), shall, on motion made to the Federal District Court where the judgment or action was initially entered, be given effect as if it had originally been filed pursuant to section 1605A(d) of title 28, United States Code. The defenses of res judicata, collateral estoppel and limitation period are waived in any re-filed action described in this paragraph and based on the such claim. Any such motion or re-filing must be made not later than 60 days after enactment of this Act.