UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF COLUMBIA 

_________________________________ 

 ) 

DAVID M. ROEDER, et al., ) 

 ) 

 Plaintiffs, ) 

 ) Civ. Action No. 08-487 (EGS) 

 v. ) 

 ) 

THE ISLAMIC REPUBLIC OF IRAN, ) 

 ) 

 Defendant. ) 

_________________________________) 

MEMORANDUM OPINION

 This case represents the latest in a series of attempts by 

plaintiffs, who were taken hostage by the government of the 

Islamic Republic of Iran in 1979, to hold that country 

responsible for their tremendous suffering. Plaintiffs have 

attempted to sue Iran at various times since 1983, without 

success. See, e.g., Persinger v. Islamic Republic of Iran, 729 

F.2d 835 (D.C. Cir. 1984); McKeel v. Islamic Republic of Iran, 

722 F.2d 582 (9th Cir. 1983); Ledgerwood v. State of Iran, 617 

F. Supp. 311 (D.D.C. 1985). Plaintiffs again filed suit in this 

Court in 2000, in Roeder v. Islamic Republic of Iran, Civ. 

Action No. 00-3110(EGS) (hereinafter “Roeder I”). In April 

2002, this Court dismissed plaintiffs’ claims. See Roeder I, 

195 F. Supp. 2d 140 (D.D.C. 2002). This Court held that the 

Foreign Sovereign Immunities Act (“FSIA”), as it existed in 
2

2002, did not create a private right of action against the 

government of Iran and accordingly that plaintiffs could not 

pursue their claims against Iran. The Court of Appeals affirmed 

the decision in 2003. See Roeder v. Islamic Republic of Iran, 

333 F.3d 228 (D.C. Cir. 2003) (also referenced herein as Roeder 

I). 

 In their previous cases, including Roeder I, plaintiffs 

have been thwarted by the Algiers Accords, the 1981 executive, 

bi-lateral agreement between the United States and Iran that 

secured the hostages’ release. Both the Algiers Accords and its 

implementing regulations contain express prohibitions barring 

lawsuits arising out of the hostage taking. As this Court and 

the Court of Appeals explained in Roeder I, Congress has the 

authority to abrogate the Algiers Accords; however, it must act 

clearly and unambiguously to do so. See Roeder I, 195 F. Supp. 

2d at 168-170, aff’d 333 F.3d 237-238. In Roeder I, this 

Circuit concluded that as of 2002 Congress had not acted clearly 

or unambiguously, and thus dismissed plaintiffs’ claims. See 

195 F. Supp.2d at 166; aff’d 333 F.3d at 238. 

 Now, several years later, plaintiffs have returned to this 

Court and filed the instant case (hereinafter “Roeder II”). 

Plaintiffs argue that in the years since Roeder I was decided, 

Congress has created a private right of action which enables 

them to proceed with a lawsuit against Iran. Specifically, they 
3

argue that by enacting the National Defense Authorization Act 

for Fiscal Year 2008, Congress has finally spoken clearly and 

unambiguously, and created a cause of action to enable them to 

sue Iran for damages. Compl. ¶ 20. The United States 

intervened and shortly thereafter filed a motion to dismiss, 

arguing that once again, Congress has failed to act with 

sufficient clarity to abrogate the Algiers Accords. This Court 

is thus confronted with the same fundamental question it faced 

in 2002: whether Congress has acted definitively to abrogate the 

Algiers Accords and enable plaintiffs to move forward in their 

suit for damages. With an equal measure of frustration, regret, 

and compassion the Court must conclude, once again, that 

Congress has failed to provide plaintiffs with a cause of action 

against Iran. Accordingly, this Court is not empowered to 

provide plaintiffs the relief they seek and the United States’ 

motion to dismiss must be GRANTED. 

I. BACKGROUND 

 A. Roeder I, and the State of the Law When it Was Decided

 As set forth above, this Court does not write on a clean 

slate: this case, like Roeder I, rests squarely on whether 

Congress has abrogated the Algiers Accords. As explained in 

Roeder I, the Algiers Accords is an international executive 

agreement the United States entered into with the Islamic 

Republic of Iran on January 19, 1981, in order to obtain the 
4

freedom of the plaintiff hostages. Among other commitments 

contained in the agreement, the United States agreed to “bar and 

preclude the prosecution against Iran of any pending or future 

claim of . . . a United States national arising out of the 

events . . . related to (A) the seizure of the 52 United States 

nationals on November 4, 1979, [and] (B) their subsequent 

detention.” Declaration of the Government of the Democratic and 

Popular Republic of Algeria, ¶ 11 (reprinted at 20 I.L.M. 223, 

227). 

 The Roeder I courts explained that a statute must satisfy 

one of two criteria to overturn a previously-enacted 

international agreement such as the Algiers Accords. First, if 

a later statute unambiguously conflicts with the international 

agreement on its face, the unambiguous later statute will 

prevail. See Roeder I, 195 F. Supp. 2d at 170 (citing Reid v. 

Covert, 354 U.S. 1, 17 (1957); Whitney v. Robertson, 124 U.S. 

190, 191 (1888); Committee of United States Citizens Living in 

Nicaragua v. Reagan, 859 F.2d 929, 936-37 (D.C. Cir. 1988); 

South African Airways v. Dole, 817 F.2d 119, 126 (D.C. Cir. 

1987)). If the statute is ambiguous, however, a Court will not 

interpret it to modify or abrogate a treaty or executive 

agreement “unless such purpose of Congress has been clearly 

expressed.” Bennett v. Islamic Republic of Iran, No. 09-5147, 

2010 WL 3515811 at *4 (D.C. Cir. Sept. 10, 2010) (quotation 
5

omitted, citing Roeder I, 333 F.3d at 237). As the Court of 

Appeals explained:

Executive agreements are essentially contracts between 

nations, and like contracts between individuals, 

executive agreements are expected to be honored by the 

parties. Congress (or the President acting alone) may 

abrogate an executive agreement, but legislation must 

be clear to ensure that Congress - and the President - 

have considered the consequences. The requirement of 

clear statement assures that the legislature has in 

fact faced, and intended to bring into issue, the 

critical matters involved in the judicial decision.

Roeder I, 333 F.3d at 238 (internal citation omitted). 

 Accordingly, in Roeder I, the courts determined that an Act 

of Congress will only abrogate the Algiers Accords’ bar to the 

hostages’ ability to sue if it (1) clearly and unambiguously 

gives the Court subject matter jurisdiction to hear plaintiffs’ 

case, and (2) clearly and unambiguously creates a cause of 

action against Iran for the 1979 hostage taking. See Roeder I, 

195 F. Supp. 2d at 163, 167, aff’d 333 F.3d at 236-237. This 

Court found, and the D.C. Circuit affirmed, that when Roeder I

was decided, Congress had provided the first, but not the 

second. The Roeder I courts’ analysis of subject matter 

jurisdiction and private rights of action are briefly summarized 

in turn.

 As a general matter, the FSIA grants foreign states 

immunity from liability in United States courts. Federal courts 

thus generally lack subject matter jurisdiction over claims 
6

against a foreign state. Congress has, however, provided 

several specific exceptions to this immunity. See 28 U.S.C. 

§ 1604; see also Roeder I, 333 F.3d at 235. The Anti-Terrorism 

Act of 1996 created one such exception, and allowed jurisdiction 

over foreign states for certain state-sponsored acts of 

terrorism. See 28 U.S.C. § 1605(a)(7) (1996). Initially, the 

1979 hostage-taking of the Roeder I plaintiffs did not fall 

within that exception; however, Congress amended the law in 2001 

to specifically waive sovereign immunity for acts “related to 

Case Number 1:00CV03110(EGS)1

 in the United States District Court 

for the District of Columbia.” Pub. L. 107-77, 115 Stat. 748 

(2001) (“Section 626(c)”). Thus, Section 626(c) amended the 

FSIA to remove sovereign immunity and create jurisdiction for 

any acts that related to Roeder I. See 195 F. Supp. 2d at 163; 

aff’d 333 F.3d at 235. The Roeder I courts found that Congress 

had therefore clearly and unambiguously created subject matter 

jurisdiction for plaintiffs’ claims to be heard in this Court. 

 The Roeder I courts next turned to the question of whether 

the 2001 amendments to the FSIA unambiguously created a cause of 

action for plaintiffs to sue Iran. The courts found that 

                                                           

1

 The text originally read “. . . (ESG) . . .” but was corrected 

in January 2002 to properly set forth the undersigned’s 

initials. See Pub. L. 107-117, 115 Stat. 2230 (2002). 
7

Congress had not unambiguously created such a cause of action. 

As this Court explained, while the exceptions to sovereign 

immunity “allowed federal courts to have jurisdiction over 

claims against foreign governments arising [out] of state 

sponsored terrorist activity. . . . [w]hat the [exceptions] did 

not do was create a private cause of action for the victims of 

state-sponsored terrorism. Like all the other exceptions to 

foreign sovereign immunity in the FSIA, victims of statesponsored terrorism had to look to other laws to provide a cause 

of action against the foreign state.” Roeder I, 195 F. Supp. 

2d. at 171 (citations omitted). When Roeder I was decided, the 

sole unambiguous private cause of action for victims of 

terrorism under federal law was conferred by the Flatow 

Amendment of 1996, 28 U.S.C. § 1605 note, which only provided “a 

private right of action against officials, employees and agents 

of a foreign state, not against the foreign state itself.” 

Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 

(D.C. Cir. 2004)(superseded by statute); see also In re: Islamic 

Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 46 

(D.D.C. 2009). The 2001 amendments to the FSIA did not clearly 

expand this cause of action. 

 As such, the courts found that the 2001 amendments to the 

FSIA were ambiguous. While it was possible to interpret the 

amendments as creating a new private right of action for 
8

plaintiffs, it was equally plausible to read the amendments to 

confer subject matter jurisdiction over the lawsuit but not to 

create a cause of action for plaintiffs to sue the state of 

Iran. See 195 F. Supp. 2d at 171; aff’d 333 F.3d at 236. 

Because the Courts found the statutory text ambiguous, they 

examined the statute and the legislative history to determine 

whether Congress expressed a clear intent to abrogate the 

Algiers Accords. See id. Neither this Court nor the D.C. 

Circuit found a sufficiently clear manifestation of 

congressional intent. Accordingly, because Congress had neither 

created an unambiguous cause of action nor demonstrated a clear 

intent to abrogate the Algiers Accords, plaintiffs were barred 

from pursuing their claims against the Islamic Republic of Iran 

in Roeder I. 

B. Congressional Efforts After Roeder I, and the Existing 

State of the Law. 

 Following Roeder I, several bills were introduced in 

Congress which, if enacted, would have undoubtedly provided the 

1979 hostages with a viable means to sue Iran. In a 2008 Report 

for Congress, the Congressional Research Service details 

attempts in the 107th, 108th, 109th, and 110th sessions of Congress 

“to enact legislation that would explicitly abrogate the 

provision of the Algiers Accords barring the hostages’ suit.” 

JENNIFER K. ELSEA, CONGRESSIONAL RESEARCH SERV., SUITS AGAINST 
9

TERRORIST STATES BY VICTIMS OF TERRORISM (2008), p. CRS-31, 

available at http://www.fas.org/sgp/crs/terror/RL31258.pdf. As 

set forth more fully in the Report, Congress has considered 

multiple bills containing language expressly nullifying the 

relevant provisions of the Algiers Accords. Id. at CRS-31, -32. 

None of that language, however, was enacted into law. Id.    

 Rather, in January of 2008, Congress enacted and the 

President signed into law the National Defense Authorization Act 

of 2008 (“NDAA”), Pub. L. 110-181, 122 Stat. 3 (2008), which 

precipitated the filing of the instant lawsuit. For the 

purposes of resolving the issues in this case, the only relevant 

provision is Section 1083, which has been codified at 28 U.S.C. 

§ 1605A. The Court will provide a brief overview of the three 

relevant provisions of § 1083 here; detailed analysis of each 

provision will be set forth infra. 

i. 28 U.S.C. § 1605A(a)

 Title 28 U.S.C. § 1605A(a) reformulates the terrorism 

exceptions to sovereign immunity. It incorporates one new 

provision that encompasses both: (1) the terrorism exception to 

the jurisdictional immunity of a foreign state, which originally 

appeared in the Anti-Terrorism Act of 1996, and (2) the specific 

exception to sovereign immunity for Roeder I that was set forth 

in § 626(c). 
10

ii. 28 U.S.C. §§ 1605A(c) and 1605A Note 

Title 28 U.S.C. § 1605A(c) is titled “Private Right of 

Action.” It creates a cause of action for damages against a 

“foreign state that is or was a state sponsor of terrorism” 

under certain circumstances which are set forth elsewhere in the 

statute. See 28 U.S.C. § 1605A(c). Only one such circumstance 

is relevant for the purposes of this case. This circumstance is 

set forth at Section 1083(c) of the NDAA, codified as 28 U.S.C. 

§ 1605A note, and provides that certain cases that are otherwise 

time-barred may be filed or refiled under the new statute. 

 Section 1083(c) delineates the scope of retroactive relief 

available under § 1605A. It sets forth two situations where the 

NDAA may apply to cases filed prior to its enactment. First, 

section 1083(c)(2), titled “Prior Actions,” provides that 

certain cases which were still pending before the courts under 

the preceding statutory scheme when the NDAA was enacted may be 

refiled under the NDAA. By refiling, claimants may take 

advantage of the new statute’s provisions, which are 

significantly more favorable to terrorism plaintiffs in general. 

Second, section 1083(c)(3), titled “Related Actions,” provides 

that certain new actions may be filed under the NDAA if they 

arose out of the same act or incident as cases filed under the 

previous statutory scheme. It reads, in relevant part, 
11

(3) RELATED ACTIONS. - If an action arising out of an act 

or incident has been timely commenced under section 

1605(a)(7) of title 28, United States Code . . . any 

other action arising out of the same act or incident 

may be brought under section 1605A of title 28, United 

States Code [this section], if the action is commenced 

not later than the latter of 60 days after — 

(A) the date of the entry of judgment in the 

original action; or 

(B) the date of the enactment of this Act [Jan. 

28, 2008]. 

Taken together, § 1605A(c) and § 1083(c)(3) provide a cause 

of action against state sponsors of terrorism in otherwiseuntimely new actions under the NDAA - not refiled old ones - so 

long as the new action is “related” to another action that has 

been timely commenced under the FSIA and Anti-Terrorism Act of 

1996. 

 II. PROCEDURAL HISTORY 

 On March 21, 2008, plaintiffs commenced this action against 

the Islamic Republic of Iran alleging violations of 28 U.S.C. § 

1605A. They assert that Roeder II is “related” to Roeder I, as 

defined in Section 1083(c)(3) of the NDAA (28 U.S.C. § 1605A 

note) and therefore that they have a cause of action under § 

1605A(c). Compl. p. 2, see also ¶¶ 21-24. Specifically, they 

allege that “[t]his action is a related action to Roeder v. 

Islamic Republic of Iran, et al., Case No. 1:00CV03110(EGS), and 

arises out of the same act or incident which was timely 

commenced under section 1605(a)(7) of title 28 in this Court. 
12

As such, this action qualifies as a related action under 28 

U.S.C. § 1605A.” Compl. p. 2. They seek 6.6 billion dollars in 

compensatory and punitive damages. 

 In light of the events of Roeder I, namely Iran’s refusal 

to appear in this Court and the United States’ last minute 

intervention in the litigation, the Court extended an invitation 

to the Department of State to “file a statement of interest in 

the present case, if appropriate, pursuant to 28 U.S.C. § 517.” 

Doc. No. 7, Letter from Hon. Emmet G. Sullivan to John B. 

Bellinger III, Legal Advisor, U.S. Department of State, April 

11, 2008. The government responded in June 2008, stating that 

if plaintiffs were able to perfect service on Iran and the case 

were to go forward, “the United States may well have an interest 

in participating in this litigation.” Doc. No. 11, Report of 

United States, June 13, 2008. 

 Plaintiffs served Iran at the end of November 2008, but 

Iran elected not to appear. In April 2009, plaintiffs filed a 

motion for default judgment as to liability. Immediately 

thereafter, the United States moved to intervene in this lawsuit 

and subsequently filed a motion to dismiss. In early October 

2009, plaintiffs filed a notice of supplemental authority: In re 

Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31 

(D.D.C. 2009). Following briefing on this supplemental 

authority, this Court heard oral argument on the government’s 
13

motion to dismiss on April 21, 2010. At the hearing, the Court 

expressed its concern about the lack of clarity in § 1083. The 

Court continued the motions hearing for 30 days and directed the 

parties to inform the Court in the event of any further 

Congressional developments. The Court reconvened the hearing on 

May 27, 2010, confirmed with the parties that no Congressional 

action had been taken, and took the case under advisement. The 

parties’ motions are now ripe for resolution by the Court.

III. ANALYSIS 

 Pending before the Court is the United States’ motion to 

dismiss for failure to state a claim. In its motion to dismiss, 

the government concedes that § 1083 of the NDAA provides a cause 

of action against Iran under certain circumstances, but argues 

that those circumstances do not unambiguously include 

plaintiffs’ case. Thus, the government argues, Congress has not 

clearly abrogated the Algiers Accords’ substantive bar to this 

litigation. The United States argues that while § 1083 creates 

substantive rights for other victims of terrorism, it did not 

cure the 1979 hostages’ inability to pursue claims against Iran. 

Plaintiffs raise three main arguments in opposition. First, 

they argue that Congress unambiguously created a private right 

of action for plaintiffs, in particular, to sue Iran pursuant to 

§ 1605A(a)(2)(b). Alternatively, plaintiffs argue that 
14

§ 1605A(c) and NDAA section 1083(c), taken together, 

unambiguously create a cause of action because Roeder I

qualifies as a “related action” to Roeder II as that term is 

defined by § 1083(c)(3). Finally, plaintiffs argue that “[e]ven 

if Congress [] enacted ambiguous statutory language . . . § 1083 

would still abrogate the Algiers Accords because Congress’s 

intent to do so is overwhelmingly clear.” Pls.’ Opp’n at 6. 

 After careful consideration of the parties’ arguments and 

the applicable law, the Court finds that plaintiffs’ ability to 

sue the government of Iran has not changed since Roeder I: 

§ 1083 does not unambiguously create a cause of action for these 

plaintiffs against Iran. The Court’s holding in Roeder I

applies equally to the new statutory scheme: “Because th[e] 

statute is ambiguous, and because [§ 1083] [n]ever mentions the 

Algiers Accords in statutory text or legislative history, this 

Court cannot interpret this legislation to implicitly abrogate a 

binding international agreement. Therefore this Court must 

dismiss plaintiffs’ claims.” 195 F. Supp. 2d at 166. 

A. Congress Must Act Clearly and Unambiguously to 

Overturn the Algiers Accords. 

The parties agree that this case, like Roeder I, turns on 

whether a later-in-time statute abrogates the Algiers Accords. 

On September 10, 2010, the D.C. Circuit reaffirmed the demanding 

standard a party must meet in order to show that a treaty or 
15

executive agreement has been abrogated or substantively modified 

by a later statute. See Bennett v. Islamic Republic of Iran, 

2010 WL 3515811 at *4 (citing Roeder I, 333 F.3d at 237). As 

fully set forth in the Roeder I decisions, and recapitulated in 

Section I.A supra, it is not enough to show that a later-in-time 

statute may be read to abrogate a previously-enacted 

international agreement. Rather, the later statute must 

unambiguously conflict with the agreement in its language and 

effect. A statute is only unambiguous if it is not “reasonably 

susceptible to more than one meaning.” McCreary v. Offner, 172 

F.3d 76, 82 (D.C. Cir. 1999); see also U.S. v. VillanuevaSotelo, 515 F.3d 1234, 1237 (D.C. Cir. 2008) (statute is 

ambiguous when more than one interpretation is possible); Air 

Transp. Ass'n of Am. v. FAA, 169 F.3d 1, 4 (D.C. Cir. 1999) 

(finding statute ambiguous because, “[a]lthough the inference 

petitioner would draw as to the statute’s meaning is not by any 

means unreasonable, it is also not inevitable.”). If the later 

statute is not unambiguous on its face, it must contain a clear 

expression of Congressional intent to abrogate the earlier 

agreement. See Roeder I, 195 F. Supp. 2d at 169-170 (collecting 

cases); see also 333 F.3d at 237-38 (collecting cases). As set 

forth by this Court in Roeder I: 

The Supreme Court has provided some guidance as to 

what it will accept and not accept as a clear 

expression of legislative intent in this context. The 
16

Supreme Court has unequivocally held that legislative 

silence is not sufficient to abrogate a treaty or a 

bi-lateral executive international agreement. When a 

later statute conflicts with an earlier agreement, and 

Congress has neither mentioned the agreement in the 

text of the statute nor in the legislative history of 

the statute, the Supreme Court has conclusively held 

that it can not find the requisite Congressional 

intent to abrogate. 

Roeder I, 195 F. Supp. 2d at 175 (internal citations and 

quotations omitted); aff’d 333 F.3d at 238. The law on this 

issue has not changed since Roeder I was decided. See, e.g., 

Medellin v. Texas, 552 U.S. 491, 509 n.5 (2008).2

 

 In short, when interpreting newly created federal 

legislation which covers the same legal ground as pre-existing 

international agreements, this Court’s role is extremely 

limited. As set forth in Roeder I, 

There are two branches of government that are 

empowered to abrogate and rescind the Algiers Accords, 

and the judiciary is not one of them. The political 

                                                           

2

 The Medellin Court cited Cook v. United States, 288 U.S. 102, 

119-120 (1933), for the proposition that a later-in-time federal 

statute supersedes inconsistent treaty provisions. Cook, in 

turn, recited the already-settled principle that “a treaty will 

not be deemed to have been abrogated or modified by a later 

statute, unless such purpose on the part of Congress has been 

clearly expressed. Here, the contrary appears. The committee 

reports and the debates upon the act of 1930, like the reenacted section itself, make no reference to the Treaty.” Id.

(citations omitted). Accordingly, the Cook court found that the 

treaty at issue in that case remained unaffected by the laterin-time statute. Id. 
17

considerations that must be balanced prior to such a 

decision are beyond both the expertise and the mandate 

of this Court. Unless and until either the 

legislative or executive branch acts clearly and 

decisively, this Court cannot grant plaintiffs the 

relief they seek. 

195 F. Supp. 2d at 145. 

 B. Section 1605A(a) Does Not Unambiguously Create A Cause 

of Action for Plaintiffs. 

 In their opposition to the motion to dismiss, plaintiffs 

argue that § 1605A(a)(2)(B) unambiguously creates a cause of 

action specifically for them. Pls.’ Opp’n 6-19. The government 

counters that § 1605A(a)(2)(B) only confers subject matter 

jurisdiction on the courts; it does not create a cause of action 

for plaintiffs to sue Iran. After careful consideration, and as 

explained more fully below, the Court finds that the text and 

structure of the statute do not support plaintiffs’ 

construction. Moreover, plaintiffs’ construction of 

§ 1605A(a)(2)(B) ignores the binding authority of Roeder I, in 

which the D.C. Circuit held that substantially identical 

language in a predecessor statute did not unambiguously create a 

cause of action. Accordingly, the Court concludes that 

§ 1605A(a)(2)(B) does not provide plaintiffs with a cause of 

action against Iran. 
18

 Section 1605A(a) provides in relevant part: 

 (a) IN GENERAL 

 (1) NO IMMUNITY. A foreign state shall not be immune 

from the jurisdiction of courts of the United 

States . . . 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 . . . 

 (2) CLAIM HEARD. The court shall hear a claim under 

this section if – 

(A)(i)(I) the foreign state was designated as a 

state sponsor of terrorism at the time the act 

described in paragraph (1) occurred . . . ; or 

 [...] 

 (B) the act described in paragraph (1) is 

related to case Number 1:00CV03110 (EGS) in 

the United States District Court for the 

District of Columbia. 

28 U.S.C. § 1605A(a). 

 In order for statutory construction to withstand scrutiny, 

“at a minimum, [it] must account for a statute’s full text, 

langauge as well as punctuation, structure and subject matter.” 

U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of America, 

Inc., 508 U.S. 439, 455 (1993). Plaintiffs’ proposed reading of 

the statute violates this irreducible minimum. The text of 

§ 1605A(a) refers only to subject matter jurisdiction; it is 

separate and apart from § 1605A(c), which creates a cause of 
19

action.3 Because § 1605A(c), not § 1605A(a), creates a cause of 

action, and because the reference to Roeder I occurs only in the 

jurisdictional section, § 1605A(a), the Court concludes that 

§ 1605A(a) does not create a cause of action for plaintiffs to 

sue Iran. 

 Plaintiffs’ argument is further undermined when considered 

in light of the history of this case in particular, where the 

outcome of Roeder I hinged on the distinction between subject 

matter jurisdiction and private rights of action. As discussed 

in Section I supra, § 1605A(a)(2)(B) is nearly identical to the 

language of former § 626(c), which was central to the Court’s 

analysis in Roeder I. This Court found that while § 626(c) did 

create subject matter jurisdiction for the Court to hear 

plaintiffs’ claims, it did not abrogate the Algiers Accords 

because it did not create a cause of action for plaintiffs 

                                                           

3

  Section § 1605A(c) is aptly entitled “Private Right of Action.” 

See 28 U.S.C. § 1605A(c). Unlike the jurisdictional portion of 

the statute, § 1605A(c) contains no reference to Roeder I, nor 

does it refer to or incorporate the jurisdictional subsection 

where Roeder I is mentioned. Id. Rather, § 1605A(c) 

specifically creates a cause of action with respect to a foreign 

state “that is or was a state sponsor of terrorism as described 

in [] § [1605A](a)(2)(A)(i).” Id. It is noteworthy that 

Congress chose to explicitly incorporate another jurisdictional 

provision of the statute – § 1605A(a)(2)(A)(i) - into the 

section governing private rights of action, but omitted 

§ (a)(2)(B), the jurisdictional provision which references 

Roeder I. Clearly, had Congress intended to include § (a)(2)(B) 

in the section governing private rights of action, it could have 

done so.
20

against Iran. See Roeder I, 195 F. Supp. 2d at 172. The D.C. 

Circuit explicitly affirmed this point, holding that § 626(c) 

spoke “only to the antecedent question of Iran’s immunity from 

suit in United States courts.” 333 F.3d at 236. 

 Despite this Circuit’s explicit holdings that § 626(c) was 

not sufficient to create a private right of action for the 

hostages to sue Iran, Congress chose to cut and paste the same, 

insufficient language from § 626(c) in the NDAA, and to place it 

in the jurisdictional section of the legislation only, not the 

section entitled “Private Right of Action.” As plaintiffs 

themselves point out, courts normally assume that “when Congress 

enacts statutes, it is aware of relevant judicial precedent.” 

Pls.’ Notice of Supp. Auth. at 1, (quoting Merck & Co. v. 

Reynolds, 130 S. Ct. 1784, 1795 (2010)); see also, Pls.’ Opp’n 

at 1, 6, 7, n.6, 9 (citing, e.g., Boumediene v. Bush, 553 U.S. 

723, 738 (2008)). Given the history and precedent regarding the 

crucial distinction between creation of subject matter 

jurisdiction and creation of a cause of action as regards these 

very plaintiffs, “the reasons for making this assumption are 

particularly strong here.” Merck, 130 S. Ct. at 1795-96. 

 Plaintiffs make several additional arguments in support of 

their claim that § 1605A(a)(2)(B) unambiguously creates a cause 

of action against Iran. For the reasons discussed below, their 

arguments are unpersuasive. 
21

 First, plaintiffs assert broadly that “Congress’s action in 

enacting § 1083 of the NDAA is entirely inexplicable other than 

as intended to permit plaintiffs to sue Iran and thereby to 

abrogate any bar to the claim under the Algiers Accords.” Pls.’ 

Opp’n at 4, see also 10. This argument is plainly without 

merit. As the government correctly notes, § 1083 is a statute 

of general applicability intended to permit U.S. nationals to 

sue many state sponsors of terrorism in U.S. courts, and is 

directly relevant to various cases that were pending against 

Iran, Cuba, and Libya, among other nations, when it was passed. 

Gov’t Reply at 6. As noted by the D.C. Circuit and by another 

judge on this Court, § 1083 “is more comprehensive and more 

favorable to [terrorism plaintiffs generally] because it adds a 

broad array of substantive rights and remedies that simply were 

not available in actions under § 1605(a)(7).” In re Islamic 

Republic of Iran Terrorism Litig., 659 F. Supp. 2d at 58; see 

also Simon et al. v. Republic of Iraq, 529 F.3d 1187, 1190 (D.C. 

Cir. 2008), rev’d on other grounds, 129 S.Ct. 2183 (2009) 

(explaining NDAA’s advantages to terrorism plaintiffs generally, 

including limiting foreign states’ appeal rights, permitting 

plaintiffs to attach property in advance of judgment, and 

providing for punitive damages). Plaintiffs’ argument that 

§ 1083 is inexplicable and pointless because it does not enable 
22

them to sue Iran for the 1979 hostage taking is simply not 

persuasive. 

 Second, plaintiffs argue that § 1605A’s “identification of 

plaintiffs would be utterly without purpose” because a conferral 

of subject matter jurisdiction without creation of a private 

right of action would be meaningless, effectively leaving 

plaintiffs in the same position they were after the enactment of 

§ 626(c). Pls.’ Opp’n at 2. However, plaintiffs fail to 

acknowledge that the D.C. Circuit considered and rejected the 

identical argument in Roeder I. There, the Circuit held that 

§ 626(c)’s conferral of subject matter jurisdiction was not “a 

futile thing” because it gave plaintiffs the opportunity to 

argue issues of substantive law, even if they did not ultimately 

prevail on those issues. 333 F.3d at 238. The same holds true 

here. Section 1083 of the NDAA repeals §§ 1605(a)(7) and 626(c) 

and replaces them with a new statute – § 1605A. See, e.g., In 

re: Iran Terrorism Litig., 659 F. Supp. 2d at 58. In choosing 

to include the repealed language of § 626(c) in the new statute, 

Congress affirmed its intent to remove Iran’s sovereign immunity 

with respect to plaintiffs, and to permit the courts to continue 

to grapple with these issues on their merits. This does not 

mean, however, that Congress created a private right of action 

for the plaintiffs. 
23

 In a related argument, plaintiffs maintain that 

§ 1605A(a)(2)(B) was a direct response to Roeder I, and, citing 

Boumediene v. Bush, they admonish this Court to respect the 

“ongoing dialogue between and among the branches of Government.” 

Pls.’ Opp’n at 6, 9 (quoting Boumediene, 553 U.S. at 738). 

Plaintiffs offer no support for this argument. Moreover, they 

fail to acknowledge the fact that (i) five years passed between 

Roeder I and the NDAA; and (ii) during those five years 

legislators tried - and failed - to pass legislation that would 

have responded to Roeder I by expressly abrogating the Algiers 

Accords. See Section I.B supra. Moreover, even if the NDAA was 

intended as a direct response to Roeder I, it does not mean that 

it would be an effective one: Congress directly responded to

Roeder I by passing section 626(c) while the litigation was 

ongoing, and both this Court and the D.C. Circuit found that 

response was insufficient to abrogate the Algiers Accords and 

change the outcome of the litigation. 

 Turning to the text of the statute, plaintiffs argue that 

the opening phrase of § 1605A(a)(2) “[t]he Court shall hear a 

claim under this section if --” means that Congress 

unambiguously created a cause of action for plaintiffs. Pls.’ 

Opp’n 7-12. However, plaintiffs do not address the arguments set 

forth above that the text and structure of the statute as a 

whole clearly separate jurisdictional prerequisites from the 
24

elements of a private right of action. See, e.g., U.S. Nat’l 

Bank of Oregon, 508 U.S. at 455; King v. St. Vincent's Hosp. 502 

U.S. 215, 221 (1991) (enunciating the “cardinal rule that a 

statute is to be read as a whole, since the meaning of statutory 

language, plain or not, depends on context. Words are not 

pebbles in alien juxtaposition; they have only a communal 

existence; and not only does the meaning of each interpenetrate 

the other, but all in their aggregate take their purport from 

the setting in which they are used. . . .”) (internal citations 

and quotations omitted). Plaintiffs rely on a number of 

attorneys’ fees cases for the proposition that the phrase “under 

this section” unambiguously creates a cause of action. Pls.’ 

Opp’n at 7-8 (citing Ardestani v. INS, 502 U.S. 129, 134 (1991); 

Blackman v. Dist. of Columbia, 456 F.3d 167, 176-77 (D.C. Cir. 

2006); St. Louis Fuel and Supply Co., Inc. v. F.E.R.C., 890 F.2d 

446 (D.C. Cir. 1989)). These cases are inapposite. The 

existence of a cause of action was not questioned in any of the 

cases plaintiffs cite; the parties had litigated the merits of 

the underlying cause of action, and the only question was 

whether fees should be awarded “under” the underlying statutes. 

Id. Even if these cases could be interpreted to argue that the 

ubiquitous phrase “under this section” connotes a substantive 

cause of action in some circumstances, they in no way support 

plaintiffs’ claim that the  language unambiguously requires such a 
25

conclusion.                  

For the foregoing reasons, the Court finds that 

§ 1605A(a)(2)(B) does not unambiguously create a cause of action 

for plaintiffs to sue Iran, nor does it contain clear 

Congressional intent to abrogate the Algiers Accords. 

 C. Sections 1605A(c) and 1083(c)(3) Together do not 

Unambiguously Create a Cause of Action for Plaintiffs.

 The second question at issue is whether § 1605A(c), which 

undoubtedly creates a cause of action for certain victims of 

terrorism, includes plaintiffs in its purview. After careful 

consideration, the Court finds that the dispositive legal issue 

presented is precisely the same as in Roeder I. Once again, 

“[t]his Court is faced with an arguably ambiguous statutory 

scheme, one interpretation of which provides a cause of action 

[for plaintiffs] against Iran and conflicts with the Algiers 

Accords. This Court may therefore allow plaintiffs to proceed . 

. . only if Congress has adequately expressed the requisite 

clear intent to abrogate the Algiers Accords.” 195 F. Supp. 2d 

at 171. And once again, this Court finds that the text of the 

statutory provisions do not “contain the type of express 

statutory mandate sufficient to abrogate an international 

executive agreement,” nor does the legislative history contain 

“clear statements of Congressional intent to specifically 

abrogate the Algiers Accords.” Id. at 177. Accordingly, this 
26

Court is unable to find that the executive or the legislative 

branch has acted clearly and decisively to enable the Court to 

grant plaintiffs the relief they seek. 

Section 1605A(c) creates a new cause of action in certain 

instances as follows: 

(c) PRIVATE RIGHT OF ACTION: A foreign state that is 

or was a state sponsor of terrorism as described in 

subsection (a)(2)(A)(i) [of section 1605A] . . . shall 

be liable to . . . a national of the United States . . 

. for personal injury or death caused by acts 

described in subsection (a)(1) [of section 1605A] of 

that foreign state . . . for which the courts of the 

United States may maintain jurisdiction under this 

section for money damages.

Subsection (a)(2)(A)(i) contains two subsections; only one, 

(a)(2)(A)(i)(II) applies to this litigation. Subsection 

(a)(2)(A)(i)(II) defines a foreign state as a state sponsor of 

terrorism if: 

(II) [I]n the case of an action that is refiled under 

this section [1605A] by reason of section 

1083(c)(2)(A) of the National Defense Appropriations 

Act for Fiscal Year 2008 or is filed under this 

section by reason of section 1083(c)(3), the foreign 

state was designated as a state sponsor of terrorism 

when the original action or the related action under 

section 1605(a)(7) (as in effect before the enactment 

of this section) . . . was filed . . .

(emphasis added). The parties agree that Roeder II was not 

filed “by reason of 1083(c)(2)(A)”; therefore only § 1083(c)(3) 

applies in this case. Section 1083(c)(3) reads: 
27

 (c) APPLICATION TO PENDING CASES. 

 [. . .] 

(3) RELATED ACTIONS.--If an action arising out of an 

act or incident has been timely commenced under 

section 1605(a)(7) of title 28, United States 

Code . . . any other action arising out of the 

same act or incident may be brought under section 

1605A of title 28, United States Code [this 

section], if the action is commenced not later 

than the latter of 60 days after— 

(A) the date of the entry of judgment in the 

original action; or 

(B) the date of the enactment of this Act [Jan. 

28, 2008]. 

Accordingly, plaintiffs possess a private right of action under 

§ 1605A(c) if and only if Roeder I qualifies as a “related 

action” under § 1083(c)(3). 

 Plaintiffs argue that Roeder I unambiguously qualifies as a 

related action under § 1083(c)(3). The government counters that 

it is at least equally plausible to interpret the statute’s 

“related action” provision to require that Roeder I have been 

pending when the NDAA was enacted. Because Roeder I was not 

pending, the government argues, plaintiffs cannot meet their 

burden to show § 1083(c)(3) unambiguously provides them with a 

cause of action against Iran. Gov’t Mem. 14. The Court agrees 

with the government that the statute is ambiguous as to what 

constitutes a “related action” under § 1083(c)(3), and for the 
28

reasons that follow, holds that Congress did not create an 

unambiguous cause of action for these plaintiffs. 

i. The Government’s Claims

 Beginning with the proposition that “the statute is 

anything but a model of clarity,” the government argues that the 

structure and text of § 1083(c) suggest that Roeder I cannot be 

considered a “related action” under § 1083(c)(3). Gov’t Mem. 

14. The government first considers the heading of § 1083(c): 

“Application to Pending Cases.” Section 1083(c)(3) is a subset 

of the “Pending Cases” section; thus, to be considered a 

“related case” under § 1083(c)(3), the original action (to which 

the new case is being related) must have been “pending” as of 

“the date of the enactment of this Act [the NDAA] [Jan. 28, 

2008].” 28 U.S.C. § 1083(c)(3)(B).4

 Roeder I was dismissed in 

2003, therefore, it was not pending in 2008 and cannot be 

considered a “related action” to Roeder II. 

 The government also relies on the statute’s use of the past 

perfect tense to describe original actions to which new cases 

may be considered related under § 1083(c)(3). The statute 

provides that new cases may be considered related to older 

                                                           

4

 Plaintiffs do not argue that Roeder II may be brought under 

§ 1083(c)(3)(A); that would require that Roeder II have been 

commenced within 60 days of the date of judgment in the original 

action – Roeder I. Roeder II was not filed until approximately 

five years after the D.C. Circuit’s decision dismissing Roeder 

I. Section 1083(c)(3)(A) is therefore inapposite. 
29

actions, “[i]f [the original] action arising out of an act or 

incident has been timely commenced.” § 1083(c)(3) (emphasis 

added). The government argues that the use of “has been” 

supports the interpretation that “a new action cannot be deemed 

‘related’ unless the original action (Roeder I) was pending” 

when § 1083 was enacted. Gov’t Mem. at 17. The government 

claims the D.C. Circuit endorsed this reading of the statute in 

Simon v. Republic of Iraq. In Simon, the D.C. Circuit 

considered the meaning of § 1083(c)(3) but did not directly 

address the question presented here. The Simon court 

interpreted the NDAA to permit “a pending original action [to] 

be[] refiled . . . by reason of section 1083(c)(2)(A)” while 

separately allowing “a new action [to] be[] filed . . . by 

reason of section 1083(c)(3) if a pending related action had 

been timely commenced.” 529 F.3d at 1193 (citations omitted). 

The Court went on to state: 

[This] implies the Congress understood that the courts 

would retain jurisdiction over the original “related 

action” described in § 1083(c)(3). That explains why 

the 60-day period for invoking § 1083(c)(2) began with 

the enactment of the NDAA, whereas the 60-day period 

in § 1083(c)(3) may run from the date of the “entry of 

judgment” in the “related action,” which could be well 

after the enactment of the NDAA. 

Id. According to the government, this language suggests that 

the Simon court read § 1083(c)(3) to signify that a new action 
30

could only be filed if a related action had been timely 

commenced and was still pending. 

 Given these doubts regarding the proper interpretation of 

the statute, the government argues that it would be improper to 

interpret the statute as abrogating a binding international 

executive agreement, particularly in light of the absence of any 

legislative history relating to Roeder I or the Algiers Accords. 

Gov’t Reply at 15-17. The government also notes that Congress 

is capable of drafting straightforward legislation explicitly 

abrogating the Algiers Accords, and cites as examples (1) the 

2001 legislation, § 626(c), which clearly and unequivocally 

conferred jurisdiction over this action; and (2) bills such as 

those which have been introduced but not passed over the years 

and which, by their terms, abrogate the Algiers Accords. See

CONGRESSIONAL RESEARCH SERV., SUITS AGAINST TERRORIST STATES BY 

VICTIMS OF TERRORISM (2008) at CRS 31-32. The fact that 

Congress has not acted clearly or decisively here means 

plaintiffs’ claim must be dismissed. Gov’t Mem. 17-18. 

ii. Plaintiffs’ Claims

 Plaintiffs advance a number of arguments why § 1605A(c) and 

§ 1083(c)(3) should be construed to provide plaintiffs with a 

cause of action against Iran. As set forth below, although the 

Court finds plaintiffs’ interpretations plausible, the 

government’s interpretations are as well. And as set forth 
31

above, the Court may not rely on plausibility to abrogate a 

binding international agreement; unless the statute 

unambiguously conflicts with the Algiers Accords, the Court must 

interpret the statute to avoid the conflict. Accordingly, the 

Court cannot find that the 2008 legislation permits plaintiffs 

to sue Iran. 

Plaintiffs first argue that a comparison of § 1083(c)(2) 

and § 1083(c)(3) compel the conclusion that Roeder I is a 

“related” action under § 1083(c)(3).5

 Plaintiffs note that the 

                                                           

5

  The parties agree that § 1083(c)(2) does not apply to this 

case. However, because the plaintiffs rely on it for the 

purposes of comparison to § 1083(c)(3), it is set forth here in 

relevant part: 

 (2) PRIOR ACTIONS. 

 (A) In general. - With respect to any action that - 

(i) was brought under section 1605(a)(7) of 

title 28, United States Code . . . before 

the date of the enactment of this Act [Jan. 

28, 2008], 

(ii) relied upon [] such provision as creating a 

cause of action, 

(iii) has been adversely affected on the grounds 

that . . . [§ 1605(a)(7)] fail[s] to create 

a cause of action against the state, and 

(iv) as of such date of enactment [Jan. 28, 

2008], is before the courts in any form, 

including on appeal or motion under rule 

60(b) of the Federal Rules of Civil 

Procedure, 
32

text of § 1083(c)(2) explicitly governs actions which were 

“pending before the Courts in any form, including on appeal or 

motion under Rule 60(b).” Section 1083(c)(3), however, does not 

include the same, explicit language that a “related action” be 

“pending before the courts” on the date of the enactment of the 

NDAA. Plaintiffs claim that “the presence of a pending-action 

limitation in the text of § 1083(c)(2), and its absence in § 

1083 (c)(3), makes clear that § 1083(c)(3) is not limited to 

actions relating to pending actions.” Pls.’ Opp’n 20 (citing 

Russello v. United States, 464 U.S. 16, 23 (1983) (“where 

Congress includes particular language in one section of a 

statute but omits it in another section of the same Act, it is 

generally presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion.”)). 

                                                                                                                                                                                               

that action, and any judgment in the action shall, on 

motion made by plaintiffs to the United States 

district court where the action was initially brought, 

or judgment in the action was initially entered, be 

given effect as if the action had originally been 

filed under section 1605A(c) of title 28, United 

States Code. 

(B) Defenses waived. - The defenses of res judicata, 

collateral estoppel, and limitation period are 

waived-- 

 (i) in any action with respect to which a 

motion is made under subparagraph (A) . . . 
33

 After careful consideration, the Court concludes that the 

general presumption articulated in Russello should not govern in 

this case. As the Supreme Court has made clear, “[t]he Russello

presumption – that the presence of a phrase in one provision and 

its absence in another reveals Congress’ design – grows weaker 

with each difference in the formulation of the provisions under 

inspection.” City of Columbus v. Ours Garage and Wrecker 

Service, Inc., 536 U.S. 424, 435-436 (2002)); see also Clay v. 

U.S., 537 U.S. 522, 532 (2003) (same); Field v. Mans, 516 U.S. 

59, 67 (1995) (declining to “elevate[] [the Russello

presumption] to the level of an interpretive trump card”). 

Reading § 1083(c)(2) and § 1083(c)(3) as integrated parts 

of a whole, it is clear that the two subsections serve distinct 

purposes. Section (c)(2) does not authorize the filing of new 

cases. Rather, it permits plaintiffs in older cases to reframe 

those same actions under § 1605A so long as they are still 

before the courts in some form, and expressly waives the 

defenses of statute of limitations, res judicata, and collateral 

estoppel. Section 1083(c)(3), on the other hand, permits 

“related actions” to be filed, even if they are wholly new, as 

long as they relate to timely filed cases because they “arise 

out of the same act or event” as the first-filed case. Stated 

another way, § 1083(c)(2) governs circumstances in which 

already-filed cases may change course, mid-stream, to proceed 
34

under § 1605A, while § 1083(c)(3) governs circumstances in which 

entirely new actions may be filed as a result of the new 

legislation, even if such actions would otherwise be untimely.6 

In keeping with the distinctly different purposes of the two 

sections, § 1083(c)(3) borrows no probative language from § 

1083(c)(2). To the contrary, the language, text and structure 

of the two sections have little to nothing in common. In short, 

the purpose and the language of § 1083(c)(2) are clearly 

distinguished from the purpose and the language of § 1083(c)(3). 

Therefore, the Court cannot conclude that the presence of the 

phrase “pending before the Courts in any form” in § (c)(2) but 

not § (c)(3) means that § (c)(3) unambiguously permits 

plaintiffs to file a new action five years after the action to 

which it was related ceased to exist before the courts. 

Plaintiffs next argue that the government’s reading of 

§ 1083(c) would render § (c)(3)(B) superfluous of § (c)(3)(A). 

                                                           

6

 In this regard, the Court notes that the underlying 

circumstances of the two Roeder cases may have more in common 

with § 1083(c)(2) than with § 1083(c)(3). The Roeder II

complaint is substantially identical to the Roeder I complaint; 

the only substantive difference is the statutory section under 

which plaintiffs allege a cause of action. Compare Roeder I, 

Doc. No. 3, First Am. Compl. (relying on former § 1605(a)(7) for 

cause of action), with Roeder II, Doc. No. 1, Complaint (relying 

on § 1605A for cause of action). Accordingly, it could be 

argued that the Roeder II plaintiffs are effectively refiling 

the same action, and are citing § 1083(c)(3) in an attempt to 

avoid the otherwise-fatal restrictions of § 1083(c)(2). 
35

Section 1083(c)(3) provides that a related action is timely 

filed: 

if the action is commenced not later than the latter 

of 60 days after 

(A) the date of entry of judgment in the original 

action; or 

 (B) the date of enactment of this Act. 

Plaintiffs claim that if the Court accepts the government’s 

argument that all original cases had to be “pending” when the 

NDAA was enacted, “then there would be no need to include clause 

(B). Rather, the timeliness of filing test would always run 

from entry of final judgment in the pending action, which would 

necessarily be more than sixty days later than the date of the 

NDAA’s enactment.” Pls.’ Opp’n at 23. Accordingly, plaintiffs 

argue that the government’s reading of the statute cannot be 

reasonable because it would require the Court to construe one of 

its clauses as superfluous or void. Id. (citing TRW Inc. v. 

Andrews, 534 U.S. 19, 31 (2001)). 

Plaintiffs take too cramped a view of the term “entry of 

judgment.” § 1083(c)(3)(A). The Federal Rules of Civil 

Procedure provide multiple avenues by which a court may enter a 

judgment. See, e.g., Fed. R. Civ. P. 50, 52, 54(a), 55(b), 56, 

57. The Federal Rules of Appellate Procedure and Supreme Court 

Rules also provide for entry of judgment under additional 
36

circumstances. See, e.g., Fed. R. App. P. 36.; Sup. Ct. R. 41 - 

44. The Court can easily envision several scenarios where entry 

of judgment in the original, related case could have been 

entered far in advance of the enactment of the NDAA – for 

instance, the district court could have entered judgment and the 

case could still be pending on appeal, pursuant to a motion to 

alter or amend under Fed. R. Civ. P. 59(e), or on a motion for 

relief from judgment under Fed. R. Civ. P. 60(b). In any of 

these situations, the latter date for purposes of timely filing 

the new, related action under § 1083(c)(3) would be “sixty days 

after the enactment of [the NDAA]”, § 1083(c)(3)(B), thus giving 

meaning and effect to both subsections. 

Finally, plaintiffs argue that the use of the present 

perfect tense in § 1083(c)(3) – “[i]f an action arising out of 

an act or incident has been timely commenced” - does not 

indicate that a new action cannot be deemed “related” unless the 

original action (Roeder I) was pending at the time § 1083 was 

enacted. Pls.’ Opp’n 28. Plaintiffs cite Barrett v. United 

States, 423 U.S. 212 (1976) for the proposition that “has been” 

denotes an action that has been completed. In Barrett, the 

Court found that the term “has been shipped” encompassed items 

that had been shipped and completed their journey in interstate 

commerce as well as those items that were still in the process 

of being shipped. Thus, plaintiffs argue, the phrase “has been 
37

timely commenced” must include not only actions that were still 

pending when the NDAA was enacted, but also actions such as 

Roeder I, which were completed at that time. Pls.’ Opp’n at 28-

29. The United States counters that Barrett does not change the 

analysis. Gov’t Reply at 12, n.9. The government argues that 

even if the present perfect tense connotes an act that has been 

completed, the phrase in § 1083(c)(3) “has been commenced” would 

simply mean that commencement, or filing of the action, has been 

completed. Id. It does not compel the conclusion that the 

entire case can be completed and a related action may still be 

filed under § 1083(c)(3). Id. 

The Court finds that the phrase “has been commenced” does 

not resolve the textual ambiguity in the statute. The phrase 

may be reasonably read to limit § 1083(c)(3)’s reach to cases 

related to those which were timely filed and are still pending, 

as the government argues, or to encompass cases related to any 

and all cases that were timely filed in the first instance, 

regardless of whether they were still pending when the NDAA 

became law, as plaintiffs argue. However, the Court need not 

resolve these questions here: plaintiffs cannot prevail unless 

they can show that theirs is the only reasonable reading of the 

statute. For the reasons set forth above, they cannot. 
38

D. The Record is Devoid of Any Clear Evidence of 

Congressional Intent to Abrogate the Algiers Accords.

Because the NDAA is ambiguous, “this Court must not 

interpret [it] to conflict with the Algiers Accords absent a 

clear intent to abrogate that agreement by Congress.” Roeder I, 

195 F. Supp. 2d at 175. As set forth above, 

[L]egislative silence is not sufficient to [find clear 

intent to] abrogate a treaty or a bilateral executive 

international agreement. When a later [ambiguous] statute 

conflicts with an earlier agreement, and Congress has 

neither mentioned the agreement in the text of the statute 

nor in the legislative history of the statute, the Supreme 

Court has conclusively held that it can not find the 

requisite Congressional intent to abrogate. 

Id. (internal quotations and citations omitted.) It is 

undisputed that the Algiers Accords is neither mentioned in the 

statute, nor discussed or even alluded to in the legislative 

history. Nevertheless, plaintiffs contend that even if the 

statute does not unambiguously create a cause of action for them 

to sue Iran, the Court should find that the legislative history 

provides clear congressional intent to abrogate the Algiers 

Accords. See Pls.’ Opp’n 17-18 (“Section 1083 was not 

overlooked by Congress or the President.”) In support of this 

statement, they note that the NDAA’s language regarding Roeder I 

survived a presidential veto and subsequent negotiations over 

§ 1083. They claim that “the intense attention the political 

branches directed to this very section,” demonstrates that the 
39

other two branches of government clearly intended § 1083 must 

abrogate the Algiers Accords. Pls.’ Opp’n 18. 

 This argument is easily resolved. A review of the 

legislative history reveals that none of the attention focused 

on § 1083 had anything to do with the provisions at issue in 

this litigation. The D.C. Circuit accurately summarized the 

history of the NDAA’s passage as follows: “President Bush 

sought to ‘pocket veto’ the bill because he believed § 1083 

would threaten the reconstruction of Iraq. . . . Congress 

subsequently passed a revised version of the NDAA, which 

included a new provision (§ 1083(d)) that authorized the 

President, upon making certain findings, to ‘waive any provision 

of [§ 1083 of the NDAA] with respect to Iraq. The President 

signed that bill into law.’” Simon, 529 F.3d at 1190 (citations 

omitted). The legislative history adds nothing to support 

plaintiffs’ argument. To the contrary, as the government 

correctly notes, “the fact that the political branches gave 

Section 1083 this allegedly ‘intense attention’, without once

even mentioning the Algiers Accords or the 1979 Iranian hostage 

taking, is compelling evidence that Congress did not intend to 

repeal the Accords or to offer the Roeder I plaintiffs a cause 

of action, and that the President did not interpret the NDAA to 

include an abrogation of the Accords.” Gov’t Reply at 15 
40

(quoting Pls.’ Opp’n at 18) (emphasis in original). The Court 

concurs. 

 As this Court found in Roeder I, “[a]n explicit expression 

of intent to abrogate a binding international agreement 

requires, at a minimum, an acknowledgment of the existence of 

that agreement[.]” Roeder I, 195 F. Supp. 2d at 182. In Roeder 

I, this Court was faced with legislative history which directly 

referenced that case and alluded to the Algiers Accords. 

Nevertheless, the D.C. Circuit held that because the relevant 

legislative history was contained in a “joint explanatory 

statement,” a form of committee report which is never subject to 

a Congressional vote, it was insufficient to abrogate the 

Algiers Accords. See Roeder I, 333 F.3d at 236-238. In Roeder 

II, plaintiffs’ arguments for clear Congressional intent are 

even weaker than Roeder I; the legislative history of the NDAA 

is utterly silent with respect to either the Algiers Accords or 

this case. Accordingly, the Court finds no clear Congressional 

intent to abrogate the executive agreement. 

E. Chief Judge Royce C. Lamberth’s Opinion Does Not Alter 

This Court’s Analysis. 

 Finally, the Court turns to plaintiffs’ argument that Chief 

Judge Lamberth’s opinion in In re Islamic Republic of Iran

Terrorism Litigation, 659 F. Supp. 2d 31 (D.D.C. 2009), brought 

to the Court’s attention by plaintiffs as supplemental 
41

authority, should guide this Court’s analysis and conclusions. 

The Court gave the parties the opportunity to fully brief the 

import of the opinion and, after careful consideration of the 

opinion and the parties’ arguments, concludes that the 

supplemental authority does not alter this Court’s analysis. 

 Plaintiffs principally rely on In re Iran Terrorism 

Litigation for its conclusion that § 1083(c)(3) allows terrorism 

victims to file “related cases” within 60 days after the NDAA’s 

enactment, even if the original case to which the new case 

relates was no longer pending. Specifically, plaintiffs point 

to that court’s determination that “the heading of § 1083(c) – 

‘Application to Pending Cases’ - is something of a misnomer 

because, in reality, § 1083(c) may encompass cases that are not 

pending at all - meaning prior actions that have since reached 

final judgment and are no longer before the courts in any form.” 

Id. at 63. Plaintiffs argue that Chief Judge Lamberth’s 

interpretation of § 1083(c)(3), which comports with plaintiffs’ 

interpretation, “makes clear that the current opposition is 

without any statutory basis.” Pls.’ Supp. Auth. Mem. at 10. 

 The Court is unpersuaded by the plaintiffs’ selective 

reading of In re Iran Terrorism Litigation. While the cases 

addressed in that opinion all name the Islamic Republic of Iran 

as a state sponsor of terrorism, none of the cases arises out of 

the 1979 hostage taking and consequently none of them is 
42

governed by the Algiers Accords. Notwithstanding any 

conclusions Chief Judge Lamberth may have reached regarding the 

meaning of § 1083(c)(3), he - correctly - went to great pains to 

distinguish the cases before him from the case before this 

Court. As set forth above, Chief Judge Lamberth found that new 

“related actions” could be filed against Iran arising out of the 

same acts or incidents as had been originally litigated before 

him, even if the original actions were no longer pending when 

the NDAA was enacted. However, he explained that the standard 

the Roeder plaintiffs must meet in order to sue Iran is 

different. 

Congress [must have] clearly expressed its intent to 

abrogate the Algiers Accords, as is required before 

Courts will hold that an international agreement is 

abrogated by a subsequent act of Congress. . . . Judge 

Sullivan [] went to some length in his [Roeder I] 

opinion to explain that, while our Court cannot ignore 

or refuse to give effect to the Algiers Accords, both 

Congress and the President have the authority to 

abrogate them, if they so desire. The opinion could 

not have been any clearer on that point. To date, 

however, neither branch has taken such action; the 

political consequences are likely too great, but that 

is precisely why it is a decision best left to the 

political branches, and not the Courts.

659 F. Supp. 2d at 88-89 (internal quotations and citations 

omitted) (emphasis added). In short, the In re Iran Terrorism 

Litigation court recognized that while the NDAA granted 

significant new rights and privileges to terrorism victims in 
43

general, the 1979 hostage victims do not fall under the category 

of terrorism victims in general. The opinion also recognized 

that absent clear abrogation of the Algiers Accords, which the 

NDAA did not accomplish, the plaintiffs are in the same position 

now as they were prior to the enactment of the NDAA. Id. at 89-

90. Plaintiffs’ supplemental authority does not change this 

Court’s analysis; it reinforces it. 

 As discussed in Section III.C. supra, this Court does not 

necessarily disagree with Chief Judge Lamberth that § 1083(c)(3) 

could support the reading urged by plaintiffs. However, as set 

forth throughout, the language of the statute does not 

unambiguously require such a conclusion with respect to the 1979 

hostage victims, and thus does not abrogate the Algiers Accords. 

IV. CONCLUSION 

In this case, as in Roeder I, much time and effort have 

been expended parsing esoteric phrases of statutory text and 

legislative history in an effort to discern the intent of 

Congress. As in Roeder I, this Court is acutely sensitive to 

the indescribable horror of plaintiffs’ suffering. See Roeder 

I, 195 F. Supp. 2d at 145 (“Were this Court empowered to judge 

by its sense of justice, the heart-breaking accounts of the 

emotional and physical toll of those 444 days on plaintiffs 

would be more than sufficient justification for granting all the 

relief that they request.”) The principles that guided the 
44

Court’s decision in Roeder I, however, are fundamental to our 

system of government and the fair administration of justice. 

They are equally binding on this Court now, and they bear 

repeating. 

Lest this Court’s decision be viewed as denying 

plaintiffs a remedy for the horrible wrongs they have 

suffered simply because Congress failed to use the 

proper choice of words, it is important to reiterate 

the values that are served by an abrogation doctrine 

that requires Congress to make its intent clear. The 

spheres of power of our co-equal branches of 

government can at times overlap. When such overlap 

occurs, and the wills of two branches are in conflict, 

the Constitution sets forth the rules for deciding 

which branch gets to trump the will of the other. In 

this case, by virtue of his power to direct the 

foreign affairs of this country, the President clearly 

has the authority to enter into international 

agreements. Congress, however, clearly has the 

corresponding right to abrogate the agreement reached 

by the President if it so wishes. Because of the 

respect owed to each co-equal branch of government, 

the courts must require that Congress make its intent 

clear, either by legislating unambiguously or 

accompanying ambiguous statutes with clear expressions 

of intent. Any other rule would allow the courts, by 

inference and interpretation, to impermissibly assume 

the legislative role. 

Roeder I, 195 F. Supp. 2d at 183 (internal citation omitted). 

As discussed throughout this opinion, Congress has failed to 

enact plain, straightforward language creating a cause of action 

for plaintiffs; nor has Congress clearly expressed its intent to 

abrogate the Algiers Accords. Regrettably, this Court must 

conclude as a matter of law that the plaintiffs cannot pursue a 
45

lawsuit for damages for the human suffering and atrocities 

inflicted upon them by the Islamic Republic of Iran. 

 For the foregoing reasons, it is hereby ORDERED that the 

United States’ motion to dismiss is GRANTED as plaintiffs have 

failed to state a claim upon which this Court can grant relief. 

Plaintiffs’ motion for default judgment as to liability is 

DENIED as moot. This case is therefore DISMISSED. An 

appropriate Order accompanies this memorandum opinion. 

SIGNED: Emmet G. Sullivan 

United States District Court Judge 

September 30, 2010