UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

P AN AM F LIGHT 73 LIAISO N G ROUP , Movant,
v. No. 10-m c-0077 ( JDB) GIA TRI DAVÉ & GARG I DAVÉ, Respondents.

MEMORAN DUM OP INION This action ar ises out of a dispute over the enf orce ability

of a c ontrac t -- ter

med the Joi nt Prosecution Ag ree ment (" J PA" or "the Ag ree ment") -- by

which victims of the 1986 hijacking of Pan Am Flig ht 73 ag ree d to pursue joint leg al re medies. Giatri Da vé and G arg i Davé, vic tims of the hijackingand the r espondents her e, brought suit i n California state c ourt cha lleng ing the scope a nd meaningof the JP A. The Pan Am Flig ht 73 L iaison Group (" the L G" ), a de fenda nt in the Davé s' California a ction and the movant he re, the rea fter initiated this ac tion to compel the Davé s to arbitrate their cla ims. The Court gr anted the L G' s motion t o compel ar bitration,

rea soning that the Ag ree ment' s arbitration clause wa s enfor cea ble and e ncompassed the Davé s' claims. See Pan Am F light 73 L iaison Group v. Davé, -- - F . Supp. 2d ---, 2010 WL1889167, at *4, 13 (D.D.C. May

12, 2010). 1 The Da vés now see k a stay

of that orde r pendingappea l. For the re asons discussed 2

The Court also denie d the Davé s' motion to t ransf er or stay the ca se, as we ll as the L G' s 1 motion for a pre liminary

injunction seekingto hold disput ed asse ts in escrow. See Pan Am Flig ht 73 L iaison Group, 2010 WL1889167 at *4, 15. The Da vés and the L G have stipulated that this C ourt' s decision compellingarbitration 2 applies to eig ht additional individuals who had "soug ht to join t he Davés in the Californiabelow, the Court will deny the motion. STANDARD OF REVIEW "Astay is an intrusion into t he ordina ry proce sses of administration and judicial r eview, and ac cording ly

is not a matter of r ight, e ven if irr epar able injury might other

wise re sult to t he appellant." Nken v. Holde r, 129 S. Ct. 1749, 1758 (2009) (citations and inter nal quotation marks omitted). "The party

reque sting a

stay bear s the burden of

showing that the circ umstances justify

an exerc ise of that discre tion." I d. at 1761. In revie wing a motion for a sta y pendingappea l, the Court considers four

fac tors: (1) whe ther the a pplicant will be irre para

bly injured abse nt a stay ; (2) whe ther the a

pplicant has made a strongshowingthat he is likely to succe ed on the mer its; (3) whether issuance of

the stay will substantially

injure the other

parties inter ested in the proce eding ; and (4) where the public intere st lies. See id.; accor d United States v. Phill ip Morris, Inc., 314 F .3d 612, 617 (D.C. Cir. 2003). Althoug h "[t]hese fac tors interre late on a sliding scale and must be bala

nced a g ainst eac h other," Serono L abs., Inc. v. Shalala, 158 F .3d 1313, 1318 (D.C. Cir. 1998), " [t ]he first two fac tors of the tra ditional standard ar e the most critica l," Nke n, 129 S. Ct . at 1761. ANALYSIS I. Irre parable Harm Acc ordingto the Davé s, the irre para ble har m here is the irrec overa

ble loss of resour ces available under the J PA as a re sult of the L G' s decision to use those re source s to pay for arbitration. See Davé s' Mot. to S tay (" Davé s' Mot.") [Docke t Entry 41], at 13 ("[T]he ag g reg ate

L itigation as a dditional plaintiffs." See Dec l. of Kathry n L ee B oyd [Docket Entry 42], Ex . B (Joi nt Sti pulation), 1-2. -2-Treaty

Compensation will be substantially dissipated as the L G is using these funds to pay for arbitration . . . ."); id. at 14 (" Trea ty Compensation funds used to financ e ar bitration in order to have the rig hts and obligations determined of a ll parties ar e not re cover able by any party . . . .")

. 3 But " the monetar

y cost of ar bitration . . . does not impose . . . leg ally rec og nized irrepar able harm," Emery

Air F reig ht Corp. v. L ocal Union 295, 786 F .2d 93, 100 (2d Cir. 1986), bec ause "[m]ere litigation ex pense, e ven substantial and unr ecoupa ble cost, does not constitute irrepa rable injury ," Re neg otiation Bd. v. B anner cra ft Clothing Co., 415 U.S. 1, 24 (1974); ac cord McSurely v. McClellan, 697 F.2d 309, 317 n.13 ( D.C. Cir. 1982). Neve rtheless, the D avés sug g est that the situation here is unique. They asser t that beca use the L G is using JP A funds to pay for a rbitration, their a

war d share under the Agree ment will be irrevoc ably

reduc ed. And, in their vie w, this awar d reduc tion is separate from litigation costs, beca

use they are alre ady

bear ing the ir own ar

bitration costs by

challeng ing the J PA. See 4 Davé s' Reply

in Supp. of Mot. to S tay

(" Davé s' Reply ") [Docket Entry 44], at 10. But even if

the Davé s will bear some of

the L G' s arbitra

tion costs, those costs are still just li tigation costs, and there fore cannot c onstitut e irre para ble har m. See Reneg otiation Bd., 415 U.S. at 24. Moreove r, eve n if the Court wer e to fra me the potential dec rea se of the D avés' J PA awar d

as an e conomic injury

distinct from liti g ation costs, their ar g ument would rema in unavailing

. Although the Davé s fra

me their irr epar able ha

rm argument in terms of the potential 3 harm to " all the intere sted parties in the disputed f unds," D avés' Mot. at 15; see also id. at 13, 14, the irre para

ble har m analy sis looks onl y

to the harm fa cingthe moving pa rty -- he re, the Davé s, see N ken, 129 S. Ct. at 1761. I t is odd, to say

the least, for

the Davé s to offer

this it eration of irrepa

rable harm: 4 althoug h they

object to the potential diminution of their J PA awar d beca use the L G is using JP A resour ces to pa

y for a rbitration, the L G is in arbitration only beca use the Da

vés have challeng ed the Ag ree ment. -3-"[T]o successfully shoehorn potential e conomic loss into the irrepa rable harm re quirement, a plaintiff must establish that the economic ha rm is so severe as to ca

use extreme har dship . . . or threaten [the plaintiff' s] very exis tence ." Sandoz, Inc. v. F ood & D rugAdmin, 439 F. Supp. 2d 26, 32 (D.D.C. 2006) ( internal quotation marks omitted); ac cord Gulf Oil Corp. v. Dep' t of Energy , 514 F. Supp. 1019, 1026 (D.D .C. 1981) (potential har m "must be more than simply irretr ievable; it must also be serious in terms of its ef fec t on the plaintiff" ). He re, how ever , the Davé s' have of

fer ed no evide nce that obtaining a smaller aw ard unde r the JP A would ca use them extreme hardship; indee d, they fail to indicate that it would cause them a ny hardship at a ll. Although the y

asser t without citation or ex planation that a loss will be substantial, see D avés' Mot. at 13, such g ener al, unsubstantiated stateme nts are insuff icient to demonstrate ir

repa rable harm, see Nat' l Ass'n of

Psy chiatric Hea lth Sy s. v. Shalala, 120 F . Supp. 2d 33, 44 (D.D.C. 2000) (plaintiffs must offe r " concr ete, r eliable e vidence to support their contentions of irr epar able harm" ). Ac cording ly , the Davé s have f ailed to ca

rry their burde n on this essential fac tor. II. Lik elihood of

Success on the Me rits In opposing the L G' s motion t o compel ar bitration, the Davé s offe red se vera l arguments to demonstrate that the JPA's ar bitration provision is unenforce able. The Court found ea ch of these a rguments unpersua sive, and ther efor e dete rmined that " the Davé s must arbitrate the c laims broug ht in their California ac tion." Pan Am F light 73 L iaison Group, 2010 WL1889167 at *13. They now sug g est that they

are likely to preva il on appeal with re spect to two of the Court' s conclusions. Specific ally , the Davé s press their a rgument that "the y

cannot be bound by

the arbitration provision because it conflicts with the terms of fe dera l leg islation," id. at *11 (inter nal quotation marks omitted), by challeng ing the Court's de termination that the L iby an Claims

-4-Resolution Act, Pub. L . No. 110-301, 122 Stat. 2999 (2008), a nd Ex ecutive O rder

13,477 do not fore close a

rbitration. In support of their a

rgument that the L iby an Claims Resolution Act preclude s arbitra tion and re quires a c ourt to adjudicate the J PA's sc ope, the Da vés larg ely

rede ploy arguments that the Court fully

considere d and re

jected in r esolving the L G' s motion t o compel ar bitration. For example, they

ag ain contend tha

t the plain lang uag e of the L iby an Claims Resolution Act prec ludes a c ourt or ar

bitration panel fr om "r edistributing" funds awa rded a s part of the claims settlement proce ss betwee n the United States and L iby a once the funds ar e in the hands of U.S. nationals. See Da

vés' Mot. at 9. But as the Court previously conclude d, even if

the Court wer e to adopt the Davé s' rea ding of the Act, that inter

preta tion does not forec lose an a rbitrator f rom deter mining the Da

vés' rig hts and liabiliti es under the J PA in the first instance. See Pan Am 5

The Court also conc luded that the Davés' interpre tation of the Ac t would produce an 5 absurd r esult: if the Act' s immuni ty provision applied to claims settlement funds once those funds wer e distributed to a re cipient, then those funds c ould remain immune fr om judicial proce ss in perpetuity . See Pan Am F light 73 L iaison Group, 2010 WL1889167 at *11. The rec ipient could shelter f

rom his cre ditor in a bankruptc y proce edinga ca che of

money by alleg ing that the targ eted money

was " claims settlement funds." There is no evidence in either the te x t of the L iby an Claims Resolution Act or its legislative history that sug g ests Congr ess intended to cre ate a n untouchable c orpus of money for U.S. national victims of L iby an ter rorism. Such an outcome would " def[y ] rationality ," a nd would be " so contrar

y to perc eived soc ial values that Congr ess could not have intended it." United States v. Cook, 594 F.3d 883, 891 (D.C. Cir. 2010); ac cord Corle y

v. United States, 129 S. Ct. 1558, 1566-68 (2009). To be sure , the Davé s assert that they "did not conte nd that the Tre aty Compensation awa rd wa s immune from judicial proce ss for cla ims unrelated to cla ims for L iby an ter rorism." Davé s' Mot. at 7. I n other wor ds, they now sug g est that the L CRA's immunity provisions applies only wher e a pa

rty seeks a rec ipient's c laims settlement funds in a ca se re lating to L iby an terror ism. But the text of the L CRA does not lim it application of the immunity provision to case s arisingout of L iby an ter rorism. " I t is therefor e cle ar tha t [ the Davé s] are asking[t he Court] not to interpret [the L CRA] , but to revise it." H older v. Huma nitarian L aw Projec t, --- S. Ct. ---, 2010 WL 2471055, at *12 (June 21, 2010). The Da vés also sug g est that the immunity provision applies only

wher e for eig n nationals seek attachment of c laims settlement funds. See Davés' Mot. at 7. But ag ain, there is nothing in the text of the L CRA that lim its the imm unity -5-Flig ht 73 L iaison Group, 2010 WL1889167 at *11 n.10. The D avés' interpre tation say s nothing

about the powe r of a

n arbitrator to adjudicate the scope of a c ontrac t that purports to encompa ss funds awa

rded a s part of the claims settlement proc ess. Althoug h their interpr etation of the A ct may be re levant to how the a

rbitrator inter

prets the JP A, it does not prec lude the ar bitrator fr om initially consideringthe meaningof the Ag ree ment. The Da vés implicitly

rec og nize this fac t: by filing the ir dec laratory

judgme nt in California state cour t, the Davé s themselves soug ht a judicial deter mination whether the J PA encompasse d claims settlement funds. See a lso Davés' Reply at 4 n.2 (" At the hea

rt of this contrac t dispute is the interpretation of the J PA's te rms -- whe ther they extend to cover not only

rec overy by civil liti g ation, but also to the rec overy for U.S. victims by United States' sovere ign ne g otiation by executive ag ree ment.") . There fore , even w ere the Court of Appe als to adopt the Davés' interpre tation of the L iby an Claims Resolution Act, that decision would have no e ffe ct on this Court's conc lusion that the Davés' claims must be arbitra ted. In support of their a

rgument that Ex ecutive O rder 13,477 bars a

rbitration of their challeng e to the JP A, the Da vés ag ain offe r an a

rgument that the Court considere d and re jected: the plain languag e of the executive orde r pre cludes the L G from pur suing a rbitration ag ainst the Davé s. See Davés' Mot. at 11. Acc ordingto them, Ex ecutive O rder 13,477 preve nts a party from bring ing a

claim within the terms of Ar ticle I of the Claims Settlement Ag ree ment Be tween the United States of Ame rica and the Gr eat Socialist People' s L iby an Ar ab Jamahiriy a (" Claims Settlement Ag ree ment") . See id. And, in their view , the Claims Settl ement Ag ree ment prec ludes a suit by a for eig n national ag ainst an Amer ican a rising f rom the Pan Am F light 73 ter rorist attack. See id. There fore , they believe that beca

use the L G has for eig n members, it ca nnot bring provision's e ffe ct to claims broug ht by fore ign nationals. -6-its mot ion to compel arbitration ag ainst the Davé s. See id. But the Court ha s alrea dy found this

rea ding at odds with the plain languag e of Executive Or der 13,477 a nd the Claims Settl ement Ag ree ment: By its plain terms . . . Ex ecutive O rder 13,477 only

prohibits claims by

fore ign nationals ag ainst U.S. citiz ens ar ising out of L iby an ter rorist attac ks where the suit “implicates the r esponsibility ” of e ither L iby a or the United States. But the c laims asser ted in the Davé s' California c omplaint do not im plicate the r esponsibility of either the United States or L iby a -- they seek only

to determine the scope a

nd enfor cea bility of the JP A, and whe ther Crowe ll & Moring and the L G abided by their contra ctual commitments. Pan Am Flig ht 73 L iaison Group, 2010 WL1889167 at *12. Ther efor e, Executive Orde r 13,477 does not prec lude ar

bitration of the Davés' claims. Neve rtheless, the Court re cog nizes that to demonstrate a likelihood of succ ess on the merits, the Davé s need not e stablish "an a bsolute cer

tainty of succ ess." Population I nst. v. McPherson, 797 F .2d 1062, 1078 (D.C. Cir. 1986). Rather , "' [i ]twill ordinarily be enough that the [movant] has ra ised serious leg al questions g oing to the me rits, so serious, substantial, [ and] difficult as to make them a fa ir g round of litigation.'" I d. (quoting Washington Metro. A rea Transit Comm'n v. Holiday Tours, Inc., 559 F .2d 841, 844 (D.C. Cir. 1977)). He re, be cause this Court appea

rs to be the f

irst court to interpre t and L iby an Claims Resolution Act and Ex ecutive Orde r 13,477, the prope r interpr etation of these documents ar e a " fair ground for litigation." I d.;

see a lso I n re A ny

and All Funds or

Other A ssets in Brown Br others Ha rriman & Co. Account # 8870792 in the Name of

Tig er Eye I

nvs. L td., Civ. A. No. 08-mc-0807, at *1 (D.D.C. Mar. 10, 2009) (f air g round for

litigation wher e cour

t was first cour

t to interpret a statute). III. Harm to Other P artie s The Da vés next assert that abse nt a stay "a ll parties to the J PA with valid claims under it

-7-will be irrepa rably harme d, as any

and all re cover

y from the Tr eaty

Compensation will be dissipated by

costly arbitration." Davés' Mot. at 15. Although this may be so, the Court has previously

observe d that it is entirely "a ppropriate for the L G to use the re source s obtained under the terms of the J PA to defend the Ag ree ment' s validity , for a ll other parties to the A g ree ment have a n interest in see ing it upheld." Pan Am Flig ht 73 L iaison Group, 2010 WL1889167 at *8 n.8. And, ostensibly , the non-c halleng ing pa rties would have to pay

litigation costs out of their own pocke t if they

did not use common funds. Ther efor e, at be st for the Da vés, and a s they

conce de, the ha

rm to third parties " fac tor is neutral in the ba lancingof the four fac tors." D avés' Mot. at 15. IV. P ubl ic Intere st The Da vés off er that "[t] he public intere st weig hs in favor of g rantinga stay

pending appea l to accor d proper

defe renc e to the political bra nches' rig ht to intervene at the appellate level on issues re lated to fore ign policy ." D avés Mot. at 15. Spec ifically , the Davé s sugg est that they "a re in a ctive talks with the State De partment whic h is consideringan interve ntion in thi s

case to repre sent the United States' interests." Davé s' Mot. at 16. But as this Court previously observe d, "g iven the fa ct that this action is, at bottom, a private c ontrac tual suit," this is not "the ty pe of c ase in whic h the United States g ener ally would file a state ment of intere st." Pan Am Flig ht 73 L iaison Group, 2010 WL1889167 at *13 n.11 (c iting McD onald v. The Socia list People' s L iby an Ar ab Jamahiriy a, 666 F . Supp. 2d 50, 51-52 (D.D.C. 2009) ( statement of inter est filed whe re pa

rties broug ht suit aga inst L iby a in violation of Claims S ettlement Ag ree ment)). And the United States ha s offe red no indication that it i ntends to intervene or file a statement of interest in this action, eve n though the Davé s have be en asse rting for se vera l months t hat

-8-intervention wa s in the works.

In fac t, the public interest fa vors the uninterr

upted continuation of a

rbitration proce eding s. I n weig hing the public interest, the view s of " Congr ess, the ele cted r epre sentatives of the e ntire nation," are a " sense by which public intere st should be ga ug ed." Cuomo v. U.S. Nuclea r Regulatory

Comm'n, 772 F .2d 972, 978 (D.C. Cir. 1985) (pe r cur iam). A c ourt " cannot

' ignor e the judg ment of Cong ress, de liberate ly expressed in leg islation.'" United States v. Oakland Ca

nnabis Buyers' Coop, 532 U.S. 483, 497-98 (2001) (quotingVirg inian Ry . Co. v. Sy stem Fe d' n No. 40, 300 U.S. 515, 551 (1937)) . And the F eder al Arbitration Act "e stablishes a fede ral policy

favor ing a

rbitration, re quiring that [a court] rigor ously enfor ce a g ree ments to arbitrate." Shearson/Am. Express, Inc. v. McMa hon, 482 U.S. 220, 226 (1987) (inter nal citations and quotation marks omitted); ac cord D ean Witter Rey nolds I nc. v. B y

rd, 470 U.S. 213, 221 (1985). He nce, this fa ctor we ighs a g ainst g rantingthe Davé s' motion for a stay pendingappea l. CONCLUSION A stay pendingappea l is "an e x traordina ry reme dy ," Cuomo, 772 F .2d at 978, and the Davé s have not shown that this ca se wa rra nts such exceptional relief . Although the y

have r aised issues that are fair grounds for litig ation -- the inter pretation of the L iby an Claims Resolution Act and Executive Orde r 13,477 -- the abse nce of irrepa rable harm a

nd the fa ct that the public interest fa vors ar bitration are fata l to their motion. S ee Cha plaincy of F ull Gospel Churches v. Eng land, 454 F.3d 290, 297 ( D.C. Cir. 2006) (" A movant' s failure to show any irrepa rable harm is . . . gr ounds for re fusing to issue a pre liminary injunction, even if the othe r three fac tors enter ing the calc ulus merit such relief .") ; see a lso Holiday

Tours, Inc., 559 F .2d at 844 (standa rd simil ar f or pre liminary

injunctive relief

and for stay pendingappea l). Acc ording ly , the Court will

-9-deny

the motion. A separate Orde r will be issued on this date. /s/ J OHN D. B ATES United States District J udg e Dated: July

9, 2010

-10-