Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the

Clerk of any formal errors in order that corrections may be made before the

bound volumes go to press.

 United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2006 Decided November 21, 2006

No. 05-7048

SANDRA JEAN SIMPSON, INDIVIDUALLY

 AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF

DR. MOSTAFA FAHMY KARIM, DECEASED,

APPELLEE

v.

SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 00cv01722)

Arman Dabiri argued the cause and filed the briefs for

appellant.

Eric C. Sorenson argued the cause and filed the brief for

appellee.

Before: ROGERS and GARLAND, Circuit Judges, and
2

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: This appeal follows our remand to

afford the plaintiffs an opportunity to amend their complaint to

state a cause of action for hostage taking under the 1996

Terrorism Amendment to the Foreign Sovereign Immunities Act

(“FSIA”), 28 U.S.C. § 1605(a)(7). Simpson v. Socialist People’s

Libyan Arab Jamahiriya, 326 F.3d 230 (D.C. Cir. 2003)

(“Simpson I”). Libya contends that the district court lacks

subject matter jurisdiction and makes both legal and evidentiary

challenges to the amended complaint. We hold that because the

FSIA definition of hostage taking, 28 U.S.C. § 1605(e)(2),

focuses on the state of mind of the hostage taker, a plaintiff need

not show that the hostage taker communicated a demand

reflecting the hostage taker’s intended purpose to a third party.

We assume here that a plaintiff asserting an exception to

sovereign immunity under FSIA has a burden of production to

support its allegations of hostage taking, and further hold that

the plaintiffs met their burden and, conversely, that Libya has

failed to meet its burden of persuasion. Libya offers no

evidence of its own and points to nothing in the plaintiffs’

evidence that is inconsistent with the allegations in the amended

complaint about Libya’s possible intended purposes for the

detention. Accordingly, we affirm the order denying Libya’s

motion to dismiss the amended complaint on sovereign

immunity grounds.

I.

In February 1987, Sandra Jean Simpson, a United States

citizen, and her husband, Dr. Mostafa Karim, a permanent

resident of the United States who was born in Egypt, were

aboard the Carin II, a private yacht, cruising in the
3

Mediterranean Sea on a course from Italy to Greece, when an

unexpected storm forced the boat to veer off course and send a

radio distress signal. Libyan harbor authorities responded to the

signal on February 10, 1987, offering the port of Benghazi as a

safe harbor. According to the amended complaint, on February

14, 1987, while the boat was in port, Libyan authorities boarded

the boat and removed the passengers and crew. The Libyans

held the Carin II party captive and threatened to shoot them if

they attempted to leave. Three months into the captivity, Libyan

authorities forcibly separated Ms. Simpson and Dr. Karim,

permitting Ms. Simpson to fly to Zurich and placing her

husband in solitary confinement, in unsanitary conditions

without adequate medical care or proper food, for a period of

seven months. Dr. Karim was released from captivity in

November 1987, after intense negotiations among Belgium,

Egypt, and Libya; he died of cancer in 1993. 

Ms. Simpson and her husband’s estate sued Libya, alleging

torture, hostage-taking, battery, false imprisonment, intentional

infliction of emotional distress, and loss of consortium, and

seeking compensatory damages. Libya moved to dismiss the

complaint for: (1) lack of subject-matter jurisdiction, on the

ground that Ms. Simpson’s offer to arbitrate did not satisfy

FSIA’s jurisdictional requirements; (2) lack of personal

jurisdiction; and (3) failure to state a claim for torture and

hostage taking. The district court denied the motion. See

Simpson v. Socialist People’s Libyan Arab Jamahiriya, 180 F.

Supp. 2d 78, 89 (D.D.C. 2001). On appeal, this court held that

Ms. Simpson’s offer to arbitrate satisfied the jurisdictional

requirements of FSIA, see 28 U.S.C. § 1605(a)(7)(B)(I), but

reversed as to the torture claim for insufficient allegations of

severity, citing Price v. Socialist People’s Libyan Arab

Jamahiriya, 294 F.3d 82, 91-93 (D.C. Cir. 2002) (“Price I”), and

vacated and remanded on the hostage-taking claim so that the

plaintiffs could amend the complaint to allege facts supporting
4

the proposition that Libya intended to compel action or inaction

by a third party as a condition of releasing Ms. Simpson and Dr.

Karim. Simpson I, 326 F.3d at 233-35.

In response, the plaintiffs filed an amended complaint

which alleged three likely motives Libya might have had for

abducting Ms. Simpson and Dr. Karim. The amended complaint

stated that, in exchange for releasing them, Libya may have

wanted: (1) the United States to stop conducting air raids against

Libya; (2) revenge for previous U.S. air attacks; and (3) Egypt

to return military assets to Libya. It also referenced Libya’s

pattern of terrorist activity. The amended complaint cited

newspaper articles, Libya’s history of taking and releasing

hostages, and a 1997 Department of Defense intelligence report.

Upon Libya’s renewed motion to dismiss for lack of

subject-matter jurisdiction, personal jurisdiction, and for failure

to state a claim, pursuant to Federal Rules of Civil Procedure

12(b)(1), 12(b)(2) and 12(b)(6), the district court ordered the

plaintiffs to provide support for their jurisdictional claim. The

plaintiffs submitted additional materials, including an expert

opinion and the State Department’s Patterns of Global

Terrorism, to show that prior and similar acts demonstrated that

Libya intended to hold Ms. Simpson and Dr. Karim to trade

them for Libyan defectors and military equipment held in Egypt,

and/or as human shields against another United States air attack

on Libya. Libya submitted no materials of its own in response,

and the district court denied the motion to dismiss. The district

court found that the plaintiffs had produced sufficient evidence

of a quid pro quo to support two theories, regarding use of Ms.

Simpson and Dr. Karim as human shields and use of Dr. Karim

to obtain the return of Libyan defectors and material lost to

Egypt, but not as regards Libya’s alleged pursuit of retributive

justice as that entailed no form of exchange with a third party.

Simpson v. Socialist People’s Libyan Arab Jamahiriya, 362 F.
5

Supp. 2d 168, 178-80 (D.D.C. 2005). 

II.

On appeal, Libya challenges the legal and evidentiary basis

of the hostage taking claim on the ground that the plaintiffs

failed to show the essential “intended purpose.” Simpson I, 326

F.3d at 235 (citing Price I, 294 F.3d at 94). The court has

jurisdiction of this interlocutory appeal pursuant to 28 U.S.C.

§ 1291 and the collateral order doctrine of Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 546 (1949). See Kilburn

v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123,

1126 (D.C. Cir. 2004) (citations omitted). We review the denial

of the motion to dismiss for the legal and factual sufficiency of

the plaintiffs’ claims de novo. See id. at 1127 (citing Price I,

294 F.3d at 91).

Congress amended the FSIA in the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214, 1241-42 (Apr. 24, 1996), adding the so-called

“terrorism exception,” which denies sovereign immunity in any

case “in which money damages are sought against a foreign state

for personal injury or death that was caused by an act of . . .

hostage taking . . . .” 28 U.S.C. § 1605(a)(7). Section 1605(e)(2)

defines “hostage taking” as that term is used in Article I of the

International Convention Against the Taking of Hostages

(“ICATH” or “Convention”). See 28 U.S.C. § 1605(e)(2). As

the court recognized in Simpson I, 

‘[h]ostage taking’ occurs under ICATH (and so under

FSIA) when a person ‘seizes or detains and threatens

to kill, to injure or to continue to detain another person

in order to compel a third party . . . to do or abstain

from doing any act as an explicit or implicit condition

for the release of a hostage.’
6

326 F.3d at 234 (quoting Article I, ICATH, U.N. GAOR, Supp.

No. 39, U.N. Doc. A/34/39 (1979)). “The essential element of

the hostage-taking claim is that the intended purpose of the

detention be to accomplish the sort of third-party compulsion

described in the [C]onvention.” Id. at 234-35 (citing Price I,

294 F.3d at 94). There must be some “quid pro quo”

arrangement whereby the hostage would have been released

“upon performance or non-performance of any action by that

third party.” Price I, 294 F.3d at 94. 

The hostage-taking exception applies only if three

additional criteria are also satisfied: [(1)] the foreign state was

designated a “state sponsor of terrorism” at the time the act

occurred; [(2)] the foreign state was given a reasonable

opportunity to arbitrate a claim regarding an act that occurred

within the state’s borders; and [(3)] the claimant or victim was

a national of the United States. 28 U.S.C. § 1605(a)(7)(A), (B).

These three criteria are satisfied here, and thus the only question

is whether the plaintiffs’ claims fall within the main body of the

exception. Kilburn, 376 F.3d at 1127. Libya bears the burden

of “proving that the plaintiffs’ allegations do not bring its case

within a statutory exception to immunity.” Phoenix Consulting,

Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). 

A.

The legal question raised by Libya is whether third-party

awareness of a hostage-taker’s intent is a required element of the

hostage-taking exception that must be pled as a jurisdictional

fact and supported by evidence. Libya contends that the

plaintiffs can show intended purpose only where there is “a

minimum showing that the third party is at least aware of the

possibility that there is a hostage.” Appellant’s Br. at 15.

Libya’s contention, however, is wholly unsupported by our case

law and the statutory definition of hostage-taking.
7

In Simpson I, 326 F.3d at 234-35, the court looked to the

FSIA definition of hostage taking set forth in Price I. There, the

court emphasized that “[t]he Convention does not proscribe all

detentions, but instead focuses on the intended purpose of the

detention.” Price I, 294 F.3d at 94. In Price, the plaintiffs

showed that they were detained to demonstrate the hostagetaker’s foreign policy – in that case, Libya’s support of Iran’s

holding of American hostages. Id. The court held that plaintiffs

did not meet the intentionality requirement. The Convention 

speaks in terms of conditions of release; the defendant

must have detained the victim in order to compel some

particular result, specifically to force a third party

either to perform an act otherwise unplanned or to

abstain from one otherwise contemplated so as to

ensure the freedom of the detainee. 

Id. Consequently, to show intended purpose, the plaintiff must

“suggest[] [a] demand for quid pro quo terms between . . . Libya

and a third party whereby [the hostages] would have been

released.” Id. The plaintiff must “point[] to [a] nexus between

what happened to [the hostages] in Libya and any concrete

concession that Libya may have hoped to extract from the

outside world.” Id. (emphasis added). 

The plain text of the FSIA definition, explanatory

commentary on the Convention, and precedent under the Federal

Hostage Taking Act (“FHTA”), 18 U.S.C. § 1203, which defines

the behavior proscribed in terms identical to the Convention, all

reflect that a plaintiff need not allege that the hostage taker had

communicated its intended purpose to the outside world.

Consistent with the plain text, the court in Price I explained that

the intentionality requirement focused on the mens rea of the

hostage taker. 294 F.3d at 94. The commentary, which Libya

dismisses without explanation, similarly explains that
8

“demands” are not required to establish the element of hostage

taking: “The words ‘in order to compel’ do not require more

than a motivation on the part of the offender.” See Joseph J.

Lambert, Terrorism and Hostages in International Law, 1979,

at 306. Case law under the FHTA reflects the same analysis.

Where air hijackers prosecuted under the FHTA told their

hostages of their intended purpose, evidence that a third party

was aware of that purpose was not an essential element for

conviction. United States v. Yunis, 924 F.2d 1086, 1089-90,

1096-97 (D.C. Cir. 1991); cf. United States v. Crosby, 713 F.2d

1066, 1070-71, 1079 (D.C. Cir. 1983) (regarding 18 U.S.C. §

1201(a)(2)). Libya’s assertion that these cases are inapplicable

because they involve private actors who, unlike a sovereign,

have no authority to detain foreigners misses the point. The text

of the Terrorism Exception and the commentary make clear that

plaintiffs need not demonstrate that a third party was aware of

the hostage taking. 

It suffices, then, for a plaintiff bringing suit under the FSIA

Terrorism Exception to allege a quid pro quo as the hostagetaker’s intended result from the detention at issue. See Price I,

294 F.3d at 94. Such an allegation is legally sufficient to

withstand a motion to dismiss, and the law requires no further

showing with respect to third-party awareness of the defendant’s

hostage-taking intent. Here, the plaintiffs have alleged the

required quid pro quo, and thus their jurisdictional facts are

legally sufficient to state a claim under the Terrorism Exception.

However, a sovereign defendant disputing FSIA jurisdiction

may also contest the jurisdictional facts alleged by the plaintiff.

See Phoenix Consulting, 216 F.3d at 40. In such cases, the court

is obliged to review any determinations of factual sufficiency

made by the district court.

B.

Libya challenges the competence of plaintiffs’ evidence
9

supporting their allegations of Libya’s intended purpose and the

district court’s failure to resolve an additional factual

jurisdiction dispute. 

First, Libya maintains that the “hypothetical scenarios” do

not constitute either an explicit or an implicit condition for the

release of Ms. Simpson or Dr. Karim. It points to the fact that

in order to find that the plaintiffs had sufficiently alleged two

theories for Libya’s possible “intended purposes,” the district

court relied on the plaintiffs’ proffered expert opinion of Mr.

Mayer Nudell. According to Libya, Mr. Nudell’s affidavit did

not direct the district court to any implicit conditions for release,

but only to “likely ‘scenarios’” and Mr. Nudell never asserted

that he had knowledge of the scenarios independent of the

materials supplied by the plaintiffs. Libya concludes that such

“flimsy grounds” cannot support the exercise of subject matter

jurisdiction. Even viewing the evidence most favorably to the

plaintiffs, Libya maintains that the amended complaint and Mr.

Nudell’s hypothetical scenarios do not point to any nexus

between what happened to Ms. Simpson and Dr. Karim and any

concrete concession that Libya may have hoped to extract from

the outside world. 

In Kilburn, the court noted that, beyond the defendant’s

ultimate burden of persuasion, other burdens may be placed on

the parties when the defendant files a motion to dismiss, 376

F.3d at 1131, although the court has never held that either the

plaintiff or the defendant bears the initial burden of production,

id. The court has been clear, however, that when a plaintiff

provides evidentiary support for its allegations, based on the

assumption that it has the burden of production, a defendant that

chooses to remain silent risks denial of its motion to dismiss.

More explicitly, in Kilburn, the court stated that Libya, in such

circumstances, had “satisfied neither a burden of production nor

[its] required burden of persuasion.” 376 F.3d at 1132; cf Price
10

1

 Fed. R. Evid. 703 provides in pertinent part:

The facts or data in the particular case upon which an

expert bases an opinion or inference may be those

perceived by or made known to the expert at or

before the hearing. If of a type reasonably relied

upon by experts in the particular field in forming

opinions or inferences upon the subject, the facts or

data need not be admissible in evidence in order for

the opinion or inference to be admitted. 

v. Socialist People’s Libyan Arab Jamahiriya, 389 F. 3d 192,

198 (D.C. Cir. 2004) (“Price II”). As in Kilburn, we assume

here that a plaintiff who relies on an exception to the FSIA

immunity provisions has an initial burden of production. We

hold that the plaintiffs have met their burden.

Based on Mr. Nudell’s extensive resume and the fact that

courts have previously taken judicial notice of the proffered

Patterns of Global Terrorism as representing the official

position of the United States government, see Kilburn, 376 F.3d

1123, the district court did not abuse its discretion in admitting

this evidence, see Kumho Tire v. Carmichael, 526 U.S. 137, 142

(1999); General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997).

Mr. Nudell’s opinion was consistent with the requirements of

Fed. R. Evid. 703, which does not require independent evidence

nor limit an expert to consideration of admissible evidence in

forming an opinion.1

 See Ambrosini v. Labarraque, 101 F.3d

129, 132 (D.C. Cir. 1996). And as the district court noted on

remand, see Simpson, 362 F. Supp. 2d at 176 n.5, this court

affirmed the denial of a motion to dismiss under Rule 12(b)(1)

partially in consideration of the evidentiary weight of State

Department and CIA documents in Kilburn, 376 F.3d at 1131.

The plaintiffs needed to know why Libya acted as it did, but
11

could not compel Libya to explain. Instead, the plaintiffs

submitted their jurisdictional filings and put forward their best

assessments, based on available information. In that light, it was

eminently reasonable for the district court to find sufficient the

purposes proffered by the plaintiffs. See Price II, 389 F.3d at

197. Although Libya challenges the sufficiency of “hypothetical

scenarios,” the plaintiffs alleged facts and made offers of proof

on every salient fact regarding the possible reasons for Libya’s

detention of Ms. Simpson and Dr. Karim. Based on the

circumstantial evidence in the relevant proffers, see Holland v.

United States, 348 U.S. 121, 140 (1954), the district court could

reasonably draw inferences regarding Libya’s state of mind and

its intended purposes for detaining Ms. Simpson and Dr. Karim

based on the plaintiffs’ substantiated theories about Libya’s

intended purposes. 

Second, Libya contends that the district court erred by

failing to address all of the disputed jurisdictional facts,

specifically ignoring evidence that “highlighted legitimate

reasons for [Ms.] Simpson’s detention as well as evidence

showing that [Ms.] Simpson and [Dr.] Karim were not

hostages.” The district court resolved all of the disputed facts

necessary to rule on Libya’s motion to dismiss. See Kilburn,

376 F.3d at 1127 (citing Phoenix Consulting, 216 F.3d at 39).

Libya’s reference to an alternative, but not necessarily

contradictory, explanation for their detention is not enough to

establish that the plaintiffs’ allegations do not bring the case

within a statutory exception to immunity. Libya may have had

more than one reason for their detention. Consequently, as the

district court found that the plaintiffs had sufficiently established

two purposes unrelated to the Egyptian espionage ring, it would

not necessarily follow that the district court was required to

address the third possible purpose. 

Moreover, Libya is relying on evidence that on its face does
12

not establish the propositions it claims. The earliest State

Department cable that Libya references indicates only that,

initially, a source in Tripoli believed that the Carin II party was

being investigated in connection with an Egyptian espionage

ring. The cable is dated April 1987. Over the next several

months, however, various other cables indicate that: Ms.

Simpson and Dr. Karim could shed no light on why they were

detained; the State Department was considering a diplomatic

note to Libya “to protest Ms. Simpson’s unwarranted detention”

(emphasis added); and although the Belgian consul general

thought he might understand why the Carin II party was being

detained, he did not elaborate. Thus, insofar as the cables show,

by August 1987, the United States government was no longer

relying on the Egyptian espionage ring as an explanation for the

detention. Another cable indicates that Ms. Simpson, at least,

could have left Libya without her passport in May 1987.

However, again, in August 1987, the State Department was

concerned about her continued “unwarranted detention.” The

other evidence cited by Libya describes how the hostages were

treated, and is unrelated to whether or not they would have been

allowed to depart from Libya had they chosen to do so. 

Accordingly, we affirm the denial of Libya’s motion to

dismiss on grounds of sovereign immunity and we remand the

case to the district court for further proceedings.