                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


   EDWINA R. HEGNA, as Executrix of
   the Estate of Charles F. Hegna, et al.,

                             Plaintiffs,
                                                             Civil Action 08-274 (RC)
                        v.

   ISLAMIC REVOLUTIONARY GUARD
   CORPS, et al.,

                             Defendants.


                                    MEMORANDUM OPINION

       Charles Hegna was an American passenger on a flight hijacked by Hezbollah terrorists in

December 1984. The flight was scheduled to proceed from Kuwait City to Karachi by way of

Beirut; the terrorists diverted the plane to Tehran, where they murdered Mr. Hegna. His widow

and four children brought suit under the terrorism exception to the Foreign Sovereign

Immunities Act. The court entered a default judgment against the Islamic Republic of Iran and

its Ministry of Information and Security, both of which supported Hezbollah. In 2008, Congress

enacted a new terrorism exception and repealed the original version. The Hegnas now bring this

second action under that new provision, seeking additional damages for the same injuries at issue

in their earlier suit. The statute does not clearly authorize this second suit—and if it did, it

would raise a serious question as to whether it violated the Article III prohibition on the

legislative revision of final judicial judgments. This court therefore resolves the statutory

ambiguity to avoid the constitutional question, holding that the present suit is not authorized by

statute, denying the plaintiffs’ motion for a default judgment, and dismissing their claims.
                                        I. BACKGROUND

       The Foreign Sovereign Immunities Act “grants United States courts both subject matter

and personal jurisdiction (where service of process has been made) over any claim against a

foreign state as to which the state is not entitled to immunity.” World Wide Minerals, Ltd. v.

Republic of Kazakhstan, 296 F.3d 1154, 1159 n.5 (D.C. Cir. 2002) (citing 28 U.S.C. § 1330(a),

(b)).1 It is “the sole basis for obtaining jurisdiction over a foreign state in our courts.” Argentine

Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989); see also Republic of

Austria v. Altmann, 541 U.S. 677, 688–91 (2004); Verlinden B.V. v. Central Bank of Nigeria,

461 U.S. 480, 486–89 (1983) (discussing the history of foreign sovereign immunity in U.S.

courts and the structure of the Foreign Sovereign Immunities Act). Under the Foreign Sovereign

Immunities Act, “foreign states generally are entitled to immunity unless the case falls within

one of a list of statutory exceptions.” Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 839

(D.C. Cir. 2009); see 28 U.S.C. § 1604 (granting immunity); id. §§ 1605, 1065A, 1607

(providing exceptions). When the Act was signed in 1976, Pub. L. No. 94-583, 90 Stat. 2891

(codified at 28 U.S.C. §§ 1330, 1332, 1391, 1441, 1602–11 (1976)), the exceptions included

“cases in which the state has waived its immunity, 28 U.S.C. § 1605(a)(1), cases based upon

various forms of commercial activity, id. § 1605(a)(2), takings of property in violation of



       1
          Our courts can exercise personal jurisdiction over foreign states and their agents even
when those states do not have “minimum contacts” with the jurisdiction, see Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945), because “foreign states are not ‘persons’ protected by the
Fifth Amendment,” from which the minimum-contacts requirement is derived, GSG Grp. Ltd. v.
Nat’l Port Authority, 680 F.3d 805, 813 (D.C. Cir. 2012) (quoting Price v. Socialist People’s
Libyan Arab Jamahiriya, 294 F.3d 82, 96 (D.C. Cir. 2002)); accord TMR Energy Ltd. v. State
Property Fund of Ukraine, 411 F.3d 296, 299–303 (D.C. Cir. 2005) (extending Price to agents of
foreign states).

                                                  2
international law, id. § 1605(a)(3), and torts committed in the United States, id. § 1605(a)(5),”

Price, 294 F.3d at 87 (citation expanded); see also Central Bank of Nigeria, 461 U.S. at 489 n.11

(listing other exceptions). The Act allowed for compensatory—but not punitive—damages to be

levied against foreign states. 28 U.S.C. § 1606 (1976). “[A]n agency or instrumentality” of a

state could, however, be held liable for punitive damages. Id.

       In 1996, as part of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-

132, § 221(a), 110 Stat. 1214, Congress added “an additional exception colloquially known as

the ‘terrorism exception,’” Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d

1123, 1126 (D.C. Cir. 2004), which withdrew immunity for certain foreign states in cases

       in which money damages are sought against a foreign state for personal injury or
       death that was caused by an act of torture, extrajudicial killing, aircraft sabotage,
       hostage taking, or the provision of material support or resources . . . for such an act
       if such act or provision of material support is engaged in by an official, employee,
       or agent of such foreign state while acting within the scope of his or her office,
       employment, or agency . . . .

28 U.S.C. § 1605(a)(7) (Supp. II 1996). “This exception applie[d] only if three additional

criteria [were] also satisfied: the foreign state was designated a ‘state sponsor of terrorism’ at the

time the act occurred; the foreign state was given a reasonable opportunity to arbitrate a claim

regarding an act that occurred within the state’s borders; and the claimant or victim was a

national of the United States.” Kilburn, 376 F.3d at 1126–27 (citing 28 U.S.C. § 1605(a)(7)(A),

(B)). When the terrorism exception was enacted, “it was far from clear whether . . .

§ 1605(a)(7), in and of itself, served as a basis for an independent federal cause of action against

foreign state sponsors of terrorism.” In re Islamic Republic of Iran Terrorism Litig., 659 F.

Supp. 2d 31, 42 (D.D.C. 2009). “[Q]uestions remained . . . whether any civil claims or money

damages were available by virtue of that enactment.” Id. at 43.

                                                  3
       “Five months after the passage of [the terrorism exception], Congress enacted a separate

provision, titled Civil Liability for Acts of State Sponsored Terrorism, which created a private

right of action against officials, employees, and agents of foreign states for the conduct described

in § 1605(a)(7).” Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1029 (D.C. Cir.

2004) (citing Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, Div. A,

Title I, § 101(c) [Title V, § 589], 110 Stat. 3009-172 (codified at 28 U.S.C. § 1605 note)). That

provision is known as the “Flatow Amendment,” in memory of Alisa Flatow, an American

college student who died from the injuries she suffered in a terrorist bombing in Israel. Id.; In re

Terrorism Litig., 659 F. Supp. 2d at 43. The Flatow Amendment provides that:

       [A]n official, employee, or agent of a foreign state designated as a state sponsor of
       terrorism . . . while acting within the scope of his or her office, employment, or
       agency shall be liable to a United States national or the national’s legal
       representative for personal injury or death caused by acts of that official, employee,
       or agent for which the courts of the United States may maintain jurisdiction under
       section 1605(a)(7) of title 28, United States Code for money damages which may
       include economic damages, solatium, pain, and suffering, and punitive damages if
       the acts were among those described in section 1605(a)(7).

28 U.S.C. § 1605 note (Supp. II 1996) (emphasis added). Upon its enactment, it was

“undisputed that the Flatow Amendment permit[ted] U.S. nationals to pursue a private right of

action for terrorism against officials, employees, and agents of designated foreign states acting in

their personal capacities.” Cicippio-Puleo, 353 F.3d at 1029. It was an open question, however,

“whether section 1605(a)(7) and the Flatow Amendment similarly provide[d] a cause of action

against a foreign state.” Id. (emphasis deleted).

       Most judges in this district answered that question in the affirmative. Regier v. Islamic

Republic of Iran, 281 F. Supp. 2d 87, 99 (D.D.C. 2003) (Bates, J.) (holding, on the basis of

§ 1607(a)(7) and the Flatow Amendment, that “plaintiffs have a cause of action against Iran”);

                                                    4
Kilburn v. Republic of Iran, 277 F. Supp. 2d 24, 37 (D.D.C. 2003) (Urbina, J.) (holding that “the

Flatow Amendment does provide victims of state-sponsored acts of terrorism with a cause of

action against the culpable foreign state”); Acree v. Republic of Iraq, 271 F. Supp. 2d 179, 215

(D.D.C. 2003) (Roberts, J.) (“Section 1605(a)(7), as amended [by the Flatow Amendment],

creates a federal cause of action against . . . the state and its instrumentalities themselves.”);

Surette v. Islamic Republic of Iran, 231 F. Supp. 2d 260, 267 (D.D.C. 2002) (Friedman, J.);

Mousa v. Islamic Republic of Iran, 238 F. Supp. 2d 1, 11 (D.D.C. 2001) (Bryant, J.) (“Under the

[Foreign Sovereign Immunities Act], a foreign state may be liable when there is injury from a

terrorist act that was perpetrated by the designated state or an agent receiving material support

from the designated state” and other conditions are met.); Daliberti v. Republic of Iraq, 146 F.

Supp. 2d 19, 25 (D.D.C. 2001) (Oberdorfer, J.) (finding cause of action against Iraq under the

Flatow Amendment); Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 106 (D.D.C. 2000)

(Green, J.H., J.) (holding that the Flatow Amendment “provides a cause of action against a

foreign state . . . for any act which would give a court jurisdiction under 28 U.S.C.

§ 1607(a)(7)”); Higgins v. Islamic Republic of Iran, 2000 WL 33674311, at *7 (D.D.C. Sept. 21,

2000) (Kollar-Kotelly, J.); Anderson v. Islamic Republic of Iran, 90 F. Supp. 2d 107, 113

(D.D.C. 2000) (Jackson, J.) (“Section 1605(a)(7) of the Foreign Sovereign Immunities Act . . .

provides a cause of action against a foreign state . . . .”); Flatow v. Islamic Republic of Iran, 999

F. Supp. 1, 12–15 (D.D.C. 1998) (Lamberth, J.) (finding a federal cause of action against Iran

under § 1607(a)(7) and the Flatow Amendment, construed in pari materia).

       Another judge disagreed. In Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d 140

(D.D.C. 2002), former hostages taken from the American Embassy in Tehran during the Iranian


                                                   5
Revolution and held for more than a year brought suit against Iran under the Foreign Sovereign

Immunities Act. The hostages had been released after the United States reached an executive

agreement known as the Algiers Accords with the Islamic Republic of Iran. As part of the

Algiers Accords, the United States committed to bar its courts from hearing any claims arising

out of the seizure and detention of the Roeder plaintiffs. That commitment was implemented by

executive order and Treasury regulation. Roeder, 195 F. Supp. 2d at 146–48. The question in

Roeder was whether § 1605(a)(7) and the Flatow Amendment had abrogated the Algiers Accords

by authorizing the plaintiffs’ suit against Iran. The Hon. Emmet G. Sullivan ruled that they had

not, noting that “the Flatow Amendment does not on its face create a cause of action against

foreign states,” id. at 172, but rather “speaks only of a suit against individuals,” and moreover

that “nothing in the elements of § 1605(a)(7) requires or permits a cause of action against a

foreign state,” id. at 173. Judge Sullivan held that because the Flatow Amendment was “at best

ambiguous with respect to whether plaintiffs can sue Iran,” id. at 175, and “[i]n light of

Congress’[s] failure to express a clear intent to abrogate the Algiers Accords, this Court can not

interpret these ambiguous statutes to create a cause of action for plaintiffs against Iran,” id. at

184.

       In 2000, the plaintiffs in this case brought suit against the Islamic Republic of Iran and its

Ministry of Information and Security. The defendants did not appear. After a bench trial during

which he heard evidence regarding the plaintiffs’ claims, the Hon. Henry H. Kennedy, Jr. found

both Iran and its Ministry liable for the suffering of Charles Hegna, his widow, and their four

children as a result of Mr. Hegna’s 1984 murder by hijackers associated with Hezbollah. Judge

Kennedy held that “[b]ecause Charles Hegna was falsely imprisoned, brutally assaulted, and


                                                  6
tortured by those engaged in state sponsored terrorism and his death was caused by a willful and

deliberate act of extra-judicial killing, plaintiffs have a cause of action under 28 U.S.C.

§ 1605(a)(7) and 28 U.S.C.A. § 1605 note.” Memorandum at 14–15, Hegna v. Islamic Republic

of Iran, No. 00-cv-716 (D.D.C. Jan. 22, 2002) (“Hegna I”). He entered judgment in favor of the

plaintiffs, finding the defendants jointly liable for $42 million in compensatory damages, and the

Iranian Ministry of Information and Security solely liable for $333 million in punitive damages.

Amended Judgment, Hegna v. Islamic Republic of Iran, No. 00-cv-716 (D.D.C. Feb. 1, 2002).

The judgment was not appealed.

       In 2004, the D.C. Circuit finally resolved the question of whether 28 U.S.C. § 1605(a)(7)

and the Flatow Amendment, id. at § 1605 note, provided a cause of action against foreign states.

In Cicippio-Puleo v. Islamic Republic of Iran, the Circuit held that they did not, concluding that

“neither 28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two considered in tandem,

creates a private right of action against a foreign government.” 353 F.3d at 1033. Rather, as the

Circuit explained, “[s]ection 1605(a)(7) merely waives the immunity of a foreign state without

creating a cause of action against it, and the Flatow Amendment only provides a private right of

action against officials, employees, and agents of a foreign state, not against the foreign state

itself.” Id. Moreover, that cause of action was “limited to claims against those officials in their

individual, as opposed to their official, capacities,” because an official-capacity suit is essentially

a suit against the government itself, and the Flatow Amendment did not provide a cause of action

against foreign states. Id. at 1034. Plaintiffs who wished to bring suit against a foreign state

under the jurisdiction permitted by § 1605(a)(7) would need “to state a cause of action under

some other source of law, including state law.” Id. at 1036.


                                                  7
       “As a result of the Cicippio-Puleo decision, plaintiffs in . . . terrorism cases under

§ 1605(a)(7) began to use that provision as a ‘pass-through’ to causes of action[] found in state

tort law.” In re Terrorism Litig., 659 F. Supp. 2d at 46 (quoting Bodoff v. Islamic Republic of

Iran, 424 F. Supp. 2d 74, 83 (D.D.C. 2006)). Many plaintiffs were “able to litigate claims based

on the tort law of the state jurisdiction where they were domiciled at the time of the terrorist

incident giving rise to the lawsuit.” Id. But others “had their claims denied because they were

domiciled in jurisdictions that did not afford them a substantive claim.” Id. at 47 (describing

cases). After Cicippio-Puleo, it was also clear that punitive damages could not be levied against

state sponsors of terrorism. Because the Flatow Amendment “was not intended to provide for

claims against foreign states, the bar on punitive damages in [28 U.S.C.] § 1606 of the Foreign

Sovereign Immunities Act remained [intact], even with respect to state sponsors of terrorism.”

Id. at 48 (abbreviation expanded).

       Congress repealed § 1605(a)(7) in 2008 and replaced it with a new terrorism exception,

codified at 28 U.S.C. § 1605A. See National Defense Appropriations Act for Fiscal Year 2008,

Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338–44. That exception “creat[ed] a federal right of

action against foreign states, for which punitive damages may be awarded,” and thereby

abrogated Cicippio-Puleo. Simon v. Republic of Iraq, 529 F.3d 1187, 1190 (D.C. Cir. 2008)

(citing 28 U.S.C. § 1605A(c)). It also authorized compensation for special masters, see 28

U.S.C. § 1605A(e), and provided plaintiffs with the right to file notices of lis pendens, id. at

§ 1605A(d), which “are in effect automatic pre-judgment liens on property belonging to a

designated state sponsor of terrorism,” In re Terrorism Litig., 659 F. Supp. 2d at 62. Section

1083(a) of the 2008 amendments set out this new terrorism exception, while § 1083(b) repealed


                                                  8
28 U.S.C. § 1605(a)(7) and made other conforming amendments. Section 1083(c), which gave

rise to this suit, provides in relevant part as follows:

        (c) APPLICATION TO PENDING CASES.—
               (1) IN GENERAL.—The amendments made by this section shall apply to any
               claim arising under section 1605A of title 28, United States Code.
               (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, or [the Flatow Amendment] before the date of
                                enactment of this Act,
                                (ii) relied upon either such provision as creating a cause of
                                action,
                                (iii) has been adversely affected on the grounds that either or
                                both of these provisions fail to create a cause of action against
                                the state, and
                                (iv) as of such date of enactment, is before the courts in any
                                form, including on appeal or motion under rule 60(b) of the
                                Federal Rules of Civil Procedure,
                       that action, and any judgment in the action shall, on motion made by
                       the 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), or
                                (ii) in any action that was originally brought, before the date
                                of the enactment of this Act, under section 1605(a)(7) of title
                                28, United States Code, or [the Flatow Amendment], and is
                                refiled under section 1605A(c) of title 28, United States
                                Code,
                       to the extent such defenses are based on the claim in the action.
                       (C) TIME LIMITATIONS.—A motion may be made or an action may be
                       refiled under subparagraph (A) only—
                                (i) if the original action was commenced not later than the
                                latter of—
                                         (I) 10 years after April 24, 1996; or
                                         (II) 10 years after the cause of action arose; and
                                (ii) within the 60-day period beginning on the date of the
                                enactment of this Act.


                                               9
               (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, or [the Flatow Amendment], any other action arising out of the same
               act or incident may be brought under section 1605A of title 28, United States
               Code, 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 the enactment of this Act.

Pub. L. No. 110-181, § 1083(c), 122 Stat. 3, 342–43. This provision is codified as a note to

§ 1605A, see 28 U.S.C. §1605A note (Supp. II 2008), but for ease of reference the court will

refer to it as § 1083(c). Under § 1083(c), “plaintiffs with suits pending against foreign nations as

of January 28, 2008,” had “three options for obtaining the benefits of § 1605A and seeking

punitive damages: a motion to convert the action, a refiling of the action, or the filing of a related

action.” Bakhtiar v. Islamic Republic of Iran, 668 F.3d 773, 775 (D.C. Cir. 2012). The question

of how, if at all, plaintiffs whose § 1605(a)(7) suits were no longer pending could invoke the

new cause of action was far less clear.

       Courts in this district quickly determined that § 1083(c)(2) was limited by its plain text to

cases that were “before the courts in any form” on the date of its enactment.

§ 1083(c)(2)(A)(iv). Straining against that limitation, some plaintiffs tried to “construe the

phrase ‘before the courts in any form’ to encompass all cases in which a final judgment in favor

of the plaintiff has been entered yet remains unsatisfied.” Bodoff v. Islamic Republic of Iran,

567 F. Supp. 2d 141, 142 (D.D.C. 2008) (Lamberth, C.J.). Those arguments were generally

rejected. See, e.g., Holland v. Islamic Republic of Iran, 545 F. Supp. 2d 120, 121–22 (D.D.C.

2008) (Kollar-Kotelly, J.) (“Plaintiffs’ suggestion—that this case is currently pending because of

the open-ended possibility of filing an attachment or executing the judgment in the future—is

inconsistent with the statutory language that requires the case to be before the Court as of


                                                 10
January 28, 2008.”); accord Higgins v. Islamic Republic of Iran, 545 F. Supp. 2d 122, 123

(D.D.C. 2008) (Kollar-Kotelly, J.) (same); Bodoff, 567 F. Supp. 2d at 142; Blais v. Islamic

Republic of Iran, 567 F. Supp. 2d 143, 144 (D.D.C. 2008) (Lamberth, C.J.); Haim v. Islamic

Republic of Iran, 567 F. Supp. 2d 146, 147 (D.D.C. 2008) (Lamberth, C.J.) (both quoting

Holland with approval).2

       Section 1083(c)(3) is not explicitly limited to plaintiffs with pending cases. Many

plaintiffs have therefore interpreted it to allow a second suit on the basis of the same injuries at

issue in an earlier—and no longer pending—suit brought under § 1605(a)(7) or the Flatow

Amendment. Some judges have accepted this interpretation. See, e.g., In re Terrorism Litig.,

659 F. Supp. 2d at 64–65 (holding that “§ 1083(c)(3) enables plaintiffs who achieved final

judgments under the former terrorism exception, § 1605(a)(7), to pursue new federal causes of

action under § 1605A based on the same prior act or incident,” and thereby “offers an avenue of

relief in those cases that reached final judgment some years prior to the enactment of the 2008

[amendments] and therefore are less likely to be ‘before the court[ ] in any form,’ as required for

treatment on motion under § 1083(c)(2)” (citing Bodoff, 567 F. Supp. 2d at 142–43) (final

alteration in original)); see also id. at 63 (discussing the scope of § 1083(c)(3) and concluding

that “the heading of § 1083(c)—‘Application to Pending Cases’—is something of a misnomer




       2
           Judge Kennedy disagreed, granting the plaintiffs’ motion, brought under § 1083(c)(2),
to convert the judgment in their first action to a judgment under § 1605A. See Amended
Judgment, Hegna v. Islamic Republic of Iran, No. 00-cv-716 (D.D.C. Apr. 29, 2010). The
plaintiffs had argued that their “action was still before the courts . . . awaiting resumption of
enforcement proceedings in respect of plaintiffs’ existing judgment liens on Iran’s real
property.” Pltfs.’ Mot. to Modify Judgment Pursuant to H.R. 4986, Sec. 1083, at 4, Hegna v.
Islamic Republic of Iran, No. 00-cv-716 (D.D.C. Mar. 17, 2010).

                                                 11
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”).

       This interpretation is not, however, the only reasonable one. When the Roeder plaintiffs

brought suit under § 1083(c)(3), arguing that their new case was “related” to their earlier case,

which had been dismissed as barred by the Algiers Accords, Roeder, 195 F. Supp. 2d at 184,

aff’d 333 F.3d 228 (D.C. Cir. 2003), Judge Sullivan was “confronted with the same fundamental

question [that he faced in the earlier suit]: whether Congress ha[d] acted definitively to abrogate

the Algiers Accords and enable plaintiffs to move forward in their suit for damages,” Roeder v.

Islamic Republic of Iran, 742 F. Supp. 2d 1, 3 (D.D.C. 2010) (“Roeder II”). In Roeder II, the

plaintiffs argued that § 1083(c)(3) gave them an unambiguous right to sue Iran under § 1605A,

even though their new suit was not related to any pending suit; the United States intervened to

argue that § 1083(c)(3) only authorized suits that were related to cases pending at the time of the

2008 amendments. The government acknowledged that “the statute is anything but a model of

clarity,” but pointed to the title of § 1083(c), “Application to Pending Cases,” and the verbal

tense of the phrase “has been timely commenced,” § 1083(c)(3), which it read to imply that the

case had been commenced and continued to be pending when the 2008 amendments were

enacted. Roeder II, 742 F.Supp. 2d at 13 (first quotation from the government’s brief). Judge

Sullivan held that § 1083(c)(3) was ambiguous as to whether it permitted suits unrelated to

pending cases: the provision could “be reasonably read to limit [its] 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 [2008 amendments] became law, as plaintiffs argue.” Id. at 17.


                                                 12
He did not need to resolve that ambiguity to decide the case. See id. at 19 (noting that “this

Court does not necessarily disagree . . . that § 1083(c)(3) could support the reading urged by

plaintiffs”). Because an executive agreement cannot be abrogated by an ambiguous statute in the

absence of clear congressional intent to abrogate, which Judge Sullivan found lacking, Roeder II

was dismissed. Id. at 20.

       The D.C. Circuit affirmed both the reading of § 1083(c)(3) and the dismissal. Without

resolving the statutory ambiguity, the Circuit noted that:

       the related action provision of § 1083(c)(3) does not seem to contemplate that the
       later, related suit would be one that simply replicates the earlier action. The section
       speaks of “any other action,” and it turns on whether the new action “arises from”
       the same act or incident, not on whether it is identical to the prior suit or even
       brought by the same plaintiff. In addition, the refiling of duplicate actions is dealt
       with in § 1083(c)(2), but that is a provision Roeder cannot invoke because it
       expressly requires that the earlier action be pending at the time of the 2008
       amendments. See National Defense Authorization Act for Fiscal Year 2008,
       § 1083(c)(2)([A])(iv).

Roeder v. Islamic Republic of Iran, 646 F.3d 56, 61 (D.C. Cir. 2011). The Circuit emphasized

that those textual indications were “not . . . conclusive” but merely “cast[ ] some doubt on

whether § 1083(c) is as clear as Roeder makes it out to be.” Id. The court went on to recognize

“the force of Roeder’s argument” that given “the express pending-action requirement contained

in § 1083(c)(2) . . . . the absence of similar language in § 1083(c)(3) strongly suggests that

subsection (c)(3) contains no such requirement.” Id. Indeed, the court acknowledged, “[i]n the

end [Roeder’s argument] may well represent the best reading of § 1083(c)(3).” Id.

       The Circuit was not, however, merely looking for the best reading. Because of the

Algiers Accords, the Roeder plaintiffs would only prevail if their reading was unambiguously

correct. Id. The court ruled that it was not:


                                                 13
        With respect to whether Roeder’s current suit qualifies as a related action,
        § 1083(c)(3) is unclear. Section 1083(c)(3) refers to “an action” that “has been
        timely filed” under the Foreign Sovereign Immunities Act’s prior terrorism
        exception. Roeder contends that this unambiguously refers to every action brought
        before the enactment of § 1083 that was timely when filed. We think, however, that
        the language can fairly be read to refer only to those cases timely commenced under
        § 1605(a)(7) that were still pending when the Act was passed. If Congress had
        meant to embrace more than just pending cases, it might have used the past simple,
        “was timely commenced.” And it might have placed § 1083(c)(3) outside of a
        section entitled “Application to Pending Cases.” Instead, Congress chose language
        suggesting that the predicate action in § 1083(c)(3) is one that has been commenced
        but is still ongoing. It is thus unclear whether Roeder—whose prior case was not
        pending and whose new case would have been time barred—could sue under
        § 1605A(c).

Id. at 61–62 (abbreviation expanded). The Circuit concluded that “[b]ecause of § 1083(c)(3)’s

ambiguity regarding whether Roeder, whose case was not pending at the time of enactment, may

file under the new terrorism cause of action, we are required again to conclude that Congress has

not abrogated the Algiers Accords.” Id. at 62.

                                           II. ANALYSIS

        The Hegnas filed this suit within sixty days of the enactment of the 2008 amendments.

They now seek a judgment that Iran’s Islamic Revolutionary Guard Corps (which was not a

party to their first suit) is jointly liable for the damages previously assessed against the state of

Iran and its Ministry of Information and Security, and also that the Iranian state is jointly liable

for the punitive damages previously levied against its Ministry. The plaintiffs argue that

§ 1083(c)(3) authorizes them to bring this suit as one related to their earlier case, although that

case was not pending when this suit was brought. Because Iran has not appeared, the clerk has

entered the default. The plaintiffs now move for a default judgment.




                                                  14
       A. Article III and Res Judicata

       Like the Roeder court, this court may not need to determine whether § 1083(c)(3) is best

read to authorize the judgment that the plaintiffs request. The Algiers Accords are not at issue

here, but Article III of the Constitution is. That article “gives the Federal Judiciary the power,

not merely to rule on cases, but to decide them, subject to review only by superior courts in the

Article III hierarchy—with an understanding, in short, that ‘a judgment conclusively resolves the

case’ because ‘a “judicial Power” is one to render dispositive judgments.’” Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211, 218–19 (1995) (quoting Frank Easterbrook, Presidential Review, CASE

W. L. REV. 905, 926 (1990) (quoting U.S. Const., art. III)) (second emphasis added). Congress

therefore exceeds its constitutional power when it attempts to “depriv[e] judicial judgments of

the conclusive effect that they had when they were announced.” Id. at 228; see also id. at 239

(noting that “the conclusiveness of judicial judgments” is among the “major features” of the

“doctrine of separation of powers”). “Having achieved finality, . . . a judicial decision becomes

the last word of the judicial department with regard to a particular case or controversy,” id. at

227; thereafter, “a judgment at law is generally immune to subsequent legislative changes,”

QUALCOMM Inc. v. FCC, 181 F.3d 1370, 1380 n.7 (D.C. Cir. 1999); accord Miljkovic v.

Ashcroft, 366 F.3d 580, 582 (7th Cir. 2004) (Posner, J.) (stating that “rights conferred by final

judgments are good against a subsequent change in the law”) (citing Plaut, 514 U.S. at 225–26).

       The doctrine of res judicata protects the finality of judicial judgments. “The general

principle . . . is that a final, valid judgment on the merits precludes any further litigation between

the same parties on the same cause of action.” Stanton v. D.C. Court of Appeals, 127 F.3d 72, 78

(D.C. Cir. 1997); accord Montana v. United States, 440 U.S. 147, 153 (1979); Parklane Hosiery


                                                  15
Co. v. Shore, 439 U.S. 322, 326 n.5 (1979). “The judgment puts an end to the cause of action,

which cannot again be brought into litigation between the parties upon any ground whatever,

absent fraud or some other factor invalidating the judgment.” Comm’r v. Sunnen, 333 U.S. 591,

597 (1948). Res judicata embodies the “fundamental precept of common-law adjudication . . .

that a ‘right . . . distinctly put in issue and directly determined by a court of competent

jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies .

. . .’” Montana, 440 U.S. at 153 (quoting S. Pac. R. Co. v. United States, 168 U.S. 1, 48–49

(1897)) (third and fourth alterations in original). The doctrine “plays a central role in advancing

the ‘purpose for which civil courts have been established, the conclusive resolution of disputes

within their jurisdictions.’” Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004) (quoting

Montana, 440 U.S. at 153); accord Sunnen, 333 U.S. at 597 (explaining that res judicata “rests

upon . . . public policy favoring the establishment of certainty in legal relations”).

       The Supreme Court has therefore strongly suggested, though not squarely held, that the

principle of res judicata is “compelled by Article III to safeguard the structural independence of

the courts.” Plaut, 514 U.S. at 231 (quoting Brief for United States and rejecting the contrary

argument); see also DAVID L. SHAPIRO, CIVIL PROCEDURE: PRECLUSION IN CIVIL ACTIONS 14

(2001) (discussing the relationship between res judicata and “the need to recognize the finality of

judgments,” which is “fundamental to the status of the federal courts under Article III of the

Constitution” (footnote omitted)). Although res judicata is a waivable personal defense—and

can be waived by Congress on behalf of the United States without violating the separation of

powers, Plaut, 514 U.S. at 230–31 (citing United States v. Sioux Nation, 448 U.S. 371, 397, 407

(1980))—it “may follow from [the Court’s] holding that the judicial power unalterably includes


                                                  16
the power to render final judgments . . . that, as many Federal Courts of Appeals have held,

waivers of res judicata need not always be accepted—that trial courts may in appropriate cases

raise the res judicata bar on their own motion.” Id. at 231; cf. Stanton, 127 F.3d at 77 (“As res

judicata belongs to courts as well as to litigants, even a party’s forfeiture of the right to assert it

. . . does not destroy a court’s ability to consider the issue sua sponte.”). That is, Article III may

require that the waiver of res judicata be “subject to the control of the courts themselves.” Plaut,

514 U.S. at 231–32 (discussing Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833,

851 (1986) (concluding that “when . . . Article III limitations are at issue, notions of consent and

waiver cannot be dispositive”)); accord Stanton, 127 F.3d at 77 (stating that, when applying the

law of res judicata, “the interests that courts protect are . . . often their own”); see also In re

Terrorism Litig., 659 F. Supp. 2d at 83 (noting that “in Plaut, the Supreme Court suggested that

a waiver of res judicata that is not subject to ‘the control of the courts themselves’ might raise

separation-of-powers issues”). If that is so—if Article III implicitly requires that federal courts

be able to invoke the preclusive effect of their own judgments—then a congressional attempt to

prevent the courts from invoking res judicata where it would normally apply would violate the

separation of powers.

        For the reasons discussed above, a statute that impaired the effect of res judicata in the

federal courts would likely be unconstitutional. And that likelihood is enough to “warrant[ ]

application of the canon of constitutional doubt, which states that ambiguous statutes should not

be read to raise a serious constitutional question when a reasonable and clearly constitutional

alternative is available,” to an ambiguous statute that could be read to alter the normal

functioning of res judicata. QUALCOMM, 181 F.3d at 1379. To know whether that reasoning


                                                   17
resolves this case—whether the court should avoid a serious constitutional question by

interpreting § 1083(c)(3) to authorize only suits related to pending cases—the court must first

determine whether the Hegnas’ current suit would ordinarily be barred by res judicata.

        B. The Sources and Scope of Res Judicata

        Although the principle of res judicata—that “a final judgment on the merits bars further

claims by parties or their privies based on the same cause of action,” Montana, 440 U.S. at

153—is universally accepted, the law of claim preclusion3 differs from one jurisdiction to

another. This is chiefly because jurisdictions “start from different understandings of the scope of

a ‘cause of action.’” Stanton, 127 F.3d at 78; see also Migra, 465 U.S. at 86 (“The definition of

‘cause of action’ . . . is critical in the present context . . .” ); Duhaney v. Attorney Gen., 621 F.3d

340, 348 (3d Cir. 2010) (“The challenge in this case, as in many res judicata cases, is defining

the relevant ‘cause of action.’”). “Various tests for determining the scope of a cause of action

have been suggested and used: ‘. . . Among the most common are that the cause of action is the

same if: (a) the same principles of substantive and procedural law are applicable to both

questions, (b) the same right is alleged to be infringed by the same wrong in both actions, (c) the

judgment sought in the second action would infringe rights established in the first, (d) the same

evidence would support both actions, or (e) the operative facts are the same in both actions.’”



        3
          “The preclusive effect of a judgment is defined by claim preclusion and issue
preclusion, which are collectively referred to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880,
892 (2008). “These terms have replaced a more confusing lexicon. Claim preclusion describes
the rules formerly known as ‘merger’ and ‘bar,’ while issue preclusion encompasses the
doctrines once known as ‘collateral estoppel’ and ‘direct estoppel.’” Id. at 892 n.5 (citing Migra
v. Warren City Sch. Dist. Bd. of Ed., 465 U.S. 75, 77 n.1 (1984) (noting that “[t]he preclusive
effects of former adjudication are discussed in varying and, at times, seemingly conflicting
terminology, attributable to the evolution of preclusion concepts over the years”)).

                                                  18
Semler v. Psychiatric Inst. of Wash., D.C., Inc., 575 F.2d 922, 930 n.42 (D.C. Cir. 1978) (quoting

Developments in the Law: Res Judicata, 65 HARV. L. REV. 818, 824–25 (1952)); see also

SHAPIRO, PRECLUSION at 36 (noting the “variation among jurisdictions”); CHARLES ALAN

WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE § 4407 (“WRIGHT & MILLER”) (discussing

various definitions). To determine the preclusive effect of a judgment, then, one must know

what law of preclusion applies.

       “The preclusive effect of a federal-court judgment is determined by federal common

law.” Taylor, 553 U.S. at 891 (citing Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497,

507–08 (2001)). “For judgments in federal-question cases . . . federal courts participate in

developing ‘uniform federal rule[s]’ of res judicata, which [the Supreme] Court has ultimate

authority to determine and declare.” Id. (quoting Semtek, 531 U.S. at 508) (alteration in

original). “For judgments in diversity cases, federal law incorporates the rules of preclusion

applied by the State in which the rendering court sits.” Id. at 891 n.4 (citing Semtek, 531 U.S. at

508 (explaining that judgments in diversity suits “seem[ ] to us, a classic case for adopting, as

the federally prescribed rule of decision, the law that would be applied by state courts in the

State in which the federal diversity court sits”)).

       The Hegnas’ first suit was erroneously held to be a federal question case. Judge Kennedy

ruled that the plaintiffs had “a cause of action under 28 U.S.C. § 1605(a)(7) and 28 U.S.C.A.

§ 1605 note” against both Iran and its Ministry of Information and Security. Memorandum at

15, Hegna v. Islamic Republic of Iran, No. 00-cv-716 (D.D.C. Jan. 22, 2002). As discussed

above, the Circuit ruled in Cicippio-Puleo that this widely-held interpretation of the terrorism

exception was partially incorrect: plaintiffs bringing suit against a foreign state under the


                                                  19
jurisdiction permitted by § 1605(a)(7) were required “to state a cause of action under some other

source of law, including state law.” 353 F.3d at 1036. They did not have a federal cause of

action against a foreign state by virtue of either § 1605(a)(7) or the Flatow Amendment. The

judgment in Hegna I was therefore based upon a misapprehension of the governing law—but

that fact has no bearing on its preclusive effect.

       As the Supreme Court has explained, “the res judicata consequences of a final,

unappealed judgment on the merits [are not] altered by the fact that the judgment may have been

wrong or rested on a legal principle subsequently overruled in another case.” Federated Dep’t

Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); accord Hardison v. Alexander, 655 F.2d 1281,

1288 (D.C. Cir. 1981) (noting that res judicata applies “whether the initial judgment was

erroneous or not”). The “contrary view would result in creating elements of uncertainty and

confusion and in undermining the conclusive character of judgments, consequences which it was

the very purpose of the doctrine of res judicata to avert.” Moitie, 452 U.S. at 398–99 (quoting

Reed v. Allen, 286 U.S. 191, 201 (1932)). Perhaps the Hegnas should have sued Iran under a

state law cause of action, as many plaintiffs did after Cicippio-Puleo. But they brought their first

suit under a purported federal cause of action, and their case went to judgment on that basis. The

“‘uniform federal rule[s]’ of res judicata” therefore govern that judgment’s preclusive effect.

Taylor, 553 U.S. at 891 (quoting Semtek, 531 U.S. at 508) (alteration in original).

       Under federal law, “[a] subsequent lawsuit is barred by claim preclusion ‘if there has

been prior litigation (1) involving the same claims or cause of action, (2) between the same

parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court

of competent jurisdiction.’” Nat’l Res. Def. Council v. EPA, 513 F.3d 257, 260 (D.C. Cir. 2008)


                                                     20
(quoting Smalls v. United States, 471 F.2d 186, 192 (D.C. Cir. 2006)). “Whether two cases

implicate the same cause of action turns on whether they share the same nucleus of facts.”

Apotex, 393 F.3d at 217 (quoting Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002)) (internal

quotation marks omitted); accord Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)

(“The judgment bars any further claim based on the same ‘nucleus of facts,’” because “‘it is the

facts surrounding the transaction or occurrence which operate to constitute the cause of action,

not the legal theory upon which a litigant relies.’”) (quoting Expert Elec., Inc. v. Levine, 554

F.2d 1227, 1234 (2d Cir. 1977)).

         Taken at face value, this test would clearly bar the plaintiffs’ claims. The claims asserted

here are based on the same “nucleus of facts” as the Hegnas’ first suit—namely, the murder of

Charles Hegna and the suffering of his family that resulted from it. The two cases involved the

same plaintiffs and one identical defendant: the state of Iran. The Islamic Revolutionary Guard

Corps (which has been added as a defendant) is, by the allegations in the complaint and the

precedent of this district, an agency of the Iranian state and therefore in privity with it. See, e.g.,

Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229, 255 (D.D.C. 2006) (noting that

the Islamic Revolutionary Guard Corps is “considered to be a division of [the] state of Iran”);

Salazar v. Islamic Republic of Iran, 370 F. Supp. 2d 105, 117 (D.D.C. 2005) (finding that the

Islamic Revolutionary Guard Corps is “like an ‘armed force’ under the ultimate command of the

leadership of the Iranian government”). The judgment in Hegna I was final, valid, and on the

merits; the court had jurisdiction to issue it. Absent some reason to conclude otherwise, the

claims that the Hegnas assert here would therefore be barred by the earlier judgment in their

favor.


                                                  21
       C. Exceptions to Res Judicata

       There are, however, certain exceptions to the general rule of res judicata. See generally

WRIGHT & MILLER at § 4415. For instance, “[r]es judicata does not bar parties from bringing

claims based on material facts that were not in existence when they brought the original suit.”

Apotex, 393 F.3d at 218 (citing Drake, 291 F.3d at 66); accord Stanton, 127 F.3d at 78 (“Federal

law is clear that post-judgment events give rise to new claims, so that claim preclusion is no

bar.”) (emphasis deleted); Page, 729 F.2d at 820 & n.12 (citing Lawlor v. Nat’l Screen Serv.

Corp., 349 U.S. 322, 327–28 (1955)). “And, in a small set of cases, a change in controlling legal

principles may allow a party to relitigate a claim that would otherwise be barred by res

judicata.” Apotex, 393 F.3d at 218 (citing Hardison, 655 F.2d at 1288–89 (noting that “on rare

occasions the courts have been willing to override the bar of res judicata” in cases involving

“paramount questions of constitutional law” (citing Moch v. E. Baton Rouge Parish Sch. Bd.,

548 F.2d 594 (5th Cir. 1977); Griffin v. State Bd. of Educ., 296 F. Supp. 1178 (E.D. Va.

1969)))).4


       4
          The broader exception suggested by State Farm Mutual Automobile Insurance
Company v. Duel, 324 U.S. 154 (1945), is not regarded as good law. In State Farm, the Supreme
Court referred to “the general rule that res judicata is no defense where between the time of the
first judgment and the second there has been an intervening decision or a change in the law
creating an altered situation.” 324 U.S. 154, 162 (1945). The First Circuit believes that the
Court later rejected this proposition, see Coors Brewing Co. v. Méndez-Torres, 562 F.3d 3, 10
n.3 (1st Cir. 2009) (discussing Moitie, 452 U.S. at 398); accord Forsman v. Chater, 1996 WL
396718, at *1 (9th Cir. July 12, 1996) (per curiam); Pfizer Inc. v. Ranbaxy Labs. Ltd., 525 F.
Supp. 2d 680, 689 (D. Del. 2007); but see Dalombo Fontes v. Gonzales, 498 F.3d 1, 3 (1st Cir.
2007) (per curiam order denying rehearing), while the Sixth Circuit believes that it was always
dictum and “not an accurate statement of the Supreme Court’s general rule in this area,”
Harrington v. Vandalia-Butler Bd. of Educ., 649 F.2d 434, 438 n.3 (6th Cir. 1981) (concluding
that Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 375 (1940), provides
the better rule); but cf. Franklin Cnty. Convention Facilities Auth. v. Am. Premier Underwriters,
Inc., 240 F.3d 534, 550 (6th Cir. 2001); see also Clifton v. Attorney Gen., 997 F.2d 660, 663 (9th

                                                22
       Some authorities have suggested that cases involving a post-judgment change in statutory

law may fall within that small set. If this is so, then reading § 1083(c)(3) (which was enacted

years after the Hegnas won their first judgment) to authorize this suit would not conflict with the

normal operation of res judicata. And if reading § 1083(c)(3) to authorize this suit would not

affect the operation of res judicata, then the court need not avoid that reading by invoking the

canon of constitutional doubt. The court must therefore investigate the authorities that assert a

change-in-statutory-law exception to the general rule of res judicata.

       The principal authority for this proposition is the case of Alvear-Velez v. Mukasey, 540

F.3d 672 (7th Cir. 2008), which involved the preclusive effect of administrative proceedings.

Mr. Alvear-Velez was a lawful permanent resident who pled guilty to a criminal charge of sexual

assault in 1993. The immigration authorities brought a deportation proceeding against him under

8 U.S.C. § 1251(a)(2)(A)(i), which authorizes the deportation of aliens who have been convicted

of a crime involving moral turpitude within five years of entry and imprisoned or sentenced to

imprisonment for one year or more. In 1994, an immigration judge determined that Mr. Alvear-

Velez had not been sentenced to imprisonment or confined for more than a year. Alvear-Velez,

540 F.3d at 675. The immigration judge entered an administrative order dismissing the

deportation proceedings; that order became final. Id. Two years later, “Congress amended the

statutory definition of aggravated felony, another ground for removal, to include sexual abuse of

a minor, and it specifically applied that new definition retroactively ‘regardless’ of how long ago

the ‘conviction was entered.’” Id. at 679 (quoting Illegal Immigration Reform and Immigrant



Cir. 1993) (discussing both Moitie and State Farm and rejecting argument that State Farm
should govern); WRIGHT & MILLER at § 4415 n.38 (concluding that “there is no reason to take
. . . seriously” the “broader rule . . . suggested by the casual dictum in State Farm”).

                                                23
Reponsibility Act of 1996, Pub. L. No. 104-208, §§ 321(a)(1), (b), 110 Stat. 3009, 3009-628

(codified at 8 U.S.C. § 1101(a)(43)(A))). Mr. Alvear-Velez’s crime was an aggravated felony

under this new definition, though it had not qualified as such under the definition in place during

his 1994 deportation proceeding. Id. (citing 8 U.S.C. § 1101(a)(43) (1995)). The question in

Alvear-Velez was whether the administrative order ending that first proceeding precluded the

immigration authorities from bringing a second deportation proceeding on the grounds that the

same crime was now (though it had not been then) a deportable offense.

        Although administrative adjudications are generally accorded preclusive effect, that

background rule can be altered by Congress without raising any separation-of-powers concerns.

Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (explaining that “the

question is . . . whether administrative estoppel . . . is intended by the legislature”); see also

Plaut, 514 U.S. at 232 (explaining that “legislation that alter[s] rights fixed by the final

judgments of . . . administrative agencies” does not raise separation-of-powers concerns (citing

Paramino Lumber Co. v. Marshall, 309 U.S. 370 (1940)). It is for that reason that both the

Seventh Circuit and this one “have applied res judicata much more flexibly in the administrative

context” than in the context of the final judgments of Article III courts. Alvear-Velez, 540 F.3d

at 677; accord Martin v. Malhoyt, 830 F.2d 237, 265 (D.C. Cir. 1987) (Bader Ginsburg, J.)

(citing with approval Purter v. Heckler, 771 F.2d 682, 691 (2d Cir. 1985); Cartier v. Sec’y of

State, 506 F.2d 191, 196 (D.C. Cir. 1974) (observing that “the doctrine of administrative res

judicata . . . has not evolved into a rigid system that is to be blindly applied in every context”)).

The Alvear-Velez court noted that “in determining whether the doctrine of res judicata should be

applied with less rigidity than usual,” courts have found that “statutory changes that occur after


                                                  24
the previous litigation has concluded may justify a new action.” 540 F.3d at 678. That statement

appeared limited to the preclusive effect of administrative determinations—the class of

determinations for which res judicata can be “applied with less rigidity than usual.” Id. But a

later formulation suggested that a change in statutory law can justify a “less rigid application of

res judicata” outside of the administrative context—that a change in statutory law provides a

reason to deviate from the general rule of res judicata independent of the institutional context in

which the question arises. See id. at 680 (“[T]wo circumstances require a less rigid application

of res judicata in this case. The relevant change here is statutory in nature . . . and that change is

being applied in the administrative context.”).

       The authorities on which Alvear-Velez relies for this proposition do not support the

existence of a general change-in-statutory-law exception to the rule of res judicata. Alvear-Velez

places the heaviest emphasis on United States v. Fisher, 864 F.2d 434 (7th Cir. 1988) (Posner,

J.), which involved the EPA’s enforcement of several environmental statutes. In 1982, the

agency obtained a consent decree under the Resource Conservation and Recovery Act, 42 U.S.C.

§§ 6901 et seq., under which it would monitor the groundwater on David Fisher’s farm. Fisher,

864 F.2d at 436. In 1987, the EPA again brought suit against Mr. Fisher, based upon “various

events since the entry of the consent decree in 1982.” Id. at 437. This second suit was brought

under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.

§§ 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986,

Pub. L. No. 99-499, 100 Stat. 1613. The amended Act “authorize[d] the EPA to enter property

when ‘there is a reasonable basis to believe that there may be a release or threat of release of a

hazardous substance or pollutant or contaminant.’” Fisher, 864 F.2d at 437 (quoting 42 U.S.C.


                                                  25
§ 9604(e)(1)). When the EPA came to believe that hazardous substances were being released on

Mr. Fisher’s farm, it “decided that it needed greater access to the farm than the consent decree

authorized, in order to investigate fully the nature and extent of the soil and groundwater

contamination and decide on appropriate remedial measures.” Id. Mr. Fisher refused to grant

that access, and the EPA brought the second suit. “The basic difference between the two suits

. . . [was] that the first sought to enjoin Fisher and his corporation from handling, storing, or

disposing of toxic wastes in a hazardous manner, whereas the second [sought] to enjoin Fisher

from interfering with the EPA’s access to the farm to perform additional tests and, depending on

what the tests show[ed], to order additional steps taken to determine the hazards that the farm

pose[d] to the public health.” Id.

       Mr. Fisher argued that the consent decree in the first suit precluded the EPA from

bringing a second suit about hazardous waste treatment on his farm. As the Seventh Circuit

recognized, “[a] consent decree is res judicata and thus bars either party from reopening the

dispute by filing a fresh lawsuit.” Id. at 439. “The passage of a new statute, although it may

require the modification of the decree, does not alter the general principle that a consent decree

bars a fresh lawsuit arising from the same dispute that underlay the litigation in which the decree

was entered.” Id. (citations omitted) (emphasis added).

       Nonetheless, the Seventh Circuit ruled that the EPA’s second suit could proceed. First,

the court noted that there was “no indication that all the hazardous leakage with which the EPA

[was] concerned occurred before the entry of the decree, and leakage occurring afterward would

create a fresh cause of action.” Id.; accord Apotex, 393 F.3d at 218 (“Res judicata does not bar

parties from bringing claims based on material facts that were not in existence when they


                                                  26
brought the original suit.”). Moreover, the Fisher court observed, “[t]he Superfund amendments

under which the present suit was filed were enacted four years after the consent decree was

signed,” and “[t]he EPA has no authority to refuse to enforce the statute just because its staff

made commitments before Congress spoke.” 864 F.2d at 439.

       Fisher does not stand for the proposition that a change in statutory law generally

authorizes a second suit based on the same transaction or occurrence at issue in an earlier case

that has gone to final judgment. Rather, Fisher rests in part on the uncontroversial proposition

that new facts give rise to new claims, and in part on a harder-to-define principle having to do

with the allocation of power between Congress and the administrative agencies it has created.

Fisher suggests that the actions of those agencies, such as their approval of a consent decree,

cannot negate Congress’s authority to establish new standards and procedures by which agencies

are to ensure the public health and safety. As the D.C. Circuit explained in rejecting the

argument that, “by assessing a noncompliance penalty against a source subject to a consent

decree” on the basis of statutory authority that did not exist when the decree was entered the

“EPA interferes with the res judicata effect of the decree,” “Congress always has the power to

impose a new penalty on continuing activity.” Duquesne Light Co. v. EPA, 698 F.2d 456, 469

(D.C. Cir. 1983). In Fisher, Congress did no more than that, imposing a new inspection regime

on continuing activity. That Congress can do as much does not mean that it can also alter the

legal effect of concluded activity that has already been the subject of a final judicial judgment.

       The other cases relied on by Alvear-Velez similarly fail to support a broad rule that

changes in statutory law justify an exception to the preclusive effects of final judgments. Alvear-

Velez cites Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589 (7th Cir. 1986), and Wedow v.


                                                 27
City of Kansas City, Mo., 442 F.3d 661 (8th Cir. 2006), for the proposition that “the rule against

claim splitting, which is one component of res judicata, is inapplicable when a statutory change

creates a course of action unavailable in the previous action.” Alvear-Velez, 540 F.3d at 678.

Car Carriers, which held that a claim was barred by res judicata because it arose from the same

nucleus of facts at issue in an earlier suit, 789 F.2d at 595–96, includes the familiar maxim that

“prior litigation acts as a bar not only to those issues which were raised and decided in the earlier

litigation but also to those issues which could have been raised in that litigation,” id. at 593.

Wedow similarly notes that “[r]es judicata bars claims that were or could have been litigated in

the earlier proceeding, but it does not apply to claims that did not exist when the first suit was

filed.” 442 F.3d at 669 (citation omitted). The Wedow court held that the claims before it could

not have been litigated in an earlier suit, because they arose from facts that post-dated that case.

Id. Because those facts did not exist at the time of the earlier litigation, the claims that derived

from them did not exist, either. Thus, the well-established rule that “[r]es judicata does not bar

parties from bringing claims based on material facts that were not in existence when they

brought the original suit,” Apotex, 393 F.3d at 218, is one common meaning of the rule that “a

final judgment on the merits of an action precludes the parties or their privies from relitigating

issues that were or could have been raised in that action,” Allen v. McCurry, 449 U.S. 90, 94

(1980), but not from litigating issues that could not have been raised.

       The other common meaning of that rule has to do with jurisdictional limits that

sometimes prevent a claim from being brought before the tribunal that issues the potentially

preclusive judgment. See generally WRIGHT & MILLER at § 4412. Indeed, to say that “a claim is

not barred by res judicata if the forum in which the first action was brought lacked subject matter


                                                  28
jurisdiction to adjudicate that claim” is simply “[a]nother way of stating the . . . principle” that

“[i]f a claim could not have been asserted in prior litigation, no interests are served by precluding

that claim in later litigation.” Clark v. Bear-Stearns & Co., 966 F.2d 1318, 1321 (9th Cir. 1992).

All of the cases that Alvear-Velez cites to support its assertion that “courts consistently have

refused to apply res judicata to preclude a second suit that is based on a claim that could not have

been asserted in the first suit,” 540 F.3d at 678, refer to some issue with the jurisdiction of the

earlier tribunal. See Mass. Sch. of Law v. Am. Bar Ass’n, 142 F.3d 26, 38–39 (1st Cir. 1998)

(plaintiff could have asserted claims in earlier action because that tribunal had jurisdiction over

them); Computer Assocs. Int’l, Inc. v. Altai, Inc., 126 F.3d 365, 370 (2d Cir. 1997) (federal

judgment does not bar foreign suit where the federal court “could not have exercised

jurisdiction” over “a principal party to the [foreign] suit”); Clark, 966 F.2d at 1321 (arbitration

decision does not preclude federal lawsuit where arbitration panel had no jurisdiction over

federal claims); Kale v. Combined Ins. Co., 924 F.2d 1161, 1167 (1st Cir. 1991) (discussing the

“jurisdictional competence exception” to res judicata); Browning v. Navarro, 887 F.2d 553, 558

(5th Cir. 1989) (“It is black-letter law that a claim is not barred by res judicata if it could not

have been brought. If the court rendering judgment lacked subject-matter jurisdiction over a

claim or if the procedural rules of the court made it impossible to raise a claim, then it is not

precluded.”).

        Having examined Alvear-Velez and the cases cited therein, the court concludes that there

is not—as that case may be read to suggest—any generally-applicable exception to res judicata

for post-judgment changes in statutory law. Rather, Alvear-Velez is best read to hold only that

the preclusive effect of an administrative adjudication (to which res judicata applies less strictly


                                                  29
than to a judicial judgment) may be diminished by changes in statutory law.5 And the accepted

maxim that res judicata does not bar claims that could not have been raised in the earlier action is

best understood to refer to the usual rule that a judgment will not bar a later claim that the

rendering body had no jurisdiction to hear, nor one that arose from post-judgment events.

Indeed, to hold otherwise would fly in the face of the Supreme Court’s reasoning in Plaut. The

Plaut Court concluded that because “virtually all of the reasons why a final judgment on the

merits is rendered on a federal claim are subject to congressional control,” 514 U.S. at 228

(emphasis deleted), a principle that allowed Congress to alter the elements of a cause of action

and then authorize a second trial under the “new liberal (or alternatively, stringent) rule of

pleading” despite a “final judgment[ ] rendered on the basis of [the former] stringent (or,

alternatively, liberal) rule of pleading” would “provide[ ] massive scope for undoing final

judgments and would substantially subvert the doctrine of separation of powers,” id. at 229. For

that reason, and others discussed above, the court is content to adopt the following summary of

the law in this area:

        Passage of a new statute will not per se create grounds for a new claim. However,
        on rare occasions, when a new statute provides an independent basis for relief which
        did not exist at the time of the prior action, a second action based on the new statute
        may be justified. Alvear-Velez, 540 F.3d at 678. These occasions may arise when
        threatened or continuing acts which were the subject of the prior action involve
        substantial public policy concerns, such as environmental pollution, Fisher, 864 F.2d
        at 439, or civil rights violations. Also, when a new statute conveys jurisdiction upon


        5
          The Eleventh Circuit’s opinion on the question addressed in Alvear-Velez should be
read in the same manner. Maldonado v. Attorney Gen., 664 F.3d 1369, 1380 (11th Cir. 2011)
(concluding that “we will not apply the doctrine of res judicata to bar new removal proceedings
in this administrative setting when an intervening change in the law has provided a wholly new
legal basis for removal that could not have been raised in the prior proceedings, particularly
when Congress clearly intended that new basis to apply retroactively”) (emphasis added); see
also Dalombo Fontes, 498 F.3d at 2–3.

                                                  30
       a court to entertain claims that were previously beyond its jurisdiction, a previous
       action dismissed for lack of jurisdiction will not preclude an action under the new
       statute. Outside of these limited circumstances, the general rule that a change in law
       will not abrogate the preclusive effect of a prior judgment still controls. . . . [W]hile
       a statute may define the preclusive effect to be given to pending or future cases, it
       may not do [so] for cases that have achieved repose through a final judgment, and
       any party asserting such a statutory construction as the basis for a subsequent action
       will fail.

18 MOORE’S FEDERAL PRACTICE § 131.22[3] (footnotes deleted or incorporated into text)

(citations omitted and emphases added).

       D. The Scope of § 1083(c)(3)

       Having resolved a difficult question of federal law, the court returns to the matter at

hand: whether § 1083(c)(3) authorizes this suit. As discussed above, the statute is ambiguous. It

could reasonably be read to authorize only suits related to pending cases or, more broadly, to

authorize any suit related to an earlier action brought under § 1605(a)(7) or the Flatow

Amendment, regardless of whether that first suit was pending when the second suit was brought.

See Roeder, 646 F.3d at 61–62.

       As should be clear from the discussion above, the broader reading would raise a serious

question about the constitutionality of § 1083(c)(3). Res judicata would ordinarily bar a second

suit for damages based on the same nucleus of facts at the core of the final judgment in an earlier

suit, notwithstanding a post-judgment change in statutory law that made punitive damages newly

available. For Congress to impair the normal functioning of res judicata would raise a weighty

constitutional question. To avoid that significant constitutional question, the court must

therefore interpret § 1083(c)(3) not to authorize this present suit.

       Before resting in that conclusion, however, the court will pause to consider two other

opinions on the constitutional implications of § 1083(c)(3). One district judge has found the

                                                  31
provision unconstitutional, on the grounds that it “is a deliberate effort to change the outcome in

cases that have already been fully decided before an Article III tribunal.” Kumar v. Republic of

Sudan, 2011 WL 4369122, at *11 (E.D. Va. Sept. 19, 2011).6 Because the D.C. Circuit has held

that § 1083(c)(3) can reasonably be read to apply only to cases that have not yet “been fully

decided before an Article III tribunal,” this court need not join in that conclusion: indeed, the

Kumar court’s suggestion that a broader reading would contradict the Constitution is a powerful

reason to avoid that reading. Another district judge was “troubled by the related-case provisions

of § 1083(c)(3), to the extent that those measures enable individuals who litigated Foreign

Sovereign Immunities Act actions against Iran previously to now file new cases against Iran

under § 1605A.” In re Terrorism Litig., 659 F. Supp. 2d at 68 (abbreviation expanded); see also

id. at 70 (suggesting “that certain parts of § 1083(c) might suffer from constitutional infirmities

in violation of the principles expounded by the Supreme Court in its jurisprudence concerning

the independent authority of Article III courts to decide civil cases”). Although that judge

recognized that “courts are obligated to construe legislative enactments in a manner that avoids

constitutional questions whenever there is a saving construction that is ‘not plainly contrary to

the intent of Congress,’” he concluded that “the constitutional question is presented squarely and

unavoidably in this case.” Id. at 68 (quoting Miller v. French, 530 U.S. 327, 341 (2000)). The

Circuit’s opinion in Roeder, 646 F.3d at 61–62—issued after the In re Terrorism Litigation




       6
          The Kumar court also noted that, although “[s]ome courts have suggested that there is
an exception to [the general rule that changes in the law do not overcome the effects of res
judicata] when the change in law involves the creation of a new statutory cause of action,” it
“views the weight of these precedents as doubtful . . . in light of the now-prevailing transactional
approach to res judicata.” 2011 WL 4369122, at *11.

                                                 32
opinion—makes it clear that the constitutional question can be avoided in this case. And so the

court will avoid it.

                                      III. CONCLUSION

        For the reasons discussed above, the court finds that the Hegnas cannot bring this suit

under § 1083(c)(3). They do not assert any other basis that would support their suit. The court

will therefore deny their motion for default judgment and dismiss their case.

                                                             Rudolph Contreras
                                                             United States District Judge

Date: December 10, 2012




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