                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA


MARK MCDONALD, et al.,            :
                                  :
          Plaintiffs,             :
                                  :
     v.                           : Civil Action No. 06-0729 (JR)
                                  :
THE SOCIALIST PEOPLE’S LIBYAN     :
ARAB JAMAHIRIYA, et al.,          :
                                  :
          Defendants.             :

                             MEMORANDUM

          When plaintiffs filed their amended complaint, this

suit involved claims by United States and foreign nationals

against Libya, its security forces, and its leaders for their

material support of the campaign of bombings carried out by the

Irish Republican Army between 1972 and 1996.   See, e.g., Am.

Compl. [#34] ¶¶ 203-294.   Their pleading sought to sidestep what

would otherwise be a dispositive foreign sovereign immunity

defense by invoking the exception for state sponsors of

terrorism, 28 U.S.C. § 1605A, and the exception for commercial

activity with a direct effect in the United States, id.

§ 1605(a)(2).   Subsequently, the political branches undertook to

normalize diplomatic relations with Libya and, through

legislative and executive action, settled all pending suits

against Libya, its agencies, instrumentalities, officials,

employees, and agents arising from terrorist acts occurring prior

to June 30, 2006.   See Libyan Claims Resolution Act (“LCRA”),

Pub. L. No. 110-301, 122 Stat. 2999 (2008); Claims Settlement
Agreement [#62, Attach. 1].     Seeking to participate in the

settlement fund established by the Claims Settlement Agreement,

the U.S.-national plaintiffs in this suit sought dismissal of

their claims with prejudice, [#46], which was granted, [#47].

They appear to have encountered difficulty accessing the fund,

however, because of the remaining claims by foreign nationals

that were still pending in this case.     See, [#48 at 3].   They

accordingly moved for declaratory relief “defin[ing] the scope of

those with standing to participate in the humanitarian

[settlement] fund,” and “advis[ing] the parties of which claims

remain in light of the LCRA, specifically whether the foreign

claims survive.”   Id. at 21.

          For their part, the Libyan defendants have moved to

dismiss, [#36], a motion that is now supported by the United

States, [#62].   Among the many issues identified by the United

States in its statement of interest is the standing of the

remaining foreign-national plaintiffs to seek declaratory relief

on behalf of the now-dismissed U.S.-national plaintiffs against

the non-party United States in its capacity as administrator of

the settlement fund.   Although the United States’ suggestion

(that the foreign-national plaintiffs do not have standing)

appears manifestly correct, it need not be reached.     Instead, the

case will be dismissed in its entirety.




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            We may begin with a matter beyond dispute: plaintiffs

can no longer rely on the exception to foreign sovereign immunity

for state sponsors of terrorism, see 28 U.S.C. § 1605A.      The LCRA

provides:

     Notwithstanding any other provision of law, upon
     submission of a certification described in paragraph
     (2), Libya, an agency or instrumentality of Libya, and
     the property of Libya or an agency or instrumentality
     of Libya, shall not be subject to the exceptions to
     immunity from jurisdiction, liens, attachment, and
     execution contained in section 1605A, 1605(a)(7), or
     1610 . . . of title 28, United States Code.

LCRA, Pub. L. No. 110-303, § 5(a)(1)(A).      The “certification”

referred to is a certification by the Secretary of State that she

has received funds sufficient to ensure fair compensation of

claims by U.S. nationals.    Id. § 5(a)(2).    The Act is limited to

“any conduct or event occurring before June 30, 2006.”      Id.

§ 5(b).   The Secretary has made the necessary certification, see

[#62, Attach. 2], and the events alleged in the complaint took

place no later than 1996, see Am. Compl. [#34] ¶¶ 254-294.        Thus,

no plaintiff may rely on the state sponsor of terrorism exception

to foreign sovereign immunity in order to sue Libya in an

American court, and the plaintiffs themselves appear to concede

this.   See [#48] at 8-9.

            Plaintiffs argue instead that they may maintain this

action under the so-called commercial activity exception to

foreign sovereign immunity, see 28 U.S.C. § 1605(a)(2).      They

recognize that an executive order by the President purported to

                                - 3 -
settle and dispose of claims by U.S. and foreign nationals, [#48]

at 9, but they argue that the President had no authority to

dispose of these claims without direct authority from Congress,

and they assert their belief that Congress has not provided such

authority, regardless of the LCRA.       Id. at 14.

          This argument fails.    Libya’s alleged conduct is not

commercial activity as it is understood by 28 U.S.C.

§ 1605(a)(2).   According to Supreme Court and circuit precedent,

the “key inquiry in determining whether particular conduct

constitutes commercial activity . . . [is] whether it is ‘the

sort of action by which private parties can engage in commerce.’”

Mwani v. Bin Laden, 417 F.3d 1, 17 (D.C. Cir. 2005) (citing Saudi

Arabia v. Nelson, 507 U.S. 349, 362 (1993)).       In Mwani, the D.C.

Circuit rejected the claim that Afghanistan’s provision of land

for terrorist training camps could be considered commercial.      Id.

Here, the allegations are that Libya received an IRA “envoy in

Tripoli, Libya, who obtained quasi-ambassadorial status,” Am.

Compl. [#34] ¶ 212, that Libya provided both arms and financial

support to the IRA, e.g., id. ¶¶ 210-211, and that Libya trained

IRA terrorists, id. ¶ 236.    There is no way to characterize such

activities as “commercial.”   Libya supported the IRA with both

arms and funds –- sponsoring terrorists, not trading with them.

          Moreover, even if the allegations of the amended

complaint fell within the commercial activity exception, it would


                                 - 4 -
require a very cramped reading of the LCRA to exclude this case

from those that Congress plainly intended to foreclose as part of

the effort to normalize relations with Libya.    The LCRA provides

that “any other private right of action relating to acts by a

state sponsor of terrorism arising under Federal, State, or

foreign law shall not apply with respect to claims against Libya,

or any of its agencies, instrumentalities, officials, employees,

or agents in any action in a Federal or State court.”    LCRA, Pub.

L. No. 110-303, § 5(a)(1)(B).    Plaintiffs’ invocation of the

commercial activity exception does not change the fact that the

complaint in this case asserts “a private right of action

relating to acts by a state sponsor of terrorism.”    Id.

§ 5(a)(1)(B) (emphasis added).    Plaintiff’s claim, by any other

name, is about Libya’s sponsorship of IRA terrorists, see Am.

Compl. [#34] ¶ 203 (“Beginning in 1972, Defendant Libya

established contacts with the PIRA which, in the subsequent

twenty-five (25) years, grew into a material support apparatus

provided by Libya to the PIRA.”); id. ¶ 204 (“Between 1972 and

1997, Libya provided material support to the PIRA in the form of

finances, a base in Tripoli, military and explosives training,

arms, explosives, including but not limited to Semtex, explosive

components, public support, and encouragement.”).    The text of

the LCRA makes clear that Congress intended to end precisely such




                                 - 5 -
cases so as to normalize relations with Libya, and the law will

be given that effect.




                               JAMES ROBERTSON
                         United States District Judge




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