28 U.S.C. § 1605B — Responsibility of foreign states for inter-

Page 432 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1605B Executive Documents EX. ORD. NO. 13477. SETTLEMENT OF CLAIMS AGAINST LIBYA Ex. Ord. No. 13477, Oct. 31, 2008, 73 F.R. 65965, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, and pursuant to the August 14, 2008, claims settlement agreement between the United States of America and Libya (Claims Settlement Agreement), and in recognition of the October 31, 2008, certification of the Secretary of State, pursuant to section 5(a)(2) of the Libyan Claims Resolution Act (Public Law 110–301), and in order to continue the process of normalizing re- lations between the United States and Libya, it is here- by ordered as follows: SECTION 1. All claims within the terms of Article I of the Claims Settlement Agreement (Article I) are set- tled. (a) Claims of United States nationals within the terms of Article I are espoused by the United States and are settled according to the terms of the Claims Settlement Agreement. (i) No United States national may assert or maintain any claim within the terms of Article I in any forum, domestic or foreign, except under the procedures pro- vided for by the Secretary of State. (ii) Any pending suit in any court, domestic or for- eign, by United States nationals (including any suit with a judgment that is still subject to appeal or other forms of direct judicial review) coming within the terms of Article I shall be terminated. (iii) The Secretary of State shall provide for proce- dures governing applications by United States nation- als with claims within the terms of Article I for com- pensation for those claims. (iv) The Attorney General shall enforce this sub- section through all appropriate means, which may in- clude seeking the dismissal, with prejudice, of any claim of a United States national within the terms of Article I pending or filed in any forum, domestic or for- eign. (b) Claims of foreign nationals within the terms of Article I are settled according to the terms of the Claims Settlement Agreement. (i) No foreign national may assert or maintain any claim coming within the terms of Article I in any court in the United States. (ii) Any pending suit in any court in the United States by foreign nationals (including any suit with a judgment that is still subject to appeal or other forms of direct judicial review) coming within the terms of Article I shall be terminated. (iii) Neither the dismissal of the lawsuit, nor any- thing in this order, shall affect the ability of any for- eign national to pursue other available remedies for claims coming within the terms of Article I in foreign courts or through the efforts of foreign governments. (iv) The Attorney General shall enforce this sub- section through all appropriate means, which may in- clude seeking the dismissal, with prejudice, of any claim of a foreign national within the terms of Article I pending or filed in any court in the United States. SEC. 2. For purposes of this order: (a) The term ‘‘United States national’’ has the same meaning as ‘‘national of the United States’’ in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)), but also includes any entity orga- nized under the laws of the United States or any juris- diction within the United States (including foreign branches). (b) The term ‘‘foreign national’’ means any person other than a United States national. (c) The term ‘‘person’’ means any individual or enti- ty, including both natural and juridical persons. (d) The term ‘‘entity’’ means a partnership, associa- tion, trust, joint venture, corporation, group, subgroup, or other organization. SEC. 3. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, instru- mentalities, or entities, its officers or employees, or any other person. GEORGE W. BUSH. WAIVER OF SECTION 1083 OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008 Determination of President of the United States, No. 2008–9, Jan. 28, 2008, 73 F.R. 6571, provided: Memorandum for the Secretary of State By the authority vested in me as President by the Constitution and the laws of the United States, includ- ing section 301 of title 3, United States Code, and sec- tion 1083(d) of the National Defense Authorization Act for Fiscal Year 2008 (the ‘‘Act’’), I hereby determine that: • All provisions of section 1083 of the Act, if applied to Iraq or any agency or instrumentality thereof, may affect Iraq or its agencies or instrumentalities, by ex- posing Iraq or its agencies or instrumentalities to li- ability in United States courts and by entangling their assets in litigation. • The economic security and successful reconstruc- tion of Iraq continue to be top national security prior- ities of the United States. Section 1083 of the Act threatens those key priorities. If permitted to apply to Iraq, section 1083 would risk the entanglement of sub- stantial Iraqi assets in litigation in the United States— including those of the Development Fund for Iraq, the Central Bank of Iraq, and commercial entities in the United States in which Iraq has an interest. Section 1083 also would expose Iraq to new liability of at least several billion dollars by undoing judgments favorable to Iraq, by foreclosing available defenses on which Iraq is relying in pending litigation, and by creating a new Federal cause of action backed by the prospect of puni- tive damages to support claims that may previously have been foreclosed. If permitted to apply to Iraq, sec- tion 1083 would have a significant financial impact on Iraq and would result in the redirection of financial re- sources from the continued reconstruction of Iraq and the harming of Iraq’s stability, contrary to the inter- ests of the United States. • A waiver of all provisions of section 1083 with re- spect to Iraq and any agency or instrumentality of Iraq is therefore in the national security interest of the United States and will promote the reconstruction of, the consolidation of democracy in, and the relations of the United States with, Iraq. • Iraq continues to be a reliable ally of the United States and a partner in combating acts of international terrorism. The November 26, 2007, Declaration of Prin- ciples for a Long-Term Relationship of Cooperation and Friendship between the Republic of Iraq and the United States of America confirmed the commitment of the United States and Iraq to build an enduring relation- ship in the political, diplomatic, economic, and secu- rity arenas and to work together to combat all ter- rorist groups, including al-Qaida. Accordingly, I hereby waive all provisions of section 1083 of the Act with respect to Iraq and any agency or instrumentality thereof. You are authorized and directed to notify the Con- gress of this determination and waiver and the accom- panying memorandum of justification [not set out in the Code], incorporated by reference herein, and to ar- range for their publication in the Federal Register. GEORGE W. BUSH. § 1605B. Responsibility of foreign states for inter- national terrorism against the United States (a) DEFINITION.—In this section, the term ‘‘international terrorism’’— (1) has the meaning given the term in sec- tion 2331 of title 18, United States Code; and (2) does not include any act of war (as de- fined in that section). Page 433 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1607 (b) RESPONSIBILITY OF FOREIGN STATES.—A for- eign state shall not be immune from the juris- diction of the courts of the United States in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by— (1) an act of international terrorism in the United States; and (2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, re- gardless where the tortious act or acts of the foreign state occurred. (c) CLAIMS BY NATIONALS OF THE UNITED STATES.—Notwithstanding section 2337(2) of title 18, a national of the United States may bring a claim against a foreign state in accord- ance with section 2333 of that title if the foreign state would not be immune under subsection (b). (d) RULE OF CONSTRUCTION.—A foreign state shall not be subject to the jurisdiction of the courts of the United States under subsection (b) on the basis of an omission or a tortious act or acts that constitute mere negligence. (Added Pub. L. 114–222, § 3(a), Sept. 28, 2016, 130 Stat. 853.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable to any civil action pending on, or commenced on or after, Sept. 28, 2016, and arising out of an injury to a person, property, or business on or after Sept. 11, 2001, see section 7 of Pub. L. 114–222, set out as an Effective Date of 2016 Amendment note under section 2333 of Title 18, Crimes and Criminal Procedure. STAY OF ACTIONS PENDING STATE NEGOTIATIONS Pub. L. 114–222, § 5, Sept. 28, 2016, 130 Stat. 854, pro- vided that: ‘‘(a) EXCLUSIVE JURISDICTION.—The courts of the United States shall have exclusive jurisdiction in any action in which a foreign state is subject to the juris- diction of a court of the United States under section 1605B of title 28, United States Code, as added by sec- tion 3(a) of this Act. ‘‘(b) INTERVENTION.—The Attorney General may in- tervene in any action in which a foreign state is subject to the jurisdiction of a court of the United States under section 1605B of title 28, United States Code, as added by section 3(a) of this Act, for the purpose of seeking a stay of the civil action, in whole or in part. ‘‘(c) STAY.— ‘‘(1) IN GENERAL.—A court of the United States may stay a proceeding against a foreign state if the Sec- retary of State certifies that the United States is en- gaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other parties as to whom a stay of claims is sought. ‘‘(2) DURATION.— ‘‘(A) IN GENERAL.—A stay under this section may be granted for not more than 180 days. ‘‘(B) EXTENSION.— ‘‘(i) IN GENERAL.—The Attorney General may petition the court for an extension of the stay for additional 180-day periods. ‘‘(ii) RECERTIFICATION.—A court shall grant an extension under clause (i) if the Secretary of State recertifies that the United States remains engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other par- ties as to whom a stay of claims is sought.’’ § 1606. Extent of liability As to any claim for relief with respect to which a foreign state is not entitled to immu- nity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private indi- vidual under like circumstances; but a foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages; if, however, in any case wherein death was caused, the law of the place where the action or omission occurred provides, or has been con- strued to provide, for damages only punitive in nature, the foreign state shall be liable for ac- tual or compensatory damages measured by the pecuniary injuries resulting from such death which were incurred by the persons for whose benefit the action was brought. (Added Pub. L. 94–583, § 4(a), Oct. 21, 1976, 90 Stat. 2894; amended Pub. L. 105–277, div. A, § 101(h) [title I, § 117(b)], Oct. 21, 1998, 112 Stat. 2681–480, 2681–491; Pub. L. 106–386, div. C, § 2002(g)(2), for- merly § 2002(f)(2), Oct. 28, 2000, 114 Stat. 1543, re- numbered § 2002(g)(2), Pub. L. 107–297, title II, § 201(c)(3), Nov. 26, 2002, 116 Stat. 2337.) Editorial Notes AMENDMENTS 2000—Pub. L. 106–386, § 2002(g)(2), formerly § 2002(f)(2), as renumbered by Pub. L. 107–297, which directed repeal of section 101(h) [title I, § 117(b)] of div. A of Pub. L. 105–277, was executed by striking out ‘‘, except any ac- tion under section 1605(a)(7) or 1610(f)’’ after ‘‘punitive damages’’, to reflect the probable intent of Congress. See 1998 Amendment note below. 1998—Pub. L. 105–277 inserted ‘‘, except any action under section 1605(a)(7) or 1610(f)’’ after ‘‘punitive dam- ages’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1998 AMENDMENT Amendment by Pub. L. 105–277 applicable to any claim for which a foreign state is not immune under section 1605(a)(7) of this title arising before, on, or after Oct. 21, 1998, see section 101(h) [title I, § 117(c)] of Pub. L. 105–277, set out as a note under section 1610 of this title. EFFECTIVE DATE Section effective 90 days after Oct. 21, 1976, see sec- tion 8 of Pub. L. 94–583, set out as a note under section 1602 of this title. § 1607. Counterclaims In any action brought by a foreign state, or in which a foreign state intervenes, in a court of the United States or of a State, the foreign state shall not be accorded immunity with respect to any counterclaim— (a) for which a foreign state would not be en- titled to immunity under section 1605 or 1605A of this chapter had such claim been brought in a separate action against the foreign state; or (b) arising out of the transaction or occur- rence that is the subject matter of the claim of the foreign state; or (c) to the extent that the counterclaim does not seek relief exceeding in amount or dif- fering in kind from that sought by the foreign state.