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723 FEDERAL SUPPLEMENT, 2d SERIES
provision, section 1605A. Section 1605A(c)
creates a new federal cause of action for
American citizens injured in terrorist attacks sponsored by designated foreign
state sponsors of terrorism. 28 U.S.C.
§ 1605A(c).
Thus, ‘‘§ 1605A(c) abrogates Cicippio–
Puleo TTT by creating a federal right of
action against foreign states, for which
punitive damages may be awarded.’’ Simon v. Iraq, 529 F.3d 1187, 1190 (D.C.Cir.
2008), rev’d on other grounds, ––– U.S.
––––, 129 S.Ct. 2183, 173 L.Ed.2d 1193
(2009).
Indeed, section 1605A is ‘‘more advantageous to plaintiffs in several respects.’’
Id. For example, section 1083 of the
NDAA amends section 1610 of the FSIA,
which governs enforcement of judgments
against foreign states. Section 1083 adds
a new subsection, section 1610(g)(1), which
significantly eases enforcement of judgments entered under section 1605A. See
28 U.S.C. § 1610(g)(1).
Moreover, the NDAA includes provisions allowing plaintiffs to refile pending
section 1605(a)(7) cases under section
1605A (provided certain conditions are
met) and to be able to benefit from all the
advantages of a section 1605A action. Section 1083(c)(3) provides in relevant part:
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 TTT any
other action arising out of the same act
or incident may be brought under section 1605A of title 28, United States
21. Plaintiffs clearly met the two conditions
required by section 1083(c)(3)—that the original section 1605(a)(7) action was ‘‘timely
commenced’’ and that the section 1605A action be commenced no later than 60 days
after the enactment of the NDAA. Pursuant to
section 1605(f), actions pursuant to section
1605(a)(7) were timely if filed within ten years
after the date of the enactment of section
Code, if the action is commenced not
later than TTT 60 days after TTT the date
of the enactment of this Act.
28 U.S.C. § 1083(c)(3). See, generally, In
re Islamic Republic of Iran Terrorism
Litigation, 659 F.Supp.2d 31 (D.D.C.2009)
(discussing NDAA’s refiling provisions).
The plaintiffs in this action originally
brought suit against the defendants under
section 1605(a)(7) in the United States District Court for the District of Columbia.
Calderon–Cardona v. Democratic People’s
Republic of Korea, Civil No. 06–744(RBW)
(D.D.C.) (‘‘D.C. Action’’).
Section 1605A was enacted during the
pendency of the D.C. Action. Accordingly,
in order to obtain the advantages provided
by Congress under section 1605A, the
plaintiffs dismissed the D.C. Action without prejudice (id. at Docket No. 14) and
exercised their right under section
1083(c)(3) of the NDAA 21 to file this action
in this district under section 1605A.
Section 1605A eliminates foreign sovereign immunity in cases ‘‘in which money
damages are sought against a foreign state
for personal injury or death that was
caused by an act of TTT extrajudicial killing
TTT or the provision of material support or
resources for such an act if such act or
provision of material support or resources
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.
§ 1605A(a)(1).
1605(a)(7). Simon, 529 F.3d at 1194–1196.
Section 1605(a)(7) was enacted on April 24,
1996, and the plaintiffs’ D.C. Action was filed
on April 24, 2006 (Calderon–Cardona, Civ. No.
06–744 at Docket No. 1) and thus was timely.
This action was filed on March 27, 2008,
which is less than 60 days after the enactment
of the NDAA on January 28, 2008.