¹ The President declared a national emergency and issued an executive order blocking Iran's threatened removal or transfer of all Iranian assets in this country. The United States and other nations imposed trade sanctions upon Iran. The United States took its case to the International Court of Justice at the Hague, which declared Iran's actions to be in violation of international law. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v. Iran), 1980 I.C.J. 200, reprinted in 19 I.L.M. .553 (1980). Finally, the United States attempted a military rescue operation that cost several American lives.

² The executive agreement purported to extinguish all hostage claims against Iran but the effectiveness of that extinguishment need not be decided since Iran, in any event, is immune from this tort action.

³ In Williams v. Iran, No. 81-1672 (D.C. Cir. Oct. 19, 1982), and Lauterbach v. Iran, No. 81-1676 (D.C. Cir. Oct 19, 1982), this Court affirmed lower court judgments dismissing plaintiffs' claims against Iran “for the reasons stated in Persinger v. Islamic Republic of Iran, No. 81-2003, decided by this Court on October 8, 1982.” See also Moeller v. Islamic Republic of Iran, No. 80-1171 (D.D.C. Aug. 5, 1981) (no appeal taken). Between the date on which we heard oral argument on this petition, and today the Ninth Circuit considered the same issue that is before us, McKeel v. Islamic Republic of Iran, 722 F.2d 582 (9th Cir. 1983), and concluded, as we do, that sovereign immunity bars appellants' suits from going forward. Id. at 589. We refer to that opinion where appropriate.

Currently, two cases against the United States by former hostages seeking compensation for extinguishment of their claims against Iran are pending in the United States Claims Court. Cooke v. United States, No. 581-82C (Ct CI.); Amburn-Lijek v. United States, No. 564-82C (Ct CI.). The Claims Court has stayed its consideration of the merits of the hostages' claims in both Cooke and Amburn-Lijek pending the disposition of the rehearing in this case. Cooke v. United States, No. 581-82C (Ct CI. Mar. 3, 1983) (denying motion for class certification).

⁴ That precept is embodied in Fed. R. Civ. P. 12(h)(3): “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”

⁵ The government maintains that subjecting a foreign state to jurisdiction for acts on United States embassy premises abroad “might well create a serious danger of conflict with the Fifth Amendment due process clause.” Brief for the United States on Rehearing at 10. Since we hold that Congress did not intend to exercise jurisdiction in a case such as this one, we need not reach the question of Congress' constitutional power to exercise such jurisdiction.

⁶ This is the conclusion that, except for this Court's initial determination, every other court which considered the question has reached. See McKeel v. Iran, 722 F.2d 582 (9th Cir. 1983); Persinger v. Iran, No. 81-00230 (D.D.C. Aug. 21, 1981); Moeller v. Iran, No. 80-1171 (D.D.C. Aug. 5, 1981); Lauterbach v. Iran, No. 81-0350 (D.D.C. June 11, 1981); Williams v. Iran, No. 79-3295 (D.D.C. 1981).

⁷ Sergeant Persinger and his parents, plaintiffs below, have, in this rehearing, substantially deferred to counsel for FLAG, Inc. They have stated to this court that “with regard to the issues presently pending before this Court, the interests of the appellants and FLAG are identical.” Brief for Appellants on Rehearing at vii, 1. Accordingly, we cite to FLAG'S briefs as if they were appellants' own.

⁸ Although the predecessor to the Act did not contain a definition of the “United States,” there is no indication in the legislative history of the 1976 Act that the addition of section 1603(c) defining the jurisdiction of the United States was intended to expand the scope of the statute's exceptions.

⁹ Appellants contend that the Vienna Convention on Diplomatic Relations, by endorsing the rule of inviolability, and by substantially removing a foreign embassy from the jurisdiction of the receiving state, establishes that the United States exercises concurrent jurisdiction over embassy premises. Brief of Amicus Curiae FLAG, Inc. on Rehearing at 21-23. Inviolability, by itself, however, does not equal extraterritoriality. Moreover, the thrust of our holding here is that Congrass, in enacting the FSIA, did not intend to exercise whatever power it may have over a foreign sovereign's tortious acts committed at U.S. embassy premises abroad.

¹⁰ Appellants argue that the “discretionary function” exception to tort liability would shield foreign governments from liability in the examples posited by the government. Brief of Amicus Curiae FLAG, Inc. on Rehearing at 42-44. This is not so. One of the express purposes of the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. (1976)—the act where the discretionary function was first set forth—is to permit suits for torts arising out of automobile accidents with U.S. government vehicles. Dalehite v. United States, 346 U.S. 15, 28 (1953). Moreover, the “discretionary function” exception has not shielded the United States from liability for torts committed while providing fire and police services—the very “services” the government argues that foreign states might hesitate to provide were we to limit their immunity for torts on embassy premises. See, e.g., Rayonier Inc. v. United States, 352 U.S. 315, 317-19 (1957) (United States could be held accountable for the negligence of its firefighters); Downs v. United States, 522 F.2d 990, 997 (6th Cir. 1975) (United States could be liable for FBI agent's negligence in attempt to stop a hijacking).

¹¹ In addition, jurisdiction in each of these cases was based on a statute defining jurisdiction for the purpose of the title dealing with federal crimes only—18 U.S.C. § 7 (1982), which covers the “special maritime and territorial jurisdiction of the United States”—as well as on different theories of jurisdiction. The Pizzarusso court expressly invoked the “protective” theory of jurisdiction, that “a state has jurisdiction to prescribe a rule of law attaching legal consequences to conduct outside its territory that threatens its security as a state or the operation of its governmental functions, provided the conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems.'” Restatement (Second) of Foreign Relations Law of the United States §33 (1965), quoted in Pizzarusso, 388 F.2d at 10. Although the Fourth Circuit in Erdos did not explicitly label the head of jurisdiction that Congress had exercised to proscribe the conduct in that case, the result can be read as based on the “nationality” principte—the exercise of jurisdiction over U.S. nationals. But Erdos is inapposite primarily for the reason set forth above—that Congress did not intend the FSIA to apply to the case before us, whereas Congress did intend the “special maritime and territorial jurisdiction of the United States“ to cover the case before the Erdos court.

¹² Appellants also claim that the attack on the embassy was an “international crime” over which “every nation has jurisdiction to prescribe and enforce.” Brief of Amicus Curiae FLAG, Inc. on Rehearing at 56. In addition, the United States could invoke the “protective principle” to exercise jurisdiction over Iran in this case. Id. at 57. There can be no doubt that Iran's actions were international crimes. See Case Concerning United States Diplomatic and Consular StafF in Tehran (United States v. Iran), 1980 I.C.J. 200, reprinted in 19 I.L.M. 553 (1980). The heinousness of Iran's actions, however, is not sufficient to give this court jurisdiction to hear the plaintiffs' claims. Neither the substantive basis of the tort, nor the seriousness of the crime, is relevant to the question of jurisdiction. The FSIA, as the expression of Congress, applies to deprive us of jurisdiction.