Shlomo Leibovitch v. Islamic Republic of
2012 U.S. App. LEXIS 20032
| 7th Cir. | 2012Background
- Leibovitch family attacked by PIJ terrorists on Trans-Israel highway; N.L. killed (Israeli national), S.L. (United States citizen) severely injured.
- Plaintiffs sued Iran under FSIA terrorism exception §1605A for acts of terrorism and material support to PIJ; S.L. damages awarded by district court; others’ claims dismissed for lack of citizenship.
- District court found jurisdiction over S.L.’s injuries and vicarious liability for Iran; dismissed claims by other family members under §1605A and declined to exercise supplemental Israeli-law claims.
- Leibovitchs appeal contends FSIA §1605A confers original jurisdiction over emotional-distress claims of foreign-national family members under Israeli law.
- Court agrees jurisdiction exists to hear emotional-distress claims under Israeli law and remands for consideration of those claims; vacates district court’s hypothetical Israeli-law ruling on solatium.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1605A(a)(2)(A)(ii) grants jurisdiction for emotional-distress claims by foreign national family members. | Leibovitchs argue pass-through survives and jurisdiction extends to US-national victim’s family. | Iran argues jurisdiction aligns with §1605A(c) private action limitations. | Yes; jurisdiction extends to these family claims. |
| Whether §1605A(c) private federal action is the exclusive remedy for foreign nationals. | Family members cannot rely on §1605A(c) but may proceed via pass-through under Israeli-law. | Private action limits recovery to listed US claimants. | Pass-through remains viable; not exclusive. |
| Whether the pass-through approach preserves a broader jurisdictional grant despite §1605A(c). | Congress intended broad jurisdiction to deter state sponsors of terrorism, including foreign-family claims. | Pass-through is superseded by private-action scope. | Pass-through survives Congress’s reforms. |
| Whether S.L.’s status as a US national victim warrants jurisdiction for family claims under §1605A(a)(2)(A)(ii). | Victim status supports jurisdiction for family claims. | Jurisdict. tied to claimant/victim structure; interpretation uncertain. | Congress intended beneficiaries when either party is US national; jurisdiction exists. |
| Whether the district court’s solatium/damages analysis under Israeli law should be reconsidered on remand. | Israeli-law emotional-distress claims should proceed if jurisdiction exists. | Need to resolve whether Israeli law recognizes such claims. | Remand to reconsider emotional-distress claims under Israeli law. |
Key Cases Cited
- First Nat. City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983) (FSIA does not generally provide substantive liability; pass-through theories used for state actions)
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) (FSIA framework; immunity waivers and jurisdictional reach)
- Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004) (held that §1605(a)(7) and Flatow Amendment do not create private action against a foreign state; pass-through approach governs)
- La Reunion Aerienne v. Socialist People’s Libyan Arab Jamahiriya, 533 F.3d 837 (D.C. Cir. 2008) (statutory language on claimant/victim nationalism; jurisdictional scope for third-party entities)