*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ESTATE OF JOHN DOE, et al.,
Plaintiffs,
v. Civil Action No. 08-540 (JDB) ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants. MEMORANDUM OPINION Twenty-eight years ago, on April 18, 1983, Shi'ite Muslim militants attacked the United States Embassy in Beirut, Lebanon, killing sixty-three people and injuring scores of others in an unprecedented assault on a U.S. diplomatic compound. On September 20, 1984, another attack targeted the new location of Embassy operations ("Embassy Annex") in another area of Beirut, killing at least eleven people and injuring over fifty individuals. These tragic facts have been recounted in several mass-tort lawsuits brought by the victims of this terrorism against the Islamic Republic of Iran (“Iran”) and its Ministry of Information and Security (“MOIS”), as permitted by a 1996 amendment to the Foreign Sovereign Immunities Act (“FSIA”) that revoked jurisdictional protection for terrorist-sponsoring governments. This area of law continues to evolve. Most recently, and relevant here, the National Defense Authorization Act for Fiscal Year 2008 amended the FSIA to permit foreign national employees of the United States government killed or injured while acting within the scope of their employment and their family members to sue a state sponsor of terrorism for injuries and damages resulting from an act of terrorism. Here, almost all plaintiffs are foreign national employees of the U.S. Government and their immediate *2 family members. This Court is the first to address the claims of foreign national immediate family members of U.S. government employees under the 2008 FSIA amendments.
Background
Plaintiffs bring this case pursuant to section 1083 of the National Defense Authorization
Act for Fiscal Year 2008 (“2008 NDAA” or “Act”), Pub. L. No. 110-181, § 1083, 122 Stat. 341
(2008) (codified at 28 U.S.C. §1605A (2009)), as a “Related Action” to Dammarell v. Islamic
Republic of Iran
,
No. 01-2224,
Plaintiffs are 58 foreign national employees of the U.S. Government and one U.S. national employee of the U.S. Government, who were working in the U.S. Embassy in Beirut, Lebanon, and were killed or injured as a result of the 1983 or 1984 terrorist attacks, and 255 of their immediate family members. Pl.'s Mot. for Summ. Judg. on Liability ("Pl.'s Mot.") [Docket Entry #31] at 1-2. Plaintiffs bring their claims against Iran and MOIS (collectively “Defendants”) pursuant to the 2008 NDAA, which amended the FSIA to permit foreign national employees of the United States Government killed or injured while acting within the scope of *3 their employment, members of the armed services, and their family members, to sue a state sponsor of terrorism for injuries and damages resulting from an act of terrorism. See 28 U.S.C. § 1605A(a)(2)(A)(ii)(II)&(III) (2009).
The U.S. government employee plaintiffs assert claims for wrongful death and/or
personal injury pursuant to 28 U.S.C. § 1605A(c) and seek damages for economic loss, pain and
suffering, and emotional distress. See Third Am. Comp. [Docket Entry #32] ¶¶ 363-67. Plaintiffs
who are the immediate family members of these U.S. government employees assert claims for
emotional distress and solatium or consortium pursuant to 28 U.S.C. § 1605A(c) or, in the
alternative, pursuant to D.C. law (the law of the forum), Lebanese law (lex loci), or the law of the
domicile of the Plaintiff at the time of the attack. Id. ¶¶ 368-76. The U.S. Government
employees and family members who are deceased are each represented by a legal representative,
who is an heir-at-law for the decedent and who seeks survival damages. Id. ¶¶ 377-80.
This Court and other courts in this district have held in several cases that defendants Iran
and MOIS directed and facilitated the 1983 and 1984 attacks on the U.S. Embassy and therefore
proximately caused the injuries sustained by the victims of those attacks. In each case, Iran and
MOIS were held liable to the victims of these attacks and their immediate family members for
compensatory damages. See Brewer v. Islamic Republic of Iran,
attack); Wagner
,
Plaintiffs initiated this action on March 28, 2008, and effected service on November 18,
2009, in accordance with 28 U.S.C. § 1608(a)(4). Defendants failed to respond, and the Clerk of
Court entered a default on January 29, 2010. Before plaintiffs can be awarded any relief, this
Court must determine whether plaintiffs have established their claims "by evidence satisfactory
to the court." 28 U.S.C. § 1608(e); see also Roeder v. Islamic Republic of Iran,
FINDINGS OF FACT
On April 18, 1983, at approximately 1:05 p.m., an unidentified driver crashed a vehicle
laden with hundreds of pounds of explosives into the main entrance of the United States
Embassy in Beirut. See Exs. 4-9 ; Dammarell IV,
the Embassy, the vehicle exploded with a force so powerful that seven floors in the center section of the crescent-shaped building collapsed, or "pancaked." Id. Portions of the Embassy, including *5 the Marine security guard post, the cafeteria, the United States Information Service library, the personnel section, and the consular section, were completely destroyed by the blast. Id.; Exs. 16, 54. Other parts of the building were severely damaged. Id. As a result of the blast, at least fifty- two people were killed and more than thirty-four others were injured. See Ex. 4. [3]
Following the 1983 Attack, embassy operations were temporarily transferred to the Embassy Annex, in what was believed to be a safer part of the city. See Exs. 20, 52. Despite this precaution, on September 20, 1984, shortly before noon, another vehicle loaded with thousands of pounds of explosives was denoated just outside of the Annex ("the 1984 Attack," and together with the 1983 Attack, "the Attacks"). See, e.g., Ex. 20, 53, 11. The bomb severely damaged the Annex. See Exs. 20, 28. At least eleven people were killed, including several Lebanese citizens, and at least fifty-eight others were injured. See Ex. 4, 5, 20. [4]
The 1983 bombing was the first large-scale attack against a U.S. Embassy anywhere in the world. See Ex. 15 (Oakley Dep. Tr.) at 22; see also Ex. 16 (Tr. Vol. I at 121-22). At the time, it was not immediately clear who was responsible for the bombing. See, e.g., Ex. 17 (Tr. Vol. II at 27-28); Ex. 15 (Tr. Vol. I at 121). But by 1984, the U.S. State Department, in its annual publication "Patterns of Global Terrorism: 1983," noted that "radical Lebanese Shi'a using the nom-de-guerre Islamic Jihad" and "operat[ing] with Iranian support and encouragement" were "responsible for the suicide attack[s] against the U.S. Embassy." See Ex. 27; Ex. 15 *6 (Oakley Dep. Tr.) at 21:15-22:6 ("I am confident that the government of Iran was involved directly [in the 1983 bombing] by the Hisballah organization . . . I don't think there is any doubt."). The terrorist group Islamic Jihad has been known by various names, including Right Against Wrong, the Revolutionary Justice Organization and, perhaps most commonly, Hizbollah. See Ex. 15 (Oakley Depo. Tr.) at 46. Ambassador Robert Oakley -- who, as the [5]
coordinator of the State Department's counterterrorism efforts, was tasked with assessing who was behind the 1983 Beirut Embassy bombing, see Ex. 15 (Oakley Dep. Tr.) at 9 -- testified that
it ultimately became "very clear that Islamic Jihad [Hizbollah] was behind the bombing in 1983." Id. at 21. Ambassador Oakley further expressed "confiden[ce] that the government of Iran was involved directly in the Hisballah organization, which was created, armed, trained, protected, provided technical assistance by the Iranian Revolutionary Guards." Id. at 21.
Within about two weeks of the 1984 Attack, the investigation had uncovered satellite
photo evidence indicating Iranian direction and planning of the Attack. Ex. 21; See Wagner, 172
F. Supp. 2d at 132. Both Attacks were consistent with Iran's pattern of targeting U.S. interests in
the region, and the complexity of the attack upon the U.S. Embassy in Beirut evidenced Iran's
central role in the attack. See Exs. 15, 17, 21, 26; Dammarell I,
*7 [T]here's no question that Iran was responsible for the selection of the target, provided much of the information for how to carry out the bombing, the expertise for how to build the bomb, the political direction that said that this was an important target to bomb, provided financial support for the bombers. It has the Iranians' fingerprints all over it. . . . [T]his was quite a sophisticated and large bomb against a well-guarded target. And at the time, the people from the Shi'a community who claimed responsibility for this were just getting into the business of having a militia and having -- and engaging in some kinds of bombings. They hadn't done a whole lot. They didn't have established expertise; they didn't have a group of people locally whom they could draw upon to do this. And furthermore, at this time they were so dependant upon financial support from Iran, they had no independent means of financial support, and furthermore, they were so dependant upon political guidance from Iran, Iran was quite directly ordering what targets to do, what not to do.
Id. (Tr. Vol. II at 20-21).
The bombing of the U.S. Embassy in Beirut in April 1983 represented a turning point with respect to Iran-sponsored terrorism conducted in Lebanon by Hizbollah. As Ambassador Oakley testified at the Dammarell evidentiary hearing:
I think it was a seminal event in anti-U.S. terrorism[,] and Lebanon seems to be the easiest place for the Iranians to operate. As I've said before, they had several purposes, one was to drive the United States out of Lebanon, its military forces and also . . . cultural influence. Same thing is true of the French who were supporting universities there and also had military forces there as part of the Multinational Force. The Iranians wanted to drive us out so they could put in an Iranian Shiìa revolutionary state. The second thing they wanted to do is to punish the United States for its support of Iraq, against Iran in the Iraq/Iran war, which at that stage was at its peak and the Iranians were at the losing end of it at that stage so they wanted to make it very, very clear they were going after us. The third thing they wanted to do was -- all of these were helped by blowing up our embassy, was to show the power which Iran and its supporters could generate. And here you have something that's not quite as powerful, but almost as the removal of the Shah as supported by the United States and indirectly by Israel. And finally they wanted to cement their relationship within the entire Middle East by showing what they could do against us, which made them a force throughout the [Muslim] world, if you will. . . . So it serve[d] several different purposes for the government of Iran and did so with a degree of success. [Although] we stood our ground, we weren't driven out of Lebanon at this stage. It was only later on when they blew up the [Marine] barracks, which was a huge shock to *8 the American people that finally public and political pressure convinced the Reagan administration they should pull the U.S. forces out of Lebanon.
Ex. 15 (Oakley Dep. Tr.) at 50-52.
The 1979 Iranian revolution and the 1982 Israeli invasion of Lebanon led to a
radicalization of Lebanon's Shi'ite community, and ultimately to the formation, by Iran, of
Hizbollah. See Ex. 26; see also Ex. 17 (Dammarell Tr. Vol. II 9:16-19, Clawson Test.) ("Iran
encourage[d] the formation of Hisballah to fight the Western presence in Lebanon, to engage in
armed struggle against the Israelis, and also to agitate for Islamic law.") Iran provided Hizbollah
with military arms, training, and other supplies, and issued propaganda to encourage Lebanese
Shi'ites to join the organization. Dammarell IV,
Iran also provided Hizbollah with financial support. Id. Indeed, while support of Hizbollah was not specifically provided for in Iran's annual budget, "the supreme religious leader and the president openly acknowledged that Iran was providing financial support, in fact proudly acknowledged that Iran was providing the financial support" for Hizbollah. Id. (quoting Pl.'s Ex. 17 at 30). Dr. Clawson estimated that in 1983, the year of the Beirut Embassy bombing, Iran spent in the range of $50 million to $150 million on its terrorist efforts. See Ex. 17 at 31. *9 Hizbollah accomplished its terrorist acts not just with the support of the Iranian government generally, but with the specific assistance of MOIS. Id.; see also Ex. 17. An Iranian government ministry, MOIS was formally established by law in 1983 or 1984, although it had previously existed as an offshoot of the secret police under the regime of the former Shah of Iran. Id. As part of its operations, MOIS acted, and continues to act, as "a prime conduit to terrorist and extremist groups." Ex. 40; see also Exs. 39, 17. In Lebanon in particular, MOIS supported Hizbollah, nurturing it with "financial assistance, arms and training." Dammarell IV, 404 F. Supp. 2d at 273; see also Ex. 17 at 12. With this support, Hizbollah evolved into "one of the most capable and professional terrorist organizations in the world." Dammarell IV, 404 F. Supp. 2d at 273.
On January 19, 1984, President Reagan designated Iran as a state sponsor of terrorism. Id. This designation was in response to Iran's role in sponsoring a number of terrorist acts in Lebanon, including the Attacks at issue here. See id. Iran has ever since remained on the State
Department list of state sponsors of terrorism. Id.; see also 22 C.F.R. § 126.1(d) (2011); 31
C.F.R. § 596.201 (2009). In fact, according to the Department of Defense, "[f]or over two
decades, Iran's involvement in international terrorism has been unmatched by any other state.
Iran remains the world's most capable and persistent state sponsor of terrorism." Dammarell IV,
CONCLUSIONS OF LAW I. LEGAL BACKGROUND
The "terrorism exception" to the FSIA was first enacted as part of the Mandatory Victims
Restitution Act of 1996, which was itself part of the larger Antiterrorism and Effective Death
Penalty Act of 1996. See Pub. L. No. 104-132, § 221(a)(1)(C), 110 Stat. 1214, 1241 (formerly
codified at 28 U.S.C. § 1605(a)(7)). The exception permitted claims against foreign state
sponsors of terrorism for acts of terrorism that resulted in personal injury or death, where either
the claimant or victim was a United States citizen at the time of the terrorist act. See 28 U.S.C. §
1605(a)(7) (2007). Shortly thereafter, Congress passed the so-called “Flatow Amendment” in the
Omnibus Consolidated Appropriations Act of 1996. See Pub. L. 104-208, § 589, 110 Stat. 3009-
1, 3009-172 (codified at 28 U.S.C. § 1605 note). Initially, some courts construed § 1605(a)(7)
and the Flatow Amendment, read in tandem, as creating a federal cause of action against the
foreign state sponsor of terrorism. See, e.g.
,
Flatow v. Islamic Republic of Iran,
In Cicippio-Puleo v. Islamic Republic of Iran, the D.C. Circuit concluded that neither
§ 1605(a)(7) nor the Flatow Amendment itself created a cause of action against the foreign state.
In some cases, applying relevant state law created "practical problems for litigants and the
courts." Pl.'s Mot. at 10. Under applicable choice of law principles, district courts applied the
state tort law of each individual plaintiff's domicile, which in many cases would involve several
different states for the same terrorist incident. See, e.g.
,
Dammarell IV,
To address these issues, Congress enacted section 1083 of the 2008 NDAA, which
amended the “terrorism exception” and other related FSIA provisions. The Act repealed §
1605(a)(7) of Title 28 and replaced it with a separate section, § 1605A, which, among other
things: (1) broadened the jurisdiction of federal courts to include claims by members of the U.S.
armed forces and employees or contractors of the U.S. Government injured while performing
their duties on behalf of the U.S. Government; and (2) created a federal statutory cause of action
for those victims and their legal representatives against state sponsors of terrorism for terrorist
acts committed by the State, its agents, or employees, thereby abrogating Cicippio-Puleo. See
*12
Simon v. Republic of Iraq,
This case is the first to apply § 1605A to non-U.S. national plaintiffs who worked for the U.S. Government (and their non-U.S. national family members), who may now be entitled to compensation for personal injury and wrongful death suffered as the result of the terrorist attacks on the U.S. Embassy and Embassy Annex in Beirut in 1983 and 1984.
II. JURISDICTION UNDER THE FSIA
The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611, is the sole basis for
obtaining jurisdiction over a foreign state in the United States. Argentine Republic v. Amerada
Hess Shipping Corp.,
A. Service of Process
Courts may exercise personal jurisdiction over a foreign state where the defendant is
properly served in accordance with 28 U.S.C. § 1608. See 28 U.S.C. § 1330(b); TMR Energy
Ltd. v. State Property Fund of Ukraine,
The preferred method of service is delivery of the summons and complaint "in accordance with any special arrangement for service between the plaintiff and the foreign state." 28 U.S.C. § 1608(a)(1). If no such arrangement exists, then delivery is to be made "in accordance with an applicable international convention on service of judicial documents." Id. 1608(a)(2). If neither of the first two methods is available, plaintiffs may send the summons, complaint, and a notice of suit (together with a translation of each into the official language of the foreign state) "by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.” Id. 1608(a)(3). Finally, if mailed service cannot be accomplished within thirty days, then the statute permits plaintiffs to request that the clerk of the court dispatch two copies of the summons, complaint, and notice of suit (together with a translation of each into the foreign state's official language) to the Secretary of State, who then "shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted." Id. 1608(a)(4). "Strict adherence to the terms of 1608(a) is required." Transaero, Inc. v. La Fuerza Aerea Boliviana,30 F.3d 148 , 154 (D.C. Cir.1994).
On June 23, 2009, plaintiffs requested the Clerk of the Court to effect service upon defendants pursuant to § 1608(a)(3), and the Clerk certified that she performed the requested mailing on June 24, 2009. See Docket Entries #15, 16, 17. However, as no certification of service was received within 30 days, plaintiffs, on July 31, 2009, requested the Clerk to transmit *14 the proper documents to the U.S. Department of State for diplomatic service pursuant to § 1608(a)(4). See Docket Entries #18, 19. On August 5, 2009, the Clerk certified that she had complied with plaintiffs' request by mailing the proper documents to the U.S. Department of State and requesting that they attempt service upon defendants through diplomatic channels. See Docket Entry #20. On December 31, 2009, the U.S. Department of State informed the Court that service had been properly effected upon both defendants, effective November 18, 2009. See Docket Entry #23. Defendants did not respond or make an appearance within sixty days, and thus, pursuant to § 1608(d), the Clerk entered default on January 29, 2010. See Docket Entry #25. Hence, as defendants were properly served in accordance with § 1608, this Court has personal jurisdiction over them.
B. Subject Matter Jurisdiction
The provisions relating to the waiver of immunity for claims alleging state-sponsored terrorism, as amended, are set forth at 28 U.S.C. § 1605A(a). Section 1605A(a)(1) provides that a foreign state shall not be immune from the jurisdiction of U.S. courts in cases where
money damages are sought against [it] for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, 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.
For a claim to be heard in a case such as this -- filed as a “Related Action” under § 1605A(b) -- the foreign state defendants must have been designated by the U.S. Department of State as a "state sponsor of terrorism" when the original action under § 1605(a)(7) was filed. See 28 U.S.C. § 1605A(a)(2)(A)(i)(II)). Finally, subsection (a)(2)(A)(ii) requires that the "claimant *15 or the victim was, at the time the act . . . occurred --
(I) a national of the United States;
(II) a member of the armed forces; or
(III) otherwise an employee of the Government of the United States . . . acting within the scope of the employee's employment . . . .
28 U.S.C. § 1605A(a)(2)(A)(ii)(I)-(III) (emphasis added).
Plaintiffs satisfy each of the requirements for subject matter jurisdiction. First, defendant Iran was designated as a state sponsor of terrorism at the time the Dammarell and Wagner cases were filed. Second, plaintiffs’ injuries were caused by defendants' acts of "extrajudicial killing" and provision of "material support" for such acts to their agents. Third, all plaintiffs were either themselves U.S. Government employees at the time of the attacks or their claims are derived from claims where the victims were U.S. Government employees at the time of the attack as required by § 1605A(a)(2)(A)(ii)(I)-(III).
i. Iran Designated As a State Sponsor of Terrorism In a case filed as a "related action" under § 1605A(b), the foreign state defendant must have been designated as a state sponsor of terrorism when original actions were filed pursuant to 28 U.S.C. § 1605(a)(7). 28 U.S.C. § 1605A(a)(2)(A)(i)(II). Iran was formally declared a "state sponsor of terrorism" on January 19, 1984, by U.S. Secretary of State George P. Schultz in accordance with section 6(j) of the Export Administration Act of 1979, 50 U.S.C. App. 2405(j), see also 49 Fed. Reg. 2836-02 (statement of Secretary of State George P. Schultz), and remains designated as a state sponsor of terrorism. All of the related cases were filed after 1984. Thus, the requirements set forth in § 1605A(a)(2)(A)(i)(II) are satisfied.
ii. Extrajudicial Killing
The FSIA, as amended, strips immunity "in any case . . . in which money damages are sought against a foreign state for personal injury or death that was caused by an act of . . . extrajudicial killing . . . or the provision of material support or resources for such an act if such an act or provision of material support or resources is engaged in by an official, employee, or agent or such foreign state while acting within the scope of his or her office, employment, or agency." 28 U.S.C. § 1605A(a)(1). The FSIA refers to the Torture Victim Protection Act of 1991 ("TVPA") for the definition of "extrajudicial killing." See 28 U.S.C. § 1605A(h)(7). The TVPA provides that
the term "extrajudicial killing" means a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all of the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.
28 U.S.C. § 1350 note; see also Valore v. Islamic Republic of Iran,
Here, as in Dammarell, Wagner, and the other related cases, the 1983 and 1984 bombings
were acts of "extrajudicial killing." Dammarell I
,
iii. Material Support
Similarly, several courts have ruled that Iran and MOIS directed and facilitated the 1983
and 1984 Attacks on the U.S. Embassy and its Annex and provided "material support" to their
agent Hizbollah in carrying out the attacks. See, e.g., Wagner,
18 U.S.C. §§ 2339A(b)(1); 28 U.S.C. § 1605(h)(3).
Iran's involvement in both the establishment of Hizbollah as a terrorist organization and
the on-going terrorist activities of Hizbollah is well-established. See, e.g., Wagner, 172 F. Supp.
2d at 133; Dammarell I,
Evidence produced in the Wagner trial demonstrated that the 1984 attack on the U.S.
Embassy Annex was also directed by Iran. See
The testimony of retired U.S. Ambassador Robert B. Oakley and Dr. Patrick L. Clawson, Director of Research at the Washington Institute for Near East Policy, together with declassified intelligence materials from the U.S. Department of State and the Central Intelligence Agency admitted into evidence by the Court, conclusively establish the identity of the perpetrators of the September 20, 1984, bombing of the U.S. Embassy in Beirut . . . to be the militant Islamic fundamentalist Shi'ite organization known as Hizballah, the Lebanese organization publicly committed to the expulsion of the American presence in Lebanon by terrorist means, as well as to the post-war reincarnation of Lebanon as an Islamic fundamentalist state. Hizballah, in turn, has been shown to be an agency or instrumentality of the Iranian MOIS, employed (somewhat less publicly) by the MOIS to achieve similar ends -- by terrorist means when necessary -- as well to establish Iranian ascendancy as the premier Islamic patron of the Shi'a population in Lebanon.
Id.; see also Welch,
The FSIA does not require this Court to relitigate issues that have already been settled,
and this Court may "take judicial notice of related proceedings and records in cases before the
*19
same court." See Estate of Heiser v. Islamic Republic of Iran,
iv. Causation
The next question is whether defendants' support of Hizbollah caused plaintiffs' injuries.
See 28 U.S.C. § 1605A(c). The causation requirement under the FSIA is satisfied by a showing
of proximate cause. Kilburn v. Socialist People's Libyan Arab Jamahiriya,
* * * * * Hence, this Court has jurisdiction because service on defendants was proper and the Court has subject matter jurisdiction under § 1605A.
III. TIMELINESS
A. Plaintiffs Have Complied With the 60-day Filing Deadline The 2008 Amendments also set forth specific requirements for bringing a case as a “Related Action.” Subsection 1083(c)(3) provides:
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 . . . , any other action arising out of the same act or incident may be brought under section 1605A of title 28, United States Code [this section], if the action is commenced not later than the latter of 60 days after
(A) the date of the entry of judgment in the original action; or (B) the date of the enactment of this Act [Jan. 29, 2008].
28 U.S.C. 1605A note, § 1083(c)(3) of the 2008 NDAA.
Here, plaintiffs have filed this action as a “Related Action” to Dammarell , Wagner , Salazar , and Welch , because the claims in this case arise out of the same acts that were the bases of those prior actions -- the 1983 and 1984 bombings of the U.S. Embassy and the Embassy Annex in Beirut, Lebanon. As required by § 1083(c) of the 2008 NDAA, each of those related cases was timely commenced under section 1605(a)(7), and plaintiffs filed this action on March [6]
*21 28, 2008, within the 60-day statutory window for filing "related" claims. Hence, this action has been properly and timely filed as a Related Action under section 1083(c)(3) of the 2008 NDAA.
For the same reasons, this action meets the statute of limitations requirements set forth in 28 U.S.C. § 1605A(b), which provides that an action is timely "if the action is commenced, or a related action was commenced under section 1605(a)(7) (before the date of the enactment of this section) . . . not later than the later of (1) 10 years after April 24, 1996; or (2) 10 years after the date on which the cause of action arose." Because the related actions were commenced before April 24, 2006, this action is timely.
B. Plaintiffs' Claims Comply with Fed. R. Civ. P. 15(c)
Rule 15(c) of the Federal Rules of Civil Procedure provides that claims of additional
plaintiffs in an amended complaint relate back to the date of the original pleading where (1) the
new claims arise from the same conduct, transaction or occurrence set forth in the original
pleading; and (2) the defendants had notice of the existence and involvement of the new
plaintiffs. See Fed. R. Civ. P. 15(c); Leachman v. Beech Aircraft Corp
.
,
Here, the claims by the new plaintiffs raised in the third amended complaint arise from
the same conduct, transaction or occurrence set forth in the original pleadings -- the 1983 and/or
1984 bombings of the U.S. Embassy in Beirut. See Leachman,
1983) (finding that the claims of new plaintiffs related back to original complaint because the
new complaint did not add any new claims). Further, the defendants in this case had adequate
notice that additional plaintiffs likely would be identified, given the dozens of employees killed
and/or injured in the two bombings, each of whom, in turn, had relatives who suffered as a result
of the physical impact of the bombing on family members. See, e.g.
,
Peterson,
IV. FEDERAL CAUSE OF ACTION
Once jurisdiction has been established over plaintiffs' claims against Iran and MOIS, liability in a default judgment case is established by the same evidence if "satisfactory to the Court." 28 U.S.C. § 1608(e). Plaintiffs' claims are brought under section 1605A(c), the newly created federal cause of action, or, in the alternative, under applicable state or foreign law. *23 Section 1605A(c) authorizes claims against state sponsors of terrorism for compensatory and punitive damages, for personal injury or death caused by acts described as follows.
(c) Private right of action. --A foreign state that is or was a state sponsor of terrorism as described in subsection (a)(2)(A)(i), and any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, shall be liable to--
(1) a national of the United States,
(2) a member of the armed forces,
(3) an employee of the Government of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee's employment, or
(4) the legal representative of a person described in paragraph (1), (2), or (3), for personal injury or death caused by acts described in subsection (a) (1) of that foreign state, or of an official, employee, or agent of that foreign state, for which the courts of the United States may maintain jurisdiction under this section for money damages. In any such action, damages may include economic damages, solatium, pain and suffering, and punitive damages. In any such action, a foreign state shall be vicariously liable for the acts of its officials, employees, or agents.
28 U.S.C. §1605A(c).
The plain meaning approach to statutory construction is well established. Indeed, "[t]he
plain meaning of legislation should be conclusive, except in the 'rare cases [in which] the literal
application of a statute will produce a result demonstrably at odds with the intentions of its
drafters.'" United States v. Ron Pair Enterp., Inc.,
A straightforward reading of § 1605A(c) creates a cause of action for four categories of individuals: a national of the United States, a member of the armed forces, a U.S. Government employee or contractor, or a legal representative of such a person. See §1605A(c). Absent from these four categories are non-U.S. national family members of the victims of terrorist attacks.
The statutory language that follows the listing of the four categories of individuals in § 1605A(c) does not expand the private right of action beyond those four categories. The cause of action is further described as "for personal injury or death caused by acts described in subsection (a) (1) of that foreign state, or of an official employee or agent of that foreign state, for which the courts of the United States may maintain jurisdiction under this section for money damages." Id. Plaintiffs do not argue (correctly) that the statutory language creates a cause of action for any individual victim or claimant "for which the courts of the United States may maintain jurisdiction." Indeed, the text refers back to the waiver of sovereign immunity as to a foreign state for terrorist acts as provided in section (a)(1).
Nonetheless, the family member plaintiffs contend that, "[a]lthough they do not fit
expressly within the four categories listed in § 1605A(c)(1)-(4), once the immunity of Iran and
MOIS has been waived as to their claims, the intent of Congress makes clear that the immediate
family members of the U.S. Government employees, notwithstanding their status as foreign
*25
nationals, are entitled to bring claims under the federal statutory cause of action and seek
damages for their losses, including solatium/consortium and pain and suffering." Pl.'s Mot. at 37.
Plaintiffs explain that the legislative history reveals that a purpose of the 2008 amendments to the
FSIA was to "fix[] the inequality" of rights between U.S. citizens and non-U.S. citizens to seek
relief from the perpetrators of terrorist acts. See Pl.'s Mot. at 11; 154 Cong. Rec. S54 (daily ed.
Jan. 22, 2008) (statement by Sen. Lautenberg). And, plaintiffs continue, "the disparity among the
various state laws regarding the recovery of emotional distress by immediate family members []
prompted Congress to create a federal statutory cause of action that would provide equality and
uniformity in the recovery of compensatory damages regardless of [a plaintiff's] domicile." See
Pl.'s Mot. at 38; 154 Cong. Rec. S54 (daily ed. Jan. 22, 2008) (statement by Sen. Lautenberg)
(noting that the amendments would fix the problem of "judges hav[ing] been prevented from
applying a uniform damages standard to all victims in a single case because a victim's right to
pursue an action against a foreign government depends upon State law"). Indeed, if foreign
national immediate family members of victims do not have a cause of action under § 1605A(c),
then Senator Lautenberg did not "fix" the problem of disparate damages standards for this
particular category of claimants. But it is not the court's role to fix a problem that Congress failed
to address. As Cicippio-Puleo instructed, "the Supreme Court has declined to construe statutes to
imply a cause of action where Congress has not expressly provided one."
Plaintiffs cite to several cases where courts have found jurisdiction and a cause of action
under §1605A and, in so doing, have noted that because §1605A(c) incorporates the elements
required to waive the foreign state's immunity and vest the court with subject matter jurisdiction
under section 1605A, "liability under section 1605A(c) will exist whenever the jurisdictional
*26
requirements of section 1605A are met." Calderon-Cardona v. Democratic People's Republic of
Korea,
Hence, those plaintiffs who are foreign national family members of victims of the
terrorist attacks in Beirut lack a federal cause of action. But they may continue to pursue claims
under applicable state and/or foreign law. Although § 1605A created a new cause of action, it
did not displace a claimant's ability to pursue claims under applicable state or foreign law upon
the waiver of sovereign immunity. See Simon,
In circumstances where the federal cause of action is not available, courts must determine
whether a cause of action is available under state or foreign law and engage in a choice of law
analysis. Federal courts addressing FSIA claims in the District of Columbia apply the choice of
law rules of the forum state. Oveissi v. Islamic Republic of Iran,
Under District of Columbia choice of law rules, the court must first determine if a conflict
exists between the law of the forum and the law of the alternative jurisdictions. If there is no true
conflict, the court should apply the law of the forum. See USA Waste of Md, Inc. v. Love
,
954
A.2d 1027, 1032 (D.C. 2008) ("A conflict of laws does not exist when the laws of the different
jurisdictions are identical or would produce the identical result on the facts presented."). If a
conflict is present, the District of Columbia employs a "'constructive blending' of the 'government
interests' analysis and the 'most significant relationship' test" to determine which law to apply.
Oveissi
,
Three conceivable choices of law are presented in this case: the law of the forum state
(the District of Columbia), the law of the place of the tort (Lebanon), or the law of the domicile
state or country of each plaintiff (including domestic and foreign locations). See Dammarell II,
A. Domestic Law
As in Dammarell, the choice of law analysis points away from Lebanon, the place of the
injury, and toward applying the laws of a United States forum. First, no clear conflict of law is
present between the forum (District of Columbia) and Lebanon. District of Columbia law
parallels Lebanese law regarding the availability of a claim for emotional distress, solatium,
and/or consortium related to the wrongful death or tortious injury of an immediate relative. Like
District of Columbia law, Lebanese law allows for the award of compensation for "moral
damages," such as emotional distress, suffered as the result of the wrongful death or tortious
injury of an immediate relative. See Pl.'s Ex. 1, Lebanese Law Opinion §§ 3.1-3.2 (Nov. 19,
2010). Likewise, under Lebanese law, an heir of a decedent may bring the equivalent of a
"Survival Act" claim under District of Columbia law on behalf of the heirs to recover damages
for emotional distress suffered by a decedent before death. Id. § 3.1; see also D.C. Code § 12-
101. Based on these key similarities, it is likely that "the laws of the different jurisdictions . . .
would produce the identical result on the facts presented," USA Waste,
Second, to the extent that United States law and the laws of Lebanon (or another foreign
jurisdiction) conflict, the District of Columbia's "governmental interests" choice of law test in
state-sponsored terrorism cases strongly favors the application of United States law over
Lebanese or other foreign law. Although "[t]he law of a foreign country has provided the cause
of action in some cases arising out of mass disasters that occurred on foreign soil," Dammarell II,
1987) (applying Polish law to airplane crash occurring in Poland), and Barkanic v. Gen. Admin.
of Civil Aviation of the People's Republic of China,
Here, just as in Dammarell, "the particular characteristics of this case heighten the
interests of a domestic forum and diminish the interest of the foreign state. The injuries in this
case are the result of a state-sponsored terrorist attack on a United States embassy and diplomatic
personnel. The United States has a unique interest in its domestic law, rather than the law of a
foreign nation, determining damages in a suit involving such an attack." Dammarell II, 2005 WL
756090, at *20; see also Restatement (Third) of Foreign Relations Law § 402(3) (1987)
(recognizing that the United States has an interest in projecting its laws overseas for "certain
conduct outside its territory by persons not its nationals that is directed against the security of the
*31
state or against a limited class of other state interests"). These considerations "elevate the
interests of the United States to nearly its highest point." Dammarell II,
B. District of Columbia Law
In addition to the strong governmental interest in applying United States law in this case,
the interests of uniformity of decision among the foreign national family members points to the
application of the law of the forum. Most of these plaintiffs are domiciled in Lebanon, although
some are domiciled in France, Saudi Arabia, Canada, Tunisia, California, Florida, Kentucky,
New Jersey, and Florida. See Pl.'s Mot. at 41. In previous decisions, this Court has applied the
laws of the several domiciliary states. See, e.g., Dammarell II,
however, the interests of uniformity provided by the law of the forum state, which also has a
significant interest in the underlying events, provides the most appropriate choice of law for all
foreign national family members who lack a federal cause of action. See Kaiser-Georgetown
Cmty. Health Plan,
In the six years since the Dammarell decision, Congress -- through significant amendments to the FSIA -- has sought to strengthen enforcement of United States terrorism laws and to extend their protections to foreign nationals who are employees of United States embassies targeted by terrorists and their immediate family members. See, e.g., Pl.'s Mot. at 11 (citing Sen. Lautenberg's statement that the FSIA "legislation is essential to providing justice to those who have suffered at the hands of terrorists and is an important tool designed to deter future state-sponsored terrorism," 154 Cong. Rec. S54 (daily ed. Jan. 2, 2008)). Moreover, the 2008 FSIA amendments were directed, in part, to correct the problem of "disparity among the various state laws regarding the recovery of emotional distress by immediate family members." See Pl.'s Mot. at 39; 154 Cong. Rec. S54 (daily ed. Jan. 22, 2008) (statement by Sen. Lautenberg) (noting that the amendments would fix the problem of "judges hav[ing] been prevented from applying a uniform damages standard to all victims in a single case because a victim's right to pursue an action against a foreign government depends upon State law").
As discussed above, Congressional desire to promote uniformity does not, by itself, create
a federal cause of action for non-United States national family members where the statutory text
fails to do so. But efficiency and uniformity are appropriate and meaningful factors in a choice
of law analysis. Without doubt, applying District of Columbia law will provide greater
uniformity of result, as individual plaintiffs domiciled in different states and foreign nations will
all be subject to the same substantive law. Although "the D.C. Court of Appeals has emphasized
that concerns of uniformity and familiarity cannot prevail when another location otherwise has 'a
significantly greater interest than does the District' in the cause of action," Dammarell II, 2005
WL 756090, at *20 (citing Mims v. Mims,
The District of Columbia's connection to the terrorist attacks in this case further supports this choice of law conclusion. To be sure, the 1983 and 1984 embassy bombings took place in Lebanon, the nationalities and domiciles of the various victims and plaintiffs are disparate and varied, and the defendants have no connection to the United States. But a unifying factor in this case is that all of plaintiffs' claims derive from employment with a federal agency headquartered in the District of Columbia, the seat of the federal government. The application of District of Columbia substantive law best promotes the United States' interest in applying domestic law rather than the law of a foreign nation, Congress's intent to promote uniformity of result, and the District of Columbia's real connection to the attacks in this case. Hence, this Court will apply the law of the District of Columbia to plaintiffs' claims that do not arise under the federal cause of action at § 1605A(c).
CONCLUSION
For the foregoing reasons, final judgment on liability will be entered in favor of plaintiffs and against defendants. Plaintiffs' claims, under federal or state law, will be referred to [7]
*34 Magistrate Judge Facciola, who will receive evidence and prepare proposed findings and recommendations for the disposition of those claims in a manner consistent with this opinion. A separate order will be issued on this date.
/s/ John D. Bates JOHN D. BATES United States District Judge Dated: August 16, 2011
2d at 24.
Notes
[1] The findings this Court entered over the course of the Dammarell case are found at 281
F. Supp. 2d 105 (D.D.C. 2003) (“Dammarell I”); No. 01-2224,
[2] Exhibit ("Ex. __") references are to the exhibits attached to plaintiffs' motion for summary judgment on liability, which differ from the exhibit numbers cited in prior Dammarell cases that referred to the evidence admitted at the April 2003 hearing regarding the 1983 bombing.
[3] Various sources have reported larger numbers for the casualties of the 1983 Embassy
Attack, but there is no question that at least fifty-two people were killed and at least thirty-four
others were injured. See, e.g. Exs. 16, 22; Dammarell IV,
[4] As with the 1983 bombing, various sources have reported different numbers of casualties. See, e.g., Ex. 5. But there is no question that at least eleven people were killed and at least fifty-eight others were injured.
[5] Transliteration of the organization's name has produced various spellings, including "Hizbollah," "Hizballah," and "Hezbollah." For ease of reference, Hizbollah is used herein, except where an alternate spelling is reflected in exhibits or the official transcript of proceedings.
[6] All the prior related cases were filed within 10 years of the enactment of the state sponsorship of terrorism exception on April 25, 1996: Dammarell was filed on October 29, 2001; Wagner was filed on July 27, 2000; Welch was filed on April 19, 2001; and Salazar was filed on March 22, 2002.
[7] For plaintiffs' federal claims under § 1605A(c), "[t]he Court is presented with the
difficulty of evaluating these claims under the FSIA-created cause of action, which does not spell
out the elements of these claims that the Court should apply." Valore,