Mohammadi v. Islamic Republic of Iran

See case details

Manoucher MOHAMMADI, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

Civil Action No. 09-1289 (BAH).

United States District Court, District of Columbia.

May 31, 2013.

Opinion Denying Reconsideration July 12, 2013.

Procedure 15(a)(2) [Dkt. # 30]. A separate order will issue.

Larry E. Klayman, Law Office of Larry Klayman, Washington, DC, for Plaintiffs.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

This is an action brought by and on behalf of four former Iranian nationals who were imprisoned, tortured, and/or killed in a Tehran prison. The action is brought against the Islamic Republic of Iran, Ayatollah Sayid Ali Hoseyni Khamenei, President Mahmoud Ahmadinejad, and the Army of the Guardians of the Islamic Revolution (the “Revolutionary Guard“), under the Alien Tort Statute, 28 U.S.C. § 1350, the Torture Victim Protection Act, 28 U.S.C. § 1350 note, and the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602, et seq. The defendants have never appeared in or defended against this action, and the plaintiffs now seek default judgment for the damages caused by the imprisonment, torture, and extrajudicial killing perpetrated by the defendants. For the reasons discussed below, the Court finds that it lacks jurisdiction to grant default judgment against any of the defendants.

I. BACKGROUND

As will be discussed further below, the Court held an evidentiary hearing in this matter on April 4, 2013, at which the plaintiffs presented witnesses, videotape, and other documentary evidence to support their claims. The factual background laid out below summarizes the relevant evidence that the plaintiffs have submitted, both at the evidentiary hearing and through the filing of affidavits and other documentary evidence.

A. Factual Background

The plaintiffs are three siblings of Akbar Mohammadi, who was tortured and killed while in Iranian custody. See Third Am. Compl. (“TAC“) ¶ 2, ECF No. 42. Plaintiffs Nasrin Mohammadi and Simin Taylor are Akbar‘s sisters,¹ and plaintiff Manouchehr Mohammadi is Akbar‘s brother. Id. Although Akbar is also referred to as a plaintiff in the Third Amended Complaint, see id., the plaintiffs clarify that Nasrin represents the estate of Akbar in this action. See Supplemental Legal Mem. on Jurisdiction & Related Issues (“Pls.’ Mem.“) at 4, ECF No. 40.² All

three plaintiffs were born in Iran, though all of them currently reside in California. TAC ¶ 2.

In 1994, Manouchehr and Akbar were college students living in Tehran, where they became involved in political activism. See Aff. of Manouchehr Mohammadi (“Manouchehr Aff.“) ¶¶ 3-4, ECF No. 20-1; Hr‘g Ex. 3 (“Akbar Diary“) at 2-3, ECF No. 20-1.³ During this time, Akbar and Manouchehr organized pro-freedom and pro-democracy political gatherings that were critical of the Iranian government. See Manouchehr Aff. ¶¶ 5-6, 16; see also Tr. of Evidentiary Hr‘g at 30:16-22, 31:15-23 (Apr. 4, 2013), ECF No. 33-1. These political activities drew the attention of the Iranian government, who “considered [them] enemies.” Manouchehr Aff. ¶ 16. As a part of their political activism, Akbar and Manouchehr participated in the student protests in Tehran in July 1999. See id. ¶ 16; see also Howard Schneider & John Lancaster, Violence Rages for 6th Day in Tehran; Police, Vigilantes Disperse Student Demonstrators in Battle over Reform (hereinafter Schneider & Lancaster, Violence Rages), WASH. POST, July 14, 1999, at A1. Those protests, which were “among the largest” since the 1979 revolution, “began in reaction to a violent police raid on a Tehran University dormitory” and “spread quickly to several other cities and broadened into an outcry of frustration with [the Iranian] social and political order.” See Schneider & Lancaster, Violence Rages. The dormitory raid had been “a response to a much smaller student protest of the closing of a liberal newspaper,” but the clashes between students and security forces ultimately left at least two people dead and an unknown number of students in police custody. Id.; see also Howard Schneider & John Lancaster, 100,000 Rally Behind Iran‘s Clerics; Demonstration Counters Week of Protests by Reform-Minded Students, WASH. POST, July 15, 1999, at A19.

On July 15, 1999, Akbar and Manouchehr were arrested by agents of the Iranian Ministry of Information for their role in the protests and were brought to Evin prison, which is located in Tehran. See Manouchehr Aff. ¶ 17; Akbar Diary at 3-5; Aff. of Michael Ledeen (“Ledeen Aff.“) ¶ 6, ECF No. 34-1. While incarcerated at Evin, Akbar and Manouchehr were brutally and repeatedly tortured. See Manouchehr Aff. ¶ 24. The physical torture consisted of, inter alia, flogging the brothers with cables, hanging them from the ceiling by their hands for hours on end, depriving them of sleep, exposing them to the elements in their prison cells, burning their genitals with a cigarette lighter, and beating them to the point of unconsciousness. See, e.g., Akbar Diary at 9-10; Tr. of Evidentiary Hr‘g at 51:2-54:19.⁴ Their torture was also psychological in nature. As Manouchehr testified at the evidentiary hearing, he and Akbar were tortured in front of one another and forced to undergo at least five mock executions and other

threats of execution, which were intended “to break [them] psychologically down.” See Tr. of Evidentiary Hr‘g at 48:18-22, 49:1-13. In moving testimony at the evidentiary hearing, Manouchehr described how this torture has resulted in his permanent physical and psychological damage, including the removal of nine teeth, persistent pain throughout several areas of his body, and a general inability to enjoy life. See id. at 49:25-51:10, 53:22-54:6; Manouchehr Aff. ¶ 49.

The torture described above lasted for over seven years. See Manouchehr Aff. ¶¶ 54-55. In July 2006, Akbar went on a hunger strike—one of several hunger strikes during his imprisonment. See Tr. of Evidentiary Hr‘g at 55:15-56:10; see also TAC ¶ 21; Akbar Diary at 27-30 (describing other hunger strikes). After five days of refusing food in his cell, Akbar was moved to the prison‘s clinic, where he received medical treatment and continued to refuse food for three more days. See Tr. of Evidentiary Hr‘g at 55:15-56:10. During this hunger strike, Akbar was beaten as well. See id. At the evidentiary hearing, Manouchehr recounted that, after this eight-day hunger strike, on July 31, 2006, Akbar died. See id. at 57:8-58:5; TAC ¶ 21. Manouchehr further testified that Akbar was suspected to have been killed by an unspecified type of “dust” sprayed in Akbar‘s hospital room, which “would cause you a heart attack.” See Tr. of Evidentiary Hr‘g at 58:9-59:2. The precise cause of Akbar‘s death was never determined, however. See Manouchehr Aff. ¶ 59. The plaintiffs presented evidence that the arrest, torture, and murder of Akbar were done pursuant to the direct orders of defendants Khamenei and Ahmadinejad. See Aff. of Alan Keyes ¶ 7, ECF No. 34-2 (“[A]ll actions undertaken ... by the Iranian regime, with regard to the arrest, torture, and murder of Iranian dissidents are done under the direct order of the Supreme Leader Ayatollah Ali Khamenei, and Iranian President Mahmoud Ahmadinejad.“); Tr. of Evidentiary Hr‘g at 143:25-144:3 (“[W]hen it comes to important things like killing dissidents, like building nuclear weapons, like sending terrorist teams overseas, they do not freelance. This is done at a very, very high level.“).⁵

After Akbar‘s death, Manouchehr was permitted to leave prison temporarily to attend Akbar‘s funeral. See Manouchehr Aff. ¶¶ 55, 64. While on leave from prison, Manouchehr fled to Iraq, and then crossed the border into Turkey. Id. ¶ 65. While in Turkey, Manouchehr was arrested and threatened with extradition to Iran, but in October 2006 the U.S. State Department intervened and secured Manouchehr‘s safe passage to the United States. See id. ¶¶ 65-66; Supplemental Aff. of Manouchehr Mohammadi (“Manouchehr Supp. Aff.“) ¶ 2, ECF No. 35-2; Tr. of Evidentiary Hr‘g at 42:17-44:2. In addition to the State Department, Manouchehr was aided by journalist Michael Ledeen and former U.S. government official Richard Perle. See Manouchehr Supp. Aff. ¶ 3; Ledeen Aff. ¶ 13. On August 3, 2010, Manouchehr became a permanent resident of the United States. Manouchehr Supp. Aff. ¶ 5.

The evidence submitted by the plaintiffs also reveals that Akbar and Manouchehr were not the only members of the Mohammadi family to be injured by one or more of the defendants or their agents. Nasrin testified at the evidentiary hearing

that an individual she believed to be an agent of the Iranian government attempted to murder her in July 2002 while she was living in Germany. See Tr. of Evidentiary Hr‘g at 89:14-20, 91:16-92:24; Pls.’ Ex. 2, at 2-3 (admitted at evidentiary hearing). Nasrin also testified that she attempted suicide after Akbar‘s death. See Tr. of Evidentiary Hr‘g at 109:17-110:20. Additionally, Simin Taylor averred that she was imprisoned in Iran at some unspecified time prior to October 2006, and while in prison she was threatened with rape. See Taylor Aff. ¶¶ 4, 7. She states that she “continue[s] to suffer from nightmares because of the memories [she has] from prison.” Id. ¶ 11.

Furthermore, Manouchehr and Nasrin testified that they have experienced ongoing harassment from the Iranian regime since relocating to the United States. For example, Manouchehr testified that he has received several threatening telephone calls from individuals in Iran who identify themselves as being a part of the Iranian Ministry of Intelligence. See Tr. of Evidentiary Hr‘g at 79:4-83:17. These phone calls have included threats to Manouchehr‘s life and the lives of his parents, who still live in Iran. See id. Nasrin testified that in 2009 her Facebook account was hacked, and a doctored photograph of her, depicting her in an immodest light, was circulated to her friends and professional acquaintances. See id. at 164:23-166:14. Nasrin also testified that she believes there to be “agents” of the Iranian government living in the United States who are monitoring the plaintiffs’ activities and who “want to hurt ... people or kill people.” See id. at 166:15-167:7.⁶ This was corroborated by the plaintiffs’ expert witnesses. Former CIA Director R. James Woolsey, Jr. testified that agents of the Iranian regime carry out operations to harm Iranians overseas, including in the United States.⁷ See id. at 120:6-25. Additionally, Kenneth R. Timmerman, an author and former Middle East reporter, testified that Iranians living in the Los Angeles area in particular are “under high surveillance by Iranian government agents.” Id. at 127:8-16.⁸

Currently, Nasrin is a United States citizen—a status she obtained on April 22, 2009. See Supp. Aff. of Nasrin Mohammadi (“Nasrin Supp. Aff.“) ¶ 6, ECF No. 35-1. Nasrin first applied for permanent residency in the United States in June 2005, and she received that permanent residency in February 2006. Id. ¶¶ 4-5. Manouchehr applied for permanent residency in October 2006 and was granted permanent resident status on August 3, 2010. See Manouchehr Supp. Aff. ¶¶ 2-3, 5. Ms. Taylor applied for permanent residency on October 1, 2007 and became a United

States citizen on December 15, 2011. See Taylor Aff. ¶¶ 8, 10.

B. Procedural Background

The plaintiffs filed their original Complaint in this action on July 10, 2009. See ECF No. 1.⁹ They filed an Amended Complaint on January 27, 2010. See Am. Compl., ECF No. 5. The previous presiding Judge in this case directed the plaintiffs to file proof of service of the Amended Complaint upon the defendants.¹⁰ See Order dated Aug. 20, 2010, ECF No. 6. Before the Amended Complaint was served, the plaintiffs filed a Second Amended Complaint on September 22, 2010, with the leave of the Court. See Second Am. Compl. (“SAC“), ECF No. 11. Each of the three aforementioned iterations of the plaintiffs’ complaint were pleaded as class actions. The original Complaint and the Amended Complaint were brought on behalf of a class consisting of “all Iranians who have had their civil and human rights violated, been assaulted, battered, tortured, and even murdered to keep a vicious, illegitimate and inhuman radical regime in power.” Compl. ¶ 7; Am. Compl. ¶ 13. The Second Amended Complaint was brought on behalf of a class consisting not only of “Iranians and Iranian-Americans” harmed by the Iranian regime but also “United States servicemen stationed in Iraq, Afghanistan, Pakistan, and elsewhere ... who were murdered or harmed or threatened by or as a direct and proximate result of Defendants’ actions.” SAC ¶¶ 9, 10.

On December 15, 2010, in response to the Court‘s directive, the plaintiffs filed an affidavit from a third party, stating that he had “personally served each and every one of the named defendants by serving the Embassy of Switzerland [in Washington, D.C.], which is the representative of the Islamic Republic of Iran and its government officials and entities with regard to the United States.” See Return of Service at 2, ECF No. 14. Service was performed by hand-delivering summonses and copies of the Amended Complaint to “the document intake person inside the [Washington, D.C.] Embassy.”¹¹ Id. Over nine months later, the plaintiffs filed a motion

Notes

1

Ms. Taylor legally changed her name from Khadijeh Mohammadi to Simin Taylor when she became a United States citizen in December 2011. See Aff. of Simin Taylor (“Taylor Aff.“) ¶¶ 3, 10. “The standards that govern Rule 60(b) are even more restrictive” and “‘in most cases, the bar stands even higher for a party to prevail on a Rule 60(b) motion for relief from judgment’ than on a Rule 59(e) motion.”

Taitz v. Obama, 754 F.Supp.2d 57, 58 (D.D.C. 2010) (quoting

Uberoi v. EEOC, 271 F.Supp.2d 1, 2 (D.D.C.2002)). This is because, as the D.C. Circuit has observed, Rule 60(b) “sets forth a litany of grounds establishing a high bar for modification.”

United States v. Philip Morris USA Inc., 686 F.3d 839, 843 (D.C.Cir.2012). Indeed, the only two provisions of Rule 60(b) that arguably apply in this case are 60(b)(1) and 60(b)(6), which allow relief from a final judgment for “mistake, inadvertence, surprise, or excusable neglect” and “any other reason that justifies relief,” respectively. See FED.R.CIV.P. 60(b). The D.C. Circuit has said that “[r]elief under Rule 60(b)(1) is rare” because that rule “allow[s] district courts to correct only limited types of substantive errors.”

Hall v. CIA, 437 F.3d 94, 99 (D.C.Cir.2006); see also

D.C. Fed‘n of Civic Ass‘ns v. Volpe, 520 F.2d 451, 453 (D.C.Cir.1975) (granting relief under Rule 60(b)(1) where the district court‘s order “was inconsistent with an intervening decision of [the D.C. Circuit]“). Similarly, “the Supreme Court cases have required a movant seeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances justifying the reopening of a final judgment.‘” See

Salazar ex rel. Salazar v. District of Columbia, 633 F.3d 1110, 1116 (D.C.Cir.2011) (internal quotation marks omitted) (quoting

Gonzalez v. Crosby, 545 U.S. 524, 534, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)).

2

A deceased individual cannot serve as the real party in interest in a civil action. See FED.R.CIV.P. 25(a)(1) (“If a party dies and the claim is not extinguished, the court may order substitution of the proper party.“). Although Rule 25 is normally applied when a party dies during the pendency of an action, the Court finds substitution to be appropriate in this case. Therefore, to the extent that Akbar Mohammadi is a named plaintiff, the Court sua sponte substitutes Nasrin Mohammadi, the representative of the estate of Akbar Mohammadi, in the place of Akbar Mohammadi as the proper party in this action. Even if these arguments had not been waived, they would be unpersuasive. In argument (4) above, the plaintiffs contend that the Court should have considered “hostage taking” and “provision of material support and resources” as bases for subject-matter jurisdiction under the state-sponsored terrorism exception of the FSIA, 28 U.S.C. § 1605A. See Pls.’ Recons. Mem. at 28-31. “Hostage taking,” as defined by the FSIA, occurs when a person “seizes or detains and threatens to kill, to injure or to continue to detain another person in order to compel a third party . . . to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage.” See

Price v. Socialist People‘s Libyan Arab Jamahiriya, 294 F.3d 82, 94 (D.C.Cir.2002). The plaintiffs argue that “[d]efendants have essentially taken Plaintiffs’ parents hostage” because “the Iranian regime has seized and detained [them] by barring them from leaving Iran and coming to the United State to visit their children.” Pls.’ Recons. Mem. at 29. Like the plaintiffs’ other expansive interpretations of statutory language, see infra Part III.B, the plaintiffs’ conception of “hostage taking” is far too broad. Although the plaintiffs’ parents may be unable to leave the territory of Iran, that does not make them hostages within the meaning of the FSIA. Equating travel restrictions with “hostage taking” would, for example, render the United States liable as a hostage taker for revoking a citizen‘s passport or placing an individual on a “no fly” list. The plaintiffs cite no legal authority for the broad interpretation they propose, and this Court will not be the first to adopt it. The plaintiffs likewise misperceive the meaning of “provision of material support and resources” in § 1605A. The plaintiffs contend that the defendants have provided material support and resources “in order to perpetrate terrorist threats on Plaintiffs.” Pls.’ Recons. Mem. at 30. The FSIA‘s state-sponsored terrorism exception, however, only waives sovereign immunity when a foreign state causes injuries resulting from “an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.” 28 U.S.C. § 1605A(a)(1) (emphasis added). “[T]errorist threats” are not acts enumerated in the statute, and thus the provision of material support or resources for “terrorist threats” is not a basis for subject-matter jurisdiction under the FSIA. Finally, in argument (6), the plaintiffs contend that, “by ordering the entry of default against Defendants, this Court has recognized its jurisdictional powers over Defendants and, thus, had essentially conceded that subject matter jurisdiction exists and this became law of the case.” See Pls.’ Recons. Mem. at 35. Subject-matter jurisdiction, however, is not something that can be “conceded“—either by the parties or by the actions of the Court. The Federal Rules of Civil Procedure are clear on this point: “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” FED.R.CIV.P. 12(h)(3) (emphasis added). Thus, there is no such thing as law of the case when it comes to subject-matter jurisdiction, and a clerk‘s ministerial entry of default does not confer jurisdiction. In fact, the clerk‘s entry of default in this case was void from its inception as a result of the lack of subject-matter jurisdiction. See

Swarna v. Al-Awadi, 622 F.3d 123, 141 (2d Cir.2010).

3

Exhibit 3 is a diary that was kept by Akbar, which he wrote in 2005 while furloughed from prison on sick leave. See Tr. of Evidentiary Hr‘g at 113:2-4, ECF No. 33-1. That diary was later published in 2012 as book entitled Ideas and Lashes: The Prison Diary of Akbar Mohammadi. A copy of this book was admitted into evidence at the evidentiary hearing. See Exhibit List at 1, ECF No. 31. Although the plaintiffs characterize their abandonment of the FSIA‘s non-commercial tort exception as an “inadvertent[] omi[ssion],” see Pls.’ Recons. Mem. at 12, the persistent absence of that provision from the plaintiffs’ pleadings, arguments, and briefing regarding subject-matter jurisdiction strongly suggests to the Court that the plaintiffs’ abandonment of the non-commercial tort exception was an intentional strategic choice.

4

Akbar‘s diary provides a much more detailed, day-by-day account of the torture that he suffered and the interrogations he underwent. See Akbar Diary at 9-35. Had the plaintiffs relied on the non-commercial tort exception, it may have been a more viable basis for subject-matter jurisdiction. The non-commercial tort exception does not apply to “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion is abused.” 28 U.S.C. § 1605(a)(5). This is commonly known as the discretionary function exception, which operates to bar suit against a foreign sovereign for certain tortious acts. The plaintiffs do not contend that the defendants’ harassing actions were non-discretionary. They contend instead that “illegal acts by foreign sovereigns fall outside the scope of the discretionary function exception.” Pls.’ Recons. Mem. at 13. Thus, whether or not the provision applies in the instant case would depend upon whether the defendants had exceeded the permissible limits of their sovereign political discretion in harassing the plaintiffs via electronic communications while they were living in the United States. Compare

Letelier v. Republic of Chile, 488 F.Supp. 665, 673 (D.D.C.1980) (recognizing that “a decision calculated to result in injury or death to a particular individual or individuals, made for whatever reason, would be one most assuredly involving policy judgment and decision,” but holding that “there is no discretion to commit, or have one‘s officers or agents commit, an illegal act“), with

Risk v. Halvorsen, 936 F.2d 393, 397 (9th Cir.1991) (“[I]t cannot be said that every conceivably illegal act is outside the scope of the discretionary function exception.“). This would have raised unresolved questions regarding the scope of a sovereign foreign state‘s ability to engage in discretionary tortious conduct for political purposes in the United States. The Court need not venture into this legal thicket, however, because, as discussed above, the plaintiffs abandoned the FSIA‘s non-commercial tort exception and have consequently forfeited the chance to raise it as a basis for subject-matter jurisdiction.

5

It is worth noting, however, that Ahmadinejad did not assume the office of the presidency in Iran until August 2005. See, e.g., Nazila Fathi, Iran Tells Europe It‘s Devoted to Nuclear Efforts and Talks, N.Y. TIMES, Aug. 4, 2005, at A10 (reporting that Ahmadinejad‘s presidential inauguration was “set for Saturday[, August 6, 2005]“). The FSIA incorporates the TVPA‘s definition of “torture,” and thus it is the operative definition here. See 28 U.S.C. § 1605A(h)(7).

6

Plaintiffs’ counsel also claims that he has received death threats and suffered a computer hack due to his representation of the plaintiffs in this action. See Aff. of Larry Klayman ¶¶ 2-3, ECF No. 36-1. These two cases include

Asemani v. Islamic Republic of Iran, 266 F.Supp.2d 24 (D.D.C.2003) and

United States v. Morin, 80 F.3d 124 (4th Cir.1996). See Pls.’ Recons. Mem. at 17-19; see also

Mohammadi, 947 F.Supp.2d at 64-66, 2013 WL 2370594, at *9-10 (refusing to follow Asemani and Morin).

7

The Court permitted Mr. Woolsey to provide expert testimony on the subject of “human rights violations done by Iran or organs and instruments of Iran, both domestically and abroad.” See Tr. of Evidentiary Hr‘g at 117:6-16. The Court allowed this testimony because the plaintiffs established that Mr. Woolsey has extensive experience in areas of national security, foreign intelligence, and international relations, including most notably his service as Director of Central Intelligence in the early 1990s. See id. at 115:3-117:5. In fact, in reversing the district court in Lee, the Second Circuit relied on a case cited by this Court in rejecting the plaintiffs’ similar theory in the instant action. See

Lee, 142 Fed.Appx. at 504 (citing

Marquez-Almanzar v. INS, 418 F.3d 210 (2d Cir.2005)); see also

Mohammadi, 947 F.Supp.2d at 65-66, 2013 WL 2370594, at *10 (citing Marquez-Almanzar).

8

The Court permitted Mr. Timmerman to provide both fact and expert testimony about the human rights violations committed against the plaintiffs and how those violations were committed at the direction of defendants Khamenei and Ahmadinejad. His expert testimony was based on his extensive professional expertise as an investigative reporter in the Middle East. See Tr. of Evidentiary Hr‘g at 122:14-126:24.

9

The plaintiffs filed a “Report to the Court Concerning Service of Process” on January 26, 2010, in which they described “serv[ice of] the initial complaint on Defendant Ahmadinejad at a state dinner that he was attending at the Barclay Intercontinental Hotel while he was meeting with the U.N. General Assembly in New York City on September 23, 2009.” See ECF No. 4, at 2. The plaintiffs did not provide any proof that this service took place, such as an affidavit from the individual who performed such service, as required by the Federal Rules. See FED.R.CIV.P. 4(l)(1). At that time, the plaintiffs also stated that the Amended Complaint would “need to be re-served [sic] through diplomatic channels using the Swiss government,” and “Plaintiffs intend to have [t]he translated Amended Complaint delivered to Swiss diplomatic channels in the next ten days.” Pl.‘s Report Concerning Service of Process at 2-3.

10

The current presiding Judge was assigned to this case on January 19, 2011.

11

The affidavit filed by the plaintiffs regarding service of process on the defendants appears not to comply with either the Foreign Sovereign Immunities Act (“FSIA“) or the Federal Rules of Civil Procedure. “There are four methods for serving process upon a foreign state, and they are listed in § 1608(a) in order of descending preference.”

Nikbin v. Islamic Republic of Iran, 471 F.Supp.2d 53, 59 (D.D.C. 2007). The least-favored method of serving a foreign state is service “through diplomatic channels,” which requires the clerk of the court to “send[] [translated versions of] two copies of the summons and complaint and a notice of suit ... to the Secretary of State in Washington, District of Columbia.” 28 U.S.C. § 1608(a)(4). The State Department must then “transmit one copy of the papers through diplomatic channels” and “shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted.” Id. The plaintiffs did not comply with this provi-

for entry of default and for default judgment against the defendants. See Mot. for Entry of Default & Mot. for Default J. (“Default Mem.“), ECF No. 15. The Court granted the plaintiffs’ request regarding the entry of default and directed the Clerk to enter a default against each of the defendants, see Order dated Dec. 8, 2011, ECF No. 16, and the Clerk did so on December 8, 2011, see Default, ECF No. 17. The Court held a status conference on December 16, 2011, at which the Court directed the plaintiffs to submit evidence by way of affidavits to establish the defendants’ liability. See Minute Order dated Dec. 16, 2011. The Court also scheduled an evidentiary hearing to establish damages. See id.

The plaintiffs submitted two affidavits in support of liability on February 9, 2012: one from Manouchehr Mohammadi, and one from Kenneth Timmerman. See Aff. of Manouchehr Mohammadi (Feb. 3, 2012), ECF No. 20-1; Aff. of Kenneth R. Timmerman (Feb. 8, 2012), ECF No. 20-2. On December 14, 2012, the Court held a further status conference with plaintiffs’ counsel to discuss the procedures for submitting further evidence and to clarify the scope and nature of the plaintiffs’ claims. During that status conference, plaintiffs’ counsel indicated to the Court that the plaintiffs intended to abandon their class-action allegations and to proceed only with the Mohammadis as plaintiffs. See Tr. of Status Conference at 4:12-5:8 (Dec. 14,

2012). The Court also set a date for an evidentiary hearing during that December 12, 2012 status conference, for the purpose of receiving any further evidence regarding liability or damages. See Minute Entry dated Dec. 14, 2012.

In preparation for the evidentiary hearing, the Court directed the plaintiffs to file a final witness list and any further affidavits or declarations. See Order dated Mar. 22, 2013, ECF No. 25. The Court also directed the plaintiffs’ counsel to come to the evidentiary hearing prepared to discuss further (1) the scope of the relief sought by the plaintiffs; and (2) the basis for the Court‘s subject-matter jurisdiction over this action. The Court held an evidentiary hearing on April 4, 2013, in which the plaintiffs presented testimony and other evidence to support their claims. Prior to the presentation of evidence, the Court held oral argument with plaintiffs’ counsel regarding the jurisdictional questions raised by the Court‘s April 1, 2013 Order. See Tr. of Evidentiary Hr‘g at 4:5-26:13. After hearing the plaintiffs’ arguments, the Court concluded: “I am not fully persuaded yet that I have either subject matter jurisdiction to hear these claims, nor personal jurisdiction over the two individual officials in order to enter any form of default judgment against any ... of the defendants.” Id. at 26:17-21. The Court further cautioned: “I am going to hear testimony today, but I don‘t want you or your clients to be under any misimpression about my continuing feelings of being quite troubled by the jurisdictional—both sub-ject matter and personal jurisdictional issues raised by the—by these claims.” Id. at 27:6-11; see also id. at 27:14-20 (“Since the plaintiffs have been waiting for some time now to tell their story, to have their claims heard, I‘m not going to deny them that opportunity now, and we‘ll give you sufficient time to try and persuade me of your very creative interpretations of both the ‘torture’ definition and the scope and reach of the FSIA.“).

Following the evidentiary hearing, the Court provided the plaintiffs yet another opportunity to submit further evidence in support of liability or damages, and the Court also permitted the plaintiffs to submit supplemental briefing regarding the subject-matter jurisdiction and personal jurisdiction issues discussed during oral argument. See Minute Order dated Apr. 4, 2013. On April 30, 2013, the plaintiffs filed a motion to amend their Complaint for a third time, see Pls.’ Unopposed Mot. to File Third Am. Compl., ECF No. 39, which the Court granted, see Minute Order dated May 15, 2013. According to the Third Amended Complaint, filed on May 15, 2013, the plaintiffs alleges five claims for relief: (1) engaging in terrorism and/or providing material support to a terrorist organization; (2) assault and battery; (3) intentional infliction of emotional distress; (4) wrongful death; and (5) personal injury and death caused by acts of torture and extrajudicial killing, pursuant to 28 U.S.C. § 1605A. See TAC ¶¶ 29-57. The Third Amended Complaint is not pleaded as a class action, and the only named plaintiffs are Manouchehr Mohammadi, Nasrin Mohammadi, and Simin Mohammadi, on behalf of themselves and on behalf of Akbar Mohammadi. See id. at 1. Currently pending before the Court is the plaintiffs’ motion for default judgment against all defendants. For the reasons discussed below, the Court concludes that it lacks subject-matter jurisdiction over the plaintiffs’ claims.

II. LEGAL STANDARD

A. Subject-Matter Jurisdiction

A federal court has “an affirmative obligation to consider whether the constitutional and statutory authority ex-

ist” for it to hear a case.

James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (internal quotation marks omitted). The proponent of jurisdiction bears the burden of proving that jurisdiction exists.

Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). While “the district court may consider materials outside the pleadings,” it must “still accept all of the factual allegations in the complaint as true.”

Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citations and internal quotation marks omitted). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” FED.R.CIV.P. 12(h)(3).

B. Default Judgment

Under Federal Rule of Civil Procedure 55(b)(2), the Court may consider default judgment when a party applies for that relief. See FED.R.CIV.P. 55(b)(2). “[S]trong policies favor resolution of disputes on their merits,” and therefore “[t]he default judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party.”

Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980) (quoting

H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970)). A default judgment is appropriate when a defendant is “a ‘totally unresponsive’ party and its default plainly willful, reflected by its failure to respond to the summons and complaint, the entry of default, or the motion for default judgment.”

Hanley-Wood LLC v. Hanley Wood LLC, 783 F.Supp.2d 147, 150 (D.D.C. 2011). Where, as here, there is a complete “absence of any request to set aside the default or suggestion by the defendant that it has a meritorious defense, it is clear that the standard for default judgment has been satisfied.”

Int‘l Painters & Allied Trades Indus. Pension Fund v. Auxier Drywall, LLC, 531 F.Supp.2d 56, 57 (D.D.C. 2008).

“[E]ntry of a default judgment is not automatic,” however.

Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005) (footnote omitted). The procedural posture of a default does not relieve a federal court of its “affirmative obligation” to determine whether it has subject-matter jurisdiction over the action. See

Ludwig, 82 F.3d at 1092. Additionally, “a court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant.”

Mwani, 417 F.3d at 6. The party seeking default judgment has the burden of establishing both subject-matter jurisdiction over the claims and personal jurisdiction over the defendants. See, e.g.,

FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir. 2008) (“The plaintiffs have the burden of establishing the court‘s personal jurisdiction over [the defendants].“);

Khadr, 529 F.3d at 1115 (“[T]he party claiming subject matter jurisdiction ... has the burden to demonstrate that it exists.“).

Finally, when default is sought under the FSIA, a claimant must “establish[] his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); see also H.R.Rep. No. 94-1487, at 26 (1976) (stating that § 1608(e) establishes “the same requirement applicable to default judgments against the U.S. Government under rule 55(e), F.R. Civ. P.“). “A flexible approach has been utilized in determining what procedures the court should employ in determining whether Rule 55(d)‘s requirement of evidence satisfactory to the court is fulfilled.”

Jin v. Ministry of State Sec., 557 F.Supp.2d 131, 139 (D.D.C. 2008). “[W]hen it seems advantageous, a court may conduct a hearing

to determine whether to enter a judgment by default.” 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2688 (3d ed. 2013); see also FED.R.CIV.P. 55(b)(2) (“The court may conduct hearings ... when, to enter or effectuate judgment, it needs to ... determine the amount of damages ... establish the truth of any allegations or evidence; or ... investigate any other matter.“).

III. DISCUSSION

As the recitation of the factual background above makes clear, this case involves serious violations of human rights and international law. The entire Mohammadi family has been devastated by the heinous actions of the Iranian regime, and they continue to carry deep emotional and physical scars as a result of those actions. Nevertheless, “‘[f]ederal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by the Constitution and statute.‘”

Gunn v. Minton, — U.S. —, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (quoting

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Although the plaintiffs ask this Court “to make the Mohammadi family whole” and “to send a strong message that these crimes against humanity will not be tolerated by the American system of justice,” see Pls.’ Mem. at 4, this Court may not exceed the limited powers conferred to it by Article III of the Constitution and by Congress. As discussed below, the Court lacks subject-matter jurisdiction over the plaintiffs’ claims in this matter, and therefore the Court does not have the authority to grant the plaintiffs the default judgment that they seek. See, e.g.,

Vizer v. VIZER-NEWS.COM, 869 F.Supp.2d 75, 84 (D.D.C. 2012) (denying default judgment where court lacked jurisdiction).

A. The Court Lacks Subject-Matter Jurisdiction Over Claims Against Iran and the Revolutionary Guard

The Foreign Sovereign Immunities Act (“FSIA“) is “the sole basis for obtaining jurisdiction over a foreign state in our courts.”

Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989); see also 28 U.S.C. § 1604 (“[A] foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of [the FSIA].“);

Price v. Socialist People‘s Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002) (“The [FSIA] ... confers immunity on foreign states in all cases that do not fall into one of its specifically enumerated exceptions.“). The FSIA defines a “foreign state” to include “a political subdivision of a foreign state or an agency or instrumentality of a foreign state.” 28 U.S.C. § 1603(a). In turn, the FSIA defines “agency or instrumentality of a foreign state” as “any entity” (1) “which is a separate legal person, corporate or otherwise, and” (2) “which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof” and (3) “which is neither a citizen of a State of the United States ... nor created under the laws of any third country.” Id. § 1603(b). The Supreme Court has held, however, that the term “agency or instrumentality” in the FSIA does not refer to natural persons, such as individual government officials. See

Samantar v. Yousuf, 560 U.S. 305, 130 S.Ct. 2278, 2286-87, 176 L.Ed.2d 1047 (2010). Therefore, in the instant case the Islamic Republic of Iran and the Revolutionary Guard are considered a “foreign state” under the FSIA, but defendants Khamenei

and Ahmadinejad are not. See id.¹²

The FSIA enumerates six general exceptions to foreign sovereign immunity, see 28 U.S.C. § 1605(a), as well as a seventh specific terrorism exception, see id. § 1605A. The plaintiffs rely on the terrorism exception in alleging subject-matter jurisdiction under the FSIA. See TAC ¶ 10 (“Defendants are subject to suit in the courts of the United States ... because their conduct falls within the exceptions [sic] to foreign sovereign immunity set forth in 28 U.S.C. § 1605A.“).¹³ That portion of the FSIA contains a number of limitations on the scope of the terrorism exception, including, most notably, limitations on (1) the class of persons who may seek relief; and (2) the kinds of actions that allow plaintiffs to pierce the shield of foreign sovereign immunity. In particular, the terrorism exception states:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state 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.

28 U.S.C. § 1605A(a)(1). The statute further limits the scope of a court‘s jurisdiction to hear a claim under the terrorism exception by requiring that: (1) “the foreign state was designated as a state sponsor of terrorism at the time the [torture, extrajudicial killing, aircraft sabotage, or hostage taking] occurred” and “remains so designated;” (2) “the claimant or the victim was, at the time the [torture, extrajudicial killing, aircraft sabotage, or hostage taking] occurred ... a national of the United States;” and (3) “in a case in which the act occurred in the foreign state against which the claim has been brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration.” Id. § 1605A(a)(2)(A). When these three statutory prerequisites for a waiver of foreign sovereign immunity are met, the FSIA terrorism exception provides a private right of action for victims of state-sponsored terrorism. See id. § 1605A(c).

As discussed above, following the refinement of the claims in this case, and upon review of the plaintiffs’ pre-hearing submissions, the Court required oral argument regarding whether the Court has

subject-matter jurisdiction over the plaintiffs’ claims. The Court also permitted the plaintiffs to file further briefing and evidence regarding the basis for the Court‘s subject-matter jurisdiction under the FSIA. See Minute Order dated Apr. 4, 2013; see also Tr. of Evidentiary Hr‘g at 26:14-27:20. In their supplemental briefing, the plaintiffs contend that they satisfy the statutory requirements of 28 U.S.C. § 1605A(a)(2). See Pls.’ Mem. at 17-21. First, the plaintiff argues that “Iran is a state sponsor of terrorism.” Id. at 17. This is unquestionably correct. The Islamic Republic of Iran is designated a “state sponsor of terrorism” and has been since 1984. See U.S. Dep‘t of State, Country Reports on Terrorism 2011 at 171-73 (2012), available at http://www.state.gov/documents/organization/195768.pdf;

Goldberg-Botvin v. Islamic Republic of Iran, No. 12-1292, 938 F.Supp.2d 1, 8, 2013 WL 1343663, at *4 (D.D.C. Apr. 4, 2013) (“Iran has been designated as a state sponsor of terrorism continuously since January 1984 through the present.“).

Where the plaintiffs’ jurisdictional argument falters, however, is with respect to the second requirement listed above, that “the claimant or the victim was, at the time the [torture, extrajudicial killing, aircraft sabotage, or hostage taking] occurred ... a national of the United States.” 28 U.S.C. § 1605A(a)(2)(A)(ii). The plaintiffs argue that they satisfy this requirement by putting forth expansive interpretations of the terms “torture” and “national of the United States.” Both interpretations, however, are contrary to the plain language of the statutory text and the judicial decisions interpreting that language.

1. The Plaintiffs Were Not “Nationals of the United States” at the Time of the Acts Underlying Their Claims.

As to the term “national of the United States,” the plaintiffs contend that Manouchehr, Nasrin, and Akbar “owed their permanent allegiance to the United States and no longer had any loyalty to Iran after the first signs of persecution, including their initial imprisonment. See Pls.’ Mem. at 19; see also Tr. of Evidentiary Hr‘g at 36:6-37:3, 40:5-24, 104:16-105:11. The plaintiffs contend that this qualifies them as “nationals of the United States” because the FSIA incorporates the definition of “national” contained in the Immigration and Nationality Act. See Pls.’ Mem. at 18 (citing 28 U.S.C. § 1605A(g)(5)). That statute defines “national of the United States” as either (1) “a citizen of the United States,” or (2) “a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” 8 U.S.C. § 1101(a)(22) (emphasis added). The plaintiffs rely on the “owes permanent allegiance” language in the immigration statute to contend that their manifestations of allegiance to the United States, and their concomitant severances of allegiance to Iran, were sufficient to qualify them as “nationals of the United States.” See Pls.’ Mem. at 18-20; see also Tr. of Evidentiary Hr‘g at 13:25-14:3 (“[W]e believe that the definition in the [FSIA] can be read more broadly than in the simple context of applying for residency or citizenship in the United States.“).

In support of their argument, the plaintiffs contend that this Court “has expanded the definition [of ‘national of the United States‘] to include those who have taken the steps necessary to become permanent residents or citizens and thus have shown their intention of severing ties with their former countries.” Pls.’ Mem. at 19. To support this proposition, the plaintiffs cite two cases from within this Circuit. The first involved a claim under the FSIA by an individual who alleged that he had been tortured and imprisoned by Iran in July

2000. See

Asemani v. Islamic Republic of Iran, 266 F.Supp.2d 24, 24 (D.D.C. 2003). Before that date, the plaintiff in

Asemani had become a permanent resident of the United States in 1994, and he had applied for United States citizenship in 1999. Id. at 26-27. He had also “pursued his application for citizenship through an interview with an Immigration and Naturalization officer in July 1999.” Id. at 27. The court in

Asemani held that these actions, in particular his application for U.S. citizenship, “demonstrated [the plaintiff‘s] permanent allegiance to the United States sufficient to constitute him a ‘national’ within the meaning of the FSIA.” Id.; see also id. at 26 (“Recent cases, however, suggest that a person may become a ‘national’ of the United States by applying for citizenship.” (collecting cases)).

The other case relied upon by the plaintiffs involved a non-citizen who was serving in the United States Army at the time that he was killed. See

Peterson v. Islamic Republic of Iran, 515 F.Supp.2d 25, 40 n. 4 (D.D.C. 2007).

Peterson was brought under the previous version of the FSIA terrorism exception, before it was amended in 2008. The pre-2008 version of the terrorism exception required either the claimant or the victim to have been a national of the United States “when the act upon which the claim is based occurred.” See 28 U.S.C. § 1605(a)(7)(B)(ii) (2006) (amended 2008). The court in

Peterson observed that the decedent “remained a member of the United States Army in North Carolina from [1980] until his death in Beirut, Lebanon in 1983,” and therefore it was “beyond any doubt that [his] allegiance to the United States was permanent.”

Peterson, 515 F.Supp.2d at 40 n. 4.

The facts of the instant case, however, are distinguishable from the facts at issue in both

Asemani and

Peterson. The plaintiffs in the instant case, unlike the plaintiff in

Asemani, had not applied for or otherwise pursued United States citizenship at the time that the defendants perpetrated the acts of torture and extrajudicial killing that form the basis of the plaintiffs’ FSIA claims. Although Nasrin Mohammadi applied for permanent residency in June 2005 and received permanent residency in February 2006 prior to Akbar‘s death, see Nasrin Supp. Aff. ¶¶ 4-5, permanent residency does not qualify a person as a “national of the United States.” See, e.g.,

Abou-Haidar v. Gonzales, 437 F.3d 206, 207 (1st Cir. 2006) (“[O]ne can become a ‘national’ of the United States only by birth or by naturalization under the process set by Congress.“); see also

Lin v. United States, 561 F.3d 502, 508 (D.C. Cir. 2009) (holding that “manifestations of ‘permanent allegiance’ do not, by themselves, render a person a U.S. national” (citing

Abou-Haidar, 437 F.3d at 207)).¹⁴

Furthermore, more recent case law has rejected the legal foundation of

Asemani‘s holding regarding the definition of “national of the United States.” The federal courts of appeals, including the D.C. Circuit, have unanimously endorsed the proposition that a person may only qualify as a “national of the United States” through birth or completion of the naturalization process.¹⁵ See

Patel v. Napolitano, 706 F.3d 370, 373-77 (4th Cir. 2013);

Lin, 561 F.3d at 508;

Omolo v. Gonzales, 452 F.3d 404, 409 (5th Cir. 2006);

Abou-Haidar, 437 F.3d at 207;

Marquez-Almanzar v. INS, 418 F.3d 210, 218-19 (2d Cir. 2005);

Sebastian-Soler v. U.S. Att‘y Gen., 409 F.3d 1280, 1285 (11th Cir. 2005);

United States v. Jimenez-Alcala, 353 F.3d 858, 861-62 (10th Cir. 2003);

Salim v. Ashcroft, 350 F.3d 307, 310 (3d Cir. 2003);

Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 966-67 (9th Cir. 2003); see also

Miller v. Albright, 523 U.S. 420, 467 n. 2, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (Ginsburg, J., dissenting) (observing that, although “[n]ationality and citizenship are not entirely synonymous ... the only remaining noncitizen nationals are residents of American Samoa and Swains Island“).

Asemani relied upon three circuit court decisions that have either been narrowed or effectively overruled by more recent decisions. See

Asemani, 266 F.Supp.2d at 26 (citing

Hughes v. Ashcroft, 255 F.3d 752 (9th Cir. 2001),

United States v. Morin, 80 F.3d 124, 126 (4th Cir. 1996), and

Oliver v. U.S. Dep‘t of Justice, 517 F.2d 426 (2d Cir. 1975)). Hence, to the extent that

Asemani expanded the definition of “national of the United States” to include those who have merely applied for citizenship, that decision is no longer in accord with the current state of the law. See, e.g.,

Lin, 561 F.3d at 508.

The decision in

Peterson is similarly distinguishable from the instant case. The plaintiffs describe

Peterson as “holding that even a citizen of another country can satisfy the ‘national of the United States’ requirement of FSIA by simply demonstrating his allegiance.” Pls.’ Mem. at 19. That description, however, is misleading and far too broad.

Peterson narrowly held that a member of the U.S. armed forces who was killed while serving abroad qualified as a “national of the United States” under the FSIA. See

Peterson, 515 F.Supp.2d at 40 n. 4. None of the plaintiffs was a member of this country‘s armed forces at the time the defendants perpetrated the alleged acts of torture and extrajudicial killing, and as a result the plaintiffs cannot rely on

Peterson to render them “nationals of the United States.”¹⁶ Furthermore, if there were any ambiguity in

Peterson‘s statement that the decedent‘s membership in the armed forces “establishes beyond any doubt that [his] allegiance to the United States was permanent,” id., the D.C. Circuit has since clarified that “manifestations of ‘permanent allegiance’ do not, by themselves, render a person a U.S. national,”

Lin, 561 F.3d at 508; see also id. (“[A]ttitudes of permanent allegiance do not help Appellants.“). Hence, although some of the plaintiffs may have had attitudes or feelings of “permanent allegiance” prior to 2006, see Pls.’ Mem. at 19-20, those attitudes and feelings do not qualify them as “nationals of the United States.” Accord

In re Navas-Acosta, 23 I. & N. Dec. 586, 587-88 (B.I.A. 2003) (holding that “whether one ‘owes permanent allegiance to the United States’ is not simply a matter of individual choice,” but rather “it reflects a

legal relationship between an individual and a sovereign“).

2. The Acts Underlying the Plaintiffs’ FSIA Claims are Not Ongoing.

The plaintiffs also argue that this Court has jurisdiction over their FSIA claims because, even if the plaintiffs were not nationals of the United States from 1999-2006 when Akbar and Manouchehr were in prison, the “Defendants have continued to harass and torture the Plaintiffs” through the present day. See Pls.’ Mem. at 20 (emphasis added). As discussed above, the FSIA‘s terrorism exception requires either the claimant or the victim to have been, inter alia, a national of the United States “at the time the act described in paragraph (1) occurred.” See 28 U.S.C. § 1605A(a)(2)(A)(ii). Such acts include “torture” and “extrajudicial killing,” which are the only listed acts that could plausibly apply to the facts of this case.¹⁷ Hence, the plaintiffs’ argument is that they continue to be “tortured” by Iran due to the harassment and threats that they have endured since relocating to the United States. See Pls.’ Mem. at 20; see also Tr. of Evidentiary Hr‘g at 5:21-22 (“[T]hey continue to be harassed, in effect, mentally tortured and harmed.“); id. at 16:6-9 (“We would submit that continuing death threats, that you continue to speak out and you will be kidnapped, tortured—killed does fall within that definition of ‘torture.’ “).

The FSIA‘s terrorism exception defines “torture” with reference to the definition of that term contained in section 3 of the Torture Victim Protection Act (“TVPA“). See 28 U.S.C. § 1605A(h)(7). That provision defines torture as:

any act, directed against an individual in the offender‘s custody or physical con-

trol, by which severe pain or suffering ... whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind.

28 U.S.C. § 1350 note, sec. 3(b)(1). The plaintiffs contend that the harassment and threats they have endured fall within this definition of torture because they “feel they cannot escape the ceaseless, barbaric grip of the Defendants.” See Pls.’ Mem. at 20; see also Tr. of Evidentiary Hr‘g at 20:7-21:14. The Court does not doubt that the plaintiffs continue to live in fear of the Iranian government and whatever agents that government may deploy to monitor the plaintiffs’ movements and activities within the United States. The FSIA requires, however, that the plaintiff be “in the offender‘s custody or physical control” at the time the “severe pain or suffering” is inflicted. See 28 U.S.C. § 1350 note, sec. 3(b)(1); id. § 1605A(h)(7). None of the plaintiffs has been in Iran‘s “custody or physical control” since Manouchehr was released from prison in July or August 2006.

Plaintiffs’ counsel has presented creative arguments to get around this statutory requirement by contending at the evidentiary hearing that the defendants’ alleged ongoing monitoring and harassment of the plaintiffs renders them “in effect, still within the custody in a broader sense of this regime, which is threatening to kill

them.” See Tr. of Evidentiary Hr‘g at 20:19-21. That sense of “custody,” however, is far broader than the text of the statute would allow. The plain language of the statute contemplates only physical, as opposed to constructive or psychological, custody or control. See, e.g.,

Murphy v. Islamic Republic of Iran, 740 F.Supp.2d 51, 70-71 (D.D.C.2010) (holding that terrorist bombing was not “torture” under the FSIA because the perpetrators “did not kidnap or imprison the [victims],” but rather “the contact between Iranian agents and the victims in this case was fleeting—only the time it took to drive an explosives-laden truck into a building“). The plaintiffs further cite no authority for the problematic proposition that verbal or electronic harassment can qualify as “torture” under the FSIA, even when such harassment arguably causes severe emotional and psychological damage.¹⁸ The Court thus rejects the plaintiffs’ novel interpretation of the term “torture,” as it is used in the FSIA and defined in the TVPA.

Since neither the claimants nor the non-plaintiff victim (Akbar) were “nationals of the United States” from 1999-2006, during which time the defendants perpetrated the relevant acts of torture and extrajudicial killing, the plaintiffs do not satisfy the jurisdictional requirements of the FSIA‘s terrorism exception. As a result, the Court lacks subject-matter jurisdiction over any claims against the two “foreign state” defendants: the Islamic Republic of Iran and the Revolutionary Guard.¹⁹

B. The Court Lacks Subject-Matter Jurisdiction Over the Plaintiffs’ Alien Tort Statute Claims

In their supplemental briefing, the plaintiffs contend that “[j]urisdiction over claims against Defendants lies in the Alien Tort Claims Act,” see Pls.’ Mem. at 4, also known as the Alien Tort Statute (“ATS“). That statute provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. The Supreme Court has held that the ATS is “strictly jurisdictional . . . in the sense of addressing the power of the [federal] courts to entertain cases concerned with a certain subject.”

Sosa v. Alvarez-Machain, 542 U.S. 692, 713-14, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). More particularly, the ATS “allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.”

Kiobel v. Royal Dutch Petroleum Co., — U.S. —, 133 S.Ct. 1659, 1664, 185 L.Ed.2d 671 (2013).

In

Kiobel, the Supreme Court addressed the question of “whether and under what circumstances courts may recognize a cause of action under the [ATS], for viola-tions of the law of nations occurring within the territory of a sovereign other than the United States.”

Id. at 1662 (majority opinion). After examining the text and “historical background” of the statute, see

id. at 1665-68, the Court held that “the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption,”

id. at 1669. Set against that presumption, the Supreme Court held that the “petitioners’ case seeking relief for violations of the law of nations occurring outside the United States [was] barred.”

Id.

In

Kiobel, the Nigerian petitioners were suing two foreign holding companies under the ATS—Royal Dutch Petroleum Company, incorporated in the Netherlands, and Shell Transport and Trading Company, incorporated in England—as well as their joint subsidiary, Shell Petroleum Development Company (“SPDC“), which was incorporated in Nigeria and engaged in oil exploration and production in a tribal region of Nigeria called Ogoniland. See

id. at 1662. The petitioners were residents of Ogoniland, and they alleged that “after concerned residents of Ogoniland began protesting the environmental effects of SPDC‘s practices, respondents enlisted the Nigerian Government to violently suppress the burgeoning demonstrations.”

Id. In particular, the petitioners claimed that “[t]hroughout the early 1990‘s Nigerian military and police forces attacked Ogoni villages, beating, raping, killing, and arresting residents and destroying or looting property.”

Id.; see also

id. at 1663 (listing allegations of petitioners as including, inter alia, “extrajudicial killings . . . crimes against humanity . . . [and] torture“). Further, the petitioners alleged that the respondent companies “aided and abetted these atrocities by, among other things, providing the Nigerian forces with food, transportation, and compensation, as well as by allowing the Nigerian military to use respondents’ property as a staging ground for attacks.”

Id. at 1662-63.

According to the

Kiobel Court, the petitioners’ claims were predicated entirely on “relevant conduct [that] took place outside the United States.”

Id. at 1669; see also

id. at 1678 (Breyer, J., concurring) (observing that “[t]he plaintiffs are not United States nationals . . . [and] [t]he conduct at issue took place abroad“). Additionally, although both of the corporate defendants were incorporated abroad, they had affiliates located in the United States. See

id. at 1677 (Breyer, J., concurring) (observing that respondents had “an office in New York City . . . owned by a separate but affiliated company“); see also

Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 93 (2d Cir.2000) (stating that

Kiobel respondents “own subsidiary companies that do business in the United States“). The Supreme Court majority, per the opinion of Chief Justice Roberts, held, however, that the petitioners’ claims against these corporate defendants did not “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application,” and therefore those claims did not establish jurisdiction under the ATS. See

Kiobel, 133 S.Ct. at 1669 (majority opinion).²⁰

The Supreme Court in

Kiobel also “le[ft] open a number of significant questions regarding the reach and interpretation of the [ATS].”

Id. (Kennedy, J., concurring); see also

id. at 1669-70 (Alito, J., concurring) (noting the majority‘s “narrow approach,” which “obviously leaves much unanswered“). In particular, the Supreme Court hinted as to what type of conduct occurring entirely abroad might confer jurisdiction under the ATS. As discussed above, Chief Justice Roberts‘s opinion for the majority left open the possibility that conduct that “touch[es] and concern[s] the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application” may confer jurisdiction for ATS claims arising out of conduct occurring abroad.

Id. (majority opinion).²¹ Also, Justice Kennedy implied that certain “serious violations of international law principles protecting persons” may rebut the presumption against extraterritorial application, or at least would “require some further elaboration and explanation” of that presumption in ATS cases. See

id. (Kennedy, J., concurring). Justice Alito, joined by Justice Thomas, wrote that “a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality—and will therefore be barred—unless the domestic conduct is sufficient to violate an international law norm that satisfies

Sosa‘s requirements of definiteness and acceptance.”

Id. at 1670 (Alito, J., concurring); see also

Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (“[F]ederal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted.“). Finally, Justice Breyer‘s concurring opinion, joined by three other Justices, stated that the ATS would provide jurisdiction where, inter alia, “the defendant is an American national” or “the defendant‘s conduct substantially and adversely affects an important American national interest, [including] a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

Id. at 1674 (Breyer, J., concurring); see also

id. (“I would interpret the [ATS] as providing jurisdiction only where distinct American interests are at issue.“).²²

Despite these hints, all nine Justices agreed that jurisdiction was lacking on the facts of

Kiobel itself. Even though the respondents in

Kiobel had American corporate affiliates and allegedly orchestrated and incited heinous actions against the Nigerian petitioners (including extrajudicial killing, torture, and crimes against humanity), the Supreme Court concluded that there was not a sufficient nexus to the territory or interests of the United States to confer ATS jurisdiction.²³ In other words, the Supreme Court appears to have set a very high bar for plaintiffs asserting jurisdiction under the ATS for claims arising out of conduct occurring entirely abroad.²⁴ Hence, although the conduct underlying the plaintiffs’ claims against the Islamic Republic of Iran and the Revolutionary Guard in the instant case are undoubtedly egregious, they do not meet the threshold set out in

Kiobel. In addition, to the extent that the plaintiffs seek to pursue claims under the ATS against defendants Ahmadinejad and Khamenei—the president and Supreme Leader of Iran, respectively—for conduct that occurred entirely within the sovereign territory of Iran, those claims are also barred under the holding of

Kiobel. As a result, the Court does not have subject-matter jurisdiction to hear such claims, and they must be dismissed.

C. Defendants Khamenei and Ahmadinejad Are Not Real Parties in Interest

The foregoing discussion has narrowed the scope of this action considerably. The only claims that arguably remain within the Court‘s subject-matter jurisdiction are the plaintiffs’ claims under the TVPA and the plaintiffs’ common-law tort claims, but only insofar as these claims are pled against the individual defendants Khamenei and Ahmadinejad.²⁵

Although the Court lacks subject-matter jurisdiction over Iran and the Revolutionary Guard, Khamenei and Ahmadinejad are not similarly shielded by foreign sovereign immunity. See

Samantar, 130 S.Ct. at 2283 n. 3 (“[W]e hold that the FSIA does not govern whether an individual foreign official enjoys immunity from suit....“). In

Samantar, the Supreme Court held that the FSIA does not apply to claims brought against individual officials of a foreign sovereign. See

id. Instead, the Court held that common-law foreign sovereign immunity principles should be applied to determine whether a particular official is entitled to immunity. See

id. at 2284, 2289 (“[W]e do not think that the [FSIA] codified the common law with respect to the immunity of individual officials.“); see also

id. at 2292 (“[W]e think this case, in which respondents have sued petitioner in his personal capacity and seek damages from his own pockets, is properly governed by the common law because it is not a claim against a foreign state as the Act defines that term.“).

One of the specific concerns that

Samantar discussed in arriving at this hold-ing was “the risk that plaintiffs may use artful pleading to attempt to select between application of the FSIA or the common law.”

Id. at 2292. The Supreme Court dismissed these concerns by pointing out all of the hurdles faced by plaintiffs seeking to bring claims against individual foreign officials. See

id. One of the hurdles discussed in

Samantar was that “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest.”

Id. In support of this statement, the

Samantar Court cited the statement from

Kentucky v. Graham that “an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.”

473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (citation omitted). The question left open by

Samantar, however, is which category of “actions against an official in his official capacity should be treated as actions against the foreign state itself.” See

Samantar, 130 S.Ct. at 2292. Without attempting to delineate the precise contours of this category of cases, the Court concludes that in this case the foreign state of Iran is the real party in interest, not Khamenei or Ahmadinejad.

The plaintiffs make clear, both in their Third Amended Complaint and in their briefing, that they are suing defendants Khamenei and Ahmadinejad in their official, as opposed to their personal, capacities. See Pls.’ Mem. at 22 (“These officials, acting in their official capacity, authorized the torture and murder of Akbar Mohammadi as well as the torture of his brother Manouchehr.” (emphasis added)); TAC ¶ 55 (“Defendants and their agents were acting within the scope of their office, employment or agency in committing the acts alleged herein, including the planning and torture and murder of the [sic] Akbar Mohammadi and the torture and intimidation his family suffered and continues to endure in the United States.” (emphasis added)). It is apparent that the plaintiffs’ theory of this case is that any actions taken by Khamenei and Ahmadinejad‘s were actions of the Iranian “regime.” See, e.g., TAC ¶ 128 (“This was an effort by the Defendants to destroy a family and let everyone else know that torture, infliction of severe physical and mental pain, and death are imminent realities to all those who fight against [Iran‘s] tyrannical regime.“); see also Pls.’ Mem. at 7-12 (contending that this Court has personal jurisdiction over Khamenei and Ahmadinejad as a result of “the regime[‘s]” contacts with the United States). This theory also fits with the nature of the allegations in this case, which are essentially that Akbar and Manouchehr were imprisoned, tortured, and in Akbar‘s case killed through state actions performed at the direction of Khamenei and Ahmadinejad. See, e.g., TAC ¶ 123 (“The prison guards and other agents of the government acted on direct orders from the Defendants and carried out their official policies of repression, brutality, torture, intimidation, and murder upon those they deemed enemies of their tyrannical government.“). As a result, the Court concludes that the Islamic Republic of Iran is the “real party in interest” in this action, and therefore the claims pled against defendants Khamenei and Ahmadinejad will be treated as claims against Iran itself. See

Samantar, 130 S.Ct. at 2292;

Graham, 473 U.S. at 166, 105 S.Ct. 3099; accord

Odhiambo v. Republic of Kenya, 930 F.Supp.2d 17, 34 (D.D.C.2013) (dismissing claims against individual defendants where “the suit [was] in all respects a suit against the Kenyan government“).

The necessary result of this conclusion is that all of the plaintiffs’ claims must be dismissed for lack of subject-matter jurisdiction because the plaintiffs cannot demonstrate that any of the enumerated exceptions to immunity contained in the FSIA apply to this case. See supra Part III.A.²⁶

IV. CONCLUSION

For the reasons discussed above, the Court concludes that it lacks subject-matter jurisdiction over the plaintiffs’ claims, and as a result the Court must dismiss this case for lack of jurisdiction.

An appropriate Order accompanies this Memorandum Opinion.

MEMORANDUM OPINION

Pending before the Court is the plaintiffs’ motion for reconsideration regarding the Court‘s decision dismissing this case for lack of subject-matter jurisdiction. Also pending before the Court is the plaintiffs’ related motion for leave to file a fourth amended complaint. In their motion for reconsideration, the plaintiffs vociferously contend that this Court has committed clear error in analyzing the bounds of its jurisdiction. The plaintiffs are also convinced that, unless this Court “find[s] a legal basis to side with the victims,” the result will be “the general collapse of the judicial institution” and “would lead many to question this government‘s true devotion to safeguarding basic human rights.” See Pls.’ Mot. Recons. (“Pls.’ Recons. Mem.“) at 2-3, ECF No. 45. The plaintiffs argue that “this Court must not and cannot forsake the issue of human rights and crimes against humanity by dismissing this case . . . as a result of a minor and unjustifiable ‘technicality.‘”

Id. at 3.

That the plaintiffs invoke platitudes of the rule of law as the basis for their motion, however, is deeply ironic. Indeed, their characterization of this Court‘s jurisdiction as a “technicality,” see Pls.’ Recons. Mem. at 3, is at odds with the very notion of legitimate, democratic governance that they purport to vindicate. “Federal courts cannot reach out to award remedies when the Constitution or laws of the United States do not support a cause of action.”

Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 74, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). The limitations on the jurisdiction of federal courts “are an essential ingredient of separation and equilibration of powers” in our system of government, and those limitations cannot be brushed aside as mere technicalities. See

Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

Our Founders conceived of the judicial branch “to have neither FORCE nor WILL, but merely judgment,” such that the courts do not “on the pretense of a repugnancy . . . substitute their own pleasure to the constitutional intentions of the legislature.” THE FEDERALIST NO. 78 (Alexander Hamilton). Thus, “the authority of the judicial department” under the Constitution was “carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature.” THE FEDERALIST NO. 81 (Alexander Hamilton). “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” THE FEDERALIST NO. 78 (Alexander Hamilton). This properly limited role for the judiciary is anchored by the separation of powers. As Hamilton observed at the time of the Founding, “liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from [the judiciary‘s] union with either of the other departments.”

Id. Hence, the separation of powers, embodied by the creation of courts of limited jurisdiction, is what imbues our government with its legitimacy and enduring stability. It is not the province of this Court (or any court) to upset that constitutional scheme. For the reasons discussed below, the Court denies the plaintiffs’ motions.

I. BACKGROUND

The Court has previously discussed the factual background of this case in its previous memorandum opinion, which the Court incorporates fully here. See

Mohammadi v. Islamic Republic of Iran, No. 09-1289, 947 F.Supp.2d 48, 54-59, 2013 WL 2370594, at *1-4 (D.D.C. May 31, 2013). Prior to issuing its memorandum opinion dismissing this case, the Court provided the plaintiffs with numerous opportunities to establish the subject-matter jurisdiction of the Court. First, the Court alerted plaintiffs’ counsel, prior to the evidentiary hearing held on April 4, 2013, that counsel would be asked to address the basis of the Court‘s subject-matter jurisdiction, including specifically “whether [28 U.S.C. §§ 1605(a)(5) and 1605(a)(7)] purport to apply to all defendants or only defendants Ahmadinejad and Khamenei,” and “whether the plaintiffs satisfy the statutory requirements for jurisdiction outlined in the [Foreign Sovereign Immunities Act].” See Order dated Apr. 1, 2013, ECF No. 28. Next, the Court provided plaintiffs’ counsel with a full opportunity to assert bases for the jurisdiction of this Court at oral argument prior to the evidentiary hearing. See Tr. of Evidentiary Hr‘g at 4:5-26:13 (Apr. 4, 2013), ECF No. 47. Finally, the Court provided the plaintiffs nearly a month after the evidentiary hearing concluded to file “any further submissions related to the Court‘s subject-matter jurisdiction over this action, the Court‘s personal jurisdiction over the defendants, the liability of the defendants, or the damages sought by the plaintiffs.” See Minute Order dated Apr. 15, 2013. The plaintiffs accordingly filed several memoranda following the evidentiary hearing, including a twenty-two page legal memorandum purportedly “demonstrating jurisdiction over the Defendants in the above styled case.” See Supp. Legal Mem. on Jurisdiction & Related Issues (“Pls.’ Jurisdiction Mem.“) at 1, ECF No. 40.

Based on this memorandum, the evidence and argument presented at the evidentiary hearing, and the allegations of the operative complaint (the Third Amended Complaint, ECF No. 42), the Court held in its May 31, 2013 memorandum opinion that it lacked subject-matter jurisdiction to grant the plaintiffs the relief that they sought against the defendants because the defendants are shielded by sovereign immunity against the plaintiffs’ claims. See, e.g.,

Mohammadi, 947 F.Supp.2d at 62, 2013 WL 2370594, at *7 (“[T]he Court lacks subject-matter jurisdiction over the plaintiffs’ claims in this matter, and therefore the Court does not have the authority to grant the plaintiffs the default judgment that they seek.“). That holding was premised on several legal conclusions.

First, the Court held that the plaintiffs had not established that defendants Iran and the Revolutionary Guard—which are “foreign states” under the Foreign Sovereign Immunities Act (“FSIA“)—were subject to suit under the state-sponsored terrorism exception to immunity, as codified in the FSIA, 28 U.S.C. § 1605A. See

id. at 68-69, at *13. That conclusion was based on the fact that (1) none of the plaintiffs were “nationals of the United States” at the time that the alleged acts of terrorism (i.e., torture and extrajudicial killing) were carried out; and (2) the acts of torture and extrajudicial killing were not ongoing, but instead were limited in time to the torture and extrajudicial killing that took place in Tehran between 1999 and 2006. See

id. at 64-69, at *9-13. Second, the Court held that it lacked subject-matter jurisdiction over the plaintiffs’ Alien Tort Statute (“ATS“) claims under the Supreme Court‘s recent interpretation of that statute in

Kiobel v. Royal Dutch Petroleum Co., — U.S. —, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). See

Mohammadi, 947 F.Supp.2d at 68-72, 2013 WL 2370594, at *13-15. Third, the Court held that, since the plaintiffs only alleged official-capacity claims against defendants Ayatollah Sayid Ali Hoseyni Khamenei and Mahmoud Ahmadinejad, under well-established legal principles, those claims were against Iran itself, and thus were likewise barred by sovereign immunity. See

id. at 70-74, at *15-16. Finally, the Court discussed at length its serious doubts about whether it could exercise personal jurisdiction over any of the defendants—both because they lacked minimum contacts with the United States and because service of process was likely insufficient. See

id. at 55 n. 11, at *4 n. 11;

id. at 73-74 n. 26, at *16 n. 26. The Court did not hold that it lacked personal jurisdiction, since the case was dismissed on alternative jurisdictional grounds, see

id. at 73-74 n. 26, at *16 n. 26, but it was clear from the Court‘s opinion that the plaintiffs had failed in several respects to establish the requisite basis for personal jurisdiction.

On June 17, 2013, the plaintiffs filed a motion for reconsideration of the Court‘s decision under Federal Rules of Civil Procedure 59(e) and 60(b). See Pls.’ Recons. Mem. at 11. That same day, the plaintiffs also filed a motion for leave to file a fourth amended complaint, which sought to add to the complaint “additional facts regarding Plaintiffs’ citizenship and permanent resident status” and to “conform [] to jurisdictional provisions pled in Plaintiffs’ prior complaints that provide this Court with subject matter jurisdiction, including subject matter jurisdiction pursuant to 28 U.S.C. § 1605(a)(5).” Pls.’ Mot. to File Fourth Am. Compl. at 2, ECF No. 46.

II. LEGAL STANDARDS

A. Motions to Alter or Amend a Judgment

“As a general matter, courts treat a motion for reconsideration as originating under Rule 59(e) if it is filed within 28 days of the entry of the order at issue and as originating under Rule 60(b) if filed thereafter.”

Owen-Williams v. BB & T Inv. Servs., Inc., 797 F.Supp.2d 118, 121-22 (D.D.C.2011) (footnote omitted).¹ Re-consideration of a final judgment is “an extraordinary remedy which should be used sparingly.”

United States v. Philip Morris Inc., 130 F.Supp.2d 96, 99 (D.D.C.2001). ”Rule 59(e) permits a court to alter or amend a judgment, but it ‘may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.‘”

Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n. 5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (citation omitted). This is because ”Rule 59(e) motions are aimed at reconsideration, not initial consideration.”

GSS Grp. Ltd v. Nat‘l Port Auth., 680 F.3d 805, 812 (D.C.Cir.2012) (quoting

District of Columbia v. Doe, 611 F.3d 888, 896 (D.C.Cir.2010)).

“It is well settled that an issue presented for the first time in a motion pursuant to Federal Rule of Civil Procedure 59(e) generally is not timely raised; accordingly, such an issue is not preserved for appellate review unless the district court exercises its discretion to excuse the party‘s lack of timeliness and consider the issue.”

Doe, 611 F.3d at 896 (internal quotation marks omitted); accord

GSS Group, 680 F.3d at 812 (holding that arguments raised for the first time on a Rule 59(e) motion “are waived“);

Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C.Cir.2012) (”Rule 59(e) is not a vehicle to present a new legal theory that was available prior to judgment....“). “A district court,” however, “does not open the door to further consideration of a forfeited claim by giving an alternative, merits-based reason for rejecting it.”

GSS Group, 680 F.3d at 813. A Rule 59(e) motion is not “a chance for [a party] to correct poor strategic choices,”

SEC v. Bilzerian, 729 F.Supp.2d 9, 15 (D.D.C.2010), nor are such motions to be used by litigants “to cry over spilled milk,”

Bond v. U.S. Dept. of Justice, 286 F.R.D. 16, 17 (D.D.C.2012). “The strictness with which such motions are viewed is justified by the need to protect both the integrity of the adversarial process in which parties are expected to bring all arguments before the court, and the ability of the parties and others to rely on the finality of judgments.”

CFTC v. McGraw-Hill Cos., 403 F.Supp.2d 34, 36 (D.D.C.2005); accord

Silk v. Sandoval, 435 F.2d 1266, 1268 (1st Cir.1971) (acknowledging “the complementary interest in speedy disposition and finality, clearly intended by Rule 59“).

There are, however, extraordinary circumstances in which granting a Rule 59(e) motion is warranted. As the D.C. Circuit has repeatedly held, “[a] Rule 59(e) motion . . . need not be granted unless the district court finds that there is [1] an intervening change of controlling law, [2] the availability of new evidence, or [3] the need to correct a clear error or prevent manifest injustice.”

Ciralsky v. CIA, 355 F.3d 661, 671 (D.C.Cir.2004) (quoting

Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996)). “Although Courts have not generally defined what constitutes ‘clear error’ under Rule 59(e), . . . clear error should conform to a ‘very exacting standard.‘”

Bond, 286 F.R.D. at 22 (citation omitted) (quoting

Lightfoot v. District of Columbia, 355 F.Supp.2d 414, 422 (D.D.C.2005)). “[A] final judgment must be ‘dead wrong’ to constitute clear error.”

Lardner v. FBI, 875 F.Supp.2d 49, 53 (D.D.C.2012) (quoting

Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir.1988)). Indeed, the Seventh Circuit has vividly observed that “[t]o be clearly erroneous, a decision must strike [a court] as more than just maybe or probably wrong; it must . . . strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish.”

Parts & Electric Motors, 866 F.2d at 233. Hence, a fortiori, “[m]ere disagreement does not support a Rule 59(e) motion.”

United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir.2002) (quoting

Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir.1993)).

Similarly, although “[t]he term ‘manifest injustice’ eludes precise definition,”

Roane v. Gonzales, 832 F.Supp.2d 61, 64 (D.D.C.2011), it is clear that “manifest injustice” is an exceptionally narrow concept in the context of a Rule 59(e) motion. The D.C. Circuit has observed that, under Rule 59(e), “manifest injustice does not exist where . . . a party could have easily avoided the outcome, but instead elected not to act until after a final order had been entered.”

Ciralsky, 355 F.3d at 665 (internal quotation marks omitted). In a slightly different context, the Circuit has said that manifest injustice arises from “rulings that upset settled expectations—expectations on which a party might reasonably place reliance.”

Qwest Servs. Corp. v. FCC, 509 F.3d 531, 540 (D.C.Cir.2007). These cases make clear that a manifest injustice does not result merely because a harm may go unremedied. Accord

Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 536, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (“[T]he judicial remedy cannot encompass every conceivable harm that can be traced to alleged wrongdoing.“). Synthesizing these precedents with the phrase‘s plain language, “manifest injustice” must entail at least (1) a clear and certain prejudice to the moving party that (2) is fundamentally unfair in light of governing law.

B. Amending a Complaint After Final Judgment

Federal Rule of Civil Procedure 15 provides that, if more than twenty-one days have passed since the filing of an original complaint, “a party may amend its [complaint] only with the opposing party‘s written consent or the court‘s leave.” FED.R.CIV.P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. The D.C. Circuit has held, however, that “once a final judgment has been entered, a court cannot permit an amendment unless the plaintiff ‘first satisfies Rule 59(e)‘s more stringent standard’ for setting aside the judgment.”

Ciralsky, 355 F.3d at 673 (quoting

Firestone, 76 F.3d at 1208). Therefore, if a motion to amend a complaint is not filed until after a final judgment, that motion becomes moot if the Court denies the accompanying Rule 59(e) motion. See

id.; accord

Firestone, 76 F.3d at 1208 (observing that amendment of complaint may only occur after final judgment “once the court has vacated the judgment,” and “to vacate the judgment, Appellants must first satisfy Rule 59(e)‘s more stringent standard“).

III. DISCUSSION

Here, the plaintiffs present six grounds for the Court to alter or amend its prior judgment dismissing this action: (1) the Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1605(a)(5)—a jurisdictional basis that the plaintiffs claim was “inadvertently omitted from their Third Amended Complaint;” (2) “[t]his Court erred in determining that constructive custody cannot satisfy the ‘custody or physical control’ requirement” contained in the statutory definition of torture; (3) “[t]his Court erred in determining that Plaintiffs were not ‘nationals’ of the U.S.” at the time the acts of torture and extrajudicial killing were carried out against the plaintiffs; (4) “[t]he Court improperly determined that the only acts listed under 28 U.S.C. § 1605A that could plausibly apply to the facts of this case were ‘torture’ and ‘extrajudicial killing;‘” (5) “[t]his Court erred in finding that it lacked subject matter jurisdiction under the [ATS];” and (6) “[b]oth the Court and the Defendants conceded subject matter jurisdiction as the law of the case when this Court entered a default against Defendants.” See Pls.’ Recons. Mem. at 3, 28. Each of these arguments is addressed below.

A. The Plaintiffs Have Forfeited Certain Arguments.

At the outset, arguments (4) and (6) above have never been raised by the plaintiffs until now,² and argument (1) above was never raised in the Third Amended Complaint, at the evidentiary hearing, or in the plaintiffs’ briefing regarding subject-matter jurisdiction. As a result, the plaintiffs have waived these arguments. See, e.g.,

GSS Group, 680 F.3d at 812. With respect to argument (1) above, the plaintiffs pleaded 28 U.S.C. § 1605(a)(5)—also known as the FSIA‘s “noncommercial tort exception” to foreign sovereign immunity—as a basis for subject-matter jurisdiction in previous iterations of their complaint. See Second Am. Compl. ¶ 13, ECF No. 11; Am. Compl. ¶ 9, ECF No. 5; Compl. ¶ 9, ECF No. 1. The plaintiffs, however, amended their complaint following the evidentiary hearing “to conform with the supplemental evidence obtained during the [evidentiary hearing]” and to “focus[] on the material facts and legal vehicles that are now part of this cause.” See Pls.’ Mot. to File Third Am. Compl. at 2, ECF No. 39. In the Third Amended Complaint, the plaintiffs removed their class-action allegations, and also removed 28 U.S.C. §§ 1605(a)(5) and 1605(a)(7) as bases for subject-matter jurisdiction. In the Third Amended Complaint, the only provision of the FSIA cited is 28 U.S.C. § 1605A—the so-called state-sponsored terrorism exception. See Third Am. Compl. ¶¶ 10, 55, 57. Likewise, when the Court permitted the plaintiffs to submit briefing on the basis for the Court‘s subject-matter jurisdiction, the only provision of the FSIA cited or discussed in that briefing was 28 U.S.C. § 1605A. See Pls.’ Jurisdiction Mem. at 17-21.

The plaintiffs now assert, for the first time, that ”28 U.S.C. § 1605(a)(5) was inadvertently omitted from the Third Amended Complaint.” See Pls.’ Recons. Mem. at 12. They thus contend, “given the honest mistake on the part of Plaintiffs . . . consideration of the [sic] 28 U.S.C. § 1605(a)(5) as [a] jurisdictional basis should not be precluded.”

Id. at 13. The Court disagrees. As is apparent from the filing of four complaints in this case, the facts and legal theories underlying the plaintiffs’ claims have shifted and transformed as the litigation has progressed. When the plaintiffs sought leave to file their Third Amended Complaint, they represented to the Court that the Third Amended Complaint was filed “to conform with the supplemental evidence obtained during the [evidentiary hearing]” and to “focus[] on the material facts and legal vehicles that are now part of this cause.” See Pls.’ Mot. to File Third Am. Compl. at 2.

The Court took the plaintiffs at their word, and thus did not consider any legal theories omitted from the Third Amended Complaint—including the plaintiffs’ class-action allegations and the FSIA‘s noncommercial tort exception. The abandonment of the noncommercial tort exception was highlighted further by the plaintiffs’ failure even to mention 28 U.S.C. § 1605(a)(5) at oral argument regarding subject-matter jurisdiction or in their subsequent, extensive briefing on subject-matter jurisdiction. See generally Pls.’ Jurisdiction Mem.; Tr. of Evidentiary Hr‘g at 4:5-26:13.³ In light of these developments, the Court properly looked to the Third Amended Complaint to determine its jurisdiction, see

Rockwell Int‘l Corp. v. United States, 549 U.S. 457, 473-74, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007) (“[W]hen a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction.“), and thus did not consider 28 U.S.C. § 1605(a)(5).

It was the plaintiffs’ burden to establish that subject-matter jurisdiction exists, see, e.g.,

Khadr v. United States, 529 F.3d 1112, 1115 (D.C.Cir.2008), not the Court‘s. The plaintiffs were afforded multiple chances to satisfy that burden, and after presenting all of their legal theories, the Court concluded that the plaintiffs came up short. The plaintiffs clearly perceive the Court‘s non-reliance on the non-commercial tort exception as a “manifest injustice,” see Pls.’ Recons. Mem. at 13, but if there is any prejudice to the plaintiffs, that prejudice was self-inflicted, and the D.C. Circuit has made clear that self-inflicted prejudice does not qualify as manifest injustice. See

Ciralsky, 355 F.3d at 665 (“[M]anifest injustice does not exist where . . . a party could have easily avoided the outcome, but instead elected not to act until after a final order had been entered.” (internal quotation marks omitted)). The plaintiffs placed all of their jurisdictional eggs in one basket, despite the Court‘s multiple invitations to address other jurisdictional bases, and a Rule 59(e) motion is not the vehicle for the plaintiffs to resurrect abandoned legal theories after final judgment. See, e.g.,

Bilzerian, 729 F.Supp.2d at 15 (observing that Rule 59(e) is not “a chance for [a party] to correct poor strategic choices“).⁴

B. The Plaintiffs’ Remaining Arguments Do Not Establish Clear Error or Manifest Injustice.

Since arguments (1), (4), and (6) above were forfeited by the plaintiffs’ failure to raise them, the Court must consider whether the plaintiffs’ remaining arguments are grounds for altering or amending the final judgment in this case. As discussed above, there are only three narrow circumstances in which alteration or amendment to a final judgment is appropriate: (1) “an intervening change of controlling law,” (2) “the availability of new evidence,” or (3) “the need to correct a clear error or prevent manifest injustice.”

Ciralsky, 355 F.3d at 671 (internal quotation mark omitted). The plaintiffs do not assert any intervening change in controlling law, and they also do not present any new evidence. Therefore, the Court must decide whether the plaintiffs have established any “need to correct a clear error or prevent manifest injustice.”

Id.

First, in argument (2) above, the plaintiffs contend that “[t]his Court erred in determining that constructive custody cannot satisfy the ‘custody or physical control’ requirement” contained in the statutory definition of torture. See Pls.’ Recons. Mem. at 3. As discussed in the Court‘s previous opinion, the definition of “torture” incorporated in the FSIA requires that the relevant act be “directed against an individual in the offender‘s custody or physical control.” See

Mohammadi, 947 F.Supp.2d at 67, 2013 WL 2370594, at *12 (quoting 28 U.S.C. § 1350 note, sec. 3(b)(1)). The same creative theory of constructive custody raised by the plaintiffs in their Motion for Reconsideration was previously raised by the plaintiffs at the evidentiary hearing and in the plaintiffs’ jurisdictional memorandum, see Pls.’ Jurisdiction Mem. at 20; Tr. of Evidentiary Hr‘g at 20:14-21:14, and the theory was also flatly rejected by the Court, see

Mohammadi, 947 F.Supp.2d at 66-69, 2013 WL 2370594, at *11-13. In their motion for reconsideration, the plaintiffs continue to rehash the same arguments that were previously rejected, including that “in light of modern technological advancements,” a “defendant does not need to be physically present to have ‘custody’ or ‘control’ over an individual.” See Pls.’ Recons. Mem. at 25.

The only new legal authority cited by the plaintiff to establish clear error with respect to the “custody” issue is a district court case from the District of Massachusetts, which applied the Torture Victim Protection Act‘s (“TVPA“) definition of torture⁵ to find the former Guatemalan Minister of Defense liable for torture. See

Xuncax v. Gramajo, 886 F.Supp. 162, 178 (D.Mass.1995). In that case, an Ursuline nun, who was a U.S. citizen, “was kidnapped, tortured and subjected to sexual abuse in Guatemala by personnel under [the Guatemalan Defense Minister‘s] command.” See

id. at 173. Specifically, the plaintiff in that case was abducted at gunpoint and taken captive in a warehouse, wherein she “was subjected to horrific treatment,” which included burning her with cigarettes, beating her, and repeatedly raping her. See

id. at 173-74. The issue of “custody” arose because, as the court noted, “it may be argued that [the plaintiff] was never in [the Defense Minister‘s] personal custody.”

Id. at 178 n. 15. The court concluded that the plaintiff was “in the defendant‘s ‘custody’ for purposes of TVPA liability, given that the defendant had authority and discretion to order that [the plaintiff] be released.”

Id.

Xuncax clearly involved a situation where the victim of torture was within someone‘s physical custody, and thus it does not stand for the proposition that mere constructive custody is sufficient to establish “torture.”

Xuncax more accurately stands for the proposition that higher-level officials can be found liable for torture under the TVPA (and thus the FSIA) if they send their agents to torture an individual, rather than personally carrying out the torture. As a result,

Xuncax is of no help to the plaintiffs in establishing clear error in this case.

In argument (3) above, the plaintiffs argue that “[t]his Court erred in determining that Plaintiffs were not ‘nationals’ of the U.S.” at the time the acts of torture and extrajudicial killing were carried out against the plaintiffs. See Pls.’ Recons. Mem. at 3. This argument has also already been raised by the plaintiffs and rejected by the Court. See

Mohammadi, 947 F.Supp.2d at 64-66, 2013 WL 2370594, at *9-11. In their motion for reconsideration, the plaintiffs grasp at every last straw in an attempt to demonstrate clear error on this issue, but their arguments are all unpersuasive. The plaintiffs rely on a historical notion of the term “national” from the nineteenth century, they cite and discuss several cases that the Court specifically rejected, and they assert that the Immigration and Nationality Act‘s (“INA‘s“) definition of “national” “should be read in accordance with general international law principles regarding nationality.” See Pls.’ Recons. Mem. at 16-20.

The historical notion of the term “national” relied upon by the plaintiffs, which they contend permits them to establish nationality through “acts of allegiance” is anachronistic and no longer has any force, particularly when that historical conception of nationality preceded the INA, which is the operative statutory provision defining nationality in the instant case. The Court need not even discuss the plaintiffs’ reliance on case law that the Court specifically discussed and rejected,⁶ other than to point out that the only case cited by the plaintiffs that the Court has not previously addressed,

Lee v. Ashcroft, 216 F.Supp.2d 51 (E.D.N.Y.2002), was reversed by the Second Circuit on the very point for which it is cited by the plaintiffs. See

Lee v. Ashcroft, 142 Fed.Appx. 503, 504 (2d Cir.2005) (“[W]e reject the argument . . . relied on by the district court in granting [the plaintiff‘s] petition, that an individual can become a noncitizen national . . . by demonstrating permanent allegiance to the United States.“).⁷ Finally, although the plaintiffs invite the Court to interpret the INA “in accordance with general international law principles regarding nationality,” see Pls.’ Recons. Mem. at 19, the Court rejects that invitation. The Court has an obligation to interpret federal law in accordance with the decisions of federal courts. As the Court previously observed, “[t]he federal courts of appeals, including the D.C. Circuit, have unanimously endorsed the proposition that a person may only qualify as a ‘national of the United States’ through birth or com-pletion of the naturalization process.”

Mohammadi, 947 F.Supp.2d at 65, 2013 WL 2370594, at *10 (collecting cases).

Finally, in argument (5), the plaintiffs contend that “[t]his Court erred in finding that it lacked subject matter jurisdiction under the [Alien Tort Statute].” Pls.’ Recons. Mem. at 3. This argument stems from the plaintiffs’ disagreement with the Court‘s interpretation of the Supreme Court‘s recent decision in

Kiobel v. Royal Dutch Petroleum Co., — U.S. —, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). See Pls.’ Recons. Mem. at 31-34. In this regard, the plaintiffs argue that “the factual circumstances behind the torts claimed in this case are easily distinguishable from the circumstances at issue in

Kiobel.”

Id. at 33. The plaintiffs’ disagreement with the Court‘s application of

Kiobel, however, does not constitute clear error. See, e.g.,

Becker, 305 F.3d at 290 (“‘Mere disagreement does not support a Rule 59(e) motion.‘“). The plaintiffs are free to pursue that disagreement on appeal. Moreover, even had the Court erred in applying

Kiobel, it would be harmless error. Jurisdiction under the ATS would not cure the fact that the defendants are shielded from suit by sovereign immunity because the ATS is not an exception to foreign sovereign immunity. Thus, even if the ATS were a colorable basis to bring suit, it would not confer subject-matter jurisdiction in this case.

IV. CONCLUSION

The Supreme Court has long recognized that “[t]here must be an end to litigation someday.”

Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 95 L.Ed. 207 (1950). The instant case is no exception. The Court acknowledges the persistence and creativity of plaintiffs’ counsel in attempting to save this case from dismissal—even after final judgment—but the Court finds those efforts unpersuasive. The extraordinary remedy of altering or amending a final judgment is reserved for a narrow set of circumstances, none of which is presented here. The Court denies the plaintiffs’ motion for reconsideration and also denies the plaintiffs’ motion to amend as moot. See

Ciralsky, 355 F.3d at 673.

An appropriate Order accompanies this Memorandum Opinion.

JOHN D. BATES

UNITED STATES DISTRICT JUDGE

May 31, 2013.

12

It is unclear whether the Revolutionary Guard should be considered a “foreign state” or an “agency or instrumentality” thereof. Compare

Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 180 (D.D.C. 2010) (finding the Revolutionary Guard to be “an instrumentality of Iran that acts as a military arm of the government“), with

Salazar v. Islamic Republic of Iran, 370 F.Supp.2d 105, 116-17 (D.D.C. 2005) (finding core function of Revolutionary Guard to be governmental). This distinction, however, is immaterial in the instant case because the Court dismisses the claims against the Revolutionary Guard on immunity grounds. See

Nikbin, 471 F.Supp.2d at 64 (“[T]he immunity provisions of the FSIA do not distinguish between agencies and instrumentalities and the state itself.“).

13

In previous iterations of their Complaint, the plaintiffs also relied upon the exception at 28 U.S.C. § 1605(a)(5), commonly known as the “commercial tort exception” to foreign sovereign immunity. See SAC ¶ 13; Am. Compl. ¶ 19; Compl. ¶ 19. This basis for the assertion of jurisdiction is removed in the Third Amended Complaint, which is the operative one here.

14

Currently, Nasrin and Simin both qualify as “nationals of the United States.” Nasrin has been a U.S. citizen since 2009, see Nasrin Supp. Aff. ¶ 6, and Simin has been a U.S. citizen since December 2011 and served in the U.S. Army from January 2011 to September 2011, see Taylor Aff. ¶¶ 9-10. Nevertheless, neither Nasrin nor Simin was a national of the United State at the time the operative acts of torture and extrajudicial killing took place between 1999 and 2006.

15

A separate section of the Immigration and Nationality Act establishes four narrow categories of persons who qualify as nationals, but not citizens, of the United States. See 8 U.S.C. § 1408. The plaintiffs do not fit within any of those four categories.

16

Despite the fact that

Peterson‘s reading of the term “national” is contrary to more recent precedent from the D.C. Circuit, see

Lin, 561 F.3d at 508, the

Peterson holding is nevertheless still consistent with the current text of the FSIA. The current version of the FSIA terrorism exception—enacted in 2008, after

Peterson was decided—expanded the scope of claimants and victims who can sue under the terrorism exception. In particular, the current version confers jurisdiction if the claimant or the victim of the foreign state‘s actions was, inter alia, “a member of the armed forces” at the time of the event underlying the claim. See 28 U.S.C. § 1605A(a)(2)(A)(ii).

17

The other acts that qualify are “aircraft sabotage” and “hostage taking.” See 28 U.S.C. § 1605A(a)(1).

18

Indeed, the plaintiff‘s broad reading of the term “torture” is contrary to the D.C. Circuit‘s holding that acts of torture must be “sufficiently extreme and outrageous to warrant the universal condemnation that the term ‘torture’ both connotes and invokes.”

Price, 294 F.3d at 92. It would significantly dilute the concept of “torture” if that word encompassed sporadic verbal or electronic harassment, particularly since “torture does not automatically result whenever individuals in official custody are subject even to direct physical assault.”

Id. at 93.

19

Since the Court concludes that neither the plaintiffs nor their deceased brother satisfy the FSIA‘s requirement of being “nationals of the United States” at the time that the acts of torture and extrajudicial killing occurred, the Court need not address whether the plaintiffs “afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration.” See 28 U.S.C. § 1605A(a)(2)(A)(iii).

20

The

Kiobel majority also specified in this regard that the presumption against extraterritoriality is not displaced by “mere corporate presence” in the United States by the alleged offender. See

Kiobel, 133 S.Ct. at 1669.

21

See, e.g.,

Mwani v. Bin Laden, No. 99-125, 2013 WL 2325166, at *3-4 (D.D.C. May 29, 2013) (finding presumption against extraterritoriality rebutted in ATS case, post-Kiobel, where bombing of U.S. embassy in Kenya “impinged the diplomatic mission of the United States,” “directly infringed on the rights of ambassadors,” the events at issue “were directed at the United States government, with the intention of harming this country and its citizens,” and perpetrators of attack “were involved in an ongoing conspiracy to attack the United States, and overt acts in furtherance of that conspiracy took place within the United States“).

22

Justice Breyer framed this conclusion by stating at the outset that prior Supreme Court precedent “essentially leads today‘s judges to ask: Who are today‘s pirates?” and concluding that “[c]ertainly today‘s pirates include torturers and perpetrators of genocide.”

Kiobel, 133 S.Ct. at 1671-72 (Breyer, J., concurring).

23

In this regard, Justice Breyer wrote: “[T]he plaintiffs allege, not that the defendants directly engaged in acts of torture, genocide, or the equivalent, but that they helped others (who are not American nationals) to do so.”

Kiobel, 133 S.Ct. at 1678 (Breyer, J., concurring).

24

Related to this issue, five days after the Supreme Court decided

Kiobel, the Court vacated a decision in a case called

Rio Tinto PLC v. Sarei and remanded the case “for further consideration in light of [

Kiobel].” See

U.S. —, 133 S.Ct. 1995, —, 185 L.Ed.2d 863, 2013 WL 1704704, at *1 (2013). In that case, an en banc panel of the Ninth Circuit Court of Appeals held, over a number of full-throated dissenting opinions, that it had jurisdiction over claims of genocide and war crimes brought pursuant to the ATS, and which arose out of an uprising in Papua New Guinea against a mining company that resulted in many deaths. See

Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir.2011) (en banc).

25

The Court construes the plaintiffs’ claim in the Third Amended Complaint for “Engaging in Terrorism and/or Providing Material Support to a Terrorist Organization” as a claim under the ATS. See TAC ¶¶ 30-46. Even if such a claim were not barred by

Kiobel, the plaintiffs have presented no evidence in this case to support the allegation that the defendants “knowingly and substantially assisted Al Qaeda, Hezbollah, Taliban, and other terrorist groups and nation states and their collaborators to commit acts that violate clearly established international law norms.” See

id. ¶ 45. Indeed, the plaintiffs have demonstrated no connection between their injuries and the actions of terrorist groups such as al Qaeda and Hezbollah.

26

Although the Court dismisses this case on subject-matter jurisdiction grounds, there is also a serious question as to whether the Court has personal jurisdiction over any of the defendants. As already discussed, the service performed by the plaintiffs under the FSIA and the Federal Rules of Civil Procedure appear to have numerous defects. See supra note 11. Deficient service alone would be enough to deprive the Court of personal jurisdiction over all of the defendants. See, e.g.,

Omni Capital Int‘l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.“). Beyond the service issues, however, there is also a serious question as to whether the exercise of personal jurisdiction over defendants Khamenei and Ahmadinejad would be “consistent with the United States Constitution and laws.” See FED.R.CIV.P. 4(k). “Whether the exercise of jurisdiction is ‘consistent with the Constitution’ for purposes of Rule 4(k)(2) depends on whether a defendant has sufficient contacts with the United States as a whole to justify the exercise of personal jurisdiction under the Due Process Clause of the Fifth Amendment.”

Mwani, 417 F.3d at 11. Due process demands that, in order to exercise jurisdiction over a non-resident defendant, that defendant must “have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”

Int‘l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks omitted). Due process also “requir[es] that individuals have ‘fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign.‘”

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting

Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (Stevens, J., concurring)). “Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, this ‘fair warning’ requirement is satisfied if the defendant has ‘purposefully directed’ his activities at residents of the forum,” and “the litigation results from alleged injuries that ‘arise out of or relate to those activities.‘”

Id. (footnote, citations, and internal quotation marks omitted). In the instant case, the plaintiffs have not established that Khamenei and Ahmadinejad have had “minimum contacts” with the United States or that they have “purposefully directed” their activities here. As the plaintiffs point out, the D.C. Circuit has approved of personal jurisdiction in a situation where a terrorist leader and his terrorist organization “orchestrated the bombing of the American embassy in Nairobi, not only to kill both American and Kenyan employees inside the building, but to cause pain and sow terror in the embassy‘s home country.” See

Mwani, 417 F.3d at 13 (emphasis added). The defendants in

Mwani were also engaged in “an ongoing conspiracy to attack the United States, with overt acts occurring within this country‘s borders.”

Id. In an earlier case, however, the D.C. Circuit made clear that “tortur[ing] two American citizens in Libya” was “insufficient to satisfy the usual ‘minimum contacts’ requirement.” See

Price, 294 F.3d at 95. Thus, “[t]he Price and Mwani opinions, read together, suggest that acts of terror or torture committed against American citizens abroad, standing alone, can support personal jurisdiction only if the defendant expressly intended the effects of the act to be felt in the United States.”

Nikbin, 471 F.Supp.2d at 73 (emphasis in original). The plaintiffs in the instant case have not presented evidence that any of the defendants’ actions that took place in Iran were “expressly intended” to have effects felt in the United States. See

id. Arguably, the Court could still exercise personal jurisdiction over Khamenei and Ahmadinejad with respect to the plaintiffs’ intentional infliction of emotional distress (“IIED“) claims because, according to the plaintiffs, they continue to be harassed and threatened in the United States by agents of “the Iranian regime,” who “operate in this forum and are under the direct orders of [Khamenei and Ahmadinejad].” See Pls.’ Mem. at 10-11. Based on the plaintiffs’ allegation that “the Iranian regime‘s continued presence in their lives have left Plaintiffs unable to function as human beings,” see TAC ¶ 128, it is not out of the question that at least some portion of the plaintiffs’ IIED claim arises out of the “Iranian regime‘s” ongoing contacts with the United States. See, e.g.,

Calder v. Jones, 465 U.S. 783, 789-91, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). Even assuming this theory of personal jurisdiction were viable on the facts of this case, it would be insufficient to confer personal jurisdiction over Khamenei and Ahmadinejad. Although the plaintiffs have established that they continue to be harassed and threatened by “the Iranian regime” in the United States, the plaintiffs have not presented sufficient evidence to support the conclusion that any actions directed at the United States were carried out with the personal involvement of either Khamenei or Ahmadinejad. The plaintiffs have presented evidence that Khamenei and Ahmadinejad directed more significant acts, such as detention, torture, and killing of political dissidents, but the plaintiffs have not shown that Khamenei and Ahmadinejad were personally involved in less significant actions, such as threatening phone calls and computer hacking. These less significant actions were the ones allegedly carried out in the United States against the plaintiffs. Without sufficient facts connecting the ongoing harassment of the plaintiffs in the United States with the personal conduct of Khamenei or Ahmadinejad, it is doubtful that the Court would be able to exercise personal jurisdiction over Khamenei or Ahmadinejad consistent with the Due Process Clause.

Case Details

Case Name: Mohammadi v. Islamic Republic of Iran

Court Name: District Court, District of Columbia

Date Published: May 31, 2013

Citation: 947 F. Supp. 2d 48

Docket Number: Civil Action No. 2009-1289

Court Abbreviation: D.D.C.