Worley v. the Islamic Republic of Iran , 75 F. Supp. 3d 311 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
NANCY WORLEY, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 12-2069 (RCL)
)
ISLAMIC REPUBLIC OF IRAN, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
This is one of many cases to have come before this Court arising out of the October 1983
bombing of the U.S. Marine barracks in Beirut, Lebanon. Plaintiffs—servicemen, relatives of
servicemen, and estates representing deceased members of these groups—seek to recover
damages for injuries sustained in the attack and its aftermath from defendants the Islamic
Republic of Iran and the Iranian Ministry of Information and Security (“MOIS”).
Pending before the Court are plaintiffs’ motion for default judgment on liability and their
motions to appoint special masters. For the reasons that follow, the Court concludes that
defendants are liable to plaintiffs for injuries arising out of the Beirut barracks bombing.
Therefore, plaintiffs’ motion for default judgment on liability is DENIED IN PART as to
plaintiffs Ollie James Edwards and Jeff Dadich and GRANTED IN PART as to all other
plaintiffs. The Court also concludes that Alan Balaran shall be appointed special master of the
Court for consideration of the measure of damages appropriate for each plaintiff and for
completion of such other duties as are specified in the Court’s Order accompanying this
Memorandum Opinion and also issued this date. Plaintiffs’ motion to appoint Mr. Balaran is
GRANTED. Plaintiffs’ other motions to appoint special masters are DENIED.
I. PROCEDURAL HISTORY
Plaintiffs filed suit on December 28, 2012. Compl., ECF No. 1. Both jurisdiction and
liability are premised on section 1605A of the Foreign Sovereign Immunities Act (“FSIA”). 28
U.S.C. § 1605A. That section, often referred to as the state-sponsored terrorism exception to
foreign sovereign immunity, furnishes a private right of action to victims of state-sponsored
terrorism who meet the statute’s strict requirements.
Defendants were served with process on July 31, 2013, notifying them of the pendency of
this litigation. ECF No. 17. Defendants did not appear or respond in any way. They have not
done so to this day. The Clerk of the Court, upon an affidavit by plaintiffs in support thereof,
entered default against defendants on May 23, 2014. ECF Nos. 20, 21. Plaintiffs have since
moved for a default judgment against defendants. Pl.’s Renewed Mot. for Default J. on Liability,
ECF No. 27. They have also moved for appointment of three special masters: Larry Searle
Lapidis, Alan Balaran, and Ronald Hedges. Pl.’s Mot. to Appoint Special Master, ECF Nos. 23–
27.
II. FINDINGS OF FACT
Before determining whether defendants should have a default judgment entered against
them, the Court must consider evidence and make findings of fact with respect to plaintiffs’
allegations. This is because section 1608(e) of the FSIA requires that no default judgment shall
be entered against a foreign state or its political subdivision except upon “evidence satisfactory
to the court.” 28 U.S.C. § 1608(e). The Court, therefore, may not “simply accept a complaint’s
unsupported allegations as true.” Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 171
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(D.D.C. 2010). Courts may rely upon uncontroverted factual allegations that are supported by
affidavits. Id. Also, courts may take judicial notice of prior related proceedings in cases before
the same court. Id. Before the Court sets out its findings of fact, the basis for accepting this
latter form of evidence warrants greater elaboration.
A. Judicial Notice of Prior, Related FSIA Cases
A court may “take judicial notice of, and give effect to, its own records in another but
interrelated proceeding.” Opati v. Republic of Sudan, ---F. Supp. 2d---, Civil Action No. 12-
1224 (JDB), 2014 WL 3687125, at *2 (D.D.C. July 25, 2014) (quoting Booth v. Fletcher, 101
F.2d 676, 679 n.2 (D.C. Cir. 1938)). This is in keeping with Federal Rule of Evidence 201(b),
which allows a court to “judicially notice a fact that is not subject to reasonable dispute because
it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably
be questioned.” Fed. R. Evid. 201(b). In light of this authority and the numerous FSIA cases in
recent years giving rise to nearly identical factual and legal issues, this Court and others in this
District have frequently taken judicial notice of earlier, related cases arising under the state
sponsored terrorism exception to foreign sovereign immunity. See, e.g., Fain v. Islamic Republic
of Iran, 856 F. Supp. 2d 109, 115 (D.D.C. 2012) (citing cases).
The Court may not, however, simply adopt previous factual findings without scrutiny.
This is because factual findings “represent merely a court’s probabilistic determination as to
what happened, rather than a first-hand account of the actual events.” Id. at 116. As such, courts
have concluded that findings of fact are generally considered hearsay, not subject to an
enumerated exception to the prohibition on hearsay evidence in the federal rules. Rimkus, 750 F.
Supp. 2d at 172. This does not mean, however, that courts in later, related FSIA proceedings are
given the “onerous burden of re-litigating key facts in related cases arising out of the same
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terrorist attack.” Id. Instead, courts hearing related FSIA cases may “rely upon the evidence
presented in earlier litigation—without necessitating the formality of having that evidence
reproduced—to reach their own, independent findings of fact in the cases before them.” Id. As
stated above, the records of this Court in related proceedings are not subject to reasonable
dispute. See Opati, 2014 WL 3687125, at *2. Thus, the type and substance of evidence
previously presented to this Court in prior proceedings may be judicially noticed in the process
of reaching findings of fact in this case.
In Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46 (D.D.C. 2003), this Court
presided over a two day bench trial of claims arising out of the Beirut barracks bombing. Id. at
48. The Court “reviewed the extensive evidence presented during that trial by both lay and
expert witnesses” regarding the bombing and defendants’ actions relating to it. Id. The Court
will take judicial notice of that evidence in making its findings of fact in this case.
B. The United States Presence in Beirut
The 24th Marine Amphibious Unit (“the 24th MAU”) of the United States Marines
arrived in Beirut in 1983 as part of a multinational peacekeeping force comprised of American,
British, French, and Italian soldiers. Id. at 49. Their presence was in response to an ongoing
civil war in Lebanon, one that would kill approximately twenty thousand Lebanese before its
conclusion. Id. Col. Timothy Geraghty, commander of the 24th MAU, testified before the Court
in Peterson regarding their mission:
[E]ssentially what it was, it was primarily a peacekeeping mission and it was to
show [our] presence, and when I say ours, and this is throughout all the forces, is
that we were out showing a presence, [primarily] to provide stability to the area.
And I might add that there's no doubt in just about anyone involved at the time,
we saved a lot of lives by our presence there for awhile. And that was part of, I
might add, in my judgment, the success of that, our presence mission there, and
[that] it was working is the primary reason why we were targeted . . . .
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The rules—these were geared primarily again with the peacekeeping mission [in
mind] and the sensitivities of killing or maiming someone accidentally. That
could be a tinderbox. That could start a whole chain of events.
Id. at 50 (alterations in original).
The “rules” referred to in Col. Geraghty’s testimony, the rules of engagement applicable
to the 24th MAU, “made clear that the servicemen possessed neither combatant nor police
powers.” See id. at 49 (finding that the “servicemen were ordered not to carry weapons with live
rounds in their chambers, and were not authorized to chamber the rounds in their weapons unless
(1) they were directly ordered to do so by a commissioned officer or (2) they found themselves
in a situation requiring the immediate use of deadly force in self-defense”). In light of this
evidence, the Court finds, just as it did in Peterson, “that on October 23, 1983, the members of
the 24th MAU, and the service members supporting the unit, were clearly non-combatants
operating under peacetime rules of engagement.” Id. at 50.
C. The Bombing
On the morning of October 23, 1983, an Iranian national named Ismalal Ascari crashed a
truck containing a large explosive device through wire and sandbag barriers and into the center
of the 24th MAU’s barracks. Id. at 56. The truck’s payload detonated with a force between
15,000 and 21,000 pounds of TNT, destroying the four story barracks building and leaving a
crater over eight feet deep. Id. 241 servicemen died in the blast. Id. at 58. Many others were
wounded. Id.The attack resulted from a plan hatched by a group including the leader of the Lebanese
headquarters of the Iranian Revolutionary Guard, an elite Iranian security and military force, and
leaders of Hezbollah, a radical organization dedicated to the perpetration of “terrorist activities in
furtherance of the transformation of Lebanon into an Islamic theocracy modeled after Iran.” Id.5
at 51, 54 n.14, 55–56. The truck used to carry out the attack was “disguised so that it would
resemble a water delivery truck that routinely arrived at the Beirut International Airport, which
was located near the U.S. Marine barracks in Beirut.” Id. at 56. Members of Hezbollah
“ambushed the real water delivery truck before it arrived at the barracks,” allowing the bomb
carrying truck to carry on its mission without raising suspicion until it was too late. See id.D. Defendants’ Actions and Involvement
The Peterson Court received overwhelming evidence demonstrating that “Hezbollah and
its agents received massive material and technical support from the Iranian government” in
carrying out the Beirut attack and that the “formation and emergence of Hezbollah as a major
terrorist organization is due to the government of Iran.” Id. at 53, 58. The Court agrees that
these findings are accurate and adopts them in this case. These findings are demonstrated by the
following evidence.
1. Iran’s role in Hezbollah’s origins and operations
Hezbollah first began as a radical faction of Shi’ite Muslims in Lebanon, encouraged in
1982 to separate from more moderate members of the community by the Iranian government. Id.
at 51. Experts testified to the Peterson Court that at the time of the Beirut bombing, Hezbollah
was largely a “creature of the Iranian government,” wholly dependent on the government’s
financial support and largely acting in furtherance of Iranian interests. Id. at 51–53; e.g. id. at 53(recounting testimony stating that the internal politics of Hezbollah were such that “no one in the
organization would have thought about carrying out an activity without Iranian approval and
almost certainly Iranian orders”). Indeed, Robert Baer, a case officer in the Directorate of
Operations at the CIA at the time, testified to the Court that “Hezbollah wasn’t ‘formally’ created
until 1985;” before that date, it was merely “a bunch of agents of Iran.” Id. at 52 n.10.
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2. MOIS approval and instigation of the Beirut attack
MOIS was at the center of the relationship between Iran and Hezbollah. Originally
formed as the secret police of the Shah of Iran, MOIS served as the “intelligence organization of
the new government” after the 1979 revolution. Id. at 53. It was also the “primary agency
through which the Iranian government both established and exercised operational control over
Hezbollah.” Id. Testimony at the Peterson trial established that MOIS approval would have
been required before an operation like the Beirut attack. Id.Such a message of approval did, in fact, issue regarding the barracks bombing. Admiral
James A. Lyons, Deputy Chief of Naval Operations for Plans, Policy, and Operation at the time
testified regarding the interception of a September 26, 1983 message between Tehran and
Damascus. Id. at 54. The Court in Peterson described the message:
The message had been sent from MOIS to the Iranian ambassador to Syria, Ali
Akbar Mohtashemi, who presently serves as an adviser to the president of Iran,
Mohammad Khatami. The message directed the Iranian ambassador to contact
Hussein Musawi, the leader of the terrorist group Islamic Amal, and to instruct
him to have his group instigate attacks against the multinational coalition in
Lebanon, and “to take a spectacular action against the United States Marines.”
Admiral Lyons testified that he has absolutely no doubt of the authenticity or
reliability of the message, which he took immediately to the secretary of the navy
and chief of naval operations, who viewed it, as he did, as a “24–karat gold
document.”
Id. at 54 (footnotes omitted). Evidence presented to the Court showed that Ambassador
Mohtashemi “did proceed to contact a member of the Iranian Revolutionary Guard . . . and
instructed him to instigate the Marine barracks bombing.” Id. at 54–55 (describing deposition
testimony of a Hezbollah member who stated that Mohtashemi contacted the leader of the
Lebanese headquarters of the Iranian Revolutionary Guard, the man who went on to help plan
the attack with members of Hezbollah, as set forth above).
3. Iranian material support for Hezbollah and the Beirut attack
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Between 1983 and 1988, “the government of Iran spent approximately $50 to $150
million financing terrorist organizations in the Near East.” Id. at 51. Hezbollah was one entity
to receive the benefit of Iran’s sinister largesse. MOIS acted as a “conduit” for the provision of
these funds to Hezbollah. Id. at 53.
Iran’s support extended to the provision of training and matériel. Dr. Reuven Paz, a
scholar who had conducted extensive research on Islamist terrorist organizations, testified to the
Peterson Court that during the creation of Hezbollah, members “started to be trained in training
camps in the Bekaa Valley, where the main Iranian forces were located.” Id. at 52. As to the
supplies used in carrying out the barracks bombing, circumstantial evidence strongly indicates
Iranian involvement. The bomb that caused the blast was composed of a large quantity of an
explosive called pentaerythritol tetranitrate (“PETN”), according to testimony from on-scene FBI
forensic explosive investigator Danny A. Defenbaugh. Id. at 56–57. The PETN on board the
truck was in “bulk form,” meaning that it was of a raw type not generally available
commercially. Id. at 56–57. Evidence indicated that “[i]n the Middle East, the bulk form of
PETN is produced by state-sponsored manufacturers for military purposes.” Id. at 57. Warren
Parker, an explosives expert testifying before the Peterson Court, stated that the bombing could
not have been carried out by a mere group of unsophisticated individuals because of the
“significant amount” of “military-type explosive” involved and because “it was carried out so
successfully and not bungled;” the latter point “enhance[d] the fact that somebody had practiced
this before.” Id. at 57–58.
In light of this evidence, the Court reaffirms its previous finding that the “sophistication
demonstrated in the placement of an explosive charge in the center of the Marine barracks
building and the devastating effect of the detonation of the charge indicates that it is highly
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unlikely that this attack could have resulted in such loss of life without the assistance of regular
military forces, such as those of Iran.” Id. at 58.
4. Iranian government involvement at the highest level
As set forth above, major Hezbollah operations at the time of the barracks bombing
would have required Iranian approval. Indeed, an intercepted message from MOIS to the Iranian
ambassador in Syria appears to have instigated and approved the Beirut attack. Dr. Patrick
Clawson, an Iranian affairs expert, testified that this MOIS approval would have come after a
“discussion in the National Security Council which would involve the prime minister, and it
would also have required the approval of Iran’s supreme religious leader, Ayatollah Khomeini.”
Id. at 53 (basing this view on “detailed accounts about the approval process from other attacks at
this time”). Given this testimony, the Court finds that “MOIS was no rogue agency acting
outside of the control and authority of the Iranian government.” Id. Furthermore, the necessity
of the approval of the ayatollah and the prime minister demonstrates that any MOIS act during
this period supporting Hezbollah and the barracks bombing specifically is properly deemed an
act of Iran’s government. Id. at 54.
III. CONCLUSIONS OF LAW
A. Jurisdiction and Sovereign Immunity
The 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 (1989). The statute
codifies the concept of foreign sovereign immunity, something which is “a matter of grace and
comity on the part of the United States, and not a restriction imposed by the Constitution.”
Republic of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250, 2255 (2014) (quoting Verlinden
B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983)). The FSIA sets forth exceptions to
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foreign sovereign immunity that provide the only authority for a district court to assert subject
matter jurisdiction over claims against a foreign state. Odhiambo v. Republic of Kenya, 764 F.3d
31, 34 (D.C. Cir. 2014). “[I]f no exception applies, the district court has no jurisdiction.” Id.Because subject matter jurisdiction is premised on the existence of an exception to
foreign sovereign immunity, a district court considering a claim against a foreign state must
decide whether an exception to immunity applies “even if the foreign state does not enter an
appearance to assert an immunity defense.” Verlinden, 461 U.S. at 493 n.20. This is in keeping
with the general rule that “[s]ubject-matter jurisdiction can never be waived or forfeited;” thus,
when jurisdictional questions arise in a suit, “courts are obligated to consider sua sponte issues
that the parties have disclaimed or have not presented.” Gonzalez v. Thaler, 132 S. Ct. 641, 648
(2012).
1. Original jurisdiction
Federal district courts have original jurisdiction over FSIA cases by virtue of 28 U.S.C. §
1330. It provides that original jurisdiction will exist over (1) nonjury civil actions (2) for claims
seeking relief in personam (3) against a foreign state (4) when the foreign state is not entitled to
immunity either under sections 1605-1607 of the FSIA or under any applicable international
agreement. 28 U.S.C. § 1330(a). Section 1604 of the FSIA reinforces element four, stating that
foreign states are presumptively immune from jurisdiction in federal and state courts except to
the extent provided in sections 1605 to 1607. 28 U.S.C. § 1604.
All of section 1330(a)’s requirements are met in this case. First, plaintiffs have not
demanded a jury trial. This is, therefore, a nonjury civil action. Second, this suit is against
defendants as legal persons, not against property. The claims, therefore, seek relief in personam.
Cf. Gang Luan v. United States, 722 F.3d 388, 399 n.15 (D.C. Cir. 2013) (“In personam
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jurisdiction is jurisdiction over the defendant. In rem jurisdiction is jurisdiction over the
property.”).
Third, this suit is against a “foreign state.” One defendant, Iran, is plainly a foreign state.
The status of MOIS requires greater consideration. The FSIA defines a foreign state at section
1603(a) as including “a political subdivision of a foreign state.” 28 U.S.C. § 1603(a). The D.C.
Circuit has adopted a “categorical approach” to determining the legal status of foreign
government-related entities for purposes of the FSIA’s jurisdiction and service of process
provisions: “if the core functions of the entity are governmental, it is considered the foreign state
itself; if commercial, the entity is an agency or instrumentality of the foreign state.” Roeder v.
Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003). Evidence presented to the Court in
Peterson demonstrated that MOIS operated as the “intelligence organization” of Iran at the time
of the attack. Peterson, 264 F. Supp. 2d at 53. Intelligence gathering and operations are not
commercial in nature; they are governmental functions. MOIS, thus, may be treated as itself the
“foreign state” for purposes of section 1603(a). See Oveissi v. Islamic Republic of Iran, 879 F.
Supp. 2d 44, 51 (D.D.C. 2012) (finding that MOIS was a foreign state for purposes of those
proceedings because the evidence established it was a “division of the state” itself).
a. Sovereign immunity
The final requirement for jurisdiction under section 1330(a), whether an exception to
sovereign immunity exists as to the defendants, requires more substantial explanation. The
exception to foreign sovereign immunity relevant to this suit is codified at 28 U.S.C. § 1605A,
the state-sponsored terrorism exception. 28 U.S.C. § 1605A. That section establishes that a
foreign state has no immunity
[I]n any case . . . [1] in which money damages are sought [2] against a foreign
state [3] for personal injury or death that was [4] caused by [5] an act of torture,
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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.
Id. (numbering added). The Court now considers each of these requirements for waiver of
sovereign immunity in turn.
First, the complaint identifies and seeks only monetary remedies for plaintiffs’ alleged
injuries. See generally Compl. Second, as established above, both defendants are foreign states
as defined by the statute. Third, plaintiffs have alleged various instances of personal injury or
death and all claims arise from these allegations. Under section 1605A, such injury or death
“must merely be the bases of a claim for which money damages are sought.” Valore v. Islamic
Republic of Iran, 700 F. Supp. 2d 52, 66 (D.D.C. 2010). Jurisdiction is not restricted to injury
suffered directly by each claimant. Id. Thus, plaintiffs’ various claims for physical, emotional,
and financial damages to survivors, decedent’s estates, and decedent’s family members, all
arising from the bombing, constitute the type of claims for personal injury or death required for
jurisdiction.
The fourth element, causation, is established by showing “some reasonable connection
between the act or omission of the defendant and the damages which the plaintiff has suffered.”
Id. (internal citation omitted). Plaintiffs need not show that their injuries would not have
occurred “but for” defendants’ actions. See Kilburn v. Socialist People’s Libyan Arab
Jamahiriya, 376 F.3d 1123, 1128 (D.C. Cir. 2004) (interpreting the similarly worded causation
requirement of the former state-sponsored terrorism exception to foreign sovereign immunity,
section 1605(a)(7), as requiring only “proximate cause”). Plaintiffs have sufficiently
demonstrated a “reasonable connection” between defendants’ acts and their damages. Iran,
through its political subdivision MOIS, provided funding, equipment, and training to Hezbollah,
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thereby assisting it in carrying out the barracks bombing. Furthermore, MOIS, with the approval
of the Iranian regime, approved and instigated the attack. Evidence shows that Hezbollah
received and acted upon this message. These facts more than demonstrate the kind of reasonable
connection required for a waiver of foreign sovereign immunity under section 1605A of the
FSIA. Cf. Estate of Doe v. Islamic Republic of Iran, 808 F. Supp. 2d 1, 16 (D.D.C. 2011)
(holding, with respect to the 1983 and 1984 attacks on the United States embassy in Beirut, that
Iran’s support for Hezbollah made it “entirely foreseeable that innocent people would be killed
or injured by the detonation of a van filled with explosives”).
Finally, the claims must arise out of “an act of torture, extrajudicial killing, aircraft
sabotage, hostage taking, or the provision of material support or resources for such an act.” This
act or provision of material support must be engaged in by an officer, employee, or agent of the
foreign state within the scope of the actor’s office, employment, or agency. 28 U.S.C. §
1605A(a)(1). Two of these statutorily denoted acts are relevant to this case: extrajudicial killing
and the provision of material support or resources.
Extrajudicial killing has the same meaning as it is given in section 3 of the Torture
Victim Protection Act of 1991. Id. § 1605A(h)(7). That section defines extrajudicial killing as
“a deliberated killing not authorized by a previous judgment pronounced by a regularly
constituted court affording all the judicial guarantees which are recognized as indispensable by
civilized peoples.” See Torture Victim Protection Act of 1991, Pub. L. No. 102-256, § 3(a), 106
Stat. 73 (excluding from the definition killings that are lawful under international law). The
Beirut barracks bombing meets this definition. It was carried out after careful planning and
caused the deaths of 241 servicemen. No court proceeding affording basic guarantees of due
process and fairness authorized the attack. Finally, the 24th MAU were not engaged in combat
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operations; instead, its members were present only as peacekeepers and non-combatants. Thus,
no colorable argument can be made that the killings were permissible under international law. In
light of the fact that Hezbollah planned and perpetrated the attack after instigation and approval
from MOIS and the Iranian government, the Court concludes that the acts of extrajudicial killing
may be attributed to defendants on an agency theory. Fain v. Islamic Republic of Iran, 856 F.
Supp. 2d 109, 121 (D.D.C. 2012). Furthermore, the facts found by the Court show that the attack
was within the scope of Hezbollah’s agency.
Provision of material support or resources, alternatively, also may form the basis of a
waiver of sovereign immunity. The term has the same meaning as it is given in section 2339A of
Title 18 of the U.S. Code. 28 U.S.C. § 1605A(h)(3). That section defines “material support or
resources” as
any property, tangible or intangible, or service, including currency or monetary
instruments or financial securities, financial services, lodging, training, expert
advice or assistance, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances, explosives,
personnel (1 or more individuals who may be or include oneself), and
transportation, except medicine or religious materials.
18 U.S.C. § 2339A(b)(1).
The facts found by the Court demonstrate that defendants engaged in material support for
acts of extrajudicial killing. The Court has found that Iran, through the “conduit” of MOIS,
provided Hezbollah with explosives, funding, and training that led directly to the barracks
bombing. These provisions meet section 2339A’s expansive definition of “material support.”
Furthermore, because these provisions would have necessarily been approved by officials at the
highest level of the Iranian government, defendants’ material support for the bombing was
evidently within the scope of office, employment, or agency.
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Defendants are not entitled to sovereign immunity because this case satisfies each
element of section 1605A(a)(1). Because all of section 1330(a)’s requirements for jurisdiction
are satisfied, the Court possesses original jurisdiction over this matter.
2. Requirements for a claim to be heard
Section 1605A only applies if three conditions are met: (1) the foreign state was
designated a state sponsor of terrorism at the time of the act giving rise to liability or was so
designated in response to such act and remains so designated, (2) the claimant or victim was a
national of the United States or member of the armed forces at the time of the act described in
subsection (a)(1)1, and (3) in cases where the act occurred in the foreign state against whom suit
has been brought, the foreign state was afforded a reasonable opportunity to arbitrate the claim in
accordance with the accepted international rules of arbitration. 28 U.S.C. § 1605A(a)(2). Each
of these conditions is met here.
First, Iran was designated by Secretary of State George P. Shultz on January 23, 1984, in
accordance with the Export Administration Act of 1979, as a “country which has repeatedly
provided support for acts of international terrorism.” 49 Fed. Reg. 2836-02 (Jan. 23, 1984)
(statement of Secretary of State George P. Shultz). This designation meets section 1605A’s
definition of “state sponsor of terrorism.” 28 U.S.C. § 1605A(h)(6). This Court has previously
determined that Secretary Shultz’s designation was “in partial response to the Beirut bombing.”
Valore, 700 F. Supp. 3d at 67. Iran continues to be designated as a state sponsor of terrorism to
this day. State Sponsors of Terrorism, U.S. Dep’t of State,
http://www.state.gov/j/ct/list/c14151.htm (last visited Nov. 24, 2014). Thus, the first condition
for a claim to be heard is met.
1
A third category of claimant or victim that would meet section 1605A’s requirements is not relevant here.
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Plaintiffs meet the second requirement because all claimants or victims were nationals of
the United States or members of the United States armed forces at the time of attack.
Uncontroverted affidavit evidence has been submitted to the Court demonstrating that all but
four of the plaintiffs, at the time of the bombing, were either United States citizens or members
of the United States armed forces. As to the remaining four, the plaintiffs have failed to submit
evidence regarding their status. Nonetheless, their claims shall be heard because these four
plaintiffs base their claims on injuries suffered by victims who meet the statute’s requirements.2
See Leibovitch v. Islamic Republic of Iran, 697 F.3d 561, 570, 572 (7th Cir. 2012) (interpreting
section 1605A(a)(2)(A)(ii) as allowing the court to hear intentional infliction of emotional
distress (“IIED”) claims under the FSIA brought by foreign family members of terrorism victims
on the basis of those victims meeting one of section 1605A(a)(2)’s four categories).
Finally, plaintiffs have met the third requirement because the “act” described in
subsection (a)(1)—i.e. the act of extrajudicial killing—occurred in Lebanon, not the defendant
state. Thus, plaintiffs were not required by statute to afford defendants a reasonable opportunity
to arbitrate.
3. Personal jurisdiction
Federal courts have personal jurisdiction over a foreign state if (1) the court has
jurisdiction pursuant to section 1330(a) and (2) service has been properly made under section
1608 of the FSIA. 28 U.S.C. § 1330(b). As established above, the requirements for jurisdiction
2
Plaintiff Arley Buckmaster bring intentional infliction of emotional distress (“IIED”) claims for emotional distress
arising out of injuries suffered by bombing victim John Buckmaster. Compl. ¶ 26. John Buckmaster was a member
of the United States armed forces. Vicki Buckmaster Aff. ¶ 3, ECF No. 27-2 at 70. Ollie James Edwards and Larry
Edwards bring IIED claims for emotional distress arising out of injuries suffered by bombing victim Roy Lee
Edwards. Compl. ¶ 36. Roy Lee Edwards was a member of the United States armed forces. James Edwards Aff. ¶
3, ECF No. 27-2 at 30. Roscoe Hamilton brings IIED claims for emotional distress arising out of injuries suffered
by bombing victim Virgel Dean Hamilton. Compl. ¶ 43. Virgel Dean Hamilton was a member of the United States
armed forces. Ramona Sue Hamilton Green Aff. ¶ 3, ECF No. 27-2 at 130.
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under section 1330(a) are met in this case. The Court next proceeds to an analysis of section
1608’s requirements for service.
Section 1608(a) requires that service upon a foreign state or a political subdivision of a
foreign state—such as MOIS—be completed in one of four ways. 28 U.S.C. § 1608(a). The
methods are presented in order of preference; a method of service must be unavailable or
unsuccessful for a party to attempt service under a later method. Id. The Court has already
determined that the first two methods of service were unavailable to plaintiffs and that the third
method was attempted but unsuccessful. Order Regarding Service of Process at 2, May 17,
2013, ECF No. 8. Therefore, plaintiffs were authorized to effect service under section
1608(a)(4). Id. That provision authorizes service
[B]y sending two copies of the summons and complaint and a notice of suit,
together with a translation of each into the official language of the foreign state,
by any form of mail requiring a signed receipt, to be addressed and dispatched by
the clerk of the court to the Secretary of State in Washington, District of
Columbia, to the attention of the Director of Special Consular Services—and the
Secretary shall transmit one copy of the papers through diplomatic channels to the
foreign state and shall send to the clerk of the court a certified copy of the
diplomatic note indicating when the papers were transmitted.
The Clerk of the Court certified mailing the specified documents, translated as required, to the
State Department on June 26, 2013. ECF No. 11. The State Department subsequently confirmed
transmission of the documents to the Iranian Ministry of Foreign Affairs by way of the Foreign
Interests Section of the Embassy of Switzerland in Tehran. ECF No. 17. Certified copies of the
diplomatic notes showing the date of transmission—July 31, 2013—were attached thereto. ECF
No. 17-1. In light of these filings, the Court concludes that plaintiffs have complied with section
17
1608(a)(4) and have, therefore, properly served defendants in accordance with the FSIA. The
Court may exercise personal jurisdiction over defendants.3
B. Section 1605A’s Statute of Limitations is Not Jurisdictional
Section 1605A includes a limitations provision, at subsection (b), setting out a series of
time periods within which an action under the section “may be brought or maintained.” 28
U.S.C. § 1605A(b). The Court is confronted today with a novel question: is this statute of
limitations a jurisdictional requirement, such that the Court must raise and consider it sua
sponte? The circumstances of this case appear to raise a serious question regarding plaintiffs’
compliance with section 1605A’s limitations provision. Iran, in keeping with its typical practice
in cases of this type, has never appeared and has, therefore, not raised the issue. Statutes of
limitations are typically treated as affirmative defenses that may be waived if not timely raised
by a party. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008). This is
because their primary goal is usually to “protect defendants against stale or unduly delayed
claims.” Id. On the other hand, some statutes of limitations have jurisdictional import and, like
other matters that go to the subject matter jurisdiction of the court, cannot be waived by the
neglect or inaction of the parties. See, e.g., Griffith v. Barnes, 560 F. Supp. 2d 29, 36–37
(D.D.C. 2008) (dismissing, sua sponte, certain claims as time-barred because the relevant statute
of limitations was a jurisdictional component of the statute).
To determine whether a limitations provision is jurisdictional, a court looks to its “text,
context, and relevant historical treatment.” Menominee Indian Tribe of Wisconsin v. United
States, 614 F.3d 519, 524 (D.C. Cir. 2010) (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S.
3
The Court also notes that no minimum contacts threshold must be met as to the defendants, either as a matter of
constitutional or customary international law. See Valore, 700 F. Supp. 2d at 70–71 (concluding that neither Iran
nor MOIS, as foreign states, were protected by the Fifth Amendment’s Due Process Clause and that customary
international law did not come into play because it cannot prevail over a contrary federal statute). Satisfaction of
section 1330(b) is all that is required for assertion of personal jurisdiction over defendants.
18
154, 166 (2010)). If the words used by Congress “clearly state[d]” that the limitations period
prescribed was jurisdictional, a court should treat it as such. Id. (quoting Arbaugh v. Y & H
Corp., 546 U.S. 500, 516 (2006)). Absent such a clear textual indication, the court should
consider “whether the structure of the statute or long-standing judicial precedent ‘compel[s] the
conclusion that . . . it nonetheless impose[s] a jurisdictional limit.’” Id. (alteration in original)
(quoting Muchnick, 559 U.S. at 162)).
1. Text
The Court first considers the text of section 1605A’s limitations provision. It is labeled
“Limitations” and does not explicitly mention jurisdiction. 28 U.S.C. § 1605A(b). This weighs
against finding the requirement jurisdictional. See Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393–94 (1982) (holding that a statutory timely-filing requirement was not jurisdictional and
finding important that the requirement did not “speak in jurisdictional terms or refer in any way
to the jurisdiction of the district courts”).
The picture is somewhat muddied, on the other hand, by consideration of the FSIA’s
jurisdiction conferring provisions. Section 1330 states that district courts have original
jurisdiction over a claim against a foreign state when that state “is not entitled to immunity either
under sections 1605-1607 of this title or under any applicable international agreement.” 28
U.S.C. § 1330(a). Section 1604 of the FSIA states that foreign states “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 this chapter.” 28 U.S.C. § 1604. These sections have been interpreted as
describing opposite sides of the same coin: Ҥ 1604 bars federal and state courts from exercising
jurisdiction when a foreign state is entitled to immunity, and § 1330(a) confers jurisdiction . . .
when a foreign state is not entitled to immunity.” Amerada Hess, 488 U.S. at 434 (emphasis in
19
original). Thus, one could plausibly conclude that for a court to have jurisdiction under the
FSIA, a claim must be brought in compliance with all aspects of sections 1605 to 1607, including
the limitations provision of section 1605A.
The Court holds, however, that interpreting the FSIA’s text to indicate a jurisdictional
limitations period does not accord with the Supreme Court’s “bright line” rule that a statute
“clearly state” that a particular provision is jurisdictional. See Sebelius v. Auburn Reg’l Med.
Ctr., 133 S. Ct. 817, 824 (2013). Sections 1330(a) and 1604 both focus on a foreign state’s
immunity or lack thereof as the sole factor relating to sections 1605 to 1607 that determines the
subject matter jurisdiction of federal courts. See 28 U.S.C. §§ 1330(a), 1604. Under section
1605A, the only provision that refers to immunity is subsection (a), which states the types of
allegations underlying a claim that will result in a foreign state not being entitled to immunity.
Id. § 1605A(a)(1). Subsection (b)’s limitations provision makes no mention of immunity and
instead, in keeping with the usual claim management role played by statutes of limitations,
simply states the time period in which a claim may be brought or maintained under the section.
Id. § 1605A(b).
In Muchnick, the Supreme Court concluded that copyright law’s requirement of copyright
registration before filing an infringement claim was not jurisdictional. Muchnick, 559 U.S. at
157–58, 169. The Court’s holding was based in part on the registration requirement’s “locat[ion]
in a provision ‘separate’ from those granting federal courts subject-matter jurisdiction over those
respective claims.” Id. at 164. Neither jurisdiction-conferring statute relevant to the suit
“condition[ed] its jurisdictional grant on whether copyright holders have registered their works
before suing for infringement.” Id. at 165. Thus, for example, the Court held that the
registration requirement is materially different from the diversity jurisdiction statute’s amount in
20
controversy requirement. Id. at 162. The latter statute’s arrangement demonstrates that the
amount in controversy requirement is a “threshold ingredient” of diversity jurisdiction. Id.
Similarly, in this case, the statutes creating jurisdiction over FSIA causes of action make no
mention of the statute of limitations. Instead, the only “threshold ingredient” to jurisdiction
relating to sections 1605 to 1607 is the absence of immunity under those sections. 28 U.S.C. §§
1330(a), 1604. The FSIA’s text does not clearly state that section 1605A(b) is a limitation on
this Court’s jurisdiction. A finding that it is jurisdictional is not warranted on a textual basis.
2. Structure of the FSIA
As to the FSIA’s structure, an interpretation of subsection (b)’s limitations provision as
non-jurisdictional—and, thus, as waivable—coheres with the way limitations operates for FSIA
claims brought under section 1605. Section 1605, unlike section 1605A, does not contain an
explicit statute of limitations. Instead, when state causes of action are brought under that section,
“the local forum’s statute of limitations applies to the action.” See Sea Search Armada v.
Republic of Colombia, 821 F. Supp. 2d 268, 272 (D.D.C. 2011) (citing Gilson v. Republic of
Ireland, 682 F.2d 1022, 1025 n.7 (D.C. Cir. 1982)). Furthermore, courts have treated such state
limitations as not “intertwined” with sovereign immunity issues and, thus, implicitly as non-
jurisdictional. See Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 666–67 (7th Cir. 2012)
(declining to exercise pendent appellate jurisdiction over a statute of limitations defense because
it was “not inextricably intertwined with the sovereign immunity argument”). It strikes the Court
as anomalous that section 1605A, which expanded the rights of plaintiffs to recover against state
sponsors of terrorism, would have a limitations provision of jurisdictional import when other
parts of the FSIA did not.
3. Prior judicial precedent
21
Finally, in the absence of a clear congressional intent in the statute’s text, “long-standing
judicial precedent” can support holding a statutory requirement jurisdictional. Menominee
Indian Tribe, 614 F.3d at 524. This Court has previously concluded on two occasions that
section 1605A’s statute of limitations is jurisdictional. See Valore, 700 F. Supp. 2d at 64, 69(listing compliance with the statute of limitations as one of the requirements for subject matter
jurisdiction in a case brought under section 1605A); Murphy v. Islamic Republic of Iran, 740 F.
Supp. 2d 51, 62, 66 (D.D.C. 2010) (same). Additionally, at least one other judge of this district
has considered sua sponte plaintiffs’ compliance with section 1605A’s statute of limitations even
though the defendant did not appear to raise the issue, potentially showing implicitly a
jurisdictional view of the provision. Estate of Doe, 808 F. Supp. 2d at 7, 16–17.4
These prior cases do not constitute the sort of long standing judicial precedent which
would support a conclusion that a provision is jurisdictional. In cases where the Supreme Court
has found a precedent-based argument dispositive in holding a provision jurisdictional, “the
Court rested its decision on a line of Supreme Court precedent dating back more than a century.”
Menominee Indian Tribe, 614 F.3d at 525. No such longstanding and well settled line of cases is
present here.
Furthermore, the Court is of the view that a departure from its prior views is warranted.
The Supreme Court has recently clarified its jurisprudence regarding when statutory procedural
requirements should be interpreted to bear on a court’s subject matter jurisdiction. See
Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202–03 (2011) (stating that the Court
has “tried in recent cases to bring some discipline to the use” of the term “jurisdictional” as
applied to procedural rules in statutes). In so doing, it has expressed its intent that courts be
4
The Court notes that in all three of the above-cited cases, the plaintiffs had complied with the statute of limitations.
Thus, the Court’s reconsideration of its prior views on this issue does not contradict any prior holdings of this Court.
22
more cautious in finding that particular provisions are jurisdictional. Muchnick, 559 U.S. at 161
(expressing a desire that courts undertake the sort of analysis described above before finding that
a statutory requirement is jurisdictional). Applying this recently refined standard requires a
different result than was previously reached by this Court.
In light of the foregoing, the Court concludes that compliance with section 1605A’s
statute of limitations is not required in order to assert subject matter jurisdiction. Therefore, the
Court is not required to raise limitations on its own motion.
4. The Court will not discretionarily raise the limitations defense
The Supreme Court has recognized that a court can, as a matter of discretion, raise a
preclusion defense on its own motion in “special circumstances.” Arizona v. California, 530
U.S. 392, 412 (2000). Similarly, the Supreme Court has held that district courts may, in
considering petitions for habeas corpus, consider the timeliness of those petitions sua sponte.
Day v. McDonough, 547 U.S. 198, 209 (2006). In accordance with these cases, the Fourth
Circuit has held that a court may generally consider affirmative defenses sua sponte when the
proceedings “implicate important judicial and public concerns not present in the circumstances
of ordinary civil litigation.” Clodfelter v. Republic of Sudan, 720 F.3d 199, 209 (4th Cir. 2013)
(internal citation omitted). With regard to the defense of res judicata in an FSIA case, that court
held that “[c]omity in the face of an absent foreign sovereign present[ed] a special
circumstance,” which allowed the court to raise the defense on its own motion. Id. The court
also noted that FSIA’s requirement at section 1608(e) that default only be entered on “evidence
satisfactory to the court” further supported the district court “tak[ing] a close look at a plaintiff’s
case.” Id. at 209–10.
23
In this case, however, the Court declines whatever discretionary authority it may have to
raise the defense of limitations on Iran’s behalf. It does so in light of the fundamental rule that
statutes of limitations are generally treated as affirmative defenses that may be waived. John R.
Sand, 552 U.S. at 133. Furthermore, before using its discretion to consider a defense not raised
by a party, a court must “determine whether the interests of justice would be better served by
addressing the merits or by dismissing the petition.” Day, 547 U.S. at 210 (internal citation and
quotation marks omitted). In this case, defendants have chosen not to appear in this litigation
and they must take the consequences that attend that decision, including waiver of potentially
legitimate defenses. See id. at 210–11 (holding that dismissal sua sponte on the basis of
limitations was appropriate where the record suggested it was mere “inadvertent error” that led
the defendant to fail to raise the defense in its answer). While the Court recognizes that
considerations of international comity are compelling, it will heed Congress’s determination that
the statute of limitations is not a requirement for exercise of subject matter jurisdiction and
proceed to consideration of the merits.
C. FSIA Liability
The state-sponsored terrorism exception provides a private right of action. The action is
available to, among others, nationals of the United States and members of the United States
armed forces. 28 U.S.C. § 1605A(c). Foreign states that meet subsection (a)(2)(A)(i)’s
requirements as state sponsors of terrorism may be held liable under subsection (c). Id.
Section 1605A’s private right of action has five basic elements. A plaintiff must prove:
(1) “an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of
material support or resources for such an act” where (2) the act was committed, or the material
support was provided, by the foreign state or agent of the foreign state, and the act (3) caused
24
personal injury or death (4) “for which courts of the United States may maintain jurisdiction
under this section for money damages.” Id. § 1605A (a)(1), (c).
1. Threshold determination of plaintiffs’ and defendants’ statuses
The Court first determines whether the parties are such that subsection (c)’s cause of
action may be pursued.
a. Defendants are state sponsors of terrorism
Defendants, for the reasons stated above in part III.A.2, are state sponsors of terrorism
within the meaning of section 1605A(a)(2)(A)(i) and may be held liable.
b. Entitlement of plaintiffs to bring section 1605A(c) action
All but four of the plaintiffs have demonstrated by uncontroverted affidavits that they are
nationals of the United States or were members of the armed forces at the time of the attack,5
thus demonstrating that they are among the types of parties that may bring a claim under
subsection (c). 28 U.S.C. § 1605A(c)(1), (2).
Three plaintiffs—Arley Buckmaster, Larry Edwards, and Roscoe Hamilton—have
submitted no evidence demonstrating that they fit within one of the four categories of persons
that may bring a claim under section 1605A’s private right of action. The Court directs the
special master appointed by the Court’s Order issued this date to collect evidence regarding
whether these three individuals fit within one of the four categories of persons to whom a foreign
state may be liable under section 1605A(c). If the Court cannot ultimately determine that these
individuals are entitled to bring a section 1605A(c) claim, it shall, at that time, vacate its finding
of liability as to them.6
5
See Pl.’s Affs., ECF No. 27-2 at 6, 9, 24, 30, 33, 36, 39, 42, 55, 58, 61, 64, 67, 70, 73, 83, 86, 89, 91, 111, 130,
133; Pl.’s Affs., ECF No. 31-1 at 1, 3.
6
Section 1605A allows plaintiffs who are not entitled to pursue subsection (c)’s cause of action to use section
1605A as a pass through to causes of action arising under other bodies of law. See Estate of Doe, 808 F. Supp. 2d at
25
Plaintiff Ollie James Edwards also has not submitted evidence demonstrating that he is
within one of the categories of persons to whom a foreign state may be liable under section
1605A(c). Furthermore, uncontroverted affidavit evidence submitted to the Court indicates that
he is, in fact, the deceased father of one of the victims of the barracks bombing and that he died
decades before the bombing. See Ralph Clayton Edwards Aff. ¶ 8, ECF No. 27-2 at 40
(swearing that Ollie James Edwards was the father of Roy Lee Edwards and that he died on May
4, 1950). A plaintiff may not pursue IIED claims for solatium damages under the FSIA if they
were not alive at the time of the tort. Cf. Wamai v. Republic of Sudan, ---F. Supp. 2d---, Civil
Action No. 08-1349 (JDB), 2014 WL 3687179, at *4 n.4 (D.D.C. July 25, 2014) (awarding no
solatium damages to the daughter of the victim of an attack because she was killed in the same
attack). Because the uncontroverted evidence submitted by plaintiffs establishes that Ollie James
Edwards is not entitled to recover against defendants, his claim is hereby dismissed.
c. Standing of estate plaintiffs
In some counts, estate plaintiffs bring claims for injuries suffered during the decedent’s
life. These plaintiffs must establish their standing before they may recover for harms suffered
during the decedent’s lives. Taylor v. Islamic Republic of Iran, 811 F. Supp. 2d 1, 12 (D.D.C.
2011) (noting that “recovery for pain and suffering . . . is not universally available to estate-
plaintiffs”). The determination of whether an estate may maintain a cause of action for injuries
suffered during the decedent’s life is a question “governed by the law of the state which also
governs the creation of the estate.” Id. State law governs this question because it is not related
20 (“Although § 1605A created a new cause of action, it did not displace a claimant’s ability to pursue claims under
applicable state or foreign law upon the waiver of sovereign immunity.”). The Court expresses no opinion at this
time as to whether plaintiffs would be entitled to use section 1605A as a pass through to asserting causes of action
under other sources of law on the basis of their current complaint.
26
to the extent and nature of the claims at issue, but instead involves a threshold question regarding
the “power of the estate to bring and maintain legal claims.” Id.
Plaintiffs have presented no evidence regarding which state laws govern this question as
to each estate plaintiff. The Court will, therefore, refer the matter to the special master appointed
by the Order accompanying this Memorandum Opinion. The special master shall take evidence
regarding which state laws govern this issue as to each decedent. If, based on this evidence, the
Court determines that relevant state laws preclude any estate plaintiff from recovering, the Court
shall dismiss that plaintiff.
d. Standing of deceased plaintiffs
A small group of plaintiffs who appear to allege claims on their own behalf are deceased
according to uncontroverted evidence submitted to the Court. They are Arley Buckmaster, Larry
Edwards, Ollie James Edwards, and Roscoe Hamilton. For the reasons stated above, plaintiff
Ollie James Edwards is dismissed from this case. Plaintiffs Arley Buckmaster, Larry Edwards
and Roscoe Hamilton require greater consideration.
Deceased persons are not proper parties. See Fed. R. Civ. P. 25(a)(1) (requiring dismissal
of an action if a motion to substitute a proper party is not made within 90 days after service of a
statement noting the death of a party). If a party dies during litigation, Rule 25 allows for the
substitution of a proper party. It states that once a formal suggestion of death is made on the
record, a party or the decedent’s successor or representative has 90 days in which to file a motion
for substitution of a proper party. See id. The rule’s time limit is only triggered by a formal
statement of death on the record that identifies the successor who may be substituted as a party.
McSurely v. McClellan, 753 F.2d 88, 98 (D.C. Cir. 1985). The rule normally operates only in
favor of those plaintiffs who have died during the pendency of litigation rather than when a
27
deceased person was named as a party at the initiation of the suit. Mohammadi v. Islamic
Republic of Iran, 947 F. Supp. 2d 48, 54 n.2 (D.D.C. 2013) (stating that Rule 25 is “normally
applied when a party dies during the pendency of an action”).
Affidavit evidence demonstrates that Roscoe Hamilton died during the pendency of this
litigation. Ramona Sue Hamilton Green Aff. ¶ 9, ECF No. 27-2 at 131. The Court does not have
before it evidence indicating whether or not Arley Buckmaster or Larry Edwards died during or
before this litigation commenced. The Court concludes that plaintiffs shall file a formal
statement of death within 14 days of this date, identifying the successor that may be substituted
as a party as to each of these individuals. See Daskalea v. Washington Humane Soc’y, 275
F.R.D. 346, 370 (D.D.C. 2011) (adopting this procedure in a similar situation). If no party or
representative or successor moves for substitution within 90 days of that date, these plaintiffs’
claims shall be dismissed. Furthermore, if the formal statement of death demonstrates that Arley
Buckmaster and Larry Edwards were deceased at the time this litigation was commenced, the
Court shall at that time consider the propriety of ordering substitution of a successor party
despite this fact or whether their claims should be dismissed. Compare Mizukami v. Buras, 419
F.2d 1319, 1320 (5th Cir. 1969) (per curiam) (“[Rule 25] is not available to the appellants in the
present case since [defendant] predeceased the filing of the action.”) with Mohammadi, 947 F.
Supp. 2d at 54 n.2 (finding substitution “appropriate” as to a named plaintiff who predeceased
commencement of the action).7
2. Act
For the reasons stated in part III.A.1.a, the Court finds that the acts giving rise to this case
are of the type for which a foreign state may be held liable under section 1605A(c). Specifically,
7
The Court further notes that to the extent the persons representing these deceased plaintiffs are substituted, the
Court orders the special master appointed by the Order accompanying this Memorandum Opinion to take evidence
regarding which state governs the survival of the decedents’ claims.
28
the evidence establishes that acts of extrajudicial killing were committed by defendants—
through their agents in Hezbollah—and that defendants provided material support in furtherance
of these acts. These acts were within the scope of agency, office, or employment.
3. Actor
Defendants may only be held liable under section 1605A(c) if the acts of extrajudicial
killing were committed or the provision of material support made by defendants themselves or
by their agents. 28 U.S.C. § 1605A(c). As to the acts of extrajudicial killing, for the reasons set
forth in part III.A.1.a, the Court concludes that Hezbollah was acting as the agent of defendants.
Thus, defendants may be held vicariously liable under section 1605A(c) for acts of extrajudicial
killing committed by members of Hezbollah. See Valore, 700 F. Supp. 2d at 75. Alternatively
and also for the reasons explained previously, defendants may also be held liable for their
provision of material support to Hezbollah. See Roeder, 333 F.3d at 234 (holding that the
actions of political subdivisions of a foreign state are attributable to the foreign state itself under
the FSIA because they are treated as legally the same).
4. Theory of recovery—causation and injury
The elements of causation and injury in § 1605A(c) require FSIA plaintiffs “to prove a
theory of liability” which justifies holding the defendants culpable for the injuries that the
plaintiffs have allegedly suffered. Valore, 700 F. Supp. 2d at 73; see also Rimkus, 750 F. Supp.
2d at 175–76 (“[P]laintiffs in § 1605A actions . . . must articulate the justification for such
recovery, generally through the lens of civil tort liability.”). While section 1605A(c) requires
courts to determine the substantive basis for liability arising under it, the court is not given the
authority (or duty) to articulate “federal common law.” Valore, 700 F. Supp. 2d at 76. Instead,
because liability under section 1605A(c) is based on “statutory rights,” federal judges are
29
instructed to “find the relevant law, not to make it.” Bettis v. Islamic Republic of Iran, 315 F.3d
325, 333 (D.C. Cir. 2003). Thus, judges may not “fashion a complete body of law” in
considering claims under section 1605A(c). Id. Based on the D.C. Circuit’s guidance, district
courts in this jurisdiction “rely on well-established principles of law, such as those found in the
Restatement (Second) of Torts and other leading treatises, as well as those principles that have
been adopted by the majority of state jurisdictions” to define the elements and scope of these
theories of recovery. Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44, 54 (D.D.C. 2012)
(quoting In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 61 (D.D.C. 2009)).
Plaintiffs bring claims for wrongful death, survival claims, solatium, assault and battery,
intentional infliction of emotional distress (“IIED”), and for punitive damages. The Court will
consider each cause of action below.8
a. Wrongful death
Estates of some deceased service members bring claims for wrongful death. Compl.
Counts I, V, XVIII, XXI.19. This Court has previously determined that a decedent’s heirs at law,
through the decedent’s estate, may bring a wrongful death action under section 1605A(c) “for
economic losses which result from a decedent’s premature death.” Valore, 700 F. Supp. 2d at 78(internal citation omitted). Where defendants are liable for a decedent’s extrajudicial killing, as
these defendants are, they may be held “liable for the economic damages caused to decedents’
estates.” Id. Plaintiffs’ have sufficiently proved the validity of their wrongful death theory of
recovery against defendants.
b. Assault and battery
8
Throughout their complaint, plaintiffs seek to recover “pursuant to” section 1605A and “in accordance with”
federal common law. As explained in this paragraph, no such “federal common law” exists with respect to FSIA
liability. Therefore, the Court shall ignore this aspect of plaintiffs’ complaint.
9
Plaintiffs number two of the counts in their complaint as “XXI.” XXI.1 refers to the second iteration of count
XXI.
30
Survivors of the attack—including estates of those survivors who have since died—have
alleged assault and battery. Compl. Counts IX, LIII, LIV, LVII. A defendant’s liability for
assault in a section 1605A(c) case is established if “(1) it acted ‘intending to cause a harmful
contact with . . . , or an imminent apprehension of such a contact’ by, those attacked and (2)
those attacked were ‘thereby put in such imminent apprehension.’” Valore, 700 F. Supp. 2d at
76 (alteration in original) (quoting Restatement (Second) of Torts § 21(1)). Liability for battery
arises when a defendant “acted ‘intending to cause a harmful or offensive contact with . . . , or an
imminent apprehension of such a contact’ by, those attacked and (2) ‘a harmful contact with’
those attacked ‘directly or indirectly result[ed].’” Valore, 700 F. Supp. 2d at 77 (alteration in
original) (quoting Restatement (Second) of Torts § 13).
The Court concludes that element one of both assault and battery has been sufficiently
proved, as “acts of terrorism are, by their very nature, intended to harm and to terrify by instilling
fear of further harm.” Id. As for element two of each theory, the Court does not presently have
sufficient proof before it to establish each individual plaintiff’s right to recover on these bases.
Uncontroverted affidavit evidence does, however, establish that at least one plaintiff was put in
imminent apprehension of harmful contact and did suffer such harmful contact as a result of the
bombing. See Mario Haroldo Vasquez Aff. ¶¶ 5–6, ECF No. 27-2 at 25. The Court concludes
that, on the basis of this affidavit, plaintiffs have established a valid theory of recovery on their
assault and battery claims. To the extent any plaintiffs alleging assault or battery are unable to
present proof of their injuries to the special master, their claims shall be dismissed.
c. Intentional infliction of emotional distress
Relying principally on the Restatement (Second) of Torts, this Court has set out the
following standard for recovery on a theory of IIED in section 1605A(c) cases: “One who by
31
extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress, and if bodily harm to the other results
from it, for such bodily harm.” Estate of Heiser v. Islamic Republic of Iran, 659 F. Supp. 2d 20,
26 (D.D.C. 2009) (quoting Restatement (Second) of Torts § 46(1)).
An actor may also be liable for IIED to a party against whom the extreme and outrageous
conduct was not directed if that party is (1) a member of the victim’s immediate family and (2)
was present at the time of the extreme and outrageous conduct. See Murphy, 740 F. Supp. 2d at75 (citing Restatement (Second) of Torts § 46(2)(a)).10 The “immediate family” requirement is
strictly construed in FSIA cases; generally, only spouses, parents, siblings, and children are
entitled to recover. Id.11 As to the issue of presence, this Court has previously held that one
“need not be present at the time of a terrorist attack upon a third person to recover for severe
emotional injuries suffered as a result.” Valore, 700 F. Supp. 2d at 80. This is because terrorism
is sufficiently extreme and outrageous to demonstrate that it is intended to inflict severe
emotional harm on even those not present at the site of the act. Id.The servicemen plaintiffs have established defendants’ liability as to their IIED claims.
As this Court has previously held in cases arising out of the Beirut barracks bombing, “[a]cts of
terrorism are by their very definition extreme and outrageous and intended to cause the highest
degree of emotional distress.” Murphy, 740 F. Supp. 2d at 74 (quoting Belkin v. Islamic
Republic of Iran, 667 F. Supp. 2d 8, 22 (D.D.C. 2009)). At least one plaintiff has established by
uncontroverted affidavit evidence that he suffered emotional distress. Mario Haroldo Vasquez
10
Plaintiffs style their third party IIED claims in this manner: “solatium claim pursuant to 28 U.S.C. § 1605A and in
accordance with the federal common law for intentional infliction of emotional distress.” See, e.g., Compl. Count
XX. Under the FSIA, a “solatium claim is indistinguishable from an IIED claim.” Valore, 700 F. Supp. 2d at 85.
Therefore, the Court will apply the standards for IIED to all of plaintiffs’ claims that are variously styled solatium
and IIED.
11
Though not apparently relevant to these plaintiffs, the Court notes also that half-blood siblings may generally
recover to the same extent as full-blood siblings. Valore, 700 F. Supp. 2d at 79. Additionally, courts may award
solatium damages to individuals who are the “functional equivalents of immediate family members.” Id.32
Aff. ¶¶ 5–6. This is sufficient to show that plaintiffs have a valid theory of recovery against
defendants as to IIED. If any plaintiff cannot provide sufficient proof regarding his or her
injuries to the special master, their claims shall be dismissed.
The family members of servicemen injured and killed in the attack have also met the
additional elements that attend an IIED claim for actions directed against a third person. Each
has established by uncontroverted affidavits that they are immediate family members of
servicemen present at the attack. Furthermore, although the family member plaintiffs do not
allege that they were present at the site of the Beirut attack, this requirement has not been
imposed in cases arising out of the Beirut barracks bombing because of the particularly extreme
and outrageous nature of the terrorist conduct at issue.
Plaintiffs, except for Ollie James Edwards for the reasons stated in part III.C.1.b, have
established a valid theory of recovery with respect to their IIED claims.
d. Survival actions
Several counts of plaintiffs’ complaint plead “survival claims.” See Compl. Counts II,
VI, XIX, XXII. Each one seeks damages for harms suffered between the initial moment of
injury and decedent’s death. See id. Additionally, although not termed survival claims, several
deceased plaintiffs allege causes of action for harms suffered during the decedent’s life. See
Compl. Counts VII, XVI, XX.
A survival claim is one “that could have been brought by the decedent, had he lived to
bring it.” Valore, 700 F. Supp. 2d at 77 (citing Restatement (Second) of Torts § 926). The
recovery is limited, however, to harms suffered before death. Restatement (Second) of Torts §
926(a). As discussed above, all plaintiffs seeking damages for harms suffered during the
decedent’s life must have standing under the particular state law relevant to each deceased
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plaintiff which governs the survival of rights of action after death. If they do, plaintiffs’ claims,
all apparently lodged on theories of battery and IIED, present a valid theory of recovery against
defendants for the reasons stated in the sections regarding defendants’ liability on those theories.
e. Punitive damages
Plaintiffs’ complaint also contains a number of counts seeking punitive damages. Compl.
Counts IV, VIII, XII, XXI, XXIV, LVI. Punitive damages is not an independent cause of action.
Botvin v. Islamic Republic of Iran, 604 F. Supp. 2d 22, 25 (D.D.C. 2009). This is not the end of
the matter, however. Plaintiffs have alleged a number of independent claims for which punitive
damages may be an appropriate remedy. Cf. Rimkus, 750 F. Supp. 2d at 175–76 (allowing a
“claim” for punitive damages to proceed because it was supported by sufficiently specific
allegations of a cause of action under section 1605A). The Court shall treat plaintiffs’ punitive
damages counts as, in effect, a request for punitive damages as a remedy for their other claims
against defendants. See Park v. Hyatt Corp., 436 F. Supp. 2d 60, 66 (D.D.C. 2006) (treating a
claim for punitive damages as “part of an ad damnum clause”). The Court will consider the
proper measure of punitive damages, if any, at the time it considers the special master’s
recommendations regarding compensatory damages.
5. Personal injury
As was already established in part III.A.1.a and for the reasons stated in that part, this suit
is one for “person injury or death.” This element of section 1605A(c)’s private right of action is
also met.
6. Jurisdiction
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For the reasons laid out above in part III.A, the Court “may maintain jurisdiction” over
this suit. In light of plaintiffs’ satisfaction of subsection (c)’s requirements, the Court concludes
that defendants may be held liable to them on the basis of this statute.12
D. Liability Under Non-Federal Law
In some counts of their complaint, plaintiffs seek survival and wrongful death damages
arising under both section 1605A’s private right of action and District of Columbia law. Compl.
Counts I, II, V, VI, XVIII, XIX, XXI.1, XXII. In each instance, plaintiffs’ prayer for damages is
only premised on one set of injuries. Plaintiffs can only have one recovery for their injuries,
regardless of the number of theories upon which they base their complaint. Kassman v. Am.
Univ., 546 F.2d 1029, 1034 (D.C. Cir. 1976) (“Where there has been only one injury, the law
confers only one recovery, irrespective of the multiplicity of parties whom or theories which the
plaintiff pursues.”). Section 1605A(c) authorizes recovery for pain and suffering and economic
losses (including those accruing to estates of decedents). 28 U.S.C. § 1605A(c); Valore, 700 F.
Supp. 2d at 83. Because defendants are liable under section 1605A(c) and because that
subsection explicitly provides for the type of damages that plaintiffs seek in each of the above
noted counts (upon sufficient proof of course), the Court will proceed only on the basis of the
section 1605A(c) claims for each of the counts named in this paragraph. See Belkin, 667 F.
Supp. 2d at 22–23 (declining to award damages on two counts of a complaint because, although
the complaint pled causes of action under District of Columbia and Israeli law, the requested
damages were duplicative of a wrongful death count arising under section 1605A(c)).13
12
The Court again notes that it shall vacate its holding as to the plaintiffs named in part III.C.1.b if it is determined
that they do not in fact meet the status requirements of section 1605A(c). Furthermore, the plaintiffs named in sub-
parts III.C.1.c and d shall be dismissed if the contingencies described in those sub-parts come to pass.
13
The Court notes that to the extent any plaintiffs do not have standing to bring survival claims as a matter of the
relevant state laws governing the estates (as discussed above), recovery would be precluded under both District of
Columbia law and section 1605A(c).
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IV. SPECIAL MASTER
Section 1605A authorizes federal courts to “appoint special masters to hear damage
claims brought under this section.” 28 U.S.C. § 1605A(e)(1). While the Court today makes
legal conclusions regarding defendants’ liability, it does not have sufficient evidence before it to
ascertain the amount of damages to which each plaintiff may be entitled. The Court will,
therefore, invoke its power under the FSIA to appoint a special master for the purpose of taking
evidence and filing a report and recommendation regarding the amount of individual damages
for which defendants may be liable to each plaintiff.14
On July 2, 2010, in O’Brien v. Islamic Republic of Iran, a case arising out of the same
facts as the present matter, the Court adopted an Administrative Plan Governing Special Masters.
The Court shall adopt that plan in this case as well. It is attached to plaintiffs’ motions for
appointment of a special master. E.g., Administrative Plan Governing Special Masters, ECF No.
25-2. While the plaintiffs have restyled the plan attached to their motions with the caption for
this case, it is otherwise identical to the plan adopted in O’Brien and, thus, provides sufficient
guidance to the special master and the parties regarding the special master’s duties and authority.
In accordance with Federal Rule of Civil Procedure 53, the Plan sets forth potential
masters’ qualifications, duties, powers, compensation method, and method of appointment.
According to the Plan, in appointing a master the Court must examine the potential master’s
curriculum vitae as well as an affidavit by the potential master indicating that he has read and
will abide by the Plan if appointed. Id. at 2. Rule 53 additionally requires that a potential master
“file[] an affidavit disclosing whether there is any ground for [his] disqualification under 28
U.S.C. § 455.” Fed. R. Civ. P. 53(b)(3)(A).
14
The special master shall also carry out such additional duties as are specified in the Order accompanying this
Memorandum Opinion and also issued this date.
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Plaintiffs have moved for the appointment of three special masters: Alan Balaran, Larry
Searle Lapidis, and Ronald Hedges. ECF Nos. 23–26. The Court is of the view that Alan
Balaran is an appropriate selection as special master in this case given his familiarity with the
Court’s expectations of a special master in section 1605A cases. Mr. Balaran has complied with
the initial requirements of the Court’s Administrative Plan, making his appointment permissible
under that Plan and under the Federal Rules of Civil Procedure. See ECF Nos. 25-2, 25-3. The
Court is confident that, assuming he receives sufficient and appropriate cooperation from the
plaintiffs, Mr. Balaran will be more than capable of timely complying with the Court’s Order.
Therefore, the Court sees no need at this time for the appointment of additional masters.
Plaintiffs’ motion for the appointment of Alan Balaran is granted; their motions for the
appointment of Larry Searle Lapidis and Ronald Hedges are denied.
V. CONCLUSION
For the foregoing reasons, the Court holds that judgment shall be entered against
defendants as to all issues of liability except that: (1) this judgment shall be vacated as to
plaintiffs Arley Buckmaster, Larry Edwards, and Roscoe Hamilton if the Court ultimately
determines that no evidence supports their bringing a claim under 28 U.S.C. § 1605A(c); (2)
plaintiff Ollie James Edwards is dismissed with prejudice because the uncontroverted evidence
submitted indicates that he is not entitled to recover; and (3) plaintiff Jeff Dadich is dismissed
without prejudice for failure to plead any cause of action or right to recover against defendants.
Plaintiffs shall file a formal suggestion of death as described herein within 14 days of this
date regarding Arley Buckmaster, Larry Edwards, and Roscoe Hamilton. If no party or
successor or representative moves for substitution of a proper party within 90 days of that formal
suggestion, these plaintiffs’ claims shall be dismissed. The Court makes no determination today
37
whether, if it is shown that Larry Edwards or Arley Buckmaster were deceased at the
commencement of this litigation, substitution would be proper as to them.
The Court will refer this matter to special master Alan Balaran for the taking of evidence
on and recommendation of findings regarding the measure of compensatory damages warranted
for each plaintiff and such other matters specified in the Order accompanying this Memorandum
Opinion.
The Court defers consideration of the appropriate level of punitive damages, if any, until
the matter of compensatory damages becomes ripe for consideration. Finally, the Court notes
that it shall dismiss those plaintiffs’ claims that rely on the survival of causes of action if the
relevant state laws governing survival preclude recovery. This issue will be decided at the time
the Court considers an entry of final judgment against defendants.
Signed by Royce C. Lamberth, United States District Judge, on December 8, 2014.
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