United States District Court, District of Columbia
December 18, 2002
JOHN R. CRONIN, PLAINTIFF,
THE ISLAMIC REPUBLIC OF IRAN, ET. AL., DEFENDANTS.
The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
This personal injury action against the Islamic Republic of Iran
("Iran") and the
Iranian Ministry of Information and Security ("MOIS")
arises from a deplorable act of state-sponsored terrorism. The
plaintiff, John R. Cronin, alleges that in November 1984, when he was a
graduate student in Beirut, Lebanon, he was kidnapped at gunpoint from a
hospital by members of Amal, Islamic Amal, and Hizbollah. Cronin
contends that these paramilitary groups were organized, funded, trained,
and controlled by the defendants. He further alleges that after being
taken to the headquarters of Amal, he was repeatedly beaten,
interrogated, and threatened. When he was released four days later, he
alleges that he was near death, not able to even stand on his own.
Cronin brought this action under the Foreign Sovereign Immunities Act
("FSIA") of 1976, 28 U.S.C. § 1602-1611. The FSIA grants federal
courts jurisdiction over suits involving foreign states and their
officials, employees, and agents in certain enumerated instances. One
instance is claims of personal injury or wrongful death resulting from
acts of state-sponsored terrorism. 28 U.S.C. § 1605(a)(7). The FSIA
explicitly eliminates foreign governments' sovereign immunity in suits
for money damages based on acts of torture, hostage taking, or the
provision of material support for such acts. Id.
The defendants have failed to enter an appearance in this matter
despite being properly served with process. 28 U.S.C. § 1608. As a
result, the Court entered default against them under
28 U.S.C. § 1608(e). Before a judgment of default may be entered
against a foreign state, however, the plaintiff must "establish his
claim or right to relief by evidence satisfactory to the court."
28 U.S.C. § 1608(e). Thus, the Court held a hearing to receive
evidence from the plaintiff. Again, the defendants failed to appear.
Based upon the extensive evidence presented and the applicable law, the
Court concludes that the plaintiff has established his right to relief,
and that a default judgment is merited. The Court further finds that the
plaintiff is entitled to compensatory and punitive damages. The Court's
findings of fact and conclusions of law are set forth below.
I. FINDINGS OF FACT
The following findings of fact are based upon the sworn testimony and
documents entered into evidence at the hearing held pursuant to
28 U.S.C. § 1608(e). The Court finds the following facts to be
established by clear and convincing evidence, which would have been
sufficient to establish a prima-facie case in a contested proceeding.
A. Background Information
John R. Cronin was born in Fort Knox, Kentucky on November 8, 1946, and
has been a United States citizen since that date. Tr. at 15. In 1966,
at the age of nineteen, he enlisted in the Marines. Id. While in the
Marines, Cronin served two tours in Vietnam. Tr. at 16. During his
first tour, he was shot in the abdomen by a North Vietnamese soldier when
his unit was ambushed in an area outside of Da Nang. Tr. at 17. Because
of his injuries, he had to undergo a laparotomy and "an end-to-end
ileostomy where they sewed the intestine back together again because
quite a bit of it had been removed." Tr. at 17; Ex. 8 at CR-00128.
Although he was not required to return to combat, he voluntarily went
back to Vietnam for a second tour after recovering from his injuries.
Tr. at 17-18. Cronin was honorably discharged from the Marines in 1969,
having been awarded two Purple Hearts for bravery and several other
prestigious military awards. Exs. 4 and 5.
As a result of the gunshot wound to his abdomen, Cronin suffers from
recurring bouts of small bowel obstruction. Tr. at 19. Dr. Kevin
Weaver, his treating physician, explained that the bowel obstruction is
caused by scar tissue around the areas of the intestine where surgeons
operated, and that occasionally his intestine will swell up and prevent
"the material that's in the intestine" from "mov[ing] through[.]" Ex. 3
at 5-8. Dr. Weaver testified that bowel obstructions, such as those
experienced by Cronin, are "very painful." Ex. 3 at 9. Fortunately,
such bowel obstructions do not require surgery, and are treated with a
short hospital stay in which the patient receives intravenous fluids
while his stomach is drained. Id. (noting that the fluids and lack of
oral ingestion allow the intestine to rest and the swelling to go down).
See also Tr. at 19 ("[I]t had always been resolved by placing a tube down
through the esophageal track and down into the stomach and then draining
the stomach for about four days."). The failure to receive treatment,
however, can be deadly because the obstruction prevents a person from
ingesting food or water orally. Ex. 3 at 9. Dr. Weaver also explained
that "[w]ith not treating it properly, the bowel obstruction will
continue to get worse. The person will get dehydrated. The swelling in
the intestine gets progressively worse." Ex. 3 at 14.
After leaving the Marines, Cronin received a bachelor's degree in
political science from the Citadel, a master's degree in Middle East
studies from the American University in Beirut ("AUB"), and a PhD in
Middle East politics from the School of Oriental and African Studies at
the University of London. Tr. at 15, 58-59; Ex. 6. During the course of
his studies, he spent significant time living in the Middle East,
including Cairo, Egypt and Beirut, Lebanon. As a result, Cronin spoke
Arabic quite well in the early 1980s. Tr. at 24. By virtue of his
knowledge, education, training, and experience, Cronin can fairly be
characterized as an expert in Middle East affairs. In fact, he currently
teaches comparative politics and Middle East affairs at Strayer
University in Virginia. Tr. at 15, 59.
B. Cronin's Abduction and Torture
In 1984, Beirut was a city in turmoil, dominated by various religious
and political factions vying for influence and power. Tr.at 26-27
("There were bombings in the city itself. There were assassination[s].
There were kidnappings. It really was complete chaos."). AUB, located
in west Beirut, was not immune from the religious and political strife
occurring outside its walls. Id. As Thomas Sutherland, acting President
of AUB in 1984 noted, "[w]ell by late 1984, things had been pretty much
on the boil for quite a while. There was a lot of unrest. There was a
lot of fighting even on the campus from time to time." Ex. 12 at 11.*fn1
In fact, Amal, Islamic Amal, and Hizbollah were "all either represented
on campus or certainly well represented in the environs of the
university." Tr. at 27.
Cronin was a graduate student at UAB in 1984. While at UAB he was
threatened several times, and testified that he "was marked from day one"
because he was an American. Tr. at 25. He was accused by other students
of being with "American Intelligence," and was even told by the leader of
the Hizbollah faction on campus to "watch [his] step because we are
watching you very carefully[.]" Tr. at 27.
On the morning of November 16, 1984, Cronin felt a "twinge" in his
upper abdominal region, which he suspected to be the onset of a bowel
obstruction. Tr. at 29. An hour later, when the pain intensified, he
was certain that he was suffering from a bowel obstruction. Id. Having
experienced several episodes of bowel obstructions in the past, he knew
that the obstruction could only be remedied through medical treatment and
hospitalization. Tr. at 19-20. Cronin walked hunched over from the pain
about four blocks to the AUB Medical Center, the University's hospital.
Tr. at 29.
While a physician was examining Cronin, four armed men burst into the
emergency room and walked over to the table where he was being examined.
Tr. at 30-31. One man placed a Togerov pistol under Cronin's ear and
said in Arabic "get up, you are coming with us." Tr. at 31. The doctor
and nurse pleaded with the other three men, who were carrying AK-47
assault rifles, not to take him because his condition was "very serious."
Tr. at 30-31. In response, one of the men pointed his weapon at the
doctor and said that Cronin was an Israeli spy and was going with them.
Cronin recognized two of the abductors as members of Hizbollah because
of the distinctive red headbands they were wearing. Tr. at 31 (noting
that only Hizbollah members wore this particular red headband with a
saying from the Koran written across it in Arabic.). He also knew that
the other two men were members of Islamic Amal because of the distinctive
leather jackets that they were wearing. Tr. at 31 (stating that black
leather jackets were "standard fare for Islamic Amal in those days.").
The various factions operating in Lebanon were identifiable by their
attire. Tr. at 32.
The men forced Cronin into the back seat of a car parked outside the
hospital. Tr. at 32. As they drove off, one of the men accused him of
being an Israeli spy and said that they were going to put him on trial
for espionage. Tr. at 34-35. After Cronin denied that he was a spy,
another abductor ordered him to sit on his hands and then began punching
him in the abdomen. Tr. at 34. Cronin explained that the man "would
take his left fist and hit me as hard as he could in the upper abdominal
region. If I moved my hands up, he'd hit me in the face . . . ." Id.
The man repeatedly hit him "exactly where the small bowel obstruction
was." Id. At one point the man pointed his AK-47 rifle at Cronin's head
and said over and over "you are dead. We've got you now. You are an
Israeli spy and you are ours." Id. After a further exchange of words,
the man turned the rifle around and hit Cronin on the side of his head
with the butt, creating a long gash over his right eye. Tr. at 35; Ex.
After riding in the car for about thirty minutes, the car stopped at
what was later identified as Amal headquarters. Tr. at 39. Cronin could
no longer stand because of the pain caused by the bowel obstruction and
the beating he received in the car. Id. After being kicked and punched
in the face yet again, Cronin was taken into the building. Id. After
spending a short time in a room with a man who identified himself as a
security officer for Amal, Cronin was carried down to a cell area in the
basement of the headquarters. Tr. at 41-42. He was thrown onto the
floor of a cell and left. Tr. at 42.
The prison cell was about twenty feet by twenty feet and held
approximately twenty-five prisoners. Tr. at 42. The cell door was thick
metal with bars. Id. There were no windows, and the only light was from
a single light bulb hanging from the ceiling. Id. The bathroom was a
the ground. Id. Even though the cell was cold, no blankets were
provided to the prisoners. Tr. at 44. Cronin spoke to some of the
prisoners and learned that half of them were members of Amal who had
violated the group's policies. Tr. at 43.
While held captive Cronin was severely beaten numerous times. Tr. at
43. He explained that guards in teams of two or three would enter the
cell, and one guard would ask him questions like "what are you doing
here? Why were you in Israel? Are you CIA? Are you with Mossad, the
Israeli intelligence agency[?]" Tr. at 43-44. The other guards would
proceed to punch him repeatedly in the abdominal region until he could no
longer stand, and then they would proceed to kick him as he lay on the
ground. Tr. at 44. In addition to his own beatings, Cronin was forced
to witness other prisoners being savagely beaten. Tr. at 48.
Cronin's physical condition, already greatly weakened by the bowel
obstruction, deteriorated even further during his captivity. It was so
bad that he could not even sit or stand up on his own by the second day.
Tr. at 44. By the third day, he explained that:
I was contorted in sort of a fetal position because I
couldn't straighten up. It was the only position
where I was not vomiting. It was very difficult to
breathe. I could not drink or eat anything. I had
not been able to eat or drink anything since I had
gotten into the hospital so, of course, I was
dehydrat[ed]. My electrolytes were well out of
balance so I was starting to hallucinate a bit.
Tr. at 44. Although he was brought some food, he could not eat it, and,
as a result, the guards stopped bringing food to him after the second
day. Tr. at 45. He tried, with the assistance of one of the other
prisoners, to drink some water on the third day but was unable to keep it
His physical condition had deteriorated so much by the third day that
he was brought to and examined by a local doctor. Tr. at 46. Cronin
explained to the doctor that he had a bowel obstruction. The doctor
stated that he could not help him because he did not have a vacuum pump,
which could be used to withdraw to material blocked in the abdomen. Id.
The doctor did not even have pain medication to give to him. Id. After
finishing talking to Cronin, the doctor spoke with the men who had
escorted him there. Id. The doctor was shaking his head, which Cronin
understood to mean that he could not help. Id. The men brought Cronin
back to headquarters and threw him into the cell in which he had
previously been held captive. Id.
In addition to a deteriorating physical condition, Cronin's situation
adversely affected his mental state as well. He testified that:
I had no hope of having [the bowel obstruction]
resolved anytime soon so there was a psychological
problem here of this lack of knowledge, and on top of
that, I had never been hit in the stomach [while
experiencing a bowel obstruction], and so it felt like
[my] stomach was swelling up and it was very very hard
to breathe. That worried me too because I had never
had any sort of respiratory problem accompany this
before . . . Then the subsequent beatings every
evening, morning, and afternoon. Again just not
knowing what my fate was going to be. It was a very
Tr. at 48-49. Moreover, on the third day he was forced to attend a
prayer meeting at which he was told that "we will convert you yet." Tr.
at 47. Cronin testified that the meeting was "a dreadful affair." Id.
Suddenly, and without any explanation, Cronin was returned to AUB
Medical Center late in the evening on November 20, 1984. Tr. at 49; Ex.
7. On the way to the hospital, Cronin was warned not to say anything
about his captivity or else they would come back for him. Tr. at 50. By
the time he arrived at the hospital, Cronin was near death. Tr. at 52.
In fact, a doctor stated that he would have died after two more days of
captivity because of his inability to hydrate. Id. Perhaps the best
description of his condition came from Professor Sutherland: "I have seen
some boxing matches in the last two or three years and guys get punched
around quite a bit but they never end up even remotely looking like John
Cronin was. He was a big, big, mess. They had obviously worked him over
very, very, severely." Ex. 13 at 17.
Doctors attempted to resolve his bowel obstruction in the "normal way."
Id. Cronin testified that "they put a tube in through the esophageal
track and so on but nothing was able to be withdrawn." Id. A doctor
explained at the time that his abdomen "may be so swollen that we can't
pull anything out." Tr. at 51. Because the "normal" treatment proved
ineffectual, doctors had to surgically remove the obstruction. Tr. at
51; Ex. 3 at 15; Ex. 7 at CR-00048. Dr. Weaver opined, however, that "it
is very likely that [Cronin] would have responded appropriately as he had
in previous years with conservative therapy . . . had he not received the
beating and also been deprived standard medical care." Ex. 3 at 14-17.
Cronin was discharged from the AUB Medical Center on December 1, 1984.
Ex. 7 at CR-00002; Ex. 3 at 18.
C. The Role of Iran and the MOIS
The Court has no difficulty concluding that Amal, Islamic Amal, and
Hizbollah carried out the heinous acts recounted above. Before making
specific findings regarding the defendants' involvement with these
organizations, however, the Court will briefly describe the three groups
that performed these depraved acts.
Amal, which means "hope," was established in the 1970s as an
organization representing the interests of the Shia community in
Lebanon. Ex. 2 at 7. Initially, Amal did not pursue an anti-Western
agenda and did not engage in the type of conduct described above. Id.
In the early 1980s, however, Amal became a much more radical organization
and began carrying out terrorist attacks. Ex. 2 at 15 (noting that in
the 1980s Amal began to engage in terrorist acts such as kidnappings and
hijackings). As Dr. Clawson explained, "[m]any in the Shia community are
impressed by the Iranian revolution [of 1979], and became radicalized as
a result of that revolution and the Israeli invasion [of Lebanon in
1982]. Id. at 8. Islamic Amal, a splinter group of Amal, was formed
around 1982 by more radical members of the Shia community. Ex. 2 at 9.
Islamic Amal was "actively engag[ed]" in terrorist activities such as
kidnappings and hijackings during the 1980s. Ex. 2 at 15-16.
Hizbollah, which means "party of god," was established in the early
1980s, and from its inception has been a radical organization within the
Shia community. Ex. 1; Ex. 2 at 11-12. Hizbollah also regularly
participated in hostage takings and plane hijackings. Ex. 2 at 15-16.
Dr. Clawson explained that these three groups intentionally carried out
terrorist acts, like taking individuals hostage, to end American cultural
influence and create an Islamic state in Lebanon. Ex. 2 at 21.
The testimonial and documentary evidence presented by the plaintiff
conclusively proves that Iran was pervasively involved with and provided
support to Amal, Islamic Amal, and Hizbollah. This support, in
the form of funding, training, and direction, enabled these groups to
kidnap Cronin in November 1984. Ambassador Robert Oakley explained that
"[t]he Iranians came in and organized Hezbollah out of several small
Shi'a organizations, including Islamic Amal. The Iranians provided
money, they provided advice, they provided advisors. They also provided
muscle." Ex. 1 at 13-14. Similarly, Dr. Clawson explained that "the
Iranians decided early on that they would have to split [Amal] rather
than moving the whole group to become more radical." Ex. 2 at 9-10.
Ambassador Oakley indicated that "Islamic Amal was [in fact] really part
of Hezbollah, tightly associated with Hezbollah, again backed by the
Iranians." Ex. 1 at 16. Iran also sent agents to Lebanon to radicalize
Amal at this time. Ex. 2 at 8. As a result of these actions and other
efforts at supporting terrorist activities in the Middle East, Iran was
designated as a state-sponsor of terrorism pursuant to section 6(j) of
the Export Administration Act of 1979, 50 U.S.C. App. § 2405(j), on
January 19, 1984. It has been designated as such ever since. Further,
Iran continues to spend approximately $150 million annually promoting
terrorist activities. Ex. 2 at 26-27.
The MOIS is the Iranian intelligence service, functioning both within
and beyond the territorial borders of Iran. Formerly the secret police
force (SAVAK) under the Shah, the MOIS is the branch of the Iranian
government that oversees spy operations and deals with terrorist
organizations domestically and abroad. Ex. 1 at 13-14; Ex. 2 at 22-23.
Acting as an agent of Iran, the MOIS provided Amal, Islamic Amal, and
Hizbollah with funding, training, equipment, and advisors to carry out
terrorist activities such as the kidnapping and torture of Cronin. Id.
Indeed, when asked about the MOIS's involvement with Hizbollah,
Ambassador Oakley explained that "they were the one who managed this
entire operation." Ex. 1 at 13-14. Dr. Clawson further noted that the
MOIS's personnel trained Hizbollah members how to interrogate and hold
hostages, and assisted Amal and Islamic Amol in doing the same. Ex. 2 at
22-23. Moreover, much of the money Iran gave to Amal, Islamic Amal, and
Hizbollah was distributed by the MOIS. Ex.1 at 13-14.
II. CONCLUSIONS OF LAW
Actions against a foreign state or an agent of a foreign state must be
brought under the FSIA. Flatow v. Islamic Republic of Iran, 999 F. Supp. 1,
10 (D.D.C. 1998). The FSIA provides that foreign states are immune from
suit in United States courts except in certain enumerated instances.
Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993) (noting that "[u]nder
the [FSIA], a foreign state is presumptively immune from the jurisdiction
of United States courts; unless a specified exception applies, a federal
court lacks subject-matter jurisdiction over a claim against a foreign
state."). Beginning in the mid-1980s, victims of terrorist acts sought
unsuccessfully to sue Iran for its role in the attacks. See, e.g.,
Cicippio v. Islamic Republic of Iran, 30 F.3d 164 (D.C. Cir. 1994);
Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984). In
those cases, the courts held that the plaintiffs' claims against Iran did
not fall under one of the exceptions, and Iran was therefore immune from
In 1996, however, Congress added to the list of enumerated exceptions
by explicitly abrogating the sovereign immunity of foreign states that
commit or cause others to commit acts of terrorism.
28 U.S.C. § 1605(a)(7). In particular, section 1605(a)(7) provides
that "[a] foreign state shall not be immune from the jurisdiction of
courts of the United States in any case . . . in which money damages are
sought against a foreign state for personal injury or death that was
caused by an act of torture, . . . hostage taking, or the provision of
material support or resources . . . for such an act[.]" Section
1605(a)(7) further provides that the foreign state must be "designated as
a state sponsor of terrorism under section 6(j) of the Export
Administration Act of 1979," and that the claimant or victim must be a
"national of the United States . . . when the act upon which the claim is
based occurred." Here, there is no question that Cronin's claims fall
within the ambit of the state-sponsored terrorism exception to foreign
sovereign immunity, 28 U.S.C. § 1605(a)(7). Moreover, pursuant to
28 U.S.C. § 1330(a), district courts "have original jurisdiction . . .
of any nonjury civil action against a foreign state . . . as to any
claim for relief in personam with respect to which the foreign state is
not entitled to immunity under sections 1605-1607 of this title[.]"
28 U.S.C. § 1330(a). See also Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428
, 434 (1989).
The FSIA also governs when district courts have in personam
jurisdiction over foreign states. The statute provides that a district
court will have personal jurisdiction over a foreign state defendant if
the plaintiff establishes the applicability of an exception to immunity
and service of process has been effectuated pursuant to
28 U.S.C. § 1608. Elahi v. Islamic Republic of Iran,
124 F. Supp.2d 97, 106 (D.D.C. 2000) (citing Foremost-McKesson v. Islamic
Republic of Iran, 905 F.2d 438, 442 (D.C. Cir. 1990) ("Personal
jurisdiction under FSIA exists so long as subject matter jurisdiction
exists and service of process has been properly made pursuant to
28 U.S.C. § 1608.")). As the Court discusses more fully below,
Cronin has amply demonstrated that section 1605(a)(7) of the FSIA applies
to his action, and that service of process was properly accomplished
pursuant to section 1608.
Notwithstanding the above analysis, the Court must still determine
whether Cronin has a cause of action against Iran and the MOIS under the
FSIA. As this Court explained in Flatow, "[a]lthough [section
1605(a)(7)] created a forum competent to adjudicate claims arising from
offenses of this nature, serious issues remained, in particular, the
causes of action available to plaintiffs." Flatow, 999 F. Supp. at 12.
See also Elahi, 124 F. Supp.2d at 106 (noting that section 1605(a)(7)
"merely waived the sovereign immunity of state sponsors of terrorism[,]"
it did not create a cause of action against them.).
To create a cause of action for victims of state-sponsored terrorist
acts, Congress passed an amendment to section 1605(a)(7) entitled "Civil
Liability for Acts of State Sponsored Terrorism." Pub. L. No. 104-208,
§ 589, 110 Stat. 3009 (1996) (codified at 28 U.S.C. § 1605(a)(7)
note). This provision, commonly referred to as the "Flatow Amendment,"
after a victim of a bus bombing named Alisa Flatow, provides that "[a]n
official, employee, or agent of a foreign state designated as a state
sponsor of terrorism . . . while acting within the scope of his or her
office, employment, or agency shall be liable to a United States national
. . . for personal injury or death caused by acts of that official,
employee, or agent for which the court of the United States may maintain
jurisdiction under section 1605(a)(7)[.]" 28 U.S.C. § 1605(a)(7)
note. The Flatow Amendment thus clearly establishes a cause of action
against an "official, employee, or
agent" of a foreign state, such as the
MOIS, that commits or causes another to commit a terrorist act. Flatow,
999 F. Supp. at 12-13; Elahi, 124 F. Supp.2d at 106. It is not as clear
from the text of the Flatow Amendment, however, that victims of
state-sponsored terrorist acts also have a cause of action against the
foreign state itself. Price v. Socialist People's Libyan Arab
Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002) (recognizing that "the
amendment does not list `foreign states' among the parties against whom
such an action may be brought."). In Price, the Court of Appeals flagged
the issue for this Court to consider on remand.*fn2 Id. Although the
issue is not yet properly before the Court in Price, to the extent the
precise issue is before the Court here prudence dictates that the Court
After carefully reviewing the FSIA, the Court holds that the Flatow
Amendment does provide victims of state-sponsored acts of terrorism with
a cause of action against the culpable foreign state. There are three
reasons why the Court reaches this conclusion. First, the text of the
Flatow Amendment suggests, although admittedly does not explicitly
state, that a cause of action exists against foreign states proper.
Before addressing the text of the Flatow Amendment, however, it is
important to recognize that the provision must be read in conjunction
with 28 U.S.C. § 1605(a)(7). Flatow, 999 F. Supp. at 13 (noting that
the Flatow Amendment "should be considered to relate back to the
enactment of 28 U.S.C. § 1605(a)(7) as if they had been enacted as
one provision, and the two provisions should be construed together and in
reference to one another."); Id. at 12 (observing that "[t]he Flatow
Amendment is apparently an independent pronouncement of law, yet it has
been published as a note to 28 U.S.C. § 1605(a)(7), and requires
several references to [that provision] to reach even a preliminary
interpretation."). "The operative language of 28 U.S.C. § 1605(a)(7)
parallels the definition of respondeat superior: an employer is liable is
some cases for damages `proximately resulting from acts of [an] employee
done within [the] scope of his employment in the employer's service.'"*fn3
Flatow, 999 F. Supp. at 26 (footnote omitted). Thus, under
28 U.S.C. § 1605(a)(7), the sovereign immunity of a foreign state
will be abrogated if its "official, employee, or agent" provides material
resources to the entity that commits the terrorist act. The Flatow
Amendment likewise provides that an "official, employee, or agent" of a
foreign state shall be liable if their actions were taken "while acting
within the scope of his or her office, employment, or agency[.]"
28 U.S.C. § 1605(a)(7) note. In light of the identical language used
in both statutory provisions, the Court finds that the respondeat
superior implications of section 1605(a)(7) are equally applicable to the
Flatow Amendment. Thus, in Flatow, the Court opined that "[t]he state
sponsored terrorism exception to immunity and the Flatow Amendment
similarly employ the
principles of respondeat superior and command
responsibility to create both subject matter jurisdiction and a federal
cause of action." Flatow, 999 F. Supp. at 26. Moreover, by referring to
officials, employees, and agents of foreign states, the Flatow Amendment
makes clear that they can, in addition to the foreign state itself, be
held liable for providing material support to groups that perform
terrorist acts. See, e.g., Flatow, 999 F. Supp. at 24-25 (noting that
the Flatow Amendment "overrides the common law doctrine of head of state
immunity[.]"). When viewed in this light, it becomes clear that the
omission of "foreign state" from the Flatow Amendment is the beginning,
rather than the end, of the inquiry. It also shows that to interpret the
text of the Flatow Amendment as denying a cause of action against the
foreign state itself would turn the scheme of § 1605(a)(7) on its
head. Instead of using the acts of officials, employees, and agents to
support liability against the foreign state, the same language would be
used in the Flatow Amendment to deny victims of state-sponsored terrorism
a cause of action against the responsible foreign state.
Second, the legislative history of 28 U.S.C. § 1605(a)(7) and the
Flatow Amendment support the conclusion that victims of state-sponsored
acts of terrorism have a cause of action against the foreign state
itself. "The stated purpose[s] of the Antiterrorism Act [are] to deter
terrorist acts against U.S. nationals by foreign sovereigns or their
agents and to provide for justice for victims of such terrorism."
Elahi, 124 F. Supp.2d at 106 (citing 110 Stat. 1214 (1996)). See also
Flatow, 999 F. Supp. at 12-13 ("The brief explanation of the Flatow
Amendment's purpose in the House Conference Report explicitly states that
it was intended to increase the measure of damages available in suits
under 28 U.S.C. § 1605(a)(7).") (citing H.R. Conf. Rep. 863, 104th
CONG, 1996). These stated intentions would both be thwarted by
construing the Flatow Amendment in a manner that precludes victims of
terrorism from bringing suit against the responsible foreign states. At
the same time, the purposes of the legislation would clearly be advanced
by victims having a cause of action against the responsible foreign
state. Indeed, to construe the Flatow Amendment as not conferring a
private cause of action against foreign states would mean that what
Congress gave with one hand in section 1605(a)(7) it immediately took
away with the other in the Flatow Amendment.
Finally, relevant statutory provisions enacted after the Flatow
Amendment also support the conclusion that it gives victims of
state-sponsored acts of terrorism a cause of action against the
responsible foreign state. For example, the Victims of Trafficking and
Violence Protection Act of 2000 ("Victims Protection Act") provides a
mechanism by which successful plaintiffs can recover their damage awards
against foreign states and their agents from the United States
government. P.L. No. 106-386, 114 Stat. 1464 (2000). It is
inconceivable that Congress would enable plaintiffs who obtained
judgments against foreign states like Iran to recover the damage awards
from the United States if the plaintiffs did not have a cause of action
against the foreign state in the first place.*fn4 Moreover, the
legislative history of the Victims Protection Act indicates that Congress
presumes the 1996 changes to the FSIA confers a private right of action
against foreign states. See, e.g., H.R. Conf. Rep. 939, 106th CONG, 2000
(stating that the 1996 amendments allowed "American
citizens injured or
killed in acts of terrorism (or their survivors) to bring a lawsuit
against the terrorist state responsible for that act."); 146 Cong. Rec.
S10164-02 (stating that the 1996 amendments "gave American victims of
state-sponsored terrorism the right to sue the responsible state."). In
addition, Congress amended 28 U.S.C. § 1606 in 1998 to permit victims
to recover punitive damages against foreign states in actions brought
pursuant to § 1605(a)(7). P.L. 105-277, 112 Stat. 2681-491 (1998)
("[A] foreign state except an agency or instrumentality thereof shall not
be liable for punitive damages, except any action under section
1605(a)(7)[.]"). It seems highly unlikely that Congress would amend
§ 1606 to specifically permit punitive damage awards against foreign
states under § 1605(a)(7) if a cause of action did not exist against
those states. Furthermore, Congress repealed the amendment to § 1606
in 2000 after plaintiffs had recovered substantial punitive damage awards
against foreign states like Iran. Elahi, 124 F. Supp. at 113-14 n. 17
(citing P.L. No. 106-386, § 2002(f)(2)). It is even more implausible
that Congress would amend that provision a second time by eliminating
punitive damage awards against foreign states if victims did not have a
cause of action against those foreign states at all.
In holding that victims of state-sponsored terrorist attacks have a
cause of action against the culpable foreign state under the FSIA, this
Court joins virtually every district judge in this circuit who has
addressed the issue. See, e.g., Surette v. Islamic Republic of Iran,
2002 WL 31455114 (D.D.C. November 4, 2002) (Friedman, J.); Daliberti v.
Republic of Iraq, 146 F. Supp.2d 19 (D.D.C. 2001) (Oberdorfer, J.)
Elahi, 124 F. Supp.2d at 106 (Green, J.); Higgins v. Islamic Republic of
Iran, Civ. A. No. 99-377, 2000 WL 33674311 (D.D.C. 2000)
(Kollar-Kotelly, J.); Cicippio v. Islamic Republic of Iran,
18 F. Supp.2d 62 (D.D.C. 1998) (Jackson, J.). But see Roeder v. Islamic
Republic of Iran, 195 F. Supp.2d 140, 171-73 (D.D.C. 2002) (Sullivan,
In light of the findings of fact made above, the Court easily concludes
that the defendants are liable under the FSIA. Cronin has proved all the
requirements of 28 U.S.C. § 1605(a)(7) by clear and convincing
evidence. The injuries he sustained were caused by his being taken
hostage and tortured by Amal, Islamic Amal, and Hizbollah. The Court
finds that he was "taken hostage," for purposes of the FSIA,*fn5 because
his abduction was part of Amal, Islamic Amal, and Hizbollah's general
effort to influence American policy in Lebanon. The Court also finds
that Cronin was "tortured," for purposes of the FSIA,*fn6 because Amal,
Islamic Amal, and Hizbollah inflicted severe pain upon him to get him to
confess to being a spy.
Either one of these findings would support a
finding of liability. The Court is also absolutely convinced that the
defendants, Iran and the MOIS, provided material support and resources
(in the form of training, funding, and direction) to Amal, Islamic Amal,
and Hizbollah. This assistance undoubtedly enabled these groups to take
Cronin hostage and torture him. In addition, as required by the FSIA,
Iran was designated as a state-sponsor of terrorism at the time Cronin
was taken hostage and tortured, and at the time of his abduction Cronin
was a United States national. Finally, there is no question that if
officials of the United States engaged in the same conduct they would be
liable in a personal injury action. Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The FSIA explicitly permits plaintiffs to pursue "money damages which
may include economic damages, solatium, pain, and suffering, and punitive
damages if the acts were among those described in section 1605(a)(7)."
28 U.S.C. § 1605(a)(7) note. After reviewing the arguments presented
by the plaintiff, and the law applicable thereto, the Court makes the
following conclusions regarding damages.
1. Compensatory Damages
Although calculating damages is hard in many cases, doing so is
especially difficult in cases involving terrorist attacks. Indeed, the
Court recently observed that "there is no market where pain and suffering
are bought and sold, nor any standard by which compensation for it can be
definitely ascertained, or the amount actually endured can be
determined[.]" Weinstein v. Islamic Republic of Iran, 184 F. Supp.2d 13,
22 (D.D.C. 2002) (quoting St. Louis S.W.R. Co. v. Kendall, 169 S.W. 822,
824 (Ark. 1914). In cases where the plaintiff was held hostage, courts
typically have awarded compensatory damages on a per diem basis. See,
e.g., Jenco v. Islamic Republic of Iran, 154 F. Supp.2d 27, 37 (D.D.C.
2001); Daliberti, 146 F. Supp.2d at 25. "This formula grants the former
hostage roughly $10,000 for each day of his captivity." Jenco,
154 F. Supp.2d at 37. Thus, for example, the estate of Father Lawrence
Jenco, who was held hostage for 564 days, received $5,640,000 in
compensatory damages. Id.
This formula has not been applied in every hostage taking case brought
under the FSIA, however. In several cases, the Court has adjusted the
amount of the per diem award based on the severity of the maltreatment
suffered by the plaintiff, while in other cases the Court has not applied
a per diem approach at all because of the brevity of the captivity.
See, e.g., Stethem v. Islamic Republic of Iran, 201 F. Supp.2d 78, 87-89
(D.D.C. 2002) (awarding plaintiff severely beaten over a fifteen hour
period $500,000 for that pain and suffering); Higgins, 2000 WL 33674311 at
*8 (awarding approximately $57,000 per day of captivity to family of Army
colonel held by Hezbollah for 529 days prior to being executed.); Hill
v. Republic of Iraq, 175 F. Supp.2d 36, 48 (D.D.C. 2001) (awarding
Americans held by Iraq prior to Desert Storm between $3,000 and $5,000
per day of captivity and lump sum awards for psychological injuries
between $100,000 and $500,000).
In light of the severity of his beatings (which were greatly
exacerbated by his bowel obstruction) and the brevity of confinement
(four days), the Court finds that the per diem approach is not
appropriate in this case. Indeed, it would be a perverse application of
the formula to find that Cronin is only entitled to $40,000. Cf.
Langevine v. District of Columbia, 106 F.3d 1018 (D.C. Cir. 1997)
(upholding a jury verdict for $200,000 for pain and suffering resulting
from a false arrest and detention in a D.C. police station that lasted no
more than a day). Such a small award would not only utterly fail to
compensate Cronin for his injuries; it would essentially reward those
that committed these heinous acts for beating him so severely over such a
short period of time that he either had to be released after just a few
days or he would have died. Therefore, using other cases brought under
the FSIA as a benchmark, the Court finds that a lump sum award of
$1,200,000 is appropriate in this case. The defendants shall be jointly
and severally liable for this amount. Jenco, 154 F. Supp.2d at 40.
2. Punitive Damages
Cronin also seeks punitive damages against the MOIS. Punitive damages
are awarded to punish a defendant for particularly egregious conduct, and
to serve as a deterrent to future conduct of the same type. Restatement
(Second) Torts, § 908. The FSIA specifically provides courts with
the power to award punitive damages against an agency or instrumentality
of a foreign state in a case brought under section 1605(a)(7).
28 U.S.C. § 1606. In this case, the Court finds that both of these
requirements are easily satisfied. Cronin brought this action pursuant
to 28 U.S.C. § 1605(a)(7), and the Iranian Ministry of Information
and Security is an agency or instrumentality of the Islamic Republic of
Iran for purposes of the FSIA. Elahi, 124 F. Supp.2d 113;
28 U.S.C. § 1603(b) (defining an agent as an "organ of a foreign
state or political subdivision thereof.").
Having determined that the FSIA authorizes it to award punitive
damages, the Court must now decide whether they are warranted in this
case. The Restatement (Second) of Torts provides that punitive damages
are merited in cases involving "outrageous conduct." Here, the Court has
no difficulty finding that the depraved and uncivilized conduct of the
Iranian Ministry of Information and Security constitutes "outrageous"
conduct. The defendant organized, trained, and funded Amal, Islamic
Amal, and Hizbollah so that the organizations could torture and take
individuals like the plaintiff hostage. Under even the most restrictive
interpretation of the term, the defendant's actions in this matter are
clearly "outrageous" and warrant the imposition of punitive damages.
The Court must now determine the appropriate amount of punitive damages
to award against the Iranian Ministry of Information and Security. In
determining the amount of punitive damages to award, courts should
consider several factors, including: " the character of the
defendant's act,  the nature and extent of the harm to the plaintiff
that the defendant caused or intended to cause, and  the wealth of the
defendant." Restatement (Second) Torts § 908.
With respect to the first factor — the character of the
defendant's act — the Court has already detailed the heinous nature
of the defendant's conduct in this case. The defendant provided material
support and resources to Amal, Islamic Amal, and Hizbollah so that these
organizations could carry out terrorist acts such as the kidnapping and
torture of John Cronin. It provided these terrorists with the knowledge
and the funding necessary to carry out such terrorist attacks. With
respect to the second factor — the extent and nature of harm to the
plaintiff — the severity of the beatings that Cronin endured, as
well as the added pain and suffering he sustained as a result of the
bowel obstruction, were extreme. With respect
to the third factor
— the wealth of the defendant — the Court finds that the
Iranian Ministry of Information and Security has substantial amounts of
funds at its disposal. As the Court noted in Weinstein, "the Iranian
Ministry of Information and Security has approximately 30,000 employees
and is the largest intelligence agency in the Middle East. Moreover, its
annual budget is estimated to be between $100-$400 million." Weinstein,
184 F. Supp.2d at 25.
Based upon these factors, and consistent with punitive damage awards in
similar cases brought under 28 U.S.C. § 1605(a)(7), the Court will
award punitive damages in an amount equal to roughly three times the
defendant's estimated annual budget for their support of terrorism.
Surette, 2002 WL 31455114 at *12 (awarding $300,000,000); Stethem,
201 F. Supp.2d at 92-93 (same). According to Dr. Clawson, the defendant
spends approximately $100 million each year in support of organizations
like Hizbollah to support its terrorist activities. Ex. 2. Based on
this estimate, the Court will assess punitive damages against the MOIS in
the amount of $300,000,000.
The Court finds that the plaintiff has established his right to relief
as required by 28 U.S.C. § 1608(e), and will therefore enter a
judgment of default against Iran and the MOIS. The defendants are
jointly and severally liable for $1,200,000 in compensatory damages, and
the MOIS is liable for $300,000,000 in punitive damages.
A separate order shall issue this date.