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Salazar v. Islamic Republic of Iran

March 29, 2005

DONNA K. SALAZAR, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MARK E. SALAZAR, DECEASED, PLAINTIFF,
v.
ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

FINDINGS AND CONCLUSIONS

Plaintiff Donna K. Salazar ("plaintiff") is the widow of Mark E. Salazar, a decorated Army Staff Sergeant who was fatally injured in the bombing of the U.S. Embassy in Lebanon on April 18, 1983. She brought this action against the Islamic Republic of Iran ("Iran"), the Iranian Ministry of Information and Security ("MOIS"), the Iranian Islamic Revolutionary Guard Corps ("IRGC"), Hizbollah, and several former Iranian functionaries (collectively,"defendants"),*fn1 seeking compensatory damages for wrongful death, solatium, and intentional infliction of emotional distress, as well as punitive damages. Without identifying a specific source of state or federal law for the causes of action articulated in the complaint, plaintiff argued that defendants were subject to suit pursuant to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(7), and the so-called Flatow Amendment, 28 U.S.C. § 1605 note.*fn2 *fn3 Through diplomatic channels, plaintiff effectuated service on Iran, the MOIS, and the IRGC. Those defendants failed to appear, and the Clerk entered default against them. The Court held a bench trial on September 26, 2003, and received plaintiff's proposed findings of fact on January 7, 2004.

Subsequently, the Court of Appeals issued two decisions that, taken together, called into question the viability of plaintiff's claims, because their Complaint did not allege a viable cause of action against Iran, the MOIS, and the IRGC independent of the FSIA and the Flatow Amendment. See Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C. Cir. 2004) ("[N]either 28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two considered in tandem, creates a private right of action against a foreign government. Section 1605(a)(7) merely waives the immunity of a foreign state without creating a cause of action against it, and the Flatow Amendment only provides a private right of action against officials, employees, and agents of a foreign state, not against the foreign state itself."); Acree v. Republic of Iraq, 370 F.3d 41, 59-60 (D.C. Cir. 2004) (Cicippio-Puleo's holding applies also to suits against agencies or instrumentalities of a foreign state, and"generic common law" unmoored to any specific source of law cannot supply a federal cause of action for a plaintiff proceeding under the FSIA).*fn4 Pursuant to an Order of this Court, plaintiff then filed an Amended Complaint specifying causes of action under the laws of Utah, Illinois, and the District of Columbia. Plaintiff unsuccessfully attempted to serve the Amended Complaint on defendants by courier, and have since sent a copy of the

Amended Complaint to defendants by airmail service delivery through the U.S. Postal Service.*fn5

The Court finds that plaintiff's submissions and the trial record amply support the allegations of her Amended Complaint. Iran, the MOIS, and the IRGC directly and proximately caused the death of Mr. Salazar and have visited upon plaintiff immense personal and pecuniary loss. Accordingly, the Court concludes that once any remaining issues regarding the service of the amended complaint are resolved, judgment should be entered in favor of plaintiff on the wrongful death and intentional infliction of emotional distress counts in the Amended Complaint.

BACKGROUND

I. The Embassy Bombing*fn6

Several developments of the early 1980s contributed to the radicalization of certain Islamic fundamentalist elements in Lebanon's Shi'a Muslim community. First, in 1979, the Shah of Iran, an ally of the United States, was overthrown by the Ayatollah Ruhollah Khomeini and his followers, who set up a fundamentalist Islamic regime in Iran. One of the revolutionaries' objectives was to establish Iran as the preeminent power in the Middle East by, among other things, forcing the United States and other Western nations out of the region. Second, in the summer of 1982, Israel invaded southern Lebanon, putatively in order to prevent the Palestinian Liberation Organization from conducting terrorist activities across Lebanon's border with Israel. In the wake of these events, the nascent revolutionary government of Iran sought to export its anti- Western agenda by cultivating a Lebanese Shi'a terrorist group known variously as Hizbollah,*fn7 Islamic Jihad, Right Against Wrong, and the Revolutionary Justice Organization. See Dammarell v. Islamic Republic of Iran, 281 F. Supp. 2d 105, 110 (D.D.C. 2003). Iran provided Hizbollah with military arms, training, and other supplies, and issued propaganda to encourage Lebanese Shi'a Muslims to join the organization. Id.

Plaintiff put on expert witness testimony to show that Iran trained, outfitted, and financed Hizbollah under the auspices of the IRGC, a uniformed military and terrorist operations force that answered to the Ayatollah, the"supreme leader" of Iran's theocracy. Transcript of Bench Trial held Sept. 26, 2003 ("Tr.") at 34-36. While the IRGC operated with the diplomatic and material support of the Iranian state, it maintained some degree of formal independence from the government. Plaintiff's expert testified that the IRGC and the MOIS, the Iranian government's official state security apparatus, liaise with each other. They work with each other. Each of them have certain capabilities. The [MOIS] would be providing the [IRGC] with foreign currency, with diplomatic passports, with papers, with authority, for example, from Syria, who controlled the Bekaa Valley in Lebanon at the time and still does, for landing rights if the [IRGC] wanted to land supplies at Damascus or Beirut Airport. The [MOIS] would work through the embassy to obtain th[is] type of thing[].

Id. at 37-38. Likening the IRGC to Adolf Hitler's Sturm Abteilung (storm troopers) of the 1920s and 30s, plaintiff's expert characterized the IRGC as a"party militia" and"pretty autonomous on its own." Id. at 39-40.

With the support of the MOIS and the IRGC, Hizbollah undertook a series of terrorist acts directed at Westerners in the early 1980s. Dammarell, 281 F. Supp. 2d at 110. These included the kidnaping of David Dodge, then the Acting President of the American University of Beirut, the bombings of a United States Marine Corps barracks and French paratrooper base in October 1983, see Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46 (D.D.C. 2003), and various other high-profile hostage-taking operations. See Dammarell, 281 F. Supp. 2d at 110.

On April 18, 1983, an unidentified driver crashed a vehicle laden with explosives into the main entrance of the United States Embassy in Beirut. Upon crashing into the Embassy, the vehicle exploded with a force so powerful that seven floors in the center section of the crescentshaped building collapsed. Id. at 111. As a result of the blast and the resulting destruction of portions of the Embassy, sixty-three people, including seventeen United States citizens, were killed. Over one hundred others were injured. Id. The bombing was the first large-scale attack against a United States Embassy anywhere in the world.

At the time, it was not immediately clear who was responsible for the bombing. But by 1984, the State Department had concluded that"radical Lebanese Shi'a using the nom-de-guerre Islamic Jihad" and"operat[ing] with Iranian support and encouragement" were"responsible for the suicide attack against the U.S. Embassy." U.S. DEP'T OF STATE, 1993 PATTERNS OF GLOBAL TERRORISM at 11. Expert testimony received in the Dammarell case and now supplemented here confirmed the consensus of the United States intelligence community that Hizbollah had orchestrated and conducted the attack with the cooperation and support of Iran, the MOIS, and the IRGC. See 281 F. Supp. 2d at 112. The complexity of the attack, the materiel employed, contemporaneous Iranian directives identifying the Embassy as a valuable target, and the fact that ...


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