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Rimkus v. Islamic Republic of Iran

November 16, 2010


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge,



This case arises out of the horrific June 25, 1996 bombing at Khobar Towers, a military residence at the United States military base in Dharhran, Saudi Arabia. The explosion, which reduced much of Building 131 of the residential complex to rubble, killed nineteen U.S. Air Force personnel, including Airman First Class Joseph Edward Rimkus, and injured hundreds of others. In June 2006, plaintiff Joseph J. Rimkus, the father of the deceased Airman Rimkus, filed suit under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602 et seq., alleging that defendants Islamic Republic of Iran ("Iran"), the Iranian Ministry of Information and Security ("MOIS"), and the Iranian Revolutionary Guard Corps ("IRGC") had provided material support and assistance to Saudi Hezbollah, the terrorist organization responsible for the bombing of Khobar Towers, and thus were subject to suit under the FSIA's "state-sponsored terrorism" exception, which at the time was codified at 28 U.S.C. § 1605(a)(7). This Court entered judgment against all three defendants on August 26, 2008, concluding that they "were responsible for the Khobar Towers bombing, and that Saudi Hezbollah carried out the attack under their direction." Rimkus v. Islamic Republic of Iran, 575 F. Supp. 2d 181, 189 (D.D.C. 2008) (Lamberth, J.) ("Rimkus I"). The Court then awarded Mr. Rimkus $5 million in compensatory damages for pain and suffering and loss of solatium. Id. at 198. The Court denied, however, punitive damages, holding that such an award was unavailable under either § 1605(a)(7) or Pub. L. 104-208, § 589, 110 (1996), 110 Stat. 3009-1, 3007-172 (codified at 28 U.S.C. § 1605 note) (the "Flatow Amendment"). Rimkus I, 575 F. Supp. 2d at 199--200.

While this original suit was pending before the Court, Congress enacted the National Defense Authorization Act for Fiscal Year 2008 ("NDAA"), which, among other things, eliminated the prior state-sponsored terrorism exception by repealing 28 U.S.C. § 1605(a)(7), and created a new exception codified in its own provision at 28 U.S.C. § 1605A. Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338--44 (2008). While this new section effected a significant number of changes in the law, most importantly for these purposes the new exception provides for the recovery of punitive damages in suits based on acts of terrorism. 28 U.S.C. § 1605A(c). Having been denied such recovery in Rimkus I, plaintiff now brings suit under § 1605A seeking an assessment of punitive damages against Iran, MOIS and IRGC. For the reasons set forth below, the Court finds that plaintiff has established a proper basis for such punitive measures, and awards damages as appropriate.


A. Prior Khobar Towers Litigation

While the history of this particular action is relatively brief, the history of litigation stemming from the bombing of Khobar Towers-much of which is directly related to this action-is extensive. In the early years of this decade, several different representatives and estates of a number of the individuals either killed or injured in the attack filed suit under § 1605(a)(7), seeking to hold Iran, MOIS and IRGC liable for the attack. After several consolidations, two primary cases emerged concerning the bombing. The first involved Paul Blais, a search and rescue coordinator enlisted in the Air Force who was severely injured in the explosion, and who-along with his mother and step-father-sought to recover damages stemming from those injuries. Blais v. Islamic Republic of Iran, 459 F. Supp. 2d 40, 46--51 (D.D.C. 2006). The second suit involved representatives and estates for 17 of the 19 Air Force personnel killed in the attack on the Towers. Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229, 248 (D.D.C. 2006) ("Heiser I"). Included among the plaintiffs in that case were the estate of Airman Rimkus, his mother and his siblings. Id. at 295--99.

Over years of litigation, the plaintiffs in both Blais and Heiser presented substantial evidence to the Court concerning the Khobar Towers bombing. In Blais, the plaintiffs submitted evidence concerning the investigations and opinions of Louis Freeh and Dale Watson. Mr. Freeh was the FBI Director at the time of the bombing, and under his direction the FBI "conducted a massive and thorough investigation of the attack, using over 250 agents." Blais, 459 F. Supp. 2d at 48. Mr. Watson was the Deputy Counterterrorism Chief of the FBI in 1996, and subsequent to the attack he became the Section Chief for all international terrorism at the Bureau. He was responsible "for day to day oversight of the FBI investigation" and has given sworn testimony concerning the results of the investigation. Id. In addition, Dr. Bruce Tefft, "one of the founding members of the CIA's counterterrorism bureau" and expert consultant on terrorism-related issues, was qualified as an expert and gave extensive testimony concerning the defendants' involvement in terrorist activities. Id. at 48--49. In Heiser, the evidence was even more extensive than in Blais, and was presented to a magistrate judge over the course of more than two weeks. Heiser I, 466 F. Supp. 2d at 250. Though relying on much of the same evidence as the plaintiffs in Blais, the Heiser plaintiffs were able to present live testimony from Mr. Freeh, as well as additional statements from Mr. Watson and Dr. Tefft. Id. at 253--54. In addition, the Heiser plaintiffs presented Dr. Patrick Clawson, a participant in a Commission investigating the Khobar Towers attack and an expert on Iranian support for terrorism. Id. at 253. The Court qualified Dr. Clawson as an expert, and received his testimony concerning "(1) the government of Iran; (2) Iran's sponsorship of terrorism; and (3) the Iranian economy." Id.

Based on all of the above evidence, as well as additional documentary and testimonial submissions, the Court in both Blais and Heiser concluded that "the Khobar Towers bombing was planned, funded, and sponsored by senior leadership in the government of the Islamic Republic of Iran; the IRGC had the responsibility of working with Saudi Hizbollah*fn1 to execute the plan, and the MOIS participated in the planning and funding of the attack." Id. at 265; Blais, 459 F. Supp. 2d at 48 (quoting with approval Dr. Tefft's conclusion that defendants "were responsible for planning and supporting the attack on the Khobar Towers"). The Court then determined and awarded the proper amounts of compensatory damages,*fn2 while denying punitive damages in both cases. Heiser I, 466 F. Supp. 2d at 269--70;*fn3 Blais, 459 F. supp. 2d at 58--61.

B. Rimkus I

Shortly before final judgment in Blais and Heiser, plaintiff Joseph J. Rimkus, father of the deceased Airman Rimkus, initiated a separate suit against defendants by filing a Complaint seeking "damages for intentional infliction of emotional distress... solatium... and punitive damages." Rimkus I, 575 F. Supp. 2d at 185. Following service of the Complaint and Summons, he moved the Court for default judgment, and requested that the Court take judicial notice of the earlier Blais and Heiser opinions-which had each been issued shortly after Mr. Rimkus filed suit. Id. at 186. Mr. Rimkus also moved into evidence substantial testimony from both proceedings. Id. at 186 n.2. The Court also held an evidentiary hearing, at which time Mr. Rimkus provided testimony about his relationship with his son, and the impact that Airman Rimkus' death had on him. Id. at 189--192.

Following this evidentiary hearing, but before the Court's opinion concerning liability and damages, Congress enacted the NDAA. That Act repealed the earlier state-sponsored terrorism exception-which formed the basis of Mr. Rimkus' suit-and replaced the exception with an entirely new and separate provision, codified at 28 U.S.C. § 1605A. Unlike its predecessor, which required plaintiffs in FSIA cases to articulate causes of action under state tort law, see In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 46 (D.D.C. 2009) ("In re Terrorism Litig.") (noting that plaintiffs in this period used § 1605(a)(7) "as a 'pass-through' to causes of action found in state tort law"), § 1605A sets forth a federal cause of action. Id. And unlike the Flatow Amendment, which had been effectively eliminated as an independent basis for punitive damage awards in FSIA cases by the D.C. Circuit's decision in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004), § 1605A provides that FSIA plaintiffs may recover punitive damages against foreign states. 28 U.S.C. § 1605A(c).

Principles of law concerning the retroactive application of statutes would generally have barred Mr. Rimkus from pursuing an action under the new state-sponsored terrorism exception. However, in passing the NDAA Congress gave FSIA plaintiffs in cases pending before the courts-such as Mr. Rimkus-an opportunity to have the newly-enacted provision retroactively applied to their cases. Specifically, the Act declares that [w]ith respect to any action that (i) was brought under section 1605(a)(7)... or [the Flatow Amendment] before the date of enactment of this Act, (ii) relied upon either such provision as creating a cause of action, (iii) has been adversely affected on the grounds that either or both of these provisions fail to create a cause of action... and (iv)... is before the courts in any form... that action shall... on motion made by plaintiffs... be given effect as if the action had originally been filed under section 1605A(c).

NDAA § 1083(c)(2). Mr. Rimkus, however, declined to pursue this course, and the Court proceeded under former § 1065(a)(7). See Simon v. Republic of Iraq, 529 F.3d 1187, 1192 (D.C. Cir. 2008) (holding that courts maintain jurisdiction over cases pending under § 1065(a)(7) prior to passage of the NDAA).

By opinion dated August 26, 2008, the Court found defendants culpable for the bombing of the residential facility at Khobar Towers, and thus liable to Mr. Rimkus for the death of his son. Rimkus I, 575 F. Supp. 2d at 193. At that time, the Court made numerous findings of fact concerning the involvement of defendants Iran, MOIS and IRGC in the Khobar Towers bombing, relying principally on the evidence presented in Blais and Heiser. See id. at 186--89. The Court also evaluated the testimony of Mr. Rimkus concerning his relationship with his son, and the impact that Airman Rimkus' death had upon him. See id. at 189--93. Based on its findings of fact, the Court used former § 1605(a)(7) as a jurisdictional pass-through and concluded that defendants were liable to Mr. Rimkus based on theories of civil conspiracy and intentional infliction of emotional distress under Missouri law.*fn4 Id. at 196--97. The Court granted Mr. Rimkus compensatory damages for the "severe emotional anguish and suffering" he had suffered as a result of his son's brutal murder, awarding $5 million. Id. at 198. The Court denied Mr. Rimkus' request for punitive damages. See id. at 198--200.*fn5

C. This Action

Less than a month after this Court issued its opinion in Rimkus I, plaintiff commenced the separate, related action based on the same facts as that case but proceeding under § 1065A. Complaint, Sep. 19, 2009 [1]. In the Complaint, plaintiff re-alleges the same basic facts that had been found by the Court in Rimkus I, and sets forth an "Action for Damages Under 28 U.S.C. § 1605A(c)." Id. at 1--6. To support this claim, plaintiff alleges, inter alia, that "Iran and other defendants provided material support and resources... which caused and facilitated the terrorist bombing," id. at ¶ 26, that the bombing "was an extra-judicial killing within the meaning of 28 U.S.C. § 1605A," id. at ¶ 29, and that plaintiff suffered injuries as a "direct and proximate result" of the defendants' conduct. Id. at ¶¶ 30--31. Plaintiff seeks $2 billion in punitive damages in relief. Id. at 8.

Plaintiff served copies of the relevant papers, along with translations, by diplomatic channels through the U.S. Department of State, as required by 28 U.S.C. § 1608(a)(4). According to the diplomatic note, service was effected September 28, 2009. Return of Service/Affidavit, Jan. 19, 2010 [12].*fn6 Under the terms of § 1605A, defendants had 60 days from that date-until November 30, 2009-to respond. 28 U.S.C. § 1608(d). In early 2010, after none of the defendants had appeared or responded to the Complaint, the Clerk of the Court entered default. Clerk's Entry of Default, Jan. 25, 2010 [14]. Plaintiff subsequently requested that this Court take judicial notice of the proceedings in Blais, Heiser, and Rimkus I, and moved for default judgment. Motion for Default Judgment, May 16, 2010 [17]. Based on that motion, the record, and facts available for judicial notice, the Court makes the following findings of fact and conclusions of law.


Default was entered by the Clerk of the Court on January 25, 2010. However, prior to entry of a final default judgment, the FSIA requires that the Court evaluate plaintiff's case to ensure that he has "establishe[d] his claim or right to relief by evidence that is satisfactory to the court." 28 U.S.C. § 1608(e). This requirement imposes a duty on FSIA courts to not simply accept a complaint's unsupported allegations as true, and obligates courts to "inquire further before entering judgment" against parties in default. Oveissi, 498 F. Supp. 2d at 272.

In support of default judgment, courts in FSIA cases may look to numerous evidentiary sources to satisfy their statutory obligation. As an initial matter, a court can rely upon plaintiff's "'uncontroverted factual allegations, which are supported by... documentary and affidavit evidence.'" Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 59 (D.D.C. 2010) (alteration in original; quoting Int'l Road Fed'n v. Democratic Republic of the Congo, 131 F. Supp. 2d 248, 252 n.4 (D.D.C. 2001)). Moreover, in addition to traditional documentary and testimonial evidence in the record, upon which the court may rely, plaintiffs in FSIA cases may also submit evidence in the form of affidavits. Blais, 459 F. Supp. 2d at 53 (citing Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 82 (D.D.C. 2006)). Finally, a court may "'take judicial notice of related proceedings and records in cases before the same court.'" Valore, 700 F. Supp. 2d at 59 (quoting Brewer v. Islamic Republic of Iran, 664 F. Supp. 2d 43, 50--51 (D.D.C. 2009)). Here, plaintiff relies entirely on this final form of evidence in support of his motion for default judgment.

A. Judicial Notice of Prior Related Cases

Federal Rule of Evidence 201(b) permits courts to take judicial notice of facts that are "not subject to reasonable dispute" and that are "either (1) generally known within the territorial jurisdiction... or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Courts may take such notice whether it is requested by the party or not. Id. at 201(c)--(d). This ability to take notice of adjudicative facts extends to judicial notice of court records in related proceedings. 29 Am. Jur. 2d Evidence § 151 (2010); see also Booth v. Fletcher, 101 F.2d 676. 679 n.2 (D.C. Cir. 1938) ("A court may take judicial notice of, and give effect to, its own records in another but interrelated proceeding...."); 2 McCormick on Evid. § 332 (6th ed. 2009) (noting that principle permitting courts to take judicial notice of current proceeding "is equally applicable to matters of record in the proceedings in other cases in the same court"). Because of the multiplicity of FSIA-related litigation in this jurisdiction, Courts in this District have thus frequently taken judicial notice of earlier, related proceedings. See, e.g., Murphy v. Islamic Republic of Iran, ___ F. Supp. 2d ___, No. 06 Civ. 596, 2010 U.S. Dist. LEXIS 101250, at *11 (D.D.C. Sep. 24, 2010); Brewer v. Islamic Republic of Iran, 664 F. Supp. 2d 43, 50--51 (D.D.C. 2009); Heiser I, 466 F. Supp. 2d at 267.

The difficult issue concerning judicial notice of prior proceedings is the effect of that notice. In particular, a significant question arises concerning whether courts taking notice of prior proceedings may do so for the purpose of accepting the truth of the earlier court's findings and conclusions. While the D.C. Circuit has not had occasion to consider this issue, Courts of Appeals in several circuits have considered the issue and-while not issuing any per se rule- have generally agreed that judicial notice of such findings and conclusions is improper. See Murphy, ___ F. Supp. 2d at __, 2010 U.S. Dist. LEXIS 101250 at *11 (collecting cases).

The rationale supporting this consensus is straightforward: Suppose the parties to a case dispute whether a car at issue was blue or red. The Court, based on the evidence before it, makes a finding that the car was blue. While that finding may control the resolution of the dispute before the Court, the finding cannot, in fact, make the car blue. See United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) ("Although these findings [that Jones refused to come to work] support [the judge's] denial of the motion before him, they do not indisputably establish that Jones refused to work."). In short, judicial findings are probabilistic determinations based upon a limited set of data points-the evidence before the Court-they are not indisputable facts. For this reason, courts have generally concluded that "[f]indings of fact by a judge are hearsay and not subject to any exception enumerated by the Federal Rules of Evidence." Ahtridge v. Aetna Cas. & Sur. Co., 474 F. Supp. 2d 102, 110 (D.D.C. 2007) (citing Jones, 29 F.3d at 1554).*fn7

The benefits of judicially noticing related proceedings in FSIA cases would be essentially nullified if hearsay principles prevent courts from using the prior findings of fact in subsequent litigation. Thus, when evaluating this concern, the Court must be mindful that the statutory obligation found in § 1608(e) was not designed to impose the onerous burden of re-litigating key facts in related cases arising out of the same terrorist attack. Brewer, 664 F. Supp. 2d at 54. Rather, the requirement was intended to ensure that the courts give proper deference to the political branches' predominant role in foreign affairs by pausing to ensure the validity of their actions before undertaking the substantial step of piercing sovereign immunity and entering judgment against a foreign state. Mindful of these interests, courts in FSIA litigation have adopted a middle-ground approach that permits courts in subsequent related cases to 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. See Murphy, ___ F. Supp. 2d at __, 2010 U.S. Dist. LEXIS 101250 at *11 ("[T]he Court may review evidence considered in an opinion that is judicially noticed, without necessitating the representment of such evidence."). This is permissible because the validity of judicial records is generally "not subject to reasonable dispute," and such records are perfectly capable of establishing the type and substance of evidence that was presented to earlier courts. The objective issue of what that evidence was-rather than the subjective determination of what that evidence means-is thus a proper exercise of judicial notice.

B. Relevant Findings of Fact

Mr. Rimkus' suit arises out of an event-the bombing of Khobar Towers in 1996-that has been the subject of several previous FSIA actions before this Court, and in support of his allegations he asks this Court to take judicial notice of the evidence and findings of related litigations. Bearing in mind the parameters for judicial notice in FSIA actions set forth above, the Court takes notice of the evidence presented in Blais, Heiser I, and Rimkus I, and-based on such evidence-renders the following findings of fact:

Joseph E. Rimkus

Documentary evidence establishes that Airman First Class Joseph Edward Rimkus was a 22 year-old naturally-born citizen of the United States at the time of his death. Rimkus I, 575 F. Supp. 2d at 186. At that time he was a trained weapons technician attached to the 58th Fighter Squadron at Eglin Air Force Base in Florida, and was on assignment in Dhahran, Saudi Arabia. Id. While stationed in Dhahran, he resided in Building 131 of the Khobar Towers complex. Id. at 187. Documents demonstrate that Airman Rimkus, as well as the entire U.S. ...

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