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Estate of John Doe, et al v. Islamic Republic of Iran

August 16, 2011

ESTATE OF JOHN DOE, ET AL., PLAINTIFFS,
v.
ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Twenty-eight years ago, on April 18, 1983, Shi'ite Muslim militants attacked the United States Embassy in Beirut, Lebanon, killing sixty-three people and injuring scores of others in an unprecedented assault on a U.S. diplomatic compound. On September 20, 1984, another attack targeted the new location of Embassy operations ("Embassy Annex") in another area of Beirut, killing at least eleven people and injuring over fifty individuals. These tragic facts have been recounted in several mass-tort lawsuits brought by the victims of this terrorism against the Islamic Republic of Iran ("Iran") and its Ministry of Information and Security ("MOIS"), as permitted by a 1996 amendment to the Foreign Sovereign Immunities Act ("FSIA") that revoked jurisdictional protection for terrorist-sponsoring governments. This area of law continues to evolve. Most recently, and relevant here, the National Defense Authorization Act for Fiscal Year 2008 amended the FSIA to permit foreign national employees of the United States government killed or injured while acting within the scope of their employment and their family members to sue a state sponsor of terrorism for injuries and damages resulting from an act of terrorism. Here, almost all plaintiffs are foreign national employees of the U.S. Government and their immediate family members. This Court is the first to address the claims of foreign national immediate family members of U.S. government employees under the 2008 FSIA amendments.

Background

Plaintiffs bring this case pursuant to section 1083 of the National Defense Authorization Act for Fiscal Year 2008 ("2008 NDAA" or "Act"), Pub. L. No. 110-181, § 1083, 122 Stat. 341 (2008) (codified at 28 U.S.C. §1605A (2009)), as a "Related Action" to Dammarell v. Islamic Republic of Iran, No. 01-2224, 2006 WL 2583043 (D.D.C. Sept. 7, 2006)*fn1 ; Salazar v. Islamic Republic of Iran, 370 F. Supp. 2d 105 (D.D.C. 2005), Wagner v. Islamic Republic of Iran, 172 F. Supp. 2d 128 (D.D.C. 2001), and Welch v. Islamic Republic of Iran, Civ. A. No. 01-863, 2007 U.S. Dist. LEXIS 99191 (D.D.C. Sept. 20, 2007), adopted by the district court in 2007 U.S. Dist. LEXIS 99192 (D.D.C. Oct. 15, 2007).

Plaintiffs are 58 foreign national employees of the U.S. Government and one U.S. national employee of the U.S. Government, who were working in the U.S. Embassy in Beirut, Lebanon, and were killed or injured as a result of the 1983 or 1984 terrorist attacks, and 255 of their immediate family members. Pl.'s Mot. for Summ. Judg. on Liability ("Pl.'s Mot.") [Docket Entry #31] at 1-2. Plaintiffs bring their claims against Iran and MOIS (collectively "Defendants") pursuant to the 2008 NDAA, which amended the FSIA to permit foreign national employees of the United States Government killed or injured while acting within the scope of their employment, members of the armed services, and their family members, to sue a state sponsor of terrorism for injuries and damages resulting from an act of terrorism. See 28 U.S.C. § 1605A(a)(2)(A)(ii)(II)&(III) (2009).

The U.S. government employee plaintiffs assert claims for wrongful death and/or personal injury pursuant to 28 U.S.C. § 1605A(c) and seek damages for economic loss, pain and suffering, and emotional distress. See Third Am. Comp. [Docket Entry #32] ¶¶ 363-67. Plaintiffs who are the immediate family members of these U.S. government employees assert claims for emotional distress and solatium or consortium pursuant to 28 U.S.C. § 1605A(c) or, in the alternative, pursuant to D.C. law (the law of the forum), Lebanese law (lex loci), or the law of the domicile of the Plaintiff at the time of the attack. Id. ¶¶ 368-76. The U.S. Government employees and family members who are deceased are each represented by a legal representative, who is an heir-at-law for the decedent and who seeks survival damages. Id. ¶¶ 377-80.

This Court and other courts in this district have held in several cases that defendants Iran and MOIS directed and facilitated the 1983 and 1984 attacks on the U.S. Embassy and therefore proximately caused the injuries sustained by the victims of those attacks. In each case, Iran and MOIS were held liable to the victims of these attacks and their immediate family members for compensatory damages. See Brewer v. Islamic Republic of Iran, 664 F. Supp. 2d 43, 47 (D.D.C. 2009) (1984 attack); Welch, 2007 U.S. Dist. LEXIS 99191, at *12-20. (1984 attack); Salazar, 370 F. Supp. 2d at 107-08 (1983 attack); Dammarell V, 2006 WL 2583043, at *1-2 (1983 attack); Wagner, 172 F. Supp. 2d at 133 (1984 attack). Here, the Court must again determine defendant's liability to this new class of plaintiffs, which requires an analysis of the jurisdictional grant and cause of action provided by the 2008 NDAA as it amended the FSIA.

Plaintiffs initiated this action on March 28, 2008, and effected service on November 18, 2009, in accordance with 28 U.S.C. § 1608(a)(4). Defendants failed to respond, and the Clerk of Court entered a default on January 29, 2010. Before plaintiffs can be awarded any relief, this Court must determine whether plaintiffs have established their claims "by evidence satisfactory to the court." 28 U.S.C. § 1608(e); see also Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C. Cir. 2003). In evaluating plaintiffs' claims, the Court "may accept [plaintiffs'] uncontroverted evidence as true and may rely on sworn affidavits." Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258, 268 (D.D.C. 2003). The Court is not required to hold an evidentiary hearing, see Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 78 (D.D.C. 2006), and "may take judicial notice of related proceedings and records in cases before the same court." Salazar, 370 F. Supp. 2d at 109 n.6. Based on the record herein, and relying upon related cases involving the same incident and defendants, this Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

On April 18, 1983, at approximately 1:05 p.m., an unidentified driver crashed a vehicle laden with hundreds of pounds of explosives into the main entrance of the United States Embassy in Beirut. See Exs. 4-9 *fn2 ; Dammarell IV, 404 F. Supp. 2d at 271. Upon crashing into the Embassy, the vehicle exploded with a force so powerful that seven floors in the center section of the crescent-shaped building collapsed, or "pancaked." Id. Portions of the Embassy, including the Marine security guard post, the cafeteria, the United States Information Service library, the personnel section, and the consular section, were completely destroyed by the blast. Id.; Exs. 16, 54. Other parts of the building were severely damaged. Id. As a result of the blast, at least fifty-two people were killed and more than thirty-four others were injured.*fn3 See Ex. 4.

Following the 1983 Attack, embassy operations were temporarily transferred to the Embassy Annex, in what was believed to be a safer part of the city. See Exs. 20, 52. Despite this precaution, on September 20, 1984, shortly before noon, another vehicle loaded with thousands of pounds of explosives was denoated just outside of the Annex ("the 1984 Attack," and together with the 1983 Attack, "the Attacks"). See, e.g., Ex. 20, 53, 11. The bomb severely damaged the Annex. See Exs. 20, 28. At least eleven people were killed, including several Lebanese citizens, and at least fifty-eight others were injured.*fn4 See Ex. 4, 5, 20.

The 1983 bombing was the first large-scale attack against a U.S. Embassy anywhere in the world. See Ex. 15 (Oakley Dep. Tr.) at 22; see also Ex. 16 (Tr. Vol. I at 121-22). At the time, it was not immediately clear who was responsible for the bombing. See, e.g., Ex. 17 (Tr. Vol. II at 27-28); Ex. 15 (Tr. Vol. I at 121). But by 1984, the U.S. State Department, in its annual publication "Patterns of Global Terrorism: 1983," noted 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[s] against the U.S. Embassy." See Ex. 27; Ex. 15 (Oakley Dep. Tr.) at 21:15-22:6 ("I am confident that the government of Iran was involved directly [in the 1983 bombing] by the Hisballah organization . . . I don't think there is any doubt."). The terrorist group Islamic Jihad has been known by various names, including Right Against Wrong, the Revolutionary Justice Organization and, perhaps most commonly, Hizbollah.*fn5 See Ex. 15 (Oakley Depo. Tr.) at 46. Ambassador Robert Oakley -- who, as the coordinator of the State Department's counterterrorism efforts, was tasked with assessing who was behind the 1983 Beirut Embassy bombing, see Ex. 15 (Oakley Dep. Tr.) at 9 -- testified that it ultimately became "very clear that Islamic Jihad [Hizbollah] was behind the bombing in 1983." Id. at 21. Ambassador Oakley further expressed "confiden[ce] that the government of Iran was involved directly in the Hisballah organization, which was created, armed, trained, protected, provided technical assistance by the Iranian Revolutionary Guards." Id. at 21.

Within about two weeks of the 1984 Attack, the investigation had uncovered satellite photo evidence indicating Iranian direction and planning of the Attack. Ex. 21; See Wagner, 172 F. Supp. 2d at 132. Both Attacks were consistent with Iran's pattern of targeting U.S. interests in the region, and the complexity of the attack upon the U.S. Embassy in Beirut evidenced Iran's central role in the attack. See Exs. 15, 17, 21, 26; Dammarell I, 281 F. Supp. 2d at 112. At the Dammarell evidentiary hearing, Dr. Patrick Clawson, Deputy Director of the Washington Institute for Near East Policy, see Ex. 17 (Tr. Vol. II at 3), and an expert in Iranian politics, the Iranian economy, and Iranian sponsorship of terrorism, testified:

[T]here's no question that Iran was responsible for the selection of the target, provided much of the information for how to carry out the bombing, the expertise for how to build the bomb, the political direction that said that this was an important target to bomb, provided financial support for the bombers. It has the Iranians' fingerprints all over it. . . .

[T]his was quite a sophisticated and large bomb against a well-guarded target. And at the time, the people from the Shi'a community who claimed responsibility for this were just getting into the business of having a militia and having -- and engaging in some kinds of bombings. They hadn't done a whole lot. They didn't have established expertise; they didn't have a group of people locally whom they could draw upon to do this.

And furthermore, at this time they were so dependant upon financial support from Iran, they had no independent means of financial support, and furthermore, they were so dependant upon political guidance from Iran, Iran was quite directly ordering what targets to do, what not to do.

Id. (Tr. Vol. II at 20-21).

The bombing of the U.S. Embassy in Beirut in April 1983 represented a turning point with respect to Iran-sponsored terrorism conducted in Lebanon by Hizbollah. As Ambassador Oakley testified at the Dammarell evidentiary hearing:

I think it was a seminal event in anti-U.S. terrorism[,] and Lebanon seems to be the easiest place for the Iranians to operate. As I've said before, they had several purposes, one was to drive the United States out of Lebanon, its military forces and also . . . cultural influence. Same thing is true of the French who were supporting universities there and also had military forces there as part of the Multinational Force. The Iranians wanted to drive us out so they could put in an Iranian Shiva revolutionary state. The second thing they wanted to do is to punish the United States for its support of Iraq, against Iran in the Iraq/Iran war, which at that stage was at its peak and the Iranians were at the losing end of it at that stage so they wanted to make it very, very clear they were going after us. The third thing they wanted to do was -- all of these were helped by blowing up our embassy, was to show the power which Iran and its supporters could generate. And here you have something that's not quite as powerful, but almost as the removal of the Shah as supported by the United States and indirectly by Israel. And finally they wanted to cement their relationship within the entire Middle East by showing what they could do against us, which made them a force throughout the [Muslim] world, if you will. . . . So it serve[d] several different purposes for the government of Iran and did so with a degree of success. [Although] we stood our ground, we weren't driven out of Lebanon at this stage. It was only later on when they blew up the [Marine] barracks, which was a huge shock to the American people that finally public and political pressure convinced the Reagan administration they should pull the U.S. forces out of Lebanon.

Ex. 15 (Oakley Dep. Tr.) at 50-52.

The 1979 Iranian revolution and the 1982 Israeli invasion of Lebanon led to a radicalization of Lebanon's Shi'ite community, and ultimately to the formation, by Iran, of Hizbollah. See Ex. 26; see also Ex. 17 (Dammarell Tr. Vol. II 9:16-19, Clawson Test.) ("Iran encourage[d] the formation of Hisballah to fight the Western presence in Lebanon, to engage in armed struggle against the Israelis, and also to agitate for Islamic law.") Iran provided Hizbollah with military arms, training, and other supplies, and issued propaganda to encourage Lebanese Shi'ites to join the organization. Dammarell IV, 404 F. Supp. 2d at 273. In fact, soldiers from Iran's elite military unit, the Revolutionary Guard, set up headquarters in Lebanon's Bekka Valley to train Hizbollah recruits. Id.; see also Ex. 15. By early 1985, the United States had "fresh and convincing evidence that radical elements highly placed within . . . the government of Iran [were] giving operational policy advice to terrorists in Lebanon, specifically terrorists operating under the name 'Islamic Jihad' or Hizbollah." Dammarell IV, 404 F. Supp. 2d at 273 (citing Oakley testimony).

Iran also provided Hizbollah with financial support. Id. Indeed, while support of Hizbollah was not specifically provided for in Iran's annual budget, "the supreme religious leader and the president openly acknowledged that Iran was providing financial support, in fact proudly acknowledged that Iran was providing the financial support" for Hizbollah. Id. (quoting Pl.'s Ex. 17 at 30). Dr. Clawson estimated that in 1983, the year of the Beirut Embassy bombing, Iran spent in the range of $50 million to $150 million on its terrorist efforts. See Ex. 17 at 31.

Hizbollah accomplished its terrorist acts not just with the support of the Iranian government generally, but with the specific assistance of MOIS. Id.; see also Ex. 17. An Iranian government ministry, MOIS was formally established by law in 1983 or 1984, although it had previously existed as an offshoot of the secret police under the regime of the former Shah of Iran. Id. As part of its operations, MOIS acted, and continues to act, as "a prime conduit to terrorist and extremist groups." Ex. 40; see also Exs. 39, 17. In Lebanon in particular, MOIS supported Hizbollah, nurturing it with "financial assistance, arms and training." Dammarell IV, 404 F. Supp. 2d at 273; see also Ex. 17 at 12. With this support, Hizbollah evolved into "one of the most capable and professional terrorist organizations in the world." Dammarell IV, 404 F. Supp. 2d at 273.

On January 19, 1984, President Reagan designated Iran as a state sponsor of terrorism. Id. This designation was in response to Iran's role in sponsoring a number of terrorist acts in Lebanon, including the Attacks at issue here. See id. Iran has ever since remained on the State Department list of state sponsors of terrorism. Id.; see also 22 C.F.R. § 126.1(d) (2011); 31 C.F.R. § 596.201 (2009). In fact, according to the Department of Defense, "[f]or over two decades, Iran's involvement in international terrorism has been unmatched by any other state. Iran remains the world's most capable and persistent state sponsor of terrorism." Dammarell IV, 404 F. Supp. 2d at 274; see also Ex. 40 (noting that "[t]he deep ties between Iran and the Lebanese Shia . . . indicate that Iran will not -- in the near term -- reduce its level of support to Hizballah . . . and other groups that engage in terrorism").

CONCLUSIONS OF LAW

I. LEGAL BACKGROUND

The "terrorism exception" to the FSIA was first enacted as part of the Mandatory Victims Restitution Act of 1996, which was itself part of the larger Antiterrorism and Effective Death Penalty Act of 1996. See Pub. L. No. 104-132, § 221(a)(1)(C), 110 Stat. 1214, 1241 (formerly codified at 28 U.S.C. § 1605(a)(7)). The exception permitted claims against foreign state sponsors of terrorism for acts of terrorism that resulted in personal injury or death, where either the claimant or victim was a United States citizen at the time of the terrorist act. See28 U.S.C. § 1605(a)(7) (2007). Shortly thereafter, Congress passed the so-called "Flatow Amendment" in the Omnibus Consolidated Appropriations Act of 1996. SeePub. L. 104-208, § 589, 110 Stat. 3009-1, 3009-172 (codified at 28 U.S.C. § 1605 note). Initially, some courts construed § 1605(a)(7) and the Flatow Amendment, read in tandem, as creating a federal cause of action against the foreign state sponsor of terrorism. See, e.g., Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 27 (D.D.C. 1998).

In Cicippio-Puleo v. Islamic Republic of Iran, the D.C. Circuit concluded that neither § 1605(a)(7) nor the Flatow Amendment itself created a cause of action against the foreign state. 353 F.3d 1024, 1027 (D.C. Cir. 2004). Instead of a federal cause of action, the D.C. Circuit directed plaintiffs to assert causes of action using "some other source of law, including state law." Id. at 1036; see, e.g., Dammarell II, 2005 WL 756090, at *33 (requiring plaintiffs post-Ciccippio-Puleo to amend their complaint to state causes of action under the law of the state in which they were domiciled at the time of their injuries). Hence, following Cicippio-Puleo, the FSIA "terrorism exception" began to serve as "a 'pass-through' to substantive causes of action against private individuals that may exist in federal, state or international law." Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 83 (D.D.C. 2006).

In some cases, applying relevant state law created "practical problems for litigants and the courts." Pl.'s Mot. at 10. Under applicable choice of law principles, district courts applied the state tort law of each individual plaintiff's domicile, which in many cases would involve several different states for the same terrorist incident. See, e.g., Dammarell IV, 404 F. Supp. 2d at 275-324 (applying the law of six states and the District of Columbia). This analysis resulted in different awards for similarly-situated plaintiffs, based on the substantive tort law distinctions between states for intentional infliction of emotional distress claims. See, e.g., Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25, 44-45 (D.D.C. 2007) (denying and dismissing intentional infliction of emotional distress claims of those family members domiciled in Pennsylvania and Louisiana, whose laws required the claimant to be present at the site of the event causing emotional distress).

To address these issues, Congress enacted section 1083 of the 2008 NDAA, which amended the "terrorism exception" and other related FSIA provisions. The Act repealed § 1605(a)(7) of Title 28 and replaced it with a separate section, § 1605A, which, among other things: (1) broadened the jurisdiction of federal courts to include claims by members of the U.S. armed forces and employees or contractors of the U.S. Government injured while performing their duties on behalf of the U.S. Government; and (2) created a federal statutory cause of action for those victims and their legal representatives against state sponsors of terrorism for terrorist acts committed by the State, its agents, or employees, thereby abrogating Cicippio-Puleo. See Simon v. Republic of Iraq, 529 F.3d 1187, 1190 (D.C. Cir. 2008), rev'd on other grounds, 129 S. Ct. 2183 (2009).

This case is the first to apply § 1605A to non-U.S. national plaintiffs who worked for the U.S. Government (and their non-U.S. national family members), who may now be entitled to compensation for personal injury and wrongful death suffered as the result of the terrorist attacks on the U.S. Embassy and Embassy Annex in Beirut in 1983 and 1984.

II. JURISDICTION UNDER THE FSIA

The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611, is the sole basis for obtaining jurisdiction over a foreign state in the United States. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989); Brewer, 664 F. Supp. 2d at 50. Although it provides that foreign states are generally immune from jurisdiction in U.S. courts, see 28 U.S.C. § 1604, a federal district court can obtain personal and subject matter jurisdiction over a foreign entity in the following circumstances. First, a court can obtain personal jurisdiction over a defendant if the plaintiff properly serves the defendant in accordance with 28 U.S.C. § 1608. See 28 U.S.C. § 1330(b). Second, subject matter jurisdiction exists if the defendant's conduct falls within one of the specific statutory exceptions to immunity. See 28 U.S.C. ...


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