United States District Court, D. Columbia.
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For NANCY WORLEY, On Behalf of Herself and as Personal Representative of the Estate of David Edward Worley, Plaintiff: Molly Patricia Hoffman, Thomas Fortune Fay, LEAD ATTORNEYS, William Coleman Dowden, III, Caragh Glenn Fay, FAY KAPLAN LAW, P.A., Washington, DC.
For DAVID WORLEY, BRYAN WORLEY, ESTHER BUCKMASTER, On Behalf of herself and Personal Representative of the Estate of John D. Buckmaster, ARLEY BUCKMASTER, VICKI BUCKMASTER, GARY BUCKMASTER, GREGG BUCKMASTER, NANCY CHIPURA, On Behalf of Herself and as Personal Representative of the Estate of John Chipura, GERARD CHIPURA, EILEEN CHIPURA CELLA, SUSAN COHEN, JAMES EDWARDS, On Behalf of Himself and as Personal Representative of the Estate of Roy Lee Edwards, LARRY EDWARDS, BETTY ROWE, GARY EDWARDS, RALPH EDWARDS, OLLIE JAMES EDWARDS, FREDA SUE GAYHEART, On Behalf of Herself and as Personal Representative of the Estate of Virgel Dean Hamilton, RAMONA SUE HAMILTON-GREEN, ROBERT P. HAMILTON, ROSCOE HAMILTON, KAREN CONTRILLO, On Behalf of Herself and as Personal Representative of the Estate of Richard Allen Morrow, PATRICIA ULAKVICH, DANNY WEST, MARIO VASQUEZ, JEFF DADICH, Plaintiffs: Molly Patricia Hoffman, Thomas Fortune Fay, William Coleman Dowden, III, LEAD ATTORNEYS, Caragh Glenn Fay, FAY KAPLAN LAW, P.A., Washington, DC.
For RAY EDWARDS, Plaintiff: Molly Patricia Hoffman, William Coleman Dowden, III, LEAD ATTORNEYS, Caragh Glenn Fay, FAY KAPLAN LAW, P.A., Washington, DC.
Royce C. Lamberth, United States District Judge.
This is one of many cases to have come before this Court arising out of the October 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon. Plaintiffs--servicemen, relatives of servicemen, and estates representing deceased members of these groups--seek to recover damages for injuries sustained in the attack and its aftermath from defendants the Islamic Republic of Iran and the Iranian Ministry of Information and Security (" MOIS" ).
Pending before the Court are plaintiffs' motion for default judgment on liability and their motions to appoint special masters. For the reasons that follow, the Court concludes that defendants are liable to plaintiffs for injuries arising out of the Beirut barracks bombing. Therefore, plaintiffs' motion for default judgment on liability is DENIED IN PART as to plaintiffs Ollie James Edwards and Jeff Dadich and GRANTED IN PART as to all other plaintiffs. The Court also concludes that Alan Balaran shall be appointed special master of the Court for consideration of the measure of damages appropriate for each plaintiff and for completion of such other duties as are specified in the Court's Order accompanying this Memorandum Opinion and also issued this date. Plaintiffs' motion to appoint Mr. Balaran is GRANTED. Plaintiffs' other motions to appoint special masters are DENIED.
I. PROCEDURAL HISTORY
Plaintiffs filed suit on December 28, 2012. Compl., ECF No. 1. Both jurisdiction and liability are premised on section 1605A of the Foreign Sovereign Immunities Act (" FSIA" ). 28 U.S.C. § 1605A. That section, often referred to as the state-sponsored terrorism exception to foreign sovereign immunity, furnishes a
private right of action to victims of state-sponsored terrorism who meet the statute's strict requirements.
Defendants were served with process on July 31, 2013, notifying them of the pendency of this litigation. ECF No. 17. Defendants did not appear or respond in any way. They have not done so to this day. The Clerk of the Court, upon an affidavit by plaintiffs in support thereof, entered default against defendants on May 23, 2014. ECF Nos. 20, 21. Plaintiffs have since moved for a default judgment against defendants. Pl.'s Renewed Mot. for Default J. on Liability, ECF No. 27. They have also moved for appointment of three special masters: Larry Searle Lapidis, Alan Balaran, and Ronald Hedges. Pl.'s Mot. to Appoint Special Master, ECF Nos. 23-27.
II. FINDINGS OF FACT
Before determining whether defendants should have a default judgment entered against them, the Court must consider evidence and make findings of fact with respect to plaintiffs' allegations. This is because section 1608(e) of the FSIA requires that no default judgment shall be entered against a foreign state or its political subdivision except upon " evidence satisfactory to the court." 28 U.S.C. § 1608(e). The Court, therefore, may not " simply accept a complaint's unsupported allegations as true." Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 171 (D.D.C. 2010). Courts may rely upon uncontroverted factual allegations that are supported by affidavits. Id. Also, courts may take judicial notice of prior related proceedings in cases before the same court. Id. Before the Court sets out its findings of fact, the basis for accepting this latter form of evidence warrants greater elaboration.
A. Judicial Notice of Prior, Related FSIA Cases
A court may " take judicial notice of, and give effect to, its own records in another but interrelated proceeding." Opati v. Republic of Sudan, Civil Action No. 12-1224 (JDB), ___ F.Supp.2d ___, 60 F.Supp.3d 68, 2014 WL 3687125, at *2 (D.D.C. July 25, 2014) (quoting Booth v. Fletcher, 101 F.2d 676, 679 n.2 (D.C. Cir. 1938)). This is in keeping with Federal Rule of Evidence 201(b), which allows a court to " judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). In light of this authority and the numerous FSIA cases in recent years giving rise to nearly identical factual and legal issues, this Court and others in this District have frequently taken judicial notice of earlier, related cases arising under the state sponsored terrorism exception to foreign sovereign immunity. See, e.g., Fain v. Islamic Republic of Iran, 856 F.Supp.2d 109, 115 (D.D.C. 2012) (citing cases).
The Court may not, however, simply adopt previous factual findings without scrutiny. This is because factual findings " represent merely a court's probabilistic determination as to what happened, rather than a first-hand account of the actual events." Id. at 116. As such, courts have concluded that findings of fact are generally considered hearsay, not subject to an enumerated exception to the prohibition on hearsay evidence in the federal rules. Rimkus, 750 F.Supp.2d at 172. This does not mean, however, that courts in later, related FSIA proceedings are given the " onerous burden of re-litigating key facts in related cases arising out of the same terrorist attack." Id. Instead, courts hearing related FSIA cases may " rely upon the evidence presented in earlier
litigation--without necessitating the formality of having that evidence reproduced--to reach their own, independent findings of fact in the cases before them." Id. As stated above, the records of this Court in related proceedings are not subject to reasonable dispute. See Opati, 2014 WL 3687125, at *2. Thus, the type and substance of evidence previously presented to this Court in prior proceedings may be judicially noticed in the process of reaching findings of fact in this case.
In Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46 (D.D.C. 2003), this Court presided over a two day bench trial of claims arising out of the Beirut barracks bombing. Id. at 48. The Court " reviewed the extensive evidence presented during that trial by both lay and expert witnesses" regarding the bombing and defendants' actions relating to it. Id. The Court will take judicial notice of that evidence in making its findings of fact in this case.
B. The United States Presence in Beirut
The 24th Marine Amphibious Unit (" the 24th MAU" ) of the United States Marines arrived in Beirut in 1983 as part of a multinational peacekeeping force comprised of American, British, French, and Italian soldiers. Id. at 49. Their presence was in response to an ongoing civil war in Lebanon, one that would kill approximately twenty thousand Lebanese before its conclusion. Id. Col. Timothy Geraghty, commander of the 24th MAU, testified before the Court in Peterson regarding their mission:
[E]ssentially what it was, it was primarily a peacekeeping mission and it was to show [our] presence, and when I say ours, and this is throughout all the forces, is that we were out showing a presence, [primarily] to provide stability to the area. And I might add that there's no doubt in just about anyone involved at the time, we saved a lot of lives by our presence there for awhile. And that was part of, I might add, in my judgment, the success of that, our presence mission there, and [that] it was working is the primary reason why we were targeted . . . .
The rules--these were geared primarily again with the peacekeeping mission [in mind] and the sensitivities of killing or maiming someone accidentally. That could be a tinderbox. That could start a whole chain of events.
Id. at 50 (alterations in original).
The " rules" referred to in Col. Geraghty's testimony, the rules of engagement applicable to the 24th MAU, " made clear that the servicemen possessed neither combatant nor police powers." See id. at 49 (finding that the " servicemen were ordered not to carry weapons with live rounds in their chambers, and were not authorized to chamber the rounds in their weapons unless (1) they were directly ordered to do so by a commissioned officer or (2) they found themselves in a situation requiring the immediate use of deadly force in self-defense" ). In light of this evidence, the Court finds, just as it did in Peterson, " that on October 23, 1983, the members of the 24th MAU, and the service members supporting the unit, were clearly non-combatants operating under peacetime rules of engagement." Id. at 50.
C. The Bombing
On the morning of October 23, 1983, an Iranian national named Ismalal Ascari crashed a truck containing a large explosive device through wire and sandbag barriers and into the center of the 24th MAU's barracks. Id. at 56. The truck's payload detonated with a force between
15,000 and 21,000 pounds of TNT, destroying the four story barracks building and leaving a crater over eight feet deep. Id. 241 servicemen died in the blast. Id. at 58. Many others were wounded. Id.
The attack resulted from a plan hatched by a group including the leader of the Lebanese headquarters of the Iranian Revolutionary Guard, an elite Iranian security and military force, and leaders of Hezbollah, a radical organization dedicated to the perpetration of " terrorist activities in furtherance of the transformation of Lebanon into an Islamic theocracy modeled after Iran." Id. at 51, 54 n.14, 55-56. The truck used to carry out the attack was " disguised so that it would resemble a water delivery truck that routinely arrived at the Beirut International Airport, which was located near the U.S. Marine barracks in Beirut." Id. at 56. Members of Hezbollah " ambushed the real water delivery truck before it arrived at the barracks," allowing the bomb carrying truck to carry on its mission without raising suspicion until it was too late. See id.
D. Defendants' Actions and Involvement
The Peterson Court received overwhelming evidence demonstrating that " Hezbollah and its agents received massive material and technical support from the Iranian government" in carrying out the Beirut attack and that the " formation and emergence of Hezbollah as a major terrorist organization is due to the government of Iran." Id. at 53, 58. The Court agrees that these findings are accurate and adopts them in this case. These findings are demonstrated by the following evidence.
1. Iran's role in Hezbollah's origins and operations
Hezbollah first began as a radical faction of Shi'ite Muslims in Lebanon, encouraged in 1982 to separate from more moderate members of the community by the Iranian government. Id. at 51. Experts testified to the Peterson Court that at the time of the Beirut bombing, Hezbollah was largely a " creature of the Iranian government," wholly dependent on the government's financial support and largely acting in furtherance of Iranian interests. Id. at 51-53; e.g. id. at 53 (recounting testimony stating that the internal politics of Hezbollah were such that " no one in the organization would have thought about carrying out an activity without Iranian approval and almost certainly Iranian orders" ). Indeed, Robert Baer, a case officer in the Directorate of Operations at the CIA at the time, testified to the Court that " Hezbollah wasn't 'formally' created until 1985; " before that date, it was merely " a bunch of agents of Iran." Id. at 52 n.10.
2. MOIS approval and instigation of the Beirut attack
MOIS was at the center of the relationship between Iran and Hezbollah. Originally formed as the secret police of the Shah of Iran, MOIS served as the " intelligence organization of the new government" after the 1979 revolution. Id. at 53. It was also the " primary agency through which the Iranian government both established and exercised operational control over Hezbollah." Id. Testimony at the Peterson trial established that MOIS approval would have been required before an operation like the Beirut attack. Id.
Such a message of approval did, in fact, issue regarding the barracks bombing. Admiral James A. Lyons, Deputy Chief of Naval Operations for Plans, Policy, and Operation at the time testified regarding the interception of a September 26, 1983 message between Tehran and Damascus. Id. at 54. The Court in Peterson described the message:
The message had been sent from MOIS to the Iranian ambassador to Syria, Ali Akbar Mohtashemi, who presently serves as an adviser to the president of Iran, Mohammad Khatami. The message directed the Iranian ambassador to contact Hussein Musawi, the leader of the terrorist group Islamic Amal, and to instruct him to have his group instigate attacks against the multinational coalition in Lebanon, and " to take a spectacular action against the United States Marines." Admiral Lyons testified that he has absolutely no doubt of the authenticity or reliability of the message, which he took immediately to the secretary of the navy and chief of naval operations, who viewed it, as he did, as a " 24-karat gold document."
Id. at 54 (footnotes omitted). Evidence presented to the Court showed that Ambassador Mohtashemi " did proceed to contact a member of the Iranian Revolutionary Guard . . . and instructed him to instigate the Marine barracks bombing." Id. at 54-55 (describing deposition testimony of a Hezbollah member who stated that Mohtashemi contacted the leader of the Lebanese headquarters of the Iranian Revolutionary Guard, the man who went on to help plan the attack with members of Hezbollah, as set forth above).
3. Iranian material support for Hezbollah and the Beirut attack
Between 1983 and 1988, " the government of Iran spent approximately $50 to $150 million financing terrorist organizations in the Near East." Id. at 51. Hezbollah was one entity to receive the benefit of Iran's sinister largesse. MOIS acted as a " conduit" for the provision of these funds to Hezbollah. Id. at 53.
Iran's support extended to the provision of training and maté riel. Dr. Reuven Paz, a scholar who had conducted extensive research on Islamist terrorist organizations, testified to the Peterson Court that during the creation of Hezbollah, members " started to be trained in training camps in the Bekaa Valley, where the main Iranian forces were located." Id. at 52. As to the supplies used in carrying out the barracks bombing, circumstantial evidence strongly indicates Iranian involvement. The bomb that caused the blast was composed of a large quantity of an explosive called pentaerythritol tetranitrate (" PETN" ), according to testimony from on-scene FBI forensic explosive investigator Danny A. Defenbaugh. Id. at 56-57. The PETN on board the truck was in " bulk form," meaning that it was of a raw type not generally available commercially. Id. at 56-57. Evidence indicated that " [i]n the Middle East, the bulk form of PETN is produced by state-sponsored manufacturers for military purposes." Id. at 57. Warren Parker, an explosives expert testifying before the Peterson Court, stated that the bombing could not have been carried out by a mere group of unsophisticated individuals because of the " significant amount" of " military-type explosive" involved and because " it was carried out so successfully and not bungled; " the latter point " enhance[d] the fact that somebody had practiced this before." Id. at 57-58.
In light of this evidence, the Court reaffirms its previous finding that the " sophistication demonstrated in the placement of an explosive charge in the center of the Marine barracks building and the devastating effect of the detonation of the charge indicates that it is highly unlikely that this attack could have resulted in such loss of life without the assistance of regular military forces, such as those of Iran." Id. at 58.
4. Iranian government involvement at the highest level
As set forth above, major Hezbollah operations at the time of the barracks bombing
would have required Iranian approval. Indeed, an intercepted message from MOIS to the Iranian ambassador in Syria appears to have instigated and approved the Beirut attack. Dr. Patrick Clawson, an Iranian affairs expert, testified that this MOIS approval would have come after a " discussion in the National Security Council which would involve the prime minister, and it would also have required the approval of Iran's supreme religious leader, Ayatollah Khomeini." Id. at 53 (basing this view on " detailed accounts about the approval process from other attacks at this time" ). Given this testimony, the Court finds that " MOIS was no rogue agency acting outside of the control and authority of the Iranian government." Id. Furthermore, the necessity of the approval of the ayatollah and the prime minister demonstrates that any MOIS act during this period supporting Hezbollah and the barracks bombing specifically is properly deemed an act of Iran's government. Id. at 54.
III. CONCLUSIONS OF LAW
A. Jurisdiction and Sovereign ...