United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
eighteen years ago, a terrorist attack on a Jerusalem bus
killed two teenage children and wounded scores more. Ten
plaintiffs - injured victims of that attack and their
families - now come before this Court seeking recompense for
their physical and psychological injuries. Specifically,
Plaintiffs seek to hold the Islamic Republic of Iran and the
Islamic Revolutionary Guard Corps liable for damages under
the terrorism exception to the Foreign Sovereign Immunities
Act. As both Defendants failed to appear, default was entered
last year. It now falls to the Court to determine whether to
award default judgment and, if so, what damages are
the link between Defendants and the gunman plain, the first
task is easy. Determining a fair amount of damages,
conversely, requires a difficult weighing of relative
injuries. The Court ultimately holds that individual sums of
$400, 000 to $2, 500, 000 are appropriate, yielding a total
of $10, 050, 000.
afternoon of November 4, 2001, a Palestinian gunman opened
fire on an Israeli bus traveling through the French Hill
neighborhood of Jerusalem. See ECF No. 21
(Declaration of D r. Harel Chorev), ¶ 24. Two
passengers, 14-year-old Menashe Regev and 16-year-old
Shoshana Ben Yishai, were killed; around 45 others were
injured. Id. Shortly thereafter, the Palestinian
Islamic Jihad (PIJ) claimed official responsibility for the
attack. Id., ¶ 25.
Plaintiffs in this case are dual U.S.-Israeli citizens from
the Schertzman and Miller families. The seven Schertzman
Plaintiffs consist of Ilana Schertzman Cohen - who was aboard
the bus and injured in the attack - and six of her immediate
family members who were not present. The three Miller
Plaintiffs are Myriam Miller and her two children, all of
whom were passengers. As detailed below, Ilana was hit by
shrapnel and the three Millers were struck by glass and
thrown around the bus. One of the Miller children, Chana
Aidel, later married Schertzman Plaintiff Yehuda Schertzman;
the Court refers to two distinct families only for
descriptive clarity. In addition, for ease of distinction and
with no disrespect intended, the Court often refers to
Plaintiffs by their first names.
filed suit against Iran and the IRGC on June 20, 2017.
See ECF No. 1 (Complaint), ¶ 1. The Clerk of
the Court certified that translated copies of the summons and
Complaint were sent by DHL to both Defendants, see
ECF No. 8 (Certificate of Mailing), but both refused delivery
and returned the summons unexecuted. See ECF Nos. 10
(Iran Summons Return) and 11 (IRGC Summons Return).
Undeterred, the Clerk transmitted the service documents to
the U.S. State Department on February 5, 2018, see
ECF No. 13 (Certificate of Mailing to State), which forwarded
them to Iran's Ministry of Foreign Affairs through the
Swiss Embassy in Tehran. See ECF No. 15 (Service
Affidavit). Service was thereby effective under 28 U.S.C.
§ 1608(c)(1). True to form, both Defendants failed to
answer the Complaint. As a result, Plaintiffs on June 12,
2018, requested an entry of default. See ECF No. 16
(Affidavit for Default). The Clerk did so on June 28.
See ECF No. 17.
then moved for default judgment. See ECF No. 18.
This Court held an evidentiary hearing on June 4, 2019, where
it heard testimony from all Plaintiffs, as well as from
experts Dr. Harel Chorev and Dr. Patrick L. Clawson.
See June 4, 2019, Minute Entry. Having carefully
weighed Plaintiffs' written statements and testimony, the
Court now decides both liability and damages.
states are generally immune from suit in federal court,
subject to exceptions codified in the Foreign Sovereign
Immunities Act. See 28 U.S.C. § 1604; see
also Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 439 (1989) (“[T]he FSIA [is] the sole
basis for obtaining jurisdiction over a foreign state in
federal court.”). Relevant here is § 1605A, the
so-called “terrorism exception” to the FSIA.
See Fraenkel v. Islamic Republic of Iran, 892 F.3d
348, 352 (D.C. Cir. 2018). This section provides federal
courts with jurisdiction over suits where plaintiffs seek
money damages from a foreign state for “personal injury
or death that was caused by an act of torture, extrajudicial
killing, aircraft sabotage, hostage taking, or the provision
of material support or resources for such an act.” 28
U.S.C. § 1605A(a)(1). It also creates a cause of action
for “national[s] of the United States” to sue
foreign states that are designated by the U.S. government as
sponsors of terrorism and perform or materially support the
acts described in 28 U.S.C. § 1605A(a)(1). Id.,
§ 1605A(c). The statute specifies that, “[i]n any
such action, damages may include economic damages, solatium,
pain and suffering, and punitive damages.”
Id.; accord Fraenkel, 892 F.3d at 353.
obtain a default judgment in such an action, plaintiffs must
establish their claims “by evidence satisfactory to the
court.” 28 U.S.C. § 1608(e). Plaintiffs who are
successful may then recover damages by showing “that
the projected consequences are reasonably certain (i.e., more
likely than not) to occur, and [proving] the amount of
damages by a reasonable estimate.” Fraenkel,
892 F.3d at 353 (quoting Hill v. Republic of Iraq,
328 F.3d 680, 684 (D.C. Cir. 2003)). While these requirements
create “some protection against an unfounded default
judgment, ” plaintiffs need not produce “more or
different evidence than [a court] would ordinarily receive;
indeed, the quantum and quality of evidence that might
satisfy a court can be less than that normally
required.” Id (citation omitted).
Court's analysis proceeds in three parts. It begins by
clearing some jurisdictional underbrush, then evaluates
Defendants' liability, and finishes with a determination
of appropriate damage awards.
FSIA both gives this Court subject-matter jurisdiction and
waives Defendants' sovereign immunity, subject to
conditions Plaintiffs have met. Defendants also have been
properly served under 28 U.S.C. § 1608(a). The Court,
accordingly, is satisfied that it has jurisdiction over the
state-sponsored-terrorism exception to the FSIA provides
federal courts with subject-matter jurisdiction over suits
against a foreign state only where (1) “money damages
are sought” (2) “against a foreign state
for” (3) “personal injury or death that”
(4) “was caused” (5) “by an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking, or
the provision of material support or resources for such an
act.” 28 U.S.C. § 1605A(a)(1); see also
Oveissi v. Islamic Republic of Iran, 879 F.Supp.2d 44,
50-51 (D.D.C. 2012); Wultz v. Islamic Republic of
Iran, 864 F.Supp.2d 24, 32 (D.D.C. 2012).
five conditions are met here. First, Plaintiffs seek only
money damages. See Compl. at 18. Second, Iran and
the IRGC qualify as foreign states. Courts in this district
have held on multiple occasions that the IRGC is part of the
Iranian government, and this Court agrees. See Ben-Rafael
v. Islamic Republic of Iran, 718 F.Supp.2d 25, 32
(D.D.C. 2010) (“All of the cases that have actually
discussed the issue have found the IRGC to be part of the
Iranian government, not an agency or instrumentality
thereof.”); Pl. Hrg. Exh. 14 (Declaration of Dr.
Patrick L. Clawson), ¶¶ 23-25. Third, Plaintiffs
allege personal injuries including physical harm and familial
mental anguish. See Compl., ¶¶ 25-68.
the fourth element, Plaintiffs have met the causation showing
required by the FSIA - namely, that Defendants' provision
of material support caused their injuries. The Act requires
only that Plaintiffs show “some reasonable connection
between the act or omission of the defendant and the damages
[that] the plaintiff has suffered.” Valore v.
Islamic Republic of Iran, 700 F.Supp.2d 52, 66 (D.D.C.
2010) (citation omitted). This they have done. As discussed
in detail below, Dr. Chorev testified that the PIJ carried
out the attack that injured Plaintiffs, and D r. Clawson
testified that Iran and the IRGC provided substantial
material support to the PIJ during the relevant period.
See Chorev Decl., ¶ 38; Clawson Decl., ¶
58. Courts in this district, moreover, have repeatedly noted
Iran's support for the PIJ during and around this time.
See, e.g., Wultz, 864 F.Supp.2d at 30
(describing Iranian funding for PIJ from 1990s through
mid-2000s); Belkin v. Islamic Republic of Iran, 667
F.Supp.2d 8, 16 (D.D.C. 2009) (stating scholarly consensus is
that PIJ was “heavily dependent” on Iranian
support through turn of this century). The Court thus finds a
reasonable connection between Defendants' actions and the
damages Plaintiffs suffered.
and finally, the attack constituted an “extrajudicial
killing” within the meaning of the Act. Not only were
two teenagers killed on the bus, but this district's
prior rulings hold that the FSIA terrorism exception
encompasses attempted extrajudicial killings, which
clearly occurred here. See, e.g., Gill v.
Islamic Republic of Iran, 249 F.Supp.3d 88, 99 (D.D.C.
2017); Cohen v. Islamic Republic of Iran, 238