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W.A. v. Islamic Republic of Iran

United States District Court, District of Columbia

December 16, 2019

W.A., et al., Plaintiffs
v.
Islamic Republic of Iran, et al., Defendant

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         This case arises from the kidnapping, torture, and murder of S.F. in Baghdad, Iraq in May 2006. The estate and family members of the deceased claim that he was kidnapped, tortured, and murdered by the Badr Organization of Reconstruction and Development (“Badr Organization”). Proceeding under the Foreign Sovereign Immunities Act (“FSIA”), Plaintiffs allege that Defendant the Islamic Republic of Iran (“Iran”) formed, trained, funded, supplied, and directed the Badr Organization and accordingly should be held liable for the kidnapping, torture, and death of S.F. The Court agrees.

         Iran has not answered or otherwise participated in this litigation. The case accordingly proceeded in a default setting. The Court held a liability hearing on December 5, 2019. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court now determines that Plaintiffs have established their claims by evidence satisfactory to the Court. Accordingly, the Court will GRANT default judgment against Iran as to all Plaintiffs with the exception of Plaintiff B.S. The Court has made findings as to the effects of S.F.'s kidnapping, torture, and murder on Plaintiffs. The Court will refer the issue of specific money damages to Magistrate Judge Michael Harvey.

         I. BACKGROUND

         Plaintiffs filed this lawsuit on August 10, 2018. Compl., ECF No. 1. On the Court's order, between August 2018 and May 2019 Plaintiffs filed a series of status reports updating the Court on their efforts to effectuate service on Iran. ECF Nos. 11, 17, 21, 24.[1] On May 10, 2019, Plaintiffs filed a Status Report informing the Court that they had completed service through foreign mailing and diplomatic service. ECF No. 24. Plaintiffs requested entry of default which was granted by the Clerk of the Court on May 10, 2019. ECF No. 25.

         The Court held a liability hearing on December 5, 2019, at which Plaintiffs offered documentary evidence, and presented the testimony of fact and expert witnesses. The two fact witnesses were Plaintiffs M.S. and S.S., S.F.'s two eldest sons. The two expert witnesses were Stuart Bowen and Michael Pregent, both senior fellows on intelligence operations in the Middle East with the Hudson Institute. This hearing primarily concerned Defendants' liability. However, the two fact witnesses also presented evidence as to their damages. The remaining Plaintiffs have filed affidavits as to their damages.

         II. LEGAL STANDARD

         The entry of default judgment is governed by Federal Rule of Civil Procedure 55. “The determination of whether a default judgment is appropriate is committed to the discretion of the trial court.” Hanley-Wood LLC v. Hanley Wood LLC, 783 F.Supp.2d 147, 150 (D.D.C. 2011) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)). Before granting default judgment, the Court must satisfy itself of its jurisdiction, and “[t]he party seeking default judgment has the burden of establishing both subject matter jurisdiction over the claims and personal jurisdiction over the defendants.” Thuneibat v. Syrian Arab Republic, 167 F.Supp.3d 22, 33 (D.D.C. 2016).

         Under the FSIA specifically, this Court cannot enter default judgment against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); see Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C. Cir. 2003) (“The court . . . has an obligation to satisfy itself that plaintiffs have established a right to relief.”). “[T]he FSIA leaves it to the court to determine precisely how much and what kinds of evidence the plaintiff must provide, ” Han Kim v. Democratic People's Republic of Korea, 774 F.3d 1044, 1047 (D.C. Cir. 2014), and “[u]ncontroverted factual allegations that are supported by admissible evidence are taken as true, ” Thuneibat, 167 F.Supp.3d at 33.

         III. FINDINGS OF FACT

         The following Findings of Fact recount horrific events. They detail the kidnapping, torture, and extrajudicial killing of an Iraqi contractor purposefully targeted because of the services he was performing for the United States. As discussed further below, in addition to expert testimony received by the Court, two of S.F.'s sons, M.S. and S.S., testified at the Court's December 5, 2019 hearing regarding the circumstances surrounding the death of S.F. as well as the effect that his death has had on their lives. The Court appreciates that testifying was extremely difficult for both witnesses, as it required them to publicly revisit what was likely the most tragic event in their lives. The Court further expresses its admiration for the witnesses, both of whom faced extraordinarily difficult circumstances and have gone on to become United States citizens and productive members of our society. Both witnesses explained that, in bringing this lawsuit, they hoped to “honor [their] dad's legacy.” Tr. 103: 20-21. They further expressed that they “believe in [the] rule of law” and seek to hold Iran responsible for their father's kidnapping, torture, and untimely death through the United States justice system. Tr. 103: 19. The Court hopes that the results of this lawsuit may provide Plaintiffs some measure of closure moving forward.

         A. The Court's Findings of Fact

         The Court's Findings of Fact are based on testimony presented at the liability hearing held in this matter on December 5, 2019, as well as evidence submitted at and prior to that hearing. The Court's findings fall into two overarching categories: (1) the Badr Organization and Iran's material support for it, and (2) how that support resulted in the kidnapping, torture, and death of S.F.

         1. Iran's Material Support for the Badr Organization

         The Court finds that Iran provided material support to the Badr Organization throughout the relevant time period. In making this determination, the Court considers the testimony of experts Stuart Bowen and Michael Pregent as well as the expert affidavit of Mr. Bowen. Having considered the requirements set forth in Federal Rule of Evidence 702 for the admission of expert testimony, at the December 5, 2019 hearing, the Court qualified Mr. Bowen as an expert in the following areas: Iraqi politics after the overthrow of Saddam Hussein, including Iraqi political factions and the influence of the Shia militias; the history of the Shia militia insurgencies in post-invasion Iraq; and Iranian influence in Iraq, particularly through the Badr Organization. Tr. 174: 17-25. The Court also qualified Mr. Pregent as an expert in the following areas: Shia militias in Iraq, including the Badr Organization; and Iranian influence within the Iraqi government following the fall of Saddam Hussein in 2003. Tr. 210: 9-15.

         Originally called the Badr Brigade, the Badr Organization was founded by Hadi al-Amiri in 1982 as the military wing of the Supreme Council of the Islamic Revolution in Iraq (“SCIRI”). Expert Affidavit of Stuart Bowen, ECF No. 29-1, ¶ 15. Al-Amiri had dual citizenship with Iraq and Iran. Tr. 178: 17-18. Initially, Al-Amiri and the Badr Organization fought for Iran against Iraq in the Iran-Iraq War from 1981 through 1988. Expert Affidavit of Stuart Bowen, ECF No. 29-1, ¶ 17; Ex. 13, Colonel Joel D. Rayburn et al., The U.S. Army in the Iraq War: Volume 1 2003-2006 14 (2019) (explaining that the Badr Organization was “[f]ormed by the Iranian regime during the Iran-Iraq war”). The Badr Organization received support from SCIRI and its leader, who was exiled in Iran. Expert Affidavit of Stuart Bowen, ECF No. 29-1, ¶ 17. The Badr Organization was further “funded, equipped, trained, and initially led by Iran.” Id. at ¶ 37. All members of the Badr Organization must swear loyalty to the Supreme Leader Ayatollah Khomeini of Iran. Tr. 178: 5-7.

         Following the end of the Iran-Iraq war, the Badr Organization supported efforts within Iraq to overthrow Saddam Hussein and the Sunni ruling class. Iran continued to provide support to the Badr Organization in these efforts. Ex. 13, Colonel Joel D. Rayburn et al., The U.S. Army in the Iraq War: Volume 1 2003-2006 181 (2019). Iran directly sponsored the Badr Organization's activities in Iraq, including the gathering of intelligence and acts of sabotage and subversion in the Shia South of Iraq. Id. at 14.

         In 2003, a coalition army, led primarily by the United States, invaded Iraq and ended the rule of Hussein. During this time, the Badr Organization attempted to take advantage of Hussein's overthrow and the power vacuum which remained. The Badr Organization developed lists of Hussein loyalists to target and organized death squads to hunt and kill Sunni leaders as well as Shias who collaborated with the United States and its allies. Id. at 125-26. Iran continued to fund and support the Badr Organization during this time. Expert Affidavit of Stuart Bowen, ECF No. 29-1, ¶ 37.

         While Iran saw advantages to the fall of Hussein and his Sunni ruling majority, Iran intoned that “it was unlikely that the United States would establish a new Iraqi Government friendly to Iran.” Ex. 13, Colonel Joel D. Rayburn et al., The U.S. Army in the Iraq War: Volume 1 2003-2006 187 (2019). “To Iranian eyes, if the United States retained a close relationship with a democratic Iraq, the new Iraq might become an American platform for targeting the Iranian regime.” Id.; Tr. 176: 11-13 (“I think the strategy from Iran was to establish a Shia crescent across the norther Middle East from Persia, Iran, through Iraq”). In order to prevent a new Iraqi government from allying itself closely with the United States, Iran developed a strategy to tie itself closer to Iraq while simultaneously separating Iraq from the United States. Id. “This strategy involved creating instability inside Iraq, placing the responsibility for the chaos on the United States and its Iraqi partners, and ensuring pro-Iranian politicians dominated the new Iraqi Government.” Id. In order to further this strategy, Iran supported Shia political parties and militias, such as the Badr Organization. Id. Through its long-standing relationship with the Badr Organization, Iran already had an extensive support network within Iraq which was used to sow instability and hinder the United States' efforts at reconstruction. Id.

         Iran was particularly successful in infiltrating Iraqi law enforcement, including the local, national, and special police, through Bayan Jabr in his position as head of the Ministry of the Interior (“MOI”). Tr. 226: 11-12 (explaining that “the Ministry of Interior continues to this day to be a Badr entity”). Jabr had been a member of the Badr Organization since its inception. He fought for Iran during the Iran-Iraq war and is a dual citizen of Iran and Iraq. Tr. 172: 22-23; 178: 23-25. As head of the MOI, Jabr cleared the MOI of any Sunni leaders, killing many of them. Tr. 182: 1-12. Jabr further brought many of his Badr Organization associates “to work for him in the Ministry of the Interior and many of them carried out his lethal and illegal business.” Tr. 172: 24-173: 1. Under Jabr, the MOI developed special police forces that formed death squads and killed Sunnis as well as Shias who were working with the United States. Tr. 184: 1-16; Expert Affidavit of Stuart Bowen, ECF No. 29-1, ¶ 22 (“Iraqi leaders later related to me that Minister Bayan Jabr approved the torture and killing that occurred under the MOI's aegis”). In addition to killing, the MOI also engaged in torture and “the use of power drills was infamously associated with the [MOI's] torture.” Tr. 190: 5-7.

         During the relevant period, Iran continued to exert its influence over the MOI through the Badr Organization. Iran trained Badr Organization members in Iran. Tr. 186: 12; Ex. 13, Colonel Joel D. Rayburn et al., The U.S. Army in the Iraq War: Volume 1 2003-2006 392 (2019). Following training, some members were sent back to Iraq to work with Jabr in the MOI. Tr. 186: 13-17. Additionally, Iran provided weapons to the Badr Organization. Tr. 186: 18-19. Throughout this time, there was “direct Iranian influences over Iraqi-Shia militant activities, ” including over the activities of the Badr Organization. Expert Affidavit of Stuart Bowen, ECF No. 29-1, ¶ 35.

         Many of the attacks on Sunnis and Shia Iraqis working with the United States throughout the relevant period were directed by Iran through its influence over the MOI and the Badr Organization. While Iran did not launch direct attacks in Iraq, its support for the Badr Organization allowed it to “exact revenge on Sunni leaders and manipulate the new Iraqi Government.” Ex. 13, Colonel Joel D. Rayburn et al., The U.S. Army in the Iraq War: Volume 1 2003-2006 392 (2019). Iran operated with the goal of exerting its influence over Iraq and weakening the United States' power in Iraq.

         2. The Badr Organization, Materially Supported by Iran, Kidnapped, Tortured, and Killed S.F.

         Next, the Court finds that the Badr Organization, supported by Iran, is responsible for the kidnapping, torture, and death of S.F.

         During the relevant time period, S.F. owned and operated a contracting company based in Baghdad, Iraq. Dec. of M.S., ECF No. 29-2, ¶ 9. S.F.'s family, who are Sunni Muslims, were actively involved in his company. In addition to being medical doctors, S.F.'s two eldest sons, M.S. and S.S., worked at the contracting company with S.F. Id. at ¶ 13; Dec. of S.S., ECF No. 29-4, ¶ 7. His third son, B.A., worked with the engineering team at S.F.'s company. Dec. of B.A., ECF No. 29-6, ¶ 7. And, S.F.'s youngest son, S.A., had a paid internship with the company. Dec. of S.A., ECF No. 29-5, ¶ 8.

         In 2003, following the fall of Hussein, the company began working with the Coalition Provisional Authority, particularly the United States, to assist in the rebuilding of Iraq. Dec. of M.S., ECF No. 29-2, ¶ 14. S.F. and his family knew that it could be dangerous to work with the United States based on the antipathy some Iraqis felt towards the United States. Tr. 23: 20-25. Nevertheless, S.F. decided to take on this work because “he believed this [was his] opportunity to rebuild the country, [and] help the Americans to establish … a democratic system.” Tr. 23: 8-10.

         S.F.'s company began its work with the United States by constructing a new building for the Commission on Public Integrity (“CPI”). The purpose of the CPI was to target bad practices and corruption in the Iraqi government. Tr. 24: 11-15. S.F.'s company built two projects for the CPI. S.F. “believed that it [was] a good legacy for him to engage with [anti-corruption], even though [he would] not have any profit” from the projects. Tr. 24: 16-20. These projects were built inside the green zone in Baghdad, and S.F.'s participation in the construction, as well as the purpose of the buildings, was known to few. Tr. 25: 6-26: 2. One department in the Iraqi government knew of S.F.'s role in the projects-the Ministry of Housing and Reconstruction. Tr. 26: 24-25. The head of the Ministry of Housing and Reconstruction at the time was Jabr, a known member of the Badr Organization who later became the head of the MOI. 27: 7-13.

         Because S.F.'s company successfully and timely completed their work for the CPI, S.F. was encouraged to apply for other contracts with the United States. Tr. 31: 10-15. Ultimately, S.F.'s company was given a multiple award task contract to complete reconstruction work in Iraq on behalf of the United States. Tr. 31: 20-23; Ex. 1 (multiple award task order contract). Under the contract, S.F.'s company was given multiple tasks in furtherance of the reconstruction effort. Each task was valued at a certain amount of money, and if the task was completed on time, the company would be compensated and could move to the next task. Tr. 33: 7-18. The tasks primarily related to rebuilding and refurbishing the electricity grid in Baghdad. Tr. 33: 21-22.

         S.F.'s company began working on the multiple award task contract with the United States in early 2006. The year 2006 was a particularly bad time for sectarian violence in Iraq. Expert Affidavit of Stuart Bowen, ECF No. 29-1, ¶ 21. During this time, the situation in Baghdad was volatile due to the bombing of one of the holiest Shia sites. Id. at ¶ 34. Attacks between Shias and Sunnis escalated as did attacks on United States personnel. Id. S.F.'s work on the electrical grid was particularly dangerous because Iran, through militias including the Badr Organization, was attempting to sabotage the United States' reconstruction work in Iraq. Id. at ¶ 35; Tr. 40: 9-15. S.F. was aware of this increase in violence and took precautions in an attempt to secure the safety of his workers, his family, and himself. Tr. 38: 23-39: 25.

         Despite these precautions, shortly after beginning work on the electrical grid, one of S.F.'s chief engineers was kidnapped by the Badr Organization. Tr. 40: 25, 44: 11-16; Ex. 9 (emails regarding kidnapping). Witnesses reported that the kidnappers were wearing clothing with an emblem on their shoulders identifying them as part of the Badr Organization. Tr. 47: 11-19. After paying a ransom, the engineer was eventually released. Tr. 44: 6-10. The engineer was told that “if he continue[d] to work on the electricity grid he [would] lose his life and his family's life as well.” Tr. 44: 8-10. The engineer quit and moved his family from Iraq. Tr. 44: 18-19. Importantly, the engineer was Christian, creating an inference that he was targeted for his work with the United States rather than based on sectarian violence. Tr. 41: 6-8. In addition to the kidnapping, a car bomb was set off near the company's offices. Tr. 48: 10-16; Ex. 10 (emails relating to the car bomb). Again, the car bomb was linked to the Badr Organization's attempt to force S.F.'s company to stop working with the United States. Tr. 50: 4-11.

         Despite these attacks, S.F. and his family decided “to move forward … with the projects and help the Americans.” Tr. 45: 4-5; Ex. 9 (“we still want to work with you in[ ]spite of all the risks taken”). However, the company continued to take more steps in an attempt to make the working environment safer. Tr. 45: 17-23.

         Due to the sectarian violence and continued disruptions in Iraq, in April 2006, S.F. realized that he would require another supplier in order to have secured access to the materials needed to rebuild the electricity grid. Tr. 53: 2-11. S.F. contacted his longtime friend, Abu Ali, for assistance in locating a new supplier for the materials. Tr. 54: 8-10. Ali worked with Turkish companies who could access safer routes to deliver the necessary materials. Tr. 55: 3-16. In late April 2006, S.F. and Ali began negotiations for a contract for these supplies. Tr. 55: 17-21.

         On May 11, 2006, the date of S.F.'s kidnapping, S.F. planned to meet Ali for lunch at Ali's office in order to finalize an initial agreement for the materials. Tr. 55: 22-56: 4. Following the morning at work, S.F. sent his son, M.S., home so that S.F. could go to lunch with Ali and a Turkish representative. Tr. 56: 8-19. M.S. took a taxi home and left the family car with S.F. so that he could drive to his lunch at Ali's office. Tr. 57: 20-21; Supplemental Dec. of M.S., ECF No. 31-1, ¶¶ 10-13.

         S.F.'s family first became concerned when he did not arrive home at his usual time in the late afternoon. Tr. 58: 3-5. S.F.'s family repeatedly called his cellphone, but S.F. did not answer. Tr. 58: 11-13. The family then called Ali, but Ali reported that S.F. had failed to show up for lunch. Tr. 58: 16-17. M.S. worried that S.F. had gotten into a car accident on the way to Ali's office and began calling the hospitals. Tr. 58: 18-24.

         M.S. asked Ali to send one of his workers to check near the office to see if an accident had occurred. Tr. 59: 6-8. Ali later told the family that S.F. had been stopped at a police check point and had been taken. Tr. 59: 11-13. Ali learned this information by walking the streets and asking shop owners if they had seen anything. Tr. 63: 1-7.

         Late on the evening of May 11, 2006, S.F.'s family continued making calls to his cellphone. Eventually, someone picked up S.F.'s cellphone and stated that they had S.F. The person further instructed that he would call back and that ...


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