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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
IN RE: )
)
ISLAMIC REPUBLIC OF IRAN )
TERRORISM LITIGATION )
) Civil Action Nos.
)
) 01-CV-2094, 01-CV-2684, 02-CV-1811,
) 03-CV-1486, 03-CV-1708, 03-CV-1959,
) 05-CV-2124, 06-CV-473, 06-CV-516,
) 06-CV-596, 06-CV-690, 06-CV-750,
) 06-CV-1116, 07-CV-1302, 08-CV-520,
) 08-CV-531, 08-CV-1273, 08-CV-1615,
) 08 CV-1807, 08-CV-1814
I.
TABLE OF CONTENTS
I. Table of Contents................................................................................................................ 1
II. Introduction........................................................................................................................ 3
III. Discussion.......................................................................................................................... 9
A. Historical Overview of the FISA State Sponsor of Terrorism Exception as it
Relates to Actions Against the Islamic Republic of Iran...................................... 13
1. The Original State Sponsor of Terrorism Exception to Foreign
Sovereign Immunity, Section 1605(a)(7) and the Flatow Amendment,
Section 1605 Note, and Litigation Against Iran for its Provision of
Material Support to Terrorist Organizations............................................. 14
2. Setbacks for Plaintiffs: The D.C. Circuit’s Decision in Cicippio-Puleo. . 22
3. The Never-Ending Struggle to Enforce Judgments Against Iran. ............ 27
B. Section 1083 of the 2008 NDAA and the Creation of a Terrorism Exception,
Section 1605A....................................................................................................... 44
1. New Federal Cause of Action. .................................................................. 44
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2. Punitive Damages. ....................................................................................48
3. Compensation for Special Masters. .......................................................... 49
4. More Robust Provisions for the Execution of Civil Judgments. .............. 49
C. Retroactive Application of Section 1605A to Cases Previously Filed Under
Section 1605(a)(7). ............................................................................................... 52
1. Section 1083(c)(2) – Prior Actions........................................................... 53
2. Section 1083(c)(3) – Related Actions....................................................... 55
3. The 60-Day Rule – Filing Deadline for Cases Based on Prior Actions
Under Section 1605(a)(7). ........................................................................ 56
4. Section 1083(c)(2)(B) – Defenses Waived: Res Judicata, Collateral
Estoppel, and Statute of Limitations Are Deemed Waived to the Extent
that those Defenses Relate to Claims Litigated in a Prior Action Under
Section 1605(a)(7). ................................................................................... 56
D. Efforts to Obtain Retroactive Treatment Under the New Terrorism Exception,
Section 1605A....................................................................................................... 58
E. Examination of Section 1083(c) of the 2008 NDAA Under Article III of the
United States Constitution. ................................................................................... 62
1. Principles of Law – The Independence of the Federal Judiciary Under
Article III and the Finality of Judgments.................................................. 66
2. Analysis of the Constitutional Question in Light of the Supreme
Court’s Jurisprudence. .............................................................................. 76
a. Does Section 1083(c)(3) Direct the Reopening of Final
Judgments Entered Before its Enactment and Therefore
Contravene Article III as Construed by the Supreme Court in
Plaut? ............................................................................................ 77
b. Assuming that Section 1083(c)(3) Does Not Direct the
Reopening of Final judgments, Does the Waiver of Res
Judicata and Collateral Estoppel Effect of any Prior Terrorism
FSIA Action Nonetheless Offend Article III because Congress
has Directed the Courts to Ignore Fundamental and
Longstanding Judicial Doctrines?................................................. 86
3. Additional Considerations. .......................................................................96
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F. Analysis of Whether Actions Under Section 1605(a)(7) Have Qualified for
Retroactive Treatment Under Section 1605A..................................................... 102
1. The Belt-and-Suspenders Plaintiffs: Those Who Have Invoked both
Section 1083(c)(2) and (c)(3).................................................................. 104
2. The Related-Action Plaintiffs: Those Who Have Filed New Actions
Pursuant to Section 1083(c)(3). .............................................................. 115
3. The Do-Nothing Plaintiffs: Those Who Have Invoked Neither Section
1083(c)(2) Nor (c)(3) in Their Efforts to Retroactively Claim the New
Entitlements Under Section 1605A. ....................................................... 119
4. General Guidance for All Cases. ............................................................ 125
G. Service of New Claims in Pending Cases........................................................... 126
H Guidance for Plaintiffs Who May Wish to Pursue Relief Under Rule 60 of the
Federal Rules of Civil Procedure........................................................................ 133
I. Compensation for Special Masters. .................................................................... 137
J. Motions for Appointment of Receivers. ............................................................. 143
K. A Call for Meaningful Reform. .......................................................................... 156
L. An Invitation for the United States to Participate in These Actions................... 186
IV. Conclusion. ..................................................................................................................... 187
II.
INTRODUCTION
For more than a decade now, this Court has presided over what has been a twisting and
turning course of litigation against the Islamic Republic of Iran under the state sponsor of
terrorism exception of the Foreign Sovereign Immunities Act (FSIA). Despite the best intentions
of Congress and moral statements of support from the Executive Branch, the stark reality is that
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the plaintiffs in these actions face continuous road blocks and setbacks in what has been an
increasingly futile exercise to hold Iran accountable for unspeakable acts of terrorist violence.1
The cases against Iran that will be addressed by the Court today involve more than one
thousand individual plaintiffs. Like countless others before them, the plaintiffs in these actions
have demonstrated through competent evidence—including the testimony of several prominent
experts in the field of national security—that Iran has provided material support to terrorist
organizations, like Hezbollah and Hamas, that have orchestrated unconscionable acts of violence
that have killed or injured hundreds of Americans. As a result of these civil actions, Iran faces
more than nine billion dollars in liability in the form of court judgments for money damages.
Despite plaintiffs’ best efforts to execute these court judgments, virtually all have gone
unsatisfied.
This consolidated opinion focuses on recent legislative changes in this extraordinary area
of the law, as implemented by Congress last term in § 1083 of the 2008 National Defense
1 The Islamic Republic of Iran was designated by the Secretary of State as a state sponsor
of terrorism on January 19, 1984. The State Department maintains a list of countries that have
been designated as state sponsors of terrorism on the Department’s website. See U.S. Dep’t of
State, State Sponsors of Terrorism, www.state.gov/s/ct/c14151.htm (last visited Sept. 29, 2009).
As noted at the website, countries designated as state sponsors of terrorism are those countries
that the Secretary of State has determined “have repeatedly provided support for acts of
international terrorism.” Id. The Secretary of State makes that determination and designates
state sponsors of terrorism pursuant to three statutory authorities: § 6(j) of the Export
Administration Act of 1979, 50 U.S.C. app. § 2405(j); § 620A of the Foreign Assistance Act, 22
U.S.C. § 2371; and § 40(d) of the Arms Export Control Act, 22 U.S.C. § 2780(d). Three other
countries are designated as State Sponsors of Terrorism: Cuba, Sudan, and Syria. U.S. Dep’t of
State, supra note 1. In April 2009, the State Department published its annual Country Reports
on Terrorism, reporting that “Iran remained the most active state sponsor of terrorism” in 2008.
U.S. DEP’T OF STATE, COUNTRY REPORTS ON TERRORISM 2008, at 182, available at
http://www.state.gov/documents/organization/122599.pdf. “Iran’s involvement in the planning
of financial support of terrorist attacks throughout the Middle East, Europe, and Central Asia has
had a direct impact on international efforts to promote peace, threatened economic stability in the
Gulf, and undermined the growth of democracy.” Id.
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Appropriations Act for Fiscal Year 2008 (2008 NDAA). See Pub. L. No. 110-181, § 1083, 122
Stat. 3, 338–44. Section 1083 completely repeals the original state sponsor of terrorism
exception—28 U.S.C. § 1605(a)(7)—which was originally enacted in 1996, and enacts in its
place a new exception—28 U.S.C. § 1605A—that is in many ways more favorable to plaintiffs.
This new statute provides, among other reforms, a new federal cause of action against state
sponsors of terrorism and allows for awards of punitive damages in these cases. Even more
significantly, however, the reforms implemented through § 1083 last year add a number of
measures that are intended to help plaintiffs succeed in enforcing court judgments against state
sponsors of terrorism, such as Iran.
The primary purpose of this opinion is to consider whether and to what extent these
recent changes in the law should apply retroactively to a number of civil actions against Iran that
were filed, and, in many instances, litigated to a final judgment prior to the enactment of the
2008 NDAA. In this particular instance, Congress has provided express guidance in § 1083(c)
with respect to how § 1605A may be applied retroactively to reach a host of cases that were filed
under the original terrorism exception, § 1605(a)(7). In considering this retroactivity question,
the Court will address a variety of other legal and procedural issues relating to what may be
another lengthy course of litigation against Iran.
As is often the case in this area of the law that the Supreme Court has called sui generis,
see Austria v. Altmann, 541 U.S. 677, 698 (2004), this Court must sometimes confront novel
legal questions, including constitutional issues of first impression. Today’s decision is no
different. This Court must address whether § 1083(c) impermissibly directs the reopening of
final judgments in violation of Article III of the Constitution. See Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 241 (1995). The Court’s attentiveness to this potentially unconstitutional
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application of § 1083(c) was heightened significantly by provisions of § 1083(c) that direct
courts to essentially disregard the firmly established judicial doctrines of res judicata and
collateral estoppel with respect to any matters litigated in a prior FSIA terrorism case.
To the extent that § 1083(c) might be construed as directing the reopening of final
judgments entered under the former version of the terrorism exception, § 1605(a)(7), it would
usurp the prerogative of the judiciary to decide cases under Article III and thereby offend the
principle of separation of powers enshrined within our Constitution. In light of this issue’s
significance with respect to ongoing litigation against Iran, this Court addresses the Article III
question in Part E of this opinion. After careful analysis as set forth below, this Court holds that
the statute withstands constitutional scrutiny.
Today, the Court also reaches an even more fundamental conclusion: Civil litigation
against Iran under the FSIA state sponsor of terrorism exception represents a failed policy. After
more than a decade spent presiding over these difficult cases, this Court now sees that these
cases do not achieve justice for victims, are not sustainable, and threaten to undermine the
President’s foreign policy initiatives during a particularly critical time in our Nation’s history.
The truth is that the prospects for recovery upon judgments entered in these cases are extremely
remote. The amount of Iranian assets currently known to exist with the United States is
approximately 45 million dollars, which is infinitesimal in comparison to the 10 billion dollars in
currently outstanding court judgments.2 Beyond the lack of assets available for execution of
judgments, however, these civil actions inevitably must confront deeply entrenched and
2 See OFFICE OF FOREIGN ASSETS CONTROL, U.S. DEP’T OF THE TREASURY, TERRORIST
ASSETS REPORT 14–15, tbls. 1, 3 (2007) [hereinafter TERRORIST ASSETS REPORT], available at
http://www.treas.gov/offices/enforcement/ofac/reports/tar2007.pdf.
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fundamental understandings of foreign state sovereignty, conflicting multinational treaties and
executive agreements, and the exercise of presidential executive power in an ever-changing and
increasingly complex world of international affairs.
Unfortunately, the enactment of § 1083 of the 2008 NDAA continues and expands the
terrorism exception and its failed policy of civil litigation as the means of redress in these
horrific cases. The availability of new federal claims under § 1605A with punitive damages,
when combined with the broad retroactive reach accorded to this new statute, means that liability
in the form of billions of dollars more in court judgments will continue to mount and mount
quickly.
As a result of these latest reforms, the victims in these cases will now continue in their
long struggle in pursuit of justice through costly and time-consuming civil litigation against Iran.
They will do this at a time in our Nation’s history when the President has taken bold and
unprecedented steps in an attempt to improve relations with that foreign power while pressing
forward on crucial issues, such as the grave threat of nuclear proliferation posed by Iran.
Regrettably, the continuation in § 1083 of the same flawed policy that has failed plaintiffs in
these actions for over a decade may only stoke the flames of unrealistic and unmanageable
expectations in these terrorism victims who so rightly deserve justice, which may in turn serve
only to expose the Administration to an unprecedented burden in its management of United
States foreign policy towards Iran.
In view of these considerations, the Court will respectfully urge the President and
Congress to seek meaningful reforms in this area of law in the form of a viable alternative to
private litigation as the means of redress for the countless deaths and injuries caused by acts of
terrorism. In Part K of the opinion and in the Conclusion, this Court will speak candidly about
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the challenges, complexities, and frustrations borne out by these civil actions over the past
decade in an effort to urge our political leaders to act. If the decade-long history of these FSIA
terrorism actions has revealed anything, it is that the Judiciary cannot resolve the intractable
political dilemmas that frustrate these lawsuits; only Congress and the President can. Today, at
the start of a new presidential administration—one that has sought engagement with Iran on a
host of critical issues—it may be time for our political leaders here in Washington to seek a fresh
approach.3
To assist this Court in these matters going forward, the Court will invite the United States
to participate in these actions by filing a brief in response to the many issues addressed in this
opinion. The Court encourages the United States to express its views regarding this litigation,
but, more importantly, the Court hopes the Government might take this opportunity to give due
consideration to whether there might be a more viable system of redress for these tragic and
difficult cases. With the daunting national security challenges that confront the President with
respect to Iran, our political leaders should candidly acknowledge the challenges and pitfalls of
these terrorism lawsuits. The Court fears that if reforms are not achieved in the near future, these
civil suits against Iran may undermine the President’s ability to act at a time when it matters
most.
3 Reaching out to the people of Iran and their leaders, President Obama recently stated: “I
would like to speak clearly to Iran’s leaders: We have serious differences that have grown over
time. My administration is now committed to diplomacy that addresses the full range of issues
before us and to pursuing constructive ties among the United States, Iran, and the international
community.” Videotaped Remarks on the Observance of Nowruz, DAILY COMP. PRES. DOC.,
Mar. 20, 2009.
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Today’s omnibus opinion consists of twelve parts and is intended to serve a case
management function in light of the significant changes in the law relating to these civil suits
against Iran. Thus, today’s ruling is consistent with this Court’s inherent authority to manage the
docket. See, e.g., In re Fannie Mae Sec. Litig., 552 F.3d. 814, 822 (D.C. Cir. 2009) (“District
judges must have authority to manage their dockets, especially during massive litigation . . . .”).
A separate order consistent with this opinion will issue this date.
III.
DISCUSSION
The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. §§ 1330, 1602–1611,
is the sole basis of jurisdiction over foreign states in our courts. E.g., Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989); Prevatt v. Islamic Republic of Iran,
421 F. Supp. 2d 152, 157–58 (D. D.C. 2006) (Lamberth, J.). Enacted in 1976, the FSIA codifies
a restrictive theory of foreign state sovereign immunity by which states are generally immune
from the jurisdiction of courts of the United States, subject to a few carefully delineated
exceptions. See, e.g., Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488–89 (1983);
Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002). In the
original FSIA enactment, exceptions to foreign sovereign immunity included cases in which a
foreign state had either expressly or implicitly waived its immunity and cases relating to the
commercial activities of a foreign sovereign within the United States. See Act of Oct. 21, 1976,
Pub. L. No. 94-583, 90 Stat. 2891; see also §§ 1605(a), 1605A (codification of current FSIA
exceptions); Verlinden, 461 U.S. at 488 (discussing key exceptions under the FSIA).
The state sponsor of terrorism exception of the FSIA was first enacted in 1996 as part of
Mandatory Victims Restitution Act of 1996, which was itself part of the larger Antiterrorism and
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Effective Death Penalty Act of 1996. Pub. L. No. 104-132, § 221(a)(1)(C), 110 Stat. 1214, 1241
(formerly codified at § 1605(a)(7)). As noted, however, the original exception at § 1605(a)(7)
was repealed last year by the 2008 NDAA, § 1083(b)(1)(A)(iii), and replaced with a new
exception at § 1605A. It is unclear why Congress chose to repeal rather than simply amend the
prior statute. See H.R. REP. NO. 110-477, at 1001 (2007) (Conf. Rep.) (discussing § 1605A but
omitting discussion of why Congress repealed, instead of amended, § 1605(a)(7)). Perhaps
members of Congress wanted to reinforce the significance of their overhaul of the terrorism
exception. Whatever the case may be, it is important at the outset for this Court to offer some
notes of clarification and historical background information in an effort to avoid any confusion in
the ensuing discussion.
The Court’s analysis today must simultaneously consider two separate and distinct
versions of the terrorism exception of the FSIA—the now-repealed version of the terrorism
exception, § 1605(a)(7), and the new version, § 1605A. While the prior version of the exception,
§ 1605(a)(7), and the new version, § 1605A, differ in many fundamental respects, it is important
to keep in mind that the basic grant of subject matter jurisdiction for actions against state
sponsors of terrorism remains unchanged. Thus, it makes little difference whether one refers to
§ 1605(a)(7) or § 1605A when addressing the degree to which foreign sovereign immunity has
been removed, subjecting designated state sponsors of terrorism to lawsuits in our courts.
Indeed, the language eliminating sovereign immunity in the new exception, § 1605A, is virtually
identical to the operative language in § 1605(a)(7). Compare § 1605(a)(7) with § 1605A(a)(1).
Accordingly, in those instances in which the Court is merely referring to the grant of subject
matter jurisdiction afforded by the virtue of the FSIA’s terrorism exception, it will do so broadly,
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without any additional effort to underscore the two different statutes, as the two provisions are in
fact indistinguishable in terms of the basic jurisdiction conferring language.
While the grant of subject matter jurisdiction for suits against state sponsors of terrorism
is virtually unchanged, the latest version of the terrorism exception, § 1605A, adds substantive
rights and remedies that were not available previously. As noted above, § 1605A is a much more
expansive provision, one which provides a federal cause of action, as well as many other
statutory entitlements. These new rights and remedies are the central focus of today’s decision.
The issue is whether the plaintiffs in actions that were filed, at least initially, under the nowrepealed
§ 1605(a)(7), can now avail themselves of the additional entitlements associated with
the new exception, § 1605A. Thus, to extent that some of these plaintiffs are unable to claim the
benefits of the new terrorism law retroactively, then the prior exception, § 1605(a)(7)—even
though now repealed—remains viable and indeed is the controlling source of law in their cases.
This is consistent with both the guidance provided by Congress in § 1083(c) of the 2008 NDAA
and the general presumption against the retroactive application of laws. See Landgraf v. USI
Film Prods., 511 U.S. 244, 286 (1994) (“The presumption against statutory retroactivity is
founded upon sound considerations of general policy and practice, and accords with long held
and widely shared expectations about the usual operation of legislation.”). Thus, when dealing
with the nuts and bolts of the retroactivity analysis, especially in Part D below where the Court
looks individually at each of the 20 cases in this opinion, it is important to keep the two versions
of the exception separate and distinct. As underscored recently by the Court of Appeals for this
Circuit, terrorism cases that were filed prior the enactment of the 2008 NDAA, and which do not
qualify for retroactive treatment under the new exception, are governed by the prior statute,
§ 1605(a)(7). See Simon v. Republic of Iraq, 529 F.3d 1187, 1192 (D.C. Cir. 2008), rev’d on
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other grounds sub. nom Republic of Iraq v. Beaty, 129 S. Ct. 2183 (2009); accord Oveissi v.
Islamic Republic of Iran, 573 F.3d 835 (D.C. Cir. 2009); La Reunion Aerienne v. Socialist
People’s Libyan Arab Jamahiriya, 533 F.3d 837, 845 (D.C. Cir. 2008); Owens v. Republic of
Sudan, 531 F.3d 884, 887 (D.C. Cir. 2008).
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A.
HISTORICAL OVERVIEW OF THE FSIA STATE SPONSOR OF TERRORISM
EXCEPTION AS IT RELATES TO ACTIONS AGAINST
THE ISLAMIC REPUBLIC OF IRAN
The new terrorism exception—§ 1605A—clears away a number of legal obstacles,
including adverse court rulings, that have stifled plaintiffs’ efforts to obtain relief in civil actions
against designated state sponsors of terrorism. In fact, these reforms are in part a legislative fix
to certain adverse precedent from the D.C. Circuit because Ҥ 1605A(c) abrogates Cicippio-
Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004), by creating a federal right of
action against foreign states, for which punitive damages may be awarded.” Simon, 529 F.3d at
1190. Thus, to fully grasp the significance these latest reforms, it is important to have some
understanding regarding the manner in which the state sponsor of terrorism exception was
shaped over time through the jurisprudence of this Circuit. More fundamentally, however, this
historical backdrop is essential to the Court’s analysis of the Article III separation-of-powers
issue below in Part E, as well as for the Court’s conclusion in Part K that even greater reforms in
the law are necessary.
Accordingly, the Court will now briefly provide a historical overview of the state sponsor
of terrorism exception, as it was originally constituted under § 1605(a)(7) (repealed), and the socalled
Flatow Amendment to that exception, . This part of the discussion will examine some of
the early litigation against Iran before this Court in cases arising out of Iran’s provision of
material support and resources to terrorist organizations, such as Hamas and Hezbollah. The
important historical background that follows breaks down roughly into three parts. The Court
will begin with a discussion of Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998)
[hereinafter Flatow I] (Lamberth, J.), which was the first case in the country to be decided
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against Iran under the state sponsor of terrorism exception. After discussing this Court’s ruling
in Flatow, this Court will then review the decision of the D.C. Circuit Court of Appeals in
Cicippio-Puleo, 353 F.3d 1024, in which the Court found that neither § 1605(a)(7) nor the
Flatow Amendment furnish a cause of action against a foreign state. This Court examines the
negative consequences and practical implications of that ruling for plaintiffs in these terrorism
cases. After examining the fallout from Cicippio-Puleo, this Court proceeds to address what has
been the greatest problem for these plaintiffs, and that is the fact that there are simply not
sufficient Iranian assets that are amenable to attachment or execution in satisfaction of judgments
entered against Iran under the FSIA terrorism exception.4
1. The Original State Sponsor of Terrorism Exception to Foreign Sovereign Immunity,
Section 1605(a)(7) and the Flatow Amendment, Section 1605 Note, and Litigation
Against Iran for its Provision of Material Support to Terrorist Organizations
The state sponsor of terrorism exception to foreign sovereign immunity applies only to
foreign sovereigns officially designated as state sponsors of terrorism by the State Department.
See § 1605A(a)(2)(A)(i)(I); § 1605(a)(7)(a) (repealed). This exception to foreign sovereign
immunity is commonly known as the “terrorism exception.” See, e.g., Kilburn v. Socialist
4 For an excellent summary of the litigation and evolution of the law pertaining to the
state sponsor of terrorism exception of the FSIA, see JENNIFER K. ELSEA, CONGRESSIONAL
RESEARCH SERV., SUITS AGAINST TERRORIST STATES BY VICTIMS OF TERRORISM (2008)
[hereinafter SUITS AGAINST TERRORIST STATES], available at
http://www.fas.org/sgp/crs/terror/RL31258.pdf. This Congressional Research Service report on
terrorism lawsuits is the logical starting point for anyone who is hoping to gain a solid grasp of
the development of this area of the law and its many complexities. In addition to chronicling
important legislative developments, the report captures and summarizes the civil litigation that
has occurred in this Court against Iran under the state sponsor of terrorism exception to the
FSIA. This Court is grateful to the Congressional Research Service, and to Ms. Elsea in
particular, for their thorough work on this unique and important topic. This Court has examined
and relied on many of the original source materials identified in the report for additional insight
on these matters beyond the Court’s own experience in presiding over dozens of civil actions
against Iran.
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People’s Libyan Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir. 2004). Under the exception,
foreign sovereign immunity is eliminated in two different categories of terrorism cases: (1) those
in which the designated foreign state is alleged to have committed certain acts of terrorism, i.e.,
torture, extrajudicial killing, aircraft sabotage, or hostage taking; and (2) those in which the
designated state is alleged to have provided “material support or resources” for such terrorist
acts. See § 1605A(a)(1); § 1605(a)(7) (repealed). Thus, a designated state sponsor of terrorism
might be held to account for its specific acts of terrorism, as well as, more broadly speaking, its
“provision of material support or resources” in furtherance of acts of terrorism. See
§ 1605A(a)(1); § 1605(a)(7) (repealed).
The statute is intended to protect American victims of state-sponsored terrorism, and
therefore only United States citizens and nationals may rely on its grant of subject matter
jurisdiction. See § 1605A(a)(1); § 1605(a)(7) (repealed); see also Acosta v. Islamic Republic of
Iran, 574 F. Supp. 2d. 15, 25–26 (D.D.C. 2008) (Lamberth, C.J.) (denying claims of victim,
Rabbi Meir Kahane, who had voluntarily renounced his U.S. citizenship years prior to his
assassination by Islamic terrorists). Thus, the victim or claimant in an action against a state
sponsor of terrorism must have been a United States citizen or national at the time of the incident
that gave rise to his claim(s). See Acosta, 574 F. Supp. 2d at 26.
Most of the actions in this Court against Iran have proceeded under that portion of the
terrorism exception relating to “the provision of material support or resources” for terrorist acts.
See, e.g., Flatow I, 999 F. Supp. 1; Eisenfeld v. Islamic Republic of Iran, 172 F. Supp. 2d 1
(D.D.C. 2000) (Lamberth, J.); Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C.
2006) (Lamberth, J.). The terrorism exception adopts the definition of “material support or
resources” set forth in the criminal code at 18 U.S.C § 2339A(b)(1):
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[T]he term “material support or resources” means any property, tangible
or intangible, or service, including currency or monetary instruments or financial
securities, financial services, lodging, training, expert advice or assistance,
safehouses, false documentation or identification, communications equipment,
facilities, weapons, lethal substances, explosives, personnel (1 or more individuals
who may be or include oneself), and transportation, except medicine or religious
materials[.]
See § 1605A(h)(3) (incorporating § 2339A(b)(1) by reference); see also § 1605(a)(7) (repealed).
This Court has determined that “the routine provision of financial assistance to a terrorist
group in support of its terrorist activities constitutes ‘providing material support and resources’
for a terrorist act within the meaning of the [terrorism exception of the FSIA].” Flatow I, 999 F.
Supp. 1 at 19. Additionally, this Court has found that “a plaintiff need not establish that the
material support or resources provided by a foreign state for a terrorist act contributed directly to
the act from which his claim arises in order to satisfy 28 U.S.C. § 1605(a)(7)’s statutory
requirements for subject matter jurisdiction.” Id. In other words, there is no “but-for” causation
requirement with respect to cases that rely on the material support component of the terrorism
exception to foreign sovereign immunity; “[s]ponsorship of a terrorist group which causes
personal injury or death of United States national alone is sufficient to invoke jurisdiction.” Id.;
see also Kilburn, 376 F.3d at 1129 (holding that Liyba’s actions need not be the “but for”
causation of an act of terrorism for the purpose of establishing subject matter jurisdiction under
the terrorism exception). Once the requirements for jurisdiction over a foreign state are satisfied
under the FSIA, then that foreign state can be held liable in a civil action “in the same manner
and to the same extent as a private individual under like circumstances.” § 1606.
When the FSIA state sponsor of terrorism exception was first enacted in April of 1996, it
was far from clear whether that statute, § 1605(a)(7), in and of itself, served as a basis for an
independent federal cause of action against foreign state sponsors of terrorism. While the waiver
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of foreign sovereign immunity was clear, and hence the provision authorized courts to serve as a
forum to adjudicate certain terrorism cases, questions remained regarding whether any civil
claims or money damages were available by virtue of that enactment. To clarify matters,
Congress created what is commonly referred to as the Flatow Amendment, which was enacted a
mere five months after the state sponsor of terrorism exception as part of the Omnibus
Consolidated Appropriations Act, 1997. See Pub. L. 104-208, § 589, 110 (1996), 110 Stat. 3009-
1, 3009-172 (codified at 28 U.S.C. § 1605 note). The Flatow Amendment provides in pertinent
part that:
An official, employee, or agent of a foreign state designated as a state
sponsor of terrorism . . . while acting within the scope of his office, employment,
or agency shall be liable to a United States national or the national’s legal
representative for personal injury or death caused by acts of that official,
employee, or agent for which courts of the United States may maintain
jurisdiction under section 1605(a)(7) of title 28, United States Code [repealed] for
money damages which may include economic damages, solatium, pain, and
suffering, and punitive damages if the acts were among those described in section
1605(a)(7).
§ 1605 note.
The amendment is named for Alisa Michelle Flatow, a 20-year-old Brandeis University
student from New Jersey who was mortally wounded in a suicide bombing attack on the Gaza
strip in April of 1995. Alisa Flatow’s father, Stephen Flatow, was one of the prime movers
behind the state sponsor of terrorism exception, and he successfully lobbied to have the
amendment incorporated as part of § 1605. See, e.g., Neely Tucker, Pain and Suffering;
Relatives of Terrorist Victims Race Each Other to Court, but Justice and Money are Both Hard
to Find, WASH. POST, Apr. 6, 2003, at F1 [hereinafter Tucker, Pain and Suffering] (recalling
Stephen Flatow’s lobbying efforts on behalf of the anti-terrorism legislation); see also Ruthanne
M. Deutsch, Suing State-Sponsors of Terrorism Under the Foreign Sovereign Immunities Act:
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Giving Life to the Jurisdictional Grant After Cicippio-Puleo, 38 INT’L LAW. 891 (2004)
(discussing legislative history of the Flatow Amendment and collecting sources); SUITS AGAINST
TERRORIST STATES, supra note 4, at 5–7 (discussing legislative history of § 1605(a)(7) and
Flatow Amendment).
Stephen Flatow filed suit in this Court shortly after the enactment of the Flatow
Amendment. As administrator of Alisa Flatow’s estate, plaintiff asserted a wrongful death claim
and a claim for Alisa’s conscious pain and suffering prior to her death. See Flatow I, 999 F.
Supp. at 27–29. Plaintiff also asserted solatium claims for the mental anguish and grief suffered
by the decedent’s parents and siblings as a result of her murder by terrorists. See id. at 29–32.
Plaintiff also sought punitive damages. See id. at 32–35. Iran did not enter an appearance in the
action and has never appeared in any FSIA terrorism action to date. See id. at 6.5
The Flatow case was the first in the country to be decided against Iran under the terrorism
exception to the FSIA. See 999 F. Supp. at 6 n.2. In that decision, this Court examined the
statutory language of the terrorism exception, § 1605(a)(7), and the Flatow Amendment, § 1605
5 Iran has never appeared in these actions even though it is “an experienced litigant in the
United States Federal Court System generally and in this Circuit. See, e.g., Cicippio v. Islamic
Republic of Iran, 30 F.3d 164 (D.C. Cir. 1994), cert. denied 513 U.S. 1078 (1995); Foremost-
McKesson v. Islamic Republic of Iran, 905 F.2d 438 (D.C. Cir. 1990); Presinger v. Islamic
Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984); Berkovitz v. Islamic Republic of Iran, 735 F.2d
329 (9th Cir. 1984); McKeel v. Islamic Republic of Iran, 722 F.2d 582 (9th Cir. 1983).” Flatow
I, 999 F. Supp. 1 at 6 n.1. Nevertheless, this Court cannot enter a default judgment against a
foreign sovereign unless the plaintiff “establishes his claim or right to relief by evidence
satisfactory to the Court.” 28 U.S.C. § 1608(e). Thus, this Court must carefully review the
plaintiff’s evidence with respect to both liability and damages.
While Iran has not defended itself in any of the lawsuits under the terrorism exception,
Iran has on occasion come to court to prevent plaintiffs from collecting on default judgments
entered under that provision. For example, Iran recently prevailed in an action to prevent the
attachment of one of its assets here in the United States. See, e.g., Ministry of Defense and
Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, 129 S. Ct. 1732 (2009).
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note, in pari materia and found that those provisions collectively established both subject matter
jurisdiction and federal causes of actions for civil lawsuits against state sponsors of terrorism.
See id. at 12–13. This Court also ruled that the Flatow Amendment was intended to ensure large
punitive damage awards against state sponsors of terrorism. See id. In this Court’s view, the
express provision of punitive damages in the Flatow Amendment, in conjunction with the
provisions’s legislative history, including statements by the Amendment’s co-sponsors,
Representative Jim Saxton and Senator Frank Lautenberg of New Jersey, demonstrated that
Congress believed punitive damage awards were absolutely necessary to ensure that civil actions
against state sponsors of terrorism would effectively deter those nations from perpetuating
international terrorism. See id. Thus, the Flatow Amendment served as an exception to the
general rule, as expressed in § 1606 of the FSIA, that foreign sovereigns are not to be held liable
for punitive damages.
During a two-day hearing in March of 1998, plaintiff proceeded in the manner of a nonjury
trial. Id. at 6. The evidence presented to the Court at that time demonstrated by clear and
convincing evidence that Iran was the sole source of funding for the Shaqaqi faction of Palestine
Islamic Jihad, a small terrorist cell that claimed responsibility for and in fact perpetuated the
suicide bombing that gravely wounded Alisa Flatow on April 9, 1995. Id. at 8–9. The suicide
bomber rammed a van full of explosives into the numb