Volume V - Annexes 359-369 | INTERNATIONAL COURT OF JUSTICE

Document Number

164-20210517-WRI-01-05-EN

Parent Document Number

164-20210517-WRI-01-00-EN

Document File

164-20210517-WRI-01-05-EN.pdf

INTERNATIONAL COURT OF JUSTICE
CERTAIN IRANIAN ASSETS
(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES OF AMERICA)
REJOINDER
SUBMITTED BY
THE UNITED STATES OF AMERICA
May 17, 2021
ANNEXES
VOLUMEV
Annexes 359 through 369

ANNEX 359

Case 1:03-cv-09848-GBD-SN Document 21 Filed 03/18/05 Page 1 of 2
UNJTBD :STATES DI.STRICT COURT
SOUTHERN D[STRlCT OF NEW YORK
NEW YORK '.\fARINE A-:-.ID GENER.AL NSURA..'ICE
COMPANY, el aL
P lai.ntiff,
-VAL-
Qaida, et al.
Defondanl~ ..
FjLE~
·. ~:. DISH11CT COURT
260) MA A I 8 P 12= 3 r
.. D OF~ Y
CERTIFI8AtE OFMAJL~C
0~ ~ ,,;~
04cv 61 05(RCC)
1, J, .\ti~bud McMilhun, Gt:rkulCuun for Lhe Soullm Di!;cri~t of1't:w Ymk, uu hereby [trtify ihat on lhc
March 18, 2005
I ~n·d th[
SUMMONS & CO\4PLAINT
~OTJCE OP SUIT. CERT!FlCA TE OF Al.JT11ENTICITY l;ROM TRAhSLATOR
AND $65{} CHECK PA YAilLE TO THE U.S. EMBASSY-T AERON
purn1ant to the foreign ffil/el'eigti immWlitie.1 Act {28 U.S. C. s l 60S(a)(4)},flled and i&sucd herein on the:
Dcccm b or 23. 2004
h~· mailing hy rc,~~lc,rr,,1: m.sil, rMi,m rc,r,r:ir,t rcqn<>~k<'I, a1 thE> Unita<l ,,,.t,,s Pr«t ()ffi..,.,. C'hinotr,v;.,.., :C:!tMi.-.n, i,.-,,...,,..
York, NY, a copy or each lhereo!~ securely enclosed in a post-p~id v,rapper addressed lo:
See auachtd for lislin~ of l),::[,;:ru.l<l.ub
Toa t 1nncxc<l to thl· origilll l hr:rcof is rcgistt:rcd rrnil receip*)
(Chinatmm Statio11) that '.'las is.tied a: my rc:g_LJCS{ as !lforc:;i1cntioaed, -_ ·>:·
Dillt:u: Nt:w York, NY
-1- Annex 359
Case 1:03-cv-09848-GBD-SN Document 21 Filed 03/18/05 Page 2 of 2
BROWN GA.VALAS & FROMM L.LP
l Jn1ted States District Court
Lil
IT"
U1 ru
::r
March l 5, 2005
Page 3
Thank you for your assistance. If you have any questions or roqntre any additional
tlocum1.:nt!:i'., please do not hc~itate to contact us ..
Very truly yours:,
BROWN GA VA.LAS & PROMM LLP
~ L----l~~~~,=,;;___;,a~_...:...._:.,:-.~r , _....:..:....-----"..:...._:........:... ___.
..n
-2- Annex 359
UNITED STATES DISTRICT COURT
SOUTHERN DlSTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant(s)
USDC SDNY
DOCUMENT
ELECTRON1CALLY FILED
DOC #:
DATEFILED: 11/15/2012
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gb~
~l2 Vo9!i48,
I hereby certify under the penalties ofpe1jury that on 15th day of NOVEMBER 15 , 20_ll___, I served:
ISLAMIC REPUBLIC OF IRAN AT MINISTER OF FOREIGN AFFAIRS OF THE ISLAMIC REPUBLIC OF IRAN,
KHOMEINI STREET TEHRAN IRAN
D One copy of the ________________ ___ ______ _
by ______________ _ ______ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
IXI One copy of the (PLEASE SEE ATTACHED LETTER)
by DHL 99 6863 4045 , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
I 608(a)(3).
D Two copies of the _______________ _ _ ________ _
by _____________________ , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the ___________ _______________ _
by _____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(6)(3)(B).
Dated:New York, New York
NOVEMBER 15, 2012
-3- Annex 359
Case 1:03-cv-09848-GBD-SN Document 319 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
i/c/o Islamic Republic ofiran,
Imam Khomeini Street
Tehran, Iran
UNITED STATES D ISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
Re: Havlish, et al. v. Bin Laden,
03 MDL 1570 (GBD)- 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
1. Order ofJudgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1:03-md-
01570-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S . Magistrate Judge Frank Maas on
July 30, 2012 (Case No. 1 :03-cv-09848-GBD, Document 314
3. Memorandum and Order entered by the Honorable George B. Daniels on October 3, 2012 (Case No. 1;03-cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 2012 )C~$e N:o. I :03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
Enc.
-4- Annex 359
EXPRESS WORLDWIDE
DHLOnline
From: MELLON AND WEBSTER PC
R. Rosen Phone: 215-348-7700
87 N BROAD ST
DOYLESTOWN PA 18901
United Stales
!To: Ministry of Foreign Affai rs
Imam Khomeini Street
TEHRAN
L Iran (Islamic Republic Of)
XPD
IR-THR-CHO
Date:
2012-10-29
Shpt Weight:
0.5 lb
Day
Origin:
ABE
Contact:)
Dr. Ali Akbar Saleh
009B21 61151
_J
Time:
Piece:
1/1
These commodtlios, technology or software were exported from the United States in accordance with the
~xport Adminis1ration Regulations. Diversion c.ontfary to U.S. law js prohibited.
Content:
Legal Documents
WAYBILL 99 6863 4045
(2L)IR+32000064
(J)JD01 2036 4765 5001 0532
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1
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant(s)
USDC SDNY
DOCID,,IENT
ELECTRONICALLY FILED
DOC#:
DATEFILED: 11/15/2012
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gbq)
D3CYD°tYZ/f
I hereby certify under the penalties of pe1jury that on 15th day of NOVEMBER , 20 ll.._, I served:
IRANIAN MINISTRY OF INFORMATION AND SECURITY AT MINISTER OF FOREIGN AFFAIRS OF THE
IALAMIC REPUBLIC OF IRAN, IMAM KHOMEINI STREET. TEHRAN, IRAN
D One copy of the _________________________ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions of FRCP 4(f)2(c)(ii).
IXI One copy of the (PLEASE SEE ATTACHED LETTER)
by OHL 99 6987 9360 , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
1608(a)(3).
D Two copies of the ________________ _________ _
by _____________________ , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the _ _________________________ _
by _ _______ _____________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § !608(b)(3)(B).
Dated: New York, New York
NOVEMBER 15, 2012
-6-
RUBY J. KRAJI~
C~ER~ OF?9JRT .
""-LJ_u,~ "tf_ulL-~-, f~~titk>
rint Name:JEAN IN E\lftKs;?; ttDEPUTY
CLERK OF COURT
Annex 359
Case 1:03-cv-09848-GBD-SN Document 322 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
i/c/o Iranian Ministry oflnformation and Security,
Imam Khomeini Street
Tehran, Iran
Re: Havlish, et al. v. Bin Laden.
03 MDL 1570 (GBD) - 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
1. Order of Judgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-
01570-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July 30, 2012 (Case No. I :03-cv-09848-GBD, Document 314
3. Memorandum and Order entered by the Honorable George B. Daniels on October 3, 2012 (Case No, 1;03-cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 2012 )Case No. 1 :03-cv-09848-GBD, Document 3 I 7
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
Enc.
-7- Annex 359
. 'i
i
I
!
Case 1:03-cv-09848-GBD-SN Document 322 Filed 11/15/12 P
• · ·
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EXPRESS WORLDWIDE
DHLOnllne
From: MELLON AND WEBSTER PC
R. Rosen Phone: 215-346-7700
67N BROAD ST
DOYLESTOWN PA 18901
United States
XPD
Origin:
ABE
ITo: Ministry of Information and Sec.
c/o Ministry of Foreign Affairs
Imam Khomeini Street
Contact)
Dr. Ali Akbar Saleh
00962161151
TEHRAN
L Iran (Islamic Republic Of)
IR~THR-CHO
Ref-code: Havfish Service Date:
2012-10-29
Shpt Weight:
0.5 lb
Day Time:
Piece:
These commodities, technology or software were exported from the United States in accordance with the
Export Administration Regulations. Oive1'8ion contrary to U.S. law is prohibited.
content:
Legal Documents
WAYBILL 99 6988 6183
(2L)IR+32000064
(J)JD01 2036 4769 7000 4668
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UNITED STA TES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant( s)
USDC SDNY
DOCUlvIENT
ELECTRONICALLY FILED
DOC #:
DATEFILED: 11/15/2012
CERTIFICATE OF MAILING
Case No.: 03MDL1570 (gbcl)
o3cvo1Y4g
I hereby certify under the penalties of pe1jury that on 15th day of NOVEMBER , 20 l.L_, I served:
ALI AKBAR HASHEM! RAFSANJANIAT MINISTER OF FOREIGN AFFAIRS OF THE ISLAMIC REPUBLIC OF
IRAN IMAM KHOMEINI STREET TEHRAN IRAN
□ One copy of the _____ ________ _____________ _
by __________ _ _ _________ , to the individual of the
foreign state, pursuant to the provisions of FRCP 4(f)2(c)(ii).
IXI One copy of the (PLEASE SEE ATTACHED LETTER)
by DHL 99 6987 9360 , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
I 608(a)(3).
D Two copies of the ___ _ ______ __________ _____ _
by _____ _____ _____ ______ , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PlU), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the ________ ____ ___ _ _ _________ _
by _____ ___________ _ ___ _ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated: New York, New York
NOVEMBER 15, 2012
-9- Annex 359
Case 1:03-cv-09848-GBD-SN Document 321 Filed 11/15/12 Page 2 of 3
RUBY]. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
i/c/o Ali Akbar Hashemi Rafsanjani,
Imam Khomeini Street
Tehran, Iran
Re: Havlish, et al. v. Bin Laden,
03 MDL 1570 (GBD) - 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
l . Order of Judgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-
01570-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July 30, 2012 (Case No. 1 :03-cv-09848-GBD, Document 314
3. Memorandum and Order entered by the Honorable George B. Daniels on October 3, 2012 (Case No. l:03-cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 2012 )Case No. 1 :03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
Enc.
-10- Annex 359
Case 1:03-cv-09848-GBD-SN Document 321 Filed 11/15/12
.. ~r'."n, lllf"r- A I .-.... · ... ·
~zzzzzzzzz.~ .
EXPRESS WORLDWIDE
OHL Online
From: MELLON ANO WEBSTER PC
R. Rosen Phone: 215-346-7700
87 N BROAD ST
DOYLESTOWN PA 18901
United States
XPD
Origin:
ABE
Page
!To: Ali Akbar Hashemi Rafsanjani
c/o Ministry of Foreign Affairs
Imam Khomeini Street
Contacf:J
Or. All Akbar Soleh
009821 61151
TEHRAN
L Iran (Islamic Republic Of)
IR-THR-CHO
Date:
2012-10-29
Shpt Weight:
0.5 lb
Day
Piece:
Tt~se commoditles1 technology or software were exported from the United States in accordance with the
Export Administration Regulations. Diverston contrary to U.S. law is prohibited.
Content:
Legal Documents
WAYBILL 99 6987 9360 I I
(J)JD01 2036 4769 7000 3802
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Case 1:03-cv-09848-GBD-SN Document 323 Filed 11/15/12 Pa e 1 of 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant( s)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATEFILED: 11/15/2012
CERTIFICATE OF MAILING
Case No.: 03MDL1570 (gbtj)
·">;) ,1 • ..,q,;;;1.1g, t),,:J ~__,,v u u -1
I hereby certify under the penalties ofpetjury that on 15th day of NOVEMBER , 20.11_, I served:
ISLAMIC REVOLUNTIONARY GUARD CORPS AT MINISTER OF FOREIGN AFFAIRS OF THE ISLAMIC
REPUBLIC OF IRAN IMAM KHOMEINI STREET TEHRAN IRAN
,--- - , One copy of the ___________________ ___ ___ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
IXI One copy of the (PLEASE SEE ATTACHED LETTER)
by OHL 99 6987 9360 , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
1608(a)(3).
D Two copies of the ____ _ _____ ____________ ___ _
by _____________________ ., to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRJ), U.S. Department of State, SA-29, 4th Floor, 220 I C Street NW, Washington, DC
20520, pursuant to the provisions ofForeign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the ______________ ____________ _
by __________________ ___ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Datcd:Ncw York, New York
NOVEMBER 15, 2012
-12- Annex 359
Case 1:03-cv-09848-GBD-SN Document 323 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
UNITED STATES D ISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
i/c/o Islamic Revolutionary Guard Corps,
Imam Khomeini Street
Tehran, Iran
Re: Havlish, et al. v. Bin Laden,
03 MDL 1570 (GBD) - 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
I. Order of Judgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-mdO
15 70-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July 30, 2012 (Case No. l:03-cv-09848-GBD, Document 314
3. Memorandum and Order entered by the Honorable George B. Daniels on October 3, 2012 (Case No. l:03-cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 2012 )Case No. 1 :03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
Enc.
P1ec,~ot~ /
~UI'J~J -~--/
Ruby 1\ Kr~ick
Clerk of the Court
-13- Annex 359
EXPRESS WORLDWIDE
OHL Online XPD
From: MELLON AND WEBSTER PC
R. Rosen Phone: 215•348-7700
87 NBROAD ST
DOYLESTOWN PA 18901
United State5
ITo: Islamic Revolutionary Guard Corps
c/o Ministry of Foreign Affairs
Imam Khomeini Street
TEHRAN
L Iran (Islamic Republic Of)
IR-THR-CHO
Ref.Code: Havlish Service Date:
2012-10-29
Shpt.Weight:
0.5 lb
Day
Origin:
ABE
Contacl'J
Dr. Ali Akbar Saleh
009821 61151
_J
Time:
Piece;
1/1
These commodities, technology or software were exported from the United States in accordance with the
Export Administration Regulations. Diversion <:enlrary lo U.S. law Is prohibited.
Content:
Legal Documonts
(2L)IR+32000064
(J)JD01 2036 4769 7000 5293
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SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant( s)
USDC SDNY
DOCillvIENT
ELECTRONICALLY F.ILED
DOC#:
DATE FILED: 11/15/2012
CERTIFICATE OF MAILING
Case No.: 03MDL1570 (gbc:V
03~ ii !Y/l?i/8
I hereby certify under the penalties of pe1jury that on 15th day of NOVEMBER , 20 .11_, I served:
HEZBOLLAH, AN UNINCORPORATED ASSOCIATION, MINISTER OF FOREIGN AFFAIRS OF THE
IS LAM IC REPUBLIC OF IRAN IMAM KHOMEINI STREET TEHRAN IRAN
D One copy of the _________________________ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(t)2(c)(ii).
IXI One copy of the (PLEASE SEE ATTACHED LETTER)
by DHL 99 6987 9360 , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U .S.C. §
l 608(a)(3).
D Two copies of the _________________________ _
by _____________________ ., to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 411, Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the __________________________ _
by _____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated:New York, New York
NOVEMBER 15, 2012
-15-
RUBY J. KRAJICK
CLERK OF COURT'
TY CLERK ore
Annex 359
Case 1:03-cv-09848-GBD-SN Document 324 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
UNITED STATES D ISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
i/c/o Hezbollah, an unincorporated association,
Imam Khomeini Street
Tehran, Iran
Re: Havlish. et al. v. Bin Laden,
03 MDL 1570 (GBD)- 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
1. Order of Judgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-
01570-GBD-FM, Document 2516
2. Repmt and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July 30, 2012 (Case No. l :03-cv-09848-GBD, Document 314
3. Memorandum and Order entered by the Honorable George B. Daniels on October 3, 2012 (Case No. 1:03 -cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 2012 )Case No. 1 :03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
tttnJC[tZ-· R~bl Rtajick y
Clerk of the Court
Enc.
-16- Annex 359
EXPRESS WORLDWIDE
DHLOnllne
From: MELLON AND WEBSTER PC
R. Rosen Phone: 215-348-7700
87 N BROAD ST
DOYLESTOWN PA 18901
United Stat ..
!To: Hezbollah
XPD
c/o Ministry of Foreign Affairs
Imam Khomeini Street
TEHRAN
L Iran {Islamic Republic Of)
IR-THR-CHO
Date: Shpt Weight:
2012, 10-29 O.S lb
Day
Origin:
ABE
Contacf:J
Dr. Ali Akbar Saleh
009821 61151
_J
Time: .
Piece:
1/1
These commodities, technology or software were exported from.the United States In accordance with the
Export Administration Regulations. Diversion contrary to U.S. taw Is_ prohibited.
Content:
Legal Documents
WAYBILL 99 6989 6786
(J)JD01 2036 4769 7000 5915
-17- Annex 359
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant( s)
USDC SDNY
DOCUMENT
ELECTRON1CALLY FILED
DOC#:
DATE FILED: 11/15/2012
CERTIFICATE OF MAILING
CaseNo.: 03MDL1570 (gbci)
o3 (!-VDo/.?t/~
I hereby certify under the penalties of petjury that on 15th day of NOVEMBER , 20 .ll_, I served:
IRANIAN MINISTRY OF PETROLEUM AT MINISTER OF FOREIGN AFFAIRS OF THE ISLAMIC REPUBLIC
OF IRAN IMAM KHOMEINI STREET TEHRAN IRAN
D One copy of the _________________________ _
by _____________________ , to the individual of the
foreign state, pursuanL to the provisions ofFRCP 4(f)2(c)(ii).
IXI One copy of the (PLEASE SEE ATTACHED LETTER)
by OHL 99 6987 9360 , to the bead of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
1608(a)(3).
D Two copies of the _________________________ _
by _____________________ , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 220 I C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the _ _________________________ _
by _ __________ __________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § !608(b)(3)(B).
Dated:New York, New York
NOVEMBER 15, 2012
-18- Annex 359
Case 1:03-cv-09848-GBD-SN Document 325 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
i/c/o Iranian Ministry of Petroleum,
Imam Khomeini Street
Tehran, Iran
Re: Havlish, et al. v. Bin Laden,
03 MDL 1570 (GBD) - 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
I. Order of Judgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-mdO
1570-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July 30, 2012 (Case No. 1 :03-cv-09848-GBD, Document 314
1. Memornncium and Order entered hy the Honorahle George B. Daniels on October 3, 20 12 (Case No. l:03 -cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 2012 )Case No. l :03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
Enc.
-19- Annex 359
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EXPRESS WORLDWIDE
OHL Online
From: MElLON AND WEBSTER PC
R. Rosen Phone: 215-348-7700
87 NBROAD ST
DOYLESTOWN PA 18901
United States
XPD
Origin:
ABE
!To: Iranian Ministry of Petroleum
c/o Ministry of Foreign Affairs
Imam Khomeini Street
Contacl:I
Dr. ;<\Ii Akbar Saleh
009821 61151
TEHRAN
L Iran (Islamic Republic Of)
IR-THR-CHO
Date:
2012-10-29
Shpt Weight:
0.5 lb
Day Time;
Piece:
These commodiltes, technology or software were exported from the United States In accordance with the
Export Administration Regulal.Ons. Oiversion contrary to U.S. Jaw is prohibited.
C-Ontent:
Legal Documents
WAYBILL 99 6990 6785
(J)JD01 2036 4769 7000 7129
-20-
_J
1/1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant(s)
USDC SDNY
DOCillvIENT
ELECTRONICALLY FILED
DOC#:
DATEFILED: 11/15/2012
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gbcb
-03W099i-£f
I hereby certify under the penalties of perjury that on 15th day of NOVEMBER , 20 -1.L_, I served:
NATIONAL IRANIAN TANKER CORPORATION AT MINISTER OF FOREIGN AFFAIRS OF THE ISLAMIC
REPUBLIC OF IRAN IMAM KHOMEINI STREET TEHRAN IRAN
r-- , One copy of the _________________________ _
by _____________________ , to the indi vidual of the
fo reign state, pursuant to the provisions of FRCP 4(f)2( c)(ii).
I-XI One copy of the (PLEASE SEE ATTACHED LETTER)
by OHL 99 6987 9360 , to the head of the ministry
of foreign affai rs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
D Two copies of the _________________________ _
by _____________________ , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4il• Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the _______ ___________________ _
by _ ____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U .S .C. § I 608(b)(3)(B).
Dated:New York, New York
NOVEMBER 15, 2012
-21-
RUBY J. KRAJICK
CLERK OF C9,,ill~.T ~:.=:::...:J~1:~~~~~:'__.
Name:J.E.8.N IN E'="--'-'-'--='-''-'-'-''--
UTY CLERK OF COURT
Annex 359
Case 1:03-cv-09848-GBD-SN Document 326 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
i/c/o National Iranian Tanker Corporation,
Imam Khomeini Street
Tehran, Iran
Re: Havlish, et al. v. Bin Laden,
03 MDL 1S70 (GBD) - 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
1. Order of Judgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-
01570-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July 30, 2012 (Case No. 1 :03-cv-09848-GBD, Document 314
3. Memorandum imd Order entered by the Honorable George B. Daniels on October 3, 2012 (Case No. I :03-cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 2012 )Case No. I :03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 1 S packages on the
other Defendants in the Havlish action.
Enc.
-22- Annex 359
~.·,_zzzzzzzzz~
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EXPRESS WORLDWIDE
OHL Online
From·: MELLON ANO WEBSTER PC
R. Rosen Phone: 215-348-7700
87 N BROAD ST
DOYLESTOWN PA 16901
United States
XPD
Origin;
ABE
!To: National Iranian Tanker Corporation
c/o Ministry of Foreign Affairs
Contacf:J
Dr. Ali Akbar Saleh
009821 61151
Imam Khomeini Street
TEHRAN
L Iran (Islamic Republic Of)
IR-THR-CHO
Date:
2012-10-29
Shpt Weight
0.5 lb
Day Time:
Piece:
. These commodities, technology or software were exported from the United States. in accordance with the
E)(port Administration Regulations. Diversion contrary to U.S. law is prohibited.
Content
Legal Documents
WAYBILL 99 6991 5303
(2L)IR+32000064
(J)JD01 2036 4769 7000 8171
_J
1/1
'. \JR.
·TER ·:m
.r
·!
UNlTED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant(s)
USDC SDNY
DOCUlvIENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 11/15/2012
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gbq)
Q3{:,-V0184-ff
I hereby certify under the penalties of pe1jury that on 15th day of NOVEMBER , 20 12 , I served:
NATIONAL IRANIAN OIL CORPORATION AT MIN ISTER OF FOREIGN AFFAIRS OF THE ISLAMIC
REPUBLIC OF !RAN IMAM KHOMEINI STREET TEHRAN IRAN
□ One copy of the ___ _______ _________ _ _ ____ _
by _ ____________________ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
I-XI One copy of the (PLEASE SEE ATTACHED LETTER)
by DHL 99 6987 9360 , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
1608(a)(3).
D Two copies of the _____ ____ ________________ _
by _______________ ______ , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the _ ______ ________________ ___ _
by--- ---- ---- ---------- ~ to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated:New York, New York
NOVEMBER 15, 2012
-24-
RUBY J. KRAJlCK
CLERK OF co1A1.-rr
- ?>}' ,1··
UTYCLERK .
Annex 359
Case 1:03-cv-09848-GBD-SN Document 327 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
UNITED STATES D ISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
i/c/o National Iranian Oil Corporation,
Imam Khomeini Street
Tehran, Iran
Re: Havlish, et al. v. Bin Laden,
03 MDL 1570 (GBD) - 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
1. Order of Judgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-
01570-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July 30, 2012 (Case No. 1 :03-cv-09848-GBD, Document 314
3. Mf.momnci11m ~nci Orcir.r r.ntr.rnci hy the Honornhle George R. Daniels on Octoher 3, 2012 (Case No. 1 :03-cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 20 12 )Case No. 1 :03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic oflran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
Enc.
-25- Annex 359
EXPRESS WORLDWIDE
OHL Online XPD
From: MELLON AND WEBSTER PC
R. Rosen Phone: 215-348-7700
87 NBROADST
DOYLESTOWN PA 18901
United Suite•
!To: National Iranian Oil Corporation
c/o Ministry of Foreign Affairs
Imam Khomeini Street
TEHRAN
L Iran (Islamic Republic Of)
IR-THR-CHO
Date:
2012-10-29
Shpt Weight:
0.5 lb
Doy
Origin:
ABE
Contacl:J
Dr. Ali Akbar Saleh
009821 61151
_J
Time:
Piece:
1/1
These commodities, technology or software were e<ported from the UMed Stales In accordance with the
Exp~rt Administration Regulations. Oiveision contrary to U.S. faw is prohibited.
Content:
Legal Documents
(J)JD01 2036 4769 7000 9203
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant(s)
USDC SDNY
DOCUMENT
ELECTRON1CALLY FILED
DOC#: ______ _
DATE FILED: 11/15/2012
CERTIFICATE OF MAILING
Case No.: 03MDL1570 (gbd)
D3f)lt/f f?l[f
1 hereby certify under the penalties of pe1jury that on 15th day of NOVEMBER
IRAN AIRLINES AT MINISTER OF FOREIGN AFFAIRS OF THE ISLAMIC
, 20 ll.._, I served:
REPUBLIC OF IRAN IMAM KHOMEINI STREET TEHRAN IRAN
D One copy of the ________ _________________ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii). ,x, One copy of the (PLEASE SEE ATTACHED LETTER)
by OHL 99 6987 9360 , to the head of the ministry
of fo reign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
1608(a)(3).
D Two copies of the ___________________ ______ _
by _____________________ __, to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRl), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § I 608(a)(4).
D One copy of the _____ _____________________ _
by _____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated:New York, New York
NOVEMBER 15, 2012
RUBY J. KRAJICK
CLERK oz2:c.o. T n ,,. - . :;I,. ..<, -1-::-,.
~~u~ awz_; . ?!A-U/~
( ,,/Print Na,ne:lE._Ab!lN.lVl'ERA-SAN
./ DEPUTY CLERK OF COURT
-27- Annex 359
Case 1:03-cv-09848-GBD-SN Document 329 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
i/c/o National Iranian Airlines,
Imam Khomeini Street
Tehran, Iran
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
Re: Havlish, et al. v. Bin Laden,
03 MDL 1570 (GBD)- 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §l608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
l . Order of Judgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. l :03-md-
01570-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July 30, 2012 (Case No. 1 :03-cv-09848-GBD, Document 314
3. Memorandum and Order entered by the Honorable George B. Daniels on October 3, 2012 (Case No. 1:03-cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 20 I 2 )Case No. 1 :03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
jspecg. 12 • : ti Dtt ,, :::: / ~~ . jick ./
Clerk f the Court
Enc.
-28- Annex 359
;rrt~\
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EXPRESS WORLDWIDE
DHLOnllnc XPD
From: MELLON AND WEBSTER PC
R. Rosen Phone: 215-348-7700
87 NBROAD ST
DOYLESTOWN PA 18901
United States
ITo: Iran Airlines
c/o Ministry of Foreign Affairs
Imam Khomeini Street
TEHRAN
L Iran (Islamic Republic Of)
IR-THR-CHO
Date:
2012-10-29
Shpt Weight:
0.5 lb
Day
Origin:
ABE
Conta;;q
Or. Ali Akbar Saleh
00982161151
_J
Time;
Pieoe:
1/1
These commodities, technology or software were exponed from the United States in accordance with the
Export Administration Regulations. Dive rsion contrary to U.S. law Is prohibited.
Content;
Legal Documents
WAYBILL 99 6993 4461
(J)JD01 2036 4769 7001 0597
,._
'l-- ~ 59
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant(s)
USDC SDNY
DOCUlvIENT
ELECTRONICALLY FILED
DOC#:
DATE FILED 11/15/2012
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gbct)
D3 CAIIJC/ gi.lgi
I hereby certify under the penalties of perjury that on 15th day of NOVEMBER , 20 Jl._, I served:
NATIONAL IRANIAN PETROCHEMICAL COMPANY AT MINISTER OF FOREIGN AFFAIRS OF THE
ISLAMIC REPUBLIC OF IRAN IMAM KHOMEINI STREET TEHRAN !RAN
□ One copy of the _ _ _ ________ _ _____ _________ _
by ________________ ___ __ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
IXI One copy of the (PLEASE SEE ATTACHED LETTER)
by DHL 99 6987 9360 , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
I 608(a)(3).
D Two copies of the _ _ _ _ _ ___ _ _ _ ___ _ ___ _____ _ _ _
by _______ _______ _ _ _ _ ___ , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington , DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the ____ _ ___ _______________ ___ _
by _ ___ _ _ _ _______ _ _____ _ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § I608(b)(3)(B).
Dated:Ncw York, New York
NOVEMBER 15, 2012
-30- Annex 359
Case 1:03-cv-09848-GBD-SN Document 330 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
i/c/o National Iranian Petrochemical Company,
Imam Khomeini Street
Tehran, Iran
Re: Havlish, et al. v. Bin Laden,
03 MDL 1570 (GBD)- 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
1. Order of Judgment entered by the Honorable George B. Daniels on December 22, 20 I I (Case No. I :03-md-
01570-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July 30, 2012 (Case No. 1 :03-cv-09848-GBD, Document 314
3. Memorandum and Order entered by the Honorable George B. Daniels on Octoher 3, 2012 (Case No. I :03-cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 2012 )Case No. l:03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
Respectfully } ·rs,
F) ;I /'¼I ~ l v..· • .. .
I
. aj ck :
~of eCo
Enc.
-31- Annex 359
I
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~---~, •• """ ... - ■ _.,... ~zzzzzzzzz.~~
EXPRESS WORLDWIDE
OHL Online XPD
From: MELLON ANO WEBSTER PC
R Rosen Phone: 215-348-7700
87 N BROAD ST
DOYLESTOWN PA 18901
United State•
!To: National Iranian Petrochemical Co.
c/o Ministry of Foreign Affairs
Imam Khomeini Street
TEHRAN
L Iran (Islamic Republic Of)
IR-THR-CHO
Date:
2012-10-29
Shpt Weight:
0.5 lb
Day
Origin:
ABE
Contact:]
Dr. Att Akbar Saleh
009821 61151
_j
Time;
Piece:
1/1
These commodities, technology or software were exported from the United Stales In accordance with the
E>eport Administration Regulations. Diversion contrary to U.S. Jaw Is prohibited.
Content:
Legal Documents
WAYBILL 99 6993 6266
(2L)IR+32000064
(J)JD01 2036 4769 7001 0826
-32- Annex 35
'
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant(s)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATEFILED: 11/15/2012
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 S, (gbd)
03 C,v' [) 981f
I hereby certify under the penalties ofpetjury that on 15th day of NOVEMBER , 2011.__, I served:
IRANIAN MINISTRY OF ECONOMIC AFFAIRS AND FINANCE AT MINISTEROF FOREIGN AFFAIRS OF
THE ISLAMIC REPUBLIC OF IRAN IMAM KHOMEINI STREET TEHRAN IRAN
D One copy of the _____________________ ____ _
by _______________ _ _____ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
l·XI One copy of the (PLEASE SEE ATTACHED LETTER)
by DHL 99 6987 9360 , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
D Two copies of the _________________________ _
by---------------------~ to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions ofForeign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the _______________ ___________ _
by _____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Datcd:New York, New York
NOVEMBER 15, 2012
-33- Annex 359
Case 1:03-cv-09848-GBD-SN Document 331 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
i/c/o Iranian Ministry of
Economic Affairs and Finance,
Imam Khomeini Street
Tehran, Iran
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
Re: Havlish, et al. v. Bin Laden,
03 MDL 1570 (GBD) - 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S .C. §1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
1. Order of Judgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-
01570-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July :rn, 2012 (Case No. 1 :03-cv-09848-GBD, Document 314
3. Memorandum and Order entered by the Honorable George B. Daniels on October 3, 2012 (Case No. 1 :03-cv-
09848-GBD, Document 316 ·
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 2012 )Case No. I :03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
-34- Annex 359
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United States
· ITo: Ministry of-Econ. Affairs & Fin.
c/o Ministry of Foreign Affairs
·Imam Khomeini Street
TEHRAN
L Iran (Islamic Republic Of)
IR-THR-CHO
Date:
2012-10·29
Shpt Weight:
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Origin:
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ContactJ
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00982161151
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HAVLISH, ET AL.
Plaintiff(s)
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Defendant(s)
USDCSDNY
DOCU1v1ENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 11/15/2012
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gbq)
D3 0Vo78if6'
I hereby certify under the penalties of pe1jury that on 15th day of NOVEMBER , 20_12_, I served:
IRANIAN MINISTRY OF COMMERCE AT MINISTEROF FOREIGN AFFAIRS OF THE ISLAMIC REPUBLIC
OF IRAN IMAM KHOMEINI STREET TEHRAN !RAN
D One copy of the _________________________ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
IXI One copy of the (PLEASE SEE ATTACHED LETTER)
by DHL 99 6987 9360 , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
D Two copies of the _________________________ _
by _____________________ , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 220 l C Street NW, Washington, DC
205 20, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § I 608(a)( 4).
D One copy of the __________________________ _
by _____________________ __, to the head of the agency or
instrumentality of the fore ign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § l 608(b)(3)(B).
Dated:New York, New York
NOVEMBER 15, 2012
RlJBY ,J. KRAJICK
CLERK OF S?;m1' ,.
~M.r~;t;;©
~ 1e:JEANlNEVJ,E~AN 0
DEPUTY CLERK OF COURT
-36- Annex 359
Case 1:03-cv-09848-GBD-SN Document 332 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
i/c/o Iranian Ministry of Commerce,
Imam Khomeini Street
Tehran, Iran
Re: Havlish, et al. v. Bin Laden,
03 MDL 1570 (GBD) - 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
1. Order of Judgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. I :03-md-
01570-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July 30, 2012 (Case No. 1 :03-cv-09848-GBD, Document 314
3. Memorandum and Order entr.re:ci hy the Honornhlr. George B. Daniels on October 3, 2012 (Case No. 1 ;03-cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 2012 )Case No. 1 :03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
Enc.
-37- Annex 359
EXPRESS WORLDWIDE
OHL Online XPD
From: MELLON ANO WEBSTER PC
R. Rosen Phone: 215-348-7700
87N BROAD ST
DOYLESTOWN PA 18901
United Stales
f"i-o: Iranian Ministry of Commerce
c/o Ministry of Foreign Affairs
Imam Khomeini Street
TEHRAN
L Iran (Islamic Republic Of)
IR-THR-CHO
Ref-Code: Hevlish Service Date:
2012-10-29
Shpt Weight:
0.5 lb
Day
Origin:
ABE
Contacf:'I
Or, Ali Akbar Saleh
009821 61151
_J
Time:
Piece:
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These commodities, technology or software were exported from the United States in accordance with the
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Content:
Legal Documents
(J)JD0120364769 7001 1755
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant( s)
USDCSDNY
DOCUlvIENT
ELECTRONIC.ALLY FILED
DOC#:
DATEFILED: 11/15/2012
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gbtj)
03 (],{/ O'Jf?'l-/<f
I hereby certify under the penalties of pe1jury that on 15th day of NOVEMBER , 20 J.L_, l served:
IRANIAN MINISTRY OF DEFENSE AND ARMED FORCES LOGISTICS AT MINISTER OF FOREIGN AFFAIR
OF THE ISLAMIC REPUBLIC OF IRAN IMAM KHOMEINI STREET TEHRAN IRAN
D One copy of the ___________ _ ___ ______ ____ _
by - ------ ----------- - --, to the individual of the
foreign state, pursuant to the provisions of FRCP 4(f)2( c)(ii).
IX I One copy of the (PLEASE SEE A TT ACHED LETTER)
by DHL 99 6987 9360 , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
D Two copies of the _ _ ___ _ ______ _ ___________ _ _
by _ _ ___ _________ _ ______ , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 41h Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the ___ _ ___________ ___________ _
by ____ __________ _ ______ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Datecl: New York, New York
NOVEMBER 15, 2012
RUBY J: KRA.HCK
CL~RK OF COUJ1T
. ~ l . · /J ,
~~/gz '~aaup:
/4lin: Name:JEAN INEVIE~-SAN
Vo°EPUTY CLERK OF COURT
-39- Annex 359
Case 1:03-cv-09848-GBD-SN Document 333 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
i/c/o Iranian Ministry of
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
Defense and Armed Forces Logistics,
Imam Khomeini Street
Tehran, Iran
Re: Havlish. et al. v. Bin Laden,
03 MDL 1570 (GBD) - 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
1. Order of Judgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-
01570-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July 30, 2012 (Case No. 1 :03-cv-09848-GBD, Document 314
3. Memorandum and Order entered by the Honorable George B. Daniels on October 3, 2012 (Case No. 1:03-cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16. 2012 )Case No. 1:03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
-40- Annex 359
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EXPRESS WORLDWIDE
Dt-lLOnline XPD
From: MELLON AND WEBSTER PC
R. Rosen Phone: 215-348-7700
87N BROAD ST
DOYLESTOWN PA 18901
United States
ITo: Iranian Ministry of Defense
c/o Ministry of Foreign Affairs
Imam Khomeini Street
TEHRAN
L Iran (Islamic Republic Of)
IR-THR-CHO
Ref-Code: Havllsh Service Date:
2012-10-29
Shpt Weight:
0.5 lb
Day
Origin~
ABE
Contact:)
Dr. Ali Akbar Saleh
00982161151
_J
Time:
Piece:
1/1
These commOOiUos, technology or software were exported from the Uni1ed States in accordance with the
Export Administration Regulatlons. Diversion contrary to U.S. law is prohibited.
Content:
Legel Documents
WAYBILL 99 6994 5495
(J)JD0120364769 7001 1928
-41-
Page 3 of ·
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HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant(s)
USDCSDNY
DOCUJvffiNT
ELEC'IRONICALLY FILED
DOC#:
DATE FILED: 11 /15/2012
CERTIFICATE OF MAILING
CaseNo.: 03MDL1570 (gbc!)
oJt!4093t-lt
I hereby certify under the penalties of pe1jury that on 15th day of NOVEMBER , 20 J.L_, I served:
THE CENTRAL BANK OF THE ISLAMIC REPUBLIC OF IRAN AT MINISTER OF FOREIGN AFFAIRS OF THE
ISLAMIC REPUBLIC OF IRAN IMAM KHOMEINI STREET TEHRAN IRAN
□ One copy of the ___ _______ _ _____ _ _____ _ __ _
by ____________________ _ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii) .
l,XI One copy of the (PLEASE SEE ATTACHED LETTER)
by DHL 99 6987 9360 , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
D Two copies of the __________ _____ __________ _
by _ ________________ ___ _ , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRJ), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the ____________ _ _ ______ _ ____ _ _
by ________ ____ _________ , to the head of the agency or
instrumental ity of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § l608(6)(3)(B).
Dated:New York, New York
NOVEMBER 1 5, 2012
-42-
. mt Naine:J..EANINEYJ:!R£SAN
DEPUTY CLERK OF COURT
Annex 359
Case 1:03-cv-09848-GBD-SN Document 334 Filed 11/15/12 Page 2 of 3
RUBY J. KRAJICK
CLERK OF CLERK
H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs
i/c/o The Central Bank of
the Islamic Republic of Iran,
Imam Khomeini Street
Tehran, Iran
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
November 15, 2012
Re: Havlish, et al. v. Bin Laden,
03 MDL 1570 (GBD) - 03CV9848
Dear Sir:
Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §1608(a)(3), one copy of the following documents are
being served on you on behalf of the Plaintiff in the above-referenced action which names your country and/or a
government office as a defendant:
1. Order of Judgment entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-mdO
l 570-GBD-FM, Document 2516
2. Report and Recommendation to the Honorable George B. Daniels issued by U.S. Magistrate Judge Frank Maas on
July 30, 2012 (Case No. l:03-cv-09848-GBD, Document 314
3. Memorandum and Order entered by the Honorable George B. Daniels on October 3, 2012 (Case No. I :03-cv-
09848-GBD, Document 316
4. Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012, and docketed on October
16, 2012 )Case No. l:03-cv-09848-GBD, Document 317
5. Affidavit from the translator for each Defendant
6. A Cover letter, translated into Farsi, which requests that the Minister of Foreign Affairs accept one package of
legal documents for himself, on behalf of the Islamic Republic of Iran, and serve the remaining 15 packages on the
other Defendants in the Havlish action.
~;G'lJ/:2 -. .
Ruby W-aj;ck 1/ Clerk :te Court
-43- Annex 359
EXPRESS WORLDWIDE
DHLOnllne XPD
From: MELLON AND WEBSTER PC
R. Rosen Phone: 215-348-7700
87 N BROAD ST
DOYLESTOWN PA 18901
United States
!To: Central Bank of Iran (Markazi)
c/o Ministry of Foreign Affairs
Imam Khomeini Street
TEHRAN
L Iran (Islamic Republic Of)
IR-THR-CHO
Date:
2012-10-29
Shpt Weight
0.5 lb
Day
Origin:
ABE
Contacll
Dr. Ali Akbar Saleh
00982161151
_J
Time:
Piece:
1/1
These commodities, technology or software were exported frorn the United States in accordance Wilh the
Expert Administration Regulations. Diversion contrary to U.S. Jaw is prohibited.
Content:
Legal Documents
WAYBILL 99 6994 8306
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.,
Defendant(s)
USDC SDNY
DOCUlvIENT
ELECTRONICALLY FlLED
DOC#:
DATEFILED: 1/14/2013
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gbcj)
I hereby certify under the penalties of pe1jury that on 14th day of January , 20 .l}_, I served:
ISLAMIC REPUBLIC OF IRAN VIA H.E. DR. ALI AKBAR SALEHI, MINISTER OF FOREIGN AFFAIRS OF
THE ISLAMIC REPUBLIC OF IRAN
D One copy of the ____________ _ ____________ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions of FRCP 4(f)2(c)(ii).
D One copy of the _________________________ _
by _ _____________________ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
IXI Two copies of the PLEASE SEE A TT ACHED LETTER
by FED EX TRACKING# 8000 4543 6672 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the __________________________ _
by _____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated:New York, New York
JANUARY 14, 2013
-45-
RUBY J. KRAJICK
CLERK OF RT
Annex 359
Case 1:03-cv-09848-GBD-SN Document 340 Filed 01/14/13 Page 2 of 5
Notice of Default Judgment prepared in accordance with 22 CFR § 93.2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. 1 :03-md-0 1570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. 1 :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. l:03-cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 2101 (b) .Also enclosed is a money order in the amount of$2,275.00
-46- Annex 359
Case 1:03-cv-09848-GBD-SN Document 340 Filed 01/14/13 Page 3 of 5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW, 4th floor
Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL I 570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. 1 :03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. 1 :03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW§ 2101 (b) Also enclosed is a money order in the
amount of $2,275.00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. §1608(a)(4). I am hereby requesting service upon:
Irans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
1. Islamic Republic of Iran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic oflran
2. Ayatollah Ali Khamenei
Supreme Leader of Iran
3. Akbar Hashemi Rafsanjani
Chairman, Expendiency Discernment Council
-47- Annex 359
Case 1:03-cv-09848-GBD-SN Document 340 Filed 01/14/13 Page 4 of 5
4. Iranian Ministry of Information and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11. Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic of Iran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-48-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
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Case 1:03-cv-09848-GBD-SN Document 341 Filed O.w~.a-;;;;l;;;:;i~~ ill;;il&;;;;;;;;;;;;;;;;;;;;;a;;;;;;;;;;aiiiiiiiiiil
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLI SH, ET AL.
Plaintiff( s)
-v-
BIN LADEN, ET AL.,
Defendant( s)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
D.ATEFILED: 1/14/2013
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gbci}
I hereby certify under the penalties of perjury that on 14th day of_Ja_n_u_ar~y ____ , 201..1_, I served:
AYATOLLAH ALI KHAMENENI SUPREME LEADER OF IRAN
D One copy of the _______ ____ ______________ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
D One copy of the _ _ _ _____________________ _ _
by _ _____________________ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S .C. §
I 608(a)(3).
1:x1 Two copies of the PLEASE SEE ATTACHED LETTER
by FED EX TRACKING# 8000 4543 6661 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § l608(a)(4).
D One copy of the __________________________ _
by _____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated:New York, New York
JANUARY 14, 2013
-50- Annex 359
Case 1:03-cv-09848-GBD-SN Document 341 Filed 01/14/13 Page 2 of 4
Notice of Default Judgment prepared in accordance with 22 CFR § 93.2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. 1 :03-md-01570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. 1 :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. 1:03 -cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 2101 (b) .Also enclosed is a money order in the amount of $2,275.00
-51- Annex 359
Case 1:03-cv-09848-GBD-SN Document 341 Filed 01/14/13 Page 3 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW, 4th floor
Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1:03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. 1 :03 -cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. 1 :03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW§ 2101 (b) Also enclosed is a money order in the
amount of $2,275.00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. §1608(a)(4). I am hereby requesting service upon:
Irans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
1. Islamic Republic oflran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic oflran
2. Ayatollah Ali Khamenei
Supreme Leader of Iran
3. Akbar Hashemi Rafsanjani
Chairman, Expendiency Discernment Council
-52- Annex 359
Case 1:03-cv-09848-GBD-SN Document 341 Filed 01/14/13 Page 4 of 4
4. Iranian Ministry oflnformation and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11. Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic oflran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-53-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
Case 1:03-cv-09848-GBD-SN Document 342 Filed 01/14/13 Pa e 1 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.,
Defendant(s)
USDC SDNY
DOCUl:vIENT
ELECTRONICALLY FILED
DOC#:
DA TE FILED: 1/14/201 3
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gbc:V
I hereby certify under the penalties ofpe1jury that on 14th day of.=J..a;=n=u=arCLy_ ____, 201]____, I served:
AKBAR HASHEM! RAFSANJANI, CHAIRMAN, EXPEDIENCY DISCERNMENT COUNCIL
D One copy of the _________________________ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
D One copy of the _________________________ _
by ______________________ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
IXI Two copies of the PLEASE SEE ATTACHED LETTER
by FED EX TRACKING# 8000 4543 6640 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the __________________________ _
by _____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions ofForekgn Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated:New York, New York
JANUARY 14, 2013
-54-
RUBY J. KRAJlCK
Annex 359
Case 1:03-cv-09848-GBD-SN Document 342 Filed 01/14/13 Page 2 of 4
Notice of Default Judgment prepared in accordance with 22 CFR § 93.2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. I :03-md-01570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. l:03 -cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. 1 :03-cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 2101 (b) .Also enclosed is a money order in the amount of $2,275.00
-55- Annex 359
Case 1:03-cv-09848-GBD-SN Document 342 Filed 01/14/13 Page 3 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OHICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRA]ICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Pol icy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW 4th floor
'
Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. l :03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. 1 :03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. 1 :03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW § 2101 (b) Also enclosed is a money order in the
amount of $2,275.00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. § 1608(a)( 4). I am hereby requesting service upon:
Irans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
1. Islamic Republic of Iran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic of Iran
2. Ayatollah Ali Khamenei
Supreme Leader oflran
3. Akbar Hasherni Rafsanjani
Chairman, Expendiency Discernment Council
-56- Annex 359
Case 1:03-cv-09848-GBD-SN Document 342 Filed 01/14/13 Page 4 of 4
4. Iranian Ministry oflnformation and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11. Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic of Iran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-57-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
UNITED STATES DISTRfCT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.,
Defendant( s)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 1/14/2013
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gbci)
I hereby certify under the penalties ofpe1jury that on 14th day of_Ja_n_u_a~ry ____ , 20_u__, I served:
IRANIAN MINISTRY OF INFORMATION AND SECURITY
D One copy of the ______ ________ ____________ _
by ---------------------~ to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
D One copy of the _________________________ _
by _ _____________________ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U .S.C. §
l 608(a)(3).
l:XI Two copies of the PLEASE SEE ATTACHED LETTER
by FED EX TRACKING# 8000 4543 6639 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washi ngton, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the __________________________ _
by _____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated:New York, New York
JANUARY 14, 2013
-58- Annex 359
Case 1:03-cv-09848-GBD-SN Document 343 Filed 01/14/13 Page 2 of 4
Notice of Default Judgment prepared in accordance with 22 CFR § 93.2,
Order ofJudgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. 1 :03-md-01570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. 1 :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. 1 :03-cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW § 2101 (b) .Also enclosed is a money order in the amount of $2,275.00
-59- Annex 359
Case 1:03-cv-09848-GBD-SN Document 343 Filed 01/14/13 Page 3 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW, 4th floor
Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. 1 :03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. 1:03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW § 210 I (b) Also enclosed is a money order in the
amount of $2,275.00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. § 1608(a)(4). I am hereby requesting service upon:
Irans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
I. Islamic Republic oflran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic oflran
2. Ayatollah Ali Khamenei
Supreme Leader of Iran
3. Akbar Hashemi Rafsanjani
Chairman, Expendiency Discernment Council
-60- Annex 359
Case 1:03-cv-09848-GBD-SN Document 343 Filed 01/14/13 Page 4 of 4
4. Iranian Ministry of Information and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11. Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic oflran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-61-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
Case 1:03-cv-09848-GBD-SN Document 344 Filed 01/14/13 Pa e 1 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.,
Defendant(s)
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATEFILED: 1/14/2013
CERTIFICATE OF MAILING
Case No.: 03MDL1570 (gbcP
I hereby certify under the penalties of pe1jury that on 14th day of-=--Ja=n-'--"u=a'--'-ry _____ , 20 Jl_, I served:
ISLAMIC REVOLUNTIONARY GUARD CORP.
D One copy of the _________________________ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions of FRCP 4( f)2( c )(ii).
D One copy of the _________________________ _
by _____________________ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
IXI Two copies of the PLEASE SEE ATTACHED LETTER
by FED EX TRACKING# 8000 4543 6628 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the __________________________ _
by _____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated:New York, New York
JANUARY 14, 2013
-62-
RUBY J. KRAJICK
CLERKO ,
Annex 359
Case 1:03-cv-09848-GBD-SN Document 344 Filed 01/14/13 Page 2 of 4
Notice of Default Judgment prepared in accordance with 22 CFR § 93.2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. 1:03-md-01570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. I :03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. 1:03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. I :03-cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 210 l (b) .Also enclosed is a money order in the amount of $2,275.00
-63- Annex 359
Case 1:03-cv-09848-GBD-SN Document 344 Filed 01/14/13 Page 3 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW, 4th floor
Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. I :03-md-0 1570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. 1:03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. l:03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW§ 2101 (b) Also enclosed is a money order in the
amount of $2,275 .00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S .C. § 1608(a)(4). I am hereby requesting service upon:
lrans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
1. Islamic Republic of Iran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic oflran
2. Ayatollah Ali Khamenei
Supreme Leader oflran
3. Akbar Hashemi Rafsanjani
Chairman, Expendiency Discernment Council
-64- Annex 359
Case 1:03-cv-09848-GBD-SN Document 344 Filed 01/14/13 Page 4 of 4
4. Iranian Ministry of Information and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
l 0. National Iranian Gas Company
11. Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic of Iran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-65-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.,
Defendant(s)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATEFILED: 1/14/2013
CERTIFICATE OF MAILING
CaseNo.: 03MDL1570 (gbcj)
I hereby certify under the penalties ofpe1jury that on 14th day of_Ja_n_u_a~ry _____ , 20_JJ___, I served:
HEZBOLLAH AN UNINCORPORATED ASSOCIATION
D One copy of the ____________________ _ _ ___ _
by _ _ ___________________ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
D One copy of the _______________________ __ _
by ________________ ____ _ _ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S .C. §
l 608(a)(3).
l1XI Two copies of the PLEASE SEE ATTACHED LETTER
by FED EX TRACKING# 8000 4543 6606 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions ofForeign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
Ii I Onecopyofthe _____________ _ _ _ ___ ___ ____ _
by _____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated: New York, New York
JANUARY 14, 2013
-66-
RUBY J. KRAJICK
CLERK OF COU T
Annex 359
Case 1:03-cv-09848-GBD-SN Document 345 Filed 01/14/13 Page 2 of 4
Notice of Default Judgment prepared in accordance with 22 CFR § 93.2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. 1 :03-md-01570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
20 12 (Case No. 1 :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. 1 :03-cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 2101 (b) .Also enclosed is a money order in the amount of $2,275.00
-67- Annex 359
Case 1:03-cv-09848-GBD-SN Document 345 Filed 01/14/13 Page 3 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW, 4th floor
Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1:03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. l:03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. 1 :03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW § 210 I (b) Also enclosed is a money order in the
amount of $2,275.00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. §1608(a)(4). I am hereby requesting service upon:
lrans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
1. Islamic Republic of Iran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic oflran
2. Ayatollah Ali Khamenei
Supreme Leader of Iran
3. Akbar Hashemi Rafsanjani
Chairman, Expendiency Discernment Council
-68- Annex 359
Case 1:03-cv-09848-GBD-SN Document 345 Filed 01/14/13 Page 4 of 4
4. Iranian Ministry of Information and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11. Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic of Iran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-69-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.,
Defendant( s)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: ______ _
DATEFILED: 1/14/2013
CERTIFICATE OF MAILING
CaseNo.: 03MDL1570 (gbci)
I hereby certify under the penalties of pe1jury that on 14th day of-=-Ja=n=u=a:..Lry _____ , 20 JJ_, I served:
IRANIAN MINISTRY OF PETROLEUM
D One copy of the ___________ ______________ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions of FRCP 4(f)2( c )(ii).
D One copy of the _____ ____________________ _
by __________ ___________ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
1608(a)(3).
1:x I Two copies of the PLEASE SEE An ACHED LETTER
by FED EX TRACKING# 8000 4543 6508 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRl), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pmsuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the __________________________ _
by ______ _______________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § I608(b)(3)(B).
Dated: New York, New York
JANUARY 14, 2013
-70- Annex 359
Case 1:03-cv-09848-GBD-SN Document 346 Filed 01/14/13 Page 2 of 4
Notice of Default Judgment prepared in accordance with 22 CFR § 93.2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. 1 :03-md-0 1570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. l:03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. 1 :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. 1 :03-cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 2101 (b) .Also enclosed is a money order in the amount of $2,275.00
-71- Annex 359
Case 1:03-cv-09848-GBD-SN Document 346 Filed 01/14/13 Page 3 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
( CA/OCS/P RI)
2201 Street NW, 4th floor
Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2, Order of Judgement
entered by the Honorable George B. Daniels on December 22,2011 (Case No. 1 :03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. 1 :03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. l:03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW § 2101 (b) Also enclosed is a money order in the
amount of $2,275.00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. §1608(a)(4). I am hereby requesting service upon:
Irans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
1. Islamic Republic of Iran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic of Iran
2. Ayatollah Ali Khamenei
Supreme Leader of Iran
3. Akbar Hashemi Rafsanjani
Chairman, Expendiency Discernment Council
-72- Annex 359
Case 1:03-cv-09848-GBD-SN Document 346 Filed 01/14/13 Page 4 of 4
4. Iranian Ministry of Information and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11 . Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic oflran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-73-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff( s)
-v-
BIN LADEN, ET AL.,
Defendant(s)
USDC SDNY
DOCUlvIENT
ELECTRONICALLY FILED
DOC#:
DATEFILED: 1/14/2013
CERTIFICATE OF MAILING
Case No.: 03MDL1570 (gb~
l hereby certify under the penalties of perjury that on 14th day of~Ja~n~u~ar~y ____ , 201..i_, I served:
NATIONAL IRANIAN TANKER CORPORATION
□ One copy of the ______ ___________________ _
by __________________ _ __ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
D One copy of the ______________________ ___ _
by _________ _ _ __________ , to the head of the ministry
of foreign affa irs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
1608(a)(3).
l)<'.I Two copies of the PLEASE SEE ATTACHED LETTER
by FED EX TRACKING# 8000 4543 6569 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4°' Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the __________________________ _
by _____________________ , to the head of the agency or
instrumentality of the fo reign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S .C. § 1608(b)(3)(B).
Dated: New York, New York
JANUARY 14, 2013
-74-
RUBY J. KRAJICK
CLERK OF COURT
~}u;u,,.~
rint Nam0:JEANINEVIER~ ~
DEPUTY CLERK OF COURT
Annex 359
Case 1:03-cv-09848-GBD-SN Document 347 Filed 01/14/13 Page 2 of 4
Notice of Default Judgment prepared in accordance with 22 CFR § 93.2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. 1:03-md-01570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. 1:03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
20 I 2 (Case No. 1 :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. 1 :03-cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 2101 (b) .Also enclosed is a money order in the amount of $2,275.00
-75- Annex 359
Case 1:03-cv-09848-GBD-SN Document 347 Filed 01/14/13 Page 3 of 4
UNITED STATES D ISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW, 41h floor
Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1:03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. 1 :03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. 1 :03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW§ 2101 (b) Also enclosed is a money order in the
amount of $2,275.00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. §1608(a)(4). I am hereby requesting service upon:
!rans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
1. Islamic Republic of Iran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic oflran
2. Ayatollah Ali Khamenei
Supreme Leader of Iran
3. Akbar Hashemi Rafsanjani
Chairman, Expendiency Discernment Council
-76- Annex 359
Case 1:03-cv-09848-GBD-SN Document 347 Filed 01/14/13 Page 4 of 4
4. Iranian Ministry oflnformation and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11 . Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic oflran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-77-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff( s)
-v-
BIN LADEN, ET AL.,
Defendant( s)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED : 1/14/2013
CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gbci)
I hereby certify under the penalties ofpe1jury that on 14th day of~Ja=n~u=a~ry ____ , 20JJ_, I served:
NATIONAL IRANIAN OIL CORPORATION
D One copy of the _______ _________________ _ _
by - --------------------, to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
D One copy of the _________________________ _
by _____________________ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
l!XI Two copies of the PLEASE SEE ATTACHED LETTER
by FED EX TRACKING# 8000 4543 6570 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § I 608(a)( 4).
D One copy of the __________________________ _
by _____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § l 608(b )(3)(B).
Dated: New York, New York
JANUARY 14, 2013
-78-
RUBY J. KRAJICK
CLER. K :'F CU:~·
U-~ ,-- . ,
r · tN,mo,JEANINElllE -SA~
DEPUTY CLERK OF COU "T
Annex 359
Case 1:03-cv-09848-GBD-SN Document 348 Filed 01/14/13 Page 2 of 4
Notice of Default Judgment prepared in accordance with 22 CFR § 93 .2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. 1 :03-md-0 1570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. 1:03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. 1 :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. l :03-cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 2101 (b) .Also enclosed is a money order in the amount of $2,275 .00
-79- Annex 359
Case 1:03-cv-09848-GBD-SN Document 348 Filed 01/14/13 Page 3 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW, 4th floor
Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. 1 :03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. 1 :03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW§ 2101 (b) Also enclosed is a money order in the
amount of $2,275.00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U .S.C. § 1608(a)( 4). I am hereby requesting service upon:
I rans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
1. Islamic Republic of Iran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic oflran
2. Ayatollah Ali Khamenei
Supreme Leader of Iran
3. Akbar Hashemi Rafsanjani
Chairman, Expendiency Discernment Council
-80- Annex 359
Case 1:03-cv-09848-GBD-SN Document 348 Filed 01/14/13 Page 4 of 4
4. Iranian Ministry ofinformation and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11. Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic of Iran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-81-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
UNITED STA TES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
USDC SDNY
DOCUN.IENT
ELEC1RONICALLYFILED
DOC#:
DATE FILED: 1/14/2013
Plaintiff(s) CERTIFICATE OF MAILING
Case No.: 03MDL1570 (gbcl)
-v-
BIN LADEN, ET AL.,
Defendant(s)
I hereby certify under the penalties ofpetjury that on 14th day of~Ja~n~u~ar~y ____ , 20n_, I served:
NATIONAL IRANIAN GAS COMPANY
D One copy of the __ ___ _____ _______________ _
by _ _____ _ _ ____________ _ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(t)2(c)(ii).
D One copy of the _________________________ _
by _______ _______________ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
!:XI Two copies of the PLEASE SEE ATTACHED LETTER
by FED EX TRACKING# 8000 4543 6650 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4t1, Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the ____ ______________________ _
by------ --------- ------~ to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated:New York, New York
JANUARY 14, 2013
RUBY J. KRAJICK
'\: CLE. RKOFJt; .~ . .
( i~rint Name:JEAN INE\l!ESA;
'--..2JEPUTY CLERK OF COl;RT
-82- Annex 359
Case 1:03-cv-09848-GBD-SN Document 349 Filed 01/15/13 Page 2 of 5
Notice of Default Judgment prepared in accordance with 22 CFR § 93 .2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. 1:03-md-01570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. 1 :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. 1 :03-cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 2101 (b) .Also enclosed is a money order in the amount of $2,275.00
-83- Annex 359
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Case 1:03-cv-09848-GBD-SN Document 349 Filed 01/15/13 Page 4 of 5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW, 4th floor
Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1:03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. 1:03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. 1:03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW § 210 I (b) Also enclosed is a money order in the
amount of $2,275 .00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. §1608(a)(4). I am hereby requesting service upon:
Irans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
1. Islamic Republic oflran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic of Iran
2. Ayatollah Ali Khamenei
Supreme Leader of Iran
3. Akbar Hashemi Rafsanjani
Chairman, Expendiency Discernment Council
-85- Annex 359
Case 1:03-cv-09848-GBD-SN Document 349 Filed 01/15/13 Page 5 of 5
4. Iranian Ministry of Information and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11. Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic of Iran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-86-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
UNITED ST A TES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.,
Defendant(s)
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATEFILED: 1/14/2013
CERTIFICATE OF MAILING
CaseNo.: 03MDL1570 (gbcV
I hereby certify under the penalties ofpe1jury that on 14th day of_Ja_n_u_ar~y _ _ _ _ _ , 20_u__, I served:
IRAN AIRLINES
D One copy of the _ _ _______________ _ _______ _
by _____________________ ., to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(t)2(c)(ii).
D One copy of the _______________ __________ _
by ______ ___ _____________ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
1:x1 Two copies of the PLEASE SEE ATTACHED LETTER
by FED EX TRACKING# 8000 4543 6683 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4). r-I One copy of the------------------ -------- -
by _ ____________________ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated:New York, New York
JANUARY 14, 2013
-87- Annex 359
Case 1:03-cv-09848-GBD-SN Document 350 Filed 01/15/13 Page 2 of 4
Notice of Default Judgment prepared in accordance with 22 CFR § 93 .2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. 1 :03-rnd-01570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. 1 :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. 1 :03-cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 2101 (b) .Also enclosed is a money order in the amount of $2,275 .00
-88- Annex 359
Case 1:03-cv-09848-GBD-SN Document 350 Filed 01/15/13 Page 3 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW, 411' floor
Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1:03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. l :03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. I :03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW § 2101 (b) Also enclosed is a money order in the
amount of $2,275.00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. §1608(a)(4). I am hereby requesting service upon:
!rans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
1. Islamic Republic of Iran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic oflran
2. Ayatollah Ali Khamenei
Supreme Leader of Iran
3. Akbar Hashemi Rafsanjani
Chairman, Expendiency Discernment Council
-89- Annex 359
Case 1:03-cv-09848-GBD-SN Document 350 Filed 01/15/13 Page 4 of 4
4. Iranian Ministry oflnformation and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11. Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic of Iran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-90-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN ET AL.
Defendant(s)
USDC SDNY
DOCUMENT
ELECTRONICALLY FllED
DOC #:
DATEFILED: 1/14/2013
CERTIFICATE OF MAILING
Case No.: 03MD1570 (gbtj)
1 hereby certify under the penalties ofpe1jury that on 14th day of"""'Ja=n=u=ar'-'-y _ _ _ _ , 20]2__, I served:
NATIONAL IRANIAN PETROCHEMICAL COMPANY
D One copy of the __________________ _ _______ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
D One copy of the _________________________ _
by ______________________ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
l;XI Two copies of the PLEASE SEE ATTACHED LETTER
by FED EX TRACKING# 8000 4543 6710 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the ____ ___ _________________ _ _ _
by ______ _ ___ ____ _______ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated:New York, New York
1/1 4/2013
-91- Annex 359
Case 1:03-cv-09848-GBD-SN Document 351 Filed 01/15/13 Page 2 of 5
Notice of Default Judgment prepared in accordance with 22 CFR § 93 .2,
Order of Judgement entered by the Honorable George B. Daniels on December 22,2011 (Case
No. I :03-md-0 1570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. 1 :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. 1 :03-cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 2101 (b) .Also enclosed is a money order in the amount of $2,275.00
-92- Annex 359
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Case 1:03-cv-09848-GBD-SN Document 351 Filed 01/15/13 Page 4 of 5
LAW OFFICES
~!J~~
A PROFESSIONAL CORPORATION
87 NORTH BROAD STREET
DOYLESTOWN, PA 18901
215-348-7700 • FAX 215-348-0171
[email protected]
VIA HAND DELIVERY
Ruby J. Krajick, Clerk of Court
U.S. District Court for the
Southern District of New York
Daniel Patrick Moynihan
United States Courthouse
500 Pearl Street
New York, New York 10007
January 14, 2013
THOMAS E. MELLON, JR.
SARA WEBSTER
THOMAS E. MELLON, ill
DEBORAH A. ROMANSKI
OF COUNSEL
Re: Havlislt, et al. v. bin Laden, et al., 03 MDL 1570 (GBD)(FM), l:03-CV-09848
(GBD)(FM)
Dear Ms. Krajick:
We respectfully request service of the final judgment in the above-captioned matter via
the Department of State in accordance with the Foreign Sovereign Immunities Act, 28 U.S.C. §
1608(a)(4). Service of the judgment was attempted upon the Islamic Republic of Iran pursuant
to 1608(a)(3) by the Clerk's office via DHL Express on November 15, 2012. Returns of Service
were transmitted the Court on December 7, 2012, with attached tracking summaries for 16 DHL
packages sent to Iran, stating that Iran's Ministry of Foreign Affairs refused each of the mailings
on November 26, 2012. Thirty days have expired since these packages were refused by Iran.
Iran's Ministry of Foreign Affairs is located at the following address:
Imam Khomeini Street
Tehran, Iran
We provide 16 FedEx envelopes to the Court for transmission to the Department of State.
These 16 envelopes are for service upon the following Defendants:
(1) Islamic Republic oflran via H.E. Dr. Ali Akbar Salehi, Minister of Foreign
Affairs of the Islamic Republic of Iran
(2) Ayatollah Ali Khamenei, Supreme Leader of Iran
(3) Akbar Hashemi Rafsanjani, Chairman, Expediency Discernment Council
-94- Annex 359
Case 1:03-cv-09848-GBD-SN Document 351 Filed 01/15/13 Page 5 of 5
(4) Iranian Ministry of Information and Security
(5) Islamic Revolutionary Guard Corps
( 6) Hezbollah, an unincorporated association
(7) Iranian Ministry of Petroleum
(8) National Iranian Tanker Corporation
(9) National Iranian Oil Corporation
(10) National Iranian Gas Company
(11) Iran Airlines
(12) National Iranian Petrochemical Company
(13) Iranian Ministry of Economic Affairs and Finance
(14) Iranian Ministry of Commerce
(15) Iranian Ministry of Defense and Armed Forces Logistics
(16) The Central Bank of the Islamic Republic oflran
The documents to be served are as follows:
(1) A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2;
(2) Order of Judgment entered by the Honorable George B. Daniels on December 22,
2011 (Case No. 1:03-md-01570-GBD-FM, Document 2516);
(3) Report and Recommendation to the Honorable George B. Daniels issued by U.S.
Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD, Document 314);
(5) Memorandum and Order entered by the Honorable George B. Daniels on October 3,
2012 (Case No. 1 :03-cv-09848-GBD, Document 316); and,
(6) Order and Judgment entered by the Honorable George B. Daniels on October 12,
2012, and docketed on October 16, 2012 (Case No. 1:03-cv-09848-GBD, Document 317).
We provide two copies of each document, in both English and Farsi for each Defendant,
as well as an Affidavit from the translator for each Defendant which comports with the
requirements with NY CVP. LAW§ 2101(b), in accordance with Page 12 of the Court's Foreign
Mailing Instructions. Also enclosed are cashier's checks in the amount of $2,275 made payable
to "U.S. Embassy Bern" for each of the 16 Defendants to be served is included.
Do not hesitate to contact us with any comments or questions.
ly Yours,
Thomas E. Mell
-95- Annex 359
USDCSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOCUMENT
ELECTRON1CALLY FILED
DOC#
DATEFILED: 1/14/2013
HAVLISH, ET AL.
Plaintiff( s) CERTIFICATE OF MAILING
Case No.: 03MDL 1570 (gbcP
-v-
BIN LADEN, ET AL.,
Defendant(s)
I hereby certify under the penalties of perjury that on 14th day of~Ja~n~u~a~ry ____ , 20_u_, I served:
IRANIAN MINISTRY OF ECOMOMIC AFFAIRS AND FINANCE
D One copy of the _________________________ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions of FRCP 4( f)2( c )(ii).
D One copy of the _________________________ _
by _____________________ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
1608(a)(3).
!XI Two copies of the PLEASE SEE ATTACHED LETTER
□I
by FED EX TRACKING# 8000 4543 6709 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
One copy of the __________________________ _
by _____________________ ~ to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(6)(3)(8).
Dated:New York, New York
JANUARY 14, 2013
-96-
RUBY J .. RRAJICK
LERKOFCOU T
\ .
Annex 359
Case 1:03-cv-09848-GBD-SN Document 352 Filed 01/15/13 Page 2 of 4
Notice of Default Judgment prepared in accordance with 22 CFR § 93.2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. l:03-md-01570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. l :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. l:03 -cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 2101 (b) .Also enclosed is a money order in the amount of $2,275.00
-97- Annex 359
Case 1:03-cv-09848-GBD-SN Document 352 Filed 01/15/13 Page 3 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW , 4th floor
Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93 .2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. 1 :03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. 1 :03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW § 2101 (b) Also enclosed is a money order in the
amount of $2,275.00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. §1608(a)(4). I am hereby requesting service upon:
Irans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
1. Islamic Republic of Iran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic of Iran
2. Ayatollah Ali Khamenei
Supreme Leader of Iran
3. Akbar Hashemi Rafsanjani
Chairman, Expendiency Discernment Council
-98- Annex 359
Case 1:03-cv-09848-GBD-SN Document 352 Filed 01/15/13 Page 4 of 4
4. Iranian Ministry of Information and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11. Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic oflran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-99-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVUSH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.
Defendant(s)
USDC SDNY
DOCU1v!ENT
ELECTRON1CALLY FILED
DOC #:
DATEFILED 1/14/2013
CERTIFICATE OF MAILING
Case No. : 03MD1570 (gbcP
I hereby certify under the penalties ofpe1jury that on 14th day of-"-Ja=n.;.:;u=a'-'-ry _____ , 20ll_, I served:
IRANIAN MINISTRY OF COMMERCE
D One copy of the _ ________ _ _ _____ _ _ _ _ _ ____ _
by _____ _____________ ___ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
D One copy of the _ _ _ _ ___ _ ________ _ _ _______ _
by ___ ________ _ ___ ______ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
l 608(a)(3).
l·XI Two copies of the PLEASE SEE ATTACHED LETTER
by FED EX TRACKING# 8000 4543 6617 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Department of State, SA-29, 4th Floor, 2201 C Street NW, Was hington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the _________ ___ ____ ________ _ _ _
by _ _________ _____ _ _____ , to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(b)(3)(B).
Dated:New York, New York
JANUARY 14, 2013
-100-
RUBY J. KRAJICK
CLERK OF C URT ~ · .[.
'~
TY CLERK OF COURT
Annex 359
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· .A
Case 1:03-cv-09848-GBD-SN Document 353 Filed 01/15/13 Page 3 of 5
Notice of Default Judgment prepared in accordance with 22 CFR § 93.2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. I :03-md-01570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. l:03 -cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. 1 :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. 1 :03 -cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW § 2101 (b) .Also enclosed is a money order in the amount of $2,275.00
-102- Annex 359
Case 1:03-cv-09848-GBD-SN Document 353 Filed 01/15/13 Page 4 of 5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW 4th floor ' Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93 .2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. 1 :03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. 1 :03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW § 2101 (b) Als~enclosed is a money order in the
amount of $2,275.00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. §1608(a)(4). I am hereby requesting service upon:
Trans Ministry of Foreign Affairs located at the follow ing address
On behalf of the following defendant's:
1. Islamic Republic of Iran via H.E. Dr. Ali Akbar Salehi •
Minister of Foreign Affairs of the Islamic Repubic oflran
2. Ayatollah Ali Khamenei0
Supreme Leader of Iran
3. Akbar Hashemi Rafsanjan46
Chairman, Expendiency Discernment Council
-103- Annex 359
Case 1:03-cv-09848-GBD-SN Document 353 Filed 01/15/13 Page 5 of 5
4. Iranian Ministry oflnformation and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11. Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic of Iran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-104-
Respectfully yours,
Ruby J. Kraj ick
Clerk of the Court
Annex 359
Case 1:03-cv-09848-GBD-SN Document 354 Filed 01/15/13 Pa e 1 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HAVLISH, ET AL.
Plaintiff(s)
-v-
BIN LADEN, ET AL.,
Defendant(s)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATEFILED: 1/ 14/2013
CERTIFICATE OF MAILING
CaseNo.: 03MDL1570 (gbci)
I hereby certify under the penalties of pe1jury that on 14th day of_Ja_n_u_a~ry _ ____ , 20 .u_, I served:
THE CENTRAL BANK OF ISLAMIC REPUBLIC OF IRAN
D One copy of the ____________ _____________ _
by _____________________ , to the individual of the
foreign state, pursuant to the provisions ofFRCP 4(f)2(c)(ii).
D One copy of the _________________________ _
by ______________________ , to the head of the ministry
of foreign affairs, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. §
1608(a)(3).
!XI Two copies of the PLEASE SEE ATTACHED LETTER
by FED EX TRACKING# 8000 4543 6591 , to the Secretary of State,
Attn: Director of Consular Services, Office of Policy Review and Inter-Agency Liaison
(CA/OCS/PRI), U.S. Depa1iment of State, SA-29, 4th Floor, 2201 C Street NW, Washington, DC
20520, pursuant to the provisions of Foreign Services Immunities Act, 28 U.S.C. § 1608(a)(4).
D One copy of the ____________________ ______ _
by _ ____________________ _, to the head of the agency or
instrumentality of the foreign state, pursuant to the provisions of Foreign Services Immunities
Act, 28 U.S.C. § 1608(6)(3)(8).
Dated:New York, New York
JANUARY 14, 2013
-105-
RUBY J. KRAJICK
CLERK m' COU)lT ~
ll1d., ~--- ~ 11e:J EAN IN EYI ER£SA&___
Y CLERK OF COURT
Annex 359
Case 1:03-cv-09848-GBD-SN Document 354 Filed 01/15/13 Page 2 of 4
Notice of Default Judgment prepared in accordance with 22 CFR § 93.2,
Order of Judgement entered by the Honorable George B. Daniels on December 22, 2011 (Case
No. 1:03-md-01570-GBD-FM Document 2516,
Report and recommendation to the Honorable George B. Daniels issued by Magistrate Judge
Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD, document 314,
Memorandum and Order entered by the Honorable Honorable George B. Daniels on October 3,
2012 (Case No. 1 :03-cv-09848-GBD, Document 316,
Order and Judgment entered by the Honorable George B. Daniels on October 12, 2012 (Case
No. 1 :03-cv-09848-GBD, Document 317.
2 copies of each document, in both English and Farsi for each Defendant, as well as and
Affidavit from the translator for each Defendant which comports with the requirements with NY
CVP. LAW§ 2101 (b) .Also enclosed is a money order in the amount of$2,275.00
-106- Annex 359
Case 1:03-cv-09848-GBD-SN Document 354 Filed 01/15/13 Page 3 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OFFICE OF THE CLERK
500 PEARL STREET
NEW YORK, NEW YORK 10007
RUBY J. KRAJICK
CLERK OF CLERK
Attn: Director of Special Consular Services
United States Department of State
Office of Policy Review And Inter-Agency Liason
(CA/OCS/PRI)
2201 Street NW 4th floor
' Washington, DC 20520
Re: Havlish, et al. v. Bin Laden
03 MDL 1570 (GBD)
Dear Sir:
January 14, 2013
Enclosed please find a copy of a letter received from the Law Firm of Mellon & Webster,
A Notice of Default Judgment prepared in accordance with 22 CFR § 93.2, Order of Judgement
entered by the Honorable George B. Daniels on December 22, 2011 (Case No. 1 :03-md-01570-
GBD-FM, Document 2516, Report and recommendation to the Honorable George B. Daniels
issued by Magistrate Judge Frank Maas on July 30, 2012 (Case No. 1 :03-cv-09848-GBD,
document 314, Memorandum and Order entered by the Honorable Honorable George B. Daniels
on October 3, 2012 (Case No. 1 :03-cv-09848-GBD, Document 316, and Order and Judgment
entered by the Honorable George B. Daniels on October 12, 2012 (Case No. 1 :03-cv-09848-
GBD, Document 317. Additionally, 2 copies of each document, in both English and Farsi for
each Defendant, as well as and Affidavit from the translator for each Defendant which comports
with the requirements with NY CVP. LAW§ 2101 (b) Also enclosed is a money order in the
amount of $2,275.00. Please transmit the documents pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. §1608(a)(4). I am hereby requesting service upon:
Irans Ministry of Foreign Affairs located at the following address
On behalf of the following defendants:
1. Islamic Republic of Iran via H.E. Dr. Ali Akbar Salehi
Minister of Foreign Affairs of the Islamic Repubic oflran
2. Ayatollah Ali Khamenei
Supreme Leader of Iran
3. Akbar Hashemi Rafsanjani
Chairman, Expendiency Discernment Council
-107- Annex 359
Case 1:03-cv-09848-GBD-SN Document 354 Filed 01/15/13 Page 4 of 4
4. Iranian Ministry oflnformation and Security
5. Islamic Revolutionary Guard Corps
6. Hezbollah, an unincorporated association
7. Iranian Ministry of Petroleum
8. National Iranian Tanker Corporation
9. National Iranian Oil Corporation
10. National Iranian Gas Company
11. Iran Airlines
12. National Iranian Petrochemical Company
13. Iranian Ministry of Economic Affairs and Finance
14. Iranian Ministry of Commerce
15. Iranian Ministry of Defense and Armed Forces Logistics
16. The central Bank of the Islamic Republic of Iran
Upon completion, please send me a certified copy of the diplomatic note of transmittal.
Thank you for your assistance. If you have any questions, please contact me.
-108-
Respectfully yours,
Ruby J. Krajick
Clerk of the Court
Annex 359
ANNEX360

No.16-1094
1Jn tbt ~uprtmt ~ourt of tbt llntttb ~tatt~
REPUBLIC OF SUDAN, PETITIONER
v.
RICK HARRISON, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
JENNIFER G. NEWSTEAD
Legal Adviser
Department of State
Washington, D. C. 20520
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
CHAD A. READLER
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
ERICA L. Ross
Assistant to the Solicitor
General
SHARON SWINGLE
LEWIS S. YELIN
CASEN B. Ross
Attorneys
Department of Justice
Washington, D.C. 20530-0001
[email protected]
(202) 514-2217
Annex 360
QUESTION PRESENTED
The Foreign Sovereign Immunities Act of 1976,
28 U.S.C. 1330, 1441(d), 1602 et seq., provides four exclusive,
hierarchical means for a litigant to serve a foreign
state in the courts of the United States. 28 U.S.C.
1608(a)(l)-(4). The third means, in Section 1608(a)(3),
provides for "a copy of the summons and complaint and
a notice of suit * * * to be addressed and dispatched by
the clerk of the court to the head of the ministry of foreign
affairs of the foreign state concerned." 28 U.S.C.
1608(a)(3).
The question presented is whether service under
Section 1608(a)(3) may be accomplished by requesting
the clerk to mail the service package, if the papers are
directed to the minister of foreign affairs, to the embassy
of the foreign state in the United States, or
whether Section 1608(a)(3) requires that process be
mailed to the ministry of foreign affairs in the country
concerned.
(I)
Annex 360
TABLE OF CONTENTS
Page
Interest of the United States ....................................................... 1
Statement ...................................................................................... 1
Discussion ...................................................................................... 7
A. The Foreign Sovereign Immunities Act does not
permit a litigant to serve a foreign state by
requesting that process directed to the foreign
minister be mailed to the state's embassy in the
United States ................................................................... 8
B. Certiorari is warranted, but Kumar presents a
better vehicle for the Court's review ........................... 17
Conclusion ................................................................................... 22
TABLE OF AUTHORITIES
Cases:
Abbott v. Abbott, 560 U.S. 1 (2010) ....................................... 12
Alberti v. Empresa Nicaraguense De La Carne,
705 F .2d 250 (7th Cir. 1983) ......................................... 16, 19
Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428 (1989) .................................................... 2
Autotech Techs. LP v. Integral Research & Dev.
Corp., 499 F.3d 737 (7th Cir. 2007), cert. denied,
552 U.S. 1231 (2008) ...................................................... 13, 19
Barot v. Embassy of The Republic of Zam.,
785 F.3d 26 (D.C. Cir. 2015) ............................................... 18
Boos v. Barry, 485 U.S. 312 (1988) ...................................... 11
Cook v. United States, 288 U.S. 102 (1933) ......................... 11
El-Hadadv. United Arab Emirates, 216 F.3d 29
(D.C. Cir. 2000) ................................................................... 15
Gates v. Syrian Arab Republic, 646 F.3d 1
(D.C. Cir.), cert. denied, 565 U.S. 945 (2011) ................... 18
(III)
Annex 360
IV
Cases-Continued:
Gray v. Permanent Mission of the People's Republic
of the Congo to the United Nations,
443 F. Supp. 816 (S.D.N.Y.), aff'd, 580 F.3d 1044
Page
(2d Cir. 1978) ....................................................................... 15
Hellenic Lines, Ltd. v. Moore, 345 F.2d 978
(D.C. Cir. 1965) ................................................................... 12
Kumarv. Republic of Sudan, 880 F.3d 144 (4th Cir.
2018), petition for cert. pending, No. 17-1269
(filed Mar. 9, 2018) ..................................................... passim
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ........... 20
Magness v. Russian Fed'n, 247 F.3d 609
(5th Cir.), cert. denied, 534 U.S. 892 (2001) ................. 2, 10
Medellin v. Texas, 552 U.S. 491 (2008) ............................... 13
Owens v. Republic of Sudan, 864 F .3d 751
(D.C. Cir. 2017), petitions for cert. pending,
No. 17-1236 and No. 17-1268 (filed Mar. 2, 2018) ...... 20, 21
Persingerv. Islamic Republic of Iran, 729 F.2d 835
(D.C. Cir.), cert. denied, 469 U.S. 881 (1984) ................... 14
Peterson v. Islamic Republic Of Iran, 627 F.3d 1117
(9th Cir. 2010) ...................................................................... 10
Russello v. United States, 464 U.S. 16 (1983) ..................... 10
767 Third Ave. Assocs. v. Permanent Mission of The
Republic of Zaire to the United Nations, 988 F .2d
295 (2d Cir.), cert. denied, 510 U.S. 819 (1993) ................ 11
Transaero, Inc. v. La Fuerza Aerea Boliviana,
30 F.3d 148 (D.C. Cir. 1994), cert. denied,
513 U.S. 1150 (1995) ................................................ 10, 11, 18
Walker v. Turner, 22 U.S. (9 Wheat.) 541 (1824) ............... 20
Water Splash, Inc. v. Menon, 137 S. Ct. 1504 (2017) ......... 13
Treaty, statutes, regulation, and rules:
Vienna Convention on Diplomatic Relations,
done Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 ........ 6
Annex 360
V
Treaty, statutes, regulation, and rules-Continued: Page
art. 22, sec. 1, 23 U.S.T. 3237,
500 U.N.T.S.106 ................................. 11, 12, 13, 15, 16
Foreign Sovereign Immunities Act of 1976,
28 U.S.C. 1330, 1441(d), 1602 et seq . ................................... 1
28 U.S.C. 1330(a) ............................................................... 2
28 U.S.C. 1330(b) ............................................................... 2
28 U.S.C. 1603(a) ............................................................. 15
28 u.s.c. 1604 .................................................................... 2
28 U.S.C. 1605A ................................................................. 3
28 U.S.C. 1605A(a) ............................................................ 4
28 u.s.c. 1606 .................................................................... 4
28 U.S.C. 1608(a) ................................................. 2, 8, 9, 10
28 U.S.C. 1608(a)(l) ........................................................... 2
28 U.S.C. 1608(a)(l)-(2) ..................................................... 3
28 U.S.C. 1608(a)(2) ........................................................... 2
28 U.S.C. 1608(a)(3) ................................................ passim
28 U.S.C. 1608(a)(4) ..................................................... 3, 10
28 U.S.C. 1608(b) ......................................................... 9, 11
28 U.S.C. 1608(b)(2) .......................................................... 9
28 U.S.C. 1608(b)(3) ........................................................ 11
28 U.S.C. 1608(d) ............................................................... 3
28 U.S.C. 1608(e) ............................................................... 4
28 U.S.C. 1610(c) ............................................................... 4
National Defense Authorization Act for Fiscal Year
2008, Pub. L. No.110-181, Div. A, Tit. X,
§ 1083(a)(l), 122 Stat. 338 .................................................. 20
31 C.F .R. Pt. 538 ...................................................................... 4
Fed. R. Civ. P.:
Rule 4(j)(l) ......................................................................... 2
Rule 60(b) ..................................................................... 5, 20
Rule 69(a) ........................................................................... 4
Annex 360
VI
Miscellaneous: Page
James Crawford, Brownlie's Principles of Public
International Law (8th ed. 2012) ...................................... 13
Ludwik Dembinski, The Modern Law of Diplomacy
(1988) .................................................................................... 13
Eileen Denza, Diplomatic Law (4th ed. 2016) ............. 11, 13
H.R. 11315, Sec. 4(a) [§ 1608], 94th Cong.,
1st Sess. (1975) .................................................................... 16
H.R. Rep. No.1487, 94th Cong., 2d Sess. (1976) .......... 16, 17
Letter from Leonard C. Meeker, Acting Legal
Adviser, U.S. Dep't of State, to John W. Douglas,
Assistant Att'y Gen., U.S. Dep't of Justice
(Aug. 10, 1964) ..................................................................... 12
1 Restatement (Third) of the Foreign Relations Law
of the United States (1987) ................................................ 11
S. 566, Sec. 1(1) [§ 1608], 93d Cong., 1st Sess. (1973) ........ 16
Service of Legal Process by Mail on Foreign
Governments in the U.S., 71 Dep't St. Bull.,
No.1840 (Sept. 30, 1974) .................................................... 16
U.N. Int'l L. Comm'n, Report of the Commission to
the General Assembly, Doc. A/3623, 2 Y.B. Int'l L.
Comm'n 131 (1957) .............................................................. 14
2 U.S. Dep't of State, Foreign Affairs Manual (2013) ...... 14
Annex 360
3Jn tbt ~uprtmt ~ourt of tbt Wnittb ~tate~
No.16-1094
REPUBLIC OF SUDAN, PETITIONER
v.
RICK HARRISON, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
INTEREST OF THE UNITED STATES
This brief is submitted in response to the Court's order
inviting the Solicitor General to express the views
of the United States. In the view of the United States,
the petition for a writ of certiorari should be held pending
the Court's disposition of the petition for a writ of
certiorari in Kumarv. Republic of Sudan, No. 17-1269
(filed Mar. 9, 2018), and then be disposed of as appropriate.
In the alternative, if the Court grants the petition
in Kumar, the Court may wish to grant certiorari
in this case and consolidate it with Kumar for consideration
of the merits.
STATEMENT
1. The Foreign Sovereign Immunities Act of 1976
(FSIA), 28 U.S.C. 1330, 1441(d), 1602 et seq., provides
the sole basis for civil suits against foreign states and
their agencies or instrumentalities in United States
(1)
Annex 360
2
courts. See, e.g., Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 434-435 & n.3 (1989). The
FSIA establishes that "a foreign state shall be immune
from the jurisdiction of the courts of the United States
and of the States except as provided" by the Act.
28 U.S.C. 1604. If a suit comes within a statutory exception
to foreign sovereign immunity, the FSIA provides
for subject-matter jurisdiction in district courts,
28 U.S.C. 1330(a), as well as for personal jurisdiction
over the foreign state "where service has been made under
section 1608." 28 U.S.C. 1330(b).
Section 1608(a) provides the exclusive means for
serving "a foreign state or political subdivision of a foreign
state" in civil litigation. 28 U.S.C. 1608(a); see Fed.
R. Civ. P. 4(j)(l). The provision specifies four exclusive
methods of service, in hierarchical order. See, e.g., Pet.
App. 8a; Magness v. Russian Fed'n, 247 F.3d 609, 613
(5th Cir.), cert. denied, 534 U.S. 892 (2001). First, service
must be effected on a foreign state "in accordance
with any special arrangement for service between the
plaintiff and the foreign state or political subdivision."
28 U.S.C.1608(a)(l). Second, ifno such special arrangement
exists, service must be provided "in accordance
with an applicable international convention on service
of judicial documents." 28 U.S.C. 1608(a)(2). Third, if
no such international convention applies, service shall
be made
by sending a copy of the summons and complaint and
a notice of suit, together with a translation of each
into the official language of the foreign state, by any
form of mail requiring a signed receipt, to be addressed
and dispatched by the clerk of the court to
the head of the ministry of foreign affairs of the foreign
state concerned.
Annex 360
3
28 U.S.C. 1608(a)(3). Fourth, if service cannot be made
within thirty days under Section 1608(a)(3), the litigant
must deliver process to the State Department for service
"through diplomatic channels to the foreign state."
28 U.S.C. 1608(a)(4).
2. On October 12, 2000, terrorists bombed the USS
Cole in the Port of Aden, Yemen. Pet. App. 24a. Seventeen
U.S. service members were killed and forty-two
others were injured. Ibid. In 2010, the individual respondents,
who are sailors and spouses of sailors injured
in the bombing, sued petitioner, the Republic of
Sudan, in the District Court for the District of Columbia.
Pet. 8. Relying on the cause of action set forth in
28 U.S.C. 1605A, which is available in actions against
designated state sponsors of terrorism such as the Republic
of Sudan, respondents alleged that petitioner
provided material support to the al Qaeda operatives
who carried out the bombing. Pet. 8; Pet. App. 3a.
Because service under 28 U.S.C. 1608(a)(l)-(2) was
not possible, respondents attempted to serve petitioner
under Section 1608(a)(3). Pet. App. 4a, 9a. They requested
that the Clerk of Court mail a copy of the summons
and complaint via registered mail, return receipt
requested, to:
Republic of Sudan
Deng Alor Koul
Minister of Foreign Affairs
Embassy of the Republic of Sudan
2210 Massachusetts Avenue NW
Washington, DC 20008
Id. at 132a.
Petitioner did not respond within sixty days, see
28 U.S.C. 1608(d), and following a hearing, the district
court entered a default judgment against petitioner.
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4
Pet. App. 22a-23a. The court determined that service
on petitioner was proper, id. at 27a-28a, and that it had
jurisdiction under 28 U.S.C. 1605A(a). Pet. App. 29a-
64a. The court then concluded that respondents had established
petitioner's liability under 28 U.S.C. 1605A
and 1606, and awarded respondents $314. 7 million in
damages. Pet. App. 22a-23a, 64a-75a. Respondents attempted
to serve the default judgment on petitioner by
the same delivery method-through the clerk's mailing
of the papers to the Embassy of the Republic of Sudan
in Washington, D.C. Id. at 5a; see 28 U.S.C.1608(e) (requiring
service of any default judgment).
3. Respondents registered the default judgment in
the District Court for the Southern District of New
York. Pet. App. 5a. Both that court and the District
Court for the District of Columbia determined that respondents
had effected service of the default judgment
and that respondents could seek attachment and execution
of the judgment. Id. at 6a; see 28 U.S.C. 1610(c).
Respondents filed three petitions in the Southern
District of New York seeking turnover of assets of
petitioner's agencies and instrumentalities held by
respondent banks Mashreqbank PSC, BNP Paribas,
and Credit Agricole Corporate and Investment Bankassets
which had been frozen pursuant to the Sudanese
Sanctions Regulations, 31 C.F .R. Part 538. Pet. App.
6a; see Fed. R. Civ. P. 69(a). Respondents again
attempted to serve the relevant papers on Sudan by
mailing them to the Embassy of the Republic of Sudan
in Washington, D.C., in a package directed to the
Minister of Foreign Affairs. Pet. App. 6a. The district
court granted respondents' petitions and issued three
turnover orders against the banks in partial satisfaction
of the default judgment. Id. at 76a-91a.
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5
Petitioner then entered an appearance in the Southern
District of New York and timely appealed the issuance
of the turnover orders. Pet. App. 6a-7a. *
4. The court of appeals affirmed. Pet. App. la-21a.
It concluded that respondents had properly effected
service under Section 1608(a)(3) in the original action.
Id. at 8a-15a. The court held that service under Section
1608(a)(3), which requires that process be "addressed
and dispatched * * * to the head of the ministry of foreign
affairs of the foreign state concerned," 28 U.S.C.
1608(a)(3), could be accomplished by providing for delivery
to the "minister of foreign affairs via an embassy
address." Pet. App. lla. According to the court, Section
1608(a)(3) did not require that service be made on
the Minister of Foreign Affairs of Sudan at the Ministry
of Foreign Affairs in Khartoum, Sudan, because the
statute does not expressly state that process must "be
mailed to a location in the foreign state," and respondents'
method of service "could reasonably be expected
to result in delivery to the intended person." Ibid.
The court of appeals recognized that the FSIA's legislative
history "seemed to contemplate-and rejectservice
on an embassy," in order to "prevent any inconsistency
with the Vienna Convention on Diplomatic Relations,"
which provides that "'[t]he premises of the
[diplomatic] mission shall be inviolable.'" Pet. App.13a-
14a (citation omitted; brackets in original). But the
court distinguished "'service on an embassy'" from
"service on a minister of foreign affairs via or care of an
• While that appeal was pending, petitioner entered an appearance
in the litigation in the District Court for the District of Columbia
and moved to vacate the default judgment under Federal Rule
of Civil Procedure 60(b). The district court has not ruled on that
motion. Pet. App. 96a n.1.
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6
embassy," which the court held was permissible and did
not implicate "principles of mission inviolability and
diplomatic immunity." Ibid. (brackets and citation
omitted). Having concluded that respondents' initial
service was proper, the court determined that service of
the default judgment and all post-judgment motions
was proper as well. Id. at 15a.
5. Following additional briefing and argument in
which the United States participated, see Pet. App.
135a-147a, the court of appeals denied petitioner's motion
for panel rehearing. Id. at 97a. Although "acknowledg[
ing]" that the issue "presents a close call," ibid.,
the court adhered to its prior conclusion that Section
1608(a)(3) permitted respondents to serve petitioner by
a "mailing addressed to the minister of foreign affairs
via Sudan's embassy in Washington, D.C.," id. at 98a,
because the statute "does not specify that the mailing
be sent to the head of the ministry of foreign affairs in
the foreign country," id. at 99a. The court reiterated its
view that respondents' method of service "could reasonably
be expected to result in delivery to the intended
person." Id. at 98a. And it again stated that although
Section 1608(a)(3) does not permit service "'on"' an embassy,
"[t]he legislative history does not address * * *
whether Congress intended to permit the mailing of
service to a foreign minister via an embassy." Id. at
102a (citation omitted). For that reason, the court rejected,
"with some reluctance," the United States' argument
that the court's interpretation of Section
1608(a)(3) contravenes the Vienna Convention on Diplomatic
Relations (VCDR), done Apr. 18, 1961, 23 U.S.T.
3227, 500 U.N.T.S. 95. Pet. App. 109a; see id. at 105a-
109a. In the court's view, "service on an embassy or
consular official would be improper" under the VCDR,
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7
but service with papers "addressed to the Minister of
Foreign Affairs via the embassy" conforms to the Convention's
requirements. Id. at 106a. And while the
United States had noted that it "consistently rejects attempted
service via direct delivery to a U.S. embassy
abroad" because it believes such service to be inconsistent
with international law, the court stated that its
rule would "not preclude the United States (or any
other country) from enforcing a policy of refusing to accept
service via its embassies." Ibid. (citation omitted).
Finally, the court opined that "the Sudanese Embassy's
acceptance of the service package surely constituted
'consent"' for purposes of the VCDR. Id. at 107.
The court of appeals denied rehearing en bane. Pet.
App. 114a-115a.
DISCUSSION
The United States deeply sympathizes with the extraordinary
injuries suffered by respondents, and it
condemns in the strongest possible terms the terrorist
acts that caused those injuries. The United States also
has a strong interest in opposing and deterring state
sponsored terrorism and supporting appropriate recoveries
for U.S. victims.
Nevertheless, as the United States has long maintained,
the court of appeals erred by holding that the
FSIA, 28 U.S.C. 1608(a)(3), permits service on a foreign
state "via" or in "care of" the foreign state's diplomatic
mission in the United States. Pet. App. 13a. That decision
contravenes the most natural reading of the statutory
text, treaty obligations, and the FSIA's legislative
history, and it threatens harm to the United States' foreign
relations and its treatment in courts abroad. The
decision below also squarely conflicts with a recent de-
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8
cision of the Fourth Circuit, Kumar v. Republic of Sudan,
880 F.3d 144, 158 (2018), petition for cert. pending,
No. 17-1269 (filed Mar. 9, 2018), and is in significant tension
with decisions of the Seventh and D.C. Circuits. As
the parties in both this case and Kumar now recognize,
the question presented warrants this Court's review.
See Resps. Supp. Br. 1-2; Resp. to Pet. at 1-2, Kumar,
supra (No. 17-1269).
This case, however, has potential vehicle problems
that could complicate the Court's consideration. Because
Kumar appears to present a more suitable vehicle
for addressing the question presented, the petition for
a writ of certiorari in this case should be held pending
the Court's consideration of the petition in Kumar, and
then disposed of as appropriate. In the alternative, this
Court may wish to grant certiorari in both cases and
consolidate them for review.
A. The Foreign Sovereign Immunities Act Does Not Permit
A Litigant To Serve A Foreign State By Requesting
That Process Directed To The Foreign Minister Be
Mailed To The State's Embassy In The United States
The FSIA's text, the United States' treaty obligations,
and the statute's legislative history all demonstrate
that Section 1608(a)(3) does not permit a litigant
to serve a foreign state by requesting that process directed
to the state's minister of foreign affairs be mailed
to the state's embassy in the United States.
1. a. Section 1608(a) provides four exclusive, hierarchical
means for serving "a foreign state or political
subdivision of a foreign state" in civil litigation.
28 U.S.C. 1608(a). The provision at issue here, Section
1608(a)(3), permits a litigant to serve a foreign state "by
any form of mail requiring a signed receipt, to be addressed
and dispatched by the clerk of the court to the
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9
head of the ministry of foreign affairs of the foreign
state concerned." 28 U.S.C. 1608(a)(3).
Although Section 1608(a)(3) does not expressly identify
the location of service, the most natural understanding
of the text is that it requires delivery to the
ministry of foreign affairs at the foreign state's seat of
government. The statute mandates that service be "addressed
and dispatched * * * to the head of the ministry
of foreign affairs." 28 U.S.C. 1608(a)(3). It is logical to
conclude that delivery should be made to that official's
principal place of business, i.e., the ministry of foreign
affairs in the foreign state's seat of government. See
Kumar, 880 F.3d at 155 (Section 1608(a)(3) "reinforce[
s] that the location must be related to the intended
recipient."). A state's foreign minister does not
work in the state's embassies throughout the world, and
nothing in the statute suggests that Congress expected
foreign ministers to be served at locations removed
from their principal place of performance of their official
duties. See ibid.
If Congress had intended to permit service "via" a
foreign embassy in the United States, e.g., Pet. App.
101a, it would have provided that service be addressed
to the foreign state's ambassador, or to an agent, rather
than "addressed and dispatched * * * to the head of the
ministry of foreign affairs." 28 U.S.C. 1608(a)(3). Indeed,
the neighboring provision, Section 1608(b), which
governs service on a foreign state agency or instrumentality,
expressly provides for service by "delivery * * *
to an officer, a managing or general agent, or to any
other [authorized] agent." 28 U.S.C. 1608(b)(2). Congress's
failure to include similar language in Section
1608(a) underscores that it did not envision that service
Annex 360
10
would be sent to a foreign state's embassy, with embassy
personnel effectively functioning as agents for
forwarding service to the head of the ministry of foreign
affairs. See Russello v. United States, 464 U.S. 16, 23
(1983) ("Where Congress includes particular language
in one section of a statute but omits it in another section
of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion
or exclusion.") (brackets and citation omitted).
b. The court of appeals drew different inferences
from the statutory text. It noted that in contrast to Section
1608(a)(3), Section 1608(a)(4) specifies that papers
may be mailed "to the Secretary of State in Washington,
District of Columbia." Pet. App. 99a. As the
Fourth Circuit explained, however, reliance on Section
1608(a)(4) is unpersuasive: Unlike Section 1608(a)(3),
Section 1608(a)(4) "directs attention to one known location
for one country-the United States-and so can be
easily identified." Kumar, 880 F.3d at 159.
The court of appeals also was of the view that "[a]
mailing addressed to the minister of foreign affairs via
Sudan's embassy in Washington, D.C. * * * could reasonably
be expected to result in delivery to the intended
person." Pet. App. 98a. But Section 1608(a)'s exclusive
methods of service require "strict compliance." Kumar,
880 F.3d at 154; Magness v. Russian Fed'n, 247 F.3d
609, 615 (5th Cir.), cert. denied, 534 U.S. 892 (2001);
Transaero, Inc. v. La FuerzaAerea Boliviana, 30 F.3d
148, 154 (D.C. Cir. 1994), cert. denied, 513 U.S. 1150
(1995). But see Peterson v. Islamic Republic Of Iran,
627 F.3d 1117, 1129 (9th Cir. 2010) (upholding defective
service based on substantial compliance with Section
1608(a)). By contrast, where Congress envisioned an
actual-notice standard, it said so expressly: Section
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11
1608(b) contains a "catchall * * * expressly allowing
service by any method 'reasonably calculated to give actual
notice."' Kumar, 880 F.3d at 154 (quoting 28 U.S.C.
1608(b)(3)); see also, e.g., Transaero, 30 F.3d at 154.
2. The United States' treaty obligations further
demonstrate that Section 1608(a)(3) does not permit a
litigant to serve a foreign state by having process
mailed to the foreign state's embassy in the United
States.
a. The VCDR, which the United States signed in
1961 and ratified in 1972, and which "codified longstanding
principles of customary international law with respect
to diplomatic relations," 767 Third Ave. Assocs. v.
Permanent Mission of The Republic of Zaire to the
United Nations, 988 F.2d 295, 300 (2d Cir.), cert. denied,
510 U.S. 819 (1993), establishes certain obligations
of the United States with respect to foreign diplomats
and diplomatic premises in this country. See Boos v.
Barry, 485 U.S. 312, 322 (1988). Article 22, Section 1 of
the VCDR provides that "[t]he premises of" a foreign
state's "mission shall be inviolable," and "[t]he agents
of the receiving State may not enter them, except with
the consent of the head of the mission." VCDR, art. 22,
sec. 1, 23 U.S.T. 3237, 500 U.N.T.S. 106. Mission inviolability
means, among other things, that "the receiving
State * * * is under a duty to abstain from exercising
any sovereign rights, in particular law enforcement
rights, in respect of inviolable premises." Eileen Denza,
Diplomatic Law 110 (4th ed. 2016) (Denza).
Section 1608(a)(3) should be interpreted in a manner
that is consistent with the United States' treaty obligations.
See, e.g., Cook v. United States, 288 U.S. 102, 120
(1933); 1 Restatement (Third) of the Foreign Relations
Law of the United States § 114 (1987) ("Where fairly
Annex 360
12
possible, a United States statute is to be construed so
as not to conflict * * * with an international agreement
of the United States."). Construing Section 1608(a)(3)
to require that process be mailed to the ministry of foreign
affairs in the foreign state ensures that the inviolability
of foreign embassies within the United States is
maintained.
By contrast, the court of appeals' determination that
a litigant may serve a foreign state by directing process
to be mailed to the foreign state's embassy in the United
States is inconsistent with the inviolability of mission
premises recognized by the VCDR. The Executive
Branch has long interpreted Article 22 and the customary
international law it codifies to preclude a litigant
from serving a foreign state with process by mail or personal
delivery to the state's embassy. See Hellenic
Lines, Ltd. v. Moore, 345 F.2d 978, 982 (D.C. Cir. 1965)
(Washington, J., concurring) ("The establishment by
one country of a diplomatic mission in the territory of
another does not * * * empower that mission to act as
agent of the sending state for the purpose of accepting
service of process.") (quoting Letter from Leonard C.
Meeker, Acting Legal Adviser, U.S. Dep't of State, to
John W. Douglas, Assistant Att'y Gen., U.S. Dep't of
Justice (Aug. 10, 1964)). This interpretation of the
VCDR "is entitled to great weight," Abbott v. Abbott,
560 U.S. 1, 15 (2010) (citation omitted), in light of "the
Constitution's grant to the Executive Branch * * * of
broad oversight over foreign affairs," Kumar, 880 F.3d
at 157. See id. at 158 (the Executive Branch's "longstanding
policy and interpretation" of Article 22 is "authoritative,
reasoned, and entitled to great weight").
The Executive Branch's interpretation also reflects
the prevailing understanding of Article 22. As a leading
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13
treatise explains, it is "generally accepted" that "service
by post on mission premises is prohibited." Denza 124.
Other treatises are in accord. See James Crawford,
Brownlie's Principles of Public International Law 403
(8th ed. 2012) ("It follows from Article 22 that writs cannot
be served, even by post, within the premises of a
mission but only through the Ministry for Foreign Affairs.");
Ludwik Dembinski, The Modern Law of Diplomacy
193 (1988) (Article 22 "protects the mission from
receiving by messenger or by mail any notification from
the judicial or other authorities of the receiving State.").
Other countries also share this understanding. See,
e.g., Pet. Supp. Br. App. 2a (Note Verbale from the Republic
of Austria to the State Department); Kingdom of
Saudi Arabia Amicus Br. 12-14. And domestically, the
Fourth and Seventh Circuits have recognized that attempting
to serve a party in a foreign country "through
an embassy [in the United States] is expressly banned
* * * by [the VCDR]." Autotech Techs. LP v. Integral
Research & Dev. Corp., 499 F.3d 737, 748 (7th Cir.
2007), cert. denied, 552 U.S. 1231 (2008); see Kumar,
880 F .3d at 157.
The Convention's drafting history is to the same effect.
See Water Splash, Inc. v. Menon, 137 S. Ct. 1504,
1511 (2017) (considering treaty drafting history); Medellin
v. Texas, 552 U.S. 491, 507-508 (2008) (same). In
a report accompanying a preliminary draft of the
VCDR, the United Nations International Law Commission
explained:
[N]o writ shall be served within the premises of the
mission, nor shall any summons to appear before a
court be served in the premises by a process server.
Even if process servers do not enter the premises
but carry out their duty at the door, such an act
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14
would constitute an infringement of the respect due
to the mission. All judicial notices of this nature
must be delivered through the Ministry for Foreign
Affairs of the receiving State.
U.N. Int'l L. Comm'n, Report of the Commission to the
General Assembly, Doc. A/3623, 2 Y.B. Int'l L. Comm'n
131, 137 (1957).
b. In light of this prevailing understanding, this Office
is informed that the United States routinely refuses
to recognize the propriety of service through mail or
personal delivery by a private party or foreign court to
a United States embassy. When a foreign litigant or
court officer purports to serve the United States
through an embassy, the embassy sends a diplomatic
note to the foreign ministry in the forum state, explaining
that the United States does not consider itself to
have been served consistent with international law and
thus will not appear in the litigation or honor any judgment
that may be entered against it. See 2 U.S. Dep't
of State, Foreign Affairs Manual§ 284.3(c) (2013). The
United States has a strong interest in ensuring that its
courts afford foreign states the same treatment to
which the United States believes it is entitled under customary
international law and the VCDR. See, e.g., Kumar,
880 F.3d at 158 (recognizing importance of reciprocity
interest); Persinger v. Islamic Republic of Iran,
729 F.2d 835, 841 (D.C. Cir.), cert. denied, 469 U.S. 881
(1984) (United States' interest in reciprocal treatment
"throw[s] light on congressional intent").
c. Although the court of appeals acknowledged that
the Executive Branch's treaty interpretation "is to be
afforded 'great weight,' it summarily rejected [the government's]
position." Kumar, 880 F.3d at 159 n.11 (ci-
Annex 360
15
tation omitted); see Pet. App. 109a. The court acknowledged
that "service on an embassy or consular official
would be improper" under the VCDR, Pet. App. 106a,
but it believed "[t]here is a significant difference between
serving process on an embassy, and mailing papers
to a country's foreign ministry via the embassy,"
id. at 101a; see id. at 14a. But as the Fourth Circuit
stated, that is an "artificial" and "non-textual" distinction.
Kumar, 880 F.3d at 159 n.11; see id. at 157 (distinction
arises from "meaningless semantic[s]"). In either
case, the suit is against the foreign state. See
28 U.S.C. 1603(a); El-Hadad v. United Arab Emirates,
216 F.3d 29, 31-32 (D.C. Cir. 2000) (treating suit against
foreign embassy as suit against the state); Gray v. Permanent
Mission of the People's Republic of the Congo
to the United Nations, 443 F. Supp. 816,820 (S.D.N.Y.)
(holding that permanent mission of foreign country to
the United Nations is a "foreign state" under the FSIA),
aff'd, 580 F.3d 1044 (2d Cir. 1978). And in either case,
mailing service to the embassy treats it as the state's
"de facto agent for service of process," in violation of the
VCDR's principle of mission inviolability. Kumar, 880
F.3d at 159 n.11.
The court below also suggested that service "via" petitioner's
embassy complied with the VCDR because the
embassy consented to service by "accept[ing]" the papers.
Pet. App. 107a. But the VCDR provides that
"agents of [a] receiving State may not enter [a mission],
except with the consent of the head of the mission." Art.
22, sec. 1, 23 U.S.T. 3237, 500 U.N.T.S. 106 (emphasis
added). "Simple acceptance of the certified mailing
from the clerk of court [by an embassy employee] does
not demonstrate a waiver [of the VCDR]." Kumar, 880
F .3d at 157 n.9. And no record evidence suggests that
Annex 360
16
petitioner's Ambassador to the United States-the
head of the mission-was aware of, much less consented
to receive, respondents' service of process.
3. The FSIA's legislative history confirms that Congress
intended the statute to bar service by mail to a
foreign state's embassy.
a. An early draft of the FSIA permitted service on a
foreign state by "registered or certified mail * * * to
the ambassador or chief of mission of the foreign state"
in the United States. S. 566, Sec. 1(1) [§ 1608], 93d
Cong., 1st Sess. (1973). The State Department recommended
removing that method based on its view that it
would violate Article 22 of the VCDR. See H.R. Rep.
No. 1487, 94th Cong., 2d Sess. 26 (1976) (House Report);
Service of Legal Process by Mail on Foreign Governments
in the U.S., 71 Dep't St. Bull., No. 1840, at 458,
458-459 (Sept. 30, 1974). A subsequent version of the
bill eliminated that method of service. H.R. 11315, Sec.
4(a) [§ 1608], 94th Cong., 1st Sess. (1975).
In addition, the House Report accompanying the bill
that became the FSIA explained that some litigants had
previously attempted to serve foreign states by "mailing
of a copy of the summons and complaint to a diplomatic
mission of the foreign state." House Report 26.
The Report described this practice as having "questionable
validity" and stated that "Section 1608 precludes
this method so as to avoid questions of inconsistency
with section 1 of article 22 of the [VCDR]." Ibid. Thus,
"[s]ervice on an embassy by mail would be precluded
under th[e] bill." Ibid.; see Kumar, 880 F.3d at 156 (relying
on this legislative history); Alberti v. Empresa
Nicaraguense De La Carne, 705 F.2d 250,253 (7th Cir.
1983) (same).
Annex 360
17
b. The court of appeals disregarded this legislative
history because the House Report "fail[ed] to" distinguish
"between '[s]ervice on an embassy by mail,' and
service on a minister [ of] foreign affairs via or care of
an embassy." Pet. App. 102a (citation and emphases
omitted). But as discussed above, see p. 15, supra, that
distinction is merely "semantic." Kumar, 880 F.3d at
157.
In any event, the court of appeals misread the
legislative history. The House Report disapproved of
"attempting to commence litigation against a foreign
state" by "mailing * * * a copy of the summons and
complaint to a diplomatic mission of the foreign state."
House Report 26 (emphasis added). Congress thus
sought to prevent parties from completing service by
mailing process papers to an embassy, regardless of
whether the papers are directed to the ambassadorwhich
the court of appeals agreed would violate the
statute and the VCDR, see Pet. App. 106a-or to the
foreign minister, as occurred here.
B. Certiorari Is Warranted, But Kumar Presents A Better
Vehicle For The Court's Review
1. As all parties now recognize, the question presented
warrants this Court's review.
a. The decision below squarely conflicts with the
Fourth Circuit's decision in Kumar, supra. In both
cases, a group of victims of the USS Cole bombing allege
that petitioner provided material support for the attack.
And in both cases, the victims attempted to effect service
by requesting that the clerk send documents,
directed to the Minister of Foreign Affairs, to the Embassy
of the Republic of Sudan in Washington, D.C.
The Second Circuit upheld that method of service, while
the Fourth Circuit determined that it fails to satisfy
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18
28 U.S.C. 1608(a)(3). See Kumar, 880 F.3d at 159 (acknowledging
split). Such disparate results on similar
facts warrant this Court's review. See Resp. to Pet. at
4, Kumar, supra (No. 17-1269).
Moreover, the court of appeals' decision is in significant
tension with decisions of the Seventh and D.C. Circuits.
Although those courts have not directly addressed
the method of service respondents attempted
here, they have considered closely related questions.
In Barot v. Embassy of The Republic of Zambia,
785 F.3d 26 (2015), the D.C. Circuit recounted that the
plaintiff's first effort to serve her former employer, the
Zambian Embassy, had failed to comply with the FSIA
because service was "attempted * * * at the Embassy
in Washington, D.C., rather than at the Ministry of Foreign
Affairs in Lusaka, Zambia, as the Act required."
Id. at 28. After describing the plaintiff's further failed
attempts at service, the court determined that she
should be "afford[ed] * * * the opportunity to effect
service pursuant to 28 U.S.C. 1608(a)(3)," which "requires
serving a summons, complaint, and notice of
suit, * * * that are 'dispatched by the clerk of the
court,' and sent to the 'head of the ministry of foreign
affairs' in Lusaka, Zambia, whether identified by name
or title, and not to any other official or agency."
785 F.3d at 29-30 (citation omitted); see Gates v. Syrian
Arab Republic, 646 F.3d 1, 4 (D.C. Cir.) (litigant complied
with Section 1608(a)(3) by addressing service to
the Syrian Ministry of Foreign Affairs), cert. denied,
565 U.S. 945 (2011); Transaero, 30 F.3d at 154 (Section
1608(a)(3) "mandates service of the Ministry of Foreign
Affairs.").
The Seventh Circuit has similarly rejected the idea
that service through an embassy comports with the
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19
FSIA. In considering attempted service of a motion on
a foreign instrumentality, the court explained that "service
through an embassy is expressly banned both by an
international treaty to which the United States is a
party and by U.S. statutory law." Autotech, 499 F.3d at
748; see Alberti, 705 F.2d at 253 (service on the ambassador
is "simply inadequate" under Section 1608(a)(3)).
b. The decision below also threatens harm to the
United States' foreign relations. The United States has
substantial interests in ensuring that foreign states are
served properly before they are required to appear in
U.S. courts, and in preserving the inviolability of diplomatic
missions under the VCDR. Moreover, the United
States routinely objects to attempts by foreign courts
and litigants to serve the United States by delivery to
U.S. embassies, and thus has a significant reciprocity
interest in the treatment of U.S. missions abroad. At
the same time, if this Court grants certiorari and holds
that respondents' method of service was improper, respondents
may be able to correct the deficient service
by requesting that the clerk of court send "a copy of the
summons and complaint and a notice of suit * * * to the
head of the ministry of foreign affairs" of the Republic
of Sudan in Khartoum, Sudan. 28 U.S.C. 1608(a)(3); cf.
Kumar, 880 F.3d at 160 (remanding to the district court
"with instructions to allow Kumar to perfect service of
process in a manner consistent with this opinion").
2. Although the question presented warrants this
Court's review, this case could prove to be a problematic
vehicle for resolving it.
Petitioner first challenged respondents' method of
service on appeal from the entry of turnover orders filed
in the District Court for the Southern District of New
York to execute on the default judgment issued by the
Annex 360
20
District Court for the District of Columbia. Petitioner
has filed a motion to vacate the underlying default judgment,
which remains pending. See 10-cv-1689 D. Ct.
Doc. 55 (June 14, 2015); Pet. 11; Pet. App. 96a n.1; Fed.
R. Civ. P. 60(b). Petitioner has not asked the district
court to hold its proceedings in abeyance pending this
Court's review of the petition for a writ of certiorari.
Thus, the district court could vacate or amend its judgment
at any time, calling into question the continued validity
of the turnover orders at issue here and perhaps
mooting this case. See Walker v. Turner, 22 U.S. (9
Wheat.) 541, 549 (1824).
For example, petitioner's motion to vacate argues,
inter alia, that the award of punitive damages-which
comprise 75% of the judgment, see Pet. App. 22a-is
impermissibly retroactive. See 10-cv-1689 D. Ct. Doc.
55-1, at 33-34. The bombing of the USS Cole occurred
in October 2000, but the statutory provision authorizing
punitive damages, 28 U.S.C. 1605A, was enacted in
2008, see National Defense Authorization Act for Fiscal
Year 2008, Pub. L. No. 110-181, Div. A, Tit. X,
§ 1083(a)(l), 122 Stat. 338. Petitioner's motion to vacate
therefore contends that the award of punitive damages
was improper because Congress did not clearly indicate
its intent for the punitive-damages provision to apply
retroactively. 10-cv-1689 D. Ct. Doc. 55-1, at 31-34; see
generally Landgrafv. USI Film Prods., 511 U.S. 244,
266 (1994).
In Owens v. Republic of Sudan, 864 F.3d 751 (2017),
petitions for cert. pending, No. 17-1236 and No. 17-1268
(filed Mar. 2, 2018), the D.C. Circuit accepted petitioner's
argument (which in that case supported petitioner's
challenge to damages arising from another incident,
see id. at 762). The court held that Section
Annex 360
21
1605A operates retroactively, but that Congress did not
make "a clear statement authorizing punitive damages
for past conduct," and it therefore vacated the punitive
damages award under the FSIA. Id. at 816; see id. at
815-817. In light of the change in controlling circuit
precedent, the district court may amend the underlying
judgment in this case, which could in turn raise questions
about the turnover orders' continued validity.
3. The petition for a writ of certiorari in Kumar presents
the same question as does this case. See Pet. at i,
Kumarv. Republic of Sudan, No.17-1269 (filed Mar. 9,
2018). Kumar, which arises on direct review of a motion
to vacate a default judgment, appears to present a better
vehicle for this Court's consideration. Id. at 16-17.
The Republic of Sudan, petitioner here and respondent
in Kumar, states that it is "indifferent" as to which
petition this Court grants, but it suggests that Kumar
presents its own vehicle problems. Resp. to Pet. at 4, 7,
Kumar, supra (No. 17-1269); see generally id. at 4-7.
Those issues do not appear to present significant vehicle
problems. For example, respondent in Kumar
notes, id. at 5, that petitioners there have been granted
time to effect proper service on remand from the
Fourth Circuit's decision, and that respondent in Kumar
will then move to dismiss the complaint on other
bases. But no such motion has been filed. And even if
litigation of such a motion proceeds in the district court,
that would not foreclose this Court from deciding the
question presented, which would determine whether
the default judgment in that case should have been set
aside and thus whether the proceedings on remand
should have occurred in the first place.
Because the question presented warrants review,
and because Kumar provides a better vehicle for this
Annex 360
22
Court's consideration, this Court should grant the petition
for a writ of certiorari in Kumar, and hold this petition
pending its disposition of that case. In the alternative,
to ensure that the Court may decide the question
presented, the Court may wish to grant certiorari in
both cases and consolidate them for review.
CONCLUSION
The petition for a writ of certiorari should be held
pending the Court's consideration of the petition for a
writ of certiorari in Kumar v. Republic of Sudan, No.
17-1269 (filed Mar. 9, 2018), and then be disposed of as
appropriate. In the alternative, if the Court grants the
petition in Kumar, the Court may wish to grant certiorari
in this case and consolidate it with Kumar for consideration
of the merits.
Respectfully submitted.
JENNIFER G. NEWSTEAD
Legal Adviser
Department of State
MAY2018
NOEL J. FRANCISCO
Solicitor General
CHAD A. READLER
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
ERICA L. Ross
Assistant to the Solicitor
General
SHARON SWINGLE
LEWIS S. YELIN
CASEN B. Ross
Attorneys
Annex 360
No. 16-1094
In the Supreme Court of the United States
REPUBLIC OF SUDAN, PETITIONER
v.
RICK HARRISON, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
JENNIFER G. NEWSTEAD
Legal Adviser
Department of State
Washington, D.C. 20520
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
CHAD A. READLER
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
ERICA L. ROSS
Assistant to the Solicitor
General
SHARON SWINGLE
LEWIS S. YELIN
CASEN B. ROSS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
[email protected]
(202) 514-2217
Annex 360
(I)
QUESTION PRESENTED
The Foreign Sovereign Immunities Act of 1976,
28 U.S.C. 1330, 1441(d), 1602 et seq., provides four hierarchical
and exclusive means for a litigant in the courts
of the United States to serve a foreign state. 28 U.S.C.
1608(a)(1)-(4). The third means, in Section 1608(a)(3),
provides for “a copy of the summons and complaint and
a notice of suit * * * to be addressed and dispatched by
the clerk of the court to the head of the ministry of foreign
affairs of the foreign state concerned.” 28 U.S.C.
1608(a)(3).
The question presented is whether service under
Section 1608(a)(3) may be accomplished by requesting
that the clerk mail the service package to the embassy
of the foreign state in the United States, if the papers
are directed to the minister of foreign affairs, or whether
Section 1608(a)(3) requires that process be mailed to
the ministry of foreign affairs in the country concerned.
Annex 360
(III)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statutory provisions involved ...................................................... 2
Statement ...................................................................................... 2
Summary of argument ................................................................. 8
Argument:
Section 1608(a)(3) does not permit service on a
foreign state by mailing process directed to the
foreign minister to the foreign state’s embassy in
the United States ................................................................. 11
A. The text of Section 1608(a)(3) is best read to
require that service be mailed to the ministry
of foreign affairs in the country concerned ......... 11
B. The United States’ treaty obligations and
diplomatic interests further demonstrate
that the FSIA does not permit service on a
foreign state by mailing process to the foreign
state’s embassy in the United States .................. 20
C. The FSIA’s legislative history confirms
that Congress intended the Act to bar service
by mail to a foreign state’s embassy in the
United States ......................................................... 29
Conclusion ................................................................................... 33
Appendix — Statutory provisions ........................................... 1a
TABLE OF AUTHORITIES
Cases:
Abbott v. Abbott, 560 U.S. 1 (2010) ................................. 22, 24
Alberti v. Empresa Nicaraguense De La Carne,
705 F.2d 250 (7th Cir. 1983) ............................................... 15
Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428 (1989) .............................................. 2, 12
Annex 360
IV
Cases—Continued: Page
Autotech Techs. LP v. Integral Research & Dev.
Corp., 499 F.3d 737 (7th Cir. 2007), cert. denied,
552 U.S. 1231 (2008) ...................................................... 15, 23
Barot v. Embassy of The Republic of Zambia,
785 F.3d 26 (D.C. Cir. 2015) ......................................... 14, 24
Bolivarian Republic of Venezuela v. Helmerich &
Payne Int’l Drilling Co., 137 S. Ct. 1312 (2017) ........ 29, 30
Boos v. Barry, 485 U.S. 312 (1988) .......................... 20, 24, 25
Cook v. United States, 288 U.S. 102 (1933) ......................... 21
Davis v. Michigan Dep’t of the Treasury,
489 U.S. 803 (1989).............................................................. 16
El-Hadad v. United Arab Emirates, 216 F.3d 29
(D.C. Cir. 2000) ................................................................... 27
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000).............................................................. 16
First City, Texas-Houston, N.A. v. Rafidain Bank,
281 F.3d 48 (2d Cir.), cert. denied, 537 U.S. 813
(2002) .................................................................................... 18
Gates v. Syrian Arab Republic, 646 F.3d 1
(D.C. Cir.), cert. denied, 565 U.S. 945 (2011) ................... 14
Gray v. Permanent Mission of the People’s Republic
of the Congo to the United Nations, 443 F. Supp.
816 (S.D.N.Y.), aff’d, 580 F.3d 1044 (2d Cir. 1978) .......... 27
Harris Corp. v. National Iranian Radio &
Television, 691 F.2d 1344 (11th Cir. 1982) ....................... 18
Hellenic Lines, Ltd. v. Moore, 345 F.2d 978
(D.C. Cir. 1965) ................................................................... 21
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .................... 30
Kolovrat v. Oregon, 366 U.S. 187 (1961) .............................. 22
Kumar v. Republic of Sudan, 880 F.3d 144 (4th Cir.
2018), petition for cert. pending, No. 17-1269
(filed Mar. 9, 2018) ..................................................... passim
Annex 360
V
Cases—Continued: Page
Magness v. Russian Fed’n, 247 F.3d 609 (5th Cir.),
cert. denied, 534 U.S. 892 (2001) ................................... 2, 18
McCulloch v. Sociedad Nacional de Marineros de
Honduras, 372 U.S. 10 (1963) ............................................ 25
Medellin v. Texas, 552 U.S. 491 (2008) ............................... 23
National City Bank v. Republic of China,
348 U.S. 356 (1955).............................................................. 25
Permanent Mission of India to the United Nations
v. City of New York, 551 U.S. 193 (2007) .......................... 29
Persinger v. Islamic Republic of Iran, 729 F.2d 835
(D.C. Cir.), cert. denied, 469 U.S. 881 (1984) ................... 25
Peterson v. Islamic Republic of Iran, 627 F.3d 1117
(9th Cir. 2010) ...................................................................... 18
Republic of Austria v. Altmann, 541 U.S. 677 (2004) ....... 12
Russello v. United States, 464 U.S. 16 (1983) ............... 16, 19
Samantar v. Yousuf, 560 U.S. 305 (2010) ........................... 30
Saudi Arabia v. Nelson, 507 U.S. 349 (1993) ................. 2, 12
767 Third Ave. Assocs. v. Permanent Mission of
The Republic of Zaire to the United Nations,
988 F.2d 295 (2d Cir.), cert. denied, 510 U.S. 819
(1993) ........................................................................ 20, 21, 23
Sherer v. Construcciones Aeronauticas, 987 F.2d
1246 (6th Cir.), cert. denied, 510 U.S. 818 (1993) ............. 18
Straub v. A P Green, Inc., 38 F.3d 448 (9th Cir. 1994) ...... 18
Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S.
176 (1982) ............................................................................. 22
Texas Trading & Milling Corp. v. Federal Republic
of Nigeria, 647 F.2d 300 (2d Cir. 1981), cert. denied,
454 U.S. 1148 (1982) ............................................................ 12
Transaero, Inc. v. La Fuerza Aerea Boliviana,
30 F.3d 148 (D.C. Cir. 1994), cert. denied,
513 U.S. 1150 (1995) ...................................................... 14, 18
Annex 360
VI
Cases—Continued: Page
Velidor v. L/P/G Benghazi, 653 F.2d 812
(3d Cir. 1981), cert. dismissed, 455 U.S. 929 (1982) ......... 18
Verlinden B.V. v. Central Bank of Nigeria,
461 U.S. 480 (1983).................................................... 2, 12, 24
Water Splash, Inc. v. Menon, 137 S. Ct. 1504 (2017) ......... 23
Constitution, treaties, statutes, regulation, and rules:
U.S. Const.:
Art. II:
§ 2, Cl. 2 ...................................................................... 22
§ 3 ............................................................................... 22
Convention on Service Abroad of Judicial and
Extrajudicial Documents, done Nov. 15, 1965,
20 U.S.T. 361, T.I.A.S. No. 6638 .......................................... 4
Vienna Convention on Diplomatic Relations,
done Apr. 18, 1961, 23 U.S.T. 3227,
500 U.N.T.S. 95 ......................................................... 7, 10, 20
art. 1(a), 23 U.S.T. 3230, 500 U.N.T.S. 96 ..................... 28
art. 1(b)-(h), 23 U.S.T. 3230-3231,
500 U.N.T.S. 96, 98 .................................................... 28
art. 22, 23 U.S.T. 3237, 500 U.N.T.S. 106 ............. passim
art. 22(1), 23 U.S.T. 3237,
500 U.N.T.S. 106 ...................................... 10, 20, 28, 29
art. 22(2), 23 U.S.T. 3237, 500 U.N.T.S. 108 ................. 20
Foreign Sovereign Immunities Act of 1976,
28 U.S.C. 1330, 1441(d), 1602 et seq. ............................... 1, 8
28 U.S.C. 1330(a) ......................................................... 2, 12
28 U.S.C. 1330(b) ......................................................... 2, 12
28 U.S.C. 1603(a) ....................................................... 27, 1a
28 U.S.C. 1604 ........................................................ 2, 12, 2a
28 U.S.C. 1605A ............................................................. 3, 4
28 U.S.C. 1605A(a) ............................................................ 4
Annex 360
VII
Statutes, regulation, and rules—Continued: Page
28 U.S.C. 1606 .................................................................... 4
28 U.S.C. 1608(a) ............................................... passim, 3a
28 U.S.C. 1608(a)(1) ................................................. 3, 4, 3a
28 U.S.C. 1608(a)(2) ................................................. 3, 4, 3a
28 U.S.C. 1608(a)(3) ........................................... passim, 3a
28 U.S.C. 1608(a)(4) .................................... 3, 16, 17, 19, 3a
28 U.S.C. 1608(b) ................................................. 15, 18, 4a
28 U.S.C. 1608(b)(2) .............................................. 9, 16, 4a
28 U.S.C. 1608(b)(3) .............................................. 9, 18, 4a
28 U.S.C. 1608(c) ................................................... 4, 16, 5a
28 U.S.C. 1608(c)(1) ................................................... 16, 5a
28 U.S.C. 1608(c)(2) ................................................... 16, 5a
28 U.S.C. 1608(d) ......................................................... 4, 5a
28 U.S.C. 1608(e) ......................................................... 5, 5a
28 U.S.C. 1610(c) ............................................................... 5
31 C.F.R. Pt. 538 ...................................................................... 5
Fed. R. Civ. P.:
Rule 4(i) (1976) ................................................................. 31
Rule 4(j)(1) ................................................................... 2, 6a
Rule 60(b) ........................................................................... 5
Rule 69(a) ........................................................................... 5
Miscellaneous:
Civil Div., U.S. Dep’t of Justice, Office of Foreign
Litigation (Aug. 1, 2017), https://www.justice.gov/
civil/office-foreign-litigation .............................................. 25
122 Cong. Rec. (1976):
p. 17,465 ............................................................................ 30
p. 17,469 ............................................................................ 30
James Crawford, Brownlie’s Principles of Public
International Law (8th ed. 2012)...................................... 22
Annex 360
VIII
Miscellaneous—Continued: Page
Ludwik Dembinski, The Modern Law of Diplomacy
(1988) .................................................................................... 22
Eileen Denza, Diplomatic Law (4th ed. 2016) ............. 21, 22
H.R. 11315, 94th Cong., 1st Sess. sec. 4(a) [§ 1608]
(1975) .................................................................................... 30
H.R. Rep. No. 1487, 94th Cong., 2d Sess.
(1976) .................................................................. 12, 30, 31, 32
Immunities of Foreign States: Hearing on
H.R. 3493 Before the Subcomm. on Claims and
Governmental Relations of the House Comm. on
the Judiciary, 93d Cong., 1st Sess. (1973) ....................... 12
Jurisdiction of U.S. Courts in Suits Against
Foreign States: Hearings on H.R. 11315 Before
the Subcomm. on Administrative Law and
Governmental Relations of the House Comm.
on the Judiciary, 94th Cong., 2d Sess. (1976) ................. 31
Letter from Leonard C. Meeker, Acting Legal
Adviser, U.S. Dep’t of State, to John W. Douglas,
Assistant Att’y Gen., U.S. Dep’t of Justice
(Aug. 10, 1964) ..................................................................... 21
Report of the International Law Commission
Covering the Work of its Ninth Session,
23 April-28 June 1957, 12 U.N. GAOR Supp.
No. 9, U.N. Doc. A/3623 (1957), reprinted in
[1957] 2 Y.B. Int’l L. Comm’n 131, U.N. Doc.A/
CN.4/SER.A/1957/Add.1 .................................................... 23
1 Restatement (Third) of the Foreign Relations Law
of the United States (1987) ................................................ 21
S. 566, 93d Cong. 1st Sess. sec. 1(1) [§ 1608] (1973) ........... 29
Service of Legal Process by Mail on Foreign
Governments in the U.S., 71 Dep’t St. Bull.,
No. 1840 (Sept. 30, 1974) .................................................... 30
Annex 360
IX
Miscellaneous—Continued: Page
Sovereign Immunity: Foreign Sovereign
Immunities Act: Service of Process upon a
Foreign State, 1979 Digest ch. 6, § 7 ................................ 15
U.S. Dep’t of State, 2 Foreign Affairs Manual (2013) ...... 26
Webster’s Third New International Dictionary
(1966) .................................................................................... 13
Annex 360
(1)
In the Supreme Court of the United States
No. 16-1094
REPUBLIC OF SUDAN, PETITIONER
v.
RICK HARRISON, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
This case concerns the proper means of effecting service
in an action against a foreign state under the Foreign
Sovereign Immunities Act of 1976 (FSIA or Act),
28 U.S.C. 1330, 1441(d), 1602 et seq. See 28 U.S.C.
1608(a)(3). Litigation against foreign states in U.S. courts
can have significant foreign affairs implications for the
United States, and can affect the reciprocal treatment
of the United States in the courts of other nations. At
the Court’s invitation, the United States filed a brief as
amicus curiae at the petition stage of this case.
Although the United States agrees with petitioner
that the court of appeals incorrectly resolved the question
presented in this case, the United States deeply
sympathizes with the extraordinary injuries suffered by
respondents, and it condemns in the strongest possible
terms the terrorist acts that caused those injuries. The
Annex 360
2
United States remains committed to opposing and deterring
state-sponsored terrorism and to supporting appropriate
recoveries for U.S. victims.
STATUTORY PROVISIONS INVOLVED
Pertinent statutory provisions are reproduced in an
appendix to this brief. App., infra, 1a-6a.
STATEMENT
1. The FSIA provides the sole basis for civil suits
against foreign states and their agencies or instrumentalities
in United States courts. See, e.g., Argentine Republic
v. Amerada Hess Shipping Corp., 488 U.S. 428,
434-435 & n.3 (1989). The FSIA establishes that “a foreign
state shall be immune from the jurisdiction of the
courts of the United States and of the States except as
provided” by the Act and “existing international agreements
to which the United States [was] a party at the
time of [its] enactment.” 28 U.S.C. 1604; see Saudi Arabia
v. Nelson, 507 U.S. 349, 355 (1993); Verlinden B.V.
v. Central Bank of Nigeria, 461 U.S. 480, 488-489 (1983).
If a suit comes within a statutory exception to foreign
sovereign immunity, the FSIA provides for subjectmatter
jurisdiction in district courts, 28 U.S.C. 1330(a),
as well as for personal jurisdiction over the foreign state
“where service has been made under section 1608,”
28 U.S.C. 1330(b).
Section 1608(a) provides the exclusive means for
serving “a foreign state or political subdivision of a foreign
state” in civil litigation. 28 U.S.C. 1608(a); see Fed.
R. Civ. P. 4( j)(1). The provision specifies four exclusive
methods of service, in hierarchical order. See, e.g., J.A.
176; Magness v. Russian Fed’n, 247 F.3d 609, 613
(5th Cir.), cert. denied, 534 U.S. 892 (2001). First, service
shall be made on a foreign state “in accordance with
any special arrangement for service between the plaintiff
Annex 360
3
and the foreign state or political subdivision.” 28 U.S.C.
1608(a)(1). Second, if no such special arrangement exists,
service shall be made “in accordance with an applicable
international convention on service of judicial documents.”
28 U.S.C. 1608(a)(2). Third, if no such international
convention applies, service shall be made
by sending a copy of the summons and complaint and
a notice of suit, together with a translation of each
into the official language of the foreign state, by any
form of mail requiring a signed receipt, to be addressed
and dispatched by the clerk of the court to
the head of the ministry of foreign affairs of the foreign
state concerned.
28 U.S.C. 1608(a)(3). Fourth, if service cannot be made
within thirty days under Section 1608(a)(3), service
shall be made by mailing by the clerk of the court to the
State Department for service “through diplomatic channels
to the foreign state.” 28 U.S.C. 1608(a)(4).
2. On October 12, 2000, terrorists bombed the USS
Cole in the Port of Aden, Yemen. J.A. 84. Seventeen
U.S. service members were killed and 42 others were
injured. Ibid. In 2010, the individual respondents, who
are sailors and spouses of sailors injured in the bombing,
sued petitioner, the Republic of Sudan, in the District
Court for the District of Columbia. Pet. 8. Respondents
relied on the cause of action set forth in
28 U.S.C. 1605A, which is available in certain actions
against designated state sponsors of terrorism such as
the Republic of Sudan. Respondents alleged that petitioner
provided material support to the al Qaeda operatives
who carried out the bombing. Pet. 8; J.A. 170.
Respondents could not serve petitioner under Section
1608(a)’s first two methods of service. Respondents
had no “special arrangement” with petitioner for service,
Annex 360
4
see 28 U.S.C. 1608(a)(1), and petitioner is not a party to
the Convention on Service Abroad of Judicial and Extrajudicial
Documents, done Nov. 15, 1965, 20 U.S.T.
361, T.I.A.S. No. 6638; see Kumar v. Republic of Sudan,
880 F.3d 144, 153 n.4 (4th Cir. 2018), petition for cert.
pending, No. 17-1269 (filed Mar. 9, 2018); 28 U.S.C.
1608(a)(2). Respondents therefore attempted to serve
petitioner under Section 1608(a)(3). J.A. 171-172, 177.
They requested that the clerk of the court mail a copy
of the summons and complaint via registered mail, return
receipt requested, to:
Republic of Sudan
Deng Alor Koul
Minister of Foreign Affairs
Embassy of the Republic of Sudan
2210 Massachusetts Avenue NW
Washington, DC 20008
J.A. 172 (citation omitted). The clerk did so on November
17, 2010, and the court received a signed receipt on
November 23, 2010. J.A. 73-74.
Petitioner did not respond within 60 days of the
signed receipt, as required by 28 U.S.C. 1608(c) and (d).
Following a hearing, the district court entered a default
judgment against petitioner. J.A. 81-83. The court determined
that service on petitioner was proper, J.A. 88,
and that it had jurisdiction under Section 1605A(a), J.A.
89-127. The court then concluded that respondents had
established petitioner’s liability under Sections 1605A
and 1606, and it awarded respondents $314.7 million in
damages. J.A. 81-83, 127-139. Respondents attempted
to serve the default judgment on petitioner by the same
delivery method—through the clerk’s mailing of the papers
to the Embassy of the Republic of Sudan in Washington,
D.C., in a package directed to the minister of
Annex 360
5
foreign affairs. J.A. 173; see 28 U.S.C. 1608(e) (requiring
service of any default judgment in the manner prescribed
for service of the summons and complaint).
3. Respondents registered the default judgment in
the District Court for the Southern District of New
York. J.A. 173. Both that court and the District Court
for the District of Columbia determined that respondents
had effected service of the default judgment and
that respondents could seek attachment and execution
of the judgment. J.A. 173-174; see 28 U.S.C. 1610(c).
Respondents then filed three petitions in the
Southern District of New York seeking turnover of
assets of petitioner’s agencies and instrumentalities
held by respondent banks Mashreqbank PSC, BNP
Paribas, and Credit Agricole Corporate and Investment
Bank—assets that had been frozen pursuant to the
Sudanese Sanctions Regulations, 31 C.F.R. Pt. 538. J.A.
174; see Fed. R. Civ. P. 69(a). Respondents again attempted
to serve the relevant papers on Sudan by
mailing them to the Embassy of the Republic of Sudan
in Washington, D.C., in a package directed to the
Minister of Foreign Affairs. J.A. 174. The district court
granted respondents’ petitions and issued three turnover
orders against the banks in partial satisfaction of
the default judgment. J.A. 149-164.
Petitioner then entered an appearance in the Southern
District of New York and timely appealed the issuance
of the turnover orders. J.A. 174.1
1 While that appeal was pending, petitioner entered an appearance
in the litigation in the District Court for the District of Columbia
and moved to vacate the default judgment under Federal Rule
of Civil Procedure 60(b). That motion remains pending. Pet. 11;
J.A. 211 n.1; see 10-cv-1689 D. Ct. Doc. 55 (June 14, 2015).
Annex 360
6
4. The court of appeals affirmed. J.A. 168-189. It
concluded that respondents had properly effected service
under Section 1608(a)(3) in the original action. J.A.
175-184. The court held that service under Section
1608(a)(3), which requires that process be “addressed
and dispatched * * * to the head of the ministry of foreign
affairs of the foreign state concerned,” 28 U.S.C.
1608(a)(3), could be accomplished by providing for delivery
to the “minister of foreign affairs via an embassy
address.” J.A. 179. According to the court, Section
1608(a)(3) did not require that service be made on the
Minister of Foreign Affairs of Sudan at the Ministry of
Foreign Affairs in Khartoum, Sudan, because the statute
does not expressly state that process must “be mailed
to a location in the foreign state,” and respondents’
method of service “could reasonably be expected to result
in delivery to the intended person.” Ibid.; see J.A.
182 (stating that mailing process to the embassy “makes
* * * sense from a reliability perspective and as a matter
of policy”).
The court of appeals recognized that the FSIA’s legislative
history “seemed to contemplate—and reject—
service on an embassy,” in order to “prevent any inconsistency
with the Vienna Convention on Diplomatic Relations,”
which provides that “‘[t]he premises of the [diplomatic]
mission shall be inviolable.’” J.A. 181-182 (citation
omitted; brackets in original). But the court distinguished
“ ‘service on an embassy’ ” from “service on a
minister of foreign affairs via or care of an embassy,”
which the court concluded was permissible and did not
implicate “principles of mission inviolability and diplomatic
immunity.” J.A. 181-183 (brackets and citation
omitted). Having concluded that respondents’ initial service
was proper, the court determined that respondents’
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service of the default judgment and all post-judgment
motions was proper as well. J.A. 183-184.
5. Following additional briefing and argument in
which the United States participated, see J.A. 192-206,
the court of appeals denied petitioner’s motion for panel
rehearing. J.A. 212. Although the court “acknowledge[
d]” that the issue “presents a close call,” J.A. 213,
it adhered to its prior conclusion that Section 1608(a)(3)
permitted respondents to serve petitioner by requesting
that the clerk mail papers “to the minister of foreign
affairs via Sudan’s embassy in Washington, D.C.,” because
the statute “does not specify that the mailing be
sent to the head of the ministry of foreign affairs in the
foreign country,” J.A. 214. The court reiterated its view
that respondents’ method of service “could reasonably
be expected to result in delivery to the intended person.”
Ibid. And it again stated that although Section
1608(a)(3) does not permit service “ ‘on’ ” an embassy,
“[t]he legislative history does not address * * * whether
Congress intended to permit the mailing of service to a
foreign minister via an embassy.” J.A. 218 (citation
omitted).
For similar reasons, the court rejected, “with some
reluctance,” the United States’ argument that the court’s
interpretation of Section 1608(a)(3) contravenes the Vienna
Convention on Diplomatic Relations (VCDR), done
Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95. J.A. 225;
see J.A. 220-225. In the court’s view, “service on an embassy
or consular official would be improper” under the
VCDR, but service with papers “addressed to the Minister
of Foreign Affairs via the embassy,” conforms to
the Convention’s requirements. J.A. 222. In addition,
while the United States had noted that it “consistently
rejects attempted service via direct delivery to a U.S.
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8
embassy abroad” because it believes such service to be
inconsistent with international law, the court stated
that its rule would “not preclude the United States (or
any other country) from enforcing a policy of refusing
to accept service via its embassies.” Ibid. (citation omitted).
Finally, the court opined that “the Sudanese Embassy’s
acceptance of the service package surely constituted
‘consent’ ” for purposes of the VCDR. J.A. 223.
The court of appeals denied rehearing en banc. J.A.
231-232.
SUMMARY OF ARGUMENT
The court of appeals held that the Foreign Sovereign
Immunities Act (FSIA or Act), 28 U.S.C. 1330, 1441(d),
1602 et seq., permits service on a foreign state to be effected
by sending service papers, directed to the head
of the ministry of foreign affairs, to the foreign state’s
embassy in the United States. J.A. 178-183, 213-225;
see 28 U.S.C. 1608(a)(3). That holding contravenes the
most natural reading of the statutory text, the United
States’ treaty obligations, and the FSIA’s legislative
history. It also threatens harm to the United States’
foreign relations and reciprocal treatment in courts
abroad. When properly construed, Section 1608(a)(3)
requires that the clerk of court send service documents
to the ministry of foreign affairs at the foreign state’s
seat of government.
A. 1. Section 1608(a) provides four exclusive, hierarchical
methods for serving a foreign state in litigation in
the United States. The third method of service, at issue
here, provides for “sending a copy” of the relevant documents
“by any form of mail requiring a signed receipt,
to be addressed and dispatched by the clerk of the court
to the head of the ministry of foreign affairs of the foreign
state concerned.” 28 U.S.C. 1608(a)(3). The most
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9
natural understanding of that text is that it requires the
clerk both to mark the foreign minister’s name or title
on the package, and to send it to that individual at his
principal place of performing his official duties—the
foreign ministry at the foreign state’s seat of government.
By contrast, had Congress intended to permit service
to be made “via” or in “care of ” the foreign state’s
embassy in the United States, as the court of appeals
held, it would have provided for service on the ambassador,
or through an agent. Indeed, a neighboring provision,
Section 1608(b)(2), expressly provides for service
on an agent. Congress’s failure to include similar language
in Section 1608(a) confirms that it did not intend
for embassy personnel to function as de facto agents for
forwarding service of process to the head of the ministry
of foreign affairs.
2. The court of appeals erred in construing Section
1608(a)(3) to be satisfied by mailing the service package
to an embassy. The court stated that such a mailing
complied with Section 1608(a)(3) because it “could reasonably
be expected to result in delivery to the intended
person” and the embassy was a “logical” location for
service. J.A. 214 & n.3. But the statutory text refutes
the court’s imposition of an actual-notice or reasonablelikelihood
standard. Unlike Section 1608(a)(3), Section
1608(b)(3) expressly permits service by certain methods
“if reasonably calculated to give actual notice.” 28 U.S.C.
1608(b)(3). Moreover, the court of appeals’ reasoning
incorrectly assumes—contrary to Section 1608(a)’s four
hierarchical methods of service—that service under Section
1608(a)(3) should be available in most circumstances.
B. The best reading of the statutory text is reinforced
by the United States’ treaty obligations and diplomatic
interests.
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10
1. Article 22(1) of the Vienna Convention on Diplomatic
Relations (VCDR), done Apr. 18, 1961, 23 U.S.T.
3227, 3237, 500 U.N.T.S. 95, 106, to which the United
States is a party, provides that “[t]he premises of ” a foreign
state’s “mission shall be inviolable,” and “[t]he
agents of the receiving State may not enter them, except
with the consent of the head of the mission.” The Executive
Branch has long interpreted Article 22 and the
principle of mission inviolability it codifies to prohibit
service on an embassy by mail. That interpretation is
shared by other countries and leading commentators,
and it is supported by the Convention’s drafting history.
2. Failing to protect mission inviolability within the
United States would risk harm to the United States’
foreign relations. The United States has substantial
diplomatic interests in ensuring that foreign states need
not appear in domestic courts unless and until they are
properly served under the FSIA, in a manner consistent
with the United States’ treaty obligations. The United
States also has a significant interest in receiving reciprocal
treatment in courts abroad. At present, the
United States routinely refuses to recognize the propriety
of service through mail or personal delivery by a private
party or foreign court to a United States embassy, even
if a mail clerk at the embassy has signed for the
package. The rule adopted by the court of appeals
threatens the United States’ continued ability to successfully
assert that it has not been properly served in
these instances.
3. The court of appeals agreed that the VCDR
prohibits service “on” an embassy, but it concluded that
service “via” the embassy does not contravene the Convention.
That distinction does not withstand scrutiny.
In either case, sending service documents to the
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11
embassy violates mission inviolability as recognized by
Article 22 of the VCDR. Nor was the court of appeals
correct that the embassy here “consented” to service
consistent with the VCDR, for the VCDR provides that
only the head of the mission can consent to an intrusion
upon inviolability. Nor was the onus on embassy
personnel to reject service.
C. Finally, the legislative history of the FSIA
confirms that service under Section 1608(a)(3) requires
sending the service package to the head of the foreign
ministry in the country concerned. Congress considered
and rejected statutory language that would
have permitted service on ambassadors because of concerns
that such service would violate the VCDR. The
House Report accompanying the bill that became the
FSIA likewise criticized attempts at service by mailing
documents “to” an embassy and stated that such service
would not be permitted under the Act. And the Federal
Rule of Civil Procedure on which Section 1608(a)(3) was
patterned, as well as statements at congressional
hearings, confirm that Congress expected for service
under that provision to occur abroad.
ARGUMENT
SECTION 1608(a)(3) DOES NOT PERMIT SERVICE ON A
FOREIGN STATE BY MAILING PROCESS DIRECTED TO
THE FOREIGN MINISTER TO THE FOREIGN STATE’S
EMBASSY IN THE UNITED STATES
A. The Text Of Section 1608(a)(3) Is Best Read To Require
That Service Be Mailed To The Ministry Of Foreign
Affairs In The Country Concerned
1. a. Prior to 1976, there was “no statutory procedure
for service of process by which [a litigant could]
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12
obtain personal jurisdiction over foreign states.” Immunities
of Foreign States: Hearing on H.R. 3493 Before
the Subcomm. on Claims and Governmental Relations
of the House Comm. on the Judiciary, 93d Cong.,
1st Sess. 14 (1973) (Statement of Hon. Charles N. Brower,
Legal Advisor, Dep’t of State). That changed in 1976,
when Congress enacted the Foreign Sovereign Immunities
Act.
The FSIA is a “comprehensive statute containing a
‘set of legal standards governing claims of immunity in
every civil action against a foreign state or its political
subdivisions, agencies, or instrumentalities.’ ” Republic
of Austria v. Altmann, 541 U.S. 677, 691 (2004) (quoting
Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.
480, 488 (1983)). Under the FSIA, “a foreign state is
presumptively immune from the jurisdiction of United
States courts.” Saudi Arabia v. Nelson, 507 U.S. 349,
355 (1993); see H.R. Rep. No. 1487, 94th Cong., 2d Sess.
17 (1976) (House Report). “[A] federal court lacks
subject-matter jurisdiction over a claim against a foreign
state” unless “a specified exception applies.” Nelson,
507 U.S. at 355; see 28 U.S.C. 1330(a), 1604. And
personal jurisdiction over the foreign state exists only
where the requirements for subject matter jurisdiction
are met and “service has been made under section
1608.” 28 U.S.C. 1330(b); see Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 435 n.3
(1989); Texas Trading & Milling Corp. v. Federal Republic
of Nigeria, 647 F.2d 300, 308 (2d Cir. 1981) (the
FSIA “makes the statutory aspect of personal jurisdiction
simple: subject matter jurisdiction plus service of
process equals personal jurisdiction”), cert. denied,
454 U.S. 1148 (1982).
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13
b. Section 1608(a) provides four exclusive, hierarchical
means for serving “a foreign state or political subdivision
of a foreign state” in civil litigation. 28 U.S.C.
1608(a). The provision at issue here, Section 1608(a)(3),
permits a litigant to serve a foreign state
by sending a copy of the summons and complaint and
a notice of suit, together with a translation of each
into the official language of the foreign state, by any
form of mail requiring a signed receipt, to be addressed
and dispatched by the clerk of the court to
the head of the ministry of foreign affairs of the foreign
state concerned.
28 U.S.C. 1608(a)(3).
The most natural understanding of the text of Section
1608(a)(3) is that it requires that the service package
be mailed to the ministry of foreign affairs at the
foreign state’s seat of government. The statute mandates
that service be “addressed and dispatched * * *
to the head of the ministry of foreign affairs of the foreign
state concerned.” 28 U.S.C. 1608(a)(3). The clerk
of court therefore must both “address” the service papers
to the head of the ministry of foreign affairs and
“dispatch” the service package to that individual by
sending it to him. See Webster’s Third New International
Dictionary 24, 653 (1966) (defining “address” as
“to write or otherwise mark directions for delivery on,”
and “dispatch” as “to send off or away * * * with
promptness or speed often as a matter of official business”);
see also Kumar v. Republic of Sudan, 880 F.3d
144, 155 (4th Cir. 2018), petition for cert. pending,
No. 17-1269 (filed Mar. 9, 2018) (statutory language “reinforce[
s] that the location [for delivery of service] must
be related to the intended recipient,” i.e., the minister
of foreign affairs). A state’s foreign minister does not
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14
work in the state’s embassies throughout the world and
“is rarely—if ever—present” in those locations. Kumar,
880 F.3d at 155. Thus, one would not naturally say
that service papers mailed to the foreign state’s embassy
in the United States have been “addressed and
dispatched * * * to the head of the ministry of foreign
affairs of the foreign state concerned.” 28 U.S.C.
1608(a)(3). And no other statutory language suggests
that Congress expected foreign ministers to be served
at locations removed from their principal place of performance
of their official duties.
The best reading of the statutory text is therefore
that delivery must be made to the minister of foreign
affairs at his principal place of business—the ministry
of foreign affairs in the foreign state’s seat of government.
And indeed, that is precisely how courts have interpreted
the statute, albeit in cases that did not involve
respondents’ particular method of service. See Barot v.
Embassy of The Republic of Zambia, 785 F.3d 26, 30
(D.C. Cir. 2015) (Section 1608(a)(3) “requires” “sen[ding]”
the papers “to the ‘head of the ministry of foreign affairs’
in Lusaka, Zambia, whether identified by name or
title, and not to any other official or agency.”); Transaero,
Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 154
(D.C. Cir. 1994) (Section 1608(a)(3) “mandates service
of the Ministry of Foreign Affairs.”), cert. denied, 513 U.S.
1150 (1995); see also Gates v. Syrian Arab Republic,
646 F.3d 1, 4 (D.C. Cir.) (no dispute that litigants complied
with Section 1608(a)(3) by addressing service to
the Syrian Ministry of Foreign Affairs), cert. denied,
565 U.S. 945 (2011). Cf. Kumar, 880 F.3d at 155 (“Serving
the foreign minister at a location removed from
where he or she actually works is at least in tension with
Congress’ objective, even if it is not strictly prohibited
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15
by the statutory language”). The State Department
also has long interpreted Section 1608(a)(3) to require
the clerk of court to send service documents “directly to
the ministry of foreign affairs of the defendant sovereign
state.” Sovereign Immunity: Foreign Sovereign
Immunities Act: Service of Process upon a Foreign
State, 1979 Digest ch. 6, § 7, at 894 (quoting State Department
message to “all diplomatic and consular posts,
sent May 15, 1979”).
c. If Congress had intended to permit service on a
foreign state “via” its embassy in the United States, as
the court of appeals held, e.g., J.A. 216, it would have
provided that service be dispatched to the foreign
state’s ambassador, or to an agent, rather than “addressed
and dispatched * * * to the head of the ministry
of foreign affairs.” 28 U.S.C. 1608(a)(3). As the court below
agreed, however, and as other courts have held, service
on an embassy or an ambassador is improper under
the statute. See J.A. 222; Autotech Techs. LP v. Integral
Research & Dev. Corp., 499 F.3d 737, 748 (7th Cir.
2007) (“[S]ervice through an embassy is expressly banned
* * * by U.S. statutory law.”), cert. denied, 552 U.S. 1231
(2008); Alberti v. Empresa Nicaraguense De La Carne,
705 F.2d 250, 253 (7th Cir. 1983) (service on ambassador
is “simply inadequate” under Section 1608(a)(3)).
Nor does the statutory text suggest that Congress
intended for embassy personnel to function as “de facto
agent[s]” for forwarding “service of process” under
Section 1608(a)(3). Kumar, 880 F.3d at 159 n.11. The
neighboring provision of the FSIA, Section 1608(b)—
which governs service on an agency or instrumentality
of a foreign state—expressly provides for service by
delivery to an “officer, a managing or general agent, or
to any other agent authorized by appointment or by law
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16
to receive service of process in the United States.”
28 U.S.C. 1608(b)(2). Congress’s failure to include similar
language in Section 1608(a) underscores that Congress
did not envision that service would be sent to a foreign
state’s embassy for forwarding to the head of the
ministry of foreign affairs. See, e.g., Russello v. United
States, 464 U.S. 16, 23 (1983) (“Where Congress includes
particular language in one section of a statute
but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”)
(brackets and citation omitted); see also FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)
(“It is a ‘fundamental canon of statutory construction
that the words of a statute must be read in their context
and with a view to their place in the overall statutory
scheme.’ ”) (quoting Davis v. Michigan Dep’t of the
Treasury, 489 U.S. 803, 809 (1989)).2
2. The court of appeals was thus wrong to suggest
that Section 1608(a)(3) “is silent as to a specific location
2 Section 1608(c), which governs the time when service shall be
deemed to have been made, further supports the conclusion that
Congress did not intend for service to be made “via” the foreign
state’s embassy in the United States. Section 1608(c)(2) deems service
to have been made under Section 1608(a)(3) on the date of receipt
of the signed and returned postal receipt. 28 U.S.C. 1608(c)(2). By
contrast, where Congress expected for service to be transmitted via
an intermediary—the Secretary of State under Section 1608(a)(4)—
it provided for service to be deemed complete when actually transmitted
to the minister of foreign affairs. 28 U.S.C. 1608(c)(1). Had
Congress intended to allow service under Section 1608(a)(3) to be
made “via” the foreign state’s embassy in the United States, it likely
would have similarly provided that service under that provision be
deemed complete when transmitted by the embassy to the foreign
minister.
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17
where the mailing is to be addressed.” J.A. 178; see J.A.
213. Instead, the text of Section 1608(a)(3) and surrounding
provisions indicate that service must be sent to the
ministry of foreign affairs in the country concerned. In
any event, the court of appeals drew incorrect inferences
from what it interpreted to be statutory silence.
a. The court of appeals first contrasted Section
1608(a)(3) with Section 1608(a)(4), which requires the
clerk of court to mail papers “to the Secretary of State
in Washington, District of Columbia.” J.A. 215; see
J.A. 175-177. As the Fourth Circuit explained in rejecting
respondents’ method of service in Kumar, however,
reliance on Section 1608(a)(4) to interpret Section
1608(a)(3) is unpersuasive. Section 1608(a)(3) directs
attention to locations in many countries—“to the head
of the ministry of foreign affairs of the foreign state concerned.”
Section 1608(a)(4), by contrast, “directs attention
to one known location for one country—the United
States—and so can be easily identified.” Kumar, 880 F.3d
at 159.
b. The court of appeals also expressed the view that
“[a] mailing addressed to the minister of foreign affairs
via Sudan’s embassy in Washington, D.C.” complied with
Section 1608(a)(3) because it “could reasonably be expected
to result in delivery to the intended person,” J.A.
214, and “makes * * * sense from a reliability perspective
and as a matter of policy,” J.A. 182. The court thus construed
Section 1608(a)(3) to effectively include an actualnotice
standard that it believed was satisfied because
“[a]n embassy is a logical place to direct a communication
intended to reach a foreign country.” J.A. 214 n.3.
The court of appeals’ rationale is unpersuasive. Where
Congress envisioned a reasonable-efforts or actual-notice
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18
standard for service under the FSIA, it said so expressly.
Section 1608(b), governing service on an agency
or instrumentality, contains a “catchall provision,” Kumar,
880 F.3d at 154, that permits service by certain
methods “if reasonably calculated to give actual notice,”
28 U.S.C. 1608(b)(3). Section 1608(b) is therefore “concerned
with substance rather than form,” Transaero,
30 F.3d at 154, and the courts of appeals have “generally
h[e]ld” that it “may be satisfied by technically faulty
service that gives adequate notice to the foreign state.”
Id. at 153; see, e.g., First City, Texas-Houston, N.A. v.
Rafidain Bank, 281 F.3d 48, 54 (2d Cir.), cert. denied,
537 U.S. 813 (2002); Magness v. Russian Fed’n, 247 F.3d
609, 616 (5th Cir.), cert. denied, 534 U.S. 892 (2001);
Straub v. A P Green, Inc., 38 F.3d 448, 453 (9th Cir.
1994); Sherer v. Construcciones Aeronauticas, 987 F.2d
1246, 1250 (6th Cir.), cert. denied, 510 U.S. 818 (1993);
Harris Corp. v. National Iranian Radio & Television,
691 F.2d 1344, 1352 (11th Cir. 1982); Velidor v. L/P/G
Benghazi, 653 F.2d 812, 821 (3d Cir. 1981), cert. dismissed,
455 U.S. 929 (1982). But Section 1608(a) contains
no similar “catchall,” Kumar, 880 F.3d at 154, and
courts generally have interpreted it to require “strict
compliance,” ibid.; Magness, 247 F.3d at 615; Transaero,
30 F.3d at 154. But see Peterson v. Islamic Republic of
Iran, 627 F.3d 1117, 1129 (9th Cir. 2010) (upholding defective
service based on substantial compliance with
Section 1608(a)(3) where plaintiffs’ counsel, rather than
the clerk of court, mailed a copy of the default judgment
to the minister of foreign affairs). Thus, while service
reasonably calculated to provide actual notice might
suffice under Section 1608(b), it is plainly insufficient
under Section 1608(a), unless it specifically complies
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19
with one of the enumerated methods of service. See,
e.g., Russello, 464 U.S. at 23.
The standard applied by the court of appeals also is
at odds with Section 1608(a)’s hierarchical structure.
The court stated that service by “mail addressed to an
embassy” would reliably be transmitted to a foreign
state’s foreign minister because it could be “forwarded
to the minister by diplomatic pouch.” J.A. 182. As an
initial matter, one sovereign cannot dictate the internal
procedures of the embassy of another sovereign. Moreover,
the court of appeals’ reasoning incorrectly assumes
that service under Section 1608(a)(3) should be
available in most circumstances. In fact, the statute
“specifically contemplates that service via [S]ubsection
(a)(3) may not be possible in every foreign state.” Kumar,
880 F.3d at 160. To that end, it provides that if
service under that subsection cannot be made within
30 days, a plaintiff may attempt service under Section
1608(a)(4), which provides for the State Department to
transmit service “through diplomatic channels to the
foreign state.” 28 U.S.C. 1608(a)(4). As the Fourth Circuit
correctly observed, “[t]hat is the subsection that
Congress intended plaintiffs to use to take advantage of
the reliability and security of the diplomatic pouch.”
Kumar, 880 F.3d at 160.3
3 The court of appeals’ standard is also inconsistent with Congress’s
delineation in Section 1608(a) of four exclusive methods of service.
While the court stated that its opinion did “not suggest” that service
under Section 1608(a)(3) could be made “via other offices in the
United States * * * , such as, e.g., a consular office, the country’s
mission to the United Nations, or a tourism office,” J.A. 214 n.3, the
court provided no reason why its reasonable-efforts or actual-notice
standard would not be satisfied by mailing documents to those
locations (or others) for forwarding to the minister of foreign affairs.
Cf. Kumar, 880 F.3d at 155 (“[T]he view that subsection (a)(3) only
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20
B. The United States’ Treaty Obligations And Diplomatic
Interests Further Demonstrate That The FSIA Does Not
Permit Service On A Foreign State By Mailing Process
To The Foreign State’s Embassy In The United States
1. a. Interpreting Section 1608(a)(3) to require that
service materials be sent to the ministry of foreign
affairs in the country concerned, not the foreign state’s
embassy in the United States, also ensures compliance
with the Vienna Convention on Diplomatic Relations,
which the United States signed in 1961 and ratified in
1972. See 23 U.S.T. 3227. The VCDR “codified longstanding
principles of customary international law with
respect to diplomatic relations.” 767 Third Ave. Assocs.
v. Permanent Mission of The Republic of Zaire to the
United Nations, 988 F.2d 295, 300 (2d Cir.), cert.
denied, 510 U.S. 819 (1993). Article 22 of the VCDR sets
out certain obligations of the United States with respect
to foreign diplomats and diplomatic missions in this
country. Boos v. Barry, 485 U.S. 312, 322 (1988).
Article 22(1) provides that “[t]he premises of ” a foreign
state’s “mission shall be inviolable,” and “[t]he agents
of the receiving State may not enter them, except with
the consent of the head of the mission.” VCDR art.
22(1), 23 U.S.T. 3237, 500 U.N.T.S. 106; see also id. art.
22(2), 23 U.S.T. 3237, 500 U.N.T.S. 108 (“The receiving
State is under a special duty to take all appropriate
steps to protect the premises of the mission against any
intrusion or damage and to prevent any disturbance of
the peace of the mission or impairment of its dignity.”).
Mission inviolability means, among other things, that
requires a particular recipient, and not a particular location, would
allow the clerk of court to send service to any geographic location
so long as the head of the ministry of foreign affairs of the defendant
foreign state is identified as the intended recipient.”).
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21
“the receiving State * * * is under a duty to abstain
from exercising any sovereign rights, in particular law
enforcement rights, in respect of inviolable premises.”
Eileen Denza, Diplomatic Law 110 (4th ed. 2016) (Denza);
see 767 Third Ave. Assocs., 988 F.2d at 300 (The VCDR
“recognize[s] no exceptions to mission inviolability.”).
Section 1608(a)(3) should be interpreted in a manner
that is consistent with the United States’ obligations under
the VCDR. See, e.g., Cook v. United States,
288 U.S. 102, 120 (1933) (“A treaty will not be deemed
to have been abrogated or modified by a later statute
unless such purpose on the part of Congress has been
clearly expressed.”); 1 Restatement (Third) of the Foreign
Relations Law of the United States § 114 (1987)
(“Where fairly possible, a United States statute is to be
construed so as not to conflict * * * with an international
agreement of the United States.”). Construing
Section 1608(a)(3) to require that process be mailed to
the ministry of foreign affairs in the foreign state protects
the inviolability of foreign embassies within the United
States.
b. The Executive Branch has long interpreted
Article 22 and the customary international law it
codifies to preclude serving a foreign state with process
by mail or personal delivery to the state’s embassy. In
1964, the State Department took the view that “[t]he
establishment by one country of a diplomatic mission in
the territory of another does not * * * empower that
mission to act as agent of the sending state for the
purpose of accepting service of process.” Hellenic
Lines, Ltd. v. Moore, 345 F.2d 978, 982 (D.C. Cir. 1965)
(Washington, J., concurring) (quoting Letter from
Leonard C. Meeker, Acting Legal Adviser, U.S. Dep’t
of State, to John W. Douglas, Assistant Att’y Gen., U.S.
Annex 360
22
Dep’t of Justice (Aug. 10, 1964)). The United States has
consistently adhered to that position, including in the
court of appeals in this case. See Gov’t C.A. Amicus Br.
5-6; Gov’t C.A. Amicus Br. at 10-13, Kumar, supra
(No. 16-2267).
As the Fourth Circuit recognized, that “longstanding
policy and interpretation” of Article 22 is “authoritative,
reasoned, and entitled to great weight.” Kumar, 880 F.3d
at 158; see Abbott v. Abbott, 560 U.S. 1, 15 (2010) (“It is
well settled that the Executive Branch’s interpretation
of a treaty ‘is entitled to great weight.’ ”) (citation omitted);
Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S.
176, 184-185 (1982); Kolovrat v. Oregon, 366 U.S. 187,
194 (1961); see generally U.S. Const. Art. II, § 2, Cl. 2,
and § 3 (reserving to the Executive Branch the ability
to “make Treaties” and “receive Ambassadors and
other public Ministers”). The Executive Branch’s interpretation
is consistent with the prevailing understanding
of Article 22. As a leading treatise explains, it is
“generally accepted” that “service by post on mission
premises is prohibited.” Denza 124. Other treatises are
in accord. See James Crawford, Brownlie’s Principles
of Public International Law 403 (8th ed. 2012) (“It follows
from Article 22 that writs cannot be served, even
by post, within the premises of a mission.”); Ludwik
Dembinski, The Modern Law of Diplomacy 193 (1988)
(Article 22 “protects the mission from receiving by messenger
or by mail any notification from the judicial or
other authorities of the receiving State.”). And other
countries also share this understanding. See, e.g., Pet.
Supp. Cert. Br. App. 2a (Note Verbale from the Republic
of Austria to the State Department (Apr. 11, 2017));
Kingdom of Saudi Arabia Cert. Amicus Br. 12-14.
Annex 360
23
Moreover, domestically, the Fourth and Seventh Circuits
have recognized that attempting to serve a foreign
state or its instrumentality “through an embassy [in the
United States] is expressly banned * * * by [the VCDR].”
Autotech Techs. LP, 499 F.3d at 748; see Kumar, 880 F.3d
at 156 (“[T]he Vienna Convention’s inviolability provision
prohibits * * * service delivered to the foreign nation’s
embassy in the United States.”).
The Convention’s drafting history also supports the
United States’ view. See Water Splash, Inc. v. Menon,
137 S. Ct. 1504, 1511 (2017) (considering treaty drafting
history); Medellin v. Texas, 552 U.S. 491, 507-508 (2008)
(same). “[T]he drafters of the Vienna Convention considered
and rejected exceptions” to mission inviolability,
“opting instead for broad mission inviolability.” 767 Third
Avenue Assocs., 988 F.2d at 298. In a report accompanying
a preliminary draft of the VCDR, the United Nations
International Law Commission stated that “the receiving
State is obliged to prevent its agents from entering the
premises for any official act whatsoever.” Report of the
International Law Commission Covering the Work of Its
Ninth Session, 23 Apr.-28 June 1957, 12 U.N. GAOR
Supp. No. 9, at 6, U.N. Doc. A/3623 (1957), reprinted in
[1957] 2 Y.B. Int’l L. Comm’n 131, 137, U.N. Doc. A/CN.4/
SER.A/1957/Add.1. With respect to service of process
specifically, the report explained:
[N]o writ shall be served within the premises of the
mission, nor shall any summons to appear before a
court be served in the premises by a process server.
Even if process servers do not enter the premises
but carry out their duty at the door, such an act
would constitute an infringement of the respect due
to the mission.
Ibid.
Annex 360
24
2. This Court has afforded “ ‘great weight’ ” to the
Executive Branch’s interpretation of treaties in part because
“[t]he Executive is well informed concerning the
diplomatic consequences resulting from” judicial interpretations
of such agreements. Abbott, 560 U.S. at 15
(citation omitted); see also Verlinden, 461 U.S. at 493
(“Actions against foreign sovereigns in our courts raise
sensitive issues concerning the foreign relations of the
United States.”); Kumar, 880 F.3d at 157 (“[T]he Court
properly considers the diplomatic interests of the
United States when construing the Vienna Convention
and the FSIA.”). Here, the United States has substantial
diplomatic interests in ensuring that foreign states
are served properly before they are required to appear
in U.S. courts, as well as in preserving the inviolability
of diplomatic missions under the VCDR. See Boos,
485 U.S. at 323 (recognizing the United States’ “vital
national interest in complying with international law.”).
By departing from the prevailing understanding of Article
22, the rule adopted by the court of appeals threatens
harm to the United States’ foreign relations.4
4 As discussed above, see pp. 1-2, supra, the United States also
has substantial interests in ensuring that U.S. victims of statesponsored
terrorism receive appropriate recoveries. In light of
those interests, on remand, respondents should be permitted to
correct the deficient service by requesting that the clerk of court
send “a copy of the summons and complaint and a notice of suit * * *
to the head of the ministry of foreign affairs” of the Republic of
Sudan in Khartoum, Sudan. 28 U.S.C. 1608(a)(3). Cf. Kumar,
880 F.3d at 160 (remanding to the district court “with instructions
to allow Kumar to perfect service of process in a manner consistent
with this opinion”); Barot, 785 F.3d at 29-30 (noting that “there is
no statutory deadline for service under the Foreign Sovereign
Immunities Act” and instructing the district court to “afford” the
plaintiff “the opportunity to effect service pursuant to” Section
Annex 360
25
The decision below also threatens the United States’
treatment as a litigant in courts abroad. “[T]he concept
of reciprocity * * * governs much of international law,”
Boos, 485 U.S. at 323; and “some foreign states base
their sovereign immunity decisions on reciprocity,”
Persinger v. Islamic Republic of Iran, 729 F.2d 835, 841
(D.C. Cir.), cert. denied, 469 U.S. 881 (1984). See
National City Bank v. Republic of China, 348 U.S. 356,
362 (1955) (noting that foreign sovereign immunity
“deriv[es]” in part from “reciprocal self-interest”). It is
therefore appropriate to construe the FSIA in light of
the United States’ interest in reciprocal treatment in
foreign courts. Persinger, 729 F.2d at 841 (the United
States’ interest in reciprocity “throw[s] light on congressional
intent”); see also Boos, 485 U.S. at 323 (respecting
the diplomatic immunity of foreign states
“ensures that similar protections will be accorded” to
the United States); McCulloch v. Sociedad Nacional de
Marineros de Honduras, 372 U.S. 10, 21 (1963)
(construing statute to avoid “invit[ing] retaliatory
action from other nations”).
The United States’ reciprocal interests strongly
support interpreting the FSIA not to permit service by
mail to a foreign state’s embassy in the United States.
The United States engages in extensive activities overseas
in support of its worldwide diplomatic, security,
and law enforcement missions, and it is not infrequently
sued in foreign courts. See generally Civil Div., U.S.
Dep’t of Justice, Office of Foreign Litigation [(OFL)]
(Aug. 1, 2017), https://www.justice.gov/civil/officeforeign-
litigation (“At any given time, foreign lawyers
1608(a)(3) by requesting that the clerk of court send papers “to the
‘head of the ministry of foreign affairs’ in Lusaka, Zambia”) (citation
omitted).
Annex 360
26
under OFL’s direct supervision represent the United
States in approximately 1,000 lawsuits pending in the
courts of over 100 countries.”). The State Department
and OFL have informed this Office that the United
States routinely refuses to recognize the propriety of
service through mail or personal delivery by a private
party or foreign court to a United States embassy, even
if a mail clerk has signed for the package. Instead,
when a foreign litigant or court officer purports to serve
a complaint against the United States by delivery to an
embassy, the United States’ practice is that the
embassy sends a diplomatic note to the foreign ministry
in the forum state, explaining that the United States
does not consider itself to have been served consistent
with international law and thus will not appear in the
litigation or honor any judgment that may be entered
against it. See 2 U.S. Dep’t of State, Foreign Affairs
Manual § 284.3(c) (2013). The United States has a
strong interest in ensuring that its courts afford foreign
states the same treatment that the United States contends
it is entitled to under the VCDR. See Kumar,
880 F.3d at 158.
3. The court of appeals acknowledged that in light of
the Executive Branch’s expertise, potential implications
for the United States’ foreign relations, and reciprocity
concerns, the Executive Branch’s treaty interpretation
is to be afforded “great weight.” J.A. 225 (citation
omitted). In reality, however, the court “summarily
rejected [the government’s] position.” Kumar,
880 F.3d at 159 n.11 (citation omitted); see J.A. 225.
a. The court of appeals again distinguished between
“service on an embassy or consular official,” which it
agreed “would be improper” under the VCDR, J.A. 222,
and “mailing papers to a country’s foreign ministry via
Annex 360
27
the embassy,” which it decided did not violate the Convention,
J.A. 216. In particular, the court stated, “where
the suit is not against the embassy or diplomatic agent,
but against the foreign state with service on the foreign
minister via the embassy address, we do not see how
principles of mission inviolability and diplomatic immunity
are implicated.” J.A. 182.
As the Fourth Circuit explained, that is an “artificial,
non-textual” distinction. Kumar, 880 F.3d at 159 n.11;
see id. at 157 (distinction arises from “meaningless semantic[
s]”). Contrary to the court of appeals’ suggestion,
see J.A. 182-183, a suit against an embassy is a suit
against the foreign state. See 28 U.S.C. 1603(a); El-
Hadad v. United Arab Emirates, 216 F.3d 29, 31-32
(D.C. Cir. 2000) (treating suit against foreign embassy
as suit against the state); Gray v. Permanent Mission
of the People’s Republic of the Congo to the United Nations,
443 F. Supp. 816, 820 (S.D.N.Y.) (holding that
permanent mission of foreign country to the United Nations
is a “foreign state” under the FSIA), aff’d, 580 F.3d
1044 (2d Cir. 1978). Thus, regardless of whether service
is made “on” or “via” an embassy, mailing service to the
embassy treats it as the state’s “de facto agent for service
of process,” in violation of the VCDR’s principle of
mission inviolability. Kumar, 880 F.3d at 159 n.11. Indeed,
the court of appeals’ decisions in this case demonstrate
that it treated service on an embassy and service
“via” an embassy as functionally equivalent: It considered
service to have been completed when a return receipt
was purportedly received from petitioner’s embassy,
rather than when the package ultimately made
its way “to the head of the ministry of foreign affairs of
the country concerned,” 28 U.S.C. 1608(a)(3). See J.A.
Annex 360
28
88, 177 & n.5, 210-211, 216-217; but see J.A. 225-226 (declining
to consider Sudan’s argument that “the evidence
does not support a finding that the mailing was accepted
by Sudan or delivered to the Sudanese Minister of Foreign
Affairs” because it was made “too late”).
b. The court of appeals also suggested that service
“via” petitioner’s embassy was permissible under the
VCDR because the embassy “consent[ed]” to service by
“accept[ing]” the papers. J.A. 223. That is incorrect.
The VCDR provides that “agents of [a] receiving State
may not enter [a mission], except with the consent of the
head of the mission.” VCDR art. 22(1), 23 U.S.T. 3237,
500 U.N.T.S. 106 (emphasis added). “Simple acceptance
of the certified mailing from the clerk of court [by an
embassy employee] does not demonstrate a waiver [of
the VCDR’s protections].” Kumar, 880 F.3d at 157 n.9;
cf. VCDR art. 1(a), 23 U.S.T. 3230, 500 U.N.T.S. 96 (defining
“head of the mission”); id. art. 1(b)-(h), 23 U.S.T.
3230-3231, 500 U.N.T.S. 96, 98 (defining roles of other
employees at a diplomatic mission). And no record evidence
suggests that petitioner’s ambassador to the
United States—the head of the mission—was aware
of, much less consented to receive, respondents’ service
of process. See VCDR art. 22(1), 23 U.S.T. 3237,
500 U.N.T.S. 106.
c. For similar reasons, the court of appeals was incorrect
to minimize the United States’ foreign-relations and
reciprocal-treatment concerns on the ground that “the
United States (or any other country)” could “enforc[e]
a policy of refusing to accept service via its embassies.”
J.A. 222-223. The VCDR recognizes that foreign states
have a legal right to the inviolability of their missions;
the burden is not on those states to affirmatively adopt
policies to protect that right. The VCDR addresses this
Annex 360
29
issue by permitting only the “head of the mission” to
make exceptions to the default rule of mission inviolability.
Art. 22(1), 23 U.S.T. 3237, 500 U.N.T.S. 106.
The FSIA should not be read to adopt a different
framework.
C. The FSIA’s Legislative History Confirms That Congress
Intended The Act To Bar Service By Mail To A Foreign
State’s Embassy In The United States
1. The FSIA’s legislative history underscores that
Section 1608(a)(3) cannot be satisfied by mailing service
papers to a foreign state’s embassy. In particular, the
legislative history demonstrates that Congress intended
for service under the FSIA not to violate Article 22 of
the VCDR, and for such service to be delivered abroad.
a. This Court has recognized that “one of the FSIA’s
basic objectives, as shown by its history,” was to “embod[
y] basic principles of international law long followed
both in the United States and elsewhere.” Bolivarian
Republic of Venezuela v. Helmerich & Payne
Int’l Drilling Co., 137 S. Ct. 1312, 1319 (2017); see also,
e.g., Permanent Mission of India to the United Nations
v. City of New York, 551 U.S. 193, 199 (2007) (one of the
“well-recognized * * * purposes of the FSIA” is the
“codification of international law at the time of the
FSIA’s enactment”). Consistent with that purpose, the
legislative history demonstrates that Congress rejected
proposed provisions that would have conflicted with the
VCDR. An early draft of the FSIA permitted service
on a foreign state by “registered or certified mail * * *
to the ambassador or chief of mission of the foreign
state” in the United States. S. 566, 93d Cong. 1st Sess.
sec. 1(1) [§ 1608] (1973). The State Department and Department
of Justice recommended removing that method
based on their view that it would violate Article 22 of the
Annex 360
30
VCDR, and a subsequent version of the bill eliminated
that method of service. H.R. 11315, 94th Cong., 1st Sess.
sec. 4(a) [§ 1608] (1975); see House Report 6, 26; 122 Cong.
Rec. 17,465, 17,469 (1976); Service of Legal Process by
Mail on Foreign Governments in the U.S., 71 Dep’t St.
Bull., No. 1840, at 458 (Sept. 30, 1974); see also, e.g.,
Helmerich, 137 S. Ct. at 1320 (noting the State Department’s
role in drafting the FSIA); Samantar v. Yousuf,
560 U.S. 305, 323 n.19 (2010) (same). Congress’s decision
to remove service by mail to a foreign state’s ambassador
to the United States strongly supports the
conclusion that Congress did not intend for the FSIA to
permit service “via” or in “care of” an embassy, which
is functionally equivalent. See pp. 26-28, supra; INS v.
Cardoza-Fonseca, 480 U.S. 421, 442-443 (1987) (“Few
principles of statutory construction are more compelling
than the proposition that Congress does not intend
sub silentio to enact statutory language that it has earlier
discarded in favor of other language.”) (citation omitted).
The House Report accompanying the bill that became
the FSIA further supports the view that service
under Section 1608(a)(3) must be sent to the ministry of
foreign affairs in the country concerned. The House
Report explains that some litigants had attempted to
serve foreign states by “mailing * * * a copy of the
summons and complaint to a diplomatic mission of the
foreign state.” House Report 26. The Report describes
that practice as being of “questionable validity” and states
that “Section 1608 precludes this method so as to avoid
questions of inconsistency with section 1 of article 22 of
the [VCDR].” Ibid. Thus, “[s]ervice on an embassy by
mail would be precluded under th[e] bill.” Ibid.
b. The House Report also confirms that Congress
intended for service under Section 1608(a)(3) to occur
Annex 360
31
abroad. The House Report states that the “procedure”
set forth in Section 1608(a)(3) “is based on rule 4(i)(1)(D),
F.R. Civ. P.” House Report 24. At the time of the
FSIA’s enactment, Rule 4(i) was entitled “Alternative
Provisions for Service in a Foreign Country,” and Subsection
(1)(D) provided for service upon a party in a foreign
country “by any form of mail, requiring a signed
receipt, to be addressed and dispatched by the clerk of
the court to the party to be served.” Fed. R. Civ. P. 4(i)
(1976) (emphasis added; capitalization altered). Statements
at congressional hearings on the FSIA likewise
reflect the understanding that service on a foreign state
under Section 1608(a)(3) would occur abroad. Witnesses
described Section 1608(a)(3) as providing for service by
“mail to the foreign minister at the foreign state’s seat
of government,” and as not being complete “unless a
signed receipt is received from abroad” within a specified
period. Jurisdiction of U.S. Courts in Suits Against
Foreign States: Hearings on H.R. 11315 Before the
Subcomm. on Administrative Law and Governmental
Relations of the House Comm. on the Judiciary,
94th Cong., 2d Sess. 75, 96 (1976) (emphases added)
(testimony of Michael Marks Cohen, Chairman of the
Committee on Maritime Legislation of the Maritime
Law Association of the United States, and statement of
the Committee on International Law of the Association
of the Bar of the City of New York).
2. The court of appeals disregarded the legislative
history because the House Report “fail[ed] to” recognize
what the court viewed as a distinction “between
‘[s]ervice on an embassy by mail,’ and service on a minister
[of ] foreign affairs via or care of an embassy.” J.A.
218 (citation and emphases omitted). But as discussed
Annex 360
32
above, see pp. 26-28, supra, that distinction is merely
“semantic[].” Kumar, 880 F.3d at 157.
In any event, the court of appeals misread the
legislative history. The House Report explicitly disapproved
of “attempting to commence litigation against a
foreign state” by “mailing * * * a copy of the summons
and complaint to a diplomatic mission of the foreign
state.” House Report 26 (emphasis added); see ibid.
(“Section 1608 precludes th[at] method.”). And it makes
clear that Congress instead intended for service on a
foreign state to occur abroad. See pp. 30-31, supra.
Congress thus sought to prevent parties from effecting
service by mailing process papers to a foreign state’s
embassy within the United States, regardless of whether
the papers are directed to the ambassador—which the
court of appeals agreed would violate the FSIA and the
VCDR, see J.A. 222—or to the foreign minister, as
occurred here.
Annex 360
33
CONCLUSION
The judgment of the court of appeals should be
reversed and the case should be remanded for further
proceedings.
Respectfully submitted.
JENNIFER G. NEWSTEAD
Legal Adviser
Department of State
NOEL J. FRANCISCO
Solicitor General
CHAD A. READLER
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
ERICA L. ROSS
Assistant to the Solicitor
General
SHARON SWINGLE
LEWIS S. YELIN
CASEN B. ROSS
Attorneys
AUGUST 2018
Annex 360
(1a)
APPENDIX
1. 28 U.S.C. 1602 provides:
Findings and declaration of purpose
The Congress finds that the determination by United
States courts of the claims of foreign states to immunity
from the jurisdiction of such courts would serve the interests
of justice and would protect the rights of both
foreign states and litigants in United States courts. Under
international law, states are not immune from the
jurisdiction of foreign courts insofar as their commercial
activities are concerned, and their commercial property
may be levied upon for the satisfaction of judgments
rendered against them in connection with their commercial
activities. Claims of foreign states to immunity should
henceforth be decided by courts of the United States
and of the States in conformity with the principles set
forth in this chapter.
2. 28 U.S.C. 1603 provides:
Definitions
For purposes of this chapter—
(a) A “foreign state”, except as used in section
1608 of this title, includes a political subdivision of a
foreign state or an agency or instrumentality of a foreign
state as defined in subsection (b).
(b) An “agency or instrumentality of a foreign
state” means any entity—
(1) which is a separate legal person, corporate
or otherwise, and
Annex 360
2a
(2) which is an organ of a foreign state or political
subdivision thereof, or a majority of whose
shares or other ownership interest is owned by a
foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the
United States as defined in section 1332 (c) and (e)
of this title, nor created under the laws of any
third country.
(c) The “United States” includes all territory
and waters, continental or insular, subject to the jurisdiction
of the United States.
(d) A “commercial activity” means either a regular
course of commercial conduct or a particular commercial
transaction or act. The commercial character
of an activity shall be determined by reference to the
nature of the course of conduct or particular transaction
or act, rather than by reference to its purpose.
(e) A “commercial activity carried on in the
United States by a foreign state” means commercial
activity carried on by such state and having substantial
contact with the United States.
3. 28 U.S.C. 1604 provides:
Immunity of a foreign state from jurisdiction
Subject to existing international agreements to which
the United States is a party at the time of enactment of
this Act a foreign state shall be immune from the jurisdiction
of the courts of the United States and of the
States except as provided in sections 1605 to 1607 of this
chapter.
Annex 360
3a
4. 28 U.S.C. 1608 provides:
Service; time to answer; default
(a) Service in the courts of the United States and of
the States shall be made upon a foreign state or political
subdivision of a foreign state:
(1) by delivery of a copy of the summons and
complaint in accordance with any special arrangement
for service between the plaintiff and the foreign
state or political subdivision; or
(2) if no special arrangement exists, by delivery
of a copy of the summons and complaint in accordance
with an applicable international convention on
service of judicial documents; or
(3) if service cannot be made under paragraphs
(1) or (2), by sending a copy of the summons and complaint
and a notice of suit, together with a translation
of each into the official language of the foreign state,
by any form of mail requiring a signed receipt, to be
addressed and dispatched by the clerk of the court to
the head of the ministry of foreign affairs of the foreign
state concerned, or
(4) if service cannot be made within 30 days under
paragraph (3), by sending two copies of the summons
and complaint and a notice of suit, together
with a translation of each into the official language of
the foreign state, by any form of mail requiring a
signed receipt, to be addressed and dispatched by the
clerk of the court to the Secretary of State in Washington,
District of Columbia, to the attention of the
Director of Special Consular Services—and the Secretary
shall transmit one copy of the papers through
diplomatic channels to the foreign state and shall
Annex 360
4a
send to the clerk of the court a certified copy of the
diplomatic note indicating when the papers were
transmitted.
As used in this subsection, a “notice of suit” shall mean
a notice addressed to a foreign state and in a form prescribed
by the Secretary of State by regulation.
(b) Service in the courts of the United States and of
the States shall be made upon an agency or instrumentality
of a foreign state:
(1) by delivery of a copy of the summons and
complaint in accordance with any special arrangement
for service between the plaintiff and the agency
or instrumentality; or
(2) if no special arrangement exists, by delivery
of a copy of the summons and complaint either to an
officer, a managing or general agent, or to any other
agent authorized by appointment or by law to receive
service of process in the United States; or in accordance
with an applicable international convention on
service of judicial documents; or
(3) if service cannot be made under paragraphs
(1) or (2), and if reasonably calculated to give actual
notice, by delivery of a copy of the summons and complaint,
together with a translation of each into the official
language of the foreign state—
(A) as directed by an authority of the foreign
state or political subdivision in response to a letter
rogatory or request or
(B) by any form of mail requiring a signed receipt,
to be addressed and dispatched by the clerk
of the court to the agency or instrumentality to be
served, or
Annex 360
5a
(C) as directed by order of the court consistent
with the law of the place where service is to be
made.
(c) Service shall be deemed to have been made—
(1) in the case of service under subsection (a)(4),
as of the date of transmittal indicated in the certified
copy of the diplomatic note; and
(2) in any other case under this section, as of the
date of receipt indicated in the certification, signed
and returned postal receipt, or other proof of service
applicable to the method of service employed.
(d) In any action brought in a court of the United
States or of a State, a foreign state, a political subdivision
thereof, or an agency or instrumentality of a foreign
state shall serve an answer or other responsive pleading
to the complaint within sixty days after service has been
made under this section.
(e) No judgment by default shall be entered by a
court of the United States or of a State against a foreign
state, a political subdivision thereof, or an agency or instrumentality
of a foreign state, unless the claimant establishes
his claim or right to relief by evidence satisfactory
to the court. A copy of any such default judgment
shall be sent to the foreign state or political subdivision
in the manner prescribed for service in this section.
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6a
5. Fed. R. Civ. P. 4 provides in pertinent part:
Summons
* * * * *
( j) Serving a Foreign, State, or Local Government.
(1) Foreign State. A foreign state or its political
subdivision, agency, or instrumentality must be served
in accordance with 28 U.S.C. § 1608.
(2) State or Local Government. A state, a municipal
corporation, or any other state-created governmental
organization that is subject to suit must be
served by:
(A) delivering a copy of the summons and of
the complaint to its chief executive officer; or
(B) serving a copy of each in the manner prescribed
by that state’s law for serving a summons
or like process on such a defendant.
* * * * *
(m) Time Limit for Service. If a defendant is not
served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff
—must dismiss the action without prejudice against that
defendant or order that service be made within a specified
time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an
appropriate period. This subdivision (m) does not apply
to service in a foreign country under Rule 4(f ), 4(h)(2),
or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).
* * * * *
Annex 360
IN THE SUPREME COURT OF THE UNITED STATES
No. 16-1094
REPUBLIC OF SUDAN, PETITIONER
v.
RICK HARRISON ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
MOTION OF THE UNITED STATES FOR LEAVE TO
PARTICIPATE IN ORAL ARGUMENT AS AMICUS CURIAE
AND FOR DIVIDED ARGUMENT
Pursuant to Rules 28.4 and 28.7 of the Rules of this Court,
the Solicitor General, on behalf of the United States, respectfully
moves that the United States be granted leave to participate in
the oral argument in this case as amicus curiae supporting
petitioner and that the United States be allowed ten minutes of
argument time. Petitioner has consented to the allocation of ten
minutes of its argument time to the United States.
This case concerns the proper interpretation of Subsection
(a) (3) of 28 U.S.C. 1608, which is part of the Foreign Sovereign
Immunities Act of 1976 (FSIA), 28 U.S.C. 1330, 1441 (d), 1602 et
Annex 360
2
seq. Section 1608 provides four hierarchical and exclusive means
for a litigant in the courts of the United States to serve a
foreign state. 28 U.S.C. 1608 (a) (1)- (4). Subsection (a) ( 3)
provides for "a copy of the summons and complaint and a notice of
suit * * * to be addressed and dispatched by the clerk of the
court to the head of the ministry of foreign affairs of the foreign
state concerned." 28 U.S.C. 1608 (a) (3). The question presented
in this case is whether service under Section 1608 (a) (3) may be
accomplished by requesting that the clerk of court mail the service
package to the embassy of the foreign state in the United States,
if the papers are directed to the minister of foreign affairs, or
whether Section 1608(a) (3) requires that process be mailed to the
ministry of foreign affairs in the country concerned.
The United States has filed a brief as amicus curiae
supporting petitioner, arguing that Section 1608 (a) (3) requires
that process be mailed to the ministry of foreign affairs in the
country concerned. In particular, the United States argues that
permitting service to be mailed to the foreign state's embassy in
the United States, if the papers are directed to the minister of
foreign affairs, would violate the best reading of the statute's
text and would be inconsistent with the United States' obligations
under the Vienna Convention on Diplomatic Relations, done Apr. 18,
1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, the United States'
diplomatic interests, and the legislative history of the FSIA.
Annex 360
3
The United States has a substantial interest in the resolution
of this case. Litigation against foreign states in U.S. courts
can have significant foreign affairs implications for the United
States, and can affect the reciprocal treatment of the United
States in the courts of other nations. At the Court's invitation,
the United States filed a brief as amicus curiae at the petition
stage of this case.
The United States has participated in oral argument as amicus
curiae in prior cases involving interpretation of the FSIA. E.g.,
Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (2018);
Bolivarian Republic of Venezuela v. Helmerich & Payne Int'l
Drilling Co., 137 S. Ct. 1312 (2017); OBB Personenverkehr AG v.
Sachs, 136 S. Ct. 390 (2015); Republic of Argentina v. NML Capital,
Ltd., 134 S. Ct. 2250 (2014); Samantar v. Yousuf, 560 U.S. 305
(2010) The United States' participation in oral argument is
therefore likely to be of material assistance to the Court.
Respectfully submitted.
SEPTEMBER 2018
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
Annex 360

ANNEX361

IN THE SUPREME COURT OF THE UNITED STATES
No. 16-1094
REPUBLIC OF SUDAN, PETITIONER
v.
RICK HARRISON ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
MOTION OF THE UNITED STATES FOR LEAVE TO
PARTICIPATE IN ORAL ARGUMENT AS AMICUS CURIAE
AND FOR DIVIDED ARGUMENT
Pursuant to Rules 28.4 and 28.7 of the Rules of this Court,
the Solicitor General, on behalf of the United States, respectfully
moves that the United States be granted leave to participate in
the oral argument in this case as amicus curiae supporting
petitioner and that the United States be allowed ten minutes of
argument time. Petitioner has consented to the allocation of ten
minutes of its argument time to the United States.
This case concerns the proper interpretation of Subsection
(a) (3) of 28 U.S.C. 1608, which is part of the Foreign Sovereign
Immunities Act of 1976 (FSIA), 28 U.S.C. 1330, 1441 (d), 1602 et
Annex 361
2
seq. Section 1608 provides four hierarchical and exclusive means
for a litigant in the courts of the United States to serve a
foreign state. 28 U.S.C. 1608 (a) (1)- (4). Subsection (a) ( 3)
provides for "a copy of the summons and complaint and a notice of
suit * * * to be addressed and dispatched by the clerk of the
court to the head of the ministry of foreign affairs of the foreign
state concerned." 28 U.S.C. 1608 (a) (3). The question presented
in this case is whether service under Section 1608 (a) (3) may be
accomplished by requesting that the clerk of court mail the service
package to the embassy of the foreign state in the United States,
if the papers are directed to the minister of foreign affairs, or
whether Section 1608(a) (3) requires that process be mailed to the
ministry of foreign affairs in the country concerned.
The United States has filed a brief as amicus curiae
supporting petitioner, arguing that Section 1608 (a) (3) requires
that process be mailed to the ministry of foreign affairs in the
country concerned. In particular, the United States argues that
permitting service to be mailed to the foreign state's embassy in
the United States, if the papers are directed to the minister of
foreign affairs, would violate the best reading of the statute's
text and would be inconsistent with the United States' obligations
under the Vienna Convention on Diplomatic Relations, done Apr. 18,
1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, the United States'
diplomatic interests, and the legislative history of the FSIA.
Annex 361
3
The United States has a substantial interest in the resolution
of this case. Litigation against foreign states in U.S. courts
can have significant foreign affairs implications for the United
States, and can affect the reciprocal treatment of the United
States in the courts of other nations. At the Court's invitation,
the United States filed a brief as amicus curiae at the petition
stage of this case.
The United States has participated in oral argument as amicus
curiae in prior cases involving interpretation of the FSIA. E.g.,
Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (2018);
Bolivarian Republic of Venezuela v. Helmerich & Payne Int'l
Drilling Co., 137 S. Ct. 1312 (2017); OBB Personenverkehr AG v.
Sachs, 136 S. Ct. 390 (2015); Republic of Argentina v. NML Capital,
Ltd., 134 S. Ct. 2250 (2014); Samantar v. Yousuf, 560 U.S. 305
(2010) The United States' participation in oral argument is
therefore likely to be of material assistance to the Court.
Respectfully submitted.
SEPTEMBER 2018
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
Annex 361

ANNEX362

Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 1 of 148
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------x
IN RE TERRORIST ATTACKS ON
SEPTEMBER 11, 2001
---------------x
FIONA HA VLISH, in her own right
and as Executrix of the ESTATE OF
DONALD G. HA VLISH, JR., Deceased,
RUSSA STEINER in her own right
and as Executrix of the ESTATE OF
WILLIAM R. STEINER, Deceased,
CLARA CHIRCHIRILLO, in her
own right and as Executrix of the
ESTATE OF PETER CHIRCHIRILLO,
Deceased,
TARA BANE in her own right
and as Executrix of the ESTATE OF
MICHAEL A. BANE, Deceased,
GRACE M. PARKINSON-GODSHALK
in her own right and as Administratrix of
of the ESTATE OF WILLIAM R.
GODSHALK, Deceased
ELLEN L. SARACINI, in her
own right and as Executrix of the ESTATE :
OF VICTOR J. SARACINI, Deceased
THERESANN LOSTRANGIO, in her
own right and as Executrix of the ESTATE :
OF JOSEPH LOSTRANGIO, Deceased
JUDITH REISS, in her own right
and as Administratrix of the ESTATE
OF JOSHUA SCOTT REISS, Deceased
WILLIAM COALE, in his own right
and as Administrator of the ESTATE OF
JEFFREY ALAN COALE, Deceased
PATRICIA J. PERRY in her own right
Civil Action No.
03 MDL 1570 (RCC)
CIVIL ACTION NO. 03-CV-9848 - RCC
Case Transferred from the United States
District Court for the District of Columbia
Case Number 1 :02CV00305
Annex 362
Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 2 of 148
and as Administratrix of the ESTATE OF
JOHN WILLIAM PERRY, Deceased
RALPH MAERZ, Jr., as the parent
and on behalf of the family of
NOELL MAERZ, Deceased
LINDA and MARTIN PANIK, as the
parents and on behalf of the family of
LT. JONAS MARTIN PANIK, Deceased
MARTINA LYNE-ANNA PANIK, as the
sister of LT. JONAS MARTIN PANIK,
Deceased
STEPHEN L. CARTLEDGE, as husband
of SANDRA WRIGHT CARTLEDGE,
Deceased
LOISANNE DIEHL, in her own right
and as Executrix of the ESTATE
OF MICHAEL DIEHL, Deceased
TINA GRAZIOSO, in her own right
and as Executrix of the ESTATE
OF JOHN GRAZIOSO, Deceased
JOANNE LOVETT, in her own right
and as Executrix of the ESTATE
OF BRIAN NUNEZ, Deceased
GRACE KNESKI, in her own right
and as Administratrix of the ESTATE
OF STEVEN CAFIERO, Deceased
JANET CALIA, in her own right
and as Executrix of the ESTATE
OF DOMINICK E. CALIA, Deceased
CHRISTINE PAP ASSO, in her own right
and as Executrix of the ESTATE
OF SALVATORE T. PAPASSO,
Deceased
PATRICIA MILANO, in her own right
2
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Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 3 of 148
and as Executrix of the ESTATE
OF PETER T. MILANO, Deceased
DIANE ROMERO, in her own right
and as Administratrix of the ESTATE
OF ELVIN ROMERO, Deceased
JOANNE M. RENZI, as the sibling
of VICTOR J. SARA CINI, Deceased
ANNE C. SARACINI, as the parent
of VICTOR J. SARA CINI, Deceased
CHRISTINA BANE-HAYES, as the
Sibling of MICHAEL A. BANE, Deceased:
DONALD BANE, as the parent
of MICHAEL A. BANE, Deceased
DONALD G. HA VLISH, SR., as the
parent of DONALD G. HAVLISH, JR.,
Deceased
WILLIAM HA VLISH and SUSAN
CONKLIN as the siblings
of DONALD G. HAVLISH, JR.,
Deceased
EXPEDITO C. SANTILLAN, in his
Own right and as Administrator of the
ESTATE OF MARIA THERESA
SANTILLAN, Deceased
ESTHER SANTILLAN, as the parent of
MARIA THERESA SANTILLAN,
Deceased
LIVIA CHIRCHIRILLO and
CATHERINE DEBLIECK, as the siblings:
of PETER CHIRCHIRILLO, Deceased
3
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Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 4 of 148
MICHELLE WRIGHT, as the daughter
of SANDRA WRIGHT, Deceased
ED and GLORIA RUSSIN, as the parents
of STEVEN RUSSIN, Deceased
BARRY RUSSIN, as the brother of
STEVEN RUSSIN, Deceased
LOREN ROSENTHAL, in her own right
And as Executrix of the ESTATE OF
RICHARD ROSENTHAL, Deceased
SANDRA STRAUB, in her own right
And as Executrix of the ESTATE OF
EDWARD W. STRAUB, Deceased
MARGARET MAURO, in her own right
As sister of DOROTHY MAURO,
Deceased and as Administratrix of the
ESTATE OF DOROTHY MAURO,
Deceased
ALEX ROWE, as the father of
NICHOLAS ROWE, Deceased
VINCENT A. OGNIBENE, in his own
Right as father of PHILIP PAUL
OGNIBENE, Deceased, and as the CoExecutor
of the ESTATE OF PHILIP
PAUL OGNIBENE, Deceased
LEONARD and LEONA ZEPLIN,
As the parents of MARC SCOTT ZEPLIN,:
Deceased
JOSLIN ZEPLIN, as sister of MARC
SCOTT ZEPLIN, Deceased
IVY MORENO, in her own right as mother :
Of YVETTE NICOLE MORENO,
Deceased, and as Administratrix of the
ESTATE OF YVETTE NICOLE
MORENO, Deceased
MORRIS DORF, in his own right as
4
Annex 362
Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 5 of 148
Father of STEPHEN SCOTT DORF,
Deceased, and as Executrix of the ESTATE:
OF STEPHEN SCOTT DORF, Deceased :
MICHELLE DORF, ANN MARIE DORF:
ROBERT DORF, JOSEPH DORF, and
LINDA SAMMUT as siblings of
STEPHEN SCOTT DORF, Deceased
PAUL SCHERTZER, in his own right as
Father of SCOTT SCHERTZER, Deceased:
And as Executor of the ESTATE OF
SCOTT SCHERTZER, Deceased
KRYSTYNA BORYCZEWSKI, in her
Own right as mother of MARTIN
BORYCZEWSKI, Deceased, and as the
Executrix of the ESTATE OF MARTIN
BORYCZEWSKI, Deceased
MICHAEL BORYCZEWSKI as father of :
MARTIN BORYCZEWSKI, Deceased
JULIA BORYCZEWSKI and MICHELE:
BORYCZEWSKI as sisters of MARTIN
BORYCZEWSKI, Deceased
MARIE ANN PAPROCKI, in her own
Right as sister of DENIS LAVELLE,
Deceased, and as the Executrix of the
ESTATE OF DENIS LAVELLE Deceased:
CHRISLAN FULLER MANUEL, as
Executrix of the ESTATE OF META
L. WALKER, Deceased
RONI LEVINE, in her own right, and as
Executrix of the ESTATE OF ROBERT
LEVINE, Deceased
MARIA REGINA MERWIN, in her own
Right, and as Executrix of the ESTATE
OF RONALD GAMBOA, Deceased
GERALD W. BINGHAM, as father of
5
Annex 362
Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 6 of 148
GERALD KENDALL BINGHAM a/k/a
MARK K. BINGHAM, Deceased
GEORGE N. AND ANGELA
STERGIOPOULOS, in their own right as
Parents, and as Co-Executors of the
ESTATE OF ANDREW
STERGIOPOULOS, Deceased
MAUREEN R. HALVORSON, in her own:
Right, and as Executrix of the ESTATE OF:
JAMES D. HALVORSON, Deceased
MAUREEN R. HALVORSON
As sister of WILLIAM WILSON deceased:
DOYLE RAYMOND WARD, in his own :
Right, and as Administrator of the ESTATE :
OF TIMOTHY RAYMOND WARD,
Deceased
RAMON MELENDEZ, in his own right,
And as Administrator of the ESTATE OF
MARY MELENDEZ, Deceased
FRANCES M. COFFEY, in her own right, :
And as Executrix of the ESTATE OF
DANIEL M. COFFEY, Deceased
DANIEL D. COFFEY, M.D. and
KEVIN M. COFFEY, as sons of
DANIEL M. COFFEY, Deceased
FRANCES M. COFFEY, in her own right, :
And as Administratrix of the ESTATE OF
JASON M. COFFEY, Deceased
DANIEL D. COFFEY, M.D. and
KEVIN M. COFFEY, as brothers of
JASON M. COFFEY, Deceased
JOYCE ANN RODAK, in her own right,
And as parent and natural guardian of minor
children CHELSEA NICOLE RODAK and:
6
Annex 362
Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 7 of 148
DEVON MARIE RODAK, and as the
Executrix of the ESTATE OF JOHN M.
RODAK, Deceased
JOANNE RODAK GORI, as sister of
JOHN M. RODAK, Deceased
JOHN and REGINA RODAK, as parents
Of JOHN M. RODAK, Deceased
RICHARD A. CAPRONI, in his own right :
And as Administrator of the ESTATE OF
RICHARD A. CAPRONI, Deceased
DOLORES CAPRONI, as mother of
RICHARD A. CAPRONI, Deceased
CHRISTOPHER CAPRONI, MICHAEL :
CAPRONI and LISA CAPRONI, as
Siblings of RICHARD A. CAPRONI,
Deceased
JOAN E. TINO, in her own right and as
Executrix of the ESTATE OF JENNIFER :
M. TINO, Deceased
PAMELA SCHIELE, as sister of
JENNIFER M. TINO, Deceased
CHRISTINE BARTON, in her own right
And as Administratrix of the ESTATE OF
JEANMARIE W ALLENDORF, Deceased:
HELEN ROSENTHAL, as sister of
JOSH ROSENTHAL, Deceased
ALICE CARPENETO, in her own right as :
Mother of JOYCE ANN CARPENETO,
Deceased
RONALD S. SLOAN, in his own right and :
As Executor of the ESTATE OF PAULK. :
SLOAN, Deceased
7
Annex 362
Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 8 of 148
FU MEI CHIEN HUANG, as mother of
HWEIDAR JIAN, Deceased
HUI CHIEN CHEN, HUICHUN JIAN
HUI-CHIAN JIAN, HUI-ZON JIAN, as
Siblings ofHWEIDAR JIAN, Deceased
HAOMIN JIAN, as son of HWEIDAR
JIAN, Deceased
MICHAEL LOGUIDICE, as brother of
CATHERINE LISA LOGUIDICE,
Deceased
RODNEY RATCHFORD, in his own right:
And as parent and natural guardian of
RODENY M. RATCHFORD, a minor
MARSHEE R. RATHCFORD, a minor
MIRANDA C. RATCHFORD, a minor
And as Executor of the ESTATE OF
MARSHA DIANAH RATCHFORD,
Deceased
JIN LIU, in her own right
And as parent and natural guardian of
ALAN GU, a minor
And as Executor of the ESTATE OF
LIMING GU
KATHERINE SOULAS, in her own
Right, and as Executrix of the ESTATE OF:
TIMOTHYP. SOULAS
RAYMOND ANTHONY SMITH, in his
Own right, and as Administrator of the
ESTATE OF GEORGE ERIC SMITH
KEITH A. BRADKOWSKI,
as Administrator of the
ESTATE OF JEFFREY D. COLLMAN
8
Annex 362
Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 9 of 148
DWAYNE COLLMAN, as father of
JEFFREY D. COLLMAN, Deceased
and
BRIAN COLLMAN,
CHARLES COLLMAN, and
BRENDA SORENSON, siblings of
JEFFREY D. COLLMAN, Deceased
Plaintiffs
V.
SHEIKH USAMAH BIN-MUHAMMAD
BIN-LADEN, a.k.a. OSAMA BIN-LADEN:
Last known location
Afghanistan
THE TALIBAN, a.k.a. the Islamic
Emirate of Afghanistan
an unincorporated association
Last known location
Afghanistan
MUHAMMAD OMAR, individually
Last known location
Afghanistan
AL QAEDA/ISLAMIC ARMY,
an unincorporated association
Last known location
Afghanistan
FOREIGN STATE DEFENDANTS:
THE ISLAMIC REPUBLIC OF IRAN,
c/o Permanent Mission of Iran
to the United Nations
622 Third A venue
New York, NY 10017
THE REPUBLIC OF IRAQ,
c/o The Permanent Representative
oflraq to the United Nations
9
Annex 362
Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 10 of 148
14 East 79ili Street
New York, NY 10021
or
The Iraqi Interest Section
c/o The Algerian Embassy
1801 P Street, N.W.
Washington, DC 20036
AGENCIES AND ISTRUMENTALITIES
OF THE ISLAMIC REPUBLIC OF IRAN:
AYATOLLAH ALI HOSEINIKHAMENEI,
Supreme Leader
c/o Permanent Mission of Iran
to the United Nations
622 Third A venue
New York, NY 10017
ALI AKBAR HASHEM! RAFSANJANI
Previously Identified and Served as Unidentified Terrorist 1
c/o Permanent Mission oflran
to the United Nations
622 Third A venue
New York, NY 10017
IRANIAN MINISTRY OF
INFORMATION AND SECURITY
c/o Permanent Mission of Iran
to the United Nations
622 Third A venue
New York, NY 10017
THE ISLAMIC REVOLUTIONARY
GUARD CORPS
c/o Permanent Mission of Iran
to the United Nations
622 Third A venue
New York, NY 10017
Washington, DC 20007
HEZBOLLAH,
an unincorporated association
c/o Permanent Mission of Iran
to the United Nations
622 Third A venue
10
Annex 362
Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 11 of 148
New York, NY 10017
THE IRANIAN MINISTRY
OF PETROLEUM
c/o Bijan Namdar-Zanganeh
Hafez Crossing, Taleghani A venue
Before Hafez Bridge
Tehran, Iran
THE NATIONAL IRANIAN
TANKER CORPORATION
Previously identified as Unidentified Terrorist 2
c/o Mohammed Souri, Chairman
#67 and 88; Atefi Street; Africa Ave.:
Tehran, Iran
THE NATIONAL IRANIAN
OIL CORPORATION
Previously Identified as Unidentified Terrorist 3
c/o Madhi Mir Maezzei
Chief Managing Director
Hafez Crossing, Taleghani A venue
P.O. Box 1863
Tehran, Iran
THE NATIONAL IRANIAN
GAS COMPANY
Previously Identified as Unidentified Terrorist 4
#410, Mafatteh Crossing,
Taleghani A venue
P.O. Box 6394,4533
Tehran, Iran
IRAN AIRLINES
Previously Identified as Unidentified Terrorist 5
c/o Eng. Davoud Keshavarzian
Chairman and CEO
Iran Air H.Q.
Mahrabad Airport
Tehran, Iran
THE NATIONAL IRANIAN
PETROCHEMICAL COMPANY
Previously Identified as Unidentified Terrorist 6
#46 Haft Tir Square
11
Annex 362
Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 12 of 148
Karimkhan Zand Boulevard
P.O. Box 11365-3484
Tehran, Iran
IRANIAN MINISTRY OF
ECONOMIC AFFAIRS AND FINANCE
c/o Safdar Hoseini
Sour Esrafil Street,
Bab Homayoun A venue
Tehran, Iran
IRANIAN MINISTRY OF
COMMERCE
c/o Mohammad Shariat-Madari
492 Valy-e Asr A venue
Between Taleghani Crossroad and
Valy-e Asr Square
Tehran, Iran
IRANIAN MINISTRY OF DEFENSE
AND ARMED FORCES LOGISTICS
Ali Shamkhani Dabestan Street
Seyyed Khandan Bridge
Resalat Expressway
Tehran, Iran
THE CENTRAL BANK OF THE
ISLAMIC REPUBLIC OF IRAN
Previously Identified as Unidentified Terrorist 7
c/o Ebrahim Sheibany
Governor
Miramad Boulevard, # 144
Tehran, Iran
AGENCIES AND ISTRUMENTALITIES
OF THE REPUBLIC OF IRAQ
SADDAM HUSSEIN, President
c/o The Permanent Representative
oflraq to the United Nations
14 East 79ili Street
New York, NY 10021
or
The Iraqi Interest Section
c/o The Algerian Embassy
12
Annex 362
Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 13 of 148
1801 P Street, N.W.
Washington, DC 20036
IRAQ MINISTRY OF DEFENSE
c/o The Permanent Representative
oflraq to the United Nations
14 East 79th Street
New York, NY 10021
or
The Iraqi Interest Section
c/o The Algerian Embassy
1801 P Street, N.W.
Washington, DC 20036
IRAQ MINISTRY OF FINANCE
c/o The Permanent Representative
oflraq to the United Nations
14 East 79th Street
New York, NY 10021
or
The Iraqi Interest Section
c/o The Algerian Embassy
1801 P Street, N.W.
Washington, DC 20036
IRAQ MINISTRY OF OIL
c/o The Permanent Representative
oflraq to the United Nations
14 East 79th Street
New York, NY 10021
or
The Iraqi Interest Section
c/o The Algerian Embassy
1801 P Street, N.W.
Washington, DC 20036
IRAQ INTELLIGENCE SERVICE
c/o The Permanent Representative
oflraq to the United Nations
14 East 79th Street
New York, NY 10021
or
The Iraqi Interest Section
c/o The Algerian Embassy
1801 P Street, N.W.
13
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Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 14 of 148
Washington, DC 20036
QUSAI HUSSEIN
c/o The Permanent Representative
oflraq to the United Nations
14 East 79ili Street
New York, NY 10021
or
The Iraqi Interest Section
cl o The Algerian Embassy
1801 P Street, N.W.
Washington, DC 20036
UNIDENTIFIED TERRORIST
DEFENDANTS 8-500,
Defendants
SECOND AMENDED COMPLAINT
On September 11, 2001, 3029 individuals were murdered when nineteen terrorists
caused four airliners to crash into the World Trade Center Towers in New York, the
Pentagon Building in Arlington County, Virginia and a field near the town of Shanksville,
Pennsylvania. The nineteen hijackers (hereinafter collectively referred to as the "Al
Qaeda Hijackers" or the "Hijackers") were members of a terrorist network known as "Al
Qaeda." The Al Qaeda organization, with the aid and assistance of various individuals,
organizations and governments, trained, funded and supported the hijackers. The leader
of Al Qaeda, Osama Bin Laden, has admitted his participation in and responsibility for
the September 11 attacks. Plaintiffs, through their undersigned attorneys, do hereby bring
this Second Amended Complaint seeking damages arising out of those terrorist attacks.
Plaintiffs demand judgment against defendants Osama Bin Laden, the Taliban,
14
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Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 137 of 148
torture and extrajudicial killing within the meaning of the Torture Victim Protection Act,
Pub.L. 102-256, 106 Stat. 73 (reprinted at 28 U.S.C.A. §1350 note (West 1993)).
381. In carrying out the extrajudicial torture and killings of the Decedents, the
actions of each defendant were conducted under actual or apparent authority, or under
color of law, of the foreign nations of the Islamic Emirate of Afghanistan, Iran and Iraq.
382. As a result of the defendants' violation of the Torture Victim Protection
Act, Plaintiffs suffered damages as fully set forth in the paragraphs above which are
incorporated herein by reference.
WHEREFORE, Plaintiffs demand judgment in their favor against all
defendants, jointly, severally, and/or individually, in an amount in excess of One Billion
Dollars ($1,000,000,000) plus interest, costs, and such other monetary and equitable relief
as this Honorable Court deems appropriate to prevent the defendants from ever again
committing the terrorist acts of September 11, 2001 or similar acts.
COUNT THREE
ALIEN TORT CLAIMS ACT
383. Plaintiffs incorporate herein by reference the averments contained in the
preceding paragraphs as though fully set forth at length.
384. As set forth above, the defendants, jointly and severally, caused the deaths
of each of the Decedents through and by reason of acts of international terrorism. These
terrorist activities constitute violations of the law of nations, including those international
legal norms prohibiting torture, genocide, air piracy, terrorism and mass murder.
385. As a result of the defendants' violation of the law of nations, all Plaintiffs
137
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Case 1:03-cv-09848-GBD-SN Document 214 Filed 09/07/06 Page 138 of 148
suffered damages as fully set forth in the paragraphs above which are incorporated herein
by reference.
386. Pursuant to 28 U.S.C. § 1350, the estates, survivors and heirs of Decedents
who were aliens at the time of their death are entitled to recover damages they have
sustained by reason of the defendants' actions.
WHEREFORE, Plaintiffs who are estates, survivors and heirs of alien
Decedents demand judgment in their favor against all defendants, jointly, severally,
and/or individually, in excess of One Billion Dollars ($1,000,000,000), plus interest,
costs, and such other monetary and equitable relief as this Honorable Court deems
appropriate to prevent the defendants from ever again committing the terrorist acts of
September 11, 2001 or similar acts.
COUNT FOUR
WRONGFUL DEATH
387. Plaintiffs incorporate by reference the averments in the preceding
paragraphs as though fully set forth at length.
388. Decedents are survived by family members entitled to recover damages
from all defendants for wrongful death. These family members are among the Plaintiffs
who are entitled to damages deemed as a fair and just compensation for the injuries
resulting from the deaths of the Decedents.
389. The injuries and damages suffered by the Plaintiffs by virtue of the death
the Decedents, and the consequences resulting therefrom, were proximately caused by the
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intentional and reckless acts, omissions, and other tortuous conduct of all defendants as
described herein.
390. As a direct and proximate result of the deaths of the Decedents, their heirs
have been deprived of future aid, assistance, services, comfort, and financial support.
391. As a direct and proximate result of the defendants' cowardly, barbaric and
outrageous acts of murder, the heirs of the Decedents will forever grieve their deaths.
392. As a further result of intentional and reckless acts, omissions, and other
tortuous conduct of the defendants, the Plaintiffs have been caused to expend various
sums to administer the estates of Decedents and have incurred other expenses for which
they are entitled to recover.
WHEREFORE, Plaintiffs demand judgment in their favor against all
defendants, jointly, severally, and/or individually, in an amount in excess of One Billion
Dollars ($1,000,000,000) plus interest, costs, and such other monetary and equitable relief
as this Honorable Court deems appropriate to prevent the defendants from ever again
committing the terrorist acts of September 11, 2001 or similar acts.
COUNT FIVE
SURVIVAL
393. Plaintiffs incorporate herein by reference the averments contained in the
preceding paragraphs as though fully set forth at length.
394. Plaintiffs bring this action for damages suffered by the Decedents and
caused by the defendants' conduct. As a result of the intentional and negligent acts of the
defendants as described above, the Decedents were placed in apprehension of harmful
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and offensive bodily contact (assault), suffered offensive and harmful bodily contact
(battery), suffered extreme fear, anxiety, emotional and psychological distress
(intentional/negligent infliction of emotional distress), and were mentally and physically
harmed, trapped, and falsely imprisoned (false imprisonment) prior to their deaths.
395. As a result of the defendants' murderous conduct, the Decedents suffered
damages including pain and suffering, trauma, emotional distress, loss of life and life s
pleasures, loss of earnings and earning capacity, loss of accretion to their estates and other
items of damages as fully set forth in the paragraphs above which are incorporated herein
by reference.
WHEREFORE, Plaintiffs demand judgment in their favor against all
defendants, jointly, severally, and/or individually, in an amount in excess of One Billion
Dollars ($1,000,000,000) plus interest, costs, and such other monetary and equitable relief
as this Honorable Court deems appropriate to prevent the defendants from ever again
committing the terrorist acts of September 11, 2001 or similar acts.
COUNT SIX
NEGLIGENT AND/OR INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
396. Plaintiffs incorporate herein by reference the averments contained in the
preceding paragraphs as though fully set forth at length.
397. All defendants knew that the September 11, 2001 intentional hijacking and
suicide flights would injure innocent United States citizens at their place of work, leaving
family members to grieve for their losses.
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398. The actions of the defendants in using the September 11, 2001 intentional
hijacking and suicide flights to murder the Decedents were done with a willful disregard
for the rights and lives of the Plaintiffs.
399. As a direct and proximate result of defendants' conduct, Plaintiffs have
suffered and will forever in the future suffer severe and permanent psychiatric disorders,
emotional distress and anxiety, permanent psychological distress and permanent mental
impairment causing expenses for medical care and counseling.
400. The conduct of the defendants was undertaken in an intentional manner to
kill American citizens. Their efforts culminated in the murder of the Decedents and
caused the contemporaneous and permanent emotional suffering of the families and heirs
of the Decedents.
401. The defendants, by engaging in this unlawful conduct, negligently and/or
intentionally inflicted emotional distress upon the Plaintiffs.
WHEREFORE, Plaintiffs demand judgment in their favor against all
defendants, jointly, severally, and/or individually, in an amount in excess of One Billion
Dollars ($1,000,000,000) plus interest, costs, and such other monetary and equitable relief
as this Honorable Court deems appropriate to prevent the defendants from ever again
committing the terrorist acts of September 11, 2001 or similar acts.
COUNT SEVEN
CONSPIRACY
402. Plaintiffs incorporate herein by reference the averments contained in the
preceding paragraphs as though fully set forth at length.
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403. As set forth more fully above, all defendants, known and unknown,
unlawfully, willfully and knowingly combined, conspired, confederated and agreed,
tacitly and/or expressly, to kill the Decedents and other persons within the United States.
404. As set forth above, all defendants conspired and agreed to provide material
support and resources to Al Qaeda, Bin Laden and the Hijackers in furtherance of
defendants' overall goal to kill American citizens and other persons residing in the United
States.
405. As set forth above, all defendants engaged in concerted efforts and activities
designed to attack the United States and inflict harm on U.S. citizens and property.
406. The defendants' conspiracy resulted in the September 11 terrorist attacks
that killed the Decedents.
407. As a result of the defendants' conspiracy, Plaintiffs have suffered damages
as fully set forth in the paragraphs above which are incorporated herein by reference.
WHEREFORE, Plaintiffs demand judgment in their favor against all
defendants, jointly, severally, and/or individually, in an amount in excess of One Billion
Dollars ($1,000,000,000) plus interest, costs, and such other monetary and equitable relief
as this Honorable Court deems appropriate to prevent the defendants from ever again
committing the terrorist acts of September 11, 2001 or similar acts.
COUNT EIGHT
18 U.S.C. §2333-TREBLE DAMAGES FOR U.S. NATIONALS
408. Plaintiffs incorporate herein by reference the averments contained in the
preceding paragraphs as though fully set forth at length.
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ANNEX363

Case 1:03-cv-09848-GBD-SN Document 314
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------x
In Re:
TERRORIST ATTACKS ON
SEPTEMBER 11, 2001
----------------------------------------------------------x
This Document Relates to
Havlish v. bin Laden,
03 Civ. 9848 (GBD) (FM)
FRANK MAAS, United States Magistrate Judge.
USDC SDNY
DOCUMENT
ELECTRO NI CALLY FILED
DOC#: --------
DATE FILED: July 30, 2012
REPORT AND
RECOMMENDATION
TO THE HONORABLE
GEORGE B. DANIELS
03 MDL 1570 (GBD) (FM)
The former World Trade Center site is only a few blocks from this
Courthouse. At that location, the 9/11 Memorial opened last year, and a new One World
Trade Center, known as the "Freedom Tower," is rapidly nearing completion. Sadly,
despite these and other reaffirmations of the human spirit, there remains one group of
Americans affected by the September 11th tragedy for whom it will always be difficult to
achieve closure - those whose immediate relatives lost their lives as a result of the
terrorists' acts. The plaintiffs in this multidistrict litigation include many such persons
who are seeking to recover monetary compensation from the individuals and entities that
carried out, or aided and abetted, the September 11th attacks.
On December 22, 2011, Your Honor entered a default judgment on behalf
of the plaintiffs in the Havlish action ("Plaintiffs"), one of the cases comprising this MDL
proceeding, against two groups of defendants: (a) certain sovereign defendants, including
the Islamic Republic of Iran, Ayatollah Ali Hoseini Khamenei, Hezbollah, and other
Iranian individuals and entities ("Sovereign Defendants"); and (b) certain non-sovereign
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defendants, including Osama bin Laden, the Taliban, and al Qaeda ("Non-Sovereign
Defendants") ( collectively, the "Defendants"). (ECF No. 2516). The case subsequently
was referred to me to report and recommend with respect to the Plaintiffs' damages. For
the reasons set forth below, I find that the Plaintiffs collectively should be awarded
damages in the amount of $6,048,513,805, plus prejudgment interest on their noneconomic
damages.
I. Standard of Review
In light of the Defendants' default, the Plaintiffs' well-pleaded allegations
concerning issues other than damages must be accepted as true. See Cotton v. Slone, 4
F.3d 176, 181 (2d Cir. 1993); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp.,
973 F.2d 155, 158 (2d Cir. 1992); Time Warner Cable ofN.Y.C. v. Barnes, 13 F. Supp.
2d 543, 547 (S.D.N.Y. 1998).
Additionally, although plaintiffs seeking to recover damages against
defaulting defendants must prove their claims through the submission of admissible
evidence, the Court need not hold a hearing as long as it has (a) determined the proper
rule for calculating damages, see Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d
151, 15 5 (2d Cir. 1999), and (b) the plaintiff's evidence establishes, with reasonable
certainty, the basis for the damages specified in the default judgment, see Transatlantic
Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997).
Here, because both requirements have been met, a hearing is unnecessary.
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II. Factual and Procedural Background
The Havlish action concerns fifty-nine victims of the September 11, 2001
terrorist attacks. Seventeen of the victims were killed in the South Tower of the World
Trade Center, thirty-two in the North Tower of the World Trade Center, and three in the
Pentagon in Washington, D.C. (See ECF No. 2553 (Pls.' Proposed Findings of Fact and
Conclusions of Law ("Proposed Findings")) ,r,r 159-66). Three further victims were
inside the airplane that crashed into the South Tower, including the plane's captain, who
was murdered by the hijackers; another victim was a passenger on United Airlines Flight
93, which crashed near Shanksville, Pennsylvania; and three victims were killed in the
immediate vicinity of the World Trade Center. (Id. ,r,r 165, 167-70). Forty-seven of the
plaintiffs ("Estate Plaintiffs") sue in their capacity as the legal representatives of their
decedents. Claims also are brought individually on behalf of 111 family members of the
fifty-nine victims of the attacks ("Individual Plaintiffs").
On December 22, 2011, in addition to entering a default judgment, Your
Honor issued Findings of Facts and Conclusions of Law regarding the liability of the
Sovereign Defendants.' (ECF No. 2515). In that document, Your Honor concluded that
the "Plaintiffs ha[d] established by evidence satisfactory to the Court that the [Sovereign
To obtain a default judgment in an action under the Foreign Sovereign Immunity
Act ("FSIA"), a plaintiff must demonstrate a right to relief "by evidence satisfactory to the
court," 28 U.S.C. § 1608(e), a standard that may be met "through uncontroverted factual
allegations, which are supported by ... documentary and affidavit evidence." Valore v. Islamic
Republic oflran, 700 F. Supp. 2d 52, 59 (D.D.C. 2010) (internal quotation marks omitted).
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Defendants] provided material support and resources to" the perpetrators of the
September 11th terrorist attacks, by, "inter alia, planning funding, [and]
facilitat[ing] ... the hijackers' travel and training," and providing the hijackers with
"services, money, lodging, training, expert advice or assistance, safehouses, false
documentation or identification, and/or transportation." (Id. at 50-53 ). By virtue of their
defaults, the Non-Sovereign Defendants also have admitted their role in the September
11th terrorist attacks.
Accordingly, because all questions concerning the Havlish defendants'
liability have been fully resolved, the only remaining task is the determination of the
Plaintiffs' damages.
III. Damages
A. Sovereign Defendants
Among the claims that the Plaintiffs assert against the Sovereign
Defendants in their third amended complaint (ECF No. 2259 ("Complaint" or "Compl."))
are survival, wrongful death, and solatium claims under section 1605A of the FSIA, 28
U.S.C. § 1605A ("Section 1605A"). Section 1605A creates an exception to sovereign
immunity pursuant to which a United States citizen can sue "[a] foreign state that is or
was a state sponsor of terrorism ... , and any official, employee, or agent of that foreign
state while acting within the scope of his or her office, employment, or agency," for
damages arising out of an act of terrorism sponsored by that state. See Section 1605A( c ).
Although Congress enacted Section 1605A in 2008, it applies retroactively to suits then
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pending against foreign states that had been designated as state sponsors of terrorism by
the time the suits originally were filed. See Section 1605A(2)(A)(i)(II); N at'l Defense
Auth. Act for Fiscal Year 2008, Pub. L. No. 110-181, 122 Stat. 3.
Section 1605A effected a "sea change" in suits against state sponsors of
terrorism. Read v. Islamic Republic of Iran, __ F. Supp. 2d ___ , ___ , 2012 WL 639139,
at *8 (D.D.C. Feb. 28, 2012). Previously, to recover damages against such defendants,
plaintiffs had to demonstrate their entitlement under state or foreign law. Id. Now, such
claims are subject to a "uniform federal standard." Id. (citing In re Terrorism Litig., 659
F. Supp. 2d 31, 85 (D.D.C. 2009)). Courts therefore usually determine damages under
Section 1605A by applying the legal principles found in the Restatement of Torts and
other leading treatises. Harrison v. Republic of Sudan, __ F. Supp. 2d ___ , ___ , 2012
WL 1066683, at *3 (D.D.C. Mar. 30, 2012).
In an action under Section 1605A, "damages may include economic
damages, solatium, pain and suffering, and punitive damages." Section 1605A(c)(4).
Additionally, "[i]n any such action, a foreign state shall be vicariously liable for the acts
of its officials, employees, or agents." Id. Consequently, the "estates of those who [died]
can recover economic losses stemming from wrongful death of the decedent; family
members can recover solatium for their emotional injury; and all plaintiffs can recover
punitive damages." Valore, 700 F. Supp. 2d at 83.
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1. Economic Damages
The Estate Plaintiffs seek economic damages for (a) the past and future lost
wages and benefits of each decedent; (b) the estate's loss of household services; (c) its
loss of advice, counsel, guidance, instruction, and training services; ( d) its loss of
accompaniment services; and (e) prejudgment interest. (See ECF No. 2554 (Pls.' Am.
Damages Inquest Mem. ("Pls.' Mem.")) Ex. H). To support their claims for these
damages, the Estate Plaintiffs have submitted extensive analyses by Dr. Stan V. Smith, a
forensic economist. (See Pls.' Mem. Ex. F (Dr. Smith's curriculum vitae)). Dr. Smith
calculated each decedent's lost wages and benefits by assuming that the decedent would
have worked until the age of sixty-seven and adjusting his calculations through the use of
growth and discount rates. Dr. Smith also calculated each decedent's estate's non-wagerelated
losses by determining the replacement cost of those services. Finally, Dr. Smith
calculated the prejudgment interest on these damages using the annual average of
monthly interest rates for thirty-day Treasury Bills. (See id. Ex. H).
Dr. Smith has provided detailed reports for two decedents and calculated
the economic damages for the other forty-five decedents in the same manner. Having
reviewed Dr. Smith's reports, I find that his calculations are reasonable, and yield
proposed economic damages awards comparable to those in other cases. See, e.g.,
Dammarell v. Islamic Republic oflran, 404 F. Supp. 2d 261, 310-24 (D.D.C. 2005);
Alejandre v. Republic of Cuba, 996 F. Supp. 1239, 1249 (S.D. Fla. 1997); Ferrarelli v.
United States, CV 90-4478 (JMA), 1992 WL 893461, at *19 (E.D.N.Y. Sept. 24, 1992). I
6
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therefore adopt his findings regarding lost wages, benefits, and services, and prejudgment
interest thereon, which leads to a finding that the Estate Plaintiffs' economic damages
total $394,277,884. The separate award to each individual Estate Plaintiff is set forth in
Appendix 1 to this Report and Recommendation.
2. Pain and Suffering
The Estate Plaintiffs also seek damages for their decedents' pain and
suffering. "When determining the appropriate damages for pain and suffering, [the
Court] is bound by a standard ofreasonableness." Mastrantuono v. United States, 163 F.
Supp. 2d 244,258 (S.D.N.Y. 2001) (citing Battista v. United States, 889 F. Supp. 716,
727 (S.D.N.Y. 1995)).
Relying on Pugh v. Socialist People's Libyan Arab Jamahiriya, 530 F.
Supp. 2d 216 (D.D.C. 2008), the Estate Plaintiffs seek $18 million for each decedent's
pain and suffering. (Pls.' Mem. at 10). In Pugh, a suitcase bomb on an airplane
detonated mid-flight, killing everyone on board. The court awarded the estate of each
passenger $18 million for the passenger's pain and suffering, but did not explain how it
arrived at that number, nor did it cite any cases in which there had been similar awards.
See 530 F. Supp. 2d at 266-73. In other FSIA cases, courts have made considerably
lower pain and suffering awards to the estates of victims of state-sponsored terrorism.
For example, in Stethem v. Islamic Republic oflran, 201 F. Supp. 2d 78, 89 (D.D.C.
2002), the court awarded $1.5 million to an estate for the pain and suffering of a decedent
who was tortured for fifteen hours before being shot to death. Similarly, in Eisenfeld v.
7
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Islamic Republic oflran, 172 F. Supp. 2d 1, 8 (D.D.C. 2000), the court awarded $1
million in damages for pain and suffering to the estate of a victim of a bus bombing who
had survived for several minutes before ultimately dying. See also Weinstein v. Islamic
Republic oflran, 184 F. Supp. 2d 13, 22-23 (D.D.C. 2002) ($10 million award to estate of
victim who survived for forty-nine days with limited pain medication after suffering
extensive burn and blast injuries during a terrorist bombing of a bus).
Although the specifics of each decedent's demise remain largely unknown,
the Plaintiffs have submitted the expert report of Dr. Alberto Diaz, Jr., M.D., a retired
Navy Rear Admiral, which provides a chilling account of the horrific conditions that each
of the Estate Plaintiffs' decedents likely encountered immediately before his or her death.
(See Pls.' Mem. Exs. D, E). As Dr. Diaz's report confirms, there is little doubt that many,
if not all, of the decedents in this case experienced unimaginable pain and suffering on
September 11, 2001. As Judge Baer noted in a previous case brought by two of the Estate
Plaintiffs:
The effort after a tragedy of this nature to calculate pain and
suffering is difficult at best. Unfortunately, there is no way to
bring back [the decedents] and no way to even come close to
understanding what [they] experienced during their last
moments. Under our legal system, compensation can only be
through the award of a sum of money. While always difficult
and never exact, the devastation and horror accompanying
this tragedy makes a realistic appraisal almost impossible.
Smith ex rel. Smith v. Islamic Emirate of Afghanistan, 262 F. Supp. 2d 217,233
(S.D.N.Y. 2003), amended, 2003 WL 23324214 (S.D.N.Y. May 19, 2003).
8
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Judge Baer awarded the two Smith plaintiffs $1 million and $2.5 million,
respectively, for their decedents' pain and suffering. Id. at 234, 239. Judge Baer
reasoned that a $1 million award was reasonable for the first victim, who died in the
South Tower, because there was no evidence that he survived the plane's impact, and that
a $2.5 million award was appropriate for the second victim, because there was evidence
that he had survived the initial impact and subsequently was trapped in the North Tower
for some time before his death. Id.
As Judge Baer's analysis in Smith suggests, the decedents in this case
arguably may have experienced different levels of pain and suffering dependant upon
whether they were in the North Tower (the first to be hit but the second to collapse), the
South Tower (where they may have had knowledge of the first attack but less notice that a
structural collapse was likely), the Pentagon, one of the airplanes, or on the ground. The
decedents' precise locations when the attack occured also may have affected their levels
of conscious pain and suffering. In these circumstances, calculating a precise award for
each decedent's individual pain and suffering obviously would be impossible.
Nonetheless, the Estate Plaintiffs are entitled to fair compensation for their injuries; the
awards in other FSIA cases - particularly those made by Judge Baer in Smith - suggest
that $2 million per decedent is a reasonable figure. Accordingly, I recommend that each
of the Estate Plaintiffs be awarded that amount for their decedents' pain and suffering.
The total recommended pain and suffering award is therefore $94,000,000.
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3. Solatium
Under Section 1605A, family members of the decedents also are entitled to
damages for solatium. "A claim for solatium refers to the mental anguish, bereavement,
and grief that those with a close relationship to the decedent experience as a result of the
decedent's death, as well as the harm caused by the loss of decedent's society and
comfort." Dammarell v. Islamic Republic oflran, 281 F. Supp. 2d 105, 196 (D.D.C.
2003), vacated on other grounds, 404 F. Supp. 2d 261 (D.D.C. 2005). "Acts of terrorism
are by their very definition extreme and outrageous and intended to cause the highest
degree of emotional distress." Belkin v. Islamic Republic oflran, 667 F. Supp. 2d 8, 22
(D.D.C. 2009). For that reason, in FSIA cases, courts have recognized that a solatium
claim is "'indistinguishable' from the claim of intentional infliction of emotional
distress." See, e.g., Surette v. Islamic Republic oflran, 231 F. Supp. 2d 260, 267 n.5
(D.D.C. 2002) (quoting Wagner v. Islamic Republic oflran, 172 F. Supp. 2d 128, 135
n.11 (D.D.C. 2001)).
In Estate of Heiser v. Islamic Republic oflran, 466 F. Supp. 2d 229 (D.D.C.
2006), District Judge Royce Lamberth articulated a framework for determining solatium
damages pursuant to which spouses of deceased victims each received approximately $8
million, parents each received $5 million, and siblings each received $2.5 million.
Several courts subsequently have followed the Heiser framework while acknowledging
that upward or downward departures are sometimes appropriate. See, e.g., Estate of
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Bland v. Islamic Republic oflran, 831 F. Supp. 2d 150, 156 (D.D.C. 2011); Valore, 700
F. Supp. 2d at 85.
Here, each of the Individual Plaintiffs has submitted a declaration attesting
to the traumatic effects of the loss of his or her loved one. (See Pls.' Mem. Ex. B). A
review of those submissions makes clear that all of the Individual Plaintiffs have suffered
profound agony and grief as a result of the tragic events of September 11th. Worse yet,
the Individual Plaintiffs clearly are faced with frequent reminders of the events of that
day. (M:). Considering the extraordinarily tragic circumstances surrounding the
September 11th attacks, and their indelible impact on the lives of the victims' families, I
find that it is appropriate to grant the upward departures from the Heiser framework that
the Individual Plaintiffs collectively have requested. Accordingly, I recommend that with
one exception2 the Individual Plaintiffs be awarded solatium damages as follows:
Relationship to Decedent Solatium Award
Spouse $12,500,000
Parent $8,500,000
Child $8,500,000
Sibling $4,250,000
2 The exception relates to Chrislan Fuller Manuel ("Manuel"), the niece of one of
the decedents. Typically, solatium damages are available only to the spouses, children, parents,
and siblings of decedents. See Smith, 262 F. Supp. 2d at 234. Although courts occasionally
have awarded solatium damages to more distant relatives who served functionally as immediate
family members, see, e.g., id. at 236 (grandmother who raised decedent from an early age);
Surette, 231 F. Supp. 2d at 270 (decedent's unmarried partner of over twenty years), Manuel did
not have that sort ofrelationship with her aunt. (See Pls.' Mem. Ex. B).
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If this recommendation is adopted, the 110 Individual Plaintiffs entitled to
recover damages for solatium will receive a total of $874,000,000. The separate
solatium award for each Individual Plaintiff is set forth in Appendix 2 to this Report and
Recommendation.
4. Punitive Damages
Pursuant to the FSIA, the Plaintiffs also are entitled to punitive damages.
See Section 1605A(c)(4). The Plaintiffs propose two different ways to calculate their
punitive damages. First, the Plaintiffs propose that the Court follow the reasoning
articulated in Estate of Bland, 831 F. Supp. 2d at 158. Under that rubric, the Court would
calculate punitive damages by multiplying the Plaintiffs' compensatory damages by 3.44.
(See Pls.' Mem. at 20). Alternatively, the Plaintiffs propose applying a 5.35 ratio as the
court did in Flax v. DaimlerChrysler Corp., 272 S.W.3d 521 (Tenn. 2008). (See Pls.'
Mem at 21).
In Estate of Bland, an FSIA case arising out of the bombing of the United
States Marine barracks in Beirut, the court, "relying on the Supreme Court's opinion in
Philip Morris USA v. Williams, 549 U.S. 346 (2007)," applied a 3.44 ratio, noting that
several courts previously had applied that ratio in FSIA cases. Estate of Brand, 831 F.
Supp. 2d at 158 (citing Murphy v. Islamic Republic oflran, 740 F. Supp. 2d 51, 75
(D.D.C. 2010), and Valore, 700 F. Supp. 2d at 52). In Flax, a products liability case
arising out of a car accident, the Tennessee Supreme Court upheld a punitive damages
award that was 5.35 times the victim's compensatory damages. 272 S.W.3d at 540, cert.
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denied, 129 S. Ct. 2433. In the course of approving that higher multiplier, however, the
court expressly noted that the victim's compensatory damages were not so substantial as
to render such a high ratio unconstitutional. Id. at 539.
As the court explained in Estate of Bland, the 3.44 ratio "has been
established as the standard ratio applicable to cases arising out of' terrorist attacks. 831
F. Supp. 2d at 158. Moreover, the Plaintiffs in this case are entitled to substantial
compensatory damages. Accordingly, Flax, which was decided several years before
Bland and involves dissimilar facts, does not suggest that this Court should deviate from
the established standard in FSIA cases. The Plaintiffs' compensatory damages amount to
$1,362,277,884. I therefore recommend that they be awarded punitive damages based on
a 3.44 multiplier, yielding a punitive damages total of $4,686,235,921.
5. Prejudgment Interest
Recognizing that an award of prejudgment interest is warranted when
plaintiffs are delayed in recovering compensation for non-economic injuries caused by
acts of terrorism, Magistrate Judge Facciola recently awarded such plaintiffs prejudgment
interest at the prime rate. See Baker v. Socialist People's Libyan Arab Jamahirya, 775 F.
Supp. 2d 48, 86 (D.D.C. 2011). Dr. Smith similarly has used the average prime rate
published by the Federal Reserve Bank for the period from September 11, 2001, through
the date of his report and assumed that prejudgment interest would be awarded through
January 1, 2013. (See Pls.' Mem. Ex. J). There is, however, no reason to believe that this
Report and Recommendation will be reviewed by a particular date. Accordingly, if this
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Report and Recommendation is adopted, the Clerk of the Court should simply be directed
to award prejudgment interest on the Plaintiffs' damages for solatium and pain and
suffering, which total $968,000,000, at the rate of 4.96 percent per annum for the period
from September 11, 2001, through the date that judgment is entered.
B. Non-Sovereign Defendants
Although the Plaintiffs' submissions do not discuss their claims against the
Non-Sovereign Defendants in great detail, those Defendants are liable for the same
damages as the Sovereign Defendants under traditional tort principles. 3 See Valore, 700
F. Supp. 2d at 76-80. The Non-Sovereign Defendants consequently should be held jointly
and severally liable for the damages set forth above and in the appendices to this Report
and Recommendation.4
C. Costs
The Plaintiffs also seek approximately $2 million in costs. (See Pls.' Mem.
Ex. M). Pursuant to 28 U.S.C. § 1920 and Local Civil Rule 54.l(c), only certain
expenditures may be taxed as costs. The Plaintiffs have requested an award of costs
The Plaintiffs, however, cannot recover treble damages against the NonSovereign
Defendants pursuant to the Antiterrorism Act, 18 U.S.C. § 2333, see Smith, 262 F.
Supp. 2d at 220-22, because they did not assert such a claim in their Complaint. (See Compl.
,r,r 401-21).
4 As discussed above, at least two of the Estate Plaintiffs already have been
awarded damages against some of the Non-Sovereign Defendants. See Smith, 262 F. Supp. 2d
at 240-41. To the extent that the damages awarded in this action may exceed those awarded in a
previous action, the Non-Sovereign Defendants have waived any potential res judicata defense
by failing to appear.
14
Annex 363
Case 1:03-cv-09848-GBD-SN Document 314 Filed 07/30/12 Page 15 of 19
primarily for expenses that are not recoverable. In addition, the proffered evidence is
insufficient for the Court to calculate any taxable costs that could be allowed. The
Plaintiffs' application for costs consequently should be denied without prejudice to a
renewed application.
IV. Conclusion
For the reasons set forth above, the Plaintiffs should be awarded damages
against the Sovereign and Non-Sovereign Defendants in the amount of $6,048,513,805.
Additionally, the Plaintiffs are entitled to prejudgment interest on their non-economic
compensatory damages at the rate of 4.96 percent per annum from September 11, 2001,
through the date judgment is entered.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties shall have fourteen days from the service of this Report and
Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(l) and Rule
72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a) and (d). Any
such objections shall be filed with the Clerk of the Court, with courtesy copies delivered
to the Chambers of the Honorable George B. Daniels and to the Chambers of the
undersigned at the United States Courthouse, 500 Pearl Street, New York, New York
10007, and to any opposing parties. See 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 6(a), 6(d),
72(b). Any requests for an extension of time for filing objections must be directed to
15
Annex 363
Case 1:03-cv-09848-GBD-SN Document 314 Filed 07/30/12 Page 16 of 19
Judge Daniels. The failure to file these timely objections will result in a waiver of those
objections for purposes of appeal. See 28 lJ.S.C. § 636(b)(I); Fed. R. Civ. P. 6(a), 6(d),
72(6); Thomas v. Arn, 474 U.S. 140 (1985).
Dated:
Copies to:
New York, New York
July 30, 2012
Hon. George B. Daniels
United States District Judge
All counsel via ECF
United tates Magistrate Judge
16
Annex 363
Case 1:03-cv-09848-GBD-SN Document 314 Filed 07/30/12 Page 17 of 19
ESTATE
Bane, Michael
Boryczewski, Martin
Cafiero, Steven
Caproni, Richard M.
Chirchirillo, Peter
Coale, Jeffrey
Coffey, Daniel M.
Coffey, Jason
Collman, Jeffrey
Diehl, Michael
Dorf, Stephen
Fernandez,Judy
Gamboa, Ronald
Godshalk, William
Grazioso, John
Gu, Liming
Halvorson, James
Havlish, Donald
Lavelle, Dennis
Levine, Robert
Lostrangio, Joseph
Mauro, Dorothy
Melendez, Mary
Milano, Peter T.
Appendix 1
Economic Damage Awards
ECONOMIC DAMAGES
$5,960,665
17,363,416
1,754,202
3,551,011
5,440,587
5,558,859
5,059,077
4,006,486
4,318,172
5,584,103
3,242,690
2,852,544
2,890,981
16,672,472
7,376,753
11,883,059
9,464,745
6,711,879
4,039,992
4,520,876
5,777,844
1,580,579
7,531,551
22,153,588
Annex 363
Case 1:03-cv-09848-GBD-SN Document 314 Filed 07/30/12 Page 18 of 19
Moreno, Yvette 2,360,239
Nunez, Brian 2,499,922
Ognibene, Philip 4,435,087
Papasso, Salvatore T. 6,289,680
Perry, John 4,924,240
Ratchford, Marsha 6,233,977
Reiss, Joshua 7,726,738
Rodak, John M. 24,440,747
Romero, Elvin 14,783,971
Rosenthal, Richard 7,274,204
Santillan, Maria Theresa 3,255,002
Saracini, Victor 9,593,658
Schertzer, Scott 2,792,107
Sloan, Paul K. 5,967,696
Smith, George 2,609,215
Soulas, Timothy 86,796,344
Steiner, William 6,443,814
Stergiopoulos, Andrew 5,716,259
Straub, Edward W. 16,552,703
Tino, Jennifer 2,625,577
W allendorf, Jeanmarie 1,768,803
Waller, Meta 1,200,501
Ward, Timothy 2,691,269
TOTAL $394,277,884
(See Pls.' Mem. Ex. H).
2
Annex 363
Case 1:03-cv-09848-GBD-SN Document 314 Filed 07/30/12 Page 19 of 19
RELATIONSHIP
Spouse
Parent
Child
Sibling
Total
(See Pls.' Mem. Ex. A)
Appendix 2
Solatium Damages
NUMBER OF DAMAGES
PLAINTIFFS
23 $12,500,000
41 8,500,000
10 8,500,000
36 4,250,000
110
TOTAL
$287,500,000
348,500,000
85,000,000
153,000,000
$874,000,000
Annex 363

ANNEX364

D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95 (2006)
462 F.3d 95
United States Court of Appeals,
Second Circuit.
D.H. BLAIR & CO., INC., and Kenton E.
Wood, Individually and as Director and
Chief Executive Officer of D.H. Blair &
Co., Inc., Plaintiffs-Appellees,
v.
Judit GOTIDIENER, Ernest Gottdiener,
Ervin Tausky and Suan Investments,
Defendants-Appellants,
D.H. Blair Investment Banking Corp., J.
Morton Davis and Alfred Palagonia,
Defendants.
Docket No. 04-3260.
I
Argued: May 19, 2005.
I
Decided: Sept. 5, 2006.
Synopsis
Background: Broker filed state court petition to confirm
in part and vacate in part the award of an arbitration panel
on investors' claims that broker violated federal securities
and other laws. Investors removed matter to federal court.
The United States District Court for the Southern District
of New York, Richard Owen, J., 2004 WL 1057626,
entered default judgment confirming award in part, but
vacating portion adding prejudgment interest to punitive
damages. Investors appealed.
Holdings: The Court of Appeals, Winter, Circuit Judge,
held that:
investors consented to district court's jurisdiction;
venue was proper in district court;
district court did not abuse its discretion by refusing to
transfer the case;
should have been treated as a motion;
after removing petition, investors should have responded
in some fashion;
default judgment was inappropriate, and district court
should have treated broker's motion to confirm as
unopposed summary judgment motion, and the motion to
vacate as opposed;
arbitrators' award of prejudgment interest to investors on
punitive damages was not manifestly contrary to law; and
confirmation of entire arbitral award was appropriate.
Vacated and remanded.
Attorneys and Law Firms
*99 Jay R. Fialkoff, Moses & Singer LLP, New York,
New York (Jayson D. Glassman, of counsel), for
Plaintiffs-Appellees.
Mark A. Tepper, Fort Lauderdale, Florida, for
Defendants-Appellants.
*100 Before: WINTER and KATZMANN, Circuit
Judges, and MURTHA,'District Judge.
Opinion
WINTER, Circuit Judge.
Judit and Ernest Gottdiener, Ervin Tausky, and Suan
Investments (collectively "the Investors") appeal from a
grant of default judgment to D.H. Blair & Co., Inc.
("D.H.Blair") and Kenton E. Wood (collectively
"Broker"). The default judgment granted Broker's motion
to confirm in part and vacate in part the award of an
arbitration panel.
The Investors argue, inter alia, that the Southern District
of New York ("S.D.N.Y.") lacked personal jurisdiction
over them and was an improper venue. The Investors also
argue that the district court abused its discretion by failing
to vacate the default judgment. These arguments are
directed to restoring the part of the award vacated in the
present actions and to breathing life into their own motion
to vacate the arbitral award, which was filed in the
Southern District of Florida ("S.D.Fla.") and transferred
to the S.D.N.Y. after entry of the default judgment.
Although personal jurisdiction existed in the S.D.N.Y.
and there was proper venue, we vacate so much of the
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D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95 (2006)
default judgment as vacated parts of the arbitration award.
We confirm the award because it was not manifestly
contrary to law, after finding that the Investors waived
their arguments regarding Florida law by not raising them
in the S.D.N.Y. action.
BACKGROUND
a) The Arbitration
The Investors maintained securities trading accounts with
Broker. Each of the Investors signed separate account
agreements and opened trading accounts with D.H. Blair
in New York. Each agreement specified that disputes
between the Investors and Broker be resolved by
arbitration and that:
The award of the arbitrators, or the majority of them,
shall be final, and judgment upon the award rendered
may be entered in any court, state or federal, having
jurisdiction. I consent to the jurisdiction of the state and
federal courts in the City of New York for the purpose
of compelling arbitration, staying litigation pending
arbitration, and enforcing any award of arbitrators.
On May 22, 2000, Investors filed a statement of claim
against Broker with the National Association of Securities
Dealers ("NASD") in New York City alleging violations
of the federal securities and other laws. When filing their
claim, the Investors signed a "NASD Regulation
Arbitration Uniform Submission Agreement," which
provided that:
to Florida, and on June 25, 2002, the Investors amended
their claim to assert violations of the Florida Blue Sky
Law. The arbitration took place before a panel of three
arbitrators in September and October 2002 in the NASD's
Boca Raton, Florida offices.
At the commencement of the arbitration, the Investors
initially sought "1) compensatory damages ... ; 2) interest;
3) return of commissions ... ; 4) punitive damages ... ;
4)[sic] costs; and 5) attorneys' fees," but in their
"post-hearing submissions," which were considered by
the arbitrators before rendering a decision, the Investors
requested slightly different relief, including "1)
compensatory damages ... ; 2) punitive damages ... ; 4)
costs ... ; 5) pre-judgment interest; and 6) a finding that
each respondent violated Section 517.301, Florida
Statutes." The differences in the relief sought are
monetarily significant in that the compensatory and
punitive damages requested were higher and the request
for "prejudgment interest" followed the request for
compensatory and punitive damages and costs, implying
that prejudgment interest should apply to each.
On January 29, 2003, the arbitrators awarded $255,000 in
compensatory damages and $450,000 in punitive damages
to the Investors. Both awards included prejudgment
interest accruing from May 22, 1995, "until the date the
Award is paid in full." The Investors moved to have the
arbitrators recalculate the compensatory damages to
include damages required under Florida law, and Broker
filed a response defending the award. On March 12, 2003,
the arbitration panel denied the motion.
b) Broker's New York Petition
Broker filed a Notice of Petition and Petition to Confirm
The undersigned parties further agree to abide by and in Part and Vacate in Part an Arbitration Award ("New
perform any award(s) rendered pursuant to this York Petition") in the Supreme Court of New York
Submission Agreement and further agree that a County. The Petition had a return date of April 29, 2003,
judgment and any interest due thereon, may be entered and stated that, as allowed by Section 403(b) of the New
upon such award(s) and, for these purposes, the York C.P.L.R., answering papers had to be served on the
undersigned parties hereby voluntarily consent to movant seven days before that date. The Investors were
submit to the jurisdiction of any court of competent served with these documents on April 11, 2003. In the
jurisdiction which may properly enter such judgment. New York Petition, Broker argued that the award should
On December 19, 2000, the Investors amended their be confirmed, except for the portion that awarded
claims to assert violations of the New Jersey Blue Sky prejudgment interest on punitive damages. Broker
Law, contending that they were New Jersey residents. asserted that this part of the award was in manifest
Less than three weeks later, on January 5, *101 2001, the disregard of the law and contrary to public policy. On
Investors, in a collective change of mind, asserted that April 25, 2003, the Investors removed the New York
they were Florida residents during their entire relationship Petition to the S.D.N.Y. with an explicit reservation of all
with Broker and requested that the matter be transferred rights and defenses, "including but not limited to all rights
to a NASD office in Florida. The dispute was transferred and defenses directed to the inadequacy and impropriety
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D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95 (2006)
of service of process and personal jurisdiction." The
Investors asserted that they had "not submitted to the
Jurisdiction of the state court in New York and further
believe[d] that neither the state court in New York, nor
the [S.D.N.Y. had] personal jurisdiction over them." After
removal, the Investors took no further action on the New
York Petition until the entry of a default judgment as
described infra.
On June 4, 2003, Broker sought and received a Clerk's
Certificate of default based on the Investors' failure to
respond to the New York Petition, relying upon
noncompliance with Rule 81(c), which states in relevant
part that "[i]n a removed action in which the defendant
has not answered, the defendant shall answer or present
the other defenses or objections available under these
rules ... within 5 days after the filing of the petition for
*102 removal." Fed.R.Civ.P. 8l(c). Broker then moved in
the district court for entry of default judgment under Rule
55(b)(2) on June 5, 2003. On June 17, 2003, the Investors
filed an Opposition to Entry of Default Judgment, Cross
Motion to Vacate Default, and Cross Motion to Dismiss
or Transfer. In contesting the entry of default against
them, the Investors argued that Broker's New York
Petition was a motion, not a complaint or pleading; as
such, default was improper because the Rules do not
provide for entry of default judgment on a motion.
Moreover, the Investors asserted that the New York
Petition was incomplete as it lacked a memorandum of
law. They also claimed that they had a meritorious
defense in that Broker had never called the rule against
prejudgment interest on punitive damages to the attention
of the arbitrators. Finally, the Investors sought either a
dismissal of the New York Petition for lack of personal
jurisdiction and improper venue, arguing that the "balance
of convenience plainly favors Florida," or a transfer to the
S.D.Fla., where there was a pending, related action
described below.
c) Investors' Florida Petition
While the Investors did not respond directly to the New
York Petition after they removed it to the S.D.N.Y., on
April 29, 2003, they filed their own Petition to Partially
Vacate/Confirm Arbitration A ward and to Determine
Prejudgment Interest, Attorney's Fees and for Other
Relief ("Florida Petition") in a Florida state court. The
Florida Petition asked the court to vacate the
compensatory damages portion of the arbitration award as
being in manifest disregard of the law because the
arbitrators specifically found a violation of Fla. Stat. ch.
517.301 but failed to award the full statutory damages as
directed by Fla. Stat. ch. 517 .21 1. The Florida Petition
requested confirmation of the remainder of the award and
the calculation of attorneys' fees, which had been
deferred by the arbitrators.
On May 30, 2003, Broker removed the Florida Petition to
the S.D. Fla. and filed an answer to it on June 6, 2003. On
July 11, 2003, Broker moved to stay the Florida
proceedings until the district court in the S.D.N.Y. ruled
on the first-filed New York Petition or, in the alternative,
to transfer venue of the Florida action to the S.D.N.Y. On
August 29, 2003, the district court in the S.D.Fla.
transferred the Florida Petition to the S.D.N.Y.
d) Judgment on the New York Petition
On August 20, 2003, before the transfer of the Florida
Petition, Judge Owen granted a default judgment in the
S.D.N.Y., confirming the award in part but vacating the
portion adding prejudgment interest to the punitive
damages. After holding that it had personal jurisdiction
over the Investors, the district court held that the
certificate of default was properly entered per Rule 81(c)
because the New York Petition complied with state
procedural rules, and a federal court takes a removed
action in the posture in which it receives it. Therefore, the
Investors had a duty to answer the New York Petition and
could not ignore it once they removed it to federal court.
Moreover, the district court found that there was no good
cause to set aside the entry of default under Rule 55(c)
because the Investors had not presented a meritorious
defense to Broker's claim that the award of prejudgment
interest on punitive damages was made in manifest
disregard of the law. Finally, the district court denied the
motion to transfer venue to Florida because the action was
first filed in New York, there were no special
circumstances, and many of the events underlying the
action occurred in New York.
*103 On September 2, 2003, the Investors filed a Rule
59(e) Motion to Alter or Amend the default judgment.
The Investors claimed a due process violation in that the
default judgment effectively disposed of the Florida
Petition without addressing the merits. They also
contended that the district court erred in setting aside the
prejudgment interest on punitive damages. The district
court denied the motion on May 7, 2004.
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D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95 (2006)
DISCUSSION
a) Personal Jurisdiction
We first address the Investors' claim that the S.D.N.Y.
lacked personal jurisdiction over them. "We review
district court decisions on personal jurisdiction for clear
error on factual holdings and de novo on legal
conclusions." Mario Valente Collezioni, Ltd. v.
Confezioni Semeraro Paolo, S.R.L., 264 F.3d 32, 36 (2d
Cir.2001) (citing U.S. Titan, Inc. v. Guangzhou Zhen Hua
Shipping Co., 241 F.3d 135, 151 (2d Cir.2001)). We hold
that the district court properly exercised personal
jurisdiction over the parties for two reasons. First, the
Investors consented to personal jurisdiction in New York.
Second, even absent consent, the Investors transacted
business in and had sufficient contacts with New York to
allow New York courts to exercise personal jurisdiction
over them.
1. Consent
Parties can consent to personal jurisdiction through
forum-selection clauses in contractual agreements. See
Nat'l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311,
315-16, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964) ("And it is
settled ... that parties to a contract may agree in advance
to submit to the jurisdiction of a given court .... "); 4
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1064, at 344 (3d ed.2002).
Here, the Investors consented to jurisdiction in the
S.D.N.Y. when they executed their "Cash Account
Agreements" with Broker. These Agreements contained a
forum-selection clause explicitly stating that the Investors
"consent to the jurisdiction of the state and federal courts
in the City of New York for the purpose of ... enforcing
any award of arbitrators."
While forum-selection clauses are regularly enforced,
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111
S.Ct. 1522, 113 L.Ed.2d 622 (1991), several conditions
must be met. A court must first determine that the
existence of the clause was reasonably communicated to
the parties. See Effron v. Sun Line Cruises, Inc., 67 F.3d
7, 9 (2d Cir.1995). The Investors do not claim an
unawareness of the jurisdictional consent clause; it was
plainly printed on the Cash Account Agreements. Second,
a forum-selection clause will be upheld unless "the clause
was obtained through fraud or overreaching." Jones v.
Weibrecht, 901 F.2d 17, 18 (2d Cir.1990) (citing The
Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct.
1907, 32 L.Ed.2d 513 (1972)). The Investors make no
claim that their consent to the Cash Account Agreements
was procured by fraud or overreaching.
Finally, unless it is clearly shown that "enforcement
would be unreasonable and unjust," id., forum-selection
clauses will be enforced. It is on this ground that the
Investors argue the Cash Account Agreement clause
should not be enforced. The Investors claim that because
the Cash Account Agreements limit New York courts'
jurisdiction to "enforcing any award of arbitrators"
(emphasis supplied), that they did not consent to
jurisdiction in New York to vacate any part of the award
*104 and that any reading otherwise is unreasonable and
unjust.
We disagree. The Cash Account Agreements were an
agreement to jurisdiction in the New York courts for both
confirmation and vacatur proceedings. As such, the
enforcement of the jurisdictional consent clause is neither
unjust nor unreasonable. The purpose of the clause was to
consent to New York jurisdiction for all
arbitration-related proceedings, including "compelling
arbitration, staying litigation pending arbitration, and
enforcing any award of arbitrators." The use of the word
"enforce" rather than the word "confirm" is significant.
To enforce is "[t]o give force or effect to." Black's Law
Dictionary (8th ed.2004). Because "[a]rbitration awards
are not self-enforcing," they must be given force and
effect by being converted to judicial orders by courts;
these orders can confirm and/or vacate the award, either
in whole or in part. Hoeft v. MVL Group, Inc., 343 F.3d
57, 63 (2d Cir.2003). Here, Broker petitioned the court to
confirm in part and vacate in part the arbitration award.
That request simply sought to give effect to the arbitration
award. The partial vacatur of the award sought by Broker
does not alter the nature of the action, which we believe is
properly considered to involve "enforcing" the arbitration
award.
Furthermore, it is irrational to consent to jurisdiction in a
court for purposes of confirming an award but not for
purposes of vacating all or part of it. A party opposing
confirmation of an award may rightly respond by
asserting grounds for partial or whole vacatur; the right to
do so cannot rationally be trnncated by a personal
jurisdiction clause permitting only the enforcement of
arbitration awards. If we were to accept the Investors'
interpretation, applications to confirm arbitration awards
would have to be litigated separately from any application
to vacate the award, even if only a partial vacating is
sought. We cannot attribute such an irrational and wildly
inefficient meaning to the clause.
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Annex 364
D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95 (2006)
We hold, therefore, that the Investors consented to the
jurisdiction of the state and federal courts of New York.
2. The Investors Transacted Business in New York
Even absent consent, the S.D.N.Y. still had personal
jurisdiction over the Investors. The Investors agree that
subject matter jurisdiction in the S.D.N.Y. is based on
diversity of citizenship. In diversity cases, the issue of
personal jurisdiction is governed by the law of the forum
state, here, New York's Civil Practice Law and Rules
("N.Y.C.P.L.R.") section 302, New York's long-arm
statute, see Agency Rent A Car Sys., Inc. v. Grand Rent A
Car Corp., 98 F.3d 25, 29 (2d Cir.1996), so long as the
district court's exercise of jurisdiction comports with the
requirements of due process. See Metropolitan Life Ins.
Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d
Cir.1996).
N.Y. C.P.L.R. § 302(a)(l) permits a court to exercise
personal jurisdiction over an out-of-state party if that
party "transacts any business within the state" and if the
claim arises from these business contacts. See CutCo
Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986).
To meet the transacting business element under N.Y.
C.P.L.R. § 302(a)(l), it must be shown that a party "
'purposely availed [himself] of the privilege of
conducting activities within New York and thereby
invoked the benefits and protections of its laws ... .' "
Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez,
171 F.3d 779, 787 (2d Cir.1999) (quoting *105
Parke-Bernet Galleries v. Franklyn, 26 N.Y.2d 13, 308
N.Y.S.2d 337, 256 N.E.2d 506, 509 (1970)) (alterations in
original). "To determine whether a party has 'transacted
business' in New York, courts must look at the totality of
circumstances concerning the party's interactions with,
and activities within, the state." Id.
There are sufficient business contacts to support personal
jurisdiction over the Investors under New York's
long-arm statute. The Investors entered into a brokerage
account agreement with Broker and executed numerous
stock trades through Broker's New York offices on
various New York exchanges. See, e.g., Credit Lyonnais
Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 154 (2d
Cir.1999) (holding that personal jurisdiction was proper
under N.Y. C.P.L.R. § 302(a)(l) based on defendants'
active account with plaintiff security broker from which a
series of transactions were made that formed the basis of
the lawsuit). Furthermore, the Investors' contacts with
New York provided fair warning of the possibility of
being subject to the jurisdiction of New York. See
Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 527
N.Y.S.2d 195, 522 N.E.2d 40, 43 (1988).
To meet the "arising out of' requirement of N.Y.
C.P.L.R. § 302(a), there must be "a substantial nexus"
between the transaction of business and the claim. Agency
Rent A Car, 98 F.3d at 31; McGowan v. Smith, 52 N.Y.2d
268, 437 N.Y.S.2d 643, 419 N.E.2d 321, 323 (1981). The
action in the S.D.N.Y. arose out of the arbitration award,
which resolved the Investors' claims against Broker for
fraudulently and negligently handling the Investors'
investment accounts. These accounts were located and
managed in New York. Thus, there is a sufficient nexus
between the transaction of the business and the claim to
comply with the requirements of N.Y. C.P.L.R. § 302(a).
Finally, the constitutional requirements of personal
jurisdiction are satisfied because application of N.Y.
C.P.L.R. § 302(a) meets due process requirements. See
United States v. Montreal Trust Co., 358 F.2d 239, 242
(2d Cir.1966).
b) Venue
The Investors also argue that the district court erred in
denying their motion to transfer venue to the S.D. Fla. We
review a denial of a motion to transfer venue for abuse of
discretion. A. Olinick & Sons v. Dempster Bros., Inc., 365
F.2d 439, 444 (2d Cir.1966).
We find that venue was proper in the S.D.N.Y. As
discussed above, the Cash Account Agreements signed by
the Investors specifically designate New York state and
federal courts as proper fora to contest or confirm awards.
Section 9 of the Federal Arbitration Act ("FAA") states
that venue is appropriate in any jurisdiction to which the
parties have agreed. 9 U.S.C. § 9. As discussed, the Cash
Account Agreements make venue appropriate in the
S.D.N.Y.
Even without the forum-selection clauses in the Cash
Account Agreements, venue in the S.D.N.Y. would be
appropriate. In Cortez Byrd Chips, Inc. v. Bill Harbert
Const. Co., the Supreme Court held that the FAA's venue
provision must be read permissively to allow a motion to
confirm, vacate, or modify an arbitration award either
where the award was made or in any district proper under
the general venue statute, 28 U.S.C. § 1391. 529 U.S. 193,
195, 204, 120 S.Ct. 1331, 146 L.Ed.2d 171 (2000). As
this matter was before the district court based on diversity
jurisdiction under 28 U.S.C. § 1332, the applicable venue
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Annex 364
D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95 (2006)
statute provides that:
[a] civil action wherein jurisdiction is founded only on
diversity of citizenship *106 may, except as otherwise
provided by law, be brought only in (1) a judicial
district where any defendant resides, if all defendants
reside in the same State, (2) a judicial district in which
a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property
that is the subject of the action is situated, or (3) a
judicial district in which any defendant is subject to
personal jurisdiction at the time the action is
commenced, if there is no district in which the action
may otherwise be brought.
28 U.S.C. 1391(a).
For present purposes, Section 139l(a)(2) is dispositive.
"[A] substantial part of the events or omissions giving rise
to the claim occurred" in the S.D.N.Y. Under Cortez, with
regard to enforcement of arbitration awards, the "events
giving rise to the claim" are those events giving rise to the
claim resolved in the arbitration, not just the arbitration
proceeding itself. Cortez, 529 U.S. at 198, 120 S.Ct. 1331.
The fraud and manipulation alleged by the Investors
involved conduct by Broker relating to securities traded
on the New York exchanges or underwritten by Broker
itself ("house stocks"), and the alleged breaches of
fiduciary duties and negligent supervision arose out of
Broker's conduct in New York. Thus, venue in the
S.D.N.Y. was appropriate.
Although venue would also have been proper in Florida,
the district court in the S.D.N.Y. did not abuse its
discretion by refusing to transfer the case. See Bates v. C
& S Adjusters, Inc., 980 F.2d 865, 867 (2d Cir.1992)
(noting that the venue statute does not require the district
court to determine the best venue, only a suitable one).
Broker filed its New York Petition before the Investors
filed their Florida Petition. As such, the first-filed rule
weighs in favor of the S.D.N.Y. action. "[W]here there
are two competing lawsuits, the first suit should have
priority, absent the showing of balance of convenience or
special circumstances giving priority to the second." First
City Nat'[ Bank & Trust v. Simmons, 878 F.2d 76, 79 (2d
Cir.1989) (internal quotations, citation, and alterations
omitted).
The Investors claim that Broker commenced this action
through an improper anticipatory filing during settlement
talks and that this constitutes special circumstances
sufficient to preclude application of the first-filed rule.
See Ontel Prods., Inc. v. Project Strategies Corp., 899
F.Supp. 1144, 1150 (S.D.N.Y.1995). However, even
assuming that the claimed circumstances are special, the
only evidence of settlement discussions-an April 7,
2003, fax rejecting a settlement offer but stating that
"there may be some basis to conclude a
settlement"---does not show active settlement discussions
with the Investors. Moreover, Broker filed its New York
Petition in the face of a quickly approaching deadline,
after which it would not have had the right to contest the
arbitration award at all. See 9 U.S.C. § 12 ("Notice of a
motion to vacate, modify, or correct an award must be
served upon the adverse party or his attorney within three
months after the award is filed or delivered."). With the
deadline looming, the Investors could not have been
surprised by Broker's filing.
Finally, the Investors have not satisfied their burden
under 28 U.S.C. § 1404(a) by showing that transfer was
warranted "for the convenience of the parties and
witnesses, in the interest of justice." District courts have
broad discretion in making determinations of convenience
under Section 1404(a) and notions of convenience and
fairness are considered on a case-by-case basis. In re
Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir.1992).
Some of the factors a district court is to consider are, inter
alia: "(1) the *107 plaintiff's choice of forum, (2) the
convenience of witnesses, (3) the location of relevant
documents and relative ease of access to sources of proof,
(4) the convenience of parties, (5) the locus of operative
facts, (6) the availability of process to compel the
attendance of unwilling witnesses, [and] (7) the relative
means of the parties." Albert Fadem Trust v. Duke Energy
Corp., 214 F.Supp.2d 341,343 (S.D.N.Y.2002). Applying
these factors, the district court was well within its
discretion in denying the Investors' requested venue
transfer. First, Broker chose New York as its forum, a
decision that is given great weight. Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 70 L.Ed.2d 419
(1981). Second, New York is a convenient forum for all
the parties: the Investors have homes in New Jersey and
have at times claimed to be New Jersey residents; Broker
is located in New York. Finally, documents and other
evidence regarding the arbitral award are freely available
in New York. Thus, the Investors cannot convincingly
argue that New York is an inconvenient forum. 1
c) Default Judgment
The Investors advance several arguments as to why the
district court's entry of default judgment should be set
aside. In considering these, we review the district court's
decision for abuse of discretion. Pecarsky v.
Galaxiworld.com Ltd., 249 F.3d 167, 171 (2d Cir.2001)
(quotation marks and citation omitted).
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D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95 (2006)
1. The Investors' Obligation to Respond
The Investors argue that a default judgment was
inappropriate because they had no obligation to respond
to the removed New York Petition. Their position is that
the Petition constituted a motion and that Fed.R.Civ.P.
55(a) and 81(c) apply only to removed actions begun by a
complaint and not to motions. The Investors also note that
the district court never ordered them to respond to the
New York Petition and never held a status conference to
set a briefing schedule. They further note that Broker
failed to comply with Local Rule 7 .1 by not including a
memorandum of law. We agree that the removed New
York Petition should have been treated as a motion but
disagree that the Investors had no obligation to respond.
Rule 55(a) provides that "[ w ]hen a party against whom a
judgment for affirmative relief is sought has failed to
plead or otherwise defend as provided by these rules and
that fact is made to appear by affidavit or otherwise, the
clerk shall enter the party's default." Rule 55 "tracks the
ancient common law axiom that a default is an admission
of all well-pleaded allegations against the defaulting
party." Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373
F.3d 241, 246 (2d Cir.2004). Like all general provisions
of the Federal Rules, Rule 55 is meant to apply to "civil
actions," Fed.R.Civ.P. 2, where only the first step has
been taken-i.e., the filing of a complaint-and the court
thus has only allegations and no evidence before it.
We agree with the Investors that Rule 55 does not
operate well in the context of a motion to confirm or
vacate an arbitration award. See, e.g., N.Y. Typographical
*108 Union No. 6 v. AA Job Printing, 622 F.Supp. 566,
567 (S.D.N.Y.1985) (citing Traguth v. Zuck, 710 F.2d 90,
94 (2d Cir.1983)). As the very name implies, they are
motions in an ongoing proceeding rather than a complaint
initiating a plenary action. 9 U.S.C. § 6 ("Any application
to the court hereunder shall be made and heard in the
manner provided by law for the making and hearing of
motions, except as otherwise herein expressly
provided."); Productos Mercantiles E lndustriales, S.A. v.
Faberge USA, Inc., 23 F.3d 41, 46 (2d Cir.1994) (noting
that a district court "properly treated [a petition to the
court for modification of an arbitration award] as a
motion in accordance with the express provisions of the
FAA").
Rule 81(c) also appears to speak only to actions begun by
service of a complaint. Moreover, Rule 81(a)(3)
recognizes that the Federal Arbitration Act may govern
procedures relating to arbitral awards, and the provisions
of that Act dictate the treating of the removed New York
Petition as a motion.
However, treating the Petition as a motion does not lead
to the conclusion that the Investors could simply await
some initiative by the Broker or the court.2 Removed
proceedings arrive in federal court in the procedural
posture they had in state court. Sun Forest Corp. v. Shvili,
152 F.Supp.2d 367, 387 (S.D.N.Y.2001) ("It is well
established that the district court 'takes the [removed]
action in the posture in which it existed when it is
removed from a state's court jurisdiction and must give
effect to all actions and procedures accomplished in a
state court prior to removal.' ") (quoting Miller v. Steloff,
686 F.Supp. 91, 93 (S.D.N.Y.1988)). The New York
Petition contained a return date and, as allowed by
Section 403(b) of the New York C.P.L.R., a demand for
service of the response seven days before the return date.
N.Y.C.P.L.R. § 403(b) ("An answer shall be served at
least seven days before [the time of hearing specified in
the notice of petition] if a notice of petition served at least
twelve days before such time so demands .... "). The
Investors removed the Petition after the due date for the
response but before the return date. When the New York
Petition arrived in federal court, its posture was
unchanged: a motion with a return date. Sun Forest Corp.,
152 F.Supp.2d at 387. That, indeed, is the logical outcome
of the Investors' insistence that the Petition is a motion
and not a complaint implicating Rule 55. The Investors,
therefore, should have responded in some fashion, e.g., by
seeking an extension, arguing the merits, raising
jurisdictional or venue objections, etc. We trust that
parties faced with this or similar situations in *109 the
future will take counsel from our remarks.
But, given the prior dearth of caselaw on the treatment of
removed petitions to confirm or vacate arbitration awards,
the Investors are entitled to some slack. Nevertheless,
whatever confusion existed as to the need to address the
merits was dispelled by the clerk's entry of default, a
concentration-focusing event that calls for a party to lay
all its cards on the table. Indeed, a meritorious claim or
defense is always relevant to a motion seeking avoidance
or vacatur of a default. See Pecarsky, 249 F.3d at 171
("When deciding whether to relieve a party from default
or default judgment, we consider the willfulness of the
default, the existence of a meritorious defense, and the
level of prejudice that the non-defaulting party may suffer
should relief be granted."). Therefore, we believe that all
arguments going to the merits of confirming or vacating
the award should have been raised in the Investors'
motion to vacate the clerk's entry of default. However,
that motion was accompanied by cross motions to dismiss
or transfer and focused almost exclusively on why the
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New York Petition should not be decided by the S.D.N.Y.
The Investors' memorandum of law did note the
relevance of the merits to the default issues and argued,
although briefly, that, because Broker had never informed
the arbitrators of the impropriety of prejudgment interest
on punitive damages, the award of such interest did not
taint the award. Although the Investors' papers noted the
existence of their Florida Petition to vacate the award,
they failed at any time to inform the S.D.N.Y. of their
view that Florida law required an increase in the damages.
While this issue was briefed in their post-judgment Rule
59(e) motion, we believe that, given the ample notice of
the peril of treating the S.D.N.Y. proceeding as one that
would soon go away, this was an untimely raising of the
issue. A district court facing a motion to vacate the clerk's
default in these circumstances is more than justified in
believing that it has heard whatever the movant has to say
on the merits.
2. Appropriateness of a Default Judgment
We conclude that default judgments in
confirmation/vacatur proceedings are generally
inappropriate. A motion to confirm or vacate an award is
generally accompanied by a record, such as an agreement
to arbitrate and the arbitration award decision itself, that
may resolve many of the merits or at least command
judicial deference. When a court has before it such a
record, rather than only the allegations of one party found
in complaints, the judgment the court enters should be
based on the record. It does not follow, of course, that the
non-movant can simply ignore such a motion. If the
non-movant does not respond, its failure to contest issues
not resolved by the record will weigh against it.
In the present matter, the district court had before it the
written contracts between the Investors and Broker, the
NASD Uniform Submission Agreements, the award
rendered by the NASD arbitration panel, and the order
denying recalculation of the award. All were attached to
Broker's New York Petition. A default judgment was
inappropriate in light of this record. Rather, the petition
and accompanying record should have been treated as
akin to a motion for summary judgment based on the
movant's submissions. To be sure, the Investors failed to
respond, but the lack of a response does not justify a
default judgment because, even where a non-moving
party fails to *110 respond to a motion for summary
judgment, a court
may not grant the motion without first examining the
moving party's submission to determine if it has met its
burden of demonstrating that no material issue of fact
remains for trial. If the evidence submitted in support
of the summary judgment motion does not meet the
movant's burden of production, then summary
judgment must be denied even if no opposing
evidentiary matter is presented.
Vt. Teddy Bear Co., 373 F.3d at 244 (internal quotation
marks and citations omitted); see also United States v.
One Piece of Property, 5800 S. W 74th Ave., Miami, Fla.,
363 F.3d 1099, 1101 (11th Cir.2004) [hereinafter "One
Piece of Property "] ("[T]he district court cannot base the
entry of summary judgment on the mere fact that the
motion was unopposed but, rather, must consider the
merits of the motion."). Even unopposed motions for
summary judgment must "fail where the undisputed facts
fail to show that the moving party is entitled to judgment
as a matter of law." Vt. Teddy Bear Co., 373 F.3d at 244
(quoting Champion v. Artuz, 76 F.3d 483, 486 (2d
Cir.1996)) (internal quotation marks omitted).
d) Merits of the New York Petition
In sum, we hold that the removed New York Petition
was in substance a motion, that the presence of a return
date required the Investors to respond and that generally a
district court should treat an unanswered removed petition
to confirm/vacate as an unopposed motion for summary
judgment. However, under the circumstances here, the
Investors' argument on the merits in response to the
Clerk's default should be considered. Therefore, the
motion to confirm should be treated as unopposed, and
the motion to vacate should be treated as opposed on the
ground that the arbitrators were never informed of the rule
against prejudgment interest on punitive damages.
Normally, confirmation of an arbitration award is "a
summary proceeding that merely makes what is already a
final arbitration award a judgment of the court,"
Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d
Cir.1984), and the court "must grant" the award "unless
the award is vacated, modified, or corrected." 9 U.S.C. §
9. The arbitrator's rationale for an award need not be
explained, and the award should be confirmed " 'if a
ground for the arbitrator's decision can be inferred from
the facts of the case,' " Barbier v. Shearson Lehman
Hutton, Inc., 948 F.2d 117, 121 (2d Cir.1991) (quoting
Sobel v. Hertz, Warner & Co., 469 F.2d 1211, 1216 (2d
Cir.1972)). Only "a barely colorable justification for the
outcome reached" by the arbitrators is necessary to
confirm the award. Landy Michaels Realty Corp. v. Local
32B-32J, Service Employees Int'! Union, 954 F.2d 794,
797 (2d Cir.1992). A party moving to vacate an
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arbitration award has the burden of proof, and the
showing required to avoid confirmation is very high.
Willemijn Houdstermaatschappij, BV v. Standard
Microsystems Corp., 103 F.3d 9, 12 (2d Cir.1997)
[hereinafter "Willemijn "].
One of the grounds for which an award may be
vacated-and that argued by Broker in its New York
Petition with regard to the prejudgment interest award on
punitive damages-is manifest disregard of the law.
Wilko v. Swan, 346 U.S. 427, 436-37, 74 S.Ct. 182, 98
L.Ed. 168 (1953), rev'd on other grounds, Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 485,
109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). A party seeking
to vacate an arbitration award on the basis of manifest
disregard of the law must satisfy *111 a two-pronged test,
proving that: "(1) the arbitrator knew of a governing legal
principle yet refused to apply it or ignored it altogether,
and (2) the law ignored by the arbitrator was well defined,
explicit, and clearly applicable to the case." Hoeft v. MVL
Group, Inc., 343 F.3d 57, 69 (2d Cir.2003) (internal
quotation marks and alterations omitted).
Manifest disregard of the law "clearly means more than
error or misunderstanding with respect to the law."
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker,
808 F.2d 930, 933 (2d Cir.1986). The party challenging
an award for manifest disregard of the law must
demonstrate that the arbitrator actually knew about the
relevant rule of law. A showing that the average person
qualified to be an arbitrator would know the particular
rule is insufficient to that end. DiRussa v. Dean Witter
Reynolds Inc., 121 F.3d 818, 821 (2d Cir.1997) ("[T]he
term 'disregard' implies that the arbitrator appreciates the
existence of a clearly governing legal principle but
decides to ignore or pay no attention to it."). DiRussa
rejected the argument that manifest disregard could be
satisfied by showing that "the controlling legal principle
and subsequent error is so obvious to the average
qualified arbitrator that any different conclusion is
absurd," even though there was "no persuasive evidence
that the arbitrators actually knew of-and intentionally
disregarded"-the law. Id. at 822-23; see also Wallace v.
Buttar, 378 F.3d 182, 190 (2d Cir.2004) (noting that
manifest disregard was shown where arbitrators cited
Second Circuit precedent but explicitly declined to apply
it); Duferco Int'! Steel Trading v. T. Klaveness Shipping
A/S, 333 F.3d 383, 390 (2d Cir.2003) (including in the
manifest disregard test "a subjective element, that is, the
knowledge actually possessed by the arbitrators.... In
determining an arbitrator's awareness of the law, we
impute only knowledge of governing law identified by the
parties to the arbitration.").
It is true that we have stated that "a court may infer that
the arbitrators manifestly disregarded the law if it finds
that the error made by the arbitrators is so obvious that it
would be instantly perceived by the average person
qualified to serve as an arbitrator." Willemijn, 103 F.3d at
13. However, the meaning of that phrase in the context of
Willemijn was that an arbitrator's error in interpreting the
legal doctrine relied upon by the parties can constitute
manifest disregard if the average person qualified to serve
as an arbitrator would not have made such an
interpretation. Id. at 14 ("We only need decide whether
there is any colorable justification for their decision"; if
so, there is no manifest disregard.).'
The district court vacated that portion of the arbitral
award that granted prejudgment interest on punitive
damages to the Investors because it found it to be in
manifest disregard of the law. We review this decision de
novo. Wallace, 378 F.3d at 189; Hoeft, 343 F.3d at 69.
The Broker failed to inform the arbitrators that
prejudgment interest on punitive damages was
unavailable, and there is no other evidence that the
arbitrators knew of this rule. Moreover, Broker was on
notice that such damages were being sought because, as
discussed supra, the Investors changed the phrasing of
their claim from a claim *112 for compensatory damages,
interest, return of commissions, punitive damages, costs,
and attorneys' fees, to a claim for compensatory damages,
punitive damages, costs, prejudgment interest, and a
finding of a statutory violation. The rephrasing of this
claim put the Brokers on notice that prejudgment interest
on punitive damages was being sought. As noted,
furthermore, Broker responded to the Investors' motion
for the arbitrators to recalculate damages, but there is no
evidence that Broker informed the arbitrators of the legal
error of which they now complain. Because there is no
evidence that the arbitrators were aware of the rule
against prejudgment interest on punitive damages, their
award of such interest was not manifestly contrary to law.
Because the Broker's motion to confirm was unopposed,
confirmation of the entire arbitral award is appropriate.
The Investors claim a violation of their due process rights
in that the S.D.N.Y.'s confirmation of the arbitration
award "block[ed]" consideration of their Florida Petition
to vacate the damage portion of the award. When the
S.D.N.Y. rendered its decision on the New York Petition,
the Florida Petition was pending in the S.D. Fla. and is
now pending before the S.D.N.Y. This argument is a
concession-albeit a necessary one-that the claims
raised in the Florida Petition are barred by res judicata in
light of the S.D.N.Y. decision, a conclusion fortified by
our decision affirming the confirmation.
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D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95 (2006)
"Under the doctrine of res judicata, or claim preclusion,
'[a] final judgment on the merits of an action precludes
the parties or their privies from relitigating issues that
were or could have been raised in that action.' " St. Pierre
v. Dyer, 208 F.3d 394, 399 (2d Cir.2000) (quoting
Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398,
101 S.Ct. 2424, 69 L.Ed.2d 103 (1981)); see also Legnani
v. Alitalia Linee Aeree Italiane, S.p.A., 400 F.3d 139, 141
(2d Cir.2005) (" '[T]he first judgment will preclude a
second suit only when it involves the same 'transaction'
or connected series of transactions as the earlier suit ... .' "
(quoting Maharaj v. Bankamerica Corp., 128 F.3d 94, 97
(2d Cir.1997))).
However, the Investors took no step in the S.D.N.Y. to
seek vacatur of the damage award, and, even when faced
with a default judgment confirming the damage award,
never brought to the S.D.N.Y.'s attention the pertinent
Florida statutes. Because they failed to do so, they cannot,
now that a final decision on the merits has been reached,
seek to attack that decision by asserting the Florida
Petition's claims. We follow The Hartbridge, which
concluded that:
Upon a motion to confirm the party opposing
confirmation may apparently object upon any ground
which constitutes a sufficient cause under the statute to
vacate, modify, or correct, although no such formal
Footnotes
motion has been made.... As we understand the statute
a motion to confirm puts the other party to his
objections. He cannot idly stand by, allow the award to
be confirmed and judgment thereon entered, and then
move to vacate the award just as though no judgment
existed.
The Hartbridge, 57 F.2d 672,673 (2d Cir.1932).
CONCLUSION
For the reasons above, we vacate the district court's grant
of default judgment and the district court's order vacating
the arbitration award's provision for prejudgment interest
on punitive damages. We hold the arbitration award
should have been confirmed in full because it was not in
manifest disregard of the law. We remand *113 for
dismissal of the pending Florida Petition.
All Citations
462 F.3d 95
The Honorable J. Garvan Murtha, United States District Judge for the District of Vermont, sitting by designation.
We note further that the district court in the S.D. Fla., the venue to which the Investors would like to transfer this action,
also found the S.D.N.Y. to be the most appropriate venue for this matter. After considering Broker's motion to transfer
the Florida Petition to the S.D.N.Y. and "the pertinent portions of the record," the district court, being "fully advised in
the premises" of the matter, found that "Florida is not the best venue for this action."
2 There was no need for the district court to hold a status conference, set a briefing schedule, or hold a hearing. Such
acts are appropriate to ongoing proceedings leading to a trial. As the Investors themselves insist, the New York
Petition should have been treated as a motion rather than a complaint. The Local Rules of the S.D.N.Y. do not require
hearings for motions and allow them only when "directed by the court by order or by individual rule or upon
application." S.D.N.Y. R. 6.1 (c).
Finally, while S.D.N.Y. Local Rule 7.1 does require "all motions ... [to] be supported by a memorandum of law,"
Broker's failure to supply such a memorandum does not excuse the Investors from timely responding to the New York
Petition. A "district court has broad discretion to determine whether to overlook a party's failure to comply with local
rules," Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir.2001 ), and "[n]othing in ... the Civil Rules of the
Southern District requires a court to" punish a party for noncompliance. Maggette v. Dalsheim, 709 F.2d 800, 802 (2d
Cir.1983). While the Investors' response to the Broker's motion might have sought some relief or sanction for the
failure to submit a memorandum, the failure did not obviate the need to respond.
3 The phrase was also quoted in Duferco, 333 F.3d at 390; however, in that case the alleged error was an internally
inconsistent application of law in the arbitration award, an error that, according to the appellant, would have been
obvious to any person qualified to serve as an arbitrator. The issue was not whether the arbitrators were aware of the
governing law.
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D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95 (2006)
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government
Works.
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Annex 364

ANNEX365

Amaya v. Logo Enterprises, LLC, 251 F.Supp.3d 196 (2017)
251 F.Supp.3d 196
United States District Court, District of Columbia.
Tomas Lemus AMAYA, Plaintiff,
v.
LOGO ENTERPRISES, LLC, et al.,
Defendants.
Case No. 1:16-cv-00009 (CRC)
I
Signed 5/04/2017
Synopsis
Background: After restaurant and its owner failed to
respond to employee's action, seeking unpaid minimum
and overtime wages, under the Fair Labor Standards Act
(FLSA) and the District of Columbia Wage Payment
Collection Law (DCWPCL), employee moved for default
judgment.
Holdings: The District Court, Christopher R. Cooper, J.,
held that:
entry of default judgment was warranted against
restaurant and its owner;
employee was entitled to default judgment damages
award of $82,198.89 in unpaid minimum and overtime
wages, and $200,261.25 in liquidated damages; and
employee was entitled to attorney fees calculated per the
United States Attorney's Office Laffey Matrix.
Motion granted.
Plaintiff Tomas Lemus Amaya worked for six years as a
kitchen hand at the Pollo Granjero restaurant in
Washington, D.C. In this suit, he seeks to recover from
the restaurant and its owner unpaid minimum and
overtime wages for a period of approximately two years.
Despite having been served, defendants Logo Enterprises,
LLC ("Logo Enterprises") and its owner Juan Loyola
have not responded to the complaint or the clerk's entry
of default. Amaya now petitions the Court to enter a
default judgment, seeking a monetary judgment against
Defendants in the amount of $300,163.82, which includes
unpaid minimum and overtime wages, liquidated
damages, attorney fees, expenses, and court costs.
Because Amaya has adequately demonstrated
Defendants' liability and that he is entitled to monetary
relief, the Court will enter default judgments against Logo
Enterprises and Loyola.
I. Background
The Fair Labor Standards Act ("FLSA") requires
employers to pay a federal minimum wage of $7.25 per
hour, and overtime payments at a rate of one-and one-half
times the employee's regular hourly wage for hours
worked in excess of 40 hours per week. See 29 U.S.C. §§
206- 207. The statute further requires employers to pay
state-established minimum wages if they are higher than
the federal minimum wage. See id.§ 218.
The District of Columbia Wage Payment and Collection
Law ("DCWPCL") establishes the minimum wage that
employers must pay to persons employed in the District
of Columbia. See D.C. Code§ 32-1001. During the time
periods alleged in Amaya's complaint, the D.C. minimum
wage was $8.25 per hour from January 1, 2013 until June
30, 2014; $9.50 from July 1, 2014 until June 30, 2015;
and $10.50 from July 1, 2015 until the end of Amaya's
employment on October 21, 2015. See D.C. Code §
32-1003. Because the federal minimum wage was lower
during all relevant periods, Amaya's minimum hourly
wage is established by the DCWPCL.
Logo Enterprises and Loyola are employers as defined by
the FLSA and the DCWPCL. 1 Logo Enterprises is a
limited *199 liability company operating under the name
Pollo Granjero. Compl. <J[ 6. Pollo Granjero employed
*198 MEMORANDUM OPINION Amaya as a kitchen hand, starting in 2009 until
approximately October 21, 2015. Compl. 'l[<J[ 9-11.2
Amaya filed suit on January 5, 2016 alleging that
CHRISTOPHER R. COOPER, United States District Defendants violated both the FLSA and DCWPCL by
Judge paying him less than the required minimum wage and no
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Annex 365
Amaya v. Logo Enterprises, LLC, 251 F.Supp.3d 196 (2017)
overtime pay despite his working an average of 83 hours
per week. Id. fl 6-7, 17, 40-41. Accordingly, Amaya
argues that he is entitled to $313,128.00, which includes
unpaid wages from January 1, 2013 until October 21,
2015, liquidated damages, court costs, and attorney fees
and expenses.
Loyola and the Company were properly served on
January 12, 2016 and February 4, 2016 respectively.
Neither Defendant filed a response, and the Clerk of the
Court entered a default against both. In September 2016,
Amaya filed a Motion for Default Judgment, which has
received no response in the past six months.
II. Standard of Review
The standard for default judgment is a two-step
procedure. See e.g., Ventura v L.A. Howard Constr. Co.,
134 F.Supp.3d 99, 102 (D.D.C. 2015). A plaintiff must
request first that the Clerk of the Court enter a default
against an opposing party who has "failed to plead or
otherwise defend," Fed. R. Civ. P. 55(a), which
"establishes the defaulting party's liability for the
well-pleaded allegations of the complaint." Boland v.
Elite Terrazzo Flooring, Inc., 763 F.Supp.2d 64, 67
(D.D.C. 2011). A plaintiff must then petition the court for
a default judgment against the parties. Fed. R. Civ. P.
55(b)(2). The purpose of default judgments is to prevent
absentee defendants from escaping liability by refusing to
participate in judicial proceedings. See Elite Terrazzo
Flooring. 763 F.Supp.2d at 67.
Once liability has been established, courts have
considerable latitude in determining the appropriate award
through an independent evaluation of the alleged
damages. Courts may choose to hold a hearing or can
base their assessments on "detailed affidavits or
documentary evidence" submitted by plaintiffs in support
of their claims. Boland v. Providence Constr. Corp., 304
F.R.D. 31, 36 (D.D.C. 2014) (quoting Fanning v.
Permanent Sol. Indus., Inc., 257 F.R.D. 4, 7 (D.D.C.
2009)). However, the Court is not required to hold a
hearing " 'as long as it ensures that there is a basis for the
damages specified in the default judgment.' " Elite
Terrazzo Flooring, Inc., 763 F.Supp.2d at 67.
III. Analysis
The Court will first consider Defendants' liability and
then tum to evaluating the relevant damages.
A. Liability
The FLSA requires that an employer pay his employees
for hours worked in *200 excess of forty hours per week
"at a rate not less than one and one-half times the regular
rate at which he is employed." 29 U.S.C. § 207(a). The
DCWPCL likewise requires employer to compensate
employees for overtime "at a rate not less than 1 ½ times
the regular rate at which the employee is employed." D.C.
Code § 32-1003. Under the DCWPCL, if an employer
fires an employee, "the employer shall pay the
employee's wages earned not later than the working day
following such discharge." D.C. Code § 32-1303. If an
employee quits or resigns, however, "the employer must
pay the employee's wages due upon the next regular
payday or within 7 days from the date of quitting or
resigning, whichever is earlier." Id.3
Amaya has submitted an affidavit, summarizing the hours
he worked and attesting that the Company failed to pay
him a legally-mandated minimum wage or overtime for
work done between January 2013 and October 21, 2015,
resulting in approximately $82,198.50 in unpaid wages.
See Pl's Mot. Default J. ("MDJ"), Amaya Aff. fl 10, 19.
For Juan Loyola to be liable in an individual capacity, he
must qualify as an employer under the FLSA and the
DCWPCL. See Ventura v. Bebo Foods. Inc., 738
F.Supp.2d 1, 5 & n. 2 (D.D.C. 2010) (applying individual
liability analysis under the FLSA to individual liability
analysis under the DCWPCL). Typically, an individual
"who exercises operational control over an employee's
wages, hours, and terms of employment qualifies as an
'employer,' and is subject to individual liability."
Guevara v. Ischia. Inc., 47 F.Supp.3d 23, 26-27 (D.D.C.
2014) (internal citation omitted); see also Perez v. C.R.
Calderon Construction. Inc., 221 F.Supp.3d 115, 143-44,
2016 WL 7410544, at *20 (D.D.C. Dec. 22, 2016)
("[T]he overwhelming weight of authority is that a
corporate officer with operational control of a
corporation's covered enterprise is an employer along
with the corporation, jointly and severally liable under the
FLSA for unpaid wages.") (quoting Ruffin v. New
Destination, 800 F.Supp.2d 262, 269 (D.D.C. 2011). To
determine individual liability, courts in this district have
considered whether the employer was responsible for
hiring and firing, controlling work schedules, establishing
pay rates, and maintaining employment records. See
Ventura, 738 F.Supp.2d at 6. Here, Amaya alleges that
Loyola was the owner of Logo Enterprises and
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Annex 365
Amaya v. Logo Enterprises, LLC, 251 F.Supp.3d 196 (2017)
"exercise[d] exclusive control over its operations and pay
practices." Compl. <J[ 7 (emphasis added). For example,
Loyola was physically present at the restaurant every day,
and he was responsible for hiring Amaya, assigning him
tasks, supervising his work, setting his work schedule,
and paying him. See Amaya Aff. <J[<J[ 4-12. Such facts
sufficiently establish that Loyola is an employer under the
FLSA because he had "a significant ownership interest in
[Logo Enterprises]" and "operational control" over it.
Ventura, 738 F.Supp.2d at 6; see also Martinez v. Asian
328. LLC, 2016 WL 4621068, at *4 (D.D.C. Sep. 6,
2016). With no response from Defendants, the Court
accepts Amaya's well-pleaded allegations as true and
holds that Logo Enterprise and Juan Loyola are liable to
Amaya. See. e.g.. Elite Terrazzo Flooring. Inc., 763
F.Supp.2d at 67---68; Fanning. 257 F.R.D. at 7.
*201 B. Damages
"When a defendant has failed to respond, the Court must
make an independent determination-by relying on
affidavits, documentation, or an evidentiary hearing-of
the sum to be awarded as damages." Ventura, 134
F.Supp.3d at 104. In his affidavit, Amaya avows that he
typically worked 83 hours per week, for which he was
paid $800 twice per month (the equivalent of $369.20 per
week or $4.56 per hour) from January 1, 2013 through
August 31, 2015, and $900.00 twice per month ($415.35
per week or $5.00 per hour) from September 1, 2015
through October 21, 2015.4 Amaya Aff. <J[<J[ 10-11, 15; see
also U.S. Dep't. of Labor Wage and Hour Div.
Coefficient Table. Under the DCWPCL, he is owed
$82,198.89 in unpaid wages for his 83-hour work weeks.
The Court independently confirmed Amaya' s calculations
and accepts the accuracy of the $82,198.89 figure. See
infra App. 1.
In addition to unpaid wages, Amaya seeks liquidated
damages. Under the FLSA, liquidated damages equal the
amount of unpaid wages. See 29 U.S.C. § 216. Under the
current version of the DCWPCL, which came into effect
on December 23, 2014, liquidated damages are "an
amount equal to treble the unpaid wages." Fiscal Year
2014 Budget Support Emergency Act of 2013, D.C. Code
§ 32-1303; see, e.g .. Martinez v. Asian 328, LLC, 220
F.Supp.3d 117, 122-23, 2016 WL 7167969, at *5 (D.D.C.
Dec. 8, 2016).5 The prior DCWPCL, like the FLSA,
defined liquidated damages as the amount of unpaid
wages.
Amaya argues that the DCWPCL came into effect on
October 1, 2013, so his liquidated damages equal his
unpaid wages from January 1, 2013 to September 30,
2013, and treble any unpaid wages after that. He
calculates his liquidated damages at $208,148.13. But the
"treble damages provision" did not become effective until
December 24, 2013. See Ventura, 134 F.Supp.3d at 105
n.3. The source of Amaya's confusion, however, could be
due to the fact that the District enacted an emergency
act-the Fiscal Year 2014 Budget Support Emergency
Act of 2013 ("A20-130")-which authorized treble
damage awards between October 1, 2013 and October 28,
2013. See Fiscal Year 2014 Budget Support Emergency
Act of 2013, §§ 11001, 11003. The relevant time periods
and applicable provisions are therefore as follows: From
January 1, 2013 to September 30, 2013, liquidated
damages equal unpaid wages under both the FLSA and
the DCWPCL; from October 1, 2013 until October 28,
2013, liquidated damages equal treble the unpaid wages
under the A20-130; from October 29, 2013 until
December 23, 2014, liquidated damages equal unpaid
wages under both the FLSA and *202 DCWPCL; and
finally, from December 24, 2014 to October 21, 2015,
liquidated damages equal treble the unpaid wages under
the DCWPCL. With the damages provisions properly
applied to the relevant time periods, Amaya's liquidated
damages total $200,261.25. See infra App. 2.
C. Attorney's Fees. Court Costs. and Expenses
Both the FLSA and the DCWPCL authorize reasonable
attorney's fees and costs to employees whose rights are
violated. See 29 U.S.C. § 216(b); D.C. Code §
32-1012(c). "Under FLSA, an award of attorney's fees to
the prevailing party is mandatory." Escamilla v. Nuyen,
2017 WL 23739, at *14 (D.D.C. Jan. 3, 2017) (citing
Driscoll v. George Washington Univ., 55 F.Supp.3d 106,
112 (D.D.C. 2014)). Because the Court finds Amaya is
entitled to relief under the FLSA and the DCWPCL, he is
likewise entitled to reasonable attorney's fees.
"The initial estimate of a reasonable attorney's fee is
properly calculated by multiplying the number of hours
reasonably expended on the litigation times a reasonable
hourly rate." Ventura, 134 F.Supp.3d at 105 (citing Blum
v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79
L.Ed.2d 891 (1984)). "An attorney's usual billing rate is
presumptively the reasonable rate, provided that the rate
is in line with those prevailing in the community for
similar services by lawyers of reasonably comparable
skill, experience, and reputation." Id. ( citing Kattan by
Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C.
Cir. 1993) (internal quotation marks omitted)). "[A]
moving party must affirmatively 'demonstrate that [his]
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Annex 365
Amaya v. Logo Enterprises, LLC, 251 F.Supp.3d 196 (2017)
suggested rates [are] appropriate' by establishing their
conformity with rates charged in the community for
similar services." Id. (quoting Eley v. District of
Columbia, 793 F.3d 97, 104-05 (D.C. Cir. 2015)).
Amaya seeks $9,816.80 in attorney's fees for the 22.2
hours worked by attorneys Jonathan Tucker and Justin
Zelikovits and the 4.4 hours worked by their paralegal Tre
Holloway. Zelikovitz has provided an affidavit detailing
the hours worked, the description of the activity, and the
total costs. See MDJ, Ex. C, at 1. The Court is satisfied
that Amaya has adequately justified the hours expended
on his case. In addition, in support of their $406.00 hourly
rate, Amaya's attorneys have submitted the Legal Service
Index Laffey Matrix as evidence of the prevailing rates
for similar services in the community. Id. at 2-4. "The
Laffey Matrix sets out a general guideline for awarding
attorneys' fees based on experience." Salazar ex rel.
Salazar v. D.C., 809 F.3d 58, 62 (D.C. Cir. 2015) (citing
Eley. 793 F.3d at 101-02). There are two predominant
versions of the Laffey Matrix: "(i) the Laffey Matrix as
updated by the Legal Services Index ("LSI") of the
Nationwide Consumer Price Index ("CPI") (the "LSI
Laffey Matrix"), and (ii) the All-Items CPI for the
Washington, D.C. area (also known as the "USAO Laffey
Matrix")." Id. Without additional evidence to justify
applying the LSI Matrix's higher rates for complex
federal litigation, the Court will apply the standard USAO
Laffey Matrix to calculate Amaya' s legal fees. See USAO
Laffey Matrix-2015-2017 ("USAO Laffey Matrix"),
available at
https:/ /www .justice.gov/usao-dc/file/88917 6/download.
Both Tucker and Zelikovits have at least six years of legal
experience, see MDJ 9, and therefore, their Laffey Matrix
rate is $332.00 per hour for work performed in 2015 and
$339.00 for work performed in 2016, see USAO Laffey
Matrix. Paralegal Holloway's Laffey Matrix rate is
$157.00 per hour (all of her work occurred in 2016). *203
Based on these rates, Amaya's attorneys' fees total
$8,181.60.
Accordingly, the Court will award Amaya a total of
$291,121.74; including $82,198.89 in unpaid wages,
$200,261.25 in liquidated damages, $8,181.60 in
attorneys' fees, $400.00 in court filing fees, and $80.00 in
service expenses.
IV. Conclusion
For the foregoing reasons, the Court will grant Amaya' s
Motion for Entry of Default Judgment. The Court will
issue a separate Order consistent with this Memorandum
Opinion.
Appendix 1
Date- Range D.C. l\linimum Amount Chnd Number of WogcsOwf-d
\Vage PcrWet"k6 \Ve<'ks
D.C. Ove rtime
\Vu~e
1/ 1113 - l0/30113 $8.25 S492.93 39 SI9, 224.27
($369.20 per week) $12.375
1011/13 - 10/28/13 $8,25 S492.93 4 Sl.971.72
($369.20 per wee~) $12,375
10129113 12123113 $8.25 S492.93 8 $3.943.44
($369.20 per week) $12.375
12124113 - 6/30114 $8.25 S492.93 27 SIJ,309. I I
($369.20 per week) $)2,375
711 114 6130115 $9.50 $623.55 52 S32. 424.60
($369,20 p<r week) $14.25
7/ 1115 - 8131 1!5 $1 0.50 $728.05 9 $6,552.45
($369.20 per week) $15.7.\
911115 !0121 11 l $10.50 $681.90 7 S4, 773.30
($41 l. 35 per week) $15.75
Tolnl $82, 198.89
[Editor's Note: The preceding image contains the
reference for footnote6].
Appendix 2
*204
Date
111113 9130113
1011113 - 10/28113
10128/13 - 12123/13
12124113 6/30114
711114 6130115
711115 - &13 !/!l
9/ 1/ l l 10121115
Total:
All Citations
Unpaid Wilges
$19.224.27
$ 1,971.72
$3,943.44
$13.309.11
$32. 424.60
$6,552.45
$4. 773.30
$82,!9R89
251 F.Supp.3d 196
Liquidated D11mo.ges Total
$19.224.27 S38.448.54
$5,915.16 $7,886.88
$3.943.44 S?.666.88
$39,927.33 S53.236.44
$97,273.80 S!29,698.40
$19,657.35 S26,209.80
$14.319.90 S !9.093.20
$200, 261.25 $282,460.14
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Annex 365
Amaya v. Logo Enterprises, LLC, 251 F.Supp.3d 196 (2017)
Footnotes
Logo Enterprise is an employer under the FLSA because it had two or more employees who handled goods that
travelled in or were produced for interstate commerce, see Pl.'s Campi. ,r 23, and the annual gross volume of Logo
Enterprises' business exceeded $500,000, see id. at ,r 22. See 29 U.S.C. § 203(s)(1 )(A)(i)-(ii). Logo Enterprises is
likewise an employer under the DCWPCL because it is a corporation that "act[s] directly or indirectly in the interest of
an employer in relation to an employee.'' D.C. Code § 32-1002(3). Additionally, because Logo Enterprises is an
employer under the FLSA and "the DCWPCL is construed consistently with the FLSA," it is considered an employer
under the DCWPCL as well. Ventura v. Bebo Foods, Inc., 738 F.Supp.2d 1, 6 (D.D.C. 2010).
2 The record does not specify when Amaya began his employment.
3 Amaya cites to D.C. Code§ 32-1303(2) for the proposition that employers must pay an employee who quits or resigns
all wages due upon the next regular pay day, but he does not reference D.C. Code § 32-1303(1 ), which sets forth a
separate timeline for employees who are fired. Regardless of whether Amaya resigned or was fired though, any
deadline to pay earned wages has passed.
4 Amaya's original complaint states that from September 1, 2015 through October 21, 2015, his effective hourly rate was
$5.13. In Amaya's motion for default judgment, the effective rate for that time period is calculated at $5.00 per hour.
Because Amaya has established how he calculated the latter figure, the Court will use the $5.00 hourly rate for its own
calculation of damages.
5 More precisely, under the DCWPCL, liquidated damages equal either "10 per centum of the unpaid wages for each
working day during which such failure shall continue after the day upon which payment is hereunder required, or an
amount equal to treble the unpaid wages, whichever is smaller." D.C. Code§ 32-1303. Using the former calculation, if
Amaya were owed roughly $82,000 in unpaid wages for over a year, he would be owed at a minimum $2,900,000 in
liquidated damages ($82,000 x 10% x 365 days). Because the second calculation would result in a smaller damages
award, the Court will treble Amaya's unpaid wages to determine his liquidated damages. See Ventura, 738 F.Supp.2d
at 22.
6 Wages owed = (40 hours x applicable minimum wage) + (overtime hours [43 hours] x one and one-half times the
minimum wage) - wages paid.
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government
Works.
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Annex 365

ANNEX366

Force v. Islamic Republic of Iran, 464 F.Supp.3d 323 (2020)
464 F.Supp.3d 323
United States District Court, District of Columbia.
Taylor FORCE, et al., Plaintiff,
v.
The ISLAMIC REPUBLIC OF IRAN, et
al., Defendant.
Synopsis
Civil Action No. 16-1468 (RDM)
I
Signed 05/31/2020
Background: Victims and family members of victims of
terrorist attacks which had taken place in Israel brought
action under Foreign Sovereign Immunities Act's (FSIA)
terrorism exception against Iran and Syria, alleging that
countries' provision of material support to terrorist
organizations had caused injuries suffered by victims and
family members. Following entry of default, victims and
family members moved for entry of default judgment and
for appointment of special master to conduct damages
proceedings.
Holdings: The District Court, Randolph D. Moss, J., held
that:
most victims and family members established waiver of
sovereign immunity under FSIA terrorism exception;
victims of terrorist attack which had destroyed their home
while they were away failed to establish waiver of
sovereign immunity;
victims and family members who had established waiver
of sovereign immunity and were United States citizens
were entitled to relief under FSIA terrorism exception's
private right of action;
the District Court had personal jurisdiction over Iran and
Syria;
Israeli law provided substantive law for claims of victims
and family members who were not United States citizens;
most such victims and family members were entitled to
relief under Israeli negligence law; but
family members of victim of terrorist attack who had been
born after attack failed to establish right to relief under
Israeli negligence law.
Ordered accordingly.
Attorneys and Law Firms
*334 Robert Joseph Tolchin, The Berkman Law Office,
LLC, Brooklyn, NY, Joseph Z. Hellerstein, Pro Hae Vice,
Hellerstein & Co., for Plaintiff.
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, United States District Judge
This civil action for compensatory and punitive damages
arises under the terrorism exception to the Foreign
Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605A.
The fifty-seven plaintiffs are the victims of seven separate
terrorist attacks that took place in Israel between March 6,
2008 and March 8, 2016, and their family members. Most
of the plaintiffs are U.S. citizens (including dual
U.S.-Israeli nationals), although some are not. Defendants
include the Islamic Republic of Iran, the *335 Iranian
Ministry of Information and Security ("MOIS"), and the
Syrian Arab Republic. Plaintiffs assert that their injuries
were caused by Iran and Syria's provision of material
support to two terrorist organizations-Hamas and
Palestinian Islamic Jihad ("PIJ").
To establish subject-matter jurisdiction, Plaintiffs invoke
the state-sponsored terrorism exception to the FSIA, 28
U.S.C. § 1605A(a). The forty-four U.S.-citizen plaintiffs,
see Dkt. 87 at 41, also rely on another provision of the
statute to supply a federal cause of action: They argue that
Iran and Syria violated § 1605A(c) by providing "material
support" to Hamas and PIJ, which, in tum, engaged in the
extra judicial killing ( or attempted extra judicial killing) of
U.S. nationals in the seven attacks at issue. Dkt. 1 at
28-31 (Compl. <Jrl[ 116-31). Plaintiffs also assert claims
for negligence and aiding and abetting under Israeli law.
Id. at 31-34 (Compl. <Jrl[ 132-51). None of the Defendants
has answered or otherwise appeared in this action.
Consequently, at Plaintiffs' request, the Clerk of the Court
WEST AW © 2021 Thomson Reuters. No claim to original U.S. Government Works.
Annex 366
Force v. Islamic Republic of Iran, 464 F.Supp.3d 323 (2020)
entered defaults against all three Defendants. Dkt. 23;
Dkt. 24.
Plaintiffs subsequently moved for the entry of a default
judgments against the Islamic Republic of Iran, MOIS,
and the Syrian Arab Republic, Dkt. 91, and for the
appointment of a special master to conduct damages
proceedings, Dkt. 85 at 1, 21-22. As explained below, the
U.S. national plaintiffs, with the exception of the
Parnases, have established their right to relief against Iran,
but not Syria, under 28 U.S.C. § 1605A(a). The Court
further concludes that the non-U.S.-citizen
plaintiffs-with the exception of M.H.B and Y.A.L.B.,
who were born after the attack that injured their
father-are entitled to recover under the law of Israel for
negligence and aiding and abetting. The Court will,
accordingly, DENY the motion for entry of default
judgment as to all claims by the Parnases without
prejudice. The Court will also DENY the motion for entry
of default judgment as to all claims by M.H.B. and
Y.A.L.B., who are represented by their parents, Schmuel
and Nechama Brauner, without prejudice. As to the
remaining fifty-one Plaintiffs, the Court will GRANT the
motion as to their claims against the Syrian Arab
Republic, the Islamic Republic of Iran and MOIS, see 28
U.S.C. § 1608(e), and will APPOINT a special master to
hear their damages claims and to report to the Court
recommending the appropriate award as to those
plaintiffs.
I. INTRODUCTION
Plaintiffs, forty-four U.S. nationals (or their estates) and
thirteen non-U.S. nationals bring this action for damages
against the Islamic Republic of Iran, MOIS, and the
Syrian Arab Republic. They allege that both countries
"gave substantial aid, assistance[,] and encouragement to
... Hamas and PU ... with the specific intention of causing
and facilitating the commission of acts ... including the
terrorist attacks at issue." Dkt. 1 at 14, 18 (Compl. CJ[<][ 53,
66). Plaintiffs effected service on the Syrian Arab
Republic on November 14, 2016, Dkt. 15, and on the
Islamic Republic of Iran and the MOIS on July 19, 2017,
Dkt. 20. None of the Defendants has answered, filed a
motion under Federal Rule of Civil Procedure 12, or
otherwise appeared. See Dkt. 21; Dkt. 22. Accordingly, at
Plaintiffs' request, the Clerk of the Court declared all
Defendants in default on November 14, 2017. See Dkt.
23; Dkt. 24.
Plaintiffs now seek entry of a default judgment with
respect to liability against all three Defendants pursuant to
Federal Rule of Civil Procedure 55. Dkt. 91. Even in a
garden variety case, the entry of a default judgment "is
not automatic," *336 Mwani v. bin Laden, 417 F.3d 1, 6
(D.C. Cir. 2005), and requires the exercise of "sound
discretion," Boland v. Yoccabel Const. Co., Inc., 293
F.R.D. 13, 17 (D.D.C. 2013) (citing Jackson v. Beech,
636 F.2d 831, 836 (D.C. Cir. 1980)). Most notably, the
Court must-at a minimum-satisfy itself that it has
subject-matter jurisdiction over the claims and personal
jurisdiction over the defendants. See Jerez v. Republic of
Cuba, 775 F.3d 419, 422 (D.C. Cir. 2014) ("A default
judgment rendered in excess of a court's jurisdiction is
void."); Mwani, 417 F.3d at 6 (explaining that the Court
must "satisfy itself that it has personal jurisdiction before
entering judgment against an absent defendant").
In cases brought against a foreign state, however, the
Court's discretion to enter a default judgment is more
narrowly circumscribed. By statute, no federal or state
court may enter a default judgment against a foreign state
or instrumentality "unless the claimant establishes his
claim or right to relief by evidence satisfactory to the
court." 28 U.S.C. § 1608(e). This is the same standard
that applies to default judgments against the United States
under Federal Rule of Civil Procedure 55(d). See Owens
v. Republic of Sudan, 864 F.3d 751, 785 (D.C. Cir. 2017)
("Owens IV '), vacated in part and remanded on other
grounds sub nom. Opati v. Republic of Sudan, - U.S.
-, 140 S.Ct. 1601, 206 L.Ed.2d 904 (2020); Hill v.
Republic of Iraq, 328 F.3d 680, 683 (D.C. Cir. 2003). In a
case, such as this, alleging that a foreign state materially
supported acts of terrorism, the district court must
determine "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).
But the Court must do so in light of Congress's purpose in
enacting § 1605A-that is, to "compensat[e] the victims
of terrorism [so as to] punish foreign states who have
committed or sponsored such acts and [to] deter them
from doing so in the future," id. at 1048 (quoting Price v .
Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82,
88-89 (D.C. Cir. 2002)) (first alteration in original)-and
the difficulty in obtaining "firsthand evidence and
eyewitness testimony ... from an absent and likely hostile
sovereign," Owens N, 864 F.3d at 785. This means that,
to obtain a default judgment against Iran, MOIS, and
Syria, Plaintiffs must (1) carry their burden of producing
evidence sufficient to show that their claims fall within
the state-sponsored terrorism exception to the FSIA, see
28 U.S.C. § 1605A(a); Owens N, 864 F.3d at 784; (2)
establish that defendants were served in accordance with
the FSIA, see 28 U.S.C. § 1608(a); and (3) establish their
right to relief under federal, see 28 U.S.C. § 1605A(c), or
state law, Owens N, 864 F.3d at 809 ("the pass-through
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Annex 366
Force v. Islamic Republic of Iran, 464 F.Supp.3d 323 (2020)
approach remains viable"), by offering evidence
"satisfactory to the court," 28 U.S.C. § 1608(e).
Against this backdrop, the Court held a two-day hearing
on liability, Dkt. 104; Dkt. 105, and received additional
evidentiary submissions, Dkts. 21-84, as well as proposed
findings of fact and conclusions of law from plaintiffs, see
Dkt 87 (Proposed Findings of Fact); Dkt. 85
(Memorandum of Law). In the course of the hearing, the
Court applied the Federal Rules of Evidence, but did so
on the understanding that, first, it has "the
authority-indeed, the obligation-to 'adjust
[ evidentiary requirements] to . . . differing situations,' "
Han Kim, 774 F.3d at 1048 (quoting Bundy v. Jackson,
641 F.2d 934, 951 (D.C. Cir. 1981)) (modifications in
Han Kim), and, second, that the Court need not "step into
the shoes of the defaulting party and pursue every
possible evidentiary challenge," Owens IV, 864 F.3d at
785. Recognizing that expert testimony is not *337 only
entirely proper, but often sufficient, id. at 788, and even
indispensable in "terrorism cases . . . because firsthand
evidence of terrorist activities is difficult, if not
impossible to obtain," id. at 787, the Court also
considered the extensive expert testimony Plaintiffs
presented.' Whether through expert testimony or other
competent evidence, the Court must ultimately determine
whether the Plaintiffs have "substantiate[d] [the] essential
element[s] of jurisdiction" with admissible evidence. Id.
at 786.
The Court now makes the following findings of fact and
conclusions of law.
II. FINDINGS OF FACT
Plaintiffs' evidentiary presentation included testimony
from five experts and a dozen exhibits. See Dkt. 104, Dkt.
105. The Court heard from Dr. Matt Levitt, an expert on
"Iranian sponsorship of terrorism including Hamas and
[PIJ]," Dkt. 104 at 10 (Levitt); Colonel Arieh Spitzen, an
expert on "Palestinian terror groups that operate within
the Palestinian territories," id. at 53 (Spitzen); Dr.
Benedetta Berti, the head of policy planning for the
Secretary General of NATO, Dkt. 105 at 5, 8 (Berti), and
an expert on Syrian support for Hamas and PIJ, id. at 8
(Berti); Dr. Patrick Clawson, an expert on Iranian support
for Hamas, id. at 60 (Clawson); and Dr. Marius Deeb, an
expert on Syrian support for terrorism, specifically for
Hamas and PIJ, id. at 96-97 (Deeb).
Based on the testimony of these witnesses, trial exhibits,
and declarations submitted by Plaintiffs, the Court finds
as follows: First, Iran provided Hamas and PIJ with
significant support in the form of arms and financial
assistance, as well as training and technical expertise.
Second, Syria provided both groups with a safe
operational base from which to run their organizations.
Third, Hamas carried out six of the seven terror attacks at
issue: (1) the March 8, 2016 stabbing of Plaintiff Taylor
Force, which resulted in his death; (2) the January 27,
2016 stabbing of Plaintiff Menachem Mendel Rivkin,
which resulted in severe physical injuries; (3) the October
13, 2015 bus massacre, which resulted in the death of
Plaintiff Richard Lakin; (4) the August 19, 2011 rocket
attack, which led to the injury of Schuel Brauner; (5) the
November 21, 2012 rocket attack, which resulted in
emotional injury to Plaintiffs Daniella Parnas, Noa
Parnas, Dana Parnas, and AP.; (6) the March 6, 2008
Shooting at Merkaz HaRav Yeshiva, which resulted in the
death of Plaintiff A vraham David Moses and severe
physical injury to Plaintiff Naftali Shitrit. Fourth, the
Court concludes that PIJ carried out the October 28, 2014
shooting of Yehudah Glick, resulting in his severe
physical injuries.
A. Iran's Material Support to Hamas and PU
1. Overview of Iran's Proxy Strategy
Since the Islamic Revolution in 1979, the Islamic
Republic of Iran, led by its Supreme Leader, has actively
opposed Israeli interests in the Middle East. Dkt. 32 at
7-8, 10-14 (Clawson Deel. <J[CJ[ 19, 27-28, 30). One of the
primary means by which Iran conducts this geopolitical
strategy is by supporting non-state actors, including
Hamas and PIJ, which share Iran's opposition to Israeli
interests in the region. Id. at 14 (Clawson Deel. <J[CJ[
30--31); Dkt. 31 at 10--11 (Levitt Deel. <J[CJ[ 19, 22)
(Hamas's opposition to Israel); Id. at 46--47 (Levitt Deel.
*338 <J[CJ[ 90-91, 93). Iran has also, at times, encouraged
individuals sharing Iran's goals of destroying the state of
Israel to conduct "lone wol[f]" attacks and has offered
money to the families of suicide bombers who terrorize
Israeli civilians. Id. at 13 (Clawson Deel. <J[ 28). As a
result, the United States has, since 1984, continuously
designated Iran as a state sponsor of terrorism. Id. at 10
(Clawson Deel. <J[ 27).
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2. Iran's Material Support to Hamas
Hamas is both an acronym for "Harakat al-Muqawama
al-Islamiya," which translates to "Islamic Resistance
Movement," and is an Arabic word meaning "zeal." Dkt.
31 at 10 (Levitt Deel. <j[ 19) (italics and internal quotation
marks omitted). Founded in 1987, Hamas aims to
"establish[ ] in [Israel's] place an Islamist state." Id. at
10-11 (Levitt Deel. <j[<j[ 19, 22). Hamas "employs a
three-pronged strategy to achieve this goal: (1) social
welfare activity that builds grassroots support for the
organization, (2) political activity that competes with the
secular Palestinian Authority," and (3) "terrorist attacks
that target Israeli soldiers and civilians." Id. at 10 (Levitt
Deel. <j[ 19).
Hamas deploys a wide variety of types of attacks, "from
shooting[s], bombing[s], stabbing[s], and vehicular
attacks, to suicide operations and rocket barrages fired at
Israeli civilian population centers." Id. at 12 (Levitt Deel.
<j[ 23). While the intended goal is to terrorize the Israeli
population, Hamas's attacks have killed individuals from
around the world, including "from the United States, the
United Kingdom, Ukraine, Romania, China, the
Philippines and Sweden." See id. at 11 (Levitt Deel. <j[ 22).
"Without the significant funding it needs to carry out its
terrorist, political, and social activities-which are
interdependent and mutually reinforcing
endeavors-Hamas could not function." Id. at 21 (Levitt
Deel. <j[ 41). "Estimates of Hamas'[s] total annual budget
range from $30 million to $90 million a year." Id. at 23
(Levitt Deel. <j[ 45)
Although the extent and nature of Iran's support for
Hamas has varied over time, there is near-universal
agreement that Iran has provided "critical" material
support-in the form of cash, weapons, and training-for
Hamas's terrorist activities since at least the mid-1990s.
Id. at 21 (Levitt Deel. <j[ 41); see also id. at 29 (Levitt
Deel. <j[<j[ 58-59); Dkt. 32 at 14 (Clawson Deel. <j[ 30); Dkt.
31 at 38 (Levitt Deel. <j[ 76); id. at 37 (Levitt Deel. <j[<j[
73-7) (explaining that, even during a falling out over the
Syrian civil war, "Iranian funding for Hamas never
completely stopped"). Both Hamas and Iran have
repeatedly acknowledged the support that Iran provides.
See, e.g., Dkt. 31 at 27 (Levitt Deel. <j[<j[ 54--55) (collecting
exemplary statements from Hamas leadership); Dkt. 32 at
23-24 (Clawson Deel. <j[ 58) (quoting Supreme Leader
Khamenei saying that "Iran .. . aids Hamas ... in
Palestine"). Beyond finances and weapons, "Iran also
provides logistical support to Hamas and military training
to its members," and oversees training camps in its own
territory and in Lebanon for the purpose of training
Hamas members. Id. at 29 (Levitt Deel. <j[ 58 (citation
omitted)).
Iran began providing financial and logistical support for
Hamas in the 1990s because of "Hamas' [ s] willingness to
perpetrate terrorist activities and bus bombings"-attacks
that Iran encouraged and praised. Dkt. 32 at 14-15
(Clawson Deel. <j[<j[ 35, 37). In these years, "Iran gave
Hamas millions of dollars," which supported Hamas's
terrorist activities, and "provid[ed] legitimate front
activities behind which Hamas could hide its terrorist
activities." Id. at 15 (Clawson Deel. <j[ 38); see also Dkt.
31 at 29-30 (Levitt Deel. *339 <j[ 59) (summarizing
different countries' estimates). During this period, Iran
paid Hamas "generously" for successful terrorist attacks.
Dkt. 32 at 15 (Clawson Deel. <j[ 38). Iran also began
smuggling rockets and weapons to Hamas in Gaza
through tunnels between Egypt and Gaza. Id. at 19
(Clawson Deel. <j[ 50) (quoting Yoram Cohen & Matthew
Levitt, Washington Institute for Near East Policy, Hamas
Arms Smuggling: Egypt's Challenge (March 2, 2009),
available at
https://www.washingtoninstitute.org/policy-analysis/view
/hamas-arms-smuggling-egypts-challenge); Dkt. 31 at 34
(Levitt Deel. <j[ 66). Iran also specially designed rockets
that could fit through these tunnels for the purposes of
smuggling them from Egypt into Gaza. Dkt. 32 at 19
(Clawson Deel. <j[ 51).
In 2006, Hamas won a plurality of seats in the Palestinian
parliament, prompting "Iranian support, finances, and
arms [to] r[i]se exponentially." Id. at 16 (Clawson Deel. <j[
42). Israel's Intelligence and Terrorism Information
Center reported that Iran "pledge[d] ... $250 million to
Hamas's Prime Minister Ismail Haniya in 2006 and
2007." Id. (citing Intelligence and Terrorism Information
Center, Iranian Support of Hamas 20-21 (Jan. 2009)). In
2007, the Iran-Hamas relationship grew even closer after
... Hamas took complete control of the Gaza Strip." Id. at
17 (Clawson Deel. <j[ 43). Since 2008, "Gaza-based
Palestinian groups have fired over 8,500 rockets into
Israel," and Hamas has claimed credit for at least some of
these attacks. Dkt. 31 at 13 (Levitt Deel. <j[ 25). Iranian
officials, in tum, have claimed credit for providing
Gaza-based groups with the technical expertise to
"produce these missiles by themselves in large
quantities." Id. at 36 (Levitt Deel. <j[ 72 (citation omitted));
see also Dkt. 32 at 20-21 (Clawson Deel. <j[ 53) (detailing
multiple intercepted efforts to smuggle arms into Gaza
between 2009 and 2011 and those efforts' links to the
Iranian government); Dkt. 31 at 34-37 (Levitt Deel. <j[<j[
66, 68, 72) (detailing, from multiple intelligence sources,
Iran's provision of weapons to Hamas, specifically, from
2008 to 2012).
Around 2012, relations between Hamas and Iran cooled
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for several years as they took opposite sides of the Syrian
Civil War, with Iran backing the Syrian regime led by
Bashar Al-Assad and Hamas supporting certain rebel
groups. Dkt. 31 at 37 (Levitt Deel. CJ[ 73). "[Y]et, Iranian
funding for Hamas never completely stopped," id. (Levitt
Deel. CJ[ 74), and even as Iran decreased its support for
Hamas's political activities, its military activities were
"not as badly affected." Id. at 37-38 (Levitt Deel. CJ[ 74).
By 2014, however, relations with Iran improved and
Hamas found itself in an escalating conflict with Israel,
during which many "of the arms Hamas deployed were
the products of the Islamic Republic of Iran." Id. at 38
(Levitt Deel. CJ[ 76 (quotation marks and citation omitted)).
That year, Israel intercepted a cargo ship believed to be
headed to the Gaza Strip, carrying "40 M-302 rockets,
180 mortars, and approximately, 400,000 rounds of
ammunition," all "hidden inside crates of cement labeled
'Made in Iran.' " Id. at 14 (Levitt Deel. CJ[ 27) ( citing
Israeli Ministry of Foreign Affairs, Missile Shipment from
Iran to Gaza Intercepted, (Mar. 5, 2014),
https://mfa.gov .il/MF A/PressRoom/2014/Pages/Missile-s
hipment-from-Iran-to-Gaza-intercepted-5-Mar-2014.aspx)
. And, by 2015, Iran was reported to be sending literal
"suitcases of cash ... to Hamas'[s] military wing in Gaza,"
id. at 42 (Levitt Deel. CJ[ 84) (citation omitted), and was
reportedly continuing to "provid[e] missile technology
that Hamas used to construct its own rockets and [to]
help[ ] [Hamas] rebuild tunnels destroyed in the *340
conflict with Israel." Dkt. 31 at 39 (Levitt Deel. CJ[ 78)
(citation omitted).
Accordingly, based on the unrebutted testimony offered
by the Plaintiffs' experts, the Court finds that Iran
provided material support in the form of arms, training,
funds, and technology to Hamas at least from 2006 to
2016.
3. Iran's Material Support to P/J
PU-short for Palestinian Islamic Jihad or Al-Jihad
Al-Islami fi Filastin-grew out of a Palestinian student
movement in Cairo led, most notably, by Fathi Shiqaqi.
Dkt. 31 at 46---47 (Levitt Deel. Cj[Cj[ 90, 93). Shiqaqi,
inspired by the 1979 Iranian Revolution, "believed that a
campaign of spectacular terrorist attacks against Israel in
the name of revolutionary Islam would inspire popular
revolt" and lead to the destruction of Israel. Id.; see also
id. at 46 (Levitt Deel. CJ[ 91). PU began carrying out
attacks-financed by "Iran's mullahs"-against Israeli
soldiers in the mid-1980s. Id. at 47 (Levitt Deel. CJ[ 93). By
the 1990s, PU operatives were training at Iranian-backed
Hezbollah camps in Lebanon, under "under the
supervision" of Iranian Islamic Revolutionary Guards
stationed in that country. Id. at 48 (Levitt Deel. CJ[ 95). PU
executed "a deadly string of terrorist attacks" in Israel up
until Shiqaqi's assassination in October 1995, which
created "a void in the organization so deep that," by 1997,
"the group barely function[ed]." Id. at 50-51 (Levitt Deel.
CJ[ 101) (citation omitted). Following the collapse of
Israeli-Palestinian peace talks in 2000, PU bomb makers
and recruiters were released en masse from jail, leading to
the group's resurgence. Id. at 51 (Levitt Deel. CJ[ 102).
From September 2002 to October 2003, PU "carried out
over 440 terrorist attacks, including suicide bombings ... ,
killing over 130 Israelis and wounding approximately 880
more." Id. (Levitt Deel. CJ[ 103). The U.S. Department of
State has, accordingly, designated PU as a foreign
terrorist organization each year since 1997. Id. at 52-53
(Levitt Deel. CJ[ 107).
There is evidence that Iran has been funding PU since as
early as 1993, Id. at 54 (Levitt Deel. CJ[ 110), but Iran's
support of PU increased as PU carried out more
successful attacks in the early 2000s, id. at 53 (Levitt
Deel. CJ[ 108) (explaining Iran's promise to increase
funding for PU by 70 percent in 2002 "to cover the
expense of recruiting young Palestinians for suicide
operations" (citation omitted)); see also id. ("Tehran
instituted an incentive system in which millions of dollars
in cash bonuses are conferred to [PU] for successful
attacks."). In 2011, as the "wedge" was developing
between Hamas and Iran over the Syrian civil war, Iran
further increased its support for PU. Id. at 54-55 (Levitt
Deel. CJ[ 112).
Iran's support for PU has included "weapons, training,
and funding." Id. at 55 (Levitt Deel. CJ[ 112) (quoting U.S.
Dep't of State, Bureau of Counterterrorism, Country
Reports on Terrorism 2014 (June 2015)). In 2014, Israeli
authorities intercepted a ship carrying mortars, bullets,
and rockets "destined for Hamas and PU in Gaza" that
were packed in containers featuring "seals of the Iranian
postal company." Id. (citations omitted). This is consistent
with PU's own spokesman's acknowledgment that "[a]ll
of the weapons in Gaza are provided by Iran, be they
weapons intended for the Hamas movement or for the
PU." Id. (Levitt Deel. CJ[ 113) (citation omitted); see also
id. at 56 (Levitt Deel. CJ[ 115) (collecting statements
confirming Iran's support for PU).
In August 2014, Israel and Hamas brokered a ceasefire in
Gaza, increasing PU's interest in expanding its activities
to the West Bank. Dkt. 32 at 28 (Clawson Deel. CJ[ 67). In
mid-October 2014, PU leader *341 Ramadan Abdullah
Mohammad Shallah traveled to Tehran to meet with a
series of high-ranking Iranian officials, including
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Supreme Leader Khamenei. Id. at 28-29 (Clawson Deel.
CJ[ 68). These meetings, which took place just two weeks
before the shooting of Plaintiff Y ehudah Glick in
Jerusalem by a PU member, focused on the need for PU
to expand into the West Bank. Id. at 28 (Clawson Deel. fl
67-68).
Accordingly, the Court finds that Iran provided material
support to PU until at least the end of 2014.
B. Syria's Material Support to Barnas and PIJ
1. Overview of Syria's Proxy Strategy
Syria's government has "long held the belief that
becoming involved [in] and having a strong influence on
the dynamics of the Israeli-Palestinian conflict is an
important foreign policy interest for Syria." Dkt. 29 at 11
(Berti Deel. CJ[ 21). Syria has, since the 1970s, been ruled
by the Al-Assad family and their allies, who are members
the minority Alawi (Shia) sect. Id. at 10-11 (Berti Deel.
<j[<j[ 19-21). Accordingly, the Syrian government has had a
"constant need to legitimize its power" to both the Sunni
majority in Syria and to Sunni regimes in the region. Id.
(Berti Deel. CJ[ 20). To do so, the Syrian government has
tried to be "seen as a key champion of Palestinian rights."
Id.
This geopolitical strategy also aligns with Syria's own
interests vis-a-vis Israel. "[T]he two countries have been
in a state of latent (and at times open) conflict since
1948." Id. During the Six-Day War in 1967, Israel seized
portions of the Golan Heights, which had previously been
under Syrian control. Id. Syria has consistently demanded
"the return of the areas of the Golan Heights that have
been under Israeli control as a result of ... the Six-[D]ay
war." Id. Accordingly, while "in principle" Syria is not
opposed to "a political settlement" of Israel's conflicts
with it or the Palestinians, it has, "in practice ...
demonstrated its willingness to criticize and derail any
peace process or negotiations" that it finds to be
unfavorable. Id. at 11 (Berti Deel. CJ[ 21). For example, in
1993, "Syria became the de facto political and
communication base of all the main factions" opposing
the Oslo Accords, id. at 12 (Berti Deel. CJ[ 24), which were
a series of agreements signed between the Palestinian
Liberation Organization and Israel that created the
Palestinian Authority, Dkt. 30 at 5 (Deeb Deel. CJ[ 16). Due
in part to Syrian President Hafez Al-Assad's "personal ...
antagonism" with PLO and Fatah leader Yassar Arafat,
Syria "sponsored the creation of the Alliance of
Palestinian Forces," an umbrella group of
organizations-including both Hamas and PU-that
opposed to the Oslo Accords. Dkt. 29 at 12 (Berti Deel. <JI
24).
2. Syria's Support to Hamas
Syria's relationship with Hamas dates back to at least the
early 1990s, when Hamas "opened an office in
Damascus." Id. at 12 (Berti Deel. CJ[ 23). That relationship
was strengthened by Hamas's participation in Syria's
coordinated campaign opposing the Oslo Accords in
1993. Id. at 12-13 (Berti Deel. CJ[ 24). By the early 2000s,
Hamas had moved its political bureau to Damascus, id. at
13 (Berti Deel. CJ[ 25), and three of the group's top
leaders-all of whom were classified as Specially
Designated Global Terrorists by United States
Department of Treasury-had relocated to Damascus, id.
at 19-20 (Berti Deel. CJ[ 34). In 2002, one Israeli
newspaper reported that Syria "offer[ed] aid as an
incentive for Hamas ... to resume and intensify suicide
attacks against Israel ... , following efforts to diffuse the
conflict." Id. at 25-26 (Berti Deel. CJ[ 45) (citing Ze'ev
Schiff, Sources *342 Say Syria Pushing Hamas to
Renew Attacks, Ha'aretz (May 20, 2002), available at
http://www.haaretz.com/sources-say-syria-pushing-hamas
-to-renew-attacks-1.44698).
Until 2012, Damascus served as a "safe base," enabling
Hamas to "conduct its foreign relations, communicate to
the world, host its military leaders ... [, and] plan its
violent operations and fundraise." Id. at 15 (Berti Deel. <JI
28); see Dkt. 30 at 5-6 (Deeb Deel. CJ[ 19) (Damascus was
Hamas's "safe haven"). From its operational base in
Damascus, Hamas directed attacks in the West Bank and
Gaza, Dkt. 29 at 23 (Berti Deel. CJ[ 41), conducted foreign
relations, id. at 15 (Berti Deel. CJ[ 28), and trained
operatives at a camp near Damascus, id. at 31 (Berti Deel.
CJ[ 55). Hamas's base in Damascus "grew so powerful that
it was able to control and direct operational decisions, at
times even going against the wishes of Hamas's leaders
within Gaza." Dkt. 30 at 6 (Deeb Deel. CJ[ 19). The Syrian
regime did not "forcefully or systematically crack[ ]
down" on these activities but, instead, according to
Professor Berti, "remained supportive of Hamas' s militant
activities." Dkt. 29 at 25 (Berti Deel. <JI 45).
In addition, Hamas used its operational base in Syria to
fundraise in and to smuggle arms through that country,
providing operational support for its activities in Gaza. Id.
at 29-30 (Berti Deel. fl 52-54). Hamas's military
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commander in the West Bank, Jamal Muhammad Farah
al-Tawil, for example, received funds from Hamas leaders
in Damascus via an "ad-hoc charity set up by al-Tawil."
See id. at 29 (Berti Deel. <j[ 52). As Professor Berti further
explained, Hamas routed "weapons shipments originating
from Iran ... through Syria [ ]and from there to Gaza." Id.
at 29-30 (Berti Deel. <J[ 53). Hamas's arsenal has also
grown "through the use of parts 'thought to originate in
Syria.' " Id. at 30 (Berti Deel. <j[ 53) (citation omitted).
More generally, "Syrian sponsorship and support has
enabled Hamas ... to at times carry out military training in
Syria ... where operatives have acquired essential tactical
skills and knowledge enabling them to carry out ever
more sophisticated attacks." Id. at 31 (Berti Deel. <j[ 55).
Hamas and Syria's relationship has, however, been
"strained" since 2012 when Hamas began supporting
rebel forces against the Assad regime in the Syrian Civil
War. Dkt. 30 at 7 (Deeb Deel. <j[ 22); see Dkt. 29 at 32-33
(Berti Deel. <j[ 56) (discussing their gradual distancing
from one another). Due to the increasing violence used by
the Syrian regime against its Sunni population during the
civil war, Hamas eventually left Damascus and relocated
its political headquarters outside of Syria. Dkt. 29 at
32-33 (Berti Deel. <j[ 56). In 2016, Hamas even "publicly
denounc[ed]" Syria's "tactics and its attacks against the
civilian population." Id. at 33 (Berti Deel. <j[ 56) (citation
omitted).
Despite Hamas's falling out with Syria, the support that
Syria provided to Hamas prior to 2012 "solidified
Hamas's organizational structure and transformed it into a
leading terrorist organization with the sophistication
needed to carry out terror attacks." Dkt. 30 at 9 (Deeb
Deel. <j[ 30); see Dkt. 29 at 34 (Berti Deel. <j[ 59). And, by
"hosting [Hamas], Syria offered symbolic validation,
political support, legitimacy and freedom of [movement],
all of which enabled [Hamas] to grow and develop, to
boost regional status and credibility, as well as to increase
[its] military capabilities and solidify [itself] as [a] major
player[ ] in the Palestinian arena." Dkt. 29 at 21 (Berti
Deel. <j[ 37). ''The substantial organizational support [that]
Syria [once] provided to Hamas ... ultimately enabl[ed] it
to rise in status and sophistication." Id. at 34 (Berti Deel.
<J[ 59-60). Thus, according to Professor Berti, "the effects
of Syria's support *343 ... will continue to be relevant for
years to come." Id.
The Court therefore finds that Syria provided support, in
the form of an undisturbed operational base in that
country from which Hamas raised funds, trained
operatives, smuggled arms, and conducted its political
and foreign relations activities, until at least 2012.
3. Syria's Support to P/J
PU similarly benefitted from a safe operating base in
Syria and the political legitimacy and regional influence
that came with Syria's welcome. See id. at 21 (Berti Deel.
<j[ 37). PU established its Damascus office in 1989 and,
"[s]ince then, the group has maintained a permanent base
in Syria." Id. at 17 (Berti Deel. <j[ 32). PU leadership in
Damascus "control[led] all PU officials, activists and
terrorists in the West Bank and Gaza." Id. at 25 (Berti
Deel. <j[ 44) (quoting U.S. Dep't of Treasury, Treasury
Designates Charity Funneling Money to Palestinian
Islamic Jihad (April 5, 2005), available at
https://www.treasury.gov/press-center/press-releases/Page
s/js2426.aspx). From Damascus, PU leadership also
"conducted a vast array of communication, political,
fundraising, [and] operational activities." Id. PU, like
Hamas, has also maintained a training facility-which
reportedly also contains weapons depots-near
Damascus. Id. at 31 (Berti Deel. <j[ 55). Beyond merely
"open[ing] Damascus" to PU, the Syrian regime has, at
times, "worried about [PU] and [its] leaders' security." Id.
at 18 (Berti Deel. <j[ 34.1).
Unlike Hamas, PU aligned itself with the Syrian
government, rather than rebel factions, during the Syrian
civil war and thus continues to enjoy Syria's support. Id.
at 33 (Berti Deel. <j[ 57). Accordingly, the Court finds that
Syria has provided support to PU in the form of a safe
operational base from which it has been able to freely
fundraise, train operatives, and direct attacks until at least
2018, when Plaintiffs moved for default judgment.
C. March 8, 2016 Stabbing
1. Killing of Taylor Force
At approximately 6:20 p.m. on March 8, 2016, Bashar
Muhammad Abd al-Qader Masalha exited a mosque and
began stabbing passersby in the Port of Jaffa, just south of
Tel Aviv. Dkt. 33 at 49-50 (Spitzen Deel. <j[<j[ 128-29). He
first stabbed a couple of Russian tourists near the mosque,
id. at 50 (Spitzen Deel. <j[ 129), before moving "in the
direction of the Promeade along the Tel Aviv coast
shouting 'Allahu Akbar,' " id. Masalha approached a
group of American tourists on the boardwalk and
repeatedly stabbed Plaintiff Taylor Force (a U.S. Citizen)
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in the neck, chest and back. Id.; see also Dkt. 44 at 2 (S.
Force Deel. CJ[ 12). At the time of the attack, Taylor, a
West Point graduate and U.S. army veteran, was on a trip
to Israel with a group of M.B.A. students from Vanderbilt
University's Owen Graduate School of Management. Dkt
33 at 49 (Spitzen Deel. CJ[ 128); Dkt. 44 at 1-2 (S. Force
Deel. <j[<j[ 5, 6). He died from his injuries on the way to the
hospital. Dkt. 44 at 2 (S. Force Deel. CJ[ 12). Before
Masalha was stopped and killed by the police, he injured
ten others. Dkt. 33 at 47-48; Dkt. 33 at 51 (Spitzen Deel.
CJ[ 129).
The estate of Taylor Force (a U.S. Citizen) is a plaintiff in
this case. Dkt. 1 at 5 (Compl. CJ[ 5). His father, Stuart
Force, mother, Robbi Force, and sister, Kristen Force-all
of whom are U.S. citizens-also seek damages for the
"severe psychological, emotional and other personal
injuries" they suffered as a result of his death, including
loss of consortium and loss of solatium. Dkt. 1 at 5-6, 31
(Compl. fl 5-7, 128); see also Dkt. 42 (K. Force Deel.);
*344 Dkt. 43 (R. Force Deel.); Dkt. 44 (S. Force Deel.).
2. Attribution to Hamas
According to Colonel Arieh Dan Spitzen, an expert on
Palestinian affairs and society and Palestinian Islamic
terrorist groups, including Hamas, there is an
"unmistakable connection between the attack and the
Hamas organization." Dkt. 33 at 4, 55 (Spitzen Deel. fl 1,
144). In support of his conclusion, he offers three
observations.
First, Spitzen explains that the attack along the Tel Aviv
Promenade "b[ore] the hallmarks" of a Palestinian terror
attack incited by Hamas, id. at 61 (Spitzen Deel. CJ[ 160),
and was "part of [a] ... wave of Palestinian terror attacks
in Israel[] which began in September 2015 and continued
until the end of 2016," id. at 18-24, 51 (Spitzen Deel. <j[<j[
51-69, 130). During this "wave" of attacks, senior Hamas
leaders routinely called on "the Palestinian population to
mount attacks in the form of stabbings, vehicular
ramming attacks, and even gunfire" against Israelis. Id. at
20 (Spitzen Deel. CJ[ 57). In February 2016, Khaled
Mash'al, the leader of Hamas at the time, described these
attacks as "heroic operations of the young men and
women of the Intifada." Id. (citation omitted).
Second, Masalha's background reveals that he was
influenced by Hamas's ideology. Masalha was from the
village of Hajja. Id. at 53-55 (Spitzen Deel. <j[<j[ 136,
138-143). Spitzen, who reviewed Masalha's Facebook
page, testified that "during the months immediately
preceding the terrorist attack" Masalha displayed an
"increasing religious fervor." Dkt. 104 at 64 (Spitzen).
For instance, "he listened for a long period of time" to the
sermons of Sheikh Arifi, a member of the Muslim
Brotherhood ( of which Hamas is a branch), who espoused
"radical Islamic religious" ideology consistent with that
of Hamas. Id. at 65 (Spitzen); Dkt. 33 at 54-55 (Spitzen
Deel. <j[<j[ 139, 143). From Masalha's Facebook activity,
Spitzen deduced that, "about a month before the attack,
Masalha was already publicly acknowledging that he
sought to die as a shahid [martyr]." Dkt. 33 at 55 (Spitzen
Deel. CJ[ 141).
Finally, and most significantly, Hamas took responsibility
for the attack. See id. at 55-56 (Spitzen Deel. CJ[ 144). The
day of the attack, photos and messages from Masalha' s
Facebook account were posted to the P ALINFO website,
which is identified with Hamas. Id. at 56-57 (Spitzen
Deel. CJ[ 147). Two days later, a banner was posted on the
same website, stating: "Hamas announces that its son, the
Shahid and holy warrior [Mujahid in Arabic] Bashar
Muhammad Masalha, carried out the heroic stabbing
operation in Jaffa, in which a Zionist was killed and 10
others injured." Id. (Spitzen Deel. <j[<j[ 145-147). Masalha's
connection to Hamas and the movement was made even
clearer at his funeral. Id. at 58 (Spitzen Deel. CJ[ 150).
According to Spitzen, mourners "were seen bearing
Hamas flags and enthusiastic cries of support for Ahmad
Yassin, founder of Hamas, were heard." Id. The funeral
included "speeches praising Masalha's operation." Id.
"Palestinian Authority security forces[ ] also arrested a
number of the funeral's participants as part of a series of
arrests of open Hamas supporters." Id. at 58-59 (Spitzen
Deel. CJ[ 150).
In light of the above, the Court concludes that Taylor
Force was the victim of a Hamas terror attack.
D. January 27, 2016 Stabbing
I. Stabbing of Menachem Mendel Rivkin
At around 11:00 p.m. on January 27, 2016, a
seventeen-year-old boy named Abada (Ubada) Abu Ras
attacked Plaintiff *345 Menachem Mendel Rivkin
("Menachem")-an American citizen-with a knife in the
town of Givat Ze' ev. See Dkt. 72 at 1 (M. Rivkin Deel. fl
1-3); see also Dkt. 104 at 69 (Spitzen). Menachem and
his wife had parked their car at a gas station and were
walking to the restaurant next door. Dkt. 71 at 1 (B.
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Rivkin Deel. 'II 3). Unbeknownst to them, Abu Ras had
been following them. Id. Abu Ras appeared "[s]uddenly,
out of nowhere," and stabbed Menachem two times in the
upper left side of his back with a 16 cm knife that he had
concealed in his clothing and then fled the scene. Dkt. 72
at 1 (M. Rivkin Deel. 'II 3); Dkt. 33 at 62-63 (Spitzen
Deel. 'II'II 163, 165). The attack happened so fast that
Bracha did not even see Abu Ras before he was running
away. Dkt. 71 at 1 (B. Rivkin 'II 4). Menachem called out
that he had been stabbed and collapsed on the ground. Id.
at 2 (M. Rivkin Deel. 'I[ 4). His wife ran to get help and
"pounded on the door" of the restaurant. Dkt. 71 at 1-2
(B. Rivkin Deel. 'II 5). Menachem was eventually "rushed
into an ambulance" and taken to Sha'are Tzedek Hospital.
Dkt. 72 at 2 (M. Rivkin Deel. '11'115-6). Abu Ras attempted
to flee the scene but was overpowered by other people
present and handed over to security forces when they
arrived. Dkt. 33 at 63 (Spitzen Deel. 'I[ 165).
As a result of his wounds, Menachem lost consciousness
for one-and-a-half days. Id. at 2 (M. Rivkin Deel. 'l['I[ 6-7);
see also Dkt. 71 at 2 (B. Rivkin Deel. 'I[ 10). He suffered
"massive internal bleeding." Dkt. 72 at 2-3 (M. Rivkin
Deel. '11'118, 11); see also Dkt. 73-1 at 1 (Friedman Medical
Report). Menachem was treated in the ICU for four days
and was discharged from the hospital after eight days. Id.
at 2 (M. Rivkin Deel. 'II 9); see also Dkt. 73-1 at 2
(Friedman Medical Report). Afterwards, Menachem
remained at home for three months because of his "weak
physical and emotional state." Dkt. 72 at 3 (M. Rivkin
Deel. 'II 12). During this time, he continued to experience
difficulty breathing and was twice hospitalized for
breathing complications arising from the attack. Id. at 3
(M. Rivkin Deel. 'I[ 12). To this day, Menachem "often
experience[s] terrible pain" in the location of his scar
from the stabbing. Id. at 3 (M. Rivkin Deel. 'I[ 14). The
attack still "haunts" him psychologically as well. Id. at 3
(M. Rivkin Deel. 'II 15); see also Dkt. 35-38 at 7 (Strous
Psychiatric Evaluation of M. Rivkin).
The attack also deeply affected Menachem' s wife and
children, all of whom are also plaintiffs in this action.
Bracha Rivkin, Menachem' s wife, who is an Israeli
citizen, alleges that the attack caused her "severe
emotional and psychological injuries." Dkt. 1 at 21
(Compl. 'II 79). She was six months pregnant at the time.
Dkt. 71 at 1 (B. Rivkin 'II 2). Bracha and Menachem's
children-S.S.R., M.M.R., R.M.R., and S.Z.R.-all of
whom are American citizens, also seek damages for their
mental and emotional anguish. See Dkt. 1 at 30-31
(Compl. 'II 127); Dkt. 71 at 3-4 (B. Rivkin Deel. 'l['I[ 15,
17-22) (describing effect of attack on their children); Dkt.
72 at 4--5 (M. Rivkin Deel. 'l['I[ 18-22) (same).
2. Attribution to Hamas
Based on Abu Ras's background and statements
published on Hamas websites after the attack, Colonel
Spitzen attests that the stabbing of Menachem Rivkin was
linked to Hamas. See Dkt. 33 at 61-72 (A. Spitzen Deel.
'11'11162-187).
To begin, Spitzen explains that the attack was planned in
advance. Spitzen relies, in particular, on two photos that
Abu Ras uploaded to his Facebook page before the attack.
The first, posted "[s]everal days prior to the attack,"
showed him "masked and sitting in a car with emojis of
*346 smiley faces and knives." Id. at 64 (Spitzen Deel. 'I[
169). The second, posted the night of the attack, was
accompanied by the following caption: "I ask Allah to
grant me the Shahada (death of shahid-martyrdom)." Id.
at 62 (Spitzen Deel. 'II 163). According to Spitzen, these
posts show that Abu Ras "inten[ded] to execute the attack
during which he was hoping to die" as a martyr. Id. Abu
Ras, moreover, had confided his plan to his cousin. Id. He
originally intended to stab an Israeli soldier "at an IDF
checkpoint (known as Al-Jib Crossing), not far from his
village, near Givat Ze'ev." Id. (Spitzen Deel. 'I[ 164).
When Abu Ras arrived at the checkpoint, however, he
"noticed that the soldiers . . . were inside the guard post
which made it more difficult ... to attack them," so "he
turned along a side path to a gas station in Givat Ze'ev in
order to find a Jew, stab him[,] and kill him." Id. at 62-63
(Spitzen Deel. 'I[ 164).
Spitzen further opines that Abu Ras carried out the attack
because of his Hamas ideology. Abu Ras's father, Aziz
Mustafa Abd al-Qader Abu Ras, is a "known Hamas
operative," who has been "arrested several times by the
Israeli security forces." Id. at 66 (Spitzen Deel. 'I[ 173). In
fact, Aziz Abu Ras was among the "450 Hamas members
deported in 1992" to Lebanon who are considered the
"fathers of the Hamas organization." Dkt. 104 at 69-70
(Spitzen). At the evidentiary hearing, Spitzen testified,
moreover, that it is clear that Hamas's ideology was also
deeply ingrained in Abu Ras. Id. at 70-71 (Spitzen).
Based on the forensic evidence in Abu Ras's police file,
Spitzen noted that Abu Ras's Facebook page "looks like a
Hamas website." Id. Prior to the attack, he had uploaded
multiple posts expressing admiration for the perpetrators
of terrorist attacks (including stabbings) and his desire to
die as a martyr. Dkt. 33 at 67-68 (Spitzen Deel. 'I[ 174).
He also "posted photographs that indicate[d] support for
Hamas, [and] support for the Izz a-Din al-Qassam
Brigades," including pictures of "himself carrying the
Hamas flags." Dkt. 104 at 71 (Spitzen).
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Multiple other sources confirm Abu Ras's connection to
Hamas. On the day of the attack, a photo was posted to a
Hamas-affiliate website depicting Abu Ras holding a
Hamas flag. Dkt. 33 at 68 (Spitzen Deel. <JI 176).
According to Spitzen, "Hamas social media" also made
Abu Ras's affiliation "crystal clear," with references such
as, "[l]ike father like son." Dkt. 104 at 72 (Spitzen).
Finally, on Abu Ras's own website, which was eventually
taken down, a "statement appears in which [ ] Hamas took
responsibility and called him a son of the movement." Id.
Although Hamas "wouldn't take official responsibility"
during the period of time that these statements of support
appeared, Spitzen explains that this was to protect Abu
Ras. Id. at 73 (Spitzen). Had Hamas claimed
responsibility, Abu Ras would have faced an additional
count in his indictment for "membership [in] an illegal
organization. Id. By suspending its claim of
responsibility, Hamas enabled Abu Ras to accept a plea
bargain in which the "count of membership in a terrorist
organization" was not included. Id.
In light of the above, Spitzen opines that Abu Ras
"identif[ied] with Hamas and its ideology[ ] and
committed the [attack] in response to the call of the
organization." Dkt. 33 at 69-70 (Spitzen Deel. <JI 178).
The Court credits Spitzen' s testimony and concludes that
Abu Ras carried out the stabbing in furtherance of
Hamas's ideology and terrorist agenda.
E. October 13, 2015 "Bus 78 Massacre"
1. Killing of Richard Lakin
On the morning of October 13, 2015, two Hamas
operatives, Bilal Omar Mahmoud *347 Abu Ghanem and
Bahaa' Muhammad Khalil Alyan, boarded Egged bus
number 78 in the Armon Hanatziv neighborhood of
Jerusalem. Dkt. 33 at 24--25 (Spitzen Deel. <JI 70). Abu
Ghanem was armed with a gun, and Alyan carried a knife.
Id. at 27 (Spitzen Deel. <JI 74). They hid their weapons
under their clothing and waited for the bus to pick up
other passengers. Id. at 32 (Spitzen Deel. <JI 83). When the
bus became full, Abu Ghanem proceeded to the back,
where he shot passengers at close range. Id. (Spitzen
Deel. <JI 84). Alyan used his knife to stab passengers near
the front of the bus. Id. Survivors later reported that the
two shouted, "Alluh Akbar" while attacking passengers,
an expression "of the superiority of Allah and His ones"
that is "frequently used ... by Islamist terrorists." Id. at 33
(Spitzen Deel. <JI 84 & n.41).
When the bus driver realized what was happening, he
stopped the bus and opened the doors so that passengers
could escape. Id. (Spitzen Deel. <JI 85). Abu Ghanem and
Alyan shut the doors, however, and continued to stab and
shoot the passengers trapped inside. Id. Colonel Spitzen
testified that, even after "the bullets in the gun had been
depleted and the knife had broken inside one of the
passenger's bodies," Abu Ghanem and Alyan "tried to
suffocate the passengers with their bare hands." Dkt. 104
at 58 (Spitzen). The massacre ended when Border Police
officers and patrol policemen arrived at the scene and shot
both men, killing Alyan. Dkt. 33 at 24-25 (Spitzen Deel.
<JI 70).2
Nine passengers were injured and two died, including
Richard Lakin. Id. (Spitzen). Lakin was shot in the head
and stabbed in the stomach. Id. (Spitzen). He was taken to
the hospital unconscious and in critical condition. Id.
(Spitzen). Two weeks later, on October 27, 2015, Lakin
succumbed to his injuries. Id. (Spitzen). The estate of
Richard Lakin (a U.S. Citizen), is a plaintiff in this case.
Dkt. 1 at 7 (Compl. <JI 16). His son, Micah Lakin Avni,
and daughter, Manya Lakin-both of whom are U.S.
citizens-also seek damages for the "severe
psychological, emotional and other personal injuries" they
suffered as a result of his death, including loss of
consortium and loss of solatium. Id. at 31 (Compl. <JI 128);
see also Dkt. 54 (Manya Lakin Aff.); Dkt. 55 (Micah
Lakin Aff.).
2. Attribution to Hamas
The Bus 78 massacre was part of a wave of terror attacks
that began in September 2015, in the midst of the Jewish
High Holidays. Dkt. 33 at 25 (Spitzen Deel. <JI 71).
Although Alyan did not have any known Hamas
affiliation, Abu Ghanem was a known Hamas operative,
who had been imprisoned from September 2013 to
October 2014 for his involvement in the Islamic Bloc, the
student wing of Hamas. Id. at 48 (Spitzen Deel. <JI 126);
see also id. at 35-36 (Spitzen Deel. <J[<J[ 91, 94-96); Dkt.
104 at 63 (Spitzen). During his 2013 police interrogation,
Abu Ghanem also admitted that he had "relations with
senior members of the military wing of Hamas," one of
whom was his cousin. Dkt. 104 at 59-60 (Spitzen).
Hamas, for its part, publicly claimed Abu Ghanem as an
operative of the organization on its website and referred
to him as a Hamas prisoner. Dkt. 33 at 38 (Spitzen Deel. <JI
100). After the bus attack, Hamas published that Abu
Ghanem was a "commander in the Islamic Bloc at
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Al-Quds University in Abu Dis." Id.
*348 Abu Ghanem denied principal responsibility for the
attack, however, after he was captured. He gave the
following account: The night before the attack, Alyan
visited him at work and told him that he (Alyan) had
20,000 shekels for purchasing a firearm to carry out a
terror attack. Id. at 26-27 (Spitzen Deel. <J[ 73). The two
were not previously acquainted. Id. at 29 (Spitzen Deel. <J[
78). Abu Ghanem agreed to take part if Alyan obtained
the weapon. Id. at 27 (Spitzen Deel. <J[ 73). The two men
met again the next morning at Abu Ghanem' s workplace,
where they found a knife to use during the attack. Id.
(Spitzen Deel. <J[ 74). Later that same morning, Abu
Ghanem visited Alyan's work place, where Alyan showed
him the firearm that Alyan had purchased the night before
and how to operate it. Id. Before boarding Egged bus
number 78, the men agreed that Alyan would carry the
knife and Abu Ghanem would carry the gun. Id. Because
Alyan was shot and killed by the police, Abu Ghanem's
statement is the only source of information regarding the
planning and execution of the attack. Id. at 28 (Spitzen
Deel. <J[ 75).
Colonel Spitzen opines that Abu Ghanem' s account is
unreliable. In Colonel Spitzen' s expert opinion, "Abu
Ghanem stood to benefit by placing most of the
responsibility for initiating and planning the attack upon
his dead partner." Id. By pleading ignorance, Abu
Ghanem was also able to "conceal details that might harm
[Hamas], its modes of operations[,] and its operatives."
Id. at 29 (Spitzen Deel. <J[ 77). Moreover, Colonel Spitzen
testified at the evidentiary hearing that Abu Ghanem' s
version of events is directly undermined by his conduct
during the attack itself.
First, Colonel Spitzen explained that it was implausible
that Abu Ghanem "[had seen] the gun for the first time
about half an hour prior to the terrorist attack[ ] and
received oral instructions ... how to use the gun." Dkt. 104
at 61 (Spitzen). Abu Ghanem "shot 14 bullets without
stopping," and "[h]e hit the torsos of the passengers
exactly where he directed the bullets." Id. (Spitzen). In
Colonel Spitzen's expert opinion, Abu Ghanem displayed
the skill of a "highly trained" shooter. Dkt. 104 at 61
(Spitzen). Colonel Spitzen further testified that, given
"the dynamics of terrorist attacks" and "the
socioeconomic status of [Abu Ghanem] and [Alyan]," it is
also implausible that Alyan purchased the firearm for
20,000 shekels ($6,000 USD). Id. at 62 (Spitzen). That
would have been the equivalent of six-months' salary. Id.
(Spitzen). Instead, Colonel Spitzen concluded that, given
the expense and difficulty of procuring a gun and bullets,
"it is quite clear and conceivable" that the money "came
from a Hamas source," and the weapon was likely
"purchased from an accomplice of Hamas." Id. (Spitzen).
Second, Colonel Spitzen observes that the sophistication
of the attack belied Abu Ghanem' s statement that he had
met Alyan only the night before and that the men had not
previously planned or trained to carry out the attack. As
Colonel Spitzen notes in his declaration, the fact that the
two men were able quickly to trap passengers inside the
bus and attempted to flee the scene by driving the bus
demonstrates a high level of planning and forethought. Id.
at 29-30 (Spitzen Deel. <J[ 78). Abu Ghanem, moreover,
"carried out the attack [in the manner] of a person who
was highly trained, [and] who had received training and
knew how to use the gun." See Dkt. 104 at 61 (Spitzen).
And given that "[ o ]ne cannot even go do target practice in
the geographical areas where [Abu Ghanem] and [Alyan]
reside" because of the presence of Israeli soldiers,
Colonel Spitzen concludes that Abu Ghanem must have
been "driven to isolated areas" to train, which requires
"accomplices" and which *349 "cost[s] a great deal of
money." Id. at 63 (Spitzen). Based on the above, Colonel
Spitzen draws the following conclusions:
[T]he acquaintance between Alyan and Abu Ghanem
was much deeper than what the latter described in his
interrogation[ ]; [t]he planning of the attack was more
thorough and extensive than what Abu Ghanem was
willing to admit in his interrogation, and it is highly
likely that the funding of the attack, the acquisition of
the weapons were used during the attack, and the
training towards it were all done within the framework
of a structured organization, in this case, Abu
Ghanem' s Organization, Hamas.
Dkt. 33 at 30-31 (Spitzen Deel. 'II 79).
The Court credits Colonel Spitzen's testimony. Given
Abu Ghanem' s documented membership in Hamas, the
sophistication of the attack (which involved the purchase
of a firearm and an escape plan), and the skill with which
Abu Ghanem wielded his firearm, the Court finds that, at
the very least, Hamas provided Abu Ghanem the
necessary training to carry out the attack. That would be
consistent with Hamas's practice of recruiting Islamic
Bloc operatives to join the ranks of its operational
terrorist arm, the Izz al-Dinn al-Qassam Brigades. Id. at
38 (Spitzen Deel. 'I[ 109). It is likely, moreover, that Abu
Ghanem was, in fact, a member of Hamas' s operational
terrorist arm at the time of the attack and engaged in the
attack at its behest. Indeed, shortly after the attack, an
official spokesman of Hamas "issued calls to carry out
further attacks similar to the Bus 78 massacre." Id. at 48
(Spitzen Deel. 'II 126).
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F. October 28, 2014 Shooting
1. Injury to Yehudah Glick
At approximately 10:00 p.m. on October 29, 2014,
Mu'taz Ibrahim Khalil Hijazi shot Plaintiff Yehudah
Glick several times at close range as Glick was leaving
the Menachem Begin Heritage Center in Jerusalem. Dkt.
33 at 122 (Spitzen Deel. <j[ 316). Glick is a known public
advocate for the right of all people-and those of Jewish
faith in particular-to pray at the Temple Mount. Id.
(Spitzen Deel. <j[ 317). At the time of the attack, Glick was
a U.S. citizen, see Dkt. 82-7 (Passport), but he has since
"renounced his American citizenship" after being elected
to the Israeli Knesset, Dkt. 1 at 6 (Compl. <j[ 12). On the
day of the attack, Glick was attending a conference that
he had organized on behalf of the Temple Mount Heritage
Foundation at the Menachem Begin Heritage Center. Dkt.
33 at 122 (Spitzen Deel. <j[ 317). Hijazi, was employed as
an assistant chef at the Center. Id. at 123 (Spitzen Deel. <j[
318). That evening, surveillance cameras captured Hijazi
leaving the Center by scooter at 9:37 p.m. and returning
half an hour later to the courtyard. Id. (Spitzen Dec. <j[
319).
When the conference ended, Glick exited the Center and
headed to his car. Id. (Spitzen Deel. <j[ 320). Hijazi
approached Glick on his scooter and said, "I am shooting
you because you are an enemy of Al Aqsa." Dkt. 52 at 4
(Y. Glick Deel. <j[ 20). He then shot Glick four times in the
center of his body. Id. (Y. Glick Deel. <j[ 21). After the
attack, Hijazi fled by scooter. Dkt. 33 at 122 (Spitzen
Deel. <j[ 316). He was later identified, apprehended, and
killed in a shootout with the police on the morning of
October 30, 2014. Id. at 124-25 (Spitzen Deel. <j[<j[
323-24).
Glick was brought to the hospital in critical condition. Id.
at 123 (Spitzen Deel. <j[ 320). The shooting caused
"significant injury to [his] liver, spine, and small and
large intestines," and the bullets also "punctured a lung,
entered [his] throat, and damaged one of [his] hands."
Dkt. 52 at 4 (Y. Glick Deel. <j[ 24). He was placed in *350
a medically induced coma for ten days and stayed at the
hospital for twenty-five days. Id. at 5 (Y. Glick Deel. <j[<j[
25-26, 32). Glick attests that, to this day, he experiences
"continual anxiety" and "constant pain in [his] arm, back
and abdomen." Id. at 7 (Y. Glick Deel. <j[ 46).
The attack also deeply affected Glick' s family members.
The estate of his wife, Y affa Glick, and his children and
foster children, Neria David Glick, Shlomo Glick, Hallel
Glick, S.G., R.T. and T.T., are also plaintiffs in this
action. Dkt. 1 at 6-7 (Compl. <j[<j[ 12-15). R.T. and T.T. are
Israeli citizens. Dkt. 87 at 41. The rest of the family
members are U.S. citizens. They allege that they suffered
"severe psychological and emotional injuries" as a result
of the attack and, specifically, in coping with its
aftermath. Dkt. 1 at 22 (Compl. <j[ 85).
2. Attribution to PIJ
Colonel Spitzen opines, based on police reports of the
incident and Hijazi's background, that "[t]he assassination
attempt on Y ehuda[h] Glick was a planned, premediated
terrorist attack" by a PU operative. Dkt. 33 at 125
(Spitzen Deel. <j[ 325). Colonel Spitzen notes that Hijazi's
conduct during the attack was "calculated" and
"show[ed]" expertise. Id. (Spitzen Deel. <j[ 326). Hijazi
"specifically targeted Glick," a Jewish advocate; he
purposefully left the Center "before the conference
concluded, most likely in order to bring [his] weapon;" he
shot Glick multiple times at point blank range; he calmly
"escaped the scene of the attack on his scooter;" and he
"revealed his combat skills and self-control when the
security forces came to arrest him, and "[h]e climbed a
tall vantage point-the house roof-from which he tried
to shoot the forces." Id. at 125-26 (Spitzen Deel. <j[<j[
325-27). According to Colonel Spitzen, Hijazi likely
joined PU while he was incarcerated. Hijazi served a total
of eleven years for setting fire to electrical cabinets in
Jerusalem for "nationalist reasons," id. at 127 (Spitzen
Deel. <j[ 331), and for multiple assaults he committed
against prison guards and fellow prisoners while he was
incarcerated, id. at 127 (Spitzen Deel. <j[ 332). Court
documents from his case reveal that, as early as 2004, a
prison service officer testified that Hijazi belonged to PU.
Id. at 127-28 (Spitzen Deel. <j[ 333). As Colonel Spitzen
explains, "[i]t is extremely common for prisoners to join
terror organizations while serving time in Israeli prisons."
Id. at 128 (Spitzen Deel. <j[ 334).
Colonel Spitzen further attests, based on his review of
social media affiliated with PU, that PU claimed credit for
the attack. See id. at 128 (Spitzen Deel. <j[ 335)
("Immediately after the assassination attempt ... , media
outlets, internet web sites (including web sites identified
with the Palestinian Islamic Jihad), and Palestinian
Islamic Jihad senior leaders-all referred to [Hijazi] as an
operative of the [PU] operational arm, known as the
Saraya al-Quds (Al-Quds Brigades)."). Notably, after the
attack, the Al-Quds Brigades' website published a poster
"depicting [Hijazi] with Fathi Shiqaqi, the [PU] historic
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leader and founder in the background." Id. at 129 (Spitzen
Deel. <J[ 338). On October 31, 2014, the day after Hijazi
was killed, PU "organized a march in Gaza in support of
... [Hijazi]," which included the "burning of Israeli and
American flags." Id. at 130 (Spitzen Deel. <J[ 341). The
Al-Quds Brigades' website went so far as to publish the
following statement on January 4, 2015: "Our martyr, the
mujahid Mu'taz Hijazi, son of Jerusalem, guardian of the
will of his teacher, martyr Fathi Shiqaqi, on the 19th
anniversary (of his demise), has taken revenge on those
who tried to harm and befoul the Al-Aqsa Mosque." Id. at
139-40 (Spitzen Deel. <J[ 338).
*351 In light of the above, the Court concludes that the
assignation attempt on Y ehudah Glick was carried out by
a PU operative.
G. August 19, 2011 Rocket Attack
l. Physical Injury to Schmuel Brauner
Between August 18th and 22nd of 2011, Hamas and other
terrorist organizations fired "Grad rockets" from the Gaza
Strip into Israel. Dkt. 33 at 106-07 (Spitzen Deel. <J[<J[
278-281); Dkt. 104 at 76 (Spitzen). More than 100
rockets were fired over this four-day period, affecting
civilians in "Israeli communities near the border of the
Gaza Strip." Dkt. 33 at 107-08 (Spitzen Deel. <J[ 280). The
attack was part and parcel of Hamas's strategy to inflict
terror on Israeli civilians after Israel imposed restrictions
on the flow of goods and persons from the Gaza Strip
following Hamas's takeover of Gaza in 2007. See id. at
96-97 (Spitzen Deel. <J[<J[ 252-53). Colonel Spitzen
describes "Hamas's policy with respect to rocket
launching" as follows:
The organization itself fired rockets and allowed other
organizations to fire rockets toward communities in
Israel when such actions were in line with its objectives
at a given time. On the other hand, it forced its
operatives and the operatives of other organizations to
respect ceasefires when it suited its goals.
Id. at 98 (Spitzen Deel. <J[ 256). This period of rocket
attacks, for example, ended when Egypt helped broker a
ceasefire. Id. (Spitzen Deel. <J[ 257).
On the morning of August 19, 2011, two rockets landed
near a synagogue in Ashdod, where Plaintiff Schmuel
Brauner was attending services. Dkt. 39 at 2 (S. Brauner
Deel. <J[ 7). The first missile landed but did not explode.
Id. The second missile exploded in the synagogue's
courtyard, injuring Schmuel and several others. Id.; Dkt.
87 at 56; Dkt. 33 at 107-08 (Spitzen Deel. <J[ 280) .
According to Schmuel, he and other civilians ran out of
the synagogue when the first missile landed. Dkt. 39 at 2
(S. Brauner Deel. <J[ 7). Before he could reach cover,
however, the second missile landed and exploded within
four meters of him. Id. As a result of the explosion,
shrapnel entered his back and exited through his stomach.
Id. Schmuel was immobile and "in excruciating pain," but
he never lost consciousness. Id. (S. Brauner Deel. <J[<J[ 7-8).
He was taken to Kaplan Medical Center in Rehovot. Id.
(S. Brauner Deel. <J[ 10). His physical injuries included "a
ruptured kidney, lacerations to his bowel and small
intestine," and other shrapnel wounds to his right thigh
and knee. Dkt. 87 at 56. Schmuel spent ten days in the
hospital, during which he endured several surgeries. Id.
To this day, he suffers physical discomfort as well as
psychological and emotional trauma. See id.; Dkt. 35-5
(Dr. Rael Stous Medical Rpt.).
The attack also severely impacted Brauner's family. His
wife, Nechama Brauner, and parents, Mordechai and
Esther Brauner-all of whom are U.S. citizens-seek
solatium damages for their mental and emotional anguish
as a result of Shmuel's injuries. Dkt. 87 at 80-81; see also
Dkt. 35-2 (N. Brauner Psych. Eval.); Dkt. 35-3 (E.
Brauner Psych. Eval.), Dkt. 35-4 (M. Brauner Psych.
Eval.). Shmuel and Nechama Brauner also bringing
claims for solatium damages on behalf of their minor
children, C.Y.B., M.H.B., and Y.A.L.B., Dkt. 1 at 9
(Compl. <J[<J[ 28-29), all of whom are Israeli citizens,' Dkt.
87 at 88. *352 C.Y.B. was not yet a year old when his
father was injured. Dkt. 35-6 at 1. M.H.B. and Y.A.L.B.
were born after the attack. Id. Nechama attests that, as a
result of the attack, Shmuel is mostly absent from his
children's lives, and this has "greatly affected their
upbringing." Dkt. 38 at 5 (N. Brauner Deel. <J[ 26).
2. Attribution to Hamas
Several terrorist organizations based in the Gaza Strip
fired rockets towards Israel during the period of time
when the rocket attack on the Ashdod Synagogue took
place, and the identity of the specific terrorist group that
launched the particular missile causing Shmuel Brauner's
injuries is unclear. Dkt. 33 at 112 (Spitzen Deel. <J[<J[
292-93). In fact, more than one terrorist organization has
claimed responsibility for the attack because it was
"considered a success"-"a direct hit on the synagogue[,]
... caus[ing] extensive damage to property and people, and
. .. receiv[ing] wide coverage in the media." Id. (Spitzen
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Deel. CJ[ 293). The Court credits Colonel Spitzen's
conclusion, however, that Hamas was ultimately
responsible for the attack, id. at 113 (Spitzen Deel. CJ[ 295),
based on the fact that Hamas "was-and still is-the only
authority in sole and effective control of everything that
happens within the Gaza strip," id. (Spitzen Deel. CJ[ 296).
According to Colonel Spitzen, Hamas enforced its
authority "over the other terrorist organizations strictly,
effectively, and aggressively, in such a manner that any
firing began or ended on its orders." Id. (emphasis
added). Spitzen persuasively concludes that, even if
another terrorist organization had launched the rocket that
injured Schmuel, it must have received authorization from
Hamas before doing so. See Dkt. 104 at 76 (Spitzen)
("Hamas which controls the Gaza Strip is the only party
that enables or facilitates the firing of these missiles.").
The Court, accordingly, finds that Hamas was ultimately
responsible for the August 19, 2011 rocket attack that
injured Schmuel Brauner.
H. November 21, 2012 Rocket Attack
1. Emotional Injury to Daniella, Noa, Dana, and A.
Parnas
Between November 14, 2012 and November 21, 2012,
terrorist groups operating in the Gaza Strip launched
approximately 1,500 rockets at civilian targets in Israel
during "Operation Pillar of Defense," a military operation
carried out by the Israeli Defense Forces in the Gaza
Strip. Dkt. 33 at 114-15 (Spitzen Deel. CJ[ 301); Dkt. 104
at 76-77 (Spitzen). The onslaught of missile attacks
"started as a result of the assassination ... of ... a very
senior ranked terrorist, Ahmad J abari, who was the chief
of staff of Hamas." Dkt. 104 at 77 (Spitzen). According to
the bomb disposal expert's report and police reports, a
122 mm Grad rocket landed in Timorim, Israel, Dkt. 33 at
114 (Spitzen Deel. CJ[ 300-01), a village "approximately 40
kilometers aerially from the Gaza Strip" on November 21,
2012, at 10:18 a.m., Dkt. 140 at 76-77 (Spitzen); Dkt. 33
at 114-15 (Spitzen Deel. CJ[ 300). The rocket hit the home
of Plaintiff Daniella Schwadron Parnas,4 where she
resided with her three *353 children, Noa Parnas, Dana
Parnas, and A.P. Dkt. 33 at 114 (Spitzen Deel. CJ[ 300);
Dkt. 69 at 1 (D. Parnas Deel. CJ[ 5). Their home sustained
"heavy damage." Dkt. 33 at 114 (Spitzen Deel. CJ[ 300).
The explosion left the home with no roof and broken
windows. Dkt. 69 at 4 (Daniella Parnas Deel. CJ[ 32).
Plaintiffs Daniella Schwadron Parnas, Noa Parnas, Dana
Parnas, and A.P., all of whom are U.S. citizens, Dkt.
82-22; Dkt. 82-23; Dkt. 83-24, seek damages for the
"severe psychological and emotional injuries" they
suffered as a result of the November 21, 2012 rocket
attack on their home, Dkt. 1 at 28 (Comp. CJ[ 112). None of
the Parnas plaintiffs suffered any physical injuries, see id.,
nor were they at home when the rocket struck, see Dkt. 69
at 1-2 (Daniella Parnas Deel. CJ[CJ[ 7-12). Each has,
nevertheless, submitted a declaration and a psychiatric
evaluation attesting to his or her psychological harm. See
Dkt. 67 (Dana Parnas Deel.); Dkt. 69 (Daniella Parnas
Deel.); Dkt. 70 (N. Parnas Deel.); Dkt. 35-32 (A.P. Psych.
Eval.); Dkt. 35-33 (Dana Parnas Psych. Eval.); Dkt. 35-34
(Daniella Parnas Psych. Eval.); Dkt. 35-35 (N. Parnas
Psych. Eval.).
Daniella attested that, at the time of attack, she was
running an errand at a nearby supermarket. Dkt. 69 at 1-2
(Daniella Parnas Deel. CJ[CJ[ 8-9). When the rocket siren
sounded, and she was "forced to run for cover" at a
nearby bomb shelter. Dkt. 1 at 27 (Compl. CJ[ 110). She
then "heard a very loud 'BANG' " and knew that a rocket
had fallen nearby. Dkt. 69 at 2 (Daniella Parnas Deel. CJ[
10). Upon leaving the shelter, she saw a tree burning and
"immediately" realized the fire was coming from her
house. Id. (Daniella Parnas Deel. CJ[ 11). Daniella attested
that she was "terrified" because her 82-year-old mother
was still inside her own home, which "is connected" to
Parnas's "house by a door." Id. at 1-2 (Daniella Parnas
Deel. CJ[CJ[ 5, 13). Parnas's mother was later found "standing
in the hallway [of her home] in a state of shock and
confusion." Id. at 2 (Parnas Deel. CJ[ 14). Parnas's
psychiatric evaluation revealed that she initially felt
"overwhelming anxiety and fright," and now experiences
"symptoms of depression, anxiety and PTSD following
the shock and stress" of the incident. Dkt. 35-34 at 2, 7
(Daniella Parnas Psych. Eval.).
Daniella's daughters, Noa and Dana were both serving in
the army at the time of the attack. Dkt. 69 at 1 (Daniella
Parnas Deel. CJ[ 7). Dana watched online as her "entire
house [went] up in flames." Dkt. 67 at 1 (Dana Parnas
Deel. CJ[ 5). She then called Noa to tell her about the
incident. Dkt. 70 at 2 (Noa Parnas Deel. CJ[ 8). Both were
"hysterical" after the attack, Dkt. 35-33 at 2 (Dana Parnas
Psych. Eval.); Dkt. 70 at 2 (Noa Parnas Deel. CJ[ 9), and
their psychiatric evaluations reveal that they now suffer
from depression and anxiety as a result, Dkt. 35-33 at 2
(Dana Parnas Psych. Eval.); Dkt. 35-5 at 5 (N. Parnas
Psych. Eval.).
Finally, A.P. was seven years old at the time of the
November 21, 2012 rocket attack. Dkt. 35-32 at 1 (A.P.
Psych. Eval.). He was staying with a nearby relative at the
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time. Dkt. 69 at 1 (Pamas Deel. 'I[ 7). A.P.'s psychological
evaluation found that, after the attack, he suffered from
anxiety that affected his social and school functioning.
Dkt. 35-32 at 4 (A.P. Psych. Eval.). A.P. has "improved
considerably," but his anxiety will continue to affect "his
social and academic functioning." Id. at 4-5.
2. Attribution to Hamas
The rocket that blew up the Pamas's home was fired on
the last day of "Operation *354 Pillar of Defense." Dkt.
33 at 114-15 (Spitzen Deel. 'I[ 301). Due to the direct hit
and the media attention that the attack garnered, multiple
organizations came forward to claim credit for the attack,
including the Izz a-Din al-Qassam Brigades, the
operational wing of Hamas. Id. at 116 (Spitzen Deel. 'I['![
304-05). In Colonel Spitzen's expert opinion, however,
"Hamas's responsibility for the attack is not contested."
Id. at 117 (Spitzen Deel. 'I[ 306). To the contrary, Spitzen
concludes, based on the timing of the attack and Hamas's
control of the Gaza Strip, the the rocket attacks during
that period were "the direct result of ... decisions and
directives issued by the Hamas leadership." Id. As noted
above, Hamas initiated the rocket attacks because Israel
killed "Ahmad Ja'abri, the head of Hamas's operational
terrorist wing." Id. at 115 (Spitzen Deel. 'I[ 302). The same
day that Israel killed Ja'abri, "Hamas gave a greenlight to
all of the [terrorist] organizations in the Gaza Strip to
start" Operation Pillar of Defense. Dkt. 104 at 77
(Spitzen). The Court credits Colonel Spitzen's expert
opinion that Hamas authorized the attack and finds Hamas
responsible the rocket launch that destroyed Plaintiffs
Daniella Pamas, Noa Pamas, Dana Parnas, and A.P.'s
home.
I. March 6, 2008 Shooting at Merkaz HaRav Yeshiva
1. Attack
On March 6, 2008, at approximately 8:30 p.m., Ala'
Hisham Abu Dheim, a 26-year-old Izz al-Din al-Qassam
Brigades operative, entered the Merkaz HaRav Yeshiva in
Jerusalem. Dkt. 33 at 72 (Spitzen Deel. 'I[ 188). He was
armed with a Kalashnikov assault rifle with nine
compatible magazines, two guns (a Beretta pistol and an
FN pistol) with four compatible magazines, and a
commando knife. Id. (Spitzen Deel. 'I[ 189); see also Dkt.
104 at 84 (Spitzen). On his way to the Yeshiva, Abu
Dheim concealed his weapons in a cardboard box and
exploited the fact that there was no security guard at the
entrance at the time. Dkt. 33 at 72-73 (Spitzen Deel. 'I[
189).
Before Abu Dheim even entered the building, he opened
fire on Yeshiva students in the front plaza with his
Kalashnikov assault rifle, killing one student and injuring
several others. Id. at 73, 86 (Spitzen Deel. 'I['![ 190, 223).
He then shot through the windows of the building at two
students standing inside near the entrance and shot them
again to ensure that they were dead. Id. at 86 (Spitzen
Deel. 'I[ 224). Upon entering the building, Abu Dheim shot
two students descending the stairs. Id. He then proceeded
toward the library, opening fire on students standing
outside. Id. at 73 (Spitzen Deel. 'I[ 190). The sound of
gunshots and shouts of a terrorist attack preceded Abu
Dheim's arrival in the library, so students had time to
attempt to hide. Id. at 86-87 (Spitzen Deel. 'I['![ 225-26).
When Abu Dheim arrived at the library, he launched a
"systematic massacre." Id. at 73 (Spitzen Deel. 'I[ 190);
Dkt. 104 at 84-85 (Spitzen). According to eyewitnesses,
Abu Dheim sought out students who were hiding behind
bookshelves and shot them. Dkt. 33 at 73-74 (Spitzen
Deel. 'I[ 191). Eyewitnesses also recount that he operated
with the "skill and precision of a trained and cold-hearted
assassin" and that he "exhibit[ed] control handling his
weapons, speedily load[ing] and reload[ing] magazines
while shooting and accurately targeting" the victims "at
long and close range." Id. Captain David Shapira, an
officer in the Paratroopers Brigade who lived near the
Yeshiva, and Rabbi Yitzhak Dadon, a student at the
Yeshiva at the time, both attempted to stop Abu Dheim.
Id. at 73-74 (Spitzen Deel. 'I[ 192). Eventually, Captain
Shapira shot and killed Abu Dheim. Id. The entire
event-from the time he began *355 killing until when he
had been taken out-lasted between ten and fifteen
minutes. Id. (Spitzen Deel. 'I[ 193). Eight boys, mostly
high school students, were killed, including Plaintiff
A vraham David Moses. Id. In addition, ten students were
wounded, including Plaintiff Naftali Shitrit. Id.
2. Killing of Avraham David Moses
A vraham David Moses was studying with his friend,
Segev A vihail, when the attack began. Id. at 87 (Spitzen
Deel. 'I[ 227). The boys were alerted to the attack by the
shouts and burst of gunfire outside the building and
attempted to hide under a "table/shelf' near the library
entrance. Id. Based on the bullet marks on the floor, the
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boys were likely shot and killed from a close range while
hiding huddled together in this location. Id. According to
Rabbi Dadon's timeline, it is "highly probable" that the
boys were in their hiding space for seven to eight minutes
before they were killed. Id. (Spitzen Deel. <J[ 228).
Avraham was sixteen years-old. Id. at 74 (Spitzen Deel. <J[
193).
The estate of Avraham David Moses (a U.S. citizen), is a
plaintiff in this case. Dkt. 1 at 8 (Compl. <J[ 19). His
mother, Rivkah Martha Moses; father, Naftali Andrew
Moses; step-father, David Moriah; siblings, Elisha Dan
Moses, N.M., C.M., O.D.M., and A.M.; step-brother,
Aviad Moriah-all of whom are U.S. citizens-as well as
his step-siblings, Z.G.M., Hagit Gibor Moriah, Eitan Yoel
Moriah, Yifat Moriah, and Atara Nesia Moriah-all of
whom are Israeli citizens-also seek damages for the
"severe psychological, emotional and other personal
injuries" they suffered as a result of his death, including
loss of consortium and loss of solatium. Id. at 7-8, 31
(Compl. <J[<J[ 18-23, 128).
3. Injury to Naftali Shitrit
Plaintiff Naftali Shitrit, a U.S. citizen, Dkt. 84-4 at 1, was
a high school student at the time of the attack. Dkt. 76 at 1
(N. Shitrit Deel. <J[ 3). Upon hearing gunshots, Naftali "hid
behind one of the stacks in the library"----one of the last in
the room. Id. at 2 (N. Shitrit Deel. <J[ 6). He realized that
"the gunman was systematically going from one stack to
the next" when he heard "gunshots, then shouts and
screams, then silence from the stacks near [him]." Id. (N.
Shitrit Deel. <J[ 7). After coming across Naftali's hiding
place, Abu Dheim shot Naftali multiple times. Id. Naftali
was brought to the hospital in critical condition, and he
was unconscious for a week. Id. at 3 (N. Shitrit Deel. <J[
24, 26). Five months after the attack, he traveled to the
U.S. for additional reconstructive surgery. Id. at 5 (N.
Shitrit Deel. <J[ 46). To this day, Naftali suffers severe and
permanent physical and emotional injuries. Id. at 5-7 (N.
Shitrit Deel. <J[<J[ 48-53).
Naftali is a plaintiff in this case, as are his mother, Gila
Rachel Shitrit (a U.S. citizen); father, Yaakov Shitrit (an
Israeli citizen); and siblings, Meiri Shitrit, Oshrat Shitrit,
N.S., Y.S., A.S., E.S., and H.S. (all of whom are U.S.
citizens). Dkt. 1 at 8-9 (Compl. <J[<J[ 24-27). His family
members seek damages for the mental and emotional
anguish they suffered as a result of his injuries. See id. at
31 (Compl. <J[ 128).
4. Attribution to Hamas
The Court credits Colonel Spitzen's conclusion that
Hamas was responsible for the March 6, 2008, shooting at
the Yeshiva. Colonel Spitzen identifies two specific
reasons for his conclusion. First, and foremost, Hamas
claimed credit for the attack. Id. at 78-82 (Spitzen Deel.
<J[<J[ 202-13). An anonymous Hamas official immediately
contacted Reuters, acknowledging that Hamas was
responsible. Id. at 78 (Spitzen Deel. <J[ 202). Following
that announcement, Abu Ubeida, the spokesman of the Izz
al-Din *356 al-Qassam Brigades, suspended the
organization's claim of responsibility, but neither
affirmed nor denied responsibility. Id. He stated, instead,
that "[t]he time has not yet come for claiming
responsibility." Id. The official claim for responsibility by
the Izz al-Din al-Qassam Brigades came two years after
the attack, in a December 25, 2010 press conference with
Abu Ubeida. Id. at 78 (Spitzen Deel. <J[ 203); Dkt. 104 at
88-89 (Spitzen). According to Colonel Spitzen, the delay
is consistent with Hamas's policy of delaying a claim of
responsibility out of consideration for the security of other
Hamas operatives and accomplices. Dkt. 33 at 79 (Spitzen
Deel. <J[ 204).
Second, Colonel Spitzen concludes, based on eyewitness
accounts of the account and police statements, that Abu
Dheim "had been well trained and was not acting alone."
Dkt. 33 at 74 (Spitzen Deel. <J[ 194). According to Spitzen,
"all stages of the attack were 'meticulously planned' "
and "demonstrate characteristics of organized attacks
carried out by terrorist organizations, like Hamas." Id.
The Yeshiva, for example, "was a strategic target that was
carefully selected ... because of its prominence as a
learning institutes for religious studies and its location, at
the main entrance to Jerusalem." Id. at 75 (Spitzen Deel. <J[
196). Moreover, the sophistication of the attack indicates
that "[c]areful intelligence and logistic preparations were
made prior to the attack, including intelligence gathering,
acquisition of a variety of weapons, shooting practice and
concealing the weapons on the way to the target." Id.
The Court, accordingly, finds that the Merkaz HaRav
massacre was conducted by Hamas.
III. CONCLUSIONS OF LAW
Under the Foreign Sovereign Immunity Act, 28 U.S.C. §
1604, a foreign state, including its instrumentalities, is
immune from suit in state or federal court unless the case
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falls within an express statutory exception. See Kilburn v.
Socialist People's Libyan Arab Jamahiriya, 376 F.3d
1123, 1126 (D.C. Cir. 2004). For present purposes, the
sole relevant exception is found in the "state-sponsored
terrorism exception," 28 U.S.C. § 1605A, which both
confers subject matter jurisdiction on federal district
courts to hear certain terrorism-related claims, see 28
U.S.C. § 1330(a), and recognizes a federal cause of action
against those foreign states subject to the exception, see
Owens, 864 F.3d at 764-65. The FSIA also addresses
personal jurisdiction and specifies precise procedures that
a plaintiff must follow-at times with the assistance of
the clerk of the court and the U.S. Department of
State-to effect service on a foreign state. See 28 U.S.C. §
1608.
The Court must satisfy itself that an FSIA plaintiff has
cleared each of these hurdles, even if the defendant fails
to appear. First, because the FSIA deprives courts of
subject-matter jurisdiction in the absence of a relevant
exception, a failure to appear does not waive the defense
and the courts are "obligated to consider sua sponte"
whether they have jurisdiction hear the case and to order
any relief. Gonzalez v. Thaler, 565 U.S. 134, 141, 132
S.Ct. 641, 181 L.Ed.2d 619 (2012); see also Verlinden
B. V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493 n.20,
103 S.Ct. 1962, 76 L.Ed.2d 81 (1983) (even where a
defendant foreign state does not appear, the Court "still
must determine that immunity is unavailable"). Second,
with respect to the substance of a plaintiffs' state or
federal law claims, as noted above, the FSIA precludes
courts from entering a default judgment against a foreign
state unless the court is satisfied that the plaintiff has
established her "right to relief by evidence satisfactory to
the court." *357 28 U.S.C. § 1608(e); see also Owens,
864 F.3d at 784-86. And, because "the entry of a default
judgment is not automatic," courts must "satisfy
[themselves] that [they have] personal jurisdiction before
entering judgment against an absent defendant." Mwani,
417 F.3d at 6 (footnote omitted).
Each of these inquiries, in turn, implicates a slightly
different standard of proof. To establish subject-matter
jurisdiction, an FSIA "plaintiff bears an initial burden of
production to show [that] an exception to immunity, such
as § 1605A, applies." Owens IV, 864 F.3d at 784.
"Although a court gains jurisdiction over a claim against a
defaulting defendant when a plaintiff meets his burden of
production, the plaintiff must still prove his case on the
merits." Id. To do so, the plaintiff must "establish his ...
right to relief by evidence satisfactory to the court." 28
U.S.C. § 1608(e). This provision's "protection against an
unfounded default judgment" does not altogether "relieve[
] the sovereign from the duty to defend" but, nonetheless,
requires that the plaintiff offer "admissible evidence"
sufficient to "substantiate [the] essential element[s]" of
her claim. Owens N, 864 F.3d at 785-86 (quotations
omitted). Finally, to establish personal jurisdiction over a
defaulting defendant, the plaintiff must make "a prima
facie showing of [personal] jurisdiction." Mwani, 417
F.3d at 6-7.
As explained below, the Court concludes that it has
subject-matter jurisdiction over Plaintiffs' claim and
personal jurisdiction over the Islamic Republic of Iran,
MOIS, and the Syrian Arab Republic.5 The Court also
concludes that the U.S. national plaintiffs have carried
their burden of establishing a right to relief under the
federal cause of action established in § 1605A, and that
the Israeli plaintiffs-with the exception of M.H.B. and
Y.A.L.B.-have carried their burden of establishing a
right to relief under the law of Israel. Finally, the Court
will defer until the damages stage the determination
whether each of the plaintiffs has established the
necessary familial relationship to recover individual
damages and, if so, the damages to which each is entitled.
A. Subject-Matter Jurisdiction and Liability for §
1605A(c) Claims
"[T]he [federal] district courts have original
jurisdiction" over "any nonjury civil action against a
foreign state" asserting "any claim for relief in personam
with respect to which the foreign state is not entitled to
immunity under" the FSIA. 28 U.S.C. § 1330(a). The
Court, accordingly, has subject-matter jurisdiction over
the present "nonjury civil action" against Iran if, and only
if, the conditions for the waiver of immunity found in 28
U.S.C. § 1605A are satisfied. As explained below,
Plaintiffs have carried their burden of establishing the
Court's subject-matter jurisdiction.
Under the state-sponsored terrorism exception, 28 U.S.C.
§ 1605A(a)(l), a foreign state is not immune from the
jurisdiction of the federal and state courts in cases in
which
[ (1) ] money damages are sought against a foreign
state [ (2) ] for personal *358 injury or death [ (3) ] that
was caused by [ (4) ] an act of torture, extrajudicial
killing, aircraft sabotage, hostage taking, or the
provision of material support or resources for such an
act if such act or provision of material support or
resources is [ (5) ] engaged in by an official, employee,
or agent of such foreign state while acting within the
scope of his or her office, employment, or agency.
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28 U.S.C. § 1605A(a)(l). The exception, moreover,
applies only to suits in which two additional requirements
are met. First, the claimant or victim must be a U.S.
national, a member of the U.S. armed forces, or a U.S.
government employee or contractor at the time the act of
terrorism occurred. 28 U.S.C. § 1605A(a)(2)(A)(ii).
Second, the foreign state must be designated as a state
sponsor of terrorism both at the time the act occurred ( or
was so designated as a result of the act) and at the time
the lawsuit was filed ( or was so designated within the
six-month period preceding the filing of the suit).6 Id. §
1605A(a)(2)(A)(i)(I); see also Owens IV, 864 F.3d at
763---64.
Several of the conditions for subject-matter jurisdiction
are easily addressed in this case. First, Plaintiffs expressly
seek only monetary relief, costs and expenses, and
attorneys' fees. See Dkt. 1 at 35 (Compl. Prayer). Second,
Iran and Syria were designated as a state sponsors of
terrorism in 1984 and 1979, respectively, see 49 Fed. Reg.
2836-02 (Jan. 23, 1984) (statement of Secretary of State
George P. Shultz) (Iran); Gates v. Syrian Arab Republic,
646 F.3d 1, 2 (D.C. Cir. 2011) (Syria), and remain so
designated to this day, see U.S. Dep't of State, State
Sponsors of Terrorism, available at
https://www.state.gov/j/ct/list/c1415l.htm (last visited
May 25, 2020). Moreover, because the MOIS is properly
considered "an integral part" of the "foreign state[ ]" of
Iran's "political structure," TMR Energy Ltd., 411 F.3d at
300 (quoting Transaero, Inc., 30 F.3d at 151), and
because § 1605A focuses on whether "the foreign state
was designated" -and not whether each named defendant
was separately designated-the Court concludes that the
designation of Iran as a state sponsor of terrorism is
sufficient to satisfy the designation requirement as to both
defendants. See 28 U.S.C. § 1605A(a)(2)(A)(i)(I). Third,
at the time the relevant acts occurred, all eleven of the
direct victims and thirty-four of the family members were
U.S. nationals (the Court will address the Israeli national
plaintiffs below). See supra Part II.C-1.
As a result, the only substantial jurisdictional question left
for the Court is whether Plaintiffs' claims are for
"personal injury or death that [were] caused by ... act[s] of
torture, extrajudicial killing ... hostage taking, or the
provision of material support or resources" by an
"official, employee, or agent of' Iran or Syria. 28 U.S.C.
§ 1605A(a)(l). For the reasons explained below, the
Court concludes as follows: (1) Hamas and PIJ committed
acts of "extrajudicial killing" within the meaning of the
International Convention Against the Taking of Hostages
and the Torture Victim Protection Act; (2) because the
Pamases' claims are for emotional harms arising out of an
attempted extrajudicial killing in which no one was
injured (and none of the Pamases were even placed
physical peril), they cannot state a claim for recovery for
their injuries; (3) *359 Iranian and Syrian officials and
their agents provided "material support or resources" for
the extrajudicial killings that caused Plaintiffs' injuries
within the meaning of 18 U.S.C. § 2339A; and (4) Iran
and Syria's provision of material support caused the
injuries or deaths of the eleven victims. Plaintiffs' claims
against Iran and Syria, therefore, fall within the
state-sponsored terrorism exception of 28 U.S.C. §
1605A(a)(l).
l. "Personal Injury or Death ... Caused By"
Defendant's Conduct
The FSIA effects a waiver of sovereign immunity for
claims seeking to recover for "personal injury or death
that was caused by" certain terrorist acts or the provision
of material support for such acts. 28 U.S.C. §
1605A(a)(l). Plaintiffs Taylor Force, Menachem Rivkin,
Yehudah Glick, Richard Lakin, Avraham Moses, Naftali
Shitrit, and Shmuel Brauner all died or suffered
significant physical injuries as a result of terrorist attacks
committed by Hamas or PIJ, Dkt. 44 at 2 (S. Force Deel. CJ[
12); Dkt. 39 at 2-3 (S. Brauner Deel. Cj[Cj[ 7-14); Dkt. 52 at
4-5 (Yehudah Glick Deel. CJ[CJ[ 21-26); Dkt. 66 at 4 (N.
Moses Deel. CJ[ 29); Dkt. 54 at 1 (M. Lakin Deel. CJ[ l); Dkt
72 at 1 (M. Rivkin Deel. CJ[ l); Dkt. 76 at 2-3 (N. Shitrit
Deel. CJ[Cj[ 9-10, 21-26), and their claims to recover for
those injuries satisfy the personal injury requirement of §
1605A(a)(l). Because the statute is understood to
encompass claims by family members of those injured or
killed for the distress caused by their relative's injuries,
also known as solatium actions, see 28 U.S.C. §
1605A(c); see also Salzman v. Islamic Republic of Iran,
No. 17-1745, 2019 WL 4673761 at *12 (D.D.C. Sept. 25,
2019), the relatives of Taylor Force, Menachem Rivkin,
Yehudah Glick, Richard Lakin, Avraham Moses, Naftali
Shitrit, and Shmuel Brauner also satisfy the personal
injury requirement of § 1605A(a)(l). Family members
seeking solatium damages are considered to be bringing a
particular variety of an intentional infliction of emotional
distress claim, see Oveissi v. Islamic Republic of Iran, 879
F. Supp. 2d 44, 54-55 (D.D.C. 2012) ("Oveissi If'), and
are considered to be bringing "claims for personal injury,"
id. at 55. Thus, the Pamases, who seek to recover for the
purely emotional harm they suffered based on an
intentional infliction of emotional distress theory of
liability, similarly advance a claim for "personal injuries"
caused by the Defendants' provision of material support.
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Force v. Islamic Republic of Iran, 464 F.Supp.3d 323 (2020)
2. Hamas and PIJ's Acts of Extrajudicial Killing
To fall within the FSIA's waiver of sovereign immunity,
Plaintiffs' "personal injur[ies] or death[s]" must also have
been "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)(l). The FSIA looks to the Torture Victims
Protection Act of 1991 ("TVPA") to define "extrajudicial
killing." 28 U.S.C. § 1605A(h)(7). Under the TVPA,
"extrajudicial killing" means
a deliberated killing not authorized by a previous
judgment pronounced by a regularly constituted court
affording all the judicial guarantees which are
recognized as indispensable by civilized peoples. Such
term, however, does not include any such killing that,
under international law, is lawfully carried out under
the authority of a foreign nation.
TVPA, Pub. L. No. 102-256, § 3(a), 106 Stat. 73. As the
D.C. Circuit has explained, this definition "contains three
elements: (1) a killing; (2) that is deliberated; and (3) is
not authorized by a previous judgment pronounced by a
regularly constituted court." Owens N, 864 F.3d at 770.
*360 a. Killing or Attempted Killing
To begin, the March 8, 2016 stabbing, October 13, 2015
bus massacre, and March 6, 2008 shooting, which
resulted in the deaths of Taylor Force, Richard Lakin, and
Avraham David Moses, respectively, indisputably
constitute extrajudicial killings. No one, however, was
killed in the October 29, 2014 shooting, the January 27,
2016 stabbing, or the 2011 and 2012 rocket attacks. See
supra Parts 11.F, D, G-H. That then poses the question of
whether the TVP A's definition of extrajudicial killings
reach attacks in which no one died. In other words: does
the statute cover attempts? Decisions from this district
and from other jurisdictions have held that it does. See,
e.g., Karcher v. Islamic Republic of Iran, 396 F. Supp. 3d
12, 58 (D.D.C. 2019); Gill v. Islamic Republic of Iran,
249 F. Supp. 3d 88, 99 (D.D.C. 2017).
Although the text of § 1605A does not address attempts,
courts resolve statutory "ambiguities flexibly and
capaciously" in light of the text, history, and remedial
purpose of the statute to compensate those injured in
terrorist attacks. Van Beneden v. Al-Sanusi, 709 F.3d
1165, 1167 & n.4 (D.C. Cir. 2013). The statute permits
recovery for "personal injur[ies] or death ... caused by ...
an act of ... extrajudicial killing." 28 U.S.C. §
1605A(a)(l). Several decisions from this district have
held that individuals who are injured but not killed in an
attack that results in the death of others may recover for
their injuries under § 1605A. See, e.g., Karcher, 396 F.
Supp. 3d at 58; Salzman v. Islamic Republic of Iran, No.
17-2475, 2019 WL 4673761, at *12 (D.D.C. Sept. 25,
2019); Estate of Doe v. Islamic Republic of Iran, 808 F.
Supp. 2d 1, 6, 14 (D.D.C. 2011); Cohen v. Islamic
Republic of Iran, 238 F. Supp. 3d 71, 81 (D.D.C. 2017);
Haim v. Islamic Republic of Iran, 784 F. Supp. 2d 1, 11
(D.D.C. 2011). Those injuries were, in the ordinary sense,
"caused by" the "act of .. . extra judicial killing" -a
bombing, for example, might kill some of the victims and
maim others. See Salzman, 2019 WL 4673761 at *12. In
that scenario, both sets of victims would suffer "personal
injury or death ... caused by an act of ... extrajudicial
killing," 28 U.S.C. § 1605A(a)(l)-that is, to continue the
example, the bombing was, in fact, an act of extrajudicial
killing and that act caused both the deaths and the
injuries. "Congress enacted the terrorism exception
expressly to bring state sponsors of terrorism ... to account
for their repressive practices," Han Kim, 774 F.3d at
1048, and that rationale extends to both injured and killed
victims, see Salzman, 2019 WL 4673761, at *12.
Although a closer question, the Court is also persuaded
that the waiver of sovereign immunity includes attempted
extrajudicial killings that result in serious physical
injuries, even if no one is killed in the attack. As Judge
Kollar-Kotelly explained in Karcher v. Islamic Republic
of Iran, "[t]he text of Section 1605A(a)(l) does not
expressly address attempts to commit acts that are listed
in that provision," but it does "strip[] immunity" both for
"personal injury or death that was caused by an act of ...
extra judicial killing . .. or the provision of material
support or resources for such an act." 396 F. Supp. 3d at
57-58. "Nothing on the face of Section 1605A(a)(l),"
Judge Kollar-Kotelly continued, "requires that the
material support or resources for an intended extrajudicial
killing actually result in someone's death, as long as the
victim represented in the case was injured." Id. Finding
further support in both the legislative history of the statute
and the D.C. Circuit's admonishment that the FSIA be
"interpret[ed] ... flexibly and capaciously," Judge
Kollar-Kotelly held that "material support for an
incomplete act of extrajudicial killing *361 falls within
the scope of Section 1605A(a)(l)." Id. at 57 (alteration in
original). Several courts others have taken this same
approach, "f[inding] that mJunes resulting from
'deliberated' attempts to kill fall within the scope of
Section 1605A(a)(l)." Id. at 58; see also Schertzman
Cohen v. Islamic Republic of Iran, No. 17-1214, 2019
WL 3037868, at *3 (D.D.C. July 11, 2019); Gill, 249 F.
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Force v. Islamic Republic of Iran, 464 F.Supp.3d 323 (2020)
Supp. 3d at 99.
Here, the attacks on Rivkin, Glick, and Brauner were
brutal and, in each case, evidenced an intent to kill.
Rivkin was stabbed twice in his upper torso with a 16 cm
knife, Dkt. 33 at 62 (Spitzen Deel. <j[ 163); Dkt. 72 at 2
(M. Rivkin Deel. <j[<j[ 6-7), and he lost consciousness for a
day and a half, Dkt. 72 at 2 (M. Rivkin Deel. ff 6-7).
Glick was shot four times and suffered injuries to his
liver, spine, intestines, lung, ribs, hand, and throat. Dkt.
52 at 4 (Yehudah Glick Deel. <j[ 24). He was placed in a
medically induced coma for 10 days. Id. at 5 (Y ehudah
Glick Deel. <j[<j[ 25-26). Brauner survived the rocket attack,
but suffered grievous wounds; a piece of shrapnel entered
his back and exited through his stomach, rupturing his
kidney and requiring its removal along with that of part of
his colon. Dkt. 39 at 2-3 (S. Brauner Deel. ff 7-8,
10-11). Compensating the victims of such brutal attacks,
which were designed to cause the victims' deaths, to
inflict suffering, and to inspire terror, directly furthers the
purpose of the terrorism exception to the FSIA. Van
Beneden, 709 F.3d at 1167 & n.4 ("Guided by the
[FSIA's] text and purpose, we interpret its ambiguities
flexibly and capaciously").
At least on the present record and based on the current
briefing, however, the Court is not persuaded that the
terrorism exception is sufficiently capacious to include
the missile attack that struck the Parnases' house and
caused them related emotional distress. That missile did
not kill or wound anyone. See Dkt. 67 at 1-2 (D. Parnas
Deel. <j[<j[ 5, 8). Nor were any of the Parnas Plaintiffs
home-or even in the immediate vicinity-when the
missile struck. See Dkt. 69 at 1-2 (Daniella Parnas <j[<j[
7-11). Concluding that the terrorism exception permits
federal district courts to assert jurisdiction over foreign
states in these circumstances would constitute a
substantial expansion on the law as applied to date and
threatens to open the door to a broad array of claims that
Congress never contemplated.
Although courts must, in general, resolve jurisdictional
questions before reaching the merits, Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83, 101--02, 118 S.Ct. 1003,
140 L.Ed.2d 210 (1998), in the present context, the
questions of jurisdiction and the merits merge. The
jurisdictional test and the federal cause of action are, in
relevant respects, the same, see Foley v. Syrian Arab
Republic, 249 F. Supp. 3d 186, 205 (D.D.C. 2017)
(explaining that § 1605A(c) "creates a cause of action for
the same conduct that gives rise to jurisdiction under the
terrorism exception"), and the identical language found in
§ 1605A(c) and § 1605A(a)(l) must be given the same
effect, see Erlenbaugh v. United States, 409 U.S. 239,
243, 93 S.Ct. 477, 34 L.Ed.2d 446 (1972) ("[A]
legislative body generally uses a particular word with a
consistent meaning in a given context."). Thus, if the
Parnases' claims fail under § 1605A(c), they also fail
under § 1605A(a)(l).
Section 1605A(c) does not itself provide the "substantive
basis" for claims brought under the FSIA private right of
action. Maalouf v. Islamic Republic of Iran, No. 16-0280,
2020 WL 805726, at *5 (D.D.C. Feb. 18, 2020). Courts
must, instead, "rely on well-established principles *362 of
law, such as those found in the Restatement (Second) of
Torts and other leading treatises, as well as those
principles that have been adopted by the majority of state
jurisdictions to outline the boundaries of [plaintiffs']
theories ofrecovery." Id. (quoting Oveissi II, 879 F. Supp.
2d at 54) (alteration in original). Here, Plaintiffs allege
that the Parnases "suffered severe psychological,
emotional and other personal injuries as a result of the
2012 [t]errorist [r]ocket [a]ttack." Dkt. 1 at 30 (Compl. <j[
127). The closest common-law analogues to that claim
that the Court can discern are claims for intentional
infliction of emotional distress or for assault, but neither
claim is established on the facts present here.
As explained in the Restatement (Second) of Torts, "[o]ne
who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is
subject to liability for such emotional distress, and if
bodily harm to the other results from it, for such bodily
harm." Restatement (Second) of Torts § 46. "[A]n act of
terrorism ... is by its very nature considered extreme and
outrageous conduct." Reed v. Islamic Republic of Iran,
845 F. Supp. 2d 204, 212 (D.D.C. 2012); see also Belkin
v. Islamic Republic of Iran, 667 F.Supp.2d 8, 22 (D.D.C.
2009). The Parnases, moreover, have offered evidence of
their severe emotional distress. See, e.g., Dkt. 35-32
(Strous Report concerning A.P.); Dkt. 35-33 (Strous
Report concerning Dana Parnas); Dkt. 35-34 (Strous
Report concerning Daniella Parnass); Dkt. 35-35 (Strous
Report concerning Noa Parnas). The problem they face,
however, is that § 1605A(c) does not establish a
stand-alone federal law tort for intentional infliction of
emotional distress; rather, as applicable here, it creates a
tort "for personal injury or death that was caused by an
act of ... extrajudicial killing." 28 U.S.C. §§ 1605A(a)(l)
& (c). "[W]ell-established principles of law," then, fill the
interstices of that federal law claim. Maalouf, 2020 WL
805726, at *5 (quoting Oveissi II, 879 F. Supp. 2d at 54).
The Court must, accordingly, look to the tortious conduct
at issue-material support for an act of extrajudicial
killing-and apply the Restatement to that conduct.
Under the Restatement, "conduct which is tortious
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Force v. Islamic Republic of Iran, 464 F.Supp.3d 323 (2020)
because intended to result in bodily harm"-for present
purposes, "intended to result in" the extrajudicial killing
of innocent people-"does not make the actor liable for
an emotional distress which is the only legal consequence
of his conduct." Restatement (Second) of Torts § 47. To
be sure, the destruction of the Parnases' home was, in
some sense, a "legal consequence of' Hamas's conduct.
But the FSIA does not provide a stand-alone claim for
injuries to property or emotional distress resulting from
such a loss. See 28 U.S.C. § 1605A(d) (permitting
recovery for "foreseeable property loss" only after a
successful claim for personal injury has been brought). As
a result, in the absence of some "personal injury or death"
resulting from the rocket attack, 28 U.S.C. § 1605A(a),
established principles of law do not support a claim for
emotional distress alone resulting from that attack.7 In this
important respect, the Parnases' claims differ from those
of Rivkin, Glick, and Brauner, who were all the targets of
attempted extrajudicial killings and who each suffered
grave physical injuries, thus supporting their claims and
the claims of *363 their family members for emotional
distress damages.
Victims of failed attempts to inflict bodily harm do have a
remedy under tort law (and, at least at times, under the
FSIA), but it is under an assault (rather than intentional
infliction of emotional distress) theory, and it provides
recovery only for "emotional distress [that] consists of an
apprehension of the immediate infliction of an intended
harmful or offensive contact." Restatement (Second) of
Torts § 47 cmt. a (citing Restatement (Second) of Torts §
21- 34). To prevail on an assault theory for attempted
extrajudicial killing under the FSIA, a plaintiff must show
that the "(1) [defendants] acted intending to cause a
harmful contact with, or an imminent apprehension of
such a contact by, those attacked[,] and (2) those attacked
were thereby put in such imminent apprehension."
Schertz.man Cohen, 2019 WL 3037868, at *5 (quoting
Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24, 35
(D.D.C. 2012)) (alterations in original). None of the
Parnases, however, were home or even in the immediate
vicinity at the time of the attack, nor do they assert that
they were put in "imminent apprehension" of physical
harm. See Dkt. 69 at 1-2 (Daniella Parnas 'l['l[ 7-11).
The Court is, therefore, unpersuaded on the current record
and briefing that the FSIA' s terrorism exception should be
construed to encompass attempted extrajudicial killings in
which no one suffered physical injuries and no one was
even placed in imminent apprehension of physical harm.
Permitting recovery under such circumstances would
open the door to a cascade of claims for emotional
distress that are unmoored to the types of grievous injury,
death, or imminent, life-altering peril resulting from the
uniquely heinous acts that Congress elected to redress:
torture, extrajudicial killing, aircraft sabotage, and
hostage taking. 28 U.S.C. 1605A(a)(l). Absent some
evidence that Congress intended to open that door-or
even briefing on the question-the Court will not do so.
b. Deliberated
With respect to the remainder of the Plaintiffs' claims,
they must show that the attacks that caused their injuries
were "deliberated," in order to qualify as an "extrajudicial
killing." "A 'deliberated' killing is simply one undertaken
with careful consideration, not on a sudden impulse."
Owens v. Republic of Sudan, 174 F. Supp. 3d 242, 263
(D.D.C. 2016) ("Owens III") (citing Webster's Third New
International Dictionary 596 (1993); 4 The Oxford
English Dictionary 414 (2d ed. 1989); Black's Law
Dictionary 492 (9th ed. 2009)), ajf'd, 864 F.3d 751 (D.C.
Cir. 2017), vacated in part and remanded on other
grounds sub nom. Opati v. Republic of Sudan, - U.S.
--, 140 S.Ct. 1601, 206 L.Ed.2d 904 (2020). Here,
there is ample evidence that the attacks in question were
planned. For example, more than one of the perpetrators
had expressed their desires to die as martyrs on social
media in advance of the attacks, see, e.g. , Dkt. 33 at 55
(Spitzen Deel. 'I 141) (discussing attacker that killed
Taylor Force); id. at 67 (Spitzen Deel. 'l[ 174), and one
even posted a photo of himself "masked and sitting in a
car with emojis of smiley faces and knives" "[s]everal
days prior to the attack" in which he stabbed one of the
Plaintiffs, id. at 64 (Spitzen Deel. 'l[ 169) (discussing
Menachem Rivkin's attacker). Similarly, Colonel Spitzen
explained that the Bus 78 attack was the product of
significant planning, training, and forethought, given the
efficiency with which the two attackers were able to trap
and kill passengers. Id. at 29-30 (Spitzen Deel. 'll 78);
Dkt. 104 at 61 (Hrg. Tr. 61:2-25). With respect to the
shooting of Yehudah Glick, Colonel Spitzen explained
that the *364 evidence demonstrated that "[t]he
assassination attempt .. . was a planned, premeditated
terrorist attack." Dkt. 33 at 125 (Spitzen Deel. 'l[ 325).
Similarly, Colonel Spitzen explained that the attack on the
yeshiva was "meticulously planned," "demonstrate[d]
characteristics of organized [terrorist] attacks" and
showed signs of "careful intelligence and logistic
preparations ... made prior to the attack." Id. at 74-75
(Spitzen Deel. 'll'll 194, 196).
The rocket attacks were also "deliberated." According to
Colonel Spitzen, Hamas has a "policy with respect to
rocket launching" and does so-or permits other
Gaza-based groups to do so-only "when such actions
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[are] in line with its objectives." Id. at 98 (Spitzen Deel. <JI
256); see also id. at 113 (Spitzen Deel. <JI 296) (explaining
that Hamas enforced its authority "over the other terrorist
organizations strictly, effectively, and aggressively, in
such a manner that any firing began or ended on its
orders" (emphasis added)). In particular, the 2011 attack
on the synagogue was part of coordinated rocket
campaign during a particularly active period of conflict
with Israel. See id. at 106-07 (Spitzen Deel. <j[<j[ 278-80).
Finally, there is no evidence whatsoever that any of these
attacks were authorized "by a prior judgment affording
judicial guarantees o[f] due process," Foley, 249 F. Supp.
3d at 202; see also Owens IV, 864 F.3d at 770, or that it
was "lawfully carried out under the authority of a foreign
nation." TVPA § 3(a). To the contrary, for several of the
attacks, either Hamas or PU, both non-state actors,
claimed credit. Dkt. 33 at 55-56 (Spitzen Deel. <JI 144)
(Taylor Force); id. at 38 (Spitzen Deel. <JI 100) (Bus 78
massacre); id. at 128 (Spitzen Deel. <JI 335) (Yehudah
Glick); id. at 78 (Spitzen Deel. <JI 202) (March 2008
attack). And, with respect to the remaining attacks, the
Court credits Colonel Spitzen's unrebutted conclusion
that Hamas was responsible. See supra Parts II.D &
II.H-1.
***
The Court, accordingly, concludes that, with the
exception of the destruction of the Parnases' home, all of
the attacks at issue qualify as "extrajudicial killing[s]"
under 28 U.S.C. § 1605A(a)(l).
3. Iran's Provision of Material Support for Hamas and
PIJ's Acts of Extrajudicial Killing
The FSIA's terrorism exception applies when a plaintiff
seeks money damages for "personal injury or death that
was caused by . . . the provision of material support or
resources for" an "act of torture, extrajudicial killing,
aircraft sabotage, [or] hostage taking," so long as that
support was provided by "an official, employee, or agent
of such foreign state while acting within the scope of his
or her office, employment, or agency." 28 U.S.C.
1605A(a)(l). Section 1605A(h)(3) defines "material
support or resources" by reference to 18 U.S.C. § 2339A,
the criminal material support statute. Section 2339A
defines "material support or resources" to mean
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.
18 U.S.C. § 2339A(b)(l).
The Court has found that, during the years leading up to
and surrounding the *365 attacks at issue, Iran provided
tens-if not hundreds---of millions of dollars' worth of
currency to Hamas and PU. See supra Part II.A. Iran also
provided substantial operational capacity to both groups,
including rockets and other weapons, weapons
technology, and training of operatives. See id. The Court
therefore concludes that Iran provided both Hamas and
PU "material support" in the form of, inter alia,
"currency," "training," "expert ... assistance," and
"weapons" within the meaning the FSIA. See 28 U.S.C. §
1605A(h)(4); 18 U.S.C. § 2339A(b)(l).
4. Syria's Provision of Material Support for Hamas
and PIJ's Acts of Extrajudicial Killing
Plaintiffs rely on a slightly different theory to establish
Syria's provision of material support to Hamas and PU.
Plaintiffs' evidence establishes that Syria offered both
Hamas and PU safe bases from which to grow and mature
as organizations and to carry out their operations,
although Syria withdrew that sanctuary for Hamas in
2012. The provision of this safe haven assisted both the
growth and development of the two groups generally and
their capacities to carry out the attacks at issue. See Dkt.
29 at 28-29 (Berti Deel. <JI 50). Those courts that have
considered the question have held that safe haven can, at
least at times, fall within the material support statute's
prohibition on the provision of "safehouses" to terrorist
organizations. See Rux v. Republic of Sudan, 461 F.3d
461, 470-71 (4th Cir. 2006); Owens v. Republic of Sudan,
412 F. Supp. 2d 99, 108 (D.D.C. 2006) ("Owens I").
In Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir.
2006), for example, the Fourth Circuit considered whether
Sudan's provision of safe haven to Osama bin Laden and
other al Qaeda operatives amounted to "material support"
under the FSIA. Id. at 470-71. The Rux plaintiffs offered
evidence that, among other things, the Sudanese
government and Osama bin Laden and al Qaeda had
jointly owned and operated banks and other companies in
that country, "gave [a]l Qaeda special authority to avoid
paying taxes and duties ordinarily due to the Republic of
the Sudan," permitted the "use of a diplomatic pouch to
send explosive materials belonging to Osama bin Lad[e]n
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Force v. Islamic Republic of Iran, 464 F.Supp.3d 323 (2020)
for [a]l Qaeda outside the Republic of Sudan," and
allowed al Qaeda to "operate training camps" in Sudan
"for the purpose of training terrorists" to "manufacture
bombs and [other] explosives." Id. at 468-69. Sudan
appeared in the case and argued that the term
"safehouses" in the material support statute must be
construed to include only discrete physical structures, not
the more abstract and amorphous harboring that only a
sovereign state can provide. Id. at 470---71. The Fourth
Circuit rejected that "restrictive interpretation" and held
that Sudan had provided a "safehouse," relying in part on
a decision from this district holding that, "[i]nsofar as the
government of the Republic of Sudan affirmatively
allowed and/or encouraged al-Qaeda ... to operate [its]
terrorist enterprise[ ] within its borders, and thus provided
a base of operations for the planning and execution of
terrorist attacks ... Sudan provided a 'safehouse' within
the meaning of 18 U.S.C. § 2339A, as incorporated in 28
U.S.C. § 1605(a)(7)." Id. at 471 (quoting Owens I, 412 F.
Supp. 2d at 108).
In Owens I, the decision relied upon in Rux, Judge Bates
was presented with allegations of similar conduct by
Sudan in support of al Qaeda, as well as additional
allegations that the Sudanese government "employed al
Qaeda to manufacture chemical weapons," offered
military protection for weapons shipments to and from al
Qaeda in an out of the country, and provided other special
treatment in the form of *366 preferential immigration
treatment and protection from arrest by local law
enforcement authorities. 412 F. Supp. 2d at 106-07. Judge
Bates found that "many of the[se] alleged acts do in fact
fit within several of the section 2339A categories" and
rejected Sudan's argument that "safehouses" should be
narrowly construed so as not to cover such harboring by a
sovereign state. Id. at 107-08.
The Court is persuaded by and adopts the conclusion that
the term "safehouse," as used in the material support
statute, includes foreign governmental encouragement or
assent to terrorist organizations setting up shop within
their borders. Here, Plaintiffs' experts testified that both
Hamas and PU conducted significant aspects of their
operations from within Syrian territory and that these
Syrian bases of operations helped both groups grow in
their operations and influence. Whether the Syrian
government encouraged any specific activity linked to
terrorism within its borders is, at least on the present
record, less clear than the link was in Owens I and Rux.
Nevertheless, the Court is satisfied on the present record
that the term "safehouses," as used in § 2339A, sweeps in
Syria's conduct here.
Plaintiffs rely on declarations and live testimony from Dr.
Berti and Dr. Deeb, who this Court qualified as expert
witnesses on the topics of "Syrian support for Hamas and
[PU]." Dkt. 105 at 8-9 (Berti); see also id. at 96-97
(Deeb). "The testimony of expert witnesses is of crucial
importance in terrorism cases, because firsthand evidence
of terrorist activities is difficult, if not impossible, to
obtain." Owens IV, 864 F.3d at 787 (internal citations
omitted). Direct evidence is often unavailable as
"[p ]erpetrators of terrorism typically lie beyond the reach
of the courts" and actively "avoid detection," and
"[e]yewitnesses in a state that sponsors terrorism" are
both hard to locate and "may be unwilling to testify for
fear of retaliation." Id. As in this case, "sovereigns
themselves often fail to appear and to participate in
discovery." Id. "[R]eliance upon secondary materials" and
the testimony of experts "is often critical" in order to
make up for this "dearth of firsthand evidence" in
"establish[ing] the factual basis of a claim under the FSIA
terrorism exception." Id.
Plaintiffs experts testified that Syria is and has been "one
of the most authoritarian societies in the world." Dkt. 105
at 45 (Berti). As a result, "[a]ny political organization that
wants to operate in Syria needs to have more than the
blessing but the open facilitation of the government." Id.
Both PU and Hamas maintained operational bases in
Damascus for well over a decade before the first of the
attacks the injured plaintiffs. See Dkt. 29 at 12-13 (Berti
Deel. fl[ 23-25) (explaining that Hamas established an
office in Damascus in the early 1990s and moved its
political bureau there in the early 2000s); id. at 17 (Berti
Deel. CJ[ 32) (explaining that PU has "maintained a
permanent base in Syria" since 1989). From those bases,
both groups were able to facilitate fundraising and arms
smuggling through Syria, as well as plan and coordinate
terrorist attacks with their members in Gaza. Id. at 15, 23,
29-30 (Berti Deel. fl[ 28, 41, 52-54); Dkt. 30 at 5-6
(Deeb Deel. CJ[ 19). Hamas also set up a camp near
Damascus to train its operatives. Dkt. 29 at 31 (Berti
Deel. CJ[ 55). Because Israel would face greater risks if it
sought to encroach on Syrian sovereignty by targeting
Hamas and PU leaders in Damascus than targeting leaders
in Gaza, Hamas and PU were able to conduct all of these
operations in Damascus with lessened fear of reprisal
from Israel or fear of prosecution for "arms dealing,
money laundering, terrorism," or similar offenses. See
Dkt. 105 at 19 (Berti). The benefits of *367 operating in
Syria, rather than Gaza, were a "very important force
multiplier for Hamas." Id. at 19-20 (Berti)
The evidence also shows that Syria "affirmatively
allowed" the two groups to establish themselves in the
Syrian capital. Not only did the regime not "forcefully or
systematically crack[] down" on Hamas's activities, Dkt.
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29 at 25 (Berti Deel. 'I[ 45), it offered affirmative support
for and endorsement of Hamas's activities. Syria and
Hamas had, since the 1990s, been political partners in
opposing various Israeli-Palestinian peace negotiations,
see Dkt. 105 at 100---01 (Deeb); id. at 16--17 (Berti), and,
after corning to power in 2000, Bashar Al-Assad only
further increased support for Hamas, just as the
organization was relocating its important political bureau
to Damascus, see id. at 17-18. Moreover, as Dr. Berti
explained, the Syrian government, "[ o ]n many
occasions," "made statements with respect to wanting to
guarantee Hamas and its leaders['] safety." Dkt. 105 at 19
(Berti). Those leaders that Syria sought to keep safe
included three individuals classified as Specially
Designated Global Terrorists by United States
Department of Treasury and who had relocated to
Damascus. Dkt. 29 at 19-20 (Berti Deel. 'I[ 34).
The Syrian government also offered important political
support to Hamas, and there is some evidence that Syria
provided financial support to Hamas. In 1999, Syrian
President Hafez al-Assad arranged for Hamas leaders to
join a meeting in Damascus between him and Iranian
President Mohammad Khatarni. Dkt. 29 at 27 (Berti Deel.
'II 47). Over the following decade, Hamas continued to
meet with Iranian officials in Damascus, id. as Iran
funneled untold millions of dollars to the group, see Part
II.A. A few years later, in 2002, it was reported that Syria
offered Hamas and PU aid in exchange for increased
attacks against Israel. Dkt. 29 at 25-26 (Berti Deel. 'I[ 45).
Dr. Berti also testified-although without mentioning
dates or quantities-that Syria was not only a
thoroughfare for rockets and rocket parts to Gaza from
Iran, but it also directly provided rocket parts to Hamas.
Dkt. 105 at 50-51 (Berti). Similarly, while there is a
"debate" about the "extent" and "consisten[cy]" of Syrian
financial support to Hamas, "there[ ] [are] many reports
that indicate financial" support. Id. at 21-22 (Berti).
PU's relationship to Syria is "similar to that of Hamas;"
Dkt. 105 at 24-25 (Berti), like Hamas, it had found a safe
haven in Damascus by the 1990s, see Dkt. 29 at 17 (Berti
Deel. 'II 32), which allowed it to grow and to gain in
strength over the decades that followed, Dkt. 105 at
24-25 (Berti). In Syria, PU operated a camp where it
trained operatives that engaged in suicide attacks. See id.
at 32, 35 (Berti). Syria also "talked about providing
security for [PU's] leadership," and, when "confronted or
asked about" their support for PU, "the answer has not
been no." Id. at 46 (Berti). Although the Syrian
government has claimed that its support was limited to
"political and social activities," id., PU, unlike Hamas,
does not have substantial operations of that sort. See id. at
24-25 (Berti).
The evidence of Syria's active encouragement of PU and
Hamas's operations in Damascus does not rise to the level
of support that the courts found in Rux or Owens I that
Sudan provided to al-Qaeda. But given Syria's
authoritarian government, the openness and duration of
Hamas and PU's operations in Damascus, Syria's ability
to expel Hamas as soon as it suited the Syrian government
to do so, Dkt. 105 at 36 (Berti), and the other evidence of
Syrian support, the Court finds that Syria did
"affirmatively allow" or "encourage" Hamas and PU to
operate there and thus *368 provided a "safehouse"
within the meaning of the FSIA. Owens I, 412 F. Supp. 2d
at 108; cf Han Kim, 774 F.3d at 1049-51 (permitting a
finding of liability under the FSIA' s terrorism exception
without any direct evidence based on expert testimony
that North Korea typically tortured and killed individuals
in labor camps and the inference that North Korea did the
same in plaintiff's particular case).
5. Causation
The Court must also consider whether Plaintiffs' injuries
were "caused by" provision of material support to Hamas
and PU. 28 U.S.C. § 1605A(a)(l). Plaintiffs need not
show that Iran or Syria "specifically knew of or intended
its support to cause" the particular attacks in question,
Owens IV, 864 F.3d at 798, or even that Iran or Syria's
material support was a "but for" cause of their injures,
Kilburn, 376 F.3d at 1128. Instead, the FSIA requires
only a "showing of 'proximate cause,' " which is satisfied
where a Plaintiff can show "some reasonable connection
between the act or omission of the defendant and the
damage which the plaintiff has suffered." Kilburn, 376
F.3d at 1128 (quoting Prosser & Keeton on the Law of
Torts 263 (5th ed. 1984)). This inquiry thus "contains two
similar but distinct elements." Owens IV, 864 F.3d at 794.
"First, the defendant's actions must be a 'substantial
factor' in the sequence of events that led to the plaintiff's
injury." Id. (quoting Rothstein v. UBS, 708 F.3d 82, 91
(2d Cir. 2013)). "Second, the plaintiff's injury must have
been 'reasonably foreseeable or anticipated as a natural
consequence' of the defendant's conduct." Id. (quoting
same).
Plaintiffs have not offered evidence that either Iran or
Syria's support was tied to each of the attacks that caused
their injuries. But such a "nexus" is not necessary because
funds-and, in certain instances, arms and other
support-are fungible, and the FSIA could hardly be
interpreted to condition Plaintiffs' recovery on Hamas and
PU' s "careful bookkeeping." Kilburn, 376 F.3d at 1130.
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Here, Plaintiffs' have shown that Iran's financial and
military aid to the two groups was essential to each
group's operating capacity and that, without Iran's
backing, both groups would be substantially weakened.
See Part II.A. Thus, Iran's support to both PU and Hamas
was a substantial factor in the eight attacks that caused the
Plaintiff's injuries.
Similarly, when asked by the Court whether "Hamas
would have been in a position to have committed the
terrorist attacks that are at issue in this case . . . if it were
not for Syria's provision of material support," Dr. Berti
opined that "without the type of support that Syria has
provided to Hamas, Hamas would not be what it is today
from a political, social and military perspective" and that
"the attacks that [were] perpetrated .. . are tightly
connected to the role Syria played." Dkt. 105 at 51-52
(Berti); see also id. at 53 (Berti) (explaining that "the
answer wouldn't be very different" with respect to PU,
but noting that PU is a "smaller, less sophisticated
organization"). Although Hamas did leave Syria after it
took the side of the Sunni rebels in the Syrian civil war in
2012, id. at 36 (Berti), Plaintiffs have shown that "the
continuous support which Syria provided to Hamas in the
previous years contributed to giving the group the military
edge and sophistication it needed to be able to conduct
and carry out successful violent operations" for many
years thereafter, up to and including the 2016 attacks at
issue here. See Dkt. 29 at 35-36 (Berti Deel. <J[ 66). Thus,
Syria's support was also a substantial factor in the attacks
that caused Plaintiffs' injuries.
*369 This, then, leaves the question whether Plaintiffs'
injuries resulting from the attacks at issue were
"reasonably foreseeable" or "natural consequence[s]" of
Defendants' conduct. Owens IV, 864 F.3d at 794. On this
issue, too, the record is clear. Iran not only supported
these groups, they actively encouraged them to carry out
attacks on civilians in Israel as part of a broader
geopolitical strategy and provided both groups with the
weapons and know-how to do so effectively. See supra
Part II.A. Although Syria's support took a different form,
it, too, was part of a broader geopolitical strategy that
supported Hamas and PU's operations and necessarily
understood that Syrian support would enable them to
carry out attacks on civilians in Israel. See, e.g., Dkt. 29 at
25-26 (Berti Deel. <J[ 45) The death and injury to innocent
people and the suffering of their families was, by any
measure, foreseeable. Owens IV, 864 F.3d at 797-98
(finding the 1998 embassy bombings by al Qaeda to be a
reasonably foreseeable consequence of Sudan's offer in
1991 to shelter Osama Bin Laden); see also Salzman,
2019 WL 4673761, at *14. Finally, although Syria's
support for Hamas waned in 2012, Dkt. 105 at 36 (Berti),
it was entirely foreseeable that Syria's earlier support in
making Hamas what it is today would lead to deaths and
injuries several years after 2012.
6. Federal Cause of Action
Having concluded that the Court possesses subject-matter
jurisdiction, little else is required to show that those
Plaintiffs who are U.S. nationals are entitled to relief
under the federal cause of action the Congress enacted in
2008 as part of the National Defense Authorization Act.
See Pub. L. No. 110-181, § 1083, 122 Stat. 338-44 (2008)
(codified at 28 U.S.C. § 1605A(c)). Although the federal
cause of action was added to the FSIA in 2008, "§
1605A(c) operates retroactively" and "plainly applies ...
to the pre-enactment conduct of a foreign sovereign."
Owens IV, 864 F.3d at 815. There is almost total "overlap
between the elements of [§ 1605A(c)' s] cause of action
and the terrorism exception to foreign sovereign
immunity," Foley, 249 F. Supp. 3d at 205, and a plaintiff
that offers proof sufficient to establish a waiver of foreign
sovereign immunity under § 1605A(a) has also
established entitlement to relief as a matter of federal
law-with one minor exception: a foreign state is only
liable to "a national of the United States," "a member of
the armed forces," "an employee [or contractor] of the
[U.S.] Government ... acting within the scope of the
employee's employment," or "the legal representative of'
any such person. 28 U.S.C. § 1605A(c).
This one exception affects the claims of the non-U.S.
national (Israeli national) plaintiffs in this case. For
jurisdictional purposes, this fact is non-consequential,
because the waiver of foreign sovereign immunity applies
so long as "the claimant or the victim was, at the time of
the" terrorist attack, a U.S. national, member of the armed
forces, or government employee. 28 U.S.C. §
1605A(a)(2)(A)(ii) (emphasis added). The federal cause
of action, however, is more restrictive and limits plaintiffs
to those who are themselves U.S. nationals, members of
the armed services, or government employees. 28 U.S.C.
§ 1605A(c). Accordingly, the Court concludes that,
subject to a showing that they suffer compensable losses,
the U.S.-national plaintiffs have, for the reasons described
above, carried their burden of demonstrating that they are
entitled to relief under § 1605A(c). The Court will
separately analyze whether the Israeli plaintiffs have
stated a cause of action.
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B. Personal Jurisdiction
The Court also concludes that it has personal jurisdiction
over the Islamic *370 Republic of Iran, MOIS and the
Syrian Arab Republic. Under the FSIA, the Court has
personal jurisdiction over a foreign state "as to every
claim for relief over which the [Court] ha[s] jurisdiction
... where service has been made under section 1608." 28
U.S.C. § 1330(b). Thus, "[i]n order to sue a foreign state
or one of its political subdivisions, a plaintiff must effect
service in compliance with" 28 U.S.C. § 1608(a). Barot v.
Embassy of the Republic of Zambia, 785 F.3d 26, 27
(D.C. Cir. 2015).
Section 1608(a) "provides four methods of service in
descending order of preference," id. :
(1) by delivery of a copy of the summons and
complaint in accordance with any special
arrangement for service between the plaintiff and the
foreign state or political subdivision; or
(2) if no special arrangement exists, by delivery of a
copy of the summons and complaint in accordance
with an applicable international convention on
service of judicial documents; or
(3) if service cannot be made under paragraphs (1) or
(2), by sending a copy of the summons and
complaint and a notice of suit, together with a
translation of each into the official language of the
foreign state, by any form of mail requiring a signed
receipt, to be addressed and dispatched by the clerk
of the court to the head of the ministry of foreign
affairs of the foreign state concerned, or
(4) if service cannot be made within 30 days under
paragraph (3), by sending two copies of the
summons and complaint and a notice of suit,
together with a translation of each into the official
language of the foreign state, by any form of mail
requiring a signed receipt, to be addressed and
dispatched by the clerk of the court to the Secretary
of State in Washington, District of Columbia, to the
attention of the Director of Special Consular
Services--and the Secretary shall transmit one copy
of the papers through diplomatic channels to the
foreign state and shall send to the clerk of the court a
certified copy of the diplomatic note indicating when
the papers were transmitted.
28 U.S.C. § 1608(a).
The first two mechanisms of effecting service-by
delivery of the summons and complaint either "in
accordance with any special arrangement for service
between the plaintiff and the foreign state" under §
1608(a)(l) or "in accordance with an applicable
international convention on service of judicial
documents" under § 1608(a)(2)-were unavailable to
Plaintiffs in this case. See Dkt. 17 at 1. No "special
arrangement" governs service between the United States
and Iran or Syria, and neither country is party to an
international convention on service of judicial documents.
See Braun v. Islamic Republic of Iran, 228 F. Supp. 3d
64, 77-78 (D.D.C. 2017). As a result, Plaintiffs attempted
service under the third alternative, which requires service
by mail from "the clerk of the court to the head of the
ministry of foreign affairs of the foreign state." 28 U.S.C.
§ 1608(a)(3). On September 13, 2016, Plaintiffs initiated
service as to all Defendants under § 1608(a)(3), Dkt. 5;
Dkt. 6, and, at Plaintiffs' request, the clerk of court,
mailed the relevant documents to Syria, Iran, and MOIS
on September 27, 2016. Dkt. 7. On October 12, 2016,
Plaintiffs notified the Court that the documents to Iran
and MOIS were undelivered. Dkt. *371 8. The documents
to Syria, however, were delivered on November 14, 2016.
Dkt. 14.
Plaintiffs then proceeded to serve Iran and MOIS pursuant
to § 1608(a)(4). That provision requires service by mail
from the clerk of court to the Secretary of State, who must
then transmit the required material "through diplomatic
channels to the foreign state." 28 U.S.C. § 1608(a)(4).
The Department of State must then send "the clerk of the
court a certified copy of the diplomatic note indicating
when the papers were transmitted." Id. Plaintiffs provided
the clerk with the relevant documents and requested
service pursuant to § 1608(a)(4) on October 31, 2016.
Dkt. 9. The clerk mailed these materials to the State
Department on May 26, 2017. Dkt. 19. On September 14,
2017, the State Department notified the Clerk that the
documents had been delivered to the Islamic Republic of
Iran and to MOIS. Dkt. 20. As the Department explained,
"[b]ecause the United States does not maintain diplomatic
relations with the government of Iran," the documents
were transmitted to the Embassy of Switzerland in Iran,
which then transmitted the materials to the Iranian
Ministry of Foreign Affairs on July 18, 2017. Id. at 1, 4.
The Swiss Embassy reported that the Iranian Ministry of
Foreign Affairs "refused" to accept the documents that
same day. Id. at 4. After the Islamic Republic of Iran
failed to respond, the clerk entered a default. Dkt. 23.
Because Plaintiffs accomplished service pursuant to 28
U.S.C. § 1608(a)(3) on the Syrian Arab Republic and
pursuant to 28 U.S.C. § 1608(a)(4) on the Islamic
Republic of Iran and MOIS, the Court possesses personal
jurisdiction over all three defendants. See 28 U.S.C. §
1330(b).
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C. Liability for State Law Claims
In addition to suing under federal law, Plaintiffs assert
several state law claims. As to most of the plaintiffs, these
claims are redundant of their federal law claims and do
not provide any additional right to recover. As noted
above, however, thirteen of the plaintiffs (including
Yehudah Glick, who has renounced his U.S. citizenship)
are not U.S. nationals, members of the U.S. armed forces,
or U.S. employees or contractors, see Dkt. 109 (Yehudah
Glick renunciation of U.S. citizenship); Dkt. 57 at 1
(Atara Katz Deel. <j[ l); Dkt. 61 at 1 (Eytan Moriah Deel. <j[
l); Dkt. 62 at 1 (Ifat Cohen Deel. <j[ 2); Dkt. 64 at 1 (Tzur
Moriah Deel. <J[ l); Dkt. 59 at 1 (Chagit Gibor <J[ l); Dkt.
80 at 1 (Yaakov Shitrit Deel. <j[ l); Dkt. 71 at 1 (B. Rivkin
Deel. <J[ l); Dkt. 52 at 1 (Yehudah Glick Deel. <J[ l); Dkt.
38 at 1 (N. Brauner <j[ 4) (C.Y.B., M.H.B., and Y.A.L.B.);
see Dkt. 82 (omitting C.Y.B., M.H.V., and Y.A.L.B. from
list of individuals with U.S. passports). These plaintiffs,
therefore, are not entitled to recover under the § 1605A(c)
private right of action. They can, however, seek to recover
damages under state tort law. See Owens IV, 864 F.3d at
809. Because the U.S.-national plaintiffs are entitled to
relief under the federal law cause of action, the Court will
limit its consideration of the state law claims to the
thirteen non-U.S.-national plaintiffs.
Historically, the state-sponsored terrorism exception to
the FSIA was not understood to create a federal cause of
action against foreign states ( as opposed to state officials)
but, rather, to operate merely as a "pass-through" for state
law claims. Id. at 764 (quoting Pescatore v. Pan Am.
World Airways, Inc., 97 F.3d 1, 12, (2d Cir. 1996)); see
also Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d
1024, 1033 (D.C. Cir. 2004). When Congress amended
the law to provide a federal cause of action, see National
Defense Authorization Act for Fiscal Year 2008 *372 §
1083, it did not upset the prior law permitting plaintiffs to
assert state law claims after clearing the hurdle of foreign
sovereign immunity, see Owens IV, 864 F.3d at 807-09.
Although most plaintiffs proceeding under the
state-sponsored terrorism exception to the FSIA need not
rely on state tort law, the "pass-through approach
remains" a "viable" option for those who are unable to
invoke the federal cause of action, id. at 809, such those
thirteen plaintiffs who are Israeli nationals. Dkt. 38 at 1
(N. Brauner <J[ 4) (C.Y.B., M.H.B., and Y.A.L.B.); Dkt. 57
at I (Atara Katz Deel. <j[ l); Dkt. 61 at 1 (Eytan Moriah
Deel. <j[ l); Dkt. 62 at 1 (Ifat Cohen Deel. <j[ 2); Dkt. 64 at
1 (Tzur Moriah Deel. <J[ l); Dkt. 59 at 1 (Chagit Gibor <J[
l); Dkt. 80 at 1 (Yaakov Shitrit Deel. <j[ 1); Dkt. 71 at 1
(B. Rivkin Deel. <J[ l); Dkt. 52 at 1 (Yehudah Glick Deel.
l. Choice of Law
In the absence of a federal cause of action, the Court must
first consider what law applies. Because "[t]he FSIA does
not contain an express choice-of-law provision" but,
rather, specifies that "a foreign state stripped of its
immunity 'shall be liable in the same manner and to the
same extent as a private individual under like
circumstances,' " the Court must apply the choice of law
rules of the forum state. Oveissi v. Islamic Republic of
Iran, 573 F.3d 835, 841 (D.C. Cir. 2009) ("Oveissi I")
(quoting 28 U.S.C. § 1606). The Court will, accordingly,
apply District of Columbia choice of law principles.
The District of Columbia uses a choice-of-law rule that
"blend[s] a 'governmental interest analysis' with a 'most
significant relationship' test." Id. at 842 (quoting
Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31,
40--41 & n.18 (D.C. 1989)). Under the governmental
interest analysis, the Court "must evaluate the
governmental policies underlying the applicable laws and
determine which jurisdiction's policy would be most
advanced by having its law applied to the facts of the case
under review." Id. (quoting Hercules & Co., 566 A.2d at
41). And, under the most significant relationship test, the
Court must consider the following four factors taken from
the Restatement (Second) of Conflict of Laws: (1) "the
place where the injury occurred"; (2) "the place where the
conduct causing the injury occurred"; (3) "the domicil[e],
residence, nationality, place of incorporation and place of
business of the parties"; and ( 4) "the place where the
relationship, if any, between the parties is centered." Id.
(quoting Restatement (Second) of Conflict of Laws §
145(2) (1971 )). Section 145 of the Restatement "also
references the factors in Section 6 of the Restatement,
which include the needs of the interstate and the
international systems, the relevant policies of the forum,
the relevant policies of other interested states, certainty,
predictability and uniformity of result, and ease in the
determination and application of the law to be applied."
Dammarell v. Islamic Republic of Iran, 01-2224, 2005
WL 756090, at *18 (D.D.C. Mar. 29, 2005) (citing
Restatement (Second) of Conflict of Laws § 145 (1971));
see also Owens v. Republic of Sudan, 826 F. Supp. 2d
128, 154 (D.D.C. 2011) ("Owens If'), aff'd in part and
vacated in part on other grounds, 864 F.3d. 751 (D.C.
Cir. 2017).
Here, there are two potential sources of law that might
govern the Israeli-national plaintiffs' claims: the law of
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the forum state (the District of Columbia) and the law of
the plaintiffs' domicile and the place of the attacks at
issue (Israel). Plaintiffs contend that Israeli law should
govern the Israeli plaintiffs' claims, and the Court agrees.
*373 This case does not raise a conflict between various
domestic jurisdictions; rather, the Court must decide
whether to apply D.C. law or the law of a foreign
jurisdiction, Israel. In Dammarell v. Islamic Republic of
Iran, the district court applied the law of the
U.S.-plaintiffs' state of domicile-rather than that of
Lebanon-to a suit brought by American victims of the
1983 bombing of the United States Embassy in Beirut.
2005 WL 756090 at *20. As the district court explained,
"the injuries in [that] case [were] the result of a
state-sponsored terrorist attack on a United States
embassy and diplomatic personnel[,] [and the] United
States has a unique interest in its domestic law ...
determining damages in a suit involving such an attack."
Id. ; see also Oveissi /, 573 F.3d at 843 ("We have no
doubt that the United States has a strong interest in
applying its domestic law to terrorist attacks on its
nationals, especially when, as was the case in Dammarell,
the attacks are 'by reason of their nationality.' "). That
principle, moreover, is supported by the Restatement
(Third) of Foreign Relations Law, which recognizes a
country's "jurisdiction to prescribe law with respect to
'certain conduct outside its territory by persons not its
national that is directed against the security of the state or
against a limited class of other interests,' " and notes that
"this principle is 'increasingly accepted as applied to
terrorist ... attacks on a state's nationals by reason of their
nationality .... " Id. (quoting Restatement (Third) of
Foreign Relations Law§ 402(3) & 402 cmt. g) (emphasis
in Oveissi /) (citation to Dammarell omitted).
Although agreeing with this summary of the governing
law, the D.C. Circuit declined to apply domestic U.S. law
in Oveissi I. There, in contrast to Dammarell, the victim
of the assassination was not a U.S. national, there was no
evidence that the assailants knew that the victim's
grandchild-the plaintiff in Oveissi /-was a U.S.
national, and there was no evidence that "the United
States or its nationals were in any other way the object of
the attack." Id. at 843. The evidence, to the contrary,
showed that the assassination occurred in France, and was
intended "to deter French intervention in Lebanon." Id.
(emphasis omitted). In short, "if any country was the
object of the attack, it was France." Id. The D.C. Circuit,
therefore, concluded that French law should govern. Id.
Although not identical, the present case is closer to
Oveissi I than it is to Dammarell. All seven attacks
occurred in Israel. And, as in Oveissi I, there is no
evidence that "the United States or its nationals were in
any ... way the object" of any of the attacks, although the
direct victims were all U.S. nationals at the time of the
attacks. Id. (emphasis added). This case is, moreover, on
all fours with Fraenkel v. Islamic Republic of Iran, 248 F.
Supp. 3d 21 (D.D.C. 2017), rev'd in part on other
grounds, 892 F.3d 348 (D.C. Cir. 2018), where the district
court applied the principles discussed above and held that
Israeli law, rather than D.C. law, was appropriate. Id. at
39. There, the court concluded that "Israel ha[d] the
greatest interest in having its laws apply and the most
significant relationship to the events" because "the injury
occurred in Israel; the conduct causing the injury occurred
in Israel, the Palestinian territories, [and] Iran ... ; [the
plaintiff] is and always has been an Israeli citizen; and
there is no legal relationship between [the plaintiff] and
any of the defendants or Hamas." Id. The same
considerations are present here with respect to the
non-U.S.-national/Israeli plaintiffs. Not only did all the
relevant events occur in Israel and these particular
plaintiffs are Israeli citizens, the direct victims on which
*374 their claims are predicated were all U.S. citizens
who permanently resided in Israel, including some with
dual U.S.-Israeli citizenship. See Dkt. 72 at 1 (Menachem
Rivkin Decl. <J[ 1) (U.S. citizen residing in Israel); Dkt. 52
at 1 (Yehudah Glick Deel. <J[ 1) (indicating that he was a
U.S. citizen at the time of the attack); Dkt. 66 at 1 (Naftali
Moses Deel. <J[<J[ 1-4) (indicating that Avraham Moses
resided in Israel at the time of the attack that killed him);
Dkt. 76 at 1 (Naftali Shitrit Deel. <J[ 1) (dual U.S.-Israeli
citizen residing in Israel); Dkt. 39 at 1 (Shmuel Brauner
Deel. <J[<J[ 1, 6) (U.S. citizen born in Israel and residing
there at the time of the attack). The Court, accordingly,
concludes that Israeli law should govern.
2. Liability
Having concluded that Israeli law applies, the Court will
turn to whether the Israeli plaintiffs have adequately
alleged a claim for (1) negligence or (2) aiding and
abetting. Dkt. 1 at 31 (Compl. <J[<J[ 132-151). When
applying foreign law, "the [C]ourt may consider any
relevant material or source, including testimony, whether
or not submitted by a party or admissible under the
Federal Rules of Evidence." Thuneibat v. Syrian Arab
Republic, 167 F. Supp. 3d 22, 44 (D.D.C. 2016) (quoting
Fed. R. Civ. P. 44.1 ). Although "the [C]ourt is not limited
by material presented by the parties," and "may engage in
its own research," it is also "free to insist on a complete
presentation by counsel." Fed. R. Civ. P. 44.1 advisory
committee's note to 1966 amendment. In support of the
Israeli plaintiffs' entitlement to relief under Israeli law,
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Force v. Islamic Republic of Iran, 464 F.Supp.3d 323 (2020)
Plaintiffs have submitted the expert declaration of Dr.
Boaz Schnoor, who holds L.L.D., L.L.M., and L.L.B.
degrees from Hebrew University and has "served as a
consulting expert witness on issues related to Israeli tort
law and liability for terrorist attacks in a number of
cases." Dkt. 34 at 2 (Schnoor Expert Rpt. 'l['l[ 3-4).
In Dr. Schnoor' s expert opinion, "Defendants would be
held liable in tort to the Plaintiffs under the applicable
provisions of [Israel's] Civil Wrongs Ordinance [New
Version] 5728-1968 ('CWO')." Dkt. 34 at 3 (Schnoor
Deel. 'l[ 8). Dr. Schnoor's declaration asserts, in particular,
that Iran and Syria are directly liable to Plaintiffs under
the doctrine of negligence for "[s]upplying aid, support
and assistance to terrorist organizations" because "a
reasonable defendant would foresee that such actions
might result in terrorist attacks," causing harm to direct
victims and their family members. Id. (Schnoor Deel. 'l[
9c). According to Dr. Schor, "[t]he tort of negligence
provided for in the CWO consists of four elements: duty
of care; breach of a duty of care[;] ... proximate cause
(sometimes divided to cause-in-fact and legal causation);
and harm." Id. at 5 (Schnoor Deel. 'l[ 15) (citations
omitted); see also CWO § 35, 2 LSI (New Version)
14-15 (1972). And "[i]t is noteworthy ... that Israeli Law
holds that the tort of negligence encompasses not only
negligent acts, but also intentional acts, as long as they are
unreasonable acts that caused foreseeable harm." Id. at 4
(Schnoor Deel. 'l[ 13). Applying the above standard to the
Israeli plaintiffs' claims, the Court concludes that eleven
of the thirteen Israeli plaintiffs have adequately alleged a
claim for negligence against Iran and Syria.
First, duty of care under Israeli law is "sometimes divided
between the conceptual duty of care and concrete duty of
care." Id. at 5 (Schnoor Deel. 'l[ 16). "According to Israeli
tort law[,] a duty of care (both conceptual and concrete) is
presumed to exist whenever a reasonable person could
have foreseen that the conduct at issue could cause harm
of the type alleged." Id. at 6 (Schnoor Deel. 'l[ 17); see
*375 also CWO, § 36, 2 LSI (New Version) 15 (1972)
("[E]very person owes a duty to all persons whom ... a
reasonable person ought in the circumstances to have
contemplated as likely in the usual course of things to be
affected by an act, or failure to do an act."). The Court
finds that the Israeli plaintiffs have demonstrated that
Defendants were under a duty of care to Bracha Rivkin,
Yehudah Glick, his foster children R.T. and T.T.,
Avraham Moses's step-siblings, and Shmuel Brauner's
children because, as noted above, "their injuries were
foreseeable consequences" of Iran and Syria's provision
of material support to Hamas and PU. see Fraenkel, 248
F. Supp. 3d at 39.
Second, "[a] breach of the duty of care occurs when a
party with a duty fails to take 'reasonable precautionary
measures.' " Id. (citation omitted). Far from taking
precautionary measures, Iran provided Hamas and PU
with financing, weapons and training; Syria provided
them with a safe haven from which to procure those tools
and plan attacks; both actively encouraged terrorist
operatives to carry out attacks against the civilian
population of Israel. The Court, accordingly, concludes
that Defendants breached their duty of care to the Israeli
plaintiffs.
Third, the "[c]ause in fact is generally determined in
Israel according to the 'but for' test." Dkt. 34 at 7
(Schnoor Deel. 'l[ 21) (citations omitted). And legal
causation is met "[i]f a reasonable person could have
foreseen that a harm of the kind that happened might
happen." Id. (Schnoor Deel. 'l[ 22). Both types of
causation are satisfied here. As noted above, Plaintiffs
have demonstrated that, but-for the material support of
Iran, Hamas and PU would not have had the economic
resources or the training to carry out the attacks at issue.
So, too, with Syria; the safe harbor provided by Syria was
necessary for both groups to develop the operational
capacity to carry out these attacks. And, it was certainly
foreseeable that, by providing Hamas and PU material
support and encouraging them to carry out terrorist
attacks against civilians in Israel, Iran would cause
serious injury or death to civilians in Israel and inflict
mental and emotional anguish on their families.
Finally, the element of harm is defined by the CWO as
"loss of life, or loss of, or detriment to, any property,
comfort, bodily welfare, reputation, or other similar loss
or detriment." Dkt. 34 at 7 (Schnoor Deel. 'l[ 23). As noted
above, the Israeli plaintiffs have submitted psychiatric
evaluations attesting to the mental and emotional anguish
they suffered as a result of their loved ones' injuries. See
Dkt. 35 (Strous Deel.). The Court, accordingly, finds that
they have adequately demonstrated harm.
The Court will, however, deny the motion for default
judgment as to Y.A.L.B. and M.H.B., the children of
Plaintiff Schmuel Brauner, who were born after the
August 19, 2011 rocket attack that injured Schmuel. With
respect to these two plaintiffs, the Court is not
satisfied-at least on the existing record-that Defendants
owed these plaintiffs a duty of care at the time of the
attack. Courts in this district have, for example, held that
after-born children cannot recover for solatium damages
in similar cases brought under§ 1605A of the FSIA. See,
e.g., Davis v. Islamic Republic of Iran, 882 F. Supp. 2d 7,
14-15 (D.D.C. 2012). Dr. Schnoor's declaration does not
address this wrinkle, nor does he explain whether
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Force v. Islamic Republic of Iran, 464 F.Supp.3d 323 (2020)
after-born children are owed a duty of care under Israeli
negligence law. Because it is Plaintiffs' burden to
establish their right to relief on a motion for default
judgment, the Court concludes that Plaintiffs have failed
to present sufficient evidence *376 that Y.A.L.B. and
M.H.B. are entitled to solatium damages.
The Court will, accordingly, grant the motion for entry of
a default judgment with respect to the eleven of the
thirteen Israeli plaintiffs. With respect to M.H.B and
Y.A.L.B., the Court will deny the motion for default
judgment without prejudice. Plaintiffs may renew their
motion after supplementing Dr. Schnoor's declaration
with additional expert testimony on Israeli law to address
the Court's concerns.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that
Footnotes
the motion for default judgment, Dkt. 91, with respect to
all a claims by M.H.B. and Y.A.L.B., the minor children
of Schmuel and Nechama Brauner, and all claims by
Daniella, Noa, and Dana Parnas, and A.P., is DENIED
without prejudice. It is further ORDERED that the
motion for default judgment with respect to the remaining
fifty-one Plaintiffs is GRANTED with respect to their
claims against Syria, Iran, and MOIS. The Court will
APPOINT a special master to hear their damages claims
and to report to the Court recommending the appropriate
award as to those plaintiffs. A separate order appointing a
special master and setting the terms of that appointment
will follow.
SO ORDERED.
All Citations
464 F.Supp.3d 323
The Court has reviewed the qualifications of Plaintiffs' expert witnesses and concludes that each is qualified to offer the
opinions discussed below. Dkt. 104 at 10 (Levitt); id. at 53 (Spitzen); Dkt. 105 at 8 (Berti); id. at 60 (Clawson); id. at
96-97 (Deeb).
2 Colonel Spitzen testified that his account of the terror attack is based upon "the court file of Abu Ghanem, the file of the
Israel police, which contained both forensic findings as well as interrogations of ... Abu Ghanem himself, and
questioning of passengers and passersby who were on the scene." Dkt. 104 at 58 (Spitzen).
3 The record is ambiguous as to whether the children are also U.S. citizens, as they were born abroad to two married
U.S. citizens, but the record does not disclose whether either Schmuel or Nechama ever resided in the United States
prior to the children's birth, such that they would be U.S. citizens at birth. See 8 U.S.C. § 1401 . Because Plaintiffs do
not ask the Court to find that the children have U.S. citizenship, see Dkt. 87 at 88 (Proposed Findings of Fact ,i 293),
the Court will proceed on the understanding that the children are not U.S. citizens.
4 The Court adopts the spelling of "Parnas" as it appears in the complaint, Dkt. 1 at 4 (Campi.), Daniella Parnas's
declaration, Dkt. 69 at 1 (D. Parnas Deel.), and Dr. Strous's psychiatric evaluation, Dkt. 35-34 at 1 (Daniella Parnas
Psych. Eval.). Colonel Spitzen's declaration spells the plaintiffs' last name as "Parnass."
5 Because the MOIS is itself a "governmental" entity, it is properly "considered the foreign state itself," and not merely an
"instrumentality of the foreign state." Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003); see also
TMR Energy Ltd. v. State Prop. Fund of Ukr., 411 F.3d 296, 300 (D.C. Cir. 2005) (explaining that "an entity that is an
'integral part of a foreign state's political structure' is to be treated as the foreign state itself" for purposes of
"determining the proper method of service under the FSIA" (quoting Transaero, Inc. v. La Fuerza Aerea Boliviana, 30
F.3d 148, 151 (D.C. Cir. 1994))).
6 Section 1605A(a)(2) also requires that the foreign state have received "a reasonable opportunity to arbitrate the claim,"
but only if the act of terrorism "occurred in the foreign state against which the claim has been brought." 28 U.S.C. §
1605A(a)(2)(A)(iii). That requirement is inapplicable to the facts of this case because none of the alleged acts of
terrorism occurred in Iran or Syria.
7 The Restatement provides the following (unfitting) illustration: "A, who is annoyed by the barking of B's pet dog, shoots
at the dog intending to kill it. He misses the dog. B suffers severe emotional distress. A is not liable to B." Restatement
(Second) of Torts § 47 cmt. a, ill. 2.
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Annex 366
Force v. Islamic Republic of Iran, 464 F.Supp.3d 323 (2020)
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government
Works.
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Annex 366

ANNEX367

Owens v. Republic of Sudan, 864 F.3d 751 (2017)
431 U.S.App.D.C. 163
864 F.3d 751
United States Court of Appeals, District of Columbia
Circuit.
James OWENS, et al., Appellees
v.
REPUBLIC OF SUDAN, Ministry of
External Affairs and Ministry of the
Interior of the Republic of the Sudan,
Appellants
No.14-5105
I
Consolidated with 14-5106
I
14-5107
I
14-7124
I
14-7125
I
14-7127
I
14-7128
I
14-7207
I
16-7044
I
16-7045
I
16-7046
I
16-7048
I
16-7049
I
16-7050
I
16-7052
I
Argued October 11, 2016
I
Decided July 28, 2017
I
Rehearing En Banc Denied October 3, 2017
Synopsis
Background: Victims of United States embassy
bombings in Tanzania and Kenya brought action against
Republic of Sudan and the Islamic Republic of Iran,
pursuant to Foreign Sovereign Immunities Act (FSIA)
terrorism exception, alleging that they materially
supported terrorist organization responsible for the
bombing. Following entry of default judgment against
Sudan, the United States District Court for the District of
Columbia, John D. Bates, J., 374 F.Supp.2d 1, vacated the
default order and dismissed with leave to amend.
Following amendment to complaint, the District Court,
Bates, J., 412 F.Supp.2d 99, denied Sudan's motion to
dismiss. On Sudan's interlocutory appeal, the Court of
Appeals, Sentelle, Chief Judge, 531 F.3d 884, affirmed
and remanded. After several new groups of plaintiffs filed
actions against Sudan and Iran arising from the embassy
bombings, and default judgments were entered in their
favor, the District Court, Bates, J., 826 F.Supp.2d 128,
held both Iran and Sudan liable for materially supporting
the embassy bombings, and subsequently, 71 F.Supp.3d
252, entered final judgments in favor of the various
plaintiffs, and entered damages award of $10.2 billion.
The District Court, Bates, J., 174 F.Supp.3d 242, denied
Sudan's motion to vacate. Sudan appealed.
Holdings: The Court of Appeals, Ginsburg, Senior
Circuit Judge, held that:
embassy bombings constituted extrajudicial killings
within meaning of FSIA terrorism exception;
expert witnesses' opinions were admissible;
sufficient evidence supported finding that district court
had jurisdiction under FSIA terrorism exception;
victims were not entitled to punitive damages; and
Sudan was not entitled to relief from default judgment.
Affirmed in part; vacated in part.
*761 Appeals from the United States District Court for
the District of Columbia (No. l:0l-cv-02244)
(1:08-cv-01377) (1:10-cv-00356) (1:12-cv-01224)
(l:08-cv-01349) (l:08-cv-01361) (l:08-cv-01380)
Attorneys and Law Firms
Christopher M. Curran argued the cause for appellants.
With him on the briefs were Nicole Erb, Claire A.
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Annex 367
Owens v. Republic of Sudan, 864 F.3d 751 (2017)
431 U.S.App.D.C. 163
DeLelle, and Celia A. McLaughlin. Bruce E. Fein,
Washington, DC, entered an appearance.
Stuart H. Newberger and Matthew D. McGill argued the
causes for appellees James Owens, et al. With them on the
brief were Clifton S. Elgarten, Aryeh S. Portnoy, Emily
Alban, John L. Murino, Jonathan C. Bond, Michael R.
Huston, Steven R. Perles, Edward B. MacAllister, John
Vail, Thomas Fortune Fay, Jane Carol Norman, Michael
J. Miller, and David J. Dickens. Annie P. Kaplan, John D.
Aldock, Washington, DC, and Stephen A. Saltzburg,
entered appearances.
Before: Henderson and Rogers, Circuit Judges, and
Ginsburg, Senior Circuit Judge.
Ginsburg, Senior Circuit Judge:
**173 Table of Contents
I. Background 762
A. The FSIA Terrorism Exception 763
B. History of this Litigation 7 65
II. Extrajudicial Killings 769
A. Textual Arguments 770
1. State action requirements under international law 770
2. International law and the TVP A 772
3. State action requirements in the TVPA and the FSIA
terrorism exception 773
B. Statutory Purpose 775
C. Statutory History 777
III. Sufficiency of the Evidence Supporting Jurisdiction
778
A. The Evidentiary Hearing 779
1. The sources of evidence presented 779
2. The district court's findings of fact 781
B. Standard of Review 784
C. Admissibility of the Evidence 786
1. The expert testimony 787
2. The State Department reports 792
D. Sufficiency of the Evidence 793
1. Proximate causation 794
2. Sudan's specific intent 798
IV. Timeliness of Certain Claims 799
V. Jurisdiction and Causes of Action for Claims of Third
Parties 804
A. Jurisdiction 805
B. Causes of Action 807
**174*762 C. Intentional Infliction of Emotional Distress
809
VI. Punitive Damages 812
A. Whether to Review the Awards of Punitive Damages
812
B. Retroactivity of Punitive Damages Under § 1605A(c)
814
1. Section 1605A operates retroactively 815
2. Clear statement of retroactive effect 816
C. Retroactivity of Punitive Damages Under State Law
817
VII. Vacatur Under Rule 60(b) 818
A. Excusable Neglect Under Rule 60(b)(l) 819
B. Extraordinary Circumstances Under Rule 60(b)(6) 824
On August 7, 1998 truck bombs exploded outside the
United States embassies in Nairobi, Kenya and in Dar es
Salaam, Tanzania. The explosions killed more than 200
people and injured more than a thousand. Many of the
victims of the attacks were U.S. citizens, government
employees, or contractors.
As would later be discovered, the bombings were the
work of al Qaeda, and only the first of several successful
attacks against U.S. interests culminating in the
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Owens v. Republic of Sudan, 864 F.3d 751 (2017)
431 U.S.App.D.C. 163
September 11, 2001 attack on the United States itself.
From 1991 to 1996, al Qaeda and its leader, Usama bin
Laden, maintained a base of operations in Sudan. During
this time, al Qaeda developed the terrorist cells in Kenya
and Tanzania that would later launch the embassy attacks.
This appeal considers several default judgments holding
Sudan liable for the personal injuries suffered by victims
of the al Qaeda embassy bombings and their family
members.
I. Background
Starting in 2001 victims of the bombings began to bring
suits against the Republic of Sudan and the Islamic
Republic of Iran, alleging that Sudan, its Ministry of the
Interior, Iran, and its Ministry of Information and Security
materially supported al Qaeda during the 1990s.
Specifically, the plaintiffs contended Sudan provided a
safe harbor to al Qaeda and that Iran, through its proxy
Hezbollah, trained al Qaeda militants. In bringing these
cases, the plaintiffs relied upon a provision in the Foreign
Sovereign Immunity Act (FSIA) that withdraws sovereign
immunity and grants courts jurisdiction to hear suits
against foreign states designated as sponsors of terrorism.
28 U.S.C. § 1605(a)(7). This provision and its successor
are known as the "terrorism exception" to foreign
sovereign immunity.
Initially, neither Sudan nor Iran appeared in court to
defend against the suits. In 2004 Sudan secured counsel
and participated in the litigation. Within a year, its
communication with and payment of its attorneys ceased
but counsel continued to litigate until allowed to withdraw
in 2009. In the years that followed, several new groups of
plaintiffs filed suits against Sudan and Iran. The sovereign
defendants did not appear in any of these cases, and in
2010 the district court entered defaults in several of the
cases now before us. After an evidentiary hearing in 2010
and the filing of still more cases, the court in 2014 entered
final judgments in all pending cases. Sudan then
reappeared, filing appeals and motions to vacate the
judgments. The district court denied Sudan's motions to
vacate, and Sudan again appealed.
Today we address several challenges brought by Sudan on
direct appeal of the default judgments and collateral
appeal from its motions to vacate. Most of Sudan's
contentions require interpretation of the **175*763 FSIA
terrorism exception, to which we now turn.
A. The FSIA Terrorism Exception
Enacted in 1976, the FSIA provides the sole means for
suing a foreign sovereign in the courts of the United
States. Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 102 L.Ed.2d 818
(1989). A foreign state is presumptively immune from the
jurisdiction of the federal and state courts, 28 U.S.C. §
1604, subject to several exceptions codified in §§ 1605,
1605A, 1605B, and 1607.
When first enacted, the FSIA generally codified the
"restrictive theory" of sovereign immunity, which had
governed sovereign immunity determinations since 1952.
Under the restrictive theory, states are immune from
actions arising from their public acts but lack immunity
for their strictly commercial acts. Verlinden B. V. v. Cent.
Bank of Nigeria, 461 U.S. 480, 487-88, 103 S.Ct. 1962,
76 L.Ed.2d 81 (1983). Thus, the original exceptions in the
FSIA withdrew immunity for a sovereign's commercial
activities conducted in or causing a direct effect in the
United States, 28 U.S.C. § 1605(a)(2), and for a few other
activities not relevant here. See28 U.S.C. §
1605(a)(l)-(6).
None of the original exceptions in the FSIA created a
substantive cause of action against a foreign state. Rather,
the FSIA provided "the foreign state shall be liable in the
same manner and to the same extent as a private
individual under like circumstances" except that it
prohibited the award of punitive damages against a
sovereign. 28 U.S.C. § 1606. As a result, a plaintiff suing
a foreign sovereign typically relied upon state substantive
law to redress his grievances. In this way, the FSIA
"operate[d] as a 'pass-through' to state law principles,"
Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 12
(2d Cir. 1996), granting jurisdiction yet leaving the
underlying substantive law unchanged, First Nat'[ City
Bank v. Banco Para El Comercio Exterior de Cuba, 462
U.S. 611, 620, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983).
Until 1996 the FSIA provided no relief for victims of a
terrorist attack. Courts consistently rebuffed plaintiffs'
efforts to fit terrorism-related suits into an existing
exception to sovereign immunity. See, e.g., Saudi Arabia
v. Nelson, 507 U.S. 349, 113 S.Ct. 1471, 123 L.Ed.2d 47
(1993); Cicippio v. Islamic Republic of Iran, 30 F.3d 164
(D.C. Cir. 1994); Smith v. Socialist People's Libyan Arab
Jamahiriya, 886 F.Supp. 306 (E.D.N.Y. 1995). This
changed with the passage of the Antiterrorism and
Effective Death Penalty Act (AEDPA) of 1996, Pub. L.
No. 104-132, 110 Stat. 1214, which added a new
exception to the FSIA withdrawing immunity and
granting jurisdiction over cases in which
money damages are sought against a foreign state for
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Owens v. Republic of Sudan, 864 F.3d 751 (2017)
431 U.S.App.D.C. 163
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 if such act or provision of material
support is engaged in by an official, employee, or agent
of such foreign state while acting within the scope of
his or her office, employment, or agency.
Id. at§ 221, 110 Stat. at 1241-43 (codified at 28 U.S.C. §
1605(a)(7) (2006) (repealed)).
This new "terrorism exception" applied only to (1) a suit
in which the claimant or the victim was a U.S. national,
28 U.S.C. § 1605(a)(7)(B)(ii), and (2) the defendant state
was designated a sponsor of terrorism under State
Department regulations at or around the time of the act
giving rise to **176*764 the suit, § 1605(a)(7)(A)
(referencing 50 U.S.C. App. § 2405G) and 22 U.S.C. §
2371). The AEDPA also set a filing deadline for suits
brought under the new exception at ten years from the
date upon which a plaintiff's claim arose. 28 U.S.C. §
1605(f).
Initially, there was some confusion about whether the new
exception created a cause of action against foreign
sovereigns. See In re Islamic Republic of Iran Terrorism
Litig., 659 F.Supp.2d 31, 42-43 (D.D.C. 2009). Within
five months of enacting the AEDPA, the Congress
clarified the situation with an amendment, codified as a
note to the FSIA, Pub. L. No. 104-208, § 589, 110 Stat.
3009, 3009-172 (1996) (codified at 28 U.S.C. § 1605
note), which provides:
[A]n official, employee, or agent of a foreign state
designated as a state sponsor of terrorism .. . while
acting within the scope of his or her 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 the courts of the United
States may maintain jurisdiction under section
1605(a)(7) of title 28, United States Code, 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).
This amendment was known as the Flatow Amendment
after Alisa Flatow, a Brandeis University student mortally
wounded in a suicide bombing in the Gaza Strip. The
Flatow Amendment, which the Congress intended to deter
state support for terrorism, (1) provided a cause of action
against officials, employees, or agents of a designated
state sponsor of terrorism and (2) authorized the award of
punitive damages against such a defendant. These two
changes marked a departure from the other FSIA
exceptions, none of which provided a cause of action or
allowed for punitive damages. See28 U.S.C. § 1606.
Although it referred in terms only to state officials, for a
time some district courts read the Flatow Amendment and
§ 1605(a)(7) to create a federal cause of action against
foreign states themselves. See, e.g., Kilburn v. Republic of
Iran, 277 F.Supp.2d 24, 36-37 (D.D.C. 2003). But see
Roeder v. Islamic Republic of Iran, 195 F.Supp.2d 140,
171 (D.D.C. 2002). In Cicippio-Puleo v. Islamic Republic
of Iran , we rejected this approach, holding that "neither
28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor
the two considered in tandem, creates a private right of
action against a foreign government." 353 F.3d 1024,
1033 (D.C. Cir. 2004). We based this conclusion upon the
plain text of the Flatow Amendment-which applied only
to state officials-and upon the function of all the other
exceptions to the FSIA, which withdraw immunity but
leave the substantive law of liability unchanged. Id. at
1033-34 (noting the "settled distinction in federal law
between statutory provisions that waive sovereign
immunity and those that create a cause of action").
Because there was no federal cause of action, we
remanded the case "to allow plaintiffs an opportunity to
amend their complaint to state a cause of action under
some other source of law, including state law." Id. at
1036. Hence, a plaintiff proceeding under the terrorism
exception would follow the same pass-through process
that governed an action under the original FSIA
exceptions.
The pass-through approach, however, produced
considerable difficulties. In cases with hundreds or even
thousands of claimants, courts faced a "cumbersome and
tedious" process of applying choice of law rules and
interpreting state law for each claim. See Iran Terrorism
Litig., 659 F.Supp.2d at 48. Differences in substantive
**177*765 law among the states caused recoveries to
vary among otherwise similarly situated claimants,
denying some any recovery whatsoever. See Peterson v.
Islamic Republic of Iran, 515 F.Supp.2d 25, 44-45
(D.D.C. 2007) (denying recovery for intentional infliction
of emotional distress to plaintiffs domiciled in
Pennsylvania and Louisiana while permitting recovery for
plaintiffs from other states).
The Congress addressed these problems in 2008. Section
1083 of the National Defense Authorization Act for Fiscal
Year 2008 (NOAA) repealed § 1605(a)(7) and replaced it
with a new "Terrorism exception to the jurisdictional
immunity of a foreign state." Pub. L. No. 110-181, §
1083, 122 Stat. 3, 338-44 (2008) (hereinafter NOAA)
(codified at 28 U.S.C. § 1605A). The new exception
withdrew immunity, granted jurisdiction, and authorized
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suits against state sponsors of terrorism for "personal
injury or death" arising from the same predicate
acts-torture, extrajudicial killing, aircraft sabotage,
hostage taking, and the provision of material support-as
had the old exception. 28 U.S.C. § 1605A(a)(l).
Jurisdiction for suits under the new exception extended to
"claimants or victims" who were U.S. nationals, and for
the first time, to members of the armed forces and to
government employees or contractors acting within the
scope of their employment. 28 U.S.C. §
1605A(a)(2)(A)(ii). Most important, the new exception
authorized a "[p]rivate right of action" against a state over
which a court could maintain jurisdiction under §
1605A(a). 28 U.S.C. § 1605A(c). By doing so, the
Congress effectively abrogated Cicippio-Puleo and
provided a uniform source of federal law through which
plaintiffs could seek recovery against a foreign sovereign.
Iran Terrorism Litig., 659 F.Supp.2d at 59. A claimant
who was a U.S. national, military service member,
government employee or contractor acting within the
scope of his employment, and the claimant's legal
representative could make use of this cause of action. As
with the Flatow Amendment but unlike § 1605(a)(7), the
NDAA authorized awards of punitive damages under the
new federal cause of action. The exception also provided
claimants a host of other new benefits not relevant here.
Like its predecessor, the new exception contained a
ten-year limitation period on claims brought under §
1605A. Notwithstanding the limitation period, the NDAA
provided two means of bridging the gap between the
now-repealed § 1605(a)(7) and the new § 1605A.
Claimants with claims "before the courts in any form"
who had been adversely affected by the lack of a federal
cause of action in § 1605(a)(7) could move to convert or
refile their cases under § 1605A(c). NDAA § 1083(c)(2).
Furthermore, "[i]f an action arising out of an act or
incident has been timely commenced under section
1605(a)(7) or [the Flatow Amendment]," then a claimant
could bring a "related action" "arising out of the same act
or incident" within 60 days of the entry of judgment in the
original action or of the enactment of the NDAA,
whichever was later. NDAA § 1083(c)(3). Each of these
provisions is examined below in greater detail as they
relate to Sudan's arguments.
B. History of this Litigation
This appeal follows 15 years of litigation against Sudan
arising from the 1998 embassy bombings. In October
2001 plaintiff James Owens filed the first lawsuit against
Sudan and Iran for his personal injuries. Other plaintiffs
joined the Owens action in the following year. These
included individuals (or the legal representatives of
individuals) killed or injured in the bombings, who sought
recovery for their physical injuries (or deaths), and the
family members **178*766 of those killed or injured,
who sued for their emotional distress. The Owens
complaint alleged that the embassy bombings were
"extrajudicial killings" under the FSIA and that Sudan
provided material support for the bombings by sheltering
and protecting al Qaeda during the 1990s.
When Sudan failed to appear, the district court entered an
order of default in May 2003. The default was translated
into Arabic and sent to Sudan in accordance with 28
U.S.C. § 1608(e). In February 2004 Sudan secured
counsel and in March 2004 moved to vacate the default
and to dismiss the Owens action. Sudan argued, among
other things, it remained immune under the FSIA because
the plaintiffs had not adequately pleaded facts showing it
had materially supported al Qaeda or that its support had
caused the bombings. Sudan attached to its motion
declarations from a former U.S. Ambassador to Sudan
and a former FBI agent stating that it neither assisted al
Qaeda nor knew of the group's terrorist aims during the
relevant period.
In March 2005 the district court granted, in part, Sudan's
motion to dismiss and vacated the order of default. Owens
v. Republic of Sudan, 374 F.Supp.2d 1, 9-10 (D.D.C.
2005) (Owens I ). The court, however, allowed the
plaintiffs to amend their complaint in order to develop
more fully their allegations of material support. Id. at 15.
The court further noted that although "the Sudan
defendants severed ties to al Qaeda two years before the
relevant attacks," this timing did not necessarily foreclose
the conclusion that Sudan had "provided material support
within the meaning of the statute and that this support was
a proximate cause of the embassy bombings." Id. at 17.
The plaintiffs then amended their complaint, and Sudan
again moved to dismiss. Sudan once again argued the
complaint had not sufficiently alleged material support
and that any support it provided was not a legally
sufficient cause of the embassy bombings. Assuming the
truth of the plaintiffs' allegations, the district court denied
Sudan's motion in its entirety. Owens v. Republic of
Sudan, 412 F.Supp.2d 99, 108, 115 (D.D.C. 2006)
(Owens II ).
While the motions to dismiss were pending, difficulties
arose between Sudan and its counsel. After filing the first
motion to dismiss, Sudan's initial counsel withdrew due
to a conflict of interest with the Iranian codefendants.
Sudan retained new counsel, but their relationship soon
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deteriorated. Starting in January 2005 new counsel filed
several motions to withdraw, citing Sudan's
unresponsiveness and failure to pay for legal services.
Sudan's last communication with counsel was in
September 2008. The district court eventually granted a
final motion to withdraw in January 2009, leaving Sudan
without representation.
Despite these difficulties, counsel for Sudan continued to
defend their client until the court granted the motion to
withdraw in January 2009. Following the denial of its
second motion to dismiss, Sudan pursued an interlocutory
appeal to this court. Its appeal, in part, challenged the
legal sufficiency of the plaintiffs' allegations that Sudan's
material support had caused the embassy bombings. In
July 2008 we affirmed the district court's decision,
holding that "[a]ppellees' factual allegations and the
reasonable inferences that can be drawn therefrom show a
reasonable enough connection between Sudan's
interactions with al Qaeda in the early and mid-1990s and
the group's attack on the embassies in 1998" to maintain
jurisdiction under the FSIA. Owens v. Republic of Sudan,
531 F.3d 884, 895 (D.C. Cir. 2008) (Owens III ). We then
remanded the case to allow the **179*767 plaintiffs to
pursue the merits of their claims.
Shortly after our decision, several new groups of plaintiffs
filed actions against Sudan and Iran arising from the
embassy bombings. These actions-brought by the
Wamai, Amduso, Mwila, and Osongo plaintiffs-were
filed after the enactment of the new terrorism exception
and before the expiration of its limitation period. This
brought the total number of suits against Sudan to six,
including the original Owens action and a suit filed by the
Khaliq plaintiffs under § 1605(a)(7).
From that point on, neither Sudan nor its counsel
participated in the litigation again until after the 2014
entry of final judgment in Owens. After entering new
orders of defaults against Sudan in several of the pending
actions, the court held a consolidated evidentiary hearing
in order to satisfy a requirement in the FSIA that "the
claimant establish[ ] his claim or right to relief by
evidence satisfactory to the court." 28 U.S.C. § 1608(e).
Without considering this evidence, the court could not
transform the orders of default into enforceable default
judgments establishing liability and damages against
Sudan.
For three days, the district court heard expert testimony
and reviewed exhibits detailing the relationship between
both Iran and Sudan and al Qaeda during the 1990s.
Shortly after this hearing the district court held both
defendants liable for materially supporting the embassy
bombings. Owens v. Republic of Sudan, 826 F.Supp.2d
128, 157 (D.D.C. 2011) (Owens IV ). More specifically,
the district court found Sudan had provided al Qaeda a
safe harbor from which it could establish and direct its
terrorist cells in Kenya and Tanzania. Id. at 139-43, 146.
The court further found Sudan provided financial,
military, and intelligence assistance to the terrorist group,
which allowed al Qaeda to avoid disruption by hostile
governments while it developed its capabilities in the
1990s. Id. at 143-46. These findings established both
jurisdiction over and substantive liability for claims
against Sudan and Iran.
The court also addressed the claims of non-American
family members of those killed or injured in the
bombings. Although those plaintiffs could not make use
of the federal cause of action in § 1605A(c), the court
concluded they could pursue claims under state law, as
was the practice under the previous terrorism exception.
Id. at 153. The court's opinion was translated into Arabic
and served upon Sudan in September 2012.
The district court then referred the cases to special
masters to hear evidence and recommend the amounts of
damages to be awarded. While this process was ongoing,
two new sets of plaintiffs entered the litigation. In July
2012 the Opati plaintiffs filed suit against Sudan,
claiming their suits were timely as a "related action" with
respect to the original Owens litigation. In May 2012 the
Aliganga plaintiffs sought to intervene in the Owens suit.
Notwithstanding the expiration of the ten-year limitation
period starting from the date of the bombings, the district
court allowed both groups of plaintiffs to proceed against
Sudan and to rely upon the court's factual findings of
jurisdiction and liability. The court then referred the
Aliganga and Opati claims to the special masters.
In 2014 the district court entered final judgments in favor
of the various plaintiffs. All told, the damages awarded
against Sudan came to more than $10.2 billion. Family
members, who outnumbered those physically injured by
the bombing, received the bulk of the award-over $7 .3
billion. Of the total $10.2 billion, approximately $4.3
billion was punitive damages. See, e.g., Opati v. Republic
of Sudan, 60 F.Supp.3d 68, 82 (D.D.C. 2014).
**180*768 Within a month of the first judgments, Sudan
retained counsel and reappeared in the district court.
Sudan appealed each case and in April 2015 filed motions
in the district court to vacate the default judgments under
Federal Rule of Civil Procedure 60(b). We stayed the
appeals pending the district court's ruling on the motions.
In those motions, Sudan raised a number of arguments for
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vacatur, most of them challenging the district court's
subject matter jurisdiction. As before, Sudan also attacked
the plaintiffs' evidence. It argued the judgments were
void because they rested solely upon inadmissible
evidence to prove jurisdictional facts, which Sudan
argued was impermissible under § 1608(e). It also argued
the evidence did not show it proximately caused the
bombings because al Qaeda did not become a serious
terrorist threat until after Sudan had expelled bin Laden in
1996.
Sudan raised a host of new arguments as well. In its most
sweeping challenge, Sudan argued it did not provide
material support for any predicate act that would deprive
it of immunity under the FSIA. In making this argument,
Sudan contended the embassy bombings, carried out by al
Qaeda, were not "extrajudicial killings" because that term
requires the involvement of a state actor in the act of
killing. Sudan also contended the claims brought by the
Opati, Aliganga, and Khaliq plaintiffs were barred by the
statute of limitation in § 1605A(b) which, it argued,
deprived the court of jurisdiction to hear their suits.'
Sudan's last jurisdictional challenge took aim at the
family members of those physically injured or killed by
the bombings. Sudan argued that the court could hear
claims only from a person who was physically harmed or
killed by the bombings or the legal representative of that
person. And even if jurisdiction was proper, Sudan
contended, foreign (i.e., non-U.S.) family members could
not state a claim under either the federal cause of action
or state law.
Finally, Sudan raised two nonjurisdictional arguments:
First, it urged the district court to vacate its awards of
punitive damages to the plaintiffs proceeding under state
law, contending § 1605A(c) is the sole means for
obtaining punitive damages against a foreign state.
Second, Sudan argued the court should vacate the default
judgments under Federal Rule of Civil Procedure 60(b)
for "extraordinary circumstances" or "excusable neglect"
on Sudan's part. In support of the latter argument, Sudan
submitted a declaration from the Sudanese Ambassador to
the United States detailing the country's troubled history
of civil unrest, natural disaster, and disease, which
allegedly impeded Sudan's participation in the litigation.
After a consolidated hearing, the district court denied the
motions to vacate in all respects. Owens v. Republic of
Sudan, 174 F.Supp.3d 242 (D.D.C. 2016) (Owens V ).
Sudan appealed and its appeal was consolidated with its
earlier appeals from the final judgments. Sudan's briefs
before this court are directed primarily to the district
court's jurisdiction, and present novel questions of law,
which we review de novo. See Jerez v. Republic of Cuba,
775 F.3d 419, 422 (D.C. Cir. 2014). Ordinarily, all of
Sudan's nonjurisdictional arguments would be forfeited
by reason of its having defaulted in the district court. See
Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d
1543, 1547 (D.C. Cir. 1987). In this case, however, due to
the size of the judgments against Sudan, their possible
effects upon international relations, and the likelihood that
the same arguments will arise in **181 *769 future
litigation, we exercise our discretion to consider some, but
not all, of Sudan's nonjurisdictional objections. See Acree
v. Republic of Iraq, 370 F.3d 41, 58 (D.C. Cir. 2004)
("while we will ordinarily refrain from reaching
non-jurisdictional questions that have not been raised by
the parties ... we may do so on our own motion in
'exceptional circumstances' ").
At the end of the day, we affirm the judgments in most
respects, holding the FSIA grants jurisdiction over all the
claims and claimants present here. We hold also that those
plaintiffs ineligible to proceed under the federal cause of
action may continue to press their claims under state law.
We also vacate all the awards of punitive damages and
certify a question of local tort law to the District of
Columbia Court of Appeals.
We turn first to Sudan's challenges to the district court's
subject matter jurisdiction, starting with those that would
dispose of the entire case. In Part II we address Sudan's
challenge to the meaning of "extrajudicial killings" under
the FSIA. In Part III we review the sufficiency of the
evidence supporting the conclusions that Sudan provided
material support to al Qaeda and that this support was a
jurisdictionally sufficient cause of the embassy bombings.
We then proceed to Sudan's jurisdictional challenges that
would eliminate the claims of particular plaintiffs. In Part
IV we consider whether some of the plaintiffs' claims are
barred by the statute of limitation in the FSIA terrorism
exception, which Sudan contends is jurisdictional. In Part
V we address both jurisdictional and nonjurisdictional
arguments opposing the claims of the family members of
victims physically injured or killed by the embassy
bombings. Finally, we address Sudan's purely
nonjurisdictional arguments in Part VI-whether the new
terrorism exception authorizes punitive damages for a
sovereign's pre-enactment conduct-and Part
VII-addressing Sudan's arguments for vacatur under
Rule 60(b)(l) and 60(b)(6).
II. Extrajudicial Killings
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Sudan first argues the 1998 embassy bombings were not
"extrajudicial killings" within the meaning of the FSIA
terrorism exception. As noted above, § 1605A divests a
foreign state of immunity and grants courts jurisdiction
over cases
in which money damages are sought against a foreign
state for personal injury or death that was caused by ...
extrajudicial killing ... or the provision of material
support or resources for such an act if such act or
provision of material support or resources is engaged in
by an official, employee, or agent of such foreign state
while acting within the scope of his or her office,
employment, or agency.
Because this argument poses a challenge to the court's
subject matter jurisdiction, it was not forfeited by Sudan's
failure to appear in the district court. See Practical
Concepts, 811 F.2d at 1547. This is Sudan's most
sweeping challenge, and, if correct, then the claims of all
the plaintiffs must fail. The district court rejected Sudan's
jurisdictional argument based upon the plain meaning of
"extrajudicial killing." Owens V, 174 F.Supp.3d at
259-66. Reviewing de novo this question of law relating
to our jurisdiction, we agree that "extrajudicial killings"
include the terrorist bombings that gave rise to these
cases.
Section 1605A(h)(7) of the FSIA provides that the term
"extrajudicial killing" has the meaning given to it in §
3(a) of the Torture Victim Protection Act of 1991, which
defines an extrajudicial killing as:
a deliberated killing not authorized by a previous
judgment pronounced by a regularly *770**182
constituted court affording all the judicial guarantees
which are recognized as indispensable by civilized
peoples. Such term, however, does not include any
such killing that, under international law, is lawfully
carried out under the authority of a foreign nation.
Pub. L. No. 102-256, § 3(a), 106 Stat. 73, 73 (1991)
(codified at 28 U.S.C. § 1350 note) (hereinafter TVPA).
On its face, this definition contains three elements: (1) a
killing; (2) that is deliberated; and (3) is not authorized by
a previous judgment pronounced by a regularly
constituted court. The 1998 embassy bombings meet all
three requirements and do not fall within the exception for
killings carried out under the authority of a foreign nation
acting in accord with international law. First, the
bombings caused the death of more than 200 people in
Kenya and Tanzania. The bombings were "deliberated" in
that they involved substantial preparation, meticulous
timing, and coordination across multiple countries in the
region. See Mamani v. Berzain, 654 F.3d 1148, 1155
(11th Cir. 2011) (defining "deliberated" under the TVPA
as "being undertaken with studied consideration and
purpose"). Finally, the bombings themselves were neither
authorized by any court nor by the law of nations.
Therefore, on its face, the FSIA would appear to cover the
bombings as extrajudicial killings.
Sudan offers a host of reasons we should ignore the plain
meaning of "extra judicial killing" in the TVP A and
exclude terrorist bombings like the 1998 embassy attacks
from jurisdiction under the FSIA terrorism exception.
Sudan's arguments draw upon the text and structure, the
purpose, and the legislative history of the TVPA and of
the FSIA terrorism exception. Each of Sudan's arguments
shares the same basic premise: Only a state actor, not a
nonstate terrorist, may commit an "extrajudicial killing."
A. Textual Arguments
We begin, as we must, with the text of the statute. First,
Sudan contends the text of the TVP A, and, by extension
of the FSIA, defines an "extrajudicial killing" in terms of
international law, specifically the Geneva Conventions.
According to Sudan, international law generally and the
Geneva Conventions specifically prohibit only killings
carried out by a state actor. The plaintiffs vigorously
contest both propositions.
1. State action requirements under international law
Sudan bases its argument that principles of international
law supply the meaning of "extrajudicial killing" in the
FSIA upon similarities between the TVP A and the
prohibition on "summary executions" in Common Article
3 of the Geneva Conventions of 1949, which condemns
"the passing of sentences and the carrying out of
executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by
civilized peoples." Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field, art. 3(l)(d), Aug. 12, 1949,
6 U.S.T. 3114, 75 U.S.T.S. 85. The similarities between
the two definitions, Sudan contends, shows the Congress
intended to define an "extra judicial killing" in the TVP A
with reference to principles of international law adopted
in the Geneva Conventions.
To Sudan, this is of critical importance because the
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Geneva Conventions and international law, it argues,
proscribe killings only when committed by a state agent,
not when perpetrated by a nonstate actor. Three pieces of
evidence are said to demonstrate *771 **183 this
limitation. First, Sudan notes, the United Nations adopted
a resolution in 1980 condemning as inconsistent with
international law "[e]xtra-legal executions" carried out by
"armed forces, law enforcement or other governmental
agencies." Congress on the Prevention of Crime and the
Treatment of Offenders Res., A/Conf.87/L.ll (Sep. 5,
1980). Second, Sudan cites a United Nations annual
report, S. Amos Wako (Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions),
Summary or Arbitrary Executions, <J[<J[ 74-85, U.N. Doc.
E/CN.4/1983/16 (Jan. 31, 1983), which describes
"extralegal executions" and "summary executions" in
terms suggesting state involvement. And third, Sudan
references an online database of the United Nations,
which links the term "extrajudicial killing" to the
definition of "extralegal execution." U.N. Terminology
Database,
http:/ /untermportal.un.org/UNTERM/display/Record/UN
HQ/extra-legal_execution/c253667 (last visited July 19,
2017).
Each of these references to international law is both
inapposite and rebutted by the plaintiffs. If Sudan means
to say the TVP A incorporates the prohibition against a
"summary execution" in the Geneva Conventions, then it
must show what was meant by that term in the Geneva
Conventions themselves. In doing so, however, Sudan
principally relies upon U.N. documents published more
than a quarter century after the ratification of the Geneva
Conventions in 1949, rather than the deliberations over
the proposed Conventions, which Sudan does not cite at
all. Odder still, none of these documents ( or the
terminology database) actually says the Geneva
Conventions proscribe only "summary executions"
committed by a state actor. See Summary or Arbitrary
Executions, supra p. 22, <J[<J[ 35-36 (noting Article 3 of the
Geneva Conventions prohibits "murder" in general and
"also specifically prohibits the passing of sentences and
the carrying out of executions without previous
judgement pronounced by a regularly constituted court").
Indeed, the plaintiffs present reasons to doubt whether the
Geneva Conventions in specific, or international law in
general, prohibit only killings by a state actor. As the
plaintiffs note, Article 3 of the First Convention prohibits
"violence to life and person, in particular murder of all
kinds." Geneva Convention, art. 3(l)(a), Aug. 12, 1949, 6
U.S.T. 3114, 75 U.S.T.S. 85. Likewise, the U.N.
Terminology Database lists "[k]illings committed by
vigilante groups" as an example of an "extrajudicial
killing." And finally, a "Handbook" published by the
U.N. Special Rapporteur on Summary or Arbitrary
Executions contains a full chapter on "killings by
non-state actors and affirmative state obligations," which
states that "Human rights and humanitarian law clearly
apply to killings by non-State actors in certain
circumstances." Project on Extrajudicial Executions, UN
Special Rapporteur on Extrajudicial Executions
Handbook, <JI 45,
http://www.extrajudicialexecutions.org/application/media/
Handbook% 20Chapter% 203-Responsibility% 20of%
20states% 20for% 20non-state% 20killings.pdf (last
visited July 19, 2017).
This does not mean Sudan's interpretation of international
law as it pertains to summary executions (as opposed to
extrajudicial killings) is wrong or that direct state
involvement is not needed for certain violations of
international law. Rather, the point is that the role of the
state in an extrajudicial killing appears less clear under
international law than Sudan would have us believe;
indeed it appears less clear than the definition of an
"extrajudicial killing" in the TVPA itself. Accordingly,
we doubt the Congress intended categorically to preclude
state liability for killings by nonstate actors by adopting
**184*772 a definition of "extrajudicial killing" similar
to that of a "summary execution" in the Geneva
Conventions.
2. International law and the TVP A
More important, even if Sudan's interpretation of the
Geneva Conventions and international law is correct, its
argument would fail because the TVP A does not appear
to define an "extrajudicial killing" coextensive with the
meaning of a "summary execution" ( or any similar
prohibition) under international law. For example, the
TVP A does not adopt the phrasing of the Geneva
Conventions wholesale. Rather, as the plaintiffs point out,
the TVP A substitutes the term "deliberated killing" for
"the passing of sentences and the carrying out of
executions" in the Geneva Conventions. While "the
passing of sentences and the carrying out of executions"
strongly suggests at least some level of state involvement,
a nonstate party may commit a "deliberated killing" as
readily as a state actor. Indeed, several other statutes
contemplate "deliberate" attacks by nonstate entities,
including terrorist groups. See, e.g., 6 U.S.C. § 1169(a)
(requiring the Secretary of Transportation to assess
vulnerability of hazardous materials in transit to a
"deliberate terrorist attack"); 42 U.S.C. § 16276
(mandating research on technologies for increasing "the
security of nuclear facilities from deliberate attacks").
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Due to the substitution of "deliberated" killings for "the
passing of sentences and the carrying out of executions,"
the inference of direct state involvement is much less
strong in the TVP A than in the Geneva Conventions. The
difference between the definition in the TVP A and the
prohibition in the Geneva Conventions also signals the
Congress intended the TVP A to reach a broader range of
conduct than just "summary executions." For the court to
rely upon the narrower prohibition in the Geneva
Conventions would contravene the plain text of the
TVPA, which is, after all, the sole "authoritative
statement" of the law. See Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct.
2611, 162 L.Ed.2d 502 (2005).
Resisting this conclusion, Sudan points to two phrases
that, it contends, impose a state actor requirement upon
the definition of an extra judicial killing in the TVP A.
First, Sudan notes that an extrajudicial killing must not be
one "authorized by a previous judgment pronounced by a
regularly constituted court." As Sudan would have it, the
"only killings that can be reasonably be imagined to be
authorized by a 'previous judgment' are those by state
actors." Regardless whether Sudan is right on this point,
the argument does not imply what Sudan intends. If only
a state actor may lawfully kill based upon a "previous
judgment," then all killings committed by a nonstate actor
are, by definition, not "authorized by a previous
judgment." Therefore, only a killing committed by a state
actor might not be an "extrajudicial killing," that is, if it
was "authorized by a previous judgment pronounced by a
regularly constituted court." Accepting Sudan's premise,
no other outcome can "reasonably be imagined."
Similarly, Sudan argues the second sentence in the
definition of an "extra judicial killing" in the TVP A
anchors the meaning of the first sentence in international
law which, in Sudan's view, prohibits only summary
executions by state actors. Even accepting Sudan's view
of international law, we are not persuaded. In the first
sentence of § 3(a), the Congress defined the proscribed
conduct (i.e., a "deliberated killing") in terms that
extended beyond the prohibition on a "summary
execution" under international law. The second sentence
excludes from the **185*773 definition of "extrajudicial
killing" "any ... killing that, under international law, is
lawfully carried out under the authority of a foreign
nation." This ensured that the more expansive prohibition
of the first sentence would not reach the traditional
prerogatives of a sovereign nation. Were "extrajudicial
killings" no broader than "summary executions," the
limitation in international law of what constitutes an
"extrajudicial killing" would be unnecessary because, by
Sudan's own argument, a "summary execution" always
violates international law. Therefore, Sudan's
interpretation would make superfluous the reference to
killings "lawfully carried out" "under international law,"
contrary to the "cardinal principle of statutory
construction that we must give effect, if possible, to every
clause and word of a statute." See Williams v. Taylor, 529
U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)
(internal quotation marks and citation omitted).
Moreover, the reference to international law in the second
sentence of§ 3(a) of the TVPA highlights its omission in
the first sentence. Had the Congress intended the
definition of an "extrajudicial killing" to track precisely
with that of a "summary execution" under international
law, § 3(a) could have expressly referenced international
law in both the prohibition and its limitation. That
approach is found elsewhere in the FSIA, see28 U.S.C. §
1605(a)(3) (authorizing jurisdiction where "rights in
property [are] taken in violation of international law"), as
well as in other statutes, see18 U.S.C. § 1651 (proscribing
"the crime of piracy as defined by the law of nations").
Indeed, the Congress specifically defined other predicate
acts in § 1605A by reference to international treaties,
see28 U.S.C. § 1605A(h)(l),(2) (defining "aircraft
sabotage" and "hostage taking" with reference to
international treaties), but referenced only a U.S. statute,
the TVP A, in its definition of "extra judicial killing." That
the Congress incorporated international law expressly into
other jurisdictional provisions undermines the inference
that it intended implicitly to do so here. See Dep't of
Homeland Sec. v. MacLean, - U.S. --, 135 S.Ct.
913, 919, 190 L.Ed.2d 771 (2015) ("Congress generally
acts intentionally when it uses particular language in one
section of a statute but omits it in another").
3. State action requirements in the TVP A and the
FSIA terrorism exception
The plaintiffs provide another persuasive reason Sudan's
textual arguments are flawed. The TVPA authorizes an
action only for harms arising from the conduct of a state
actor. See TVPA § 2(a) (providing a cause of action
against an "individual who, under actual or apparent
authority, or color of law, of any foreign nation" engages
in torture or extrajudicial killing). Sudan argues the state
actor requirement for a suit under the TVP A is
"necessarily incorporated" in § 3(a) and therefore applies
to those actions arising from "extrajudicial killings" under
the FSIA. The limitation of actions to state actors,
however, is found not in§ 3(a) but in§ 2(a) of the TVPA.
As the plaintiffs note, when passing the current and prior
FSIA terrorism exceptions, the Congress each time
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incorporated the section of the TVP A that defined an
"extrajudicial killing" but not the section that limited the
cause of action under the TVP A to state actors. If the
Congress had wanted to limit extrajudicial killings to state
actors, then it could have incorporated both sections of the
TVP A into the FSIA terrorism exception. That it did not
compels us to conclude the state actor limitation in the
TVP A does not transfer to the definition of an
"extrajudicial killing" **186*774 in the FSIA. Cf
Sebelius v. Cloer, 569 U.S. 369, 133 S.Ct. 1886, 1894,
185 L.Ed.2d 1003 (2013) (declining to apply limitations
from one section of a statute when the text of another
section does not cross-reference the first section).
Indeed, the reason the Congress declined to incorporate
the state-actor limitation in the TVP A is plain on the face
of the FSIA terrorism exception. As the plaintiffs observe,
the TVP A and the FSIA share a similar structure. Each
statute defines the predicate acts that give rise to liability
in one section-TVPA § 3 and FSIA § 1605A(h)-and
then limits who may be subjected to liability in
another-TVPA § 2 and FSIA §§ 1605A(a)(l) and (c).
Both statutes also require a plaintiff to show a certain type
of nexus to a foreign sovereign. In the TVP A, a state
official must act ''under actual or apparent authority, or
color of law" of a foreign sovereign. In the FSIA, liability
arises when the state official, employee, or agent acting
within the scope of his authority either directly commits a
predicate act or provides "material support or resources"
for another to commit that act. If the more stringent
state-actor limitation in the TVP A traveled with the
definition of an "extrajudicial killing" in that statute, then
it would all but eliminate the "material support" provision
of § 1605A(a), at least with respect to extrajudicial
killings. For example, § 1605A(a) would extend
jurisdiction over a sovereign that did not directly commit
an extrajudicial killing only if an official of the defendant
state materially supported a killing committed by a state
actor from a different state. We seriously doubt the
Congress intended the exception to immunity for
materially supporting an extrajudicial killing to be so
narrow.
Sudan attempts to avoid the conclusion that the FSIA
does not adopt the state-actor limitation in the TVP A in
two ways. First, Sudan contends the introductory clause
of § 3(a) implicitly incorporates the state actor limitation
of § 2(a). This clause states that an "extrajudicial killing"
is defined "[f]or the purposes of this Act." That
supposedly indicates the Congress intended to import the
state actor limitation of § 2(a) into the definition of an
extrajudicial killing in§ 3(a). But Sudan's reading of this
phrase leads to an illogical conclusion. A statutory
definition made expressly "[f]or the purposes of this Act"
informs our understanding of the entire statute. In other
words, the definitions in TVP A § 3 govern the use of
those defined terms elsewhere in the Act. Under Sudan's
interpretation, however, the reverse would occur: in order
to understand the meaning of a defined term, we would
have to look to the remainder of the statute, and not to the
definition itself. What then, we wonder, would the
definition contribute to the statute? Would it be wholly
redundant, a conclusion that conflicts with our usual
interpretive presumptions? See Nat'l Ass'n of Home
Builders v. Defs. of Wildlife, 551 U.S. 644,669, 127 S.Ct.
2518, 168 L.Ed.2d 467 (2007). Or, if not redundant, how
would a court then apply the definition to terms used in
the remainder of the statute if the remainder of the statute,
in tum, gave meaning to the definition? Given these
paradoxes, the phrase "[f]or the purposes of this Act"
cannot mean what Sudan contends. Instead, that phrase
simply means that the definition of an "extrajudicial
killing" in TVPA § 3(a) informs the remainder of the
TVPA (and, by extension, the FSIA), and not the reverse.
Second, Sudan contends the definition of an "extrajudicial
killing" in the TVP A implicitly incorporates international
law (and the supposed state-actor limitation therein) even
without reference to the state-actor limitation in § 2(a).
Here Sudan relies principally upon a dictum in a Second
Circuit *775**187 opinion discussing the TVPA in a case
arising under the Alien Tort Claims Act (ATCA), which
expressly incorporates international law: "torture and
summary execution-when not perpetrated in the course
of genocide or war crimes-are proscribed by
international law only when committed by state officials
or under color of law." Kadic v. Karadzic, 70 F.3d 232,
243 (2nd Cir.1995). The court further noted that "official
torture is prohibited by universally accepted norms of
international law, and the Torture Victim Act confirms
this holding and extends it to cover summary execution."
Id. at 244 (citation omitted). This, Sudan contends, shows
the TVPA definition of an "extrajudicial killing" (and not
just the TVPA in general) draws upon international law.
The court's discussion in that case, however, relied not
only upon the definition of an "extrajudicial killing" in
TVPA § 3(a) but also upon the limitation of the cause of
action to state actors in TVPA § 2(a). Id. at 243. Indeed,
the court later separately summarized the two provisions
of the TVPA, distinguishing § 2(a), which "provides a
cause of action" against an individual acting under state
authority, from § 3, which "defines the terms
'extrajudicial killing' and 'torture.'" Id. at 245.
Sudan's argument that the definitions in the TVPA
incorporate international law is flawed as a matter of
statutory interpretation. If the definition of an
"extrajudicial killing" (and "torture") in TVPA § 3(a)
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already had a state actor limitation from international law,
then the additional state actor limitation in § 2(a) would
be surplusage. See Gustafson v. Alloyd Co., 513 U.S. 561,
574, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (instructing
courts in interpreting a statute to "avoid a reading which
renders some words altogether redundant"). That the
Congress included § 2(a) in the TVPA therefore implies
either that the definition of extrajudicial killing in § 3(a)
of the FSIA does not incorporate international law or that
international law contains no state actor limitation. Either
way, Sudan is out of luck.
In sum, Sudan's textual arguments that an extrajudicial
killing requires a state actor all fail. Even if international
law contained such a limitation-a proposition we doubt
but do not decide-the TVP A does not incorporate
international law ( or any limitations therein) into its
definition of an "extrajudicial killing." Because the FSIA
terrorism exception references only the definitions in
TVPA § 3, and not the limitation to state actors in TVPA
§ 2(a), nothing in the text of the FSIA makes a state actor
a prerequisite to an extrajudicial killing.
B. Statutory Purpose
Without a viable textual basis for its pos1t10n, Sudan
argues the purpose of the TVP A and the FSIA extend
only to an "extrajudicial killing" committed by a state
actor. Even if we could ignore the statutory text in pursuit
of its supposed purpose, Sudan's arguments from the
purpose of the statutes would still not be convincing.
With respect to the purpose of the TVP A, Sudan pursues
a line of reasoning parallel to that of its textual arguments:
Because the TVP A was intended to "carry out obligations
of the United States under the United Nations Charter and
other international agreements ... by establishing a civil
action for recovery of damages from an individual who
engages in torture or extrajudicial killing," Pub. L. No.
102-256, 106 Stat. at 73 (preamble), Sudan contends the
supposed state-actor requirement for a killing to violate
international law also limits the definition of an
"extra judicial killing" in the TVP A and hence the
jurisdictional requirements of the FSIA. Even if
international law both motivated enactment *776**188 of
the TVP A and limits extra judicial killing to a killing by
state actor, Sudan's argument about the purpose of the
TVP A still would fail. The TVP A may well be intended
to carry out certain international obligations, but this
purpose is reflected in the TVP A as a whole, not in each
individual provision viewed in isolation. One would
struggle to find a distinct purpose in the definition section
of the TVP A, which neither creates rights nor imposes
duties, divorced from the broader statute. When one
statute, such as the FSIA, incorporates a definition from
another statute, here the TVP A, it imports only the
specified definition and not the broader purpose of the
statute from which it comes.
In any event, the different purposes of the TVP A and the
FSIA are plain on the face of those statutes. The TVP A
targets individual state officials for their personal
misconduct in office, while the terrorism exception to the
FSIA targets sovereign nations in an effort to deter them
from engaging, either directly or indirectly, in terrorist
acts.
Sudan's own arguments tacitly admit the FSIA serves a
different purpose than the TVP A, but it again frames this
purpose in terms of international law. To Sudan, the FSIA
serves to withdraw sovereign immunity only for "certain
universally defined and condemned acts" that are "firmly
grounded in international law." Once again Sudan
contends, this excludes killings committed by nonstate
terrorists because international law proscribes killings
only when committed by a state actor. Furthermore, §
1605A, Sudan contends, should be read to exclude acts of
terrorism because terrorism lacks "universal
condemnation, or even [an] accepted definition ... under
international law." Other predicate acts included in §
1605A, particularly aircraft sabotage and hostage taking,
are inconsistent with this reading of the FSIA. As the
plaintiffs and the district court recognized, "[f]or the past
fifteen years it has been hard to think of a more
quintessential act of terrorism than the purposeful
destruction of a passenger aircraft in flight-yet such an
act is manifestly covered by § 1605A." Owens V, 174
F.Supp.3d at 264. Indeed, both aircraft sabotage and
hostage taking are more often committed by a nonstate
terrorist than by a state actor, and both often result in
extrajudicial killings. Moreover, the definitions of these
acts in the FSIA clearly do not require state action. 28
U.S.C. §§ 1605A(h)(l) (referencing the Convention for
the Suppression of Unlawful Acts Against the Safety of
Civil Aviation, art. 1, Sept. 23, 1971, 24 U.S.T. 564, 974
U.N.T.S. 177 (proscribing aircraft sabotage committed by
"[a]ny person")); 1605A(h)(2) (referencing the
International Convention Against the Taking of Hostages,
art. 1, Dec. 17, 1979, 1316 U.N.T.S. 205 (proscribing
hostage taking by "[a]ny person")). It would be more than
odd if a provision designed to sanction acts "firmly
grounded in international law" -but not international
terrorism-included only acts synonymous with
international terrorism while excluding other violations of
international law, such as genocide, not closely associated
with terrorist groups. Against this backdrop, it also strains
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belief that the Congress would assert jurisdiction over
claims against a state that materially supports nonstate
terrorists who kill via aircraft sabotage or hostage taking,
yet deny jurisdiction for similarly supported killings
caused by a truck bombing or a kidnapping. It is far more
likely the Congress intended to penalize a state's
provision of material support for terrorist killings in
general, rather than to codify broad principles of
international law or to regulate the specific way
state-supported terrorists go about their horrific deeds.
Were the law otherwise, designated state sponsors of
terrorism could effectively contract **189*777 out certain
terrorist acts and avoid liability under the FSIA.
As the district court correctly recognized, § 1605A strives
to hold designated state sponsors of terrorism accountable
for their sponsorship of terror, regardless whether they
commit atrocities themselves or aid others in doing so.
Owens V, 174 F.Supp.3d at 262. Therefore, the purpose of
the statute clearly embraces liability for the embassy
bombings here in question.
C. Statutory History
Sudan next resorts to the legislative history of the FSIA
and the TVP A to explain why an "extra judicial killing"
requires state involvement. The short answer to its long
and winding argument through the characteristically
inconclusive background materials is that when the
meaning of a statute is clear enough on its face, "reliance
on legislative history is unnecessary." See Mohamad v.
Palestinian Auth., 566 U.S. 449, 132 S.Ct. 1702, 1709,
182 L.Ed.2d 720 (2012) (citation omitted).
Subsequent legislation, on the other hand, because it is
enacted and not just compiled, may inform our
understanding of a prior enactment with which it should
be read in harmony. In this instance, the Congress made
clear that an extrajudicial killing includes a terrorist
bombing when, in 1996, it enacted the Flatow
Amendment to the FSIA to provide a federal cause of
action against state officials who had committed or
materially supported one of the predicate acts listed in §
1605(a)(7), including an extrajudicial killing. SeePub. L.
No. 104-208, § 589, 110 Stat. at 3009-172. The Flatow
Amendment responded to a suicide bombing in Israel,
carried out by a nonstate terrorist group supported by
Iran; it aimed to deter terrorism by making officials of
states that sponsor terrorism liable for punitive damages.
We do not believe the Congress would provide a cause of
action aimed at killings over which it had not authorized
jurisdiction.
Subsequent events in the Flatow saga reinforce this
conclusion. Immediately following passage, relatives of
the victim sued Iran under the Amendment, and the
district court asserted jurisdiction based upon this
"extrajudicial killing." Flatow, 999 F.Supp. at 18. The
plaintiffs won a default judgment but could not collect
due to Iran's lack of attachable assets. In 2000 the
Congress again responded, passing a compensation
scheme to pay individuals who "held a final judgment for
a claim or claims brought under section 1605(a)(7) of title
28," including the Flatows. See Victims of Trafficking
and Violence Protection Act of 2000, Pub. L. No.
106-386, § 2002(a)(2)(A), 114 Stat. 1464, 1541-43
(authorizing payment to claimants with judgments against
Iran, which included the Flatows); H.R. Rep. No.
106-939, at 116 (2000). This legislation too would make
little sense if the judgments themselves were void because
no extrajudicial killing had occurred.
Finally, after courts had applied the FSIA terrorism
exception to terrorist bombings for over a decade,2 the
Congress **190*778 reenacted the same predicate acts in
§ 1605(a)(7) when authorizing the new FSIA exception
under § 1605A. The Congress thereby ratified the Flatow
court's understanding-and those of every other court
since then-that a nonstate actor may commit an
extrajudicial killing. See Lorillard v. Pons, 434 U.S. 575,
580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978) ("Congress is
presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation
when it re-enacts a statute without change"). Now, after
more than two decades of consistent judicial application
of the FSIA, narrowing the term "extrajudicial killing" to
include only killings committed by a state actor would
contravene the Congress's revealed intent in repeatedly
authorizing judicial remedies for victims of terrorist
bombings.
To summarize, the plain meaning of § 1605A(a) grants
the courts jurisdiction over claims against designated state
sponsors of terrorism that materially support extrajudicial
killings committed by nonstate actors. Contrary to
Sudan's contention, the purpose and statutory history of
the FSIA terrorism exception confirm this conclusion.
Therefore, this court may assert jurisdiction over claims
arising from al Qaeda's bombing of the U.S. embassies in
1998 if the plaintiffs have adequately demonstrated
Sudan's material support for those bombings.
III. Sufficiency of the Evidence Supporting
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Jurisdiction
Sudan's weightiest challenge to jurisdiction relates to the
admissibility and sufficiency of the evidence that
supported the district court's finding of jurisdiction. As
discussed above, § 1605A(a)(l) of the FSIA grants
jurisdiction and withdraws immunity for claims "caused
by an act of ... extrajudicial killing ... or the provision of
material support or resources for such an act."
In order to establish the court's jurisdiction, the plaintiffs
in this case must show (1) Sudan provided material
support to al Qaeda and (2) its material support was a
legally sufficient cause of the embassy bombings. See
Kilburn v. Socialist People's Libyan Arab Jamahiriya,
376 F.3d 1123, 1127 (D.C. Cir. 2004) (treating causation
as a jurisdictional requirement). Sudan challenges the
district court's factual findings on both accounts. Because
the elements of material support and causation are
jurisdictional, Sudan may contest them on appeal even
though it forfeited its right to contest the merits of the
plaintiffs' claims. See Practical Concepts, 811 F.2d at
1547. This does not mean, however, that the plaintiffs on
appeal must offer the same quantum of evidence needed
to show liability in the first instance. Establishing material
support and causation for jurisdictional purposes is a
lighter burden than proving a winning case on the merits.
See Agudas Chasidei Chabad of U.S. v. Russian
Federation, 528 F.3d 934, 940 (D.C. Cir. 2008).
In its opinion rejecting Sudan's motion to vacate the
default judgments, the district court identified two bases
upon which the plaintiffs established material support and
causation for the purpose of jurisdiction. For plaintiffs
proceeding under the federal cause of action in §
1605A(c), the court-following then-binding Circuit
precedent-held the plaintiffs had established jurisdiction
by making a "non-frivolous" claim that Sudan materially
supported al Qaeda and that such support proximately
**191 *779 caused their injuries. Owens V, 174 F.Supp.3d
at 272-75. Since that decision, the Supreme Court has
overruled the precedent upon which the district court
relied, requiring a plaintiff to prove the facts supporting
the court's jurisdiction under the FSIA, rather than simply
to make a "non-frivolous" claim to that effect. Bolivarian
Republic of Venezuela v. Helmerich & Payne Int'[
Drilling Co., - U.S. --, 137 S.Ct. 1312, 1316, 197
L.Ed.2d 663 (2017). The Court's decision eliminates the
first basis for the district court's jurisdictional holding.
The decision in Helmerich, however, left intact the district
court's second basis for concluding the plaintiffs had
sufficiently shown material support and causation in this
case. For reasons no longer relevant, the district court
concluded that plaintiffs who are ineligible to use the
federal cause of action in § 1605A(c)-namely, victims or
claimants who were not U.S. nationals, military service
members, or government employees or
contractors-could not establish jurisdiction simply by
making a non-frivolous claim of material support and
causation. Owens V, 174 F.Supp.3d at 275. Consequently,
the court required those plaintiffs to offer evidence
proving these jurisdictional elements. Id. First in its 2011
opinion on liability and again in its 2016 opinion denying
vacatur, the district court weighed the plaintiffs' evidence
of material support and causation and concluded it
satisfied the jurisdictional standard. Owens V, 17 4
F.Supp.3d at 276; Owens IV, 826 F.Supp.2d at 150-51.
Because the court's finding of Sudan's material support
for the 1998 embassy bombings plainly applies to all
claimants and all claims before this court, Sudan can
prevail in its challenge to material support and causation
only if the district court erred in its factual findings of
jurisdiction. We conclude it did not.
In each of the cases, the plaintiffs' evidence was received
at the three-day evidentiary hearing held by the district
court in October 2010. The court held that hearing to
satisfy the FSIA requirement that, in order to secure a
default judgment, a claimant must "establish[ ] his claim
or right to relief by evidence satisfactory to the court." 28
U.S.C. § 1608(e). At the hearing, the court received
evidence of both Iran's and Sudan's support for al Qaeda
in advance of the embassy bombings, but we limit our
discussion here to the evidence pertaining to Sudan.
In evaluating Sudan's evidentiary arguments, we proceed
in three steps. First, we summarize the proceedings at the
2010 evidentiary hearing and the facts presented by the
plaintiffs and their expert witnesses. Then we consider
Sudan's two challenges to this evidence. In the first,
Sudan argues the district court relied upon inadmissible
evidence to conclude that it materially supported al
Qaeda. In the second, Sudan contends that, even if
admissible, the evidence presented could not establish
material support and causation as a matter of law.
A. The Evidentiary Hearing
At the October 2010 evidentiary hearing the plaintiffs
presented evidence from a variety of sources. Reviewing
this evidence as a whole, the district court concluded it
sufficed both to establish jurisdiction and to prove
Sudan's liability on the merits. We first describe the
sources of evidence the court received and then briefly
summarize the factual findings the court drew from this
evidence.
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1. The sources of evidence presented
As is apparent from the opinions of the district court, the
testimony of expert witnesses and al Qaeda operatives
was of critical importance to its factual findings.
**192*780 For this reason, we discuss the experts' and
operatives' testimony first and in greatest detail. The
plaintiffs produced three expert witnesses and prior
recorded testimony from three former members of al
Qaeda.
First, the plaintiffs called terrorism consultant Evan
Kohlmann to testify about the relationship between Sudan
and al Qaeda in the 1990s. Kohlmann advised
government and private clients on terrorist financing,
recruitment, and history. He has authored a book and
several articles on terrorism and has testified as an expert
in multiple criminal trials. Kohlmann based his opinions
regarding Sudan's support for al Qaeda upon a review of
secondary source materials, including but not limited to
the exhibits introduced at the hearing, testimony from
criminal trials, and firsthand interviews he conducted with
al Qaeda affiliates over the past decade. Kohlmann
testified that this information was of the type routinely
relied upon by experts in the counterterrorism field.
Next, the court received a written expert report from Dr.
Lorenzo Vidino on "Sudan's State Sponsorship of al
Qaeda." Dr. Vidino was a fellow at the Helfer Center for
Science and International Affairs, Kennedy School of
Government, at Harvard University. Like Kohlmann,
Vidino has authored books and articles on terrorism and
has previously testified in federal court on Sudan's
support for al Qaeda. Vidino based his report upon open
source materials initially gathered around 2004, which he
reviewed and updated for the present case.
The district court also received live testimony and a
written report from Steven Simon, a security consultant
and Special Advisor for Combatting Terrorism at the
Department of State. From 1995 to 1999, during which
time al Qaeda bombed the embassies, Simon served on
the National Security Council (NSC) as Senior Director
for Transnational Threats. His responsibilities at the NSC
included directing counterterrorism policy and operations
on behalf of the White House. After his government
service, Simon published a book and several articles on
international terrorism and taught graduate courses on
counterterrorism.
The court also heard recorded trial testimony from three
former al Qaeda operatives. In particular, the plaintiffs'
star witness, Jamal al Fadl, cast a long shadow over the
proceedings. al Fadl was a Sudanese national and former
senior al Qaeda operative turned FBI informant. Now in
the witness protection program, in 2001 he testified at the
criminal trial of U sama bin Laden and other terrorists
arising from the African embassy bombings. Al Fadl was
particularly well-suited to address the relationship
between al Qaeda and the government of Sudan in the
1990s because he served then as a principal liaison
between the terrorist group and Sudanese intelligence. He
had also been instrumental in facilitating al Qaeda's
relocation from Afghanistan to Sudan in 1991 and had
assisted the group in acquiring properties there. Although
al Fadl did not testify at the evidentiary hearing, his prior
testimony provided much of the factual basis for the
expert witnesses' opinions.
The court also received transcripts of prior testimony
from two other al Qaeda operatives: Essam al Ridi and
L'Houssaine Kherchtou. Both al Ridi and Kherchtou were
members of al Qaeda when the terrorist group was based
in Sudan, and both testified at the bin Laden trial. They
testified, based upon firsthand knowledge, about the
Sudanese government and military facilitating al Qaeda's
movement throughout East Africa and protecting al
Qaeda leadership. The plaintiffs also submitted
*781 **193 a deposition from al Ridi prepared for the
instant case.
In addition to this witness testimony, the court viewed
videos produced by al Qaeda describing its move to
Sudan and its terrorist activities thereafter. And finally,
the court considered reports from the U.S. Department of
State and the Central Intelligence Agency describing
Sudan's relationship with al Qaeda in the 1990s.3
2. The district court's findings of fact
From the plaintiffs' evidence, the district court found that
Sudan had provided material support to al Qaeda and that
such support caused the embassy bombings. This support
was provided in several ways, which we recount in a
much abbreviated form.
First, the district court found Sudan provided al Qaeda a
safe harbor from which it could direct its operations.
Owens N, 826 F.Supp.2d at 139-43. This began with the
overthrow of the Sudanese government in 1989 by Omar
al Bashir, leader of the Sudanese military, and Hassan al
Turabi, head of the National Islamic Front (NIF), Sudan's
most powerful political party. Kohlmann and Simon
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testified that al Turabi initiated contact with al Qaeda and
other extremist groups, encouraging them to relocate to
Sudan. Al Bashir formalized this initial outreach with a
1991 letter of invitation to Usama bin Laden. According
to all three experts, Sudan's outreach to al Qaeda was part
of a broader strategy of inviting radical Islamist groups to
establish bases of operations in the country, which is
confirmed by the State Department Patterns of Global
Terrorism reports. See U.S. Dep't of State, Patterns of
Global Terrorism: 1991, at 3 (1991) ("The government
reportedly has allowed terrorist groups to train on its
territory and has offered Sudan as a sanctuary to terrorist
organizations"). Sudan's extensive ties to terrorist groups
prompted the Department of State to designate Sudan as a
state sponsor of terrorism in August 1993. U.S. Dep't of
State, Patterns of Global Terrorism: 1993, at 25 (1994).
In 1991 al Qaeda accepted Sudan's invitation. According
to Kohlmann and Simon, the invitation benefited both bin
Laden and the Sudanese government. For bin Laden, it
allowed al Qaeda to depart an increasingly unstable
Afghanistan and relocate closer to its strategic interests in
the Middle East. For Sudan, outreach to terrorist groups
provided leverage against the government's enemies at
home and **194*782 abroad and advanced al Turabi's
ideological ambition for Sudan to become "the new haven
for Islamic revolutionary thought." Sudan also viewed al
Qaeda as a source of domestic investment as bin Laden
was rumored to be extremely wealthy and was
well-known as a financier of the mujahedeen insurgency
in Afghanistan.
Once bin Laden had determined Sudan was a trustworthy
partner, al Qaeda moved its operations there. All three
experts described al Qaeda purchasing several properties
in Sudan, including a central office and a guesthouse in
Khartoum, and starting terrorist training camps on farms
throughout the country. Al Fadl personally participated in
some of these transactions. For a time, according to
Kohlmann, al Qaeda even shared offices with the al
Turabi's NIF party in Khartoum. The close relationship
between al Qaeda and the Sudanese government
continued throughout the early 1990s, according to
Kohlmann and Vidino, even after bin Laden publicized
his intent to attack American interests in a series of fatwas
and after al Qaeda members claimed responsibility for the
killing of U.S. soldiers in Mogadishu, Somalia. For
example, bin Laden appeared in multiple television
broadcasts with al Bashir and al Turabi celebrating the
completion of infrastructure projects financed, in part, by
bin Laden. Sudanese intelligence officials also worked
hand-in-glove with al Qaeda operatives to screen
purported al Qaeda volunteers entering the country in
order "to ensure that they were not seeking to infiltrate
bin Laden's organization on behalf of a foreign
intelligence service." Al Fadl personally took part in these
efforts.
Sudan also helped al Qaeda develop contacts with other
terrorist organizations. In 1991 the NIF organized an
unprecedented gathering of terrorist organizations from
around the world in Khartoum at the Popular Arab and
Islamic Congress. Several of these groups, including the
Egyptian Islamic Jihad (EIJ), whose membership would
later overlap with that of al Qaeda, and the Iranian-backed
Hezbollah, which later provided training to al Qaeda
operatives, also established bases in Sudan. According to
Kohlmann and Simon, Sudanese intelligence actively
assisted al Qaeda in forming contacts with these groups,
allowing the nascent organization to acquire skills and to
recruit members from the more experienced groups that it
would later use with devastating effect.
Although Sudan expelled bin Laden in 1996 under
international pressure, Kohlmann, Vidino, and one other
expert testified that some al Qaeda operatives remained in
the country thereafter. They based this conclusion, in part,
upon an unclassified report of the CIA, dated December
1998. A State Department report from 1998, published
after the embassy bombings, reinforced the conclusion
that "Sudan continued to serve as a meeting place, safe
haven, and training hub for a number of international
terrorist groups, particularly Usama Bin Ladin's al-Qaida
organization." U.S. Dep't of State, Patterns of Global
Terrorism: 1998 (1999). Although expelling bin Laden
was a "positive step[ ]," the CIA concluded Sudan
continued to send "mixed signals about cutting its terrorist
ties" after his expulsion but before the embassy
bombings. Cent. Intel. Agency, Sudan: a Primer on
Bilateral Issues With the United States, at 4 (May 12,
1997). Notably, Sudan remains a designated state sponsor
of terrorism today.
The district court also found Sudan had provided
financial, governmental, military, and intelligence support
to al Qaeda. Owens N, 826 F.Supp.2d at 143-46. During
its time in Sudan, al Qaeda operated several business and
charities. All three experts **195*783 explained that
these enterprises provided legitimate employment for al
Qaeda operatives as well as cover for the group's illicit
activities throughout the region. The Sudanese
government actively promoted al Qaeda's businesses in
several ways. As described by al Fadl, Sudan partnered
with al Qaeda-affiliated businesses in major infrastructure
projects, allowing al Qaeda to gain access to and
experience with explosives. Sudan also granted al Qaeda
businesses "customs exemptions" and "tax privileges"
which, according to Vidino, enabled al Qaeda nearly to
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monopolize the export of several agricultural products.
Sudan offered al Qaeda the services of its banking system,
which helped the organization in "laundering money and
facilitating other financial transactions that stabilized and
ultimately enlarged Bin Laden's presence in the Sudan."
From the very beginning Sudan also aided al Qaeda's
movement throughout the region. Relying upon al Fadl's
testimony, Kohlmann testified that al Qaeda circulated
copies of President al Bashir' s letter of invitation among
its operatives. Al Qaeda agents could present these copies
to Sudanese officials in order to "avoid having to go
through normal immigration and customs controls" and to
head off any "problems with the local police or
authorities." According to Kohlmann, Sudanese
intelligence also transported weapons and equipment for
al Qaeda from Afghanistan to Sudan via the state-owned
Sudan Airways. On at least one occasion, Sudan allowed
al Qaeda operative Kherchtou to smuggle $10,000 in
currency-an amount above that permitted by law-to an
al Qaeda cell in Kenya. This Kenyan cell ultimately
carried out the bombing of the U.S. embassy in Nairobi in
1998.
In addition to aiding al Qaeda's movements directly, all
three experts testified that the government provided al
Qaeda members hundreds of passports and Sudanese
citizenship. Al Qaeda operatives needed these passports
because they were "de facto stateless individuals" who
could no longer safely travel on passports from their
countries of origin. Upon returning from abroad,
Sudanese officials allowed al Qaeda operatives to bypass
customs and immigration controls. As al Fadl testified,
this allowed militants to avoid having their passport
stamped by a nation that had come under increasing
scrutiny for its ties to terrorist organizations.
Finally, the district court identified several instances in
which Sudan provided security to al Qaeda leadership.
Owens IV, 826 F.Supp.2d at 145. In his prior testimony, al
Fadl recounted an occasion when Sudanese intelligence
intervened to prevent the arrest of al Qaeda operatives by
local police. Al Ridi also testified that Sudan assigned 15
to 20 uniformed soldiers to act as personal bodyguards for
bin Laden and other al Qaeda members. In 1994,
according to Kohlmann, Sudanese intelligence even foiled
an assassination attempt against bin Laden in Khartoum.
On another occasion, Sudanese intelligence thwarted a
plot against al Qaeda's second-in-command, Ayman
al-Zawahiri. Even as international pressure mounted on
Sudan to expel bin Laden, Simon-who covered terrorism
matters for the NSC during the events in
question---explained that the Sudanese government
refused to provide actionable intelligence on al Qaeda's
plans throughout the region or to hand bin Laden over to
the United States. Simon echoed the State Department's
conclusion that bin Laden's eventual expulsion was
nothing more than a "symbolic gesture designed to
placate the international community" that changed little in
the day-to-day reality of Sudan's support for terrorism.
See U.S. Dep't of State, Patterns of Global Terrorism:
1998.
**196*784 From this evidence, all three experts
concluded Sudan provided material support to al Qaeda.
Moreover, the experts viewed this support as
"indispensable" to the success of the 1998 embassy
bombings. Without "a country that not only tolerated, but
actually actively assisted ... al Qaeda terrorist activities,"
Vidino asserted, "al Qaeda could not have achieved its
attacks on the US Embassies." Noting that "the vast
majority of planning and preparation [ for the attacks] took
place between the years of 1991 and 1997," Kohlmann
opined "without the base that Sudan provided, without the
capabilities provided by the Sudanese intelligence service,
without the resources provided, none of this would have
happened." Simon likewise surmised "it's difficult to see
how ... the attacks could have been carried out with equal
success" without Sudan's "active support" and safe
haven.
From the expert testimony, trial transcripts, and
government reports, the district court concluded that the
plaintiffs had met their burden of demonstrating "to the
satisfaction of the court" that Sudan had provided material
support to al Qaeda and that such support was a legally
sufficient cause of the embassy bombings. Owens IV, 826
F.Supp.2d. at 150. As such, the plaintiffs both established
jurisdiction and prevailed on the merits of liability. When
faced with Sudan's Rule 60(b )( 4) motion to vacate the
default judgments as void, the district court reaffirmed
that its findings of material support and causation satisfied
the standard for jurisdiction under § 1605A(a). Owens V,
174 F.Supp.3d at 276.
On this appeal, Sudan contends the record contains
insufficient evidence of material support and causation to
give the court jurisdiction under the FSIA. Its attack
comes in two forms. First, Sudan disputes the
admissibility of much of the evidence introduced to
support the district court's factual findings. It does so
despite having failed to participate in the evidentiary
hearing, where such challenges would have been properly
raised. Second, even assuming the evidence was
admissible, Sudan contends the district court's factual
findings on material support and causation were clearly
erroneous and insufficient to sustain jurisdiction as a
matter of law. As we shall see, neither argument has
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merit.
B. Standard of Review
Sudan faces an uphill battle with its evidentiary
challenges for two reasons. First is the burden of proof
applicable to a FSIA case. The FSIA "begins with a
presumption of immunity" for a foreign sovereign. Bell
Helicopter Textron, Inc. v. Islamic Republic of Iran, 734
F.3d 1175, 1183 (D.C. Cir. 2013). The plaintiff bears an
initial burden of production to show an exception to
immunity, such as § 1605A, applies. Id. Then, "the
sovereign bears the ultimate burden of persuasion to show
the exception does not apply," id., by a preponderance of
the evidence. See Simon v. Republic of Hungary, 812 F.3d
127, 147 (D.C. Cir. 2016). Therefore, if a plaintiff
satisfies his burden of production and the defendant fails
to present any evidence in rebuttal, then jurisdiction
attaches.
Although a court gains jurisdiction over a claim against a
defaulting defendant when a plaintiff meets his burden of
production, the plaintiff must still prove his case on the
merits. This later step, however, does not affect the
court's jurisdiction over the case, and a defaulting
defendant normally forfeits its right to raise
nonjurisdictional objections. See Practical Concepts, 811
F.2d at 1547. Thus, the only question before this court is
whether the plaintiffs have met their rather modest burden
of production to establish the court's jurisdiction.
**197*785This brings us to Sudan's second obstacle on
appeal. When assessing whether a plaintiff has met his
burden of production, appellate review of the district
court's findings of fact and evidentiary rulings is narrowly
circumscribed. With respect to a defaulting sovereign, the
FSIA requires only that a plaintiff "establish[ ] his claim
or right to relief by evidence satisfactory to the court."28
U.S.C. § 1608(e). This standard mirrors a provision in
Federal Rule of Civil Procedure 55(d) governing default
judgments against the U.S. Government. Commercial
Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 242 (2d
Cir. 1994). While both § 1608(e) and Rule 55(d) give an
unresponsive sovereign some protection against an
unfounded default judgment, see Jerez, 775 F.3d at 423,
neither provision "relieves the sovereign from the duty to
defend cases," Rafidain Bank, 15 F.3d at 242. Moreover,
§ 1608(e) does not "require the court to demand more or
different evidence than it would ordinarily receive," cf
Marziliano v. Heckler, 728 F.2d 151, 158 (2d Cir. 1984)
(applying Rule 55(d)); indeed, "the quantum and quality
of evidence that might satisfy a court can be less than that
normally required." Alameda v. Sec'y of Health, Ed. &
Welfare, 622 F.2d 1044, 1048 (1st Cir. 1980) (applying
Rule 55(d)).
Unlike the court's conclusions of law, which we review
de novo, we review for abuse of discretion the district
court's satisfaction with the evidence presented. Hill v.
Republic of Iraq, 328 F.3d 680, 683 (D.C. Cir. 2003). A
district court abuses its discretion when it relies upon a
clearly erroneous finding of fact. Amador County v. U.S.
Dep't of the Interior, 772 F.3d 901,903 (D.C. Cir. 2014).
In a FSIA default proceeding, a factual finding is not
deemed clearly erroneous if "there is an adequate basis in
the record for inferring that the district court . . . was
satisfied with the evidence submitted." Rafidain Bank, 15
F.3d at 242 (quoting Marziliano, 728 F.2d at 158). That
inference is drawn when the plaintiff shows "her claim
has some factual basis," cf Giampaoli v. Califano, 628
F.2d 1190, 1194 (9th Cir. 1980) (applying Rule 55(d)),
even if she might not have prevailed in a contested
proceeding. Provided "the claimant's district court brief
and reference to the record appear[ ] relevant, fair and
reasonably comprehensive," we will not set aside a
default judgment for insufficient evidence. Alameda, 622
F.2d at 1049. This lenient standard is particularly
appropriate for a FSIA terrorism case, for which firsthand
evidence and eyewitness testimony is difficult or
impossible to obtain from an absent and likely hostile
sovereign.
The district court also has an unusual degree of discretion
over evidentiary rulings in a FSIA case against a
defaulting state sponsor of terrorism. For example, we
have allowed plaintiffs to prove their claims using
evidence that might not be admissible in a trial. See Han
Kim v. Democratic People's Republic of Korea, 774 F.3d
1044, 1048-51 (D.C. Cir. 2014) (noting "courts have the
authority-indeed, we think, the obligation-to adjust
evidentiary requirements to differing situations" and
admitting affidavits in a FSIA default proceeding)
(internal alterations and quotation marks removed). This
broad discretion extends to the admission of expert
testimony, which, even in the ordinary case, "does not
constitute an abuse of discretion merely because the
factual bases for an expert's opinion are weak." Joy v.
Bell Helicopter Textron, Inc., 999 F.2d 549, 567 (D.C.
Cir. 1993). Section 1608(e) does not require a court to
step into the shoes of the defaulting party and pursue
every possible evidentiary challenge; only where the court
relies upon evidence that is both clearly inadmissible and
essential **198*786 to the outcome has it abused its
discretion. This is part of the risk a sovereign runs when it
does not appear and alert the court to evidentiary
problems. Cf Bell Helicopter Textron, 734 F.3d at 1181.
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In this case, the district court has already undertaken to
weigh the plaintiffs' evidence and determine its
admissibility without any assistance from Sudan. Under
these circumstances, we accord even more deference to
the district court's factual findings and evidentiary rulings
in a FSIA case than in reviewing default judgments to
which the strictures of § 1608(e) (or Rule 55(d)) do not
apply.
Deference is especially appropriate when considering the
lengthy history of the proceedings in the district court.
The same learned judge has presided over this litigation
since 2001. Over that time, the court has gained
considerable familiarity with the plaintiffs' evidence and,
during the periods when Sudan participated, with its
objections to that evidence. The court has issued four
lengthy and detailed opinions that directly address many
of Sudan's challenges to the evidence of material support
and jurisdictional causation. Through its opinions and
actions, it is abundantly clear that the district court both
appreciated and carried out is obligation under § 1608(e).
Cf Compania lnteramericana Exp.-lmp., S.A. v.
Compania Dominicana de Aviacion, 88 F.3d 948, 951
(11th Cir. 1996) (vacating default judgment when "the
record does not reflect that the court considered the
differing standard required by § 1608(e)"). Only if we
found the record wholly lacking an "adequate basis" for
the district court's conclusions would we overturn its
jurisdictional findings.
C. Admissibility of the Evidence
Sudan first challenges the admissibility of evidence
supporting the district court's findings of material support
and jurisdictional causation. In order to issue a default
judgment under § 1608(e), a court must base its findings
of fact and conclusions of law upon evidence admissible
under the Federal Rules of Evidence. Kim, 774 F.3d at
1049. If inadmissible evidence alone substantiates an
essential element of jurisdiction, then the court abuses its
discretion in concluding the claimant has established his
case "by evidence satisfactory to the court." 28 U.S.C. §
1608(e).
Reviewing the admissibility of evidence supporting a
default judgment presents significant challenges, which
color our treatment of Sudan's arguments. The adversarial
process gives the parties an incentive to raise evidentiary
challenges at the earliest opportunity because failure to do
so ordinarily results in their forfeiture. Raising evidentiary
challenges early on also provides the proponent of the
evidence the opportunity to respond by offering an
alternative theory of admissibility or different, admissible
evidence on the same point. Thus, the adversarial process
properly places the burden of admissibility upon the
interested party, allocates the original determination of
admissibility to the district court, which is more familiar
with the evidence, and preserves evidentiary disputes for
appellate review with the aid of a full trial record.
Furthermore, allowing a defaulting defendant to benefit
from sandbagging the plaintiff with an admissibility
objection on appeal would be unfair and would encourage
gamesmanship. When the defendant defaults, therefore,
we do not consider its evidentiary challenges on appeal.
These principles do not map neatly to a FSIA case
because a defaulting defendant may challenge the factual
basis for the court's jurisdiction for the first time on
appeal. And because a FSIA plaintiff must produce
evidence that is both admissible, Kim, 774 F.3d at 1049,
and **199*787 "satisfactory to the court," 28 U.S.C. §
1608(e), in order to obtain a default judgment, we
presume a defendant may also challenge for the first time
on appeal the admissibility of evidence supporting a
jurisdictional fact. As previously noted, however, a
defendant sovereign that defers its challenge until
appealing a default judgment makes the district court's
decision less fully informed and deprives the reviewing
court of a fully developed record; it also handicaps the
non-defaulting plaintiff in filling out the evidentiary
record. For these reasons, we will not accept a belated
challenge to admissibility raised by a defaulting sovereign
unless the contested evidence is clearly inadmissible and
we seriously doubt the plaintiff could have provided
alternative evidence that would have been admissible.
Those circumstances are not present here.
In this case, Sudan principally challenges the
admissibility of two types of evidence: (1) the plaintiffs'
expert testimony and (2) reports from the Department of
State and the CIA. We find no error in the district court's
reliance upon either.
1. The expert testimony
In its opinions on liability and on Sudan's Rule 60(b)
motion, the district court discussed the experts' testimony
in great detail and concluded it sufficed to establish
jurisdiction. Owens V, 174 F.Supp.3d at 276. Because it
may be dispositive, we, too, start with the expert
testimony.
The testimony of expert witnesses is of crucial importance
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in terrorism cases, see, e.g., Kilburn, 376 F.3d at 1132
(jurisdiction satisfied based solely upon the declaration of
an expert witness); Boim v. Holy Land Found. for Relief
& Dev., 549 F.3d 685, 704 (7th Cir. 2008); United States
v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005), because
firsthand evidence of terrorist activities is difficult, if not
impossible, to obtain. Victims of terrorist attacks, if not
dead, are often incapacitated and unable to testify about
their experiences. Perpetrators of terrorism typically lie
beyond the reach of the courts and go to great lengths to
avoid detection. Eyewitnesses in a state that sponsors
terrorism are similarly difficult to locate and may be
unwilling to testify for fear of retaliation. The sovereigns
themselves often fail to appear and to participate in
discovery, as Sudan did here. With a dearth of firsthand
evidence, reliance upon secondary materials and the
opinions of experts is often critical in order to establish
the factual basis of a claim under the FSIA terrorism
exception.
Sudan raises three challenges to the expert testimony
presented at the evidentiary hearing. First, despite
conceding that expert testimony is "doubtless admissible"
in a FSIA default proceeding, Sudan contends that experts
alone are insufficient to establish jurisdiction in the
absence of other direct, admissible evidence. Second,
Sudan objects that the plaintiffs' experts merely served as
conduits for inadmissible hearsay, upon which the district
court relied. Finally, Sudan quarrels with the inferences
drawn by the experts and by the district court from the
underlying factual background. None of these arguments
is persuasive.
a. Need for direct evidence
The recent case of Han Kim v. Democratic People's
Republic of Korea demonstrates the importance of expert
testimony in FSIA proceedings and forecloses Sudan's
first argument. In Kim, relatives of a pastor who was a
U.S. citizen sued the Democratic People's Republic of
Korea (DPRK) under the FSIA terrorism exception,
alleging the regime abducted, tortured, and killed the
cleric for his ministry to DPRK refugees. 774 F.3d at
1046. Because the DPRK refused to participate in the
litigation and intimidated potential **200*788
eyewitnesses, the plaintiffs could offer no direct evidence
of their relative's torture and killing by the DPRK.
Instead, two experts submitted declarations stating that
North Korea invariably tortured and killed its political
prisoners. Id. The court in Kim found these declarations
"doubtless admissible" under Federal Rule of Evidence
702 and refused categorically to require eyewitness
testimony or direct evidence on both practical and policy
grounds:
In these circumstances, requiring that the Kims prove
exactly what happened to the Reverend and when
would defeat the Act's very purpose: to give American
citizens an important economic and financial weapon to
compensate the victims of terrorism, and in so doing to
punish foreign states who [sic] have committed or
sponsored such acts and deter them from doing so in
the future. This is especially true in cases of forced
disappearance, like this one, where direct evidence of
subsequent torture and execution will, by definition,
almost always be unavailable, even though indirect
evidence may be overwhelming. Were we to demand
more of plaintiffs like the Kims, few suits like this
could ever proceed, and state sponsors of terrorism
could effectively immunize themselves by killing their
victims, intimidating witnesses, and refusing to appear
in court.
Id. at 1048-49 (internal citations and quotation marks
omitted).
Here, as in Kim, the plaintiffs face a state sponsor of
terrorism that has refused to participate in the litigation.
By skipping discovery and the evidentiary hearing, Sudan
made it virtually impossible for the plaintiffs to get
eyewitness accounts of its activities in the 1990s. Nor can
the plaintiffs ordinarily subpoena members of al Qaeda,
many of whom are dead or in hiding, to testify regarding
the actions of the regime. The Congress originally enacted
the terrorism exception in the FSIA because state
sponsors of terrorism "ha[d] become better at hiding their
material support" and misdeeds. Kilburn, 376 F.3d at
1129 (internal quotation marks omitted). Just as requiring
firsthand evidence of the DPRK's covert atrocities in Kim
would "effectively immunize" the regime from
responsibility for its crimes, requiring that a victim of a
state-supported bombing offer direct evidence of material
support would shield state sponsors of terrorism from
liability for the very predicate act-material support-that
gives the court jurisdiction.
Nevertheless, Sudan persists that expert testimony alone
cannot establish jurisdiction and liability under the FSIA.
To wit, Sudan complains that the plaintiffs did not offer
"any admissible factual evidence" or "call any percipient
witnesses competent to testify about relevant facts in
Sudan in the 1990s." In particular, Sudan would have us
distinguish Kim as having turned solely upon a piece of
non-expert evidence.
Sudan's argument is both legally and factually flawed.
Neither § 1608(e) nor any other provision of the FSIA
requires a court to base its decision upon a particular type
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of admissible evidence. As long as the evidence itself is
admissible, as expert testimony certainly may be, and the
court finds it satisfactory, its form or type is irrelevant. Cf
Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127,
99 L.Ed. 150 (1954) (refusing to distinguish between
different types of evidence in a criminal prosecution).
Indeed, cases in this Circuit and in others have repeatedly
sustained jurisdiction or liability or both under the
terrorism exception to the FSIA and in other terrorism
cases based solely upon expert testimony. Kilburn, 376
F.3d at 1132; Boim, 549 F.3d at 705 ("[W]ith [the
plaintiff's expert report] in the record and nothing on the
other side the [district] court had no choice but to enter
summary **201 *789 judgment for the plaintiffs with
respect to Hamas's responsibility for the Boim killing").
Therefore the plaintiffs' "failure" to present eyewitness
testimony or other direct evidence is of no moment as to
whether they have satisfied their burden of production.
Sudan's attempt to distinguish Kim on its facts is similarly
unpersuasive. True, in Kim, we placed great weight upon
a single piece of admissible non-expert evidence: the
conviction of a DPRK agent who had kidnapped the
victim, of which the district court took judicial notice.
Kim, 774 F.3d at 1049. This conviction placed the victim
at the scene of the crime and allowed the court to
conclude he had been subjected to the torture and killing
that the DPRK "invariably" inflicts upon its prisoners. Id.
at 1051. Without this conviction, we noted, "[o]ur
conclusion would no doubt differ" because there was no
other evidence linking the DPRK to the victim's
disappearance. Id.
Our conclusion, however, turned upon the specific facts
of that case; we did not announce a categorical
requirement of direct evidence in FSIA cases. Whereas
the conviction in Kim linked the defendant sovereign to
the plaintiff's disappearance, in the present case there is
no missing link between Sudan's actions and the embassy
bombings. It is undisputed that al Qaeda came to Sudan in
the early 1990s and maintained its headquarters there. It is
also beyond question that al Qaeda perpetrated the
embassy bombings in 1998. As in Kim, expert testimony
supplies the predicate act (here material support, in Kim
torture and extrajudicial killing) linking these two events
and conferring jurisdiction upon the court. But here,
unlike in Kim, we need no further evidence beyond the
expert testimony to connect the defendant sovereign to the
extrajudicial killings. The expert testimony therefore
suffices to meet the plaintiffs' burden of production on
jurisdiction.
b. Reliance upon inadmissible hearsay
Sudan next contends the experts recited facts based upon
inadmissible hearsay and the district court improperly
relied upon those facts to establish jurisdiction and to hold
Sudan liable.
Under Federal Rule of Evidence 703, a properly qualified
expert may base his opinion upon otherwise inadmissible
sources of information as long as those sources are
reasonably relied upon in his field of expertise. Further,
the expert may disclose to the factfinder otherwise
inadmissible "underlying facts or data as a preliminary to
the giving of an expert opinion." See, e.g., Fed. R. Evid.
705 advisory committee's note. Indeed, disclosure is often
necessary to enable the court to "decid[e] whether, and to
what extent, the person should be allowed to testify." Id.;
2 McCormick on Evidence § 324.3 (7th ed. 2016)
("otherwise the opinion is left unsupported with little way
for evaluation of its correctness"). Nevertheless, "the
underlying information" relied upon by a qualified expert
"is not admissible simply because the [expert's] opinion
or inference is admitted." SeeFed. R. Evid. 703 advisory
committee's note. Thus, as Sudan points out, "a party
cannot call an expert simply as a conduit for introducing
hearsay under the guise that the testifying expert used the
hearsay as the basis of his testimony." Marvel Characters,
Inc. v. Kirby, 726 F.3d 119, 136 (2d Cir. 2013) (internal
quotation marks omitted).
Applying these standards to the case at hand, we see that
the district court properly distinguished the experts'
clearly admissible op1mons from the potentially
inadmissible facts underlying their testimony. Sudan
principally objects to the district court's recitation of
those underlying *790**202 facts in its 2011 opinion on
liability, which facts it claims are inadmissible even if the
experts' opinions were properly admitted. The district
court acknowledged this complication in its 2016 opinion
on Sudan's motion to vacate: "Sudan may have plausible
arguments" that not "every factual proposition in the
Court's 2011 opinion can be substantiated by record
evidence admissible under the Federal Rules of
Evidence." Owens V, 174 F.Supp.3d at 275. But even if
"particular statements in that opinion may not be
adequately supported," the experts' op1mons
"nonetheless" provided "sufficient evidence in the record
of the necessary jurisdictional facts." Id. We agree with
this conclusion.
At the outset, we note the district court did not err-much
less prejudicially err-in reciting potentially inadmissible
facts in its 2011 opinion on liability. For their conclusions
to be admissible and credible, the plaintiffs' experts
needed to disclose the factual basis for their opinions. See,
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431 U.S.App.D.C. 163
e.g., Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349,
1356 (5th Cir. 1983) ("An expert is permitted to disclose
hearsay for the limited purpose of explaining the basis for
his expert opinion"). Without that disclosure, the district
court would have been at a loss to determine whether the
opinions were admissible as reliable expert testimony.
SeeFed. R. Evid. 702 (requiring court to determine
whether expert's knowledge "is based on sufficient facts
or data," and is "the product of reliable principles and
methods" that have been "reliably applied ... to the facts
of the case"). Therefore, the court did not err in allowing
the plaintiffs' experts to recount potentially inadmissible
facts in order to establish the basis for their admissible
opinions.
The district court also needed to engage with the
underlying facts in order to explain why it admitted and
credited the experts' opinions. Without those facts, we too
would struggle to evaluate Sudan's evidentiary challenges
to the opinion testimony. Hence, some discussion of the
potentially inadmissible underlying facts was unavoidable
in the 2011 opinion in order to admit, to credit, and to
enable our review of the experts' opinions.
More important, the district court properly based its
findings upon the experts' "undoubtedly admissible"
opinions and not upon any arguably inadmissible facts.
The district court's 2011 and 2016 opinions extensively
quote the experts' opinions in reaching the conclusion that
Sudan's material support caused the embassy bombings.
See Owens V, 174 F.Supp.3d at 277-79 (quoting the
opinions of Kohlmann, Simon, and Vidino); Owens IV,
826 F.Supp.2d at 146 (quoting Simon and Kohlmann to
conclude "Sudanese government support was critical to
the success of the 1998 embassy bombings"). We
therefore see no error in the court's conclusion that the
expert testimony satisfied the plaintiffs' burden of
production on jurisdictional causation.
In a supplemental filing, Sudan compares the experts'
opinions in this case to those held inadmissible in
Gilmore v. Palestinian Interim Self-Government
Authority, 843 F.3d 958 (D.C. Cir. 2016), but the gulf
between the two cases is wide. In Gilmore, the plaintiffs
expert neither stated nor applied "a reliable methodology"
from which he had derived his opinions. Id. at 972-73.
Instead, "his analysis consist[ed] entirely of deductions
and observations that flow directly from the content of the
hearsay statements and would be self-evident to a
layperson." Gilmore v. Palestinian Interim Self-Gov't
Auth., 53 F.Supp.3d 191, 213 (D.D.C. 2014). Indeed, the
Gilmore expert's opinion derived solely from materials
that had been proffered at trial but excluded as
inadmissible hearsay. Id. at 212-13. In this case, the
plaintiffs' **203*791 experts relied upon their own
extensive research into terrorist organizations to conclude
that Sudan provided material support that caused the
embassy bombings. In doing so, the experts-unlike the
expert in Gilmore-drew upon both materials admitted at
the evidentiary hearing and sources encountered in their
research and professional experience. A "layperson"
could not reliably have reached the same conclusions as
the experts in this case.
Finally, Sudan belatedly challenges the reliability of the
factual bases for the experts' testimony. Of course, "the
decision whether to qualify an expert witness is within the
broad latitude of the trial court and is reviewed for abuse
of discretion." Haarhuis v. Kunnan Enters., 177 F.3d
1007, 1015 (D.C. Cir. 1999) (citing Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143
L.Ed.2d 238 (1999)). As previously stated, experts may
rely upon hearsay evidence in forming their admissible,
professional opinions. Indeed, it is hard to imagine what
other than hearsay an expert on terrorism could use to
formulate his opinion. See Baim, 549 F.3d at 704
("Biologists do not study animal behavior by placing
animals under oath, and students of terrorism do not
arrive at their assessments solely or even primarily by
studying the records of judicial proceedings"). All the
Federal Rules require is that the "facts or data in the
particular case upon which an expert bases an opinion or
inference ... [are] of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences upon the subject." Fed. R. Evid. 703 (2010)
(amended without substantive change 2011).
Here, the plaintiffs' experts used, among other things,
trial testimony of al Qaeda informants, intelligence
reports from the U.S. Government, and their exhaustive
review of secondary sources to reach their conclusions.
Courts have consistently held these sorts of materials
provide an adequate basis for expert testimony on
terrorism. See Damrah, 412 F.3d at 625 & n.4 (approving
an expert's reliance upon books, press releases,
newspaper articles, and the State Department's Patterns
of Global Terrorism reports); Baim, 549 F.3d at 704-05
(approving reliance upon terrorist websites and
observations from prior criminal trials). In light of the
general acceptance of the plaintiffs' experts' sources and
methodologies, we conclude the district court did not
abuse its discretion in qualifying the experts, summarizing
their testimony, or crediting their conclusions.
c. Reliability of the experts' conclusions
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Sudan's third objection attacks the reliability of the
experts' opinions in this case as inconsistent with the
underlying facts. In other words, Sudan asks this court to
hold the expert opinions are inadmissible because the
plaintiffs' witnesses have not "reliably applied [their]
principles and methods to the facts of the case." SeeFed.
R. Evid. 702(d). This challenge also implies the district
court based its findings of jurisdiction upon clearly
erroneous facts. See Price, 389 F.3d at 197 (reviewing for
clear error jurisdictional findings of fact in a FSIA
terrorism case); see also Duke Power Co. v. Carolina
Envtl. Study Grp., 438 U.S. 59, 74-77, 98 S.Ct. 2620, 57
L.Ed.2d 595 (1978).
The problem with this argument is that Sudan has not
explained-either at the evidentiary hearing or on
appeal-why these expert opinions are unreliable or
clearly erroneous. By refusing to participate in the
evidentiary hearing, Sudan gave up its opportunity to
challenge the fit between the experts' opinions and the
underlying facts. At the hearing, the witnesses described
the general bases of their **204*792 expertise, and the
district court found them qualified to give opinions on
Sudan's material support for al Qaeda. In doing so, the
experts said they had relied upon multiple sources of
information, including but not limited to those presented
at the hearing. But the experts did not-and did not need
to-provide the specific basis for their knowledge for
each factual proposition they advanced. SeeFed. R. Evid.
705 ("an expert may state an opinion-and give the
reasons for it-without first testifying to the underlying
facts or data"). Therefore, we cannot know with certainty
whether the experts' opinions were consistent or in
conflict with the underlying facts upon which they relied.
Had Sudan participated in the hearing, it could have
challenged the experts to substantiate each and every
factual proposition they asserted. Cf Bryan v. John Bean
Div. of FMC Corp., 566 F.2d 541, 545 (5th Cir. 1978)
(noting "the onus of eliciting the bases of the opinion is
placed on the" party opposing admission). That would
have allowed this court to determine whether the experts'
opinions reliably reflected the more developed factual
record. By deferring its attack until this appeal, Sudan has
deprived the experts of an opportunity to respond, and
instead asks this court to rule on an incomplete record.
We decline the invitation. See Boim, 549 F.3d at 704-05
(rejecting a challenge to the reliability of an expert's
inferences first brought on appeal).
2. The State Department reports
Of course, the district court did not rely solely upon
expert testimony to establish jurisdiction and liability. Of
particular importance, the plaintiffs marshaled nearly a
decade of State Department reports that speak directly to
Sudan's support for terrorist groups, including al Qaeda.
See, e.g., U.S. Dep't of State, Patterns of Global
Terrorism: 1993 ("Despite several warnings to cease
supporting radical extremists the Sudanese government
continued to harbor international terrorist groups in
Sudan"); U.S. Dep't of State, Patterns of Global
Terrorism: 1998 ("Sudan provides safe haven to some of
the world's most violent terrorist groups, including
Usama Bin Ladin's al-Qaida"); U.S. Dep't of State,
Patterns of Global Terrorism: 2000 (2001) ("Sudan ...
continued to be used as a safe haven by members of
various groups, including associates of Osama bin
Laden's al-Qaeda organization"). These reports both
bolster the experts' conclusions about Sudan's material
support for the al Qaeda embassy bombings and
independently show the plaintiffs' claims "ha[ve] some
factual basis," as required by § 1608(e). Giampaoli, 628
F.2d at 1194.
As with the expert testimony, Sudan contends these
reports are inadmissible hearsay. The plaintiffs urge the
State Department reports were admissible under the
hearsay exception for public records. SeeFed. R. Evid.
803(8). That exception allows the admission of "a record
or statement of a public office if' it: (1) contains factual
findings (2) from a legally authorized investigation. Id at
803(8)(iii). Pursuant to the "broad approach to
admissibility" under Rule 803(8), a court may also admit
"conclusion[s] or opinion[s]" contained within a public
record. Beech Aircraft Corp. v. Rainey, 488 U.S. 153,
170, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). Once
proffered, a public record is presumptively admissible,
and the opponent bears the burden of showing it is
unreliable. Bridgeway Corp. v. Citibank, 201 F.3d 134,
143 (2d Cir. 2000).
The State Department's Patterns of Global Terrorism
reports fit squarely within the public records exception.
First, the reports contain both factual findings and
conclusions on Sudan's support for terrorism in general
and al Qaeda in particular. Second, the reports were
created **205*793 pursuant to statute, see22 U.S.C. §
2656f(a) (requiring annual reports on terrorism), and are
therefore the product of a "legally authorized
investigation." See Bridgeway, 201 F.3d at 143 (holding
State Department reports required by statute are public
records). Indeed, in contested FSIA proceedings we have
previously approved admission of the very reports Sudan
challenges, Simpson, 470 F.3d at 361 ; Kilburn, 277
F.Supp.2d at 33, aff'd376 F.3d at 1131, as have other
courts, Damrah, 412 F.3d at 625 n.4.
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Sudan objects on appeal to the "trustworthiness" of these
reports, but that objection should have been made in the
district court. SeeFed. R. Evid. 803(8)(B) (providing for
the admission of public records if "the opponent does not
show that the possible source of the information or other
circumstances indicate a lack of trustworthiness"). Even
now, Sudan does not present any reason, beyond their
reliance upon hearsay, to deem these reports unreliable.
See Kehm v. Procter & Gamble Mfg. Co., 724 F.2d 613,
618 (8th Cir. 1983) (holding inclusion of hearsay is not a
sufficient ground for excluding a public record as
unreliable).4 Although the reports lack the details that the
expert witnesses provided concerning Sudan's material
support, they are competent, admissible evidence, which
together with the plaintiffs' admissible opinion evidence
satisfy the burden of production on material support and
jurisdictional causation. Because Sudan, by defaulting in
the district court, has not carried its burden of persuasion,
the district court properly asserted jurisdiction over the
cases.'
D. Sufficiency of the Evidence
This brings us to Sudan's second major challenge to the
plaintiffs' evidence. In addition to disputing the
admissibility of the evidence, Sudan argues the totality of
the evidence cannot establish material support and
jurisdictional causation as a matter of law. First, Sudan
contends the plaintiffs cannot show its actions caused the
plaintiffs' mJur1es because its conduct neither
substantially nor foreseeably provided material
*794**206 support for the embassy bombings. Second,
Sudan argues the plaintiffs cannot recover because its
support, if any, was not intended to cause the bombings.
1. Proximate causation
Sudan's first challenge to the sufficiency of the evidence
rests upon the standard for jurisdictional causation, viz.,
proximate cause. In Kilburn, we held a plaintiff must
show proximate cause to establish jurisdiction under §
1605(a)(7), the predecessor of the current FSIA terrorism
exception. 376 F.3d at 1128. Because § 1605A(a) restates
the predicate acts of § 1605(a)(7), it stands to reason that
proximate cause remains the jurisdictional standard.
Proximate cause requires "some reasonable connection
between the act or omission of the defendant and the
damage which the plaintiff has suffered." Id. (quoting
Prosser & Keeton on the Law of Torts 263 (5th ed.
1984)). It "normally eliminates the bizarre," Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513
U.S. 527, 536, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995),
"preclud[ing] liability in situations where the causal link
between conduct and result is so attenuated that the
consequence is more aptly described as mere fortuity."
Paroline v. United States, - U.S.--, 134 S.Ct. 1710,
1719, 188 L.Ed.2d 714 (2014). As Sudan points out, the
inquiry into proximate cause contains two similar but
distinct elements. First, the defendant's actions must be a
"substantial factor" in the sequence of events that led to
the plaintiff's injury. Rothstein v. UBS, 708 F.3d 82, 91
(2d Cir. 2013). Second, the plaintiff's injury must have
been "reasonably foreseeable or anticipated as a natural
consequence" of the defendant's conduct. Id. Sudan
contends that its support satisfies neither element of the
inquiry into proximate cause with respect to the 1998
embassy bombings here at issue.
a. Substantial factor
Sudan offers two reasons its actions were not a
"substantial factor" in al Qaeda's embassy bombings.
Most basically, Sudan contends it did not provide any
material support at all to al Qaeda during the 1990s,
making proximate causation impossible. Much of this
argument reprises Sudan's objections to the inferences
drawn by the experts from al Fadl's testimony, which
objections we have considered and rejected.
Nevertheless, Sudan points to a number of events as to
which it contends the district court erroneously found
material support for al Qaeda. For example, Sudan
criticizes the district court's discussion of al Qaeda
purchasing properties, starting businesses, and
establishing terrorist training camps in Sudan. Owens IV,
826 F.Supp.2d at 141, 143-44. Viewed in isolation, none
of these events necessarily evinces a Sudanese hand in al
Qaeda's activities. That view, however, like Nelson at the
Battle of Copenhagen, turns a blind eye to the broader
picture. The record shows that after al Qaeda started its
businesses, Sudan fostered their growth through tax
exceptions and customs privileges. This allowed al Qaeda
nearly to monopolize the export of several agricultural
commodities, plowing its profits back into its broader
organization. Again, after al Qaeda opened its training
camps, Sudanese intelligence shielded their operations
from the local police despite complaints from nearby
residents. This preferential treatment certainly qualifies as
material support, even if Sudan played no role in creating
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the underlying businesses and training camps.
Sudan also disputes the district court's finding that it
provided financial support to al Qaeda. To the contrary,
Sudan argues, al Qaeda financially supported Sudan by
investing in Sudanese infrastructure. Sudan *795**207 is
correct-bin Laden did provide financial assistance to
Sudan-but it ignores record evidence of Sudan's
reciprocal aid. For example, as the district court noted, bin
Laden's $50 million investment in the partially
state-owned al Sharmal Islamic Bank gave al Qaeda
"access to the formal banking system," which proved
useful for "laundering money" and "financing terrorist
operations." Id. at 144. Al Qaeda operatives, including bin
Laden himself, held accounts in their real names in al
Sharmal bank, demonstrating the impunity with which the
group operated in Sudan. Thus, although Sudan did not
directly fund al Qaeda or its business, the court
reasonably concluded its in-kind assistance had the same
practical effect.
Finally, Sudan invokes the testimony of Simon, the
former NSC staffer overseeing counterterrorism activities,
that Sudan provided no "useful information on bin
Laden's" activities that "might have helped the U.S.
unravel the plots to attack the two East African U.S.
embassies." Id. at 145. The district court's finding of
material support, Sudan argues, is unsustainable "without
a showing that Sudan had useful intelligence and
nonetheless elected not to share it." Although the district
court did not say what Sudan knew about al Qaeda or
when it knew it, Sudan's claims of ignorance regarding al
Qaeda's aims defies both reason and the record. After all,
Sudan invited "literally every single jihadist style group,"
including al Qaeda, to relocate to Sudan in the early
1990s. At the time, bin Laden was known as a wealthy
Islamist financier and a leader in the Afghani
mujahedeen. As soon as al Qaeda took up residence in
Sudan, bin Laden began issuing fa twas denouncing the
United States and calling for attacks upon U.S. interests.
And after the Battle of Mogadishu in 1993, al Qaeda
operatives publically boasted about killing U.S. soldiers
in Somalia. According to Kohlmann, bin Laden himself
took to the Arab press and U.S. cable television to claim
responsibility for this attack. Sudanese intelligence
officers would have been privy to all this information
because they frequented al Qaeda's guesthouses, and al
Turabi's NIF shared offices with al Qaeda for a time.
Sudan's own actions also gave it knowledge of al Qaeda's
capabilities and aims. For example, Sudanese intelligence
must have known that al Qaeda operated training camps
where explosives were used because it shielded those
camps from interference by the local police. Sudan also
knew al Qaeda was transporting large, undeclared sums of
money to Kenya because Sudanese agents shepherded
operatives with this money past airport inspections.
Likewise, Sudan knew something of al Qaeda's arsenal
because its own planes transported al Qaeda's weapons
from Afghanistan to Sudan. Indeed, on one occasion, a
Sudanese official even assisted al Qaeda in an ultimately
unsuccessful bid to obtain nuclear weapons from a
smuggler in South Africa. Contrary to Sudan's
contention, all this information would have aided the
United States in appreciating the threat of al Qaeda and
attempting to disrupt its operations. Sudan's refusal to
divulge any of this information---even after a specific
request from the United States in 1996---certainly
qualifies as material support. Cf Estate of Parsons v.
Palestinian Auth., 651 F.3d 118, 125-26 (D.C. Cir. 2011)
(security officers who, with knowledge, failed to
intervene in ongoing bomb plot provided material
support).
Sudan's second argument that its actions were not a
"substantial factor" causing the plaintiffs' injuries focuses
upon the temporal distance between Sudan's support for
al Qaeda and the embassy bombings. Principally, Sudan
argues that by expelling bin Laden in 1996 it broke the
chain of causation leading to the 1998 embassy bombings.
We confronted and rejected the **208*796 same
objection in our 2008 opinion affirming the district
court's denial of Sudan's motion to dismiss. Owens Ill,
531 F.3d at 895. Although we there recognized the
"[p]laintiffs' allegations are somewhat imprecise as to the
temporal proximity of Sudan's actions to and their causal
connection with the terrorist act," we held "this
imprecision [was] not fatal for purposes of jurisdictional
causation." Id. (quoting Rux v. Republic of Sudan, 461
F.3d 461, 474 (4th Cir. 2006)) (internal quotation marks
omitted). In order to bridge the gap, we noted the
plaintiffs' "allegations, and the reasonable inferences
drawn therefrom" need only "demonstrate a reasonable
connection between the foreign state's actions and the
terrorist act." Id. In other words, provided the plaintiffs
demonstrated proximate cause, the temporal remoteness
between Sudan's material support and the embassy
bombings was irrelevant. See Grubart, 513 U.S. at 536,
115 S.Ct. 1043 (proximate cause "normally eliminates the
bizarre" without "the need for further temporal or spatial
limitations"). And at that stage in the litigation, we
concluded, the plaintiffs had more than met their burden
of pleading facts sufficient to establish proximate
causation. Owens Ill, 531 F.3d at 895.
Fast-forwarding to the present day, the plaintiffs have
substantiated their allegations of material support and
jurisdictional causation with admissible evidence, which
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Sudan did not challenge at the evidentiary hearing. Once
again, the district court found the evidence established a
"reasonable connection" between Sudan's actions and the
embassy bombings. As in our 2008 decision, we see
nothing erroneous with this conclusion for two reasons.
First, we do not believe Sudan broke the chain of
proximate causation by completely disassociating itself
from al Qaeda in or after 1996. A declassified CIA
President's Daily Brief in December 1998-months after
the embassy bombings-reports a "Bin Laden associate in
Sudan" sending materials to al Qaeda in Afghanistan. The
State Department's 1998 Patterns of Global Terrorism
further reports that "Sudan continued to serve as a
meeting place, safehaven, and training hub for a number
of international terrorist groups, particularly Usama Bin
Ladin's al-Qaida organization" even after the embassy
bombings. Although counterterrorism cooperation
between the United States and Sudan improved after the
bombings, the 2000 Patterns of Global Terrorism report
reiterates "Sudan continued to serve as a safehaven for
members of al-Qaida, the Lebanese Hizballah, al-Gama'a
al-Islamiyya, Egyptian Islamic Jihad, the PIJ, and
HAMAS." In addition, both Kohlmann and Simon
testified that al Qaeda operatives remained in Sudan after
1996. Sudan insists that a gap remained between its
expulsion of bin Laden and the government reports
detailing al Qaeda's presence in Sudan in late 1998, but it
strains credulity that Sudan would immediately resume
relations with al Qaeda following bombings for which the
group claimed credit after completely cutting ties two
years earlier. Rather, as the district court inferred, it is far
more likely that Sudan, despite having expelled bin Laden
in 1996, continued to harbor al Qaeda terrorists until and
after the bombings.
Second, even if Sudan were correct on this factual point,
severing ties with al Qaeda would not preclude a finding
that its material support remained a substantial factor in
the embassy bombings. See Boim, 549 F.3d at 699-700
(holding a "two year[ ]" interval between the defendant's
material support and the plaintiffs injury was far from the
point at which "considerations of temporal remoteness
might ... cut off liability").
Sudan counters by selectively quoting the 9/11
Commission Report, stating "Bin **209*797 Ladin left
Sudan ... significantly weakened." Perhaps so if viewed in
isolation, but bin Laden's expulsion did not undo the
support Sudan provided in the previous years. Sudan's
invitation, after all, allowed al Qaeda to extricate itself
from a war-tom Afghanistan and organize its terrorist
enterprise in a stable safe haven. During al Qaeda's stay,
Sudan sheltered the group from foreign intelligence and
facilitated its movement throughout the region. It also put
al Qaeda in contact with other, more experienced terrorist
groups residing in Sudan. These actions allowed al Qaeda
to grow its membership, to develop its capabilities, and to
establish the cells in Kenya and Tanzania, which
ultimately launched the 1998 bombings. Indeed, "the vast
majority of the planning and preparation [for the embassy
attacks] took place between the years of 1991 and 1997"
when Bin Laden, for the most part, remained in the
Sudan. According to one expert, Sudan's expulsion of bin
Laden may have even "accelerated the bomb plot" by
allowing al Qaeda to militarize its African cells without
fear of reprisal against him by the United States, which
had known of his presence in Sudan. Id. at 310-11. As
Sudan notes, al Qaeda had not committed "any terrorist
attacks predating" its arrival in the country, and indeed
"the idea that al-Qaeda was capable of anything
significant" in the early 1990s "was laughable." Yet in a
few short years, al Qaeda progressed from mounting
small-scale, often-unsuccessful attacks to orchestrating
the near-simultaneous bombings of American embassies
in two different countries. Although the expulsion of bin
Laden may have marked a temporary setback for Al
Qaeda, on balance, the organization benefited greatly
from Sudan's aid during the 1990s. Therefore, the district
court's conclusion that Sudan's support was a "substantial
factor" in the chain of causation leading to the embassy
bombings was far from clearly erroneous.
b. Reasonable foreseeability
Sudan contends even if its support was a "significant
factor" in the embassy bombings, the attacks were not
"reasonably foreseeable or anticipated as a natural
consequence" of that support. Principally, Sudan argues it
was not foreseeable in 1991-when Sudan invited bin
Laden to relocate-that al Qaeda would engage in
terrorist activities. As evidence, Sudan points out that bin
Laden was not yet infamous for acts of terrorism and the
United States had not yet designated al Qaeda a terrorist
organization or bin Laden a terrorist and did not do so
until after the embassy bombings. Designation of Foreign
Terrorist Organizations, 64 Fed. Reg. 55,112, 55,112/1
(Oct. 8, 1999); Exec. Order No. 13099, 63 Fed. Reg.
45,167, 45,167 (Aug. 20, 1998). That bin Laden and al
Qaeda "may have abused their opportunities" in the
country, Sudan urges, does not mean it should be held
accountable when "its residents later tum out to be
terrorists."
Once again Sudan ignores the broader context of its
actions. In the early 1990s the Sudanese government
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reached out to numerous terrorist groups, including the
"Palestinian HAMAS movement, the Palestinian Islamic
Jihad, Hezbollah, ... al Qaeda, the Egyptian Islamic Jihad,
the Libyan Islamic Fighting Group, dissident groups from
Algeria, Morocco, the Eritrean Islamic Jihad movement."
Owens N , 826 F.Supp.2d at 141 (quoting Kohlmann).
"[L]iterally every single jihadist style group, regardless of
what sectarian perspective they had, was invited to take a
base in Khartoum" during this period. Id. That al Qaeda
was included in this list of renowned terrorist
organizations supports an inference that its terrorist aims
were foreseeable-indeed, foreseen-at the time of
Sudan's invitation.
**210*798 Sudan's own briefs implicitly concede the
foreseeability of al Qaeda's aims in the early 1990s. To
wit, Sudan reiterates the district court's finding that "Bin
Laden 'was a famous mujahedeen fighter who had
successfully fought the Soviet Union' and 'was thought to
be fabulously wealthy.' " SeeOwens IV, 826 F.Supp.2d at
140-41. Yet it argues "the idea that al-Qaeda was capable
of anything significant was laughable." True, al Qaeda
was then a fledgling terrorist organization, but one led by
a "famous ... fighter" and a "fabulously wealthy"
fundamentalist jihadi who had "successfully fought" a
world superpower. Any impartial observer could see the
group's future potential for mayhem far outstripped its
then already substantial capabilities. Sudan cannot bury
its head in the sand and contend otherwise.
Furthermore, as its relationship with al Qaeda deepened,
Sudan undoubtedly became aware of al Qaeda's hostility
to the United States and its intention to launch attacks
against American interests. Starting in 1991, bin Laden
issued a series of fatwas against the United States from
Khartoum, and al Qaeda operatives publically boasted
about attacking American soldiers in Somalia in 1993.
Despite this, Sudan continued to assist the group in
moving people and resources throughout the region.
Sudan's claimed ignorance of al Qaeda's specific aim to
bomb American embassies focuses too narrowly upon
those events; Sudan could not help but foresee that al
Qaeda would attack American interests wherever it could
find them.
In sum, Sudan's actions in the 1990s were undoubtedly a
"substantial factor in the sequence of responsible
causation" that led to the embassy bombings. Rothstein,
708 F.3d at 91. Moreover, the bombings were a
"reasonably foreseeable or anticipated as a natural
consequence" of its material support. Id. Therefore, the
district court correctly held that the plaintiffs had
demonstrated proximate cause, establishing jurisdiction
under the FSIA.
2. Sudan's specific intent
Sudan resists this conclusion by attempting to graft an
additional requirement onto the proximate cause analysis.
The FSIA terrorism exception, Sudan argues, requires
something more than proximate causation: "The
foreseeability aspect of proximate causation" it says, "is
reinforced by § 1605A(a)(l)'s requirement that material
~upport be provided 'for' the predicate act." Sudan's point
1s that the use of "for" with reference to "the provision of
material support" indicates that the FSIA "requires a
showing of intent" on the part of the foreign sovereign to
achieve the predicate act, for which it refers us to Village
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 502, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)
(prohibition on selling merchandise "marketed for use"
with illegal drugs requires a showing of intent on the
defendant's behalf). But see Posters 'N' Things, Ltd. v.
United States, 511 U.S. 513, 519, 114 S.Ct. 1747, 128
L.Ed.2d 539 (1994) (prohibition in the same statute on
selling a product "intended or designed for use" with
illegal drugs looks only to the objective features of the
product, not to a defendant's intent). Under this reading,
Sudan's material support could not give rise to
jurisdiction unless Sudan specifically intended its support
to cause the embassy bombings.
Although the record contains much evidence of Sudan's
support for al Qaeda and its general awareness of the
group's terrorist aims, nothing suggests that Sudan
specifically knew of or intended its support to cause the
embassy bombings. Nothing in the FSIA, however,
requires a greater showing of intent than proximate cause.
Indeed, we dispatched a similar argument **211 *799 in
Kilburn, along with a hypothetical raised by the sovereign
defendant:
A terrorist organization is supported by two foreign
states. One specifically instructs the organization to
carry out an attack against a U.S. citizen. Can the state
which only provides general support, but was not
involved with the act giving rise to the suit, also be
stripped of its immunity?
376 F.3d at 1128. Yes, we said. Because material support
"is difficult to trace," requiring more than proximate
cause "could absolve" a state from liability when its
actions significantly and foreseeably contributed to the
predicate act. Id.
Further, we rejected the related argument that the
"provision of material support or resources ... for such an
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acf' required that "a state's material support must go
directly for the specific act." Id. at 1130. That limitation,
we explained, "would likely render § 1605(a)(7)'s
material support provision ineffectual" because material
support "is fungible" and "terrorist organizations can
hardly be counted on to keep careful bookkeeping
records." Id. Indeed, in other situations, courts have
required neither specific intent nor direct traceability to
establish the liability of material supporters of terrorism.
See Baim, 549 F.3d at 698 (approving liability for donors
to terrorist organizations whose donations were made for
non-terrorism purposes). As Judge Posner has aptly said,
"[t]o require proof that [a defendant] intended that his
contribution be used for terrorism ... would as a practical
matter eliminate ... liability except in cases in which the
[defendant] was foolish enough to admit his true intent."
Id. at 698-99. The same holds true for a state sponsor of
terrorism under the FSIA; it may not avoid liability for
supporting known terrorist groups by professing
ignorance of their specific plans for attacks. In sum, that
the evidence failed to show Sudan either specifically
intended or directly advanced the 1998 embassy
bombings is irrelevant to proximate cause and
jurisdictional causation.
*****
In short, the plaintiffs have offered sufficient admissible
evidence that establishes that Sudan's material support of
al Qaeda proximately caused the 1998 embassy
bombings. The district court, therefore, correctly held the
plaintiffs met their burden of production under the FSIA
terrorism exception. Because Sudan failed to participate
in the litigation, it did not rebut that its material support
caused these extrajudicial killings. Therefore, this court
has jurisdiction to hear claims against Sudan arising from
the 1998 embassy bombings.
IV. Timeliness of Certain Claims
The remainder of Sudan's jurisdictional arguments apply
only to certain groups of plaintiffs. Even if we rule for
Sudan on all these matters, many of the judgments-and
the district court's 2011 holding on liability-will
therefore remain intact.
One such argument is that the claims of certain plaintiffs
are barred by the statute of limitation in the FSIA, which
Sudan views as a jurisdictional limit on the court's power
to hear a case. Like its predecessor, the current version of
the FSIA terrorism exception contains a limitation period
on personal injury claims against a state sponsor of
terrorism. Application of the limitation period requires
analysis of three components of the 2008 NDAA.
The first is the limitation period itself. Codified at §
1605A(b), the FSIA provides that:
An action may be brought or maintained under this
section if the action is commenced, or a related action
was commenced under section 1605(a)(7) ... or
**212*800 [the Flatow Amendment] not later than the
latter of (1) 10 years after April 24, 1996; or (2) 10
years after the date on which the cause of action arose.
The second component is § 1083(c)(3) of the 2008
NDAA, which defines the contours of a "related action"
and imposes an additional time limitation on the filing of
related actions:
(3) RELATED ACTIONS.-If an action arising out of
an act or incident has been timely commenced under
section 1605(a)(7) ... or [the Flatow Amendment], any
other action arising out of the same act or incident may
be brought under section 1605A ... if the action is
commenced not later than the latter of 60 days
after-(A) the date of the entry of judgment in the
original action; or (B) the date of the enactment of this
Act.
Finally, in addition to filing a new action or a "related
action," the NDAA offers a second way to avoid the
limitation period if the plaintiff had previously brought a
claim under § 1605(a)(7). Section 1083(c)(2) of the
NDAA provides, in part:
(2) PRIOR ACTIONS.-(A) IN GENERAL-With
respect to any action that-(i) was brought under
section 1605(a)(7) of title 28, United States Code, or
[the Flatow Amendment] before the date of enactment
of this act ... and ... is before the courts in any form ...
that action, and any judgment in the action shall, on
motion made by plaintiffs ... be given effect as if the
action had originally been filed under section
1605A(c).
For these "prior actions" the NDAA removes the
"defenses of res judicada, collateral estoppel, and [the]
limitations period" if the plaintiff moved to convert his
prior action or refiled a new action under § 1605A(c).
NDAA § 1083(c)(2)(B). A new claim using § 1083(c)(2)
is timely if it complies with the limitation period in §
1605A(b) or was filed within 60 days of enactment of the
NDAA. Id. § 1083(c)(2)(C).
Each provision comes into play in Sudan's challenge to
the timeliness of the plaintiffs' actions. In this case, the
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431 U.S.App.D.C. 163
plaintiffs' causes of action arose on August 7, 1998, the
date of the embassy bombings. See Vine v. Republic of
Iraq, 459 F.Supp.2d 10, 21 (D.D.C. 2006) (holding a
claim under the FSIA "arises on the date that the action in
question occurred"), rev' d in part on another ground sub
nom. Simon v. Republic of Iraq, 529 F.3d 1187, 1194-95
(D.C. Cir. 2008) (describing an argument to the contrary
as "rather strained"), rev' d on another ground sub nom.
Republic of Iraq v. Beaty, 556 U.S. 848, 129 S.Ct. 2183,
173 L.Ed.2d 1193 (2009). Therefore, unless the plaintiffs
can identify a "related action ... commenced under section
1605(a)(7)" or had brought a "prior action" that remained
"before the courts in any form," the last day to file a new
action under § 1605A was August 7, 2008, ten years after
the bombings.
Sudan does not dispute that several of the plaintiffs have
filed timely actions under § 1605A. The Owens plaintiffs
filed their original action under § 1605(a)(7) in October
2001 and after passage of the NDAA timely moved to
convert their prior action pursuant to § 1083(c)(2). Days
before the statutory deadline, the Amduso and W amai
plaintiffs filed new actions under § 1605A, and the
Osongo and Mwila plaintiffs filed suit on the last possible
day. Sudan does not challenge the timeliness of these
plaintiffs.
The Khaliq, Opati, and Aliganga plaintiffs are another
story. The Khaliq plaintiffs filed a complaint in
November 2004 but missed the statutory deadline to
convert that prior action under § 1083(c)(2) into a new
action under § 1605A. See Khaliq v. Republic of Sudan,
No. 1:04-cv-01536, at *3 (D.D.C. Sept. 9, 2009) (denying
*801**213 motion to convert under § 1083(c)(2)). Six
months later, they filed a new case under § 1605A,
asserting it was "related" both to their earlier suit and to
the Owens, Mwila, and Amduso actions. The district court
ordered briefing on whether the new suit was a "related
action" within the scope of § 1083(c)(3) and ultimately
allowed the case to proceed.
After the court held the evidentiary hearing and made its
findings on liability and well past August 2008, the
Aliganga plaintiffs moved to intervene in the Owens
action, which the district court allowed, holding their
claims were "related" to the Owens action per §
1083(c)(3). The Opati plaintiffs joined last, filing a suit
"related" to the Owens action under § 1083(c)(3) on July
24, 2012. The court allowed both the Aliganga and Opati
plaintiffs the benefit of its earlier findings on liability and
jurisdiction.
Sudan challenges the timeliness of the Khaliq, Opati, and
Aliganga plaintiffs, which raises two issues, only one of
which we need to address on appeal. First, Sudan asserts
that the limitation period in § 1605A(b) is jurisdictional
and therefore bars a court from hearing any untimely
action. Unless the limitation period in § 1605A(b) is
jurisdictional, Sudan forfeited this affirmative defense by
defaulting in the district court. See Practical Concepts,
811 F.2d at 1547. The plaintiffs argue that the time bar,
like most statutes of limitation, is not jurisdictional and
hence is forfeit. See Day v. McDonough, 547 U.S. 198,
202, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) ("Ordinarily
in civil litigation, a statutory time limitation is forfeited if
not raised in a defendant's answer or in an amendment
thereto").
Assuming the limitation period is jurisdictional, Sudan
contends the Khaliq, Opati, and Aliganga claims are
barred because they are not "related actions" under §
1605A(b). A "related action," Sudan urges, must be filed
by the same plaintiff who had filed an earlier action under
§ 1605(a)(7), which the Opati and Aliganga plaintiffs did
not do. We need not, however, decide what qualifies as a
"related action" because we hold the limitation period in §
1605A(b) is not jurisdictional. As a consequence Sudan
forfeited its limitation defense by defaulting in the district
court. See Harris v. Sec'y, U.S. Dep't of Veterans Affairs,
126 F.3d 339, 343 (D.C. Cir. 1997).
A line of recent Supreme Court cases has defined the
circumstances in which a statute of limitation is
jurisdictional. These cases uniformly recognize that a
limitation period is not jurisdictional "unless it governs a
court's adjudicatory capacity, that is, its subject-matter or
personal jurisdiction." Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428,435, 131 S.Ct. 1197, 179 L.Ed.2d
159 (2011). To have a jurisdictional effect, a statute of
limitation must "speak in jurisdictional terms," that is,
restrict "a court's power" to hear a claim. United States v.
Kwai Fun Wong, - U.S. --, 135 S.Ct. 1625, 1633,
191 L.Ed.2d 533 (2015) (quoting Arbaugh v. Y & H
Corp., 546 U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d
1097 (2006)). Unless the Congress has "clearly stated"
that it "imbued a procedural bar with jurisdictional
consequences," the bar does not have them. Id. at 1632
(quoting Sebelius v. Auburn Reg'! Med. Ctr., 568 U.S.
145, 153, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013))
(internal quotation marks and alterations omitted). Thus
has the Court "made plain that most time bars are
nonjurisdictional." Id.
Of course, the Congress need not incant "magic words" in
order clearly to demonstrate its intent. Henderson, 562
U.S. at 436, 131 S.Ct. 1197. We look for the Congress's
intent in "the text, context, and relevant historical
treatment of the provision at issue."
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431 U.S.App.D.C. 163
*802**214Musacchio v. United States, - U.S. --,
136 S.Ct. 709, 717, 193 L.Ed.2d 639 (2016) (quoting
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166, 130
S.Ct. 1237, 176 L.Ed.2d 18 (2010) (internal quotation
marks omitted)). Doing so shows that § 1605A(b) is not a
limit on the court's jurisdiction to hear an untimely FSIA
claim.
We begin, as we must, with the text of § 1605A(b), which
we note does not appear to "speak in jurisdictional
terms":
An action may be brought or maintained under this
section ... if commenced . . . [within] 10 years after April
24, 1996; or 10 years after the date on which the cause
of action arose.
Nothing in the section refers to the "court's power" to
hear a case. Nothing in § 1605A(a) "conditions its
jurisdictional grant on compliance with [the] statute of
limitations" in § 1605A(b). Musacchio, 136 S.Ct. at 717
(quoting Reed Elsevier, 559 U.S. at 165, 130 S.Ct. 1237).
Indeed, § 1605A(b) "is less 'jurisdictional' in tone" than
limitation periods held nonjurisdictional in prior cases.
See Auburn Reg'l Med. Ctr., 568 U.S. at 154, 133 S.Ct.
817 (comparing the permissive term "may" in one statute
with the mandatory term "shall" in another but holding
both were nonjurisdictional). The plain text alone is
enough to render the limitation period in § 1605A(b)
nonjurisdictional.
Sudan nonetheless contends that the reference to
"actions" rather than "claims" imbues the provision with
jurisdictional import. For this proposition Sudan cites
Spannaus v. U.S. Department of Justice, 824 F.2d 52
(D.C. Cir. 1987), in which we held a statute that similarly
barred untimely "actions" was jurisdictional. See28
U.S.C. § 240l(a). Sudan argues that by using the term
"action" in § 1605A(b) the Congress made a clear
statement replicating the jurisdictional reach of the
similarly phrased statute at issue in Spannaus.
This analogy has several problems. First, as the plaintiffs
point out, Spannaus was decided nearly a decade before
the Supreme Court erected the presumption against
jurisdictional effect, see Carlisle v. United States, 517
U.S. 416, 434, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996)
(Ginsburg, J. concurring) (making the first reference to a
presumption against jurisdictional effect), and the
Congress enacted § 1605A after that presumption had
been fully articulated, see Kontrick v. Ryan, 540 U.S. 443,
455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (criticizing
the "less than meticulous" use of the term 'jurisdictional"
in earlier decisions). Therefore, Spannaus is unpersuasive
on the matter. Second, the plaintiffs correctly note we did
not rely upon the phrase "every civil action" in Spannaus
to hold the limitation period in § 2401(a) jurisdictional.
Rather, we relied upon longstanding precedent
establishing that "§ 240l(a) is a jurisdictional condition
attached to the government's waiver of sovereign
immunity, and as such must be strictly construed." 824
F.2d at 55 (citing United States v. Mottaz, 476 U.S. 834,
106 S.Ct. 2224, 90 L.Ed.2d 841 (1986) and Soriano v.
United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d
306 (1957)); cf John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 139, 128 S.Ct. 750, 169 L.Ed.2d 591
(2008) (holding a statute of limitation as jurisdictional
when "[b]asic principles of stare decisis" required that
outcome). In this case, precedent does not help Sudan
because no court has given § 1605A(b) "a definitive
earlier interpretation" that could displace the presumption
against jurisdictional reach. Id. at 137-38, 128 S.Ct. 750.
Further, Sudan's invocation of the nostrum that identical
words in similar statutes demand an identical construction
finds little support in the most relevant precedents. See
Wong, 135 S.Ct. at 1629 (rejecting the argument that use
of the **215*803 phrase "shall forever be barred"
rendered a limitation period jurisdictional despite the
inclusion of the identical phrase in a jurisdictional statute
of limitation). Therefore, the use of the term "action" in a
provision held jurisdictional in Spannaus says little about
whether a similarly phrased statute also has jurisdictional
reach. Nor have courts attached jurisdictional significance
to the word "action" in other statutes. See, e.g., Reed
Elsevier, 559 U.S. at 166, 130 S.Ct. 1237 (holding
nonjurisdictional 17 U.S.C. § 41l(a), which bars any
"civil action" for infringement without prior registration
of the copyright); Hardin v. City Title & Escrow Co., 797
F.2d 1037, 1040 (D.C. Cir. 1986) (stating that 15 U.S.C. §
15b, which bars "[a]ny [untimely] action to enforce any
cause of action," is "a good example of a
non-jurisdictional time limitation"). Sudan presents no
reason we should embrace Spannaus yet ignore these
other precedents as well as the Supreme Court's most
recent guidance on statutory interpretation. Hence, we
find no support for Sudan's textual argument that §
1605A(b) is jurisdictional.
Sudan next argues from the structure of the statute in
which § 1605A(b) appears: Because the limitation period
follows immediately after the grant of jurisdiction in §
1605A(a), it takes on the jurisdictional nature of the prior
provision. Again, precedent suggests otherwise. As the
plaintiffs note, the Supreme Court has held the
"separation" of a time bar "from jurisdictional provisions"
implies the limitation period is not jurisdictional.
Gonzalez v. Thaler, 565 U.S. 134, 132 S.Ct. 641, 651, 181
L.Ed.2d 619 (2012); cf Blueport Co., LLC v. United
States, 533 F.3d 1374, 1380 (Fed. Cir. 2008) (holding
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431 U.S.App.D.C. 163
limits on patent infringement suits against the
Government are jurisdictional because they appear in the
same sentence as a general waiver of sovereign
immunity). The limitation period in § 1605A(b) and the
grant of jurisdiction in § 1605A(a) appear in two different
subsections of the terrorism exception, only one of which
speaks in jurisdictional terms. The remaining subsections
of § 1605A are plainly nonjurisdictional. See, e.g., 28
U.S.C. §§ 1605A(c) (private right of action), 1605A(d)
(additional damages), 1605A(e) (use of special masters),
1605A(g) (property disposition). That the limitation
period follows immediately after the jurisdictional
provisions of § 1605A(a) is of little import. See Gonzalez,
565 U.S. at 147, 132 S.Ct. 641 ("Mere proximity will not
turn a rule that speaks in nonjurisdictional terms into a
jurisdictional hurdle"). If proximity alone were enough,
then every subsection in a section containing a
jurisdictional provision would, by the transitive property,
also abut a jurisdictional subsection and therefore be
jurisdictional as well, an absurd proposition. Auburn
Reg'l Med. Ctr., 568 U.S. at 155, 133 S.Ct. 817 ("A
requirement we would otherwise classify as
nonjurisdictional ... does not become jurisdictional simply
because it is placed in a section of a statute that also
contains jurisdictional provisions").
Sudan also argues the history of § 1605A supports
reading the time bar in § 1605A(b) as jurisdictional. Prior
to the enactment of the 2008 NOAA, the FSIA terrorism
exception under § 1605(a)(7) contained a similar time bar
of ten years. See28 U.S.C. § 1605(t) (2006). Sudan now
contends that § 1605 was "undisputedly a purely
jurisdictional statute," rendering both the current and the
former limitation periods jurisdictional as well.
This argument mischaracterizes both old § 1605(t) and
new § 1605A. The time bar in the former terrorism
exception was in a separate subsection of the FSIA, §
1605(t), from the grant of jurisdiction over claims against
a state sponsor of terrorism in § 1605(a)(7). Section §
1605 did have several jurisdictional provisions, see§§
1605(a)(l)-(7), (b), (d), but each one expressly
*804**216 proclaimed its jurisdictional reach. See, e.g.,
28 U.S.C. §§ 1605(a) ("A foreign state shall not be
immune from the jurisdiction of courts of the United
States or of the States in any case" falling within one of
the seven enumerated exceptions). The other four
subsections of § 1605 made no mention of jurisdiction.
The difference is telling, but understandable as these
provisions-much like those in § 1605A---defined terms
(§ 1605(e)), limited discovery (§ 1605(g)), and governed
the choice of law and the calculation of damages (§
1605(c)), among other things, none of which could have
jurisdictional effect. As in § 1605A, § 1605 demonstrates
that when the Congress intends to make a prov1s10n
jurisdictional, it normally does so expressly. When words
of jurisdictional import are absent, so too, we presume, is
jurisdictional effect.
Sudan lastly argues that waivers of sovereign immunity
must be strictly construed. See Spannaus, 824 F.2d at 55.
But see Scarborough v. Principi, 541 U.S. 401, 421, 124
S.Ct. 1856, 158 L.Ed.2d 674 (2004) ("[L]imitations
principles should generally apply to the Government 'in
the same way that' they apply to private parties") (quoting
Franconia Assocs. v. United States, 536 U.S. 129, 145,
122 S.Ct. 1993, 153 L.Ed.2d 132 (2002)). The Supreme
Court has twice addressed this very point and rejected it
for time bars that conditioned waivers of the U.S.
Government's sovereign immunity. Irwin v. Dep't of
Veterans Affairs, 498 U.S. 89, 94-96, 111 S.Ct. 453, 112
L.Ed.2d 435 (1990); Wong, 135 S.Ct. at 1636. Treating a
time bar as nonjurisdictional, the Court has said, "is likely
to be a realistic assessment of legislative intent" and
"amounts to little, if any, broadening of the congressional
waiver" of sovereign immunity. Irwin, 498 U.S. at 95,
111 S.Ct. 453. Therefore, Sudan's argument that
sovereignty gives jurisdictional import to the limitation
period in the FSIA terrorism exception is unpersuasive.
In any event, Sudan misses the distinction between a
waiver of sovereign immunity and an exception to the
statutory grant of foreign sovereign immunity. The
Congress "did not waive [a foreign state's] sovereign
immunity in enacting [the FSIA terrorism exception]"
because "only the sovereign can forswear the sovereign's
legal rights." Simon, 529 F.3d at 1196. Rather, "[i]n the
terrorism exception the Congress qualified the statutory
grant of immunity to [foreign sovereigns]," which is
"itself 'a matter of grace and comity.' " Id. (quoting
Verlinden, 461 U.S. at 486, 103 S.Ct. 1962). Because the
FSIA exceptions are not waivers of sovereign immunity,
the rule of strict construction does not apply.
Having reviewed the text, structure, or history of the
FSIA terrorism exception, we see "no authority
suggesting the Congress intended courts to read [§
1605A(b)] any more narrowly than its terms suggest." Id.
Sudan's arguments to the contrary fail. We therefore hold
that the limitation period in § 1605A(b) is not
jurisdictional. It follows that Sudan has forfeited its
affirmative defense to the Khaliq, Opati, and Aliganga
actions by failing to raise it in the district court. See
Musacchio, 136 S.Ct. at 717; Harris, 126 F.3d at 343. As
a consequence, we have no need to consider Sudan's
interpretation of a "related action" under NOAA §
1083(c)(3).
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431 U.S.App.D.C. 163
V. Jurisdiction and Causes of Action for Claims of
Third Parties
Sudan next takes aim at claims brought under state and
federal law by the family members of those killed or
injured in the embassy bombings. First, Sudan contends §
1605A(a) does not grant the court jurisdiction to hear a
claim from a plaintiff ( or the legal representative of a
plaintiff) who was not physically injured by a terrorist
attack. Second, even if jurisdiction is proper, *805**217
Sudan argues the federal cause of action in § 1605A(c)
supplies the exclusive remedy for a FSIA claimant,
precluding claims under state law. Finally, Sudan insists a
family member who was not present at the scene of the
embassy bombings cannot state a claim for intentional
infliction of emotional distress (IIED) under District of
Columbia law.
A. Jurisdiction
We turn first to Sudan's jurisdictional argument, which
we are obliged to address notwithstanding Sudan's
default. The plaintiffs in this case have brought two
different types of claims under various sources of law.
First are the claims of those physically injured by the
embassy bombings or by the legal representatives of those
now deceased or incapacitated. Second are the claims of
family members of those physically injured or killed by
the bombings who seek damages for their emotional
distress. Sudan contends the FSIA extends jurisdiction
only to members of the first group and their legal
representatives. The claims of family members for
emotional distress, it argues, are outside the jurisdiction
conferred upon the court.
Sudan's argument turns upon the meaning of the phrase
"the claimant or the victim" in § 1605A(a)(2)(A)(ii).
Section 1605A(a) gives the court jurisdiction and
withdraws immunity only when "the claimant or the
victim" falls within one of four categories: U.S. nationals,
members of the armed forces, and employees or
contractors of the United States acting within the scope of
their employment. A separate subsection of the terrorism
exception provides a federal cause of action to the same
groups of plaintiffs and their legal representatives. 28
U.S.C. § 1605A(c).
Sudan contends that "the claimant" in §
1605A(a)(2)(A)(ii) refers only to the legal representative
of a victim of a terrorist attack. This would effectively
align the grant of jurisdiction with the federal cause of
action under § 1605A(c). That is, under Sudan's proffered
interpretation, a court would have jurisdiction only over
claims brought by persons who could invoke the federal
cause of action in § 1605A(c). Applied to the case at
hand, this might preclude jurisdiction over a claim for
emotional distress brought by a relative of someone killed
or injured by the embassy bombings because a family
member is arguably neither a victim of the attack nor the
legal representative of a victim.
Sudan's argument has several problems. First and
foremost, Sudan's interpretation is inconsistent with the
plain meaning and the structure of the statute, as is clear
from the differences between the grant of jurisdiction in §
1605A(a) and the cause of action in § 1605A(c). Section
1605A(a)(2) grants jurisdiction when "the claimant or the
victim" is a member of one of the four enumerated
groups. In contrast, § 1605A(c) authorizes a cause of
action not only for those four groups but also for the legal
representative of a member of those groups. If the
Congress had intended § 1605A(a)(2) to mirror the scope
of § 1605A(c), then it would have used the same
term-"legal representative"-in both subsections (i.e.,
"the legal representative or the victim"), as it did with the
verbatim enumeration of the four qualifying groups. That
it did not signals its intent to give the term "claimant" in §
1605A(a)(2) a meaning different from and broader than
"the legal representative" in § 1605A(c). See Russello v.
United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d
17 (1983).
What, then, does the FSIA mean by the terms "claimant"
and "legal representative"? The plain meaning of
claimant, the plaintiffs correctly note, is simply someone
who brings a claim for **218*806 relief. Who can be a
claimant is typically defined by the substantive law under
which a plaintiff states a claim. By contrast, the term
"legal representative" contemplates a far narrower
universe of persons based upon principles of agency or a
special relationship, such as marriage. See, e.g., Fed.
Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726
F.3d 62, 80 (2d Cir. 2013) ("In its broadest usage, the
phrase 'legal representative' may refer simply to '[o]ne
who stands for or acts on behalf of another' "). Federal
and state procedural law, not the substantive law under
which a plaintiff states a claim, typically defines who may
serve as a legal representative in a given suit. SeeFed. R.
Civ. P. l 7(b)(3); Gurley v. Lindsley, 459 F.2d 268, 279
(5th Cir. 1972) (applying Texas law in accord with Rule
17(b)). Thus, a legal representative is a special type of
claimant who proceeds on behalf of an absent party with a
substantive legal right.
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Sudan nonetheless offers three reasons we should
narrowly interpret "claimant" to mean no more than
"legal representative." First, Sudan argues that
interpreting "claimant" to mean "legal representative" is
necessary to "harmonize[ ]" the scope of jurisdiction
under § 1605A(a) with the cause of action under §
1605A(c). If the terms had different meanings, Sudan
warns, then "certain plaintiffs [could] establish
jurisdiction under § 1605A(a)" but anomalously could not
"avail[ ] themselves of the private right of action in §
1605A(c)." Here Sudan is assuming a grant of jurisdiction
must be no broader than the causes of action that may be
brought under it. But that does not follow. Cf FDIC v.
Meyer, 510 U.S. 471, 484, 114 S.Ct. 996, 127 L.Ed.2d
308 (1994) (noting that "whether there has been a waiver
of sovereign immunity" and "whether the source of
substantive law" "provides an avenue for relief' are "two
'analytically distinct' inquiries"). The other exceptions to
sovereign immunity in the FSIA exemplify this
distinction because they grant the courts jurisdiction over
claims against foreign sovereigns but neither create nor
withdraw substantive causes of action for FSIA plaintiffs.
See Helmerich & Payne, 137 S.Ct. at 1324 ("Indeed,
cases in which the jurisdictional inquiry does not overlap
with the elements of a plaintiff's claims have been the
norm in cases arising under other exceptions to the
FSIA").
Furthermore, even under the prior terrorism exception, the
Congress authorized a cause of action-in the Flatow
Amendment-with a narrower reach than the grant of
jurisdiction in § 1605(a)(7). See Leibovitch v. Islamic
Republic of Iran, 697 F.3d 561, 570-71 (7th Cir. 2012).
That the Flatow Amendment applied only to state
officials, not foreign states, took "nothing away from" the
grant of jurisdiction under § 1605(a)(7) because the
broader jurisdictional provision operated independently of
the narrower cause of action. See Cicippio-Puleo, 353
F.3d at 1035-36. Accordingly, we declined to
"harmonize" the broad grant of jurisdiction in the old
terrorism exception with the narrower cause of action
provided by the Flatow Amendment because doing so
would have conflicted with the text of both provisions. Id.
at 1032-33. So too here. Again the Congress has
authorized a narrower cause of action, § 1605A(c),
correlative to a broader jurisdictional grant, § 1605A(a),
and as before, we see no reason to distort the plain
meaning of either provision in order to make them
coextensive.
Second, Sudan contends a broad interpretation of
"claimant" would "render[ the term 'victim'
superfluous." Not so; as the plaintiffs note, the use of both
terms affords jurisdiction when "either the claimant or the
victim is a national of the United States" or is within one
of the other three groups identified in the statute.
*807**219La Reunion Aerienne v. Socialist People's
Libyan Arab Jamahiriya, 533 F.3d 837, 844 (D.C. Cir.
2008).
Third, Sudan argues that reading "claimant" to mean "one
who brings a claim" would "greatly expand[ ] the
universe of possible plaintiffs, contrary to Congressional
intent." The term "claimant," unlike the term "victim," is
indeed less bounded by the underlying acts that give the
courts jurisdiction: Only a limited set of individuals could
properly be considered victims of the 1998 embassy
bombings, whereas the term "claimant" may appear to
encompass a larger universe of possible plaintiffs. That
universe is actually quite limited, however. The FSIA
itself limits claimants to those seeking "money damages"
"for personal injury or death," 28 U.S.C. § 1605A(a)(l).
See La Reunion Aerienne, 533 F.3d at 845 (allowing an
insurer to recover payments made to survivors and to
estates of those killed in an airline bombing because the
insureds' claims were "personal injury claim[s] under
traditional common-law principles") (internal quotation
marks, emphasis, and citation removed).
Substantive law also limits who is a proper claimant
under the FSIA. This is clearly the case with the federal
cause of action in the FSIA, which limits claimants to the
four enumerated groups and their legal representatives. So
too with substantive law outside the FSIA: We have held
the common-law tort of IIED limits recovery to the
immediate family of a victim who is physically injured or
killed. See Bettis v. Islamic Republic of Iran, 315 F.3d
325, 338 (D.C. Cir. 2003) (rejecting claims for IIED
brought by nieces and nephews of a U.S. national taken
hostage); Restatement (Second) of Torts § 46 (1965).
Therefore, not every person who experiences emotional
distress from a major terrorist attack-a universe that
could be large indeed-can state a claim for IIED absent
some close relationship to a victim who was injured or
killed. Therefore, due to the limitations imposed upon
potential claimants both by the FSIA and by substantive
law, we are not persuaded by Sudan's argument that the
plain meaning of "claimant" produces "absurd results" or
is "contrary to Congressional intent."
In sum, by its plain text, the FSIA terrorism exception
grants a court jurisdiction to hear a claim brought by a
third-party claimant who is not the legal representative of
a victim physically injured by a terrorist attack. Who in
particular may bring a claim against a foreign sovereign is
a question of substantive law, wholly separate from the
question of our jurisdiction.
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B. Causes of Action
Sudan next contends the foreign family members cannot
state a claim under any source of substantive law. Starting
from first principles, we reiterate that the question
whether a statute withdraws sovereign immunity is
"analytically distinct" from whether a plaintiff has a cause
of action. See Meyer, 510 U.S. at 484, 114 S.Ct. 996;
United States v. Mitchell, 463 U.S. 206, 218, 103 S.Ct.
2961, 77 L.Ed.2d 580 (1983). As the district court
correctly recognized, we have never required the
Congress, in order to effectuate a grant of jurisdiction,
expressly to "define the substantive law that applies."
Owens V, 174 F.Supp.3d at 286. Indeed, before enactment
of the FSIA, the courts-absent objection by the State
Department-had jurisdiction to hear suits against a
foreign government under state and federal law even
though no statute provided rules of decision for such
cases. See, e.g., Victory Transp. Inc. v. Comisaria Gen. de
Abastecimientos y Transportes, 336 F.2d 354 (2d Cir.
1964) (enforcing a state-law arbitration agreement against
a foreign sovereign *808**220 via the Federal Arbitration
Act). Hence, unless the enactment of the FSIA or of §
1605A somehow changed this situation, a plaintiff
proceeding under the FSIA may rely upon alternative
sources of substantive law, including state law.
Sudan would have us find an abrogation of a plaintiff's
access to state law in§ 1606 of the FSIA, which provides
in relevant part:
As to any claim for relief with respect to which a
foreign state is not entitled to immunity under section
1605 or 1607 of this chapter, the foreign state shall be
liable in the same manner and to the same extent as a
private individual under like circumstances; but a
foreign state except for an agency or instrumentality
thereof shall not be liable for punitive damages.
When the original FSIA terrorism exception was in force,
§ 1606 governed what a claimant could recover from a
foreign sovereign. This was because the original
exception was codified as a subsection of § 1605, to
which § 1606 expressly applied. After we declined in
Cicippio-Puleo to infer a federal cause of action against a
foreign sovereign arising from § 1605(a)(7) or from the
Flatow Amendment, a plaintiff using the old terrorism
exception could press a claim under state law, as qualified
by § 1606, in the same manner as any other FSIA
plaintiff. When the Congress passed the 2008 NOAA, it
repealed old § 1605(a)(7) and codified the current
terrorism exception in new § 1605A. As a result, § 1606,
which references only § 1605 and § 1607, does not apply
to the current FSIA terrorism exception. This, Sudan
contends, demonstrates the Congress's intent to foreclose
a plaintiff from relying upon state law when suing under §
1605A. Essentially, Sudan suggests the Congress struck a
deal when it recodified the new terrorism exception in §
1605A: A plaintiff could sue under the new federal cause
of action but could no longer press a state-law claim
against a foreign sovereign via the pass-through process
endorsed by Cicippio-Puleo. Therefore, according to
Sudan, plaintiffs who are ineligible for the purportedly
exclusive remedy of the federal cause of
action-including the foreign family members in this
case-were left without a "gateway" to any substantive
law under which to state a claim. Contra Leibovitch, 697
F.3d at 572 ("Although § 1605A created a new cause of
action, it did not displace a claimant's ability to pursue
claims under applicable state or foreign law upon the
waiver of sovereign immunity" (quoting Estate of Doe v.
Islamic Republic of Iran, 808 F.Supp.2d 1, 20 (D.D.C.
2011))).
One might wonder, as the plaintiffs do, why we need to
reach this nonjurisdictional argument, which Sudan
forfeited by failing to appear in the district court. See
Practical Concepts, 811 F.2d at 1547. We do so because
we have discretion to reach the question, see Acree, 370
F.3d at 58, and this case presents sound reasons for doing
so. The question presented is "purely one of law
important in the administration of federal justice" because
most cases invoking the terrorism exception are filed in
this circuit, see28 U.S.C. § 139l(f)(4), and "resolution of
the issue does not depend on any additional facts not
considered by the district court." Acree, 370 F.3d at 58
(quoting Roosevelt v. E.I. Du Pont de Nemours & Co.,
958 F.2d 416, 419 n.5 (D.C. Cir. 1992)). Review is
particularly appropriate here because the foreign family
member plaintiffs have secured billions in damages
against a foreign sovereign. See id. (finding extraordinary
circumstances from a "nearly-billion dollar default
judgment against a foreign government"). We therefore
exercise our discretion to consider Sudan's
nonjurisdictional argument that the pass-through approach
recognized in **221 *809Cicippio-Puleo did not survive
enactment of § 1605A.
In our view, Sudan assigns undue significance to § 1606.
On its face, that section does not authorize a plaintiff to
resort to state ( or federal or foreign) law in a suit against a
foreign sovereign. Nor does it create a substantive body of
law for such an action. See First Nat'[ City Bank, 462
U.S. at 620-21, 103 S.Ct. 2591. Rather, as the plaintiffs
argue and the district court recognized, § 1606 simply
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limits the liability of a foreign state to "the same manner
and to the same extent as a private individual under like
circumstances" regardless of what substantive law is
being applied. The exclusion of punitive damages from
the pass-through approach reinforces our confidence that
§ 1606 operates only to limit, not to create, the liability of
a foreign state. As the Supreme Court has said, the
Congress made clear that the FSIA, including § 1606, was
not "intended to affect the substantive law of liability"
applicable to a foreign sovereign. Id. at 620, 103 S.Ct.
2591 (quoting H.R. Rep. No. 94-1487, at 12 (1976)). In
keeping with this straightforward reading, we have
recognized that § 1606 does not authorize a court to craft
federal common law, but rather requires it to apply state
law to suits under the FSIA. See Bettis, 315 F.3d at 333
(noting that § 1606 "instructs federal judges to find the
relevant law, not to make it").
One might wonder, then, why the Congress moved the
FSIA terrorism exception from § 1605, where it was
covered by § 1606, to § 1605A, where it is not. Contrary
to Sudan's convoluted argument about an implied
withdrawal of remedies under state law, the new
exception itself provides a ready answer. If the Congress
had reenacted the new terrorism exception in the same
section as the old one, then it would have created an
irreconcilable conflict between the new federal cause of
action, which allows the award of punitive damages, and
§ 1606, which prohibits them. In order to avoid this
conflict, a court would have either to disregard a central
element of the federal cause of action or to hold the new
exception implicitly repealed § 1606 as applied to state
sponsors of terror. See Morton v. Mancari, 417 U.S. 535,
549, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) (noting the
"cardinal rule ... that repeals by implication are not
favored") (internal quotation marks removed). A voiding a
conflict between § 1605 and § 1606, rather than Sudan's
strained "gateway" argument, more likely explains the
Congress's purpose in moving the terrorism exception out
of § 1605.
Of course, in most cases brought under the new terrorism
exception, the plaintiff need not rely upon state tort law.
This does not, however, imply that the Congress intended
to foreclose access to state law by those who need it, as
do foreign family members. U.S. nationals will continue
to sue under § 1605A(c) and benefit from its consistent
application. But the pass-through approach remains viable
to effectuate the intent of the Congress to secure
recoveries for other plaintiffs harmed by a terrorist attack.
C. Intentional Infliction of Emotional Distress
We turn now to Sudan's third and final argument
respecting family members who have brought state-law
claims for IIED. The district court held that District of
Columbia law controls these actions, Owens IV, 826
F.Supp.2d at 157, which Sudan does not contest.
Judgments under D.C. law in favor of the foreign family
member plaintiffs total more than $7 billion. Sudan
contends these awards are invalid because D.C. tort law
requires a plaintiff to be present at the scene of a
defendant's outrageous and extreme conduct in order to
**222*810 recover for IIED. In particular, Sudan points
to Pitt v. District of Columbia, in which this court applied
the "presence" requirement to bar a claim for IIED under
D.C. law. 491 F.3d 494, 507 (D.C. Cir. 2007).
That case does not extend as far as Sudan contends. In
Pitt, we noted "[t]he District of Columbia has adopted the
standard for intentional infliction of emotional distress
from the Restatement (Second) of Torts." Id. (citing Sere
v. Grp. Hospitalization, Inc., 443 A.2d 33, 37 (D.C.
1982)). As Sudan points out, the Second Restatement
contains a presence requirement:
Where such [ extreme and outrageous] conduct is
directed at a third person, the actor is subject to liability
if he intentionally or recklessly causes severe emotional
distress (a) to a member of such person's immediate
family who is present at the time, whether or not such
distress results in bodily harm, or (b) to any other
person who is present at the time, if such distress
results in bodily harm."
The Restatement, however, also provides that "there may
... be other circumstances under which the actor may be
subject to liability for the intentional or reckless infliction
of emotional distress." Restatement (Second) of Torts §
46 (1965) (caveat). A comment to the Restatement
expressly applies this caveat to the presence requirement,
"leav[ing] open the possibility of situations in which
presence at the time may not be required." Id. cmt. 1.6
Although we did apply the presence requirement in Pitt,
the factual situation there was quite different than in the
present case. The plaintiff in Pitt alleged emotional
distress from the "filing of a false and misleading
affidavit and possible evidence tampering." 491 F.3d at
507. Allowing a claim for IIED stemming from a
procedural irregularity in law enforcement, we reasoned,
would "substantially expand[ ] the scope of the third-party
IIED tort under District of Columbia law," id., without
any principled limitation on future actions. In contrast, a
massive terrorist attack resulting in widespread casualties
and worldwide attention would appear so exceptional that
recognizing an appropriate plaintiffs claim for IIED
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431 U.S.App.D.C. 163
would not broaden the scope of liability to innumerable
similar incidents. Therefore, nothing in Pitt suggests D.C.
law would apply the presence requirement to an act of
international terrorism.
At the same time, we proceed with caution when applying
D.C. tort law to this novel situation. The District of
Columbia has yet to decide whether it would apply the
presence requirement or the exception in the Restatement
to an act of international terrorism. Neither has Maryland,
the common law of which is authoritative when D.C. law
is silent. Clark v. Route, 951 A.2d 757, 763 n.5 (D.C.
2008). Although there are convincing reasons to do so,
there are also good reasons to draw back. Some of the
first cases applying the caveat in the Restatement dealt
with hostage taking. See, e.g., Stethem, 201 F.Supp.2d at
89-91 ; Sutherland v. Islamic Republic of Iran, 151
F.Supp.2d 27, 50 (D.D.C. 2001). Hostage takers often
target the family members of the victim, demanding they
pay a ransom for the release of the hostage. The
emotional distress of the family **223*811 member is
intended to advance the hostage taker's aims. Therefore,
hostage taking seems to be the type of case in which the
defendant's extreme and outrageous conduct is "directed
at a third person" but is intended also to cause severe
emotional distress to the absent plaintiff. SeeDan B.
Dobbs, The Law of Torts § 307, at 384 (2000) ("If the
defendants' conduct is sufficiently outrageous and
intended to inflict severe emotional harm upon a person
which [sic] is not present, no essential reason of logic or
policy prevents liability"). If so, the plaintiff's
contemporaneous physical presence is not required
because the plaintiff is the direct target of the tortious
conduct, rather than a mere bystander, as the latest
version of the Restatement recognizes. SeeRestatement
(Third) of Torts: Phys. & Emot. Harm § 46 (2012) (cmt.
m) ("If an actor harms someone for the purpose of
inflicting mental distress on another person, the
[presence] limitations ... do not apply").
In contrast, a terrorist bombing is not so precisely targeted
at certain absent individuals. Rather than leveraging
distress inflicted upon specific third parties to achieve
their aims, terrorist bombings typically target the public at
large in order to create a general environment of fear and
insecurity. Widespread distress, rather than distress
"directed at" or confined to particular persons, provides a
considerably weaker basis for IIED liability. Indeed, the
Second Restatement would preclude an individual's
recovery for an event causing widespread emotional
distress, absent some unique, foreseeable, and intended
harm to the plaintiff. Restatement (Second) of Torts § 46
cmt. 1. For this reason too, the drafters of the Third
Restatement of Torts have criticized several district court
decisions for abandoning the presence requirement in
FSIA terrorism cases. SeeRestatement (Third) of Torts:
Phys. & Emot. Harm § 46 (2012) reporter's note cmt. m
(criticizing the "questionable determination that the
terrorists acts were directed not only to the victims of the
attack but also at their family members"). Although we
have not decided the matter, we too have expressed
skepticism that the sensational nature of a terrorist attack
warrants an exception to the limitations of IIED in the
Restatement. See Bettis, 315 F.3d at 334 ("If any person
that Iran hoped to distress ... could recover under section
46(1) as a direct victim of Iran's conduct, virtually anyone
claiming he or she was affected could recover").
We believe a court may reasonably characterize a terrorist
bombing as falling either within the caveat in the Second
Restatement or beyond the scope of a sovereign's liability
to third parties. The plaintiffs once again urge us not to
reach this nonjurisdictional question forfeited by Sudan's
default, but as with the availability of state law claims, we
see sound reasons for exercising our discretion to consider
the matter. See Acree, 370 F.3d at 58. Billions of dollars
have been awarded to foreign family members as
damages for IIED. Furthermore, how to apply the
Restatement to terrorist bombings is a question,
unfortunately, almost certain to recur in this Circuit.
Finally, this is a pure question of law that "does not
depend on any additional facts not considered by the
district court," Roosevelt, 958 F.2d at 419 & n.5, and
potentially may bear upon sensitive matters of
international relations. Cf Acree, 370 F.3d at 58. The
situation therefore presents "exceptional circumstances"
sufficient to overcome our ordinary reluctance to hear
nonjurisdictional arguments not raised before the district
court. Id.
That said, the choice is not ours to make. District of
Columbia law controls the scope of IIED liability, and the
D.C. Court of Appeals has yet to render a decision on the
matter. Therefore, we shall certify the question to that
court pursuant to D.C. Code Ann. § 11-723. **224*812
Whether to certify a question "rests in the sound
discretion of the federal court." Lehman Bros. v. Schein,
416 U.S. 386, 390-91, 94 S.Ct. 1741, 40 L.Ed.2d 215
(1974). "The most important consideration guiding the
exercise of this discretion . .. is whether the reviewing
court finds itself genuinely uncertain about a question of
state law that is vital to a correct disposition of the case
before it." Tidier v. Eli Lilly & Co., 851 F.2d 418, 426
(D.C. Cir. 1988).
This case presents such a question. We are genuinely
uncertain whether the D.C. Court of Appeals would apply
the presence requirement in the Second Restatement of
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431 U.S.App.D.C. 163
Torts to preclude recovery for IIED by family members
absent from the scene of a terrorist bombing. Other states
have reached different conclusions on this question. See
Peterson, 515 F.Supp.2d at 43-44 & n.19 (identifying
Florida, California, and Vermont as states that apply the
presence requirement and Louisiana, and Pennsylvania as
states that do not).
Furthermore, the question is one of significant public
interest in the District of Columbia. See Eli Lilly & Co. v.
Home Ins. Co., 764 F.2d 876, 884 (D.C. Cir. 1985).
Because the great majority of claims under the FSIA
terrorist exception are brought in the federal district court
in D.C. pursuant to the FSIA venue provision in 28
U.S.C. 139l(f)(4), this question of D.C. tort law will
likely arise in future cases before our district court. And
the District, as the home of thousands of government
employees, military service members, and contractors,
and as itself a potential target of terrorist attacks, has a
substantial interest in determining who may recover for
the emotional distress caused by a terrorist attack.
We therefore certify the following question to the D.C.
Court of Appeals:
Must a claimant alleging emotional distress ansmg
from a terrorist attack that killed or injured a family
member have been present at the scene of the attack in
order to state a claim for intentional infliction of
emotional distress?
VI. Punitive Damages
Having affirmed that the district court properly asserted
jurisdiction over the plaintiffs' claims and held Sudan
liable for their injuries, we now review the amount in
damages it awarded to the plaintiffs. The court awarded
$10.2 billion in damages, including more than $4.3 billion
in punitive damages under both state and federal law. See,
e.g., Opati, 60 F.Supp.3d at 81-82. In post-judgment
motions under Rule 60(b)(6), Sudan asked the district
court to vacate the awards of punitive damages. The court
declined, reasoning that any nonjurisdictional legal error
in assessing punitive damages against Sudan did not
present an "extraordinary circumstance" that would
justify vacatur. Owens V, 174 F.Supp.3d at 288; see
Gonzalez v. Crosby, 545 U.S. 524, 536, 125 S.Ct. 2641,
162 L.Ed.2d 480 (2005) ("[R]elief under Rule 60(b)(6) ...
requires a showing of 'extraordinary circumstances' ").
Sudan's renewed request to vacate these awards is now
before us both on appeal from the denial of Sudan's Rule
60(b) motions and on direct appeal from the final
judgments. Sudan principally contends the FSIA terrorism
exception does not retroactively authorize the imposition
of punitive damages against a sovereign for conduct
occurring before the passage of § 1605A. As explained
below, we agree. But before reaching the merits, we first
explain why we are addressing the matter despite Sudan's
default in the district court.
A. Whether to Review the Awards of Punitive
Damages
The plaintiffs contend, and the district court agreed, we
need not consider Sudan's argument against the awards of
punitive damages because it forfeited this **225*813
nonjurisdictional challenge by failing to appear in the
district court. While this is true, see Practical Concepts,
811 F.2d at 1547, there are sound reasons to exercise our
discretion to hear Sudan's argument, whether under Rule
60(b) or on direct appeal.
First, Supreme Court precedent generally favors more
searching appellate review of punitive damages than of
other nonjurisdictional matters. See Pac. Mut. Life Ins. v.
Haslip, 499 U.S. 1, 18, 111 S.Ct. 1032, 113 L.Ed.2d 1
(1991) (warning against "unlimited judicial discretion" in
fixing punitive damages). Heightened scrutiny is
appropriate because punitive damages are in the nature of
criminal punishment. Id. at 19, 111 S.Ct. 1032.
Accordingly, the Court has closely reviewed the size of
punitive damage awards relative to compensatory
damages, State Farm Mut. Auto. Ins. v. Campbell, 538
U.S. 408, 426, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003),
the availability of punitive damages for conduct occurring
outside a court's territorial jurisdiction, BMW of N. Am.,
Inc. v. Gore, 517 U.S. 559, 572, 116 S.Ct. 1589, 134
L.Ed.2d 809 (1996), and the factors a court may consider
in imposing punitive damages, Haslip, 499 U.S. at 21-22,
111 S.Ct. 1032. In particular, the Court has emphasized
the importance of judicial review to ensure awards of
punitive damages comport with the Constitution. Honda
Motor Co. v. Oberg, 512 U.S. 415, 432, 114 S.Ct. 2331,
129 L.Ed.2d 336 (1994). Consistent with these concerns,
the scope of appellate review for a timely challenge to an
award of punitive damages is broad. See Cooper Indus.,
Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 436,
121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (reviewing de
novo constitutional challenges to punitive damages). We
think the same concerns call for a similarly exacting
standard for review of an untimely challenge to an award
of punitive damages. Our view is reinforced by the
Court's warning that the "[r]etroactive imposition of
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punitive damages would raise a serious constitutional
question." Landgraf v. USI Film Prods., 511 U.S. 244,
281, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).7
In order to avoid possible constitutional infirmities, other
Circuits too have reviewed denials of Rule 60(b)(6)
motions to vacate punitive damages awarded in default
judgments. See Watkins v. Lundell, 169 F.3d 540, 545
(8th Cir. 1999); Merrill Lynch Mortg. Corp. v. Narayan,
908 F.2d 246, 253 (7th Cir. 1990). Although review of
punitive damages entered upon default is not always
warranted, we think the circumstances of this case merit
appellate review. Of particular note are the size of the
awards (totaling $4.3 billion), the presentation of a novel
question of constitutional law (retroactivity), and the
potential effect on U.S. diplomacy and foreign relations.
We believe these factors present the "extraordinary
circumstances" needed for review under Rule 60(b)(6).'
**226*814This issue also comes before the court on
direct appeal from the default judgments. As previously
mentioned, we may consider nonjurisdictional questions
not raised by the parties on direct appeal in "exceptional
circumstances." Acree, 370 F.3d at 58. Our discretion is
properly exercised over pure questions of law-such as
the retroactivity of punitive damages-that need no
further factual development. Roosevelt, 958 F.2d at 419 &
n. 5. Direct review of forfeited arguments is also
warranted for questions that bear upon sensitive matters
of international relations. Acree, 370 F.3d at 58 (finding
exceptional circumstances from a "nearly-billion dollar
default judgment against a foreign government").
Furthermore, because most cases invoking the FSIA
exception for terrorism are brought in this district, our
decision on retroactivity will provide useful guidance to
the district court. Compare Owens V, 174 F.Supp.3d at
291 (doubting whether pumtlve damages apply
retroactively but declining to vacate award) with
Flanagan v. Islamic Republic of Iran, 190 F.Supp.3d 138,
182 (D.D.C. 2016) (vacating punitive damages despite the
defendant's default) and Kumar v. Republic of Sudan, No.
2:10-cv-171, at 39 n.17 (E.D. Va. Oct. 25, 2016)
(approving retroactive assessment of punitive damages);
see also Leatherman, 532 U.S. at 436, 121 S.Ct. 1678
(noting that "[i]ndependent review [of punitive damages]
is . . . necessary if appellate courts are to maintain control
of, and to clarify, the legal principles"). Given the size of
the awards, the strength of Sudan's contentions, and the
likelihood of this question recurring, we believe
reviewing the award of punitive damages both promotes
"the interests of justice" and "advance[s] efficient judicial
administration." City of Newport, 453 U.S. at 257, 101
S.Ct. 2748. We therefore exercise our discretion to
consider Sudan's belated objections.
B. Retroactivity of Punitive Damages Under §
1605A(c)
In challenging the punitive damage awards, Sudan raises
the "presumption against retroactive legislation"
explicated in Landgraf v. USI Film Products, 511 U.S.
244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Courts
"have declined to give retroactive effect to statutes
burdening private rights unless Congress had made clear
its intent." Id. at 270, 114 S.Ct. 1483. This presumption
avoids "the unfairness of imposing new burdens on
persons after the fact," absent a clear signal of
congressional intent to do so. Id. The Court in Landgraf
noted the retroactive authorization of punitive damages, in
particular, "would raise a serious constitutional question."
Id. at 281, 114 S.Ct. 1483.
An analysis of retroactivity entails two steps. First, the
court must determine "whether Congress has expressly
prescribed the statute's proper reach." Id. at 280, 114
S.Ct. 1483. If the Congress has clearly spoken, then
"there is no need to resort to judicial default rules," and
the court must apply the statute as written. Id. When "the
statute contains no such express command," the court
must then evaluate whether the legislation "operate[s]
retroactively," as it does if it "would impair rights a party
possessed when he acted, increase a party's liability for
past conduct, or impose new duties with respect to
transactions already completed." Id. If the **227*815
statute operates retroactively but lacks a clear statement of
congressional intent to give it retroactive effect, then the
Landgraf presumption controls and the court will not
apply the statute to pre-enactment conduct. Sudan argues
both that the new FSIA terrorism exception does not
contain a clear statement of retroactive effect and that it
operates retroactively.
1. Section 1605A operates retroactively
As for the latter point, it is obvious that the imposition of
punitive damages under the new federal cause of action in
§ 1605A(c) operates retroactively because it increases
Sudan's liability for past conduct. Under § 1605(a)(7), the
predecessor to the current terrorism exception, and the
pass-through approach recognized in Cicippio-Puleo, §
1606 expressly barred courts from awarding punitive
damages against a foreign sovereign. The 2008 NOAA
plainly applies the new cause of action in § 1605A(c) to
the pre-enactment conduct of a foreign sovereign. Further,
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recall that, pursuant to NDAA § 1083(c), a plaintiff may
convert a pending, prior action under § 1605(a)(7) into a
new action under § 1605A(c) or file a new suit arising
from the same act or incident as an action "related" to an
original suit timely filed under § 1605(a)(7). In both
cases, the new actions under § 1605A(c) necessarily are
based upon the sovereign defendant's conduct before
enactment of § 1605A.
The plaintiffs dispute this, relying upon Republic of
Austria v. Altmann, 541 U.S. 677, 124 S.Ct. 2240, 159
L.Ed.2d 1 (2004 ), in which the Supreme Court held the
jurisdictional provisions of the FSIA apply to conduct
occurring prior to its enactment notwithstanding the
absence of a clear statement to that effect in the statute.
Id. at 692-96, 700, 124 S.Ct. 2240. That jurisdiction under
the FSIA applies retroactively, however, has no bearing
upon the question whether the authorization of punitive
damages does as well.
Unlike the grant of jurisdiction held retroactive in
Altmann, the authorization of punitive damages "adheres
to the cause of action" under § 1605A(c), making it
"essentially substantive" and thereby triggering
retroactive operation. Id. at 695 n.15, 124 S.Ct. 2240; cf
Landgraf, 511 U.S. at 274, 114 S.Ct. 1483 ("Application
of a new jurisdictional rule usually takes away no
substantive right," causing it not to operate retroactively)
(internal quotation marks omitted). Furthermore, while
the original FSIA codified only the preexisting
"restrictive theory" of foreign sovereign immunity,
leaving the scope of a sovereign's potential liability
unchanged, see Altmann, 541 U.S. at 694, 124 S.Ct. 2240,
the new terrorism exception authorizes a quantum of
liability-punitive damages-to which foreign sovereigns
were previously immune.
Having failed to distinguish the FSIA terrorism exception
from the Supreme Court's core concerns in Landgraf, the
plaintiffs advance a policy argument transplanted from
Altmann. There the Court explained the "aim of the
presumption [against retroactivity] is to avoid
unnecessary post hoc changes to legal rules on which
parties relied in shaping their primary conduct."541 U.S.
at 696, 124 S.Ct. 2240. In contrast, the plaintiffs urge "the
principal purpose of foreign sovereign immunity ...
reflects current political realities and relationships, and
aims to give foreign states and their instrumentalities
some present 'protection from the inconvenience of suit
as a gesture of comity.' " Id. (quoting Dole Food Co. v.
Patrickson, 538 U.S. 468, 479, 123 S.Ct. 1655, 155
L.Ed.2d 643 (2003)). Because the Congress was
motivated by these "sui generis" concerns of comity in
initially passing the FSIA, id., the plaintiffs contend the
presumption in Landgraf should not apply to a subsequent
FSIA amendment, even if it appears to operate
retroactively.
**228*816That argument misses the central point of
authorizing punitive damages against a state sponsor of
terrorism, viz., to deter terrorism. By its nature, deterrence
attempts to influence foreign sovereigns in "shaping their
primary conduct." Id. And when the law affects a
defendant's past actions, "[ e ]lementary considerations of
fairness dictate that individuals should have an
opportunity to know what the law is and to conform their
conduct accordingly." Landgraf, 511 U.S. at 265, 114
S.Ct. 1483.
This principle applies equally to state sponsors of
terrorism. As the Supreme Court has said, "[e]ven when
the conduct in question is morally reprehensible or illegal,
a degree of unfairness is inherent whenever the law
imposes additional burdens based on conduct that
occurred in the past." Id. at 282 n.35, 114 S.Ct. 1483.
Therefore, without a clear statement of retroactivity,
courts have properly declined to apply statutes
authorizing an award of punitive damages, even for
outrageous conduct. See, e.g., Ditullio v. Boehm, 662 F.3d
1091, 1100 (9th Cir. 2011) (holding that punitive damages
under the Trafficking Victims Protection Act are
unavailable to punish child sex trafficking that occurred
before enactment); Gross v. Weber, 186 F.3d 1089, 1091
(8th Cir. 1999) (holding the same for the Violence
Against Women Act as applied to pre-enactment sexual
abuse). Hence, unlike the grant of jurisdiction in Altmann,
the authorization of punitive damages in § 1605A(c)
cannot be dismissed as a reflection of "current political
realities and relationships" but rather goes to the heart of
the concern in Landgraf about retroactively penalizing
past conduct.
2. Clear statement of retroactive effect
Having concluded that § 1605A(c) operates retroactively,
the next question is whether the Congress has made a
clear statement authorizing punitive damages for past
conduct. We will find that authorization only if the statute
is "so clear that it could sustain only one interpretation."
See Lindh v. Murphy, 521 U.S. 320, 328 n.4, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997). With this in mind, we
agree with the district court that the FSIA contains no
such statement. Owens V, 174 F.Supp.3d at 289.
As a starting point, we look for a clear statement in §
1605A(c), which provides that a designated state sponsor
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431 U.S.App.D.C. 163
of terrorism:
shall be liable ... for personal injury or death caused by
acts described in subsection (a) (1) of that foreign state,
or of an official, employee, or agent of that foreign
state, for which the courts of the United States may
maintain jurisdiction under this section for money
damages. In any such action, damages may include
economic damages, solatium, pain and suffering, and
punitive damages. In any such action, a foreign state
shall be vicariously liable for the acts of its officials,
employees, or agents.
On its face, nothing in the text of § 1605A(c) speaks to
whether punitive damages are available under the federal
cause of action for pre-enactment conduct. Nor does
precedent provide support for retroactivity. Although
Altmann held the grant of jurisdiction in § 1605(a) applies
retroactively (despite lack of a clear statement to that
effect), the authorization of punitive damages under the
current terrorism exception lies in the cause of action
under § 1605A(c), not in the grant of jurisdiction under §
1605A(a).
The plaintiffs contend that§ 1083(c) of the 2008 NDAA,
when combined with the authorization of punitive
damages in § 1605A(c), provides a clear statement of
retroactive effect. As we have seen, supra part IV, both a
converted prior action under *817**229 § 1083(c)(2) and
a related action under§ 1083(c)(3) necessarily arise out of
conduct that occurred before the enactment of the 2008
NDAA, and both provisions allow a plaintiff to proceed
under the federal cause of action in § 1605A(c), which
authorizes punitive damages. Accordingly, the plaintiffs
contend, both § 1083(c)(2) and (c)(3), when read in
conjunction with § 1605A(c), clearly allow a court to
award punitive damages under the federal cause of action
for pre-enactment conduct.
This argument takes one too many a logical leap. Yes, by
allowing a plaintiff to convert an action brought under §
1605(a)(7), § 1083(c)(2) clearly authorizes the federal
cause of action to apply retroactively. This, however, does
not mean that § 1083(c) authorizes the punitive damages
in § 1605A(c) to apply retroactively as well. Cf Roeder v.
Islamic Republic of Iran, 646 F.3d 56, 61-62 (D.C. Cir.
2011) (finding no clear statement that § 1083(c)(3)
abrogated the Algiers Accords simply by allowing
plaintiffs to bring actions under § 1605A related to those
Inversely, if§ 1083(c) did not exist, then one plaintiff's
inability to convert his pending case or to bring a related
action under § 1083(c) would not detract from the
retroactive availability of punitive damages for another
plaintiff if such relief were clearly authorized by the
Congress. At most, Sudan has identified § 1083(c) as a
plausible mechanism through which the Congress could
have authorized punitive damages for past conduct. But
Landgraf demands more, and no clear statement emerges
from the union of§ 1083(c) and § 1605A(c).
There being no clear textual command, the plaintiffs urge
that the purpose of§ 1083(c) supplies the necessary clear
statement of congressional intent. An argument based
solely upon the purpose of a statute can hardly supply a
"clear statement" of any sort. See Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102
L.Ed.2d 493 (1988) ("congressional enactments and
administrative rules will not be construed to have
retroactive effect unless their language requires this
result"). Because an expansion of punitive damages
would operate retroactively by "increas[ing] [Sudan's]
liability for past conduct," the presumption in Landgraf
applies and bars an award of punitive damages for the
embassy bombings, which occurred before the enactment
of the 2008 NDAA. Therefore, we vacate the award of
punitive damages to plaintiffs proceeding under the
federal cause of action.
C. Retroactivity of Punitive Damages Under State
Law
The same principle applies to the awards of punitive
damages to plaintiffs proceeding under state law. Sudan
makes two arguments against the availability of punitive
damages for them. Sudan first contends that § 1605A(c)
provides the sole source for seeking punitive damages
against a foreign sovereign. Sudan rests this view upon §
1606 of the FSIA, which precludes punitive damages
against a sovereign defendant. As we have recognized,
supra p. 808, § 1606, by its terms, applies only to claims
brought under § 1605 and § 1607 of the FSIA. Owens V,
174 F.Supp.3d at 290. Section 1606 therefore has no
bearing upon state law claims brought under the
jurisdictional grant in § 1605A.
formerly dismissed by reason of the Accords). Instead, § If this were the end of the analysis, however, a puzzling
1083( c) operates as a conduit for a plaintiff to access the outcome would arise from our holding that punitive
cause of action under § 1605A(c). If punitive damages damages **230*818 are not available retroactively to
under § 1605A(c) were not available retroactively to any plaintiffs proceeding under the federal cause of action in §
plaintiff (including those who did not make use of § 1605A(c). As we have said, in creating a federal cause of
1083(c)), then nothing in § 1083(c) would change that. action, the Congress sought to end the inconsistencies in
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431 U.S.App.D.C. 163
the "patchwork" pass-through approach of
Cicippio-Puleo. See Leibovitch, 697 F.3d at 567.
Allowing punitive damages for pre-enactment conduct
under state but not federal law would frustrate this intent:
Plaintiffs otherwise eligible for the federal cause of
action, for which punitive damages are unavailable,
would instead press state law claims for punitive
damages, which would effectively perpetuate the
inconsistent outcomes based upon differences in state law
that the Congress sought to end by passing § 1605A.
As it happens, the retroactive authorization of punitive
damages under state law fails for the same reason it does
under the federal cause of action: The authorization of §
1605A, read together with § 1606, lacks a clear statement
of retroactive effect. Without the Landgraf presumption,
the enactment of § 1605A would have lifted the
restriction on punitive damages in § 1606 from state law
claims. If the express authorization of punitive damages
under § 1605A(c) lacks a clear statement of retroactive
effect, then the implicit, backdoor lifting of the
prohibition against punitive damages in § 1606 for state
law claims fares no better. Cf Landgraf, 511 U.S. at
259-60, 114 S.Ct. 1483 (finding that cross-references
between several sections of the Civil Rights Act did not
impliedly make a clear statement of retroactive effect). As
a result, a plaintiff proceeding under either state or federal
law cannot recover punitive damages for conduct
occurring prior to the enactment of § 1605A. Accordingly
we vacate all the awards of punitive damages.
VII. Vacatur Under Rule 60(b)
Finally, Sudan argues the district court abused its
discretion in denying its motions to vacate the default
judgments, invoking three sections of the Rule 60(b): the
judgments are void for lack of subject matter jurisdiction
per§ (b)(4); default was due to "excusable neglect" per§
(b)(l); and relief may be justified for "any other reason"
per § (b)(6). The first jurisdictional ground is
nondiscretionary, Bell Helicopter, 734 F.3d at 1179, and
has been rejected already in the sections on extrajudicial
killing, jurisdictional causation, and the ability of family
members of a victim physically injured by the bombings
to press a claim under § 1605A.
We review the district court's decision to deny vacatur on
the other two grounds for abuse of discretion. Gonzalez,
545 U.S. at 535, 125 S.Ct. 2641 ("Rule 60(b) proceedings
are subject to only limited and deferential appellate
review"). In doing so, we recognize "the district judge,
who is in the best position to discern and assess all the
facts, is vested with a large measure of discretion in
deciding whether to grant a Rule 60(b) motion." Twelve
John Does v. District of Columbia, 841 F.2d 1133, 1138
(D.C. Cir. 1988). Deferential review preserves the
"delicate balance between the sanctity of final judgments
... and the incessant command of a court's conscience that
justice be done in light of all the facts." Good Luck
Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C.
Cir. 1980) (emphasis and internal quotation marks
removed). With respect to Rule 60(b)(l), relief for
excusable neglect "is rare" as "such motions allow district
courts to correct only limited types of substantive errors,"
Hall v. CIA, 437 F.3d 94, 99 (D.C. Cir. 2006), and relief
for "any other reason" under Rule 60(b)(6) is even more
rare, being available only in "extraordinary
circumstances," Ackermann v. United States, 340 U.S.
193, 199, 71 S.Ct. 209, 95 L.Ed. 207 (1950). Factual
determinations supporting the district court's decision
*819**231 are, of course, reviewed only for clear error.
Gates v. Syrian Arab Republic, 646 F.3d 1, 4 (D.C. Cir.
2011).
Sudan, as "the party seeking to invoke Rule 60(b)," bears
"the burden of establishing that its prerequisites are
satisfied." Id. at 5 (internal alterations and quotation
marks removed). As we have said before, "no principle of
sovereign immunity law upsets the parties' respective
burdens under Rule 60(b); nor do oft cited ephemeral
principles of fairness" demand a different result for a
foreign sovereign than for a private litigant. Id. In order to
secure vacatur, therefore, Sudan must show the district
court, in denying its motion for relief, relied upon an
incorrect understanding of the law or a clearly erroneous
fact. Sudan has not met this burden.
A. Excusable Neglect Under Rule 60(b)(l)
We begin with Sudan's claim of excusable neglect, which
the district court addressed in detail. In evaluating a claim
of excusable neglect, a court makes an equitable
determination based upon "the danger of prejudice to the
[non-moving party], the length of the delay and its
potential impact on judicial proceedings, the reason for
the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in
good faith." Pioneer Inv. Servs. Co. v. Brunswick Assocs.,
507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74
(1993). Additionally, a party seeking vacatur must "assert
a potentially meritorious defense." FG Hemisphere
Assocs., LLC v. Democratic Republic of Congo, 447 F.3d
835, 842 (D.C. Cir. 2006).
In its motion, Sudan submitted a three-page declaration
from Maowia Khalid, the Ambassador of Sudan to the
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431 U.S.App.D.C. 163
United States, explaining its failure to participate in much
of the litigation. First, the Ambassador asserted Sudan's
ongoing domestic problems, including natural disasters
and civil war, rendered it unable to appear. Khalid Deel. <j[
4. Second, the Ambassador said a "fundamental lack of
understanding in Sudan about the litigation process in the
United States" accounted its prolonged absence from the
litigation. Id. <j[ 5. The district court soundly rejected both
reasons. On Sudan's domestic troubles, the district court
noted that "[s]ome of that turmoil ... has been of the
Sudanese government's own making," but, regardless of
blame, Sudan could not excuse at least six years of
nonparticipation without sending a single communication
to the court. Owens V, 174 F.Supp.3d at 255. The court
further doubted the credibility of Sudan's alleged
ignorance of U.S. legal procedure. After all, Sudan had
used this excuse to escape an earlier default in the same
litigation, and the "fundamental-ignorance card cannot
convincingly be played a second time." Id. at 256.
Although the district court, in denying Sudan's Rule 60(b)
motion, addressed all the elements of "excusable neglect"
mentioned in Pioneer, on appeal Sudan challenges only
the "reason for the delay" and the "length of the delay."
The district court's unchallenged finding that "vacatur
would pose a real risk of prejudice to the plaintiffs,"
Owens V, 174 F.Supp.3d at 257, makes it difficult to
imagine Sudan could prevail even if it were to succeed on
the two elements it does raise, Pioneer, 507 U.S. at 397,
113 S.Ct. 1489 (affirming a holding of excusable neglect
when the "petitioner does not challenge the findings made
below concerning . . . the absence of any danger of
prejudice" to him), but we consider its arguments
nonetheless.
Preliminarily, Sudan also contends the district court
"ignored" the "policy favoring vacatur under Rule 60(b )"
as it applies to a foreign sovereign. Sudan then claims
error in the district court purportedly blaming Sudan for
the circumstances that **232*820 prompted its default.
Finally, Sudan faults the district court's comparison of the
instant case to FG Hemisphere , in which this court
vacated a default judgment against the Democratic
Republic of Congo (DRC).
On the first point, Sudan correctly notes that precedent in
this Circuit supports a liberal application of Rule 60(b)(l)
to default judgments. See Jackson v. Beech, 636 F.2d 831,
836 (D.C. Cir. 1980). This stems from the general policy
favoring adjudication on the merits. Id. ; Foman v. Davis,
371 U.S. 178, 181-82, 83 S.Ct. 227, 9 L.Ed.2d 222
(1962). The policy has particular force with respect to a
defaulting sovereign because "[i]ntolerant adherence to
default judgments against foreign states could adversely
affect this nation's relations with other nations and
undermine the State Department's continuing efforts to
encourage foreign sovereigns generally to resolve
disputes within the United States' legal framework." FG
Hemisphere, 447 F.3d at 838-39 (quoting Practical
Concepts, 811 F.2d at 1551 n.19). Further, we have noted,
"[ w ]hen a defendant foreign state has appeared and
asserts legal defenses, albeit after a default judgment has
been entered, it is important ... , if possible, that the
dispute be resolved on the basis of [ ] all relevant legal
arguments." Practical Concepts, 811 F.2d at 1552.
For these reasons, the U.S. Government on many
occasions has submitted an amicus brief urging vacatur of
a default judgment against a foreign sovereign. See, e.g.,
id. ; FG Hemisphere, 447 F.3d at 838; Gregorian v.
Izvestia, 871 F.2d 1515, 1518 (9th Cir. 1989); Jackson v.
People's Republic of China, 794 F.2d 1490, 1495 (11th
Cir. 1986). In this case, however, we think it significant
that the Government has not taken a position on Sudan's
motion to vacate. Indeed, with only two factually unique
exceptions, see Beaty, 556 U.S. at 855, 129 S.Ct. 2183
and Roeder, 646 F.3d at 56, the Government has not
weighed in on behalf of a defendant state sponsor of
terrorism. Cf Doe v. Exxon Mobil Corp., 473 F.3d 345,
360 (D.C. Cir. 2007) (noting that "courts give deference
when the Executive reasonably explains that
adjudication of a particular civil lawsuit would adversely
affect the foreign policy interests of the United States").
Absent an expressed governmental concern with the
liability of a foreign sovereign, the general policy
favoring vacatur, by itself, cannot control the resolution of
Sudan's Rule 60(b) motion. After all, the FSIA expressly
authorizes default judgments against absent sovereigns.
See28 U.S.C. § 1608(e). If policy considerations alone
made vacatur of judgments against foreign sovereigns
under Rule 60(b) near-automatic, then the general policy
favoring vacatur would render the specific authorization
of default judgments in the FSIA a nullity. A district court
would abuse its discretion if it were simply to apply the
general policy, as Sudan asks us to do now, without
considering the specific facts at hand. See FG
Hemisphere, 447 F.3d at 838-42 (noting the general
policy opposing vacatur but considering the Pioneer
factors). Considering those facts, we see why the district
court said that "shouldering [Sudan's] burden is a
Herculean task." Owens V, 174 F.Supp.3d at 254. Indeed,
if we were to vacate the default judgment in this case,
then we could not expect any sovereign to participate in
litigation rather than wait for a default judgment, move to
vacate it under Rule 60(b), appeal if necessary, and then
reenter the litigation to contest the merits, having long
delayed its day of reckoning. Cf H. F. Livermore Corp. v.
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431 U.S.App.D.C. 163
Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691
(D.C. Cir. 1970) (approving of default judgments "when
the adversary process has been halted because of an
essentially unresponsive party" in which case "the
diligent party must be **233*821 protected lest he be
faced with interminable delay and continued uncertainty
as to his rights").
Sudan's own actions place it well outside the general
policy favoring vacatur. In the cases it cites, relief was
justified because the defendant had no notice of the
default and promptly responded once made aware of the
judgment. See Bridoux v. E. Air Lines, 214 F.2d 207, 209
(D.C. Cir. 1954); FG Hemisphere, 447 F.3d at 839. In
contrast, Sudan knew of the Owens action, twice obtained
sophisticated legal counsel in 2004, and fully participated
in the litigation before absenting itself in 2005. In another
case involving a foreign sovereign, there was no abuse of
discretion in denying vacatur because the defendant had
"received actual or constructive notice of the filing of the
action and failed to answer" or to provide a good-faith
reason for its unresponsiveness. See Meadows v.
Dominican Republic, 817 F.2d 517, 521 (9th Cir. 1987).
Moreover, unlike the foreign sovereigns in some cases
vacating default judgments, see, e.g., Gregorian, 871 F.2d
at 1525; Jackson, 794 F.2d at 1495-96, Sudan cannot
claim to have defaulted in the reasonable belief that it
enjoyed sovereign immunity. Several decisions of the
district court and this court served on Sudan suggested the
evidence proffered by the Owens plaintiffs could meet or
met their burden of production to establish the jurisdiction
of the court.9 Even when served with the district court's
2011 opinion on liability, which definitively established
Sudan's lack of immunity, Sudan let three years pass
before filing its motion to vacate. For these reasons,
Sudan's lack of diligence in pursuing its Rule 60(b)
motion weighs heavily against vacatur. Cf Reinsurance
Co. of Am. v. Administratia Asigurarilor de Stat, 902 F.2d
1275, 1276, 1278 (7th Cir. 1990) (affirming denial of
Rule 60(b) motion made by a state-owned insurance
company for failure to "demonstrate the diligence
necessary" to vacate a default judgment).
Furthermore, this is not the first time Sudan has sought to
vacate its default or default judgment. In May 2003 the
district court entered a default against Sudan for failure to
appear. Ten months later, Sudan secured counsel and
moved for vacatur under Rule 55(c), which the court
granted based upon the very "presumption against an
entry of default judgment against a foreign state" that
Sudan claims the court ignored in 2016. Owens I, 374
F.Supp.2d at 9, 10 n.5. But the presumption against a
default judgment is just that-a presumption. The
rationale for leniency is necessarily weaker when a
defendant seeks to excuse its second default. See
Flanagan, 190 F.Supp.3d at 158 (noting, as well, Sudan's
prior default in Rux v. Republic of Sudan, No.
2:04-cv-0428, 2005 WL 2086202, at *2-3, *12-13 (E.D.
Va. Aug. 26, 2005)). A double-defaulting sovereign also
loses the ability to assert certain "reasons for the delay,"
including ignorance of the law and a reasonable belief in
its own immunity. It is still more difficult to show "good
faith" by a defendant that has walked away a second time
without so much as a fare thee well. Hence, the general
policy favoring relief from default judgments is not
enough to overcome Sudan's double default in this case.10
**234*822 Finally, it bears mentioning that the district
court and now this court have afforded Sudan, as a
foreign sovereign, substantial protection against the harsh
consequences of a default judgment. Notwithstanding
Sudan's failure to participate, the district court assessed
whether the plaintiffs' evidence was satisfactory, once to
prevail on the merits and twice to establish jurisdiction.
See Owens IV, 826 F.Supp.2d at 139-46 (applying 28
U.S.C. § 1608(e)); Owens V, 174 F.Supp.3d at 275-80.
Furthermore, the district court ( and now this court de
novo) reviewed Sudan's jurisdictional arguments pursuant
to its Rule 60(b)(4) motion. We have also exercised our
discretion to consider several of Sudan's nonjurisdictional
objections, even though Sudan forfeited these arguments
by defaulting. We even granted Sudan relief from
punitive damages despite its failure timely to object to
these awards in the district court. Therefore, Sudan cannot
complain "the dispute [has not been] resolved on the basis
of ... all relevant legal arguments." See Practical
Concepts, 811 F.2d at 1552.
Beyond relying upon the general policy in favor of
vacatur, Sudan challenges the reasoning behind the
district court's decision. In particular, Sudan faults the
district court for holding it responsible for its domestic
troubles, contending a court may not consider "the
question of blame" in analyzing excusable neglect. Sudan
is twice wrong. Not only have courts consistently
recognized that a defendant's "culpable conduct" may
justify denying it relief under Rule 60(b)(l), see Mfrs.'
Indus. Relations Ass'n v. E. Akron Casting Co., 58 F.3d
204, 206 (6th Cir. 1995) (inquiring "[w]hether culpable
conduct of the defendant led to the default"); Gregorian,
871 F.2d at 1523; Info. Sys. & Networks Corp. v. United
States, 994 F.2d 792, 795 (Fed. Cir. 1993), but the district
court expressly based its decision upon Sudan's
unresponsiveness, not its blameworthiness; "setting aside
the question of blame," it said:
Domestic turmoil would surely have justified requests
by Sudan for extensions of time in which to respond to
the plaintiffs' filings. It would have also probably led
WEST AW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 43
Annex 367
Owens v. Republic of Sudan, 864 F.3d 751 (2017)
431 U.S.App.D.C. 163
the Court to forgive late filings. And perhaps it would
have even justified a blanket stay of these cases. But
Sudan was not merely a haphazard, inconsistent, or
sluggish litigant during the years in question-it was a
complete and utter nonlitigant. Sudan never sought
additional time or to pause any of these cases in light of
troubles at home. Sudan never even advised the Court
of those troubles at the time they were allegedly
preventing Sudan's participation-not through formal
filings, and not through any letters or other mode of
communication with the Court. The idea that the
relevant Sudanese officials could not find the
opportunity over a period of years to send so much as a
single letter or email communicating Sudan's desire but
inability to participate in these cases is, quite literally,
incredible.
Owens V, 174 F.Supp.3d at 256. Therefore, we find no
abuse of discretion in the district court's brief reference to
the Sudan's **235*823 possible responsibility for its
domestic turmoil.
Sudan also objects to the district court's discussion of its
unresponsiveness, arguing the court demonstrated "a lack
of appreciation of the operational realities of a least
developed nation in turmoil." But the one conclusory
paragraph in the three-page declaration of its Ambassador
to the United States that Sudan cites as evidence for this
proposition does not show it was incapable of maintaining
any communication with the district court. Indeed, Sudan
participated in the litigation during its civil war and while
negotiating a peace treaty bringing that war to a close. See
UNMIS Background, United Nations Mission in the
Sudan,
http://www.un.org/en/peacekeeping/rnissions/past/unrnis/
background.shtml (last visited July 19, 2017). This shows
Sudan could participate in legal proceedings despite
difficult domestic circumstances. Without record evidence
supporting Sudan's complete inability to participate, the
district court did not abuse its discretion in holding Sudan
failed to carry its burden of proving excusable neglect.
As a final argument under Rule 60(b)(l), Sudan faults the
district court's comparison of this case to FG
Hemisphere. In FG Hemisphere we vacated a default
judgment against the Democratic Republic of Congo
(DRC) rendered under the FSIA exception for
commercial activity, § 1605(a)(2). 447 F.3d at 843.
Sudan's reliance upon FG Hemisphere is unsurprising as
there we noted the DRC "was plainly hampered by its
devastating civil war" which justified, in part, its delayed
response. Id. at 841 . But the outcome in FG Hemisphere
did not turn solely, or even primarily, upon the domestic
turmoil in the DRC. Problems with notice and service, not
internal strife, principally excused the DRC's default. In
that case, the defendant sovereign was first notified that
its diplomatic properties were in jeopardy when it was
served with a motion to execute a default judgment a
mere six days before a response was due. Id. at 839-40.
The plaintiffs' failure to translate the motion from English
into French, the official language of the DRC, "virtually
guaranteed the DRC's inability to file a timely response."
Id. That the DRC was then engaged in a "devastating civil
war" merely diminished its "capacity ... for [the] swift and
efficient handling of ... English-language materials"; it did
not ultimately prevent the DRC from responding to the
motion, which it did shortly after receipt. Id. at 840-41.
Unlike the DRC in FG Hemisphere , Sudan had notice of
the litigation from the time it was first sued. The district
court's 2011 opinion on liability was translated into
Arabic, Sudan's national language, and delivered through
diplomatic channels. Sudan cannot, and does not,
complain about defects in notice or service of process. See
Owens V, 174 F.Supp.3d at 255 (noting that "Sudan's
council conceded, 'there's no dispute about service being
proper'").
Nor can Sudan claim to be surprised by the suits, as was
the defendant in FG Hemisphere. Sudan actively
participated in the litigation from February 2004 until
January 2005. Even after disengaging from the case,
Sudan contacted its counsel for a status update in
September 2008. If Sudan indeed needed to divert "all
[its] meager legal and diplomatic personnel" to the
"cession of south Sudan," as its Ambassador now
suggests, then it could have communicated this
affirmative decision to the court, along with a request to
stay the proceedings. In light of this history, it was not
unreasonable for the district court to demand something
more than a conclusory assertion without virtually any
record evidence of Sudan's inability to participate in the
litigation.
**236*824 Also, as the district court noted, the length of
delay in FG Hemisphere pales in comparison to Sudan's
absence in this case. The DRC initiated efforts to secure
counsel within one day of receiving notice of the motion
to execute. 447 F.3d at 838. Within two months, its
counsel filed motions to vacate the default judgment and
to stay its execution. Id. In contrast, Sudan filed its
motions to vacate the judgments 17 months after service
of the complaint in Opati, the last of the consolidated
cases, 40 months after the district court's 2011 opinion on
liability, and 53 months after the evidentiary hearing that
Sudan did not attend. Indeed, Sudan ceased regular
communication with counsel in the Owens action nearly
eight years before filing its present motions. Cf Smith v.
District of Columbia, 430 F.3d 450, 456 n.5 (D.C. Cir.
WEST AW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 44
Annex 367
Owens v. Republic of Sudan, 864 F.3d 751 (2017)
431 U.S.App.D.C. 163
2005) (noting that delay of "well over a year" militated
against excusable neglect). By defaulting, then appearing,
then defaulting again, Sudan delayed this case for years
beyond its likely end had it simply failed to appear at all.
These affirmative actions extended the delay and make
Sudan's second default even less excusable than its first.
We therefore find no error in the district court's
unfavorable comparison of Sudan's default to that of the
DRC in FG Hemisphere. In sum, none of Sudan's
arguments shows the district court abused its discretion in
failing to vacate the default judgments for "excusable
neglect."
B. Extraordinary Circumstances Under Rule
60(b)(6)
Sudan also challenges the district court's denial of its
motion under Rule 60(b)(6), claiming its failure to appear
was justified by "extraordinary circumstances."11 Because
Rule 60(b)(l) contains a one-year filing deadline for
claims of "excusable neglect," which Sudan missed with
respect to the Mwila and Khaliq judgments, Sudan's Rule
60(b)(6) motions are the only way it may obtain vacatur
of those default judgments.
Perhaps recognizing this, Sudan rephrased its earlier
arguments asserting "excusable neglect" as requests for
relief from those default judgments under Rule 60(b)(6).
As with the other cases, the declaration of Ambassador
Khalid figures prominently in Sudan's Mwila and Khaliq
motions. This gets Sudan nowhere. In order **237*825 to
receive relief under Rule 60(b)(6), a party must show
"extraordinary circumstances" justifying vacatur.
Gonzalez, 545 U.S. at 534, 125 S.Ct. 2641. As the
Supreme Court has explained, the grounds for vacatur
under Rule 60(b)(l) and(b)(6) are "mutually exclusive."
Pioneer, 507 U.S. at 393, 113 S.Ct. 1489. Therefore, "a
party who failed to take timely action due to 'excusable
neglect' may not seek relief more than a year after the
judgment by resorting to subsection (6)." Id.
The district court acknowledged this distinction and
denied Sudan's motion under Rule 60(b)(6) as merely a
"rehash of Sudan's Rule 60(b)(l) argument for excusable
Footnotes
neglect." Owens V, 174 F.Supp.3d at 258. Instead of
grappling with the district court's actual decision, Sudan
takes issue with the court's reference to Ungar v.
Palestine Liberation Organization, 599 F.3d 79 (1st Cir.
2010), in which the First Circuit held that a sovereign's
willful default did not per se preclude vacatur. Id. at
86-87. The district court was understandably puzzled by
Sudan's fleeting reference to Ungar in light of its
assertions that its default was involuntary. If Sudan's
default was intentional, as in Ungar, the court noted, then
relief under Rule 60(b)(l) would be unavailable. Owens
V, 174 F.Supp.3d at 258. But these musings were not the
basis of the district court's decision and therefore cannot
be an abuse of discretion.
Undeterred, Sudan now argues Ungar demands vacatur
when there would be "political ramifications[ ] and [a]
potential effect on international relations" from a default
judgment, as Sudan claims there would be in this case.
Ungar, 599 F.3d at 86-87. In its view, these political
considerations supply the "extraordinary circumstances"
needed to vacate a default judgment under Rule 60(b)(6).
Sudan failed to raise this argument before the district
court, and it is therefore forfeit on appeal. Accordingly,
we affirm the district court's denial of vacatur under Rule
60(b).
*****
To conclude, we (1) affirm the district court's findings of
jurisdiction with respect to all plaintiffs and all claims; (2)
affirm the district court's denial of vacatur; (3) vacate all
awards of punitive damages; and (4) certify a question of
state law-whether a plaintiff must be present at the scene
of a terrorist bombing in order to recover for IIED-to the
District of Columbia Court of Appeals.
So ordered.
All Citations
864 F.3d 751, 431 U.S.App.D.C. 163
As we discuss infra, the Khaliq plaintiffs later asserted claims under § 1605A.
2 See, e.g., Salazar v. Islamic Republic of Iran, 370 F.Supp.2d 105, 113 (D.D.C. 2005) (applying the terrorism exception
to the U.S. embassy bombing in Beirut); Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46, 61 (D.D.C. 2003)
(U.S. Marine barracks in Beirut), approved of by627 F.3d 1117, 1122-23 (9th Cir. 201 0); Wagner v. Islamic Republic ol
Iran, 172 F.Supp.2d 128, 133 (D.D.C. 2001) (U.S. embassy annex in East Beirut); Ben-Rafael v. Islamic Republic ol
WEST AW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 45
Annex 367
Owens v. Republic of Sudan, 864 F.3d 751 (2017)
431 U.S.App.D.C. 163
Iran, 540 F.Supp.2d 39, 53 (D.D.C. 2008) (Israeli embassy in Buenos Aires); Blais v. Islamic Republic of Iran, 459
F.Supp.2d 40, 53 (D.D.C. 2006) (Khobar Towers military residence in Saudi Arabia); Rux v. Republic of Sudan, No.
2:04-cv-428, 2005 WL 2086202, at *13 (E.D. Va. Aug. 26, 2005) (USS Cole), aff'd in relevant part, 461 F.3d 461 (4th
Cir. 2006); see also Owens II, 412 F.Supp.2d at 106 n.11 ("[T]he Sudan defendants do not dispute that the embassy
bombings constitute an act of extrajudicial killing"), aff'd, 531 F.3d 884.
3 Sudan did put some evidence into the record before absenting itself from the litigation. For its 2004 motion to dismiss,
Sudan obtained statements disputing its support for the 1998 embassy bombings from Timothy Carney, the U.S.
Ambassador to Sudan from 1995 to 1997, and from John Cloonan, a FBI Special Agent charged with building the
conspiracy case against Bin Laden during the 1990s. The plaintiffs moved for leave to depose Carney and Cloonan,
but the FBI and the Department of State successfully opposed the motion, arguing the request did not comply with
each agency's so-called Touhy regulations for obtaining permission to solicit testimony from former government
officials, see22 C.F.R. §§ 172.1 -172.9; 28 C.F.R. §§ 16.21 -16.29. The agencies also noted that Sudan had not
properly sought approval to take the declarations.
Sudan then ceased participating in the litigation. Although Sudan does not now contend the declarations were
admissible, see Owens V, 174 F.Supp.3d at 276 n.16, at oral argument it complained the court unfairly considered the
plaintiffs' supposedly inadmissible evidence but not the Carney and Cloonan declarations. The matter stands precisely
as the district court left it in 2005. Sudan likely violated the agencies' Touhy regulations in obtaining the declarations in
2004. Allowing it to use the declarations on appeal, without affording the plaintiffs an opportunity to seek depositions
from Carney and Cloonan in compliance with the regulations, would work a substantial injustice.
4 In a supplemental filing, Sudan compares these reports to excerpts on an Israeli governmental website in Gilmore that
we excluded as inadmissible hearsay outside the exception for public records. But Gilmore turned upon the plaintiffs'
failure to establish a foundation for admissibility; they "rested on a bare, one-sentence assertion that the web pages
were admissible under Rule 803(8)" and gave no "further explication of how the pages conveyed 'factual findings from
a legally authorized investigation.'" 843 F.3d at 969-70. The webpages themselves "offer[ed] no information explaining
who made the findings or how they were made." Id. at 969.
5 Sudan also objects to the admission of the recorded testimony of Jamal al Fadl at the Bin Laden criminal trial,
contending it is inadmissible hearsay. We agree to the extent that al Fadl's prior testimony is not admissible as "former
testimony" under the hearsay exception in Rule 804(b)(1) because it was not "offered against a party who had ... an
opportunity and similar motive to develop it by" cross-examination in the prior criminal case.
The district court held, and the plaintiffs argue on appeal, that Sudan's inability to cross-examine al Fadl was irrelevant
in a non-adversarial evidentiary hearing. After all, they note, courts have admitted sworn affidavits in § 1608(e)
hearings in previous FSIA cases. Owens V, 174 F.Supp.3d at 280-81 & n.18 (citing Antoine v. Atlas Turner, Inc., 66
F.3d 105, 111 (6th Cir. 1995) and Kim, 774 F.3d at 1049-51 ). But in each case cited, the out-of-court declarant was at
least potentially available to testify in court, should the need arise. Plaintiffs here have made no such showing
regarding al Fadl, who is in the witness protection program. For this reason, we hesitate to equate affidavits prepared
for a FSIA hearing with former trial testimony recorded for a wholly separate purpose. We, however, need not decide
whether al Fadl's prior trial testimony is otherwise admissible because sufficient, admissible evidence sustains the
district court's findings of jurisdiction in this case.
6 Several district courts have applied this exception to claims for emotional distress under the federal cause of action in
the new FSIA terrorism exception. See, e.g., Estate of Heiser v. Islamic Republic of Iran, 659 F.Supp.2d 20, 26-27
(D.D.C. 2009) ("All acts of terrorism are by their very definition extreme and outrageous and intended to cause the
highest degree of emotional distress, literally, terror, in their targeted audience") (quoting Stethem v. Islamic Republic
of Iran, 201 F.Supp.2d 78, 89 (D.D.C. 2002)).
7 These circumstances distinguish the review of retroactive punitive damages from the review of Sudan's forfeited
limitations defense. See Musacchio, 136 S.Ct. at 717 ("[A] limitations bar ... is a defense that becomes part of a case
only if the defendant presses it in the district court"); Day, 547 U.S. at 202, 126 S.Ct. 1675 ("Ordinarily in civil litigation,
a statutory time limitation is forfeited if not raised in a defendant's answer or in an amendment thereto").
8 The circumstances of this case also distinguish it from Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 108
S.Ct. 1645, 100 L.Ed.2d 62 (1988) in which the Supreme Court declined to hear a challenge to a state court's award of
punitive damages that the appellant had not raised in the state court. Here, although Sudan did not object to punitive
damages before the entry of final judgment, it raised the matter in its post-trial motions for vacatur. Unlike in Crenshaw,
the district court considered these untimely objections and considered their merits before denying vacatur. For this
reason, we have a "properly developed record on appeal" and "a reasoned opinion on the merits" with which to
evaluate this pure question of law. Id. at 79-80, 108 S.Ct. 1645. Also unlike Crenshaw, this case does not involve
considerations of "comity to the States" as it arises under federal law, id. at 79, 108 S.Ct. 1645, and any concern about
WEST AW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 46
Annex 367
Owens v. Republic of Sudan, 864 F.3d 751 (2017)
431 U.S.App.D.C. 163
relations between nations cuts in favor of, rather than against, exercising discretionary review.
9 See Owens IV, 826 F.Supp.2d at 150 ("Plaintiffs have satisfied their burden under 28 U.S.C. § 1608(e) to show ...
Sudan ... provided material support and resources ... for acts of terrorism"); Owens I, 374 F.Supp.2d at 17-18 (noting
the plaintiffs "will have no trouble in making [the] allegation[s]" necessary to "survive a motion to dismiss") (quoting
Price, 294 F.3d at 93); Owens II, 412 F.Supp.2d at 108-09, 115 (holding the plaintiffs' claims, accepted as true,
satisfied the pleading standards of the FSIA).
10 In a supplemental filing, Sudan points to our recent decision in Gilmore, in which we held the district court did not
abuse its discretion by vacating two defaults entered against the Palestinian Authority in light of the defendant's
willingness to participate in subsequent discovery and litigation. 843 F.3d at 995-96. In doing so, Sudan notes, we
referenced "the federal policy favoring trial over default judgment." Id. at 995 (quoting Whelan v. Abell, 48 F.3d 1247,
1258 (D.C. Cir. 1995)). But Gilmore dealt with vacatur of a default under Rule 55(c); the less-demanding "good cause"
standard for vacating a default under that rule "frees a court from the restraints of Rule 60(b)" and "entrusts the
determination to the discretion of the court." Id. at 996 (quoting 1 0A Charles A. Wright, Arthur R. Miller & Mary K. Kane,
Federal Practice and Procedure§ 2694 (3d ed. 2016)).
11 In addition, Sudan moves to vacate the judgments in favor of foreign family members and the awards of punitive
damages under Rule 60(b)(6), claiming the district court's errors of law on these questions also provide "extraordinary
circumstances" supporting vacatur. We have addressed these nonjurisdictional matters separately in the preceding
sections. Although a "dispute over the proper interpretation of a statute," by itself, does not likely justify relief under
Rule 60(b)(6), Carter v. Watkins, 995 F.2d 305 (D.C. Cir. 1993) (per curiam) (table); cf. Ctr. for Nuclear Responsibility,
Inc. v. U.S. Nuclear Regulatory Comm'n, 781 F.2d 935, 939-40 (D.C. Cir. 1986) (discussing a Circuit split on the matter
and expressing doubt on whether Rule 60(b) should be used to correct legal errors), we have reviewed and rejected
each of Sudan's contentions on direct appeal from the default judgments due to the size of the awards in question,
underlying constitutional concerns about retroactive liability for punitive damages, and the likelihood of the purely legal
issues here recurring in our district court. Hence, there is no need to evaluate whether these claims present
"extraordinary circumstances" under Rule 60(b)(6). In contrast to these purely legal arguments, which require no
further factual development, see Roosevelt, 958 F.2d at 419 & n.5, we see far less reason to give Sudan an
opportunity to relitigate the factual record by vacating the default judgments, especially considering its failure to
participate in the district court and our independent review of the evidence showing material support and jurisdictional
causation. See Practical Concepts, 811 F.2d at 1552 ('When a defendant foreign state has appeared and asserts legal
defenses, albeit after a default judgment has been entered, it is important ... that the dispute be resolved on the basis
of ... all relevant legal arguments") (emphases added).
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government
Works.
WEST AW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 47
Annex 367

ANNEX368

Case 1:03-cv-09848-GBD-SN Document 276 Filed 05/19/11 Page 1 of 3
Ex.No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
LIST OF EXHIBITS
PLAINTIFFS' FIRST MEMORANDUM OF LAW IN SUPPORT OF MOTION
FOR ENTRY OF JUDGMENT BY DEFAULT AGAINST SOVEREIGN DEFENDANTS
Date Description
Excerpts from the FINAL REPORT OF THE NATIONAL COMMISSION ON
July 2004
TERRORIST ATTACKS UPON THE UNITED STATES ("9/11 REPORT"), pp.
240-41; 10-16;47-48;57;60-61;65-69; 109; 145; 147; 149-150; 153-
56; 160-69;214;225;242-46;248;252;254-77;384;476;494;522
5/10/10
2nd Affidavit of Kenneth R. Timmerman, investigative journalist
(redacted)
6/8/10 Affidavit of Daniel L. Byman, former 9/11 Commission staff member
6/7/10 Affidavit of Janice L. Kephart, former 9/11 Commission staff member
7/29/10
Affidavit of Dietrich L. Snell, former 9/11 Commission staff member
and team leader
3/26/10
Affidavit of Clare M. Lopez and Dr. Bruce D. Tefft, former CIA case
officers (redacted)
4/8/10
Affidavit of Dr. Ronen Bergman, Israeli military and intelligence
analyst (redacted)
6/25/10 Affidavit of Dr. Patrick L. Clawson, PhD, noted Iran scholar (redacted)
3/16/10 Declaration of Jean-Louis Bruguiere, French former investigative Jurist
11/1/10
Affidavit of Edgar A. Adamson, former chief of U.S. national bureau
of INTERPOL
6/3/10 Testimony of Abolhassan Banisadr, former president oflran
~ U.S. Department of State, State Sponsors of Terrorism,
www.state.gov/s/ct/c14151.htm
1980-2009
U.S. Department of State Reports, Patterns of Global Terrorism I
Country Reports on Terrorism, 1980-2009 (excerpts re: Iran)
U.S. Department of State Fact Sheet:
8/14/96 "Usama Bin Laden: Islamic Extremist Financier"
http://usembassy-israeLorg.il/publish/press/state/archive/august/sd4 8-15 .htm
U.S. Embassy (Islamabad), Cable (unclassified): "Afghanistan: Taliban
11/96 Deny They Are Sheltering HUA Militants, Usama Bin Laden
http:/ /www.gwu.edu/-nsarchiv/NSAEBB/NSAEBB227 /18.pdf
U.S. Embassy (Islamabad), Cable, "Afghanistan: Observers Report
7/97 Uptick in Support for Anti-Taliban Factions by Iran"
http://www.gwu.edu/-nsarchiv/NSAEBB/NSAEBB97/ta123.pdf
Ft Note #125
Annex 368
Case 1:03-cv-09848-GBD-SN Document 276 Filed 05/19/11 Page 2 of 3
U.S. Department of State, cable (unclassified):
17 12/8/97 "Afghanistan: Meeting with the Taliban," Confidential
www.gwu.edu/-nsarchiv/NSAEBB/NSAEBB97/tal24.pdf
18 11/23/01
German Bundeskriminalamt (BKA) documents re: Ramzi Binalshibh's
February 2001 trip to Iran
Confession of Khalid Sheikh Muhammad
19 3/10/07 Available online at DoD website:
http://www.defense.gov/news/transcript isn10024.pdf
20 3/15/07
Robert Baer, "Why KSM's Confession Rings False,"
TIME magazine
21 {omitted}
WASHINGTON POST, "N.Y. Bomb Plotters Sentenced to Long Terms"
22 1/18/1996 http://www.washingtonpost.com/wpdyn/
content/article/2OO7 /10/16/ AR2OO71O16OO8O4 _pf.html
23 undated Detainee Biographies, Office of the Director of National Intelligence
http://www.odni.gov/announcements/content/DetaineeBiographies.pdf
CIA Press Release re: Robert C. Ames
24 1997 https://www.cia.gov/news-information/press-releases-statements/press-re…-
1997-1/trailblazers.html
Excerpts from 9/11 AND TERRORIST TRAVEL, A Staff Report of the
25 8/22/2004 National Commission on Terrorist Attacks Upon The United States
("9/11 AND TERRORIST TRAVEL"), pp. 61, 65-67, 130, 145-46
26 {omitted}
27 7/5/07
Sisso v. Islamic Republic of Iran, No. 05-0394, 2007 WL 2007582,
2007 U.S. Dist. LEXIS 48627 (D.D.C. July 5, 2007)
28 2000 Higgins v. Islamic Republic of Iran, No. 1:99CVOO377 (D.D.C. 2000)
29 3/17/02 Kenneth R. Timmerman, "The Truth about Iran," http://www.iran-pressservice.
com/articles 2002/Mar 2002/khalilzad iran 17302.htm - - - -
30 1/16/09
U.S. Department of Treasury designation
(same as Ex. B-15 to Timmerman 2nd affidavit)
31 10/20/00
Plea allocution, USA v. Ali Mohamed, S(7) 98 Cr. 1023 (LBS)
(S.D.N.Y. October 20, 2000), at p. 28
9/7/96 "Banisadr Fingers Top Leadership in Murders," The Iran Brief, Sept. 7,
32 1996; "Double-wiring of the Forouhar Residence Led to the
2/2/99 Murderers," by Safa Haeri, Iran Press Service, February 2, 1999.
33 5/2/11 NEW YORK TIMES, "Behind the Hunt for Bin Laden,"
http://www.nytimes.com/2011/05/03/world/asia/03intel.html? r= 1 &hp
Annex 368
Case 1:03-cv-09848-GBD-SN Document 276 Filed 05/19/11 Page 3 of 3
"US Prosecutor Files Hariri Slaying Indictment", Newsmax
http://www.newsmaxworld.com/ global_ talk/Lebanon_ Hariri_ Tribunal/
2011/01/17/371628.html
34 1/17/2011
"UN Indicts Hezbollah Chiefs in Hariri Assasination", Homeland
Security News Wire, http://www.homelandsecuritynewswire.com/unindicts-
hezbollah-chiefs-hariri-assassination
"UN Tribunal to link Iran's Khamenei Hariri murder", Jerusalem Post
http://www.jpost.com/LandedPages/PrintArticle.aspx?id=203689#
35 3/4/11
Kenneth Katzman, Congressional Research Service, "Iran: Concerns
and Policy Responses"
36 8/8/2008
Congressional Research Service, "Suits Against Terrorist States by
Victims of Terrorism"
37 1/21/2011 Tony Blair at Chilcot Inquiry, THE TELEGRAPH
Annex 368

ANNEX369

Case 1:03-cv-09848-GBD-SN Document 316 Filed 10/03/12 Page 1 of 7
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------X
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 :
--------------------------------------- X
This Document Relates to
Havlish v. bin Laden,
03 Civ. 9848 (GBD) (FM)
GEORGE B. DANIELS, District Judge:
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE F-IL_E_D_:/ -ll---3-----(. -~-
MEMORANDUM DECISION
AND ORDER
03 MDL 1570 (GBD)(FM)
The plaintiffs in this multi-district litigation ("MDL") seek monetary damages from
defendants who are liable for the physical destruction, death, and injuries suffered as a result of
the terrorist attacks of September 11, 2001 ("September 11th Attacks"). On December 22, 2011,
default judgment was entered on behalf of the plaintiffs in the Havlish action ("Plaintiffs"),
against (a) certain sovereign defendants, including the Islamic Republic of Iran, Ayatollah Ali
Hoseini K.hamenei, Hezbollah, and other Iranian individuals and entities ("Sovereign
Defendants"); and (b) certain non-sovereign defendants, including Osama bin laden, the Taliban,
and al Qaeda (''Non-Sovereign Defendants") (collectively, the "Defendants"). See Docket Entry
No. 2516. This Court referred the matter to Magistrate Judge Frank Maas for an inquest on
damages.
Magistrate Judge Maas issued a Report and Recommendation ("Report") recommending
that Plaintiffs collectively be awarded damages in the amount of $6,048,513,805, plus
prejudgment interest.
Annex 369
Case 1:03-cv-09848-GBD-SN Document 316 Filed 10/03/12 Page 2 of 7
The Court may accept, reject or modify, in whole or in part, the findings and
recommendations set forth within the Report. 28 U.S.C. § 636(b)(l). When there are objections
to the Report, the Court must make a de nova determination of those portions of the Report to
which objections are made. Id.; see also Rivera v. Barnhart, 432 F.Supp. 2d 271,273 (S.D.N.Y.
2006). The district judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(l)(c). It is not
required, however, that the Court conduct a de nova hearing on the matter. See United States v.
Raddatz, 447 U.S. 667, 676 (1980). Rather, it is sufficient that the Court "arrive at its own,
independent conclusions" regarding those portions to which objections were made. Nelson v.
Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y.1985) (quoting Hernandez v. Estelle, 711 F.2d 619,
620 (5th Cir.1983)). When no objections to a Report are made, the Court may adopt the Report
if "there is no clear error on the face of the record." Adee Motor Cars, LLC v. Amato, 388
F.Supp. 2d 250,253 (S.D.N.Y.2005) (citation omitted). In his report, Magistrate Judge Maas
advised the parties that failure to file timely objections to the Report would constitute a waiver of
those objections. See 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b). No party objected to the
Report. As there is no clear error on the face of the record, this Court adopts the Report in its
entirety.
Sovereign Defendants
Magistrate Judge Maas properly determined that Plaintiffs may recover for "economic
damages, solatium, pain and suffering, and punitive damages" in an action under Section 1605A.
28 U.S.C. § 1605A(c)(4). In such an action, the "estates of those who [died] can recover
economic losses stemming from the wrongful death of the decedent; family members can
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recover solatium for their emotional injury; and all plaintiffs can recover punitive damages."
Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 83 (D.D.C. 2010).
Magistrate Judge Maas properly determined that economic damages totaling
$394,277,884, as broken down in Appendix 1 of this opinion, are appropriate. Plaintiffs
submitted extensive analyses from a forensic economist with detailed calculations for two
decedents, as well as damage calculations for the remaining forty-five decedents done in the
same manner. These analyses yield proposed economic damages comparable to those in other
cases. See, e.g., Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 310-24 (D.D.C.
2005); Alejandre v. Republic of Cuba, 996 F. Supp. 2d 261, 310-24 (D.D.C. 2005). Plaintiffs
have thus provided a sufficient basis to determine damages and are entitled to economic damages
as outlined in the Report. See Transatl. Marine Claims Agency, Inc. v. ACE Shipping Corp.,
109 F. 3d 105, 111 (2d Cir. 1997) (noting that the Court "should take the necessary steps to
establish damages with reasonable certainty").
Magistrate Judge Maas also properly determined that $2,000,000 per decedent, for a total
of $94,000,000, is an appropriate measure of damages which meets the standard of
reasonableness for pain and suffering awards. See Mastrantuono v. United States, 163 F. Supp.
2d 244,258 (S.D.N.Y. 2001). Calculating a precise award for each decedent's individual pain
and suffering would be impossible because the decedents in this case may have experienced
different levels of pain and suffering dependent on their precise locations at the time of the
September 11th attacks. However, Plaintiffs expert report confirms that many, if not all of the
decedents in this case experienced horrific pain and suffering on September 11, 2001. Awards in
other FSIA cases, particularly those determined by Judge Baer in Smith ex rel. Smith v. Islamic
Emirate of Afghanistan, suggest that $2 million per decedent is a reasonable figure. See Smith
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ex rel. Smith v. Islamic Emirate of Afghanistan, 262 F. Supp. 2d 217,233 (S.D.N.Y. 2003),
amended, 2003 WL 23324214 (S.D.N.Y. May 19, 2003); see also Pugh v. Socialist People's
Libyan Arab Jamahiriya, 530 F. Supp. 2d 216 (D.D.C. 2008); Stethem v. Islamic Republic of
Iran, 201 F. Supp. 2d 87, 89 (D.D.C. 2002).
Magistrate Judge Maas properly determined that the following solatium 1 awards are
appropriate2, as an upward departure from the framework in Estate of Heiser v. Islamic Republic
of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006):
Relationship to Decedent Solatium Award
Spouse $12,500,000
Parent $8,500,000
Child $8,500,000
Sibling $4,250,000
A review of Plaintiff's submissions makes clear that all of the Individual Plaintiffs have
suffered profound agony and grief as a result of the tragic events of September 11th.
Considering the extraordinarily tragic circumstances surrounding the September 11th attacks, the
indelible impact on the lives of the victims' families, and the frequent reminders that each of the
individual Plaintiffs face daily, upward departures from the Heiser framework are warranted.
1 "A claim for solatium refers to the mental anguish, bereavement, and grief that those with a close relationship to
the decedent experience as a result of the decedent's death, as well as the harm caused by the loss of decedent's
society and comfort." Dammarell v. Islamic Republic of Iran, 281 F. Supp. 2d 105, 196 (D.D.C. 2003), vacated on
other grounds. 404 F. Supp. 2d 261 (D.D.C. 2005).
2 Magistrate Judge Maas properly determined that one individual Plaintiff is not entitled to a solatium award because
he is not a spouse, child, parent, or sibling of a decedent. Although that plaintiff is the niece of one of the decedents,
she has not demonstrated that she is entitled to a solatium award because she does not serve functionally as an
immediate family member. See Smith, 262 F. Supp. 2d at 234.
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Magistrate Judge Maas also properly determined that Plaintiffs are entitled to punitive
damages pursuant to the FSIA in an amount of 3 .44 multiplied by their compensatory damages,
for a total of $4,686,235,921. See Section 1605(c)(4); Estate of Bland v. Islamic Republic of
Iran, 831 F. Supp. 2d 150, 158 (D.D.C. 2011). The 3.44 ratio has been used as the standard ratio
applicable to a number of cases arising out of terrorist attacks. See id.; Valore, 700 F. Supp. 2d
at 52; Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 76 (D.D.C. 2011).
Magistrate Judge Maas also properly determined that prejudgment interest is appropriate
on Plaintiffs' damages for solatium and pain and suffering. The decision to award prejudgment
interest, as well as how to compute that interest, rests within the discretion of the court, subject to
equitable considerations. Baker v. Socialist People's Libyan Arab Jamahirya, 775 F. Supp. 2d
48, 86 (D.D.C. 2011). Courts "have awarded prejudgment interest in cases where plaintiffs
were delayed in recovering compensation for their injuries-including, specifically, where such
injuries were the result of targeted attacks perpetrated by foreign defendants." Id. (internal
quotations omitted). An appropriate measure of what rate to use when calculating prejudgment
interest is the prime rate. Id. Magistrate Judge Maas properly accepted testimony from
Plaintiffs' expert that the average prime rate from September 11, 2001 through the date of his
report was 4.96%. Thus, Plaintiffs should be awarded prejudgment interest at the rate of 4.96%
per annum on their damages of solatium and pain and suffering damages, which total
$968,000,000, from the period from September 11, 2001, through the date that judgment is
entered.
Non-Sovereign Defendants
Magistrate Judge Maas properly determined that the Non-Sovereign Defendants are
jointly and severally liable for the damages against the Sovereign Defendants. The Non-
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Sovereign Defendants are liable for the same damages as the Sovereign Defendants under
traditional tort principles. See Valore, 700 F. Supp. 2d at 76-80.
Costs
Magistrate Judge Maas properly determined that Plaintiffs are not entitled to the $2
million they seek in costs. Plaintiffs' requested costs are primarily for expenses that are not
recoverable pursuant to 28 U.S.C. § 1920 and Local Rule 54.l(c). For expenses that are
recoverable, Plaintiffs have not provided sufficient evidence to establish these amounts with
reasonable certainty. Transatl. Marine Claims Agency, Inc. v. ACE Shipping Corp., 109 F. 3d
105, 111 (2d Cir. 1997; See N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d
1136, 1148 (2d Cir. 1983). Thus Plaintiffs' application for costs is denied without prejudice.
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Conclusion
This Court adopts the Report and Recommendation in its entirety. Judgment should be
entered against the Sovereign Defendants for (1) economic damages totaling $394,277,884 as
broken down in Appendix 1 of this Opinion; (2) damages for pain and suffering of $2,000,000
per decedent totaling $94,000,000; (3) punitive damages totaling $4,686,235,921; and (4)
damages for solatium totaling $874,000,000. The Non-Sovereign Defendants are joint and
severally liable for these damages. Plaintiffs' additional claims for costs are denied without
prejudice.
Dated: New York, New York
October 3, 2012
7
SO ORDERED:
Annex 369

Document Long Title

Volume V - Annexes 359-369