Shlomo Leibovitch v. Islamic Republic of , 697 F.3d 561 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1564
S HLOMO L EIBOVITCH, et al.,
Plaintiffs-Appellants,
v.
ISLAMIC R EPUBLIC OF IRAN, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cv-01939—William T. Hart, Judge.
S UBMITTED S EPTEMBER 12, 2011—D ECIDED S EPTEMBER 25, 2012
Before B AUER, R OVNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. The Leibovitch family was
attacked by terrorists while driving along a highway in
Israel. One child, an Israeli national, died in the attack
while a second child, a United States citizen, was seriously
injured. The family brought suit in federal district court
against the Islamic Republic of Iran and the Iranian
Ministry of Information and Security under the terrorism
exception of the Foreign Sovereign Immunities Act,
2 No. 11-1564
28 U.S.C. § 1605A, for providing material support and
resources to the organization that carried out the attacks.
The district court adjudicated the claim for injuries sus-
tained by the United States citizen child. But the trial
court found no jurisdiction over intentional infliction
of emotional distress claims brought by her other
family members on the grounds that they are not United
States citizens. Because we conclude that the Foreign
Sovereign Immunities Act confers subject-matter juris-
diction over the emotional distress claims brought by
the Leibovitchs under Israeli law, we reverse and remand.
I. BACKGROUND
On June 17, 2003, several members of the Leibovitch
family were traveling along the Trans-Israel highway
near the town of Kalkilya through an area bordering
the West Bank. Agents of the Palestine Islamic Jihad
(“PIJ”) crossed from the West Bank into Israel and fired
upon the Leibovitchs’ minivan using pistols and a
Kalishnikov rifle. The Leibovitchs’ seven-year-old child,
N.L., an Israeli national, was killed by the gunshots. Her
three-year-old sister, S.L., an American citizen, survived
but was severely injured by bullets that shattered bones
in her right wrist and pierced her torso. Two of the
girls’ grandparents and two siblings were also in the van
during the attack. They survived but witnessed N.L.’s
horrifying death as well as the grave injuries inflicted
upon S.L.
On April 3, 2008, the Leibovitchs brought suit against
the Islamic Republic of Iran and its Ministry of Informa-
No. 11-1564 3
tion and Security (collectively “Iran”). The complaint
sought damages on behalf of each family member in
the van as well as N.L. and S.L.’s parents, none of
whom were United States citizens.
The trial court entered a default order against Iran
after the defendants received service of process via dip-
lomatic channels but failed to respond or enter an ap-
pearance. After reviewing expert testimony and docu-
mentary evidence from the plaintiffs, the district court
determined that S.L. was injured in “an act of . . . extrajudi-
cial killing” under the FSIA exception for terrorism,
§1605A(a)(1). The district court further found that Iran
was vicariously liable for the PIJ’s terrorist attack because
Iran had openly provided material support and resources
for the PIJ’s campaign of extrajudicial killings. Finally, the
district court calculated $17.5 million in compensatory
damages for S.L.’s post-traumatic stress, loss of solatium
from her sister’s death, and permanent disability and
disfigurement resulting from the attack. An additional
$35 million was awarded to S.L. in punitive damages.
However, the district court dismissed all claims raised
by the other members of the Leibovitch family for lack
of subject-matter jurisdiction. After a motion for recon-
sideration, the trial court still concluded that it did
not have subject-matter jurisdiction and further sug-
gested that even if it did, the court was not persuaded
that Israeli law would permit the plaintiffs to recover
for intentional infliction of emotional distress. The
Leibovitchs appeal. Though they concede that the
district court was correct to find no jurisdiction over
4 No. 11-1564
certain counts in the complaint, the family contends that
there is subject-matter jurisdiction over claims brought
by family members under Israeli law for intentional
infliction of emotional distress arising from S.L.’s injury.
Iran has not made an appearance or filed any briefs
in this case.
II. ANALYSIS
This action is brought against Iran pursuant to the state-
sponsored terrorism exception to the Foreign Sovereign
Immunities Act (“FSIA”), 28 U.S.C. § 1605A (2008). The
FSIA provides the sole basis for asserting jurisdiction
over foreign nations in United States courts. Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443
(1989). Foreign states enjoy immunity under the FSIA in
all cases that do not fall into one of the statute’s
specifically enumerated exceptions. Id. at 439; Enahoro v.
Abubakar, 408 F.3d 877, 881 (7th Cir. 2005).
A. Historical Background of FSIA State-Sponsored
Terrorism Exception
The exception to foreign sovereign immunity presented
in this case has a convoluted history. Congress and the
federal courts have engaged in an extended dialogue
over the scope and appropriate interpretation of this
statutory provision. Most relevant to our analysis of
subject-matter jurisdiction are: 1) the initial version of
the terrorism exception adopted in 1996, 2) the Flatow
Amendment passed later in 1996, 3) the D.C. Circuit’s
No. 11-1564 5
decision in Cicippio-Puleo v. Islamic Republic of Iran, 353
F.3d 1024 (2004), and 4) Congress’s 2008 abrogation of
Cicippio-Puleo and enactment of a revised, reconsolidated
terrorism exception codified in § 1605A.
1. Original Terrorism Exception
Congress amended the FSIA as part of the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) to
add a new exception for state sponsorship of certain acts
of terrorism. Pub. L. No. 104-132, § 221(a), 110 Stat. 1214(formerly codified at 28 U.S.C. § 1605(a)(7) (repealed
2008)). This exception eliminated sovereign immunity
and permitted suit directly against a foreign state “for
personal injury or death that was caused by an act of
torture, extrajudicial killing, aircraft sabotage, hostage
taking, or the provision of material support or resources . . .
for such an act . . . .” § 1605(a)(7). One of the explicit
purposes of AEDPA was to “deter terrorism” directed
at United States citizens and supported by foreign sover-
eigns as well as to “provide justice” for victims of terrorist
acts. 110 Stat. at 1214; see also Republic of Iraq v. Beaty,
556 U.S. 848, 859 (2009) (Section 1605(a)(7) “was intended
as a sanction, to punish and deter undesirable conduct.”)
For the terrorism exception to be invoked, a nexus to
the death or injury of a United States citizen was re-
quired. Sovereign immunity would still apply and bar suits
against a foreign state if “neither the claimant nor
the victim was a national of the United States.”
§ 1605(a)(7)(B)(ii).
6 No. 11-1564
The 1996 version of the terrorism exception codified
in § 1605(a)(7) has been understood as a jurisdiction-
conferring amendment, consistent with the overarching
framework of the FSIA. But the language of § 1605(a)(7)
left unresolved whether Congress intended to create a
federal private right of action under the newly enacted
exception. See Price v. Socialist People’s Libyan Arab
Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002) (“The FSIA is
undoubtedly a jurisdictional statute which, in specified
cases, eliminates foreign sovereign immunity . . . . There
is a question, however, whether the FSIA creates a
federal cause of action . . . against foreign states.” (cita-
tions omitted)).
An underlying presumption of the FSIA is that an
exception to sovereign immunity does not create a
private right of action against a defendant whose
conduct falls within a delineated exception. Section 1606
of the FSIA provides: “As to any claim for relief with
respect to which a foreign state is not entitled to
immunity . . ., the foreign state shall be liable in the
same manner and to the same extent as a private indi-
vidual under like circumstances.” The Supreme Court
has interpreted § 1606 to mean that the FSIA does not,
as a general matter, provide a substantive source of
liability against a foreign state. See First Nat. City Bank
v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611,
620 (1983) (“The language and history of the FSIA
clearly establish that the Act was not intended to affect
the substantive law determining the liability of a foreign
state or instrumentality, or the attribution of liability
among instrumentalities of a foreign state.”). In the
No. 11-1564 7
absence of a substantive source of law from the statute,
plaintiffs have typically been required to bring suit using
causes of action based on underlying state or foreign
law when an exception to sovereign immunity applies.
Id. at 621-23
An FSIA plaintiff’s reliance on a cause of action found
in state tort law has been referred to as the “pass-
through” approach. See Pescatore v. Pan Am. World
Airways, Inc., 97 F.3d 1, 12 (2d Cir. 1996) (“the FSIA . . .
operates as a ‘pass-through’ to state law principles.”
(quoting Zicherman v. Korean Air Lines Co., 516 U.S. 217,
229 (1996))). Choice of law rules typically determine
the source of law for the appropriate action, often
based upon the plaintiff’s domicile or the location of the
injury. See id.
2. The Flatow Amendment Ensured Punitive
Damages Against Officials and Agents of
State-Sponsored Terrorism.
Though § 1605(a)(7) established a jurisdictional frame-
work for claims arising from terrorist acts, Congress
began to turn its attention to the practical needs of plain-
tiffs pursuing suits under this section. Five months after
AEDPA’s enactment, Congressman Jim Saxton sponsored
an amendment to § 1605(a)(7) creating a federal cause
of action for plaintiffs against agents and officers of
states that sponsor terrorism. The new provision was
enacted on September 30, 1996 as part of the 1997
Omnibus Consolidated Appropriations Act. Pub. L. No.
104-208, § 589, 110 Stat. 3009-172 (1996) (formerly codified
8 No. 11-1564
at 28 U.S.C. § 1605 note (repealed 2008)). The law became
known as the Flatow Amendment after Alisa Flatow,
a Brandeis University student mortally wounded in
a suicide bombing attack in the Gaza Strip.1
Congress’s principal goal in adopting the Flatow Amend-
ment appears to have been to ensure the availability of
punitive damages against agents of state sponsors
1
Alisa Flatow’s father, Stephen Flatow, successfully lobbied
Congress for an express, federal private right of action with the
option for punitive damages against agents and officers of
state sponsors of terrorism. See In re Islamic Republic of Iran
Terrorism Litig., 659 F. Supp. 2d 31, 43 (D.D.C. 2009) (discussing
legislative history and lobbying efforts of Flatow family); see also
Richard T. Micco, Putting the Terrorist-Sponsoring State in the
Dock: Recent Changes in the Foreign Sovereign Immunities Act and
the Individual’s Recourse Against Foreign Powers, 14 Temp. Int’l
& Comp. L.J. 109, 110 n.7 (2000). The Flatow Amendment
provided:
(a) An 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, employ-
ment, 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) . . . for money damages which may include
economic damages, solatium, pain, and suffering, and
punitive damages if the acts were among those de-
scribed in section 1605(a)(7).
28 U.S.C. § 1605 note.
No. 11-1564 9
of terrorism. Section 1606 of the FSIA prohibits punitive
damages from being awarded directly against a foreign
state. See id. (“a foreign state except for an agency or
instrumentality thereof shall not be liable for punitive
damages . . .”). Because the pass-through approach re-
quires plaintiffs to rely on a state cause of action, § 1606
cast doubt on whether plaintiffs could recover punitive
damages against defendants who intentionally engaged
in or supported acts of terrorism. The Flatow Amendment
was designed to eliminate any uncertainty and make
punitive damages definitively available, at least against
the “official, employee, or agent” acting on behalf of
the state sponsor of terrorism. § 1605 note. The very
brief legislative history accompanying the Flatow Amend-
ment supports this interpretation: “The conference agree-
ment inserts language expanding the scope of monetary
damage awards available to American victims of inter-
national terrorism.” H.R. Rep. No. 104-863, at 987
(1996) (Conf. Rep.).
By expressly providing for punitive damages, Congress
sought to advance the broader goal of the terrorism
exception: altering the conduct of foreign nations
engaged in terrorism. As detailed above, the FSIA is not
generally intended to affect the substantive law of
liability or to affect the primary conduct of foreign states.
But the terrorism exception plays a very different role
within the statutory scheme. In Flatow v. Islamic Republic
of Iran, the first case to apply the Flatow Amendment’s
federal cause of action, the D.C. District Court observed:
“The state sponsored terrorism provisions represent a
sea change in the United States’s approach to foreign
10 No. 11-1564
sovereign immunity. For the first time, Congress has
expressly created an exception to immunity designed to
influence the sovereign conduct of foreign states and
affect the substantive law of liability for non-immune
acts.” 999 F. Supp. 1, 14 (D.D.C. 1998). In examining the
legislative history of § 1605(a)(7) and § 1605 note,
the Flatow court concluded that “one of [Congress’s]
express purposes is to affect the conduct of terrorist
states outside the United States, in order to promote the
safety of United States citizens traveling overseas.” Id. at
15 (compiling legislators’ remarks).
Congressman Saxton, who served as Chairman of the
House Task Force on Counterterrorism and Unconven-
tional Warfare, believed a punitive damages regime
essential to adequately deter state sponsorship of terrorist
attacks that could injure or kill Americans. According to
statements made by Saxton, “compensatory damages
for wrongful death cannot approach a measure of
damages reasonably required for a foreign state to take
notice.” Id. at 25 (citing Congressman Jim Saxton, News
Release, Saxton to the Flatow Amendment Family: “Be
Strong, America is Behind You,” (Feb. 26, 1997)). In his
view, the only way to achieve the goal of altering state
conduct “was to impose massive civil liability on foreign
state sponsors of terrorism whose conduct results in
the death or personal injury of United States citizens.”
Id. The Flatow court ultimately awarded the plaintiffs
punitive damages ten times the amount of the $22.5 million
calculated in compensatory damages, for a total of
$247.5 million.
No. 11-1564 11
3. Cicippio-Puleo Rejected Implied Federal Action
Against Foreign State under FSIA.
The plain language of the Flatow Amendment permitted
a private right of action and accompanying punitive
damages only against the “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 . . .”
§ 1605 note (emphasis added). The statutory provision
made no reference to direct suits against a foreign state.
Nevertheless, confusion persisted among district courts
for the District of Columbia regarding the intended
scope of the private right of action created by Congress.2
Some courts read the Flatow Amendment in conjunc-
tion with the legislative history of § 1605(a)(7) to infer
a federal private right of action directly against a
foreign state.3
2
The United States District Court for the District of Columbia
has adjudicated the vast majority of suits under the FSIA’s
terrorism exception, many of which are reviewed in detail in
In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31,
43 (D.D.C. 2009). Because this District has substantial
experience interpreting these statutory provisions, we have
reviewed its cases for guidance here.
3
See Cronin v. Islamic Republic of Iran, 238 F. Supp. 2d 222, 231
(D.D.C. 2002) (holding that the Flatow Amendment provides a
cause of action against a foreign state); see also Regier v. Islamic
Republic of Iran, 281 F. Supp. 2d 87, 98-99 (D.D.C. 2003) (adopting
Cronin’s reasoning); Kilburn v. Republic of Iran, 277 F. Supp. 2d
24, 36-37 (D.D.C.2003) (same).
12 No. 11-1564
In Cicippio-Puleo v. Islamic Republic of Iran, the D.C.
Circuit rejected these interpretations, ruling 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 at
1033. Instead, “[s]ection 1605(a)(7) merely waives the
immunity of a foreign state without creating a cause of
action against it . . . .” Id. The D.C. Circuit reasoned that
there is a “settled distinction in federal law between
statutory provisions that waive sovereign immunity and
those that create a cause of action.” Id. (citing FDIC v.
Meyer, 510 U.S. 471, 483-84 (1994)). And without express
language providing for a private right, federal courts
should refrain from implying a cause of action into the
statutory framework. See id. (citing Correctional Servs.
Corp. v. Malesko, 534 U.S. 61, 67 n.3 (2001)).4
According to Cicippio-Puleo, by enacting the Flatow
Amendment, Congress effectively created a private
cause of action that was narrower than the grant of subject-
matter jurisdiction under the terrorism exception.
Though the federal cause of action extended only to
officials and agents of state sponsors of terrorism,
Congress had conferred broader jurisdiction on federal
courts to hear claims directly against a foreign state. But
if jurisdiction was established and no official or agent
had been identified, a plaintiff would still need to
4
The D.C. Circuit’s decision was supported by an amicus
brief from the United States which also took the position that
the § 1605(a)(7) and the Flatow Amendment did not create
a private right of action against foreign states.
No. 11-1564 13
identify a “viable cause of action” in order to recover.
Cicippio-Puleo, 353 F.3d at 1036. So, where a plaintiff
sought damages directly from a foreign state, he or she
would have to rely upon underlying substantive state
or foreign law using the pass-through approach
discussed above. Furthermore, no punitive damages
would be available for such claims due to § 1606.
4. Congress Establishes Private Right of Action
Against Foreign States under § 1605A.
The Cicippio-Puleo decision presented hurdles for some
FSIA plaintiffs seeking to hold state sponsors of terrorism
accountable. The pass-through approach created a patch-
work of inconsistent recovery for victims of terrorism
and their families because the availability of a cause
of action depended upon choice of law factors such as
the law of the plaintiff’s domicile. For example, family
members of Marines and servicemen killed in the 1983
terrorist bombing in Beirut brought suit against Iran
for intentional infliction of emotional distress. See
Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25, 43-
44 (D.D.C. 2007). While some family members were able
to bring successful claims, other claims were barred
effectively on the basis of the plaintiff’s domicile. Those
family members domiciled in Pennsylvania or Louisiana
had no standing to sue because the substantive law
of those states required plaintiffs to be physically
present at the time of the attack. See id.In addition, the Cicippio-Puleo decision frustrated the
goal of deterring state sponsorship of terrorism
14 No. 11-1564
through massive damages awards in civil suits. Section
1606 of the FSIA barred punitive damages even if such
damages might be permitted under the pertinent sub-
stantive law. As a result, punitive damages were
generally unavailable unless plaintiffs could identify an
officer or agent responsible for coordinating or sup-
porting the terrorist act.
Congress responded by repealing and revisiting in
its entirety the terrorism exception. Section 1083 of the
2008 National Defense Appropriations Act (NDAA)
replaces § 1605(a)(7) and the Flatow Amendment with
a new statute, codified at § 1605A. Pub. L. No. 110-181,
§ 1083(2)-(3), 112 Stat. 3, 342-43. The new statute
imports the original grant of jurisdiction from § 1605(a)(7)
largely unchanged, while adding new categories of poten-
tial claimants. See § 1605A(a)(1)-(2). The 1996 exception
had preserved sovereign immunity if “neither the
claimant nor the victim was a national of the United
States.” § 1605(a)(7)(B)(ii). The new statute now provides:
“The court shall hear a claim under this section if . . . the
claimant or the victim was . . . a national of the United
States . . . [or a member of the military or a United
States employee]. § 1605A(a)(2).
In addition, Congress expressly created a private right
of action affording compensatory and punitive damages
against a “foreign state” and “any official, employee, or
agent of that foreign state while acting within the scope
of his or her office, employment, or agency.” § 1605A(c).
The new cause of action also provides a range of addi-
tional rights that were previously unavailable, including
No. 11-1564 15
expanded remedies for plaintiffs seeking to attach assets
of state sponsors of terrorism within the jurisdiction
of the United States. The statute only permits four catego-
ries of claimants to invoke the private right of action:
United States citizens, members of the military, and
United States employees. See § 1605A(c) (“a foreign
state . . . shall be liable to . . . (1) a national of the United
States, (2) a member of the armed forces, (3) an employee
of the Government of the United States . . . or (4) the legal
representative of a person described in paragraph (1), (2),
or (3)”).
When Senator Frank Lautenberg introduced the bill
in the Senate, he remarked:
Congress’s original intent behind the 1996 legisla-
tion has been muddied by numerous court deci-
sions. . . . Since [Cicippio-Puleo], judges have been
prevented from applying a uniform damages
standard to all victims in a single case because
a victim’s right to pursue an action against a
foreign government depends upon State law.
My provision in this bill fixes this problem by
reaffirming the private right of action under the
Flatow Amendment against the foreign state
sponsors of terrorism themselves.
154 Cong. Rec. S54 (daily ed. Jan. 22, 2008) (statement of
Sen. Lautenberg). However, sixteen years after the en-
actment of the original terrorism exception and Congress’s
revisions, some mud remains in the water. The resulting
statute codified in § 1605A “is anything but a model
of clarity” and gaps remain in interpreting Congress’s
16 No. 11-1564
intent. Roeder v. Islamic Republic of Iran, 742 F. Supp. 2d 1, 13
(D.D.C. 2010) (quoting government’s brief). Here, we
consider § 1605A’s application to foreign national
family members of an American victim of a terrorist act.
B. Subject-Matter Jurisdiction Exists over the
Leibovitchs’ Emotional Distress Claims.
The district court dismissed claims brought by S.L.’s
family members reasoning that without United States
citizenship they could not invoke the federal cause of
action, § 1605A(c). The court also declined to exercise
supplemental jurisdiction over the family’s claims
under Israeli law. The Leibovitchs appeal, contending
that the terrorism exception confers original jurisdic-
tion over pass-through claims brought by family
members under foreign sources of law for harm caused
by the injury or death of an American relative. We
review a district court’s dismissal for lack of subject-
matter jurisdiction de novo. Graczyk v. W. Pub. Co., 660
F.3d 275, 278 (7th Cir. 2011).
Though the district court declined to exercise supple-
mental jurisdiction, we note that original jurisdic-
tion, where it exists, is not so discretionary. Section
1605A(2) provides that a “court shall hear a claim under
this section” (emphasis added) if the other conditions of
the statute are met. We observe that “[f]ederal courts,
though courts of limited jurisdiction . . . have no more
right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given.” Mims v.
Arrow Fin. Servs., LLC, ___ U.S. ___, 132 S. Ct. 740, 747
No. 11-1564 17
(2012) (internal quotation marks and citations omitted).
If original subject-matter jurisdiction has been estab-
lished, the district court must hear the Leibovitchs’ claims.
As a preliminary matter, the trial court was correct
that the foreign national family members cannot pursue
a claim for personal injuries under the new federal cause
of action created by Congress. Section 1605A(c) provides:
Private right of action.—a foreign state . . . shall be
liable to . . . (1) a national of the United States, (2) a
member of the armed forces, (3) an employee of the
Government of the United States, or of an individual
performing a contract awarded by the United States
Government, acting within the scope of the em-
ployee’s employment, or (4) the legal representative
of a person described in paragraph.
The Leibovitchs concede that the federal cause of action
is not available to them because only S.L. is a “national
of the United States.” S.L.’s family members do not
fall within any of the four categories of claimants out-
lined in this provision.
However, the plaintiffs contend that the subject-matter
jurisdiction conferred by Congress in § 1605A(a) is
broader than the types of claimants who may make use
of the private right of action in § 1605A(c). In pertinent
part, § 1605A(a) provides:
(1) No immunity.—A foreign state shall not be
immune from the jurisdiction of courts of the
United States . . . in which money damages are
sought against a foreign state for personal injury or
death that was caused by an act of torture, extraju-
18 No. 11-1564
dicial killing, aircraft sabotage, hostage taking, or
the provision of material support or resources
for such an act . . . .
(2) Claim heard.—The court shall hear a claim
under this section if . . .
(A)(ii) the claimant or the victim was, at the time
the act described in paragraph (1) occurred—
(I) a national of the United States;
(II) a member of the armed forces;
or
(III) otherwise an employee of the
Government of the United States,
or of an individual performing a
contract awarded by the United
States Government, acting within
the scope of the employee’s em-
ployment . . .
(emphasis added). Since § 1605A(a)(2)(A)(ii) grants juris-
diction over cases where either the claimant or the victim
was a United States citizen, the Leibovitchs argue that
original subject-matter jurisdiction exists over their
claims because S.L. was a victim in the terrorist attack
and is a United States national. Though the family mem-
bers cannot make use of the private right of action from
§ 1605A(c), they argue that the district court must ad-
judicate their claims under Israeli law using the pass-
through approach employed after Cicippio-Puleo.
We therefore consider whether § 1605A’s jurisdictional
scope precisely tracks the new private right of ac-
No. 11-1564 19
tion—which excludes most foreign nationals even if they
are family members—or whether the pass-through ap-
proach survives Congress’s substantial revision of the
FSIA’s terrorism provision. We are not aware of a court
of appeals that has squarely reached this issue and we
note at the outset that the answer is less than crystal-
clear, given the convoluted history of this statute. One
of the stated reasons given by Senator Lautenberg for
adopting the revised terrorism exception was that
“judges have been prevented from applying a uniform
damages standard to all victims in a single case because
a victim’s right to pursue an action against a foreign
government depends upon State law.” 154 Cong. Rec. S54.
Permitting pass-through suits using the substantive law
of the plaintiff’s domicile will lead to similar inconsis-
tencies to those that occurred before the enactment
of § 1605A, albeit only for foreign national family mem-
bers. Nevertheless, several factors suggest that Congress
intended to confer jurisdiction over the Leibovitchs’
emotional distress claims.
First, the plain text and plain meaning of
§ 1605A(a)(2)(A)(ii) extends jurisdiction to cases where
either “the claimant or the victim was, at the time of the
[terrorist] act” a United States citizen. The claimant and
victim need not both be American citizens. As a
general matter, “[w]e should prefer the plain meaning
since that approach respects the words of Congress.”
Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004). If Congress
intended a jurisdictional scope coterminous with that of
§ 1605A(c)’s private right of action for United States
nationals, there would have been no need to include
20 No. 11-1564
the word “victim.” We would show little deference to
Congress’s chosen language if we simply read the
word “victim” out of the statute entirely. Denying juris-
diction over family members’ claims for American
victims would require us to ignore the disjunctive
structure of § 1605A(a)(2)(A)(ii).5
Congress’s intention to cover claims by foreign
national family members also emerges from the legisla-
tive history accompanying the 1996 precursor to this
jurisdiction-conferring provision: § 1605(a)(7)(B)(ii).
Congress slightly amended language in this provision
to waive sovereign immunity if “neither the claimant nor
the victim was a national of the United States . . . when
the act upon which the claim is based occurred.” Id.
(emphasis added). The accompanying House Report
explained that the clarification was made to ensure re-
5
In La Reunion Aerienne v. Socialist People’s Libyan Arab
Jamahiriya, the D.C. Circuit interpreted the former version of the
terrorism exception, § 1605(a)(7), as permitting third-party
insurers to sue Libya for claims paid to families of American
victims killed in the bombing of a French airliner. 533 F.3d 837(2008). The court found the statutory language of § 1605(a)(7)
“clear on its face . . . . [I]f either the claimant or the victim is
a national of the United States, then immunity is waived.” Id.
at 844. Since there was “no dispute that the victims were
United States nationals,” sovereign immunity was “not a bar” to
suits by the claimant insurers. Id. Though La Reunion Aerienne
dealt with the former iteration of the terrorism exception,
we find the statutory language of § 1605A(a)(2)(A)(ii)
similarly “clear on its face.”
No. 11-1564 21
covery for foreign national family members: “The intent
of the drafters was that a family should have the benefit
of these provisions if either the victim of the act or
the survivor who brings the claim is an American na-
tional. Due to a drafting error, the current law can be read
to require that both the victim and the claimant must
be American nationals before the claimant can use these
provisions. . . . The correction will benefit several of the
Pan Am 103 families who could potentially lose their
claims if this correction is not passed.” H.R. Rep. 105-48
at 2 (1996). Since S.L. was an American national and a
victim of the terrorist act, Congress appears to have
intended her immediate family members to “have the
benefit” of the FSIA’s jurisdictional provisions even
if they cannot make use of the federal cause of action.
Next, the overall jurisdiction-conferring structure of
the FSIA supports the interpretation that the pass-
through approach survives Congress’s creation of a
private right of action. The typical rule for suits under
the FSIA is that the statute “operates as a ‘pass-through’
to state law principles.” Pescatore, 97 F.3d at 12. So, by
bringing a claim against Iran under Israeli law, S.L.’s
family members would be making traditional use of the
FSIA.
Section 1605A is unique in that it not only confers
jurisdiction but also includes a private right of action,
a remedy not offered under any other exception to sover-
eign immunity. But the questions of whether a private
right of action exists and whether there has been a
waiver of sovereign immunity are “two analytically
22 No. 11-1564
distinct inquiries” that should not be “conflate[d]” Meyer,
510 U.S. at 484 (1994). As the D.C. Circuit recognized
in Cicippio-Puleo, Congress’s enactment of the Flatow
Amendment did not require that the private right of
action precisely match the jurisdictional scope of
§ 1605(a)(7). 359 F.3d at 1033. Congress was free to estab-
lish a narrower federal cause of action applying only to
an “official, employee, or agent of a foreign state . . . .”
§ 1605(a)(7) note. The same is true here; Congress has
established a private right of action principally for Ameri-
can claimants while waiving sovereign immunity in a
broader set of cases also involving American victims.
A principal objective seems to have motivated
Congress during its twelve-year dialogue with the
courts over the terrorism exception: permitting massive
judgments of civil liability against nations that sponsor
terrorism. Congress adopted the Flatow Amendment “to
make the availability of punitive damages undisputable.”
Flatow, 999 F. Supp. at 25 (citing Saxton News Release,
supra). After Cicippio-Puleo confined the Flatow Amend-
ment’s federal cause of action to agents and officers of
state sponsors of terrorism, Congress rebuffed the D.C.
Circuit by enacting § 1605A(c). But there is no indication
that it acted in order to narrow the original scope of
jurisdiction. Instead, the legislative history suggests that
§ 1605A(c) was intended to extend punitive damages
to foreign nations sponsoring terrorism and thereby
allow the massive liability judgments the original
drafters hoped would deter state support for terrorism.
Rejecting jurisdiction over claims brought by foreign
national family members would be at odds with
No. 11-1564 23
Congress’s goal of expanding the liability of state
sponsors of terrorism. See Ruthanne M. Deutsch, Suing
State-Sponsors of Terrorism Under the Foreign Sovereign
Immunities Act: Giving Life to the Jurisdictional Grant After
Cicippio-Puleo, 38 Int’l Law 891, 901-03, 916 (2004) (arguing
that Flatow Amendment’s private right of action did not
displace broader grant of jurisdiction and that federal
courts have a responsibility to give effect to Congress’s
full jurisdictional grant).
We pause to note that there are significant questions
regarding the wisdom of combating international ter-
rorism through private civil suits. Because terrorism
involves a broad range of foreign policy considerations,
many commentators have argued that the political
branches must address the matter as opposed to a broad
range of courts and judges adjudicating competing cases
and controversies. See Iran Terrorism Litig., 659 F. Supp. 2d
at 38 (D.D.C. 2009) (“If the decade-long history of these
FSIA terrorism actions has revealed anything, it is that
the Judiciary cannot resolve the intractable political
dilemmas that frustrate these lawsuits; only Congress
and the President can. Today, at the start of a new presi-
dential administration—one that has sought engagement
with Iran on a host of critical issues—it may be time for
our political leaders here in Washington to seek a fresh
approach.”); see also, e.g., Anne-Marie Slaughter & David
Bosco, Plaintiff’s Diplomacy, Foreign Aff. 102 (Sept/Oct
2000); Daveed Gartenstein-Ross, A Critique of the Terrorism
Exception to the Foreign Sovereign Immunities Act, 34 N.Y.U.
J. Int’l L. & Pol 887 (2002). Whatever the merits of this
debate, we are obliged to focus on statutory text and
24 No. 11-1564
congressional intent and we do not find evidence to
support the conclusion that Congress intended to
foreclose claims by noncitizen family members when
it enacted § 1605A(c).
In Estate of Doe v. Islamic Republic of Iran, a D.C. district
court considered claims brought by foreign national
family members who sought to make use of the new
federal cause of action in § 1605A(c). 808 F. Supp. 2d 1, 17-
19 (D.D.C. 2011). The court ruled that since they did
not fall within any of § 1605A(c)’s four permitted catego-
ries, “those plaintiffs who are foreign national family
members of victims of the terrorist attacks in Beirut lack
a federal cause of action. But they may continue to
pursue claims under applicable state and/or foreign
law. 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.” Id. at 20. We agree and conclude
that the plaintiffs have established subject-matter juris-
diction over their claims for emotional distress arising
out of the injuries inflicted upon S.L., a U.S. citizen
victim of the terrorist attack.6
6
Since 2008, some district courts have concluded that
§ 1605A(c) provides the only cause of action for American
citizen plaintiffs who sought to bring simultaneous claims
under state law. In Gates v. Syrian Arab Republic, the court
considered common law tort claims brought alongside
§ 1605A(c) and found that “state law no longer controls the
nature of the liability and damages that may be sought when
(continued...)
No. 11-1564 25
A separate question not addressed by plaintiffs, is
whether S.L. herself constitutes a “victim” as the term is
used in § 1605A(a)(2)(A)(ii). Section 1605A does not
define “victim.” There can be no doubt that S.L. is a
victim in the sense that she received a severe and
traumatizing injury in the attack that killed her sister.
But we note that N.L., a foreign national, was the indi-
vidual murdered by the “act of . . . extrajudicial killing.”
§ 1605A(a)(1). The D.C. district courts that have con-
sidered the definition of “victim” have generally inter-
preted it broadly. See Valore v. Islamic Republic of Iran, 700
F. Supp. 2d 52, 68 (D.D.C. 2010) (“the Court identifies
victims as those who suffered injury or died as a result
of the attack and claimants as those whose claims arise
out of those injuries or deaths but who might not be
(...continued)
it is a foreign government that is sued: Congress has provided
the ‘specific source of law’ for recovery.” 580 F. Supp. 2d 53,
66 (D.D.C. 2008) (citing Acree v. Republic of Iraq, 370 F.3d 41, 59
(D.C.Cir. 2004)); see also Estate of Heiser v. Islamic Republic of
Iran, 659 F. Supp. 2d 20, 23 (D.D.C. 2009) (“[P]laintiffs pro-
ceeding under § 1605A can forgo the pass-through approach
that controlled in the wake of Cicippio-Puleo and may assert
claims on the basis of the new federal statute alone.”). We note
that these cases present a different scenario because American
citizen plaintiffs have the option of proceeding under the
statute’s private right of action. In contrast, Congress has not
provided a “specific source of law” for foreign national family
members who cannot bring suit under § 1605A(c). Therefore,
the pass-through approach continues to apply to this class
of plaintiffs.
26 No. 11-1564
victims themselves. In this case, victims include the
241 members of the U.S. armed forces who were killed,
the many more who were physically and emotionally
injured, and the family members alleging injury suffered
from intentional infliction of emotional distress.”). We
agree with this interpretation. Though she is not a victim
of extrajudicial killing, S.L. is a victim of the act that
killed her sister because she was severely injured in
the same assault. Therefore, jurisdiction exists for her
foreign national family members to bring claims derived
from S.L.’s injury. See also Estate of Doe, 808 F. Supp. 2d
at 13; Peterson, 515 F. Supp. 2d at 66 (calculating damages
for claims brought by family members of servicemen
who were injured but not killed in the 1983 attack on
the Marine Corps barracks in Beirut).
A final matter warrants discussion. In its response to
the plaintiffs’ motion for reconsideration, the district
court issued a very brief statement including a two-sen-
tence analysis hypothesizing that “[e]ven assuming that
there is jurisdiction over these plaintiffs’ solatium
claims [under Israeli law,] . . . [t]he declarations they
provide to support the provisions of Israeli law, however,
[do] not establish that Israeli law recognizes solatium
or grief claims based on injury to a relative.” Our
concern is that a court may not presume hypothetical
jurisdiction in order to decide a question on the merits.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101
(1998) (“Hypothetical jurisdiction produces nothing
more than a hypothetical judgment—which comes to
the same thing as an advisory opinion, disapproved by
this Court from the beginning.”). Therefore, we vacate
No. 11-1564 27
the district court’s hypothetical determination and
remand for reconsideration of the emotional distress
claims. See In re LimitNone, LLC, 551 F.3d 572, 577 (7th
Cir. 2008).
III. CONCLUSION
We R EVERSE the judgment of the district court and
R EMAND for further proceedings consistent with this
opinion.
9-25-12