Roberts v. Islamic Republic of Iran ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE PISTRICT OF COLUM_BIA
ALLAN ROBERTS,
et al.,
Plaintiffs,
V. Case No. ·1:20-cv-1227-RCL
THE ISLAMIC REPUBLIC OF IRAN
Defendant.
MEMORANDUM OPINION
During the United States military's occupation of Iraq, insurgents attacked American
troops and their allies with explosively formed penetrators ("EFPs")-a type of improvised
explosive device ("IED") capable of exceptional destruction and lethality. Plaintiffs here are
thirteen contractors injured in EFP attacks (the "Contractor Plaintiffs") 1 and their immediate
family members (the "Family Member Plaintiffs" and the "Mughal Plaintiffs"). 2 These individuals
ask the Court to hold the Islamic Republic oflran ("Iran") liable for materially supporting the EFP
attacks that injured them. Iran has not responded to this lawsuit, so plaintiffs have moved for
default judgment. See Entry of Default, ECF No. 15; Mot. for Default J., ECF No. 16.
1
The· Contractor Plaintiffs are Allan Roberts, Jaco Bates, Steven Crowley, John Jameson, Abdul Ghaffar Mughal,
George Riekert, the Estate of Christiaan Oosthuizen, George Kieser, Johann Steenberg, Leon Botha, Dean Capazorio,
Pierre Du Plessis, and Schalk Bruwer.
2
The Family Member Plaintiffs are Betha.n Johnson, C.D.R., Natasha Grove, O.J.C., L.A.C., Sarah Crowley, Michael
Crowley, Patricia Crowley, Kristin Jameson, Edith Nichol, Thomas Jameson, Simone Riekert, M.R., Simon Riekert,
Wilhelmina Oosthuizen, Chante Oosthuizen, Shibone de Bruyn, Shaun Oosthuizen, Magdalena Oosthuizen, Maggie
Kieser, Emogene Boje, Sone Smith, Gavin Smith, Johannes Kieser, Hester Hart, Amoldus Kieser, Loraine Steenberg,
Rene Botha, Jene Steenberg Marais, Desere Steenberg, the Estate of Estelle Brink, Brendon Botha, Leanelle Botha,
Janet Capazorio, Brandon Capazorio, Shannon Figg, George Capazorio, Maud Capazorio, Bettina Calder, Carin
Capazorio, Sarel Du Plessis, Susan De Clercq, Rozelle Adams, and Mame Bruwer. The Mughal Plaintiffs consist of
Sitorai Khasanzod, Khalid Mughal, Hamid Mughal, Angela Mughal, N.M., and M.M.
1
In this memorandum opinion, the Court will set forth its findings of fact and conclusions
of law on plaintiffs' claims. Plaintiffs raise claims against Iran under the Foreign Sovereign
Immunities Act ("FSIA"), which guarantees a private cause of action for victims of state-
sponsored terrorism. See 28 U.S.C. § 1605A(c). Plaintiffs also allege claims for intentional
infliction of emotional distress C'IIED") arising under District of Columbia ("D.C.") law. The
Court possesses subject matter jurisdiction over plaintiffs' § 1605A(c) claims. But under D.C.
choice-of-law principles, D.C. tort law cannot provide the substantive law governing plaintiffs'
IIED claims. Without evidence of British, South African, and Iraqi law, the Court cannot grant
default judgment on plaintiffs' IIED claims on this record.
After considering plaintiffs' motion, applying relevant case law, and taking judicial notice
of expert reports in related cases, the Court will GRANT IN PART and DENY IN PART
plaintiffs' motion for default judgment against Iran.
I. LEGAL STANDARD
Plaintiffs moved for default judgment against Iran because Iran has not appeared or
defended this lawsuit. See Mot. for Default J. But even when a defendant fails to appear, "the
entry ofa default judgment is not automatic." Mwani v. bin Laden, 417 F.3d I, 6 (D.C. Cir. 2005).
The FSIA expressly provides that "[n]o judgment by default shall be entered ... against a foreign
state ... unless the claimant establishes his claim or right to relief by evidence satisfactory to the
court." 28 U.S.C. § 1608(e); see Jerez v. Republic of Cuba, 775 F.3d 419,423 (D.C. Cir. 2014).
A district court retains discretion "to determine precisely how much and what kinds of evidence
the plaintiff must provide" to establish her claim or right to relief. See Han Kim v. Democratic
People's Republic of Korea, 774 F.3d 1044, 1047 (D.C. Cir. 2014). "[I]ndeed, 'the quantum and
quality of evidence that might satisfy a court can be less than that normally required."' Owens v.
2
Republic ofSudan, 864 F.3d 751, 785 (D.C. Cir. 2017) (quoting Alameda v. Sec '.Y ofHealth, Educ.
& Welfare, 622 F.2d 1044, 1048 (1st Cir. 1980)), vacated and remanded on other grounds sub
nom. Opati v. Republic of Sudan, 140 S. Ct. 160 I (2020).
Additionally, a plaintiff moving for default judgment "must persuade the trial court" that
it may exercise subject matter jurisdiction and personal jurisdiction over the defendant. Karcher
v. Islamic Republic ofIran, 496 F. Supp. 3d 12, 21 (D.D.C. 2019) (citing Thuneibatv. Syrian Arab
Republic, 167 F. Supp. 3d 22, 33 (D.D.C. 2016)). After all, a default judgment "rendered in excess
of a court's jurisdiction is void." Jerez, 775 F.3d at 422. And a default judgment "must not differ
in kind from, or exceed in amount, what is demanded in the pleadings." Fed. R. Civ. P. 54(c).
II. FINDINGS OF FACT
Before this Court can enter default judgment against Iran, it must "reach its own,
independent findings of fact" notwithstanding prior cases implicating the same issues. Rimkus v.
Islamic Republic of Iran, 750 F. Supp. 2d 163, 172 (D.D.C. 2010). "[N]umerous evidentiary
sources" can support a default judgment. Id. at 171. Plaintiffs have submitted affidavits supporting
their uncontroverted factual allegations and expert reports analyzing the alleged EFP attacks. The
Court also takes judicial notice of Lee v. Islamic Republic ofIran and Karcher v. Islamic Republic
of Iran, both of which involved similar EFP attacks. See Lee v. Islamic Republic of Iran, 515 F.
Supp. 3d 475 (D.D.C. 2021); Karcher v. Islamic Republic of Iran, 396 F. Supp. 3d 12 (D.D.C.
2019); see also Fed. R. Evid. 20l(b). With these principles in mind, the Court enters the following
findings of fact.
A. Plaintiffs' Claims
Plaintiffs are sixty-three individuals claiming injuries arising from alleged EFP attacks
between 2004 and 2011. See Comp I. ,r,r 1-64, ECF No. l. Abdul Ghaffar Mughal and the Mughal
3
Plaintiffs are U.S. citizens. Mughal Aff. 111, 3, ECF No. 17-7. All of the remaining plaintiffs are
citizens of Great Britain and South Africa. See generally Mem. in Supp. of Pis.' Mot. for Default
J., ECF No. 17 [hereinafter Mem. in Supp.]. They sued the Islamic Republic of Iran under the
FSIA, alleging that Iran materially supported Iraqi insurgents between 2004 and 2011 by
supporting the "manufacture and widespread distribution" of EFPs in Iraq. Id. at 5.
Though all plaintiffs filed claims under the FSIA, different sets of plaintiffs filed federal
and state-law claims. The Contractor Plaintiffs filed claims under 28 U.S.C. § 1605A(c). These
plaintiffs worked for U.S. contractors operating in Iraq and, at the time of the attacks, were acting
within the scope of their employment. See Roberts Aff., ECF No. 17-3; Botes Aff., ECF No. 17-
4; Crowley Aff, ECF No. 17-5; Jameson Aff., ECF No. 17-6; Mughal Aff., ECF No. 17-7; Riekert
Aff., ECF No. 17-8; Oosthuizen Aff., ECF No. 17-9; Kieser Aff., ECF No. 17-1 O; Steenberg Aff.,
ECF No. 17-11; Botha Aff., ECF No. 17-12; Capazorio Aff., ECF No. 17-13; Du Plessis Aff, ECF
No. 17-14; Bruwer Aff., ECF No. 17-15. The Family Member Plaintiffs asserted a separate IIED
claim against Iran under D.C. tort law. Compl. 11381-83; see Mem. in Supp. 30-34.
B. Service of Process
Plaintiffs first attempted to serve Iran by requesting that the Clerk of the Court-pursuant
to 28 U.S.C. § 1608(a)(3}-mail Iran a summons, complaint, and notice of suit. Aff. Requesting
Foreign Mailing, ECF No. 6. This service failed because no company would ship packages to
Iran. See 06/09/2020 Min. Entry; Notice, ECF No. 7. Plaintiffs then attempted service via
diplomatic channels pursuant to 28 U.S.C. § 1608(a)(4). Aff. Requesting Foreign Mailing, ECF
No. 8. On November 4, 2020, plaintiffs successfully served Iran with a summons, a complaint, a
notice of suit, and translations of each under cover of diplomatic note. Return of Service, ECF
No. 13. Iran failed to answer this complaint or appear in this litigation within sixty days of service.
4
Accordingly, on January 13, 2021, the Clerk of the Court entered default against Iran. Entry of
Default, ECF No. 15.
C. Iran's Connection to the EFP Attacks
The Court will detail Iran's longstanding support of proxy militias in Iraq through a
condensed history. The Court relies on the expert reports and transcripts of the bench trial in
Karcher. See generally Karcher v. Islamic Republic ofIran, No. l 6-cv-232 (CKK) (D.D.C. Aug.
26, 2019). In addition to these materials and the Karcher and Lee decisions themselves, the Court
refers to the expert reports and affidavits submitted by plaintiffs in this case.
i. Expert Testimony
To begin, the Court qualifies six individuals as experts. Plaintiffs provided the Court with
supporting affidavits from two of these experts-Michael Pregent and Donald Wade Barker-and
requested that the Court take judicial notice of the remaining experts and their reports submitted
in Karcher. After reviewing these materials, the Court will grant this request and take judicial
notice of (I) the transcripts of the Karcher bench trial and (2) the Karcher expert reports. See Fed.
R. Evid. 201(b); Rimkus, 750 F. Supp. 2d at 171. The Court therefore qualifies the following
experts in this case.
• Michael P. Pregent. The court qualifies Pregent as an expert in
"intelligence matters, including attribution of terror attacks and ...
evidence collection and analysis in the intelligence field."
12/06/2018 (AM) Tr. 173:3-7; see Expert Aff. of Michael Pregent,
ECF No. 1.7-1 [hereinafter Pregent Aff.]; Expert Report of Michael
P. Pregent, PX-155 [hereinafter Pregent Report, PX-155]; see also
Lee, 518 F. Supp. 3d at 782; Karcher, 396 F. Supp. 3d at 18-19. 3
3
In accordance with Lee and Karcher, the Court uses a modified citation convention for evidence before the Karcher
court. Any references to transcripts refer to those for the bench trial in Karcher. Lee, 518 F. Supp. 3d at 481 n.2.
Exhibits submitted in Karcher are indicated by their title, "PX," and the exhibit number assigned during the Karcher
trial. Id
5
• Captain (Ret.) Donald Wade Barker. The Court qualifies Captain
Barker4 as an expert on "IEDs, EFPs, and counter-IED technology."
12/04/2018 (AM) Tr. 10:8-12; see Expert Aff. of Donald Wade
Barker, ECF No. 17-2 [hereinafter Barker Aff.]; Expert Report of
Capt. (Ret.) Donald Wade Barker, PX-158 [hereinafter Barker
Report, PX-158]; see also Lee, 518 F. Supp. 3d at 482; Karcher, 396
F. Supp. 3d at 17.
• Lieutenant General (Ret.) Michael L. Oates. The Court qualifies
Lieutenant General Oates as an expert "on the tactical and strategic
threats faced by the [U.S.] and Coalition Forces in Iraq [from] 2003
to 2008[,] . . . including the specific threat to US military forces
from IEDs and other ordnance, including EFPs." 12/03/2018 (AM)
Tr. 86:15-22; see Expert Report of Lieutenant Gen. (Ret.) Michael
L. Oates, PX-153 [hereinafter Oates Report, PX-153]; see also Lee,
518 F. Supp. 3d at 481; Karcher, 396 F. Supp. 3d at 18.
• Colonel (Ret.) Leo E. Bradley III. The Court qualifies Colonel
Bradley as an expert on the U.S. military's practices for explosive
ordnance disposal-including "locat[ing], identify[ing], render[ing]
safe ... unexploded ordnance, [and] exploit[ing] and evaluat[ing]
that ordnance." 12/03/2018 (PM) Tr. 7:23-25, 8:1-2, 12:9-13; see
Expert Report of Colonel (Ret.) Leo E. Bradley III, PX-156
[hereinafter Bradley Report, PX-156]; see also Lee, 518 F. Supp. 3d
at 481-82; Karcher, 396 F. Supp. 3d at 17-18.
• Russell L. McIntyre. The Court qualifies McIntyre as an expert "on
IED threats to [U.S.] forces, specifically in Iraq between 2003 and
2011, ... with an additional focus on [EFPs]." 12/06/2018 (AM)
Tr. 64: 16-22; see Expert Report of Russell L. McIntyre, PX-157
[hereinafter McIntyre Report, PX-157]; see also Lee, 518 F. Supp.
3d at 482; Karcher, 396 F. Supp. 3d at 18.
• Colonel (Ret.) Kevin Lutz. The Court qualifies Colonel Lutz as an
expert "in the use of explosive devices, including IEDs and other
ordnance, by transnational terrorist organizations" and "the tactics,
techniques[,] and procedures used by terrorist groups in Iraq
between 2003 and 2011." 12/06/18 (AM) Tr. 15 :4-11; see Expert
Report of Colonel (Ret.) Kevin Lutz, PX-159 [hereinafter Lutz
Report, PX-159]; see also Lee, 518 F. Supp. 3d at 482; Karcher, 396
F. Supp. 3d at 18.
4
For simplicity's sake, the Court omits the titles of plaintiffs' expert witnesses after the first reference.
6
ii. Iran's Support for Proxy Forces in Iraq
Mere months after Shi'a cleric Ayatollah Ruhollah Khomeini came to power in the Iranian
Revolution of 1979, he established the Islamic Revolutionary Guard Corps ("IRGC") to "ensure
there would be no backsliding in implementing [his] vision for an Islamic theocratic government
in Iran." McIntyre Report, PX-157, at4-5. To carry out its charge to "export[] revolution abroad,"
the IRGC created an "external operations directorate" known as the Qods Force. Oates Report,
PX-156, at 11. The Qods Force "trains, advises[,] and logistically supports terrorist and insurgent
movements," including covert special operations activities. McIntyre Report, PX-157, at 6. The
IRGC and Qods Force report directly to the Supreme Leader of Iran. Id at 4; Pregent Aff. ,r 23.
Shortly after its founding, the Iranian government sent IRGC members "to assist the
Lebanese Shi'a community to build a political movement and military" capable of resisting Israeli
forces. McIntyre Report, PX-157, at 7. The IRGC settled on "newly-emerging Hezbollah" as its
target. Id. Hezbollah's leaders "swore an oath of fealty to Iran" and Ayatollah Khomeini as its
Supreme Leader. Id. "In exchange for Hezbollah's unwavering dedication to Iran and its
revolutionary aims, Iran 'bankroll[ed], ann[ed,] and train[ed] Hezbollah." Lee, 518 F. Supp. 3d at
482 (quoting McIntyre Report, PX-157, at 7).
In recognition of Iran's "support for acts of international terrorism" by using these forces,
the United States designated Iran as a state sponsor of terrorism on January 23, 1984. Statement
of Secretary of State George P. Schultz, 49 Fed. Reg. 2836 (Jan. 23, 1984). This designation arose
"in partial response" to Hezbollah's 1984 bombing of~ U.S. Marine barracks in Beirut, Lebanon
that killed and injured hundreds of American troops. Va/ore v. Islamic Republic of Iran, 100 F.
Supp. 2d 52, 67 (D.D.C. 2010); see also McIntyre Report, PX-156, at 6 (ascribing responsibility
for this designation to "actions of the IRGC and the Qods Force"). Similar terrorism-related
7
designations followed for the IRGC and Qods Force. See Karcher, 396 F. Supp. 3d at 22 (listing
designations).
Operation Iraqi Freedom and the U.S. military's occupation of Iraq gave Iran an
opportunity to exploit the power vacuum left open by the downfall of Saddam Hussein's regime.
See Oates Report, PX-153, at 16. Iran quickly moved to develop Shi'a proxies in Iraq to promote
its goals. See id. In 2003, Iran backed a "young and relatively low-ranking Shi'a cleric" named
Muqtada al-Sadr and his Office of the Martyr Sadr ("OMS"), which purported to speak "for Iraq's
disenfranchised Shi'a." Id. at 16-17. After a trip to Tehran, al-Sadr created an armed wing of the
OMS called Jaysh al-Mahdi ("JAM"). 12/03/2018 {AM) Tr. 99:22-100:6; Oates Report, PX-153,
at 17. With financial support from the Qods Force and training from Hezbollah, JAM "rapidly
expanded their territorial control" to encompass much of Baghdad. Oates Report, PX-153, at 17;
see 12/03/2018 (AM) Tr. 100:21-101 :5.
From 2003 to 2006, the IRGC used JAM and smaller militias termed "Special Groups" as
proxies to conduct terrorist operations against coalition forces in Iraq. McIntyre Report, PX-157,
at 16, 37-38. The Special Groups originally remained loyal to al-Sadr but received "training,
weapons[,] and operational direction" directly from Hezbollah and the Qods Force. Oates Report,
PX-153, at 23. Iraqi recruits often "made multiple trips to Iran or to camps in Lebanon maintained
by Hezbollah" to learn paramilitary and weapons skills. Pregent Report, PX-155, at 12. Soon, the
Special Groups splintered from al-Sadr and JAM. In 2006, Iran invited Qais al-Khazali and Layth
al-Khazali, two of al-Sadr's subordinates, to Tehran. McIntyre Report, PX-157, at 39. After Iran
promised to aid their efforts, Qais al-Khazali formed a Special Group named Asayb Ahl al-Haq
("AAH"). Id. at 38-39. AAH received funding from the IRGC, training from Hezbollah, and
weapons supplied by the Qods Force. 12/03/2018 (AM) Tr. 119:24-120:5. In this way, AAH was
8
not an "independent organization" but a "proxy of the Qods Force." Id. 120: 19-22. Another
Special Group was Kata'ib Hezbollah. 5 12/03/2018 (AM) Tr. 123:22-25. Kata'ib Hezbollah was
a "whole-cloth creation of the IRGC." Id. According to Oates, the Qods Force was "the exclusive
director" of Kata'ib Hezbollah's operations and supplied the group with weapons. Id. 124:7-8,
19-21. These weapons included EFPs. Id. 124:5-8. By 2007, the Special Groups "accounted for
almost half of the violence in Iraq" directed at coalition forces. Pregent Report, PX-155, at 12.
And at that time, "Iran, through [the] IRGC and the Qods Force, was estimated to be 'providing
between $750,000 and $3 million worth of equipment and funding to the Special Groups every
month." Lee, 518 F. Supp. 3d at 483 (quoting Pregent Report, PX-155, at 12).
iii. Explosively Formed Penetrators ("EFPs '') in Iraq
The attacks in this case involve a "uniquely lethal weapon" termed an "explosively formed
penetrator." Lee, 518 F. Supp. 3d at 475. EFPs became insurgents' weapon of choice in Iraq to
respond to the "up-armoring" of U.S. military vehicles. Barker Report, PX-158, at 12. At first,
insurgents primarily attacked coalition forces with IEDs. Id. at 13. In response, the U.S. military
developed "heavily-armored [Humvees]" that could withstand IED blasts. Id But EFPs could
still penetrate this armor, so EFP attacks soon became commonplace. Id. at 13-14; see 12/03/2018
(PM) Tr. 23:4-7 (explaining that insurgents used EFPs to respond to vehicles that "could survive
large underbody IEDs"). EFP attacks first occurred in July 2005 and persisted through January
2011. Barker Report, PX-158, at 14.
EFPs' strength lies in their design. An EFP is built within a 3- to 12-inch diameter steel
pipe. Barker Report, PX-156, at 6. One end is welded shut with a steel plate. Id Inside this pipe,
s Kata'ib Hezbollah was an Iraq-based organization, unlike Lebanese Hezbollah. The Court's references to
"Hezbollah" refer to Lebanese Hezbollah unless otherwise noted.
9
high-energy explosives are packed behind a "precision manufactured concave copper disk liner."
Id. at 6. The resulting explosion generates enormous pressure, reshaping the copper liner into a
metal slug traveling at "tremendous speed" with "significant[] ... mechanical power." Id. at 6.
Because copper has a high melting point, the copper liner is "just malleable enough that it will
begin to shape" in midair, "but not so malleable that [it will] fly apart." 12/04/2018 (AM)
Tr. 13 :20-22, 17 :6-8. A single copper slug can "pierce through several inches of military grade
armor." Barker Report, PX-158, at 7. Worse still, a copper slug can "shatter [a] vehicle's armor
and materials inward, sending hundreds or even thousands of razor-sharp shards of Teflon and
steel ripping through the interior department." Id. The resulting heat can "ignite engine fuel and
set vehicles ablaze." Id.
EFPs detonate only after being armed and triggered. Id. at 10. In Iraq, insurgents usually
armed EFPs by remote frequency or command wire. Id. Once armed, an EFP would be triggered
by a passive infrared device. Id. These devices could "detect the heat signature of," for example,
"a passing vehicle," then "send an electrical current that set off the explosion within the EFP' s
casing." Id. Passive infrared sensors were used "almost exclusively ... with EFPs." 12/03/2018
(PM) Tr. 26:13-15. The remote-triggering mechanisms allowed insurgents to "selectively target
U.S. [m]ilitary vehicles and thus avoid civilian casualties." Barker Report, PX-158, at 12. And
the infrared triggers enabled insurgents to camouflage EFPs within the environment-for example,
in fake boulders or fake roadside curbs. See id. at 11.
The U.S. military responded to EFP attacks in several ways. First, the military added armor
to the doors and windows of its armored vehicles and introduced "Mine-Resistant, Ambush
Protected" ("MRAP") vehicles carrying more armor than a typical Humvee. See id. Second, the
military created forensic units to analyze materials collected from EFP blasts and to develop
10
countermeasures against EFPs. Id. at 15-16. These countermeasures included ( l) heated pieces
of metal attached to poles held out in front of the vehicle, termed "Rhinos," and (2) radio jammers
that prevented insurgents from arming the EFPs. Id. at 16.
None of these responses fully succeeded. "[N]o matter how much additional steel was
welded onto U.S. [m]ilitary vehicles, EFPs could still penetrate them." Id. at 15. General David
Petraeus even noted that MRAPs were susceptible to EFPs, explaining that a soldier died "in
eastern Baghdad when an [EFP] pierced the passenger side door of the MRAP in which he was
riding." Id Insurgents also adapted to the U.S. military's countermeasures. After the military
deployed Rhinos on the front of their vehicles, insurgents began "angling [EFPs] backward" to
ensure their EFP charges still hit the targeted vehicles. Id. at 18. And soon after the military began
using radio jammers, "local Shi'a terror cells deployed new technology ... capable of defeating
[the military's] most high-tech [radio-jamming] equipment." Id. at 16.
These sophisticated attacks and countermeasures were "beyond the capacity of individuals
with basic training in IED construction." Lee, 518 F. Supp. 3d at 484 (citations omitted); see
12/03/2018 (PM) Tr. 26:19-27:21 (opining that the "level of engineering and trigonometry"
required to conduct an EFP attack was not "within the abilities of an Iraqi insurgent without outside
assistance"). Expert testimony connected these attacks to Iran. Barker opined that "the Special
Groups and other Iranian-backed local Shi' a terror cells could not have deployed and
implemented" EFP technology "without the active involvement, training, equipment[,] and
support of the IRGC." Barker Report, PX-158, at 16; cf 12/06/2018 (AM) Tr. 29:14-17 (stating
that the Special Groups "could not make these modifications as rapidly as they were doing"
without Iranian assistance). Barker further stated that Iranian agents "would build [EFPs]
complete, [and] bring them [into Iraq] as a complete total system, ready to go." 12/04/2018 (AM)
11
Tr. 44:13-16. Similarly, Oates believed that the Shi'a insurgents' "rapid capability development"
in weapons training stemmed from "external assistance." 12/03/2018 (AM) Tr. 98:5-9.
The U.S. military's forensic analysis also pointed squarely at Iran. The IRGC and Qods
Force "used long-established smuggling routes and trusted Iraqi operatives" to smuggle EFPs into
Iraq and supply them to Special Groups. Id. And "[t]he U.S. military traced much of the
machinery used to manufacture the EFPs, high explosives[,] and [infrared] devices deployed in
Iraq to Iran and its illicit supply chain." Oates Report, PX-153, at 25 (footnote omitted); see
12/06/18 (AM) Tr. 48:11-49:8 (highlighting steel shipments and passive infrared devices that Iran
imported into Iraq). A task force investigating EFPs even traced the "principal source" of EFP
materials, including precision-milled copper liners, to Iran. See 12/03/2018 (AM) Tr. 95:11-
96:16.
D. The Attacks
Finally, the Court turns to the specific attacks in this case. After considering plaintiffs'
affidavits and expert reports, the Court finds Iran responsible for the EFP attacks in this case.
i. November 20, 2004 Attack
On November 20, 2004, a personal security detail was returning to the Baghdad Hotel
after completing an escort mission. Botha Aff. ,r 4. Plaintiff Leon Botha drove the second vehicle
in the convoy. Id. As the convoy crossed the Olympic Bridge, an explosion detonated on the side
of Botha's vehicle. Id ,r 5. The explosion cast shrapnel throughout the vehicle, hitting Botha in
the face and neck and giving him a traumatic brain injury. Id. ,r,r 6-7.
Troops recovered copper slugs that had lodged in the driver's side of the vehicle and found
copper shell fragments from the explosion site. Barker Aff. ,r 41. Barker also attested that the
penetrations through the vehicle's door and windshield were "consistent with the damage" that
12
would "result from an effectively fired EFP." Id. ,r 39. This evidence led Barker to conclude
"without any reasonable doubt" that "this attack involved an EFP ... designed, manufactured, and
distributed by Hezbollah [or] the IRGC." Id. ,r 42. Based on the evidence before the Karcher
court and the representations of plaintiffs' experts, the Court finds Iran responsible for the
November 20, 2004 EFP attack by supporting proxy forces who conducted the attack.
ii. May 16, 2005 Attack
On May 16, 2005, plaintiffs Jaco Botes and Johann Steenberg traveled in Iraq as part of a
convoy with a personal security detail. Botes Aff. ,r 4. Botes commanded the lead vehicle. Id
Steenberg commanded the third vehicle in the convoy. Steenberg Aff. ,r 4. While the convoy was
traveling, an explosive device detonated about four feet away from the driver's side of the lead
vehicle. Id. ,r 5. The blast instantly killed the driver and two passengers in Botes's vehicle and set
the car ablaze. Botes Aff. ,r 5. As Botes exited the car, he was hit in the back with three rounds
from an AK-47. Id. ,r 6. His bulletproof vest dulled the impact of these rounds and helped him
survive. Id. Botes sustained shrapnel wounds to his left side, a large bruise on his face, and a burst
eardrum. Id ,r 8.
Barker has attested that this explosive attack was from an EFP. Steenberg provided photos
showing the vehicle damaged in the attack. Steenberg Aff., ECF No. 17-11 at 7-8. Because this
photo shows "clean penetration[s] through steel armor" and "holes on both sides of the vehicle,"
Barker concluded that the projectiles from the explosion were "capable of traveling cleanly
through the steel armor, the entire vehicle, and cleanly through steel armor again on the other side."
Barker Aff. ,r 46. These "telltale marks of EFP damage" led Barker to believe that the penetrations
could only "have been made by an EFP device ... designed, manufactured, and distributed by
Hezbollah [or] the IRGC." Id. ,r 47. Based on the evidence before the Karcher ~ourt and the
13
representations of plaintiffs' experts, the Court finds Iran responsible for the May 16, 2005 EFP
attack by supporting proxy forces who conducted the attack.
iii. November 14, 2005 Attack
On November 14, 2005, plaintiff Pierre Du Plessis traveled in Iraq as part of a convoy with
a personal security detail. Du Plessis Aff. ,r 5. When the convoy drove past the Iranian embassy,
an explosive device detonated close to the vehicle behind Du Plessis. Id. ,r 6. The damaged vehicle
burst into flames. Id. A close friend of Du Plessis exited the vehicle "engulfed in flames," and
Du Plessis tried to put out the fire but could not. Id. ,r 7. Three other passengers in the damaged
vehicle died because of the explosion-one from the blast itself, the others from their resulting
injuries. Id. ,r 8. Du Plessis suffers "ongoing flashbacks and nightmares" regarding the explosion
and was subsequently diagnosed with post-traumatic stress disorder. Id. ,r 10.
Botha and Steenberg responded to the scene three minutes after the explosion. Botha Aff.
,r 1O; Steenberg Aff. ,r 10. Both plaintiffs were responsible for securing the area and cleaning up
the extensive casualties and deaths caused by the explosion. Botha Aff. ,r 1O; Steenberg Aff. ,r 10.
Barker attested that "signs of EFP damage" were "clearly visible" in photos submitted by
Du Plessis showing the vehicle damage. Barker Aff. ,r 49. A "clean circular penetration through
the vehicle's transparent armor" led Barker to conclude that the explosion "was likely an EFP
attack." Id. ,r 51. Another "circular penetration that carried cleanly through the steel armor of the
vehicle" reinforced Barker's conclusion. Id. ,r 52. Because of this evidence and "the location of
the attack," Barker posited that the explosion "was caused by an EFP device, designed,
manufactured, and distributed by Hezbollah [or] the IRGC." Id. ,r 55. Based on the evidence
before the Karcher court and the representations of plaintiffs' experts, the Court finds Iran
14
responsible for the November 14, 2005 EFP attack by supporting proxy forces who conducted the
attack.
iv. January 4, 2006 Attack
On January 4, 2006, plaintiff George Kieser traveled in a convoy returning to the Al Sadeer
Hotel in Baghdad. Kieser Aff. ,r 4. As the convoy approached the Olympic Bridge, an explosion
detonated behind Kieser that disabled a vehicle in the convoy. Id ,r 5. While Kieser helped set
up a perimeter around the vehicle, a second explosion detonated close to Kieser. Jd ,r 7. This
explosion knocked Kieser unconscious and he fell to the ground. Id As a result, Kieser suffered
an injured knee, damage to his hearing, and a traumatic brain injury. Id.
In his affidavit, Barker attested that photos of the incident showed "classic evidence of an
EFP attack." Barker Aff. ,r 60. A photo of the vehicle's door armor showed "full penetration ... ,
with little to no material deformation," which "perfectly matches" the damage that EFP slugs
cause. Id. ,r 59. Copper residue visible on the door armor and copper fragments visible in other
photos, in Barker's view, also evince an EFP attack. Id. ,r 60. Barker therefore had "a high degree
of certainty" that the attack "was carried out using an EFP device designed, manufactured, and
distributed by Hezbollah [or] the IRGC." Id. ,r 61. Based on the evidence before the Karcher
court and the representations of plaintiffs' experts, the Court finds Iran responsible for the January
4, 2006 EFP attack by supporting proxy forces who conducted the attack.
v. January 2006 Attack
On or around January 2006, plaintiff Dean Capazorio traveled in a convoy from the Green
Zone to the Baghdad Hotel. Capazorio Aff. ,r 5. Capazorio was the rear gunner in the last vehicle
of the convoy. Id. When the group turned onto Abu Nawas Street, a device exploded next to the
third vehicle in the convoy. Id ,r 6. The explosion blew out the windows in Capazorio's vehicle.
15
Id. Capazorio exited his vehicle and returned small arms fire against the insurgents attacking the
convoy. Id. The explosion caused permanent damage to Capazorio's hearing. Id. ,r 8.
According to Capazorio, members of the U.S. military informed his commander that the
explosion was an EFP attack. Id. ,r 7. These troops stated that the EFP had been camouflaged in
the curb of the road and directionally fired. Id. The troops also stated that they found copper
residue inside and around the damaged vehicle. Id. Barker concluded, based on these statements
and photos showing the damaged vehicle, that "it is far more likely than not" that this attack
"involved an EFP device that was designed, manufactured, and distributed by Hezbollah [or] the
IRGC." Barker Aff. ,r 68. A photo of the confirmed blast site shows a curb that is "relatively
undamaged" despite its proximity to the explosion, indicating "the use of a directional weapon"
like an EFP. Id. ,r 64. Photos show damage to the vehicle "consistent with an upward angled
impact from an EFP device hidden in a roadside curb" and "what appears to be copper residue" on
the steel frame of the vehicle. Id. ,r 66. Based on the evidence before the Karcher court and the
representations of plaintiffs' experts, the Court finds Iran responsible for the January 2006 EFP
attack by supporting proxy forces who conducted the attack.
vi. March 29, 2006 Attack
On March 29, 2006, plaintiff Schalk Bruwer traveled as part of a convoy escorting
personnel to the Baghdad Police Academy. Bruwer Aff. ,r 4. Bruwer drove the lead vehicle in the
convoy. Id. Steenberg drove the vehicle behind Bruwer. Steenberg Aff. ,r 11. The convoy had
to travel through a tunnel to reach its destination. Bruwer Aff. ,r 5. Roughly halfway through the
tunnel, an explosion occurred near Bruwer's vehicle. Id ,r 6. The vehicle caught fire and became
disabled soon after. Id. Steenberg used his vehicle to push the disabled lead vehicle out of the
tunnel. Steenberg Aff. ,r 11. Once out of the tunnel, Bruwer helped pull a passenger out of his
16
vehicle. Bruwer Aff. ,r,r 6-7. Steenberg carried a passenger from the vehicle to a medic, injuring
his knee in the process. Steenberg Aff. ,r 11. As a result of the explosion, Bruwer suffered shrapnel
wounds to his arms and body. Bruwer Aff. ,r,r 6-8. Steenberg sustained an injured knee when
carrying one of the victims to a medic. Steenberg Aff. ,r 11.
Capazorio arrived soon after the explosion as part of a team securing the area. Capazorio
Aff. ,r 9. This incident caused extreme anxiety and stress for Capazorio and contributed to his
ultimate diagnosis of post-traumatic stress disorder. Id ,I,I IO, 12.
Bruwer and Steenberg attested that investigators told them that the explosion stemmed
from an EFP camouflaged in polystyrene made to appear as part of the curb. Bruwer Aff. ,r IO;
Steenberg Aff. ,r 11. This method of camouflage "was commonly used with EFP devices" and
"unlikely to be used" with other forms explosive weapons used by Iraqi militias in 2006. Barker
Aff. ,r 74. Photos of the damaged vehicle showed "tightly distributed penetrations" indicating a
directed blast. Id. ,r 71. Based on the evidence before the Karcher court and the representations
of plaintiffs' experts, the Court finds Iran responsible for the March 29, 2006 EFP attack by
supporting proxy forces who conducted the attack.
vii. June 15, 2006 Attack
On June 15, 2006, plaintiff Christiaan Oosthuizen traveled in a convoy that was leaving
the Baghdad Police Academy. Oosthuizen Aff. ,r 4. When the convoy approached Olympic
Bridge, Oosthuizen noticed that Iraqi police officers had stopped nearby traffic. Id ,r 5. An
explosion then detonated near the right side of Oosthuizen' s vehicle. Id. ,r 6. Oosthuizen suffered
shrapnel wounds to his face and neck, a traumatic loss of hearing, and a concussion as a result of
the explosion. Id ,r 7.
17
Photos of the incident show "total penetration of the steel frame" of the damaged vehicle
from the projectile in the explosion. Barker Aff. ,r 79. The "clean exit hole" indicates that the
projectile "was still traveling at a speed significant enough to cleanly penetrate the driver's side
transparent armor." Id ,r 80. In Barker's opinion, no weapon available to Iraqi militias in 2006
could cause this penetration "[a]side from an expertly manufactured, assembled, and detonated
EFP device." Id. Barker therefore attested that the penetrations in this attack "could only have
been made by an EFP device designed, manufactured, and distributed by Hezbollah [or] the
IRGC." Id. ,r 81. Based on the evidence before the Karcher court and the representations of
plaintiffs' experts, the Court finds Iran responsible for the June 15, 2006 EFP attack by supporting
proxy forces who conducted t~e attack.
viii. March 16, 2010 Attack
On March 16, 20 I 0, plaintiffs Allan Roberts, Steven Crowley, and John Jameson traveled
in Iraq as part of a convoy escorting personnel. Roberts Aff. ,r 5; Crowley Aff. ,r 4; Jameson Aff.
, 4. While stopped at an Iraqi police checkpoint, an explosive device detonated near the left side
of their vehicle. Roberts Aff. , 6. The device had been placed inside of the bastion lining the side
of the checkpoint. Crowley Aff., 5. The explosion scattered a large metal slug, shrapnel, and
other debris inside the vehicle. Id ,r 6.
The explosion and shrapnel amputated Roberts' s right leg and caused a severe wound to
his left leg. Roberts Aff. ,r 7. Surgeons eventually had to amputate Roberts's left leg. Id. The
explosion partially amputated Crowley's left leg. Crowley Aff. ,r 7. Jameson suffered injuries to
his knees, hips, back, neck, and shoulder, as well as damage to his eardrums and a traumatic brain
injury from shrapnel hitting his head. Jameson Aff. ,r 6.
18
An explosive-ordnance-disposal team prepared a report stating that the March 16, 20 IO
explosion stemmed from an EFP. See ECF No. 17-3 at 5. Barker confirmed this assessment.
Barker Aff. ,r 85. Photos depict a "pinpointed" entry point "strongly indicative" of an EFP, as
other IEDs would have "distributed far more widespread damage to the impact area." Id. ,r 87.
And the placement of the device-"two feet off the ground and directionally focused"-was "more
consistent with an EFP device than any other plausible option." Id. ,r 88. Barker therefore attested
that the pinpoint entry hole "could only have been made by an EFP device designed and distributed
by Hezbollah [or] the IRGC." Id ,r 89. Based on the evidence before the Karcher court and the
representations of plaintiffs' experts, the Court finds Iran responsible for the March 16, 2010 EFP
attack by supporting proxy forces who conducted the attack.
ix. June 23t 2011 Attack
On June 23, 2011, a convoy left the university campus at Mustansiriya University in
Baghdad. Mughal Aff. ,r 5; Riekert Aff. ,r 4. Plaintiff Abdul Ghaffar Mughal had been offering
consulting and advising services at the university. Mughal Aff. ,r 4. Plaintiffs Mughal and George
Riekert traveled in the second vehicle in the convoy. Id. ,r 5; Riekert Aff. ,r 5. During the journey,
an explosive device detonated on the left side of the vehicle. Riekert Aff. ,r 7. The explosion
killed one of the passengers instantly. Id ,r 8. Mughal suffered a broken hand, damaged hearing,
and injuries from the shrapnel. Mughal Aff. ,r 7. The explosion caused injuries to Riekert' s head,
neck, and back, and shrapnel from the blast gave Riekert multiple wounds. Riekert Aff. ,r 7; see
id., ECF No. 17-8 at 9-1 l.
A photo of the damaged vehicle showing "clean penetration of a large slug through
transparent armor." Barker Aff. ,r 92. Barker also reviewed dash-cam footage of the attack
showing that the blast detonated at least thirty feet away from the vehicle. Id. ,r 93. The
19
combination of these factors-that a compact slug impacted the armor "at an extremely high rate
of speed"-led Barker to conclude that the explosion stemmed from "an EFP device designed,
manufactured, and distributed by Hezbollah [or] the IRGC." Id ,I 94. Based on the evidence
before the Karcher court and the representations of plaintiffs' experts, the Court finds Iran
responsible for the June 23, 2011 EFP attack by supporting proxy forces who conducted the attack.
III. CONCLUSIONS OF LAW
This Court's conclusions of law will proceed in several parts. First, the Court will address
why it has subject matter jurisdiction under the FSIA' s terrorism exception. Second, the Court
will explain why it may validly exercise personal jurisdiction over Iran in this case. Third and
fourth, the Court will discuss potential issues of timeliness and venue. Finally, the Court will
assess whether plaintiffs have stated cognizable claims for relief under § l 605A(c) of the FSIA or
under applicable tort law. As the Court will explain, the Contractor Plaintiffs and the Mughal
Plaintiffs have validly stated claims for relief. But the Family Member Plaintiffs have alleged
claims only under D.C. tort law. Applicable choice-of-law principles dictate that D.C. law should
not apply to this dispute, meaning that the Court cannot grant default judgment on these claims.
A. Subject Matter Jurisdiction
The FSIA is the "sole basis for obtaining jurisdiction over a foreign state in our courts."
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,434 (1989). Under the FSIA,
federal district courts have original subject matter jurisdiction over ( 1) nonjury civil actions (2) for
claims seeking relief in personam (3) against a foreign state (4) when the foreign state is not
entitled to immunity under the FSIA. See 28 U.S.C. § 1330(a). Plaintiffs meet the first three
requirements here. They do not demand a jury trial, claim civil causes of action, and assert a right
to in personam relief against a foreign state-the Islamic Republic of Iran.
20
That leaves the question of Iran's sovereign immunity. Foreign states are presumptively
immune from jurisdiction subject to several enumerated exceptions. See 28 U .S.C. § 1604. A
district court "has subject matter jurisdiction over a suit against a foreign state if--and only if.-
[a] plaintiffs claim falls within" one of these exceptions. Odhiambo v. Republic of Kenya,
764 F.3d 31, 34 (D.C. Cir. 2014). "[I]fno exception applies, the district court has no jurisdiction."
Id. Since federal courts must consider issues of subject matter jurisdiction sua sponte, Gonzalez
v. Thaler, 565 U.S. 134, 141 (2012), a district court adjudicating FSIA claims must decide whether
an exception to immunity applies "even if the foreign state does not enter an appearance,"
Verlinden B. V. v. Central Bank ofNigeria, 461 U.S. 480, 493 n.20 ( 1983).
Plaintiffs argue that Iran's conduct falls within the FSIA's terrorism exception. The FSIA
states that a foreign state has no immunity:
in any case ... in which [ 1] money damages are sought [2] against
a foreign state [3] for personal injury or death [4] that was caused
by [5] 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 engaged in by an official, employee, or agent of such foreign state
while acting in the scope of his or her office, employment, or
agency.
28 U.S.C. § 1605A(a)(l). This exception applies only if plaintiffs meet three additional
requirements. First, the foreign state must have been designated a state sponsor of terrorism when
the underlying attack occurred or designated as a result of the attack. Id § 1605A(a)(2)(A)(i)(I).
Second, at the time of the underlying attack, the "claimant or victim" must have been a "national
of the United States," a "member of the armed forces," or an employee or contractor of the United
States Government acting within the scope of her employment. Id § l 605A(a)(2)(A)(ii). Third,
if "the act occurred in the foreign state against which the claim has been brought," the claimant
21
must have "afforded the foreign state a reasonable opportunity to arbitrate" the claim. Id.
§ 1605A(a)(2)(A)(iii).
Plaintiffs undoubtedly meet several of these elements. They seek money damages against
Iran, a foreign state. See Compl. ,r,r 220-384. Plaintiffs allege personal injuries-both physical
and emotional-arising out of EFP attacks. 6 See id. Iran has been designated a state sponsor of
terrorism since 1984, including at the time of the EFP attacks. See Determination Pursuant to
Section 6(i) of the Export Administration Act of 1979-Iran, 49 Fed. Reg. 2836 (Jan. 23, 1984).
And the EFP attacks took place in Iraq-not Iran-meaning that plaintiffs need not afford Iran an
opportunity to arbitrate these claims.
Plaintiffs are also "claimant[s] orvictim[s]" within the meaning of the FSIA. See 28 U.S.C.
§ l 605A(a)(2). The Contractor Plaintiffs were contractors of the United States government acting
within the scope of their employment. See supra Section II.A (noting that plaintiffs were
employees of U.S. contractors); 28 U.S.C. § 1605A(a)(2)(A}(ii). And § 1605A(a)(2) includes
"those whose claims arise out of those injuries" suffered as a result of a terrorist attack "but who
might not be victims themselves." Va/ore, 700 F. Supp. 2d at 68; accord Leibovitch v. Islamic
Republic of Iran, 697 F.3d 561, 572 (7th Cir. 2012). The Family Member Plaintiffs' claims for
emotional distress originate from the EFP attacks on the Contractor Plaintiffs. This causal link
brings them within the scope of "claimant[s]" contemplated by the FSIA. See 28 U.S.C.
§ l 605A(a)(2).
6
The FSIA does not restrict the "personal injury or death" requirement to injury or death suffered directly by a
claimant. Va/ore, 700 F. Supp. 2d at 66. Rather, the injury or death "must merely be the basis of a claim for which
money damages are sought." Id (citing 28 U.S.C. § 1605A(a)(l)).
22
Three elements remain. The Court may properly exercise subject matter jurisdiction if Iran
(I) provided "material support or resources" for (2) acts of extrajudicial killing that (3) caused
plaintiffs' injuries. See 28 U.S.C. § 1605A(a)(I).
i. Material Support or Resources
First, plaintiffs must show that Iran provided "material support or resources" for the EFP
attacks that resulted in their injuries. See 28 U.S.C. § 1605A(a)(I). The FSIA defines "material
support or resources" as:
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 ... , and
transportation, except medicine or religious materials.
18 U.S.C. § 2339A(b)(l) (emphasis added); see 28 U.S.C. § 1605A(h)(3) (adopting definition of
"material support or resources" found in 18 U.S.C. § 2339A). The material support or resources
must have been provided "by an official, employee, or agent of [the] foreign state" acting in the
scope of her "office, employment, or agency." 28 U.S.C. § 1605A(a)(l).
Plaintiffs satisfy this element. Multiple experts have testified that the Special Groups could
not have conducted EFP attacks without the support of the IRGC and Qods Force. See supra
Section 11.C. This support included "millions of dollars of funding, training, and advanced
weaponry." Lee, 518 F. Supp. 3d at 493; see, e.g., Pregent Report, PX-155, at 12 (detailing the
training programs and funding Iran provided to Special Groups); Oates Report, PX-153, at 24--25
(explaining that coalition forces discovered caches of EFP materials traceable to Iranian
manufacturers). And, as other courts in this District have held, the Qods Force is "at least an agent
of Iran," if not a governmental entity "such that individuals working for it would be officials or
employees of Iran." Karcher, 396 F. Supp. 3d at 55; see Blais v. Islamic Republic ofIran, 459 F.
23Supp. 2d 40, 60-61 (D.D.C. 2006) (finding the IRGC to be a governmental entity). Plaintiffs have
therefore proven that that Iran-acting through the IRGC and Qods Force-materially supported
the EFP attacks that resulted in their injuries.
ii. Extrajudicial Killings
Second, plaintiffs must demonstrate that the underlying terrorist attacks are "act[s] of ...
extrajudicial killing" under the FSIA. See 28 U.S.C. § 1605A(a)(l). The FSIA defines an
"extrajudicial killing" by reference to the Torture Victim Protection Act of 1991 ("TVPA"). See
28 U .S.C. § 1605A(h)(7). An "extrajudicial killing"-as defined by the TVPA-is "a deliberated
killing not authorized by a previous judgment" of a "regularly constituted court" that "afford[s] all
the judicial guarantees ... recognized as indispensable by civilized peoples." Terrorist Victim
Protection Act, Pub. L. No. 102-256, l 06 Stat. 73, § 3(a) (1992). Thus, an "extrajudicial killing"
contains three elements: "( l) a killing; (2) that is deliberated; and (3) is not authorized by a
previous judgment pronounced by a regularly constituted court." Owens, 864 F .3d at 770. The
EFP attacks meet all three requirements of an extrajudicial killing.
Though many of the EFP attacks in this case did not result in death, attempted extrajudicial
killings may still constitute "act[s] of ... extrajudicial killing" under§ 1605A(a)(l). The text of
§ l605A(a)(l) reads as follows:
A foreign state shall not be immune . . . in any case . . . in which
money damages are sought against a foreign state for personal injury
or death that was caused by an act of . .. extrajudicial killing ... or
the provision of material support or resources for such an act.
28 U.S.C. § 1605A(a)(l) (emphasis added). The FSIA does not waive immunity when a foreign
state supports an extrajudicial killing, but rather an "act of' extrajudicial killing. Id. And it is a
"cardinal principle" of statutory interpretation that "courts 'must give effect, if possible, to every
clause and word of a statute,"' Loughrin v. United States, 573 U.S. 351, 358 (2014) (quoting
24
Williams v. Taylor, 529 U.S. 362, 404 (2000)), suggesting that the "act of' language inserted in
§ 1605A(a)(l) is significant. The term "act of' could be read multiple ways. An "act" could refer
to "a thing done" or a specific "deed." Act, New Oxford English Dictionary (2d ed. 2005). But an
"act" might also refer to "[t]he process of doing" something. Act, Oxford English Dictionary (2d
ed. 1989); accord Act, Merriam-Webster's Collegiate Dictionary ( I 0th ed. 2005) (defining "act"
as both "the doing of a thing" and "the process of doing"). Plausibly read, § 1605A(a)(I) could
encompass (I) the specific deed of an extrajudicial killing or (2) the process of committing an
extrajudicial killing. But the process of committing an extrajudicial killing does not imply that
death results-meaning that an attempted extrajudicial killing could constitute an "act of
extrajudicial killing."
In light of this ambiguity, the Court will interpret§ 1605A(a)(l) broadly. The D.C. Circuit
has held that courts should "interpret [the FSIA's] ambiguities flexibly and capaciously" because
of Congress's intent to "lighten the jurisdictional burdens borne by victims of terrorism seeking
judicial redress" by passing§ 1605A. Van Beneden v. Al-Sanusi, 109 F.3d 1165, 1167 & n.4 (D.C.
Cir. 2013). And sister courts in this District have consistently held that attempted extrajudicial
killings fall within the meaning of§ 1605A(a)(l)'s text. See, e.g., Lee, 518 F. Supp. 3d at 491
(concluding that§ 1605A(a)(l)'s text and "the court's mandate to construe ambiguities in the FSIA
broadly" permitted jurisdiction for attempts to commit extrajudicial killings); Karcher, 396 F.
Supp. 3d at 58 (interpreting § I 605A(a)(l) broadly since its text "does not expressly address
attempts to commit acts"). The Court concludes likewise. Attempted extrajudicial killings are
"acts of extrajudicial killing" within the meaning of§ 1605A(a)(l). See Lee, 518 F. Supp. 3d at
491; Karcher, 396 F. Supp. 3d at 58. And attacks with EFPs-which wrought death upon many
victims in Iraq-are attempted extrajudicial killings.
25
EFP attacks are also "deliberated." A deliberated killing is "one undertaken with careful
consideration, not on a sudden impulse." Lee, 5 l 8 F. Supp. 3d at 491 (quoting Salzman v. Islamic
Republic ofIran, 2019 WL 4673761, at *13 (D.D.C. Sept. 25, 2019); cf. Owens, 864 F.3d at 770
(finding a killing "deliberated" when it involved "substantial preparation, meticulous timing, and
coordination across multiple countries in the region"); Mamani v. Berzain, 654 F.3d 1148, 1155
(11th Cir. 2011) (interpreting "deliberated" under the TVPA as "being undertaken with studied
consideration and purpose"). Expert testimony demonstrates that an EFP attack requires
significant planning, coordination, and timing. See supra Section 11.C. A perpetrator must place
the explosive device (often hiding it within boulders, debris, or roadside curbs), keep a sharp
lookout for the target, and arm the device remotely as the target approaches. See id. The thought
and consideration required to conduct an EFP attack are hallmarks of deliberation.
Additionally, no evidence on the record suggests that the EFP attacks in this case were
authorized by a judgment pronounced by a court oflaw. The Court therefore concludes that Iran's
material support for EFP attacks qualify as material support for acts of extrajudicial killing.
iii. Causation
To prove causation under the FSIA's terrorism exception, a plaintiff must show that the
foreign state's actions proximately caused the alleged injuries. Owens, 864 F.3d at 794. Proximate
cause requires "some reasonable connection between the act or omission of the defendant and the
damage which the plaintiff has suffered." Id (quoting Kilburn v. Socialist People's Libyan Arab
Jamahiriya, 376 F.3d 1123, 1128 (D.C. Cir. 2004)). This inquiry contains two elements: (1) the
defendant's actions "must be a 'substantial factor' in the sequence of events" leading to the injury;
and (2) the injury must have been "'reasonably foreseeable or anticipated as a natural consequence'
of the defendant's conduct." Id. (quoting Rothstein v. UBS, 708 F.3d 82, 91 (2d Cir. 2013)).
26
Plaintiffs have shown that Iran proximately caused their injuries. First, Iran's material
support for Iraqi insurgents was a substantial factor in the chain of events leading to plaintiffs'
injuries. As Judge Mehta explained in Lee:
Iran provided the funding, training, and weaponry that was used to
injure [p]laintiffs. This support was particularly crucial: as the U.S.
military developed countermeasures to make EFP attacks less lethal,
Iran's training, technology, and provision of resources equipped
insurgents with EFPs that could respond to U.S. countermeasures
and inflict maximum damage.
Lee, 518 F. Supp. 3d at 493 (citations omitted); see Pregent Report, PX-155, at 12; Oates Report,
PX-153, at 24--25; 12/03/2018 (AM) Tr. 98:5-9. Second, plaintiffs' injuries were reasonably
foreseeable consequences oflran's proliferation ofEFP materials in Iraq. Iran not only distributed
the necessary materials to create EFPs to Iraqi insurgents, but also assisted those insurgents with
circumventing the U.S. military's later-developed countermeasures. See 12/06/2018 (AM)
Tr. 48:21--49:12 (explaining that the U.S. military traced devices that "wreaked havoc" on EFP
countermeasures to Iran). By providing financial support, training, and weapons to Iraqi
insurgents, Iran must have reasonably anticipated that its actions would lead to serious injuries or
deaths among coalition forces. See Lee, 518 F. Supp. 3d at 494 (concluding that Iran "reasonably
anticipated" serious injuries and deaths to U.S. troops based on its "financial support" and
"provision of evolving and ever-more lethal weaponry" to Iraqi insurgents); Karcher,
396 F. Supp. 3d at 56-57 (holding that plaintiffs' harms were reasonably foreseeable when Iran
intended "to kill people, not just disable vehicles"). In the same vein, the Family Member
Plaintiffs' emotional harms were a reasonably foreseeable consequence of Iran's material support
for potentially lethal EFP attacks in Iraq. See Lee, 518 F. Supp. 3d at 494 (citing Salzman, 2019
WL 4673761, at *14).
27
Accordingly, the Court concludes that Iran proximately caused plaintiffs' injuries through
its material support for the attempted extrajudicial killings of the Contractor Plaintiffs. Since
plaintiffs have proven each element of the FSIA's terrorism exception, the Court possesses subject
matter jurisdiction over this dispute under 28 U.S.C. § 1330(a) and§ 1605A(a)(l).
B. Personal Jurisdiction
The Court now turns to its personal jurisdiction over Iran. A court has "an independent
obligation ... to satisfy itself of its personal jurisdiction before entering a default [judgment]
against a missing party." Kaplan v. Cent. Bank of the Islamic Republic ofIran, 896 F .3d 50 l, 512
(D.C. Cir. 2018). Federal courts have personal jurisdiction over a foreign state if (l) the court has
subject matter jurisdiction pursuant to 28 U.S.C. § 1330(a), and (2) plaintiffs properly effectuate
service under 28 U.S.C. § 1608(a). See 28 U.S.C. § 1330(b). As explained above, the Court
possesses subject matter jurisdiction over this dispute under § 1330(a). The remaining issue is
whether plaintiffs followed the procedures required by § l 608(a).
The FSIA prescribes four valid methods of service. See 28 U.S.C. §. l 608(a). If a method
of service is unavailable or unsuccessful, a plaintiff may attempt the next method listed. Worley
v. Islamic Republic ofIran, 75 F. Supp. 3d 311,327 (D.D.C. 2014). First, a plaintiff should follow
"any special arrangement[s]" for service-e.g., contractual provisions-between the plaintiff and
the foreign state. 28 U.S.C. § 1608(a)(l). Second, a plaintiff may serve a defendant state "in
accordance with an applicable international convention" on service of process. Id. § l 608(a)(2).
Neither option is available in this case. See Lee, 518 F. Supp. 3d at 495.
Plaintiffs thus attempted service under § 1608(a)(3), which permits service by mailing
copies of the complaint, summons, and notice of suit on a defendant state's head of ministry of
foreign affairs. See 28 U.S.C. § 1608(e)(3); Aff. Requesting Foreign Mailing, ECF No. 7. When
28
that attempt failed, plaintiffs tried to serve Iran via diplomatic channels. See id. § 1608(a)(4); Aff.
Requesting Foreign Mailing, ECF No. 8. According to the Department of State, these documents
were served on November 4, 2020, under cover of diplomatic note. Return of Service, ECF No. 13.
The Court concludes that plaintiffs have complied with § 1608(a)(4) and properly served Iran in
accordance with the FSIA. The Court may exercise personal jurisdiction over the parties.
C. Timeliness
Actions under the FSIA' s terrorism exception "may be brought or maintained" only if filed
"not later than" the later of (1) "10 years after April 24, 1996" or (2) "l 0 years after the date on
which the cause of action arose." 28 U.S.C. § 1605A(b). But when a defendant state "fail(s] to
enter an appearance or submit a filing at any stage of [a] case[]," it forfeits any potential statute-
of-limitations defenses. Maalouf v. Islamic Republic of Iran, 923 F .3d l 095, 1108 (D.C. Cir.
2019). A federal court has no authority to raise this statute of limitations defense "on behalf of an
entirely absent defendant." Id at 1112. Because Iran has not appeared in this case-and, therefore,
has not raised a statute-of-limitations defense-the Court will not enforce the limitations period
sua sponte.
D. Venue
For civil actions "against a foreign state or political subdivision thereof," venue is proper
"in the United States District Court for the District of Columbia." 28 U.S.C. § 139l(f)(4). Iran is
a "foreign state" as defined by § 1603 of the FSIA. See 28 U.S.C. § l 603(a); e.g., Henkin v. Islamic
Republic of Iran, No. 18-cv-1273, 2021 WL 2914036 (D.D.C. July 12, 2021). Since Iran is a
foreign state, the Court concludes that venue is proper in this District.
29
E. Liability and Choice-of-Law Issues
Finally, the Court will assess Iran's liability for plaintiffs' injuries. As explained above,
plaintiffs pleaded two sets of claims: (1) claims arising under§ 1605A(c)'s private cause of action
and (2) claims that Iran committed IIED against the Family Member Plaintiffs. See supra Section
I.A. The Contractor Plaintiffs and the Mughal Plaintiffs properly fall within the FSIA's private
cause of action, and the Court will enter default judgment on their claims. But the Court cannot
enter default judgment on the Family Member Plaintiffs' IIED claims. Plaintiffs argue that D.C.
tort law should govern the IIED claims. The Court disagrees. Under D.C.'s choice-of-law
principles, D.C. law must give way to the law of the Family Member Plaintiffs' domiciles or the
law of Iraq.
i. Plaintiffs'§ 1605A(c) Claims
The FSIA provides a private cause of action for victims of state-sponsored terrorism in
28 U.S.C. § 1605A(c). "There is almost total 'overlap between the elements of[§ 1605A(c)'s]
cause of action and the terrorism exception to foreign sovereign immunity."' Fritz v. Islamic
Republic ofIran, 320 F. Supp. 3d 48, 86-87 (D.D.C. 2018) (alterations in original) (quoting Foley
v. Syrian Arab Republic, 249 F. Supp. 3d 186,205 (D.D.C. 2017). But§ 1605A(c)'s cause of
action is limited to (1) U.S. nationals, (2) members of the U.S. armed forces, or (3) employees of
the U.S. government or of a U.S. contractor acting within the scope of their employment. See
28 U.S.C. § 1605A(c).
As plaintiffs acknowledge, Mem. in Supp. 29, only the Contractor Plaintiffs and the
Mughal Plaintiffs qualify for the private cause of action in§ 1605A(c). The Contractor Plaintiffs
were employees of U.S. contractors acting within the scope of their employment at the time of the
attack. See supra Section II.A (citing plaintiffs' affidavits); 28 U.S.C. § 1605A(c)(3). And Abdul
30
Ghaffar Mughal and his family are all U.S. citizens. See 28 U.S.C. § 1605A(c)(I). The remaining
plaintiffs-immediate family members of the Contractor Plaintiffs-are all foreign citizens. See
supra Section II.A. Notwithstanding the Mughals, none of the Family Member Plaintiffs meet the
statutory requirements of § l 605A(c). Since the Court has already established its subject matter
jurisdiction over the qualifying plaintiffs' claims, see supra Section III.A, the Court concludes that
Iran is liable to the Contractor Plaintiffs and the Mughal Plaintiffs under § I 605A(c) for their
injuries suffered from EFP attacks in Iraq.
ii. The Family Member Plaintiffs' //ED Claims
The Family Member Plaintiffs alleged that Iran committed "intentional and reckless,
extreme and outrageous" acts that caused them "severe emotional distress," but did not identify
the substantive law governing their IIED claims. Compl. ,r,r 376-84. These claims stand apart
from plaintiffs' § 1605A(c) claims. See id. The Family Member Plaintiffs argue that D.C. tort
law should apply to these IIED claims. Mem. in Supp. 30-34. The Court will reject this argument.
Under D.C. choice-of-law principles, D.C. law should not provide the substantive law governing
plaintiffs' IIED claims.
If a foreign state "is not entitled to immunity under[§] 1605 ... the foreign state shall be
liable in the same manner and to the same extent as a private individual under like circumstances."
28 U.S.C. § 1606. Plaintiffs may thus "bring state law claims [against a foreign state] that they
could have brought if the defendant were a private individual." Oveissi v. Islamic Republic of
Iran, 573 F.3d 835, 841 (D.C. Cir. 2009); see First Nat'/ City Bank v. Banco Para El Comercio
Exterior de Cuba, 462 U.S. 611, 622 n.11 ( 1983). Put another way, "the FSIA ... operates as a
'pass-through' to state law principles." Oveissi, 573 F.3d at 841 _(quoting Pescatore v. Pan Am.
World Airways, Inc., 97 F.3d l, 12 (2d Cir. 1996)).
31
That begs the question of which state's laws apply. A federal court assessing state-law
claims under the FSIA must apply the choice-of-law rules of the forum. See Oveissi, 573 F .3d at
841. Here, that forum is the District of Columbia. D.C. law employs a "constructive blending" of
governmental interest analysis and the "most significant relationship" test of the Restatement
(Second) of Conflict of Laws (the "Second Restatement"). District of Columbia v. Coleman,
667 A.2d 811, 816 (D.C. 1995).
Governmental interest analysis requires a court to ( 1) "identify[] the policies underlying
the laws" of each potential jurisdiction, In re APA Assessment Fee Litigation, 766 F.3d 39, 52
(D.C. Cir. 2014); then (2) determine whether ajurisdiction's policy would be advanced "by having
its law applied to the/acts of the case under review." Hercules & Co., Ltd. v. Shama Rest. Corp.,
566 A.2d 31, 41 (D.C. 1989) (emphasis added). As part of this analysis, a court should also
consider the jurisdiction with the "most significant relationship" to the dispute under the principles
listed in the Second Restatement. See Pietrangelo v. Wilmer Cutler Pickering Hale & Dorr, LLP,
68 A.3d 697, 714 (D.C. 2013); Washkoviak v. Student Loan Marketing Ass'n, 900 A.2d 168, 180
(D.C. 2006).
Three jurisdictions could provide the law governing the Family Member Plaintiffs' IIED
claims: ( l) the District of Columbia, as the forum; (2) Great Britain and South Africa, as the
plaintiffs' domiciles; or (3) Iraq, as the place of the wrong. Plaintiffs invoke only D.C. law in their
motion for default judgment, see Mem. in Supp. 30-35, and therefore did not inform the Court
whether British, South African, or Iraqi law permits recovery for IIED claims. The Court need not
decide which jurisdiction's law governs plaintiffs' IIED claims by its approximation of foreign
law. One conclusion is plain-under the norms of governmental interest analysis, D.C. law cannot
apply to this dispute.
32
Two policies underlie D.C.' s law permitting recovery for intentional infliction of emotional
distress. To establish an IIED claim under D.C. law, a plaintiff must show: (I) that the defendant
committed "extreme and outrageous conduct" (2) either intentionally or recklessly (3) causing the
plaintiff severe emotional distress. Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002)
(citing Howard Univ. v. Best, 484 A.2d 958, 985 (D.C. 1984)). First, this cause of action aims to
compensate D.C. residents for emotional harms suffered at the hands of a culpable defendant.
Second, the law regulates conduct within the District by deterring individuals from committing
extreme and outrageous acts leading to emotional distress.
Neither of these policies would be promoted by applying D.C. law to this case. The Family
Member Plaintiffs have provided no evidence that they resided in D.C. at the time of their injuries.
The District hardly has an interest in compensating foreign citizens residing abroad. The law's
conduct-regulating policy is also inapposite. The EFP attacks instigating this case occurred
entirely within Iraq. Applying D.C. law to this dispute would therefore deter conduct in Iraq, not
the District itself. Since neither of the policies underlying D.C.' s IIED cause of action would be
promoted by applying D.C. law to this case, D.C. lacks a legitimate interest in this dispute.
A court applying D.C. choice-of-law principles should also consider the state with the
"most significant relationship" to the case in light of the Second Restatement's principles. Under
§ 145 of the Second Restatement:
(1) The rights and liabilities of the parties with respect to an issue in
tort are determined by the local law of the state which ... has
the most significant relationship to the occurrence and the
parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of§
6 ... include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
33
(c) the domicil[ e], residence, nationality, place of
incorporation, and place of business of the parties , and
(d) the place where the relationship, if any, between the
parties is centered.
Restatement (Second) of Conflict of Laws§ 145. For actions for personal injury, the law of the
"state where the injury occurred" should govern unless another state has a "more significant
relationship" to the dispute under the principles in § 6. Id. § 146. Section 6, accordingly, lists
principles that a court should consider in a choice-of-law analysis-the needs ( 1) to prevent forum
shopping, (2) to recognize the policy interests of jurisdictions, and (3) to ensure predictability of
results. See id. § 6; Henkin, 2021 WL 2914036, at *6.
The Second Restatement's provisions also point away from the District of Columbia.
Plaintiffs' injuries occurred in Britain, South Africa, and Iraq. The conduct causing these
injuries-the EFP attacks-occurred in Iraq. Permitting foreign citizens to recover damages under
D.C. law because ofD.C. 's favorable substantive law is "the epitome of forum shopping." Henkin,
2021 WL 2914036, at *6. And since plaintiffs provided no evidence that they resided in D.C. at
the time ofthe attacks, D.C. has no interest in applying its law to this dispute. Finally, the§ 145(2)
contacts point to the law of the Family Member Plaintiffs' domiciles to ensure predictable results,
as those jurisdictions are where their injuries occurred and where they were domiciled at the time
of their injuries. Accord id. 7
Plaintiffs' argument that D.C. law should apply because of the United States' "unique
interest" in applying its domestic law to terrorism cases misses the mark. Mem. in Supp. 31-32.
7
This reasoning reflects the Court's long history of applying the law of a plaintiffs domicile to FSIA disputes. See,
e.g., Henkin, 2021 WL 2914036 (D.D.C. July 12, 2021); Rimkus v. Islamic Republic of/ran, 575 F. Supp. 2d 181, 196
(D.D.C. 2008); Beer v. Islamic Republic of Iran, 574 F. Supp. 2d 1, 10 (D.D.C. 2008); Blais, 459 F. Supp. 2d at 54.
In Estate of Heiser v. Islamic Republic of Iran, for example, the Court spent over eighty pages detailing conclusions
of law for each of plaintiffs' domicile states. See Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229,
271-356 (D.D.C. 2006).
34
The United States may well desire to apply its domestic laws to terrorist attacks on U.S. citizens
abroad. See Oveissi, 573 F.3d at 843 (terming this desire a "strong interest"). But the remaining
plaintiffs are not citizens of the United States. 8 Whether the United States, as a nation, wishes to
apply its law (or the law of its concomitant states) in a dispute is inapposite. Governmental interest
analysis instead asks whether the policies underlying a particular law of a particular jurisdiction
would be furthered by applying the law to the case at bar. See Hercules, 566 A.2d at 41.
Amorphous policy interests unconnected to specific laws do not follow this analysis.
The D.C. Circuit's decision in Doe v. Exxon Mobil Corporation supports this conclusion.
654 F.3d 11 (D.C. Cir. 2011), affirmed in part on reh 'g, Doe v. Exxon Mobil Corp., 527 F. App'x
7 (D.C. Cir. 2013). In Doe, the court compared the laws of (1) three U.S. states, (2) the.District of
Columbia, and (3) Indonesia. See Doe, 654 F.3d at 70. The district court had held that D.C. law
applied after comparing "the interest of the United States in applying [D.C.] law [with] the interest
of Indonesia." See id. at 69. The D.C. Circuit reversed. Id. at 70. In the D.C. Circuit's view, the
district court should have compared the interests of individual jurisdictions, not the interest of the
United States as a whole . .See id_.. at 69-70. For "the foreign affairs interest of the United States ...
does not necessarily reflect the interests of the several states." Id. After further analysis, the D.C.
Circuit held that Indonesian law should govern the dispute. Id. at 70-71.
These analyses point to the same conclusion: D.C. law cannot apply to plaintiffs' IIED
claims. None of the plaintiffs were D.C. domiciliaries at the time of the EFP attacks. Nor did the
EFP attacks occur in the District. Applying D.C. law to this dispute would not further the
8 Nor does the United States' "strong interest" amount to a ''categorical rule that domestic law applies whenever a
[United States] citizen is injured abroad." Estate of Botvin ex rel. Ellis v. Islamic Republic of Iran, 772 F. Supp. 2d
218,225,225 n.S (D.D.C. 2011). The court in Botvin, for example, applied Israeli law to a lawsuit by United States
citizens domiciled in Israel because "the attack occurred in Israel," "the victim was domiciled in Israel," "the plaintiffs
reside[d] in Israel," and no evidence showed that terrorists attacked the victim "merely because [she] was a U.S.
citizen." Id at 226--27.
35
compensato ry or conduct-regulating polic ies underly ing D.C.'s law permitting recovery for llED.
And doing so would cut aga inst the Second Restatement' s focus on preventing forum shopping,
respecting inte rested states, and ensuring predictable results. T he Court cannot conc lude that Iran
is liable for the Family Member Pla intiffs' IIED cla ims on this record.
IV. CONCLUSION
For the above-mentioned reasons, the Court w ill GRANT IN PART and DENY IN PART
plaintiffs' moti on for default judgment. The Court w ill GRANT plaintiffs ' motion with respect
to the § 1605A(c) claims of the Contractor Plaintiffs and the Mugha l Plainti ffs. But the Court
must DENY pla intiffs' motion as to the Family Member Plaintiffs' IIED claims. Without evidence
of the British, South African, and Iraqi laws applicable to IIED c la ims, the Court cannot determine
which jurisdiction' s law should govern. A separate order consistent with this memorandum
opinion shall issue this date.
S IGNED this2'Y ¢ay of January, 2022.
Royce C. Lamberth
United States District Judge
36