Shoham v. Islamic Republic of Iran ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
BATSHEVA SHOHAM, )
Individually and as Administrator )
to the Estate of Y ehuda Shoham )
)
Plaintiff, )
)
v. ) Civil No. 12-cv-508 (RCL)
)
ISLAMIC REPUBLIC OF IRAN, et al., )
)
Defendants. )
MEMORANDUM OPINION
Plaintiff brings claims pursuant to the Foreign Sovereign Immunities Act ("FSIA") against
the Islamic Republic of Iran and Bank Saderat. She seeks damages for injuries suffered as a result
of a rock-throwing attack committed against her family as they were driving outside an Israeli
village in the West Bank on June 5, 2001. Defendants did not appear, and the Clerk filed entries
of default as to Iran on September 16, 2013 [ECF No. 4 7] and as to Bank Saderat on April 9, 2015
[ECF No. 65]. This Court held a two-day evidentiary hearing on plaintiffs motion for default
judgment against Iran and Bank Saderat [ECF Nos. 78 & 79]. For the reasons discussed below,
the Court concludes that plaintiff's motion must be DENIED.
I. PROCEDURAL HISTORY
Plaintiff filed her complaint on April 2, 2012, pleading causes of action against the Islamic
Republic of Iran and Bank Saderat as an agency and instrumentality of Iran. Compl., ECF No. 3.1
1
Plaintiffs complaint also plead causes of action against other agencies and instrumentalities of Iran, including Iran
Airlines, as well as causes of action against the Syrian Arab Republic and its agencies and instrumentalities. Claims
against most of these defendants were voluntarily dismissed. See ECF Nos. 16, 38, 66, 72, & 87. The sole remaining
Their causes of action and the jurisdiction of this Court are premised on section 1605A of the
FSIA.
On February 13, 2013, this Court ordered service on Iran via diplomatic channels pursuant
to 28 U.S.C. § 1608(a)(4). ECF No. 25. On March 18, 2013, plaintiff received confirmation
through the Court that, with the assistance of the Foreign Interest Section of the Embassy of
Switzerland in Tehran, copies of the Summons and Complaint in both English and Farsi were
delivered under cover of diplomatic note number 1036-IE on April 21, 2013 to the Iranian Ministry
of Foreign Affairs. ECF No. 40. Iran's answer was due on June 20, 2013, which is sixty days after
service. 28 U.S.C. § 1608(d). Iran made no response and has yet to appear in this case. The Clerk
of the Court entered default against Iran on September 16, 2013. ECF No. 47.
On May 19, 2014, this Court authorized substitute service on Bank Saderat by dispatching
copies of the Summons and Complaint in both English and Farsi to defendant via courier service.
ECF No. 53. The Clerk sent the required documents by Federal Express, International Service to
an address authorized by the Court. The documents were delivered on August 8, 2014, signed for
by a receptionist at Bank Saderat's office in Paris, France. ECF No. 62. Bank Saderat's answer
was due on October 7, 2014. This Court previously found service on Bank Saderat sufficient and
ordered entry of default against Bank Saderat. ECF No. 64. The Clerk of Court entered default
against Bank Saderat on April 9, 2015. ECF No. 65.
Following the voluntary dismissal of other defendants, this Court held two days of
evidentiary hearings on April 7-8, 2016. At the conclusion of those hearings, plaintiff orally
defendants are the Islamic Republic oflran and Bank Saderat. All references to "defendants" in this opinion refer only
to Iran and Bank Saderat.
2
moved for the Court to . enter a judgment of liability
.
against Iran and award. damages. 2 The Court
ordered plaintiff to submit proposed findings of fact and conclusions of law to assist in reviewing
the evidence submitted. Plaintiff initially failed to provide the proposed findings and conclusions,
and this Court ordered the case dismissed subject to reinstatement upon motion accompanied by
the proposed findings and conclusions. ECF No. 84.
On October 4, 2016, plaintiff moved to reopen the case and submitted their proposed
findings of fact and conclusions oflaw. ECF No. 85. This Court granted the motion, ECF No.
88, and now considers whether default judgment should be entered against Iran and Bank Saderat.
II. FINDINGS OF FACT
Before determining whether defendants should have a default judgment entered against
them, the Court must consider evidence and make findings of fact with respect to plaintiff's
allegations. Section 1608(e) of the FSIA requires that no default judgment shall be entered against
a foreign state or its political subdivision except upon "evidence satisfactory to the court." 28
U.S.C. § 1608(e). The Court, therefore, may not "simply accept a complaint's unsupported
allegations as true." Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 171 (D.D.C. 2010).
Courts may, however, rely on "uncontroverted factual allegations" that are supported by
"documentary and affidavit evidence." Id (quoting Valore v. Islamic Republic of Iran, 700 F.
Supp. 2d 52, 59 (D.D.C. 2010)). Also, in addition to plaintiff's own evidence, courts may take
judicial notice of prior related proceedings and the evidentiary records in cases before the same
court. Id
2
Curiously, plaintiffs oral motion did not include an explicit request as to the liability of Bank Saderat. However,
Bank Saderat was alleged as an agency or instrumentality of Iran, and in the context of the hearing it is clear to this
Court that plaintiffs request included a finding of liability and damages against both Iran and Bank Saderat.
Accordingly, plaintiffs oral motion is construed as a motion for default judgment against both remaining defendants.
3
Here, plaintiff presents a case of first impression regarding Iranian liability for a rock-
. .
throwing attack outside an Israeli village in the West Bank during the Second Intifada.
Specifically, plaintiff asserts that Iran materially supported Hezbollah and Fatah, who conducted
the attack. While this Court is aware of no other cases in which Iran has been found liable for an
attack by Fatah, plaintiff relies in part upon evidence presented in previous litigation. Therefore,
the Court will assess the basis for accepting this evidence before setting out the findings of fact.
A. Judicial Notice of Prior, Related FSIA Cases
A court may "take judicial notice of, and give effect to, its own records in another but
interrelated proceeding." Roth v. Islamic Republic ofIran, 78 F. Supp. 2d 379, 387, (D.D.C. 2014);
Booth v. Fletcher, 101 F.2d 676, 679 n.2 (D.C. Cir. 1938). This is in keeping with Federal Rule
of Evidence 201 (b), which allows a court to "judicially notice a fact that is not subject to reasonable
dispute because it . . . can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned." Fed. R. Evid. 20l(b). In light of this authority and the
numerous FSIA cases in recent years giving rise to nearly identical factual and legal issues, this
Court and others in this District have frequently taken judicial notice of earlier, related cases arising
under the state sponsored terrorism exception to foreign sovereign immunity. See, e.g., Fain v.
Islamic Republic of Iran, 856 F. Supp. 2d 109, 115 (D.D.C. 2012) (citing cases).
The Court may not simply adopt previous factual findings without scrutiny however. This
is because factual findings "represent merely a court's probabilistic determination as to what
happened, rather than a first-hand account of the actual events." Id at 116. As such, courts have
concluded that findings of fact are generally considered hearsay, not subject to an enumerated
exception to the prohibition on hearsay evidence in the federal rules. Rimkus, 750 F. Supp. 2d at
172. This does not mean, however, that courts in later, related FSIA proceedings are given the
4
"onerous burden of re-litigating key facts in related cases arising out of the same terrorist attack."
Id. Instead, courts adjudicating related FSIA cases may "rely upon the evidence presented in
earlier litigation-without necessitating the formality of having that evidence reproduced-to
reach their own, independent findings of fact in the cases before them." Id. The records of this
Court in related proceedings are not subject to reasonable dispute. Roth, 78 F. Supp. 3d. at 387.
Thus, the type and substance of evidence previously presented to this Court in prior proceedings
may be judicially noticed in the process of reaching findings of fact in this case.
Plaintiff alleges that Iran and Bank Saderat have materially supported Hezbollah and Fatah,
which led to the June 5, 2001 attack. The Court shall take judicial notice of the evidentiary record
in previous cases litigated before this Court, specifically Peterson v. Islamic Republic of Iran, 264
F. Supp. 46 (D.D.C. 2003) (Peterson I), Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25(D.D.C. 2007) (Peterson II), and Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52 (D.D.C.
2010), in which this Court received overwhelming evidence demonstrating the material and
technical support from Iran to Hezbollah in coordinating and conducting terrorist attacks. The
Court adopts the findings in those cases that the formation and emergence ofHezbollah as a major
terrorist organization is due to the government of Iran, and that Iran is liable for its state
sponsorship of terrorism.
B. The Attack
On the evening of June 5, 2001, Binyamin Shoham was driving with his wife, Batsheva
Shoham, and his infant son, Yehuda Shoham, along the main road from Jerusalem to Nablus in
the West Bank. Testimony ofBinyamin Shoham 142:25-143:7, ECF No. 77. The Shohams lived
in Shilo, a town located between Jerusalem and Nablus in the West Bank. Binyamin Testimony at
133:18, 140: 10-15. They were traveling home after a visit with Binyam in' s parents, who lived in
5
about an hour away in Ra'anana, a city north of Tel Aviv. Batsheva was seated in the back seat
behind Binyamin, and Yehuda was in the middle seat in a rear-facing car seat. Id. at 144:15-21.
As the car travelled outside the village of Shilo, Binyamin noticed something flying in the air
toward the car. Id. at 144:23-145:8. A rock or boulder the size of a small watermelon crashed
through the front windshield, passing through the two seats and striking Yehuda in the head. Id. at
145:15-22. Binyamin stopped the car and discovered that Yehuda was not breathing. Id. at 144:23-
145:12. Batsheva performed CPR while Binyamin called for an ambulance. Id. at 147:20-148:7.
Yehuda began breathing again but was bleeding from injuries on his head. Id. After the ambulance
arrived, Yehuda was taken to the hospital. Id. at 148:24-149:2. Yehuda was in the hospital for six
days before he passed away due to his injuries. Id. 152:11-13, 154:14-23.
Days later, an Israeli investigator named A'Atef Aweeda3 interrogated a suspect named
Wahid or Muayad Katina. 4 Pl.'s Exhibit 1, Aweeda Deposition 11:4-23, 15:9-15. Katina
confessed that he and others-Mahmud Ibrahim Khatib, Muhamad Bik, and Sakar Saleh (or
Zalach or Shahin) 5-were throwing rocks at Israeli vehicles on the night of June 5, 2001 near the
town of As-Sawiya, which is just north of Shilo. Id. at 16:18-17:3. While Katina's original
statement only listed Khatib and Bik, Katina amended his statement to include that Sakar had been
present and that Sakar had fired an improvised pistol at cars as they drove by. PL' s Exhibit 7, June
3
Senior Master Sergeant A' Atef Aweeda is deputy commander of the Israeli police terrorism investigation unit in
Judea and Samaria. He began as a patrol officer in 1994, and he began conducting investigations in 1997. He began
investigating for the terrorism unit in 1999. At the time of the attack on Yehuda Shoham, Aweeda worked as an
investigator for terror incidents in his district. He mostly investigated Palestinian attacks on Israelis.
4
The interrogation was conducted in Arabic, and the accompanying statements were transcribed in Arabic and then
translated to Hebrew. Those statements were again translated to English for this Court. An apparent result of the
translations is the existence of multiple spellings for names and places. For instance, the suspect's name appears in
the transcript of Aweeda's deposition as "Muayad Kafina" and "Wahid Kafina." However, the translations ofKafina's
statements to police use the name and spelling "Muayad Katina."
5
Again, the exhibits refer to a "Sakar Shahin," "Sakr Shahin," "Safey," "Saker," and "Sakar Zalach." The Court
understands that these names and spellings all refer to the same person, an associate or friend of Muayid Kafina. The
Court will refer to him throughout as Sakar Saleh.
6
25, 2001 Recorded
.
Statement to Police. by Muayad Kafina. Sakar
.
Saleh himself also admitted
.
to
throwing rocks at cars with Khatib, Bik, and Kafina on the night of June 5, 2001. Pl.'s Exhibit 4,
Police Report, June 22, 2001 Recorded Statement to Police by Sakar Saleh. Kafina stated that they
each threw at least two stones and that two cars were hit, but Kafina did not know who was in the
car or whether they had been injured. June 17 Kafina Statement. He learned on the news the next
day that a child had been injured in the area where they had been stoning cars. Id. Kafina later
added details that Sakar "took an improvised pistol with him and fired from that pistol at three
Israeli vehicles that passed by," but he did not know if any of the vehicles had been hit. June 25
Kafina Statement. There is no evidence that the Shoham's vehicle had been shot at or hit by
bullets.
Muayid Kafina admitted to being a member of Tanzim Fatah, recruited by a man named
Jamal Abdullah Hatid (or Khatib) a year and a half earlier. Id. at 18:19-19:5; Pl.'s Exhibit 3, June
17, 2001 Recorded Statement to Police by Muayad Kafina. When asked why he decided to throw
stones at Israeli vehicles, Kafina responded "because of the security situation prevailing in the
area." Id. at 18:1-3; June 17 Kafina Statement. Additionally, Kafina and Sakar Saleh both stated
that they previously had rocks thrown at them while traveling to Ramallah, and that afterwards
they were meeting in a mosque and decided to throw stones at Israeli vehicles passing near their
village. June 17 Kafina Statement; June 22 Sakar Statement. Kafina stated that he "had no other
activity" while he was a member of Fatah Tanzim. June 17 Kafina Statement. However, Kafina
later admitted to being with Sakar Saleh on five or six separate occasions when Sakar fired bullets
at Israeli vehicles as they passed by. June 25 Kafina Statement. It is unclear whether Sakar Saleh
was a member of any organization, and there appears to be no confession by any of the others as
to their membership, if any, to Fatah Tanzim or any other organization.
7
According to Aweeda, there were several rock attacks involving Fatah Tanzim during the
. .
Second Intifada. Aweeda Aff. 32-33. Many of these incidents occurred in As-Sawiya, where
Katina admitted to throwing stones. Id Aweeda testified that the modus operandi is to stand on
the side of the road and throw rocks at Israeli cars. Id Kafina and the others were able to identify
Israeli vehicles by the color of the license plates: Israeli license plates were yellow while non-
Israeli (Palestinian) plates were white. Id at 19:20-20:2; June 17 Kafina Statement.
C. Tanzim - Fatah - Al-Aqsa Martyrs Brigade
Fatah, also known as the Palestinian National Liberation Movement, was established in
1959 by Yasser Arafat. 6 Testimony of Dr. Ido Zelkovitz 38:16-25. 7 Fatah called for an armed
struggle against Israel. Id at 43:25-44:1. In 1965, Fatah began attacking Israeli targets. Id. at 39:6-
13. In 1967, following the Six Days War, Fatah coordinated with the PLO. Id. at 44:12-25. In
1969, Arafat took over as Chairman of the PLO, and Fatah has been the "backbone" of the PLO
smce. Id
Fatah is affiliated with various militant groups, including the Tanzim and the al-Aqsa
Martyrs Brigade (AAMB). Id. at 26:9-17. Tanzim is described by the State Department as "small
and loosely organized cells of militants drawn from the street-level membership of Fatah."
Patterns of Global Terrorism 2001 at 54. Tanzim was made up of cells of Fatah-affiliated
operatives organized to carry out attacks for the Fatah organization. Id; PL' s Exhibit 32, IDF
Military Intelligence Report, May 3, 2002. Some Tanzim militants are also active in the sub-group
6
Arafat also was Chairman of the Palestinian Liberation Organization (PLO) and President of the Palestinian National
Authority (PA). He served as the movement's chairman and president of the PA until his death in 2004.
7
Dr. Zelkovitz is a Senior Lecturer and Head of Middle East Studies at Emek Yezreel Academic College, a researcher
at the University of Haifa in Israel, and a Policy Fellow at Mitvim, the Israeli Institute for Regional Foreign Policies.
He has BA, Master's, and Ph.D. degrees from the University of Haifa in Middle Eastern Studies, focusing specifically
on Islam, Hamas, the Fatah Movement, and the politics of Palestinian universities. The Court shall treat Dr. Zelkovitz
as an expert on the history of the Fatah Movement.
8
AAMB, .which has claimed responsibility for shootings and bombings in the West ~ank against
settlers and Israeli soldiers. Id. AAMB is designated as a foreign terrorist organization (FTO) by
the United States Secretary of State. However, while all AAMB members are Tanzim, not all
Tanzim are AAMB members. Similarly, all Tanzim or AAMB members are Fatah, but not all
Fatah members are Tanzim or AAMB. Tanzim and AAMB are militia and non-institutionalized
factions of Fatah. PL ' s Exhibit 28, Zelkovitz Aff. 13. According to IDF intelligence, however,
while Arafat had attempted to distance Fatah from AAMB, the Fatah movement and the AAMB
"are one and the same." Ex. 32, IDF Report 2.
Palestinian resistance in Israel surged in September 2000. This is commonly referred to as
the Second Intifada. 8 Fatah military operations in the West Bank and Gaza Strip have been largely
attributed to AAMB. Id. During the relevant period in this case, a man named Marwan Barghouti
acted as the commander ofTanzim and AAMB in the West Bank. Id. Barghouti funneled money
to field squads of AAMB for the purpose of purchasing weapons and support AAMB members'
livelihood. Zelkovitz Aff. 12, 21. In 2004, Barghouti was convicted and sentenced by an Israeli
court to five life sentences for causing the deaths of five Israelis in terrorist attacks attributed to
Tanzim and AAMB. Id. He sponsored many attacks, directly launched others, and gave money
with direct orders to Fatah Tanzim activists. Zelkovitz Testimony 64: 19-25.
In short, Fatah Tanzim and AAMB actively promoted, funded, and participated in terrorist
attacks against Israelis in the West Bank during the Second Intifada. According to testimony by
Inspector Aweeda and Dr. Zelkovitz, this included rock-throwing attacks at Israeli cars in the West
Bank near where the Shohams were attacked and Yehuda Shoham was killed.
8The Second Intifada began on September 28, 2000 and continued until the end of2004. Zelkovitz Testimony 51 :3-
18.
9
D. Iran/Hezbollah Connections to Fatah Tanzim and AAMB
Iran is considered by the United States to be one of the most dangerous state sponsors of
terrorism in the world, and has been designated by the United States Secretary of State as a state
sponsor of terrorism since January 19, 1984. Further, the State Department has broadly concluded
that Iran is one of the most active state sponsors of terrorism in the world, providing planning and
support to a multitude of militant terrorist groups. Patters ofGlobal Terrorism at 64. Specifically,
following the outbreak of the Second Intifada, Iranian support for Palestinian groups using
violence against Israelis "intensified." Id.
While Iranian support ofFatah has ebbed and flowed since the 1970's, the outbreak of the
Second Intifada brought increased Iranian support. Zelkovitz Aff. 16; Zelkovitz Testimony 49:3-
50:14; Pl.'s Exhibit 33. 9 Iran specifically called for cooperation with Fatah Tanzim. In an October
20, 2000 statement on Iranian television, Iran's supreme leader Ali Khamenei announced:
We regard Palestinians as an organ of our body, and the support of
the Palestinian nation is pride for the Iranian people . . . The
Palestinian people must continue the blessed Jihad and its standing
against the enemies of Islam . . . The Hamas, Islamic Jihad and
Fatah forces must continue the struggle in a united way ... But,
indeed, the only solution [to the crisis in the region] is the
elimination of the root of this crisis, which is the Zionist regime
imposed on the region.
Pl.'s Exhibit 33 (emphasis added).
The State Department ultimately concluded that Iran provided "Palestinian rejectionist
groups" with "varying amounts of funding, safehaven, training, and weapons," prior to and during
9
The relationship between Fatah and Iran dates back to the I 970's when Fatah had an infrastructure in Sidon, Lebanon.
When Khomeini opposed the Shah, he sent fighters to train in the Fatah camps in Lebanon. Fighters who took part in
this training later helped establish the Islamic Revolutionary Guard and Hezbollah. In 1974, when Khomeini became
supreme leader of Iran, he issued a fatwa that the Fatah struggle against Israel be considered a holy war and that all
Muslims must take part in the struggle. Zelkovitz Testimony 39-40; Zelkovitz Aff. 7-8. Arafat was the first Arab
leader to visit with Khomeini after the 1979 revolution, and Khomeini proclaimed an al-Quds day designed to bring
together Shi'ite and Sunni Muslims in calling for the destruction of Israel. Id. 40-42.
10
2001. Patterns of Global Terrorism at 65. It has also concluded that Iran "enco~raged Hizballah
and the rejectionist Palestinian groups to coordinate their planning and to escalate their activities."
Id These previous findings, coupled with Dr. Zelkovitz's testimony, supports the conclusion that
Iran also supported Fatah and AAMB by providing money, weapons, guidance, and recruitment
assistance. Zelkovtiz Aff. 20.
Dr. Zelkovitz testified that Hezbollah provided money and support to Fatah Tanzim at the
direction of the Iranian government. Id. at 16-20; Zelkovitz Testimony 70:16-24. During the
Second Intifada, Iran provided Fatah with millions of dollars' worth of money and weapons.
Zelkovitz Testimony 62:1-10. For example, in January 2001 Israel intercepted a ship carrying
arms directly from Iran to the PA, as well as two other arms shipments in 2001 and 2002. Id. at
60-61. The ship contained anti-tank launchers, anti-aircraft missiles, grenades, and other weapons.
Id. Interrogation of the crew indicated that Iran was directly involved in supplying those arms to
the PA. Zelkovitz Aff. 19-20; Zelkovitz Testimony 60. Fuad Shubaki, Arafat's financial advisor,
was convicted by an IDF court of purchasing and transferring weapons from Hezbollah to the PA.
Id.
Dr. Zelkovitz also provided an example of an AAMB cell "operated mutually by Fatah and
Hezbollah under the command of Ghalib Awalli, a senior member of Hezbollah who served as a
contact between the two organizations (Fatah and Hezbollah)." Zelkovitz Aff. 20. Further, some
Fatah militants have claimed responsibility for attacks carried out in the name of "al-Aqsa Martyr
Brigades Hezbollah Palestine," an apparent amalgamation of the names of overarching
organizations. Zelkovitz Aff. 18. Coupled with the findings of Israeli intelligence, the evidence
supports the conclusion that Iran and Hezbollah provided organizational support to Fatah Tanzim
andAAMB.
11
Dr. Zelkovitz also testified that Fatah provides payments to terrorists through official Fatah
. . .
sources like Munir Mikdah, a general within the Fatah organization who developed channels of
money to Fatah/AAMB militants in Jenin and Nablus. Zelkovitz Testimony 35:2-14. Mikdah had
no finances of his own, and the funds used to sustain attacks in the West Bank came directly from
Iran. Exhibit 33, ~; Zelkovitz Testimony 59: 13-25. In fact, Mikdah himself stated in interviews
and other public statements that he received money from Iran or Hezbollah before channeling it to
Fatah/AAMB militants. Id. at 35:17-36:10. In one example, a Fatah Tanzim member serving as
treasurer for AAMB provided information to Israeli police that he had received $30,000 from
Mikdah and transferred these funds to ten Fatah Tanzim/AAMB operatives. Another Fatah
Tanzim/AAMB member named Mahmud Aweiss admitted at his trial that he was a member of
AAMB and has received $50,000 from Mikdah. Zelkovitz Aff. 22-23. Both of these militants
were from the Nablus and Jenin area, the same region as Kafina's village: As-Sawiya. Id. In fact,
Nablus and Jenin were among the main areas that received funds from Hezbollah and Iran. Id.
Such evidence supports the conclusion that Iran and Hezbollah provided financial support to Fatah
Tanzim and AAMB.
Iran also maintained a "Martyrs Foundation" intended to compensate the families of
militants who were killed during operations against Israel. Zelkovitz Testimony 66:8-67:24.
Zelkovitz Aff. 27. This compensation served essentially as a bounty on Israelis, encouraging
militants to create relationships with Hezbollah and Iran and to create as much damage as possible
so that their families would be taken care of. Id. On occasion, AAMB members have been sent to
Tehran for medical treatment in exchange for providing recruitment services or developing
additional cells in the West Bank. Zelkovitz Testimony 67: 11-20. Such evidence supports the
12
conclusion that support for Fatah Tanzim and AAMB was given in exchange for acts of violence
against Israelis and the state of Israel.
In sum, the Court has been presented with evidence that Iran and Hezbollah have generally
supported Fatah Tanzim and AAMB in hostilities against Israel and Israelis, and that Fatah Tanzim
and AAMB relied on the money and support from Iran to conduct those hostilities. Such
hostility-and material support to Fatah Tanzim and AAMB in furtherance thereof-appears to
have been, in effect, the official state policy of Iran at the time of the June 5, 2001 attack on the
Shohams.
E. al-Manar Television
Another method of Iran/Hezbollah's incitement and encouragement of attacks against
Israelis during the Second Intifada was through television programming on al-Manar, a television
station broadcast throughout the Palestinian territories. Testimony of Avi Jorisch 85:20-86:7,
112:11-15. 10 Mr. Jorisch testified that Iran materially financed al-Manar, which was owned and
operated by Hezbollah. Id. He also testified that the purpose of al-Manar was to "act as a
mouthpiece for Hezbollah and for Iran" and to incite violence against Israelis. Jorisch Testimony
102:18-103:5, 104:3-8. Specifically, the broadcasts included incendiary language and imagery
including chants of "Death to Israel," images of Jerusalem, the word "resistance," maps of
Palestine, images of Hezbollah or rebels marching, and-perhaps most relevant-references to
throwing Jews into the sea and engaging in rock-throwing "because it's cheap and you can find
10
Avi Jorisch is a Senior Fellow for Counterterrorism at the American Foreign Policy Council in Washington, DC,
and a member of the Council on Foreign Relations and of the Advisory Board to United Against a Nuclear Iran. He
previously served as a Policy Advisor to the United States Department of Treasury's Office of Terrorism and Financial
Intelligence and a former consultant for the Department of Defense and Department of Homeland Security on issues
related to terrorist financing and radical Arab media. He has a Master's in Middle Eastern Studies from the Hebrew
University of Jerusalem and studied Arabic and Islamic history at the American University in Cairo and al-Azhar
University, prestigious centers of Islamic learning in Egypt. The Court shall treat Mr. Jorisch as an expert on
Iran/Hezbollah's link to al-Manar finances and programming.
13
[rocks] anywhere." Id. at 117:12-120:7. According to Jorisch, Iran encourages Palestinians to
. .
engage in rock-throwing as an effective means of resistance against Israel. Id. at 117:10-21.
Station officials have also helped organize attacks and broadcast the locations of demonstrations.
Id. at 107:12-23.
The programming of al-Manar became much more violent in response to the Second
Intifada and quickly became the most watched station in the Arab world. Id. at 111:12-112:25.
Jorisch testified that, despite being relatively unknown among Americans and Israelis, al-Manar
had 14 satellite providers broadcasting to 25 million viewers in the Arab world. Id. at 101 :5-11.
Leadership of organizations, including Fatah Tanzim, have appeared on al-Manar to spread
information to members and incite their supporters, as well as to claim responsibility for attacks
and advertise where demonstrations would take place. Id. at 107:19-23, 115:6-116:20. As noted,
the broadcasts included videos of rock-throwing. Id. at 117:9-21, 128. These broadcasts reached
several Palestinian territories, including the area where the June 5, 2001 attack on Yehuda Shoham
occurred. Id. at 112:10-14. Further, Fatah Tanzim used al-Manar to broadcast its attacks to a large
Palestinian audience in the West Bank. Id.at 122-123.
In sum, the evidence supports the conclusion that Iran used al-Manar to incite and
encourage attacks against Israelis during the Second Intifada, and incitement of such attacks
appears to have been, in effect, the official state policy oflran at the time of the June 5, 2001 attack
on the Shohams.
F. Bank Saderat
Bank Saderat was established in 1952 and became a commercial state-owned bank of Iran
in 1979 after the revolutionary government nationalized the bank. Jorisch Aff. if 12. 11 On October
11
Plaintiffs apparently did not submit Mr. Jorsich's affidavit into evidence at the original hearing, and instead
submitted it to the Court's dockets following the motion to reopen the case. ECF No. 86. The Court granted the
14
25, 2007, the United States Treasury Department designated Bank Saderat as a specially
Designated Global Terrorist, as well as an affiliate of the Iranian Revolutionary Guards Corps and
an Iran-linked financial institution, pursuant to Executive Order 13,224. Jorisch Aff. ~ 13. The
Treasury Department specifically referenced Bank Saderat's provision of financial services to
Hezbollah and other terrorist organizations as the reasoning for the designation. Id.
Iran would transfer hundreds of millions of dollars to various terrorist groups each year,
including approximately $200 million to Hezbollah each year. Pl.'s Exhibit 28; Zelkovitz Aff. at
16. After the start of the Second Intifada, Iran provided Hezbollah over $50 million, and these
funds were likely distributed in part through accounts at Bank Saderat. Zelkovitz Testimony at
62:7-10. Hezbollah used these funds, in part, to fund Mikdah and Fatah Tanzim's terrorist activities
in the West Bank. Id. at 62:11-22.
In 2009, Iran announced a program to privatize Bank Saderat, but that process has been a
sham because the bank is still controlled by the government. Zorisch Aff. ~ 16. In 2010, the U.S.
Treasury Department identified 21 entities in Iran's banking, insurance, and engineering industries
that were determined to be owned or controlled by the Iranian government. Zorisch Aff. ~ 14.
Bank Saderat was listed among these entities, along with the following statement by the U.S.
Treasury Department Office of Foreign Asset Control (OFAC):
In 2006, OFAC identified ... Bank Saderat Iran as [a] financial
institution[] owned or controlled by the Government of Iran.
Furthermore, Bank Saderat Iran was designated on October 25, 2007
pursuant to Executive Order 13224 for its support of terrorism-
related activities.
motion to reopen the case but did not expressly accept the affidavit into evidence. The Court will do so now. The
affidavit is admitted into evidence as of October 4, 2016.
15
Id.; Press Release, U.S. Treasury, Treasury Identifies 21 Entities Determined to be Owned or
. .
Controlled by the Government oflran Treasury Exposes Iran's Foreign Trade Network, Identifies
Entities operating in Belarus, Germany, Iran, Italy, Japan and Luxembourg (August 3, 2010),
12
available at https://www;treasury.gov/press-center/press-releases/Pages/tg811.aspx. As of
2012, 27.7% of the bank shares were owned directly by the Iranian government, 11.66% of the
shares were owned by "legal persons" owned or operated by the Iranian government-such as the
Iranian Privatization Organization, the Iranian Ministry of Petroleum, or the IRGC-and 40% of
the shares were owned by "Provincial Investment Group," a wholly-owned entity of the Iranian
government. Jorisch Aff. iii! 19-20. This means nearly 80% of the shares are owned or controlled
directly or indirectly by the Iranian government, or persons affiliated with the government. Id. In
that same time, Bank Saderat was sanctioned for providing services to terrorism and was
designated as an Iran-linked financial institution by the Treasury Department. Jorisch Aff. if 15.
In sum, the evidence supports the conclusion that Bank Saderat is an instrumentality of
Iran and was generally used to further the state policy oflran, including the incitement and support
of terrorist attacks in Israel and the West Bank.
G. Plaintiff's Status and Injuries
Plaintiff brings claims individually and as the administrator of the estate of her deceased
son, Y ehuda Shoham. The Court now makes findings regarding the status of plaintiff, including
12
Further, in the 2006 press release, the Treasury Department and Stuart Levy, the Under Secretary for Terrorism and
Financial Intelligence, concluded that Bank Saderat "facilitates Iran's transfer of hundreds of millions of dollars to
Hizballah and other terrorist organizations each year," and that "[t]he bank is used by the Government of Iran to
transfer money to terrorist organizations, including Hizballah, Hamas, the Popular Front for the Liberation of
Palestine-General Command and Palestinian Islamic Jihad." Press Release, U.S. Treasury, Treasury Cuts Iran's Bank
Saderat Off From U.S. Financial System (September 8, 2006), available at https://www.treasury.gov/press-
center/press-releases/Pages/hp87.aspx. "A notable example of this is a Hizballah-controlled organization that has
received $50 million directly from Iran through Bank Saderat since 2001." Id.
16
the injuries she. and Yehuda suffered as a. result of the June 5, 2001. attack and their citizenship
. (as
is relevant to their entitlement to recover under section 1605A of the FSIA).
1. Batsheva Shoham
Plaintiff Batsheva Shoham was a citizen of the United States at the time of the attack,
having been born to two American citizens. Her mother was born in Los Angeles, California and
her father was born in Detroit, Michigan. Testimony of Batsheva Shoham 6:8-14, ECF No. 79.
However, she was born in Israel and lived there as an adult, living in the United States only "for a
few months" when she was five years old. Id at 5:15-24, 6:15-17. Batsheva Shoham was both a
witness to and victim of the June 5, 2001 attack against herself, her husband, and her infant son.
Id at 18-26. Despite Batsheva's efforts to save Yehuda, which included performing CPR for ten
minutes before an ambulance arrived, Yehuda died after six days in the hospital. Id In the
moments following Yehuda's death, Batsheva's world "shattered." Id at 28:4-5. By custom,
Batsheva mourned for seven days, spending time "on the floor" as friends and neighbors came to
comfort her. Id. at 28:15-17. She continued to mourn beyond those seven days, and she has not
been able to return to a normal life. Id at 11-12. She continues to suffer severe emotional distress
from the attack. Id. at 28-30, 36:21-37:6. To this day, it is difficult for Batsheva to be around other
children, including her own, or to drive her car. Id at 28:8-25, 32:19-33:1, 36:21-37:6. She is in
pain all the time and cries periodically, though she does not always know what triggers each
episode. Id at 32:13-15, 36:23-37:3. She has sought therapy, along with other members of her
family, to deal with the emotional distress caused by Yehuda's death. Id. at 32:1-15, 34:10-20.
Further, the attack, and the resulting loss of Yehuda, has strained her marriage to Binyamin
Shoham and made it difficult for her to communicate with her other children. Binyamin Testimony
17
161:6-20; Batsheva Testimony 34:14-23. She is unable to visit her son's grave because it is too
painful. Batsheva Testimony 34:5-9.
2. Estate of Yehuda Shoham
Yehuda Shoham and his father Binyamin Shoham-who were both born in Israel-were
not American citizens. Binyamin Testimony 133, 138:1-2.13 Yehuda was a victim of the June 5,
2001 attack against himself, his mother, and his father. He was struck in the head by a rock and
suffered traumatic brain injuries as a result. He stopped breathing at the scene of the attack, but
was resuscitated by his mother, Batsheva Shoham, before being transported to the hospital.
B inyamin Testimony 148: 1-7. When he began breathing again he made only small squeaky noises,
but he did not cry. Id. His head was cut and bleeding following the attack, and he experienced
tremendous swelling in his head and face while at the hospital. Binyamin Testimony 151 :22-152:5;
Batsheva Testimony 23-24. He was heavily bandaged, largely unresponsive, and the doctors
indicated he had likely suffered brain damage. Id. He was hospitalized for six days before he died.
Id. Yehuda is being represented in this litigation by his mother, Batsheva Shoham, who is the
administrator of his estate. Compl. 41-45.
III. CONCLUSIONS OF LAW
A. Jurisdiction and Sovereign Immunity
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). The statute
codifies the concept of foreign sovereign immunity, something which is "a matter of grace and
comity on the part of the United States, and not a restriction imposed by the Constitution."
Republic ofArgentina v. NML Capital, Ltd., 134 S. Ct. 2250, 2255 (2014) (quoting Verlinden B. V.
13 The filings and evidentiary record all indicate that Yehuda was a non-citizen, and did not qualify for birthright
citizenship under 8 U.S.C. § 1401.
18
v. Centra! Bank ofNigeria, 461 U.S. 480, 486 (1983)). The ~SIA sets forth exceptions to foreign
sovereign immunity that provide the only authority for a district court to assert subject matter
jurisdiction over claims against a foreign state. Odhiambo v. Republic of Kenya, 764 F .3d 31, 34
(D.C. Cir. 2014). "[I]f no exception applies, the district court has no jurisdiction." Id.Because subject matter jurisdiction is premised on the existence of an exception to foreign
sovereign immunity, a district court considering a claim against a foreign state must decide
whether an exception to immunity applies "even if the foreign state does not enter an appearance
to assert an immunity defense." Verlinden, 461 U.S. at 493 n~ 20. This is in keeping with the
general rule that "[s]ubject-matter jurisdiction can never be waived or forfeited;" thus, when
jurisdictional questions arise in a suit, "courts are obligated to consider sua sponte issues that the
parties have disclaimed or have not presented." Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012).
1. Original jurisdiction
Federal district courts have original jurisdiction over FSIA cases by virtue of 28 U.S.C. §
1330. It provides that original jurisdiction will exist 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 either under sections 1605 to 1607 of the FSIA or under any applicable international
agreement. 28 U.S.C. § 1330(a). Section 1604 of the FSIA reinforces element four, stating that
foreign states are presumptively immune from jurisdiction in federal and state courts except to the
extent provided in sections 1605 to 1607. 28 U.S.C. § 1604.
All of section 1330(a)'s requirements are met in this case. First, plaintiff has not demanded
a jury trial. This is, therefore, a nonjury civil action. Second, this suit is against defendants as
legal persons, not against property. Shoham's claims, therefore, seek relief in personam. Cf Gang
19
Luan v. United States, 722 F.3d 388, 399 n.15 (D.C. Cir. 2013) ("In personam jurisdiction is
. .
jurisdiction over the defendant. In rem jurisdiction is jurisdiction over the property.").
Third, this suit is against a "foreign state." One defendant, Iran, is plainly a foreign state.
The status of Bank Saderat requires greater consideration. The FSIA defines a foreign state at
section 1603(a) as including "an agency or instrumentality of a foreign state." 28 U.S.C. § 1603(a).
An agency or instrumentality of a foreign is any entity that (1) is a separate legal person, corporate
or otherwise, (2) is an organ of a foreign state or political subdivision thereof, or a majority of
whose shares or ownership interest is owned by a foreign state or political subdivision thereof, and
(3) is not a citizen of a State of the United States or created under the laws of any third country.
28 U.S.C. § 1603(b). The D.C. Circuit has adopted a "categorical approach" to determining the
legal status of foreign government-related entities for purposes of the FSIA's jurisdiction and
service of process provisions: "if the core functions of the entity are governmental, it is considered
the foreign state itself; if commercial, the entity is an agency or instrumentality of the foreign
state." Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003). The business of
banking is plainly commercial in nature, and Bank Saderat satisfies the elements of§ 1603(b): it
is a separate legal person, it is an organ of Iran or a majority of its shares are owned by Iran, and
it is not a citizen of a State of the United States or created under the laws of a third country.
Accordingly, Bank Saderat is an agency or instrumentality oflran.
a. Sovereign immunity
The final requirement for jurisdiction under section 1330(a)-that there be an exception to
sovereign immunity as to the defendants-requires more substantial explanation. The exception
to foreign sovereign immunity relevant to this suit is codified at 28 U.S.C. § 1605A, the state
sponsored terrorism exception. That section establishes that a foreign state has no immunity
20
[I]n any case ... [I] in which money damages are sought [2] against
a foreign state [3] for personal injury or.death that was [4] 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 within the scope of his or her office, employment, or
agency.
28 U.S.C. § 1605A (numbering added). The Court now considers each of these requirements for
waiver of sovereign immunity.
First, the complaint identifies and seeks only monetary remedies for plaintiffs injuries.
Second, as established above, both defendants are foreign states as defined by the statute. Third,
plaintiff has proven various instances of personal injury or death and all claims arise from these
instances. Under section 1605A, such injury or death need not be suffered directly by the claimant;
instead, it "must merely be the bases of a claim for which money damages are sought." Va/ore v.
Islamic Republic of Iran, 700 F. Supp. 2d 52, 66 (D.D.C. 2010). Jurisdiction is not restricted to
physical injury suffered directly by each claimant. Id Thus, plaintiffs various claims for the
physical and emotional injuries to Batsheva Shoham and the economic losses to Yehuda Shoham's
estate, all of which spring from the June 5, 2001 attack, constitute the type of claims required for
jurisdiction.
The fourth element, causation, is necessary to overcome sovereign immunity and establish
subject matter jurisdiction. This jurisdictional causation is distinct from the substantive causation
of the underlying cause of action. 14 Jurisdictional causation is established by showing "some
14
The D.C. Circuit has distinguished the issue of jurisdictional causation under the state sponsored terrorism exception
from the proof necessary to prevail on the substantive cause of action. Holding that FSIA is "solely a jurisdictional
provision," the Circuit confirmed that to succeed in the end "the plaintiff must go beyond jurisdiction and provide
proof satisfying the substantive cause of action." Kilburn, 376 F.3d at 1129. Regarding jurisdictional causation, the
D.C. Circuit rejected the higher but-for standard in favor of a proximate cause standard in part because a higher
standard would impose an "additional hurdle" to recovery. Kilburn, 376 F.3d at 1128. See also Rux v. Republic of
21
reasonable connection between the act or omission of the defendant and the damages which the
plaintiff has suffered." Id. (internal citation omitted). Plaintiff need not show that the injuries
would not have occurred "but for" defendants' actions. See Kilburn v. Socialist People's Libyan
Arab Jamahiriya, 376 F.3d 1123, 1128 (D.C. Cir. 2004) (interpreting the similarly worded
causation requirement of the former state sponsored terrorism exception to foreign sovereign
immunity, section 1605(a)(7), as requiring only "proximate cause"). Rather, plaintiff must simply
allege facts sufficient to establish a reasonable connection between the material support to a
terrorist organization and the damage arising out of a subsequent attack. Kilburn, 376 F.3d at 1130(finding that the allegations in the complaint were sufficient to establish jurisdictional causation);
Rux v. Republic of Sudan, 461 F.3d 461, 473 (4th Cir. 2006) ("Plaintiffs must establish
jurisdictional causation by alleging facts sufficient to establish a reasonable connection between a
country's provision of material support to a terrorist organization and the damage arising out of a
terrorist attack.").
Plaintiffs allegations satisfy this relaxed standard. Specifically, plaintiff alleges that the
June 5, 2001 rock-throwing attack was a terrorist attack perpetuated by Muayid Kafina, a member
of Fatah Tanzim, a terrorist organization that received material support and resources from Iran
and Bank Saderat by way of Hezbollah and other intermediaries. Further, Shoham alleges that
Iran and Bank Saderat have distributed weapons, funding, and organizational support to terrorist
organizations in the West Bank, including Fatah Tanzim, and have purposefully encouraged and
incited rock-throwing attacks against Israelis through the television station al-Manar. Thus, the
facts found by the Court demonstrate that defendants ( 1) provided substantial supp011 to
Sudan, 461 F.3d 461, 473 (4th Cir. 2006) ("It [the proximate cause standard] serves simultaneously to weed out the
most insubstantial cases without posing too high a hurdle to surmount at a threshold stage of the litigation.").
22
Hezbollah, Fatah Tanzi~, and AAMB through provision of money, weapons, organizational
support, and training and (2) encouraged the escalation of terrorist activities, including rock-
throwing attacks against Israeli targets. These acts have a reasonable connection to the June 5,
2001 rock-throwing attack that ultimately killed Y ehuda Shoham. This is sufficient to pass the
relatively low bar of jurisdictional causation imposed by the FSIA. 15
Finally, plaintiff's claims must arise out of "an act of torture, extrajudicial killing, aircraft
sabotage, hostage taking, or the provision of material support or resources for such an act." 28
U.S.C. § 1605A(a)(l). This act or provision of material support must be engaged in by an officer,
employee, or agent of the foreign state within the scope of the actor's office, employment, or
agency. Id.
In this context, provision of material support or resources has the same meaning as it is
given in section 2339A of Title 18 of the U.S. Code. 28 U.S.C. § 1605A(h)(3). That section
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 (1 or more individuals who may be or include oneself), and
transportation, except medicine or religious materials.
18 U.S.C. § 2339A(b)(l).
15
However, plaintifrs allegations lack precision as to defendants' role in planning, organizing, or funding this
particular attack, or indeed whether this attack was planned, organized, or funded at all. For example, while plaintifrs
evidence clearly evinces a general support for terrorist organizations and a general encouragement ofrock throwing
attacks, there is no direct factual connection between Muayid Katina and defendants Iran or Bank Saderat. Further,
the Court is skeptical as to whether the evidence-and the reasonable inferences drawn-is sufficient to establish
defendants' liability. In other words, while the allegations here sufficiently demonstrate a "reasonable connection"
between defendants' acts and rock throwing attacks in general, they may be insufficient to satisfy the substantive
causation requirements of underlying causes of action arising from the specific attack here. However, at the
jurisdictional stage, plaintiff has passed her burden. The Court will address the substantive causation issues below.
23
Extrajudicial killing has the same meaning as it is given in section 3 of the Torture Victim
. .
Protection Act of 1991. 28 U.S.C. § 1605A(h)(7). That section defines extrajudicial killing as "a
deliberated killing not authorized by a previous judgment pronounced by a regularly constituted
court affording all the judicial guarantees which are recognized as indispensable by civilized
peoples." See Torture Victim Protection Act of 1991, Pub. L. No. 102-256, § 3(a), 106 Stat. 73(excluding from the definition killings that are lawful under international law).
The June 5, 2001 rock-throwing attack caused the death ofYehuda Shoham. Yehuda was
not killed according to the judgment of a regularly constituted court affording any judicial
guarantees. Rather, Yehuda was killed when a large rock was deliberately and maliciously thrown
through the windshield of the car in which he was traveling, Further, the car was likely targeted
solely based on the fact that it was carrying Israelis, made apparent by the yellow license plates
adorning Israeli vehicles. There is no functional difference between a rock attack targeting
civilians and a shooting or suicide bombing targeting civilians; the instrument of death has no
bearing on whether the killing was extrajudicial. The June 5, 2001 rock-throwing attack that killed
Yehuda Shoham was undoubtedly an "extrajudicial killing" as defined by the FSIA.
As noted, it is well documented that Iran and Bank Saderat have provided material support
to Fatah Tanzim or AAMB generally in the form of property, weapons, funding, financial services,
lodging, expert advice/assistance, etc. However, whether defendants provided "material support
or resources" that caused this particular act by their provision of money and training to Hezbollah
or Fatah Tanzim or AAMB is a more difficult question because there is no evidence that the
specific June 5, 2001 attack was organized, planned, funded, or ordered by Fatah Tanzim or
AAMB. Importantly, it is not necessary for material support to have directly contributed to the
specific act under which a FSIA claim arises. See In re Terrorism Litig., 659 F. Supp. 2d 31, 42
24
(D.D.C. 2009). However, the material support must have caused an act ~f extrajudicial killing, or.
some other enumerated act under§ 1605A. It is unclear whether Muayid Katina perpetrated this
attack based on his membership in Fatah, or if he was a mere participant in a group's retaliation
for having been stoned by Israeli settlers on a prior occasion. The Court is therefore skeptical as
to whether Iran's material support to Fatah Tanzim or AAMB caused the extrajudicial killing of
Yehuda Shoham.
However, as noted, jurisdictional causation is an easier hurdle to clear than substantive
causation. Plaintiff alleges that defendants provided material support for this attack by generally
providing money and organizational support to Fatah Tanzim and AAMB, and by providing
money and organizational support to al-Manar, and by intentionally encouraging and inciting rock-
throwing attacks against Israelis like Yehuda Shoham. The Court finds that defendants have
generally provided material support to such organizations, and have encouraged and incited rock-
throwing attacks. Further, because Katina professed to being a member of Fatah Tanzim, the Court
finds that the material support provided to those organizations is sufficient to pass the "reasonable
connection" standard at the jurisdictional stage.
Further, section 1605A(a)(l) required the provision of material support or resources to be
"engaged in by an official, employee, or agent of such foreign state while acting within the scope
of his or her office, employment, or agency." As set forth above, Bank Saderat, as an agency or
instrumentality of Iran, was a serial participant in coordinating finances for Hezbollah and
distributing funds to terrorist organizations in the West Bank, including Fatah Tanzim and AAMB.
Iran and Bank Saderat's provision of support to these organizations would have required the
approval of officials at the highest level oflran's government. Accordingly, the material support
provided here satisfies the jurisdictional requirements of28 U.S.C. § 1605A(a)(l).
25
Thus, the elements for waiver of sovereign immunity under section 1605A are met and
. .
defendants are not entitled to sovereign immunity. Because all of section 1330(a)'s requirements
for jurisdiction are satisfied, the Court possesses original jurisdiction over this matter.
2. Requirements for a claim to be heard
Section 1605A only applies if certain conditions are met: (1) the foreign state must have
been designated a state sponsor of terrorism at the time of the act giving rise to liability or was so
designated in response to such act and remains so designated, (2) the claimant or victim must have
been, at the time of the relevant act, a national of the United States, and (3) in cases where the act
occurred in the foreign state against whom suit has been brought, the foreign state was afforded a
reasonable opportunity to arbitrate the claim in accordance with the accepted. international rules of
arbitration. 28 U.S.C. § 1605A(a)(2). 16 Each of these conditions is met here.
First, Iran was designated by Secretary of State George P. Shultz on January 23, 1984, in
accordance with the Export Administration Act of 1979, as a "country which has repeatedly
provided support for acts of international terrorism." 49 Fed. Reg. 2836-02 (Jan. 23, 1984)
(statement of Secretary of State George P. Shultz). This designation meets section 1605A's
definition of "state sponsor of terrorism." 28 U.S.C. § 1605A(h)(6). Iran continues to be
designated as a state sponsor of terrorism to this day. State Sponsors of Terrorism, U.S. Dep't of
State, http://www.state.gov/j/ct/list/c14151.htm (last visited May 20, 2017). Because Iran was a
designated state sponsor of terror at the time of the incident underlying plaintiffs claims and
because it continues to be so designated, the first condition for a claim to be heard is met.
Plaintiff, suing in her individual capacity, meets the second requirement because Batsheva
Shoham is a national of the United States. Section 1605A(h)(5) imports the definition of "national
16
Though § l 605A(a)(2) enumerates other conditions, they are not relevant to this case.
26
of the United States"
.
from 8 U.S.C. § 1101(a)(22),
.
which defines. the term as "a citizen of the
United States, or a person who, though not a citizen of the United States, owes permanent
allegiance to the United States." 28 U.S.C. § 1605A(h)(5); 8 U.S.C. § 1101(22). Plaintiff Batsheva
Shoham is an American citizen, and therefore satisfies the condition that she be a "national of the
United States" under section 1605A. However, as noted, Yehuda Shoham was not a citizen of the
United States, and there was no evidence presented suggesting that he owed permanent allegiance
to the United States. Accordingly, he was not a national of the United States under 28 U.S.C. §
110l(a)(22), and claims by his estate do not satisfy the conditions of section 1065A(h)(5).
Finally, plaintiff has met the third requirement because the "act" described in subsection
(a)(l)-i.e. the act of extrajudicial killing-occurred in Israel, not the defendant state of Iran.
Thus, plaintiff was not required by statute to afford defendants a reasonable opportunity to
arbitrate.
3. Personal jurisdiction
Federal courts have personal jurisdiction over a foreign state if ( 1) the court has jurisdiction
pursuant to section 1330(a) and (2) service has been properly made under section 1608 of the
FSIA. 28 U.S.C. § 1330(b). As established above, the requirements for jurisdiction under section
1330(a) are met in this case. The Court next proceeds to an analysis of section 1608's requirements
for service.
Section 1608(a) requires that service upon a foreign state be completed in one of four ways.
28 U.S.C. § 1608(a). The methods are presented in order of preference; a method of service must
be unavailable or unsuccessful for a party to attempt service under a later method. Id. The first
three methods are: (1) delivery of a copy of the summons and complaint in accordance with any
special arrangement for service between plaintiff and the foreign state, (2) delivery of the same
27
documents in accordance with an applicable international convention on service of judicial
documents, or (3) delivery of the same documents as well as a notice of suit, all translated into the
foreign state's official language, by mail, return receipt requested. 28 U.S.C. § 1608(a)(l-3). The
Court is not aware of any special arrangement for service between these parties and no
international convention on service applies. Plaintiff was thus obligated to attempt Service by mail,
return receipt requested under § 1608(a)(3). That attempt was unsuccessful, and this Court
authorized plaintiff to effect service by diplomatic channels under§ 1608(a)(4). 17
28 U.S.C. § 1608(a)(4) authorizes service as follows:
[B]y sending two copies of the summons and complaint and a notice of suit,
together with a translation of each into the official language of the foreign state, by
any form of mail requiring a signed receipt, to be addressed and dispatched by the
clerk of the court to the Secretary of State in Washington, District of Columbia, to
the attention of the Director of Special Consular Services-and the Secretary shall
transmit one copy of the papers through diplomatic channels to the foreign state
and shall send to the clerk of the court a certified copy of the diplomatic note
indicating when the papers were transmitted.
28 U.S.C. § 1608(a)(4). The Clerk of the Court certified mailing the specified documents,
translated as required, to the State Department on March 18, 2013. ECF No. 30. The State
Department subsequently confirmed transmission of the documents to the Iranian Ministry of
Foreign Affairs by way of the Foreign Interests Section of the Embassy of Switzerland in Tehran,
Iran. ECF No. 40. The Court received confirmation that copies of the summons and complaint
were delivered under cover of diplomatic note on April 21, 2013 to the Iranian Ministry of Foreign
Affairs. Id. The Clerk entered default as to Iran on September 19, 2013, ECF No. 47. In light of
these filings, the Court concludes that plaintiff has complied with section 1608(a)(4) and has,
17 The details of plaintiffs attempts to serve defendants is more complicated and dealt with in greater depth in this
Court's February 13, 2013 memorandum opinion and order. ECF Nos. 25 & 26. The Court need not revisit those
issues here.
28
therefore, properly served defendant Iran in accordance with the FSIA. The Court may exercise
' '
personal jurisdiction over defendant Iran. 18
Service on agencies or instrumentalities of foreign states, rather than the foreign states
themselves, is governed by 28 U.S.C. § 1608(b). Subsection 1608(b)(3)(C) authorizes service to
be made "by delivery of a copy of the summons and complaint, together with a translation of each
into the official language of the foreign state ... as directed by order of the court consistent with
the law of the place where service is to be made" provided service is "reasonably calculated to
give actual notice." This Court previously found that plaintiff had unsuccessfully attempted to
serve Bank Saderat via international registered mail in Iran and granted permission to attempt
service against Bank Saderat at the address on record with OFAC. ECF Nos. 25 & 26. The Clerk
of Court certified mailing the specified documents, translated as required, to Bank Saderat's office
in Paris, France on August 5, 2014. ECF No. 61. The Court received confirmation that copies of
the summons and complaint were delivered via Federal Express on August 8, 2014. ECF No. 62.
This Court ordered entry of default by Order dated April 8, 2015. ECF No. 64. Default was
entered the following day. ECF No. 65. In light of these filings, the Court concludes that plaintiff
has complied with section 1608(b) and has, therefore, properly served defendant Bank Saderat in
accordance with the FSIA.
Further, no minimum contacts analysis is required. Though the mm1mum contacts
threshold for personal jurisdiction clearly does not apply to foreign state defendants like Iran, this
is not always the case with an agency or instrumentality. The question turns on whether the foreign
18
The Court also notes that no minimum contacts threshold must be met as to defendant Iran, either as a matter of
constitutional or customary international law. See Va/ore, 700 F. Supp. 2d at 70-71 (concluding that Iran, as a foreign
state, was not protected by the Fifth Amendment's Due Process Clause and that customary international law did not
come into play because it cannot prevail over a contrary federal statute). Satisfaction of section 1330(b) is all that is
required for assertion of personal jurisdiction over defendants.
29
state in question exercised sufficient, plenary control over the entity to make it an agent of the
state-one that is "barely distinguishable from an executive department of the government." See
TMR Energy Ltd v. State Prop Fund of Ukraine, 411 F.3d 296 301-02 (D.C. Cir. 2005); Va/ore,
700 F. Supp. 2d at 71.
In TMR Energy, the State of Ukraine had plenary control over the State Property Fund,
which had been created to implement Ukraine's privatization plan following the dissolution of the
USSR, because the Fund's operations were funded and regulated by, and its leaders were chosen
by, the State. Here, Bank Saderat was nationalized by the Iranian government in 1979 and has
operated as a state-run bank since. It is funded, regulated by, and primarily owned by Iran or
persons and entities under control of the Iranian government. Further, it is used by the Iranian
government to further state policies of supporting and funding terrorist organizations around the
world. The Court therefore finds that Iran exercises sufficient control over Bank Saderat to make
it an agent of the state, barely distinguishable from an executive department of the government of
Iran. As a result, no further minimum contacts analysis is required, and the Court may exercise
personal jurisdiction over defendant Bank Saderat based solely on service under 28 U.S.C. § 1330.
B. Timeliness
Section 1605A includes a limitations provision, at subsection (b), setting out a series of
time periods within which an action under the section "may be brought or maintained." 28 U.S.C.
§ 1605A(b). This Court has held that section 1605A's limitations provision is not jurisdictional.
See Worley v. Islamic Republic of Iran, 75 F. Supp. 3d 311, 328 (D.D.C. 2014). Nonetheless, the
Court shall briefly explore the matter because it concludes that plaintiff has complied with the
statute of limitations regarding some-but not all-relief sought here.
30
Section 1605A(b) provides
.
that an action may be brought
. "not later than .... 10 years after
the date on which the cause of action arose." 28 U.S.C. § 1605A(b)(2). Plaintiffs complaint
includes several causes of action, including assault, wrongful death and survivorship claims for
the death of Yehuda Shoham, and intentional (IIED) and negligent (NIED) infliction of emotional
distress caused by the injury and death of Yehuda. Compl. 40-45. "The statute oflimitations on a
tort claim ordinarily begins to run when the plaintiff sustains a tortious injury .... " Amobi v.
District of Columbia Dep't of Corr., 755 F.3d 980, 994 (D.C. Cir. 2014) (quoting Beard v.
Edmondson & Gallagher, 790 A.2d 541, 546 (D.C. 2002)). Accordingly, the attack giving rise to
this action occurred on June 5, 2001, and Yehuda Shoham died six days later on June 11, 2001.
Plaintiffs cause of action for assault arose on the date of the assault: June 5, 2001.
Similarly, survivorship claims accrue in the decedent's favor before his death, and may be
brought after his death by his estate. See RESTATEMENT (SECOND) OF TORTS§ 926; D.C. Code§
12-101. Such claims do not arise from the death, but from the injury itself. Greater Se. Community
Hosp. v. Williams, 482 A.2d 394, 397 (D.C. 1984). 19 "Accordingly, a survival action generally
accrues on the date of the decedent's injury, and not on the date of the decedent's death." Arrington
v. District of Columbia, 673 A.2d 674, 678 (D.C. 1996) (citation omitted). Thus, any survival
action here also accrued on the date ofYehuda's injuries: June 5, 2001.
Claims for intentional infliction of emotional distress requires a showing of (1) extreme
and outrageous conduct on the part of the defendants, which (2) intentionally or recklessly (3)
causes the plaintiff severe emotional distress. Futrell v. Dep 't of Labor Fed. Credit Union, 816
A.2d 793, 808 (D.C. 2003). Negligence cases require a different showing of (l) that the defendant
owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the plaintiff that was
19
Such claims often include pain and suffering resulting from assault, battery, or IIED.
31
proximately caused by the breach. Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 793 (D.C.
. .
2011 ). Here, the conduct complained of-whether it constitutes extreme and outrageous conduct
or merely breach of a duty-is the rock-throwing attack, and the injury at issue is the
"extraordinary grief and mental anguish . . . [caused by] the serious injury and death upon
[Batsheva Shoham's] child, Yehuda Shoham." Compl. 43 (emphasis added). Because Batsheva
Shoham sustained tortious injuries-e.g. grief, mental anguish, etc-at the time Yehuda was first
injured, the IIED/NIED claim also accrued on the date of the attack: June 5, 2001. To be timely
then, plaintiff must have filed claims for assault, survivorship, or IIED/NIED by June 5, 2011
Finally, claims for wrongful death are based on the death itself, and not the underlying
injuries that may have caused that death. Indeed, D.C. Code § 16-702 clearly states that the statute
of limitations for wrongful death actions in D.C. begins "after the death of the person injured."
Accordingly, this claim arose on the date ofYehuda's death: June 11, 2001. To be timely, plaintiff
must have filed a claim for wrongful death by June 11, 2011.
Plaintiff filed this action on April 2, 2012, more than 10 years from the date any cause of
action arose. However, Shoham had originally filed her claims as part of a separate case-
Binyamin Pilant et al. v. Islamic Republic of Iran et al., Case No. 1: 11-cv-1077-before Judge
Collyer. Judge Collyer filed an order [ECF No. 45] dated February 28, 2012 dismissing all claims
other than those brought by the Pilant family and ordering those claims refiled within 30 days as
separate cases. Those claims-including those of Batsheva Shoham-relate back to the original
filing date in the Pilant case: June 9, 2011.
It appears that plaintiffs claims for assault, survivorship, and IIED/NIED were filed just
four days outside the 10-year statute of limitations. Therefore, they are untimely. However,
because the wrongful death claim was filed before June 11, 2011, that claim is timely. Accordingly,
32
because the wrongful death claim is timely under section 1605A of the FSIA, the Court will
proceed as to defendants' liability.
C. FSIA Liability
The state sponsored terrorism exception provides a private right of action. The action is
available to, among others, nationals of the United States and the legal representatives of such
persons. 28 U.S.C. § 1605A(c). Foreign states that meet subsection (a)(2)(A)(i)'s requirements
as state sponsors of terrorism may be held liable under subsection (c). Id.
Section 1605A's private right of action has four basic elements. A plaintiff must prove:
(1) "an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of
material support or resources for such an act" where (2) the act was committed, or the material
support was provided, by the foreign state or agent of the foreign state, and the act (3) caused
personal injury or death (4) "for which courts of the United States may maintain jurisdiction under
this section for money damages." Id. § 1605A (a)(l), (c).
1. Threshold determination of plaintiff's and defendants' statuses
The Court first determines whether the parties are such that subsection (c)' s cause of action
may be pursued.
a. Defendants are state sponsors of terrorism
Defendants, for the reasons stated above in Part III.A.2, are state sponsors of terrorism
within the meaning of28 U.S.C. § 1605A(a)(2)(A)(i) and may be held liable.
b. Entitlement ofplaintiff to bring section 1605A(c) action
Plaintiff here may pursue section l 605A(c)' s private right of action. Batsheva Shoham is
a citizen of the United States and, therefore, falls within subsection (c)(l)'s ambit. However,
Yehuda Shoham was not himself a United States national, and is not entitled to bring suit under
33
the FSIA. Accordingly, Batsheva Shoham may only recover individually and not as the
administrator of Yehuda' s estate
2. Act
For the reasons stated in Part III.A. I .a, the Court finds that the acts giving rise to this case
are of the type for which a foreign state may be held liable under section 1605A(c). Specifically,
the evidence establishes that acts of extrajudicial killing were committed by a member of Fatah
Tanzim and that a reasonable connection exists between the rock-throwing attack here and material
support that defendants provided to Fatah Tanzim to encourage and incite such attacks.
3. Actor
Defendants may only be held liable under section 1605A(c) if the acts of extrajudicial
killing were committed or the provision of material support made by defendants themselves or by
their agents. 28 U.S.C. § 1605A(c). The facts found by the Court show that Iran and Bank Saderat,
an agency or instrumentality of Iran, provided organizational support and funding to Hezbollah,
Fatah Tanzim, and AAMB, as well as the members of those organizations. Therefore, Iran itself
is treated as having provided material support to Fatah Tanzim and AAMB
4. Theory of recovery-causation and injury
Plaintiff alleges defendants are liable based on the provision of material support and
resources for acts of extrajudicial killing, namely rock-throwing attacks. The elements of
causation and injury under section 1605A(c) require plaintiffs "to prove a theory ofliability" which
justifies holding the defendants culpable for the injuries that the plaintiffs have allegedly suffered.
Valore, 700 F. Supp. 2d at 73; see also Rimkus, 750 F. Supp. 2d at 175-76 ("[P]laintiffs in§ 1605A
actions ... must articulate the justification for such recovery, generally through the lens of civil
tort liability."). While section 1605A(c) requires courts to determine the substantive basis for
34
liability arising under it, the court is not given the authority (or duty) to articulate "federal common
law." Va/ore, 700 F. Supp. 2d at 76. Instead, because liability under section 1605A(c) is based
on "statutory rights," federal judges are instructed to "find the relevant law, not to make it." Bettis
v. Islamic Republic of Iran, 315 F.3d 325, 333 (D.C. Cir. 2003). Thus, judges may not "fashion a
complete body of law" in considering claims under section 1605A(c). Id Based on the D.C.
Circuit's guidance, district courts in this jurisdiction "rely on well-established principles of law,
such as those found in the Restatement (Second) of Torts and other leading treatises, as well as
those principles that have been adopted by the majority of state jurisdictions" to define the
elements and scope of these theories of recovery. Oveissi, 879 F. Supp. 2d at 54 (quoting In re
Terrorism Litig., 659 F. Supp. 2d 31, 61(D.D.C.2009)).
As discussed above, plaintiff seeks to recover economic damages arising from Yehuda's
wrongful death, as well as non-economic survival damages for Yehuda's pain and suffering prior
to his death, non-economic damages for the assault on Batsheva Shoham and Yehuda Shoham,
and non-economic solatium damages for IIED or NIED. Compl. 40-45. Plaintiff also seeks
punitive damages, as allowed by 28 U.S.C. § 1605A. Id Finally, plaintiff seeks to recover
damages arising from violations of the Torture Victims Protection Act (TVPA), Pub. L. 102-256,
106 Stat. 73. Id The Court will consider these theories of recovery below.
For the reasons discussed above, the estate of Yehuda Shoham is not entitled to bring suit
under 28 U.S.C. § 1605A. Accordingly, the claims brought by the estate of Yehuda Shoham-
including survivorship and assault claims-will be dismissed. The Court will consider only the
theories ofrecovery as to Batsheva Shoham individually.
35
a. Wrongful death
Plaintiff seeks recovery for economic losses arising from the wrongful death of Yehuda
Shoham, pursuant to 28 U.S.C. § 1605A and the wrongful death statute for the District of Columbia
D.C. Code§ 16-2701. 20 According to D.C. law:
When, by an injury done or happening within the limits of the
District, the death of a person is caused by the wrongful act, neglect,
or default of a person or corporation, and the act, neglect, or default
is such as will, if death does not ensue, entitle the person injured, or
if the person injured is married or domestic partnered, entitle the
spouse or domestic partner, either separately or by joining with the
injured person, to maintain an action and recover damages, the
person who or corporation that is liable if death does not ensue is
liable to an action for damages for the death, notwithstanding the
death of the person injured, even though the death is caused under
circumstances that constitute a felony.
Id "In other words, a decedent's heirs may pursue claims for "economic losses which result from
a decedent's premature death." Va/ore, 700 F. Supp. 2d at 82. Such losses include the "1) ... the
loss of financial support the decedent could have been expected to provide the next of kin had he
lived; and (2) the value of lost services (e.g., care, education, training, and personal advice)."
Herbert v. D.C., 808 A.2d 776, 778 n. 2 (D.C. 2002).
It is axiomatic that acts of terrorism under section 1605A-including extrajudicial killing
or material support thereof-are, by definition, wrongful. Any deaths resulting from an act of
\
terrorism under section 1605A are properly considered wrongful deaths, and a plaintiffs recovery
under a wrongful death theory of liability is appropriate. Thus, where a foreign state or an
agency/instrumentality thereof is liable for an extrajudicial killing, or the provision of material
2
°Consistent with prior opinions by this Court, such claims are construed as being pied under § 1605A and not the
D.C. Code, as consideration solely under the D.C. Code would preclude recovery based on geographic limitation to
injuries occurring "within the limits of the District." D.C. Code§ 16-2701(a); Valore, 700 F. Supp. 2d at 82.
36
support thereof, it may be liable for the economic damages experienced by the decedent's heirs
under the D.C. Code and the FSIA. Id
Critically, however, plaintiffs must establish that the wrongful death was caused by
defendant's conduct. 28 U.S.C. § 1605A(a)(l), (c); D.C. Code § 16-2701(a). While the Court
previously addressed the issue of jurisdictional causation-which is governed by the "reasonable
connection" standard-it has not yet addressed whether the plaintiff has provided proof satisfying
the substantive cause of action. Cf Kilburn, 376 F.3d at 1129 (suggesting that satisfaction of
jurisdictional causation standard for § l 605A does not necessarily satisfy the attendant causation
standard for the underlying substantive theory ofliability). The Court will therefore assess whether
Shoham has provided sufficient evidence to satisfy the substantive cause of action for wrongful
death.
"To obtain damages against a non-immune foreign state under the FSIA, a plaintiff must
prove that the consequences of the foreign state's conduct were 'reasonably certain' (i.e., more
likely than not) to occur, and must prove the amount of damages by a 'reasonable estimate'
consistent with this [Circuit]'s application of the American rule on damages." Salazar v. Islamic
Republic of Iran, 370 F. Supp. 2d 105, 115-16 (D.D.C. 2005) (quoting Hill v. Republic of Iraq,
328 F.3d 680, 681 (D.C. Cir. 2003)) (internal quotation marks omitted). As noted above, the
specific conduct complained of here is the provision of material support and resources to Fatah
Tanzim, AAMB, and al-Manar to encourage and incite rock attacks against Israelis. Therefore,
plaintiff was required to prove that the consequences of this material support-i. e. the death of
Y ehuda Shoham at the hands of Muayid Kafina-was reasonably certain, or more likely than not,
to occur as a result of the material support provided. Id.37
The evidence presented failed to establish causation to the satisfaction of the Court. That
is, the Court is not satisfied that the evidence presented shows that defendants' support of Fatah
Tanzim, AAMB, or al-Manar made Muayid Katina's attack on the Shohams more likely than not
to occur. Put another way, it is unclear that Muayid Katina attacked the Shohams because he was
a member of Fatah Tanzim, or because of material support provided to the organization by Iran
and Bank Saderat. Though he admitted to being a member of Fatah Tanzim, there is simply no
evidence that Katina received direction, funding, or support from anyone to perpetuate the attack,
including Iran or Bank Saderat. In fact, he stated in his confession that Israeli settlers had thrown
stones at him during a trip with Sakar Saleh, and that afterwards he, Mahmud Ibrahim Khatib,
Muhamad Bik, and Sakar Saleh met in a mosque and decided to "go out and throw stones on the
cars of settlers." June 17 Katina Statement. There was no evidence presented that the group
comprised a Fatah Tanzim terrorist cell, or that any of the other rock throwers on June 5, 2001
were members of Fatah Tanzim or another terrorist organization. Further, there was no evidence
presented that Fatah Tanzim, or any other group, helped coordinate that meeting, or fund, organize,
or perpetuate the attack. In fact, there is no evidence that Katina-the only known member of a
terrorist organization present at the time-was leading the meeting or convinced the others to
throw stones. 21 There was no evidence before this Court that Fatah Tanzim, AAMB, or any other
terrorist organization even claimed responsibility for the attack. Nor was there evidence that this
attack was planned or perpetuated by Katina in his capacity as a member of Fatah Tanzim.
21
Though the Court previously found that it is likely that Katina's group was likely the one responsible for hitting the
Shoham' s vehicle, it is not clearly established that Katina himselfthrew the rock that hit the vehicle and killed Yehuda
Shoham. Assuming arguendo that another person in Katina's group threw the rock that killed Yehuda, there would
be even less of a connection between the attack and Fatah Tanzim unless there is evidence that Katina himselflead or
otherwise prompted the group to throw stones. But the Court has seen no such evidence. This further attenuates the
connection between the attack and Fatah Tanzim, and ultimately between the attack and defendants Iran and Bank
Saderat.
38
There was also no evidence presented that Katina was motivated or incited by al-Manar
programming to throw rocks at Israelis. Nor was there evidence that Fatah Tanzim or AAMB
officials used al-Manar to direct rock-throwing attacks in the relevant area. Indeed, this Court
received no evidence that Katina had ever even watched al-Manar or viewed programming
encouraging rock-throwing attacks. Though plaintiffs expert did testify that al-Manar was
broadcast in the area where Katina resided, the Court cannot reasonably infer that he watched al-
Manar, or that he viewed any particular programming encouraging rock-throwing attacks, or that
any such programming influenced his decision to attack the Shohams on June 5, 2001.
Finally, there was no evidence presented that Katina, his family, or any of the other rock
throwers have received benefits from the Martyrs Foundation or any other organization as
compensation for conducting an attack against Israelis. There is also no evidence suggesting that
Katina or his group was motivated to throw rocks at Israelis to collect on the bounty established
by that fund, or that they expected to be compensated in any way.
The Court pauses to note, however, that it is deeply troubled by the conduct alleged here
regarding Iranian support of the Martyrs Foundation, or of any similar organization, for the
purpose of encouraging attacks on Israelis. To be clear, plaintiff suggests that defendants funnel
money to foundations with the intent of encouraging violent attacks by compensating the attacker
for services rendered. As far as the Court can recall, this is the first time such conduct has been
presented. If true-as plaintiff suggests-this is the functional equivalent of a foreign state laying
a bounty on the heads of Israelis. According to plaintiff, payment-blood money-is made to the
families of attackers regardless of whether those killed are innocent civilians, tourists in a local
market, or perhaps even an infant child traveling with his parents. A foreign state setting functional
bounties on the heads of civilians is indistinguishable from the direct solicitation of murderers or
39
terrorists for hire, and strikes this Court as a particularly devious state policy that certainly rises to
. . .
the level of material support of acts of extrajudicial killing under section 1605A. This Court would
find no difficulty in extending FSIA liability to any foreign state, political subdivision, or agency
or instrumentality thereof, who enact such policies and cause personal injury or death as a result.
In short, if the evidence presented to the Court established a causal link between such payments
and a terrorist attack, the Court would not hesitate to hold the appropriate parties liable.
However, as noted here, the Court is not convinced, based on the evidence presented, that
the Martyrs Foundation, or any other fund, caused the June 5, 2001 attack on the Shohams.
Ultimately, there was no evidence presented that Katina accepted, or even sought payments from
any organization after the attack. There was no evidence presented that the attack utilized any
resources, monetary or otherwise, of Fatah Tanzim or AAMB. Thus, it remains unclear to the
Court whether Katina's membership in Fatah Tanzim was actually a reason for his participation
in the attack. In other words, the Court is unsatisfied that the attack is fairly attributable to Fatah
Tanzim or AAMB, and therefore to Iran or Bank Saderat, or whether it is more accurately
characterized as senseless violence or criminal malfeasance.
In other cases before this Court, the responsibility of a terrorist organization for the attack
is relatively clear, backed up by reports and testimony from experts, police, and intelligence
officials. See Roth v. Islamic Republic of Iran, 78 F. Supp. 3d 379, 388 (D.D.C. 2015) (where it
was clear that Hamas was responsible for a suicide bombing in which there was a videotape
confession of the bomber, the bomber's father described his son as being a member ofHamas, and
two members of Hamas were arrested for helping the bomber identify the target and getting him
to the target); Greenbaum v. Islamic Republic of Iran, 451 F. Supp. 2d 90, 95 (D.D.C. 2006)
(finding Hamas responsible for the same attack because the attacker was a member and
40
"[s]ubsequent
.
confessions and other statements to Israeli police and news organizations. verified
' '
that Hamas was responsible for the attack"); Eisenfield v. Islamic Republic of Iran, 172 F. Supp.
2d 1, 4 (D.D.C. 2000) (where a passenger on a bus denoted a bomb "at the direction of Hamas"
after joining Hamas, meeting with representatives in Tehran, and training for months with Iranian
officials outside a military base in Tehran, and Hamas "immediately claimed credit); Weinstein v.
Islamic Republic ofIran, 184 F. Supp. 2d 13, 19 (D.D.C. 2002) (same); Bodoffv. Islamic Republic
ofIran, 424 F. Supp. 2d 74 (D.D.C. 2006) (same); Peterson I, 264 F. Supp. 2d 46, 53-54 (D.D.C.
2003) (where Iran's complicity in the Beirut bombing was extensively documented, in part by
intercepted messages from Tehran directing Islamic Amal, and later Hezbollah, to instigate attacks
against Marines in Lebanon); Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258, 261-
62 (D.D.C. 2003) (Urbina, J.) (where Hamas members carried out suicide bombings and members
of their Hamas cell "gave Israeli authorities a detailed account of the planning, funding, and
execution" of the attack). This case is differe11t. The evidence was supplied largely by three
experts: the Israeli police investigator who investigated the attack, a historian, and a policy fellow
with expertise in terrorist financing and media. While the Court is exceedingly grateful for their
testimony, the evidentiary record here is relatively thin in comparison to other cases previously
before this Court.
At bottom, Muayid Katina-and his membership in Fatah Tanzim-is the only apparent
link between the June 5, 2001 attack and defendants Iran and Bank Saderat. Yet plaintiffs own
evidence suggests differing reasons for the attack. Specifically, Katina stated that he decided to
throw rocks (1) "because of the security situation" in the West Bank and (2) in retaliation for
having rocks thrown at him by Israeli settlers. Aweeda Deposition 18:1-3; June 17 Katina
Statement. The evidence does not show, and the Court cannot infer, that Iran and Bank Saderat's
41
funding of Fatah Tanzim, AAMB, or al-Manar made the June 5, 2001 attack reasonably certain,
. .
or more likely than not to occur. In the Court's estimation, based on the evidence before it, it is
just as likely that Katina decided to throw rocks in retaliation for having rocks thrown at him by
Israeli settlers. While it appears undeniable that Iran and Bank Saderat provide material support
to Fatah Tanzim, AAMB, and al-Manar, there was simply no evidence presented to the Court that
such material support caused Katina, or the other rock throwers, to attack the Shohams on the night
of June 5, 2001. Accordingly, the Court is not satisfied that the evidence presented establishes a
right to relief, and 28 U.S.C. § 1608(e) precludes this Court from entering default judgment.
b. Intentional and/or negligent infliction of emotional distress
At the outset, the Court notes that plaintiffs IIED and NIED claims are untimely for the
reasons discussed in Part III.B. However, the Court will outline the claims below.
Under the laws of the District of Columbia, plaintiff may recover for negligent infliction
of emotional distress under two tests. "The well-established 'zone of danger' test allows a plaintiff
to recover 'for mental distress if the defendant's actions caused the plaintiff to be 'in danger of
physical injury' and if, as a result, the plaintiff 'feared for his own safety.'" Lesesne v. District of
Columbia, 146 F. Supp. 3d 190, 195 (D.D.C. 2015) (quoting Hedgepeth, 22 A.3d 789, 796 (D.C.
2011) (en bane)). "Alternatively, the D.C. Court of Appeals permits NIED claims when a plaintiff
was not within the zone of danger but where there is a 'special relationship' between the parties."
Id.While Batsheva was certainly within a zone of danger at the time of the attack, she appears
not to have been in any fear for her own safety at the time of the attack. Batsheva Shoham testified
that she had been sleeping in the backseat with Yehuda when the rock attack came through the
windshield. Batsheva Testimony 17: 11-18-12. While she was sleeping, she heard a loud noise that
42
woke her
. up, but it was dark and she did not know what had
.
happened until Binyamin
.
pulled over
and turned on the lights. Id Accordingly, the Court finds that Batsheva did not fear for her own
safety and cannot recover under a "zone of danger" NIED theory.
Alternatively, the Court is not aware of any special relationship between Batsheva Shoham
and Muayid Katina such that a duty existed to avoid negligent conduct that would cause serious
emotional distress. Accordingly, the Court finds that plaintiff has not provided adequate evidence
to justify a finding of liability under a "special relationship" NIED theory either. However, this is
not a case of negligent conduct, but rather intentional conduct. The proper focus then is plaintiffs
claim of solatium damages for defendants' intentional infliction of emotional distress.
Relying principally on the Restatement (Second) of Torts, this Court has set out the
following standard for recovery on a theory of IIED in section 1605A(c) cases: "One who by
extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress, and if bodily harm to the other results
from it, for such bodily harm." Estate of Heiser, 659 F. Supp. 2d at 26 (quoting RESTATEMENT
(SECOND) OF TORTS§ 46(1)). This Court has previously held that "[a]cts of terrorism are by their
very definition extreme and outrageous and intended to cause the highest degree of emotional
distress." Valore, 700 F. Supp. 2d at 77; Belkin v. Islamic Republic of Iran, 667 F. Supp. 2d 8(D.D.C. 2009); Stethem v. Islamic Republic ofIran, 201 F. Supp. 2d 78, 89 (D.D.C. 2002).
An actor may also be liable for IIED to a party against whom the extreme and outrageous
conduct was not directed if that party is (1) a member of the victim's immediate family and (2)
was present at the time of the extreme and outrageous conduct. See Murphy v. Islamic Republic
of Iran, 740 F. Supp. 2d 51, 75 (D.D.C. 2010) (citing RESTATEMENT (SECOND) OF TORTS §
46(2)(a)). The "immediate family" requirement is strictly construed in FSIA cases; generally, only
43
spouses, parents, siblings, and children are entitled to recover. Id. As to the issue of presence, this
. . .
Court has previously held that one "need not be present at the time of a terrorist attack upon a third
person to recover for severe emotional injuries suffered as a result." Va/ore, 700 F. Supp. 2d at
80. This is because terrorism is sufficiently extreme and outrageous to demonstrate that it is
intended to inflict severe emotional harm on even those not present at the site of the act. Id.Here, Batsheva Shoham was present for both the attack and the death of her son, and there
is no doubt that severe emotional distress did-and continues to-result. Also, the evidence
establishes that Iran and Bank Saderat intentionally provided material support to Hezbollah, Fatah
Tanzim, and AAMB with the intent to support, encourage, and incite attacks like the one that killed
Yehuda Shoham. However, for the reasons discussed in Part III.C.4.a, plaintiff has failed to
establish substantive causation between defendants' general support ofFatah Tanzim, AAMB, and
al-Manar, and the June 5, 2001 attack. Accordingly, the Court is not satisfied that the evidence
presented establishes a right to relief, and 28 U.S.C. § 1608(e) precludes this Court from entering
default judgment.
c. Torture Victims Protection Act
The TVPA provides a cause of action for civil suits against individuals who commit, aid,
or abet acts of torture or extrajudicial killing. Specifically, the TVP A provides
An individual who, under actual or apparent authority, or color of
law, of any foreign nation-
( I) subjects an individual to torture shall, in a civil action, be
liable for damages to that individual; or
(2) subjects an individual to extrajudicial killing shall, in a
civil action, be liable for damages to the individual's legal
representative, or to any person who may be a claimant in an
action for wrongful death.
44
Pub. L. 102-256, 106 Stat. 73,
. § 2(a). While the Act .defines "torture" and "extrajudicial
.
killing,"
it does not define "individual." 22 The Supreme Court has determined that the ordinary meaning
of that word, and the statutory context of the TVP A language, evinces Congress' intent to extend
liability under the TVP A "solely against natural persons." Mohamad v. Palestinian Authority, 566
U.S. 449, 132 S. Ct. 1702, 1708 (2012). In doing so, the Supreme Court expressly rejected an
application of the TVP A toward an "organizational entity" such as the Palestinian Authority,
despite the likelihood that it would foreclose remedies for victims and their families. Id. at 1710.
Plaintiffs claims here lie solely against the Islamic Republic of Iran and Bank Saderat.
Truly there can be no entity more "organizational" than a nation state, or the instrumentality or
agency thereof. The Court sees no basis for distinguishing this case or departing from the Supreme
Court's construction of the TVPA that "Congress did not extend liability tQ organizations,
sovereign or not." Id. at 1710 (emphasis added). "There are no doubt valid arguments for such an
extension. But Congress has seen fit to proceed in more modest steps in the [TVPA], and it is not
the province of [the Judicial] Branch to do otherwise." Id. at 1711. Accordingly, a theory of
liability by which plaintiff seeks to recover against a sovereign nation under the TVP A must fail.
Plaintiffs may not pass TVPA claims through 1605A to recover against organizational entities.
Because plaintiffs claims are solely against organizational entities, this Court is unable to
grant default judgment. Those claims will be dismissed.
22
"Extrajudicial killing" means "a deliberated killing not authorized by a previous judgment pronounced by a
regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized
peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out
under the authority of a foreign nation." § 3(a). "Torture" means "any act, directed against an individual in the
offender's custody or physical control, by which severe pain or suffering (other than pain or suffering arising only
from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that
individual for such purposes as obtaining from that individual or a third person information or a confession, punishing
that individual for an act that individual or a third person has committed or is suspected of having committed,
intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind." §
3(b).
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d. Assault
Section 1605A extends liability for personal injury or death caused by an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or
resources for such an act by a foreign state. Thus, a plaintiff who suffers an assault or battery
from-but is not killed by-such an act may still recover under 1605A. Plaintiffs claims here
include those for personal injury to herself as a result of assault. Compl. 42. Again, for the reasons
stated in Part III.B, Batsheva Shoham's individual claims for assault resulting from the June 5,
2001 attack are untimely. However, the Court will again outline the claim.
A defendant is liable for assault if, when it provided material support committed
extrajudicial killing or provided material support and resources therefor, (1) it acted "intending to
cause a harmful contact with ... or an imminent apprehension of such a contact" by those attacked
and (2) those attacked were "thereby put in such imminent apprehension." Valore, 700 F. Supp.
2d at 76 (quoting RESTATEMENT (SECOND) OF TORTS§ 21(1)). While it is clear that the attackers
acted with intent to cause harmful contact or the imminent apprehension thereof, it is also clear
that Batsheva Shoham did not actually suffer such apprehension. As noted above, Batsheva
Shoham testified that she had been sleeping in the backseat with Yehuda when the rock attack
occurred. Batsheva Testimony 17:11-18-12. While she was sleeping, she heard a loud noise that
woke her up, but it was dark and she did not know what had happened until Binyamin pulled over
and turned on the lights. Id. Accordingly, Batsheva did not suffer any apprehension, and the claims
for assault must be dismissed.
Further, as with the IIED/NIED claims, plaintiff has failed to establish substantive
causation between defendants' general support of Fatah Tanzim and the June 5, 2001 attack.
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Accordingly, the Court. is not satisfied that the evidence
. presented establishes
.
a right to relief, and
28 U.S.C. § 1608(e) precludes this Court from entering default judgment.
5. Jurisdiction
For the reasons laid out above in Part III.A. I, the Court "may maintain jurisdiction" over
this suit. However, in light of plaintiff's failure to satisfy of 28 U.S.C. 1605A(c)'s requirements
to the satisfaction of this Court, the Court concludes that defendants may not be held liable under
the basis of the FSIA or the underlying theories of recovery contained in the complaint.
D. Liability Under Non-Federal Law
In Counts III and IV of her complaint, plaintiff pleads claims for assault and IIED action
arising under both section 1605A's private right of action and "federal and state common law."
Compl. 42-43. Section 1605A(c) authorizes recovery for "personal injury or death caused by acts
[of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material
support or resources for such an act]." However, as noted, plaintiff has failed to establish claims
for common law assault, and has failed to provide evidence satisfactory to the Court as to
substantive causation for any of her claims, including IIED/NIED or assault. Further, this Court
is unaware of a causation standard that would allow recovery under either federal or state common
law. Accordingly, federal and state common law provide no additional theories of liability upon
which this Court may grant default judgment. Those too will be dismissed.
E. Damages
The Court is unable to reach the issue of individual economic and non-economic damages
sustained by plaintiff based on the record and failure of the evidentiary record to establish
defendants' liability. While no amount of damages can truly compensate the family of a murdered
child for the magnitude of their loss, the Court regrets that it is unable to attempt to compensate
47
plaintiff for the agony she has endured. But the rule of law is not a rubber stamp. This Court is
. . .
duty-bound to scrutinize the claims and evidence before it, and plaintiffs burden is to satisfy the
applicable legal standards set forth under the FSIA and the laws of the United States and the
District of Columbia. As presented to this Court, they do not.
Further, plaintiffs requested relief includes punitive damages in the amount of
$300,000,000.00. Punitive damages are explicitly made available under section 1605A's cause of
action for the purpose of punishing and deterring foreign states from engaging in or materially
supporting terrorism. See Bodoff v. Islamic Republic of Iran, 907 F. Supp. 2d 93, 105 (D.D.C.
2012). Four factors are relevant in deciding the level of punitive damages appropriate in a given
case: "(1) the character of the defendants' act, (2) the nature and extent of harm to the plaintiffs
that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of
the defendants." Id. (internal citation omitted). One additional factor is relevant: in situations
where punitive damages have been awarded repeatedly against a defendant for the same conduct
in a series of lawsuits, the Court should consider whether to limit such damages so as not to over-
punish that defendant for that particular conduct. See Murphy, 740 F. Supp. 2d at 81. In cases
where this factor has been salient, the Court has tied punitive damages to compensatory damages
by applying a multiplier to the amount of compensatory damages awarded. Id. at 81-83.
However, any finding of damages is predicated on a finding ofliability "for personal injury
or death caused by acts [of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the
provision of material support or resources for such an act]." 28 U.S.C. § 1605A(c). Though this
Court has determined that Iran and Bank Saderat have materially supported terrorism in this and
in previous holdings, plaintiff has failed to provide satisfactory evidence as to causation in this
particular case. Therefore, despite the abhorrent and deplorable conduct of Iran and Bank Saderat
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in encouraging and inciting attacks like. the ones suffered by the .Shohams, this Court lac~s the
legal authority to impose punitive damages or levy any deterrence against Iran for its continued
indecency and inhumanity. Suffice to say that this Court regrets that it is unable to do so.
V. CONCLUSION
In sum, although plaintiffs evidence clearly establishes links between Iran, Hezbollah,
Fatah Tanzim, and AAMB, the FSIA requires plaintiffs to establish causation between a
defendant's conduct and plaintiffs damages. For the reasons discussed above, the Court
determines that the evidence before it is insufficient to find defendants Iran and Bank Saderat
caused the June 5, 2001 attack that resulted in the death of Yehuda Shoham and injuries to his
family. Because 28 U.S.C § 1608(e) provides that no default judgment may be entered against a
foreign state, or an agency or instrumentality of a foreign state, "unless the claimant establishes
his claim or right to relief by evidence satisfactory to the court," this Court cannot issue judgment.
Accordingly, this case shall be dismissed with prejudice.
A separate order shall issue this date.
~c. ~yce C. Lamberth
United States District Judge
DATE: /, /1/, 7
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