Akins v. Islamic Republic of Iran ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TODD AKINS, et al.,
Plaintiffs,
Civil Action No. 17-675 (BAH)
v.
Chief Judge Beryl A. Howell
ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
MEMORANDUM OPINION
On June 25, 1996, a devastating terrorist bomb exploded at the Khobar Towers apartment
complex in Dhahran, Saudi Arabia that housed United States military personnel and contractors
and resulted in the death of nineteen American service members and injuries to scores of other
residents. Compl. at 3 & ¶ 28, ECF No. 1. Fifteen of the injured service members, along with
twenty-three of these members’ “‘immediate family members’ and one family member of
another service member, who was injured in the attack but was not a plaintiff,” sued and
obtained a default judgment against defendants, the Islamic Republic of Iran and the Iranian
Islamic Revolutionary Guard Corps (“IRGC”), jointly and severally, in the total amount of
$104,700,000. Akins v. Islamic Republic of Iran, 332 F. Supp. 3d 1, 9 (D.D.C. 2018) (quoting
Compl. at 3); id. at 46–47. Now, almost a year and a half later, after taking no timely appeal to
challenge any part of the judgment entered in their favor, plaintiffs move, under Federal Rule of
Civil Procedure 60(b), to modify that default judgment and increase the damages awarded to
certain plaintiffs in Akins and to add punitive damages and prejudgment interest to all plaintiffs’
final awards. Pls.’ Mot. Relief Under Rule 60(b) (“Pls.’ Mot.”) at 1, ECF No. 42. For the
reasons detailed below, the motion for relief from judgment is denied.
1
I. BACKGROUND
Prior procedural history in this case as well as new legal developments since the entry of
final judgment are summarized below.
A. Entry of Default Judgment in Akins
On June 25, 1996, fifteen service-member plaintiffs—Todd Akins, George C. Anthony,
Charles Blank, John Gaydos, Kevin James Hurst, Thomas R. Lawrence, Gregory Eric
Leinenbach, Nicholas L. MacKenzie, Jason Porter Remar, Jerry Timothy Sasser, Jr., Frank
David Sills III, Matthew G. Spicer, Alan Jeffrey Wade, Tracy Matthew Winter, and Eric Dale
Ziegler—were present and suffered injury from the Khobar Towers sttack in Dhahran, Saudi
Arabia. Akins, 332 F. Supp. 3d at 13–29; see also Pls.’ Mot. at 2. Over twenty years after the
attack, in 2017, these service-member plaintiffs and their families sued Iran and the IRGC for
damages under the Foreign Sovereign Immunities Act’s (“FSIA”) terrorism exception, 28 U.S.C.
§ 1605A, and ultimately moved for a default judgment when defendants failed to respond.
Akins, 332 F. Supp. 3d at 9.
After finding that defendants were liable for assault on the fifteen service-member
plaintiffs, id. at 35–37, and for intentional infliction of emotional distress as to the service-
member plaintiffs and the 24 family-member plaintiffs, id. at 37–38, plaintiffs were granted
default judgment, id. at 46. 1 The service-member plaintiffs’ awards were calculated based on
two key considerations. First, the calculations relied on the “baseline assumption” that, “when
assessing damages for surviving victims of terrorist hostilities,” “persons suffering injuries in
terrorist attacks are entitled to $5 million in damages.” Id. at 40 (quoting Kaplan v. Hezbollah,
1
Plaintiffs’ Motions as to Liability and for Default Judgment as to Damages were denied as to an additional
sixteenth service-member plaintiff, Christopher Galletto, because he was not present at the Khobar Towers at the
time of the attack, Akins, 332 F. Supp. 3d at 9 n.1, 36 n.11, 37 n.12, 47, and he does not join this motion, Pls.’ Mot.
at 2 n.1.
2
213 F. Supp. 3d 27, 35 (D.D.C. 2016) (quoting Davis v. Islamic Republic of Iran, 882 F. Supp.
2d 7, 12 (D.D.C. 2012))). Second, the calculations were either “moderated . . . upward,” id. at
40, if the individual service-member plaintiff suffered “severe instances of physical and
psychological pain, such as where victims suffered relatively more numerous and severe injuries,
were rendered quadriplegic, including partially lost vision and hearing, or were mistaken for
dead,” or “downward in the face of ‘minor shrapnel injuries or minor injury from small-arms
fire,’” id. (quoting Kaplan, 213 F. Supp. 3d at 35–36 (quoting Valore v. Islamic Republic of Iran,
700 F. Supp. 2d 52, 84 (D.D.C. 2010))). 2
Following close analysis of the sworn affidavits and documentation submitted by
plaintiffs, nine service-member plaintiffs—Akins, Anthony, Blank, Gaydos, Leinenbach, Sasser,
Sills, Wade, and Ziegler—were each awarded $5,000,000 in pain and suffering damages for
“severe physical injuries . . . [and] lasting and severe psychological pain” id. at 40–41 (quoting
Khaliq v. Republic of Sudan, 33 F. Supp. 3d 29, 33 (D.D.C. 2014)); see id. at 13–19, 21–25, 27–
29, 47; five service-member plaintiffs—Hurst, MacKenzie, Remar, Spicer, and Winter—were
each awarded $2,500,000 for “severe emotional injury accompanied by relatively minor physical
injuries,” id. at 41 (quoting Khaliq, 33 F. Supp. 3d at 33); see id. at 14–15, 19–21, 27, 47; and a
single service-member plaintiff, Lawrence, was awarded $1,500,000 for suffering exclusively
“severe emotional injury without physical injury” as a result of the attack, id. at 41 (citing
Kaplan, 213 F. Supp. 3d at 36); see id. at 25–27, 47. Awards for eight service-member
plaintiffs—Akins, Anthony, Gaydos, Leinenbach, Sasser, Sills, Winter and Ziegler—and
2
Plaintiffs additionally moved to appoint a special master to “hear evidence as to the extent of [plaintiffs’]
injuries and to determine damages,” Pls.’ Mem. Supp. Mot. to Take Judicial Notice of Evidence in Related Prior
Cases and for Entry of Default J. as to Liab. and for Appointment of a Special Master to Assess Damages (“Pls.’
Default Mem.”) at 15–16, ECF No. 22-1, which motion was “denied as unnecessary,” Akins, 332 F. Supp. 3d at 10
n.2.
3
consequently the awards of their related family-member plaintiffs, were premised on factual
representations that included information about the “disability ratings” assigned by the
Department of Veterans Affairs (“VA”) to these plaintiffs based on their injuries. Id. at 13–14,
17–19, 21–24, 27. Awards for the remaining seven service-member plaintiffs were also based on
the details provided in their associated declarations, but those declarations made no reference to
any formal disability rating by the VA. See id. at 14–17, 19–21, 25, 27–28 (citing submitted
records for service-member plaintiffs Blank, Hurst, MacKenzie, Lawrence, Remar, Spicer and
Wade).
Additionally, family-member plaintiffs were awarded solatium damages “to compensate
for the emotional distress they experienced as family members of victims of the attacks.” Id. at
42. 3 Solatium damages were awarded according to a “standardized . . . Heiser damages
framework,” id. at 42 (citing Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229,
269 (D.D.C. 2006)), which awards $4,000,000 to spouses of surviving victims, $2,500,000 to
parents of surviving victims, $1,500,000 to children of surviving victims and $1,250,000 to
siblings of surviving victims, id. at 43–45; see also Wultz v. Islamic Republic of Iran, 864 F.
Supp. 2d 24, 39 (D.D.C. 2012) (“[I]n the context of distress resulting from injury to love ones–
rather than death–courts have applied a framework where awards are valued at half the awards to
3
Family-member plaintiffs joining the instant motion are: (1) for service-member plaintiff Charles Blank,
Linda Kay Blank, Nathan Blank, Deborah Millrany, and Andrew P. Blank, Akins 332 F. Supp. 3d at 15–17; (2) for
service-member plaintiff John Gaydos, Barbara Gaydos, Ethan Gaydos, and Elizabeth Gaydos, id. at 17–19; (3) for
service-member Thomas R. Lawrence, Robyn Elizabeth Lawrence, Kimi Lawrence, Bruce Russell Lawrence, and
Andrea Jo Grimson, id. at 25–27; (4) for service-member plaintiff Gregory Eric Leinenbach, Joy Leinenbach, id. at
23–24; (5) for service-member Jerry Timothy Sasser, Jr., Jerry Timothy Sasser, Sr., Deborah Homs, and the estate of
Jason Allen Sasser, id. at 21–23; (6) for service-member plaintiff Matthew G. Spicer, Cathy Eunha Kim Spicer-
Lindsy, Christian William Spicer, and Christopher G. Spicer, id. at 19–21; (7) for service-member plaintiff Alan
Jeffrey Wade, Bonnie C. Wade, Thomas H. Wade, and Michael Kevin Wade, id. at 27–29; (8) for service-member
Tracy Matthew Winter, Angela Rose, id. at 27; (9) for service member Kevin S. Williams, who was injured in the
Khobar Towers attack but is neither a plaintiff in this motion nor in the original judgment, Richard Williams, id. at
29–30; and (10) for service-member plaintiff Eric Dale Ziegler, Nancy Kilfoyle, id. at 24–25.
4
family members of the deceased” (internal quotation marks omitted)); Spencer v. Islamic
Republic of Iran, 71 F. Supp. 3d 23 (D.D.C. 2014) (determining that “[c]hildren of a surviving
victim receive $1.5 million on average”). Consistent with that framework, “‘proportional[]’
downward deviation[s] from the Heiser framework” were also applied where “[the] proposed
solatium award would exceed the pain and suffering award received by a surviving victim.”
Akins, 332 F. Supp. 3d at 44 (quoting Spencer, 71 F. Supp. 3d at 28). Family-member plaintiffs
of severely injured service members received the standard compensation afforded by the Heiser
framework: plaintiff-spouses and ex-spouses Linda Kay Blank, Barbara Gaydos, Joy
Leinenbach, and Nancy Kilfoyle, were each awarded $4,000,000, id. at 44, 47; plaintiff-parents
Jerry Timothy Sasser, Sr., Deborah Homs, Bonnie C. Wade, Thomas H. Wade, and Richard M.
Williams were each awarded $2,500,000, id. at 44–45, 47; plaintiff-children Nathan Blank,
Ethan Gaydos and Elizabeth Gaydos were each awarded $1,500,000, id. at 45, 47; and plaintiff-
siblings Andrew P. Blank, Deborah Millrany, Michael Kevin Wade and the estate of Jason Allen
Sasser were each awarded $1,250,000, id. Family-member plaintiffs related to service-members
who sustained severe emotional injuries and some physical injuries received awards with slightly
less than the standard rates. Specifically, plaintiff-spouses and ex-spouses received eighty
percent of the awards granted to their service-member husbands or ex-husbands, resulting in an
award to plaintiff ex-spouse Cathy Eunha Kim Spicer-Lindsy of $2,000,000 and to plaintiff-
spouse Robyn Elizabeth Lawrence of $1,200,000. Id. at 44, 47. Plaintiff-parents received fifty
percent of the awards granted to their service-member children, resulting in an award to plaintiff
parent Angela Rose of $1,250,000 and to plaintiff parents Kimi Lawrence and Bruce Russell
Lawrence of $750,000 each. Id. at 45, 47. Plaintiff-children received thirty percent of the
amount awarded to their service-member parents, resulting in an award to plaintiff child
5
Christian William Spicer of $750,000. Id. Finally, plaintiff-siblings received twenty-five
percent of the amounts awarded to their respective brothers, resulting in an award to plaintiff-
sibling Christopher G. Spicer of $625,000 and to plaintiff-sibling Andrea Jo Grimson of
$375,000. Id.
Plaintiffs’ requests for prejudgment interest and punitive damages were denied. Id.
at 45–47. Recognizing that “whether pre-judgment interest is to be awarded is subject to the
discretion of the court and equitable considerations,” id. at 45 (quoting Oldham v. Korean Air
Lines Co., 127 F.3d 43, 54 (D.C. Cir. 1997)), this Court determined that none of the plaintiffs
were entitled to prejudgment interest. Adopting then-Chief Judge Lamberth’s analysis in Oveissi
v. Islamic Republic of Iran, 768 F. Supp. 2d 16 (D.D.C. 2011), Akins reasoned that the Heiser
framework awards “represent the appropriate level of compensation, regardless of the timing of
the attack,” Akins, 332 F. Supp. 3d at 46 (quoting Oveissi, 768 F. Supp. 2d at 30 n.12), and that
neither family-member plaintiffs nor service-member plaintiffs provided “any reason why
awards under [the Heiser] framework are insufficient to provide ‘complete compensation,’” id.(quoting West Virginia v. United States, 479 U.S. 305, 310 (1987)); see also id. (finding that
service-member plaintiffs failed to “suggest that awards under the Heiser framework are
insufficient such that prejudgment interest necessary” and noting that the Heiser framework
awards were already designed specifically to compensate for ongoing harm).
Regarding punitive damages, the Court determined that “plaintiffs’ request for . . . at least
$500 million [was] barred by controlling precedent,” id. at 45 (internal citation omitted), since
the D. C. Circuit had instructed that “the FSIA terrorism exception does not retroactively
authorize the imposition of punitive damages against a sovereign for conduct occurring before
the [2008] passage of § 1605A,” Owens v. Republic of Sudan, 864 F.3d 751, 812 (D.C. Cir.
6
2017); see also id. at 818 (“[A] plaintiff proceeding under either state or federal law cannot
recover punitive damages for conduct occurring prior to the enactment of § 1605A”); Akins, 332
F. Supp. 3d at 45. Given that the Khobar Towers attack occurred in 1996, twelve years prior to
the 2008 enactment of § 1605A, plaintiffs were not entitled to punitive damages. Id.
As already noted, plaintiffs took no steps to appeal any part of the ruling leading to entry
of default judgment in Akins, even though plaintiffs’ requests for prejudgment interest and
punitive damages were denied and they were not granted the full extent of compensatory
damages they wanted.
B. New Developments Since Entry of Default Judgment in Akins
Since Akins was decided in 2018, changes have occurred in law and precedent relevant to
determining damages awards under the FSIA for victims of terrorist attacks. First, in 2020, the
Supreme Court held in Opati v. Republic of Sudan that, contrary to the D.C. Circuit’s instruction
in Owens that was applied in Akins, Congress’ 2008 amendments to the FSIA in the National
Defense Authorization Act for Fiscal Year 2008 (NDAA), Pub. L. No. 110–181, 122 Stat. 3,
authorized plaintiffs suing under § 1605A(c) to seek punitive damages for pre-2008 conduct.
140 S. Ct. 1601, 1608–09 (2020). As relevant here, § 1803(c)(2) of the NDAA, in a provision
titled “Prior Actions,” instructed that existing lawsuits that had been “‘adversely affected on the
groun[d] that’ prior law ‘fail[ed] to create a cause of action against the state’ . . . [should be]
given effect ‘as if’ they had been originally filed under § 1605A(c)’s new federal cause of
action.” Id. at 1606 (quoting NDAA § 1083(c)(2)). Put simply, the Supreme Court concluded
that § 1083(c) authorizes retroactive application of “all . . . features of § 1605A(c),” including
punitive damages. Id. at 1609; see also id. (concluding that § 1605A(c) “vests the district court
with discretion to award” punitive damages retroactively).
7
Second, since 2018, this Court has issued three decisions, under the FSIA, relevant to
awards of compensatory damages and prejudgment interest arising from Khobar Towers terrorist
attack that also recognized, as in Akins, the probative value of VA disability ratings in
objectively differentiating injuries suffered by service members, but relied more heavily on those
VA disability ratings to calculate service-member plaintiffs’ awards. See Schooley v. Islamic
Republic of Iran, Civil Action No. 17-1376 (BAH), 2019 U.S. Dist. LEXIS 108011 at *300–06
(D.D.C. Jun. 27, 2019); Aceto v. Islamic Republic of Iran, Civil Action No. 19-464 (BAH), 2020
U.S. Dist. LEXIS 22084 (D.D.C. Feb. 7, 2020); Christie v. Islamic Republic of Iran, Civil Action
No. 19-1289 (BAH), 2020 U.S. Dist. LEXIS 116378 (D.D.C. Jul. 2, 2020). Specifically, using
this more “objective metric,” Schooley, 2019 U.S. Dist. LEXIS 108011 at *301, these three
decisions applied the following rubric: service-member plaintiffs “rated by the VA up to 30%
disabled . . . receive[d] a baseline award of $5,000,000 each; those plaintiffs rated 40–60%
disabled by the VA . . . receive[d] an upward departure, for a total award of $6,000,000 each; and
those service[-]member plaintiffs rated 70–100% disabled by the VA . . . receive[d] a further
upward departure, for a total of $7,000,000 each,” id. at *303; see also Aceto, 2020 U.S. Dist.
LEXIS 22084 at *58; Christie, 2020 U.S. Dist. LEXIS 116378 at *74. Additionally, injured
service-member plaintiffs without a VA disability rating were “awarded damages based on the
descriptive and documentary evidence presented.” Id. (citing Schooley, 2019 U.S. Dist. LEXIS
108011 at *75, Aceto, 2020 U.S. Dist. LEXIS 22084 at *18 and Akins, 332 F. Supp. 3d at 40–
41).
This Court’s decision in Christie also departed from Akins by awarding prejudgment
interest on plaintiffs’ compensatory damages. Relying on two recent district court cases in
which prejudgment interest was awarded in terrorist bombing cases, Christie determined that
8
plaintiffs were entitled to “prejudgment interest at the prime rate,” id. at *62 (quoting Owens v.
Republic of Sudan, 71 F. Supp. 3d 252, 261 (D.D.C. 2014)) (citing Kinyua v. Republic of Sudan,
Civil Action No. 14-2118 (JDB), 2020 U.S. Dist. LEXIS 87792 at *7 (D.D.C. 2020) and Opati v.
Republic of Sudan, 60 F. Supp. 3d 68, 82 (D.D.C. 2014)), to “‘place plaintiffs in the same
position they would have been in had they received (and invested) their damages awards in’
1996,” id. (quoting Owens, 71 F. Supp. 3d at 261) (citing Opati, 60 F. Supp. 3d at 82), and avoid
“plac[ing] plaintiffs at a disadvantage relative to plaintiffs in earlier litigation,” id. at *62 (citing
Estate of Doe v. Islamic Republic of Iran, 943 F. Supp. 2d 180, 184 n.1 (D.D.C. 2013)). 4
Lastly, plaintiffs point out, as part of their argument that relief is warranted under Federal
Rule of Civil Procedure 60(b)(5) because the judgment meets the “prospective” requirement in
that subsection of the Rule, that Congress, after Akins was decided in 2018, enacted two pieces
of legislation extending, through 2039, the United States Victims of State Sponsored Terrorism
(“USVSST”) program, 34 U.S.C. § 20144(e)(6), which “provide[s] a means for creditors with
terrorism judgments against designated state sponsors of terrorism to satisfy the compensatory
portion of their judgments,” JENNIFER K. ELSEA, CONG. RESEARCH SERV., IF0341, JUSTICE FOR
UNITED STATES VICTIMS OF STATE SPONSORED TERRORISM ACT: ELIGIBILITY AND FUNDING 1
(2021); see Justice for United States Victims of State Sponsored Terrorism Act, Pub. L. No. 114-
113, § 404(e)(6)(A), 129 Stat. 3015 (scheduling termination of USVSST program for 2026);
United States Victims of State Sponsored Terrorism Fund Clarification Act, Pub. L. No. 116-69,
§ 1701(b)(1)(D), 133 Stat. 1142 (extending program to 2030); Consolidated Appropriations Act,
2021, Pub. L. No. 116-260, § 1705, 134 Stat. 3293 (to be codified at 34 U.S.C. § 20144(e)(6))
(extending program to 2039). According to plaintiffs, the extension of this program is relevant
4
Plaintiffs in Schooley and Aceto did not request prejudgment interest and thus the issue of prejudgment
interest was not addressed in those decisions.
9
here because “there plainly will be additional payments made” through the program in the future,
and that such future payments give the 2018 judgment in Akins a “prospective” element. Pls.’
Mot. at 3–4.
Plaintiffs filed the instant motion on January 8, 2021, see id. at 1, seeking relief, under
either Rule 60(b)(5) or Rule 60(b)(6) of the Federal Rules of Civil Procedure, to “modify and
increase the damages they were awarded” in Akins, id. at 4. Having received no response from
defendants, either regarding the original judgment or regarding this motion, the motion is now
ripe for review.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 60(b) allows the court, “[o]n motion and just terms,” to
“relieve a party . . . from final judgment” in certain enumerated situations, FED. R. CIV. P. 60(b),
including where “applying [the judgment] prospectively is no longer equitable,” id. 60(b)(5), and
under a catch-all provision authorizing “any other reason that justifies relief,” id. 60 (b)(6).
Motions under Rule 60(b)(5) or 60(b)(6) must be made “within a reasonable time,” id. 60(c), a
determination that requires consideration of the “prejudice to the non-moving party” and the
“litigant[s’] diligence in pursuing review of a decision,” Salazar v. District of Columbia, 633
F.3d 1110, 1118–19 (D.C. Cir. 2011). Considering these guidelines, district courts exercise
discretion in determining whether to grant or deny a motion under Rule 60(b), as the trial court
“must strike a ‘delicate balance between the sanctity of final judgments . . . and the incessant
command of a court’s conscience that justice be done in light of all the facts.” Twelve John
Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988) (emphasis supplied)
(quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)).
III. DISCUSSION
10
Under Rule 60(b)(5) or 60(b)(6), 22 of the 39 plaintiffs awarded damages in Akins now
seek an increase in their compensatory damages awards based on the rubric used to calculate
such awards in subsequent decisions by this Court, and all plaintiffs seek to add punitive
damages and prejudgment interest to their baseline awards. Pls.’ Mot. at 1–2. As support for
these increases in their awards, plaintiffs argue, first, that they are now entitled to punitive
damages in light of the Supreme Court’s 2020 ruling in Opati. Id. at 3. Second, plaintiffs
contend that a retroactive increase in compensatory damages awards is warranted because higher
damage awards have been granted for similarly situated military personnel injured in the same
terrorist attack with disability ratings “identical” to those of plaintiffs in the instant action. Id. at
2. Finally, plaintiffs contend that prejudgment interest should be awarded because this Court
recently held that an award of prejudgment interest was appropriate in a case similar to Akins.
Id. (citing Christie, 2020 U.S. Dist. LEXIS 116378 at *62–63). For the following reasons,
plaintiffs are neither entitled to relief under Rule 60(b)(5) nor under Rule 60(b)(6), and thus the
motion for relief from judgment is denied.
A. Plaintiffs Are Not Entitled to Relief under Rule 60(b)(5)
Rule 60(b)(5) allows a court to amend “any judgment that has prospective effect.” 11
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2863 (3d
ed. 2021). A judgment is “prospective” when it is either “executory” or involves “the
supervision of changing conduct or conditions.” Twelve John Does, 841 F.2d at 1139. The
consensus among courts of appeal, including the D.C. Circuit, is that a claim for money damages
is not “prospective” for the purposes of Rule 60(b)(5). Id. at 1138; see also Shammas v. Lee, 187
F. Supp. 3d 659 (E.D. Va. 2016), aff’d without opinion, 683 Fed. App’x. 195 (4th Cir. 2017);
Marshall v. Bd. of Ed., Bergenfield, N.J., 575 F.2d 417, 425 (3d Cir. 1978) (collecting cases
holding that Rule 60(b)(5) does not apply to judgments for money damages). Of course,
11
“[v]irtually every court order causes at least some reverberations into the future,” including a
money judgment “most obviously until it is satisfied.” Twelve John Does, 841 F.2d at 1138.
Nevertheless, merely because “a court’s action has continuing consequences . . . does not
necessarily mean that it has ‘prospective application’ for the purposes of Rule 60(b)(5).” Id.Reviewing two Supreme Court decisions from which the “prospective application portion of
Rule 60(b) was derived,” id. at 1139 (citing United States v. Swift & Co., 286 U.S. 106 (1932),
and State of Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856)),
the D.C. Circuit concluded that an injunctive order did not implicate prospective application,
citing as the key characteristics disqualifying prospective relief that the order (1) “did not
compel” defendant “to perform[] any future act,” and (2) did not “require the court to supervise
any continuing interaction” between defendant and the other parties to the case, id.Plaintiffs’ money damages judgment in Akins does not satisfy the “prospective effect”
requirement warranting relief under Rule 60(b)(5). The order directing Iran and the IRGC to pay
plaintiffs’ damages neither compels performance of a future act for the purposes of Rule 60(b)(5)
nor requires ongoing court supervision. Plaintiffs implicitly acknowledge this fact and therefore
turn to another source of relief for payment of the money judgement, asserting that Congress’
2019 extension of the USVSST program through 2039 creates a “‘prospective’ element to
application of the judgment issued” in Akins. Pls.’ Mot. at 4. This alternative source of relief
still does not satisfy the requirements of Rule 60(b)(5). The USVSST program is administered
by a special master appointed by the Attorney General and thus does not require “the court to
supervise any continuing interaction” between the parties. Twelve John Does, 841 F.2d at 1139(emphasis added); see ELSEA, supra, at 1. 5 Given that the judgment for damages here was based
5
Plaintiffs’ original request for appointment of a special master to “hear evidence” and “determine
damages,” Pls.’ Default Mem. at 15–16, also does not make any of the relief granted prospective in nature both
12
purely on past conduct and did not involve “supervision of changing conduct or conditions” or
any “executory” elements, Twelve John Does, 841 F.2d at 1139, relief under Rule 60(b)(5) is not
available to plaintiffs.
B. Plaintiffs Are Not Entitled to Partial Relief Under Rule 60(b)(6)
Plaintiffs support their requested relief under Rule 60(b)(6) on grounds that they “seek
nothing more than equitable treatment,” as they suffered “substantially identical injuries in the
same terrorist attack” as plaintiffs in the subsequently decided cases of Aceto, Schooley, and
Christie—in which plaintiffs in only one case (Christie) were awarded prejudgment interest and
punitive damages, and plaintiffs in all three cases were awarded compensatory damages
computed largely in reliance on VA disability ratings using the Heiser framework. Pls.’ Mot. at
5. In plaintiffs’ view, they “should not be treated differently” in terms of punitive damages,
prejudgment interest and compensatory damages “merely because of the sequence of their
cases.” Id. While plaintiffs’ desire for relief from judgment in order to increase their damages
awards to align more closely in some respects with the awards granted to plaintiffs in other cases
is understandable, they fail to make an adequate showing to disturb a final judgment under Rule
60(b)(6).
“Rule 60(b)(6) . . . grants federal courts broad authority to relieve a party from a final
judgment ‘upon such terms as are just,’ provided that the motion is made within a reasonable
time and is not premised on one of the grounds for relief enumerated in clauses (b)(1) through
(b)(5),” Salazar, 633 F.3d at 1116 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 863 (1988)), which grounds include “excusable neglect, newly discovered evidence,
and fraud,” Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir. 2007). The Supreme Court has read
because this request was denied and the request envisioned no prospective, post-judgment role for the special
master.
13
Rule 60(b)(6) to require a showing of “extraordinary circumstances” to warrant relief. Liljeberg,
486 U.S. at 863–64, 863 n.11. “In determining whether extraordinary circumstances are present,
a court may consider a wide range of factors . . . includ[ing], in an appropriate case, ‘the risk of
injustice to the parties’ and ‘the risk of undermining the public’s confidence in the judicial
process.’” Buck v. Davis, 137 S. Ct. 759, 778 (2017) (quoting Liljeberg, 486 U.S. at 863–64).
Notwithstanding the apparent flexibility of these considerations, the “extraordinary
circumstances” requirement creates a “very high bar” plaintiffs must overcome to obtain relief
under Rule 60(b)(6). Kramer, 481 F.3d at 792. Indeed, “[a] more compelling showing of
inequity or hardship is necessary to warrant relief under subsection (6) than under subsection (5)
. . . .” Twelve John Does v. District of Columbia, 841 F.2d 1133, 1140 (D.C. Cir. 1988). As the
D.C. Circuit has “emphasized[,] Rule 60(b)(6) ‘should be only sparingly used.’” Salazar, 633
F.3d at 1120 (quoting Kramer, 481 F.3d at 792 (quoting Good Luck Nursing Home, 636 F.2d at
577)).
As particularly relevant here, Rule 60(b)(6) “may [also] not ‘be employed simply to
rescue a litigant from strategic choices that later turn out to be improvident.’” Kramer, 481 F.3d
788, 791 (D.C. Cir. 2007) (quoting Good Luck Nursing Home, 636 F.2d at 577). Put another
way, “Rule 60(b)(6) relief is not a ‘substitute for appeal.’” Salazar, 633 F.3d at 1121 (quoting
Polites v. United States, 364 U.S. 426, 432 (1960)). In fact, “a party who has not pursued an
appeal may obtain relief under Rule 60(b)(6) only if there are . . . ‘circumstances . . . so
extraordinary” that the “circumstances . . . essentially made the decision not to appeal an
involuntary one.” Id. (quoting Twelve John Does, 841 F.2d at 1141). To preserve the finality of
judgments and ensure the regular procedural order of appellate review, sanctioning relief from a
final judgment under Rule 60 after a failure to appeal is permitted only in very extreme
14
circumstances, such as “when a litigant suffered from a disabling illness, where participation in
the litigation would cause greater disability, . . . where illness had depleted the litigant’s financial
resources,” id. (citing Randall v. Merrill Lynch, 820 F.2d 1317, 1321 (D.C. Cir. 1987)), or when
“an attorney ‘was grossly negligent,’” Salazar, 633 F.3d at 1121 (quoting L.P. Steuart, Inc. v.
Matthew, 329 F.2d 234, 235–36 (D.C. Cir. 1964)).
Set against this exacting standard, plaintiffs are not able to show that “extraordinary
circumstances,” as required by Rule 60(b)(6), have arisen since 2018 that prevented plaintiffs
from seeking an appeal of the relief granted or warrant nullifying the Court’s prior decision
regarding plaintiffs’ original request for punitive damages, prejudgment interest, and the amount
of the compensatory damages awards.
1. Punitive Damages
This Court denied plaintiffs’ request for at least $500 million in punitive damages as
barred by controlling precedent at the time that held “the FSIA terrorism exception [did] not
retroactively authorize the imposition of punitive damages against a sovereign for conduct
occurring before the passage of § 1605A.” Akins, 332 F. Supp. 3d at 45 (quoting Owens, 864
F.3d at 812). In 2020, the Court’s decision Opati invalidated the D.C. Circuit’s Owens holding
and authorized punitive damages under § 1605A for conduct that occurred prior to the 2008
amendment. Opati, 140 S. Ct. at 1609. Standing alone, the Supreme Court’s conclusion in
Opati—that plaintiffs suing under FSIA § 1605A(c) are permitted to seek punitive damages for
terrorist attacks that occurred before the statute was enacted in 2008, id. at 1608—does not
constitute an “extraordinary circumstance” warranting relief under Rule 60(b)(6). 6
6
The Rule 60(b)(6) requirement that the motion for relief from judgment be made within a “reasonable
time” is met here. This Circuit has “rejected ‘an unduly strict’ interpretation of the ‘reasonable time requirement,’”
Salazar, 633 F.3d at 1117–18 (citing Associated Builders & Contractors v. Mich. Dep’t of Labor and Economic
Growth, 543 F.3d 275, 279 (6th Cir. 2008)), and found an “abuse of discretion to rule that a Rule 60(b)(6) motion is
15
The “extraordinary circumstances” required to trigger relief from judgment under Rule
60(b)(6) are not present “when there has been an intervening change in case law.” Kramer, 481
F.3d at 792 (citing Gonzalez v. Crosby, 545 U.S. 524, 536–538 (2005) and Agostini v. Felton,
521 U.S. 203, 239 (1997)); see Gonzalez, 545 U.S. at 536–37 (concluding Supreme Court’s
changed interpretation of statute of limitations provided in Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), which change occurred after petitioner’s case was no longer
pending, was not so extraordinary as to warrant relief under Rule 60(b)(6)); see also Acree v.
Republic of Iraq, 2009 U.S. App. LEXIS 3281 (D.C. Cir. Feb. 17, 2009) (per curiam) (granting
motion for summary affirmance by holding, in part, that appellants failed to show an
“intervening change in the law is an extraordinary circumstance warranting relief under Rule
60(b)(6)”). 7
Binding precedent in this Circuit thus directs that plaintiffs cannot obtain relief for their
punitive damages judgment under Rule 60(b)(6) because the change in law under Opati is not an
extraordinary circumstance. While Rule 60(b)(6) relief has been granted when a change in
decisional law is accompanied by other factors, the mere fact that the Supreme Court “arrived at
a different interpretation” after plaintiffs’ original judgment in Akins was rendered is “hardly
extraordinary.” Gonazalez, 545 U.S. at 536; see id. at 536–37 (finding that change in law
not filed within a reasonable time without finding that the movant’s delay has prejudiced the non-moving party” in a
“complex and long-running institutional reform case,” United States v. Philip Morris USA Inc., 840 F.3d 844, 850
(D.C. Cir. 2016) (quoting Salazar, 633 F.3d at 1119). Not only did plaintiffs filed their motion only eight months
after binding D.C. Circuit precedent was reversed in Opati on May 18, 2020, Opati, 140 S. Ct. at 1601; Pls.’ Mot. at
1, but also, given defendants’ non-appearance in this lawsuit, any delay has resulted in no prejudice.
7
The Supreme Court has suggested that “[a] change in the interpretation of a substantive statute may have
consequences for cases that have already reached final judgment,” Gonzalez, 545 U.S. at 536 n.9; see also
Crutsinger v. Davis, 140 S. Ct. 2, 3 (2019) (Sotomayor, J., concurring in denial of certiorari) (“[I]n an appropriate
case, a change in decisional law, alone, may supply an extraordinary circumstance justifying Rule 60(b)(6) relief,”
citing exclusively habeas cases), but this possibility has only been raised “in the criminal context” where habeas
relief is at issue, Gonzalez, 545 U.S. at 536 n.9 (citing two habeas cases, Bousley v. United States, 523 U.S. 614(1998), and Fiore v. White, 531 U.S. 225 (2001)); Crutsinger, 140 S. Ct. at 3. The possible exception signaled in
recent Supreme Court dicta thus appears cabined to the habeas context.
16
regarding the tolling of the habeas limitations period did not constitute an “extraordinary
circumstance” justifying relief from an earlier judgment based on prior law).
Moreover, plaintiffs’ lack of diligence in pursuing review or appeal of the Akins
judgment makes “the change in the law . . . all the less extraordinary,” id., and confirms the
unavailability of Rule 60(b)(6) relief. As discussed above, “Rule 60(b)(6) relief is not a
‘substitute for appeal,’” Salazar, 633 F.3d at 1122 (quoting Polites, 364 U.S. at 432), and a party
who has not pursued an appeal must demonstrate “‘circumstances . . . so extraordinary” that the
“circumstances . . . essentially made the decision not to appeal an involuntary one.” Id. at 1121
(quoting Twelve John Does, 841 F.2d at 1141). Plaintiffs here have made no argument that
extraordinary circumstances prevented them from seeking review. To the contrary, plaintiffs
make no representation that they considered appeal at all, much less that extreme circumstances
prevented an appeal. See Salazar, 633 F.3d at 1121 (collecting cases where Rule 60(b)(6) relief
has been granted when, inter alia, “a litigant suffered from a disabling illness,” or “an attorney
was ‘grossly negligent’” (citations omitted)). The Opati plaintiffs, who, like plaintiffs, were
denied punitive damages, pursued an appeal to the Supreme Court to obtain the favorable ruling
on which plaintiffs now want to rely, but plaintiffs here were equally capable of appealing this
Court’s judgment in 2018. Plaintiffs may not now disturb the finality of their earlier judgment to
take advantage of new, more supportive and binding precedent when their decision not to appeal
was “voluntary, deliberate, free, [and] untrammeled.” Ackermann v. United States, 340 U.S.
193, 200 (1950); see also Summer v. Howard Univ., 374 F.3d 1188, 1193 (D.C. Cir. 2004)
(“Under Rule 60(b), a court must balance the interest in justice with the interest in protecting the
finality of judgments.” (citations omitted)).
17
Plaintiffs contend that “equitable considerations require application” of the rule
“allow[ing] punitive damages” because the rule has been adopted by “the Supreme Court and
this [C]ourt.” Pls.’ Mot. at 11. While acknowledging that “some case law hold[s] that
intervening changes in law do not ordinarily rise to the level that would justify application of
Rule 60(b),” id. at 4 (citing Kapar v. Islamic Republic of Iran, 105 F. Supp. 3d 99, 104–05
(D.D.C. 2015)), plaintiffs urge that “their argument for exercise of this Court’s equitable powers
is stronger here” than in cases like Kapar, which hold “intervening changes in law do not
ordinarily rise to the level that would justify application of Rule 60(b),” because plaintiffs in this
action “suffered substantially identical injuries in the same terrorist attack as their brethren in . . .
Christie,” in which punitive damages were ultimately granted following appeal, while plaintiffs
here “were denied punitive damages,” id. at 4–5. In plaintiffs’ view, this comparative procedural
history entitles them to renew their request for punitive damages now because they “should not
be treated differently merely because of the sequence of their cases.” Id. at 5.
Plaintiffs’ argument is unpersuasive for at least two reasons. First, courts may only
exercise their equitable powers under Rule 60(b)(6) upon a showing of extraordinary
circumstances, which showing is wholly lacking here. Gonzalez, 545 U.S. at 535 (“[O]ur cases
have required a movant seeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances’
justifying the reopening of a final judgment (citations omitted)); Liljeberg, 486 U.S. at 863 n.11
(“‘extraordinary circumstances’ are required to bring the motion within the ‘other reason’
language” of Rule 60(b)(6)); WRIGHT & MILLER, supra, § 2857 (“[Rule 60(b)(6)] requires[s] a
very special showing . . . of exceptional or extraordinary circumstances . . . .”). Plaintiffs’ new
inequity claims do not overcome the absence of the kind of extraordinary circumstances required
18
by Rule 60(b)(6)—namely the kind of circumstances that bear on extreme injustice or
functionally prevented plaintiffs from in pursuing relief.
Second, plaintiffs’ passing attempt to distinguish Kapar is unsuccessful since that case
plainly precludes a finding in plaintiffs’ favor. In Kapar, the Court held that an intervening
change in law did not warrant Rule 60(b)(6) relief to a victim of foreign state-sponsored
terrorism, rejecting plaintiff’s argument that such relief from judgment was warranted due to the
ten-year delay in payment by defendants and the unavailability of relief under the statutory
scheme and binding precedent. Kapar, 105 F. Supp. 3d at 107-08. In short, the Kapar court
determined that inequities created by routine circumstances and a change in the governing law
were not extraordinary circumstances. The same determination applies here, where plaintiffs’
bid for relief from denial of their punitive damages request relies solely on the change in law
under Opati and the fact that plaintiffs in Christie were awarded punitive damages in accordance
with Supreme Court precedent at the time—two decidedly non-extraordinary circumstances.
In order to maintain “the delicate balance between the sanctity of final judgments . . . and
the incessant command of the court’s conscience that judge be done in light of all the facts,” the
circumstances here require that the earlier determination regarding punitive damages remain
undisturbed. Twelve John Does, 841 F.2d at 1138.
2. Compensatory Damages and Prejudgment Interest
Plaintiffs additionally cite higher compensatory damages awards in Schooley, Aceto, and
Christie and the award of prejudgment interest to plaintiffs in Christie to argue that the
compensatory damages awards of 22 plaintiffs should be reassessed and that prejudgment
interest should be awarded to all plaintiffs. The differences between the determinations in
Schooley, Aceto and Christie and the determination in Akins, however, do not overcome the
demanding standards imposed by Rule 60(b)(6) and so do not warrant relief from judgment.
19
As to plaintiffs’ bid for increased compensatory damages, fifteen service-member
plaintiffs in Akins were awarded compensatory damages, see Akins, 332 F. Supp. 3d at 47, and
fourteen of those plaintiffs now seek to have their awards recalculated based on the Schooley
award rubric, Pls.’ Mot. at 6–10; see also Errata to Motion for Relief Under Rule 60(b) and
Mem. in Supp. (“Pls.’ First Errata”) at 1–2, ECF No. 43 (clarifying service-member plaintiff
Sasser’s VA disability rating); Errata to Motion for Relief Under Rule 60(b) and Mem. in Supp.
(“Pls.’ Second Errata”) at 1–2, ECF No. 44 (clarifying service-member plaintiff Sills’ VA
disability rating). Of the fourteen service-member plaintiffs seeking recalculation, eight—
Akins, Anthony, Gaydos, Leinenbach, Sasser, Sills, Winter, and Ziegler—provided their VA
disability ratings in support of the motion for default judgment, while six—Hurst, Lawrence,
MacKenzie, Remar, Spicer and Wade—relied solely on descriptions of their injuries. See Akins,
332 F. Supp. 3d at 13–15, 17–25, 25–29. 8 Plaintiffs argue that these fourteen “Akins claimants
should have upward revisions in their awards,” Pls.’ Mot. at 6, and that their eight “family
member[ plaintiffs] whose [solatium] awards were limited by the desire to keep them
proportional to [the] more limited award[s]” should be “entitled to the full ‘usual’ awards”
granted in Schooley, Aceto, and Christie, id. at 6–7, in light of the Court’s reliance on the
“objective” VA disability rating metric in Schooley, Aceto, and Christie. Plaintiffs make this
argument because service-member plaintiffs in Schooley, Aceto and Christie were categorically
awarded $7,000,000 each for VA disability ratings between 70% and 100%, $6,000,000 each for
VA disability ratings between 40% and 60%, and $5,000,000 for VA disability ratings between
8
Plaintiffs posit that service-member plaintiff Spicer “had and still has a service-related disability rating of
50 percent, which would qualify for him for an upward departure to $6 million in compensatory damages,” Pls.’
Mot. at 7, but neither the evidence provided in Akins nor the evidence provided in support of the instant motion
demonstrate that Spicer had a VA disability rating at the time Akins was decided, see Pls.’ Damages Mot., Attach. 2,
Decl. of Matthew G. Spicer (“Matthew Spicer Decl.”) (Jun. 25, 2018), ECF No. 25-2 at 58; Pls.’ Mot., Ex. C, Letter
from Cheryl J. Rawls, Assistant Deputy Under Sec’y for Field Operations, Dep’t of Veterans Affairs to Spicer (Jul.
28, 2020), ECF No. 42-1 at 8.
20
0% and 30%, id. at 6; Schooley, 2019 U.S. Dist. LEXIS 108011 at *303; Aceto, 2020 U.S. Dist.
LEXIS 22084 at *58; Christie, 2020 U.S. Dist. LEXIS 116378 at *74. By contrast, in Akins,
service-member plaintiffs were assessed on the “‘uncontroverted factual allegations’ in [their]
affidavits,” Akins, 332 F. Supp. 3d at 40 (quoting Roth v. Islamic Republic of Iran, 78 F. Supp.
3d 379, 386 (D.D.C. 2015)), without much reliance on VA disability ratings to help differentiate
the significance of the injuries among plaintiffs or for particular plaintiffs—and plaintiffs made
no argument to do so or to highlight differences in VA disability ratings. This contributed to
service-member plaintiffs with disability ratings between 40% and 100% being awarded
$5,000,000 each across the board, id. at 47, and service-member plaintiffs with no VA disability
ratings being awarded anywhere from $1,500,000 to $5,000,000, id., as opposed to the consistent
$5,000,000 baseline applied in Schooley. 9
The use of the VA disability rating rubric in Schooley and the adoption of that rubric in
subsequent cases Aceto and Christie are not extraordinary circumstances but instead reflect a
changed approach informed by the record before the Court in each case. Relying on plaintiffs’
request that the Court consider “factors [such] as the severity of the pain immediately following
the injury, the length of hospitalization, and the extent of the impairment that [would] remain
with the victim for the rest of [their] life,” Pls.’ Mem. in Support of Entry of Final Judgment
Awarding Damages (“Pls’ Final Judgment Mem.”) at 3, ECF No. 25-1, Akins fashioned a rubric
that reflected plaintiffs’ own proposed rubric for determining damages, such that awards of
$5,000,000 were granted to those with “severe instances of physical and psychological pain,”
Akins, 332 F. Supp. 3d at 40 (quoting Kaplan, 213 F. Supp. 3d at 35–36 (quoting Valore, 700 F.
9
In one exception, service-member plaintiff Winter had a 70% VA disability rating but was awarded only
$2,500,000 because he suffered “severe emotional injury accompanied by relatively minor physical injuries,” Akins,
332 F. Supp. 3d at 41 (quoting Khaliq, 33 F. Supp. 3d at 33).
21
Supp. 2d at 84)), $2,500,000 to those with “severe emotional injury accompanied by relatively
minor physical injuries,” id. at 41 (quoting Khaliq, 33 F. Supp. 3d at 33), and of $1,500,000 to
those with “severe emotional injury” alone, id. at 41 (citing Kaplan, 213 F. Supp. 3d at 36
(quoting Harrison v. Republic of Sudan, 882 F. Supp. 2d 23, 49 (D.D.C. 2012))). Then, using
plaintiffs’ “conten[tions] in their ‘uncontroverted . . . affidavits’ that they experienced significant
physical and psychological injuries as a result of the attack,” Akins, 332 F. Supp. 3d at 40
(internal citation omitted), Akins applied this rubric to each of the fifteen service-member
plaintiffs injured in the terrorist attack to determine awards equitable among the Akins plaintiffs,
id. at 41. In Schooley, on the other hand, facing 101 service-member plaintiffs with unique
affidavits extensively describing the harrowing and often gruesome experiences the service-
member plaintiffs endured in the aftermath of the Khobar Towers attack, took a different
approach in an effort to “ensure that individuals with similar injuries receive similar awards.”
Schooley, 2019 U.S. Dist. LEXIS 108011 at *302 (quoting Khaliq, 33 F. Supp. 3d at 33).
Schooley applied the Akins rubric to fourteen service-member plaintiffs without VA disability
ratings, id. at *305–06, but, recognizing that “awarding damages for pain and suffering is
inherently difficult in any context” and that “mental and physical injuries [are] equally capable of
causing disability, and therefore equally deserving of compensatory damages,” id. at *302, relied
on Schooley plaintiffs’ submissions of their VA disability ratings—“a specialized agency’s
official determination regarding the extent of disabling injury sustained by service members in
connection with military service,” id. (citing Stacey D. Benfield Decl., Attach., Letter from VA
Regional Office Director to Stacey D. Benfield (Feb. 22, 2018), Schooley v. Islamic Republic of
Iran, Civil Action No. 17-1376 (BAH) (D.D.C. Dec. 28, 2018), ECF No. 35 at 21 and Mark E.
Broda Decl., Attach., Letter from E. Lima, Veterans Service Center Manager, VA, to Mark E.
22
Broda (Dec. 6, 2021), Schooley v. Islamic Republic of Iran, Civil Action No. 17-1376 (BAH)
(D.D.C. Dec. 28, 2018), ECF No. 37 at 38)—to create the VA disability rating rubric.
Highlighting and relying heavily on VA disability ratings defers to the standardized metric
assigned by an agency with the expertise and responsibility to evaluate and distinguish between
service-member injuries, and thus VA disability ratings were used to calculate compensatory
damages for the remaining 87 Schooley service-member plaintiffs. Indeed, Schooley concluded
that relying on the VA disability rating is “preferable” to the Akins approach because the rating
“includes both mental and physical injuries in a single number [and] facilitates an approach to
awarding damages that is generally agnostic to the mental or physical nature of the injury and
further provides a relatively objective measure of comparative injuries.” Id.
“[I]t is hardly extraordinary that subsequently, after [plaintiffs’] case was no longer
pending, this Court arrived at a different” method for determining damages for survivors of
terrorist attacks, and so extraordinary circumstances are not present here. Gonzalez, 545 U.S. at
536. Schooley used the extant record before the Court to identify and apply a uniform approach
to determining damages for a large group of service members with similarly devastating physical
and psychological injuries. This same method may be (and has been) employed to assess
damages in other FSIA terrorist attack cases where plaintiffs provide their VA disability ratings
in support of a compensatory damages award. While plaintiffs are correct that if the Schooley
rubric had been used to assess the damages of Akins service-member plaintiffs in the first
instance, these plaintiffs and their family-member plaintiffs may have been awarded higher
compensatory damages and solatium awards, respectively. The adoption of this rubric in three
cases, Schooley, Aceto, and Christie, decided after Akins falls well short, however, of creating an
extraordinary circumstance warranting the disruption of Akins’ final judgment under Rule
23
60(b)(6). Plaintiffs’ argument that the development of the Schooley rubric necessitates Rule
60(b)(6) relief is additionally undermined by the fact that this Court applied the Heiser
framework plaintiffs themselves requested in their June 2018 motion for default judgment, which
request made no mention of VA disability ratings whatsoever. Pls’ Final Judgment Mem. at 3.
Moreover, since “a litigant’s diligence in pursuing review of a decision, either through
appeal or through Rule 60(b)(6) relief, is relevant in assessing whether extraordinary
circumstances are present,” Salazar, 633 F.3d at 1118 (citing Gonzalez, 545 U.S. at 537),
plaintiffs’ decision not to appeal, paired with plaintiffs’ delay in seeking Rule 60(b)(6) review,
further weakens plaintiffs’ bid for relief. Plaintiffs’ failure to appeal, alone, bars Rule 60(b)(6)
relief because that relief would act as a “substitute for [an] appeal” that plaintiffs could have
pursued but chose not to. Salazar, 633 F.3d at 1122 (quoting Polites, 364 U.S. at 432).
Plaintiffs make no effort to show that their decision to forgo an appeal was informed by
extenuating circumstances that functionally prevented appeal. See, e.g., Klapprott v. United
States, 335 U.S. 601, 613–14 (1949) (determining petitioner’s failure to appeal was not
neglectful and, thus, not a bar to an extraordinary circumstances finding, where petitioner could
not defend himself in denaturalization proceedings when he was simultaneously held in jail, did
not have funds to hire representation for the denaturalization proceedings, became ill while
incarcerated, and was defending himself against “the gravest criminal charges”). Indeed,
plaintiffs’ decision not to appeal here appears to have been a “voluntary, deliberate, free, [and]
untrammeled choice” that cannot be cured by Rule 60(b)(6) relief. Ackermann, 340 U.S. at 200.
Plaintiffs’ failure to demonstrate extraordinary circumstances is compounded by
plaintiffs’ delay in attempting to obtain Rule 60(b)(6) review. Schooley was issued on June 27,
2019, Aceto was issued on February 7, 2020, and Christie was issued on July 2, 2020. Instead of
24
seeking review in 2019, after Schooley was issued, or in 2020, after Christie was issued,
plaintiffs filed the instant motion on January 8, 2021, nearly two years after this Court first began
assessing compensatory damages for plaintiffs injured by the Khobar Towers attack using a
rubric guided heavily by VA disability ratings. See Pls.’ Mot. Absent any explanation about
plaintiffs’ failure to appeal or their delay in seeking review, Rule 60(b)(6) relief is not
warranted. 10
Next, as to plaintiffs’ renewed request for prejudgment interest, Akins originally held that
the Heiser framework awards “represent the appropriate level of compensation, regardless of the
timing of the attack,” Akins, 332 F. Supp. 3d at 46 (quoting Oveissi, 768 F. Supp. 2d at 30 n.12),
and that plaintiffs failed to provide “any reason why awards under [the Heiser] framework are
insufficient to provide ‘complete compensation,’” id. (quoting West Virginia, 479 U.S. at 310).
Plaintiffs now argue that the grant in Christie of prejudgment interest “supersed[es] the [prior]
holding [in Akins]” and demonstrates that “prejudgment interest is appropriate in the
circumstances of this case.” Pls.’ Mot. at 2–3 (citing Christie, 2020 U.S. Dist. LEXIS 116378 at
*62–63). According to plaintiffs, the same “‘equitable principles’ relied on by this Court in
Christie require award of prejudgment interest calculated to at least the time of the original
judgment entered in this case.” Id. at 10.
For many of the same reasons that plaintiffs are not entitled to relief from their punitive
damages awards, plaintiffs are likewise not entitled to Rule 60(b)(6) relief from the prior
10
Plaintiffs also argue that the six service-member plaintiffs who did not provide a VA disability rating in
support of their original motion for default judgment should receive “upward revisions in their awards.” Pls.’ Mot.
at 6. “[A] party that has stipulated to certain facts or has not presented known facts helpful to its cause when it had
the chance cannot ordinarily avail itself on [R]ule 60(b) after an adverse judgment has been handed down.” Good
Luck, 636 F.2d at 577 (citations omitted). The VA disability ratings for these service-member plaintiffs, while
perhaps not strictly “known” at the time Akins was decided, were discoverable, were not presented to this Court, and
their presentation now, nearly three years later, implicates more than a “slight[] impinge[ment]” on the “interest that
litigation must someday end” and does not show an extraordinary circumstance that warrants a disruption of the
“sanctity of final judgments” under Rule 60(b)(6). Id.25
judgment denying prejudgment interest. First, as discussed above, the “extraordinary
circumstances” required by Rule 60(b)(6) “are not present . . . when there has been an
intervening change in case law,” Kramer, 481 F.3d at 792 (citing Gonzalez, 545 U.S. 536–38).
Second, plaintiffs’ lack of diligence in pursuing review or appeal of the Akins judgment further
undermines plaintiffs’ argument that “equitable principles” require the Court to undo a final
judgment. Gonzalez, 545 U.S. at 536.
In addition, Christie’s determination to award prejudgment interest to the plaintiffs in that
case does not reflect the current consensus that the Heiser framework awards “represent the
appropriate level of compensation, regardless of the timing of the attack.” Akins, 332 F. Supp.
3d at 46 (quoting Oveissi, 768 F. Supp. 2d at 30 n.12). Of the four FSIA cases arising from the
Khobar Towers attack that have been resolved by this Court, Christie is the only case that
awarded prejudgment interest. The Christie plaintiffs represented that “[c]ourts in this circuit
have awarded prejudgment interest in cases where plaintiffs were delayed in recovering
compensation for their injuries, specifically, where such ‘injuries were the result of targeted
attacks perpetrated by foreign defendants,’” Pls.’ Mot. for Default J. as to Liab. and Damages
and Entry of Final J. (“Christie Pls.’ Mot.”) at 26, Christie v. Islamic Republic of Iran, No. 19-
cv-1289-BAH (D.D.C. Jan. 29, 2020), ECF No. 35-1 (quoting Pugh v. Socialist People’s Libyan
Arab Jamahiriya, 530 F. Supp. 2d 216, 263 (D.D.C. 2008)), and further represented that the
conclusion had been generally adopted that “prejudgment interest is appropriate in FSIA cases
because ‘[d]enying prejudgment interest on these damages would allow defendants to profit from
the use of the money [in the time between the attacks and the litigation,]’” id. at 26–27 (quoting
Estate of Doe, 943 F. Supp. 2d at 184 n.1). Closer examination of these representations reveals
that a single Judge on this Court is responsible for nearly every recent FSIA prejudgment interest
26
award. 11 By contrast, the majority of Judges confronted with this issue have concluded—as this
Court did in Akins—that “pain and suffering and solatium damages are both designed to be fully
compensatory.” Barry v. Islamic Republic of Iran, 437 F. Supp. 3d 15, 60 (D.D.C. 2020)
(Contreras, J.) (quoting Wyatt v. Syrian Arab Republic, 908 F. Supp. 2d 216, 232 (D.D.C.
2012)). 12 Thus, the overarching tide of persuasive precedent on this Court plainly weighs against
awarding prejudgment interest, and is even less warranted now that punitive damages are
permissible in § 1605A cases, as prejudgment interest “does not apply to punitive damages
because ‘prejudgment interest is an element of complete compensation’ and punitive damages
are non-compensatory.” Thuneibat v. Syrian Arab Republic, 167 F. Supp. 3d 22, 55 (D.D.C.
2016) (quoting Pugh, 530 F. Supp. 2d at 264)). Thus, plaintiffs fail to show that the reasoning
underlying their bid for prejudgment interest overcomes the “sanctity of final judgments” and
must be dismissed. Twelve John Does, 841 F.2d at 1138. 13
11
See Ewan v. Islamic Republic of Iran, 466 F. Supp. 3d 236, 250 (D.D.C. 2020) (Bates, J.); Kinyua v.
Republic of Sudan, 466 F. Supp. 3d 1, 12 (D.D.C. 2020) (Bates, J.); Fritz v. Islamic Republic of Iran, 324 F. Supp.
3d 54, 64 (D.D.C. 2018) (Moss, J.); Amduso v. Republic of Sudan, 61 F. Supp. 3d 42, 53 (D.D.C. 2014) (Bates, J.);
Onsongo v. Republic of Sudan, 60 F. Supp. 3d 144, 153 (D.D.C. 2014) (Bates, J.); Wamai v. Republic of Sudan, 60
F. Supp. 3d 84, 98 (D.D.C. 2014) (Bates, J.); Opati v. Republic of Sudan, 60 F. Supp. 3d 68, 82 (D.D.C. 2014)
(Bates, J.); Mwila v. Islamic Republic of Iran, 33 F. Supp. 3d 36, 46 (D.D.C. 2014) (Bates, J.); Khaliq, 33 F. Supp.
3d at 34–35 (Bates, J.); Estate of Doe, 943 F. Supp. 2d at 184, 184 n.1 (Bates, J.); Belkin v. Islamic Republic of Iran,
667 F. Supp. 2d 8, 24 (D.D.C. 2009) (Friedman, J.).
12
See also Doe v. Democratic People’s Republic of Korea Ministry of Foreign Affairs Jungsong-Dong, No.
18-cv-252 (DLF), 2021 U.S. Dist. LEXIS 34111 at *26 (D.D.C. Feb. 24, 2021) (Friedrich, J.) (denying prejudgment
interest because the award “in today’s dollars fully compensates the crew members and their estates for their time
spent in captivity”); Bathiard v. Islamic Republic of Iran, Case Nos. 16-cv-1549 (CRC) & 17-cv-2006 (CRC), 2020
U.S. Dist. LEXIS 72513 at *22–23 (D.D.C. Apr. 24 2020) (Cooper, J.); Cohen v. Islamic Republic of Iran, Civil
Action No. 17-1214 (JEB), 2019 U.S. Dist. LEXIS 115278 at *30–31 (D.D.C. Jul. 11, 2019) (Boasberg, J.); Maupin
v. Syrian Arab Republic, 405 F. Supp. 3d 79, 99 (D.D.C. 2019) (Spec. Master Report), adopted by Maupin v. Syrian
Arab Republic, 405 F. Supp. 3d 75 (D.D.C. 2019) (Kollar-Kotelly, J.); Roth v. Syrian Arab Republic, Civil No. 1:14-
cv-01946-RCL, 2018 U.S. Dist. LEXIS 168244 at *45 (D.D.C. Sept. 28, 2018) (Lamberth, J.); Oveissi, 768 F. Supp.
2d at 30 n.12 (Lamberth, J.).
13
Given that the awards of service-member plaintiffs will not be recalculated, the family-member plaintiffs,
whose awards were calculated in proportion to the damages awards of their service-member plaintiff relatives and
who seek recalculation of their awards here, have no basis upon which to have their damages awards adjusted. See
Pls.’ Mot. at 8–10.
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IV. CONCLUSION
For the foregoing reasons, plaintiffs’ motion for relief under Rule 60(b) denied.
Date: July 16, 2021
__________________________
BERYL A. HOWELL
Chief Judge
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