Fain v. Islamic Republic of Iran ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
EVAN FAIN, et al., )
)
Plaintiffs, )
)
v. ) 10-cv-628 (RCL)
)
ISLAMIC REPUBLIC OF IRAN, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
I. INTRODUCTION
This action arises out of the devastating 1983 bombing of the U.S. Marine barracks in
Beirut, Lebanon. The attack decimated the facility, killed 241 U.S. servicemen and left countless
others wounded, and caused physical and emotional injuries to plaintiff Evan Fain III. Mr.
Fain’s wife and children are also plaintiffs in this suit against defendants Islamic Republic of
Iran (“Iran”) and the Iranian Ministry of Information and Security (“MOIS”). This action is
brought pursuant to the state-sponsored terrorism exception of the Foreign Sovereign Immunities
Act (“FSIA”), 28 U.S.C. §§ 1330, 1602 et seq., which was enacted as part of the National
Defense Authorization Act for Fiscal Year 2008 (“NDAA”). Pub. L. No. 110-181, § 1083, 122
Stat. 3, 338–44 (2008). That provision, codified at 28 U.S.C. § 1605A, provides “a federal right
of action against foreign states.” Simon v. Islamic Republic of Iraq, 529 F.3d 1187, 1190 (D.C.
Cir. 2008). Plaintiffs contend that, by both creating and supporting the terrorist organization
Hezbollah and directing that organization to take ‘spectacular action against the United States
Marines’ stationed in Lebanon, defendants are legally responsible for the severe physical and
emotional toll that the barracks bombing wreaked upon them. For the reasons set forth below,
the Court finds that plaintiffs have provided sufficient proof to support their causes of action, and
determines that defendants are liable under FSIA’s state-sponsored terrorism exception.
II. PROCEDURAL HISTORY
A. Prior Beirut Bombing Litigation
There is a lengthy history of litigation before this Court concerning the 1983 bombing of
the U.S. Marine barracks in Beirut.1 In the seminal case, Peterson v. Islamic Republic of Iran,
dozens of plaintiffs consisting of family members of the 241 deceased servicemen, as well as
several injured survivors of the attack, sued defendants Iran and MOIS, seeking to hold them
liable for the horrific act under the former state-sponsored terrorism exception, which at that time
was codified at 28 U.S.C. § 1605(a)(7). 264 F. Supp. 2d 46, 48 (D.D.C. 2003) (Lamberth, J.).
Over two days in March 2003, the Court conducted a bench trial during which it heard testimony
from lay and expert witnesses and received documentary evidence concerning the horrific attack,
the grave injuries many suffered, defendants’ involvement in the bombing, and their support for
international terrorism more broadly. See generally id. at 48–59 (discussing evidence and
findings of fact). Based on that evidence, the Court found “that it is beyond question that
Hezbollah and its agents received massive material and technical support from the Iranian
government. . . . [and] that it is highly unlikely that this attack could have resulted in such loss of
life without the assistance of regular military forces, such as those of Iran.” Id. at 58. The Court
then determined, as a legal matter, that “MOIS actively participated in the attack” and was
1
See Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46 (D.D.C. 2003) (Lamberth, J.); Valore v. Islamic
Republic of Iran, 478 F. Supp. 2d 101 (D.D.C. 2007) (Lamberth, J.); In re Islamic Republic of Iran Terrorism
Litigation, 659 F. Supp. 2d 31 (D.D.C. 2010) (Lamberth, C.J.); Anderson v. Islamic Republic of Iran, 753 F. Supp.
2d 68 (D.D.C. 2010) (Lamberth, C.J.); Bland v. Islamic Republic of Iran, 2011 WL 6396527 (D.D.C. 2011)
(Lamberth, C.J.); O’Brien v. Islamic Republic of Iran, 2012 WL 1021471 (D.D.C. 2012) (Lamberth, C.J.); Davis v.
Islamic Republic of Iran, 2012 WL 1059700 (D.D.C. 2012) (Lamberth, C.J.).
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“acting as an agent of . . . Iran” when doing so, and thus defendants Iran and MOIS were “jointly
and severally liable to the plaintiffs” for damages. Id. at 61. The Court left the determination of
damages in Peterson to another day following further findings of fact by special masters
appointed to assist the Court. Id. at 65. Subsequent to the opinion in Peterson, several other
cases related to the 1983 attack, including this one, remained pending before this Court.
B. This Action
Plaintiffs here are serviceman Fain, his wife Maria, and their three children. In the
Complaint, plaintiffs allege the same essential facts concerning the 1983 barracks bombing that
were established by sufficient evidence in Peterson, Compl. ¶¶ 6–10. Plaintiffs set forth claims
for assault, battery, intentional infliction of emotional distress, and punitive damages against the
defendants. Id. at ¶¶ 11–19.
Plaintiffs served copies of the relevant papers, along with translations, by diplomatic
channels through the U.S. Department of State, as required by 28 U.S.C. § 1608(a)(4).
According to the diplomatic note, service was effected August 3, 2011. Return of Service/
Affidavit, October 19, 2011 [ECF No. 13]. Under the terms of 28 U.S.C. § 1605A, defendants
had 60 days from that date—until October 2, 2011—to respond. 28 U.S.C. § 1608(d). After
none of the defendants appeared or responded, the Clerk of the Court entered default on
plaintiffs’ behalf. Clerk’s Entry of Default, Oct. 28, 2011 [ECF No. 27]. Plaintiffs then moved
for this Court to take judicial notice of the proceedings in Peterson and for default judgment in
accordance with § 1608(e). Motion for Default Judgment, Oct. 28, 2011 [ECF No. 26]. Based
on that motion, the record, and facts available for judicial notice, the Court makes the following
findings of fact and conclusions of law.
III. FINDINGS OF FACT
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The Clerk of the Court entered defendants’ default on October 28, 2011. However, prior
to entry of final default judgment, the FSIA requires that courts evaluate the evidence before
them to ensure that plaintiffs have established their right to relief “by evidence that is satisfactory
to the court.” 28 U.S.C. § 1608(e). This requirement “imposes a duty on FSIA courts to not
simply accept a complaint’s unsupported allegations as true, and obligates courts to inquire
further before entering judgment against parties in default.” Rimkus v. Islamic Republic of Iran,
750 F. Supp. 2d 163, 171 (D.D.C. 2010) (internal quotations omitted).
In considering whether to enter default judgment, courts in FSIA cases look to various
sources of evidence to satisfy their statutory obligation. Courts may, for example, rely upon
plaintiffs’ “‘uncontroverted factual allegations, which are supported by . . . documentary and
affidavit evidence.’” Valore, 700 F. Supp. 2d at 59 (alteration in original; quoting Int’l Road
Fed’n v. Democratic Republic of the Congo, 131 F. Supp. 2d 248, 252 n.4 (D.D.C. 2001)). In
addition to more traditional forms of evidence—testimony and documentation—plaintiffs in
FSIA cases may also submit evidence in the form of affidavits. Blais v. Islamic Republic of Iran,
459 F. Supp. 2d 40, 53 (D.D.C. 2006) (citing Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d
74, 82 (D.D.C. 2006)). Finally, a FSIA court may “‘take judicial notice of related proceedings
and records in cases before the same court.’” Valore, 700 F. Supp. 2d at 59 (quoting Brewer v.
Islamic Republic of Iran, 664 F. Supp. 2d 43, 50–51 (D.D.C. 2009)). Here, plaintiffs rely on
judicial notice, affidavits, and depositions in support of their motion for default judgment.
A. Judicial Notice of Prior Related Cases
Under the Federal Rules of Evidence, courts are permitted to take judicial notice of facts
“not subject to reasonable dispute” where those facts are either “generally known within the
territorial jurisdiction” or are “capable of accurate and ready determination by resort to sources
4
whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). This rule permits
courts to take judicial notice of court records in related proceedings. 29 Am. Jur. 2d Evidence §
151 (2010); see also Booth v. Fletcher, 101 F.2d 676, 679 n.2 (D.C. Cir. 1938) (“A court may
take judicial notice of, and give effect to, its own records in another but interrelated proceeding .
. . .”); 2 McCormick on Evid. § 332 (6th ed. 2009) (noting that the principle permitting courts to
take judicial notice of current proceedings “is equally applicable to matters of record in the
proceedings in other cases in the same court”). Because of the multiplicity of FSIA-related
litigation, courts in this District have frequently taken judicial notice of earlier, related
proceedings. See, e.g., Murphy, 740 F. Supp. 2d at 58; Valore, 700 F. Supp. 2d at 59–60;
Brewer, 664 F. Supp. 2d at 50–51 (D.D.C. 2009).
A difficult issue arises concerning judicial notice of related proceedings with regard to
courts’ prior factual findings. While such findings in a prior proceeding are “capable of accurate
and ready determination” from judicial records, Fed. R. Evid. 201(b), it cannot be said that these
same findings are “not subject to reasonable dispute.” Id. Specifically, such findings represent
merely a court’s probabilistic determination as to what happened, rather than a first-hand account
of the actual events. As such, they constitute hearsay, and thus are considered inadmissible.
Athridge v. Aetna Cas. & Sur. Co., 474 F. Supp. 2d 102, 110 (D.D.C. 2007) (citing United States
v. Jones, 29 F.3d 1549, 1554 (11th Cir. 1994)).
This Court grappled with these difficulties in Rimkus, where— “mindful that the statutory
obligation found in § 1608(e) was not designed to impose the onerous burden of re-litigating key
facts in related cases arising out of the same terrorist attack,” 750 F. Supp. 2d at 163 (citing
Brewer, 664 F. Supp. 2d at 54)—determined that the proper approach is one “that permits courts
in subsequent related cases to rely upon the evidence presented in earlier litigation . . . without
5
necessitating the formality of having that evidence reproduced.” Id. (citing Murphy, 740 F.
Supp. 2d at 58). Thus, based on judicial notice of the evidence presented in the earlier cases—
here, Peterson—courts may reach their own independent findings of fact.
B. Relevant Findings of Fact
This action arises out of the devastating 1983 bombing of the U.S. Marine barracks in
Beirut, Lebanon—an event that has been at the center of numerous FSIA suits. In support of
their claims, plaintiffs ask this Court to take judicial notice of its previous findings in the
Peterson case, during which the Court held a two-day bench trial on the issue of liability. 264 F.
Supp. 2d at 48–49. Bearing in mind the parameters for judicial notice in FSIA actions set forth
above, the Court takes judicial notice of the evidence presented in Peterson, and renders the
following findings of fact:
Defendants
Defendant Iran “is a foreign state and has been designated a state sponsor of terrorism
pursuant to section 69(j) of the Export Administration Act of 1979, 50 U.S.C. § 2405(j),
continuously since January 19, 1984.” Blais, 459 F. Supp. 2d at 47. Defendant MOIS is the
secret police and intelligence organization of Iran. In Valore, this Court characterized MOIS as a
“division of the state of Iran” that “acted as a conduit for the Islamic Republic of Iran’s provision
of funds to Hezbollah.” 700 F. Supp. 2d at 53, 65.
The Attack on the Marine Barracks
Documentary evidence presented to this Court in Peterson establishes that in late 1982,
the 24th Marine Amphibious Unit of the U.S. Marines—which included 1st Battalion, 8th
Marines—was dispatched as part of an international peacekeeping coalition to the Lebanese
capital of Beirut. Peterson, 264 F. Supp. 2d at 49. The rules of engagement issued to the
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servicemen in this unit clearly stated that they “possessed neither combatant nor police powers.”
Id. Indeed, numerous witnesses at the Peterson trial testified that these servicemen “were more
restricted in their use of force than an ordinary U.S. citizen walking down a street in Washington,
D.C.” Id. at 50. As Colonel Timothy Geraghty, the commander of the U.S. deployment
testified: “The rules—these were geared primarily again with the peacekeeping mission [in
mind] and the sensitivities of killing or maiming someone accidentally.” Id. (alteration in
original). Given the nature of this deployment, the Court finds that the servicemen were non-
combatants operating under peacetime rules of engagement.
During the Peterson trial, the Court heard the videotaped deposition of a Hezbollah
member known by the pseudonym “Mahmoud.” 264 F. Supp. 2d at 54. Mahmoud is a Lebanese
Shi’ite Muslim, and was part of the group that carried out the attack on the Marine barracks in
1983. He provided the following information concerning the planning and execution of the
bombing:
In 1983, high-ranking members of Hezbollah and a member of the Iranian Revolutionary
Guard Corps, acting at the direction of the Iranian Ambassador to Syria, met in Baalbek,
Lebanon. Id. at 55. At this meeting, the individuals “formed a plan to carry out simultaneous
attacks against the American and French barracks in Lebanon.” Id. Subsequent to these
discussions, members of Hezbollah disguised a 19-ton truck to resemble a water delivery truck
that regularly traveled to the Beirut International Airport, near the U.S. Marine barracks, and
rigged the truck so that it could carry an explosive device. Id. at 56. On the morning of October
23, 1983, a group of Hezbollah operatives ambushed the real water delivery truck, and the fake
truck was sent to the barracks, driven by an Iranian member of Hezbollah. Upon reaching the
barracks, the fake truck increased its speed and broke through the wire and sandbag barriers
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surrounding the facility. Once the truck reached the center of the barracks, the bomb it carried
was detonated. Id.The Peterson Court also received substantial testimony concerning the explosion and its
aftermath. Danny A. Defenbaugh, the on-scene FBI forensic explosive investigation, testified as
an expert before the Court and explained that the explosion was, at the time, “the largest non-
nuclear explosion that had ever been detonated on the face of the Earth,” with a force that “was
equal to between 15,000 to 21,000 pounds of TNT.” Id. Steve Russell, the sergeant of the guard
at the time of the attack, stated that the bomb left many victims mangled and in severe pain. Id.
at 58. In all, the attack on the barracks killed 241 U.S. servicemen, and left countless others
severely injured, both physically and emotionally. Peterson, 264 F. Supp. 2d at 58.
Iranian Involvement in the Marine Barracks Bombing
The testimony of Mahmoud establishes that the barracks bombing was undertaken by
members of Hezbollah.2 In Peterson, this Court found that the group Hezbollah “was formed
under the auspices of the government of Iran.” 264 F. Supp. 2d at 51. This determination was
based on the testimony of several expert witnesses in the Peterson trial. First, Dr. Patrick
Clawson, a “widely-renowned expert on Iranian affairs,” testified that Hezbollah was a creature
of the Iranian government: “Hezbollah is largely under Iranian orders. It’s almost entirely
acting at the—under the order of the Iranians.” Id. at 51. Second, Dr. Reuven Paz, “who has
researched Islamist terrorist groups over the last 25 years,” stated that “at that time—even today,
but especially at that time, when Hezbollah was not yet formed as a strong group, it was totally
controlled by Iran and actually served mainly the Iranian interest.” Id. at 52. Finally, Robert
Baer, “a case officer in the Directorate of Operations of the CIA,” explained that, at the time of
2
Hezbollah is synonymous with “Hizbollah,” which is merely a “variant transliteration[] of the same
name.” Oveissi v. Islamic Republic of Iran, 498 F. Supp. 2d 268, 273 n.3 (D.D.C. 2007) rev’d on other grounds,
573 F.3d 835 (D.C. Cir. 2009).
8
the 1983 bombing, Hezbollah was constituted by “a bunch of agents of Iran.” Id. at 52–53 n.10.
Thus, the Iranian government was directly tied to the actions undertaken by the members of
Hezbollah in the attack on the U.S. Marine barracks.
In addition to evidence concerning Iran’s role in creating and supporting Hezbollah,
plaintiffs in Peterson also presented testimony concerning an intercepted message from MOIS to
an Iranian official orderings attacks against U.S. Marines. Admiral James A. Lyons—who at the
time was the Deputy Chief of Naval Operations for Plans, Policy and Operations—“routinely
received intelligence information about American military forces” during the period leading up
to the 1983 bombing. Id. at 54. Admiral Lyons testified about a message from MOIS to the
Iranian ambassador to Syria, directing the Ambassador to contact a terrorist leader and “instruct
him to have his group instigate attacks against the multinational coalition in Lebanon, and ‘to
take a spectacular action against the United States Marines.’” Id. Additional evidence showed
that, following these instructions, this Ambassador to Syria then instructed an Iranian
Revolutionary Guard Corp officer to attend a meeting with Hezbollah operatives, and that the
attack on the Marine barracks was planned at that meeting. Id. at 54–55. Based on this
evidence, the Court finds that both Iran and MOIS played crucial and necessary roles in planning
and ordering the 1983 bombing.
Finally, testimony from explosives experts at the Peterson trial also points to Iranian
involvement in the attack. At trial, experts from both the FBI and ATF “concluded that the
explosive material” in the bomb “was ‘bulk form’ pentaerythritol tetranitrate, or PETN.” Id. at
56. Mr. Defenbaugh, the FBI investigator, then explained that the ‘bulk form’ of PETN, rather
than the manufactured form, “is not generally sold commercially,” and that—at the time of the
attack—bulk form PETN “was manufactured within the borders of Iran.” Id. at 57. And Warren
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Parker, a forty-year veteran explosives expert for the Army and ATF, testified that “[t]hese are
not things that you just go down to the drugstore and buy a pound of . . . . it is a state- or
military-run factory that produces this type of material.” Id. at 57–58. Based on this testimony,
the Court concurs and adopts its finding in Peterson that “Hezbollah and its agents received
massive material and technical support from the Iranian government. . . . [I]t is highly unlikely
that this attack could have resulted in such loss of life without the assistance of regular military
forces, such as those of Iran.” Id. at 58.
Iranian Support for Terrorism
In addition to the direct support of Hezbollah for the purpose of carrying out the horrific
bombing of the U.S. Marine barracks in 1983, the evidence presented at the Peterson trial
demonstrates that Iran has also played a critical role in support for terrorism more generally. At
the Peterson trial, Dr. Clawson estimated that between 1983 and 1988, the Iranian government
annually spent approximately $50 to $150 million financing terrorist organizations in the Near
East. Id. at 51. In funding such operations, Iran uses MOIS to exercise operational control over
groups such as Hezbollah. Id. at 53. And these activities have only intensified and worsened: In
an affidavit filed with this Court in Valore, Dr. Clawson estimates that today the “financial
material support provided by Iran in support of terrorism is in the range of $300 million to $500
million a year.” 700 F. Supp. 2d at 88.
Evan Fain III (and family)
Plaintiff Evan Fain III was sleeping on the third floor of the barracks at the time of the
bombing. Aff. of Evan Fain III, ECF No. 20, at ¶ 4. He suffered serious physical and
psychological injuries, including traumatic brain injury, temporary paralysis from a back injury,
a puncture wound, and later suffered post-traumatic stress disorder. Id. at ¶ 5. At the time of the
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attack, he was married to plaintiff Maria Fain, who suffered extreme emotional distress because
she did not know whether Evan was alive for two days. Id. at ¶ 8; Aff. of Maria Fain, ECF No.
24, at ¶ 6. He also had three children, who are all plaintiffs in this action: Maria Amosa, Evan
Fain IV, and Joseph Edward Fain. Id. at ¶ 9. The children suffered extreme emotional distress
as a result of the attack because they did not know whether their father was alive for two days
after the bombing. Aff. of Evain Fain IV, ECF No. 21, at ¶ 3; Aff. of Joseph Edward Fain, ECF
No. 22, at ¶ 3; Aff. of Maria E. Amosa, ECF No. 23, at ¶ 3; see also Depositions, ECF Nos. 25–
29. The attack permanently impacted their family life and their relationship with their father. Id.
IV. CONCLUSIONS OF LAW
Based on these findings of fact, the Court reaches the following conclusions of law:
A. Jurisdiction
Subject to certain enumerated exceptions—including the state-sponsored terrorism
exception—the FSIA simultaneously provides immunity to foreign states from suit and denies all
U.S. federal and state courts jurisdiction over such actions. 28 U.S.C. § 1604. Under certain
conditions, however, courts obtain original jurisdiction for suits against foreign states, and those
states’ general immunities are waived by operation of statute. Based on the evidence here, these
conditions have been met.
1. Original Jurisdiction
The state-sponsored terrorism exception provides that federal courts possess original
jurisdiction over suits against a foreign state only if (1) “money damages are sought,” (2)
“against a foreign state” for (3) “personal injury or death” that (4) “was caused” (5) “by an act of
torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material
support or resources . . . for such an act.” Id. at § 1605A(a)(1).
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Here, each of these prerequisites is met. First, plaintiffs have only identified monetary
remedies in their Amended Complaint, ¶¶ 12–19, rendering this a suit involving only “money
damages.” Second, defendant Iran is plainly a foreign state. With respect to defendant MOIS,
the FSIA defines foreign state to include “a political subdivision . . . or an agency or
instrumentality of a foreign state.” Id. at § 1603(a). Applying this definition, courts in this
jurisdiction have been directed to ask whether an entity “is an integral part of a foreign state’s
political structure”; if so, that defendant is treated as a foreign state for FSIA purposes. TMR
Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 300 (D.C. Cir. 2005) (internal
quotations omitted). Here, the evidence establishes that MOIS is a division of the state of Iran
that acted as a conduit for the state’s provision of funds to terrorist organizations, including
Hezbollah. Defendant MOIS is thus a foreign state for purposes of these proceedings. See
Oveissi, 498 F. Supp. 2d at 275 (finding MOIS to constitute a foreign state).
Third, the Amended Complaint contains claims for assault, battery, and international
infliction of emotional distress. Am. Compl. ¶¶ 12-17. These claims are clearly actions for
“personal injury” under § 1605(A)(a)(1). Fourth, the evidence establishes that defendant Iran
founded Hezbollah for the purpose of undertaking attacks such as the 1983 bombing and
funneled money to the terrorist organization through defendant MOIS, and also demonstrates
that both defendants played necessary planning, logistical and support roles leading up the
horrific attack. See Part III.B. This is more than sufficient to satisfy the FSIA’s requirement that
there be “some reasonable connection between the act or omission of the defendant and the
damages which the plaintiff has suffered.” Valore, 700 F. Supp. 2d at 66 (internal quotations
omitted). Finally, the 1983 bombing constitutes an extrajudicial killing that occurred as a direct
12
and proximate result of defendants’ conduct in providing financial and military assistance to the
attackers. On the basis of these findings, the Court has jurisdiction over plaintiffs’ claims.
2. Waiver of Sovereign Immunity
While this Court’s exercise of jurisdiction over this action is a necessary prerequisite to
moving forward, foreign states remain immune from suit absent a waiver of sovereign immunity.
Waiver of a foreign states’ immunity can occur either by that state’s own action or by operation
of statute. The state-sponsored terrorism exception provides that such waiver occurs where (1)
“the foreign state was designated as a state sponsor of terrorism at the time of the act . . . or was
so designated as a result of such act, and . . . either remains so designated when the claim is filed
under this section or was so designated within the 6-month period before the claim is filed under
this section,” (2) the claimant or the victim was, at the time of the act . . . a national of the United
States [or] a member of the armed forces [or] otherwise an employee of the Government of the
United States . . . acting within the scope of the employee’s employment,” and (3) “in a case in
which the act occurred in the foreign state against which the claim has been brought, the
claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim.” 28
U.S.C. § 1605A(a)(2)(i)–(iii) (emphasis added).
Here, the established facts warrant waiver of defendants’ sovereign immunity as provided
by the FSIA. First, Iran was designated by the U.S. Secretary of State as a sponsor of terrorism,
partially in response to the Beirut bombing. U.S. Dep’t of State, Determination Pursuant to
Section 6(i) of the Export Administration Act of 1979—Iran, 49 Fed. Reg. 2836, Jan. 23, 1984
(designating Iran upon concluding that “Iran is a country which has repeatedly provided support
for acts of international terrorism”). Second, serviceman Fain was a member of the United
States Marine Corps at the time of the attack. Aff. of Evan Fain III, ECF No. 20, at ¶ 3. Finally,
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because the bombing occurred at the Marine barracks in Lebanon—and not Iran—the FSIA’s
requirement that defendants be given an opportunity to arbitrate this claim is inapplicable here.
For these reasons, defendants’ immunity is waived and they may be held liable for the attack
which left 241 U.S. servicemen dead, and numerous others severely injured.3
B. Liability
FISA § 1605A(c) creates a federal private right of action for victims of state-sponsored
terrorism. Specifically, a plaintiff can seek to hold a foreign state liable for (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 provision provided, by the
foreign state or an official, employee, or agent of the foreign state if the act (3) “caused” (4)
“personal injury or death” (5) “for which courts of the United States may maintain jurisdiction
under this section for money damages.” 28 U.S.C. §§ 1605A(a)(1) & (c). As the Court has
recently discussed at length, the third and fourth elements—causation and injury—“require
plaintiffs to prove a theory of liability” in which plaintiffs articulate a justification for the
recovery of the damages which they seek, generally expressed “through the lens of civil tort
liability.” Rimkus, 750 F. Supp. 2d at 176. Therefore, the Court will apply the facts of this case
to each of these elements in turn.
1. Act
On the basis of the evidence presented in Peterson, plaintiffs here have sufficiently
established that defendants were responsible for the horrific attack on the U.S. Marine barracks
3
Plaintiff served the Complaint on defendants through diplomatic channels on August 3, 2011, as
authorized under FSIA, 28 U.S.C. § 1608(a)(4). Return of Service/Affidavit, Oct. 19, 2011 [ECF No. 13]. The
Court thus has personal jurisdiction over the defendants. See Stern v. Islamic Republic of Iran, 271 F. Supp. 2d 286,
296 (D.D.C. 2003) (Lamberth, J.) (holding that personal jurisdiction exists over non-immune foreign state where
service is effected under §1608).
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in Beirut in 1983, which killed 241 U.S. servicemen and left hundreds of others severely
wounded. The evidence concerning the actions of defendants Iran and MOIS demonstrates that
they are culpable both for the extrajudicial killing of U.S. citizens and for the provision of
material support to the members of Hezbollah participating in the bombing, in satisfaction of the
first element of liability under the federal cause of action.
FSIA defines extrajudicial killing by reference to Section 3 of the Torture Victim
Protection Act of 1991. 28 U.S.C. § 1605A(h)(7). That Act defines an extrajudicial killing as
[(1)] a deliberated killing [(2)] not authorized by a previous
judgment pronounced by a regularly constituted court [(3)]
affording all judicial guarantees which are recognized as
indispensable by civilized peoples.
Torture Victim Protection Act of 1991 § 3(a), 28 U.S.C. § 1350 note. The evidence presented in
Peterson establishes that, prior to the attack on the U.S. Marine barracks, orders were issued by
Iran, through MOIS and to the Iranian Ambassador to Syria, instructing him to direct members
of terrorist organizations—such as those that perpetrated the attack in Beirut—to take action
against U.S. peacekeeping forces stationed in Lebanon. There is no evidence that this order was
sanctioned by any judicial body, and the order to use force against members of an international
peacekeeping force was in direct contravention of civil guarantees recognized as indispensable to
all free and civilized peoples. Based on these findings, the barracks bombing constitute an
extrajudicial killing, undertaken by members of Hezbollah acting as agents for defendants Iran
and MOIS.
The FSIA declares that the concept of “material support or resources” is defined by
reference to the U.S. criminal code. 28 U.S.C. § 1605A(h)(3). That definition states that support
means 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,
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facilities, weapons, lethal substances, explosives, personnel . . . and
transportation, except medicine or religious materials.
18 U.S.C. § 2339A(b)(1). The evidence presented at the Peterson trial demonstrates that during
the period leading up to the bombing, Iran founded and supported Hezbollah for the purpose of
advancing its own agenda. Testimony of multiple expert witnesses establishes that Hezbollah
was essentially composed of a number of Iranian agents who were supported financially and
materially by Iran and MOIS. And more specifically, the evidence shows that the explosive
materials used in the attack were of a type and grade that would only have been available to the
perpetrators of the attack through direct cooperation of the Iranian government, and that these
materials could only have been used as effectively as they were with military assistance and
training, which was provided by MOIS. Taken together, these acts plainly constitute the
provision of material support for FSIA purposes.
2. Actor
The Court has determined that defendants Iran and MOIS are responsible for the
provision of material support which led to the attack on the U.S. Marine barracks in Beirut. In
addition, the evidence presented in Peterson establishes that Hezbollah acted generally as an
agent of Iran during this period, and that it was a direct order emanating from defendants which
prompted the barracks bombing. Under such circumstances, defendants may be held vicariously
liable for the extrajudicial killing perpetrated by the bombers. See Murphy, 740 F. Supp. 2d at
71–72 (holding that defendant foreign state may be held liable where Hezbollah agents “acted at
the behest and under the operational control of defendants”).
3. Theory of Recovery – Causation
The elements of causation and injury in the federal cause of action created by § 1605A
require FSIA plaintiffs “to prove a theory of liability” which justifies holding the defendants
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culpable for the injuries that the plaintiffs allege to have 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.”). When
determining the contours of these theories, the D.C. Circuit has cautioned that while the “extent
and nature” of such claims “are federal questions,” the FSIA “does not . . . authorize the federal
courts to fashion a complete body of federal law.” Bettis v. Islamic Republic of Iran, 315 F.3d
325, 333 (2003). Based on the Circuit Court’s guidance, District Courts in this jurisdiction “rely
on well-established principles of law, such as those found in Restatement (Second) of Torts and
other leading treatises, as well as those principles that have been adopted by the majority of state
jurisdictions” to outline the boundaries of these theories of recovery. In re Islamic Republic of
Iran Terrorism Litig., 659 F. Supp. 2d 31, 61 (D.D.C. 2009). Here, plaintiffs articulate three
bases for relief: assault and battery, intentional infliction of emotional distress, and punitive
damages. Am. Compl. ¶¶ 10–17.
(i) Assault and Battery
In Count I of the Amended Complaint, serviceman Fain asserts common law assault and
battery claims. ¶¶ 12–13. Iran is liable for assault in this case if, when it 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.” See Murphy, 740 F. Supp.
2d at 73–75; Restatement (Second) of Torts § 21(1). It is clear that defendants acted with intent
to cause harmful contact and the immediate apprehension thereof: acts of terrorism are, by their
very nature, intended to harm and to terrify by instilling fear of further harm. Valore, 700 F.
Supp. 2d at 76. Accepting serviceman Fain’s uncontroverted assertion that he did, in fact, fear
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such harm because of the attack, Aff. of Evan Fain III, ECF No. 20, at ¶ 5, the Court concludes
that defendants are liable for assault.
Serviceman Fain has also alleged battery. Iran is liable for battery in this case if, when it
committed extrajudicial killing or provided material support and resources therefor, it acted
“intending to cause a harmful or offensive contact with ..., or an imminent apprehension of such
a contact” by, those attacked and (2) “a harmful contact with” those attacked “directly or
indirectly result[ed].” Restatement (Second) of Torts § 13. Harmful contact is that which results
in “any physical impairment of the condition of another's body, or physical pain or illness.” Id. §
15. Again, it is clear that defendants acted with intent to cause harmful contact and the
immediate apprehension thereof: acts of terrorism are, by their very nature, intended to harm and
to terrify by instilling fear of such harm. Valore, 700 F. Supp. 2d at 77. Accepting serviceman
Fain’s uncontroverted assertions that he did, in fact, suffer severe physical injury from the blast,
Aff. of Evan Fain III, ECF No. 20, at ¶ 5, the Court concludes that defendants are liable for
battery.
(ii) Intentional Infliction of Emotional Distress
Plaintiffs set forth two Counts of intentional infliction of emotional distress. Am. Compl.
Counts II–III. Count II is brought on behalf of serviceman Fain. Id. at ¶¶ 14–15. Count III is
brought on behalf of serviceman Fain’s wife Maria Fain and their children Maria Elena Amosa,
Evan Fain IV, and Joseph Edward Fain. Id. at ¶¶ 14–17. Each Count sets forth similar factual
allegations—that the attack on the U.S. Marine barracks caused the plaintiffs to suffer “extreme
mental anguish.” Id. at ¶¶ 15, 17. Each individual plaintiff seeks $20 million in compensatory
damages for their emotional distress.
This Court and others have frequently addressed the intentional infliction of emotional
distress theory following enactment of § 1605A. Relying principally on the Restatement, courts
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have set for the following standard: “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.” Heiser v. Islamic
Republic of Iran, 659 F. Supp. 2d 20, 26 (D.D.C. 2009) (citing Restatement (Second) of Torts §
46(1)). The scope of recovery under this theory is limited by two qualifications: the plaintiff
must be “a member of [the injured person’s] immediate family” and must be “present at the
time.” Restatement (Second) of Torts § 46(2)(a)–(b). The former qualification is of no
consequence here, as plaintiffs are either the spouse or children of the injured servicemen, and
thus fall within even the strictest definition of immediate family. See Valore, 700 F. Supp. 2d at
79 (noting that immediate family “is consistent with the traditional understanding of one’s
immediate family” and includes “one’s spouse, parents, siblings, and children”).
The issue of presence, however, warrants a bit more discussion. Plainly, none of the
plaintiffs in this action except for serviceman Fain were present in Beirut and witnesses to the
bombing of the U.S. Marine barracks. However, this Court has previously recognized that the
presence requirement is subject to a caveat—specifically, the Restatement “‘expresses no
opinion as to whether there may not be other circumstances under which the actor may be subject
to liability.’” Heiser, 659 F. Supp. 2d at 26–27 (quoting Restatement (Second) of Torts § 46).
As the Heiser Court explained: “Terrorism [is] unique among the types of tortuous activities in
both its extreme methods and aims . . . . ‘All acts of terrorism are by the very definition extreme
and outrageous and intended to cause the highest degree of emotional distress, literally, terror.’”
Id. at 27 (quoting Stethem v. Islamic Republic of Iran, 201 F. Supp. 2d 78, 89 (D.D.C. 2002)).
Thus, the Court concluded that a plaintiff “need not be present at the place of outrageous
conduct, but must be a member of the victim’s immediate family.” Id. Following this holding,
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the Valore Court determined that the Beirut bombing qualified as an extreme and outrageous act
sufficient to invoke this theory of recovery for non-present plaintiffs, 700 F. Supp. 2d at 79–80,
and the Court shall do the same here. Defendants are thus liable for the mental anguish and
suffering that all plaintiffs have endured as a result of the attack on the U.S. Marine barracks in
Beirut.
(iii) Punitive Damages
Plaintiffs set forth a final Count entitled “Punitive Damages.” Amended Complaint ¶¶
18–19. This Count alleges that defendants’ actions “were intentional and malicious and in
willful, wanton and reckless disregard of [plaintiffs’] . . . emotional well-being,” and seeks an
award of $600 million in punitive damages. Id.
It is well established that punitive damages is not an independent cause of action. Botvin
v. Islamic Republic of Iran, 604 F.Supp.2d 22, 25 (D.D.C.2009) (internal quotations omitted).
The Court grappled with claims solely for punitive damages under the FSIA in Rimkus,
explaining that “a plaintiff must set forth an independent claim—generally sounding in
intentional tort or strict liability—for which punitive damages may be an appropriate remedy.”
750 F. Supp. 2d at 175 (emphasis own; citing Restatement (Second) of Torts § 908 cmt. c
(1979)). In Rimkus, the Court permitted the plaintiff's claim for punitive damages to go forward
after determining that the plaintiff had “specifically alleged” a claim under FSIA by setting forth
“each element in the federal cause of action provided by § 1605A.” Id.
Here, plaintiffs have not attempted to set forth a complete cause of action under Count
IV, but rather rely primarily on the nature of defendants' conduct in this case to sustain their
claims for punitive damages. Am. Compl. ¶¶ 18–19. This is plainly insufficient, see Iacangelo
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v. Georgetown Univ., 580 F.Supp.2d 111, 114 (D.D.C.2008) (dismissing “free-standing punitive
damages claim as improperly pled”), and Count IV should be dismissed.
This is not to say, however, that plaintiff may not recover punitive damages in this action.
As the Rimkus Court also made clear, where appropriate, punitive damages may be pursued as a
remedy to an intentional tort. 750 F. Supp. 2d at 175–76; see also Anderson v. Islamic Republic
of Iran, 753 F. Supp. 2d 68, 87 (D.D.C. 2010). Here, as seen above, plaintiffs have set forth
proper causes of action for intentional infliction of emotional distress—an intentional tort. The
Court will thus treat Count IV of the Amended Complaint as requesting the remedy of punitive
damages in relief of the claims set forth in Counts I–III. See Park v. Hyatt Corp., 436 F.Supp.2d
60, 66 (D.D.C.2006) (noting that “punitive damages are not an independent cause of action” but
treating plaintiff's claim for punitive damages “as part of an ad damnum clause”).
4. Personal Injury
This Court has already determined in Part IV.A.1 that plaintiffs have brought an action
for “personal injury or death” by bringing claims for assault, battery, and intentional infliction of
emotional distress.
5. Jurisdiction
The Court has already determined in Part IV.A.1 that it is proper to exercise jurisdiction
over defendants in this action, and that plaintiffs are only seeking monetary compensation. This
final element is thus satisfied, and defendants may be properly held liable under the federal cause
of action embodied in § 1605A(c) for the 1983 bombing of the U.S. Marine barracks.
V. SPECIAL MASTER
Though the Court has determined that defendants are liable to plaintiffs under the FSIA,
it also lacks evidence necessary to render an appropriate measure of damages. In determining
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the proper measure of damages, “[t]he courts of the United States may appoint special masters to
hear damages claims brought under” the state-sponsored terrorism exception to the FSIA. 28
U.S.C. § 1605A(e)(1). Here, appointment of a special master would not impose undue expenses
on any party and will not result in unreasonable delay—a prerequisite set forth in Fed. R. Civ. P.
53(a)(3). To the contrary, the use of special masters will affirmatively assist the Court in the
efficient resolution of claims in this action.
As noted extensively above, this case is related to the Peterson case, and as a result it is
subject to the administrative plan for special masters first set forth in that action. See Amended
Administrative Plan Governing Appointed Special Masters 1, July 30, 2003, Peterson, No. 01
Civ. 2094 [29] (noting that the plan applies to “any other cases arising out of the October 23,
1983 occurrence at Beirut, Lebanon assigned to Judge Royce C. Lamberth in which special
masters are appointed”) (“Plan”). The Plan requires that plaintiffs provide the Court, within
thirty days of the adoption of the Plan, with the potential special master’s curriculum vitae, and
that the potential special master submit an affidavit to the court disclosing whether there is any
ground for his or her disqualification under 28 U.S.C. § 455, consistent with Rule 53. Id. at 2.
Location and appointment of a special master is therefore the next step in this action.
VI. CONCLUSION
On October 23, 1983, plaintiffs and the world were horrified by the tragic and devastating
destruction of the U.S. Marine barracks in Beirut, Lebanon. Thankfully, despite the efforts of
Iran and MOIS to inflict of maximum devastation and death, servicemen Fain escaped with his
life. Plaintiffs, however, still suffered greatly, both from the thought that serviceman Fain might
be dead, and from fear arising from the knowledge that a close member of their family had been
the victim of a horrific terrorist attack. The Court, however, lacks sufficient evidence to render
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any determination concerning the appropriate amount of damages to be awarded to plaintiffs
here. Thus, the Court holds that defendants Iran and MOIS are legally liable to plaintiffs for the
emotional and mental anguish they suffered as a result of the Beirut bombing, and directs
plaintiffs to submit a motion for appointment of a special master to assist the Court in making an
appropriate determination of damages.
A separate Order and Judgment consistent with these findings shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on April 20, 2012.
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