Roth v. Islamic Republic of Iran

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ZACHARY CARL ROTH, et al.,
Plaintiffs,
v. Case No. 1:19-cv-02179-TNM
ISLAMIC REPUBLIC OF IRAN,
Defendant.
MEMORANDUM OPINION*
This civil action for compensatory and punitive damages arises under the terrorism
exception to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A. Plaintiffs sue the
Islamic Republic of Iran for personal injury and solatium damages. They allege that Iran
provided material support and resources to multiple terrorist organizations in Iraq and
Afghanistan that perpetrated various attacks injuring them or their family members.
Iran did not respond, and Plaintiffs now move for default judgment as to liability. 1 The
Court finds that Plaintiffs have successfully established personal and subject matter jurisdiction
under § 1605A for most alleged attacks. And Plaintiffs have proven that Iran committed assault,
battery, and intentional infliction of emotional distress. Plaintiff GG, however, has not provided
* This is a redacted version of a sealed Opinion issued on December 28, 2022. In this version,
the Court replaces Plaintiffs’ names with letters of the alphabet to protect their privacy in light of
the sensitive medical information they provide.
1
Plaintiffs previously filed a motion seeking appointment of a special master to assess damages,
see ECF No. 95, which the Court denied as premature. Plaintiffs may renew that motion now
that the Court has found Iran liable.
1
the Court with enough evidence to assure it that Iran proximately caused one of the two attacks
in which he was injured. The Court will therefore grant Plaintiffs’ motion for default judgment
in large part but will deny it as to that one attack.
I. BACKGROUND
At issue are 26 attacks that occurred in Iraq and Afghanistan between 2003 and 2013.
See Exp. Witness Rep. of Michael Pregent (Pregent Rep.) at 22–33, 35–37, ECF No. 91-2.
Plaintiffs allege that so-called Shia Special Groups and al-Qaeda in Iraq and the Taliban in
Afghanistan committed the attacks with Iranian “material support and resources.” See Third
Am. Compl. (Compl.) ¶¶ 17–46. The Foreign Sovereign Immunities Act (FSIA) “establishes a
general rule granting foreign sovereigns immunity from the jurisdiction of United States
courts . . . [but] that grant of immunity is subject to a number of exceptions.” Mohammadi v.
Islamic Repub. of Iran, 782 F.3d 9, 13–14 (D.C. Cir. 2015). One of these exceptions, known as
the “terrorism exception,” waives sovereign immunity for countries that provide material support
to terrorist organizations. See 28 U.S.C. § 1605A. Plaintiffs bring their case under this
exception. See Compl. ¶ 1.
Because Iran did not respond, Plaintiffs move for default judgment. Before the Court can
enter default judgment, Plaintiffs must establish subject matter and personal jurisdiction.
See Jerez v. Repub. of Cuba, 775 F.3d 419, 422 (D.C. Cir. 2014). Section 1605A provides a
mechanism for Plaintiffs to show both types of jurisdiction over a non-responsive foreign
sovereign. The Court’s analysis thus focuses on whether Plaintiffs have properly pled all
elements of a claim under § 1605A. To do this, Plaintiffs must identify the terrorist groups
responsible for the attacks and show that Iran supported them.
2
Plaintiffs do this in two ways. First, they provide expert testimony. Plaintiffs’ expert,
former U.S. intelligence officer Michael Pregent, submitted a report and testified at an
evidentiary hearing. See generally Pregent Rep.; Tr. of Evidentiary Hr’g (Hr’g Tr.), ECF 102.
At that hearing, the Court recognized Pregent as an expert within the field of military
intelligence, terrorism, and counterterrorism under Federal Rule of Evidence 702. See Hr’g Tr.
at 19. Pregent has submitted reports and testified in three other FSIA cases in this district
involving Iran and provided declarations in two others related to Yemen. See Hr’g Tr. at 12–13;
see also, e.g., Frost v. Islamic Repub. of Iran, 383 F. Supp. 3d 33, 38 (D.D.C. 2019) (qualifying
Pregent as an expert on “Iranian influence in Iraq”); Karcher v. Islamic Repub. of Iran, 396 F.
Supp. 3d 12, 19 (D.D.C. 2019) (qualifying Pregent to testify “regarding ‘intelligence matters,
including attribution of terror attacks and also evidence collection and analysis in the intelligence
field’”). In FSIA cases, expert testimony is often sufficient for plaintiffs to meet their burden
because “firsthand evidence and eyewitness testimony is difficult or impossible to obtain from an
absent and likely hostile sovereign.” Owens v. Repub. of Sudan, 864 F.3d 751, 785 (D.C. Cir.
2017), vacated and remanded sub nom. Opati v. Repub. of Sudan, 140 S. Ct. 1601 (2020).
Second, Plaintiffs ask the Court to take judicial notice of prior decisions by courts in this
district that have held Iran responsible under § 1605A on similar facts. See Pls.’ Mem. in Supp.
of Pls.’ Mot. for Default J. (Pls.’ Mem.) at 3–4, ECF No. 91. Federal Rule of Evidence 201(b)
permits courts to take judicial notice of facts that are “not subject to reasonable dispute” and that
are “either (1) generally known within the territorial jurisdiction . . . or (2) capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b).
3
In FSIA litigation, courts can “rely upon the evidence presented in earlier litigation—
without necessitating the formality of having that evidence reproduced—to reach their own,
independent findings of fact in the cases before them.” Rimkus v. Islamic Repub. of Iran, 750 F.
Supp. 2d 163, 172 (D.D.C. 2010). The Court therefore takes judicial notice of these cases:
Cabrera v. Islamic Repub. of Iran, No. 19-cv-3835, 2022 WL 2817730 (D.D.C. July 19, 2022);
Selig v. Islamic Repub. of Iran, 573 F. Supp. 3d 40 (D.D.C. 2021); Fritz v. Islamic Repub. of
Iran, 320 F. Supp. 3d 48 (D.D.C. 2018); Frost, 383 F. Supp. 3d 33; Karcher, 396 F. Supp. 3d 12;
Karcher v. Islamic Repub. of Iran, No. 16-cv-232, 2021 WL 133507 (D.D.C. Jan. 14, 2021); Lee
v. Islamic Repub. of Iran, No. 19-cv-00830, 2021 WL 325958 (D.D.C. Feb. 1, 2021). This is not
to say that the Court automatically accepts all findings or assertions in these prior cases; it
merely considers relevant findings from them when evaluating Plaintiffs’ burdens here.
The Court assesses this evidence and makes findings of fact before proceeding to its
conclusions of law.
II. FINDINGS OF FACT
A. The Beginning of Iran’s Support for Terrorism
Modern Iran began with the 1979 revolution. See Karcher, 396 F. Supp. 3d at 22.
Ayatollah Khomeini established himself as Supreme Leader and created the Islamic
Revolutionary Guard Corps (IRGC) to prevent “backsliding in implementing his vision for an
Islamic theocratic government.” Id. In Khomeini’s vision, the conventional Iranian military
would protect Iran’s borders while the IRGC “protect[ed] the revolution.” Id. Khomeini also
established the Quds Force, an arm of the IRGC responsible for its international operations. Id.
It “trains, advises and logistically supports terrorist and insurgent movements, and performs
related clandestine and covert special operation activities, on behalf of the Iranian government.”
4
Lee, 518 F. Supp. 3d at 482. The Quds Force “is responsible to and directed by the Supreme
Leader of Iran.” Frost, 383 F. Supp. 3d at 39. As Plaintiffs’ expert explained, the Quds force is
“a hybrid . . . intelligence service and special operations service. And it is one of the most
capable entities that the U.S. military has faced.” Hr’g Tr. at 8.
One of the terrorist movements the Quds Force supports is Hezbollah, a Lebanese
terrorist organization. Hezbollah is the Quds Force’s “premier proxy” in the Middle East.
Pregent Rep. at 7. “In exchange for Hezbollah’s unwavering dedication to Iran and its
revolutionary aims, Iran bankrolled, armed, and trained Hezbollah.” Lee, 518 F. Supp. 3d at
482. In 2018, experts estimated that “Iran provides Hezbollah with as much as $700 million–$1
billion per year in the form of cash, training, intelligence, and weapons.” Fritz, 320 F. Supp. 3d
at 60 (cleaned up). “Hezbollah envisions itself as ‘the sharp end of the spear, going where Iran
tells it to go in defense of . . . Shia Muslims around the world.’” Id. (cleaned up). Hezbollah
has carried out multiple attacks on Americans at Iran’s behest. See id.
Hezbollah also provided vital support to terrorist groups in Iraq and Afghanistan.
Beginning in the early 1990s, al-Qaeda leaders secretly traveled to Iran to meet with Hezbollah.
See Pregent Rep. at 7–9. For example, al-Qaeda principal Ayman al-Zawahiri “made a secret
visit to Iran to ask for help in al-Qaeda’s campaign to overthrow the government of Egypt” in
1991. Id. at 7. At that meeting, al-Zawahiri met with Hezbollah’s chief of terrorist operations.
See id. The Hezbollah chief persuaded al-Zawahiri that suicide bombings—which al-Qaeda had
frowned upon for religious reasons—were “justified [] as an appropriate act of a jihad warrior.”
Id. at 8.
Several years later, Osama bin Laden and other senior al-Qaeda leaders met with Iranian
officials and the terrorist operations chief for Hezbollah in Sudan to discuss a terrorism alliance.
5
See id. After the meeting, bin Laden began sending terrorist operatives to train at Hezbollah
camps in both Lebanon and Iran. See id. This arrangement continued for a decade. See id.
And starting in 1995, the Quds Force began teaching al-Qaeda operatives in Lebanese training
camps how to make better explosive devices and other weapons that terrorists would later use in
Afghanistan and Iraq. See id. at 9. Iran’s Supreme Leader approved of the Iranian Hezbollah
terrorist training programs. See id. at 8.
B. Iran’s Role in Iraq
Iran’s proxies were already active in Iraq when American and coalition forces entered to
topple Saddam Hussein. See Lee, 518 F. Supp. 3d at 482. The same month that the United
States began its attack, Iran freed many Sunni jihadists that it had been holding captive and sent
them to Iraq to battle the U.S. military. 2 See Pregent Rep. at 9; see also Hr’g Tr. at 26. The
Quds Force then provided Abu Musab al-Zarqawi (a Jordanian jihadist leader), with funds and
weapons, all while facilitating his safe passage into Iraq to fight the U.S. forces. See Pregent
Rep. at 9; see also Hr’g Tr. at 26–27. The goal: “providing material support, financing, funding,
training, and weapons to al-Qaeda to attack, kill[,] and injure Americans[.]” Hr’g Tr. at 27. A
few months later, bin Laden began sending $1.5 million a month to Iraqi insurgents, including al-
Zarqawi who then led al-Qaeda in Iraq (AQI). See Pregent Rep. at 10.
Iran moved quickly to exploit the power vacuum following Saddam Hussein’s
defenestration. See Lee, 518 F. Supp. 3d at 483. Iran “sought to install weakened, decentralized,
and Shia-dominated leadership in Iraq and therefore set out to foster unity among Iraq’s various
2
Islam has two major branches: Shia and Sunni Islam. See Frost, 383 F. Supp. 3d at 39.
Though Iran is mostly Shia and the intelligence community historically thought its goal was to
“spread[] the Shia revolution,” Plaintiffs’ expert explained that the Quds force helped Sunni
groups so long as they acted against the United States. See Hr’g Tr. at 8–9.
6
Shia parties and movements so that it could consolidate Shia political control . . . over the new
Iraqi government.” Id. (cleaned up). Simultaneously, Iran devoted considerable effort to
pushing the United States out of the country. See Fritz, 320 F. Supp. 3d at 61. Seeing the
American forces active in nearby countries—Iraq and Afghanistan—Iranian leaders worried their
country would be next. See Hr’g Tr. at 23. But “[i]f the United States were humiliated in Iraq
and forced out of the region in disgrace, the thinking went, the Americans would be deterred
from pursuing similar military interventions in the Gulf region in the future.” Fritz, 320 F. Supp.
3d at 61 (cleaned up). Iran’s proxies were vital to this strategy because Iran did not want a direct
conflict with U.S. and coalition forces. See id.
Over time, Iran began to recruit leadership for a new terror proxy, Asa’ib Ahl al-Haq
(AAH). See Lee, 518 F. Supp. 3d at 483. To facilitate AAH’s rise, Iran’s Supreme Leader met
with a terrorist named Qais Khazali in Iran and asked him to lead it. See Fritz, 320 F. Supp. 3d
at 62. Within several years, Khazali became the leader of all Special Groups in Iraq. See id.
Khazali’s recruitment was a coup for Iran because he was “familiar with Iranian surrogate
networks operating in Iraq and their leadership structures and with the facilitation and movement
of personnel and equipment across the Iran-Iraq border.” Id. (cleaned up). Khazali frequently
met with Quds Force officers to coordinate Iranian support. See id. And he “bragged of his
group’s role in ‘forcing’ the U.S. withdrawal from Iraq and killing American Soldiers.” Pregent
Rep. at 21.
But AAH’s victories were not enough, for Iran continued to groom new terrorist groups
to use as proxies. See id. at 10, 20. One of these groups, Kata’ib Hezbollah (KH), was led by a
senior advisor to the IRGC. See Karcher, 396 F. Supp. 3d at 25. KH was “responsible for
numerous terrorist acts against Iraqi, U.S., and other targets in Iraq.” Id. Another group was
7
AQI. See Pregent Rep. at 10, 20. Iran provided AQI members with documents, identification
cards, and passports to facilitate their movements. See id. at 10. And Iran even negotiated the
release of AQI operatives from prison. See id. Similarly, Iran created the Badr Corps, which
became its premier proxy in Iraq after the 2003 Iraq War. See Hr’g Tr. at 21–22. Members of
the Badr Corps “dominated the officer ranks of the Iraqi Security Forces” and “Iraq’s
intelligence and security apparatus.” Pregent Rep. at 7; see also Hr’g Tr. at 22–23.
Iran also provided training and weapons to all of these proxies. Indeed, by 2007 the
IRGC and Quds Force provided about $750,000 to $3 million worth of assistance to its proxies
every month. See Lee, 518 F. Supp. 3d at 483. Using Hezbollah and a variety of smuggling
routes, Iran brought terrorists into the country for training. See id.; see also Karcher, 396 F.
Supp. 3d at 23. At Iran’s behest, Hezbollah “created a unit whose sole purpose was to train Iraqi
Shia militants . . . to carry out attacks in Iraq directed at U.S. troops and others.” Fritz, 320 F.
Supp. 3d at 63. Hezbollah then ordered one of its senior commanders to travel to Iran to train the
Special Groups “in ways that mirrored how Hezbollah was organized in Lebanon.” Id. The
commander traveled to Iran and met with Quds Forces operatives. Id. He ultimately made four
trips into Iraq to “monitor and report on the training and arming of Special Groups[.]” Id. at 64
(cleaned up). “With Hezbollah’s assistance, Iran provided training at every level of the militant
organizations that received assistance, from foot soldier to leadership.” Id. (cleaned up).
In terms of weapons, Iran primarily provided explosively formed penetrators (EFPs),
improvised explosive devices (IEDs), mortars, and rocket-propelled grenades (RPGs), plus
training on how to use them. See Pregent Rep. at 17–21; see also Hr’g Tr. at 27; see also Fritz,
320 F. Supp. 3d at 63. EFPs are a signature weapon of Iran and have devasted American forces.
See Pregent Rep. at 18–19; see also Karcher, 396 F. Supp. 3d at 26, 27. An EFP is a “short
8
metal pipe loaded with high-energy explosive and capped with a concave copper disk.” Karcher,
396 F. Supp. 3d at 26. Detonating the EFP forces the copper disk “outward into a molten slug”
that travels fast enough to puncture “the hardest steel [the United States] can make” to armor its
military vehicles. Id.; see also Hr’g Tr. at 47–48 (explaining that EFPs are high-powered,
directional explosives functioning as a “shotgun blast into [a] vehicle” that Iran’s proxies could
command-detonate).
Indeed, Iran introduced these “uniquely lethal” weapons because they could penetrate
armored vehicles, unlike IEDs. Lee, 518 F. Supp. 3d at 483; see also Pregent Rep. at 18. EFPs
require “precision craftsmanship” and “substantial technical expertise.” Karcher, 396 F. Supp.
3d at 26–27. More, “[e]ffectively deploying the EFP call[s] for a further layer of technical
know-how combined with substantial strategic planning.” Id. at 27. The unique components of
EFPs, the tactics through which they are deployed, and the expertise necessary to create them
have led many experts to trace the EFPs detonated in Iraq to Iran and Hezbollah. See id.; see
also Hr’g Tr. at 27.
Beyond EFPs, Pregent explained that Iran also provided training on other weapons. See
Hr’g Tr. at 27, 151. Iran’s proxies needed to understand how to accurately deploy weapons such
as IEDs and RPGs against Americans. See id. at 50–52, 66–67. And Iran taught them how to
commit “complex attacks,” which involve multiple weapons such as IEDs combined with RPGs,
small-arms fire, and more. See id. at 30–31, 66–67; see also Pregent Rep. at 6–7.
C. Iran’s Role in Afghanistan
Through the Quds Force, Iran also provided lethal aid to the Taliban in Afghanistan in the
form of both weapons and money. See Pregent Rep. at 13–14. Iran also became a transit point
for moving fighters into Afghanistan, given its shared borders with the country. See id. at 10.
9
Since at least 2006, the Quds Force has “arranged frequent shipments of small arms and
associated ammunition, rocket propelled grenades, mortar rounds, 107mm rockets, plastic
explosives, and man-portable defense systems to the Taliban.” Id. at 13. As the State
Department has explained, “Iran has shipped a large number of weapons to Kandahar,
Afghanistan, aiming to increase its influence in this key province.” 3 And Iran invited Taliban
members in for training on “ambushes, mortar and rocket attacks, IEF, EFPs, IEDs, sniper
operations, and kidnapping operations.” Id. at 15.
When Navy SEALs raided bin Laden’s Pakistan compound in 2011, they found more
evidence that Iran “facilitated the movement of operatives in Afghanistan” and “funded and
armed al-Qaeda operatives to strike American targets.” Id. at 12. Importantly, they learned that
al-Zarqawi, the leader of AQI, received training and funds from the Quds Force. See id. In
response, the United States sanctioned Hossein Musavi, commander of the Quds Force’s
Afghanistan unit known as the Ansar Corps. 4 Several years later, the Treasury Department
designated al-Qaeda in Iran as a terrorist organization. 5 The designation “underscores that Iran
continues to allow [al-Qaeda] to operate a core pipeline that moves [al-Qaeda] money and
fighters through Iran to support [al-Qaeda] activities in South Asia.” Id.
3
See Country Reports on Terrorism 2012 at 196, U.S. Dep’t of State (Apr. 2008), https://2009-
2017.state.gov/documents/organization/210204.pdf.
4
See Fact Sheet: U.S. Treasury Department Targets Iran’s Support for Terrorism Treasury
Announces New Sanctions Against Iran's Islamic Revolutionary Guard Corps-Qods Force
Leadership, U.S. Dep’t of the Treasury (Aug. 3, 2010), https://home.treasury.gov/news/press-
releases/tg810.
5
See Treasury Further Exposes Iran-Based Al-Qa’ida Network, U.S. Dep’t of the Treasury
(Oct. 18, 2012), https://www.treasury.gov/press-center/press-releases/Pages/tg1741.aspx.
10
* * *
Iran’s support for terrorism has been far-reaching and effective. Iran’s provision of
support to proxy groups allowed it to be the puppet master behind the curtain instigating what
U.S. intelligence originally believed were unrelated terrorist attacks in Iraq and Afghanistan.
See, e.g., Hr’g Tr. at 6–7, 25–26. Plaintiffs are victims of these attacks.
D. The Attacks
Plaintiffs’ expert examined each attack to decide whether he could determine the likely
perpetrators with a reasonable degree of professional confidence. See Pregent Rep. at 22. He
described his methodology during the evidentiary hearing. See, e.g., Hr’g Tr. at 11–12. For
every attack, Pregent studied where it took place, the time, the weapons system used, the
complexity of the attack, and what group had primacy in the relevant region. See id. at 11, 14.
He then compared that data with other “indicators” such as “foreign fighter flow” and any
official military reports of “significant event[s] or significant activit[ies]” in the vicinity, called
“SIGACTS.” See id. at 11, 15. 6 Finally, he “overlay[ed] the IRGC-Quds Force strategy, al-
Qaeda’s strategy[,] and the U.S. military operations at the time in conjunction with Iraqi security
forces.” Id. at 14. Through these strategies, Pregent testified that he is able to conclude what
terrorist group most likely committed each attack. See id. at 14; see also Pregent Rep. at 22–37.
Pregent used many of these same methods while he was working for the United States
6
Pregent explained that he found some of these SIGACT records and explosive reports in
unredacted form on the WikiLeaks database, which he accessed because he no longer has a
security clearance. See Hr’g Tr. at 15. Pregent is able to identify which WikiLeaks records are
official State Department or Multinational Forces documents based on his experience looking at
similar files while working in government. See id.; see also id. at 17. The Court is unaware of
any other FSIA cases in which courts found WikiLeaks to be a credible source. Without
contrary evidence or arguments from Iran, the Court reluctantly accepts Pregent’s analysis of
purported government records he found in the database.
11
government in counterterrorism. See Hr’g Tr. at 14.
Pregent also reviewed solider and family member declarations and each soldier’s DD214
form—the official document detailing one’s military history. See id. at 15–16; see also Pregent
Rep. at 22–37. He used these documents to determine who was attacked and whether the nature
and location of the attacks fit the profile of groups that received lethal aid from the Quds Force
and Hezbollah. See Pregent Rep. at 22–37. And he compared the service members’ declarations
to the other data he amassed to test the accuracy of their recollections. See Hr’g Tr. at 16–17.
Pregent’s research led him to revise the specifics of some attacks. See id. at 17–18. In a few
cases, Pregent’s revisions led him to eliminate some attacks entirely. Compare, e.g., Pregent
Rep. at 28 (explaining that Plaintiff BB was injured in an RPG attack in November 2006), with
Compl. at 19 and Decl. of BB at ¶ 7, ECF No. 45-17 (claiming that BB was injured in an IED
and vaporized chlorine attack in January or February 2007 along with the November 2006 RPG
attack). In other cases, Pregent merely changed the type of weapon that caused the attack. For
example, several soldiers said they were injured by EFPs, but Pregent determined that EFPs were
not in use at the time of their injury. See, e.g., Hr’g Tr. at 74–75. Where Pregent’s expert
conclusions diverged from Plaintiffs’ affidavits, the Court relies on his report and testimony.
The Court now summarizes the various attacks at issue. The Court begins with the
attacks Pregent described as “complex” because of the multiple weapons involved, duration, and
advanced planning required. Then the Court discusses attacks involving EFPs, a signature
weapon of Iran. Finally, the Court discusses attacks involving IEDs, RPGs, and small arms fire.
1. The “Complex” Attacks
Attack #1: Plaintiffs A, B, C, D, E, F, G, H, I, J, K, L, and M are U.S. citizens who
served in the Army National Guard during Attack #1. See Decl. of A ¶ 1, ECF No. 45-10; Decl.
12
of B ¶ 1, ECF No. 45-30; Decl. of C ¶ 1, ECF No. 45-23; Decl. of D ¶ 1, ECF No. 45-28; Decl.
of E ¶ 1, ECF No. 45-21; Decl. of F ¶ 1, ECF No. 45-24; Decl. of G ¶ 1, ECF No. 45-32; Decl. of
H ¶ 1, ECF No. 45-11; Decl. of I ¶ 1, ECF No. 45-26; Decl. of J ¶ 1, ECF No. 45-1; Decl. of K
¶ 1, ECF No. 45-5; Decl. of L ¶ 1, ECF No. 45-6; First Am. Decl. of M ¶ 1, ECF No. 98. This
attack also involves Plaintiffs N1 and N2, who are U.S. citizens and the surviving parents of N,
who was a U.S. citizen and serving in the Army National Guard when he was killed in the attack.
See Decl. of N1 ¶¶ 2–3, ECF No. 45-4.
Terrorists attacked in June 2004 when the soldiers were driving in a convoy in
Baqubah—where AQI had primacy—on a mission to clear IEDs. See, e.g., Hr’g Tr. at 73;
Pregent Rep. at 23. As they neared a traffic circle, terrorists ambushed them in a complex attack
with “machine gun rounds, RPGs, and a daisy chain of IEDs.” Decl. of A ¶ 5; see also Hr’g Tr.
at 73–74. Pregent explained that this attack “demonstrates a level of sophistication and [shows]
how prominent and how dangerous [AQI] was at the time.” Hr’g Tr. at 73. He labeled it an
“ambush” because the particulars of the attack indicate that al-Qaeda had developed intelligence
and set up the attack on a road where they knew the soldiers were operating. See id. at 74. In
particular, the daisy-chained IEDs were “all tied together and spread out so they hit at different
points of the convoy,” indicating thoughtful advanced planning. Id. at 73. Many Plaintiffs
suffered injuries from this attack, and one died as a result:
• N suffered a traumatic femoral artery injury. He succumbed to his injuries. See Decl.
of N ¶ 8.
• A received shrapnel injuries to his hand and his neck, and a doctor diagnosed him
with a traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), and
tinnitus. See Decl. of A ¶¶ 6, 9.
13
• B suffered a TBI, shrapnel wounds, burns, a spinal cord injury, and vision loss. See
Decl. of B ¶ 6.
• C received shrapnel wounds and gunshot wounds to his left arm. See Decl. of C ¶ 15.
Medical providers later diagnosed him with PTSD. See id. ¶¶ 15, 16.
• D suffered shrapnel wounds, burns, and vision loss. See Decl. of D ¶¶ 7, 9, 10. He
was later diagnosed with a spinal cord injury, hearing loss, tinnitus, fibromyalgia, and
PTSD. See id. ¶ 7.
• E was diagnosed with a TBI, a spinal injury, tinnitus, and PTSD. See Decl. of E ¶ 8.
• F was severely burned and took many shrapnel wounds to his back and body. See
Decl. of F ¶ 6. He suffered vision loss, and doctors later diagnosed him with PTSD, a
back injury, tinnitus, and injuries to his knees, ankles, and both his shoulders. See id.
¶ 7.
• G was knocked unconscious by the attack and doctors later diagnosed him with TBIs,
a detached retina in his left eye, and PTSD. See Decl. of G ¶¶ 6, 8.
• H was injured by direct and secondary blasts and sustained blast injuries, TBIs,
hearing loss, an ankle injury, and was later diagnosed with PTSD. See Decl. of H ¶ 9.
• I was hit in the knee by a turret shield door and received shrapnel wounds to his left
hand. Doctors later diagnosed him with hearing loss and PTSD. See Decl. of I ¶¶ 7,
11.
• J was hit by direct and secondary blasts and suffered a TBI, a blast injury, and vision
loss. See Decl. of J ¶ 7. A doctor later diagnosed him with PTSD. See id.
• K suffered a TBI, a back injury, and hearing loss. See Decl. of K ¶ 6. Medical
professionals later diagnosed him with PTSD. See id.
14
• L suffered a TBI, vision loss, and was later diagnosed with PTSD. See Decl. of L ¶ 6.
• M suffered a concussion, TBIs, and injuries to his back and both legs. Decl. of M
¶ 33. He continues to experience sleep apnea, PTSD, Hashimoto’s thyroiditis,
urinary hesitancy, hypogonadism, and erectile dysfunction. Id.
The soldiers who suffered TBIs and who were diagnosed with PTSD explained how these
conditions continue to undermine their daily existence. See, e.g., Decl. of E ¶¶ 9, 10; Decl. of K
¶¶ 9, 10.
Pregent attributed this attack to AQI, to whom the Quds force and Hezbollah “provided
lethal aid,” “foreign fighters,” and training. Pregent Rep. at 23; Hr’g Tr. at 73–77. Pregent
explained that this complex, sophisticated attack took place in an area where AQI had primacy.
See Hr’g Tr. at 73. More, this was the type of attack that AQI was known for because it used
different, strategically placed weapons. See id. at 76. Therefore, based on the time, types of
weapons, sophistication of the attack, and the group controlling the region, Pregent concluded
that only AQI could have been responsible. See id. at 74–76.
Attack #3: Plaintiff O is a U.S. citizen who served in the U.S. Army. See First Am. Decl.
of O ¶ 1, ECF No. 92. While serving in Iraq, he was a member of a team working to breach a
building to secure a target in October 2008. See id. ¶¶ 5–6. During the mission, the building
door exploded, knocking O unconscious. See id. ¶ 6. When he regained consciousness, he was
under fire from terrorists armed with RPGs and small arms. See id. O suffered blast injuries,
shrapnel wounds, fractures to both of his feet, and a back injury. See id. ¶ 7. Doctors later
diagnosed him with PTSD, a TBI, hearing loss, and knee bursitis. See id. ¶ 8.
Pregent attributed the attack to AAH because of its location and his knowledge that the
Quds force had trained AAH on the weaponry and tactics used. See Pregent Rep. at 23–24; see
15
also Hr’g Tr. at 123–24. Pregent classified this as a “complex” attack because it involved
multiple weapons systems and was sustained over time. See id. at 122–23. And Pregent
explained that at this point in time (October 2008), U.S. forces were attempting to take down
Shia Special Groups in Baghdad. See id. at 122. Indeed, nearly all of the military SIGACTs in
and around the area of the attack involved Shia Special Groups. See id. at 123.
Attacks #15 and 16: Plaintiff P is a U.S. citizen who served in the U.S. Army. See Decl.
of P ¶ 1, ECF No. 45-19. He was driving an Army truck near Mosul in November 2006 when a
roadside bomb exploded. See id. ¶ 6. P’s body armor ended up covered in blood from injuries to
the truck’s gunner. See id. ¶¶ 5–6. Seven months later, P was near the same location when an
RPG and small arms fire hit his vehicle. See id. ¶ 8. Because of injuries he sustained in these
attacks, P suffers from hearing loss and PTSD. See id. ¶ 12.
Pregent concluded that AQI was responsible for these attacks. See Pregent Rep. at 29.
He explained that the U.S. military was actively battling AQI in this area, and that it was the
main weapons supply and foreign fighter route into Iraq. See Hr’g Tr. at 101. Indeed, Pregent
reported that U.S. forces found nearby weapons caches containing mortars and rockets with
Iranian serial numbers. See id. at 101–02. He also noted that the roadside bomb in the first
attack “ha[d] a mortar component, meaning an indirect fire component.” Id. at 100. And he
explained that the second attack involved sustained fighting with multiple weapons systems. See
id. at 100–01; see also Pregent Rep. at 29–30. So Pregent labeled both complex attacks, and
found that they were similar to other SIGACTs in the region attributable to AQI. See Hr’g Tr. at
100–01. And he testified that only AQI could have carried out these types of attacks at the time.
See id. at 104–05.
16
2. The EFP Attacks
Attack #2: Plaintiff Q is a U.S. citizen who formerly served in the U.S. Army. See Decl.
of Q ¶ 1, ECF No. 45-2. In October 2006, Q was traveling in a vehicle in Baghdad when an EFP
hit it. See id. ¶ 5. He sustained a TBI and hearing loss. See id. ¶¶ 5, 7. A doctor later diagnosed
Q with PTSD. See id. ¶ 7. Pregent attributed the EFP attack to AAH—whom the Quds force
trained and funded—based on the signature weapon used and the area where the attack occurred.
See Pregent Rep. at 23.
Attack #4: Plaintiff R1 is a U.S. citizen and the surviving spouse of R, who served in the
U.S. Army. See Decl. of R1 ¶¶ 1, 4, ECF No. 45-7. R was the gunner for an armored vehicle
that was struck by multiple EFPs in Baghdad in November 2006. See id. ¶ 6. Fellow soldiers
evacuated R from the scene, but he was later pronounced dead. See id. ¶ 7. Based on the
signature weapon used in the attack and the location, Pregent found that AAH was responsible.
See Pregent Rep. at 24.
Attack #11: Plaintiffs S, T, U, and V are U.S. citizens who served in the U.S. Army. See
First Am. Decl. of S ¶ 1, ECF No. 91-2; Decl. of T ¶ 1; ECF No. 45-15; Decl. of U ¶ 1, ECF No.
45-27; Decl. of V ¶ 1, ECF No. 45-29. The soldiers were traveling in a convoy of armored
vehicles through Mosul in February 2007, when the rear vehicle containing S was struck by an
EFP. See Decl. of S ¶ 5. The other three vehicles stopped, and then the first vehicle was struck
by an IED. See id. The convoy was pinned down and the soldiers engaged in a fifteen-minute
firefight before they repelled the terrorists. See id.
Doctors diagnosed S with multiple TBIs, and he suffers from tinnitus and PTSD. See id.
¶ 10. T was diagnosed with multiple TBIs and is plagued by ringing in his ears, chronic pain in
his right hip, headaches, and PTSD. See Decl. of T ¶¶ 10, 11. U suffers from multiple TBIs,
17
back and neck injuries, tinnitus, and PTSD. See Decl. of U ¶ 10. V was diagnosed with, and
continues to suffer from, multiple TBIs, right upper extremity radiculopathy, neck pain, right
knee pain, tinnitus, and PTSD. See Decl. of V ¶ 10.
Pregent attributed this EFP and secondary IED and small arms fire attack to Quds-trained
and funded Shia Special Groups based on the signature weapons, tactics used, and the primacy of
the special groups in the region of the attack. See Pregent Rep. at 27.
Attack #17: Plaintiff W is a U.S. citizen who served in the U.S. Army. See Decl. of W
¶ 1, ECF No. 45-20. Between November 2006 and January 2007, W escorted explosive disposal
personnel to known IED, EFP, and roadside bomb locations near Mosul so they could be defused
or safely detonated. See id. ¶ 5. While performing this duty, he was exposed to, and suffered
blast injuries from, the detonation of the IEDs, EFPs, and other roadside bombs. See id. Doctors
later diagnosed him with PTSD, tinnitus, and hearing loss. Id. ¶ 6. Pregent attributed the EFP
blasts to AAH because EFPs were the group’s signature weapons, and he attributed the IED
attacks to Iran’s proxies and Hezbollah based on the location of the explosions. See Pregent Rep.
at 30.
Attack #18: Plaintiff X is a U.S. citizen who served in the U.S. Army. See Decl. of X
¶ 1, ECF No. 45-25. In February 2011, X was driving an enhanced armament carrier in a vehicle
convoy on a supply route south of Baghdad when his vehicle was struck by an EFP. See id. ¶¶ 5,
6. X’s vehicle rolled and flipped over. See id. ¶ 7. X sustained a TBI and injuries to his back
and right ankle and suffers from tinnitus and PTSD. See id. ¶¶ 8, 9. Pregent attributed this
attack to AAH based on the signature weapon used and the fact that it occurred in an AAH
stronghold. See Pregent Rep. at 31.
18
3. The IED, RPG, and Small Arms Attacks
Attacks #5 and 6: Plaintiff Y is a U.S. citizen who formerly served in the U.S. Army.
See Decl. of Y ¶ 1, ECF No. 45-9. Y was a gunner in an armored vehicle traveling through Sadr
City in May 2009. See id. ¶ 7. The vehicle hit an IED and the blast threw him from the vehicle.
See id. He did not wake up until he was in a medical tent back at a military base. See id. He
sustained blast injuries and a TBI from that attack. See id.
About two years later, Y and his unit responded to an explosion at a car dealership in
Baghdad. See id. ¶ 8. As he was securing the area, several IEDs exploded, blowing him off his
feet. See id. He also sustained blast injuries and a TBI from this attack. See id. Medical
professionals later diagnosed him with PTSD, anxiety, depression, and night terrors. See id. ¶¶
10, 11.
Pregent found that Shia Special Groups AAH and KH perpetrated these attacks based on
the weaponry and locations. See Pregent Rep. at 24. Pregent explained that Sadr City is a
“militia-controlled area” because “military-aged males . . . are the ones that are recruited directly
into [Shia] militias.” Hr’g Tr. at 124. As for the second attack, it occurred while U.S. forces
were on their way out of Iraq, a time when the Shia Special Groups funded and trained by Iran
had adopted tactics to “make [Americans] bleed on the way out.” See id. at 124–25. And
Pregent explained that the Quds Force trained AAH and KH militia members to use IEDs. See
id. at 125.
Attack #7: Plaintiff H—also injured in Attack #1—was injured in December 2004 in the
Diyala Province of Iraq. See Decl. of H ¶ 8. H was the driver of an armored vehicle in a convoy
returning to a military base. See id. He swerved to avoid hitting something in the road, and an
IED exploded. See id. H was injured by direct and secondary blasts, which contributed to his
19
TBIs, hearing loss, ankle injury, and PTSD. See id. ¶ 9. Pregent attributed this attack to AQI.
See Pregent Rep. at 25. Based on his analysis, Pregent determined that the Quds Force
contributed to this attack through its support of Sunni and Shia militias. See id. The attack
occurred in an area where AQI was the dominant group, if not the only group, operating. See
Hr’g Tr. at 81. And AQI frequently used IEDs in this area based on SIGACT reports. See id.
Indeed, Pregent described the IED as AQI’s “preferred tactic.” Id.
Attacks #8 and 9: Plaintiff Z is a U.S. citizen who served in the U.S. Army. See First
Am. Decl. of Z ¶ 1, ECF No. 101. In June 2004, while on a mission near Samara, Iraq, to reduce
the size of berms that insurgents had been using to bury IEDs, Z’s unit came under attack. See
id. ¶ 5. A bullet ricocheted off his gun, and fragments from the gun and the bullet hit his face.
See id. The bullet and fragments lacerated Z’s upper lip and the soft tissue under his nose, broke
seven of his teeth, chipped other teeth, shredded his tongue, and then lodged in the back of his
throat. See id. Nonetheless, Z continued to fight for 30 minutes before he was taken to a field
hospital. See id. He lost consciousness while doctors were treating him at that hospital, and he
did not wake up until he was at a military hospital in Germany. See id. He spent a month in the
intensive care unit, and his wounds required multiple facial and dental surgeries. See id. Even
after discharge from the hospital, he required several more surgeries as well as speech therapy
and further dental work. See id.
Remarkably, Z redeployed to Iraq mere months later. See id. ¶¶ 5, 6. While he was
patrolling to inspect polling sites in Samara before the Iraqi national election in January 2005,
two armor-piercing RPGs hit his vehicle. See id. ¶ 6. Z sustained an open compressed skull
fracture with a brain hematoma, a TBI, an injury to his left leg that led to amputation, a deep
joint and soft tissue injury to his right knee, an open fracture of his right hand and ring finger, a
20
detrusor instability, a thoracolumbar sprain with marked single level degenerative joint disease
of the lumbar spine, a left elbow fracture, right shoulder degenerative joint disease, and many
other shrapnel wounds and burns to his body. See id. He lost consciousness after the RPG
struck and did not wake up for some time. See id. After the attacks, doctors diagnosed Z with
PTSD, TBIs, sleep apnea, night terrors, tinnitus, hearing loss, and vision problems. See id. ¶ 7.
Pregent concluded that AQI committed both attacks. See Pregent Rep. at 25–26. Both
took place in areas where the Quds Force provided lethal aid to AQI to target Americans, and
where AQI maintained a “stronghold.” See id.; see also Hr’g Tr. at 64. Pregent noted that AQI
felt free to operate in this area, and U.S. intelligence had reports of high-value targets, weapons
caches, and safe houses for AQI. See Hr’g Tr. at 65. And Pregent explained that the attack was
a “sustained 30-minute ambush where the two-man cell is using effective fires, meaning they’re
accurate.” Hr’g Tr. at 65. More, the terrorists displayed tactics “where one man moves and the
other man lays down suppressive fire,” which reveal a level of training. See id. As for the RPGs
used in the second attack, Pregent explained that these are “highly sought-after weapons
system[s].” Id. at 66. And if the RPG attacks were accurate, that “denotes proficiency” and
indicates that the terrorist was “trained on it.” Id. Pregent also submitted SIGACT entries
corroborating some facts about these two attacks. See Exs. 120, 121, ECF Nos. 100-7, 100-8.
Attack #10: Plaintiff AA is a U.S. citizen who formerly served in the U.S. Army National
Guard. See Decl. of AA ¶ 1, ECF No. 45-14. In July 2004, AA was conducting a route-clearing
mission in Baqubah, Iraq, when his vehicle was struck by an IED. See Pregent Rep. at 26. AA
suffered vision loss and a TBI in the attack, and doctors later diagnosed him with PTSD. Id. ¶ 6.
Pregent attributed this attack to AQI based on the weaponry and the fact that AQI had primacy in
the region. See Pregent Rep. at 26–27; see also Hr’g Tr. at 77–79. He explained the degree of
21
training and knowledge necessary to deploy IEDs accurately, and he noted that AQI consistently
used IEDs in this area based on the SIGACTs he reviewed. See Hr’g Tr. at 79–80.
Attack #12: Plaintiffs T, S, U, and V—injured in Attack #11—were again injured in May
2007 by an IED outside of Tal Afar. See Decl. of T ¶ 7; Decl. of S ¶ 7; Decl. of U ¶ 7; Decl. of
V ¶ 7. This attack exacerbated the injuries these soldiers previously incurred. See, e.g., Decl. of
T ¶¶ 10, 12. Pregent attributed this attack to AQI based on the weaponry and the location. See
Pregent Rep. at 27. Pregent testified that AQI was dominant in the area where the attack
occurred and that the IED was AQI’s most effective weapon. See Hr’g Tr. at 111. Pregent
explained that when this attack occurred, the U.S. military’s biggest concern was stopping
foreign fighters from entering Iraq from Syria, which the Quds Force and Hezbollah facilitated.
See id. at 112. But Pregent did not identify a SIGACT entry for this particular attack. He
explained that sometimes it is tough to find a SIGACT because of lack of documentation or a
soldier’s lack of specificity about when an attack occurred. See id. at 97–98. So Pregent
analyzed all of the SIGACT reports of attacks in that area around the same time to study what
groups were responsible. See id. And Pregent found that many SIGACT entries in this area
involved AQI attacking with IEDs, which further supported his attribution. See id. at 112–13.
Attack #13: Plaintiff BB is a U.S. citizen who served in the U.S. Army. See Decl. of BB
¶ 1. He was driving a military vehicle near Baqubah in November 2006 when two RPGs struck
it. See id. ¶ 5. He was diagnosed with, and continues to suffer from, TBIs, pulmonary problems,
PTSD, sleep apnea, and tinnitus. See id. ¶ 9. Pregent attributed this attack to AQI based on the
weaponry and the area. See Pregent Rep. at 28. Pregent explained that Baqubah had strategic
value to Iran at the time. See Hr’g Tr. at 92. Iran wanted AQI “to be the dominant force” there
while AQI worked to infiltrate the Iraqi security forces and government. See id. at 92–93.
22
Pregent did not submit a SIGACT entry for this attack. But following the same methodology as
for Attack #12, he found other SIGACT entries for AQI-led RPG attacks in this area, which
bolstered his attribution. See id. at 94–95; see also id. at 99. 7
Attack #14: Plaintiff M—also injured in Attack #1—was targeted by terrorists a second
time in September 2004. He was part of a team conducting route reconnaissance to clear a main
supply route. See Decl. of M ¶ 19. The driver of M’s vehicle thought he saw an IED and tried to
maneuver around it, but in the process he triggered another IED. See id. ¶¶ 23–24. M suffered a
concussion, TBIs, and injuries to both legs and his back. See id. ¶ 33. He continues to deal with
sleep apnea, PTSD, Hashimoto’s thyroiditis, urinary hesitancy, hypogonadism, and erectile
dysfunction. See id. Pregent attributed this attack to AQI based on the location and the
weaponry involved. See Pregent Rep. at 28–29; see also Hr’g Tr. at 80. He also explained that
M’s particular unit focused on destroying AQI’s IED cells because this was AQI’s most effective
tactic in the region to injure American troops. See Hr’g Tr. at 80.
Attacks #19 and 20: Plaintiff CC is a U.S. citizen who served in the U.S. Army. See
Suppl. Decl. of CC ¶ 1, ECF No. 98-1. In June 2003, CC was driving an armored vehicle near
Kirkuk working to disrupt Iran’s lethal aid supply routes into Iraq. See Suppl. Expert Rep. of
Michael Pregent (Pregent Suppl. Rep.) at 1–2, ECF No. 97-1. Suddenly, the vehicle in front of
him triggered an IED. See Suppl. Decl. of CC ¶ 5. CC suffered blast injuries and a TBI from
that attack. See id. ¶ 5. About two months later, CC was driving along the same route working
to uncover Iranian weapons caches when his vehicle struck another IED. See id. ¶ 6; see also
7
BB also claimed he was injured in another attack in January or February 2007 involving a
chlorine bomb. See Decl. of BB ¶ 7; Compl. ¶ 380. But because Pregent determined that attack
did not happen, the Court finds no liability for it. See Hr’g Tr. at 18; Pregent Rep. at 28.
23
Pregent Suppl. Rep. at 2. CC suffered more blast injuries and another TBI. Id. Doctors also
diagnosed him with hearing loss, tinnitus, and PTSD. See id. ¶ 7.
Pregent attributed these attacks to AQI based on the weaponry and location. See Pregent
Rep. at 31; Pregent Suppl. Rep. at 2–4. Pregent testified that the attacks involving CC occurred
when Iran was providing foreign fighters and filling weapons caches to aid AQI. See Hr’g Tr. at
46. More, the attacks occurred in an area where AQI had control. See id. And he explained that
the IED was an “advanced technique” that Iran trained AQI to emplace and trigger. See id. at
49–50.
Attack #21: Plaintiff DD is a U.S. citizen who served in the U.S. Army. See Decl. of DD
¶ 1, ECF No. 45-33. In June 2004, he was traveling in a convoy near the Abu-Ghraib District of
Iraq, when an IED exploded nearby. See id. ¶ 6. Shrapnel imbedded into his left hand, and DD
incurred a severe concussion and a TBI. See id. Doctors also diagnosed him with PTSD and
bipolar disorder. See id. ¶ 7. Pregent concluded that AQI was responsible for this attack. See
Pregent Rep. at 33. He explained that the attack occurred in an area west of Baghdad where “all
the foreign fighters were flowing . . . through this corridor from the Syrian border.” Hr’g Tr. at
60. The increase in foreign fighters and weapons caches in the area helped make AQI more
lethal. See id. at 59–61. And Pregent again explained how Iran trained AQI on how to place
IEDs. See id. at 62.
Attack #22: Plaintiff EE is a U.S. citizen who served in the U.S. Marine Corps. See
Decl. of EE ¶ 1, ECF No. 45-34. He was leading a three-vehicle security patrol in Anbar
Province, Iraq, in February 2007 when terrorists targeted his vehicle with an RPG. Id. ¶¶ 5, 8–
10. Shrapnel hit him in his left cheek and wrist, causing lacerations. See id. ¶¶ 10–11. Because
of the attacks, EE was diagnosed with—and still suffers from—PTSD and temporomandibular
24
joint disorder. See id. ¶ 18. Pregent attributes this attack to AQI based on its primacy in the
region and the weapons system. See Pregent Rep. at 33–34; see also Hr’g Tr. at 109. Pregent
testified that Anbar was the most dangerous province in Iraq at the time because it was an AQI
safe haven. See Hr’g Tr. at 109–10. He also explained that he reviewed many SIGACTs in this
area where AQI perpetrated similar attacks. See id. at 110. And he submits a SIGACT for this
particular attack that corroborates some of EE’s allegations. See Ex. 122, ECF No. 100-9.
Attack #23: Plaintiff FF is a U.S. citizen who served in the U.S. Marine Corps. See Decl.
of FF ¶ 1, ECF No. 45. In March 2011, he was participating in a mission to clear a hill of IEDs
in Kajaki District, Afghanistan, when the Marine in front of him stepped on a pressure plate,
triggering an IED. See id. ¶¶ 7–12. As FF rushed to the other Marine’s aid, he stepped on
another pressure plate, triggering an IED explosion that led to the amputation of his legs. See id.
¶ 13. Medical professionals later diagnosed FF with a TBI, back pain, tinnitus, hearing loss, and
PTSD. See id. ¶ 17. Pregent concluded that that the Taliban—whom Iran trained and equipped
with lethal aid—committed this attack. See Pregent Rep. at 36. Pregent noted that the “Taliban
operates with impunity” in the area where the attack occurred. Hr’g Tr. at 140. He explained
that his attribution rested on the location of the attack and the weapon used, an IED. See id. at
141.
Attack #24: Plaintiff Y—who was also injured in Attacks #5 and 6—was injured in July
2013 near Puli Alam, Afghanistan. See Decl. of Y ¶ 9. He was attacked by individuals armed
with rockets. See id. The blast from the rockets knocked Y off his feet and killed two of his
comrades. See id. He suffered blast injuries and a TBI, which contributed to his PTSD, anxiety,
and night terrors. See id. ¶ 10. Pregent attributed this attack to Taliban fighters trained and
supplied by the Quds Force based on the location and the type of weapon. See Pregent Rep. at
25
36. Pregent noted that the Quds force “specifically trained the Taliban fighters on [rocket
attacks] to use against American forces.” Hr’g Tr. at 145. And training was necessary to ensure
that the rocket injured its target. See id. More, Pregent explained that the Taliban was operating
freely in the area of the attack. See id.
Attack #25: Plaintiff GG is a U.S. citizen who served in the U.S. Army. See Decl. of GG
¶ 1, ECF No. 45-13. During a yearlong deployment from 2007 to 2008, he worked within the
Kunar and Nuristan Provinces to secure the terrain, train Afghan locals in military and defense
tactics, and provide security to Afghan locals and contractors repairing roads. See id. ¶ 6.
During his yearlong deployment, various individuals armed with RPGs, rockets, mortars, and
small arms attacked him. See id. Doctors later diagnosed him with PTSD, hearing loss, tinnitus,
and injuries to his back from cumulative trauma—though not from any particular attack. Id. ¶ 8.
Pregent attributed these attacks to Taliban fighters trained and supplied by the Quds Force based
on their primacy in the area. See Pregent Rep. at 36
Attack #26: GG was back in Afghanistan in November 2012, this time serving in
Kandahar. See Decl. of GG ¶ 7. His unit was charged with clearing a dry riverbed when an IED
struck his vehicle. See id. GG was standing in the gun turret and sustained a TBI from the
attack. See id. This attack also contributed to his PTSD, hearing loss, tinnitus, and back injuries.
See id. ¶¶ 8, 10. Pregent concluded that the Taliban committed this attack based on the
weaponry and its location. See Pregent Rep. at 37. Pregent explained that this attack occurred at
a time when the Taliban was regaining territory in Afghanistan and in an area where they
operated with impunity. See Hr’g Tr. at 144. And, as Pregent noted elsewhere, the IED used
was a sophisticated weapons system that required training to use. See, e.g., id. at 50–51, 76, 151.
III. LEGAL STANDARDS
26
Under Federal Rule of Civil Procedure 55(b)(2), the Court may enter default judgment
when a party applies for it. But the entry of a default judgment “is not automatic.” Mwani v. Bin
Laden, 417 F.3d 1, 6 (D.C. Cir. 2005). The Court has an “affirmative obligation” to determine
whether it has subject matter jurisdiction over the matter. Hecht v. Ludwig, 82 F.3d 1085, 1092
(D.C. Cir. 1996). A court must also “satisfy itself that it has personal jurisdiction before entering
judgment against an absent defendant,” but “[i]n the absence of an evidentiary hearing, although
the plaintiffs retain the burden of proving personal jurisdiction, they can satisfy that burden with
a prima facie showing.” Mwani, 417 F.3d at 6–7 (cleaned up).
Special procedures govern entry of default when the defendant is a sovereign state.
Federal district courts “have original jurisdiction” over “any nonjury civil action against a
foreign state” asserting “any claim for relief in personam with respect to which the foreign state
is not entitled to immunity” under the FSIA. 28 U.S.C. § 1330(a). “The Foreign Sovereign
Immunities Act . . . affords the sole basis for obtaining jurisdiction over a foreign state in United
States courts.” Mohammadi, 782 F.3d at 13. “While the FSIA establishes a general rule granting
foreign sovereigns immunity from the jurisdiction of United States courts . . . that grant of
immunity is subject to a number of exceptions.” Id. at 13–14.
The exception relevant here is the so-called terrorism exception found in 28 U.S.C.
§ 1605A. Section 1605A confers subject matter jurisdiction, recognizes a federal cause of action
against foreign states subject to the exception, and addresses personal jurisdiction by specifying
procedures that a plaintiff must follow to effect service on a foreign state. See 28 U.S.C. § 1608.
Different standards of proof govern the Court’s personal jurisdiction and subject matter
jurisdiction inquiries. Plaintiffs need only make a “prima facie showing” of personal
jurisdiction. Mwani, 417 F.3d at 6–7. But for the Court to exercise subject matter jurisdiction,
27
Plaintiffs need to “establish[] [their] claim or right to relief by evidence satisfactory to the court.”
28 U.S.C. § 1608(e). The statute does not specify what constitutes “evidence satisfactory to the
court,” and the D.C. Circuit has left it to courts to determine “how much and what kinds of
evidence the plaintiff must provide.” Han Kim v. Democratic People’s Repub. of Korea, 774
F.3d 1044, 1046–51 (D.C. Cir. 2014). “[C]ourts have the authority—indeed . . . the obligation—
to adjust evidentiary requirements to . . . differing situations.” Id. at 1048 (cleaned up). The
evidence must consist of “admissible testimony in accordance with the Federal Rules of
Evidence,” id. at 1049 (cleaned up), and it must be sufficient for the court to come to the “logical
conclusion” that the defendant is responsible for the plaintiffs’ injuries, id. at 1051.
IV. ANALYSIS
First, the Court will determine whether it has subject matter jurisdiction. This analysis
considers whether Plaintiffs have carried their burden of producing evidence sufficient to show
that their claims fall within the state-sponsored terrorism exception to the FSIA. Second, the
Court considers whether it has personal jurisdiction over Iran. Third, the Court evaluates
whether Plaintiffs have pled a federal cause of action and proven a theory or theories of liability.
A. Subject Matter Jurisdiction
“FSIA begins with a presumption of immunity” under 28 U.S.C. § 1330(a). Bell
Helicopter Textron, Inc. v. Islamic Repub. of Iran, 734 F.3d 1175, 1183 (D.C. Cir. 2013). So to
establish subject matter jurisdiction, Plaintiffs bear “the initial burden to overcome [that
presumption] by producing evidence that an exception applies.” Id. Once Plaintiffs make this
showing, “the sovereign bears the ultimate burden of persuasion to show the exception does not
apply.” Id.28
To invoke the terrorism exception to sovereign immunity in 28 U.S.C. § 1605A,
Plaintiffs must make two threshold showings. First, the claimant or victim must be a U.S.
national, a member of the U.S. armed forces, or a U.S. government employee or contractor when
the act of terrorism occurred. See 28 U.S.C. § 1605A(a)(2)(A)(ii). Plaintiffs here easily meet
this requirement because all are U.S. citizens. See Compl. ¶¶ 67–384.
Second, the State Department must have designated the foreign government as a state
sponsor of terrorism at the time of the attack and when Plaintiffs filed their lawsuit. See 28
U.S.C. § 1605A(a)(2)(A)(ii). Plaintiffs meet this requirement because the U.S. State Department
has designated Iran as a State Sponsor of Terrorism since 1984. Compl. ¶ 2. 8
Plaintiffs who overcome these threshold showings must then show that their claims fit
within the narrow waiver of sovereign immunity in 28 U.S.C. § 1605A(a)(1). That waiver
contains five requirements:
[1] money damages are sought against a foreign state [2] for personal injury
or death [3] that was caused by [4] an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of material support or
resources for such an act if such act or provision of material support or
resources is [5] engaged in by an official, employee, or agent of such foreign
state while acting within the scope of his or her office, employment, or
agency.
28 U.S.C. § 1605A(a)(1). The Complaint establishes the first two requirements: Plaintiffs seek
money damages, see Compl. ¶ 389, for the injuries to themselves or their family members, see
id. ¶ 385–93. The Court’s analysis thus focuses on the latter three requirements, although in a
different order.
8
See also State Sponsors of Terrorism, U.S. Dep’t of State, https://www.state.gov/state-
sponsors-of-terrorism (last accessed December 5, 2022).
29
1. Iran Provided “Material Support” to Terrorist Groups
Recall the resources that Iran provided to its proxies. Plaintiffs and their expert have
sufficiently alleged that senior officials in Iran and its Quds Force supported Hezbollah; Shia
Special Groups, including AAH and KH; the Taliban; and al-Qaeda. See supra II.A–C. Iran
provided these groups with training, weapons, soldiers, safe haven and smooth passage, and
more. See id. More, Pregent described various high-level meetings between the leaders of these
terrorist groups and Iranian military officials. See id. Plaintiffs have thus provided ample
evidence “satisfactory to the court,” 28 U.S.C. § 1608(e), that Iran materially supported the
terrorist groups and that this support came from an “agent of such foreign state while acting
within the scope of his or her office, employment, or agency,” id. § 1605A(a)(1).
2. Iran Provided Material Support “For” Extrajudicial Killings
Another requirement of the sovereign immunity waiver is that the nation provide material
support for extrajudicial killings. See 28 U.S.C. § 1605A(a)(1). “Extrajudicial killing” has the
same meaning as in Section 3 of the Torture Victim Protection Act (TVPA) of 1991. See 28
U.S.C. § 1605A(h)(7). The TVPA defines an extrajudicial killing as “a deliberated killing not
authorized by a previous judgment pronounced by a regularly constituted court affording all the
judicial guarantees which are recognized as indispensable by civilized peoples.” 28 U.S.C.
§ 1350 note. “[T]his definition contains three elements: (1) a killing; (2) that is deliberated; and
(3) is not authorized by a previous judgment pronounced by a regularly constituted court.”
Owens, 864 F.3d at 770.
Start with the first element, “a killing.” Plaintiffs admit that only some attacks were fatal.
See Pls.’ Mem. at 24. They argue their claims qualify anyway because courts in this district have
found that the term “extrajudicial killing” encompasses “‘deliberated’ attempts to kill.” Id.
30
(quoting Karcher, 396 F. Supp. 3d at 58). But the word “killing” implies to any speaker of
English that an action ended someone’s life. See Killing, Black’s Law Dictionary (11th ed.
2019) (“The act of causing the end of an animate thing’s life.”). Other courts agree. In Owens,
the D.C. Circuit found that bombings of American embassies constituted killings because they
“caused the death of more than 200 people in Kenya and Tanzania.” 864 F.3d at 770. The
Eleventh Circuit likewise reads the TVPA to require, “at a minimum,” some act “that takes
another’s life.” Mamani v. Sanchez Bustamante, 968 F.3d 1216, 1233 (11th Cir. 2020). Thus, an
attack cannot be a “killing,” much less an extrajudicial one, if nobody dies.
That said, the FSIA waives sovereign immunity for injuries caused by “material support
for” an extrajudicial killing if an official of the foreign state acting within the scope of his office
provided that support. 28 U.S.C. § 1605A(a)(1) (emphasis added). “The word ‘for’ matters.”
Borochov v. Islamic Repub. of Iran, 589 F. Supp. 3d 15, 32 (D.D.C. 2022). As this Court
explained in Borochov, the word “for” in § 1605A(a)(1) “indicate[s] the object or purpose of an
action or activity.” Id. (quoting Am. Heritage Dictionary 329 (3d ed. 1994)). Thus, a foreign
state’s support with the object or purpose of an extrajudicial killing constitutes support “for such
an act” under the statute. Id.; accord Force v. Islamic Repub. of Iran, 464 F. Supp. 3d 323, 360–
61 (D.D.C. 2020). And support with that intention or objective can therefore cause an injury,
even if an attack carried out with that support does not cause a killing. See Borochov, 589 F.
Supp. 3d at 32. This interpretation faithfully considers Congress’s inclusion of “for” in the
statute and abides by the D.C. Circuit’s guidance to “interpret [the FSIA’s] ambiguities flexibly
and capaciously.” Van Beneden v. Al-Sanusi, 709 F.3d 1165, 1167 (D.C. Cir. 2013).
Plaintiffs have thoroughly alleged that Iran provided material support to proxy groups in
Iraq and Afghanistan to cause killings. See supra II.A–C. Pregent explained that Iran trained
31
various proxy groups for years before unleashing them on U.S. forces. See, e.g., Pregent Rep. at
6–15; see also Hr’g Tr. at 26–28. For example, Iran trained al-Zarqawi, who eventually founded
AQI with the mission of killing Americans in Iraq. See Hr’g Tr. at 26–27. During these
trainings, Iran taught particular tactics designed to cause great harm, such as ambushes, mortars,
rockets, and IED emplacement. See, e.g., Pregent Rep. at 15; Hr’g Tr. at 27–28. And after
unleashing al-Zarqawi, Iran released Sunni jihadists from prison and sent them into Iraq to kill
Americans. See id. at 26. Pregent—who was in Iraq around the same time—explained the shift
in enemy capabilities. He testified that U.S. forces
started seeing this capable combatant come into Iraq . . . [who] had received
training. This wasn’t the ISIS wave where you simply had volunteers wanting to
martyr themselves and kill an American. These were individuals that learned how
to . . . build an IED, that were snipers, that knew how to build a car bomb, that knew
how to conduct a terrorist cell. They had accurate fires when it came to mortars
[and] rockets.
Id. at 35–36 (cleaned up).
On top of training and troops, Iran provided weapons to its proxies. See, e.g., Pregent
Rep. at 13. Iran used specific smuggling routes to get these weapons into Iraq and Afghanistan,
and several attacks targeting Plaintiffs occurred along these routes. See Hr’g Tr. at 37–38.
These weapons included small arms, ammunition, RPGs, IEDs, mortars, and more. See, e.g.,
Pregent Rep. at 13. When the U.S. military increased the armor surrounding its vehicles to
counter IEDs, Iran innovated. See Hr’g Tr. at 47–48. Iran introduced the extremely lethal EFP,
which could puncture the strongest armor America could make for its vehicles. See id. at 48.
Iran gave these EFPs to its proxies and trained them on emplacement to ensure maximum U.S.
casualties. See id.
In short, Iran’s proxies launched the attacks in which Plaintiffs were injured with intent to
kill and with material support—including training, soldiers, and weapons—from Iran. None of
32
the attacks injuring Plaintiffs were sanctioned by applicable law. See 28 U.S.C. 1350 note.
Thus, Iran gave material support for an extrajudicial killing.
3. Causation
Plaintiffs must show that the attacks were “caused by” Iran’s material support to terrorist
groups. Mark v. Islamic Repub. of Iran, No. 20-cv-00651, 2022 WL 4103854, at *6 (D.D.C.
Sept. 8, 2022). But they need not establish a close nexus between Iran’s support and the attacks,
because financial support and material aid are fungible. See Kilburn v. Socialist People’s Libyan
Arab Jamahiriya, 376 F.3d 1123, 1130 (D.C. Cir. 2004). Plaintiffs must show proximate cause.
Selig, 573 F. Supp. 3d at 61.
“Proximate cause requires some reasonable connection between the act or omission of the
defendant and the damage which the plaintiff has suffered.” Owens, 864 F.3d at 794. To
establish a “reasonable connection,” Plaintiffs must show both that “the defendant’s actions
[were] a substantial factor in the sequence of events that led to [their] injury” and that their injury
“must have been reasonably foreseeable or anticipated as a natural consequence of the
defendant’s conduct.” Id. (cleaned up). In explaining its findings about causation, the Court
mirrors the same structure as in its findings of fact: it begins with the “complex” attacks, then
discusses the EFP attacks, and finally turns to the IED, RPG, and small arms attacks.
The “complex attacks”: Recall that several attacks involved multiple weapons systems,
were sustained over a long time, and required great advanced planning—leading Pregent to label
them as “complex.” See supra II.D.1 (discussing Attacks #1, 3, 15, and 16). Attack #1 involved
terrorists attacking a vehicle convoy in an area with “machine gun rounds, RPGs, and a daisy
chain of IEDs.” See Hr’g Tr. at 73–74. And the IEDs were “spread out so they hit at different
points of the convoy” allowing them to “basically annihilate three to five vehicles based on their
33
distance.” Id. at 73. Pregent testified that this attack was also an “ambush” because terrorists
would have developed intelligence about U.S. troop movement to carry it out successfully. See
id. at 74. Similarly, Pregent classified Attacks #3, 15, and 16 as “complex attacks” based on how
long terrorists sustained them and the multiple weapons systems involved. See Hr’g Tr. at 100–
05, 122–23; Pregent Rep. at 23, 29–30.
Pregent thoroughly explained how Iran provided the training and weaponry to its proxies
necessary to carry out these complex attacks. See supra II.A–C. Pregent also noted that Attacks
#1, 15, and 16 were so sophisticated that only AQI could have carried them out at the time
because other militias were not yet operating with this level of strategy, accuracy, or
coordination. See Hr’g Tr. at 74–76; 104–05. And Pregent explained that he could attribute
Attack #3 to AAH based on the complex tactic, location, and timeframe. See id. at 122–23.
The Court is persuaded that Iran’s support of AQI and AAH was a “substantial factor” in
Attacks #1, 3, 15, and 16 and that the consequences of its support were “reasonably foreseeable.”
Owens, 864 F.3d at 794. Plaintiffs have therefore shown proximate cause for these attacks.
Accord Est. of Doe v. Islamic Repub. of Iran, 808 F. Supp. 2d 1, 8–9 (D.D.C. 2011) (reasoning
that the complexity of the attack, including the weapon and planning involved, revealed Iran’s
involvement).
The EFP attacks: Recall that several attacks involved EFPs, a signature weapon of Iran
identifiable by its copper plating. See supra II.D.2 (discussing Attacks #2, 4, 11, 17, and 18).
Courts in this district have found proximate cause satisfied when EFPs were recovered at the
scene because they could not have been produced without Iranian expertise and there is evidence
that Iran was providing them to its proxies. See, e.g., Karcher, 396 F. Supp. 3d at 26–29. More,
the speed with which various militia groups deployed EFPs as countermeasures to U.S. forces
34
increasing the armor on their vehicles suggested centralized Iranian direction. See id. at 29.
Indeed, Pregent testified that Iran trained its proxies on how to effectively plant and deploy
EFPs. See, e.g., Hr’g Tr. at 28; see also Karcher, 396 F. Supp. 3d at 29. The Court is persuaded
that Iran’s support was a “substantial factor” in the EFP attacks and that the consequences of its
support were “reasonably foreseeable.” Owens, 864 F.3d at 794. Thus, Plaintiffs demonstrate
that Iran was responsible for the EFP attacks. Accord Karcher, 396 F. Supp. 3d at 30
(“[I]dentification of the weapon as an EFP all but necessitates the inference that Iran was
responsible.”).
The IED, RPG, and small arms fire attacks: Typically in FSIA cases brought in this
district, courts have before them complex attacks such as Attack #1, see, e.g., Est. of Doe, 808 F.
Supp. 2d at 8–9, signature weapons such as EFPs, see, e.g., Karcher, 396 F. Supp. 3d at 26–30, a
terrorist group publicly claiming responsibility for the attack, 9 see, e.g., Force, 464 F. Supp. 3d
at 339, or a nation celebrating its support of the group that led the attack, see, e.g., Borochov, 589
F. Supp. 3d at 33.
The Court lacks any comparable evidence for the IED, RPG, and small arms fire attacks
that injured some Plaintiffs here. So the Court pressed Pregent at an evidentiary hearing as to
9
Pregent acknowledged that terrorist groups tend to claim responsibility publicly and proudly
for attacks against Americans. See Hr’g Tr. at 148. And he conceded that even when a lone
wolf commits an attack, terrorist groups sometimes take credit for it. See id. at 149. None did so
here for any of the IED, RPG, or small arms attacks. See id. at 148–149; see generally Pregent
Rep. But Pregent explained that simply because Iranian proxies did not take responsibility for
these attacks does not defeat causation. See Hr’g Tr. at 149–50. This is so because Shia militias
like AQI like to claim responsibility for attacks when they had video evidence of them. See id.
The groups could then post videos to social media promoting their group and insert “Allahu
Akbar” after the killing or injuring of American soldiers. See id. at 150. Perhaps because these
attacks were not caught on film, Iran’s proxies did not publicly claim responsibility for them.
See id. at 148–50.
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how it could find Iran liable for attacks involving isolated IEDs, RPGs, and small arms fire. The
Court now finds that Plaintiffs have met their burden to demonstrate causation for all but Attack
#25, which is really a series of disparate attacks over the course of a yearlong deployment that
lacks a signature weapon. See supra II.D.3.
First, the IED attacks. See supra II.D.3 (discussing Attacks #5, 6, 7, 10, 12, 14, 19, 20,
21, 23, and 26). Pregent explained that IEDs are themselves sophisticated weapons systems that
a rogue terrorist could not deploy on his own without training. See Hr’g Tr. at 50–51, 151.
Pregent explained that to successfully deploy an IED, proxy groups had to be trained on how to
emplace and trigger them (either through command or passive detonation). See id. at 50, 151.
As Pregent noted, the AQI manual and training camps taught proxy groups how to operate such
weapons. See id. at 51, 151; see also Ex. 112 (AQI manual), ECF No. 97-2. More, he discussed
how various terrorist militias needed to amass intelligence about U.S. routes to place IEDs where
they were likely to inflict casualties on American troops, rather than on the terrorists or their
sympathizers. See Hr’g Tr. at 51. Pregent explained that the group to which he attributed each
attack had primacy in the relevant region at the time the attack occurred. See supra II.D.3. And
for some he analyzed other SIGACTs in the region where similar attacks occurred to see which
group was committing most of the destruction in an area. See id.
Based on Pregent’s report and testimony at the hearing—which showed careful study of
the servicemen’s declarations, areas where the attacks took place, SIGACTs in the region, and
more—the Court is satisfied that Iran’s support was a “substantial factor” in the IED attacks and
that the consequences of its support were “reasonably foreseeable.” Owens, 864 F.3d at 794;
accord Fissler v. Islamic Repub. of Iran, No. 18-cv-3122, 2022 WL 4464873, at *1, 3 (D.D.C.
Sept. 26, 2022) (finding Iran liable for IED attacks in light of Iran’s arms transfers, training
36
programs, and signature tactic of burying IEDs in the ground); Neiberger v. Islamic Repub. of
Iran, No. 16-cv-2193, 2022 WL 17370239, at *4 (D.D.C. Sept. 8, 2022) (report and
recommendation finding Iran liable for an IED attack in Sadr City), adopted by 2022 WL
17370160 (D.D.C. Sept. 30, 2022).
Second, the RPG attacks, some of which also involved small arms fire. See supra II.D.3
(discussing Attacks #8, 9, 13, 22, 24, and 25). Pregent noted that RPGs are a “highly sought-
after weapons system” for militias and AQI. See Hr’g Tr. at 66. If a terrorist has an RPG, it was
likely found in a weapons cache stocked by Iran. See id. at 67. And Pregent explained that like
EFPs and IEDs, RPGs also require specific training to use. See id. at 66–68. In other words, if a
terrorist group deployed an RPG accurately, “it means [they have] been trained on it.” Id. at 66.
More, Pregent explained that the basis for his attribution did not hinge on the use of an RPG
alone. He also looked to which group controlled the region where and when the attack occurred.
See Hr’g Tr. at 67–68; see also supra II.D.3. Pregent concluded that all of the relevant
controlling groups in the regions where the attacks took place were also supported by Iran
through training or direct provisions of weapons or soldiers. See supra II.A–C, II.D.3.
Based on Pregent’s report and testimony at the hearing—which displayed careful study of
the servicemen’s declarations, who controlled the territory where the attack took place,
SIGACTs in the region, and more—the Court is satisfied that Iran’s support was a “substantial
factor” in the RPG and small arms attacks other than #25 and that the consequences of its
support were “reasonably foreseeable.” Owens, 864 F.3d at 794; accord Stearns v. Islamic
Repub. of Iran, No. 1:17-cv-131, 2022 WL 4764905, at *44, 53 (D.D.C. Oct. 3, 2022) (finding
Iran liable for small arms and rocket attacks).
37
But the Court does not have enough information to find liability for Attack #25, which is
really disparate attacks over a yearlong period. See Decl. of GG ¶ 6. Recall that Plaintiff GG
served in the Kunar and Nuristan Provinces to secure the terrain, train Afghan locals in military
and defense tactics, and provide security to Afghan locals and contractors repairing roads from
August 2007 to August 2008. See id. During his deployment in these provinces, he claims that
various individuals armed with RPGs, rockets, mortars, and small arms attacked him. See id.But he does not specify even the approximate months or locations where these attacks occurred.
Nor does he tie them to a particular mission against AQI or another Iran-affiliated group as other
soldiers have. See, e.g., Decl. of AA ¶ 5; see also Pregent Rep. at 26 (soldier was on a route-
clearing mission when an IED exploded and injured him). And he does not reference a signature
weapon such as an EFP. Overall, the evidence for Attack #25 is more general than the rest of
Plaintiffs’ evidence (indeed, even GG’s own evidence for Attack #26, during which he was also
injured).
Consider Attack #17, which also provides few details. But Plaintiff W specifies a city
(Mosul) and provides a three-month period when multiple bomb detonations injured him. See
Decl. of W ¶ 5; Pregent Rep. at 30. And W explains that he was injured by an EFP. See Decl. of
W ¶ 5. Though both W and GG claim multiple attacks over a period of time, W provides the
Court with more evidence of Iran’s involvement. W barely provides enough information to
sustain a default judgment; GG does not.
True, Pregent attributed the attacks against GG to Taliban fighters trained and supplied
by the Quds Force based on their primacy in the area. See Pregent Rep. at 36; Hr’g Tr. at 132–
33. But he acknowledged that he could not search for SIGACT reports or other information
about these attacks given the yearlong period. See Hr’g Tr. at 137–38. Pregent conceded that
38
“ideally” he wants “the perfect date/time group and location” when making an attribution to a
particular terrorist group. Id. at 138. And Plaintiffs’ counsel similarly conceded at a second
evidentiary hearing that he understands the Court’s concern about finding liability for disparate
acts over a yearlong period in the absence of a signature weapon. See Tr. of Second Evidentiary
Hr’g at 25. But he did not provide more evidence. See id. The Court in no way diminishes the
adversities that GG faced during his yearlong deployment nor questions the debt this Nation
owes him for his service. But without more specific information, the Court cannot find that he
has met his burden on causation for Attack #25, even in the default judgment posture. Accord
Lee, 518 F. Supp. 3d at 488 (declining to grant default judgment to two plaintiffs because of
insufficient evidence).
B. Personal Jurisdiction
Next up is personal jurisdiction. Personal jurisdiction over a foreign state exists
whenever a court has subject matter jurisdiction and a plaintiff has effected service as required in
28 U.S.C. § 1608. See 28 U.S.C. § 1330(b).
Section 1608 “provides four methods of service in descending order of preference.”
Barot v. Emb. of the Repub. of Zambia, 785 F.3d 26, 27 (D.C. Cir. 2015). The first is “by
delivery of a copy of the summons and complaint in accordance with any special arrangement
for service between the plaintiff and the foreign state or political subdivision.” 28 U.S.C.
§ 1608(a)(1). The second is “by delivery of a copy of the summons and complaint in accordance
with an applicable international convention on service of judicial documents.” Id. § 1608(a)(2).
Next, a plaintiff can effect service “by sending a copy of the summons and complaint and a
notice of suit . . . by any form of mail requiring a signed receipt, to be addressed and dispatched
by the clerk of the court to the head of the ministry of foreign affairs of the foreign state
39
concerned.” Id. § 1608(a)(3). And finally, if none of the first three methods works, a plaintiff
can serve the documents through the Department of State. See id. § 1608(a)(4).
The first two methods for serving were unavailable to Plaintiffs. No special arrangement
governs service of process between the United States and Iran, and Iran is not party to an
international convention on service of judicial documents. See Borochov, 589 F. Supp. 3d at 34.
Plaintiffs therefore tried to serve under § 1608(a)(3) by requesting the Clerk of the Court to mail
the summonses and Complaint to Iran via the Postal Service. See Cert. of Mailing, ECF No. 17.
Iran did not appear or otherwise acknowledge receipt, so Plaintiffs asked the Clerk of the Court
to effect service through the U.S. Department of State. See Aff. Requesting Foreign Mailing,
ECF No. 33-1 at 3. The State Department served Iran in October 2020 through diplomatic
channels. See Letter from the Clerk of the Court (Oct. 28, 2020), ECF No. 37. This was
sufficient. Selig, 573 F. Supp. 3d at 62.
Because the Court has subject matter jurisdiction and Plaintiffs properly served Iran, the
Court has personal jurisdiction over it.
C. Plaintiffs Have Properly Alleged Causes of Action
The FSIA provides plaintiffs with a private cause of action. See 28 U.S.C. § 1605A(c).
This cause of action holds foreign state sponsors of terrorism and their employees or agents
liable for “personal injury or death” to nationals of the United States. Id. “This cause of action
is available to Plaintiffs because they are nationals of the United States and, given the overlap
between the elements of this cause of action and the terrorism exception to foreign sovereign
immunity,” the availability of this claim has already been determined by the Court’s subject
matter jurisdiction analysis. See Foley v. Syrian Arab Repub., 249 F. Supp. 3d 186, 205 (D.D.C.
2017).
40
Though the FSIA provides a private cause of action, it does not “provide the substantive
basis for plaintiffs’ claims.” Ewan v. Islamic Repub. of Iran, 466 F. Supp. 3d 236, 245 (D.D.C.
2020). Plaintiffs need to “prove a theory of liability which justifies holding the defendants
culpable for the injuries that the plaintiffs allege to have suffered.” Oveissi v. Islamic Repub. of
Iran, 879 F. Supp. 2d 44, 53–54 (D.D.C. 2012) (cleaned up). Courts should “rely on well-
established statements of common law, found in state reporters, the Restatement of Torts, and
other respected treatises, in determining damages under § 1605A(c).” Fraenkel v. Islamic
Repub. of Iran, et al., 892 F.3d 348, 353 (D.C. Cir. 2018).
The servicemembers bring a count for injury, but they do not allege a theory of liability
for this count. See Compl. ¶¶ 385–89. Courts seldom deny a plaintiff who fails to properly
articulate a theory of liability provided the plaintiff has alleged the necessary elements for a
theory of liability. See Rimkus, 750 F. Supp. 2d at 176 (“The Court . . . will not exalt form over
substance . . . The fact that plaintiff does not expressly set forth a prototypical common law
cause of action will therefore not defeat his claim for relief.”).
Courts in this district have applied assault and battery theories of liability to attacks like
the ones in this case. Iran is liable for assault 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.’” Murphy v. Islamic Repub. of Iran,
740 F. Supp. 2d 51, 73 (D.D.C. 2010) (quoting Restatement (Second) of Torts § 21(1)). Iran
intended to cause harmful contact and apprehension of that contact because “acts of terrorism
are, by their very nature, intended to harm and to terrify by instilling fear of further harm.”
Valore v. Islamic Repub. of Iran, 700 F. Supp. 2d 52, 76 (D.D.C. 2010). The servicemembers
41
have submitted substantial documentation of the harm Iran caused them and the fear they
experienced during these attacks. The Court finds that Iran is liable for assault.
Iran is liable for battery 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].’” Murphy, 740 F. Supp. 2d at 74(quoting 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.
(quoting Restatement (Second) of Torts § 15). As has been explained, Iran intended to cause
harmful or offensive contact. And all servicemembers stated in their declarations that in at least
one of the attacks they faced they experienced harmful contact. Thus, Iran is liable for battery.
The family members bring a claim for solatium. See Compl. ¶¶ 390–93. Solatium is “the
mental anguish, bereavement and grief that those with a close personal relationship to a decedent
experience as the result of the decedent’s death, as well as the harm caused by the loss of the
decedent’s society and comfort.” Est. of Hirshfeld v. Islamic Repub. of Iran, 330 F. Supp. 3d
107, 140 (D.D.C. 2018) (cleaned up). Under the FSIA, solatium claims are indistinguishable
from claims of intentional infliction of emotional distress (IIED). See Valore, 700 F. Supp. 2d at
85. Courts have applied the Restatement (Second) of Torts to these claims. See, e.g., Abedini v.
Islamic Repub. of Iran, 422 F. Supp. 3d 118, 133 (D.D.C. 2019); Est. of Hirshfeld, 330 F. Supp.
3d at 140.
The Restatement sets out four requirements for an IIED claim: Iran must have (1)
engaged in extreme and outrageous conduct, (2) which was directed at persons other than
plaintiffs, (3) which intentionally or recklessly caused severe emotional distress, (4) to plaintiffs’
42
immediate family members who were present when such conduct occurred. See Restatement
(Second) of Torts § 46.
The family members satisfy all four requirements. They meet the first and third
requirements because “acts of terrorism are by their very definition extreme and outrageous and
intended to cause the highest degree of emotional distress.” Est. of Hirshfeld, 330 F. Supp. 3d at
141–42 (cleaned up). They meet the second requirement because the conduct was directed at the
servicemembers, not the family members. And they meet the fourth requirement because
Plaintiffs are immediate family members of the servicemembers. See Compl. ¶ 74 (X Family),
¶ 99 (A Family), ¶ 115 (C Family), ¶ 124 (D Family); ¶ 139 (F Family); ¶ 150 (G Family); ¶ 161
(H Family); ¶ 182 (J Family); ¶ 191 (K Family); ¶ 200 (L Family); ¶ 207 (N Family); ¶ 216 (M
Family); ¶ 225 (AA Family); ¶ 234 (EE Family); ¶ 277 (Y Family); ¶ 303 (O Family); ¶ 312–13
(R Family); ¶ 340 (Z Family); ¶¶ 353–54 (GG Family); ¶ 374 (Q Family). The requirement that
immediate family members be present at the time of the attack has been waived when the
attackers were terrorists. Est. of Hirshfeld, 330 F. Supp. 3d at 141 (“[A]cts of terrorism are
sufficiently extreme and outrageous to demonstrate that they are intended to inflict severe
emotional harm on even those persons who are not present during the act.”). The family
members have thus established Iran’s liability under the federal private right of action for their
solatium claims.
43
V. CONCLUSION
For these reasons, the Court will grant in part Plaintiffs’ Motion for Default Judgment.
But the Court denies the motion as to Attack #25 involving Plaintiff GG because it does not
provide enough evidence to find Iran liable.
2023.01.17
16:52:29 -05'00'
Dated: January 17, 2023 TREVOR N. McFADDEN, U.S.D.J.
44