Moradi v. Islamic Republic of Iran

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
NIK MORADI, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 13-0599 (ESH)
)
ISLAMIC REPUBLIC OF IRAN, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
Nik Moradi (“Nik”) and his wife, Deborah Moradi (“Deborah”), bring this action against
the Islamic Republic of Iran (“Iran”) under the Foreign Sovereign Immunities Act (“FSIA”), 28
U.S.C. § 1605A, seeking money damages for injuries they suffered as a result of alleged acts of
torture committed against Nik during his almost six-month detention in an Iranian prison. Iran
failed to respond to the complaint, and plaintiffs have now moved for a default judgment. (Mot.
for Default Judgment, Sept. 23, 2014 [ECF No. 18].) In order to obtain a default judgment under
the FSIA, plaintiffs must establish their claim or right to relief by evidence that is satisfactory to
the Court. See 28 U.S.C. § 1608(e). As explained herein, plaintiffs have met this standard.
Accordingly, the Court will grant the motion for default judgment.
FINDINGS OF FACT
The evidence in the record before the Court establishes the following facts.
I. BACKGROUND
Nik Moradi was born in Iran in 1950. (Decl. of Nik Moradi ¶ 1 (“N. Moradi Decl.”).) At
the age of 14 or 15, after his father had died, he came to the United States, joining an older
brother and sister. (Id. ¶ 4.) Nik became a United States citizen in 1975, and he has maintained
dual citizenship ever since. (Id. ¶ 9.) He never finished college, but he became a successful
businessman, owning and operating several clothing stores. (Id. ¶ 6.) In 1983, his mother
moved to the United States. (Id. ¶ 1.) In 1985, he married Deborah. (Id. ¶ 8.) For over 20
years, from 1985 until 2007, Nik and Deborah enjoyed a “happy life,” with frequent social
engagements. (Id. ¶ 8.) During those years, Nik traveled to Iran from time to time to visit family
who remained there, in particular a sister and her two children. (Id. ¶ 9.)
A. Nik Moradi’s Detention by the Islamic Republic of Iran (October 2007-April
2008)
The events directly relevant to the pending action began on October 31, 2007, when Nik
arrived at the International Airport in Teheran for what he thought would be a four-day visit. (Id.
¶¶ 10, 12.) When Nik arrived he was met by Iranian authorities who told him there was a
“problem” and that he would be their “guest for the night.” (Id. ¶ 12.) He was then handcuffed,
blindfolded and driven from the airport to an unknown location where he was told to undress and
put on a pair of pajamas and plastic sandals. (Id. ¶¶ 13, 15.) A piece of masking tape with
numbers on it was stuck to his chest. (Id.) His clothes were put in a garment bag, and the bag
was hung from a pipe where other garment bags were also hanging. (Id.) The man who took
Nik’s clothes described himself as a “mortician” – a person who “is brought people who are dead
so that he can wash them and put the[m] in the ground.” (Id.) After the mortician gave Nik a
few supplies (“two blankets, a pillow-sized piece of foam, a plastic pitcher, two plastic cups and
a bar of soap”) (id. ¶16), he was again blindfolded and taken to a cell. (Id.) When Nik saw the
size of the cell – no more than five feet by eight feet – he “panicked and started to yell” (id. ¶
17); he also tried to stop the door from being shut by putting his head next to the door and told
2
them he “was dying and couldn’t breathe.” (Id.) At that point, he was injected with something
and thrown into the cell. (Id.)
Nik was kept in solitary confinement in this cell for the next 5 1/2 months, except when
he was taken out for interrogations. (Id.) The cell was concrete with no light other than what
could be glimpsed in the hallway through the small opening with iron bars at the top of the door.
(Id. ¶ 16.) There was no bed or other furniture or toilet. (Id. ¶ 26.) He was not allowed to make
noise or to speak to the guards, and he had no contact with any other human beings, except his
interrogators. (Id. ¶ 27.) Whenever he was taken out of the cell, he was blindfolded. (Id.) If he
needed to use a bathroom, he showed the guard a card with a picture on it. (Id.) He was
punished if he asked to go to the bathroom more than once a day. (Id. ¶ 29.) He was given very
little food to eat and was “constantly starving.” (Id. ¶ 28.) He was also given “truth pills” every
day. (Id. ¶ 31.)
In addition to being kept in solitary confinement under these harsh conditions, Nik was
repeatedly subjected to lengthy interrogations, during which he was accused of working with
foreign agencies against Iran and of being a spy. (Id. ¶¶ 20, 25, 37.) During these interrogations,
he was both verbally threatened and mentally and physically abused. (Id. ¶¶ 21, 35, 41, 42.) He
was repeatedly told that he would be hanged. (Id. ¶¶ 21, 30, 31, 32.) On more than one
occasion, his left hand was cuffed to a railing on the wall or a bar while he was on the floor,
forcing him to contort his body into an extremely painful position. (Id. ¶ 35.) He would be left
alone in that position for extended periods of time. (Id. 35.) For a long time, Nik responded
truthfully that he was not working for anyone or against the Islamic Republic of Iran. (Id. ¶ 39.)
Over time the interrogations became more brutal. (Id. ¶ 41.) Nik was subjected to lengthy
beatings while being interrogated and would often pass out; on one occasion a hole was burned
3
into his thigh. (Id. ¶¶ 41, 42.) On another occasion, he was shown a picture of another prisoner
who had been tied with rope to a frame, hanging upside down, and had a cut from his crotch
through his intestines, which were hanging out of his body. (Id. ¶ 43.) Standing next to this
prisoner was a man in a black executioner’s mask, holding a meat cleaver. (Id.) After showing
Nik the picture, the interrogators tied him to a similar frame and threatened him with similar
treatment if he did not confess to spying against Iran. (Id. ¶¶ 44, 45.) On yet another occasion,
guards urinated on Nik’s head while he was lying on the ground blindfolded and with his hands
and feet bound. (Id. ¶ 46.) Nik was also sexually assaulted while blindfolded. (Id.) He also
often had seizures, which he had never had before. (Id. ¶ 49.)
There came a point when Nik thought that he could bear no more and that he wanted to
die. (Id. ¶¶ 47, 48.) He made several unsuccessful attempts to kill himself or to goad his
interrogators into beating him severely enough to kill him. (Id. ¶ 47.) Finally, after having a
dream about his mother that made him worry that something had happened to her, Nik broke
down and told his interrogators that he would tell them whatever they wanted as long as he could
call his mother. (Id. ¶ 52.) The interrogators told him that they would find his mother, but that
in the meantime he should start writing down answers to their questions, which they proceeded
to dictate to him. (Id. ¶ 53.) As directed, Nik falsely confessed that he had worked with the FBI,
the CIA, the KGB and other groups. (Id.) Nik’s captors then tried to get him to implicate one of
his friends, but Nik refused. (Id. ¶¶ 55-57.)
Shortly after Nik’s confession, he was taken before a judge for the first time. (Id. ¶ 58.)
The judge ripped up Nik’s confession, stating that he “knew” Nik was not a spy and that he
would “issue a verdict” that Nik was not guilty and order him released. (Id. ¶¶ 54, 58, 59.)
4
Nik’s relatives in Iran put up the money for a $500,000 bond, and he was released on April 15,
2008. (Id. ¶ 60.)
By the time of his release, Nik had lost 40 to 50 pounds. (Decl. of Deborah Moradi ¶ 15
(“D. Moradi Decl.”).) Due to passport issues, he was unable to leave Iran until November 2008.
(N. Moradi Decl. ¶ 61; D. Moradi Decl. ¶ 14.) He initially flew to Dubai, where he was met by
Deborah. (N. Moradi Decl. ¶ 68; D. Moradi Decl. ¶ 14.) By then he had regained some weight,
but still weighed 20 pounds less than he had when he left the United States. (D. Moradi ¶ 15.)
Only then did Deborah tell her husband that his mother had died while he was in prison. (N.
Moradi Decl. ¶ 68; D. Moradi Decl. ¶ 14.)
After Nik had left Iran, the Revolutionary Court decided to hold another hearing. (N.
Moradi Decl. ¶ 70.) Nik did not return to Iran for the hearing, forfeiting the $500,000 bond. (Id.
¶ 70.) The Revolutionary Court found him guilty of spying and sentenced him in absentia to ten
years in prison and 100 lashes. (Id. ¶ 71.)
B. Injuries Suffered by Nik Moradi
1. Physical and Psychological Injuries
Nik suffered significant physical and psychological injuries while he was in prison. In
addition, his detention has caused long-term psychological injuries.1 When Nik first returned to
the United States and for some time thereafter, he successfully suppressed his memory of many
incidents; however, his memories eventually returned, causing him significant problems. (N.
Moradi Decl. ¶¶ 45, 46; D. Moradi Decl. ¶ 17.) By all accounts, he is now a much different man
1
Nik also suffers from severe bilateral macular degeneration and coronary artery stenosis. (N.
Moradi Decl. ¶¶ 78, 79.) According to Nik, his primary physician believes his extended
confinement in an unlit cell contributed to his eye problems and that his months without
medication contributed to his arterial stenosis. (N. Moradi Decl. ¶ 78, ¶ 79.) However, Nik’s
hearsay statement of his doctor’s opinion does not constitute competent evidence.
5
than he was before his detention. He often cries and thrashes in his sleep, causing Deborah to
wake him to try and calm him down. (N. Moradi Decl. ¶ 74; D. Moradi Decl. ¶¶ 17, 25.) He and
Deborah both feel that he is not the person he used to be. (N. Moradi Decl. ¶ 75; D. Moradi
Decl. ¶ 16 (after his return, “it soon became clear that he was not the same man he had been
before he was imprisoned”).) He has trouble thinking clearly. (N. Moradi Decl. ¶ 75.) He used
to have good relationships with many people; now, he cannot connect. (N. Moradi Decl. ¶ 75; D.
Moradi Decl. ¶ 16 (describing Nik Moradi as “distant, fearful, and unable to connect with me or
others”).) He has no desire to go places or socialize with people. (N. Moradi Decl. ¶ 75.) He
usually feels depressed and lonely. (Id. ¶ 75.) He takes medication to help him sleep, but he is
never well-rested. (Id.) According to Nik, the only emotion he strongly feels now is anger at his
captors. (Id. ¶ 76.) He says that he “feel[s] as though my captors stole from me what it really is
to be human.” (Id.)
Nik has been diagnosed with post-traumatic stress disorder (“PTSD”) and major
depressive disorder. (Expert Report of Stuart Grassian, M.D., ¶ 11 (“Grassian Rep.”)2; Expert
Report of Carol Santucci, LICSW, ¶¶ 5, 28, 29, 33 (“Santucci Rep.”).3) PTSD is:
the result of experiencing psychological trauma – an experience so horrifying, so
frightening, that it overcomes the individual’s capacity to cope, reducing him to
absolute terror and horror. It is characterized by intrusive images and thoughts of
the traumatic event (awake, or asleep in the form of nightmares); acute
physiologic reactions (heart pounding, sweating, dizziness, etc.) to stimuli
2
Dr. Grassian is “a Board-certified psychiatrist, licensed to practice medicine in the
Commonwealth of Massachusetts” who has “been actively involved continuously since 1974 in
evaluating and treating patients for psychiatric disorders.” (Grassian Rep. ¶ 1.) He was “a
member of the faculty at Harvard Medical School for more than twenty-five years.” (Id.)
3
Ms. Santucci is “a licensed independent clinical social worker (LICSW)” who has been
practicing since 1996. (Santucci Rep. ¶ 1.) She has a Masters in Social Work from the Catholic
University of America and did a post-graduate fellowship in Advanced Psychotherapy at the
Yale University School of Medicine. (Id., Ex. A.)
6
reminiscent of the event; increased arousal (a constant state of vigilance, anxiety
and tension, irritability, jumpiness), emotional numbing and depression (an
inability to find pleasure or passion in anything), and avoidance of stimuli
reminiscent of the event. PTSD is characterized as well by feelings of shame and
guilt, and not infrequently leaves the person immobilized with depression.
(Grassian Rep. ¶13.) MDD “may be the result of a single terrifying event such as rape or
surviving a fatal car accident, but the worst traumatic situations involve inescapable, repetitive
trauma; the trauma of prolonged combat is an obvious example.” (Grassian Rep. ¶ 14.) “MDD
is characterized by somatic symptoms such as sleep or appetite disturbance, social withdrawal,
impaired concentration, inability to find pleasure in usual activities, a loss of libido, feelings of
hopelessness, worthlessness, and guilt.” (Id. ¶ 15.) Nik has also been diagnosed with
“Delirium: Solitary Confinement Syndrome.” (Grassian Rep. ¶ 11.)
In Dr. Grassian’s opinion, Nik’s disorders are the “direct result” of his treatment while
detained and “[t]here is little hope for further improvement.” (Grassian Rep. ¶¶ 11, 65 (“These
illnesses have persisted now for approximately six years without any significant improvement. . .
. Studies have demonstrated that without significant amelioration of the symptoms of PTSD even
after just six months, the prognosis for further improvement is very poor.”).) According to Dr.
Grassian, Nik “remains deeply depressed, unable to find any pleasure in his life. He feels shame
that he has not wanted to have intimate relations with his wife in all the years since his release.
He feels hopeless – like the world has closed in on him.” (Grassian Rep. ¶ 67.) Dr. Grassian
concludes that “[d]espite some efforts at receiving psychiatric and psychological help, there has
been little change in Mr. Moradi’s condition over the years since his release. It unfortunately is
not surprising that he has not, and likely cannot ever, heal from his wounds.” (Grassian Rep. ¶
69; Santucci Rep. ¶ 33.)
7
2. Economic Injuries
During the time Nik was detained, “Deborah made the payments on the store, but it was
not open for most of the time I was incarcerated and then unable to leave Iran.” (N. Moradi
Decl. ¶ 80.) Nik estimates that the store’s closing during this period “caused [him] a loss in
income of at least . . . $1,184,000, calculated based on sales over the previous years.” (N.
Moradi Decl. ¶ 80; D. Moradi Decl. ¶ 10.) Nik indicates that before his detention in Iran, he “did
not plan to retire at particular age, and . . . [he] would have continued to own and operated the
store for many more years. (Id. ¶ 80.)
C. Injuries Suffered By Deborah Moradi
When Nik was first detained, Deborah had no idea what had happened to him. (D.
Moradi Decl. ¶¶ 5, 9.) After a few days, she learned that he had been detained by the Iranian
authorities, but for over a month after that she had no idea whether he was dead or alive. (Id. ¶
8.) She eventually learned through the State Department, which made inquiries through the
Swiss Embassy, that he was alive and that Iranian authorities might charge him with espionage
(id.), but she had no contact with him while he was detained.
In addition to the anguish Deborah experienced during her husband’s detention, Nik’s
detention has caused permanent damage to their relationship. (Id. ¶¶ 24-26 (“Nik’s detention
and the impact of that has affected every facet and level of our personal lives. We are no longer
able to make each other happy and are becoming more estranged. With each passing week we
withdraw from each other more and more.”).) Since his return, Nik and Deborah have had no
physical relationship, and she describes their marriage as “ruined.” (Id. ¶¶ 21, 26 (“Since his
return Nik has been so irritable, angry and depressed, we cannot have a normal relationship,
8
much less a happy one like we had before he was held in Iran.”); see also N. Moradi Decl. ¶¶ 73,
76.)
D. Purpose of Detention
According to an expert report submitted by plaintiffs, the Iranian government detained
Nik, and has similarly detained other dual Iranian-American citizens,
as part of a pattern and practice of behavior towards Iranian-American dual citizens,
particularly active during the time period of the complaint, in which illegal actions were
directed against such dual citizens for political purposes of the Iranian regime. These
purposes included coercing political prisoners to make false confessions that they had
taken actions against Iranian state on behalf of the American government.
(Expert Report of Mehdi Khalaji ¶ 34 (“Khalaji Rep.”).4) In addition, in this expert’s opinion,
Nik’s detention was “undertaken at the direction, and with the active participation, of the Iranian
government.” (Id. ¶ 35.)
II. PROCEDURAL HISTORY
On April 30, 2013, Nik and Deborah Moradi timely filed5 the pending action against the
Islamic Republic of Iran under 28 U.S.C. § 1605A , alleging that Nik’s treatment during his 5½
month detention constituted torture that entitled them to compensatory and punitive damages.
Plaintiffs successfully effectuated service on Iran via the procedure set forth in 28 U.S.C.
§ 1608(a)(4)—two copies of the summons, complaint and notice of the suit, along with
translations of each into Persian were provided to the Clerk of this Court on July 1, 2013, who
4
Mehdi Khalaji is a Senior Fellow at the Washington Institute for Near East Policy. (Khalaji
Rep. ¶ 1 & Ex. A) He has a Doctorate Degree in Shiite Exegesis and Theology from the
University of Sorbonne in Paris, France and a Masters Degree in Western Philosophy from the
University of Tarbiate Modarres in Qom, Iran. (Id.) He previously testified as an expert in
United States v. Lahiji, 3:10-cr-00506 (D. Or. 2013).
5
Section 1605A(c) of the FSIA provides that an injured party has ten years from the date the
action accrued to initiate an action. 28 U.S.C. § 1605A(c). As Nik was released from
confinement on April 15, 2008, this action was filed within the ten-year statute of limitations.
9
then forwarded the documents to the Secretary of State (to the attention of the Director of Special
Consular Services). (Affidavit of Service, Oct. 15, 2013 [ECF No. 9].) The U.S. Department of
State confirmed that Iran was served with the documents and an offer of arbitration on July 31,
2013. (Id.) The Iranian Ministry of Foreign Affairs refused the documents that same day. (Id.)
After defendant failed to respond to the complaint, the Clerk entered a default pursuant to
Federal Rule of Civil Procedure 55(a). (Clerk’s Entry of Default, Nov. 12, 2013 [ECF No. 13]).
Pursuant to Federal Rule of Civil Procedure 55(b), plaintiffs filed the pending motion for default
judgment. (Mot. for Default Judgment [ECF No. 17] (“Mot.”) & Memorandum in Support
Thereof [ECF No. 18], Sept. 23, 2014.)
CONCLUSIONS OF LAW
I. LEGAL STANDARD FOR ENTRY OF DEFAULT JUDGMENT UNDER THE
FSIA
Before this Court can enter a default judgment against Iran under the FSIA, plaintiffs are
required by to establish their claims “by evidence satisfactory to the court.” 28 U.S.C. § 1608(e);
see also Han Kim v. Democratic People's Republic of Korea, No. 13-7147, 2014 WL 7269560,
at *2 (D.C. Cir. Dec. 23, 2014) (“when the defendant State fails to appear and the plaintiff seeks
a default judgment, the FSIA leaves it to the court to determine precisely how much and what
kinds of evidence the plaintiff must provide, requiring only that it be ‘satisfactory to the court’”).
The Court “may not unquestioningly accept a complaint’s unsupported allegations as true.”
Reed v. Islamic Republic of Iran, 845 F. Supp. 2d 204, 211 (D.D.C. 2012). However, an
evidentiary hearing is not required; a “plaintiff may establish proof by affidavit.” Id.; Weinstein
v. Islamic Republic of Iran, 184 F. Supp. 2d 13, 19 (D.D.C. 2002).
II. JURISDICTION UNDER THE FSIA
10
The first question that that must be answered in considering a motion for default
judgment under the FSIA is whether the court has jurisdiction over plaintiffs’ claims. The FSIA
provides the sole basis for obtaining jurisdiction over a foreign state in a United States court. See
28 U.S.C. § 1330; Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434
(1989). Plaintiffs here assert jurisdiction under 28 U.S.C. § 1605A,6 the “[t]errorism exception
to the jurisdictional immunity of a foreign state.” In relevant part, § 1605A provides that a
foreign state
shall not be immune from the jurisdiction of courts of the United States or of the
States in any case not otherwise covered by this chapter in which money damages
are sought against a foreign state for personal injury or death that was caused by
an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the
provision of material support or resources for such an act if such act or provision
of material support or resources is engaged in by an official, employee, or agent
of such foreign state while acting within the scope of his or her office,
employment, or agency,
Id. § 1605A(a)(1). It further provides that a court “shall hear a claim under this section if–
the foreign state was designated as a state sponsor of terrorism at the time the act
described in paragraph (1) occurred . . . and . . . remains so designated when the
claim is filed . . . . (ii) the claimant or the victim was, at the time the act described
in paragraph (1) occurred – (I) a national of the United States; . . . and (iii) 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 in accordance with the accepted international rules of
arbitration.
Id. § 1605A(a)(2)(A).
All of the conditions necessary to establish this Court’s jurisdiction to hear plaintiffs’
claims have been satisfied. First, starting with the requirements of § 1605A(a)(2)(A), plaintiffs
6
The National Defense Authorization Act for Fiscal Year 2008, Pub.L. No. 110-181, § 1083
(“Defense Authorization Act”) amended the FSIA by replacing 28 U.S.C.A. § 1605(a)(7) (the
former state sponsored terrorism exception) with a new terrorism exception, codified at 28
U.S.C. § 1605A.
11
have established that (i) the Islamic Republic of Iran was designated a state sponsor of terrorism
in 2007-08 and remained so designated at the time this case was filed7; (ii) both Nik and Deborah
are United States citizens (see N. Moradi Decl. ¶ 9; D. Moradi Decl. ¶ 1), and thus United States
nationals as defined in § 1605A(h)(5)8; and (iii) an offer of arbitration was included with the
documents served on Iran on July 31, 2013. See Simpson v. Socialist People’s Libyan Arab
Jamahiriya, 326 F.3d 230, 233 (D.C. Cir. 2003) (“a reasonable opportunity to arbitrate” need not
precede the filing of the complaint).
Second, the requirements of § 1605A(a)(1) are met because plaintiffs are seeking money
damages for personal injuries caused by alleged acts of torture. Under § 1605A, the term
“torture” is defined to “have the meaning given [it] in section 3 of the Torture Victim Protection
Act of 1991 (28 U.S.C. 1350 note).” Id. § 1605A(h). As defined therein:
(1) the term “torture” means any act, directed against an individual in the
offender’s custody or physical control, by which severe pain or suffering (other
than pain or suffering arising only from or inherent in, or incidental to, lawful
sanctions), whether physical or mental, is intentionally inflicted on that individual
for such purposes as obtaining from that individual or a third person information
or a confession, punishing that individual for an act that individual or a third
7
The term “state sponsor of terrorism” means a country the government of which the Secretary
of State has determined, for purposes of section 6(j) of the Export Administration Act of 1979
(50 U.S.C. App. 2405(j)), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371),
section 40 of the Arms Export Control Act (22 U.S.C. 2780), or any other provision of law, is a
government that has repeatedly provided support for acts of international terrorism. 28 U.S.C.A.
§ 1605A(h)(6). The Islamic Republic of Iran has been designated a state sponsor of terrorism
since January 19, 1984. See State Sponsors of Terrorism, U.S. Dept. of State,
http://www.state.gov/j/ct/list/c14151.htm (2014); Goldberg–Botvin v. Islamic Republic of Iran,
938 F. Supp. 2d 1, 5 (D.D.C. 2013); Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d
48, 64 (D.D.C. 2013).
8
The term “national of the United States” has the meaning given that term in section 101(a)(22)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)), 28 U.S.C. § 1605A(h)(5), which
defines a “national of the United States” to mean “(A) a citizen of the United States, or (B) a
person who, though not a citizen of the United States, owes permanent allegiance to the United
States. 8 U.S.C. § 1101(a)(22).
12
person has committed or is suspected of having committed, intimidating or
coercing that individual or a third person, or for any reason based on
discrimination of any kind; and
(2) mental pain or suffering refers to prolonged mental harm caused by or
resulting from—
(A) the intentional infliction or threatened infliction of severe physical
pain or suffering;
(B) the administration or application, or threatened administration or
application, of mind altering substances or other procedures calculated to
disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another individual will imminently be subjected to
death, severe physical pain or suffering, or the administration or
application of mind altering substances or other procedures calculated to
disrupt profoundly the senses or personality.
Torture Victim Protection Act of 1991 (“TVPA”), Pub. L. No. 102-256, 106 Stat. 73 (Mar. 12,
1992), codified at 28 U.S.C. § 1350 (note).
In Price v. Socialist People’s Libyan Arab Jamahiriya, the D.C. Circuit gave extensive
consideration to what conduct should be deemed to constitute torture under the FSIA. 294 F.3d
82, 92-93 (D.C. Cir. 2002). It concluded that there were “two ambiguities lurking in the
[TVPA’s] definition” of torture: “The first concerns the meaning of ‘severe’: how much actual
pain or suffering must defendants inflict before their conduct rises to the level of torture? The
second involves the ‘for such purposes’ language: what must plaintiffs prove about the
motivation for the alleged torture if they hope to deprive foreign states of their immunity?” Id. at
92. As to the severity requirement, the Court observed that it “is crucial to ensuring that the
conduct proscribed by the Convention [Against Torture] and the TVPA is sufficiently extreme
13
and outrageous to warrant the universal condemnation that the term “torture” both connotes and
invokes.” Id. Thus, it concluded that:
[t]he critical issue is the degree of pain and suffering that the alleged torturer
intended to, and actually did, inflict upon the victim. The more intense, lasting, or
heinous the agony, the more likely it is to be torture. . . . This understanding thus
makes clear that torture does not automatically result whenever individuals in
official custody are subjected even to direct physical assault. Not all police
brutality, not every instance of excessive force used against prisoners, is torture
under the FSIA.
Id. at 93. Rather, the Court in Price agreed with the Senate that “torture is a label that is ‘usually
reserved for extreme, deliberate and unusually cruel practices, for example, sustained systematic
beating, application of electric currents to sensitive parts of the body, and tying up or hanging in
positions that cause extreme pain.’” Id. at 92-93. As for the purpose requirement, the Court held
that “it is clear from the text of the TVPA that the list of purposes provided was not meant to be
exhaustive.” Id. at 93. Rather, “this list was included in order to reinforce that torture requires
acts both intentional and malicious, and to illustrate the common motivations that cause
individuals to engage in torture.” Id. Thus, the Court concluded that “whatever its specific goal,
torture can occur under the FSIA only when the production of pain is purposive, and not merely
haphazard.” Id.; see Han Kim v. Democratic People’s Republic of Korea, 2014 WL 7269560, at
*6 (“[S]uffering alone is insufficient to establish a claim under the FSIA's terrorism exception.
To qualify as torture, the mistreatment must be purposeful—that is, the defendant must have
targeted the victim, for instance, to punish him for his religious or political beliefs.”)
Applying its interpretation of the definition of torture to the complaint in Price, the Court
held that the allegations in the complaint were insufficient to allege torture because they
“offer[ed] no useful details about the nature of the kicking, clubbing, and beatings that plaintiffs
allegedly suffered,” and, thus, there was “no way to determine . . . the severity of plaintiffs’
14
alleged beatings – including their frequency, duration, the parts of the body at which they were
aimed, and the weapons used to carry them out – in order to ensure that they satisfy the TVPA’s
rigorous definition of torture.” Id. at 94 (“In short, there is no way to discern whether plaintiffs’
complaint merely alleges police brutality that falls short of torture.”); see also Simpson v.
Socialist People’s Libyan Arab Jamahiriya, 326 F.3d at 234 (holding that allegations that
plaintiff was “interrogated and then held incommunicado,” “threatened with death ... if [she]
moved from the quarters [where she was] held,” and “forcibly separated from her husband ...
[and unable] to learn of his welfare or his whereabouts” “reflected a bent toward cruelty on the
part of their perpetrators,” but were “not in themselves so unusually cruel or sufficiently extreme
and outrageous as to constitute torture within the meaning of the Act”).)
District courts in this jurisdiction applying the principles set forth in Price and Simpson
have consistently concluded that victims treated similarly to Nik were victims of torture. For
example, in Price, after the case was remanded and the complaint amended, the District Court
held that the amended complaint stated a claim for “mental torture” by alleging that the victims
were “forced to watch on three separate occasions as fellow prisoners were beaten, one of whom
was beaten to death,” were “informed on each occasion that they would suffer the same fate if
they refused to confess that they were guilty of espionage,” and were “informed, during an
interrogation at which cabinet-level Libyan officials were present, that they were being afforded
one last chance to confess, or they would be beaten as they had seen their fellow prisoners be
beaten.” Price v. Socialist People’s Libyan Arab Jamahiriya, 274 F. Supp. 2d 20, 25 (D.D.C.
2003) (Price II), aff’d, 389 F.3d 192, 195-96 (D.C. Cir. 2004). Similarly, in Nikbin v. Islamic
Republic of Iran, the District Court concluded that “striking Nikbin repeatedly on the soles of his
feet with an electrical cable, hanging Nikbin upside down from the ceiling during an
15
interrogation session, and assaulting Nikbin with a coke bottle prior to his departure from Iran,”
were “acts of torture” because they “were the very kinds of cruel and inhuman activities that
concerned Congress when it passed the TVPA.” 517 F. Supp. 2d 416, 425 (D.D.C. 2007); see
also Kilburn v. Islamic Republic of Iran, 699 F. Supp. 2d 136, 152 (D.D.C. 2010) (hostage taken
by an Iranian-supported terrorist group experienced torture in the form of “beatings, unsanitary
conditions, inadequate food and medical care, and mock executions”); Massie v. Government of
the Democratic People’s Republic of Korea, 592 F. Supp. 2d 57, 66, 74 (D.D.C. 2008) (former
members of a crew of a United States Naval vessel captured by the Government of the
Democratic People’s Republic of Korea (North Korea) in 1968 were victims of torture where
they were “provided inadequate rations of food and forced to live in unsanitary conditions” and
subjected to “individual threats of death, threats to kill others, [and] severe beatings” in order to
coerce them into signing confessions); Regier v. Islamic Republic of Iran, 281 F. Supp. 2d 87,
91, 97 (D.D.C. 2003) (victim was “tortured’” when his captors regularly beat him, threatened
him with death, and confined him in “deplorable and inhumane conditions”); Daliberti v.
Republic of Iraq, 146 F. Supp. 2d 19, 25 (D.D.C. 2001) (victim who was held at gunpoint,
threatened with physical injury if he did not confess to espionage, and incarcerated “in a room
with no bed, window, light, electricity, water, toilet or adequate access to sanitary facilities”
experienced torture as defined by the FSIA); Sutherland v. Islamic Republic of Iran, 151 F.
Supp. 2d 27, 45 (D.D.C. 2001) (“the deprivation of adequate food, light, toilet facilities, and
medical care for over six years amounts to torture”).
After considering the statutory definition of torture, the D.C. Circuit’s precedential
decisions in Price and Simpson, the instructive decisions of other district court judges, and the
facts of this case as set forth above, the Court concludes that the physical and mental injuries
16
inflicted upon Nik by his interrogators constituted torture.9 His interrogators frequently
subjected him to severe physical and mental pain, including threatening him with death and
dismemberment, physically beating him, sexually assaulting him, and keeping him in
excruciatingly painful positions for hours at a time during the interrogations. His mistreatment
clearly goes beyond a mere “instance of excessive force” against a prisoner; rather the infliction
of pain was deliberate and malicious and for the purpose of eliciting a false confession.
Accordingly, the Court concludes that Nik was the victim of torture, and therefore, that it has
jurisdiction over plaintiffs’ claims against the Islamic Republic of Iran under § 1605A of the
FSIA.
III. LIABILITY UNDER § 1605A
Section 1605A(c) creates a federal statutory cause of action for plaintiffs in an action
brought under section 1605A. It provides that a claimant or victim has a “private right of action”
against “[a] foreign state that is or was a state sponsor of terrorism as described in subsection
(a)(2)(A)(i)” and that “the foreign state is liable for personal injury or death caused by acts
described in subsection (a)(1) of that foreign state, or of an official, employee, or agent of that
foreign state, for which the courts of the United States may maintain jurisdiction under this
section for money damages.” Section § 1605A(c) expressly incorporates the elements required
to waive the foreign state’s immunity and vest the court with subject matter jurisdiction – the
acts set forth in subsection (a)(1) – as the basis for liability. Accordingly, liability under §
1605A(c) will exist whenever the jurisdictional requirements of §1605A(a)(1) are met. See
9
Plaintiffs proffer two theories to support their claim that Nik was tortured: (1) he was tortured
by the physical and psychological abuse he was subjected to by his interrogators while in prison;
and (2) he was tortured by his extended solitary confinement. Having concluded that Nik’s
treatment by his interrogators constituted torture, the Court need not decide whether his extended
period of solitary confinement was sufficient to constitute torture.
17
Kilburn, 699 F. Supp. 2d at 155 (“Although an analysis of a foreign sovereign’s potential
immunity and liability should be conducted separately, the elements of immunity and liability
under § 1605A(c) are essentially the same in that § 1605A(a)(1) must be fulfilled to demonstrate
that a plaintiff has a cause of action.”); see also Gates v. Syrian Arab Republic, 580 F. Supp. 2d
53, 64–69 (D.D.C. 2008) (analyzing liability and jurisdiction together); Murphy v. Islamic
Republic of Iran, 740 F. Supp. 2d 51, 72 (D.D.C. 2010) (same).
Accordingly, since the Court has determined that Iran, acting through its agents, tortured
Nik within the meaning of § 1605A(a)(1), it follows that Iran is liable under § 1605A(c) for any
personal injuries caused by that torture.
IV. DAMAGES UNDER § 1605A
As authorized by § 1605A(c), plaintiffs are seeking compensatory damages for pain and
suffering, solatium, and economic damages, as well as punitive damages. See 28 U.S.C. §
1605A(c).
1. Compensatory Damages
To obtain compensatory damages in a FSIA case, a plaintiff “must prove that the
consequences of the defendants’ acts were reasonably certain to occur, and they must prove the
amount of damages by a reasonable estimate.” Reed, 845 F. Supp. 2d at 213 (citing Hill v.
Republic of Iraq, 328 F.3d 680, 681 (D.C. Cir. 2003)).
a. Pain and Suffering
Nik seeks $1.68 million in damages to compensate for his pain and suffering while he
was detained and $13.4 million in damages to compensate for his pain and suffering since his
release, including any future pain and suffering.
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Plaintiffs have met their burden to prove that the pain and suffering Nik experienced
during and since his detention was a reasonably certain consequence of defendant’s acts. The
evidence establishes that Nik was tortured while he was detained with the desired and expected
effect of causing him extreme physical and psychological pain. The evidence further establishes
that, as a result of defendant’s torture, Nik now suffers from post-traumatic stress disorder and
major depressive disorder, conditions from which he is unlikely to ever recover. Thus, Nik is
entitled to pain and suffering damages for the time he was detained and for the time since his
release. See, e.g., Price v. Socialist People’s Libyan Arab Jamahiriya, 384 F. Supp. 2d 120, 135
(D.D.C. 2005) (Price III) (awarding damages for pain and suffering during and after captivity
because “[n]ot only do plaintiffs continue to suffer physical disabilities, such as tinnitus, but they
have had continued difficulty in daily living, in social interactions, and in employment”); Massie,
592 F. Supp. 2d at 77 (awarding damages for during and after captivity because victims had
“suffered physical and mental harm that ha[d] endured for the past 39 years and likely will
continue to endure throughout the rest of their lives.”)
Obviously, “[p]uting a number on these kinds of harms can be difficult.” Price III, 384
F. Supp. 2d at 134. The primary consideration is to ensure that “individuals with similar injuries
receive similar awards.” See, e.g., Harrison v. Republic of Sudan, 882 F. Supp. 2d 23, 48
(D.D.C. 2012) (internal quotations omitted). For the period of detention, plaintiffs seek damages
of $1.68 million, a number that is based on a rate of $10,000/day for 168 days of detention.
Plaintiffs use the approach of $10,000/day because “[i]n many cases of prolonged and abusive
captivity, plaintiffs are awarded approximately $10,000 per day for the pain and suffering they
experienced while captive.” Price III, 384 F. Supp. 2d at 135 ($1.05 million for 105 days of
captivity); see also Massie, 592 F. Supp. 2d at 77 (awarding $10,000 per day for 335 days of
19
imprisonment by government of North Korea); Kilburn, 699 F. Supp. 2d at 157 ($5.03 million
for 503 days as hostage); Sutherland, 151 F. Supp. 2d at 51 ($23.54 million for 2,354 days of
captivity); Anderson v. Islamic Republic of Iran, 90 F. Supp. 2d 107, 113 (D.D.C. 2000) ($24.54
million for 2,454 days of captivity). As Nik’s treatment while detained was comparable to the
treatment of these other detained victims, the Court finds $10,000/day or $1.68 million to be a
reasonable estimate of pain and suffering damages for Nik’s period of confinement.
For the post-detention period, plaintiffs seek damages of $13.4 million, the amount of
post-release pain and suffering damages awarded to each victim in Massie, a FSIA case that is
similar to the present case in that the victims there were also held and tortured by a foreign
government (North Korea). However, there are also critical differences between the victims in
Massie and Nik, including that the victims in Massie were held for a much longer period of time
(335 days) than Nik (168 days) and that by the time the victims in Massie were able to file suit
and obtain a judgment, 39 years had passed since their release, as compared to the 7 years that
have elapsed since Nik’s release. In addition, the victims in Massie were younger at the time of
their release than Nik was, exposing them to many more years of post-release suffering. Indeed,
although not expressly stated, it is apparent that the Court’s post-captivity pain and suffering
award in Massie was exactly four times the award for pain and suffering during captivity. Using
that multiplier would result in an award of $6.72 million in the present case. The Court will not
use the amount of post-release damages awarded in Massie to determine damages in this case.
This conclusion is bolstered by the fact that in other cases with post-release pain and suffering
damages awards, courts have awarded $7 million to victims with longer periods of post-release
suffering and more severe injuries than Nik. See, e.g., Price III, 384 F. Supp. 2d at 136
(awarding $7 million for post-captivity pain and suffering to a 57-year old victim who had
20
suffered for the past 25 years and would likely suffer for the rest of his life); Acree v. Republic of
Iraq, 271 F. Supp. 2d 179, 220 (D.D.C. 2003) (awarding $7 million for post-captivity pain and
suffering), vacated on other grounds, 370 F.3d 41 (D.C. Cir. 2004). Considering these cases and
the specific facts of this case, the Court concludes that $5 million is the appropriate amount of
damages for Nik’s post-release pain and suffering.
Accordingly, the Court will award Nik a total of $6.168 million in pain and suffering
damages.
b. Economic Damages
Nik seeks economic damages in the amount of $2.784 million to compensate for lost
earnings, during his detention, since his release and in the future. (See Mem. at 29 (“From the
first day of his detention in 2007 to the present, Mr. Moradi’s business has suffered. It suffered
first from his imprisonment and since his release because of his reduced and increasing inability
to work given his physical and psychological condition that resulted from his detention in
Iran.”); id. (Nik “had planned to work for at least five more years, but because of his condition
will soon have to permanently close his store.”). According to the motion for default judgment,
Nik is entitled to $1.184 million in damages for past lost earning and $1.6 million for future lost
earnings. (Id.)
As a general rule, lost earnings – past and future – are compensable economic damages.
See Restatement (Second) of Torts § 906. In addition, the Court does not doubt that defendant’s
acts caused Nik a loss of earnings, past and future. Id. (“Loss in earning capacity may result
from an imprisonment or from a harm to the body, as when there is a physical impairment, from
harm to the mind, as when the injured person suffers a nervous shock . . . .”). But to obtain an
award of damages, plaintiffs must “prove the amount of damages by a reasonable estimate.”
21
Reed, 845 F. Supp. 2d at 213; see Kilburn, 699 F. Supp. 2d at 156 (declining to award economic
damages where “plaintiffs presented no evidence to support an economic damages award”).
Here, Nik’s declaration is the only evidence supporting his claim for lost earnings, and it
is insufficient to support any award of economic damages.10 As previously noted, all that Nik’s
declaration says about a specific monetary loss is that because the store was often closed during
the time he was in Iran, he suffered “a loss in income of at least . . . $1,184,000, calculated based
on sales over the previous years.” But the declaration does not say what those sales figures are,
over how many years, or how sales figures have been used to calculate lost income. As far as the
record before the Court shows, there is no evidentiary support for Nik’s estimate of his lost
income. Nor does the declaration say anything specific about when Nik plans to retire, how
much earlier it would be than planned, and or what amount of lost earnings an early retirement
would cause. Unlike damages for pain and suffering, lost earnings are not hard to quantify, and
the Court will not excuse plaintiffs’ failure to support the claim for lost earnings with competent
evidence. See, e.g., Reed, 845 F. Supp. 2d at 214 (“The report of a forensic economist may
provide a reasonable basis for determining the amount of economic damages in an FSIA case.”);
Belkin v. Islamic Republic of Iran, 667 F. Supp. 2d 8, 24 (D.D.C. 2009) (awarding damages
based on a forensic economic expert’s report).11 Accordingly, the Court declines to award any
economic damages.
10
Statements that appear in plaintiffs’ memorandum in support of the motion for default
judgment are not evidence.
11
The Court need not decide whether an expert is necessary to prevail on a claim for economic
damages under § 1605A because what has been provided here is clearly not sufficient.
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c. Solatium Damages
Deborah seeks solatium damages in the amount of $4 million. “Solatium claims under
the FSIA are functionally identical to claims for intentional infliction of emotional distress.”
Spencer v. Islamic Republic of Iran, No. 12-cv-0042, 2014 WL 5141429, at *2 (D.D.C. Oct. 14,
2014). “They are intended to compensate persons for ‘mental anguish, bereavement and grief
that those with a close personal relationship to a decedent experience . . . as well as the harm
caused by the loss of the decedent’s society and comfort.’” Id. (quoting Oveissi v. Islamic
Republic of Iran, 768 F. Supp. 2d 16, 25 (D.D.C. 2011) (internal citation and quotation marks
omitted)). “Such claims are also available to compensate along similar lines those related to
persons merely injured, rather than killed, in a terrorist attack.” Id.
Although “[c]ourts may presume that spouses and those in direct lineal relationships with
victims of terrorism suffer compensable mental anguish,” see id. (citing Flatow v. Islamic
Republic of Iran, 999 F. Supp. 1, 30 (D.D.C.1998)), the record here establishes that Nik’s
detention and torture caused Deborah significant “mental anguish” (see Deborah Moradi Decl.
¶¶ 5-9, 20), and that due to the nature of Nik’s injuries, her emotional distress is ongoing. (Id. ¶¶
16-18, 21, 24, 26 (“Nik’s detention and the impact of that has affected every facet and level of
our personal lives. We are no longer able to make each other happy and are becoming more
estranged. With each passing week we withdraw from each other more and more.”).) The
Court is also satisfied that Deborah’s emotional distress “was reasonably certain to occur” as a
result of Nik’s detention and torture. See Reed, 845 F. Supp. 2d at 213 (finding damage to son
during his formative years from father’s detention and torture reasonably certain to occur). The
remaining issue is how to quantify the damages due to Deborah.
23
Solatium damages, like damages for pain and suffering, are by their very nature
unquantifiable. Deborah bases her request for $4 million in solatium damages on the so-called
“Heiser” framework. See Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229, 269
(D.D.C. 2006).12 The Heiser framework is a “standardized approach for evaluating solatium
claims” which has been repeatedly used by courts in this jurisdiction to determine damage
awards in FSIA terrorism cases. See, e.g., Spencer, 2014 WL 5141429, at *3; Owens v. Republic
of Sudan, No. 01-cv-2244, 2014 WL 5395774, at *5 (D.D.C. Oct. 24, 2014). Under this
approach, “spouses of deceased victims receive $8 million, parents of deceased victims receive
$5 million, and siblings of deceased victims receive $2.5 million.” Owens, 2014 WL 5395774
(citing Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25, 52 (D.D.C. 2007)). “[W]here
the victim does not die, but instead only suffers injury, the solatium awards are halved: Spouses
receive $4 million, parents receive $2.5 million, and siblings receive $1.25 million.” Id.
Although the Heiser framework was developed in the context of large-scale terrorist attacks,
courts have also applied the framework in cases of hostage-taking or torture. See, e.g., Reed, 845
F. Supp. 2d at 213-14 (awarding $2.5 million to son of deceased victim who was held hostage for
3.65 years); see also Kilburn, 699 F. Supp. 2d at 158 (using Heiser framework but increasing
award from $2.5 million to $5 million due to extremely close relationship between deceased
victim and his brother and other unique circumstances). Indeed, the individual injuries suffered
by a close family member are not likely to be diminished simply because their loved one is the
12
In Heiser, family members and estates of 17 United States servicemen killed in a bomb attack
in Saudi Arabia brought actions against Islamic Republic of Iran, Iranian Ministry of Information
and Security (MOIS), and Iranian Islamic Revolutionary Guard Corp (IRGC). Estate of Heiser
v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006).
24
only one injured or one of a few rather than one of many. Accordingly, the Court will use the
Heiser framework here and award Deborah $4 million in solatium damages.
2. Punitive Damages
Plaintiffs seek $300 million in punitive damages. Punitive damages “serve to punish and
deter the actions for which they are awarded.” Oveissi v. Islamic Republic of Iran, 879 F. Supp.
2d 44, 55-56 (D.D.C. 2012). Courts calculate the proper amount of punitive damages by
considering “four factors: (1) the character of the defendants’ act, (2) the nature and extent of
harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence,
and (4) the wealth of the defendants.” Id. at 56 (internal quotations omitted). Although the
Court believes that the “societal interests in punishment and deterrence warrant imposition of
punitive sanctions” in this case, Onsongo v. Republic of Sudan, No. 08-cv-1380, 2014 WL
3702875, at *6 (D.D.C. July 25, 2014), it does not accept plaintiffs’ proposed amount.
Plaintiffs base their request for a $300 million punitive damages award on the fact that in
another case against the Islamic Republic of Iran, the Court awarded punitive damages in that
amount. See Sutherland, 151 F. Supp. 2d at 53. In Sutherland, though, the victim was taken
hostage by a terrorist group supported by Iran’s Ministry of Information and Security, and the
Court awarded the plaintiff $300 million in punitive damages because it was three times the
amount of annual funding provided by Iran to the Ministry of Information and Security. Id.
Here, the detention and torture was carried out directly by Iranian authorities, so the Court does
not agree that the punitive damages award should be based upon Iran’s funding of its Ministry of
Information and Security. Instead, following the approach of other courts in cases where the
expenditure-times-multiplier method has been rejected, the Court will award punitive damages in
an amount equal to the total compensatory damages awarded. See, e.g., Onsongo, 2014 WL
25
3702875, at *6; Opati v. Republic of Sudan, No. 12-1224, 2014 WL 3687125, at *8-9 (D.D.C.
July 25, 2014). As set forth above, the total compensatory damages award in this case is $10.168
million, the sum of $6.168 million for pain and suffering plus $4.0 million in solatium damages.
Accordingly, the Court will award punitive damages in the amount of $10.168 million.
CONCLUSION
For the reasons stated above, the Court will grant plaintiffs’ motion for default judgment
and enter judgment for plaintiffs in the amounts specified above. A separate Default Judgment
accompanies this Memorandum Opinion.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: January 5, 2015
26