Pautsch v. Islamic Republic of Iran

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JACOB PAUTSCH, et al.,
Plaintiffs,
v. Civil Action No. 20-3859 (JEB)
ISLAMIC REPUBLIC OF IRAN,
Defendant.
MEMORANDUM OPINION
Between 2004 and 2009, Al-Qaeda in Iraq and associated Sunni terrorist groups
perpetrated numerous attacks against American servicemembers and civilians in Iraq. Victims of
those attacks, along with their estates and family members, brought this action against the
Islamic Republic of Iran and the Syrian Arab Republic under the terrorism exception to the
Foreign Sovereign Immunities Act for these foreign states’ material support to the terrorist
groups responsible for the attacks. They seek compensatory and punitive damages for their
physical, economic, and psychological injuries. Because Defendants have failed to appear,
default has been entered. Plaintiffs now move for default judgment as to liability. The Court
grants the motion as to those Plaintiffs who have articulated a cause of action but denies it as to
the others.
I. Background
Plaintiffs are U.S. nationals, along with their estates and members of their families, who
were serving in Iraq as servicemembers or military contractors when they were injured or killed
in eight terrorist attacks committed by Al-Qaeda in Iraq (AQI) and associated Sunni terrorist
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groups in Iraq (STGIs) between 2004 and 2009. See ECF No. 1 (Compl.), ¶¶ 1–2. Jason
Pautsch, whose estate is the lead Plaintiff, was serving in the U.S. Army when he was killed in
an AQI attack involving a suicide-vehicle-borne improvised explosive device (SVBIED) in
western Mosul, Iraq. See id., ¶¶ 200–201. As for the eight remaining Plaintiffs, their convoys,
vehicles, and hotels were struck by explosive devices in AQI and STGI attacks, causing them to
sustain physical and psychological injuries, including post-traumatic stress disorder (PTSD) and
traumatic brain injury (TBI). See id., ¶¶ 208–210, 213–215, 224–226, 230–231, 237–238, 244–
245, 251–253, 257, 262–263, 267, 270–271, 276–278, 285.
Plaintiffs filed this suit against Iran and Syria on December 31, 2020. See Compl. Two
months later, they mailed copies of the summons, Complaint, and notice of the suit to those
states, see ECF Nos. 8 and 9 (Affs. Foreign Mailing), but Defendants refused delivery and
returned the summons as unexecuted. See ECF Nos. 13 (Status Rep.); 15 (Aff. Foreign Mailing).
Plaintiffs then attempted service of process via diplomatic channels and transmitted the service
documents to the U.S. State Department, see ECF Nos. 17 and 18 (Req. Clerk), which
successfully transmitted them to the Iranian and Syrian Ministry of Foreign Affairs on July 1 and
July 26, 2022, respectively. See ECF Nos. 21 (Iran Summons Returned Executed); 22 (Syria
Summons Returned Executed). Both Syria and Iran failed to answer the Complaint. On
September 2, 2022, consequently, Plaintiffs requested an entry of default, see ECF Nos. 23 and
24 (Affs. Default), which the Clerk granted six days later. See ECF Nos. 25 and 26 (Entry
Default). Plaintiffs now move for default judgment and ask the Court to refer the question of
damages to a special master. See ECF No. 31-1 (Mot. Def. J.).
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II. Legal Standard
Default judgment may be ordinarily entered where a defendant is “totally unresponsive,”
and its default is plainly willful, as reflected by its failure to respond to the summons and
complaint, the entry of default, or the motion for default judgment. See Gutierrez v. Berg
Contracting Inc., 2000 WL 331721, at *1 (D.D.C. Mar. 20, 2000) (citing Jackson v. Beech, 636
F.2d 831, 836 (D.C. Cir. 1980)) (internal quotation omitted). In the “‘absence of any request to
set aside the default or suggestion by the defendant that it has a meritorious defense,’ it is clear
that the standard for default judgment has been satisfied.” Int’l Painters & Allied Trades Indus.
Pension Fund v. Auxier Drywall, LLC, 531 F. Supp. 2d 56, 57 (D.D.C. 2008).
Nevertheless, “[m]odern courts are . . . reluctant to enter and enforce judgments
unwarranted by the facts,” Jackson, 636 F.2d at 835, and “a district court may still deny an
application for default judgment where the allegations of the complaint, even if true, are legally
insufficient to make out a claim.” Gutierrez, 2000 WL 331721, at *2 (citing Aldabe v. Aldabe,
616 F.2d 1089, 1092 (9th Cir. 1980)).
Under the FSIA, moreover, there is a heightened standard for default judgment because
the Act “codifies a baseline principle of immunity for foreign states.” Turkiye Halk Bankasi
A.S. v. United States, 598 U.S. 264, 272 (2023); Weinstein v. Islamic Republic of Iran, 175 F.
Supp. 2d 13, 19–20 (D.D.C. 2001) (“[D]efault judgments under the FSIA require
additional findings than in the case of ordinary default judgments.”). Section 1608(e) requires
that “the claimant establish[] his claim or right to relief by evidence satisfactory to the court.”
28 U.S.C. § 1608(e). Regardless of whether a foreign state makes an appearance, the court must
determine that an exception to immunity applies and that the plaintiff has a sufficient legal and
factual basis for his claims. See Jerez v. Republic of Cuba, 777 F. Supp. 2d 6, 18–19 (D.D.C.
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2011). In making this determination, the Court has “a duty to scrutinize plaintiff’s allegations”
and should 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).
III. Analysis
The Court’s analysis proceeds as follows: it first addresses the jurisdictional issues and
then evaluates Defendants’ liability.
A. Subject-Matter Jurisdiction
Foreign states are generally immune from suit in federal court, subject to exceptions
codified in the Foreign Sovereign Immunities Act. See 28 U.S.C. § 1604; see also Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989) (“[T]he FSIA provides the
sole basis for obtaining jurisdiction over a foreign state in federal court . . . .”). Relevant here is
section 1605A, the so-called “terrorism exception” to the FSIA. See Fraenkel v. Islamic
Republic of Iran, 892 F.3d 348, 352 (D.C. Cir. 2018). Under that exception, the FSIA abrogates
a foreign state’s sovereign immunity and provides federal courts with subject-matter jurisdiction
over suits against such an entity where (1) “money damages are sought” (2) “against a foreign
state for” (3) “personal injury or death that” (4) “was caused” (5) “by an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or
resources for such an act.” 28 U.S.C. § 1605A(a)(1); see also Gration v. Islamic Republic of
Iran, 2023 WL 5221955, at *22 (D.D.C. Aug. 15, 2023); Borochov v. Islamic Republic of Iran,
589 F. Supp. 3d 15, 30 (D.D.C. 2022).
All five conditions are met here. First, Plaintiffs seek money damages. See Compl. at
49. Second, Iran and Syria are foreign states. Third, Plaintiffs allege personal injury and death
to servicemembers and military contractors or their family members. Id., ¶ 1.
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The fourth and fifth criteria are more involved. As to the fourth, Plaintiffs have shown
that Iran and Syria’s provision of material support to AQI and its associated STGIs caused their
injuries. The FSIA requires that Plaintiffs show “proximate cause,” meaning only “some
reasonable connection between the act or omission of the defendant and the damage which the
plaintiff suffered.” Ben-Yishai v. Syrian Arab Republic, 642 F. Supp. 3d 110, 125 (D.D.C.
2022) (citation omitted). “This inquiry contains two elements: (1) the defendant’s actions must
be a substantial factor in the sequence of events leading to the injury; and (2) the injury must
have been reasonably foreseeable or anticipated as a natural consequence of the defendant’s
conduct.” Id. at 125 (cleaned up).
Plaintiffs’ expert — Colonel Joel Rayburn (former U.S. Special Envoy for Syria and
former Deputy Assistant Secretary of State for Near Eastern Affairs) — explained that it is
“highly likely” that all eight attacks listed in the Complaint “were carried out by AQI or other
associated STGIs, that were associated with or under the dominant influence of AQI and that
enjoyed material support from the Iranian and Syrian governments.” See ECF No. 31-2
(Rayburn Report) at 9. He also detailed Iran and Syria’s history of providing material support to
Al Qaeda, AQI, and other STGIs to carry out attacks against U.S. troops and civilians during the
U.S.-led military campaign in Iraq from 2003 to 2011. Id. As highlighted by Rayburn,
“[L]ogistical support, territorial safe haven[s], personnel recruitment, weapons, explosives,
training, and other categories of support” from the Iranian and Syrian governments to AQI and
its associated STGIs were substantial factors in the chain of events leading up to the eight
attacks. Id.
Plaintiffs’ injuries, moreover, were reasonably foreseeable consequences of Iran and
Syria’s support of these terrorist groups. According to Rayburn, the Iranian government
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“encouraged and enabled” AQI and other terrorist groups to conduct attacks against U.S. forces
in Iraq. Id. at 7. The Syrian government, moreover, assisted AQI and other STGIs in setting up
terrorist-facilitation networks in which tens of thousands of militants from Syria and other
countries were able to cross into Iraq to conduct these attacks. Id. at 7–8. The Court thus finds a
reasonable connection between Defendants’ actions and the injuries Plaintiffs suffered.
Fifth, the attacks — which Iran and Syria provided material support for — constituted
“extrajudicial killing[s]” or such an attempt within the meaning of the Act. While some
Plaintiffs were U.S. servicemembers who were involved in military operations, as opposed to
civilian bystanders, all Plaintiffs are covered by the terrorism exception, which provides a private
right of action to members of the armed forces and civilians alike. See 28 U.S.C.
§ 1605A(c)(1)–(2); see also Roth v. Islamic Republic of Iran, 651 F. Supp. 3d 65 (D.D.C. 2023)
(finding Iran liable under FSIA exception for 25 attacks on U.S. servicemembers in Iraq);
Karcher v. Islamic Republic of Iran, 396 F. Supp. 3d 12 (D.D.C. 2019) (finding same for seven
attacks on U.S. servicemembers in Iraq). The FSIA terrorism exception, moreover, covers
injuries to Plaintiffs — including Neuman, Goldsmith, Bryars, O’Malley, and Shaffer, see
Compl., ¶¶ 212–23, 250–56, 229–42, 275–89 — that did not result in death. Courts in this
district have generally held that “attempted extrajudicial killings” may still constitute acts of
extrajudicial killings under section 1605A. See Stearns v. Islamic Republic of Iran, 633 F. Supp.
3d 284, 346 (D.D.C. 2022); see also Brown v. Islamic Republic of Iran, 2023 WL 4824740, at *9
(D.D.C. July 27, 2023) (agreeing that extrajudicial killing includes deliberate attempts to kill);
Lee v. Islamic Republic of Iran, 518 F. Supp. 3d 475, 491 (D.D.C. 2021) (concluding that
§ 1605A(a)(1)’s text and “the court’s mandate to construe ambiguities in the FSIA broadly”
allowed jurisdiction for attempts to commit extrajudicial killings); Gill v. Islamic Republic of
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Iran, 249 F. Supp. 3d 88, 99 (D.D.C. 2017) (finding that “extrajudicial killing” occurred under
FSIA where no victims died in attack). The Court agrees.
Even when all five conditions are met, however, a federal court may hear a claim only if
(1) “the foreign state was designated as a state sponsor of terrorism at the time the
act . . . occurred”; (2) “the claimant or victim was, at the time [of] the act[,] . . . . a national of
the United States,” member of the armed forces, or government employee or contractor; and (3)
“in a case in which the act occurred in the foreign state against which the claim has been
brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the
claim.” 28 U.S.C. § 1605(A)(a)(2)(A)(i)–(iii); see also Gration, 2023 WL 5221955, at *22.
Plaintiffs meet two of the three conditions, and the third does not apply. First, Syria and
Iran have been designated as state sponsors of terrorism since 1979 and 1984, respectively. See
Dep’t of State, Bureau of Counterterrorism, State Sponsors of Terrorism (last visited Nov. 10,
2023), https://perma.cc/CBT2-2C87. Second, each Plaintiff (whether a victim or family-member
claimant) satisfies the second condition because all nine victims were either U.S. nationals,
members of the armed forces, or civilian government contractors at the time of the attacks. See
Compl., ¶¶ 200, 208, 213, 230, 237, 244, 251, 261, 266, 270, 276; see also Gration, 2023 WL
5221955, at *22 (claimant and victim need not both satisfy § 1605A(a)(2)(A)(ii)). Finally, as the
attacks occurred in Iraq, not Iran nor Syria, the third condition does not come into play. The
Court can thus easily conclude that Congress has abrogated Iran and Syria’s sovereign immunity
pursuant to 28 U.S.C. § 1605A.
B. Personal Jurisdiction
Next up is personal jurisdiction. Such jurisdiction over a foreign state exists — as to
every claim for relief over which district courts have subject-matter jurisdiction — where service
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has been made under section 1608 of the FSIA. See 28 U.S.C. § 1330(b). Section 1608(a) sets
out four methods by which service may be made, in ranked order. The summons and complaint
may be delivered, first, “in accordance with any special arrangement for service between the
plaintiff and the foreign state or political subdivision,” id., § 1608(a)(1), or, second, “in
accordance with an applicable international convention on service of judicial documents.” Id.,
§ 1608(a)(2). If no such agreements exist, plaintiffs must attempt service through a third
method, which involves sending the requisite documents “by any form of mail requiring a signed
receipt . . . to the head of the ministry of foreign affairs of the foreign state concerned.” Id.,
§ 1608(a)(3). And should that fail, plaintiffs may resort to method four: the Court Clerk may
send the packet to the Secretary of State for transmittal “through diplomatic channels to the
foreign state.” Id., § 1608(a)(4); see also Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1054
(2019).
Plaintiffs have successfully effected service on Iran and Syria. The parties lack a special
service arrangement, and the U.S. is not a signatory to a service convention with either country,
thereby ruling out the first two methods. See Hammons v. Islamic Republic of Iran, 2023 WL
5933340, at *16 (D.D.C. July 24, 2023); U.S. Dep’t of State, Syria Judicial Assistance
Information (last visited Nov. 10, 2023), https://perma.cc/9ESK-7H7T. Plaintiffs attempted
method three by mailing the relevant documents to Iran and Syria’s foreign ministers in their
home country, but did not succeed. See ECF No. 12 (Affidavit). Plaintiffs then turned to the
fourth method. The State Department transmitted the documents to Iran’s Ministry of Affairs
through the Embassy of Switzerland on July 1, 2022, and to Syria’s Ministry of Affairs through
the Embassy of the Czech Republic on July 26, 2022. See Iran Summons Returned Executed;
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Syria Summons Returned Executed. As a result, service on Defendants was finally effective as
of those dates. See 28 U.S.C. § 1608(c)(1).
Mindful that it lacks the authority “to raise the FSIA terrorism exception’s statute of
limitations on behalf of an entirely absent defendant,” Maalouf v. Islamic Republic of Iran, 923
F.3d 1095, 1112 (D.C. Cir. 2019), the Court sees no other preliminary hurdles and proceeds
onward to the merits.
C. Liability
Although section 1605A creates a private right of action, it does not set out guidance on
the substantive bases for liability that determine plaintiffs’ entitlement to damages. Consistent
with guidance from the D.C. Circuit, district courts “may rely on well-established statements of
common law, found in state reporters, the Restatement of Torts, and other respected treatises.”
Fraenkel, 892 F.3d at 353; see also Bettis v. Islamic Republic of Iran, 315 F.3d 325, 333 (D.C.
Cir. 2003) (using Restatement “as a proxy for state common law” in determining FSIA liability).
Here, Plaintiffs assert claims for wrongful death and intentional infliction of severe emotional
distress. See Compl. at 47–48. They also generally allege “personal injury.” Id. at 46. The
Court considers each theory in turn.
First, Plaintiffs seek recovery for economic losses accruing to the estate of Jason Pautsch.
Id. at 47. Given that “acts of terrorism under section 1605A . . . are, by definition, wrongful,”
Shoham v. Islamic Republic of Iran, 2017 WL 2399454, at *18 (D.D.C. June 1, 2017), they may
recover for wrongful death “upon establishing that the defendants caused [the victim’s] death.”
Braun v. Islamic Republic of Iran, 228 F. Supp. 3d 64, 79 (D.D.C. 2017) (citing Restatement
(Second) of Torts § 925 (1965)). Pautsch was killed in an attack involving a SVBIED. See
Compl., ¶ 200. Plaintiffs’ expert found to a “reasonable degree of professional confidence” that
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the attack was conducted by AQI. See Rayburn Report at 48. The suicide bomber driving the
SVBIED was a Tunisian jihadist who had been recruited by AQI, and the SVBIED used in the
attack was “typical” of AQI SVBIED attacks committed in 2008–09. See id. at 49–50.
As mentioned earlier, Rayburn concluded that Iran and Syria played a significant role in
this, and similar, attacks. See id. at 7–8. The specific suicide bomber responsible for the attack
was recruited by an AQI facilitation network based in Syria and Iraq, which was set up under
Syrian dictator Bashar al-Assad’s authority and with the assistance of Syrian government
officials and agencies. See id. at 49, 36–39. From 2003 onward, moreover, Iran gave material
support to Sunni extremist groups to carry out attacks in Iraq, including against U.S. personnel.
See id. at 22.
Rayburn is far from alone in this judgment. The U.S. Treasury has noted that Iran’s
Ministry of Intelligence and Security provided money and weapons to AQI and negotiated
prisoner releases of AQI operatives. See U.S. Dep’t of Treasury, Treasury Designates Iranian
Ministry of Intelligence and Security for Human Rights Abuses and Support for Terrorism (Feb.
16, 2012), https://perma.cc/97K2-D567. The Treasury also noted that a senior officer in the
IRGC-QF sought to sponsor Sunni groups to carry out suicide bombings, including against U.S.
troops. See U.S. Dep’t of Treasury, Treasury Designates Individuals, Entity Fueling Iraqi
Insurgency (Jan. 9, 2008), https://perma.cc/S23V-WCSA. The Court finds such evidence to be
clearly persuasive. It thus concludes that Plaintiffs have sufficiently proven the validity of their
wrongful-death theory of recovery against Defendants.
Next, the family members of the victims injured or killed in AQI or STGI attacks seek to
recover damages for Defendants’ intentional infliction of emotional distress. Under general
principles of tort law, “[o]ne who by extreme and outrageous conduct intentionally or recklessly
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causes severe emotional distress to another is subject to liability for such emotional distress,”
both to the victim and “to a member of such person’s immediate family who is present at the
time.” Estate of Heiser v. Islamic Republic of Iran, 659 F. Supp. 2d 20, 26 (D.D.C. 2009)
(quoting Restatement (Second) of Torts § 46). Because “terrorism is sufficiently extreme and
outrageous” and “intended to inflict severe emotional harm on even those not present at the site
of the act,” Roth v. Islamic Republic of Iran, 78 F. Supp. 3d 379, 400 (D.D.C. 2015), courts in
this district have allowed immediate family members of terrorism victims to state a claim of
IIED even if they were not present at the site of the attack. See, e.g., id. at 401. Plaintiffs have
adequately alleged that they suffered severe emotional distress — namely, severe mental
anguish, extreme emotional pain and suffering, and the loss of their family members’ society,
companionship, comfort, advice, and counsel. See Compl., ¶¶ 206, 223, 289. They, accordingly,
have stated a valid theory of recovery for their IIED claims as to family members.
As to the survivors of the terrorist attacks themselves, they allege only the vague term of
“personal injury” but never articulate a theory of liability — such as assault or battery for this
count. See id. at 46–47; see also Mot. Def. J. at 34–35 (not citing a particular tort); cf. Borochov,
589 F. Supp. 3d at 35–36 (plaintiffs alleging battery and assault); Worley v. Islamic Republic of
Iran, 75 F. Supp. 3d 311, 335–36 (D.D.C. 2014) (same); Mark v. Islamic Republic of Iran, 626 F.
Supp. 3d 16, 33–34 (D.D.C. 2022) (plaintiffs alleging battery). With no legal basis to find
liability, the Court cannot award judgment to these Plaintiffs. See Rimkus v. Islamic Republic of
Iran, 750 F. Supp. 2d 163, 175–76 (D.D.C. 2010) (“[P]laintiffs in § 1605A actions . . . must
articulate the justification for such recovery, generally through the lens of civil tort liability.”);
Mueller v. Syrian Arab Republic, 656 F. Supp. 3d 58, 77–78 (D.D.C. 2023) (requiring plaintiffs
to submit supplemental briefing to articulate justification for recovery through tort liability).
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Only Pautsch’s estate and family members of the other victims may recover under the current
Complaint.
IV. Conclusion
For these reasons, the Court will grant Plaintiffs’ Motion in part and deny it in part. It
will enter default judgment on liability for wrongful death and intentional infliction of emotional
distress. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: December 5, 2023
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