Hansen v. Islamic Republic of Iran

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GEOFFREY HANSEN, et al.,
Plaintiffs,
v. No. 22-cv-477 (DLF)
ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
MEMORANDUM OPINION
U.S. servicemembers, government employees, contractors, and their families brought this
action under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605A(c), against Iran
and the Islamic Revolutionary Guard Corps (“Iran”) for the January 8, 2020 missile attack on the
al-Asad airbase in Iraq. As a result of the attack, the plaintiffs suffered serious injuries, and
tragically, one servicemember took his own life. Because the attack does not qualify as an
“extrajudicial killing” nor as “aircraft sabotage” under the “state-sponsor-of-terrorism exception”
of the FSIA, 28 U.S.C. § 1605A, Iran is immune from suit. Accordingly, the Court must deny the
plaintiffs’ Motion for Entry of Default Judgment, Dkt. 20, for lack of subject-matter jurisdiction.
I. BACKGROUND 1
On January 3, 2020, the United States launched a drone strike near the Baghdad
International Airport that killed Major General Qassem Soleimani, a senior Iranian military
1
The Court’s factual findings are drawn from the plaintiffs’ declarations and reports submitted in
support of their motion for default judgment. See Reed v. Islamic Republic of Iran, 845 F. Supp.
2d 204, 212 (D.D.C. 2012) (“In FSIA default judgment proceedings, the plaintiff may establish
proof by affidavit.”). The Court granted the plaintiffs’ Renewed Motion for Leave to File
Documents Under Seal, Dkt. 23, and will cite only to the publicly available redacted record.
official. See Expert Report of Robert Greenway at 9 (“Greenway Report”), Dkt. 20-1. 2 Following
the attack, Iran’s Supreme Leader Ayatollah Khamenei “promised to exact harsh revenge.” Id. at
10 (cleaned up). The promised retaliation came five days later. In the early hours of January 8,
2020, the Islamic Revolutionary Guard Corps (“IRGC”), a branch of the Iranian armed forces,
fired at least eleven ballistic missiles at the Ayn al-Asad airbase. See Press Brief by Sec’y Esper
and Gen. Milley at 2, Dkt. 20-2; Mot. for Default J. at 1, Dkt. 20. The IRGC also fired another
missile that hit Erbil International Airport, approximately 253 miles away from al-Asad airbase.
See id.; Pls.’ Suppl. Mem. in Supp. of Mot. for Default J. (“Pls.’ Suppl. Mem.”) at 3, Dkt. 21-1.
The al-Asad airbase housed numerous U.S. servicemembers, employees, and contractors.
During the attack, some U.S. servicemembers took cover in indirect fire shelters (“IDFs”) while
others continued to pilot drones from a ground control station (“GCS”). See, e.g., Decl. of Toni
Alexander ¶ 2, Dkt. 22-4; Decl. of Shanerria Barber ¶ 3, Dkt. 22-4. One servicemember who took
refuge in an IDF describes how the “powerful” impact of the missiles “shook the ground beneath”
him and “tossed” him “around like a rag doll.” Decl. of Jeremy Winkler ¶ 4, Dkt. 22-2. Another
explains how the missiles “turned the whole sky red” and how “fires broke out” on the base as
“3,000 pounds of warhead” rained down. Decl. of Brittany Norfleet ¶ 4, Dkt. 22-1. The blast
waves were “so strong that [the] whole [IDF] shelter shifted” and “crack[ed].” Decl. of Andrew
Jenkins ¶ 5, Dkt. 22-1. Servicemembers “tried to fit as many people as possible into the remaining
IDF shelters, but they “were packed so tightly that many of [them] could only get partially inside.”
2
Mr. Greenway, an “adjunct fellow at [the] Hudson Institute,” Greenway Report at 1, prepared
his report after “review[ing] materials and documents related to this case,” id. at 3. He
previously “served as a senior intelligence officer at the Defense Intelligence Agency, and [he is]
a combat veteran of the Army Special Forces.” See id. at 2. He was also a senior director of the
National Security Council’s Middle Eastern and North African affairs directorate and “a
principal architect of the Abraham Accords.” Id.
2
Decl. of Thomas Feldschneider ¶ 6, Dkt. 22-4. Those piloting drones during the attack could not
“keep the GCS door closed,” and “each shockwave rattled the GCS creating huge overpressure.”
Decl. of Shanerria Barber ¶ 3.
The attack on al-Asad caused numerous injuries. Servicemembers reported perforated
eardrums, cracked teeth, and bleeding eyes, among other things. See, e.g., Decl. of Anthony
Panchoo ¶ 3, Dkt. 22-1; Decl. of Nicolaus Trivelpiece ¶ 6, Dkt. 22-3; Decl. of Jaron Schneider
¶ 10, Dkt. 22-2. Many servicemembers—including all the plaintiffs in this case—were
subsequently diagnosed with traumatic brain injuries. See, e.g., Decl. of Toni Alexander ¶ 9; Decl.
of Shanerria Barber ¶ 4; Decl. of Badekemi Biladjetan ¶ 4, Dkt. 22-1. The traumatic brain injuries
have caused tinnitus and migraines, see Decl. of Toni Alexander ¶ 9; chronic pain, see Decl. of
Badekemi Biladjetan ¶ 8; and hearing loss, speech impairment, and nausea, among other
conditions, Decl. of Jeremy Winkler ¶ 6, Dkt. 22-2. “TBI sustained during combat operation
significantly increases the risk for co-occurring condition[s] like PTSD” and depression, and one
servicemember, Sergeant Jason Quitugua, developed post-traumatic stress disorder and mild
depression after the attack. Report of Heechin Chae at 2–3 (“Chae Report”), Dkt. 20-3. In October
2021, twenty-one months after the attack, Sergeant Quitugua took his own life. See Decl. of
Kaedinn Quitugua ¶ 2, Dkt. 22-3.
U.S. servicemembers, employees, and contractors who incurred traumatic brain injuries in
the al-Asad attack and their immediate family members brought this suit against Iran and the IRGC
(together, “Iran”). See Compl. ¶ 10, Dkt. 1. They sued under the FSIA’s state-sponsor-of-
terrorism exception and seek compensatory and punitive damages arising from injuries sustained
during the attack and subsequent pain and suffering. See id. at 60. After the plaintiffs served Iran
and Iran failed to respond within the allotted timeframe, the plaintiffs moved for entry of default.
3
See Mot. for Entry of Default at 1, Dkt. 17. The Clerk of Court declared Iran in default, and the
plaintiffs moved for default judgment. See Mot. for Default J. at 1.
On October 19, 2023, the Court stayed the case pending the D.C. Circuit’s decision in
Borochov v. Islamic Republic of Iran, No. 22-7058, which presented the issue whether an
attempted killing qualifies as an “extrajudicial killing” under the “state-sponsor-of-terrorism
exception” of the FSIA. The D.C. Circuit answered this question in the negative. It held that a
perpetrator does not commit an act of extrajudicial killing under the FSIA if he “did not kill
anyone.” Borochov v. Islamic Republic of Iran, 94 F.4th 1053, 1060 (D.C. Cir. 2024). Further, a
perpetrator does not provide “material support and resources for” an extrajudicial killing unless
such a killing has occurred. Id. at 1064.
Following the Circuit’s decision, the plaintiffs argue that Sergeant Quitugua’s “death by
suicide” was “a completed, not attempted, act of extrajudicial killing.” 3 Pls.’ Status Report at 2,
Dkt. 21. They also raised a new, alternative basis for jurisdiction: namely, that Iran’s attacks on
the al-Asad airbase and Erbil International Airport together constituted “aircraft sabotage” under
28 U.S.C. § 1605A(a). Id.
II. LEGAL STANDARDS
Under the FSIA, a plaintiff can obtain a default judgment by “establish[ing] his claim or
right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). “This standard
mirrors . . . Federal Rule of Civil Procedure 55(d) governing default judgments against the U.S.
government.” Owens v. Republic of Sudan (Owens I), 864 F.3d 751, 785 (D.C. Cir. 2017). Though
3
In their initial brief, which was filed before the D.C. Circuit issued its decision in Borochov, the
plaintiffs also argued that the “extrajudicial killing” was either Iran’s attempted “killing” at the
al-Asad airbase or Sergeant Quitugua’s suicide in October 2021. See Mot. for Default J. at 11.
The plaintiffs have since conceded their attempt argument and rely exclusively on the suicide as
the basis for an “extrajudicial killing.” See Pls.’ Status Report at 2.
4
this requirement “provides foreign sovereigns a special protection” before a court reaches default
judgment, Jerez v. Republic of Cuba, 775 F.3d 419, 423 (D.C. Cir. 2014), “neither Rule [55(d)]
nor § 1608(e) relieves the sovereign from the duty to defend cases,” Com. Bank of Kuwait v.
Rafidain Bank, 15 F.3d 238, 242 (2d Cir. 1994) (internal citations omitted). In fact,
“[u]ncontroverted factual allegations that are supported by admissible evidence are taken as true.”
Warmbier v. Democratic People’s Republic of Korea, 356 F. Supp. 3d 30, 42 (D.D.C. 2018); see
also Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 82 (D.D.C. 2006). Default judgments
under § 1608(e) may rely on the plaintiffs’ affidavits and declarations. Owens I, 864 F.3d at 788–
89. “[T]he Court must still determine that an exception to immunity applies and that the plaintiff
has a sufficient legal and factual basis for [her] claims.” Abedini v. Gov’t of Islamic Republic of
Iran, 422 F. Supp. 3d 118, 128 (D.D.C. 2019).
III. ANALYSIS
A. Foreign Sovereign Immunities Act
This Court has “original jurisdiction without regard to amount in controversy of any
nonjury civil action against a foreign state . . . as to any claim for relief in personam with respect
to which the foreign state is not entitled to immunity.” 28 U.S.C. § 1330(a). In other words, the
Court has jurisdiction if (1) the plaintiff does not seek a jury trial; (2) the defendant is a foreign
state; (3) the action is in personam; and (4) an exception to sovereign immunity applies. The first
three conditions are undoubtedly satisfied here. First, the plaintiffs “do not seek a jury trial,” see
Mot. for Default J. at 8, and as “all federal appellate courts which have considered the
issue . . . have held,” “jury trials are not available in suits brought under the [FSIA],” Universal
Consol. Cos. v. Bank of China, 35 F.3d 243, 245 (6th Cir. 1994). Accord Valore v. Islamic
Republic of Iran, 700 F. Supp. 2d 52, 65 (D.D.C. 2010). Second, Iran is a foreign state, and the
5
IRGC is an entity of the Iranian state. Third, this action is in personam because the Court will
exercise “personal jurisdiction over the defendants as legal persons, rather than property.” Valore,
700 F. Supp. 2d at 65.
That leaves the fourth requirement: that an exception to sovereign immunity applies. The
FSIA, which codifies the common-law principle that sovereign entities are presumptively immune
from suit, provides that “foreign state[s] shall be immune from the jurisdiction of the courts of the
United States and the States” unless a statutorily enumerated exception applies. 28 U.S.C. § 1604;
see Doe v. Taliban, 101 F.4th 1, 5 (D.C. Cir. 2024). One such exception applies to acts by state
sponsors of terrorism. See 28 U.S.C. § 1605A(a)(1). Under the “state-sponsor-of-terrorism
exception,” sovereign immunity is abrogated when, among other requirements not relevant here,
“(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.’” Anderson v. Islamic
Republic of Iran, 753 F. Supp. 2d 68, 79 (D.D.C. 2010) (quoting 28 U.S.C. § 1605A(a)(1)).
The plaintiffs have satisfied the first three elements of this exception. First, the plaintiffs
seek money damages. See Compl. at 60. Second, the action and the Clerk of Court’s entry of
default are against Iran, a “foreign state,” 28 U.S.C. § 1603(a), and the IRGC, which is “so closely
bound up with the structure of the [Iranian] state” to “be considered as the foreign state itself,”
Holladay v. Islamic Republic of Iran, 406 F. Supp. 3d 55, 59 (D.D.C. 2019) (cleaned up). See
Clerk’s Entry of Default, Dkt. 18. Third, the suit arises from “personal injury or death” incurred
during and subsequent to Iran’s January 2020 attack. See Compl. ¶¶ 382–394.
But the plaintiffs have failed to satisfy the final two requirements of the exception. They
have not demonstrated that a predicate act—i.e., an “act of torture, extrajudicial killing, aircraft
6
sabotage, [or] hostage taking”—“caused” their alleged harms. 28 U.S.C. § 1605A(a)(1). More
specifically, as discussed below, they have not shown that Iran’s attack on January 8, 2020
constituted either an “extrajudicial killing” or “aircraft sabotage.” As such, the terrorism exception
does not apply, and the Court lacks subject-matter jurisdiction.
B. Extrajudicial Killing
28 U.S.C. § 1605A withdraws immunity for a foreign state’s “act of . . . extrajudicial
killing.” Borochov 4 forecloses relief based on attempted killings, so the only question before the
Court is whether Sergeant Quitugua’s suicide qualifies as an “extrajudicial killing.” Based on the
FSIA’s plain text and background principles of immunity, it does not.
Starting with the text, the FSIA gives the term “extrajudicial killing” “the [same] meaning”
as “in section 3 of the Torture Victim Protection Act of 1991.” 28 U.S.C. § 1605A(h)(7). That
statute in turn defines “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 people.” Id. § 1350 note. The ordinary meaning of a
“killing” is an act “[t]o end life.” Kill, Black’s Law Dictionary (10th ed. 2014); see Killing, The
Oxford English Dictionary (2023) (“That kills or deprives of life.”); Kill, Merriam-Webster’s
Collegiate Dictionary 642 (10th ed. 1993) (“[T]o deprive of life.”). And the word “deliberated”
means “carefully considered,” Deliberated, Oxford English Dictionary (2023), or “[i]ntentional;
4
The plaintiffs request that “these proceedings be stayed until the Borochov plaintiffs have
exhausted all appellate process.” Status Report at 3. The D.C. Circuit issued the mandate in
Borochov on May 3, 2024. See Mandate, Borochov v. Islamic Republic of Iran, No. 22-7058
(D.C. Cir. May 3, 2024). Although the Borochov plaintiffs have not, to the Court’s knowledge,
petitioned for a writ of certiorari, the Court will not exercise its “broad discretion to stay a case
pending the outcome of proceedings in another forum.” Garcia v. Acosta, 393 F. Supp. 3d 93,
110 (D.D.C. 2019); cf. Pietersen v. U.S. Dep’t of State, No. 22-cv-3544, 2024 WL 1239706, at
*9 (D.D.C. Mar. 21, 2024). And in any event, the Court is “obligated to follow controlling
circuit precedent.” United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997).
7
premediated; fully considered,” Deliberate, Black’s Law Dictionary (10th ed. 2014). To simplify,
an extrajudicial killing under the FSIA occurs when a foreign state, without judicial authorization,
intentionally ends a human life. As the D.C. Circuit put it, “the plain meaning of the statutory
text” is that “[t]he word ‘killing’ refers to an action resulting in the death of another.” Borochov,
94 F.4th at 1061.
Further, the principle of noscitur a sociis—“a word is known by the company it keeps”—
supports the interpretation that the foreign state must be the direct cause of another person’s death.
United States v. Yates, 574 U.S. 528, 543 (2015). Under the noscitur canon, to “avoid ascribing
to one word a meaning so broad that it is inconsistent with its accompanying words,” a court will
“cabin the contextual meaning of that term” based on its “immediately surrounding” neighboring
terms. Id. Here, “extrajudicial killing” appears in a list of acts—i.e., “torture, extrajudicial killing,
aircraft sabotage, hostage taking.” 28 U.S.C. § 1605A(a)(1). The neighboring terms all require a
perpetrator to act directly on an object or against another person in a harmful manner. “Torture”
requires “any act, directed against an individual in the offender’s custody or physical control,” 28
U.S.C. § 1350 note; “aircraft sabotage” includes “an act of violence against a person on board an
aircraft in flight if that act is likely to endanger the safety of that aircraft” or destruction of “an
aircraft in service,” Convention for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation art. 1, § 1, Sept. 23, 1971, 974 U.N.T.S. 177, 178; and “hostage taking” occurs when
“[a]ny person who seizes or detains and threatens to kill, to injure or to continue to detain another
person . . . in order to compel a third party . . . to do or abstain from doing any act as an explicit or
implicit condition for the release of the hostage,” International Convention Against the Taking of
Hostages art. 1, § 1, Dec. 17, 1979, 1316 U.N.T.S. 205, 207. An “extrajudicial killing” is thus best
8
understood in this narrower sense: namely, a foreign state must, without authorization, take an
action against another person that directly causes his death.
In general, death by suicide does not fall under this definition. Suicide is “a voluntary,
intentional self-destruction” by the victim’s own hand. Dent v. Va. Mut. Benefit Life Ins. Co., 226
A.2d 166, 167 (D.C. 1967). It is a volitional “taking [of] one’s own life,” Suicide, Black’s Law
Dictionary (10th ed. 2014), and usually is a conscious choice to “put[] an end to [one’s] own
existence,” 4 William Blackstone, Commentaries *189. In tort law, “[t]he act of suicide generally
is considered to be a deliberate, intentional, and intervening act which precludes a finding that a
given defendant is, in fact, responsible for the decedent’s death.” District of Columbia v. Peters,
527 A.2d 1269, 1275 (D.C. 1987). As such, one usually cannot recover in negligence for the
suicide of another. In the prototypical case, a suicide will not qualify as an “extrajudicial killing”
under the FSIA because it is an “intervening act” breaking the direct link between a foreign state’s
act and the decedent’s death.
That said, the Court’s definition does not foreclose suicide from qualifying as an
“extrajudicial killing” in a rare circumstance. If, for example, a foreign state intentionally compels
a suicide, the decedent’s death might qualify as an “extrajudicial killing.” A variation on the facts
of Kar v. Islamic Republic of Iran provides an illustrative example. In that case, Siamak Pourzand,
an Iranian journalist and critic of the regime, was arrested and held in detention. Kar v. Islamic
Republic of Iran, No. 19-cv-2070, 2022 WL 4598671, at *2 (D.D.C. Sept. 30, 2022). After
international pressure, Iran released Siamak to home detention but kept him under “constant
surveillance.” Id. at *3. Due to his conditions of confinement, Siamak’s mental health suffered
severely, and he eventually “committed suicide by jumping off his balcony.” Id. Judge Bates
concluded that Iran’s treatment of Siamak amounted to “hostage taking” and “torture” but not an
9
“extrajudicial killing.” Id. at *7–15. He reasoned that the plaintiffs provided insufficient
“evidence to conclude that Iran imposed conditions of confinement on Siamak with the intention
of forcing him to commit suicide.” Id. at *15 (emphasis added). Had the Kar plaintiffs cleared
that evidentiary threshold, however, one could conclude that Iran intentionally acted to create
conditions of confinement that coerced Siamak into taking his own life. See id. at *15 n.14 (“The
Court need not, and does not, conclude that a suicide can never constitute an extrajudicial killing
to conclude that the suicide in this case cannot be considered an extrajudicial killing.”). This
incorporation of suicide into “extrajudicial killing” is, of course, a narrow exception because most
suicides are volitional acts of a decedent that break the causal chain between a foreign state’s act
and a decedent’s death. See Peters, 527 A.2d at 1275.
This exception is consistent with background principles of tort and criminal law. Suicide
is usually an intervening break in the causal chain, but an “important exception” arises in tort when
a defendant’s conduct “produces an abnormal mental condition which results in an uncontrollable
impulse to commit suicide.” 5 Id. at 1275–76; see Wash. Metro. Area Transit Auth. v. Johnson,
726 A.2d 172, 177 n.8 (D.C. 1999). A similar principle appears in the criminal law. Although
“[t]he common law recognized suicide as a felony,” Model Penal Code § 210.5 cmt. 1 (Am. L.
Inst. 1980), courts have recognized that an individual may be criminally liable for homicide if he
5
The plaintiffs encourage the Court to adopt the test adopted in Kimberlin v. DeLong, 637
N.E.2d 121, 126–28 (Ind. 1994). In that case, the Indiana Supreme Court held that “an action
may be maintained for death or injury from suicide or suicide attempt where a defendant’s
willful tortious conduct was intended to cause a victim physical harm and where the intentional
tort is a substantial factor in bringing about the suicide.” Id. at 128. Applying this rule, it held
that plaintiffs could recover for a suicide “occurring more than four years after [an] explosion”
caused by defendant. Id. To the Court’s knowledge, few, if any, other courts have adopted this
test, and the Court will not apply it here.
10
“engaged in the commission of a felony . . . and inflicts upon his victim both physical and mental
injuries, the natural and probable result of which would render the deceased mentally irresponsible
and suicide followed.” Stephenson v. State, 179 N.E. 633, 649 (Ind. 1932); see United States v.
Hamilton, 182 F. Supp. 548, 551 (D.D.C. 1960) (same). The Model Penal Code has also advised
that a “person may be convicted of criminal homicide for causing another to commit suicide only
if he purposely causes such suicide by force, duress or deception.” Model Penal Code § 210.5(1).
Criminal penalties are thus appropriate only “where the actor actively participates in inducing the
suicide of another.” Id. cmt. 4. From these tort- and criminal-law analogues, the Court gleans a
similar principle: a defendant is liable for an act that creates conditions inexorably leading to
suicide.
That is not the case here. To start, the weight of the evidence suggests that Iran did not
intend to compel or induce Sergeant Quitugua’s suicide. Rather, it fired eleven 3,000-pound
missiles at the Al-Asad airbase, likely intending death from the missiles themselves. See Decl. of
Thomas Feldschneider ¶ 3; Decl. of Jonathan Stark ¶ 2, Dkt. 22-3. The missile attack left
servicemembers “worried that [they] would die.” Decl. of Jonathan Stark ¶ 2. In the immediate
aftermath of the attack, “IRGC Aerospace Force [C]ommander General Amir Ali Hajizadeh”
bragged that “‘many’ American soldiers were killed by Iran’s missiles.” Greenway Report ¶ 64.
The Commander was (fortunately) incorrect, but his statement further supports the inference that
Iran’s goal was to kill or seriously injure Americans directly. The plaintiffs have not shown that
Iran fired missiles with the “deliberated” intention of servicemembers taking their own lives.
Nor have the plaintiffs presented any evidence that the intentional missile barrage carried
a natural and foreseeable effect of inducing a traumatic brain injury that led to suicide. See Colvin
v. Syrian Arab Republic, 363 F. Supp. 3d 141, 159 (D.D.C. 2019) (“[A] plaintiff must prove that
11
the consequences of the foreign state’s conduct were reasonably certain (i.e., more likely than not)
to occur.” (cleaned up)); cf. Model Penal Code § 210.5 cmt. 4 (“Criminal liability is limited to
purposeful conduct on the ground that merely creating the risk that another will commit suicide
would cast the net of liability too wide.”). Sergeant Quitugua’s suicide was temporally attenuated
from the al-Asad attack; his death occurred in October 2021—over a year and a half after the
attack. Decl. of Kaedinn Quitugua ¶ 2; cf. Craig v. District of Columbia, 881 F. Supp. 2d 26, 35
(D.D.C. 2012) (“[T]he passage of time weakens or destroys the causal inference.”). In addition, a
twenty-one-month gap is somewhat at odds with Borochov, which held that an “extrajudicial
killing” requires a completed killing. 94 F.4th at 1061. It is difficult to say here that Iran’s attack
on January 8, 2020 did not end until October 2021 when Sergeant Quitugua’s death occurred.
Indeed, on the day of the al-Asad attack, Iran’s Foreign Minister Mohammad Javad Zarif stated,
“the strikes concluded Tehran’s response” to the death of Soleimani. Greenway Report at 11
(cleaned up).
Dr. Heechin Chae’s 6 medical report highlights additional factors that could have
contributed to Sergeant Quitugua’s suicide. Through no fault of his own, Sergeant Quitugua was
thrust back into service following the attack, “return[ing] to duty including flight operations.”
Chae Report at 2. In Dr. Chae’s view, Sergeant Quitugua “returned to duty too soon without follow
up and clearance by a psychologist” and was forced to “work longer and more intense hours to
cover the shortage of personnel due to many fellow servicemembers being medically evaluated
6
Dr. Chae, M.D., has twenty-three years of medical practice and “board certifications in
Physical Medicine & Rehabilitation, in Brain Injury Medicine, and in Pain Medicine.” Chae
Report at 1. His “professional experience includes over 10 years as the Director of Traumatic
Brain Injury Department/Intrepid Spirit Center” at Fort Belvoir Community Hospital from 2011
to 2022. Id. He also has treated over 8,000 servicemembers who “sustained or suspected to
sustain TBI during combat or while in training.” Id.
12
due to injuries.” Id. Such “brain exposure to long hours of intense operation . . . is contraindicated
for patients who just sustained TBI” and is also associated with “high incidence of long
term/permanent symptoms including headache, cognitive impairment, sensory integration
disorder, depression/anxiety, PTSD, and other psychological conditions.” Id. Based on Dr. Chae’s
expertise, it is reasonable to conclude that Sergeant Quitugua’s necessary but immediate return to
service could have exacerbated his traumatic brain injury in a manner deleterious to his mental
health. Cf. Durphy v. Kaiser Found. Health Plan, 698 A.2d 459, 467 (D.C. 1997) (“In medical
malpractice cases . . . contributory negligence is a valid defense if the patient’s negligent act
concurs with that of the physician and creates an unreasonable risk of improper medical treatment.”
(cleaned up)).
The Court recognizes that Dr. Chae opined that “suicide was a foreseeable result of th[e]
attack,” Chae Report at 3, but this is not dispositive. For one, the plaintiffs have not shown that
other factors mentioned in Dr. Chae’s report did not contribute to Sergeant Quitugua’s death. See
Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 127 (D.C. Cir. 2012) (“The plaintiff must prove,
as a result of the defendant’s action, the decedent could not have decided against and refrained
from killing himself.” (cleaned up)). For another, mere foreseeability is not sufficient in the
sovereign-immunity context. To be sure, the al-Asad attack was, at the very least, a “but for” cause
contributing to Sergeant Quitugua’s death. But D.C. Circuit authority requires the Court to
“narrowly construe[]” “[e]xplicit waivers of sovereign immunity . . . in favor of the sovereign” and
“not enlarge[]” waivers “beyond what the statutory language requires.” Borochov, 94 F.4th at
1062 (cleaned up). On the Court’s reading of the FSIA, an “extrajudicial killing” requires a more
direct causal link—above and beyond “but for” cause—between a foreign state’s act and a
resulting death. In a rare case, it is possible that a suicide could qualify under this construction as
13
“uncontrollable impulse” or “induced” death, but Sergeant Quitugua’s does not. As such, Sergeant
Quitugua’s suicide cannot serve as a basis for jurisdiction under the FSIA. 7
C. Aircraft Sabotage
Following the D.C. Circuit’s Borochov decision, the plaintiffs present an alternative basis
for jurisdiction under the FSIA. They contend that Iran’s successful firing of eleven ballistic
missiles at the al-Asad airbase and one missile at Erbil International Airport qualify as “act[s]
of . . . aircraft sabotage” under 28 U.S.C. § 1605A(a)(1). See Pls.’ Suppl. Mem. at 3. The Court
disagrees.
In the FSIA, Congress gave “the term ‘aircraft sabotage’ . . . the meaning given [to] that
term in Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of
Civil Aviation.” 28 U.S.C. § 1605A(h)(1). Article 1 of the Convention defines “aircraft sabotage”
as follows:
1. Any person commits an offence if he unlawfully and intentionally
(a) performs an act of violence against a person on board an aircraft in
flight if that act is likely to endanger the safety of that aircraft; or
(b) destroys an aircraft in service or causes damage to such an aircraft
which renders it incapable of flight or which is likely to endanger its
safety in flight; or
(c) places or causes to be placed on an aircraft in service, by any means
whatsoever, a device or substance which is likely to destroy that
aircraft, or to cause damage to it which renders it incapable of flight,
or to cause damage to it which is likely to endanger its safety in
flight; or
(d) destroys or damages air navigation facilities or interferes with their
operation, if any such act is likely to endanger the safety of aircraft
in flight; or
(e) communicates information which he knows to be false, thereby
endangering the safety of an aircraft in flight.
7
Moreover, the FSIA’s “extrajudicial killing” exception, 28 U.C.C. § 1605A(a)(1),
“require[s] . . . a showing of proximate cause.” Kilburn v. Socialist People’s Libyan Arab
Jamahiriya, 376 F.3d 1123, 1128 (D.C. Cir. 2004) (cleaned up). And only “a completed killing”
counts as an “extrajudicial killing.” Borochov, 94 F.4th at 1061. Sergeant Quitugua’s “killing”
was not “complete” until October 2021, well after most of the plaintiffs’ injuries arose.
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2. Any person also commits an offence if he:
(a) attempts to commit any of the offences mentioned in paragraph 1 of
this Article; or
(b) is an accomplice of a person who commits or attempts to commit
any such offence.
Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation
(“Convention”) art. 1, supra, 974 U.N.T.S. at 178–79. Article 4 of the same Convention provides
that the treaty “shall not apply to aircraft used in military, customs or police services.” Id. art. 4,
§ 1. As its very name suggests, the Convention does not cover the sabotage of noncivilian military
aircrafts or military personnel. See Strange v. Islamic Republic of Iran, No. 14-cv-435, 2016 WL
10770678, at *6 n.2 (D.D.C. May 6, 2016) (“‘[A]ircraft sabotage’ as defined in the FSIA actually
only pertains to civilian aircraft.”). As such, the attacks on the bases at al-Asad and Erbil
International Airport cannot qualify as acts of “aircraft sabotage.”
The plaintiffs resist this conclusion. They argue that the FSIA exclusively incorporated
Article 1 of the Convention but made no mention of incorporating other provisions like Article 4,
which limits the Convention to civil aviation. In their view, “[i]f the drafters of the Convention
had intended to alter the definition of aircraft sabotage” in Article 1, “they would have included
the limitations of Article 4 § 1 in that definition.” Pls.’ Suppl. Mem. at 5. In other words, Article
4’s exclusion of military services reflects a limitation on “the obligations of the treat[y] states”
under the Convention, not a limitation on Article 1’s definition of “aircraft sabotage” as
incorporated into the FSIA. Id.
But typically, when “Congress employs a term of art obviously transplanted from another
legal source, it brings the old soil with it.” George v. McDonough, 596 U.S. 740, 746 (2022)
(cleaned up). Here, Congress was explicit that an “aircraft sabotage” “has the meaning given that
term in Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of
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Civil Aviation.” 28 U.S.C. § 1605A(h)(1). And the “meaning given” to “aircraft sabotage” in
Article 1 is plainly limited by Article 4. Besides excluding military aviation from the Convention’s
scope, Article 4 also limits Article 1’s definition of “aircraft sabotage” based on, among other
things, the location of an aircraft’s take-off or landing and the categories of damaged air-navigation
facilities. See, e.g., Convention art. 4, § 2. Interpreting Article 1 of the Convention unconstrained
from the limitations set forth in the rest of the Convention would bring only some clumps of “the
old soil” to the FSIA while inexplicably leaving others behind. George, 596 U.S. at 746. It would
also be odd to ignore Article 4’s focus on civil aviation when Congress acknowledged that it was
incorporating a definition of “aircraft sabotage” from a Convention on “Civil Aviation.” 28 U.S.C.
§ 1605A(h)(1) (emphasis added). And given that the FSIA’s grant of sovereign immunity is
“[s]ubject to existing international agreements to which the United States is a party,” the Court is
hesitant to read out from the FSIA an important limitation from one such treaty. 28 U.S.C. § 1604;
see Borochov, 94 F.4th at 1062 (“The courts . . . should not open the door to litigation against
foreign governments that the Political Branches have not clearly authorized.”).
Far from showing that Iran intended to hit civilian targets on January 8, 2020, the
overwhelming evidence shows that Iran targeted military aircrafts and personnel. Al-Asad airbase
was a military base “host[ing] American and coalition troops.” Press Brief at 2. Any damaged
aircrafts or facilities or injured individuals were involved “in military . . . services.” Convention
art. 4, § 1. Indeed, the day after the strike, an Iranian commander lauded Iran’s strike on “one of
the United States’ most important bases.” Greenway Report at 11.
Moreover, Erbil International Airport also served, at least in part, as a military base. See
id. at 10 (describing Erbil as one of “two bases” Iran attacked). And Iranian and American military
leaders alike described it as such. See id. at 11 (noting IRGC Aerospace Force Commander
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General Amir Ali Hajizadeh claimed that Iran’s “ballistic missile strikes on the al-Asad and Erbil
bases . . . were aimed at damaging the American ‘military machine’ and not inflicting US
casualties”); Press Brief at 2 (Secretary of Defense Mark Esper characterizing “Irbil” as one of
“two Iraqi bases” Iran targeted). Against this evidence, the plaintiffs provide scant support for
their assertion that Iran attempted or committed actual harm to civilians, civilian aircrafts, or civil-
aviation facilities at Erbil Airport. Instead, in a footnote, they note that “[i]n late 2019 to early
2020, Erbil International Airport hosted civilian aircraft travelling internationally to and from
Istanbul, Doja, Cairo, Damascus, Beirut, Aleppo, Dubai, Cologne, and Frankfurt, among other
locations.” Pls.’ Suppl. Mem. at 5 n.2. But this representation, standing alone, does not provide
sufficient evidence of Iran’s intent to damage or success in damaging civil aviation at the Erbil
Airport, as the FSIA requires.
Further, even if the plaintiffs could prove with additional investigation that Iran committed
an act of “aircraft sabotage” at Erbil Airport, see Status Report at 2, they cannot show that
“injur[ies]” from the al-Asad attack were “caused by” that act of sabotage at Erbil Airport. 28
U.S.C. § 1605A(a)(1). It is unimaginable that the missiles launched at Erbil Airport were a
“substantial factor” in the injuries the plaintiffs sustained 253 miles away at al-Asad airbase. See
Richard v. Bell Atl. Corp., 209 F. Supp. 2d 23, 27 n.2 (D.D.C. 2002) (“The Court has the authority
to take judicial notice of . . . the distance between two locations.”). For this reason, the Court
denies the plaintiffs’ request for additional time to supplement the record.
Opposing this conclusion, the plaintiffs invoke Van Beneden v. Al-Sanusi, 709 F.3d 1165(D.C. Cir. 2013). In their view, the Court must consider “the totality of [Iran’s] violence in a single
day,” id. at 1168, rather than treat Iran’s attacks on al-Asad and Erbil as separate “acts” for
purposes of § 1605A(a)(1), see Pls.’ Suppl. Mem. at 6. But Van Beneden is inapposite because it
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addressed the FSIA’s “act or incident” relation-back requirements, not the meaning of the term
“act” in the state-sponsor-of-terrorism exception. See 709 F.3d at 1168. Moreover, Van Beneden
relied, at least in part, on the distinction between an “incident”—“refer[ring] to the totality of that
terrorist’s violence in a single day”—and an “act”—“refer[ring] to a single terrorist pulling the
trigger a single time.” Id. Although both “act” and “incident” appear in the FSIA’s relation-back
requirements, only the word “act” appears in the state-sponsor-of-terrorism exception. See
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012)
(“The expression of one thing implies the exclusion of others (expressio unius est exclusio
alterius).”). From this, the Court draws a negative inference that the FSIA contains a waiver of
immunity for discrete “acts” of terrorism though not necessarily sprawling “incidents.” This
inference is consistent with the D.C. Circuit’s guidance that “ambiguities in [the FSIA’s] statute
of limitations” may be interpreted “flexibly and capaciously” but “[e]xplicit waivers of sovereign
immunity are narrowly construed in favor of the sovereign and are not enlarged beyond what the
statutory language requires.” Borochov, 94 F.4th at 1062 (cleaned up). Indeed, the D.C. Circuit
has “never interpreted the FSIA’s jurisdictional requirements so flexibly.” Id. at 1065.
* * *
By its plain terms, the FSIA contains a clear gap in the recovery it affords. The Act allows
survivors of hostage takings, aircraft hijackings, and torture to recover for their injuries. But it
does not allow survivors of attacks like those here to recover for their injuries unless a death has
occurred. As a result, the plaintiffs—victims of Iran’s January 8, 2020 near-deadly attack on Iraq’s
al-Asad airbase—cannot recover damages for serious injuries they sustained while honorably and
bravely engaged in military service to our country. The Court is deeply sympathetic to the plight
of the victims, but it must apply the FSIA as written.
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CONCLUSION
For the foregoing reasons, Iran’s January 8, 2020 attack does not qualify as an act of
“extrajudicial killing” nor “aircraft sabotage” under the state-sponsor-of-terrorism exception of the
FSIA. Iran is thus immune from suit, and the Court lacks jurisdiction. Accordingly, the Court
will deny the Motion for Default Judgment, Dkt. 20, and dismiss this action. A separate order
consistent with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
June 17, 2024
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