Rachel Fraenkel, et al v. Islamic Republic of Iran, et al

Filing

OPINION [1735019] filed (Pages: 25) for the Court by Judge Edwards. [17-7100]

USCA Case #17-7100

Document #1735019

Filed: 06/08/2018

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 26, 2018

Decided June 8, 2018
No. 17-7100

RACHEL DEVORA SPRECHER FRAENKEL, INDIVIDUALLY, AS
PERSONAL REPRESENTATIVE OF THE ESTATE OF YAAKOV
NAFTALI FRAENKEL, AND AS THE NATURAL GUARDIAN OF
PLAINTIFFS A.H.H.F., A.L.F., N.E.F., AND S.R.F., ET AL.,
APPELLANTS
v.
ISLAMIC REPUBLIC OF IRAN, MINISTRY OF FOREIGN AFFAIRS,
ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01080)

Robert J. Tolchin argued the cause for appellants. With
him on the briefs was Meir Katz. Rachel E. Weiser entered an
appearance.
Harry Phillips, Student Counsel, argued the cause as
amicus curiae to present arguments in support of portions of
the District Court=s orders at issue on appeal. With him on the
brief were Erica J. Hashimoto, appointed by the court, and
Joseph Flanagan and Vetone Ivezaj, Student Counsel.

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Before: GRIFFITH, Circuit Judge, and EDWARDS and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: On June 12, 2014,
sixteen-year-old Yaakov Naftali Fraenkel (“Naftali”) and two
of his classmates were taken hostage by members of Hamas
while on their way home from school in Israel’s West Bank. A
half-hour after they were taken hostage, the boys were killed
by their captors. Naftali’s family brought suit in District Court
against the Islamic Republic of Iran, Ministry of Foreign
Affairs (“Iran”), the Iranian Ministry of Information and
Security, and the Syrian Arab Republic (“Syria”) (collectively,
“Appellees”) under the terrorism exception to the Foreign
Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605A, for
providing material support to Hamas. The defendants failed to
respond to the complaint and the District Court entered a
default judgment in favor of the Fraenkels, awarding Naftali’s
estate $1 million for his pain and suffering and $50 million in
punitive damages, and his family $4.1 million in solatium
damages. See Fraenkel v. Islamic Republic of Iran (Fraenkel
I), 248 F. Supp. 3d 21, 43 (D.D.C. 2017). This appeal concerns
a challenge by the Fraenkels to the amount of damages awarded
them.
The Fraenkels argue that the District Court erred in failing
to determine the solatium damages awards in conformity with
the remedial scheme established in Estate of Heiser v. Islamic
Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006). We reject
this claim. The decision in Heiser may serve as a useful
reference point, but it is not binding precedent. District Court
judges have discretion under 28 U.S.C. § 1608(e) to grant
solatium awards based on the particular facts of each case,

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subject to abuse-of-discretion review for errors of law, clearly
erroneous factual findings, and faulty reasoning. See Hill v.
Republic of Iraq, 328 F.3d 680, 683 (D.C. Cir. 2003).
The Fraenkels also contend that the District Court erred in
awarding solatium damages in amounts less than the damages
awarded in Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53
(D.D.C. 2008). In justifying its decision, the District Court
explained that, unlike the victims in Gates – American
contractors servicing the U.S. military during the Iraq War –
Naftali was not targeted for being an American. Although
Naftali was a U.S. citizen, the District Court found that he was
captured and killed because he was Jewish-Israeli. The District
Court also found that the location of the Fraenkels’ home,
Naftali’s school, and the site of the abduction indicated that
Naftali and his family had “accepted the risk” of terrorist
attacks. Based on these considerations, the District Court
awarded solatium damages to Naftali’s family members that
were lower than the amounts awarded to the plaintiffs in Gates.
The Fraenkels claim that the District Court abused its
discretion in awarding solatium damages because the court’s
judgment was based on impermissible considerations and
clearly erroneous findings of fact. We agree.
For the reasons explained below, we reverse the District
Court’s judgment on the solatium damages awards and remand
for further consideration. We affirm the District Court’s
punitive damages and pain-and-suffering awards because the
judgments with respect to those awards were consistent with
the applicable law, adequately reasoned, and supported by the
evidence.

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I.

BACKGROUND

A. Factual Background
Yaakov Naftali Fraenkel, a sixteen-year-old with Israeli
and U.S. citizenship, attended boarding school in the Gush
Etzion region of Israel’s West Bank. His mother, father, and
six siblings lived in Nof Ayalon, an Israeli settlement that
straddles the Green Line. On the evening of June 12, 2014,
Naftali headed home from school accompanied by two
classmates, Gilad Shaer and Eyal Yifrach. The boys waited at
a junction in Alon Shvut to hail a ride from passing cars.
According to Naftali’s mother, Rachelle Fraenkel, “[t]he boys
thought they were getting a ride home in a spot where
hitchhiking is very normal and usually safe.” Declaration of
Plaintiff Rachelle Fraenkel, at 8 ¶ 43 (June 27, 2016), reprinted
at Appendix (“App.”) 107.
Around 10:00 p.m., a car stopped for the young men. Inside
were two members of Hamas, who abducted the boys at
gunpoint. Around 10:30 p.m., Israeli emergency services
received a telephone call. The police heard a voice that sounded
like Gilad, who said that the boys had been kidnapped; they
also heard another voice speaking in Arabic and Hebrew saying
“put your head down.” The police then heard muffled sounds
of gunshots and a person moaning in physical pain. It was later
determined that the terrorists had shot and killed each boy.
After eighteen days of searching, the boys’ bodies were found
on land owned by the head of a Hamas cell. On August 20,
2014, Hamas officially took responsibility for the kidnapping
and murders of Naftali, Gilad, and Eyal.
On July 9, 2015, the Fraenkels brought this civil action in
District Court, alleging that Iran, the Iranian Ministry of

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Information and Security, and Syria materially supported
Hamas in connection with Naftali’s kidnapping and murder.
B. The Statutory Framework
Foreign states are immune from the jurisdiction of federal
courts, subject to certain exceptions codified in the Foreign
Sovereign Immunities Act of 1976 (“FSIA”). 28 U.S.C.
§ 1604; see Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 439 (1989) (“[T]he FSIA [is] the sole
basis for obtaining jurisdiction over a foreign state in federal
court.”). The Fraenkels’ action relies upon one such provision
in the FSIA, known as the “terrorism exception” to sovereign
immunity. See 28 U.S.C. § 1605A.
It is well understood that, over the years, Congress has
amended the FSIA to allow “massive judgments of civil
liability against nations that sponsor terrorism.” Leibovitch v.
Islamic Republic of Iran, 697 F.3d 561, 571 (7th Cir. 2012);
see also Owens v. Republic of Sudan, 864 F.3d 751, 763–65
(D.C. Cir. 2017). These legislative actions obviously have
aimed to deter state-sponsored terrorism. Consistent with this
legislative goal, § 1605A provides federal courts with
jurisdiction over, and withdraws sovereign immunity from,
suits
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 . . . 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.

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28 U.S.C. § 1605A(a)(1).
Section 1605A also creates a federal cause of action
directly against foreign governments. Under § 1605A(c),
“national[s] of the United States” may sue certain foreign
governments – those designated by the U.S. government as
state sponsors of terrorism – for the acts described in
§ 1605A(a)(1) causing “personal injury or death.” Id.
§ 1605A(c). The statute specifies that, “[i]n any such action,
damages may include economic damages, solatium, pain and
suffering, and punitive damages.” Id.
In order to obtain a default judgment in a § 1605A action,
plaintiffs must “establish[] [their] claim or right to relief by
evidence satisfactory to the court.” Id. § 1608(e). Upon
obtaining a default judgment, successful plaintiffs may recover
damages by proving “that the projected consequences are
reasonably certain (i.e., more likely than not) to occur, and
must prove the amount of damages by a reasonable estimate.”
Hill, 328 F.3d at 684. Although these requirements “give an
unresponsive sovereign some protection against an unfounded
default judgment,” plaintiffs need not submit “more or
different evidence than [a court] would ordinarily receive;
indeed, the quantum and quality of evidence that might satisfy
a court can be less than that normally required.” Owens, 864
F.3d at 785.
The courts are not authorized to craft a body of federal
common law in deciding FSIA terrorism exception claims. See
Bettis v. Islamic Republic of Iran, 315 F.3d 325, 333 (D.C. Cir.
2003). However, a district court may rely on well-established
statements of common law, found in state reporters, the
Restatement of Torts, and other respected treatises, in
determining damages under § 1605A(c). See id.

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Finally, foreign national family members of an American
victim, who do not have a cause of action under § 1605A(c),
“may continue to pursue claims under applicable . . . foreign
law.” Leibovitch, 697 F.3d at 572. “Although § 1605A created
a new cause of action, it did not displace a [foreign national]
claimant’s ability to pursue claims under applicable state or
foreign law upon the waiver of sovereign immunity.” Id.; see
also Owens, 864 F.3d at 809.
C. The Litigation in District Court
As noted above, the Fraenkels brought this action against
Appellees in the District Court pursuant to the FSIA’s terrorism
exception, 28 U.S.C. § 1605A. Their complaint alleged that
Appellees provided material support and resources to Hamas
in furtherance of the hostage taking and murder of Naftali.
Although the Fraenkels properly served Appellees with process
under 28 U.S.C. § 1608(a), none of the defendants filed an
answer or otherwise appeared. Accordingly, the Fraenkels filed
a motion for default judgment.
1. Fraenkel I
On March 31, 2017, following a two-day evidentiary
hearing on liability and damages, the District Court entered a
default judgment in favor of the Fraenkels and against
Appellees. See Fraenkel I, 248 F. Supp. 3d at 43. The District
Court first explained that the Fraenkels had satisfactorily
proved each requirement for jurisdiction and waiver of
sovereign immunity under § 1605A(a). See id. at 35. Regarding
Appellees’ liability, the District Court determined that Rachelle
Fraenkel and her six surviving children had satisfactorily
proved their claims against Appellees under § 1605A(c)’s right
of action. See id. at 35–38.

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Abraham, Naftali’s father, lacks a private right of action
under § 1605A(c) because he is not a U.S. national.
Nonetheless, the District Court concluded that it had
jurisdiction over Abraham’s complaint pursuant to
§ 1605A(a)(1) and that foreign sovereign immunity was
waived pursuant to § 1605A(a)(2)(A)(ii)(I). Thus, the District
Court determined that it could consider Abraham’s Israeli law
tort claims. See Owens, 864 F.3d at 809 (allowing foreign
family members of U.S. nationals to bring claims under
alternative sources of law once sovereign immunity is waived
under § 1605A(a)). The District Court first applied District of
Columbia choice-of-law rules and concluded that Israeli law
governed Abraham’s tort claims. See Fraenkel I, 248 F. Supp.
3d at 38–39. After finding that Abraham had “established
negligence by Iran and Syria under Israeli law,” the District
Court entered judgment on his behalf. Id. at 40.
The only dispute now before this court concerns the District
Court’s damages awards to the plaintiffs. The U.S. national
plaintiffs received damages pursuant to § 1605A(c), which
authorizes “economic damages, solatium, pain and suffering,
and punitive damages.” The District Court awarded Naftali’s
estate $1 million for his pain and suffering, because “it is clear
from the evidence Naftali Fraenkel suffered from the moment
he was taken hostage up until his death,” a span of about 30
minutes. Fraenkel I, 248 F. Supp. 3d at 40–41.
Naftali’s mother and siblings also received solatium
damages, which is compensation for loss of society and for
emotional suffering or grief caused by the death of a family
member. The District Court found that
[t]he Fraenkel family is obviously very close. Each
member testified in detail about Naftali’s role in the

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family (second oldest and second son) and what he
meant in their lives specifically. The testimony
provided a picture of a loving family, wherein Naftali
played a central role in their spiritual and personal
lives. Multiple family members testified about
Naftali’s musical ability and how it enriched their
celebrations on the Sabbath and other holy days.
Without question, the lives of each member of the
family will be forever altered because Naftali is not
with them.
Fraenkel I, 248 F. Supp. 3d at 41. Finding “the evidence of the
Plaintiffs’ entitlement to solatium compensation fully
satisfactory,” the District Court awarded Rachelle and her
children $3.1 million in solatium damages. Id.
The District Court further determined that punitive
damages were warranted based on “the character of the
defendants’ act, . . . the nature and extent of harm to the
plaintiffs[,] . . . the need for deterrence, and . . . the wealth of
the defendants.” Id. Based on these considerations, the District
Court awarded the U.S. national Fraenkels $50 million in
punitive damages jointly and severally against Iran and Syria.
Id.
The District Court awarded Abraham Fraenkel
compensatory damages under Israeli law. Id. at 42–43. Taking
into account not only the pain that Naftali’s death caused his
father, but also the physical and emotional effects the loss has
had on Abraham’s daily life, the court awarded Abraham $1
million in solatium damages. Id. at 43.

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2. Fraenkel II
The Fraenkels moved to reconsider the District Court’s
damages awards, taking particular issue with the amount of
solatium damages awarded. They argued that the damages
were insufficient to provide them fair compensation and that
the awards departed from the remedial scheme established in
Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d
229 (D.D.C. 2006). In Heiser, the District Court reviewed prior
FSIA decisions and summarized the typical amounts awarded
for solatium based on the nature of the relationship between the
victim and his or her family members. See id. at 268–70. The
Fraenkels argued that the Heiser amounts are baselines that
should guide all other District Court judges in their awards of
solatium damages.
On June 28, 2017, the District Court denied the motion for
reconsideration. Fraenkel v. Islamic Republic of Iran
(“Fraenkel II”), 258 F. Supp. 3d 77 (D.D.C. 2017). It declined
to conform its damages awards to the amounts specified in
Heiser, noting that “Heiser is not binding; it is an opinion of a
valued colleague, not a superior court.” Id. at 82. The District
Court thus refused to rely on Heiser’s solatium amounts as a
baseline. Instead, the court held that the FSIA “require[s]
all . . . plaintiffs to justify their damages, which means that
damages must be reasonably tied to a plaintiff’s facts.” Id.
The District Court then elaborated on the reasoning behind
the original amounts of damages awarded. The court made it
clear that, in its view, the Fraenkels deserved damages awards
below the amounts awarded to the plaintiffs in Gates v. Syrian
Arab Republic, 580 F. Supp. 2d 53 (D.D.C. 2008). See
Fraenkel II, 258 F. Supp. 3d at 82. In reaching this conclusion,
the District Court rested on two principal points.

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First, the court found it significant that the victims in Gates
were abducted and brutally beheaded “because they were U.S.
citizens living abroad engaged in work at the behest of the
United States government.” Id. at 83. In contrast, the court
explained, the Fraenkels “are all natives of Israel.” Id. The
court reasoned that “Naftali was not targeted because he was a
U.S. citizen, and he was not a U.S. citizen inadvertently caught
up in the Israeli-Palestinian conflict . . . . To the contrary,
Naftali Fraenkel was an Hamas target because of his Israeli
citizenship.” Id. at 84.
Second, in contrast to its initial decision, which stated that
Naftali was kidnapped from Alon Shvut Junction, see Fraenkel
I, 248 F. Supp. 3d at 27, the court said on reconsideration that
he was kidnapped when hitchhiking home from Gush Etzion
Junction, see Fraenkel II, 258 F. Supp. 3d at 83. The court
noted that Appellants’ own expert had identified Gush Etzion
Junction as the “site of many terror attacks.” Id. The District
Court also stated in its decision on reconsideration that the
Fraenkels had “accepted the risks of living in a community
built across the Green Line in Israel and sending Naftali
Fraenkel 40 miles further into the West Bank for high school.”
Fraenkel II, 258 F. Supp. 3d at 83.
The trial judge appeared to believe that the foregoing
considerations and facts distinguished this case from Gates.
Therefore, in the view of the District Court, this justified
damages awards lower than those granted in Gates.
The Fraenkels appealed the denial of their motion for
reconsideration. Because neither Iran nor Syria has entered an
appearance in this litigation, the court appointed Georgetown
University Law Center’s Appellate Litigation Program as
amicus curiae to present arguments in support of the District
Court’s judgment.

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II.

ANALYSIS

The issues on appeal are limited to the District Court’s
damages rulings. There is no doubt that the District Court had
jurisdiction over the Fraenkels’ claims pursuant to § 1605A(a)
and that this Court has jurisdiction over this appeal under 28
U.S.C. § 1291. It is uncontested that the Fraenkels have raised
proper causes of action – the U.S. Appellants under
§ 1605A(c), and Abraham under Israeli tort law – and
Appellees’ liability is also uncontested.
On appeal, the Fraenkels focus on three arguments. First,
they claim that in setting the awards for solatium damages, the
District Court relied on improper considerations and clearly
erroneous factual findings. Second, the Fraenkels argue that the
District Court misapplied Gates. And, finally, they contend that
the District Court “broke from precedent” in failing to follow
Heiser’s remedial scheme. We find merit in the first two
contentions.
A. Standard of Review
We review the District Court’s FSIA damages awards for
abuse of discretion. See Owens, 864 F.3d at 785; Hill, 328 F.3d
at 683. Abuse-of-discretion review of findings underlying a
default judgment in a FSIA case of this sort is “lenient.”
Owens, 864 F.3d at 785. However, the District Court’s
authority to award damages under § 1605A(c) is not without
limits. See United States v. Taylor, 487 U.S. 326, 336 (1988)
(“[D]iscretionary choices are not left to a court’s inclination,
but to its judgment; and its judgment is to be guided by sound
legal principles.”).

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“A district court would necessarily abuse its discretion if it
based its ruling on” an error of law, “a clearly erroneous
assessment of the evidence,” Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 405 (1990), or an improper weighing of the
factors limiting its discretion, see, e.g., Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 28 (2008); Taylor, 487 U.S. at 336.
In assessing whether the District Court has abused its
discretion, we must always “ensure that the purposes of the”
statute granting discretion to the trial court – in this case, the
FSIA – “are given effect.” Taylor, 487 U.S. at 336.
B. The District Court’s Judgment on Solatium Damages
In Flatow v. Islamic Republic of Iran, 999 F. Supp. 1
(D.D.C. 1998), the first case decided against Iran under the
terrorism exception to the FSIA, Judge Lamberth issued a
seminal opinion explaining the origins and particulars of
solatium damages. This opinion remains the best explanation
of solatium damages in this circuit and it continues to guide
dispositions of claims under the FSIA. See, e.g., Fraenkel I,
248 F. Supp. 3d at 41; Oveissi v. Islamic Republic of Iran, 768
F. Supp. 2d 16, 25 (D.D.C. 2011); Valore v. Islamic Republic
of Iran, 700 F. Supp. 2d 52, 85–86 (D.D.C. 2010); Belkin v.
Islamic Republic of Iran, 667 F. Supp. 2d 8, 22 (D.D.C. 2009)
(citing Dammarell v. Islamic Republic of Iran, 281 F. Supp. 2d
105, 196–97 (D.D.C. 2003) (relying on Flatow)); Sutherland v.
Islamic Republic of Iran, 151 F. Supp. 2d 27, 52 (D.D.C. 2001).
As explained in Flatow, “[s]olatium is traditionally a
compensatory damage which belongs to the individual heir
personally for injury to the feelings and loss of decedent’s
comfort and society. It began as a remedy for the loss of a
spouse or a parent. It has since expanded to include the loss of
a child.” 999 F. Supp. at 29. A claim may also be based on the
loss of a sibling if the claimant “prove[s] a close emotional
relationship with the decedent.” Id. at 30. “[M]ental anguish,

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bereavement and grief resulting from the fact of decedent’s
death constitutes the preponderant element of a claim for
solatium.” Id. “As damages for mental anguish are extremely
fact-dependent, claims require careful analysis on a case-bycase basis.” Id. Judge Lamberth further explained the following
considerations that come into play in any judicial assessment
of solatium damages:
It is entirely possible to come to terms with the fact
of death, and yet be unable to resolve the sense of
anguish regarding the circumstances of death. This is
particularly true where the death was sudden and
violent. How the claimant learned of decedent’s death,
and whether there was an opportunity to say good-bye
or view the body can be a significant factor
contributing to the claimant’s anguish. . . .
The calculations for mental anguish and loss of
society share some common considerations. First, the
calculation should be based upon the anticipated
duration of the injury. Claims for mental anguish
belong to the claimants and should reflect anticipated
persistence of mental anguish in excess of that which
would have been experienced following decedent’s
natural death. When death results from terrorism, the
fact of death and the cause of death can become
inextricably intertwined, thus interfering with the
prospects for anguish to diminish over time.
The nature of the relationship between the claimant
and the decedent is another critical factor in the
solatium analysis. If the relationship is strong and
close, the likelihood that the claimant will suffer
mental anguish and loss of society is substantially
increased, particularly for intangibles such as

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companionship, love, affection, protection, and
guidance. Numerous factors enter into this analysis,
including: strong emotional ties between the claimant
and the decedent; decedent’s position in the family
birth order relative to the claimant; the relative
maturity or immaturity of the claimants; whether
decedent habitually provided advice and solace to
claimants; whether the claimant shared interests and
pursuits with decedent; as well as decedent’s
achievements and plans for the future which would
have affected claimants.
Finally, unlike lost wages, which can be calculated
with a fair degree of mathematical certainty, solatium
cannot be defined through models and variables. . . .
This is the paradox of solatium; although no amount of
money can alleviate the emotional impact of a child’s
or sibling’s death, dollars are the only means available
to do so.
Id. at 30–32 (citations omitted); see also Black’s Law
Dictionary 1607 (10th ed. 2014) (defining “solatium” as
“[c]ompensation; . . . damages allowed for hurt feelings or
grief, as distinguished from damages for physical injury”);
Flanagan v. Islamic Republic of Iran, 87 F. Supp. 3d 93, 115
(D.D.C. 2015) (describing “a claim for solatium” as “nearly
indistinguishable from a claim for” intentional infliction of
emotional distress); Stethem v. Islamic Republic of Iran, 201 F.
Supp. 2d 78, 89–90 (D.D.C. 2002) (listing five factors, derived
from Flatow, that district courts consider in calculating
solatium damages).
There is no authority to which we have been cited or which
we have been able to find that applies “assumption of risk”
principles to limit solatium damages under the FSIA. As a

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general matter, it is understood that “[a] plaintiff who
voluntarily assumes a risk of harm arising from the negligent
or reckless conduct of the defendant cannot recover for such
harm.” Restatement (Second) of Torts § 496A (1965).
However, as we explain below, it would make no sense to hold
that a family assumes the risk of having a son abducted on
public property and then killed by terrorists if they knew that
terrorists sometimes kidnapped innocent people in the area in
which he was abducted. This is not the law.
With this understanding of solatium damages, we turn now
to plaintiffs’ challenges to the District Court’s decision in this
case. As noted above, we reverse and remand the District
Court’s judgment with respect to the § 1605A(c) solatium
damages awards because the court’s judgment was based on
impermissible considerations and clearly erroneous findings of
fact. We also reverse and remand Abraham’s damages award
for the same reasons as the § 1605A(c) solatium damages
awards. Although Abraham’s damages were calculated under
Israeli law, we default to the application of federal law when
there is a lack of information regarding the proper calculation
of damages under foreign law, as there is here. See, e.g.,
Thuneibat v. Syrian Arab Republic, 167 F. Supp. 3d 22, 47
(D.D.C. 2016). There are two problems with the District
Court’s judgment: (1) the court’s reliance on the terrorists’
intent to target Israelis as a justification for limiting solatium
damages awarded to Naftali’s survivors; and (2) the court’s
supposition that solatium damages should be limited because
Naftali and his family assumed the risk that he might be
abducted and killed by terrorists. These considerations are
discussed in turn below.

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1. Nationality of the Victim
The District Court indicated that the Fraenkels should
receive solatium damages awards below the amounts awarded
to the plaintiffs in Gates because Naftali was targeted for being
Israeli while the victims in Gates were targeted for being U.S.
nationals. Fraenkel II, 258 F. Supp. 3d at 84. This rationale
does not withstand scrutiny. We can find no legal basis under
the FSIA for limiting a plaintiff’s solatium damages award
because the victim of an extrajudicial killing was targeted for
his affiliation with Israel, rather than the U.S.
Section 1605A does not distinguish between U.S. national
victims and dual-citizen victims in authorizing damages under
its private right of action. See 28 U.S.C. § 1605A(c). Indeed,
§ 1605A does not even require that the victim of the terrorist
attack be a U.S. national for his American relatives to recover
for his death. See id. § 1605A(a)(2)(A)(ii) (requiring as a
condition of waiving sovereign immunity and granting
jurisdiction that “the claimant or the victim was” a U.S.
national) (emphasis added); id. § 1605A(c)(1) (requiring the
claimant, not the victim, to be a U.S. national in order to
recover under the right of action). Under the statute, Naftali’s
national affiliation is irrelevant for the purposes of determining
the U.S. plaintiffs’ entitlement to damages under § 1605A(c).
It is undisputed here that Naftali’s mother and siblings are all
U.S. nationals.
The reason that Naftali was targeted is likewise irrelevant
for purposes of his father Abraham’s Israeli law claims.
Abrogation of sovereign immunity under § 1605A(a), on which
the court’s jurisdiction over his claims depends, requires that
the victim is a U.S. national. But that provision contains no
qualifier on whether the victim’s U.S. citizenship was relevant
to the act. Therefore, it does not matter under the FSIA that

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Naftali was also an Israeli citizen and may have been targeted
because of this.
Finally, the District Court’s reasoning does not comport
with its own interpretation of “solatium.” As the court properly
recognized, “solatium” damages are compensation for
“[m]ental anguish, bereavement and grief resulting from the
fact of decedent’s death.” Fraenkel I, 248 F. Supp. 3d at 41
(quoting Flatow, 999 F. Supp. at 30). The District Court found
that Naftali’s abduction and death caused his family severe
emotional anguish and “will . . . forever alter[]” their lives. Id.
There is certainly no basis in the record or in the District
Court’s reasoning to support a conclusion that the Fraenkels
suffered less from Naftali’s murder because they might have
thought that he was killed for being Israeli, and not for being a
U.S. citizen. Indeed, the District Court acknowledged that the
fact that Naftali was murdered for being a Jewish-Israeli
teenager “do[es] nothing to lessen the Plaintiffs’ grief or loss
or U.S. citizenship.” Fraenkel II, 258 F. Supp. 3d at 84. By the
District Court’s own definition of “solatium” and its own
factual findings, then, the terrorists’ motivation in targeting
Naftali was not a permissible basis for lowering the solatium
awards granted to his family.
On remand, the District Court should apply the
considerations outlined in Flatow, 999 F. Supp. at 30–32,
without regard to Naftali’s dual citizenship, to determine the
appropriate amounts of solatium damages to award to the
Fraenkels.

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2. Assumption of Risk
The District Court also suggested that the Fraenkels should
receive solatium damages awards below the amounts awarded
to the plaintiffs in Gates because Naftali and his parents
assumed the risk that he might be kidnapped and killed by
terrorists. See Fraenkel II, 258 F. Supp. 3d at 83–84. On this
point, the District Court noted that “[the Fraenkels] accepted
the risks of living in a community built across the Green Line
in Israel and sending Naftali Fraenkel 40 miles further into the
West Bank for high school in Gush Etzion[, which] is about
six miles from Hebron, a predominately Palestinian city.” Id.
The District Court obviously took these facts into account in
assessing, and limiting, the solatium damages it awarded. We
agree with the Fraenkels that the court erred in doing this.
Under common law theory, the doctrine of assumption of
risk can be used to bar recovery for a negligent act when a
plaintiff has voluntarily incurred a known risk. See, e.g.,
Scoggins v. Jude, 419 A.2d 999, 1004 (D.C. 1980). It is
typically an affirmative defense and the burden of proof lies
with the defendant. Morrison v. MacNamara, 407 A.2d 555,
566 (D.C. 1979). “[T]he princip[al] elements of the defense are
an actual knowledge and comprehension of a danger caused by
the defendant’s negligence and the plaintiff’s voluntary
exposure to that known danger.” Id. at 567.
We can find no authority in which assumption of risk has
been held to be a defense against an otherwise viable claim
under the FSIA, or that has indicated it should result in a
reduced damages award. The reason is simple: assumption of
risk is not a defense when a plaintiff (or a victim under the
FSIA) “is compelled to accept the risk in order to exercise or
protect a right or privilege, of which the defendant has no
privilege to deprive him.” Kanelos v. Kettler, 406 F.2d 951,

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955 (D.C. Cir. 1968). “[A]cceptance of the risk is not to be
regarded as voluntary where the defendant’s tortious [or
unlawful] conduct has forced upon [a party] a choice of two
courses of conduct, which leaves him no reasonable alternative
to taking his chances.” Id. (quoting Restatement (Second) of
Torts 469 E, comment c (1965)). Further, one does not assume
the risk that he will be the victim of an intentional tort. See
Janelsins v. Button, 648 A.2d 1039, 1045 (Md. 1994) (noting
that “jurisdictions that have considered the issue of assumption
of risk as a defense to an intentional tort have overwhelmingly
rejected its applicability” and citing cases).
Thus, the driver who voluntarily chooses to go out at night
does not assume the risk of being hit by an inebriated motorist.
See Knight v. Jewett, 834 P.2d 696, 704–05 (Cal. 1992). The
college student who consumes alcohol at a party does not
assume the risk of being sexually assaulted by another guest.
See Doe v. Roe, No. CV125034145S, 2013 WL 6912882
(Conn. Super. Ct. Nov. 27, 2013). The employee who enters a
hostile crowd of customers does not assume the risk that one of
them will physically batter him. See Blankinship v. Duarte, 669
P.2d 994, 999 (Ariz. 1983). And we add that the family of a
boy hailing a ride home from school on a public street and
engaging in no unlawful conduct does not assume the risk of
the boy being kidnapped and killed by terrorists. The District
Court’s suggestion to the contrary was error.
Furthermore, the District Court’s finding that, when they
were kidnapped, Naftali and his friends were “hitchhiking
home at 10:30 at night from Gush Etzion Junction,” Fraenkel
II, 258 F. Supp. 3d at 83 – an area it suggested had experienced
“many terror attacks,” id. – is not supported by the record. One
expert report in the record did indeed mistakenly identify the
site of the kidnapping as the Gush Etzion Junction. See
Declaration of Arieh Dan Spitzen at 6 ¶ 20 (June 23, 2016),

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reprinted at App. 40, 45. But the expert later issued a
supplemental report and offered live testimony correcting that
earlier statement and clarifying that Naftali was kidnapped
from the Alon Shvut Junction, more than three kilometers from
the Gush Etzion Junction. Transcript of Evidentiary Hearing at
114, 123–24 (Dec. 6, 2016), Plaintiff Witness Arieh D. Spitzen,
App. 448, 457–58; Supplemental Declaration of Arieh Dan
Spitzen at 1–2 ¶¶ 3–4 (Nov. 4, 2016), App. 641–42. Indeed, the
District Court’s first opinion states that Naftali had been
kidnapped at “a junction in Alon Shvut,” not at the Gush Etzion
Junction. Fraenkel I, 248 F. Supp. 3d at 27.
Moreover, the District Court’s own findings indicate that
the Alon Shvut Junction was not unduly dangerous. See id. (“It
was common for students and other individuals to wait for rides
at that junction.”); Fraenkel II, 258 F. Supp. 3d at 84 (crediting
Rachelle Fraenkel’s testimony that “the boys thought they were
getting a ride home in a spot where hitchhiking is very normal
and usually safe”). Therefore, even if assumption of risk were
relevant, the District Court erred in concluding that Naftali
assumed a heightened risk of a terrorist attack based on the
history of the junction from which he was kidnapped. And,
importantly, the District Court failed to explain how the risks
associated with living in the Fraenkels’ community impacted
their “[m]ental anguish, bereavement, and grief.” Flatow, 999
F. Supp. at 30.
Finally, it should be noted that Congress clearly intended
the FSIA’s terrorism exception to deter states from supporting
terrorism in areas of the world like the area in which Naftali
lived and was killed. See Leibovitch, 697 F.3d at 565. Only five
months after the original terrorism exception was enacted,
Congress passed the Flatow Amendment in order to expand the
remedies available to victims of state-sponsored terrorism. See
28 U.S.C. § 1605 (note). “[O]ne of the prime movers behind”

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the amendment was Stephen Flatow, whose daughter, Alisa
Flatow, was killed by a suicide bomber in Gaza – a territory
abutting Israel that, like the West Bank, is fraught with
longstanding political tension and a history of terrorism. In re
Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31,
43 (D.D.C. 2009); Flatow, 999 F. Supp. at 7. When families
like the Flatows were unable to recover punitive damages
under the FSIA against Iran, see Cicippio-Puleo v. Islamic
Republic of Iran, 353 F.3d 1024, 1027 (D.C. Cir. 2004),
Congress replaced the prior terrorism exception with § 1605A
in order to expand the relief available, Leibovitch, 697 F.3d at
567.
Given Congress’s consistent expansion of remedies under
the FSIA for victims of state-sponsored terrorism overseas, in
areas of the world subject to high levels of terrorism, it is hard
to imagine that Congress meant for district courts to reduce
solatium awards under § 1605A(c) for families like the
Fraenkels who live in areas that may face an increased
incidence of terrorist attacks. We therefore reverse and remand
the District Court’s judgment on the solatium damages awards
so that the court may reassess these damages without any
suggestion that Naftali and his immediate family “accepted the
risk” that he might be kidnapped and killed by terrorists.
3. The Fraenkels’ Reliance on Heiser
The Fraenkels additionally argue that the District Court
“broke from precedent,” supported by “extensive case law on
damages in [FSIA] cases,” by awarding solatium damages in
amounts “dramatically lower than those received by thousands
of similarly-situated plaintiffs.” Appellants’ Br. 29. According
to the Fraenkels, this “case law” governing solatium awards is
authoritatively summarized in Estate of Heiser v. Islamic
Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006). In that

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case, the District Court reviewed prior FSIA decisions and
concluded that “courts typically award between $8 million and
$12 million for pain and suffering resulting from the death of a
spouse[,] approximately $5 million to a parent whose child was
killed[,] and approximately $2.5 million to a plaintiff whose
sibling was killed.” Id. at 269. The Fraenkels maintain that
subsequent District Court decisions have invariably followed
the Heiser framework, and that as a result, the court below was
obligated to consider these amounts a “baseline” from which
they could vary only with reasoned justification. We disagree.
We recognize that many FSIA decisions issued by the
District Court follow Heiser’s solatium damages model. See,
e.g., Estate of Brown v. Islamic Republic of Iran, 872 F. Supp.
2d 37, 42–44 (D.D.C. 2012). However, the District Court in
this case was not required to follow Heiser for the simple
reason that Heiser is not controlling precedent. See Labow v.
U.S. Dep’t of Justice, 831 F.3d 523, 532 (D.C. Cir. 2016)
(“[D]istrict court opinions do not establish binding precedent
on other courts . . . .”).
We decline to impose Heiser’s framework as a mandatory
scheme under the FSIA. First, the FSIA, and the case law
applying the statute, make it clear that the trial judge has
discretion in determining solatium damages. The FSIA
requires only that a plaintiff “establish[] his claim or right to
relief by evidence satisfactory to the court.” 28 U.S.C.
§ 1608(e); see also Hill, 328 F.3d at 684 (requiring plaintiffs to
prove the amount of economic damages “by a reasonable
estimate”). Given this statutory scheme, District Court judges
invariably must exercise discretion in determining damages
awards under the FSIA. There is no statutory basis for
concluding that district courts must award solatium damages in
the amounts that Heiser found commonly granted.

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Heiser reflects a reasonable effort to chart solatium award
baselines, but the figures merely reflect the summary of
judgments in prior cases – many of which, like this case, were
not the product of contested litigation. While past solatium
awards from comparable cases are appropriate sources of
guidance for district courts, “different plaintiffs (even under
FSIA) will prove different facts that may well (and should)
result in different damage awards.” Fraenkel II, 258 F. Supp.
3d at 82.
Indeed, not all District Court decisions awarding solatium
damages to family members of a decedent have applied the
Heiser framework. See Estate of Bayani v. Islamic Republic of
Iran, 530 F. Supp. 2d 40, 46 (D.D.C. 2007) (involving solatium
higher than Heiser amounts for victim tortured for two years
by Iranian government before being executed, causing his
family acute suffering); see also Kim v. Democratic People’s
Republic of Korea, 87 F. Supp. 3d 286, 290 (D.D.C. 2015);
Gates, 580 F. Supp. 2d at 71–72.
As explained above, we are obliged to leave it to the wise
discretion of our judicial colleagues on the District Court to
determine the damages that are due under the FSIA. And, as
we have explained, the District Court does not abuse its
discretion unless it issues a judgment based on an error of law,
“a clearly erroneous assessment of the evidence,” Cooter &
Gell, 496 U.S. at 405, or an improper weighing of the factors
limiting its discretion, see, e.g., Winter, 555 U.S. at 28.
C. Pain-and-Suffering and Punitive Damages
Finally, the Fraenkels have objected, albeit in a relatively
cursory fashion, to the pain-and-suffering and punitive
damages amounts awarded by the District Court. Appellants’
Br. 52–54. We have fully considered the Fraenkels’ objections

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to these awards and we find no merit in them. The District
Court’s findings with respect to these awards were consistent
with the requirements of the law, reasonable, supported by
adequate explanation, and fully within the bounds of its
discretion.
III.

CONCLUSION

For the foregoing reasons, we reverse the District Court’s
judgment on solatium damages awards and remand for further
consideration consistent with this opinion. We affirm the
District Court’s pain-and-suffering and punitive damages
awards.

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