FORCE et al v. ISLAMIC REPUBLIC OF IRAN et al
Filing
124
MEMORANDUM OPINION AND ORDER: For the reasons given the attached Memorandum Opinion and Order, Plaintiff Daniella Parnas's renewed motion for default judgment, Dkt. 117 , is DENIED. Counsel for Plaintiffs is ORDERED to appear by video for a sta tus conference on July 26, 2022, at 2:00 p.m., to discuss how to proceed in this case, including with respect to the claims of Plaintiffs Menachem Mendel Rivkin, Shmuel Brauner, and Yehuda Glick, and those Plaintiffs whose claims are tied to their direct injuries. Signed by Judge Randolph D. Moss on 07/05/2022. (lcrdm3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TAYLOR FORCE, et al.,
Plaintiffs,
v.
Civil Action No. 16-1468 (RDM)
THE ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This is a civil action for compensatory and punitive damages against the Islamic Republic
of Iran, the Iranian Ministry of Information and Security, and the Syrian Arab Republic under the
state-sponsored terrorism exception the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.
§ 1605A. Although the Court previously entered a default judgment as to most of the 57
Plaintiffs in this action, the Court declined to enter judgment in favor of six Plaintiffs. Dkt. 111.
One such Plaintiff—Daniella Schwadron Parnas—has now renewed her motion for default
judgment. Dkt. 117.
For the following reasons, the Court will DENY Parnas’s renewed motion. In reaching
that conclusion, the Court reconsiders and changes its view about whether the waiver of foreign
sovereign immunity contained in § 1605A applies to attempted extrajudicial killings when no
one is, in fact, killed in the attack at issue. Because the Court concludes that § 1605A does not
apply to attempts of this type, the Court reaffirms its decision declining to enter judgment in
Parnas’s favor but does so on alternative grounds.
I. BACKGROUND
This is not the Court’s first word in this case, see Dkt. 111, and, accordingly, the Court
provides only the background necessary for disposition of the instant motion.
Plaintiff Daniella Schwaron Parnas (“Parnas”) is an Israeli-born, dual Israeli-U.S. citizen.
Dkt. 69 at 1 (D. Parnas Decl. ¶ 1); Dkt. 82-23. In November 2012, Parnas was living with her
three children in Timorim, in southern Israel; Parnas’s mother lived in an adjoining house. Dkt.
69 at 1 (D. Parnas Decl. ¶ 5). Between November 14, 2012, and November 21, 2012, terrorists
operating in the Gaza Strip launched roughly 1,500 rockets into Israel. Dkt. 33 at 114–15
(Spitzen Decl. ¶ 301); Dkt. 104 at 76–77 (Spitzen). One such rocket—a 122 mm Grad rocket—
traveled some 40 kilometers from the Gaza Strip before exploding “near houses in Moshav
Timorim” and causing “heavy damage” to Parnas’s home. Dkt. 33 at 114–15 (Spitzen Decl.
¶¶ 300–01); Dkt. 69 at 2 (D. Parnas Decl. ¶¶ 10–15).
At the time, Parnas was not home. Just minutes before, she had left “to go to the grocery
store and to throw away” some cardboard boxes her mother had used to “cover [some] windows”
that were destroyed by a rocket attack three days earlier. Dkt. 69 at 1–2 (D. Parnas Decl. ¶ 8).
As Parnas was driving to the store, a “siren started sounding across the village,” id. at 2 (D.
Parnas Decl. ¶ 9), and she “rush[ed] in a panic to the closest bomb shelter,” Dkt. 117-1 at 1 (D.
Parnas Suppl. Decl. ¶ 3); see also Dkt. 69 at 2 (D. Parnas Decl. ¶ 10) (“I pulled my car to the side
of the road and hurried into a nearby bomb shelter where I took shelter with several other
people.”) Once inside, Parnas heard a “very loud ‘BANG,’” which she took as an “indication
that a rocket had fallen not far from the bomb shelter.” Dkt. 69 at 2 (D. Parnas Decl. ¶ 10).
When Parnas emerged from the bomb shelter several minutes later, she “immediately” noticed a
tree on fire in her yard. Dkt. 117-1 at 2 (D. Parnas Suppl. Decl. ¶ 7); see also Dkt. 69 at 2 (D.
Parnas Decl. ¶ 11). Parnas ran, “shouting hysterically . . . that [the rocket] fell on [her] house,”
and when she reached her house, she “was shocked and frightened by the scene playing out
2
before [her].” Dkt. 69 at 2 (D. Parnas Decl. ¶ 12). She was “terrified,” id. (D. Parnas Decl. ¶ 13)
“fear[ing] for [her] mother’s safety and life,” Dkt. 117-1 at 2 (D. Parnas Suppl. Decl. ¶ 6). “Two
men found [her] mother standing in her hallway in a state of shock and confusion.” Dkt. 69 at 2
(D. Parnas Decl. ¶ 14). Parnas describes feeling “completely devastated” following the attack,
“as if [she] were no longer living in reality, but in some sort of nightmare.” Id. (D. Parnas Decl.
¶ 15).
A psychiatric evaluation conducted five years later, in 2017, revealed that she initially
felt “overwhelming anxiety and fright” and that she subsequently experienced “symptoms of
depression, anxiety and PTSD [from] the shock and stress” of the incident. Dkt. 35-34 at 2, 7
(Daniella Parnas Psych. Eval.). Since that evaluation, Parnas reports that her “condition” has
“worsened” and that, in September 2019, she significantly reduced her work schedule on “the
recommendation of [her] occupational physician.” Dkt. 117-1 at 2 (D. Parnas Suppl. Decl. ¶¶ 9–
10). “In July 2020, [Parnas’s] psychiatrist and physician ordered the continuation of part-time
work until [she] retires.” Id. (D. Parnas Suppl. Decl. ¶ 10). Parnas is currently 59 years old.
Dkt. 69 at 1 (D. Parnas Decl. ¶ 1).
Parnas’s three children also allegedly “suffer[ed] severe psychological and emotional
injuries as a result of” the rocket attack. Dkt. 1 at 28 (Compl. ¶ 112). Her youngest child, A.P.,
was seven years old at the time of the attack and “was staying with a relative nearby.” Id. at 27
(Compl. ¶ 111). “[W]hen the rocket siren sounded,” A.P. “was forced to run or cover.” Id.
Parnas “picked up [A.P.] that afternoon and arrived home [with him] later that evening.” Dkt.
69-1 at 3 (D. Parnas Decl. ¶ 23). Her two older daughters, Noa and Dana, “were serving in the
Israeli army,” id. at 1 (D. Parnas Decl. ¶ 7), but “returned home as soon as they heard the news,”
Dkt. 1 at 27–28 (Compl. ¶ 111). Noa and Dana arrived “[a]pproximately an hour” after the
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attack, Dkt. 69 at 3 (D. Parnas Decl. ¶ 18), “and were shocked and devastated to see the
extensive damage to their house,” Dkt. 1 at 27–28 (Compl. ¶ 111). Since the rocket attack both
Noa and Dana have “experienced a severe amount of shock and anxiety,” and A.P. has
“suffer[ed] from fear and anxiety.” Dkt. 69-1 at 7–8 (D. Parnas Decl. ¶¶ 47–49).
Parnas and her children sought to recover for these emotional injuries when they, along
with dozens of other U.S. citizens, filed this suit against the Islamic Republic of Iran, the Iranian
Ministry of Information and Security, and the Syrian Arab Republic, based on a series of alleged
terrorist attacks (including the November 2012 rocket attack) in Israel. Dkt. 1 at 27–28 (Compl.
¶¶ 108–15). To establish jurisdiction, Plaintiffs invoked the FSIA’s state-sponsored terrorism
exception, 28 U.S.C. § 1605A(a), on the theory that the Defendants had provided material
support to the terrorist groups that were responsible for those attacks, Dkt. 1 at 5, 28 (Compl.
¶¶ 3, 113–15). Parnas alleges, specifically, that Hamas carried out the November 2012 rocket
attack “utilizing funds, weapons, terrorist training and other material support” from the
Defendants. Id. at 28 (Compl. ¶¶ 114–15).
None of the Defendants appeared, and so, at Plaintiffs’ request, the Clerk of Court
entered defaults against each Defendant. Dkt. 23; Dkt. 24. All Plaintiffs, including Parnas,
subsequently moved for the entry of default judgment against all three Defendants, Dkt. 91, and
requested that the Court appoint a special master to make a recommendation as to damages, Dkt.
85. The Court held a two-day hearing that included testimony from five experts and the
submission of a dozen exhibits, Dkt. 104; Dkt. 105, and the Court separately considered over
fifty affidavits, Dkts. 21–22, 29–81. Plaintiffs also submitted proposed findings of fact and
conclusions of law. Dkt. 87.
Although the Court entered a default judgment in favor of nearly all Plaintiffs, the Court
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denied Plaintiffs’ motion without prejudice as to Parnas and her children (as well as two children
of another Plaintiff, who were not yet born at the time of the attack on that Plaintiff). See Dkt.
111. Of the various requirements necessary to invoke the FSIA’s state-sponsored terrorism
exception to foreign sovereign immunity, the Court noted that “the only substantial jurisdictional
question . . . [wa]s whether Plaintiffs’ claims [we]re for ‘personal injury or death that were
caused by acts of torture, extrajudicial killing[,] hostage taking, or the provision of material
support or resources’ by an official, employee, or agent of’ Iran or Syria.” Dkt. 111 at 45
(alterations omitted) (quoting 28 U.S.C. § 1605A(a)(1)). As to Parnas, the Court was not
“persuaded”—at least based on the record and briefing before it—“that the terrorism exception is
sufficiently capacious to include the missile attack that struck the Parnases’ house and caused
them related emotional distress.” Id. at 49. The Court noted that Parnas was not “home—or
even in the immediate vicinity—when the missile struck,” id.; that no one was killed or wounded
in the attack, id.; and that “[p]ermitting recovery under such circumstances would open the door
to a cascade of claims for emotional distress that are unmoored to the types of grievous injury,
death, or imminent, life-altering peril resulting from the uniquely heinous acts that Congress
elected to redress: torture, extrajudicial killing, aircraft sabotage, and hostage taking,” id.at 53.
In particular, although the Court was persuaded, at least at that time, “that the waiver of
sovereign immunity [included in § 1605A] includes attempted extrajudicial killings that result in
serious physical injuries,” id. at 48, it concluded that the direct victim of such an attack must, at a
minimum, face “imminent apprehension,” id. at 52, of the “intended harmful . . . contact,” id.
(quoting Restatement (Second) of Torts § 47 cmt. a). Because “the destruction of the Parnases’
home” did not qualify as an “extrajudicial killing[]” under this test, the Court concluded that it
lacked jurisdiction to hear Parnas’s claim. Id. at 55.
5
Parnas renewed her motion for entry of a default judgment on February 21, 2021, arguing
that she is entitled to relief under the FSIA “based on established case law” holding that the
victim of a state-sponsored terrorist attack may seek “monetary relief for psychological injuries
even without physical injuries.” Dkt. 117 at 2. In support of that motion, Parnas submitted a
supplemental declaration. See Dkt. 117-1 (D. Parnas Suppl. Decl). The motion did not,
however, include renewed requests for a default judgment on behalf of Parnas’s children.
The Court set a hearing to address the unique issues raised by Parnas’s motion and, in
advance of the hearing, identified concerns regarding “whether a plaintiff may avail herself of
the [FSIA’s] terrorism exception for injuries incurred as part of an attempted killing in which no
one was killed.” Min. Order (Sept. 29, 2021) (emphasis added). The Court explained those
concerns as follows:
The Court notes that the [FSIA] carves out an exception to the jurisdictional
immunity enjoyed by foreign states “for personal injury or death that was caused
by an . . . extrajudicial killing,” 28 U.S.C. § 1605A(a)(1) (emphasis added), and
that “extrajudicial killing ha[s] the meaning given [that] term[] in section 3 of
the Torture Victim Protection Act of 1991,” id. § 1605A(h)(7). Section 3 of the
Torture Victim Protection Act, in turn, defines an extrajudicial killing as “a
deliberated killing not authorized by a previous judgment pronounced by a
regularly constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.” Pub. L. No. 102-256, § 3(a),
106 Stat. 73, 73 (1991) (codified at 28 U.S.C. § 1350, note). . . . The Court
further notes that the parallel provision of the Torture Victim Protect Act of 1991
arguably contemplates that an attempt will not suffice, since the provision
provides a remedy to “the individual’s legal representative or to any person who
may be a claimant in an action for wrongful death.” 28 U.S.C. § 1350, note.
Id. In response to the Court’s order, Parnas submitted a supplemental memorandum in advance
of the hearing. Dkt. 122. The Court held the hearing on October 26, 2021. See Min. Entry (Oct.
26, 2021). Because Defendants are in default, Plaintiffs’ submissions constitute the only briefing
and argument before the Court.
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II. ANALYSIS
The entry of a default judgment “is not automatic,” Mwani v. bin Laden, 417 F.3d 1, 6
(D.C. Cir. 2005), and requires the exercise of “sound discretion,” Boland v. Yoccabel Const. Co.,
Inc, 293 F.R.D. 13, 17 (D.D.C. 2013) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir.
1980)). As in every case, the Court must first satisfy itself that it has subject-matter jurisdiction
over the plaintiff’s claims—and that duty persists throughout the proceeding. A case in which
the defendant has defaulted is no different because, absent subject-matter jurisdiction, the Court
is without power to act, and a defendant’s failure to appear cannot fill a jurisdictional void left by
Article III or the Congress. See Fritz v. Islamic Republic of Iran, 320 F. Supp. 3d 48, 76 (D.D.C.
2018). Because Parnas brings suit against the Islamic Republic of Iran, the Iranian Ministry of
Information and Security, and the Syrian Arab Republic, this Court’s jurisdiction is controlled by
the FSIA, which deprives state and federal courts of jurisdiction to adjudicate claims against
foreign states in the absence of an applicable exception. The Court’s consideration of Parnas’s
renewed motion for a default judgment begins and ends with this requirement.
As explained above, the Court concluded in its prior opinion in this matter that it lacks
subject-matter jurisdiction over Parnas’s claim because she was not at home at the time of the
rocket attack and thus was not “put in ‘imminent apprehension’ of physical harm.” Dkt. 111 at
53. In reaching that conclusion, the Court first held that—although a close question—the statesponsored terrorism exception to the FSIA can be read to include at least certain extrajudicial
killings, “even if no one is killed in the attack.” Id. at 48. But it reasoned that the scope of this
exception must be defined in light of “‘well-established principles of law, such as those found in
the Restatement (Second) of Torts and other leading treatises, as well as those principles that
have been adopted by the majority of state jurisdictions to outline the boundaries of [plaintiffs’]
7
theory of recovery.’” Id. at 50. Then, borrowing from analogous principles found in the law of
assault, the Court concluded that the state-sponsored terrorism exception to the FSIA is available
in cases of attempted extrajudicial killing only if the defendant intended to kill the direct victim
and the attack placed her in “apprehension of the immediate infliction of [that] intended harmful
or offensive contact.” Id. at 52.
On further reflection, and after further briefing and argument, the Court is no longer
persuaded that this approach represents the best reading of the FSIA, and the Court now
concludes that the state-sponsored terrorism exception to the FSIA’s grant of foreign sovereign
immunity does not include attempted extrajudicial killings when no one is, in fact, killed in the
attack.
Under § 1605A, a foreign state is not “immune from the jurisdiction of courts of the
United States or of the States in any case . . . in which money damages are sought against a
foreign state for person injury or death,” if (1) the injury or death “was caused by an act of . . .
extrajudicial killing . . . or the provision of material support or resources for such an act” and (2)
that “act or provision of material support or resources [was] engaged in by” a state official acting
within the scope of his or her official duties. 28 U.S.C. § 1605A(a). Here, Parnas contends that
the rocket attack that destroyed her home was an act of “extrajudicial killing” carried out with
the material support of Iran and Syria. To establish that Iran and Syria provided material support
for the rocket attack, Parnas relies on the same evidence that this Court previously found
sufficient, see Dkt. 111 at 7–10 (Iran); id. at 14–16 (Syria), and the Court has no occasion to
revisit that conclusion here. The only question, then, is whether the rocket attack constitutes “an
act of . . . extrajudicial killing . . . or the provision of material support or resources for such an
act,” for purposes of the FSIA’s state-sponsored terrorism exception, 28 U.S.C. § 1605(a).
8
Because no one was killed in that attack, the Court’s jurisdiction turns on whether an
“extrajudicial killing”—or the provision of material support “for such an act”—includes an
attempted (but unsuccessful) extrajudicial killing.
The Court’s analysis starts with the statutory text, and it must end there if the text is clear.
See Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 631 (2018). The FSIA provides that
courts must give the phrase “extrajudicial killing” the same meaning that same phrase is given
“in section 3 of the Torture Victim Protection Act of 1991” (“TVPA”). 28 U.S.C.
§ 1605A(h)(7). Under the TVPA, “extrajudicial killing” means
a deliberated killing not authorized by a previous judgment pronounced by a
regularly constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples. Such term, however, does not
include any such killing that, under international law, is lawfully carried out
under the authority of a foreign nation.
Pub. L. No. 102-256, § 3(a), 106 Stat. 73. The D.C. Circuit has read this definition to “contain[]
three elements: (1) a killing; (2) that is deliberated; and (3) is not authorized by a previous
judgment pronounced by a regularly constituted court.” Owens v. Republic of Sudan, 864 F.3d
751, 770 (D.C. Cir. 2017), vacated on other grounds sub nom. Opati v. Republic of Sudan, 140
S. Ct. 1601, 1610 (2020).
The ordinary understanding of the word “killing,” of course, means that someone has
died—it does not mean that the person came close to death, was placed in imminent
apprehension of death, or even sustained life-threatening injuries. Merriam-Webster, for
example, defines a “killing” as “the act of one that kills” and defines “kill” to mean “to deprive
of life” or “cause the death of.” See Killing, Merriam-Webster, https://www.merriamwebster.com/dictionary/killing (last visited July 5, 2022); Kill, Merriam-Webster,
https://www.merriam-webster.com/dictionary/kills (last visited July 5, 2022). Another
dictionary defines “killing” to mean “an occasion when a person is murdered.” See Killing,
9
Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/killing (last visited
July 5, 2022). In short, as a matter of common usage, “an act of . . . extrajudicial killing” cannot
occur without a death.
The structure of the TVPA further supports this understanding. Although the statute
permits an “individual” who was subjected to torture to recover damages, Pub. L. No. 102-256,
§ 2(a)(1), for extrajudicial killings the TVPA limits recovery to the victim’s “legal
representative” or “any [other] person who may be a claimant in an action for wrongful death,”
id. § 2(a)(2). The TVPA, in other words, contemplates that the direct victim in an extrajudicial
killing will not survive. 1 As the House Report accompanying the TVPA explains, “[i]n cases of
extrajudicial killing . . . the victim will not be alive to bring the suit,” and thus “the victim[’s]
‘legal representative’” is authorized to “bring suit.” H.R. Rep. No. 102-367, at 4 (1991)
(emphasis added).
Nor is the Court aware of any principle of statutory interpretation that, as a matter of
course, deems criminal or tortious acts to include attempted crimes or torts. To the contrary,
when Congress intends to include attempts in a statutory proscription, it does so expressly. See,
e.g., 8 U.S.C. § 1326(a) (attempted reentry into the United States); 18 U.S.C. § 1113 (attempted
murder or manslaughter); 21 U.S.C. § 846 (“Any person who attempts . . . to commit any”
controlled substance offense “shall be subject to the same penalties as those prescribed for the
offense”); Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 648 (2008) (civil RICO
conspiracy claim includes attempted mail fraud as a predicate offense because the mail fraud
1
The Court distinguishes direct victim from other victims of an extrajudicial killing because the
FSIA’s terrorism exception applies in the event of “personal injury or death that was caused by
an act of . . . extrajudicial killing,” 28 U.S.C. § 1605A(a)(1) (emphasis added), and “the same act
of killing one person can quite obviously injure another,” Owens v. Republic of Sudan, 174 F.
Supp. 3d 242, 266 (D.D.C. 2016).
10
statute criminalizes “[u]sing the mail to execute or attempt to execute a scheme to defraud”
(emphasis added)). As the D.C. Circuit has observed in the context of the criminal law, “[t]here
is no general ‘attempt’ statute,” and thus “[a] defendant . . . can only be found guilty of an
attempt to commit a federal offense if the statute defining the offense also expressly proscribes
an attempt.” United States v. Hite, 769 F.3d 1154, 1162 (D.C. Cir. 2014) (quotation marks
omitted).
Just two weeks ago, the Supreme Court reinforced this principle when interpreting the
Armed Career Criminal Act, 18 U.S.C. § 924. See United States v. Taylor, No. 20-1459 (U.S.
June 21, 2022). There, the Supreme Court held that attempted Hobbs Act robbery does not
qualify as a crime of violence under 18 U.S.C. § 924(c)(3)(A) because the statute “does not ask
whether the defendant committed a crime of violence or attempted to commit one” and instead
“asks whether the defendant did commit a crime of violence.” Taylor, slip op. at 7. The Court
went on to explain that the Congress “might have swept in those federal crimes that require as an
element ‘the use or threatened use of force’ and those ‘that constitute an attempt to commit an
offense that has such an element,’” but—because Congress did not do so—the Court would not
read attempts into the scope of that provision. Id.
That same reasoning applies to federal statutes giving rise to civil liability, cf. Cent. Bank
of Denver, N.A. v. First Interstate Bank of Denver, 511 U.S. 164, 176 (1994) (declining to permit
recovery for aiding and abetting in a private civil liability action under §10(b) of the Securities
Exchange Act of 1934, noting among other things that “Congress knew how to impose aiding
and abetting liability when it chose to do so”), and to jurisdictional provisions, like the exception
to the FSIA at issue here. Indeed, the FSIA itself incorporates at least two definitions that
expressly include attempts. See Convention for the Suppression of Unlawful Acts Against the
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Safety of Civil Aviation, Sept. 23, 1971, 974 U.N.T.S. 178, art. I § 2 (defining “aircraft
sabotage” to include attempt); 28 U.S.C. § 1605A(h)(1) (incorporating this definition);
International Convention Against the Taking of Hostages, Dec. 17, 1979, 1316 U.N.T.S. 205, art.
I § 2(a) (defining “hostage taking” to include attempt); 28 U.S.C. § 1605A(h)(2) (incorporating
this definition). Those provisions stand in clear contrast to the definition of “extrajudicial
killing” that Congress employed. There may—or may not—be good reasons for including some
attempted terrorist acts and not others. But that choice is one for Congress, and not the courts, to
make.
To be sure, the Court must “interpret [the FSIA’s] ambiguities flexibly and capaciously”
in light of the statute’s broad remedial purposes. Van Beneden v. Al-Sanusi, 709 F.3d 1165,
1167 (D.C. Cir. 2013). As the D.C. Circuit has explained, “[c]oncerned with victims’ inability to
obtain redress in terrorism cases,” Congress “enacted the terrorism exception expressly to bring
state sponsors of terrorism . . . to account for their repressive practices” and “to prevent [them]
from escaping liability for their sins.” Han Kim v. Democratic People’s Republic of Korea, 774
F.3d 1044, 1048 (D.C. Cir. 2014); see also H.R. Rep. No. 104-383, at 62 (1995) (noting that Iran
and Syria, among others, “consider[ed] terrorism a legitimate instrument of achieving their
foreign policy goals,” and emphasizing the importance of “giv[ing] citizens an important
economic and financial weapon against these outlaw states”). But neither the FSIA nor the
TVPA admits of ambiguity with respect to whether the state-sponsored terrorism exception to
the FSIA includes attempted extrajudicial killings, so this interpretive principle is of little use
here.
It is a mistake, moreover, to conclude that every expansion of § 1605A serves the
statute’s remedial purpose. Given the difficulty in executing a judgment against a state sponsor
12
of terrorism, most plaintiffs who recover under § 1605A receive compensation, if at all, on a pro
rata basis from a fund created by Congress and administered by a special master appointed by the
Attorney General. See 34 U.S.C. § 20144(d)(3). That fund, which is largely derived from
“proceeds from penalties paid by companies and individuals that violate sanctions imposed on
state sponsors of terrorism,” is limited, and thus claimants typically receive only pennies on the
dollar from each, periodic distribution. Braun v. United States, 31 F.4th 793, 795(D.C. Cir.
2022) (claimant received $105,000 of a $2.5 million compensatory judgment in 2019, another
$146,000 in 2020, and nothing in 2021). It follows that expanding the pool of eligible claimants
will inevitably affect the ability of other claimants to receive prompt compensation, and that one
FSIA plaintiff’s remedial purpose may be another plaintiff’s obstacle to recovery. The question
of how best to balance these competing interests in a limited fund is best left to Congress.
As this case illustrates, opening the door to attempted killings raises a related problem: if
courts were to construe § 1605A to include attempted killings, notwithstanding the absence of
clear congressional direction, they would then be required to make a series of policy-laden
decisions about the scope of that waiver of foreign sovereign immunity. In a country like Israel,
which is plagued by repeated, large-scale rocket attacks launched by terrorist groups supported
by Iran and Syria, for example, is every U.S. person (or dual national) and every U.S. employee
or contractor who suffers emotional distress due to these attacks entitled to recover? If not, how
should the Court distinguish between those entitled to invoke the state-sponsored exception and
those not entitled to do so? Although courts can reason by analogy to common law tort
doctrines, that process is fraught, given the difficulty in identifying the appropriate analogy to a
tort or crime that Congress did not expressly identify (or, as far as the Court can discern, even
contemplate) when it enacted the statute.
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The Court premised its prior decision, in part, on the fact that the state-sponsored
terrorism exception to the FSIA applies not only to acts of extrajudicial killing but also to “the
provision of material support or resources for such an act.” 28 U.S.C. § 1605A(a)(1). The Court
noted that “[n]othing on the face of Section 1605A(a)(1) . . . requires that the material support or
resources for an intended extrajudicial killing actually result in someone’s death, as long as the
victim represented in the case was injured.” Dkt. 111 at 48 (quoting Karcher v. Islamic
Republic of Iran, 396 F. Supp. 3d 12, 57 (D.D.C. 2019)). On reflection, however, the Court is no
longer convinced that the material-support prong of the exception can be read so broadly.
Focusing on the plain language of § 1605A, the statute does not waive sovereign
immunity whenever a foreign state provides material support to a designated terrorist
organization and that organization inflicts some form—any form—of “personal injury or death”
on the direct victim. Rather, the material-support prong applies only if the foreign state provides
“material support or resources for such an act”—that is, as relevant here, for “an act of . . .
extrajudicial killing,” 28 U.S.C. § 1605A (emphasis added), and, without a killing, the Court
cannot conclude that the asserted injury was caused by “an act of . . . extrajudicial killing” or that
the material support was provided for “such an act.” Were § 1605A to reach any personal injury
caused by the provision of material support to a terrorist organization that engages in torture,
extrajudicial killings, aircraft sabotage, or hostage taking—regardless of whether the direct,
personal injury was itself the product of one of those acts—the provision would sweep far too
broadly and would cover, for example, everyday (but foreseeable) torts committed by terrorist
organizations that bear no connection to the “repressive practices” that Congress intended to
redress, Han Kim, 774 F.3d at 1048.
It is true that the FSIA provides that “the term ‘material support or resources’ has the
14
meaning given that term in section 2339A of title 18,” 28 U.S.C. § 1605A(h)(3), and § 2339A
criminalizes both the provision of material support or resources and “attempts or conspir[acies]”
to do so, 18 U.S.C. § 2339A(a). But § 2339A applies to “attempts or conspir[acies]” to provide
material support, rather than “attempts” to commit the underlying act. See, e.g., United States v.
Demirtas, 204 F. Supp. 3d 158, 162–63 (D.D.C. 2016) (describing indictment under § 2339A for
“providing, attempting to provide, and conspiring to provide material support to terrorists”).
Moreover, and even more to the point, the FSIA incorporates only the definition of “material
support or resources” from § 2339A(b), 28 U.S.C. § 1605A(h)(3), and not the liability provisions
of § 2339A(a), which broadly reach the provision of material support; the concealment of the
nature, source, or ownership of material support; or “attempts or conspir[acies] to do such an
act,” 18 U.S.C. § 2339A(a). There is no indication that by incorporating the definition of
“material support or resources” from § 2339A(b) into the FSIA’s state-sponsored terrorism
exception, Congress intended for courts to read that FSIA exception in light of the liability
provisions of § 2339A.
Parnas responds by pointing to other decisions from this Court that, she contends, permit
recovery under the FSIA in situations in where no one has died. Dkt. 117 at 3; Dkt. 122 at 7. 2
2
At one point in her supplemental filing, Parnas claims that “[t]he rocket that hit the Parnas
home was not a stand-alone event involving just one rocket” and, instead, “was part of a
protracted, seven-day barrage of rockets . . . during which 1,500 rockets were fired” and,
according to Parnas, “multiple people in Israel were killed and injured.” Dkt. 122 at 3. Parnas
later observes that, “[i]f the attack is viewed in the larger context, it is not true that nobody was
killed or physically injured.” Id. at 4. But Parnas never argues that the rocket attack at issue
here constituted a completed (as opposed to an attempted) extrajudicial killing for purposes of
the FSIA, and, indeed, she acknowledges that “in this case there was no successful extrajudicial
killing.” Id. at 3. Nor has Parnas introduced any competent evidence of any death resulting from
the rocket attack (or even attacks) at issue. Instead, her brief merely includes a hyperlink to a
Wikipedia page that generates an error message. See 28 U.S.C. § 1608(e) (providing that a FSIA
plaintiff is not entitled to default judgment “unless the claimant establishes his claim or right to
15
As an initial matter, several of the cases that she relies upon involved fatalities—that is,
“extrajudicial killings.” One such case involved “a gasoline tanker, modified to serve as a
bomb,” that exploded outside of the Khobar Towers residential complex in Saudi Arabia,
resulting in “the largest non-nuclear explosion ever up to that time” and the killing of 19
members of the U.S. Air Force. Schooley v. Islamic Republic of Iran, No. 17-cv-1376, 2019 WL
2717888, at *1, *3 (D.D.C. June 27, 2019) (quotation marks omitted). Another involved the
bombing of the U.S.S. Cole in Yemen, which “ripped a large hole in the port side of the ship,”
killing 17 sailors and injuring 42 more. Harrison v. Republic of Sudan, 882 F. Supp. 2d 23, 31
(D.D.C. 2012). And yet others arose out of the 1983 bombing of a Marines barracks in Beirut
that killed 241 servicemen. See Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 57
(D.D.C. 2010); Est. of Brown v. Islamic Republic of Iran, 872 F. Supp. 2d 37, 40 (D.D.C. 2012).
These cases, accordingly, have no bearing on the question whether § 1605A applies to an
attempted extrajudicial killing in which no one dies. In each case, the plaintiffs’ injuries were
caused by “an act of . . . extrajudicial killing”—specifically, a deadly bombing.
Parnas is correct, however, that a handful of decisions from this Court—including the
earlier decision in this case—have concluded that attempted extrajudicial killings are covered by
§ 1605A. See Gill v. Islamic Republic of Iran, 249 F. Supp. 3d 88, (collecting cases). Of these,
however, only two (beyond the prior decision in this case) discuss the issue at hand at any length,
and the Court is now unpersuaded by that reasoning. The first relied on two decisions permitting
suit for attempted extrajudicial killings under the TVPA and held that, “because the terrorism
exception adopts the [TVPA’s] definition of extrajudicial killing for the purposes of determining
relief by evidence satisfactory to the court”). The Court need not, as a result, reach the question
of whether the FSIA’s state-sponsored terrorism exception is sufficiently capacious that a
“seven-day barrage of rockets” might constitute a singular “act of . . . extrajudicial killing.”
16
whether a foreign state has waived its sovereign immunity for particular categories of terrorism,
. . . [the] attempted extrajudicial killing of the plaintiff constitute[d] an extrajudicial killing under
the terrorism exception.” Id. at 99. But one of the underlying cases involves no reasoning at all,
see Doe v. Constant, No. 10108-cv-04, 2006 WL 3490503 (S.D.N.Y. Oct. 24, 2006), while the
other merely observed that the “TVPA claims are premised on alleged acts that violate jus
cogens norms” and that “[e]xtrajudicial killing has long been condemned by international law,”
Warfaa v. Ali, 33 F. Supp. 3d 653, 662 (E.D. Va. 2014). Neither decision grappled with those
aspects of the TVPA’s text or legislative history indicating that Congress limited liability for
“extrajudicial killings” to situations in which a direct victim is killed.
For precisely this reason, a recent decision from the U.S. District Court for the Southern
District of New York declined to rely on a line of cases finding attempted killings covered by the
TVPA and the FSIA. Appel v. Hayut, No. 20-cv-6265, 2021 WL 2689059, at *9 (S.D.N.Y. June
30, 2021). There, the court expressed skepticism that “the TVPA allows for civil liability for
attempted deliberative killing,” noting that “the TVPA, on its face, imposes liability for a
‘deliberated killing’ but not an ‘attempted deliberated killing.’” Id. In addressing Constant and
similar decisions, the court observed that those decisions “often, if not always . . . assumed that
there was attempted liability under the TVPA, without any objection from the defendant, . . .
[and] thus did not have occasion to truly grapple with the statutory language.” Id. at *10.
Ultimately, the court had no occasion to resolve this question, however, because other grounds
warranted dismissal of the TVPA claim. Id.
The second decision from this Court that requires discussion is Karcher, which informed
the prior decision in this case holding that § 1605A applies to attempted extrajudicial killings,
even when no one is killed. See Dkt. 111 at 48. Karcher acknowledged that the FSIA’s
17
terrorism exception “does not expressly address attempts to commit acts that are listed in that
provision” but concluded that “injuries resulting from ‘deliberated’ attempts to kill fall within the
scope of [§] 1605A(a)(1).” 396 F. Supp. 3d at 58. That conclusion was based, in part, on the
D.C. Circuit’s instruction (discussed above) that courts should “construe[] the FSIA’s
ambiguities broadly,” id. (citing Van Beneden, 709 F.3d at 1167 & n.4), a principle that the Court
accepts, but only to the extent the reach of the statute is unclear. Karcher also relied on the
material-support prong of the exception, see id. at 54–58, but for the reasons explained above,
the Court is unpersuaded that § 1605A applies to material support used for an attempted, as
opposed to a successful, extrajudicial killing.
The Court recognizes that there may be cases in which individuals suffer grievous
injuries in attacks in which no one dies. Indeed, three other Plaintiffs in this case fall into that
category. These include Menachem Mendel Rivkin, who “was stabbed and injured by a terrorist
while on his way to dinner with his wife,” causing damage to his “left main pulmonary artery”
resulting in “massive internal bleeding;” Dkt. 119 at 12–13; see also Dkt. 72 at 1–2 (Rivkin
Decl. ¶¶ 3, 5–8); Shmuel Brauner, who “suffered extensive shrapnel wounds that resulted in
permanent physical injuries” caused by a rocket attack resulting in the loss of a “kidney and part
of his stomach;” Dkt. 119 at 95; see also Dkt. 39 at 2–3 (Brauner Decl. ¶¶ 7, 11); and Yehuda
Glick, who was “shot four times in the center of his body” during “an attempt to assassinate” him
that left him “in a medically induced coma for ten days” and requiring “nine surgeries,” Dkt. 52
at 4–6 (Glick Decl. ¶¶ 21, 25–26, 43). There is no doubt that these Plaintiffs endured vicious
attacks that caused grave injuries. The severity of those injuries, moreover, likely exceeded
those suffered by others who are entitled to recover under the plain language of § 1605A;
someone sustaining a less severe injury in a terrorist attack that resulted in the deaths of others,
18
for example, might successfully invoke the FSIA’s state-sponsored terrorism exception. The
question, then, is whether Congress could have intended such an incongruity.
A version of this question surfaced in the long-running Owens litigation when the
Republic of Sudan argued that “plaintiffs who did not die cannot sue under § 1605A because
their injuries were not caused by the extrajudicial killing of others.” 174 F. Supp. 3d at 266
(quotation marks omitted). Sudan argued, specifically, that a contrary rule would be “absurd”
because “an injured person’s ability to bring a claim [would] turn on the happenstance of
whether others were killed in the bombing.” Id. (quotation marks and alterations omitted).
Judge Bates was unpersuaded. First, he explained that “§ 1605A covers ‘personal injury or death
that was caused by an act of . . . extrajudicial killing,’ and the same act of killing one person can
quite obviously injure another,” id. (citation omitted)—a principle that the Court today reiterates.
Second, he reasoned that “there is nothing absurd about eliminating immunity only for those acts
that actually cause death, for those are likely to be the most heinous.” Id.
The Court finds the reasoning in Owens convincing, and, indeed, the idea encompassed
by that reasoning is the crux of the issue presented by Parnas’s motion. Although the Court can,
in theory, see why Congress might choose to include attempted extrajudicial killings within the
ambit of the FSIA’s terrorism exception, the Court can also see why Congress might have
limited the reach of the exception to the most heinous and destructive acts. Each prong of the
state-sponsored terrorism exception to the FSIA requires line-drawing and will inevitably
exclude some cases that involve horrific conduct and grievous injuries. The question for the
Court is not whether Congress drew the line in the proper place or even whether, if presented
with the facts of this case, Congress might decide to waive foreign sovereign immunity. All that
the Court can—and should—do is construe the statute that Congress enacted.
19
The Court’s decision is not an easy one. It is at odds with other decisions from this
Court, and it risks leaving those who have suffered terrible injuries—including, perhaps, Rivkin,
Brauner, and Glick—without a remedy. The Court further notes that although Rivkin, Brauner,
and Glick’s counsel has been heard on the legal question decided here, the Court has yet to
provide those plaintiffs with the opportunity to argue that they remain entitled to recover for
reasons that may differ from those pressed by Parnas. The Court, accordingly, will hold a status
conference to hear from counsel for Rivkin, Brauner, Glick, and their relatives about how they
would like to proceed. In the meantime, the Court will proceed to issue a damages decision
applicable to the remaining Plaintiffs who the Court previously found were entitled to the entry
of a default judgment.
CONCLUSION
For the foregoing reasons, the Court will DENY Plaintiff Daniella Parnas’s renewed
motion for default judgment, Dkt. 117. Counsel for Plaintiffs is ORDERED to appear by video
for a status conference on July 26, 2022, at 2:00 p.m., to discuss how to proceed in this case,
including with respect to the claims of Plaintiffs Menachem Mendel Rivkin, Shmuel Brauner,
and Yehuda Glick, and those Plaintiffs whose claims are tied to their direct injuries.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: July 5, 2022
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