Borochov v. Islamic Republic of Iran

94 F.4th 1053

Eli M. BOROCHOV, et al., AppelleesShari Mayer Borochov, et al., Appellants v. ISLAMIC REPUBLIC OF IRAN and Syrian Arab Republic, Appellees

No. 22-7058

United States Court of Appeals, District of Columbia Circuit

Argued May 3, 2023

Reargued September 29, 2023

Decided March 8, 2024

Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-02855)

Michael Radine argued the cause for appellants. On the supplemental briefs was Robert J. Tolchin.

Steven R. Perles and Peter Raven-Hansen were on the supplemental brief for amici curiae Robert Canine, et al. in support of appellants.

Ben Buell, Student Counsel, argued the cause as amicus curiae in support of the District Court's judgment. With him on the supplemental brief was Catherine E. Stetson, appointed by the court.

Brad Hinshelwood, Attorney, U.S. Department of Justice, argued the cause for amicus curiae United States. With him on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Sharon Swingle, Attorney.

Before: Millett, Pillard, and Wilkins, Circuit Judges.

Millett, Circuit Judge:

Rotem and Yoav Golan, a married couple, were among fourteen people injured when a member of the terrorist group Hamas rammed his car into a crowd at a bus stop in Jerusalem. The attack failed to kill any of its intended victims; only the perpetrator died. Rotem and Yoav, along with their relatives, who suffered emotional trauma in the wake of the incident, sued Iran and Syria for the injuries resulting from the car attack. The district court denied a default judgment and any relief to several of the plaintiffs, who then filed this appeal.

We hold that the district court lacked subject-matter jurisdiction over this case. Congress granted federal courts jurisdiction to hear personal-injury claims arising from, as relevant here, "extrajudicial killings" committed or materially supported by state sponsors of terrorism. But because the attacker in this case (fortunately) did not kill anyone, the attack that caused Rotem and Yoav's injuries was not an "extrajudicial killing" over which Congress has provided subject-matter jurisdiction. Nor have the plaintiffs identified any other basis for our jurisdiction against the foreign-government defendants. We therefore vacate the judgment of the district court with respect to the plaintiffs before this court and remand for dismissal of those plaintiffs' claims.

I

A

The Foreign Sovereign Immunities Act of 1976 ("FSIA") codified a common-law rule that, for "more than a century and a half," had generally exempted foreign sovereigns from the reach of American courts. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983); see Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891 (codified as amended at 28 U.S.C. § 1602 et seq.).

This case concerns a statutory exception to that immunity. In 1996, Congress withdrew foreign sovereign immunity for lawsuits that seek money damages for personal injury or death from a state sponsor of terrorism that has engaged in an "act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources * * * for such an act[.]" Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 221, 110 Stat. 1214, 1241. This provision, which is commonly referred to as the "terrorism exception," is now codified at 28 U.S.C. § 1605A(a)(1).

Congress also created a cause of action for U.S. citizens, members of the U.S. armed forces, and U.S. government employees who have been injured by foreign states' acts or sponsorship of terrorism. 28 U.S.C. § 1605A(c). All others suing under the terrorism exception must rely on state- or foreign-law causes of action. Fraenkel v. Islamic Republic of Iran, 892 F.3d 348, 353 (D.C. Cir. 2018); see Owens v. Republic of Sudan, 864 F.3d 751, 809 (D.C. Cir. 2017), vacated on other grounds, Opati v. Republic of Sudan, 590 U.S. 418, 140 S.Ct. 1601, 206 L.Ed.2d 904 (2020).

Three additional preconditions generally must be met for the terrorism exception to apply. First, the foreign state was designated a "state sponsor of terrorism at the time [of] the act * * * or was so designated as a result of such act[.]" 28 U.S.C. § 1605A(a)(2)(A)(i)(I). Second, "at the time [of] the act," either a victim of the act or the claimant in the suit was an American national, a member of the U.S. armed forces, or an employee or contractor for the U.S. government acting within the scope of their employment. Id. § 1605A(a)(2)(A)(ii). And third, if "the act occurred in the foreign state against which the claim has been brought," the claimant gave the foreign state a "reasonable opportunity" to arbitrate prior to filing a lawsuit. Id. § 1605A(a)(2)(A)(iii).

B

On December 14, 2015, Rotem Golan, an Israeli citizen, and her husband Yoav Golan, an American citizen, were waiting with others at a bus stop in Jerusalem when a terrorist deliberately rammed his car into the crowd. Borochov v. Islamic Republic of Iran, 589 F. Supp. 3d 15, 28-29 (D.D.C. 2022). The car's impact "hurled" Rotem and Yoav into the bus stop's glass wall. Id. at 29. The attacker had an axe in his car that he "likely intended to use" against those at the bus stop, but an onlooker shot him before he could inflict any further harm. Id. The attacker was the only person who died in the terrorist incident. Id.¹

Rotem and Yoav were both badly injured. Borochov, 589 F. Supp. 3d at 29. Rotem's legs were lacerated, requiring stitches, and she suffered a sprained knee ligament. Id. The injuries caused her to miss two months of her teaching internship. Id. The car crushed Yoav's leg and both dislocated and fractured his shoulder. Id. Yoav and Rotem also "suffered mental and emotional injuries" from the attack. Id. Several family members who witnessed their relatives' pain and suffering in the aftermath of the attack themselves sustained mental and emotional injuries.

The district court found that the attacker was acting on behalf of the terrorist organization Hamas, which praised him in the wake of the attack as a "son of the Hamas movement." Borochov, 589 F. Supp. 3d at 29. The court also found that Iran supported Hamas "for the past 30 years" through the provision of massive financial support, including weapons, training, and "suitcases of money." Id. at 27-28. The district court further found that Syria gave Hamas "operational freedom, political legitimacy, protection, and training[,]" without which "Hamas could not have undertaken" the attack. Id. at 26-27.

C

On September 24, 2019, Rotem, Yoav, and their family members sued Iran and Syria, alleging tort claims of, among other things, battery, assault, intentional infliction of emotional distress, and aiding and abetting the terrorist attack. See Second Am. Compl. ¶¶ 89-135. Several of the plaintiffs are American citizens, and they invoked 28 U.S.C. § 1605A(c). Others are not. Those Israeli-citizen plaintiffs instead brought common-law tort claims. Second Am. Compl. ¶¶ 102, 107, 112, 119, 129.

Neither Iran nor Syria appeared to defend against the action, so the Clerk entered defaults against them. See Dockets 20-24; see also FED. R. CIV. P. 55(a).

After entry of the defaults, each plaintiff was required to "establish[ ] his claim or right to relief by evidence satisfactory to the court" before the court could enter a default judgment. 28 U.S.C. § 1608(e); see Maalouf v. Islamic Republic of Iran, 923 F.3d 1095, 1113 (D.C. Cir. 2019). Entry of default is critical for FSIA plaintiffs because foreign state sponsors of terrorism are typically "unlikely to pay," Braun v. United States, 31 F.4th 793, 795 (D.C. Cir. 2022), and a default judgment qualifies for payment through the U.S. Victims of State Sponsored Terrorism Fund, 34 U.S.C. §§ 20144(b)(2)(B), 20144(j)(4).

For the Israeli members of the Golan family bringing tort claims, District of Columbia choice-of-law rules required the application of Israeli law as to both liability and damages. See Borochov, 589 F. Supp. 3d at 37-38; see also Cassirer v. Thyssen-Bornemisza Collection Found., 596 U.S. 107, 117, 142 S.Ct. 1502, 212 L.Ed.2d 451 (2022) ("A foreign state or instrumentality in an FSIA suit is liable just as a private party would be. That means the standard choice-of-law rule must apply.") (citation omitted).

After the plaintiffs submitted evidence and expert reports, the district court denied damage awards to all of the Israeli-citizen plaintiffs except Rotem.

The court began its decision by holding that it had subject-matter jurisdiction under the FSIA's terrorism exception for extrajudicial killings. Borochov, 589 F. Supp. 3d at 34 (citing 28 U.S.C. § 1605A(a)(1)). The court found that two victims of the attack were U.S. citizens and both Syria and Iran were designated state sponsors of terrorism. Id. at 30. It then found that Iran and Syria had provided material support for extrajudicial killings by Hamas members. Id. at 32-33. The court acknowledged that the terrorist attack against Rotem and Yoav was not an "extrajudicial killing," since nobody but the perpetrator died. Id. at 31-32. Nonetheless, the district court concluded that it had jurisdiction because Iran and Syria had provided material support for the purpose of conducting extrajudicial killing of Israelis. Id. at 32-33. Even though no killing resulted, the court held that jurisdiction attached so long as the material support was intended to cause an extrajudicial killing. Id.

On the merits, the district court held that Iran and Syria were liable for the plaintiffs' injuries. Borochov, 589 F. Supp. 3d at 35-40. The court noted that the plaintiffs had filed declarations from Israeli law professors that discussed some of the relevant bases for liability under Israeli law. Id. at 38-40. But as to damages, the district court found that the plaintiffs "fail[ed] to detail how and in what amount Israeli law...