Oveissi v. Islamic Republic of Iran

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 12, 2009 Decided July 28, 2009

No. 07-7132

AMIR REZA OVEISSI,

APPELLANT

v.

ISLAMIC REPUBLIC OF IRAN AND IRANIAN MINISTRY OF

INFORMATION AND SECURITY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 03cv01197)

James W. Spertus argued the cause for appellant. With him

on the brief was Ezra D. Landes

Before: ROGERS, GARLAND, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: The plaintiff in this case is the

grandson of Gholam Oveissi, who was chief of the Iranian

armed forces under the Shah’s regime. Members of the terrorist

organization Hezbollah, operating under the name Islamic Jihad,

assassinated Oveissi in Paris in 1984. In 2003, the plaintiff sued

2

the Islamic Republic of Iran and the Iranian Ministry of

Information and Security (MOIS) in the United States District

Court for the District of Columbia, alleging that the defendants

had funded and directed Islamic Jihad. The district court found

that Iran and MOIS were not entitled to sovereign immunity and

that they were culpable in Oveissi’s murder, but the court

rejected the plaintiff’s claims for intentional infliction of

emotional distress and wrongful death. We conclude that the

court applied the wrong law to the plaintiff’s claims because it

conducted an erroneous choice-of-law analysis. Accordingly,

we reverse the judgment and remand the case for further

proceedings.

I

Gholam Oveissi, an Iranian citizen, served as a four-star

general and chief of Iran’s armed forces until early 1979. In that

year, revolutionaries deposed the Shah and established an

Islamic Republic. Oveissi, a supporter of the Shah’s

government, fled the country, traveling first to the United States

and then to France, where he took up residence in Paris.

Oveissi’s son and daughter-in-law also fled from Iran to the

United States. Their son, plaintiff Amir Oveissi, was born

during their stay in California. Several months after the

plaintiff’s birth, his family moved to Paris, where they shared an

apartment with Gholam Oveissi.

“While the family lived together in Paris, Gholam was

outspoken in his opposition to Iran’s revolutionary government

and met with other expatriates in the family’s apartment.”

Oveissi v. Islamic Republic of Iran, 498 F. Supp. 2d 268, 274

(D.D.C. 2007). Fearing reprisal for his political views, Oveissi

hired a bodyguard. Despite this precaution, on February 17,

1984, Oveissi was shot and killed while he walked on a crowded

Paris street. Members of the terrorist group Hezbollah,

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operating under the name Islamic Jihad, “immediately claimed

responsibility,” and the district court found “[n]o reason . . . to

dispute this claim.” Id. Oveissi’s family left Paris as soon as

they learned of the assassination, traveling first to Morocco for

eighteen months and then to the United States, where they

eventually settled in Virginia.

On June 2, 2003, the plaintiff filed a complaint against Iran

and MOIS in the United States District Court for the District of

Columbia, invoking the court’s jurisdiction under the Foreign

Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602 et seq.

The complaint alleged causes of action for, inter alia, intentional

infliction of emotional distress (IIED) and wrongful death. The

plaintiff filed an amended complaint on December 31, 2005, and

effected service of process through diplomatic channels on May

30, 2006, pursuant to 28 U.S.C. § 1608(a)(4).

Iran failed to enter an appearance or respond to the

complaint. The FSIA, however, “does not automatically entitle

a plaintiff to judgment when a foreign state defaults,” and

instead requires a court “to satisfy itself that [the plaintiff has]

established a right to relief.” Roeder v. Islamic Republic of Iran,

333 F.3d 228, 232 (D.C. Cir. 2003) (citing 28 U.S.C. § 1608(e)).

The district court therefore conducted a bench trial, receiving

evidence from the plaintiff, Gholam Oveissi’s bodyguard, and

an international terrorism expert. The court summarized the

expert’s testimony as follows:

[I]n the early 1980s, members of Hezbollah, under the

direction of MOIS, engaged in terrorist activities

outside the Middle East using the nom-de-guerre

“Islamic Jihad.” These activities included

assassinations of expatriate Iranian dissidents, mainly

in France. In [the expert’s] opinion, the killings were

intended to silence the Iranian regime’s critics and to

4

deter French intervention in Lebanon. . . . As well as

guiding Hezbollah’s terrorist activities, Iran, through

MOIS and other entities, provided logistical support

and training that, according to [the expert], were

crucial to Hezbollah’s ability to carry out the

assassinations.

Oveissi, 498 F. Supp. 2d at 273-74 (footnote omitted). Based on

this evidence, the court concluded that the then-applicable

terrorism exception to the FSIA, 28 U.S.C. § 1605(a)(7),

stripped Iran of its immunity from suit, and that Iran and MOIS

were culpable in Oveissi’s assassination.

The court nonetheless dismissed all of the plaintiff’s claims.

With respect to the IIED claim, the court began by conducting

a choice-of-law analysis. Applying District of Columbia choice-

of-law rules, it determined that ordinarily the “the law of the

plaintiff’s domicile at the time of the acts at issue” would govern

the claim. Oveissi, 498 F. Supp. 2d at 280. Although the court

found that the plaintiff was a domiciliary of France at the time

of the 1984 assassination, it concluded that domiciliary status

was not determinative in the instant case. “[T]he United States,”

the court said, “has a unique interest in having its domestic law

apply when its citizens are injured by state-sponsored terrorist

acts.” Id. at 281 (internal quotation marks omitted). Because

the plaintiff was born in California and had briefly resided there,

the court determined that it should apply California law to the

IIED claim. In light of its reading of California law, however,

the court concluded that the plaintiff “lack[ed] standing to bring

an IIED claim based on [Gholam Oveissi’s] death.” Id. at 283.

Without applying a choice-of-law analysis, the court found

the plaintiff’s wrongful-death claim barred by Lord Campbell’s

Act, a law enacted by the British Parliament in 1846 that became

the prototype for wrongful-death statutes in many American

5

states. Id. at 277-79; see Sea-Land Servs., Inc. v. Gaudet, 414

U.S. 573, 579-80 (1974). Lord Campbell’s Act permits certain

near relatives to bring a wrongful-death action against a

tortfeasor if the deceased would have been “entitled . . . to

maintain an Action . . . if Death had not ensued” and the

deceased had merely been injured. Lord Campbell’s Act, 9 &

10 Vict., ch. 93, An Act for compensating the Families of

Persons killed by Accidents (Aug. 26, 1846); see RESTATEMENT

(SECOND) OF TORTS § 925 cmt. a (1979). Although the plaintiff

is a U.S. citizen and is thereby entitled to bring an action under

the terrorism exception of the FSIA if the other statutory

conditions are met, see 28 U.S.C. § 1605(a)(7)(A), (B), Gholam

Oveissi was an Iranian citizen and could not himself have sued

under the terrorism exception had he survived the attack.

“Because no action could have been brought by the deceased if

still alive,” the court thought it had to dismiss the plaintiff’s

wrongful-death claim. Oveissi, 498 F. Supp. 2d at 279 (internal

quotation mark omitted).

The plaintiff now appeals from the district court’s dismissal

of his amended complaint.

II

We begin with some necessary background regarding the

FSIA. The Act “grants United States courts both subject matter

and personal jurisdiction (where service of process has been

made) over any claim against a foreign state as to which the

state is not entitled to immunity.” World Wide Minerals, Ltd. v.

Republic of Kazakhstan, 296 F.3d 1154, 1159 n.5 (D.C. Cir.

2002) (citing 28 U.S.C. § 1330(a), (b)). Under the FSIA, foreign

states generally are entitled to immunity unless the case falls

within one of a list of statutory exceptions. 28 U.S.C. § 1604;

see Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376

F.3d 1123, 1126 (D.C. Cir. 2004). In 1996, Congress amended

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the FSIA, adding an exception -- § 1605(a)(7) -- “colloquially

known as the ‘terrorism exception.’” Kilburn, 376 F.3d at 1126.

In pertinent part, that exception abrogates the sovereign

immunity of foreign states in civil cases “in which money

damages are sought against a foreign state for personal injury or

death that was caused by . . . extrajudicial killing.” 28 U.S.C.

§ 1605(a)(7). “This exception applies only if three additional

criteria are also satisfied: the foreign state was designated a

‘state sponsor of terrorism’ at the time the act occurred; the

foreign state was given a reasonable opportunity to arbitrate a

claim regarding an act that occurred within the state’s borders;

and the claimant or victim was a national of the United States.”

Kilburn, 376 F.3d at 1126-27 (citing 28 U.S.C. § 1605(a)(7)(A),

(B)).

In this case, the district court correctly determined that it

had jurisdiction over the plaintiff’s suit under the terrorism

exception of the FSIA. The assassination of Gholam Oveissi

clearly qualifies as an extrajudicial killing attributable to the

Iranian government; “Iran has been designated a state sponsor

of terrorism continuously since January 19, 1984, one month

prior to Gholam Ali Oveissi’s death,” Oveissi, 498 F. Supp. 2d

at 275; there was no need to give Iran an opportunity to arbitrate

the claim because the murder occurred outside Iran’s borders;

and the claimant, Amir Oveissi, is a U.S. citizen.

Although the FSIA grants jurisdiction over certain claims

against foreign countries, at the time the plaintiff filed his suit

the terrorism exception did not provide a federal cause of action

against a foreign state. See Cicippio-Puleo v. Islamic Republic

of Iran, 353 F.3d 1024, 1027 (D.C. Cir. 2004). The plaintiff was

therefore required to identify, and to bring his claims pursuant

to, some other “cause of action arising out of a specific source

of law” -- for example, state law. Acree v. Republic of Iraq, 370

F.3d 41, 59 (D.C. Cir. 2004), abrogated on other grounds by

7

Republic of Iraq v. Beaty, 129 S. Ct. 2183 (2009). While he did

not have to identify the specific source of law in his complaint,

the plaintiff did have to do so at an appropriate time in the

litigation.1 The plaintiff satisfied this obligation by identifying

his causes of action as arising under state statutory and common

law in his submissions to the district court.

One additional development in the statutory scheme merits

notice. After the district court issued its opinion in this case,

Congress enacted the National Defense Authorization Act for

Fiscal Year 2008 (NDAA), which, among other things, amended

the terrorism exception by repealing 28 U.S.C. § 1605(a)(7) and

adding a new exception codified at § 1605A. Pub. L. No. 110-

181, § 1083, 122 Stat. 3, 338-44 (2008). This new exception,

which became effective on January 28, 2008, is “more

advantageous to plaintiffs in several respects”; for example, it

“creat[es] a federal right of action against foreign states, for

which punitive damages may be awarded.” Simon v. Republic

of Iraq, 529 F.3d 1187, 1190 (D.C. Cir. 2008), rev’d on other

grounds sub nom. Republic of Iraq v. Beaty, 129 S. Ct. 2183

(2009); see 28 U.S.C. § 1605A.

1

See Acree, 370 F.3d at 43 (dismissing a suit because “[n]either

appellees’ complaint, nor their submissions to this court, nor the

District Court’s decision in their favor offers any . . . coherent

alternative causes of action” besides the FSIA itself); see also Kilburn,

376 F.3d at 1125 (allowing a suit to proceed, “[a]lthough the

complaint did not specify the legal sources of the . . . causes of

action,” when later pleadings clarified the sources of law underlying

the claims); cf. Owens v. Republic of Sudan, 531 F.3d 884, 894 (D.C.

Cir. 2008) (rejecting Sudan’s argument that “heightened specificity is

required of . . . pleading” regarding causation in an FSIA case, and

noting that “Sudan points to no Rule or statute that imposes a

heightened pleading requirement in the context of the terrorism

exception”).

8

In Simon, the circuit held that a “plaintiff in a case pending

under § 1605(a)(7) may not maintain that action based upon the

jurisdiction conferred by [the new] § 1605A; in order to claim

the benefits of § 1605A, the plaintiff must file a new action

under that new provision.” 529 F.3d at 1192. We also

determined, however, that “courts retain jurisdiction pursuant to

[former] §1605(a)(7) over cases that were pending under that

section when the Congress enacted the NDAA.” Id. Because

the plaintiff has not attempted to refile his case under § 1605A,

we have no occasion to consider whether he can allege claims

under that section. Instead, doing as Simon says, we retain

jurisdiction and consider this suit pursuant to § 1605(a)(7), the

section under which it was filed. See La Reunion Aerienne v.

Socialist People’s Libyan Arab Jamahiriya, 533 F.3d 837, 845

(D.C. Cir. 2008); Owens v. Republic of Sudan, 531 F.3d 884,

887 (D.C. Cir. 2008).

III

As noted in Part I, the district court dismissed the plaintiff’s

IIED claim on the ground that he lacked standing to assert such

a claim under California law, and it dismissed his wrongful-

death claim on the ground that it was barred by Lord Campbell’s

Act. Before we can consider whether the court accurately

construed California law or Lord Campbell’s Act, we must ask

whether the district court was right to apply them. And before

we can answer that question, we must first determine which

jurisdiction’s choice-of-law rules tell us which jurisdiction’s

substantive law to apply.

1. The FSIA does not contain an express choice-of-law

provision. FSIA § 1606 does, however, provide that a foreign

state stripped of its immunity “shall be liable in the same

manner and to the same extent as a private individual under like

circumstances.” 28 U.S.C. § 1606. This section ensures that, if

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an FSIA exception abrogates immunity, plaintiffs may bring

state law claims that they could have brought if the defendant

were a private individual. See First Nat’l City Bank v. Banco

Para El Comercio Exterior de Cuba, 462 U.S. 611, 622 n.11

(1983) (“[W]here state law provides a rule of liability governing

private individuals, the FSIA requires the application of that rule

to foreign states in like circumstances.”). In this way, “the FSIA

. . . operates as a ‘pass-through’ to state law principles.”

Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 12 (2d

Cir. 1996).

Relying on the language of § 1606, the Second Circuit has

held that courts considering issues governed by state substantive

law in FSIA cases should apply the choice-of-law rules of the

forum state. Barkanic v. Gen. Admin. of Civil Aviation of the

People’s Republic of China, 923 F.2d 957, 959-60 (2d Cir.

1991); see also O’Bryan v. Holy See, 556 F.3d 361, 381 n.8 (6th

Cir. 2009) (using the forum state’s choice-of-law rules in an

FSIA case). As the Second Circuit persuasively reasoned, “[t]he

goal of applying identical substantive laws to foreign states and

private individuals . . . cannot be achieved unless a federal court

utilizes the same choice of law analysis in FSIA cases as it

would apply if all the parties to the action were private.”

Barkanic, 923 F.2d at 959-60. The paradigm case involving

choice-of-law issues and solely private parties is one brought

under the federal courts’ diversity jurisdiction. See 28 U.S.C.

§ 1332. In such a case, the court would apply the forum state’s

choice-of-law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487, 496 (1941). We thus agree with the Second

Circuit that applying the forum state’s choice-of-law principles,

rather than constructing a set of federal common law principles,

better effectuates Congress’ intent that foreign states be “liable

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in the same manner and to the same extent as a private

individual” in FSIA actions. 28 U.S.C. § 1606.2

In this case, the plaintiff’s causes of action for IIED and

wrongful death are based solely on state substantive law, and the

choice-of-law rules of the forum -- the District of Columbia --

therefore apply to those claims. The district court did rely on

D.C. law when conducting its choice-of-law analysis for the

plaintiff’s IIED claim, and it concluded that California law

should supply the rule of decision. See Oveissi, 498 F. Supp. 2d

at 280-81. We review this determination de novo. Williams v.

First Gov’t Mortgage & Investors Corp., 176 F.3d 497, 499

(D.C. Cir. 1999); see also Felch v. Air Florida, Inc., 866 F.2d

1521, 1523 (D.C. Cir. 1989) (“This court treats choice of law

issues as matters of law over which it exercises de novo

review.”).

2. To determine which jurisdiction’s substantive law

governs a dispute, District of Columbia courts blend a

“governmental interests analysis” with a “most significant

relationship” test. Hercules & Co., Ltd. v. Shama Rest. Corp.,

566 A.2d 31, 40-41 & n.18 (D.C. 1989); see also Jaffe v.

Pallotta TeamWorks, 374 F.3d 1223, 1227 (D.C. Cir. 2004);

Stephen A. Goldberg Co. v. Remsen Partners, Ltd., 170 F.3d

2

By contrast, the Ninth Circuit has stated that, “[i]n the absence

of specific statutory guidance [in the FSIA], [it] prefer[s] to resort to

the federal common law for a choice-of-law rule.” Harris v. Polskie

Linie Lotnicze, 820 F.2d 1000, 1003 (9th Cir. 1987). In our view,

§ 1606 provides sufficient statutory guidance to resolve the issue. In

any event, as we discuss in Part III.2, all of the usual choice-of-law

factors -- including those identified as important by the Restatement

(Second) of Conflict of Laws -- point in the same direction, so there

is no reason to believe that applying a federal common law choice-of-

law rule would yield a different result in this case.

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191, 193-94 (D.C. Cir. 1999). “Under the governmental

interests analysis[,] . . . [a court] must evaluate the governmental

policies underlying the applicable laws and determine which

jurisdiction’s policy would be most advanced by having its law

applied to the facts of the case under review.” Hercules, 566

A.2d at 41 (internal quotation marks omitted). To determine

which jurisdiction has the most significant relationship to a case,

a court must “consider the factors enumerated in the

Restatement [(Second) of Conflict of Laws] § 145.” Id. at 40.

The four Restatement factors are: (1) “the place where the

injury occurred”; (2) “the place where the conduct causing the

injury occurred”; (3) “the domicil[e], residence, nationality,

place of incorporation and place of business of the parties”; and

(4) “the place where the relationship, if any, between the parties

is centered.” RESTATEMENT (SECOND) OF CONFLICT OF LAWS

§ 145(2) (1971).

In any given case, these considerations may point in

opposite directions and raise difficult questions concerning how

each should be weighted. In this case, however, we face no such

difficulty because the factors overwhelmingly point in the

direction of France. The assassination occurred in France. The

victim, Gholam Oveissi, was an Iranian who was domiciled

there. Although the plaintiff is a U.S. citizen, he, too, was

domiciled in France at the time his grandfather was murdered.

Hence, this is not a case in which we must choose between

applying the law of the jurisdiction where the tort occurred

versus that where the plaintiff was domiciled, as both are the

same. Moreover, in addition to having the most significant

relationship to the assassination, France has a strong

governmental interest in both deterring attacks within its

sovereign borders and ensuring compensation for injuries to its

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domiciliaries.3 The interest of California, which arises solely

out of the fact that the plaintiff was born and briefly resided

there -- for less than a year and not at the time of the attack -- is

slight by comparison. Cf. Jaffee, 374 F.3d at 1229 (concluding

that District of Columbia choice-of-law rules counsel applying

Virginia, rather than D.C., law to a suit brought on behalf of a

D.C. resident when “Virginia has a public policy which is

directly implicated” and “the interests of the District of

Columbia are at best attenuated”).

The district court recognized that, under ordinary D.C.

choice-of-law analysis, French law would apply to the plaintiff’s

claims. Oveissi, 498 F. Supp. 2d at 280. The court noted,

however, that “the United States has a unique interest in having

its domestic law apply when its citizens are injured by state-

sponsored terrorist acts.” Id. at 281 (internal quotation marks

omitted). This consideration, the court said, “elevates the

interests of the United States to nearly [their] highest point” and

requires resort to California law. Id. (internal quotation marks

omitted).

To support this proposition, the district court cited another

district court opinion, Dammarell v. Islamic Republic of Iran,

which applied the law of the American plaintiffs’ state of

domicile -- rather than that of Lebanon -- to a suit brought by

American victims of the 1983 bombing of the United States

Embassy in Beirut. 2005 WL 756090 (D.D.C. Mar. 29, 2005).

3

There is no contention here that application of French law

would “conflict[] with a strong public policy” of the District of

Columbia. Cf. Sami v. United States, 617 F.2d 755, 763 (D.C. Cir.

1979) (noting that “prevailing conflicts principles in the District of

Columbia and elsewhere . . . permit application of an alternate

substantive law when foreign law conflicts with a strong public policy

of the forum” (footnote omitted)).

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As the Dammarell court explained, the injuries in that case were

“the result of a state-sponsored terrorist attack on a United States

embassy and diplomatic personnel[, and the] United States has

a unique interest in its domestic law . . . determining damages in

a suit involving such an attack.” Id. at *20. The court cited the

Restatement (Third) of Foreign Relations Law § 402(3), which

provides that a country has jurisdiction to prescribe law with

respect to “‘certain conduct outside its territory by persons not

its nationals that is directed against the security of the state or

against a limited class of other state interests.’” Id. (quoting

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 402(3)

(1987)) (emphasis added). The court also cited a comment to

the Restatement for the proposition that this principle is

“‘increasingly accepted as applied to terrorist and other

organized attacks on a state’s nationals by reason of their

nationality, or to assassination of a state’s diplomatic

representatives or other officials.’” Id. at *20 n.16 (quoting

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 402 cmt.

g) (emphasis added).

We have no doubt that the United States has a strong

interest in applying its domestic law to terrorist attacks on its

nationals, especially when, as was the case in Dammarell, the

attacks are “by reason of their nationality.” But Gholam Oveissi

was not an American national; nor has the plaintiff suggested

that the defendants knew Oveissi had an American grandchild

or that the United States or its nationals were in any other way

the object of the attack. To the contrary, plaintiff’s counsel

conceded at oral argument that there is no evidence that

Oveissi’s assassination was intended to affect the United States.

See Oral Arg. Recording at 4:52-5:03. Moreover, the plaintiff’s

international terrorism expert testified that assassinations like

this one “were intended to silence the Iranian regime’s critics

and to deter French intervention in Lebanon.” Oveissi, 498 F.

Supp. 2d at 273 (emphasis added). Hence, if any country was

14

the object of the attack, it was France. Accordingly, all of the

relevant choice-of-law factors point to the application of French

law to the plaintiff’s claims.4

We close this discussion by emphasizing that we are not

setting forth a general choice-of-law rule for terrorism cases, but

merely applying the District of Columbia’s rules to the facts of

a case filed under former § 1605(a)(7). And we note that, for

terrorism cases filed under the new § 1605A, plaintiffs whose

cases meet the statutory requirements now have a federal cause

of action. See 28 U.S.C. § 1605A(c); Simon, 529 F.3d at 1190.

3. Having concluded that French law governs the

assassination of French-domiciliary Gholam Oveissi in France,

we do not address the plaintiff’s arguments that the district court

misconstrued California law and Lord Campbell’s Act in

dismissing his claims. We have no reason to suspect that French

and California law are the same with respect to IIED claims.

And we have every reason to doubt that France has adopted the

equivalent of an 1846 British statute to govern wrongful-death

claims in its courts. Accordingly, our opining on California law

or Lord Campbell’s Act would be beside the point. We leave it

to the district court on remand to evaluate the plaintiff’s claims

under French law.

4

We also note that, although choice-of-law rules can point to

different sources of substantive law for different claims, e.g., Logan

v. Providence Hosp., Inc., 778 A.2d 275, 280 (D.C. 2001), that is not

the case for the closely related IIED and wrongful-death claims at

issue here.

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IV

For the foregoing reasons, we reverse the judgment

dismissing the plaintiff’s amended complaint, and we remand

the case for further proceedings consistent with this opinion.

Reversed and remanded.