Heiser v. Islamic Republic Of

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

ESTATE OF MICHAEL HEISER, et. al. )

)

Plaintiffs ) 00-CV-02329 (RCL)

v. )

ISLAMIC REPUBLIC OF IRAN, et al. )

Defendants ) Consolidated With

__________________________________________)

ESTATE OF MILLAR D. CAMPBELL, et al )

)

Plaintiffs ) 01-cv-02104 (RCL)

v. )

ISLAMIC REPUBLIC OF IRAN, et. al. )

)

Defendants )

_____________________________________________________________________________

MEMORANDUM OPINION

These consolidated actions, which are now in the post-judgment phase, arise from the

1996 terrorist bombing of the Khobar Towers, a residential complex on a United States military

base in Dhahran, Saudi Arabia. See Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229

(D.D.C. 2006) (Lamberth, J.). At the time of the attack, the Khobar Towers housed members of

the United States Air Force. Plaintiffs are the family members and estates of 17 of the 19

officers and airmen who were killed in the bombing. Pursuant to 28 U.S.C. § 1605(a)(7) of the

Foreign Sovereign Immunities Act (FSIA), plaintiffs litigated this civil action against defendants

the Islamic Republic of Iran, the Iranian Ministry of Information and Security, and the Iranian

Revolutionary Guard Corp. The defendants did not appear in these actions, and, consistent with

28 U.S.C. § 1608(e), this Court ultimately entered a default judgment in favor of plaintiffs in the

amount of $254,431,903.00. To date, that judgment remains unsatisfied.

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Last year, the 2008 National Defense Appropriations Act (“NDAA”) ushered in sweeping

changes in the law with respect to civil actions against state sponsors of terrorism. See Pub. L.

No. 110-181, 122 Stat. 3, § 1083. See also Simon v. Republic of Iraq, 529 F.3d 1187 (D.C. Cir.

2008) (construing § 1083 and discussing changes in the law with respect to actions against state

sponsors of terrorism). Among other changes, Section 1083 of the NDAA repeals § 1605(a)(7)

and replaces that provision with an entirely new state sponsor of terrorism exception, 1605A.

This new enactment is much more advantageous to plaintiffs than §1605(a)(7) in many signifcant

respects. For instance, in actions under §1605A, plaintiffs may now seek an award of punitive

damages against states sponsors of terrorism.

In an effort to lay claim to an award of punitive damages against Iran and to achieve all

the benefits of the new statute, plaintiffs, consistent with § 1803(c)(2) of the NDAA, filed a

motion requesting that this Court convert their prior action under § 1605(a)(7) to a new action

under the terms of § 1605A. This Court granted plaintiffs’ motion on January 13, 2008. See Dk.

# 143. Consistent with that ruling, this Court is now in the process of reviewing plaintiffs’

recommendations with respect to additional damages now available to these plaintiffs by virtue

of § 1605A.

In the motion now pending, plaintiffs ask this Court to provide a form and procedure for

Lis Pendens, one of the many new entitlements now available to FSIA plaintiffs who maintain

their actions under § 1605A. Specifically, plaintiffs rely on 28 U.S.C. § 1605A(g). That new

provision provides as follows:

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(g) PROPERTY DISPOSITION.—

(1) IN GENERAL.—In every action filed in a United States

district court in which jurisdiction is alleged under this section,

the filing of a notice of pending action pursuant to this section,

to which is attached a copy of the complaint filed in the action,

shall have the effect of establishing a lien of lis pendens upon any

real property or tangible personal property that is—

(A) subject to attachment in aid of execution, or

execution, under section 1610;

(B) located within that judicial district; and

(C) titled in the name of any defendant, or titled

in the name of any entity controlled by any defendant

if such notice contains a statement listing such controlled

entity.

(2) NOTICE.—A notice of pending action pursuant to this

section shall be filed by the clerk of the district court in the

same manner as any pending action and shall be indexed

by listing as defendants all named defendants and all entities

listed as controlled by any defendant.

(3) ENFORCEABILITY.—Liens established by reason of

this subsection shall be enforceable as provided in chapter 111

of this title.

Generally speaking, lis pendens is a doctrine of state law that enables parties involved in

litigation over real property to file notices with the Court indicating that any rights concerning

that property are subject to the outcome of the civil litigation. See 51 Am. Jur. 2d Lis Pendens §

2 (2008). Technically speaking, a notice of lis pendens is not a lien, but, assuming the proper

procedures are adhered to, the legal effect of the notice is that any third-party purchaser who

receives title to the property is bound by the outcome of the civil case, without any additional

rights to the property. See id. Because a notice of lis pendens severely undermines the

alienability of property, the procedure is usually limited to lawsuits that directly concern the right

to own or use real property. See id at § 8. Some jurisdictions, however, have allowed the

doctrine to be used in a broader range of civil actions. See Id.

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Prior to the enactment of § 1083, federal courts did not have procedures for the filing of

notices of lis pendens. See Elsea, Jennifer K., Suits Against State Sponsors of Terrorism,

Congressional Research Serv. Rep. RL31258, p. 51 (updated August 8, 2008). To the extent that

parties in civil actions in the federal courts had any right to avail themselves of lis pendens, it

was a right only to be found in the laws of the state jurisdictions and administered through the

state courts exclusively. Id. Now that § 1605A(g) is on the books, however, litigants pursuing

civil cases against state sponsors of terrorism are entitled to a federal lis pendens procedure

administered through the federal courts. No other federal civil actions qualify for such an

extraordinary measure.

The new power of lis pendens afforded to FSIA plaintiffs under § 1605A is exceedingly

broad. At the very outset of civil action against state sponsors of terrorism, plaintiffs may file a

notice in any federal district court “establishing a lien of lis pendens on any real property or any

tangible personal property” located within that federal district, provided such property is subject

to attachment in aid of execution, or execution, of the civil judgment that may be entered in the

plaintiffs’ case. See § 1605A(g)(1) (emphasis added). This new statutory provision offers little

in terms of specific guidance for how federal courts might implement lis pendens. Thus, the

devil may be in the details with respect to this new federally required and federally administered

procedure. This Court suspects that a variety of legal challenges and practical difficulties may

arise as plaintiffs in these terrorism cases initiate liens of lis pendens in federal judicial districts

throughout the country.

While the precise scope, application, and effectiveness of liens of lis pendens under §

1605A(g) remains to be seen, such concerns need not distract the Court at this time. In their

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motion, the plaintiffs in Heiser and Campbell merely ask that this Court establish the basic form

and procedure that they may use to begin filing their notices of lis pendens in accordance with the

new law. The procedures that the plaintiffs have proposed in this instance are reasonable and

consistent with both the terms of § 1605A(g) and the general practice of registering judgments on

a district court’s miscellaneous docket. Accordingly, a separate order granting the proposed form

and procedure will be issued this date. If at some future point in time the procedure approved

here appears to be in need of refinement, this Court may revisit this matter sua sponte as the

process moves forward.

ROYCE C. LAMBERTH

Chief Judge

Signed on March 31, 2009

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