Nasrin Mohammadi v. Islamic Republic of Iran

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2014 Decided April 3, 2015

No. 13-7109

MANOUCHEHR MOHAMMADI, ET AL.,

APPELLANTS

v.

ISLAMIC REPUBLIC OF IRAN, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-01289)

Larry Klayman argued the cause and filed the brief for

appellant.

Before: KAVANAUGH and SRINIVASAN, Circuit Judges,

and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: Plaintiffs, three Iranian

émigré siblings and the estate of their deceased brother, seek

recovery for imprisonment, torture, and extrajudicial killing

they allegedly suffered at the hands of the Islamic Republic of

Iran. The district court dismissed the complaint, finding that

it lacked subject-matter jurisdiction, principally because of

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defendants’ foreign sovereign immunity. The court also

denied plaintiffs’ motion for reconsideration and their

associated motion for leave to file a fourth amended

complaint. We affirm the district court.

I.

As college students in Tehran during the 1990s, plaintiff

Manouchehr Mohammadi and his late brother, Akbar

Mohammadi, became leaders in the Iranian pro-democracy

movement. As part of their political activism, the brothers

participated in the 1999 student protests.

Iranian officials arrested the brothers for their role in the

protests and confined them in Evin prison in Tehran, where

they allegedly suffered brutal physical and psychological

abuse and torture. According to plaintiffs’ testimony, the

brothers were repeatedly flogged, hung from the ceiling by

their hands, beaten to the point of unconsciousness, burned on

their genitalia, exposed to the elements, and subjected to

mock executions.

Akbar’s and Manouchehr’s sisters, Nasrin Mohammadi

and Simin Taylor, also allegedly suffered severe mistreatment

at the hands of the Iranian regime. Nasrin testified that an

Iranian agent attempted to murder her in Germany in 2002,

and Simin claims to have been imprisoned and threatened

with rape while living in Iran.

Akbar died in prison in 2006. Manouchehr fled Iran

while on temporary release from prison to attend Akbar’s

funeral. By late 2006, the three surviving siblings all had

settled in the United States. Nasrin and Simin ultimately

obtained United States citizenship, and Manouchehr became a

lawful permanent resident. Plaintiffs contend that Iranian

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agents continued to harass them in the United States,

threatening them over the phone with murder, refusing to let

their parents leave Iran, hacking their computers, and

circulating doctored photographs of Nasrin depicted in an

immodest light.

In 2009, plaintiffs brought an action to recover for their

injuries. They named as defendants the Islamic Republic of

Iran, the Army of the Guardians of the Islamic Revolution

(the Revolutionary Guard), and two Iranian leaders, Ayatollah

Sayid Ali Hoseyni Khamenei and Mahmoud Ahmadinejad.

Plaintiffs amended their complaint on three occasions.

Because defendants never appeared in court to contest the

allegations against them, plaintiffs filed a motion for entry of

default and a default judgment. The district court granted the

motion for entry of default and scheduled an evidentiary

hearing to establish damages. The court also directed

plaintiffs to submit briefing addressing the basis for the

court’s subject-matter jurisdiction.

Following several rounds of supplemental briefing, the

district court dismissed plaintiffs’ complaint for lack of

subject-matter jurisdiction. Mohammadi v. Islamic Republic

of Iran, 947 F. Supp. 2d 48 (D.D.C. 2013). The court held

that the Foreign Sovereign Immunities Act, 28 U.S.C.

§§ 1602 et seq., afforded Iran and the Revolutionary Guard

immunity from the court’s jurisdiction. Mohammadi, 947 F.

Supp. 2d at 62-68. The court rejected plaintiffs’ reliance on

the Foreign Sovereign Immunity Act’s terrorism exception,

28 U.S.C. § 1605A. Id. That exception abrogates immunity

if, among other things, the complaint seeks damages for

“torture” or “extrajudicial killing” and the victim was a

“national of the United States” at the time of those acts. 28

U.S.C. § 1605A(a). The district court held that plaintiffs

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failed to qualify as United States “nationals” at the time of the

relevant acts in Iran, and that any acts postdating plaintiffs’

relocation to the United States failed to constitute “torture”

within the meaning of the statute. Mohammadi, 947 F. Supp.

2d at 68. With regard to the individual defendants, Khamenei

and Ahmadinejad, the court held that the claims against them

would be treated as claims against Iran itself and thus would

likewise be dismissed based on foreign sovereign immunity.

Id. at 72-73. Because the court concluded that it lacked

subject-matter jurisdiction, it also denied plaintiffs’ motion

for default judgment.

Plaintiffs filed a motion for reconsideration and an

accompanying motion for leave to file a fourth amended

complaint. The district court denied both motions.

Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d 48,

74 (D.D.C. 2013), recons. denied (D.D.C. Jul. 12, 2013).

Plaintiffs now appeal the dismissal of their third amended

complaint for lack of subject-matter jurisdiction and the

denial of their motions for reconsideration and for leave to file

a fourth amended complaint.

II.

The Foreign Sovereign Immunities Act (FSIA), 28

U.S.C. §§ 1602 et seq., affords the “sole basis for obtaining

jurisdiction over a foreign state” in United States courts.

Argentine Republic v. Amerada Hess Shipping Corp., 488

U.S. 428, 434 (1989). While the FSIA establishes a general

rule granting foreign sovereigns immunity from the

jurisdiction of United States courts, 28 U.S.C. § 1604, that

grant of immunity is subject to a number of exceptions, see id.

§§ 1605-1607. In their third amended complaint, plaintiffs

asserted subject-matter jurisdiction based solely on the

FSIA’s terrorism exception, 28 U.S.C. § 1605A. Reviewing

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the matter de novo, see National Air Traffic Controllers Ass’n

v. Federal Service Impasses Panel, 606 F.3d 780, 786 (D.C.

Cir. 2010), we agree with the district court’s conclusion that

the terrorism exception is inapplicable here.

The terrorism exception abrogates immunity in cases in

which a plaintiff seeks damages for personal injury or death

caused by “torture, extrajudicial killing, aircraft sabotage,

hostage taking, or the provision of material support or

resources for such an act,” if “engaged in by an official,

employee, or agent” of a foreign country. 28 U.S.C.

§ 1605A(a)(1). The exception further requires that (i) the

foreign country was designated a “state sponsor of terrorism

at the time [of] the act,” (ii) the “claimant or the victim was” a

“national of the United States” at that time, and (iii) the

“claimant has afforded the foreign state a reasonable

opportunity to arbitrate the claim.” Id. § 1605A(a)(2).

Because Iran has been designated a state sponsor of

terrorism since 1984, plaintiffs satisfy the first of those

conditions. See Heiser v. Islamic Republic of Iran, 735 F.3d

934, 937 (D.C. Cir. 2013); Roeder v. Islamic Republic of Iran,

646 F.3d 56, 58 n.1 (D.C. Cir. 2011). Plaintiffs, however, fail

to satisfy the second condition with regard to the torture and

extrajudicial killing allegedly committed against them while

in Iran, because none of them was a “national of the United

States” at the time of those acts.

The terrorism exception assigns the term “national of the

United States” the “meaning given that term in section

101(a)(22) of the Immigration and Nationality Act” (INA), 8

U.S.C. § 1101(a)(22). 28 U.S.C. § 1605A(h)(5). The

referenced provision of the INA, in turn, generally describes

“national of the United States” to mean either a “citizen of the

United States” or a “person who, though not a citizen of the

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United States, owes permanent allegiance to the United

States.” 8 U.S.C. § 1101(a)(22).

Here, it is undisputed that none of the plaintiffs was a

United States citizen between 1999 and 2006, when the

central alleged acts of torture and extrajudicial killing

occurred in Iran. Instead, plaintiffs argue that they qualified

as United States nationals during that time because they

“owe[d] permanent allegiance to the United States.” They

assert that Manouchehr, Akbar, and Nasrin had personally

pledged permanent allegiance to the United States and

disclaimed their loyalty to Iran following the “first signs of

persecution” in Iran, and that Nasrin exhibited her allegiance

by applying for and attaining United States permanent

resident status before Akbar’s death in 2006. Mohammadi,

947 F. Supp. 2d at 64.

Plaintiffs’ argument is foreclosed by our precedent. We

have held that “manifestations of ‘permanent allegiance’ do

not, by themselves, render a person a U.S. national.” Lin v.

United States, 561 F.3d 502, 508 (D.C. Cir. 2009). That is

because the “phrase ‘owes permanent allegiance’” in 8 U.S.C.

§ 1101(a)(22) is “a term of art that denotes a legal status for

which individuals have never been able to qualify by

demonstrating permanent allegiance, as that phrase is

colloquially understood.” Marquez-Almanzar v. INS, 418

F.3d 210, 218 (2d Cir. 2005); see Lin, 561 F.3d at 508

(relying on Marquez-Almanzar). The reference in 8 U.S.C.

§ 1101(a)(22) to a United States national as a person who

“owes permanent allegiance to the United States” is

descriptive of someone who has attained the status of United

States nationality through other statutory provisions; it does

not itself set forth an independent basis by which to obtain

that status. The language, that is, “describes, rather than

confers, U.S. nationality.” Marquez-Almanzar, 418 F.3d at

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218; see Lin, 561 F.3d at 508. The conferral of United States

nationality must come from elsewhere.

The sole such statutory provision that presently confers

United States nationality upon non-citizens is 8 U.S.C.

§ 1408. See Lin, 561 F.3d at 508; Marquez-Almanzar, 418

F.3d at 219. Plaintiffs make no claim that they qualify as

United States nationals under that provision, much less that

they did so at the time of the alleged torture and extrajudicial

killing in Iran. Section 1408 describes four categories of

persons who “shall be nationals, but not citizens, of the

United States at birth.” 8 U.S.C. § 1408. Those categories

generally consist of persons born in, or possessing a specified

personal or parental connection with, an “outlying possession

of the United States,” id. § 1408(1)-(4), presently defined as

American Samoa and Swains Island, id. § 1101(a)(29). See

Lin, 561 F.3d at 508; see also Hashmi v. Mukasey, 533 F.3d

700, 703 n.1 (8th Cir. 2008) (noting that the category of those

who owe “permanent allegiance to the United States . . . [is]

apparently limited to residents of American Samoa and

Swains Island”).

The courts of appeals to consider the issue thus have

overwhelmingly concluded that the status of non-citizen

United States nationality is limited to those persons described

in 8 U.S.C. § 1408, and that, apart from that provision, an

effort to demonstrate “permanent allegiance to the United

States” does not render a person a United States national. See

United States v. Sierra-Ledesma, 645 F.3d 1213, 1224-26

(10th Cir. 2011); Abou-Haidar v. Gonzales, 437 F.3d 206,

207 (1st Cir. 2006); Omolo v. Gonzales, 452 F.3d 404, 409

(5th Cir. 2006); Sebastian-Soler v. U.S. Att’y Gen., 409 F.3d

1280, 1285-87 (11th Cir. 2005); Marquez-Almanzar, 418 F.3d

at 218-19; Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972

(9th Cir. 2003); Salim v. Ashcroft, 350 F.3d 307, 309-10 (3d

8

Cir. 2003) (per curiam). While one court of appeals has

indicated otherwise, see United States v. Morin, 80 F.3d 124,

126 (4th Cir. 1996), we specifically “join[ed] the majority”

approach in Lin, 561 F.3d at 508. (And the continuing

practical force of the Fourth Circuit’s decision in Morin

within that circuit appears unclear. See Fernandez v. Keisler,

502 F.3d 337, 348 (4th Cir. 2007).) Plaintiffs likewise err in

relying on certain district court decisions attributing United

States nationality to non-citizens based on unique

circumstances indicating a “permanent allegiance to the

United States.” See Peterson v. Islamic Republic of Iran, 515

F. Supp. 2d 25, 39 n.4 (D.D.C. 2007); Asemani v. Islamic

Republic of Iran, 266 F. Supp. 2d 24, 26 (D.D.C. 2003).

Those decisions predate ours in Lin.

After Lin, in short, plaintiffs’ professed “attitudes of

permanent allegiance do not help” them establish United

States nationality. 561 F.3d at 508. Plaintiffs thus fail to

satisfy the terrorism exception’s nationality requirement for

the 1999-2006 time period, when the central alleged acts of

torture and extrajudicial killing took place in Iran.

Since 2006, however, two of the plaintiffs have

unquestionably become “nationals” within the meaning of 8

U.S.C. § 1101(a)(22): Nasrin and Simin obtained United

States citizenship in 2009 and 2011, respectively. Plaintiffs

therefore contend that they can establish jurisdiction under the

terrorism exception with respect to events occurring after

Nasrin and Simin became United States citizens. That

argument could have merit, however, only if, after Nasrin

became a citizen in 2009, the Iranian regime engaged in

conduct against plaintiffs constituting “torture, extrajudicial

killing, aircraft sabotage, hostage taking, or the provision of

material support or resources for such an act.” See 28 U.S.C.

§ 1605A(a)(1), (a)(2). According to plaintiffs, the Iranian

9

regime continued to “torture” them in the United States by

making threatening phone calls, hacking certain of plaintiffs’

online accounts, and disseminating doctored, sexually explicit

photographs of Nasrin. We conclude that those alleged acts,

while certainly harassing and objectionable, fail to amount to

“torture” within the meaning of the terrorism exception.

The terrorism exception defines “torture” by reference to

the definition of that term contained in the Torture Victim

Protection Act (TVPA), 106 Stat. 73, note following 28

U.S.C. § 1350. See 28 U.S.C. § 1605A(h)(7). The TVPA, in

turn, defines torture as “any act, directed against an individual

in the offender’s custody or physical control, by which severe

pain or suffering . . . is intentionally inflicted on that

individual.” 28 U.S.C. § 1350 (note). It is doubtful that

plaintiffs could be considered to have been in the Iranian

regime’s “custody or physical control” after their relocation to

the United States.

Even assuming otherwise, the challenged acts postdating

plaintiffs’ settlement in the United States fail to satisfy the

statute’s severity requirement. Plaintiffs’ allegations did not

involve physical acts against them. And the non-physical acts

alleged—viz., threatening phone calls made from Iran,

hacking of Facebook and email accounts, and circulation of

explicit photographs—fall short of anything previously held

to constitute “torture” within the meaning of the TVPA. See

Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326

F.3d 230, 234 (D.C. Cir. 2003).

In addition to claiming that they have been subjected to

continuing torture after their settlement in the United States,

plaintiffs argue that Iran has engaged in “hostage taking”

within the meaning of the FSIA’s terrorism exception because

the Iranian regime refuses to permit their parents to leave

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Iran. The district court found that argument to have been

waived on the ground that plaintiffs failed to press it until

their post-judgment motion for reconsideration. We find no

abuse of discretion in that ruling. See GSS Grp. Ltd. v. Nat’l

Port Auth., 680 F.3d 805, 811 (D.C. Cir. 2012).

In any event, a prohibition on international travel of the

kind alleged by plaintiffs would not constitute “hostage

taking.” The statute’s definition of “hostage taking”

incorporates the definition from Article 1 of the International

Convention Against the Taking of Hostages, see 28 U.S.C.

§ 1605A(h)(2), and that definition applies to a person who

“seizes or detains and threatens to kill, to injure or to continue

to detain another person,” Simpson, 326 F.3d at 234 (internal

quotation marks omitted). Even if plaintiffs’ parents are

barred from traveling abroad from Iran, there is no allegation

that they have been “seized or detained” within Iran under any

ordinary understanding of those terms. Courts thus have

found “hostage taking” in cases involving physical capture

and confinement, not restrictions on international travel. See,

e.g., Simpson v. Socialist People’s Libyan Arab Jamahiriya,

470 F.3d 356, 358 (D.C. Cir. 2006); Anderson v. Islamic

Republic of Iran, 90 F. Supp. 2d 107, 109-111, 113 (D.D.C.

2000).

Because plaintiffs fail to satisfy the statutory

requirements of the terrorism exception, Iran, as a “foreign

state,” is “immune from the jurisdiction” of federal courts.

See 28 U.S.C. § 1604. The district court concluded that it also

lacked jurisdiction over the Revolutionary Guard because the

FSIA defines “foreign state” to include “a political

subdivision of a foreign state or an agency or instrumentality

of a foreign state,” id. § 1603(a). Plaintiffs have forfeited any

challenge to that conclusion by failing to contest it on appeal.

See, e.g., World Wide Minerals, Ltd. v. Republic of

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Kazakhstan, 296 F.3d 1154, 1160 (D.C. Cir. 2002). Plaintiffs

also raise no challenge to the district court’s determination

that foreign sovereign immunity extended to the individual

defendants, Khamenei and Ahmadinejad. Immunity under the

FSIA therefore applies to all defendants.

In a final effort to establish subject-matter jurisdiction,

plaintiffs invoke the Alien Tort Statute, 28 U.S.C. § 1350.

The Alien Tort Statute, however, does not confer any waiver

of foreign sovereign immunity. See Amerada Hess, 488 U.S.

at 438-39; Enahoro v. Abubakar, 408 F.3d 877, 883 (7th Cir.

2005); Siderman de Blake v. Republic of Argentina, 965 F.2d

699, 713 n.13 (9th Cir. 1992). The Alien Tort Statute affords

jurisdiction for suits against private defendants, not against

foreign sovereigns. The FSIA provides the “sole basis for

obtaining jurisdiction over a foreign state.” Amerada Hess,

488 U.S. at 439. We therefore affirm the district court’s

dismissal of plaintiffs’ third amended complaint for lack of

subject-matter jurisdiction.

III.

After the district court granted dismissal, plaintiffs filed

motions for reconsideration and for leave to file a fourth

amended complaint. The only basis for jurisdiction under the

FSIA asserted in the third amended complaint was the

terrorism exception, 28 U.S.C. § 1605A. In the proposed

fourth amended complaint, plaintiffs sought to invoke 28

U.S.C. § 1605(a)(5), the FSIA’s noncommercial torts

exception, as an additional basis for jurisdiction. The district

court denied plaintiffs’ motion for reconsideration and

consequently denied as moot plaintiffs’ motion to file a fourth

amended complaint. Mohammadi, 947 F. Supp. 2d at 84. We

review the district court’s ruling for abuse of discretion, see

GSS Group Ltd., 680 F.3d at 811; In re InterBank Funding

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Corp. Securities Litigation, 629 F.3d 213, 218 (D.C. Cir.

2010), and we perceive no basis for overturning it.

Federal Rule of Civil Procedure 15(a) provides that leave

to amend shall be “freely give[n]” when “justice so requires.”

But after entry of judgment, a court has no obligation to grant

leave to amend unless a plaintiff first satisfies “Rule 59(e)’s

more stringent standard for setting aside that judgment.”

Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004) (internal

quotation marks omitted). “[R]econsideration of a judgment

after its entry is an extraordinary remedy which should be

used sparingly.” 11 Charles Alan Wright et al., Federal

Practice & Procedure § 2810.1 (3d ed. 2012). A district court

need not grant a Rule 59(e) motion unless there is an

“intervening change of controlling law, the availability of new

evidence, or the need to correct a clear error or prevent

manifest injustice.” Patton Boggs LLP v. Chevron Corp., 683

F.3d 397, 403 (D.C. Cir. 2012) (internal quotation marks

omitted).

Plaintiffs do not allege any change in applicable law, new

evidence, or clear error. Rather, they contend that the district

court’s failure to consider the fourth amended complaint

constituted a “manifest injustice” because they had included

the noncommercial torts exception as a jurisdictional basis in

the initial complaint and first two amended complaints, but

omitted it—allegedly inadvertently—from the third amended

complaint.

“[W]hen a plaintiff files a complaint in federal court and

then voluntarily amends the complaint,” however, “courts

look to the amended complaint to determine jurisdiction.”

Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473-74

(2007). The district court thus had no obligation to consider

jurisdictional bases set forth in prior iterations of the

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complaint. Moreover, plaintiffs made no reference to the

noncommercial torts exception at the evidentiary hearing or in

their supplemental briefing addressing jurisdiction. In those

circumstances, the district court acted comfortably within its

discretion in relying on the sole jurisdictional basis set forth in

the third amended complaint and associated supplemental

briefing. There could be no “manifest injustice” where, as

here, plaintiffs could have “easily avoided the outcome” but

either failed to “exercise[] due diligence,” Fox v. American

Airlines, Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004), or

“elected not to act” until after the entry of judgment, Ciralsky,

355 F.3d at 673.

Having concluded that the district court did not abuse its

discretion in denying plaintiffs’ motion for reconsideration

under Rule 59(e), we likewise find that the court did not err in

denying plaintiffs’ Rule 15(a) motion for leave to file a fourth

amended complaint. “Since the court declined to set aside the

judgment under Rule 59(e), it properly concluded that

[plaintiffs’] motion to amend under Rule 15(a) was moot.”

Ciralsky, 355 F.3d at 673.

* * * * *

We affirm the district court’s dismissal for lack of

subject-matter jurisdiction and its denial of plaintiffs’ motions

for reconsideration and for leave to file a fourth amended

complaint.

So ordered.