Kapar v. Islamic Replublic of Iran

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CHARLES KAPAR,

Plaintiff,

v. Case No. 02-cv-00078 (HHK)

ISLAMIC REPUBLIC OF IRAN, et al.,

Defendants.

MEMORANDUM OPINION

Charles Kapar was a passenger on a Kuwait Airways jet that was hijacked in 1984. He

sustained serious injuries when he was beaten and tortured during the hijacking. In September

2004, the Court awarded Kapar a $13.5 million default judgment under 28 U.S.C. § 1605(a)(7)—

the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act—on his claim

against Iran and the Iranian Ministry of Information and Security for their role in the hijacking.

Iran and the Ministry have never entered an appearance in this case or paid any part of the

judgment. Kapar did, however, recover almost $2.2 million under the Victims of Violence and

Trafficking Protection Act of 2002. Mot. to Amend J. at 5 n.15.

In 2008, four years after Kapar received his judgment, Congress repealed Section

1605(a)(7) and replaced it with 28 U.S.C. § 1605A. Section 1605A introduced a number of

benefits for victims of state-sponsored terrorism, including a provision making it easier to

execute judgments against foreign state assets. In order to take advantage of these changes,

Kapar now moves to amend his judgment pursuant to Rule 60(b)(5) and (6) of the Federal Rules

of Civil Procedure. He requests that his prior judgment be given effect as though it has been

issued pursuant to Section 1605A.

The Court will deny the motion to amend the judgment. The D.C. Circuit has read

Section 1605A to apply to claims originally brought under 28 U.S.C. § 1605(a)(7) only if such

claims were pending, or were related to a case that was pending, when Section 1605A was

passed. See Roeder v. Islamic Republic of Iran, 646 F.3d 56, 61 (D.C. Cir. 2011). Kapar

acknowledges that his claim, which resulted in a final judgment four years prior to the passage of

Section 1605A, does not qualify. He nevertheless seeks an amended judgment expanding his

relief. Rule 60(b), however, cannot be used to circumvent Congress’ express limitations on the

effect of 28 U.S.C. § 1605A, at least absent extraordinary circumstances not present here. Kapar

also requests an order under 28 U.S.C. § 1610(c) allowing him to attach Iranian assets to satisfy

his original judgment. The Court finds that Kapar has met the requirements of that section and

will issue an order accordingly.

I. Background

Understanding Kapar’s claim requires some background on former 28 U.S.C. §

1605(a)(7), the problems encountered by plaintiffs bringing suit under that provision, and

Congress’ response in Section 1605A. In 1996, Congress amended the Foreign Sovereign

Immunities Act (“FSIA”) to provide for the waiver of foreign sovereign immunity in claims

brought against countries that the State Department had officially designated as state sponsors of

terrorism. 28 U.S.C. § 1605(a)(7) (repealed). The so-called “state sponsor of terrorism”

exception to the FSIA applied if the country was found to have provided “material support or

resources” for terrorist acts. Id. As originally enacted, the statute did not make clear whether it

merely granted jurisdiction over a foreign state or also created a private right of action against

states or state officials. Congress attempted to clarify this ambiguity in 1997 by passing the

Flatow Amendment, which provided that an “official, employee, or agent of a [designated state

sponsor of terrorism]” shall be liable to U.S. citizens for injuries resulting from actions taken in

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the scope of official duty. Omnibus Consolidated Appropriations Act, Pub. L. No. 104-208, §

589, 110 Stat. 3009–1, 3009–172 (1996) (codified at 28 U.S.C. § 1605 note).

Many victims of state-sponsored terrorism sought and received monetary awards under

the Flatow Amendment, but a number of practical and legal obstacles made it difficult to collect

on their judgments. First, the D.C. Circuit substantially limited the ability of plaintiffs to bring

claims under the Flatow Amendment in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d

1024 (D.C. Cir. 2004). The court held that FSIA merely grants jurisdiction and that the Flatow

Amendment added a private right of action only against officials, employees, and agents of a

foreign state in their personal capacities, and not against the state itself or state officials in their

official capacities. Id. at 1027–34. As a result of Cicippio-Puleo, many plaintiffs—including

Kapar—began bringing claims under state tort law, using FSIA as a basis for jurisdiction. In re

Islamic Republic of Iran Terrorism Litigation (“Iran Terrorism Litigation”), 659 F. Supp. 2d 31,

52–53 (D.D.C. 2009) (collecting cases).

For those plaintiffs who succeeded in obtaining state law judgments against Iran, a

further difficulty arose in satisfying those judgments because property held by foreign sovereigns

is generally immune from attachment and execution absent a waiver of foreign sovereign

immunity. A complex interplay of statutes and executive orders also prevented what little

property most foreign states have in United States from being attached. See generally id. at 49–

55 (discussing the many hurdles faced by plaintiffs in enforcing judgments). Until 2008, the

only exception was limited to “property relating to the commercial activities of the foreign

sovereign.” Id. at 52–53. As a result, most plaintiffs found it difficult or impossible to enforce

judgments against Iran. See Eisenfeld v. Islamic Republic of Iran, 172 F. Supp. 2d 1, 9 (D.D.C.

2000).

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In 2008, Congress repealed Section 1605(a)(7) through the passage of Section 1083 of

the National Defense Appropriations Act (“NDAA”), and replaced it with 28 U.S.C. § 1605A.

Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338–44 (2008). Although the scope of the waiver of

foreign sovereign immunity is identical under both sections, Section 1605A provided a number

of substantive rights and remedies that were previously unavailable to plaintiffs under Section

1065(a)(7). Two provisions are particularly relevant to this case. First, 28 U.S.C. § 1605A(c)

creates an express cause of action against state sponsors of terrorism, effectively “abrogat[ing]”

the D.C. Circuit’s decision in Cicippio-Puleo. Gates v. Syrian Arab Republic, 646 F.3d 1, 3

(D.C. Cir. 2011). Second, Section 1605A facilitates satisfaction of judgments by making

additional property of a state, agency, or instrumentality “subject to attachment in aid of

execution, or execution, under [28 U.S.C. § 1610].” 28 U.S.C. § 1605A(g)(1).

Congress also allowed for application of Section 1605A to cases originally brought under

Section 1605(a)(7) in two ways. First, NDAA § 1083(c)(2) provides that a claim brought under

Section 1605(a)(7) that was “before the court[] in any form” at the time Section 1605A was

enacted shall “be given effect as if the action had originally been filed under” the new section.

NDAA § 1083(c)(2)(A). Second, NDAA § 1083(c)(3) provides that “[i]f an action arising out of

an act or incident has been timely commenced under section 1605(a)(7) . . . , any other action

arising out of the same act or incident may be brought under section 1605A.” NDAA §

1083(c)(3). The D.C. Circuit has read this language “to refer only to those cases timely

commenced under § 1605(a)(7) that were still pending when [Section 1605A] was passed.”

Roeder, 646 F.3d at 61. In either case the plaintiff must file his or her claim no later than 60

days after the entry of judgment on the prior or pending claim or the passage of 1605A,

whichever is later. NDAA §§ 1083(c)(2)(C), (c)(3).

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II. Legal Standard

Kapar seeks relief under either Rule 60(b)(5) or 60(b)(6). Rule 60(b)(5) authorizes the

court to vacate or amend a judgment when “applying [the judgment] prospectively is no longer

equitable.” Fed. R. Civ. P. 60(b)(5). Rule 60(b)(6) is a catch-all provision that authorizes the

court to amend a judgment for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).

Decisions to grant or deny a motion under Rule 60(b) are left to the sound discretion of the

district court and are reviewed for abuse of discretion. Twelve John Does v. District of

Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988) (reversing the district court’s decision to grant

a Rule 60(b) motion). The moving party bears the burden of satisfying the requirements of Rule

60(b). Id.

III. Analysis

Kapar acknowledges that he is unable to file a new claim under either avenue in NDAA §

1083(c). Mot. to Amend J. at 4–5. He nonetheless argues that Congress’ intent to facilitate the

attachment of Iranian assets and the defendants’ failure to satisfy the award justify modifying his

judgment under either Rule 60(b)(5) or 60(b)(6).

A. Relief Under Rule 60(b)(5)

Rule 60(b)(5) allows a court to amend “any judgment that has prospective effect.” 11

Wright & Miller, Fed. Prac. & Proc. Civ. § 2863. A judgment is “prospective” if it is either

“executory” or involves “the supervision of changing conduct or conditions.” Twelve John

Does, 841 F.2d at 1139. The consensus among Courts of Appeal, including the D.C. Circuit, is

that a claim for money damages is not “prospective” for the purposes of Rule 60(b)(5). Id. at

1138; accord Marshall v. Board of Ed., Bergenfield, N.J., 575 F.2d 417, 425 (3d Cir. 1978)

(collecting cases holding that Rule 60(b)(5) does not apply to judgments for money damages).

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Kapar has not satisfied Rule 60(b)(5)’s requirement that his judgment have prospective

application. His judgment is for damages stemming from past conduct—the opposite of

prospective relief. The fact that most of the judgment remains unsatisfied does not mean the

judgment involves “the supervision of changing conduct or conditions.” Twelve John Does, 841

F.2d at 1139. In Twelve John Does, the D.C. Circuit recognized that almost every court order,

even a claim for money damages, has some “reverberations into the future,” especially if the

judgment remains unsatisfied. Id. at 1138. The court nonetheless refused to find that a claim for

damages constitutes “prospective application.” Id. The same is true here. The possible future

effects of Kapar’s unsatisfied judgment do not authorize this Court to grant relief under Rule

60(b)(5).

B. Relief Under Rule 60(b)(6)

The grounds for relief available under Rule 60(b)(6) are not limited to judgments with

prospective effect. Relief under Rule 60(b)(6) does, however, require a showing of

“extraordinary circumstances.” Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir. 2007) (internal

quotations removed). Extraordinary circumstances include “an adversary’s failure to comply

with a settlement agreement incorporated into a court’s order[;] fraud by the ‘party’s own

counsel, codefendant, or third-party witness[;]’ or ‘the losing party[’s failure] to receive notice of

entry of judgment.’” More v. Lew, 34 F. Supp. 3d 23, 28 (D.D.C. 2014) (quoting 11 Wright &

Miller, Fed. Prac. & Proc. § 2864). Particularly notable for present purposes, “[i]intervening

developments in the law by themselves rarely constitute extraordinary circumstances” under

Rule 60(b)(6). Agostini v. Felton, 521 U.S. 203, 239 (1997); accord Acree v. Republic of Iraq,

No. 08-5375, 2009 WL 1953503 (D.C. Cir. Feb. 17, 2009) (holding that a change in binding

precedent after the D.C. Circuit had issued a final judgment did not warrant reconsideration

under Rule 60(b)(6)). A motion under Rule 60(b)(6) also must be filed within a reasonable time.

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“In this Circuit, courts almost uniformly deny Rule 60(b)(6) motions as untimely when they are

filed more than three months after judgment.” Carvajal v. Drug Enforcement Admin., 286

F.R.D. 23, 26 (D.D.C. 2012).

Kapar points to a number of factors that he argues constitute extraordinary circumstances

sufficient to satisfy Rule 60(b)(6). First, he notes the unavailability of relief under NDAA §

1083(c), despite “Congress[ional] intent[] for Mr. Kapar, as a victim of a terrorist attack

sponsored by the Islamic Republic of Iran, to be a beneficiary of the extended powers of §

1605A.” Mot. to Amend J. at 4. Second, Kapar argues that if his judgment remains under 28

U.S.C. § 1605(a)(7), it is vulnerable to attack based on the D.C. Circuit’s holding in Cicippio-

Puleo that 28 U.S.C. § 1605(a)(7) and the Flatow Amendment do not create a cause of action

against foreign states. Id. at 5–6. Although Kapar’s judgment is based in part on District of

Columbia common law, he asserts that a claim based on state law alone would foreclose the

more generous collection opportunities available to other plaintiffs with judgments under 28

U.S.C. § 1605A. Id. at 6. And finally, Kapar emphasizes that he is not seeking a substantive

change to his judgment to bring a new cause of action or to re-open prior proceedings that are

final, and that defendants have been on notice of his claims since 2004. Id.

i. Intended Beneficiaries

Kapar’s first argument—that he is precluded from seeking relief under the 2008 revisions

despite being the “intended . . . beneficiary of the extended powers of § 1605A,” Id. at 4—rests

on a false premise. It is a “‘well-established rule that the plain language of [a statute’s] enacted

text is the best indicator of intent.’” Utah v. Evans, 536 U.S. 452, 496 (2002) (quoting Nixon v.

United States, 506 U.S. 224, 232 (1993)). Here, the statutory text provides for application of

Section 1605A only if certain prerequisites are met, none of which Kapar satisfies. To say

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Congress “intended” Kapar to be the beneficiary of Section 1605A would ignore the words that

Congress actually used to express that intent.

Furthermore, Kapar’s request is in considerable tension with the strong “presumption

against statutory retroactivity.” Landgraf v. USI Film Prods., 511 U.S. 244, 272 (1994).

“Congressional enactments and administrative rules will not be construed to have retroactive

effect unless their language requires this result.” Bowen v. Georgetown Univ. Hosp., 488 U.S.

204, 208 (1988). Moreover, the reconsideration Kapar seeks would undermine the principal of

judicial finality, and is therefore “an extraordinary remedy which should be used sparingly.”

United States v. Phillip Morris Inc., 130 F. Supp. 2d 96, 99 (D.D.C. 2001) (discussing a motion

under Rule 59(e)). Here, not only does the language of 28 U.S.C. § 1605A and NDAA § 1083

not require retroactive application to Kapar’s claim, they actually foreclose the availability of

relief under their express terms.

Perhaps recognizing the limitations of the statute, Kapar directs the Court’s attention to

two cases from this district that discuss Rule 60(b) as a remedy for plaintiffs who cannot benefit

from Section 1605A directly. In Iran Terrorism Litigation, Judge Lamberth penned a

comprehensive opinion addressing whether multiple plaintiffs holding judgments against Iran

under former Section 1605(a)(7) qualified for retroactive treatment under 28 U.S.C. § 1605A.

The court noted that there was considerable confusion among plaintiffs’ counsel regarding the

application of NDAA § 1083(c)(2) and (3) to cases that were filed under Section 1605(a)(7).

659 F. Supp. 2d at 66. As a result of this confusion, many plaintiffs with judgments that

otherwise would have been eligible for the advantages of NDAA § 1083(c) failed to follow the

required procedures and missed the 60-day statute of limitations. Id. at 92–108. Due to NDAA

§ 1083(c)’s “lack of clarity” and a dearth of law on which plaintiffs’ counsel could rely, the court

suggested that Rule 60(b)(1)—which provides for relief based on “mistake, inadvertence,

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surprise, or excusable neglect”—or Rule 60(b)(6) could potentially provide relief to plaintiffs

who did not follow the appropriate procedures. Id. at 108–09. Judge Lamberth emphasized,

however, that plaintiffs face a “significant burden” under Rule 60(b) and “must detail how their

prior actions under § 1605(a)(7) would have fit within the framework established by [NDAA] §

1083(c) and therefore qualified for treatment under the new terrorism exception.” Id. at 109.

Judge Lamberth’s opinion provides no support to Kapar because he cannot explain how

his judgment under 28 U.S.C. § 1605(a)(7) would have been aided by NDAA § 1083(c). Indeed,

he concedes that he never qualified for relief under those provisions. Mot. to Amend J. at 4–5.

And even if Kapar could demonstrate that his claim once qualified for relief under NDAA §

1083(c)(3), he does not explain why the Court should excuse missing the filing deadline by over

six and a half years, nor does he argue that counsel labored under a good-faith misunderstanding

of 28 U.S.C. § 1605A. Motions under Rule 60(b)(6) must be filed within a “reasonable time,”

and the D.C. Circuit has cautioned that Rule 60(b)(6) is not an opportunity for litigants to “take a

mulligan.” Kramer, 481 F.3d at 792. In short, none of the justifications that Judge Lamberth

alluded to for Rule 60(b)(6) relief are present here.

Kapar also relies on Hegna v. Islamic Republic of Iran, in which the district court granted

a motion by the relatives of a terrorism victim to treat their Section 1605(a)(7) judgment as

though it were based on Section 1605A. Kapar argues that both he and Hegna were on the same

hijacked plane and therefore their cases are factually similar. Mot. to Amend J. at 7. Hegna,

however, is different in several relevant respects. First, the plaintiffs in Hegna initially relied on

NDAA § 1083(c)(2) and the court assumed they met the 60-day filing deadline to bring a claim

under that paragraph. Hegna v. Islamic Republic of Iran, No. 00-cv-716, 2010 WL 9498617

(D.D.C. Apr. 29, 2010). Here, on the other hand, Kapar specifically disclaims any reliance on

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NDAA § 1083(c)(2) or (3), and did not meet the requirements of either section.1 Given the

importance of the presumption against statutory retroactivity to ensure the finality of judgments

and avoid separation of powers concerns, the Court will not expand the relief Congress granted

beyond the express terms of the statute.

ii. Execution and Attachment

Victims like Kapar with awards under Section 1605(a)(7) may look to the “property in

the United States of a foreign state . . . used for a commercial activity in the United States, . . .

regardless of whether the property is or was involved with the act upon which the claim is based”

in order to satisfy their judgments. 28 U.S.C. § 1610(a)(7). Kapar could also attempt to collect

from the Iranian Ministry of Information and Security if that agency were “engaged in

commercial activity in the United States.” Id. § 1610(b). In contrast, for awards under Section

1605A, the property of a foreign state, agency, or instrumentality available for attachment is not

limited by any reference to “commercial activity.” 28 U.S.C. § 1610(g). Congress therefore

made it much easier for Section 1605A plaintiffs to collect on their judgments, at least in theory.

Kapar also argues that the availability of the more flexible attachment provisions under Section

1605A constitutes an extraordinary circumstance that justifies modifying his judgment.

Unfortunately for Kapar, the D.C. Circuit has all but foreclosed his argument that Rule

60(b) provides a way for him to access the relief set forth in Section 1605A. In Bakhtiar v.

Islamic Republic of Iran, 668 F.3d 773, 774 (D.C. Cir. 2012), the plaintiffs missed the 60-day

filing deadline to convert their pending Section 1605(a)(7) action against Iran into a claim under

Section 1605A. Following an award of $12 million in compensatory damages, the plaintiffs

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The court later decided that the Hegna plaintiffs could not bring a new claim under NDAA §

1083(c)(3). Citing Roeder and concerns about res judicata and the separation of powers, it

interpreted that paragraph only to authorize suits related to cases pending at the time of its

passage. Hegna v. Islamic Revolutionary Guard Corps, 908 F. Supp. 2d 116 (D.D.C. 2012).

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moved under Rule 59 and Rule 60(b) to amend the judgment in order to seek punitive damages,

which the district court denied. Id. at 775. On appeal, plaintiffs’ primary contention was that

“they were not required to comply with the procedures and time limits set forth by Congress in

the 2008 law,” because “Federal Rules of Civil Procedure 59 and 60 provide alternative means

for them to seek punitive damages against foreign nations.” Id. The D.C. Circuit disagreed,

holding that “Rules 59 and 60 do not create additional options free from those statutory time

limits” of Section 1605A and NDAA § 1083(c). Id. To hold otherwise, the court concluded,

would be to render “the procedures and time limits established by Congress . . . largely

meaningless.” Id.

The only salient difference between Kapar’s claim and the one rejected in Bakhtiar is that

Kapar is seeking to increase the amount he can collect based on additional sources of property,

while the Bakhtiar plaintiffs were aiming to increase their recovery through an award of punitive

damages. Unfortunately for Kapar, the D.C. Circuit’s concerns in Bakhtiar were not limited to

reopening judgments to seek punitive damages. Rather, the court made clear that the statutory

“options for obtaining the benefits of § 1605A and seeking punitive damages” are exclusive. Id.

(emphasis added). Reference to Section 1605A in Section 1610(g)’s attachment provision is

quite clearly a benefit provided by the law. Kapar’s narrower attachment opportunities are not

an extraordinary circumstance justifying a modified judgment, but rather a feature of the statute.

iii. Conduct of Defendants

Kapar next argues that modification of his judgment is justified because the defendants

have known about his claims since 2004 and have taken no steps to seek relief from that

judgment or pay the award. Mot. to Amend J. at 5–6. While this may be true, Iran’s inaction

does not justify relief under Rule 60(b)(6). Defendants similarly ignored the plaintiffs’ judgment

in Bakhtiar, which the D.C. Circuit refused to modify. Nor has Iran failed to comply with a

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settlement agreement or engaged in fraud. More, 34 F. Supp. 3d at 28. As a result, Kapar has

not made a showing of extraordinary circumstances sufficient to justify modifying his final

judgment.

C. Order for Attachment and Execution

Kapar has not yet sought to execute or attach any assets of Iran or the Ministry of

Information and Security to satisfy his original judgment. Mot. to Amend J. at 7.

Approximately $11.3 million of the judgment remains unpaid. In order to attach or execute upon

any available property, he requires an order from the court under 28 U.S.C. § 1610(c). Before a

court can issue that order, it has to determine “that a reasonable period of time has elapsed

following the entry of judgment” and that “any notice required under section 1608(e)” has been

given. Id. The Court agrees that both requirements have been met. Kapar was not able to serve

Iran pursuant to any special arrangement or “applicable international convention.” 28 U.S.C. §§

1608(a)(1), (2); Mot. to Amend J. at 7–8. Upon his request, the court clerk attempted mail

service in January 2008. 28 U.S.C. § 1608(a)(3); Certificate of Clerk, Jan. 28, 2008, ECF No.

25. Diplomatic service of the entry of judgment was finally completed in January 2009.2 28

U.S.C. § 1608(a)(4); Notice of Service, Jan. 23, 2009, ECF No. 27. Second, more than a decade

has passed since judgment was first entered in Kapar’s favor. Courts have found anywhere from

six weeks, Ned Chartering & Trading, Inc. v. Republic of Pakistan, 130 F. Supp. 2d 64, 67

(D.D.C. 2001), to a year, Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 798 F. Supp. 2d

260, 269 (D.D.C. 2011), to be a reasonable time since entry of judgment. Kapar has waited far

2

Kapar originally served the complaint in the same manner—the American Embassy in Bern

transmitted the documents to the Swiss Foreign Ministry, which sent them on to the Swiss

Embassy, American Interest Section, in Tehran. The Swiss Embassy confirmed that the Iranian

Ministry of Foreign Affairs returned the documents without comment. Return of Service &

Affidavit, July 25, 2002, ECF No. 8.

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longer than that, with no indication that defendants are taking any steps to pay the judgment.

The Court will therefore issue an order under 28 U.S.C. § 1610(c) authorizing the attachment and

execution of the uncollected portion of Kapar’s original judgment.

IV. Conclusion

For the foregoing reasons, the Court will deny Plaintiff’s Motion to Amend Judgment.

An Order will accompany this Memorandum Opinion.

CHRISTOPHER R. COOPER

United States District Judge

Date: May 22, 2015

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