Rachel Fraenkel v. Islamic Republic of Iran

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 26, 2018 Decided June 8, 2018

No. 17-7100

RACHEL DEVORA SPRECHER FRAENKEL, INDIVIDUALLY, AS

PERSONAL REPRESENTATIVE OF THE ESTATE OF YAAKOV

NAFTALI FRAENKEL, AND AS THE NATURAL GUARDIAN OF

PLAINTIFFS A.H.H.F., A.L.F., N.E.F., AND S.R.F., ET AL.,

APPELLANTS

v.

ISLAMIC REPUBLIC OF IRAN, MINISTRY OF FOREIGN AFFAIRS,

ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-01080)

Robert J. Tolchin argued the cause for appellants. With

him on the briefs was Meir Katz. Rachel E. Weiser entered an

appearance.

Harry Phillips, Student Counsel, argued the cause as

amicus curiae to present arguments in support of portions of

the District Court=s orders at issue on appeal. With him on the

brief were Erica J. Hashimoto, appointed by the court, and

Joseph Flanagan and Vetone Ivezaj, Student Counsel.

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Before: GRIFFITH, Circuit Judge, and EDWARDS and

RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: On June 12, 2014,

sixteen-year-old Yaakov Naftali Fraenkel (“Naftali”) and two

of his classmates were taken hostage by members of Hamas

while on their way home from school in Israel’s West Bank. A

half-hour after they were taken hostage, the boys were killed

by their captors. Naftali’s family brought suit in District Court

against the Islamic Republic of Iran, Ministry of Foreign

Affairs (“Iran”), the Iranian Ministry of Information and

Security, and the Syrian Arab Republic (“Syria”) (collectively,

“Appellees”) under the terrorism exception to the Foreign

Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605A, for

providing material support to Hamas. The defendants failed to

respond to the complaint and the District Court entered a

default judgment in favor of the Fraenkels, awarding Naftali’s

estate $1 million for his pain and suffering and $50 million in

punitive damages, and his family $4.1 million in solatium

damages. See Fraenkel v. Islamic Republic of Iran (Fraenkel

I), 248 F. Supp. 3d 21, 43 (D.D.C. 2017). This appeal concerns

a challenge by the Fraenkels to the amount of damages awarded

them.

The Fraenkels argue that the District Court erred in failing

to determine the solatium damages awards in conformity with

the remedial scheme established in Estate of Heiser v. Islamic

Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006). We reject

this claim. The decision in Heiser may serve as a useful

reference point, but it is not binding precedent. District Court

judges have discretion under 28 U.S.C. § 1608(e) to grant

solatium awards based on the particular facts of each case,

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subject to abuse-of-discretion review for errors of law, clearly

erroneous factual findings, and faulty reasoning. See Hill v.

Republic of Iraq, 328 F.3d 680, 683 (D.C. Cir. 2003).

The Fraenkels also contend that the District Court erred in

awarding solatium damages in amounts less than the damages

awarded in Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53

(D.D.C. 2008). In justifying its decision, the District Court

explained that, unlike the victims in Gates – American

contractors servicing the U.S. military during the Iraq War –

Naftali was not targeted for being an American. Although

Naftali was a U.S. citizen, the District Court found that he was

captured and killed because he was Jewish-Israeli. The District

Court also found that the location of the Fraenkels’ home,

Naftali’s school, and the site of the abduction indicated that

Naftali and his family had “accepted the risk” of terrorist

attacks. Based on these considerations, the District Court

awarded solatium damages to Naftali’s family members that

were lower than the amounts awarded to the plaintiffs in Gates.

The Fraenkels claim that the District Court abused its

discretion in awarding solatium damages because the court’s

judgment was based on impermissible considerations and

clearly erroneous findings of fact. We agree.

For the reasons explained below, we reverse the District

Court’s judgment on the solatium damages awards and remand

for further consideration. We affirm the District Court’s

punitive damages and pain-and-suffering awards because the

judgments with respect to those awards were consistent with

the applicable law, adequately reasoned, and supported by the

evidence.

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I. BACKGROUND

A. Factual Background

Yaakov Naftali Fraenkel, a sixteen-year-old with Israeli

and U.S. citizenship, attended boarding school in the Gush

Etzion region of Israel’s West Bank. His mother, father, and

six siblings lived in Nof Ayalon, an Israeli settlement that

straddles the Green Line. On the evening of June 12, 2014,

Naftali headed home from school accompanied by two

classmates, Gilad Shaer and Eyal Yifrach. The boys waited at

a junction in Alon Shvut to hail a ride from passing cars.

According to Naftali’s mother, Rachelle Fraenkel, “[t]he boys

thought they were getting a ride home in a spot where

hitchhiking is very normal and usually safe.” Declaration of

Plaintiff Rachelle Fraenkel, at 8 ¶ 43 (June 27, 2016), reprinted

at Appendix (“App.”) 107.

Around 10:00 p.m., a car stopped for the young men. Inside

were two members of Hamas, who abducted the boys at

gunpoint. Around 10:30 p.m., Israeli emergency services

received a telephone call. The police heard a voice that sounded

like Gilad, who said that the boys had been kidnapped; they

also heard another voice speaking in Arabic and Hebrew saying

“put your head down.” The police then heard muffled sounds

of gunshots and a person moaning in physical pain. It was later

determined that the terrorists had shot and killed each boy.

After eighteen days of searching, the boys’ bodies were found

on land owned by the head of a Hamas cell. On August 20,

2014, Hamas officially took responsibility for the kidnapping

and murders of Naftali, Gilad, and Eyal.

On July 9, 2015, the Fraenkels brought this civil action in

District Court, alleging that Iran, the Iranian Ministry of

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Information and Security, and Syria materially supported

Hamas in connection with Naftali’s kidnapping and murder.

B. The Statutory Framework

Foreign states are immune from the jurisdiction of federal

courts, subject to certain exceptions codified in the Foreign

Sovereign Immunities Act of 1976 (“FSIA”). 28 U.S.C.

§ 1604; see Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428, 439 (1989) (“[T]he FSIA [is] the sole

basis for obtaining jurisdiction over a foreign state in federal

court.”). The Fraenkels’ action relies upon one such provision

in the FSIA, known as the “terrorism exception” to sovereign

immunity. See 28 U.S.C. § 1605A.

It is well understood that, over the years, Congress has

amended the FSIA to allow “massive judgments of civil

liability against nations that sponsor terrorism.” Leibovitch v.

Islamic Republic of Iran, 697 F.3d 561, 571 (7th Cir. 2012);

see also Owens v. Republic of Sudan, 864 F.3d 751, 763–65

(D.C. Cir. 2017). These legislative actions obviously have

aimed to deter state-sponsored terrorism. Consistent with this

legislative goal, § 1605A provides federal courts with

jurisdiction over, and withdraws sovereign immunity from,

suits

in which money damages are sought against a foreign

state for personal injury or death that was caused by an

act of torture, extrajudicial killing, aircraft sabotage,

hostage taking, or the provision of material support or

resources for such an act if such act or provision of

material support . . . is engaged in by an official,

employee, or agent of such foreign state while acting

within the scope of his or her office, employment, or

agency.

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28 U.S.C. § 1605A(a)(1).

Section 1605A also creates a federal cause of action

directly against foreign governments. Under § 1605A(c),

“national[s] of the United States” may sue certain foreign

governments – those designated by the U.S. government as

state sponsors of terrorism – for the acts described in

§ 1605A(a)(1) causing “personal injury or death.” Id.

§ 1605A(c). The statute specifies that, “[i]n any such action,

damages may include economic damages, solatium, pain and

suffering, and punitive damages.” Id.

In order to obtain a default judgment in a § 1605A action,

plaintiffs must “establish[] [their] claim or right to relief by

evidence satisfactory to the court.” Id. § 1608(e). Upon

obtaining a default judgment, successful plaintiffs may recover

damages by proving “that the projected consequences are

reasonably certain (i.e., more likely than not) to occur, and

must prove the amount of damages by a reasonable estimate.”

Hill, 328 F.3d at 684. Although these requirements “give an

unresponsive sovereign some protection against an unfounded

default judgment,” plaintiffs need not submit “more or

different evidence than [a court] would ordinarily receive;

indeed, the quantum and quality of evidence that might satisfy

a court can be less than that normally required.” Owens, 864

F.3d at 785.

The courts are not authorized to craft a body of federal

common law in deciding FSIA terrorism exception claims. See

Bettis v. Islamic Republic of Iran, 315 F.3d 325, 333 (D.C. Cir.

2003). However, a district court may rely on well-established

statements of common law, found in state reporters, the

Restatement of Torts, and other respected treatises, in

determining damages under § 1605A(c). See id.

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Finally, foreign national family members of an American

victim, who do not have a cause of action under § 1605A(c),

“may continue to pursue claims under applicable . . . foreign

law.” Leibovitch, 697 F.3d at 572. “Although § 1605A created

a new cause of action, it did not displace a [foreign national]

claimant’s ability to pursue claims under applicable state or

foreign law upon the waiver of sovereign immunity.” Id.; see

also Owens, 864 F.3d at 809.

C. The Litigation in District Court

As noted above, the Fraenkels brought this action against

Appellees in the District Court pursuant to the FSIA’s terrorism

exception, 28 U.S.C. § 1605A. Their complaint alleged that

Appellees provided material support and resources to Hamas

in furtherance of the hostage taking and murder of Naftali.

Although the Fraenkels properly served Appellees with process

under 28 U.S.C. § 1608(a), none of the defendants filed an

answer or otherwise appeared. Accordingly, the Fraenkels filed

a motion for default judgment.

1. Fraenkel I

On March 31, 2017, following a two-day evidentiary

hearing on liability and damages, the District Court entered a

default judgment in favor of the Fraenkels and against

Appellees. See Fraenkel I, 248 F. Supp. 3d at 43. The District

Court first explained that the Fraenkels had satisfactorily

proved each requirement for jurisdiction and waiver of

sovereign immunity under § 1605A(a). See id. at 35. Regarding

Appellees’ liability, the District Court determined that Rachelle

Fraenkel and her six surviving children had satisfactorily

proved their claims against Appellees under § 1605A(c)’s right

of action. See id. at 35–38.

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Abraham, Naftali’s father, lacks a private right of action

under § 1605A(c) because he is not a U.S. national.

Nonetheless, the District Court concluded that it had

jurisdiction over Abraham’s complaint pursuant to

§ 1605A(a)(1) and that foreign sovereign immunity was

waived pursuant to § 1605A(a)(2)(A)(ii)(I). Thus, the District

Court determined that it could consider Abraham’s Israeli law

tort claims. See Owens, 864 F.3d at 809 (allowing foreign

family members of U.S. nationals to bring claims under

alternative sources of law once sovereign immunity is waived

under § 1605A(a)). The District Court first applied District of

Columbia choice-of-law rules and concluded that Israeli law

governed Abraham’s tort claims. See Fraenkel I, 248 F. Supp.

3d at 38–39. After finding that Abraham had “established

negligence by Iran and Syria under Israeli law,” the District

Court entered judgment on his behalf. Id. at 40.

The only dispute now before this court concerns the District

Court’s damages awards to the plaintiffs. The U.S. national

plaintiffs received damages pursuant to § 1605A(c), which

authorizes “economic damages, solatium, pain and suffering,

and punitive damages.” The District Court awarded Naftali’s

estate $1 million for his pain and suffering, because “it is clear

from the evidence Naftali Fraenkel suffered from the moment

he was taken hostage up until his death,” a span of about 30

minutes. Fraenkel I, 248 F. Supp. 3d at 40–41.

Naftali’s mother and siblings also received solatium

damages, which is compensation for loss of society and for

emotional suffering or grief caused by the death of a family

member. The District Court found that

[t]he Fraenkel family is obviously very close. Each

member testified in detail about Naftali’s role in the

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family (second oldest and second son) and what he

meant in their lives specifically. The testimony

provided a picture of a loving family, wherein Naftali

played a central role in their spiritual and personal

lives. Multiple family members testified about

Naftali’s musical ability and how it enriched their

celebrations on the Sabbath and other holy days.

Without question, the lives of each member of the

family will be forever altered because Naftali is not

with them.

Fraenkel I, 248 F. Supp. 3d at 41. Finding “the evidence of the

Plaintiffs’ entitlement to solatium compensation fully

satisfactory,” the District Court awarded Rachelle and her

children $3.1 million in solatium damages. Id.

The District Court further determined that punitive

damages were warranted based on “the character of the

defendants’ act, . . . the nature and extent of harm to the

plaintiffs[,] . . . the need for deterrence, and . . . the wealth of

the defendants.” Id. Based on these considerations, the District

Court awarded the U.S. national Fraenkels $50 million in

punitive damages jointly and severally against Iran and Syria.

Id.

The District Court awarded Abraham Fraenkel

compensatory damages under Israeli law. Id. at 42–43. Taking

into account not only the pain that Naftali’s death caused his

father, but also the physical and emotional effects the loss has

had on Abraham’s daily life, the court awarded Abraham $1

million in solatium damages. Id. at 43.

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2. Fraenkel II

The Fraenkels moved to reconsider the District Court’s

damages awards, taking particular issue with the amount of

solatium damages awarded. They argued that the damages

were insufficient to provide them fair compensation and that

the awards departed from the remedial scheme established in

Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d

229 (D.D.C. 2006). In Heiser, the District Court reviewed prior

FSIA decisions and summarized the typical amounts awarded

for solatium based on the nature of the relationship between the

victim and his or her family members. See id. at 268–70. The

Fraenkels argued that the Heiser amounts are baselines that

should guide all other District Court judges in their awards of

solatium damages.

On June 28, 2017, the District Court denied the motion for

reconsideration. Fraenkel v. Islamic Republic of Iran

(“Fraenkel II”), 258 F. Supp. 3d 77 (D.D.C. 2017). It declined

to conform its damages awards to the amounts specified in

Heiser, noting that “Heiser is not binding; it is an opinion of a

valued colleague, not a superior court.” Id. at 82. The District

Court thus refused to rely on Heiser’s solatium amounts as a

baseline. Instead, the court held that the FSIA “require[s]

all . . . plaintiffs to justify their damages, which means that

damages must be reasonably tied to a plaintiff’s facts.” Id.

The District Court then elaborated on the reasoning behind

the original amounts of damages awarded. The court made it

clear that, in its view, the Fraenkels deserved damages awards

below the amounts awarded to the plaintiffs in Gates v. Syrian

Arab Republic, 580 F. Supp. 2d 53 (D.D.C. 2008). See

Fraenkel II, 258 F. Supp. 3d at 82. In reaching this conclusion,

the District Court rested on two principal points.

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First, the court found it significant that the victims in Gates

were abducted and brutally beheaded “because they were U.S.

citizens living abroad engaged in work at the behest of the

United States government.” Id. at 83. In contrast, the court

explained, the Fraenkels “are all natives of Israel.” Id. The

court reasoned that “Naftali was not targeted because he was a

U.S. citizen, and he was not a U.S. citizen inadvertently caught

up in the Israeli-Palestinian conflict . . . . To the contrary,

Naftali Fraenkel was an Hamas target because of his Israeli

citizenship.” Id. at 84.

Second, in contrast to its initial decision, which stated that

Naftali was kidnapped from Alon Shvut Junction, see Fraenkel

I, 248 F. Supp. 3d at 27, the court said on reconsideration that

he was kidnapped when hitchhiking home from Gush Etzion

Junction, see Fraenkel II, 258 F. Supp. 3d at 83. The court

noted that Appellants’ own expert had identified Gush Etzion

Junction as the “site of many terror attacks.” Id. The District

Court also stated in its decision on reconsideration that the

Fraenkels had “accepted the risks of living in a community

built across the Green Line in Israel and sending Naftali

Fraenkel 40 miles further into the West Bank for high school.”

Fraenkel II, 258 F. Supp. 3d at 83.

The trial judge appeared to believe that the foregoing

considerations and facts distinguished this case from Gates.

Therefore, in the view of the District Court, this justified

damages awards lower than those granted in Gates.

The Fraenkels appealed the denial of their motion for

reconsideration. Because neither Iran nor Syria has entered an

appearance in this litigation, the court appointed Georgetown

University Law Center’s Appellate Litigation Program as

amicus curiae to present arguments in support of the District

Court’s judgment.

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II. ANALYSIS

The issues on appeal are limited to the District Court’s

damages rulings. There is no doubt that the District Court had

jurisdiction over the Fraenkels’ claims pursuant to § 1605A(a)

and that this Court has jurisdiction over this appeal under 28

U.S.C. § 1291. It is uncontested that the Fraenkels have raised

proper causes of action – the U.S. Appellants under

§ 1605A(c), and Abraham under Israeli tort law – and

Appellees’ liability is also uncontested.

On appeal, the Fraenkels focus on three arguments. First,

they claim that in setting the awards for solatium damages, the

District Court relied on improper considerations and clearly

erroneous factual findings. Second, the Fraenkels argue that the

District Court misapplied Gates. And, finally, they contend that

the District Court “broke from precedent” in failing to follow

Heiser’s remedial scheme. We find merit in the first two

contentions.

A. Standard of Review

We review the District Court’s FSIA damages awards for

abuse of discretion. See Owens, 864 F.3d at 785; Hill, 328 F.3d

at 683. Abuse-of-discretion review of findings underlying a

default judgment in a FSIA case of this sort is “lenient.”

Owens, 864 F.3d at 785. However, the District Court’s

authority to award damages under § 1605A(c) is not without

limits. See United States v. Taylor, 487 U.S. 326, 336 (1988)

(“[D]iscretionary choices are not left to a court’s inclination,

but to its judgment; and its judgment is to be guided by sound

legal principles.”).

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“A district court would necessarily abuse its discretion if it

based its ruling on” an error of law, “a clearly erroneous

assessment of the evidence,” Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384, 405 (1990), or an improper weighing of the

factors limiting its discretion, see, e.g., Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 28 (2008); Taylor, 487 U.S. at 336.

In assessing whether the District Court has abused its

discretion, we must always “ensure that the purposes of the”

statute granting discretion to the trial court – in this case, the

FSIA – “are given effect.” Taylor, 487 U.S. at 336.

B. The District Court’s Judgment on Solatium Damages

In Flatow v. Islamic Republic of Iran, 999 F. Supp. 1

(D.D.C. 1998), the first case decided against Iran under the

terrorism exception to the FSIA, Judge Lamberth issued a

seminal opinion explaining the origins and particulars of

solatium damages. This opinion remains the best explanation

of solatium damages in this circuit and it continues to guide

dispositions of claims under the FSIA. See, e.g., Fraenkel I,

248 F. Supp. 3d at 41; Oveissi v. Islamic Republic of Iran, 768

F. Supp. 2d 16, 25 (D.D.C. 2011); Valore v. Islamic Republic

of Iran, 700 F. Supp. 2d 52, 85–86 (D.D.C. 2010); Belkin v.

Islamic Republic of Iran, 667 F. Supp. 2d 8, 22 (D.D.C. 2009)

(citing Dammarell v. Islamic Republic of Iran, 281 F. Supp. 2d

105, 196–97 (D.D.C. 2003) (relying on Flatow)); Sutherland v.

Islamic Republic of Iran, 151 F. Supp. 2d 27, 52 (D.D.C. 2001).

As explained in Flatow, “[s]olatium is traditionally a

compensatory damage which belongs to the individual heir

personally for injury to the feelings and loss of decedent’s

comfort and society. It began as a remedy for the loss of a

spouse or a parent. It has since expanded to include the loss of

a child.” 999 F. Supp. at 29. A claim may also be based on the

loss of a sibling if the claimant “prove[s] a close emotional

relationship with the decedent.” Id. at 30. “[M]ental anguish,

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bereavement and grief resulting from the fact of decedent’s

death constitutes the preponderant element of a claim for

solatium.” Id. “As damages for mental anguish are extremely

fact-dependent, claims require careful analysis on a case-by-

case basis.” Id. Judge Lamberth further explained the following

considerations that come into play in any judicial assessment

of solatium damages:

It is entirely possible to come to terms with the fact

of death, and yet be unable to resolve the sense of

anguish regarding the circumstances of death. This is

particularly true where the death was sudden and

violent. How the claimant learned of decedent’s death,

and whether there was an opportunity to say good-bye

or view the body can be a significant factor

contributing to the claimant’s anguish. . . .

The calculations for mental anguish and loss of

society share some common considerations. First, the

calculation should be based upon the anticipated

duration of the injury. Claims for mental anguish

belong to the claimants and should reflect anticipated

persistence of mental anguish in excess of that which

would have been experienced following decedent’s

natural death. When death results from terrorism, the

fact of death and the cause of death can become

inextricably intertwined, thus interfering with the

prospects for anguish to diminish over time.

The nature of the relationship between the claimant

and the decedent is another critical factor in the

solatium analysis. If the relationship is strong and

close, the likelihood that the claimant will suffer

mental anguish and loss of society is substantially

increased, particularly for intangibles such as

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companionship, love, affection, protection, and

guidance. Numerous factors enter into this analysis,

including: strong emotional ties between the claimant

and the decedent; decedent’s position in the family

birth order relative to the claimant; the relative

maturity or immaturity of the claimants; whether

decedent habitually provided advice and solace to

claimants; whether the claimant shared interests and

pursuits with decedent; as well as decedent’s

achievements and plans for the future which would

have affected claimants.

Finally, unlike lost wages, which can be calculated

with a fair degree of mathematical certainty, solatium

cannot be defined through models and variables. . . .

This is the paradox of solatium; although no amount of

money can alleviate the emotional impact of a child’s

or sibling’s death, dollars are the only means available

to do so.

Id. at 30–32 (citations omitted); see also Black’s Law

Dictionary 1607 (10th ed. 2014) (defining “solatium” as

“[c]ompensation; . . . damages allowed for hurt feelings or

grief, as distinguished from damages for physical injury”);

Flanagan v. Islamic Republic of Iran, 87 F. Supp. 3d 93, 115

(D.D.C. 2015) (describing “a claim for solatium” as “nearly

indistinguishable from a claim for” intentional infliction of

emotional distress); Stethem v. Islamic Republic of Iran, 201 F.

Supp. 2d 78, 89–90 (D.D.C. 2002) (listing five factors, derived

from Flatow, that district courts consider in calculating

solatium damages).

There is no authority to which we have been cited or which

we have been able to find that applies “assumption of risk”

principles to limit solatium damages under the FSIA. As a

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general matter, it is understood that “[a] plaintiff who

voluntarily assumes a risk of harm arising from the negligent

or reckless conduct of the defendant cannot recover for such

harm.” Restatement (Second) of Torts § 496A (1965).

However, as we explain below, it would make no sense to hold

that a family assumes the risk of having a son abducted on

public property and then killed by terrorists if they knew that

terrorists sometimes kidnapped innocent people in the area in

which he was abducted. This is not the law.

With this understanding of solatium damages, we turn now

to plaintiffs’ challenges to the District Court’s decision in this

case. As noted above, we reverse and remand the District

Court’s judgment with respect to the § 1605A(c) solatium

damages awards because the court’s judgment was based on

impermissible considerations and clearly erroneous findings of

fact. We also reverse and remand Abraham’s damages award

for the same reasons as the § 1605A(c) solatium damages

awards. Although Abraham’s damages were calculated under

Israeli law, we default to the application of federal law when

there is a lack of information regarding the proper calculation

of damages under foreign law, as there is here. See, e.g.,

Thuneibat v. Syrian Arab Republic, 167 F. Supp. 3d 22, 47

(D.D.C. 2016). There are two problems with the District

Court’s judgment: (1) the court’s reliance on the terrorists’

intent to target Israelis as a justification for limiting solatium

damages awarded to Naftali’s survivors; and (2) the court’s

supposition that solatium damages should be limited because

Naftali and his family assumed the risk that he might be

abducted and killed by terrorists. These considerations are

discussed in turn below.

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1. Nationality of the Victim

The District Court indicated that the Fraenkels should

receive solatium damages awards below the amounts awarded

to the plaintiffs in Gates because Naftali was targeted for being

Israeli while the victims in Gates were targeted for being U.S.

nationals. Fraenkel II, 258 F. Supp. 3d at 84. This rationale

does not withstand scrutiny. We can find no legal basis under

the FSIA for limiting a plaintiff’s solatium damages award

because the victim of an extrajudicial killing was targeted for

his affiliation with Israel, rather than the U.S.

Section 1605A does not distinguish between U.S. national

victims and dual-citizen victims in authorizing damages under

its private right of action. See 28 U.S.C. § 1605A(c). Indeed,

§ 1605A does not even require that the victim of the terrorist

attack be a U.S. national for his American relatives to recover

for his death. See id. § 1605A(a)(2)(A)(ii) (requiring as a

condition of waiving sovereign immunity and granting

jurisdiction that “the claimant or the victim was” a U.S.

national) (emphasis added); id. § 1605A(c)(1) (requiring the

claimant, not the victim, to be a U.S. national in order to

recover under the right of action). Under the statute, Naftali’s

national affiliation is irrelevant for the purposes of determining

the U.S. plaintiffs’ entitlement to damages under § 1605A(c).

It is undisputed here that Naftali’s mother and siblings are all

U.S. nationals.

The reason that Naftali was targeted is likewise irrelevant

for purposes of his father Abraham’s Israeli law claims.

Abrogation of sovereign immunity under § 1605A(a), on which

the court’s jurisdiction over his claims depends, requires that

the victim is a U.S. national. But that provision contains no

qualifier on whether the victim’s U.S. citizenship was relevant

to the act. Therefore, it does not matter under the FSIA that

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Naftali was also an Israeli citizen and may have been targeted

because of this.

Finally, the District Court’s reasoning does not comport

with its own interpretation of “solatium.” As the court properly

recognized, “solatium” damages are compensation for

“[m]ental anguish, bereavement and grief resulting from the

fact of decedent’s death.” Fraenkel I, 248 F. Supp. 3d at 41

(quoting Flatow, 999 F. Supp. at 30). The District Court found

that Naftali’s abduction and death caused his family severe

emotional anguish and “will . . . forever alter[]” their lives. Id.

There is certainly no basis in the record or in the District

Court’s reasoning to support a conclusion that the Fraenkels

suffered less from Naftali’s murder because they might have

thought that he was killed for being Israeli, and not for being a

U.S. citizen. Indeed, the District Court acknowledged that the

fact that Naftali was murdered for being a Jewish-Israeli

teenager “do[es] nothing to lessen the Plaintiffs’ grief or loss

or U.S. citizenship.” Fraenkel II, 258 F. Supp. 3d at 84. By the

District Court’s own definition of “solatium” and its own

factual findings, then, the terrorists’ motivation in targeting

Naftali was not a permissible basis for lowering the solatium

awards granted to his family.

On remand, the District Court should apply the

considerations outlined in Flatow, 999 F. Supp. at 30–32,

without regard to Naftali’s dual citizenship, to determine the

appropriate amounts of solatium damages to award to the

Fraenkels.

19

2. Assumption of Risk

The District Court also suggested that the Fraenkels should

receive solatium damages awards below the amounts awarded

to the plaintiffs in Gates because Naftali and his parents

assumed the risk that he might be kidnapped and killed by

terrorists. See Fraenkel II, 258 F. Supp. 3d at 83–84. On this

point, the District Court noted that “[the Fraenkels] accepted

the risks of living in a community built across the Green Line

in Israel and sending Naftali Fraenkel 40 miles further into the

West Bank for high school in Gush Etzion[, which] is about

six miles from Hebron, a predominately Palestinian city.” Id.

The District Court obviously took these facts into account in

assessing, and limiting, the solatium damages it awarded. We

agree with the Fraenkels that the court erred in doing this.

Under common law theory, the doctrine of assumption of

risk can be used to bar recovery for a negligent act when a

plaintiff has voluntarily incurred a known risk. See, e.g.,

Scoggins v. Jude, 419 A.2d 999, 1004 (D.C. 1980). It is

typically an affirmative defense and the burden of proof lies

with the defendant. Morrison v. MacNamara, 407 A.2d 555,

566 (D.C. 1979). “[T]he princip[al] elements of the defense are

an actual knowledge and comprehension of a danger caused by

the defendant’s negligence and the plaintiff’s voluntary

exposure to that known danger.” Id. at 567.

We can find no authority in which assumption of risk has

been held to be a defense against an otherwise viable claim

under the FSIA, or that has indicated it should result in a

reduced damages award. The reason is simple: assumption of

risk is not a defense when a plaintiff (or a victim under the

FSIA) “is compelled to accept the risk in order to exercise or

protect a right or privilege, of which the defendant has no

privilege to deprive him.” Kanelos v. Kettler, 406 F.2d 951,

20

955 (D.C. Cir. 1968). “[A]cceptance of the risk is not to be

regarded as voluntary where the defendant’s tortious [or

unlawful] conduct has forced upon [a party] a choice of two

courses of conduct, which leaves him no reasonable alternative

to taking his chances.” Id. (quoting Restatement (Second) of

Torts 469 E, comment c (1965)). Further, one does not assume

the risk that he will be the victim of an intentional tort. See

Janelsins v. Button, 648 A.2d 1039, 1045 (Md. 1994) (noting

that “jurisdictions that have considered the issue of assumption

of risk as a defense to an intentional tort have overwhelmingly

rejected its applicability” and citing cases).

Thus, the driver who voluntarily chooses to go out at night

does not assume the risk of being hit by an inebriated motorist.

See Knight v. Jewett, 834 P.2d 696, 704–05 (Cal. 1992). The

college student who consumes alcohol at a party does not

assume the risk of being sexually assaulted by another guest.

See Doe v. Roe, No. CV125034145S, 2013 WL 6912882

(Conn. Super. Ct. Nov. 27, 2013). The employee who enters a

hostile crowd of customers does not assume the risk that one of

them will physically batter him. See Blankinship v. Duarte, 669

P.2d 994, 999 (Ariz. 1983). And we add that the family of a

boy hailing a ride home from school on a public street and

engaging in no unlawful conduct does not assume the risk of

the boy being kidnapped and killed by terrorists. The District

Court’s suggestion to the contrary was error.

Furthermore, the District Court’s finding that, when they

were kidnapped, Naftali and his friends were “hitchhiking

home at 10:30 at night from Gush Etzion Junction,” Fraenkel

II, 258 F. Supp. 3d at 83 – an area it suggested had experienced

“many terror attacks,” id. – is not supported by the record. One

expert report in the record did indeed mistakenly identify the

site of the kidnapping as the Gush Etzion Junction. See

Declaration of Arieh Dan Spitzen at 6 ¶ 20 (June 23, 2016),

21

reprinted at App. 40, 45. But the expert later issued a

supplemental report and offered live testimony correcting that

earlier statement and clarifying that Naftali was kidnapped

from the Alon Shvut Junction, more than three kilometers from

the Gush Etzion Junction. Transcript of Evidentiary Hearing at

114, 123–24 (Dec. 6, 2016), Plaintiff Witness Arieh D. Spitzen,

App. 448, 457–58; Supplemental Declaration of Arieh Dan

Spitzen at 1–2 ¶¶ 3–4 (Nov. 4, 2016), App. 641–42. Indeed, the

District Court’s first opinion states that Naftali had been

kidnapped at “a junction in Alon Shvut,” not at the Gush Etzion

Junction. Fraenkel I, 248 F. Supp. 3d at 27.

Moreover, the District Court’s own findings indicate that

the Alon Shvut Junction was not unduly dangerous. See id. (“It

was common for students and other individuals to wait for rides

at that junction.”); Fraenkel II, 258 F. Supp. 3d at 84 (crediting

Rachelle Fraenkel’s testimony that “the boys thought they were

getting a ride home in a spot where hitchhiking is very normal

and usually safe”). Therefore, even if assumption of risk were

relevant, the District Court erred in concluding that Naftali

assumed a heightened risk of a terrorist attack based on the

history of the junction from which he was kidnapped. And,

importantly, the District Court failed to explain how the risks

associated with living in the Fraenkels’ community impacted

their “[m]ental anguish, bereavement, and grief.” Flatow, 999

F. Supp. at 30.

Finally, it should be noted that Congress clearly intended

the FSIA’s terrorism exception to deter states from supporting

terrorism in areas of the world like the area in which Naftali

lived and was killed. See Leibovitch, 697 F.3d at 565. Only five

months after the original terrorism exception was enacted,

Congress passed the Flatow Amendment in order to expand the

remedies available to victims of state-sponsored terrorism. See

28 U.S.C. § 1605 (note). “[O]ne of the prime movers behind”

22

the amendment was Stephen Flatow, whose daughter, Alisa

Flatow, was killed by a suicide bomber in Gaza – a territory

abutting Israel that, like the West Bank, is fraught with

longstanding political tension and a history of terrorism. In re

Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31,

43 (D.D.C. 2009); Flatow, 999 F. Supp. at 7. When families

like the Flatows were unable to recover punitive damages

under the FSIA against Iran, see Cicippio-Puleo v. Islamic

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

Congress replaced the prior terrorism exception with § 1605A

in order to expand the relief available, Leibovitch, 697 F.3d at

567.

Given Congress’s consistent expansion of remedies under

the FSIA for victims of state-sponsored terrorism overseas, in

areas of the world subject to high levels of terrorism, it is hard

to imagine that Congress meant for district courts to reduce

solatium awards under § 1605A(c) for families like the

Fraenkels who live in areas that may face an increased

incidence of terrorist attacks. We therefore reverse and remand

the District Court’s judgment on the solatium damages awards

so that the court may reassess these damages without any

suggestion that Naftali and his immediate family “accepted the

risk” that he might be kidnapped and killed by terrorists.

3. The Fraenkels’ Reliance on Heiser

The Fraenkels additionally argue that the District Court

“broke from precedent,” supported by “extensive case law on

damages in [FSIA] cases,” by awarding solatium damages in

amounts “dramatically lower than those received by thousands

of similarly-situated plaintiffs.” Appellants’ Br. 29. According

to the Fraenkels, this “case law” governing solatium awards is

authoritatively summarized in Estate of Heiser v. Islamic

Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006). In that

23

case, the District Court reviewed prior FSIA decisions and

concluded that “courts typically award between $8 million and

$12 million for pain and suffering resulting from the death of a

spouse[,] approximately $5 million to a parent whose child was

killed[,] and approximately $2.5 million to a plaintiff whose

sibling was killed.” Id. at 269. The Fraenkels maintain that

subsequent District Court decisions have invariably followed

the Heiser framework, and that as a result, the court below was

obligated to consider these amounts a “baseline” from which

they could vary only with reasoned justification. We disagree.

We recognize that many FSIA decisions issued by the

District Court follow Heiser’s solatium damages model. See,

e.g., Estate of Brown v. Islamic Republic of Iran, 872 F. Supp.

2d 37, 42–44 (D.D.C. 2012). However, the District Court in

this case was not required to follow Heiser for the simple

reason that Heiser is not controlling precedent. See Labow v.

U.S. Dep’t of Justice, 831 F.3d 523, 532 (D.C. Cir. 2016)

(“[D]istrict court opinions do not establish binding precedent

on other courts . . . .”).

We decline to impose Heiser’s framework as a mandatory

scheme under the FSIA. First, the FSIA, and the case law

applying the statute, make it clear that the trial judge has

discretion in determining solatium damages. The FSIA

requires only that a plaintiff “establish[] his claim or right to

relief by evidence satisfactory to the court.” 28 U.S.C.

§ 1608(e); see also Hill, 328 F.3d at 684 (requiring plaintiffs to

prove the amount of economic damages “by a reasonable

estimate”). Given this statutory scheme, District Court judges

invariably must exercise discretion in determining damages

awards under the FSIA. There is no statutory basis for

concluding that district courts must award solatium damages in

the amounts that Heiser found commonly granted.

24

Heiser reflects a reasonable effort to chart solatium award

baselines, but the figures merely reflect the summary of

judgments in prior cases – many of which, like this case, were

not the product of contested litigation. While past solatium

awards from comparable cases are appropriate sources of

guidance for district courts, “different plaintiffs (even under

FSIA) will prove different facts that may well (and should)

result in different damage awards.” Fraenkel II, 258 F. Supp.

3d at 82.

Indeed, not all District Court decisions awarding solatium

damages to family members of a decedent have applied the

Heiser framework. See Estate of Bayani v. Islamic Republic of

Iran, 530 F. Supp. 2d 40, 46 (D.D.C. 2007) (involving solatium

higher than Heiser amounts for victim tortured for two years

by Iranian government before being executed, causing his

family acute suffering); see also Kim v. Democratic People’s

Republic of Korea, 87 F. Supp. 3d 286, 290 (D.D.C. 2015);

Gates, 580 F. Supp. 2d at 71–72.

As explained above, we are obliged to leave it to the wise

discretion of our judicial colleagues on the District Court to

determine the damages that are due under the FSIA. And, as

we have explained, the District Court does not abuse its

discretion unless it issues a judgment based on an error of law,

“a clearly erroneous assessment of the evidence,” Cooter &

Gell, 496 U.S. at 405, or an improper weighing of the factors

limiting its discretion, see, e.g., Winter, 555 U.S. at 28.

C. Pain-and-Suffering and Punitive Damages

Finally, the Fraenkels have objected, albeit in a relatively

cursory fashion, to the pain-and-suffering and punitive

damages amounts awarded by the District Court. Appellants’

Br. 52–54. We have fully considered the Fraenkels’ objections

25

to these awards and we find no merit in them. The District

Court’s findings with respect to these awards were consistent

with the requirements of the law, reasonable, supported by

adequate explanation, and fully within the bounds of its

discretion.

III. CONCLUSION

For the foregoing reasons, we reverse the District Court’s

judgment on solatium damages awards and remand for further

consideration consistent with this opinion. We affirm the

District Court’s pain-and-suffering and punitive damages

awards.