Shlomo Leibovitch v. Islamic Republic of

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1564

S HLOMO L EIBOVITCH, et al.,

Plaintiffs-Appellants,

v.

ISLAMIC R EPUBLIC OF IRAN, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:08-cv-01939—William T. Hart, Judge.

S UBMITTED S EPTEMBER 12, 2011—D ECIDED S EPTEMBER 25, 2012

Before B AUER, R OVNER, and W ILLIAMS, Circuit Judges.

W ILLIAMS, Circuit Judge. The Leibovitch family was

attacked by terrorists while driving along a highway in

Israel. One child, an Israeli national, died in the attack

while a second child, a United States citizen, was seriously

injured. The family brought suit in federal district court

against the Islamic Republic of Iran and the Iranian

Ministry of Information and Security under the terrorism

exception of the Foreign Sovereign Immunities Act,

2 No. 11-1564

28 U.S.C. § 1605A, for providing material support and

resources to the organization that carried out the attacks.

The district court adjudicated the claim for injuries sus-

tained by the United States citizen child. But the trial

court found no jurisdiction over intentional infliction

of emotional distress claims brought by her other

family members on the grounds that they are not United

States citizens. Because we conclude that the Foreign

Sovereign Immunities Act confers subject-matter juris-

diction over the emotional distress claims brought by

the Leibovitchs under Israeli law, we reverse and remand.

I. BACKGROUND

On June 17, 2003, several members of the Leibovitch

family were traveling along the Trans-Israel highway

near the town of Kalkilya through an area bordering

the West Bank. Agents of the Palestine Islamic Jihad

(“PIJ”) crossed from the West Bank into Israel and fired

upon the Leibovitchs’ minivan using pistols and a

Kalishnikov rifle. The Leibovitchs’ seven-year-old child,

N.L., an Israeli national, was killed by the gunshots. Her

three-year-old sister, S.L., an American citizen, survived

but was severely injured by bullets that shattered bones

in her right wrist and pierced her torso. Two of the

girls’ grandparents and two siblings were also in the van

during the attack. They survived but witnessed N.L.’s

horrifying death as well as the grave injuries inflicted

upon S.L.

On April 3, 2008, the Leibovitchs brought suit against

the Islamic Republic of Iran and its Ministry of Informa-

No. 11-1564 3

tion and Security (collectively “Iran”). The complaint

sought damages on behalf of each family member in

the van as well as N.L. and S.L.’s parents, none of

whom were United States citizens.

The trial court entered a default order against Iran

after the defendants received service of process via dip-

lomatic channels but failed to respond or enter an ap-

pearance. After reviewing expert testimony and docu-

mentary evidence from the plaintiffs, the district court

determined that S.L. was injured in “an act of . . . extrajudi-

cial killing” under the FSIA exception for terrorism,

§1605A(a)(1). The district court further found that Iran

was vicariously liable for the PIJ’s terrorist attack because

Iran had openly provided material support and resources

for the PIJ’s campaign of extrajudicial killings. Finally, the

district court calculated $17.5 million in compensatory

damages for S.L.’s post-traumatic stress, loss of solatium

from her sister’s death, and permanent disability and

disfigurement resulting from the attack. An additional

$35 million was awarded to S.L. in punitive damages.

However, the district court dismissed all claims raised

by the other members of the Leibovitch family for lack

of subject-matter jurisdiction. After a motion for recon-

sideration, the trial court still concluded that it did

not have subject-matter jurisdiction and further sug-

gested that even if it did, the court was not persuaded

that Israeli law would permit the plaintiffs to recover

for intentional infliction of emotional distress. The

Leibovitchs appeal. Though they concede that the

district court was correct to find no jurisdiction over

4 No. 11-1564

certain counts in the complaint, the family contends that

there is subject-matter jurisdiction over claims brought

by family members under Israeli law for intentional

infliction of emotional distress arising from S.L.’s injury.

Iran has not made an appearance or filed any briefs

in this case.

II. ANALYSIS

This action is brought against Iran pursuant to the state-

sponsored terrorism exception to the Foreign Sovereign

Immunities Act (“FSIA”), 28 U.S.C. § 1605A (2008). The

FSIA provides the sole basis for asserting jurisdiction

over foreign nations in United States courts. Argentine

Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443

(1989). Foreign states enjoy immunity under the FSIA in

all cases that do not fall into one of the statute’s

specifically enumerated exceptions. Id. at 439; Enahoro v.

Abubakar, 408 F.3d 877, 881 (7th Cir. 2005).

A. Historical Background of FSIA State-Sponsored

Terrorism Exception

The exception to foreign sovereign immunity presented

in this case has a convoluted history. Congress and the

federal courts have engaged in an extended dialogue

over the scope and appropriate interpretation of this

statutory provision. Most relevant to our analysis of

subject-matter jurisdiction are: 1) the initial version of

the terrorism exception adopted in 1996, 2) the Flatow

Amendment passed later in 1996, 3) the D.C. Circuit’s

No. 11-1564 5

decision in Cicippio-Puleo v. Islamic Republic of Iran, 353

F.3d 1024 (2004), and 4) Congress’s 2008 abrogation of

Cicippio-Puleo and enactment of a revised, reconsolidated

terrorism exception codified in § 1605A.

1. Original Terrorism Exception

Congress amended the FSIA as part of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”) to

add a new exception for state sponsorship of certain acts

of terrorism. Pub. L. No. 104-132, § 221(a), 110 Stat. 1214

(formerly codified at 28 U.S.C. § 1605(a)(7) (repealed

2008)). This exception eliminated sovereign immunity

and permitted suit directly 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 . . . .” § 1605(a)(7). One of the explicit

purposes of AEDPA was to “deter terrorism” directed

at United States citizens and supported by foreign sover-

eigns as well as to “provide justice” for victims of terrorist

acts. 110 Stat. at 1214; see also Republic of Iraq v. Beaty,

556 U.S. 848, 859 (2009) (Section 1605(a)(7) “was intended

as a sanction, to punish and deter undesirable conduct.”)

For the terrorism exception to be invoked, a nexus to

the death or injury of a United States citizen was re-

quired. Sovereign immunity would still apply and bar suits

against a foreign state if “neither the claimant nor

the victim was a national of the United States.”

§ 1605(a)(7)(B)(ii).

6 No. 11-1564

The 1996 version of the terrorism exception codified

in § 1605(a)(7) has been understood as a jurisdiction-

conferring amendment, consistent with the overarching

framework of the FSIA. But the language of § 1605(a)(7)

left unresolved whether Congress intended to create a

federal private right of action under the newly enacted

exception. See Price v. Socialist People’s Libyan Arab

Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002) (“The FSIA is

undoubtedly a jurisdictional statute which, in specified

cases, eliminates foreign sovereign immunity . . . . There

is a question, however, whether the FSIA creates a

federal cause of action . . . against foreign states.” (cita-

tions omitted)).

An underlying presumption of the FSIA is that an

exception to sovereign immunity does not create a

private right of action against a defendant whose

conduct falls within a delineated exception. Section 1606

of the FSIA provides: “As to any claim for relief with

respect to which a foreign state is not entitled to

immunity . . ., the foreign state shall be liable in the

same manner and to the same extent as a private indi-

vidual under like circumstances.” The Supreme Court

has interpreted § 1606 to mean that the FSIA does not,

as a general matter, provide a substantive source of

liability against a foreign state. See First Nat. City Bank

v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611,

620 (1983) (“The language and history of the FSIA

clearly establish that the Act was not intended to affect

the substantive law determining the liability of a foreign

state or instrumentality, or the attribution of liability

among instrumentalities of a foreign state.”). In the

No. 11-1564 7

absence of a substantive source of law from the statute,

plaintiffs have typically been required to bring suit using

causes of action based on underlying state or foreign

law when an exception to sovereign immunity applies.

Id. at 621-23

An FSIA plaintiff’s reliance on a cause of action found

in state tort law has been referred to as the “pass-

through” approach. See Pescatore v. Pan Am. World

Airways, Inc., 97 F.3d 1, 12 (2d Cir. 1996) (“the FSIA . . .

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

(quoting Zicherman v. Korean Air Lines Co., 516 U.S. 217,

229 (1996))). Choice of law rules typically determine

the source of law for the appropriate action, often

based upon the plaintiff’s domicile or the location of the

injury. See id.

2. The Flatow Amendment Ensured Punitive

Damages Against Officials and Agents of

State-Sponsored Terrorism.

Though § 1605(a)(7) established a jurisdictional frame-

work for claims arising from terrorist acts, Congress

began to turn its attention to the practical needs of plain-

tiffs pursuing suits under this section. Five months after

AEDPA’s enactment, Congressman Jim Saxton sponsored

an amendment to § 1605(a)(7) creating a federal cause

of action for plaintiffs against agents and officers of

states that sponsor terrorism. The new provision was

enacted on September 30, 1996 as part of the 1997

Omnibus Consolidated Appropriations Act. Pub. L. No.

104-208, § 589, 110 Stat. 3009-172 (1996) (formerly codified

8 No. 11-1564

at 28 U.S.C. § 1605 note (repealed 2008)). The law became

known as the Flatow Amendment after Alisa Flatow,

a Brandeis University student mortally wounded in

a suicide bombing attack in the Gaza Strip.1

Congress’s principal goal in adopting the Flatow Amend-

ment appears to have been to ensure the availability of

punitive damages against agents of state sponsors

1

Alisa Flatow’s father, Stephen Flatow, successfully lobbied

Congress for an express, federal private right of action with the

option for punitive damages against agents and officers of

state sponsors of terrorism. See In re Islamic Republic of Iran

Terrorism Litig., 659 F. Supp. 2d 31, 43 (D.D.C. 2009) (discussing

legislative history and lobbying efforts of Flatow family); see also

Richard T. Micco, Putting the Terrorist-Sponsoring State in the

Dock: Recent Changes in the Foreign Sovereign Immunities Act and

the Individual’s Recourse Against Foreign Powers, 14 Temp. Int’l

& Comp. L.J. 109, 110 n.7 (2000). The Flatow Amendment

provided:

(a) An official, employee, or agent of a foreign state

designated as a state sponsor of terrorism . . . while

acting within the scope of his or her office, employ-

ment, or agency shall be liable to a United States

national or the national’s legal representative for

personal injury or death caused by acts of that official,

employee, or agent for which the courts of the United

States may maintain jurisdiction under section

1605(a)(7) . . . for money damages which may include

economic damages, solatium, pain, and suffering, and

punitive damages if the acts were among those de-

scribed in section 1605(a)(7).

28 U.S.C. § 1605 note.

No. 11-1564 9

of terrorism. Section 1606 of the FSIA prohibits punitive

damages from being awarded directly against a foreign

state. See id. (“a foreign state except for an agency or

instrumentality thereof shall not be liable for punitive

damages . . .”). Because the pass-through approach re-

quires plaintiffs to rely on a state cause of action, § 1606

cast doubt on whether plaintiffs could recover punitive

damages against defendants who intentionally engaged

in or supported acts of terrorism. The Flatow Amendment

was designed to eliminate any uncertainty and make

punitive damages definitively available, at least against

the “official, employee, or agent” acting on behalf of

the state sponsor of terrorism. § 1605 note. The very

brief legislative history accompanying the Flatow Amend-

ment supports this interpretation: “The conference agree-

ment inserts language expanding the scope of monetary

damage awards available to American victims of inter-

national terrorism.” H.R. Rep. No. 104-863, at 987

(1996) (Conf. Rep.).

By expressly providing for punitive damages, Congress

sought to advance the broader goal of the terrorism

exception: altering the conduct of foreign nations

engaged in terrorism. As detailed above, the FSIA is not

generally intended to affect the substantive law of

liability or to affect the primary conduct of foreign states.

But the terrorism exception plays a very different role

within the statutory scheme. In Flatow v. Islamic Republic

of Iran, the first case to apply the Flatow Amendment’s

federal cause of action, the D.C. District Court observed:

“The state sponsored terrorism provisions represent a

sea change in the United States’s approach to foreign

10 No. 11-1564

sovereign immunity. For the first time, Congress has

expressly created an exception to immunity designed to

influence the sovereign conduct of foreign states and

affect the substantive law of liability for non-immune

acts.” 999 F. Supp. 1, 14 (D.D.C. 1998). In examining the

legislative history of § 1605(a)(7) and § 1605 note,

the Flatow court concluded that “one of [Congress’s]

express purposes is to affect the conduct of terrorist

states outside the United States, in order to promote the

safety of United States citizens traveling overseas.” Id. at

15 (compiling legislators’ remarks).

Congressman Saxton, who served as Chairman of the

House Task Force on Counterterrorism and Unconven-

tional Warfare, believed a punitive damages regime

essential to adequately deter state sponsorship of terrorist

attacks that could injure or kill Americans. According to

statements made by Saxton, “compensatory damages

for wrongful death cannot approach a measure of

damages reasonably required for a foreign state to take

notice.” Id. at 25 (citing Congressman Jim Saxton, News

Release, Saxton to the Flatow Amendment Family: “Be

Strong, America is Behind You,” (Feb. 26, 1997)). In his

view, the only way to achieve the goal of altering state

conduct “was to impose massive civil liability on foreign

state sponsors of terrorism whose conduct results in

the death or personal injury of United States citizens.”

Id. The Flatow court ultimately awarded the plaintiffs

punitive damages ten times the amount of the $22.5 million

calculated in compensatory damages, for a total of

$247.5 million.

No. 11-1564 11

3. Cicippio-Puleo Rejected Implied Federal Action

Against Foreign State under FSIA.

The plain language of the Flatow Amendment permitted

a private right of action and accompanying punitive

damages only against the “official, employee, or agent of a

foreign state designated as a state sponsor of terrorism . . .

while acting within the scope of his or her office . . .”

§ 1605 note (emphasis added). The statutory provision

made no reference to direct suits against a foreign state.

Nevertheless, confusion persisted among district courts

for the District of Columbia regarding the intended

scope of the private right of action created by Congress.2

Some courts read the Flatow Amendment in conjunc-

tion with the legislative history of § 1605(a)(7) to infer

a federal private right of action directly against a

foreign state.3

2

The United States District Court for the District of Columbia

has adjudicated the vast majority of suits under the FSIA’s

terrorism exception, many of which are reviewed in detail in

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

43 (D.D.C. 2009). Because this District has substantial

experience interpreting these statutory provisions, we have

reviewed its cases for guidance here.

3

See Cronin v. Islamic Republic of Iran, 238 F. Supp. 2d 222, 231

(D.D.C. 2002) (holding that the Flatow Amendment provides a

cause of action against a foreign state); see also Regier v. Islamic

Republic of Iran, 281 F. Supp. 2d 87, 98-99 (D.D.C. 2003) (adopting

Cronin’s reasoning); Kilburn v. Republic of Iran, 277 F. Supp. 2d

24, 36-37 (D.D.C.2003) (same).

12 No. 11-1564

In Cicippio-Puleo v. Islamic Republic of Iran, the D.C.

Circuit rejected these interpretations, ruling that “neither

28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor

the two considered in tandem, creates a private right

of action against a foreign government.” 353 F.3d at

1033. Instead, “[s]ection 1605(a)(7) merely waives the

immunity of a foreign state without creating a cause of

action against it . . . .” Id. The D.C. Circuit reasoned that

there is a “settled distinction in federal law between

statutory provisions that waive sovereign immunity and

those that create a cause of action.” Id. (citing FDIC v.

Meyer, 510 U.S. 471, 483-84 (1994)). And without express

language providing for a private right, federal courts

should refrain from implying a cause of action into the

statutory framework. See id. (citing Correctional Servs.

Corp. v. Malesko, 534 U.S. 61, 67 n.3 (2001)).4

According to Cicippio-Puleo, by enacting the Flatow

Amendment, Congress effectively created a private

cause of action that was narrower than the grant of subject-

matter jurisdiction under the terrorism exception.

Though the federal cause of action extended only to

officials and agents of state sponsors of terrorism,

Congress had conferred broader jurisdiction on federal

courts to hear claims directly against a foreign state. But

if jurisdiction was established and no official or agent

had been identified, a plaintiff would still need to

4

The D.C. Circuit’s decision was supported by an amicus

brief from the United States which also took the position that

the § 1605(a)(7) and the Flatow Amendment did not create

a private right of action against foreign states.

No. 11-1564 13

identify a “viable cause of action” in order to recover.

Cicippio-Puleo, 353 F.3d at 1036. So, where a plaintiff

sought damages directly from a foreign state, he or she

would have to rely upon underlying substantive state

or foreign law using the pass-through approach

discussed above. Furthermore, no punitive damages

would be available for such claims due to § 1606.

4. Congress Establishes Private Right of Action

Against Foreign States under § 1605A.

The Cicippio-Puleo decision presented hurdles for some

FSIA plaintiffs seeking to hold state sponsors of terrorism

accountable. The pass-through approach created a patch-

work of inconsistent recovery for victims of terrorism

and their families because the availability of a cause

of action depended upon choice of law factors such as

the law of the plaintiff’s domicile. For example, family

members of Marines and servicemen killed in the 1983

terrorist bombing in Beirut brought suit against Iran

for intentional infliction of emotional distress. See

Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25, 43-

44 (D.D.C. 2007). While some family members were able

to bring successful claims, other claims were barred

effectively on the basis of the plaintiff’s domicile. Those

family members domiciled in Pennsylvania or Louisiana

had no standing to sue because the substantive law

of those states required plaintiffs to be physically

present at the time of the attack. See id.

In addition, the Cicippio-Puleo decision frustrated the

goal of deterring state sponsorship of terrorism

14 No. 11-1564

through massive damages awards in civil suits. Section

1606 of the FSIA barred punitive damages even if such

damages might be permitted under the pertinent sub-

stantive law. As a result, punitive damages were

generally unavailable unless plaintiffs could identify an

officer or agent responsible for coordinating or sup-

porting the terrorist act.

Congress responded by repealing and revisiting in

its entirety the terrorism exception. Section 1083 of the

2008 National Defense Appropriations Act (NDAA)

replaces § 1605(a)(7) and the Flatow Amendment with

a new statute, codified at § 1605A. Pub. L. No. 110-181,

§ 1083(2)-(3), 112 Stat. 3, 342-43. The new statute

imports the original grant of jurisdiction from § 1605(a)(7)

largely unchanged, while adding new categories of poten-

tial claimants. See § 1605A(a)(1)-(2). The 1996 exception

had preserved sovereign immunity if “neither the

claimant nor the victim was a national of the United

States.” § 1605(a)(7)(B)(ii). The new statute now provides:

“The court shall hear a claim under this section if . . . the

claimant or the victim was . . . a national of the United

States . . . [or a member of the military or a United

States employee]. § 1605A(a)(2).

In addition, Congress expressly created a private right

of action affording compensatory and punitive damages

against a “foreign state” and “any official, employee, or

agent of that foreign state while acting within the scope

of his or her office, employment, or agency.” § 1605A(c).

The new cause of action also provides a range of addi-

tional rights that were previously unavailable, including

No. 11-1564 15

expanded remedies for plaintiffs seeking to attach assets

of state sponsors of terrorism within the jurisdiction

of the United States. The statute only permits four catego-

ries of claimants to invoke the private right of action:

United States citizens, members of the military, and

United States employees. See § 1605A(c) (“a foreign

state . . . shall be liable to . . . (1) a national of the United

States, (2) a member of the armed forces, (3) an employee

of the Government of the United States . . . or (4) the legal

representative of a person described in paragraph (1), (2),

or (3)”).

When Senator Frank Lautenberg introduced the bill

in the Senate, he remarked:

Congress’s original intent behind the 1996 legisla-

tion has been muddied by numerous court deci-

sions. . . . Since [Cicippio-Puleo], judges have been

prevented from applying a uniform damages

standard to all victims in a single case because

a victim’s right to pursue an action against a

foreign government depends upon State law.

My provision in this bill fixes this problem by

reaffirming the private right of action under the

Flatow Amendment against the foreign state

sponsors of terrorism themselves.

154 Cong. Rec. S54 (daily ed. Jan. 22, 2008) (statement of

Sen. Lautenberg). However, sixteen years after the en-

actment of the original terrorism exception and Congress’s

revisions, some mud remains in the water. The resulting

statute codified in § 1605A “is anything but a model

of clarity” and gaps remain in interpreting Congress’s

16 No. 11-1564

intent. Roeder v. Islamic Republic of Iran, 742 F. Supp. 2d 1, 13

(D.D.C. 2010) (quoting government’s brief). Here, we

consider § 1605A’s application to foreign national

family members of an American victim of a terrorist act.

B. Subject-Matter Jurisdiction Exists over the

Leibovitchs’ Emotional Distress Claims.

The district court dismissed claims brought by S.L.’s

family members reasoning that without United States

citizenship they could not invoke the federal cause of

action, § 1605A(c). The court also declined to exercise

supplemental jurisdiction over the family’s claims

under Israeli law. The Leibovitchs appeal, contending

that the terrorism exception confers original jurisdic-

tion over pass-through claims brought by family

members under foreign sources of law for harm caused

by the injury or death of an American relative. We

review a district court’s dismissal for lack of subject-

matter jurisdiction de novo. Graczyk v. W. Pub. Co., 660

F.3d 275, 278 (7th Cir. 2011).

Though the district court declined to exercise supple-

mental jurisdiction, we note that original jurisdic-

tion, where it exists, is not so discretionary. Section

1605A(2) provides that a “court shall hear a claim under

this section” (emphasis added) if the other conditions of

the statute are met. We observe that “[f]ederal courts,

though courts of limited jurisdiction . . . have no more

right to decline the exercise of jurisdiction which is

given, than to usurp that which is not given.” Mims v.

Arrow Fin. Servs., LLC, ___ U.S. ___, 132 S. Ct. 740, 747

No. 11-1564 17

(2012) (internal quotation marks and citations omitted).

If original subject-matter jurisdiction has been estab-

lished, the district court must hear the Leibovitchs’ claims.

As a preliminary matter, the trial court was correct

that the foreign national family members cannot pursue

a claim for personal injuries under the new federal cause

of action created by Congress. Section 1605A(c) provides:

Private right of action.—a foreign state . . . shall be

liable to . . . (1) a national of the United States, (2) a

member of the armed forces, (3) an employee of the

Government of the United States, or of an individual

performing a contract awarded by the United States

Government, acting within the scope of the em-

ployee’s employment, or (4) the legal representative

of a person described in paragraph.

The Leibovitchs concede that the federal cause of action

is not available to them because only S.L. is a “national

of the United States.” S.L.’s family members do not

fall within any of the four categories of claimants out-

lined in this provision.

However, the plaintiffs contend that the subject-matter

jurisdiction conferred by Congress in § 1605A(a) is

broader than the types of claimants who may make use

of the private right of action in § 1605A(c). In pertinent

part, § 1605A(a) provides:

(1) No immunity.—A foreign state shall not be

immune from the jurisdiction of courts of the

United States . . . in which money damages are

sought against a foreign state for personal injury or

death that was caused by an act of torture, extraju-

18 No. 11-1564

dicial killing, aircraft sabotage, hostage taking, or

the provision of material support or resources

for such an act . . . .

(2) Claim heard.—The court shall hear a claim

under this section if . . .

(A)(ii) the claimant or the victim was, at the time

the act described in paragraph (1) occurred—

(I) a national of the United States;

(II) a member of the armed forces;

or

(III) otherwise an employee of the

Government of the United States,

or of an individual performing a

contract awarded by the United

States Government, acting within

the scope of the employee’s em-

ployment . . .

(emphasis added). Since § 1605A(a)(2)(A)(ii) grants juris-

diction over cases where either the claimant or the victim

was a United States citizen, the Leibovitchs argue that

original subject-matter jurisdiction exists over their

claims because S.L. was a victim in the terrorist attack

and is a United States national. Though the family mem-

bers cannot make use of the private right of action from

§ 1605A(c), they argue that the district court must ad-

judicate their claims under Israeli law using the pass-

through approach employed after Cicippio-Puleo.

We therefore consider whether § 1605A’s jurisdictional

scope precisely tracks the new private right of ac-

No. 11-1564 19

tion—which excludes most foreign nationals even if they

are family members—or whether the pass-through ap-

proach survives Congress’s substantial revision of the

FSIA’s terrorism provision. We are not aware of a court

of appeals that has squarely reached this issue and we

note at the outset that the answer is less than crystal-

clear, given the convoluted history of this statute. One

of the stated reasons given by Senator Lautenberg for

adopting the revised terrorism exception was that

“judges have been prevented from applying a uniform

damages standard to all victims in a single case because

a victim’s right to pursue an action against a foreign

government depends upon State law.” 154 Cong. Rec. S54.

Permitting pass-through suits using the substantive law

of the plaintiff’s domicile will lead to similar inconsis-

tencies to those that occurred before the enactment

of § 1605A, albeit only for foreign national family mem-

bers. Nevertheless, several factors suggest that Congress

intended to confer jurisdiction over the Leibovitchs’

emotional distress claims.

First, the plain text and plain meaning of

§ 1605A(a)(2)(A)(ii) extends jurisdiction to cases where

either “the claimant or the victim was, at the time of the

[terrorist] act” a United States citizen. The claimant and

victim need not both be American citizens. As a

general matter, “[w]e should prefer the plain meaning

since that approach respects the words of Congress.”

Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004). If Congress

intended a jurisdictional scope coterminous with that of

§ 1605A(c)’s private right of action for United States

nationals, there would have been no need to include

20 No. 11-1564

the word “victim.” We would show little deference to

Congress’s chosen language if we simply read the

word “victim” out of the statute entirely. Denying juris-

diction over family members’ claims for American

victims would require us to ignore the disjunctive

structure of § 1605A(a)(2)(A)(ii).5

Congress’s intention to cover claims by foreign

national family members also emerges from the legisla-

tive history accompanying the 1996 precursor to this

jurisdiction-conferring provision: § 1605(a)(7)(B)(ii).

Congress slightly amended language in this provision

to waive sovereign immunity if “neither the claimant nor

the victim was a national of the United States . . . when

the act upon which the claim is based occurred.” Id.

(emphasis added). The accompanying House Report

explained that the clarification was made to ensure re-

5

In La Reunion Aerienne v. Socialist People’s Libyan Arab

Jamahiriya, the D.C. Circuit interpreted the former version of the

terrorism exception, § 1605(a)(7), as permitting third-party

insurers to sue Libya for claims paid to families of American

victims killed in the bombing of a French airliner. 533 F.3d 837

(2008). The court found the statutory language of § 1605(a)(7)

“clear on its face . . . . [I]f either the claimant or the victim is

a national of the United States, then immunity is waived.” Id.

at 844. Since there was “no dispute that the victims were

United States nationals,” sovereign immunity was “not a bar” to

suits by the claimant insurers. Id. Though La Reunion Aerienne

dealt with the former iteration of the terrorism exception,

we find the statutory language of § 1605A(a)(2)(A)(ii)

similarly “clear on its face.”

No. 11-1564 21

covery for foreign national family members: “The intent

of the drafters was that a family should have the benefit

of these provisions if either the victim of the act or

the survivor who brings the claim is an American na-

tional. Due to a drafting error, the current law can be read

to require that both the victim and the claimant must

be American nationals before the claimant can use these

provisions. . . . The correction will benefit several of the

Pan Am 103 families who could potentially lose their

claims if this correction is not passed.” H.R. Rep. 105-48

at 2 (1996). Since S.L. was an American national and a

victim of the terrorist act, Congress appears to have

intended her immediate family members to “have the

benefit” of the FSIA’s jurisdictional provisions even

if they cannot make use of the federal cause of action.

Next, the overall jurisdiction-conferring structure of

the FSIA supports the interpretation that the pass-

through approach survives Congress’s creation of a

private right of action. The typical rule for suits under

the FSIA is that the statute “operates as a ‘pass-through’

to state law principles.” Pescatore, 97 F.3d at 12. So, by

bringing a claim against Iran under Israeli law, S.L.’s

family members would be making traditional use of the

FSIA.

Section 1605A is unique in that it not only confers

jurisdiction but also includes a private right of action,

a remedy not offered under any other exception to sover-

eign immunity. But the questions of whether a private

right of action exists and whether there has been a

waiver of sovereign immunity are “two analytically

22 No. 11-1564

distinct inquiries” that should not be “conflate[d]” Meyer,

510 U.S. at 484 (1994). As the D.C. Circuit recognized

in Cicippio-Puleo, Congress’s enactment of the Flatow

Amendment did not require that the private right of

action precisely match the jurisdictional scope of

§ 1605(a)(7). 359 F.3d at 1033. Congress was free to estab-

lish a narrower federal cause of action applying only to

an “official, employee, or agent of a foreign state . . . .”

§ 1605(a)(7) note. The same is true here; Congress has

established a private right of action principally for Ameri-

can claimants while waiving sovereign immunity in a

broader set of cases also involving American victims.

A principal objective seems to have motivated

Congress during its twelve-year dialogue with the

courts over the terrorism exception: permitting massive

judgments of civil liability against nations that sponsor

terrorism. Congress adopted the Flatow Amendment “to

make the availability of punitive damages undisputable.”

Flatow, 999 F. Supp. at 25 (citing Saxton News Release,

supra). After Cicippio-Puleo confined the Flatow Amend-

ment’s federal cause of action to agents and officers of

state sponsors of terrorism, Congress rebuffed the D.C.

Circuit by enacting § 1605A(c). But there is no indication

that it acted in order to narrow the original scope of

jurisdiction. Instead, the legislative history suggests that

§ 1605A(c) was intended to extend punitive damages

to foreign nations sponsoring terrorism and thereby

allow the massive liability judgments the original

drafters hoped would deter state support for terrorism.

Rejecting jurisdiction over claims brought by foreign

national family members would be at odds with

No. 11-1564 23

Congress’s goal of expanding the liability of state

sponsors of terrorism. See Ruthanne M. Deutsch, Suing

State-Sponsors of Terrorism Under the Foreign Sovereign

Immunities Act: Giving Life to the Jurisdictional Grant After

Cicippio-Puleo, 38 Int’l Law 891, 901-03, 916 (2004) (arguing

that Flatow Amendment’s private right of action did not

displace broader grant of jurisdiction and that federal

courts have a responsibility to give effect to Congress’s

full jurisdictional grant).

We pause to note that there are significant questions

regarding the wisdom of combating international ter-

rorism through private civil suits. Because terrorism

involves a broad range of foreign policy considerations,

many commentators have argued that the political

branches must address the matter as opposed to a broad

range of courts and judges adjudicating competing cases

and controversies. See Iran Terrorism Litig., 659 F. Supp. 2d

at 38 (D.D.C. 2009) (“If the decade-long history of these

FSIA terrorism actions has revealed anything, it is that

the Judiciary cannot resolve the intractable political

dilemmas that frustrate these lawsuits; only Congress

and the President can. Today, at the start of a new presi-

dential administration—one that has sought engagement

with Iran on a host of critical issues—it may be time for

our political leaders here in Washington to seek a fresh

approach.”); see also, e.g., Anne-Marie Slaughter & David

Bosco, Plaintiff’s Diplomacy, Foreign Aff. 102 (Sept/Oct

2000); Daveed Gartenstein-Ross, A Critique of the Terrorism

Exception to the Foreign Sovereign Immunities Act, 34 N.Y.U.

J. Int’l L. & Pol 887 (2002). Whatever the merits of this

debate, we are obliged to focus on statutory text and

24 No. 11-1564

congressional intent and we do not find evidence to

support the conclusion that Congress intended to

foreclose claims by noncitizen family members when

it enacted § 1605A(c).

In Estate of Doe v. Islamic Republic of Iran, a D.C. district

court considered claims brought by foreign national

family members who sought to make use of the new

federal cause of action in § 1605A(c). 808 F. Supp. 2d 1, 17-

19 (D.D.C. 2011). The court ruled that since they did

not fall within any of § 1605A(c)’s four permitted catego-

ries, “those plaintiffs who are foreign national family

members of victims of the terrorist attacks in Beirut lack

a federal cause of action. But they may continue to

pursue claims under applicable state and/or foreign

law. Although § 1605A created a new cause of action, it

did not displace a claimant’s ability to pursue claims

under applicable state or foreign law upon the waiver of

sovereign immunity.” Id. at 20. We agree and conclude

that the plaintiffs have established subject-matter juris-

diction over their claims for emotional distress arising

out of the injuries inflicted upon S.L., a U.S. citizen

victim of the terrorist attack.6

6

Since 2008, some district courts have concluded that

§ 1605A(c) provides the only cause of action for American

citizen plaintiffs who sought to bring simultaneous claims

under state law. In Gates v. Syrian Arab Republic, the court

considered common law tort claims brought alongside

§ 1605A(c) and found that “state law no longer controls the

nature of the liability and damages that may be sought when

(continued...)

No. 11-1564 25

A separate question not addressed by plaintiffs, is

whether S.L. herself constitutes a “victim” as the term is

used in § 1605A(a)(2)(A)(ii). Section 1605A does not

define “victim.” There can be no doubt that S.L. is a

victim in the sense that she received a severe and

traumatizing injury in the attack that killed her sister.

But we note that N.L., a foreign national, was the indi-

vidual murdered by the “act of . . . extrajudicial killing.”

§ 1605A(a)(1). The D.C. district courts that have con-

sidered the definition of “victim” have generally inter-

preted it broadly. See Valore v. Islamic Republic of Iran, 700

F. Supp. 2d 52, 68 (D.D.C. 2010) (“the Court identifies

victims as those who suffered injury or died as a result

of the attack and claimants as those whose claims arise

out of those injuries or deaths but who might not be

(...continued)

it is a foreign government that is sued: Congress has provided

the ‘specific source of law’ for recovery.” 580 F. Supp. 2d 53,

66 (D.D.C. 2008) (citing Acree v. Republic of Iraq, 370 F.3d 41, 59

(D.C.Cir. 2004)); see also Estate of Heiser v. Islamic Republic of

Iran, 659 F. Supp. 2d 20, 23 (D.D.C. 2009) (“[P]laintiffs pro-

ceeding under § 1605A can forgo the pass-through approach

that controlled in the wake of Cicippio-Puleo and may assert

claims on the basis of the new federal statute alone.”). We note

that these cases present a different scenario because American

citizen plaintiffs have the option of proceeding under the

statute’s private right of action. In contrast, Congress has not

provided a “specific source of law” for foreign national family

members who cannot bring suit under § 1605A(c). Therefore,

the pass-through approach continues to apply to this class

of plaintiffs.

26 No. 11-1564

victims themselves. In this case, victims include the

241 members of the U.S. armed forces who were killed,

the many more who were physically and emotionally

injured, and the family members alleging injury suffered

from intentional infliction of emotional distress.”). We

agree with this interpretation. Though she is not a victim

of extrajudicial killing, S.L. is a victim of the act that

killed her sister because she was severely injured in

the same assault. Therefore, jurisdiction exists for her

foreign national family members to bring claims derived

from S.L.’s injury. See also Estate of Doe, 808 F. Supp. 2d

at 13; Peterson, 515 F. Supp. 2d at 66 (calculating damages

for claims brought by family members of servicemen

who were injured but not killed in the 1983 attack on

the Marine Corps barracks in Beirut).

A final matter warrants discussion. In its response to

the plaintiffs’ motion for reconsideration, the district

court issued a very brief statement including a two-sen-

tence analysis hypothesizing that “[e]ven assuming that

there is jurisdiction over these plaintiffs’ solatium

claims [under Israeli law,] . . . [t]he declarations they

provide to support the provisions of Israeli law, however,

[do] not establish that Israeli law recognizes solatium

or grief claims based on injury to a relative.” Our

concern is that a court may not presume hypothetical

jurisdiction in order to decide a question on the merits.

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101

(1998) (“Hypothetical jurisdiction produces nothing

more than a hypothetical judgment—which comes to

the same thing as an advisory opinion, disapproved by

this Court from the beginning.”). Therefore, we vacate

No. 11-1564 27

the district court’s hypothetical determination and

remand for reconsideration of the emotional distress

claims. See In re LimitNone, LLC, 551 F.3d 572, 577 (7th

Cir. 2008).

III. CONCLUSION

We R EVERSE the judgment of the district court and

R EMAND for further proceedings consistent with this

opinion.

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