Eli Borochov v. Islamic Republic of Iran

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 3, 2023 Decided March 8, 2024

Reargued September 29, 2023

No. 22-7058

ELI M. BOROCHOV, ET AL.,

APPELLEES

SHARI MAYER BOROCHOV, ET AL.,

APPELLANTS

v.

ISLAMIC REPUBLIC OF IRAN AND SYRIAN ARAB REPUBLIC,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-02855)

Michael Radine argued the cause for appellants. On the

supplemental briefs was Robert J. Tolchin.

Steven R. Perles and Peter Raven-Hansen were on the

supplemental brief for amici curiae Robert Canine, et al. in

support of appellants.

2

Ben Buell, Student Counsel, argued the cause as amicus

curiae in support of the District Court’s judgment. With him

on the supplemental brief was Catherine E. Stetson, appointed

by the court.

Brad Hinshelwood, Attorney, U.S. Department of Justice,

argued the cause for amicus curiae United States. With him on

the briefs were Brian M. Boynton, Principal Deputy Assistant

Attorney General, and Sharon Swingle, Attorney.

Before: MILLETT, PILLARD, and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Rotem and Yoav Golan, a

married couple, were among fourteen people injured when a

member of the terrorist group Hamas rammed his car into a

crowd at a bus stop in Jerusalem. The attack failed to kill any

of its intended victims; only the perpetrator died. Rotem and

Yoav, along with their relatives, who suffered emotional

trauma in the wake of the incident, sued Iran and Syria for the

injuries resulting from the car attack. The district court denied

a default judgment and any relief to several of the plaintiffs,

who then filed this appeal.

We hold that the district court lacked subject-matter

jurisdiction over this case. Congress granted federal courts

jurisdiction to hear personal-injury claims arising from, as

relevant here, “extrajudicial killings” committed or materially

supported by state sponsors of terrorism. But because the

attacker in this case (fortunately) did not kill anyone, the attack

that caused Rotem and Yoav’s injuries was not an

“extrajudicial killing” over which Congress has provided

subject-matter jurisdiction. Nor have the plaintiffs identified

any other basis for our jurisdiction against the foreign-

3

government defendants. We therefore vacate the judgment of

the district court with respect to the plaintiffs before this court

and remand for dismissal of those plaintiffs’ claims.

I

A

The Foreign Sovereign Immunities Act of 1976 (“FSIA”)

codified a common-law rule that, for “more than a century and

a half,” had generally exempted foreign sovereigns from the

reach of American courts. Verlinden B.V. v. Central Bank of

Nigeria, 461 U.S. 480, 486 (1983); see Foreign Sovereign

Immunities Act of 1976, Pub. L. No. 94–583, 90 Stat. 2891

(codified as amended at 28 U.S.C. § 1602 et seq.).

This case concerns a statutory exception to that immunity.

In 1996, Congress withdrew foreign sovereign immunity for

lawsuits that seek money damages for personal injury or death

from a state sponsor of terrorism that has engaged in an “act of

torture, extrajudicial killing, aircraft sabotage, hostage taking,

or the provision of material support or resources * * * for such

an act[.]” Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104–132, § 221, 110 Stat. 1214, 1241. This

provision, which is commonly referred to as the “terrorism

exception,” is now codified at 28 U.S.C. § 1605A(a)(1).

Congress also created a cause of action for U.S. citizens,

members of the U.S. armed forces, and U.S. government

employees who have been injured by foreign states’ acts or

sponsorship of terrorism. 28 U.S.C. § 1605A(c). All others

suing under the terrorism exception must rely on state- or

foreign-law causes of action. Fraenkel v. Islamic Republic of

Iran, 892 F.3d 348, 353 (D.C. Cir. 2018); see Owens v.

Republic of Sudan, 864 F.3d 751, 809 (D.C. Cir. 2017), vacated

4

on other grounds, Opati v. Republic of Sudan, 590 U.S. 418

(2020).

Three additional preconditions generally must be met for

the terrorism exception to apply. First, the foreign state was

designated a “state sponsor of terrorism at the time [of] the act

* * * or was so designated as a result of such act[.]” 28 U.S.C.

§ 1605A(a)(2)(A)(i)(I). Second, “at the time [of] the act,”

either a victim of the act or the claimant in the suit was an

American national, a member of the U.S. armed forces, or an

employee or contractor for the U.S. government acting within

the scope of their employment. Id. § 1605A(a)(2)(A)(ii). And

third, if “the act occurred in the foreign state against which the

claim has been brought,” the claimant gave the foreign state a

“reasonable opportunity” to arbitrate prior to filing a lawsuit.

Id. § 1605A(a)(2)(A)(iii).

B

On December 14, 2015, Rotem Golan, an Israeli citizen,

and her husband Yoav Golan, an American citizen, were

waiting with others at a bus stop in Jerusalem when a terrorist

deliberately rammed his car into the crowd. Borochov v.

Islamic Republic of Iran, 589 F. Supp. 3d 15, 28–29 (D.D.C.

2022). The car’s impact “hurled” Rotem and Yoav into the bus

stop’s glass wall. Id. at 29. The attacker had an axe in his car

that he “likely intended to use” against those at the bus stop,

but an onlooker shot him before he could inflict any further

harm. Id. The attacker was the only person who died in the

terrorist incident. Id.1

1

For purposes of our jurisdictional analysis, we credit the district

court’s unchallenged factual findings. See Fraenkel, 892 F.3d at 351.

5

Rotem and Yoav were both badly injured. Borochov, 589

F. Supp. 3d at 29. Rotem’s legs were lacerated, requiring

stitches, and she suffered a sprained knee ligament. Id. The

injuries caused her to miss two months of her teaching

internship. Id. The car crushed Yoav’s leg and both dislocated

and fractured his shoulder. Id. Yoav and Rotem also “suffered

mental and emotional injuries” from the attack. Id. Several

family members who witnessed their relatives’ pain and

suffering in the aftermath of the attack themselves sustained

mental and emotional injuries.

The district court found that the attacker was acting on

behalf of the terrorist organization Hamas, which praised him

in the wake of the attack as a “son of the Hamas movement.”

Borochov, 589 F. Supp. 3d at 29. The court also found that Iran

supported Hamas “for the past 30 years” through the provision

of massive financial support, including weapons, training, and

“suitcases of money.” Id. at 27–28. The district court further

found that Syria gave Hamas “operational freedom, political

legitimacy, protection, and training[,]” without which “Hamas

could not have undertaken” the attack. Id. at 26–27.

C

On September 24, 2019, Rotem, Yoav, and their family

members sued Iran and Syria, alleging tort claims of, among

other things, battery, assault, intentional infliction of emotional

distress, and aiding and abetting the terrorist attack. See

Second Am. Compl. ¶¶ 89–135. Several of the plaintiffs are

American citizens, and they invoked 28 U.S.C. § 1605A(c).

Others are not. Those Israeli-citizen plaintiffs instead brought

6

common-law tort claims. Second Am. Compl. ¶¶ 102, 107,

112, 119, 129.

Neither Iran nor Syria appeared to defend against the

action, so the Clerk entered defaults against them. See Dockets

20–24; see also FED. R. CIV. P. 55(a).

After entry of the defaults, each plaintiff was required to

“establish[] his claim or right to relief by evidence satisfactory

to the court” before the court could enter a default judgment.

28 U.S.C. § 1608(e); see Maalouf v. Islamic Republic of Iran,

923 F.3d 1095, 1113 (D.C. Cir. 2019). Entry of default is

critical for FSIA plaintiffs because foreign state sponsors of

terrorism are typically “unlikely to pay,” Braun v. United

States, 31 F.4th 793, 795 (D.C. Cir. 2022), and a default

judgment qualifies for payment through the U.S. Victims of

State Sponsored Terrorism Fund, 34 U.S.C.

§§ 20144(b)(2)(B), 20144(j)(4).

For the Israeli members of the Golan family bringing tort

claims, District of Columbia choice-of-law rules required the

application of Israeli law as to both liability and damages. See

Borochov, 589 F. Supp. 3d at 37–38; see also Cassirer v.

Thyssen-Bornemisza Collection Found., 596 U.S. 107, 117

(2022) (“A foreign state or instrumentality in an FSIA suit is

liable just as a private party would be. That means the standard

choice-of-law rule must apply.”) (citation omitted).

After the plaintiffs submitted evidence and expert reports,

the district court denied damage awards to all of the Israeli-

citizen plaintiffs except Rotem.

The court began its decision by holding that it had subject-

matter jurisdiction under the FSIA’s terrorism exception for

extrajudicial killings. Borochov, 589 F. Supp. 3d at 34 (citing

7

28 U.S.C. § 1605A(a)(1)). The court found that two victims of

the attack were U.S. citizens and both Syria and Iran were

designated state sponsors of terrorism. Id. at 30. It then found

that Iran and Syria had provided material support for

extrajudicial killings by Hamas members. Id. at 32–33. The

court acknowledged that the terrorist attack against Rotem and

Yoav was not an “extrajudicial killing,” since nobody but the

perpetrator died. Id. at 31–32. Nonetheless, the district court

concluded that it had jurisdiction because Iran and Syria had

provided material support for the purpose of conducting

extrajudicial killing of Israelis. Id. at 32–33. Even though no

killing resulted, the court held that jurisdiction attached so long

as the material support was intended to cause an extrajudicial

killing. Id.

On the merits, the district court held that Iran and Syria

were liable for the plaintiffs’ injuries. Borochov, 589 F. Supp.

3d at 35–40. The court noted that the plaintiffs had filed

declarations from Israeli law professors that discussed some of

the relevant bases for liability under Israeli law. Id. at 38–40.

But as to damages, the district court found that the plaintiffs

“fail[ed] to detail how and in what amount Israeli law

compensates the injuries allegedly suffered” by the Israeli-

citizen plaintiffs. Order to Show Cause at 1; see Borochov, 589

F. Supp. 3d at 45–46. For that reason, the district court denied

all the Israeli-citizen plaintiffs but Rotem any recovery.

Borochov, 589 F. Supp. 3d at 47. The district court made an

exception for Rotem because the court viewed “[h]er physical

injuries and severe emotional trauma” as providing a sufficient

basis for awarding damages. Id. at 46–47. The district court

later denied the Israeli-citizen plaintiffs’ motion to amend the

judgment. Order Denying Mot. Amend at 3–4.

8

Rotem and Yoav’s Israeli-citizen relatives, to whom we

refer collectively as the Golans, timely appealed the district

court’s denial of a default judgment for damages.

II

We begin with our appellate jurisdiction. The Golans

appeal the district court’s denial of damages. Under 28 U.S.C.

§ 1291, we have jurisdiction to review “all final decisions” of

the district courts. Finality is “to be given a practical rather

than a technical construction.” Gillespie v. United States Steel

Corp., 379 U.S. 148, 152 (1964) (quotation marks omitted); see

Republic Nat. Gas Co. v. Oklahoma, 334 U.S. 62, 67 (1948)

(There is “[n]o self-enforcing formula defining when a

judgment is ‘final[.]’”).

The most important feature of final orders is that they

“end[] the litigation on the merits[.]” Catlin v. United States,

324 U.S. 229, 233 (1945); see Republic Nat. Gas Co., 334 U.S.

at 68 (An order is final when “nothing more than a ministerial

act remains to be done[.]”). The “district court’s intent is a

significant factor” in determining whether the litigation before

it is at an end. Attias v. Carefirst, Inc., 865 F.3d 620, 624 (D.C.

Cir. 2017). So when a district court’s “order states the order of

dismissal is final and appealable[,]” we take that as “[t]he

clearest signal of finality[.]” Wilcox v. Georgetown Univ., 987

F.3d 143, 147 (D.C. Cir. 2021).

Sometimes, the denial of default judgment “simply sets the

stage for continued trial court proceedings[,]” as when a

defendant is likely to appear for trial despite failing to respond

at an earlier stage of the proceedings. See 15A C. WRIGHT &

A. MILLER, FEDERAL PRACTICE & PROCEDURE § 3914.5 (3d

ed.) (April 2023 Update). In that situation, a denial of default

judgment is not an appealable final order under Section 1291.

9

See, e.g., Prince v. Ethiopian Airlines, 646 F. App’x 45, 47 (2d

Cir. 2016) (summary order) (denial of default judgment not

final where district court “did not adjudicate all remaining

claims”).

By contrast, in this case, there is every indication that the

denial of default judgment marked the end of the district court

litigation. To start, the district court called its order “final” and

“appealable,” and requested that the Clerk of the Court close

the case. Judgment at 3. The court also entered judgment

consistent with Federal Rule of Civil Procedure 58(a), which is

a clear signal to the plaintiffs that the court had “reached a

‘final decision’ within the meaning of § 1291[,]” such that it

was “time to notice an appeal[.]” Wilcox, 987 F.3d at 146; FED.

R. CIV. P. 58(a) (requiring that a “judgment * * * be set out in

a separate document”). Finally, the court entertained a post-

judgment motion, which would be out of place if the

proceeding were still ongoing. See generally Order Denying

Mot. Amend.

Because this denial of default judgment bore clear indicia

of finality, we have appellate jurisdiction under 28 U.S.C.

§ 1291 to review the district court’s order. See also Monk v.

Secretary of Navy, 793 F.2d 364, 370 (D.C. Cir. 1986) (“We

have jurisdiction to decide [our appellate] jurisdiction” even

when the district court lacked statutory jurisdiction.).

III

In addition to verifying our appellate jurisdiction, we have

an “independent obligation” to assure ourselves both that we

have, and the district court had, subject-matter jurisdiction.

National R.R. Passenger Corp. v. Southeastern Pa. Transp.

Auth., 56 F.4th 129, 134 (D.C. Cir. 2022). Here, subject-matter

jurisdiction exists only if the Golans’ claims fall within one of

10

the FSIA’s exceptions to foreign sovereign immunity. These

exceptions are the “sole bas[es] for obtaining jurisdiction over

a foreign state in federal court” in a civil case. Permanent

Mission of India to the United Nations v. City of New York, 551

U.S. 193, 197 (2007) (quoting Argentine Republic v. Amerada

Hess Shipping Corp., 488 U.S. 428, 439 (1989)).

The Golans rely exclusively on the exception codified at

28 U.S.C. § 1605A, which, as relevant here, confers

jurisdiction over a case

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[.]

28 U.S.C. § 1605A(a)(1).

The terrorist attack that caused the Golans’ injuries did not

involve torture, aircraft sabotage, or hostage taking. So to fall

within the Section 1605A exception, their injuries must have

been “caused by” either “an act of * * * extrajudicial killing”

or “the provision of material support or resources for such an

act[.]” Id. Because the perpetrator did not kill anyone in the

attack that injured the Golans, no extrajudicial killing occurred,

and neither could there have been material support for “such an

act.” As a result, Section 1605A does not provide jurisdiction

and the Golans’ claims must be dismissed.

A

The Golans’ injuries were not “caused by an act of * * *

extrajudicial killing” because the terrorist attack that injured

them did not kill anyone. 28 U.S.C. § 1605A(a)(1); see

11

Borochov, 589 F. Supp. 3d at 31. At most, the perpetrator

attempted, but failed, to commit an extrajudicial killing. That

is not enough to confer jurisdiction under Section 1605A.

Our analysis begins and ends with the plain meaning of the

statutory text. The word “killing” refers to an action resulting

in the death of another. See, e.g., Killing, 6 THE OXFORD

ENGLISH DICTIONARY 430 (2d ed. 1989) (“That kills or

deprives of life.”); Kill, BLACK’S LAW DICTIONARY 886 (8th

ed. 2004) (“To end life; to cause physical death.”); Killing, THE

AMERICAN HERITAGE DICTIONARY 701 (2d ed. 1982) (def. 1)

(“Murder; homicide.”); Kill, MERRIAM-WEBSTER’S

COLLEGIATE DICTIONARY 642 (10th ed. 1993) (def. 1a) (“to

deprive of life”). The Golans have offered no example in

which the word “killing” or the phrase “extrajudicial killing” is

used to refer to an act that did not result in a death. Nor can we

think of one.

Nothing else in the FSIA hints that Congress had

something other than a completed killing in mind. To the

contrary, Congress gave the phrase “extrajudicial killing” the

same meaning in Section 1605A as it bears in the Torture

Victim Protection Act of 1991. See 28 U.S.C. § 1605A(h)(7);

id. § 1350 note; Pub. L. No. 102–256, § 3(a), 106 Stat. 73, 73

(1992). The Torture Victim Protection Act defines an

extrajudicial killing as “a deliberated killing not authorized by

a previous judgment pronounced by a regularly constituted

court[.]” 28 U.S.C. § 1350 note. By requiring an actual

“killing,” Congress closed the door to attempted, but failed,

killings.

The rest of the Torture Victim Protection Act confirms that

“killing” carries its ordinary meaning. The only tort claim

available on behalf of victims of extrajudicial killings is “an

action for wrongful death.” See 28 U.S.C. § 1350 note. The

12

Act does not allow any tort claim for injuries arising from an

attempted killing. See Mamani v. Sánchez Bustamante, 968

F.3d 1216, 1233 (11th Cir. 2020) (The Torture Victim

Protection Act’s extrajudicial killing provision “requires, at a

minimum, that there be a considered, purposeful act that takes

another’s life.”). In this way, Congress specifically

incorporated into the FSIA a definition of “extrajudicial

killing” that requires a death.

Including the phrase “act of” before “extrajudicial killing”

changes nothing. Contra Roberts v. Islamic Republic of Iran,

581 F. Supp. 3d 152, 169–170 (D.D.C. 2022). The primary

meaning of an “act” is “something done voluntarily” or a

“deed.” Act, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY

11 (10th ed. 1993) (defs. 1a, b) (capitalization modified); Act,

1 THE OXFORD ENGLISH DICTIONARY 123 (2d ed. 1989) (def.

1a) (“A thing done; a deed[.]”). That too connotes completion.

True, the word “act” sometimes refers to the “process of

doing[.]” Act, WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 20 (2002) (def. 4). When used in that sense,

however, it typically appears as part of the phrase “the act,” as

in “in the act” or “the act of.” Id. (“process of doing: action —

now chiefly used in the phrase in the act <caught in the [act]>”)

(capitalization modified); see 1 THE OXFORD ENGLISH

DICTIONARY 123 (2d ed. 1989) (def. 4a) (listing as “arch[aic]”

the definition of act as “[t]he process of doing; acting; action,”

except as used in the phrase “Act of God”) (emphases omitted);

see also Mem. Op. & Order at 20, Burks v. Islamic Republic of

Iran, No. 16-cv-1102 (D.D.C. Sept. 30, 2022), ECF No. 65

(“The primary, and most intuitive, understanding of the word

‘act’ is ‘[s]omething done or performed’ or ‘a deed.’”)

(alteration in original; quoting Act, BLACK’S LAW DICTIONARY

(11th ed. 2019)); Cabrera v. Islamic Republic of Iran, Nos. 19-

cv-3835, 18-cv-2065, 2023 WL 1975091, at *10 (D.D.C. Jan.

13

27, 2023) (“[I]n common parlance, one uses the construction

‘in the act of’ to connote the process of doing something, while

‘an act of’ typically references an act or occurrence.”).

That the perpetrator died does not suffice. An onlooker

shot the perpetrator in self-defense, Borochov, 589 F. Supp. 3d

at 28–29, a killing that was not undertaken, much less

“deliberated,” by Syria, Iran, or their confederates. Nor did the

shooting cause Yoav and Rotem’s injuries. See id.; Kilburn v.

Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123,

1128 (D.C. Cir. 2004) (proximate causation required).

To be sure, in applying the FSIA’s terrorism exception,

this court gives significant weight to Congress’s purpose “to

bring state sponsors of terrorism * * * to account for their

repressive practices” by preventing them “from escaping

liability for their sins.” Han Kim v. Democratic People’s

Republic of Korea, 774 F.3d 1044, 1048 (D.C. Cir. 2014); id.

(Congress’s goal was “punish[ing] foreign states who have

committed or sponsored [terrorist] acts and deter[ring] them

from doing so in the future.”) (quoting Price v. Socialist

People’s Libyan Arab Jamahiriya, 294 F.3d 82, 88 (D.C. Cir.

2002)). Because of the terrorism exception’s broad purpose,

we have interpreted ambiguities in its statute of limitations

“flexibly and capaciously.” Van Beneden v. Al-Sanusi, 709

F.3d 1165, 1167 (D.C. Cir. 2013).

Here, though, there is no relevant ambiguity that would

allow us to hold that “killing” means “no killing.” While the

attack on Rotem and Yoav was indisputably heinous, it was not

an “extrajudicial killing” within the meaning of Section

1605A(a)(1).

Given that plain text, we must hew to the terrorism

exception’s ordinary meaning. “[E]xplicit waivers of

14

sovereign immunity are narrowly construed ‘in favor of the

sovereign’ and are not enlarged ‘beyond what the [statutory]

language requires.’” World Wide Minerals, Ltd. v. Republic of

Kazakhstan, 296 F.3d 1154, 1162 (D.C. Cir. 2002) (quoting

Library of Congress v. Shaw, 478 U.S. 310, 318 (1986)); see

McKesson Corp. v. Islamic Republic of Iran, 672 F.3d 1066,

1075 (D.C. Cir. 2012) (“The FSIA established a broad grant of

immunity for foreign sovereigns that can only be abrogated by

one of the statute’s narrowly drawn exceptions.”). Faithful

adherence to the text is critical because waivers of foreign

sovereign immunity involve complex and delicate foreign-

policy judgments—decisions that fall outside the judicial

wheelhouse. See Opati, 590 U.S. at 421 (citing Republic of

Austria v. Altmann, 541 U.S. 677, 689 (2004)). The courts, in

other words, should not open the door to litigation against

foreign governments that the Political Branches have not

clearly authorized. Cf. Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108, 115–116 (2013) (interpreting the Alien Tort

Statute to avoid “adopt[ing] an interpretation of U.S. law that

carries foreign policy consequences not clearly intended by the

political branches”).

B

In exercising jurisdiction, the district court relied on

Section 1605A’s waiver of sovereign immunity for designated

foreign governments that provide “material support or

resources for” an extrajudicial killing. 28 U.S.C.

§ 1605A(a)(1); see Borochov, 589 F. Supp. 3d 32–34. The

court reasoned that, even if no killing ultimately results, a

foreign state could still be held responsible if it provided

material resources intended for an attempted killing. That

15

reading is foreclosed by a full reading of the statutory text and

context.

1

Section 1605A’s text does not support expanding the

material-support provision to cover attempted but uncompleted

extrajudicial killings. Remember that Section 1605A(a)(1)

waives immunity from suit for injuries resulting from “the

provision of material support or resources for such an act[.]”

28 U.S.C. § 1605A(a)(1) (emphasis added). In that way, the

provision creates secondary liability for governments that aid

“such an act” listed earlier in the sentence—that is, a completed

act of torture, extrajudicial killing, aircraft sabotage, or hostage

taking.

After all, “support” just means “assist[ance]” or “help” in

an action; it does not change what the baseline action is.

Support, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY

1184 (def. 2b) (10th ed. 1997) (capitalization modified); see

Support, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

2297 (def. 2a) (2002) (“[t]o uphold by aid or countenance”); 17

THE OXFORD ENGLISH DICTIONARY 258 (def. 1a) (2d ed. 1989)

(“assistance, countenance, backing”).

The provision of “resources” means the same thing: A

resource is a “source of supply or support[.]” Resource,

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1934

(def. 1a) (2002) (emphasis added); see Resource, MERRIAM-

WEBSTER’S COLLEGIATE DICTIONARY 997 (def. 1a) (10th ed.

1997) (“a source of supply or support”); Resource, 13 THE

OXFORD ENGLISH DICTIONARY 731 (def. 2a) (2d ed. 1989)

(“Possibility of aid or assistance.”).

16

The law has long held persons liable for assisting or

supporting another’s unlawful act under the rubric of aiding-

and-abetting liability. And when, as here, Congress draws on

a common-law concept like aiding-and-abetting liability, we

presume that the statutory term “share[s] fundamental

attributes of common law torts” absent an indication to the

contrary. United States v. Honeywell Int’l, Inc., 47 F.4th 805,

814 (D.C. Cir. 2022).

“[A]iding and abetting is an ancient criminal law doctrine

that has substantially influenced its analog in tort.” Twitter,

Inc. v. Taamneh, 598 U.S. 471, 488 (2023) (quotation marks

omitted). “[T]he basic ‘view of culpability’ that animates the

doctrine is straightforward: ‘A person may be responsible for

a crime he has not personally carried out if he helps another to

complete its commission.’” Id. (quoting Rosemond v. United

States, 572 U.S. 65, 70 (2014)).

As Taamneh and Rosemond established, a completed

crime is necessary for aiding-and-abetting liability to attach.

Taamneh, 598 U.S. at 488; Rosemond, 572 U.S. at 70; accord

United States v. Hansen, 599 U.S. 762, 771 (2023) (“[L]iability

for aiding and abetting requires that a wrongful act be carried

out[.]”). That is, a defendant can be found guilty of aiding and

abetting a crime only if someone else actually committed the

underlying crime. See W. LAFAVE, SUBSTANTIVE CRIMINAL

LAW § 13.3(c) (Oct. 2023 Update) (“[T]he guilt of the principal

must be established at the trial of the accomplice as a part of

the proof on the charge against the accomplice. If the acts of

the principal of the first degree are found not to be criminal,

then the accomplice may not be convicted.”); Gray v. United

States, 260 F.2d 483, 484 (D.C. Cir. 1958) (holding that, in an

aiding-and-abetting trial, it must “be established that the act

constituting the offense was in fact committed by someone”).

17

The requirement of a completed crime dates back centuries

to the common law, which provided that “an accessory could

not be convicted without the prior conviction of the principal

offender.” Standefer v. United States, 447 U.S. 10, 15 (1980)

(citing 1 M. HALE, PLEAS OF THE CROWN *623–624); W.

LAFAVE, SUBSTANTIVE CRIMINAL LAW § 13.1(d)(3) (“[A]t

common law, * * * conviction of the principal was an absolute

prerequisite[.]”).

Civil aiding-and-abetting liability follows the same rule:

an accomplice is liable only if the principal actually completes

the tort. See Taamneh, 598 U.S. at 494 (“[T]ort law imposes

liability only when someone commits an actual tort; merely

agreeing to commit a tort or suggesting a tortious act is not,

without more, tortious.”); Halberstam v. Welch, 705 F.2d 472,

478 (D.C. Cir. 1983) (Liability arises only if the defendant

“knowingly gave substantial assistance to someone who

performed wrongful conduct[.]”) (quotation marks omitted);

id. at 487–488 (“[T]he party the defendant aids must perform a

wrongful act that causes an injury[.]”); see also Restatement

(Second) of Torts § 876 (AMERICAN LAW INST. 1976). For

instance, we have held that aiding-and-abetting liability for

civil violations of securities laws requires that “another party

has committed a securities law violation.” Investors Res. Corp.

v. Securities & Exchange Comm’n, 628 F.2d 168, 178 (D.C.

Cir. 1980). There is no established aiding-and-abetting

liability for uncompleted torts at common law. Nor is there

liability for attempted but failed torts. See DOBBS’ LAW OF

TORTS § 4 (May 2023 Update) (“Tort law * * * would impose

liability only if harm results.”); Cenco Inc. v. Seidman &

Seidman, 686 F.2d 449, 457 (7th Cir. 1982) (Posner, J.)

(“[T]here is no concept of an inchoate tort[.]”).

Throughout the history of this Nation, the common law has

been settled that liability attaches only if a defendant “aided

18

and abetted * * * another * * * in the commission of the

actionable wrong—here, an act of * * * terrorism.” Taamneh,

598 U.S. at 495. And Section 1605A is explicit that the only

actionable wrongs are completed instances of the four

enumerated terrorist acts. 28 U.S.C. § 1605A(a)(1).

So understood, the words “material support and resources

for such an act” predicate the sovereign immunity waiver on

one of the four principal acts having occurred. But none did in

this case. Therefore, Section 1605A(a)(1)’s material-support

provision does not apply.

2

To bolster their broader reading of Section 1605A(a)(1),

the Golans, like the district court below, rely entirely on the

word “for.” See Golan Supp. Br. 3–4; Borochov, 589 F. Supp.

3d at 32. They claim that providing “material support or

resources for such an act[,]” 28 U.S.C. § 1605A(a)(1)

(emphasis added), refers to the “intent” behind the provision of

resources, rather than the result, Golan Supp. Br. 4.

The word “for,” by itself, cannot bear the weight the

Golans place on it. That is because “for” does not necessarily

refer to intent; it can instead refer to the cause or instigation of

an act, or something contributing to the act’s occurrence. See

For, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 886

(2002) (def. 8a) (“because of” or “on account of”); For,

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 454 (10th ed.

1993) (second entry) (similar); For, 2 THE OXFORD ENGLISH

DICTIONARY 23–24 (2d ed. 1989) (def. 9a) (similar). That

causal understanding applies equally when speaking of

material support for an act of terrorism. Remember, an “act”

is “[a] thing done.” Act, 1 OXFORD ENGLISH DICTIONARY 123

(2d ed. 1989) (def. 1a). Because the word “act” commonly

19

indicates a deed that is complete, the word “for” naturally

refers to support that causes or facilitates that terrorist act,

rather than just the intent behind a monetary or resource

contribution.

To be sure, “for” can denote an “intended goal,” as in

saving for college. For, MERRIAM-WEBSTER’S COLLEGIATE

DICTIONARY 454 (10th ed. 1993) (defs. 1a, 1b); see For,

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 886

(2002) (defs. 2a, 2e) (“as a preparation toward” or “with the

purpose or object of”); For, 2 THE OXFORD ENGLISH

DICTIONARY 23–24 (2d ed. 1989) (def. 8a) (“With a view to;

with the object or purpose of; as preparatory to.”).

Some district courts, including the district court in this

case, have recognized this ambiguity and relied on Van

Beneden to construe it in favor of plaintiffs. See, e.g.,

Borochov, 589 F. Supp. 3d at 32; Cabrera v. Islamic Republic

of Iran, No. 18-cv-2065-JDB, 2023 WL 1975091, at *7

(D.D.C. Jan. 27, 2023).

But Van Beneden concerned Section 1605A(b), a non-

jurisdictional statute of limitations. See 709 F.3d at 1166–

1177; Owens, 864 F.3d at 804 (“We therefore hold that the

limitation period in § 1605A(b) is not jurisdictional.”);

Maalouf, 923 F.3d at 1108 (same). We have never interpreted

the FSIA’s jurisdictional requirements so flexibly. See World

Wide Minerals, 296 F.3d at 1162 (“In general, explicit waivers

of sovereign immunity are narrowly construed[.]”); see also

Federal Republic of Germany v. Philipp, 592 U.S. 169, 184

(2021) (“We interpret the FSIA as we do other statutes

affecting international relations: to avoid, where possible,

producing friction in our relations with [other] nations[.]”)

(quotation marks omitted).

20

In that regard, the district court’s reading would broadly

expand Congress’s waiver of sovereign immunity to include

not just attempted-but-failed killings, but also providing

advance funding for attacks that never occur at all. See Oral

Arg. Tr. 26:10–27:2 (the court noting that a state could give

money to a terrorist for a particular attack, yet the terrorist

could use it for something else). Whatever the ambiguities of

“for,” the tiebreaker for any ambiguity in an FSIA

jurisdictional requirement is “in favor of the sovereign[.]”

World Wide Minerals, 296 F.3d at 1162.

Statutory context also forecloses finding jurisdiction based

on material support provided for an attempted, but failed,

extrajudicial killing.

To start, the Golans’ reading would write an illogical

asymmetry into Section 1605A. A foreign sovereign could be

sued if it supported someone else’s attempted extrajudicial

killing. But it would be immune from suit if it directly

attempted the extrajudicial killing itself. The Golans offer no

reason why Congress would have wanted to encourage terrorist

states to keep their extrajudicial killings in-house. Neither have

they identified any other reason Congress would have desired

such a lopsided liability regime.

Furthermore, the Golans’ reading of Section 1605A would

place challenging factual inquiries at the threshold of every

material support case. For example, if “for” requires proof of

intent, then district courts would have to determine a foreign

government’s subjective intent in providing weapons or money

to terrorist groups. That is a step our cases have repeatedly

eschewed. See Owens, 864 F.3d at 799; Kilburn, 376 F.3d at

1130. Money is fungible, and “material support ‘is difficult to

trace.’” Owens, 864 F.3d at 799 (quoting Kilburn, 376 F.3d at

1128). Making our jurisdiction contingent on the intent behind

21

a particular payment, shipment, or transfer “would as a

practical matter eliminate * * * liability except in cases in

which the [defendant] was foolish enough to admit [its] true

intent” or specifically tie its support to a single pre-planned

terrorist act. Id. (quoting Boim v. Holy Land Found. for Relief

& Dev., 549 F.3d 685, 698–699 (7th Cir. 2008)).

By contrast, if “for” speaks to causation of the completed

act, district courts need only determine whether a foreign

government’s material support was a proximate cause of a

completed killing. See Owens, 864 F.3d at 799.

In addition, Section 1605A requires a district court to hear

a claim if it finds that:

• The foreign state was designated as a state sponsor of

terrorism “at the time the act described in paragraph

(1) occurred,” or that the government was so

designated “as a result of such act,” 28 U.S.C.

§ 1605A(a)(2)(A)(i);

• “[T]he claimant or the victim was, at the time the act

described in paragraph (1) occurred,” a U.S. national,

a member of the U.S. armed forces, or an employee of

the U.S. government, id. § 1605A(a)(2)(A)(ii); and

• If “the act occurred in the foreign state against which

the claim has been brought,” the claimant gave the

foreign government a chance to arbitrate before filing

suit, id. § 1605A(a)(2)(A)(iii).

Each of these findings requires a threshold factual

determination as of the time an “act described in paragraph (1)

occurred[.]” 28 U.S.C. § 1605A(a)(2)(A)(i)–(iii); see

22

Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 13–14

(D.C. Cir. 2015) (factual findings are jurisdictional).

But what counts as an “act described in paragraph (1)”? If

the immunity exception in paragraph (1) is triggered only by

completed “act[s] of torture, extrajudicial killing, aircraft

sabotage, [or] hostage-taking,” then even when a plaintiff’s

claim is based on a state’s “material support” for such a

completed act, the plaintiff will ordinarily have to identify only

the time and location of the completed terrorist activity. And

it will not be hard for the plaintiff to specify her own nationality

at that time, whether the defendant state was designated as a

state sponsor of terrorism, and so on.

But if Section 1605A(a)(1)’s immunity waiver can be

triggered not just by completed “acts” of killing, torture,

aircraft sabotage, or hostage taking, but also by a foreign state’s

material support for such acts even when those acts never

occur, then that “material support” would by itself have to

constitute the relevant “act” for purposes of Section

1605A(a)(2)(A). In that case, the district court would need to

focus at the outset of the case on the “material support” for

terrorist acts, rather than the acts themselves. Yet proving the

time and place at which money, weapons, or other forms of

support changed hands, perhaps over the course of years or

decades, would be an onerous and unwieldy task. The

plaintiffs’ proposed reading, in other words, would ensure that

“few suits like this could ever proceed[.]” Han Kim, 774 F.3d

at 1048.

Treating material support itself as the relevant “act” for

waiving sovereign immunity would be especially knotty when

it comes to the requirement that a plaintiff “afford[] the foreign

state a reasonable opportunity to arbitrate the claim” in “a case

in which the act occurred in the foreign state against which the

23

claim has been brought[.]” 28 U.S.C. § 1605A(a)(2)(A)(iii). If

“act” refers to a completed act of terrorism, then all this

requirement means is that a plaintiff must first seek to arbitrate

with a foreign state before suing based on terrorist acts

committed within its own territory. That is a plausible

accommodation by Congress of foreign states’ interests in

territorial integrity that are not implicated if the act of terrorism

occurs in another state (as in this case).

But if “act” includes that foreign state’s “material

support,” then plaintiffs suing under Section 1605A would

have to go to the foreign state they seek to sue and ask to

arbitrate. That is because some of that state’s material support

would almost inevitably occur within the state’s own territory.

For example, the district court found in this case that Syria

“host[ed]” Hamas in its capital of Damascus, giving it “an

operational base” from which Hamas “carried out its most

lethal suicide bombings through Syrian operatives[.]”

Borochov, 589 F. Supp. 2d at 26. The district court also found

that Hamas operatives “received training in Iran[,]” and that

Iran sent Hamas “arms and funding[,]” including some

weapons that were manufactured in Iran. Id. at 27–28. As a

result, under the Golans’ reading, the statute required them to

seek to arbitrate their claims with Syria and Iran. Yet we see

nothing in Section 1605A’s text, structure, or purpose that

remotely suggests that Congress intended to compel terrorism

victims like the Golans to seek arbitration with foreign states

that footed the bill for attacks outside those states’ borders.

IV

No one can deny the pain and suffering that the terrorist

attack visited on Rotem, Yoav, and their family members, or

the depravity of the terrorist act itself. But Congress and the

President—those whom the Constitution charges with the

24

conduct of foreign relations—chose to extend the power of the

federal courts to claims against the perpetrators of just four

terrorist acts, and to foreign governments that aided the

execution of those acts. None of those four acts occurred here.

As a matter of text and context, the Golans’ claims fall outside

of Section 1605A’s scope. When it comes to waivers of foreign

sovereign immunity, courts can go only where the Political

Branches have trod. If Congress wishes more expansive

coverage for acts of terrorism, it can amend the statute to permit

it. But we cannot make that call.

Because there has been no waiver of sovereign immunity

in this context, we lack jurisdiction. We therefore vacate the

judgment of the district court with respect to the Golans and

remand for dismissal of the Golans’ claims.2

So ordered.

2

This court appointed Catherine E. Stetson as amicus curiae to

defend the district court’s judgment. She was assisted by student

counsel Samuel Gerstemeier, Riley Segars, and Walker Fortenberry

in briefing the case, and by Andrew Nell and Ben Buell in briefing

and arguing it. Ms. Stetson has ably discharged her duty, and the

court greatly appreciates Ms. Stetson’s and the student counsel’s

service.