Petition for Writ of Certiorari — Shari Mayer Borochov, et al., Petitioners v. Islamic Republic of Iran, et al.

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A: Opinion of the U.S. Court of

Appeals for the District of Columbia

Circuit (Mar. 8, 2024) ...................................... 1a

APPENDIX B: Order of the U.S. District

Court for the District of Columbia

(Mar. 4, 2022)................................................. 27a

APPENDIX C: Order of the U.S. Court of

Appeals for the District of Columbia

Circuit Denying Rehearing

(Apr. 25, 2024) ............................................... 83a

APPENDIX D: Statutory Provision Involved..... 85a

28 U.S.C. § 1605A .......................................... 85a

1a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________

Argued May 3, 2023

Reargued September 29,

2023

Decided March 8, 2024

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.

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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:

Judges.

MILLETT, PILLARD, and WILKINS, Circuit

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

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identified any other basis for our jurisdiction against

the foreign-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 ex-

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ception 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 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

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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

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.

1 For purposes of our jurisdictional analysis, we credit the district court’s unchallenged factual findings. See Fraenkel, 892

F.3d at 351.

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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 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

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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 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

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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.

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

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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. 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.

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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, subjectmatter 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 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).

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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 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 ex-

12a

ample 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 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

13a

done voluntarily” or a “deed.” Act, MERRIAMWEBSTER’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. 16cv-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. 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

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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

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.

15a

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 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 Sec-

16a

tion 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.”).

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 aidingand-abetting liability, we presume that the statutory

term “share[s] fundamental attributes of common law

torts” absent an indication to the contrary. United

17a

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”).

The requirement of a completed crime dates back centuries to the common law, which provided that “an ac-

18a

cessory 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[.]”).

19a

Throughout the history of this Nation, the common

law has been settled that liability attaches only if a

defendant “aided 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.

20a

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 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 nonjurisdictional 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

21a

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).

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

22a

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 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

23a

•

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 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

24a

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

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 manufac-

25a

tured 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 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 there-

26a

fore 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.

27a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ELI M. BOROCHOV,

et al.,

Plaintiffs,

v.

ISLAMIC REPUBLIC

OF IRAN, et al.,

Case No.

1:19-cv-02855 (TNM)

Mar. 4, 2022

Defendants.

MEMORANDUM OPINION

This action for compensatory and punitive damages

arises under the terrorism exception to the Foreign

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

It concerns two 2015 terrorist attacks in Israel perpetrated by Hamas. Nineteen Plaintiffs—some U.S. citizens, some Israeli—sue the States of Iran and Syria

(together, the States) for injuries suffered by the victims of the attacks and the emotional injuries suffered

by the victims’ immediate families. Plaintiffs allege

that the States provided material support and resources to Hamas.

The States did not respond or appear, and Plaintiffs

now move for default judgment. The Court finds that

Plaintiffs successfully established personal and subject matter jurisdiction under 28 U.S.C. § 1605A.

They have also proved that the States are liable under

federal and Israeli law. The U.S. Plaintiffs have supported their request for compensatory and punitive

damages. The Israeli Plaintiffs have not. The Court

28a

thus will grant in part and deny in part the motion for

default judgment.

I. BACKGROUND

The terrorist attacks at issue occurred in Israel in

2015. See Amended Compl. (Compl.) ¶¶ 53, 67, ECF

No. 6. Plaintiffs allege that Hamas, an Islamic organization committed to the “destruction of the State of

Israel,” id. ¶ 30, perpetrated the attacks with “material support and resources” from the States, id. ¶ 2.

The Foreign Sovereign Immunities Act (FSIA) generally immunizes foreign sovereigns from suits in federal courts, but “that grant of immunity is subject to

a number of exceptions.” Mohammadi v. Islamic Repub. of Iran, 782 F.3d 9, 13–14 (D.C. Cir. 2015). Once

an exception applies, the foreign state loses its immunity. See Bell Helicopter Textron, Inc. v. Islamic

Repub. of Iran, 734 F.3d 1175, 1182–83 (D.C. Cir.

2013). One such exception, known as the “terrorism

exception,” waives sovereign immunity for countries

providing material support to terrorist organizations.

See 28 U.S.C. § 1605A. Plaintiffs bring their case under this exception. See Compl. ¶¶ 28–29.

Because Iran and Syria did not respond, Plaintiffs

move for default judgment. See Plaintiffs’ Mot. for Default J. (Pls.’ Mot.), ECF No. 55-1. Entry of default

judgment is “not automatic.” Mwani v. Bin Laden, 417

F.3d 1, 6 (D.C. Cir. 2005). Before the Court can enter

default judgment, Plaintiffs must establish subject

matter jurisdiction and personal jurisdiction. See Jerez v. Repub. of Cuba, 775 F.3d 419, 422 (D.C. Cir.

2014) (“A default judgment rendered in excess of a

court’s jurisdiction is void.”). Section 1605A provides

29a

a mechanism for Plaintiffs to show both types of jurisdiction over a non-responsive sovereign.

The Court’s analysis thus focuses on whether Plaintiffs have properly pled all elements of a claim under

§ 1605A. To do so, Plaintiffs must show that the

States supported the terrorist groups responsible for

the attacks at issue. Plaintiffs have submitted expert

declarations to make those showings. See Expert Reports of Rael Strous, ECF Nos. 50, 51; Expert Declaration of Dr. Alan Friedman (Friedman Decl.), ECF

No. 53; Expert Declaration of Arieh Spitzen (Spitzen

Decl.), ECF No. 54. Plaintiffs also rely on expert declarations from an earlier case in this district. See Declaration of Benedetta Berti (Berti Decl.), ECF No. 29,

Force v. Islamic Repub. of Iran, No. 16-cv-1468

(D.D.C.); Declaration of Dr. Marius Deeb (Deeb Decl.),

ECF No. 30, Force v. Islamic Repub. of Iran, No. 16cv-1468 (D.D.C.); Declaration of Patrick Clawson

(Clawson Decl.), ECF No. 32, Force v. Islamic Repub.

of Iran, No. 16-cv-1468 (D.D.C.). 1

The Court assesses this evidence and makes findings

of fact before proceeding to findings of law. See Selig

v. Islamic Repub. of Iran, — F. Supp. 3d —, No. 19-cv2889 (TNM), 2021 WL 5446870, at *1 (D.D.C. Nov. 22,

1 The Court can review evidence considered in a previous decision with no re-presentment of that evidence. See Lee v. Islamic

Repub. of Iran, 518 F. Supp. 3d 475, 480 (D.D.C. 2021). The

Court still must reach its “own[ ] independent findings of fact.”

Id. The Court here has independently reviewed these Force declarations. The Court has also reviewed the qualifications of

Plaintiffs’ experts and is satisfied that each is qualified to offer

the opinions discussed below.

30a

2021) (accepting expert declarations as sufficient to

meet plaintiffs’ evidentiary burden).

II. FINDINGS OF FACT

A. Hamas

Members of the Muslim Brotherhood founded Hamas

in 1987–88. See Berti Decl. ¶ 11. Hamas intends to

liberate Palestine through jihad and to “create an Islamic state” in Israel. Deeb Decl. ¶ 11. Hamas advocates “direct and indirect attacks” on Israeli civilians

and military personnel to advance these goals. Berti

Decl. ¶ 11. In the years since Hamas’s founding, those

attacks have come as kidnappings, rocket attacks, and

other bombings. See generally id. ¶¶ 15–16.

Hamas combines its military and terror activities

with political and social efforts. See Spietzen Decl.

¶ 25. Hamas has even achieved political success, winning in 2006 a plurality of seats in the Palestinian

parliament. See id. ¶ 28. One year later, Hamas

seized power in the Gaza Strip, a Palestinian-majority

area in the southwest of Israel. See id. Beyond that

political influence, Hamas seeks to dominate Palestinian society through several social institutions and ostensibly charitable bodies. See id. ¶ 29. Dr. Spietzen

testifies that these efforts allow Hamas to appear reliable to Palestinians, thereby encouraging more of

them to support Hamas’s activities, including ones focused on terrorism. See id. ¶ 29–30.

B. Syrian Support for Hamas

Hamas’s leadership resided in Syria from about 2000–

2012. See Deeb Decl. ¶ 22. Although that residency

predates the attacks here, Plaintiffs’ experts assert

31a

that Hamas would not have the capacity for such attacks without Syria’s support. See Berti Decl. ¶ 50

(“[W]ithout the support of a prominent Arab state like

Syria to lend it legitimacy, [Hamas] would be more

isolated and unable to grow, develop, expand, and solidify itself as a major player on the Palestinian political and military scene, as Hamas has done.”). The

experts identify four ways in which Syria supported

Hamas.

First, safe haven. The organization moved its political

headquarters to Damascus in 2000, see id. ¶ 25, and

Syria’s support gave Hamas a “public platform,” id.

¶ 26. Hamas’s leaders, all designated as terrorists by

the United States, could freely meet in Damascus. See

id. ¶ 34. By hosting Hamas, Syria gave it “symbolic

validation, political support, [and] legitimacy”

through which Hamas could boost its credibility and

stature. Id. ¶ 37.

Second, an operational base. Hamas used the friendly

confines of Damascus to orchestrate military efforts

on the ground in Israel. Hamas carried out its most

lethal suicide bombings through Syrian operatives,

see id. ¶ 41, and Hamas’s top military commander

even moved to Damascus, see id. ¶ 42. Dr. Berti confirms that Hamas’s political leaders in Gaza needed

approval from Damascus before they could ratify an

Israeli offer for a prisoner exchange. See id. ¶ 43. Instructions for various attacks in Israel also came directly from Damascus. See Deeb Decl. ¶ 15. The Syrian government did nothing to “forcefully or systematically” crack down on Hamas’s military planning.

Berti Decl. ¶ 44. Indeed, Syria once offered aid “as an

incentive” for more suicide attacks in Israel. Id. ¶ 45.

32a

Third, a political hub. Through Syria’s generosity,

Damascus became Hamas’s “diplomatic and public relations base.” Id. ¶ 47. Hamas used that base to organize political events and to influence Palestinian

politics. See id. In Damascus, Hamas hosted strategic

discussions with other Palestinian factions, and those

discussions often allowed greater coordination between the groups’ activities in Israel. See id. ¶ 48.

This political visibility made Hamas more popular

and influential. See id. ¶ 50.

Fourth, equipment, funding, and logistical support.

Plaintiffs’ experts provide less detail on this point but

assert that Iran routed weapons shipments to Hamas

through Syria. See id. ¶ 53. And the Jordanian government claimed that some Hamas weapons originated in Syria. See id. ¶ 54. Syria also provided training grounds where Hamas fighters learned “essential

tactical skills” for future attacks. Id. ¶ 55; see Deeb

Decl. ¶ 19. Plaintiffs’ experts conclude that the “tactical know-how” learned during Syria’s protection allowed Hamas to “transform itself into a leading terrorist group with solid infrastructure and the power”

to disrupt the Israeli-Palestinian peace process. Deeb

Decl. ¶ 23.

Based on the above unrebutted expert testimony, the

Court finds that Syria provided material support in

the form of operational freedom, political legitimacy,

protection, and training to Hamas. Although that

support apparently ended before the attacks at issue,

the expert testimony confirms that without it, Hamas

could not have undertaken these attacks. On identical evidence, Judge Moss reached the same conclusion. See Force v. Islamic Repub. of Iran, 464 F. Supp.

3d 323, 367–68 (D.D.C. 2020).

33a

C. Iranian Support for Hamas

Plaintiffs rely on Dr. Patrick Clawson to make their

case against Iran. As he explains, the U.S. State Department has long known that Iran uses its intelligence services “to facilitate and conduct terrorist attacks.” Clawson Decl. ¶ 25. Supporting terrorist

groups “is an official policy of the Iranian government.” Id. ¶ 26. Those groups include “anti-Israel terrorism of all sorts,” and Iran has supported Hamas for

the past 30 years. Id. ¶¶ 28, 30.

Dr. Clawson discusses three specific ways Iran supports Hamas. First, financially. Starting in the

1990s, Iran paid Hamas “millions of dollars,” allowing

Hamas to establish front businesses. Id. ¶ 38. After

Hamas won a plurality in the Palestinian parliament,

Iran pledged $250 million to the group. See id. ¶ 42.

Hamas publicly acknowledged this financial support

when its political chairman in 2012 thanked Iran for

“arms and funding.” Id. ¶ 56. And even during low

periods in the Iran-Hamas relationship, Iran gave

suitcases of money directly to Hamas operatives in

Gaza. See id. ¶ 60.

Second, through weapons. In 2008, Secretary of State

Condoleeza Rice said that “Hamas is being armed and

it’s very clear that they are being armed, in part, by

the Iranians.” Id. ¶ 45. Earlier that year, Israeli investigators learned that a mortar shell fired by Hamas had been manufactured in Iran and that Iran had

provided input into the design of other Hamas rockets.

See id. ¶ 47. And according to Dr. Clawson, Iran

smuggles weapons to Hamas through tunnels on the

Egypt-Gaza border and sometimes via the Mediterranean Sea. See id. ¶¶ 50–52. Israel has intercepted

34a

some of those shipments. See id. ¶ 53. As with Iran’s

financial donations, Hamas has publicly acknowledged Iran’s weapons support. A representative for

Hamas’s military thanked Iran in 2014 for “providing

it with rockets and anti-tank missiles.” Id. ¶ 59.

Third, by training Hamas soldiers over many years.

As early as 1996, Hamas operatives received training

in Iran before they bombed a bus in Jerusalem. See

id. ¶ 35. And since 2003, the State Department has

annually reported to Congress that Hamas receives

training from Iran. See id. ¶ 27. Dr. Clawson excerpts

a British article claiming 150 members of Hamas’s

military wing had “passed through training in Tehran, where they stud[ied] for between 45 days and six

months at a closed military base[ ]” under Iranian supervision. Id. ¶ 46.

Based on this information, Dr. Clawson concludes

that Iran provided material support to Hamas during

the 2008–2017 timeframe. After assessing his testimony, the Court agrees. Iran provided money, weapons, and training to Hamas for decades. And Iran

gave support during the period when the attacks at

issue took place.

D. The Attacks

On a November afternoon in 2015, Akram and Nasr

Badawi nested a rifle in a window overlooking the

courtyard of the Cave of the Patriarchs 2 in Hebron, Israel. See Spietzen Decl. ¶ 71. The brothers had been

members of a four-man Hamas cell since 2015 and had

2 Tradition says the Cave holds the graves of many Old Testament figures, and thus many Jews and Muslims pray there. Id.

n.25.

35a

specifically obtained a rifle for the ensuing attack. See

id. ¶ 94. They admitted later that they intended to

kill Jews. See id. ¶ 73. Nasr was the lookout, Akram

was the sniper. 3 See id. ¶ 71. At around 4 p.m.,

Akram fired multiple shots. See id. ¶ 71.

He hit two people. See Friedman Decl., Ex. B at 1,

ECF No. 53-2. 4 One bullet struck Plaintiff Eli

Borochov in the groin as he walked to the Cave. See

id.; Declaration of Eli Borochov ¶ 2 (Eli Decl.), ECF

No. 32. Eli had traveled to Israel from his home in

New York. See Eli Decl. ¶ 2. His father and brother

accompanied him that day to the Cave. See id. Emergency personnel evacuated Eli to a nearby hospital,

where he underwent immediate surgery. See Friedman Decl., Ex. B at 1. Surgery went well, and the hospital discharged him two days later. Id. But as a result of his injuries, Eli could not walk for two months.

See id. According to the Complaint, nobody died in

the attack. 5

Law enforcement arrested Akram and Nasr at the

scene. Once Israeli authorities publicized the arrest—

something they did not do until almost a year later—

3 Because this case involves multiple persons with shared family names, the Court will introduce individuals by first and last

name and afterward refer to them by first name only.

4 All page citations refer to the pagination generated by the

Court’s CM/ECF system and all exhibit numbers refer to the

numbered attachments to the CM/ECF filings.

5 Israeli media reports of the attack similarly do not discuss

any deaths. See Judah Ari Gross, Hebron brothers get life in

prison for sniper spree, The Times of Israel (Nov. 12, 2017, 7:18

PM), https://www.timesofisrael.com/hebron-brothers-get-life-inprison-for-sniper-spree.

36a

an official Hamas website identified the brothers as

members of Hamas’s terrorist wing. See Spietzen

Decl. ¶ 113. The Court thus agrees with Dr. Spietzen

that Hamas conducted the attack.

One month after the attack in Hebron, on the anniversary of Hamas’s founding, see id. ¶ 119, Abd alMushin Shaher Hasouna drove from Hebron to Jerusalem, see id. ¶ 121. The night before, he told his

mother that he would “intercede for her in[ ] Paradise.” Id. ¶ 124. Hasouna raced his car into a bus stop

in central Jerusalem, ramming 14 people. See id.

¶ 119, 122. An onlooker saw the attack, drew his own

firearm, and shot Hasouna before he could do more

damage. See id. ¶ 119. That action probably saved

lives; Hasouna had an axe in his car and likely intended to use it against the crowd. See id. ¶ 126.

Among the injured were Yoav Golan, a U.S. citizen living in Israel, and his wife, Rotem. See Compl. ¶ 9–10.

The car’s impact hurled them into the bus stop’s glass

wall. See Declaration of Yoav Golan ¶ 6 (Yoav Decl.),

ECF No. 38. Yoav felt sharp pain in his shoulder and

in his leg. See id. ¶¶ 12, 14. The fall had dislocated

and fractured his shoulder, and he had a crush injury

on his leg from where the car had struck him. See id.

¶¶ 16, 19. Although released from the hospital the

next day, Yoav could not walk for a month and was

confined to a wheelchair. See id. ¶ 24. Rotem suffered

cuts on her legs, requiring stitches, and sprained a ligament in her knee. See Declaration of Rotem Golan

¶ 20 (Rotem Decl.), ECF No. 46. Because of her injuries, Rotem could neither drive for a month nor attend

school for two months. See id. ¶ 28. Both Yoav and

Rotem also suffered mental and emotional injuries

from the attack. See id. ¶¶ 29–64; Yoav Decl. ¶¶ 24,

37a

42–54, 58, 60–63.

Plaintiffs suggest that only

Hasouna died in the incident. 6

The next day, Hamas websites praised Hasouna. See

Spietzen Decl. ¶ 128. Online forums and radio stations connected to Hamas called him a “son of the Hamas movement.” Id. Hamas’s radio station published

a poster calling Hasouna “one of the sons of the Islamic resistance movement Hamas, whose heroic operation, carried out on the 28th anniversary of the

founding of the resistance movement, has ensured the

continuation of resistance.” Id. ¶ 130. Given these actions, the Court finds that Yoav and Rotem suffered

their injuries at Hamas’s hands.

Eli and his family sue for physical and emotional injuries from the attack. Ditto for Yoav, Rotem, and

their immediate families. 7 The latter group contains

both U.S. and Israeli nationals.

6 Israeli news sources likewise mention no other deaths. See

Fourteen injured in Jerusalem car-ramming attack, i24 News

(Dec.

14,

2015,

3:52

PM),

https://www.i24news.tv/en/news/israel/diplomacydefense/95622-151214-at-least-9-people-injured-in-car-ramming-attack-in-jerusalem.

7 The Complaint lists as Plaintiffs Yoav’s and Rotem’s grand-

parents, see Compl. ¶¶ 20–27, but Plaintiffs’ Proposed Order disclaims any pursuit of those claims, see Proposed Findings of Fact

and Conclusion of Law (Proposed Order) at 1, ECF No. 55-4. The

identity of Plaintiffs matters not to the Court’s analysis, but the

Court assumes based on that proposed language that the grandparents have abandoned their claims.

38a

III. LEGAL STANDARDS

Under Federal Rule of Civil Procedure 55(b)(2), a

court may enter default judgment when a party applies for it. But entry of a default judgment “is not

automatic.” Mwani, 417 F.3d at 6. A court must assure itself of its subject matter jurisdiction, see Hecht

v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996), and of

its personal jurisdiction over an absent defendant, see

Mwani, 417 F.3d at 6–7.

Extra procedures govern entry of default when the defendant is a sovereign state. The FSIA “affords the

sole basis for obtaining jurisdiction over a foreign

state in United States courts.” Mohammadi, 782 F.3d

at 13. The FSIA generally immunizes foreign states,

but that grant of immunity “is subject to a number of

exceptions.” Id. at 14. Relevant here is the so-called

terrorism exception found in 28 U.S.C. § 1605A. Section 1605A confers subject matter jurisdiction, recognizes a federal cause of action against foreign states

subject to the exception, and addresses personal jurisdiction by specifying procedures that a plaintiff must

follow to effect service on a foreign state. See

Schwartz v. Islamic Repub. of Iran, No. 18-cv-1349

(RDM), 2020 WL 7042842 at *9 (D.D.C. Nov. 30,

2020).

Different standards of proof govern federal courts’

personal jurisdiction and subject matter jurisdiction

inquiries. Plaintiffs need only make a “prima facie

showing” of personal jurisdiction. Mwani, 417 F.3d at

6–7. But for a court to exercise subject matter jurisdiction, plaintiffs must “establish[ ] [their] claim or

right to relief by evidence satisfactory to the court.” 28

U.S.C. § 1608(e). The statute does not specify what

39a

constitutes “evidence satisfactory to the court,” so

courts determine “how much and what kinds of evidence the plaintiff must provide.” Han Kim v. Dem.

People’s Repub. of Korea, 774 F.3d 1044, 1046–51

(D.C. Cir. 2014). The evidence must consist of “admissible testimony in accordance with the Federal Rules

of Evidence,” id. at 1049 (cleaned up), and it must be

sufficient for a court to come to the “logical conclusion”

that the defendant is responsible for the plaintiffs’ injuries, id. at 1051.

IV.ANALYSIS

The Court’s analysis proceeds as follows: First, the

Court will determine whether it has subject matter jurisdiction. Then the Court considers whether it has

personal jurisdiction over the States. Next, the Court

evaluates whether Plaintiffs have pled a federal cause

of action and whether they have proven a theory or

theories of liability. Finally, the Court assesses Plaintiffs’ claims for monetary damages.

A. Subject Matter Jurisdiction

To invoke the terrorism exception, Plaintiffs must

make two threshold showings. First, the claimant or

victim must be a U.S. national, a U.S. servicemember,

or a U.S. government employee. See 28 U.S.C.

§ 1605A(a)(2)(A)(ii). Plaintiffs easily meet the requirement because two direct victims of the attacks,

Eli and Yoav, are U.S. citizens. See Compl. ¶¶ 4, 9.

True, some Plaintiffs are not U.S. nationals. But “this

fact is non-consequential” for jurisdictional purposes

because some victims are U.S. nationals. Force, 464

F. Supp. 3d at 369.

Second, the State Department must have designated

the foreign government as a state sponsor of terrorism

40a

at the time of the attack and when Plaintiffs filed their

lawsuit. See 28 U.S.C. § 1605A(a)(2)(A)(i). Plaintiffs

again easily clear this hurdle: The State Department

has designated Syria and Iran as state sponsors of terrorism since 1979 and 1984, respectively. See Dep’t of

State, Bureau of Counterterrorism, State Sponsors of

Terrorism

(last

accessed

Feb.

4,

2022),

https://www.state.gov/state-sponsors-of-terrorism.

Once past those thresholds, Plaintiffs must show that

their claims fit within the terrorism exception’s narrow waiver of sovereign immunity. The waiver contains five requirements:

[1] money damages are sought against a foreign state [2] for personal injury or death

[3] that was caused by [4] 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 or resources is

[5] 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.

28 U.S.C. § 1605A(a)(1). The Complaint establishes

the first two requirements. Plaintiffs seek money

damages, see Compl. ¶ 136(a)-(b), for suffering after

the attacks in Israel, see id. ¶¶ 94–97. The Court’s

analysis thus focuses on the latter three requirements, though in a different sequence.

The States provided Hamas with “material support” to

carry out the attacks. Recall the resources that Iran

and Syria supplied to Hamas. See supra II.B, II.C.

Syria gave Hamas a safe base from which to organize

41a

its terrorist and diplomatic activities. Iran gave Hamas money, weapons, and training for Hamas fighters. Plaintiffs have thus provided evidence “satisfactory to the court,” 28 U.S.C. § 1608(e), that the States

materially supported Hamas and that this support

came from the States’ officials and agents “while acting within the scope of [their] office, employment, or

agency,” id. § 1605A(a)(1).

The States gave material support “for” an extrajudicial

killing. The definition of “extrajudicial killing” comes

from the Torture Victim Protection Act of 1991

(TVPA), which defines the term as “a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all

the judicial guarantees which are recognized as indispensable by civilized peoples.” See 28 U.S.C. § 1350

note.

Plaintiffs assume that the attacks were “an act of extrajudicial killing” because the attackers “deliberated”

killing people, even though they ultimately failed to

do so. See Pls.’ Mot. at 15–16. They offer paltry support for this assertion, citing only one case in which

terrorists did kill someone. See id. at 16 (citing Campuzano v. Islamic Repub. of Iran, 281 F. Supp. 2d 258,

270–71 (D.D.C. 2003)). And Plaintiffs do not suggest

that the attacks were acts of torture, aircraft sabotage, or hostage taking. The Court therefore must decide (without briefing) whether support for an attack

that killed nobody can still qualify as support for an

extrajudicial killing.

The Court begins, as it must, with the text of the definition for an extrajudicial killing. See Jackson v.

42a

Modly, 949 F.3d 763, 768 (D.C. Cir. 2020). The definition refers to a “killing.” That word denotes a fatality. See Killing, Black’s Law Dictionary (11th ed.

2019) (“The act of causing the end of an animate

thing’s life.”). Other courts agree. In Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 840 (D.C. Cir.

2009), the D.C. Circuit found that the assassination of

an Iranian citizen in France “clearly qualifies as an

extrajudicial killing.” The Eleventh Circuit likewise

reads the TVPA to require, “at a minimum,” some act

“that takes another’s life.” Mamani v. Sanchez Bustamante, 968 F.3d 1216, 1233 (11th Cir. 2020). Thus, an

attack cannot be a “killing,” deliberated or otherwise,

if nobody dies. 8

Nor does the text suggest that the definition’s limitation to a “deliberated killing” includes an “attempted

killing.” That suggestion defies the usual meanings of

“deliberated” and “attempted.” 9 A deliberated action

is one in which the actor “consider[s] or discuss[es] [it]

carefully.” Deliberate, Am. Heritage Dictionary 227

(3d ed. 1994). An attempted action, on the other hand,

is one where the actor “make[s] an effort to do” that

action. Id. at 54. Thus, the adjectives “deliberated”

8 True, a bystander shot and killed Hasouna after he rammed

into the bus stop. That would constitute a “killing.” But Plaintiffs do not allege that Hasouna’s death suffices, and it is hard to

see how anyone “deliberated” his death. In any event, Hasouna’s

actions, not his death, “cause[d]” the injuries to Yoav and Rotem.

28 U.S.C. § 1605A(a)(1). Thus, a suit premised on Hasouna’s

death as an extrajudicial killing would fail to meet the exception’s plain terms.

9 “Deliberated” and “attempted” are the past participle forms

of the verbs “to deliberate” and “to attempt.” The Court therefore

cites definitions for those verbs.

43a

and “attempted” speak to different aspects of an act.

Whether an act is deliberated depends on the consideration given to it ahead of time. See Mamani v. Berzain, 654 F.3d 1148, 1155 (11th Cir. 2011) (defining

“deliberate” under the TVPA as “undertaken with

studied consideration and purpose”). Whether an act

is attempted turns on efforts made by the actor to accomplish the act. See United States v. Resendiz-Ponce,

549 U.S. 102, 107 (2007) (“ ‘[A]ttempt’ as used in common parlance connote[s] action rather than mere intent . . . .”).

A deliberated killing would appear to be a murder accomplished with what the common law described as

“malice aforethought,” while an attempted killing is

an inchoate crime. The Court therefore cannot include attempted killings in the phrase “deliberated

killings” without being unfaithful to the statutory

text. This the Court will not do. See Star Athletica,

LLC v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010

(2017) (“We thus begin and end our inquiry with the

text, giving each word its ordinary, contemporary,

[and] common meaning.”) (cleaned up). 10 The Court

must respectfully disagree with other judges in this

10 More, Owens v. Republic of Sudan militates against interpre-

tating “deliberated killing” to include attempted killings. 864

F.3d 751, 770 (D.C. Cir. 2017), vacated and remanded on other

grounds sub nom. Opati v. Repub. of Sudan, 140 S. Ct. 1601

(2020). There, the Circuit read the TVPA’s definition to “contain[ ] three elements(1) a killing; (2) that is deliberated; and

(3) is not authorized by a previous judgment pronounced by a

regularly constituted court.” Id. at 770. The Court has already

explained why a “killing” requires a fatality. Thus, an attempted

killing that, by definition, causes no deaths would not meet the

Circuit’s first element, even if it were a “deliberated” action under the second element.

44a

district who have held that attempted killings fall

within the TVPA’s definition of an extrajudicial killing. See, e.g., Lee, 518 F. Supp. 3d at 491; Gill v. Islamic Repub. of Iran, 249 F. Supp. 3d 88, 99 (D.D.C.

2017).

That said, those decisions also present another, more

compelling textual argument that ultimately saves

Plaintiffs. See, e.g., Karcher v. Islamic Repub. of Iran,

396 F. Supp. 3d 12, 57 (D.D.C. 2019). The FSIA

waives sovereign immunity for injuries caused by

“material support for” an extrajudicial killing. 28

U.S.C. § 1605A(a)(1) (emphasis added). The word

“for” matters.

As used in the provision, “for” “indicate[s] the object

or purpose of an action or activity.” For, Am. Heritage

Dictionary 329 (3d ed. 1994). One dresses “for” dinner

or studies “for” an exam even if the dinner or exam

never occurs. Thus, a foreign state’s support with the

object or purpose of an extrajudicial killing constitutes

support “for such an act” under the statute. 28 U.S.C.

§ 1605A(a)(1); accord Force, 464 F. Supp. 3d at 360–

61. And support with that intention or objective can

therefore cause “personal injury,” even if a resulting

attack is not deadly. 28 U.S.C. § 1605A(a)(1). This interpretation faithfully considers Congress’s inclusion

of “for” in the statute and abides by the D.C. Circuit’s

guidance to “interpret [the FSIA’s] ambiguities flexibly and capaciously.” Van Beneden v. Al-Sanusi, 709

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

Plaintiffs have sufficiently alleged that the States

supported Hamas with that objective. Syria has long

sought to “derail any [Israeli-Palestinian] peace process or negotiations that it considers unfavorably.”

45a

Berti Decl. ¶ 21. Dr. Deeb testifies that Syria continued to give Hamas a base in Damascus even as Hamas

kidnapped Israelis. See Deeb Decl. ¶ 21a. Israeli

newspapers reported that Syria offered aid in 2002 for

Hamas to resume suicide bombings against Israel.

See Berti Decl. ¶ 45. And Syria facilitated advantageous political meetings between Hamas and foreign

leaders, see id. ¶ 47 (the Iranian president), and

granted Hamas a presence in Lebanon, where Syria

held de facto control for years, see id. ¶ 46. The Court

finds that Syria supplied this aid with the objective of

furthering Hamas’s activities, which included “deliberated killings” not sanctioned by applicable law. 28

U.S.C. 1350 note. Syria could not have provided its

support without that awareness.

As to Iran, Plaintiffs’ evidence is even stronger. An

Iranian ambassador publicly promised to compensate

families of those who died attacking Israelis. See

Clawson Decl. ¶ 28. According to Dr. Clawson, Iran

also “paid generously for results” in the form of bombings in Israel. Id. ¶ 38. And Iran manufactured weapons for Hamas, with Hamas leadership’s public

thanks. See id. ¶¶ 47, 56. Finally, Iran publicly supported Hamas during a rash of kidnappings and

bombings that it conducted in 2014. See id. ¶ 58.

Plaintiffs’ evidence thus shows that Iran knew of Hamas’s violent activities, yet still provided support.

And the evidence shows that the Hamas operatives intended the attacks here to be deadly. In Nasr’s statement to Israeli police, he said that “the purpose of the

gunfire was to kill a Jew.” Spietzen Decl. ¶ 73. Akram

likewise told police that the shooting’s purpose “was

to murder and injure Israelis as revenge for the

deaths of” Palestinian martyrs. Id. The two brothers

46a

clearly contemplated a killing when they entered that

room overlooking the Cave.

So too for Hasouna. Israeli investigators found no

sign that Hasouna braked before barreling into the

bus stop. See Spietzen Decl. ¶ 122. He sped into a

crowd, an action that any driver knows could be lethal. Accord Sines v. Kessler, 324 F. Supp. 3d 765, 796

(W.D. Va. 2018) (reviewing statements from alleged

coconspirators discussing the possibility that a car

could run over and kill counterprotestors at the 2017

Unite the Right rally in Charlottesville).

That

Hasouna’s car only injured others was luck, not intentional. And even if he planned only to injure with his

car, Hasouna brought an axe for use afterwards, see

id. ¶ 120, probably to imitate the “ramming and stabbing” attacks that occurred widely across Israel in

2014–15, id. ¶ 120 n.82. These facts, particularly

when combined with Hasouna’s pre-attack promise to

intercede for his mother in Paradise, see id. ¶ 124,

show that Hasouna planned to kill those gathered at

the bus stop. And he was willing to die doing so.

In sum, Hamas undertook both attacks with an intent

to kill and with material support from the States.

Thus, the States gave material support for an extrajudicial killing.

The States’ support to Hamas caused Plaintiffs’ injuries. The FSIA requires Plaintiffs to show proximate

cause, meaning “some reasonable connection between

the act or omission of the defendant and the damage

which the plaintiff has suffered.” Owens, 864 F.3d at

794 (cleaned up). To establish a “reasonable connection,” Plaintiffs must show both that “the defendant’s

actions [were] a substantial factor in the sequence of

47a

events that led to [their] injury” and that their injury

“must have been reasonably foreseeable or anticipated as a natural consequence of the defendant’s conduct.” Id. (cleaned up).

As to Syria, Dr. Deeb concludes that Syrian support

“enabled [Hamas] to transform itself” from a fledgling

cell to a terror group “with a solid infrastructure and

the power to wreak devastation against Israel.” Deeb

Decl. ¶ 23. He also concludes that Syrian support “is

directly responsible for the Hamas terrorist attacks

we see today.” Id. ¶ 24. Dr. Berti likewise testifies

that “without the support of a prominent Arab state

like Syria to lend it legitimacy, [Hamas] would be

more isolated and unable to” solidify itself as a major

player. Berti Decl. ¶ 50. Plaintiffs have thus persuaded the Court that Syrian support was key to the

attacks at issue.

As for Iran, Dr. Clawson discusses the “substantial financial and military support” given to Hamas. Clawson Decl. ¶ 34. This included “advanced weapons” for

attacks in Israel, id. ¶ 50, and direct infusions of cash,

see id. ¶ 48. Hamas has publicly acknowledged Iran’s

assistance to Hamas’s efforts. See id. ¶ 59. The Court

is persuaded that Iranian support was instrumental

to the attacks in Hebron and Jerusalem.

The Court also finds that these attacks caused reasonably foreseeable suffering. Hamas has a long history

of planning and conducting attacks in Israel. Dr.

Spietzen describes a wave of such attacks in 2015–16,

which corresponded to the two attacks. See Spietzen

Decl. ¶¶ 52–69. Although Syria’s support predates

these attacks, Syria gave Hamas safe haven during

previous years of similar attacks. Syria knew then

48a

about Hamas’s efforts. See, e.g., Deeb Decl. ¶ 21a.

Iran likewise supported Hamas during 2008–2017, see

Clawson Decl. ¶ 61, and it did so with full awareness

of how Hamas used that support.

For these reasons, the Court finds that the terrorism

exception applies and that the States have no sovereign immunity. This case falls therefore within the

Court’s subject matter jurisdiction. See 28 U.S.C.

§§ 1330(a), 1605A(a)(1).

B. Personal Jurisdiction

A court has personal jurisdiction over a foreign state

when it has subject matter jurisdiction and the plaintiff has made service as required in 28 U.S.C. § 1608.

See 28 U.S.C. § 1330(b).

Section 1608 “provides four methods of service in descending order of preference.” Barot v. Emb. of the Repub. of Zambia, 785 F.3d 26, 27 (D.C. Cir. 2015). The

first is “by delivery of a copy of the summons and complaint in accordance with any special arrangement for

service between the plaintiff and the foreign state or

political subdivision.” 28 U.S.C. § 1608(a)(1). The second is “by delivery of a copy of the summons and complaint in accordance with an applicable international

convention on service of judicial documents.” Id.

§ 1608(a)(2). Next, a plaintiff can effect service “by

sending a copy of the summons and complaint and a

notice of suit . . . by any form of mail requiring a

signed receipt, to be addressed and dispatched by the

clerk of the court to the head of the ministry of foreign

affairs of the foreign state concerned.” Id. § 1608(a)(3).

And finally, if none of the first three methods works,

a plaintiff can serve the documents through the Department of State. Id. § 1608(a)(4).

49a

Here, neither Iran nor Syria made a special arrangement, nor are they party to an international convention on the service of judicial documents. See Braun

v. Islamic Repub. of Iran, 228 F. Supp. 3d 64, 78

(D.D.C. 2017). Plaintiffs next attempted an international mailing by the Clerk of Court, but the Clerk was

unable to effect service. See Status Report at 2–3,

ECF No. 12. So Plaintiffs requested the State Department to complete service under § 1608(a)(4). See id.

at 3. This last route was ultimately successful. According to letters from the Department, it served Iran,

see ECF No. 15, and Syria, see ECF No. 18, by diplomatic note.

Because the Court has subject matter jurisdiction and

Plaintiffs made proper service, the Court has personal

jurisdiction over the States.

C. Causes of Action

The FSIA creates a private cause of action against foreign state sponsors of terrorism liable for “personal injury or death.” See 28 U.S.C. § 1605A(c). The elements of this cause of action overlap with the terrorism exception to sovereign immunity, so the Court’s

subject matter jurisdiction analysis shows that the exception’s cause of action is available here. See Foley

v. Syrian Arab Repub., 249 F. Supp. 3d 186, 205

(D.D.C. 2017).

But that availability does not extend to all Plaintiffs.

Only U.S. nationals, U.S. servicemembers, employees

of the U.S. Government, or their legal representative

may bring claims under the federal cause of action.

See 28 U.S.C. § 1605A(c)(1)-(3). Ten Plaintiffs are

U.S. citizens—Eli and his family; Yoav; Yoav’s

mother, Yehudit Golan; and Yoav’s brother, Matan

50a

Golan (collectively, U.S. Plaintiffs). See Compl. ¶¶ 4–

9. 12–13. Based on their citizenship, these Plaintiffs

may use the cause of action found in § 1605A(c).

The other nine Plaintiffs (collectively, Israeli Plaintiffs) are Israeli citizens. See id. ¶¶ 10–11, 13–19. Recall that the presence of foreign plaintiffs does not deprive the Court of jurisdiction over their claims because the victims of the attacks were U.S. nationals,

as required by § 1605A(a)(2)(A)(ii)(I). Accord Thuneibat v. Syrian Arab Repub., 167 F. Supp. 3d 22, 35

(D.D.C. 2016). But Israeli Plaintiffs cannot proceed

under § 1605A’s cause of action. Instead, they may

“pursue claims under applicable state or foreign law.”

Fraenkel v. Islamic Repub. of Iran, et al., 892 F.3d 348,

353 (D.C. Cir. 2018) (cleaned up). For their claims,

the Court must conduct a choice-of-law analysis. See

Oveissi, 573 F.3d at 841.

The Court will analyze the States’ liability first to U.S.

Plaintiffs and then to Israeli Plaintiffs.

1. U.S. Plaintiffs

Although the FSIA provides a private cause of action,

it does not provide the substantive basis for Plaintiffs’

claims. See Selig, 2021 WL 5446870, at *12. Plaintiffs

must instead “prove a theory of liability” to justify

holding the States liable. Roth v. Islamic Repub. of

Iran, 78 F. Supp. 3d 379, 399 (D.D.C. 2015). When

adjudicating those theories, the Court cannot “fashion

a complete body of law.” Bettis v. Islamic Repub. of

Iran, 315 F.3d 325, 333 (D.C. Cir. 2003). Instead, the

Court relies “on well-established statements of common law, found in state reporters, the Restatement of

Torts, and other respected treatises.” Fraenkel, 892

F.3d at 353.

51a

a. Battery

As survivors of the attacks, Eli and Yoav allege that

the States committed battery. The States are liable

for battery if they (1) acted “intending to cause a

harmful or offensive contact with . . ., or an imminent

apprehension of such a contact” by those attacked and

(2) “a harmful contact” with those attacked “directly

or indirectly result[ed].” Restatement (Second) of

Torts § 13; see Roth, 78 F. Supp. 3d at 400. Harmful

contact occurs when “any physical impairment” or

“physical pain or illness” results from an incident. Restatement (Second) of Torts § 15.

Iran and Syria supported Hamas with the intent to

cause harmful contact; “acts of terrorism are, by their

very nature, intended to harm and to terrify by instilling fear.” Valore v. Islamic Repub. of Iran, 700 F.

Supp. 2d 52, 77 (D.D.C. 2010). And Eli and Yoav suffered physical harm. Eli suffered a gunshot wound

that required immediate surgery, see Friedman Decl.,

Ex. B at 1, and he testified to the “excruciating pain”

that the wound caused him, see Eli Decl. ¶ 7. Yoav

suffered a fractured shoulder and a crushed leg. See

Yoav Decl. ¶¶ 16–19. So Eli and Yoav have shown the

States’ liability under the FSIA for battery and for the

physical injuries resulting from that battery.

b. Assault

Eli’s father, Ronen, and brother, Josef, were also present for the Hebron shooting. See Declaration of Josef

Barachov (Josef Decl.) ¶ 5, ECF No. 34; Declaration of

Ronen Barachov (Ronen Decl.) ¶¶ 4–5, ECF No. 35.

They assert that Iran and Syria committed an assault,

causing them “fear and apprehension of death.”

Compl. ¶ 112. The States are liable for assault if,

52a

when they provided material support and resources

for the attack, (1) they acted “intending to cause a

harmful or offensive contact with” or an imminent apprehension of such a contact by Ronen and Josef; and

(2) Ronen and Josef were “put in such imminent apprehension.” Akins v. Islamic Repub. of Iran, 332 F.

Supp. 3d 1, 35–36 (D.D.C. 2018) (quoting Restatement

(Second) of Torts § 21(1)).

As discussed above, the States supported Hamas with

the intent to cause harmful contact and the immediate

apprehension of that contact. Acts of terrorism are

“intended to harm and to terrify by instilling fear of

further harm.” Murphy v. Islamic Repub. of Iran, 740

F. Supp. 2d 51, 73 (D.D.C. 2010). And both men feared

further harm after the attack. Josef told Dr. Strous

that the entire attack was “extremely frightening”

and that, for the next months, he grew scared whenever he saw workers in buildings. Strous Expert Report on Josef Borochov at 2, ECF No. 50-5. “He

thought they were snipers in windows waiting to target him.” Id. Ronen similarly “freaked out” from

shock and felt “immense fear, terror, agitation, dread,

and distress” immediately following the shooting.

Strous Expert Report on Ronen Borochov at 2, ECF

No. 50-6. For months afterwards, Ronen would think

“about what could have happened” and suffered severe anxiety as a result. Id. at 3.

Plaintiffs have accordingly shown that the States are

liable to Rotem and Josef for assault.

53a

c. Solatium/Intentional Infliction

of Emotional Distress

All U.S. family members sue for “loss of solatium,” see

Compl. ¶¶ 95, 97, which is “the mental anguish, bereavement, and grief” experienced by those with a

close relationship to the victim. Est. of Hirshfeld v. Islamic Repub. of Iran, 330 F. Supp. 3d 107, 140 (D.D.C.

2018) (cleaned up). Under the FSIA, a solatium claim

“is indistinguishable” from an intentional infliction of

emotional distress (IIED) claim. Id. Courts apply the

Restatement (Second) of Torts to these claims. See,

e.g., Abedini, 422 F. Supp. 3d at 133.

The States are liable for IIED if they “by extreme and

outrageous conduct intentionally or recklessly

cause[ ] severe emotional distress to another.” Restatement (Second) of Torts § 46(1). The Restatement

permits recovery by (1) members of the victim’s immediate family (2) who were present at the time of the

conduct. See id. § 46(2); Est. of Hirshfeld, 330 F. Supp.

3d at 141.

Here, the States provided material support to Hamas

with the understanding and intent that Hamas would

carry out attacks in Israel. Those acts of terrorism

“are inherently extreme and outrageous.” Abedini,

422 F. Supp. 3d at 135. And because of the outrageousness of an act of terrorism, courts have waived

the Restatement’s presence requirement for family

members so long as they “suffer[ ] mental anguish and

trauma as a result of” the attack. Cohen v. Islamic

Repub. of Iran, 238 F. Supp. 3d 71, 85 (D.D.C. 2017);

see also Est. of Hirshfeld, 330 F. Supp. 3d at 141.

54a

Thus, all family members can recover for IIED regardless of their presence at the attack. 11 Accord Akins,

332 F. Supp. 3d at 37–38. The Court has reviewed the

declarations submitted by each U.S. family member

and is persuaded that all of them suffered “severe

emotional distress” from the injuries suffered by Eli

and Yoav. Restatement (Second) of Torts § 46(2).

The U.S. Plaintiffs have thus established Iran’s and

Syria’s liability under the federal private right of action for their solatium claims.

2. Israeli Plaintiffs

Now consider the nine Israeli Plaintiffs—all family

members of Yoav and Rotem. They bring various

state-law claims against the States. 12 Recall that

they can rely only on state tort law to supply the requisite cause of action. That approach requires the

Court to first determine “which jurisdiction’s substantive law to apply.” Oveissi, 573 F.3d at 841. For that

11 This includes Ronen and Josef, despite their successful as-

sault allegation. They suffered psychological injuries from being

present for the shooting that wounded Eli. The Court’s assault

analysis above accounts for those injuries. Solatium damages,

on the other hand, compensates Ronen and Josef for their grief

at seeing Eli shot and at seeing him struggle over the next

months. See Braun, 228 F. Supp. 3d at 85–86 (awarding damages for assault and solatium to parents who were present for

terrorist attack that killed their child).

12 According to the Complaint, the U.S. Plaintiffs also bring

these claims. But U.S. Plaintiffs have already shown liability for

their injuries under the federal cause of action. These state law

claims thus provide no “additional right to recover.” Force, 464 F.

Supp. 3d at 371; see also Barry v. Islamic Repub. of Iran, 410 F.

Supp. 3d 161, 178 n.8 (D.D.C. 2019) (declining to consider a statelaw claim arising from same predicate acts when plaintiff had

shown liability under the federal cause of action).

55a

determination, the Court applies choice-of-law rules

from its forum, the District of Columbia. See id. 13

a. Choice of Law

The District combines a “governmental interest analysis” with a “most significant relationship test.” W.A.

v. Islamic Repub. of Iran, 427 F. Supp. 3d 117, 139

(D.D.C. 2019). Under the first analysis, “the Court

evaluates the governmental policies underlying the

applicable laws and determines which jurisdiction’s

policy would be most advanced by having its law applied” to the case. Id. (cleaned up). Under the second

portion—the most significant relationship test—the

Court must consider four factors from the Restatement (Second) of Conflict of Laws: (1) the place where

the injury occurred; (2) the place where the conduct

causing the injury occurred; (3) the parties’ domicile,

residence, and nationality; and (4) “the place where

the relationship, if any, between the parties is centered.” Id. (quoting Restatement (Second) of Conflict

of Laws § 145(2)).

Here, two sources of law could apply: D.C. law as law

of the forum state, or Israeli law as law of Plaintiffs’

domiciles and law where the attacks occurred. Plaintiffs contend that Israeli law is the better fit. See Proposed Order at 69. The Court agrees.

13 Recently, the Supreme Court heard arguments in Cassirer v.

Thyssen-Bornemisza Collection Foundation, No. 20-1566 (U.S.,

cert. granted Sep. 30, 2021), to decide what choice-of-law rules

govern in FSIA cases. Because no opinion in that case has been

yet issued, this Court abides by current D.C. Circuit precedent

and applies the forum’s choice-of-law rules.

56a

Israel has a strong interest in “both deterring attacks

within its sovereign borders and ensuring compensation for injuries to its domiciliaries.” Oveissi, 573 F.3d

at 842. Here, both attacks occurred in Israel, and all

nine Israeli Plaintiffs live there. The interest of the

United States is slight by comparison. No evidence

suggests that any victim “was targeted because of

[their] relationship to the United States government.”

W.A., 427 F. Supp. 3d at 139; see also Est. of Doe v.

Islamic Repub. of Iran, 808 F. Supp. 2d 1, 22 (D.D.C.

2011) (applying domestic law to claims arising from

terrorist attack “on a United States embassy and diplomatic personnel”). The governmental interest analysis favors application of Israeli law.

So does the most significant relationship test. The injury occurred in Israel; the conduct causing the injury

occurred in Israel, the Palestinian territories, Iran,

and Syria; all Israeli Plaintiffs are Israeli citizens; and

no legal relationship exists between them and either

the States or Hamas. Accord Force, 464 F. Supp. 3d

at 373–74 (applying Israeli law for claims by non-U.S.

plaintiffs arising from attacks in Israel). The Court

will accordingly apply Israeli law to the claims of Israeli Plaintiffs.

b. Liability Under Israeli Law

When applying foreign law, the Court “may consider

any relevant material or source, including testimony,

whether or not submitted by a party or admissible under the Federal Rules of Evidence.” Fed. R. Civ. P.

44.1. Plaintiffs here rely on declarations from two professors of Israeli law: (1) Dr. Boaz Shnoor, see Declaration of Boaz Shnoor (Shnoor Decl.), ECF No. 34,

Force v. Islamic Repub. of Iran, No. 16-cv-1468

57a

(D.D.C.); and (2) Israel Gilead, see Declaration of Prof.

Israel Gilead (Gilead Decl.), ECF No. 56-2, Henkin v.

Islamic Repub. of Iran, No. 19-cv-1184 (D.D.C.). The

Court considers physical injuries and then emotional

injuries.

i. Physical Injuries

Among the Israeli Plaintiffs, only Rotem suffered

physical injuries. But the Complaint does not explain

her theory of liability. Counts II and III allege battery

and assault, see Compl. ¶¶ 103–15, but under Israeli

law those torts require direct harm or attempted harm

by a defendant, see Shnoor Decl. ¶¶ 26, 28. Dr. Shnoor

himself analyzes assault and battery as applied to

Hasouna, the direct tortfeasor, not to Iran and Syria.

See id. ¶ 31 (“[T]here is not a doubt in my mind that

any Israeli court would have found the Hamas terrorists, sponsored and supported by the Defendants, liable for . . . battery and assault under Article 23 of the

CWO.”) (emphasis added). So Rotem could not succeed against the States for those torts.

To remedy this and other deficiencies, the Court asked

Plaintiffs to provide more information about their theory of liability. See Show Cause Order, ECF No. 56.

Plaintiffs responded that they had shown that the

States “aided and abetted Hamas’s tortious acts” under Israeli law. See Show Cause Response at 12, ECF

No. 57. This theory follows the Complaint: Count VII

alleges that the States aided and abetted Hamas’s

“acts of international terrorism, extrajudicial killing[,]

and personal injury.” See Compl. ¶ 129.

According to Plaintiffs’ experts, Article 12 of Israel’s

Civil Wrongs Ordinance (CWO) holds liable “anyone

who helps another or encourages him to perform a

58a

civil wrong” as if the helper had “committed the wrong

himself.” Shnoor Decl. ¶ 45; see also Gilead Decl. ¶ 36

(noting that the “first requirement” for aiding and

abetting liability is a primary tortfeasor). Dr. Shnoor

reports that Israeli courts impose aiding and abetting

liability if a defendant’s actions “significantly contributed to the tortious actions of the direct tortfeasor.”

Id. ¶ 46. The Court has already determined that the

States’ actions significantly contributed to the attackers’ efforts. See supra IV.A. The only remaining question is whether those efforts were “tortious.” Shnoor

Decl. ¶ 46.

They were for Rotem’s physical injuries. Battery under Israeli law requires that a defendant (1) knowingly (2) use force (3) against the body of another

(4) without that person’s consent. See Shnoor Decl.

¶ 28. Hasouna drove his car into Rotem’s body, throwing her against a glass wall at the bus stop. See Rotem

Decl. ¶ 5. He thus used force against her body without

her consent. And he did so knowingly. He chose the

anniversary of Hamas’s founding as the date for the

attack and brought with him an axe painted in a green

shade associated with Hamas. See id. ¶¶ 125–26.

These actions show planning of the attack and support an inference that Hasouna knowingly rammed

Rotem with his car.

Thus, Hasouna committed a battery against Rotem.

And the States, through their material support to Hamas, significantly contributed to that battery. The

States are thus liable under Israeli law for aiding and

59a

abetting a battery. 14 See Shnoor Decl. ¶ 46. Rotem

may recover for her physical injuries.

ii. Emotional Injuries

All other Israeli Plaintiffs seek recovery for their emotional damages (essentially, for solatium) resulting

from the attack on Yoav and Rotem. Based on Plaintiffs’ aiding and abetting theory in their Show Cause

Response, the Court follows a similar approach as for

Rotem’s battery. The Court will first analyze whether

Hamas committed an underlying tort and then

whether the States aided and abetted that tort.

First, the underlying tort. Plaintiffs insist that the

Court should analyze Hamas’s actions under the Israeli tort of negligence. But the word negligence never

appears in the Complaint. Even so, Plaintiffs’ experts

have established that Israeli negligence covers both

negligent and intentional acts. See Shnoor Decl. ¶ 13;

Gilead Decl. ¶ 25. And the Complaint includes allegations of multiple intentional actions, including intentional infliction of emotional distress and civil conspiracy. See Compl. ¶¶ 116–20; 125–27. The Court also

notes Judge Lamberth’s opinion in Henkin v. Islamic

Republic of Iran, no. 10-cv-1184 (RCL), 2021 WL

2914036 (D.D.C. Jul. 12, 2021). The plaintiffs there

likewise did not separately allege negligence but included many of the same claims as Plaintiffs here. See

14 The Court need not analyze whether Rotem has successfully

alleged aiding and abetting of an assault. Her successful battery

pleading assures her of recovery for her injuries. See Braun, 228

F. Supp. 3d at 80 (“[R]ecovery for the same injury under more

than one theory of liability is forbidden.”) (citing Kassman v. Am.

Univ., 546 F.2d 1029, 1034 (D.C. Cir. 1976)).

60a

id. at *3. Yet Judge Lamberth analyzed whether Israeli negligence law applied. See id. at *8. The Court

will follow his example. See also Est. of Botvin v. Islamic Repub. of Iran, 873 F. Supp. 2d 232, 242–43

(D.D.C. 2012) (determining that terrorists committed

negligence and that foreign state sponsors aided and

abetted that negligence).

Articles 35–36 of the CWO set forth the tort of negligence. See Shnoor Decl. ¶ 13. It consists of four elements: (1) duty of care; (2) breach of that duty; (3)

causation; and (4) harm. See id. ¶ 15.

The Court has little difficulty concluding that Hamas’s actions amounted to negligence. A duty of care

under Israeli law arises “whenever a reasonable person could have foreseen” that their conduct “could

cause the harm alleged.” Id. ¶ 17. Hasouna could

have reasonably foreseen that driving a car into a

crowded bus stop would physically harm those bystanders and emotionally damage their family members. So a duty arose. And Hasouna breached that

duty. A breach occurs when the party with the duty

fails to take “reasonable precautionary measures.” Id.

Far from taking precautionary measures, Hasouna

never braked as he drove into the bus stop. See

Spietzen Decl. ¶ 122. Under Israeli law, he breached

his duty.

The causation element requires “both causation in

fact and legal causation (proximate cause).” Shnoor

Decl. ¶ 20. “Cause in fact is generally determined in

Israel according to the ‘but for’ test.” Id. ¶ 21. And

legal causation is met “[i]f a reasonable person could

have foreseen that harm of the kind that happened

might happen.” Id. ¶ 22. Hasouna’s actions fulfill

61a

both types of causation. His vehicular rampage was

the but for cause of Rotem and Yoav’s injuries. Without his choice to ram into the bus stop, they would not

be hurt, and their families would not have suffered.

And as discussed in the duty element, Hasouna could

have reasonably foreseen that driving a car into a

crowded bus stop would cause those injuries.

Finally, the CWO defines harm as “loss of life, or loss

of, or detriment to, any property, comfort, bodily welfare, reputation, or other similar loss or detriment.”

Shnoor Decl. ¶ 23. That definition of harm includes

emotional and psychological damages. Israeli Plaintiffs’ own declarations and Dr. Strous’s reports attest

to the mental and emotional harms suffered because

of Yoav’s and Rotem’s injuries. The Court thus concludes that Israeli Plaintiffs have adequately alleged

harm and that Hamas committed Israeli negligence.

Plaintiffs also show that the States aided and abetted

that negligence. That analysis is largely set forth

above. The Court has already determined that the

States’ actions significantly contributed to Hamas’s

efforts, which in turn caused Hasouna’s attack. See

supra IV.A. The States knew of Hamas’s violent intentions and “nonetheless provided support in spite of

them.” Est. of Botvin, 873 F. Supp. 2d at 242. And the

States’ funding and support coincided with and allowed Hamas to conduct terrorist attacks, “including

the [bus stop attack] at issue here.” Id. The material

support from the States thus “significantly contributed” to Hamas’s negligence. Shnoor Decl. ¶ 46. The

States are therefore liable for aiding and abetting that

tort. Israeli Plaintiffs may recover for their emotional

injuries from the attack on Yoav and Rotem.

62a

D. Individual Damages

The Court moves next to damages. To obtain damages

in an FSIA suit, “a plaintiff must prove that the consequences of the defendants’ acts were reasonably certain to occur, and he must prove the amount of damages by a reasonable estimate.” Abedini, 422 F. Supp.

3d at 136 (cleaned up). Recall that physical injuries

and emotional suffering were a foreseeable result of

the States’ actions. See supra IV.A. So the Court

must determine whether each Plaintiff’s claim for

damages is supported by a “reasonable estimate.”

Abedini, 422 F. Supp. 3d at 136.

1. U.S. Plaintiffs

Assessing damages “is an imperfect science.” Goldstein v. Islamic Repub. of Iran, 383 F. Supp. 3d 15, 19

(D.D.C. 2019). No amount of money can compensate

a victim and his family for suffering after a terrorist

attack. “In the interest of fairness, however, courts

strive to maintain consistency of awards” between

plaintiffs in comparable situations. Id. To achieve

consistency, courts in this district have adopted standard amounts for each type of plaintiff. Those figures

originate from Estate of Heiser v. Islamic Republic of

Iran, 466 F. Supp. 2d 229 (D.D.C. 2006). Heiser is a

useful reference point, “not binding precedent.”

Fraenkel, 892 F.3d at 351. Courts vary from these

standards depending on the facts of each case. See

Selig, 2021 WL 5446870, at *13 (collecting cases); see

also Fraenkel, 892 F.3d at 361 (“District Court judges

invariably must exercise discretion in determining

damages awards under the FSIA.”). Thus, the Court

will treat them as a guide only.

63a

The relevant standards for damages are as follows.

For pain and suffering, courts generally assume that

“persons suffering substantial injuries in terrorist attacks” should receive $5 million in damages. Barry,

410 F. Supp. 3d at 180; see Cohen v. Islamic Repub.

of Iran, 268 F. Supp. 3d 19, 24 (D.D.C. 2017). Substantial injuries include “compound fractures, severe

flesh wounds, and wounds and scars from shrapnel, as

well as lasting and severe psychological pain.” Valore,

700 F. Supp. 2d at 84 (cleaned up). Victims who suffer

“severe emotional injury accompanied by relatively

minor physical injuries” receive $1.5–$3 million.

Barry, 410 F. Supp. 3d at 180 (cleaned up). Awarding

damages for physical injuries “assumes severe psychological injuries.” Id. (cleaned up).

For solatium damages, the standard amount “depends

in part on the nature of the relationship between the

family member and the victim, and the severity of the

pain suffered by the family member.” Bathiard v. Islamic Repub. of Iran, 2020 WL 1975672 at *5 (D.D.C.

Apr. 24, 2020) (cleaned up). When the victim suffers

a nonfatal injury, courts have applied a framework

under which “[s]pouses receive $4 million, parents receive $2.5 million, and siblings receive $1.25 million.”

Moradi v. Islamic Repub. of Iran, 77 F. Supp. 3d 57,

72 (D.D.C. 2015); see Cohen, 268 F. Supp. 3d at 26.

The Court will apply this framework to the U.S. Plaintiffs, starting with Eli’s family and then moving to

Yoav’s.

Eli Borochov. Eli seeks $5 million in pain and suffering. See Proposed Order at 76. The Court has already

referenced Eli’s injuries. After striking his thigh, the

bullet traveled into his genital area before exiting his

64a

body. See Friedman Decl. Ex. B at 1. As a “serious

flesh wound,” the damage to Eli’s leg and genitals constitutes a “substantial” physical injury. Braun, 228 F.

Supp. 3d at 84. The wound caused “excruciating pain”

that did not dissipate as medics transported Eli to the

hospital. Eli Decl. ¶ 7. And the months after surgery

were not easy. Eli’s stitches often came apart, requiring replacements and more pain. See id. ¶ 32. Eli developed a limp, which caused him back pain. See id.

¶ 35. Adding to his discomfort, the area around Eli’s

wound is often sensitive, making it hard to sit down

or sleep. See id. ¶ 40–42. Eli missed three months of

college because of his injuries, see id. ¶ 45, and he feels

anxious in large crowds, see id. ¶ 47. Because Eli suffered “substantial injuries” in the shooting, the Court

will award him $5 million in keeping with the Heiser

framework.

Ronen Borochov. Ronen seeks $1.5 million in pain and

suffering. See Proposed Order at 76. Once he saw Eli

shot on the ground, Ronen went into a “state of shock.”

Ronen Decl. ¶ 15. He reported to Dr. Strous that he

felt “immense fear, terror, agitation, dread, and distress.” Strous Expert Report on Ronen Borochov at 2.

He felt “helpless” as emergency responders transported Eli to the hospital, Ronen Decl. ¶ 22, and Ronen was “shaking and agitated” from the stress of seeing his son in an ambulance, Strous Expert Report on

Ronen Borochov at 2. After the attack, Ronen could

not sleep for months and calmed himself by eating.

See id. at 3. Dr. Strous diagnosed Ronen as suffering

from post-traumatic stress disorder because of the

shooting. Strous Expert Report on Ronen Borochov at

6.

65a

The Court will award Ronen $1 million for his pain

and suffering. To be clear, Ronen experienced no

physical injury. True, some cases grant $1.5 million

for those who, like him, suffer only emotional injuries.

See Valore, 700 F. Supp. 2d at 84–85. But those cases

are not binding on this Court, and they compensate

emotional experiences more traumatic than Ronen’s.

See id. (awarding $1.5 million to victim who saw up

close the back of a man’s head shot off and had the leg

of a dead body detach in his arms). Ronen’s experience, while painful, does not merit the same damage

award. See Fraenkel, 892 F.3d at 362 (“[D]ifferent

plaintiffs (even under [the] FSIA) will prove different

facts that may well (and should) result in different

damage awards.”) (cleaned up).

Ronen also seeks solatium damages. See Proposed Order at 92. Once he and Eli returned to the United

States, Ronen “was consumed with thoughts of Eli’s

physical and emotional injuries.” Ronen Decl. ¶ 36.

Ronen’s sleep woes during that time stemmed from

nightmares about losing a child. See id. ¶ 40. He cut

his work hours considerably so that he could take Eli

to various doctors’ appointments. Strous Expert Report on Ronen Borochov at 3. According to Dr. Strous,

Ronen needed about a year to return to his pre-attack

level of activity and function. See id. Ronen is much

more nervous now. He always needs to know where

his children are and remains overly fragile and emotional. See id. at 3–4. “These harms are consistent

with those suffered by many parents of victims of terrorism.” Christie v. Islamic Repub. of Iran, No. 191289 (BAH), 2020 WL 3606273, at *26 (D.D.C. July 2,

2020). For his anguish at seeing the pain of his son,

66a

the Court will award Ronen the Heiser standard $2.5

million in solatium damages. 15 See id.

Josef Borochov. Eli’s brother Josef seeks $1.5 million

in pain and suffering. See Proposed Order at 77. Once

Josef heard a gunshot, he saw Eli on the ground

screaming in pain. Strous Expert Report on Josef

Borochov at 2. Josef thought Eli would die and knew

that if the bullet had traveled on a different path it

could have hit and killed Josef himself. See id. at 2.

And the attack took a mental toll on Josef. In the

months afterwards, he felt unable to walk around in

public areas. See id. He felt depressed during that

time and avoided interactions with others. See id. at

3. The attack has also changed his life plans—Josef

had planned to emigrate to Israel, but after the shooting he does not think he could live there in a “relaxed

manner.” Id. He thus no longer intends to emigrate.

See id. For the same reasons that the Court will

15 This award is higher than Ronen’s damages for his own pain

and suffering. The Court acknowledges that solatium damages

generally must be proportionate to pain and suffering damages

awarded to direct victims. See Spencer v. Islamic Repub. of Iran,

71 F. Supp. 3d 23, 28 (D.D.C. 2014). But Eli is the direct victim

whose injuries matter for Plaintiffs’ solatium claims. Thus, Ronen’s solatium award for Eli’s injuries can exceed Ronen’s award

for his own pain and suffering. In analogous situations when a

parent is present for the attack that injures their child, courts

typically award the parent more in solatium damages than for

their own pain and suffering. See, e.g., Cohen, 268 F. Supp. 3d

at 25–26 (awarding mother of injured children $5 million for her

own pain and $7.95 million for solatium); Braun, 228 F. Supp. 3d

at 84–86 (awarding mother and father who were present at suicide bombing that killed their child $2.5 million each for their

own pain and suffering and $6.25 million in solatium damages).

67a

award Ronen $1 million in pain and suffering, the

Court will grant Josef the same amount.

Josef also seeks solatium damages. He calls Eli his

“best friend” and someone he “admired.” Josef Decl.

¶ 14. Once medics evacuated Eli to a hospital, Josef

feared for the worst and thought that Eli was dead.

Strous Expert Report on Josef Borochov at 2. Over

the next hours and days, Josef could not think about

anything else and “thought he was going crazy.” Id.

As already mentioned, the trauma of what happened

to his brother caused depression in Josef. And whenever he discusses Eli’s shooting, Josef cries and has

heart palpitations. See id. at 3. These symptoms

match the suffering of “many siblings of victims of terrorism.” Akins, 332 F. Supp. 3d at 45. Thus, the Court

will award Josef $1.25 million in keeping with a

Heiser standard award for siblings. See id.

Shari Borochov. Eli’s wife Shari seeks solatium damages. She did not know Eli at the time of the shooting.

The couple met in 2017 and married in 2019. See

Strous Expert Report on Shari Borochov at 1, ECF No.

50-7. She asserts that Eli could not commit to a relationship with her until he could “recount the full

story” of the attack. Id. at 2. Once Shari learned of

his injuries, she feared that they would affect his fertility. See Declaration of Shari Borochov ¶ 20, ECF

No. 36. The couple still do not know what effect those

injuries will have on their life together. See id.

Shari requests $2.5 million in solatium damages. The

Court acknowledges her pain but cannot award her

damages. Courts in this district consistently refuse

damages to plaintiffs unassociated with the victim at

the time of the attack. See Bova v. Islamic Repub. of

68a

Iran, No. 15-cv-1074 (RCL), 2020 WL 2838582 at *10

(D.D.C. May 31, 2020) (denying solatium damages to

victim’s sister who was born after attack). Those uncompensated plaintiffs include “[c]urrent spouses who

were not yet married” to the victim. Est. of Bland v.

Islamic Repub. of Iran, 831 F. Supp. 2d 150, 157

(D.D.C. 2011); see Davis v. Islamic Repub. of Iran, 882

F. Supp. 2d 7, 17 (D.D.C. 2012). This limitation makes

sense. Without it, the class of future spouses able to

recover “could remain open for decades after a terrorist attack.” Davis, 882 F. Supp. 2d at 15. Courts must

draw a line to avoid “such an expansive and indefinite

scope of liability.” 16 Id.

More, Shari, unlike other recipients of solatium damages, never feared that a loved one had died. See

Christie, 2020 WL 3606273, at *26 (awarding solatium in part for “panic upon learning about” an attack

on a family member). Nor did she “fear for her

spouse’s physical well-being in the immediate aftermath” of the attack. Id. Shari learned about the attack on Eli two years later and never saw the immediate effects of his wounds. The Court recognizes her

pain at seeing those effects now. But her injuries, suffered years after the shooting, do not entitle her to solatium damages.

The Rest of Eli’s Family. Eli’s mother Devora seeks

solatium damages. When she heard about the attack,

Devora “quickly broke down, weeping and wailing.”

Declaration of Devora Borochov ¶ 16, ECF No. 31.

That day “felt like it lasted forever” as she waited for

16 The D.C. Circuit relied on similar logic to exclude victims’

nieces and nephews from solatium damages. See Bettis, 315 F.3d

at 337.

69a

news on Eli’s condition. Id. ¶ 26. And when she told

the other children about the attack, Devora had to

comfort them in their shock. See id. ¶¶ 31–33. Devora

fought back tears when she first saw Eli in his wheelchair, see id. ¶ 38, and during the early stages of his

recovery she would often “go into the bathroom, look

in the mirror, and just start crying,” id. ¶ 46. Devora

also worried that the wounds would damage Eli’s fertility. See id. ¶ 44. “Due to these worries, even after

he returned, she struggled to sleep for days and

weeks.” Strous Expert Report on Devora Borochov at

3, ECF No. 50-3. As a result of the shooting, Devora

became more anxious and has become “much more

protective of her children.” Id. For her grief after the

shooting of her son, the Court will award Devora the

Heiser standard of $2.5 million in solatium damages.

Eli’s brother Avraham seeks solatium damages. He

was in middle school when Eli was shot. See Declaration of Avraham Borochov ¶ 5, ECF No. 33. Avraham

was “terrified and in shock” when he learned of the

shooting, id. ¶ 10, and “cried for hours” into his pillow

that night, id. ¶ 11. “For weeks after the attack, [Avraham] could not sleep or think normally.” Id. ¶ 18.

He found it hard to concentrate in school knowing that

Eli was at home in pain. See id. ¶ 15. Avraham also

grew fearful—he “no longer feel[s] safe the way that

[he used] to.” Id. ¶ 22. He has become a “worrier” and

shows a fear of public places. Strous Expert Report on

Avraham Borochov at 2–3, ECF No. 50-2. Because of

this emotional suffering after his sibling’s injuries, the

Court will award Avraham $1.25 million in solatium

damages.

70a

Eli’s sister, Shira, also requests solatium damages.

When Shira heard about his shooting, she immediately began to cry. Declaration of Shira Borochov ¶ 7,

ECF No. 37. Shira told Dr. Storus that she felt “agony” at seeing Eli in a wheelchair and in so much pain.

Strous Expert Report on Shira Borochov at 2, ECF No.

50-8. At school, Shira’s classmates pestered her with

questions about her brother. “She felt overwhelmed”

and left school for some time. Id. at 2. Thoughts about

Eli and his condition “preoccupied her,” affecting “her

focus and concentration for many months.” Id. at 3.

Shira also felt that, because of the attention at school

on her brother’s shooting, she could not “develop her

own persona and identity.” Id. at 2. For her emotional

suffering from the injury to a sibling, the Court will

award Shira $1.25 million in solatium damages.

Yoav Golan. Yoav seeks $5 million in pain and suffering. See Proposed Order at 82. Recall that the impact

with the car dislocated Yoav’s shoulder, fractured it,

and created a crush injury on his leg. See Yoav Decl.

¶¶ 16, 20. Yoav was in “a lot of pain” and remembers

his entire body shaking after impact. Id. ¶ 21. Because of his injuries, Yoav could not walk and was confined to a wheelchair for a month. See id. ¶ 23. This

temporary disability prevented Yoav and Rotem from

returning to their own home, which is “only accessible

by stairs”; instead, they lived with Rotem’s family for

multiple months. Id. ¶ 26. Yoav needed help performing basic functions and often could not sleep because

of the pain. See id. ¶¶ 24, 25. He experiences leg pain

even now. See id. ¶ 30.

The attack also took a mental toll. Yoav “never feel[s]

secure,” especially when walking near the scene of the

attack. Id. ¶ 41. He has troubling flashbacks of the

71a

crash and immediately tenses up when he sees a car

drive too close to a sidewalk. See id. ¶¶ 45, 47. He

and his wife no longer feel safe taking walks in the

evening, and he refuses to drive his car at night. See

id. ¶¶ 54, 57. Yoav’s physical injuries resemble the

“compound fractures, severe flesh wounds, and

wounds and scars from shrapnel” that cause “severe

psychological pain” in victims of terrorist attacks.

Valore, 700 F. Supp. 2d at 84. The Court thus will

award him the standard amount of $5 million in pain

and suffering.

Yoav’s American Family. Yoav’s mother Yehudit and

his brother Matan are American citizens. See Compl.

¶¶ 12, 13. They both seek solatium damages.

Yehudit received a call from Yoav shortly after the attack, but the call got disconnected. See Declaration of

Yehudit Golan ¶¶ 6-7. She tried to reconnect with

him for 30 minutes, but it “felt like many hours” because of her worry for her son. Id. ¶ 8. She was unable to sleep that night, both out of concern for Yoav

but also because she took care of Yoav’s baby, who

would not eat. See id. ¶ 15. Over the next months,

Yehudit took time off work to accompany Yoav to various appointments and to help him around the house.

See id. ¶ 17. She also “frequently woke up at night

with horrible nightmares,” id. ¶ 23, and could not concentrate on her work, see id. ¶ 24. She reports being

fearful and anxious “by the thought [Yoav and Rotem]

could have died.” Id. ¶ 28. That thought “is in [her]

mind all the time.” Id. For her emotional suffering

after the injury to her child, the Court will award her

$2.5 million in solatium damages. Accord Blank v. Islamic Repub. of Iran, No. 19-cv-3645 (BAH), 2021 WL

3021450 at *12 (D.D.C. July 17, 2021).

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Once Matan heard about the attack and injuries to

Yoav, he traveled to Jerusalem and spent the night in

the hospital with Yoav and Rotem. See Declaration of

Matan Golan ¶¶ 10, 13, ECF No. 43. The “vision of

[their] suffering” continues “to follow [Matan] until

this day and appear[s] in [his] mind unbidden and for

no apparent reason.” Id. ¶ 13. Matan found it “very

difficult” to see his brother traumatized and in a

wheelchair. Id. ¶ 16. He also felt a personal impact

from the attack. Now he is “suspicious of each passing

car” and “examine[s] every person who walks behind”

him. Id. ¶ 17. Matan had trouble sleeping “[f]or a

long time after the attack.” Id. ¶ 18. And as Matan

told Dr. Strous, “[h]e is still bothered to see the extent

to which his brother is still affected from his physical

and emotional injuries.” Strous Expert Report on

Matan Golan at 3, ECF No. 51-3. For Matan’s emotional pain and suffering consistent with seeing his

brother’s injuries, the Court will award him $1.25 million. See Blank, 2021 WL 3021450, at *13.

2. Israeli Plaintiffs

In their Proposed Order, Israeli Plaintiffs follow the

U.S. Plaintiffs and request damages in line with

Heiser. See Proposed Order at 114. This presents a

conundrum—the Heiser figures apply to damages

awards under the federal cause of action. Because Israeli Plaintiffs prevail under Israeli law, that law determines their damages. See Thuneibat, 167 F. Supp.

3d at 47 (“Normally, damages would be calculated

pursuant to the law under which liability was found

. . . .”); Est. of Botvin, 873 F. Supp. 2d at 243 (same).

Indeed, they argued that Israeli—not local—law applies. Because Israeli Plaintiffs seemed to disregard

Israeli damages law in their motion, the Court later

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asked them to specify “[w]hether and in what amounts

Israeli law awards damages” for Rotem’s physical injuries and the emotional injuries of the Israeli family

members. Order at 2.

Israeli Plaintiffs answered the first part of that question. Israeli law does award damages for the suffered

injuries. See Show Cause Response at 18–20. But beyond saying that Israeli damages “are typically lower

than awards in the United States,” Israeli Plaintiffs

give no amounts. Id. at 20. Instead, they again urge

the Court to award the same amounts as provided in

the Heiser framework. 17 See id. at 21. This suggestion

ignores the Court’s instruction that Plaintiffs provide

more information on amounts under Israeli law.

To be sure, some judges in this district have, when

faced with imperfect information on foreign damages

law, defaulted to the Heiser framework when doing so

is “in the interests of justice.” Thuneibat, 167 F. Supp.

3d at 47. Those precedents persuade the Court that

the Heiser framework is appropriate for Rotem’s pain

and suffering, given that the Court is already applying American law to her situation. Recall that impact

with Hasouna’s car threw her into a glass wall at the

bus stop. See Rotem Decl. ¶ 5. Once the bystander

had shot Hasouna, Rotem felt pain in her back and

noticed a wound on her knee. See id. ¶ 13. Her knees

felt like they “were burning.” Id. At the hospital,

Rotem received eight stitches in one knee and learned

that she had sprained a ligament in her other knee.

17 Indeed, Israeli Plaintiffs’ requested figures, even in their

Show Cause Response, are equal to awards in the United States,

not lower as they suggest earlier in the Response.

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See id. ¶ 20. She was in shock and remembers vomiting while there. See id. ¶ 22. Once at her parents’

house, Rotem needed assistance because of her pain

to lift her baby from his crib and to nurse him while

sitting down. See id. ¶ 27. Rotem’s pain also prevented her from driving for at least a month and she

missed over two months of her internship as a drama

teacher. See id. ¶ 28. Rotem did not return to her preattack physical shape until “at least ten months”

later. See id. ¶ 60.

Like the other victims, Rotem suffered emotionally after the attack. She thought “constantly and obsessively” about it, id. ¶ 30, wondering what might have

occurred if her baby had been there, see id. ¶ 35.

Rotem’s feelings grew so intense that she attended

“psychotherapy” sessions, id. ¶ 43, and she struggled

to care for her child after the attack, see id. ¶ 47. She

suffers from nightmares in which she and her family

are involved in a terrorist attack. See id. ¶ 49. She is

afraid of the dark, see id. ¶ 51, and feels unsafe in her

own home, see id. ¶ 52. She “no longer feel[s] confident or safe” and does not know if she can overcome

her post-attack anxiety. Id. ¶ 63.

To compensate Rotem’s injuries, the Court will consult the Heiser amounts. Her physical injuries and

severe emotional trauma both suggest that applying

the Heiser standards serves the “interests of justice.”

Thuneibat, 167 F. Supp. 3d at 47.

Rotem seeks $5 million in pain and suffering. Courts

typically award that amount, however, to victims who

suffer substantial physical injuries from a terrorist attack. See Schertzman Cohen v. Iran, No. 17-cv-1214

(JEB), 2019 WL 3037868 at *6 (D.D.C. July 11, 2019).

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Victims suffering minor injuries “such as lacerations

and contusions caused by shrapnel, accompanied by

severe emotional damages” receive less. Id. (cleaned

up). Rotem’s physical injuries largely match that description; she had cuts on her knees and sprained a

ligament. For similar injuries, many courts award $2

million. See, e.g., Bova, 2020 WL 2838582, at *5

(awarding $2 million to victim of explosion for cuts on

his head and forearms and for the formation of a mass

on his leg). The Court recognizes, however, Rotem’s

heightened emotional trauma after the attack, including her worries about the safety of her child. Dr.

Strous says that she suffers from “moderate to severe”

post-traumatic stress disorder that will “affect her for

a long period of time.” Strous Expert Report on Rotem

Golan at 8–9, ECF No. 51-8. Based on that diagnosis,

the Court finds that Rotem was “minimally injured”

in the attack but “experienced some enduring physical

and emotional pain.” Bathiard, 2020 WL 1975672, at

*5. The Court will award her $3 million in pain and

suffering.

For the other Israeli Plaintiffs, however, the Court

cannot award damages. When faced with a defaulting

defendant, a plaintiff must prove the requested

amount of damages “by a reasonable estimate,”

Abedini, 422 F. Supp. 3d at 136, or to a “reasonable

certainty,” Sanchez v. Devashish Hop., LLC, 322

F.R.D. 32, 37 (D.D.C. 2017). And recall that when a

sovereign defaults, FSIA requires plaintiffs to establish their “right to relief by evidence satisfactory to the

court.” 28 U.S.C. § 1608(e). Under any of these formulations, the burden lies with Israeli Plaintiffs to prove

the amount of damages.

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They have not met that burden—they provide no estimate for damages allowable under the substantive

law that they admit governs their claims. See Proposed Order at 68–71. The Court gave Israeli Plaintiffs an opportunity to remedy that gap in their original filings and reminded Israeli Plaintiffs that the

Court can “insist on a complete presentation by counsel” on the substance of foreign law. See Order at 2

(quoting Fed. R. Civ. P. 44.1, advisory comm’s note to

1966 amendment).

The Show Cause Response makes clear that Israeli

Plaintiffs understood that Order. Indeed, their response clarified how far Israeli law “awards punitive

damages” for their injuries. Id. But for compensatory

damages, they simply reiterated their request for

Heiser figures. “This Court is [ ] disinclined to conduct

a detailed independent study of Israeli damages law”

when the Israeli Plaintiffs have not, even after prodding from the Court. Est. of Botvin, 873 F. Supp. 2d at

245.

No authority requires a different conclusion. Plaintiffs cite Leibovitch v. Syrian Arab Republic, 25 F.

Supp. 3d 1071, 1087–88 (N.D. Ill. 2014), where the

court awarded to Israeli plaintiffs amounts slightly

below the Heiser figures. The court based this departure on the proposition—also stated by Israeli Plaintiffs here—that Israel awards fewer damages than the

United States. See id. at 1087; Show Cause Response

at 20. That proposition, however, originates from another out-of-district decision which dealt with a nonFSIA case and which noted simply that the defendant

there had not contested the proposition about Israeli

law. See Goldberg v. UBS AG, 660 F. Supp. 2d 410,

423 (E.D.N.Y. 2009). The decision did not describe or

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explore in detail this facet of Israeli law. In short,

Plaintiffs’ arguments are based on non-precedential,

largely untested and unsupported claims about Israeli

law. This Court will not award millions of dollars in

damages against a foreign sovereign based on such

dubious out-of-circuit authority. Accord Est. of Botvin, 873 F. Supp. 2d at 245.

Israeli Plaintiffs also cite the D.C. Circuit’s opinion in

Fraenkel v. Islamic Republic of Iran, 892 F.3d 348

(D.C. Cir. 2018). There, the court overturned a damages award to an Israel plaintiff because the lower

court had improperly limited his award based on assumption-of-risk principles. See id. at 361. In doing

so, the Circuit noted that although Israeli law governed that plaintiff’s damages calculation, “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.” Id. at

358 (citing Thuneibat, 167 F. Supp. 3d at 47). Israeli

Plaintiffs say that this line from the Circuit requires

this Court to apply the Heiser framework.

The Court disagrees. Fraenkel teaches that, when facing a dearth of information about a substantive legal

question like assumption of risk, lower courts should

default to federal law. But that default does not apply

to damages amounts in general or to the Heiser framework in particular. Fraenkel says so. After analyzing

assumption of risk through the lens of federal law, the

Circuit affirmatively denied that lower courts must

adhere to the Heiser framework. See id. at 361 (“[T]he

District Court in this case was not required to follow

Heiser for the simple reason that Heiser is not controlling precedent.”). And the FSIA requires that plain-

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tiffs establish their right to relief “by evidence satisfactory to the court.” Id. (quoting 28 U.S.C. § 1608(e)).

Thus, district courts “invariably must exercise discretion in determining damages awards under the FSIA.”

Id.

So Fraenkel does not require the Court to default to

the Heiser framework or any other damages amount.

And Israeli Plaintiffs cannot rely on one sentence in

that opinion to avoid their burden on default judgment. The Fraenkel court specifically reiterated that

plaintiffs under the FSIA must establish their “right

to relief by evidence satisfactory to the court.” 28

U.S.C. § 1608(e). Simply put, the Court in its discretion—also recognized in Fraenkel—asked Israeli

Plaintiffs to provide satisfactory evidence to justify

the damages they seek. They failed to do so. The

Court will not independently remedy that failure and

will therefore deny the Israeli Plaintiffs’ request for

compensatory damages.

*

*

*

The Court pauses to note that, in distinguishing between Plaintiffs, it does not minimize or denigrate the

pain and suffering each Plaintiff has endured. No one

should experience the trauma that Plaintiffs undoubtedly experienced. The Court’s awards are driven by a

recognition that most—if not all—people eligible for

damages from a terrorist attack have suffered the unimaginable. Accord Selig, 2021 WL 5446870, at *23.

Nor, for that matter, does the Court doubt the suffering felt by those Plaintiffs not awarded damages here.

In the end, a court’s rulings must be grounded in the

law, not sympathy or instinct.

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E. Punitive Damages and Costs

Plaintiffs also seek punitive damages, which apply not

to compensate victims but to “punish outrageous behavior and deter such outrageous conduct in the future.” Kim v. Dem. People’s Repub. of Korea, 87 F.

Supp. 3d 286, 290 (D.D.C. 2015) (cleaned up). Four

factors are relevant in deciding the appropriate level

of punitive damages: “(1) the character of the defendants’ act, (2) the nature and extent of harm to the

plaintiffs that the defendants caused or intended to

cause, (3) the need for deterrence, and (4) the wealth

of the defendants.” Est. of Steinberg v. Islamic Repub.

of Iran, No. 17-cv-1910 (RCL) 2019 WL 6117722 at *9

(D.D.C. Nov. 18, 2019) (cleaned up).

These factors support an award of punitive damages

here. The States’ acts were heinous. Their acts were

intended to—and did—cause unconscionable pain and

suffering. Deterrence is necessary because, time and

again, courts in this district have been confronted

with families shattered by Iran- and Syria-backed terrorists. See, e.g., Wultz v. Islamic Repub. of Iran, 864

F. Supp. 2d 24, 42 (D.D.C. 2012) (awarding punitive

damages based on “the extreme reprehensibility of

Iran and Syria’s acts). Plaintiffs ask for $150 million

in punitive damages each for the Borochov family and

the Golan family. See Proposed Order at 96.

Plaintiffs’ request has some basis in precedent.

Courts in this district have awarded $150 million in

punitive damages to the family of an attack victim.

See, e.g., Est. of Steinberg, 2019 WL 6117722, at *10;

Est. of Hirshfeld, 330 F. Supp. 3d at 150; Gates v. Syrian Arab Repub., 508 F. Supp. 2d 53, 75 (D.D.C. 2008).

This flat-award approach promotes consistency and

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predictability in punitive damages, features that the

Supreme Court has endorsed. See Exxon Shipping Co.

v. Baker, 554 U.S. 471, 502 (2008). But a flat-award

method also “limits a judge’s discretion to tailor a punitive award appropriate to the magnitude of the underlying injury.” Abedini, 422 F. Supp. 3d at 142.

The details of the attacks here do not support such an

indiscriminate award of punitive damages. In other

cases in which courts awarded $150 million per family, the attacks killed members of the families. See

Est. of Hirshfeld, 330 F. Supp. 3d at 150 (Hamas attack killed eight Israeli students); Thuneibat, 167 F.

Supp. 3d at 54 (suicide bombers killed 60 people); Est.

of Steinberg, 2019 WL 6117722, at *10 (Hamas attack

killed six Israeli soldiers). In contrast, nobody died in

these attacks. The Court thus declines to award $150

million per family.

Instead, the Court will award punitive damages equal

to compensatory damages—$27.5 million. 18 Several

judges in this district have employed the same approach to punitive damages for FSIA cases. See, e.g.,

Hekmati v. Islamic Repub. of Iran, 278 F. Supp. 3d

145, 167 (D.D.C. 2017); Flanagan v. Islamic Repub. of

18 The Court awards no punitive damages to the Israeli Plain-

tiffs besides Rotem. Their Show Cause Response says that Israeli law awards punitive damages to the victims of terrorist attacks at an amount three times the award of compensatory damages. See Show Cause Response at 21. Because the Court

awards most Israeli Plaintiffs no compensatory damages, it has

no figure to multiply by three and thus cannot award punitive

damages. As for Rotem, she received the benefit of federal standards for her compensatory damages. Like other Plaintiffs subject

to those standards, the Court will award her punitive damages

in the same amount as her compensatory damages.

81a

Iran, 87 F. Supp. 3d 93, 124-25 (D.D.C. 2015); Moradi,

77 F. Supp. 3d at 73. This Court has awarded punitive

damages equal to compensatory ones to accommodate

the unique characteristics of a terrorist attack. See

Selig, 2021 WL 5446870, at *24–*25 (“This case is not

like those involving hundreds of decedents murdered

in a bombing. The deaths here, while no less tragic,

were fewer in number.” (cleaned up)).

This approach accounts for the character of the States’

acts, which though heinous did not lead to any victim’s

death. And a large award of $300 million “is not likely

to have a meaningful deterrent effect” when both

Syria and Iran face billions in punitive damages

awards. See Christie, 2020 WL 3606273, at *29. The

Court therefore sees no need for such a large award,

especially when setting punitive damages equal to

compensatory ones can more accurately account for

Plaintiffs’ suffering.

Thus, the Court awards punitive damages of $27.5

million, to be apportioned among Plaintiffs according

to their compensatory damages, for the reasons more

fully discussed in Selig, 2021 WL 5446870, at *23–*25

(apportioning punitive damages in this way).

Prejudgment Interest. Plaintiffs seek prejudgment interest. See Compl. ¶ 136(e). “[W]hether pre-judgment

interest is to be awarded is subject to the discretion of

the court and equitable considerations.” Motion Picture Ass’n of Am., Inc. v. Oman, 969 F.2d 1154, 1157

(D.C. Cir. 1992). “[T]he overarching tide of persuasive

precedent . . . plainly weighs against awarding prejudgment interest.” Akins v. Islamic Repub. of Iran,

No. CV 17-675 (BAH), 2021 WL 3021445, at *11

(D.D.C. July 16, 2021). This is because “[w]hen an

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award without pre-judgment interest fully compensates a plaintiff, an award of pre-judgment interest no

longer has the intended compensatory purpose and

should be denied.” Price v. Socialist People’s Libyan

Arab Jamahiriya, 384 F. Supp. 2d 120, 135 (D.D.C.

2005). The Court has carefully considered the pain

and suffering of the decedents and each Plaintiff, and

its awards are intended to be fully compensatory. Prejudgment interest is therefore improper.

Costs, Expenses, and Attorneys’ Fees. The last category of damages sought by Plaintiffs is their “costs

and expenses” and their “attorneys’ fees.” Compl.

¶ 136(c) and (d). But Plaintiffs cite no basis for the

award of these fees. See Kinyua v. Repub. of Sudan,

466 F. Supp. 3d 1, 13 (D.D.C. 2020) (“[T]he Court is

not aware of any statutory or other basis for the award

of attorney’s fees[.]”). More, “plaintiffs have not provided any information regarding the fees and costs

sought.” Aceto v. Islamic Repub. of Iran, No. CV 19464 (BAH), 2020 WL 619925, at *23 (D.D.C. Feb. 7,

2020) (denying plaintiffs’ request for “reasonable costs

and expenses” because “plaintiffs have not provided

any information regarding the fees and costs sought”)

(cleaned up). The Court therefore declines to award

any fees or expenses.

V. CONCLUSION

For these reasons, Plaintiffs’ Motion for Default Judgment will be granted in part and denied in part. A

separate Order will issue.

Dated: March 4, 2022

/s/ Trevor N. McFadden

TREVOR N. McFADDEN,

U.S.D.J.

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________

No. 22-7058

September Term, 2023

1:19-cv-02855-TNM

Filed On: April 25, 2024

Eli M Borochov, et al.,

Appellees

Shari Mayer Borochov, et al.,

Appellants

v.

Islamic Republic of Iran and Syrian Arab

Republic,

Appellees

BEFORE:

Srinivasan, Chief Judge; Henderson,

Millett, Pillard, Wilkins, Katsas, Rao,

Walker, Childs, Pan, and Garcia,

Circuit Judges

ORDER

Upon consideration of appellants’ petition for rehearing en banc, and the absence of a request by any member of the court for a vote, it is

ORDERED that the petition be denied.

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Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Daniel J. Reidy

Deputy Clerk

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APPENDIX D

28 U.S.C. § 1605A. Terrorism exception to the jurisdictional immunity of a foreign state

(a) IN GENERAL.—

(1) NO IMMUNITY.—A foreign state shall not be

immune from the jurisdiction of courts of the United

States or of the States in any case not otherwise covered by this chapter 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 or resources 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.

(2) CLAIM HEARD.—The court shall hear a claim

under this section if—

(A)(i)(I) the foreign state was designated as a

state sponsor of terrorism at the time the act described in paragraph (1) occurred, or was so designated as a result of such act, and, subject to subclause (II), either remains so designated when the

claim is filed under this section or was so designated within the 6-month period before the claim

is filed under this section; or

(II) in the case of an action that is refiled under this section by reason of section 1083(c)(2)(A)

of the National Defense Authorization Act for Fiscal Year 2008 or is filed under this section by reason of section 1083(c)(3) of that Act, the foreign

state was designated as a state sponsor of terrorism when the original action or the related action

86a

under section 1605(a)(7) (as in effect before the

enactment of this section) or section 589 of the

Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 (as contained in section 101(c) of division A of Public Law

104–208) was filed;

(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 employment; and

(iii) in a case in which the act occurred in the

foreign state against which the claim has been

brought, the claimant has afforded the foreign

state a reasonable opportunity to arbitrate the

claim in accordance with the accepted international rules of arbitration; or

(B) the act described in paragraph (1) is related to Case Number 1:00CV03110 (EGS) in the

United States District Court for the District of Columbia.

(b) LIMITATIONS.—An action may be brought or

maintained under this section if the action is commenced, or a related action was commenced under section 1605(a)(7) (before the date of the enactment of

this section) or section 589 of the Foreign Operations,

Export Financing, and Related Programs Appropria-

87a

tions Act, 1997 (as contained in section 101(c) of division A of Public Law 104–208) not later than the latter

of—

(1) 10 years after April 24, 1996; or

(2) 10 years after the date on which the cause

of action arose.

(c) PRIVATE RIGHT OF ACTION.—A foreign state

that is or was a state sponsor of terrorism as described

in subsection (a)(2)(A)(i), and any official, employee,

or agent of that foreign state while acting within the

scope of his or her office, employment, or agency, 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 employee’s

employment, or

(4) the legal representative of a person described in paragraph (1), (2), or (3),

for personal injury or death caused by acts described

in subsection (a)(1) of that foreign state, or of an official, employee, or agent of that foreign state, for which

the courts of the United States may maintain jurisdiction under this section for money damages. In any

such action, damages may include economic damages,

solatium, pain and suffering, and punitive damages.

In any such action, a foreign state shall be vicariously

liable for the acts of its officials, employees, or agents.

(d) ADDITIONAL DAMAGES.—After an action has

been brought under subsection (c), actions may also be

88a

brought for reasonably foreseeable property loss,

whether insured or uninsured, third party liability,

and loss claims under life and property insurance policies, by reason of the same acts on which the action

under subsection (c) is based.

(e) SPECIAL MASTERS.—

(1) IN GENERAL.—The courts of the United

States may appoint special masters to hear damage claims brought under this section.

(2) TRANSFER OF FUNDS.—The Attorney

General shall transfer, from funds available for

the program under section 1404C of the Victims of

Crime Act of 1984 (42 U.S.C. 10603c), 1 to the Administrator of the United States district court in

which any case is pending which has been brought

or maintained under this section such funds as

may be required to cover the costs of special masters appointed under paragraph (1). Any amount

paid in compensation to any such special master

shall constitute an item of court costs.

(f) APPEAL.—In an action brought under this section, appeals from orders not conclusively ending the

litigation may only be taken pursuant to section

1292(b) of this title.

(g) PROPERTY DISPOSITION.—

(1) IN GENERAL.—In every action filed in a

United States district court in which jurisdiction

is alleged under this section, the filing of a notice

of pending action pursuant to this section, to

which is attached a copy of the complaint filed in

the action, shall have the effect of establishing a

1 See References in Text note below.

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lien of lis pendens upon any real property or tangible personal property that is—

(A) subject to attachment in aid of execution, or execution, under section 1610;

and

(B) located within that judicial district;

(C) titled in the name of any defendant,

or titled in the name of any entity controlled

by any defendant if such notice contains a

statement listing such controlled entity.

(2) NOTICE.—A notice of pending action pursuant to this section shall be filed by the clerk of

the district court in the same manner as any pending action and shall be indexed by listing as defendants all named defendants and all entities

listed as controlled by any defendant.

(3) ENFORCEABILITY.—Liens established by

reason of this subsection shall be enforceable as

provided in chapter 111 of this title.

(h) DEFINITIONS.—For purposes of this section—

(1) the term ‘‘aircraft sabotage’’ has the

meaning given that term in Article 1 of the Convention for the Suppression of Unlawful Acts

Against the Safety of Civil Aviation;

(2) the term ‘‘hostage taking’’ has the meaning given that term in Article 1 of the International Convention Against the Taking of Hostages;

(3) the term ‘‘material support or resources’’

has the meaning given that term in section 2339A

of title 18;

90a

(4) the term ‘‘armed forces’’ has the meaning

given that term in section 101 of title 10;

(5) the term ‘‘national of the United States’’

has the meaning given that term in section

101(a)(22) of the Immigration and Nationality Act

(8 U.S.C. 1101(a)(22));

(6) the term ‘‘state sponsor of terrorism’’

means a country the government of which the Secretary of State has determined, for purposes of

section 6(j) of the Export Administration Act of

1

1979 (50 U.S.C. App. 2405(j)), section 620A of the

Foreign Assistance Act of 1961 (22 U.S.C. 2371),

section 40 of the Arms Export Control Act (22

U.S.C. 2780), or any other provision of law, is a

government that has repeatedly provided support

for acts of international terrorism; and

(7) the terms ‘‘torture’’ and ‘‘extrajudicial

killing’’ have the meaning given those terms in

section 3 of the Torture Victim Protection Act of

1991 (28 U.S.C. 1350 note).