Amicus Curiae Brief — Shari Mayer Borochov, et al., Petitioners v. Islamic Republic of Iran, et al.

No. 24-277

In the

Supreme Court of the United States

SHARI MAYER BOROCHOV, et al.,

Petitioners,

v.

ISLAMIC REPUBLIC OF IRAN, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of A ppeals for the District of Columbia Circuit

BRIEF OF AMICI CURIAE

U.S. SERVICEMEMBERS WHO HAVE BEEN

INJURED IN TERRORIST ATTACKS PERPETRATED

BY STATE SPONSORS OF TERRORISM

IN SUPPORT OF PETITIONERS

Peter Raven-Hansen

George Washington

University Law School

Burns 411

720 20th Street, NW

Washington, DC 20052

Steven R. Perles

Counsel of Record

Perles Law Firm, PC

816 Connecticut Avenue, NW,

12th Floor

Washington, DC 20006

(202) 955-9055

sperles@perleslaw.com

Counsel for Amici Curiae

October 10, 2024

130526

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

BRIEF OF AMICI CURIAE IN SUPPORT

OF PETITIONERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The Question Presented Is Important

and Warrants This Court’s Immediate

Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. This Court Should Grant Certiorari and

Reverse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. In the Alternative, This Court Should

Ca l l for the View s of the Sol icit or

General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Borochov v. Islamic Republic of Iran,

94 F.4th 1053 (D.C. Cir. 2024) . . . . . . . . . . . . 3, 4, 9, 10

Cabrera v. Islamic Republic of Iran,

CA No. 19-3835 (JDB), 2023 U.S. Dist.

LEXIS 14874 (January 27, D.D.C. 2023) . . . . . 4, 9, 10

Cohen v. Islamic Republic of Iran,

238 F. Supp. 3d 71 (D.D.C. 2017) . . . . . . . . . . . . . . . . 11

Doe v. Constant,

No. 04 Civ. 10108 (SHS), 2006 U.S. Dist.

LEXIS 101961 (S.D.N.Y. October 24, 2006) . . . . . . . 10

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Gill v. Islamic Republic of Iran,

249 F. Supp. 3d 88 (D.D.C. 2017) . . . . . . . . . . . . . . . . 10

Han Kim v. Democratic People’s Republic of Korea,

774 F.3d 1044 (D.C. Cir. 2014) . . . . . . . . . . . . . . . . . . . 9

Hansen v. Islamic Republic of Iran,

2024 U.S. Dist. LEXIS 106793,

No. 22-cv-477 (DLF) (D.D.C. June 17, 2024) . . . . . . . 7

Karcher v. Islamic Republic of Iran,

396 F. Supp. 3d 12 (D.D.C. 2019) . . . . . . . . . 4, 5, 6, 7, 8

iii

Cited Authorities

Page

King v. Burwell,

576 U.S. 473 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Lee v. Islamic Republic of Iran,

518 F. Supp. 3d 475 (D.D.C. 2021) . . . . . . . . . . . . . 5, 11

Price v. Socialist People’s Libyan Arab

Jamahiriya,

294 F.3d 82 (D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . 9

Roberts v. Islamic Republic of Iran,

581 F. Supp. 3d 152 (D.D.C. 2022) . . . . . . . . . . . . . . . 10

Van Beneden v. Al-Sanusi,

709 F.3d 1165 (D.C. Cir. 2013) . . . . . . . . . . . . . . . . . . 10

Warfaa v. Ali,

33 F. Supp. 3d 653 (E.D. Va 2014) . . . . . . . . . . . . . . . 10

Statutes, Rules and Regulations

28 U.S.C. § 1605A . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4, 5

28 U.S.C. § 1605A(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

28 U.S.C. § 1608(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

H.R. Rep. No. 104–383 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iv

Cited Authorities

Page

The Root Cause Of October 7: Iran’s Regime,

Hoover Inst itut ion websit e, Resea rch,

ht t p s: // w w w.hoover.org /re se a rch /root cause-october-7-irans-regime (last visited

Oct. 9, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1

BRIEF OF AMICI CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE1

Amici are U.S. servicemembers who have been

injured in terrorist attacks perpetrated by state sponsors

of terrorism. Each of the amici are plaintiffs in suits

against Iran brought under the “Terrorism Exception”

to the Foreign Sovereign Immunities Act (“FSIA”), 28

U.S.C. § 1605A. They have a strong interest in ensuring

that the terrorism exception to the FSIA is interpreted

broadly to allow victims of terrorism to seek justice and

hold state sponsors accountable.

In these cases, amici have repeatedly established “by

evidence satisfactory to the court,” 28 U.S.C. § 1608(e),

that the Islamic Republic of Iran (“Iran”) is responsible

for directing these attacks on U.S. forces with the specific

aim of killing large numbers of Americans. Very often

Americans did die—but in a number of cases, including

those brought by amici, the victims of a given Iraniansponsored terrorist attack managed to survive, often with

horrific injuries.

Indeed, many of the amici have lost limbs, the use of

other body parts, and physical senses, suffered traumatic

brain injuries and profound mental and emotional harm,

and received prognoses of chronic pain or even shortened

1. No counsel for any party authored this brief in whole or in

part, and no person other than the amici or their counsel made a

monetary contribution intended to fund the preparation or submission of this brief. The parties were timely notified of this filing

at least ten days in advance.

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life spans. Many of the amici have survived attacks

with wounds that would have been fatal but for recent

improvements in battlefield medicine. It would be a tragic

irony if Iran, in its terror campaign against U.S. forces,

was a beneficiary of these medical advances.

This case concerns Congress’s conjunctive statutory

effort to provide civil remedies not only for the “injury

or death” of Americans “caused by [a state sponsor of

terrorism’s] act of . . . extrajudicial killing,” but also

for “injury or death” “caused by . . . [its] provision of

material support or resources for such an act. . . .”

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

uniformly interpreted the plain statutory text to reach

any injuries proximately caused by the statute’s actus

reus—here providing material support for an intended

extrajudicial killing (as opposed to performing the act

of killing)—until the decision of the three-judge panel

below defeated the unmistakable congressional purpose

by reading the statute to apply only when the supported

attack succeeds in an extrajudicial killing. That reading

leaves the surviving amici without any remedy against

the state sponsor who supported the attacks against

them intending their deaths. Many similarly situated

U.S. service personnel have been—and will be—victims

of terrorist attacks carried out at the behest or with the

assistance of state-sponsors of terrorism. Amici have a

strong interest in ensuring that they and future injured

are able to pursue their valid claims. Accordingly, amici

urges that the petition be granted, and the judgment

below reversed.

Amici are writing to the Court because the decision

by the three-judge panel below would eliminate their sole

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opportunity to hold Iran responsible for the injuries it

has inflicted on them and many other former and future

service members. That narrow view of the statute’s

jurisdiction, taken by only two of the many courts to have

considered the issue, would immunize Iran for its role in

supporting terrorist attacks intended to kill Americans

but which the victims survived, usually with grievous

injuries. That is not and cannot be the intent or purpose

of § 1605A’s Terrorism Exception.

SUMMARY OF ARGUMENT

The decision in Borochov v. Islamic Republic of Iran,

which limited the terrorism exception to the FSIA to

only those cases where a death occurred in the attack,

contravenes explicit Congressional intent to hold statesponsors of terrorism liable for attacks on U.S. citizens

and overturns the prior consensus among well-reasoned

district court decisions which allowed plaintiffs who only

suffered injuries to pursue relief under the FSIA. These

attacks launched by Iran, or those of its proxies, leave no

doubt that they were intended to kill Americans. It would

make little sense for Congress to allow jurisdiction for

providing material support for an act that kills but not for

providing the same support for an act that fell just short of

killing due to miracles of medical innovation. This Court

should grant certiorari to overrule the mistaken statutory

reading of the lower court. Such an approach would align

with Congress’s purposes of deterring terrorism and

providing accountability.

This question is important not only to petitioners and

amici, but to every U.S. citizen who has been injured

or may in the future be injured by an act of terrorism

involving a state-sponsor of terrorism.

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ARGUMENT

I.

The Question Presented Is Important and Warrants

This Court’s Immediate Review

A narrow interpretation of the FSIA will limit the

scope of the terrorism exception and disproportionally

impact U.S. service members and other citizens who

suffer horrendous injuries, but mange to survive. The

Borochov panel overturned 2 a widely-based-consensus

established by numerous district court opinions which

found that § 1605A reaches a state sponsor of terrorism

both “when a plaintiff ’s ‘personal injury or death . . . was

caused by an act of . . . extrajudicial killing;’” and “when

that ‘personal injury or death . . . was caused by . . . the

provision of material support or resources for such an

act.’” Cabrera v. Islamic Republic of Iran, CA No. 19-3835

(JDB), 2023 U.S. Dist. LEXIS 14874, at *13-14 (January

27, D.D.C. 2023) (quoting 28 U.S.C. § 1605A(a)(1)); Karcher

v. Islamic Republic of Iran, 396 F. Supp. 3d 12, 57 (D.D.C.

2019) (“Nothing on the face of Section 1605A(a)(1) requires

that the material support or resources for an intended

extrajudicial killing actually result in someone’s death, as

long as the victim represented in the case was injured.”).

Iran’s campaign of terrorism against U.S. citizens

in the Middle East is likely to continue, and many more

Americans could have their remedies erased if Borochov

is allowed to stand. Iran provided material support for

each of the terrorist attacks in which amici were injured

and did so with the intent to kill Americans. For example,

2. Borochov v. Islamic Republic of Iran, 94 F.4th 1053, 1061

(D.C. Cir. 2024).

5

many of the attacks in Karcher v. Islamic Republic of Iran

involved a powerful roadside bomb called an explosively

formed penetrator (“EFP”) that courts have found

indicate an intent to kill:

EFPs were specifically designed to punch

through armored vehicles. Iran’s intention

is fur ther demonstrated by angling the

weapon in order to overcome Rhino [EFP

countermeasure] devices. Doing so ensured

that the EFP would hit the crew compartment,

rather than the engine. Because these weapons

deliver deadly force, the Court presumes that

Iran’s intent was to kill a vehicle’s occupants.

In other words, the goal was to kill people, not

just disable vehicles. Moreover, Iran wanted

EFPs to be used against the U.S. military,

which Iran saw as a threat to its objectives.

396 F. Supp. 3d at 56 (emphasis added, record citations

omitted). As a result, the Karcher court concluded:

“Deploying an EFP represents a ‘deliberated’ attempt to

kill someone.” Id. at 58.

Another court noted “expert testimony that EFPs

were constantly retooled to overcome U.S. defenses that

attempted to make EFPs less deadly, indicating that

EFPs were intentionally designed to inflict maximum

harm on their targets.” Lee v. Islamic Republic of Iran,

518 F. Supp. 3d 475, 492 (D.D.C. 2021). All of these cases

explicitly permitted § 1605A claims premised on material

support for attempted killings that proximately caused

injuries.

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These courts and many others have also found that

Iran provided material support to orchestrate a campaign

of murderous terrorism against U.S. forces through (1)

the IRGC and the IRGC’s foreign directorate, the Qods

Force (“IRGC- QF”); (2) its Lebanese proxy, Hezbollah;

and (3) its Iraqi Shi’a proxies:

[ T]he IRG C - Q F spea rheaded a closely

coordinated campaign to equip the Shi’a

militia for proxy warfare. That campaign is

well attested to in U.S. Government documents.

In 2007, the Qods Force earned its Treasury

Department designation under E.O. 13224

in part because it “provides lethal support

in the form of weapons, training, funding,

and guidance to select groups of Iraqi Shi’a

militants who target and kill Coalition and Iraqi

forces and innocent Iraqi civilians.” The State

Department found that in 2011,

Iran was responsible for the increase

of lethal attacks on U.S. forces [in

Iraq] and provided militants with

the capability to assemble explosives

designed to defeat armored vehicles.

T he IRG C - Q F, i n concer t w ith

L eb a ne s e H i z b a l l a h , pr ov ide d

training outside of Iraq as well

as advisors inside Iraq for Shia

militants in the construction and use

of sophisticated improvised explosive

device technology and other advanced

weaponry.

Karcher, 396 F. Supp. 3d at 24 (record citations omitted).

7

In Hansen v. Islamic Republic of Iran, the plaintiffs

suffered injuries as a result of the January 8, 2020 Iranian

ballistic missile bombardment wherein it “fired at least

eleven ballistic missiles at the Ayn al-Asad airbase”

housing hundreds of U.S. service members in an attempt

to kill amici. 2024 U.S. Dist. LEXIS 106793, No. 22-cv477 (DLF), at *2 (D.D.C. June 17, 2024). Living quarters,

a dining facility, gym and other living accommodations

were destroyed in the attack. Fortunately, no U.S. service

members were killed in the terrorist attack, but the blast

waves caused significant concussive injuries for hundreds

of U.S. service. “Servicemembers reported perforated

eardrums, cracked teeth, and bleeding eyes, among

other things . . . [m]any servicemembers—including all

the plaintiffs in this case—were subsequently diagnosed

with traumatic brain injuries.” Id. at *4. These service

members have been unable to continue their service,

have lost their ability to provide for their families, and in

one instance committed suicide as a result of the injuries

sustained. Id. at *5.

Miraculously surviving a terrorist attack is not an

indicator that the attack was not meant to kill. Rather,

survival was often a result of improved battlefield medicine

which helped victims survive wounds that likely would have

been fatal even a few years earlier. As a surgeon expert,

Dr. Shean Phelps, the former Senior Flight Surgeon

for the Army’s Special Forces in Iraq and Afghanistan,

testified in Karcher v. Islamic Republic of Iran, the U.S.

military reduced the “died-of-wounds rate tremendously”

during its time in Iraq. Crucial techniques included faster

response times and better containment of blood loss. See

396 F. Supp. 3d at 61-63. However, although the died-ofwounds rate dropped in Iraq during the 2004-2011 period,

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the survivable wounds from EFP were grievous. For

example, Karcher plaintiff Staff Sergeant (Ret.) Robert

Canine was in a vehicle hit by an EFP in Iraq on May 17,

2009. An EFP struck his vehicle on the passenger side,

where he was seated. The “slug” (the EFP’s projectile,

a wad of copper weighing several pounds and traveling

thousands of miles per hour) entered the vehicle and

struck Mr. Canine’s feet. See id. at 43. No one died, but

the EFP slug ripped off his right leg and part of his left

foot and caused other severe injuries. Id. Mr. Canine came

close to dying from blood loss. Id. He was evacuated to a

U.S. Air Force hospital in Balad, Iraq, where he received

massive transfusions of blood and plasma. Id. The quick

response process and blood transfusions saved his life.

U.S. service personnel, U.S. State Department

personnel, other U.S. government employees and agents,

and other citizens spend significant amounts of time

overseas for business or personal reasons, and they

deserve the right to pursue claims under the FSIA should

they suffer from a terrorist attack. The October 7, 2023

terrorist attacks in Israel, leading to significant U.S.

casualties, is just the latest reminder that the scourge

of state-sponsored terrorism3 will continue to impact

innocent Americans for the foreseeable future. Thus, the

Court should recognize that the question presented is

important to more than just the parties before this Court;

it is important to every past and future American victim

of terrorism who ultimately pursues justice through the

courts. And given the role that Congress intended for this

3. The Root Cause Of October 7: Iran’s Regime, Hoover

Institution website, Research, https://www.hoover.org/research/

root-cause-october-7-irans-regime (last visited Oct. 9, 2024).

9

regime to play in deterring acts of terrorism, the question

presented is also important to the national interest as a

whole.

II. This Court Should Grant Certiorari and Reverse

Prior to Borochov, the majority of district courts to

consider the issue had ruled that attempted extrajudicial

killings constituted extrajudicial killings; “most cases

addressing this issue have reached consistent conclusions

about the scope of the terrorism exception. . . .” Cabrera

v. Islamic Republic of Iran, CA No. 19-3835 (JDB), 2023

U.S. Dist. LEXIS 14874, at *19-20 (January 27, D.D.C.

2023). This result corresponds with Congress’s legislative

purposes in enacting the relevant statute. “Congress

enacted the terrorism exception expressly to bring state

sponsors of terrorism . . . account for their repressive

practices.” Han Kim v. Democratic People’s Republic of

Korea, 774 F.3d 1044, 1048 (D.C. Cir. 2014). Congress’s

“very purpose” for the FSIA terrorism exception was

to “give American citizens an important economic and

financial weapon” and to “compensat[e] the victims

of terrorism, and in so doing to punish foreign states

who have committed or sponsored such acts and deter

them from doing so in the future.” Han Kim, 774 F.3d

at 1048 (citing Price v. Socialist People’s Libyan Arab

Jamahiriya, 294 F.3d 82, 88–89 (D.C. Cir. 2002) (quoting

H.R. Rep. No. 104–383, at 62)) (emphasis added).

Yet in Borochov v. Islamic Republic of Iran, the threejudge panel ruled that the injured plaintiffs could not sue

Iran because “[t]he Golans’ injuries were not ‘caused by

an act of * * * extrajudicial killing’ because the terrorist

attack that injured them did not kill anyone.” 94 F.4th

10

1053, 1061 (D.C. Cir. 2024). The panel looked at the wrong

cause. The Golans’ injuries were caused by the material

support Iran provided for the attackers intending the

Golans’ deaths.

This outcome conflicts with Congress’s goals in

enacting the statute. “Congress passed both statutes

[TVPA and FSIA terrorism exception] in order to aid

victims in their pursuit to prosecute claims of particular

types of torture and terrorism against foreign states.”

Gill v. Islamic Republic of Iran, 249 F. Supp. 3d 88, 98

(D.D.C. 2017). Thus, the FSIA should allow a suit for an

“attempted extrajudicial killing, even if no one died as a

result of that attempt.” Gill v. Islamic Republic of Iran,

249 F. Supp. 3d 88, 99 (citing Warfaa v. Ali, 33 F. Supp.

3d 653, 666 (E.D. Va 2014) and Doe v. Constant, No. 04

Civ. 10108 (SHS), 2006 U.S. Dist. LEXIS 101961 at *13 n.3

(S.D.N.Y. October 24, 2006)). This is so, “given the Act’s

‘text and purpose,’ its ‘ambiguities [should be interpreted]

flexibly and capaciously. . . .’” Id. at 99 (quoting Van

Beneden v. Al-Sanusi, 709 F.3d 1165, 1167 & n.4 (D.C. Cir.

2013)). Many other courts also found that “the process of

committing an extrajudicial killing does not imply that

death results—meaning that an attempted extrajudicial

killing could constitute an ‘act of extrajudicial killing’

based upon Congress’s intent to ‘lighten the jurisdictional

burdens borne by victims of terrorism seeking judicial

redress. . . .’” Roberts v. Islamic Republic of Iran, 581

F. Supp. 3d 152, 170 (D.D.C. 2022) (quoting Van Beneden,

709 F.3d at 1167 & n.4); Cabrera, CA No. 19-3835 (JDB),

2023 U.S. Dist. LEXIS 14874, at *5 (“Every judge in this

District to consider this issue prior to 2022—and several

who addressed it in the past year—has concluded that the

material-support prong of the terrorism exception extends

11

to injuries caused by a defendant nation’s material support

for a nonfatal, attempted extrajudicial killing.”); Lee v.

Islamic Republic of Iran, 518 F. Supp. 3d 475, 491 (D.D.C.

2021); Cohen v. Islamic Republic of Iran, 238 F. Supp. 3d

71, 81 (D.D.C. 2017) (“It is not necessary, however, for one

of the plaintiffs to have died in the attack in order for the

state-sponsor-of-terrorism exception to apply.”).

The Court has repeatedly emphasized the importance

of adher ing to cong ressional intent in statutor y

interpretation. In King v. Burwell, 576 U.S. 473 (2015),

the Court stated that it must interpret statutes “in a way

that is consistent with the Legislature’s intent.” Similarly,

in FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120 (2000), the Court emphasized the importance of

considering the overall statutory scheme and Congress’s

policy objectives. These principles support a broader

interpretation of the FSIA’s terrorism exception that

aligns with Congress’s intent to hold state-sponsors of

terrorism accountable.

III. In the Alternative, This Court Should Call for the

Views of the Solicitor General

If the Court is uncertain about the virtues of plenary

review, it would be appropriate to call for the views of

the Solicitor General. The United States has previously

weighed in on related matters. For example, in Opati

v. Republic of Sudan, No. 17-1268, this Court invited

the Solicitor General to file a brief at the petition stage

regarding whether punitive damages were available

against state sponsors of terrorism in cases based on

acts occurring before the punitive damages provision

was enacted—and the government recommended that the

12

Court hear the case. And at the merits stage, the United

States filed a brief supporting the plaintiffs, explaining

that the government has “a strong interest in opposing

state-sponsored terrorism, and in supporting appropriate

recoveries for victims,” while also managing “[l]itigation

against foreign states in United States courts,” which

“can have significant foreign affairs implications for the

United States.” U.S. Opati Br. 1. Those same interests

are in play here where those disproportionately impacted

by the decision below are US service personnel, and it

would make sense for the Court to consider seeking the

government’s views about whether the D.C. Circuit’s

ruling balances them appropriately.

CONCLUSION

The petition should be granted.

Respectfully submitted,

Peter Raven-Hansen

George Washington

University Law School

Burns 411

720 20th Street, NW

Washington, DC 20052

Steven R. Perles

Counsel of Record

Perles Law Firm, PC

816 Connecticut Avenue, NW,

12th Floor

Washington, DC 20006

(202) 955-9055

sperles@perleslaw.com

Counsel for Amici Curiae

October 10, 2024