COLLEEN KOLLAR-KOTELLY, United States District Judge.
This case arises from the death of an American, Keith Matthew Maupin, in Iraq sometime between 2004 and 2008. Plaintiffs LeaAnn Cottrell and Stephen Spencer
Defendants have not answered or otherwise participated in this litigation. The case accordingly proceeded in a default setting. The Court did not require a liability hearing, as this case involves the same issue as was presented in Foley v. Syrian Arab Republic, No. 11-cv-699 (D.D.C). In that case, following a liability hearing, this Court concluded that Syria and the Syrian Military Intelligence were liable for the death of Maupin, and provided damages to his estate as well as to his parents. Foley, No. 11-cv-699, ECF No. 76; see also generally Foley v. Syrian Republic, 249 F.Supp.3d 186 (D.D.C. 2017). Adopting the factual findings and conclusions of law from Foley, in a previous Memorandum Opinion, the Court determined that Plaintiffs established their claims by evidence satisfactory to the Court, and accordingly granted default judgment against Defendants as to liability. March 20, 2019 Memorandum Opinion and Order, ECF No. 27. The Court's findings of fact and conclusions of law in that Memorandum Opinion and Order are incorporated into this Memorandum Opinion as though stated in full. The Court referred the issue of damages to a Special Master.
Upon consideration of the pleadings,
Plaintiffs filed this lawsuit on June 20, 2017. Compl., ECF No. 1. On January 2, 2019, Plaintiffs moved for an entry of default, contending that service had been completed as to Defendants Syria and Syrian Military Intelligence under 28 U.S.C. § 1603(a)(4), and that Defendants had failed to answer or otherwise respond within 60 days. ECF No. 23. On January 3, 2019, the Court granted Plaintiffs' motion. January 3, 2019 Minute Order. The Court found that Plaintiffs had accomplished service by conveying the service documents to the Syrian Ministry of Foreign Affairs by way of the Czech Ministry of Foreign Affairs. Accordingly, the Court ordered the Clerk of the Court to enter a default as to Defendants Syria and the Syrian Military Intelligence pursuant to Fed. R. Civ. P. 55(a). Id. The Clerk of the Court entered default on January 3, 2019. ECF No. 24.
The Court was not required to hold a liability hearing in this matter as this case involves the same issue as was presented in Foley v. Syrian Arab Republic, No. 11-cv-699 (D.D.C). The Court took judicial notice and adopted the relevant findings of fact and conclusions of law from Foley as to Defendants' liability.
Special Master Balaran reviewed the record in this case upon which the Court based its liability findings, and also received additional evidence. On September 18, 2019, Special Master Balaran filed his damages report. ECF No. 32. The Special Master recommended that each of the three Plaintiffs receive an enhancement of $1 million in addition to the $2.5 million baseline award set out in Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (D.D.C. 2006), for a total of $3.5 million each in compensatory damages for loss of solatium. Id. at 16.
Following the Special Master's Report, Plaintiffs filed a Motion asking the Court to adopt the Special Master's report in whole. ECF No. 33. Plaintiffs stated that they have no objections to the Special Master's fact findings or conclusions of law. The Court has reviewed the Special Master's Report and agrees with the Special Master's fact findings and conclusions of law. Accordingly, the Court ADOPTS the Special's Masters Report in full.
For the foregoing reasons, the Court adopts and affirms the Special Master's damages report, including the conclusions and analysis. The Court will order that Plaintiffs be granted damage awards in the amounts specified by the Special Master. Default judgment having now been entered for Plaintiffs, this case will be dismissed. An appropriate order accompanies this Memorandum Opinion.
This action is brought pursuant to 28 U.S.C. § 1605A by Kent Micah Maupin, Lee Ann Cottrell, and Stephen Spencer — the biological brother and half-siblings, respectively, of Staff Sergeant Keith Matthew Maupin. SSgt. Maupin ("Matt") was murdered by members of the Zarqawi Terrorist Organization ("ZTO") sometime between 2004 and 2008. Claimants each seek solatium damages for the mental anguish, bereavement, and grief they suffered as a result of the kidnapping, torture, and execution of their brother. They also ask that interest be added to any awarded damages.
In accordance with the Administrative Plan Governing Special Masters, Federal Rule of Civil Procedure 53, and this Court's Order dated May 7, 2019, the Special Master has reviewed testimonial and documentary evidence in addition to Plaintiffs' Motion and Memorandum for Damage Awards with Points and Authorities in Support ("Damages Memorandum"), to assist in determining any damages to which Plaintiffs may be entitled.
The facts surrounding Matt's murder have been painstakingly detailed in this Court's opinion in Foley v. Syrian Arab
On April 9, 2004, five vehicles of the 724th Transportation Company escorted a convoy of 17 fuel trucks and two bobtail tractors operated by KBR, an American defense contractor. Matt was a member of that convoy when it was ambushed by members of the ZTO using rocket-propelled grenades and small-arms fire. Matt was kidnapped by the insurgents and remained missing until March 20, 2008, when soldiers from 1st Battalion, 21st Infantry Regiment unearthed fragments of his remains — consisting of 308 grams of skeletal matter in a region 10 to 15 miles northwest of Baghdad. See http://thefallen.militarytimes.com/army-staff-sgt-keith-mmaupin/3467430 (last visited June 4, 2019).
Approximately one week after Matt was captured, the Arab television network Al-Jazeera aired a video showing Matt sitting on the floor surrounded by five masked men holding automatic rifles. A second video purporting to capture Matt's execution was broadcast two months later. Four years passed from the time Plaintiffs first learned of Matt's abduction to the time they were informed their brother had died.
On April 8, 2011, an action was filed by the estates and family members of SSgt. Keith Matthew Maupin, Laurence Michael Foley, Sr., and Private First Class Kristian Menchaca against the Syrian Arab Republic and the Syrian Military Intelligence (together "Syria"). Case No. 11-00699 (CKK). ECF No. 1. Plaintiffs alleged that the three deceased Americans were murdered by the ZTO with the aid and material support of Syria. Id. On December 21, 2017, this Court found defendants liable, adopted the Special Master's corrected recommendations, ECF No. 88, and, on March 15, 2019, granted Plaintiffs' Motion to Enforce Judgment. ECF No. 101.
On June 20, 2017, Plaintiffs filed the complaint in the underlying action, along with a Notice of Related Case. ECF Nos. 1 and 2. A summons issued to the Defendants was verified as executed by the Clerk of the Court on December 12, 2018. ECF No. 21. Defendants failed to respond, and this Court entered a default judgment on March 20, 2019, ordering Plaintiffs to submit evidence of damages by April 22, 2019. ECF Nos. 26 and 27. On May 7, 2019, the Court appointed the undersigned to "hear[ ] damages evidence and mak[e] recommended findings of fact and conclusions of law as to each Plaintiff's entitlement to damages, including the availability of causes of action for each Plaintiff." ECF No. 31. In accordance with this mandate, the Special Master has reviewed evidence supplied by the Plaintiffs, including deposition transcripts and exhibits, and offers the following synopsis of Plaintiffs' testimony and recommendations.
Kent Micah ("Micah") Maupin's testimony was elicited by deposition taken on April 12, 2019 ("MM-DT"). Micah was born in Ohio on March 14, 1985 to Carolyn and Keith Maupin. MM-DT, at 6 and Ex. A. Matt, Micah's biological brother, was born on July 13, 1983. Id. at 7. Their parents divorced when Micah was approximately three or four years old, and he and Matt resided with their mother, Carolyn, id. at 8-9, and her two children from a previous marriage, Lee Ann and Stephen. Id. at 10.
Micah describes his relationship with Matt as "really strong." MM-DT, at 13. The brothers "did just about everything together," including riding bikes and playing football, baseball, and video games. Id.
Matt enlisted in the military while in his last year of high school. MM-DT, at 16. After graduation, he joined the Army Reserves and reported for "drill one weekend a month, two weeks a year," while pursuing a degree in aerospace engineering at the University of Cincinnati. Id. at 16-17.
When Matt deployed to Iraq in 2004, MM-DT, at 18, Micah and his parents accompanied him to the airport; they "were all nervous" and "gave him hugs, told him we loved him, and you know, said our goodbyes and watched him walk on the plane and fly off." Id. at 19.
Micah "didn't really hear from [Matt] after that." At one point, Micah was informed that Matt and his fellow soldiers, while traveling as part of a convoy in Iraq, were ambushed and captured. Id. at 20. Micah, who had enlisted in the Marine Corps in 2003, id. at 18, was stationed in Pensacola, Florida when his command notified him that "something happened" to Matt. Id. at 21. He immediately drove to Cincinnati to be with his family. Id. His mother was "devastated." Id. at 22. The ordeal was "a dream, and we were going to wake up from it." Id. A "couple days after," the Army informed the family that Matt "was captured by terrorists" and listed as "missing." Id. at 23.
Micah recalls watching the first of the two videos broadcast by Al Jazeera, showing "eight to ten people in masks holding up guns. Matt was sitting down with his hands tied and in his camouflage uniform," and "stated his name, gave some information." MM-DT, at 24-25. While "it was great knowing that [Matt] was alive," Micah "was terrified." Id. He did not view the second video, but was told it "was a dark grainy video of a — someone in uniform with their back facing the camera ... and someone in uniform getting executed." Id. at 25-26. The terrorists identified that person as Matt. Id. at 26.
In March 2008, almost four years later, the family learned that Matt's remains had been uncovered. Id.
While stationed at the Marine Corps Air Station in Miramar, Florida, Micah received a voicemail message from an unidentified party expressing sympathy. MM-DT, at 32. Micah immediately feared the condolences were for his brother. Id. Micah's command confirmed "they'd found Matt's remains and — that he was dead." Id. Micah "couldn't believe it. I mean, I — we had hoped this whole time. And now — and now it was final. I mean, like, the journey was over. Like, there's nothing else that we can do for him now." Id. "I couldn't hold it in, and I started to cry." Id. at 33.
Micah describes the next four years — from the time he first learned of his Matt's abduction to the time he received confirmation of his death — as "a struggle," not knowing "what was going on, if he was still alive, if he wasn't." MM-DT, at 27. He attempted to cope by "shut[ting] off everything." Id. "I didn't want to feel what I was feeling. And I wanted to just — I didn't want to forget it, but I didn't want to feel it." Id. at 28. Micah attempted to alleviate his distress by devoting himself to his military duties and by working with the Yellow
Admittedly not a demonstrably emotional person, Micah concedes having difficulty maintaining his composure during family holidays, when he realizes Matt will never be an uncle to Micah's daughter or that Micah will "never know what [Matt's] going to be like now." MM-DT, at 31.
Matt's remains were flown to Dover and then to Pennsylvania, where Micah "had the unique honor and privilege to escort him back to Cincinnati." MM-DT, at 33. Micah admits "it was one of the hardest things I've ever done. But I'm glad I did it. I wouldn't have had anybody else do it." Id. at 34.
Micah recalls how his half-siblings, Lee Ann and Stephen, were equally devastated by Matt's loss. He believes no member of his family will ever "truly get over it." MM-DT, at 33.
Lee Ann Cottrell's testimony was elicited by deposition taken on April 15, 2019. (LAC-DT"). Lee Ann was born in Ohio on September 27, 1973 to Carolyn and Jack Spencer. LAC-DT, at 6. She was approximately "eight or nine" when her parents divorced and her mother remarried Keith Maupin. LAC-DT, at 8. Lee Ann has one biological brother, Stephen, and two half-brothers, Matthew and Micah. Id. at 9. Lee Ann was ten years old when Matt was born. Id. She recalls being "very excited to have a baby brother. I mean at that age, I thought of him as kind of like a real-life baby doll, and I was so excited to have a baby in the house." Id. at 13.
After graduating from high school, Lee Ann moved to Indiana to attend college, where she "continued to stay close" with her family — talking to Matt and her brothers "all the time." LAC-DT, at 10-11. And although her college was a three-hour drive from home, Lee Ann and Matt often "saw each other. I came home to visit. [Matt] would come visit me." Id. at 11. Matt and Micah would occasionally spend the night at Lee Ann's house, or the three would visit their grandmother in Terre Haute. Id. Lee Ann was always "very protective" of Matt and Micah; they considered her a "second mom." Id. at 13.
Lee Ann describes Matt as "very smart, very carefree, very loving." LAC-DT, at 12. The last time she saw Matt was in 2003, when the family gathered at their grandmother's house for Thanksgiving. Id. at 18. Lee Ann and Matt frequently corresponded when Matt was overseas. Id. at 17-19.
Carolyn Maupin was the first person to inform Lee Ann that Matt's convoy had been attacked and that Matt was "missing." Id. Lee Ann "was devastated, and I was so — I was terrified because never in my life did I ever think I would hear something like that." Id. At one point, she was told that Matt had been captured by "terrorists and they were threatening him and basically trying to blackmail the government." Id. at 20. Lee Ann soon learned that Matt's abductors aired a video showing
Approximately four years later, Carolyn called Lee Ann to inform her that a few fragments of Matt's remains had been unearthed. LAC-DT, at 26. Although Lee Ann had always suspected Matt would never return — given "all of the horrific things that these insurgents were doing to other people" — she was nonetheless "devastat[ed]." Id. at 30. She describes those intervening years as "pretty awful," particularly because the military provided the family with no updates on Matt's status. The family prayed Matt would be safe and "included him in ways that we felt like we still could because we didn't want to give up hope." Id. They decorated a Christmas tree with ornaments in his honor and always celebrated his birthday. Id. at 27. Lee Ann placed Matt's picture on a podium during her wedding so he could be included. Id. at 28. She found some measure of comfort working with the Yellow Ribbon Support Center and sending care packages to American troops overseas. Id. at 29.
Lee Ann was also comforted by her husband, who was "always willing to listen to me, to be there for me, to talk to me," LAC-DT, at 30-31, and by her family with whom she has shed many tears. Id. at 31. Lee Ann has since suffered many sleepless nights, experienced fluctuations in her appetite, and often could not work. Id. at 32. Lee Ann notes that Stephen and Micah, who were both close to Matt, were similarly devastated by their brother's death. Id. at 34.
Stephen Spencer's testimony was elicited by deposition taken on April 12, 2019 ("SS-DT"). Stephen was born on June 4, 1976 in Ohio to Carolyn and Jack Spencer. SS-DT, at 6. Following his parents' divorce, Stephen and Lee Ann resided with their mother, and their half-brothers, Micah and Matt. SS-DT, at 10-11. Given the age difference between Stephen and his brothers, Stephen played a "big role in helping my mom" look after them. Id. at 14. He cared for his younger brothers during the summer months when the three would play baseball and football together. Id. at 15. Stephen fondly recounts how Matt would spend time with Stephen's one-year-old son, Grady. Id. at 18.
Matt joined the Army Reserves in approximately 2003. SS-DT, at 19. When he deployed to Iraq in 2004, Stephen saw him off from their mother's house. Id. In April 2004, Stephen received a call from Matt's father, informing him that Matt had been captured and asking that Stephen return home. Id. at 20. Stephen recalls that, upon his arrival, his mother was "not very well. She was very upset." Id. at 21. Members of the military arrived shortly thereafter, as did Lee Ann and her family. Id. Stephen recalls watching a video released by Matt's captors showing his brother surrounded by a group of terrorists. Id. at 22. He also viewed a second dark and grainy video, purporting to depict Matt's execution. Id. at 23. Stephen recalls military officials asking him to scrutinize the last video and confirm that the person being executed was his brother. Id.
Four years after Matt was captured, Carolyn contacted Stephen with news that
Matt's viewing took place at the Union Township Civic Center where it was attended by the family and members of the community. SS-DT, at 27. See https://www.iraqwarheroes.org/maupin.htm (Last visited June 6, 2019). Matt's funeral was held at the Great American Ballpark "because they were afraid there wouldn't be enough seating or space for all of the support." SS-DT, at 27. Stephen recounts how the route to the cemetery was lined with members of the Patriot Guard and motorcyclists from Rolling Thunder. Id. at 28.
As a memorial to his brother, Stephen displays Matt's photograph in the family living room, along with a shadow box containing an American flag and a letter of gratitude from President Bush. SS-DT, at 29. To this day, Stephen's three children "are very aware of Matt" and are proud of him. Id.
Stephen describes how Micah, who was in the Marine Corps when Matt's remains were discovered, "tried to be as strong as he can for everybody around us." SS-DT, at 30, 31. Stephen suspects Micah "suppressed a lot of it" and, though he tried "be strong on the outside," Micah found it very difficult to cope with his brother's death. Id. Stephen recalls that Lee Ann also "ha[d] a very hard time with it." Id. at 31-32. Coping with Matt's death remains "a struggle." Id. at 33.
Micah Maupin, Lee Ann Cottrell, and Stephen Spencer seek solatium damages resulting from the kidnapping, torture, and murder of their brother, Matt Maupin. Damages Memorandum, at 17-18. They also ask for prejudgment interest on any damages awarded. Id. at 18-20. The Special Master will examine each claim, in turn.
To recover under the FSIA, a "default winner must prove damages `in the same manner and to the same extent as any other default winner.'" Botvin v. Islamic Republic of Iran, 873 F.Supp.2d 232, 242-43 (D.D.C. 2012) (quoting Wachsman v. Islamic Republic of Iran, 603 F.Supp.2d 148, 160 (D.D.C. 2009)). In the context of a default judgment, courts in this jurisdiction carve a "`clear distinction' in the standard of proof necessary to establish a plaintiffs entitlement to damages and the evidence needed to assess the amount of those damages." Rhodes v. United States, 967 F.Supp.2d 246, 313 (D.D.C. 2013) (emphases in original) (quoting Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562, 51 S.Ct. 248, 75 S.Ct. 544 (1931)).
To recover future damages, a plaintiff must demonstrate entitlement to a "reasonable certainty" or by a preponderance of the evidence, and must prove damages by a "reasonable estimate." Hill v. Republic of Iraq, 328 F.3d 680, 684 (D.C. Cir. 2003). See also Fraenkel v. Islamic Republic of Iran, 892 F.3d 348, 353 (D.C. Cir. 2018) ("Upon obtaining a default judgment, successful plaintiffs may recover damages by proving `that the projected
In the context of the FSIA, proof may be established by affidavit or declaration which, upon evaluation, the Special Master "may accept Plaintiffs' uncontroverted evidence as true." Lanny J. Davis & Associates LLC v. Republic of Equatorial Guinea, 962 F.Supp.2d 152, 161 (D.D.C. 2013). See also Belkin v. Islamic Republic of Iran, 667 F.Supp.2d 8, 20 (D.D.C. 2009) ("In default judgment cases, Plaintiffs may present such evidence in the form of affidavits or declarations rather than through live witnesses testifying in open court"). In fashioning an award, the Special Master may consider any "special problems of proof arising from the defendant's absence." Hill, 328 F.3d at 685.
Finally, to support their claim for loss of solatium, claimants must demonstrate "some reasonable connection between the act or omission of the defendant and the damages which the plaintiff has suffered," Brewer v. Islamic Republic of Iran, 664 F.Supp.2d 43, 54 (D.D.C. 2009), so it does not stretch traditional notions of proximate causation beyond the parameters of basic tort law. Application of "this classic tort notion normally eliminates the bizarre." Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123, 1128 (D.C. Cir. 2004) (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 536, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995)).
Upon review of the testimonial and documentary evidence presented, and in accordance with the legal framework set out below, the Special Master considers those damages for solatium available to Kent Micah Maupin, Lee Ann Cottrell, and Stephen Spencer.
Solatium damages, by their very definition, recognize that "[a]cts of terrorism," which "are extreme and outrageous and intended to cause the highest degree of emotional distress." Belkin, 667 F.Supp.2d at 22) (citing Stethem v. Islamic Republic of Iran, 201 F.Supp.2d 78, 89 (D.D.C. 2002)). See also Eisenfeld v. Islamic Republic of Iran, 172 F.Supp.2d 1, 9 (D.D.C. 2000) ("[O]ne of the aspects of terrorism is its targeting of the innocent with the intent to create maximum emotional impact."). Courts reason that "[a] hostage without loved ones — that is, a hostage without those who will be emotionally distressed by his absence — is of no value at all to a hostagetaker." Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27, 50 (D.D.C. 2001).
Solatium damages attempt to redress the profound psychological damage resulting from the traumatic loss of a loved one by "compensate[ing] persons for mental anguish, bereavement and grief that those with a close personal relationship to a decedent experience as well as the harm caused by the loss of the decedent's society and comfort." Roth v. Islamic Republic of Iran, 78 F.Supp.3d 379, 402 (D.D.C. 2015) (quoting Oveissi v. Islamic Republic of Iran, 768 F.Supp.2d 16, 25 (D.D.C. 2011)) (internal quotation marks and alterations omitted). Courts consider several factors when calculating an award, including: "(1) whether the decedent's death was sudden and unexpected; (2) whether the death was attributable to negligence or malice; (3)
For claims "based on the loss of a sibling, a claimant must `prove a close emotional relationship with the decedent.'" Hirshfeld v. Islamic Republic of Iran, 330 F.Supp.3d 107, 146 (D.D.C. 2018) (quoting Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 30 (D.D.C. 1998)). Apropos of the claims brought by Stephen and Lee Ann — Matt Maupin's half brother and sister, no legal distinction is made between their right to recover damages and the rights of Micah, who is related by blood. See Peterson v. Islamic Republic of Iran, 515 F.Supp.2d 25, 52 (D.D.C. 2007) ("Siblings of half-blood to the servicemen in this case are presumed to recover as a full-blood sibling would.").
As a mechanism to redress emotional trauma, solatium claims are "undeniably difficult to quantify," Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229, 254 (D.D.C. 2006), and do not readily lend themselves to "models and variables." Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 111 (D.D.C. 2000) (citations omitted). Rather, "[a]s damages for mental anguish are extremely fact-dependent, claims require careful analysis on a case-by-case basis." Fraenkel, 892 F.3d at 356-57 (quoting, 999 F.Supp. at 29). Courts, therefore, look for guidance in "prior decisions." Acosta v. Islamic Republic of Iran, 574 F.Supp.2d 15, 29 (D.D.C. 2008). Those decisions reveal that "courts typically award between $8 million and $12 million for pain and suffering resulting from the death of a spouse approximately $5 million to a parent whose child was killed and approximately $2.5 million to a plaintiff whose sibling was killed." Heiser, 466 F.Supp.2d at 269 (footnotes omitted).
Plaintiffs have clearly demonstrated they each are entitled to an award for loss of solatium due to the murder of their brother. Micah Maupin, Lee Ann Cottrell, and Stephen Spencer each presented highly credible testimony that compellingly evidenced the close relationships Matt enjoyed with each. Matt and Micah did everything together as children, and Matt considered Lee Ann a "second mom" with whom he never lost contact. Stephen helped to raise Matt, and Matt enjoyed spending time with Stephen's son. The attention, companionship, and comfort proven to have been lost by each of Matt's siblings because of his death was considerable. The evidence, which is only briefly noted here, establishes that Matt's siblings have suffered and will continue to suffer a considerable deprivation having lost their brother's society.
In sum, each sibling amply demonstrated they suffered the loss of "the mutual benefit that each family member receives from the other's continued existence, including love, affection, care, attention, companionship, comfort, guidance and protection." Wilson v. City of Chicago., 758 F.3d 875, 883 (7th Cir.2014).
Claimants ask that the siblings "each receive a baseline award of $2.5 million in damages." Damages Memorandum, at 5 (citing Heiser, 466 F.Supp.2d at 269). The Special Master agrees. That said, the Special Master also recommends each sibling receive an enhancement to the amount requested.
The baseline awards established in Heiser, while instructive, are "not set in stone," Murphy v. Islamic Republic of Iran, 740 F.Supp.2d 51,
Of these factors, particular emphasis is placed on the cause of death in terrorism cases, as "the fact of death and the cause of death can become inextricably intertwined, thus interfering with the prospects for anguish to diminish over time." Elahi, 124 F.Supp.2d at 111.
Micah, Lee Ann, and Stephen underwent four tortured years not knowing if Matt was alive, only to learn that bone shards were all that remained of their brother. They were forced to endure the horrific agony of viewing one video showing Matt on his knees surrounded by armed insurgents and another purporting to display his execution. The circumstances surrounding Matt's death only added to his siblings' anguish. The Special Master therefore finds: (1) the cause of Matt's death "interfer[ed] with the prospects for [the] family's anguish to diminish over time," Elahi, 124 F.Supp.2d at 111; (2) the circumstances surrounding Matt's kidnapping murder "appreciably worsen[ed] [his siblings'] pain and suffering," Greenbaum, 451 F.Supp.2d at 108; (3) the videos aired by the ZTO rendered "the[ir] suffering particularly more acute or agonizing," Oveissi, 768 F.Supp.2d at 26-27; and (4) the years spent not knowing what befell their brother exacerbated their "mental anguish in excess of that which would have been experienced following the decedent's natural death." Dammarell I, 281 F.Supp.2d at 197.
The Special Master recommends, therefore, that Micah, Lee Ann, and Stephen each receive an enhancement of $1 million in addition to the $2.5 million baseline award set out in Heiser, for a total of $3.5 million each in compensatory damages for loss of solatium.
Plaintiffs ask the Court to add prejudgment interest to the Special Master's recommended award of solatium, in keeping with the "federal common law rule that court should ordinarily award [prejudgment interest]." Damages Memorandum, at 18 (citing Motion Picture Ass'n v. Oman, 969 F.2d 1154, 1157 (D.C. Cir. 1992); Rodgers v. United States, 332 U.S. 371, 373, 68 S.Ct. 5, 92 S.Ct. 3, (1947)). They maintain an award of interest is necessary: (1) "for full compensation," (quoting Oldham v. Korean Air Lines Co., 127 F.3d 43, 54 (D.C. Cir. 1997); (2) to "deny the defendant the time value of the money which rightly belonged to a plaintiff from the date of the wrong," (citing West Virginia v. United States, 479 U.S. 305, 306, 107 S.Ct. 702, 93 L.Ed.2d 639 (1987) and Osterneck v. Ernst & Whinney, 489 U.S. 169 at 175-76, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989)); and (3) to "compensate[ ] for the time value of the income stream the decedent would have earned between death and the entry of judgment[.]" (quoting Woodling v. Garrett Corp., 813 F.2d 543 (2d Cir. 1987) and Lin v. McDonnell Douglas Corp., 742 F.2d 45, 51-52 (2d Cir. 1984)). Damages Memorandum, at 19.
The Special Master respectfully disagrees. As discussed more fully below, there is no statutory basis for awarding prejudgment interest to victims of terrorism, and this jurisdiction recognizes no overarching presumption for awarding interest where federal statutes are violated. Beyond this, the reasons proffered by courts in this Circuit to justify awarding interest to victims of terrorism are inherently suspect. Finally, Plaintiffs have not justified their request for prejudgment interest by demonstrating that the solatium award they requested is not fully compensatory. For these reasons, the Special Master takes issue with Plaintiffs' conclusion that "[a]n award of prejudgment interest is especially appropriate under the circumstances in this case and indeed in those found in most cases brought against state sponsors of terrorism." Damages Memorandum, at 19 (citations omitted).
In light of the diametrically opposite positions taken by courts in this Circuit concerning the propriety of awarding interest to victims of terrorism, the Special Master suggests a more pointed examination is warranted. Before undertaking such an analysis, however, several prefatory comments are in order.
Prejudgment interest is not "an absolute right." City of Milwaukee v. Cement Division, National Gypsum Co., 515 U.S. 189, 196, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995) (quoting The Scotland, 118 U.S. 507, 518-19, 6 S.Ct. 1174, 30 S.Ct. 153 (1886)). It is "an element of complete compensation," West Virginia, 479 U.S. at 310, 107 S.Ct. 702, awarded both "to ensure that an injured party is fully compensated for its loss," City of Milwaukee, 515 U.S. at 195, 115 S.Ct. 2091, and to redress a party's "inability to use the money due him between the date his claim accrued and the date of judgment." Massachusetts Law Reform Inst., Inc. v. Legal Services Corp., 601 F.Supp. 415, 424 (D.D.C. 1984) (citations omitted).
As a compensatory award, prejudgment interest is subsumed within "the merits of the district court's judgment." Osterneck, 489 U.S. at 176 n. 3, 109 S.Ct. 987 (citing Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988)). It neither "rais[es] issues wholly collateral to the judgment in the main cause of action," Buchanan v. Stanships, Inc., 485 U.S. 265, 268, 108 S.Ct. 1130, 99 L.Ed.2d 289 (1988),
Finally, prejudgment interest is "an equitable remedy." As such, courts "must be careful that an award does not overcompensate a plaintiff." Commercial Union Assur. Co., plc v. Milken, 17 F.3d 608, 614 (2d Cir. 1994). See also Forman v. Korean Air Lines Co., Ltd., 84 F.3d 446, 450 (D.C. Cir. 1996) ("the purpose of prejudgment interest is to compensate — but not overcompensate — the plaintiff."). Stated alternatively, "[w]hen an 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 decision to award prejudgment interest is confided to the sound "discretion of the court [subject to] equitable considerations." Pugh, 530 F.Supp.2d at 263 (quoting Oldham, 127 F.3d at 54). Despite this broad latitude, courts are advised not to exercise this discretion by employing "a rigid theory of compensation for money withheld." Blau v. Lehman, 368 U.S. 403, 414, 82 S.Ct. 451, 7 L.Ed.2d 403 (1962). Instead, the propriety of interest awards must be guided by "considerations of fairness," such that a petition for interest should be "denied when its exaction would be inequitable." Bd. of Comm'rs of Jackson Cnty., Kansas v. United States, 308 U.S. 343, 352, 60 S.Ct. 285, 84 S.Ct. 313 (1939) (citations omitted). At least one court has opined that, in deciding the propriety of an award of interest, exercising discretion must avoid "judicial impressionism," and, instead, be "methodized by analogy, disciplined by system." Matter of Oil Spill by Amoco Cadiz Off Coast of France on March 16, 1978, 954 F.2d 1279, 1334 (7th Cir. 1992) (quoting Cardozo, The Nature of the Judicial Process, 139, 141 (1921)).
Unfortunately, the contours of "equity" and "fairness" apropos prejudgment interest are elusive and have led to courts to stress different factors depending on the legal context in which a petition for interest arises.
In an action brought under the RICO statute, 18 U.S.C.A. § 1961 et seq., for example, one court in this Circuit considered: "[1] whether prejudgment interest is necessary to compensate the plaintiff fully for his injuries; [2] the degree of personal wrongdoing on the part of the defendant; [3] the availability of ... investment opportunities to the plaintiff; [4] whether the plaintiff delayed in bringing or prosecuting the action; and [5] other fundamental considerations of fairness." BCCI Holdings (Luxembourg) Societe Anonyme v. Khalil, 56 F.Supp.2d 14, 68 (D.D.C 1999) (citing Osterneck, 489 U.S. at 176, 109 S.Ct. 987). Putting aside the questionable suitability of factors such as "the degree of personal wrongdoing on the part of the defendant"
In a case alleging violations of the Labor Management Relations Act, 29 U.S.C. § 186, the Second Circuit considered: "(i) the need to fully compensate the wronged party for actual damages suffered, (ii) considerations of fairness and the relative equities of the award, (iii) the remedial purpose of the statute involved, and/or (iv) such other general principles as are deemed relevant by the court." Wickham Contracting Co., Inc. v. Local Union No. 3, Intern. Broth. of Elec. Workers, AFLCIO, 955 F.2d 831, 833-34 (2d Cir. 1992) (citing cases). These "Wickham factors" have resonated with at least one court in this jurisdiction, which found them applicable to a securities fraud claim brought under the Securities Act of 1933 and the Securities Exchange Act of 1934. See SEC v. Milan Group, Inc., 962 F.Supp.2d 182, 205 n.12 (D.D.C. 2013).
And in an action seeking remuneration for violations of the Copyright Act, (17 U.S.C. § 101 et seq. (1982)), the Tenth Circuit urged the lower court first, to "determine whether an award of prejudgment interest would serve to compensate the injured party" and, second, "whether the equities would preclude the award of prejudgment interest." Kleier Advertising, Inc. v. Premier Pontiac, Inc., 921 F.2d 1036, 1042 n.4 (10th Cir. 1990)) (citation omitted).
While these alternative balancing tests may be relevant to the cases in which they were proposed, these attempts to delineate the boundaries of equity and fairness are little more than "hints" that "have done little to sketch the limits of acceptable discretion." Matter of Oil Spill, 954 F.2d at 1334. Rather than lend much-needed uniformity to an area of law, such as the FSIA, where perspectives are deeply divided, they call into question the value of calculating "the principal amount of damages in intricate detail" only to have it exponentially increased "on the basis of vague equitable concerns." Id. And although this lack of clarity is mitigated somewhat in the presence of unambiguous statutory language or established precedent, there is little guidance for prejudgment interest petitions brought under 26 U.S.C. § 1605A, as there exists only a scant body of case law on the subject; our courts are polarized; the D.C. Circuit has not spoken definitively on the issue; and the statute offers no roadmap.
Unlike cases in diversity where, absent "countervailing federal interests," Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 432, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), the "availability and amount of prejudgment ... is ordinarily governed by state law," AIG Baker Sterling Heights, LLC v. American Multi-Cinema, Inc., 508 F.3d 995, 1001 (11th Cir. 2007), for complaints arising under federal statutes, "the issue of whether or not the plaintiff may recover prejudgment interest is a matter of federal law." Ungar ex rel. Strachman v. Palestinian Authority, 304 F.Supp.2d 232, 237 (D.R.I. 2004). And while Congress has enacted a statute "governing the award of postjudgment interest in federal court litigation," see 28 U.S.C. § 1961,
Congressional silence concerning prejudgment interest, however, is not necessarily dispositive. Without "an explicit congressional directive, the awarding of prejudgment interest under federal law is committed to the trial court's broad discretion," Ambromovage v. United Mine Workers, 726 F.2d 972, 981-82 (3d Cir. 1984), and a district court's "refusal to make such an award will be upset only upon a showing of abuse of that discretion." Coliseum Cartage Co., Inc. v. Rubbermaid Statesville, Inc., 975 F.2d 1022, 1026 (4th Cir. 1992) (citations omitted). See also City of Milwaukee, 515 U.S. at 194, 115 S.Ct. 2091 ("[T]he absence of a statute [authorizing interest] merely indicates that the question is governed by traditional judge-made principles."); Rodgers, 332 U.S. at 373, 68 S.Ct. 5 ("[T]he failure to mention interest in statutes which create obligations has not been interpreted by this Court as manifesting an unequivocal congressional purpose that the obligation shall not bear interest.").
In situations, such as presented here, where the legislative apparatus offers no guideposts, courts inquire whether "an award of such interest would further the congressional policies" of the particular statute. See, e.g., West Virginia, 479 U.S. at 310-11, 107 S.Ct. 702 (looking to the purpose behind the Disaster Relief Act to determine if prejudgment interest is recoverable); Hansen v. Continental Ins. Co., 940 F.2d 971, 984 n.11 (5th Cir. 1991) ("[A]n award of prejudgment interest under ERISA furthers the purposes of that statute by encouraging plan providers to settle disputes quickly and fairly, thereby avoiding the expense and difficulty of federal litigation."); Poleto v. Consolidated Rail Corp., 826 F.2d 1270, 1274-75 (3d Cir. 1987) (looking to purpose of the Federal Employers Liability Act and history of cases interpreting it to determine whether prejudgment interest is available).
Such an inquiry is unhelpful in this instance as there is no suggestion either in the language of the FSIA or in its history indicating the law's underlying purpose would be furthered or frustrated by awards of interest. By enacting the FSIA, "Congress codified the standards for the recognition of foreign sovereign immunity, as well as the exceptions to such immunity." Daliberti v. Republic of Iraq, 97 F.Supp.2d 38, 50 (D.D.C. 2000). The terrorism exception was ratified "expressly to bring state sponsors of terrorism ... to account for their repressive practices," and to "give American citizens an important economic and financial weapon." Han Kim v. Democratic People's Republic of Korea, 774 F.3d 1044, 1048 (D.C. Cir. 2014) (citing H.R.Rep. No. 104-383, at 62). At its core, the FSIA "is undoubtedly a jurisdictional statute which, in specified cases, eliminates foreign sovereign immunity and opens the door to subject matter jurisdiction in the federal courts." Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002). See Molora Vadnais, The Terrorism Exception to the Foreign Sovereign Immunities Act, 5 UCLA J. INT'L & FOREIGN AFF. 199, 216 (2000) ("Congress had three goals in enacting the terrorism exception: to provide a method by which injured plaintiffs could obtain justice; to make states that support terrorism pay for their actions; and to deter states from supporting terrorism or committing terrorist acts in the future.") (citing 139 Cong. Rec. S4924 (statement of Sen. Specter)).
Indeed, the only statute addressing the issue, the Justice for United States Victims of State Sponsored Terrorism, defines "compensatory damages" to "not include pre-judgment or post-judgment interest or punitive damages." 34 U.S.C. § 2144(j)(3) (emphasis added). And as 1605A contains no such caveat, and Congress has offered no guidance, the propriety of interest awards must be settled "according to general principles of law as administered in the federal courts at the time of enactment." Louisiana & Arkansas Railway Co. v. Pratt, 142 F.2d 847, 848 (5th Cir. 1944).
There are numerous areas of law where it is presumed, "a court should ordinarily award pre-judgment interest." Oman, 969 F.2d at 1157. These presumptions may be found, for example, in cases seeking the enforcement of foreign arbitral awards, Continental Transfert Technique Ltd. v. Fed. Gov't of Nigeria, 932 F.Supp.2d 153, 163-64 (D.D.C. 2013); in contractual disputes with the United States, West Virginia, 479 U.S. at 306, 107 S.Ct. 702; in cases sounding in admiralty, City of Milwaukee., 515 U.S. at 195, 115 S.Ct. 2091, and general maritime law, Jauch v. Nautical Servs., Inc., 470 F.3d 207, 215 (5th Cir. 2006); in actions alleging violations of the Employee Retirement Income Security Act, Moore v. CapitalCare, Inc., 461 F.3d 1, 12 (D.C. Cir. 2006); Title VII of the Civil Rights Act, Booker v. Taylor Milk Co., 64 F.3d 860, 868 (3d Cir. 1995); the Patent Act and Copyright Act of 1976, Frank Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1550 (9th Cir. 1989); the Securities Act of 1933 and the Securities Exchange Act of 1934, Singer v. Olympia Brewing Co., 878 F.2d 596, 600 (2d Cir.1989); the Labor Management Act, Bricklayers' Pension Trust Fund v. Taiariol, 671 F.2d 988, 989 (6th Cir. 1982)); and the Fair Labor Standards Act, Brennan v. Maxey's Yamaha, Inc., 513 F.2d 179, 183 (8th Cir. 1975).
No such presumption exists for cases arising under the FSIA. Moreover, victims in this jurisdiction cannot support their request by citing the all-encompassing presumption adopted by several circuits that prejudgment interest be awarded whenever federal laws are violated. Unlike the Fifth Circuit, which adheres to "a strong presumption in favor of awarding pre-judgment interest" where violations of federal law are found, United States v. Ocean Bulk Ships, Inc., 248 F.3d 331, 344 (5th Cir. 2001); or the Seventh Circuit which has held that "prejudgment interest should be presumptively available to victims of federal law violations," Gorenstein Enters., Inc. v. Quality Care-USA, Inc., 874 F.2d 431, 436 (7th Cir. 1989); or the Tenth Circuit, whose "precedents do establish that prejudgment interest normally should be awarded on successful federal claims," F.D.I.C. v. UMIC, Inc., 136 F.3d 1375, 1388 (10th Cir. 1998), this jurisdiction "does not reflect such a presumption'" Neal v. Director, D.C. Dept. of Corrections, No. 93-2420 (RCL), 1995 WL 870887 at *1 (D.D.C. December 20, 1995) (emphasis added). Rather, the decision to award prejudgment interest "rests within the equitable discretion of the district court," who will decide "whether fairness and equitable considerations presented by this case merit an award of prejudgment interest." Id. (citing Frederick County Fruit Growers Ass'n, Inc. v. Martin, 968 F.2d 1265, 1275 (D.C. Cir. 1992)).
Against the foregoing backdrop, the Special Master has reviewed decisions rendered
Amduso v. Republic of Sudan, 61 F.Supp.3d 42, 53 (D.D.C. 2014).
As set out below, the Special Master's review has yielded the conclusion that none of the aforementioned rationales supports a conclusion that victims of terrorism are entitled to prejudgment interest.
This refrain is the one repeated most often by courts in support of awarding prejudgment interest to FSIA plaintiffs. See Fritz v. Islamic Republic of Iran, 324 F.Supp.3d 54, 64 (D.D.C. 2018); Amduso, 61 F.Supp.3d at 53; Onsongo v. Republic of Sudan, 60 F.Supp.3d 144, 153 (D.D.C. 2014); Wamai v. Republic of Sudan, 60 F.Supp.3d 84, 98 (D.D.C. 2014); Opati v. Republic of Sudan, 60 F.Supp.3d 68, 82 (D.D.C. 2014); Mwila v. Islamic Republic of Iran, 33 F.Supp.3d 36, 46 (D.D.C. 2014); Khaliq v. Republic of Sudan, 33 F.Supp.3d 29, 34 (D.D.C. 2014); Doe v. Islamic Republic of Iran, 943 F.Supp.2d 180, 184 n.1 (D.D.C. 2013).
This proposition is suspect on several fronts. First, it implies that courts awarding solatium damages fail to consider the "extremely fact-dependent" nature of a claimant's mental anguish, bereavement, and grief over time, or fail to "careful[ly] analy[ze]" those damages "on a case-by-case basis." Fraenkel, 892 F.3d at 356-57. It further suggests prejudgment interest is necessary because courts are ignoring well-established canons requiring: (1) that "the calculation [for solatium damages] should be based upon the anticipated duration of the injury'"; (2) that "[c]laims for mental anguish belong to the claimants and should reflect anticipated persistence of mental anguish in excess of that which would have been experienced following decedent's natural death"; and (3) that, "[w]hen death results from terrorism, the fact of death and the cause of death can become inextricably intertwined, thus interfering with the prospects for anguish to diminish over time." Id. at 357 (emphases added) (quoting Flatow, 999 F.Supp. at 31).
These "Flatow principles" were first articulated by Judge Lamberth in a decision lauded as "the best explanation of solatium damages in this circuit," and one that "continues to guide dispositions of claims under the FSIA." Fraenkel, 892 F.3d at 356 (emphasis added). Significantly, these principles constrain the singular conclusion that "the mental anguish, bereavement and grief that those with a close personal relationship to a decedent experience," Hirshfeld, 330 F.Supp.3d at 140 (citation omitted), can only be properly calculated with "reference to the time elapsed since the attacks."
Second, the supposition that damages for solatium are calculated based on a
As described above, the Heiser court articulated a framework suggesting that spouses of deceased victims be awarded $8 million, parents receive $5 million, and siblings receive $2.5 million. 466 F.Supp.2d at 269. Those numbers were never meant to be immutable, or "set in stone." Murphy, 740 F.Supp.2d at 74. Mindful that "the Court must take pains to ensure that individuals with similar injuries receive similar awards," Peterson, 515 F.Supp.2d at 54, Heiser represents an attempt to lend uniformity to an area not readily disposed to quantification. Since first formulated, the awards proposed in Heiser have always been subjected to enhancement or diminution based on a myriad of factors, including, "the duration of the claimant's mental anguish." Dammarell I, 281 F.Supp.2d at 197. Suggesting that courts employ the Heiser formula "without reference to the time elapsed since the attacks," fails to consider both the flexibility inherent in these awards and the fact that courts consistently deviate from the baseline numbers when circumstances dictate.
Indeed, it is the inherent malleability of the Heiser guidelines, that has resulted in courts denying petitions for interest on the grounds that "nonpecuniary damages, such as solatium damages, ... are `designed to be fully compensatory,'" Thuneibat v. Syrian Arab Republic, 167 F.Supp.3d 22, 54 (D.D.C. 2016) (quoting Wyatt v. Syrian Arab Republic, 908 F.Supp.2d 216, 232 (D.D.C. 2012)), and "represent the appropriate level of compensation, regardless of the timing of the attack." Brown v. Islamic Republic of Iran, 872 F.Supp.2d 37, 45 (D.D.C. 2012) See also Harrison v. Republic of Sudan, 882 F.Supp.2d 23, 51 (D.D.C. 2012) (where "the Court has applied the framework in Heiser, to its calculation of solatium damages (as explicitly proposed by plaintiff's), prejudgment interest is not appropriate for these awards."); Oveissi, 768 F.Supp.2d at 30 n.12 (D.D.C. 2011) ("to the extent plaintiff suggests that such interest is "necessary to fully compensate Mr. Oveissi for the enormous loss he sustained... the Court notes that the upward adjustments from the Heiser valuation fulfill this very function.") (emphasis added).
This is not to suggest prejudgment interest should never be applied to solatium damages. In Owens v. Republic of Sudan, 71 F.Supp.3d 252 (D.D.C. 2014), for example, the court awarded prejudgment interest, citing the special master's failure both to "account for the time that has elapsed since the 1998 attacks" and "adjust the recommended awards for pain and suffering and solatium." Id. at 261. It may be argued that, had the Owens special master factored the duration and gravity of the claimants' mental anguish into his recommended award, the court would have concluded otherwise. This inference was, in fact, borne out by the district court's decision in Goldstein v. Islamic Republic of Iran, 383 F.Supp.3d 15 (D.D.C. 2019).
In Goldstein, the special master recommended "an appropriate compensatory award" that "accounted for the passage of time — and the persistence of the plaintiffs' trauma," by evaluating "the nature and duration of the injury" and its "long-term effects (emotionally and physically)." Id. at 24. Based on the special master's thorough review, the court denied plaintiffs' application for prejudgment interest and rejected claimants' arguments that, "[a]wards for pain and suffering and solatium are calculated without reference to the time elapsed since the attacks," and that "awards are best viewed as fixed at the time of the loss." Id.
A second justification cited by courts awarding prejudgment interest is that "plaintiffs were unable to bring their claims immediately after the attacks [and] they lost use of the money to which they were entitled upon incurring their injuries." Amduso, 61 F.Supp.3d at 53; Opati, 60 F.Supp.3d at 82-83; Khaliq, 33 F.Supp.3d at 34-35; Mwila, 33 F.Supp.3d at 46; Doe, 943 F.Supp.2d at 184 n.1. This proposition is equally unsustainable.
Courts adopting this rationale maintain, without clarification or authority, that "immediately after the attacks," victims of terrorism are without legal recourse to pursue their claims. This position, however, overlooks the obvious fact that, following most, if not all of the terrorist acts perpetrated upon citizens of the United States over the past few decades, the victims and/or their families have successfully pursued actions against terrorists and those that enabled or provided them material support. Those injured have sought accountability under 28 U.S.C. 1605(a)(7) — the precursor to 1605A, and a statute Congress "expressly directed be given retroactive application," Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62, 68-69 (D.D.C. 1998); the Antiterrorism Act of 1991 ("ATA"), Pub. L. No. 102-572, § 1003, 106 Stat. 4522 (codified as amended at 18 U.S.C. §§ 2331-38 (2006)); the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered provisions of U.S.C. §§ 18, 21, 28, 42); the Torture Victim Protection Act of 1991 ("TVPA"), Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified as amended at 28 U.S.C. § 1350 note (2006)); and the Alien Torts Claims Act ("ATCA"), 28 U.S.C. § 1350 (2006).
Claimants have also prevailed asserting state common-law tort theories, such as negligent and intentional infliction of emotional distress, battery, assault, wrongful death, survival, false imprisonment, loss of consortium, solatium, and aiding and abetting liability. See, e.g., Kilburn, 277 F.Supp.2d at 35-36 ("A plaintiff bringing suit under section 1605(a)(7) may base his claim on conventional common-law torts such as assault, battery, and intentional infliction of emotional distress.") (citing cases), abrogated by, Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004)
In most instances, victims of terrorism have historically pressed their claims both under common law and federal statute. In Hurst v. Socialist People's Libyan Arab Jamahiriya, 474 F.Supp.2d 19 (D.D.C. 2007), for example, eleven family members of four victims killed in Pan Am Flight 103 over Lockerbie, Scotland on December 21, 1988, brought suit against the Socialist People's Libyan Arab Jamahiriya, the Jamahiriya Security Organization, the Libyan Arab Airline, and two Libyan intelligence officials. They based their claims on the state-sponsored terrorism exception of the FSIA; the Flatow Amendment; the TVPA; the ATA; as well as state-law claims of intentional infliction of emotional distress and civil conspiracy. Id. at 22. In Burnett v. Al Baraka Inv. & Dev. Corp., 274 F.Supp.2d 86 (D.D.C. 2003), more than two thousand victims and their families sought accountability from nearly two hundred individuals and entities that funded and supported al Qaeda in perpetrating the 9/11 World Trade Center tragedy. Those plaintiffs raised statutory claims under the FSIA, the TVPA, the ATA, the ATCA, and the RICO, in addition to common-law
The availability of these federal and state causes of action calls into question the viability of prejudgment interest requests brought by those who chose to not avail themselves of these remedies in a timely fashion. Because, in addition to the "equitable considerations" courts balance when exercising discretion in awarding prejudgment interest to prevailing plaintiffs, courts give equally careful consideration to considerations that might mitigate against an award of interest. The "most obvious" reason for denying prejudgment interest, is "the plaintiff's responsibility for "`undue delay in prosecuting the lawsuit,'" City of Milwaukee, 515 U.S. at 196, 115 S.Ct. 2091 (quoting General Motors Corp., 461 U.S. at 657, 103 S.Ct. 2058), i.e., "when the plaintiff himself is responsible for the delay in recovery." Wickham, 955 F.2d at 835.
In sum, justifying an award of prejudgment interest on the supposition that victims of terrorist activity "were unable to bring their claims immediately after the attacks," overlooks the statutory and common-law causes of action available to injured parties through the years. It further assumes plaintiffs were not dilatory prosecuting their actions.
Courts awarding prejudgment interest also have insisted that "denying prejudgment interest on these damages would allow defendants to profit from the use of the money in the time between the attacks and the litigation." Fritz, 324 F.Supp.3d at 64; Amduso, 61 F.Supp.3d at 53; Wamai, 60 F.Supp.3d at 98; Mwila, 33 F.Supp.3d at 46; Doe, 943 F.Supp.2d at 184 n.1; Baker v. Socialist People's Libyan Arab Jamahirya, 775 F.Supp.2d 48, 86 (D.D.C. 2011).
The Special Master suggests this rationale is flawed for two reasons. First, it assumes plaintiffs bear no responsibility for the delay. For the reasons stated above, this proposition is suspect. Second, it presupposes that individual, institutional, and state proponents of terrorism are responsible for monetary damages before final judgment is rendered. The validity of this position is equally questionable.
In contexts other than terrorism, prejudgment interest has been denied because "defendant was not profiting from the use of money it owed plaintiff between [the date of the tort] and [the date of judgment] because its responsibility to pay plaintiff did not accrue until the verdict was rendered." Romero v. ITW Food Equipment Group, 118 F.Supp.3d 349, 354 (D.D.C. 2015). See also Athridge v. Iglesias, 382 F.Supp.2d 42, 54 (D.D.C. 2005) (defendants "had no obligation to pay ... until entry of final judgment against them."). As the court in Athridge explained, "until there was a factual finding holding them liable for the accident and the damages that the minor plaintiff sustained.... [defendants] were not enjoying the use of money that they owed plaintiffs during the course of the litigation because they did not owe the money until the ... verdict against them was rendered." Id. at 52 (emphasis in original).
In the context of the FSIA, it can be argued that "no party could foresee, at the time of the wrongdoing, the full amount of damages that would result," Wickham, 955 F.2d at 835, especially given the wide fluctuation
It is not disputed that courts award prejudgment interest to compensate for plaintiffs' "delay[ ] in recovering compensation for their injuries." Belkin, 667 F.Supp.2d at 24; Wachsman, 603 F.Supp.2d at 162; Ben-Rafael, 540 F.Supp.2d at 59; Pugh, 530 F.Supp.2d at 263. What is less clear is whether that award should compensate for the delay between the terrorist act and date of judgment, or be limited to those delays arising out of the litigation process. There are two conflicting schools of thought on the matter.
One line of cases adheres to the principle that awards of prejudgment interest are "best viewed as fixed at the time of the loss." Fritz, 324 F.Supp.3d at 64. See Onsongo, 60 F.Supp.3d at 154 (awarding prejudgment interest for the 15 year period between August 7, 1998, the date the United States embassies in Nairobi, Kenya and Dares Salaam, Tanzania were bombed and the date of judgment); Khaliq, 33 F.Supp.3d at 34-35 (same); Reed v. Islamic Republic of Iran, 845 F.Supp.2d 204, 215 (D.D.C. 2012) (awarding interest "from the date of the kidnapping ... to the present"); Belkin, 667 F.Supp.2d at 24 (awarding prejudgment interest to compensate for the period between a March 4, 1996 bombing and a September 30, 2009 final judgment); Ben-Rafael v. Islamic Republic of Iran, 540 F.Supp.2d 39, 59 (D.D.C. 2008) (finding it proper "to award plaintiffs prejudgment interest from the date of the bombing ... until the date of final judgment"); Dammarell, No. 01-2224(JDB), 2006 WL 2583043 *1 n.2 (D.D.C. Sept.7, 2006) ("Dammarell II") (awarding interest for injuries "sustained over the course of more than two decades").
The other body of cases focuses on litigation-driven delays, in deference to the principle that, "[t]he purpose of such awards is to compensate the plaintiff for any delay in payment resulting from the litigation." Oldham, 127 F.3d at 54 (emphasis added) (citing Oman, 969 F.2d. at 1157). See also Baker, 775 F.Supp.2d at 86 ("[s]uch awards compensate the victims for any delay due to litigation"); Price, 384 F.Supp.2d at 135 (same). Accordingly, where a party unnecessarily prolongs the proceedings through obstructive tactics, these courts award interest to compensate for any resulting delay. See Pugh, 530 F.Supp.2d at 265 (awarding prejudgment interest "because of the substantial delay in judgment for these plaintiffs caused by Libya's persistent delay tactics over the course of this litigation.") (emphasis added).
By extension, courts have denied petitions for interest in the absence of any obstructive conduct. See, e.g., Harrison,
The Special Master suggests there are conceptual difficulties attendant to calculating interest from the date of the tortious event. This approach assumes, in the first instance, that, without prejudgment interest, the solatium award fails to factor in the duration of a claimants' mental anguish. It further suggests plaintiffs were not complicit in delaying prosecution. For the reasons stated above, both assumptions are easily challenged. The Special Master, therefore, recommends that, absent an express finding: (1) that a solatium award is not fully compensatory, and (2) that claimants have been diligent when filing their claims, the more appropriate inquiry is whether a delay in plaintiffs receiving payment was a consequence of the litigation process.
The Special Master's recommendation is further guided by the fact that limiting prejudgment interest to litigation delays finds support beyond the terrorism sphere. See, e.g., Continental Transfert Technique Ltd. v. Federal Government of Nigeria, 932 F.Supp.2d 153, 163 (D.D.C. 2013) ("The purpose of [prejudgment interest] awards is to compensate the plaintiff for any delay in payment resulting from the litigation."); Holbrook v. District of Columbia, 305 F.Supp.2d 41, 46 (D.D.C. 2004) (same); Santamaria v. District of Columbia, 875 F.Supp.2d 12, 22 (D.D.C. 2012) ("[o]ne of the main factors to be considered is the length of time that the plaintiffs were required to expend in litigation"). It is an approach adopted by other circuits. See, e.g., Francisco v. United States, 267 F.3d 303, 309 (3d Cir. 2001) ("Where real property has been taken, injured, or destroyed, [compensation for delay]... is an allowable element ... but not where the claim is for personal injuries, for then the damages are assessed as of the date of the trial, and not of the injury.") (citation omitted); In re ClassicStar Mare Lease Litigation, 727 F.3d 473, 496 (6th Cir. 2013) ("Prejudgment interest may be particularly appropriate ... where a defendant has sought unreasonably and unfairly to delay or obstruct the course of litigation.").
Plaintiffs in this action have not proffered that Syria has delayed their compensation. In the view of at least one court, this oversight is fatal to their claim. See Thuneibat, 167 F.Supp.3d at 54-55 (denying request for prejudgment interest, observing that "plaintiffs did not submit any evidence that the delay between 2005, when the terrorist attacks occurred, and 2012, when the instant suit was filed, was due to any nefarious interference by the defendants or anyone else.").
In their prayer for damages, Plaintiffs ask that "each receive[s] a baseline award of $2.5 million in damages" for loss of solatium, in keeping with the formula established in Heiser. Damages Memorandum, at 5 (citing Heiser, 466 F.Supp.2d at 269). Plaintiffs have not, however, demonstrated the inadequacy of their requested solatium award. See Akins v. Islamic Republic of Iran, 332 F.Supp.3d 1, 46 (D.D.C.
For the aforementioned reasons, the Special Master recommends Kent Micah Maupin, Lee Ann Cottrell, and Stephen Spencer each receive Three Million Five Hundred Thousand Dollars ($3,500,000) in damages for loss of solatium. The Special Master further recommends no prejudgment interest be added to any award of solatium this Court may deem appropriate.
