RICHARD J. LEON, District Judge.
Plaintiffs are survivors of the terrorist hijacking of TWA Flight 847 from Athens, Greece on June 14, 1985, as well as immediate family members and estate representatives. Plaintiffs seek money damages against Iran for injuries and trauma caused by Iran's provision of material support to the hijackers pursuant to 28 U.S.C. § 1605A, the terrorism exception of the Foreign Sovereign Immunities Act ("FSIA"). Having considered all of the record evidence, I find that plaintiffs have established grounds for default. I therefore, for the following reasons,
On June 14, 1985, two Hezbollah hijackers boarded TWA Flight 847 leaving Athens, Greece headed for Rome, Italy. Amended Complaint ("Compl.") [Dkt. # 11] ¶ 18. There were 143 passengers and 8 crewmembers on board at the time, 69 of whom are passenger plaintiffs in this case. Id. Shortly after takeoff, the two hijackers ran up the aisle towards the cockpit waving guns and hand grenades, shouting: "Americans come to die!" Id. ¶ 19; see also Pls.' Mot. on Liability at 4-5 (citing evidence relied on in Stethem v. Islamic Republic of Iran, 201 F.Supp.2d 80 (D.D.C. 2002)).
What ensued was dramatic and terrifying. The hijackers forced some passengers into the First Class cabin and beat them repeatedly. Compl. ¶ 21; Pls.' Mot. on Liability at 5. They began to single out passengers who they suspected of being U.S. Military or Jewish. Compl. ¶ 16, 26; Pls.' Mot. on Liability, Ex. 2 (Stethem Transcript, Testimony of Clinton Suggs) ("Suggs Testimony")), at 87:1-90:23. They interrogated passengers about their religions. Id. ¶ 16. All seated passengers were forced to sit in a crash-landing position for hours at a time, and were forbidden from going to the bathroom. Id. ¶ 21. The terrorists landed the plane in Beirut for the first time three hours later on June 14th. Pls.' Mot. on Liability at 6; see also id., Ex. 28 (Zimmerman Timeline) at 124. They demanded the release of nearly 800 prisoners in Israel and Kuwait. Compl. ¶¶ 22-24. In exchange for fuel, they released several women and children. Pls.' Mot. on Liability, Ex. 28 (Zimmerman Timeline) at 124.
The hijackers then ordered the pilots to fly the plane to Algiers, Algeria. Compl. ¶ 23. After refueling again, they ordered the pilots to return to Beirut. Id. ¶ 23-24. The airport authorities ordered the plane not to land, and placed obstacles on the runway to enforce the order. Id. ¶ 24. Despite the dangerous conditions, the pilots were able to safely land on the runway. Id. On the ground in Beirut for a second time, the hijackers demanded that additional terrorists be allowed to board. Id. ¶ 25. They executed one passenger—a navy diver named Robert Stethem—and tossed his body onto the tarmac. Id. Later that day, ten additional militiamen from the Amal group and one Hezbollah spokesman boarded the plane. Id.; Pls.' Mot. on Liability, Ex. 28 (Zimmerman Timeline) at 126. The plane then headed back to Algeria for a second time. Id. ¶ 27. During this period, the hijackers began ramping up their harassment and abuse—threatening passengers with execution, beating them, and robbing them of all their belongings. Id. ¶ 26-27; Pls.' Mot. on Liability, Ex. 4 (Pls.' Decls.) at 6-7, 84, 441, 452. On the ground in Algeria, the terrorists released another swatch of passengers in exchange for an additional hijacker being allowed to board. Compl. ¶ 28.
On the morning of June 16, the hijackers ordered the plane back to Beirut for a third time. Pls.' Mot. on Liability, Ex. 28 (Zimmerman Timeline) at 129. At that point, the passengers still on board had endured 36 hours on the aircraft with inadequate food, water, access to bathroom facilities, or sleep. Id. The plane sat on the tarmac until the next morning, when 23 men were forced off the plane at gunpoint and taken into Beirut. Id. at 130; Compl. ¶¶ 28-29. For the next two weeks, the men were beaten, threatened, given inadequate food and water, and forced to watch propaganda. Compl. ¶ 28. The terrorists finally released the Beirut hostages to Syrian military personnel on June 30, 1985. Id. ¶ 29. The hijackers were indicted for their roles in the hijacking, but never taken into United States custody. See Pls.' Mot. on Liability at 10. They remain on the FBI's most wanted list. Id. at 11 n. 11.
Plaintiffs filed this action on February 24, 2017, seeking default judgment on liability and damages. On May 23, 2017, plaintiffs served Iran via diplomatic channels. Iran never accepted service, so the Clerk entered default on July 26, 2017. On February 2, 2018, plaintiffs moved to appoint a special master to review their claims for damages. See Motion for Order Appointing a Special Master for Damages [Dkt. # 24]. I appointed Special Master Alan Balaran to make findings on plaintiff's motion for default as to damages. See 2/12/18 Order [Dkt. # 25]. After reviewing testimonial and documentary evidence, he issued a Report and Recommendation awarding compensatory damages on August 28, 2018. See Special Master Report Filed Under Seal [Dkt. # 54].
Plaintiffs argue that Iran should be held liable under the FSIA's terrorism exception, 28 U.S.C. § 1605A, for providing material support to the terrorist groups that perpetrated the 1985 hijacking incident aboard TWA Flight 847. I begin by noting that this is not the first time the events at issue have been the subject of suit under the FSIA. In 2002, Judge Thomas Penfield Jackson granted default judgment in two consolidated cases involving the same 1985 hijacking incident under an older provision of the FSIA, § 1605(a)(7). See Stethem v. Islamic Republic of Iran, 201 F.Supp.2d 78, 85 (D.D.C. 2002). The two consolidated cases before Judge Jackson included the individual who was killed on the plane, Robert Stethem, as well as his surviving family members.
I will therefore grant plaintiff's request to take judicial notice of Judge Jackson's findings of fact, Ex. 1, and to consider the expert and witness testimony, Ex. 2, and relevant documentary evidence, Ex. 11-28, presented in Stethem. Pls.' Mot. on Liability at 34-35. I will also consider the updated expert report submitted by Dr. Clawson, the expert who previously submitted testimony on which Judge Jackson relied. Ex. 3; Stethem, 201 F. Supp. 2d at 92.
To find default judgment for the plaintiffs, I must first determine whether I have jurisdiction under the FSIA. Section §1605A(a)(1) imposes three requirements to establish subject matter jurisdiction: 1) that the claims be against a foreign state that was designated a state sponsor of terrorism at the time the acts occurred, § 1605A(a)(2)(A)(i); 2) that plaintiffs be U.S. nationals at the time the acts occurred, § 1605A(a)(2)(A)(ii); and 3) that plaintiffs be seeking money damages for personal injury or death caused by the foreign state's acts of torture, extrajudicial killing, aircraft sabotage, and hostage taking, or by the foreign state's provision of material support or resources for such acts. § 1605A(a)(1); see also Owens v. Republic of Sudan, 864 F.3d 751, 778 (D.C. Cir. 2017). Having considered the record evidence, I find that plaintiffs satisfy each of these requirements in the instant case.
First, as plaintiffs argue, Iran was designated a state sponsor of terrorism on January 19, 1984, and remained a designated state sponsor of Hezbollah at the time of the hijacking. See Pls.' Mot. on Liability, Ex. 11 (Statement of U.S. Secretary of State, 49 Fed. Reg. 2836-02); Stethem, 201 F. Supp. 2d at 85 (relying on evidence that Iran is the "patron state" of Hezbollah); Pls.' Motion on Liability, Ex. 3 (Clawson Expert Report) at ¶¶ 23, 38-39, 51 (Iran committed substantial support to fund Hezbollah's acts of "terrorism as an official means of forwarding foreign policy" in the early 1980s).
Second, the record shows that all of the passenger plaintiffs were U.S. citizens at the time of the hijacking, and all but one of the family member plaintiffs were U.S. Citizens at the time of the hijacking. See Pls.' Mot. on Liability, Ex. 4 (Pls.' Decls.) (attaching birth certificates, U.S. passports, and naturalization papers). The family member that was not a citizen herself was married to a U.S. Citizen at the time of the hijacking, and is therefore a claimant whose injuries derive from her citizen husband. See Leibovitch v. Islamic Republic of Iran, 697 F.3d 561, 570 (7th Cir. 2012) ("the plain text and plain meaning of § 1605A(a)(2)(A)(ii) extends jurisdiction to cases where either `the claimant or the victim was, at the time of the [terrorist] act' a United States citizen. The claimant and victim need not both be American citizens.").
Finally, plaintiffs are seeking "money damages . . . against [Iran] for personal injury or death that was caused by an act of torture . . . aircraft sabotage, hostage taking, or the provision of material support or resources for such an act. . . ." FSIA § 1605A(a)(1). In Stethem, Judge Jackson determined that Iran had indeed provided "material support" to Hezbollah and Amal for the hijacking and hostage taking, including funding, training, logistical and weapons support, and professional guidance and tactical expertise. 201 F. Supp. 2d at 87 ("[A]s the Court has previously found in so many similar cases before it, the evidence conclusively establishes that the Islamic Republic of Iran and its MOIS provided `material support or resources' to Hizballah, and Hizballah and its co-conspirator Amal were the perpetrators of these heinous acts of terrorism."). Because the FSIA did not provide an independent federal cause of action at the time of Stethem, plaintiffs had to prove that they met the elements of their D.C. state law claims (in that case, wrongful death and survival claims), and additionally had to prove that the court had jurisdiction under the FSIA. Id. at 87-88.
In 2008, however, Congress replaced § 1605(a) with § 1605A and created a private, federal cause of action against foreign governments in § 1605A(c) so that plaintiffs are no longer required to prove state law claims to secure relief. See Owens, 864 F.3d at 765. However, the causation requirement—that plaintiffs injury result from material support of acts of terrorism—has not changed, and the language in § 1605A(a)(2) largely mirrors the prior language in § 1605(a)(7). Owens, 864 F.3d at 796-99. Most courts have interpreted this so-called "jurisdictional causation" requirement loosely, finding that where a foreign government's support of terrorist activities could be shown generally, plaintiffs need not prove whether the government had "provided material support and resources that caused this particular act." See Shoham v. Islamic Republic of Iran, No. 12-cv-508, 2017 WL 2399454, at *10, 16-17 (D.D.C. June 1, 2017) (internal quotation marks omitted); Owens, 864 F.3d at 794-99 (finding jurisdictional causation where defendant-Sudan provided safe harbor and preferential tax treatment to al Qaeda, despite Sudan's ignorance of al Qaeda's specific plans to launch attacks on US embassies in Africa). Having considered the record evidence in this case, I find, consistent with Judge Jackson's opinion in Stethem, that Iran provided "material support" to terrorist groups Hezbollah and Amal sufficient to meet the requirements of § 1605A(a)(1).
It still remains for me to consider whether the 69 passengers and their families who bring this lawsuit have adequately met the statutory requirement of personal injury in the instant case. § 1605A(a)(1). Having considered the record evidence, I find that they do. As is clear from plaintiffs' declarations, they have all undoubtedly established valid theories of recovery for assault, battery, false imprisonment, and intentional infliction of emotional distress. And even more clear is the fact that "plaintiffs' personal injuries arise from their having been taken hostage and tortured by agents of the defendant[ ]." Stethem, 201 F. Supp. 2d at 91 n. 20.
Plaintiffs' declarations paint a harrowing tale of the events that transpired aboard TWA Flight 847, as well as the conditions of captivity for some passengers for two weeks afterwards in Beirut. Even those only on the aircraft for the first day of the siege were forced to sit for prolonged periods in a crash-landing position; refused access to food and water; prevented from using lavatories; and either subjected to or witness to abuse by their captors. See Pls.' Mot. on Liability, Ex. 2 (Stethem Transcript (Zimmerman Testimony)), at 127:4-10; id., Ex. 4 (Pls.' Decls.), at 6-7, 84-85, 126, 337, 452. This included being "punched, kicked, pistol whipped, sexually assaulted, poked with gun barrels, frisked and robbed, pushed, and/or slapped." Id. at 43 (citing Ex. 4 ("Pls.' Decls.), at 43, 84, 222, 231, 275, 441, 497). Some passengers were also questioned about race, religion, and occupation for the purpose of being singled out for potential execution. Id., Ex. 2 (Stethem Transcript, Suggs Testimony), at 88:1-8, 91:4-6. In many cases, moreover, passengers travelling with family members faced the additional terror of watching close family be subjected to such abuse. Id., Ex. 4 (Pls.' Decls.) at 67-68, 194, 242, 418. And, of course, for about a third of the passengers, the terror did not end with the plane made its final stop in Beirut. Twenty-three male passengers endured an additional two weeks of captivity in Beirut, during which they were subjected to mock executions, threatened, beaten, and held captive in apartments, garages, and basement prisons. Id., Ex. 4 (Pls.' Decls.) at 44, 85, 164, 453, 468, 526.
As for the family member "spouse[s], parents, siblings, and children," Heiser, 659 F. Supp. 2d at 28, their declarations "alleging emotional distress arising from a terrorist attack that killed or injured a family member," clearly satisfy Section 1605A's jurisdictional injury requirement, even though many were not present at the scene. Owens, 864 F.3d at 812 (certifying question of presence requirement for IIED claims to D.C. Court of Appeals); Republic of Sudan v. Owens, 194 A.3d 38, 45 (D.C. 2018) ("We see little need to enforce the presence requirement in IIED cases where the jurisdictional elements of § 1605A are satisfied and the plaintiff's severe distress arises from a terrorist attack that killed or injured a member of his or her immediate family."). Indeed, the "`intent to create maximum emotional impact,' particularly on third parties, is terrorism's raison d'être." Heiser, 659 F. Supp. 2d at 27 (quoting Eisenfeld v. Islamic Republic of Iran, 172 F.Supp.2d 1, 9 (D.D.C. 2000)); Stansell v. Republic of Cuba, 217 F.Supp.3d 320, 344 (D.D.C. 2016) ("Claims for solatium under the FSIA are nearly indistinguishable from claims for intentional infliction of emotional distress.").
Plaintiffs have therefore established all of the jurisdictional requirements laid out by Section 1605A(a).
As stated above, plaintiffs here have submitted voluminous declarations alleging tort claims for assault, battery, false imprisonment, and the intentional infliction of emotional distress., all "well-established principles of law, such as those found in the Restatement (Second) of Torts. . ." Worley, 75 F. Supp. 3d at 335. While the FSIA technically requires plaintiffs "to prove a theory of liability" separate and apart from establishing the elements of subject matter jurisdiction, Owens, 864 F.3d at 807 ("[T]he question whether a statute withdraws sovereign immunity is analytically distinct from whether a plaintiff has a cause of action.") (internal citation omitted), most courts conduct the analysis together, since evidence sufficient to establish jurisdictional causation will almost always establish a theory of "personal injury" necessary to prevail under §1605A(c). See, e.g., Foley v. Syrian Arab Republic, 249 F.Supp.3d 186, 205 (D.D.C. 2017) (finding that plaintiffs were entitled to relief under Section 1605A(c) after proving Section 1605A(a)'s jurisdictional requirements because of the "the overlap between the elements of this cause of action and the terrorism exception to foreign sovereign immunity"); Kilburn v. Islamic Republic of Iran, 699 F.Supp.2d 136, 155 (D.D.C. 2010) (summarily concluding that Section 1605A(c)'s cause of action requirement is satisfied when Section 1605A(a) jurisdiction is found). Because "plaintiffs' personal injuries arise from their having been taken hostage and tortured by agents of the defendants[,]" I need not "belabor the issue of liability by addressing the independent elements of each separate tort claim advanced by [each of] the plaintiffs." Stethem, 201 F. Supp. 2d at 91 n. 20.
Plaintiffs also seek an order awarding compensatory damages. See generally Pls.' Mot. on Damages. A party seeking default damages under the FSIA "must prove damages `in the same manner and to the same extent as any other default winner.'" Estate of Botvin v. Islamic Republic of Iran, 873 F.Supp.2d 232, 243 (D.D.C. 2012) (quoting Wachsman v. Islamic Republic of Iran, 603 F.Supp.2d 148, 160 (D.D.C. 2009)). Plaintiffs may meet this burden of proof by submitting "affidavits or declarations rather than through live witnesses testifying in open court," Belkin v. Islamic Republic of Iran, 667 F.Supp.2d 8, 20 (D.D.C. 2009), which the Court "may accept . . . as true." Lanny J. Davis & Associates LLC v. Republic of Equatorial Guinea, 962 F.Supp.2d 152, 163 (D.D.C. 2013).
While putting a price tag on the pain and suffering of passengers and their families is challenging, Hekmati v. Islamic Republic of Iran, 278 F.Supp.3d 145, 163 (D.D.C. 2017) (recognizing the "challenge aris[ing] in assigning a dollar value to such pain and suffering"), there are, fortunately, a plethora of prior decisions in this Circuit awarding damages for pain and suffering to victims of terrorist attacks. The Special Master here diligently considered these decisions, and devised a framework by which to group plaintiffs' injuries in a way that is both consistent with prior practice and internally consistent between plaintiffs. See Pls.' Mot. on Damages, Addendum A — Recommended Damages, at 6-13. Namely, he considered the severity of the pain immediately following the injury, the lasting and severe psychological problems resulting from the injuries, and the overall length and severity of captivity.
Starting with "the baseline assumption that persons suffering [physical] injuries in terrorist attacks are entitled to $5 million in compensatory damages," Davis v. Islamic Republic of Iran, 882 F.Supp.2d 7, 12 (D.D.C. 2012), and that those who suffer emotional, but no physical injury are typically awarded $1.5 million in damages, see, e.g., Relvas v. Islamic Republic of Iran, Case No. 14-01752, 2018 WL 1092445, *2 (D.D.C. Feb. 28, 2018), the Special Master divided plaintiffs according to the "gravity of harm" as revealed by their "shared experiences." Special Master Report Filed Under Seal [Dkt. # 54] at 9.
For passenger plaintiffs, the Special Master recommended relief under three subcategories: For the 15 passengers ("Group I") who were "forced to sit for prolonged periods in cramped and painful positions; refused access to the lavatories; subjected to unsanitary conditions; denied food and water; and were subjected to or forced to watch mock executions," but were ultimately released within the first day of the hijacking, he awarded $1,000,000. Id. at 9-11. For the 27 passengers ("Group II") who were "subjected to 35 additional hours of the same abuse," and also "faced a possible crash-landing; heard the gunshot that killed a fellow passenger; listened while other passengers were brutally beaten; saw the swollen and bloodied bodies of the terrorists' victims; capitulated to the demands of heavily-armed Amal militia; [were] robbed of their valuables; and watched helplessly as their captors wired the aircraft with plastic explosives," the Special Master awarded $2,000,000. Id. And for the 23 passengers ("Group III") who were held captive in Beirut for an extra two weeks and suffered additional abuse, including being "lined up against a wall—'execution-style'; repeatedly threatened with death; tormented with false promises of release; housed in locations surrounded by exploding shells and mortar fire; confined to rooms with no beds, working toilets or sanitary facilities; supplied with tainted food and water; and bombarded with anti-American propaganda," he awarded $5,000,000. Id.
The Special Master conducted a separate analysis to determine the appropriate baseline loss of solatium for family members whose loved ones "survived a terrorist attack." Oveissi v. Islamic Republic of Iran, 768 F.Supp.2d 16, 26 n. 10 (D.D.C. 2011); see also Wyatt, 908 F. Supp. 2d at 232 (finding loss of solatium framework applied to "cases in which the victim survived a terrorist attack or hostage-taking"). Keeping in mind the principle that family members should not be awarded more than the victim, Special Master Report Filed Under Seal at 13-14, and considering analogous cases in our Circuit, see id. at 14-15, the Special Master recommended solatium awards for family members of victims commensurate with the groups above—for Group I, $660,000 for spouses, $560,000 for parents, $495,000 for children, and $330,000 for siblings; for Group II, $1,330,000 for spouses, $1,112,000 for parents, $990,000 for children, and $660,000 for siblings; and for Group III, $4,000,000 for spouses, $2,500,000 for parents, $1,500,000 for children, and $1,250,000 for siblings. Id. at 15.
Under these circumstances, plaintiffs are thus entitled to compensatory damages in the amounts listed above.
For the foregoing reasons, the Court
