Terrorism Claims Require a U.S. Nexus

Once a foreign state’s immunity has been lifted under Section 1605 and jurisdiction is found to be proper, Section 1606 provides that “the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 1606. Section 1606 thus acts as a “pass-through” to substantive causes of action that may exist in federal, state or international law. Plaintiff’s complaint asserts three substantive causes of action-for wrongful death, loss of solatium, and intentional infliction of emotional distress. The Court will examine the basis for each in turn….

Plaintiff Amir Reza Oveissi invokes the [FSIA]’s “state-sponsored terrorism” exception, which requires, inter alia, that “the victim or plaintiff was a U.S. national when the acts took place.” Facially, then, the “state-sponsored terrorism” exception permits plaintiff-who, as a United States citizen, is also a U.S. national-to sue for injuries he suffered as a result of his grandfather’s death, regardless of his grandfather’s nationality. Due to the unique nature of wrongful death claims, however, this particular cause of action is unavailable to him. Wrongful death is a creature of statute unknown to the common law.

The British Parliament enacted the first wrongful death statute, known as Lord Campbell’s Act, in 1846. … In relevant part, this statute provided ‘that for the benefit of certain near relatives who had suffered pecuniary loss from the death of a person, the personal representatives should have a cause of action against the one who tortiously caused the death, provided that the deceased would have had a cause of action if he had been merely injured and not killed.’ Damages were assessed based on the decedent’s probable contributions to the beneficiaries during his expected lifetime, and the beneficiaries divided any recovery in proportion to their losses. Nearly every U.S. state has enacted its own wrongful death statute, and often, these statutes’ provisions closely parallel those of the original….

Article III of the United States Constitution provides that federal courts’ judicial power shall extend to, inter alia, controversies “between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.” U.S. Const. art. III § 2. This provision, known as alienage jurisdiction, conspicuously excludes any provision for suits between foreign states, citizens, or subjects. Yet Article III also confers jurisdiction over cases “arising under … the Laws of the United States.” U.S. Const. art. III § 2. As the Supreme Court has recognized, because Congress has “enact[ed] a statute [the FSIA] comprehensively regulating the amenability of foreign nations to suit in the United States,” actions against foreign sovereigns “arise[ ] under federal law, for purposes of Art. III. jurisdiction.” Though cases solely between foreign nationals “are outside the constitutional grant of power, Sadat, 615 F.2d at 1183, the Court has held that when it enacted the FSIA, Congress intended to permit suits between foreign nationals and foreign states in U.S. courts under limited circumstances. Verlinden B.V., 461 U.S. at 490. Congress was aware of the concern that “our courts [might be] turned into small ‘international courts of claims[,]’ … open … to all comers to litigate any dispute which any private party may have with a foreign state anywhere in the world.” As the language of the statute reveals, Congress protected against this danger not by restricting the class of potential plaintiffs, but rather by enacting substantive provisions requiring some form of substantial contact with the United States. Here, however, not only would a suit brought by Gholam Ali Oveissi against Iran and MOIS violate the “state-sponsored terrorism” exception’s explicit terms, but it would also involve virtually no contact whatever with the United States. Rather, it would ask a United States court to apply foreign law in a suit against a foreign sovereign concerning injury, abroad, to a foreign national never domiciled in this country. Hence, it would lack the substantial U.S. connection that Congress deemed necessary to ensure the FSIA did not transform United States courts into “ ‘international courts of claims.’…

Plaintiff’s effort to hold Iran accountable for its sponsorship of terrorist crimes reflects great steadfastness of character, and the Court commends his courage in pursuing this litigation. The Court has found defendants Iran and MOIS culpable in the brutal murder of plaintiff’s grandfather, Gholam Ali Oveissi. Sadly, however, damages are unavailable to plaintiff under the laws of the United States.