Holland v. Islamic Republic of Iran, Civil Action No. 01-1924(CKK).

• Decision Date: 31 October 2005
• Docket Number: Civil Action No. 01-1924(CKK).
• Citation: 496 F.Supp.2d 1
• Parties: Donna Marie HOLLAND, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

496 F.Supp.2d 1

Donna Marie HOLLAND, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

Civil Action No. 01-1924(CKK).

United States District Court, District of Columbia.

October 31, 2005.

COPYRIGHT MATERIAL OMITTED

Paul Gaston, Law Offices of Paul G. Gaston, Washington, DC, Joshua M. Ambush, Baltimore, MD, for Plaintiffs.

MEMORANDUM OPINION

KOLLAR-KOTELLY, United States District Judge.

"May the days flow sweetly with music to your ears and may your time be spent knowing that the love you have given me shall never become dull in the wind."

— Robert Holland, August 1983 letter to his wife

This action arises from the most deadly state-sponsored terrorist attack against American citizens prior to September 11, 2001 — the October 23, 1983 Marine barracks bombing in Beirut, Lebanon, during which 241 American servicemen acting as part of a multinational U.N.authorized peacekeeping force were murdered in their sleep by a suicide bomber. Twenty-eight year-old Petty Officer Robert S. Holland, son of Charles and Rosemary Holland, brother of Patrick Holland, husband of Donna Marie Holland,¹ and father of James Robert and Chad Phillip Holland (collectively, "Plaintiffs"), was one of these unfortunate victims, killed while serving his country and upholding the greater cause of regional peace and stability. Due to the nature and force of the explosion, the Holland family suffered through two more agonizing weeks of waiting until Robert Holland was conclusively identified as "killed in action." The memory of this horror continues to this day for the Holland family, who — in order to obtain some form of compensation, however small, for their tragic loss — brought this action against the Islamic Republic of Iran ("Iran"); the Iranian Ministry of Information and Security ("MOIS"); the Iranian Islamic Revolutionary Guard Corps ("IRGC"); Hezbollah, Muhsin Rafiq-Dust, former Commander-in-Chief of the IRGC; Ali Akbar Hashemi-Rafsanjani, former Speaker of the Majlis of Iran; Mohammad Rayshari, former Minister of the MOIS; and Ali Akbar Mohtashemi, former Interior Minister of Iran and former Iranian Ambassador to Syria (collectively, "Defendants").

On January 19, 2005, this Court conducted a bench trial to determine the liability of Defendants for this cowardly and inhumane act. Having reviewed the extensive evidence presented during trial by both lay and expert witnesses, the Court concludes that Plaintiffs Donna, James, and Chad Holland have established their right to obtain judicial relief against Defendants Iran, the MOIS, and the IRGC. The Court's findings of fact and conclusions of law are set forth below.

I: PROCEDURAL BACKGROUND

Finally provided a jurisdictional avenue with which to obtain redress for their loss when Congress altered the traditional parameters of the Foreign Sovereign Immunities Act ("FISA"), 28 U.S.C. § 1604, through the 1996 enactment of Section 1605(a)(7) to the FISA, see Pub.L. No. 104-132, Title II, § 221(a), Apr. 24, 1996, 110 Stat. 1241 (codified at 28 U.S.C. § 1605(a)(7), and the so-called "Flatow Amendment," see Omnibus Consolidated Appropriations Act of 1997, Pub.L. No. 104-208, Div. A, Title I, § 101(c)) [Title V, § 589], 110 Stat. 3009-172 (codified at 28 U.S.C. § 1605 note), Plaintiffs filed a Complaint in the above-captioned action on September 13, 2001. Plaintiffs then served the required number of copies of the Notice of Suit, Complaint, and Summons along with their respective translations to Iran, the MOIS, and the IRGC, as required by 22 C.F.R. 93 and 28 U.S.C. § 1608(a)(3). After service was executed and these three defendants failed to respond within the required time period, Plaintiffs moved for a default judgment on December 9, 2002. The Court granted Plaintiffs' Motion for Entry of Default against these three defendants on June 3, 2003. However, given Plaintiffs' stated desire to amend their Complaint, the Court vacated the entry of default, permitted Plaintiffs to file their First Amended Complaint, and ordered that Plaintiffs reserve Defendants.

After some problems with service, Plaintiffs successfully effectuated service pursuant to 28 U.S.C. § 1608(3) and § 1608(4) against Defendants Iran, the MOIS, and the IRGC in early 2004. Once again, these defendants failed to respond within the required time period. After Plaintiffs filed a Motion for Entry of Default and an Affidavit supporting that motion, the Clerk of this Court entered default against Iran, the MOIS, and the IRGC on March 16, 2004. This Court subsequently approved the entry of default on March 22, 2004. However, despite the entries of default, the Court is required to make a further inquiry prior to entering any judgment against defendants. Indeed, the FSIA mandates that "[n]o judgment by default shall be entered by a court of the United States or of a State against a foreign state ... unless the claimant establishes his claim or right to relief by evidence that is satisfactory to the Court." 28 U.S.C. § 1608(e); see also Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 6 (D.D.C. 1998); Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46, 48 (D.D.C.2003). "In evaluating the plaintiffs' proof, the court may `accept as true the plaintiffs' uncontroverted evidence.'" Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 268 (D.D.C.2003) (quoting Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.2000)). Plaintiffs' evidence may take the form of sworn affidavits. Id. (citing Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 19 (D.D.C.2002)).

During this time period, the D.C. Circuit issued a decision in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C.Cir.2004), holding that "neither 28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two considered in tandem, creates a private right of action against a foreign government," id. at 1033. Given the obvious implications of the Cicippio-Puleo decision for this case, the Court issued an Order on March 31, 2004 inviting briefing from Plaintiffs regarding the issues raised by that decision and the continuing viability of their claims. In responding to the Court's Order, Plaintiff's submitted a Memorandum of Law regarding the Cicippio-Puleo decision on April 9, 2004, and provided supplements including additional authority in support of their position on August 31, 2004, and September 13, 2004. A trial date in this action was then set for January 19, 2005, and — as directed — Plaintiffs submitted a Memorandum in Support of Their Causes of Action on January 5, 2005. At trial, Plaintiffs presented two expert witnesses: Dr. Bruce Tefft, an expert in counter-terrorism, and Dr. Jerome S. Paige, an expert on projected economic losses in cases of wrongful death. Plaintiffs also presented four lay witnesses in support of their claims: Donna Holland, Rosemary Holland, Charles Holland, and. Pat Holland.

Following the trial on January 19, 2005, given concerns raised by yet another recent FISA-related decision by the D.C. Circuit, Acree v. Republic of Iraq, 370 F.3d 41 (D.C.Cir.2004), which held that plaintiffs cannot state a right of action under the "generic common law" or merely "allude[] to the traditional torts ... in their generic form" but instead must "identify a particular cause of action arising out of a specific source of law," id. at 58-59 (quotation omitted), this Court ordered that

in addition to Plaintiffs planned section of [their post-trial] brief dealing with federal common law, Plaintiffs shall also include a discussion of (1) whether the relevant probate statute governing the administration of decedent's estate allows for the recovery of economic damages under a wrongful death action, and (2) whether the state in which each Plaintiff-claimant resides allows for the collection of damages under solatium for a person of their status in relation to the decedent.

Holland v. Islamic Republic of Iran, Civ. No. 01-1924 (D.D.C. Jan. 19, 2005) (minute order requiring further briefing). Plaintiffs, pursuant to the Court's Order, concluded the briefing in this matter with their Post-Trial Brief submitted on February 18, 2005.

II: FINDINGS OF FACT

After listening to the testimony in the case, reviewing the evidentiary record, personally observing the demeanor and credibility of the witnesses, and making all reasonable inferences to be drawn therefrom in accordance with the Federal Rules of Evidence, the Court sets forth the following findings of fact.

A. Historical Background

The Republic of Lebanon is a small, largely mountainous country of approximately 3,800,000 people situated at the eastern edge of the Mediterranean Sea, bordered by Syria on the east and north, and Israel on the south, with a narrow coastline on its west. While Lebanon is one of fifteen present-day countries that comprise what is considered to be "the Cradle of Humanity," Lebanon did not become an independent nation until November 22, 1943, having completed the League of Nations mandate process begun after the disintegration of the Ottoman Empire in World War I. Unlike its regional neighbors, Lebanon did not participate militarily in the 1967 and 1973 Arab-Israeli wars. During this time period, Lebanon was known as "the Switzerland of the Middle East," with its gleaming capital, Beirut, labeled "the Paris of the Middle East" given its wide boulevards, French-style architecture, and modernity.

Unfortunately, by the early 1970s, Lebanon had become increasingly destabilized due to the influx of Palestinian refugees; by 1973, approximately one out of every ten persons living in Lebanon was a Palestinian refugee, many of whom supported the efforts of the Palestine Liberation Organization ("PLO") against Israel. From bases in southern Lebanon, some of these refugees engaged in guerilla warfare against Israel, leading to reprisals by Israel against these Palestinian strongholds beginning in 1968. In April 1975, full-scale civil...