Kapar v. Islamic Republic Iran, Case No. 02–cv–00078 HHK

• Decision Date: 22 May 2015
• Docket Number: Case No. 02–cv–00078 HHK
• Citation: 105 F.Supp.3d 99
• Parties: Charles Kapar, Plaintiff, v. Islamic Republic of Iran, et al., Defendants.
• Court: U.S. District Court — District of Columbia

105 F.Supp.3d 99

Charles Kapar, Plaintiff,

v.Islamic Republic of Iran, et al., Defendants.

Case No. 02–cv–00078 HHK

United States District Court, District of Columbia.

Signed May 22, 2015

Andrew W. Cohen, Koonz, McKenney, Johnson, Depaolis and Lightfoot, LLP, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

Charles Kapar was a passenger on a Kuwait Airways jet that was hijacked in 1984. He sustained serious injuries when he was beaten and tortured during the hijacking. In September 2004, the Court awarded Kapar a $13.5 million default judgment under 28 U.S.C. § 1605(a)(7)—the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act—on his claim against Iran and the Iranian Ministry of Information and Security for their role in the hijacking. Iran and the Ministry have never entered an appearance in this case or paid any part of the judgment. Kapar did, however, recover almost $2.2 million under the Victims of Violence and Trafficking Protection Act of 2002. Mot. to Amend J. at 5 n.15.

In 2008, four years after Kapar received his judgment, Congress repealed Section 1605(a)(7)and replaced it with 28 U.S.C. § 1605A. Section 1605Aintroduced a number of benefits for victims of state-sponsored terrorism, including a provision making it easier to execute judgments against foreign state assets. In order to take advantage of these changes, Kapar now moves to amend his judgment pursuant to Rule 60(b)(5) and (6) of the Federal Rules of Civil Procedure. He requests that his prior judgment be given effect as though it has been issued pursuant to Section 1605A.

The Court will deny the motion to amend the judgment. The D.C. Circuit has read Section 1605Ato apply to claims originally brought under 28 U.S.C. § 1605(a)(7)only if such claims were pending, or were related to a case that was pending, when Section 1605Awas passed. SeeRoeder v. Islamic Republic of Iran,646 F.3d 56, 61 (D.C.Cir.2011). Kapar acknowledges that his claim, which resulted in a final judgment four years prior to the passage of Section 1605A, does not qualify. He nevertheless seeks an amended judgment expanding his relief. Rule 60(b), however, cannot be used to circumvent Congress' express limitations on the effect of 28 U.S.C. § 1605A, at least absent extraordinary circumstances not present here. Kapar also requests an order under 28 U.S.C. § 1610(c)allowing him to attach Iranian assets to satisfy his original judgment. The Court finds that Kapar has met the requirements of that section and will issue an order accordingly.

I. Background

Understanding Kapar's claim requires some background on former 28 U.S.C. § 1605(a)(7), the problems encountered by plaintiffs bringing suit under that provision, and Congress' response in Section 1605A. In 1996, Congress amended the Foreign Sovereign Immunities Act (“FSIA”) to provide for the waiver of foreign sovereign immunity in claims brought against countries that the State Department had officially designated as state sponsors of terrorism. 28 U.S.C. § 1605(a)(7)(repealed). The so-called “state sponsor of terrorism” exception to the FSIA applied if the country was found to have provided “material support or resources” for terrorist acts. Id.As originally enacted, the statute did not make clear whether it merely granted jurisdiction over a foreign state or also created a private right of action against states or state officials. Congress attempted to clarify this ambiguity in 1997 by passing the Flatow Amendment, which provided that an “official, employee, or agent of a [designated state sponsor of terrorism]” shall be liable to U.S. citizens for injuries resulting from actions taken in the scope of official duty. Omnibus Consolidated Appropriations Act, Pub.L. No. 104–208, § 589, 110 Stat. 3009–1, 3009–172 (1996) (codified at 28 U.S.C. § 1605note).

Many victims of state-sponsored terrorism sought and received monetary awards under the Flatow Amendment, but a number of practical and legal obstacles made it difficult to collect on their judgments.

First, the D.C. Circuit substantially limited the ability of plaintiffs to bring claims under the Flatow Amendment in Cicippio–Puleo v. Islamic Republic of Iran,353 F.3d 1024 (D.C.Cir.2004). The court held that FSIA merely grants jurisdiction and that the Flatow Amendment added a private right of action only against officials, employees, and agents of a foreign state in their personal capacities, and not against the state itself or state officials in their official capacities. Id.at 1027–34. As a result of Cicippio–Puleo,many plaintiffs—including Kapar—began bringing claims under state tort law, using FSIA as a basis for jurisdiction. In re Islamic Republic of Iran Terrorism Litigation (“Iran Terrorism Litigation”),659 F.Supp.2d 31, 52–53 (D.D.C.2009)(collecting cases).

For those plaintiffs who succeeded in obtaining state law judgments against Iran, a further difficulty arose in satisfying those judgments because property held by foreign sovereigns is generally immune from attachment and execution absent a waiver of foreign sovereign immunity. A complex interplay of statutes and executive orders also prevented what little property most foreign states have in United States from being attached. See generallyid.at 49–55(discussing the many hurdles faced by plaintiffs in enforcing judgments). Until 2008, the only exception was limited to “property relating to the commercial activities of the foreign sovereign.” Id.at 52–53. As a result, most plaintiffs found it difficult or impossible to enforce judgments against Iran. SeeEisenfeld v. Islamic Republic of Iran,172 F.Supp.2d 1, 9 (D.D.C.2000).

In 2008, Congress repealed Section 1605(a)(7)through the passage of Section 1083 of the National Defense Appropriations Act (“NDAA”), and replaced it with 28 U.S.C. § 1605A. Pub.L. No. 110–181, § 1083, 122 Stat. 3, 338–44 (2008). Although the scope of the waiver of foreign sovereign immunity is identical under both sections, Section 1605Aprovided a number of substantive rights and remedies that were previously unavailable to plaintiffs under Section 1065(a)(7). Two provisions are particularly relevant to this case. First, 28 U.S.C. § 1605A(c)creates an express cause of action against state sponsors of terrorism, effectively “abrogat[ing]” the D.C. Circuit's decision in Cicippio–Puleo. Gates v. Syrian Arab Republic,646 F.3d 1, 3 (D.C.Cir.2011). Second, Section 1605Afacilitates satisfaction of judgments by making additional property of a state, agency, or instrumentality “subject to attachment in aid of execution, or execution, under [28 U.S.C. § 1610].” 28 U.S.C. § 1605A(g)(1).

Congress also allowed for application of Section 1605Ato cases originally brought under Section 1605(a)(7)in two ways. First, NDAA § 1083(c)(2) provides that a claim brought under Section 1605(a)(7)that was “before the court[ ] in any form” at the time Section 1605Awas enacted shall “be given effect as if the action had originally been filed under” the new section. NDAA § 1083(c)(2)(A). Second, NDAA § 1083(c)(3) provides that “[i]f an action arising out of an act or incident has been timely commenced under section 1605(a)(7)..., any other action arising out of the same act or incident may be brought under section 1605A.” NDAA § 1083(c)(3). The D.C. Circuit has read this language “to refer only to those cases timely commenced under § 1605(a)(7)that were still pending when [Section 1605A] was passed.” Roeder,646 F.3d at 61. In either case the plaintiff must file his or her claim no later than 60 days after the entry of judgment on the prior or pending claim or the passage of 1605A, whichever is later. NDAA §§ 1083(c)(2)(C), (c)(3).

II. Legal Standard

Kapar seeks relief under either Rule 60(b)(5) or 60(b)(6). Rule 60(b)(5)authorizes the court to vacate or amend a judgment when “applying [the judgment] prospectively is no longer equitable.” Fed.R.Civ.P. 60(b)(5). Rule 60(b)(6)is a catch-all provision that authorizes the court to amend a judgment for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). Decisions to grant or deny a motion under Rule 60(b)are left to the sound discretion of the district court and are reviewed for abuse of discretion. Twelve John Does v. District of Columbia,841 F.2d 1133, 1138 (D.C.Cir.1988)(reversing the district court's decision to grant a Rule 60(b)motion). The moving party bears the burden of satisfying the requirements of Rule 60(b). Id.

III. Analysis

Kapar acknowledges that he is unable to file a new claim under either avenue in NDAA § 1083(c). Mot. to Amend J. at 4–5. He nonetheless argues that Congress' intent to facilitate the attachment of Iranian assets and the defendants' failure to satisfy the award justify modifying his judgment under either Rule 60(b)(5) or 60(b)(6).

A. Relief Under Rule 60(b)(5)

Rule 60(b)(5)allows a court to amend “any judgment that has prospective effect.” 11 Wright & Miller, Fed. Prac. & Proc. Civ. § 2863. A judgment is “prospective” if it is either “executory” or involves “the supervision of changing conduct or conditions.” Twelve John Does,841 F.2d at 1139. The consensus among Courts of Appeal, including the D.C. Circuit, is that a claim for money damages is not “prospective” for the purposes of Rule 60(b)(5). Id.at 1138; accordMarshall v. Board of Ed., Bergenfield, N.J.,575 F.2d 417, 425 (3d Cir.1978)(collecting cases holding that Rule 60(b)(5)does not apply to judgments for money damages).

Kapar has not satisfied Rule 60(b)(5)'s requirement that his judgment have prospective application. His judgment is for damages stemming from past conduct—the opposite of prospective relief. The fact that most of the judgment remains unsatisfied does not mean the judgment involves “the supervision of changing conduct or conditions.” Twelve John Does,841 F.2d at 1139. In Twelve John Does,the D.C. Circuit recognized that almost every court order, even a claim for money damages, has some “reverberations...