UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
RICHARD PAUL BREWER, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-0534 (ESH)
)
ISLAMIC REPUBLIC OF IRAN, et al., )
)
Defendants. )
___________________________________ )
MEMORANDUM OPINION
On September 20, 1984, a suicide bomber drove a truck packed with explosives through
the gates of the United States Embassy Annex building in East Beirut, Lebanon, killing fourteen
people and wounding thirty-five. The attack was carried out by Hezbollah, a terrorist
organization that operates in Lebanon.1 This action has been brought by a surviving victim of the
attack, Richard Paul Brewer, and his mother, Joyce Louise Leydet. Plaintiffs allege that
defendants, the Islamic Republic of Iran (“Iran”), the Ministry of Information and Security of Iran
(“MOIS”), and the Iranian Revolutionary Guard Corps (“IRGC”), provided “material support and
resources” for Hezbollah’s attack and, therefore, have waived their sovereign immunity under the
“state sponsor of terrorism” exception to the Foreign Sovereign Immunities Act of 1976 (the
“FSIA”), 28 U.S.C. §§ 1602-1611. Plaintiffs argue that defendants, having been stripped of
immunity, are liable under federal law for causing personal injuries. In this motion for default
judgment, plaintiffs are seeking $12 million in compensatory damages for Mr. Brewer, $3.5
1
This organization has several alternate spellings, including “Hizbollah” and “Hizballah.”
million in compensatory damages for Ms. Leydet, and $300 million in punitive damages.2
Plaintiffs initiated this action on March 28, 2008, and effected service on December 7,
2008, in accordance with 28 U.S.C. § 1608(a)(4). Defendants failed to respond, and the Clerk of
Court entered a default on April 6, 2009. Before plaintiffs can be awarded any relief, this Court
must determine whether plaintiffs have established their claims “by evidence satisfactory to the
court.” 28 U.S.C. § 1608(e); see also Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232
(D.C. Cir. 2003).3 In evaluating plaintiffs’ claims, the Court “may accept [plaintiffs’]
uncontroverted evidence as true and may rely on sworn affidavits.” Campuzano v. Islamic
Republic of Iran, 281 F. Supp. 2d 258, 268 (D.D.C. 2003). The Court is not required to hold an
evidentiary hearing, see Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 78 (D.D.C.
2006), and “may take judicial notice of related proceedings and records in cases before the same
court.” Salazar v. Islamic Republic of Iran, 370 F. Supp. 2d 105, 109 n.6 (D.D.C. 2005). Based
on the record herein, and relying upon related cases involving the same incident and defendants,
this Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
I. BACKGROUND
This action arises from the terrorist bombing of the U.S. Embassy Annex building in East
Beirut, Lebanon on September 20, 1984. On that morning, a suicide bomber in a station wagon
2
Mr. Brewer’s wife and sons, who are named as plaintiffs in the complaint, are not
seeking relief in this motion. Accordingly, this Court need not address their claims.
3
This “satisfactory to the court” standard is the same as the standard for entry of default
judgment against the United States under Federal Rule of Civil Procedure 55(e). See Hill v.
Republic of Iraq, 328 F.3d 680, 683-84 (D.C. Cir. 2003).
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drove up a hill toward the Embassy, avoiding several concrete barriers designed to prevent such
an approach. See Wagner v. Islamic Republic of Iran, 172 F. Supp. 2d 128, 132 (D.D.C. 2001).
The driver refused orders to stop and the vehicle was fired upon by Lebanese National Guards
and British bodyguards escorting the British Ambassador. Id. The driver was hit before reaching
the underground garage, which was his presumed destination because it would have caused even
more devastating damage to the building. Id. Nevertheless, the bomb exploded and “demolished
the embassy building,” killing two U.S. servicemen, twelve Lebanese nationals, and wounding
sixty other people. Id.
When the bomb detonated, plaintiff Richard Paul Brewer, a United States Marine, was on
guard duty on the second floor of the compound. (Brewer Decl. ¶¶ 18-19).4 When he heard
gunshots and yelling, he stood up to investigate. (Brewer Decl. ¶ 19.) After hearing more
gunshots and a car engine revving, he headed for the balcony and yelled for people in his vicinity
to get down. (Brewer Decl. ¶ 19.) At the moment he set foot on the balcony, the vehicle outside
exploded. (Brewer Decl. ¶ 20.)
Brewer was knocked unconscious by the blast for 30-45 minutes. (Brewer Decl. ¶ 21.)
When he finally came to, he went to the third floor to look for two of his friends who were also
servicemen at the Embassy–Mike Wagner and Ken Welch. (Brewer Decl. ¶ 23.)5 Brewer found
Welch and Wagner lying on the floor and approached them to offer assistance. (Brewer Decl. ¶
23.) However, he immediately discovered that Welch was dead and Wagner was unconscious
4
At the time, Brewer was known as Richard Paul Leydet. (Brewer Decl. ¶ 3.)
5
As discussed herein, the estates of Wagner and Welch were the plaintiffs in two other
civil actions pertaining to this attack. See Wagner v. Islamic Republic of Iran, 172 F. Supp. 2d
128 (D.D.C. 2001); Welch v. Islamic Republic of Iran, No. 01-863 (D.D.C. 2007).
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and covered with blood. (Brewer Decl. ¶ 23.) As Brewer was thinking of the best way to get
Wagner to safety, Wagner died in front of him. (Brewer Decl. ¶ 23.) Though he “felt a
tremendous shock and sense of rage building up” at the loss of his friends, Brewer seized upon
his training and went back downstairs to help with the rescue effort. (Brewer Decl. ¶¶ 23-24.) In
awarding Brewer the Navy Achievement Medal for his actions in the aftermath of the blast, the
Navy described what happened next.
Despite being badly wounded and badly shaken, Sergeant
[Brewer], with utter disregard for his own safety, courageously
began evacuating the most severely wounded from the dangerous,
unstable building. He then took up a security post outside the
building and refused to be relieved until he was ordered to the
hospital for treatment. Realizing the myriad tasks led [sic] to be
done in the wake of the bombing, Sergeant [Brewer] insisted on
immediately returning to duty, tirelessly assisting his fellow
Marines in the clean up efforts for three sleepless days. Sergeant
[Brewer]’s boundless endurance, deep sense of responsibility, and
selfless dedication to duty reflected credit upon himself and were
in keeping with the highest traditions of the Marine Corps and the
United States Naval Service.
(Brewer Decl. ¶ 27, Ex. A). In addition to the Navy Achievement Medal, Brewer also received a
Superior Honor Award from the United States Department of State (Brewer Decl. ¶ 27, Ex. B)
and a Purple Heart for his injuries. (Brewer Decl. ¶ 27, Ex. C.)
A. Extent of Brewer’s Injuries
Brewer suffered both physical and mental injuries that have persisted to this day. As a
direct result of the attack, Brewer twice lost consciousness (Brewer Decl. ¶ 21) and sustained
numerous cuts, contusions, and lacerations, but no broken bones. (Brewer Decl. ¶ 25.) His
immediate treatment consisted of blood transfusions, intravenous re-hydration therapy, and
stitches. (Brewer Decl. ¶ 26.) After spending three days assisting in the recovery efforts, he was
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airlifted to a U.S. military hospital in Germany where he was treated for intense headaches and
ringing in the ears, symptoms commonly associated with blast injuries. (Brewer Decl. ¶ 28.)
Brewer fulfilled the rest of his military obligations in Quantico, Virginia for another year and was
honorably discharged from the Marine Corps in September 1985. (Brewer Decl. ¶ 29.)
Upon returning home to the United States, Brewer felt anxious, depressed, and jittery so
he isolated himself and became dependent on alcohol. (Brewer ¶ 30.) He was unable to stop
thinking about the friends he lost in the terrorist attack. (Brewer Decl. ¶ 30.) He took some
criminal justice courses in hopes of becoming an FBI or Secret Service agent, but dropped out of
classes because he was bored and restless. (Brewer Decl. ¶ 31.) He then enrolled in the State
Police Academy of Massachusetts and became a State Trooper in 1988, eventually being
promoted to detective. (Brewer Decl. ¶¶ 31-33). In 1990, he married and moved out of his
mother’s home. (Brewer Decl. ¶ 32.)
Despite enjoying his work as a detective, Brewer was drinking heavily and having
problems in his marriage. (Brewer Decl. ¶ 34.) Because of an inability to control his “dangerous
or inappropriate” impulses, he was forced to resign from his job and his marriage ended in a
divorce. (Brewer Decl. ¶ 35.) He found work as a private security guard, but continued to feel
isolated. (Brewer Decl. ¶ 36.) He struggled to resist impulses to use his firearm inappropriately
and worried that minor disputes would cause him to use the weapon. (Brewer Decl. ¶ 36.) For
those reasons, he left the security business and got a degree in special education and history in
1997. (Brewer Decl. ¶ 37.) He had an urge to return to Beirut to teach history, but the
experience was not what he expected. (Brewer Decl. ¶ 38-39.) Brewer left Beirut and upon his
return to United States, he met his current wife. (Brewer Decl. ¶ 38-39.) Brewer now has two
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children and has found work as a high school history teacher in Portland, Maine. (Brewer Decl. ¶
39-40.)
Despite “establish[ing] a normal family life in [his] community,” Brewer has continued to
experience pain and suffering as a result of the terrorist attack in 1984. (Brewer Decl. ¶ 41.) He
still suffers from depression, excessive drinking, lack of impulse control, inability to concentrate,
headaches, and ringing in the ears. (Brewer Decl. ¶ 42.) In the mid-1990's, Brewer was
diagnosed with Post Traumatic Stress Disorder (PTSD) but did not seek serious treatment for it
until 2007 when he realized that he “owed it” to his wife and children. (Brewer Decl. ¶ 45.) He
suffers from constant back pain and migraine headaches although these physical ailments are
secondary to the psychological stress he continues to endure. (Brewer Decl. ¶ 46.) He suffers
from nightmares and must be constantly careful not to let his “inner rage” erupt during minor
confrontations. (Brewer Decl. ¶ 46.) He numbs his pains with alcohol, but is worried that his
behavior is taking its toll on his wife and family. (Brewer Decl. ¶ 47.)
In 2009, Dr. Benjamin C. Grasso, a Board-certified psychiatrist with the Veterans
Administration in Saco, Maine examined Brewer. Dr. Grasso found that Brewer displays
evidence of “hypervigilance,” including darting eyes, checking for exits, exaggerated reactions to
quiet everyday sounds occurring in the outdoor hallway, constant foot tapping, and an overall
sense of restlessness. (Grasso Decl. ¶ 10.) Brewer also continues to endure “hyperarousal,
emotional numbing and avoidance, nightmares, daytime flashbacks, impulsivity, terror mixed
with rage, impaired short term memory, impaired concentration, migraine headaches, lability of
mood, and an inability to enjoy the usual circumstances of family life, social life, and
employment because of [PTSD] and Traumatic Brain Injury.” (Grasso Decl. ¶ 12.) These
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symptoms will never disappear (Grasso Decl. ¶ 13), and Brewer “may be on the verge of
significant further deterioration in functioning or even a break down.” (Grasso Decl. ¶ 14.)
Dr. Edgar Garcia-Rill, a Professor in the Departments of Neurobiology and
Developmental Sciences, and Psychiatry, at the University of Arkansas for Medical Sciences,
reviewed Brewer’s medical records and concluded that Brewer “suffers from severe [PTSD]
which . . . severely limit[s] his ability to enjoy the normal pleasures and satisfactions of everyday
life.” (Garcia-Rill Rep. at 3, attached as Exhibit 6 to Pl.’s Mot.) He shows symptoms of
Traumatic Brain Injury, “which adds to and exacerbates his difficulties.” (Garcia-Rill Rep. at 3.)
His symptoms are further worsened by “survivor’s guilt” [from] discovering the bodies of two of
his closest friends who were [killed] in the blast.” (Garcia-Rill Rep. at 3.) Dr. Garcia-Rill
concluded that “beyond any reasonable doubt, these deficits and impairments are caused by Mr.
Brewer’s exposure to the bomb blast caused by the terrorist attack in Beirut of September 20,
1984.” (Garcia-Rill Rep. at 3.) Brewer’s future is characterized as “severely limited” and the
chances of other illnesses, such as accelerated aging and alcoholism, will increase over time.
(Garcia-Rill Rep. at 3.) Brewer is currently rated as 70% disabled as a result of his PTSD by the
Department of Veterans Affairs. (Garcia-Rill Rep., Ex. C)
B. Extent of Leydet’s Injuries
Joyce Louise Leydet, Brewer’s mother, also seeks damages for her pain and suffering.
She is, and has always been, a United States citizen. (Leydet Decl. ¶ 3.) Richard Brewer was her
youngest of seven children, and Ms. Leydet described him as “joyful” and “happy-go-lucky” in
high school. (Leydet Decl. ¶ 5.) When Ms. Leydet heard the news of the terrorist bombing on
television, she saw images of someone in a marine uniform covered in blood and believed it was
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her son. (Leydet Decl. ¶ 10.) Later that night, a Marine recruiter came to her house and
informed her that Brewer was injured, although he could not describe the nature of his injuries.
(Leydet Decl. ¶ 11.) Leydet recalls this period of not knowing her son’s condition as a “terrible
ordeal of anxiety and worry” for herself and her family. (Leydet Decl. ¶ 13.) Brewer called three
days later to inform his mother that he was wounded but recovering. (Leydet Decl. ¶ 14.) When
Brewer returned from overseas, he “was never really the same” according to Ms. Leydet. (Leydet
Decl. ¶ 16.) He screamed when he heard a car backfire on the street, (Leydet Decl. ¶ 16), was
“moody and silent for long periods,” and seemed “depressed and anxious.” (Leydet Decl. ¶ 17.)
Ms. Leydet describes her life since the bombing as being “saddened and deeply and
negatively impacted by the physical and psychological trauma” inflicted on her son. (Leydet
Decl. ¶ 21.) She “especially feel[s] the loss of [her] happy, healthy young son, who seemed to
have limitless possibilities before him, and who has been replaced by a different Richard who has
to struggle to get through each day.” (Leydet Decl. ¶ 22.) The entire experience has caused her
“deep emotional distress.” (Leydet Decl. ¶ 23.)
CONCLUSIONS OF LAW
I. JURISDICTION UNDER THE FSIA
The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611, is the sole basis for
obtaining jurisdiction over a foreign state in United States. Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 434 (1989). Although it provides that foreign states are generally
immune from jurisdiction in U.S. courts, see 28 U.S.C. § 1604, a federal district court can obtain
personal and subject matter jurisdiction over a foreign entity in the following circumstances.
First, a court can obtain personal jurisdiction over a defendant if the plaintiff properly serves the
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defendant in accordance with 28 U.S.C. § 1608. See 28 U.S.C. § 1330(b). Second, subject
matter jurisdiction exists if the defendant’s conduct falls within one of the specific statutory
exceptions to immunity. See 28 U.S.C. § 1330(a) and 28 U.S.C. § 1604. Here, this Court has
jurisdiction because service was proper and defendants’ conduct falls within the “state sponsor of
terrorism” exception set forth in 28 U.S.C. § 1605A.
A. Service of Process
As this Court explained in Ben-Rafael v. Islamic Republic of Iran:
The FSIA establishes the requirements for proper service
upon a foreign state or a political subdivision of a foreign state. See
Fed. R. Civ. P. 4(j)(1). The FSIA prescribes four methods of
service, in descending order of preference. Plaintiffs must attempt
service by the first method (or determine that it is unavailable)
before proceeding to the second method, and so on. See 28 U.S.C.
§ 1608(a).
The preferred method of service is delivery of the summons
and complaint “in accordance with any special arrangement for
service between the plaintiff and the foreign state.” 28 U.S.C. §
1608(a)(1). If no such arrangement exists, then delivery is to be
made “in accordance with an applicable international convention
on service of judicial documents.” Id. § 1608(a)(2). If neither of
the first two methods is available, plaintiffs may send the
summons, complaint, and a notice of suit (together with a
translation of each into the official language of the foreign state)
“by any form of mail requiring a signed receipt, to be addressed
and dispatched by the clerk of the court to the head of the ministry
of foreign affairs of the foreign state concerned.” Id. § 1608(a)(3).
Finally, if mailed service cannot be accomplished within thirty
days, then the statute permits plaintiffs to request that the clerk of
the court dispatch two copies of the summons, complaint, and
notice of suit (together with a translation of each into the foreign
state's official language) to the Secretary of State, who then “shall
transmit one copy of the papers through diplomatic channels to the
foreign state and shall send to the clerk of the court a certified copy
of the diplomatic note indicating when the papers were
transmitted.” Id. § 1608(a)(4). “Strict adherence to the terms of
1608(a) is required.” Transaero, Inc. v. La Fuerza Aerea
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Boliviana, 30 F. 3d 148, 154 (D.C. Cir. 1994).
540 F. Supp. 2d 39, 52 (D.D.C. 2008).
The first two methods of service are inapplicable to this case because there is no “special
arrangement for service” between the U.S. and Iran, § 1608(a)(1), and Iran is not a party to any
“international convention on service of judicial documents.” § 1608(a)(2).
On June 24, 2008, plaintiffs requested the Clerk of the Court to effect service upon
defendants pursuant to § 1608(a)(3), and the Clerk certified that she performed the requested
mailing on July 10, 2008. However, no certification of service was received within thirty days,
so on September 16, 2008, plaintiffs requested that the Clerk transmit the proper documents to
the State Department for diplomatic service pursuant to § 1608(a)(4).6 On September 29, 2008,
the Clerk certified that she had complied with plaintiffs’ request by mailing the proper
documents to the State Department and requesting that they attempt service upon defendants
through diplomatic channels. On March 26, 2009, the State Department informed the Court that
service had been properly effected upon all three defendants, effective December 7, 2008.7
Defendants did not respond or make an appearance within sixty days, § 1608(d), and the Clerk
entered default on April 6, 2009. Because plaintiffs complied with the requirements of § 1608,
service was proper, and this Court has personal jurisdiction over defendants.
6
On December 1, 2008, after plaintiffs had already initiated service under § 1608(a)(4),
the Clerk received a return receipt indicating that delivery of the original summons and complaint
had been returned as undeliverable.
7
The State Department enlisted the help of the Foreign Interests Section of the Embassy
of Switzerland because the U.S. does not maintain diplomatic relations with the government of
Iran. (See Return of Service Affidavit from the United States Department of State [Dkt. # 14]).
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B. Terrorism Exception to Sovereign Immunity
The “state sponsor of terrorism” exception to sovereign immunity was recently amended
by the enactment of the National Defense Authorization Act for Fiscal Year 2008 (“2008
NDAA”), Pub.L. No. 110-181, 122 Stat. 3, § 1083, which repealed § 1605(a)(7) of Title 28 and
replaced it with § 1605A. This exception strips immunity where:
money damages are sought against a foreign state for personal
injury or death that was caused by an act of torture, extrajudicial
killing, aircraft sabotage, hostage taking, or the provision of
material support or resources for such an act if such act or
provision of material support or resources is engaged in by an
official, employee, or agent of such foreign state while acting
within the scope of his or her office, employment, or agency.
28 U.S.C. § 1605A(a)(1). The key feature of the revised terrorism exception is that it creates a
private federal cause of action against a “foreign state that is or was a state sponsor of terrorism .
. . and any official, employee, or agent of that foreign state . . .” 28 U.S.C. § 1605A(c).8 If
immunity is waived, the Act provides for “economic damages, solatium, pain and suffering, and
punitive damages.” 28 U.S.C. § 1605A(c)(4).
However, before considering whether defendants’ conduct falls within the statute, two
requirements must be met. § 1605A(a)(2). First, the foreign state must have been “designated as
8
Prior to the 2008 NDAA, there was no federal cause of action against a foreign state for
acts of terrorism. The predecessor to the current exception, then codified at § 1605(a)(7), when
read with the Flatow Amendment, § 1605 Note, provided a private right of action against
individual officers, employees, and agents of a foreign state, but not against the foreign state
itself. See Cicipio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1027 (D.C. Cir. 2004),
superseded by 28 U.S.C. § 1605A. To recover damages against a foreign state directly, plaintiffs
had to bring claims based on state law under 28 U.S.C. § 1606, which provides that “the foreign
state shall be liable in the same manner and to the same extent as a private individual under like
circumstances.” Here, plaintiffs asserted state law claims in their complaint, but their motion for
default judgment seeks relief based only on a federal cause of action. Therefore, it is not
necessary to address plaintiffs’ state claims.
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a state sponsor of terrorism at the time of the [terrorist] act.” § 1605A(a)(2)(A)(i)(I). Here, Iran
was formally declared a state sponsor of terrorism on January 23, 1984 in accordance with
section 6(j) of the Export Administration Act of 1979, 50 U.S.C. App. 2405(I). See 49 Fed. Reg.
2836-02 (statement of Secretary of State George P. Shultz). Second, the claimant must have
been “a national of the United States” at the time of the terrorist act. § 1605A(a)(2)(A)(i)(II).
Brewer and Leydet have always been U.S. citizens. Thus, these requirements have been met, and
this Court “shall” hear their claim. § 1605A(a)(2).
For defendants’ conduct to fall within the “state sponsor of terrorism” exception, they
must have participated in an “extrajudicial killing” or provided “material support or resources for
such an act.” § 1605A(a)(1); see also Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d 15, 25
(D.D.C. 2008). If so, immunity is waived and damages are authorized so long as defendants’
actions were a proximate cause of plaintiffs’ injury. § 1605A(c); see also Ben-Rafael, 540 F.
Supp. 2d at 54. Here, plaintiffs alleged both that the bombing by Hezbollah constituted an
“extrajudicial killing” and that defendants provided the “material support and resources” required
to accomplish the bombing.
1. Extrajudicial Killing
Whether this terrorist bombing by Hezbollah constituted an “extrajudicial killing”
warrants little discussion.9 As already determined by two judges of this Court, the attack on the
9
The FSIA refers to the Torture Victim Protection Act of 1991 [“TVPA”] for the
definition of “extrajudicial killing.” See 28 U.S.C. § 1605A(h)(7). The TVPA provides that “the
term ‘extrajudicial killing’ means a deliberated killing not authorized by a previous judgment
pronounced by a regularly constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples. Such term, however, does not include any such
killing that, under international law, is lawfully carried out under the authority of a foreign
nation.” 28 U.S.C. § 1350 Note.
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U.S. Embassy Annex was a “deliberate and premeditated act” that killed fourteen people and
“[t]here is no evidence that it was judicially sanctioned by any lawfully constituted tribunal.”
Wagner, 172 F. Supp. 2d at 134; Welch v. Islamic Republic of Iran, No. 01-863, (D.D.C. 2007)
(Report of United States Magistrate Judge Kay at 15 [hereinafter “Kay Report”] (finding that the
attack “clearly qualifies as an extrajudicial killing”)).
2. Material Support
Similarly, the issue of whether defendants provided material support to Hezbollah in
carrying out the attack on the Embassy Annex has already been decided in Wagner and Welch. In
Wagner, representatives of the Estate of Michael Wagner, a U.S. Navy Petty Officer who was
killed in the attack, sued Iran and MOIS under the FSIA for damages related to Wagner’s death.
Although that case was analyzed under the pre-2008 NDAA “state sponsor of terrorism”
exception, the district court made findings about defendants’ “material support” for the attack.
Wagner, 172 F. Supp. 2d at 133 (applying 28 U.S.C. § 1605(a)(7)). The Court conducted an
evidentiary hearing on plaintiffs’ motion for default judgment, and concluded as follows:
The testimony of retired U.S. Ambassador Robert B.
Oakley and Dr. Patrick L. Clawson, Director of Research at the
Washington Institute for Near East Policy, together with
declassified intelligence materials from the U.S. Department of
State and the Central Intelligence Agency admitted into evidence
by the Court, conclusively establish the identity of the perpetrators
of the September 20, 1984, bombing of the U.S. Embassy in Beirut
. . . to be the militant Islamic fundamentalist Shi‘ite organization
known as Hizballah, the Lebanese organization publicly committed
to the expulsion of the American presence in Lebanon by terrorist
means, as well as to the post-war reincarnation of Lebanon as an
Islamic fundamentalist state. Hizballah, in turn, has been shown to
be an agency or instrumentality of the Iranian MOIS, employed
(somewhat less publicly) by the MOIS to achieve similar ends-by
terrorist means when necessary-as well to establish Iranian
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ascendancy as the premier Islamic patron of the Shi‘a population in
Lebanon.
Id. at 132. The Court therefore found Iran and MOIS liable under the FSIA for the death of Petty
Officer Michael Wagner and assessed over $16 million in compensatory damages and $300
million in punitive damages. Id. at 138.
Six years later in Welch, the Court found Iran and the IRGC liable to the estate of Army
Chief Warrant Officer Kenneth V. Welch for his death in the same terrorist attack. United States
Magistrate Judge Kay held an evidentiary hearing on plaintiffs’ motion for default judgment to
assess whether plaintiffs had produced “evidence satisfactory to the court” to sustain its burden
for a default judgment. Welch, No. 01-863, Kay Report at 6. At that hearing, Dr. Bruce D. Tefft,
a counter-terrorism specialist, testified that “Hezbollah was created by [Iran’s] special committee
on terrorism in 1983, as a sort of wholly-owned subsidiary that was financed, trained, and
equipped by the Iranian government in an effort to influence affairs in Lebanon.” Id. at 10. With
respect to this specific attack, “[s]atellite reconnaissance photographs taken by the United States
government of Lebanon revealed an identical, life-size model of the Embassy Annex in the
training camps in the Beka’a Valley. . . . There was a winding driveway with concrete barriers
and a replica of the building itself. The model was built to use for practice before committing the
actual terrorist attack.” Id. at 12. It was Dr. Tefft’s expert opinion that Iran was responsible for
the attack, and, indeed, as found by the Magistrate Judge, Hezbollah claimed responsibility for
the attack, and Iran takes credit for the actions of Hezbollah. Id. Based on this evidence,
Magistrate Judge Kay concluded “that defendants provided ‘material support or resources’ for
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the ‘extrajudicial killing’ committed at the embassy.” Id. at 15.10
In the present case, plaintiffs have cited the testimony from Wagner and Welch at length,
recognizing that the FSIA does not require this Court to relitigate issues that have already been
settled. Instead, this Court “may take judicial notice of related proceedings and records in cases
before the same court.” See Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229,
263 (D.D.C. 2006). Defendants’ connections to Hezbollah have been explored at length in this
jurisdiction, and it has uniformly been agreed that in the relevant time period, Hezbollah received
substantial funds and support from Iran via its Ministry of Information and Security and the
Iranian Revolutionary Guard Corps. See, e.g., Ben-Rafael, 540 F. Supp. 2d at 47; Dammarell v.
Islamic Republic of Iran,404 F. Supp. 2d 261, 270-71(D.D.C. 2005). The Wagner and Welch
opinions not only illustrate the general connection between Hezbollah and Iran, but also justify a
specific finding that defendants provided support for the 1984 attack on the U.S. Embassy Annex
in Lebanon. Relying on the pleadings and the above findings of other judges in this jurisdiction,
this Court concludes that defendants provided “material support and resources” to Hezbollah in
carrying out the September 20, 1984 attack on the Embassy Annex in East Beirut.
3. Causation
The next question is whether defendants’ support of Hezbollah caused plaintiffs’ injuries.
See 28 U.S.C. § 1605A(c). The causation requirement under the FSIA is satisfied by a showing
of proximate cause. Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123,
1128-29 (D.C. Cir. 2004) (interpreting similar “caused by” language in the previous “state
sponsor of terrorism” exception, § 1605(a)(7)). Proximate cause exists so long as there is “some
10
Judge Kollar-Kotelly, the presiding judge, adopted Magistrate Judge Kay’s report.
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reasonable connection between the act or omission of the defendant and the damages which the
plaintiff has suffered.” Id. (citations omitted). From defendants’ actions of supplying resources
and training to Hezbollah for this attack, it was entirely foreseeable that innocent people would
be killed or injured by the detonation of a van filled with explosives. See Ben-Rafael, 540 F.
Supp. 2d at 54. Thus, the proximate cause test is easily satisfied here.
In sum, subject matter jurisdiction over defendants is proper under § 1605A, and
plaintiffs have provided satisfactory evidence to sustain a cause of action for damages.
II. DAMAGES UNDER THE FSIA
A. Compensatory Damages
Plaintiffs’ motion for default judgment seeks $300 million in punitive damages, $12
million for Brewer’s pain and suffering, and $3.5 million for Leydet’s pain and suffering. The
FSIA authorizes economic, solatium, pain and suffering, and punitive damages against a foreign
state and its officers, employees, or agents. See 28 U.S.C. § 1605A(c). Because Brewer survived
this attack, his claim for pain and suffering should be compared to awards in similar cases where
the plaintiff has survived the attack. See Blais v. Islamic Republic of Iran, 459 F. Supp. 2d 40,
58 (D.D.C. 2006) (“In determining the appropriate amount of compensatory damages, the Court
may look to prior decisions awarding damages for pain and suffering”); Haim v. Islamic Republic
of Iran, 425 F. Supp. 2d 56, 71 (D.D.C. 2006) (outlining the different types of plaintiffs in
terrorism cases). There is no standard recovery amount for surviving victims of terrorist attacks;
instead, “courts typically award a lump sum, and in so doing, articulate several factors as
relevant: the severity of the pain immediately following the injury, the length of hospitalization,
and the extent of the impairment that will remain with the victim for the rest of his or her life.”
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Haim, 425 F. Supp. 2d at 73. For the pain and suffering of relatives who were not present at the
site of the attack, damages “must be determined by the nature of the relationship and the severity
and duration of the pain suffered by the family member.” Id. at 75. The standard award to
parents of survivors of terrorist attacks is $2.5 million in pain and suffering damages, in the
absence of exceptional circumstances. See Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d
25, 52 (D.D.C. 2007).
1. Brewer’s Damages
Brewer, in seeking $12 million in damages, compares the pain and suffering that he
endured, and continues to endure, with two other cases in which a victim survived a terrorist
attack but suffered injuries that will likely last for a lifetime. Brewer argues that an award of $7
million is a “fair minimum” based on Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d
258 (D.D.C. 2003). In that case, the plaintiff Jenny Rubin was awarded $7 million in
compensatory damages against the same defendants for injuries she sustained as a result of a
1997 suicide bombing in a pedestrian mall in Jerusalem. Id. at 261. Ms. Rubin was present at
the scene of the bombing and taken to a hospital, but was soon released because she exhibited
“no obvious physical injuries.” Id. at 265. Presently, “Ms. Rubin has permanent tinnitus, a
constant ringing or buzzing sound, which disrupts concentration and her ability to think and
sleep. As a result, Ms. Rubin’s concentration and memory are permanently impaired.” Id. She
has been diagnosed with “elective mutism, a psychiatric brain condition” and “exhibits common
symptoms of PTSD including paranoia, fear, emotional reactions to news of other terrorist
attacks, and depression.” Id.
At the other end of the spectrum, Brewer asserts that $20 million in compensatory
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damages is a “fair maximum” when comparing his damages to those of Paul Blais, a pilot in the
United States Air Force who was severely injured in the terrorist bombing of a residential
complex in Dhahran, Saudi Arabia in 1996. Blais, 459 F. Supp. 2d at 47. After that attack, Mr.
Blais fell into a coma and then a vegetative state for five weeks. Id. at 59. He “suffered severe
brain trauma and deprivation of oxygen, and had to be given a tracheotomy in order to enable
him to breathe.” Id. He spent four months in the hospital and currently suffers from “diminished
motor skills, short term memory impairment, and has had trouble writing and reading . . . [His]
daily functions remain woefully impaired; he continues to have trouble with his speech, balance,
and coordination.” Id. The Court in Blais awarded $21.8 million in compensatory damages. Id.
Based on the $7 million awarded in Campuzano and the $21.8 million awarded in Blais,
Brewer asserts that $12 million in this case is “justified and well-supported by applicable
precedent.” (Pl.’s Mot. at 23.) However, a review of damage awards in other terrorism cases and
a comparison Brewer’s pain and suffering with the plaintiffs in those other cases suggests that an
award of less than $12 million is appropriate.
Damages of $12 million were awarded in at least two other cases in which the plaintiffs
suffered more severe injuries than Brewer. In Mousa v. Islamic Republic of Iran, the plaintiff
was awarded $12 million for pain and suffering after sustaining severe burns and blast injuries to
her lungs, skull, face, and hand from a suicide bombing of a bus in Israel. 238 F. Supp. 2d 1, 5
(D.D.C. 2001). Ms. Mousa was hospitalized for a month, spent nine days in a rehabilitation
center, and received continuos treatment for three more months. Id. at 5-6. She currently suffers
from “numerous permanent injuries including hearing loss, blindness in one eye, loss of function
in her dominant hand, disfigurement, burn scars, concentration problems, walking difficulties,
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breathing impairment, and PTSD.” Id. at 6-7. In Peterson, a case arising from the 1983 terrorist
bombing of United States Marine barracks in Beirut by Hezbollah, in which 241 American
servicemen were killed, plaintiff Larry Gerlach was awarded $12 million for pain and suffering.
515 F. Supp. 2d at 55. He survived the attack but sustained a broken neck which resulted in
permanent quadriplegia and severe psychological trauma. Id. at 55. While recognizing the
difficulty of quantifying and comparing pain and suffering, Brewer’s injuries do not appear to be
as severe as those sustained by Ms. Mousa and Mr. Gerlach.
The request of $12 million would also appear to be too high when one compares Brewer’s
pain and suffering with the plaintiff in Haim, who was awarded $11 million. There, the plaintiff
survived the terrorist bombing of a bus in Israel in 1995, but “[a]s a result of the explosion,
shrapnel punctured [plaintiff’s] body and skull in several locations, and other parts of his body
were wounded and bleeding. [He] suffered from tremendous pain and a loss of vision.” 425 F.
Supp. 2d at 61. His brain was crushed and his family was originally told that he would not
survive. Id. at 62. He was later determined to have a 77% permanent vision disability, including
complete loss of vision on the left side and a loss of visual memory and spatial recognition. Id.
at 63-4. Among other psychological problems, he suffers from “severe chronic [PTSD],” and “it
is highly unlikely that he will ever obtain a job or live independently.” Id. at 66. Again, without
discounting Brewer’s injuries, he does not appear to have endured as much pain and suffering as
the plaintiff in Haim.
Brewer’s pain and suffering can be compared to cases in which plaintiffs were awarded
damages ranging anywhere from $4 million to $7 million, although his injuries do not fall neatly
within that range. At $4 million in damages, Brewer’s injuries are somewhat similar to those
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sustained by each of two plaintiffs who were shot while trying to apprehend an assassin in New
York. Acosta, 574 F. Supp. 2d at 20. One plaintiff was shot in the leg, suffered “excruciating
pain,” underwent numerous blood transfusions, and had to be hospitalized for over thirty days.
Id. at 23. The second plaintiff was shot in the chest and shoulder while wearing a bulletproof
vest. Id. at 20. He suffered a heart attack shortly after returning to duty and was forced to retire
early. Id. at 23. Each of the Acosta plaintiffs has lingering physical effects and suffers from
severe emotional distress. Id.
At $7 million in damages, Brewer’s pain and suffering is comparable to, if not more
severe than, Ms. Rubin’s pain and suffering in Campuzano. Like Brewer, Ms. Rubin suffers
from ringing in the ears, some memory loss, and PTSD. However, she had no obvious physical
injuries, whereas Brewer lost consciousness twice and required blood transfusions and stitches.
While the above cases suggest that Brewer’s damages could arguably be more than the $7
million awarded in Campuzano, the Peterson case, arising from a similar bombing in Beirut in
1983, complicates the analysis. There, several plaintiffs received awards of $7 million or less for
injuries that are arguably more severe than Brewer’s. Peterson, 515 F. Supp. 2d at 55. For
example, one plaintiff received $7 million in pain and suffering because of a shrapnel wound to
the forehead that destroyed the middle part of his nose, a perforated eardrum, and severe PTSD.
Id. Another plaintiff received $5 million for a broken jaw, severe flesh wounds and scarring on
the arms, legs and face, a loss of teeth, and PTSD. Id. at 54.
As the above cases demonstrate, there is no exact comparison, and, indeed, strict
application of precedent could lead to conflicting conclusions about an appropriate award. This
Court readily acknowledges that it is “undeniably difficult” to assess the amount of compensatory
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damages for the pain and suffering of surviving victims of terrorist attacks, especially where
severe mental anguish is involved. Blais, 459 F. Supp. 2d at 59. Each victim’s suffering is
unique, and, therefore, comparing the severity of the mental anguish endured by one victim to
another is undoubtedly an inexact science. Moreover, it is often difficult to reconcile cases
which have awarded different amounts for seemingly similar injuries.
Since this terrorist attack in 1984, Brewer has battled depression, anxiety, alcoholism, and
many other ailments. Although he is currently married with two children and has a career as a
teacher, the attack continues to hamper his ability to enjoy life’s daily pleasures. He has
experienced severe and permanent pain and suffering and his outlook for the future is described
by physicians as “severely limited.” Taking into account all of these factors and the apparent
permanency of his injuries, this Court finds that Richard Paul Brewer is entitled to $7 million in
compensatory damages for the pain and suffering he has endured as a result of the 1984 terrorist
attack on the U.S. Embassy Annex in East Beirut.
2. Leydet’s Damages
In Peterson, Judge Lamberth set out a framework which provides that a parent of a
serviceman injured in a terrorist attack is ordinarily entitled to $2.5 million. Peterson, 515 F.
Supp. 2d at 52; see also Campuzano, 281 F. Supp. 2d at 276-77 (awarding $2.5 million to each
parent of surviving victims of terrorist attacks). Here, however, Leydet compares her pain and
suffering to the parents in Blais where each parent was awarded $3.5 million. Blais, 459 F.
Supp. 2d at 60. The parents in Blais “experienced anguish” during the three days after the attack
on the Marine barracks because they did not know whether their son was dead or alive. Id. After
learning that their son had survived, the parents’ relationship with Blais “changed drastically”
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and they moved in with their son throughout his rehabilitation process. Id. Blais’ parents have
since “tirelessly devoted themselves to their son’s rehabilitation, with [the mother] acting as Mr.
Blais’ full-time caretaker and nurse,” and have experienced “a great deal of emotional distress as
a result of seeing their son in such a state.” Id.
The award in Blais, however, was characterized in Peterson as “exceptional” because of
the severity of the son’s injuries, his five weeks in a coma and vegetative state, and the fact that
the parents gave up their jobs to take full-time care of their son. Peterson, 515 F. Supp. 2d at 52
n.30 (discussing Blais, 459 F. Supp. 2d at 60). Without discounting the pain and suffering
experienced by Ms. Leydet, the facts here weigh against departing from the standard $2.5 million
award. Although Ms. Leydet, like the parents in Blais, spent several days not knowing the fate of
her son, the evidence she has presented does not indicate that the terrorist attack changed her life
as drastically as the parents in Blais.11 Therefore, an award of $2.5 million is appropriate.
B. Punitive Damages
Prior to the 2008 NDAA, punitive damages were only available against officials,
employees, or agents of a foreign state, but not the foreign state itself. See 28 U.S.C. § 1605
Note (The “Flatow Amendment”) and 28 U.S.C. § 1606; see also Roeder, 333 F.3d at 234 n.2.
The 2008 NDAA repealed this scheme and now expressly provides that punitive damages are
11
Compensatory damages of $3.5 million were also awarded to the father of a surviving
victim of a 1995 terrorist bombing in Israel in Haim. There, the father of Mr. Haim (whose
injuries are described above) was initially led to believe that his son was killed. 425 F. Supp. 2d
at 62. Over the course of his son’s treatment, Mr. Haim lived at a hotel and spent most of his
days at the hospital with his son. Id. at 63. The father “suffered extreme emotional distress due
to the uncertainty of [his son’s] condition” and has “effectively put his own life on hold in order
to care for his son.” Id. at 67. This award also relies on the drastic changes to the parent’s life in
order to care for the child and those circumstances are not present in Ms. Leydet’s case.
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available against officials, agents and employees of a foreign state, as well as the foreign state
itself. 28 U.S.C. 1605A(c). Plaintiffs seek $300 million in punitive damages.12
The Restatement (Second) of Torts provides that punitive damages are intended “to
punish [a defendant] for his outrageous conduct and to deter him and others like him from
similar conduct in the future.” RESTATEMENT (SECOND ) OF TORTS § 908(1) (1977). To
determine the proper amount of punitive damages, courts consider four factors: “(1) the character
of the defendant’s act, (2) the nature and extent of harm to the plaintiffs that the defendants
caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.”
Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 32 (D.D.C. 2008) (citing RESTATEMENT
(SECOND ) OF TORTS § 908(1)-(2) (1965)). In similar terrorism cases against these defendants,
courts in this district have typically applied a “formula of three times defendant Iran’s annual
expenditure on terrorism.” Acosta, 574 F. Supp. 2d at 31. In prior cases, expert testimony has
established that during the relevant time period, Iran’s annual expenditures on terrorism were $50
to $150 million, resulting in typical punitive damage awards of $300 million. Id. (citations
omitted). In Wagner, the Court followed this standard formula and assessed $300 million in
punitive damages. Wagner, 172 F. Supp. 2d at 138.
12
In their motion for entry of default judgment, it is unclear whether plaintiffs seek $300
million in punitive damages against each defendant for a total of $900 million or jointly and
severally against all three defendants for a total of $300 million. However, punitive damages in
terrorism cases are typically awarded jointly and severally regardless of how many defendants are
named and eligible to pay punitive damages. See, e.g., Acosta, 574 F. Supp. 2d at 31 (assessing
punitive damages against Iran and MOIS “jointly and severally”); Stern v. Islamic Republic of
Iran, 271 F. Supp. 2d 286, 301 (D.D.C. 2003) (four defendants held “jointly and severally” liable
for $300 million instead of each being subject to a separate $300 million penalty). Therefore, the
motion will be read as seeking punitive damages for plaintiffs and against defendants Iran,
MOIS, and the IRGC, jointly and severally, in the amount of $300 million.
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There is no reason to depart from settled case law regarding the amount of punitive
damages in terrorism cases. Taking into account the Restatement factors and the nature of the
attack, this Court finds defendants Iran, MOIS, and the IRGC to be jointly and severally liable for
punitive damages in the amount of $300 million.
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for default judgment is GRANTED and the
Court enters judgments in the amounts specified above. A separate Order and Judgment
accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: October 15, 2009
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Brewer v. Islamic Republic of Iran
Combined Opinion