United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2002 Decided January 17, 2003
No. 01-7147
Amy Bettis, et al.,
Appellants
v.
Islamic Republic of Iran and
Iranian Ministry of Information and Security,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 00cv00549)
Steven R. Perles argued the cause for appellants. With
him on the briefs was Thomas F. Fay.
Abigail V. Carter argued the cause for amicus curiae in
support of affirmance. With her on the brief were Steven H.
Goldblatt, appointed by the court, Lyndsy B. Rutherford, and
Stephanie Cotilla.
Before: Edwards, Rogers, and Garland, Circuit Judges.
Opinion for the Court Filed by Circuit Judge Edwards.
Edwards, Circuit Judge: In 1985, Father Lawrence M.
Jenco, an ordained Catholic priest who was working as the
Director of Catholic Relief Services in Beirut, Lebanon, was
abducted by Hizbollah, the Islamic terrorist organization.
Hizbollah held Fr. Jenco captive for 564 days, and subjected
him to near-constant blindfolding, beatings, and psychological
torture. Even after Fr. Jenco's release, he remained under-
weight and weak for a long period, had a changed disposition,
and would suffer "flashbacks" to his kidnapping and torture.
After Fr. Jenco's death, his estate and family members sued
the Islamic Republic of Iran, which had "provided support,
guidance, and resources to Hizbollah" in connection with Fr.
Jenco's abduction. Jenco v. Islamic Republic of Iran, 154
F. Supp. 2d 27, 31 (D.D.C. 2001). The District Court upheld
the claims of Fr. Jenco's estate and his six siblings, awarding
over $314 million in compensatory and punitive damages for
battery, assault, false imprisonment, and intentional infliction
of emotional distress suffered by Fr. Jenco and for intentional
infliction of emotional distress suffered by the siblings. The
District Court rejected the claims of Fr. Jenco's 22 nieces and
nephews, however. The nieces and nephews now appeal.
We affirm the judgment of the District Court, because the
nieces and nephews are not members of Fr. Jenco's immedi-
ate family. See Restatement (Second) of Torts s 46(2)(a).
I. Background
A. Father Jenco's Abduction and Captivity
Shortly before 8:00 a.m. on January 8, 1985, five armed
men abducted Fr. Jenco as he was on his way to the office of
Catholic Relief Services in West Beirut, Lebanon. Hizbollah
carried out the kidnapping as part of a widespread terrorist
campaign that it conducted during the 1980s. This campaign
targeted journalists, university professors, members of the
clergy, and United States servicemen. See, e.g., Wagner v.
Islamic Republic of Iran, 172 F. Supp. 2d 128, 131-32 (D.D.C.
2001) (detailing the murder of a Navy officer stationed in
Beirut by a Hizbollah suicide bomber); Sutherland v. Islamic
Republic of Iran, 151 F. Supp. 2d 27, 30-38 (D.D.C. 2001)
(detailing Hizbollah's kidnapping, detention, and torture of an
American academic in Beirut); Polhill v. Islamic Republic of
Iran, No. 00-1798 (TPJ), 2001 U.S. Dist. LEXIS 15322, at *2-
*7 (D.D.C. Aug. 23, 2001) (same); Anderson v. Islamic Re-
public of Iran, 90 F. Supp. 2d 107, 109-11 (D.D.C. 2000)
(detailing Hizbollah's kidnapping, detention, and torture of an
American journalist in Beirut); Cicippio v. Islamic Republic
of Iran, 18 F. Supp. 2d 62, 63-66 (D.D.C. 1998) (detailing
Hizbollah's kidnapping, imprisonment, and torture of three
male U.S. citizens).
As Hizbollah's prisoner, Fr. Jenco was subjected to inhu-
mane conditions. The District Court described his treatment
at some length:
From the moment he was abducted, Father Jenco
was treated little better than a caged animal. He
was chained, beaten, and almost constantly blind-
folded. His access to toilet facilities was extremely
limited, if permitted at all. He was routinely re-
quired to urinate in a cup and maintain the urine in
his cell. His food and clothing were spare, as was
even the most basic medical care.
He also withstood repeated psychological torture.
Most notably, at one point, his captors held a gun to
his head and told him that he was about to die. The
captors pulled the trigger and laughed as Father
Jenco reacted to the small click of the unloaded gun.
At other times, the captors misled Fr. Jenco into
thinking he was going home. They told him to dress
up in his good clothes, took pictures of him, and then
said "ha, ha, we're just kidding."
Jenco, 154 F. Supp. 2d at 29.
Fr. Jenco's imprisonment also caused great suffering
among his family members:
While Father Jenco was being held prisoner, his
many siblings and relatives banded together and
fought for his release. The family made a practice
of meeting every Monday night to discuss what
steps they could take to help secure his release.
Family members took on various responsibilities,
such as communicating with the public, dealing with
the media, maintaining contact with the State De-
partment, and raising money to cover the various
costs of such a massive effort.
Andrew Mihelich and John Jenco, both nephews
of Fr. Jenco, testified that, because of their massive
dedication to free Fr. Jenco, the whole family, in
effect, became a hostage in one way or another. As
a result, many of the traditional family events, such
as birthdays, graduations, or religious holidays were
overshadowed - or overlooked altogether - on ac-
count of the campaign to free Fr. Jenco. Apart
from the campaign, the family felt the very personal
loss of not having their beloved relative at many
family milestones, such as weddings, births, and
baptisms. On the whole, according to John Jenco,
the family spent the 19 months of Fr. Jenco's captiv-
ity on an emotional roller coaster, never knowing
how close or far Fr. Jenco was to being released, not
to mention returning home unharmed.
Jenco relatives also testified as to the specific
effects that the captivity had o[n] Fr. Jenco's broth-
er, John Jenco. John Jenco Jr. testified that, from
the first day of captivity to the last day of his own
life, John Jenco Sr. was distraught in a way he had
never been before. He was able to celebrate the
return of Fr. Jenco, but was never fully able, accord-
ing to John Jenco Jr., become himself again. Simi-
larly, Joseph Jenco testified that the stress of the
captivity on Verna Mae Mihelich likely was a factor
in her premature death.
Id. at 31-32. The trial court also found that
there is significant evidence of emotional distress
among the siblings. Joseph Jenco, Fr. Jenco's
brother testified as to the great strain the captivity
imposed on himself as well as his brothers and
sisters.... As well, other witnesses testified as to
the stressful and extensive publicity campaign ...;
the stress of false alarms that Fr. Jenco had been
killed or freed ...; and constant fear that the
campaign to free Fr. Jenco might also end up hurt-
ing him and the other hostages.
Id. at 35.
After Fr. Jenco's release, "he returned to the United States
and served as a parish priest until his death on July 19, 1996."
Id. at 29. The District Court found, however, that even after
his return home, Fr. Jenco never fully recovered from the
grim experience of his imprisonment:
Fr. Jenco continued to suffer the effects of his
captivity. For a long period after his return, Father
Jenco remained underweight and quite weak. Fa-
ther Jenco's nephew, David Mihelich, testified that
his uncle's disposition was noticeably milder, and
indeed never returned to its pre-captivity state. As
well, Christopher Morales, a Special Agent with the
United States Secret Service, became a close friend
of Jenco's after interviewing him about his experi-
ence in Lebanon. Agent Morales testified that he
witnessed Father Jenco have three separate "flash-
backs", that is, moments where Jenco appeared to
be aloof of his surroundings and somewhat pos-
sessed and disturbed by different images or experi-
ences.... In sum, the last 11 years of Fr. Jenco's
life were indelibly marred by his kidnapping and
torture.
Id. at 29-30.
Although the District Court's findings are more precise
with respect to the effects of Fr. Jenco's ordeal on his siblings
than on his nieces and nephews, there is no dispute that the
nieces and nephews suffered emotional distress by virtue of
the harm done to their uncle.
B. The Statutory Framework
Under the Foreign Sovereign Immunities Act ("FSIA"),
foreign states generally enjoy immunity from suit in U.S.
courts. 28 U.S.C. s 1604 ("Subject to existing international
agreements to which the United States is a party at the time
of enactment of this Act a foreign state shall be immune from
the jurisdiction of the courts of the United States and of the
States...."). However, in 1996 Congress enacted the "ter-
rorism exception" to the FSIA under 28 U.S.C. s 1605(a)(7):
In 1996, as part of the comprehensive Antiterrorism
and Effective Death Penalty Act ("AEDPA"), Pub.
L. No. 104-132, s 221(a), 110 Stat. 1214 (Apr. 24,
1996), Congress amended the FSIA to add a new
class of claims for which certain foreign states would
be precluded from asserting sovereign immunity.
Specifically, the amendment vitiates immunity in
cases
in which 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 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. s 1605(a)(7). In enacting this provision,
Congress sought to create a judicial forum for com-
pensating the victims of terrorism, and in so doing to
punish foreign states who have committed or spon-
sored such acts and deter them from doing so in the
future. See Daliberti v. Republic of Iraq, 97
F.Supp.2d 38, 50 (D.D.C.2000); Molora Vadnais, The
Terrorism Exception to the Foreign Sovereign Im-
munities Act, 5 UCLA J. Int'l L. & Foreign Aff.
199, 216 (2000).
....
Section 1605(a)(7) has some notable features which
reveal the delicate legislative compromise out of
which it was born. First, not all foreign states may
be sued. Instead, only a defendant that has been
specifically designated by the State Department as a
"state sponsor of terrorism" is subject to the loss of
its sovereign immunity. s 1605(a)(7)(A). Second,
even a foreign state listed as a sponsor of terrorism
retains its immunity unless (a) it is afforded a rea-
sonable opportunity to arbitrate any claim based on
acts that occurred in that state, and (b) either the
victim or the claimant was a U.S. national at the
time that those acts took place. s 1605(a)(7)(B).
Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d
82, 88-89 (D.C. Cir. 2002).
Less than six months after passage of AEDPA, Congress
passed an amendment designed to enhance the penalties
available in suits implicating 28 U.S.C. s 1605(a)(7). See
Omnibus Consolidated Appropriations Act, 1997, Pub. L. No.
104-208, s 589, 110 Stat. 3009, 3009-172 (1997) (codified at 28
U.S.C. s 1605 note); Flatow v. Islamic Republic of Iran, 999
F. Supp. 1, 12-13 (D.D.C. 1998) (describing amendments to
FSIA); see also Naomi Roht-Arriaza, The Foreign Sovereign
Immunities Act and Human Rights Violations: One Step
Forward, Two Steps Back?, 16 Berkeley J. Int'l L., 71, 82-83
(1998) (discussing the amendment). This provision is known
as the "Flatow Amendment," because its sponsor referred to
the Flatow family - whose daughter, Alisa, was killed by a
Palestinian suicide bomber while studying in Israel - when
speaking in support of the statute. Joseph W. Dellapenna,
Civil Remedies for International Terrorism, 12 DePaul Bus.
L.J. 169, 256 n.439 (1999-2000); see also Flatow, 999 F. Supp.
at 6-9 (describing Alisa Flatow's murder). The Flatow
Amendment allows for non-economic and punitive damages
against an official, employee, or agent of a foreign state
designated as "terrorist." Price, 294 F.3d at 87; Flatow, 999
F. Supp. at 12-13.
In Price, we noted that "[t]he FSIA is undoubtedly a
jurisdictional statute which, in specified cases, eliminates
foreign sovereign immunity and opens the door to subject
matter jurisdiction in the federal courts.... There is a
question, however, whether the FSIA creates a federal cause
of action for torture and hostage taking against foreign
states," or only against their "official[s], employee[s], or
agent[s]" as specified in the Amendment. 294 F.3d at 87.
Two District Court opinions in this circuit have reached
different conclusions on the question of whether the Flatow
Amendment furnishes a basis for a cause of action against a
defendant state. Compare Roeder v. Islamic Republic of
Iran, 195 F. Supp. 2d 140, 171-73 (D.D.C. 2002), with Cronin
v. Islamic Republic of Iran, 2002 U.S. Dist. LEXIS 24115, at
*24-*30 (D.D.C. Dec. 18, 2002). Because this question had
not been briefed or argued by the parties, the court in Price
merely "flag[ged] the issue," leaving it for disposition by the
District Court in the first instance on remand. Id. We need
not reach the issue in this case either, because the District
Court did not address the matter, Iran has not appealed the
judgments in favor of Fr. Jenco's estate and his siblings, and
the instant appeal by the nieces and nephews will be resolved
against appellants on different grounds.
C. The Litigation in District Court
In this case, the parties do not appear to doubt that Iran is
a proper defendant, at least with respect to the claims
brought by Fr. Jenco's estate and his siblings. Iran has been
designated a state sponsor of terrorism by the Secretary of
State. See 22 C.F.R. s 126.1(d). There is also weighty
evidence in the record confirming the involvement of Iran in
connection with Fr. Jenco's kidnapping and brutal imprison-
ment. Jenco, 154 F. Supp. 2d at 31. Because of Iran's
culpability, Fr. Jenco's family brought suit against Iran and
the Iranian Ministry of Information and Security ("MOIS")
on March 15, 2000. The District Court found that, because of
Iran's material support for Hizbollah's hostage taking and
torture, the terrorism exception stripped Iran's immunity
from suit. It also found the defendants liable "on most, but
not all, counts alleged in the plaintiffs' complaint." Jenco, 154
F. Supp. 2d at 33. The court ultimately awarded over $314
million in compensatory and punitive damages to Fr. Jenco's
estate and his siblings. Id. at 40.
The District Court rejected the claims of Fr. Jenco's nieces
and nephews, who were seeking damages for intentional
infliction of emotional distress. The trial court recognized
the "tremendous impact that Fr. Jenco's detention had on his
nieces and nephews." Id. at 36. The court concluded, how-
ever, that these family members could not recover under
common law because they were not among Fr. Jenco's imme-
diate family. In reaching this decision, the District Court
was guided by s 46 of the Restatement (Second) of Torts,
which purports to delineate common law claims for "Outra-
geous Conduct Causing Severe Emotional Distress," as fol-
lows:
(1) One who by extreme and outrageous conduct
intentionally or recklessly causes severe emo-
tional distress to another is subject to liability
for such emotional distress, and if bodily harm to
the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third per-
son, the actor is subject to liability if he inten-
tionally or recklessly causes severe emotional
distress
(a) to a member of such person's immediate
family who is present at the time, whether or
not such distress results in bodily harm, or
(b) to any other person who is present at the
time, if such distress results in bodily harm.
Restatement (Second) of Torts s 46 (1986).
The District Court noted that in Sutherland, another ter-
rorism exception suit, the court allowed the wife of a man
whom Hizbollah held hostage for six and a half years to
recover damages from Iran for intentional infliction of emo-
tional distress even though the wife was not actually "pres-
ent" to witness the outrageous conduct against her husband.
151 F. Supp. 2d at 50. The "presence" requirement of
s 46(2)(a) was construed liberally to include this claim, be-
cause the court found that the defendants' intent to cause
distress to the wife was quite clear from their conduct. Id.
In the instant case, however, the District Court held that,
although the "presence" requirement could be given a gener-
ous reading, the "immediate family" requirement of s 46(2)(a)
could not:
[S]ome lines must be drawn, if, for example, "mil-
lions of people who are not present ... watch the
torture or murder of the President on television."
... In hostage cases, this Court finds that the line
is best drawn according to the plaintiff's relationship
with the victim of the outrageous conduct. That is,
to collect for intentional infliction of emotional dis-
tress in cases such as this one, the plaintiff need not
be present at the place of outrageous conduct, but
must be a member of the victim's immediate family.
The Court draws the line with respect to family
relationship (and not presence) for two reasons.
First, hostage cases are unique in that they implicit-
ly involve a physical separation of the plaintiff from
the victim of the outrageous conduct. As a matter
of fact, a plaintiff's lack of presence is the exact
source of his emotional distress. Thus, if the Court
were to limit recovery in hostage cases using a
"presence" test, plaintiffs would never recover de-
spite there being extremely strong evidence of sig-
nificant emotional suffering.
Second, comparing the presence test to the family
relationship test, courts have been more willing to
stretch the boundaries of presence than family rela-
tionship.
Jenco, 154 F. Supp. 2d at 36 (quoting Dan B. Dobbs, The Law
of Torts s 307, at 834 (2000)). And in applying the "immedi-
ate family" requirement of s 46(2)(a), the District Court
adhered to the traditional definition of that term:
This Court defines one's immediate family as his
spouse, parents, siblings, and children. This defini-
tion is consistent with the traditional understanding
of one's immediate family. See Dan B. Dobbs, The
Law of Torts, s 310 (2000) (addressing the scope of
recovery in consortium claims).
Jenco, 154 F. Supp. 2d at 36 n.8. The court then found that
the nieces and nephews did not satisfy the requirement. Id.
The nieces and nephews now appeal the District Court's
decision to deny them recovery for intentional infliction of
emotional distress. Because Iran did not enter an appear-
ance, the court appointed the Georgetown University Law
Center's Appellate Litigation Program as Amicus Curiae to
present arguments in support of the District Court's judg-
ment.*
II. Analysis
The sole issue on appeal is whether the District Court
erred in denying Fr. Jenco's nieces and nephews recovery
under the Flatow Amendment for intentional infliction of
emotional distress caused by outrageous conduct directed at
Fr. Jenco, where the requirement for recovery at common
law - membership in Fr. Jenco's immediate family - is not
met. This question is a matter of law for this court to
consider de novo. See Princz v. F.R.G., 26 F.3d 1166, 1169
(D.C. Cir. 1994).
The parties agree that the District Court correctly applied
common law (and not local District of Columbia law) to the
nieces' and nephews' claims for intentional infliction of emo-
tional distress. The brief of Amicus Curiae usefully explains
the common law recognized pursuant to the FSIA:
__________
* FSIA s 1608 states that "[n]o judgment by default shall be
entered by a court of the United States ... against a foreign state
... unless the claimant establishes his claim or right to relief by
evidence satisfactory to the court." 28 U.S.C. s 1608. The Law
Center's efforts to assist the court in its statutory responsibility to
evaluate the appellants' claims - both the brief submitted to the
court and the oral argument presented by Ms. Abigail V. Carter -
have been truly outstanding, for which the court is grateful.
While there is an argument that state substantive
tort law may apply to claims brought under the
Flatow Amendment, see, e.g., First Nat'l City Bank
v. Banco Para El Comercio Exterior de Cuba, 462
U.S. 611, 622 n.11 (1983) (finding that under the
commercial exceptions to the FSIA, "where state
law provides a rule of liability governing private
individuals, the FSIA requires the application of that
rule to foreign states in like circumstances"), district
courts performing the traditional choice of law anal-
ysis in Flatow Amendment cases have consistently
applied federal common law. See Wagner v. Islamic
Republic of Iran, 172 F. Supp. 2d 128, 134-35
(D.D.C. 2001) (applying federal common law because
other possible choices "would eventually lead in oth-
er cases to divergent measures of recovery for es-
sentially identical claims against foreign defen-
dants"); Flatow v. Islamic Republic of Iran, 999
F. Supp. 1, 15 (D.D.C. 1998) (applying "interstitial
federal common law" because Congress intended
"that the federal courts create coherent national
standards ... [i]n the interest of promoting unifor-
mity of determinations with respect to the liability of
foreign states for the terrorist acts"). Application of
federal common law is particularly appropriate be-
cause the District of Columbia, which is the dedicat-
ed venue for actions against foreign states, see 28
U.S.C. s 1391(f)(4), does not recognize solatium
damages in wrongful death causes of action while
the Flatow Amendment does. See Runyon v. Dis-
trict of Columbia, 463 F.2d 1319, 1322 (D.C. Cir.
1972) (holding, in a wrongful death case, that "[t]he
parties so recovering may not be compensated for
their grief"); 28 U.S.C. s 1605 note (specifying that
plaintiffs may recover "economic damages, solatium,
pain, and suffering, and punitive damages"); see also
Stethem v. Islamic Republic of Iran, 201 F. Supp. 2d
78, 89 (D.D.C. 2002) ("Because the District of Co-
lumbia does not recognize claims for loss of solatium,
this Court has recognized this cause of action under
the federal common law by relying upon the Second
Restatement of Torts.").9
_______
9 [I]f District of Columbia law were to govern, neither the
nieces nor anyone other than Fr. Jenco himself would
recover for intentional infliction of emotional distress.
Amicus is aware of no case in the District of Columbia
permitting someone other than the direct victim of the
outrageous conduct to recover for intentional infliction of
emotional distress.
_______
Lacking a developed body of federal common law
regarding intentional infliction of emotional distress,
courts evaluating such claims under the Flatow
Amendment have looked to the Restatements, as
well as state decisional law. See, e.g., Sutherland v.
Islamic Republic of Iran, 151 F. Supp. 2d 27, 48-52
(D.C. Cir. 2001) (applying the Second Restatement
of Torts to plaintiff's intentional infliction of emo-
tional distress claim under the federal common law);
Flatow, 999 F. Supp. at 30 n.13 (collecting ALR
references on state law recovery for solatium dam-
ages)[.]
...
In this case, the district court and nieces both rely
on section 46 of the Restatement for the substantive
law of intentional infliction of emotional distress.
Br. of Amicus Curiae at 18-21.
We recognize that some of the cases addressing these
FSIA claims refer to "federal common law." Indeed, Amicus
Curiae does as well. The term "federal common law" seems
to us to be a misnomer. Indeed, it is a mistake, we think, to
label actions under the FSIA and Flatow Amendment for
solatium damages as "federal common law" cases, for these
actions are based on statutory rights. Without the statute,
the claims could not arise. Of course, because these claims
are based on a federal statute, their "extent and nature" are
"federal questions." Burks v. Lasker, 441 U.S. 471, 476
(1979). But that does not, in this case, "authorize the federal
courts to fashion a complete body of federal law." Id. at 477.
Rather, as we note in section II.B., infra, because the FSIA
instructs 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. s 1606, it in effect instructs
federal judges to find the relevant law, not to make it. In
doing this, federal judges have looked to the common law of
the states to determine the meaning of "intentional infliction
of emotional distress." And as we explain more fully below,
federal courts in FSIA and Flatow Amendment cases have
accepted s 46 of the Restatement (Second) of Torts as a
proxy for state common law of intentional infliction of emo-
tional distress - as do both appellants and amicus.
We will assume, arguendo, that the nieces and nephews
may proceed against the State of Iran under the Flatow
Amendment. We will also accept that, in a case of this sort,
"common law," grounded in s 46 of the Restatement (Second)
of Torts, delineates the controlling substantive law. We hold,
however, that Fr. Jenco's nieces and nephews cannot recover
damages for intentional infliction of emotional distress, be-
cause they are not members of Fr. Jenco's immediate family.
In reaching this conclusion, it is unnecessary for us to reach
the question left open in Price, i.e., whether the FSIA creates
a federal cause of action against foreign states. It is also
unnecessary for us to decide whether the nieces and nephews
satisfy the "presence" requirements of s 46(2).
A. The Restatement (Second) of Torts s 46(1) - Actions
for Direct Harm
As noted above, s 46(1) is limited to direct (not "third
party") actions for outrageous conduct causing severe emo-
tional distress:
One who by extreme and outrageous conduct inten-
tionally or recklessly causes severe emotional dis-
tress to another is subject to liability for such emo-
tional distress, and if bodily harm to the other
results from it, for such bodily harm.
Restatement (Second) of Torts s 46(1). Appellants claim
that, although they were not abducted and caused to suffer
the physical punishment that Fr. Jenco faced, they nonethe-
less were direct targets of Hizbollah, Iran, and MOIS during
the 564 days of Fr. Jenco's captivity, and thus may seek relief
for severe emotional distress under s 46(1). In support of
this contention, appellants argue, first, that the kidnapping of
Fr. Jenco was used to manipulate his family to put pressure
on United States Government officials to advance Iran's
political goals, and, second, that disinformation released by
Iran during the kidnapping was calculated to distress family
members.
The District Court focused solely on s 46(2) in rejecting
appellants' claims, implicitly rejecting any suggestion that
appellants could seek relief under s 46(1). The District
Court clearly did not err in declining to apply s 46(1) to
appellants' claims. As Amicus Curiae correctly notes,
If any person that Iran hoped to distress by holding
and torturing Fr. Jenco could recover under section
46(1) as a direct victim of Iran's conduct, virtually
anyone claiming he or she was affected could recov-
er. Assuming the nieces are correct that "[a] ter-
rorist organization does not expose itself to the
wrath of the world community simply to cause emo-
tional distress to only the hostage's 'immediate fami-
ly' " (Appellants' Br. at 40), anyone whom Iran and
MOIS intended to affect - and who was severely
distressed - could recover, including neighbors, pa-
rishioners, and friends, the U.S. government, and
even the world community, in addition to the victim
and his immediate family. Such a result would
contravene the parameters of the FSIA - "the for-
eign state shall be liable in the same manner and to
the same extent as a private individual under like
circumstances," 28 U.S.C. s 1606 - because it would
be contrary to the limits placed on recovery for
intentional infliction of emotional distress by the
Restatement section 46(2) and the states.
Br. of Amicus Curiae at 27-28. We agree.
Moreover, permitting the nieces and nephews to recover
under s 46(1) would undermine the limitations imposed on
recovery under s 46(2) - most significantly, the "immediate
family" requirement. Under appellants' view, anyone who
agitated for the hostages' release out of genuine concern,
sympathy or grief could claim to be an intended "target,"
seek redress under s 46(1), and avoid the strictures of
s 46(2). Appellants argue that this expansive interpretation
of s 46(1) can be avoided by limiting recovery to "family
members." This does not work, however, because it defies
the terms of s 46, and, also, because there is no good reason
to distinguish between aggrieved family members and other
equally aggrieved persons under appellants' expansive inter-
pretation of s 46(1). Cf. Restatement s 46(2), cmt. b ("Be-
cause of the fear of fictitious or trivial claims, distrust of the
proof offered, and the difficulty of setting up any satisfactory
boundaries to liability, the law has been slow to afford
independent protection to the interest in freedom from emo-
tional distress standing alone.").
Finally, the position espoused by appellants is at odds with
the FSIA and the prevailing case law. The statute states
that a "foreign state shall be liable in the same manner and to
the same extent as a private individual under like circum-
stances." 28 U.S.C. s 1606. As Amicus Curiae demon-
strates in its brief, appellants can point to no specific line of
cases in any jurisdiction that supports their right to recovery
under subsection (1). Indeed, the prevailing case law refutes
appellants' claim. See, e.g., Dornfeld v. Oberg, 503 N.W.2d
115, 119 (Minn. 1993) (declining to find reckless driving to be
"directed at" any particular motorist within the meaning of
the Restatement, in part because "[a]llowing recovery under
the present facts would raise the specter that any surviving
family member in a car crash caused by a drunk or reckless
driver could maintain an action against the driver for inten-
tional infliction of emotional distress").
In support of their argument that subsection (1) should
apply in this case, appellants point to Gill v. Brown, 695 P.2d
1276 (Idaho Ct. App. 1985), for the proposition that a defen-
dant can directly target a plaintiff by striking someone or
something, knowing that this conduct will emotionally distress
the plaintiff. In Gill, the court permitted a married couple to
recover for intentional infliction of emotional distress after
the defendant allegedly shot and killed their donkey. Al-
though appellants are correct that the defendant in Gill
targeted the plaintiffs by striking at something dear to them,
the donkey was property and not another person with an
independent legal right to be free from outrageous conduct.
Thus, killing the donkey directly targeted the plaintiffs. Gill
is therefore consistent with the general rule that courts do
not consider a plaintiff to be a direct victim of the defendant's
conduct where that conduct more directly targeted another
victim. While appellants also cite to district court opinions in
cases brought under the Flatow Amendment, none of the
cited opinions purports to hold that family members are
direct victims of terrorist conduct who may escape the re-
quirements of subsection (2) by recovering under subsection
(1).
It is clear that Fr. Jenco's nieces and nephews are not
direct victims under s 46(1). Therefore, the nieces and neph-
ews must satisfy the requirements of s 46(2) in order to gain
recovery for intentional infliction of emotional distress.
B. The Restatement (Second) of Torts s 46(2) - "Third-
Party" Claims
Section 46(2) provides that:
(2) Where [outrageous conduct causing severe emo-
tional distress] is directed at a third person, the
actor is subject to liability if he intentionally or
recklessly causes severe emotional distress
(a) to a member of such person's immediate
family who is present at the time, whether or
not such distress results in bodily harm, or
(b) to any other person who is present at the
time, if such distress results in bodily harm.
Restatement (Second) of Torts s 46(2). Subsection (2)(a)
sets forth the "immediate family" requirement, and subsec-
tions (2)(a) and (b) delineate the "presence" requirements.
Because appellants do not suggest that their emotional dis-
tress resulted in bodily harm, they seek recovery under
s 46(2)(a), not s 46(2)(b). Because we affirm the District
Court's construction of "immediate family" under subsection
(2)(a), we offer no view on the substantive scope of the
"presence" requirements under s 46(2).
Appellants claim that the "immediate family" requirement
of s 46(2)(a) is satisfied in this case, because "[t]he nieces and
nephews were 'near relatives' or 'close associates' of Fr.
Jenco." Appellants' Br. at 47. This, of course, is not the test
enunciated in the Restatement. Rather, s 46(2)(a) is perfect-
ly plain in its reference to "immediate family." It does not
refer to "family members," "near relatives," "close associ-
ates," or persons with whom the victim has "close emotional
ties" - rather, it says, plainly, "immediate family." And there
is no doubt whatsoever that, in this case, nieces and nephews
are not "immediate family" members. Indeed, appellants do
not dispute this point. Rather, they claim that s 46(2)(a)
should be construed liberally to afford "situational justice."
Appellants' Br. at 46. As much as we sympathize with
appellants' claims, we have no authority to stretch the law
beyond its clear bounds to satisfy our sense of justice.
In addressing liability for intentional infliction of emotional
distress, the Restatement took a progressive position, seeking
to advance the common law of 1965. "Academics, rather than
courts, were the prime movers in the development of the
tort...." Daniel Givelber, The Right to Minimum Social
Decency and the Limits of Evenhandedness: Intentional
Infliction of Emotional Distress by Outrageous Conduct, 82
Colum. L. Rev. 42, 42 (1982); see also Annotation, Modern
Status of Intentional Infliction of Mental Distress as Inde-
pendent Tort; "Outrage", 38 A.L.R.4th 998 s 2 (1985) ("Rec-
ognition of the tort by the drafters of the Restatement
stimulated its recognition by the courts, the elements of the
tort as described in the Restatement being widely accepted
and quoted."). The caveat to s 46 says that "[t]he Institute
expresses no opinion as to whether there may not be other
circumstances under which [an] actor may be subject to
liability for the intentional infliction or reckless infliction of
emotional distress." Restatement (Second) of Torts s 46,
caveat. And the Comment to s 46 observes that the law of
intentional infliction of emotional distress is "still in a stage of
development, and the ultimate limits of this tort are not yet
determined." Restatement (Second) of Torts s 46, cmt. c.
However, although the common law today has largely caught
up with the Restatement, Br. of Amicus Curiae at 21, no
cases in any federal or state court go beyond the Restatement
to define "immediate family" as including nieces and nephews.
The brief of Amicus Curiae furnishes an extraordinary
survey of the common law of intentional infliction of emotional
distress, with a chart showing the law in every state in which
the tort has been elucidated. On the basis of this survey,
Amicus Curiae concludes, correctly, that there is no case that
has permitted nieces or nephews to recover for third-party
intentional infliction of emotional distress. Br. of Amicus
Curiae at 47. See also "Amended Survey of State Law
Relating to Recovery for Intentional Infliction of Emotional
Distress (Sometimes Called 'The Tort of Outrage')," Br. of
Amicus Curiae at Addendum. Appellants' counsel conceded
at oral argument that, so far as he knew, no cases include
nieces and nephews in the definition of "immediate family" for
the purpose of intentional infliction of emotional distress.
Indeed, counsel conceded in oral argument that he was
unaware of any cases in any context holding that nieces and
nephews come within the well-understood concept of "imme-
diate family."
We reject appellants' suggestion that the commentary to
s 46 alters the common law definition of "immediate family."
Restatement s 46, cmt. l, in addressing "[c]onduct directed at
a third person," says that "the decided cases in which recov-
ery has been allowed have been those in which the plaintiffs
have been near relatives, or at least close associates, of the
person attacked." Appellants argue that this "makes it clear
that the 'immediate family' requirement was not intended to
bar recovery of those who fall outside the definition of that
term." Appellants' Br. at 47. None of the examples in the
commentary support this claim. Rather, as noted by Amicus
Curiae,
[f]ollowing the reference to "near relatives" or "close
associates," the commentary explains that "there
appears to be no essential reason why a stranger
who is asked for a match on the street should not
recover when the man who asks for it is shot down
before his eyes, at least where his emotional distress
results in bodily harm." ... Although no immedi-
ate family relationship exists in the example, the
stranger is present during the extreme and outra-
geous conduct and suffers bodily injury from his
emotional distress. Because the nieces "do not con-
tend that they suffered bodily harm" (Appellants'
Br. at 27 n.1), the commentary to section 46 does not
assist them. At most, the commentary suggests
that when the plaintiff is present and suffers bodily
injury from the severe emotional distress, individu-
als not within the immediate family may recover
damages. Indeed the commentary merely provides
a gloss on section 46(2)(b), which permits recovery
"to any other person who is present at the time, if
such distress results in bodily harm." Restatement
s 46(2)(b).
Br. of Amicus Curiae at 43-44.
Furthermore, and more importantly, appellants concede
that they cannot find a single case supporting their interpre-
tation of "immediate family." In a few limited circumstances,
some courts have allowed relatives who either resided in the
same household with the victim or were legal guardians to
recover for negligent infliction of emotional distress. See,
e.g., Sullivan v. Ford Motor Co., No.97-CIV-1593, 2000 WL
343777 (S.D.N.Y. Mar. 31, 2000); Garcia v. San Antonio
Housing Auth., 859 S.W.2d 78, 81 (Tex. Ct. App. 1993);
Kriventsov v. San Rafael Taxicabs, Inc., 186 Cal. App. 3d
1445 (1986). And, recently, the District Court allowed recov-
ery for intentional infliction of emotional distress to a woman
who, although not legally married to the victim, had lived with
him for over 20 years in a "bond that was the functional
equivalent of marriage." See Surette v. Islamic Republic of
Iran, 2002 WL 31455114 (D.D.C. Nov. 4, 2002). In these
cases, the parties in issue were members of the victim's
household, and they were viewed as the functional equivalents
of immediate family members. In this case, however, appel-
lants merely claim that the nieces and nephews enjoyed a
close relationship with Fr. Jenco, which is far short of what
s 46(2)(a) requires.
To define "immediate family" to embrace nieces and neph-
ews who do not live in the immediate household or have any
legal obligation to the victim would stretch the term too far.
There is a commonly understood meaning of the term, as
reflected in State and common law. Appellants have not
pointed to any other source of guidance to which a federal
court could properly look in interpreting the FSIA. In
seeking to recover, appellants would transform the apparent-
ly settled meaning of the Restatement in a manner that would
brook few limits, as the nieces and nephews are 22 in number,
live in different States, and while suffering emotionally do not
claim any further relationship to the victim. Indeed, such
expanded recovery in this case might also reduce the fund of
Iranian assets accessible in this country to plaintiffs who are
more closely related to victims of other cases of Iranian
terrorism.
It is not within our authority to extend liability for inten-
tional infliction of emotional distress beyond what has been
allowed by the common law or authorized by the statute. To
choose to include nieces and nephews within the definition of
"immediate family" over, for example, close friends who may
be even more egregiously affected by state-sponsored terror-
ism, seems to us to be well beyond our appropriate role as
judges on the federal bench. First, appellants' claims are, at
bottom, statutory in nature, founded on the FSIA and the
Flatow Amendment. We are obliged, therefore, to apply the
statute as written. As noted above, the FSIA provides that a
"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. s 1606. Therefore, we have no free-wheeling com-
mission to construct common law as we see fit. Rather, we
are bound to look to state law in an effort to fathom the "like
circumstances" to which 28 U.S.C. s 1606 refers. The statute
instructs us to find the law, not to make it. And, as we have
shown, appellants can find no support for their claims in the
established common law. Second, the correct substantive
foundation for appellants' claims is s 46(2)(a), which, as we
have shown, furnishes the basis for much of the state common
law. What is most significant here is that s 46(2)(a) is clear
in its terms, at least insofar as the "immediate family"
requirement is concerned.
We are mindful that state-sponsored terrorist groups such
as Hizbollah transgress all bounds of human decency through
the physical and psychological torture of their hostages.
However, this fact is not a license for judges to legislate from
the bench. Assuming, arguendo, that appropriate parties
may pursue a cause of action against a foreign state like Iran
under the Flatow Amendment, and assuming further that the
prevailing common law continues to mirror the requirements
of s 46(2)(a), relief in cases of this sort will be limited to
"immediate family" members. As the law now stands, the
nieces and nephews of a victim have no viable basis for a
third-party claim of intentional infliction of emotional distress
under the statute.
III. Conclusion
The nieces and nephews are not direct victims under
s 46(1), and they are not "immediate family" members under
s 46(2). Therefore, we affirm the judgment of the District
Court rejecting appellants' claims for recovery based on
intentional infliction of emotional distress.