Oveissi v. Islamic Republic of Iran

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 12, 2009 Decided July 28, 2009

No. 07-7132

AMIR REZA OVEISSI,
APPELLANT

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. 03cv01197)

James W. Spertus argued the cause for appellant. With him
on the brief was Ezra D. Landes

Before: ROGERS, GARLAND, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: The plaintiff in this case is the
grandson of Gholam Oveissi, who was chief of the Iranian
armed forces under the Shah’s regime. Members of the terrorist
organization Hezbollah, operating under the name Islamic Jihad,
assassinated Oveissi in Paris in 1984. In 2003, the plaintiff sued
 2

the Islamic Republic of Iran and the Iranian Ministry of
Information and Security (MOIS) in the United States District
Court for the District of Columbia, alleging that the defendants
had funded and directed Islamic Jihad. The district court found
that Iran and MOIS were not entitled to sovereign immunity and
that they were culpable in Oveissi’s murder, but the court
rejected the plaintiff’s claims for intentional infliction of
emotional distress and wrongful death. We conclude that the
court applied the wrong law to the plaintiff’s claims because it
conducted an erroneous choice-of-law analysis. Accordingly,
we reverse the judgment and remand the case for further
proceedings.

I

Gholam Oveissi, an Iranian citizen, served as a four-star
general and chief of Iran’s armed forces until early 1979. In that
year, revolutionaries deposed the Shah and established an
Islamic Republic. Oveissi, a supporter of the Shah’s
government, fled the country, traveling first to the United States
and then to France, where he took up residence in Paris.
Oveissi’s son and daughter-in-law also fled from Iran to the
United States. Their son, plaintiff Amir Oveissi, was born
during their stay in California. Several months after the
plaintiff’s birth, his family moved to Paris, where they shared an
apartment with Gholam Oveissi.

“While the family lived together in Paris, Gholam was
outspoken in his opposition to Iran’s revolutionary government
and met with other expatriates in the family’s apartment.”
Oveissi v. Islamic Republic of Iran, 498 F. Supp. 2d 268, 274
(D.D.C. 2007). Fearing reprisal for his political views, Oveissi
hired a bodyguard. Despite this precaution, on February 17,
1984, Oveissi was shot and killed while he walked on a crowded
Paris street. Members of the terrorist group Hezbollah,
 3

operating under the name Islamic Jihad, “immediately claimed
responsibility,” and the district court found “[n]o reason . . . to
dispute this claim.” Id. Oveissi’s family left Paris as soon as
they learned of the assassination, traveling first to Morocco for
eighteen months and then to the United States, where they
eventually settled in Virginia.

On June 2, 2003, the plaintiff filed a complaint against Iran
and MOIS in the United States District Court for the District of
Columbia, invoking the court’s jurisdiction under the Foreign
Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602 et seq.
The complaint alleged causes of action for, inter alia, intentional
infliction of emotional distress (IIED) and wrongful death. The
plaintiff filed an amended complaint on December 31, 2005, and
effected service of process through diplomatic channels on May
30, 2006, pursuant to 28 U.S.C. § 1608(a)(4).

Iran failed to enter an appearance or respond to the
complaint. The FSIA, however, “does not automatically entitle
a plaintiff to judgment when a foreign state defaults,” and
instead requires a court “to satisfy itself that [the plaintiff has]
established a right to relief.” Roeder v. Islamic Republic of Iran,
333 F.3d 228, 232 (D.C. Cir. 2003) (citing 28 U.S.C. § 1608(e)).
The district court therefore conducted a bench trial, receiving
evidence from the plaintiff, Gholam Oveissi’s bodyguard, and
an international terrorism expert. The court summarized the
expert’s testimony as follows:

[I]n the early 1980s, members of Hezbollah, under the
direction of MOIS, engaged in terrorist activities
outside the Middle East using the nom-de-guerre
“Islamic Jihad.” These activities included
assassinations of expatriate Iranian dissidents, mainly
in France. In [the expert’s] opinion, the killings were
intended to silence the Iranian regime’s critics and to
 4

deter French intervention in Lebanon. . . . As well as
guiding Hezbollah’s terrorist activities, Iran, through
MOIS and other entities, provided logistical support
and training that, according to [the expert], were
crucial to Hezbollah’s ability to carry out the
assassinations.

Oveissi, 498 F. Supp. 2d at 273-74 (footnote omitted). Based on
this evidence, the court concluded that the then-applicable
terrorism exception to the FSIA, 28 U.S.C. § 1605(a)(7),
stripped Iran of its immunity from suit, and that Iran and MOIS
were culpable in Oveissi’s assassination.

The court nonetheless dismissed all of the plaintiff’s claims.
With respect to the IIED claim, the court began by conducting
a choice-of-law analysis. Applying District of Columbia choice-
of-law rules, it determined that ordinarily the “the law of the
plaintiff’s domicile at the time of the acts at issue” would govern
the claim. Oveissi, 498 F. Supp. 2d at 280. Although the court
found that the plaintiff was a domiciliary of France at the time
of the 1984 assassination, it concluded that domiciliary status
was not determinative in the instant case. “[T]he United States,”
the court said, “has a unique interest in having its domestic law
apply when its citizens are injured by state-sponsored terrorist
acts.” Id. at 281 (internal quotation marks omitted). Because
the plaintiff was born in California and had briefly resided there,
the court determined that it should apply California law to the
IIED claim. In light of its reading of California law, however,
the court concluded that the plaintiff “lack[ed] standing to bring
an IIED claim based on [Gholam Oveissi’s] death.” Id. at 283.

Without applying a choice-of-law analysis, the court found
the plaintiff’s wrongful-death claim barred by Lord Campbell’s
Act, a law enacted by the British Parliament in 1846 that became
the prototype for wrongful-death statutes in many American
 5

states. Id. at 277-79; see Sea-Land Servs., Inc. v. Gaudet, 414
U.S. 573, 579-80 (1974). Lord Campbell’s Act permits certain
near relatives to bring a wrongful-death action against a
tortfeasor if the deceased would have been “entitled . . . to
maintain an Action . . . if Death had not ensued” and the
deceased had merely been injured. Lord Campbell’s Act, 9 &
10 Vict., ch. 93, An Act for compensating the Families of
Persons killed by Accidents (Aug. 26, 1846); see RESTATEMENT
(SECOND) OF TORTS § 925 cmt. a (1979). Although the plaintiff
is a U.S. citizen and is thereby entitled to bring an action under
the terrorism exception of the FSIA if the other statutory
conditions are met, see 28 U.S.C. § 1605(a)(7)(A), (B), Gholam
Oveissi was an Iranian citizen and could not himself have sued
under the terrorism exception had he survived the attack.
“Because no action could have been brought by the deceased if
still alive,” the court thought it had to dismiss the plaintiff’s
wrongful-death claim. Oveissi, 498 F. Supp. 2d at 279 (internal
quotation mark omitted).

The plaintiff now appeals from the district court’s dismissal
of his amended complaint.

II

We begin with some necessary background regarding the
FSIA. The Act “grants United States courts both subject matter
and personal jurisdiction (where service of process has been
made) over any claim against a foreign state as to which the
state is not entitled to immunity.” World Wide Minerals, Ltd. v.
Republic of Kazakhstan, 296 F.3d 1154, 1159 n.5 (D.C. Cir.
2002) (citing 28 U.S.C. § 1330(a), (b)). Under the FSIA, foreign
states generally are entitled to immunity unless the case falls
within one of a list of statutory exceptions. 28 U.S.C. § 1604;
see Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376
F.3d 1123, 1126 (D.C. Cir. 2004). In 1996, Congress amended
 6

the FSIA, adding an exception -- § 1605(a)(7) -- “colloquially
known as the ‘terrorism exception.’” Kilburn, 376 F.3d at 1126.
In pertinent part, that exception abrogates the sovereign
immunity of foreign states in civil cases “in which money
damages are sought against a foreign state for personal injury or
death that was caused by . . . extrajudicial killing.” 28 U.S.C.
§ 1605(a)(7). “This exception applies only if three additional
criteria are also satisfied: the foreign state was designated a
‘state sponsor of terrorism’ at the time the act occurred; the
foreign state was given a reasonable opportunity to arbitrate a
claim regarding an act that occurred within the state’s borders;
and the claimant or victim was a national of the United States.”
Kilburn, 376 F.3d at 1126-27 (citing 28 U.S.C. § 1605(a)(7)(A),
(B)).

In this case, the district court correctly determined that it
had jurisdiction over the plaintiff’s suit under the terrorism
exception of the FSIA. The assassination of Gholam Oveissi
clearly qualifies as an extrajudicial killing attributable to the
Iranian government; “Iran has been designated a state sponsor
of terrorism continuously since January 19, 1984, one month
prior to Gholam Ali Oveissi’s death,” Oveissi, 498 F. Supp. 2d
at 275; there was no need to give Iran an opportunity to arbitrate
the claim because the murder occurred outside Iran’s borders;
and the claimant, Amir Oveissi, is a U.S. citizen.

Although the FSIA grants jurisdiction over certain claims
against foreign countries, at the time the plaintiff filed his suit
the terrorism exception did not provide a federal cause of action
against a foreign state. See Cicippio-Puleo v. Islamic Republic
of Iran, 353 F.3d 1024, 1027 (D.C. Cir. 2004). The plaintiff was
therefore required to identify, and to bring his claims pursuant
to, some other “cause of action arising out of a specific source
of law” -- for example, state law. Acree v. Republic of Iraq, 370
F.3d 41, 59 (D.C. Cir. 2004), abrogated on other grounds by
 7

Republic of Iraq v. Beaty, 129 S. Ct. 2183 (2009). While he did
not have to identify the specific source of law in his complaint,
the plaintiff did have to do so at an appropriate time in the
litigation.1 The plaintiff satisfied this obligation by identifying
his causes of action as arising under state statutory and common
law in his submissions to the district court.

One additional development in the statutory scheme merits
notice. After the district court issued its opinion in this case,
Congress enacted the National Defense Authorization Act for
Fiscal Year 2008 (NDAA), which, among other things, amended
the terrorism exception by repealing 28 U.S.C. § 1605(a)(7) and
adding a new exception codified at § 1605A. Pub. L. No. 110-
181, § 1083, 122 Stat. 3, 338-44 (2008). This new exception,
which became effective on January 28, 2008, is “more
advantageous to plaintiffs in several respects”; for example, it
“creat[es] a federal right of action against foreign states, for
which punitive damages may be awarded.” Simon v. Republic
of Iraq, 529 F.3d 1187, 1190 (D.C. Cir. 2008), rev’d on other
grounds sub nom. Republic of Iraq v. Beaty, 129 S. Ct. 2183
(2009); see 28 U.S.C. § 1605A.

1
See Acree, 370 F.3d at 43 (dismissing a suit because “[n]either
appellees’ complaint, nor their submissions to this court, nor the
District Court’s decision in their favor offers any . . . coherent
alternative causes of action” besides the FSIA itself); see also Kilburn,
376 F.3d at 1125 (allowing a suit to proceed, “[a]lthough the
complaint did not specify the legal sources of the . . . causes of
action,” when later pleadings clarified the sources of law underlying
the claims); cf. Owens v. Republic of Sudan, 531 F.3d 884, 894 (D.C.
Cir. 2008) (rejecting Sudan’s argument that “heightened specificity is
required of . . . pleading” regarding causation in an FSIA case, and
noting that “Sudan points to no Rule or statute that imposes a
heightened pleading requirement in the context of the terrorism
exception”).
 8

In Simon, the circuit held that a “plaintiff in a case pending
under § 1605(a)(7) may not maintain that action based upon the
jurisdiction conferred by [the new] § 1605A; in order to claim
the benefits of § 1605A, the plaintiff must file a new action
under that new provision.” 529 F.3d at 1192. We also
determined, however, that “courts retain jurisdiction pursuant to
[former] §1605(a)(7) over cases that were pending under that
section when the Congress enacted the NDAA.” Id. Because
the plaintiff has not attempted to refile his case under § 1605A,
we have no occasion to consider whether he can allege claims
under that section. Instead, doing as Simon says, we retain
jurisdiction and consider this suit pursuant to § 1605(a)(7), the
section under which it was filed. See La Reunion Aerienne v.
Socialist People’s Libyan Arab Jamahiriya, 533 F.3d 837, 845
(D.C. Cir. 2008); Owens v. Republic of Sudan, 531 F.3d 884,
887 (D.C. Cir. 2008).

III

As noted in Part I, the district court dismissed the plaintiff’s
IIED claim on the ground that he lacked standing to assert such
a claim under California law, and it dismissed his wrongful-
death claim on the ground that it was barred by Lord Campbell’s
Act. Before we can consider whether the court accurately
construed California law or Lord Campbell’s Act, we must ask
whether the district court was right to apply them. And before
we can answer that question, we must first determine which
jurisdiction’s choice-of-law rules tell us which jurisdiction’s
substantive law to apply.

1. The FSIA does not contain an express choice-of-law
provision. FSIA § 1606 does, however, provide that a foreign
state stripped of its immunity “shall be liable in the same
manner and to the same extent as a private individual under like
circumstances.” 28 U.S.C. § 1606. This section ensures that, if
 9

an FSIA exception abrogates immunity, plaintiffs may bring
state law claims that they could have brought if the defendant
were a private individual. See First Nat’l City Bank v. Banco
Para El Comercio Exterior de Cuba, 462 U.S. 611, 622 n.11
(1983) (“[W]here state law provides a rule of liability governing
private individuals, the FSIA requires the application of that rule
to foreign states in like circumstances.”). In this way, “the FSIA
. . . operates as a ‘pass-through’ to state law principles.”
Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 12 (2d
Cir. 1996).

Relying on the language of § 1606, the Second Circuit has
held that courts considering issues governed by state substantive
law in FSIA cases should apply the choice-of-law rules of the
forum state. Barkanic v. Gen. Admin. of Civil Aviation of the
People’s Republic of China, 923 F.2d 957, 959-60 (2d Cir.
1991); see also O’Bryan v. Holy See, 556 F.3d 361, 381 n.8 (6th
Cir. 2009) (using the forum state’s choice-of-law rules in an
FSIA case). As the Second Circuit persuasively reasoned, “[t]he
goal of applying identical substantive laws to foreign states and
private individuals . . . cannot be achieved unless a federal court
utilizes the same choice of law analysis in FSIA cases as it
would apply if all the parties to the action were private.”
Barkanic, 923 F.2d at 959-60. The paradigm case involving
choice-of-law issues and solely private parties is one brought
under the federal courts’ diversity jurisdiction. See 28 U.S.C.
§ 1332. In such a case, the court would apply the forum state’s
choice-of-law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S. 487, 496 (1941). We thus agree with the Second
Circuit that applying the forum state’s choice-of-law principles,
rather than constructing a set of federal common law principles,
better effectuates Congress’ intent that foreign states be “liable
 10

in the same manner and to the same extent as a private
individual” in FSIA actions. 28 U.S.C. § 1606.2

In this case, the plaintiff’s causes of action for IIED and
wrongful death are based solely on state substantive law, and the
choice-of-law rules of the forum -- the District of Columbia --
therefore apply to those claims. The district court did rely on
D.C. law when conducting its choice-of-law analysis for the
plaintiff’s IIED claim, and it concluded that California law
should supply the rule of decision. See Oveissi, 498 F. Supp. 2d
at 280-81. We review this determination de novo. Williams v.
First Gov’t Mortgage & Investors Corp., 176 F.3d 497, 499
(D.C. Cir. 1999); see also Felch v. Air Florida, Inc., 866 F.2d
1521, 1523 (D.C. Cir. 1989) (“This court treats choice of law
issues as matters of law over which it exercises de novo
review.”).

2. To determine which jurisdiction’s substantive law
governs a dispute, District of Columbia courts blend a
“governmental interests analysis” with a “most significant
relationship” test. Hercules & Co., Ltd. v. Shama Rest. Corp.,
566 A.2d 31, 40-41 & n.18 (D.C. 1989); see also Jaffe v.
Pallotta TeamWorks, 374 F.3d 1223, 1227 (D.C. Cir. 2004);
Stephen A. Goldberg Co. v. Remsen Partners, Ltd., 170 F.3d

2
By contrast, the Ninth Circuit has stated that, “[i]n the absence
of specific statutory guidance [in the FSIA], [it] prefer[s] to resort to
the federal common law for a choice-of-law rule.” Harris v. Polskie
Linie Lotnicze, 820 F.2d 1000, 1003 (9th Cir. 1987). In our view,
§ 1606 provides sufficient statutory guidance to resolve the issue. In
any event, as we discuss in Part III.2, all of the usual choice-of-law
factors -- including those identified as important by the Restatement
(Second) of Conflict of Laws -- point in the same direction, so there
is no reason to believe that applying a federal common law choice-of-
law rule would yield a different result in this case.
 11

191, 193-94 (D.C. Cir. 1999). “Under the governmental
interests analysis[,] . . . [a court] must evaluate the governmental
policies underlying the applicable laws and determine which
jurisdiction’s policy would be most advanced by having its law
applied to the facts of the case under review.” Hercules, 566
A.2d at 41 (internal quotation marks omitted). To determine
which jurisdiction has the most significant relationship to a case,
a court must “consider the factors enumerated in the
Restatement [(Second) of Conflict of Laws] § 145.” Id. at 40.
The four Restatement factors are: (1) “the place where the
injury occurred”; (2) “the place where the conduct causing the
injury occurred”; (3) “the domicil[e], residence, nationality,
place of incorporation and place of business of the parties”; and
(4) “the place where the relationship, if any, between the parties
is centered.” RESTATEMENT (SECOND) OF CONFLICT OF LAWS
§ 145(2) (1971).

In any given case, these considerations may point in
opposite directions and raise difficult questions concerning how
each should be weighted. In this case, however, we face no such
difficulty because the factors overwhelmingly point in the
direction of France. The assassination occurred in France. The
victim, Gholam Oveissi, was an Iranian who was domiciled
there. Although the plaintiff is a U.S. citizen, he, too, was
domiciled in France at the time his grandfather was murdered.
Hence, this is not a case in which we must choose between
applying the law of the jurisdiction where the tort occurred
versus that where the plaintiff was domiciled, as both are the
same. Moreover, in addition to having the most significant
relationship to the assassination, France has a strong
governmental interest in both deterring attacks within its
sovereign borders and ensuring compensation for injuries to its
 12

domiciliaries.3 The interest of California, which arises solely
out of the fact that the plaintiff was born and briefly resided
there -- for less than a year and not at the time of the attack -- is
slight by comparison. Cf. Jaffee, 374 F.3d at 1229 (concluding
that District of Columbia choice-of-law rules counsel applying
Virginia, rather than D.C., law to a suit brought on behalf of a
D.C. resident when “Virginia has a public policy which is
directly implicated” and “the interests of the District of
Columbia are at best attenuated”).

The district court recognized that, under ordinary D.C.
choice-of-law analysis, French law would apply to the plaintiff’s
claims. Oveissi, 498 F. Supp. 2d at 280. The court noted,
however, that “the United States has a unique interest in having
its domestic law apply when its citizens are injured by state-
sponsored terrorist acts.” Id. at 281 (internal quotation marks
omitted). This consideration, the court said, “elevates the
interests of the United States to nearly [their] highest point” and
requires resort to California law. Id. (internal quotation marks
omitted).

To support this proposition, the district court cited another
district court opinion, Dammarell v. Islamic Republic of Iran,
which applied the law of the American plaintiffs’ state of
domicile -- rather than that of Lebanon -- to a suit brought by
American victims of the 1983 bombing of the United States
Embassy in Beirut. 2005 WL 756090 (D.D.C. Mar. 29, 2005).

3
There is no contention here that application of French law
would “conflict[] with a strong public policy” of the District of
Columbia. Cf. Sami v. United States, 617 F.2d 755, 763 (D.C. Cir.
1979) (noting that “prevailing conflicts principles in the District of
Columbia and elsewhere . . . permit application of an alternate
substantive law when foreign law conflicts with a strong public policy
of the forum” (footnote omitted)).
 13

As the Dammarell court explained, the injuries in that case were
“the result of a state-sponsored terrorist attack on a United States
embassy and diplomatic personnel[, and the] United States has
a unique interest in its domestic law . . . determining damages in
a suit involving such an attack.” Id. at *20. The court cited the
Restatement (Third) of Foreign Relations Law § 402(3), which
provides that a country has jurisdiction to prescribe law with
respect to “‘certain conduct outside its territory by persons not
its nationals that is directed against the security of the state or
against a limited class of other state interests.’” Id. (quoting
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 402(3)
(1987)) (emphasis added). The court also cited a comment to
the Restatement for the proposition that this principle is
“‘increasingly accepted as applied to terrorist and other
organized attacks on a state’s nationals by reason of their
nationality, or to assassination of a state’s diplomatic
representatives or other officials.’” Id. at *20 n.16 (quoting
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 402 cmt.
g) (emphasis added).

We have no doubt that the United States has a strong
interest in applying its domestic law to terrorist attacks on its
nationals, especially when, as was the case in Dammarell, the
attacks are “by reason of their nationality.” But Gholam Oveissi
was not an American national; nor has the plaintiff suggested
that the defendants knew Oveissi had an American grandchild
or that the United States or its nationals were in any other way
the object of the attack. To the contrary, plaintiff’s counsel
conceded at oral argument that there is no evidence that
Oveissi’s assassination was intended to affect the United States.
See Oral Arg. Recording at 4:52-5:03. Moreover, the plaintiff’s
international terrorism expert testified that assassinations like
this one “were intended to silence the Iranian regime’s critics
and to deter French intervention in Lebanon.” Oveissi, 498 F.
Supp. 2d at 273 (emphasis added). Hence, if any country was
 14

the object of the attack, it was France. Accordingly, all of the
relevant choice-of-law factors point to the application of French
law to the plaintiff’s claims.4

We close this discussion by emphasizing that we are not
setting forth a general choice-of-law rule for terrorism cases, but
merely applying the District of Columbia’s rules to the facts of
a case filed under former § 1605(a)(7). And we note that, for
terrorism cases filed under the new § 1605A, plaintiffs whose
cases meet the statutory requirements now have a federal cause
of action. See 28 U.S.C. § 1605A(c); Simon, 529 F.3d at 1190.

3. Having concluded that French law governs the
assassination of French-domiciliary Gholam Oveissi in France,
we do not address the plaintiff’s arguments that the district court
misconstrued California law and Lord Campbell’s Act in
dismissing his claims. We have no reason to suspect that French
and California law are the same with respect to IIED claims.
And we have every reason to doubt that France has adopted the
equivalent of an 1846 British statute to govern wrongful-death
claims in its courts. Accordingly, our opining on California law
or Lord Campbell’s Act would be beside the point. We leave it
to the district court on remand to evaluate the plaintiff’s claims
under French law.

4
We also note that, although choice-of-law rules can point to
different sources of substantive law for different claims, e.g., Logan
v. Providence Hosp., Inc., 778 A.2d 275, 280 (D.C. 2001), that is not
the case for the closely related IIED and wrongful-death claims at
issue here.
 15

IV

For the foregoing reasons, we reverse the judgment
dismissing the plaintiff’s amended complaint, and we remand
the case for further proceedings consistent with this opinion.

Reversed and remanded.