UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) SHERYL WULTZ, et al., ) ) Plaintiffs, ) ) v. ) 08-cv-1460 (RCL) ) ISLAMIC REPUBLIC OF IRAN, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

I. Introduction.

On April 17, 2006, a Palestinian suicide bomber allegedly attacked a restaurant in Tel

Aviv, State of Israel (“Israel”) (“Tel Aviv bombing”). 1st Am. Compl. ¶ 1, Jan. 13, 2009, ECF

No. 12 [hereinafter FAC]. Daniel Wultz allegedly suffered severe physical injuries, resulting in

his death, further resulting in economic injuries to his estate. Id. ¶¶ 87, 100. Daniel’s father also

allegedly suffered physical injuries in the attack. Id. ¶¶ 88, 101. Finally, several of Daniel’s

family members allegedly also suffered emotional and financial injuries. Id. ¶¶ 101–02.

In the wake of the bombing, Mr. Wultz’s estate and family members (“plaintiffs”) have

brought suit against several defendants, including the Syrian Arab Republic (“Syria”), the Syrian

Ministry of Defense, Syrian Military Intelligence, and the Syrian Air Force Intelligence

Directorate (collectively, “Syrian defendants”). See FAC. Specifically, plaintiffs allege that the

Syrian defendants are liable under the terrorism exception to the Foreign Sovereign Immunities

Act for their provision of material support and resources to the PIJ. FAC ¶ 96 (citing 28 U.S.C.

§ 1605A). The Syrian defendants have moved the Court to dismiss all claims against them. Mot. of

Syria Pursuant to Fed. R. Civ. P. 12(b)(1) and (6) to Dismiss the 1st Am. Comp. for Lack of

Subject Matter Jurisdiction and Legal Insufficiency, Nov. 16, 2009, ECF No. 60.1 The Syrian

defendants make four arguments: (1) that the terrorism exception to the Foreign Sovereign

Immunities Act (FSIA) violates the principle of sovereign equality of nations enumerated in

Article 2.1 of the United Nations Charter, (2) that this case presents nonjusticiable political

questions, (3) that the FSIA terrorism exception unconstitutionally violates separation-of-powers

principles, and (4) that plaintiffs have not adequately pled causation.

The Court will address each of these arguments in turn. The first three arguments are

utterly meritless, as the salient issues have already been dispensed with by the Court of Appeals

for the District of Columbia Circuit. They will be summarily rejected. Concerning the only

remaining argument, the Court concludes that plaintiffs have adequately pled a causal chain.

II. Discussion.

Despite the Syrian defendants’ arguments to the contrary, which have been repeatedly

rejected by the courts of this Circuit, the FSIA terrorism exception does not violate the principle

of sovereign equality, does not raise political questions, and does not violate the separation of

powers. Concerning causation, plaintiffs have adequately alleged that the Syrian defendants’

provision of material support and resources to the PIJ caused plaintiffs’ injuries.

1 Although this motion was originally made only by Syria, all Syrian defendants have stipulated that the motion “is made by and on behalf of defendants the Syrian Ministry of Defense, Syrian Military Intelligence[,] and Syrian Air Force Intelligence Directorate, as well as the Syrian Arab Republic.” Stipulation, Dec. 1, 2009, ECF No. 61. 2 A. The FSIA Terrorism Exception Does Not Violate the United Nations Charter.

The FSIA terrorism exception provides that a foreign state shall not be afforded

immunity from civil suit where, inter alia, the foreign state allegedly provided material support

or resources for the commission of an act of extrajudicial killing that caused personal injury or

death for which money damages are sought. 28 U.S.C. § 1605A(a)(1). Relatedly, the FSIA also

provides that a court “shall hear a claim” under § 1605A if, inter alia, the foreign state in

question was designated as a state sponsor of terrorism when the alleged provision of material

support occurred. § 1605A(a)(2)(A)(i)(I). The United Nations Charter declares that the

“Organization is based on the principle of the sovereign equality of all its Members.” U.N.

Charter art. 2, para. 1.

The Syrian defendants argue that the terrorism exception to the general rule of sovereign

immunity violates the U.N. Charter by denying Syria its sovereign equality, because the United

States only selectively identifies some states as sponsors of terrorism and thus only deprives

some states of immunity under the FSIA. Syria’s Mem. of P. & A. in Support of Syria’s Rule

12(b) Mot. 1–26, Nov. 16, 2009, ECF No. 60-1 [hereinafter Defs.’ Mem.]. The Court of Appeals

has already heard and dispensed with this argument under

(a)(7), the

jurisdictionally similar predecessor to § 1605A: “[E]ven if Article 2.1 does demand strict

equality across states, the provisions are not in conflict because § 1605(a)(7) does not treat Syria

(and the other terrorism states) unequally. Any country can come within § 1605(a)(7)’s

exception so long as the Secretary of State designates it a terrorism sponsor.” Wyatt v. Syrian

Arab Republic,

(D.C. Cir. 2008).

The Syrian defendants argue that the Circuit was wrong: “[U]ntil all are designated, those

designated are denied equal sovereignty.” Defs.’ Mem. 11; see also Defs.’ Reply 4–5. This

3 Court emphatically rejects the Syrian defendants’ invitation to reconsider the clear—and clearly

binding—decision of the court above. Other courts of this District have also dispensed with

identical arguments made by Syrian defendants in two other cases, including one decision issued

three months before the Syrian defendants filed their motion in this case—a decision

conspicuously absent from the Syrian defendants’ briefs. Wyatt v. Syrian Arab Republic, No. 08-

cv-502,

, at *5 n.8 (D.D.C. Sept. 8, 2010); Gates v. Syrian Arab Republic,

, 87–88 (D.D.C. 2009). The Syrian defendants’ argument, utterly without merit

and having been repeatedly ruled against in this Circuit, now flirts with frivolity. See Fed. R.

Civ. P. 11(b)(2). The Court therefore rejects the Syrian defendants’ arguments concerning the

U.N. Charter.

B. This Case Does Not Raise Political Questions.

The Syrian defendants next argue that plaintiffs’ claims raise political questions. Defs.’

Mem. 27–42. The political question doctrine “excludes from judicial review those controversies

which revolve around policy choices and value determinations constitutionally committed for

resolution” by the executive and legislative branches. Japan Whaling Ass’n v. Am. Cetacean

Soc’y,

(1986). Thus, the doctrine makes nonjusticiable those “political

decisions that are by their nature ‘committed to the political branches to the exclusion of the

judiciary.’” Schneider v. Kissinger,

(D.C. Cir. 2005) (quoting Antolok v.

United States,

(D.C. Cir. 1989)). Two considerations guide a court’s testing

for nonjusticiable political questions: “the appropriateness under our system of government of

attributing finality to the action of the political departments” and “the lack of satisfactory criteria

for a judicial determination.” Baker v. Carr,

(1962) (citing Coleman v. Miller,

(1939)).

4 Based on those considerations, the Supreme Court in Baker identified “six independent

tests for the existence of a political question”:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Vieth v. Jubelirer,

(2004) (quoting Baker,

) (internal quotation

marks removed).

The Syrian defendants argue that the deprivation of sovereign immunity under the FSIA

terrorism exception “fails all six Baker tests.” Defs.’ Mem. 35–37. Just as with their argument

concerning the U.N. charter, this argument has been considered and rejected by the Court of

Appeals under § 1605(a)(7); the same logic applies to § 1605A. Gates,

(citing Simon v. Republic of Iraq,

(D.C. Cir. 2008) (“[I]f the political

branches decide tort suits against a foreign sovereign are contrary to the foreign policy of the

Nation, then they may by law remove them from [the court’s] jurisdiction.”), rev’d in part on

other grounds sub nom. Republic of Iraq v. Beaty,

(2009)). And again, the

Syrian defendants lost the same argument only three months before filing this motion, see Gates,

, which they neglect to mention in their briefs. See also Wyatt,

, at *5 n.8. The Court therefore rejects the Syrian defendants’ arguments concerning

political questions.

5 C. The FSIA Terrorism Exception Is Not Unconstitutional.

The Syrian defendants third argue that the FSIA terrorism exception unconstitutionally

violates separation-of-powers principles because final judgments made under § 1605A may be

subject to rescission by Congress or the President. Defs.’ Mem. 42–48. As with the Syrian

defendants’ other arguments, this argument has been previously considered and rejected. Gates,

(citing Owens v. Republic of Sudan,

(D.C. Cir. 2008));

Wyatt,

. Moreover, the previous examples cited by the Syrian

defendants where actions and judgments under the FSIA terrorism exception were extinguished

relate to the Republic of Iraq (“Iraq”) and the Great Socialist People’s Libyan Arab Jamahiriya

(“Libya”). Defs.’ Mem. 43. As plaintiffs correctly point out, “that result was accomplished

through legislation specifically tailored to Iraq and Libya,” not the FSIA more generally. Pls.’

Opp’n. 15; see Libyan Claims Resolution Act,

Stat. 2999 (2008);

National Defense Authorization Act for Fiscal Year 2008,

(d),

, 343 (2008). “[A] constitutional attack based on a violation of separation of powers is

properly launched against the executive or legislative action that effects the reopening of a

judgment, and not against the law pursuant to which the final judgment was made.” Wyatt,

(citing Plaut v. Spendthrift Farm, Inc.,

(1995)). The

Syrian defendants’ separation-of-powers argument is therefore misplaced when directed at the

FSIA. Any such argument must be directed at the executive or legislative acts rescinding a final

judgment—such as the Iraq- or Libya-specific legislation—not the FSIA itself. The Court

therefore rejects the Syrian defendants’ arguments concerning FSIA’s constitutionality.

6 D. Plaintiffs Have Sufficiently Pled Causation.

Plaintiffs must plead a short and plain statement showing they are entitled to relief. The

Syrian defendants argue that plaintiffs have failed to state a claim upon which relief can be

granted because they have failed to adequately allege a causal link between Syria and the Tel

Aviv bombing allegedly giving rise to plaintiffs’ injuries. The Court disagrees; plaintiffs have

alleged the requisite causal chain.

1. Plaintiffs Must Plead a Short and Plain Statement Showing They Are Entitled to Relief.

The Federal Rules of Civil Procedure require that a pleading contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft

v. Iqbal,

(2009) (quoting Bell Atlantic Corp. v. Twombly,

(2007)). The Rule 8 standard is not satisfied where a pleading offers only “labels and

conclusions,” “a formulaic recitation of the element of a cause of action,” or “naked assertion[s]

devoid of further factual enhancement.”

at 1949 (citing Twombly,

).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’”

(quoting Twombly,

) (emphasis added). Twombly’s facial plausibility standard is satisfied when “the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

(quoting Twombly,

).

Therefore, based on the factual allegations within the plaintiff’s complaint, a court must

conclude that it is not merely possible, but also plausible, that the plaintiff is entitled to relief.

(“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”). This

7 determination is a “context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.”

at 1950 (citing Iqbal v. Hasty,

, 157–158 (2d

Cir. 2007)).

When considering whether dismissal of a complaint is appropriate for failure to state a

claim upon which relief can be granted, a court must “assume all the allegations in the complaint

are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable

inferences derived from the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans

Inc.,

(D.C. Cir. 2008) (internal quotations marks omitted). The Court, however,

need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts

alleged in the complaint, nor must the Court accept the plaintiff’s legal conclusions. Browning v.

Clinton,

(D.C. Cir. 2002); Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994).

2. Plaintiffs Have Adequately Alleged That the Syrian Defendants Caused Plaintiffs’ Injury.

“[T]here is no ‘but-for’ causation requirement” for claims made under the FSIA. In re

Islamic Republic of Iran Terrorism Litig.,

(D.D.C. 2009). In Kilburn v.

Socialist People’s Libyan Arab Jamahiriya, a case which interpreted the substantially similar

§ 1605(a)(7) that is now § 1605A, this Circuit noted that in the FSIA, “the words ‘but for’ simply

do not appear; only ‘caused by’ do.”

, 1128 (D.C. Cir. 2004). Adopting the

Supreme Court’s approach to a different but similarly worded jurisdictional statute, the Circuit

interpreted the causation element “to require only a showing of ‘proximate cause.’” Id. (citing

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,

, 536–38, (1995)).

“Proximate cause exists so long as there is ‘some reasonable connection between the act or

omission of the defendant and the damages which the plaintiff has suffered.’” Brewer,

Supp. 2d 43, 54 (D.D.C. 2009) (construing causation element in § 1605A by reference to cases

decided under § 1605(a)(7)) (quoting Kilburn, 376 F.3d at 1128). Significantly, proximate

causation may be shown by general support not tied to a specific terrorist act: “[A] plaintiff need

not establish that the material support or resources provided by a foreign state for a terrorist act

contributed directly to the act from which his claim arises . . . .” In re Islamic Republic of Iran

Terrorism Litig.,

(internal quotation marks omitted).

The Syrian defendants argue that plaintiffs make merely conclusory and implausible

allegations of causation. Defs.’ Mem. 48–54. The Court disagrees; there are several reasonable

alleged connections between the resources provided to the Syrian defendants and plaintiffs’

injuries. Plaintiffs allege that the Syrian defendants provided the PIJ with, inter alia, “financial

support”; “military-grade explosives, military firearms[,] and other weapons and matériel”;

“specialized and professional military training for the planning and execution of terrorist

attacks”; “means of electronic communication and electronic communications equipment”;

“financial services, including banking and wire transfer services”; and “lodging, safe haven[,]

and shelter.” FAC ¶¶ 49–52. The Syrian defendants even allegedly provided the PIJ with a

headquarters in Damascus, including land, buildings, and utilities. Id. ¶ 53.

These allegations are substantially similar to those made against Syria in Wyatt. In that

case, the plaintiffs pled that

Syria provided a variety of forms of material support to the PKK [the Kurdistan Workers’ Party], including: (1) weapons, ammunition, and false passports; (2) the establishment and maintenance of PKK headquarters and offices in Syria; (3) safe haven and shelter in Syria to senior PKK commanders; (4) establishment and maintenance of PKK training and military bases near Damascus, in northern Syria, along Syria’s border with Turkey, and in the Syrian-controlled Beka’a Valley of Lebanon; (5) military and terrorist training . . . by members of the Syrian armed forces and intelligence agencies; and (6) the establishment of the PKK’s logistical infrastructure in Syria.

9 Wyatt,

(internal quotation marks omitted). Because allegations of

“support facilitat[ing a] terrorist group’s development of the expertise, networks, military

training, munitions, and financial resources necessary to plan and carry out [an] attack” suffice to

allege proximate causation, Gates v. Syrian Arab Republic,

, 67

D.D.C. 2008), the court in Wyatt concluded that the plaintiffs had adequately alleged proximate

cause,

.

The Court reaches the same conclusion in this case. The alleged provision of resources

and services no doubt contributed to PIJ operational and tactical ability to carry out terrorist

attacks, including the one alleged here. It is therefore reasonable to conclude that these resources

and services proximately caused plaintiffs’ injuries. The Court therefore rejects the Syrian

defendants’ arguments concerning causation.

III. Conclusion.

For the reasons set forth above, the Syrian defendants’ motion to dismiss is denied. A

separate order consistent with this Memorandum Opinion shall issue this date.

Signed by Royce C. Lamberth, Chief Judge, on October 20, 2010.

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