UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ELISA NILI CIRILO PERES ) BEN-RAFAEL, ET AL., ) ) Plaintiffs, ) ) v. ) Civil Action No. 08-0716 (ESH) ) ISLAMIC REPUBLIC OF IRAN, ET AL., ) ) Defendants. ) __________________________________________)

MEMORANDUM OPINION

This Court previously issued a default judgment in favor of the estate of a victim of

terrorism, David Ben-Rafael, and his immediate family members, in their lawsuit against the

Islamic Republic of Iran (“Iran”) and the Ministry of Information and Security of Iran (“MOIS”).

See Ben-Rafael v. Islamic Republic of Iran,

(D.D.C. 2008) (“Ben-Rafael I”).

Jurisdiction for that case was based on the Foreign Sovereign Immunity Act (“FSIA”),

. FSIA’s immunity exception for state sponsors of terrorism, see

§ 1605(a)(1),

which governed both the Court’s jurisdiction and plaintiffs’ avenues for enforcement of the

judgment, was subsequently replaced by language more favorable to plaintiffs. See

,

, 338-44 (2008). Plaintiffs filed this related action to take advantage

of the new statutory provisions. Plaintiffs seek, inter alia, (1) an order confirming the default

judgment for money damages originally issued in Ben-Rafael I and (2) declaratory relief

classifying the IRGC as an “agency or instrumentality” of Iran so that it will be subject to certain

1 recently-enacted FSIA remedies for execution of judgments under

(g).1

(Compl. at 4.)

After defendants Islamic Revolutionary Guard Corps (“IRGC”) and Iran were served,

neither entered an appearance or filed a response within sixty days. (Pls.’ Aff. of Default ¶¶ 2-

4.) The Clerk of the Court entered default, and plaintiffs now move for default judgment against

these two defendants. (Mot. for J. by Default and Entry of Final J. [“Pls.’ Mot.”] ¶¶ 1, 3.) For

the reasons stated herein, the Court grants in part and denies in part plaintiffs’ motion.

BACKGROUND

This case is based on the same facts set forth in Ben-Rafael I.

.

Because the factual basis for the complaint has not changed since Ben-Rafael I, this Court

incorporates by reference the findings of fact set forth therein and merely provides an

abbreviated summary for the convenience of the reader. David Ben-Rafael died in the 1992

terrorist bombing of the Israeli embassy in Buenos Aires, Argentina, for which Hezbollah

accepted responsibility.

. Iran “played a pre-eminent role in the creation of Hezbollah,”

(internal quotation marks omitted), has funded Hezbollah since the mid-1980s,

and

“provided material support to Hezbollah in its attack,” thereby “allow[ing] Hezbollah to carry

out the embassy bombing.”

.

1 In addition to the claims against Iran and the IRGC addressed herein, plaintiffs list seven other defendants in their complaint. Plaintiffs seek money damages from the Ministry of Information and Security of Iran. (Compl. at 15-17.) They also request declaratory relief against the National Iranian Oil Company, the Alavi Foundation, Bank Saderat, Bank Melli Iran, Bank Sepah Iran, and the Ministry of Defense and Support of the Islamic Republic of Iran, declaring each of those entities to be an “agency or instrumentality” of Iran. (Compl. at 17-19.) Plaintiffs dismissed their claims against the Alavi Foundation. (Pls.’ Praecipe of Dismissal.) However, because plaintiffs have not shown that service has been effectuated on the remaining defendants, this Memorandum Opinion only addresses the claims against Iran and IRGC, both of which have been properly served.

2 In 2006, fourteen years after David Ben-Rafael was killed in the embassy bombing,

several family members and his estate brought suit against Iran and MOIS pursuant to the state-

sponsor-of-terrorism exception to sovereign immunity. See

(a)(7). A default

judgment was entered for plaintiffs on February 25, 2008.

.

Less than one month before this Court entered default judgment in Ben-Rafael I, then-

President Bush signed into law the National Defense Appropriations Act for Fiscal Year 2008

(“2008 NDAA”), of which § 1083 replaces FSIA’s original state-sponsor-of-terrorism

exception.2 See

,

, 338-44 (2008) (repealing

(a)(7) and enacting 28 U.S.C. § 1605A). In addition to preserving the exception to

sovereign immunity, the statute as amended by the 2008 NDAA creates an express private right

of action against state sponsors of terrorism, 28 U.S.C. § 1605A(c); allows for awards of punitive

damages, id.; and, most pertinent to the instant motion, attempts to ease the difficulty of

collecting FSIA judgments by entitling plaintiffs to impose liens on property belonging to state

sponsors of terrorism. Id. § 1605A(g).3 In addition, the 2008 NDAA enacted

(g), which allows for the attachment of property “in aid of execution” of FSIA judgments.

See

,

, 338-44 (2008). In particular, under the 2008

NDAA, property subject to attachment includes that owned by “a foreign state against which a

2 Although by the time this Court issued its default judgment in Ben-Rafael I the jurisdictional grant of

(a)(7) had been replaced, the Court nonetheless “retain[ed] jurisdiction pursuant to § 1605(a)(7) over cases that were pending under that section when Congress enacted the [2008] NDAA.” Simon v. Republic of Iraq,

(D.C. Cir. 2008), rev’ed on other grounds sub nom. Republic of Iraq v. Beaty,

(2009). 3 For a more comprehensive discussion of the genesis and effects of § 1605A, see generally In re Islamic Republic of Iran Terrorism Litig.,

(D.D.C. 2009) (Lamberth, J.).

3 judgment is entered under section 1605A” or “an agency or instrumentality of such a state.”

(g)(1).

Because the now-repealed § 1605(a)(7) set the parameters of the Court’s jurisdiction in

Ben-Rafael I, plaintiffs have been unable to take advantage of new attachment provisions of §§

1605A and 1608(g).4 Hoping to avail themselves of these statutory provisions, plaintiffs now

seek (1) to have default judgment reissued as to defendant Iran5 using the new jurisdictional

grant in § 1605A, and (2) for the Court to declare a new defendant, IRGC, subject to the

attachment provisions of §§ 1605A(g) and 1608(g) as “an agency or instrumentality” of Iran.

ANALYSIS

I. Jurisdiction Under the FSIA

The Foreign Sovereign Immunities Act,

, is the sole basis for

obtaining jurisdiction over a foreign state in United States. Argentine Republic v. Amerada Hess

Shipping Corp.,

(1989). Although it provides that foreign states are generally

immune from jurisdiction in U.S. courts, see

, a federal district court can obtain

personal and subject matter jurisdiction over a foreign entity in certain circumstances. First, a

court can obtain personal jurisdiction over a defendant if the plaintiff properly serves the

defendant in accordance with

. See

(b). Second, subject

4 The 2008 NDAA did not provide for the new sections to apply retroactively in most cases. See

(c)(2),

, 343 (2008). Instead, it allows plaintiffs to file new, related actions to take advantage of the new provisions, see

§ 1083(c)(3), as plaintiffs did here. See also In re Islamic Republic of Iran Terrorism Litig.,

. 5 The Court’s judgment in Ben-Rafael I was against both defendants in that case – Iran and MOIS. See

. In this related action, plaintiffs have not served MOIS (see Pls.’ Aff. of Default ¶ 2), so this Memorandum Opinion does not address MOIS.

4 matter jurisdiction exists if the defendant’s conduct falls within one of the specific statutory

exceptions to immunity. See

(enumerating exceptions), 1330(a). This

Court has jurisdiction because service was proper and defendants’ conduct falls within the “state

sponsor of terrorism” exception set forth in § 1605A.

A. Service

In Ben-Rafael I, the Court explained FSIA’s requirements for service of process upon a

foreign state or a political subdivision of a foreign state under Fed. R. Civ. P. 4(j)(1) and

.

. In this case, on September 8, 2009, plaintiffs effected

service on Iran and IRGC in accordance with

(a)(4). (Pls.’ Aff. of Default ¶¶ 4-

5.)

B. Terrorism Exception to Sovereign Immunity

The “state sponsor of terrorism” exception in the FSIA strips a foreign state of its

sovereign 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). Thus, defendants’ material support for the embassy bombing that

killed Ben-Rafael constituted a waiver of sovereign immunity. See Ben-Rafael I,

.

C. As a Related Action

In the alternative, this Court has jurisdiction to hear the case as a related action to Ben-

Rafael I. As part of the enactment of § 1605A, Congress anticipated that plaintiffs with ongoing

5 FSIA suits would want to benefit from the newly-enacted provisions and that courts hearing

pending suits under § 1605(a)(7) would need jurisdiction to hear related cases after that section’s

rescission. The 2008 NDAA therefore included a section that grandfathers “related action[s] to

timely commenced prior actions under § 1605(a)(7)” into § 1605A’s jurisdictional grant. 2008

NDAA § 1083(c)(3). To qualify, the new action must “aris[e] out of the same act or

incident”and “commence[] not later than the latter of 60 days after– (A) the date of the entry of

judgment in the original action; or (B) the date of the enactment of this Act [Jan. 28, 2008].” Id.

For the present case, the latter of the two relevant dates is February 25, 2008, the entry of

default judgment in Ben-Rafael I. Plaintiffs commenced this related action exactly sixty days

later, on April 25, 2008,6 and because the new complaint arises from the same incident, the Court

has jurisdiction over it.

II. Confirming Default Judgment Against Iran

Plaintiffs now apply to the Court for default judgment against Iran. (Pls.’ Mot. ¶¶ 1, 3.

See Fed. R. Civ. P. 55(b)(2).) Specifically, they seek “to have the Default Judgment entered in

[Ben-Rafael I] confirmed, declared, and entered as a judgment pursuant to the jurisdictional

grant in 28 U.S.C. § 1605A.” (Plaintiffs’ Proposed Findings of Fact and Conclusions of Law at

1-2.) Based on its findings of fact and conclusions of law from Ben-Rafael I, the Court will enter

judgment against the defaulting defendant Iran.

After plaintiffs effected service through diplomatic channels, Iran had sixty days in

6 Plaintiffs assert that they commenced the instant action on the sixteenth day after the Court’s February 25, 2008 entry of judgment on the original action. (Plaintiffs’ Proposed Findings of Fact and Conclusions of Law at 5.) According to both the docket and complaint, plaintiffs filed the complaint on April 25, 2008, the sixtieth day after entry of judgment on the original action. (See Compl. at 19.) At any rate, plaintiffs commenced the case within the sixty- day statutory window for § 1083(c)(3) to apply.

6 which to “serve an answer or other responsive pleading to the complaint.”

(d).

The sixty days passed without defendants entering any appearance in the case. (Pls.’ Aff. of

Default ¶ 5.) Accordingly, and in keeping with Fed. R. Civ. P. 55(a), the Clerk of the Court

entered default against defendants on February 23, 2010.

Before entering default judgment, the Court must inquire further to determine if plaintiffs

have established their claims “by evidence satisfactory to the court.”

(e). In

evaluating plaintiffs’ claims, the Court “may accept [their] uncontroverted evidence as true and

may rely on sworn affidavits.” Oveissi v. Islamic Republic of Iran,

(D.D.C. 2007). The Court is not required to hold an evidentiary hearing. See, e.g., Bodoff v.

Islamic Republic of Iran,

(D.D.C. 2006). As another source of

information, the Court “may take judicial notice of related proceedings and records in cases

before the same court.” Oveissi,

(internal citations omitted). After all,

“courts have an interest [in] promoting uniformity of determinations with respect to the liability

of foreign states for the terrorist acts of its officials, agents, and employees.” Estate of Heiser v.

Islamic Republic of Iran,

(D.D.C. 2009) (internal quotation marks

omitted).

Based on prior rulings in Ben-Rafael I,

, the Court reaffirms its

ruling that plaintiffs here established their claims “by evidence satisfactory to the court” and

reenters default judgment as to defendant Iran.

III. Declaration on the Status of IRGC

Plaintiffs also apply for default judgment against IRGC with regard to their request for

declaratory relief. (Pls.’ Mot. ¶ 3; see Fed. R. Civ. P. 55(b)(2).) Although plaintiffs have

demonstrated IRGC’s default, they have not met their burden of showing that IRGC is “an

7 agency or instrumentality” of Iran within the meaning of

(b).

Plaintiffs’ attempts at service on IRGC were identical to those on Iran (see supra Part

I.A), and, like defendant Iran, the IRGC has not entered any appearance or filed any pleading

since service was effected through diplomatic channels. (Pls.’ Aff. of Default ¶¶ 3-5.) The

Clerk of the Court therefore properly entered default against IRGC on February 23, 2010.

Yet, the Court cannot agree with plaintiffs that IRGC falls squarely within the FSIA’s

understanding of the term “agency or instrumentality of a foreign state.” See

(b). The statute defines the term as:

any entity-- (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title nor created under the laws of any third country.

The D.C. Circuit has adopted a categorical approach to defining such an entity, wherein a

party is either part and parcel of the foreign state itself or is an “agency or instrumentality” of

that state, for purposes of the FSIA. See Roeder v. Islamic Republic of Iran,

(D.C. Cir. 2003). This Court is required to apply this approach.

In terms of the first element, status as a “separate legal person” under the Circuit’s

categorical approach requires the Court to consider only whether the core function of IRGC is

predominantly governmental or predominantly commercial: “[I]f the core functions of the entity

are governmental, it is considered the foreign state itself; if commercial, the entity is an agency

8 or instrumentality of the foreign state.”7

“The plaintiff bears the burden of proving that the

entity is commercial,” Rimkus v. Islamic Republic of Iran,

(D.D.C.

2008), and that burden is further clarified as “by evidence satisfactory to the court.”

(e).

Plaintiffs have not sustained their burden of showing the commercial nature of IRGC.

They rely solely on the award of punitive damages against IRGC in Bayani v. Islamic Republic

of Iran,

(D.D.C. 2007) (Kennedy, J.), where it can be inferred that

7 Since the Court of Appeals last visited its construction of “agency or instrumentality,” the judicial and statutory landscape has changed. Most pertinently, the 2008 NDAA uses “agency or instrumentality” in new contexts that do not seem related to commerce. See 28 U.S.C. § 1605A (enforcement of court judgments); 2008 NDAA § 1083(d)(1) (sovereign immunity of Iraqi institutions). A debate has since emerged as to the breadth of the term. Recently, the broadest construction offered, as “any thing or person through which an action is accomplished,” In re Terrorist Attacks on Sept. 11, 2001,

(2d Cir. 2008), was reigned in by the Supreme Court, which held that the term cannot be defined to include natural persons. Samantar v. Yousuf, No. 08-1555,

, at *7-8 (U.S. June 1, 2010). But the Court only rejected the breadth of “any thing or person” in the Second Circuit’s definition, taking no position on the “through which action is accomplished” component that avoids a core function analysis. See

At the time of its adoption in the D.C. Circuit in Transaero, Inc. v. La Fuerza Aerea Boliviana,

(D.C. Cir. 1994), the commercial function test bore relevance to FSIA litigation. From Transaero until the 2008 NDAA, disputes over whether parties counted as “agenc[ies] or instrumentalit[ies]” tended to involve either aspects of the FSIA that explicitly regard commercial issues, see, e.g., Nemariam v. Fed. Democratic Republic of Ethiopia,

(D.C. Cir. 2007) (“commercial activity” exception in FSIA), or the procedural requirements of the FSIA. See, e.g., Transaero,

(service of process requirements); Roeder,

(determining private right of action). But the 2008 NDAA changed FSIA litigation by expanding both U.S. courts’ jurisdiction and plaintiffs’ remedial toolkits. Continuing to define agencies and instrumentalities with a restrictive core commercial function test is in tension with the goals of the new FSIA. While this Court will apply the core commercial function test out of deference for precedent set by the Circuit Court of Appeals, it notes that the Court of Appeals’ definition fits awkwardly with this application of the term “agency or instrumentality,” because the core function of the entity has little impact on the amenability of its property to attachment in the execution of court judgments.

9 punitive damages could only have been awarded against an agency or instrumentality.8 (See

Pls.’ Prop. FF & CL at 7.) However, all of the cases that have actually discussed the issue have

found the IRGC to be part of the Iranian government, not an agency or instrumentality thereof.

See Rimkus,

; Prevatt v. Islamic Republic of Iran,

(D.D.C. 2006) (Lamberth, J.); Holland v. Islamic Republic of Iran,

(D.D.C. 2005) (Kollar-Kotelly, J.); Salazar v. Islamic Republic of Iran,

(D.D.C. 2005) (Bates, J.). Plaintiffs seek to distinguish these cases by calling them “no longer

good law as they were rendered before the NDAA took effect” (Pls.’ Prop. FF & CL at 7), but in

fact, Bayani meets that description, while the more recent Rimkus was decided eight months after

the enactment of the 2008 NDAA.

Given the persuasive analyses set forth in the above cases, this Court agrees that under

the core commercial function test the IRGC is not a “separate legal person,” but is a

governmental entity, and thus the Court need not reach the second or third elements of the

“agency or instrumentality” analysis.

III. Finality of Judgment

Plaintiff requests that the Court certify its default judgment today as final by using its

power to “direct entry of final judgment as to one or more, but fewer than all, claims or parties . .

. .” Fed. R. Civ. P. 54(b). That power and its constraints aim to “mediate[] between the

8 While Bayani did award punitive damages against the IRGC, where punitive damages were limited by statute to agencies or instrumentalities, the court did not expressly consider the issue of whether the IRGC was an agency or instrumentality. See

. Other cases in this jurisdiction have addressed carefully the relevant facts and have concluded that IRGC is not a commercial entity. See, e.g., Rimkus,

(“[T]he IRGC is governmental rather than a commercial entity” and therefore is not an agency or instrumentality under the FSIA.)

10 sometimes antagonistic goals of avoiding piecemeal appeals and giving parties timely justice.”

Taylor v. Fed. Deposit Ins. Corp.,

(D.C. Cir. 1997). Only “exceptional cases”

merit Rule 54(b)’s direct entry, and the district court has discretion in identifying such cases

because of its “familiar[ity] with the case and with any justifiable reasons for delay.” Bldg.

Indus. Ass’n of Superior Calif. v. Babbitt,

(D.C. Cir. 1998) (quoting Sears,

Roebuck & Co. v. Mackey,

(1956)).

Before certifying a judgment as final pursuant to Rule 54(b), the district court must make

certain express determinations on the record, without which a federal court of appeals does not

acquire jurisdiction. Johnson v. Mukasey,

(D.D.C. 2008) (citing Bldg.

Indus. Ass’n,

). First, the order in question must be a final judgment, as in “an

ultimate disposition of an individual claim entered in the course of a multiple claims action” and

“a ‘judgment’ in the sense that it determines a claim for relief.” Bldg. Indus. Ass’n,

(quoting Curtiss-Wright Corp. v. Gen. Elec. Co.,

(1980)). Second, the court

must determine that there is no just reason for delay, “tak[ing] into account judicial

administrative interests” including “whether the claims under review [are] separable from the

others remaining to be adjudicated and whether the nature of the claims already determined [is]

such that no appellate court would have to decide the same issues more than once even if there

were subsequent appeals.”

(quoting Curtiss-Wright Corp.,

).

The only judgment at issue is the reassertion of default judgment as against Iran, since

that is the only judgment entered by the Court today. There is plainly no reason for delay in

directing the entry of final judgment. This conclusion, made at the Court’s discretion, is

supported by the fact that the identical judgment was issued in the past and was itself a final

judgment. Completely distinct from the default judgment against Iran for money damages, the

11 other claims in this action are against different defendants, request different forms of relief, and

draw from different legal and factual issues. Namely, the other claims all focus on the nature of

the other defendants and their classification as agencies or instrumentalities, rather on the

embassy bombing itself, because the other claims only seek declaratory relief as to each

defendant’s status.

The Court has also weighed the effects on judicial administration and is confident that

this entry of final judgment will not frustrate appellate efficiency or jurisdiction. The factual and

legal bases for the underlying judgment for money damages are unrelated to the above status

questions that must be decided for the claims that will remain outstanding after this judgment, so

the same issues will not be duplicated on appeal even if there are subsequent appeals.

CONCLUSION

For the foregoing reasons, the Court enters judgment for plaintiffs in the amounts

specified in Ben-Rafael I,

, and directs entry of that judgment as final

pursuant to Fed. R. Civ. P. 54(b). A separate Order accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge

Dated: June 18, 2010

12