D.C. Circuit
dismisses complaint against Iran for lack of subject-matter jurisdiction;
Foreign Sovereign Immunity Act’s terrorism exception, 28 U.S.C. § 1605A, does
not apply to acts by a foreign country against its own citizens; plaintiffs
obtained U.S. permanent residency and U.S. citizenship after the alleged acts
In
2009, plaintiffs, three Iranian émigré siblings and the estate of their
deceased brother, brought an action to recover for their injuries sustained
from imprisonment, torture, and extrajudicial killing they allegedly suffered
at the hands of the Islamic Republic of Iran. As defendants, they named the
Islamic Republic of Iran, the Army of the Guardians of the Islamic Revolution
(the Revolutionary Guard), and two Iranian leaders, Ayatollah Sayid Ali Hoseyni
Khamenei and Mahmoud Ahmadinejad.
During
the 1990s, plaintiff Manouchehr Mohammadi and his late brother, Akbar Mohammadi,
became leaders in the Iranian pro-democracy movement. The brothers also
participated in the 1999 student protest. This resulted in their arrest by the
Iranian officials and confinement in Evin prison in Tehran. In the prison, the
brothers allegedly suffered brutal physical and psychological abuse and
torture. Allegedly, their sisters, Nasrin Mohammadi and Simin Taylor, also
suffered severe mistreatment at the hands of the Iranian regime. Akbar died in
prison in 2006, while the three surviving siblings had settled in the United
States. Furthermore, the plaintiffs alleged that Iranian agents continued to
harass them in the United States, threatening them over the phone with murder,
refusing to let their parents leave Iran, hacking their computers, and circulating
doctored photographs of Nasrin depicted in an immodest light.
The
defendants never appeared in court to contest the allegations against them.
Plaintiffs filed a motion for entry of default and a default judgment. The
district court granted the motion for entry of default; scheduled an
evidentiary hearing to establish damages; and directed plaintiffs to submit
briefing addressing the basis for the court’s subject-matter jurisdiction.
The
district court dismissed plaintiffs’ complaint for lack of subject-matter
jurisdiction, and held that the Foreign Sovereign Immunities Act (FSIA), 28
U.S.C. §§ 1602 et seq., afforded Iran and the Revolutionary Guard immunity from
the court’s jurisdiction. Plaintiffs relied on the FSIA’s terrorism exception,
28 U.S.C. § 1605A, but the court rejected their claim because “[t]hat exception
abrogates immunity if, among other things, the complaint seeks damages for
‘torture’ or ‘extrajudicial killing’ and the victim was a ‘national of the
United States’ at the time of those acts. 28 U.S.C. § 1605A(a).” [Slip op. 2]
The district court also held that “plaintiffs failed to qualify as United
States ‘nationals’ at the time of the relevant acts in Iran, and that any acts
postdating plaintiffs’ relocation to the United States failed to constitute
‘torture’ within the meaning of the statute”. Mohammadi v. Islamic Republic of
Iran, 947 F. Supp. 2d at 68 (D.D.C. 2013). Furthermore, the court held that the
claims against Kahmenei and Ahmadinejad would be treated as claims against Iran
itself and thus would likewise be dismissed based on foreign sovereign
immunity. The district court denied plaintiffs’ motion for default judgment.
In
response to district court’s denial, plaintiffs filed a motion for
reconsideration and an accompanying motion for leave to file a fourth amended
complaint, which the district court denied. The plaintiffs appealed.
The
United States Court of Appeals for the District of Columbia Circuit affirms the
district court’s decision.
The
key issue here is whether the Foreign Sovereign Immunity Act’s terrorism
exception, 28 U.S.C. § 1605A, applies to acts by a foreign country taken
against its own citizens.
Reviewing
the matter de novo, the Court agrees with the district court’s conclusion that
the terrorism exception to FSIA, 28 U.S.C. §§ 1602, is inapplicable in this
case.
“The
Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602 et seq., affords the
‘sole basis for obtaining jurisdiction over a foreign state’ in United States
courts. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434
(1989). While the FSIA establishes a general rule granting foreign sovereigns
immunity from the jurisdiction of United States courts, 28 U.S.C. § 1604, that
grant of immunity is subject to a number of exceptions, see id. §§ 16051607. In
their third amended complaint, plaintiffs asserted subject-matter jurisdiction
based solely on the FSIA’s terrorism exception, 28 U.S.C. § 1605A.” [Slip op.
3]
“The
terrorism exception abrogates immunity in cases in which a plaintiff seeks
damages for personal injury or death caused by ‘torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of material support or
resources for such an act,’ if ‘engaged in by an official, employee, or agent’
of a foreign country. 28 U.S.C. § 1605A(a) (1). The exception further requires
that (i) the foreign country was designated a ‘state sponsor of terrorism at
the time [of] the act,’ (ii) the ‘claimant or the victim was’ a ‘national of
the United States’ at that time, and (iii) the ‘claimant has afforded the
foreign state a reasonable opportunity to arbitrate the claim.’ Id. §
1605A(a)(2).” [Slip op. 3]
“Because
Iran has been designated a state sponsor of terrorism since 1984, plaintiffs
satisfy the first of those conditions. See Heiser v. Islamic Republic of Iran,
735 F.3d 934, 937 (D.C. Cir. 2013); Roeder v. Islamic Republic of Iran, 646
F.3d 56, 58 n.1 (D.C. Cir. 2011). Plaintiffs, however, fail to satisfy the
second condition with regard to the torture and extrajudicial killing allegedly
committed against them while in Iran, because none of them was a ‘national of
the United States’ at the time of those acts.” [Slip op. 3]
“The
terrorism exception assigns the term ‘national of the United States’ the ‘meaning
given that term in section 101(a) (22) of the Immigration and Nationality Act’
(INA), 8 U.S.C. § 1101(a)(22). 28 U.S.C. § 1605A(h)(5). The referenced
provision of the INA, in turn, generally describes ‘national of the United
States’ to mean either a ‘citizen of the United States’ or a ‘person who,
though not a citizen of the United States, owes permanent allegiance to the
United States.’ 8 U.S.C. § 1101(a)(22).” [Slip op. 4]
Although
none of the plaintiffs was a United States citizen between 1999 and 2006, when
the central alleged acts of torture and extrajudicial killing occurred in Iran,
they argued that they qualified as United States nationals during that time
because Manouchehr, Akbar, and Nasrin had personally pledged permanent
allegiance to the United States and disclaimed their loyalty to Iran following
the “first signs of persecution” in Iran, and that Nasrin exhibited her
allegiance by applying for and attaining United States permanent resident
status before Akbar’s death in 2006. The Court rejects this argument.
“Plaintiffs’
argument is foreclosed by our precedent. We have held that ‘manifestations of
‘permanent allegiance’ do not, by themselves, render a person a U.S. national.’
Lin v. United States, 561 F.3d 502, 508 (D.C. Cir. 2009). That is because the
‘phrase ‘owes permanent allegiance’’ in 8 U.S.C. § 1101(a)(22) is ‘a term of
art that denotes a legal status for which individuals have never been able to
qualify by demonstrating permanent allegiance, as that phrase is colloquially
understood.’ Marquez-Almanzar v. INS, 418 F.3d 210, 218 (2d Cir. 2005); see
Lin, 561 F.3d at 508 (relying on Marquez-Almanzar). The reference in 8 U.S.C. §
1101(a)(22) to a United States national as a person who ‘owes permanent
allegiance to the United States’ is descriptive of someone who has attained the
status of United States nationality through other statutory provisions; it does
not itself set forth an independent basis by which to obtain that status. The
language, that is, ‘describes, rather than confers, U.S. nationality.’
Marquez-Almanzar, 418 F.3d at 218; see Lin, 561 F.3d at 508. The conferral of
United States nationality must come from elsewhere.” [Slip op. 4]
“The
sole such statutory provision that presently confers United States nationality
upon noncitizens is 8 U.S.C. § 1408. See Lin, 561 F.3d at 508;
Marquez-Almanzar, 418 F.3d at 219. Plaintiffs make no claim that they qualify
as United States nationals under that provision, much less that they did so at
the time of the alleged torture and extrajudicial killing in Iran. Section 1408
describes four categories of persons who ‘shall be nationals, but not citizens,
of the United States at birth.’ 8 U.S.C. § 1408. Those categories generally
consist of persons born in, or possessing a specified personal or parental
connection with, an ‘outlying possession of the United States,’ id. §
1408(1)(4), presently defined as American Samoa and Swains Island, id. §
1101(a)(29). See Lin, 561 F.3d at 508; see also Hashmi v. Mukasey, 533 F.3d
700, 703 n.1 (8th Cir. 2008) (noting that the category of those who owe
‘permanent allegiance to the United States . . . [is] apparently limited to
residents of American Samoa and Swains Island’).” [Slip op. 4-5]
“The
courts of appeals to consider the issue thus have overwhelmingly concluded that
the status of non-citizen United States nationality is limited to those persons
described in 8 U.S.C. § 1408, and that, apart from that provision, an effort to
demonstrate ‘permanent allegiance to the United States’ does not render a person
a United States national. See United States v. Sierra-Ledesma, 645 F.3d 1213,
122426 (10th Cir. 2011); Abou-Haidar v. Gonzales, 437 F.3d 206, 207 (1st Cir.
2006); Omolo v. Gonzales, 452 F.3d 404, 409 (5th Cir. 2006); Sebastian-Soler v.
U.S. Att’y Gen., 409 F.3d 1280, 128587 (11th Cir. 2005); Marquez-Almanzar, 418
F.3d at 21819; Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972 (9th Cir. 2003);
Salim v. Ashcroft, 350 F.3d 307, 30910 (3d Cir. 2003) (per curiam). While one
court of appeals has indicated otherwise, see United States v. Morin, 80 F.3d
124, 126 (4th Cir. 1996), we specifically ‘join[ed] the majority’ approach in
Lin, 561 F.3d at 508. (And the continuing practical force of the Fourth
Circuit’s decision in Morin within that circuit appears unclear. See Fernandez
v. Keisler, 502 F.3d 337, 348 (4th Cir. 2007).) Plaintiffs likewise err in
relying on certain district court decisions attributing United States
nationality to non-citizens based on unique circumstances indicating a
‘permanent allegiance to the United States.’ See Peterson v. Islamic Republic
of Iran, 515 F. Supp. 2d 25, 39 n.4 (D.D.C. 2007); Asemani v. Islamic Republic
of Iran, 266 F. Supp. 2d 24, 26 (D.D.C. 2003). Those decisions predate ours in
Lin.” [Slip op. 5]
Plaintiff
also contended that since 2006, two of the plaintiffs became “nationals” within
the meaning of 8 U.S.C. § 1101(a)(22). Therefore they could establish
jurisdiction under the terrorism exception with respect to events occurring
after Nasrin and Simin became United States citizens.
“[…]
That argument could have merit, however, only if, after Nasrin became a citizen
in 2009, the Iranian regime engaged in conduct against plaintiffs constituting
‘torture, extrajudicial killing, aircraft sabotage, hostage taking, or the
provision of material support or resources for such an act.” See 28 U.S.C. §
1605A(a) (1), (a)(2). According to plaintiffs, the Iranian regime continued to
‘torture’ them in the United States by making threatening phone calls, hacking
certain of plaintiffs’ online accounts, and disseminating doctored, sexually
explicit photographs of Nasrin. We conclude that those alleged acts, while
certainly harassing and objectionable, fail to amount to ‘torture’ within the
meaning of the terrorism exception.”
“The
terrorism exception defines ‘torture’ by reference to the definition of that
term contained in the Torture Victim Protection Act (TVPA), 106 Stat. 73, note
following 28 U.S.C. § 1350. See 28 U.S.C. § 1605A(h)(7). The TVPA, in turn,
defines torture as ‘any act, directed against an individual in the offender’s
custody or physical control, by which severe pain or suffering . . . is
intentionally inflicted on that individual.’ 28 U.S.C. § 1350 (note). It is
doubtful that plaintiffs could be considered to have been in the Iranian
regime’s ‘custody or physical control’ after their relocation to the United
States.”
“Even
assuming otherwise, the challenged acts postdating plaintiffs’ settlement in
the United States fail to satisfy the statute’s severity requirement.
Plaintiffs’ allegations did not involve physical acts against them. And the
nonphysical acts alleged—viz., threatening phone calls made from Iran, hacking
of Facebook and email accounts, and circulation of explicit photographs—fall
short of anything previously held to constitute ‘torture’ within the meaning of
the TVPA. See Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d
230, 234 (D.C. Cir. 2003).” [Slip op. 5-6]
The
Court then addresses to the “hostage taking” argument within the meaning of the
FSIA’s terrorism exception because the Iranian regime refuses to permit
plaintiffs’ parents to leave Iran:
“In
any event, a prohibition on international travel of the kind alleged by
plaintiffs would not constitute ‘hostage taking.’ The statute’s definition of ‘hostage
taking’ incorporates the definition from Article 1 of the International
Convention Against the Taking of Hostages, see 28 U.S.C. § 1605A(h)(2), and
that definition applies to a person who ‘seizes or detains and threatens to
kill, to injure or to continue to detain another person,’ Simpson, 326 F.3d at
234 (internal quotation marks omitted). Even if plaintiffs’ parents are barred
from traveling abroad from Iran, there is no allegation that they have been
‘seized or detained’ within Iran under any ordinary understanding of those
terms. Courts thus have found ‘hostage taking’ in cases involving physical
capture and confinement, not restrictions on international travel. See, e.g.,
Simpson v. Socialist People’s Libyan Arab Jamahiriya, 470 F.3d 356, 358 (D.C.
Cir. 2006); Anderson v. Islamic Republic of Iran, 90 F. Supp. 2d 107, 109111,
113 (D.D.C. 2000).” [Slip op. 6-7]
The
Court concludes:
“Because
plaintiffs fail to satisfy the statutory requirements of the terrorism
exception, Iran, as a ‘foreign state,’ is ‘immune from the jurisdiction’ of
federal courts. See 28 U.S.C. § 1604. The district court concluded that it also
lacked jurisdiction over the Revolutionary Guard because the FSIA defines
‘foreign state’ to include ‘a political subdivision of a foreign state or an
agency or instrumentality of a foreign state,’ id. § 1603(a). Plaintiffs have
forfeited any challenge to that conclusion by failing to contest it on appeal.
See, e.g., World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154,
1160 (D.C. Cir. 2002). Plaintiffs also raise no challenge to the district
court’s determination that foreign sovereign immunity extended to the
individual defendants, Khamenei and Ahmadinejad. Immunity under the FSIA
therefore applies to all defendants.”
“In
a final effort to establish subject-matter jurisdiction, plaintiffs invoke the
Alien Tort Statute, 28 U.S.C. § 1350. The Alien Tort Statute, however, does not
confer any waiver of foreign sovereign immunity. See Amerada Hess, 488 U.S. at
43839; Enahoro v. Abubakar, 408 F.3d 877, 883 (7th Cir. 2005); Siderman de
Blake v. Republic of Argentina, 965 F.2d 699, 713 n.13 (9th Cir. 1992). The
Alien Tort Statute affords jurisdiction for suits against private defendants,
not against foreign sovereigns. The FSIA provides the ‘sole basis for obtaining
jurisdiction over a foreign state.’ Amerada Hess, 488 U.S. at 439. […]” [Slip
op. 7]
The
Court affirms the district court’s dismissal of plaintiffs’ third amended
complaint for lack of subject-matter jurisdiction.
Case: Mohammadi v.
Islamic Republic of Iran, 782 F.3d 9 (D.C. Cir.).
*** Godfrey Muwonge is an attorney in Milwaukee, Wisconsin. Author of “Immigration Reform: We Can Do It, If We Apply Our Founders' True Ideals, Revised Edition” (Univ. Press of America, 2010), which was selected as one of top-10 Books that Drive the Debate (2009) by U.S. Chamber of Commerce's National Chamber Foundation. See
https://www.amazon.com/Immigration-Reform-Apply-Founders-Ideals-ebook/dp/B00D79W838
