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Sprecher Fraenkel v. Islamic Republic of Iran

United States Court of Appeals, District of Columbia Circuit

June 8, 2018

Rachel Devora Sprecher Fraenkel, Individually, As Personal Representative of the Estate of Yaakov Naftali Fraenkel, and as the Natural Guardian of plaintiffs A.H.H.F., A.L.F., N.E.F., and S.R.F., et al., Appellants
Islamic Republic of Iran, Ministry of Foreign Affairs, et al., Appellees

          Argued March 26, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-01080)

          Robert J. Tolchin argued the cause for appellants. With him on the briefs was Meir Katz. Rachel E. Weiser entered an appearance.

          Harry Phillips, Student Counsel, argued the cause as amicus curiae to present arguments in support of portions of the District Court's orders at issue on appeal. With him on the brief were Erica J. Hashimoto, appointed by the court, and Joseph Flanagan and Vetone Ivezaj, Student Counsel.

          Before: Griffith, Circuit Judge, and Edwards and Randolph, Senior Circuit Judges.



         On June 12, 2014, sixteen-year-old Yaakov Naftali Fraenkel ("Naftali") and two of his classmates were taken hostage by members of Hamas while on their way home from school in Israel's West Bank. A half-hour after they were taken hostage, the boys were killed by their captors. Naftali's family brought suit in District Court against the Islamic Republic of Iran, Ministry of Foreign Affairs ("Iran"), the Iranian Ministry of Information and Security, and the Syrian Arab Republic ("Syria") (collectively, "Appellees") under the terrorism exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605A, for providing material support to Hamas. The defendants failed to respond to the complaint and the District Court entered a default judgment in favor of the Fraenkels, awarding Naftali's estate $1 million for his pain and suffering and $50 million in punitive damages, and his family $4.1 million in solatium damages. See Fraenkel v. Islamic Republic of Iran (Fraenkel I), 248 F.Supp.3d 21, 43 (D.D.C. 2017). This appeal concerns a challenge by the Fraenkels to the amount of damages awarded them.

         The Fraenkels argue that the District Court erred in failing to determine the solatium damages awards in conformity with the remedial scheme established in Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (D.D.C. 2006). We reject this claim. The decision in Heiser may serve as a useful reference point, but it is not binding precedent. District Court judges have discretion under 28 U.S.C. § 1608(e) to grant solatium awards based on the particular facts of each case, subject to abuse-of-discretion review for errors of law, clearly erroneous factual findings, and faulty reasoning. See Hill v. Republic of Iraq, 328 F.3d 680, 683 (D.C. Cir. 2003).

         The Fraenkels also contend that the District Court erred in awarding solatium damages in amounts less than the damages awarded in Gates v. Syrian Arab Republic, 580 F.Supp.2d 53 (D.D.C. 2008). In justifying its decision, the District Court explained that, unlike the victims in Gates - American contractors servicing the U.S. military during the Iraq War - Naftali was not targeted for being an American. Although Naftali was a U.S. citizen, the District Court found that he was captured and killed because he was Jewish-Israeli. The District Court also found that the location of the Fraenkels' home, Naftali's school, and the site of the abduction indicated that Naftali and his family had "accepted the risk" of terrorist attacks. Based on these considerations, the District Court awarded solatium damages to Naftali's family members that were lower than the amounts awarded to the plaintiffs in Gates.

         The Fraenkels claim that the District Court abused its discretion in awarding solatium damages because the court's judgment was based on impermissible considerations and clearly erroneous findings of fact. We agree.

         For the reasons explained below, we reverse the District Court's judgment on the solatium damages awards and remand for further consideration. We affirm the District Court's punitive damages and pain-and-suffering awards because the judgments with respect to those awards were consistent with the applicable law, adequately reasoned, and supported by the evidence.

         I. Background

         A. Factual Background

         Yaakov Naftali Fraenkel, a sixteen-year-old with Israeli and U.S. citizenship, attended boarding school in the Gush Etzion region of Israel's West Bank. His mother, father, and six siblings lived in Nof Ayalon, an Israeli settlement that straddles the Green Line. On the evening of June 12, 2014, Naftali headed home from school accompanied by two classmates, Gilad Shaer and Eyal Yifrach. The boys waited at a junction in Alon Shvut to hail a ride from passing cars. According to Naftali's mother, Rachelle Fraenkel, "[t]he boys thought they were getting a ride home in a spot where hitchhiking is very normal and usually safe." Declaration of Plaintiff Rachelle Fraenkel, at 8 ¶ 43 (June 27, 2016), reprinted at Appendix ("App.") 107.

         Around 10:00 p.m., a car stopped for the young men. Inside were two members of Hamas, who abducted the boys at gunpoint. Around 10:30 p.m., Israeli emergency services received a telephone call. The police heard a voice that sounded like Gilad, who said that the boys had been kidnapped; they also heard another voice speaking in Arabic and Hebrew saying "put your head down." The police then heard muffled sounds of gunshots and a person moaning in physical pain. It was later determined that the terrorists had shot and killed each boy. After eighteen days of searching, the boys' bodies were found on land owned by the head of a Hamas cell. On August 20, 2014, Hamas officially took responsibility for the kidnapping and murders of Naftali, Gilad, and Eyal.

         On July 9, 2015, the Fraenkels brought this civil action in District Court, alleging that Iran, the Iranian Ministry of Information and Security, and Syria materially supported Hamas in connection with Naftali's kidnapping and murder.

         B. The Statutory Framework

         Foreign states are immune from the jurisdiction of federal courts, subject to certain exceptions codified in the Foreign Sovereign Immunities Act of 1976 ("FSIA"). 28 U.S.C. § 1604; see Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989) ("[T]he FSIA [is] the sole basis for obtaining jurisdiction over a foreign state in federal court."). The Fraenkels' action relies upon one such provision in the FSIA, known as the "terrorism exception" to sovereign immunity. See 28 U.S.C. § 1605A.

         It is well understood that, over the years, Congress has amended the FSIA to allow "massive judgments of civil liability against nations that sponsor terrorism." Leibovitch v. Islamic Republic of Iran, 697 F.3d 561, 571 (7th Cir. 2012); see also Owens v. Republic of Sudan, 864 F.3d 751, 763-65 (D.C. Cir. 2017). These legislative actions obviously have aimed to deter state-sponsored terrorism. Consistent with this legislative goal, § 1605A provides federal courts with jurisdiction over, and withdraws sovereign immunity from, suits

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. § 1605A(a)(1).

         Section 1605A also creates a federal cause of action directly against foreign governments. Under § 1605A(c), "national[s] of the United States" may sue certain foreign governments - those designated by the U.S. government as state sponsors of terrorism - for the acts described in § 1605A(a)(1) causing "personal injury or death." Id. § 1605A(c). The statute specifies that, "[i]n any such action, damages may include economic damages, solatium, pain and suffering, and punitive damages." Id.

         In order to obtain a default judgment in a § 1605A action, plaintiffs must "establish[] [their] claim or right to relief by evidence satisfactory to the court." Id. § 1608(e). Upon obtaining a default judgment, successful plaintiffs may recover damages by proving "that the projected consequences are reasonably certain (i.e., more likely than not) to occur, and must prove the amount of damages by a reasonable estimate." Hill, 328 F.3d at 684. Although these requirements "give an unresponsive sovereign some protection against an unfounded default judgment, " plaintiffs need not submit "more or different evidence than [a court] would ordinarily receive; indeed, the quantum and quality of evidence that might satisfy a court can be less than that normally required." Owens, 864 F.3d at 785.

         The courts are not authorized to craft a body of federal common law in deciding FSIA terrorism exception claims. See Bettis v. Islamic Republic of Iran, 315 F.3d 325, 333 (D.C. Cir. 2003). However, a district court may rely on well-established statements of common law, found in state reporters, the Restatement of Torts, and other respected treatises, in determining damages under § 1605A(c). See id.

         Finally, foreign national family members of an American victim, who do not have a cause of action under § 1605A(c), "may continue to pursue claims under applicable . . . foreign law." Leibovitch, 697 F.3d at 572. "Although ยง 1605A created a new cause of action, it did not displace a [foreign national] claimant's ability to pursue claims under applicable state or ...

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