United States Court of Appeals, District of Columbia Circuit
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
March 26, 2018
from the United States District Court for the District of
Columbia (No. 1:15-cv-01080)
J. Tolchin argued the cause for appellants. With him on the
briefs was Meir Katz. Rachel E. Weiser entered an appearance.
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.
EDWARDS, SENIOR CIRCUIT JUDGE.
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.
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may serve as a useful reference point, but it is not binding
precedent.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).
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
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.
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
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
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.
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.
The Statutory Framework
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.
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).
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.
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.
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).
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 § 1605A created a new cause of action, it
did not displace a [foreign national] claimant's ability
to pursue claims under applicable state or ...