Murphy v. Islamic Republic of Iran, 06-cv-596 (RCL) (D.D.C. 9/24/10), decided by the Chief Judge of the District Court for the District of Columbia, is a painful (the claims arise out of the Beruit bombing of Oct. 23, 1983) and painstaking analysis of the affirmative use of the state sponsored terrorism exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1330, 1602-1611. With recent amendments to the FSIA, including as part of the National Defense Authorization Act for Fiscal Year 2008, Congress added § 1605A to the FSIA.
Section 1605A is a “terrorism exception that provides an independent federal cause of action” and makes punitive damages available in the proper case. The existence of an independent federal claim – rather than needing to rely on state tort law to supply the substantive law – constitutes a nearly-unique use of the FSIA.
Murphy goes through the elaborate procedural protections given to an international defendant before liability can be imposed under this affirmative use of a federal statute. At the end of the analysis, the Court imposes such liability on Iran and its instrumentality.
Of note are the following additional rulings – they are noteworthy because they vary between being fairly uncommon and entirely uncommon in typical international litigation:
First, under § 1605A, a plaintiff may seek to take advantage of the new federal statute retroactively – that is, the statute applies even to prior actions brought under the prior version the state sponsored terrorism exception of the FSIA (28 U.S.C. § 1605(a)(7) (which did not create a federal cause of action). Specifically, a plaintiff may invoke § 1605A retroactively, or with respect to a “related action”, or as part of a stand-alone action. Retroactive invocation is timely so long as the claim is asserted “not later than the latter of 60 days after the date of the entry of judgment in the original action” or January 28, 2008, the date of enactment of the statute.
Second, the Court reviewed the record and findings made in a different case from the District of Columbia District, Peterson v. Islamic Republic of Iran, 515 F.Supp. 2d 25 (D.D.C. 2007). The Murphy Court determined that it could take judicial notice of facts “not subject to reasonable dispute in that [they are] . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned” (quoting Fed. R. Evid. 201(b)). Judicial notice, however, did not carry with it accepting the truth of the underlying findings made in the other proceedings. To achieve that the Court examined the record in Peterson – “review[ing] evidence considered in an opinion that is judicially noticed, without necessitating the re-presentment of such evidence”. The key evidence that the Court then considered demonstrated that Hezbollah, the organization responsible for the bombing, was operating as an adjunct or unit of Sovereign Iran. The Court found these facts to be true.
Third, in ruling on subject matter and personal jurisdiction issues, the Court found that “foreign states are not ‘persons’ protected by the Fifth Amendment – or as the D.C. Circuit Court of Appeals has stated, “as a constitutional matter, there is no constitutional matter” (I.T. Consultants, Inc. v. Republic of Pakistan, 351 F.3d 1184, 11919 (D.C. Cir. 2003)).