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How do I Recover Money Damages If I’ve Been Injured in An Act of International Terrorism?

September 16, 2019

As tensions between the United States and Iran continue to escalate and ISIS seems to be once again on the rise in Afghanistan, several people have asked me what legal remedies exist for victims of international terrorism and/or their families.  Under current law there are three possible avenues to recover money damages if you or your loved ones have been injured or killed by an act of international terror.

Bring suit against a “state sponsor of terror” nation under 28 U.S.C. §1650A

The most well-established way for terrorism victims to recover monetary damages is to bring suit against Iran.   In general, the Foreign Sovereign Immunities Act (FSIA) prevents U.S. persons from bringing suit against a foreign nation.  However, in 1996, a terrorism exception to the FSIA was codified under 28 U.S.C. §1650A.  Under §1650A, victims of international terrorism may bring suit directly against a foreign country if that country has been officially designated by the U.S. State Department as a “state sponsor of terror.”

Victims can bring suit for acts of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such acts.   If successful, the plaintiff may collect damages for economic harm, solatium (emotional distress), pain and suffering, reasonably foreseeable property loss, and punitive damages. 

At present there are only four nations listed by the State Department as sponsors of international terror.  These are North Korea, Sudan, Syria, and Iran.  Of these nations, Iran is by far the most significant.  Plaintiffs have won numerous §1650A cases against Iran.  This is largely because Iran has been designated as a state sponsor of terror since 1984, and has consistently been named as the number one state sponsor of terror in the world.  Iran is estimated to provide between $300 million and $500 million dollars of support to international terrorism annually, largely through proxy groups such as Hezbollah, Hamas, and Al Qaeda.[1]    Iran has been held liable in U.S. federal courts for numerous terrorist attacks including the Khobar Towers bombing in Saudi Arabia, the embassy bombings in Kenya and Tanzania, and the terrorist attacks on 9-11, among many others.

However, bringing suit against any foreign nation is a complex process, and this is especially so when that nation is a state sponsor of terror with which the U.S. has little or no diplomatic ties.  There are several procedural hurdles which must be navigated precisely in order for the suit to succeed.  For example, the complaint must first be translated into the nation’s native language, and then served on the defendant through a very complex multi-step process involving several foreign embassies.   This is a time-consuming and expensive process which must be followed exactly if a victim of international terror is to have her day in federal court under the FSIA exception.

Service of process is only the beginning.  Once the defendant nation has been successfully served, it is almost certain that it will refuse to participate in U.S. court proceedings.  When this occurs the plaintiff may seek a default judgment in which the plaintiff presents the case to a U.S. District Court judge.  Although the defendant is not present at trial, the burden is still on the plaintiff to prove the case by “evidence satisfactory to the court.”  This evidence is usually provided by expert witnesses in the field of international terrorism, who are called to explain the linkages between the defendant nation and the particular act of terror for which the plaintiff has brought suit. 

Much of this expert testimony will come in the form of affidavits which are prepared and signed by the experts.  For example, while I was still in law school and serving as a law firm intern, I was able to use some of my experience in the field of national security to assist the plaintiff’s counsel in preparing affidavits to show the connection between Iran and the Houthi rebels in Yemen.  The plaintiffs in that case were two U.S contractors who had been kidnapped and tortured by the Houthis.  On August 7, 2019, Judge Randolph Moss granted a default judgment against Iran in that case, and on September 10, an award was entered for $84 million in compensatory damages, and $168 million in punitive damages.   Judge Moss’ opinion is available here.

As evidenced by this recent verdict, judgments in these cases can be enormous.  For example, in 2010, Iran was found civilly liable for the bombing of the Marine Barracks in Lebanon. The Court awarded the plaintiffs compensatory damages of over $ 6.5 million dollars, and punitive damages of one billion dollars[2].  In 2012 the U.S. District Court for the Southern District of New York found Iran and its proxies liable for providing material support to Al Qaeda in the 9-11 attacks, and issued a default judgment in favor of hundreds of family members of 9-11 victims for nearly $1.4 billion dollars in compensatory damages, and over seven billion dollars in punitive damages.[3]

However, receiving such a large judgment and collecting it are two very different things.  Simply put, the defendant nation will ignore the judgment and refuse to pay.  Fortunately there are several other avenues for successful plaintiffs to collect money damages after receiving a default judgment in a terrorism case.  The most common method is through the United States Victims of State Sponsored Terrorism Fund, or “USVSST Fund.”  This fund is intended to compensate eligible victims of state-sponsored terrorism who hold a final judgment by a U.S. District Court. 

People often ask me whether the USVSST is funded through taxpayer dollars, and are happy to hear that the answer is no.  The account is administered by the Department of Justice.  It is funded through forfeiture proceeds, penalties, and fines imposed in civil and criminal matters involving prohibited transactions with state sponsors of terrorism.  In other words, USVSST is funded by money seized from terrorists and their supporters.  The fund is quite large.  Upon its inception in 2015, Congress funded the USVSST with $1.025 billion in seized monies and fines.  Recent prosecutions and enforcement actions have increased the total available in the fund to more than $1.1 billion.

The fund pays out annually to eligible plaintiffs using a complex formula based on each plaintiff’s pro rata share of the available money in the USVSST fund that year.  There are several restrictions which limit the amount of money that plaintiffs can collect from the USVSST.  For example, the fund only compensates plaintiffs for their compensatory damage awards, not for punitive damages.  Although plaintiffs cannot reasonably expect to receive the full amount of their default judgments, the annual payouts can be very large indeed. 

For a more complete explanation of §1650A, the links between Iran and international terror, and a thorough explanation of the USVSST payout formula with examples, see my article published in the in the Spring 2019 edition of the Journal of Global Justice and Public Policy

Bring suit against an individual for aiding and abetting international terrorism

Although less well-established than the FSIA exception described above, 18 U.S.C. §2333, better known as the Anti-Terrorism Act or “ATA,” allows a plaintiff to bring suit directly against a person, corporation, or partnership for injuries sustained in acts of international terrorism.[4]  This allows a plaintiff to bring suit against a much wider range of defendants than is possible under the FSIA exception which limits the plaintiff to bringing suit against state sponsors of terror.  

Up until a few years ago the ATA allowed victims to bring suit only against persons who were primarily responsible committing acts of international terrorism.   In other words, victims could only bring suit against the terrorists themselves.   Obviously this presented many challenges, since the terrorists involved in these attacks were often deceased or very difficult to locate.

However, the ATA was profoundly changed on September 28, 2016, when the U.S. Congress over-rode President Obama’s veto and passed an amendment to the ATA.  This amendment, called the Justice Against Sponsors of Terrorism Act, or “JASTA,” extends civil liability to any person who aids or abets an act of international terror, or who conspires with the person who committed the act.  Conspiracy and aiding/abetting are commonly known in legal parlance as “secondary liability,” because the defendants are not being accused of committing the acts themselves, but rather of providing support to the actor.   Upon passing JASTA, Congress stated that its intent was to provide terror victims with the “broadest possible basis . . . to seek relief against persons . . . that have provided material support, directly or indirectly, to foreign organizations or persons that engage in terrorist activities against the United States.”[5]

As with the FSIA exception, there are limits to a plaintiff’s ability to bring suit under the ATA.  First and foremost, the plaintiff must establish that the Court has “personal jurisdiction” over the defendant.   This means that the defendant must have some connection with the United States such that he/she should reasonably expect to be subject to our courts.  Fortunately, this does not mean that the defendant must reside in the United States.  In fact, in some cases personal jurisdiction has been satisfied when the plaintiff can show that the foreign defendant aided and abetted a terrorist act that was specifically aimed at the United States.  This is true even for attacks that took place in other countries.  For example, personal jurisdiction has been established over Osama bin Laden and al Qaeda for their attacks against U.S. interests on foreign soil, because these defendants are known to specifically target the United States citizens overseas. [6]  On the other hand, attacks which are not targeted at the U.S. but are random in nature may not meet the personal jurisdiction requirements under the ATA.[7]

Additionally, in order to bring suit under the ATA, the plaintiff’s injury must have been caused by a group which was designated as a Foreign Terrorist Organization (FTO) on the date that the act was committed.  Therefore the statute does not apply to any domestic terror group, nor to any terror group which has not been designated as an FTO.  Fortunately most active international terror groups have already been designated as FTOs.

The ATA is a rapidly-developing area of law.  Perhaps because the JASTA amendment is so new, there is little uniformity among the Federal Circuits as to how strictly secondary liability should be interpreted in terrorism cases.  On one hand, despite Congress’ clear intent to the contrary, some federal circuits still require the plaintiff to prove that the defendant was primarily responsible for the terrorist act in order to recover under the ATA.  On the other hand, some circuits interpret the ATA more liberally and require only that the defendant provided some sort of material support to the FTO which carried out the attacks.

For a more thorough explanation of the ATA and the different interpretations of secondary liability, see my article published in the in the Spring 2019 edition of the Journal of Global Justice and Public Policy

File a claim under the Defense Base Act

The Defense Base Act provides workers’ compensation insurance to civilian employees who work outside of the United States on U.S. military bases or under a contract with the U.S. government for public works or for national defense.   A successful claimant can receive medical benefits for all related injuries for as long as medically required, including a lifetime award in some cases.  Claimants can also receive monthly disability payments which vary depending on the severity of the injury and the pre-injury wage rate of the employee.  In the event that the civilian worker is killed, his/her surviving spouse or child may receive death benefits including burial expenses and monthly payments up to 50% of the deceased worker’s average weekly wage.  Surviving spouses may receive this for life.  Surviving children are eligible until age 18, or if the child is enrolled as a full-time student, until age 23.

As with all workers’ compensation cases, a DBA claim must be filed within specific timeframes and meet certain criteria.  As a workers’ compensation attorney, I have seen many otherwise compensable claims denied because these requirements were not met.  Although a claimant need not have an attorney in order to file under the DBA, it is advisable to seek legal counsel from an experienced workers’ compensation lawyer before filing a claim.

Conclusion

The FISA exception, the JASTA amendment to the ATA, and the Defense Base Act are three very different but interrelated ways in which a victim of international terrorism may be compensated for his/her injuries or loss.  In some cases a victim can pursue all three avenues simultaneously.  Each method has pros and cons, and they are all quite complex.  If you or a loved one has been the victim of international terror, legal counsel can help navigate the process of seeking compensation.  

Bryan Peeples is a Pender & Coward attorney focusing his practice on national security and military law, workers’ compensation, and waterfront property and environmental law.

[1] Valore v. Islamic Republic of Iran, 700 F.Supp 2d 52, 87-88 (D.C. Cir., 2010)

[2] Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 89–90 (D.D.C. 2010)

[3] In Re Terrorist Attacks on September 11, 2001: Fiona Havlish et al v. Usama Bin Laden et al, Civil Action No. 03 MDL 1570 (GBD) (FM); 03-CV-9848 (GBD) (FM).

[4] 18 U.S.C. §2333

[5] Pub. L. 114–222, § 2, Sept. 28, 2016, 130 Stat. 852

[6] Mwani v. Bin Laden, 417 F.3d 1 (D.C. Cir. 2005)

[7] See Waldman v. Palestine Liberation Organization, 835 F.3d 317 (2nd Cir., 2016)(finding a lack of personal jurisdiction over the PLO for terrorist attacks conducted in Israel when there was no evidence that the killings had specifically targeted American citizens)

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