Opinion
Civ. No. 01-2517 (TFH)
August 21, 2003
MEMORANDUM
On December 7, 2001, the plaintiff, Edward Tracy, an Incapacitated Person, by Charles Murphy, Esquire, his guardian filed the instant action alleging that defendants, the Islamic Republic of Iran and the Iranian Ministry of Information and Security, were responsible for the abduction, torture, and detention in Lebanon for a period of 1755 days of Edward Tracy. The defendants were properly served with process pursuant to 28 U.S.C. § 1608(a)(4)., but failed to answer, thus on February 6, 2003, the Clerk of the Court entered default against both defendants
The Court held an evidentiary hearing in this case on August 5, 2003 in order to determine whether a default judgment may be entered against the defendant foreign state pursuant to 28 U.S.C. § 1608(e). The plaintiff proceeded in this matter by means of a non-jury trial before the Court; and the following findings of fact are based upon the sworn testimony of witnesses, presented live, via videotaped deposition, or via transcripts of sworn testimony given in prior similar matters, as well as the documentation entered into evidence in accordance with the Federal Rules of Evidence. Based on the evidence presented, the Court finds a default judgment is merited as the plaintiff has "establishe[d] [his] claim or right to relief by evidence that is satisfactory to the Court." 28 U.S.C. § 1608(e). Pursuant to Fed.R.Civ.P. 52(a), the Court will set forth the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. Plaintiff Edward Tracy ("Plaintiff', or "Tracy") is an incapacitated person by reason of suffering from a schizotypal disorder resulting from his incarceration as a hostage in Beirut, Lebanon, Tracy is currently a domiciliary and resident of the state of Massachusetts, who is, and at the time of the acts alleged in this action was, a citizen of the United States.
2. Charles Murphy, Esquire, is an adult individual and licensed attorney in the Commonwealth of Massachusetts. Mr. Murphy is the guardian of the person of plaintiff Edward Tracy, duly appointed by the Suffolk Division of the Massachusetts Probate and Family Court on May 17, 1993, under Docket No. 92P 0895. Mr. Murphy is not related to any party to this action.
3. On or about October 21, 1986, Tracy was abducted by members and/or agents of the terrorist organization Hezbollah in Beirut, Lebanon. At the time of his abduction, Tracy was a civilian residing and working as a salesman in Beirut, Lebanon. Very shortly after his abduction, he was moved by his captors to quarters of incarceration in which, for approximately 4.8 years of captivity, he was kept almost constantly chained to fellow hostage Joseph Cicippio, who testified before this Court and provided stark and shocking details of Tracy's ordeal at the hands of Hezbollah.
4. At the hearing of this matter Mr. Cicippio testified before this Court to the following with respect to Mr. Tracy: When Tracy first arrived, his physical and mental condition seemed normal. Although. Mr. Cicippio endured many beatings and psychological torture, the beatings and psychological torture inflicted upon Tracy was even much worse, apparently because the terrorist captors believed that Tracy worked for the CIA. (Cicippio, pp. 7-9, 10-13, 23.) Cicippio describes one representative example of Tracy being brutally beaten by his guards with a very thick length of cable, and Tracy's tormentors ignoring his repeated screams of "please don't hit me anymore." (Cicippio, pp. 21-22) As time and this unending ordeal progressed, Cicippio watched helplessly as Tracy's physical and mental condition steadily deteriorated, day by day, year by year, to the point where Tracy became barely lucid and lost all reasonable touch, with reality. Tracy would frequently stay awake all night, moaning, weeping and talking incoherently to himself or nonexistent persons. Often, his captors would brutally beat Tracy for behaving in this fashion, despite the fact that such behavior was brought on by the very captivity and torture to which they were subjecting him. Tracy was constantly threatened with death and kept in a state of constant fear during his entire captivity. (Cicippio, pp. 12-18, 20-21, 23, 26, 28, 33.) Tracy's living conditions, together with Cicippio, were horrifyingly filthy, squalid and inhumane. He was unable to bathe for the first two and one-half months. (Cicippio, p. 14). Tracy and Cicippio were repeatedly moved from one location to another, often crammed into the trunks of cars or small compartments built into the bottom of trucks. (Cicippio, p. 13). For an entire winter, Tracy and Cicippio were kept chained together on a dark and freezing-cold outdoor balcony attached to a high-rise building (Cicippio, p. 15-16); and they each were kept blindfolded during virtually the entire time of their captivity. (Cicippio, p. 17) Tracy and Cicippio were kept constantly chained by legs and wrists to their various cells, as well as to each other, by very short lengths of chain. (Cicippio, p. 19). Their quarters were kept airless and pitch black, and were infested by rats, ants, scorpions and other vermin, which they could feel walking over their bodies at night (Cicippio, pp. 24-26.) Tracy was held captive for 1,755 days, or approximately 4.8 years. He was released from captivity on August 11, 1991.
5. By virtue of his having been held hostage for 1,755 days in brutal and inhumane conditions, Tracy endured excruciating physical discomfort, torture and injury, mental anguish, depression, humiliation, anxiety, and pain and suffering. More specifically, not only did his physical condition steadily deteriorate during his captivity, his mental and emotional condition deteriorated to shocking proportions. According to his medical records, Tracy has been diagnosed as suffering from a schizotypal disorder, which has left him incompetent, incapacitated, unable to be gainfully employed and unable to live outside an institutional setting. Medical records further indicate multiple fractures to Tracy's ribs and clavicle. As there is no record evidence that Tracy suffered any of these injuries prior to his captivity, it can reasonably be presumed that he sustained these injuries as the result of the severe beatings he sustained at the hands of his Hezbollah captors during his captivity. Due to his ongoing incapacity, he remains under court-supervised guardianship, and is currently living in an institutional facility under the auspices of the Veteran's Administration. He is expected to remain under such or similar residential care for the remainder of his life.
6. While held in captivity, Tracy was deprived of his regular employment and all promotion and career advancement opportunities, as well as future employment opportunities. In addition, Tracy was unable to work and increase his income over time in order better to provide financially for his family during his captivity and subsequently.
7. According to his medical records and the testimony of his guardian, Charles Murphy, Esquire, Tracy has been educated at the University of Pennsylvania, and served as an officer in the United States Air Force. For several years prior to, and at the time of, his abduction by Hezbollah, he worked abroad, most recently in Lebanon, as a salesman of publications. He was unable to work during the entire time of his captivity. Moreover, the brutal abuse he suffered at the hands of his captors, and the long-term, permanent effects of that captivity and abuse, has rendered him incapable of any gainful employment from the tune of his release through the present time.
8. Due to Tracy's present incapacity, which is the direct result of his captivity and brutal conditions during same, Tracy was unable to testify directly before this Court. Because Tracy worked almost exclusively outside the United States for many years prior to his abduction and captivity, there are no American records available independently reflecting the precise amount of his earnings during this time; however it can be, and is, presumed that he earned sufficient income to support himself prior to his captivity, and that he would have been able to similarly support himself, following his release, and until a reasonable age of retirement, had he not become incapacitated by his captivity and the abusive treatment he sustained while in such captivity.
9. According to statistics provided by the United States Census Bureau and the American Council of Education Center for Policy Analysis, the average earnings in constant year 2000 U.S. dollars of a male with a bachelor's degree for the period from 1992 through 1999 was $439,875. (Per evidence supplied by Charles Murphy, Esquire; see also Statistics of average earnings generated by the United States Census Bureau and the American Council of Education Center for Policy Analysis) The Court notes that this calculates to $62,839 per year. Applying this figure to the time of Tracy's abduction in 1986 through the year 2000 (when it is reasonable to presume that Tracy would probably have voluntarily retired from all employment at approximately age 70 had he been able to be gainfully employed after his release), Tracy incurred wage losses of at least $879,746 (in year 2000 dollars) due to the torts committed against him by the Defendants.
10, Tracy has incurred and paid, out of his own funds, the following expenses as a result of the disability and incapacity caused by his captivity and treatment:
Legal fees; guardianship petition $ 3,645.00 Fiduciary fees; temporary guardianship $ 6,218.75 Fiduciary fees; permanent guardianship through 1999 $ 16,114.78 Fees paid to Guardians Ad Litem re: review of guardianship accounts $ 1,425.00 Fees paid for probate bonds $ 4,352.00 Probate court fees $ 544.39 TOTAL $ 32,299.92 (Per evidence supplied by Charles Murphy, Esquire)11. Tracy has also personally incurred the following liabilities, as yet unpaid, resulting from his captivity and resulting disability:
Veteran's Administration Hospital $10,889.21 Fiduciary fees; July 1999-2002 $10,000.00 (estimate) TOTAL $20,889.21(Per evidence supplied by Charles Murphy, Esquire)
12. Tracy is currently charged $300 per month as co-pay for each month of his ongoing hospitalization resulting from his captivity and resulting disability, (Per evidence supplied by Charles Murphy, Esquire) Mr. Tracy was born on November 20, 1930. (Tracy medical records) According to U.S. Department of Labor tables of life expectancy, the life expectancy of a male turning age 60 in 1990 (as did Tracy) is approximately age 80. (Table of life expectancy, U.S. Dept of Labor). This figure, projected out at 87 months from the present time until Tracy turns age 80, calculates to a figure of $26,100 (without adjusting for future inflation).
13. Tracy's captors were members of the Hezbollah., a politico-paramilitary group responsible for carrying out acts of terrorism in Lebanon. Hezbollah has claimed responsibility for and in fact perpetrated the terrorist acts which consisted of taking Tracy as a hostage in Lebanon, as well as his subsequent captivity and torture. (Testimony of Harry Brandon, Patrick Clawsen, Oliver North, David Hurley, Bruce Teftt.)
14. Defendant the Islamic Republic of Iran ("Iran") is a foreign state that has been designated a state sponsor of terrorism pursuant to section 6(j) of the Export Administration Act of 1979, 50 U.S.C. § 2405(j), and section 620A of the Foreign Assistance Act of 196.1, 22 U.S.C. § 2371, since January 19, 1984. (Testimony of Harry Brandon, Patrick Clawsen, Oliver North, David Hurley, Bruce Teftt.)
15. Iran provides material support and resources to Hezbollah, a politico-paramilitary terrorist organization operating in Lebanon. Iran sponsors Hezbollah, within the meaning of 28 U.S.C. § 1605(a)(7) and 26 U.S.C. § 1605, by providing it with funding, direction, and training for its terrorist activities in Lebanon. At all times material hereto, especially with regard to Tracy, Iran acted by and through Hezbollah. In such capacity, Iran caused Tracy to be abducted, tortured, and held as a hostage for 1,755 days in Lebanon. (Testimony of Harry Brandon, Patrick Clawsen, Oliver North, David Hurleys Bruce Teftt,)
16. Defendant the Iranian Ministry of Information and Security ("MOIS") is the Iranian intelligence service, and functions both within and beyond Iranian territory. At all times material hereto MOIS acted as part and parcel of the Islamic Republic of Iran; and in such capacity, performed acts which caused Tracy to be abducted, tortured, and held as a hostage for 1,755 days in Lebanon. Specifically, Iran used the facade and/or structure of MOIS as a conduit for the Islamic Republic of Iran's provision of funds, training, and direction to Hezbollah for its terrorist activities in Lebanon, including the specific actions relating to Tracy's kidnaping and captivity. (Testimony of Harry Brandon, Patrick Clawsen, Oliver North, David Hurley, Bruce Teftt.)
17. At all relevant times, the Islamic Republic of Iran, through its facade and/or structure of MOIS, provided material resources and support, in the form of funding, training, and direction to Hezbollah. In providing said material resources and support, MOIS was acting within the scope of its capacity as the alter ego of, and as part and parcel of, the government of the Islamic Republic of Iran. (Testimony of Harry Brandon, Patrick Clawsen, Oliver North, David Hurley, Bruce Teftt.)
18. Tracy is a victim of "torture" as defined in section 3 of the Torture Victims Protection Act of 1991 ( 28 U.S.C. § 1350 note), pursuant to 28 U.S.C. § 1605(a)(7) and 1605(e)(1).
19. Tracy was a victim of "hostage taking" as defined in Article 1 of the International Convention Against the Taking of Hostages, pursuant to 28 U.S.C. § 1605(a)(7) and 1605(e)(1).
20. Tracy has suffered "personal injury" as the result of Defendants' actions and activities as defined in 28 U.S.C. § 1605 (a)(7).
21. In an effort to obtain the release of the hostages, including Tracy, Col, Oliver North, then a member of the President's National Security Council, traveled to Iran in May of 1986 to meet with Iranian officials. Col. North testified that Iran's demands were unreasonable; however, it was clear that if those demands had been met, Iran would have directly caused the hostages, including Tracy, to be released. (Testimony of Col. Oliver North)
22. Iran spends approximately $75 million each year in support of terrorist activities. (Notes of testimony of Dr. Patrick Clawsen, Col. David Hurley and Harry B. Brandon).
23. The United States State Department has classified Iran as one of the most active and dangerous of the state sponsors of terrorism. (Patterns of Global Terrorism, April 1998, p. 31; April 1993, p. 22).
24. In sponsoring the terroristic activities of Hezbollah, Iran acted directly through its President and other senior governmental officials, who acted within the scope of their respective offices, (Notes of testimony of Col. Oliver North, Col. David Hurley and Dr. Patrick Clawsen).
25. Iran's oil exports generate income of approximately $ 12 billion per year. (Notes of testimony of Dr. Patrick Clawsen).
CONCLUSIONS OF LAW
I. CONCLUSIONS OF LAW WITH RESPECT TO JURISDICTION
A. THE FOREIGN SOVEREIGN IMMUNITIES ACT CONTROLS THIS ACTION As tills action is brought against a foreign state, the Foreign Sovereign Immunities Act of 1976, 28 U.S.C.A. §§ 1602- 1611 et seq., as amended, controls this action. The Foreign Sovereign Immunities Act must be applied in every action involving a foreign state defendantVerlinden B.V. v. Central Bank of Nigeria. 461 U.S. 480, 103 So. Ct 1962 (1983); 28 U.S.C. § 1330. The sole basis for subject matter jurisdiction in an action against a foreign state defendant are the Foreign Sovereign Immunities Act's enumerated exceptions to immunity. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 109 So. Ct 683 (1989). This court lacks jurisdiction over this matter unless it falls within one of the Foreign Sovereign Immunities Act's enumerated exceptions to foreign, sovereign immunity. Nelson v. Saudi Arabia. 507 U.S. 349, 355 (1993).
1. RECENT AMENDMENTS TO THE FOREIGN SOVEREIGN IMMUNITIES ACT CREATES SUBJECT MATTERS JURISDICTION IN FEDERAL CAUSES OF ACTION FOR CERTAIN ACTS OF STATE SPONSORED TERRORISM.
In the Anti-Terrorism and Effective Death Penalty Act of 1996, Congress lifted the immunity of foreign states officially designated by the Department of State as terrorist states, if the foreign, state-commits a terrorist act or provides material support and resources to an individual or entity which commits such an act which results in the death or personal injury of a United States citizen. See 28 U.S.C.A. § 1605(a)(7); See also H.R. Rep. No. 383, 104th Cong., 1st Session 1995 at.137-38, available at. 1995 WL 731698.
2. 28 U.S.C.A. § 1605(A)(7) APPLIES RETROACTIVELY FOR THE PURPOSES OF ESTABLISHING SUBJECT MATTER AND PERSONAL JURISDICTION.
Although the plaintiffs were released from captivity more than five years prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C.A. § 1605(a)(7) provides the basis for subject matter jurisdiction. Congress has expressly directed the retroactive application of 28 U.S.C.A. § 1605(a)(7) in order to further a comprehensive counter terrorism initiative by the legislative branch of government:
The amendments made by this subtitle shall apply to any' cause of action arising before, on or after the date of the enactment of this act [April 24, 1996].
3. FEDERAL COMMON LAW PROVIDES THE RULES OF DECISION IN CASES BROUGHT PURSUANT to 28 U.S.C.A. § 1605(a)(7)
The federal choice of law rule follows that of the Restatement (Second) of Conflicts, which provides that the law of the tort is to apply. When another jurisdiction however has a stronger interest and closer connections to the case, it is appropriate to apply that jurisdiction as Law. Restatement (Second) of Conflicts § 175 (1969). Although the actions complained of in the instant case took place in Lebanon, the United States has a much stronger interest than Lebanon in adjudicating this action arising from the kidnaping and torture of United States citizens.
Moreover, as explained in Flatow v. Islamic Republic of Iran, et al., 999 F. Supp. 1 (D.D.C. 1998), the amendment of 28 U.S.C.A. § 16O5(a) indicated Congressional intent that the federal courts create coherent national standards to support this initiative of national significance. The utilization of federal common law will promote uniformity of determinations with respect to the liability of foreign states for terrorists acts.
4. THE EXTRA-TERRITORIAL APPLICATION OF THE FOREIGN SOVEREIGN IMMUNITY ACTS RECENT AMENDMENTS IS PROPER.
Article One of the Constitution establishes that Congress has "authority to enact laws applicable to conduct beyond the territorial boundaries of the United States." EEQC v. Aramco. 499 U.S. 244, 111 S. Ct 1227 (1991). Congressional intent and legislative purpose demonstrate that 28 U.S.C.A. § l605(a)(7) not only applies to extra-territorial conduct, but also that one of its express purposes is to affect the conduct of terrorist states outside the United States in order to promote, the safety of United States citizens traveling overseas. See 142 C.R. S3454-l (April 17, 1996) (remarks of Senator Hank Brown on consideration of the conference report); 142 C.R. H2129-05, H2132 (March 13, 1996) (remarks of Representative Ileana Ros-Leahtinen on the proposed Anti-Terrorism Act); See 2A Southerland on Statutory Construction § 45.05, § 45.09. Congress intended 28 U.S.C.A. § 1605(a)(7) to create subject matter jurisdiction for claims arising from conduct which occurred within a foreign state.
B. SUBJECT MATTER JURISDICTION.
In order to establish subject matter jurisdiction pursuant to 28 U.S.C.A. § 1605(a)(7), a claim must contain the following statutory elements:
(1) that personal injury or death resulted from an act of torture, extrajudicial killing, aircraft sabotage, or hostage taking; and
(2) the act was either perpetrated by the foreign state directly or by a non-state actor which receives material support or resources from the foreign state defendant; and
(3) the act or the provision of material support or resources is. engaged-in by an agent, Official or employee of the foreign state while acting within the scope of his or her office, agency or employment; and
(4) that the foreign state be designated as a state sponsor of terrorism either at the time the incident complained of occurred or was later so designated as a result of such act; and
(5) if the incident complained of occurred with the foreign state defendant's territory, plaintiff has offered the defendants a reasonable opportunity to arbitrate the matter; and
(6) either the plaintiff or the victim was a United States national at the time of the incident; and
(7) similar conduct by United States agents, officials, or employees within the United States would be actionable,
1. TORTURE AND HOSTAGE TAKING ARE DEFINED BY THE 1996 AMENDMENT TO THE ACT.
Sections 1605(e)(1) and (2) of the Foreign Sovereign Immunities Act provides guidance with regard to interpreting the terms `"torture" and "hostage taking." Article One of the International Convention Against the Taking of Hostages defines the term "hostage taking" as:
[a]ny person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the "hostage") in order to compel a third party, namely, a State, an intentional intergovernmental organization, a natural or juridical persona, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offense of taking of hostages within the meaning of this Convention.
"Torture" is defined in § 3 of the Torture Victim Production Act of 1991, as the following:
(1) the term `torture' means any act, directed against an individual in the offenders custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and
(2) mental pain or suffering refers to prolonged mental harm caused by or resulting from —
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personalty;
(C) the threat of imminent death; or
(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality."
2. THE ROUTINE PROVISION OF FINANCIAL ASSISTANCE TO A TERRORIST GROUP IN SUPPORT OF ITS TERRORIST ACTIVITIES CONSTITUTES THE PROVISION OF MATERIAL SUPPORT OR-RESOURCES WITHIN THE MEANING OF 28 U.S.CA. § 1605(a)(7).
The state sponsored terrorism provision adopts the definition of providing material support or resources set forth in the federal criminal code. 28 U.S.C. § 1605(a)(7) incorporates 18 U.S.C. § 2339A(a) by reference, which provides that:
. . . material support or resources" means currency or other financial securities, financial services, lodging, training., safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, but does not include humanitarian assistance to persons not directly involved in such violations.
The routine provision of financial assistance to a terrorist group in support of its terrorist activities constitutes "providing material support or resources" for a terrorist act within the meaning of 28 U.S.C.A. § 1605(a)(7). Moreover, a plaintiff need not establish that the material support or resources provided by a foreign state for a terrorist act contributed directly to the act from which his claim arises in order to satisfy 28 U.S.C.A, § 1605(a)(7) statutory requirements for subject matter jurisdiction. Sponsorship of a terrorist group which causes the personal injury or death of a United States national alone is sufficient to invoke jurisdiction. Flatow v. Islamic Republic of Iran, et al., 999 F. Supp. 1 (D.D.C. 1998)
3. THE PROVISION OF MATERIAL SUPPORT AND RESOURCES TO A TERRORIST GROUP IS AN ACT WITHIN THE SCOPE OF A FOREIGN STATE'S AGENTS AND HIGH OFFICIALS' AGENCY AND OFFICES,
The law of respondeat superior demonstrates that if a foreign state's agent, official or employee provides material support and resources to a terrorist organization, such provision will be considered an act within the scope of his or her agency, office or employment See, e.g., Guzel v. State of Kuwait. 818 F. Supp. 6, 10 (D.D.C. 1993); Steen, v. Federative: Republic of Brazil 566 F. Supp. 1414, 1417 (D.D.C. 1983).
In order for an agent, official, or employee's unlawful conduct to be imputed to a government, however, the government must share a degree of responsibility for the wrongful conduct. The government must have engaged in the wrongful conduct, either deliberately or permissively, as a matter of policy or custom. See, e.g., Monell v. N.Y. Dept. of Social Services. 436 U.S. 658, 694-95 (1978) (discussing municipal liability under 42 U.S.C. § 1983). If a foreign state's heads of state routinely provide material support or resources to a terrorist group whose activities are consistent with the foreign state's customs or policies, then that agent and those officials have acted squarely within the scope of their agency and offices within the meaning of is 28 U.S.C § 1605(a)(7). Flatow v. Islamic Republic of Iran, et al., 999 F. Supp. 1 (D.D.C. 1998).
4. UNITED STATES OFFICIALS WOULD BE LIABLE FOR PROVIDING MATERIAL SUPPORT OR RESOURCES TO A TERRORIST GROUP WITHIN THE UNITED STATES.
If officials of the United States, while acting in their official capacities, provided material support and resources to a terrorist group which was responsible for hostage taking and torture within the United States, those officials would not be immune from civil suits for wrongful death and personal injury. See U.S. Const. Amend. 5; 42 U.S.C. § 1983. See also 18 U.S.C.A. §§ 1203, 3339(a) and 2340(a).
5. RECENT DEVELOPMENTS IN THE LAW WITH RESPECT TO THE APPLICABILITY OF THE FLATOW AMENDMENT AND THE AVAILABILITY OF A CLAIM FOR PUNITIVE DAMAGES AGAINST DEFENDANT MOIS
Initially, Plaintiff asserted separate claims and causes of action against Defendant MOIS, ostensibly as an entity separate and distinct from the actual government of the Islamic Republic of Iran, including, inter alia, claims for punitive damages under the Flatow Amendment to the FSIA, 28 U.S.C A § 1605 note. However, the Court notes the recent decision by the District of Columbia Circuit in the action of Roeder v. Islamic Republic of Iran. 2003 WL 21495184, 333 F.3d 228 (D.C. Cir., 2003), applying Transaero. Inc. v. La Fuerza Aera Boliviana. 30 F.3d 148 (D.C, Cir. 1994) (a nation's air force is a "foreign state or political subdivision", and is not an "agency or instrumentality" of the nation), holding that Iran's Ministry of Foreign Affairs "must be treated as the state of Iran itself rather than as its agent", because said Ministry's "core functions" are "governmental", rather than "commercial" in nature. Roeder, 333 F.3d 228 at p., sub. hn. 6 (publication page references not yet available). Applying this holding to the instant action, this Court concludes that MOIS is part and parcel of the government of the Islamic Republic of Iran, i.e., MOIS is not an agent or instrumentality of Iran, but rather, MOIS is the state of Iran itself. Accordingly, inasmuch as the FSIA bars a claim for punitive damages against Iran, Plaintiff instantly can assert no claim for punitive damages against MOIS, either.
C. PERSONAL JURISDICTION
The Foreign Sovereign Immunities Act provides that personal jurisdiction over defendants will exist where a plaintiff establishes the applicability of an exception to immunity pursuant to 28 U.S.C.A. § 1605 and service of process has been accomplished pursuant to 28 U.S.C.A. § 1608.
1. A FOREIGN STATE WHICH CAUSES THE PERSONAL INJURY OF A UNITED STATES NATIONAL THROUGH AN ACT OF STATE SPONSORED TERRORISM HAS "MINIMUM CONTACTS" WITH THE UNITED STATES SUFFICIENT TO ESTABLISH PERSONAL JURISDICTION.
The Foreign Sovereign Immunities Act provides that in personam jurisdiction over a foreign state defendant has been accommodated inherently in the statute for the acts enumerated in 18 U.S.C. § 1605(a)(7). See, H., Rep, 94-1487 at 13-14, reprinted at 1976 U.S.C.C.A.N. at 6611-12. In addition, international terrorism is subject to universal jurisdiction. Thus, personal jurisdiction over a foreign state defendant will exist where the plaintiff can establish the applicability of an exception to immunity pursuant to 28 U.S.C. § 1604, § 1605 or § 1607, and that service of process has been accomplished pursuant to 28 U.S.C.A. § 1608. Flatow v. Islamic Republic of Iran. 999 F. Supp. 1, 1998 W.L. 111500 at 15 (D.D.C. 1998). Fair play and substantial justice require that the United States Courts exercise jurisdiction over foreign state sponsors of terrorism whose sponsorship results in the death or personal injury of United States nationals.
II. CONCLUSIONS OF LAW WITH RESPECT TO LIABILITY AND DAMAGES
The 1996 amendment to the Foreign. Sovereign Immunities Act, 2S U.S.C.A. § 1605(a)(7), establishes a cause of action for personal injury proximately caused by an act-of state sponsored terrorism. Although the Foreign Sovereign Immunities Act does not define the scope of this new federal cause of action, typically a claimant in a personal injury case is permitted to recover for lost wages, loss of earning capacity, pain and suffering, medical expenses, injuries, loss of property, and other economic damages. U.S. v. Burke, 504 U.S. 229, 112 S.Ct. 1867 (1992).
Tracy is a victim of "torture" as defined in section 3 of the Torture Victims Protection Act of 1991 ( 28 U.S.C. § 1350 note), pursuant to 28 U.S.C. § 1605(a(7) and 1605(e)(1). Tracy was a victim of "hostage taking" as defined in Article 1 of the International Convention Against the Taking of Hostages, pursuant to 28 U.S.C. § 1605(a)(7) and 1605(e)(1). He has suffered "personal injury" as the result of Defendants' actions and activities as defined in 2 8 U.S.C. §§ 1605(a)(7).
A. ECONOMIC DAMAGES
As noted above, according to the evidence, including, for example, Tracy's medical records and/or the testimony of Tracy's guardian, Charles Murphy, Esquire, Tracy has been educated at the University of Pennsylvania, and served as an officer in the United States Air Force. For several years prior to, and at the time of, his abduction by Hezbollah, he worked abroad, most recently in Lebanon, as a salesman of publications. He obviously was unable to work during the entire time of his captivity. Moreover, the brutal abuse he suffered at the hands of his captors, and the physical and especially psychological sequelae thereof, has rendered him incapable of any gainful employment from the time of his release to the present time. Similarly, due to Tracy's present incapacity, which is the direct result of his captivity and brutal conditions during same, Tracy was unable to testify directly before this Court. Because Tracy worked almost exclusively outside the United States for many years prior to his abduction and captivity, there are no American records available reflecting the precise amount of his earnings during this time; however it can be presumed that he earned sufficient income to support himself, and that he would have been able to support himself had he not become incapacitated by Ms captivity. This Court takes this into account when calculating and assessing the overall measure of damages to which Tracy is entitled.
As noted above, Tracy's economic damages are calculated and/or estimated as follows;
Wage Losses; 1986 through 2000 $879,746,00 Expenses paid subsequent to release $ 32,299.92 Unpaid debts incurred subsequent to release $ 20,889.21 Co-pay for future lifetime hospitalization $ 26,100.00 TOTAL $959,035.13 The Court will, however for the sake of simplicity and ease of administration, use its discretion to round the economic figures to the nearest thousand, therefore, the total economic damages will be $959,000.00B. PAIN AND SUFFERING
The courts have firmly established that the trier of fact has broad discretion in calculating damages for pain and suffering.Leeper v. United States. 756 F.2d 300 (3d Cir. 1985). The plaintiff in this action has elicited extensive testimony with regard to the extent of pain and suffering which he was forced to endure at the hands of his captors. Plaintiff suffered severe physical and psychological injury, torture, and loss of the companionship of his family and friends. During his confinement he feared for his life every waking moment of his captivity. Precious time was stolen taken from him and can never be returned.
The Court notes that in the cases of Anderson v. Islamic Republic of Iran. 90 F. Supp.2d 107 (D.D.C. 2000), and Sutherland v. Islamic Republic of Iran. 151 F. Supp.2d 27 (D.D.C. 2001), applying, generally, the approach used by the trial court in Cicippio v. Islamic Republic of Iran. 18 F. Supp.2d 62 (D.D.C., 1998), the trial courts essentially applied a formula of calculating and assessing compensatory damages at the rate of $ 10,000 per each day of captivity. Thus, in Anderson, hostage plaintiff Terry Anderson was awarded compensatory damages of $24,540,000 for Ms 2,450 days of captivity; and in Sutherland, hostage plaintiff Thomas Sutherland was awarded compensatory damages of $23,540,000 for his 2,354 days of captivity. This Court notes that plaintiff Tracy endured 1,755 days of captivity at the hands of Hezbollah. Accordingly, this Court awards damages to Plaintiff Edward Tracy in the amount of $17,550,000, plus economic damages in the amount of $959,000.00, for a total award of $18,509,000.00.
The justification for this formula, created by the courts, was aptly described in Sutherland as follows:
Any skepticism about the adequacy of this formula must overcome the steep presumption that Congress has tacitly approved its use. In all of the above cases, the formula was developed and applied prior to October 28, 2000. On that day, Congress enacted the Victims of Trafficking and Violence Protection Act of 2000. The Act obligated the United States Treasury to pay terrorist victims-including the hostages described above-the amount awarded them at trial, or in other words, about $10,000 per day of captivity. Congress must be presumed to have aware of the damages formula, and its failure to amend it in any way amounts to a, tacit approval of the scheme. See Flood v. Kuhn, 407 U.S. 258, 283-284 (1972) (declining to overturn prior precedent where Congress "by its positive inaction" has allowed prior decisions to stand).Sutherland, 151 F. Supp.2d at 50 (Lamberth, J.).
Plaintiff has requested that the Court "direct that any amounts owed by the United States government to the Islamic Republic of Iran be frozen until the judgment in the instant action is satisfied, and direct that such frozen Iranian assets as are necessary be released to effectuate [the judgment]," Plaintiffs Proposed Findings of Fact and Conclusions of Law with Proposed Order of Judgment, filed July 30, 2003, Plaintiff has pointed to no statutory authority for the Court to order the freezing of assets of a foreign country, such a course of action would lead the Court to cross the line from deciding liability based on the rule of law to making a foreign policy pronouncement. Of course, this is contrary to the basic notion of the separation of powers in the United States.
CONCLUSION
For the foregoing reasons, the Court finds that the defendants are liable for the abduction, torture, detention, and resultant injuries inflicted on Edward Tracy. Therefore, the defendants are liable for compensatory damages in the amount of $ 18,509,000.00. An appropriate order consistent with this Opinion shall also be issued.