Cabrera v. Islamic Republic of Iran
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AUGUST CABRERA, et al., Plaintiffs, v. Civil Action No. 19-3835 (JDB) ISLAMIC REPUBLIC OF IRAN, Defendant.
MARK ZAMBON, et al., Plaintiffs, v. Civil Action No. 18-2065 (JDB) ISLAMIC REPUBLIC OF IRAN, Defendant.
MEMORANDUM OPINION
Over the past several years, this Court has awarded default judgment and damages to
hundreds of plaintiffs in these coordinated Foreign Sovereign Immunities Act (“FSIA”) lawsuits.
The lawsuits center around the atrocities that terrorist groups including al-Qaeda, the Taliban, and
the Haqqani Network (together, the “Syndicate”) committed in Afghanistan between 2006 and
2019. The Court now resolves a motion for default judgment by another 197 plaintiffs. It grants
the motion for and awards damages to those plaintiffs whose claims the Court has power to
adjudicate.1
1 All ECF numbers in this Opinion refer to the docket in Cabrera, Civ. A. No. 19-3825, unless otherwise noted.
1 Background
The factual and procedural background of this case is well documented in the Court’s prior
opinions. See, e.g., Cabrera v. Islamic Republic of Iran (“Cabrera I”), Civ. A. No. 19-3835 (JDB),
2022 WL 2817730 (D.D.C. July 19, 2022); Cabrera v. Islamic Republic of Iran (“Cabrera II”),
Civ. A. No. 19-3835 (JDB), 2023 WL 3496303 (D.D.C. May 16, 2023); Cabrera v. Islamic
Republic of Iran (“Cabrera III”), Civ. A. No. 19-3835 (JDB), 2024 WL 864092 (D.D.C. Feb. 29,
2024); Cabrera v. Islamic Republic of Iran (“Cabrera IV”), Civ. A. No. 19-3835 (JDB), 2024 WL
3225942 (D.D.C. June 28, 2024); Cabrera v. Islamic Republic of Iran (“Cabrera V”), 752 F. Supp.
3d 183 (D.D.C. 2024).
What is most relevant here is how the Court structured the litigation to accommodate the
large number of plaintiffs. In July 2022, the Court issued a memorandum opinion relating to 23
“bellwether plaintiffs” with claims arising from eleven “bellwether attacks.” Cabrera I, 2022 WL
2817730, at *1. The Court made numerous findings of fact relevant here, including which regions
of Afghanistan the Syndicate dominated during the relevant time; the tactics, techniques, and
procedures (“TTPs”) the Syndicate used; and that Iran materially supported the Syndicate. Id. at
*5–15. The Court then concluded that each bellwether plaintiff was entitled to default judgment—
i.e., that the Court had jurisdiction over each plaintiff’s claim and each plaintiff had a cause of
action under the FSIA—and awarded each plaintiff pain and suffering or solatium damages. Id.
at *33–54.
After the bellwether opinion, the Court began issuing administrative plans appointing
Special Masters to make recommendations on “all issues related to each plaintiff proving their
entitlement to compensatory damages,” including their standing, cause of action, and finding of
facts as to “the scope of [their] compensatory damages.” See, e.g., Order Adopting Admin. Plan
2 Concerning Special Masters [ECF No. 79] at 2–3; Order Appointing Tranche 2 Special Masters &
Adopting Admin. Plan Concerning Special Masters [ECF No. 278] (“Tranche 2 Special Masters
Order”) at 2–3; 28 U.S.C. § 1605A(e)(1) (empowering federal district courts to “appoint special
masters to hear damage claims brought under this section”). In September 2024, the Court
resolved the last claims of the Tranche 1 Plaintiffs. See Cabrera V, 752 F. Supp. 3d 183. That
leaves the Tranche 2 plaintiffs.
On November 1, 2024, the Tranche 2 plaintiffs filed their motion for default judgment.
Afghanistan-Based Plaintiffs’ Mot. Default J. Tranche 2 Pls. [ECF No. 288] (“Mot.”). These 197
plaintiffs fall into two categories: 55 are “damages-only” plaintiffs who are associated with a direct
victim of an attack for which the Court has already found Iran liable, and 142 are “traditional
damages-and-liability” plaintiffs associated with 58 direct victims and 57 attacks, the liability for
which this Court has not yet ruled. Id. at 3. The 197 claims were divided between five Special
Masters: Eric D. Green, Paul G. Griffin, Shelby R. Grubbs, Brad Pigott, and Stephen Allan
Saltzburg. See Tranche 2 Special Masters Order at 1. Tranche 2 plaintiffs rely on the Special
Masters’ reports and recommendations to argue each plaintiff is entitled to default judgment and
the damages award suggested by the relevant Special Master.
Upon reviewing the motion for default judgment and the attendant Special Master reports,
the Court noticed that the Special Masters had concluded that three attacks that did not result in
the immediate death of a U.S. servicemember, member of the Coalition Force, or civilian
constituted “extrajudicial killings” within the meaning of the FSIA. See 28 U.S.C. § 1605A(a)(1).
These conclusions were not obvious, so the Court ordered supplemental briefing. See Order [ECF
No. 292]. Plaintiffs provided that briefing on January 23, 2025. Pls.’ Suppl. Br. Resp. Court’s
3 Dec. 19, 2024 Order [ECF No. 294] (“Suppl. Br.”). In their view, the Special Masters’ conclusions
are correct. See generally id.
Analysis
The Court begins by determining whether it has subject matter jurisdiction over each
Tranche 2 plaintiff’s claim. It then determines whether each Tranche 2 plaintiff has a cause of
action under the FSIA. Finally, the Court awards compensatory damages.
I. Subject Matter Jurisdiction2
Under the FSIA, the default rule is that foreign nations are immune from suit in American
courts. Borochov v. Islamic Republic of Iran, 94 F.4th 1053, 1057 (D.C. Cir. 2024). One
exception to that rule is the so-called terrorism exception: American courts have jurisdiction over
claims for “money damages . . . against a foreign state for personal injury or death that was caused
by”—as relevant here—“an act of . . . extrajudicial killing . . . or the provision of material support
or resources for such an act.” 28 U.S.C. § 1605A(a)(1).3 Each liability-and-damages plaintiff
alleges she suffered “personal injury or death” that was “caused by” one of 57 terrorist attacks. So
the remaining questions are whether Iran is liable for those attacks—i.e., whether the Syndicate
committed those attacks and whether Iran provided material support for them—and whether the
attacks were “extrajudicial killing[s]” within the meaning of the FSIA.
2 If the Court has subject matter jurisdiction, it has personal jurisdiction, too. “Under the FSIA, a court has personal jurisdiction over a defendant where the court has subject matter jurisdiction and the defendant has been served.” Cabrera IV, 2024 WL 3225942, at *2 n.2. Plaintiffs successfully served Iran through diplomatic process. Id. 3 In addition to § 1605A(a)(1)’s requirements, subject matter jurisdiction requires satisfying § 1605A(a)(2)’s requirements. The Court has already found that “Iran was designated as a state sponsor of terrorism at all relevant times.” Cabrera I, 2022 WL 2817730, at *34; § 1605A(a)(2)(A)(i)(I). Plus, all the attacks at issue in this Opinion took place outside of Iran, so plaintiffs need not have “afforded [Iran] a reasonable opportunity to arbitrate the claim.” § 1605A(a)(2)(A)(iii).
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AUGUST CABRERA, et al., Plaintiffs, v. Civil Action No. 19-3835 (JDB) ISLAMIC REPUBLIC OF IRAN, Defendant.
MARK ZAMBON, et al., Plaintiffs, v. Civil Action No. 18-2065 (JDB) ISLAMIC REPUBLIC OF IRAN, Defendant.
MEMORANDUM OPINION
Over the past several years, this Court has awarded default judgment and damages to
hundreds of plaintiffs in these coordinated Foreign Sovereign Immunities Act (“FSIA”) lawsuits.
The lawsuits center around the atrocities that terrorist groups including al-Qaeda, the Taliban, and
the Haqqani Network (together, the “Syndicate”) committed in Afghanistan between 2006 and
2019. The Court now resolves a motion for default judgment by another 197 plaintiffs. It grants
the motion for and awards damages to those plaintiffs whose claims the Court has power to
adjudicate.1
1 All ECF numbers in this Opinion refer to the docket in Cabrera, Civ. A. No. 19-3825, unless otherwise noted.
1 Background
The factual and procedural background of this case is well documented in the Court’s prior
opinions. See, e.g., Cabrera v. Islamic Republic of Iran (“Cabrera I”), Civ. A. No. 19-3835 (JDB),
2022 WL 2817730 (D.D.C. July 19, 2022); Cabrera v. Islamic Republic of Iran (“Cabrera II”),
Civ. A. No. 19-3835 (JDB), 2023 WL 3496303 (D.D.C. May 16, 2023); Cabrera v. Islamic
Republic of Iran (“Cabrera III”), Civ. A. No. 19-3835 (JDB), 2024 WL 864092 (D.D.C. Feb. 29,
2024); Cabrera v. Islamic Republic of Iran (“Cabrera IV”), Civ. A. No. 19-3835 (JDB), 2024 WL
3225942 (D.D.C. June 28, 2024); Cabrera v. Islamic Republic of Iran (“Cabrera V”), 752 F. Supp.
3d 183 (D.D.C. 2024).
What is most relevant here is how the Court structured the litigation to accommodate the
large number of plaintiffs. In July 2022, the Court issued a memorandum opinion relating to 23
“bellwether plaintiffs” with claims arising from eleven “bellwether attacks.” Cabrera I, 2022 WL
2817730, at *1. The Court made numerous findings of fact relevant here, including which regions
of Afghanistan the Syndicate dominated during the relevant time; the tactics, techniques, and
procedures (“TTPs”) the Syndicate used; and that Iran materially supported the Syndicate. Id. at
*5–15. The Court then concluded that each bellwether plaintiff was entitled to default judgment—
i.e., that the Court had jurisdiction over each plaintiff’s claim and each plaintiff had a cause of
action under the FSIA—and awarded each plaintiff pain and suffering or solatium damages. Id.
at *33–54.
After the bellwether opinion, the Court began issuing administrative plans appointing
Special Masters to make recommendations on “all issues related to each plaintiff proving their
entitlement to compensatory damages,” including their standing, cause of action, and finding of
facts as to “the scope of [their] compensatory damages.” See, e.g., Order Adopting Admin. Plan
2 Concerning Special Masters [ECF No. 79] at 2–3; Order Appointing Tranche 2 Special Masters &
Adopting Admin. Plan Concerning Special Masters [ECF No. 278] (“Tranche 2 Special Masters
Order”) at 2–3; 28 U.S.C. § 1605A(e)(1) (empowering federal district courts to “appoint special
masters to hear damage claims brought under this section”). In September 2024, the Court
resolved the last claims of the Tranche 1 Plaintiffs. See Cabrera V, 752 F. Supp. 3d 183. That
leaves the Tranche 2 plaintiffs.
On November 1, 2024, the Tranche 2 plaintiffs filed their motion for default judgment.
Afghanistan-Based Plaintiffs’ Mot. Default J. Tranche 2 Pls. [ECF No. 288] (“Mot.”). These 197
plaintiffs fall into two categories: 55 are “damages-only” plaintiffs who are associated with a direct
victim of an attack for which the Court has already found Iran liable, and 142 are “traditional
damages-and-liability” plaintiffs associated with 58 direct victims and 57 attacks, the liability for
which this Court has not yet ruled. Id. at 3. The 197 claims were divided between five Special
Masters: Eric D. Green, Paul G. Griffin, Shelby R. Grubbs, Brad Pigott, and Stephen Allan
Saltzburg. See Tranche 2 Special Masters Order at 1. Tranche 2 plaintiffs rely on the Special
Masters’ reports and recommendations to argue each plaintiff is entitled to default judgment and
the damages award suggested by the relevant Special Master.
Upon reviewing the motion for default judgment and the attendant Special Master reports,
the Court noticed that the Special Masters had concluded that three attacks that did not result in
the immediate death of a U.S. servicemember, member of the Coalition Force, or civilian
constituted “extrajudicial killings” within the meaning of the FSIA. See 28 U.S.C. § 1605A(a)(1).
These conclusions were not obvious, so the Court ordered supplemental briefing. See Order [ECF
No. 292]. Plaintiffs provided that briefing on January 23, 2025. Pls.’ Suppl. Br. Resp. Court’s
3 Dec. 19, 2024 Order [ECF No. 294] (“Suppl. Br.”). In their view, the Special Masters’ conclusions
are correct. See generally id.
Analysis
The Court begins by determining whether it has subject matter jurisdiction over each
Tranche 2 plaintiff’s claim. It then determines whether each Tranche 2 plaintiff has a cause of
action under the FSIA. Finally, the Court awards compensatory damages.
I. Subject Matter Jurisdiction2
Under the FSIA, the default rule is that foreign nations are immune from suit in American
courts. Borochov v. Islamic Republic of Iran, 94 F.4th 1053, 1057 (D.C. Cir. 2024). One
exception to that rule is the so-called terrorism exception: American courts have jurisdiction over
claims for “money damages . . . against a foreign state for personal injury or death that was caused
by”—as relevant here—“an act of . . . extrajudicial killing . . . or the provision of material support
or resources for such an act.” 28 U.S.C. § 1605A(a)(1).3 Each liability-and-damages plaintiff
alleges she suffered “personal injury or death” that was “caused by” one of 57 terrorist attacks. So
the remaining questions are whether Iran is liable for those attacks—i.e., whether the Syndicate
committed those attacks and whether Iran provided material support for them—and whether the
attacks were “extrajudicial killing[s]” within the meaning of the FSIA.
2 If the Court has subject matter jurisdiction, it has personal jurisdiction, too. “Under the FSIA, a court has personal jurisdiction over a defendant where the court has subject matter jurisdiction and the defendant has been served.” Cabrera IV, 2024 WL 3225942, at *2 n.2. Plaintiffs successfully served Iran through diplomatic process. Id. 3 In addition to § 1605A(a)(1)’s requirements, subject matter jurisdiction requires satisfying § 1605A(a)(2)’s requirements. The Court has already found that “Iran was designated as a state sponsor of terrorism at all relevant times.” Cabrera I, 2022 WL 2817730, at *34; § 1605A(a)(2)(A)(i)(I). Plus, all the attacks at issue in this Opinion took place outside of Iran, so plaintiffs need not have “afforded [Iran] a reasonable opportunity to arbitrate the claim.” § 1605A(a)(2)(A)(iii). And the Court adopts the Special Masters’ findings that the relevant attack victims were United States nationals, members of the armed forces, and/or United States government employees or contractors at the time the attacks occurred. See § 1605(a)(2)(A)(ii).
4 a. Liability
The Court has already made several relevant factual findings. The Syndicate operated in
Afghanistan from 2006 to 2019 with a goal of “re-establishing the Islamic Emirate by driving the
United States and its allies out of Afghanistan through the killing and wounding of American
troops.” Cabrera III, 2024 WL 864092, at *2. Iran, in turn, “provided material support to the
Syndicate in the form of weapons, training, financial support, and safe haven.” Id. During the
relevant period, the Syndicate operated in specific regions (Southern Afghanistan, Loya Paktia,
Kabul Province, Eastern Afghanistan, North Central Afghanistan, Western Afghanistan, and
Southeastern Afghanistan) and used specific TTPs (e.g., complex attacks, improvised explosive
devices (“IEDs”), infantry-style tactics, indirect fire attacks, insider attacks, and suicide attacks).
Cabrera I, 2022 WL 2817730, at *13–17. Pursuant to those findings and consistent with the
Special Masters’ recommendations,4 the Court concludes that Iran supplied material support for
the following attacks that the Syndicate committed:
1. September 5, 2006 Complex Attack, Kandahar Province
2. August 26, 2007 Direct Fire Attack, Paktika Province
3. November 10, 2007 Complex Attack, Kapisa Province
4. January 14, 2008 Complex Attack, Kabul Province
5. June 28, 2008 IED Attack, Southeastern Afghanistan
6. July 13, 2008 Complex Attack, Helmand Province
7. July 21, 2008 Complex Attack, Helmand Province
4 To support their liability recommendations, the Special Masters relied on expert reports by Dr. Daveed Gartenstein-Ross, see Expert Witness Report, Dr. Daveed Gartenstein-Ross [ECF No. 289-6], and Lt. Col. Steven A. Wood, see Expert Report of Steven A. Wood, LTC, USA (Ret.) [ECF No. 289-7]. The Court credits those experts’ reports as it has done previously. See Cabrera III, 2024 WL 864092, at *3 (crediting report of Dr. Gartenstein-Ross); Cabrera I, 2022 WL 2817730, at *5 (crediting report of Lt. Col. Wood).
5 8. August 1, 2008 IED Attack, Khost Province
9. October 22, 2008 IED Attack, Farah Province
10. January 17, 2009 Suicide Attack, Kabul Province
11. February 20, 2009 Complex Attack, Uruzgan Province
12. May 26, 2009 Suicide Attack, Parwan Province
13. August 20, 2009 IED Attack, Wardak Province
14. August 21, 2009 Complex Attack, Kunar Province
15. August 31, 2009 IED Attack, Kandahar Province
16. September 12, 2009 Complex Attack, Kunar Province
17. October 23, 2009 IED Attack, Kandahar Province
18. October 27, 2009 IED Attack, Kandahar Province
19. November 19, 2009 Suicide Attack, Zabul Province
20. November 22, 2009 IED Attack, Kandahar Province
21. November 23, 2009 Indirect Fire Attack, Kandahar Province
22. December 30, 2009 Insider Attack, Khost Province
23. January 9, 2010 IED Attack, Helmand Province
24. March 16, 2010 Suicide Attack, Kandahar Province
25. May 7, 2010 IED Attack, Helmand Province
26. May 11, 2010 Complex Attack, Logar Province
27. June 21, 2010 Suicide Attack, Kunar Province
28. June 26, 2010 IED Attack, Wardak Province
29. July 24, 2010 IED Attack, Zabul Province
30. August 4, 2010 IED Attack, Helmand Province
6 31. August 24, 2010 IED Attack, Uruzgan Province
32. August 27, 2010 IED Attack, Paktia Province
33. October 11, 2010 IED Attack, Helmand Province
34. January 20, 2011 Rocket-Propelled Grenade (“RPG”) Attack, Baghlan Province
35. January 31, 2011 IED Attack, Wardak Province
36. February 7, 2011 IED Attack, Kandahar Province
37. March 22, 2011 Complex Attack, Logar Province
38. April 13, 2011 IED Attack, Laghman Province
39. April 16, 2011 Insider Attack, Laghman Province
40. May 10, 2011 IED Attack, Khost Province
41. May 29, 2011 Complex Attack, Wardak Province
42. July 31, 2011 IED Attack, Kunar Province
43. September 25, 2011 Insider Attack, Kabul Province
44. January 2, 2012 IED Attack, Helmand Province
45. January 6, 2012 IED Attack, Kandahar Province
46. April 25, 2012 IED Attack, Kandahar Province
47. May 7, 2012 IED Attack, Ghazni Province
48. May 13, 2012 IED Attack, Khost Province
49. July 22, 2012 Insider Attack, Herat Province
50. August 8, 2012 Suicide Attack, Kunar Province
51. September 16, 2012, Insider Attack, Zabul Province
52. May 16, 2013 Suicide Attack, Kabul Province
53. January 17, 2014 Complex Attack, Kabul Province
7 54. August 24, 2014 Complex Attack, Nangarhar Province
55. August 26, 2015 Insider Attack, Helmand Province
56. December 21, 2015 Suicide Attack, Parwan Province
57. January 14, 2019 Suicide Attack, Kabul Province
b. Extrajudicial Killings
Even if Iran provided material support for an attack, the Court only has subject matter
jurisdiction if that attack constituted “an act of . . . extrajudicial killing.” § 1605A(a)(1). The
Special Masters concluded that each attack did. While the Court adopts the recommendations as
to 54 of the attacks, it concludes that three were not extrajudicial killings within the meaning of
the FSIA.
i. Section 1605A(a)(1) and Borochov
The Court begins by explaining what tees up these extrajudicial-killing questions. In full,
the terrorism exception reads:
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter 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 or resources 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.
§ 1605A(a)(1). “Extrajudicial killing” is defined to mean what it does in the Torture Victim
Protection Act of 1991 (“TVPA”): “a deliberated killing not authorized by a previous judgment
pronounced by a regularly constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.” § 1350 note; § 1605A(h)(7). This breaks down
into three elements: “(1) a killing; (2) that is deliberated; and (3) is not authorized by a previous
judgment pronounced by a regularly constituted court.” Owens v. Republic of Sudan, 864 F.3d
8 751, 770 (D.C. Cir. 2017), vacated & remanded on other grounds sub nom. Opati v. Republic of
Sudan, 590 U.S. 418 (2020).
But what if the terrorist attack for which a foreign state provided material support was
intended to kill its victims, but succeeded only in injuring them? For some time, this Court and
other judges in this District held that the terrorism exception reached a nation that provided
material support for such “deliberated attempts to kill.” Cabrera I, 2022 WL 2817730, at *37
(cleaned up); see also, e.g., Gill v. Islamic Republic of Iran, 249 F. Supp. 3d 88, 99 (D.D.C. 2017);
Karcher v. Islamic Republic of Iran, 396 F. Supp. 3d 12, 58 (D.D.C. 2019). Regardless of the
outcome of the attack, the reasoning went, the foreign state gave its money, training, weapons, etc.
with the intention of supporting an attack that would cause death. See Karcher, 386 F. Supp. at
57–58. So the nation still provided “material support” for “an act of . . . extrajudicial killing.”
§ 1605A(a)(1).
Last year, however, the D.C. Circuit rejected that reasoning. In Borochov v. Islamic
Republic of Iran,5 the Circuit held that an injury or death is only “caused by an act
of . . . extrajudicial killing” if “the perpetrator . . . kill[ed] [some]one in the attack” in question. 94
F.4th at 1060–61. To start, the Circuit looked to the ordinary meaning of the word “killing” and
concluded that “the word . . . refers to an action resulting in the death of another.” Id. at 1061. So
terrorists only commit an act of extrajudicial killing if they actually kill someone, not if they merely
attempt to do so. See id. at 1061–62. Then, the Circuit applied common law aiding-and-abetting
principles to conclude that a foreign state can only provide material support for an act of
extrajudicial killing if the extrajudicial killing was completed. See id. at 1063–64 (“The
5 The plaintiffs in Borochov have petitioned the Supreme Court for certiorari. See Borochov v. Islamic Republic of Iran, Case No. 22-7058. As of the date of this Opinion, the Supreme Court has requested the views of the Solicitor General.
9 requirement of a completed crime dates back centuries to the common law, which provided that
‘an accessory could not be convicted without the prior conviction of the principal offender.’”
(quoting Standefer v. United States, 447 U.S. 10, 15 (1980)); id. at 1064 (“Civil aiding-and-
abetting liability follows the same rule: an accomplice is liable only if the principal actually
completes the tort.”). This narrow reading of the terrorism exception, the Circuit concluded, is
also consistent with the principle that courts must read “[e]xplicit waivers of sovereign immunity
. . . narrowly.” Id. at 1062 (internal quotation marks omitted); see also id. at 1067. As a result, it
is not sufficient that the foreign state provided material support for a terrorist intending for that
terrorist to commit a killing. Nor is it sufficient that the terrorist intended to commit a killing. The
terrorist must succeed: only victims of deadly attacks can sue a foreign state for supporting an
extrajudicial killing. See id.
Since Borochov, this Court and other judges in this District have been working to determine
what is and is not an extrajudicial killing. See, e.g., Cabrera IV, 2024 WL 3225942, at *7; Pautsch
v. Islamic Republic of Iran, Civ. A. No. 20-3859 (JEB), 2024 WL 3566132, at *3–4 (D.D.C. July
29, 2024); Hansen v. Islamic Republic of Iran, Civ. A. No. 22-477 (DLF), 2024 WL 3026517, at
*4–6 (D.D.C. June 17, 2024). For example, this Court determined earlier in this case that an attack
which kills Afghan soldiers—i.e., non-U.S. members of the Coalition Forces—is an extrajudicial
killing, Cabrera IV, 2024 WL 3225942, at *7, and another judge determined the same is true of an
attack which kills civilians, see Strauss v. Islamic Republic of Iran, Civ. A. No. 22-52 (RCL), 2025
WL 740456, at *8 (D.D.C. Mar. 7, 2025); see also Cabrera V, 752 F. Supp. 3d at 189.
Three attacks at issue here present situations the Court has yet to face. Those three attacks
are the August 24, 2014 Complex Attack in Nangarhar Province, the March 16, 2010 Suicide
Attack in Kandahar Province, and the May 7, 2010 IED Attack in Helmand Province. During
10 those attacks and immediately afterwards, no member of the Coalition Forces, civilian, or U.S.
citizen died. But Special Masters Saltzburg and Green concluded—and plaintiffs now argue—
that the attacks still constituted extrajudicial killings for two reasons. See Suppl. Br. at 1–2. First,
two of the attacks were suicide bombings in which the bomber died. Id. at 10–12. Second, U.S.
servicemembers injured in two of the attacks took their own lives years later due at least in part to
the injuries they had sustained in the attack.6 Id. at 3–10.
i. Death of Suicide Bomber
While serving in Afghanistan, U.S. Army Captain Carey DuVal and U.S. Army Staff
Sergeant Allen R. Thomas were both injured in separate suicide bombings. See Expert Report of
Steven A. Wood, LTC, USA (Ret.) [ECF 289-7] (“Wood Rep.”) at 65–68 (describing the August
24, 2014 Complex Attack in Nangarhar Province that injured CPT DuVal); Expert Witness Report,
Dr. Daveed Gartenstein-Ross [ECF No. 289-6] (“Gartenstein-Ross Rep.”) at 52–54 (describing
the March 16, 2010 Suicide Attack in Kandahar Province that injured SSG Thomas). CPT DuVal
now sues to recover for his injuries, and Danica Thomas and L.T., SSG Thomas’s family members,
sue to recover for their injuries caused by the attack SSG Thomas suffered.7 Neither attack,
however, immediately killed a member of the Coalition Force, a civilian, or a U.S. citizen—only
the suicide bomber died.
According to plaintiffs, the Court has jurisdiction over these three claims because the
suicide bomber’s death made the attack an extrajudicial killing. Indeed, plaintiffs advocate for a
“bright-line rule”: “[w]hen a foreign state provides material support for a terrorist-group’s suicide
6 The Court uses the phrases “took his own life” and “self-inflicted death” to refer to both intentional and accidental death at one’s own hand. 7 As the Court will detail later, SSG Thomas tragically took his own life years after he was injured in Afghanistan.
11 bombing, and that bombing kills the bomber, the attack is an act of extrajudicial killing.” Suppl.
Br. at 10. Such a rule is supported by Borochov, say plaintiffs, because suicide bombings
deliberately cause the death of the suicide bomber, and that same action causes the injuries of any
victims caught in the bomb’s blast. See id. at 11–12.
The Court disagrees. Borochov explicitly defined extrajudicial killing to cover only “act[s]
[that] result[] in the death of another.”8 94 F.4th at 1061 (emphasis added); Mamani v. Sánchez
Bustamante, 968 F.3d 1216, 1233 (11th Cir. 2020) (an extrajudicial killing “requires, at a
minimum, that there be a considered, purposeful act that takes another’s life”). So, to be a killing,
the act in question—here, the detonation of the bomb—must result in the death of someone other
than the person who commits that act. Here, that means that it must kill someone other than the
suicide bomber.
Plaintiffs dispute that Borochov requires as much. See Suppl. Br. at 10–11. They point
out that the plaintiffs in Borochov argued that the attack in question was an extrajudicial killing
because the attacker was killed by an onlooker in self-defense. See Borochov, 94 F.4th at 1062.
It was in that context that the D.C. Circuit said that an attacker’s death “does not suffice,” and that
was because neither the terrorists nor their supporters “undert[ook], much less ‘deliberated’” the
self-defense shooting, “[n]or did the shooting cause” the plaintiffs’ injuries. Id. (citations omitted).
Thus, in plaintiffs’ view, Borochov did not hold that an extrajudicial killing requires someone
other than the actor to die. See Suppl. Br. at 10–11. The statement that a killing requires “the
death of another” was simply dictum. See id.
Fair enough. But that dictum is persuasive, especially because it is consistent with the
plain text of the definition of extrajudicial killing. Moving beyond the dictionaries Borochov cites,
8 The Court takes for granted that terrorist suicide bombings, including the two at issue here, are not “authorized by a previous judgment pronounced by a regularly constituted court.”
12 its statement that a killing must result in the death of another comports with how the noun killing
is used in everyday speech. See Mohamad v. Palestinian Auth., 566 U.S. 449, 454 (2012) (ordinary
usage informs statutory meaning). If the morning news broadcast pronounces that “there was a
killing last night,” a listener understands that a homicide occurred, not a suicide. Cf., e.g., United
States v. McGill, 815 F.3d 846, 891 (D.C. Cir. 2016) (“[T]hese were not cases . . . where outsiders
are unsure whether there was a killing at all. The question was who did the killing.”); Patterson v.
New York, 432 U.S. 197, 215 (1977) (“[A] killing became murder in Maine when it resulted from
a deliberate, cruel act committed by one person against another.”); Homer, The Odyssey 411
(Robert Fitzgerald trans., Farrar, Straus and Giroux 1998) (“There will be killing till the score is
paid.”). It is only when killing is used as a verb with a reflexive pronoun that a listener understands
a speaker to refer to the taking of one’s own life. Cf., e.g., Taylor v. Barkes, 575 U.S. 822, 823
(2015) (per curiam) (“And he indicated that he was not currently thinking about killing himself.”);
William Shakespeare, Othello act 5, sc. 2 (“[N]o way but this, Killing myself, to die upon a kiss.”).
This ordinary meaning of killing is consistent with the rest of the definition of extrajudicial
killing—that the killing is “not authorized by a previous judgment pronounced by a regularly
constituted court affording all the judicial guarantees which are recognized as indispensable by
civilized peoples.” § 1350 note. That a killing occurred without judicial process implies that the
killing is one for which civilized nations would require judicial process before permitting its
commission. Voluntary suicide bombings would not so require; indeed, that individual’s suicide
would not ordinarily be framed as a human-rights violation. See Jesner v. Arab Bank, PLC, 584
U.S. 241, 266 (2018) (explaining that an “extrajudicial killing” is a “human-rights violation[]”
under international law). What is a human-rights violation, though, is a state-backed group’s
taking of another’s life without judicial process.
13 Zooming out, the rest of § 1605A(a)(1) confirms that a killing is an act by one person done
to another. The same is true for the other acts that support the terrorist exception: torture, aircraft
sabotage, and hostage taking all require a perpetrator that is separate from the victim. See
§ 1605A(a)(1). Take the definition of hostage taking, which in relevant part states “[a]ny person
who seizes or detains and threatens to kill, to injure or to continue to detain another
person . . . commits the offence of taking of hostages.” International Convention Against the
Taking of Hostages art. 1, ¶ 1, Dec. 17, 1979, 1316 U.N.T.S. 205 (emphasis added); § 1605A(h)(2)
(incorporating that definition into the FSIA); see also § 1350 note (defining “torture” as “any act,
directed against an individual in the offender’s custody . . . . ” (emphasis added)). In short, the
acts listed in § 1605A(a)(1)—including extrajudicial killing—are not reflexive. They require a
perpetrator who acts upon a distinct victim, not upon him or herself.
Further, the statutory source of the definition of extrajudicial killing, the TVPA, provides
fodder to the conclusion that the term requires an act done by one onto another. See Borochov, 94
F.4th at 1061. The TVPA imposes liability on any “individual who, under actual or apparent
authority, or color of law, of any foreign nation . . . subjects an individual to extrajudicial killing.”
TVPA § 2(a)(2); see also Mohamad, 566 U.S. at 453. No liability attaches, then, without one
individual who acts upon another individual.
Common law and the greater U.S. Code also provide support for this conclusion. While
suicide was a crime at common law in England, it had ceased to be one in the United States long
before Congress passed the terrorism exception in 1996. See 2 Wharton’s Criminal Law § 22:22
(16th ed. 2024). Now, “absent a statute providing otherwise, suicide and attempted suicide are no
longer punishable offenses.” Id. That means that a general murder law—take, for example, the
federal murder statute, 18 U.S.C. § 1111(a)—does not reach one who voluntarily takes her own
14 life. Yet its language does not explicitly say that; rather, it simply defines murder as “the unlawful
killing of a human being with malice aforethought.” § 1111(a). The takeaway is that Congress
uses “killing” to mean the act of one that ends the life of another, not an act by one that ends his
own life.
So an extrajudicial killing indeed requires that the act in question “result[] in the death of
another.” Borochov, 94 F.4th at 1061. No matter, say plaintiffs, because a suicide bombing does
result in the death of another: “[A] successful suicide attack” by a terrorist organization, plaintiffs
say, “always results in the death of ‘another’”—an individual terrorist. Suppl. Br. at 11. While
clever, this reorientation of the question does not work. When analyzing a terrorist attack under
the FSIA, a court views the member of the terrorist organization who carried out the attack as
acting on behalf of the organization, not as an actor independent of it. Never has this Court, or
any other court, viewed the terrorist who pulled the trigger as distinct from the greater organization
to which the foreign state in question provided material support. In other words, the individual
terrorist is not separate from the terrorist organization itself. He is not “another,” and thus his
death cannot amount to an extrajudicial killing. See Borochov, 94 F.4th at 1061.
Here, the Syndicate surely intended its suicide bombs to kill CPT Duval, SSG Thomas, and
their compatriots. And Iran undoubtably deliberately supported the Syndicate for the purpose of
killing Americans and other members of the Coalition Forces. See Cabrera III, 2024 WL 864092,
at *2. But under Borochov’s reading of the terrorism exception, that is not enough. The attack
must result in the death of another. Borochov, 94 F.4th at 1061–64. The text of the terrorism
exception is best read to exclude an attack that results in the death only of a suicide bomber.9 As
9 At least a voluntary suicide bomber. One could imagine, for example, a scenario in which terrorists force a person to wear and detonate a bomb against his will. That is not the situation presented to this Court, and this Opinion’s reasoning should not be read to exclude that scenario from the definition of extrajudicial killing.
15 a result, the attack that injured CPT Duval was not an extrajudicial killing and the Court lacks
subject matter jurisdiction over his claim.
Plaintiffs then make an alternative argument as to why the attack that injured SSG Thomas
was an extrajudicial killing. The Court turns to that argument now.
ii. Self-Inflicted Death Years After Attack
Plaintiffs argue that the Court has jurisdiction over six plaintiffs’ claims—including those
of Danica Thomas and L.T.—because an injured servicemember took his own life years after the
attack that injured him. The other four plaintiffs, F.S., Dawn Marie Pattee, Kristen Colleen
Luncers, and Jalisa Marie Stark, are family members of U.S. Marine Corps Lance Corporal Randal
Paul Wright. Because the details of their injuries and premature deaths are essential to resolving
the question presented, the Court begins by briefly recounting the tragic stories of SSG Thomas
and LCpl Wright. The Court then moves to the extrajudicial-killing analysis.
1. SSG Thomas and LCpl Wright
In 2010, SSG Thomas was serving in Arghandab District, Kandahar Province. Gartenstein-
Ross Rep. at 52. On March 16, his “platoon was tasked with a 24-hour patrol of the area and
conducting traffic-control points throughout.” Id. (internal quotation omitted). The platoon had
set up a traffic-control checkpoint when an unidentified male started approaching it. Id. The man
did not heed SSG Thomas’s signals to stop; instead, he detonated his suicide vest. Id.
Only the bomber was killed. Id. But SSG Thomas and one other Marine were wounded.
Id. SSG Thomas “was hit with ball bearings that ripped clear through the left side of his chest and
out the other side, taking out his left lung, collapsing his right lung, and leaving searing burns.”
Decl. of Danica Thomas [ECF 289-5 at 425] ¶ 11. He was in a coma in Germany before returning
to the United States. Id. ¶¶ 11–12. Apart from having to recover from his more apparent physical
16 injuries, SSG Thomas also suffered traumatic brain injury (“TBI”), “night terrors[,] and PTSD as
a result of the attack.” Id. ¶¶ 14, 16. The PTSD presented as “extreme paranoia and periods where
he appeared to mentally check-out or depart from the present situation.” Id. ¶ 18.
Just over three years after the attack in Afghanistan, SSG Thomas’s suffering manifested
in an utterly devasting event. On September 28, 2013, SSG Thomas left his house, and his wife
heard him cock his gun. Id. ¶ 20. He proceeded to shoot out her tires and run down the street,
where he shot and killed a dog outside a home, then entered the home and shot and killed the dog’s
two owners. Id. ¶ 22. SSG Thomas later shot and killed himself. Id. ¶ 20. In his wife’s view,
SSG Thomas was likely startled by the dog, “which, in his extreme state of paranoia compelled
him to shoot it. He then moved forward to enter the owner’s house to clear it, thinking he was in
combat.” Id. ¶ 22. She believes that when SSG Thomas “popped back into the present
reality . . . [he] realized the horror of what he did” and, “not able to live with himself, he ended his
own life.” Id.
LCpl Wright also served in Afghanistan in 2010. Gartenstein-Ross Rep. at 89. On May 7,
LCpl Wright was conducting a dismounted patrol near Salaam Bazaar, Now Zad District when he
struck an IED. Id. His injuries were immense: he lost both legs and the fingers on his left hand
and suffered from a TBI, severe PTSD, and mental anguish. Decl. of Dawn Marie Pattee [ECF
No. 289-5 at 453] ¶¶ 7–9. Luckily, despite causing these grave injuries, the attack did not
immediately kill anyone.
Once LCpl Wright arrived home, Department of Veterans Affairs (“VA”) doctors
prescribed multiple opioid pain medications for his severe injuries. Id. ¶ 10. But the doctors
refused to prescribe him more when he asked, so he began supplementing the prescribed opioids
with unprescribed opioids. Id. ¶ 11. Eventually, the VA discovered LCpl Wright’s self-help and
17 cut off his prescriptions—apparently without providing him with any support for overcoming his
addiction. Id. ¶ 12. On March 9, 2017, LCpl Wright had been clean for four to six months when
he turned back to opioids and took the amount he had previously been prescribed. Id. ¶¶ 10, 13.
Tragically, he overdosed and died. Id. ¶ 13. It is his mother’s “strong conviction that the [IED]
attack directly led to his death” because it led to his opioid use. Id. ¶ 10.
2. Analysis
Plaintiffs submit that due to SSG Thomas and LCpl Wright’s eventual deaths at their own
hands, the attacks the two endured in Afghanistan were extrajudicial killings. The thrust of
plaintiffs’ arguments is this: a killing is an act that results in the death of another; “the D.C. Circuit
has adopted a ‘proximate causation’ standard for determining whether an act results in death”; that
proximate causation standard requires only that there be “‘some reasonable connection between
the act or omission of the defendant and the damage which the plaintiff has suffered,’” or in other
words, that the death be reasonably foreseeable; and it is foreseeable that a victim of a terrorist
attack may later take his own life. Suppl. Br. at 4–5 (quoting Owens, 864 F.3d at 794). Since the
Syndicate and their Iranian supporters intended the attacks in question to be lethal, plaintiffs
conclude that the attacks amount to “deliberated killings not authorized by a previous judgment
pronounced by a regularly constituted court.” See id. at 4–6.
The problem with this argument is that plaintiffs once again fail to properly orient the
question. Recall the text of 28 U.S.C. § 1605A(a)(1):
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter 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 or resources 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.
18 (emphases added).
The proximate cause standard adopted in Owens is used to determine whether the “personal
injury or death” a plaintiff asserts “was caused by” a terrorist’s act or the material support for it.
See 864 F.3d at 793–99. But the question here is not whether SSG Thomas’s and LCpl Wright’s
deaths were “caused by” the attacks they endured. The question is whether those attacks amount
to “act[s] of . . . extrajudicial killing.” § 1605A(a)(1). Only if the attacks were killings may the
Court turn to the question of whether those acts caused SSG Thomas’s and LCpl Wright’s injuries
and/or deaths.
Plaintiffs in effect argue that the extrajudicial-killing analysis is identical to the causation
analysis. That cannot be the case. It is a “cardinal principle of statutory construction that [courts]
must give effect, if possible, to every clause and word of a statute.” Owens, 864 F.3d at 773
(quoting Williams v. Taylor, 529 U.S. 362, 404 (2000)). The Court would violate that cardinal
principle if it were to engraft on the term extrajudicial killing the same proximate cause analysis
that is used to determine whether an injury is caused by one of the terrorism exception’s
enumerated acts. Any terrorist “act” that “caused” a person’s “death” would be “an act of
. . . extrajudicial killing”—whether that act was torture, aircraft sabotage, hostage taking, or
anything else.10 Put simply, the enumerated acts would be superfluous whenever a death results.
The statute could simply say United States courts have jurisdiction over any claim “in which
money damages are sought against a foreign state for death that was caused by an act or the
provision of material support or resources for such act.” The Court will not read out of the statute
10 Cf., e.g., Estate of Fakhoury v. Islamic Republic of Iran, Civ. A. No. 21-1218 (JDB), 2024 WL 4771467, at *10–11 (D.D.C. Nov. 13, 2024) (determining that Iranian-supported terrorists committed an act of hostage taking then proceeding to analyze whether that hostage taking caused the hostage’s eventual death); Kar v. Islamic Republic of Iran, Civ. A. No. 19-2070 (JDB), 2022 WL 4598671, at *19 (D.D.C. Sept. 30, 2022) (determining that hostage- taking victim who “died in Iran’s custody” “was not a victim of an extrajudicial killing”).
19 words duly enacted by Congress and the President. The enumerated acts—including extrajudicial
killing—must do their own work.11
So an extrajudicial killing cannot be any act that proximately causes a person’s death under
the test put forward in Owens—it must apply only to a narrower set of “action[s] resulting in the
death of another.” Borochov, 94 F.3d at 1061. The text and context of the terrorism exception
and its definition of extrajudicial killing confirm as much. They reveal that an extrajudicial killing
is an act undertaken with the purpose of killing another and that actually results in death in the
manner or a manner similar to that which was intended.12
Begin with the definition of extrajudicial killing. As mentioned earlier, it is not simply an
act that results in the death of another (i.e., a killing). It is a “deliberated killing.” § 1350 note
(emphasis added); § 1605A(h)(7). A killing is deliberated if it is “undertaken with studied
consideration and purpose,” Owens, 864 F.3d at 770 (quoting Mamani v. Berzain, 654 F.3d 1148,
1155 (11th Cir. 2011)), and “not on a sudden impulse,” Owens v. Republic of Sudan, 174 F. Supp.
3d 242, 263 (D.D.C. 2016), aff’d, 864 F.3d 751 (D.C. Cir. 2017) (citing Webster’s Third New
International Dictionary 596 (1993), 4 The Oxford English Dictionary 414 (2d ed. 1989), and
Black’s Law Dictionary 492 (9th ed. 2009)).
The concept of a deliberated killing has common law roots. See Neder v. United States,
527 U.S. 1, 23 (1999) (common law terms in statutes are read to bear their common law meaning
unless indicated otherwise). In criminal law, a killing “ordinarily constitutes murder in the first
degree only if the intent to kill is accompanied by premeditation and deliberation.” 2 Wharton’s
11 That said, the Court is skeptical that plaintiffs would even succeed on their own standard. See Hansen, 2024 WL 3026517, at *4–6 (explaining that, under common law tort and criminal law principles, self-inflicted death generally breaks the chain of causation). 12 Once again, the Court presumes a lack of “authoriz[ation] by a previous judgment pronounced by a regularly constituted court.” See § 1350 note; § 1605A(h)(7).
20 Criminal Law § 21:4. While premeditation is “simply . . . thinking about a proposed killing before
engaging in the homicidal conduct,” “‘deliberation’ is the process of carefully weighing such
matters as the wisdom of going ahead with the proposed killing, the manner in which the killing
will be accomplished, and the consequences” of carrying out the killing. Id. So, to be a deliberated
killing, a perpetrator must act “with studied consideration and purpose,” Owens, 864 F.3d at 770,
“to achieve” the contemplated death of another, “as opposed to merely being aware that his or her
actions would bring about that result or that there was a risk that the result might be brought about
from his or her action,” 2 Wharton’s Criminal Law § 5:3.
Common law principles do not stop at dictating the mens rea required to make an act that
leads to another’s death a deliberated killing. They also require a tight line between the
perpetrator’s purpose and the actual result of his act. The result must be “within the purpose or
. . . contemplation of the” perpetrator—e.g., the act must result in a death in the manner the
perpetrator deliberated—or the result must “involve[] the same kind of injury or harm as” was
planned and “not [be] too remote or accidental in its occurrence.” Model Penal Code § 2:03
(explaining causation requirements for crimes requiring purpose or knowledge). In other words,
to be a deliberated killing, it is not enough that the perpetrator’s action was a but-for cause of his
intended victim’s eventual death. If the death occurs “in a manner very different from that
contemplated or from that which might have been expected,” the perpetrator does not commit a
deliberated killing, but rather an attempted killing or a homicide offense that requires a lesser mens
rea. See H. Hart & A. Honoré, Causation in the Law 353–54 (1959)13; 1 Subst. Crim. L. § 6.4(f)
(3d ed. 2024).
13 Hart and Honoré provide a useful example of this principle. If “a man intend[ing] to kill his wife shoots at her, but misses or only slightly wounds her,” and she then escapes him by getting on a train only to be “killed in a railway accident in th[at] train,” “most people would not only refuse to say that the man had caused his wife’s death but would recoil at the prospect of punishing him with the same severity as that reserved for” intentional murder. H.
21 The conclusion that a deliberated killing only occurs when the perpetrator achieves his aim
in (or similar to) the way that he contemplated is further evinced by the other enumerated acts in
§ 1605A. See Fischer v. United States, 603 U.S. 480, 487 (2024) (“[A] word is given more precise
content by the neighboring words with which it is associated.” (internal quotations omitted)); cf.
Hansen, 2024 WL 3026517, at *4. Each other act—torture, aircraft sabotage, and hostage taking—
requires the perpetrator to commit an act that immediately results in the intended harm. Consider
torture. Like it does for extrajudicial killing, the FSIA borrows the definition of torture from the
TVPA: in relevant part, torture is “any act, directed against an individual in the offender’s custody
or physical control, by which severe pain or suffering . . . is intentionally inflicted on that
individual.” § 1350 note (emphasis added). A fit between the terrorist’s intention and the result
is thus required: the perpetrator must intend to cause the victim severe pain or suffering, and his
action must inflict that severe pain or suffering as intended.14 That a terrorist’s actions may lead
to the victim enduring severe pain or suffering years later in a manner that was not contemplated
is not enough.
This textual analysis is also consistent with the source of the definition of extrajudicial
killing. Congress derived the TVPA’s definition of extrajudicial killing from article 3 common to
the four Geneva Conventions of 1949, Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995), which
spoke to “executions” without judicial process, see Geneva Convention for the Amelioration of
Hart & A. Honoré, supra, at 354. Contrast that to a man who shoots at his wife to kill her but instead gravely wounds her, and she dies from her wound after a month in the hospital. In that case, the wife’s death occurs in the manner the man intended—or at least in a manner very similar to it—and thus the man would be liable for intentional murder. 14 See also International Convention Against the Taking of Hostages art. 1, § 1, Dec. 17, 1979, 1316 U.N.T.S. 205, 207 (stating that “[a]ny person who seizes or detains and threatens to kill, to injure or to continue to detain another person . . . commits the offence of taking of hostages” (emphasis added)); Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation art. 1, § 1, Sept. 23, 1971, 974 U.N.T.S. 177, 178 (defining aircraft sabotage as “an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft” or destruction of “an aircraft in service” (emphases added)); § 1605A(h)(1), (2) (incorporating those definitions into the FSIA)
22 the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3(1)(d), Aug. 12, 1949,
6 U.S.T. 3114, 75 U.S.T.S. 85. Congress then transposed an edited version of the Convention’s
definition into the TVPA by substituting “deliberated killing” for “executions,” but simultaneously
equated the term extrajudicial killing in the TVPA to “summary execution[s],” which “violate
standards accepted by virtually every nation.” H.R. Rep. 102-367, 2–3, 1992 U.S.C.C.A.N. 84,
85–87.
The takeaway is that an extrajudicial killing is in the same genre as a summary execution,
and the two are often conflated. See, e.g., Kadic, 70 F.3d at 243 (“[T]he Torture Victim
[Protection] Act . . . cover[s] summary executions.”).15 Summary execution both commonly and
in practice connotes that the perpetrator intended to kill the victim and did kill him in the manner
contemplated. Most simply, one would not say a death sentence was successfully carried out if
the executor only managed to wound the victim and the victim later died in a manner wholly apart
from the noose, bullet, or injection. Cf. Execution, Black’s Law Dictionary (12th ed. 2024). And
technically, the term summary execution (and extrajudicial killing) has its roots in international
legal efforts to combat killings where a perpetrator summarily killed individuals in the manner
clearly intended. See Altson et al., Altson and Heyns on Unlawful Killings 4 (2020) (explaining
that one event that led to international action to combat unlawful killings was when a Liberian
junta “lined up 13 senior officials . . . and shot them dead”).
Additionally, the cases that inspired the TVPA—in which plaintiffs asked courts to infer
from the Alien Tort Statute a cause of action for summary execution—dealt with terrorist attacks
in which the terrorists succeeded in killing their victims in the manner intended. Take, for
15 To be sure, the definition of extrajudicial killing is “broader” than the definition of “summary execution” in that it does not require the killer to be a state actor. Owens, 864 F.3d at 771–72. But that does not undermine the fact that the term was intended to cover similar acts that cause death.
23 example, Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), one of the cases that
prompted Congress to enact the TVPA. See Ali Shafi v. Palestinian Auth., 686 F. Supp. 2d 23, 26
(D.D.C. 2010). There, plaintiffs were survivors and representatives of those killed in a terrorist
hijacking of a civilian bus in Israel in which the attackers proceeded to torture, shoot, and otherwise
murder many of its occupants before the massacre was halted. See Tel-Oren, 726 F.2d at 776
(Edwards, J. concurring). The 34 decedents undoubtably were killed in the manner the terrorists
intended. See id. Upon the D.C. Circuit holding that federal courts lacked subject matter
jurisdiction over plaintiffs’ claim and Judge Bork airing his skepticism that a cause of action would
exist for the plaintiffs regardless, Congress stepped in to enact the TVPA. Though the Court cannot
step into the minds of the congressmembers who passed the TVPA, the act’s historical basis
indicates that it was this type of purposeful and successful killing for which they aimed to provide
a remedy.
In addition to the text and context, there are two other reasons why an extrajudicial killing
is an act designed to kill and that does kill in the manner or manner similar to that contemplated.
First, it works no sea change from how this Court and others have analyzed whether an
extrajudicial killing occurred. For example, in Kar v. Islamic Republic of Iran, this Court was
presented with a similar question: whether a hostage’s suicide while in Iranian custody amounted
to an extrajudicial killing. See Civ. A. No. 19-2070 (JDB), 2022 WL 4598671, at *13–14 (D.D.C.
Sept. 30, 2022). The Court found it did not because plaintiffs failed to put forward “admissible
evidence demonstrating that Iran acted with the intent to kill” him in that manner. Id. at *14.
Although the evidence indicated that Iran told the hostage he would die while in custody, there
was insufficient evidence that Iran intended him to commit suicide while in custody. See id.
(explaining that the hostage’s treatment showed Iran “intended to detain him and punish him” like
24 any other prisoner, “and it cannot be the case that an extrajudicial killing exists whenever an
individual dies while under the control of a state sponsor of terrorism”). Simultaneously, the Court
made clear that the hostage’s suicide was not alone dispositive; instead, it was the lack of evidence
that “Iran imposed conditions of confinement on [him] with the intention of forcing him to commit
suicide.” Id. at *15 (emphasis added). And Kar is not the only case to insist that the terrorist’s
intent and the victim’s manner of death must match. See, e.g., Kilburn v. Islamic Republic of Iran,
699 F. Supp. 2d 136, 152 (D.D.C. 2010) (finding an extrajudicial killing occurred when Iranian-
backed Hizbollah sold victim to Libyan agents who summarily shot him because Hizbollah sold
him “with the knowledge that he would be murdered”); Han Kim v. Democratic People’s Republic
of Korea, 774 F.3d 1044, 1050–51 (D.C. Cir. 2014) (concluding that plaintiffs put forward enough
evidence of an extrajudicial killing because victim died of starvation and “his North Korean
captors” “[d]eliberately caused” his malnutrition (internal quotation marks omitted)); cf. Hansen,
2024 WL 3026517, at *6 (determining that suicide of missile-attack victim 21 months later did not
make the attack an extrajudicial killing when there was no “direct causal link” between the missile
barrage and the suicide).16
Second, the conclusion is consistent with the D.C. Circuit’s instruction to read
§ 1605A(a)(1) narrowly. Borochov, 94 F.4th at 1062; Hansen, 2024 WL 3026517, at *6. Were
the Court to define extrajudicial killing as expansively as plaintiffs ask, United States courts would
16 In Hansen, another judge in this District faced the question of whether a self-inflicted death months after the relevant attack made the attack an extrajudicial killing. The court found it did not, holding that, to be an extrajudicial killing, “the foreign state must be the direct cause of another person’s death.” See Hansen, 2024 WL 3026517, at *4–6. This Court does not refute Hansen’s holding; rather, the Court believes its conclusion that an extrajudicial killing is an act that is intended to cause death and in fact causes death in the manner contemplated is perfectly consistent with Hansen. The Court chooses to frame the definition as it does because it believes it is clearer. The term “direct cause” is used in various ways, and the Court sees a risk of it being read to incorporate the same over-expansive proximate-cause standard for which the plaintiffs advocate here. See, e.g., Cause, Black’s Law Dictionary (equating the term “direct cause” to “proximate cause”); Gander v. Mr. Streak of Sun Ray, Inc., 774 F.2d 920, 923 (8th Cir. 1985) (explaining that one definition of “direct cause” is “a cause which had a substantial part in bringing about the injury, either immediately or through happenings which follow one after another”).
25 have jurisdiction over an indefinable and unlimitable number of claims against foreign states. The
later death of any victim of an attack, if somehow reasonably connected to the attack, could turn
that act into an extrajudicial killing and thus create a sovereign-immunity-waiving claim for all
other victims thereof. Say an injured victim dies in a car crash on his way to a physical therapy
appointment, or an emotionally-injured victim turns to heavy alcohol use that leads to fatal liver
cancer. These events—whether one year or 30 years after the attack—could sweep into United
States courts a swath of claims against foreign states, contrary to the default rule of sovereign
immunity. The Court declines to open those floodgates. See Ratemo v. Islamic Republic of Iran,
Civ. A. No. 19-2067 (JDB), 2025 WL 294934, at *7 (D.D.C. Jan. 24, 2025) (choosing to “hold[]
the floodgates closed” instead of adopting plaintiffs’ interpretation that “would invite . . . claims
from a substantially expanded class of individuals”).
For all those reasons, an attack amounts to an extrajudicial killing under § 1605A(a)(1)
only if the attack was designed to cause the death of another and in fact caused the death of another
in the manner contemplated or a similar manner. Here, however, the attacks SSG Thomas and
LCPl Wright endured did not cause the two men’s deaths in a manner at all similar to that which
the Syndicate intended.
Both the May 16, 2010 attack that injured SSG Thomas and the May 6, 2010 attack that
injured LCpl Wright were purposefully designed to kill members of the Coalition Forces through
the direct application of lethal force. As the Court explained in an earlier opinion, the Syndicate’s
use of tactics such as suicide bombers and IEDs—both of which require knowledge of where an
intended victim will be, when he will be there, and advance deployment of the means of murder—
was “part of an extended terrorist campaign by the Taliban-led Syndicate to kill American
servicemembers to achieve its overarching goal of driving the United States out of Afghanistan by
26 killing and wounding American soldiers and civilians.” Cabrera I, 2022 WL 2817730, at *38.
These tactics on their face show the manner in which the Syndicate intended to carry out its goal
of killing Americans in the two attacks at hand: it intended to kill and injure SSG Thomas and the
others at the traffic-control checkpoint through the blast from the bomb on the suicide vest, and it
intended the IED that LCpl Wright struck to kill and injure Coalition Forces through the blast of
that explosive device.
Neither SSG Thomas nor LCpl Wright died in that intended manner. Their devastating
deaths at their own hands occurred in “a manner very different from” the death by lethal explosive
force that the Syndicate “contemplated[,] or from that which might have been expected” from a
bomb’s blast. See H. Hart & A. Honoré, supra, at 353–54; 1 Subst. Crim. L. § 6.4(f). So the Court
finds that the attacks SSG Thomas and LCpl Wright endured were not extrajudicial killings,
despite the two men’s tragic deaths.
As the Court has explained elsewhere, this does not mean that no self-inflicted death could
be an extrajudicial killing. See Kar, 2022 WL 4598671, at *15 n.14. But here, plaintiffs put
forward no evidence that the Syndicate designed the instant suicide bombing and IED attack with
the intention of forcing the targeted servicemembers to take their own lives or ingest substances
that would end their lives. See id. Everything before the Court shows that the attacks were instead
intended to end the targeted servicemembers’ lives via the force of the bombs. That intention
fortunately failed. So, although the attacks doubtlessly contributed to SSG Thomas’s and LCpl
Wright’s far-too-premature deaths, they were not extrajudicial killings within the meaning of
* * *
27 The attacks that injured CPT DuVal, SSG Thomas, and LCpl Wright were brutal,
inhumane, and utterly detestable. Yet the term extrajudicial killing does not reach every act that
leads to a person’s death. The Court harbors no doubt that CPT DuVal, Danica Thomas, L.T.,
F.S., Dawn Marie Pattee, Kristen Colleen Luncers, and Jalisa Marie Stark deserve compensation
for the atrocities visited upon them and their family members. But this Court does not have the
power to provide it. Those plaintiffs’ claims are thus dismissed for lack of subject matter
jurisdiction.
II. Cause of Action
Now that the Court has determined it has subject matter jurisdiction over all but seven of
the Tranche 2 plaintiffs’ claims, it is simple to conclude that those plaintiffs have a cause of action.
The requirements of the terrorism-exception cause of action largely mirror those for subject matter
jurisdiction. To have a cause of action, the “plaintiff must show his injury was caused by one of
the enumerated acts of terrorism or material support therefor; carried out by a state sponsor of
terrorism or an official, employee, or agent of that state; and that the plaintiff is a U.S. national,
member of the armed forces, a U.S. employee or contractor, or the legal representative of one of
those people.” Mem. Op. [Zambon, ECF No. 303] (“Zambon Mem. Op.”) at 4–5 (citing
§ 1605A(c)). In addition to direct victims, the FSIA’s cause of action “also ‘encompass[es] claims
by family members of those injured or killed for the distress caused by their relative’s injuries.’”
Cabrera IV, 2024 WL 3225942, at *6 (alteration in original) (quoting Force v. Islamic Republic
of Iran, 464 F. Supp. 3d 323, 359 (D.D.C. 2020)). The Court already determined that the relevant
Tranche 2 plaintiffs’ asserted injuries were caused by an act of extrajudicial killing carried out by
Iran. Now, the Court adopts the Special Masters’ findings that each plaintiff listed in the Order
issued on this date is a U.S. national, member of the armed forces, a U.S. employee or contractor,
28 or the legal representative of one of those people and that each non-direct victim is a family
member or a functional equivalent.17 See Green R. &. R. [ECF No. 289-1] at 13; Griffin R. &. R.
[ECF No. 289-2] at 15–16; Pigott R. &. R. [ECF No. 289-4] at 1; Saltzburg R. &. R. [ECF No.
289-5] at 4; see also 18 U.S.C. § 1605A(c). So these plaintiffs have a cause of action under the
FSIA.
III. Damages
The Court now moves to damages. It first considers the direct victims entitled to pain and
suffering damages and then considers family-member plaintiffs entitled to solatium damages.
a. Direct Victims: Pain and Suffering
When awarding pain and suffering damages, “a court’s primary consideration is to ensure
that individuals with similar injuries receive similar awards.” Cabrera I, 2022 WL 2817730, at
*43 (cleaned up). Judges in this District employ the so-called Peterson II framework to achieve
that goal of consistency. See Peterson v. Islamic Republic of Iran (“Peterson II”), 515 F. Supp. 2d
25 (D.D.C. 2007); Cabrera I, 2022 WL 2817730, at *43 (applying Peterson II framework). “Under
this framework, courts award a baseline of $5 million to ‘individuals who suffer severe physical
injuries, such as compound fractures, serious flesh wounds, and scars from shrapnel, as well as
lasting and severe psychological pain,’ varying upward to $7–$12 million ‘[w]here physical and
psychological pain is more severe . . . such as where victims suffered relatively more numerous
and severe injuries, were rendered quadriplegic, partially lost vision and hearing, or were mistaken
for dead,’ and varying downward to $1.5–$3 million ‘where the victim suffers severe emotional
17 In accordance with this Court’s earlier holding, Special Master Saltzburg determined that plaintiff W.P. did not have standing to sue for solatium damages because he was in utero at the time his father was wounded in Afghanistan. See Cabrera II, 2023 WL 3496303, at *7; Saltzburg R. & R. [ECF No. 289-5] at 70–72. Since that recommendation, however, the D.C. Circuit has clarified that in-utero plaintiffs do have standing to seek solatium damages. See generally K.E.F.V. v. Islamic Republic Iran, Case No. 23-7076 (D.C. Cir. Apr. 29, 2025). The Court thus determines that W.P. has standing and will award him solatium damages.
29 injury accompanied by relatively minor physical injuries.’” Cabrera IV, 2024 WL 3225942, at *7
(alterations in original) (quoting Wamai v. Republic of Sudan, 60 F. Supp. 3d 84, 91 (D.D.C.
2014)).
The Special Masters considered each direct victim’s evidence and recommended damages
awards largely consistent with the Peterson II framework and the opinions applying it. The Court
adopts the Special Masters’ recommendations as to the Tranche 2 direct victims over whose claims
the Court has jurisdiction, except as outlined below.
• U.S. Army PFC Maggie Mae Bilyeu: Special Master Saltzburg recommended awarding
U.S. Army Private First Class Maggie Mae Bilyeu $9 million in pain and suffering
damages due to injuries she suffered in Afghanistan. Saltzburg R. & R.at 152. As a result
of the attack, PFC Bilyeu’s left leg was amputated, a plate was put in her torso, and she
had to have numerous surgeries. Decl. of Maggie Mae Bilyeu [ECF No. 289-5 at *793]
¶¶ 10–19. The Court concludes an $8.5 million award is more consistent with other
injured victims who lost a limb and were rendered incapable of functioning on their own
and in society. See Cabrera IV, 2024 WL 3225942, at *8.
• U.S. Air Force SSgt Brian Anthony Williams: Special Master Saltzburg recommended
awarding U.S. Air Force Staff Sergeant Brian Anthony Williams $9 million in pain and
suffering damages for his injuries sustained in Afghanistan. Saltzburg R. & R. at 112.
SSgt Williams had one leg amputated and suffered other severe injuries, both physical and
mental. Decl. of SSG Brian Anthony Williams [ECF No. 289-5 at *585] ¶¶ 8–9. He has
since undergone multiple treatments and surgeries, and was in the hospital for 18 months.
Id. ¶ 10; Decl. of Lionel Williams [ECF No. 289-5 at *600] ¶ 6. Special Master Saltzburg
compared SSG Williams’s injuries to CPT Ryan Timoney, to whom the Court awarded
30 $9 million in damages. Saltzburg R. & R. at 112. CPT Timoney, however, suffered graver
injuries than SSG William’s obviously severe injuries. See Cabrera I, 2022 WL 2817730
at *29–31 (explaining CPT Timoney’s many surgeries and treatments immediately
following the attack, that he was “a wreck” cognitively, got an implant in his skull, and
had severe seizures, among other complications). The Court determines an award of $8.5
million for SSG William is more consistent with the Court’s past awards for individuals
with similar injuries. See Cabrera IV, 2024 WL 3225942, at *8 (discussing $8.5 million
award to plaintiff “who was severely burned, lost his right arm, stayed in the hospital for
over two months, and suffers from nerve pain, among other injuries”).
• U.S. Army SFC Gregory Allen Stube: Special Master Saltzburg recommended awarding
$8.5 million to U.S. Army Sergeant First Class Gregory Allen Stube. Saltzburg R. & R.
at 25. Although Special Master Saltzburg recognized that SFC Stube’s physical and
mental injuries are similar to those for which the Court has awarded $7.5 million, Special
Master Saltzburg reasoned that an additional upward variance was warranted because SFC
Stube was also a single father and had to raise his son alone with his injuries. Id. This
Court has never taken a survivor’s parental status into account when awarding pain and
suffering damages. While the Court is sympathetic to SFC Stube’s situation as a single
parent in light of his injuries, it continues to base its damages awards on the extent to an
individual’s injuries and thus awards SFC Stube $7.5 million, which is more consistent
with other survivors with similar injuries. See Cabrera IV, 2024 WL 3225942, at *8
(awarding $7.5 million to CPL Raul Olivares Jr., who suffered facial laceration, compound
factures to both tibias and fibulas, and a calcaneus fracture to his right ankle, and had to
spend nearly two years rehabbing).
31 • U.S. Army SFC Marc Yvon Dervaes: Special Master Green recommended awarding
U.S. Army SFC Marc Yvon Dervaes $9.5 million in damages for pain and suffering.
Green R. & R. at 32. SFC Dervaes immediately lost his right arm in the attack and
sustained burns and injuries from shrapnel cross his body, then was later diagnosed with
a TBI and PTSD. Decl. of SFC Marc Yvon Dervaes [ECF No. 289-1 at *83] ¶¶ 6, 10–11.
Sadly, SFC Dervaes has attempted suicide twice due to the distress of his injuries. Id.
¶¶ 16–18. The Court determines SFC Dervaes’s injuries are similar to Corporal Jonathan
Cleary, to whom the Court awarded $8 million. Cabrera IV, 2024 WL 3225942, at *8
(explaining that CPL Cleary “was in a coma for two months, underwent the amputation of
one leg, and suffers from PTSD and TBI”). However, unlike for SFC Dervaes, the Court
did not find that CPL Cleary had attempted to take his own life. So the Court adjusts
upward from CPL Cleary’s award by 10 percent and awards SFC Devares $8.8 million.
Id. at *10 (explaining that “greater than usual harm in the form of suicide attempts and/or
hospitalizations for such attempts . . . warrant a 10% enhancement”).
b. Family-Member Plaintiffs: Solatium
Under § 1605A, family-member plaintiffs can recover solatium damages. Cabrera IV,
2024 WL 3225942, at *9. “Solatium claims are ‘functionally identical to claims for intentional
infliction of emotional distress,’ and are ‘intended to compensate persons for mental anguish,
bereavement and grief that those with a close personal relationship to a decedent experience . . . as
well as the harm caused by the loss of the decedent’s society and comfort.’” Id. (quoting Spencer
v. Islamic Republic of Iran, 71 F. Supp. 3d 23, 27 (D.D.C. 2014) (omission in original)). As it
does when awarding pain and suffering damages, the Court uses the Peterson II framework to
award solatium damages. See id. That framework provides that the baseline solatium awards are
32 a function of “both a plaintiff’s relationship to the direct victim and whether the direct victim was
killed or injured.” Zambon Mem. Op. at 49. “If the direct victim was killed, the baseline amounts
are $8 million for spouses, $5 million for parents and children, and $2.5 million for siblings,” while
“the baseline amounts are cut in half” if the direct victim was injured, amounting to baselines of
“$4 million for spouses, $2.5 million for parents and children, and $1.25 for siblings.” Id.
The Special Masters reviewed each family-member plaintiff’s evidence and recommended
an award. Because those awards are largely consistent with the Peterson II framework, the Court
adopts the Special Masters’ recommendations as to the Tranche 2 family-member plaintiffs over
whose claims the Court has jurisdiction, except as outlined below.
• W.P.: W.P. was in utero at the time his father, SSgt Jack Pierce, was wounded in
Afghanistan. Saltzburg R.& R. at 71. While this Court had previously held that in utero
plaintiffs do not have standing to seek solatium damages, it also explained that—were the
D.C. Circuit to determine such plaintiffs do have standing—the Court would vary
downward from the Peterson II baseline by 50 percent for in-utero plaintiffs because they
have “not suffered the same mental anguish as most plaintiffs that experienced the loss of
a parent.” Cabrera III, 2024 WL 864092, at *3 n.2. Since the Circuit has now determined
that in-utero plaintiffs have standing, see supra, n.18, this Court awards W.P. $1.25 million
in solatium damages.
• Martha Looney, Leah A. Turner, and Shannon K. McNulty: Special Master Green
recommended awarding Martha Looney, whose son SGT Andrew Looney was killed in
Afghanistan, $5.5 million in solatium damages. Green R. & R. at 35. The 10 percent
upward adjustment was explained by Martha’s hospitalization for several weeks due to
depression following her son’s death. Id. Similarly, Special Master Griffin recommended
33 a 10 percent upward adjustment for Leah A. Turner—whose husband was killed in
Afghanistan—because Turner was also hospitalized twice due to the grief of her loss.
Griffin R. & R. at 25–26. Lastly, Special Master Pigott recommended the Court award
Shannon K. McNulty $2.75 million because she was hospitalized for a month after the
death of her brother. See Pigott R. & R. at 45–46. The Court acknowledges these women’s
deep agony but determines an upward adjustment is not consistent with this Court’s prior
damages awards. As the Court said in Cabrera IV, the Peterson II baseline amounts “take
into consideration the likelihood of serious detrimental effects” such as temporary
hospitalization. 2024 WL 3225942, at *10, 14. So the Court will award Looney the $5
million baseline for parents, Turner the $8 million baseline for spouses, and McNulty the
$2.5 million baseline for siblings.
• Daniel Griffin: Special Master Green recommended awarding Daniel Griffin $2.25
million. Green R. & R. at 57. Daniel’s stepbrother, Army Command Sergeant Major Kevin
James Griffin, was killed in Afghanistan. Id. at 55. Daniel and Kevin met when they were
about 9 years old and 8 years old, respectively, because their parents were considering
marriage. Decl. of Daniel Griffin [ECF No. 289-1 at *228] ¶ 4. They “immediately began
developing a bond as siblings,” became stepbrothers later that year, and grew up in the
same house until Kevin left for college ten years later. Id. Special Master Green
recommended departing downward by 10 percent because he compared Daniel’s
relationship to Kevin to a stepparent who had custody of his child for most, but not all his
life. Green R. & R. at 57. But this Court has awarded the full Peterson II baseline amount
of $2.5 million to foster siblings who met the direct victim at ages far beyond 8 and 9 years
old. See Cabrera I, 2022 WL 2817730, at *52–53 (awarding $2.5 million to two foster
34 siblings of Lieutenant Colonel David Cabrera, one who met LTC Cabrera when LTC
Cabrera was 13 years old and the sibling was 17 years old, and the other who met LTC
Cabrera when that sibling was 13 years old). The Court thus awards Daniel $2.5 million
as well.
• Taylor Schrock: Similarly, Special Master Saltzburg recommended awarding Taylor
Schrock $2.25 million in solatium damages for the loss of his stepbrother Max, because
Taylor and Max met when Taylor was 9 years old and Max 12 years old. Saltzburg R. &
R. at 99–101. But, once again, this Court has awarded the full $2.5 million to sibling-
equivalents “who lived with the victim or otherwise demonstrated a close sibling
relationship.” Cabrera IV, 2024 WL 3225942 at *14. Taylor and Max were “inseparable”
even before they lived together, and they “did everything together” from there on out. Decl.
of Taylor Schrock [ECF No. 289-5 at *525] ¶¶ 4, 6. Taylor even got a tattoo of Max and
their other brother’s initials. Id. ¶ 6. Given that Taylor and Max lived together for at least
three years and had a very close relationship before and afterwards, the Court will also
award Taylor the full $2.5 million.
• Estate of Becky S. Poock: Special Master Griffin recommended awarding the Estate of
Becky S. Poock $4.5 million in solatium damages. Griffin R. & R. at 52–53. Becky’s son,
Donald Nichols, was killed in an attack in Afghanistan. Id. at 49–50. In addition to the 20
percent downward variance appropriate for an estate plaintiff, see, e.g., Cabrera II, 2023
WL 3496303, at *10, Special Master Griffin varied upward by 10 percent because Becky
had suffered a “greater-than-average impact” from her grief, Griffin R. & R. at 52–53. This
was in part because Becky suffered “three strokes and one brain aneurysm” after she lost
her son and she “attribute[d] these ailments directly to the loss of” Donald. Decl. of Becky
35 S. Poock [ECF No. 289-2 at *214] ¶ 7. Becky’s husband also stated that doctors told him
that Becky’s aneurysm likely occurred because she “likely always had a weak blood
vessel” and it “finally gave up under stress.” Decl. of Roger Poock [ECF No. 289-2 at
*221] ¶ 15. He then “told [the doctors] about losing” their son and they said “it sounded
like” the aneurysm and the loss of Donald “were related.” Id. Neither Becky nor Roger
give any other evidence of the aneurysm’s cause. The Court concludes that this is
insufficient to attribute the aneurysm to Donald’s death. See Cabrera IV, 2024 WL
3225942, at *14 n.10 (declining to apply upward enhancements “without evidence of a
direct link between [the decedent’s] death and [the plaintiff’s] diagnosis”). As a result, the
Court awards the Estate $4 million.
• Cristinemae Barcel Mittler: Special Master Griffin recommended awarding Cristinemae
Barcel Mittler $4 million in solatium damages for the death of her father because the
Special Master compared Cristinemae to Corbin and Gillian Cabrera in Cabrera I. Griffin
R. & R. at 67–68. However, the Court awarded Corbin and Gillian $4 million because,
although they had never lived with their father, “he was involved in both of their lives.”
Cabrera I, 2022 WL 2817730, at *50. Cristinemae never lived with or near her father; she
lived in the Philippines with her mother, and while her “dad visited . . . a few
times . . . [she] can only recall one memory with him from a visit when [she] was five years
old.” Decl. of Cristinemae Barcel Mittler [ECF No. 289-2 at *305] ¶¶ 3–4. The Court thus
concludes that Cristinemae is less like Corbin and Gillian and more like Tristyn A. Vinson-
Hosford, “who was raised solely by his great-grandparents” and had little contact with his
father. Cabrera IV, 2024 WL 3225942, at *11. The Court therefore awards Cristinemae
$3.5 million, the same amount it awarded Tristyn. Id.
36 • N.W.: Special Master Pigott recommended awarding N.W. $3 million in solatium
damages. Pigott R. & R. at 51. N.W. was two years old when her mother, Illinois National
Guard SGT Simone Asia Robinson, died in Afghanistan. Decl. of Regina Byther on Behalf
of N.W. [ECF No. 289-4 at *285] ¶ 3. Instead of varying downward by 30 percent, as the
Court as done for children who lost their parents between the ages of 1 and 3, see Cabrera
IV, 2024 WL 3225942, at *11, Special Master Pigott varied downward by 40 percent
because N.W.’s “actual in-person experience with her mother was limited to her first few
months of her life,” Pigott R. & R. at 51. While not always living together, N.W. and SGT
Robinson were close throughout N.W.’s first two years of life: SGT Robinson spent time
with N.W. in person, talked to N.W. on the phone, and the two had a favorite activity
together. Decl. of Regina Byther on Behalf of N.W. ¶ 4. The Court therefore concludes
that the traditional 30 percent downward variance is appropriate here and awards N.W.
$3.5 million.
• B.H.B.: Special Master Saltzburg recommended awarding B.H.B. $4.5 million in solatium
damages. Saltzburg R. & R. at 48. B.H.B.’s father was killed in Afghanistan when B.H.B.
was one-and-a-half years old. Decl. of Enjolie Wallace Bates on Behalf of B.H.B. [ECF
No. 289-5 at *260] ¶ 3. When B.H.B. was old enough to understand his father’s death, he
asked to go to boarding school so no parents would be present. Id. ¶ 10. There, B.H.B.
expressed suicidal thoughts and was sent to a psychiatric hospital. Id. He “received
inpatient treatment for a while” and was diagnosed with mental illnesses and disorders such
as depression, bipolar disorder, and schizophrenia. Id. Since then, B.H.B. has improved
and returned to school, where he is doing well. Id. ¶ 11. Special Master Saltzburg varied
upward after applying the standard 30 percent reduction for children who lost their parent
37 between ages 1 and 3 because of B.H.B.’s past hospitalization and diagnoses and “past and
ongoing severe emotional suffering and distress.” Saltzburg R. & R. at 47–48. In Special
Master Saltzburg’s view, B.H.B. is similar to R.C., son of LTC Cabrera, to whose award
the Court applied a 20 percent upward variance. Id. at 47. Like R.C., B.H.B. struggled
with suicidal thoughts and switched schools. Cabrera I, 2022 WL 2817730, at *49. But
R.C. also was “a target for bullying” and “unable to attend traditional schools,” and he had
attempted suicide. Id. B.H.B., in contrast, did not switch schools because he was unable
to attend a traditional school and does not appear to have attempted suicide. Additionally,
he now is doing well at a normal school. See Decl. of Enjolie Wallace Bates on Behalf of
B.H.B. ¶¶ 10–11. The better comparator for B.H.B. is A.J.Q., “who developed borderline
personality disorder, reactive attachment disorder, and PTSD due to the death of her
father,” but had “not attempted suicide” nor “dropped out of school as a result of her grief.”
Cabrera IV, 2024 WL 3225942, at *10. The Court will thus vary upward by 10 percent as
it did for A.J.Q., see id., rather than 20 percent, and award B.H.B. $4 million.
• Mark Anthony White: Special Master Saltzburg recommended awarding Mark Anthony
White $2.75 million for the death of his brother. Saltzburg R. & R. at 134. The rationale
for this 10 percent upward variance was that, following his brother’s death, Mark became
addicted to drugs and alcohol, and that addiction led to further hardships. Id. However,
the Peterson II baseline “take[s] into consideration the likelihood of [such] serious
detrimental effects . . . on families.” See Pennington v. Islamic Republic of Iran, Civ. A.
No. 19-796 (JEB), 2022 WL 168261, at *3 (D.D.C. Jan. 19, 2022), vacated in part, 2022
WL 18814284 (D.D.C. May 3, 2022); see Cabrera IV, 2024 WL 3225942, at *14. The
Court will thus award Mark Anthony the baseline $2.5 million.
38 IV. Prejudgment Interest
Lastly, as the Court has previously concluded, “an award of prejudgment interest is
appropriate” in this case. Cabrera I, 2022 WL 2817730, at *55. As for its previous damages
awards, the Court calculated the interest for each plaintiff here using the methodology laid out in
Forman v. Korean Air Lines Co., 84 F.3d 446 (D.C. Cir. 1996). See, e.g., Cabrera I, 2022 WL
2817730, at *55; Cabrera IV, 2024 WL 3225942, at *14.
Conclusion
For the above reasons, the Court will enter default judgment and award damages for 190
of the 197 Tranche 2 plaintiffs. A separate Order consistent with this Opinion shall issue on this
date.
/s/ JOHN D. BATES United States District Judge Dated: May 16, 2025
Related
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