District Court Finds FSIA Terrorist Exception Met by Generalized Allegations of Proximite, Rather than But-for, Causation

District Court Finds FSIA Terrorist Exception Met by Generalized Allegations of Proximite, Rather than But-for, Causation

By Louis M. Solomon

Sheryl Wultz, et al. v. Islamic Republic of Iran, 08-cv-1460 (D.D.C. 2010), [enhanced version available to lexis.com subscribers] bears mention because of more recent attempts by non-U.S. sovereigns to avoid jurisdiction in the U.S. under 29 U.S.C. § 1605A (see our discussion of the application of the new terrorist exception to overcome claims of sovereign immunity). The ruling concerning causation also has implications to international litigation practice generally.

Daniel Wultz and his father were, respectively, killed and injured in a Palenstinian suicide bombing in April 2006 in Tel Aviv. The family sued Syria under the terrorism exception of the Foreign Sovereign Immunities Act (§ 1605A).

In denying the Syrian defendants' motion to dismiss, the District Court rejected as "utterly meritless" arguments that the FSIA terrorism exception violates the principle of sovereign immunity, or that it raises nonjusticiable political questions, or that it violates the separation of powers limitations of the U.S. constitution.

On the issue of whether the complaint in the case adequately pleaded a causal link between Syria and the Tel Aviv bombing, the District Court ruled that "there is no 'but-for' causation requirement for claims made under the FSIA"; the statute used the unadorned term "caused by". Following the U.S. Supreme Court's decision in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law] , as well as Circuit authority, the District Court held that the statutory language required only "proximate cause" - i.e., "some reasonable connection between the act or omission of the defendant and the damages which the plaintiff has suffered". The District Court found that connection adequately pleaded by allegations that "the Syrian defendants provided the [Palestinian terrorist unit] with, inter alia, "financial support"; "military-grade explosives, military firearms[,] and other weapons and matériel"; "specialized and professional military training for the planning and execution of terrorist attacks"; "means of electronic communication and electronic communications equipment"; "financial services, including banking and wire transfer services"; and "lodging, safe haven[,] and shelter."

The District Court went on to say that the "Syrian defendants even allegedly provided the [Palestinian terrorist unit] with a headquarters in Damascus, including land, buildings, and utilities". The District Court reasoned that these allegations were "substantially similar" to those made against Syria in another case decided by the District Court, which we also found to be sufficient. The District Court did not analyze the allegations under any theory of indirect or aiding and abetting liability.

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