Mohammadi v. Islamic Republic of Iran, No. 13-7109 (D.C. Cir. 2015) [click for opinion]

Plaintiffs, three Iranian émigré siblings and the estate of their deceased brother, brought suit in the U.S. District Court for the District of Columbia seeking recovery from the Islamic Republic of Iran, the Revolutionary Guard, Ayatollah Khameni, and Mahmoud Ahmadinejad for imprisonment, torture, extrajudicial killing, and kidnapping allegedly suffered at the hands of the Iranian regime. Defendants did not appear and Plaintiffs moved for entry of a default judgment. Plaintiffs premised subject matter jurisdiction solely upon the terrorism exception to sovereign immunity in the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605A, which abrogates immunity if the complaint seeks damages for torture, extrajudicial killing, or hostage taking, and the claimant or victim was a national of the United States at the time of the relevant acts.

The alleged physical abuse of Plaintiffs took place in Iran before the surviving Plaintiffs emigrated to the United States, where the two Plaintiff sisters became U.S. citizens and the surviving Plaintiff brother became a lawful permanent resident. Plaintiffs also complained of continued threats and harassment by the Iranian regime while Plaintiffs resided in the U.S., and of the regime's refusal to allow Plaintiffs' parents to leave Iran.

The district court dismissed Plaintiffs' complaint for lack of subject-matter jurisdiction, finding that (1) Plaintiffs failed to qualify as U.S. nationals at the time of the relevant acts in Iran, and (2) any acts postdating Plaintiffs' relocation to the U.S. did not constitute torture within the meaning of the FSIA.

The D.C. Circuit affirmed the district court judgment in all respects. The FSIA's terrorism exception assigns to the term "national of the United States" the meaning given in the Immigration and Nationality Act ("INA"),8 U.S.C. § 1101(a)(22), which is either a U.S. citizen or a non-citizen who "owes permanent allegiance to the United States." Plaintiffs argued that they personally pledged allegiance to the U.S. and disclaimed loyalty to Iran at the first signs of persecution in Iran. The D.C. Circuit cited precedent from several circuits holding that manifestations of permanent allegiance alone are insufficient to render a person a U.S. national. Rather, the phrase "owes permanent allegiance" is a term of art that "describes rather than confers" U.S. nationality, and the only statutory provision conferring U.S. nationality upon non-citizens is Section 1408 of the INA, which describes four categories of persons who become U.S. nationals, but not citizens, at birth. Those categories generally consist of persons born in or with a parental or personal connection to "outlying possessions" of the U.S., presently defined as American Samoa and Swains Island.

As two Plaintiffs unquestionably had become nationals by obtaining U.S. citizenship after relocating to the U.S., the court considered whether the Iranian regime's subsequent acts of harassment constituted torture within the meaning of the FSIA's terrorism exception. The Torture Victim Protection Act ("TVPA"), 106 Stat. 73, note following 28 U.S.C. § 1350, to which the FSIA refers for its definition of torture, requires that the victim have been (1) in the offender's custody or physical control and (2) intentionally subjected to severe pain or suffering. The court found that Defendants' alleged harassment of Plaintiffs in the U.S. did not rise to the level of torture because Plaintiffs were not in Iran's control at the time the conduct occurred, and the conduct was less severe than anything previously held to constitute torture within the meaning of the TVPA.

Plaintiffs also argued that Defendants' sovereign immunity was abrogated because the Iranian regime's refusal to allow Plaintiffs' parents to leave Iran constituted hostage taking within the meaning of the FSIA's terrorism exception. The court rejected this argument as well, finding no abuse of discretion in the district court's determination that Plaintiffs waived the argument by not advancing it prior to their motion for reconsideration. In any event, the D.C. Circuit observed, courts have held that hostage taking requires physical capture and confinement, not mere restrictions on international travel.