                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
__________________________________
                                    )
RACHEL DEVORA SPRECHER              )
FRAENKEL, et al.,                   )
                                    )
            Plaintiffs,             )
                                    )   Civil Action No. 15-1080 (RMC)
      v.                            )
                                    )
ISLAMIC REPUBLIC OF IRAN, et al., )
                                    )
            Defendants.             )
_________________________________   )

                  MEMORANDUM OPINION ON RECONSIDERATION

               The Fraenkel Family sued the Syrian Arab Republic, Islamic Republic of Iran,

and Iranian Ministry of Information and Security (MOIS), as supporters of Hamas, for the

murder by Hamas of 16-year-old Naftali Fraenkel, son and brother. The Court ruled for the

Fraenkels and awarded money damages. The Fraenkels appealed the sufficiency and reasoning

behind the damages awards and the D.C. Circuit affirmed in part, reversed in part, and remanded

for this Court to reconsider solatium damages. This Court has reconsidered and increased the

awards for solatium damages. The Fraenkel Family now asks again for reconsideration, seeking

a further increase in their damages. The Court will deny the motion.

                                     I. BACKGROUND

               The Court provided an in-depth description of the facts in its Memorandum

Opinion on the original motion for default judgment and will not repeat it here. See Fraenkel v.

Islamic Rep. of Iran, 248 F. Supp. 3d 21 (D.D.C. 2017) (Fraenkel I). In short, the Fraenkels

sued Iran, Syria, and MOIS on July 9, 2015 after Naftali’s murder; the Court held a two-day

hearing on the their Motion for Default Judgment on December 6-7, 2016; and, after briefing, on

March 31, 2017, the Court issued its Memorandum Opinion and Order, finding in favor of the
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Fraenkels and awarding $1 million in pain and suffering damages to Naftali’s estate; $3.1 million

in solatium damages to the U.S.-citizen plaintiffs; $1 million in solatium damages to Abraham

Fraenkel, a citizen of Israel; and $50 million in punitive damages. See Final Order [Dkt. 40].

               The Fraenkels moved to reopen the case on the same day the Court’s Final Order

issued; the Court denied that motion. See 4/3/2017 Minute Order. The Fraenkels then moved to

reconsider the damages award; the Court also denied that motion. See Fraenkel v. Islamic Rep.

of Iran, 258 F. Supp. 3d 77 (D.D.C. 2017) (Fraenkel II). Fraenkel II clarified the award by

identifying the specific amounts in solatium damages awarded to each of the U.S.-citizen family

members. See id. at 85.

               When the Fraenkels appealed, the U.S. Court of Appeals for the District of

Columbia Circuit affirmed in part, reversed in part, and remanded to reconsider the solatium

damages. The Circuit ordered this Court to determine such damages by applying the relevant

factors articulated in Flatow v. Islamic Rep. of Iran, 999 F. Supp. 1, 30-32 (D.D.C. 1998), and

without considering nationality or “assumption of risk.” Fraenkel v. Islamic Rep. of Iran, 892

F.3d 348, 357-61 (D.C. Cir. 2018) (Fraenkel III). On remand, the Fraenkels submitted

supplemental information. See Supp. Mem. [Dkt. 51]. The Court issued its Memorandum

Opinion on remand on July 13, 2018, awarding the following solatium damages:

               Rachelle Fraenkel - $2,000,000

               Abraham Fraenkel - $2,000,000

               Tzvi Amitay Fraenkel - $750,000

               Ayala Chaya Hinda Fraenkel - $750,000

               A.L. Fraenkel - $750,000

               N.E. Fraenkel - $750,000



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               N.S. Fraenkel - $750,000

               S.R. Fraenkel - $750,000

Fraenkel v. Islamic Rep. of Iran, No. 15-1080, 2018 WL 3418783, at *1 (D.D.C. July 13, 2018)

(Fraenkel IV). The Fraenkels timely filed the instant motion ten days later, on July 23, 2018;

they ask the Court to reconsider its awards under Rules 59(e) and 60(b)(4). Pls.’ Mot. to Amend

or Alter the J. and for Recons. of the Amount of Solatium Damages Awarded (Mot. to Recons.)

[Dkt. 54]. Defendants have never appeared in this case. The motion is ripe for review.

                                    II. LEGAL STANDARD

               Federal Rule of Civil Procedure 59(e) allows a party to move to alter or amend a

judgment within 28 days of the entry of judgment. “Motions filed under Rule 59(e) are generally

disfavored, and are granted only when the moving party establishes that extraordinary

circumstances justify relief.” Moses v. Dodaro, 856 F. Supp. 2d 99, 102 (D.D.C. 2012) (citing

Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001)). Motions for

reconsideration under Rule 59(e) are “discretionary and need not be granted unless the court

finds that there is ‘an intervening change of controlling law, the availability of new evidence, or

the need to correct a clear error or prevent manifest injustice.’” Nanko Shipping, USA v. Alcoa,

Inc., 118 F. Supp. 3d 372, 375 (D.D.C. 2015) (quoting Messina v. Krakower, 439 F.3d 755, 758

(D.C. Cir. 2006)). To constitute clear error, a final judgment “must be ‘dead wrong.’” Id.

(quoting Lardner v. FBI, 875 F. Supp. 2d 49, 53 (D.D.C. 2012)).

               “Rule 59(e) . . . ‘may not be used to relitigate old matters, or to raise arguments or

present evidence that could have been raised prior to the entry of judgment.’” Exxon Shipping

Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 11 Wright & Miller, Fed. Prac. and Proc.

§ 2810.1 (2d ed. 1995)); see also Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F.



                                                 3
Supp. 2d 5, 10 (D.D.C. 2011) (“In this Circuit, it is well-established that motions for

reconsideration, whatever their procedural basis, cannot be used as an opportunity to reargue

facts and theories upon which a court has already ruled, nor as a vehicle for presenting theories

or arguments that could have been advanced earlier.”) (internal citations omitted).

               Federal Rule of Civil Procedure 60(b) provides for motions for relief from a

judgment or order due to: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence; (3) fraud, misrepresentation, or other misconduct; (4) void judgment; (5)

satisfied, released, or discharged judgment; or (6) “any other reason that justifies relief.” Fed. R.

Civ. P. 60(b). Whether a party should be granted relief under Rule 60(b) is a matter left to the

district court’s discretion: “[T]he district judge, who is in the best position to discern and assess

all the facts, is vested with a large measure of discretion in deciding whether to grant a Rule

60(b) motion, and the district court’s grant or denial of relief under Rule 60(b), unless rooted in

an error of law, may be reversed only for abuse of discretion.” Comput. Prof’ls for Soc.

Responsibility v. United States Secret Serv., 72 F.3d 897, 903 (D.C. Cir. 1996) (quoting Twelve

John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988)).

               “As the Supreme Court made clear in United Student Aid Funds, Inc. v. Espinosa,

relief under Rule 60(b)(4) is available ‘only in the rare instance where a judgment is premised

either on a certain type of jurisdictional error or on a violation of due process.’” United States v.

Philip Morris USA Inc., 840 F.3d 844, 847 (D.C. Cir. 2016) (quoting 559 U.S. 260, 271 (2010));

see also Combs v. Nick Garin Trucking, 825 F.2d 437, 442 (D.C. Cir. 1987) (“Relief under Rule

60(b)(4) is not available merely because a disposition is erroneous. Rather, before a judgment

may be deemed void within the meaning of the rule, it must be determined that the rendering

court was powerless to enter it.”) (internal citations omitted).



                                                  4
                                         III. ANALYSIS

               The Fraenkels argue that the Court should reconsider its damages awards to them

because the awards are “inconsistent with the mandate of the court of appeals and with the

awards received by many other similarly situated victims of terrorism,” violate the mandate rule,

and “work[] manifest injustice on the plaintiffs.” Mot. to Recons. at 2.

               Plaintiffs’ Motion for Reconsideration raises the following issues with this

Court’s Memorandum Opinion: (1) the Court erred in failing to use the Flatow factors to

compute the amount of awards for loss of solatium, not merely eligibility to receive an award;

(2) FSIA awards for loss of solatium must be based on the amounts awarded in Flatow, which

was “adopted” by the D.C. Circuit “as the benchmark against which future solatium awards must

be judged,” id. at 7; (3) this Court failed to consider similar awards in comparable cases; (4) the

Court erred when it compared this case to Gates v. Syrian Arab Rep., 580 F. Supp. 2d 53 (D.D.C.

2008); and (5) the Court should have awarded at least the same amounts in solatium damages as

it awarded in Gates. None of these arguments provides new information or argument or justifies

the extraordinary relief that is provided by Rules 59(e) and 60(b)(4).

               Rule 59(e) may not be used to relitigate old matters or to raise arguments that

could have been raised at an earlier point. See Exxon Shipping, 554 U.S. at 485 n.5. When the

Fraenkels initially sought damages awards for loss of solatium, they argued that the Court was

bound to follow Estate of Heiser v. Islamic Rep. of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006), as

have a number of jurists on this Bench. See Proposed Findings of Fact and Conclusions of Law

[Dkt. 36] at 71; Pls.’ First Mot. to Amend [Dkt. 44] at 2 (arguing that the Court erred in not

following Heiser, “a case which has become the gold standard on the calculation of damages

awards in FSIA cases”). This Court declined to do so and the Fraenkels were unable to persuade



                                                 5
the D.C. Circuit to enter such an order. See Fraenkel II, 258 F. Supp. 3d at 82 (declining to

adopt Heiser); Fraenkel III, 892 F.3d at 361-62 (“We decline to impose Heiser’s framework as a

mandatory scheme under the FSIA.”). Framed now as a mandate to follow Flatow, “however

loosely,” Mot. to Recons. at 7, the Fraenkels continue to urge the Court to adopt the analyses of

other jurists and award significantly greater amounts in solatium damages for parents and

siblings, i.e., a median of $5 million to parents and $2.5 million to siblings. Id. at 8-12 (“The

interests of justice require that this Court consider awards in comparable cases in determining the

award here.”). It would certainly be easier simply to follow Heiser but the Court believes that

difficult cases like this one require difficult and particular analyses of their facts and injuries.

                In its Memorandum Opinion on Remand, the Court evaluated the factors cited in

Flatow that apply here, all of the Fraenkels’ supplemental materials, and the cases they cited.

While the Court respects that many of the other district judges in the District of Columbia have

either followed Heiser or independently awarded solatium damages in approximately similar

amounts, this Court declines to do so.

                The closest analogous case previously decided by this Court is Gates. Not

surprisingly, in their brief on remand, the Fraenkels discussed Gates at length and compared the

circumstances behind the award to the Gates family members to the circumstances in this case.

Pls.’ Supp. Mem. and Status Update in Supp. of Their Mot. for Default J. [Dkt. 51] at 36-37.

The Court’s discussion of Gates on remand was therefore prompted by the Fraenkels’ own

arguments and did not disregard Flatow or rely solely on Gates in reaching its revised damages

award.

                As to the Circuit’s mandate, that document says merely, “[i]n accordance with the

judgment of June 8, 2016, and pursuant to Federal Rule of Appellate Procedure 41, this



                                                   6
constitutes the formal mandate of this court.” Mandate [Dkt. 50]. Accompanying the mandate

was the Circuit’s Judgment, which said:

           ORDERED and ADJUDGED that the District Court’s judgment as to
           pain-and-suffering and punitive damages awards be affirmed; the
           judgment on solatium damages awards be reversed; and the case be
           remanded for further proceedings, in accordance with the opinion of the
           court filed herein this date.

Judgment [Dkt. 50-1]. Neither of these Orders, nor the Circuit’s Opinion, mandated particular

awards to the members of the Fraenkel Family; i.e., the argument that this Court violated the

“mandate rule” on remand is a mirage.

               The instant Motion to Reconsider also alleges “manifest injustice” if the

Fraenkels receive lesser amounts in solatium damages than those awarded to other victims’

families in FSIA cases. Plaintiffs rely especially on the United States Victims of State

Sponsored Terrorism Act, Pub. L. No. 114-113, 129 Stat. 3007, 3007-17 (2015) (codified at 34

U.S.C. § 20144) (originally codified at 42 U.S.C. § 10609), because FSIA plaintiffs may only

recover a percentage of their ultimate awards from a fund set up by the United States government

for that purpose, due to the fact that no defendant has assets in this country. The argument

undercuts the significance of manifest injustice by turning it into a dollar-and-cents comparison.

Rather, a finding of “manifest injustice” requires “at least (1) a clear and certain prejudice to the

moving party that (2) is fundamentally unfair in light of governing law.” Mohammadi v. Islamic

Rep. of Iran, 947 F. Supp. 2d 48, 78 (D.D.C. 2013), aff’d, 782 F.3d 9 (D.C. Cir. 2015); see also

Qwest Servs. Corp. v. FCC, 509 F.3d 531, 540 (D.C. Cir. 2007) (interpreting manifest injustice

as something that would “upset settled expectations—expectations on which a party might

reasonably place reliance”). A difference among district court judges does not create manifest

injustice: as Fraenkel III made clear, even now there is no law or precedent governing the



                                                  7
amounts of damages that should be awarded to FSIA plaintiffs, as each district court judge

exercises discretion in evaluating each record. See 892 F.3d at 361-62. Similar awards from

different judges did not establish a standard upon which these or other plaintiffs could reasonably

have relied because no decision was binding and the analyses varied. In fact, the Circuit rejected

the Fraenkels’ very argument on this point. See id. The motion to reconsider fails to meet the

exacting standard of Rule 59(e), offers no new facts or change in the law that supports altering

the judgment, and fails to demonstrate that without amendment the damages awards will result in

manifest injustice.

               Rule 60(b)(4) also provides for review of an opinion or order in limited

circumstances. Under Rule 60, the Fraenkels argue that this Court’s decision on remand is

“void” because it violates the mandate from the Circuit directing this Court to reconsider the

solatium damages awards, taking the Flatow factors into account and without considering

impermissible factors. According to the logic of this argument, the Circuit opinion constituted a

“mandate”; that “mandate” required solatium damages to the Fraenkels that are comparable to

those awarded in Flatow; the failure to do so violated the “mandate”; and the awards on remand

are, therefore, void. This Court disagrees. As noted above, the Circuit declined to require this

Court to award particular damages awards; to the contrary, it specified that “the trial judge has

discretion in determining solatium damages.” Fraenkel III, 892 F.3d at 361. The Court has

complied with the Circuit’s opinion and will, therefore, deny the motion to reconsider.




                                                 8
                                    IV. CONCLUSION

              For the foregoing reasons, the Court will deny Plaintiffs’ Motion to Amend or

Alter the Judgment and for Reconsideration of the Amount of Solatium Damages Awarded, Dkt.

54. A memorializing order accompanies this Memorandum Opinion.


Date: July 30, 2018                                              /s/
                                                  ROSEMARY M. COLLYER
                                                  United States District Judge




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