                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 CHARLES STRANGE, et al,

             Plaintiffs,

        v.                                                Civil Action No. 14-435 (CKK)

 ISLAMIC REPUBLIC OF IRAN, et al,

             Defendants.


                                 MEMORANDUM OPINION
                                    (August 7, 2018)

       Plaintiffs in this case allege that Defendants—the Islamic Republic of Iran, Mahmoud

Ahmadinejad, Ayatollah Sayyid Ali Hoseyni Khamenei, the Army of the Guardians of the

Islamic Revolution, Hamid Karzai, the Afghan Operational Coordination Group (“OCG”), the

Afghan Special Operations Unit (“ASOU”), the Afghan National Security Forces (“ANSF”), the

Islamic Republic of Afghanistan (“Afghanistan”), the Taliban, and Al Qaeda—“purposefully,

knowingly, and negligently participated in the shoot-down or suicide bombing of a mission

named Extortion 17, which resulted in the death of thirty (30) U.S. servicemen.” Pls.’ Mem. in

Support of a Default Judgment, ECF No. 110, at 2. In summary form, Plaintiffs’ lawsuit alleges

that the Defendants listed above conspired together to shoot down (or, alternatively, to blow up

from the inside) a helicopter carrying United States service members, including Navy SEALS

who had recently participated in the mission to capture and kill Osama Bin Laden. Plaintiffs

claim that “these brave men died because they were set up by their supposed allies, the Afghan

government and its Security Forces, financed by Iran and its leaders, as has tragically occurred

hundreds of times before August 6, 2011 and many times since.” Id. at 1.


                                                1
       At the Court’s direction, Plaintiffs have submitted a brief on the exceptions that they

claim apply to the sovereign immunity of Defendants Afghanistan, OCG, ASOU and ANSF

(collectively, “Afghanistan” or “the Afghanistan Defendants”). See Pls.’ Supp. Briefing on the

Exceptions to the Afghan Defs.’ Foreign Sovereign Immunity, ECF No. 84 (“Pls.’ Brief”).

       The Court has considered Plaintiffs’ submission—as well as their prior and subsequent

pleadings in this case—and has determined that Plaintiffs have not established that this Court has

subject matter jurisdiction over Plaintiffs’ claims against the Afghanistan Defendants. Those

claims only will accordingly be DISMISSED WITH PREJUDICE.

                                     I. LEGAL STANDARD

       This case implicates the Foreign Sovereign Immunities Act (“FSIA”). “The FSIA

provides a basis for asserting jurisdiction over foreign nations in the United States.” Price v.

Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002). Pursuant to the

FSIA, the Court has “original jurisdiction” over “nonjury civil action[s]” against foreign states

“without regard to amount in controversy” if the claims seek “relief in personam with respect to

which the foreign state is not entitled to immunity either under sections 1605–1607 of this title or

under any applicable international agreement.” 28 U.S.C. § 1330(a). “[A] foreign state is

presumptively immune from the jurisdiction of United States courts; unless a specified exception

applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.”

Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). Contrary to Plaintiffs’ contention that the

Court “should not make the arguments for terrorist Defendants,” Pls.’ Brief at 15, the Court has

an obligation to assure itself that it has subject matter jurisdiction even though Defendants have

not responded to Plaintiffs’ Complaint. “[E]ven if the foreign state does not enter an appearance




                                                  2
to assert an immunity defense, a District Court still must determine that immunity is unavailable

under the [FSIA].” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493 n.20 (1983).

                                         II. DISCUSSION

       Plaintiffs claim that two exceptions to the Afghanistan Defendants’ immunity apply.

First, they argue that the facts of this case fall under the FSIA’s “commercial activity exception.”

Second, they argue that the Afghanistan Defendants have waived their immunity. Neither

argument has merit.

A. Commercial Activity Exception

       First, the commercial activity exception does not apply here. That exception, as relevant

to Plaintiffs’ argument, states that “[a] foreign state shall not be immune from the jurisdiction of

courts of the United States or of the States in any case in which the action is based . . . upon an

act outside the territory of the United States in connection with a commercial activity of the

foreign state elsewhere and that act causes a direct effect in the United States.” 28 U.S.C. §

1605(a)(2). Plaintiffs have not established that this case is based upon an act that is “in

connection with” a “commercial” activity.

       Plaintiffs argument for application of the commercial activity exception can be

summarized as follows: Plaintiffs contend that “Defendants Afghanistan, the OCG, ANSF, and

ASOU, engage in commercial activity with the United States” because of the “United States-

Afghanistan Trade Investment Framework Agreement (‘TIFA’).” Pls.’ Brief at 8. Plaintiffs

explain that TIFA has “acted as the primary forum for bilateral trade and investment discussions

between the two countries.” Id. Since the signing of TIFA, Plaintiffs state, “there has been a

significant increase in trade flows” between the United States and Afghanistan. Id. “[R]egular

meetings of the TIFA Council ensure the constant development of economic agreements



                                                  3
benefitting both” the United States and Afghanistan. Id. at 9. Plaintiffs recount that at a “TIFA

meeting,” the two countries issued a Joint Statement stating that they both sought to increase

investment in Afghanistan and both agreed on the importance of commercial investment laws

and regulations. Id. at 10-11. Based on the existence of TIFA, Plaintiffs argue that “[i]t cannot

be any clearer that the United States and Defendant Afghanistan are in a commercially

contractual relationship.” Id. at 11. And, Plaintiffs contend, “undoubtedly the commercial

nature of the United States’ and Afghanistan’s relationship, and the violations of those

commercial contracts, are directly felt here in the United States.” Id. at 14. “When the United

States agrees to spend $5.1 billion a year to pay for the army and police—and western donors

continue to give billions more for reconstruction and other initiatives in a private matter—the

premeditated, unprovoked attacks and murders on plaintiffs’ sons, using bullets, helicopters, and

machinery that the United States provides, is not only a nexus felt in the United States but also a

direct attack on the United States, plaintiffs’ sons, and its citizens.” Id.

        There are two major problems with this argument. First, two nations entering into a trade

and investment framework agreement is not a “commercial activity.” “[A] state engages in

commercial activity ‘where it exercises only those powers that can also be exercised by private

citizens, as distinct from those ‘powers peculiar to sovereigns.’” Janini v. Kuwait Univ., 43 F.3d

1534, 1537 (D.C. Cir. 1995) (quoting Nelson, 507 U.S. at 360 (internal quotation removed)).

“‘Put differently, a foreign state engages in commercial activity . . . only where it acts in the

manner of a private player within’ the market.’” Id. In deciding whether a state has acted like a

private player in the market as opposed to a sovereign, the Court “must examine ‘not whether the

foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely

sovereign objectives’ but ‘whether the particular actions that the foreign state performs (whatever



                                                   4
the motive behind them) are the type of actions by which a private party engages in trade and

traffic or commerce.’” de Csepel v. Republic of Hungary, 714 F.3d 591, 599 (D.C. Cir. 2013)

(quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992) (emphasis in

original)).

        The TIFA is a trade and investment framework agreed to by two sovereign nations. By

entering into that agreement, Afghanistan was not exercising powers that a “private player within

the market” could or would exercise. Private players in the market do not enter into agreements

to encourage positive relations and trade between two countries and foster positive environments

in those countries for growth and investment. This is something that sovereign nations do. In

fact, to enter into such an agreement inherently would require the exercise of state authority. See

Beg v. Islamic Republic of Pakistan, 353 F.3d 1323, 1326 (11th Cir. 2003) (“activities requiring

state authority are not commercial”).

        Plaintiffs cite a string of cases and congressional statements in their briefing for the

proposition that states act like private players in the market when they enter into contracts for

goods or services, even if the purpose of entering into those contracts is a public one (for

example, buying provisions for the state’s armed forces or leasing vehicles for the state’s mission

to the United Nations). See, e.g., Burnett v. Al Baraka Inv. & Dev. Corp., 292 F. Supp. 2d 9, 18

(D.D.C. 2003) (“a contract by a foreign government to buy provisions or equipment for its armed

forces or to construct a government building constitutes a commercial activity”). But these cases

are inapposite, because TIFA is not a contract for goods or services. TIFA might help foster the

growth of investment and trade which might result in contracts for goods or services being made,

but it is not itself such a contract. It is an agreement between two sovereign countries setting




                                                  5
forth a mutual understanding about trade and investment. This agreement is not analogous to the

sales, leases or other contracts that courts have found to constitute “commercial activity.”

       Plaintiffs also argue that the commercial activity exception applies because the United

States has helped develop and train the Afghan National Security Forces. Pls.’ Brief at 9-12.

They cite congressional reports and additional agreements between the United States and

Afghanistan in which the United States has committed to providing such assistance. Id. This

argument fares no better. Afghanistan does not engage in commercial activity like a “private

player in the market” by accepting foreign aid from the United States in the form of assistance in

developing its armed forces. The commitments from the United States discussed in Plaintiffs’

brief are not, as Plaintiffs seem to suggest, “contracts” Afghanistan has entered into for the

purchase of goods or services. They are pledges from one sovereign nation to help develop the

armed forces of another. That is not the type of activity that private players engage in.

       Second, even accepting Plaintiffs’ argument that any of the agreements or statements

discussed above could be interpreted as “commercial activity” on the part of Afghanistan, there

is simply no plausible way that this Court could say that Plaintiffs’ claims in this case are based

upon an act “in connection with” those commercial activities. The phrase “in connection with”

as used in the commercial activity exception “demands that the acts complained of must have

some substantive connection or a causal link to the commercial activity.” Azima v. RAK Inv.

Auth., 305 F. Supp. 3d 149 (D.D.C. 2018) (internal quotation omitted). “[A] mere tangential or

attenuated connection between the act and the commercial activity will not suffice.” Id.

       Plaintiffs make only a fleeting effort to demonstrate that a connection exists between the

acts complained of in this case, a terrorist attack, and the allegedly commercial activities cited.

They argue that the supposed commercial activities discussed above are connected to this case



                                                  6
because “[t]he United States has funded the Afghanistan military, OCG, and ASOU . . . and

Defendants, in turn, have used those funds to ambush and kill members of the U.S. military.”

Pls.’ Brief at 12.

        This alleged connection is simply too attenuated. Plaintiffs claim that this case is about

an act of terrorism. Their lawsuit is based on a terrorist attack: the shooting down (or,

alternatively, blowing up from the inside) of a helicopter carrying U.S. service members. It is

not about trade and investment agreements between the United States and Afghanistan, nor does

the United States’ general provision of support to the Afghanistan armed forces have any

substantial connection or causal link with the facts at issue. Accordingly, even assuming that the

activities Plaintiffs have highlighted in their pleadings could be viewed as “commercial,” the

commercial activity exception would still not apply because this case is not based upon an act in

connection with those activities.

B. Waiver

        Alternatively, Plaintiffs argue that Afghanistan has waived its immunity under the FSIA.

A foreign state is not immune in any case “in which the foreign state has waived its immunity

either explicitly or by implication, notwithstanding any withdrawal of the waiver which the

foreign state may purport to effect except in accordance with the terms of the waiver.” 28 U.S.C.

§ 1605(a)(1). Plaintiffs claim that Afghanistan implicitly waived its immunity through a

provision in the 2015 Security and Defense Cooperation Agreement (“SDCA”) between

Afghanistan and the United States. That provision reads:

                United States forces authorities shall pay just and reasonable
                compensation in settlement of meritorious third party claims arising
                out of acts or omissions of members of the force and of the civilian
                component done in the performance of their official duties and
                incident to the non-combat activities of United States forces. Such
                claims shall be expeditiously processed and settled by United States

                                                 7
                forces authorities in accordance with the laws and regulations of
                the United States and seriously considering the laws, customs, and
                traditions of Afghanistan.

See Pls.’ Brief at 4 (emphasis in original).

        This provision of the SDCA simply cannot be interpreted as an implied waiver of

Afghanistan’s sovereign immunity. The D.C. Circuit has noted that there is an “exacting

showing required for waivers of foreign sovereign immunity.” Odhiambo v. Republic of Kenya,

764 F.3d 31, 35 (D.C. Cir. 2014). An implied waiver in particular “depends upon the foreign

government’s having at some point indicated its amenability to suit.” Princz v. Fed. Republic of

Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994). Plaintiffs fall far short of making such an

exacting showing because the cited provision of the SDCA has nothing to do with suits brought

against Afghanistan. It only addresses claims that are brought against “United States forces.”

Because this provision of the SDCA does not even speak about claims against Afghanistan at all,

the Court certainly cannot say that it demonstrates Afghanistan’s amenability to being subjected

to suit in this country. See Odhiambo, 764 F.3d at 35 (quoting Argentine Republic v. Amerada

Hess Shipping Corp., 488 U.S. 428, 442 (1989)) (noting that the Supreme Court has explained

that “it cannot ‘see how a foreign state can waive its immunity under § 1605(a)(1) by signing an

international agreement that contains no mention of a waiver of immunity to suit in United States

courts.’”).

        Plaintiffs cite several district court cases for the proposition that “by selecting arbitration

or by making yourself available to the laws and regulations of another country, here the United

States, [a] contracting party is viewed to have waived its immunity.” Pls.’ Brief at 6. This line of

authority is irrelevant. Plaintiffs have not brought to the Court’s attention any agreement by

Afghanistan that envisions that suits against it would be adjudicated by arbitration or in United



                                                   8
States courts. Again, the provision of the SDCA relied on by Plaintiffs does not speak at all to

how claims against Afghanistan would be adjudicated.

                                      III. CONCLUSION

       In sum, Plaintiffs have not demonstrated that any exception to the Afghanistan

Defendants’ sovereign immunity applies. Accordingly, the Court lacks subject matter

jurisdiction over claims brought against those Defendants: the Afghan Operational Coordination

Group, the Afghan Special Operations Unit, the Afghan National Security Forces, and the

Islamic Republic of Afghanistan. Those claims only will be DISMISSED WITH PREJUDICE.

An appropriate Order accompanies this Memorandum Opinion.

                                                                  /s/
                                                             COLLEEN KOLLAR-KOTELLY
                                                             United States District Judge




                                                 9
