17-4035-cv
Hoglan v. Rafsanjani


                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT
                                  SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 11th day of January, two thousand nineteen.
PRESENT: REENA RAGGI,
              GERARD E. LYNCH,
              CHRISTOPHER F. DRONEY,
                             Circuit Judges.
______________________________________________
ALICE HOGLAN, named in her own right as a personal
representative of the estate of Mark Kendall Bingham and
executrix of the estate of Herbert K. Hoglan, deceased,
A/K/A Alice Hoagland, et al.,

                            Plaintiffs-Appellants,

HERBERT HOGLAN, et al.,

                            Plaintiffs,

                       v.                                            No. 17-4035-cv

ALI AKBAR HASHEMI RAFSANJANI, et al.,

                            Defendants-Appellees,




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ISLAMIC REPUBLIC OF IRAN, et al.,

                      Defendants.
______________________________________________

 FOR PLAINTIFFS-APPELLANTS:                       Timothy B. Fleming, Wiggins Childs
                                                  Pantazis Fisher & Goldfarb PLLC,
                                                  Washington, D.C.

       Appeal from the June 20, 2017 and November 17, 2017 orders entered by the United
States District Court for the Southern District of New York (Daniels, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the June 20, 2017 and November 17, 2017 orders are AFFIRMED.

       This appeal arises from an action brought against the Islamic Republic of Iran
(“Iran”) and its agents and instrumentalities (together, “the Iranian Defendants”) by the
estates and family members of victims of the September 11, 2001 terrorist attacks. See
Hoglan v. Islamic Republic of Iran, 11-cv-7550-GBD (S.D.N.Y.). This action seeks to
hold the Iranian Defendants liable for their role in the September 11 attacks pursuant to the
“terrorism exception” to the Foreign Sovereign Immunities Act of 1976 (“FSIA”), 28
U.S.C. § 1605A. After the district court entered judgment as to liability against the
Iranian Defendants, the plaintiffs sought individual awards of damages. Plaintiffs-
Appellants appeal the district court’s rulings that they were ineligible to recover damages
under the FSIA terrorism exception because each Plaintiff-Appellant’s deceased family
member was (1) not a national of the United States, or (2) not the claimant’s immediate
family member.

I.     Background

       The plaintiffs in the underlying action include fifteen estates of individuals who died
in the September 11 attacks and their 278 individual family members (together, the
“Hoglan Plaintiffs”).       Plaintiffs-Appellants comprise two subsets of this group:
individuals who claim to be the “functional equivalent” of immediate family members of
various decedents (the “Non-Immediate Family Plaintiffs”) and the estates and immediate
family members of two decedents, Nicholas Rowe and Hagay Shefi, who were not citizens
of the United States when they died (the “Shefi and Rowe Plaintiffs”).




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        The Hoglan Plaintiffs sued the Iranian Defendants pursuant to the terrorism
exception to the FSIA, 28 U.S.C. § 1605A, alleging that the Iranian Defendants provided
material support to the Al Qaeda terrorist network for the September 11 attacks and were
thus liable for the decedents’ deaths. As in other similar actions, the Iranian Defendants
failed to appear and defend this action. In a related action by different plaintiffs against
the same defendants, Havlish v. Bin Laden, No. 03-cv-9848-GBD (S.D.N.Y.), the district
court held an evidentiary hearing and concluded that the Iranian Defendants had furnished
material support to Al Qaeda and that their support was reasonably connected to the
September 11 attacks. The record from that hearing was fully incorporated into the
present case, and on that basis, on August 31, 2015, the district court entered default
judgment against the Iranian Defendants for their liability to the Hoglan Plaintiffs.

        Thereafter, the Hoglan Plaintiffs moved for an award of damages. The district
court referred that motion to United States Magistrate Judge Sarah Netburn for a
calculation of damages.        Magistrate Judge Netburn issued four Reports and
Recommendations (“R&Rs”) discussing the two issues now on appeal: the eligibility of
various non-immediate family members of decedents to recover solatium damages, and the
eligibility of Shefi’s and Rowe’s estates and family members to recover damages even
though Shefi and Rowe were not citizens of the United States.

       A.     R&Rs Regarding the Non-Immediate Family Members

       Magistrate Judge Netburn issued an R&R on October 12, 2016 (the “October 12
R&R”). This R&R established a framework for awarding solatium damages, that is,
damages for “the mental anguish, bereavement, and grief that those with a close
relationship to the decedent experience as a result of the decedent’s death, as well as the
harm caused by the loss of the decedent’s society and comfort.” App’x at 12 (quoting
Belkin v. Islamic Republic of Iran, 667 F. Supp. 2d 8, 22 (D.D.C. 2009)). The R&R
provided for monetary awards to the spouses, parents, children, and siblings of the
September 11 decedents. The district court adopted the October 12 R&R in its entirety,
and that order is not on appeal.

         Magistrate Judge Netburn issued a second R&R on October 14, 2016 (the “October
14 R&R”). This R&R adjudicated the claims for solatium damages of the seventy-nine
family members of decedents who were not the decedents’ “immediate family members,”
that is, their spouses, parents, children, or siblings. The magistrate judge limited recovery
to those plaintiffs whose relationships with the decedents were the “functional equivalent”
of immediate family members, based, in most cases, on the following factors: (1) “long-
term residence or co-habitation in the [family member’s] household;” (2) whether the

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claimant ever played “a guardian or custodian-like role in the decedent’s life” or vice-versa;
and (3) the presence or absence of the biological family member in the claimant’s life, for
whom the decedent was a functional equivalent. App’x at 36–38. Regarding fiancé(e)s
and same-sex domestic partners, the magistrate judge evaluated their functional
equivalence based on “the duration of the relationship, the degree of mutual financial
dependence and investments in a common life together, the duration of cohabitation and
the presence or absence of a formal engagement.” App’x at 40–41.

       Applying this framework to the particular individuals, the magistrate judge
recommended awarding solatium damages to thirteen claimants who had been the
stepchildren, stepparents, stepsiblings, grandparents, domestic partners, and fiancées of
various decedents. The magistrate judge recommended denying solatium claims to the
other sixty-six plaintiffs because they had not proven that their relationships to the
decedents were the functional equivalent of relationships to immediate family members.
This latter group comprises the Non-Immediate Family Plaintiffs.

       On August 8, 2017, Magistrate Judge Netburn issued another R&R (the “August 8
R&R”) considering the Non-Immediate Family Plaintiffs’ objections to the October 14
R&R. The magistrate judge reiterated and clarified the factors by which she would
determine functional equivalency, and applied those factors to each of the Non-Immediate
Family Plaintiffs who articulated substantial objections to the October 14 R&R’s denial of
their claims. The magistrate judge again recommended denying solatium damages to
each objector and to all plaintiffs who had not articulated specific objections.

      The district court adopted the August 8 R&R in its entirety on November 17, 2017,
denying solatium damages to all of the Non-Immediate Family Plaintiffs. Plaintiffs-
Appellants appeal this order.

       B.      R&R Regarding Shefi and Rowe

       Magistrate Judge Netburn also issued an R&R on October 24, 2016 (the “October
24 R&R”), considering, among other things, whether Shefi’s and Rowe’s estates and
family members were eligible for damages under the FSIA under the theory that Shefi and
Rowe, who were not citizens of the United States, were nevertheless “national[s] of the
United States” under 8 U.S.C. § 1101(a)(22)(B) and 28 U.S.C. § 1605A(a)(2)(A)(ii).
Shefi and Rowe Plaintiffs had argued that Shefi and Rowe were nationals of the United
States because they had manifested permanent allegiance to the United States by intending
to become United States citizens, and in Shefi’s case, by completing much of the



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naturalization process. 1 The R&R rejected the Shefi and Rowe Plaintiffs’ argument,
concluding that “national of the United States” refers only to “individuals born or ‘found’
in an ‘outlying possession’ of the United States or who were the children of such
individuals.” App’x at 95 (quoting Marquez-Almanzar v. I.N.S., 418 F.3d 210, 217 (2d
Cir. 2005)).

      The district court adopted the October 24 R&R in full on June 21, 2017. Plaintiffs-
Appellants also appeal the district court’s ruling that Shefi and Rowe were not nationals of
the United States.

II.     Discussion

        Under the FSIA, in general, “a foreign state shall be immune from the jurisdiction
of the courts of the United States.” 28 U.S.C. § 1604. However, the FSIA contains
certain exceptions. See 28 U.S.C. §§ 1605, 1607. If an exception applies, the foreign
state “shall be liable in the same manner and to the same extent as a private individual
under like circumstances,” except with respect to punitive damages. 28 U.S.C. § 1606.
As relevant here, the terrorism exception to the FSIA provides that United States courts
have jurisdiction over actions “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.” 28 U.S.C. § 1605A(a)(1).

       “The standard of review applicable to district court decisions regarding subject
matter jurisdiction under the FSIA is clear error for factual findings and de novo for legal
conclusions.” Robinson v. Gov’t of Malaysia, 269 F.3d 133, 138 (2d Cir. 2001) (internal
quotation marks omitted).

        A.      The Non-Immediate Family Plaintiffs’ Claims



1
   According to Plaintiffs-Appellants, Shefi, an Israeli citizen and lawful permanent resident of the United
States, had “already submitted a successful application for citizenship” and was undergoing a background
check when he was killed in the September 11 attacks. Appellants’ Br. at 7. Rowe, a South African
citizen and lawful permanent resident of the United States, wished to marry his U.S. citizen girlfriend and
live in the United States permanently, and intended to apply for citizenship when he became eligible, but
had not yet applied when he was killed in the attacks.

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    First, we consider Plaintiffs-Appellants’ argument that the Non-Immediate Family
Members were wrongfully denied solatium damages.

       The FSIA’s terrorism exception explicitly provides certain plaintiffs with a private
right of action “for personal injury or death caused by” the terrorist acts listed in 28 U.S.C.
§ 1605A(a)(1). 28 U.S.C. § 1605A(c). The statute creating the right of action
specifically provides that solatium damages are available. Id.

        In setting forth its suggested framework for solatium damages, the October 14 R&R
relied on precedent from the United States Court of Appeals for the District of Columbia
Circuit to determine that solatium damages are available only to the decedents’ immediate
family members and the functional equivalent of immediate family members. App’x at
30–32 (citing Bettis v. Islamic Republic of Iran, 315 F.3d 325 (D.C. Cir. 2003)). In Bettis,
the D.C. Circuit found that courts should look to state common law to define the class of
plaintiffs for whom solatium damages are available, reasoning that the FSIA terrorism
exception provides for the foreign state sponsor of terrorism to be “liable in the same
manner and to the same extent as a private individual under like circumstances,” and thus
instructs courts to “find the relevant law, not to make” federal common law. Bettis, 315
F.3d at 333 (quoting 28 U.S.C. § 1606). The court in Bettis relied on the discussion of
common law intentional infliction of emotional distress in the Restatement (Second) of
Torts to determine which classes of family members may recover solatium damages in an
FSIA terrorism case. Id. at 333–38.

        We need not decide whether the analytical framework employed in the D.C. Circuit
is correct, because Plaintiffs-Appellants do not challenge the district court’s determination
that recovery for solatium damages in FSIA terrorism cases is limited to immediate family
members or their functional equivalents. Nor do they appear to challenge the factors the
district court applied to determine that none of the Non-Immediate Family Plaintiffs were
not functionally equivalent to immediate family members. 2 Thus, we assume for

2
  Plaintiffs-Appellants do advocate for a broad interpretation of “immediate family member,” citing a
number of sources in which “immediate family member” was defined to include more than spouses, parents,
children, and siblings. However, their cited sources are largely irrelevant to the availability of solatium
damages for intentional infliction of emotional distress at common law, or indeed to common law at all.
Rather, Plaintiffs-Appellants cite statutes and regulations that expressly define the term “immediate
family,” see, e.g., 18 U.S.C. § 115 (prohibiting threatening a federal official’s immediate family, including
in loco parentis relationships and persons living in the household and related to the official by blood or
marriage), or cases interpreting statutes with express definitions, see, e.g., 611 E. 179th St. Realty Corp. v.
Gonzalez, 55 Misc.3d 1225(A), 61 N.Y.S.3d 193 (N.Y. Civ. Ct. Bronx Cty. 2017) (discussing definition of
“family member” under Section 2520.6(o)(1) of the Rent Stabilization Code, which includes grand- and


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purposes of this appeal that, under the FSIA terrorism exception’s private cause of action,
solatium damages are available only to a terrorism victim’s immediate family members or
their functional equivalents.

       Rather, the Plaintiffs-Appellants claim “the district court err[ed] in determining that,
under the test employed by the district court, certain non-immediate family members were
not functional equivalents of immediate family members to U.S. citizens.” Appellants’
Br. at 2 (emphasis added); see also id. at 10 (“Plaintiffs-Appellants do not disagree [with
the district court’s recognition that a claim-by-claim, family-by-family determination was
required] but contend the court did not fully embrace such an analysis.”).

        We disagree. Plaintiffs-Appellants identify only a few of the Non-Immediate
Family Plaintiffs whom they claim the district court erroneously determined were not the
functional equivalent of immediate family members. In the August 8 R&R, Magistrate
Judge Netburn conducted a claimant-by-claimant, fact-driven analysis applying the factors
listed in the October 14 R&R to determine that each of these claimants was not functionally
equivalent to an immediate family member, and the district court adopted this
determination. Plaintiffs-Appellants do not explain why this analysis was clearly
erroneous as to any claimant, and having reviewed the August 8 R&R and the court’s order
adopting it, we find no clear error in any of these factual determinations.

       B.      The Shefi and Rowe Plaintiffs’ Claims

       Next, we consider Plaintiffs-Appellants’ argument that Shefi and Rowe were
“nationals of the United States” for purposes of the FSIA.

       The FSIA’s terrorism exception extends only to cases in which “the claimant or the
victim was, at the time” of the terrorist act either “(I) a national of the United States; (II) a
member of the armed forces; or” (III) a U.S. government employee or contractor acting
within the scope of his or her employment. 28 U.S.C. § 1605A(a)(2)(A)(ii). In
§ 1605A(h)(5), the FSIA expressly provides that “the term ‘national of the United States’
has the meaning given that term in section 1101(a)(22) of the Immigration and Nationality
Act,” to wit: “(A) a citizen of the United States or (B) a person who, though not a citizen
of the United States, owes permanent allegiance to the United States,” 8 U.S.C. §
1101(a)(22).


step-parents and children, and in-laws). Thus, we are unpersuaded that a more expansive definition of
“immediate family member” is evident at common law or warranted under the Bettis framework that the
district court applied.

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       Plaintiffs-Appellants argue that Rowe’s desire to become a United States citizen and
Shefi’s affirmative steps toward that goal evinced “permanent allegiance,” § 1101(a)(22),
to the United States. Our decision in Marquez-Almanzar v. I.N.S., 418 F.3d 210 (2d Cir.
2005), forecloses this argument. In Marquez-Almanzar, a non-citizen sought to avoid
removal from the United States by contending he was a national of the United States within
the meaning of 8 U.S.C. § 1101(a)(22) because his military service, application for
naturalization, and other connections to American society evinced permanent allegiance to
the United States. Id. We rejected this argument, holding that “one cannot qualify as a
U.S. national under 8 U.S.C. § 1101(a)(22)(B) by a manifestation of ‘permanent allegiance’
to the United States.” Id. at 218–19. We reasoned that “permanent allegiance” is used
in § 1101(a)(22) to describe “the nature of the relationship between non-citizen nationals
and the United States . . . created by another statutory provision” in the United States Code,
not to provide “a means by which one may obtain that status.”3 Id. at 217–18. The
language of § 1101(a)(22) makes this point plain: it refers not to one who subjectively
“feels” or objectively “manifests” his allegiance to the United States, but rather to one who
“owes” such allegiance—it is a matter of legal status rather than of felt or manifested
loyalty.

       Thus, Shefi and Rowe could not have become nationals of the United States, as
defined in 8 U.S.C. § 1101(a)(22), by manifesting permanent allegiance to the United
States through their efforts to become citizens. Because the FSIA terrorism exception
defines “national of the United States” by reference to § 1101(a)(22), see 28 U.S.C.
§ 1605A(h)(5), they are not nationals of the United States so as to allow their estates and
non-citizen family members to avail themselves of the FSIA terrorism exception. Thus,
the district court properly denied the Shefi and Rowe Plaintiffs’ claims.4



3
  As an example of a statutory provision, we cited 8 U.S.C. § 1408, see Marquez-Almanzar, 418 F.3d at
217, which provides several ways by which one becomes a non-citizen national at birth, all involving being
born or “found” in an “outlying possession” of the United States or having non-citizen national parents.
8 U.S.C. § 1408. Outlying possessions of the United States include American Samoa and Swains Island.
8 U.S.C. § 1101(a)(29).
4
   Plaintiffs-Appellants argue primarily that Marquez-Almanzar was incorrectly decided, or else should not
be extended to the FSIA context. We are bound by our ruling in Marquez-Almanzar, “unless and until its
rationale is overruled, implicitly or expressly, by the Supreme Court or this court en banc.” See Nicholas
v. Goord, 430 F.3d 652, 659 (2d Cir. 2005) (internal quotation marks omitted). Moreover, we see no reason
why our interpretation of 8 U.S.C. § 1101(a)(22) would not apply equally in the FSIA context. See
Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 14–15 (D.C. Cir. 2015) (holding that non-citizens
could not become “nationals of the United States” for the purposes of the FSIA terrorism exception by
manifesting permanent allegiance through their actions).

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                                       * * *
       We have considered Plaintiffs-Appellants’ remaining arguments and conclude that
they lack merit. Accordingly, we AFFIRM the orders of the district court.

                                 FOR THE COURT:
                                 Catherine O’Hagan Wolfe, Clerk of Court




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