Israeli Terror Victims May Sue Iran in US Court

CHICAGO (CN) - An Israeli family attacked by terrorists while driving on an Israeli highway may sue the government of Iran for damages under the Foreign Sovereign Immunities Act, the 7th Circuit ruled.

The decision means non-U.S. citizens can pursue emotional distress claims under federal law.

In June 2003 members of the Leibovitch family were driving along a highway near the town of Kalkilya when members the Palestine Islamic Jihad crossed the West Bank border and fired on the family's minivan.

The Leibovitch's seven-year-old child, an Israeli national known as N.L. in court documents, was killed. Her three-year-old sister S.L. survived gunshot wounds to her right wrist and torso. The girls' grandparents and two other siblings were also in the vehicle but were not injured.

The family filed suit in 2008, seeking damages from the government of Iran on behalf of the family members in the van and the parents.

U.S. District Judge Williams Hart found Iran to have sponsored the attack and awarded S.L. $52.5 million in damages for post-traumatic stress, loss of solatium, and permanent disability.

Hart dismissed claims of all other family members, however, determining that the Foreign Sovereign Immunities Act barred recovery since none of the surviving Leibovitchs' were U.S. citizens.

But a three-judge panel of the 7th Circuit reversed the ruling.

Writing for the court, Judge Ann Claire Williams noted that "the trial court was correct that the foreign national family members cannot pursue a claim for personal injuries" under U.S. law.

But the Leibovitchs can still seek relief, the court ruled, because of the "pass-through" provision which allows a cause of action based on the underlying state or foreign law when an exception to sovereign immunity applies.

"The legislative history suggests that § 1605A(c) was intended to extend punitive damages to foreign nations sponsoring terrorism and thereby allow the massive liability judgments the original drafters hoped would deter state support for terrorism. Rejecting jurisdiction over claims brought by foreign national family members would be at odds with Congress's goal of expanding the liability of state sponsors of terrorism," Williams wrote.

Despite the favorable ruling for the Leibovitchs, Williams questioned the wisdom of "combating international terrorism through private civil suits" under FSIA's statutory scheme.

Because terrorism involves a broad range of foreign policy considerations, many commentators have argued that the political branches must address the matter as opposed to a broad range of courts and judges adjudicating competing cases and controversies," she noted.

"Whatever the merits of this debate, we are obliged to focus on statutory text and congressional intent and we do not find evidence to support the conclusion that Congress intended to foreclose claims by noncitizen family members when it enacted § 1605A(c)."

Finally, Hart also erred in his assumption that Israeli law would not support a private cause of action for the Leibovitch family.

Our concern is that a court may not presume hypothetical jurisdiction in order to decide a question on the merits. ... Therefore, we vacate the district court's hypothetical determination and remand for reconsideration of the emotional distress claims," Williams concluded.

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