Choice of Law in Terrorism Cases

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The U.S. District Court for the District of Columbia (DDC) is routinely called upon to adjudicate civil cases where plaintiffs bring claims against foreign sovereigns on behalf of themselves or relatives who were killed or injured in terrorist attacks overseas. If the plaintiff is neither a U.S. national, a U.S. servicemember, a U.S. government employee, or an individual performing a contract awarded by the United States Government, the DDC must apply the choice-of-law rules followed by the District of Columbia to determine what law governs the claim. In a string of decisions, the DDC has held that these claims are governed by the tort laws of the District of Columbia. In this post, I take issue with this choice-of-law analysis and argue that, in some cases, the application of D.C. law is unconstitutional.

Choice of Law in the District of Columbia

The choice-of-law rules followed by the District of Columbia first ask whether there is a conflict between the laws of the forum (the District of Columbia) and other jurisdictions with a potential interest in the suit. If there is no conflict of laws, then there is no need to perform a choice-of-law analysis.

If there is a conflict, the courts in the District of Columbia will apply a choice-of-law approach that blends governmental interest analysis with the most significant relationship test. Governmental interest analysis requires the court to determine which interested jurisdiction’s policy would be most advanced by having its law applied to the facts of a particular case. The most significant relationship test requires the court to consider (1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (4) the place where the relationship, if any, between the parties is centered.

Hammons v. Islamic Republic of Iran

In Hammons v. Islamic Republic of Iran, decided in July 2023, the plaintiffs were relatives of private security contractors working with the U.S. military in Afghanistan who were injured when a truck exploded next to a residential complex in Kabul.  The plaintiffs sued Iran in the DDC. Iran did not enter an appearance and the plaintiffs moved for a default judgment. Although federal law provides a federal cause of action for certain individuals who are the victims of state-sponsored terrorism, this cause of action is not available unless one is a U.S. national, a U.S. servicemember, a U.S. government employee, or an individual performing a contract awarded by the United States Government. One of the plaintiffs in Hammons fell into none of these categories. Accordingly, Magistrate Judge Robin M. Meriweather had to perform a choice-of-law analysis under the laws of the District of Columbia to determine the law that governed that plaintiff’s claim.

Judge Meriweather identified three possible jurisdictions whose law might apply: (1) Afghanistan, the place where the tort was committed, (2) Texas, the domicile of the non-citizen plaintiff, or (3) the District of Columbia, the forum. The court held that it was impossible to apply Afghanistan law on these facts because “the collapse of the Afghan government and the rise of the Taliban as the de facto government casts doubt on whether the rule of law continues to exist in Afghanistan, making it unlikely that an expert could opine on whether Afghan law recognizes a tort analogous to [intentional infliction of emotional distress] that would be available to the domestic partner of a victim of a terrorist attack.”

Having taken the law of Afghanistan off the table, the court then had to choose between Texas and DC. It chose the latter for two reasons. First, it reasoned that the United States had an interest in applying “the law of the seat of the federal government in a case involving an overseas attack on the United States.” Second, it held that the District of Columbia had an interest in applying its law because this would promote “uniformity in the application of tort law to claims raised by foreign-national family members of American victims of terrorist attacks.” Neither of these conclusions is persuasive from a choice-of-law perspective.

A Critique

The Seat of Government Argument

There can be no doubt that the U.S. government has an interest in applying federal law in cases involving attacks on U.S. personnel overseas. It is not at all clear, however, that the government of the District of Columbia has an interest in applying its law to these cases. The government of the District of Columbia is separate and distinct from the government of the United States. A terrorist attack on private security contractors working for the U.S. military in Afghanistan can reasonably be viewed as an attack on the U.S. government. It cannot reasonably be viewed as an attack on the government of the District of Columbia.

The DDC has itself previously recognized that the District of Columbia lacks an interest in applying its law in these types of cases. In Holland v. Islamic Republic of Iran (2005), the relatives of a U.S. marine killed by a terrorist attack in Lebanon brought a lawsuit against Iran. The court applied the same choice-of-law rules discussed above but concluded that the District of Columbia had no interest in applying its laws to this suit because the attack occurred outside of the District of Columbia and because neither the plaintiffs nor the defendants had any connection to the District. In Hammons, the court reached a different conclusion on similar facts.

The Uniformity Argument

The notion that the District of Columbia has an interest in applying its law to terrorism cases because this will promote “uniformity” in the treatment of these claims is similarly unpersuasive. Under governmental interest analysis, a government has an interest in applying its law when this will advance the interests of a domiciliary. The non-citizen plaintiff in Hammons was not domiciled in the District of Columbia. She was domiciled in Texas. The fact that prior courts in the District of Columbia have applied DC tort law to cases relating to international terrorism does not give the District of Columbia a “uniformity” interest in applying its law to similar cases.

Indeed, the DDC has itself previously endorsed the proposition that uniformity is not enough to create a governmental interest for the District of Columbia. In Wyatt v. Syrian Arab Republic (2005), it stated that “[t]he application of the law of the District of Columbia, like the uniform application of federal common law, cannot be justified under § 1605(a)(7) on the grounds of an interest in uniformity.” I am aware of no cases decided outside of the District of Columbia where a court engaged in governmental interest analysis has concluded that a desire for uniformity in the law applied across multiple cases created a governmental interest. In Hammons, again, the court reached a different conclusion.

The FSIA Amendments Argument

Although the Hammons decision did not explain why the DDC now endorses the seat of government argument and the uniformity argument after having previously rejected both, other DDC decisions point to amendments to the FSIA approved by Congress in 2008. In Estate of Doe v. Islamic Republic of Iran (2011), the DDC observed that these amendments — as codified at 28 U.S.C. § 1605A — sought to “correct the problem of disparity among the various state laws regarding the recovery of emotional distress by immediate family members.” While the court acknowledged that Congress had not created a federal cause of actions for plaintiffs lacking a strong connection to the United States, it reasoned that the underlying purpose of the FSIA amendments was to promote “uniformity” and that this purpose “served to increase the interest in applying District of Columbia substantive law” in cases involving non-U.S. plaintiffs. Subsequent cases have invoked similar reasoning to justify the application of D.C. law in terrorism cases.

This justification is weak. To the extent Congress sought to achieve uniformity in this area of law, it did so by enacting a federal law that applied uniformly across the nation. The enactment of this amendment cannot be fairly read to authorize the DDC to apply the tort law of the District of Columbia to each and every terrorism case that it sees. To the extent that the DDC has invoked the 2008 FSIA amendments as a basis for concluding that the District has an interest in developing a uniform law in this area, this argument lacks a solid basis in the text of those amendments.

Other Problems

There are two other problems with the DDC’s approach to choice of law in terrorism cases involving non-U.S. citizen plaintiffs. First, the court completely ignores the most significant relationship test that is an essential component of the District’s choice-of-law rules. That test directs the court to look to the domicile of the plaintiff, the domicile of the defendant, and the place where the harm occurred to identify the jurisdiction with the most significant relationship to the tort. This test will almost never lead to the application of D.C. law and the DDC typically ignores it in its decisions. When the DDC does engage with this test, it relies (again) on the penumbral effect of the 2008 amendments to the FSIA to justify the application of D.C. law notwithstanding the fact that the District typically lacks any relationship to the events giving rise to the tort.

Second, there is a plausible argument that applying D.C. law in some of these cases is unconstitutional. The U.S. Supreme Court has long recognized that “if a State has only an insignificant contact with the parties and the occurrence or transaction, application of its law is unconstitutional.” That Court has also stated that “for a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.” In cases like Hammons, where neither the plaintiff nor the victim nor the victim’s employer nor the defendant is domiciled in the District, and where the allegedly tortious conduct occurred overseas, there arises a serious question of whether applying the tort law of DC violates due process.

Conclusion

There are several explanations for the persistence of the questionable choice-of-law analysis utilized by the DDC in these cases. First, the defendants in many of these suits failed to appear. When a motion for a default judgment is unopposed, the plaintiff’s choice-of-law arguments will necessarily attract less scrutiny. Second, there is no obvious mechanism for the D.C. Court of Appeals—the functional equivalent of a state supreme court for the District of Columbia—to evaluate the correctness of this choice-of-law analysis because international terrorism cases are always filed in federal court. Any appeals will be heard by the D.C. Circuit — which lacks the power to make state law — rather than the D.C. Court of Appeals. Third, the tort law of the District of Columbia is familiar and easy for the DDC to research. None of these accounts serve to justify the practices described above. Viewed collectively, however, they help to explain the problematic choice-of-law analysis utilized by the DDC in terrorism cases.