Choice-of-Law in Terrorism Cases Redux

Image by David Mark from Pixabay

On September 16, 2024, the U.S. District Court for the District of Columbia (Senior Judge Richard J. Leon) decided Messina v. Syrian Arab Republic. This case is the latest in a long series brought by victims of state-sponsored terrorism in the District of Columbia. In a pair of prior posts, I argued that the courts’ decisions to apply the substantive law of the District of Columbia to tort claims brought by foreign nationals in such cases may well be unconstitutional. I am sorry to report that the court’s decision in Messina is subject to the same critique.

In March 2005, terrorists attacked the Al Sadeer Hotel in Baghdad, Iraq. A U.S. government contractor by the name of Louis Messina—a dual citizen of South Africa and Italy—suffered serious injuries. Louis subsequently brought a private right of action against Syria in federal court in the District of Columbia pursuant to 28 U.S.C. § 1605A(c). His wife, Angelique, brought a parallel cause of action for intentional infliction of emotion distress. Because Angelique was neither a U.S. citizen nor a member of the U.S. military nor a U.S. contractor—like her husband, she is a dual citizen of South Africa and Italy—she was not eligible to bring a federal cause of action. Instead, the district court had to apply the choice-of-law rules of the District of Columbia to determine the law that governs her claim.

The courts in the District of Columbia 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.

On the facts presented in Messina, the alleged injury—intentional infliction of emotional distress—occurred in either Iraq, Italy, or South Africa. The place where the conduct causing the injury occurred was Iraq. Angelique was a resident of Italy or South Africa. The only connection between the events giving rise to her lawsuit and the District of Columbia was the fact that the suit was brought in the District. And yet that was enough for the district court to conclude that the substantive tort law of the District governs her claim. The relevant language in the court’s decision is reproduced below:

To adjudicate the[] claims for intentional infliction of emotion distress, the Court must select between the law of the forum (D.C.); the place of the tort (Iraq); and plaintiffs’ domicile countries (South Africa or Italy). . . . The law of the forum governs, unless the foreign state has a greater interest in the controversy. While Iraq (as situs of the harm) and South Africa and Italy (for concerns of their citizens) each have an interest in the controversy, neither interest is greater than this country and forum’s interests in addressing state-sponsored terrorism directed toward U.S. nationals, interests, and agents. Applying D.C. law is also consistent with the FSIA’s amendments to promote uniformity and extend access to U.S. federal courts to foreign national immediate family members of victims of terrorism.

This choice-of-law analysis is unpersuasive for three reasons.

First, 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 a U.S. government contractor in Iraq 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 legal justification for applying the tort law of the District to a case brought by a foreign national against a foreign sovereign with respect to torts committed abroad is difficult to discern.

Second, Congress sought to achieve uniformity under the FSIA by creating a private right of action for U.S. nationals, members of the U.S. military, and U.S. contractors that applied across the United States. The plaintiff in Messina was none of these. Although the court invoked the amendments to FSIA in 2008 as a basis for concluding that the District has an interest in developing a uniform law in this area, nothing in those amendments purports to direct federal courts sitting in the District of Columbia to apply D.C. tort law to all claims brought by foreign nationals against state sponsors of terrorism in U.S. court.

Third, there is a compelling argument that applying D.C. tort law on these facts 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.” The 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 Messina, where neither the plaintiff nor the defendant is domiciled in the District, and where the allegedly tortious conduct occurred overseas, there is a serious question of whether applying D.C. tort law is consistent with due process.