More Choice of Law in Terrorism Cases

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The U.S. District Court for the District of Columbia (DDC) hears a lot of state-sponsored terrorism cases. The plaintiffs in these cases typically assert a cause of action under 28 U.S.C. § 1605A(c). This action is, however, only available to individuals who are either (1) a U.S. national, (2) a U.S. servicemember, (3) a U.S. government employee, or (4) a U.S. government contractor. If a plaintiff is none of those things, he or she lacks a federal cause of action.

In these circumstances, the plaintiff may rely instead on state or foreign law to bring the suit. The question then becomes which jurisdiction’s law to apply. In a prior post, I discussed some DDC decisions where the court applied the choice-of-law rules of the District of Columbia to conclude that D.C. tort law governed claims in terrorism cases. I observed that these decisions were difficult to square with the fact that (1) the allegedly tortious conduct occurred overseas, and (2) all of the litigants lacked any meaningful connection with the District of Columbia.

In late 2023, the DDC handed down another decision, M.M. v. Islamic Republic of Iran, where it performed yet another choice-of-law analysis in yet another case involving state-sponsored terrorism. I am happy to report that the analysis in this case is quite convincing. The very strength of this analysis, however, raises additional questions about the soundness of the reasoning in prior cases.

M.M. v. Islamic Republic of Iran

In 2017, more than a hundred people were killed when terrorists set off a bomb near the U.S. Embassy in Afghanistan. The victims included eight Afghan security contractors working for the United States. The estates of these contractors, as well as the relatives of the deceased, believed that Iran was responsible for the blast because it had provided support to terrorist organizations responsible for the attack. They brought a suit against Iran in the DDC (Judge Trevor McFadden). Iran never responded and the plaintiffs moved for a default judgment. Under 28 U.S.C. § 1608(e), a U.S. court may only grant a default against a foreign sovereign if the “claimant establishes his claim or right to relief by evidence satisfactory to the court.”

The court reasoned that the estates had a valid federal cause of action under 28 U.S.C. § 1605A(c) because the decedents were all U.S. government contractors. The relatives, however, had to rely on state or foreign law to establish a cause of action because they were citizens of Afghanistan who were not employed by the U.S. government. The question presented was whether the claims of intentional infliction of emotional distress brought by the relatives were governed by the laws of the place of the attack (Afghanistan) or by the laws of the forum (District of Columbia). To resolve this question, the court turned to the choice-of-law rules of the District of Columbia.

These choice-of-law rules meld a “governmental interest analysis” with a “most significant relationship test.” The governmental interest analysis requires the court to evaluate the governmental policies underlying the laws in question and to determine which jurisdiction’s policy would be most advanced by having its law applied to the case. The most significant relationship test requires the court to consider four listed contacts from the Restatement (Second) of Conflict of Laws: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the parties’ domicile, residence, and nationality; and (4) the place where the relationship, if any, between the parties is centered.

The court first observed that Afghanistan had a governmental interest in protecting its citizens against terrorist attacks. It then observed the United States had a governmental interest in protecting its contractors. It concluded that neither state’s interest in applying its law was markedly stronger than the other. With respect to the most significant relationship test, the court concluded that the contacts cut decisively in favor of applying Afghan law. The injuries occurred in Afghanistan. The conduct causing the injuries occurred in Afghanistan. The plaintiffs were domiciled in Afghanistan. And the relationship between the plaintiffs and the Iran was centered on Afghanistan. The court also observed that even if the relatives “could show that the United States had some overwhelming interest in this case, they would still have to show which jurisdiction’s common law provides the rule of decision. And on this record, the Relatives have not shown why the District has a stronger interest than, say, Arkansas or Alaska.”

After concluding that the matter was governed by the tort law of Afghanistan, the court considered whether the relatives had stated a valid cause of action under that law. The court relied upon an expert report submitted by Professor Rohullah Azizi, a graduate of Kabul University, to conclude that the law of Afghanistan permitted the relatives to recover damages against Iran. Accordingly, the court entered a default judgment in favor of the relatives.

Hammons Compared

The choice-of-law analysis in M.M. is thoughtful, comprehensive, and (in my view) clearly correct. The rigorous analysis in this case, however, throws a less-than-flattering light on the choice-of-law analyses in previous cases decided by the DDC involving claims against Iran. One of these cases is Hammons v. Islamic Republic of Iran.

In Hammons, the DDC (Magistrate Judge Robin M. Meriwether) had to determine what tort law governed another claim against Iran. In 2016, a U.S. citizen domiciled in Texas who was working as a private contractor in Afghanistan suffered injuries as a result of terrorist bombing. His long-term partner—a non-U.S. citizen domiciled in Texas—brought a claim for intentional infliction of emotional distress against Iran in the DDC. Because the long-term partner was ineligible to bring a suit under 28 U.S.C. 1605A(c), the court had to perform a choice-of-law analysis under the law of the District of Columbia.

After performing this analysis, the Hammons court concluded that D.C. tort law governed a claim asserted by the non-U.S. citizen domiciled in Texas against the Islamic Republic of Iran for a terrorist attack that occurred in Afghanistan. The court reasoned that the District of Columbia had a stronger interest in applying its law on the facts presented because (1) it was the seat of the U.S. government, (2) the case involved terrorism, and (3) applying D.C. law would promote consistency and predictability. There are problems with each of these arguments.

First, the fact that the District of Columbia is the seat of the U.S. government does not give the District an interest in applying its tort law to any and all cases where the long-term partner of a U.S. government employee or contractor claims injury due to harm suffered by the employee while working for the United States. If it did, then one would expect to see a bevy of cases where D.C. tort law was applied to cases involving long-term partners. Notwithstanding diligent research, I have been unable to locate any such cases.

Second, the fact that the case involved terrorism does not give the government of the District of Columbia—as distinct from the government of the United States—an interest in applying its tort law. Terrorists operating abroad are not targeting the District of Columbia. They are targeting the United States of America.

Third, the fact that applying D.C. tort law to terrorism cases will promote consistency and predictability overlooks the fact that Congress has enacted a statute—28 U.S.C. § 1605A(c)—that creates a nationwide private right of action. Congress specifically chose not to make this cause of action available to certain persons. This drafting decision calls into question whether the District of Columbia truly has an interest in unilaterally applying its tort law to ensure uniformity in treatment for victims who lack a federal cause of action.

The court’s analysis in Hammons also fails to engage with the “most significant relationship” part of the choice-of-law analysis. The place where the injury occurred was Afghanistan. The place where the conduct causing the injury occurred in Afghanistan. The plaintiff was a non-U.S. citizen domiciled in Texas; the defendant was the government of Iran. The place where the relationship between the parties is centered was Afghanistan. In light of these facts, it is difficult to understand how the court could have concluded that the District of Columbia had the “most significant” relationship to the dispute when, in fact, it seems to have no relationship at all.

In light of this fact, there is a plausible 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.” 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 is consistent with due process.


When read together, M.M. and Hammons suggest that the DDC has adopted the following choice-of-law rule for terrorism claims brought by plaintiffs ineligible to bring a federal cause of action under 28 U.S.C. 1605A(c): (1) If the plaintiff is domiciled in the United States, apply the tort law of the District of Columbia (Hammons); (2) if the plaintiff is domiciled abroad, apply the law of the place of the tort (M.M.). The first half of this rule rests on a shaky foundation that the DDC would do well to revisit. The problem is that these judgments are almost always entered as defaults. Unless and until states named as defendants in terrorism cases show up, the DDC is unlikely to have occasion to grapple with the choice-of-law issues identified above.