UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RITA BATHIARD et al. , Plaintiffs,

v. ISLAMIC REPUBLIC OF IRAN et al. ,
Defendants. Case No. 1:16-cv-1549 (CRC)

MEMORANDUM OPINION On April 18, 1983, a suicide bomber cr ashed a truck full of exp losives into the entrance of the U.S. Embassy in Beirut, L ebanon, setting off a blast tha t killed 52 people. Among those who died was Cesar Bathiard, a L ebanese citizen working at the Embassy. His widow and daughters have now brought suit agai nst the Islamic Republic of Iran under the Foreign Sovereign Immunities Act, alleging that Iran was responsible fo r the attack and Bathiard’s resulting death. Since Iran has not appeared, the Bathiards no w seek a default judgment. But because this suit was not filed within the applicable statute o f limitations, the Court will deny their motion and instead dismiss the case.

I. Background Cesar Bathiard worked at the U.S . Embassy in Beirut for a littl e over a decade. Mot. Default J. Aff. 1, ¶ 4 (Aff. for E state of Cesar Bathiard). In April 1983, he was employed by the Department of State as a driver for Robert S. Dillon, then the U.S. Ambassador to Lebanon. Id. On April 18, 1983, Bathiard was in t he lobby of the embassy, wa iting for Ambassador Dillon to come downstairs, when an explosives -laden truck crashed into th e building and detonated. Id. ¶ 5. He was killed instantly. Id.2 Over thirty years later, in A ugust 2016, Bathiard’s widow Marc elle El-Helou and his two daughters Rita Bathiard and Pascal e Mazarei (collectively “the Bathiards”) filed s uit on behalf of themselves and Cesar Bathiard’s es tate against the Islamic Repu blic of Iran and the Iranian Ministry of Information and Securi ty (collectively “Iran”). Th e Bathiards alleged that Iranian military and intelligence operatives financed and directed Hezb ollah, the militant group that carried out the embassy bombing. Compl. ¶¶ 6, 10. They claime d that Iran had “complete operational control” of Hezbolla h and provided high-level techn ical support and funding to Hezbollah without which the Apr il 1983 embassy bombing would no t have been possible. Id. ¶¶ 6–7. Their suit seeks to hold Ira n liable for injuries stem ming from Cesar Bathiard’s death under a provision in the Foreign S overeign Immunities Act (“FSI A”) that authorizes suits by U.S. citizens or employees and their families against foreign s overeigns who are state sponsors of terrorism for their involve ment in acts of terrorism, see 28 U.S.C. § 1605A. In September 2017, the Bathiards served Iran with process thro ugh diplomatic channels. When Iran failed to appear, the y obtained a notice of default o n November 29, 2017, and subsequently moved for a defau lt judgment. Prior to resolving their motion, however, the Court directed the parties to file s upplemental briefing addressing w hether this suit was timely under the applicable statute of limita tions. The Court now concludes that it was not.

II. Legal Standard The FSIA provides the sole basi s for obtaining jurisdiction ove r a foreign state in a United States court. The statute generally shields foreign sov ereigns from being haled into court, but carves out exceptions allowi ng certain kinds of lawsuits to proceed. See Bolivarian Republic of Venezuela v. Helmerich & P ayne Int’l Drilling Co., 137 S. Ct . 1312, 1320 (2017). One such exception greenlights lawsuits aga inst foreign co untries that h ave been designated by the U.S.3 government as a state sponsor of t errorism when the plaintiff s eeks money damages for personal injury or death resulting from the defendant country’s involvem ent in “an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or th e provision of material support or resources for such an act.” 28 U.S.C. § 1605A. As originally enacted in 1996, this provision applied solely to U.S. nationa ls; it was amended in 2008 to als o allow federal government employees who are not nationals t o bring suits for personal inj uries and deaths occurring while acting within the scope of their employment. See Sheikh v. Rep ublic of Sudan, 172 F. Supp. 3d 124, 126 (D.D.C. 2016). Under the FSIA, a plaintiff ma y obtain a default judgment when the defendant fails to enter an appearance. 28 U.S.C . § 1608(e); see also Fed. R. Civ . P. 55(b)(2). To prevail on such a motion, a plaintiff must establi sh her right to relief “by ev idence satisfactory to the court.” 28 U.S.C. § 1608(e). Thus, rather than accept unsupported allegat ions as true, the Court must examine the plaintiff’s alle gations and any proof provided to e nsure the plaintiff has carried her burden. See, e.g., Bluth v. Islamic Republic of Iran, 203 F. S upp. 3d 1, 17 (D.D.C. 2016).

III. Analysis The Court directed supplementa l briefing on the question of whe ther the Bathiards’ suit is timely under the FSIA. In their supplemental briefing, the Bat hiards argue tha t their suit is timely either (1) as an origi nal action brought within 10 years of the date their cause of action arose or (2) as an action rela ted to a timely-filed original ac tion involving the same bombing. See 28 U.S.C. § 1605A(b). The Court finds that their suit is n ot timely under either theory. Before addressing the arguments on timeliness, however, the Court will begin with a threshold4 argument raised by the Bathiards: whether it is proper for the Court to sua sponte consider whether they filed their suit within the statute of limitations

. 1
A. Consideration of the S tatute of Limitations The statute of limitations is typically an affirmative defense that is waived unless a defendant promptly raises it. S ee, e.g., Worley v. Islamic Rep ublic of Iran, 75 F. Supp. 3d 311, 328 (D.D.C. 2014). This principle ap plies to the statute of li mitations in the FSIA, which the D.C. Circuit has held is nonjur isdictional. See Owens v. Repub lic of Sudan, 864 F.3d 751, 801- 04 (D.C. Cir. 2017), petition for cert. filed (March 2, 2018). That said, the Supreme Court ha s recognized that in some situat ions “courts have the discretion, but not the obligati on, to raise on their own initi ative certain nonjuris dictional barriers to suit.” United Student A id Funds, Inc. v. Espinosa, 559 U.S. 260, 277 n.14 (2010); see also, e.g., Day v. McDonough, 547 U.S. 198, 199 (2006) (holding that “district courts are permitted, but not obliged, to consider, sua sponte , the timeliness of a state pr isoner’s habeas petition”). Such sua sponte consideration “might be appropriat e in special circumstances,” such as when a defense implicates interests beyond those of the parties. Ariz ona v. California, 530 U.S. 392, 412 (2000); see also United S tates v. Mitchell, 518 F.3d 740, 7 50 (10th Cir. 2008) (“[W]hen a rule implicates judicial inter ests beyond those of the parties, it may be appropriate for a court to invoke the rule sua sponte in order to protect those intere sts.”). The Court concludes that such

1 The Court need not address whethe r the Bathiards have establis hed that they meet the requirements to bring suit under the FSIA prior to addressing t he statute of limitations. The D.C. Circuit has held that whether a plaintiff has met the FSIA’s re quirements implicates the Court’s statutory jurisdiction, not its A rticle III jurisdiction. See Chalabi v. Hashemite Kingdom of Jordan, 543 F.3d 725, 728–29 (D.C. Cir. 2008).5 special circumstances are presen t and that it is appropriate to exercise its discretion to consider the statute of limitations defense here. First and foremost, this case i nvolves the FSIA and an absent f oreign sovereign. As such, unlike a run-of-the-mill civil suit, it implicates internationa l relations and comity—“the spirit of cooperation in which a domestic t ribunal approaches the resolut ion of cases touching the laws and interests of other sovereign s tates,” Societe Nationale Ind ustrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 543 n.27 (1987). The FSIA was crafted to “codify [a] careful balance between the imm unity historically accorded to f oreign sovereigns and holding them accountable, in certain cir cumstances, for their actions.” Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 822 (2018). The balance struck in that statute —which includes a statute of limitations provision—reflects th e wisdom of the two political branches of government on the sensitive question of when for eign sovereigns should be subject to suit in U .S. courts. Thus, the statute of limitations encoded in the FSIA serves to protect more than simply the interests of individual litig ants; it furthers internationa l relations and “the reciprocal foreign litigation interests of the Unite d States.” Clodfelter v. Repu blic of Sudan, 720 F.3d 199, 209 (4th Cir. 2013) (affirming district court’s sua sponte consideration of res judicat a in a FSIA case); see also Owens, 864 F.3d at 768 (consider ing waived arguments in a FSIA case because of, among other reasons, the “possible e ffects [of the case] on internati onal relations”). Consequently, the Court concludes that “[c]omity in the face of an absent foreignsovereign presents a special circumstance permitting sua sponte consideration” of a statute of limitations defense. Clodfelter, 720 F.3d at 209; see also Maalouf v. Islamic Republic of Iran, 2018 WL 1567583, at *4–7 (D.D.C. March 30, 2018) (holding that international relations and comity justified consideration6 of a statute of limitations defe nse in a FSIA motion for defaul t judgment), appeal docketed, No. 18-7052 (D.C. Cir. April 16, 2018). The Court’s conclusion is buttr essed by the statutory provision regarding default judgments in FSIA cases. Under th e FSIA, before entering a def ault judgment the Court must determine whether the plaintiff has established her claim or ri ght to relief by satisfactory evidence. See 28 U.S.C. § 1608(e). More than in the usual cas e, in a FSIA case the Court is “bound by a duty to scrutinize the pl aintiff’s allegations.” R eed v. Islamic Republic of Iran, 845 F. Supp. 2d 204, 211 (D.D.C. 2012). This textual requirement “ that a district court consider whether the plaintiff has met its evidentiary burden suggests that a district court may properly take a close look at a plainti ff’s claim,” including by conside ring sua sponte a defense like the statute of limitations. Clodf elter, 720 F.3d at 210; see also Maalouf, 2018 WL 1567583, at *5 (“Given this independent screeni ng requirement, it is appropria te for a district court to address clear violations of the FSIA statute of limitations.”). The Bathiards recognize the for eign relations issues involved h ere, as well as the fact that the judiciary “has assumed a de ferential role in dealing with f oreign nations.” Pls.’ Suppl. Br. at 3. But these factors counsel to wards the opposite conclusion, they contend. Had Congress wanted federal courts to “exem pt foreign sovereigns from the no rmal rules of procedure,” it would have done so. Id. at 2. Rathe r, in their view, “Congres s extended no special treatment on this issue to a defaulting sovere ign and clearly contemplated t hat none be given.” Id. at 3. The Court is cognizant that feder al courts have “traditionally ‘deferred to the decisions of the political branches . . . on whether to take jurisdiction ov er actions against foreign sovereigns.’” Rubin, 138 S. Ct. at 821 (citation omitted) (alt eration in original). And it appreciates that had Congress wa nted the statute of limitations to be non-waivable, it could have7 said so, such as by making it juri sdictional. Yet, the Bathiar ds’ approach still raises concerns over comity and international relations even in the face of Con gress’s decision to make the statute of limitations nonjurisdi ctional. The Bathiards have b rought their suit over thirty years after the incident a t issue occurred. A nd “if a twenty-nine ye ar (or a thirty-three year) gap is acceptable, there is little reason to prohibit suits brought fo rty, fifty, or more years after the fact.” Maalouf, 2018 WL 1567583, at *6. What ever Congress intended inpassing the FSIA, it surely did not intend to allow suits—and judgments with all their atte ndant steps for enforcement— against foreign sovereigns wit hout temporal limitations whatsoe ver. If the Court were to ignore the statute of limitations in e very case, it would open up the “possibility of nearly endless litigation” and the “murky for eign policy considerations of enabling untimely judgments.” Id. The Court declines to do so. At the end of the day, sua sponte consideration of affirmativ e defenses remains a discretionary choice. It may not be appropriate in every FSIA case. But in light of the several decades of time that have passed between the events at issue he re and the filing of this suit, combined with the unsettling foreign policy implications of all owing suits and judgments against absent foreign sovereigns without any temporal limitations, the Court in this case will exercise its discretion to consider the statute of limitations sua sponte

. B. Timeliness as a New Action Having decided to address the time liness of this suit, the Cour t turns to the Bathiards’ first timeliness argument: that the lawsuit was timely filed un der the FSIA as an original action. The relevant provision of the FSI A states that “[a]n action may be brought or maintained . . . if the action is commenced . . . not lat er than the latter of (1) 10 years after Ap ril 24, 1996; or (2) 10 years after the date on whic h the cause of action arose.” 2 8 U.S.C. § 1605A(b). The first8 portion of this provision is irrel evant here, as the Bathiards filed suit well afte r April 2006. But they argue that their suit i s timely under the second provision . They contend that their cause of action arose on January 28, 2008, the effective date of the ame ndments to the FSIA that gave the Bathiards the ability to file s uit as relatives of non-citizen government employees. Because they filed suit within 10 years of that date, they say, the suit is timely. The D.C. Circuit has not squarely addressed when a FSIA cause o f action “arises,” though it has characterized the Bat hiards’ argument as “rather strained,” Simon v. Republic of Iraq, 529 F.3d 1187, 1194-95 (D.C. Cir. 2008), rev’d on other g rounds sub nom. Republic of Iraq v. Beaty, 556 U.S. 848 (2009). 2 Other judges in this District , however, have declined to adop t the Bathiards’ interpretation, r uling instead that a FSIA cause of action arises on the date of the relevant attack. See Sheikh, 172 F. Supp. 3d at 130–31; Roth v . Islamic Republic of Iran, 78 F. Supp. 3d 379, 397 (D.D.C. 2015). The Court agrees with these d ecisions. As usual, the Court starts with t he text of the statute. The S upreme Court has explained that, as a general matter, the phr ase “cause of action arose” “ incorporates the standard rule that the limitations period commences w hen the plaintiff has ‘a comp lete and present cause of action.’” Bay Area Laundry & D ry Cleaning Pension Trust Fund v . Ferbard Corp. of California, 522 U.S. 192, 201 (1997) (citation omitted); see also Rawlings v. Ray, 312 U.S. 96, 98 (1941) (“The words ‘after a cause of action shall accrue’ in the Arkan sas statute have their usual meaning and refer to ‘a complete and present cause of action.’” (citation omitted)). “Unless

2 The D.C. Circuit did state in Owens v. Republic of Sudan that “the plaintiffs’ causes of action arose on August 7, 1998, the dat e of the embassy bombing s” at issue in that case. 864 F.3d at 800. While this lends suppor t to the Court’s similar r eading of the statute here, the decision in Owens did not reach the timeliness arguments raised by Sudan in that case and as such did not address how to inter pret the statute of limitation s provision at issue here. See id. at 804 (finding Sudan’s arguments rega rding timeliness forfeited).9 Congress has told us otherwise i n the legislation at issue, a c ause of action does not become ‘complete and present’ for limitations purposes until the plain tiff can file suit and obtain relief.” Bay Area Laundry, 522 U.S. at 201. Since a plaintiff can only sue a nd obtain relief once all the f actual elements of her claim are present, the ordinary unders tanding is that a cause of acti on arises once the final factual prerequisite to suit is met. For instance, in Bay Area Laundry the Supreme Court held that a statute of limitations in a pe nsion statute did not begin to run on the date that an employer withdrew from a pension plan because employees could not bring suit at that time; rather, they had to wait for several additional factual events—the calculati on of a debt and the employer’s default on a payment— to occur first. 522 U.S. at 201–02. Sim ilarly, the Supreme Court has held that the statute of limita tions for a constructive dischar ge claim under Title VII does not begin running until the employee resigns, since only then does the employee meet the elements for a constructive discharg e claim. Green v. Brennan, 136 S. C t. 1769, 1776 (2016). In sum, a cause of action typically “arises” once all the factual element s for a claim have occurred. See Sheikh, 172 F. Supp. 3d at 128 (“[S]tatu tes of limitations gene rally do not begin to run until a defendant has taken the final s tep that makes its conduct legal ly actionable.”). But wait, the Bathiards say. The Supreme Court in Bay Area Lau ndry also indicated that a cause of action does not arise until the plaintiff “can file suit.” 522 U.S. at 201. Fixating on this language, the Bathiards cont end that a cause of action doe s not arise until a statutory cause of action exists . After all, if there is no statu te that provides a cause of a ction, then a plaintiff cannot file suit and obtain relie f. Therefore, they conclude, the cause of action here did not “arise” until 2008, when the FSIA was amended to allow non-U.S. citizens like the Bathiards to bring suit under the terrorism exception.10 While this argument is clever, it pulls the Supreme Court’s lan guage in Bay Area Laundry entirely out of context. C ases such as Bay Area Laundry and Green typically involve a question as to which of two factual events triggers the statute of limitations—the employer’s withdrawal from the pension pla n or the employer’s default on a payment in Bay Area Laundry; the employee’s resignation or the l ast discriminatory act in Gr een. The cause of action was complete, the Court held in both c ases, when the last factual e vent necessary to bring suit occurred. The language in Ba y Area Laundry thus says nothing a bout how the existence of a statutory cause of action rela tes to the running of a statute o f limitations. Moreover, the Bathiards’ readi ng of the statute and the languag e from Bay Area Laundry would lead to a host of problems. I n essence, the Bathiards’ argument is that no cause of action ever “arises” until the statute creating the cause of action ex ists. Consequently, any time that Congress creates a new statutory cause of action with an analog ously-worded statute of limitation, any plaintiff with a valid claim can bring it no matter how long ago the relevant
conduct occurred

. The Bathiards’ reading would eff ectively give every statute cre ating a new cause of action and including a similar st atute of limitations unlimited retroactive effect. While Congress could do that if it wanted, the Court will not presume that in such statutes Congress intends to open the courthouse doors to any and all claimants regardless o f how long ago the relevant conduct occurred without at least some indication of that inten t. See, e.g., Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 753 (D.C. Cir . 2010) (“There is a ‘well- settled presumption’ against giving statutes retroactive effect.” (citation omitted)). This is particularly so i n the context of a statute like the FSIA that imp licates important concerns over f oreign relations, comity, and foreign sovereignty—the Court w ill not assume Congress intended the foreign policy11 consequences of unlimited retroact ivity for suits against sover eign states without a clear indication. Because of the unlim ited retroactive impact of the Bathiards’ interpretation, the Court is disinclined to adopt it. Even if it were so inclined, other tools of statutory interpret ation cut against the Bathiards’ reading of the statuto ry text as well. First, compa ring the current statute of limitations with the pre-2008 limitations pr ovision illustrates that Congre ss did not understand the phrase “date the cause of action aros e” to have the meaning advanced b y the Bathiards. Like the current version of the statute of limita tions, the version in force fro m 1996 until 2008 provided that suits needed to be “commenced not later than 10 years after the date on which the cause of action arose.” 28 U.S.C. § 1605(f) (2006). But unlike the present pro vision, it went on to state that “[a]ll principles of equitable tolling, including the period during which the foreign state was immune from suit, shall apply i n calculating this limitation pe riod.” Id. If the phrase “date on which the cause of action arose” had th e meaning offered by the Bathiards, it would make the equitable tolli ng provision unnece ssary: if all plaintiffs had a tenyear window to file suit from 1996 because their cause of actio n did not arise unti l then, there would have been no need to toll the pre-1996 period when the fo reign state had been immune from suit. The Bathiards’ in terpretation should therefore be a voided. See, e.g., Asiana Airlines v. FAA, 134 F.3d 393, 398 (D.C. Cir. 1998) ( “A cardinal princip le of interpretation requires us to construe a statute ‘so tha t no provision is rendered inopera tive or superfluous, void or insignificant.’” (citation omitted)). The only sensible remain ing interpretation of the phrase “date on which the cause of acti on arose” in the prior version is the date of the attack at issue. And the Court should presume tha t Congress intended the identic al language in the post-2008 version to have the same mean ing. Cf. IBP, Inc. v. Alvarez, 54 6 U.S. 21, 34 (2005) (recognizing12 “the normal rule of statutory int erpretation that identical wor ds used in different parts of the same statute are generally presumed to have the same meaning”). Moreover, Congress knows how to carve out a window allowing for suits that lacked a cause of action prior to the 2008 a mendment. It did precisely that in the pre-2008 statute of limitations by providing for equ itable tolling, which it did no t do in the current version. And it provided for an alternative mech anism in the post-2008 statute of limitations by allowing plaintiff to bring suit with in 10 years of a fixed date—1996. Congress’s choice not to include language that would cl early have the meaning t he Bathiards argu e for here indicates that it did not intend to adopt their interpr etation. Cf. A dvocate Health Care Network v. Stapleton, 137 S. Ct. 1652, 1659 (2017) (“When legislato rs did not adopt ‘obvious alternative’ language, ‘the natural implication is that the y did not intend’ the alternativ e.” (citation omitted)). Finally, the legislative histor y, which the Bathiards contend s upports their reading, actually undercuts it. The Bathiar ds point to statements made by Senator Frank Lautenberg, the author of the 2008 amendments to the FSIA. In the cited statem ents, Senator Lautenberg criticized a court decision int erpreting the pre-2008 statute o f limitations. 154 Cong. Rec. S54 (daily ed. Jan. 22, 2008). He then s tated that the intent of t he pre-2008 statute of limitations was “to provide a 10-year period from the date of enactment of the legislation for all acts that had occurred at any time prior to its passage in 1996” and “to prov ide a period of 10 years from the time of any attack which mi ght occur after 1996.” Id. The ame nded version of the statute of limitations, he explained, “clar ifies this intent.” Id. Indee d it does: The Senator’s comments— and particularly his focus on the “ time of the attack”—further underscore that the phrase “date on which the cause of action aros e” refers to the date of the u nderlying factual events, not the effective date of the 2008 amendments.13 For all these reasons, the Court concludes that the “date the c ause of action arose” means the date the factual events gi ving rise to the claim occurred. In the ordinary case, that will be when the attack at issue occurr ed. Here, that date was April 1 8, 1983. Since the Bathiards brought suit far more than 10 years after that date, their clai ms are untimely as a n original action.
C. Timeliness as a Related Action The Bathiards also contend tha t even if their action does not c omply with the statute of limitations period for a new ac tion, it should still be conside red timely as a related action. To prevail on this argument, the Bat hiards must satisfy two requir ements: (1) that the original action to which their case is relate d was timely filed under the ten-y ear statute of limitations provision discussed above and (2) that th e related action was filed withi n the separate statute of limitations period provided in section 1083(c)(3) of the National Defense A uthorization Act for Fiscal Year 2008 (“NDAA”). See, e.g., Owens, 864 F.3d at 799-800. This se cond provision requires a related action be commenced not l ater than the latter of 60 day s after (1) the da te of the entry of judgment in the original action o r (2) the date of the enactmen t of the NDAA. National Defense Authorization Act for Fis cal Year 2008, § 1083(c)(3), Pub. L. N o. 110-181, 122 Stat. 3, 343 (2008). The Bathiards claim that their action is related to Dammarrell v. Islamic Republic of Iran, 281 F. Supp. 2d 105 (D.D.C. 2003), which sought relief for U.S. citizens who were injured or killed in the 1983 embassy bombi ng in Beirut. Even assuming th at Dammarrell qualifies as a timely-filed related action that arose “out of same act or inci dent” as the present lawsuit, 3 the

3 It is an open question in the D.C . Circuit as to whether a rel ated action may be brought only by plaintiffs who previously f iled an action under the pre -2008 version of the FSIA as opposed to anyone injured in the same attack. See Owens, 864 F .3d at 801; Van Benedin v. AlSanusi, 709 F.3d 1165, 1167 n.3 (D.C. Cir. 2013). The Court ex presses no opinion on that issue.14 Bathiards do not meet the requi rement of the second statute of limitations in the NDAA. They filed suit on August 1, 2016, we ll beyond 60 days after either the entry of judgment in Dammarrell (September 7, 2006) or the enactment of the NDAA (Ja nuary 28, 2008). Therefore, the Bathiards cannot rely on sect ion 1605A’s related action pro vision to support the claim that their suit is timely.

IV. Conclusion For the foregoing reasons, the B athiards have failed to establi sh that their lawsuit was filed within the statute of limitations period. The Court will therefore deny their motion for a default judgment and instead dism iss the case. A separate Order shall accompany this Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge Date: June 29, 2018