Appeals Court Clears Way for Israeli Terror Victim to Get Maximum Payment From Iran

A federal appeals court ruled that the family of Naftali Fraenkel, Hy”d, one of the three teenagers kidnapped and murdered in 2014 by Hamas terrorists, is entitled to a higher level of damages than was awarded by an earlier judgment. The decision could have broader ramifications because the court’s opinion rejects certain factors that some saw as roadblocks to future efforts to attack funding sources of terrorism in the American legal system.

Most noteworthy about the ruling is its rejection of the argument that the Fraenkels’ residence in an area prone to terror attacks, and the fact that the teenager was targeted not as an American but as a Jew or as an Israeli, should reduce the level of damages that should be awarded by a U.S. court.

Meir Katz of the Berkman Law Office, who is one of the attorneys representing the Fraenkels, welcomed the ruling.

“This is a very big win,” he told Hamodia. “This district court ruling could have been very damaging as it essentially said that you can be an American citizen, but if you are attacked for being Jewish you are somehow worth less in the eyes of the law, or that living in a certain place [implies] an acceptance that you might be attacked. Fortunately, that is now off the books.”

The abduction of, Hy”d, young Fraenkel, 16, and two friends, Gilad Sha’ar, 16, and Eyal Yifrah, 18, aroused much attention among Jews worldwide who prayed for their safe return during the three weeks when their whereabouts were unknown. Ultimately their bodies were found, and authorities released information that they had been killed within a half hour of their kidnapping at a bus stop in Gush Etzion where they had been seeking a ride to their homes.

In 2015, Rachel Fraenkel, Naftali’s mother, brought a suit in a Washington D.C. district court against Iran, which she held liable as a key financial supporter of Hamas. U.S. courts were able to accept the suit, as Mrs. Fraenkel is an American citizen and her late son held dual U.S.-Israeli citizenship. The case was brought by lawyers at Berkman, who worked together with Shurat Hadin, an Israeli organization dedicated to pursuing legal torts against sponsors of terrorism.

The district court heard much testimony from family members and experts, ultimately accepting their arguments that Iran bore responsibility for the teen’s death. Iran generally does not respond to charges in U.S. courts, and the case was tried without arguments being presented for their side.

Foreign states are usually immune to actions in American courts under the Foreign Sovereign Immunities Act (FSIA), but this and similar suits have been advanced under an act of Congress that makes an exception for those engaged in or supporting acts of terrorism.

The court ruled that the Fraenkels were entitled to $1 million for Naftali’s pain and suffering and $50 million in punitive damages, and $4.1 million to his family in “solatium damages,” a term for the mental anguish suffered. Yet, the court noted that the amount awarded directly to the family was tens of millions less than what has been ruled in comparable cases. The judge differentiated between those cases, saying in those instances victims had been killed due to their identities as Americans. He also noted that the Fraenkels’ place of residence and the route that Naftali traveled to school were areas where terror acts regularly occur, amounting to a voluntary exposure to “risk.”

In a ruling issued late last week, the D.C. circuit of the Federal Appeals court rejected both arguments for limiting damages, noting that its logic was counterintuitive to Congress’ intent in opening up foreign states to legal action for participation in acts of terror. In light of the importance of the case, the court appointed law students to present arguments for Iran’s side.

“Given Congress’ consistent expansion of remedies under the FSIA for victims of state-sponsored terrorism overseas, in areas of the world subject to high levels of terrorism, it is hard to imagine that Congress meant for district courts to reduce solatium awards … for families like the Fraenkels, who live in areas that may face an increased incidence of terrorist attacks,” read the opinion.

The court also said that it found “no legal basis” to limit damages based on being “targeted for his affiliation with Israel, rather than the U.S.”

The case has now been sent back to the lower court to revise payment amounts in light of the ruling.

Even so, it is unlikely that Iran will pay the amounts it has been found liable for. As such, the Fraenkels’ most likely means of actually receiving payments is through the United States Victims of State Sponsored Terrorism Fund. The Fund is overseen by the Justice Department and is financed by fines charged to companies and individuals found to be engaging in business with certain countries in violation of U.S. sanctions.

Some plaintiffs with similar claims to the Fraenkels’ have attempted to exact payment from Iranian assets in America. This year, the Supreme Court rejected an attempt by families of terror victims to seize a set of ancient Persian tablets that are on long-term loan from Iran to the University of Chicago’s Oriental Institute.