Manouchehr Mohammadi , Et Al . v. Islamic Republic of Iran, Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 2014 Decided April 3, 2015
No. 13-7109
M ANOUCHEHR M OHAMMADI , ET AL .,
APPELLANTS
v.
I SLAMIC REPUBLIC OF I RAN, ET AL .,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01289)
Larry Klayman argued the cause and filed the brief for
appellant.
Before: KAVANAUGH and SRINIVASAN , Circuit Judges,
and EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SRINIVASAN .
SRINIVASAN , Circuit Judge: Plaintiffs, three Iranian
émigré siblings and the estate of their deceased brother, seek
recovery for imprisonment, torture, and extrajudicial killing
they allegedly suffered at the hands of the Islamic Republic of
Iran. The district court dismissed the complaint, finding that
it lacked subject-matter jurisdiction, principally because of

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defendants’ foreign sovereign immunity. The court also
denied plaintiffs’ motion for reconsideration and their
associated motion for leave to file a fourth amended
complaint. We affirm the district court.
I.
As college students in Tehran during the 1990s, plaintiff
Manouchehr Mohammadi and his late brother, Akbar
Mohammadi, became leaders in the Iranian pro-democracy
movement. As part of their political activism, the brothers
participated in the 1999 student protests.
Iranian officials arrested the brothers for their role in the
protests and confined them in Evin prison in Tehran, where
they allegedly suffered brutal physical and psychological
abuse and torture. According to plaintiffs’ testimony, the
brothers were repeatedly flogged, hung from the ceiling by
their hands, beaten to the point of unconsciousness, burned on
their genitalia, exposed to the elements, and subjected to
mock executions.
Akbar’s and Manouchehr’s sisters, Nasrin Mohammadi
and Simin Taylor, also allegedly suffered severe mistreatment
at the hands of the Iranian regime. Nasrin testified that an
Iranian agent attempted to murder her in Germany in 2002,
and Simin claims to have been imprisoned and threatened
with rape while living in Iran.
Akbar died in prison in 2006. Manouchehr fled Iran
while on temporary release from prison to attend Akbar’s
funeral. By late 2006, the three surviving siblings all had
settled in the United States. Nasrin and Simin ultimately
obtained United States citizenship, and Manouchehr became a
lawful permanent resident. Plaintiffs contend that Iranian

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agents continued to harass them in the United States,
threatening them over the phone with murder, refusing to let
their parents leave Iran, hacking their computers, and
circulating doctored photographs of Nasrin depicted in an
immodest light.
In 2009, plaintiffs brought an action to recover for their
injuries. They named as defendants the Islamic Republic of
Iran, the Army of the Guardians of the Islamic Revolution
(the Revolutionary Guard), and two Iranian leaders, Ayatollah
Sayid Ali Hoseyni Khamenei and Mahmoud Ahmadinejad.
Plaintiffs amended their complaint on three occasions.
Because defendants never appeared in court to contest the
allegations against them, plaintiffs filed a motion for entry of
default and a default judgment. The district court granted the
motion for entry of default and scheduled an evidentiary
hearing to establish damages. The court also directed
plaintiffs to submit briefing addressing the basis for the
court’s subject-matter jurisdiction.
Following several rounds of supplemental briefing, the
district court dismissed plaintiffs’ complaint for lack of
subject-matter jurisdiction. Mohammadi v. Islamic Republic
of Iran, 947 F. Supp. 2d 48 (D.D.C. 2013). The court held
that the Foreign Sovereign Immunities Act, 28 U.S.C.
§§ 1602 et seq., afforded Iran and the Revolutionary Guard
immunity from the court’s jurisdiction. Mohammadi, 947 F.
Supp. 2d at 62-68. The court rejected plaintiffs’ reliance on
the Foreign Sovereign Immunity Act’s terrorism exception,
28 U.S.C. § 1605A. Id. That exception abrogates immunity
if, among other things, the complaint seeks damages for
“torture” or “extrajudicial killing” and the victim was a
“national of the United States” at the time of those acts. 28
U.S.C. § 1605A(a). The district court held that plaintiffs

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failed to qualify as United States “nationals” at the time of the
relevant acts in Iran, and that any acts postdating plaintiffs’
relocation to the United States failed to constitute “torture”
within the meaning of the statute. Mohammadi, 947 F. Supp.
2d at 68. With regard to the individual defendants, Khamenei
and Ahmadinejad, the court held that the claims against them
would be treated as claims against Iran itself and thus would
likewise be dismissed based on foreign sovereign immunity.
Id. at 72-73. Because the court concluded that it lacked
subject-matter jurisdiction, it also denied plaintiffs’ motion
for default judgment.
Plaintiffs filed a motion for reconsideration and an
accompanying motion for leave to file a fourth amended
complaint. The district court denied both motions.
Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d 48,
74 (D.D.C. 2013), recons. denied (D.D.C. Jul. 12, 2013).
Plaintiffs now appeal the dismissal of their third amended
complaint for lack of subject-matter jurisdiction and the
denial of their motions for reconsideration and for leave to file
a fourth amended complaint.
II.
The Foreign Sovereign Immunities Act (FSIA), 28
U.S.C. §§ 1602 et seq., affords the “sole basis for obtaining
jurisdiction over a foreign state” in United States courts.
Argentine Republic v. Amerada Hess Shipping Corp., 488
U.S. 428, 434 (1989). While the FSIA establishes a general
rule granting foreign sovereigns immunity from the
jurisdiction of United States courts, 28 U.S.C. § 1604, that
grant of immunity is subject to a number of exceptions, see id.
§§ 1605-1607. In their third amended complaint, plaintiffs
asserted subject-matter jurisdiction based solely on the
FSIA’s terrorism exception, 28 U.S.C. § 1605A. Reviewing

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the matter de novo, see National Air Traffic Controllers Ass’n
v. Federal Service Impasses Panel, 606 F.3d 780, 786 (D.C.
Cir. 2010), we agree with the district court’s conclusion that
the terrorism exception is inapplicable here.
The terrorism exception abrogates immunity in cases in
which a plaintiff seeks damages for personal injury or death
caused by “torture, extrajudicial killing, aircraft sabotage,
hostage taking, or the provision of material support or
resources for such an act,” if “engaged in by an official,
employee, or agent” of a foreign country. 28 U.S.C.
§ 1605A(a)(1). The exception further requires that (i) the
foreign country was designated a “state sponsor of terrorism
at the time [of] the act,” (ii) the “claimant or the victim was” a
“national of the United States” at that time, and (iii) the
“claimant has afforded the foreign state a reasonable
opportunity to arbitrate the claim.” Id. § 1605A(a)(2).
Because Iran has been designated a state sponsor of
terrorism since 1984, plaintiffs satisfy the first of those
conditions. See Heiser v. Islamic Republic of Iran, 735 F.3d
934, 937 (D.C. Cir. 2013); Roeder v. Islamic Republic of Iran,
646 F.3d 56, 58 n.1 (D.C. Cir. 2011). Plaintiffs, however, fail
to satisfy the second condition with regard to the torture and
extrajudicial killing allegedly committed against them while
in Iran, because none of them was a “national of the United
States” at the time of those acts.
The terrorism exception assigns the term “national of the
United States” the “meaning given that term in section
101(a)(22) of the Immigration and Nationality Act” (INA), 8
U.S.C. § 1101(a)(22). 28 U.S.C. § 1605A(h)(5). The
referenced provision of the INA, in turn, generally describes
“national of the United States” to mean either a “citizen of the
United States” or a “person who, though not a citizen of the

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United States, owes permanent allegiance to the United
States.” 8 U.S.C. § 1101(a)(22).
Here, it is undisputed that none of the plaintiffs was a
United States citizen between 1999 and 2006, when the
central alleged acts of torture and extrajudicial killing
occurred in Iran. Instead, plaintiffs argue that they qualified
as United States nationals during that time because they
“owe[d] permanent allegiance to the United States.” They
assert that Manouchehr, Akbar, and Nasrin had personally
pledged permanent allegiance to the United States and
disclaimed their loyalty to Iran following the “first signs of
persecution” in Iran, and that Nasrin exhibited her allegiance
by applying for and attaining United States permanent
resident status before Akbar’s death in 2006. Mohammadi,
947 F. Supp. 2d at 64.
Plaintiffs’ argument is foreclosed by our precedent. We
have held that “manifestations of ‘permanent allegiance’ do
not, by themselves, render a person a U.S. national.” Lin v.
United States, 561 F.3d 502, 508 (D.C. Cir. 2009). That is
because the “phrase ‘owes permanent allegiance’” in 8 U.S.C.
§ 1101(a)(22) is “a term of art that denotes a legal status for
which individuals have never been able to qualify by
demonstrating permanent allegiance, as that phrase is
colloquially understood.” Marquez-Almanzar v. INS, 418
F.3d 210, 218 (2d Cir. 2005); see Lin, 561 F.3d at 508
(relying on Marquez-Almanzar). The reference in 8 U.S.C.
§ 1101(a)(22) to a United States national as a person who
“owes permanent allegiance to the United States” is
descriptive of someone who has attained the status of United
States nationality through other statutory provisions; it does
not itself set forth an independent basis by which to obtain
that status. The language, that is, “describes, rather than
confers, U.S. nationality.” Marquez-Almanzar, 418 F.3d at

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218; see Lin, 561 F.3d at 508. The conferral of United States
nationality must come from elsewhere.
The sole such statutory provision that presently confers
United States nationality upon non-citizens is 8 U.S.C.
§ 1408. See Lin, 561 F.3d at 508; Marquez-Almanzar, 418
F.3d at 219. Plaintiffs make no claim that they qualify as
United States nationals under that provision, much less that
they did so at the time of the alleged torture and extrajudicial
killing in Iran. Section 1408 describes four categories of
persons who “shall be nationals, but not citizens, of the
United States at birth.” 8 U.S.C. § 1408. Those categories
generally consist of persons born in, or possessing a specified
personal or parental connection with, an “outlying possession
of the United States,” id. § 1408(1)-(4), presently defined as
American Samoa and Swains Island, id. § 1101(a)(29). See
Lin, 561 F.3d at 508; see also Hashmi v. Mukasey, 533 F.3d
700, 703 n.1 (8th Cir. 2008) (noting that the category of those
who owe “permanent allegiance to the United States . . . [is]
apparently limited to residents of American Samoa and
Swains Island”).
The courts of appeals to consider the issue thus have
overwhelmingly concluded that the status of non-citizen
United States nationality is limited to those persons described
in 8 U.S.C. § 1408, and that, apart from that provision, an
effort to demonstrate “permanent allegiance to the United
States” does not render a person a United States national. See
United States v. Sierra-Ledesma, 645 F.3d 1213, 1224-26
(10th Cir. 2011); Abou-Haidar v. Gonzales, 437 F.3d 206,
207 (1st Cir. 2006); Omolo v. Gonzales, 452 F.3d 404, 409
(5th Cir. 2006); Sebastian-Soler v. U.S. Att’y Gen., 409 F.3d
1280, 1285-87 (11th Cir. 2005); Marquez-Almanzar, 418 F.3d
at 218-19; Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972
(9th Cir. 2003); Salim v. Ashcroft, 350 F.3d 307, 309-10 (3d

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Cir. 2003) (per curiam). While one court of appeals has
indicated otherwise, see United States v. Morin, 80 F.3d 124,
126 (4th Cir. 1996), we specifically “join[ed] the majority”
approach in Lin, 561 F.3d at 508. (And the continuing
practical force of the Fourth Circuit’s decision in Morin
within that circuit appears unclear. See Fernandez v. Keisler,
502 F.3d 337, 348 (4th Cir. 2007).) Plaintiffs likewise err in
relying on certain district court decisions attributing United
States nationality to non-citizens based on unique
circumstances indicating a “permanent allegiance to the
United States.” See Peterson v. Islamic Republic of Iran, 515
F. Supp. 2d 25, 39 n.4 (D.D.C. 2007); Asemani v. Islamic
Republic of Iran, 266 F. Supp. 2d 24, 26 (D.D.C. 2003).
Those decisions predate ours in Lin.
After Lin, in short, plaintiffs’ professed “attitudes of
permanent allegiance do not help” them establish United
States nationality. 561 F.3d at 508. Plaintiffs thus fail to
satisfy the terrorism exception’s nationality requirement for
the 1999-2006 time period, when the central alleged acts of
torture and extrajudicial killing took place in Iran.
Since 2006, however, two of the plaintiffs have
unquestionably become “nationals” within the meaning of 8
U.S.C. § 1101(a)(22): Nasrin and Simin obtained United
States citizenship in 2009 and 2011, respectively. Plaintiffs
therefore contend that they can establish jurisdiction under the
terrorism exception with respect to events occurring after
Nasrin and Simin became United States citizens. That
argument could have merit, however, only if, after Nasrin
became a citizen in 2009, the Iranian regime engaged in
conduct against plaintiffs constituting “torture, extrajudicial
killing, aircraft sabotage, hostage taking, or the provision of
material support or resources for such an act.” See 28 U.S.C.
§ 1605A(a)(1), (a)(2). According to plaintiffs, the Iranian

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regime continued to “torture” them in the United States by
making threatening phone calls, hacking certain of plaintiffs’
online accounts, and disseminating doctored, sexually explicit
photographs of Nasrin. We conclude that those alleged acts,
while certainly harassing and objectionable, fail to amount to
“torture” within the meaning of the terrorism exception.
The terrorism exception defines “torture” by reference to
the definition of that term contained in the Torture Victim
Protection Act (TVPA), 106 Stat. 73, note following 28
U.S.C. § 1350. See 28 U.S.C. § 1605A(h)(7). The TVPA, in
turn, defines torture as “any act, directed against an individual
in the offender’s custody or physical control, by which severe
pain or suffering . . . is intentionally inflicted on that
individual.” 28 U.S.C. § 1350 (note). It is doubtful that
plaintiffs could be considered to have been in the Iranian
regime’s “custody or physical control” after their relocation to
the United States.
Even assuming otherwise, the challenged acts postdating
plaintiffs’ settlement in the United States fail to satisfy the
statute’s severity requirement. Plaintiffs’ allegations did not
involve physical acts against them. And the non-physical acts
alleged—viz., threatening phone calls made from Iran,
hacking of Facebook and email accounts, and circulation of
explicit photographs—fall short of anything previously held
to constitute “torture” within the meaning of the TVPA. See
Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326
F.3d 230, 234 (D.C. Cir. 2003).
In addition to claiming that they have been subjected to
continuing torture after their settlement in the United States,
plaintiffs argue that Iran has engaged in “hostage taking”
within the meaning of the FSIA’s terrorism exception because
the Iranian regime refuses to permit their parents to leave

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Iran. The district court found that argument to have been
waived on the ground that plaintiffs failed to press it until
their post-judgment motion for reconsideration. We find no
abuse of discretion in that ruling. See GSS Grp. Ltd. v. Nat’l
Port Auth., 680 F.3d 805, 811 (D.C. Cir. 2012).
In any event, a prohibition on international travel of the
kind alleged by plaintiffs would not constitute “hostage
taking.” The statute’s definition of “hostage taking”
incorporates the definition from Article 1 of the International
Convention Against the Taking of Hostages, see 28 U.S.C.
§ 1605A(h)(2), and that definition applies to a person who
“seizes or detains and threatens to kill, to injure or to continue
to detain another person,” Simpson, 326 F.3d at 234 (internal
quotation marks omitted). Even if plaintiffs’ parents are
barred from traveling abroad from Iran, there is no allegation
that they have been “seized or detained” within Iran under any
ordinary understanding of those terms. Courts thus have
found “hostage taking” in cases involving physical capture
and confinement, not restrictions on international travel. See,
e.g., Simpson v. Socialist People’s Libyan Arab Jamahiriya,
470 F.3d 356, 358 (D.C. Cir. 2006); Anderson v. Islamic
Republic of Iran, 90 F. Supp. 2d 107, 109-111, 113 (D.D.C.
2000).
Because plaintiffs fail to satisfy the statutory
requirements of the terrorism exception, Iran, as a “foreign
state,” is “immune from the jurisdiction” of federal courts.
See 28 U.S.C. § 1604. The district court concluded that it also
lacked jurisdiction over the Revolutionary Guard because the
FSIA defines “foreign state” to include “a political
subdivision of a foreign state or an agency or instrumentality
of a foreign state,” id. § 1603(a). Plaintiffs have forfeited any
challenge to that conclusion by failing to contest it on appeal.
See, e.g., World Wide Minerals, Ltd. v. Republic of

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Kazakhstan, 296 F.3d 1154, 1160 (D.C. Cir. 2002). Plaintiffs
also raise no challenge to the district court’s determination
that foreign sovereign immunity extended to the individual
defendants, Khamenei and Ahmadinejad. Immunity under the
FSIA therefore applies to all defendants.
In a final effort to establish subject-matter jurisdiction,
plaintiffs invoke the Alien Tort Statute, 28 U.S.C. § 1350.
The Alien Tort Statute, however, does not confer any waiver
of foreign sovereign immunity. See Amerada Hess, 488 U.S.
at 438-39; Enahoro v. Abubakar, 408 F.3d 877, 883 (7th Cir.
2005); Siderman de Blake v. Republic of Argentina, 965 F.2d
699, 713 n.13 (9th Cir. 1992). The Alien Tort Statute affords
jurisdiction for suits against private defendants, not against
foreign sovereigns. The FSIA provides the “sole basis for
obtaining jurisdiction over a foreign state.” Amerada Hess,
488 U.S. at 439. We therefore affirm the district court’s
dismissal of plaintiffs’ third amended complaint for lack of
subject-matter jurisdiction.
III.
After the district court granted dismissal, plaintiffs filed
motions for reconsideration and for leave to file a fourth
amended complaint. The only basis for jurisdiction under the
FSIA asserted in the third amended complaint was the
terrorism exception, 28 U.S.C. § 1605A. In the proposed
fourth amended complaint, plaintiffs sought to invoke 28
U.S.C. § 1605(a)(5), the FSIA’s noncommercial torts
exception, as an additional basis for jurisdiction. The district
court denied plaintiffs’ motion for reconsideration and
consequently denied as moot plaintiffs’ motion to file a fourth
amended complaint. Mohammadi, 947 F. Supp. 2d at 84. We
review the district court’s ruling for abuse of discretion, see
GSS Group Ltd., 680 F.3d at 811; In re InterBank Funding

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Corp. Securities Litigation, 629 F.3d 213, 218 (D.C. Cir.
2010), and we perceive no basis for overturning it.
Federal Rule of Civil Procedure 15(a) provides that leave
to amend shall be “freely give[n]” when “justice so requires.”
But after entry of judgment, a court has no obligation to grant
leave to amend unless a plaintiff first satisfies “Rule 59(e)’s
more stringent standard for setting aside that judgment.”
Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004) (internal
quotation marks omitted). “[R]econsideration of a judgment
after its entry is an extraordinary remedy which should be
used sparingly.” 11 Charles Alan Wright et al., Federal
Practice & Procedure § 2810.1 (3d ed. 2012). A district court
need not grant a Rule 59(e) motion unless there is an
“intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent
manifest injustice.” Patton Boggs LLP v. Chevron Corp., 683
F.3d 397, 403 (D.C. Cir. 2012) (internal quotation marks
omitted).
Plaintiffs do not allege any change in applicable law, new
evidence, or clear error. Rather, they contend that the district
court’s failure to consider the fourth amended complaint
constituted a “manifest injustice” because they had included
the noncommercial torts exception as a jurisdictional basis in
the initial complaint and first two amended complaints, but
omitted it—allegedly inadvertently—from the third amended
complaint.
“[W]hen a plaintiff files a complaint in federal court and
then voluntarily amends the complaint,” however, “courts
look to the amended complaint to determine jurisdiction.”
Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473-74
(2007). The district court thus had no obligation to consider
jurisdictional bases set forth in prior iterations of the

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complaint. Moreover, plaintiffs made no reference to the
noncommercial torts exception at the evidentiary hearing or in
their supplemental briefing addressing jurisdiction. In those
circumstances, the district court acted comfortably within its
discretion in relying on the sole jurisdictional basis set forth in
the third amended complaint and associated supplemental
briefing. There could be no “manifest injustice” where, as
here, plaintiffs could have “easily avoided the outcome” but
either failed to “exercise[] due diligence,” Fox v. American
Airlines, Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004), or
“elected not to act” until after the entry of judgment, Ciralsky,
355 F.3d at 673.
Having concluded that the district court did not abuse its
discretion in denying plaintiffs’ motion for reconsideration
under Rule 59(e), we likewise find that the court did not err in
denying plaintiffs’ Rule 15(a) motion for leave to file a fourth
amended complaint. “Since the court declined to set aside the
judgment under Rule 59(e), it properly concluded that
[plaintiffs’] motion to amend under Rule 15(a) was moot.”
Ciralsky, 355 F.3d at 673.
* * * * *
We affirm the district court’s dismissal for lack of
subject-matter jurisdiction and its denial of plaintiffs’ motions
for reconsideration and for leave to file a fourth amended
complaint.
So ordered.

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