Eli M. Borochov v. Islamic Republic of Iran and Syrian Arab Republic

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 2023 Decided March 8, 2024
Reargued September 29, 2023
No. 22-7058
ELI M. BOROCHOV, ET AL.,
APPELLEES
SHARI MAYER BOROCHOV, ET AL.,
APPELLANTS
v.
ISLAMIC REPUBLIC OF IRAN AND SYRIAN ARAB REPUBLIC,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02855)
Michael Radine argued the cause for appellants. On the
supplemental briefs was Robert J. Tolchin.
Steven R. Perles and Peter Raven-Hansen were on the
supplemental brief for amici curiae Robert Canine, et al. in
support of appellants.

-- 1 of 24 --

2
Ben Buell, Student Counsel, argued the cause as amicus
curiae in support of the District Court’s judgment. With him
on the supplemental brief was Catherine E. Stetson, appointed
by the court.
Brad Hinshelwood, Attorney, U.S. Department of Justice,
argued the cause for amicus curiae United States. With him on
the briefs were Brian M. Boynton, Principal Deputy Assistant
Attorney General, and Sharon Swingle, Attorney.
Before: MILLETT, PILLARD, and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Rotem and Yoav Golan, a
married couple, were among fourteen people injured when a
member of the terrorist group Hamas rammed his car into a
crowd at a bus stop in Jerusalem. The attack failed to kill any
of its intended victims; only the perpetrator died. Rotem and
Yoav, along with their relatives, who suffered emotional
trauma in the wake of the incident, sued Iran and Syria for the
injuries resulting from the car attack. The district court denied
a default judgment and any relief to several of the plaintiffs,
who then filed this appeal.
We hold that the district court lacked subject-matter
jurisdiction over this case. Congress granted federal courts
jurisdiction to hear personal-injury claims arising from, as
relevant here, “extrajudicial killings” committed or materially
supported by state sponsors of terrorism. But because the
attacker in this case (fortunately) did not kill anyone, the attack
that caused Rotem and Yoav’s injuries was not an
“extrajudicial killing” over which Congress has provided
subject-matter jurisdiction. Nor have the plaintiffs identified
any other basis for our jurisdiction against the foreign-

-- 2 of 24 --

3
government defendants. We therefore vacate the judgment of
the district court with respect to the plaintiffs before this court
and remand for dismissal of those plaintiffs’ claims.
I
A
The Foreign Sovereign Immunities Act of 1976 (“FSIA”)
codified a common-law rule that, for “more than a century and
a half,” had generally exempted foreign sovereigns from the
reach of American courts. Verlinden B.V. v. Central Bank of
Nigeria, 461 U.S. 480, 486 (1983); see Foreign Sovereign
Immunities Act of 1976, Pub. L. No. 94–583, 90 Stat. 2891
(codified as amended at 28 U.S.C. § 1602 et seq.).
This case concerns a statutory exception to that immunity.
In 1996, Congress withdrew foreign sovereign immunity for
lawsuits that seek money damages for personal injury or death
from a state sponsor of terrorism that has engaged in an “act of
torture, extrajudicial killing, aircraft sabotage, hostage taking,
or the provision of material support or resources * * * for such
an act[.]” Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104–132, § 221, 110 Stat. 1214, 1241. This
provision, which is commonly referred to as the “terrorism
exception,” is now codified at 28 U.S.C. § 1605A(a)(1).
Congress also created a cause of action for U.S. citizens,
members of the U.S. armed forces, and U.S. government
employees who have been injured by foreign states’ acts or
sponsorship of terrorism. 28 U.S.C. § 1605A(c). All others
suing under the terrorism exception must rely on state- or
foreign-law causes of action. Fraenkel v. Islamic Republic of
Iran, 892 F.3d 348, 353 (D.C. Cir. 2018); see Owens v.
Republic of Sudan, 864 F.3d 751, 809 (D.C. Cir. 2017), vacated

-- 3 of 24 --

4
on other grounds, Opati v. Republic of Sudan, 590 U.S. 418
(2020).
Three additional preconditions generally must be met for
the terrorism exception to apply. First, the foreign state was
designated a “state sponsor of terrorism at the time [of] the act
* * * or was so designated as a result of such act[.]” 28 U.S.C.
§ 1605A(a)(2)(A)(i)(I). Second, “at the time [of] the act,”
either a victim of the act or the claimant in the suit was an
American national, a member of the U.S. armed forces, or an
employee or contractor for the U.S. government acting within
the scope of their employment. Id. § 1605A(a)(2)(A)(ii). And
third, if “the act occurred in the foreign state against which the
claim has been brought,” the claimant gave the foreign state a
“reasonable opportunity” to arbitrate prior to filing a lawsuit.
Id. § 1605A(a)(2)(A)(iii).
B
On December 14, 2015, Rotem Golan, an Israeli citizen,
and her husband Yoav Golan, an American citizen, were
waiting with others at a bus stop in Jerusalem when a terrorist
deliberately rammed his car into the crowd. Borochov v.
Islamic Republic of Iran, 589 F. Supp. 3d 15, 28–29 (D.D.C.
2022). The car’s impact “hurled” Rotem and Yoav into the bus
stop’s glass wall. Id. at 29. The attacker had an axe in his car
that he “likely intended to use” against those at the bus stop,
but an onlooker shot him before he could inflict any further
harm. Id. The attacker was the only person who died in the
terrorist incident. Id.1
1 For purposes of our jurisdictional analysis, we credit the district
court’s unchallenged factual findings. See Fraenkel, 892 F.3d at 351.

-- 4 of 24 --

5
Rotem and Yoav were both badly injured. Borochov, 589
F. Supp. 3d at 29. Rotem’s legs were lacerated, requiring
stitches, and she suffered a sprained knee ligament. Id. The
injuries caused her to miss two months of her teaching
internship. Id. The car crushed Yoav’s leg and both dislocated
and fractured his shoulder. Id. Yoav and Rotem also “suffered
mental and emotional injuries” from the attack. Id. Several
family members who witnessed their relatives’ pain and
suffering in the aftermath of the attack themselves sustained
mental and emotional injuries.
The district court found that the attacker was acting on
behalf of the terrorist organization Hamas, which praised him
in the wake of the attack as a “son of the Hamas movement.”
Borochov, 589 F. Supp. 3d at 29. The court also found that Iran
supported Hamas “for the past 30 years” through the provision
of massive financial support, including weapons, training, and
“suitcases of money.” Id. at 27–28. The district court further
found that Syria gave Hamas “operational freedom, political
legitimacy, protection, and training[,]” without which “Hamas
could not have undertaken” the attack. Id. at 26–27.
C
On September 24, 2019, Rotem, Yoav, and their family
members sued Iran and Syria, alleging tort claims of, among
other things, battery, assault, intentional infliction of emotional
distress, and aiding and abetting the terrorist attack. See
Second Am. Compl. ¶¶ 89–135. Several of the plaintiffs are
American citizens, and they invoked 28 U.S.C. § 1605A(c).
Others are not. Those Israeli-citizen plaintiffs instead brought

-- 5 of 24 --

6
common-law tort claims. Second Am. Compl. ¶¶ 102, 107,
112, 119, 129.
Neither Iran nor Syria appeared to defend against the
action, so the Clerk entered defaults against them. See Dockets
20–24; see also FED. R. CIV. P. 55(a).
After entry of the defaults, each plaintiff was required to
“establish[] his claim or right to relief by evidence satisfactory
to the court” before the court could enter a default judgment.
28 U.S.C. § 1608(e); see Maalouf v. Islamic Republic of Iran,
923 F.3d 1095, 1113 (D.C. Cir. 2019). Entry of default is
critical for FSIA plaintiffs because foreign state sponsors of
terrorism are typically “unlikely to pay,” Braun v. United
States, 31 F.4th 793, 795 (D.C. Cir. 2022), and a default
judgment qualifies for payment through the U.S. Victims of
State Sponsored Terrorism Fund, 34 U.S.C.
§§ 20144(b)(2)(B), 20144(j)(4).
For the Israeli members of the Golan family bringing tort
claims, District of Columbia choice-of-law rules required the
application of Israeli law as to both liability and damages. See
Borochov, 589 F. Supp. 3d at 37–38; see also Cassirer v.
Thyssen-Bornemisza Collection Found., 596 U.S. 107, 117
(2022) (“A foreign state or instrumentality in an FSIA suit is
liable just as a private party would be. That means the standard
choice-of-law rule must apply.”) (citation omitted).
After the plaintiffs submitted evidence and expert reports,
the district court denied damage awards to all of the Israeli-
citizen plaintiffs except Rotem.
The court began its decision by holding that it had subject-
matter jurisdiction under the FSIA’s terrorism exception for
extrajudicial killings. Borochov, 589 F. Supp. 3d at 34 (citing

-- 6 of 24 --

7
28 U.S.C. § 1605A(a)(1)). The court found that two victims of
the attack were U.S. citizens and both Syria and Iran were
designated state sponsors of terrorism. Id. at 30. It then found
that Iran and Syria had provided material support for
extrajudicial killings by Hamas members. Id. at 32–33. The
court acknowledged that the terrorist attack against Rotem and
Yoav was not an “extrajudicial killing,” since nobody but the
perpetrator died. Id. at 31–32. Nonetheless, the district court
concluded that it had jurisdiction because Iran and Syria had
provided material support for the purpose of conducting
extrajudicial killing of Israelis. Id. at 32–33. Even though no
killing resulted, the court held that jurisdiction attached so long
as the material support was intended to cause an extrajudicial
killing. Id.
On the merits, the district court held that Iran and Syria
were liable for the plaintiffs’ injuries. Borochov, 589 F. Supp.
3d at 35–40. The court noted that the plaintiffs had filed
declarations from Israeli law professors that discussed some of
the relevant bases for liability under Israeli law. Id. at 38–40.
But as to damages, the district court found that the plaintiffs
“fail[ed] to detail how and in what amount Israeli law
compensates the injuries allegedly suffered” by the Israeli-
citizen plaintiffs. Order to Show Cause at 1; see Borochov, 589
F. Supp. 3d at 45–46. For that reason, the district court denied
all the Israeli-citizen plaintiffs but Rotem any recovery.
Borochov, 589 F. Supp. 3d at 47. The district court made an
exception for Rotem because the court viewed “[h]er physical
injuries and severe emotional trauma” as providing a sufficient
basis for awarding damages. Id. at 46–47. The district court
later denied the Israeli-citizen plaintiffs’ motion to amend the
judgment. Order Denying Mot. Amend at 3–4.

-- 7 of 24 --

8
Rotem and Yoav’s Israeli-citizen relatives, to whom we
refer collectively as the Golans, timely appealed the district
court’s denial of a default judgment for damages.
II
We begin with our appellate jurisdiction. The Golans
appeal the district court’s denial of damages. Under 28 U.S.C.
§ 1291, we have jurisdiction to review “all final decisions” of
the district courts. Finality is “to be given a practical rather
than a technical construction.” Gillespie v. United States Steel
Corp., 379 U.S. 148, 152 (1964) (quotation marks omitted); see
Republic Nat. Gas Co. v. Oklahoma, 334 U.S. 62, 67 (1948)
(There is “[n]o self-enforcing formula defining when a
judgment is ‘final[.]’”).
The most important feature of final orders is that they
“end[] the litigation on the merits[.]” Catlin v. United States,
324 U.S. 229, 233 (1945); see Republic Nat. Gas Co., 334 U.S.
at 68 (An order is final when “nothing more than a ministerial
act remains to be done[.]”). The “district court’s intent is a
significant factor” in determining whether the litigation before
it is at an end. Attias v. Carefirst, Inc., 865 F.3d 620, 624 (D.C.
Cir. 2017). So when a district court’s “order states the order of
dismissal is final and appealable[,]” we take that as “[t]he
clearest signal of finality[.]” Wilcox v. Georgetown Univ., 987
F.3d 143, 147 (D.C. Cir. 2021).
Sometimes, the denial of default judgment “simply sets the
stage for continued trial court proceedings[,]” as when a
defendant is likely to appear for trial despite failing to respond
at an earlier stage of the proceedings. See 15A C. WRIGHT &
A. MILLER, FEDERAL PRACTICE & PROCEDURE § 3914.5 (3d
ed.) (April 2023 Update). In that situation, a denial of default
judgment is not an appealable final order under Section 1291.

-- 8 of 24 --

9
See, e.g., Prince v. Ethiopian Airlines, 646 F. App’x 45, 47 (2d
Cir. 2016) (summary order) (denial of default judgment not
final where district court “did not adjudicate all remaining
claims”).
By contrast, in this case, there is every indication that the
denial of default judgment marked the end of the district court
litigation. To start, the district court called its order “final” and
“appealable,” and requested that the Clerk of the Court close
the case. Judgment at 3. The court also entered judgment
consistent with Federal Rule of Civil Procedure 58(a), which is
a clear signal to the plaintiffs that the court had “reached a
‘final decision’ within the meaning of § 1291[,]” such that it
was “time to notice an appeal[.]” Wilcox, 987 F.3d at 146; FED.
R. CIV. P. 58(a) (requiring that a “judgment * * * be set out in
a separate document”). Finally, the court entertained a post-
judgment motion, which would be out of place if the
proceeding were still ongoing. See generally Order Denying
Mot. Amend.
Because this denial of default judgment bore clear indicia
of finality, we have appellate jurisdiction under 28 U.S.C.
§ 1291 to review the district court’s order. See also Monk v.
Secretary of Navy, 793 F.2d 364, 370 (D.C. Cir. 1986) (“We
have jurisdiction to decide [our appellate] jurisdiction” even
when the district court lacked statutory jurisdiction.).
III
In addition to verifying our appellate jurisdiction, we have
an “independent obligation” to assure ourselves both that we
have, and the district court had, subject-matter jurisdiction.
National R.R. Passenger Corp. v. Southeastern Pa. Transp.
Auth., 56 F.4th 129, 134 (D.C. Cir. 2022). Here, subject-matter
jurisdiction exists only if the Golans’ claims fall within one of

-- 9 of 24 --

10
the FSIA’s exceptions to foreign sovereign immunity. These
exceptions are the “sole bas[es] for obtaining jurisdiction over
a foreign state in federal court” in a civil case. Permanent
Mission of India to the United Nations v. City of New York, 551
U.S. 193, 197 (2007) (quoting Argentine Republic v. Amerada
Hess Shipping Corp., 488 U.S. 428, 439 (1989)).
The Golans rely exclusively on the exception codified at
28 U.S.C. § 1605A, which, as relevant here, confers
jurisdiction over a case
in which money damages are sought against a foreign state
for personal injury or death that was caused by an act of
torture, extrajudicial killing, aircraft sabotage, hostage
taking, or the provision of material support or resources
for such an act[.]
28 U.S.C. § 1605A(a)(1).
The terrorist attack that caused the Golans’ injuries did not
involve torture, aircraft sabotage, or hostage taking. So to fall
within the Section 1605A exception, their injuries must have
been “caused by” either “an act of * * * extrajudicial killing”
or “the provision of material support or resources for such an
act[.]” Id. Because the perpetrator did not kill anyone in the
attack that injured the Golans, no extrajudicial killing occurred,
and neither could there have been material support for “such an
act.” As a result, Section 1605A does not provide jurisdiction
and the Golans’ claims must be dismissed.
A
The Golans’ injuries were not “caused by an act of * * *
extrajudicial killing” because the terrorist attack that injured
them did not kill anyone. 28 U.S.C. § 1605A(a)(1); see

-- 10 of 24 --

11
Borochov, 589 F. Supp. 3d at 31. At most, the perpetrator
attempted, but failed, to commit an extrajudicial killing. That
is not enough to confer jurisdiction under Section 1605A.
Our analysis begins and ends with the plain meaning of the
statutory text. The word “killing” refers to an action resulting
in the death of another. See, e.g., Killing, 6 THE OXFORD
ENGLISH DICTIONARY 430 (2d ed. 1989) (“That kills or
deprives of life.”); Kill, BLACK’S LAW DICTIONARY 886 (8th
ed. 2004) (“To end life; to cause physical death.”); Killing, THE
AMERICAN HERITAGE DICTIONARY 701 (2d ed. 1982) (def. 1)
(“Murder; homicide.”); Kill, MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 642 (10th ed. 1993) (def. 1a) (“to
deprive of life”). The Golans have offered no example in
which the word “killing” or the phrase “extrajudicial killing” is
used to refer to an act that did not result in a death. Nor can we
think of one.
Nothing else in the FSIA hints that Congress had
something other than a completed killing in mind. To the
contrary, Congress gave the phrase “extrajudicial killing” the
same meaning in Section 1605A as it bears in the Torture
Victim Protection Act of 1991. See 28 U.S.C. § 1605A(h)(7);
id. § 1350 note; Pub. L. No. 102–256, § 3(a), 106 Stat. 73, 73
(1992). The Torture Victim Protection Act defines an
extrajudicial killing as “a deliberated killing not authorized by
a previous judgment pronounced by a regularly constituted
court[.]” 28 U.S.C. § 1350 note. By requiring an actual
“killing,” Congress closed the door to attempted, but failed,
killings.
The rest of the Torture Victim Protection Act confirms that
“killing” carries its ordinary meaning. The only tort claim
available on behalf of victims of extrajudicial killings is “an
action for wrongful death.” See 28 U.S.C. § 1350 note. The

-- 11 of 24 --

12
Act does not allow any tort claim for injuries arising from an
attempted killing. See Mamani v. Sánchez Bustamante, 968
F.3d 1216, 1233 (11th Cir. 2020) (The Torture Victim
Protection Act’s extrajudicial killing provision “requires, at a
minimum, that there be a considered, purposeful act that takes
another’s life.”). In this way, Congress specifically
incorporated into the FSIA a definition of “extrajudicial
killing” that requires a death.
Including the phrase “act of” before “extrajudicial killing”
changes nothing. Contra Roberts v. Islamic Republic of Iran,
581 F. Supp. 3d 152, 169–170 (D.D.C. 2022). The primary
meaning of an “act” is “something done voluntarily” or a
“deed.” Act, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
11 (10th ed. 1993) (defs. 1a, b) (capitalization modified); Act,
1 THE OXFORD ENGLISH DICTIONARY 123 (2d ed. 1989) (def.
1a) (“A thing done; a deed[.]”). That too connotes completion.
True, the word “act” sometimes refers to the “process of
doing[.]” Act, WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 20 (2002) (def. 4). When used in that sense,
however, it typically appears as part of the phrase “the act,” as
in “in the act” or “the act of.” Id. (“process of doing: action —
now chiefly used in the phrase in the act <caught in the [act]>”)
(capitalization modified); see 1 THE OXFORD ENGLISH
DICTIONARY 123 (2d ed. 1989) (def. 4a) (listing as “arch[aic]”
the definition of act as “[t]he process of doing; acting; action,”
except as used in the phrase “Act of God”) (emphases omitted);
see also Mem. Op. & Order at 20, Burks v. Islamic Republic of
Iran, No. 16-cv-1102 (D.D.C. Sept. 30, 2022), ECF No. 65
(“The primary, and most intuitive, understanding of the word
‘act’ is ‘[s]omething done or performed’ or ‘a deed.’”)
(alteration in original; quoting Act, BLACK’S LAW DICTIONARY
(11th ed. 2019)); Cabrera v. Islamic Republic of Iran, Nos. 19-
cv-3835, 18-cv-2065, 2023 WL 1975091, at *10 (D.D.C. Jan.

-- 12 of 24 --

13
27, 2023) (“[I]n common parlance, one uses the construction
‘in the act of’ to connote the process of doing something, while
‘an act of’ typically references an act or occurrence.”).
That the perpetrator died does not suffice. An onlooker
shot the perpetrator in self-defense, Borochov, 589 F. Supp. 3d
at 28–29, a killing that was not undertaken, much less
“deliberated,” by Syria, Iran, or their confederates. Nor did the
shooting cause Yoav and Rotem’s injuries. See id.; Kilburn v.
Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123,
1128 (D.C. Cir. 2004) (proximate causation required).
To be sure, in applying the FSIA’s terrorism exception,
this court gives significant weight to Congress’s purpose “to
bring state sponsors of terrorism * * * to account for their
repressive practices” by preventing them “from escaping
liability for their sins.” Han Kim v. Democratic People’s
Republic of Korea, 774 F.3d 1044, 1048 (D.C. Cir. 2014); id.
(Congress’s goal was “punish[ing] foreign states who have
committed or sponsored [terrorist] acts and deter[ring] them
from doing so in the future.”) (quoting Price v. Socialist
People’s Libyan Arab Jamahiriya, 294 F.3d 82, 88 (D.C. Cir.
2002)). Because of the terrorism exception’s broad purpose,
we have interpreted ambiguities in its statute of limitations
“flexibly and capaciously.” Van Beneden v. Al-Sanusi, 709
F.3d 1165, 1167 (D.C. Cir. 2013).
Here, though, there is no relevant ambiguity that would
allow us to hold that “killing” means “no killing.” While the
attack on Rotem and Yoav was indisputably heinous, it was not
an “extrajudicial killing” within the meaning of Section
1605A(a)(1).
Given that plain text, we must hew to the terrorism
exception’s ordinary meaning. “[E]xplicit waivers of

-- 13 of 24 --

14
sovereign immunity are narrowly construed ‘in favor of the
sovereign’ and are not enlarged ‘beyond what the [statutory]
language requires.’” World Wide Minerals, Ltd. v. Republic of
Kazakhstan, 296 F.3d 1154, 1162 (D.C. Cir. 2002) (quoting
Library of Congress v. Shaw, 478 U.S. 310, 318 (1986)); see
McKesson Corp. v. Islamic Republic of Iran, 672 F.3d 1066,
1075 (D.C. Cir. 2012) (“The FSIA established a broad grant of
immunity for foreign sovereigns that can only be abrogated by
one of the statute’s narrowly drawn exceptions.”). Faithful
adherence to the text is critical because waivers of foreign
sovereign immunity involve complex and delicate foreign-
policy judgments—decisions that fall outside the judicial
wheelhouse. See Opati, 590 U.S. at 421 (citing Republic of
Austria v. Altmann, 541 U.S. 677, 689 (2004)). The courts, in
other words, should not open the door to litigation against
foreign governments that the Political Branches have not
clearly authorized. Cf. Kiobel v. Royal Dutch Petroleum Co.,
569 U.S. 108, 115–116 (2013) (interpreting the Alien Tort
Statute to avoid “adopt[ing] an interpretation of U.S. law that
carries foreign policy consequences not clearly intended by the
political branches”).
B
In exercising jurisdiction, the district court relied on
Section 1605A’s waiver of sovereign immunity for designated
foreign governments that provide “material support or
resources for” an extrajudicial killing. 28 U.S.C.
§ 1605A(a)(1); see Borochov, 589 F. Supp. 3d 32–34. The
court reasoned that, even if no killing ultimately results, a
foreign state could still be held responsible if it provided
material resources intended for an attempted killing. That

-- 14 of 24 --

15
reading is foreclosed by a full reading of the statutory text and
context.
1
Section 1605A’s text does not support expanding the
material-support provision to cover attempted but uncompleted
extrajudicial killings. Remember that Section 1605A(a)(1)
waives immunity from suit for injuries resulting from “the
provision of material support or resources for such an act[.]”
28 U.S.C. § 1605A(a)(1) (emphasis added). In that way, the
provision creates secondary liability for governments that aid
“such an act” listed earlier in the sentence—that is, a completed
act of torture, extrajudicial killing, aircraft sabotage, or hostage
taking.
After all, “support” just means “assist[ance]” or “help” in
an action; it does not change what the baseline action is.
Support, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
1184 (def. 2b) (10th ed. 1997) (capitalization modified); see
Support, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
2297 (def. 2a) (2002) (“[t]o uphold by aid or countenance”); 17
THE OXFORD ENGLISH DICTIONARY 258 (def. 1a) (2d ed. 1989)
(“assistance, countenance, backing”).
The provision of “resources” means the same thing: A
resource is a “source of supply or support[.]” Resource,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1934
(def. 1a) (2002) (emphasis added); see Resource, MERRIAM-
WEBSTER’S COLLEGIATE DICTIONARY 997 (def. 1a) (10th ed.
1997) (“a source of supply or support”); Resource, 13 THE
OXFORD ENGLISH DICTIONARY 731 (def. 2a) (2d ed. 1989)
(“Possibility of aid or assistance.”).

-- 15 of 24 --

16
The law has long held persons liable for assisting or
supporting another’s unlawful act under the rubric of aiding-
and-abetting liability. And when, as here, Congress draws on
a common-law concept like aiding-and-abetting liability, we
presume that the statutory term “share[s] fundamental
attributes of common law torts” absent an indication to the
contrary. United States v. Honeywell Int’l, Inc., 47 F.4th 805,
814 (D.C. Cir. 2022).
“[A]iding and abetting is an ancient criminal law doctrine
that has substantially influenced its analog in tort.” Twitter,
Inc. v. Taamneh, 598 U.S. 471, 488 (2023) (quotation marks
omitted). “[T]he basic ‘view of culpability’ that animates the
doctrine is straightforward: ‘A person may be responsible for
a crime he has not personally carried out if he helps another to
complete its commission.’” Id. (quoting Rosemond v. United
States, 572 U.S. 65, 70 (2014)).
As Taamneh and Rosemond established, a completed
crime is necessary for aiding-and-abetting liability to attach.
Taamneh, 598 U.S. at 488; Rosemond, 572 U.S. at 70; accord
United States v. Hansen, 599 U.S. 762, 771 (2023) (“[L]iability
for aiding and abetting requires that a wrongful act be carried
out[.]”). That is, a defendant can be found guilty of aiding and
abetting a crime only if someone else actually committed the
underlying crime. See W. LAFAVE, SUBSTANTIVE CRIMINAL
LAW § 13.3(c) (Oct. 2023 Update) (“[T]he guilt of the principal
must be established at the trial of the accomplice as a part of
the proof on the charge against the accomplice. If the acts of
the principal of the first degree are found not to be criminal,
then the accomplice may not be convicted.”); Gray v. United
States, 260 F.2d 483, 484 (D.C. Cir. 1958) (holding that, in an
aiding-and-abetting trial, it must “be established that the act
constituting the offense was in fact committed by someone”).

-- 16 of 24 --

17
The requirement of a completed crime dates back centuries
to the common law, which provided that “an accessory could
not be convicted without the prior conviction of the principal
offender.” Standefer v. United States, 447 U.S. 10, 15 (1980)
(citing 1 M. HALE, PLEAS OF THE CROWN *623–624); W.
LAFAVE, SUBSTANTIVE CRIMINAL LAW § 13.1(d)(3) (“[A]t
common law, * * * conviction of the principal was an absolute
prerequisite[.]”).
Civil aiding-and-abetting liability follows the same rule:
an accomplice is liable only if the principal actually completes
the tort. See Taamneh, 598 U.S. at 494 (“[T]ort law imposes
liability only when someone commits an actual tort; merely
agreeing to commit a tort or suggesting a tortious act is not,
without more, tortious.”); Halberstam v. Welch, 705 F.2d 472,
478 (D.C. Cir. 1983) (Liability arises only if the defendant
“knowingly gave substantial assistance to someone who
performed wrongful conduct[.]”) (quotation marks omitted);
id. at 487–488 (“[T]he party the defendant aids must perform a
wrongful act that causes an injury[.]”); see also Restatement
(Second) of Torts § 876 (AMERICAN LAW INST. 1976). For
instance, we have held that aiding-and-abetting liability for
civil violations of securities laws requires that “another party
has committed a securities law violation.” Investors Res. Corp.
v. Securities & Exchange Comm’n, 628 F.2d 168, 178 (D.C.
Cir. 1980). There is no established aiding-and-abetting
liability for uncompleted torts at common law. Nor is there
liability for attempted but failed torts. See DOBBS’ LAW OF
TORTS § 4 (May 2023 Update) (“Tort law * * * would impose
liability only if harm results.”); Cenco Inc. v. Seidman &
Seidman, 686 F.2d 449, 457 (7th Cir. 1982) (Posner, J.)
(“[T]here is no concept of an inchoate tort[.]”).
Throughout the history of this Nation, the common law has
been settled that liability attaches only if a defendant “aided

-- 17 of 24 --

18
and abetted * * * another * * * in the commission of the
actionable wrong—here, an act of * * * terrorism.” Taamneh,
598 U.S. at 495. And Section 1605A is explicit that the only
actionable wrongs are completed instances of the four
enumerated terrorist acts. 28 U.S.C. § 1605A(a)(1).
So understood, the words “material support and resources
for such an act” predicate the sovereign immunity waiver on
one of the four principal acts having occurred. But none did in
this case. Therefore, Section 1605A(a)(1)’s material-support
provision does not apply.
2
To bolster their broader reading of Section 1605A(a)(1),
the Golans, like the district court below, rely entirely on the
word “for.” See Golan Supp. Br. 3–4; Borochov, 589 F. Supp.
3d at 32. They claim that providing “material support or
resources for such an act[,]” 28 U.S.C. § 1605A(a)(1)
(emphasis added), refers to the “intent” behind the provision of
resources, rather than the result, Golan Supp. Br. 4.
The word “for,” by itself, cannot bear the weight the
Golans place on it. That is because “for” does not necessarily
refer to intent; it can instead refer to the cause or instigation of
an act, or something contributing to the act’s occurrence. See
For, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 886
(2002) (def. 8a) (“because of” or “on account of”); For,
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 454 (10th ed.
1993) (second entry) (similar); For, 2 THE OXFORD ENGLISH
DICTIONARY 23–24 (2d ed. 1989) (def. 9a) (similar). That
causal understanding applies equally when speaking of
material support for an act of terrorism. Remember, an “act”
is “[a] thing done.” Act, 1 OXFORD ENGLISH DICTIONARY 123
(2d ed. 1989) (def. 1a). Because the word “act” commonly

-- 18 of 24 --

19
indicates a deed that is complete, the word “for” naturally
refers to support that causes or facilitates that terrorist act,
rather than just the intent behind a monetary or resource
contribution.
To be sure, “for” can denote an “intended goal,” as in
saving for college. For, MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY 454 (10th ed. 1993) (defs. 1a, 1b); see For,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 886
(2002) (defs. 2a, 2e) (“as a preparation toward” or “with the
purpose or object of”); For, 2 THE OXFORD ENGLISH
DICTIONARY 23–24 (2d ed. 1989) (def. 8a) (“With a view to;
with the object or purpose of; as preparatory to.”).
Some district courts, including the district court in this
case, have recognized this ambiguity and relied on Van
Beneden to construe it in favor of plaintiffs. See, e.g.,
Borochov, 589 F. Supp. 3d at 32; Cabrera v. Islamic Republic
of Iran, No. 18-cv-2065-JDB, 2023 WL 1975091, at *7
(D.D.C. Jan. 27, 2023).
But Van Beneden concerned Section 1605A(b), a non-
jurisdictional statute of limitations. See 709 F.3d at 1166–
1177; Owens, 864 F.3d at 804 (“We therefore hold that the
limitation period in § 1605A(b) is not jurisdictional.”);
Maalouf, 923 F.3d at 1108 (same). We have never interpreted
the FSIA’s jurisdictional requirements so flexibly. See World
Wide Minerals, 296 F.3d at 1162 (“In general, explicit waivers
of sovereign immunity are narrowly construed[.]”); see also
Federal Republic of Germany v. Philipp, 592 U.S. 169, 184
(2021) (“We interpret the FSIA as we do other statutes
affecting international relations: to avoid, where possible,
producing friction in our relations with [other] nations[.]”)
(quotation marks omitted).

-- 19 of 24 --

20
In that regard, the district court’s reading would broadly
expand Congress’s waiver of sovereign immunity to include
not just attempted-but-failed killings, but also providing
advance funding for attacks that never occur at all. See Oral
Arg. Tr. 26:10–27:2 (the court noting that a state could give
money to a terrorist for a particular attack, yet the terrorist
could use it for something else). Whatever the ambiguities of
“for,” the tiebreaker for any ambiguity in an FSIA
jurisdictional requirement is “in favor of the sovereign[.]”
World Wide Minerals, 296 F.3d at 1162.
Statutory context also forecloses finding jurisdiction based
on material support provided for an attempted, but failed,
extrajudicial killing.
To start, the Golans’ reading would write an illogical
asymmetry into Section 1605A. A foreign sovereign could be
sued if it supported someone else’s attempted extrajudicial
killing. But it would be immune from suit if it directly
attempted the extrajudicial killing itself. The Golans offer no
reason why Congress would have wanted to encourage terrorist
states to keep their extrajudicial killings in-house. Neither have
they identified any other reason Congress would have desired
such a lopsided liability regime.
Furthermore, the Golans’ reading of Section 1605A would
place challenging factual inquiries at the threshold of every
material support case. For example, if “for” requires proof of
intent, then district courts would have to determine a foreign
government’s subjective intent in providing weapons or money
to terrorist groups. That is a step our cases have repeatedly
eschewed. See Owens, 864 F.3d at 799; Kilburn, 376 F.3d at
1130. Money is fungible, and “material support ‘is difficult to
trace.’” Owens, 864 F.3d at 799 (quoting Kilburn, 376 F.3d at
1128). Making our jurisdiction contingent on the intent behind

-- 20 of 24 --

21
a particular payment, shipment, or transfer “would as a
practical matter eliminate * * * liability except in cases in
which the [defendant] was foolish enough to admit [its] true
intent” or specifically tie its support to a single pre-planned
terrorist act. Id. (quoting Boim v. Holy Land Found. for Relief
& Dev., 549 F.3d 685, 698–699 (7th Cir. 2008)).
By contrast, if “for” speaks to causation of the completed
act, district courts need only determine whether a foreign
government’s material support was a proximate cause of a
completed killing. See Owens, 864 F.3d at 799.
In addition, Section 1605A requires a district court to hear
a claim if it finds that:
• The foreign state was designated as a state sponsor of
terrorism “at the time the act described in paragraph
(1) occurred,” or that the government was so
designated “as a result of such act,” 28 U.S.C.
§ 1605A(a)(2)(A)(i);
• “[T]he claimant or the victim was, at the time the act
described in paragraph (1) occurred,” a U.S. national,
a member of the U.S. armed forces, or an employee of
the U.S. government, id. § 1605A(a)(2)(A)(ii); and
• If “the act occurred in the foreign state against which
the claim has been brought,” the claimant gave the
foreign government a chance to arbitrate before filing
suit, id. § 1605A(a)(2)(A)(iii).
Each of these findings requires a threshold factual
determination as of the time an “act described in paragraph (1)
occurred[.]” 28 U.S.C. § 1605A(a)(2)(A)(i)–(iii); see

-- 21 of 24 --

22
Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 13–14
(D.C. Cir. 2015) (factual findings are jurisdictional).
But what counts as an “act described in paragraph (1)”? If
the immunity exception in paragraph (1) is triggered only by
completed “act[s] of torture, extrajudicial killing, aircraft
sabotage, [or] hostage-taking,” then even when a plaintiff’s
claim is based on a state’s “material support” for such a
completed act, the plaintiff will ordinarily have to identify only
the time and location of the completed terrorist activity. And
it will not be hard for the plaintiff to specify her own nationality
at that time, whether the defendant state was designated as a
state sponsor of terrorism, and so on.
But if Section 1605A(a)(1)’s immunity waiver can be
triggered not just by completed “acts” of killing, torture,
aircraft sabotage, or hostage taking, but also by a foreign state’s
material support for such acts even when those acts never
occur, then that “material support” would by itself have to
constitute the relevant “act” for purposes of Section
1605A(a)(2)(A). In that case, the district court would need to
focus at the outset of the case on the “material support” for
terrorist acts, rather than the acts themselves. Yet proving the
time and place at which money, weapons, or other forms of
support changed hands, perhaps over the course of years or
decades, would be an onerous and unwieldy task. The
plaintiffs’ proposed reading, in other words, would ensure that
“few suits like this could ever proceed[.]” Han Kim, 774 F.3d
at 1048.
Treating material support itself as the relevant “act” for
waiving sovereign immunity would be especially knotty when
it comes to the requirement that a plaintiff “afford[] the foreign
state a reasonable opportunity to arbitrate the claim” in “a case
in which the act occurred in the foreign state against which the

-- 22 of 24 --

23
claim has been brought[.]” 28 U.S.C. § 1605A(a)(2)(A)(iii). If
“act” refers to a completed act of terrorism, then all this
requirement means is that a plaintiff must first seek to arbitrate
with a foreign state before suing based on terrorist acts
committed within its own territory. That is a plausible
accommodation by Congress of foreign states’ interests in
territorial integrity that are not implicated if the act of terrorism
occurs in another state (as in this case).
But if “act” includes that foreign state’s “material
support,” then plaintiffs suing under Section 1605A would
have to go to the foreign state they seek to sue and ask to
arbitrate. That is because some of that state’s material support
would almost inevitably occur within the state’s own territory.
For example, the district court found in this case that Syria
“host[ed]” Hamas in its capital of Damascus, giving it “an
operational base” from which Hamas “carried out its most
lethal suicide bombings through Syrian operatives[.]”
Borochov, 589 F. Supp. 2d at 26. The district court also found
that Hamas operatives “received training in Iran[,]” and that
Iran sent Hamas “arms and funding[,]” including some
weapons that were manufactured in Iran. Id. at 27–28. As a
result, under the Golans’ reading, the statute required them to
seek to arbitrate their claims with Syria and Iran. Yet we see
nothing in Section 1605A’s text, structure, or purpose that
remotely suggests that Congress intended to compel terrorism
victims like the Golans to seek arbitration with foreign states
that footed the bill for attacks outside those states’ borders.
IV
No one can deny the pain and suffering that the terrorist
attack visited on Rotem, Yoav, and their family members, or
the depravity of the terrorist act itself. But Congress and the
President—those whom the Constitution charges with the

-- 23 of 24 --

24
conduct of foreign relations—chose to extend the power of the
federal courts to claims against the perpetrators of just four
terrorist acts, and to foreign governments that aided the
execution of those acts. None of those four acts occurred here.
As a matter of text and context, the Golans’ claims fall outside
of Section 1605A’s scope. When it comes to waivers of foreign
sovereign immunity, courts can go only where the Political
Branches have trod. If Congress wishes more expansive
coverage for acts of terrorism, it can amend the statute to permit
it. But we cannot make that call.
Because there has been no waiver of sovereign immunity
in this context, we lack jurisdiction. We therefore vacate the
judgment of the district court with respect to the Golans and
remand for dismissal of the Golans’ claims.2
So ordered.
2 This court appointed Catherine E. Stetson as amicus curiae to
defend the district court’s judgment. She was assisted by student
counsel Samuel Gerstemeier, Riley Segars, and Walker Fortenberry
in briefing the case, and by Andrew Nell and Ben Buell in briefing
and arguing it. Ms. Stetson has ably discharged her duty, and the
court greatly appreciates Ms. Stetson’s and the student counsel’s
service.

-- 24 of 24 --