Darioush Radmanesh v. Islamic Republic of Iran and Iranian (islamic ) Revolutionary Guard Corps

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 5, 2021 Decided August 3, 2021
No. 19-7121
DARIOUSH R ADMANESH ,
APPELLANT
v.
ISLAMIC R EPUBLIC OF IRAN AND IRANIAN (ISLAMIC )
R EVOLUTIONARY GUARD C ORPS ,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-01708)
Michael A. Yanof argued the cause and filed the briefs for
appellant. Marc C. Lenahan, entered an appearance.
Diala Alqadi, Student Counsel, argued the cause for
amicus curiae in support of the District Court=s judgment.
With her on the brief were Erica Hashimoto, Director, and
Lauren Bateman, Supervising Attorney, both appointed by the
court, and Jasdeep Kaur, Student Counsel.
Before: R OGERS and KATSAS , Circuit Judges, and
S ENTELLE, Senior Circuit Judge.

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Opinion of the Court filed by Circuit Judge KATSAS .
KATSAS , Circuit Judge: The Foreign Sovereign
Immunities Act permits United States citizens to sue
designated state sponsors of terrorism for acts of torture or
hostage taking. We consider whether the Islamic Republic of
Iran, a designated state sponsor of terrorism, committed such
acts against appellant Darioush Radmanesh.
I
A
This case arises from hardships that Radmanesh, a United
States citizen, endured while living in Iran between 1978 and
1986. For purposes of this case, we will assume the following
uncontroverted allegations, which are taken from Radmanesh’s
declaration in support of his motion for a default judgment.
Radmanesh was born in the United States in 1969. His
mother was an American citizen, and his father was an Iranian
exchange student. In 1978, the family moved to Iran. Shortly
thereafter, the Iranian Revolution fueled virulent anti-
American sentiment. In 1979, armed members of the Islamic
Revolutionary Guard Corps (IRGC)—a military arm of the
Iranian government—stormed into the family home and
accused Radmanesh’s father of treason. After his father was
summarily convicted, the family was threatened with execution
unless they remained in Iran and the father trained Iranians to
work as engineers.
Over the next several years, Radmanesh was targeted for
abuse as an American. He was forced to attend an Iranian-run
school, where his classmates would push him to the ground,
spit on him, and kick him while chanting “Death to
Americans.” Members of the Basij—a youth paramilitary

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organization operating under the IRGC—often beat
Radmanesh on his way home from school and sometimes
urinated on him. One beating sent Radmanesh to the hospital
with broken ribs, lacerations, and a concussion. At home,
Radmanesh watched the IRGC abuse his mother for being
American. At age fifteen, Radmanesh was expelled from
school for refusing to step on an American flag.
Around September 1986, Radmanesh was conscripted into
the Iranian army to fight in the Iran-Iraq War. During the next
three months, he went through arduous military training, was
sent into combat, and saw many comrades killed in action.
Before one mission to destroy an Iraqi ammunition depot,
Radmanesh’s commander told him that he was being sent to
die as a martyr for Islam. During the mission, a commander
forced Radmanesh at gunpoint to shoot and kill a sleeping Iraqi
soldier at point-blank range.
Radmanesh survived the mission and was sent back to the
front lines. In December 1986, he was found on the battlefield
lying delirious in a trench. He was taken to a hospital,
diagnosed with post-traumatic stress disorder, and sent home
for two weeks to recover. While on leave, Radmanesh fled and
eventually escaped from Iran and returned to the United States.
To this day, he continues to suffer physical, mental, and
emotional scars from his years in Iran.
B
In 2017, Radmanesh filed this case against Iran and the
IRGC. The complaint raises substantive claims for hostage
taking, torture, assault, battery, false imprisonment, and
intentional infliction of emotional distress. Neither defendant

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appeared, and Radmanesh voluntarily dismissed his claims
against the IRGC after being unable to serve it.
Radmanesh moved for a default judgment against Iran.
The district court denied the motion and dismissed the
complaint based on foreign sovereign immunity. The court
reasoned that Radmanesh’s declaration, which repeated the
allegations in his complaint, failed to establish that this case
falls within the terrorism exception to the FSIA.
Radmanesh appealed. We appointed Erica Hashimoto of
the Georgetown University Law Center as an amicus to defend
the district court’s judgment. She and her student counsel have
ably discharged their responsibilities.
II
Under the FSIA, a foreign state “shall be immune from the
jurisdiction of the courts of the United States” unless a statutory
exception to the immunity applies. 28 U.S.C. § 1604.
Radmanesh invokes the FSIA’s terrorism exception. As
relevant here, it provides that a foreign state is not immune
from a claim for money damages “for personal injury or death
that was caused by an act of torture … [or] hostage taking”
committed by an official of the foreign state “acting within the
scope of his or her office.” Id. § 1605A(a)(1). Moreover, the
foreign state must have been designated as a state sponsor of
terrorism when the acts giving rise to the claim occurred. Id.
§ 1605A(a)(2)(A)(i)(I). A district court may enter default
judgment against an absent foreign sovereign only if the
plaintiff establishes his claim “by evidence satisfactory to the
court.” Id. § 1608(e). And because subject-matter jurisdiction
“turns on the existence of an exception to foreign sovereign
immunity,” the plaintiff must also establish “that immunity is
unavailable.” Verlinden B.V. v. Cent. Bank of Nigeria, 461

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U.S. 480, 493 n.20 (1983).1 We review de novo a district
court’s legal determination regarding the scope of an immunity
exception. See Price v. Socialist People’s Libyan Arab
Jamahiriya, 294 F.3d 82, 91 (D.C. Cir. 2002).
Radmanesh has not established that any of the conduct he
attributes to Iran falls within the terrorism exception. For
starters, at least some of that conduct occurred before January
23, 1984, when Iran was designated as a state sponsor of
terrorism. See Determination Pursuant to Section 6(i) of the
Export Administration Act of 1979—Iran, 49 Fed. Reg. 2,836
(Jan. 23, 1984). Moreover, some of it may not involve Iranian
officials acting within the scope of their authority. And in any
event, the acts alleged do not constitute hostage-taking or
torture. Our analysis focuses on this final point.
A
The FSIA incorporates the definition of “hostage-taking”
from Article I of the International Convention Against the
Taking of Hostages, which states:
Any person who seizes or detains and threatens to kill,
to injure or to continue to detain another person … in
order to compel a third party … to do or abstain from
doing any act as an explicit or implicit condition for
the release of the hostage commits the offence of …
hostage-taking.
International Convention Against the Taking of Hostages art.
1, Dec. 17, 1979, 1316 U.N.T.S. 205, 207; 28 U.S.C.
1 Conversely, because the FSIA’s 10-year statute of limitations
is a non-jurisdictional affirmative defense, we may not raise it on
Iran’s behalf. Maalouf v. Islamic Republic of Iran, 923 F.3d 1095,
1108, 1113 (D.C. Cir. 2019).

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§ 1605A(h)(2). This definition “does not proscribe all
detentions,” but only those intended “to force a third party
either to perform an act otherwise unplanned or to abstain from
one otherwise contemplated so as to ensure the freedom of the
detainee.” Price, 294 F.3d at 94.
Radmanesh raises two theories of hostage-taking. First, he
contends that he was taken hostage when forced to remain in
Iran in order to compel his father to train engineers. But we
have previously held that “a prohibition on international travel
… would not constitute ‘hostage taking’” because it does not
amount to “seizure” or “detention” under “any ordinary
understanding of those terms.” Mohammadi v. Islamic
Republic of Iran, 782 F.3d 9, 16 (D.C. Cir. 2015). Radmanesh
makes no attempt to distinguish this precedent.2 Second,
Radmanesh contends that he was taken hostage when his
military commander ordered him to kill an Iraqi soldier or else
be killed himself. This theory lacks “[t]he essential element”
of a “third-party compulsion.” Simpson v. Socialist People’s
Libyan Arab Jamahiriya, 326 F.3d 230, 234–35 (D.C. Cir.
2003). For the allegation is that Radmanesh was threatened so
that he, not a third party, would shoot an enemy soldier.
2 After the district court dismissed his claims, Radmanesh filed
a motion to amend the judgment, which made new allegations that
he had been not only forced to remain in Iran, but also placed under
house arrest. The district court denied the motion and declined to
consider these new allegations. Because Radmanesh does not
challenge this ruling on appeal, we also do not consider them.

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B
The FSIA adopts the definition of “torture” in the Torture
Victim Protection Act of 1991, which states:
“[T]orture” means any act, directed against an
individual in the offender’s custody or physical
control, by which severe pain or suffering (other than
pain or suffering arising only from or inherent in, or
incidental to, lawful sanctions), whether physical or
mental, is intentionally inflicted on that individual for
such purposes as obtaining from that individual or a
third person information or a confession, punishing
that individual for an act that individual or a third
person has committed or is suspected of having
committed, intimidating or coercing that individual or
a third person, or for any reason based on
discrimination of any kind.
Pub. L. No. 102-256, § 3(b)(1), 106 Stat. 73, 73 (1992); 28
U.S.C. § 1605A(h)(7).
This definition sets forth four elements. First, the pain or
suffering must be inflicted while the victim is in the offender’s
“custody or physical control.” Second, the pain or suffering
must be “directed against” the individual, i.e., “the defendant
must have targeted the victim.” Kim v. Democratic People’s
Republic of Korea, 774 F.3d 1044, 1050 (D.C. Cir. 2014).
Third, the purpose for inflicting the pain or suffering must be
one of those mentioned in the statute—to obtain information or
a confession, to punish, to intimidate or coerce, or to
discriminate—or “any non-enumerated purpose … similar in

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nature to those mentioned.” Price, 294 F.3d at 93. Fourth, the
pain or suffering inflicted must be “severe.”
In Price, we explained that the severity requirement is both
demanding and important. Invoking plain meaning and the
TVPA’s legislative history, we held that torture requires
“extreme, deliberate and unusually cruel practices, for
example, sustained systematic beating, application of electric
currents to sensitive parts of the body, and tying up or hanging
in positions that cause extreme pain.” 294 F.3d at 92–93
(cleaned up). Torture covers only conduct “likely already
illegal under most domestic legal systems.” Id. at 92. It does
“not automatically result whenever individuals in official
custody are subjected even to direct physical assault.” Id. at 93
(“Not all police brutality, not every instance of excessive force
used against prisoners, is torture under the FSIA.”). This
“severity requirement is crucial to ensuring that the conduct
proscribed by the … TVPA is sufficiently extreme and
outrageous to warrant the universal condemnation that the term
‘torture’ both connotes and invokes.” Id. at 92.
Our cases have applied the severity requirement with
rigor. In Price, the plaintiffs alleged that they had been
“kicked, clubbed and beaten” by prison guards during custodial
interrogations. 294 F.3d at 86 (cleaned up). We held that
without further “useful details about the nature of the kicking,
clubbing, and beatings”—such as “their frequency, duration,
the parts of the body at which they were aimed, and the
weapons used to carry them out”—we could not determine
whether the beatings were severe enough to satisfy the FSIA’s
“rigorous definition of torture.” Id. at 93–94. Likewise, in
Simpson, the plaintiff alleged that she had been interrogated,
held incommunicado, threatened with death, forcibly separated
from her husband, and prevented from learning of his welfare
and whereabouts. 326 F.3d at 234. We held that these

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allegations “certainly reflect a bent toward cruelty,” but were
“not in themselves so unusually cruel or sufficiently extreme
and outrageous as to constitute torture” under the FSIA. Id.
Radmanesh’s claims are sympathetic, but the abuse
inflicted upon him does not amount to torture under these
standards. To begin, Radmanesh alleges that he “was often
pushed to the ground, spat upon, and then kicked” by Iranian
students chanting “Death to Americans.” App’x 99. These
allegations are less severe than those held insufficient in Price
and Simpson. Radmanesh further alleges that members of the
Basij shouted anti-American slogans at him, attacked him, and
sometimes pushed him to the ground and urinated on him as he
walked home from school. These general allegations are also
no worse than those in Price and Simpson. In addition, the
allegation that the Basij “corner[ed]” Radmanesh “on his way
home from school,” id. at 100, cannot fairly be described as
involving the kind of “custody or physical control” normally
associated with torture. Radmanesh comes closer with a
specific allegation that, on one occasion, the Basij punched him
in the face, knocked him to the ground, and kicked him all over
his body so violently that he required hospitalization and
treatment for cracked ribs, contusions, lacerations, and a
concussion. Id. To be sure, this describes a significant assault
inflicting significant injuries. But Radmanesh does not point
us to any case holding that a one-time, outdoor beating like this
is both severe enough, and involves sufficient custody or
physical control, to amount to torture. In fact, at oral argument,
Radmanesh’s counsel conceded that this one incident did not
by itself amount to torture.3
Radmanesh relies most heavily on his experiences in the
Iranian military, especially what he characterizes as a kill-or-
3 Radmanesh alleges that his mother was routinely mocked and
cursed and, “on occasion,” was beaten. App’x 100. This allegation

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be-killed order. But Radmanesh does not allege the necessary
intentionality—that Iran conscripted him, sent him into battle,
and ordered him to kill an enemy soldier for the purpose of
inflicting severe pain and suffering on him. Instead, the far
more likely inference is that Iran took these actions as part of
an ongoing war with Iraq—and that Radmanesh suffered as an
“unavoidable incident” to that end. Price, 294 F.3d at 93. Nor
do Radmanesh’s wartime experiences meet the severity
requirement for torture. Conscription is hardly “extreme and
outrageous” conduct that warrants “universal condemnation.”
Id. at 92. To the contrary, it is constitutional under United
States law, United States v. Williams, 302 U.S. 46, 48 (1937),
and not uncommon throughout the world.4 And orders to use
military force are the natural consequence of wartime
conscription. Radmanesh objects that killing a sleeping enemy
soldier constitutes a war crime. But he cites no authority for
that proposition, which is contrary to the views of the
Department of Defense. See Dep’t of Def., Law of War Manual
220–21 (2015) (“combatants who are standing in a mess line,
engaged in recreational activities, or sleeping remain the lawful
object of attack”). What Radmanesh endured during the Iran-
Iraq War was thus no different from the hardships that soldiers
routinely suffer during wartime. And it was decidedly different
is too vague to establish the severity requirement as elaborated in
Price and Simpson. In addition, Radmanesh does not allege that his
mother was abused for the purpose of causing him severe pain or
suffering.
4 Countries including Brazil, Greece, Israel, Mexico, and South
Korea currently conscript members of their armed forces. The World
Factbook: Military Service Age and Obligation, CIA (2021),
https://www.cia.gov/the-world-factbook/field/military-service-age-
and-obligation.

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from the kinds of extreme practices that we have said would
amount to torture.
III
Because the terrorism exception to the FSIA does not
apply to this case, the district court properly dismissed the case
for lack of subject-matter jurisdiction.
Affirmed.

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