K.e.f.v., by and Through Her Next Friend Hortense Vickers v. Islamic Republic of Iran

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 2024 Decided April 29, 2025
No. 23-7076
K.E.F.V., BY AND THROUGH HER NEXT FRIEND HORTENSE
VICKERS,
APPELLANT
v.
ISLAMIC REPUBLIC OF IRAN,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-03835)
Grace W. Knofczynski argued the cause for
appellant. With her on the briefs were Joshua D. Branson,
Andrew E. Goldsmith, Jimmy A. Ruck, and Chase H. Robinett.
Garfield McIntyre, Student Counsel, argued the cause as
amicus curiae in support of the District Court’s judgment. On
the brief was Thomas V. Burch, appointed by the court.
Before: WALKER and GARCIA, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WALKER.

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WALKER, Circuit Judge: Iran provided material support
for the Taliban attack that killed thirty Americans, including a
Navy special forces operator named Kraig Vickers. His family
then sued Iran. That suit is expressly authorized by the Foreign
Sovereign Immunities Act.
Most of the Vickers family prevailed in the district court.
It awarded damages to compensate them for, among other
things, Vickers’ enduring absence from their lives. But the
district court dismissed the claim of one of the Vickers
children — K.E.F.V. — because she was born two months
after her father’s death.
That dismissal finds no support in the text of the FSIA.
Nor does it comport with well-established principles of state
tort law. Regardless of when K.E.F.V. was born, she is Kraig
Vickers’ daughter; she has been deprived by Iran of his comfort
and society; and she is entitled to compensation for that injury.
We therefore reverse the district court.
I
On a March night in 2010, a SEAL Team flew deep into
Taliban territory, toward a remote valley in the Hindu Kush.
With no place to land their helicopters, the team rappelled into
a gorge and crossed rugged mountains for more than six hours
in the dark. Finally, they reached the compound of their high-
value target, a Taliban commander who had already killed
multiple Americans and who was expected to kill again soon.1
1 Eric Blehm, Fearless: The Undaunted Courage and Ultimate
Sacrifice of Navy SEAL Team SIX Operator Adam Brown 199-213
(2012).

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In the ensuing firefight, a thirteen-year veteran from
Kokomo named Kraig Vickers held his position, even after
being shot. He deployed a grenade and exchanged gunfire
from an exposed rooftop to cover the rescue of a mortally
wounded teammate. For his courage in “complete disregard
for his own safety” while “under effective enemy fire,” Vickers
was awarded the Silver Star. Kraig M. Vickers Silver Star
Citation, https://perma.cc/U3EK-GDRD.
The next year, Vickers died on a similar mission, when the
Taliban shot down a CH-47 Chinook helicopter carrying thirty
U.S. service members, seven Afghan commandos, one civilian
interpreter, and one U.S. military working dog. The shot that
killed them was fired with a type of rocket-propelled grenade
often produced in Iran and supplied by its government to the
Taliban. Five days away from his thirty-seventh birthday,
Vickers left behind a widow and three children, including a
daughter born two months after his death.
The Vickers family and more than a hundred other
plaintiffs sued Iran over its material support for eleven terrorist
attacks. Their claims relied on the Foreign Sovereign
Immunities Act, which creates liability in federal court against
a state sponsor of terrorism that provides material support for
certain extrajudicial killings. See 28 U.S.C. § 1605A(a), (c).
Among the damages sought was “solatium” — solace for loss.
Id. § 1605A(c).
Iran was properly served. It failed to appear. The
plaintiffs then moved for a default judgment.
The FSIA imposes a heightened bar for default judgments.
A plaintiff must establish “his claim or right to relief by
evidence satisfactory to the court.” Id. § 1608(e). So the

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district court developed a case-management plan to evaluate
each plaintiff’s claim.
First, the district court held a three-day evidentiary hearing
and concluded that Iran was a state sponsor of terrorism that
had provided material support for each of the eleven attacks at
issue. Next, the district court determined damages for twenty-
three plaintiffs. Then, the district court appointed several
special masters to recommend damages for the remaining
ninety plaintiffs, including the Vickers family.
The special master recommended awarding solatium to
each member of the Vickers family — $8 million for Vickers’
wife, $5 million for the Vickers’ two oldest children, and $2.5
million for their youngest daughter, known here as K.E.F.V.
The district court adopted nearly all the special masters’
recommendations. But it “regretfully” dismissed K.E.F.V.’s
claim. Cabrera v. Islamic Republic of Iran, Nos. 19-3835, 18-
2065, 2023 WL 3496303, *7 (D.D.C. May 16, 2023). It held
that she cannot recover solatium because she was born two
months after the attack that killed her father. Id.
K.E.F.V. appealed.2 We appointed Thomas Burch of the
University of Georgia School of Law Appellate Litigation
Clinic as an amicus to defend the district court’s judgment.3
2 Our review is de novo because the district court’s holding that
K.E.F.V. lacks standing to seek solatium was based on a pure
question of law.
3 Amicus was assisted by Student Counsel Garfield McIntyre. The
court thanks Amicus and Student Counsel for their able advocacy.

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II
The terrorism exception to the Foreign Sovereign
Immunities Act creates subject matter jurisdiction and a private
cause of action for certain claims against state sponsors of
terrorism. 28 U.S.C. § 1605A(a), (c). It provides that a
“foreign state” is “liable” when:
1. “the foreign state was designated as a state sponsor of
terrorism”
2. at the time of a “personal injury or death”
3. “that was caused by an . . . extrajudicial killing . . . or
the provision of material support or resources for such
an act,”
4. and the claimant is “a national of the United States.”
Id.
K.E.F.V. has satisfied those statutory elements. She is an
American citizen. Her father’s “death” was “caused by” an
“extrajudicial killing.” And Iran is a “state sponsor of
terrorism” that provided “material support” for the attack that
killed him. Therefore, K.E.F.V. has established Iran’s
liability.4
The question of remedy, however, remains. When its
elements are satisfied, the FSIA makes available “economic
4 The FSIA “instructs federal judges to find the relevant law, not to
make it.” Bettis v. Islamic Republic of Iran, 315 F.3d 325, 333 (D.C.
Cir. 2003). But that does not mean judges should search outside the
statute when the relevant law is the statute’s plain text. To find that
text is to find the law.

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damages, solatium, pain and suffering, and punitive
damages.” Id. § 1605A(c).
The remedy K.E.F.V seeks is solatium. It “began as a
remedy for the loss of a spouse or a parent. It has since
expanded to include the loss of a child.” Fraenkel v. Islamic
Republic of Iran, 892 F.3d 348, 356 (D.C. Cir. 2018) (quoting
Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 29 (D.D.C.
2018)). And in some circumstances, it can include the loss of
a sibling. Id.
To calculate solatium, a court considers two factors. The
first is the “injury to the feelings” of a family member caused
by the circumstances of the decedent’s death. Id. The second
is the loss of the “decedent’s comfort and society.” Id. When
the plaintiff is the daughter of the decedent, that second factor
in effect asks: “What is it like for her to live without her
father?”
III
K.E.F.V. was not yet born when Iran helped the Taliban
kill her father. But because she was born two months later, the
Foreign Sovereign Immunities Act’s terrorism exception
allows her to recover solatium for the loss of her father’s
comfort and society.
A
The FSIA does not expressly provide for after-born
plaintiffs to recover solatium. But neither does it expressly
preclude their recovery. And though one could argue that such
silence in the FSIA invites federal courts “to craft a body of
federal common law,” this court’s precedents don’t allow it.
Fraenkel v. Islamic Republic of Iran, 892 F.3d 348, 353 (D.C.

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Cir. 2018). Instead, we are obliged by precedent to “rely on
well-established statements of common law, found in state
reporters, the Restatement of Torts, and other respected
treatises, in determining damages under § 1605A(c).” Id.
That instruction does not require us to supplant the FSIA’s
elements by importing state tort law wholesale into the FSIA’s
private cause of action.5 Nor does that instruction foreclose
reliance on state statutory law, such as wrongful death statutes.
Though our precedents speak of the “common law,” id., “the
language of an opinion is not always to be parsed as though we
were dealing with the language of a statute,” Brown v.
Davenport, 142 S. Ct. 1510, 1528 (2022) (cleaned up). When
considering state tort law in a case about the FSIA, there is no
reason to distinguish between state common law and state
statutory law.
The upshot is that we must look for analogues within all
types of “well-established” state tort law to provide guideposts
for whether solatium is available to K.E.F.V. See Fraenkel,
892 F.3d at 353. And for two reasons, wrongful death statutes
provide the best analogue. First, solatium is commonly
awarded as a remedy in wrongful death suits. See Flatow v.
Islamic Republic of Iran, 999 F. Supp. 1, 29-32 (D.D.C. 1998)
(charting the rise of solatium as a remedy in wrongful death
actions). Second, the FSIA’s private cause of action is itself
akin to a wrongful death statute.
5 See M.M. v. Islamic Republic of Iran, 708 F. Supp. 3d 22, 46
(D.D.C. 2023) (“eligible plaintiffs pressing claims under § 1605A(c)
need not also establish their ability to recover under some other
source of substantive law”). But see Estate of Hirshfeld v. Islamic
Republic of Iran, 330 F. Supp. 3d 107, 137 (D.D.C. 2018)
(section 1605A(c) “does not provide guidance on the substantive
bases for liability to determine Plaintiffs’ entitlement to damages”).

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K.E.F.V. points to cases from thirteen jurisdictions, each
interpreting wrongful death statutes to allow children who were
in utero at the time of a parent’s death to recover on the same
basis as children who were already born. Appellant Br. at 22-
26. They span 130 years and firmly establish that children born
after the death of a parent can recover for that parent’s wrongful
death:
• In Nelson v. Galveston, Harrisburg & San Antonio
Railway Co., the Texas Supreme Court permitted a
child born after his father’s death to avail himself of
Texas’s wrongful death statute. 14 S.W. 1021, 1023-
24 (Tex. 1890). The court explained that the wrongful
death statute provided a “right of action . . . to all of
the surviving children of the deceased.” Id. That
included the plaintiff, who, “although unborn at the
time of his father’s death, was in being, and one of his
surviving children.” Id.; see also id. (adopting from
inheritance law the principle that “a posthumous child
must be considered in the same situation, and entitled
to the same benefits, as one born during the life of its
father” (cleaned up)).
• In Quinlen v. Welch, a child born one day after her
father was run over by a train was permitted to bring
an action under New York’s dram shop act for her
father’s death. 23 N.Y.S. 963, 963, 965 (N.Y. Gen.
Term 1893). The court recognized that an “unborn
child, if subsequently born alive, if deprived of a
parent, suffers in its means of support equally with the

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children that were living at the time of the decease of
such parent.” Id. at 964.
• In State ex rel. Niece v. Soale, a child was born two
months after his father was shot and killed in a
drunken quarrel. 74 N.E. 1111, 1111 (Ind. App. Ct.
1905). The child sued the supplier of the alcohol
under Indiana’s dram shop act. Id. The Indiana
intermediate appellate court reversed the trial court,
holding that “no distinction between the rights of a
posthumous child and one born during the lifetime of
the parent should be made.” Id. at 1113.
• In Herndon v. St. Louis & San Francisco Railroad
Co., a child born about four months after his father’s
death brought an action under Oklahoma’s wrongful
death statute. 128 P. 727, 727 (Okla. 1912). The
Oklahoma Supreme Court had “no doubt” that “the
child . . . unborn at the time of his father’s death, but
later born alive, is to be considered under our laws as
an existing person at the time of his father’s death, and
therefore a beneficiary and entitled to . . . any
recovery of damages for the wrongful death of its
father.” Id. at 730.
• In Bonnarens v. Lead Belt Railway Co., the Missouri
Supreme Court considered a wrongful death action
stemming from a railroad accident. 273 S.W. 1043,
1044 (Mo. 1925). Although the court ultimately
reversed the jury’s verdict, it found “no merit in th[e]
contention” that the “plaintiff, being a posthumous
child, does not come within the terms of the statute

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and is not entitled to prosecute this action.” Id. at
1046.
• In Chick Transit Corp. v. Edenton, the Virginia
Supreme Court of Appeals affirmed a verdict
awarding damages to an after-born child whose father
was killed in a car crash. 196 S.E. 648, 651-52 (Va.
1938). The court rejected as “not impressive” the
defendant’s argument that “nothing should be added
for the child for its loss of a father’s care, attention,
and society” since the “child was born subsequent” to
his father’s death. Id. at 651. The court explained that
the after-born plaintiff “will miss the solace and
comfort usually provided by a father to his child no
less by reason of the fact that he was born after his
father was killed.” Id.
• In Boise Payette Lumber Co. v. Larsen, the Ninth
Circuit, applying Idaho law in a wrongful death case,
affirmed an award of damages to an after-born son
whose father died in a plane crash. 214 F.2d 373, 375,
379-80 (9th Cir. 1954). Testimony from the trial
showed that the father’s “death was a heavy loss to
the . . . after-born son, not only from a financial
standpoint but from the aspect of his society, which
seems to be compensable in Idaho.” Id. at 379.
• In Ellis v. Humana of Florida, Inc., the Florida
District Court of Appeal allowed a child born six
weeks after his father’s death to bring a wrongful
death action. 569 So.2d 827, 828-29 (Fla. 5th DCA
1990). The court reasoned that an unborn child’s

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status as a survivor of the decedent is “inchoate at the
time of the wrongful death” and “become[s] fully
vested upon the occurrence of its live birth.” Id.
• In Marrero Artache v. Autoridad de Energia
Electrica, the District Court for the District of Puerto
Rico held that a child born after her father died could
bring a claim under Puerto Rico’s wrongful death
statute. 924 F. Supp. 346, 348-51 (D.P.R. 1996). The
court rejected the defendant’s argument that “as a
posthumous child,” the plaintiff had not “sufficiently
developed emotional bonds with her father the
severing of which may be judicially redressed.” Id. at
349. On the contrary, the court held that a “jury could
reasonably find that she has and will suffer emotional
distress as a result” of the loss of “a biological parent
who she will never know.” Id. at 351.
• In Quinn v. Pennsylvania Department of
Transportation, a child who was sixteen weeks in-
utero when his father died in a car accident sued
Pennsylvania for improperly positioning a highway
guardrail. 719 A.2d 1105, 1107, 1110 (Pa. Commw.
1998). Drawing on the laws of intestate succession,
the Pennsylvania intermediate court concluded that
the after-born child “should be treated as if born
before his father’s death and, as a result, possessed of

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full rights of recovery allowed under the Wrongful
Death Act.” Id. at 1111.6
• In In re Estate of Davis, the Mississippi Supreme
Court held that “a preborn child who is viable at the
time of a relative’s death and is ultimately born alive,
is ‘living’ such that he or she can be a wrongful death
beneficiary under the law.” 706 So.2d 244, 247
(Miss. 1998).
• In deVente v. Flora, the Georgia Court of Appeals
affirmed a declaratory judgment holding that an after-
born child was her deceased father’s “sole heir and
potential wrongful death claimant.” 684 S.E.2d 91,
92 (Ga. App. 2009). Although the child was in utero
at the time of her father’s death, her claim presented
“a classic wrongful death scenario — a living child
seeking to recover for the death of her father.” Id. at
93.
• In Boland v. Estate of Smith, the Vermont Supreme
Court held that a child born twenty-eight weeks after
her father’s death could bring a claim under
6 The Pennsylvania Supreme Court later criticized Quinn for
awarding non-pecuniary damages in a suit against the Pennsylvania
government because such damages were barred by sovereign
immunity. Department of Public Welfare v. Schultz, 855 A.2d 753,
756 (Pa. 2004) (holding that “a parent may not recover non-
pecuniary losses from the Commonwealth resulting from the death
of a child because such action is barred by” sovereign immunity).
But the court did not discuss Quinn’s holding that after-born children
should be treated like children who were born at the time of a parent’s
death.

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Vermont’s dram shop act. 237 A.3d 723, 725, 728
(Vt. 2020). The court reasoned that in a case where a
“decedent had one child born prior to his death and
another child,” like K.E.F.V., “born after his death, it
would be unfair . . . for one sibling to have a cause of
action and the other sibling to have no remedy when
they are equally injured in loss of support.” Id. at 728.
Amicus responds that most of the cases K.E.F.V. cites did
not provide for emotional damages. Amicus Br. at 19. That
observation is correct, but beside the point. Congress has
already determined that solatium is available under the
FSIA. 28 U.S.C. § 1605A(c). Thus, the wrongful death cases
K.E.F.V. cites are important not for the types of damages they
allow, but because they permit after-born plaintiffs to recover
whatever types of damages their respective statutes
allow — on an equal footing with already-born children.
Amicus argues these thirteen cases do “not rise to the level
of ‘well-established statements of common law.’” Amicus Br.
at 20. And it is true that they do not form a majority of
jurisdictions. But it appears that most jurisdictions have not
had the opportunity to decide the question of after-born
recovery. More important is the consensus of the jurisdictions
that have. Of the wrongful death cases that were (1) brought to
our attention by the parties and (2) considered after-born
plaintiffs, all declined to distinguish between in-utero and
already-born children.7 See Oral Arg. Tr. 23.
7 K.E.F.V. also points to intentional infliction of emotional distress,
loss of parental consortium, and § 869 of the Restatement (Second)
of Torts as potential common law analogues justifying solatium for
after-born plaintiffs. We need not decide whether those sources of
law support K.E.F.V.’s ability to recover because K.E.F.V. has

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B
The district court gave two reasons for its decision.
First, the district court said that terrorist attacks are not
“directed” at unborn family members. Cabrera v. Islamic
Republic of Iran, Nos. 19-3835, 18-2065, 2023 WL 3496303,
*7 (D.D.C. May 16, 2023). That may be true, and perhaps that
fact would be dispositive if solatium covered only the “injury
to the feelings” of a family member caused by the
circumstances of the decedent’s death. Fraenkel, 892 F.3d at
356 (quoting Flatow, 999 F. Supp. at 29). But solatium also
covers the loss of the decedent’s “comfort and society.” Id.
(quoting Flatow, 999 F. Supp. at 29). And because Iran took
from K.E.F.V. the comfort and society of her father, K.E.F.V.
can recover solatium from Iran.
That recovery may well be smaller than if K.E.F.V. had
also suffered mental anguish at the time of her father’s death as
a result of terrorists “direct[ing]” an attack at her. Cabrera,
2023 WL 3496303 at *7. If so, K.E.F.V. will recover less
solatium damages than her older siblings recovered. For
example, when awarding damages to a plaintiff named C.C.V.,
who was two months old when her father died in the same
helicopter attack as K.E.F.V.’s father, the district court reduced
C.C.V.’s damages from the baseline of $5 million to an award
of $3 million because she was too young to comprehend her
father’s death contemporaneously. Id. at *10-11.
demonstrated a “well-established” principle that state wrongful death
statutes would allow after-born plaintiffs to recover on the same basis
as already born plaintiffs, and we find that principle persuasive.

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But just as C.C.V.’s age was no reason to dismiss C.C.V.’s
suit, K.E.F.V.’s age is no reason to dismiss K.E.F.V.’s suit.
Both have been forced to grow up without the “love, affection,
care, attention, companionship, comfort and protection” that
their fathers would have provided. Sea-Land Services, Inc. v.
Gaudet, 414 U.S. 573, 585 (1974), superseded by statute,
Longshore and Harbor Workers’ Compensation Act, Pub. L.
No. 92-576, 86 Stat. 1263; see also Goldstein v. Islamic
Republic of Iran, 383 F. Supp. 3d 15, 23 (D.D.C. 2019) (there’s
“little difference between a child born two days after the attack
and a child who was only [a] month old at the time of the
attack”). There is no rational basis to distinguish between these
two children born just four months apart.
Second, the district court said that allowing plaintiffs like
K.E.F.V. to recover would create “a potentially unlimited
class” that “could remain open for decades after a terrorist
attack.” Cabrera, 2023 WL 3496303 at *7 (quoting Davis v.
Islamic Republic of Iran, 882 F. Supp. 2d 7, 15 (D.D.C. 2012)).
But that concern is easily mitigated by limiting recovery to
plaintiffs who are in utero at the time of a terrorist attack and
born later.8
8 Compare, e.g., Anderson v. Islamic Republic of Iran, 90 F. Supp.
2d 107, 111, 113 & n.3 (D.D.C. 2000) (solatium for child seven
months in utero when her father was kidnapped), and Smith ex rel.
Smith v. Islamic Emirate of Afghanistan, 262 F. Supp. 2d 217, 237,
239, 241 (S.D.N.Y. 2003) (solatium for child who was three months
in utero on 9/11), with Baker v. Socialist People’s Libyan Arab
Jamahirya, 775 F. Supp. 2d 48, 57-60, 76 (D.D.C. 2011) (no
solatium for child born 12 years after his mother was injured in
terrorist attack), and Davis, 882 F. Supp. 2d at 11, 15 (no solatium
for plaintiffs born years after Beirut barracks bombing). But see, e.g.,
id. (no solatium for two plaintiffs in utero at time of Beirut bombing).

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Accordingly, the district court erred in holding that
K.E.F.V. lacked standing to recover solatium. We conclude
that children who are in utero at the time a parent is killed in a
terrorist attack and who are later born may seek solatium under
the FSIA.
IV
When Iran helped the Taliban kill Kraig Vickers, K.E.F.V.
lost her father. And because the rest of her family can
successfully sue Iran, she can too. There is no rational reason
why recovery should turn on the mere happenstance of being
in utero or ex utero at the time of the Taliban’s attack.
We therefore reverse the decision of the district court and
remand for proceedings consistent with this opinion.
So ordered.

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