JERSEY CITY, N.J., Nov. 4 — Stephen Flatow’s attempt to bring the government of Iran to justice for supporting terrorism that led to the death of his 20-year-old daughter, Alisa, in a bus bombing in Gaza on April 9, 1995, has received a setback. In 1997, Flatow, whose law office is in this city, filed a wrongful death complaint against Iran, which does not have diplomatic relations with the United States. He is seeking punitive damages. (He and other members of a group of people who have lost family members or been hostages as a result of Middle East terrorism have already recovered compensatory damages from Iranian assets frozen in this country.) In 1998, the U.S. District Court for the District of Columbia had entered a default judgment against Iran, to the amount of $247,513,220, in Flatow’s favor. He then obtained a writ of execution for that amount on property owned by California Land Holding Co., a subsidiary of Bank Saderat Iran in California. That action was dismissed in 2000 by the U.S. District Court for the Southern District of California. Flatow appealed the dismissal, but last week the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, dismissed his appeal. The court cited a 1983 case involving the government of Cuba in which a bank was found to be operating as an organ of the Cuban government and therefore could be held liable for that government’s “judgment debt.”Bank Saderat Iran, the court ruled, had not been shown to operate “as an arm of the Iranian government,” nor is its “mission to further the policies of the Iranian government.” Flatow said in a telephone interview on Tuesday that the bank owns the real estate and the country owns the bank. “You would think that would be it in a nutshell.” But, he explained, “the 1983 case talks about demonstrating dominion and control of the day-to-day business operations of a third-party entity. Therefore, unless you can demonstrate that, you cannot seize the assets of that entity in satisfaction of a judgment against a country unless you can show that day-to-day control.” This, he said, is “almost an impossible hurdle to overcome. The only way you could do it is to find telegrams on a daily basis. You don’t find that in any business situation.” The presidents or chairmen of the board of directors of big corporations “don’t communicate with their subsidiaries every day — don’t tell them what to do.” Flatow and his lawyers, Steven R. Perles and Thomas Fortune Fay, both in Washington, D.C., are weighing the options, including filing a petition for a writ of certiorari — asking a higher court to review the proceedings of a lower court — before the U.S. Supreme Court. “We are saying that the circuit court was wrong in its application of federal law,” he said. Nevertheless, he added, he doesn’t think it’s likely “that the court will grant the writ” — meaning take the case — “because the Supreme Court can’t hear all the cases brought to its doorstep.” “My family is trying to put the Iranians out of the terrorism business,” he said. “That has always the force behind the lawsuit. If you make it expensive for them, many experts have told us, they will rethink their financial support. In my opinion the ninth circuit has sent the wrong kind of signal to the Iranian government. This is the kind of signal you don’t want to see the United States sending. They pay attention to this overseas. If there is to be a penalty paid for the killing of Americans overseas, this is one way to enforce it.” Flatow noted that he “had started this even before” people who had been similarly affected by terrorism emanating from Iran, including Arline Duker of Teaneck and Leonard and Vicki Eisenfeld of West Hartford, Conn., “got their own personal judgments…. All the judgments are in. Now they have to wait and see what happens to me now.” Duker’s 22-year-old daughter, Sara, and 25-year-old Matthew Eisenfeld were killed in a bus bombing on Feb. 26, 1996. Altogether, Flatow said, the judgments amount to “almost $800 million. Each family has separate judgments.” Arline Duker, who was not part of the action against the California bank, said in a telephone interview on Tuesday, “It’s not really about suing anymore but about recovering the assets, enforcing the judgment. There are a lot of obstacles along the way.” She said the opinion in the Flatow case is “discouraging, but it feels like we have no option other than to pursue this with as much energy as we can because it feels like the right thing to do. The governments that sponsor terror and murder innocent people have to be made to pay. My personal hope is that sometime in the future our own government will be able to be more helpful to us — not opposing some of the means we need to use to try to collect the judgment…. “I feel this is not about just us, our families,” she continued. “This is about holding people accountable for their murderous actions. Ultimately, doing that benefits every innocent person everywhere. When we hold terrorists accountable for what we do and make them pay, we’re all safer.”
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