Stephen Flatow

CASE SUMMARY

Flatow v. Islamic Republic of  Iran, Case No.: No. 97-396 RCL  (D.D.C. 1998)

The Trailblazer

  • Dr. Engelberg believed victims of terrorists should be afforded the same freedom to sue bad actors that everyone else has. It didn’t make sense to deny those who had arguably suffered the most the opportunity to hold those who had wronged them accountable.
  • The passing of a law might be a sufficient victory for some, but Dr. Engelberg sought more concrete results. Without seeing the new law in action, it remained in the theoretical realm.
  • Mr. Flatow was somewhat hesitant to serve as a “test case,” fearing retaliation directed at him and his family by the proposed defendants.

Steven Flatow was justifiably angry. His daughter Alisa, who was studying in Israel, had been killed when a suicide bomber drove up to her bus in a van filled with explosives and carried out his jihad mission. Palestinian Islamic terrorist organizations supported by the Iranian government claimed responsibility. Mr. Flatow wanted the terrorists and their Iranian supporters to be punished for their crimes, but there seemed no way to hold them accountable.

At the same general time, Dr. Michael Engelberg, a pediatrician whose work focused on ADD and ADHD, was wondering the same thing. Traditionally, when a person or entity suffers a loss, they are compensated financially for the damages suffered by bringing a lawsuit in civil court. Dr. Engelberg believed victims of terrorists should be afforded the same freedom to sue bad actors that everyone else has. It didn’t make sense to deny those who had arguably suffered the most the opportunity to seek justice, and punish the wrongdoers. It was insufficient to only be permitted to sue the individuals or the particular group claiming responsibility. Those who are truly responsible—those who provide material support, weapons, and funds that allow these terrorist organizations to function, if not thrive—must also be held accountable.

This approach of accountability created by Dr. Engelberg made perfect sense, so much so that when he discussed the idea with the right people, among them four senators willing to support the idea, it passed in Congress, modifying the Foreign Sovereign Immunities Act. The new law allowed for a cause of action for personal injury and/or death resulting from state-sponsored terrorism to be brought in federal court.

The passing of a law might be a sufficient victory for some, but Dr. Engelberg sought more concrete results. Without seeing the new law in action, it remained in the theoretical realm.

Dr. Engelberg met Mr. Flatow, announcing the passage of the new law that could get Mr. Flatow exactly what he wanted—a chance to punish those at fault for the death of his daughter. Dr. Engelberg explained the law and encouraged Mr. Flatow to be the first to try it out.

Mr. Flatow was somewhat hesitant to serve as a “test case,” fearing retaliation directed at him and his family by the proposed defendants. Further discouraging Mr. Flatow from pursuing this remedy were the diametrically opposed positions of the State Department and U.S. Government at that time. He feared consequences from foreign actors and his own country. To be sure, it was a risky gamble, one that Mr. Flatow bet on.

The Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997, became known as the Flatow Amendment, due to Flatow v. Islamic Republic of Iran, Case No.: No. 97-396 RCL (D.D.C. 1998), serving as the test-case for the new law which allowed victims to collect “money damages which may include economic damages, solatium, pain, and suffering, and [certain] punitive damages…” against an official, employee, or agent of a foreign state (or the foreign state itself). See Flatow Amendment, Pub. L. No. 104-208, § 589, 110 Stat. 3009-172 (1996) (codified at 28 U.S.C. § 1605 (Supp. 2002)).

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