864 F.3d 751 (D.C. Cir. 2017), 14-5105, Owens v. Republic of Sudan

Docket Nº:14-5105 14-5106, 14-5107, 14-7124, 14-7125, 14-7127, 14-7128, 14-7207, 16-7044, 16-7045, 16-7046, 16-7048, 16-7049, 16-7050, 16-7052
Citation:864 F.3d 751
Opinion Judge:GINSBURG, Senior Circuit Judge.
Party Name:JAMES OWENS, ET AL., APPELLEES v. REPUBLIC OF SUDAN, MINISTRY OF EXTERNAL AFFAIRS AND MINISTRY OF THE INTERIOR OF THE REPUBLIC OF THE SUDAN, APPELLANTS
Attorney:Christopher M. Curran argued the cause for appellants. With him on the briefs were Nicole Erb, Claire A. DeLelle, and Celia A. McLaughlin. Bruce E. Fein entered an appearance. Stuart H. Newberger and Matthew D. McGill argued the causes for appellees James Owens, et al. With them on the brief were...
Judge Panel:Before: HENDERSON and ROGERS, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Case Date:July 28, 2017
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 751

864 F.3d 751 (D.C. Cir. 2017)

JAMES OWENS, ET AL., APPELLEES

v.

REPUBLIC OF SUDAN, MINISTRY OF EXTERNAL AFFAIRS AND MINISTRY OF THE INTERIOR OF THE REPUBLIC OF THE SUDAN, APPELLANTS

Nos. 14-5105 14-5106, 14-5107, 14-7124, 14-7125, 14-7127, 14-7128, 14-7207, 16-7044, 16-7045, 16-7046, 16-7048, 16-7049, 16-7050, 16-7052

United States Court of Appeals, District of Columbia Circuit

July 28, 2017

Argued October 11, 2016.

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Appeals from the United States District Court for the District of Columbia. (No. 1:01-cv-02244), (1:08-cv-01377), (1:10-cv-00356), (1:12-cv-01224), (1:08-cv-01349), (1:08-cv-01361), (1:08-cv-01380).

Christopher M. Curran argued the cause for appellants. With him on the briefs were Nicole Erb, Claire A. DeLelle, and Celia A. McLaughlin. Bruce E. Fein entered an appearance.

Stuart H. Newberger and Matthew D. McGill argued the causes for appellees James Owens, et al. With them on the brief were Clifton S. Elgarten, Aryeh S. Portnoy, Emily Alban, John L. Murino, Jonathan C. Bond, Michael R. Huston, Steven R. Perles, Edward B. MacAllister, John Vail, Thomas Fortune Fay, Jane Carol Norman, Michael J. Miller, and David J. Dickens. Annie P. Kaplan, John D. Aldock, and Stephen A. Saltzburg, entered appearances.

Before: HENDERSON and ROGERS, Circuit Judges, and GINSBURG, Senior Circuit Judge.

OPINION

GINSBURG, Senior Circuit Judge.

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Table of Contents

I. Background
A. The FSIA Terrorism Exception
B. History of this Litigation
II. Extrajudicial Killings
A. Textual Arguments
1. State action requirements under international law
2. International law and the TVPA
3. State action requirements in the TVPA and the FSIA
terrorism exception
B. Statutory Purpose
C. Statutory History
III. Sufficiency of the Evidence Supporting Jurisdiction
A. The Evidentiary Hearing
1. The sources of evidence presented
2. The district court's findings of fact
B. Standard of Review
C. Admissibility of the Evidence
1. The expert testimony
2. The State Department reports
D. Sufficiency of the Evidence
1. Proximate causation
2. Sudan's specific intent
IV. Timeliness of Certain Claims
V. Jurisdiction and Causes of Action for Claims of Third
Parties
A. Jurisdiction
B. Causes of Action
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C. Intentional Infliction of Emotional Distress
VI. Punitive Damages
A. Whether to Review the Awards of Punitive Damages
B. Retroactivity of Punitive Damages Under § 1605A(c)
1. Section 1605A operates retroactively
2. Clear statement of retroactive effect
C. Retroactivity of Punitive Damages Under State Law
VII. Vacatur Under Rule 60(b)
A. Excusable Neglect Under Rule 60(b)(1)
B. Extraordinary Circumstances Under Rule 60(b)(6)
On August 7, 1998 truck bombs exploded outside the United States embassies in Nairobi, Kenya and in Dar es Salaam, Tanzania. The explosions killed more than 200 people and injured more than a thousand. Many of the victims of the attacks were U.S. citizens, government employees, or contractors. As would later be discovered, the bombings were the work of al Qaeda, and only the first of several successful attacks against U.S. interests culminating in the September 11, 2001 attack on the United States itself. From 1991 to 1996, al Qaeda and its leader, Usama bin Laden, maintained a base of operations in Sudan. During this time, al Qaeda developed the terrorist cells in Kenya and Tanzania that would later launch the embassy attacks. This appeal considers several default judgments holding Sudan liable for the personal injuries suffered by victims of the al Qaeda embassy bombings and their family members. I. Background Starting in 2001 victims of the bombings began to bring suits against the Republic of Sudan and the Islamic Republic of Iran, alleging that Sudan, its Ministry of the Interior, Iran, and its Ministry of Information and Security materially supported al Qaeda during the 1990s. Specifically, the plaintiffs contended Sudan provided a safe harbor to al Qaeda and that Iran, through its proxy Hezbollah, trained al Qaeda militants. In bringing these cases, the plaintiffs relied upon a provision in the Foreign Sovereign Immunity Act (FSIA) that withdraws sovereign immunity and grants courts jurisdiction to hear suits against foreign states designated as sponsors of terrorism. 28 U.S.C. § 1605(a)(7). This provision and its successor are known as the " terrorism exception" to foreign sovereign immunity. Initially, neither Sudan nor Iran appeared in court to defend against the suits. In 2004 Sudan secured counsel and participated in the litigation. Within a year, its communication with and payment of its attorneys ceased but counsel continued to litigate until allowed to withdraw in 2009. In the years that followed, several new groups of plaintiffs filed suits against Sudan and Iran. The sovereign defendants did not appear in any of these cases, and in 2010 the district court entered defaults in several of the cases now before us. After an evidentiary hearing in 2010 and the filing of still more cases, the court in 2014 entered final judgments in all pending cases. Sudan then reappeared, filing appeals and motions to vacate the judgments. The district court denied Sudan's motions to vacate, and Sudan again appealed. Today we address several challenges brought by Sudan on direct appeal of the default judgments and collateral appeal from its motions to vacate. Most of Sudan's contentions require interpretation of the Page 763 FSIA terrorism exception, to...

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