Clodfelter v. Republic of Sudan

Citation720 F.3d 199
Decision Date20 June 2013
Docket NumberNo. 11–2118.,11–2118.
PartiesJennifer CLODFELTER, Individually and as Next Friend of N.C., a minor; John Clodfelter; Gloria Clodfelter; Joseph Clodfelter; Sharla Costelow, Individually and as the Next Friend of E.C. and B.C., minors; George Costelow; Dorothy Costelow; Ronald W. Francis; Sandra Francis; David Francis; James Francis; Sarah Guana Esquivel; Lou Gunn; Mona Gunn; Anton J. Gunn; Jamal Gunn; Jason Gunn; Novella Wiggins; Diane McDaniels, Individually and as Next Friend of J.M., a minor; Frederica McDaniels–Bess; Jesse Nieto; Jamie Owens, Individually and as the Guardian of the Estate and Next Friend of I.M.O., a minor; Kenyon Embry; Teresa Smith; Leroy Parlett; Etta Parlett, Individually and as Next Friend of H.P., a minor; Kera Parlett Miller; Matthew Parlett; Kate Brown; Sean Walsh; Kevin Roy; Olivia Rux; Rogelio Santiago; Simeona Santiago; Jacqueline Saunders, Individually and as the Guardian of the Estate and Next Friend for J.T.S., a minor; Isley Gayle Saunders; Gary Swenchonis, Sr.; Deborah Swenchonis; Shalala Swenchonis–Wood; Lorie D. Triplett, Individually and as the Guardian of the Estate and Next Friend of A.T. and S.R.T., minors; Reed Triplett; Savannah Triplett; Freddie Triplett; Theodis Triplett; Kevin Triplett; Wayne Triplett; Thomas Wibberly; Patricia A. Wibberly; Toni Wibberly; Timothy Paul Sceviour, as Personal Representative of the Estates of Kenneth Eugene Clodfelter, Richard Costelow, Lakeina Monique Francis, Timothy Lee Gauna, Cherone Louis Gunn, James Roderick McDaniels, Marc Ian Nieto, Ronald Scott Owens, Lakiba Nicole Palmer; Timothy Paul Sceviour, as Personal Representative of the Estates of Joshua Langdon Parlett, Patrick Howard Roy, Kevin Shawn Rux, Ronchester Mananga Santiago, Timothy Lamont Saunders, Gary Graham Swenchonis, Jr., Andrew Triplett and Craig Bryan Wibberly, Plaintiffs–Appellants, and Ollesha Smith Jean; Jack Earl Swenson; Avinesh Kumar, Individually and as the Guardian of the Estate and Next Friend of C.K., a minor; Hugh M. Palmer, Plaintiffs, v. REPUBLIC OF SUDAN, Defendant–Appellee, United States of America, Intervenor.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

OPINION TEXT STARTS HERE

ARGUED:Andrew C. Hall, Hall, Lamb and Hall, P.A., Miami, Florida, for Appellants. Adam C. Jed, United States Department of Justice, Washington, D.C., for Intervenor. ON BRIEF:Roarke Maxwell, Hall, Lamb and Hall, P.A., Miami, Florida; Kevin E. Martingayle, Stallings & Bischoff, P.C., Virginia Beach, Virginia; Nelson M. Jones, III, Law Firm of Nelson M. Jones, III, Houston, Texas; James Cooper–Hill, Law Office of James Cooper–Hill, Rockport, Texas, for Appellants. Neil H. MacBride, United States Attorney, Alexandria, Virginia; Stuart F. Delery, Acting Assistant Attorney General, Mark B. Stern, United States Department of Justice, Washington, D.C., for Intervenor.

Before DUNCAN, AGEE, and DAVIS, Circuit Judges.

Reversed and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge AGEE and Judge DAVIS joined. Judge DAVIS wrote a separate concurring opinion.

DUNCAN, Circuit Judge:

After the bombing of the U.S.S. Cole in October 2000, fifty-nine family members of the victims (the plaintiffs) filed suit against the Republic of Sudan (Sudan) in 2004. In 2007, the district court found Sudan liable under the Death on the High Seas Act (the “DOHSA”), and ordered it to pay damages. When the plaintiffs, joined by four others not party to the 2004 complaint, commenced a new suit against Sudan in April 2010 invoking a federal cause of action under the Foreign Sovereign Immunities Act (the FSIA), the district court concluded that the previous judgment under the DOHSA precluded an action under the FSIA. For the reasons that follow, we reverse.

I.

This appeal is the fourth time the plaintiffs have appeared before us. The three previous instances were in connection with the plaintiffs' action in Rux v. Republic of Sudan. After briefly setting out the underlying facts, we describe the procedural history of Rux and this case in greater detail.

A.

On October 12, 2000, the U.S.S. Cole, a Navy Destroyer, entered the Port of Aden in Yemen to refuel.1 As it refueled, two males approached the Navy Vessel in a small motorboat. Shortly thereafter, the small boat exploded, killing seventeen Navy sailors and injuring forty-two others.

This attack was carried out by operatives from Al Qaeda, a worldwide terrorist network then led by Osama Bin Laden. During much of the 1990s, Bin Laden and other Al Qaeda members resided in Sudan, which provided them with the support, guidance, and resources necessary to perpetrate the attack on the U.S.S. Cole.

B.

Although the plaintiffs filed their complaint in the instant case in April 2010, the relevant procedural history begins when they first filed suit against Sudan in 2004. To overcome the immunity typically accorded a foreign country in U.S. courts under the FSIA, the plaintiffs invoked that statute's exception for state sponsors of terrorism. See28 U.S.C. § 1605(a)(7).2 The United States Department of State had designated Sudan a “state sponsor of terrorism” in August 1993. SeeDetermination Sudan, 58 Fed.Reg. 52,523 (Oct. 8, 1993). Section 1605(a)(7) of the FSIA operated to confer subject-matter jurisdiction over Sudan by stripping its immunity, but did not provide a federal cause of action. Cicippio–Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033–36 (D.C.Cir.2004).3 The plaintiffs therefore asserted wrongful death claims under the DOHSA, 46 U.S.C. §§ 30301 et seq., and state law claims for intentional infliction of emotional distress and maritime wrongful death.

Sudan moved to dismiss the 2004 complaint on jurisdictional grounds. The district court denied Sudan's motion, and we affirmed. See Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir.2006). Sudan then informed the district court by letter that it would not participate in the merits of the case.

The plaintiffs subsequently moved in district court for entry of default and default judgment against Sudan, which the FSIA permits only where a plaintiff “establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). Following a two-day trial in March 2007, the district court concluded the plaintiffs had established sufficient evidence to warrant entry of default judgment for wrongful death under the DOHSA. By contrast, the district court dismissed for failure to state a claim the plaintiffs' state law claims for intentional infliction of emotional distress and maritime wrongful death on the basis that the DOHSA preempted those claims. The district court then calculated each plaintiff's pecuniary loss as required by the DOHSA, see46 U.S.C. § 30303 (“The recovery in an action under this chapter shall be a fair compensation for the pecuniary loss sustained by the individuals for whose benefit the action is brought.”), and ordered Sudan to pay $7,956,344 in compensatory damages to eligible plaintiffs.

The plaintiffs appealed the district court's dismissal of their state law claims. While this appeal was pending, Congress passed the National Defense Authorization Act for Fiscal Year 2008 (the “NDAA”), Pub.L. No. 110–181, 122 Stat. 3, which became effective on January 28, 2008. The NDAA potentially affected the plaintiffs' case in two significant ways. First, § 1083(a) of the NDAA repealed the FSIA provision governing state sponsors of terrorism, § 1605(a)(7), and replaced it with a new provision: 28 U.S.C. § 1605A. While § 1605A retained the immunity-stripping function of the previous statutory provision, it explicitly provided for a federal private right of action and allowed plaintiffs to seek “economic damages, solatium, pain and suffering, and punitive damages” for certain torts committed by foreign states.4§ 1605A(c).

The second way the NDAA potentially affected the plaintiffs' case was through a detailed provision governing how and under what circumstances § 1605A would apply to pending and decided cases. See NDAA § 1083(c). Where a plaintiff, in bringing a “prior action,” had relied on § 1605(a)(7) as the source of a cause of action, and that action had been “adversely affected on the grounds that [§ 1605(a)(7) ] fail[ed] to create a cause of action against the [foreign] state,” that plaintiff could move the district court to have the case treated as though it had been originally filed under § 1605A. See NDAA § 1083(c)(2). Section 1083(c)(2)(B) waived defenses of res judicata and collateral estoppel for any “prior actions.” Finally, the NDAA also permitted a plaintiff who had timely commenced a suit under § 1605(a)(7) to bring a “related action” under § 1605A so long as the plaintiff commenced the related action no more than sixty days after either the entry of judgment in the original action or the date of the NDAA's enactment. NDAA § 1083(c)(3).

On the plaintiffs' motion, we remanded Rux to the district court to determine whether the newly created private right of action under § 1605A of the FSIA took precedence over the DOHSA for terrorism-related deaths occurring on the high seas. At the district court, the plaintiffs moved under NDAA § 1083(c)(2)(A) to amend their complaint to add a cause of action under the newly enacted § 1605A. Noting that the plaintiffs had filed their complaint after the D.C. Circuit held in Cicippio–Puleo that § 1605(a)(7) did not create a private right of action, the district court concluded that plaintiffs had not relied upon § 1605(a)(7) as creating a substantive cause of action. See Rux v. Republic of Sudan, 672 F.Supp.2d 726, 734–35 (E.D.Va.2009). It therefore denied plaintiffs' motion to amend, answering our inquiry—whether § 1605A trumped the DOHSA for terrorism-related deaths at sea—in the negative. Id. at 738. The plaintiffs again appealed.

After the plaintiffs and the government, which intervened under 28 U.S.C. § 517, filed their briefs, but before oral argument, the...

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