Opati v. Republic of Sudan

• Decision Date: 18 May 2020
• Docket Number: No. 17-1268,17-1268
• Citation: 206 L.Ed.2d 904,140 S.Ct. 1601
• Parties: Monicah Okoba OPATI, in Her Own Right, and as Executrix of the Estate of Caroline Setla Opati, Deceased, et al., Petitioners v. REPUBLIC OF SUDAN, et al.
• Court: U.S. Supreme Court

140 S.Ct. 1601

206 L.Ed.2d 904

Monicah Okoba OPATI, in Her Own Right, and as Executrix of the Estate of Caroline Setla Opati, Deceased, et al., Petitioners

v.REPUBLIC OF SUDAN, et al.

No. 17-1268

Supreme Court of the United States.

Argued February 24, 2020

Decided May 18, 2020

Steven R. Perles, Edward B. MacAllister, Perles Law Firm, PC, Washington, DC, Steven W. Pelak, Brett C. Ruff, Holland & Hart LLP, Washington, DC, Michael J. Miller, David J. Dickens, The Miller Firm, LLC, Orange, VA, Gavriel Mairone, MM-Law LLC, Chicago IL, John Arthur Eaves, Jr., Eaves Law Firm, LLC, Jackson, MS, William Wheeler, Jamie Franks, Wheeler & Franks Law Firm PC, Tupelo, MS, for Petitioners.

Christopher M. Curran, Nicole Erb, Claire A. DeLelle, Celia A. McLaughlin, Nicolle Kownacki, White & Case LLP, Washington, DC, for Respondents.

Justice GORSUCH delivered the opinion of the Court.

In 1998, al Qaeda operatives simultaneously detonated truck bombs outside the United States Embassies in Kenya and Tanzania. Hundreds died, thousands were injured. In time, victims and their family members sued the Republic of Sudan in federal court, alleging that it had assisted al Qaeda in perpetrating the attacks. After more than a decade of motions practice, intervening legislative amendments, and a trial, the plaintiffs proved Sudan's role in the attacks and established their entitlement to compensatory and punitive damages. On appeal, however, Sudan argued, and the court agreed, that the Foreign Sovereign Immunities Act barred the punitive damages award. It is that decision we now review and, ultimately, vacate.

* The starting point for nearly any dispute touching on foreign sovereign immunity lies in Schooner Exchange v. McFaddon , 7 Cranch 116, 3 L.Ed. 287 (1812). There, Chief Justice Marshall explained that foreign sovereigns do not enjoy an inherent right to be held immune from suit in American courts: "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself." Id., at 136. Still, Chief Justice Marshall continued, many countries had declined to exercise jurisdiction over foreign sovereigns in cases involving foreign ministers and militaries. Id., at 137–140. And, accepting a suggestion from the Executive Branch, the Court agreed as a matter of comity to extend that same immunity to a foreign sovereign in the case at hand. Id., at 134, 145–147.

For much of our history, claims of foreign sovereign immunity were handled on a piecework basis that roughly paralleled the process in Schooner Exchange . Typically, after a plaintiff sought to sue a foreign sovereign in an American court, the Executive Branch, acting through the State Department, filed a "suggestion of immunity"—case-specific guidance about the foreign sovereign's entitlement to immunity. See Verlinden B.V. v. Central Bank of Nigeria , 461 U.S. 480, 487, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). Because foreign sovereign immunity is a matter of "grace and comity," Republic of Austria v. Altmann , 541 U.S. 677, 689, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004), and so often implicates judgments the Constitution reserves to the political branches, courts "consistently ... deferred" to these suggestions. Verlinden , 461 U.S. at 486, 103 S.Ct. 1962.

Eventually, though, this arrangement began to break down. In the mid-20th century, the State Department started to take a more restrictive and nuanced approach to foreign sovereign immunity. See id., at 486–487, 103 S.Ct. 1962. Sometimes, too, foreign sovereigns neglected to ask the State Department to weigh in, leaving courts to make immunity decisions on their own. See id., at 487–488, 103 S.Ct. 1962. "Not surprisingly" given these developments, "the governing standards" for foreign sovereign immunity determinations over time became "neither clear nor uniformly applied." Id ., at 488, 103 S.Ct. 1962.

In 1976, Congress sought to remedy the problem and address foreign sovereign immunity on a more comprehensive basis. The result was the Foreign Sovereign Immunities Act (FSIA). As a baseline rule, the FSIA holds foreign states and their instrumentalities immune from the jurisdiction of federal and state courts. See 28 U.S.C. §§ 1603(a), 1604. But the law also includes a number of exceptions. See, e.g., §§ 1605, 1607. Of particular relevance today is the terrorism exception Congress added to the law in 1996. That exception permits certain plaintiffs to bring suits against countries who have committed or supported specified acts of terrorism and who are designated by the State Department as state sponsors of terror. Still, as originally enacted, the exception shielded even these countries from the possibility of punitive damages. See Antiterrorism and Effective Death Penalty Act of 1996 (codifying state-sponsored terrorism exception at 28 U.S.C. § 1605(a)(7) ); § 1606 (generally barring punitive damages in suits proceeding under any of § 1605's sovereign immunity exceptions).

Two years after Congress amended the FSIA, al Qaeda attacked the U.S. Embassies in Kenya and Tanzania. In response, a group of victims and affected family members led by James Owens sued Sudan in federal district court, invoking the newly adopted terrorism exception and alleging that Sudan had provided shelter and other material support to al Qaeda. As the suit progressed, however, a question emerged. In its recent amendments, had Congress merely withdrawn immunity for state-sponsored terrorism, allowing plaintiffs to proceed using whatever pre-existing causes of action might be available to them? Or had Congress gone further and created a new federal cause of action to address terrorism? Eventually, the D.C. Circuit held that Congress had only withdrawn immunity without creating a new cause of action. See Cicippio-Puleo v. Islamic Republic of Iran , 353 F.3d 1024, 1033 (2004).

In response to that and similar decisions, Congress amended the FSIA again in the National Defense Authorization Act for Fiscal Year 2008 (NDAA), 122 Stat. 338. Four changes, all found in a single section, bear mention here. First, in § 1083(a) of the NDAA, Congress moved the state-sponsored terrorism exception from its original home in § 1605(a)(7) to a new section of the U.S. Code, 28 U.S.C. § 1605A. This had the effect of freeing claims brought under the terrorism exception from the FSIA's usual bar on punitive damages. See § 1606 (denying punitive damages in suits proceeding under a sovereign immunity exception found in § 1605 but not § 1605A ). Second, also in § 1083(a), Congress created an express federal cause of action for acts of terror. This new cause of action, codified at 28 U.S.C. § 1605A(c), is open to plaintiffs who are U.S. nationals, members of the Armed Forces, U.S. government employees or contractors, and their legal representatives, and it expressly authorizes punitive damages. Third, in § 1083(c)(2) of the NDAA, a provision titled "Prior Actions," Congress addressed existing lawsuits that had been "adversely affected on the groun[d] that" prior law "fail[ed] to create a cause of action against the state." Actions like these, Congress instructed, were to be given effect "as if " they had been originally filed under § 1605A(c)'s new federal cause of action. Finally, in § 1083(c)(3) of the NDAA, a provision titled "Related Actions," Congress provided a time-limited opportunity for plaintiffs to file new actions "arising out of the same act or incident" as an earlier action and claim the benefits of 28 U.S.C. § 1605A.

Following these amendments, the Owens plaintiffs amended their complaint to include the new federal cause of action, and hundreds of additional victims and family members filed new claims against Sudan similar to those in Owens . Some of these new plaintiffs were U.S. nationals or federal government employees or contractors who sought relief under the new § 1605A(c) federal cause of action. But others were the foreign-national family members of U.S. government employees or contractors killed or injured in the attacks. Ineligible to invoke § 1605A(c)'s new federal cause of action, these plaintiffs relied on § 1605A(a)'s state-sponsored terrorism exception to overcome Sudan's sovereign immunity and then advance claims sounding in state law.

After a consolidated bench trial in which Sudan declined to participate, the district court entered judgment in favor of the plaintiffs. District Judge John Bates offered detailed factual findings explaining that Sudan had knowingly served as a safe haven near the two United States Embassies and allowed al Qaeda to plan and train for the attacks. The court also found that Sudan had provided hundreds of Sudanese passports to al Qaeda, allowed al Qaeda operatives to travel over the Sudan-Kenya border without restriction, and permitted the passage of weapons and money to supply al Qaeda's cell in Kenya. See Owens v. Republic of Sudan , 826 F.Supp.2d 128, 139–146 (DC 2011).

The question then turned to damages. Given the extensive and varied nature of the plaintiffs' injuries, the court appointed seven Special Masters to aid its factfinding. Over more than two years, the Special Masters conducted individual damages assessments and submitted written reports. Based on these reports, and after adding a substantial amount of prejudgment interest to account for the many years of delay, the district court awarded a total of approximately $10.2 billion in damages, including roughly $4.3 billion in punitive damages to plaintiffs who had brought suit in the wake of the 2008 amendments.

At that point, Sudan decided to appear and appeal. Among other things, Sudan sought to undo the district court's punitive damages award. Generally, Sudan argued, Congress may create new forms of liability for past conduct only by clearly stating its intention to do so. And, Sudan continued, when Congress passed the NDAA in 2008, it nowhere clearly authorized punitive damages for anything...