Owens v. Republic of Sudan

• Decision Date: 23 March 2016
• Docket Number: Civil Action No. 08-1380 (JDB), Civil Action No. 12-1224 (JDB),Civil Action No. 01-2244 (JDB), Civil Action No. 08-1361 (JDB), Civil Action No. 08-1349 (JDB), Civil Action No. 10-356 (JDB), Civil Action No. 08-1377 (JDB)
• Citation: 174 F.Supp.3d 242
• Court: U.S. District Court — District of Columbia
• Parties: James Owens, et al., Plaintiffs, v. Republic of Sudan, et al., Defendants. Winfred Wairimu Wamai, et al., Plaintiffs, v. Republic of Sudan, et al., Defendants. Milly Mikali Amduso, et al., Plaintiffs, v. Republic of Sudan, et al., Defendants. Judith Abasi Mwila, et al., Plaintiffs, v. Islamic Republic of Iran, et al., Defendants. Mary Onsongo, et al., Plaintiffs, v. Republic of Sudan, et al., Defendants. Rizwan Khaliq, et al., Plaintiffs, v. Republic of Sudan, et al., Defendants. Monicah Okoba Opati, et al., Plaintiffs, v. Republic of Sudan, et al., Defendants.

174 F.Supp.3d 242

James Owens, et al., Plaintiffs,

v.Republic of Sudan, et al., Defendants.

Winfred Wairimu Wamai, et al., Plaintiffs,

v.Republic of Sudan, et al., Defendants.

Milly Mikali Amduso, et al., Plaintiffs,

v.Republic of Sudan, et al., Defendants.

Judith Abasi Mwila, et al., Plaintiffs,

v.Islamic Republic of Iran, et al., Defendants.

Mary Onsongo, et al., Plaintiffs,

v.Republic of Sudan, et al., Defendants.

Rizwan Khaliq, et al., Plaintiffs,

v.Republic of Sudan, et al., Defendants.

Monicah Okoba Opati, et al., Plaintiffs,

v.Republic of Sudan, et al., Defendants.

Civil Action No. 01-2244 (JDB)

Civil Action No. 08-1349 (JDB)

Civil Action No. 08-1361 (JDB)

Civil Action No. 08-1377 (JDB)

Civil Action No. 08-1380 (JDB)

Civil Action No. 10-356 (JDB)

Civil Action No. 12-1224 (JDB)

United States District Court, District of Columbia.

Signed March 23, 2016

Annie P. Kaplan, Caragh Glenn Fay, Joseph William Fay, Molly Patricia Hoffman, Thomas Fortune Fay, Fay Kaplan Law PA, John Vail, John Vail Law PLLC, Washington, DC, Stephen Norman Weiss, Law Office of Stephen Norman Weiss, New York, NY, William Coleman Dowden, III, Capitol Heights, MD, Ronald Alvin Karp, Karp, Frosh, Wigodsky & Norwind, P.A., Rockville, MD, Tuna Mecit, Silver Spring, MD, for James Owens, et al.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

On August 7, 1998, the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, were devastated by the nearly simultaneous detonations of a pair of truck bombs. More than 200 people were killed, including 12 Americans, and thousands were injured. There is no doubt the attacks were the work of al Qaeda, a grisly precursor to the bombing of the U.S.S. Cole and the atrocities of September 11, 2001.

Starting in 2001, various groups of plaintiffs—comprising individuals directly injured in the two embassy bombings, estates of individuals who were killed, and family members of the wounded

and dead—filed lawsuits against the Republic of Sudan and the Islamic Republic of Iran, charging those nations with responsibility for the attacks. With respect to Sudan, the only defendant relevant for present purposes, the essence of the plaintiffs' allegations was that Sudan had given Osama bin Laden and al Qaeda safe haven throughout the mid-1990s, as well as other forms of assistance, and that this support had allowed al Qaeda to grow, train, plan, and eventually carry out the 1998 embassy attacks. In the plaintiffs' view, this support of al Qaeda was sufficient both to divest Sudan of the immunity generally granted to foreign states by the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq., and also to render it liable for the plaintiffs' physical and emotional injuries stemming from the attacks.

Sudan hired U.S. counsel and defended against the first of these lawsuits in its early stages. But even as this Court denied its repeated requests that the suit be dismissed, Sudan stopped paying and communicating with its lawyers, and eventually ignored the case entirely. Sudan never participated at all in the six other cases at issue here. Because the FSIA requires plaintiffs to substantiate their claims with evidence even when a foreign sovereign defaults, in October 2010 the Court held a three-day hearing at which the plaintiffs presented a range of evidence about the bombings and Sudan's relationship with al Qaeda. Roughly a year later, the Court issued an opinion in which it concluded that Sudan had indeed provided material support to al Qaeda, was not entitled to sovereign immunity, and was liable for the plaintiffs' injuries. The Court then referred the hundreds of claims to special masters, who heard evidence relevant to individual plaintiffs' damages, reported their findings to the Court, and recommended awards. Between March and October of 2014, the Court entered final judgments against Sudan in all seven cases, awarding a total of over $10 billion in compensatory and punitive damages.

One month after the entry of the first of these final judgments, Sudan reappeared with new counsel and began to participate in the litigation. Sudan first filed notices of appeal in all seven cases. Then, in April 2015, it filed with this Court motions to vacate all of the judgments pursuant to Federal Rule of Civil Procedure 60(b). The Court of Appeals ordered the appeals held in abeyance pending this Court's resolution of the motions to vacate, which are now ripe for decision.

The Court will deny Sudan's motions in all respects. Sudan's years of total nonparticipation in this litigation, despite full awareness of its existence, cannot be justified as “excusable neglect.” Nor did this Court lack subject-matter jurisdiction for any of the reasons Sudan offers: these bombings were acts of “extrajudicial killing” within the meaning of the jurisdictional provision; there was sufficient evidence of the necessary jurisdictional facts; and the jurisdictional provision extends to claims of emotional harms by immediate family members. Sudan's nonjurisdictional arguments also fail: some are without merit, and for those with some heft, Sudan fails to explain what would justify relief from a final judgment.

Perhaps Sudan could have prevailed in these cases, fully or partially, if it had defended in a timely fashion. But, as a result of either deliberate choice or inexcusable recklessness, it did not do so. Either way, Sudan has no one to blame for the consequences but itself.

BACKGROUND

STATUTORY BACKGROUND

Because many of the issues Sudan has raised in its vacatur motions concern the proper interpretation of the Foreign Sovereign Immunities Act (FSIA), and because Congress amended the FSIA significantly during the long course of this litigation, the Court begins with a brief overview of the Act and its history.

Enacted in 1976, “the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). The Act provides that federal district courts shall have jurisdiction over civil claims against foreign states “with respect to which the foreign state is not entitled to immunity either under sections 1605–1607 of [Title 28] or under any applicable international agreement.” 28 U.S.C. § 1330(a). Subject-matter jurisdiction is thus intertwined with immunity: insofar as a foreign sovereign defendant is entitled to immunity, a federal court lacks subject-matter jurisdiction to hear claims against it. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). And § 1604 provides that foreign states are generally entitled to immunity, subject to specific statutory exceptions, most notably those contained in § 1605. 28 U.S.C. §§ 1604 –1605.

As originally enacted, § 1605's exceptions generally codified the “restrictive” theory of foreign sovereign immunity, under which “immunity is confined to suits involving the foreign sovereign's public acts, and does not extend to cases arising out of a foreign state's strictly commercial acts.” Verlinden, 461 U.S. at 487–88, 103 S.Ct. 1962. None of the original immunity exceptions overtly had anything to do with terrorism or human rights abuses. In 1996, however, Congress enacted § 1605(a)(7), commonly referred to as the “terrorism exception” to foreign sovereign immunity. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 221, 110 Stat. 1214, 1241–43 (“Jurisdiction for Lawsuits Against Terrorist States”). Subject to certain exceptions, that provision removed immunity in cases

in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

28 U.S.C. § 1605(a)(7) (2006). Only foreign states designated as state sponsors of terrorism under certain federal statutes could be sued under this provision. Id.§ 1605(a)(7)(A). And a suit could not proceed if “neither the claimant nor the victim was a national of the United States ... when the act upon which the claim [was] based occurred.” Id.§ 1605(a)(7)(B)(ii).

Like the other provisions in § 1605, subsection (a)(7) eliminated immunity and thereby created federal jurisdiction for a certain set of claims, but it did not provide plaintiffs with a federal cause of action. Cicippio – Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1032 (D.C.Cir.2004) ; see alsoRepublic of Austria v. Altmann, 541 U.S. 677, 695 n.15, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004) (“The [FSIA] does not create or modify any causes of action ....”). Shortly after the enactment of § 1605(a)(7), however, in what is frequently called the “Flatow Amendment,” Congress did create a related federal cause of action. The Flatow Amendment provided that

an official, employee, or agent of a foreign state designated as a state sponsor of terrorism ... while acting within the scope of his or her office, employment, or agency shall be liable to a United States national or the national's legal representative for personal injury or death caused by acts of that official, employee, or agent for which the courts of the United States may maintain jurisdiction under section 1605(a)(7) of title 28.

Pub. L. No. 104-208, § 589, 110 Stat. 3009, 3009-172 (1996). Although several district courts initially held that the Flatow Amendment created a cause of action against foreign states, in 2004 the D.C. Circuit clarified that the statute “only provides a private right of action against officials, employees, and agents of a foreign state, not against the foreign state itself.” Cicippio – Puleo, 353 F.3d at 1033....