Owens v. Republic of Sudan

Decision Date11 July 2008
Docket NumberNo. 06-5079.,No. 05-5173.,05-5173.,06-5079.
Citation531 F.3d 884
PartiesJames OWENS, et al., Appellees v. REPUBLIC OF the SUDAN and Interior Ministry of the Republic of the Sudan, Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (No. 01cv02244).

Knox Bemis argued the cause and filed the briefs for appellants.

Steven R. Perles argued the cause for appellees. With him on the brief were Thomas Fortune Fay and Edward B. MacAllister.

Before: SENTELLE, Chief Judge, and GINSBURG and BROWN, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge:

This case arises from the alleged role of the Republic of Sudan and its Interior Ministry ("Sudan") in the simultaneous U.S. embassy bombings in Nairobi, Kenya, and Dar es Salaam, Tanzania, on August 7, 1998, carried out by the terrorist group al Qaeda. Several of those injured in the bombings and their family members brought suit against Sudan under 28 U.S.C. § 1605(a)(7), alleging that Sudan materially supported the embassy attacks. This case comes to us on interlocutory appeal from the denial of Sudan's motion to dismiss. We affirm the district court's holdings that § 1605(a)(7) includes no unconstitutional delegation of Congress's power to define the jurisdiction of the lower federal courts and that the Third Amended Complaint sufficiently alleges causation to meet § 1605(a)(7)'s jurisdictional requirement. We remand the case to the district court for further proceedings.

I. Background
A. District Court

Plaintiffs-appellees are United States nationals who were injured in the August 7, 1998 bombings of the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, and family members of those injured in the attacks perpetrated by al Qaeda. Appellees claim Sudan materially supported the attacks by sheltering and protecting al Qaeda "from interference while carrying out planning and training of various persons for terrorist attacks, including the attacks of August 7, 1998." Third Amended Complaint ("Compl.") ¶ 8. Appellees assert that United States courts have jurisdiction over Sudan, a foreign sovereign, and its Interior Ministry under the state sponsor of terrorism exception, 28 U.S.C. § 1605(a)(7), to the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602-11.

On March 10, 2004, Sudan moved to dismiss appellees' Second Amended Complaint for lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, the Act of State Doctrine, and the Political Question Doctrine. Sudan also argued that 28 U.S.C. § 1605(a)(7) is an unconstitutional delegation of power to the Executive Branch because it allows the Secretary of State to determine the jurisdiction of the federal courts.

On March 29, 2005, the district court denied Sudan's motion to dismiss but also ordered appellees to file an amended complaint that would state with more specificity the "material support" Sudan provided to the perpetrators of the embassy bombings and would allege that a Sudanese official provided this material support while "acting within the scope of his office, employment, or agency." Owens v. Republic of Sudan, 374 F.Supp.2d 1, 15, 17 (D.D.C.2005) (internal quotation marks omitted). Sudan appealed this decision, but we held the appeal in abeyance pending possible further action by the district court.

On May 3, 2005, appellees filed a Third Amended Complaint in response to the district court's March 29th decision. This complaint stated with significantly more specificity the allegations of material support on the part of Sudan. Sudan again moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. On January 26, 2006, the district court denied Sudan's motion. Owens v. Republic of Sudan, 412 F.Supp.2d 99 (D.D.C. 2006). Sudan appealed this decision.

In this appeal, we address issues in the consolidated appeals from the district court's March 29, 2005 and January 26, 2006 orders. Sudan asks us to reverse the district court's denial of its motion to dismiss for two reasons. First, Sudan argues that 28 U.S.C. § 1605(a)(7) includes an unconstitutional delegation of Congress's power to define the jurisdiction of the lower federal courts. Second, Sudan argues that appellees' Third Amended Complaint fails to allege sufficient facts to meet the jurisdictional causation requirement of § 1605(a)(7).

B. § 1605A's Enactment

While this consolidated appeal from the March 29, 2005 and January 26, 2006 orders was pending in this Court, Congress amended the state sponsor of terrorism exception. On January 28, 2008, the President signed the National Defense Authorization Act for Fiscal Year 2008 ("NDAA"), Pub.L. No. 110-181, 122 Stat. 3. Section 1083 of the NDAA strikes 28 U.S.C. § 1605(a)(7) from the U.S.Code and replaces it with a new "[t]errorism exception to the jurisdictional immunity of a foreign state." 122 Stat. at 338-44 (codified at 28 U.S.C. § 1605A). This statutory change raised questions about the application of § 1605A to pending cases such as this one and whether § 1605(a)(7) continues to apply to them. We settled this issue in Simon v. Republic of Iraq, 529 F.3d 1187 (D.C.Cir.2008), in which we held that we "retained jurisdiction over cases pending pursuant to former § 1605(a)(7) when the Congress enacted the NDAA." Id. at 1191.

For the reasons expressed in Simon, and absent any further action by the district court since § 1605A's enactment, § 1605(a)(7) continues to apply to this case. Therefore, the two issues raised by Sudan remain relevant despite the recent changes to the state sponsor of terrorism exception. We resolve these issues in the discussion that follows and remand this case to the district court for further proceedings.

II. Analysis

United States Courts of Appeal do not ordinarily have jurisdiction over interlocutory appeals, that is, appeals from orders that do not conclusively end the litigation, 28 U.S.C. § 1291, such as the denial of a motion to dismiss. But when such a denial subjects a foreign sovereign to jurisdiction, the order is "subject to interlocutory appeal under the collateral order doctrine." El-Hadad v. United Arab Emirates, 216 F.3d 29, 31 (D.C.Cir. 2000); see Simon, at 1191 (holding that the NDAA § 1083(a)(f) (enacted January 28, 2008), which prohibits the taking of appeals "not conclusively ending the litigation" unless "taken pursuant to section 1292(b) of [Title 28]," does not apply to § 1605(a)(7) cases pending on appeal when the statute was enacted and continuing under § 1605(a)(7)). We review the district court's denial of Sudan's motion to dismiss for lack of subject matter jurisdiction de novo. See Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1028 (D.C.Cir.1997).

A. Delegation Challenge

Sudan asserts that the courts of the United States lack jurisdiction because Sudan, as a foreign state, enjoys foreign sovereign immunity from suits in those courts. The fundamental principle upon which this argument rests is the unarguable proposition that federal courts are courts of limited jurisdiction. Unlike the Supreme Court, which has some limited elements of jurisdiction afforded by the Constitution, the inferior courts of the United States, such as this court and the district court from which this appeal lies, are creatures of statute and possess no jurisdiction except as afforded by congressional enactment. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005); Belhas v. Ya'alon, 515 F.3d 1279, 1282-83 (D.C.Cir. 2008). Congress adopted the doctrine of foreign sovereign immunity in 28 U.S.C. § 1604, which provides that subject to exceptions not here relevant, "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607." Therefore, unless the present action falls within one of the exceptions created by the sections incorporated in § 1604, the district court had no jurisdiction over the instant action and should have dismissed the case. We must therefore look to those statutes to determine if jurisdiction lies over appellees' claims.

Appellees argue, and the district court concluded, that the court had jurisdiction under 28 U.S.C. § 1605(a)(7), which provides that:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ... 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 ... 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....

However, this exception to foreign sovereign immunity applies only where the foreign state has been "designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U.S.C.App. § 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. § 2371) at the time the act occurred." 28 U.S.C. § 1605(a)(7)(A) (Supp. V.2005). The Export Administration Act of 1979 ("EAA") and the Foreign Assistance Act of 1961 ("FAA") assign to the Secretary of State the power to determine whether the government of a country "has repeatedly provided support for acts of international terrorism." 50 U.S.C.App. § 2405(j)(1)(A); 22 U.S.C. § 2371(a) (identical language). Therefore, the jurisdiction of the court under this statute is dependent upon the designation of the foreign state (in this case, Sudan) as a state sponsor of terrorism by the Secretary. It is undisputed that on August 12, 1993, Secretary of State Warren Christopher exercised his authority under...

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