Owens v. Republic Sudan, No. 14-5105

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Parties 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
Decision Date28 July 2017
Docket Number14-7207,No. 14-5105,14-7127,16-7052,16-7049,16-7045,14-7128,14-7125,16-7050,14-7124,16-7044,16-7046,C/w 14-5106,16-7048,14-5107

864 F.3d 751

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

No. 14-5105
C/w 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.

Argued October 11, 2016
Decided July 28, 2017
Rehearing En Banc Denied October 3, 2017


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, Washington, DC, 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, Washington, DC, and Stephen A. Saltzburg, entered appearances.

Before: Henderson and Rogers, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Ginsburg, Senior Circuit Judge:

Table of Contents

I. Background 762

A. The FSIA Terrorism Exception 763

B. History of this Litigation 765

II. Extrajudicial Killings 769

A. Textual Arguments 770

1. State action requirements under international law 770

2. International law and the TVPA 772

3. State action requirements in the TVPA and the FSIA terrorism exception 773

B. Statutory Purpose 775

C. Statutory History 777

III. Sufficiency of the Evidence Supporting Jurisdiction 778

A. The Evidentiary Hearing 779

1. The sources of evidence presented 779

2. The district court's findings of fact 781

B. Standard of Review 784

C. Admissibility of the Evidence 786

1. The expert testimony 787

2. The State Department reports 792

D. Sufficiency of the Evidence 793

1. Proximate causation 794

2. Sudan's specific intent 798

IV. Timeliness of Certain Claims 799

V. Jurisdiction and Causes of Action for Claims of Third Parties 804

A. Jurisdiction 805

B. Causes of Action 807

864 F.3d 762

C. Intentional Infliction of Emotional Distress 809

VI. Punitive Damages 812

A. Whether to Review the Awards of Punitive Damages 812

B. Retroactivity of Punitive Damages Under § 1605A(c) 814

1. Section 1605A operates retroactively 815

2. Clear statement of retroactive effect 816

C. Retroactivity of Punitive Damages Under State Law 817

VII. Vacatur Under Rule 60(b) 818

A. Excusable Neglect Under Rule 60(b)(1) 819

B. Extraordinary Circumstances Under Rule 60(b)(6) 824

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

864 F.3d 763

FSIA terrorism exception, to which we now turn.

A. The FSIA Terrorism Exception

Enacted in 1976, the FSIA provides the sole means for suing a foreign sovereign in the courts of the United States. Argentine Republic v. Amerada Hess Shipping Corp. , 488 U.S. 428, 439, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). A foreign state is presumptively immune from the jurisdiction of the federal and state courts, 28 U.S.C. § 1604, subject to several exceptions codified in §§ 1605, 1605A, 1605B, and 1607.

When first enacted, the FSIA generally codified the "restrictive theory" of sovereign immunity, which had governed sovereign immunity determinations since 1952. Under the restrictive theory, states are immune from actions arising from their public acts but lack immunity for their strictly commercial acts. Verlinden B.V. v. Cent. Bank of Nigeria , 461 U.S. 480, 487-88, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). Thus, the original exceptions in the FSIA withdrew immunity for a sovereign's commercial activities conducted in or causing a direct effect in the United States, 28 U.S.C. § 1605(a)(2), and for a few other activities not relevant here. See 28 U.S.C. § 1605(a)(1)-(6).

None of the original exceptions in the FSIA created a substantive cause of action against a foreign state. Rather, the FSIA provided "the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances" except that it prohibited the award of punitive damages against a sovereign. 28 U.S.C. § 1606. As a result, a plaintiff suing a foreign sovereign typically relied upon state substantive law to redress his grievances. In this way, the FSIA "operate[d] as a 'pass-through' to state law principles," Pescatore v. Pan Am. World Airways, Inc. , 97 F.3d 1, 12 (2d Cir. 1996), granting jurisdiction yet leaving the underlying substantive law unchanged, First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba , 462 U.S. 611, 620, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983).

Until 1996 the FSIA provided no relief for victims of a terrorist attack. Courts consistently rebuffed plaintiffs' efforts to fit terrorism-related suits into an existing exception to sovereign immunity. See, e.g. , Saudi Arabia v. Nelson , 507 U.S. 349, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) ; Cicippio v. Islamic Republic of Iran , 30 F.3d 164 (D.C. Cir. 1994) ; Smith v. Socialist People's Libyan Arab Jamahiriya , 886 F.Supp. 306 (E.D.N.Y. 1995). This changed with the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, which added a new exception to the FSIA withdrawing immunity and granting jurisdiction over 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 ... 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.

Id. at § 221, 110 Stat. at 1241-43 (codified at 28 U.S.C. § 1605(a)(7) (2006) (repealed)).

This new "terrorism exception" applied only to (1) a suit in which the claimant or the victim was a U.S. national, 28 U.S.C. § 1605(a)(7)(B)(ii), and (2) the defendant state was designated a sponsor of terrorism under State Department regulations at or around the time of the act...

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138 practice notes
  • Akhmetshin v. Browder, No. 19-7129
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 13 Abril 2021
    ...given the uncertainty of District law and the importance of this issue, that "choice [is] not ours to make." Owens v. Republic of Sudan, 864 F.3d 751, 811 (D.C. Cir. 2017), certified question answered, 194 A.3d 38 (D.C. 2018), vacated and remanded on other grounds sub nom. Opati v. Republic......
  • Kaplan v. Cent. Bank of the Islamic Republic of Iran, No. 16-7142
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 20 Julio 2018
    ...same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 1606 ; see Owens v. Republic of Sudan , 864 F.3d 751, 763-64 (D.C. Cir. 2017) (noting that because "[n]one of the original exceptions in the FSIA created a substantive cause of action against a......
  • Ashton v. Al Qaeda Islamic Army (In re Terrorist Attacks On Sept. 11, 2001), 03–MDL–1570(GBD)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 28 Marzo 2018
    ...more liberal than the substantive causation elements of any one claim. See Rux , 461 F.3d at 472 ; see also Owens v. Republic of Sudan, 864 F.3d 751, 778 (D.C. Cir. 2017) ("Establishing ... causation for jurisdictional purposes is a lighter burden than proving a winning case on the merits."......
  • Crystallex Int'l Corp. v. Bolivarian Republic De Venezuela (In re De Venezuela), Nos. 18-2797 & 18-3124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 29 Julio 2019
    ...while many courts have applied a preponderance-of-the evidence standard to inquiries under it. See, e.g. , Owens v. Republic of Sudan , 864 F.3d 751, 784 (D.C. Cir. 2017) ; Sachs v. Republic of Austria , 737 F.3d 584, 589 (9th Cir. 2013), rev’d on other grounds sub nom. OBB Personenverkehr ......
  • Request a trial to view additional results
139 cases
  • Akhmetshin v. Browder, No. 19-7129
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 13 Abril 2021
    ...given the uncertainty of District law and the importance of this issue, that "choice [is] not ours to make." Owens v. Republic of Sudan, 864 F.3d 751, 811 (D.C. Cir. 2017), certified question answered, 194 A.3d 38 (D.C. 2018), vacated and remanded on other grounds sub nom. Opati v. Republic......
  • Kaplan v. Cent. Bank of the Islamic Republic of Iran, No. 16-7142
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 20 Julio 2018
    ...same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 1606 ; see Owens v. Republic of Sudan , 864 F.3d 751, 763-64 (D.C. Cir. 2017) (noting that because "[n]one of the original exceptions in the FSIA created a substantive cause of action against a......
  • Ashton v. Al Qaeda Islamic Army (In re Terrorist Attacks On Sept. 11, 2001), 03–MDL–1570(GBD)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 28 Marzo 2018
    ...more liberal than the substantive causation elements of any one claim. See Rux , 461 F.3d at 472 ; see also Owens v. Republic of Sudan, 864 F.3d 751, 778 (D.C. Cir. 2017) ("Establishing ... causation for jurisdictional purposes is a lighter burden than proving a winning case on the merits."......
  • Crystallex Int'l Corp. v. Bolivarian Republic De Venezuela (In re De Venezuela), Nos. 18-2797 & 18-3124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 29 Julio 2019
    ...while many courts have applied a preponderance-of-the evidence standard to inquiries under it. See, e.g. , Owens v. Republic of Sudan , 864 F.3d 751, 784 (D.C. Cir. 2017) ; Sachs v. Republic of Austria , 737 F.3d 584, 589 (9th Cir. 2013), rev’d on other grounds sub nom. OBB Personenverkehr ......
  • Request a trial to view additional results
1 books & journal articles
  • HORIZONTAL CHOICE OF LAW IN FEDERAL COURT.
    • United States
    • University of Pennsylvania Law Review Vol. 169 Nbr. 8, August 2021
    • 1 Agosto 2021
    ...away from the state courts and into federal courts...."). (88) 28 U.S.C. [section] 1606 (2018). (89) See Owens v. Republic of Sudan, 864 F.3d 751, 763 (D.C. Cir. 2017), certified question answered, 194 A.3d 38 (D.C. App. 2018); Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1,12 (2d Cir.......

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