Republic of Sudan v. Owens, 17-SP-837

• Decision Date: 20 September 2018
• Docket Number: No. 17-SP-837,17-SP-837
• Citation: 194 A.3d 38
• Parties: REPUBLIC OF SUDAN, Ministry of External Affairs, et al., Appellants, v. James OWENS, et al., Appellees.
• Court: D.C. Court of Appeals

194 A.3d 38

REPUBLIC OF SUDAN, Ministry of External Affairs, et al., Appellants,

v.James OWENS, et al., Appellees.

No. 17-SP-837

District of Columbia Court of Appeals.

Argued February 14, 2018

Decided September 20, 2018

Christopher M. Curran, with whom Nicole Erb, Claire A. DeLelle, Washington, DC, and Celia A. McLaughlin, were on the brief, for appellants.

Matthew D. McGill, with whom Stuart H. Newberger, Clifton S. Elgarten, Aryeh S. Portnoy, Thomas Fortune Fay, Lochlan F. Shelfer, Steven R. Perles, Edward B. Macallister, Jane Carol Norman, Washington, DC, John Vail, Michael J. Miller, and David J. Dickens, Orange, VA, were on the brief, for appellees.

Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, Loren L. AliKhan, Deputy Solicitor General at the time the brief was filed, and Lucy E. Pittman, Assistant Attorney General, were on the brief for the District of Columbia as amicus curiae in support of appellees.

Ellen M. Bublick and George Anhang were on the brief for Law Professors Ellen M. Bublick and Paul T. Hayden as amici curiae in support of appellees.

Before Fisher and Thompson, Associate Judges, and Farrell, Senior Judge.

Fisher, Associate Judge:

Almost simultaneously on August 7, 1998, al Qaeda terrorists detonated powerful truck bombs outside the United States embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, killing over two hundred people and injuring more than a thousand others. Owens v. Republic of Sudan , 864 F.3d 751, 762 (D.C. Cir. 2017). Three years after the attacks, groups of plaintiffs began filing suit in the United States District Court for the District of Columbia, seeking to hold Sudan accountable for its role in the bombings. Id. Eventually, the case reached the United States Court of Appeals for the District of Columbia Circuit and, pursuant to D.C. Code § 11-723 (2012 Repl.), it certified the following question of District of Columbia law to this court:

Must a claimant alleging emotional distress arising from a terrorist attack that killed or injured a family member have been present at the scene of the attack in order to state a claim for intentional infliction of emotional distress?

Id. at 812. For the reasons that follow, we answer this question "No."

I. Background

The D.C. Circuit and the district court have fully recounted the relevant facts and procedural history, see id. at 765–69, 781–84 ; Owens v. Republic of Sudan , 826 F.Supp.2d 128, 133–35, 139–46 (D.D.C. 2011), aff'd in part, vacated in part , 864 F.3d 751 (D.C. Cir. 2017), so we will discuss them only briefly here.

Much of the litigation in federal court centered on the Foreign Sovereign Immunity Act (FSIA), which generally bars suits against foreign sovereigns in federal and state courts. 28 U.S.C. § 1604 (2012). The FSIA contains exceptions, including the "[t]errorism exception," 28 U.S.C. § 1605A, which strips foreign states of immunity, and grants courts jurisdiction, in cases where certain plaintiffs sue state sponsors of terrorism for committing, or "provi[ding] material support" for, enumerated terrorist activities.¹

§ 1605A(a)(1), (2). Section 1605A(c) establishes a private right of action for the same conduct that gives rise to jurisdiction; however, only a subcategory of those plaintiffs who obtain jurisdiction under the terrorism exception can also invoke the statutory cause of action. 864 F.3d at 809. The remainder must assert claims based "upon alternative sources of substantive law," such as state tort law. Id. at 808 (analyzing §§ 1605A and 1606 ).

Appellees are a subset of the plaintiffs who sued Sudan for its role in the embassy bombings. All of them are non-U.S. nationals related to someone who died or suffered injuries in one of the attacks. They allege that the injuries to their family members caused them severe emotional distress, and seek to recover damages for that injury to themselves.

The district court determined, 826 F.Supp.2d at 148, and the D.C. Circuit later affirmed, 864 F.3d at 769, that it had jurisdiction over appellees' claims under § 1605A. However, the district court also concluded that appellees could not rely on § 1605A(c)'s cause of action and would instead need to invoke an independent legal basis for recovery. 826 F.Supp.2d at 153. After conducting a choice of law analysis, the court determined that District of Columbia law governed the "claims that [did] not arise under the federal cause of action at § 1605A(c)," id. at 157, and, applying our tort law, held Sudan liable to appellees for intentional infliction of emotional distress ("IIED"). See, e.g. , Onsongo v. Republic of Sudan , 60 F.Supp.3d 144, 149 (D.D.C. 2014), aff'd in part, vacated in part sub nom . Owens v. Republic of Sudan , 864 F.3d 751 (D.C. Cir. 2017).

The orders finding Sudan liable and awarding damages to appellees took the form of default judgments. 864 F.3d at 767. Sudan did not participate in much of the litigation and even declined to engage in the evidentiary hearings held on issues related to jurisdiction, liability, and damages. Id. However, after the entry of default judgments, Sudan adopted a more active strategy. It filed motions for relief from the judgments under Fed. R. Civ. P. 60(b), and appealed the denial of that motion, as well as the underlying default judgments, to the D.C. Circuit. Id. at 768.

In both proceedings Sudan argued that appellees could recover for IIED only if they were present when their family members were killed or injured, id. at 809–10 ; Owens v. Republic of Sudan , 174 F.Supp.3d 242, 286–87 (D.D.C. 2016), a requirement the district court had not imposed, see, e.g. , Onsongo , 60 F.Supp.3d at 149. On appeal, the D.C. Circuit reviewed our case law and was "genuinely uncertain" whether this jurisdiction "would apply the presence requirement in the Second Restatement of Torts to preclude recovery for IIED by family members absent from the scene of a terrorist bombing." 864 F.3d at 812. Consequently, it certified to us the question of law quoted above. Id.

II. The General Rule

The certified question raises two issues of first impression. We must, as a general matter, identify the elements of an IIED claim arising from injury to a member of the plaintiff's immediate family. Depending on the answer to that question, we may then need to determine whether to permit more expansive liability when injury to the family member was caused by a terrorist attack.

Our analysis starts with § 46 of the Restatement (Second) of Torts (Am. Law Inst. 1965) ("Second Restatement" or "Restatement Second"), which defines the elements of IIED liability as follows:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.

Section 46(1) governs IIED claims where the defendant "intentionally or recklessly causes severe emotional distress" to the plaintiff. In such cases the defendant typically has targeted the plaintiff. See, e.g. , Howard Univ. v. Best , 484 A.2d 958, 985–86 (D.C. 1984) (holding that plaintiff "made out a prima facie case of intentional infliction of emotional distress ... [by] demonstrat[ing] repeated ‘sexual harassment’ by ... her supervisor"). By contrast, § 46(2)(a) applies when defendants "direct" their extreme and outrageous acts at a third person and "intentionally or recklessly cause[ ] severe emotional distress" to a member of that person's "immediate family who is present at the time."² This court has addressed many § 46(1)-type claims and, in doing so, has expressly adopted the Second Restatement's approach. See, e.g. , Sere v. Grp. Hospitalization, Inc. , 443 A.2d 33, 37 (D.C. 1982) (quoting elements of IIED from Second Restatement § 46(1) ); Waldon v. Covington , 415 A.2d 1070, 1076 & n.21 (D.C. 1980) (quoting from § 46 of Second Restatement). However, none of our published opinions has analyzed an IIED claim where § 46(2)(a) might apply. As a result, before we can discuss cases involving terrorist attacks, we must determine whether § 46(2)(a), and with its requirement that the plaintiff be "present at the time," generally governs IIED claims where the plaintiff's distress was caused by harm to a member of his or her immediate family.

We conclude that it does. As noted, this court has embraced the Restatement Second's approach to IIED liability. Subsection (2)(a) is an integral part of that regime and, in formally adopting that subsection today, we make explicit what our earlier cases implied. This holding is consistent with our customary caution when facing "the problem of potentially infinite liability that has been of central judicial concern in emotional distress cases." Hedgepeth v. Whitman Walker Clinic , 22 A.3d 789, 801–02 (D.C. 2011) (en banc). For decades, this court permitted relief for negligent infliction of emotional distress only "if the distress result[ed] from a physical impact and [was] accompanied by physical injury." Id. at 796. While we ultimately abandoned that rule, we replaced it with new ones deliberately crafted to contain "self-limiting principle[s]," id. at 812, and to avoid "virtually infinite liability," Williams v. Baker , 572 A.2d 1062, 1069 (D.C. 1990) (en banc).³

Like the rules cabining relief for negligent infliction of emotional distress, § 46(2)(a) defines this related tort to guard against potentially unbounded liability. Indeed, the reporters of the Second Restatement explained that § 46(2)(a)'s "presence"...