Rux v. Republic of Sudan
| Decision Date | 01 September 2006 |
| Docket Number | No. 05-2003.,05-2003. |
| Citation | 461 F.3d 461 |
| Parties | Olivia RUX, individually and as next friend for I.M.O., a minor; Jamie Owens, individually and as next friend for I.M.O., a minor; Sharla Costelow, individually and as next friend for E.C. and B.C., minors; Novella Wiggins, individually and as next friend for J.R.M., Jr., a minor; Lorrie D. Triplett, individually and as next friend for Andrea Triplett and Savannah Triplett; Jennifer Clodfelter, individually and as next friend for Noah Clodfelter; Kenyon Embry, individually and as next friend for Capri Dumar; Ronald W. Francis; Jacqueline Saunders, individually and as next friend for I.S. and J.S., minors; Sandra Francis; Rogelo Santiago; Simeona Santiago; Sarah Guana Esquivel; Jesse Nieto; Thomas Wibberly; Patricia Wibberly; Theodis Triplett; Wayne Triplett; Reed Triplett; Gary Swenchonis, Sr.; Deborah Swenchonis; Shalala Swenchonis; Kate Brown; Sean Walsh; Kevin Roy; Lou Gunn; Mona Gunn; Jamal Gunn; Jason Gunn; Anton J. Gunn; Leroy Parlett; Etta Parlett, individually and as next friend for H.P., a minor; Kera Miller; Matthew Parlett; John Clodfelter; Gloria Clodfelter; Joseph Clodfelter; Toni Wibberly; Diane McDaniels; Teresa Smith; George Costelow; Dorothy Costelow; Frederica McDaniels-Bess, Plaintiffs-Appellees, v. REPUBLIC OF SUDAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Douglas Knox Bemis, Jr., Hunton & Williams, Washington, D.C., for Appellant. Andrew C. Hall, Hall, Joseph & Lamb, P.A., Miami, Florida, for Appellees. ON BRIEF: Gregory N. Stillman, Carl D. Gray, Hunton & Williams, Norfolk, Virginia; Thomas R. Snider, Hunton & Williams, Washington, D.C., for Appellant. Mary Jane Hall, Kaufman & Canoles, P.A., Norfolk, Virginia; James Cooper-Hill, Rockport, Texas; Nelson M. Jones, Nicholas & Jones, L.L.P., Houston, Texas; Alan W. Young, Portola Valley, California, for Appellees.
Before WIDENER and DUNCAN, Circuit Judges, and HENRY F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation.
Affirmed in part and dismissed in part by published opinion. Judge DUNCAN wrote the opinion, in which Judge WIDENER and Judge FlOYD joined.
In this action for damages brought against it by relatives of American sailors killed in the terrorist bombing of the U.S.S. Cole ("Plaintiffs"), the Republic of Sudan ("Sudan") appeals an order of the district court largely denying its motion to dismiss. On appeal, Sudan argues both that the district court erred in denying its motion to dismiss for lack of subject matter jurisdiction and also that this court should exercise pendent appellate jurisdiction over, and reverse, the district court's denial of its motion to dismiss for lack of personal jurisdiction and improper venue. Sudan also argues that this court should exercise pendent appellate jurisdiction over and consider for the first time its motion to dismiss for lack of standing, an issue on which the district court deferred action. Because we find that the district court's exercise of subject matter jurisdiction was proper and that there is no basis to exercise pendent appellate jurisdiction over the remaining issues, we affirm the district court's denial of Sudan's motion to dismiss for lack of subject matter jurisdiction and dismiss the remainder of Sudan's appeal.
This case arises out of the October 12, 2000, bombing of the U.S.S. Cole in which seventeen American sailors were killed. The bombing, alleged in the Amended Complaint to have been planned and executed by the terrorist organization Al-Qaeda, occurred while the ship was berthed in Aden Harbor in Yemen. Plaintiffs, consisting of more than fifty surviving family members of the sailors who were killed, brought this action to recover for damages resulting from their deaths.
The Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C.A. §§ 1602-1611 (West 1994 & Supp.2006), generally immunizes foreign states such as Sudan from suit in federal court. See § 1604. Section 1605(a)(7) of FSIA, however, provides an exception for suits against state sponsors of terrorism for damages arising from certain terrorist acts identified in the statute. § 1605(a)(7). Plaintiffs invoked § 1605(a)(7) based on allegations that Sudan had provided various forms of support to Al-Qaeda both during the years preceding and in the orchestration of the bombing of the U.S.S. Cole.
Plaintiffs filed their original complaint on July 16, 2004, and subsequently amended it several times. They effected service of process on Sudan on December 16, 2004. When Sudan failed to answer within the prescribed time, the Clerk of Court entered default against it. Plaintiffs then moved for default judgment, which the district court scheduled for hearing. Before the date of the hearing, Sudan filed a Motion to Vacate Entry of Default and Cancel Evidentiary Hearing. In that motion, Sudan argued that the district court lacked personal jurisdiction because of insufficient process and service of process. Following a hearing on Sudan's motion, the district court vacated the entry of default with Plaintiffs' consent but held that Sudan had waived its right to contest personal jurisdiction and that Plaintiffs had effected proper service on Sudan.
On August 3, 2005, Sudan filed its Motion to Dismiss Plaintiffs' Amended Complaint with Prejudice. In that motion, Sudan argued (1) that the court lacked subject matter jurisdiction under FSIA because Plaintiffs failed to plead sufficient jurisdictional facts; (2) that Sudan lacked sufficient minimum contacts with Virginia to support personal jurisdiction; (3) that venue was improper in the Eastern District of Virginia; (4) that Plaintiffs' process was insufficient; (5) that Plaintiffs' service of process was insufficient; and (6) that Plaintiffs had failed to state a claim on which relief could be granted for various reasons, including lack of standing.
On August 26, 2005, the district court entered the order, which is at issue in this appeal, denying most of Sudan's motion to dismiss. In that order, the district court held: (1) that Plaintiffs had pleaded sufficient facts to support subject matter jurisdiction under § 1605(a)(7); (2) that Sudan had waived its right to contest personal jurisdiction, service of process, and venue; (3) that Plaintiffs had nevertheless effected proper service of process on Sudan; (4) that the district court had personal jurisdiction over Sudan; and (5) that the Eastern District of Virginia was a proper venue for the suit. The district court took under advisement Sudan's motion to dismiss for failure to state a claim until after Sudan filed an answer. In so doing, the district court specifically deferred ruling on Sudan's argument that Plaintiffs lacked standing. Sudan timely appealed.
In this appeal, Sudan argues that the district court erred in denying its motion to dismiss for lack of subject matter jurisdiction under FSIA, an issue that is subject to interlocutory review. Sudan also asks us to exercise pendent appellate jurisdiction to review the district court's rulings on the issues of personal jurisdiction and venue. Sudan finally asks us to exercise pendent appellate jurisdiction over and decide the issue of standing, even though the district court has not yet ruled on it. We consider each of Sudan's arguments in turn.
We first address Sudan's argument that Plaintiffs failed to allege sufficient facts in the Amended Complaint to establish subject matter jurisdiction under FSIA.1 "The existence of subject matter jurisdiction under [FSIA] ... is a question of law" that we review de novo. Eckert Int'l, Inc. v. Gov't of the Sovereign Democratic Republic of Fiji, 32 F.3d 77, 79 (4th Cir.1994). For reasons that follow, we reject Sudan's argument.
FSIA provides that, subject to certain limited exceptions, "a foreign state shall be immune from the jurisdiction of the courts of the United States." § 1604. One exception to such immunity arises in claims against a foreign state for injuries resulting from certain acts of terrorism. See § 1605(a)(7).2 Under § 1605(a)(7), "victims of terrorism [can] sue countries that have been designated state sponsors of terrorism by the State Department ... for those countries' provision of `material support' for terrorist acts." Hegna v. Islamic Republic of Iran, 376 F.3d 226, 230 (4th Cir.2004) (citing § 1605(a)(7)). This so-called "terrorist exception" has the following jurisdictional requirements: (1) the provision of material support by a state sponsor of terrorism; (2) the provision of such support by an official of the state "while acting within the scope of his or her office, employment, or agency"; and (3) a causal link between the material support and damage resulting from an act of terrorism. See § 1605(a)(7).
A foreign state's challenge3 to subject matter jurisdiction in an action brought pursuant to the terrorist exception to FSIA may be based on either (1) the inadequacy of the pleadings as a matter of law; or (2) a denial of the allegations in the complaint. Phoenix Consulting, Inc., 216 F.3d at 40. In the first instance, the foreign state does not challenge the plaintiff's allegations of fact; in the second, the district court must resolve the factual dispute in ruling on the motion to dismiss. Id. Sudan's motion to dismiss here was based solely on the legal sufficiency of the pleadings. In other words, this appeal presents no contested issues of fact and we accept Plaintiffs' allegations as true for purposes of determining jurisdictional sufficiency. See Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C.Cir.2002); Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 440 n. 3 (D.C.Cir.1990).
The standard we apply in assessing Sudan's challenge "is similar to that of Rule 12(b)(6), under which dismissal is...
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