United States Court of Appeals, District of Columbia Circuit
October 11, 2016
Appeals from the United States District Court for the
District of Columbia No. 1:01-cv-02244, 1:08-cv-01377,
1:10-cv-00356, 1:12-cv-01224, 1:08-cv-01349, 1:08-cv-01361,
Christopher M. Curran, Nicole Erb, Claire A. DeLelle, and
Celia A. McLaughlin were on the supplemental brief for
appellants. Bruce E. Fein entered an appearance.
H. Newberger, Clifton E. Elgarten, Aryeh S. Portnoy, Emily
Alban, John L. Murino, Matthew D. McGill, Lochlan F. Shelfer,
Steven R. Perles, Edward B. MacAllister, John Vail, Thomas
Fortune Fay, Jane Carol Norman, Michael J. Miller, and David
J. Dickens were on the supplemental brief for appellees.
Annie P. Kaplan, John D. Aldock, and Stephen A. Saltzburg,
Henderson and Rogers, Circuit Judges, and Ginsburg, Senior
Ginsburg, Senior Circuit Judge.
court originally heard this appeal during the 2016-17 term.
See 864 F.3d 751 (2017). In the resulting order we
certified to the D.C. Court of Appeals the following question
regarding the plaintiffs' intentional infliction of
emotional distress (IIED) claims: "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?" The D.C.
Court of Appeals has now answered the question in the
negative. See Republic of Sudan v. Owens, 194 A.3d
38, 39 (2018). Sudan nonetheless asks us not to accept the
D.C. court's answer on the grounds that it encroaches
upon the federal government's foreign affairs power,
impermissibly discriminates against certain foreign
sovereigns, and violates the presumption against
retroactivity. For the reasons that follow, we reject
Sudan's arguments and affirm the default judgments with
respect to the plaintiffs' IIED claims.
underlying facts and the history of this litigation are
recited at length in our initial opinion. 864 F.3d at 762-69.
Here we briefly summarize and highlight matters relevant to
Sudan's present challenge.
cases in this consolidated appeal are among the many lawsuits
arising out of the August 1998 bombings of the U.S. embassies
in Nairobi, Kenya and Dar es Salaam, Tanzania, which were
committed by al Qaeda. Id. at 762. Beginning in
2001, victims of the bombings and their family members
brought suits against the Republic of Sudan and the Islamic
Republic of Iran for providing material support to al Qaeda.
Id. at 765-66. They were able to do so through the
so-called "terrorism exception" in the Foreign
Sovereign Immunities Act (FSIA), which covers suits against
state sponsors of terrorism for "personal injury or
death" arising out of certain acts. Id. at 762;
see 28 U.S.C. § 1605A(a).
original terrorism exception was codified as a subsection of
28 U.S.C. § 1605, alongside all the other exceptions to
the jurisdictional immunity of foreign states. 864 F.3d at
763. Under that scheme, a plaintiff suing a foreign sovereign
for acts of state-sponsored terrorism had to rely solely upon
state substantive law; this is known as the
"pass-through" approach. Id. at 764. In
2008 the Congress moved the terrorism exception from §
1605 to the newly enacted § 1605A. National Defense
Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181,
§ 1083, 122 Stat. 3, 338-44 (2008). Unlike the other
exceptions in the FSIA, the § 1605A terrorism exception
not only withdraws sovereign immunity and grants the federal
courts jurisdiction over qualifying cases, it also provides a
substantive cause of action against foreign sovereigns. 864
F.3d at 765; see § 1605A(c). In addition, as we
held in our earlier opinion, plaintiffs can continue to bring
pass-through state law claims through the jurisdictional
grant in § 1605A. 864 F.3d at 808; see §
Sudan failed to appear and defend against the claims, in May
2003 the district court entered an order of default. Over the
next decade, the litigation took many twists and turns,
producing a tangle of related actions and appeals.
See 864 F.3d at 765-68. Finally, in 2014, the
district court entered final judgments in favor of the
plaintiffs. The total damages awarded came to $10.2 billion,
$4.3 billion of which were punitive damages. Id. at
April 2015 Sudan filed Rule 60(b) motions to vacate the
default judgments; it also appealed each case, but we stayed
those appeals pending resolution of the motions to vacate.
Id. at 768. In those motions, Sudan raised both
jurisdictional and nonjurisdictional arguments, none of which
persuaded the district court. Sudan appealed the district
court's denials of its motions to vacate, and ...