Owens v. Republic of Sudan

          Argued 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, 1:08-cv-01380

          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.

          Stuart 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, entered appearances.

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

          OPINION

          Ginsburg, Senior Circuit Judge.

         The 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.

         I. Background

         The 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.

         A. Litigation History

         The 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).

         The 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 § 1605A(a).

         Because 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 767.

         In 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 ...