James Owens v. Republic of Sudan , 864 F.3d 751 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 11, 2016 Decided July 28, 2017
No. 14-5105
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
Consolidated with 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
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)
2
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 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, and Stephen A.
Saltzburg, entered appearances.
Before: HENDERSON and ROGERS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
3
Table of Contents
I. Background 5
A. The FSIA Terrorism Exception 6
B. History of this Litigation 11
II. Extrajudicial Killings 19
A. Textual Arguments 21
1. State action requirements under international law 21
2. International law and the TVPA 24
3. State action requirements in the TVPA and the FSIA
terrorism exception 27
B. Statutory Purpose 31
C. Statutory History 33
III. Sufficiency of the Evidence Supporting Jurisdiction 36
A. The Evidentiary Hearing 39
1. The sources of evidence presented 39
2. The district court’s findings of fact 42
B. Standard of Review 48
C. Admissibility of the Evidence 52
1. The expert testimony 53
2. The State Department reports 63
D. Sufficiency of the Evidence 66
1. Proximate causation 67
2. Sudan’s specific intent 76
IV. Timeliness of Certain Claims 78
V. Jurisdiction and Causes of Action for Claims of Third
Parties 88
4
A. Jurisdiction 89
B. Causes of Action 94
C. Intentional Infliction of Emotional Distress 98
VI. Punitive Damages 103
A. Whether to Review the Awards of Punitive Damages
104
B. Retroactivity of Punitive Damages Under § 1605A(c)
107
1. Section 1605A operates retroactively 108
2. Clear statement of retroactive effect 111
C. Retroactivity of Punitive Damages Under State Law
114
VII. Vacatur Under Rule 60(b) 115
A. Excusable Neglect Under Rule 60(b)(1) 116
B. Extraordinary Circumstances Under Rule 60(b)(6)
127
GINSBURG, Senior Circuit Judge: 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
5
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.
6
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 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 (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 (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
7
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 (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 (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)).
8
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 giving rise to the
suit, § 1605(a)(7)(A) (referencing 50 U.S.C. App. § 2405(j)
and 22 U.S.C. § 2371). The AEDPA also set a filing deadline
for suits brought under the new exception at ten years from the
date upon which a plaintiff’s claim arose. 28 U.S.C. § 1605(f).
Initially, there was some confusion about whether the new
exception created a cause of action against foreign sovereigns.
See In re Islamic Republic of Iran Terrorism Litig., 659 F.
Supp. 2d 31, 42-43 (D.D.C. 2009). Within five months of
enacting the AEDPA, the Congress clarified the situation with
an amendment, codified as a note to the FSIA, Pub. L. No. 104-
208, § 589, 110 Stat. 3009, 3009-172 (1996) (codified at 28
U.S.C. § 1605 note), which provides:
[A]n official, employee, or agent of a foreign
state designated as a state sponsor of terrorism
. . . while acting within the scope of his or her
office, employment, or agency shall be liable to
a United States national or the national’s legal
representative for personal injury or death
caused by acts of that official, employee, or
agent for which the courts of the United States
may maintain jurisdiction under section
1605(a)(7) of title 28, United States Code, for
money damages which may include economic
damages, solatium, pain, and suffering, and
punitive damages if the acts were among those
described in section 1605(a)(7).
9
This amendment was known as the Flatow Amendment
after Alisa Flatow, a Brandeis University student mortally
wounded in a suicide bombing in the Gaza Strip. The Flatow
Amendment, which the Congress intended to deter state
support for terrorism, (1) provided a cause of action against
officials, employees, or agents of a designated state sponsor of
terrorism and (2) authorized the award of punitive damages
against such a defendant. These two changes marked a
departure from the other FSIA exceptions, none of which
provided a cause of action or allowed for punitive damages. See
28 U.S.C. § 1606.
Although it referred in terms only to state officials, for a
time some district courts read the Flatow Amendment and
§ 1605(a)(7) to create a federal cause of action against foreign
states themselves. See, e.g., Kilburn v. Republic of Iran, 277 F.
Supp. 2d 24, 36-37 (D.D.C. 2003). But see Roeder v. Islamic
Republic of Iran, 195 F. Supp. 2d 140, 171 (D.D.C. 2002). In
Cicippio-Puleo v. Islamic Republic of Iran, we rejected this
approach, holding that “neither 28 U.S.C. § 1605(a)(7) nor the
Flatow Amendment, nor the two considered in tandem, creates
a private right of action against a foreign government.” 353
F.3d 1024, 1033 (D.C. Cir. 2004). We based this conclusion
upon the plain text of the Flatow Amendment – which applied
only to state officials – and upon the function of all the other
exceptions to the FSIA, which withdraw immunity but leave
the substantive law of liability unchanged. Id. at 1033-34(noting the “settled distinction in federal law between statutory
provisions that waive sovereign immunity and those that create
a cause of action”). Because there was no federal cause of
action, we remanded the case “to allow plaintiffs an
opportunity to amend their complaint to state a cause of action
under some other source of law, including state law.” Id. at
1036. Hence, a plaintiff proceeding under the terrorism
10
exception would follow the same pass-through process that
governed an action under the original FSIA exceptions.
The pass-through approach, however, produced
considerable difficulties. In cases with hundreds or even
thousands of claimants, courts faced a “cumbersome and
tedious” process of applying choice of law rules and
interpreting state law for each claim. See Iran Terrorism Litig.,
659 F. Supp. 2d at 48. Differences in substantive law among
the states caused recoveries to vary among otherwise similarly
situated claimants, denying some any recovery whatsoever. See
Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25, 44-
45 (D.D.C. 2007) (denying recovery for intentional infliction
of emotional distress to plaintiffs domiciled in Pennsylvania
and Louisiana while permitting recovery for plaintiffs from
other states).
The Congress addressed these problems in 2008. Section
1083 of the National Defense Authorization Act for Fiscal Year
2008 (NDAA) repealed § 1605(a)(7) and replaced it with a new
“Terrorism exception to the jurisdictional immunity of a
foreign state.” Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338-
44 (2008) (hereinafter NDAA) (codified at 28 U.S.C.
§ 1605A). The new exception withdrew immunity, granted
jurisdiction, and authorized suits against state sponsors of
terrorism for “personal injury or death” arising from the same
predicate acts – torture, extrajudicial killing, aircraft sabotage,
hostage taking, and the provision of material support – as had
the old exception. 28 U.S.C. § 1605A(a)(1). Jurisdiction for
suits under the new exception extended to “claimants or
victims” who were U.S. nationals, and for the first time, to
members of the armed forces and to government employees or
contractors acting within the scope of their employment. 28
U.S.C. § 1605A(a)(2)(A)(ii). Most important, the new
exception authorized a “[p]rivate right of action” against a state
11
over which a court could maintain jurisdiction under
§ 1605A(a). 28 U.S.C. § 1605A(c). By doing so, the Congress
effectively abrogated Cicippio-Puleo and provided a uniform
source of federal law through which plaintiffs could seek
recovery against a foreign sovereign. Iran Terrorism Litig., 659
F. Supp. 2d at 59. A claimant who was a U.S. national, military
service member, government employee or contractor acting
within the scope of his employment, and the claimant’s legal
representative could make use of this cause of action. As with
the Flatow Amendment but unlike § 1605(a)(7), the NDAA
authorized awards of punitive damages under the new federal
cause of action. The exception also provided claimants a host
of other new benefits not relevant here.
Like its predecessor, the new exception contained a ten-
year limitation period on claims brought under § 1605A.
Notwithstanding the limitation period, the NDAA provided
two means of bridging the gap between the now-repealed
§ 1605(a)(7) and the new § 1605A. Claimants with claims
“before the courts in any form” who had been adversely
affected by the lack of a federal cause of action in § 1605(a)(7)
could move to convert or refile their cases under § 1605A(c).
NDAA § 1083(c)(2). Furthermore, “[i]f an action arising out of
an act or incident has been timely commenced under section
1605(a)(7) or [the Flatow Amendment],” then a claimant could
bring a “related action” “arising out of the same act or incident”
within 60 days of the entry of judgment in the original action
or of the enactment of the NDAA, whichever was later. NDAA
§ 1083(c)(3). Each of these provisions is examined below in
greater detail as they relate to Sudan’s arguments.
B. History of this Litigation
This appeal follows 15 years of litigation against Sudan
arising from the 1998 embassy bombings. In October 2001
12
plaintiff James Owens filed the first lawsuit against Sudan and
Iran for his personal injuries. Other plaintiffs joined the Owens
action in the following year. These included individuals (or the
legal representatives of individuals) killed or injured in the
bombings, who sought recovery for their physical injuries (or
deaths), and the family members of those killed or injured, who
sued for their emotional distress. The Owens complaint alleged
that the embassy bombings were “extrajudicial killings” under
the FSIA and that Sudan provided material support for the
bombings by sheltering and protecting al Qaeda during the
1990s.
When Sudan failed to appear, the district court entered an
order of default in May 2003. The default was translated into
Arabic and sent to Sudan in accordance with 28 U.S.C.
§ 1608(e). In February 2004 Sudan secured counsel and in
March 2004 moved to vacate the default and to dismiss the
Owens action. Sudan argued, among other things, it remained
immune under the FSIA because the plaintiffs had not
adequately pleaded facts showing it had materially supported
al Qaeda or that its support had caused the bombings. Sudan
attached to its motion declarations from a former U.S.
Ambassador to Sudan and a former FBI agent stating that it
neither assisted al Qaeda nor knew of the group’s terrorist aims
during the relevant period.
In March 2005 the district court granted, in part, Sudan’s
motion to dismiss and vacated the order of default. Owens v.
Republic of Sudan, 374 F. Supp. 2d 1, 9-10 (D.D.C. 2005)
(Owens I). The court, however, allowed the plaintiffs to amend
their complaint in order to develop more fully their allegations
of material support. Id. at 15. The court further noted that
although “the Sudan defendants severed ties to al Qaeda two
years before the relevant attacks,” this timing did not
necessarily foreclose the conclusion that Sudan had “provided
13
material support within the meaning of the statute and that this
support was a proximate cause of the embassy bombings.” Id.
at 17.
The plaintiffs then amended their complaint, and Sudan
again moved to dismiss. Sudan once again argued the
complaint had not sufficiently alleged material support and that
any support it provided was not a legally sufficient cause of the
embassy bombings. Assuming the truth of the plaintiffs’
allegations, the district court denied Sudan’s motion in its
entirety. Owens v. Republic of Sudan, 412 F. Supp. 2d 99, 108,
115 (D.D.C. 2006) (Owens II).
While the motions to dismiss were pending, difficulties
arose between Sudan and its counsel. After filing the first
motion to dismiss, Sudan’s initial counsel withdrew due to a
conflict of interest with the Iranian codefendants. Sudan
retained new counsel, but their relationship soon deteriorated.
Starting in January 2005 new counsel filed several motions to
withdraw, citing Sudan’s unresponsiveness and failure to pay
for legal services. Sudan’s last communication with counsel
was in September 2008. The district court eventually granted a
final motion to withdraw in January 2009, leaving Sudan
without representation.
Despite these difficulties, counsel for Sudan continued to
defend their client until the court granted the motion to
withdraw in January 2009. Following the denial of its second
motion to dismiss, Sudan pursued an interlocutory appeal to
this court. Its appeal, in part, challenged the legal sufficiency
of the plaintiffs’ allegations that Sudan’s material support had
caused the embassy bombings. In July 2008 we affirmed the
district court’s decision, holding that “[a]ppellees’ factual
allegations and the reasonable inferences that can be drawn
therefrom show a reasonable enough connection between
14
Sudan’s interactions with al Qaeda in the early and mid-1990s
and the group’s attack on the embassies in 1998” to maintain
jurisdiction under the FSIA. Owens v. Republic of Sudan, 531
F.3d 884, 895 (D.C. Cir. 2008) (Owens III). We then remanded
the case to allow the plaintiffs to pursue the merits of their
claims.
Shortly after our decision, several new groups of plaintiffs
filed actions against Sudan and Iran arising from the embassy
bombings. These actions – brought by the Wamai, Amduso,
Mwila, and Osongo plaintiffs – were filed after the enactment
of the new terrorism exception and before the expiration of its
limitation period. This brought the total number of suits against
Sudan to six, including the original Owens action and a suit
filed by the Khaliq plaintiffs under § 1605(a)(7).
From that point on, neither Sudan nor its counsel
participated in the litigation again until after the 2014 entry of
final judgment in Owens. After entering new orders of defaults
against Sudan in several of the pending actions, the court held
a consolidated evidentiary hearing in order to satisfy a
requirement in the FSIA that “the claimant establish[] his claim
or right to relief by evidence satisfactory to the court.” 28
U.S.C. § 1608(e). Without considering this evidence, the court
could not transform the orders of default into enforceable
default judgments establishing liability and damages against
Sudan.
For three days, the district court heard expert testimony
and reviewed exhibits detailing the relationship between both
Iran and Sudan and al Qaeda during the 1990s. Shortly after
this hearing the district court held both defendants liable for
materially supporting the embassy bombings. Owens v.
Republic of Sudan, 826 F. Supp. 2d 128, 157 (D.D.C. 2011)
(Owens IV). More specifically, the district court found Sudan
15
had provided al Qaeda a safe harbor from which it could
establish and direct its terrorist cells in Kenya and Tanzania.
Id. at 139-43, 146. The court further found Sudan provided
financial, military, and intelligence assistance to the terrorist
group, which allowed al Qaeda to avoid disruption by hostile
governments while it developed its capabilities in the 1990s.
Id. at 143-46. These findings established both jurisdiction over
and substantive liability for claims against Sudan and Iran.
The court also addressed the claims of non-American
family members of those killed or injured in the bombings.
Although those plaintiffs could not make use of the federal
cause of action in § 1605A(c), the court concluded they could
pursue claims under state law, as was the practice under the
previous terrorism exception. Id. at 153. The court’s opinion
was translated into Arabic and served upon Sudan in
September 2012.
The district court then referred the cases to special masters
to hear evidence and recommend the amounts of damages to be
awarded. While this process was ongoing, two new sets of
plaintiffs entered the litigation. In July 2012 the Opati plaintiffs
filed suit against Sudan, claiming their suits were timely as a
“related action” with respect to the original Owens litigation.
In May 2012 the Aliganga plaintiffs sought to intervene in the
Owens suit. Notwithstanding the expiration of the ten-year
limitation period starting from the date of the bombings, the
district court allowed both groups of plaintiffs to proceed
against Sudan and to rely upon the court’s factual findings of
jurisdiction and liability. The court then referred the Aliganga
and Opati claims to the special masters.
In 2014 the district court entered final judgments in favor
of the various plaintiffs. All told, the damages awarded against
Sudan came to more than $10.2 billion. Family members, who
16
outnumbered those physically injured by the bombing,
received the bulk of the award – over $7.3 billion. Of the total
$10.2 billion, approximately $4.3 billion was punitive
damages. See, e.g., Opati v. Republic of Sudan, 60 F. Supp. 3d
68, 82 (D.D.C. 2014).
Within a month of the first judgments, Sudan retained
counsel and reappeared in the district court. Sudan appealed
each case and in April 2015 filed motions in the district court
to vacate the default judgments under Federal Rule of Civil
Procedure 60(b). We stayed the appeals pending the district
court’s ruling on the motions.
In those motions, Sudan raised a number of arguments for
vacatur, most of them challenging the district court’s subject
matter jurisdiction. As before, Sudan also attacked the
plaintiffs’ evidence. It argued the judgments were void because
they rested solely upon inadmissible evidence to prove
jurisdictional facts, which Sudan argued was impermissible
under § 1608(e). It also argued the evidence did not show it
proximately caused the bombings because al Qaeda did not
become a serious terrorist threat until after Sudan had expelled
bin Laden in 1996.
Sudan raised a host of new arguments as well. In its most
sweeping challenge, Sudan argued it did not provide material
support for any predicate act that would deprive it of immunity
under the FSIA. In making this argument, Sudan contended the
embassy bombings, carried out by al Qaeda, were not
“extrajudicial killings” because that term requires the
involvement of a state actor in the act of killing. Sudan also
contended the claims brought by the Opati, Aliganga, and
Khaliq plaintiffs were barred by the statute of limitation in
17
§ 1605A(b) which, it argued, deprived the court of jurisdiction
to hear their suits. 1
Sudan’s last jurisdictional challenge took aim at the family
members of those physically injured or killed by the bombings.
Sudan argued that the court could hear claims only from a
person who was physically harmed or killed by the bombings
or the legal representative of that person. And even if
jurisdiction was proper, Sudan contended, foreign (i.e., non-
U.S.) family members could not state a claim under either the
federal cause of action or state law.
Finally, Sudan raised two nonjurisdictional arguments:
First, it urged the district court to vacate its awards of punitive
damages to the plaintiffs proceeding under state law,
contending § 1605A(c) is the sole means for obtaining punitive
damages against a foreign state. Second, Sudan argued the
court should vacate the default judgments under Federal Rule
of Civil Procedure 60(b) for “extraordinary circumstances” or
“excusable neglect” on Sudan’s part. In support of the latter
argument, Sudan submitted a declaration from the Sudanese
Ambassador to the United States detailing the country’s
troubled history of civil unrest, natural disaster, and disease,
which allegedly impeded Sudan’s participation in the
litigation.
After a consolidated hearing, the district court denied the
motions to vacate in all respects. Owens v. Republic of Sudan,
174 F. Supp. 3d 242 (D.D.C. 2016) (Owens V). Sudan appealed
and its appeal was consolidated with its earlier appeals from
the final judgments. Sudan’s briefs before this court are
directed primarily to the district court’s jurisdiction, and
1
As we discuss infra, the Khaliq plaintiffs later asserted claims under
§ 1605A.
18
present novel questions of law, which we review de novo. See
Jerez v. Republic of Cuba, 775 F.3d 419, 422 (D.C. Cir. 2014).
Ordinarily, all of Sudan’s nonjurisdictional arguments would
be forfeited by reason of its having defaulted in the district
court. See Practical Concepts, Inc. v. Republic of Bolivia, 811
F.2d 1543, 1547 (D.C. Cir. 1987). In this case, however, due to
the size of the judgments against Sudan, their possible effects
upon international relations, and the likelihood that the same
arguments will arise in future litigation, we exercise our
discretion to consider some, but not all, of Sudan’s
nonjurisdictional objections. See Acree v. Republic of Iraq, 370
F.3d 41, 58 (D.C. Cir. 2004) (“while we will ordinarily refrain
from reaching non-jurisdictional questions that have not been
raised by the parties . . . we may do so on our own motion in
‘exceptional circumstances’”).
At the end of the day, we affirm the judgments in most
respects, holding the FSIA grants jurisdiction over all the
claims and claimants present here. We hold also that those
plaintiffs ineligible to proceed under the federal cause of action
may continue to press their claims under state law. We also
vacate all the awards of punitive damages and certify a question
of local tort law to the District of Columbia Court of Appeals.
We turn first to Sudan’s challenges to the district court’s
subject matter jurisdiction, starting with those that would
dispose of the entire case. In Part II we address Sudan’s
challenge to the meaning of “extrajudicial killings” under the
FSIA. In Part III we review the sufficiency of the evidence
supporting the conclusions that Sudan provided material
support to al Qaeda and that this support was a jurisdictionally
sufficient cause of the embassy bombings.
We then proceed to Sudan’s jurisdictional challenges that
would eliminate the claims of particular plaintiffs. In Part IV
19
we consider whether some of the plaintiffs’ claims are barred
by the statute of limitation in the FSIA terrorism exception,
which Sudan contends is jurisdictional. In Part V we address
both jurisdictional and nonjurisdictional arguments opposing
the claims of the family members of victims physically injured
or killed by the embassy bombings. Finally, we address
Sudan’s purely nonjurisdictional arguments in Part VI –
whether the new terrorism exception authorizes punitive
damages for a sovereign’s pre-enactment conduct – and
Part VII – addressing Sudan’s arguments for vacatur under
Rule 60(b)(1) and 60(b)(6).
II. Extrajudicial Killings
Sudan first argues the 1998 embassy bombings were not
“extrajudicial killings” within the meaning of the FSIA
terrorism exception. As noted above, § 1605A divests a foreign
state of immunity and grants courts jurisdiction over cases
in which money damages are sought against a
foreign state for personal injury or death that
was caused by . . . extrajudicial killing . . . or
the provision of material support or resources
for such an act if such act or provision of
material support or resources 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.
Because this argument poses a challenge to the court’s
subject matter jurisdiction, it was not forfeited by Sudan’s
failure to appear in the district court. See Practical Concepts,
811 F.2d at 1547. This is Sudan’s most sweeping challenge,
and, if correct, then the claims of all the plaintiffs must fail. The
district court rejected Sudan’s jurisdictional argument based
20
upon the plain meaning of “extrajudicial killing.” Owens V,
174 F. Supp. 3d at 259-66. Reviewing de novo this question of
law relating to our jurisdiction, we agree that “extrajudicial
killings” include the terrorist bombings that gave rise to these
cases.
Section 1605A(h)(7) of the FSIA provides that the term
“extrajudicial killing” has the meaning given to it in § 3(a) of
the Torture Victim Protection Act of 1991, which defines an
extrajudicial killing as:
a deliberated killing not authorized by a
previous judgment pronounced by a regularly
constituted court affording all the judicial
guarantees which are recognized as
indispensable by civilized peoples. Such term,
however, does not include any such killing that,
under international law, is lawfully carried out
under the authority of a foreign nation.
Pub. L. No. 102-256, § 3(a), 106 Stat. 73, 73 (1991) (codified
at 28 U.S.C. § 1350 note) (hereinafter TVPA).
On its face, this definition contains three elements: (1) a
killing; (2) that is deliberated; and (3) is not authorized by a
previous judgment pronounced by a regularly constituted
court. The 1998 embassy bombings meet all three requirements
and do not fall within the exception for killings carried out
under the authority of a foreign nation acting in accord with
international law. First, the bombings caused the death of more
than 200 people in Kenya and Tanzania. The bombings were
“deliberated” in that they involved substantial preparation,
meticulous timing, and coordination across multiple countries
in the region. See Mamani v. Berzain, 654 F.3d 1148, 1155
(11th Cir. 2011) (defining “deliberated” under the TVPA as
21
“being undertaken with studied consideration and purpose”).
Finally, the bombings themselves were neither authorized by
any court nor by the law of nations. Therefore, on its face, the
FSIA would appear to cover the bombings as extrajudicial
killings.
Sudan offers a host of reasons we should ignore the plain
meaning of “extrajudicial killing” in the TVPA and exclude
terrorist bombings like the 1998 embassy attacks from
jurisdiction under the FSIA terrorism exception. Sudan’s
arguments draw upon the text and structure, the purpose, and
the legislative history of the TVPA and of the FSIA terrorism
exception. Each of Sudan’s arguments shares the same basic
premise: Only a state actor, not a nonstate terrorist, may
commit an “extrajudicial killing.”
A. Textual Arguments
We begin, as we must, with the text of the statute. First,
Sudan contends the text of the TVPA, and, by extension of the
FSIA, defines an “extrajudicial killing” in terms of
international law, specifically the Geneva Conventions.
According to Sudan, international law generally and the
Geneva Conventions specifically prohibit only killings carried
out by a state actor. The plaintiffs vigorously contest both
propositions.
1. State action requirements under international law
Sudan bases its argument that principles of international
law supply the meaning of “extrajudicial killing” in the FSIA
upon similarities between the TVPA and the prohibition on
“summary executions” in Common Article 3 of the Geneva
Conventions of 1949, which condemns “the passing of
sentences and the carrying out of executions without previous
22
judgment pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.” Geneva Convention for
the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, art. 3(1)(d), Aug. 12, 1949, 6 U.S.T.
3114, 75 U.S.T.S. 85. The similarities between the two
definitions, Sudan contends, shows the Congress intended to
define an “extrajudicial killing” in the TVPA with reference to
principles of international law adopted in the Geneva
Conventions.
To Sudan, this is of critical importance because the
Geneva Conventions and international law, it argues, proscribe
killings only when committed by a state agent, not when
perpetrated by a nonstate actor. Three pieces of evidence are
said to demonstrate this limitation. First, Sudan notes, the
United Nations adopted a resolution in 1980 condemning as
inconsistent with international law “[e]xtra-legal executions”
carried out by “armed forces, law enforcement or other
governmental agencies.” Congress on the Prevention of Crime
and the Treatment of Offenders Res., A/Conf.87/L.11 (Sep. 5,
1980). Second, Sudan cites a United Nations annual report, S.
Amos Wako (Special Rapporteur on Extrajudicial, Summary
or Arbitrary Executions), Summary or Arbitrary Executions,
¶¶ 74-85, U.N. Doc. E/CN.4/1983/16 (Jan. 31, 1983), which
describes “extralegal executions” and “summary executions”
in terms suggesting state involvement. And third, Sudan
references an online database of the United Nations, which
links the term “extrajudicial killing” to the definition of “extra-
legal execution.” U.N. Terminology Database,
http://untermportal.un.org/UNTERM/display/Record/UNHQ/
extra-legal_execution/c253667 (last visited July 19, 2017).
Each of these references to international law is both
inapposite and rebutted by the plaintiffs. If Sudan means to say
23
the TVPA incorporates the prohibition against a “summary
execution” in the Geneva Conventions, then it must show what
was meant by that term in the Geneva Conventions themselves.
In doing so, however, Sudan principally relies upon U.N.
documents published more than a quarter century after the
ratification of the Geneva Conventions in 1949, rather than the
deliberations over the proposed Conventions, which Sudan
does not cite at all. Odder still, none of these documents (or the
terminology database) actually says the Geneva Conventions
proscribe only “summary executions” committed by a state
actor. See Summary or Arbitrary Executions, supra p. 22,
¶¶ 35-36 (noting Article 3 of the Geneva Conventions prohibits
“murder” in general and “also specifically prohibits the passing
of sentences and the carrying out of executions without
previous judgement pronounced by a regularly constituted
court”). Indeed, the plaintiffs present reasons to doubt whether
the Geneva Conventions in specific, or international law in
general, prohibit only killings by a state actor. As the plaintiffs
note, Article 3 of the First Convention prohibits “violence to
life and person, in particular murder of all kinds.” Geneva
Convention, art. 3(1)(a), Aug. 12, 1949, 6 U.S.T. 3114, 75
U.S.T.S. 85. Likewise, the U.N. Terminology Database lists
“[k]illings committed by vigilante groups” as an example of an
“extrajudicial killing.” And finally, a “Handbook” published
by the U.N. Special Rapporteur on Summary or Arbitrary
Executions contains a full chapter on “killings by non-state
actors and affirmative state obligations,” which states that
“Human rights and humanitarian law clearly apply to killings
by non-State actors in certain circumstances.” Project on
Extrajudicial Executions, UN Special Rapporteur on
Extrajudicial Executions Handbook, ¶ 45,
http://www.extrajudicialexecutions.org/application/media/Ha
ndbook%20Chapter%203-Responsibility%20of%20states%20
for%20non-state%20killings.pdf (last visited July 19, 2017).
24
This does not mean Sudan’s interpretation of international
law as it pertains to summary executions (as opposed to
extrajudicial killings) is wrong or that direct state involvement
is not needed for certain violations of international law. Rather,
the point is that the role of the state in an extrajudicial killing
appears less clear under international law than Sudan would
have us believe; indeed it appears less clear than the definition
of an “extrajudicial killing” in the TVPA itself. Accordingly,
we doubt the Congress intended categorically to preclude state
liability for killings by nonstate actors by adopting a definition
of “extrajudicial killing” similar to that of a “summary
execution” in the Geneva Conventions.
2. International law and the TVPA
More important, even if Sudan’s interpretation of the
Geneva Conventions and international law is correct, its
argument would fail because the TVPA does not appear to
define an “extrajudicial killing” coextensive with the meaning
of a “summary execution” (or any similar prohibition) under
international law. For example, the TVPA does not adopt the
phrasing of the Geneva Conventions wholesale. Rather, as the
plaintiffs point out, the TVPA substitutes the term “deliberated
killing” for “the passing of sentences and the carrying out of
executions” in the Geneva Conventions. While “the passing of
sentences and the carrying out of executions” strongly suggests
at least some level of state involvement, a nonstate party may
commit a “deliberated killing” as readily as a state actor.
Indeed, several other statutes contemplate “deliberate” attacks
by nonstate entities, including terrorist groups. See, e.g., 6
U.S.C. § 1169(a) (requiring the Secretary of Transportation to
assess vulnerability of hazardous materials in transit to a
“deliberate terrorist attack”); 42 U.S.C. § 16276 (mandating
research on technologies for increasing “the security of nuclear
facilities from deliberate attacks”). Due to the substitution of
25
“deliberated” killings for “the passing of sentences and the
carrying out of executions,” the inference of direct state
involvement is much less strong in the TVPA than in the
Geneva Conventions. The difference between the definition in
the TVPA and the prohibition in the Geneva Conventions also
signals the Congress intended the TVPA to reach a broader
range of conduct than just “summary executions.” For the court
to rely upon the narrower prohibition in the Geneva
Conventions would contravene the plain text of the TVPA,
which is, after all, the sole “authoritative statement” of the law.
See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
568 (2005).
Resisting this conclusion, Sudan points to two phrases
that, it contends, impose a state actor requirement upon the
definition of an extrajudicial killing in the TVPA. First, Sudan
notes that an extrajudicial killing must not be one “authorized
by a previous judgment pronounced by a regularly constituted
court.” As Sudan would have it, the “only killings that can be
reasonably be imagined to be authorized by a ‘previous
judgment’ are those by state actors.” Regardless whether Sudan
is right on this point, the argument does not imply what Sudan
intends. If only a state actor may lawfully kill based upon a
“previous judgment,” then all killings committed by a nonstate
actor are, by definition, not “authorized by a previous
judgment.” Therefore, only a killing committed by a state actor
might not be an “extrajudicial killing,” that is, if it was
“authorized by a previous judgment pronounced by a regularly
constituted court.” Accepting Sudan’s premise, no other
outcome can “reasonably be imagined.”
Similarly, Sudan argues the second sentence in the
definition of an “extrajudicial killing” in the TVPA anchors the
meaning of the first sentence in international law which, in
Sudan’s view, prohibits only summary executions by state
26
actors. Even accepting Sudan’s view of international law, we
are not persuaded. In the first sentence of § 3(a), the Congress
defined the proscribed conduct (i.e., a “deliberated killing”) in
terms that extended beyond the prohibition on a “summary
execution” under international law. The second sentence
excludes from the definition of “extrajudicial killing” “any . . .
killing that, under international law, is lawfully carried out
under the authority of a foreign nation.” This ensured that the
more expansive prohibition of the first sentence would not
reach the traditional prerogatives of a sovereign nation. Were
“extrajudicial killings” no broader than “summary executions,”
the limitation in international law of what constitutes an
“extrajudicial killing” would be unnecessary because, by
Sudan’s own argument, a “summary execution” always
violates international law. Therefore, Sudan’s interpretation
would make superfluous the reference to killings “lawfully
carried out” “under international law,” contrary to the “cardinal
principle of statutory construction that we must give effect, if
possible, to every clause and word of a statute.” See Williams
v. Taylor, 529 U.S. 362, 404 (2000) (internal quotation marks
and citation omitted).
Moreover, the reference to international law in the second
sentence of § 3(a) of the TVPA highlights its omission in the
first sentence. Had the Congress intended the definition of an
“extrajudicial killing” to track precisely with that of a
“summary execution” under international law, § 3(a) could
have expressly referenced international law in both the
prohibition and its limitation. That approach is found elsewhere
in the FSIA, see 28 U.S.C. § 1605(a)(3) (authorizing
jurisdiction where “rights in property [are] taken in violation of
international law”), as well as in other statutes, see 18 U.S.C.
§ 1651 (proscribing “the crime of piracy as defined by the law
of nations”). Indeed, the Congress specifically defined other
predicate acts in § 1605A by reference to international treaties,
27
see 28 U.S.C. § 1605A(h)(1),(2) (defining “aircraft sabotage”
and “hostage taking” with reference to international treaties),
but referenced only a U.S. statute, the TVPA, in its definition
of “extrajudicial killing.” That the Congress incorporated
international law expressly into other jurisdictional provisions
undermines the inference that it intended implicitly to do so
here. See Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913,
919 (2015) (“Congress generally acts intentionally when it uses
particular language in one section of a statute but omits it in
another”).
3. State action requirements in the TVPA and the
FSIA terrorism exception
The plaintiffs provide another persuasive reason Sudan’s
textual arguments are flawed. The TVPA authorizes an action
only for harms arising from the conduct of a state actor. See
TVPA § 2(a) (providing a cause of action against an
“individual who, under actual or apparent authority, or color of
law, of any foreign nation” engages in torture or extrajudicial
killing). Sudan argues the state actor requirement for a suit
under the TVPA is “necessarily incorporated” in § 3(a) and
therefore applies to those actions arising from “extrajudicial
killings” under the FSIA. The limitation of actions to state
actors, however, is found not in § 3(a) but in § 2(a) of the
TVPA. As the plaintiffs note, when passing the current and
prior FSIA terrorism exceptions, the Congress each time
incorporated the section of the TVPA that defined an
“extrajudicial killing” but not the section that limited the cause
of action under the TVPA to state actors. If the Congress had
wanted to limit extrajudicial killings to state actors, then it
could have incorporated both sections of the TVPA into the
FSIA terrorism exception. That it did not compels us to
conclude the state actor limitation in the TVPA does not
transfer to the definition of an “extrajudicial killing” in the
28
FSIA. Cf. Sebelius v. Cloer, 133 S. Ct. 1886, 1894 (2013)
(declining to apply limitations from one section of a statue
when the text of another section does not cross-reference the
first section).
Indeed, the reason the Congress declined to incorporate the
state-actor limitation in the TVPA is plain on the face of the
FSIA terrorism exception. As the plaintiffs observe, the TVPA
and the FSIA share a similar structure. Each statute defines the
predicate acts that give rise to liability in one section – TVPA
§ 3 and FSIA § 1605A(h) – and then limits who may be
subjected to liability in another – TVPA § 2 and FSIA
§§ 1605A(a)(1) and (c). Both statutes also require a plaintiff to
show a certain type of nexus to a foreign sovereign. In the
TVPA, a state official must act “under actual or apparent
authority, or color of law” of a foreign sovereign. In the FSIA,
liability arises when the state official, employee, or agent
acting within the scope of his authority either directly commits
a predicate act or provides “material support or resources” for
another to commit that act. If the more stringent state-actor
limitation in the TVPA traveled with the definition of an
“extrajudicial killing” in that statute, then it would all but
eliminate the “material support” provision of § 1605A(a), at
least with respect to extrajudicial killings. For example,
§ 1605A(a) would extend jurisdiction over a sovereign that did
not directly commit an extrajudicial killing only if an official
of the defendant state materially supported a killing committed
by a state actor from a different state. We seriously doubt the
Congress intended the exception to immunity for materially
supporting an extrajudicial killing to be so narrow.
Sudan attempts to avoid the conclusion that the FSIA does
not adopt the state-actor limitation in the TVPA in two ways.
First, Sudan contends the introductory clause of § 3(a)
implicitly incorporates the state actor limitation of § 2(a). This
29
clause states that an “extrajudicial killing” is defined “[f]or the
purposes of this Act.” That supposedly indicates the Congress
intended to import the state actor limitation of § 2(a) into the
definition of an extrajudicial killing in § 3(a). But Sudan’s
reading of this phrase leads to an illogical conclusion. A
statutory definition made expressly “[f]or the purposes of this
Act” informs our understanding of the entire statute. In other
words, the definitions in TVPA § 3 govern the use of those
defined terms elsewhere in the Act. Under Sudan’s
interpretation, however, the reverse would occur: in order to
understand the meaning of a defined term, we would have to
look to the remainder of the statute, and not to the definition
itself. What then, we wonder, would the definition contribute
to the statute? Would it be wholly redundant, a conclusion that
conflicts with our usual interpretive presumptions? See Nat’l
Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 669
(2007). Or, if not redundant, how would a court then apply the
definition to terms used in the remainder of the statute if the
remainder of the statute, in turn, gave meaning to the
definition? Given these paradoxes, the phrase “[f]or the
purposes of this Act” cannot mean what Sudan contends.
Instead, that phrase simply means that the definition of an
“extrajudicial killing” in TVPA § 3(a) informs the remainder
of the TVPA (and, by extension, the FSIA), and not the reverse.
Second, Sudan contends the definition of an “extrajudicial
killing” in the TVPA implicitly incorporates international law
(and the supposed state-actor limitation therein) even without
reference to the state-actor limitation in § 2(a). Here Sudan
relies principally upon a dictum in a Second Circuit opinion
discussing the TVPA in a case arising under the Alien Tort
Claims Act (ATCA), which expressly incorporates
international law: “torture and summary execution – when not
perpetrated in the course of genocide or war crimes – are
proscribed by international law only when committed by state
30
officials or under color of law.” Kadić v. Karadžić, 70 F.3d
232, 243 (1995). The court further noted that “official torture
is prohibited by universally accepted norms of international
law, and the Torture Victim Act confirms this holding and
extends it to cover summary execution.” Id. at 244 (citation
omitted). This, Sudan contends, shows the TVPA definition of
an “extrajudicial killing” (and not just the TVPA in general)
draws upon international law. The court’s discussion in that
case, however, relied not only upon the definition of an
“extrajudicial killing” in TVPA § 3(a) but also upon the
limitation of the cause of action to state actors in TVPA § 2(a).
Id. at 243. Indeed, the court later separately summarized the
two provisions of the TVPA, distinguishing § 2(a), which
“provides a cause of action” against an individual acting under
state authority, from § 3, which “defines the terms
‘extrajudicial killing’ and ‘torture.’” Id. at 245.
Sudan’s argument that the definitions in the TVPA
incorporate international law is flawed as a matter of statutory
interpretation. If the definition of an “extrajudicial killing” (and
“torture”) in TVPA § 3(a) already had a state actor limitation
from international law, then the additional state actor limitation
in § 2(a) would be surplusage. See Gustafson v. Alloyd Co., 513
U.S. 561, 574 (1995) (instructing courts in interpreting a statute
to “avoid a reading which renders some words altogether
redundant”). That the Congress included § 2(a) in the TVPA
therefore implies either that the definition of extrajudicial
killing in § 3(a) of the FSIA does not incorporate international
law or that international law contains no state actor limitation.
Either way, Sudan is out of luck.
In sum, Sudan’s textual arguments that an extrajudicial
killing requires a state actor all fail. Even if international law
contained such a limitation – a proposition we doubt but do not
decide – the TVPA does not incorporate international law (or
31
any limitations therein) into its definition of an “extrajudicial
killing.” Because the FSIA terrorism exception references only
the definitions in TVPA § 3, and not the limitation to state
actors in TVPA § 2(a), nothing in the text of the FSIA makes a
state actor a prerequisite to an extrajudicial killing.
B. Statutory Purpose
Without a viable textual basis for its position, Sudan
argues the purpose of the TVPA and the FSIA extend only to
an “extrajudicial killing” committed by a state actor. Even if
we could ignore the statutory text in pursuit of its supposed
purpose, Sudan’s arguments from the purpose of the statutes
would still not be convincing.
With respect to the purpose of the TVPA, Sudan pursues a
line of reasoning parallel to that of its textual arguments:
Because the TVPA was intended to “carry out obligations of
the United States under the United Nations Charter and other
international agreements . . . by establishing a civil action for
recovery of damages from an individual who engages in torture
or extrajudicial killing,” Pub. L. No. 102-256, 106 Stat. at 73
(preamble), Sudan contends the supposed state-actor
requirement for a killing to violate international law also limits
the definition of an “extrajudicial killing” in the TVPA and
hence the jurisdictional requirements of the FSIA. Even if
international law both motivated enactment of the TVPA and
limits extrajudicial killing to a killing by state actor, Sudan’s
argument about the purpose of the TVPA still would fail. The
TVPA may well be intended to carry out certain international
obligations, but this purpose is reflected in the TVPA as a
whole, not in each individual provision viewed in isolation.
One would struggle to find a distinct purpose in the definition
section of the TVPA, which neither creates rights nor imposes
duties, divorced from the broader statute. When one statute,
32
such as the FSIA, incorporates a definition from another
statute, here the TVPA, it imports only the specified definition
and not the broader purpose of the statute from which it comes.
In any event, the different purposes of the TVPA and the
FSIA are plain on the face of those statutes. The TVPA targets
individual state officials for their personal misconduct in
office, while the terrorism exception to the FSIA targets
sovereign nations in an effort to deter them from engaging,
either directly or indirectly, in terrorist acts.
Sudan’s own arguments tacitly admit the FSIA serves a
different purpose than the TVPA, but it again frames this
purpose in terms of international law. To Sudan, the FSIA
serves to withdraw sovereign immunity only for “certain
universally defined and condemned acts” that are “firmly
grounded in international law.” Once again Sudan contends,
this excludes killings committed by nonstate terrorists because
international law proscribes killings only when committed by
a state actor. Furthermore, § 1605A, Sudan contends, should be
read to exclude acts of terrorism because terrorism lacks
“universal condemnation, or even [an] accepted definition . . .
under international law.” Other predicate acts included in
§ 1605A, particularly aircraft sabotage and hostage taking, are
inconsistent with this reading of the FSIA. As the plaintiffs and
the district court recognized, “[f]or the past fifteen years it has
been hard to think of a more quintessential act of terrorism than
the purposeful destruction of a passenger aircraft in flight – yet
such an act is manifestly covered by § 1605A.” Owens V, 174
F. Supp. 3d at 264. Indeed, both aircraft sabotage and hostage
taking are more often committed by a nonstate terrorist than by
a state actor, and both often result in extrajudicial killings.
Moreover, the definitions of these acts in the FSIA clearly do
not require state action. 28 U.S.C. §§ 1605A(h)(1) (referencing
the Convention for the Suppression of Unlawful Acts Against
33
the Safety of Civil Aviation, art. 1, Sept. 23, 1971, 24 U.S.T.
564, 974 U.N.T.S. 177 (proscribing aircraft sabotage
committed by “[a]ny person”)); 1605A(h)(2) (referencing the
International Convention Against the Taking of Hostages, art.
1, Dec. 17, 1979, 1316 U.N.T.S. 205 (proscribing hostage
taking by “[a]ny person”)). It would be more than odd if a
provision designed to sanction acts “firmly grounded in
international law” – but not international terrorism – included
only acts synonymous with international terrorism while
excluding other violations of international law, such as
genocide, not closely associated with terrorist groups. Against
this backdrop, it also strains belief that the Congress would
assert jurisdiction over claims against a state that materially
supports nonstate terrorists who kill via aircraft sabotage or
hostage taking, yet deny jurisdiction for similarly supported
killings caused by a truck bombing or a kidnapping. It is far
more likely the Congress intended to penalize a state’s
provision of material support for terrorist killings in general,
rather than to codify broad principles of international law or to
regulate the specific way state-supported terrorists go about
their horrific deeds. Were the law otherwise, designated state
sponsors of terrorism could effectively contract out certain
terrorist acts and avoid liability under the FSIA.
As the district court correctly recognized, § 1605A strives
to hold designated state sponsors of terrorism accountable for
their sponsorship of terror, regardless whether they commit
atrocities themselves or aid others in doing so. Owens V, 174
F. Supp. 3d at 262. Therefore, the purpose of the statute clearly
embraces liability for the embassy bombings here in question.
C. Statutory History
Sudan next resorts to the legislative history of the FSIA
and the TVPA to explain why an “extrajudicial killing”
34
requires state involvement. The short answer to its long and
winding argument through the characteristically inconclusive
background materials is that when the meaning of a statute is
clear enough on its face, “reliance on legislative history is
unnecessary.” See Mohamad v. Palestinian Auth., 132 S. Ct.
1702, 1709 (2012) (citation omitted).
Subsequent legislation, on the other hand, because it is
enacted and not just compiled, may inform our understanding
of a prior enactment with which it should be read in harmony.
In this instance, the Congress made clear that an extrajudicial
killing includes a terrorist bombing when, in 1996, it enacted
the Flatow Amendment to the FSIA to provide a federal cause
of action against state officials who had committed or
materially supported one of the predicate acts listed in
§ 1605(a)(7), including an extrajudicial killing. See Pub. L. No.
104-208, § 589, 110 Stat. at 3009-172. The Flatow Amendment
responded to a suicide bombing in Israel, carried out by a
nonstate terrorist group supported by Iran; it aimed to deter
terrorism by making officials of states that sponsor terrorism
liable for punitive damages. We do not believe the Congress
would provide a cause of action aimed at killings over which it
had not authorized jurisdiction.
Subsequent events in the Flatow saga reinforce this
conclusion. Immediately following passage, relatives of the
victim sued Iran under the Amendment, and the district court
asserted jurisdiction based upon this “extrajudicial killing.”
Flatow, 999 F. Supp. at 18. The plaintiffs won a default
judgment but could not collect due to Iran’s lack of attachable
assets. In 2000 the Congress again responded, passing a
compensation scheme to pay individuals who “held a final
judgment for a claim or claims brought under section
1605(a)(7) of title 28,” including the Flatows. See Victims of
Trafficking and Violence Protection Act of 2000, Pub. L. No.
35
106-386, § 2002(a)(2)(A), 114 Stat. 1464, 1541-43
(authorizing payment to claimants with judgments against Iran,
which included the Flatows); H.R. REP. NO. 106-939, at 116
(2000). This legislation too would make little sense if the
judgments themselves were void because no extrajudicial
killing had occurred.
Finally, after courts had applied the FSIA terrorism
exception to terrorist bombings for over a decade, 2 the
Congress reenacted the same predicate acts in § 1605(a)(7)
when authorizing the new FSIA exception under § 1605A. The
Congress thereby ratified the Flatow court’s understanding –
and those of every other court since then – that a nonstate actor
may commit an extrajudicial killing. See Lorillard v. Pons, 434
U.S. 575, 580 (1978) (“Congress is presumed to be aware of an
administrative or judicial interpretation of a statute and to adopt
2
See, e.g., Salazar v. Islamic Republic of Iran, 370 F. Supp.
2d 105, 113 (D.D.C. 2005) (applying the terrorism exception
to the U.S. embassy bombing in Beirut); Peterson v. Islamic
Republic of Iran, 264 F. Supp. 2d 46, 61 (D.D.C. 2003) (U.S.
Marine barracks in Beirut), approved of by 627 F.3d 1117,
1122-23 (9th Cir. 2010); Wagner v. Islamic Republic of Iran,
172 F. Supp. 2d 128, 133 (D.D.C. 2001) (U.S. embassy annex
in East Beirut); Ben-Rafael v. Islamic Republic of Iran, 540 F.
Supp. 2d 39, 53 (D.D.C. 2008) (Israeli embassy in Buenos
Aires); Blais v. Islamic Republic of Iran, 459 F. Supp. 2d 40,
53 (D.D.C. 2006) (Khobar Towers military residence in Saudi
Arabia); Rux v. Republic of Sudan, No. 2:04-cv-428, 2005
WL 2086202, at *13 (E.D. Va. Aug. 26, 2005) (USS Cole),
aff’d in relevant part, 461 F.3d 461 (4th Cir. 2006); see also
Owens II, 412 F. Supp. 2d at 106 n.11 (“[T]he Sudan
defendants do not dispute that the embassy bombings
constitute an act of extrajudicial killing”), aff'd, 531 F.3d 884.
36
that interpretation when it re-enacts a statute without change”).
Now, after more than two decades of consistent judicial
application of the FSIA, narrowing the term “extrajudicial
killing” to include only killings committed by a state actor
would contravene the Congress’s revealed intent in repeatedly
authorizing judicial remedies for victims of terrorist bombings.
To summarize, the plain meaning of § 1605A(a) grants the
courts jurisdiction over claims against designated state
sponsors of terrorism that materially support extrajudicial
killings committed by nonstate actors. Contrary to Sudan’s
contention, the purpose and statutory history of the FSIA
terrorism exception confirm this conclusion. Therefore, this
court may assert jurisdiction over claims arising from al
Qaeda’s bombing of the U.S. embassies in 1998 if the plaintiffs
have adequately demonstrated Sudan’s material support for
those bombings.
III. Sufficiency of the Evidence Supporting Jurisdiction
Sudan’s weightiest challenge to jurisdiction relates to the
admissibility and sufficiency of the evidence that supported the
district court’s finding of jurisdiction. As discussed above,
§ 1605A(a)(1) of the FSIA grants jurisdiction and withdraws
immunity for claims “caused by an act of . . . extrajudicial
killing . . . or the provision of material support or resources for
such an act.”
In order to establish the court’s jurisdiction, the plaintiffs
in this case must show (1) Sudan provided material support to
al Qaeda and (2) its material support was a legally sufficient
cause of the embassy bombings. See Kilburn v. Socialist
People’s Libyan Arab Jamahiriya, 376 F.3d 1123, 1127 (D.C.
Cir. 2004) (treating causation as a jurisdictional requirement).
Sudan challenges the district court’s factual findings on both
37
accounts. Because the elements of material support and
causation are jurisdictional, Sudan may contest them on appeal
even though it forfeited its right to contest the merits of the
plaintiffs’ claims. See Practical Concepts, 811 F.2d at 1547.
This does not mean, however, that the plaintiffs on appeal must
offer the same quantum of evidence needed to show liability in
the first instance. Establishing material support and causation
for jurisdictional purposes is a lighter burden than proving a
winning case on the merits. See Agudas Chasidei Chabad of
U.S. v. Russian Federation, 528 F.3d 934, 940 (D.C. Cir.
2008).
In its opinion rejecting Sudan’s motion to vacate the
default judgments, the district court identified two bases upon
which the plaintiffs established material support and causation
for the purpose of jurisdiction. For plaintiffs proceeding under
the federal cause of action in § 1605A(c), the court – following
then-binding Circuit precedent – held the plaintiffs had
established jurisdiction by making a “non-frivolous” claim that
Sudan materially supported al Qaeda and that such support
proximately caused their injuries. Owens V, 174 F. Supp. 3d at
272-75. Since that decision, the Supreme Court has overruled
the precedent upon which the district court relied, requiring a
plaintiff to prove the facts supporting the court’s jurisdiction
under the FSIA, rather than simply to make a “non-frivolous”
claim to that effect. Bolivarian Republic of Venezuela v.
Helmerich & Payne Int’l Drilling Co., 137 S. Ct. 1312, 1316
(2017). The Court’s decision eliminates the first basis for the
district court’s jurisdictional holding.
The decision in Helmerich, however, left intact the district
court’s second basis for concluding the plaintiffs had
sufficiently shown material support and causation in this case.
For reasons no longer relevant, the district court concluded that
plaintiffs who are ineligible to use the federal cause of action
38
in § 1605A(c) – namely, victims or claimants who were not
U.S. nationals, military service members, or government
employees or contractors – could not establish jurisdiction
simply by making a non-frivolous claim of material support
and causation. Owens V, 174 F. Supp. 3d at 275. Consequently,
the court required those plaintiffs to offer evidence proving
these jurisdictional elements. Id. First in its 2011 opinion on
liability and again in its 2016 opinion denying vacatur, the
district court weighed the plaintiffs’ evidence of material
support and causation and concluded it satisfied the
jurisdictional standard. Owens V, 174 F. Supp. 3d at 276;
Owens IV, 826 F. Supp. 2d at 150-51. Because the court’s
finding of Sudan’s material support for the 1998 embassy
bombings plainly applies to all claimants and all claims before
this court, Sudan can prevail in its challenge to material support
and causation only if the district court erred in its factual
findings of jurisdiction. We conclude it did not.
In each of the cases, the plaintiffs’ evidence was received
at the three-day evidentiary hearing held by the district court in
October 2010. The court held that hearing to satisfy the FSIA
requirement that, in order to secure a default judgment, a
claimant must “establish[] his claim or right to relief by
evidence satisfactory to the court.” 28 U.S.C. § 1608(e). At the
hearing, the court received evidence of both Iran’s and Sudan’s
support for al Qaeda in advance of the embassy bombings, but
we limit our discussion here to the evidence pertaining to
Sudan.
In evaluating Sudan’s evidentiary arguments, we proceed
in three steps. First, we summarize the proceedings at the 2010
evidentiary hearing and the facts presented by the plaintiffs and
their expert witnesses. Then we consider Sudan’s two
challenges to this evidence. In the first, Sudan argues the
district court relied upon inadmissible evidence to conclude
39
that it materially supported al Qaeda. In the second, Sudan
contends that, even if admissible, the evidence presented could
not establish material support and causation as a matter of law.
A. The Evidentiary Hearing
At the October 2010 evidentiary hearing the plaintiffs
presented evidence from a variety of sources. Reviewing this
evidence as a whole, the district court concluded it sufficed
both to establish jurisdiction and to prove Sudan’s liability on
the merits. We first describe the sources of evidence the court
received and then briefly summarize the factual findings the
court drew from this evidence.
1. The sources of evidence presented
As is apparent from the opinions of the district court, the
testimony of expert witnesses and al Qaeda operatives was of
critical importance to its factual findings. For this reason, we
discuss the experts’ and operatives’ testimony first and in
greatest detail. The plaintiffs produced three expert witnesses
and prior recorded testimony from three former members of al
Qaeda.
First, the plaintiffs called terrorism consultant Evan
Kohlmann to testify about the relationship between Sudan and
al Qaeda in the 1990s. Kohlmann advised government and
private clients on terrorist financing, recruitment, and history.
He has authored a book and several articles on terrorism and
has testified as an expert in multiple criminal trials. Kohlmann
based his opinions regarding Sudan’s support for al Qaeda
upon a review of secondary source materials, including but not
limited to the exhibits introduced at the hearing, testimony
from criminal trials, and firsthand interviews he conducted
with al Qaeda affiliates over the past decade. Kohlmann
40
testified that this information was of the type routinely relied
upon by experts in the counterterrorism field.
Next, the court received a written expert report from Dr.
Lorenzo Vidino on “Sudan’s State Sponsorship of al Qaeda.”
Dr. Vidino was a fellow at the Belfer Center for Science and
International Affairs, Kennedy School of Government, at
Harvard University. Like Kohlmann, Vidino has authored
books and articles on terrorism and has previously testified in
federal court on Sudan’s support for al Qaeda. Vidino based his
report upon open source materials initially gathered around
2004, which he reviewed and updated for the present case.
The district court also received live testimony and a
written report from Steven Simon, a security consultant and
Special Advisor for Combatting Terrorism at the Department
of State. From 1995 to 1999, during which time al Qaeda
bombed the embassies, Simon served on the National Security
Council (NSC) as Senior Director for Transnational Threats.
His responsibilities at the NSC included directing
counterterrorism policy and operations on behalf of the White
House. After his government service, Simon published a book
and several articles on international terrorism and taught
graduate courses on counterterrorism.
The court also heard recorded trial testimony from three
former al Qaeda operatives. In particular, the plaintiffs’ star
witness, Jamal al Fadl, cast a long shadow over the
proceedings. al Fadl was a Sudanese national and former senior
al Qaeda operative turned FBI informant. Now in the witness
protection program, in 2001 he testified at the criminal trial of
Usama bin Laden and other terrorists arising from the African
embassy bombings. Al Fadl was particularly well-suited to
address the relationship between al Qaeda and the government
of Sudan in the 1990s because he served then as a principal
41
liaison between the terrorist group and Sudanese intelligence.
He had also been instrumental in facilitating al Qaeda’s
relocation from Afghanistan to Sudan in 1991 and had assisted
the group in acquiring properties there. Although al Fadl did
not testify at the evidentiary hearing, his prior testimony
provided much of the factual basis for the expert witnesses’
opinions.
The court also received transcripts of prior testimony from
two other al Qaeda operatives: Essam al Ridi and L’Houssaine
Kherchtou. Both al Ridi and Kherchtou were members of al
Qaeda when the terrorist group was based in Sudan, and both
testified at the bin Laden trial. They testified, based upon first-
hand knowledge, about the Sudanese government and military
facilitating al Qaeda’s movement throughout East Africa and
protecting al Qaeda leadership. The plaintiffs also submitted a
deposition from al Ridi prepared for the instant case.
In addition to this witness testimony, the court viewed
videos produced by al Qaeda describing its move to Sudan and
its terrorist activities thereafter. And finally, the court
considered reports from the U.S. Department of State and the
Central Intelligence Agency describing Sudan’s relationship
with al Qaeda in the 1990s. 3
3
Sudan did put some evidence into the record before absenting itself
from the litigation. For its 2004 motion to dismiss, Sudan obtained
statements disputing its support for the 1998 embassy bombings
from Timothy Carney, the U.S. Ambassador to Sudan from 1995 to
1997, and from John Cloonan, a FBI Special Agent charged with
building the conspiracy case against Bin Laden during the 1990s.
The plaintiffs moved for leave to depose Carney and Cloonan, but
the FBI and the Department of State successfully opposed the
motion, arguing the request did not comply with each agency’s so-
called Touhy regulations for obtaining permission to solicit
testimony from former government officials, see 22 C.F.R. §§ 172.1-
42
2. The district court’s findings of fact
From the plaintiffs’ evidence, the district court found that
Sudan had provided material support to al Qaeda and that such
support caused the embassy bombings. This support was
provided in several ways, which we recount in a much
abbreviated form.
First, the district court found Sudan provided al Qaeda a
safe harbor from which it could direct its operations. Owens IV,
826 F. Supp. 2d at 139-43. This began with the overthrow of
the Sudanese government in 1989 by Omar al Bashir, leader of
the Sudanese military, and Hassan al Turabi, head of the
National Islamic Front (NIF), Sudan’s most powerful political
party. Kohlmann and Simon testified that al Turabi initiated
contact with al Qaeda and other extremist groups, encouraging
them to relocate to Sudan. Al Bashir formalized this initial
outreach with a 1991 letter of invitation to Usama bin Laden.
According to all three experts, Sudan’s outreach to al Qaeda
was part of a broader strategy of inviting radical Islamist
172.9; 28 C.F.R. §§ 16.21-16.29. The agencies also noted that Sudan
had not properly sought approval to take the declarations.
Sudan then ceased participating in the litigation. Although
Sudan does not now contend the declarations were admissible, see
Owens V, 174 F. Supp. 3d at 276 n.16, at oral argument it complained
the court unfairly considered the plaintiffs’ supposedly inadmissible
evidence but not the Carney and Cloonan declarations. The matter
stands precisely as the district court left it in 2005. Sudan likely
violated the agencies’ Touhy regulations in obtaining the declarations
in 2004. Allowing it to use the declarations on appeal, without
affording the plaintiffs an opportunity to seek depositions from
Carney and Cloonan in compliance with the regulations, would work
a substantial injustice.
43
groups to establish bases of operations in the country, which is
confirmed by the State Department Patterns of Global
Terrorism reports. See U.S. DEP’T OF STATE, PATTERNS OF
GLOBAL TERRORISM: 1991, at 3 (1991) (“The government
reportedly has allowed terrorist groups to train on its territory
and has offered Sudan as a sanctuary to terrorist
organizations”). Sudan’s extensive ties to terrorist groups
prompted the Department of State to designate Sudan as a state
sponsor of terrorism in August 1993. U.S. DEP’T OF STATE,
PATTERNS OF GLOBAL TERRORISM: 1993, at 25 (1994).
In 1991 al Qaeda accepted Sudan’s invitation. According
to Kohlmann and Simon, the invitation benefited both bin
Laden and the Sudanese government. For bin Laden, it allowed
al Qaeda to depart an increasingly unstable Afghanistan and
relocate closer to its strategic interests in the Middle East. For
Sudan, outreach to terrorist groups provided leverage against
the government’s enemies at home and abroad and advanced al
Turabi’s ideological ambition for Sudan to become “the new
haven for Islamic revolutionary thought.” Sudan also viewed
al Qaeda as a source of domestic investment as bin Laden was
rumored to be extremely wealthy and was well-known as a
financier of the mujahedeen insurgency in Afghanistan.
Once bin Laden had determined Sudan was a trustworthy
partner, al Qaeda moved its operations there. All three experts
described al Qaeda purchasing several properties in Sudan,
including a central office and a guesthouse in Khartoum, and
starting terrorist training camps on farms throughout the
country. Al Fadl personally participated in some of these
transactions. For a time, according to Kohlmann, al Qaeda even
shared offices with the al Turabi’s NIF party in Khartoum. The
close relationship between al Qaeda and the Sudanese
government continued throughout the early 1990s, according
to Kohlmann and Vidino, even after bin Laden publicized his
44
intent to attack American interests in a series of fatwas and after
al Qaeda members claimed responsibility for the killing of U.S.
soldiers in Mogadishu, Somalia. For example, bin Laden
appeared in multiple television broadcasts with al Bashir and
al Turabi celebrating the completion of infrastructure projects
financed, in part, by bin Laden. Sudanese intelligence officials
also worked hand-in-glove with al Qaeda operatives to screen
purported al Qaeda volunteers entering the country in order “to
ensure that they were not seeking to infiltrate bin Laden’s
organization on behalf of a foreign intelligence service.” Al
Fadl personally took part in these efforts.
Sudan also helped al Qaeda develop contacts with other
terrorist organizations. In 1991 the NIF organized an
unprecedented gathering of terrorist organizations from around
the world in Khartoum at the Popular Arab and Islamic
Congress. Several of these groups, including the Egyptian
Islamic Jihad (EIJ), whose membership would later overlap
with that of al Qaeda, and the Iranian-backed Hezbollah, which
later provided training to al Qaeda operatives, also established
bases in Sudan. According to Kohlmann and Simon, Sudanese
intelligence actively assisted al Qaeda in forming contacts with
these groups, allowing the nascent organization to acquire
skills and to recruit members from the more experienced
groups that it would later use with devastating effect.
Although Sudan expelled bin Laden in 1996 under
international pressure, Kohlmann, Vidino, and one other expert
testified that some al Qaeda operatives remained in the country
thereafter. They based this conclusion, in part, upon an
unclassified report of the CIA, dated December 1998. A State
Department report from 1998, published after the embassy
bombings, reinforced the conclusion that “Sudan continued to
serve as a meeting place, safe haven, and training hub for a
number of international terrorist groups, particularly Usama
45
Bin Ladin’s al-Qaida organization.” U.S. DEP’T OF STATE,
PATTERNS OF GLOBAL TERRORISM: 1998 (1999). Although
expelling bin Laden was a “positive step[],” the CIA concluded
Sudan continued to send “mixed signals about cutting its
terrorist ties” after his expulsion but before the embassy
bombings. CENT. INTEL. AGENCY, SUDAN: A PRIMER ON
BILATERAL ISSUES WITH THE UNITED STATES, at 4 (May 12,
1997). Notably, Sudan remains a designated state sponsor of
terrorism today.
The district court also found Sudan had provided financial,
governmental, military, and intelligence support to al Qaeda.
Owens IV, 826 F. Supp. 2d at 143-46. During its time in Sudan,
al Qaeda operated several business and charities. All three
experts explained that these enterprises provided legitimate
employment for al Qaeda operatives as well as cover for the
group’s illicit activities throughout the region. The Sudanese
government actively promoted al Qaeda’s businesses in several
ways. As described by al Fadl, Sudan partnered with al Qaeda-
affiliated businesses in major infrastructure projects, allowing
al Qaeda to gain access to and experience with explosives.
Sudan also granted al Qaeda businesses “customs exemptions”
and “tax privileges” which, according to Vidino, enabled al
Qaeda nearly to monopolize the export of several agricultural
products. Sudan offered al Qaeda the services of its banking
system, which helped the organization in “laundering money
and facilitating other financial transactions that stabilized and
ultimately enlarged Bin Laden’s presence in the Sudan.”
From the very beginning Sudan also aided al Qaeda’s
movement throughout the region. Relying upon al Fadl’s
testimony, Kohlmann testified that al Qaeda circulated copies
of President al Bashir’s letter of invitation among its
operatives. Al Qaeda agents could present these copies to
Sudanese officials in order to “avoid having to go through
46
normal immigration and customs controls” and to head off any
“problems with the local police or authorities.” According to
Kohlmann, Sudanese intelligence also transported weapons
and equipment for al Qaeda from Afghanistan to Sudan via the
state-owned Sudan Airways. On at least one occasion, Sudan
allowed al Qaeda operative Kherchtou to smuggle $10,000 in
currency – an amount above that permitted by law – to an al
Qaeda cell in Kenya. This Kenyan cell ultimately carried out
the bombing of the U.S. embassy in Nairobi in 1998.
In addition to aiding al Qaeda’s movements directly, all
three experts testified that the government provided al Qaeda
members hundreds of passports and Sudanese citizenship. Al
Qaeda operatives needed these passports because they were “de
facto stateless individuals” who could no longer safely travel
on passports from their countries of origin. Upon returning
from abroad, Sudanese officials allowed al Qaeda operatives to
bypass customs and immigration controls. As al Fadl testified,
this allowed militants to avoid having their passport stamped
by a nation that had come under increasing scrutiny for its ties
to terrorist organizations.
Finally, the district court identified several instances in
which Sudan provided security to al Qaeda leadership. Owens
IV, 826 F. Supp. 2d at 145. In his prior testimony, al Fadl
recounted an occasion when Sudanese intelligence intervened
to prevent the arrest of al Qaeda operatives by local police. Al
Ridi also testified that Sudan assigned 15 to 20 uniformed
soldiers to act as personal bodyguards for bin Laden and other
al Qaeda members. In 1994, according to Kohlmann, Sudanese
intelligence even foiled an assassination attempt against bin
Laden in Khartoum. On another occasion, Sudanese
intelligence thwarted a plot against al Qaeda’s second-in-
command, Ayman al-Zawahiri. Even as international pressure
mounted on Sudan to expel bin Laden, Simon – who covered
47
terrorism matters for the NSC during the events in question –
explained that the Sudanese government refused to provide
actionable intelligence on al Qaeda’s plans throughout the
region or to hand bin Laden over to the United States. Simon
echoed the State Department’s conclusion that bin Laden’s
eventual expulsion was nothing more than a “symbolic gesture
designed to placate the international community” that changed
little in the day-to-day reality of Sudan’s support for terrorism.
See U.S. DEP’T OF STATE, PATTERNS OF GLOBAL TERRORISM:
1998.
From this evidence, all three experts concluded Sudan
provided material support to al Qaeda. Moreover, the experts
viewed this support as “indispensable” to the success of the
1998 embassy bombings. Without “a country that not only
tolerated, but actually actively assisted . . . al Qaeda terrorist
activities,” Vidino asserted, “al Qaeda could not have achieved
its attacks on the US Embassies.” Noting that “the vast majority
of planning and preparation [for the attacks] took place
between the years of 1991 and 1997,” Kohlmann opined
“without the base that Sudan provided, without the capabilities
provided by the Sudanese intelligence service, without the
resources provided, none of this would have happened.” Simon
likewise surmised “it’s difficult to see how . . . the attacks
could have been carried out with equal success” without
Sudan’s “active support” and safe haven.
From the expert testimony, trial transcripts, and
government reports, the district court concluded that the
plaintiffs had met their burden of demonstrating “to the
satisfaction of the court” that Sudan had provided material
support to al Qaeda and that such support was a legally
sufficient cause of the embassy bombings. Owens IV, 826 F.
Supp. 2d. at 150. As such, the plaintiffs both established
jurisdiction and prevailed on the merits of liability. When faced
48
with Sudan’s Rule 60(b)(4) motion to vacate the default
judgments as void, the district court reaffirmed that its findings
of material support and causation satisfied the standard for
jurisdiction under § 1605A(a). Owens V, 174 F.3d at 276.
On this appeal, Sudan contends the record contains
insufficient evidence of material support and causation to give
the court jurisdiction under the FSIA. Its attack comes in two
forms. First, Sudan disputes the admissibility of much of the
evidence introduced to support the district court’s factual
findings. It does so despite having failed to participate in the
evidentiary hearing, where such challenges would have been
properly raised. Second, even assuming the evidence was
admissible, Sudan contends the district court’s factual findings
on material support and causation were clearly erroneous and
insufficient to sustain jurisdiction as a matter of law. As we
shall see, neither argument has merit.
B. Standard of Review
Sudan faces an uphill battle with its evidentiary challenges
for two reasons. First is the burden of proof applicable to a
FSIA case. The FSIA “begins with a presumption of immunity”
for a foreign sovereign. Bell Helicopter Textron, Inc. v. Islamic
Republic of Iran, 734 F.3d 1175, 1183 (D.C. Cir. 2013). The
plaintiff bears an initial burden of production to show an
exception to immunity, such as § 1605A, applies. Id. Then,
“the sovereign bears the ultimate burden of persuasion to show
the exception does not apply,” id., by a preponderance of the
evidence. See Simon v. Republic of Hungary, 812 F.3d 127, 147
(D.C. Cir. 2016). Therefore, if a plaintiff satisfies his burden of
production and the defendant fails to present any evidence in
rebuttal, then jurisdiction attaches.
49
Although a court gains jurisdiction over a claim against a
defaulting defendant when a plaintiff meets his burden of
production, the plaintiff must still prove his case on the merits.
This later step, however, does not affect the court’s jurisdiction
over the case, and a defaulting defendant normally forfeits its
right to raise nonjurisdictional objections. See Practical
Concepts, 811 F.2d at 1547. Thus, the only question before this
court is whether the plaintiffs have met their rather modest
burden of production to establish the court’s jurisdiction.
This brings us to Sudan’s second obstacle on appeal. When
assessing whether a plaintiff has met his burden of production,
appellate review of the district court’s findings of fact and
evidentiary rulings is narrowly circumscribed. With respect to
a defaulting sovereign, the FSIA requires only that a plaintiff
“establish[] his claim or right to relief by evidence satisfactory
to the court.” 28 U.S.C. § 1608(e). This standard mirrors a
provision in Federal Rule of Civil Procedure 55(d) governing
default judgments against the U.S. Government. Commercial
Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 242 (2d Cir.
1994). While both § 1608(e) and Rule 55(d) give an
unresponsive sovereign some protection against an unfounded
default judgment, see Jerez, 775 F.3d at 423, neither provision
“relieves the sovereign from the duty to defend cases,”
Rafidain Bank, 15 F.3d at 242. Moreover, § 1608(e) does not
“require the court to demand more or different evidence than it
would ordinarily receive,” cf. Marziliano v. Heckler, 728 F.2d
151, 158 (2d Cir. 1984) (applying Rule 55(d)); indeed, “the
quantum and quality of evidence that might satisfy a court can
be less than that normally required.” Alameda v. Sec’y of
Health, Ed. & Welfare, 622 F.2d 1044, 1048 (1st Cir. 1980)
(applying Rule 55(d)).
Unlike the court’s conclusions of law, which we review de
novo, we review for abuse of discretion the district court’s
50
satisfaction with the evidence presented. Hill v. Republic of
Iraq, 328 F.3d 680, 683 (D.C. Cir. 2003). A district court
abuses its discretion when it relies upon a clearly erroneous
finding of fact. Amador County v. U.S. Dep’t of the Interior,
772 F.3d 901, 903 (D.C. Cir. 2014). In a FSIA default
proceeding, a factual finding is not deemed clearly erroneous
if “there is an adequate basis in the record for inferring that the
district court . . . was satisfied with the evidence submitted.”
Rafidain Bank, 15 F.3d at 242 (quoting Marziliano, 728 F.2d
at 158). That inference is drawn when the plaintiff shows “her
claim has some factual basis,” cf. Giampaoli v. Califano, 628
F.2d 1190, 1194 (9th Cir. 1980) (applying Rule 55(d)), even if
she might not have prevailed in a contested proceeding.
Provided “the claimant’s district court brief and reference to
the record appear[] relevant, fair and reasonably
comprehensive,” we will not set aside a default judgment for
insufficient evidence. Alameda, 622 F.2d at 1049. This lenient
standard is particularly appropriate for a FSIA terrorism case,
for which firsthand evidence and eyewitness testimony is
difficult or impossible to obtain from an absent and likely
hostile sovereign.
The district court also has an unusual degree of discretion
over evidentiary rulings in a FSIA case against a defaulting
state sponsor of terrorism. For example, we have allowed
plaintiffs to prove their claims using evidence that might not be
admissible in a trial. See Han Kim v. Democratic People’s
Republic of Korea, 774 F.3d 1044, 1048-51 (D.C. Cir. 2014)
(noting “courts have the authority – indeed, we think, the
obligation – to adjust evidentiary requirements to differing
situations” and admitting affidavits in a FSIA default
proceeding) (internal alterations and quotation marks
removed). This broad discretion extends to the admission of
expert testimony, which, even in the ordinary case, “does not
constitute an abuse of discretion merely because the factual
51
bases for an expert’s opinion are weak.” Joy v. Bell Helicopter
Textron, Inc., 999 F.2d 549, 567 (D.C. Cir. 1993). Section
1608(e) does not require a court to step into the shoes of the
defaulting party and pursue every possible evidentiary
challenge; only where the court relies upon evidence that is
both clearly inadmissible and essential to the outcome has it
abused its discretion. This is part of the risk a sovereign runs
when it does not appear and alert the court to evidentiary
problems. Cf. Bell Helicopter Textron, 734 F.3d at 1181.
In this case, the district court has already undertaken to
weigh the plaintiffs' evidence and determine its admissibility
without any assistance from Sudan. Under these circumstances,
we accord even more deference to the district court’s factual
findings and evidentiary rulings in a FSIA case than in
reviewing default judgments to which the strictures of
§ 1608(e) (or Rule 55(d)) do not apply.
Deference is especially appropriate when considering the
lengthy history of the proceedings in the district court. The
same learned judge has presided over this litigation since 2001.
Over that time, the court has gained considerable familiarity
with the plaintiffs’ evidence and, during the periods when
Sudan participated, with its objections to that evidence. The
court has issued four lengthy and detailed opinions that directly
address many of Sudan’s challenges to the evidence of material
support and jurisdictional causation. Through its opinions and
actions, it is abundantly clear that the district court both
appreciated and carried out is obligation under § 1608(e). Cf.
Compania Interamericana Exp.-Imp., S.A. v. Compania
Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996)
(vacating default judgment when “the record does not reflect
that the court considered the differing standard required by
§ 1608(e)”). Only if we found the record wholly lacking an
52
“adequate basis” for the district court’s conclusions would we
overturn its jurisdictional findings.
C. Admissibility of the Evidence
Sudan first challenges the admissibility of evidence
supporting the district court’s findings of material support and
jurisdictional causation. In order to issue a default judgment
under § 1608(e), a court must base its findings of fact and
conclusions of law upon evidence admissible under the Federal
Rules of Evidence. Kim, 774 F.3d at 1049. If inadmissible
evidence alone substantiates an essential element of
jurisdiction, then the court abuses its discretion in concluding
the claimant has established his case “by evidence satisfactory
to the court.” 28 U.S.C. § 1608(e).
Reviewing the admissibility of evidence supporting a
default judgment presents significant challenges, which color
our treatment of Sudan’s arguments. The adversarial process
gives the parties an incentive to raise evidentiary challenges at
the earliest opportunity because failure to do so ordinarily
results in their forfeiture. Raising evidentiary challenges early
on also provides the proponent of the evidence the opportunity
to respond by offering an alternative theory of admissibility or
different, admissible evidence on the same point. Thus, the
adversarial process properly places the burden of admissibility
upon the interested party, allocates the original determination
of admissibility to the district court, which is more familiar
with the evidence, and preserves evidentiary disputes for
appellate review with the aid of a full trial record. Furthermore,
allowing a defaulting defendant to benefit from sandbagging
the plaintiff with an admissibility objection on appeal would be
unfair and would encourage gamesmanship. When the
defendant defaults, therefore, we do not consider its evidentiary
challenges on appeal.
53
These principles do not map neatly to a FSIA case because
a defaulting defendant may challenge the factual basis for the
court’s jurisdiction for the first time on appeal. And because a
FSIA plaintiff must produce evidence that is both admissible,
Kim, 774 F.3d at 1049, and “satisfactory to the court,” 28
U.S.C. § 1608(e), in order to obtain a default judgment, we
presume a defendant may also challenge for the first time on
appeal the admissibility of evidence supporting a jurisdictional
fact. As previously noted, however, a defendant sovereign that
defers its challenge until appealing a default judgment makes
the district court’s decision less fully informed and deprives the
reviewing court of a fully developed record; it also handicaps
the non-defaulting plaintiff in filling out the evidentiary record.
For these reasons, we will not accept a belated challenge to
admissibility raised by a defaulting sovereign unless the
contested evidence is clearly inadmissible and we seriously
doubt the plaintiff could have provided alternative evidence
that would have been admissible. Those circumstances are not
present here.
In this case, Sudan principally challenges the admissibility
of two types of evidence: (1) the plaintiffs’ expert testimony
and (2) reports from the Department of State and the CIA. We
find no error in the district court’s reliance upon either.
1. The expert testimony
In its opinions on liability and on Sudan’s Rule 60(b)
motion, the district court discussed the experts’ testimony in
great detail and concluded it sufficed to establish jurisdiction.
Owens V, 174 F. Supp. 3d at 276. Because it may be
dispositive, we, too, start with the expert testimony.
54
The testimony of expert witnesses is of crucial importance
in terrorism cases, see, e.g., Kilburn, 376 F.3d at 1132(jurisdiction satisfied based solely upon the declaration of an
expert witness); Boim v. Holy Land Found. for Relief & Dev.,
549 F.3d 685, 704 (7th Cir. 2008); United States v. Damrah,
412 F.3d 618, 625 (6th Cir. 2005), because firsthand evidence
of terrorist activities is difficult, if not impossible, to obtain.
Victims of terrorist attacks, if not dead, are often incapacitated
and unable to testify about their experiences. Perpetrators of
terrorism typically lie beyond the reach of the courts and go to
great lengths to avoid detection. Eyewitnesses in a state that
sponsors terrorism are similarly difficult to locate and may be
unwilling to testify for fear of retaliation. The sovereigns
themselves often fail to appear and to participate in discovery,
as Sudan did here. With a dearth of firsthand evidence, reliance
upon secondary materials and the opinions of experts is often
critical in order to establish the factual basis of a claim under
the FSIA terrorism exception.
Sudan raises three challenges to the expert testimony
presented at the evidentiary hearing. First, despite conceding
that expert testimony is “doubtless admissible” in a FSIA
default proceeding, Sudan contends that experts alone are
insufficient to establish jurisdiction in the absence of other
direct, admissible evidence. Second, Sudan objects that the
plaintiffs’ experts merely served as conduits for inadmissible
hearsay, upon which the district court relied. Finally, Sudan
quarrels with the inferences drawn by the experts and by the
district court from the underlying factual background. None of
these arguments is persuasive.
a. Need for direct evidence
The recent case of Han Kim v. Democratic People’s
Republic of Korea demonstrates the importance of expert
55
testimony in FSIA proceedings and forecloses Sudan’s first
argument. In Kim, relatives of a pastor who was a U.S. citizen
sued the Democratic People’s Republic of Korea (DPRK)
under the FSIA terrorism exception, alleging the regime
abducted, tortured, and killed the cleric for his ministry to
DPRK refugees. 774 F.3d at 1046. Because the DPRK refused
to participate in the litigation and intimidated potential
eyewitnesses, the plaintiffs could offer no direct evidence of
their relative’s torture and killing by the DPRK. Instead, two
experts submitted declarations stating that North Korea
invariably tortured and killed its political prisoners. Id. The
court in Kim found these declarations “doubtless admissible”
under Federal Rule of Evidence 702 and refused categorically
to require eyewitness testimony or direct evidence on both
practical and policy grounds:
In these circumstances, requiring that the Kims
prove exactly what happened to the Reverend
and when would defeat the Act's very purpose:
to give American citizens an important
economic and financial weapon to compensate
the victims of terrorism, and in so doing to
punish foreign states who [sic] have committed
or sponsored such acts and deter them from
doing so in the future. This is especially true in
cases of forced disappearance, like this one,
where direct evidence of subsequent torture and
execution will, by definition, almost always be
unavailable, even though indirect evidence may
be overwhelming. Were we to demand more of
plaintiffs like the Kims, few suits like this could
ever proceed, and state sponsors of terrorism
could effectively immunize themselves by
killing their victims, intimidating witnesses, and
refusing to appear in court.
56
Id. at 1048-49 (internal citations and quotation marks
omitted).
Here, as in Kim, the plaintiffs face a state sponsor of
terrorism that has refused to participate in the litigation. By
skipping discovery and the evidentiary hearing, Sudan made it
virtually impossible for the plaintiffs to get eyewitness
accounts of its activities in the 1990s. Nor can the plaintiffs
ordinarily subpoena members of al Qaeda, many of whom are
dead or in hiding, to testify regarding the actions of the regime.
The Congress originally enacted the terrorism exception in the
FSIA because state sponsors of terrorism “ha[d] become better
at hiding their material support” and misdeeds. Kilburn, 376
F.3d at 1129 (internal quotation marks omitted). Just as
requiring firsthand evidence of the DPRK’s covert atrocities in
Kim would “effectively immunize” the regime from
responsibility for its crimes, requiring that a victim of a state-
supported bombing offer direct evidence of material support
would shield state sponsors of terrorism from liability for the
very predicate act – material support – that gives the court
jurisdiction.
Nevertheless, Sudan persists that expert testimony alone
cannot establish jurisdiction and liability under the FSIA. To
wit, Sudan complains that the plaintiffs did not offer “any
admissible factual evidence” or “call any percipient witnesses
competent to testify about relevant facts in Sudan in the
1990s.” In particular, Sudan would have us distinguish Kim as
having turned solely upon a piece of non-expert evidence.
Sudan’s argument is both legally and factually flawed.
Neither § 1608(e) nor any other provision of the FSIA requires
a court to base its decision upon a particular type of admissible
evidence. As long as the evidence itself is admissible, as expert
57
testimony certainly may be, and the court finds it satisfactory,
its form or type is irrelevant. Cf. Holland v. United States, 348
U.S. 121, 140 (1954) (refusing to distinguish between different
types of evidence in a criminal prosecution). Indeed, cases in
this Circuit and in others have repeatedly sustained jurisdiction
or liability or both under the terrorism exception to the FSIA
and in other terrorism cases based solely upon expert
testimony. Kilburn, 376 F.3d at 1132; Boim, 549 F.3d at 705(“[W]ith [the plaintiff’s expert report] in the record and nothing
on the other side the [district] court had no choice but to enter
summary judgment for the plaintiffs with respect to Hamas’s
responsibility for the Boim killing”). Therefore the plaintiffs’
“failure” to present eyewitness testimony or other direct
evidence is of no moment as to whether they have satisfied their
burden of production.
Sudan’s attempt to distinguish Kim on its facts is similarly
unpersuasive. True, in Kim, we placed great weight upon a
single piece of admissible non-expert evidence: the conviction
of a DPRK agent who had kidnapped the victim, of which the
district court took judicial notice. Kim, 774 F.3d at 1049. This
conviction placed the victim at the scene of the crime and
allowed the court to conclude he had been subjected to the
torture and killing that the DPRK “invariably” inflicts upon its
prisoners. Id. at 1051. Without this conviction, we noted, “[o]ur
conclusion would no doubt differ” because there was no other
evidence linking the DPRK to the victim’s disappearance. Id.
Our conclusion, however, turned upon the specific facts of
that case; we did not announce a categorical requirement of
direct evidence in FSIA cases. Whereas the conviction in Kim
linked the defendant sovereign to the plaintiff’s disappearance,
in the present case there is no missing link between Sudan’s
actions and the embassy bombings. It is undisputed that al
Qaeda came to Sudan in the early 1990s and maintained its
58
headquarters there. It is also beyond question that al Qaeda
perpetrated the embassy bombings in 1998. As in Kim, expert
testimony supplies the predicate act (here material support, in
Kim torture and extrajudicial killing) linking these two events
and conferring jurisdiction upon the court. But here, unlike in
Kim, we need no further evidence beyond the expert testimony
to connect the defendant sovereign to the extrajudicial killings.
The expert testimony therefore suffices to meet the plaintiffs’
burden of production on jurisdiction.
b. Reliance upon inadmissible hearsay
Sudan next contends the experts recited facts based upon
inadmissible hearsay and the district court improperly relied
upon those facts to establish jurisdiction and to hold Sudan
liable.
Under Federal Rule of Evidence 703, a properly qualified
expert may base his opinion upon otherwise inadmissible
sources of information as long as those sources are reasonably
relied upon in his field of expertise. Further, the expert may
disclose to the factfinder otherwise inadmissible “underlying
facts or data as a preliminary to the giving of an expert
opinion.” See, e.g., FED. R. EVID. 705 advisory committee’s
note. Indeed, disclosure is often necessary to enable the court
to “decid[e] whether, and to what extent, the person should be
allowed to testify.” Id.; 2 MCCORMICK ON EVIDENCE § 324.3
(7th ed. 2016) (“otherwise the opinion is left unsupported with
little way for evaluation of its correctness”). Nevertheless, “the
underlying information” relied upon by a qualified expert “is
not admissible simply because the [expert’s] opinion or
inference is admitted.” See FED. R. EVID. 703 advisory
committee’s note. Thus, as Sudan points out, “a party cannot
call an expert simply as a conduit for introducing hearsay under
the guise that the testifying expert used the hearsay as the basis
59
of his testimony.” Marvel Characters, Inc. v. Kirby, 726 F.3d
119, 136 (2d Cir. 2013) (internal quotation marks omitted).
Applying these standards to the case at hand, we see that
the district court properly distinguished the experts’ clearly
admissible opinions from the potentially inadmissible facts
underlying their testimony. Sudan principally objects to the
district court’s recitation of those underlying facts in its 2011
opinion on liability, which facts it claims are inadmissible even
if the experts’ opinions were properly admitted. The district
court acknowledged this complication in its 2016 opinion on
Sudan’s motion to vacate: “Sudan may have plausible
arguments” that not “every factual proposition in the Court’s
2011 opinion can be substantiated by record evidence
admissible under the Federal Rules of Evidence.” Owens V,
174 F. Supp. 3d at 275. But even if “particular statements in
that opinion may not be adequately supported,” the experts’
opinions “nonetheless” provided “sufficient evidence in the
record of the necessary jurisdictional facts.” Id. We agree with
this conclusion.
At the outset, we note the district court did not err – much
less prejudicially err – in reciting potentially inadmissible facts
in its 2011 opinion on liability. For their conclusions to be
admissible and credible, the plaintiffs’ experts needed to
disclose the factual basis for their opinions. See, e.g., Fox v.
Taylor Diving & Salvage Co., 694 F.2d 1349, 1356 (5th Cir.
1983) (“An expert is permitted to disclose hearsay for the
limited purpose of explaining the basis for his expert opinion”).
Without that disclosure, the district court would have been at a
loss to determine whether the opinions were admissible as
reliable expert testimony. See FED. R. EVID. 702 (requiring
court to determine whether expert’s knowledge “is based on
sufficient facts or data,” and is “the product of reliable
principles and methods” that have been “reliably applied . . . to
60
the facts of the case”). Therefore, the court did not err in
allowing the plaintiffs’ experts to recount potentially
inadmissible facts in order to establish the basis for their
admissible opinions.
The district court also needed to engage with the
underlying facts in order to explain why it admitted and
credited the experts’ opinions. Without those facts, we too
would struggle to evaluate Sudan’s evidentiary challenges to
the opinion testimony. Hence, some discussion of the
potentially inadmissible underlying facts was unavoidable in
the 2011 opinion in order to admit, to credit, and to enable our
review of the experts’ opinions.
More important, the district court properly based its
findings upon the experts’ “undoubtedly admissible” opinions
and not upon any arguably inadmissible facts. The district
court’s 2011 and 2016 opinions extensively quote the experts’
opinions in reaching the conclusion that Sudan’s material
support caused the embassy bombings. See Owens V, 174 F.
Supp. 3d at 277-79 (quoting the opinions of Kohlmann, Simon,
and Vidino); Owens IV, 826 F. Supp. 2d at 146 (quoting Simon
and Kohlmann to conclude “Sudanese government support was
critical to the success of the 1998 embassy bombings”). We
therefore see no error in the court’s conclusion that the expert
testimony satisfied the plaintiffs’ burden of production on
jurisdictional causation.
In a supplemental filing, Sudan compares the experts’
opinions in this case to those held inadmissible in Gilmore v.
Palestinian Interim Self-Government Authority, 843 F.3d 958(D.C. Cir. 2016), but the gulf between the two cases is wide. In
Gilmore, the plaintiff’s expert neither stated nor applied “a
reliable methodology” from which he had derived his opinions.
Id. at 972-73. Instead, “his analysis consist[ed] entirely of
61
deductions and observations that flow directly from the content
of the hearsay statements and would be self-evident to a
layperson.” Gilmore v. Palestinian Interim Self-Gov’t Auth., 53
F. Supp. 3d 191, 213 (D.D.C. 2014). Indeed, the Gilmore
expert’s opinion derived solely from materials that had been
proffered at trial but excluded as inadmissible hearsay. Id. at
212-13. In this case, the plaintiffs’ experts relied upon their
own extensive research into terrorist organizations to conclude
that Sudan provided material support that caused the embassy
bombings. In doing so, the experts – unlike the expert in
Gilmore – drew upon both materials admitted at the evidentiary
hearing and sources encountered in their research and
professional experience. A “layperson” could not reliably have
reached the same conclusions as the experts in this case.
Finally, Sudan belatedly challenges the reliability of the
factual bases for the experts’ testimony. Of course, “the
decision whether to qualify an expert witness is within the
broad latitude of the trial court and is reviewed for abuse of
discretion.” Haarhuis v. Kunnan Enters., 177 F.3d 1007, 1015
(D.C. Cir. 1999) (citing Kumho Tire Co. v. Carmichael, 526
U.S. 137, 152 (1999)). As previously stated, experts may rely
upon hearsay evidence in forming their admissible,
professional opinions. Indeed, it is hard to imagine what other
than hearsay an expert on terrorism could use to formulate his
opinion. See Boim, 549 F.3d at 704 (“Biologists do not study
animal behavior by placing animals under oath, and students of
terrorism do not arrive at their assessments solely or even
primarily by studying the records of judicial proceedings”). All
the Federal Rules require is that the “facts or data in the
particular case upon which an expert bases an opinion or
inference . . . [are] of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences upon
the subject.” FED. R. EVID. 703 (2010) (amended without
substantive change 2011).
62
Here, the plaintiffs’ experts used, among other things, trial
testimony of al Qaeda informants, intelligence reports from the
U.S. Government, and their exhaustive review of secondary
sources to reach their conclusions. Courts have consistently
held these sorts of materials provide an adequate basis for
expert testimony on terrorism. See Damrah, 412 F.3d at 625 &
n.4 (approving an expert’s reliance upon books, press releases,
newspaper articles, and the State Department’s Patterns of
Global Terrorism reports); Boim, 549 F.3d at 704-05(approving reliance upon terrorist websites and observations
from prior criminal trials). In light of the general acceptance of
the plaintiffs’ experts’ sources and methodologies, we
conclude the district court did not abuse its discretion in
qualifying the experts, summarizing their testimony, or
crediting their conclusions.
c. Reliability of the experts’ conclusions
Sudan’s third objection attacks the reliability of the
experts’ opinions in this case as inconsistent with the
underlying facts. In other words, Sudan asks this court to hold
the expert opinions are inadmissible because the plaintiffs’
witnesses have not “reliably applied [their] principles and
methods to the facts of the case.” See FED. R. EVID. 702(d).
This challenge also implies the district court based its findings
of jurisdiction upon clearly erroneous facts. See Price, 389 F.3d
at 197 (reviewing for clear error jurisdictional findings of fact
in a FSIA terrorism case); see also Duke Power Co. v. Carolina
Envtl. Study Grp., 438 U.S. 59, 74-77 (1978).
The problem with this argument is that Sudan has not
explained – either at the evidentiary hearing or on appeal – why
these expert opinions are unreliable or clearly erroneous. By
refusing to participate in the evidentiary hearing, Sudan gave
63
up its opportunity to challenge the fit between the experts’
opinions and the underlying facts. At the hearing, the witnesses
described the general bases of their expertise, and the district
court found them qualified to give opinions on Sudan’s
material support for al Qaeda. In doing so, the experts said they
had relied upon multiple sources of information, including but
not limited to those presented at the hearing. But the experts
did not – and did not need to – provide the specific basis for
their knowledge for each factual proposition they advanced.
See FED. R. EVID. 705 (“an expert may state an opinion – and
give the reasons for it – without first testifying to the
underlying facts or data”). Therefore, we cannot know with
certainty whether the experts’ opinions were consistent or in
conflict with the underlying facts upon which they relied. Had
Sudan participated in the hearing, it could have challenged the
experts to substantiate each and every factual proposition they
asserted. Cf. Bryan v. John Bean Div. of FMC Corp., 566 F.2d
541, 545 (5th Cir. 1978) (noting “the onus of eliciting the bases
of the opinion is placed on the” party opposing admission).
That would have allowed this court to determine whether the
experts’ opinions reliably reflected the more developed factual
record. By deferring its attack until this appeal, Sudan has
deprived the experts of an opportunity to respond, and instead
asks this court to rule on an incomplete record. We decline the
invitation. See Boim, 549 F.3d at 704-05 (rejecting a challenge
to the reliability of an expert’s inferences first brought on
appeal).
2. The State Department reports
Of course, the district court did not rely solely upon expert
testimony to establish jurisdiction and liability. Of particular
importance, the plaintiffs marshaled nearly a decade of State
Department reports that speak directly to Sudan’s support for
terrorist groups, including al Qaeda. See, e.g., U.S. DEP’T OF
64
STATE, PATTERNS OF GLOBAL TERRORISM: 1993 (“Despite
several warnings to cease supporting radical extremists the
Sudanese government continued to harbor international
terrorist groups in Sudan”); U.S. DEP’T OF STATE, PATTERNS
OF GLOBAL TERRORISM: 1998 (“Sudan provides safe haven to
some of the world’s most violent terrorist groups, including
Usama Bin Ladin’s al-Qaida”); U.S. DEP’T OF STATE,
PATTERNS OF GLOBAL TERRORISM: 2000 (2001) (“Sudan . . .
continued to be used as a safe haven by members of various
groups, including associates of Osama bin Laden’s al-Qaeda
organization”). These reports both bolster the experts’
conclusions about Sudan’s material support for the al Qaeda
embassy bombings and independently show the plaintiffs’
claims “ha[ve] some factual basis,” as required by § 1608(e).
Giampaoli, 628 F.2d at 1194.
As with the expert testimony, Sudan contends these reports
are inadmissible hearsay. The plaintiffs urge the State
Department reports were admissible under the hearsay
exception for public records. See FED. R. EVID. 803(8). That
exception allows the admission of “a record or statement of a
public office if” it: (1) contains factual findings (2) from a
legally authorized investigation. Id at 803(8)(iii). Pursuant to
the “broad approach to admissibility” under Rule 803(8), a
court may also admit “conclusion[s] or opinion[s]” contained
within a public record. Beech Aircraft Corp. v. Rainey, 488
U.S. 153, 170 (1988). Once proffered, a public record is
presumptively admissible, and the opponent bears the burden
of showing it is unreliable. Bridgeway Corp. v. Citibank, 201
F.3d 134, 143 (2d Cir. 2000).
The State Department’s Patterns of Global Terrorism
reports fit squarely within the public records exception. First,
the reports contain both factual findings and conclusions on
Sudan’s support for terrorism in general and al Qaeda in
65
particular. Second, the reports were created pursuant to statute,
see 22 U.S.C. § 2656f(a) (requiring annual reports on
terrorism), and are therefore the product of a “legally
authorized investigation.” See Bridgeway, 201 F.3d at 143(holding State Department reports required by statute are
public records). Indeed, in contested FSIA proceedings we
have previously approved admission of the very reports Sudan
challenges, Simpson, 470 F.3d at 361; Kilburn, 277 F. Supp. 2d
at 33, aff'd 376 F.3d at 1131, as have other courts, Damrah, 412
F.3d at 625 n.4.
Sudan objects on appeal to the “trustworthiness” of these
reports, but that objection should have been made in the district
court. See FED. R. EVID. 803(8)(B) (providing for the
admission of public records if “the opponent does not show that
the possible source of the information or other circumstances
indicate a lack of trustworthiness”). Even now, Sudan does not
present any reason, beyond their reliance upon hearsay, to
deem these reports unreliable. See Kehm v. Procter & Gamble
Mfg. Co., 724 F.2d 613, 618 (8th Cir. 1983) (holding inclusion
of hearsay is not a sufficient ground for excluding a public
record as unreliable). 4 Although the reports lack the details that
the expert witnesses provided concerning Sudan’s material
support, they are competent, admissible evidence, which
4
In a supplemental filing, Sudan compares these reports to excerpts
on an Israeli governmental website in Gilmore that we excluded as
inadmissible hearsay outside the exception for public records. But
Gilmore turned upon the plaintiffs’ failure to establish a foundation
for admissibility; they “rested on a bare, one-sentence assertion that
the web pages were admissible under Rule 803(8)” and gave no
“further explication of how the pages conveyed ‘factual findings
from a legally authorized investigation.’” 843 F.3d at 969-70. The
webpages themselves “offer[ed] no information explaining who
made the findings or how they were made.” Id. at 969.
66
together with the plaintiffs’ admissible opinion evidence
satisfy the burden of production on material support and
jurisdictional causation. Because Sudan, by defaulting in the
district court, has not carried its burden of persuasion, the
district court properly asserted jurisdiction over the cases. 5
D. Sufficiency of the Evidence
This brings us to Sudan’s second major challenge to the
plaintiffs’ evidence. In addition to disputing the admissibility
of the evidence, Sudan argues the totality of the evidence
cannot establish material support and jurisdictional causation
as a matter of law. First, Sudan contends the plaintiffs cannot
5
Sudan also objects to the admission of the recorded testimony of
Jamal al Fadl at the Bin Laden criminal trial, contending it is
inadmissible hearsay. We agree to the extent that al Fadl’s prior
testimony is not admissible as “former testimony” under the hearsay
exception in Rule 804(b)(1) because it was not “offered against a
party who had . . . an opportunity and similar motive to develop it
by” cross-examination in the prior criminal case.
The district court held, and the plaintiffs argue on appeal, that
Sudan’s inability to cross-examine al Fadl was irrelevant in a non-
adversarial evidentiary hearing. After all, they note, courts have
admitted sworn affidavits in § 1608(e) hearings in previous FSIA
cases. Owens V, 174 F. Supp. 3d at 280-81 & n.18 (citing Antoine v.
Atlas Turner, Inc., 66 F.3d 105, 111 (6th Cir. 1995) and Kim, 774
F.3d at 1049-51). But in each case cited, the out-of-court declarant
was at least potentially available to testify in court, should the need
arise. Plaintiffs here have made no such showing regarding al Fadl,
who is in the witness protection program. For this reason, we hesitate
to equate affidavits prepared for a FSIA hearing with former trial
testimony recorded for a wholly separate purpose. We, however,
need not decide whether al Fadl’s prior trial testimony is otherwise
admissible because sufficient, admissible evidence sustains the
district court’s findings of jurisdiction in this case.
67
show its actions caused the plaintiffs’ injuries because its
conduct neither substantially nor foreseeably provided material
support for the embassy bombings. Second, Sudan argues the
plaintiffs cannot recover because its support, if any, was not
intended to cause the bombings.
1. Proximate causation
Sudan’s first challenge to the sufficiency of the evidence
rests upon the standard for jurisdictional causation, viz.,
proximate cause. In Kilburn, we held a plaintiff must show
proximate cause to establish jurisdiction under § 1605(a)(7),
the predecessor of the current FSIA terrorism exception. 376
F.3d at 1128. Because § 1605A(a) restates the predicate acts of
§ 1605(a)(7), it stands to reason that proximate cause remains
the jurisdictional standard.
Proximate cause requires “some reasonable connection
between the act or omission of the defendant and the damage
which the plaintiff has suffered.” Id. (quoting PROSSER &
KEETON ON THE LAW OF TORTS 263 (5th ed. 1984)). It
“normally eliminates the bizarre,” Jerome B. Grubart, Inc. v.
Great Lakes Dredge & Dock Co., 513 U.S. 527, 536 (1995),
“preclud[ing] liability in situations where the causal link
between conduct and result is so attenuated that the
consequence is more aptly described as mere fortuity.”
Paroline v. United States, 134 S. Ct. 1710, 1719 (2014). As
Sudan points out, the inquiry into proximate cause contains two
similar but distinct elements. First, the defendant’s actions
must be a “substantial factor” in the sequence of events that led
to the plaintiff’s injury. Rothstein v. UBS, 708 F.3d 82, 91 (2d
Cir. 2013). Second, the plaintiff’s injury must have been
“reasonably foreseeable or anticipated as a natural
consequence” of the defendant’s conduct. Id. Sudan contends
that its support satisfies neither element of the inquiry into
68
proximate cause with respect to the 1998 embassy bombings
here at issue.
a. Substantial factor
Sudan offers two reasons its actions were not a “substantial
factor” in al Qaeda’s embassy bombings. Most basically,
Sudan contends it did not provide any material support at all to
al Qaeda during the 1990s, making proximate causation
impossible. Much of this argument reprises Sudan’s objections
to the inferences drawn by the experts from al Fadl’s testimony,
which objections we have considered and rejected.
Nevertheless, Sudan points to a number of events as to
which it contends the district court erroneously found material
support for al Qaeda. For example, Sudan criticizes the district
court’s discussion of al Qaeda purchasing properties, starting
businesses, and establishing terrorist training camps in Sudan.
Owens IV, 826 F. Supp. 2d at 141, 143-44. Viewed in isolation,
none of these events necessarily evinces a Sudanese hand in al
Qaeda’s activities. That view, however, like Nelson at the
Battle of Copenhagen, turns a blind eye to the broader picture.
The record shows that after al Qaeda started its businesses,
Sudan fostered their growth through tax exceptions and
customs privileges. This allowed al Qaeda nearly to
monopolize the export of several agricultural commodities,
plowing its profits back into its broader organization. Again,
after al Qaeda opened its training camps, Sudanese intelligence
shielded their operations from the local police despite
complaints from nearby residents. This preferential treatment
certainly qualifies as material support, even if Sudan played no
role in creating the underlying businesses and training camps.
Sudan also disputes the district court’s finding that it
provided financial support to al Qaeda. To the contrary, Sudan
69
argues, al Qaeda financially supported Sudan by investing in
Sudanese infrastructure. Sudan is correct – bin Laden did
provide financial assistance to Sudan – but it ignores record
evidence of Sudan’s reciprocal aid. For example, as the district
court noted, bin Laden’s $50 million investment in the partially
state-owned al Sharmal Islamic Bank gave al Qaeda “access to
the formal banking system,” which proved useful for
“laundering money” and “financing terrorist operations.” Id. at
144. Al Qaeda operatives, including bin Laden himself, held
accounts in their real names in al Sharmal bank, demonstrating
the impunity with which the group operated in Sudan. Thus,
although Sudan did not directly fund al Qaeda or its business,
the court reasonably concluded its in-kind assistance had the
same practical effect.
Finally, Sudan invokes the testimony of Simon, the former
NSC staffer overseeing counterterrorism activities, that Sudan
provided no “useful information on bin Laden’s” activities that
“might have helped the U.S. unravel the plots to attack the two
East African U.S. embassies.” Id. at 145. The district court’s
finding of material support, Sudan argues, is unsustainable
“without a showing that Sudan had useful intelligence and
nonetheless elected not to share it.” Although the district court
did not say what Sudan knew about al Qaeda or when it knew
it, Sudan’s claims of ignorance regarding al Qaeda’s aims
defies both reason and the record. After all, Sudan invited
“literally every single jihadist style group,” including al Qaeda,
to relocate to Sudan in the early 1990s. At the time, bin Laden
was known as a wealthy Islamist financier and a leader in the
Afghani mujahedeen. As soon as al Qaeda took up residence in
Sudan, bin Laden began issuing fatwas denouncing the United
States and calling for attacks upon U.S. interests. And after the
Battle of Mogadishu in 1993, al Qaeda operatives publically
boasted about killing U.S. soldiers in Somalia. According to
Kohlmann, bin Laden himself took to the Arab press and U.S.
70
cable television to claim responsibility for this attack. Sudanese
intelligence officers would have been privy to all this
information because they frequented al Qaeda’s guesthouses,
and al Turabi’s NIF shared offices with al Qaeda for a time.
Sudan’s own actions also gave it knowledge of al Qaeda’s
capabilities and aims. For example, Sudanese intelligence must
have known that al Qaeda operated training camps where
explosives were used because it shielded those camps from
interference by the local police. Sudan also knew al Qaeda was
transporting large, undeclared sums of money to Kenya
because Sudanese agents shepherded operatives with this
money past airport inspections. Likewise, Sudan knew
something of al Qaeda’s arsenal because its own planes
transported al Qaeda’s weapons from Afghanistan to Sudan.
Indeed, on one occasion, a Sudanese official even assisted al
Qaeda in an ultimately unsuccessful bid to obtain nuclear
weapons from a smuggler in South Africa. Contrary to Sudan’s
contention, all this information would have aided the United
States in appreciating the threat of al Qaeda and attempting to
disrupt its operations. Sudan’s refusal to divulge any of this
information – even after a specific request from the United
States in 1996 – certainly qualifies as material support. Cf.
Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 125-26
(D.C. Cir. 2011) (security officers who, with knowledge, failed
to intervene in ongoing bomb plot provided material support).
Sudan’s second argument that its actions were not a
“substantial factor” causing the plaintiffs’ injuries focuses
upon the temporal distance between Sudan’s support for al
Qaeda and the embassy bombings. Principally, Sudan argues
that by expelling bin Laden in 1996 it broke the chain of
causation leading to the 1998 embassy bombings. We
confronted and rejected the same objection in our 2008 opinion
affirming the district court’s denial of Sudan’s motion to
71
dismiss. Owens III, 531 F.3d at 895. Although we there
recognized the “[p]laintiffs’ allegations are somewhat
imprecise as to the temporal proximity of Sudan’s actions to
and their causal connection with the terrorist act,” we held “this
imprecision [was] not fatal for purposes of jurisdictional
causation.” Id. (quoting Rux v. Republic of Sudan, 461 F.3d
461, 474 (4th Cir. 2006)) (internal quotation marks omitted). In
order to bridge the gap, we noted the plaintiffs’ “allegations,
and the reasonable inferences drawn therefrom” need only
“demonstrate a reasonable connection between the foreign
state’s actions and the terrorist act.” Id. In other words,
provided the plaintiffs demonstrated proximate cause, the
temporal remoteness between Sudan’s material support and the
embassy bombings was irrelevant. See Grubart, 513 U.S. at
536 (proximate cause “normally eliminates the bizarre”
without “the need for further temporal or spatial limitations”).
And at that stage in the litigation, we concluded, the plaintiffs
had more than met their burden of pleading facts sufficient to
establish proximate causation. Owens III, 531 F.3d at 895.
Fast-forwarding to the present day, the plaintiffs have
substantiated their allegations of material support and
jurisdictional causation with admissible evidence, which Sudan
did not challenge at the evidentiary hearing. Once again, the
district court found the evidence established a “reasonable
connection” between Sudan’s actions and the embassy
bombings. As in our 2008 decision, we see nothing erroneous
with this conclusion for two reasons.
First, we do not believe Sudan broke the chain of
proximate causation by completely disassociating itself from al
Qaeda in or after 1996. A declassified CIA President’s Daily
Brief in December 1998 – months after the embassy bombings
– reports a “Bin Laden associate in Sudan” sending materials
to al Qaeda in Afghanistan. The State Department’s 1998
72
Patterns of Global Terrorism further reports that “Sudan
continued to serve as a meeting place, safehaven, and training
hub for a number of international terrorist groups, particularly
Usama Bin Ladin’s al-Qaida organization” even after the
embassy bombings. Although counterterrorism cooperation
between the United States and Sudan improved after the
bombings, the 2000 Patterns of Global Terrorism report
reiterates “Sudan continued to serve as a safehaven for
members of al-Qaida, the Lebanese Hizballah, al-Gama’a al-
Islamiyya, Egyptian Islamic Jihad, the PIJ, and HAMAS.” In
addition, both Kohlmann and Simon testified that al Qaeda
operatives remained in Sudan after 1996. Sudan insists that a
gap remained between its expulsion of bin Laden and the
government reports detailing al Qaeda’s presence in Sudan in
late 1998, but it strains credulity that Sudan would immediately
resume relations with al Qaeda following bombings for which
the group claimed credit after completely cutting ties two years
earlier. Rather, as the district court inferred, it is far more likely
that Sudan, despite having expelled bin Laden in 1996,
continued to harbor al Qaeda terrorists until and after the
bombings.
Second, even if Sudan were correct on this factual point,
severing ties with al Qaeda would not preclude a finding that
its material support remained a substantial factor in the
embassy bombings. See Boim, 549 F.3d at 699-700 (holding a
“two year[]” interval between the defendant’s material support
and the plaintiff’s injury was far from the point at which
“considerations of temporal remoteness might . . . cut off
liability”).
Sudan counters by selectively quoting the 9/11
Commission Report, stating “Bin Ladin left Sudan . . .
significantly weakened.” Perhaps so if viewed in isolation, but
bin Laden’s expulsion did not undo the support Sudan provided
73
in the previous years. Sudan’s invitation, after all, allowed al
Qaeda to extricate itself from a war-torn Afghanistan and
organize its terrorist enterprise in a stable safe haven. During
al Qaeda’s stay, Sudan sheltered the group from foreign
intelligence and facilitated its movement throughout the region.
It also put al Qaeda in contact with other, more experienced
terrorist groups residing in Sudan. These actions allowed al
Qaeda to grow its membership, to develop its capabilities, and
to establish the cells in Kenya and Tanzania, which ultimately
launched the 1998 bombings. Indeed, “the vast majority of the
planning and preparation [for the embassy attacks] took place
between the years of 1991 and 1997” when Bin Laden, for the
most part, remained in the Sudan. According to one expert,
Sudan’s expulsion of bin Laden may have even “accelerated
the bomb plot” by allowing al Qaeda to militarize its African
cells without fear of reprisal against him by the United States,
which had known of his presence in Sudan. Id. at 310-11. As
Sudan notes, al Qaeda had not committed “any terrorist attacks
predating” its arrival in the country, and indeed “the idea that
al-Qaeda was capable of anything significant” in the early
1990s “was laughable.” Yet in a few short years, al Qaeda
progressed from mounting small-scale, often-unsuccessful
attacks to orchestrating the near-simultaneous bombings of
American embassies in two different countries. Although the
expulsion of bin Laden may have marked a temporary setback
for Al Qaeda, on balance, the organization benefited greatly
from Sudan’s aid during the 1990s. Therefore, the district
court’s conclusion that Sudan’s support was a “substantial
factor” in the chain of causation leading to the embassy
bombings was far from clearly erroneous.
b. Reasonable foreseeability
Sudan contends even if its support was a “significant
factor” in the embassy bombings, the attacks were not
74
“reasonably foreseeable or anticipated as a natural
consequence” of that support. Principally, Sudan argues it was
not foreseeable in 1991 – when Sudan invited bin Laden to
relocate – that al Qaeda would engage in terrorist activities. As
evidence, Sudan points out that bin Laden was not yet infamous
for acts of terrorism and the United States had not yet
designated al Qaeda a terrorist organization or bin Laden a
terrorist and did not do so until after the embassy bombings.
Designation of Foreign Terrorist Organizations, 64 Fed. Reg.
55,112, 55,112/1 (Oct. 8, 1999); Exec. Order No. 13099, 63
Fed. Reg. 45,167, 45,167 (Aug. 20, 1998). That bin Laden and
al Qaeda “may have abused their opportunities” in the country,
Sudan urges, does not mean it should be held accountable when
“its residents later turn out to be terrorists.”
Once again Sudan ignores the broader context of its
actions. In the early 1990s the Sudanese government reached
out to numerous terrorist groups, including the “Palestinian
HAMAS movement, the Palestinian Islamic Jihad, Hezbollah,
. . . al Qaeda, the Egyptian Islamic Jihad, the Libyan Islamic
Fighting Group, dissident groups from Algeria, Morocco, the
Eritrean Islamic Jihad movement.” Owens IV, 826 F. Supp. 2d
at 141 (quoting Kohlmann). “[L]iterally every single jihadist
style group, regardless of what sectarian perspective they had,
was invited to take a base in Khartoum” during this period. Id.That al Qaeda was included in this list of renowned terrorist
organizations supports an inference that its terrorist aims were
foreseeable – indeed, foreseen – at the time of Sudan’s
invitation.
Sudan’s own briefs implicitly concede the foreseeability
of al Qaeda’s aims in the early 1990s. To wit, Sudan reiterates
the district court’s finding that “Bin Laden ‘was a famous
mujahedeen fighter who had successfully fought the Soviet
Union’ and ‘was thought to be fabulously wealthy.’” See
75
Owens IV, 826 F. Supp. 2d at 140-41. Yet it argues “the idea
that al-Qaeda was capable of anything significant was
laughable.” True, al Qaeda was then a fledgling terrorist
organization, but one led by a “famous . . . fighter” and a
“fabulously wealthy” fundamentalist jihadi who had
“successfully fought” a world superpower. Any impartial
observer could see the group’s future potential for mayhem far
outstripped its then already substantial capabilities. Sudan
cannot bury its head in the sand and contend otherwise.
Furthermore, as its relationship with al Qaeda deepened,
Sudan undoubtedly became aware of al Qaeda’s hostility to the
United States and its intention to launch attacks against
American interests. Starting in 1991, bin Laden issued a series
of fatwas against the United States from Khartoum, and al
Qaeda operatives publically boasted about attacking American
soldiers in Somalia in 1993. Despite this, Sudan continued to
assist the group in moving people and resources throughout the
region. Sudan’s claimed ignorance of al Qaeda’s specific aim
to bomb American embassies focuses too narrowly upon those
events; Sudan could not help but foresee that al Qaeda would
attack American interests wherever it could find them.
In sum, Sudan’s actions in the 1990s were undoubtedly a
“substantial factor in the sequence of responsible causation”
that led to the embassy bombings. Rothstein, 708 F.3d at 91.
Moreover, the bombings were a “reasonably foreseeable or
anticipated as a natural consequence” of its material support.
Id. Therefore, the district court correctly held that the plaintiffs
had demonstrated proximate cause, establishing jurisdiction
under the FSIA.
76
2. Sudan’s specific intent
Sudan resists this conclusion by attempting to graft an
additional requirement onto the proximate cause analysis. The
FSIA terrorism exception, Sudan argues, requires something
more than proximate causation: “The foreseeability aspect of
proximate causation” it says, “is reinforced by § 1605A(a)(1)’s
requirement that material support be provided ‘for’ the
predicate act.” Sudan’s point is that the use of “for” with
reference to “the provision of material support” indicates that
the FSIA “requires a showing of intent” on the part of the
foreign sovereign to achieve the predicate act, for which it
refers us to Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 502 (1982) (prohibition on selling
merchandise “marketed for use” with illegal drugs requires a
showing of intent on the defendant’s behalf). But see Posters
’N’ Things, Ltd. v. United States, 511 U.S. 513, 519 (1994)
(prohibition in the same statute on selling a product “intended
or designed for use” with illegal drugs looks only to the
objective features of the product, not to a defendant’s intent).
Under this reading, Sudan’s material support could not give
rise to jurisdiction unless Sudan specifically intended its
support to cause the embassy bombings.
Although the record contains much evidence of Sudan’s
support for al Qaeda and its general awareness of the group’s
terrorist aims, nothing suggests that Sudan specifically knew of
or intended its support to cause the embassy bombings.
Nothing in the FSIA, however, requires a greater showing of
intent than proximate cause. Indeed, we dispatched a similar
argument in Kilburn, along with a hypothetical raised by the
sovereign defendant:
A terrorist organization is supported by two
foreign states. One specifically instructs the
77
organization to carry out an attack against a U.S.
citizen. Can the state which only provides
general support, but was not involved with the
act giving rise to the suit, also be stripped of its
immunity?
376 F.3d at 1128. Yes, we said. Because material support “is
difficult to trace,” requiring more than proximate cause “could
absolve” a state from liability when its actions significantly and
foreseeably contributed to the predicate act. Id.Further, we rejected the related argument that the
“provision of material support or resources . . . for such an act”
required that “a state’s material support must go directly for the
specific act.” Id. at 1130. That limitation, we explained, “would
likely render § 1605(a)(7)’s material support provision
ineffectual” because material support “is fungible” and
“terrorist organizations can hardly be counted on to keep
careful bookkeeping records.” Id. Indeed, in other situations,
courts have required neither specific intent nor direct
traceability to establish the liability of material supporters of
terrorism. See Boim, 549 F.3d at 698 (approving liability for
donors to terrorist organizations whose donations were made
for non-terrorism purposes). As Judge Posner has aptly said,
“[t]o require proof that [a defendant] intended that his
contribution be used for terrorism . . . would as a practical
matter eliminate . . . liability except in cases in which the
[defendant] was foolish enough to admit his true intent.” Id. at
698-99. The same holds true for a state sponsor of terrorism
under the FSIA; it may not avoid liability for supporting known
terrorist groups by professing ignorance of their specific plans
for attacks. In sum, that the evidence failed to show Sudan
either specifically intended or directly advanced the 1998
embassy bombings is irrelevant to proximate cause and
jurisdictional causation.
78
*****
In short, the plaintiffs have offered sufficient admissible
evidence that establishes that Sudan’s material support of al
Qaeda proximately caused the 1998 embassy bombings. The
district court, therefore, correctly held the plaintiffs met their
burden of production under the FSIA terrorism exception.
Because Sudan failed to participate in the litigation, it did not
rebut that its material support caused these extrajudicial
killings. Therefore, this court has jurisdiction to hear claims
against Sudan arising from the 1998 embassy bombings.
IV. Timeliness of Certain Claims
The remainder of Sudan’s jurisdictional arguments apply
only to certain groups of plaintiffs. Even if we rule for Sudan
on all these matters, many of the judgments – and the district
court’s 2011 holding on liability – will therefore remain intact.
One such argument is that the claims of certain plaintiffs
are barred by the statute of limitation in the FSIA, which Sudan
views as a jurisdictional limit on the court’s power to hear a
case. Like its predecessor, the current version of the FSIA
terrorism exception contains a limitation period on personal
injury claims against a state sponsor of terrorism. Application
of the limitation period requires analysis of three components
of the 2008 NDAA.
The first is the limitation period itself. Codified at
§ 1605A(b), the FSIA provides that:
An action may be brought or maintained under
this section if the action is commenced, or a
related action was commenced under section
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1605(a)(7) . . . or [the Flatow Amendment] not
later than the latter of (1) 10 years after April
24, 1996; or (2) 10 years after the date on which
the cause of action arose.
The second component is § 1083(c)(3) of the 2008 NDAA,
which defines the contours of a “related action” and imposes
an additional time limitation on the filing of related actions:
(3) RELATED ACTIONS. – If an action arising
out of an act or incident has been timely
commenced under section 1605(a)(7) . . . or [the
Flatow Amendment], any other action arising
out of the same act or incident may be brought
under section 1605A . . . if the action is
commenced not later than the latter of 60 days
after – (A) the date of the entry of judgment in
the original action; or (B) the date of the
enactment of this Act.
Finally, in addition to filing a new action or a “related
action,” the NDAA offers a second way to avoid the limitation
period if the plaintiff had previously brought a claim under
§ 1605(a)(7). Section 1083(c)(2) of the NDAA provides, in
part:
(2) PRIOR ACTIONS. – (A) IN GENERAL. –
With respect to any action that – (i) was brought
under section 1605(a)(7) of title 28, United
States Code, or [the Flatow Amendment] before
the date of enactment of this act . . . and . . . is
before the courts in any form . . . that action, and
any judgment in the action shall, on motion
made by plaintiffs . . . be given effect as if the
80
action had originally been filed under section
1605A(c).
For these “prior actions” the NDAA removes the
“defenses of res judicada, collateral estoppel, and [the]
limitations period” if the plaintiff moved to convert his prior
action or refiled a new action under § 1605A(c). NDAA
§ 1083(c)(2)(B). A new claim using § 1083(c)(2) is timely if it
complies with the limitation period in § 1605A(b) or was filed
within 60 days of enactment of the NDAA. Id. § 1083(c)(2)(C).
Each provision comes into play in Sudan’s challenge to the
timeliness of the plaintiffs’ actions. In this case, the plaintiffs’
causes of action arose on August 7, 1998, the date of the
embassy bombings. See Vine v. Republic of Iraq, 459 F. Supp.
2d 10, 21 (D.D.C. 2006) (holding a claim under the FSIA
“arises on the date that the action in question occurred”), rev’d
in part on another ground sub nom. Simon v. Republic of Iraq,
529 F.3d 1187, 1194-95 (D.C. Cir. 2008) (describing an
argument to the contrary as “rather strained”), rev’d on another
ground sub nom. Republic of Iraq v. Beaty, 556 U.S. 848(2009). Therefore, unless the plaintiffs can identify a “related
action . . . commenced under section 1605(a)(7)” or had
brought a “prior action” that remained “before the courts in any
form,” the last day to file a new action under § 1605A was
August 7, 2008, ten years after the bombings.
Sudan does not dispute that several of the plaintiffs have
filed timely actions under § 1605A. The Owens plaintiffs filed
their original action under § 1605(a)(7) in October 2001 and
after passage of the NDAA timely moved to convert their prior
action pursuant to § 1083(c)(2). Days before the statutory
deadline, the Amduso and Wamai plaintiffs filed new actions
under § 1605A, and the Osongo and Mwila plaintiffs filed suit
81
on the last possible day. Sudan does not challenge the
timeliness of these plaintiffs.
The Khaliq, Opati, and Aliganga plaintiffs are another
story. The Khaliq plaintiffs filed a complaint in November
2004 but missed the statutory deadline to convert that prior
action under § 1083(c)(2) into a new action under § 1605A. See
Khaliq v. Republic of Sudan, No. 1:04-cv-01536, at *3 (D.D.C.
Sept. 9, 2009) (denying motion to convert under § 1083(c)(2)).
Six months later, they filed a new case under § 1605A,
asserting it was “related” both to their earlier suit and to the
Owens, Mwila, and Amduso actions. The district court ordered
briefing on whether the new suit was a “related action” within
the scope of § 1083(c)(3) and ultimately allowed the case to
proceed.
After the court held the evidentiary hearing and made its
findings on liability and well past August 2008, the Aliganga
plaintiffs moved to intervene in the Owens action, which the
district court allowed, holding their claims were “related” to
the Owens action per § 1083(c)(3). The Opati plaintiffs joined
last, filing a suit “related” to the Owens action under
§ 1083(c)(3) on July 24, 2012. The court allowed both the
Aliganga and Opati plaintiffs the benefit of its earlier findings
on liability and jurisdiction.
Sudan challenges the timeliness of the Khaliq, Opati, and
Aliganga plaintiffs, which raises two issues, only one of which
we need to address on appeal. First, Sudan asserts that the
limitation period in § 1605A(b) is jurisdictional and therefore
bars a court from hearing any untimely action. Unless the
limitation period in § 1605A(b) is jurisdictional, Sudan
forfeited this affirmative defense by defaulting in the district
court. See Practical Concepts, 811 F.2d at 1547. The plaintiffs
argue that the time bar, like most statutes of limitation, is not
82
jurisdictional and hence is forfeit. See Day v. McDonough, 547
U.S. 198, 202 (2006) (“Ordinarily in civil litigation, a statutory
time limitation is forfeited if not raised in a defendant’s answer
or in an amendment thereto”).
Assuming the limitation period is jurisdictional, Sudan
contends the Khaliq, Opati, and Aliganga claims are barred
because they are not “related actions” under § 1605A(b). A
“related action,” Sudan urges, must be filed by the same
plaintiff who had filed an earlier action under § 1605(a)(7),
which the Opati and Aliganga plaintiffs did not do. We need
not, however, decide what qualifies as a “related action”
because we hold the limitation period in § 1605A(b) is not
jurisdictional. As a consequence Sudan forfeited its limitation
defense by defaulting in the district court. See Harris v. Sec’y,
U.S. Dep’t of Veterans Affairs, 126 F.3d 339, 343 (D.C. Cir.
1997).
A line of recent Supreme Court cases has defined the
circumstances in which a statute of limitation is jurisdictional.
These cases uniformly recognize that a limitation period is not
jurisdictional “unless it governs a court’s adjudicatory
capacity, that is, its subject-matter or personal jurisdiction.”
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435
(2011). To have a jurisdictional effect, a statute of limitation
must “speak in jurisdictional terms,” that is, restrict “a court’s
power” to hear a claim. United States v. Kwai Fun Wong, 135
S. Ct. 1625, 1633 (2015) (quoting Arbaugh v. Y & H Corp., 546
U.S. 500, 515 (2006)). Unless the Congress has “clearly stated”
that it “imbued a procedural bar with jurisdictional
consequences,” the bar does not have them. Id. at 1632
(quoting Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153
(2013)) (internal quotation marks and alterations omitted).
Thus has the Court “made plain that most time bars are
nonjurisdictional.” Id.83
Of course, the Congress need not incant “magic words” in
order clearly to demonstrate its intent. Henderson, 562 U.S. at
436. We look for the Congress’s intent in “the text, context,
and relevant historical treatment of the provision at issue.”
Musacchio v. United States, 136 S. Ct. 709, 717 (2016)
(quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166
(2010) (internal quotation marks omitted)). Doing so shows
that § 1605A(b) is not a limit on the court’s jurisdiction to hear
an untimely FSIA claim.
We begin, as we must, with the text of § 1605A(b), which
we note does not appear to “speak in jurisdictional terms”:
An action may be brought or maintained under
this section . . . if commenced . . . [within] 10
years after April 24, 1996; or 10 years after the
date on which the cause of action arose.
Nothing in the section refers to the “court’s power” to hear a
case. Nothing in § 1605A(a) “conditions its jurisdictional grant
on compliance with [the] statute of limitations” in § 1605A(b).
Musacchio, 136 S. Ct. at 717 (quoting Reed Elsevier, 559 U.S.
at 165). Indeed, § 1605A(b) “is less ‘jurisdictional’ in tone”
than limitation periods held nonjurisdictional in prior cases.
See Auburn Reg’l Med. Ctr., 568 U.S. at 154 (comparing the
permissive term “may” in one statute with the mandatory term
“shall” in another but holding both were nonjurisdictional).
The plain text alone is enough to render the limitation period in
§ 1605A(b) nonjurisdictional.
Sudan nonetheless contends that the reference to “actions”
rather than “claims” imbues the provision with jurisdictional
import. For this proposition Sudan cites Spannaus v. U.S.
Department of Justice, 824 F.2d 52 (D.C. Cir. 1987), in which
84
we held a statute that similarly barred untimely “actions” was
jurisdictional. See 28 U.S.C. § 2401(a). Sudan argues that by
using the term “action” in § 1605A(b) the Congress made a
clear statement replicating the jurisdictional reach of the
similarly phrased statute at issue in Spannaus.
This analogy has several problems. First, as the plaintiffs
point out, Spannaus was decided nearly a decade before the
Supreme Court erected the presumption against jurisdictional
effect, see Carlisle v. United States, 517 U.S. 416, 434 (1996)
(Ginsburg, J. concurring) (making the first reference to a
presumption against jurisdictional effect), and the Congress
enacted § 1605A after that presumption had been fully
articulated, see Kontrick v. Ryan, 540 U.S. 443, 455 (2004)
(criticizing the “less than meticulous” use of the term
“jurisdictional” in earlier decisions). Therefore, Spannaus is
unpersuasive on the matter. Second, the plaintiffs correctly
note we did not rely upon the phrase “every civil action” in
Spannaus to hold the limitation period in § 2401(a)
jurisdictional. Rather, we relied upon longstanding precedent
establishing that Ҥ 2401(a) is a jurisdictional condition
attached to the government's waiver of sovereign immunity,
and as such must be strictly construed.” 824 F.2d at 55 (citing
United States v. Mottaz, 476 U.S. 834 (1986) and Soriano v.
United States, 352 U.S. 270, 276 (1957)); cf. John R. Sand &
Gravel Co. v. United States, 552 U.S. 130, 139 (2008) (holding
a statute of limitation as jurisdictional when “[b]asic principles
of stare decisis” required that outcome). In this case, precedent
does not help Sudan because no court has given § 1605A(b) “a
definitive earlier interpretation” that could displace the
presumption against jurisdictional reach. Id. at 137-38.
Further, Sudan’s invocation of the nostrum that identical
words in similar statutes demand an identical construction finds
little support in the most relevant precedents. See Wong, 135 S.
85
Ct. at 1629 (rejecting the argument that use of the phrase “shall
forever be barred” rendered a limitation period jurisdictional
despite the inclusion of the identical phrase in a jurisdictional
statute of limitation). Therefore, the use of the term “action” in
a provision held jurisdictional in Spannaus says little about
whether a similarly phrased statute also has jurisdictional
reach. Nor have courts attached jurisdictional significance to
the word “action” in other statutes. See, e.g., Reed Elsevier, 559
U.S. at 166 (holding nonjurisdictional 17 U.S.C. § 411(a),
which bars any “civil action” for infringement without prior
registration of the copyright); Hardin v. City Title & Escrow
Co., 797 F.2d 1037, 1040 (D.C. Cir. 1986) (stating that 15
U.S.C. § 15b, which bars “[a]ny [untimely] action to enforce
any cause of action,” is “a good example of a non-jurisdictional
time limitation”). Sudan presents no reason we should embrace
Spannaus yet ignore these other precedents as well as the
Supreme Court’s most recent guidance on statutory
interpretation. Hence, we find no support for Sudan’s textual
argument that § 1605A(b) is jurisdictional.
Sudan next argues from the structure of the statute in
which § 1605A(b) appears: Because the limitation period
follows immediately after the grant of jurisdiction in
§ 1605A(a), it takes on the jurisdictional nature of the prior
provision. Again, precedent suggests otherwise. As the
plaintiffs note, the Supreme Court has held the “separation” of
a time bar “from jurisdictional provisions” implies the
limitation period is not jurisdictional. Gonzalez v. Thaler, 132
S. Ct. 641, 651 (2012); cf. Blueport Co., LLC v. United States,
533 F.3d 1374, 1380 (Fed. Cir. 2008) (holding limits on patent
infringement suits against the Government are jurisdictional
because they appear in the same sentence as a general waiver
of sovereign immunity). The limitation period in § 1605A(b)
and the grant of jurisdiction in § 1605A(a) appear in two
different subsections of the terrorism exception, only one of
86
which speaks in jurisdictional terms. The remaining
subsections of § 1605A are plainly nonjurisdictional. See, e.g.,
28 U.S.C. §§ 1605A(c) (private right of action), 1605A(d)
(additional damages), 1605A(e) (use of special masters),
1605A(g) (property disposition). That the limitation period
follows immediately after the jurisdictional provisions of
§ 1605A(a) is of little import. See Gonzalez, 565 U.S. at 147(“Mere proximity will not turn a rule that speaks in
nonjurisdictional terms into a jurisdictional hurdle”). If
proximity alone were enough, then every subsection in a
section containing a jurisdictional provision would, by the
transitive property, also abut a jurisdictional subsection and
therefore be jurisdictional as well, an absurd proposition.
Auburn Reg’l Med. Ctr., 568 U.S. at 155 (“A requirement we
would otherwise classify as nonjurisdictional . . . does not
become jurisdictional simply because it is placed in a section
of a statute that also contains jurisdictional provisions”).
Sudan also argues the history of § 1605A supports reading
the time bar in § 1605A(b) as jurisdictional. Prior to the
enactment of the 2008 NDAA, the FSIA terrorism exception
under § 1605(a)(7) contained a similar time bar of ten years.
See 28 U.S.C. § 1605(f) (2006). Sudan now contends that
§ 1605 was “undisputedly a purely jurisdictional statute,”
rendering both the current and the former limitation periods
jurisdictional as well.
This argument mischaracterizes both old § 1605(f) and
new § 1605A. The time bar in the former terrorism exception
was in a separate subsection of the FSIA, § 1605(f), from the
grant of jurisdiction over claims against a state sponsor of
terrorism in § 1605(a)(7). Section § 1605 did have several
jurisdictional provisions, see §§ 1605(a)(1)-(7), (b), (d), but
each one expressly proclaimed its jurisdictional reach. See,
e.g., 28 U.S.C. §§ 1605(a) (“A foreign state shall not be
87
immune from the jurisdiction of courts of the United States or
of the States in any case” falling within one of the seven
enumerated exceptions). The other four subsections of § 1605
made no mention of jurisdiction. The difference is telling, but
understandable as these provisions – much like those in
§ 1605A – defined terms (§ 1605(e)), limited discovery
(§ 1605(g)), and governed the choice of law and the calculation
of damages (§ 1605(c)), among other things, none of which
could have jurisdictional effect. As in § 1605A, § 1605
demonstrates that when the Congress intends to make a
provision jurisdictional, it normally does so expressly. When
words of jurisdictional import are absent, so too, we presume,
is jurisdictional effect.
Sudan lastly argues that waivers of sovereign immunity
must be strictly construed. See Spannaus, 824 F.2d at 55. But
see Scarborough v. Principi, 541 U.S. 401, 421 (2004)
(“[L]imitations principles should generally apply to the
Government ‘in the same way that’ they apply to private
parties”) (quoting Franconia Assocs. v. United States, 536 U.S.
129, 145 (2002)). The Supreme Court has twice addressed this
very point and rejected it for time bars that conditioned waivers
of the U.S. Government’s sovereign immunity. Irwin v. Dep’t
of Veterans Affairs, 498 U.S. 89, 94-96 (1990); Wong, 135 S.
Ct. at 1636. Treating a time bar as nonjurisdictional, the Court
has said, “is likely to be a realistic assessment of legislative
intent” and “amounts to little, if any, broadening of the
congressional waiver” of sovereign immunity. Irwin, 498 U.S.
at 95. Therefore, Sudan’s argument that sovereignty gives
jurisdictional import to the limitation period in the FSIA
terrorism exception is unpersuasive.
In any event, Sudan misses the distinction between a
waiver of sovereign immunity and an exception to the statutory
grant of foreign sovereign immunity. The Congress “did not
88
waive [a foreign state’s] sovereign immunity in enacting [the
FSIA terrorism exception]” because “only the sovereign can
forswear the sovereign’s legal rights.” Simon, 529 F.3d at 1196.
Rather, “[i]n the terrorism exception the Congress qualified the
statutory grant of immunity to [foreign sovereigns],” which is
“itself ‘a matter of grace and comity.’” Id. (quoting Verlinden,
461 U.S. at 486). Because the FSIA exceptions are not waivers
of sovereign immunity, the rule of strict construction does not
apply.
Having reviewed the text, structure, or history of the FSIA
terrorism exception, we see “no authority suggesting the
Congress intended courts to read [§ 1605A(b)] any more
narrowly than its terms suggest.” Id. Sudan’s arguments to the
contrary fail. We therefore hold that the limitation period in
§ 1605A(b) is not jurisdictional. It follows that Sudan has
forfeited its affirmative defense to the Khaliq, Opati, and
Aliganga actions by failing to raise it in the district court. See
Musacchio, 136 S. Ct. at 717; Harris, 126 F.3d at 343. As a
consequence, we have no need to consider Sudan’s
interpretation of a “related action” under NDAA § 1083(c)(3).
V. Jurisdiction and Causes of Action for Claims of Third
Parties
Sudan next takes aim at claims brought under state and
federal law by the family members of those killed or injured in
the embassy bombings. First, Sudan contends § 1605A(a) does
not grant the court jurisdiction to hear a claim from a plaintiff
(or the legal representative of a plaintiff) who was not
physically injured by a terrorist attack. Second, even if
jurisdiction is proper, Sudan argues the federal cause of action
in § 1605A(c) supplies the exclusive remedy for a FSIA
claimant, precluding claims under state law. Finally, Sudan
insists a family member who was not present at the scene of the
89
embassy bombings cannot state a claim for intentional
infliction of emotional distress (IIED) under District of
Columbia law.
A. Jurisdiction
We turn first to Sudan’s jurisdictional argument, which we
are obliged to address notwithstanding Sudan’s default. The
plaintiffs in this case have brought two different types of claims
under various sources of law. First are the claims of those
physically injured by the embassy bombings or by the legal
representatives of those now deceased or incapacitated. Second
are the claims of family members of those physically injured or
killed by the bombings who seek damages for their emotional
distress. Sudan contends the FSIA extends jurisdiction only to
members of the first group and their legal representatives. The
claims of family members for emotional distress, it argues, are
outside the jurisdiction conferred upon the court.
Sudan’s argument turns upon the meaning of the phrase
“the claimant or the victim” in § 1605A(a)(2)(A)(ii). Section
1605A(a) gives the court jurisdiction and withdraws immunity
only when “the claimant or the victim” falls within one of four
categories: U.S. nationals, members of the armed forces, and
employees or contractors of the United States acting within the
scope of their employment. A separate subsection of the
terrorism exception provides a federal cause of action to the
same groups of plaintiffs and their legal representatives. 28
U.S.C. § 1605A(c).
Sudan contends that “the claimant” in
§ 1605A(a)(2)(A)(ii) refers only to the legal representative of a
victim of a terrorist attack. This would effectively align the
grant of jurisdiction with the federal cause of action under
§ 1605A(c). That is, under Sudan’s proffered interpretation, a
90
court would have jurisdiction only over claims brought by
persons who could invoke the federal cause of action in
§ 1605A(c). Applied to the case at hand, this might preclude
jurisdiction over a claim for emotional distress brought by a
relative of someone killed or injured by the embassy bombings
because a family member is arguably neither a victim of the
attack nor the legal representative of a victim.
Sudan’s argument has several problems. First and
foremost, Sudan’s interpretation is inconsistent with the plain
meaning and the structure of the statute, as is clear from the
differences between the grant of jurisdiction in § 1605A(a) and
the cause of action in § 1605A(c). Section 1605A(a)(2) grants
jurisdiction when “the claimant or the victim” is a member of
one of the four enumerated groups. In contrast, § 1605A(c)
authorizes a cause of action not only for those four groups but
also for the legal representative of a member of those groups.
If the Congress had intended § 1605A(a)(2) to mirror the scope
of § 1605A(c), then it would have used the same term – “legal
representative” – in both subsections (i.e., “the legal
representative or the victim”), as it did with the verbatim
enumeration of the four qualifying groups. That it did not
signals its intent to give the term “claimant” in § 1605A(a)(2)
a meaning different from and broader than “the legal
representative” in § 1605A(c). See Russello v. United States,
464 U.S. 16, 23 (1983).
What, then, does the FSIA mean by the terms “claimant”
and “legal representative”? The plain meaning of claimant, the
plaintiffs correctly note, is simply someone who brings a claim
for relief. Who can be a claimant is typically defined by the
substantive law under which a plaintiff states a claim. By
contrast, the term “legal representative” contemplates a far
narrower universe of persons based upon principles of agency
or a special relationship, such as marriage. See, e.g., Fed.
91
Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726 F.3d
62, 80 (2d Cir. 2013) (“In its broadest usage, the phrase ‘legal
representative’ may refer simply to ‘[o]ne who stands for or
acts on behalf of another’”). Federal and state procedural law,
not the substantive law under which a plaintiff states a claim,
typically defines who may serve as a legal representative in a
given suit. See FED. R. CIV. P. 17(b)(3); Gurley v. Lindsley, 459
F.2d 268, 279 (5th Cir. 1972) (applying Texas law in accord
with Rule 17(b)). Thus, a legal representative is a special type
of claimant who proceeds on behalf of an absent party with a
substantive legal right.
Sudan nonetheless offers three reasons we should
narrowly interpret “claimant” to mean no more than “legal
representative.” First, Sudan argues that interpreting
“claimant” to mean “legal representative” is necessary to
“harmonize[]” the scope of jurisdiction under § 1605A(a) with
the cause of action under § 1605A(c). If the terms had different
meanings, Sudan warns, then “certain plaintiffs [could]
establish jurisdiction under § 1605A(a)” but anomalously
could not “avail[] themselves of the private right of action in
§ 1605A(c).” Here Sudan is assuming a grant of jurisdiction
must be no broader than the causes of action that may be
brought under it. But that does not follow. Cf. FDIC v. Meyer,
510 U.S. 471, 484 (1994) (noting that “whether there has been
a waiver of sovereign immunity” and “whether the source of
substantive law” “provides an avenue for relief” are “two
‘analytically distinct’ inquiries”). The other exceptions to
sovereign immunity in the FSIA exemplify this distinction
because they grant the courts jurisdiction over claims against
foreign sovereigns but neither create nor withdraw substantive
causes of action for FSIA plaintiffs. See Helmerich & Payne,
137 S. Ct. at 1324 (“Indeed, cases in which the jurisdictional
inquiry does not overlap with the elements of a plaintiff’s
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claims have been the norm in cases arising under other
exceptions to the FSIA”).
Furthermore, even under the prior terrorism exception, the
Congress authorized a cause of action – in the Flatow
Amendment – with a narrower reach than the grant of
jurisdiction in § 1605(a)(7). See Leibovitch v. Islamic Republic
of Iran, 697 F.3d 561, 570-71 (7th Cir. 2012). That the Flatow
Amendment applied only to state officials, not foreign states,
took “nothing away from” the grant of jurisdiction under
§ 1605(a)(7) because the broader jurisdictional provision
operated independently of the narrower cause of action. See
Cicippio-Puleo, 353 F.3d at 1035-36. Accordingly, we
declined to “harmonize” the broad grant of jurisdiction in the
old terrorism exception with the narrower cause of action
provided by the Flatow Amendment because doing so would
have conflicted with the text of both provisions. Id. at 1032-33.
So too here. Again the Congress has authorized a narrower
cause of action, § 1605A(c), correlative to a broader
jurisdictional grant, § 1605A(a), and as before, we see no
reason to distort the plain meaning of either provision in order
to make them coextensive.
Second, Sudan contends a broad interpretation of
“claimant” would “render[] the term ‘victim’ superfluous.” Not
so; as the plaintiffs note, the use of both terms affords
jurisdiction when “either the claimant or the victim is a national
of the United States” or is within one of the other three groups
identified in the statute. La Reunion Aerienne v. Socialist
People’s Libyan Arab Jamahiriya, 533 F.3d 837, 844 (D.C.
Cir. 2008).
Third, Sudan argues that reading “claimant” to mean “one
who brings a claim” would “greatly expand[] the universe of
possible plaintiffs, contrary to Congressional intent.” The term
93
“claimant,” unlike the term “victim,” is indeed less bounded by
the underlying acts that give the courts jurisdiction: Only a
limited set of individuals could properly be considered victims
of the 1998 embassy bombings, whereas the term “claimant”
may appear to encompass a larger universe of possible
plaintiffs. That universe is actually quite limited, however. The
FSIA itself limits claimants to those seeking “money damages”
“for personal injury or death,” 28 U.S.C. § 1605A(a)(1). See La
Reunion Aerienne, 533 F.3d at 845 (allowing an insurer to
recover payments made to survivors and to estates of those
killed in an airline bombing because the insureds’ claims were
“personal injury claim[s] under traditional common-law
principles”) (internal quotation marks, emphasis, and citation
removed).
Substantive law also limits who is a proper claimant under
the FSIA. This is clearly the case with the federal cause of
action in the FSIA, which limits claimants to the four
enumerated groups and their legal representatives. So too with
substantive law outside the FSIA: We have held the common-
law tort of IIED limits recovery to the immediate family of a
victim who is physically injured or killed. See Bettis v. Islamic
Republic of Iran, 315 F.3d 325, 338 (D.C. Cir. 2003) (rejecting
claims for IIED brought by nieces and nephews of a U.S.
national taken hostage); RESTATEMENT (SECOND) OF TORTS
§ 46 (1965). Therefore, not every person who experiences
emotional distress from a major terrorist attack – a universe that
could be large indeed – can state a claim for IIED absent some
close relationship to a victim who was injured or killed.
Therefore, due to the limitations imposed upon potential
claimants both by the FSIA and by substantive law, we are not
persuaded by Sudan’s argument that the plain meaning of
“claimant” produces “absurd results” or is “contrary to
Congressional intent.”
94
In sum, by its plain text, the FSIA terrorism exception
grants a court jurisdiction to hear a claim brought by a third-
party claimant who is not the legal representative of a victim
physically injured by a terrorist attack. Who in particular may
bring a claim against a foreign sovereign is a question of
substantive law, wholly separate from the question of our
jurisdiction.
B. Causes of Action
Sudan next contends the foreign family members cannot
state a claim under any source of substantive law. Starting from
first principles, we reiterate that the question whether a statute
withdraws sovereign immunity is “analytically distinct” from
whether a plaintiff has a cause of action. See Meyer, 510 U.S.
at 484; United States v. Mitchell, 463 U.S. 206, 218 (1983). As
the district court correctly recognized, we have never required
the Congress, in order to effectuate a grant of jurisdiction,
expressly to “define the substantive law that applies.” Owens
V, 174 F. Supp. 3d at 286. Indeed, before enactment of the
FSIA, the courts – absent objection by the State Department –
had jurisdiction to hear suits against a foreign government
under state and federal law even though no statute provided
rules of decision for such cases. See, e.g., Victory Transp. Inc.
v. Comisaria Gen. de Abastecimientos y Transportes, 336 F.2d
354 (2d Cir. 1964) (enforcing a state-law arbitration agreement
against a foreign sovereign via the Federal Arbitration Act).
Hence, unless the enactment of the FSIA or of § 1605A
somehow changed this situation, a plaintiff proceeding under
the FSIA may rely upon alternative sources of substantive law,
including state law.
Sudan would have us find an abrogation of a plaintiff’s
access to state law in § 1606 of the FSIA, which provides in
relevant part:
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As to any claim for relief with respect to which
a foreign state is not entitled to immunity under
section 1605 or 1607 of this chapter, the foreign
state shall be liable in the same manner and to
the same extent as a private individual under
like circumstances; but a foreign state except for
an agency or instrumentality thereof shall not be
liable for punitive damages.
When the original FSIA terrorism exception was in force,
§ 1606 governed what a claimant could recover from a foreign
sovereign. This was because the original exception was
codified as a subsection of § 1605, to which § 1606 expressly
applied. After we declined in Cicippio-Puleo to infer a federal
cause of action against a foreign sovereign arising from
§ 1605(a)(7) or from the Flatow Amendment, a plaintiff using
the old terrorism exception could press a claim under state law,
as qualified by § 1606, in the same manner as any other FSIA
plaintiff. When the Congress passed the 2008 NDAA, it
repealed old § 1605(a)(7) and codified the current terrorism
exception in new § 1605A. As a result, § 1606, which
references only § 1605 and § 1607, does not apply to the
current FSIA terrorism exception. This, Sudan contends,
demonstrates the Congress’s intent to foreclose a plaintiff from
relying upon state law when suing under § 1605A. Essentially,
Sudan suggests the Congress struck a deal when it recodified
the new terrorism exception in § 1605A: A plaintiff could sue
under the new federal cause of action but could no longer press
a state-law claim against a foreign sovereign via the pass-
through process endorsed by Cicippio-Puleo. Therefore,
according to Sudan, plaintiffs who are ineligible for the
purportedly exclusive remedy of the federal cause of action –
including the foreign family members in this case – were left
without a “gateway” to any substantive law under which to
96
state a claim. Contra Leibovitch, 697 F.3d at 572 (“Although
§ 1605A created a new cause of action, it did not displace a
claimant's ability to pursue claims under applicable state or
foreign law upon the waiver of sovereign immunity” (quoting
Estate of Doe v. Islamic Republic of Iran, 808 F. Supp. 2d 1,
20 (D.D.C. 2011)).
One might wonder, as the plaintiffs do, why we need to
reach this nonjurisdictional argument, which Sudan forfeited
by failing to appear in the district court. See Practical
Concepts, 811 F.2d at 1547. We do so because we have
discretion to reach the question, see Acree, 370 F.3d at 58, and
this case presents sound reasons for doing so. The question
presented is “purely one of law important in the administration
of federal justice” because most cases invoking the terrorism
exception are filed in this circuit, see 28 U.S.C. § 1391(f)(4),
and “resolution of the issue does not depend on any additional
facts not considered by the district court.” Acree, 370 F.3d at
58 (quoting Roosevelt v. E.I. Du Pont de Nemours & Co., 958
F.2d 416, 419 n.5 (D.C. Cir. 1992)). Review is particularly
appropriate here because the foreign family member plaintiffs
have secured billions in damages against a foreign sovereign.
See id. (finding extraordinary circumstances from a “nearly-
billion dollar default judgment against a foreign government”).
We therefore exercise our discretion to consider Sudan’s
nonjurisdictional argument that the pass-through approach
recognized in Cicippio-Puleo did not survive enactment of
§ 1605A.
In our view, Sudan assigns undue significance to § 1606.
On its face, that section does not authorize a plaintiff to resort
to state (or federal or foreign) law in a suit against a foreign
sovereign. Nor does it create a substantive body of law for such
an action. See First Nat’l City Bank, 462 U.S. at 620-21.
Rather, as the plaintiffs argue and the district court recognized,
97
§ 1606 simply limits the liability of a foreign state to “the same
manner and to the same extent as a private individual under like
circumstances” regardless of what substantive law is being
applied. The exclusion of punitive damages from the pass-
through approach reinforces our confidence that § 1606
operates only to limit, not to create, the liability of a foreign
state. As the Supreme Court has said, the Congress made clear
that the FSIA, including § 1606, was not “intended to affect the
substantive law of liability” applicable to a foreign sovereign.
Id. at 620 (quoting H.R. REP. NO. 94-1487, at 12 (1976)). In
keeping with this straightforward reading, we have recognized
that § 1606 does not authorize a court to craft federal common
law, but rather requires it to apply state law to suits under the
FSIA. See Bettis, 315 F.3d at 333 (noting that § 1606 “instructs
federal judges to find the relevant law, not to make it”).
One might wonder, then, why the Congress moved the
FSIA terrorism exception from § 1605, where it was covered
by § 1606, to § 1605A, where it is not. Contrary to Sudan’s
convoluted argument about an implied withdrawal of remedies
under state law, the new exception itself provides a ready
answer. If the Congress had reenacted the new terrorism
exception in the same section as the old one, then it would have
created an irreconcilable conflict between the new federal
cause of action, which allows the award of punitive damages,
and § 1606, which prohibits them. In order to avoid this
conflict, a court would have either to disregard a central
element of the federal cause of action or to hold the new
exception implicitly repealed § 1606 as applied to state
sponsors of terror. See Morton v. Mancari, 417 U.S. 535, 549
(1974) (noting the “cardinal rule . . . that repeals by implication
are not favored”) (internal quotation marks removed).
Avoiding a conflict between § 1605 and § 1606, rather than
Sudan’s strained “gateway” argument, more likely explains the
98
Congress’s purpose in moving the terrorism exception out of
§ 1605.
Of course, in most cases brought under the new terrorism
exception, the plaintiff need not rely upon state tort law. This
does not, however, imply that the Congress intended to
foreclose access to state law by those who need it, as do foreign
family members. U.S. nationals will continue to sue under
§ 1605A(c) and benefit from its consistent application. But the
pass-through approach remains viable to effectuate the intent
of the Congress to secure recoveries for other plaintiffs harmed
by a terrorist attack.
C. Intentional Infliction of Emotional Distress
We turn now to Sudan’s third and final argument
respecting family members who have brought state-law claims
for IIED. The district court held that District of Columbia law
controls these actions, Owens IV, 826 F. Supp. 2d at 157, which
Sudan does not contest. Judgments under D.C. law in favor of
the foreign family member plaintiffs total more than $7 billion.
Sudan contends these awards are invalid because D.C. tort law
requires a plaintiff to be present at the scene of a defendant’s
outrageous and extreme conduct in order to recover for IIED.
In particular, Sudan points to Pitt v. District of Columbia, in
which this court applied the “presence” requirement to bar a
claim for IIED under D.C. law. 491 F.3d 494, 507 (D.C. Cir.
2007).
That case does not extend as far as Sudan contends. In Pitt,
we noted “[t]he District of Columbia has adopted the standard
for intentional infliction of emotional distress from the
Restatement (Second) of Torts.” Id. (citing Sere v. Grp.
Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982). As Sudan
99
points out, the Second Restatement contains a presence
requirement:
Where such [extreme and outrageous] 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.”
The Restatement, however, also provides that “there may
. . . be other circumstances under which the actor may be
subject to liability for the intentional or reckless infliction of
emotional distress.” RESTATEMENT (SECOND) OF TORTS § 46
(1965) (caveat). A comment to the Restatement expressly
applies this caveat to the presence requirement, “leav[ing] open
the possibility of situations in which presence at the time may
not be required.” Id. cmt. l. 6
Although we did apply the presence requirement in Pitt,
the factual situation there was quite different than in the present
case. The plaintiff in Pitt alleged emotional distress from the
“filing of a false and misleading affidavit and possible evidence
tampering.” 491 F.3d at 507. Allowing a claim for IIED
6
Several district courts have applied this exception to claims for
emotional distress under the federal cause of action in the new FSIA
terrorism exception. See, e.g., Estate of Heiser v. Islamic Republic of
Iran, 659 F. Supp. 2d 20, 26-27 (D.D.C. 2009) (“All acts of terrorism
are by their very definition extreme and outrageous and intended to
cause the highest degree of emotional distress, literally, terror, in
their targeted audience”) (quoting Stethem v. Islamic Republic of
Iran, 201 F. Supp. 2d 78, 89 (D.D.C. 2002)).
100
stemming from a procedural irregularity in law enforcement,
we reasoned, would “substantially expand[] the scope of the
third-party IIED tort under District of Columbia law,” id.,without any principled limitation on future actions. In contrast,
a massive terrorist attack resulting in widespread casualties and
worldwide attention would appear so exceptional that
recognizing an appropriate plaintiff’s claim for IIED would not
broaden the scope of liability to innumerable similar incidents.
Therefore, nothing in Pitt suggests D.C. law would apply the
presence requirement to an act of international terrorism.
At the same time, we proceed with caution when applying
D.C. tort law to this novel situation. The District of Columbia
has yet to decide whether it would apply the presence
requirement or the exception in the Restatement to an act of
international terrorism. Neither has Maryland, the common law
of which is authoritative when D.C. law is silent. Clark v.
Route, 951 A.2d 757, 763 n.5 (D.C. 2008). Although there are
convincing reasons to do so, there are also good reasons to
draw back. Some of the first cases applying the caveat in the
Restatement dealt with hostage taking. See, e.g., Stethem, 201
F. Supp. 2d at 89-91; Sutherland v. Islamic Republic of Iran,
151 F. Supp. 2d 27, 50 (D.D.C. 2001). Hostage takers often
target the family members of the victim, demanding they pay a
ransom for the release of the hostage. The emotional distress of
the family member is intended to advance the hostage taker’s
aims. Therefore, hostage taking seems to be the type of case in
which the defendant’s extreme and outrageous conduct is
“directed at a third person” but is intended also to cause severe
emotional distress to the absent plaintiff. See DAN B. DOBBS,
THE LAW OF TORTS § 307, at 384 (2000) (“If the defendants’
conduct is sufficiently outrageous and intended to inflict severe
emotional harm upon a person which [sic] is not present, no
essential reason of logic or policy prevents liability”). If so, the
plaintiff’s contemporaneous physical presence is not required
101
because the plaintiff is the direct target of the tortious conduct,
rather than a mere bystander, as the latest version of the
Restatement recognizes. See RESTATEMENT (THIRD) OF TORTS:
PHYS. & EMOT. HARM § 46 (2012) (cmt. m) (“If an actor harms
someone for the purpose of inflicting mental distress on
another person, the [presence] limitations . . . do not apply”).
In contrast, a terrorist bombing is not so precisely targeted
at certain absent individuals. Rather than leveraging distress
inflicted upon specific third parties to achieve their aims,
terrorist bombings typically target the public at large in order
to create a general environment of fear and insecurity.
Widespread distress, rather than distress “directed at” or
confined to particular persons, provides a considerably weaker
basis for IIED liability. Indeed, the Second Restatement would
preclude an individual’s recovery for an event causing
widespread emotional distress, absent some unique,
foreseeable, and intended harm to the plaintiff. RESTATEMENT
(SECOND) OF TORTS § 46 cmt. l. For this reason too, the drafters
of the Third Restatement of Torts have criticized several
district court decisions for abandoning the presence
requirement in FSIA terrorism cases. See RESTATEMENT
(THIRD) OF TORTS: PHYS. & EMOT. HARM § 46 (2012)
reporter’s note cmt. m (criticizing the “questionable
determination that the terrorists acts were directed not only to
the victims of the attack but also at their family members”).
Although we have not decided the matter, we too have
expressed skepticism that the sensational nature of a terrorist
attack warrants an exception to the limitations of IIED in the
Restatement. See Bettis, 315 F.3d at 334 (“If any person that
Iran hoped to distress . . . could recover under section 46(1) as
a direct victim of Iran's conduct, virtually anyone claiming he
or she was affected could recover”).
102
We believe a court may reasonably characterize a terrorist
bombing as falling either within the caveat in the Second
Restatement or beyond the scope of a sovereign’s liability to
third parties. The plaintiffs once again urge us not to reach this
nonjurisdictional question forfeited by Sudan’s default, but as
with the availability of state law claims, we see sound reasons
for exercising our discretion to consider the matter. See Acree,
370 F.3d at 58. Billions of dollars have been awarded to foreign
family members as damages for IIED. Furthermore, how to
apply the Restatement to terrorist bombings is a question,
unfortunately, almost certain to recur in this Circuit. Finally,
this is a pure question of law that “does not depend on any
additional facts not considered by the district court,” Roosevelt,
958 F.2d at 419 & n.5, and potentially may bear upon sensitive
matters of international relations. Cf. Acree, 370 F.3d at 58.
The situation therefore presents “exceptional circumstances”
sufficient to overcome our ordinary reluctance to hear
nonjurisdictional arguments not raised before the district court.
Id.That said, the choice is not ours to make. District of
Columbia law controls the scope of IIED liability, and the D.C.
Court of Appeals has yet to render a decision on the matter.
Therefore, we shall certify the question to that court pursuant
to D.C. Code Ann. § 11-723. Whether to certify a question
“rests in the sound discretion of the federal court.” Lehman
Bros. v. Schein, 416 U.S. 386, 390-91 (1974). “The most
important consideration guiding the exercise of this discretion
. . . is whether the reviewing court finds itself genuinely
uncertain about a question of state law that is vital to a correct
disposition of the case before it.” Tidler v. Eli Lilly & Co., 851
F.2d 418, 426 (D.C. Cir. 1988).
This case presents such a question. We are genuinely
uncertain whether the D.C. Court of Appeals would apply the
103
presence requirement in the Second Restatement of Torts to
preclude recovery for IIED by family members absent from the
scene of a terrorist bombing. Other states have reached
different conclusions on this question. See Peterson, 515 F.
Supp. 2d at 43-44 & n.19 (identifying Florida, California, and
Vermont as states that apply the presence requirement and
Louisiana, and Pennsylvania as states that do not).
Furthermore, the question is one of significant public
interest in the District of Columbia. See Eli Lilly & Co. v. Home
Ins. Co., 764 F.2d 876, 884 (D.C. Cir. 1985). Because the great
majority of claims under the FSIA terrorist exception are
brought in the federal district court in D.C. pursuant to the
FSIA venue provision in 28 U.S.C. 1391(f)(4), this question of
D.C. tort law will likely arise in future cases before our district
court. And the District, as the home of thousands of
government employees, military service members, and
contractors, and as itself a potential target of terrorist attacks,
has a substantial interest in determining who may recover for
the emotional distress caused by a terrorist attack.
We therefore certify the following question to the D.C.
Court of Appeals:
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?
VI. Punitive Damages
Having affirmed that the district court properly asserted
jurisdiction over the plaintiffs’ claims and held Sudan liable for
their injuries, we now review the amount in damages it
104
awarded to the plaintiffs. The court awarded $10.2 billion in
damages, including more than $4.3 billion in punitive damages
under both state and federal law. See, e.g., Opati, 60 F. Supp.
3d at 81-82. In post-judgment motions under Rule 60(b)(6),
Sudan asked the district court to vacate the awards of punitive
damages. The court declined, reasoning that any
nonjurisdictional legal error in assessing punitive damages
against Sudan did not present an “extraordinary circumstance”
that would justify vacatur. Owens V, 174 F. Supp. 3d at 288;
see Gonzalez v. Crosby, 545 U.S. 524, 536 (2005) (“[R]elief
under Rule 60(b)(6) . . . requires a showing of ‘extraordinary
circumstances’”).
Sudan’s renewed request to vacate these awards is now
before us both on appeal from the denial of Sudan’s Rule 60(b)
motions and on direct appeal from the final judgments. Sudan
principally contends the FSIA terrorism exception does not
retroactively authorize the imposition of punitive damages
against a sovereign for conduct occurring before the passage of
§ 1605A. As explained below, we agree. But before reaching
the merits, we first explain why we are addressing the matter
despite Sudan’s default in the district court.
A. Whether to Review the Awards of Punitive Damages
The plaintiffs contend, and the district court agreed, we
need not consider Sudan’s argument against the awards of
punitive damages because it forfeited this nonjurisdictional
challenge by failing to appear in the district court. While this is
true, see Practical Concepts, 811 F.2d at 1547, there are sound
reasons to exercise our discretion to hear Sudan’s argument,
whether under Rule 60(b) or on direct appeal.
First, Supreme Court precedent generally favors more
searching appellate review of punitive damages than of other
105
nonjurisdictional matters. See Pac. Mut. Life Ins. v. Haslip, 499
U.S. 1, 18 (1991) (warning against “unlimited judicial
discretion” in fixing punitive damages). Heightened scrutiny is
appropriate because punitive damages are in the nature of
criminal punishment. Id. at 19. Accordingly, the Court has
closely reviewed the size of punitive damage awards relative to
compensatory damages, State Farm Mut. Auto. Ins. v.
Campbell, 538 U.S. 408, 426 (2003), the availability of
punitive damages for conduct occurring outside a court’s
territorial jurisdiction, BMW of N. Am., Inc. v. Gore, 517 U.S.
559, 572 (1996), and the factors a court may consider in
imposing punitive damages, Haslip, 499 U.S. at 21-22. In
particular, the Court has emphasized the importance of judicial
review to ensure awards of punitive damages comport with the
Constitution. Honda Motor Co. v. Oberg, 512 U.S. 415, 432
(1994). Consistent with these concerns, the scope of appellate
review for a timely challenge to an award of punitive damages
is broad. See Cooper Indus., Inc. v. Leatherman Tool Grp., Inc.,
532 U.S. 424, 436 (2001) (reviewing de novo constitutional
challenges to punitive damages). We think the same concerns
call for a similarly exacting standard for review of an untimely
challenge to an award of punitive damages. Our view is
reinforced by the Court’s warning that the “[r]etroactive
imposition of punitive damages would raise a serious
constitutional question.” Landgraf v. USI Film Prods., 511
U.S. 244, 281 (1994). 7
7
These circumstances distinguish the review of retroactive punitive
damages from the review of Sudan’s forfeited limitations defense.
See Musacchio, 136 S. Ct. at 717 (“[A] limitations bar . . . is a
defense that becomes part of a case only if the defendant presses it in
the district court”); Day, 547 U.S. at 202 (“Ordinarily in civil
litigation, a statutory time limitation is forfeited if not raised in a
defendant’s answer or in an amendment thereto”).
106
In order to avoid possible constitutional infirmities, other
Circuits too have reviewed denials of Rule 60(b)(6) motions to
vacate punitive damages awarded in default judgments. See
Watkins v. Lundell, 169 F.3d 540, 545 (8th Cir. 1999); Merrill
Lynch Mortg. Corp. v. Narayan, 908 F.2d 246, 253 (7th Cir.
1990). Although review of punitive damages entered upon
default is not always warranted, we think the circumstances of
this case merit appellate review. Of particular note are the size
of the awards (totaling $4.3 billion), the presentation of a novel
question of constitutional law (retroactivity), and the potential
effect on U.S. diplomacy and foreign relations. We believe
these factors present the “extraordinary circumstances” needed
for review under Rule 60(b)(6). 8
This issue also comes before the court on direct appeal
from the default judgments. As previously mentioned, we may
consider nonjurisdictional questions not raised by the parties
on direct appeal in “exceptional circumstances.” Acree, 370
F.3d at 58. Our discretion is properly exercised over pure
questions of law – such as the retroactivity of punitive damages
8
The circumstances of this case also distinguish it from Bankers Life
& Casualty Co. v. Crenshaw, 486 U.S. 71 (1988) in which the
Supreme Court declined to hear a challenge to a state court’s award
of punitive damages that the appellant had not raised in the state
court. Here, although Sudan did not object to punitive damages
before the entry of final judgment, it raised the matter in its post-trial
motions for vacatur. Unlike in Crenshaw, the district court
considered these untimely objections and considered their merits
before denying vacatur. For this reason, we have a “properly
developed record on appeal” and “a reasoned opinion on the merits”
with which to evaluate this pure question of law. Id. at 79-80. Also
unlike Crenshaw, this case does not involve considerations of
“comity to the States” as it arises under federal law, id. at 79, and any
concern about relations between nations cuts in favor of, rather than
against, exercising discretionary review.
107
– that need no further factual development. Roosevelt, 958 F.2d
at 419 & n. 5. Direct review of forfeited arguments is also
warranted for questions that bear upon sensitive matters of
international relations. Acree, 370 F.3d at 58 (finding
exceptional circumstances from a “nearly-billion dollar default
judgment against a foreign government”). Furthermore,
because most cases invoking the FSIA exception for terrorism
are brought in this district, our decision on retroactivity will
provide useful guidance to the district court. Compare Owens
V, 174 F. Supp. 3d at 291 (doubting whether punitive damages
apply retroactively but declining to vacate award) with
Flanagan v. Islamic Republic of Iran, 190 F. Supp. 3d 138, 182
(D.D.C. 2016) (vacating punitive damages despite the
defendant’s default) and Kumar v. Republic of Sudan, No.
2:10-cv-171, at 39 n.17 (E.D. Va. Oct. 25, 2016) (approving
retroactive assessment of punitive damages); see also
Leatherman, 532 U.S. at 436 (noting that “[i]ndependent
review [of punitive damages] is . . . necessary if appellate
courts are to maintain control of, and to clarify, the legal
principles”). Given the size of the awards, the strength of
Sudan’s contentions, and the likelihood of this question
recurring, we believe reviewing the award of punitive damages
both promotes “the interests of justice” and “advance[s]
efficient judicial administration.” City of Newport, 453 U.S. at
257. We therefore exercise our discretion to consider Sudan’s
belated objections.
B. Retroactivity of Punitive Damages Under § 1605A(c)
In challenging the punitive damage awards, Sudan raises
the “presumption against retroactive legislation” explicated in
Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994).
Courts “have declined to give retroactive effect to statutes
burdening private rights unless Congress had made clear its
intent.” Id. at 270. This presumption avoids “the unfairness of
108
imposing new burdens on persons after the fact,” absent a clear
signal of congressional intent to do so. Id. The Court in
Landgraf noted the retroactive authorization of punitive
damages, in particular, “would raise a serious constitutional
question.” Id. at 281.
An analysis of retroactivity entails two steps. First, the
court must determine “whether Congress has expressly
prescribed the statute’s proper reach.” Id. at 280. If the
Congress has clearly spoken, then “there is no need to resort to
judicial default rules,” and the court must apply the statute as
written. Id. When “the statute contains no such express
command,” the court must then evaluate whether the
legislation “operate[s] retroactively,” as it does if it “would
impair rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new duties with
respect to transactions already completed.” Id. If the statute
operates retroactively but lacks a clear statement of
congressional intent to give it retroactive effect, then the
Landgraf presumption controls and the court will not apply the
statute to pre-enactment conduct. Sudan argues both that the
new FSIA terrorism exception does not contain a clear
statement of retroactive effect and that it operates retroactively.
1. Section 1605A operates retroactively
As for the latter point, it is obvious that the imposition of
punitive damages under the new federal cause of action in
§ 1605A(c) operates retroactively because it increases Sudan’s
liability for past conduct. Under § 1605(a)(7), the predecessor
to the current terrorism exception, and the pass-through
approach recognized in Cicippio-Puleo, § 1606 expressly
barred courts from awarding punitive damages against a
foreign sovereign. The 2008 NDAA plainly applies the new
cause of action in § 1605A(c) to the pre-enactment conduct of
109
a foreign sovereign. Further, recall that, pursuant to NDAA
§ 1083(c), a plaintiff may convert a pending, prior action under
§ 1605(a)(7) into a new action under § 1605A(c) or file a new
suit arising from the same act or incident as an action “related”
to an original suit timely filed under § 1605(a)(7). In both
cases, the new actions under § 1605A(c) necessarily are based
upon the sovereign defendant’s conduct before enactment of
§ 1605A.
The plaintiffs dispute this, relying upon Republic of
Austria v. Altmann, 541 U.S. 677 (2004), in which the Supreme
Court held the jurisdictional provisions of the FSIA apply to
conduct occurring prior to its enactment notwithstanding the
absence of a clear statement to that effect in the statute. Id. at
692-96, 700. That jurisdiction under the FSIA applies
retroactively, however, has no bearing upon the question
whether the authorization of punitive damages does as well.
Unlike the grant of jurisdiction held retroactive in
Altmann, the authorization of punitive damages “adheres to the
cause of action” under § 1605A(c), making it “essentially
substantive” and thereby triggering retroactive operation. Id. at
695 n.15; cf. Landgraf, 511 U.S. at 274 (“Application of a new
jurisdictional rule usually takes away no substantive right,”
causing it not to operate retroactively) (internal quotation
marks omitted). Furthermore, while the original FSIA codified
only the preexisting “restrictive theory” of foreign sovereign
immunity, leaving the scope of a sovereign’s potential liability
unchanged, see Altmann, 541 U.S. at 694, the new terrorism
exception authorizes a quantum of liability – punitive damages
– to which foreign sovereigns were previously immune.
Having failed to distinguish the FSIA terrorism exception
from the Supreme Court’s core concerns in Landgraf, the
plaintiffs advance a policy argument transplanted from
110
Altmann. There the Court explained the “aim of the
presumption [against retroactivity] is to avoid unnecessary post
hoc changes to legal rules on which parties relied in shaping
their primary conduct.” 541 U.S. at 696. In contrast, the
plaintiffs urge “the principal purpose of foreign sovereign
immunity . . . reflects current political realities and
relationships, and aims to give foreign states and their
instrumentalities some present ‘protection from the
inconvenience of suit as a gesture of comity.’” Id. (quoting
Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003)).
Because the Congress was motivated by these “sui generis”
concerns of comity in initially passing the FSIA, id., the
plaintiffs contend the presumption in Landgraf should not
apply to a subsequent FSIA amendment, even if it appears to
operate retroactively.
That argument misses the central point of authorizing
punitive damages against a state sponsor of terrorism, viz., to
deter terrorism. By its nature, deterrence attempts to influence
foreign sovereigns in “shaping their primary conduct.” Id. And
when the law affects a defendant’s past actions, “[e]lementary
considerations of fairness dictate that individuals should have
an opportunity to know what the law is and to conform their
conduct accordingly.” Landgraf, 511 U.S. at 265.
This principle applies equally to state sponsors of
terrorism. As the Supreme Court has said, “[e]ven when the
conduct in question is morally reprehensible or illegal, a degree
of unfairness is inherent whenever the law imposes additional
burdens based on conduct that occurred in the past.” Id. at 282
n.35. Therefore, without a clear statement of retroactivity,
courts have properly declined to apply statutes authorizing an
award of punitive damages, even for outrageous conduct. See,
e.g., Ditullio v. Boehm, 662 F.3d 1091, 1100 (9th Cir. 2011)
(holding that punitive damages under the Trafficking Victims
111
Protection Act are unavailable to punish child sex trafficking
that occurred before enactment); Gross v. Weber, 186 F.3d
1089, 1091 (8th Cir. 1999) (holding the same for the Violence
Against Women Act as applied to pre-enactment sexual abuse).
Hence, unlike the grant of jurisdiction in Altmann, the
authorization of punitive damages in § 1605A(c) cannot be
dismissed as a reflection of “current political realities and
relationships” but rather goes to the heart of the concern in
Landgraf about retroactively penalizing past conduct.
2. Clear statement of retroactive effect
Having concluded that § 1605A(c) operates retroactively,
the next question is whether the Congress has made a clear
statement authorizing punitive damages for past conduct. We
will find that authorization only if the statute is “so clear that it
could sustain only one interpretation.” See Lindh v. Murphy,
521 U.S. 320, 328 n.4 (1997). With this in mind, we agree with
the district court that the FSIA contains no such statement.
Owens V, 174 F. Supp. 3d at 289.
As a starting point, we look for a clear statement in
§ 1605A(c), which provides that a designated state sponsor of
terrorism:
shall be liable . . . for personal injury or death
caused by acts described in subsection (a) (1) of
that foreign state, or of an official, employee, or
agent of that foreign state, for which the courts
of the United States may maintain jurisdiction
under this section for money damages. In any
such action, damages may include economic
damages, solatium, pain and suffering, and
punitive damages. In any such action, a foreign
112
state shall be vicariously liable for the acts of its
officials, employees, or agents.
On its face, nothing in the text of § 1605A(c) speaks to
whether punitive damages are available under the federal cause
of action for pre-enactment conduct. Nor does precedent
provide support for retroactivity. Although Altmann held the
grant of jurisdiction in § 1605(a) applies retroactively (despite
lack of a clear statement to that effect), the authorization of
punitive damages under the current terrorism exception lies in
the cause of action under § 1605A(c), not in the grant of
jurisdiction under § 1605A(a).
The plaintiffs contend that § 1083(c) of the 2008 NDAA,
when combined with the authorization of punitive damages in
§ 1605A(c), provides a clear statement of retroactive effect. As
we have seen, supra part IV, both a converted prior action
under § 1083(c)(2) and a related action under § 1083(c)(3)
necessarily arise out of conduct that occurred before the
enactment of the 2008 NDAA, and both provisions allow a
plaintiff to proceed under the federal cause of action in
§ 1605A(c), which authorizes punitive damages. Accordingly,
the plaintiffs contend, both § 1083(c)(2) and (c)(3), when read
in conjunction with § 1605A(c), clearly allow a court to award
punitive damages under the federal cause of action for pre-
enactment conduct.
This argument takes one too many a logical leap. Yes, by
allowing a plaintiff to convert an action brought under
§ 1605(a)(7), § 1083(c)(2) clearly authorizes the federal cause
of action to apply retroactively. This, however, does not mean
that § 1083(c) authorizes the punitive damages in § 1605A(c)
to apply retroactively as well. Cf. Roeder v. Islamic Republic
of Iran, 646 F.3d 56, 61-62 (D.C. Cir. 2011) (finding no clear
statement that § 1083(c)(3) abrogated the Algiers Accords
113
simply by allowing plaintiffs to bring actions under § 1605A
related to those formerly dismissed by reason of the Accords).
Instead, § 1083(c) operates as a conduit for a plaintiff to access
the cause of action under § 1605A(c). If punitive damages
under § 1605A(c) were not available retroactively to any
plaintiff (including those who did not make use of § 1083(c)),
then nothing in § 1083(c) would change that. Inversely, if
§ 1083(c) did not exist, then one plaintiff’s inability to convert
his pending case or to bring a related action under § 1083(c)
would not detract from the retroactive availability of punitive
damages for another plaintiff if such relief were clearly
authorized by the Congress. At most, Sudan has identified
§ 1083(c) as a plausible mechanism through which the
Congress could have authorized punitive damages for past
conduct. But Landgraf demands more, and no clear statement
emerges from the union of § 1083(c) and § 1605A(c).
There being no clear textual command, the plaintiffs urge
that the purpose of § 1083(c) supplies the necessary clear
statement of congressional intent. An argument based solely
upon the purpose of a statute can hardly supply a “clear
statement” of any sort. See Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204, 208 (1988) (“congressional enactments and
administrative rules will not be construed to have retroactive
effect unless their language requires this result”). Because an
expansion of punitive damages would operate retroactively by
“increas[ing] [Sudan’s] liability for past conduct,” the
presumption in Landgraf applies and bars an award of punitive
damages for the embassy bombings, which occurred before the
enactment of the 2008 NDAA. Therefore, we vacate the award
of punitive damages to plaintiffs proceeding under the federal
cause of action.
114
C. Retroactivity of Punitive Damages Under State Law
The same principle applies to the awards of punitive
damages to plaintiffs proceeding under state law. Sudan makes
two arguments against the availability of punitive damages for
them. Sudan first contends that § 1605A(c) provides the sole
source for seeking punitive damages against a foreign
sovereign. Sudan rests this view upon § 1606 of the FSIA,
which precludes punitive damages against a sovereign
defendant. As we have recognized, supra p. 95, § 1606, by its
terms, applies only to claims brought under § 1605 and § 1607
of the FSIA. Owens V, 174 F.3d at 290. Section 1606 therefore
has no bearing upon state law claims brought under the
jurisdictional grant in § 1605A.
If this were the end of the analysis, however, a puzzling
outcome would arise from our holding that punitive damages
are not available retroactively to plaintiffs proceeding under the
federal cause of action in § 1605A(c). As we have said, in
creating a federal cause of action, the Congress sought to end
the inconsistencies in the “patchwork” pass-through approach
of Cicippio-Puleo. See Leibovitch, 697 F.3d at 567. Allowing
punitive damages for pre-enactment conduct under state but not
federal law would frustrate this intent: Plaintiffs otherwise
eligible for the federal cause of action, for which punitive
damages are unavailable, would instead press state law claims
for punitive damages, which would effectively perpetuate the
inconsistent outcomes based upon differences in state law that
the Congress sought to end by passing § 1605A.
As it happens, the retroactive authorization of punitive
damages under state law fails for the same reason it does under
the federal cause of action: The authorization of § 1605A, read
together with § 1606, lacks a clear statement of retroactive
effect. Without the Landgraf presumption, the enactment of
115
§ 1605A would have lifted the restriction on punitive damages
in § 1606 from state law claims. If the express authorization of
punitive damages under § 1605A(c) lacks a clear statement of
retroactive effect, then the implicit, backdoor lifting of the
prohibition against punitive damages in § 1606 for state law
claims fares no better. Cf. Landgraf, 511 U.S. at 259-60(finding that cross-references between several sections of the
Civil Rights Act did not impliedly make a clear statement of
retroactive effect). As a result, a plaintiff proceeding under
either state or federal law cannot recover punitive damages for
conduct occurring prior to the enactment of § 1605A.
Accordingly we vacate all the awards of punitive damages.
VII. Vacatur Under Rule 60(b)
Finally, Sudan argues the district court abused its
discretion in denying its motions to vacate the default
judgments, invoking three sections of the Rule 60(b): the
judgments are void for lack of subject matter jurisdiction per
§ (b)(4); default was due to “excusable neglect” per § (b)(1);
and relief may be justified for “any other reason” per § (b)(6).
The first jurisdictional ground is nondiscretionary, Bell
Helicopter, 734 F.3d at 1179, and has been rejected already in
the sections on extrajudicial killing, jurisdictional causation,
and the ability of family members of a victim physically injured
by the bombings to press a claim under § 1605A.
We review the district court’s decision to deny vacatur on
the other two grounds for abuse of discretion. Gonzalez, 545
U.S. at 535 (“Rule 60(b) proceedings are subject to only limited
and deferential appellate review”). In doing so, we recognize
“the district judge, who is in the best position to discern and
assess all the facts, is vested with a large measure of discretion
in deciding whether to grant a Rule 60(b) motion.” Twelve John
Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir.
116
1988). Deferential review preserves the “delicate balance
between the sanctity of final judgments . . . and the incessant
command of a court’s conscience that justice be done in light
of all the facts.” Good Luck Nursing Home, Inc. v. Harris, 636
F.2d 572, 577 (D.C. Cir. 1980) (emphasis and internal
quotation marks removed). With respect to Rule 60(b)(1), relief
for excusable neglect “is rare” as “such motions allow district
courts to correct only limited types of substantive errors,” Hall
v. CIA, 437 F.3d 94, 99 (D.C. Cir. 2006), and relief for “any
other reason” under Rule 60(b)(6) is even more rare, being
available only in “extraordinary circumstances,” Ackermann v.
United States, 340 U.S. 193, 199 (1950). Factual
determinations supporting the district court’s decision are, of
course, reviewed only for clear error. Gates v. Syrian Arab
Republic, 646 F.3d 1, 4 (D.C. Cir. 2011).
Sudan, as “the party seeking to invoke Rule 60(b),” bears
“the burden of establishing that its prerequisites are satisfied.”
Id. at 5 (internal alterations and quotation marks removed). As
we have said before, “no principle of sovereign immunity law
upsets the parties’ respective burdens under Rule 60(b); nor do
oft cited ephemeral principles of fairness” demand a different
result for a foreign sovereign than for a private litigant. Id. In
order to secure vacatur, therefore, Sudan must show the district
court, in denying its motion for relief, relied upon an incorrect
understanding of the law or a clearly erroneous fact. Sudan has
not met this burden.
A. Excusable Neglect Under Rule 60(b)(1)
We begin with Sudan’s claim of excusable neglect, which
the district court addressed in detail. In evaluating a claim of
excusable neglect, a court makes an equitable determination
based upon “the danger of prejudice to the [non-moving party],
the length of the delay and its potential impact on judicial
117
proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the
movant acted in good faith.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs., 507 U.S. 380, 395 (1993). Additionally, a
party seeking vacatur must “assert a potentially meritorious
defense.” FG Hemisphere Assocs., LLC v. Democratic
Republic of Congo, 447 F.3d 835, 842 (D.C. Cir. 2006).
In its motion, Sudan submitted a three-page declaration
from Maowia Khalid, the Ambassador of Sudan to the United
States, explaining its failure to participate in much of the
litigation. First, the Ambassador asserted Sudan’s ongoing
domestic problems, including natural disasters and civil war,
rendered it unable to appear. Khalid Decl. ¶ 4. Second, the
Ambassador said a “fundamental lack of understanding in
Sudan about the litigation process in the United States”
accounted its prolonged absence from the litigation. Id. ¶ 5.
The district court soundly rejected both reasons. On Sudan’s
domestic troubles, the district court noted that “[s]ome of that
turmoil . . . has been of the Sudanese government's own
making,” but, regardless of blame, Sudan could not excuse at
least six years of nonparticipation without sending a single
communication to the court. Owens V, 174 F. Supp. 3d at 255.
The court further doubted the credibility of Sudan’s alleged
ignorance of U.S. legal procedure. After all, Sudan had used
this excuse to escape an earlier default in the same litigation,
and the “fundamental-ignorance card cannot convincingly be
played a second time.” Id. at 256.
Although the district court, in denying Sudan’s Rule 60(b)
motion, addressed all the elements of “excusable neglect”
mentioned in Pioneer, on appeal Sudan challenges only the
“reason for the delay” and the “length of the delay.” The district
court’s unchallenged finding that “vacatur would pose a real
risk of prejudice to the plaintiffs,” Owens V, 174 F. Supp. 3d at
118
257, makes it difficult to imagine Sudan could prevail even if
it were to succeed on the two elements it does raise, Pioneer,
507 U.S. at 397 (affirming a holding of excusable neglect when
the “petitioner does not challenge the findings made below
concerning . . . the absence of any danger of prejudice” to him),
but we consider its arguments nonetheless.
Preliminarily, Sudan also contends the district court
“ignored” the “policy favoring vacatur under Rule 60(b)” as it
applies to a foreign sovereign. Sudan then claims error in the
district court purportedly blaming Sudan for the circumstances
that prompted its default. Finally, Sudan faults the district
court’s comparison of the instant case to FG Hemisphere, in
which this court vacated a default judgment against the
Democratic Republic of Congo (DRC).
On the first point, Sudan correctly notes that precedent in
this Circuit supports a liberal application of Rule 60(b)(1) to
default judgments. See Jackson v. Beech, 636 F.2d 831, 836
(D.C. Cir. 1980). This stems from the general policy favoring
adjudication on the merits. Id.; Foman v. Davis, 371 U.S. 178,
181-82 (1962). The policy has particular force with respect to
a defaulting sovereign because “[i]ntolerant adherence to
default judgments against foreign states could adversely affect
this nation’s relations with other nations and undermine the
State Department’s continuing efforts to encourage foreign
sovereigns generally to resolve disputes within the United
States’ legal framework.” FG Hemisphere, 447 F.3d at 838-39(quoting Practical Concepts, 811 F.2d at 1551 n.19). Further,
we have noted, “[w]hen a defendant foreign state has appeared
and asserts legal defenses, albeit after a default judgment has
been entered, it is important . . . , if possible, that the dispute be
resolved on the basis of [] all relevant legal arguments.”
Practical Concepts, 811 F.2d at 1552.
119
For these reasons, the U.S. Government on many
occasions has submitted an amicus brief urging vacatur of a
default judgment against a foreign sovereign. See, e.g., id.; FG
Hemisphere, 447 F.3d at 838; Gregorian v. Izvestia, 871 F.2d
1515, 1518 (9th Cir. 1989); Jackson v. People’s Republic of
China, 794 F.2d 1490, 1495 (11th Cir. 1986). In this case,
however, we think it significant that the Government has not
taken a position on Sudan’s motion to vacate. Indeed, with only
two factually unique exceptions, see Beaty, 556 U.S. at 855 and
Roeder, 646 F.3d at 56, the Government has not weighed in on
behalf of a defendant state sponsor of terrorism. Cf. Doe v.
Exxon Mobil Corp., 473 F.3d 345, 360 (D.C. Cir. 2007) (noting
that “courts give deference . . . when the Executive reasonably
explains that adjudication of a particular civil lawsuit would
adversely affect the foreign policy interests of the United
States”).
Absent an expressed governmental concern with the
liability of a foreign sovereign, the general policy favoring
vacatur, by itself, cannot control the resolution of Sudan’s Rule
60(b) motion. After all, the FSIA expressly authorizes default
judgments against absent sovereigns. See 28 U.S.C. § 1608(e).
If policy considerations alone made vacatur of judgments
against foreign sovereigns under Rule 60(b) near-automatic,
then the general policy favoring vacatur would render the
specific authorization of default judgments in the FSIA a
nullity. A district court would abuse its discretion if it were
simply to apply the general policy, as Sudan asks us to do now,
without considering the specific facts at hand. See FG
Hemisphere, 447 F.3d at 838-42 (noting the general policy
opposing vacatur but considering the Pioneer factors).
Considering those facts, we see why the district court said that
“shouldering [Sudan’s] burden is a Herculean task.” Owens V,
174 F. Supp. 3d at 254. Indeed, if we were to vacate the default
judgment in this case, then we could not expect any sovereign
120
to participate in litigation rather than wait for a default
judgment, move to vacate it under Rule 60(b), appeal if
necessary, and then reenter the litigation to contest the merits,
having long delayed its day of reckoning. Cf. H. F. Livermore
Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689,
691 (D.C. Cir. 1970) (approving of default judgments “when
the adversary process has been halted because of an essentially
unresponsive party” in which case “the diligent party must be
protected lest he be faced with interminable delay and
continued uncertainty as to his rights”).
Sudan’s own actions place it well outside the general
policy favoring vacatur. In the cases it cites, relief was justified
because the defendant had no notice of the default and
promptly responded once made aware of the judgment. See
Bridoux v. E. Air Lines, 214 F.2d 207, 209 (D.C. Cir. 1954);
FG Hemisphere, 447 F.3d at 839. In contrast, Sudan knew of
the Owens action, twice obtained sophisticated legal counsel in
2004, and fully participated in the litigation before absenting
itself in 2005. In another case involving a foreign sovereign,
there was no abuse of discretion in denying vacatur because the
defendant had “received actual or constructive notice of the
filing of the action and failed to answer” or to provide a good-
faith reason for its unresponsiveness. See Meadows v.
Dominican Republic, 817 F.2d 517, 521 (9th Cir. 1987).
Moreover, unlike the foreign sovereigns in some cases vacating
default judgments, see, e.g., Gregorian, 871 F.2d at 1525;
Jackson, 794 F.2d at 1495-96, Sudan cannot claim to have
defaulted in the reasonable belief that it enjoyed sovereign
immunity. Several decisions of the district court and this court
served on Sudan suggested the evidence proffered by the
Owens plaintiffs could meet or met their burden of production
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to establish the jurisdiction of the court. 9 Even when served
with the district court’s 2011 opinion on liability, which
definitively established Sudan’s lack of immunity, Sudan let
three years pass before filing its motion to vacate. For these
reasons, Sudan’s lack of diligence in pursuing its Rule 60(b)
motion weighs heavily against vacatur. Cf. Reinsurance Co. of
Am. v. Administratia Asigurarilor de Stat, 902 F.2d 1275,
1276, 1278 (7th Cir. 1990) (affirming denial of Rule 60(b)
motion made by a state-owned insurance company for failure
to “demonstrate the diligence necessary” to vacate a default
judgment).
Furthermore, this is not the first time Sudan has sought to
vacate its default or default judgment. In May 2003 the district
court entered a default against Sudan for failure to appear. Ten
months later, Sudan secured counsel and moved for vacatur
under Rule 55(c), which the court granted based upon the very
“presumption against an entry of default judgment against a
foreign state” that Sudan claims the court ignored in 2016.
Owens I, 374 F. Supp. 2d at 9, 10 n.5. But the presumption
against a default judgment is just that – a presumption. The
rationale for leniency is necessarily weaker when a defendant
seeks to excuse its second default. See Flanagan, 190 F. Supp.
3d at 158 (noting, as well, Sudan’s prior default in Rux v.
Republic of Sudan, No. 2:04-cv-0428, 2005 WL 2086202, at
*2-3, *12-13 (E.D. Va. Aug. 26, 2005)). A double-defaulting
sovereign also loses the ability to assert certain “reasons for the
9
See Owens IV, 826 F. Supp. 2d at 150 (“Plaintiffs have satisfied
their burden under 28 U.S.C. § 1608(e) to show . . . Sudan . . .
provided material support and resources . . . for acts of terrorism”);
Owens I, 374 F. Supp. 2d at 17-18 (noting the plaintiffs “will have
no trouble in making [the] allegation[s]” necessary to “survive a
motion to dismiss”) (quoting Price, 294 F.3d at 93); Owens II, 412
F. Supp. 2d at 108-09, 115 (holding the plaintiffs’ claims, accepted
as true, satisfied the pleading standards of the FSIA).
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delay,” including ignorance of the law and a reasonable belief
in its own immunity. It is still more difficult to show “good
faith” by a defendant that has walked away a second time
without so much as a fare thee well. Hence, the general policy
favoring relief from default judgments is not enough to
overcome Sudan’s double default in this case. 10
Finally, it bears mentioning that the district court and now
this court have afforded Sudan, as a foreign sovereign,
substantial protection against the harsh consequences of a
default judgment. Notwithstanding Sudan’s failure to
participate, the district court assessed whether the plaintiffs’
evidence was satisfactory, once to prevail on the merits and
twice to establish jurisdiction. See Owens IV, 826 F. Supp. 2d
at 139-46 (applying 28 U.S.C. § 1608(e)); Owens V, 174 F.
Supp. 3d at 275-80. Furthermore, the district court (and now
this court de novo) reviewed Sudan’s jurisdictional arguments
pursuant to its Rule 60(b)(4) motion. We have also exercised
our discretion to consider several of Sudan’s nonjurisdictional
objections, even though Sudan forfeited these arguments by
defaulting. We even granted Sudan relief from punitive
10
In a supplemental filing, Sudan points to our recent decision in
Gilmore, in which we held the district court did not abuse its
discretion by vacating two defaults entered against the Palestinian
Authority in light of the defendant’s willingness to participate in
subsequent discovery and litigation. 843 F.3d at 995-96. In doing so,
Sudan notes, we referenced “the federal policy favoring trial over
default judgment.” Id. at 995 (quoting Whelan v. Abell, 48 F.3d 1247,
1258 (D.C. Cir. 1995)). But Gilmore dealt with vacatur of a default
under Rule 55(c); the less-demanding “good cause” standard for
vacating a default under that rule “frees a court from the restraints of
Rule 60(b)” and “entrusts the determination to the discretion of the
court.” Id. at 996 (quoting 10A CHARLES A. WRIGHT, ARTHUR R.
MILLER & MARY K. KANE, FEDERAL PRACTICE AND PROCEDURE
§ 2694 (3d ed. 2016)).
123
damages despite its failure timely to object to these awards in
the district court. Therefore, Sudan cannot complain “the
dispute [has not been] resolved on the basis of . . . all relevant
legal arguments.” See Practical Concepts, 811 F.2d at 1552.
Beyond relying upon the general policy in favor of
vacatur, Sudan challenges the reasoning behind the district
court’s decision. In particular, Sudan faults the district court for
holding it responsible for its domestic troubles, contending a
court may not consider “the question of blame” in analyzing
excusable neglect. Sudan is twice wrong. Not only have courts
consistently recognized that a defendant’s “culpable conduct”
may justify denying it relief under Rule 60(b)(1), see Mfrs.’
Indus. Relations Ass’n v. E. Akron Casting Co., 58 F.3d 204,
206 (6th Cir. 1995) (inquiring “[w]hether culpable conduct of
the defendant led to the default”); Gregorian, 871 F.2d at 1523;
Info. Sys. & Networks Corp. v. United States, 994 F.2d 792,
795 (Fed. Cir. 1993), but the district court expressly based its
decision upon Sudan’s unresponsiveness, not its
blameworthiness; “setting aside the question of blame,” it said:
Domestic turmoil would surely have justified
requests by Sudan for extensions of time in
which to respond to the plaintiffs’ filings. It
would have also probably led the Court to
forgive late filings. And perhaps it would have
even justified a blanket stay of these cases. But
Sudan was not merely a haphazard,
inconsistent, or sluggish litigant during the
years in question – it was a complete and utter
nonlitigant. Sudan never sought additional time
or to pause any of these cases in light of troubles
at home. Sudan never even advised the Court of
those troubles at the time they were allegedly
preventing Sudan's participation – not through
124
formal filings, and not through any letters or
other mode of communication with the Court.
The idea that the relevant Sudanese officials
could not find the opportunity over a period of
years to send so much as a single letter or email
communicating Sudan's desire but inability to
participate in these cases is, quite literally,
incredible.
Owens V, 174 F. Supp. 3d at 256. Therefore, we find no abuse
of discretion in the district court’s brief reference to the
Sudan’s possible responsibility for its domestic turmoil.
Sudan also objects to the district court’s discussion of its
unresponsiveness, arguing the court demonstrated “a lack of
appreciation of the operational realities of a least developed
nation in turmoil.” But the one conclusory paragraph in the
three-page declaration of its Ambassador to the United States
that Sudan cites as evidence for this proposition does not show
it was incapable of maintaining any communication with the
district court. Indeed, Sudan participated in the litigation during
its civil war and while negotiating a peace treaty bringing that
war to a close. See UNMIS Background, UNITED NATIONS
MISSION IN THE SUDAN, http://www.un.org/en/peacekeeping/
missions/past/unmis/background.shtml (last visited July 19,
2017). This shows Sudan could participate in legal proceedings
despite difficult domestic circumstances. Without record
evidence supporting Sudan’s complete inability to participate,
the district court did not abuse its discretion in holding Sudan
failed to carry its burden of proving excusable neglect.
As a final argument under Rule 60(b)(1), Sudan faults the
district court’s comparison of this case to FG Hemisphere. In
FG Hemisphere we vacated a default judgment against the
Democratic Republic of Congo (DRC) rendered under the
125
FSIA exception for commercial activity, § 1605(a)(2). 447
F.3d at 843. Sudan’s reliance upon FG Hemisphere is
unsurprising as there we noted the DRC “was plainly hampered
by its devastating civil war” which justified, in part, its delayed
response. Id. at 141. But the outcome in FG Hemisphere did
not turn solely, or even primarily, upon the domestic turmoil in
the DRC. Problems with notice and service, not internal strife,
principally excused the DRC’s default. In that case, the
defendant sovereign was first notified that its diplomatic
properties were in jeopardy when it was served with a motion
to execute a default judgment a mere six days before a response
was due. Id. at 839-40. The plaintiffs’ failure to translate the
motion from English into French, the official language of the
DRC, “virtually guaranteed the DRC’s inability to file a timely
response.” Id. That the DRC was then engaged in a
“devastating civil war” merely diminished its “capacity . . . for
[the] swift and efficient handling of . . . English-language
materials”; it did not ultimately prevent the DRC from
responding to the motion, which it did shortly after receipt. Id.
at 840-41.
Unlike the DRC in FG Hemisphere, Sudan had notice of
the litigation from the time it was first sued. The district court’s
2011 opinion on liability was translated into Arabic, Sudan’s
national language, and delivered through diplomatic channels.
Sudan cannot, and does not, complain about defects in notice
or service of process. See Owens V, 174 F. Supp. 3d at 255
(noting that “Sudan’s council conceded, ‘there’s no dispute
about service being proper’”).
Nor can Sudan claim to be surprised by the suits, as was
the defendant in FG Hemisphere. Sudan actively participated
in the litigation from February 2004 until January 2005. Even
after disengaging from the case, Sudan contacted its counsel
for a status update in September 2008. If Sudan indeed needed
126
to divert “all [its] meager legal and diplomatic personnel” to
the “cession of south Sudan,” as its Ambassador now suggests,
then it could have communicated this affirmative decision to
the court, along with a request to stay the proceedings. In light
of this history, it was not unreasonable for the district court to
demand something more than a conclusory assertion without
virtually any record evidence of Sudan’s inability to participate
in the litigation.
Also, as the district court noted, the length of delay in FG
Hemisphere pales in comparison to Sudan’s absence in this
case. The DRC initiated efforts to secure counsel within one
day of receiving notice of the motion to execute. 447 F.3d at
838. Within two months, its counsel filed motions to vacate the
default judgment and to stay its execution. Id. In contrast,
Sudan filed its motions to vacate the judgments 17 months after
service of the complaint in Opati, the last of the consolidated
cases, 40 months after the district court’s 2011 opinion on
liability, and 53 months after the evidentiary hearing that Sudan
did not attend. Indeed, Sudan ceased regular communication
with counsel in the Owens action nearly eight years before
filing its present motions. Cf. Smith v. District of Columbia,
430 F.3d 450, 456 n.5 (D.C. Cir. 2005) (noting that delay of
“well over a year” militated against excusable neglect). By
defaulting, then appearing, then defaulting again, Sudan
delayed this case for years beyond its likely end had it simply
failed to appear at all. These affirmative actions extended the
delay and make Sudan’s second default even less excusable
than its first. We therefore find no error in the district court’s
unfavorable comparison of Sudan’s default to that of the DRC
in FG Hemisphere. In sum, none of Sudan’s arguments shows
the district court abused its discretion in failing to vacate the
default judgments for “excusable neglect.”
127
B. Extraordinary Circumstances Under Rule 60(b)(6)
Sudan also challenges the district court’s denial of its
motion under Rule 60(b)(6), claiming its failure to appear was
justified by “extraordinary circumstances.” 11 Because Rule
60(b)(1) contains a one-year filing deadline for claims of
“excusable neglect,” which Sudan missed with respect to the
11
In addition, Sudan moves to vacate the judgments in favor of
foreign family members and the awards of punitive damages under
Rule 60(b)(6), claiming the district court’s errors of law on these
questions also provide “extraordinary circumstances” supporting
vacatur. We have addressed these nonjurisdictional matters
separately in the preceding sections. Although a “dispute over the
proper interpretation of a statute,” by itself, does not likely justify
relief under Rule 60(b)(6), Carter v. Watkins, 995 F.2d 305 (D.C.
Cir. 1993) (per curiam) (table); cf. Ctr. for Nuclear Responsibility,
Inc. v. U.S. Nuclear Regulatory Comm’n, 781 F.2d 935, 939-40
(D.C. Cir. 1986) (discussing a Circuit split on the matter and
expressing doubt on whether Rule 60(b) should be used to correct
legal errors), we have reviewed and rejected each of Sudan’s
contentions on direct appeal from the default judgments due to the
size of the awards in question, underlying constitutional concerns
about retroactive liability for punitive damages, and the likelihood of
the purely legal issues here recurring in our district court. Hence,
there is no need to evaluate whether these claims present
“extraordinary circumstances” under Rule 60(b)(6). In contrast to
these purely legal arguments, which require no further factual
development, see Roosevelt, 958 F.2d at 419 & n.5, we see far less
reason to give Sudan an opportunity to relitigate the factual record
by vacating the default judgments, especially considering its failure
to participate in the district court and our independent review of the
evidence showing material support and jurisdictional causation. See
Practical Concepts, 811 F.2d at 1552 (“When a defendant foreign
state has appeared and asserts legal defenses, albeit after a default
judgment has been entered, it is important . . . that the dispute be
resolved on the basis of . . . all relevant legal arguments”) (emphases
added).
128
Mwila and Khaliq judgments, Sudan’s Rule 60(b)(6) motions
are the only way it may obtain vacatur of those default
judgments.
Perhaps recognizing this, Sudan rephrased its earlier
arguments asserting “excusable neglect” as requests for relief
from those default judgments under Rule 60(b)(6). As with the
other cases, the declaration of Ambassador Khalid figures
prominently in Sudan’s Mwila and Khaliq motions. This gets
Sudan nowhere. In order to receive relief under Rule 60(b)(6),
a party must show “extraordinary circumstances” justifying
vacatur. Gonzalez, 545 U.S. at 534. As the Supreme Court has
explained, the grounds for vacatur under Rule 60(b)(1)
and(b)(6) are “mutually exclusive.” Pioneer, 507 U.S. at 393.
Therefore, “a party who failed to take timely action due to
‘excusable neglect’ may not seek relief more than a year after
the judgment by resorting to subsection (6).” Id.The district court acknowledged this distinction and
denied Sudan’s motion under Rule 60(b)(6) as merely a
“rehash of Sudan's Rule 60(b)(1) argument for excusable
neglect.” Owens V, 174 F. Supp. 3d at 258. Instead of grappling
with the district court’s actual decision, Sudan takes issue with
the court’s reference to Ungar v. Palestine Liberation
Organization, 599 F.3d 79 (1st Cir. 2010), in which the First
Circuit held that a sovereign’s willful default did not per se
preclude vacatur. Id. at 86-87. The district court was
understandably puzzled by Sudan’s fleeting reference to Ungar
in light of its assertions that its default was involuntary. If
Sudan’s default was intentional, as in Ungar, the court noted,
then relief under Rule 60(b)(1) would be unavailable. Owens
V, 174 F. Supp. 3d at 258. But these musings were not the basis
of the district court’s decision and therefore cannot be an abuse
of discretion.
129
Undeterred, Sudan now argues Ungar demands vacatur
when there would be “political ramifications[] and [a] potential
effect on international relations” from a default judgment, as
Sudan claims there would be in this case. Ungar, 599 F.3d at
86-87. In its view, these political considerations supply the
“extraordinary circumstances” needed to vacate a default
judgment under Rule 60(b)(6). Sudan failed to raise this
argument before the district court, and it is therefore forfeit on
appeal. Accordingly, we affirm the district court’s denial of
vacatur under Rule 60(b).
*****
To conclude, we (1) affirm the district court’s findings of
jurisdiction with respect to all plaintiffs and all claims;
(2) affirm the district court’s denial of vacatur; (3) vacate all
awards of punitive damages; and (4) certify a question of state
law – whether a plaintiff must be present at the scene of a
terrorist bombing in order to recover for IIED – to the District
of Columbia Court of Appeals.
So ordered.