Chava Mark v. Republic of the Sudan ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 28, 2022 Decided July 21, 2023
No. 21-5250
CHAVA RACHEL MARK, INDIVIDUALLY AND AS PARENT AND
NATURAL GUARDIAN OF TBM, RLM AND EBM, MINORS, ET
AL.,
APPELLANTS
v.
REPUBLIC OF THE SUDAN AND UNITED STATES,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-03022)
Asher Perlin argued the cause and filed the briefs for
appellants.
Christopher M. Curran argued the cause for appellee
Republic of Sudan. With him on the briefs were Nicole Erb,
Claire A. DeLelle, and Celia A. McLaughlin.
Sonia M. Carson, Attorney, U.S. Department of Justice,
argued the cause for appellee United States. With her on the
briefs were Brian M. Boynton, Principal Deputy Assistant
2
Attorney General, and Sharon Swingle and Lewis Yelin,
Attorneys.
Before: SRINIVASAN, Chief Judge, and WILKINS and RAO,
Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: Chava Mark and her family sued
Sudan, seeking compensation for a terrorist attack on their
family. The question on appeal is whether we have jurisdiction.
Under the Foreign Sovereign Immunities Act, a state sponsor
of terrorism may be sued for personal injury arising from acts
of terrorism. But in 2020, Congress enacted the Sudan Claims
Resolution Act, which stripped the federal courts of
jurisdiction to hear most terrorism related claims against
Sudan. The Marks argue that the Act’s jurisdiction-stripping
provision is unconstitutional and therefore that their claims
against Sudan may be heard in federal court. The district court
dismissed for lack of jurisdiction. Finding no constitutional
infirmity in the Act’s jurisdiction-stripping provision, we
affirm.
I.
Michael Mark was driving his wife, Chava Mark, and their
children down a country highway in Israel, when two Hamas
operatives began tailing them.1 Swerving into the adjacent lane,
the operatives fired roughly 25 bullets from a Kalashnikov
assault rifle, killing Michael Mark and injuring his family.
1
We accept these allegations as true for purposes of reviewing the
district court’s dismissal. See Bernhardt v. Islamic Republic of Iran,
47 F.4th 856, 861 (D.C. Cir. 2022).
3
Chava Mark and her children sued in federal district court,
contending Sudan provided Hamas with material support for
the terrorist act. The Marks brought a single claim under the
terrorism exception of the Foreign Sovereign Immunities Act
(“FSIA”), which creates a private right of action against foreign
states that provide “material support or resources” for
“personal injury or death” caused by an “extrajudicial killing.”
National Defense Authorization Act for Fiscal Year 2008, Pub.
L. No. 110-181, 122 Stat. 3, 338–40 (codified as amended at
28 U.S.C. § 1605A(a)–(c)). The Marks sought $250 million in
compensatory damages.2
After the Marks filed their complaint, the United States
entered into a claims settlement agreement with Sudan. See
Claims Settlement Agreement, U.S.-Sudan (“CSA” or
“Agreement”), Oct. 30, 2020, T.I.A.S. No. 21-209 (entered into
force Feb. 9, 2021). The Agreement was part of an ongoing
effort to improve diplomatic relations between the United
States and Sudan and to promote the latter’s ongoing
democratic transition. Id. pmbl. At the time the United States
and Sudan entered into the Agreement, Sudan had
compensated several victims of the 2000 terrorist attack on the
U.S.S. Cole but multiple suits against Sudan remained pending.
Id. The United States agreed to espouse and terminate all
remaining claims against Sudan in exchange for a $335 million
settlement payment. Id. art. III(2); see also RESTATEMENT
(SECOND) OF THE FOREIGN RELATIONS LAW OF THE UNITED
STATES § 213 (1965) (explaining the espousal power allows the
President to “waive or settle a claim against a foreign
state … without the consent of [the injured] national”);
Asociacion de Reclamantes v. United Mexican States, 735 F.2d
1517, 1523 (D.C. Cir. 1984) (“Under well-established
2
Sudan was a designated state sponsor of terrorism during all times
relevant to this appeal but was removed from the list in 2020.
4
principles of international law, a sovereign possesses the
absolute power to assert the private claims of its nationals
against another sovereign.”).
After receiving the $335 million, the United States enacted
the Sudan Claims Resolution Act (“SCRA”), which effectively
restored Sudan’s sovereign immunity with respect to terrorism
claims. Pub. L. No. 116-260, 134 Stat. 3291 (2020) (codified
at 28 U.S.C. § 1605A (note)) (providing the FSIA’s terrorism
exception no longer applies to Sudan). The Act preserved only
one class of suits—the ongoing proceedings brought by
“victims and family members of the September 11, 2001,
terrorist attacks.” SCRA § 1706(a)(2)(A).
Following the Act’s passage, Sudan invoked its immunity
from suit and moved to dismiss the Marks’ case for lack of
subject matter jurisdiction. Sudan also maintained the
Agreement terminated the Marks’ cause of action. The Marks
responded that the Act and the Agreement violated the equal
protection component of the Fifth Amendment. The United
States intervened in support of Sudan.
The district court granted Sudan’s motion to dismiss. Mark
v. Republic of Sudan, 2021 WL 4709718, at *5 (D.D.C. Oct. 7,
2021). The court held that the Act and Agreement were
constitutional and therefore that the court lacked jurisdiction to
consider the Marks’ claims. Id. at *3–5. The Marks timely
appealed.
II.
The Marks acknowledge their claims fit within the
jurisdiction-stripping provision of the Sudan Claims
Resolution Act. They maintain, however, that this provision
violates the Constitution.
5
A.
Although the Act by its plain terms divests this court of
jurisdiction, we nonetheless may consider whether this
jurisdictional ouster is “[w]ithin constitutional bounds.”
Bowles v. Russell, 551 U.S. 205, 212 (2007); Patchak v. Zinke,
138 S. Ct. 897, 909 (2018) (plurality) (considering a
constitutional challenge to a jurisdiction-stripping statute);
Belbacha v. Bush, 520 F.3d 452, 456 (D.C. Cir. 2008)
(recognizing that federal courts have “presumptive
jurisdiction … to inquire into the constitutionality of a
jurisdiction-stripping statute”).
The Constitution vests Congress with the authority “[t]o
constitute Tribunals inferior to the supreme Court.” U.S.
CONST. art. I, § 8, cl. 9; see also id. art. III, § 1. This broad
power “includes [the] lesser power to limit the jurisdiction of
those courts.” Patchak, 138 S. Ct. at 906 (plurality) (cleaned
up). “[T]he subject-matter jurisdiction of the lower federal
courts is determined by Congress in the exact degrees and
character which to Congress may seem proper for the public
good.” Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 433 (1989) (cleaned up). Congress’ “‘control
over the jurisdiction of the federal courts’ is ‘plenary,’”
provided it “does not violate other constitutional provisions”
when exercising its power to constitute inferior tribunals.
Patchak, 138 S. Ct. at 906 (plurality) (quoting Trainmen v.
Toledo, P. & W.R. Co., 321 U.S. 50, 63–64 (1944)); see also
Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850) (“[A] statute
which does prescribe the limits of [the courts’] jurisdiction,
cannot be in conflict with the Constitution, unless it confers
powers not enumerated therein.”). Congress’ power to set
lower federal court jurisdiction serves as an important
constitutional check on the judiciary.
6
With respect to foreign sovereign immunity, Congress has
exercised its power to specify whether and to what extent
foreign sovereigns may be sued in federal court. Human v.
Czech Republic—Ministry of Health, 824 F.3d 131, 134 (D.C.
Cir. 2016). In civil suits, the FSIA mandates that “a foreign
state shall be immune from the jurisdiction of the courts of the
United States,” unless certain exceptions apply. 28 U.S.C.
§ 1604; see also id. §§ 1605, 1605A, 1605B, 1607
(enumerating exceptions); Argentine Republic, 488 U.S. at 439(explaining the FSIA is the exclusive avenue for “obtaining
jurisdiction over a foreign state in federal court”). The FSIA’s
terrorism exception provides federal courts with jurisdiction
over certain injuries caused by state sponsors of terrorism. 28
U.S.C. § 1605A(a)–(c).
The Sudan Claims Resolution Act effectively restored
Sudan’s sovereign immunity for most terrorism related claims.
Under the Act, Sudan “shall not be subject to [various]
exceptions to immunity from jurisdiction,” including the
FSIA’s terrorism exception. SCRA § 1704(a)(1)(A). The Act
preserved only one class of suits—the ongoing proceedings
brought by “victims and family members of the September 11,
2001, terrorist attacks.” Id. § 1706(a)(2)(A); see also
id. § 1706(c) (“Nothing in this Act shall apply to … any claim
in any of the proceedings comprising the multidistrict
proceeding [related to the September 11 attacks] brought by
any person who, as of the date of the enactment of this Act, has
a claim pending against Sudan.”).
B.
The Marks concede their claims do not fit within the carve-
out for the victims of the September 11 attacks and are
encompassed by the Act’s provision stripping jurisdiction for
terrorism claims against Sudan. Nonetheless, the Marks
7
maintain this provision is unconstitutional because it violates
the equal protection guarantee of the Fifth Amendment. See
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 204 (1995)
(discussing the “equal protection component of the Fifth
Amendment’s Due Process Clause”). They argue the disparate
treatment of their claims from those of the September 11
victims is (1) an arbitrary distinction that fails rational basis
review, and/or (2) an impairment of their fundamental right to
access the courts that cannot survive strict scrutiny.3 Because
the jurisdiction-stripping provision of the Act is
unconstitutional, the Marks contend, this court retains
jurisdiction over their suit against Sudan for its support of the
lethal terrorist attack on their family.
3
The Marks challenge both the Agreement and the Act as
unconstitutional. The Agreement, however, espouses their claims
and therefore “simply effected a change in the substantive law
governing the lawsuit,” but did not affect our jurisdiction. Dames &
Moore v. Regan, 453 U.S. 654, 685 (1981). The Marks’ equal
protection arguments do not distinguish between the disparate
treatment with respect to jurisdiction-stripping and the disparate
treatment with respect to the substantive claims espoused by the
United States. Because we hold that we lack jurisdiction over the
Marks’ claims, we do not consider the Marks’ constitutional
arguments as they pertain to the substance of the Agreement.
We also note the district court improperly analyzed the
constitutionality of the Agreement. Although the Marks raised the
same constitutional arguments against the Act and the Agreement,
the jurisdictional question should have been addressed first. Finding
no jurisdiction, the proper course was to dismiss the suit without
considering the Marks’ claims about the Agreement. See Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998).
8
1.
The Marks first argue the Act’s jurisdiction-stripping
provision runs afoul of equal protection because it bars their
claim while allowing the claims of “other similarly situated
victims of Sudan-sponsored terrorism.” In particular, they
maintain the Act arbitrarily carves out claims brought by
certain September 11 claimants.
We apply rational basis review unless a statutory
classification “proceeds along suspect lines [or] infringes
fundamental constitutional rights.” Hettinga v. United States,
677 F.3d 471, 478 (D.C. Cir. 2012) (per curiam) (quoting FCC
v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). The
parties agree that the Marks’ first equal protection challenge is
subject to rational basis review. Judged under this standard, we
must uphold the Act’s statutory classifications “if there is any
reasonably conceivable state of facts that could provide a
rational basis for” them. Beach Commc’ns, Inc., 508 U.S. at
313. So long as it does not classify along suspect lines or impair
fundamental rights, Congress may provide “special treatment”
to one group if there is a rational basis for doing so. Am. Bus
Ass’n v. Rogoff, 649 F.3d 734, 741–42 (D.C. Cir. 2011); see
also Beach Commc’ns, Inc., 508 U.S. at 314 (explaining that
under rational basis review a statute “bear[s] a strong
presumption of validity”).
The Act’s jurisdiction-stripping provision easily satisfies
this standard. Both Sudan and the United States offer several
reasonable justifications for the Act. First, the Act’s
jurisdiction-stripping provision fosters stronger relations with
Sudan by limiting its potential liability to United States
nationals. The government exercised its power to espouse
claims against Sudan, eliminating “sources of friction between
the two sovereigns.” Dames & Moore v. Regan, 453 U.S. 654,
9
679 (1981) (cleaned up). Consistent with the espousal of claims
in the Settlement Agreement, the Act stripped jurisdiction over
certain pending claims, freeing Sudan from potential liability
that could otherwise impair its relationship with the United
States.
Second, the Act’s jurisdiction-stripping provision
rationally distinguishes between terrorist attacks in general and
the September 11 attacks. The Act’s carveout for September 11
victims and families involves one of the most fatal attacks on
the United States homeland. And the litigation surrounding
September 11 has been ongoing for nearly twenty years. The
Marks’ claims, on the other hand, stemmed from a terrorist
attack abroad, and their suit arose just a few months before the
United States and Sudan entered into the Agreement. It was
rational for the Act to maintain decades-old claims over more
recent ones and to prioritize attacks on the homeland over other
attacks.
2.
The Marks also contend the Act’s jurisdiction-stripping
provision violates equal protection by impairing their right to
access the courts. Because the right to access the courts is a
fundamental right, the Marks maintain the unequal treatment
must survive strict scrutiny.
The Supreme Court has long held that citizens have a
constitutional right to access the courts. See, e.g., Chambers v.
Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907). Circuit
courts have recognized two types of access claims: forward
looking claims and backward looking claims. Christopher v.
Harbury, 536 U.S. 403, 412–14 (2002) (discussing cases); see
also Broudy v. Mather, 460 F.3d 106, 117–21 (D.C. Cir. 2006)
(recognizing both types). Forward looking claims generally
arise when the government hinders a litigant’s ability to file or
10
prepare for a lawsuit that has not yet commenced. For a forward
looking claim to succeed, the Marks must show that “systemic
official action frustrate[d] [the Marks] in preparing and filing”
their suit. Christopher, 536 U.S. at 413. The Marks make no
such showing. Backward looking claims arise when the
government “cause[s] the loss or inadequate settlement of a
meritorious case” or “the loss of an opportunity to sue.” Id. at
413–14. To bring a successful backward looking claim, the
Marks must assert that the government “caused the[ir] suit to
be dismissed as untimely” or that some sort of official conduct
“render[ed] hollow [their] right to seek redress.” Sousa v.
Marquez, 702 F.3d 124, 128 (2d Cir. 2012) (cleaned up). But
the Marks assert neither. The Marks challenge Congress’
restoration of Sudan’s sovereign immunity, but these claims
simply do not implicate the right to access the courts. See
Patchak v. Jewell, 828 F.3d 995, 1004 (D.C. Cir. 2016), aff’d
sub nom. Patchak, 138 S. Ct. at 897.
Moreover, the Marks’ claims are in tension with the
government’s power to establish inferior courts and espouse
the claims of its citizens. Since the Founding, the President has
exercised the power to espouse the claims of citizens. See, e.g.,
Ware v. Hylton, 3 U.S. (3 Dall.) 199, 259–60 (1796) (statement
of Iredell, J.); Dames & Moore, 453 U.S. at 679 n.8. Similarly,
Congress has long exercised its plenary authority to set the
jurisdictional reach of the federal courts. The right to access
courts does not constrain either of these longstanding powers.
C.
Finally, although we hold the Act validly stripped the
federal courts of jurisdiction over the Marks’ cause of action,
the district court erred when it dismissed the Marks’ complaint
with prejudice. “[A] dismissal for want of subject-matter
jurisdiction can only be without prejudice.” N. Am. Butterfly
11
Ass’n v. Wolf, 977 F.3d 1244, 1253 (D.C. Cir. 2020); see also
FED. R. CIV. P. 41(b). Accordingly, we modify the district
court’s judgment to be a dismissal without prejudice.
***
The Marks family suffered a horrible attack by Hamas for
which it seeks recovery from Sudan. Congress has, however,
stripped this court of jurisdiction to hear the Marks’ terrorism
related claims. That provision is constitutional, and we lack
jurisdiction. We affirm the district court’s judgment as
modified.
So ordered.