77 F.4th 892
D.C. Cir.2023Background
- In Israel, Michael Mark was killed and his family injured in a Hamas shooting; Chava Mark and family sued Sudan in U.S. federal court under the FSIA terrorism exception alleging Sudan provided material support to Hamas.
- After the suit was filed, the U.S. and Sudan entered a Claims Settlement Agreement under which the U.S. accepted a $335 million payment and agreed to espouse and terminate remaining claims against Sudan.
- Congress enacted the Sudan Claims Resolution Act (SCRA) in 2020, which restores Sudan’s sovereign immunity by removing FSIA’s terrorism exception for Sudan, except for pending September 11, 2001-related claims.
- Sudan invoked the SCRA to claim immunity; the district court dismissed the Marks’ suit for lack of subject-matter jurisdiction. The U.S. intervened in support of Sudan.
- The Marks appealed, arguing the SCRA (and the underlying Agreement) violated the Fifth Amendment’s equal protection component and the right of access to courts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SCRA’s jurisdiction-stripping provision is within constitutional bounds | Marks: SCRA’s differential treatment of 9/11 claimants vs others violates equal protection | Sudan/U.S.: Congress may set jurisdiction of lower federal courts and has rational bases for the carveout (diplomatic settlement, prioritizing longstanding/9/11 claims) | Held: SCRA is constitutional; Congress may strip jurisdiction here |
| Whether the carveout fails rational-basis review as arbitrary classification | Marks: treating similarly situated terrorism victims differently is arbitrary | Sudan/U.S.: rational bases include espousal of claims, foreign-relations benefits, prioritizing homeland/longstanding claims | Held: Classification survives rational-basis review |
| Whether SCRA impairs the fundamental right of access to courts requiring strict scrutiny | Marks: removal of forum impairs right to judicial redress | Sudan/U.S.: right-of-access claims (forward/backward-looking) not shown; Congress/President have longstanding powers to limit jurisdiction and espouse claims | Held: No cognizable access-to-courts violation; strict scrutiny not triggered |
| Proper disposition when court lacks subject-matter jurisdiction | Marks: dismissal should not extinguish claims permanently | Sudan: moved to dismiss (sought dismissal) | Held: Dismissal for lack of jurisdiction must be without prejudice; district court’s dismissal with prejudice was modified to without prejudice |
Key Cases Cited
- Bowles v. Russell, 551 U.S. 205 (courts may consider whether jurisdiction-stripping statutes are within constitutional bounds)
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (FSIA governs jurisdiction over foreign states in federal court)
- Dames & Moore v. Regan, 453 U.S. 654 (presidential espousal/settlement power and foreign-relations considerations)
- FCC v. Beach Communications, Inc., 508 U.S. 307 (rational-basis standard for statutory classifications)
- Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (equal protection component of Fifth Amendment)
- Christopher v. Harbury, 536 U.S. 403 (doctrine distinguishing forward-looking and backward-looking access-to-courts claims)
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (jurisdictional questions must be resolved before reaching the merits)
- Northern Am. Butterfly Ass'n v. Wolf, 977 F.3d 1244 (dismissal for lack of subject-matter jurisdiction must be without prejudice)