Opati v. Republic of Sudan
140 S. Ct. 1601
| SCOTUS | 2020Background
- 1998: al Qaeda bombed the U.S. Embassies in Kenya and Tanzania; victims and families sued the Republic of Sudan alleging it aided al Qaeda.
- FSIA originally provided a terrorism exception (28 U.S.C. §1605(a)(7)) but barred punitive damages under §1606.
- 2008 NDAA §1083 moved the terrorism exception to 28 U.S.C. §1605A, created an express federal cause of action (§1605A(c)) that expressly authorizes punitive damages, and included §1083(c)(2) ("Prior Actions") and §1083(c)(3) ("Related Actions") to bring certain pre-enactment conduct within §1605A.
- Owens district court found Sudan liable and awarded approx. $10.2 billion, including ~$4.3 billion in punitive damages to plaintiffs who relied on the 2008 amendments.
- D.C. Circuit held punitive damages unavailable for pre-enactment conduct because Congress had not clearly authorized retroactive punitive awards; the Supreme Court granted certiorari to decide the federal-question presented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1605A(c) permits punitive damages for pre-enactment conduct | §1083(a) expressly authorizes punitive damages in §1605A(c) and §§1083(c)(2)/(3) make that cause of action available for prior/related actions, so punitive damages apply to past acts | No clear statement authorizes punitive damages retroactively; Landgraf presumption requires clear congressional intent | Court: Yes; even assuming Landgraf presumption, Congress was sufficiently clear in authorizing punitive damages retroactively under §1605A(c) |
| Whether Landgraf presumption of prospectivity bars retroactive liability here | Altmann suggests the presumption is weak in foreign-sovereign-immunity context; Congress may withdraw immunity retroactively | Landgraf presumption applies; retroactive punitive damages require clear statement | Court: Assumed (without deciding) Landgraf might apply but resolved case on clarity—Congress was clear enough, so no need to decide presumption's scope |
| Whether the phrase "may include punitive damages" is too equivocal to authorize retroactive punitive awards | "May" denotes judicial discretion to award punitive damages; categories listed equally so punitive damages apply like other damages | "May" is insufficiently clear to authorize retroactive punitive punishment | Court: "May" connotes discretion and is sufficient to authorize punitive damages when paired with §1083(c)'s grant of §1605A to past claims |
| Whether a heightened "super-clarity" rule should require an extra-clear statement before allowing retroactive punitive damages | No special rule; constitutional objections should be litigated directly | Retroactive punitive damages raise special constitutional concerns—require a super-clear statement | Court: Declined to create a super-clarity rule as unadministrable; refuse to read beyond Congress's clear text |
Key Cases Cited
- Schooner Exchange v. McFaddon, 7 Cranch 116 (1812) (foundational discussion of foreign sovereign immunity and comity)
- United States v. Detroit Timber & Lumber Co., 200 U.S. 321 (1906) (syllabus formality cited for Reporter of Decisions authority)
- Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 (1983) (history of Executive Branch "suggestion of immunity" practice and limits of prior regime)
- Republic of Austria v. Altmann, 541 U.S. 677 (2004) (permitted retrospective withdrawal of foreign-sovereign immunity in certain contexts)
- Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (presumption against retroactive application of statutes absent clear congressional intent)
- Cicippio-Puelo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004) (held FSIA terrorism amendment did not create a federal cause of action prior to NDAA)
- Owens v. Republic of Sudan, 826 F. Supp. 2d 128 (D.D.C. 2011) (district court liability findings and damages determination against Sudan)
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) ("may" connotes judicial discretion in remedial statutes)
- Martin v. Franklin Capital Corp., 546 U.S. 132 (2005) (quoting and applying discretionary language in remedial contexts)