Rux v. Republic of SudanRux v. Republic of Sudan
Before WIDENER and DUNCAN, Circuit Judges, and HENRY F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation.
Affirmed in part and dismissed in part by published opinion. Judge DUNCAN wrote the opinion, in which Judge WIDENER and Judge FlOYD joined.
OPINION
DUNCAN, Circuit Judge:
In this action for damages brought against it by relatives of American sailors killed in the terrorist bombing of the U.S.S. Cole (“Plaintiffs“), the Republic of Sudan (“Sudan“) appeals an order of the district court largely denying its motion to dismiss. On appeal, Sudan argues both that the district court erred in denying its motion to dismiss for lack of subject matter jurisdiction and also that this court should exercise pendent appellate jurisdiction over, and reverse, the district court‘s denial of its motion to dismiss for lack of personal jurisdiction and improper venue. Sudan also argues that this court should exercise pendent appellate jurisdiction over and consider for the first time its motion to dismiss for lack of standing, an issue on which the district court deferred action. Because we find that the district court‘s exercise of subject matter jurisdiction was proper and that there is no basis to exercise pendent appellate jurisdiction over the remaining issues, we affirm the district court‘s denial of Sudan‘s motion to dismiss for lack of subject matter jurisdiction and dismiss the remainder of Sudan‘s appeal.
This case arises out of the October 12, 2000, bombing of the U.S.S. Cole in which seventeen American sailors were killed. The bombing, alleged in the Amended Complaint to have been planned and executed by the terrorist organization Al-Qaeda, occurred while the ship was berthed in Aden Harbor in Yemen. Plaintiffs, consisting of more than fifty surviving family members of the sailors who were killed, brought this action to recover for damages resulting from their deaths.
The Foreign Sovereign Immunities Act (“FSIA“),
Plaintiffs filed their original complaint on July 16, 2004, and subsequently amended it several times. They effected service of process on Sudan on December 16, 2004. When Sudan failed to answer within the prescribed time, the Clerk of Court entered default against it. Plaintiffs then moved for default judgment, which the district court scheduled for hearing. Before the date of the hearing, Sudan filed a Motion to Vacate Entry of Default and Cancel Evidentiary Hearing. In that motion, Sudan argued that the district court lacked personal jurisdiction because of insufficient process and service of process. Following a hearing on Sudan‘s motion, the district court vacated the entry of default with Plaintiffs’ consent but held that Sudan had waived its right to contest personal jurisdiction and that Plaintiffs had effected proper service on Sudan.
On August 3, 2005, Sudan filed its Motion to Dismiss Plaintiffs’ Amended Complaint with Prejudice. In that motion, Sudan argued (1) that the court lacked subject matter jurisdiction under FSIA because Plaintiffs failed to plead sufficient jurisdictional facts; (2) that Sudan lacked sufficient minimum contacts with Virginia to support personal jurisdiction; (3) that venue was improper in the Eastern District of Virginia; (4) that Plaintiffs’ process was insufficient; (5) that Plaintiffs’ service of process was insufficient; and (6) that Plaintiffs had failed to state a claim on which relief could be granted for various reasons, including lack of standing.
On August 26, 2005, the district court entered the order, which is at issue in this appeal, denying most of Sudan‘s motion to dismiss. In that order, the district court held: (1) that Plaintiffs had pleaded sufficient facts to support subject matter jurisdiction under
In this appeal, Sudan argues that the district court erred in denying its motion to dismiss for lack of subject matter jurisdiction under FSIA, an issue that is subject to interlocutory review. Sudan also asks us to exercise pendent appellate jurisdiction to review the district court‘s rulings on the issues of personal jurisdiction and venue. Sudan finally asks us to exercise pendent appellate jurisdiction over and decide the issue of standing, even though the district court has not yet ruled on it. We consider each of Sudan‘s arguments in turn.
We first address Sudan‘s argument that Plaintiffs failed to allege sufficient facts in the Amended Complaint to establish subject matter jurisdiction under FSIA.1 “The existence of subject matter jurisdiction under [FSIA] ... is a question of law” that we review de novo. Eckert Int‘l, Inc. v. Gov‘t of the Sovereign Democratic Republic of Fiji, 32 F.3d 77, 79 (4th Cir.1994). For reasons that follow, we reject Sudan‘s argument.
FSIA provides that, subject to certain limited exceptions, “a foreign state shall be immune from the jurisdiction of the courts of the United States.”
A foreign state‘s challenge3 to subject matter jurisdiction in an action brought pursuant to the terrorist exception to FSIA may be based on either (1) the inadequacy of the pleadings as a matter of law; or (2) a denial of the allegations in the complaint. Phoenix Consulting, Inc., 216 F.3d at 40. In the first instance, the foreign state does not challenge the plaintiff‘s allegations of fact; in the second, the district court must resolve the factual dispute in ruling on the motion to dismiss. Id. Sudan‘s motion to dismiss here was based solely on the legal sufficiency of the pleadings. In other words, this appeal presents no contested issues of fact and we accept Plaintiffs’ allegations as true for purposes of determining jurisdictional sufficiency. See Price v. Socialist People‘s Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C.Cir.2002); Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 440 n. 3 (D.C.Cir.1990).
The standard we apply in assessing Sudan‘s challenge “is similar to that of Rule 12(b)(6), under which dismissal is warranted if no plausible inferences can be drawn from the facts alleged that, if proven, would provide grounds for relief.” Price, 294 F.3d at 93. Plaintiffs need not set out every fact on which jurisdiction under
26. Defendant Republic of Sudan, by and through officials, employees or agents acting knowingly and willfully, used funds and other assets belonging to the Republic of the Sudan to provide material support and resources to Osama bin Ladin and to Al Qaeda, the perpetrators of the bombing of the U.S.S. Cole referenced herein above on October 12, 2000 in port in Yemen, which bombing resulted in the wrongful deaths of the plaintiffs’ decedents. The provision of material support or resources was engaged in by officials, employees and agents of the Republic of the Sudan while such officials, employees or agents were acting within the scope of their office, employment or agency.
27. The bombing of the U.S.S. Cole was an act of international terrorism knowingly and deliberately aided and abetted by Defendant Republic of the Sudan. The providing to Osama bin Ladin of safe harbor and shelter during a period of time up to and including 1996 and to other members of Al Qaeda through 2001, created liability, on the part of Defendant Republic of the Sudan. Defendant Republic of the Sudan provided material support and resources to some of the actual perpetrators of the bombing of the U.S.S. Cole. The Republic of Sudan aided and abetted the actual perpetrators in carrying out such acts of terrorism. Agents, servants or employees of the Republic of the Sudan knew that the acts of Osama bin Ladin were acts of terrorism designed to cause death or serious injury to the victims of its terrorism. Agents, servants or employees of the Republic of the Sudan participated in the providing of the shelter to Osama bin Ladin and to Al-Qaeda, the perpetrators of the acts complained of herein. Among the acts providing support or resources were the following: (a) the Gum Arabic Company, Ltd, a company operating in the Republic of Sudan was jointly owned by the government of Sudan and Osama bin Ladin; (b) use of a diplomatic pouch to send explosive materials belonging to Osama bin Ladin for Al Qaeda outside the Republic of Sudan; (c) the establishment of a bank primarily financed by Osama bin Ladin, the al-Shamal Islamic Bank in Khartoum, which bank is jointly owned by the Republic of the Sudan; (d) Omar Hassan Ahmad al Bashir, president of the Republic of Sudan, authorized the entry into the Republic of Sudan by Al Qaeda operatives and gave Al Qaeda special authority to avoid paying taxes and duties ordinarily due to the Republic of the Sudan; (e) Osama bin Ladin founded Wadi-al-Aqiq, a trading company which was allowed unrestricted shipping by the Sudanese government; (f) the Sudanese government allowed Osama bin Ladin and Al Qaeda to operate training camps within the Republic of Sudan for the purpose of training terrorists including training such people in how to manufacture bombs and explosives; (g) the Republic of Sudan failed to comply with UN Security Council Resolutions 1044, 1054 and 1096, which were passed in 1996, and as of April, 2000 continued to harbor various terrorist groups including but not limited to Al Qaeda; (h) the Sudanese government allowed Al Qaeda operative Jamal Ahmed al-Fadl to ship four crates of explosive from Sudan to Yemen, the site of the bombing of the USS Cole; (i) Defendant Republic of the Sudan ... sent its minister of foreign affairs, Mustafa Osman Ismail in May 2003 to the United States to issue a public apology for the prior harboring and assisting of terrorists including but not limited to Al Qaeda and Osama bin Ladin, which apology was aired on CSPAN ....
29. The attack on October 12, 2000 against the U.S.S. Cole while in a harbor in the waters of Yemen was part of a decade-long plan of international terrorism directed at the United States of America and its citizens that was conceived and implemented pursuant to an international conspiracy of terrorists, usually referred to as Al Qaeda, which conspiracy was joined and supported by Defendant Republic of the Sudan. Al Qaeda could not have existed or planned its acts of terrorism, including an act directed at an American Naval vessel, without the support of state sponsors of terrorism including Defendant Republic of the Sudan. Between 1991 and 1996 Defendant Republic of the Sudan provided shelter and a safe haven for the operations of Al Qaeda‘s leader, Osama bin Ladin. After 1996, Defendant continued to render support and shelter [to] other Al-Qaeda operatives including Yemeni militant terrorists who planned the attack on the U.S.S. Cole. 30. Commencing in 1991, Osama bin Ladin and his Al Qaeda organization were welcomed in the Republic of the Sudan by the leader of the National Islamic Front Haza al Turabi and the President of the Republic of the Sudan, Omar Bashir, who provided entry to and departure from the Republic of the Sudan for members of Al Qaeda without the normal customs inspections and payment of fees to which all other persons were subjected.
Id. ¶¶ 26, 27, 29, 30. Sudan argues that these allegations do not satisfy the three jurisdictional requirements of
A. The sufficiency of Plaintiffs’ allegations of “material support or resources” by a state sponsor of terrorism4
Sudan argues that Plaintiffs’ allegations of “material support or resources” under
the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe-houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel ..., and transportation.
Sudan focused much of its argument on the parameters of the term “safehouses.” As we have set forth above, Plaintiffs allege that Sudan provided Al-Qaeda safe haven and a base of operations from which to conduct its terrorist operations. Am. Compl. ¶27(a), (c), (d), (e), (f) (alleging that Sudan allowed entry of Al-Qaeda operatives into Sudan; provided financial support to Al-Qaeda in the form of joint business ventures and relief from taxes and duties; and allowed Al-Qaeda to operate terrorist training camps in Sudan). Sudan argues that these allegations are not sufficient to state material support under the “safehouses” provision because the term should be limited to discrete buildings or structures. We disagree.
The underlying purpose of
Moreover, the only other court to have construed comprehensively the scope of the term “safehouses” reached a similar conclusion. In rejecting a nearly identical argument by Sudan in an action for damages arising out of Al-Qaeda‘s 1998 bombings of the U.S. embassies in Kenya and Tanzania, the district court for the District of Columbia held that “[i]nsofar as the government of the Republic of Sudan affirmatively allowed and/or encouraged al-Qaeda and Hizbollah to operate their terrorist enterprises within its borders, and thus provided a base of operations for the planning and execution of terrorist attacks . . . Sudan provided a `safehouse’ within the meaning of
In addition, Plaintiffs’ allegations meet the “financial services” and “transportation” elements of the definition of material support as well. As explained above, we will construe each in accordance with its ordinary meaning. See Smith, 508 U.S. at 228.
The term “financial services” normally means the function of providing a service relating to finance or financiers. Webster‘s Ninth New Collegiate Dictionary 463, 1076 (definitions of financial and service). Plaintiffs meet this definition by alleging that Sudan formed a trading company and a bank with Al-Qaeda, and that it granted members of Al-Qaeda special tax and customs allowances. Each of these actions on the part of Sudan provided services of a financial nature to Al-Qaeda. Am. Compl. ¶ 27(a), (c), (d).
The term “transportation” commonly means “an act, process, or instance” of conveying “passengers or goods” from one place to another. Webster‘s Ninth New Collegiate Dictionary 1254. Plaintiffs meet this definition by alleging that Sudan allowed Al-Qaeda to use its diplomatic pouch, authorized entry of members of Al-Qaeda into the country, allowed a company run by Osama bin Laden unrestricted shipping, and allowed a member of Al-Qaeda to ship explosives to Yemen. Am. Compl. ¶ 27(b), (d), (e) and (f). Each of these alleged actions involve Sudan‘s exercise of control over the movement of passengers or goods from one place to another.
Sudan further argues that Plaintiffs failed to allege that a Sudanese official acting within the scope of his or her governmental authority provided the alleged material support, as required by Plaintiffs easily satisfy this requirement with their allegation that “Omar Hassan Ahmad al Bashir, president of the Republic of Sudan, authorized the entry into the Republic of Sudan by Al-Qaeda operatives and gave Al-Qaeda special authority to avoid paying taxes and duties ordinarily due to” Sudan. Am. Compl. ¶ 27(d) (emphasis added). At times relevant to these proceedings, President Bashir was “an official, employee, or agent” of Sudan by virtue of his elected position and the broad governmental authority he wielded under the constitution of Sudan in force at the time. See generally Constitution of the Republic of Sudan (repealed 2005), available at http:// www.sud an.net/government/constitution/english.html. Moreover, President Bashir‘s alleged actions fell “within the scope of his . . . office, employment, or agency” because each involved the exercise of the governmental authority vested in the office of president by Sudan‘s constitution. As noted above, Plaintiffs allege that President Bashir authorized the entry of Al-Qaeda operatives into Sudan and granted those operatives special tax considerations. Am. Compl. ¶ 27(d). The authority to control both immigration and taxation in Sudan were constitutionally allocated to the federal government. Constitution of the Republic of Sudan arts. 110(c), 110(j), 113(b) (repealed 2005). The power of the federal government under that document was exercised by the President of Sudan, along with a Council of Ministers who were appointed by the President. Constitution of the Republic of Sudan arts. 42, 47, 49 (repealed 2005). Based on this governmental structure and allocation of power, we conclude that President Bashir‘s alleged actions were within the scope of his office and, therefore, that the actions set forth in the Amended Complaint satisfy Sudan argues that Plaintiffs failed to allege sufficient facts to draw a causal connection, for pleading purposes, between the alleged provision of material support to Al-Qaeda and the deaths caused by the bombing of the U.S.S. Cole. For the reasons that follow, we must reject this argument as well. Jurisdictional causation under Sudan argues that Plaintiffs’ allegations do not satisfy jurisdictional causation because they contain factual gaps that break the causal chain between Sudan‘s support of Al-Qaeda and the bombing of the U.S.S. Cole. Sudan appears to advocate the same but-for standard for jurisdictional causation that the D.C. Circuit confronted in Kilburn, discussed below. See id. at 1127-29. (rejecting Libya‘s argument that In Kilburn, the D.C. Circuit interpreted the “caused by” language of Plaintiffs’ allegations satisfy this standard. As set forth above, Plaintiffs make both general and specific allegations regarding Sudan‘s involvement in the bombing. Am. Compl. ¶¶ 26, 27, 29, 30. Plaintiffs first make general allegations that Sudan “aided and abetted” the bombing with knowledge that Al-Qaeda had designed the attack to cause death or serious injury. Id. Plaintiffs then detail specific allegations that Sudan allowed Al-Qaeda to use its diplomatic pouch to ship explosives, allowed Al-Qaeda operatives to enter the country; granted Al-Qaeda relief from taxes, allowed Al-Qaeda to operate terrorist training camps in the country that provided instruction on the use of explosives, and allowed an Al-Qaeda operative to ship explosives from Sudan to Yemen, the site of the bombing. Id. ¶ 27(b), (d), (f), (h). Plaintiffs’ allegations are somewhat imprecise as to the temporal proximity of Sudan‘s actions to and their causal connection with the bombing of the U.S.S. Cole. Although the allegations describe actions on the part of Sudan that could have supported and facilitated the bombing, they do not chart a direct and unbroken factual line between Sudan‘s actions and the bombing. However, such imprecision is not fatal for purposes of jurisdictional causation so long as the allegations, and the reasonable inferences drawn therefrom, demonstrate a reasonable connection between Sudan‘s actions and the bombing. See Kilburn, 376 F.3d at 1128; Owens, 412 F.Supp.2d at 111. The allegations do so here by describing how Sudan provided Al-Qaeda a base of operations to plan and prepare for the bombing, and provided operational support for the attack. Accordingly, we find no merit in Sudan‘s contention that Plaintiffs failed to allege sufficient facts to support the jurisdictional causation element of In summary, we find that Plaintiffs alleged sufficient facts to create subject matter jurisdiction under Sudan next asks this court to exercise pendent appellate jurisdiction over the district court‘s denial of its motion to dismiss for lack of personal jurisdiction, which is a non-final order that is not otherwise immediately appealable. Sudan argues that we should do so to promote the efficient use of judicial resources by foregoing the litigation that would potentially result from delaying review of this issue until after final judgment is entered in the district court. We must decline to exercise such jurisdiction, however. It borders on the axiomatic that, subject to certain limited exceptions, our appellate jurisdiction is limited to final orders from the district courts. Sudan relies on a line of authority from the District of Columbia Circuit that suggested that the exercise of pendent appellate jurisdiction is appropriate based on “considerations of fairness or efficiency.” Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C.Cir.1996); see also Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1026 (D.C.Cir.1997). However, the Supreme Court appears to have foreclosed such considerations in Swint. The Court there rejected an efficiency argument similar to Sudan‘s by reasoning that such arguments “drift away from the statutory instructions Congress has given to control the timing of appellate proceedings.” Swint, 514 U.S. at 45. Moreover, since Swint, this court has consistently limited its application of pendent appellate jurisdiction to the two circumstances outlined therein. See, e.g. United States v. Bundy, 392 F.3d 641, 649 (4th Cir.2004); Altman v. City of High Point, 330 F.3d 194, 207 n. 10 (4th Cir. 2003); Antrican v. Odom, 290 F.3d 178, 191 (4th Cir.2002); Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 615 (4th Cir.2001); United States v. North Carolina, 180 F.3d 574, 581 n. 4 (4th Cir.1999); Jenkins v. Medford, 119 F.3d 1156, 1159 n. 2 (4th Cir.1997) (en banc); Taylor v. Waters, 81 F.3d 429, 437 (4th Cir.1996). The First through Eleventh Circuits have similarly limited their application of pendent appellate jurisdiction. See Kilburn, 376 F.3d at 1134 n. 7 (collecting cases). We are constrained by the language of the Supreme Court as well as our own precedent from recognizing efficiency considerations as a basis for the exercise of pendent appellate jurisdiction. Because Sudan has not argued that jurisdiction is proper under either element of Swint, we decline to review the denial of its motion to dismiss for lack of personal jurisdiction and dismiss that portion of its appeal. Sudan next argues that we should exercise pendent appellate jurisdiction over its claim that Plaintiffs lack standing based on the Death on the High Seas Act (“DOHSA“), Contrary to Sudan‘s argument, our decision not to exercise jurisdiction over this issue does not threaten to render our ruling on the FSIA issue advisory. We would issue an advisory opinion were we to pass “judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests.” United States v. Fruehauf, 365 U.S. 146, 157 (1961). No such danger exists here. We have decided the issue of subject matter jurisdiction based on a concrete set of facts in the context of a live controversy between the parties. The fact that Plaintiffs’ case might eventually succumb to a dispositive defect, such as lack of standing, does not alter the concrete nature of the dispute before us today or the propriety of our ruling. Because no basis exists to exercise jurisdiction over Sudan‘s standing argument, we decline review and dismiss that portion of its appeal. Although the issue is presented obliquely in its brief, Sudan seeks appellate review of the district court‘s ruling that venue for this action was proper in the Eastern District of Virginia. An order denying a motion to dismiss for improper venue, however, is interlocutory and not immediately appealable. La. Ice Cream Distribs., Inc. v. Carvel Corp., 821 F.2d 1031, 1033 (5th Cir.1987). Therefore, we lack appellate jurisdiction over this issue. Sudan does not argue that we should exercise pendent appellate jurisdiction over this issue and we discern no reason to do so. Therefore, we decline to exercise jurisdiction to review the district court‘s order regarding venue and dismiss that portion of Sudan‘s appeal. In light of the foregoing, we affirm the district court‘s denial of Sudan‘s motion to dismiss for lack of subject matter jurisdiction and dismiss the remainder of Sudan‘s appeal for lack of appellate jurisdiction. AFFIRMED IN PART AND DISMISSED IN PART.B. The sufficiency of Plaintiffs’ allegations of the provision of material support by an official, employee or agent of Sudan while acting within the scope of his or her governmental authority
C. The sufficiency of Plaintiffs’ allegations of jurisdictional causation
III.
IV.
V.
VI.
Notes
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 (as defined in section 2339A of title 18) 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.