James OWENS, et al., Plaintiffs, v. REPUBLIC OF SUDAN, et al., Defendants.
Civil Action No. 01-2244 (JDB), Civil Action No. 08-1349 (JDB), Civil Action No. 08-1361 (JDB), Civil Action No. 08-1377 (JDB), Civil Action No. 08-1380 (JDB), Civil Action No. 10-356 (JDB), Civil Action No. 12-1224 (JDB)
United States District Court, District of Columbia.
Signed March 23, 2016
174 F. Supp. 3d 242
JOHN D. BATES, United States District Judge
On August 7, 1998, the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, were devastated by the nearly simultaneous detonations of a pair of truck bombs. More than 200 people were killed, including 12 Americans, and thousands were injured. There is no doubt the attacks were the work of al Qaeda, a grisly precursor to the bombing of the U.S.S. Cole and the atrocities of September 11, 2001.
Starting in 2001, various groups of plaintiffs—comprising individuals directly injured in the two embassy bombings, estates of individuals who were killed, and family members of the wounded and dead—filed lawsuits against the Republic of Sudan and the Islamic Republic of Iran, charging those nations with responsibility for the attacks. With respect to Sudan, the only defendant relevant for present purposes, the essence of the plaintiffs’ allega-
Sudan hired U.S. counsel and defended against the first of these lawsuits in its early stages. But even as this Court denied its repeated requests that the suit be dismissed, Sudan stopped paying and communicating with its lawyers, and eventually ignored the case entirely. Sudan never participated at all in the six other cases at issue here. Because the FSIA requires plaintiffs to substantiate their claims with evidence even when a foreign sovereign defaults, in October 2010 the Court held a three-day hearing at which the plaintiffs presented a range of evidence about the bombings and Sudan‘s relationship with al Qaeda. Roughly a year later, the Court issued an opinion in which it concluded that Sudan had indeed provided material support to al Qaeda, was not entitled to sovereign immunity, and was liable for the plaintiffs’ injuries. The Court then referred the hundreds of claims to special masters, who heard evidence relevant to individual plaintiffs’ damages, reported their findings to the Court, and recommended awards. Between March and October of 2014, the Court entered final judgments against Sudan in all seven cases, awarding a total of over $10 billion in compensatory and punitive damages.
One month after the entry of the first of these final judgments, Sudan reappeared with new counsel and began to participate in the litigation. Sudan first filed notices of appeal in all seven cases. Then, in April 2015, it filed with this Court motions to vacate all of the judgments pursuant to
The Court will deny Sudan‘s motions in all respects. Sudan‘s years of total nonparticipation in this litigation, despite full awareness of its existence, cannot be justified as “excusable neglect.” Nor did this Court lack subject-matter jurisdiction for any of the reasons Sudan offers: these bombings were acts of “extrajudicial killing” within the meaning of the jurisdictional provision; there was sufficient evidence of the necessary jurisdictional facts; and the jurisdictional provision extends to claims of emotional harms by immediate family members. Sudan‘s nonjurisdictional arguments also fail: some are without merit, and for those with some heft, Sudan fails to explain what would justify relief from a final judgment.
Perhaps Sudan could have prevailed in these cases, fully or partially, if it had defended in a timely fashion. But, as a result of either deliberate choice or inexcusable recklessness, it did not do so. Either way, Sudan has no one to blame for the consequences but itself.
BACKGROUND
STATUTORY BACKGROUND
Because many of the issues Sudan has raised in its vacatur motions concern the proper interpretation of the Foreign Sovereign Immunities Act (FSIA), and because Congress amended the FSIA sig-
Enacted in 1976, “the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989). The Act provides that federal district courts shall have jurisdiction over civil claims against foreign states “with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of [Title 28] or under any applicable international agreement.”
As originally enacted,
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.
Like the other provisions in
an 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.
Pub. L. No. 104-208, § 589, 110 Stat. 3009, 3009-172 (1996). Although several district courts initially held that the Flatow Amendment created a cause of action against foreign states, in 2004 the D.C. Circuit clarified that the statute “only provides a private right of action against officials, employees, and agents of a foreign state, not against the foreign state itself.” Cicippio-Puleo, 353 F.3d at 1033. After Cicippio-Puleo, plaintiffs suing foreign states under
In the National Defense Authorization Act (NDAA) of 2008, Congress significantly amended the terrorism-related provisions of the FSIA. Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338-44. Section 1605(a)(7) was struck, and an entirely new section,
PROCEDURAL BACKGROUND
James Owens, a U.S. citizen injured in the Dar es Salaam attack, filed the first of the seven cases at issue here on October 26, 2001. Compl. [Owens ECF No. 1]. Owens was eventually joined by several dozen co-plaintiffs, some of whom had been directly injured or killed in the embassy bombings, and some of whom were family members of those directly harmed. They brought suit against Sudan and Iran (as well as Sudan‘s Ministry of the Interior and Iran‘s Ministry of Information and Security), whom they alleged had provided support to the terrorists who carried out the attacks. Am. Compl. [Owens ECF No. 4]. The plaintiffs sought to recover for the physical injuries (or death) inflicted on those present during the attacks and also for the emotional injuries suffered by both those direct victims and their relatives.
Initially, neither Sudan nor Iran appeared in Owens, and in May 2003 the Court entered defaults against them. Order of May 8, 2003 [Owens ECF No. 11]. In February 2004, however, Sudan retained U.S. counsel and began to participate in the litigation. Notice of Appearance [Owens ECF No. 43]. Sudan quickly moved to vacate the default and to dismiss the case, raising a host of arguments, most notably that it was immune under the Foreign Sovereign Immunities Act. Mot. to Dismiss [Owens ECF No. 49]. In March 2005 the Court granted in part and denied in part Sudan‘s motion. Owens v. Republic of Sudan, 374 F. Supp. 2d 1 (D.D.C. 2005) (”Owens I“). Although the Court rejected most of Sudan‘s arguments, it concluded that the plaintiffs’ existing allegations were insufficient to show that the immunity exception in
The plaintiffs did so, Sudan again moved to dismiss, and the Court denied its motion. Owens v. Republic of Sudan, 412 F. Supp. 2d 99 (D.D.C. 2006) (”Owens II“). The applicability of
During these two rounds of motion-to-dismiss proceedings, relations between Sudan and its U.S. counsel deteriorated. In January 2005 Sudan‘s counsel informed the Court that Sudan had “made no payment for any of the legal services provided to date,” and that there had been a “lack of effective communication from the client” on legal issues. Mot. to Withdraw [Owens ECF No. 100] at 2. Counsel‘s difficulties communicating with Sudanese officials persisted, and by late 2007 it appears that Sudan had stopped responding to counsel‘s communications entirely. Mot. to Withdraw [Owens ECF No. 129] at 4. Counsel apparently received an inquiry about the case from a Sudanese official on September 1, 2008, but there were no accompany-ing instructions and no follow-up. Status Report [Owens ECF No. 144] at 3.
Despite the communication difficulties and eventual breakdown, Sudan‘s counsel continued to defend. After the January 2006 denial of its second motion to dismiss, Sudan took an interlocutory appeal to the D.C. Circuit, which affirmed this Court‘s decision in July 2008. Owens v. Republic of Sudan, 531 F.3d 884 (D.C. Cir. 2008) (”Owens III“). As relevant here, Sudan again argued that the plaintiffs had “failed to plead sufficient facts to ‘reasonably support a finding’ that Sudan‘s material support of al Qaeda in the early 1990s caused the embassy bombings in Kenya and Tanzania in 1998.” Id. at 893-94. The D.C. Circuit rejected this argument:
Although Plaintiffs’ allegations are somewhat imprecise as to the temporal proximity of Sudan‘s actions to and their causal connection with the terrorist act and do not chart a direct and unbroken factual line between Sudan‘s actions and the terrorist act, this 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 the foreign state‘s actions and the terrorist act.
Id. at 895 (internal quotation marks omitted). The court concluded that the allegations and reasonable inferences drawn therefrom did indeed demonstrate such a connection. Id.
Within roughly a month of the D.C. Circuit‘s decision, four groups of plaintiffs filed four new lawsuits—Wamai, Amduso, Mwila, and Onsongo—against Iran and Sudan for their alleged roles in the embassy bombings. Sudan did not appear to defend against these actions. And in January 2009 the Court granted Sudan‘s counsel‘s request to withdraw in Owens. Order of Jan-
A new default against Sudan was entered on March 25, 2010. Entry of Default [Owens ECF No. 173]. The FSIA forbids the entry of a default judgment, however, “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.”
In November 2011 the Court issued an opinion that presented its findings of fact and conclusions of law. Owens v. Republic of Sudan, 826 F. Supp. 2d 128 (D.D.C. 2011) (”Owens IV“). As a factual matter, the Court found that Sudan had provided safe harbor, as well as financial, military, and intelligence assistance, to al Qaeda, id. at 139-46, and that “Sudanese government support was critical to the success of the 1998 embassy bombings,” id. at 146. Because this amounted to the provision of material support for acts of extrajudicial killing, under
The work of the special masters took several years, during which time a number of events worth noting occurred. First, the Court‘s November 2011 opinion was translated into Arabic and forwarded to the State Department to be served on Sudan through diplomatic channels. That service was effected in September 2012, when the U.S. embassy in Khartoum delivered the translated opinion to the Sudanese Ministry of Foreign Affairs. See Letter from William P. Fritzlen [Owens ECF No. 282]. Also in 2012, two new sets of plaintiffs entered the picture. One group filed a new case, Opati, the last of the seven at issue here. The other—referred to as the “Aliganga plaintiffs” after Marine Sergeant Jesse Nathanael Aliganga, who was killed in the Nairobi attack—did not file a new case, but instead sought and received permission to intervene in Owens. Order of July 3, 2012 [Owens ECF No. 233]. Because the Opati and Aliganga plaintiffs’ claims arose from the same attacks for which the Court had already found Sudan liable (and Sudan again did not respond), the Court did not revisit the question of liability, and instead referred these plaintiffs’ claims to special masters just as it had done in the other cases. Order of July 31, 2012 [Owens ECF No. 236]; Opati v. Republic of Sudan, 60 F. Supp. 3d 68, 73-75 (D.D.C. 2014).
On March 28, 2014, having received and reviewed the special masters’ reports, the Court issued final judgments awarding hundreds of millions of dollars to the plain-
Shortly after the Court entered the first group of judgments, Sudan at long last arrived on the scene (or, in the case of Owens, returned). On April 28, 2014, new counsel for Sudan entered appearances in Owens, Mwila, and Khaliq, and filed a notice of appeal in each. Sudan did not, however, take any immediate action in the four other cases, in which final judgments had not yet been entered. Only several weeks after judgment was subsequently entered in those cases did Sudan appear, again filing notices of appeal. Similarly, despite reappearing in Owens in April 2014, Sudan took no action with respect to the Aliganga plaintiffs until after judgment was entered in their favor in October 2014.
In April 2015 Sudan retained new counsel and, over the course of several weeks, filed the eight motions to vacate that are presently before the Court. Soon after, Sudan filed its opening brief in the consolidated appeal of these cases before the D.C. Circuit. Br. for Appellants, Owens v. Islamic Republic of Iran, No. 14-5105 (D.C. Cir. May 11, 2015) (“Sudan‘s D.C. Cir. Br.“). Before any of the plaintiffs filed their appellees’ briefs, however, the D.C. Circuit granted their request to stay the appeal pending this Court‘s consideration of the motions to vacate. Order, Owens v. Islamic Republic of Iran, No. 14-5105 (D.C. Cir. July 22, 2015). After all filings related to the motions were received, the Court held a consolidated motions hearing on December 18, 2015. See generally Mot. Hr‘g Tr. [Owens ECF No. 399]. Mindful that these cases might impact foreign relations, the Court also invited the United States to file a statement of interest concerning any of the issues raised by Sudan‘s motions, but the United States declined to file such a statement. Notice by the United States [Owens ECF No. 396].
DISCUSSION
Sudan moves to vacate the eight judgments in these cases pursuant to
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
...
(4) the judgment is void; ... or
(6) any other reason that justifies relief.
RULE 60(B)(1): SUDAN HAS FAILED TO DEMONSTRATE EXCUSABLE NEGLECT
Sudan moves to vacate all of the judgments, except those in Mwila and Khaliq, on the basis of Rule 60(b)(1), which permits relief from a final judgment based on “mistake, inadvertence, surprise, or excusable neglect.” Sudan does not raise this argument in Mwila and Khaliq because relief under Rule 60(b)(1) must be sought not later than a year after the entry of judgment, see
“[E]xcusable neglect” is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P‘ship, 507 U.S. 380, 394 (1993). “[T]he determination of excusable neglect is an equitable matter” that depends on “several relevant factors: the risk of prejudice to the non-movant, the length of delay, the reason for the delay, including whether it was in control of the movant, and whether the movant acted in good faith.” FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C. Cir. 2006) (citing Pioneer, 507 U.S. at 395-397). “[A] party seeking relief on grounds of excusable neglect” must also “assert a potentially meritorious defense.” Id. at 842. The burden of proving the right to relief under Rule 60(b)(1) rests on the movant seeking vacatur. See Gates v. Syrian Arab Republic, 646 F.3d 1, 5 (D.C. Cir. 2011).
On the facts of these cases, shouldering that burden is a Herculean task. Consider first the length of the delay. Even if one looks only at the most recently filed of these cases, Opati, Sudan did not enter an appearance until more than seventeen months after the complaint and summons had been served through diplomatic channels. See Letter from William P. Fritzlen [Opati ECF No. 36] (service effected on March 11, 2013); Notice of Appearance [Opati ECF No. 49] (appearance by Asim A. Ghafoor on August 21, 2014). But given the close relationship among these cases, it is far too generous to Sudan to measure the length of delay with reference to Opati. A much fairer starting point would be the date of Sudan‘s second default in Owens, which the Clerk entered
Of course, turning to the next factor, a delay of this length could be consistent with excusable neglect if the reasons for the delay were sufficiently compelling. The lack of actual knowledge of a lawsuit or filing deadline can be a compelling reason, see 11 Charles Alan Wright et al., Federal Practice and Procedure § 2858, at 333-37 (3d ed. 2012), but Sudan has made no such claim. Nor could it. Sudan was obviously aware of Owens—after its initial default, it actively participated in that case before defaulting a second time. Although Sudan did not participate in any of the other six cases until after the entry of final judgment, it was served with the complaint in each, as well as with the Court‘s 2011 liability opinion. And as Sudan‘s counsel conceded, “there‘s no dispute about service being proper.” Mot. Hr‘g Tr. at 11:20. Thus, Sudan was well aware of these cases and yet did nothing.
Rather than lack of knowledge, Sudan offers two other reasons for its delay, both of which are contained in a declaration from Sudan‘s ambassador to the United States. Sudan first points to its troubled domestic situation, noting that its absence from this litigation
was principally during periods of well-known civil unrest and political turmoil in Sudan, in addition to times of natural disaster wrought by heavy flooding .... The cession of south Sudan and the attendant and protracted diplomatic moves and negotiations completely pre-occupied the Government of Sudan and necessitated the diversion of all meager legal and diplomatic personnel to that process.
Khalid Decl. [Owens ECF No. 367-2] ¶ 4. Sudan also claims an ignorance of American law, citing “a fundamental lack of understanding in Sudan about the litigation process in the United States, in particular surrounding the limits of foreign sovereign immunity and developments in that area of the law.” Id. ¶ 5.
The Court finds neither of these proffered justifications particularly persuasive. As for the first, the Court will not deny that Sudan has experienced serious turmoil over the past decade. Some of that turmoil, however, has been of the Sudanese government‘s own making. See, e.g., Darfur Peace and Accountability Act of 2006, Pub. L. No. 109-344, § 4(1), 120 Stat. 1869, 1873 (expressing Congress‘s sense that “the genocide unfolding in the Darfur region of Sudan is ... [occurring] with the complicity and support of the National Congress Party-led faction of the Government of Sudan“); Sudan Accountability and Divestment Act of 2007, Pub. L. No. 110-174, §§ 7-8, 121 Stat. 2516, 2522 (expressing Congress‘s sense that “the Government of Sudan ... continue[s] to oppress and commit genocide against people in the Darfur region and other regions of Sudan” and “refus[es] to allow the implementation of a peacekeeping force in Sudan“).2 But
In relying on its domestic troubles, Sudan attempts to liken these cases to FG Hemisphere Associates, in which the D.C. Circuit held that the district court abused its discretion by denying Rule 60(b)(1) relief to the Democratic Republic of Congo (DRC). See 447 F.3d at 839-43. But the factual gulf between that case and these is unbridgeably wide. In FG Hemisphere Associates, the DRC was a mere two months late in responding to a motion to execute, some of which delay was attributable to the movant‘s failure to translate the motion. Id. at 839-41. True, the D.C. Circuit relied in part on the fact that the DRC “was plainly hampered by its devastating civil war,” id. at 841, but that hardly suggests that Sudan‘s domestic upheaval is a sufficient justification here. Despite its devastating civil war, “the DRC secured counsel only one day after receiving its first actual notice, filing its motion to quash less than four weeks later.” Id. at 840. Sudan, by contrast, did absolutely nothing for years, while plainly aware of the litigation. The DRC‘s relatively minor lateness, rectified by prompt efforts to respond, is a world apart from Sudan‘s years of knowing inaction.
Nor is the Court persuaded by Sudan‘s alleged lack of understanding of U.S. litigation. As a general matter, it is true, courts should be mindful that foreign sovereigns might not be familiar with our judicial system or might misconceive the scope of their immunity. See Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1551 n. 19 (D.C. Cir. 1987). But see 11 Wright et al., supra, § 2858, at 352-55 & n.26 (noting that “ignorance of the law” is generally not grounds for Rule 60(b)(1) relief). Indeed, it was in part for this reason that the Court vacated Sudan‘s first default in Owens. See Owens I, 374 F. Supp. 2d at 8-10. But the fundamental-ignorance card cannot convincingly be played a second time, especially not after hiring sophisticated U.S. legal counsel, as Sudan did in 2004. Sudan‘s more specific claim that it was ignorant of “the limits of foreign sovereign immunity and developments in that area of the law,” Khalid Decl. ¶ 5, is hard to understand. The claim would make sense if an early decision in Owens had indicated that Sudan was immune, but then a later development that Sudan was conceivably unaware of, such as the 2008 FSIA amendments, had undermined that immunity. But that is not what happened. Although the Owens I decision identified deficiencies in the plaintiffs’ allega-
In light of the foregoing, the Court is by no means persuaded that Sudan has behaved in good faith. That is, the Court is not convinced that Sudan would have participated in the prejudgment proceedings if only circumstances had been more favorable. Viewing the entire history of the litigation, it seems more likely that Sudan chose (for whatever reason) to ignore these cases over the years, changing course only when the final judgments saddled it with massive liability. A defendant who disputes a federal court‘s jurisdiction is free to take this approach, letting a default judgment be entered and raising his objection only in subsequent proceedings. See Practical Concepts, 811 F.2d at 1547. But he must accept the consequences of that choice: “If he loses on the jurisdictional issue ... his day in court is normally over; as a consequence of deferring the jurisdictional challenge, he ordinarily forfeits his right to defend on the merits.” Id. To be clear, the Court is not calling into question the current good faith of the Sudanese officials who have now decided to defend these cases. But the question is not whether Sudan now wishes to participate fully—or now wishes it had done so all along—but rather whether it was acting in good faith during the years of inaction. Given how long-lasting and complete that inaction was, and how weak Sudan‘s proffered explanations are, the Court cannot conclude that Sudan acted in good faith.
Turning to the final factor, vacatur would pose a real risk of prejudice to the plaintiffs, Sudan‘s blithe assertion to the contrary notwithstanding. There is, to start, the time and money the plaintiffs have spent litigating these cases in Sudan‘s absence, much of which will have been wasted if Sudan now gets a mulligan. For example, much of the plaintiffs’ efforts preparing for and conducting the 2010 liability hearing will have been for naught—a serious waste that could have been avoided by Sudan‘s timely participation. Sudan‘s suggestion that the hearing will not have been wasted because it also addressed Iran‘s misconduct, and the default judgment against Iran will remain, is unpersuasive. Throwing half a ripe apple in the garbage may be less wasteful than tossing the whole thing, but wasteful it remains. More troubling than the pointless loss of the plaintiffs’ resources, however, is the fact that the delay would surely make it harder for them to prove their case going forward. “[L]itigation is better conducted when the dispute is fresh and additional
In sum, Sudan has failed to carry its burden of showing that its failure to participate was the result of excusable neglect. The Court doubts that Sudan‘s non-participation was a matter of neglect at all—as opposed to a matter of choice, whether well-considered or reckless. But if indeed neglect, then that neglect—so complete and so enduring—was inexcusable. (Accordingly, the Court need not address whether Sudan has “assert[ed] a potentially meritorious defense.” FG Hemisphere Associates, 447 F.3d at 842.) Insofar as they rely on Rule 60(b)(1), therefore, Sudan‘s motions to vacate the judgments are denied.
Equally unavailing is Sudan‘s argument that its years of domestic turmoil justify vacating the judgments under Rule 60(b)(6), which permits vacatur for “any other reason that justifies relief.” Sudan makes this argument most clearly in Mwila and Khaliq, see, e.g., Mem. Supp. Mot. to Vacate [Mwila ECF No. 121-1] (“Sudan‘s Mwila Mem.“) at 13-15, though it makes a perfunctory version in the other cases as well, see, e.g., Sudan‘s Aliganga Mem. at 35-36. The Court is hard pressed to see how this argument is anything but a rehash of Sudan‘s Rule 60(b)(1) argument for excusable neglect. With respect to Mwila and Khaliq, therefore, it is not only unpersuasive but time-barred—for Rule 60(b)‘s “provisions are mutually exclusive, and thus 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).” Pioneer, 507 U.S. at 393.
Moreover, Sudan points to no precedent for Rule 60(b)(6) relief under circumstances like these. Sudan‘s primary reliance on Ungar v. Palestine Liberation Organization, 599 F.3d 79 (1st Cir. 2010), is puzzling. The defendants in that case, forsaking any argument for excusable neglect, “freely admit[ted] that the default judgment resulted from their deliberate strategic choice,” but “insist[ed] that they [had] had a good-faith change of heart” and wished to present their defenses, circumstances they thought justified relief under Rule 60(b)(6). 599 F.3d at 85-86. Sudan has made no admission of a deliberate choice, and doing so would flatly contradict its primary claim of excusable neglect, as Ungar itself teaches. See id. at 85 (“willfulness ... is directly antagonistic to a claim premised on any of the grounds specified in [Rule 60(b)(1)]“). What does Sudan mean, then, when it says that it too has had a “good-faith change of heart“? Sudan‘s Mwila Mem. at 13 (quoting Ungar, 599 F.3d at 86). Isn‘t Sudan‘s position that its heart has been in the right place all along, just not its resources? In any event, even if Sudan‘s Rule 60(b)(6) argument could be fit into Ungar‘s mold without contradicting Sudan‘s claim of excusable
Here, the Court does not rely on the categorical rule disapproved in Ungar. It instead rejects Sudan‘s Rule 60(b)(6) argument because, first, it appears simply to reiterate Sudan‘s (already rejected) Rule 60(b)(1) argument. And to the extent it can be construed as a distinct argument, it is simply unconvincing and unsupported by factually apposite precedent. Relief under Rule 60(b)(6) requires the existence of “extraordinary circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 536 (2005). “In a vast majority of the cases finding that extraordinary circumstances do exist so as to justify relief, the movant is completely without fault for his or her predicament; that is, the movant was almost unable to have taken any steps that would have resulted in preventing the judgment from which relief is sought.” 12 James Wm. Moore et al., Moore‘s Federal Practice § 60.48[3][b] (3d ed. 2015). For the reasons already discussed, Sudan cannot possibly be deemed “completely without fault“—not for its own domestic turmoil, and certainly not for its predicament in this litigation.
RULE 60(B)(4): THE BOMBINGS WERE ACTS OF EXTRAJUDICIAL KILLING
Although Rule 60(b) speaks of grounds on which a court “may” grant relief from a final judgment, relief from a void judgment under Rule 60(b)(4) is not discretionary. Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1179 (D.C. Cir. 2013). “Under [Rule 60(b)(4)], the only question for the court is whether the judgment is void; if it is, relief from it should be granted.” Austin v. Smith, 312 F.2d 337, 343 (D.C. Cir. 1962). In this circuit, a judgment is void within the meaning of Rule 60(b)(4) “whenever the issuing court lacked [subject-matter] jurisdiction.” Bell Helicopter, 734 F.3d at 1180.3 And because under the FSIA subject-matter jurisdiction exists where immunity is absent, and is absent where immunity exists, Sudan can raise a range of arguments concerning its sovereign immunity under Rule 60(b)(4).
The first and most expansive of these jurisdictional arguments is that the embassy bombings were not acts of “extrajudicial killing” within the meaning of the FSIA. Section 1605A provides, in relevant part, that a foreign state is not immune from a suit
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 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.
“Extrajudicial killing” is a defined term in the FSIA. For purposes of
the term “extrajudicial killing” means 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 (codified at
In Sudan‘s view, however, these decisions are all mistaken. For, according to Sudan, there is more to the term “extrajudicial killing” than the statutory definition in the TVPA. Specifically, “[t]he language and context of the definition of ‘extrajudicial killing’ in the TVPA indicates that Congress intended to adopt the international law meaning of that term.” Sudan‘s D.C. Cir. Br. at 19. And that “international law meaning,” Sudan continues, does not encompass bombings like these for two reasons: it covers only killings by state actors, and it does not include “broad-based terrorist attack[s].” Id. at 16, 22; see also Consolidated Reply Mem. [Owens
The Court parts ways with Sudan at the first step. Section 3 of the TVPA defines “extrajudicial killing” the way it defines “extrajudicial killing.” It does not secretly adopt by reference some different definition that is broader or narrower than the definition in its text. “Statutes are law, not evidence of law,” much less evidence of meaningfully different law. Matter of Sinclair, 870 F.2d 1340, 1343 (7th Cir. 1989). (And it is hard to see why Sudan spends pages and pages establishing its “international law meaning” premise unless it thinks that meaning is advantageously different from the statutory definition.) It may be, as some legislative history suggests, that the drafters of the TVPA believed that their statutory definition was consistent with the international law understanding of the term “extrajudicial killing.” See S. Rep. No. 102-249, at 6 (1991); H.R. Rep. No. 102-367, at 4 (1991). But that justifies, at most, turning to international law to help clarify any ambiguous terms in the statutory definition—not turning to international law instead of the statutory definition. If, for instance, international law did not in fact always require extrajudicial killings to be “deliberated,” it would nonetheless be the case that only “deliberated” killings are actionable under the TVPA and
The fact that the second sentence of the definition excludes killings that are lawful “under international law” does not alter this conclusion. Indeed, it shows that when Congress wants to incorporate international law directly into U.S. law, without further distillation or qualification, it says so. The FSIA itself provides another example, eliminating foreign sovereign immunity in certain cases where “rights in property taken in violation of international law are in issue.”
Hence, whatever the international law definition of “extrajudicial killing,” there is no requirement under the FSIA that the killers be state actors.5 Section 1605A of the FSIA says that “extrajudicial
The absence of a state-actor requirement is also consistent with
What of Sudan‘s contention that, even apart from the state-actor issue, a terrorist bombing just cannot be an extrajudicial killing? Even if the Court accepted Sudan‘s “international law meaning” premise, Sudan has not provided an authoritative international law definition of “extrajudicial killing” that clearly excludes these bombings. Sudan says that under international law “extrajudicial killing” means “summary execution,” Sudan‘s D.C. Cir. Br. at 19, but offering a synonym does not advance the analysis. Sudan‘s papers nowhere identify exactly what it is that puts the bombings outside the scope of either term. At the motions hearing, Sudan‘s counsel had to concede (what seems obvious to the Court) that it cannot be the mere fact that the weapon used was a bomb. Mot. Hr‘g Tr. at 32:10-11. Counsel also conceded (what again seems obvious) that it cannot be the mere fact of multiple victims. Id. at 32:15-17. The bottom-line objection seemed to be that a bombing of this sort “is indiscriminate in its killing of individuals.” Id. at 32:21-24; see also id. at 35:11-14 (contending that “[e]xtrajudicial
The Court is unconvinced, however, that this characteristic precludes an act of killing from being an act of “extrajudicial killing” within the meaning of
In addition to its unpersuasive argument about what
As to the basic point, the Court cannot disagree with Sudan:
Although the foregoing suffices to explain the Court‘s conclusion that the bombings were acts of extrajudicial killing under
This reading was hardly hidden from Congress. Indeed, in 2000, Congress passed a statute that provided a compensation scheme for certain individuals who “held a final judgment for a claim or claims brought under section 1605(a)(7) of title 28,” as well for plaintiffs who had “filed a suit under such section 1605(a)(7) on” five specific dates. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 2002(a)(2)(A), 114 Stat. 1464, 1542. One of the cases specifically identified by filing date concerned the death of a U.S. Marine in the 1984 bombing of the U.S. embassy annex in East Beirut. See id. (listing “July 27, 2000“); Wagner v. Islamic Republic of Iran, 172 F.Supp.2d 128 (D.D.C. 2001) (filed July 27, 2000). And, as the accompanying Conference Report noted, two of the covered
In light of this history, the 2008 FSIA amendments take on added significance. In those amendments, Congress deleted
One final point regarding “extrajudicial killing.” In some of its motions to vacate (though not in its reply or D.C. Circuit brief), Sudan makes a cryptic argument, the gist of which seems to be that plaintiffs who did not die cannot sue under
In sum, the Court remains convinced that these bombings qualify as acts of “extrajudicial killing” within the meaning of
RULE 60(B)(4): THE PLAINTIFFS’ CLAIMS WERE TIMELY FILED
Subsection (b) of
An action may be brought or maintained under this section if the action is commenced, or a related action was commenced under section 1605(a)(7) (before the date of the enactment of this section) ... 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.
A. Section 1605A(b) Is Not Jurisdictional
First, the Court is unpersuaded that the statute of limitations in
In arguing otherwise, Sudan leans heavily on a statement in a D.C. Circuit opinion that
On appeal in Van Beneden was a 2010 decision in which the district court had held that an action against Libya was untimely under
B. The Actions Were Timely
Even if
Related actions.—If an action arising out of an act or incident has been timely commenced under section 1605(a)(7) of title 28, United States Code, ... any other action arising out of the same act or incident may be brought under section 1605A of title 28, United States Code, 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 [Jan. 28, 2008].
Pub. L. No. 110-181, § 1083(c)(3), 122 Stat. at 343 (codified at
Sudan argues that these three actions are not “related” to Owens because a “related action” must be filed by the same
The Court rejects Sudan‘s “same plaintiffs” argument. First and foremost, there is no such requirement in the text of § 1083(c)(3), which requires only that the actions arise from the same incident. Nor did Simon require identical plaintiffs: the sentence Sudan quotes comes from a discussion of the options available to plaintiffs with “cases that were pending under
Sudan‘s fallback argument is that, even if identical plaintiffs are not required, these three actions cannot be deemed “related” to Owens because at the time they were commenced Owens no longer had any
Although the foregoing discussion adequately explains the timeliness of these three actions, some additional discussion of Khaliq may be justified, given the complicated history of that case and Sudan‘s effort to single it out. See Sudan‘s D.C. Cir. Br. at 55-57. Rizwan Khaliq and Jenny Lovblom originally filed a
Sudan thinks this must not be allowed—that a plaintiff who missed the § 1083(c)(2) deadline should not be able to “evade [it] simply by filing an action ‘related’ to his (or someone else‘s) pending action,” as this would “effectively nullif[y] § 1083(c)(2).” Reply at 17. But Sudan is simply incorrect that the original Khaliq plaintiffs had to proceed through § 1083(c)(2) or not at all. As the D.C. Circuit has observed, the 2008 NDAA gave plaintiffs with pending
In sum, the Court will not vacate the Khaliq, Aliganga, or Opati judgments under Rule 60(b)(4) on timeliness grounds. The Court is unconvinced timeliness under
RULE 60(B)(4): THERE WAS SUFFICIENT EVIDENCE TO SUPPORT JURISDICTION
Sudan‘s next attack on the judgments concerns the sufficiency of the evidence introduced at the October 2010 hearing. It is too late for Sudan to use this argument to attack the Court‘s merits determination. “A judgment is not void ... simply because it is or may have been
A. The Nature of the Jurisdictional Inquiry
In much federal litigation, the sufficiency of the evidence presented is unrelated to jurisdiction, because jurisdiction does not turn on the existence of facts. Federal question jurisdiction under
The FSIA is a more complicated font of jurisdiction. Its various exceptions to immunity rest (at least to some extent) on factual predicates, and so a foreign sovereign “defendant may challenge either the legal sufficiency or the factual underpinning of an exception.” Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). Thus, for instance, in a case brought under
Not without reason, Sudan points to Kilburn v. Socialist People‘s Libyan Arab Jamahiriya, 376 F.3d 1123 (D.C. Cir. 2004), as an example of how these principles apply to the present litigation. See Sudan‘s Aliganga Mem. at 12-13. The plaintiff in Kilburn sued Libya under
Kilburn thus appears to confirm Sudan‘s view that whether the Court had subject-matter jurisdiction to enter the judgments in these cases depended in part on whether the plaintiffs introduced enough evidence showing that Sudan provided material support to al Qaeda that was causally connected to the bombings. And the Court will ultimately explain why, assuming this premise is correct, there was sufficient factual support. See infra pp. 275-81. Before doing so, however, the Court will explain why more recent D.C. Circuit decisions persuade the Court that at least some of the plaintiffs in these cases are impervious to Sudan‘s factual attack on jurisdiction.
In Agudas Chasidei Chabad of U.S. v. Russian Federation, 528 F.3d 934 (D.C. Cir. 2008), the D.C. Circuit addressed the FSIA‘s expropriation exception to immunity. That exception removes immunity in any case
in which [A] rights in property taken in violation of international law are in issue and [B][1] that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or [2] that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States ....
Section 1605A(a) contains a two-part structure much like the one Chabad identified in
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 or re
sources 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.
On this reading, a court has jurisdiction only if the three requirements in subsection (a)(2) are actually met. If, say, it turned out that neither the claimant nor the victim in fact had the necessary U.S. status, the court would lack jurisdiction. But not so for subsection (a)(1). The question with respect to subsection (a)(1) is not whether the foreign state actually provided material support for an act of extrajudicial killing, it is merely whether the plaintiff has made a plausible claim that it did. See Chabad, 528 F.3d at 940. To analogize to a provision outside the FSIA, subsection (a)(1) is read like the Tucker Act, which gives the Court of Federal Claims “jurisdiction to render judgment upon any claim against the United States founded ... upon any express or implied contract with the United States.”
This reading of
Simon thus reveals why Kilburn required not just a non-frivolous claim but actual evidence that Libya caused the torture, extrajudicial killing, and hostage taking: because the jurisdictional and merits inquiries did not overlap. Kilburn, recall, predated the 2008 amendments. Jurisdiction might have existed under
Chabad and Simon suggest a different jurisdictional inquiry here, however—at least with respect to some of the plaintiffs. The substantive law relied on by many of the plaintiffs here was the federal cause of action in
On this reading, there is no doubt that the Court had subject-matter jurisdiction over the claims brought under
Not only is this view of subject-matter jurisdiction under
But the claims of the foreign family-member plaintiffs are another matter. Because those plaintiffs could not invoke
B. The Sufficiency of the Evidence
The fundamental question Sudan‘s challenge poses is whether the plaintiffs adduced sufficient admissible evidence that Sudan provided “material support or resources” that “caused” the bombings. See Sudan‘s D.C. Cir. Br. at 30 (contending that plaintiffs “did not prove that any ‘material support or resources’ provided by Sudan ‘caused’ the Embassy bombings.” (quoting
Assessing whether the record evidence was sufficient requires, of course, a proper understanding of the parties’ re
Although the record contains much else as well, the opinions of the plaintiff‘s three expert witnesses are enough to satisfy that burden. Expert opinions are often used in terrorism cases and can be of critical importance. See, e.g., Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 705 (7th Cir. 2008) (en banc) (“[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.“); United States v. Benkahla, 530 F.3d 300, 309-10 (4th Cir. 2008); Simpson, 470 F.3d at 361; United States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005); Kilburn, 376 F.3d at 1132; Smith ex rel. Smith v. Islamic Emirate of Afghanistan, 262 F.Supp.2d 217, 228-32 (S.D.N.Y. 2003). Standard forms of direct evidence are for various reasons difficult, if not impossible, to obtain in terrorism cases. Terrorist groups and their state sponsors generally wish to hide their activities. See Kilburn, 376 F.3d at 1129
The easiest way to see the weight of the expert evidence here is simply to reproduce the experts’ opinions. First were the conclusions of Evan F. Kohlmann, provided during live testimony at the October 2010 hearing:
[A]l-Qaeda would not have been able to carry out the 1998 East Africa bombings had it not had a presence in Khartoum, Sudan. The presence, the safe haven that al-Qaeda had in the Sudan was absolutely integral for its capability of launching operations not just in Kenya, but in Somalia, in Eritrea, in Libya. Without this base of operations, none of this would have happened.
Al-Qaeda did not have the capability of bringing in resources to that extent into this area. It did not have a place to base its leadership or its operatives. It did not have a ready supply of passports, of infrastructure. Sudan was the base for which almost everything that al-Qaeda did in the space between 1992 and 1998 leads back to. Without the support given by the Sudanese government, the attempted assassination attempt on Hosni Mubarak, the involvement in Somalia, the embassy bombings, none of this would have happened.
. . . .
[Sudanese government support] was integral [to al-Qaeda‘s ability to launch the two embassy attacks]. Again, 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. If you look, it‘s quite clear because of the fact that the vast majority of planning and preparation that went into the al-Qaeda cell in Nairobi took place between the years of 1991 and 1997. The vast majority of that was done by al-Qaeda operatives transiting back
and forth between Nairobi from Khartoum. And you can take the words of al-Qaeda operatives themselves. They label the cell in Nairobi as the key way station that allowed them back and forth into Somalia. Without Sudan, there never would have been Nairobi, there would have never been a Somalia, there would have never been any of this. It was absolutely essential, integral.
Evidentiary Hr‘g Tr., Oct. 28, 2010 [Owens ECF No. 213] at 317-18.
Next, Dr. Lorenzo Vidino submitted an expert report on “Sudan‘s State Sponsorship of al Qaeda” that arrived at the following conclusions:
The twin attacks on the United States Embassies in Nairobi, Kenya, and Dar Es Salaam, Tanzania, were part of a decade-long plan conceived by Osama Bin Laden‘s terrorist organization, al Qaeda, to attack US interests in the Middle East and East Africa. Since the end of the 1980s, Bin Laden had worked on creating a worldwide terrorist organization whose main aim was to strike at American targets. From 1991 to 1996, Osama Bin Laden and his organization were sheltered and supported by the Sudanese government in Sudan. During these five years, al Qaeda and the Sudanese government established a deeply intertwined, symbiotic relationship, which required cooperation on many fronts. Early during its stay in Sudan, al Qaeda publicized its intent to attack American interests. This was demonstrated by several fatwas and by attacks on US contractors in Riyadh, Saudi Arabia, an attempted attack on US soldiers in Aden, Yemen, as they were en route to Somalia to carry out Operation Restore Hope, and al Qaeda‘s infamous campaign against the US forces in Somalia during the Operation Restore Hope. The Sudanese government even facilitated attempted terrorist attacks in the United States. The Sudanese government can not claim that it allowed Bin Laden to stay in Khartoum but did not know of and support his goals to attack US interests.
During the years that the Sudanese government sheltered al Qaeda, the organization flourished both financially and militarily. It developed critical ties with several terrorist organizations and trained its operatives who subsequently carried out increasingly sophisticated attacks throughout the world.
The material support that the Sudanese government provided was indispensable, as al Qaeda could not have achieved its attacks on the US Embassies in 1998 if it had not operated in a country that not only tolerated, but actually actively assisted and participated in al Qaeda terrorist activities, despite knowing al Qaeda‘s intent to attack US interests.
Vidino Report [Amduso ECF No. 288-5] at 34-35. (Vidino‘s report was introduced as Exhibit V during the October 2010 evidentiary hearing. See Evidentiary Hr‘g Tr., Oct. 26, 2010 [Owens ECF No. 212] at 142-43.)
Finally, there was the opinion of Steven Simon, who both submitted an expert report and provided live testimony. In his report he concluded:
The Republic of Sudan supplied al Qaeda with important resources and support during the 1990s knowing that al Qaeda intended to attack the citizens, or interests of the United States. This support encompassed the safe haven of the entire country for
bin Laden and the top al Qaeda leadership. This enabled bin Laden and his followers to plot against the US and build their organization free from US interference. Sudanese shelter enabled Bin Laden to create training camps, invest in—and use—banking facilities, create business firms to provide cover for operatives, generate funds for an array of terrorist groups, provide official documents to facilitate clandestine travel, and enjoy the protection of Sudan‘s security service against infiltration, surveillance and sabotage.
Simon Report [Amduso ECF No. 288-3] at 5-6. (Simon‘s report was introduced as Exhibit W-2 during the October 2010 evidentiary hearing. See Evidentiary Hr‘g Tr., Oct. 28, 2010, at 343-44.) And in his live testimony Simon concluded:
I think it‘s fair to say that in the absence of the safe haven provided by Sudan to al-Qaeda, that the planning for and the execution of the attacks against those embassies would have been vastly more complicated. I can‘t say that they would have been impossible, but it‘s difficult to see how, in the absence of the active support and freedom of action that Bin Laden enjoyed in the Sudan, and the fact that much of the preoperational activities were directed from Khartoum, that the attacks could have been carried out with equal success.
Evidentiary Hr‘g Tr., Oct. 28, 2010, at 344.
It is important to note that the foregoing are the experts’ ultimate conclusions—that is, their expert opinions. Sudan spills a great deal of ink attacking as inadmissible hearsay particular statements the experts made in the course of explaining the bases for their opinions. See, e.g., Sudan‘s Aliganga Mem. at 16-17. But the admissibility of statements along the way is irrelevant if—as the Court concludes—the ultimate opinions themselves are sufficient.17 For it is perfectly clear that an expert‘s opinion need not be based on evidence that is itself admissible.
would be a crippling limitation because experts don‘t characteristically base their expert judgments on legally admissible evidence; the rules of evidence are not intended for the guidance of experts. 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.
Boim, 549 F.3d at 704; see also Damrah, 412 F.3d at 625 (“‘Given the secretive nature of terrorists, the Court can think of few [non-hearsay] materials that experts in the field of terrorism would rely upon.‘” (quoting district court)). Thus, Sudan‘s contention that the experts’ “conclusions are inadmissible because they are based on
Sudan‘s fallback argument, which makes its first appearance in Sudan‘s reply brief, is that Kohlmann and Vidino should not have been accepted as experts in the first place. Reply at 11-13. (Sudan does not, presumably because it cannot, question the expertise of Simon.) The proper occasion for such an argument was not Sudan‘s reply brief, nor even its opening motion for vacatur—it was October 2010. See
In sum, the consistent and admissible opinions of these three experts were sufficient to satisfy the plaintiffs’ burden of producing evidence that Sudan provided “material support” that “caused” the embassy bombings. Because Sudan offered nothing—neither evidence nor argument—in response, it failed to carry its “burden of persuasion to establish the absence of the factual basis by a preponderance of the evidence.” Simon, 812 F.3d at 147 (internal quotation marks omitted). The Court therefore had subject-matter jurisdiction to decide the plaintiffs’ claims.
Although the Court sees no need to review all of the other evidence the plaintiffs introduced or to respond to all of Sudan‘s much-belated evidentiary objections, it will address one further issue, on the chance that its views might assist the D.C. Circuit. One significant piece of evidence the plaintiffs introduced was a transcript of testimony given in an earlier federal criminal trial by Jamal al-Fadl, a former al Qaeda member who had “served as an intermediary between al Qaeda and the Sudanese intelligence service.” Owens IV, 826 F.Supp.2d 128, 140 (D.D.C. 2011); see Evidentiary Hr‘g Tr., Oct. 26, 2010, at 136-37 (introduction of al-Fadl‘s prior testimony). Sudan argues that al-Fadl‘s prior testimony was inadmissible in its entirety because it was hearsay. Sudan‘s Aliganga Mem. at 18; Reply at 7-9. That is incorrect.
To understand why Sudan is wrong, it is important to recall the nature of the 2010 proceeding. It was not an adversarial trial. It was an evidentiary hearing to satisfy the FSIA provision that prohibits entry of a default judgment “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.”
In the context of FSIA default proceedings, sworn prior testimony is just as admissible as a sworn affidavit. An affidavit in which Jane swears, “I saw X,” is not meaningfully different from a transcript of a trial in which Jane took the stand and swore, “I saw X.” That is why prior testimony can support a motion for summary judgment just as well as an affidavit can. E.g., Int‘l Distrib. Corp. v. Am. Dist. Tel. Co., 569 F.2d 136, 138 (D.C. Cir. 1977) (“[E]ither an affidavit or a certified transcript of prior testimony may provide the basis for summary judgment.“). Of course, the content of either type of submission could in theory be inadmissible, but they are both equally admissible forms of evidence. See 11 James Wm. Moore et al., Moore‘s Federal Practice § 56.91[1]-[3] (3d ed. 2015) (discussing the distinction between admissible content and admissible form). That is just as true in FSIA default judgment proceedings as in Rule 56 summary judgment proceedings.
Sudan‘s attack on al-Fadl‘s prior testimony is a misguided objection to its form, not its content. If Sudan had shown up in 2010 and gone to trial, it could have demanded that the plaintiffs put al-Fadl on the stand (or fit his prior testimony into a hearsay exception)—but it didn‘t. In light of Sudan‘s default, al-Fadl‘s prior testimony was a perfectly appropriate form of evidence. By the same logic, Sudan‘s hearsay objections to the deposition testimony of Essam al-Ridi and the plea hearing testimony of Ali Mohamed also fail. See Sudan‘s Aliganga Mem. at 19; Reply at 14. The consideration of all three sets of testimony was proper. And any objection to aspects of the content of that testimony should have—as is true of so many of Sudan‘s arguments—been raised long ago.
In sum, the Court had jurisdiction to hear claims brought under
§ 1605A
Sudan‘s final jurisdictional argument is that
The short answer to this argument is that it is foreclosed by precedent. In fact, it is the Cicippio-Puleo case that forecloses it. That action was brought by family members of Joseph J. Cicippio, Sr., who had been taken hostage and held for years by Hezbollah. The plaintiffs sued Iran under
Cicippio-Puleo‘s conclusion, moreover, is correct as a matter of statutory interpretation. Sudan thinks not, in part (as noted earlier) because it thinks “personal injury” means only physical bodily injury. But “personal injury” does not usually receive so narrow an interpretation. Indeed, four years before
Nor is the Court persuaded by Sudan‘s argument that the only possible “claimant” apart from the “victim” directly injured by the incident is a legal representative of that “victim.” Reply at 15-16; Sudan‘s D.C. Cir. Br. at 46-48. No doubt “claimant” can encompass the legal representative of a direct victim who has been killed or incapacitated. But it seems strange to limit “claimant” to only that meaning, given that in the cause of action in
RULE 60(B)(6): THE COURT WILL NOT VACATE FOREIGN FAMILY MEMBERS’ JUDGMENTS
Sudan‘s next argument is that, even if
Sudan completely fails, however, to explain why these nonjurisdictional arguments, even if correct, would justify relief under Rule 60(b)(6). As noted earlier, that provision, which follows the more specific circumstances identified in subsections (b)(1) through (b)(5), allows a court to vacate a final judgment for “any other reason that justifies relief.” “[R]elief under Rule 60(b)(6) ... requires a showing of ‘extraordinary circumstances.‘” Gonzalez v. Crosby, 545 U.S. 524, 536, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); accord Kramer v. Gates, 481 F.3d 788, 792 (D.C.Cir.2007) (noting “that Rule 60(b)(6) should be only sparingly used” and requires movants to “clear a very high bar to obtain relief” (internal quotation marks omitted)). Sudan provides no authority suggesting that the mere existence of a nonjurisdictional legal error is such an extraordinary circumstance. Precedent suggests the contrary. In Gonzalez, for instance, the Supreme Court said that a district court‘s (assumedly) “incorrect” dismissal, based on circuit precedent later held to be erroneous, did not amount to extraordinary circumstances under Rule 60(b)(6). 545 U.S. at 536. And the D.C. Circuit has noted that “a dispute over the proper interpretation of a statute does not qualify as an
If the mere fact of nonjurisdictional error can ever be the basis for Rule 60(b) relief, it should be limited to instances of clear or obvious error, or (perhaps) where the controlling law has changed after the entry of judgment. See Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir. 1991) (relief based on “mistake” of law under Rule 60(b)(1) “is available only for obvious errors of law“); Alvestad v. Monsanto Co., 671 F.2d 908, 913 (5th Cir.1982) (similar); Ctr. for Nuclear Responsibility, Inc. v. U.S. Nuclear Regulatory Comm‘n, 781 F.2d 935, 940 (D.C.Cir.1986) (correction of legal errors permitted under Rule 60(b)(1), at least during the appeal period, “where the controlling law of the circuit had changed between the time of the judgment and the time of the motion“).20 (Even under the more forgiving Rule 59(e) standard, relief need not be granted absent “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C.Cir.2012) (emphasis added) (internal quotation marks omitted).) There is no suggestion here of any change in controlling law. And Sudan has not identified clear or obvious errors.
Start with Sudan‘s contention that
To put the point another way, imagine if
That brings us to Sudan‘s second argument: that the foreign family members failed to state viable IIED claims under D.C. law. Sudan argues that D.C. law would not allow recovery for IIED unless these plaintiffs had been present at the time of, or at least had contemporaneously perceived, the outrageous conduct (i.e., the bombings). But Sudan cannot point to a decision by the D.C. Court of Appeals that actually imposes a bright-line presence requirement. True, Sudan can and does point to a D.C. Circuit decision that reads D.C. tort law in this way: Pitt v. District of Columbia, which said that “under D.C. tort law, a family member can only recover for IIED if she was ‘present’ when the extreme or outrageous conduct took place.” 491 F.3d 494, 507 (D.C.Cir.2007). But with all due respect, this Court does not believe
One might wonder, the Court recognizes, whether it makes sense to apply the demanding Rule 60(b) standard to Sudan‘s nonjurisdictional arguments, given that Sudan filed timely notices of appeal. That is, one might think that if Sudan will get to raise these nonjurisdictional arguments in its direct appeal of the judgments, then for efficiency‘s sake this Court should give them plenary consideration in the first instance. But, for one thing, there is simply no authority suggesting, nor does Sudan contend, that the Court has discretion to apply anything but the Rule 60(b) standard here, regardless of what concern for judicial efficiency might suggest. Moreover, Sudan‘s nonjurisdictional arguments will likely not receive plenary consideration on appeal either. Arguments not raised in the district court are generally forfeit on appeal. E.g., Benoit v. U.S. Dep‘t of Agric., 608 F.3d 17, 21 (D.C.Cir.2010). If the D.C. Circuit agrees that Sudan‘s default was inexcusable, this forfeiture rule would seem to apply. Hence, this Court does not believe it is reviewing any of Sudan‘s arguments under a standard more demanding than what Sudan will face on appeal.
RULE 60(B)(6): THE COURT WILL NOT VACATE THE PUNITIVE DAMAGES AWARDS
Sudan also challenges the judgments in Wamai, Amduso, Onsongo, and Opati insofar as they included awards of punitive damages, which Sudan says were not available to any plaintiffs. Punitive damages were not available to foreign family-member plaintiffs, Sudan argues, because the only mechanism for obtaining punitive damages under the FSIA is the cause of action in
But Sudan has once again completely failed to explain why these arguments, even if persuasive, come within the ambit of Rule 60(b)(6). Like the arguments discussed in the preceding section of this opinion, these are claims of nonjurisdictional legal error. And for the reasons explained in that section, error by itself—unless, perhaps, it is obvious—is not an extraordinary circumstance. The fact that one of Sudan‘s arguments has a constitutional component does not alter the analysis. Constitutional arguments are generally subject to forfeiture and waiver just like any other legal argument, see, e.g., Al Bahlul v. United States, 767 F.3d 1, 8-10 (D.C.Cir.2014) (en banc) (forfeiture of ex post facto argument); United States v. Behrman, 235 F.3d 1049, 1051-52 (7th Cir.2000) (guilty pleas can waive constitutional arguments), and the Court is aware of no authority suggesting that claims of constitutional error render final judgments more susceptible to reopening under Rule 60(b)(6).
One might wonder whether the sheer magnitude of the punitive damages awarded here—billions of dollars—is an extraordinary circumstance. But, although Sudan mentions the size of the awards, see Sudan‘s Amduso Mem. at 25, it does not argue that this is relevant to Rule 60(b)(6)—perhaps because there is no authority to that effect. This Court has found no precedent suggesting that the magnitude of a damages award can itself be an extraordinary circumstance that would justify relief from the judgment. Consistent with the general thrust of Rule 60(b), courts applying Rule 60(b)(6) have largely focused on flaws in the adjudicatory process—such as fraud, lack of actual notice, or a party‘s disability—not on the nature or scope of the relief awarded. See 12 James Wm. Moore et al., Moore‘s Federal Practice § 60.48[3][b], [4][a] (3d ed. 2015). Once again, then, Sudan has failed to persuade the Court that its arguments—however strong they might have been if presented at the appropriate time—justify vacating the judgments.
In fairness to Sudan, however, and in case it might assist the D.C. Circuit (if it reviews this issue), the Court must acknowledge the apparent strength of Sudan‘s underlying arguments about the unavailability of punitive damages. Take first Sudan‘s argument regarding punitive damages under
The Court does not see such a clear statement. The plaintiffs argue that because ”
The plaintiffs also point to Arnold v. Islamic Republic of Iran, 787 F.Supp.2d 37, 42 (D.D.C.2011), which discusses the retroactive effect of the 2008 amendments. Pls.’ Surreply at 2. Arnold did say that the punitive damages provision in
In connection with this dispute over retroactivity, Sudan and the plaintiffs spar over the applicability of the Ex Post Facto Clause. Sudan says the retroactive imposition of punitive damages might very well violate that provision of the Constitution. See Landgraf, 511 U.S. at 281 (“Retroactive imposition of punitive damages would raise a serious constitutional question.“). The plaintiffs contend, however, that a foreign sovereign like Sudan “cannot avail itself of the U.S. Constitution to object to punitive damages.” Pls.’ Surreply at 3. The plaintiffs raise an interesting question: do foreign sovereigns have standing (so to speak) to object when Congress exceeds its Article I authority? On the one hand, the D.C. Circuit has held that a foreign sovereign is not a “person” protected by the Fifth Amendment, observing along the way that “legal disputes between the United States and foreign governments are not mediated through the Constitution.” Price v. Socialist People‘s Libyan Arab Jamahiriya, 294 F.3d 82, 96-97 (D.C.Cir.2002); see also Lori Fisler Damrosch, Foreign States and the Consti-
The Court has equally serious doubt about whether the foreign family-member plaintiffs could receive punitive damages. As Sudan notes, the Court‘s only explanation for its award of punitive damages was
In these cases, however, there remains the problem of retroactivity. If state-law punitive damages are indeed now available against foreign sovereigns, it is the 2008 NDAA that made this so, by creating a new jurisdictional provision,
In sum, the Court now has significant doubt about whether any of the punitive damages awards in these cases involving conduct predating the 2008 NDAA were proper. It is not certain they were improper, however—the parties’ briefing of these complex issues is rather scant—and to return to the critical point, Sudan has provided no authority suggesting that such error alone is a proper basis for vacating the judgments. Perhaps the D.C. Circuit will expand the range of circumstances in which legal error justifies vacatur, cf. Ctr. for Nuclear Responsibility, Inc., 781 F.2d at 940 (leaving open whether “to allow corrections of substantive legal errors where no ... change in the law of the circuit has occurred” under Rule 60(b)(1)), but this Court will not do so on its own. Even with its doubts, then, the Court will not vacate the punitive damages awards, which at most entail nonjurisdictional legal error not amounting to an “extraordinary circumstance” within the ambit of Rule 60(b)(6).
CONCLUSION
For all of the foregoing reasons, the Court will deny Sudan‘s motions to vacate the judgments in each of these cases. See
Gerald STONE, Plaintiff,
v.
Loretta LYNCH, Attorney General, Department of Justice, Defendant.
Case No. 15-cv-01745 (CRC)
United States District Court, District of Columbia.
Signed March 29, 2016
Notes
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; if, however, in any case wherein death was caused, the law of the place where the action or omission occurred provides, or has been construed to provide, for damages only punitive in nature, the foreign state shall be liable for actual or compensatory damages measured by the pecuniary injuries resulting from such death which were incurred by the persons for whose benefit the action was brought.