Can the Foreign Sovereign Immunities Act apply retroactively so that plaintiffs can seek punitive damages against a foreign state for terrorist activities that were carried out prior to the enactment of the current version of the statute?
This case asks the Supreme Court to decide whether it can retroactively apply portions of the Foreign Sovereign Immunities Act (FSIA) to impose punitive damages on a foreign nation. Monicah Opati seeks to recover punitive damages from the Republic of Sudan for its role in al Qaeda’s 1998 embassy bombings. Opati contends that under Republic of Austria v. Altmann, the Act’s immunity exception for foreign states applies retroactively, thereby reaching the al Qaeda bombings even though they occurred prior to the current statute’s enactment. The Republic of Sudan counters that Altmann does not apply here; and, the FSIA’s plaint text does not allow plaintiffs such as Opati to recover punitive damages retroactively under the Act’s immunity exception for foreign states. This case’s outcome implicates the amount of deference given to political branches and could change the balance between plaintiffs suing under FSIA and defendant foreign states.
Questions as Framed for the Court by the Parties
Whether, consistent with the Supreme Court’s decision in Republic of Austria v. Altmann, the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages under 28 U.S. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute.
In August 1998, al Qaeda, a terrorist organization, launched bomb attacks outside the United States embassies in Kenya and Tanzania. Owens v. Republic of Sudan at 762. These attacks killed many U.S. citizens who were government employees and contractors. Id.
Enacted in 1976, the Foreign Sovereign Immunities Act (“FSIA”) granted foreign states immunity from the jurisdiction of U.S. courts in civil actions, subject to several exceptions. Id. at 763. In 1996, Congress added an exception by passing the Antiterrorism and Effective Death Penalty Act (“AEDP”), 28 U.S.C. § 1605(a)(7). Id. at 763–64. The AEDP removes immunity and grants courts jurisdiction over claims of monetary damages for personal injury or death caused by state officials and agents who supported acts of extrajudicial killing within the course of their employment. Id. Later, Congress passed the Flatow Amendment, providing U.S. nationals the right to sue and to seek punitive damages from officials of foreign states that sponsored terrorism. Id. at 764. In 2008, Congress repealed and replaced AEDP Section 1605(a)(7) with Section 1083 of the National Defense Authorization Act (“NDAA”), 28 U.S.C. § 1605A, creating a federal cause of action through which certain groups of U.S. nationals are entitled to sue state officials for personal injury or death caused by extrajudicial killing and to recover punitive damages. Id. at 765. The NDAA helps plaintiffs access the new federal cause of action in two ways: first, it allows plaintiffs with pending claims to refile those claims under the new Section 1605A(c) if they have been harmed by the prior lack of a federal cause of action under Section 1605(a)(7); and second, it enables plaintiffs to refile a “related action” within 60 days from the date of the original judgment or from when the NDAA was enacted, whichever is later if those claims were brought under the Flatow Amendment. Id.
In 2001, victims of the embassy attacks sued the Republic of Sudan and the Republic of Iran for allegedly providing al Qaeda with a safe harbor and military training, respectively. Id. at 762. Many of these victims brought suit under the FSIA in a single case before the United States District Court for the District of Columbia (the “District Court”). Id. at 762, 765–66. The victims were able to sue Sudan because the FSIA does not grant immunity to a foreign state that, like Sudan, has been designated as a “sponsor of terrorism” under the U.S. State Department regulations in a civil action brought by U.S. terrorist victims. Id.
Sudan did not appear in court to contest the lawsuit, so the District Court entered a default order in May 2003. Id. at 766. Sudan then responded by filling a motion to dismiss the case. Id. The District Court then vacated the default order and partially dismissed the case based on statements from the U.S. Ambassador to Sudan and an FBI agent stating that Sudan did not assist al Qaeda in the attacks. Id. at 766. The plaintiffs later filed an amended complaint, and again, Sudan moved to dismiss. Id. This time, the District Court rejected Sudan’s motion. Id. On appeal, the United States Court of Appeals District of Columbia Circuit (the “D.C. Circuit Court”) affirmed the District Court’s decision. Id.
In July 2012, the Opati plaintiffs brought a timely action against Sudan as a “related action” with respect to the prior lawsuits under the NDAA Section 1083(c)(3). Id. After Sudan failed to appear again, the District Court entered default orders. Id. In 2014, the District Court entered final judgments against Sudan, awarding more than $10.2 billion, of which nearly $4.3 billion consists of punitive damages. Id. at 767–68. Sudan appealed these judgments while moving to vacate the default orders. Id. at 768. The District Court rejected Sudan’s motion to vacate, and Sudan again appealed, combining with its prior appeals against the final judgments. Id. On July 28, 2017, the D.C. Circuit Court affirmed the District Court’s rulings but vacated all punitive damages awards. Id. at 769. Opati petitioned to the Supreme Court, which granted certiorari on June 28, 2019. Id.
APPLICATION OF PRECEDENT
Petitioners, Monicah Opati and James Owens (collectively “Opati”), argue that the Foreign Sovereign Immunities Act (“FSIA”) applies retroactively to allow the recovery of punitive damages against the Respondent Republic of Sudan. Brief for Petitioners, Monicah Opati and James Owens at 22. Opati acknowledges that in Landgraf v. USI Film Productions, the Supreme Court upheld the presumption against retroactivity which prevents laws from applying retroactively to cover past conduct. Id. Opati contends, however, that the Supreme Court’s decision in Republic of Austria v. Altmann controls the FSIA’s interpretation, finding that the presumption against retroactivity does not apply to the FSIA. Id. at 22–23. Furthermore, Opati explains that the Altmann Court announced that when deciding a case, the text’s current version controls, absent any contradictions. Id. Here, Opati contends that the FSIA’s current text should control, and this text recognizes the long-held belief that foreign sovereign immunity is only granted as a “matter of comity and grace.” Id. at 23–24. In other words, she posits, it is a privilege that the United States may extend to foreign nations. Id. at 23–24. Moreover, Opati emphasizes that the current version of the FSIA therefore incorporates the political branches’ judgments on foreign relations. Id. at 23–25. For instance, she cites to Bank Markazi v. Peterson where the Court explained that questions of foreign affairs—such as whether to grant or deny immunity—are best decided by congressional authority. Id. at 25–26. She explains that the judiciary has a long-standing tradition of deferring to the political branches’ judgment in matters relating to foreign sovereign immunity. Id. Opati asserts that the lower court failed to defer to the political branches when it rejected the application of Altmann. Id. Furthermore, Opati argues that Landgraf and its presumption are inapplicable here as foreign sovereign immunity is a matter of comity and grace and is not a constitutional right, unlike the private rights at issue in Landgraf. Id. at 27–28. Therefore, Opati contends that Landgraf’s presumption against retroactivity should not apply here. Id.
Respondent, the Republic of Sudan, counters that the courts may not award punitive damages under Section 1605A(c) because Landgraf precludes plaintiffs from retroactively asserting punitive damages under the FSIA’s terrorism exception. Brief for Respondents, Republic of Sudan at 30–31. Sudan argues that in Landgraf, the Court upheld the longstanding presumption against retroactivity and that this Court should not deviate from that precedent. Id. Sudan adds that absent clear congressional intent, the Court has never before “read a statute substantially increasing the monetary liability of a private party to apply to conduct occurring before the statute’s enactment.” Id. at 35. It explains that this is what Opati is asking the Court to do now. See id. Opati adds that under Landgraf, the Court distinguished between statutes that affect substantive rights and those that affect jurisdiction or procedure. Id. Sudan contends that a statute affecting substantive rights could not be applied retroactively to pre-enactment conduct while a statute affecting procedural or jurisdictional issues could be applied in such a way. Id. at 35–36. Sudan employs this distinction to argue that Altmann does not apply to the present case. Id. at 37. It explains that in Altmann, the Court only referred to the FSIA’s jurisdictional provisions when holding that the presumption against retroactivity does not apply. Id. Here, Sudan argues that the provision at issue is either substantive or neither substantive nor procedural, thereby making Altmann inapplicable. See id. at 36–37. In this way, Sudan asserts that the lower court was correct in rejecting Altmann. Id.
THE FSIA’S PLAIN LANGUAGE
Opati argues that the FSIA should apply retroactively because Congress explicitly provided for such application in the statute. Brief for Petitioners at 44. First, Opati asserts that Congress explicitly provided for retroactive application in Section 1083(c)(1) by stating that “[t]he amendments made by this section shall apply to any claim arising under section 1605A…” Id. at 44–45. Opati explains the claim here was brought under the terrorism exception to immunity in Section 1605A. Id. at 45. Second, Opati contends that in Section 1083(c)(2) titled “Prior Actions,” Congress provided further instructions that the FSIA can apply retroactively. Id. In this section, it states that certain actions brought under Section 1605(a)(7) prior to the FSIA’s enactment, and remain pending in any form shall “be given effect as if the action had originally been filed under section 1605A(c).” Id. Furthermore, Opati points out that Congress waived certain defenses, such as res judicata, collateral estoppel, and limitation periods, to ensure that the statute may apply retroactively. Id. Third, in Section 1083(c)(3) titled “Related Actions,” Opati asserts that Congress allowed for litigants to bring claims after the enactment of the 2008 NDAA based on events that occurred prior to January 2008. Id. at 46. Furthermore, Opati explains that Congress explicitly allowed for these new claims “arising out of the same act or incident” as existing claims under Section 1605(a)(7) to be brought under Section 1605A. Id. Therefore, Opati contends that the statute’s plain language allows for the retroactive application of the FSIA to conduct occurring prior to 2008. Id.
Sudan counters by arguing that the lower court was correct when it found that Congress did not explicitly authorize retroactive application in the 2008 NDAA Amendment. Brief for Respondent at 41. Sudan contends that to authorize retroactivity, Congress must make a “clear statement” that is “so clear that it could sustain only one interpretation.” Id. Sudan asserts that although the statute allows retroactive application in certain circumstances, Section 1083(c) lacks a clear statement from Congress allowing punitive damages to apply retroactively. Id. at 41–42. Furthermore, Sudan notes that Section 1605A itself does not contain any clear statement from Congress allowing for retroactive application. Id. at 42. For instance, Sudan points to Section 1083(c)(1) which states that “the amendments made by this section [i.e., §1083 as a whole] shall apply to any claim arising under section 1605A…” but says nothing about retroactivity. Id. at 42–43. Sudan also counters Opati’s use of Section 1083(c)(2) titled “Prior Actions,” arguing that it does not refer to punitive damages and therefore misses the clear congressional statement necessary for plaintiffs to obtain such damages for pre-enactment conduct. Id. at 43–44. Additionally, Sudan counters Opati’s assertions regarding Section 1083(c)(3) titled “Related Actions,” contending that the section only allows for a litigant to bring a related action under Section 1065A arising from the same act or incident as an action already filed under Section 1605(a)(7) or the Flatow Amendment. Id. at 44. Sudan explains that this Section makes no clear statement regarding the availability of punitive damages in a newly filed related action. Id. Therefore, Sudan argues that nothing in the statute expressly allows for retroactive application of punitive damages. Id.
Sudan argues that the District Court did not have subject-matter jurisdiction over Opati’s claims. Brief for Respondent at 20–21. First, Sudan argues that the District Court does not have jurisdiction because the embassy bombings of 1998 were not an act of “extrajudicial killing” under Section 1605A(a)(1). Id. at 21–22. Sudan asserts that under international law, extrajudicial killing is a term of art that refers to a “summary execution by a state actor,” and that the embassy bombings do not fall within this definition. Id. at 23. Second, Sudan argues that the District Court lacked jurisdiction because it did not have causation under Bolivarian Republic of Venezuela, which held that jurisdiction facts must be established prior to a United States court’s assertion of subject-matter jurisdiction over a foreign nation. Id. at 27. Finally, Sudan argues that the District Court did not have jurisdiction because they filed their action four years after the statute of limitations under Section 1605A(b) had passed. Id. at 28. Respondents contend that this is a jurisdictional issue because Section 1605A(b) involves a court’s authority to hear an action. Id. at 29.
Opati argues that the Court has jurisdiction to hear this case. Reply Brief for Petitioners, Monicah Opati at 20. Opati contends that the FSIA does not require that a state actor commit an “extrajudicial killing.” Id. at 20–21. Opati claims that instead, extrajudicial killings encompass “deliberated killing[s]” that are not authorized by law. Id. at 21. Although Sudan claims the lower court failed to apply Bolivarian Republic of Venezuela v. Helmerich & Payne International Drilling Co., Opati argues that the lower court expressly applied that decision. Id. Opati contends that while Sudan takes issue with the District Court’s factual findings, the D.C. Circuit reviewed the District Court’s findings for clear error, and found that no such clear error existed. Id. Opati also contends that the issue of whether actions were filed beyond the statute of limitations laid out in Section 1605A(b) is not a jurisdictional question. Id. 21–22.
DEFERENCE TO POLITICAL BRANCHES
Opati argues that affirming the lower court’s decision interferes with the political branches’ authority over foreign affairs, specifically whether an imposition of punitive damages would be in the United States’ interest. Brief for Petitioners at 23–24, 28–29. According to Opati, sovereign immunity is a privilege afforded based on the principle of comity that reflects political judgments over matters of foreign policy, not a legal right owed to foreign states. Id. at 23. Therefore, Opati argues, the courts should defer to the political branches because Congress is in a better position to determine policy goals and competing interests. Id. at 21. Additionally, Opati maintains that applying punitive damages retroactively would undermine foreign policy objectives that are often time-sensitive. Id. at 8. Opati concludes that courts should thoroughly analyze the construction of statutes with retroactive effects on legal interests between private litigants but should not do so in areas of great national concern such as foreign affairs. Id. at 7.
Sudan counters that prohibiting punitive damages for pre-enactment conduct is consistent with deferring to the political branches’ authority over foreign affairs. Brief for Respondents at 40. According to Sudan, Congress failed to include an explicit provision allowing for the retroactive application of punitive damages. Id. Sudan contends that this omission is evidence that Congress did not intend retroactive application. See id. Therefore, Sudan asserts that implying such an application into the statute, without explicit authorization, contravenes congressional intent and does not defer to the political branches. See id. Thus, Sudan argues that respect for the political branches’ authority in managing U.S. foreign relations requires courts to comply with congressional intent against the retroactive application of punitive damages. See id. at 40, 49.
FAIRNESS AMONG LITIGANTS AND FOREIGN STATES
Opati argues that allowing for the retroactive application of punitive damages preserves justice for terrorist victims. Brief for Petitioners at 54. This application, Opati asserts, would entitle victims to receive an array of remedies and means to achieve justice. See id. Opati adds that allowing full remedies is important in this context because individual rights are of “great national concern,” particularly here, where many of these terrorist victims sacrificed their lives for this nation. See id. Furthermore, Opati contends that the Court should protect victim litigants and apply the statute retroactively to ensure uniform decisions among cases. Id. at 27. It explains that the FSIA was intended to standardize the situations in which sovereign immunity applies by releasing the government from “case-by-case diplomatic pressures.” Id. Applying punitive damages retroactively, Opati contends, would further this purpose. Id.
Sudan counters that authorizing the retroactive application of punitive damages under Section 1605A(c) creates a new remedy previously unavailable to plaintiffs. Brief for Respondents at 45. Sudan explains that creating a new remedy increases defendants’ liability for pre-enactment conduct that was believed to be immunized at the time. Id. According to Sudan, this creates serious implications for fairness as the foreign state would have been unaware that it could later be held liable for its conduct. See id. at 32–33. Therefore, Sudan argues that the Court should refrain from retroactively applying punitive damages out of respect for foreign states. Id. at 39. Sudan explains that within the realm of foreign affairs and international politics, courts should uphold policies, such as denying retroactive punitive damages, that protect states and their agents against the inconveniences of lawsuits. Id. at 39.
•Greg Stohr, Supreme Court to Consider Reviving $4 Billion Terror Award Against Sudan, Bloomberg (June 28, 2019).