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Owens v. Republic of Sudan

Owens v. Republic of Sudan

United States Court of Appeals for the District of Columbia Circuit

October 11, 2016, Argued; July 28, 2017, Decided

No. 14-5105 Consolidated with 14-5106, 14-5107, 14-7124, 14-7125, 14-7127, 14-7128, 14-7207, 16-7044, 16-7045, 16-7046, 16-7048, 16-7049, 16-7050, 16-7052

Opinion

 [*761]   [**173]  Table of Contents

I. Background

A. The FSIA Terrorism Exception

B. History of this Litigation

II. Extrajudicial Killings

A. Textual Arguments

1. State action requirements under international law

2. International law and the TVPA

3. State action requirements [***2]  in the TVPA and the FSIA

terrorism exception

B. Statutory Purpose

C. Statutory History

III. Sufficiency of the Evidence Supporting Jurisdiction

A. The Evidentiary Hearing

1. The sources of evidence presented

2. The district court's findings of fact

B. Standard of Review

C. Admissibility of the Evidence

1. The expert testimony

2. The State Department reports

D. Sufficiency of the Evidence

1. Proximate causation

2. Sudan's specific intent

IV. Timeliness of Certain Claims

V. Jurisdiction and Causes of Action for Claims of Third

Parties

A. Jurisdiction

B. Causes of Action

 [*762]  [**174]   

C. Intentional Infliction of Emotional Distress

VI. Punitive Damages

A. Whether to Review the Awards of Punitive Damages

B. Retroactivity of Punitive Damages Under § 1605A(c)

1. Section 1605A operates retroactively

2. Clear statement of retroactive effect

C. Retroactivity of Punitive Damages Under State Law

VII. Vacatur Under Rule 60(b)

A. Excusable Neglect Under Rule 60(b)(1)

B. Extraordinary Circumstances Under Rule 60(b)(6)

Ginsburg, Senior Circuit Judge: On August 7, 1998 truck bombs exploded outside the United States embassies in Nairobi, Kenya and in Dar es Salaam, Tanzania. The explosions killed more than 200 people and injured more than a [***3]  thousand. Many of the victims of the attacks were U.S. citizens, government employees, or contractors.

As would later be discovered, the bombings were the work of al Qaeda, and only the first of several successful attacks against U.S. interests culminating in the September 11, 2001 attack on the United States itself. From 1991 to 1996, al Qaeda and its leader, Usama bin Laden, maintained a base of operations in Sudan. During this time, al Qaeda developed the terrorist cells in Kenya and Tanzania that would later launch the embassy attacks. This appeal considers several default judgments holding Sudan liable for the personal injuries suffered by victims of the al Qaeda embassy bombings and their family members.

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864 F.3d 751 *; 431 U.S. App. D.C. 163 **; 2017 U.S. App. LEXIS 13695 ***; 2017 WL 3203263

JAMES OWENS, ET AL., APPELLEES v. REPUBLIC OF SUDAN, MINISTRY OF EXTERNAL AFFAIRS AND MINISTRY OF THE INTERIOR OF THE REPUBLIC OF THE SUDAN, APPELLANTS

Subsequent History: Rehearing denied by Owens v. Republic of Sudan, 2017 U.S. App. LEXIS 19183 (D.C. Cir., Oct. 3, 2017)

Rehearing, en banc, denied by Owens v. Republic of Sudan, 2017 U.S. App. LEXIS 19182 (D.C. Cir., Oct. 3, 2017)

Later proceeding at Opati v. Republic of Sudan, 138 S. Ct. 2645, 201 L. Ed. 2d 1025, 2018 U.S. LEXIS 3542 (U.S., June 11, 2018)

Later proceeding at Republic of Sudan v. Opati, 138 S. Ct. 2645, 201 L. Ed. 2d 1025, 2018 U.S. LEXIS 3515 (U.S., June 11, 2018)

Later proceeding at Republic of Sudan v. Owens, 138 S. Ct. 2645, 201 L. Ed. 2d 1025, 2018 U.S. LEXIS 3610 (U.S., June 11, 2018)

Certified question answered by Republic of Sudan v. Owens, 194 A.3d 38, 2018 D.C. App. LEXIS 410 (D.C., Sept. 20, 2018)

US Supreme Court certiorari granted by, in part Opati v. Republic of Sudan, 139 S. Ct. 2771, 204 L. Ed. 2d 1155, 2019 U.S. LEXIS 4426 (U.S., June 28, 2019)

Vacated by, Remanded by Opati v. Republic of Sudan, 206 L. Ed. 2d 904, 2020 U.S. LEXIS 2844 (U.S., May 18, 2020)

US Supreme Court certiorari denied by, Motion granted by Republic of Sudan v. Owens, 2020 U.S. LEXIS 2878 (U.S., May 26, 2020)

Prior History:  [***1] Appeals from the United States District Court for the District of Columbia. (No. 1:01-cv-02244), (1:08-cv-01377), (1:10-cv-00356), (1:12-cv-01224), (1:08-cv-01349), (1:08-cv-01361), (1:08-cv-01380).

Mwila v. Islamic Republic of Iran, 33 F. Supp. 3d 36, 2014 U.S. Dist. LEXIS 41881 (D.D.C., Mar. 28, 2014)Owens v. Republic of Sudan, 71 F. Supp. 3d 252, 2014 U.S. Dist. LEXIS 150999 (D.D.C., Oct. 24, 2014)Amduso v. Republic of Sudan, 61 F. Supp. 3d 42, 2014 U.S. Dist. LEXIS 101319 (D.D.C., July 25, 2014)Wamai v. Republic of Sudan, 60 F. Supp. 3d 84, 2014 U.S. Dist. LEXIS 101322 (D.D.C., July 25, 2014)Onsongo v. Republic of Sudan, 60 F. Supp. 3d 144, 2014 U.S. Dist. LEXIS 101323 (D.D.C., July 25, 2014)Khaliq v. Republic of Sudan, 33 F. Supp. 3d 29, 2014 U.S. Dist. LEXIS 41882 (D.D.C., Mar. 28, 2014)Owens v. Republic of Sudan, 174 F. Supp. 3d 242, 2016 U.S. Dist. LEXIS 37464 (D.D.C., Mar. 23, 2016)

CORE TERMS

killing, terrorism, district court, bombings, extrajudicial, terrorist, embassy, punitive damages, international law, default, default judgment, bin, claimant, cases, contends, cause of action, plaintiffs', sovereign, foreign sovereign, state actor, retroactively, foreign state, vacatur, federal cause of action, limitations period, nonjurisdictional, authorization, immunity, sponsor, courts

Business & Corporate Compliance, Dispute Resolution, Conflict of Law, Jurisdiction, International Law, Sovereign Immunity, Foreign Sovereign Immunities Act, General Overview, Civil Procedure, Appeals, Reviewability of Lower Court Decisions, Construction & Interpretation, Individuals & Sovereign States, Human Rights, Torture, Governments, Legislation, Interpretation, Exceptions, Terrorism, Enactment, Appellate Review of Decisions, Burdens of Proof, Evidence, Burdens of Proof, Burdens of Production, Exceptions, Ultimate Burden of Persuasion, Standards of Review, Abuse of Discretion, Default & Default Judgments, Default Judgments, Entry of Default Judgments, Clearly Erroneous Review, Judgments, Pretrial Judgments, Default & Default Judgments, Judicial Officers, Judges, Discretionary Powers, Evidence, Foreign & International Immunity, Foreign Sovereign Immunities Act, Default Judgments, Admissibility, Expert Witnesses, Types of Evidence, Testimony, Expert Witnesses, Daubert Standard, Qualifications, Hearsay, Public Records, Public Records, Investigative Reports, Federal Government, Domestic Security, Torts, Causation, Proximate Cause, Foreseeability of Harm, Elements, Proximate Cause, Statute of Limitations, Time Limitations, Preliminary Considerations, Jurisdiction, Jurisdictional Sources, Statutory Sources, Sovereign Immunity, Waivers, Parties, Capacity of Parties, Representative Capacity, Intentional Torts, Intentional Infliction of Emotional Distress, Appellate Jurisdiction, Certified Questions, Effect & Operation, Retrospective Operation, Remedies, Damages, Punitive Damages, Amendments, Relief From Judgments, Grounds for Relief from Final Judgment, Order or Proceeding, Extraordinary Circumstances, Excusable Mistakes & Neglect, Excusable Neglect, Allocation, Individuals & Sovereign States, Relief From Judgments