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Congress was as clear as it could have been when it authorized plaintiffs to seek and win punitive damages for past conduct using 28 U.S.C.S. § 1605A(c)’s new federal cause of action. After all, in § 1083(a) of the National Defense Authorization Act for Fiscal Year 2008 (NDAA), Congress created a federal cause of action that expressly allows suits for damages that may include economic damages, solatium, pain and suffering, and punitive damages. This new cause of action was housed in a new provision of the U.S. Code, 28 U.S.C.S. § 1605A, to which the Foreign Sovereign Immunities Act’s usual prohibition on punitive damages does not apply. 28 U.S.C.S. § 1606. Then, in §1083(c)(2) and (c)(3) of the very same statute, Congress allowed certain plaintiffs in prior actions and related actions to invoke the new federal cause of action in § 1605A. Both provisions specifically authorized new claims for preenactment conduct. Put another way, Congress proceeded in two equally evident steps: (1) it expressly authorized punitive damages under a new cause of action; and (2) it explicitly made that new cause of action available to remedy certain past acts of terrorism. Neither step presents any ambiguity, nor is the NDAA fairly susceptible to any competing interpretation.
In 1998, al Qaeda operatives detonated truck bombs outside the United States Embassies in Kenya and Tanzania. Victims and their family members sued the Republic of Sudan under the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act (FSIA), formerly 28 U. S. C. §1605(a)(7), alleging that Sudan had assisted al Qaeda in perpetrating the attacks. At the time, the plaintiffs faced §1606’s bar on punitive damages for suits proceeding under any of the §1605 sovereign immunity exceptions. In 2008, Congress amended the FSIA in the National Defense Authorization Act (NDAA). 122 Stat. 3. In NDAA §1083(a), Congress moved §1605(a)(7) to a new section and created an express federal cause of action for acts of terror that also provided for punitive damages. In §1083(c)(2), it gave effect to existing lawsuits that had been “adversely affected” by prior law “as if” they had been originally filed under the new §1605A(c). And in §1083(c)(3), it provided a time-limited opportunity for plaintiffs to file new actions “arising out of the same act or incident” as an earlier action and claim §1605A’s benefits. Following these amendments, the original plaintiffs amended their complaint to include the new federal cause of action under §1605A(c), and hundreds of others filed new, similar claims. The district court entered judgment for the plaintiffs and awarded approximately $10.2 billion in damages, including roughly $4.3 billion in punitive damages. The court of appeals reversed, holding that the plaintiffs were not entitled to punitive damages because Congress had included no statement in NDAA §1083 clearly authorizing punitive damages for preenactment conduct. Plaintiffs challenged the decision.
May plaintiffs in a federal cause of action under §1605A(c) seek punitive damages for preenactment conduct?
The Court held that plaintiffs in a federal cause of action under §1605A(c) may seek punitive damages for preenactment conduct. Even assuming (without granting) that Sudan may claim the benefit of the presumption of prospectivity—the assumption that Congress meant its legislation to apply only to future conduct, Congress was as clear as it could have been when it expressly authorized punitive damages under §1605A(c) and explicitly made that new cause of action available to remedy certain past acts of terrorism. It created a federal cause of action that expressly allowed suits for damages that could include punitive damages, that new cause of action was housed in a new provision to which the FSIA’s usual prohibition on punitive damages did not apply, and in the very same statute, it allowed certain plaintiffs in prior and related actions to invoke 28 U.S.C.S. § 1605A. On remand, the court of appeals was to reconsider its decision concerning the availability of punitive damages for claims proceeding under state law given that punitive damages were permissible for federal claims, and thus, the reasons the court of appeals offered for its contrary decision were mistaken.