Case No. 17-1268 | 11th Cir.
Preview by Jalen LaRubbio
Does the Foreign Sovereign Immunities Act apply retroactively to allow recovery of punitive damages against foreign state sponsors of terrorism for events that occurred before § 1605A was enacted?
Foreign states are generally immune from suit in the courts of the United States. However, under the Foreign Sovereign Immunities Act (“FSIA”), an exception permits plaintiffs to recover damages from state sponsors of terrorism. 28 U.S.C. § 1605A (2018). Though the terrorism exception dates back to 1996, the current version of the statute, which created a federal cause of action against foreign states for acts of terrorism, was enacted in 2008.
In 1998, al-Qaeda terrorist attacks on the United States Embassies in Nairobi, Kenya and Dar-es-Salaam, Tanzania killed more than 150 government employees and injured thousands of people. Petitioners are 567 individuals, including 159 U.S. Government employees who were injured or killed by the bombings, their family members, and their estates. In 2011, the district court found that Respondent, the Republic of Sudan, provided critical services and assistance to al-Qaeda. In 2014, the district court awarded compensatory and punitive damages in accordance with the FSIA.
On appeal, Sudan argued that § 1605A does not authorize punitive damages for acts occurring prior to the 2008 amendments. Owens v. Republic of Sudan, 864 F.3d 751, 812 (D.C. Cir. 2017). The D.C. Circuit agreed and vacated the punitive damages award, finding that there was no “clear statement” by Congress “authorizing punitive damages for past conduct.” Id. at 816. The Supreme Court granted certiorari to determine whether the FSIA authorizes retroactive punitive damages against foreign state sponsors of terrorism.
Petitioners contend that the presumption against retroactivity does not apply to the FSIA, and that the courts must defer to the political branches because this is a foreign policy matter and the Supreme Court has adopted the principle that “foreign sovereign immunity is a matter of grace and comity consigned to the political branches.” Brief for Petitioners at 23, Opati v. Republic of Sudan, No. 17-1268 (U.S. filed Sept. 17, 2019). The United States, as amicus curiae in support of Petitioners, argues that based on the text of § 1605A, “once one accepts that the federal cause of action applies to pre-enactment conduct, and that it makes economic, solatium, and pain and suffering damages available for such conduct, there is no textual basis for reaching a different conclusion with respect to punitive damages.” Brief for the United States at 19, Opati v. Republic of Sudan, No. 17-1268 (U.S. filed Sept. 24, 2019). Respondents have not challenged the D.C. Circuit’s conclusion that under the 2008 amendments plaintiffs clearly may recover economic, solatium, and pain and suffering damages. Id. at 18. Further, according to Petitioners the historical context and the legislative history surrounding the 2008 amendments demonstrate that Congress and the Executive understood the statute to authorize punitive damages for conduct that occurred before the statute was enacted. Id. at 21–22.
On the other hand, Respondents first challenge the subject matter jurisdiction of the district court. Brief for Respondents at 20, Opati v. Republic of Sudan, No. 17-1268 (U.S. filed Nov. 22, 2019). Turning to the question presented, Respondents contend that the presumption against retroactivity, which would prohibit retroactivity absent a clear statement of Congress’s intention to apply the authorization retroactively, bars punitive damages here because Congress did not make a clear statement authorizing punitive damages for pre-enactment conduct. Id. at 30–41.