Opati v. Republic of Sudan

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.

SUBJECT-MATTER JURISDICTION

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.