United States District Court, District of Columbia
JOHN D. BATES UNITED STATES DISTRICT JUDGE.
The statute of limitations applicable to suits brought under the so-called “terrorism exception” of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A, is generous to plaintiffs. Indeed, just yesterday this Court concluded that a suit arising from the 1998 bombings of the U.S. embassies in Kenya and Tanzania was timely even though not filed until 2012. Owens v. Republic of Sudan, No. 01-cv-2244, 2016 U.S. Dist. LEXIS 37467, at *57-64 (D.D.C. Mar. 23, 2016). But that generosity is not boundless. Plaintiffs here also seek damages stemming from one of those 1998 bombings, but did not file suit until December 2014. The Court concludes that plaintiffs’ claims against the Republic of Sudan are untimely under each of the two theories they propose, and it will therefore dismiss those claims with prejudice.
On August 7, 1998, a pair of truck bombs detonated outside the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, killing more than 200 people and injuring thousands. Starting in 2001, various groups of plaintiffs began to sue Sudan, alleging that it had provided material support to the al Qaeda terrorists who had carried out the attacks. (They also sued Iran, but that aspect of the litigation is largely irrelevant.) The Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq., generally bars suits against foreign states, but the victims were able to proceed under the so-called “terrorism exception” to foreign sovereign immunity, then codified at 28 U.S.C. § 1605(a)(7). That provision eliminated immunity, and by the same token created subject-matter jurisdiction, in cases seeking damages against designated state sponsors of terrorism for (among other actions) the provision of “material support or resources” for acts of “extrajudicial killing.” 28 U.S.C. § 1605(a)(7) (2006).
The long and complicated history of those earlier cases, which the Court will refer to collectively as the “Owens cases, ” does not bear recounting in full here. But a short version will be useful. After initially defending in the first of the Owens cases, Sudan defaulted. The FSIA does not permit a default judgment against a foreign state unless a plaintiff provides satisfactory evidence of her right to recover, 28 U.S.C. § 1608(e), so the Court held an ex parte hearing at which the Owens plaintiffs submitted various forms of evidence bearing on Sudan’s support for al Qaeda and the embassy bombings. The Court ultimately concluded that Sudan was not immune from suit and was liable to the victims of the bombings. Owens v. Republic of Sudan, 826 F.Supp.2d 128 (D.D.C. 2011). The Court then referred the Owens cases to a number of special masters, who spent the next several years assessing what damages each of the hundreds of individual plaintiffs should be awarded.
In the midst of the long history of the Owens cases, Congress significantly amended the FSIA’s terrorism exception. In the National Defense Authorization Act (NDAA) of 2008, Congress deleted § 1605(a)(7) and enacted an entirely new section, § 1605A. Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338-44 (2008). Although the immunity exception contained in § 1605A was virtually identical to its predecessor in many respects, it did expand the class of potential plaintiffs. Under the old version, either the “victim” or “claimant” had to have been a U.S. national at the time of the incident giving rise to the claim. 28 U.S.C. § 1605(a)(7)(B)(ii) (2006). Under the new version, either the “victim” or “claimant” had to have been either a U.S. national, or a member of the U.S. armed forces, or a U.S. government employee (or contractor) acting within the scope of his employment at the time of the incident. 28 U.S.C. § 1605A(a)(2)(A)(ii). The expanded range of possible plaintiffs had a major impact on the Owens cases. This Court concluded that, under § 1605A, not only could foreign nationals directly injured while working at the embassies sue, but their foreign-national family members could also sue for emotional harm resulting from the direct victims’ injuries and deaths. See, e.g., Amduso v. Republic of Sudan, 61 F.Supp. 3d 42, 47-48 (D.D.C. 2014).
Between March and October 2014, this Court entered final judgments in all seven of the Owens cases, awarding a total of over $10 billion in compensatory and punitive damages. The entry of those judgments was apparently a wake-up call to Sudan, which after years of sitting on the sidelines finally decided to participate. Some months after filing notices of appeal in all of the Owens cases, Sudan asked this Court to vacate the judgments pursuant to Federal Rule of Civil Procedure 60(b). The appeals were put on hold while this Court addressed the host of arguments Sudan raised in its Rule 60(b) motions. And yesterday the Court denied those motions in full. Owens, 2016 U.S. Dist. LEXIS 37467, at *120. The fate of the Owens cases now rests with the D.C. Circuit.
We come at last to the two cases now before the Court, both of which take much the same form as the Owens cases, but which were not filed until December 2014. According to the allegations in the complaints, which the Court for now assumes are true, Farhat Mahmood Sheikh and Moses Magothe Kinyua were victims of the Nairobi embassy bombing. Sheikh was a British citizen who worked for the U.S. government (in what capacity is not clear) and was killed in the blast. Compl. [Sheikh ECF No. 1] ¶ 9; Pls.’ Opp’n to Mot. to Dismiss [Sheikh ECF No. 24] at 13. Sheikh’s estate, joined by his widow and children (also British citizens), alleges that Sudan and Iran were responsible for the bombing and are liable for Sheikh’s death, his family’s emotional distress, and their loss of Sheikh’s society. Compl. ¶¶ 9-17, 80-85. Kinyua was a Kenyan citizen who worked for the U.S. government (in what capacity is again not clear) and who was severely injured in the blast. Compl. [Kinyua ECF No. 1] ¶ 9; Pls.’ Opp’n to Mot. to Dismiss [Kinyua ECF No. 23] at 1 & n.1. Kinyua’s brothers, sisters, and informally adopted son (all Kenyan citizens) allege that Sudan and Iran were responsible for the bombing and are liable for their emotional distress and loss of Kinyua’s society. Compl. ¶¶ 9-19, 74-77. For convenience’s sake, the Court will collectively refer to plaintiffs in both cases as “the Families.”
As noted, by the time the Families filed these cases in late 2014, Sudan had begun participating in the various FSIA suits against it. (Iran, by contrast, has never appeared in any of the cases arising out of these bombings, including these two.) After learning of these newest suits, Sudan moved to dismiss them both. Those motions are now fully briefed and ripe for joint decision, the issues in both cases being effectively identical.
Sudan’s motions raise a host of arguments, some claiming that the Court lacks subject-matter jurisdiction, others claiming that even if jurisdiction is proper the Families have failed to state claims on which relief can be granted. Although a number of the arguments are identical to those the Court just rejected in the Owens cases, that decision does not resolve them all. The Court concludes, however, that it need only address one argument: Sudan’s contention that these suits are untimely. Because the Court ultimately agrees with Sudan on that point, which is sufficient reason to dismiss, it need not address the remainder of Sudan’s arguments.
Is it proper, though, for the Court to dismiss on timeliness grounds when Sudan has raised arguments going to subject-matter jurisdiction? Cf. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-102 (1998) (rejecting the notion that federal courts can assume subject-matter jurisdiction for the purpose of deciding the merits). Sudan thinks yes, because Sudan thinks the relevant statute of limitations, 28 U.S.C. § 1605A(b), is itself a jurisdictional limit. But the Court just decided in Owens that it is not jurisdictional. Owens, 2016 U.S. Dist. LEXIS 37467, at *54- 57. No matter. The D.C. Circuit has made clear that in FSIA cases a court may “properly move the timeliness issue to the head of the line, ” addressing it before issues of statutory subject-matter jurisdiction. Chalabi v. Hashemite Kingdom of Jordan, 543 F.3d 725, 728 (D.C. Cir. 2008); see id. at 729 (dubbing this the “sensible course”). We move on, then, to the timeliness question itself.
The statute of limitations for claims brought under the terrorism exception to foreign sovereign immunity is found in § 1605A(b). That provision reads, in relevant part:
An action may be brought or maintained under this section if the action is commenced, or a related action was commenced under section 1605(a)(7) (before the date of the enactment of ...