Republic of Sudan, Ministry of External Affairs v. Owens

          Argued February 14, 2018

          On Certified Question From the United States Court of Appeals For the District of Columbia Circuit (14-5105)

          Christopher M. Curran, with whom Nicole Erb, Claire A. DeLelle, and Celia A. McLaughlin were on the brief, for appellants.

          Matthew D. McGill, with whom Stuart H. Newberger, Clifton S. Elgarten, Aryeh S. Portnoy, Thomas Fortune Fay, Lochlan F. Shelfer, Steven R. Perles, Edward B. Macallister, Jane Carol Norman, John Vail, Michael J. Miller, and David J. Dickens were on the brief, for appellees.

          Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, Loren L. AliKhan, Deputy Solicitor General at the time the brief was filed, and Lucy E. Pittman, Assistant Attorney General, were on the brief for the District of Columbia as amicus curiae in support of appellees.

          Ellen M. Bublick and George Anhang were on the brief for Law Professors Ellen M. Bublick and Paul T. Hayden as amici curiae in support of appellees.

          Before Fisher and Thompson, Associate Judges, and Farrell, Senior Judge.

          FISHER, ASSOCIATE JUDGE.

         Almost simultaneously on August 7, 1998, al Qaeda terrorists detonated powerful truck bombs outside the United States embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, killing over two hundred people and injuring more than a thousand others. Owens v. Republic of Sudan, 864 F.3d 751, 762 (D.C. Cir. 2017). Three years after the attacks, groups of plaintiffs began filing suit in the United States District Court for the District of Columbia, seeking to hold Sudan accountable for its role in the bombings. Id. Eventually, the case reached the United States Court of Appeals for the District of Columbia Circuit and, pursuant to D.C. Code § 11-723 (2012 Repl.), it certified the following question of District of Columbia law to this court:

Must a claimant alleging emotional distress arising from a terrorist attack that killed or injured a family member have been present at the scene of the attack in order to state a claim for intentional infliction of emotional distress?

Id. at 812. For the reasons that follow, we answer this question "No."

         I. Background

         The D.C. Circuit and the district court have fully recounted the relevant facts and procedural history, see id. at 765-69, 781-84; Owens v. Republic of Sudan, 826 F.Supp.2d 128, 133-35, 139-46 (D.D.C. 2011), aff'd in part, vacated in part, 864 F.3d 751 (D.C. Cir. 2017), so we will discuss them only briefly here.

         Much of the litigation in federal court centered on the Foreign Sovereign Immunity Act (FSIA), which generally bars suits against foreign sovereigns in federal and state courts. 28 U.S.C. § 1604 (2012). The FSIA contains exceptions, including the "[t]errorism exception," 28 U.S.C. § 1605A, which strips foreign states of immunity, and grants courts jurisdiction, in cases where certain plaintiffs sue state sponsors of terrorism for committing, or "provi[ding] material support" for, enumerated terrorist activities.^[1] § 1605A(a)(1), (2). Section 1605A(c) establishes a private right of action for the same conduct that gives rise to jurisdiction; however, only a subcategory of those plaintiffs who obtain jurisdiction under the terrorism exception can also invoke the statutory cause of action. 864 F.3d at 809. The remainder must assert claims based "upon alternative sources of substantive law," such as state tort law. Id. at 808 (analyzing §§ 1605A and 1606).

         Appellees are a subset of the plaintiffs who sued Sudan for its role in the embassy bombings. All of them are non-U.S. nationals related to someone who died or suffered injuries in one of the attacks. They allege that the injuries to their family members caused them severe emotional distress, and seek to recover damages for that injury to themselves.

         The district court determined, 826 F.Supp.2d at 148, and the D.C. Circuit later affirmed, 864 F.3d at 769, that it had jurisdiction over appellees' claims under § 1605A. However, the district court also concluded that appellees could not rely on § 1605A(c)'s cause of action and would instead need to invoke an independent legal basis for recovery. 826 F.Supp.2d at 153. After conducting a choice of law analysis, the court determined that District of Columbia law governed the "claims that [did] not arise under the federal cause of action at § 1605A(c)," id. at 157, and, applying our tort law, held Sudan liable to appellees for intentional infliction of emotional distress ("IIED"). See, e.g., Onso ...