Republic of Sudan, Ministry of External Affairs, et al., Appellants,
James Owens, et al., Appellees.
February 14, 2018
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
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.
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.
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.
Fisher and Thompson, Associate Judges, and Farrell, Senior
FISHER, ASSOCIATE JUDGE.
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."
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.
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. § 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).
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.
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 ...