Legal Sidebari

Supreme Court Permits Retroactive Punitive
Damages Against Sudan in Terrorism Cases
May 28, 2020
More than two decades after the U.S. embassies bombings in Tanzania and Kenya, some plaintiffs who
alleged that Sudanese support of Al Qaeda contributed to the attacks have won the opportunity to obtain
punitive damages against the government of Sudan. The Supreme Court decided 8-0 (with no
participation by Justice Kavanaugh) in Opati v. Republic of Sudan that Congress intended to make
punitive damages available on a retroactive basis when it updated the terrorism exception to the Foreign
Sovereign Immunities Act (FSIA) in 2008. The U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit)
had decided otherwise, invalidating $4.3 billion in punitive damages and halving the Opati plaintiffs’
award for the embassy bombings. Under Opati, the D.C. Circuit is to reinstate some or all of those
punitive damages.
State-Sponsored Terrorism Exception to the FSIA
Under the FSIA, foreign states are immune from jurisdiction in U.S. courts unless an exception exists.
Congress amended the FSIA in 1996 to provide jurisdiction in any case in which an eligible plaintiff
seeks money damages against a designated state sponsor of terrorism “for personal injury or death that
was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of
material support or resources.” The current terrorism exception, codified at 28 U.S.C. § 1605A, provides
U.S. courts jurisdiction to hear claims against designated state sponsors of terrorism for similar conduct if
the claimant or victim was, at the time the terrorist act occurred: (1) a U.S. national; (2) a member of the
Armed Forces; or (3) “otherwise an employee or contractor of the United States.” The previous terrorism
exception did not permit foreign national employees or contractors to bring claims, although foreign
national family members of U.S. victims could bring claims, as could U.S. family members of foreign
victims.
Section 1605A(c) also created a new federal cause of action for injuries caused by acts of state-sponsored
terrorism. Before enactment of section 1605A in 2008, the terrorism exception in the FSIA did not
provide a separate cause of action and did not specify the types of damages available. Instead, plaintiffs
had to assert causes of action based on some other source of law, primarily state or foreign law. The
1605A(c) cause of action is available for U.S. nationals, members of the U.S. Armed Forces, and
contractors or employees of the U.S. government. Because the cause of action does not apply to foreign
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nationals who were not employees or contractors of the United States when the claim arose, foreign
national family members of covered persons must look to state or foreign law for a cause of action. Most
plaintiffs in Opati fall into the latter category and must use state or foreign law for a cause of action.
The cause of action in section 1605A(c) provides that damages “may include” punitive damages, as well
as economic damages, solatium, and pain and suffering. Under other exceptions to the FSIA (and under
the previous terrorism exception), punitive damages are not available against a foreign state, although
they are available against agencies or instrumentalities of foreign states.
Upon enacting section 1605A, Congress permitted plaintiffs to refile cases filed under the previous
terrorism exception or convert pending claims to the new cause of action, directing that such cases be
treated as if they had been filed under the new cause of action. Congress also permitted plaintiffs, within a
specified time, to file new cases related to claims that had already resulted in judgments, even if the time
for filing had expired. In these ways, Congress permitted the new cause of action to apply to terrorist acts
that occurred before section 1605A was enacted in 2008.
The Question in Opati
In Opati, the Supreme Court agreed to decide the following question plaintiffs presented to the Court:
Whether, consistent with this Court’s decision in Republic of Austria v. Altmann, 541 U.S. 677
(2004), the Foreign Sovereign Immunities Act applies retroactively; thereby permitting recovery of
punitive damages under 28 U.S.C. § l605A(c) against foreign states for terrorist activities occurring
prior to the passage of the current version of the statute.
Altmann held that the FSIA as a whole, which became law in 1976, applied retroactively to cover conduct
that occurred prior to its enactment. Plaintiffs in Opati sought to extend that rule to cover not only general
questions of foreign sovereign immunity but also to cover a new claim for punitive damages. Sudan
argued that the general presumption against retroactivity the Supreme Court set forth in Landgraf v. USI
Film Products suggests that Congress must expressly state that punitive measures (including punitive
damages) should apply retroactively. (For more discussion of Landgraf and retroactive legislation, see
this CRS InFocus.) Sudan conceded that the new cause of action in section 1605A(c) applies
retroactively, but argued that Congress had not clearly stated that the portion of that statute that provides
for punitive damages also applies to past conduct.
The Court, however, saw “no need to resolve the parties’ debate over interpretive presumptions.”
Assuming without deciding that Sudan could benefit from Landgraf’s presumption of prospectivity, the
Court held that Congress was “as clear as it could have been” that it meant for the newly enacted cause of
action to apply to pre-enactment conduct. The Court saw no logical reason to apply that interpretation to
“every jot and tittle” of the provision except for punitive damages.
The Court was not persuaded that the language “may include” introduced any ambiguity—“may” simply
denotes discretion on the part of the judge deciding the claim, the Court reasoned. Noting that Sudan did
not challenge the constitutional validity of the retroactive application of punitive damages, the Court
declined to accept Sudan’s proposal that would require Congress to provide a “super-clear” statement
when it intends to authorize punitive damages for past conduct.
The Question on Remand
The Supreme Court resolved the question about the retroactive availability of punitive damages under the
federal law cause of action in section 1605A, but most of the Opati plaintiffs are foreign nationals that
proceeded under state law rather than the federal cause of action. The D.C. Circuit previously ruled that
retroactive punitive damages are not available to the plaintiffs using state law causes of action “for the same

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reason” it had concluded plaintiffs using section 1605A(c)’s federal cause of action cannot obtain them.
Opati overturned the D.C. Circuit on the issue of retroactive punitive damages and federal causes of action,
but the Supreme Court declined to decide whether those damages are available to plaintiffs asserting state
law claims against Sudan. Instead, the Court remanded that question back to the D.C. Circuit. Opati may
suggest that the D.C. Circuit’s earlier reasoning does not necessarily apply with respect to different causes
of action.
Interest for Congress
Opati may be of interest to Members of Congress concerned with Sudan’s efforts to conclude an
international claims settlement agreement with the United States. Sudan is in the midst of a transition of
power (discussed in this CRS Report) after nationwide protests against the Islamist regime of long-ruling
President Omar al Bashir led to his ouster in April 2019. Sudan’s new transitional government is currently
seeking to negotiate a settlement agreement with the United States and remove itself from the U.S. list of
state sponsors of terrorism. It is possible that such a settlement agreement might moot the remaining
questions in Opati about retroactive punitive damages for state law causes of action because a claims
settlement agreement or implementing legislation would likely call for dismissal of all terrorism claims
against Sudan. (Plaintiffs could still obtain punitive damages against co-defendant Iran, who has not
participated in the litigation).
A congressional memorandum discussing Sudan’s proposed settlement and its implications for U.S.-
Sudan relations is available upon request from the author.

Author Information

Jennifer K. Elsea

Legislative Attorney




Disclaimer
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