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Justices Revive Award Against Sudan Over Embassy Bombings (2)

May 18, 2020, 2:12 PMUpdated: May 18, 2020, 9:07 PM

The U.S. Supreme Court revived a $4.3 billion punitive damage award against Sudan related to the twin al Qaeda bombings of American embassies in East Africa in 1998.

The justices on Monday unanimously reversed an appeals court ruling that had tossed punitive damages because the law allowing them in these kinds of cases was enacted about a decade after the truck-bomb attacks in Kenya and Tanzania that killed more than 200 people and injured thousands of others.

The high court said the law here applies retroactively. It rejected Sudan’s argument that Congress must provide a “super-clear statement” when it’s dealing with punitive, as opposed to compensatory, damages.

“Congress was as clear as it could have been when it authorized plaintiffs to seek and win punitive damages for past conduct,” Justice Neil Gorsuch said in writing for the court.

Justice Brett Kavanaugh didn’t participate in the decision that sent the case back to the U.S. Court of Appeals for the District of Columbia Circuit for further review based on the new ruling.

Nearly $6 billion in other damages in the legal action brought by injured victims and families of those killed in the attacks were not a factor in this case.

Sudan denies wrongdoing.

Attorneys on both sides weighed in on the decision.

“It’s hard to imagine an act more deserving of punitive damages,” said Gibson Dunn’s Matthew D. McGill, who argued for bombing victims and their families.

But White and Case’s Christopher Curran, who argued the case for Sudan, said most of the award is still up in the air.

Narrow Question

The Supreme Court didn’t go beyond the narrow question of whether amendments to the Foreign Sovereign Immunities Act in 2008 permitting punitive damages could apply to the Sudan bombings.

Gorsuch acknowledged a presumption that new laws apply only prospectively—not retroactively. That idea “is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic,” Gorsuch said. But Congress can overcome that presumption so long as lawmakers are clear. How much “clearer-than-clear” must Congress be? Gorsuch asked rhetorically in this instance.

“Sudan doesn’t even try to say, except to assure us it knows a super-clear statement when it sees it, and can’t seem to find one here. That sounds much less like an administrable rule of law than an appeal to the eye of the beholder,” he said.

The court didn’t decide the broader question of whether the FSIA allows for punitive damages under state law claims, as opposed to federal ones. Because of the specifics of the law, some family members of foreign nationals had to sue under state law.

State-law punitive damages accounted for more than 80 percent of the $4.3 billion awarded in default judgments here, Curran said. Moreover, some of the nearly $6 billion in other damages are subject to this state-law questions, too, he added.

The case is much more than money, said Naomi Roht-Arriaza, a professor at the University of California Hastings College of the Law who has written about FSIA’s terrorism exception to immunity from suit.

The victims in these cases “rarely are able to collect much of the award, either because the state (like Sudan) has few assets reachable by US courts, or, in cases against individual state officials (and thus not covered by the FSIA) the assets can’t be found,” Roht-Arriaza said.

So it’s about establishing what happened, vindicating the plaintiffs’ stories and making the public aware “as much or more than any monetary award,” Roht-Arriaza said.

Khartoum was found to have provided a haven to al Qaeda while it planned the twin bombings.

The trial court “found that Sudan had provided hundreds of Sudanese passports to al Qaeda, allowed al Qaeda operatives to travel over the Sudan-Kenya border without restriction, and permitted the passage of weapons and money to supply al Qaeda’s cell in Kenya,” Gorsuch said.

Curran said that “Sudan expresses sympathy for the victims of the acts of terrorism at issue,” but still sticks by its claim that “it was not involved in any wrongdoing in connection with those acts.”

The case is Opati v. Sudan, U.S., No. 17-1268.

(Updates with comments from law professor, details of case, and attorneys involved in Supreme Court litigation.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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