SCOTUS Unanimously Rules Punitive Damages Available Under FSIA for Embassy Bombing

In Opati v. Republic of Sudan, 590 U. S. ____ (2020), the U.S. Supreme Court unanimously held that plaintiffs in a suit against a foreign state for personal injury or death caused by acts of terrorism under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605A(c), may seek punitive damages for conduct that predated it enactment.

Facts of the Case

In 1998, al Qaeda operatives detonated truck bombs outside the United States Embassies in Kenya and Tanzania. Victims and their family members sued the Republic of Sudan under the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act (FSIA), alleging that Sudan had assisted al Qaeda in perpetrating the attacks. At the time, the plaintiffs faced §1606’s bar on punitive damages for suits proceeding under any of the §1605 sovereign immunity exceptions.

In 2008, Congress amended the FSIA in the National Defense Authorization Act (NDAA). In NDAA §1083(a), Congress moved §1605(a)(7) to a new section and created an express federal cause of action for acts of terror that also provided for punitive damages. Following these amendments, the original plaintiffs amended their complaint to include the new federal cause of action under §1605A(c), and hundreds of others filed new, similar claims. The district court entered judgment for the plaintiffs and awarded approximately $10.2 billion in damages, including roughly $4.3 billion in punitive damages. The D.C. Circuit Court of Appeals held that the plaintiffs were not entitled to punitive damages because Congress had included no statement in NDAA §1083 clearly authorizing punitive damages for preenactment conduct.

Court’s Decision

The Supreme Court vacated the lower court’s decision. It held that plaintiffs in a federal cause of action under §1605A(c) may seek punitive damages for preenactment conduct. Justice Neil Gorsuch wrote on behalf of the unanimous Court. Justice Brett Kavanaugh did not participate in the case.

In reaching its decision, the Court noted the long-standing assumption that Congress intends its legislation to apply only to future conduct. However, it found that, in this case, Congress expressly authorized plaintiffs who had existing lawsuits to invoke the new federal cause of action in amending the FSIA. “Congress was as clear as it could have been when it authorized plaintiffs to seek and win punitive damages for past conduct using §1065A(c)’s new federal cause of action,” Justice Gorsuch wrote.

“Congress proceeded in two equally evident steps: (1) It expressly authorized punitive damages under a new cause of action; and (2) it explicitly made that new cause of action available to remedy certain past acts of terrorism,” Justice Gorsuch further explained. “Neither step presents any ambiguity, nor is the NDAA fairly susceptible to any competing interpretation.”

Justice Gorsuch acknowledged that that “applying new punishments to completed conduct can raise serious constitutional questions.” However, he maintained that “when Congress clearly authorizes retroactive punitive damages in a manner a litigant thinks unconstitutional, the better course is for the litigant to challenge the law’s constitutionality, not ask a court to ignore the law’s manifest direction.”