Suing Sudan: Weekly Brief for May 18

Pop quiz: Can U.S. citizens sue other countries in U.S. courts? Answer: Yes. There are a few exceptions to the Foreign Sovereign Immunities Act, which otherwise shields foreign countries from suits in state or federal court. Next question: Which of these exceptions did Congress create in 1996? Answer: The terrorism exception. U.S. citizens who are victims of terrorist attacks can sue a foreign state that (1) participated in or assisted the perpetrators of the attack and (2) has been designated a state-sponsor of terrorism by the U.S. State Department. Third question: Can a plaintiff suing under the terrorism exception seek punitive damages against the foreign country? Answer: Yes. Congress in 2008 listed punitive damages as a possible award for such plaintiffs. Final question: Can plaintiffs who brought a terrorism suit before 2008 still seek punitive damages? In other words, did Congress intend the punitive-damages provision to apply retroactively? Well, this was the very question the Supreme Court answered this week in Opati v. Republic of Sudan. Read on to find out.


This Week:
Decisions: 1
Cases Argued: 0
Cert Grants: 0
Opinions Relating to Orders: 1
GVRs: 1

O.T. 2019:
Cases Decided: 36
Cases Remaining: 25*
Weeks Left in Term: 6**

* This number does not include cases that were granted and had been set for oral argument in March or April, but were postponed due to COVID-19 and were not rescheduled for the May virtual argument sitting.

** This number reflects the date at which the Supreme Court’s term usually ends (the last week of June). However, O.T. 2019’s end date may be later due to measures taken in response to COVID-19.



The Court released a relatively benign orders list Monday morning. The Justices didn’t grant any new cases. They GVR’d Beers v. Barr in light of United States v. Munsingwear, Inc. (1950) with instructions to dismiss the case as moot.

The orders list did elicit an opinion from Justice Thomas. The Court declined to take up Wexford Health v. Garrett, a case dealing with the proper procedure for challenging a prison’s living conditions. The Prison Litigation Reform Act of 1996 (PLRA) provides that an inmate must exhaust all “administrative” remedies before filing a lawsuit in federal court alleging insufficient living conditions at a federal prison (42 U.S.C. §1997e(a)). Federal appeals courts have divided on the question whether there is any exception to the PLRA. Specifically, if an inmate sues before exhausting all administrative remedies, but during litigation the inmate is released from prison and amends his complaint, is this sufficient to bypass the PLRA’s “exhaustion” requirement? Put differently, does an inmate’s “change in status” “cure” his defect of failing to exhaust administrative remedies? The Third Circuit in Beers answered “yes,” but other appeals courts have previously answered “no.”

When the Supreme Court declined to step in, Justice Thomas dissented. He relied primarily on the current circuit split to support his vote to take up the case. Thomas further noted that resolving the split “will have significant ramifications for not only prisoners and prison officials but also federal courts.”


The Court issued one decision this week:

Opati v. Republic of Sudan
In 1998, al Qaeda operatives bombed U.S. embassies in Kenya and Tanzania, killing hundreds and wounding scores more. Some of the victims’ families sued the Republic of Sudan, alleging that the country was complicit in the terrorist attacks. The families sought punitive damages under the 2008 amendments to the Foreign Sovereign Immunities Act (FSIA). Sudan responded that the FSIA’s amendments do not apply retroactively and, since the terrorist attacks took place before the amendments were enacted, the families could not seek punitive damages. But a unanimous Supreme Court—led by Justice Gorsuch—disagrees, handing the families a victory. (Justice Kavanaugh recused himself from the case since he participated in it while on the D.C. Circuit Court of Appeals.)

Opati is a foreign sovereign immunity case (that is, whether foreign countries are immune from private suits in U.S. courts). The doctrine finds its roots in the seminal Schooner Exchange v. McFadden (1812), in which Chief Justice Marshall held that foreign countries do not enjoy a completely unfettered right to immunity from suit. For a century-and-a-half after Schooner Exchange, the doctrine proceeded largely on a case-by-case basis, with the Court relying on immunity guidance from the U.S. Department of State.

In 1976, Congress changed all that with the Foreign Sovereign Immunities Act. The FSIA established a statutory framework for resolving foreign immunity cases. In general, the FSIA barred private suits against foreign countries and their instrumentalities (28 U.S.C. §1603(a)). However, the FSIA did admit of some exceptions, and future amendments added to these exceptions. One of these, enacted in 1996, was the “terrorism” exception. It allowed certain plaintiffs to bring suits against foreign countries that have (1) committed or supported acts of international terrorism and (2) have been designated a state-sponsor of terrorism by the State Department.

Still outstanding, however, was the issue whether plaintiffs could seek punitive damages under the FSIA’s terrorism exception. Congress took care of that in 2008. It created an entirely new section of the U.S. Code for terrorism cases under the FSIA (28 U.S.C. §1605A). And in that section, it allowed U.S. citizens, federal government employees, and members of the Armed Forces to sue for punitive damages (§1605A(c)).

Let’s return to Opati. The terrorist attacks occurred in 1998, two years after Congress created the “terrorism” exception to the FSIA. Sudan, meanwhile, has been designated a state-sponsor of terrorism since 1993. So, the plaintiffs here have a right to sue Sudan under the 1996 exception. They did, and they won. The issue then became whether they can seek punitive damages under the 2008 amendments. The plaintiffs argued “yes”: Congress intended the 2008 amendments to apply retroactively, allowing punitive damages awards for incidents that occurred prior to 2008. Sudan, on the other hand, argued “no”: Congress had no such intention; the amendments do not apply retroactively.

Gorsuch sides with the plaintiffs. After recapping this history, Gorsuch turns to assessing each sides’ arguments—and he finds Sudan’s lacking. Sudan misfires from the start. It first directs the Court’s attention to Landgraf v. USI Film Products (1994), in which the Court noted that if Congress seeks to enact a statute that applies retroactively, Congress should make that intention “clear” in the law’s text. But Congress met that bar here, Gorsuch says. In the FSIA’s 2008 amendments, Congress enacted two provisions regarding the retroactive applicability of the FSIA’s newfound punitive damages statute. One—the “Prior Actions” provision—stated that lawsuits filed prior to the 2008 amendments will now proceed “as if” they had been filed under the 2008, punitive-damages-allowing amendments. The other—the “Related Actions” provision—allowed plaintiffs to file new suits under the 2008 amendments to replace the suits that were filed previously.

Congress “was as clear as it could have been” in these two provisions, Gorsuch says. Congress plainly intended to “(1) authorize[] punitive damages under a new cause of action; and (2) . . . ma[ke] that new cause of action available to remedy certain past acts of terrorism.”

Sudan next tries to say that the statutory language is equivocal. Specifically, since §1605A says a court “may” award punitive damages, Congress did not intend to create a full-fledged right to punitive damages awards in cases arising under the FSIA’s terrorism exception, Sudan argues. But to Gorsuch, this is a non sequitur. The word “may” simply gives courts “discretion to determine whether punitive damages are appropriate in view of the facts of a particular case.” In other words, if a court determines that FSIA terrorism victims are entitled to damages of some sort, those damages “may include economic damages, solatium, pain and suffering, and punitive damages” (§1605A) (emphasis added). True, §1605A suggests that punitive damages may not be appropriate in all cases, depending on the determinations of the court. But by making punitive damages an option, §1605A clearly signals Congress’ intent to allow plaintiffs to request punitive damages as an award in FSIA terrorism-exception cases.

Gorsuch then turns to Sudan’s last effort. Because the kinds of damages here (punitive as opposed to compensatory) implicate special constitutional concerns, the argument goes, the Court should fashion a new rule requiring Congress to be “super-clear” whenever it seeks to enact a retroactive punitive damages statute. “We decline this invitation,” Gorsuch responds. As a preliminary matter, notes Gorsuch, if Sudan has concerns that §1605A is unconstitutional, Sudan should have challenged it on that ground rather than object to its clarity under the Court’s “retroactive-application” doctrine. Moreover, suppose the Court took Sudan up on its request. “[W]hen we fashion interpretive rules,” Gorsuch explains, “we usually try to ensure that they are reasonably administrable, comport with linguistic usage and expectations, and supply a stable backdrop against which Congress, lower courts, and litigants may plan and act.” Sudan’s suggestion, however, would do the exact opposite. “How much clearer-than-clear should we require Congress to be when authorizing the retroactive use of punitive damages?”, Gorsuch asks rhetorically. Sudan’s answer? Crickets—other than an “I know it when I see it” sentiment which, conveniently, isn’t the case here. “That sounds much less like an administrable rule of law than an appeal to the eye of the beholder,” Gorsuch quips.

For these reasons, Gorsuch holds that the FSIA’s 2008 amendments, which allow victims of state-sponsored terrorism to seek punitive damages against that state, apply retroactively. All of his colleagues agreed, save for the recused Justice Kavanaugh.


Tuesday evening, the Court turned down Walter Barton’s request to stay his execution. Barton, a Missouri inmate who was convicted of first-degree murder in 1991, had argued that he was both incompetent to be executed and wrongfully convicted. No Justices dissented from the decision, and Barton was executed later Tuesday night.


Special Counsel Robert Mueller’s investigation has now made its way to the Supreme Court. In March, the D.C. Circuit Court of Appeals ordered the release of certain classified grand jury materials from the investigation to the House Committee on the Judiciary. It ultimately denied the Trump administration’s request for a stay in May. The U.S. Department of Justice (DOJ) appealed to the Supreme Court, asking for a temporary stay. Wednesday afternoon, the Court granted the stay (with no noted dissents). The Court ordered the DOJ to file its cert petition by June 1 (assuming the DOJ intends to file one). If the DOJ does not meet this deadline, the stay will terminate automatically. If the DOJ does, the stay will continue until the Supreme Court disposes of the case.


Thursday evening, the Court declined to intervene in Idaho Dep’t. of Correction v. Edmo. Adree Edmo seeks gender reassignment surgery. The Ninth Circuit ordered Idaho to provide Edmo with the operation in July, and Idaho sought a stay of the order in the Supreme Court. In a short order, seven Justices declined the request. Justices Thomas and Alito would have granted the stay.

The Court also conducted its weekly, private (tele-)conference on Thursday. The Justices reviewed the petitions on their docket and debated whether to grant review for any of them. Out of an abundance of caution, only Chief Justice Roberts was actually present in the Supreme Court building; the other eight Justices took part in the conference over the phone. We can expect news from this conference in the Court’s next orders list on Tuesday. Some high profile cases the Justices are considering include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights.
  • Arlene’s FlowersInc. v. Washington. This case is a mirror-image to that of Masterpiece CakeshopLtd. v. Colorado, on whose merits the Court punted in 2018. The questions before the Court are (1) whether a state violates a floral designer’s Free Exercise and Free Speech rights by forcing her to create custom floral arrangements celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law. The law prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law—and others like it in cities and states around the country—under the Supremacy Clause of the Constitution.
  • Worman v. Healey. This case concerns a Massachusetts state law that bans, inter alia, semiautomatic “assault weapon[s]” and magazines capable of accepting 10+ rounds of ammunition. The question presented is whether that law violates the Second Amendment to the Constitution.
  • Malpasso v. Pallozzi. This is a constitutional law case asking whether a state law that categorically prohibits residents from carrying handguns outside the home for self-defense violates the Second Amendment.
  • Ohio v. Ford. This is a capital case that asks what the proper standard is for determining whether a criminal defendant is “intellectually disabled” under the Eighth Amendment’s Cruel and Unusual Punishment Clause.
  • McKesson v. Doe. This is a First Amendment case stemming from a Louisiana protest in which some protesters resorted to violence. The question presented is whether the First Amendment permits a state to sue the leader of a protest for criminal negligence, even where the leader does not necessarily instigate the violence.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The question presented is whether it violates the First Amendment to designate a labor union to represent and speak on behalf of public-sector employees who object to its advocacy.
  • Territory of Guam v. Davis. This case concerns a unique Fifteenth Amendment challenge to a political referendum Guam undertook under the 2000 Plebiscite Law. The federal territory allowed only “native inhabitants of Guam” to vote on the island’s future political status with the United States. The question presented is whether the Fifteenth Amendment permits Guam to invite only “native inhabitants of Guam” to participate in a potential political-status plebiscite that would yield only a nonbinding, symbolic expression of self-determination preferences.
  • Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.
The Week Ahead

The Justices are off on Monday for the federal holiday. On Tuesday, the Court will release orders from this week’s conference. The next conference will be on Thursday. Surprisingly, the Court will not be releasing opinions next week—likely the last week of the term in which we won’t see any decisions.

Photo Credits: Reuters

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s