Opinion analysis: Unanimous ruling for plaintiffs on punitive damages for embassy bombings

It has been over two decades since al Qaeda operatives detonated bombs outside the U.S. embassies in Kenya and Tanzania, killing over 200 people and injuring thousands more. The victims and their family members later filed a lawsuit in federal court in Washington, D.C., seeking to hold Sudan responsible for its role in providing support for al Qaeda. The trial court awarded them billions of dollars, but a federal appeals court cut that award in half. It ruled that the plaintiffs could not recover punitive damages from Sudan because Congress did not authorize such damages until 10 years after the bombings. Today the Supreme Court unanimously (with Justice Brett Kavanaugh recused) threw out that ruling, setting the stage for billions of dollars in punitive damages to be reinstated.

Although foreign governments normally cannot be sued in U.S. courts, the plaintiffs brought their lawsuit under the Foreign Sovereign Immunities Act, which governs immunity for foreign countries and includes several exceptions to the general bar on lawsuits. One such exception is the “terrorism exception,” enacted in 1996, which allows foreign countries that have been identified as “state sponsors” of terrorism to be sued in U.S. courts for supporting terrorists.

Congress passed another amendment to the FSIA in 2008, to make clear that victims of terrorism can sue a state sponsor of terrorism in federal court and that they can seek punitive damages, which the FSIA otherwise prohibits. The dispute between the plaintiffs and Sudan hinges largely on the interpretation of this 2008 amendment.

In an opinion by Justice Neil Gorsuch, the court began by acknowledging that, as a general rule, laws only apply prospectively. But even so, the court continued, Congress could not have been clearer in authorizing plaintiffs to seek punitive damages for conduct that occurred before it amended the FSIA in 2008. The court explained that Congress “expressly authorized punitive damages under a new cause of action” and then it “explicitly made that new cause of action available to remedy certain past acts of terrorism.” “Neither step,” the court concluded, “presents any ambiguity, nor is the” 2008 amendment “fairly susceptible to any competing interpretation.”

The court rejected Sudan’s suggestion that it should “create and apply a new rule requiring Congress to provide a super-clear statement” before allowing punitive damages for conduct that predates the law at issue. The court conceded that “applying new punishment to completed conduct can raise serious constitutional questions.” “But,” the court added, “if Congress clearly authorizes retroactive punitive damages in a manner the litigant thinks unconstitutional, the better course is for the litigant to challenge the law’s constitutionality,” rather than ask a court to ignore the plain text of the law. In any event, the court reasoned, when it creates rules for interpreting statutes, it tries to come up with workable ones, and “Sudan’s proposal promises more nearly the opposite: How much clearer-than-clear should we require Congress to be when authorizing the retroactive use of punitive damages?”

The court declined to weigh in on a separate question in the litigation – whether punitive damages are available for claims brought under state law by family members who are not U.S. citizens (and therefore could not rely on the new federal cause of action at the heart of this case). Because the plaintiffs did not raise this question in their petition for review, the court explained, “we think it best not to stray into new terrain on the basis of such a meager invitation and with such little assistance.” Having said that, however, the justices noted that the court of appeals had thrown out the punitive damages award to the foreign-national family members who brought their claims under state law “for ‘the same reason’” it relied on to rule against the plaintiffs proceeding under the new federal cause of action. Because “punitive damages are permissible for federal claims,” and “the reasons the court of appeals offered for its contrary decision were mistaken,” the Supreme Court instructed, “the court of appeals must also reconsider its decision concerning the availability of punitive damages for claims proceeding under state law.”

The case will now return to the U.S. Court of Appeals for the District of Columbia Circuit for further proceedings. But for the plaintiffs, today’s ruling was nonetheless a significant victory.

This post was originally published at Howe on the Court.