United States Court of Appeals, District of Columbia Circuit
February 8, 2019
Appeals from the United States District Court for the
District of Columbia Nos. 1:16-cv-00280, 1:16-cv-01507,
1:14-cv-02090, 1:15-cv-00951, 1:14-cv-02118, 1:16-cv-01549
M. Schneebaum argued the cause and filed the briefs for
appellants Henri Maalouf, et al.
H. Newberger, Clifton S. Elgarten, Aryeh S. Portnoy, John L.
Murino, and Emily M. Alban were on the brief for amici curiae
Smith plaintiffs in support of appellants.
Jonathan S. Massey was on the brief for amicus curiae
Professor Stephen I. Vladeck supporting
Hashimoto, Director, and Marcella Coburn, Attorney, both
appointed by the court, argued the causes as amicus curiae in
support of the District Courts' Orders in No. 18-7052, et
al., No. 18-7060, et al., and No. 18-7122, et al. With them
on the brief were Rebecca Deucher, Sean Lavin, and James
O'Toole, Student Attorneys.
Christopher M. Curran, Nicole Erb, Claire A. DeLelle, and
Celia A. McLaughlin were on the brief for amicus curiae The
Republic of Sudan in support of the court appointed amicus
L. Shaffer argued the cause for appellants Nasrin Sheikh, et
al. With him on the briefs were Stephen M. Hauss, Chun,
Nazareth M. Haysbert, and Daniel Sage Ward.
Clifton S. Elgarten argued the cause for appellants Rita
Bathiard, et al. On the briefs were Thomas Fortune Fay,
Amanda Fox Perry, and John Vail.
Before: Srinivasan and Pillard, Circuit Judges, and Edwards,
Senior Circuit Judge.
EDWARDS, SENIOR CIRCUIT JUDGE.
April 18, 1983, and September 20, 1984, the militant group
Hezbollah detonated car bombs outside United States
diplomatic facilities in Beirut, Lebanon, killing dozens and
wounding many more. On August 7, 1998, truck bombs exploded
outside the U.S. embassies in Nairobi, Kenya, and Dar es
Salaam, Tanzania, killing more than two hundred and injuring
more than a thousand. These two bombings were the work of al
Qaeda. In the decades since, the Islamic Republic of Iran has
been linked to all four bombings, while the Republic of
Sudan's support for al Qaeda has implicated it in the
sovereigns are generally immune from suit in U.S. courts.
However, district courts in this Circuit have found Iran and
Sudan liable for the attacks in numerous suits filed by
victims and their families under the terrorism exception of
the Foreign Sovereign Immunities Act (FSIA), the statute
governing the amenability of foreign nations to lawsuits in
the United States. The FSIA's terrorism exception was
first enacted in 1996 but was replaced in 2008 with,
inter alia, a more expansive provision allowing for
suits by non-U.S. nationals.
consolidated opinion, we address six cases arising from the
Beirut, Nairobi, and Dar es Salaam attacks. Plaintiffs in
three of the suits are family members or estates of victims
of the 1998 bombings. The plaintiffs in these cases named
Sudan and Iran as defendants. The remaining three actions
seek damages from Iran for deaths and injuries resulting from
the 1983 and 1984 attacks. The first five suits were assigned
to the same District Court Judge, including all of the
complaints against Sudan, which successfully moved to dismiss
the claims against it as untimely. Iran, in contrast, failed
to appear to defend the complaints raised against it. The
plaintiffs moved for default judgment against Iran. The
District Court, however, acted sua sponte to
consider whether the complaints against Iran were timely.
After briefing from the parties, the District Court ruled
that the claims against Iran were untimely, denied the
motions for default judgment, and dismissed plaintiffs'
actions. The District Court Judge assigned to the sixth case
followed suit on the same grounds.
plaintiffs now appeal the dismissals of their claims against
Iran, contending that the District Courts erred in raising
the statute of limitations sua sponte and in
dismissing their complaints as untimely. One group of
plaintiffs also challenges the denial of motions for relief
from judgment that they filed after their claims were
not reach the statute of limitations issue or the
post-judgment motions. Rather, we conclude that the District
Court lacks authority to sua sponte raise a
forfeited statute of limitations defense in an FSIA terrorism
exception case, at least where the defendant sovereign fails
to appear. We therefore reverse the judgments of the District
Courts, vacate the dismissals of the complaints, and remand
for further proceedings.
The FSIA and the Terrorism Exception
FSIA, enacted in 1976, "provides the sole means for
suing a foreign sovereign in the courts of the United
States." Owens v. Republic of Sudan, 864 F.3d
751, 763 (D.C. Cir. 2017). The statute establishes that
foreign states are "presumptively immune from the
jurisdiction of the federal and state courts, 28 U.S.C.
§ 1604, subject to several exceptions codified in
§§ 1605, 1605A, 1605B, and 1607." Id.
These include the "terrorism exception," which
A foreign state shall not be immune from the jurisdiction of
courts of the United States or of the States in any case not
otherwise covered by this chapter in which money damages are
sought against a foreign state 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 for such an act if such act or
provision of material support or resources is engaged in by
an official, employee, or agent of such foreign state while
acting within the scope of his or her office, employment, or
28 U.S.C. § 1605A(a)(1); see also id. §
1605A(a)(2)(A)(i)(I) (stating that the foreign state must
have been designated a "state sponsor of
terrorism"); id. § 1605A(h)(6) (explaining
that the term "state sponsor of terrorism" means
"a country the government of which the Secretary of
State has determined . . . is a government that has
repeatedly provided support for acts of international
adopted the first version of the terrorism exception,
codified until its repeal at 28 U.S.C. § 1605(a)(7), as
part of the Antiterrorism and Effective Death Penalty Act
(AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214. See
Owens, 864 F.3d at 763. A key feature of the original
statutory regime was that only U.S. nationals were eligible
to file suit. See 28 U.S.C. § 1605(a)(7)
(repealed 2008); see also Owens, 864 F.3d at 763.
After several courts adopted narrow interpretations of the
exception, including that it did not create a cause of action
against foreign states, Congress enacted § 1083 of the
National Defense Authorization Act for Fiscal Year 2008 (the
NDAA), which repealed § 1605(a)(7) and replaced it with
the current terrorism exception, 28 U.S.C. § 1605A. Pub.
L. No. 110-181, § 1083, 122 Stat. 3, 338-44 (2008)
(codified at 28 U.S.C. § 1605A). Among other new
provisions, the revised exception explicitly established a
federal cause of action for victims of terror attacks and
their families to seek damages from state sponsors of
terrorism that took part in an attack or materially supported
the perpetrators. See 28 U.S.C. § 1605A(c);
see also Owens, 864 F.3d at 765.
the new terrorism exception makes causes of action available
not only to U.S. nationals, but also to any
"claimant" or "victim" who was an
employee of the U.S. government or of a U.S. government
contractor at the time of a terrorist act and was acting
within the scope of his or her employment, or was a member of
the armed forces. 28 U.S.C. § 1605A(a)(2)(A)(ii);
see also Owens, 864 F.3d at 765. The NDAA also
replaced the prior statute of limitations for the exception
with the following provision:
An action may be brought or maintained under this section if
the action is commenced, or a related action was commenced
under section 1605(a)(7) (before the date of the enactment of
this section) . . . not later than the latter of- (1) 10
years after April 24, 1996; or (2) 10 years after the date on
which the cause of action arose.
28 U.S.C. § 1605A(b).
Another provision, enacted as § 1083(c) of the NDAA,
pertaining to the "Application to Pending Cases,"
also concerns the timeliness of claims arising under the
terrorism exception. This provision states:
(3) Related actions-If an action arising out of an act or
incident has been timely commenced under section 1605(a)(7)
of title 28, United States Code, or section 589 of the
Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 1997 (as contained in section 101(c) of
division A of Public Law 104-208), any other action arising
out of the same act or incident may be brought under section
1605A of title 28, United States Code, if the action is
commenced not later than the latter ...