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On May 18, 2020, the Supreme Court held by a vote of 8-0 that Plaintiffs in a suit against a foreign state for personal injury or death caused by acts of terrorism under 28 U. S. C. § 1605A(c) may seek punitive damages for pre-enactment conduct.

Following the 1998 al Qaeda bombing of American embassies in Kenya and Tanzania, victims and their families brought suit against the Republic of Sudan, alleging that it had assisted al Qaeda in carrying out the attacks.  In doing so, plaintiffs invoked a terrorism exception to the Foreign Sovereign Immunities Act (FSIA)--but there was uncertainty as to whether, even in the absence of an immunity bar, Congress had provided a federal cause of action for claimants such as plaintiffs.  In 2008, however, Congress amended FSIA to provide an express cause of action and directed that claims such as plaintiffs’ be treated “as if ” they had been originally filed under the new cause of action.  Congress also made punitive damages available under the new cause of action and authorized the filing of new claims that arose out of the same incident as earlier claims.  Plaintiffs amended their complaint accordingly and, following a bench trial, obtained a multi-billion dollar damages award, including more than $4 billion in punitive damages.  

Sudan challenged the punitive damages award on appeal, arguing that Congress had not expressly authorized punitive damages based on conduct that predated its 2008 legislation.  The U.S. Court of Appeals for the Second Circuit agreed, but the Supreme Court subsequently granted certiorari to consider whether, consistent with its decision in Republic of Austria v. Altmann, 541 U.S. 677 (2004), FSIA applies retroactively, thereby permitting recovery of punitive damages under 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute. 

By a vote of 8-0, the case was vacated and remanded, in an opinion by Justice Gorsuch on May 18, 2020. Justice Kavanaugh took no part in the consideration or decision of this case.

To discuss the case, we have Roger Alford, Professor of Law at the University of Notre Dame


As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.