Opati v. Republic of Sudan
Wikipedia · Justia · Docket · oyez.org
Argued on Feb 24, 2020.
Petitioner: Monicah Okoba Opati, et al..Respondent: Republic of Sudan, et al..
Advocates: Matthew D. McGill (for the Petitioners)
Erica L. Ross (for the United States, as amicus curiae supporting the Petitioners)
Christopher M. Curran (for the Respondents)
Facts of the case (from oyez.org)
In 1998, truck bombs exploded outside the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, killing over 200 people and injuring over a thousand. It was later discovered that al Qaeda was behind these bombings and that Sudan allegedly provided material support to al Qaeda in the form of safe harbor and training.
Starting in 2001, victims of the bombings began to bring lawsuits against Sudan and Iran in U.S. courts under a provision of the Foreign Sovereign Immunities Act (FSIA) that withdraws sovereign immunity and grants courts jurisdiction to hear suits against foreign states designated as sponsors of terrorism. When Sudan and Iran did not appear to defend these cases, the district court entered default judgments against them in several cases, including $4.3 billion in punitive damages. Sudan then appeared, filing appeals and motions to vacate the judgments. The district court denied Sudan’s motions to vacate, and Sudan again appealed.
On appeal, the U.S. Court of Appeals for the D.C. Circuit held that FSIA does not permit the recovery of punitive damages arising from terrorist activities that occurred before Congress amended the law in 2008 to authorize punitive damages. The court pointed out that there is a strong presumption against retroactivity unless Congress made clear its intent. In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the U.S. Supreme Court noted that retroactive authorization of punitive damages “would raise a serious constitutional question.” Because the FSIA terrorism exception does not contain a clear statement of retroactive effect yet operates retroactively, the Tenth Circuit vacated the award of punitive damages under the federal cause of action.

Question
Does the Foreign Sovereign Immunities Act (FSIA) apply retroactively to permit recovery of punitive damages against foreign states for terrorist activities that occurred prior to the passage of the current version of the statute?