Reply Brief — Republic of Sudan, et al., Petitioners v. James Owens, et al.

No. 17-1236

IN THE

Supreme Court of the United States

————

REPUBLIC OF SUDAN, MINISTRY OF EXTERNAL

AFFAIRS AND MINISTRY OF THE INTERIOR OF THE

REPUBLIC OF SUDAN,

Petitioners,

v.

JAMES OWENS, et al.,

Respondents.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

————

REPLY BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

————

CHRISTOPHER M. CURRAN

Counsel of Record

NICOLE ERB

CLAIRE A. DELELLE

FRANK PANOPOULOS

CELIA A. MCLAUGHLIN

NICOLLE KOWNACKI

WHITE & CASE LLP

701 Thirteenth Street, NW

Washington, DC 20005

(202) 626-3600

ccurran@whitecase.com

Counsel for Petitioners

May 22, 2018

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

REPLY BRIEF OF PETITIONERS ............................1

I.

Helmerich Forecloses The D.C. Circuit’s

II.

Only By Applying The Legally Incorrect

“Lighter Burden” Could The Lower Courts

Conclude That Plaintiffs Established

“Material Support” And Causation ..................8

III.

The D.C. Circuit’s “Lighter Burden” Harms

Foreign Relations ............................................11

“Lighter Burden” ...............................................1

ii

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Agudas Chasidei Chabad of U.S. v.

Russian Federation,

528 F.3d 934 (D.C. Cir. 2008) .............................2, 3, 11

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) .................................................... 10

Bolivarian Republic of Venez. v.

Helmerich & Payne Int’l Drilling Co.,

137 S. Ct. 1312 (2017).........................................passim

GDG Acquisitions LLC v. Gov’t of Belize,

849 F.3d 1299 (11th Cir. 2017).................................... 7

Glob. Tech., Inc. v. Yubei (Xinxiang)

Power Steering Sys. Co.,

807 F.3d 806 (6th Cir. 2015)..................................... 6-7

MMA Consultants 1, Inc. v.

Republic of Peru,

719 F. App’x 47 (2d Cir. 2017) ..................................... 6

Owens v. Republic of Sudan,

174 F. Supp. 3d 242 (D.D.C. 2016) .............................. 3

Paroline v. United States,

134 S. Ct. 1710 (2014)................................................ 10

Practical Concepts, Inc. v.

Republic of Bolivia,

811 F.2d 1543 (D.C. Cir. 1987) .................................... 5

iii

Rothstein v. UBS AG,

708 F.3d 82 (2d Cir. 2013) ......................................... 10

Saudi Arabia v. Nelson,

507 U.S. 349 (1993) .................................................. 2, 6

Swarna v. Al-Awadi,

622 F.3d 123 (2d Cir. 2010) ......................................... 6

Universal Trading & Inv. Co. v.

Bureau for Representing Ukrainian

Interests in Int’l & Foreign Courts,

727 F.3d 10 (1st Cir. 2013) .......................................... 7

Verlinden B.V. v. Cent. Bank of Nigeria,

461 U.S. 480 (1983) .................................................... 12

FEDERAL STATUTES AND RULES

28 U.S.C. § 1391 ................................................................ 7

28 U.S.C. § 1604 ................................................................ 2

Fed. R. Evid. 804 ............................................................... 9

OTHER AUTHORITIES

Brief for the United States as Amicus Curiae,

Bolivarian Republic of Venezuela v.

Helmerich & Payne Int’l Drilling Co.,

137 S. Ct. 1312 (May 24, 2016) (No. 15-423) .............. 5

Brief for the United States as Amicus Curiae

Supporting Petitioners, Bolivarian

Republic of Venezuela v. Helmerich

& Payne Int’l Drilling Co.,

137 S. Ct. 1312 (Aug. 26, 2016) (No. 15-423) .............. 5

House Report (Judiciary Committee) No. 94-1487 .......... 2

REPLY BRIEF OF PETITIONERS

In applying a “lighter burden” for establishing

facts necessary for jurisdiction, the D.C. Circuit

defied this Court’s decision in Helmerich; overrode

the presumptive immunity enacted in the FSIA;

permitted the affirmance of a jurisdictionally

unsound multi-billion-dollar default judgment

against a foreign state; and exposed the United

States to friction in foreign relations and reciprocal

treatment in foreign courts.

The D.C. Circuit’s

application of an incorrect jurisdictional standard

was a quintessential error of law that pervaded the

court’s analysis of the jurisdictional requirements of

“material support” and causation.

In opposing a writ of certiorari, Respondents

admit that the D.C. Circuit applied a “lighter burden”

for establishing jurisdictional facts, but Respondents

try to explain away the “lighter burden” as part of a

supposedly “well-established” FSIA burden-shifting

framework. Opp’n 8-10, 13, 19-21. That burdenshifting

framework,

however,

conflicts

with

Helmerich and also conflicts with the burden-shifting

framework applied in other circuits.

A writ of certiorari is necessary to clarify the

proper legal standard for establishing subject-matter

jurisdiction under the FSIA.

I. Helmerich Forecloses The D.C. Circuit’s “Lighter

Burden”

In Helmerich, this Court rejected the notion that

FSIA jurisdiction could ever be established on the

basis of an arguable or “non-frivolous” showing of the

legal and factual grounds for jurisdiction; instead, a

2

plaintiff is required to “prove” and “show (and not

just arguably show)” the actual existence of

jurisdiction, and a court is required to resolve factual

disputes and reach a decision finding that jurisdiction

exists. Helmerich, 137 S. Ct. at 1316, 1318-19, 1324.

This Court reasoned that the FSIA requires such

an approach, given the FSIA’s baseline presumption

of immunity from jurisdiction. Id. at 1320 (observing

that FSIA “starts from a premise of immunity and

then creates exceptions to the general principle”)

(citing H.R. Rep. No. 94-1487, at 17); 28 U.S.C. § 1604

(“a foreign state shall be immune from the

jurisdiction of the courts of the United States and of

the States except as provided” by the FSIA’s

exceptions). See also Saudi Arabia v. Nelson, 507

U.S. 349, 355 (1993) (“[A] foreign state is

presumptively immune from the jurisdiction of

United States courts; unless a specified [FSIA]

exception applies, a federal court lacks subject-matter

jurisdiction over a claim against a foreign state.”).

Here, the D.C. Circuit’s own words — expressly

acknowledging it was applying a “lighter burden” as

to “material support and causation for jurisdictional

purposes” (App. 42a (citing Chabad, 528 F.3d at 940))

— demonstrate the conflict with Helmerich. But the

D.C. Circuit, in its decision, also expressly

acknowledged Helmerich and the overruling of

Chabad’s “non-frivolous” standard. App. 42a. The

D.C. Circuit even stated Helmerich’s core holding,

accurately, as “requiring a plaintiff to prove the facts

supporting the court’s jurisdiction under the FSIA.”

App. 42a. Thus, the D.C. Circuit presented a seeming

internal inconsistency, both contradicting and

acknowledging Helmerich.

3

Respondents maintain, not unreasonably, that the

D.C. Circuit’s reference to a “lighter burden,” with

the accompanying citation to Chabad, must relate not

to the “non-frivolous” standard discussed in Chabad,

528 F.3d at 940, but to an earlier discussion on that

same page about a burden-shifting framework under

which a plaintiff bears a burden of production and a

foreign-state defendant bears the burden of

persuasion. Opp’n 13, 19-20. If Respondents’ reading

of the D.C. Circuit decision is correct, it only confirms

the conflict with Helmerich.

While Respondents suggest that the district court

did in fact conclusively establish the jurisdictional

facts as Helmerich requires (Opp’n 13, 18), that

suggestion is false (even with respect to those

plaintiffs asserting claims under D.C. law). Instead,

the district court employed a burden-shifting

framework that excused plaintiffs from establishing

the jurisdictional facts, and the D.C. Circuit affirmed

on that basis.

The district court, at the page cited by the D.C.

Circuit (App. 43a (citing to 174 F. Supp. 3d at 276,

which is found at App. 521a-523a)), expressly

explained the burden it was imposing on plaintiffs to

establish the jurisdictional elements of “material

support” and causation. That burden was merely to

satisfy a “burden of production,” which the district

court described as a modest requirement:

The point is: the bar is relatively low.

Yes, the existence of the burden of

production means that the plaintiff

must provide some evidence that could

convince

a

factfinder

of

the

4

jurisdictional fact in question.

But

because the ultimate burden of

persuasion lies with the defendant, in

cases where the defendant offers little

or no evidence of its own, even a meager

showing by the plaintiff will suffice.

App. 522a (emphasis in original). Thus, far from

requiring the plaintiffs to satisfy or establish the

exception to immunity, the district court set a

“relatively low” bar, merely requiring the plaintiffs to

present “some” evidence, even if it constituted a

“meager showing.”

The district court’s relaxed

burden is reminiscent of the “non-frivolous” and

“arguabl[e]” standard — an “exceptionally low bar” —

condemned in Helmerich, 137 S. Ct. at 1318.

In describing “the burden of proof applicable to a

FSIA case,” the D.C. Circuit echoed the district

court’s view that a plaintiff bears only an “initial

burden of production” while the foreign-state

defendant bears “the ultimate burden of persuasion

to show the exception does not apply” (and “by a

preponderance of the evidence”). App. 55a (echoing

district court decision (521a-522a)). The D.C. Circuit

plainly understood the significance of this burdenshifting framework: “if a plaintiff satisfies his burden

of production and the defendant fails to present any

evidence in rebuttal, then jurisdiction attaches.”

App. 55a (echoing district court decision (522a)).

In this context, as Respondents recognize (Opp’n

9), the D.C. Circuit seems to clarify what it meant by

a “lighter burden” for jurisdictional purposes:

Although a court gains jurisdiction

over a claim against a defaulting

5

defendant when a plaintiff meets his

burden of production, the plaintiff must

still prove his case on the merits. This

later step, however, does not affect the

court’s jurisdiction over the case, and a

defaulting defendant normally forfeits

its right to raise nonjurisdictional

objections. See Practical Concepts, 811

F.2d at 1547. Thus, the only question

before this court is whether the

plaintiffs have met their rather modest

burden of production to establish the

court’s jurisdiction.

App. 55a. Thus, the D.C. Circuit contemplates that a

plaintiff bears the “lighter burden” of a burden of

production — which is a “relatively low” bar that can

be satisfied by a “meager” or “rather modest” showing

of “some” evidence — even though the plaintiff bears

a higher burden of proving its claim on the merits.

To circumvent a conflict with Helmerich,

Respondents argue that Helmerich’s holding should

be limited to cases under the FSIA’s expropriation

exception, but that argument is meritless. The

reasoning of Helmerich applies equally to cases under

any of the FSIA’s exceptions, because the

presumption of immunity applies equally to all such

cases, a point clear from Helmerich itself and from

the amicus briefs submitted by the Solicitor General

and State Department. Brief for the United States as

Amicus Curiae at 7-8, Helmerich, No. 15-423 (May

24, 2016); Brief for the United States as Amicus

Curiae Supporting Petitioners at 9-11, Helmerich,

No. 15-423 (Aug. 26, 2016). And the D.C. Circuit

certainly understood Helmerich to apply to this case,

6

for it tried (unsuccessfully) to comply with it. Indeed,

Respondents

themselves

acknowledged

that

Helmerich applies in this case, stating as much in

their letter to the D.C. Circuit under Rule 28(j) of the

Federal Rules of Appellate Procedure after Helmerich

was decided. See Letter, Owens v. Republic of Sudan,

No. 14-5105 (D.C. Cir. May 2, 2017), ECF No.

1673547.

Nor can Respondents distinguish Helmerich on

the basis that the facts were stipulated there and are

contested here. Opp’n 14, 21. In Helmerich, this

Court stated repeatedly, and as an express part of its

holding, that where jurisdictional facts are in dispute

the court has to resolve those disputes. Helmerich,

137 S. Ct. at 1316-17, 1324.

Respondents also attempt to portray the burdenshifting framework employed by the lower courts

here as “well-established” and, indeed, “adopted by

every circuit to address the issue” (Opp’n 13, 20), but

those statements are demonstrably false. The FSIA

has long been understood to create presumptive

immunity, see, e.g., Nelson, 507 U.S. at 355, such

that some “meager” showing by a plaintiff would be

insufficient to overcome the presumption. Thus, the

Second Circuit has held, both before and after

Helmerich, that to overcome a foreign state’s

presumptive immunity a plaintiff must establish by

“a preponderance of the evidence” that an exception

applies. See, e.g., MMA Consultants 1, Inc. v.

Republic of Peru, 719 F. App’x 47, 51 (2d Cir. 2017);

Swarna v. Al-Awadi, 622 F.3d 123, 143 (2d Cir. 2010).

Other circuits are aligned with the Second

Circuit’s approach. See, e.g., Glob. Tech., Inc. v.

7

Yubei (Xinxiang) Power Steering Sys. Co., 807 F.3d

806, 811 (6th Cir. 2015) (“AVIC is therefore presumed

to be immune from suit, and the burden of production

shifts to the plaintiff to rebut this presumption by

showing that an enumerated exception applies.”);

Universal Trading & Inv. Co. v. Bureau for

Representing Ukrainian Interests in Int’l & Foreign

Courts, 727 F.3d 10, 17 (1st Cir. 2013) (“[H]aving

accepted that defendants fit within the definition of

‘foreign sovereign,’ the burden of production is on

UTICo to offer evidence showing that, under one of

the listed exceptions, immunity should not be granted

to the Ukrainian defendants.”).

But see GDG

Acquisitions LLC v. Gov’t of Belize, 849 F.3d 1299,

1306 (11th Cir. 2017) (“If the plaintiff ‘has asserted

facts suggesting that an exception to foreign

sovereign immunity exists, the party arguing for

immunity . . . bears the burden of proving by a

preponderance of the evidence that the exception does

not apply.’”).

Thus, the D.C. Circuit’s “lighter burden” is not

only in conflict with Helmerich but is part of a deep

and mature split that exists among the circuits as to

the appropriate standard for establishing FSIA

jurisdiction, and specifically as to the showing a

plaintiff must make to overcome a foreign state’s

presumptive immunity. This circuit split invites

forum shopping, because under the FSIA the D.C.

Circuit is always a venue available to a plaintiff (28

U.S.C. § 1391(f)(4)), and that circuit imposes an

exceedingly relaxed burden on plaintiffs. A writ of

certiorari is warranted to clarify that the D.C.

Circuit’s “lighter burden” for jurisdiction cannot

survive Helmerich.

8

II. Only By Applying The Legally Incorrect “Lighter

Burden” Could The Lower Courts Conclude That

Plaintiffs Established “Material Support” And

Causation

In addressing whether plaintiffs had satisfied

their “lighter burden” of establishing jurisdiction, the

district court elected not to attempt to resolve

Sudan’s challenge to the admissibility of all of the

evidence presented. App. 521a (“The question is not

whether every factual proposition in the Court’s 2011

opinion can be substantiated by record evidence

admissible under the Federal Rules of Evidence.

Sudan may have plausible arguments that some

cannot.”). Instead, while asserting that “the record

contains much else as well,” the district court relied

solely upon the opinions of plaintiffs’ expert

witnesses.

App. 523a.

And the district court

emphasized that it was not relying upon any of the

factual content in the experts’ testimony, but solely

upon their “ultimate conclusions.”

App. 529a.

Indeed, the district court ridiculed Sudan for

“spill[ing] a great deal of ink attacking as

inadmissible hearsay particular statements the

experts made in the course of explaining the bases for

their opinions.”

App. 529a-530a (adding:

“the

admissibility of statements along the way is

irrelevant if — as the Court concludes —the ultimate

opinions themselves are sufficient”). The district

court concluded:

“In sum, the consistent and

admissible opinions of these three experts were

sufficient to satisfy the plaintiffs’ burden of producing

evidence that Sudan provided ‘material support’ that

‘caused’ the embassy bombings. . . . The Court

therefore had subject-matter jurisdiction to decide

the plaintiffs’ claims.” App. 531a-532a.

9

The D.C. Circuit agreed. App. 67a. In doing so, it

too expressly relied upon the D.C. Circuit’s forgiving

standard:

“In short, the plaintiffs have offered

sufficient admissible evidence that establishes that

Sudan’s material support of al Qaeda proximately

caused the 1998 embassy bombings. The district

court, therefore, correctly held the plaintiffs met their

burden of production under the FSIA terrorism

exception.” App. 88a.

Respondents emphasize that the district court and

the D.C. Circuit, in their opinions, referred to other

proffered evidence, beyond the “ultimate conclusions”

of plaintiffs’ experts.

But those references are

irrelevant, as such other evidence was not relied upon

by the district court in its 2016 conclusion that

plaintiffs had satisfied their burden of production.

Furthermore, the only other evidence referred to by

the district court in its 2016 decision — transcripts of

testimony by al-Fadl and two others in proceedings in

which Sudan was not a party — were found by the

D.C. Circuit not to be admissible under Rule 804(b)(1)

of the Federal Rules of Evidence. App. 75a n.5. And,

when stating that “the district court did not rely

solely upon expert testimony to establish jurisdiction

and liability,” the D.C. Circuit was plainly referring

to the district court’s initial 2011 decision, not the

2016 decision in which the district court explained its

basis for finding that plaintiffs had satisfied their

burden of production. App. 72a. When addressing

the district court’s 2016 decision, the D.C. Circuit

agreed with the district court that the experts’

“ultimate conclusions” were sufficient for plaintiffs to

satisfy their “lighter burden” of establishing “the

necessary jurisdictional facts.” App. 67a.

10

That same “lighter burden” also allowed the D.C.

Circuit to find jurisdictional causation even while

acknowledging that “the evidence failed to show

Sudan either specifically intended or directly

advanced the 1998 embassy bombings.” App. 88a.

Such a departure from ordinary principles of

proximate causation can only be explained by a

standard satisfied by “some” evidence, even if

“meager” or “modest.” And Respondents’ suggestion

of a waiver by Sudan (Opp’n 26) is unfounded, as

Sudan expressly argued the traditional elements of

proximate cause, citing among other authorities the

leading case of Paroline v. United States, 134 S. Ct.

1710 (2014), at the specific page identifying

directness among the elements.

DefendantsAppellants’ Opening Brief at 27, Owens, No. 14-5105

(D.C. Cir. Aug. 19, 2016), ECF No. 1631291 (citing

134 S. Ct. at 1719). Sudan even block-quoted from

Rothstein v. UBS AG part of a discussion on the

directness requirement of proximate cause. See 708

F.3d 82, 91-92 (2d Cir. 2013) (quoting as part of that

discussion Anza v. Ideal Steel Supply Corp., 547 U.S.

451, 461 (2006) (“with respect to ‘proximate

causation, the central question . . . is whether the

alleged violation led directly to the plaintiff’s

injuries’”)).

While Respondents attempt to portray Sudan’s

petition as seeking this Court’s review of “factual

determinations” (Opp’n 12), that is not the case.

Sudan seeks review of the legal standard that the

D.C. Circuit applied in assessing jurisdiction. And, in

doing so, Sudan maintains that the D.C. Circuit’s

legally erroneous standard led the court to accept a

meager showing as establishing the jurisdictional

facts of “material support” and causation.

11

III. The D.C. Circuit’s “Lighter Burden” Harms

Foreign Relations

The D.C. Circuit’s jurisdictional standard makes it

exceedingly easy for a plaintiff to overcome a foreign

state’s presumptive immunity. All a plaintiff must do

is to present “some” evidence that an exception to

immunity applies, even if that evidence constitutes a

“meager” or “modest” showing. Such a low burden

makes the presumptive immunity an empty promise.

The D.C. Circuit’s standard applies whether or not

a foreign sovereign appears in court, as Chabad and

this case show. Where a foreign sovereign does

appear, the plaintiff’s low burden means that the

burden of persuasion shifts easily to the foreign

sovereign; imposing a burden upon a foreign

sovereign so readily is itself a form of asserting

jurisdiction over the sovereign and carries a

substantial risk of offense. Where a foreign sovereign

does not appear, the low burden means that the court

is asserting jurisdiction essentially regardless of the

legitimacy of doing so, because even in most meritless

cases a plaintiff will be able to muster “some”

evidence. And once jurisdiction is found, relief from

it cannot be ensured, even if the jurisdiction is

unfounded; as this case shows, doctrines of waiver

can combine with limited appellate review to insulate

a jurisdictional finding from meaningful review.

Foreign sovereigns reasonably may find offensive

the notion that they can be so readily subjected to the

burdens and exposures of litigation in the U.S. courts.

They may understandably consider principles of

comity as well as customary international-law

12

standards to require greater protection of their

immunities.

As this Court has recognized repeatedly, including

in Helmerich, the United States is constantly

subjected to litigation in foreign courts around the

world. Helmerich, 137 S. Ct. at 1322. Weak respect

for the immunity of foreign sovereigns in the U.S.

courts should be expected to be reciprocated by

foreign plaintiffs and foreign courts in cases against

the United States. Id.

In asserting that “[t]his case does not present any

foreign relations concerns” (Opp’n 29), Respondents

ignore that foreign-relations concerns arise whenever

a court of one sovereign asserts jurisdiction over

another sovereign, even when the court applies

conventional legal rules rather than a “lighter

burden.” Verlinden B.V. v. Cent. Bank of Nigeria,

461 U.S. 480, 493 (1983) (“Actions against foreign

sovereigns in our courts raise sensitive issues

concerning the foreign relations of the United

States.”). Respondents also ignore the case-specific

foreign relations concerns that are implicated when

U.S. courts, applying a “lighter burden” in a default

proceeding, find a foreign sovereign to be subject to

jurisdiction and liable for billions of dollars in

damages for providing “material support” that

supposedly caused deadly terrorist attacks upon U.S.

embassies abroad.

Given the stakes, the D.C. Circuit cannot be

excused from its failure to invite the views of the

United States. That the United States declined to

express its views “at this time” in the district court

(Opp’n 31 (citing U.S. filings)) in no way suggested

13

that the United States would have declined to

express its views on appeal.

Respectfully submitted,

Christopher M. Curran

Counsel of Record

Nicole Erb

Claire A. DeLelle

Frank Panopoulos

Celia A. McLaughlin

Nicolle Kownacki

White & Case LLP

701 Thirteenth Street, NW

Washington, DC 20005

(202) 626-3600

ccurran@whitecase.com

Counsel for Petitioners

May 22, 2018