Reply Brief — Republic of Sudan, et al., Petitioners v. Monicah Okoba Opati, In Her Own Right, and as Executrix of the Estate of Caroline Setla Opati, Deceased, et al.

No. 17-1406

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,

Cross-Petitioners,

v.

MONICAH OKOBA OPATI, IN HER OWN RIGHT,

AS EXECUTRIX OF THE ESTATE OF CAROLINE

SETLA OPATI, DECEASED, ET AL.,

Cross-Respondents.

————

On Conditional Cross-Petition for a

Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

————

REPLY BRIEF IN SUPPORT OF

CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI

————

CHRISTOPHER M. CURRAN

Counsel of Record

NICOLE ERB

CLAIRE A. DELELLE

CELIA A. MCLAUGHLIN

NICOLLE KOWNACKI

WHITE & CASE LLP

701 Thirteenth Street, NW

Washington, DC 20005

(202) 626-3600

ccurran@whitecase.com

Counsel for Cross-Petitioners

the Republic of the Sudan,

the Ministry of External

Affairs of the Republic of the

Sudan, and the Ministry

of the Interior of the

Republic of the Sudan

May 22, 2018

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

TABLE OF CONTENTS

Page

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

REPLY BRIEF FOR CROSS-PETITIONERS ........... 1

CONCLUSION ......................................................... 11

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Bettis v. Islamic Republic of Iran,

315 F.3d 325 (D.C. Cir. 2003) ................................ 2

Dolan v. U.S. Postal Serv.,

546 U.S. 481 (2006) ................................................ 4

Jesner v. Arab Bank, PLC,

200 L. Ed. 2d 612 (2018) ................................ 5, 6, 7

Kadić v. Karadžić,

70 F.3d 232 (2d Cir. 1995) ...................................... 5

Leibovitch v. Islamic Republic of Iran,

697 F.3d 561 (7th Cir. 2012) .................................. 2

Musacchio v. United States,

136 S. Ct. 709 (2016) .............................................. 4

Rubin v. Islamic Republic of Iran,

138 S. Ct. 816 (2018) .............................................. 4

United States v. Wong,

135 S. Ct. 1625 (2015) ........................................... 8

FEDERAL STATUTES

28 U.S.C. § 1605A ...............................................passim

28 U.S.C. § 1606 ....................................................... 6, 7

28 U.S.C. § 1610 ........................................................... 4

iii

LEGISLATIVE MATERIALS

The Foreign Sovereign Immunities Act:

Hearing on S. 825 Before the Subcomm.

on Courts and Admin. Practice of the

S. Comm. on the Judiciary,

103d Cong. 2 (1994) ............................................... 5

S. Rep. No. 102-249 (1991) .......................................... 5

BRIEFS OF THE UNITED STATES

Brief of the United States as

Amicus Curiae Supporting Reversal,

Kumar v. Republic of Sudan,

880 F.3d 144 (4th Cir. 2018) (No. 16-2267) ........... 2

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

REPLY BRIEF FOR CROSS-PETITIONERS

Cross-Respondents do not seriously engage with

the important foreign-relations implications of the

D.C. Circuit’s decision under 28 U.S.C. § 1605A.

They focus instead on the perceived lack of a conflict

among the circuits concerning the issues raised by

Sudan’s Conditional Cross-Petition. Owens CrossPet. Opp’n 10-11; 12. But as Sudan has argued, the

Opati Petition itself does not raise any issue that

conflicts with any decision of this Court or of any of

the courts of appeals. Sudan’s Opp’n 11-26. The

Opati Petition also does not present any issue that

would otherwise warrant this Court’s review and

accordingly should be denied. See generally id. at 1127.

If the Court nonetheless grants the Opati Petition,

however, the Court also should grant Sudan’s CrossPetition. Given that Sudan is the only foreign state

to challenge over a decade’s worth of decisions

misinterpreting § 1605A in the default context, the

lack of conflict at the circuit level is hardly

surprising. Moreover, the issues raised in the CrossPetition are unlikely to receive any future percolation

in the circuits.

And though Cross-Respondents assert that courts

have “uniformly adopted” the D.C. Circuit’s

conclusions, they cite primarily decisions from the

D.C. District Court in the default-judgment context.

See, e.g., Owens Cross-Pet. Opp’n 16, 20. These

decisions hardly demonstrate a reason to deny

Sudan’s Cross-Petition.

To the contrary, they

establish precisely why the Court should extend any

writ granted in respect of the Opati Petition to

2

Sudan’s Cross-Petition:

the D.C. District Court

serves as the principal venue for § 1605A cases,

which are decided largely in the default context and

frequently lack appellate review.

Although the D.C. District Court is not the

exclusive venue for § 1605A actions (Owens CrossPet. Opp’n 11), in reality the D.C. District Court

remains the principal venue and is looked upon by

other courts as a persuasive authority in cases

involving the FSIA terrorism exception. Brief of the

United States as Amicus Curiae Supporting Reversal

at 9, Kumar v. Republic of Sudan, 880 F.3d 144 (4th

Cir. 2018) (No. 16-2267) (advising the Fourth Circuit

that the “D.C. Circuit’s interpretation is particularly

instructive because most suits against foreign states

(as opposed to suits against foreign state agencies or

instrumentalities) are brought in that circuit”);

Leibovitch v. Islamic Republic of Iran, 697 F.3d 561,

566 n.2 (7th Cir. 2012) (turning to D.C. District Court

cases for “guidance” because it “has adjudicated the

vast majority of suits under the FSIA’s terrorism

exception”); see also Bettis v. Islamic Republic of

Iran, 315 F.3d 325, 332 (D.C. Cir. 2003) (describing

the District of Columbia as “the dedicated venue for

actions against foreign states”). Given the singular

importance of the D.C. Circuit’s conclusions under

§ 1605A, those conclusions merit this Court’s review.

Despite Cross-Respondents’ suggestion otherwise

(Owens Cross-Pet. Opp’n 11), case-law statistics

confirm that the D.C. District Court holds a

preeminent place in the field of terrorism litigation.

A review of the federal dockets shows that the D.C.

3

District Court is responsible for 116 of the 129 default

judgments entered against state sponsors of

terrorism under § 1605A, or its predecessor

§ 1605(a)(7), in the past twenty years. Based on that

review, those 116 D.C. District Court cases comprise

a staggering $47 billion in default judgment damages

awards, representing over eighty-five percent of the

total default damages awards entered in all 129

cases.

Today, forty-nine § 1605A actions are currently

pending before U.S. district courts. Forty-four of

those cases are pending before the D.C. District

Court.

No foreign states, except Sudan, have

appeared or likely will appear in those cases. Indeed,

the D.C. Circuit is the only court of appeals to have

addressed each of the fundamental issues of statutory

interpretation raised in Sudan’s Petition and CrossPetition. Sudan’s Cross-Petition shows that the D.C.

Circuit’s unchecked decision will only entrench the

D.C. District Court as the principal clearinghouse for

actions against state sponsors of terrorism and

perpetuate ill-founded decisions awarding multimillion-dollar (if not multi-billion-dollar) default

judgments against these foreign states.

The Cross-Petition therefore presents, as Sudan

has stated, a unique opportunity for this Court to

provide much needed guidance on § 1605A. Such

guidance is all the more important because cases

against the foreign states named as defendants in

§ 1605A actions are the most likely to implicate the

most sensitive of U.S. foreign-relations concerns.

4

All of the issues raised in Sudan’s Cross-Petition

are important. They are also placed squarely at issue

by the Opati Petition — a fact the Owens CrossRespondents overlook (see, e.g., Cross-Pet. 25 (citing

Pet. 19-21); id. at 29 (citing Pet. 30)). The D.C.

Circuit failed to follow several of this Court’s

decisions on fundamental rules of statutory

construction, particularly those applicable in the

FSIA context. Thus, if the Court grants the Opati

Petition on the issue of retroactive punitive damages,

it should hear as well Sudan’s challenge of the D.C.

Circuit’s deeply flawed interpretation of the

foundational provisions of § 1605A.

Contrary to this Court’s precedent, the D.C.

Circuit improperly interpreted or ignored the text,

context, purpose, and legislative history of § 1605A’s

various subsections. When properly considered, those

sources confirm Sudan’s interpretation of a narrow

terrorism exception to foreign sovereign immunity.

See Rubin v. Islamic Republic of Iran, 138 S. Ct. 816,

825 (2018) (interpreting 28 U.S.C. § 1610(g)

“consistent with the history and structure of the

FSIA”); Musacchio v. United States, 136 S. Ct. 709,

717 (2016) (examining the “text, context, and relevant

historical treatment of the provision at issue”

(internal quotations marks and citation omitted));

Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006)

(instructing that statutory terms must be read in

light of “the whole statutory text, considering the

purpose and context of the statute, and consulting

any precedents or authorities that inform that

analysis”).

5

1. Contrary to the D.C. Circuit’s Opinion,

“extrajudicial killing” is a unique term of art derived

from international law. The text, context, and history

of § 1605A make clear that an “extrajudicial killing,”

as defined in the TVPA and incorporated into

§ 1605A, means a summary execution by a state

actor. See, e.g., S. Rep. No. 102-249, at 6 (1991) (“The

TVPA incorporates into U.S. law the definition of

extrajudicial killing found in customary international

law.”); The Foreign Sovereign Immunities Act:

Hearing on S. 825 Before the Subcomm. on Courts

and Admin. Practice of the S. Comm. on the

Judiciary, 103d Cong. 7 (1994) (statement of Rep.

Mazzoli) (“[E]xtrajudicial killing is defined in

accordance with the TVPA and the Geneva

Conventions of 1949.”); see also Kadić v. Karadžić, 70

F.3d 232, 243-44 (2d Cir. 1995) (“[T]orture and

summary

execution . . . are

proscribed

by

international law only when committed by state

officials or under color of law.”).

And CrossRespondents’ argument (Owens Cross-Pet. Opp’n 1314) that the meaning of § 3 of the TVPA should not be

informed by international law cannot be squared with

this Court’s recent statement: “The TVPA — which is

codified as a note following the ATS — creates an

express cause of action for victims of torture and

extrajudicial killing in violation of international law.”

Jesner v. Arab Bank, PLC, 200 L. Ed. 2d 612, 626

(2018) (emphasis added).

2. The D.C. Circuit found that indirect victims of

terrorism, i.e., family members, are proper

“claimants” in their own right for emotional injury

claims under § 1605A(a), even though the legislative

6

history makes clear that “claimant” specifically refers

to the individual asserting the claims of an

incapacitated victim or decedent. See Cross-Pet. 2224. And while the D.C. Circuit did not consider the

legislative history at all in reaching its conclusion

(Pet. App. 101a), the portions of the legislative

history referenced in Cross-Respondents’ Opposition

clearly support Sudan’s position. See Owens CrossPet. Opp’n 17 (referring to the “victim’s legal

representative or another person who is a proper

claimant” and “either the victim of the act or survivor

who brings the claim” (emphasis added) (quoting

legislative history)).

3. The D.C. Circuit concluded that foreignnational family members asserting emotional injury

claims and who have no connection to the United

States and no claim under § 1605A(c) can nonetheless

establish jurisdiction under § 1605A(a) in U.S. courts

and assert state-law (or foreign-law) claims against a

foreign state based on the alleged material support of

foreign terrorists in foreign countries.

This

conclusion is antithetical to this Court’s decisions.

See, e.g., Jesner, 200 L. Ed. 2d at 635 (stating that

serious questions existed as to whether the

petitioners’ allegations “touch and concern” the

United States where the petitioners were “foreign

nationals seeking hundreds of millions of dollars in

damages against a major Jordanian financial

institution in attacks by foreign terrorists in the

Middle East”). The D.C. Circuit’s interpretation of

§ 1606 as merely a liability limiting provision is also

inconsistent with § 1606’s text. Pet. App. 108a.

Section 1606 provides the manner in which “the

7

foreign state shall be liable.” See Cross-Pet. 26-28

(emphasis added) (quoting § 1606). Congress’s failure

to amend § 1606 to include § 1605A must be deemed

purposeful, because U.S. courts have no free-wheeling

license to create the manner in which foreign states

are liable. See Cross-Pet. 27; see also, e.g., Jesner,

200 L. Ed. 2d at 631 (stating that “separation-ofpowers concerns that counsel against courts creating

private rights of action apply with particular force in

the context of the ATS” and stating that the “political

branches, not the Judiciary, have the responsibility

and institutional capacity to weigh foreign-policy

concerns”).

4. According to the D.C. Circuit, the ten-year

statute of limitations provision in § 1605A(b) —

contained in a jurisdictional exception to immunity —

is not really jurisdictional and the district court

therefore is at liberty to entertain patently stale

claims against a foreign state. Contrary to CrossRespondents’ suggestion (Owens Cross-Pet. Opp’n

22), United States v. Wong does not require “magic

words” in order for a statute of limitations to be

jurisdictional.

135 S. Ct. 1625, 1632 (2015).

Section 1605A(b) by its terms applies to actions, not

just claims — “no action may be brought” — and,

thus, meets the standard set by this Court in Wong.

Cross-Pet. 31. Moreover, Cross-Respondents have no

excuse for their failure to bring a timely direct action

under § 1605A in 2008 when they had the ability,

rather than in 2010 and 2012, years after the

limitations period expired. Yet Sudan is the litigant

that was found inexcusably neglectful.

8

Lastly, despite Cross-Respondents’ continued

mischaracterization of the procedural history of the

actions below (Owens Cross-Pet. Opp’n 26; Opati

Cross-Pet. Opp’n 2-3), Cross-Respondents submitted

no evidence to refute the sworn declaration of

Sudan’s Ambassador. The Ambassador’s unrefuted

declaration explained Sudan’s failure to appear in the

actions below — the bulk of which were filed in 2008,

after the new terrorism exception was enacted and on

the eve of the expiration of the limitations period, and

in 2010 and 2012, after the limitations period had

expired. At each turn, the district court and the D.C.

Circuit adopted Cross-Respondents’ disingenuous

conflation of all the actions with the earlier,

separately filed Owens case. See, e.g., Pet. App.

132a, 137a, 166a, 169a, 172a.

But even in the Owens case, the record was clear

that Sudan’s exit was entirely consistent with

Ambassador

Khalid’s

unrefuted

declaration

describing the civil war and strife besieging Sudan at

the time. Cross-Pet. 6-9, 38-39. Cross-Respondents’

Opposition goes so far as to falsely state (Owens

Cross-Pet. Opp’n 4) that in 2004 Sudan “moved to

vacate the default judgments” and was therefore

rightly denied a second vacatur in the actions below.

Again, as of 2004, only Owens had been filed, and

Sudan appeared in that case to vacate an entry of

default — not “default judgments” as CrossRespondents misleadingly suggest.

Cross-Respondents also blithely state (Owens

Cross-Pet. Opp’n 27) that the district court had

“consolidated” all cases for liability purposes and that

9

Sudan even ignored the cases when the 2011 liability

opinion was served. But major actions (Aliganga and

Opati), resulting in over $1.6 billion in damages

(exclusive of punitive damages), were not even filed

in 2010 or 2011 when the liability hearing took place

and the opinion issued. Sudan appeared within less

than thirty days of the entry of the final default

judgment in each case and timely appealed from

those judgments, and later moved to vacate. CrossRespondents’ purported prejudice in the event of

vacatur, and statements about having “waited years

for justice,” ring hollow. Owens Cross-Pet. Opp’n 26.

Plaintiffs — without any adversary on the other side

— were the masters of their own timing. As for the

untimely 2012 actions, those actions were clearly

opportunistic, making assertions of prejudice for

those actions even less credible.

Those actions

merely piggybacked on the 2011 liability decision,

without the submission of any evidence of jurisdiction

or liability specific to those actions. Pet. App. 270a;

Cross-Pet. App. 91a-92a.

Moreover, none of the plaintiffs in any of the

consolidated actions submitted any admissible or

sufficient evidence to support jurisdiction over Sudan

in these cases, as set forth in detail in Sudan’s

Petition in Owens. And, as undersigned counsel

represented to the D.C. Circuit, Sudan was willing to

consider steps to mitigate any perceived prejudice,

including waiving the requirement that any victims

would have to testify again should plaintiffs succeed

on the merits.

10

Cross-Respondents’ assertions of prejudice, and

the D.C. Circuit’s acceptance of those assertions, were

therefore conclusory at best, and the denial of

Sudan’s request to defend on the merits stands as an

affront to principles of international comity and an

impediment to U.S. foreign relations.

Although the United States declined to express its

views in the district court on Sudan’s vacatur motion

“at this time” — the key phrase conspicuously

omitted from the Opati Opposition (at 4) — nothing

precluded the D.C. Circuit from inviting the views of

the United States at the appeal level, particularly if

the D.C. Circuit intended to penalize Sudan (as it did)

for the failure of the United States to appear sua

sponte. Indeed, it is not unusual for the United

States to appear to express a view upon invitation by

this Court or the court of appeals without having

appeared in the district court. See, e.g., Brief for the

United States as Amicus Curiae at 1, Bolivarian

Republic of Venezuela v. Helmerich & Payne Int’l

Drilling Co., 137 S. Ct. 1312 (May 24, 2016) (No. 15-

423); Order Inviting the United States to Submit an

Amicus Curiae Brief, Bennett v. Islamic Republic of

Iran, 817 F.3d 1131 (9th Cir. 2016) (No. 13-15442).

The D.C. Circuit could not have known how the

United States might have responded had the D.C.

Circuit invited the United States to express its views

in 2017, when diplomatic relations between Sudan

and the United States were warming, culminating in

the revocation of sanctions.

The D.C. Circuit also penalized Sudan because

Sudan is a designated state sponsor of terrorism. See

11

Cross-Pet. 37 (citing Pet. App. 134a). But while this

designation is a necessary condition for maintaining

a § 1605A action, it should not have served as a basis

for denying Sudan the opportunity to defend the

serious allegations against it on the merits.

CONCLUSION

For the foregoing reasons, if this Court grants the

Opati Petition, it should grant the Conditional Cross-

Petition and invite the views of the United States.

Respectfully submitted,

CHRISTOPHER M. CURRAN

Counsel of Record

NICOLE ERB

CLAIRE A. DELELLE

CELIA A. MCLAUGHLIN

NICOLLE KOWNACKI

WHITE & CASE LLP

701 Thirteenth Street, NW

Washington, DC 20005

(202) 626-3600

ccurran@whitecase.com

Counsel for CrossPetitioners the Republic of

the Sudan, the Ministry of

External Affairs of the

Republic of the Sudan, and

the Ministry of the

Interior of the Republic of

the Sudan

May 22, 2018