Petition for Writ of Certiorari — Chava Rachel Mark, Individually and as Parent and Natural Guardian of T. B. M., R. L. M., and E. B. M., Minors, et al., Petitioners v. Republic of Sudan, et al.

Supreme Court briefDec 26, 2023

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No. 23In the

Supreme Court of the United States

CHAVA RACHEL MARK, et al.,

Petitioners,

REPUBLIC OF THE SUDAN,

UNITED STATES OF AMERICA,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the

District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

A sher Perlin

Counsel of Record

4600 Sheridan Street, Suite 303

Hollywood, Florida 33012

(786) 687-0404

asher@asherperlin.com

Counsel for Petitioners

326209

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

The petitioners, victims of a Sudan-sponsored

Hamas terrorist attack, sued Sudan under the terrorism

exception to the Foreign Sovereign Immunities Act. 28

U.S.C. § 1605A. Subsequently, the government entered

into a comprehensive settlement with Sudan and removed

Sudan from the list of designated state sponsors of

terrorism. The settlement provided compensation for all of

Sudan’s terrorism victims except the petitioners and other

victims of Sudan-sponsored Hamas terrorist attacks.

The settlement included legislation that removed subject

matter jurisdiction for all terrorism claims against Sudan

except those arising out of the September 11, 2001 attacks.

Sudan Claims Resolution Act (“SCRA”), Consolidated

Appropriations Act, 2021, Pub. L. No. 116-260 (2020)

(codified at 28 U.S.C. § 1605A (note)).

The petitioners challenged the constitutionality of the

settlement. The D.C. Circuit analyzed the constitutionality

of the jurisdiction-stripping provision without considering

its interdependence with the other terms of the settlement.

Finding that provision to be valid, the court held

that it lacked jurisdiction to consider the Petitioners’

constitutional challenges to other parts of the settlement

and to the settlement as a whole.

The questions presented are:

Whether, as the D.C. Circuit held, the SCRA

st r ipped t he cou r t s of ju r isd ict ion over

constitutional challenges to the rest of the

settlement or the settlement as a whole, and if so,

whether the denial of any judicial forum for these

constitutional claims is, itself, unconstitutional.

Whether the D.C. Circuit improperly reviewed

the constitutionality of the SCRA in isolation,

ignoring its interdependence with the rest of the

settlement.

iii

LIST OF PARTIES

The petitioners were plaintiffs in the district court.

They were the appellants in the court of appeals.

Respondent, Republic of the Sudan, was the defendant

in the district court and an appellee in the court of appeals.

Respondent, the United States, was an intervenor in

the district court and an appellee in the court of appeals.

LIST OF PROCEEDINGS

This case arises from the following proceedings:

Mark v. Republic of Sudan, No. 21-5250 (D.C. Cir.)

(opinion issued and judgment entered July 21, 2023;

rehearing and rehearing en banc denied September 25,

2023).

Mark v. Republic of Sudan, No. 1:20-cv-03022

(D.D.C.) (opinion issued and judgment entered October 7,

2021; modified judgment entered October 4, 2023).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

LIST OF PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CTED AUTHORITIES . . . . . . . . . . . . . . viii

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . 1

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . . . 1

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 5

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 5

B. Procedural Background . . . . . . . . . . . . . . . . . . . . 9

REASONS FOR GRANTING THE PETITION . . . . 14

Table of Contents

Page

The District of Columbia Circuit’s Decision

Construing SCRA § 1704(a)(1) As Precluding

Constitutional Claims Warrants Review . . . . . . 14

A. The D.C. Circuit’s Construction Of

SCRA § 1704 Conflicts With Decisions Of

This Court And Of The Federal Courts

Appeal That Apply A Presumption That

Jurisdiction-Stripping Statutes Do

Not Bar Constitutional Claims . . . . . . . . . . 14

B. The D.C. Circuit’s Holding That

Ju r i sd ict ion- St r ippi ng St atut es

May Preclude Judicial Review Of

Con st it ut ion a l Cl a i m s V iol at e s

Constutitional Separation Of Powers And

The Due Process Clause And Conflicts

With Numerous Rulings Of This Court

And The Federal Courts Of Appeal . . . . . 16

II. The D.C. Ci rcuit’s A nalysis Of The

Constitutionality Of A Single Provision

Within the Comprehensive Settlement

Is Fundamentally Flawed And Requires

Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

vii

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLU M BI A

CIRCUIT, FILED JULY 21, 2023 . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

OF THE UNITED STATES DISTRICT

C OU RT F OR T H E DI S T R IC T OF

COLUMBIA, FILED OCTOBER 7, 2021 . . . . . . . 13a

APPENDIX C — DENIAL OF REHEARING

EN BA NC OF THE UNITED STATES

COU RT OF A PPEA LS FOR T H E

DISTRICT OF COLU M BI A CIRCUIT,

FILED SEPTEMBER 25, 2023 . . . . . . . . . . . . . . . 26a

A PPEN DI X D — DENI A L OF PA N EL

REHEARING OF THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT

O F C O LU M BI A C I R C U I T, F I L E D

SEPTEMBER 25, 2023 . . . . . . . . . . . . . . . . . . . . . . 28a

APPENDIX E — PROVISIONS INVOLVED . . . . . 30a

Claims Settlement Agreement, U.S.Sudan, Oct. 30, 2020, T.I.A.S. No. 21-209 . . . . 30a

Sudan Claims Resolution Act, Pub. L.

No. 116-260, 134 Stat. 1182 (2020) . . . . . . . . . . 58a

viii

TABLE OF CITED AUTHORITIES

Page

Cases:

Antolok v. United States,

873 F.2d 369 (D.C. Cir. 1989) . . . . . . . . . . . . . . . . . . . 18

Ass’n of Am. R.Rs. v. U.S. Dep’t of Transp.,

721 F.3d 666 (D.C. Cir. 2013) ,

vacated on other grounds,

___ U.S. ___, 135 S.Ct. 1225,

191 L.Ed.2d 153 (2015) . . . . . . . . . . . . . . . . . . . 4, 19, 20

Bartlett v. Bowen,

816 F.2d 695, 703 (D.C. Cir.), opinion

reinstated on reconsideration sub nom.

Bartlett on Behalf of Neuman v. Bowen,

824 F.2d 1240 (D.C. Cir. 1987) . . . . . . . . . 3, 14, 15, 16

Bowen v. Mich. Acad. of Fam. Physicians,

476 U.S. 667 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 15

Califano v. Sanders,

430 U.S. 99 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Citizens for Const. Integrity v. United States,

57 F.4th 750 (10th Cir. 2023) . . . . . . . . . . . . . . . . . . . 15

Ctr. for Biological Diversity v. Bernhardt,

946 F.3d 553 (9th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 15

Cited Authorities

Page

Free Enter. Fund v.

Pub. Co. Accounting Oversight Bd.,

561 U.S. 477 (2010) . . . . . . . . . . . . . . . . . . . . . . 4, 19, 20

Johnson v. Robison,

415 U.S. 361 (1974) . . . . . . . . . . . . . . . . . . . . 2, 14, 15, 16

Mark v. Republic of Sudan,

No. 1:20-CV-03022 (TNM), 2021 WL 4709718

(D.D.C. Oct. 7, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Mark v. Republic of the Sudan,

77 F.4th 892 (D.C. Cir. 2023) . . . . . . . . . . . . . . . . . . . . 1

Morrison v. Olson,

487 U.S. 654 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Patchak v. Zinke,

138 S. Ct. 897, (2018) . . . . . . . . . . . . . . . . . . . . . . . 13, 17

Santosky v. Kramer,

455 U.S. 745 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

South Carolina v. Regan,

465 U.S. 367 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Webster v. Doe,

486 U.S. 592 (1988) . . . . . . . . . . . . . . 2, 3, 14, 15, 16, 17

Cited Authorities

Page

Statutes and Other Authorities:

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

U.S. Const. art. I, § 8, cl. 9 . . . . . . . . . . . . . . . . . . . . . . . 17

U.S. Const. art. III, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 17

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1605A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

28 U.S.C. § 1608(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Pub. L. No. 116-260 (2020) . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. Civ. P. 5.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

OPINIONS BELOW

The opinion of the court of appeals for the District

of Columbia Circuit (App. 1a-12a) is reported at Mark v.

Republic of the Sudan, 77 F.4th 892 (D.C. Cir. 2023). The

memorandum opinion of the District Court for the District

of Columbia (App. 13a-25a) is reported at Mark v. Republic

of Sudan, No. 1:20-CV-03022 (TNM), 2021 WL 4709718

(D.D.C. Oct. 7, 2021).

STATEMENT OF JURISDICTION

The court of appeals issued its opinion and judgment

on July 21, 2023. (App. 1a-12a). The petitioners timely

petitioned for rehearing or for rehearing en banc. The

court of appeals issued its orders denying the petitions

for rehearing on September 25, 2023. (App. 26a-29a). The

jurisdiction of this Court rests on 28 U.S.C. § 1254(1).

PROVISIONS INVOLVED

This petition challenges government legislation and

conduct pursuant to the Due Process Clause and the Equal

Protection Clause of the Fifth Amendment of the United

States Constitution, which provides in pertinent part: “No

person shall ... be deprived of life, liberty, or property,

without due process of law....” U.S. Const. amend. V.

The Appendix hereto includes the U.S.-Sudan Claims

Settlement Agreement, Oct. 30, 2020, T.I.A.S. No. 21-209

(App. 30a-57a) and the Sudan Claims Resolution Act, Pub.

L. No. 116-260, 134 Stat. 1182 (2020) (App. 58a-76a).

PRELIMINARY STATEMENT

This case presents recurring issues of exceptional

importance to our constitutional system. This Court has

never found that any act of Congress precludes review

of claims that constitutional rights have been violated

by government action. But the court below has done just

that. App. 5a-6a. The D.C. Circuit expansively construed

the jurisdiction-stripping provision of section 1704(a)(1) of

the Sudan Claims Resolution Act (“SCRA”), Consolidated

Appropriations Act, 2021, Pub. L. No. 116-260 (2020)

(codified at 28 U.S.C. § 1605A (note)) (App. 61a-62a) to

preclude judicial review of petitioners’ constitutional

challenges to the U.S.- Sudan Claims Settlement

Agreement, Oct. 30, 2020, T.I.A.S. No. 21-209 (entered into

force Feb. 9, 2021) (the “CSA”) (App. 30a) and to the CSA

and the SCRA as a unit. Applying section 1704(a)(1), as

construed, the court of appeals dismissed the case without

considering petitioners’ other constitutional arguments.

The broad construction of section 1704(a)(1) directly

violates this Court’s oft-repeated holding that, absent

clear and convincing evidence of a contrary congressional

intent, courts must construe jurisdiction-stripping statutes

as allowing constitutional claims to proceed. See e.g.,

Johnson v. Robison, 415 U.S. 361, 366-67, 373-74 (1974);

Webster v. Doe, 486 U.S. 592, 603 (1988); Bowen v.

Mich. Acad. of Fam. Physicians, 476 U.S. 667, 681 n.12

(1986). This rule is based upon the need to avoid the

“serious constitutional questions” that would arise if a

federal statute denied any judicial forum for a colorable

constitutional claim. Robinson, 415 U.S. at 366-67;

Webster, 486 U.S. at 603; Bowen, 476 U.S. at 681 n.12

(citing cases).

As the rule anticipates, the D.C. Circuit’s construction

of section 1704(a)(1) renders the statute unconstitutional.

Specifically, the statute, as construed by the D.C. Circuit,

violates the Due Process Clause of the Fifth Amendment

because it deprives individuals of an independent forum

in which to obtain adjudication of their constitutional

rights. See Bartlett v. Bowen, 816 F.2d 695, 703 (D.C.

Cir.), opinion reinstated on reconsideration sub

nom. Bartlett on Behalf of Neuman v. Bowen, 824 F.2d

1240 (D.C. Cir. 1987). It also violates the constitutional

mandate of separation of powers because it subverts the

courts’ role as the final arbiters of the Constitution. See id.

In a dissenting opinion in Webster, Justice Scalia held

that the Constitution bestows upon Congress unlimited

power to define or remove the jurisdiction of the inferior

federal courts, and that the Court’s construction of

jurisdiction-stripping statutes should not be constrained

to allow constitutional claims to proceed: “[T]here is no

shadow of a constitutional doubt that we are free to hold

that the present suit, whether based on constitutional

grounds or not, will not lie.” 486 U.S. at 611-12 (Scalia,

J., dissenting).

The D.C. Circuit’s understanding of the due process

and separation of powers questions and its construction

and application of the jurisdiction-stripping statute align

with Justice Scalia’s dissent in Webster. But that is a

view that has been consistently rejected by this Court.

The Court should not allow the decision below to stand

as a precedent enabling Congress to immunize any

unconstitutional government action by coupling it with a

jurisdiction-stripping provision precluding judicial review.

The decision below is constitutionally flawed for an

additional reason. By reviewing the constitutionality of

section 1704(a)(1) in isolation from the other provisions of

the settlement scheme, the D.C. Circuit blinded itself to

the most egregious of the settlement’s equal protection

violations and thereby skewed the constitutional analysis.

The SCRA was enacted pursuant to, and in conjunction

with, the CSA and other components of the overall

settlement, all of which combined into what can only be

viewed as a single government action or course of conduct.

And even if section 1704(a)(1) were a facially valid

jurisdiction-stripping provision, when combined with the

CSA and the other provisions of the settlement, it violates

the petitioners’ equal protection rights. Two provisions of

a single scheme may be unconstitutional in combination,

even if each is individually valid. See e.g., Free Enter. Fund

v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010);

Ass’n of Am. R.Rs. v. U.S. Dep’t of Transp., 721 F.3d 666,

673 (D.C. Cir. 2013), vacated on other grounds, ___ U.S.

___, 135 S.Ct. 1225, 191 L.Ed.2d 153 (2015).

The settlement, as a whole completely nullifies only

the petitioners’ claims and those of the limited class

of victims of Sudan-sponsored Hamas terrorism (the

“Hamas Victims”) while compensating all other known

victims of Sudan-sponsored terrorism. The D.C. Circuit

not only ignored the effect of the combination of the various

pieces of the settlement, it even criticized the district

court for “improperly analyz[ing] the constitutionality of

the Agreement.” App. 8a, n.3. Even if the D.C. Circuit’s

construction of the jurisdiction-stripping provision were

not independently unconstitutional, the court below was

required to consider whether, the combination with, and

dependence upon the other settlement provisions rendered

the SCRA unconstitutional. Cf., Morrison v. Olson, 487

U.S. 654, 693 (1988) (holding where one statutory provision

withstands constitutional scrutiny, courts must also

consider whether an act, taken as a whole is constitutional).

STATEMENT OF THE CASE

A. Factual Background.

1. On Friday, July 1, 2016, Michael Mark was

driving with his wife, Chava, and two of their children

on a quiet country highway in Israel when two Hamas

terrorists overtook their car and opened fire with a

Kalashnikov assault rifle. App 2a, 14a. The terrorists

fired approximately 25 bullets into the Marks’ car, killing

Michael and injuring Chava and the children. App 2a, 14a.

The petitioners are Chava Mark, her children, and

other immediate family members (collectively, the “Marks”

or the “petitioners”). They are all United States nationals

who sued respondent, Republic of the Sudan (“Sudan”)

under the terrorism exception to the Foreign Sovereign

Immunities Act (the “FSIA”), 28 U.S.C. § 1605A. The

Marks sought to hold Sudan liable for wrongful death and

personal injuries that resulted from the terrorist attack

carried out by Hamas with material aid and support from

Sudan. App. 14a.

2. After the petitioners filed their complaint, but

before Sudan filed a response, respondent, the United

States entered into a comprehensive settlement agreement

with Sudan that consisted of several components. At least

in form, the primary component of the settlement was

the CSA, “including its annexes, appendices, side letters,

related agreements, and instruments for implementation.”

App. 15a, 59a. Among other things, under the CSA the

United States agreed to espouse and settle all terrorism

claims of U.S. nationals against Sudan. App. 3a. The

government also agreed to rescinded Sudan’s designation

as a state sponsor of terrorism. App. 15a, 33a, 62a. Sudan

agreed to pay $335 million for the benefit of almost all of

its terrorism victims whose claims were espoused – even

those who were not U.S. nationals. App. 37a.

Among the “related agreements” included in the

CSA were a number of so-called “private settlement

agreements” entered into between Sudan and certain

v ictims of Sudan-sponsored ter ror ism who were

designated by the United States to be included in financial

distributions to be made pursuant to the CSA. App. 33a,

42a, 62a1.

Finally, the CSA required Congress to enact legislation

necessary to carry out certain obligations of the United

States under the CSA. App. 34a-37a. Primarily, the CSA

required the United States to enact jurisdiction-stripping

legislation barring terrorism lawsuits against Sudan. App.

34a-37a. In accordance with this obligation, SCRA section

1704(a)(1) precludes terrorism victims from maintaining

their claims against Sudan. App. 58a, 61a-62a. This

1. See also, Appellants’ Reply Brief at 1, 3-8, and Office of

Press Relations, USAID, Statement by Administrator Samantha

Power, Compensation Delivered to Family of USAID Employee

Killed in Line of Duty in Sudan (June 11, 2021), cited in Sudan’s

D.C. Circuit brief at 25 (“The Government of Sudan agreed to

compensate specific victims of terrorist attacks as part of the

negotiations for restoration of Sudan’s sovereign immunities.”).

jurisdiction-stripping provision was expressly contingent

upon Sudan’s payment of compensation pursuant to the

CSA. App. 61a-63a.

The SCRA carves out one significant exception to

the removal of jurisdiction. SCRA sections 1704 and 1706

preserve jurisdiction to hear the claims of the victims

and family members of the September 11, 2001 terrorist

attacks. App. 62a, 67a-68a. The September 11 claimant

carve-out is based upon the following Congressional

finding:

It is the long-standing policy of the United

States that civil lawsuits against those who

support, aid and abet, and provide material

support for international terrorism serve the

national security interest of the United States

by deterring the sponsorship of terrorism and

by advancing interests of justice, transparency,

and accountability.

SCRA § 1706(a)(1), App. 67a (emphasis added).

3. Under the settlement regime, almost all of Sudan’s

terrorism victims are compensated. The CSA provides for

compensation for various identified claimants from several

different Sudan-sponsored terrorist attacks, including the

1998 bombings of the U.S. embassies in Nairobi, Kenya

and Dar es Salaam, Tanzania (the “Embassy Bombings”)

and the 2000 attack on the U.S.S. Cole (the “Cole

Attack”). App. 37a, 42a-44a. The CSA also provides for

compensation for the survivors of an employee of United

States Agency for International Development (USAID)

who was assassinated in Sudan in 2008. App. 42a.

The SCRA provides for “lump sum” payments to

the 9/11 victims and families. App. 64a-65a. It also

appropriates an additional $150 million (over and

above the $335 million paid by Sudan) for increased

payments to Embassy Bombings victims and their family

members who, subsequent to the Embassy Bombings,

became naturalized American citizens. App. 70a. This

appropriation is claimed to be intended to achieve parity

between the naturalized American citizen claimants

and the claimants who were, at the time of the Embassy

Bombings, U.S. nationals. App. 71a.

The only Sudan terrorism victims who receive no

compensation are the petitioners and other claimants like

the Plaintiffs whose claims arise out of Sudan-sponsored

terrorist attacks carried out by the Hamas terrorist

organization (the “Hamas Victims”)2 . Thus, while the

petitioners’ claims and those of other Hamas Victims were

espoused and subjected to jurisdiction-stripping together

with the claims of all other non-9/11 victims, only the

Hamas Victims were excluded from any of the benefits

of the settlement.

2. In addition to the instant case, Plaintiffs are aware of the

following civil actions against the Sudan: Steinberg v. Republic of

the Sudan, civ. case no. 20-cv-2296; Weinstock v. Republic of the

Sudan, civ. case no. 20-cv-3021; Force v. Republic of the Sudan,

civ. case no. 20-cv-3027; and Hirshfeld v. Republic of the Sudan,

civ. case no. 20-cv-3029.

B. Procedural Background.

1. In the district court, the Marks properly served

Sudan with process pursuant to 28 U.S.C. § 1608(a)(3).

ECF No. 12. Sudan filed a motion to dismiss. ECF No.

16. Sudan did not deny any of the factual allegations of

the complaint. Rather, the motion to dismiss was based

exclusively upon the CSA and the SCRA. Sudan argued

that under the CSA and SCRA the district court lacked

subject matter jurisdiction and personal jurisdiction and

that the Marks no longer had a private right of action.

App. 16a.

The Marks responded to Sudan’s Motion to Dismiss.

They acknowledged that the President has broad

authority to espouse and settle claims of U.S. nationals,

and that Congress may enact laws altering the rules of

foreign sovereign immunity or jurisdiction. However, the

Marks argued that these powers cannot be exercised in

violation of individual claimants’ constitutional rights.

Memorandum of Points and Authorities in Opposition to

Motion to Dismiss, ECF No. 20 at 1-2.

The Marks opposed Sudan’s motion to dismiss based

upon arguments that the CSA and the SCRA, individually

and together, impinged upon their equal protection rights

under the Fifth Amendment and their right of access

to the courts. App. 18a; Memorandum of Points and

Authorities in Opposition to Motion to Dismiss, ECF No.

20 at 2, 10, 12-13. Specifically, the Appellants argued that,

through backroom deals, the CSA and SCRA, together,

operated to impose upon the Hamas Victims the burdens

of the settlement while distributing the settlement benefits

among all other classes of claimants, to the exclusion of the

Hamas Victims. See e.g., id. at 12-13. Then, after providing

financial benefits for all other Sudan terrorism victims, the

CSA and SCRA withdrew jurisdiction to hear any such

claims – except those of the 9/11 victims. App. 62a, 67a.

But because all other claimants were being compensated,

the only claimants for whom the withdrawal of jurisdiction

made a difference were the Hamas Victims, who were

not compensated under the settlement and who could no

longer pursue their claims in court.

The Marks filed and served upon the Attorney General

of the United States a Notice of Constitutional Challenge

under Fed. R. Civ. P. 5.1(a). App. 16a. The United States

intervened as of right to defend the constitutionality of the

CSA and that of SCRA and to seek dismissal. App. 16a.

Sudan and the government argued that the CSA

and SCRA should be upheld because they reasonably

compensated only claimants who, unlike the Marks, had

previously established Sudan’s liability through default

judgments or so-called “private settlement agreements.”

App 19a-20a. The district court adopted this argument

and held that the disparate treatment of the Plaintiffs

under the settlement survived rational basis review. App

19a-20a. (“That the agreements limited Sudan’s liability

to claims where it was already on the hook was rational.”).

The district court rejected the Marks’ constitutional

challenge to the CSA, the SCRA, and the two together,

and dismissed the complaint with prejudice. App. 19a,

24a, 25a.

2. The Marks filed a timely notice of appeal. In the

court of appeals, the Marks raised the same constitutional

arguments that they presented to the district court,

with one significant refinement: While preparing the

Reply Brief, counsel for the Marks checked a seemingly

innocuous citation in Sudan’s brief, and discovered that

contrary to Sudan’s and the government’s assertions, the

so-called “private settlement agreements” were achieved

as the result of negotiations between Sudan and the

United States as part of the comprehensive settlement.

Reply Br. at 6-7. This discovery was significant because it

proved that Sudan and the United States had both falsely

asserted in their appellate briefs (and in the district court)

that the “private settlement agreements” were reached

prior to, and independent of, the CSA 3. See Reply Br. 5.

Sudan also falsely represented that the so-called “private

settlement agreements” were “beyond constitutional

scrutiny because they do not involve state action by any

U.S. government entity.” See id. at 4.

In fact, the “private settlement agreements” were an

integral part of the comprehensive settlement between

the United States and Sudan. And contrary to Sudan’s

and the government’s arguments, the private settlement

agreements were not a justification for the disparate

treatment of the Hamas Victims; they were a primary

manifestation of the disparate treatment of the Hamas

Victims. The United States had pre-selected the claimants

with whom Sudan would be required to enter “private

settlement agreements.” Thus, belying Sudan’s arguments

to the contrary, the private settlement agreements were

produced by state action and were emphatically subject

to constitutional scrutiny.

3. Petitioners explained that the exceptional circumstances

surrounding the discovery of the respondents’ misrepresentations

justified the court’s consideration of these arguments despite being

raised for the first time in an appellate reply brief. Reply Br. at 12.

Moreover, the Marks argued that these material

misrepresentations required the court to “closely

scrutinize” the Appellees’ justifications for the Marks’

disparate treatment under the settlement. Reply Br. at

1, 9. At oral argument, petitioners again argued that the

misrepresentations required “heightened scrutiny.”

A fter the case was fully briefed, the court of

appeals, on its own motion, ordered the parties to “file

supplemental briefs addressing whether the plaintiffsappellants’ constitutional challenge to the Claims

Settlement Agreement and the Sudan Claims Resolution

Act raises a nonjusticiable political question.” Order dated

September 19, 2022. The court further ordered the parties

to be prepared to address the justiciability issue at oral

argument. Id. The parties complied with the order and

briefed the question of the political question doctrine’s

applicability.

The D.C. Circuit did not address the political question

doctrine at oral argument or in its decision. Neither did

it consider the questions of the respondents’ material

misrepresentations, the constitutionality of the CSA,

or the constitutionality of the CSA and SCRA together.

Instead, the court focused exclusively on the validity of

the jurisdiction-stripping statute.

The court of appeal acknowledged that the Marks

were challenging the constitutionality of the SCRA,

and nonetheless it found that “by its plain terms” the

SCRA’s jurisdiction-stripping provision “divests this

court of jurisdiction.” App. 5a. The court added that it

was required to “consider whether this jurisdictional

ouster is within constitutional bounds.” App. 5a. The court

then addressed the constitutional validity of jurisdiction-

stripping statutes, generally, and found that, as a matter

of separation of powers, Congress’s control over the

jurisdiction of the federal courts is plenary, provided

it does not violate other constitutional provisions when

exercising its power to constitute inferior tribunals. App.

5a-6a, citing Patchak v. Zinke, 138 S. Ct. 897, 909, (2018)

(plurality). Thus, the court held that Congress’s power

to define the limits of inferior courts’ jurisdiction is so

extensive as to allow Congress to divest jurisdiction to

consider constitutional claims. App. 5a-6a.

Once it was satisfied that section 1704(a)(1) stripped

jurisdiction for the Marks’ constitutional claim, and that

Congress had authority to enact such a statute, the court

turned its attention to the equal protection challenge to

the the jurisdiction-stripping provision, alone. App. 7a.

Here, the court isolated the SCRA’s jurisdiction stripping

provision from the other terms of the settlement and

found that it “rationally distinguished between terrorist

attacks in general and the September 11 attacks.”

App. 10a (emphasis added). Thus, the court rejected the

equal protection challenge to the jurisdiction-stripping

provision. And with that decision, the court held that it

and the district court lacked jurisdiction to consider the

petitioners’ constitutional challenges to the CSA. App.

5a-6a, 8a n.3. “Because we hold that we lack jurisdiction

over the Marks’ claims, we do not consider the Marks’

constitutional arguments as they pertain to the substance

of the Agreement.” App. 8a n.3.

The court noted that a dismissal for lack of subject

matter jurisdiction must be without prejudice. App.

12a. Accordingly, the court modified the district court’s

judgment to be a dismissal without prejudice. App. 12a.

The Marks filed a timely petition for rehearing

or rehearing en banc. They argued that the court’s

construction of SCRA section 1704(a)(1) violated this

Court’s rule of construction that presumes jurisdiction

stripping statutes do not preclude judicial review of

constitutional claims. Webster v. Doe, 486 U.S. 592, 603

(1988); Johnson v. Robison, 415 U.S. 361, 366-67 (1974).

They also argued that, as construed by the court, section

1704(a)(1) violates the constitutional mandate of separation

of powers and the Due Process Clause, pursuant to

Bartlett v. Bowen, 816 F.2d 695, 703 (D.C. Cir.). Finally,

the Marks argued that the court could not properly uphold

the SCRA’s jurisdiction-stripping provision without

considering its relationship with the other components of

the settlement. The D.C. Circuit denied the petition for

rehearing or for rehearing en banc. App. 26a, 28a.

REASONS FOR GRANTING THE PETITION

The District of Columbia Circuit’s Decision

Construing SCRA § 1704(a)(1) As Precluding

Constitutional Claims Warrants Review.

The D.C. Circuit’s Construction Of SCRA §

1704 Conflicts With Decisions Of This Court

And Of The Federal Courts Appeal That Apply

A Presumption That Jurisdiction-Stripping

Statutes Do Not Bar Constitutional Claims.

The court of appeals held that Congress’s power

to define the limits of inferior courts’ jurisdiction is so

extensive as to allow Congress to divest jurisdiction to

consider constitutional claims. Therefore, the court of

appeals purported to construe section 1704(a)(1) “by its

plaint terms” and found that it divested the courts of

jurisdiction. App. 5a. App. 5a-6a.

This holding conflicts with numerous decisions of

this Court and the lower courts of appeal that express

“grave doubts” as to the constitutionality of any statute

that denies a judicial forum for a colorable constitutional

claim. Webster v. Doe, 486 U.S. 592, 603 (1988); Johnson

v. Robison, 415 U.S. 361, 366-67 (1974); Bartlett v. Bowen,

816 F.2d 695, 703 (D.C. Cir.), opinion reinstated on

reconsideration sub nom. Bartlett on Behalf of Neuman

v. Bowen, 824 F.2d 1240 (D.C. Cir. 1987); Citizens for

Const. Integrity v. United States, 57 F.4th 750 (10th

Cir. 2023); Ctr. for Biological Diversity v. Bernhardt,

946 F.3d 553 (9th Cir. 2019). These decisions establish a

presumption that jurisdiction-stripping statutes do not bar

constitutional claims. Robinson, 415 U.S. at 366-67; South

Carolina v. Regan, 465 U.S. 367, 380 (1984); Califano v.

Sanders, 430 U.S. 99, 109 (1977). The presumption is so

compelling that it can only be overcome with clear and

convincing evidence that Congress intended to preclude

constitutional claims. Robison, 415 U.S. at 366-67, 37374; Webster, 486 U.S. at 603; Bowen, 476 U.S. at 681 n.12

(1986).

Section 1704(a)(1) divests courts of jurisdiction in

general terms. App. 5a. It does not specify that it precludes

courts from hearing constitutional claims. And there is no

other indication in the statute or otherwise that Congress

intended for it to have such an expansive construction.

Therefore, the presumption that jurisdiction-stripping

statutes do not bar constitutional claims applies, and

the statute must be construed to allow the petitioners’

to pursue their constitutional claims. The D.C. Circuit’s

decision eschews the numerous decisions of this Court

discussed above and construes section 1704(a)(1) broadly

to preclude the petitioners’ constitutional claims. It must

be reversed.

B. The D.C. Circuit’s Holding That JurisdictionStripping Statutes May Preclude Judicial

Review Of Constitutional Claims Violates

Constutitional Separation Of Powers And

The Due Process Clause And Conflicts With

Numerous Rulings Of This Court And The

Federal Courts Of Appeal.

The D.C. Ci rcuit rendered section 170 4(a)(1)

unconstitutional by improperly construing the SCRA

to deny any judicial review of the constitutionality of

the CSA. This holding directly conflicts with numerous

decisions of this Court that have expressed grave doubts

as to the constitutionality of federal statutes that deny

a judicial forum for a colorable constitutional claim. See

e.g., Webster, 486 U.S. at 603 Robison, 415 U.S. 361. In

Bartlett v. Bowen, the D.C. Circuit explained the basis

for these grave doubts:

a statutory provision precluding all judicial

review of constitutional issues removes from the

courts an essential judicial function under our

implied constitutional mandate of separation

of powers, and deprives an individual of an

independent forum for the adjudication of a

claim of constitutional right. 816 F.3d at 703.

The court below assessed the separation of powers

question differently. It observed that the Constitution

vests Congress with the authority ‘to constitute Tribunals

inferior to the supreme Court.’ App. 5a, citing, U.S.

CONST. art. I, § 8, cl. 9; see also id. art. III, § 1. The

court of appeals continued: “This broad power includes

the lesser power to limit the jurisdiction of those courts.”

Id., citing Patchak v. Zinke, 138 S. Ct. 897, 909 (2018)

(plurality). The court acknowledged that Congress’s

authority to limit federal court jurisdiction is limited by

the Constitution. Id. But, it did not consider separation of

powers to restrict this authority. Neither did it recognize

that the Due Process Clause invalidates statutes that

deprive individuals of a judicial forum for the adjudication

of their constitutional rights.

The court’s understanding of the separation of

powers question is aligned with Justice Scalia’s dissent

in Webster, where he held that the Constitution explicitly

vests Congress with the power to limit inferior federal

court’s jurisdiction, and that this power even allows

Congress to divest the courts of jurisdiction to adjudicate

constitutional claims. Webster, 486 U.S. at 611. However,

the alignment of the decision below with Justice Scalia’s

Webster dissent merely highlights its conflict with the

Webster majority and the other pronouncements by this

Court and those of the federal courts of appeal.

The D.C, Circuit below held that under section 1704(a)

(1), the Court could not even consider the Appellants’

constitutional challenge to the CSA. Addendum at 7 n. 3.

The court of appeals thus construed section 1704(a)(1) to

be precisely the kind of statute that, under this Court’s

precedents, as explained by Bartlett, violates separation

of powers and infringes due process. The decision below

must be reversed.

II. The D.C. Circuit’s Analysis Of The Constitutionality

Of A Single Provision Within the Comprehensive

Settlement Is Fundamentally Flawed And Requires

Review.

The D.C. Circuit analyzed the validity of section

1704(a)(1) without considering its relationship with, and

dependence upon, the other provisions of the settlement. In

doing so, the court failed to appreciate the interdependence

of the CSA and the SCRA, and that they were part of a

single government action, policy, and course of conduct.

Thus, the court of appeals analyzed the constitutionality

of section 1704(a)(1) without reference to its context or the

manner in which it was applied. This analysis was flawed

and must be reviewed.

The CSA expressly required the United States to

enact a provision like SCRA § 1704(a). App. 36a. Thus §

1704(a) was enacted pursuant to, and in performance of,

the CSA. Moreover, under SCRA § 1704(a)(1) and (2), the

restoration of Sudan’s foreign sovereign immunity and the

withdrawal of subject matter jurisdiction were expressly

conditioned upon a certification by the Secretary of State

confirming that Sudan made the required payments

under the CSA and the “private settlement agreements.”

Hence, the SCRA’s jurisdiction-stripping provisions were

expressly contingent upon and inseparable from the CSA,

in general and the payment provisions in particular. For

this reason alone, any constitutional infirmities in the CSA

must be attributed to the SCRA. Cf., Antolok v. United

States, 873 F.2d 369, 388-89 (D.C. Cir. 1989) (Wald, C.J.

concurring).

It must be noted that the district court reviewed

the settlement subject to a rational basis review. And,

after isolating the jurisdiction-stripping provision

from the other components of the settlement, the D.C.

Circuit also applied a rational basis review. However,

as petitioners argued below, a heightened standard of

review was required due to Sudan’s and the government’s

material misrepresentations regarding the government’s

substantial role in negotiating with Sudan for the socalled “private settlement agreements.” The purported

non-governmental nature of the “private settlement

agreements” was the principal rationale relied upon by

the district court in upholding the settlement against the

petitioners’ equal protection challenge. App. 20a (“That

the agreements limited Sudan’s liability to claims where

it was already on the hook was rational.”). Because the

jurisdiction-stripping provision of the SCRA was expressly

conditioned upon Sudan’s payment of those so-called

“private settlement agreements,” the constitutionality of

section 1704(a)(1) must rise or fall with the constitutionality

of those payments. This Court has held that an otherwise

valid provision may be unconstitutional when combined

with other provisions. See e.g., Free Enter. Fund v. Pub.

Co. Accounting Oversight Bd., 561 U.S. 477 (2010); Cf.,

Ass’n of Am. R.Rs. v. U.S. Dep’t of Transp., 721 F.3d 666,

673 (D.C. Cir. 2013), vacated on other grounds, ___ U.S.

___, 135 S.Ct. 1225, 191 L.Ed.2d 153 (2015).

The D.C. Circuit’s reasoning upholding section 1704(a)(1)

further demonstrates why that provision cannot be

properly constitutionally reviewed without reference to

the other components of the settlement. The D.C. Circuit

contrasted the treatment of the September 11 victims

with the treatment of all other terrorism victims. The

court held, “the Act’s jurisdiction-stripping provision

rationally distinguished between terrorist attacks

in general and the September 11 attacks,” App. 10a

(emphasis added). But this dichotomy ignores the plain

fact that before section 1704(a)(1) was enacted, the CSA

had already provided for compensation to all non-9/11

claimants except the Hamas Victims. App. 37a, 42a-44a.

By compensating all other non-9/11 victims, the CSA had

drained the pool of terrorism claimants “in general,” who

had any use for jurisdiction. Thus, as a practical matter,

section 1704(a)(1)’s jurisdictional ouster impaired only

the rights of the Hamas Victims, the same victims who

had just been excluded from CSA’s compensation regime,

the U.S. government-orchestrated “private settlement

agreements,” and the SCRA’s lump-sum and other

payments. Cf., Santosky v. Kramer, 455 U.S. 745, 775776 (1982) (Rehnquist J. dissenting) (“it is obvious that a

proper due process inquiry cannot be made by focusing

upon one narrow provision of the challenged statutory

scheme.”).

Under these circumstances, the court of appeals could

not properly analyze the constitutionality of section 1704(a)(1)

without assessing its dependence upon, and relationship

to, the other components of the settlement. See e.g., Free

Enter. Fund v. Pub. Co. Accounting Oversight Bd.,

561 U.S. 477 (2010); Ass’n of Am. R.Rs. v. U.S. Dep’t of

Transp., 721 F.3d 666, 673 (D.C. Cir. 2013), vacated on

other grounds, ––– U.S. ––––, 135 S.Ct. 1225, 191 L.Ed.2d

153 (2015).

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for certiorari Respectfully submitted.

Respectfully submitted,

A sher Perlin

Counsel of Record

4600 Sheridan Street, Suite 303

Hollywood, Florida 33012

(786) 687-0404

asher@asherperlin.com

Counsel for Petitioners

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N IO N O F T H E

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLU MBI A

CIRCUIT, FILED JULY 21, 2023 . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

OF THE UNITED STATES DISTRICT

C OU RT F OR T H E DI S T R IC T OF

COLUMBIA, FILED OCTOBER 7, 2021 . . . . . . . 13a

APPENDIX C — DENIAL OF REHEARING

EN BA NC OF THE UNITED STATES

COU RT OF A PPEA LS FOR T H E

DISTRICT OF COLU M BI A CIRCUIT,

FILED SEPTEMBER 25, 2023 . . . . . . . . . . . . . . . 26a

A PPEN DI X D — DEN I A L OF PA N EL

REHEARING OF THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT

O F C O LU M BI A C I R C U I T, F I L E D

SEPTEMBER 25, 2023 . . . . . . . . . . . . . . . . . . . . . . 28a

APPENDIX E — PROVISIONS INVOLVED . . . . . 30a

1. Claims Settlement Agreement, U.S.Sudan, Oct. 30, 2020, T.I.A.S. No. 21-209 . . . . 30a

2. Sudan Claims Resolution Act, Pub. L.

No. 116-260, 134 Stat. 1182 (2020) . . . . . . . . . . 58a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT,

FILED JULY 21, 2023

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

October 28, 2022, Argued;

July 21, 2023, Decided

No. 21-5250

CHAVA RACHEL MARK, INDIVIDUALLY

AND AS PARENT AND NATURAL GUARDIAN

OF TBM, RLM AND EBM, MINORS, et al.,

Appellants,

REPUBLIC OF THE SUDAN

AND UNITED STATES,

Appellees.

Appeal from the United States District Court

for the District of Columbia

(No. 1:20-cv-03022).

Before: Srinivasan, Chief Judge, and Wilkins and

RAO, Circuit Judges.

Appendix A

Opinion for the Court filed by Circuit Judge Rao.

Rao, Circuit Judge: Chava Mark and her family sued

Sudan, seeking compensation for a terrorist attack on

their family. The question on appeal is whether we have

jurisdiction. Under the Foreign Sovereign Immunities

Act, a state sponsor of terrorism may be sued for personal

injury arising from acts of terrorism. But in 2020,

Congress enacted the Sudan Claims Resolution Act,

which stripped the federal courts of jurisdiction to hear

most terrorism related claims against Sudan. The Marks

argue that the Act’s jurisdiction-stripping provision is

unconstitutional and therefore that their claims against

Sudan may be heard in federal court. The district court

dismissed for lack of jurisdiction. Finding no constitutional

infirmity in the Act’s jurisdiction-stripping provision, we

affirm.

Michael Mark was driving his wife, Chava Mark, and

their children down a country highway in Israel, when

two Hamas operatives began tailing them.1 Swerving into

the adjacent lane, the operatives fired roughly 25 bullets

from a Kalashnikov assault rifle, killing Michael Mark

and injuring his family.

Chava Mark and her children sued in federal district

court, contending Sudan provided Hamas with material

1. We accept these allegations as true for purposes of reviewing

the district court’s dismissal. See Bernhardt v. Islamic Republic of

Iran, 47 F.4th 856, 861 (D.C. Cir. 2022).

Appendix A

support for the terrorist act. The Marks brought a single

claim under the terrorism exception of the Foreign

Sovereign Immunities Act (“FSIA”), which creates a

private right of action against foreign states that provide

“material support or resources” for “personal injury

or death” caused by an “extrajudicial killing.” National

Defense Authorization Act for Fiscal Year 2008, Pub. L.

No. 110-181, 122 Stat. 3, 338-40 (codified as amended at

28 U.S.C. § 1605A(a)-(c)). The Marks sought $250 million

in compensatory damages. 2

After the Marks filed their complaint, the United

States entered into a claims settlement agreement with

Sudan. See Claims Settlement Agreement, U.S.-Sudan

(“CSA” or “Agreement”), Oct. 30, 2020, T.I.A.S. No. 21209 (entered into force Feb. 9, 2021). The Agreement was

part of an ongoing effort to improve diplomatic relations

between the United States and Sudan and to promote

the latter’s ongoing democratic transition. Id. pmbl. At

the time the United States and Sudan entered into the

Agreement, Sudan had compensated several victims of the

2000 terrorist attack on the U.S.S. Cole but multiple suits

against Sudan remained pending. Id. The United States

agreed to espouse and terminate all remaining claims

against Sudan in exchange for a $335 million settlement

payment. Id. art. III(2); see also Restatement (Second)

of the Foreign Relations L aw of the United States

§ 213 (1965) (explaining the espousal power allows the

President to “waive or settle a claim against a foreign

2. Sudan was a designated state sponsor of terrorism during all

times relevant to this appeal but was removed from the list in 2020.

Appendix A

state ... without the consent of [the injured] national”);

Asociacion de Reclamantes v. United Mexican States,

735 F.2d 1517, 1523, 237 U.S. App. D.C. 81 (D.C. Cir. 1984)

(“Under well-established principles of international law,

a sovereign possesses the absolute power to assert the

private claims of its nationals against another sovereign.”).

After receiving the $335 million, the United States

enacted the Sudan Claims Resolution Act (“SCRA”),

which effectively restored Sudan’s sovereign immunity

with respect to terrorism claims. Pub. L. No. 116-260,

134 Stat. 3291 (2020) (codified at 28 U.S.C. § 1605A (note))

(providing the FSIA’s terrorism exception no longer

applies to Sudan). The Act preserved only one class of

suits—the ongoing proceedings brought by “victims and

family members of the September 11, 2001, terrorist

attacks.” SCRA § 1706(a)(2)(A).

Following the Act’s passage, Sudan invoked its

immunity from suit and moved to dismiss the Marks’

case for lack of subject matter jurisdiction. Sudan also

maintained the Agreement terminated the Marks’ cause

of action. The Marks responded that the Act and the

Agreement violated the equal protection component of

the Fifth Amendment. The United States intervened in

support of Sudan.

The district court granted Sudan’s motion to dismiss.

Mark v. Republic of the Sudan, 2021 U.S. Dist. LEXIS

194234, 2021 WL 4709718, at *5 (D.D.C. Oct. 7, 2021). The

court held that the Act and Agreement were constitutional

and therefore that the court lacked jurisdiction to consider

Appendix A

the Marks’ claims. Id. 2021 U.S. Dist. LEXIS 194234, at

*3-5. The Marks timely appealed.

II.

The Marks acknowledge their claims fit within the

jurisdiction-stripping provision of the Sudan Claims

Resolution Act. They maintain, however, that this

provision violates the Constitution.

Although the Act by its plain terms divests this court

of jurisdiction, we nonetheless may consider whether this

jurisdictional ouster is “[w]ithin constitutional bounds.”

Bowles v. Russell, 551 U.S. 205, 212, 127 S. Ct. 2360, 168 L.

Ed. 2d 96 (2007); Patchak v. Zinke, 138 S. Ct. 897, 909, 200

L. Ed. 2d 92 (2018) (plurality) (considering a constitutional

challenge to a jurisdiction-stripping statute); Belbacha v.

Bush, 520 F.3d 452, 456, 380 U.S. App. D.C. 245 (D.C. Cir.

2008) (recognizing that federal courts have “presumptive

jurisdiction ... to inquire into the constitutionality of a

jurisdiction-stripping statute”).

The Constitution vests Congress with the authority

“[t]o constitute Tribunals inferior to the supreme Court.”

U.S. CONST. art. I, § 8, cl. 9; see also id. art. III, § 1.

This broad power “includes [the] lesser power to limit the

jurisdiction of those courts.” Patchak, 138 S. Ct. at 906

(plurality) (cleaned up). “[T]he subject-matter jurisdiction

of the lower federal courts is determined by Congress in

the exact degrees and character which to Congress may

Appendix A

seem proper for the public good.” Argentine Republic v.

Amerada Hess Shipping Corp., 488 U.S. 428, 433, 109 S.

Ct. 683, 102 L. Ed. 2d 818 (1989) (cleaned up). Congress’”

‘control over the jurisdiction of the federal courts’ is

‘plenary,’“ provided it “does not violate other constitutional

provisions” when exercising its power to constitute inferior

tribunals. Patchak, 138 S. Ct. at 906 (plurality) (quoting

Trainmen v. Toledo, P. & W.R. Co., 321 U.S. 50, 63-64, 64

S. Ct. 413, 88 L. Ed. 534 (1944)); see also Sheldon v. Sill, 49

U.S. (8 How.) 441, 449, 12 L. Ed. 1147 (1850) (“[A] statute

which does prescribe the limits of [the courts’] jurisdiction,

cannot be in conflict with the Constitution, unless it confers

powers not enumerated therein.”). Congress’ power to set

lower federal court jurisdiction serves as an important

constitutional check on the judiciary.

With respect to foreign sovereign immunity, Congress

has exercised its power to specify whether and to what

extent foreign sovereigns may be sued in federal court.

Diag Human v. Czech Rep. - Ministry of Health, 824

F.3d 131, 134, 422 U.S. App. D.C. 413 (D.C. Cir. 2016).

In civil suits, the FSIA mandates that “a foreign state

shall be immune from the jurisdiction of the courts of

the United States,” unless certain exceptions apply. 28

U.S.C. § 1604; see also id. §§ 1605, 1605A, 1605B, 1607

(enumerating exceptions); Argentine Republic, 488 U.S.

at 439 (explaining the FSIA is the exclusive avenue for

“obtaining jurisdiction over a foreign state in federal

court”). The FSIA’s terrorism exception provides federal

courts with jurisdiction over certain injuries caused by

state sponsors of terrorism. 28 U.S.C. § 1605A(a)-(c).

Appendix A

The Sudan Claims Resolution Act effectively restored

Sudan’s sovereign immunity for most terrorism related

claims. Under the Act, Sudan “shall not be subject to

[various] exceptions to immunity from jurisdiction,”

including the FSIA’s terrorism exception. SCRA § 1704(a)

(1)(A). The Act preserved only one class of suits—the

ongoing proceedings brought by “victims and family

members of the September 11, 2001, terrorist attacks.”

Id. § 1706(a)(2)(A); see also id. § 1706(c) (“Nothing in this

Act shall apply to ... any claim in any of the proceedings

comprising the multidistrict proceeding [related to the

September 11 attacks] brought by any person who, as of

the date of the enactment of this Act, has a claim pending

against Sudan.”).

The Marks concede their claims do not fit within

the carve-out for the victims of the September 11

attacks and are encompassed by the Act’s provision

stripping jurisdiction for terrorism claims against

Sudan. Nonetheless, the Marks maintain this provision is

unconstitutional because it violates the equal protection

guarantee of the Fifth Amendment. See Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 204, 115 S. Ct.

2097, 132 L. Ed. 2d 158 (1995) (discussing the “equal

protection component of the Fifth Amendment’s Due

Process Clause”). They argue the disparate treatment of

their claims from those of the September 11 victims is (1)

an arbitrary distinction that fails rational basis review,

and/or (2) an impairment of their fundamental right to

Appendix A

access the courts that cannot survive strict scrutiny. 3

Because the jurisdiction-stripping provision of the Act is

unconstitutional, the Marks contend, this court retains

jurisdiction over their suit against Sudan for its support

of the lethal terrorist attack on their family.

The Marks first argue the Act’s jurisdiction-stripping

provision runs afoul of equal protection because it bars

their claim while allowing the claims of “other similarly

situated victims of Sudan-sponsored terrorism.” In

particular, they maintain the Act arbitrarily carves out

claims brought by certain September 11 claimants.

3. The Marks challenge both the Agreement and the Act as

unconstitutional. The Agreement, however, espouses their claims and

therefore “simply effected a change in the substantive law governing

the lawsuit,” but did not affect our jurisdiction. Dames & Moore v.

Regan, 453 U.S. 654, 685, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (1981). The

Marks’ equal protection arguments do not distinguish between the

disparate treatment with respect to jurisdiction-stripping and the

disparate treatment with respect to the substantive claims espoused

by the United States. Because we hold that we lack jurisdiction over

the Marks’ claims, we do not consider the Marks’ constitutional

arguments as they pertain to the substance of the Agreement.

We also note the district court improperly analyzed the

constitutionality of the Agreement. Although the Marks raised the

same constitutional arguments against the Act and the Agreement,

the jurisdictional question should have been addressed first. Finding

no jurisdiction, the proper course was to dismiss the suit without

considering the Marks’ claims about the Agreement. See Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S. Ct. 1003,

140 L. Ed. 2d 210 (1998).

Appendix A

We apply rational basis review unless a statutory

classification “proceeds along suspect lines [or] infringes

fundamental constitutional rights.” Hettinga v. United

States, 677 F.3d 471, 478, 400 U.S. App. D.C. 218

(D.C. Cir. 2012) (per curiam) (quoting FCC v. Beach

Communications, 508 U.S. 307, 313, 113 S. Ct. 2096, 124

L. Ed. 2d 211 (1993)). The parties agree that the Marks’

first equal protection challenge is subject to rational basis

review. Judged under this standard, we must uphold the

Act’s statutory classifications “if there is any reasonably

conceivable state of facts that could provide a rational

basis for” them. Beach Commc’ns, Inc., 508 U.S. at

313. So long as it does not classify along suspect lines

or impair fundamental rights, Congress may provide

“special treatment” to one group if there is a rational

basis for doing so. Am. Bus Ass’n v. Rogoff, 649 F.3d 734,

741-42, 396 U.S. App. D.C. 353 (D.C. Cir. 2011); see also

Beach Commc’ns, Inc., 508 U.S. at 314 (explaining that

under rational basis review a statute “bear[s] a strong

presumption of validity”).

The Act’s jurisdiction-stripping provision easily

satisfies this standard. Both Sudan and the United States

offer several reasonable justifications for the Act. First,

the Act’s jurisdiction-stripping provision fosters stronger

relations with Sudan by limiting its potential liability

to United States nationals. The government exercised

its power to espouse claims against Sudan, eliminating

“sources of friction between the two sovereigns.” Dames

& Moore v. Regan, 453 U.S. 654, 679, 101 S. Ct. 2972,

69 L. Ed. 2d 918 (1981) (cleaned up). Consistent with the

espousal of claims in the Settlement Agreement, the Act

10a

Appendix A

stripped jurisdiction over certain pending claims, freeing

Sudan from potential liability that could otherwise impair

its relationship with the United States.

Second, the Act’s jurisdiction-stripping provision

rationally distinguishes between terrorist attacks in

general and the September 11 attacks. The Act’s carveout

for September 11 victims and families involves one of the

most fatal attacks on the United States homeland. And

the litigation surrounding September 11 has been ongoing

for nearly twenty years. The Marks’ claims, on the other

hand, stemmed from a terrorist attack abroad, and their

suit arose just a few months before the United States and

Sudan entered into the Agreement. It was rational for

the Act to maintain decades-old claims over more recent

ones and to prioritize attacks on the homeland over other

attacks.

The Marks also contend the Act’s jurisdictionstripping provision violates equal protection by impairing

their right to access the courts. Because the right to access

the courts is a fundamental right, the Marks maintain the

unequal treatment must survive strict scrutiny.

The Supreme Court has long held that citizens have

a constitutional right to access the courts. See, e.g.,

Chambers v. Baltimore & O. R. Co., 207 U.S. 142, 148,

28 S. Ct. 34, 52 L. Ed. 143, 6 Ohio L. Rep. 498 (1907).

Circuit courts have recognized two types of access claims:

forward looking claims and backward looking claims.

11a

Appendix A

Christopher v. Harbury, 536 U.S. 403, 412-14, 122 S. Ct.

2179, 153 L. Ed. 2d 413 (2002) (discussing cases); see also

Broudy v. Mather, 460 F.3d 106, 117-21, 373 U.S. App. D.C.

170 (D.C. Cir. 2006) (recognizing both types). Forward

looking claims generally arise when the government

hinders a litigant’s ability to file or prepare for a lawsuit

that has not yet commenced. For a forward looking claim

to succeed, the Marks must show that “systemic official

action frustrate[d] [the Marks] in preparing and filing”

their suit. Christopher, 536 U.S. at 413. The Marks make

no such showing. Backward looking claims arise when the

government “cause[s] the loss or inadequate settlement

of a meritorious case” or “the loss of an opportunity

to sue.” Id. at 413-14. To bring a successful backward

looking claim, the Marks must assert that the government

“caused the[ir] suit to be dismissed as untimely” or that

some sort of official conduct “render[ed] hollow [their]

right to seek redress.” Sousa v. Marquez, 702 F.3d 124,

128 (2d Cir. 2012) (cleaned up). But the Marks assert

neither. The Marks challenge Congress’ restoration of

Sudan’s sovereign immunity, but these claims simply do

not implicate the right to access the courts. See Patchak

v. Jewell, 828 F.3d 995, 1004, 424 U.S. App. D.C. 173 (D.C.

Cir. 2016), aff’d sub nom. Patchak, 138 S. Ct. at 897.

Moreover, the Marks’ claims are in tension with

the government’s power to establish inferior courts and

espouse the claims of its citizens. Since the Founding, the

President has exercised the power to espouse the claims

of citizens. See, e.g., Ware v. Hylton, 3 U.S. (3 Dall.) 199,

259-60, 1 L. Ed. 568, 3 Dall. 199 (1796) (statement of

Iredell, J.); Dames & Moore, 453 U.S. at 679 n.8. Similarly,

12a

Appendix A

Congress has long exercised its plenary authority to

set the jurisdictional reach of the federal courts. The

right to access courts does not constrain either of these

longstanding powers.

Finally, although we hold the Act validly stripped

the federal courts of jurisdiction over the Marks’ cause

of action, the district court erred when it dismissed the

Marks’ complaint with prejudice. “[A] dismissal for want of

subject-matter jurisdiction can only be without prejudice.”

N. Am. Butterfly Ass’n v. Wolf, 977 F.3d 1244, 1253, 450

U.S. App. D.C. 20 (D.C. Cir. 2020); see also Fed. R. Civ. P.

41(b). Accordingly, we modify the district court’s judgment

to be a dismissal without prejudice.

***

The Marks family suffered a horrible attack by

Hamas for which it seeks recovery from Sudan. Congress

has, however, stripped this court of jurisdiction to hear

the Marks’ terrorism related claims. That provision is

constitutional, and we lack jurisdiction. We affirm the

district court’s judgment as modified.

So ordered.

13a

Appendix B — Appendix

MEMORANDUM

opinion

of the united states DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA,

FILED OCTOBER 7, 2021

United States District Court

for the District of Columbia

Case No. 1:20-cv-03022 (TNM)

CHAVA RACHEL MARK, et al.,

Plaintiffs,

REPUBLIC OF THE SUDAN,

Defendant.

October 7, 2021, Decided;

October 7, 2021, Filed

MEMORANDUM OPINION

Plaintiffs sue the Republic of the Sudan. They seek

compensation for its decades-long support for the terrorist

group Hamas, whose operatives carried out an attack in

Israel that brutalized their family. Sudan moves to dismiss

based on its renewed immunity in U.S. courts. The United

States intervenes in support of Sudan’s position. The

Court agrees dismissal is required.

14a

Appendix B

In July 2016, operatives of the Hamas terrorist

organization attacked members of the Mark family as they

drove along an Israeli highway. Pls.’ Compl. (“Compl.”) ¶¶

40, 64, ECF No. 1.1 Of the 25 bullets fired into the family

car, six struck Rabbi Michael Mark, killing him. Id. ¶ 65.

The car careened off the road and overturned, but the

other occupants survived, including Rabbi Mark’s wife,

Chava, who was shot in the head, and their daughter

“TBM,” who was shot in the stomach. Id. ¶¶ 67-71. The

survivors suffer from permanent physical injuries. Id.

¶¶ 119-21. They also suffer from trauma and emotional

injuries, as do a dozen other members of the Mark family.

Id. ¶¶ 122-23.

Plaintiffs are victims, family members of victims, and

the estate of a family member of a victim (collectively,

“the Marks”). They sue Sudan for providing material

support and resources to Hamas that enabled it to execute

the attack. Id. ¶¶ 91-110. Relying on their status as U.S.

nationals and the “terrorism exception” to the Foreign

Sovereign Immunities Act (“FSIA”), see 28 U.S.C. §

1605A, they seek punitive damages on top of $250,000,000

in compensatory damages. Compl. at 20. 2

Shortly after the Marks sued, the United States

signed a bilateral claims-settlement agreement with the

1. As it must at the motion to dismiss stage, the Court assumes

as true all allegations appearing in the complaint.

2. All page citations refer to the pagination generated by the

Court’s CM/ECF system.

15a

Appendix B

regime that now governs Sudan. See Claims Settlement

Agreement, U.S.-Sudan, Oct. 30, 2020, T.I.A.S. No. 21209 (entered into force Feb. 9, 2021) (“CSA”), ECF 29-1.

Under the agreement, the United States espoused and

terminated all claims by U.S. nationals against Sudan

related to terrorist acts on foreign soil; in exchange,

Sudan agreed to pay $335 million to compensate victims

of specific attacks. 3 Id.

The CSA coincided with a broader normalization of

relations between the two countries: The United States

rescinded Sudan’s designation as a state sponsor of

terrorism, and Congress agreed that Sudan’s sovereign

immunity would resume once the Secretary of State

certified that certain conditions had been met, including

Sudan’s payment of the CSA settlement funds. See

Rescission of Determination Regarding Sudan, 85 Fed.

Reg. 82,565 (Dec. 14, 2020); Sudan Claims Resolution

Act, Consolidated Appropriations Act, 2021, Pub. L. No.

116-260 (2020) (“SCRA”). Earlier this year, the Secretary

certified that both countries discharged their obligations

under the SCRA. See Certification Under Section 1704(a)

(2) of the Sudan Claims Resolution Act Relating to the

Receipt of Funds for Settlement of Claims Against Sudan,

86 Fed. Reg. 19,080 (Apr. 12, 2021).

So Sudan now moves to dismiss under Rule 12(b)(1),

(b)(2), and (b)(6). See Def’s Mot. to Dismiss (“Mot.”), ECF

3. The CSA compensates parties in nine lawsuits arising from

three terrorist incidents: (1) the August 1998 bombings of U.S.

embassies in Africa, (2) the October 2000 bombing of the U.S.S.

Cole, and (3) the January 2008 murder of USAID employee John

Granville. CSA at 11-12, ECF No. 29-1.

16a

Appendix B

No. 16. Based on its restored sovereign immunity, Sudan

asserts that the Court lacks subject matter jurisdiction

and personal jurisdiction and that the Marks no longer

have a private right of action. Id. at 10-14. The Marks

contend that the CSA and SCRA violate their rights

to equal protection under the law and ask the Court

to declare them unconstitutional. Pls.’ Opp’n to Mot. to

Dismiss (“Opp’n”) at 19, ECF No. 20.4 The Marks filed

a notice of constitutional challenge under Federal Rule

of Civil Procedure 5.1, see ECF No. 21, which the Court

certified to the Attorney General, see ECF No. 25.

Intervening as of right, see 28 U.S.C. § 2403(a), the

United States defends the constitutionality of the CSA

and SCRA and supports dismissal, see U.S. Mem. of Law

(“U.S. Mem.”), ECF No. 30. This matter is now ripe.

II.

The FSIA is the “sole basis for obtaining jurisdiction

over a foreign state” in U.S. courts. Argentine Republic v.

Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.

Ct. 683, 102 L. Ed. 2d 818 (1989). Under the FSIA, a foreign

state and its political subdivisions are presumptively immune

from jurisdiction unless an exception applies. 28 U.S.C. §§

1604-07; see Verlinden B.V. v. Cent. Bank of Nigeria, 461

U.S. 480, 488-89, 103 S. Ct. 1962, 76 L. Ed. 2d 81 (1983). The

4. Although a plaintiff cannot typically amend his complaint

through briefing, see Singh v. District of Columbia, 55 F. Supp. 3d 55,

70 (D.D.C. 2014), requiring the Marks to file an amended complaint

here would not alter the analysis and would needlessly delay the

case’s resolution. So the Court will address the constitutional

challenge as the Marks advance it in the briefs.

17a

Appendix B

FSIA creates an exception for claims alleging injury or death

caused by state-supported terrorist acts under 28 U.S.C.

§ 1605A(a)(1), which also provides a private right of action.

A court must dismiss an action if it lacks subject matter

jurisdiction. Fed. R. Civ. P. 12(h)(3). When evaluating a

motion to dismiss under Rule 12(b)(1), the Court must treat

the complaint’s factual allegations as true and afford the

plaintiff the benefit of all inferences derivable from the

facts alleged. Fairbanks v. Roller, 314 F. Supp. 3d 85, 90

(D.D.C. 2018). But the Court need not accept unsupported

inferences or legal conclusions couched as facts. Browning

v. Clinton, 292 F.3d 235, 242, 352 U.S. App. D.C. 4 (D.C. Cir.

2002). Plaintiffs bear the burden of establishing jurisdiction

by a preponderance of the evidence. Erwin-Simpson v.

AirAsia Berhad, 375 F. Supp. 3d 8, 12 (D.D.C. 2019).

To defeat a motion to dismiss for lack of personal

jurisdiction under Rule 12(b)(2), plaintiffs must make

a prima facie showing that the Court has personal

jurisdiction over each defendant. Id. In doing so, they

must provide factual support beyond mere conclusory

assertions. Id. The Court can consider materials outside

the pleadings in determining its jurisdiction, Jerome

Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253, 365

U.S. App. D.C. 270 (D.C. Cir. 2005), including undisputed

facts in the record or disputed facts that it resolves, see

Herbert v. National Academy of Sciences, 974 F.2d 192,

197, 297 U.S. App. D.C. 406 (D.C. Cir. 1992). 5

5. Because it lacks jurisdiction, the Court does not address

Sudan’s motion to dismiss for failure to state a claim under Rule

12(b)(6). See Mot. at 13-14.

18a

Appendix B

III.

The Marks never contest that, as enacted, the CSA

terminates their claims or that the SCRA restores Sudan’s

sovereign immunity for those claims. See Opp’n at 11-13.

And that much is clear from the text of the legislation:

Sudan “shall not be subject to the exceptions to immunity

from jurisdiction . . . under section 1605(a)(7) (as such

section was in effect on January 27, 2008) or section

1605A . . . .” SCRA § 1704(a)(1)(A); see also CSA, Art.

IV(2)(d) (explaining that United States “[s]hall release and

finally discharge Sudan from all espoused U.S. national

claims” as further specified).

Rather, the Marks contend that the CSA and

SCRA violate their constitutional rights. Opp’n at 10-19.

They protest that their claims are arbitrarily treated

differently than other terrorism-related claims against

Sudan that are terminated under the CSA but eligible

for distributions from the $335 million settlement fund

or funds set aside in the SCRA. Id. at 16-17. They also

point to an implicit carve out in the CSA and SCRA for

an ongoing multidistrict lawsuit related to the September

11 terrorist attacks; Congress did not restore Sudan’s

sovereign immunity for that litigation, so it proceeds

against Sudan. Id. The Marks cry foul at being left out of

the mix, and they characterize the disparate treatment

as an equal protection violation. Id. at 17-18.

Of course, not all differences amount to invidious

discrimination. But the Marks assert that any differences

19a

Appendix B

between the compensated claimants and themselves

are arbitrary, as the CSA “provides no standards that

determine which claimants receive payment under the

CSA and which claimants do not.” Id. at 16.

All parties agree the rational basis standard governs

the Marks’ equal protection claim. See Opp’n at 15; Def’s

Reply Mem. (“Reply”) at 9, ECF No. 24; U.S. Mem. at 15;

see also Am. Bus Ass’n v. Rogoff, 649 F.3d 734, 741-42, 396

U.S. App. D.C. 353 (D.C. Cir. 2011) (noting that claim that

statute “violates equal protection by singling out” certain

parties “for special treatment is subject only to rationalbasis review”). Under that standard, the legislation

is presumed valid and the Marks “have the burden to

negative every conceivable basis which might support it.”

FCC v. Beach Communications, 508 U.S. 307, 315, 113 S.

Ct. 2096, 124 L. Ed. 2d 211 (1993) (cleaned up). Contrary

to the Marks’ suggestion, see Opp’n at 17, courts “never

require a legislature to articulate its reasons for enacting

a statute,” so “it is entirely irrelevant for constitutional

purposes whether the conceived reason for the challenged

distinction actually motivated the legislature.” Beach

Commc’ns, 508 U.S. at 315.

The Marks fail to negate every conceivable justification

and thus do not meet their burden. See id. Sudan advances

a few unrebutted rationales. Reply at 10-15. More still, the

United States as intervenor offers several justifications—

each conceivable and each unrefuted by the Marks. See

U.S. Mem. at 16-20.

First, the matters identified in the CSA as eligible for

compensation all involved claims in which Sudan’s liability

20a

Appendix B

was already resolved by the date of the settlement, either

through default judgment or private settlement. U.S.

Mem. at 16-19. In contrast, when the Marks filed this case

in October 2020, Sudan and the United States were in the

final stages of negotiating their settlement. And Sudan

was not served until March 2021—after the agreements

were in force. See ECF No. 12. Even as of today, no judicial

ruling or settlement has established Sudan’s liability in the

Hamas attack on the Mark family. It is understandable,

then, that claims relating to that attack—and any number

of other unknown or yet-unlitigated incidents—are not

covered by the agreements executed last fall.6 That the

agreements limited Sudan’s liability to claims where it

was already on the hook was rational.

More, when government decisionmakers must draw

a line for benefits or burdens somewhere, courts must be

especially hesitant to second-guess where that line falls.

See Beach Commc’ns, 508 U.S. at 315-16 (“Defining a class

of persons” for benefits or burdens “inevitably requires

that some persons who have an almost equally strong

claim to favored treatment be placed on different sides of

the line . . . .” (cleaned up)). And after all, the settlement

resulted from a compromise. The Court may assume that

the line fell where it did as a result of the push and pull

of negotiation.

Second, unlike the attack on the Mark family, the

incidents eligible under the CSA for compensation

6. Indeed, for all the Court knows, the settlement did not cover

the attack on the Mark family simply because U.S. negotiators did

not know about it to include it.

21a

Appendix B

all involved attacks against United States property,

its employees, or both. See U.S. Mem. at 18-19. It is

understandable for the United States to prioritize

compensation for attacks targeting itself rather than

merely its nationals. This explanation blunts the Marks’

argument that the CSA lacks any “standards that

determine which claimants receive payment” and thus

awards benefits arbitrarily. Opp’n at 16.

The wisdom of the distinction is beside the point.

It need only be rationally related to a legitimate

governmental interest. City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 87 L. Ed.

2d 313 (1985). And it is: The United States has a legitimate

interest in cultivating relations with foreign nations as well

as securing compensation for its aggrieved nationals. See

generally Dames & Moore v. Regan, 453 U.S. 654, 679-88,

101 S. Ct. 2972, 69 L. Ed. 2d 918 (1981). The classifications

implicitly created by the claims settlement are neither at

odds with nor “clearly irrelevant” to the stated goals of the

CSA and SCRA of repairing the countries’ relationship.

United States Dep’t of Agriculture v. Moreno, 413 U.S.

528, 534, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973).

Third , the claims related to September 11 are unique.

Those claims were not espoused and terminated in the

CSA and remain pending against Sudan. See SCRA §

1706(a)(2)(A). The Marks think this “disparate treatment”

is also capricious, saying it “bears no rational relation” to

the United States’ goals in settling claims against Sudan.

Opp’n at 15. But the September 11 claims are not similarly

situated to the Marks’ claims or those compensated by

22a

Appendix B

the settlement. Unlike all the other claims, they concern

a terrorist attack on U.S. soil. The United States could

rationally carve out this high-profile tragedy with

thousands of American casualties as sui generis. And here

again, that litigation with hundreds of defendants had

been ongoing for nearly two decades by the date of the

settlement, unlike the Marks’ eleventh-hour claims filed

in October 2020. See In re Terrorist Attacks on Sept. 11,

2001, No. 03-mdl-01570, 2020 U.S. Dist. LEXIS 224722

(S.D.NY.).

Lastly, a word about the context. Even if it had

reason to second-guess the Government’s judgment

here, the Court would not given the broad latitude the

Constitution grants the political branches to manage the

nation’s foreign relations. See, e.g., American Ins. Assn.

v. Garamendi, 539 U.S. 396, 420, 123 S. Ct. 2374, 156 L.

Ed. 2d 376 (2003) (terminating “claims that may be held

by residents of this country is a matter well within the

Executive’s responsibility for foreign affairs” because

unresolved claims “may be sources of friction acting as an

impediment to resumption of friendly relations” (cleaned

up)).

With the power to settle claims comes the power to

settle them imperfectly. The Marks essentially ask for

the Court to rule that the executive branch should have

negotiated better. This it will not and cannot do. See

Belk v. United States, 858 F.2d 706, 710 (Fed. Cir. 1988)

(“[J]udicial inquiry into whether the President could have

extracted a more favorable settlement would seriously

interfere with the President’s ability to conduct foreign

23a

Appendix B

relations.”). Nor can the Court assume that incorporating

the Marks’ claims in the settlement would come at no

cost to equal or greater national priorities. Minding the

separation of powers integral to our government, the

Court declines to second-guess the political branches’

wisdom here.

In the alternative, the Marks assert that the Court

should actually apply strict scrutiny in analyzing the CSA

and SCRA because together they infringe on the Marks’

fundamental right to access the courts. Opp’n at 18-19.

This contention lacks merit. Congress’s authority to limit

the jurisdiction it has bestowed on federal courts is well

established. See Patchak v. Zinke, 138 S. Ct. 897, 907,

200 L. Ed. 2d 92 (2018). No less so for foreign sovereign

immunity, as it is “Congress’ prerogative to alter a foreign

state’s immunity and to render the alteration dispositive

of judicial proceedings in progress.” Bank Markazi v.

Peterson, 578 U.S. 212, 236, 136 S. Ct. 1310, 194 L. Ed.

2d 463 (2016). And the executive’s ability to settle or

terminate even private claims in the nation’s interest is

clear. Garamendi, 539 U.S. at 420. None of these routine,

constitutionally prescribed actions generally bar the

Marks from accessing the courts to seek justice.

More, the Marks fail to invoke the elements of a proper

denial-of-access claim. See Broudy v. Mather, 460 F.3d

106, 117-18, 373 U.S. App. D.C. 170 (D.C. Cir. 2006). So

their arguments understandably look very different than

those that have prevailed in prior cases. See Christopher

24a

Appendix B

v. Harbury, 536 U.S. 403, 412, 413-14, 122 S. Ct. 2179,

153 L. Ed. 2d 413 (2002) (collecting cases). The Marks

are not the victims of misconduct by government actors

whom they now sue for blocking their access to legal relief.

See id; cf. Sousa v. Marquez, 702 F.3d 124, 128 (2d Cir.

2012) (“backward-looking right of access” claims “would

be available only if the governmental action caused the

plaintiff’s suit to be dismissed as untimely or if official

misconduct was so severe as to render hollow his right to

seek redress” (cleaned up)).

Nor are the Marks in the same shoes as indigent

or imprisoned plaintiffs who are hindered by fees or

regulations imposed by the Government. See Christopher,

536 U.S. at 413-14. They are still free to enter court and

sue any other defendant or for any other reason. After

all, the Marks proceed before this very Court against the

Islamic Republic of Iran on identical claims related to the

Hamas attack. See Mark v. Islamic Republic of Iran, No.

20-cv-00651 (D.D.C.).

That the political branches changed the rules inside

the courthouse does not mean that they have blocked the

courthouse doors. Because the CSA and SCRA do not

infringe on any right to access the courts, strict scrutiny

is unwarranted.

***

Hav ing deter mined that the CSA and SCRA

survive constitutional challenge, the Court returns to its

jurisdiction. The visit is brief.

25a

Appendix B

No party disputes that the Secretary of State certified

that the countries discharged their duties under the

SCRA, so Sudan’s sovereign immunity is restored. The

terrorism exception to the FSIA was the sole basis for

jurisdiction, so the Court now lacks personal and subject

matter jurisdiction over Sudan. See Verlinden, 461 U.S. at

485 n.5. The Court must dismiss the case. Accord Clay v.

Socialist People’s Libyan Arab Jamahiriya, 614 F. Supp.

2d 21, 25 (D.D.C. 2009) (dismissing claims against Libya

under FSIA § 1605A after Libyan Claims Resolution

Act terminated terrorism-related claims and restored

sovereign immunity).

IV.

For these reasons, the Court will grant the motion

and dismiss the case with prejudice. A separate Order

will issue.

/s/ Trevor N. McFadden

TREVOR N. McFADDEN, U.S.D.J.

Dated: October 7, 2021

26a

APPENDIX C —Appendix

DENIAL COF REHEARING

EN BANC OF THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT, FILED SEPTEMBER 25, 2023

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 21-5250

September Term, 2023

1:20-cv-03022-TNM

Filed On: September 25, 2023

CHAVA RACHEL MARK, INDIVIDUALLY AND

AS PARENT AND NATURAL GUARDIAN OF

TBM, RLM AND EBM, MINORS, et al.,

Appellants,

REPUBLIC OF THE SUDAN AND

UNITED STATES,

Appellees.

BEFORE:

Srinivasan, Chief Judge; Henderson, Millett,

Pillard, Wilkins, Katsas, Rao, Walker,

Childs, Pan, and Garcia, Circuit Judges

ORDER

Upon consideration of appellants’ petition for

rehearing en banc, and the absence of a request by any

member of the court for a vote, it is

27a

Appendix C

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Daniel J. Reidy

Deputy Clerk

28a

Appendix

APPENDIX D — DENIAL

OF D

PANEL REHEARING

OF THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT,

FILED SEPTEMBER 25, 2023

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 21-5250

September Term, 2023

1:20-cv-03022-TNM

Filed On: September 25, 2023

CHAVA RACHEL MARK, INDIVIDUALLY AND

AS PARENT AND NATURAL GUARDIAN OF

TBM, RLM AND EBM, MINORS, et al.,

Appellants,

REPUBLIC OF THE SUDAN AND

UNITED STATES,

Appellees.

BEFORE: Srinivasan, Chief Judge; and Wilkins and Rao,

Circuit Judges

ORDER

Upon consideration of appellants’ petition for panel

rehearing filed on September 5, 2023, it is

29a

Appendix D

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Daniel J. Reidy

Deputy Clerk

30a

APPENDIX E —Appendix

PROVISIONS

INVOLVED

CLAIMS AND DISPUTE RESOLUTION

Agreement Between the

UNITED STATES OF AMERICA

and SUDAN

with Side Letter

Signed at Washington October 30, 2020

Entered into force February 9, 2021

31a

Appendix E

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8,

1966 (80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series

issued under the authority of the Secretary of State shall

be competent evidence . . . of the treaties, international

agreements other than treaties, and proclamations by the

President of such treaties and international agreements

other than treaties, as the case may be, therein contained,

in all the courts of law and equity and of maritime

jurisdiction, and in all the tribunals and public offices of

the United States, and of the several States, without any

further proof or authentication thereof.”

32a

Appendix E

CLAIMS SETTLEMENT AGREEMENT

BETWEEN

THE GOVERNMENT OF THE UNITED STATES

OF AMERICA

AND

THE GOVERNMENT OF THE REPUBLIC

OF THE SUDAN

The Government of the United States of America

And

The Government of the Republic of the Sudan,

Wishing to further develop the relations between their

two countries in a spirit of friendship and cooperation,

especially in light of Sudan’s ongoing transition

to democracy;

Recognizing and condemning the horrific nature of

the 1998 bombings of the U.S. Embassies in Nairobi,

Kenya, and Dar es Salaam, Tanzania, and the 2000

attack on the U.S.S. Cole, and expressing deepest

sympathies/or victims;

Acknowledging that certain victims of these attacks

have asserted claims in U.S. courts against Sudan

in relation to these attacks;

33a

Appendix E

Acknowledging that while Sudan denies any

involvement in these attacks, it has been willing to

address these claims as part of its effort to fully

normalize relations with the United States;

Acknowledging that Sudan has already paid

compensation pursuant to certain private settlements

to a number of victims of the 2000 attack on the

U.S.S. Cole;

Recognizing Sudan’s willingness to address

additional claims arising out of the bombings of the

U.S. Embassies and the attack on the U.S.S. Cole and

Sudan’s goal of having its immunities restored to those

of a state not designated as a state sponsor of terrorism

and barring and precluding suits and actions with respect

to such claims from the jurisdiction of courts in the

United States of America; and

Recognizing that the continued normalization of

relations is a matter of great importance to the

relationship between the two countries,

Have agreed on the following:

ARTICLE I

For purposes of this Agreement:

Reference to “Sudan” shall mean the Republic

of the Sudan, the Government of the Republic of

the Sudan, any agency or instrumentality of the

34a

Appendix E

Republic of the Sudan, and any official, employee,

or agent thereof acting within the scope of his or

her office, employment, or agency.

Reference to the “United States” (or “U.S.”)

shall mean the United States of America, the

Government of the United States of America, any

agency or instrumentality of the United States

of America, and any official, employee, or agent

thereof acting within the scope of his or her office,

employment, or agency.

For g reater certainty, reference to “U.S.

nationals” shall mean natural and juridical

persons who were nationals of the United States

at the time their claim arose and through the

date of entry into force of this Agreement, and

reference to “foreign nationals” shall mean all

other natural and juridical persons, including

those who were not nationals of the United States

at the time their claims arose but have since

become nationals of the United States.

ARTICLE II

The objective of this Agreement is to reach a

comprehensive settlement that:

settles the claims of the United States of America

and, through espousal, those of U.S. nationals;

provides meaningful compensation in connection

with claims of foreign nationals employed or

35a

Appendix E

performing a contract awarded by the United

States and establishes a fair process through

which to distribute compensation for such claims;

and

bars and precludes all U.S. national and foreign

national suits and actions (including suits and

actions with judgments that are still subject to

appeal or other forms of direct judicial review,

as well as suits or actions to wholly or partially

satisfy final judgments through execution or

attachment) and future suits and actions in the

courts of the United States of America through

legislation providing to Sudan the sovereign,

diplomatic and official immunities normally

provided by the United States to other states

if such claims, suits, or actions are against Sudan or,

where the claims, suits, or actions implicate in any way

the responsibility of Sudan, against Sudan’s nationals; and

such claims, suits, or actions are brought by or on behalf of

U.S. nationals or such claims, suits, or actions are brought

by or on behalf of foreign nationals; and such claims, suits,

or actions arise from personal injury (whether physical

or non-physical, including emotional distress), death, or

property loss caused by an act of torture, extrajudicial

killing, aircraft sabotage, hostage taking or detention or

other terrorist act, or the provision of material support or

resources for such an act, occurring outside of the United

States of America and prior to the date of execution of

this Agreement.

36a

Appendix E

ARTICLE III

Upon entry into force of this Agreement, the

Government of the United States of America

confirms the enactment of legislation that Sudan

may invoke, upon the receipt by the United States

of the funds referred to in Paragraph 2 of this

Article, that:

provides the same sovereign, diplomatic,

and official immunity to Sudan and

it s pr op e r t y a nd t o it s a g enc ie s ,

instrumentalities, officials, and their

property, as is normally provided by

the United States to other states and

their property and to their agencies,

instrumentalities, officials, and their

property; and

bars and precludes all suits and actions

specified in Article II of this Agreement

pending in the courts of the United

States of America whether brought by

or on behalf of U.S. nationals or foreign

nationals (including suits or actions with

judgments that are still subject to appeal

or other forms of direct judicial review,

as well as any pending suits or actions to

wholly or partially satisfy final judgments

through execution or attachment) and

future suits and actions specified in Article

II.

37a

Appendix E

The Government of the Republic of the Sudan

shall transfer to the Government of the United

States a payment of U.S. $335,000,000, as the

basis for settling the claims and the legislation

barring and precluding the suits and actions

specified in Article II of this Agreement, to be

used by the Government of the United States

of America for making distribution payments

as specified in the annex to this Agreement

(“Annex”).

In accordance with the applicable domestic

procedures of the United States of America, the

Government of the United States of America shall

deposit amounts received from the Government

of the Republic of the Sudan pursuant to this

Agreement into an interest-bearing account in

the United States Treasury until distribution

pursuant to a determination by the Secretary

of State of the United States of A merica

(“Secretary”) or a designee of the Secretary.

ARTICLE IV

The Government of the United States of America

shall accept the funds specified in Article III(2)

of this Agreement for distribution as a full and

final settlement of its claims, suits, and actions

and, through espousal, those of U.S. nationals as

specified in Article II of this Agreement, and for

payment of compensation, as specified in Article

II, to resolve claims, suits, and actions of foreign

nationals.

38a

Appendix E

Upon receipt of the funds from the Government

of the Republic of the Sudan specified in Article

III(2) of this Agreement, the Government of the

United States of America:

Shall certify that Sudan has made final

payment of the funds to the United States

in accordance with any certification

requirement set forth in the legislation

referred to in A rticle III(1) of this

Agreement.

Shall take action as appropriate and

necessary, consistent with its constitutional

structure, to help bring about the success

of Sudan’s efforts to secure

the termination of legal proceedings

in U.S. federal or state courts

involving any claims, suits, or

actions specified in Article II of

this Agreement, regardless of the

nationality of the claimant; and

ii.

the nullification of any and all

attachments and measures in

support of attachments, and the

vacatur of any judgments rendered

by a U.S. federal or state court,

consistent with the legislation referred to

in Article III(1) of this Agreement.

39a

Appendix E

Shall avoid any action that:

contradicts the ter ms of this

Ag reement, and in particular

challenges the sovereign immunity

of Sudan concerning any of the

claims, suits, or actions specified

in Article II of this Agreement; or

ii.

st a nds as a n obst acle t o the

accomplishment and execution of

this Agreement.

Shall release and finally discharge Sudan

from all espoused U.S. national claims that

come within Article II of this Agreement

and shall refrain from presenting any such

claim to Sudan, on its behalf or on behalf

of another, in the future. Consistent with

this release and final discharge, if any

such claim is presented directly by a U.S.

national to Sudan in the future, Sudan

shall have no responsibility for the claim

and should refer it back to the Government

of the United States of America.

Before making any distribution payment,

pursuant to this Agreement, to an eligible

recipient on an espoused claim of a U.S.

national, shall require the recipient to

execute a writing that includes a waiver

and release of all the recipient’s rights

40a

Appendix E

to assert claims for compensatory or

other relief in any form or to enforce any

judgment against Sudan in connection

with any claim, suit, or action specified in

Article II of this Agreement.

Before making any distribution payment,

pursuant to this Agreement, to an eligible

recipient in connection with any other

claim, shall require the recipient to

execute a writing that includes a waiver

and release of all the recipient’s rights

to assert claims for compensatory or

other relief in any form or to enforce any

judgment against Sudan in connection

with any claim, suit, or action specified in

Article II of this Agreement.

ARTICLE V

The Annex attached hereto is an integral part of this

Agreement. This Agreement shall enter into force on

the date of the later note in an exchange of diplomatic

notes between the Government of the United States of

America and the Government of the Republic of the Sudan

confirming the completion of any internal procedures

necessary for the entry into force of this Agreement, which

in the case of the United States, shall include enactment

of the legislation described in Article III(1).

In Witness whereof, the undersigned, being duly

authorized by their respective Governments, have signed

this Agreement.

41a

Appendix E

DONE at Washington, D.C., on this 30th day of October,

2020, in duplicate, in the English language.

FOR THE GOVERNMENT

OF THE UNITED STATES

OF AMERICA:

/s/

FOR THE GOVERNMENT

OF THE REPUBLIC OF

THE SUDAN:

/s/

42a

Appendix E

ANNEX

The Government of the United States of America

and the Government of the Republic of the

Sudan, in furtherance of their Claims Settlement

Agreement (the “Agreement”), of which this

Annex is an integral part, have agreed that the

Government of the United States of America shall

make distributions from the Funds transferred

pursuant to Article III of the Agreement as

follows:

to compensate U.S. nationals whose claims

have been espoused by the United States

of America pursuant to the Agreement

and to the payment of private settlements

related to certain claims in the following

cases:

Owens v. Republic of Sudan (D.D.C.),

01-cv-2244 (IDB)

ii.

Khaliq v. Republic of Sudan (D.D.C.),

10-cv-356 (IDB)

iii. Taitt v. Islamic Republic of Iran

(D.D.C.), 20-cv-1557 (RC)

iv. Granville v. Republic of Sudan, Case

No. 2018-28, in the Permanent Court

of Arbitration

43a

Appendix E

to the payment of a private settlement

related to Mwila v. The Islamic Republic

of Iran (D.D.C.), 08-cv-1377 (IDB); and

to fund a process (as set forth below)

to distribute compensation to eligible

foreign nationals whose claims have been

addressed by the Agreement:

Definitions

A. For purposes of section (c) of this

Annex-(1) “Applicable Litigation” means

any suit or action in the

following cases:

Wamai v. Republic of Sudan

(D.D.C.), 08-cv-1349 (IDB)

Am duso v. Rep ublic of

Sudan (D.D.C.), 08-cv-1361

(JDB)

Onsongo v. Republic of

Sudan (D.D.C.), 08-cv-1380

(IDB)

Opati v. Republic of Sudan

(D.D.C.), 12-cv-1224 (IDB)

44a

Appendix E

(2) “Embassy Bombings” means

the August 7, 1998 bombings

of the U.S. embassies in Dar

es Salaam, Tanzania, and

Nairobi, Kenya.

(3) “Party” means the Republic

of the Sudan or the United

States of America. “Parties”

means the Republic of the

Sudan and the United States

of America.

(4) “Release” means a document

signed by the claimant in which

the claimant agrees that, upon

the receipt of compensation

based on a determination

by t he Com m i s sion , t he

claimant fully, finally, and

forever waives and releases

any claims against Sudan

or the United States related

to the Agreement and the

Embassy Bombings.

ii. Commission

A. Establishment. The Government

of the Republic of the Sudan shall

establish, in consultation with

the United States of America,

a Commission in a jurisdiction

45a

Appendix E

mutually agreeable to Sudan and

the United States.

B. Appointment. The Government

of the Republic of the Sudan shall

nominate one person to be sole

commissioner of the Commission

(“Commissioner”) and shall notify

the United States of its nomination

in writing. If the United States

does not object within seven (7)

calendar days of written notice

of such nomination, the person

nominated shall be duly appointed

as the sole Commissioner of

the Commission w ithout any

further action from either Party.

A Commissioner may also be

appointed, and an appointed

Commissioner may be replaced,

by the joint agreement of the

Parties.

C. A d m i n i s t r a t i v e Fe e s . U. S .

$2,000,000 shall be allocated

for the administrative fees of

the Commission. Following the

receipt of the funds specified in

Article III(2) of the Agreement,

the Government of the United

States of America shall establish

procedures to transfer funds from

this allocated U.S. $2,000,000 to

46a

Appendix E

the Commission for the payment

of administrative fees.

iii. Eligible Claims

A. Criteria. The Commission shall

determine claimant eligibility

for awards consistent with the

following criteria.

(1) A claimant may not have

otherwise received

compensation orig inating

from the amounts transferred

pursuant to Article III(2) of

the Agreement.

(2) A claimant is only eligible to

receive compensation for one

claim matching the criteria in

this subsection (A).

(3) A c l a i m a n t m u s t b e a

named pla inti ff awa rded

compensatory damages in an

Applicable Litigation related

to the w rong ful death or

injury of a foreign national.

(4) A claimant may not receive

compensat ion un less the

Applicable Litigation in which

the claimant is a plaintiff has

47a

Appendix E

been dismissed with prejudice

as to that claimant’s claims

against Sudan as a defendant

and any judgment in favor of

the claimant against Sudan in

the Applicable Litigation has

been vacated. The Commission

may make determinations of

eligibility pending receipt

of con f i r mat ion that the

Applicable Litigation has

been dismissed with prejudice

as to Sudan as a defendant

and judgments against Sudan

in the Applicable Litigation

vacated.

(5) A claimant must provide two

signed original Releases.

(6) A claim falls within one of the

categories of eligible claims,

as follows:

(a) Estate Claim. A claim

by a legal representative

of an estate for wrongful

death caused by the

Embassy Bombings.

The Commission

sha l l requ i re proof

of a put at i ve le g a l

r epr e s ent at i ve’s

48a

Appendix E

entitlement to collect on

behalf of the applicable

estate.

(b) I n j u r y C l a i m . A

claim by an individual

for a d iscer n ible

i nju r y sust a i ned i n

connection w ith the

Emba ssy Bombi ng s

(other than an injury

sustained as a result

of a claimant’s familial

relationship w ith an

i nd iv idua l k i l led or

injured by the Embassy

Bombing). In the event

that a claimant can

demonstrate good cause

for a lack of available

medical records, the

Commission may, in its

discretion, accept other

records to verify the

individual’s injuries.

Fa m i l y Me m b e r s

Cl aim. A cla i m for

mental pain and anguish

by a family member

of a foreign national

49a

Appendix E

killed in the Embassy

Bombi ng s prov ided

that the claimant is

(1) living at the time

the claimant applies

to the Commission for

compensation and (2)

not eligible to receive

compensation through

an Estate Claim as a

beneficiary of the estate

of such foreign national.

B. Award Amounts. The amount of

compensation to be distributed to

a claimant based on the category

of eligible claim is as follows:

(1) Estate Claims: U.S. $800,000

per claim

(2) Injury Claims: U.S. $400,000

per claim

(3) No n-Ben ef iciar y Family

Me m b e r C l a i m s : U. S .

$100,000 per claim

iv. Process

A. Applications. The Commission

shall establish procedures for

50a

Appendix E

claimants to apply for compensation

for eligible claims. The Commission

shall notify the counsel of record

in the cases listed in the definition

of Applicable Litigation and the

authorized representative of each

Party of the procedures within

sixty (60) days of the appointment

of the sole Commissioner. The

p r o c e du r e s s h a l l i nc lude a

deadline for claimants to apply

for compensation that is not later

than ninety (90) days following

the posting of the application

procedures to the counsel of

record by registered mail. The

Commission shall repor t the

total number of claimants and the

number of claimants by category

of claim to both Parties no later

than thirty (30) days following the

deadline for claimants to apply for

compensation.

B. Determinations. Determinations

of t he Com m i ssion sha l l be

made by the sole Commissioner.

Determinations of the Commission

shall be final and not subject to

judicial review.

The Commission may establish

procedures for review of eligibility

51a

Appendix E

determinations by the Commission

and the submission of supplemental

information to the Commission.

Any review of a determination shall

be completed by the Commission

within ninety (90) days of the

initial determination. If sufficient

funds remain to suppor t the

administrative functions of the

Commission, the Commission

may extend the period available to

review determinations consistent

with any other applicable deadlines

for completion of the Commission’s

work.

C. Noti c e a n d Pa y m e n t s. T he

Commission shall inform the

author ized representative of

each Party of the Commission’s

det er m i nat ions, wh ich sha l l

include the category of eligible

claim, amount of compensation

to be awarded, and a description

of how the claim is consistent or

inconsistent with the criteria for

eligible claims listed above and

the standards adopted by the

Commission. The Commission

shall make determinations on a

rolling basis.

52a

Appendix E

If a claim is determined eligible

for compensation, the Commission

shall request payment

instructions from the claimant.

Upon the Commission’s receipt

of such payment instructions, the

Commission shall transmit one

executed original of the Release

of the claimant to each Party.

The Government of the United

States of America shall establish

procedures to transfer funds to

an eligible claimant following

receipt from the Commission of

the Commission’s determination,

including the requisite description,

the category of eligible claim, and

the amount of compensation; an

executed original Release; and

payment instructions.

Miscellaneous

A. Report. The Commission shall

prepare and deliver a final “Report”

of the Commission’s activities to

the Parties within twenty-five (25)

months of the appointment of the

sole Commissioner.

53a

Appendix E

B. Termination. The Commission

shall terminate one (1) month

follow ing the issuance of the

Report.

54a

Appendix E

United States Department of State

Assistant Secretary of State

for African Affairs

Washington, DC 20520-3430

October 30, 2020

His Excellency

Mohammed Abdalla Eltom

c/o Embassy of the Republic of the Sudan

2210 Massachusetts Ave., NW

Washington, DC 20008

Dear Mr. Ambassador:

This letter provides further clarification concerning

Article IV(2) of the Claims Settlement Agreement

between the. United States of America and the Republic

of the Sudan, signed at Washington, D.C., October 30,

2020 (the “Agreement”). Article IV(2) of the Agreement

provides that:

Upon receipt of the funds from the Government

of the Republic of the Sudan specified in Article

III(2) of this Agreement, the Government of the

United States of America:

Shall certify that Sudan has made final

payment of the funds to the United States

in accordance with any certification

55a

Appendix E

requirement set forth in the legislation

referred to in A rticle III(1) of this

Agreement.

Shall take action as appropriate and

necessary, consistent with its constitutional

structure, to help bring about the success

of Sudan’s efforts to secure

the termination of legal proceedings

in U.S. federal or state courts

involving any claims, suits, or

actions specified in Article II of

this Agreement, regardless of the

nationality of the claimant; and

ii.

the nullification of any and all

attachments and measures in

support of attachments, and the

vacatur of any judgments rendered

by a U.S. federal or state court,

consistent with the legislation referred to

in Article III(1) of this Agreement.

These provisions address the termination of litigation and

reflect the process by which the termination of litigation

would be secured in the U.S. judicial system.

As discussed during the negotiations between the Parties

to the Agreement, Sudan, as the defendant in any cases

covered by the Agreement, and consistent with the

56a

Appendix E

Foreign Sovereign Immunities Act, would be responsible

for moving to dismiss any such case in the court in the

United States in which it is pending. The legislation

referred to in Article III(1) presumably would be a basis

for the motion to dismiss.

The United States, which is currently not a party to

such cases, nonetheless has the ability to participate in

the litigation. For example, the United States has the

authority to make filings in cases pursuant to 28 U.S.C.

§ 517, which permits the Attorney General to attend to

the interests of the United States in any case pending

in a state or federal court. The United States has made

such filings in many cases in the courts of the United

States, and in particular, in cases that were covered by

the 2008 Libya Claims Settlement Agreement. In those

cases, Libya moved for dismissal, and the United States

supported Libya’s request for dismissal with a filing that

explained the United States’ interest in the litigation.

The process for initiating the United States’ participation

in those cases began with a request by the Department of

State to the Department of Justice to make such a filing,

invoking among other things, the 2008 Libya Claims

Resolution Act, which restored to Libya immunities

normally enjoyed by states that are not designated as

state sponsors of terrorism. The Department of Justice

agreed with the recommendations in those cases, filed

the appropriate papers to support dismissal requested

by Libya, and the cases were dismissed in due course.

57a

Appendix E

As explained during the negotiations, while the Department

of State cannot guarantee that the United States will

appear in any particular case in advance, it would expect

that once Sudan were to move to request dismissal of

a case covered by the Agreement on the basis of the

legislation referred to in Article III(1), the Department of

State would send a request to the Department of Justice

for participation by the United States to support Sudan’s

request for dismissal on that basis and that such a request

by the Department of State would receive favorable

consideration. This would apply to all cases covered by

the Agreement, including, but not limited to, Opati v.

Republic of Sudan (D.D.C), 12-cv-1224 (IDB).

Sincerely,

/s/ Tibor P. Nagy

Tibor P. Nagy

58a

Appendix E

TITLE XVII—SUDAN CLAIMS RESOLUTION

SEC. 1701. SHORT TITLE.

This title may be cited as the ‘‘Sudan Claims

Resolution Act’’.

SEC. 1702. SENSE OF CONGRESS.

It is the sense of Congress that—

(1) the United States should support Sudan’s

democratic transition, particularly in light of the

country’s dire economic situation, and this is a

critical moment to address longstanding issues in the

relationship between the United States and Sudan;

(2) as part of the process of restoring normal

relations between Sudan and the United States,

Congress supports efforts to provide meaningful

compensation to individuals employed by or serving as

contractors for the United States Government, as well

as their family members, who personally have been

awarded by a United States District Court a judgment

for compensatory damages against Sudan; and

(3) the terrorism-related claims of victims and

family members of the September 11, 2001, terrorist

attacks must be preserved and protected.

59a

Appendix E

SEC. 1703. DEFINITIONS.

In this Act:

(1) A ppropriate Congressional Committees.—

The term ‘‘appropriate congressional committees’’

means—

(A) the Committee on Foreign Relations and

the Committee on the Judiciary of the Senate;

and

(B) the Committee on Foreign Affairs and

the Committee on the Judiciary of the House of

Representatives.

(2) C la ims A greement.—The term ‘‘claims

agreement’’ means the Claims Settlement Agreement

Between the Government of the United States of

America and the Government of the Republic of the

Sudan, done at Washington, D.C., on October 30, 2020,

including all annexes, appendices, side letters, related

agreements, and instruments for implementation,

including the escrow agreement among the Central

Bank of Sudan, the Federal Reserve Bank of New

York, and the escrow agent appointed thereby, as

well as the escrow conditions release agreement, set

out in an exchange of diplomatic notes between the

United States and Sudan on October 21, 2020, and

subsequently amended on December 19, 2020.

60a

Appendix E

(3) Foreign Nationa l .—The term ‘‘foreign

national’’ means an individual who is not a citizen of

the United States.

(4) Secretary.—The term ‘‘Secretary’’ means

the Secretary of State.

(5) S tate Sponsor of T errorism .—The term

‘‘state sponsor of terrorism’’ means a country the

government of which the Secretary has determined

is a government that has repeatedly provided support

for acts of international terrorism, for purposes of—

(A) section 1754(c)(1)(A)(i) of the Export

Control Reform Act of 2018 (50 U.S.C. 4813(c)

(1)(A)(i));

(B) section 620A of the Foreign Assistance

Act of 1961 (22 U.S.C. 2371);

Act (22 U.S.C. 2780(d)); or

(D) any other provision of law.

(6) S u da n .—The term ‘‘Sudan’’ means the

Government of the Republic of the Sudan.

61a

Appendix E

SEC. 1704. RECEIPT OF ADEQUATE FUNDS;

IMMUNITIES OF SUDAN.

(a) Immunity.—

(1) In general.—Subject to section 1706, and

notwithstanding any other provision of law, upon

submission of a certification described in paragraph

(2)—

(A) Sudan, an agency or instrumentality

of Sudan, and the property of Sudan or an

agency or instrumentality of Sudan, shall not

be subject to the exceptions to immunity from

jurisdiction, liens, attachment, and execution

under section 1605(a)(7) (as such section was in

effect on January 27, 2008) or section 1605A or

1610 (insofar as section 1610 relates to a judgment

under such section 1605(a)(7) or 1605A) of title 28,

United States Code;

(B) section 1605A(c) of title 28, United States

Code, section 1083(c) of the National Defense

Authorization Act for Fiscal Year 2008 (Public

Law 110–181; 28 U.S.C. 1605A note), section 589

of the Foreign Operations, Export Financing,

and Related Programs Appropriations Act,

1997 (Public Law 104–208; 28 U.S.C. 1605 note),

and any other private right of action relating

to acts by a state sponsor of terrorism arising

under Federal, State, or foreign law shall not

apply with respect to claims against Sudan, or

62a

Appendix E

any of its agencies, instrumentalities, officials,

employees, or agents in any action in a Federal

or State court; and

garnishment, or other judicial process brought

against property of Sudan, or property of any

agency, instrumentality, official, employee, or

agent of Sudan, in connection with an action that

is precluded by subparagraph (A) or (B) shall be

void.

(2) Certification.—A certification described in

this paragraph is a certification by the Secretary to

the appropriate congressional committees stating

that—

(A) the August 12, 1993, designation of

Sudan as a state sponsor of terrorism has been

formally rescinded;

(B) Sudan has made final payments with

respect to the private settlement of the claims of

victims of the U.S.S. Cole attack; and

received funds pursuant to the claims agreement

that are sufficient to ensure—

(i) pay ment of the ag reed pr ivate

settlement amount for the death of a citizen

of the United States who was an employee of

63a

Appendix E

the United States Agency for International

Development in Sudan on January 1, 2008;

(ii) meaningful compensation for claims

of citizens of the United States (other than

individuals described in section 1707(a)(1)) for

wrongful death or physical injury in cases

arising out of the August 7, 1998, bombings

of the United States embassies located

in Nairobi, Kenya, and Dar es Salaam,

Tanzania; and

(iii) funds for compensation through a

fair process to address compensation for

terrorism-related claims of foreign nationals

for wrongful death or physical injury arising

out of the events referred to in clause (ii).

(b) Scope.—Subject to section 1706, subsection (a)

of this section shall apply to all conduct and any event

occurring before the date of the certification described

in subsection (a)(2), regardless of whether, or the extent

to which, application of that subsection affects any action

filed before, on, or after that date.

by the Secretary referred to in subsection (a)(2) may not

be delegated and may not be subject to judicial review.

64a

Appendix E

S E C . 17 0 5 . R E AU T H O R I Z A T I O N O F A N D

MODIFICATIONS TO UNITED STATES VICTIMS

OF STATE SPONSORED TERRORISM FUND.

(a) I n General .—The Justice for United States

Victims of State Sponsored Terrorism Act (34 U.S.C.

20144) is amended—

(1) in subsection (c)(2)(A)(i), by striking ‘‘state

sponsor of terrorism’’ and inserting ‘‘foreign state

that was designated as a state sponsor of terrorism

at the time the acts described in clause (ii) occurred

or was so designated as a result of such acts’’;

(2) in subsection (e)(6), by striking ‘‘January 2,

2030’’ each place it appears and inserting ‘‘January

2, 2039’’; and

(3) in subsection (j)(6), in the first sentence,

by inserting after ‘‘final judgment’’ the following:

‘‘, except that the term does not include payments

received in connection with an international claims

agreement to which the United States is a state party

or any other settlement of terrorism-related claims

against Sudan’’.

(b) Lump Sum Catch-Up Payments for 9/11 Victims,

9/11 Spouses, and 9/11 Dependents.—Subsection (d)(4) of

the Justice for United States Victims of State Sponsored

Terrorism Act (34 U.S.C. 20144) is amended—

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(1) i n subpa rag raph (A), by st r i k i ng

‘‘subparagraph (B)’’ and inserting ‘‘subparagraphs

(B) and (C)’’; and

(2) by adding at the end the following:

‘‘(C) Lump S um Catch -Up Payments

for 9/11 Victims , 9/11 S pouses , and 9/11

Dependents.—

‘‘(i) I n general .—Not later than

90 days after the date of enactment of

this subparagraph, and in accordance

with clauses (i) and (ii) of subsection (d)

(3)(A), the Comptroller General of the

United States shall conduct an audit

and publish in the Federal Register

a notice of proposed lump sum catchup pay ments to 9/11 victims, 9/11

spouses, and 9/11 dependents who have

submitted applications in accordance

with subparagraph (B) in amounts

that, after receiving the lump sum

catch-up payments, would result in the

percentage of the claims of 9/11 victims,

9/11 spouses, and 9/11 dependents

received from the Fund being equal

to the percentage of the claims of 9/11

family members received from the

Fund, as of the date of enactment of this

subparagraph.

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‘ ‘ ( i i ) P u b l i c C o m m e n t . —T h e

Comptroller General shall provide an

opportunity for public comment for a

30-day period beginning on the date

on which the notice is published under

clause (i).

‘‘(iii) Report.—Not later than 30

days after the expiration comment

period in clause (ii), the Comptroller

General of the United States shall submit

to the Committee on the Judiciary and

the Committee on Appropriations of the

Senate, the Committee on the Judiciary

and the Committee on Appropriations of

the House of Representatives, and the

Special Master a report that includes

the determination of the Comptroller

General on—

‘‘(I) the amount of the lump

sum catch-up payment for each 9/11

victim;

‘‘(II) the amount of the lump

sum catch-up payment for each 9/11

spouse;

‘‘(III) the amount of the lump

sum catch-up payment for each 9/11

dependent; and

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‘‘(IV) the total amount of lump

sum catchup payments described in

subclauses (I) through (III).’’.

SEC. 1706. PRESERVATION OF CERTAIN PENDING

INTERNATIONAL TERRORISM CLAIMS AGAINST

SUDAN.

(a) F i n di ng s .— Cong ress makes the follow ing

findings:

(1) It is the long-standing policy of the United

States that civil lawsuits against those who support,

aid and abet, and provide material support for

international terrorism serve the national security

interests of the United States by deterring the

sponsorship of terrorism and by advancing interests

of justice, transparency, and accountability.

(2) Neither the claims agreement, nor any other

aspect of the effort to normalize relations with

Sudan—

(A) resolved claims against Sudan involving

victims and family members of the September 11,

2001, terrorist attacks; or

(B) otherwise advanced the interests of the

victims and family members of the September

11, 2001, terrorist attacks.

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(3) The claims referenced in paragraph

(2)(A) remain pending in the multidistrict

proceeding 03–MDL–1570 in the United

States District Court for the Southern

District of New York, and subsection (c)

preserves and protects those claims.

(b) Sense of Congress.—It is the sense of Congress

that the executive branch should not file a Statement of

Interest or any other submission, or intervene in any other

way, in the multidistrict proceeding 03–MDL–1570, in

connection to the rescission of the designation of Sudan as

a state sponsor of terrorism or the restoration of Sudan’s

immunities from jurisdiction and execution in conformity

with this Act, if such action would disadvantage terrorism

victims.

be construed to apply to, or otherwise affect—

(1) any claim in any of the proceedings comprising

the multidistrict proceeding 03-MDL-1570 in the

United States District Court for the Southern

District of New York brought by any person who, as

of the date of the enactment of this Act, has a claim

pending against Sudan (including as a member of a

class certified under Rule 23 of the Federal Rules of

Civil Procedure or as a putative member of such a

class pending certification); or

(2) the enforcement of any judgment in favor of

such person entered in such proceeding.

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(d) A pplica ble L aw.—Proceedings described in

subsection (c) shall be governed by applicable law in effect

before the date of the enactment of this Act, including—

(1) chapter 97 of title 28, United States Code

(commonly know n as the ‘‘Foreign Sovereign

Immunities Act of 1976’’), including 28 U.S.C. 1605A

note;

(2) section 201 of the Terrorism Risk Insurance

Act of 2002 (Public Law 107–297; 28 U.S.C. 1610 note),

with respect to any asset that, on or after the date

of enactment of this Act, is designated as a blocked

asset (as defined in subsection (d)(2) of that section);

(3) rules governing the rights of parties to amend

pleadings; and

(4) other relevant provisions of law.

(e) Rule of Construction.—Nothing in this section

shall alter, impact the interpretation of, or otherwise

affect—

(1) any section of chapter 97 of title 28, United

States Code; or

(2) any other provision of law.

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Appendix E

SEC. 1707. COM PENSATION FOR CERTA I N

NATURALIZED UNITED STATES CITIZENS AND

FOREIGN NATIONALS.

(a) Compensation.—

(1) I n g e n er a l .—T here is author i zed t o

be appropriated $150,0 0 0,0 0 0 for pay ment of

compensation, notwithstanding any other provision

of law, to any individual who—

(A) has been awarded a judgment in any of

the cases set forth in section (c) of the Annex to

the claims agreement; and

(B) is—

(i) a Un it e d St at e s employe e or

contractor injured in connection with the

bombings of the United States embassies

located in Nairobi, Kenya, and Dar es

Salaam, Tanzania, who became a United

States citizen after August 7, 1998, and

before the date of the enactment of this Act;

(ii) a family member—

(I) of a United States employee or

contractor injured in connection with

the bombings of the United States

embassies located in Nairobi, Kenya,

and Dar es Salaam, Tanzania; and

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Appendix E

(II) who is a United States citizen

as of the date of the enactment of this

Act; or

(iii) a family member—

(I) of a foreign national United

States employee or contractor killed

during those bombings; and

(II) who is a United States citizen as

of the date of the enactment of this Act.

(2) Payments.—With the requirement of achieving

parity in compensation between individuals who

became United States citizens after August 7, 1998,

and individuals who were United States citizens on

or before August 7, 1998, payment of compensation

under paragraph (1) to—

(A) an individual described in paragraph (1)

(B)(i) shall be based on the same standards used

to determine the compensation for an employee

or contractor injured in connection with the

bombings described in that paragraph who was a

United States citizen on or before August 7, 1998;

(B) an individual described in paragraph (1)

(B)(ii) shall be on an equal basis to compensation

provided to a family member of an individual

described in subparagraph (A); and

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Appendix E

(B)(iii) shall be on an equal, or, where applicable,

a pro rata basis to compensation provided to a

family member of a United States employee or

contractor who was a United States citizen killed

during such bombings.

(b) Distribution and Requirements.—

(1) Distribution.—The Secretary shall distribute

payments from funds made available to carry out

subsection (a)(1) to individuals described in that

subsection.

(2) A uthorization L etter .—Not later than

December 31, 2021, the Secretary shall send a letter

to each individual who will receive payment under

paragraph (1) informing the individual of the amount

of compensation the individual will receive pending

the execution of any writings under paragraph (3), and

the standards used to determine compensation under

subsection (a)(2), taking into account the individual’s

final judgment amount.

(3) Requirement before Distribution.—Before

making a payment to an individual under paragraph

(1), and after the delivery of the authorization letter

under paragraph (2), the Secretary shall require the

individual to execute a writing that includes a waiver

and release of all the individual’s rights to assert

claims for compensatory or other relief in any form or

to enforce any judgment against Sudan in connection

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Appendix E

with, and any claims against the United States related

to, any claim, suit, or action specified in Article II of

the claims agreement.

provision of law or the claims agreement—

(1) individuals described in subsection (a)(1) are

not eligible to receive any compensation as provided

by Sudan pursuant to Article III of the claims

agreement; and

(2) the funds provided by Sudan for distribution

of compensation to such individuals pursuant

to the Annex of the claims agreement shall be

redistributed—

(A) among all other individuals eligible for

compensation under section (c) of the Annex

to the claims agreement consistent with the

principles set out in that Annex; or

(B) if Sudan and the foreign nationals eligible

for compensation reach a private settlement, then

pursuant to the terms of that settlement.

(d) Department of State Reporting Requirements.—

(1) Initial Report.—Not later than 90 days after

the date of the enactment of this Act, the Secretary

shall submit to the appropriate congressional

committees a report that includes a detailed

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description of the plan of the Department of State

for the distribution of payments to each category of

individual described in subsection (a)(1), including how

the Department is arriving at compensation levels for

each individual and the amount of compensation each

such individual will receive from funds made available

to carry out that subsection.

(2) Updated Report.—Not later than December

31, 2021, the Secretary shall submit to the appropriate

congressional committees a report describing—

(A) whether the distribution plan described

in paragraph (1) was carried out; and

(B) whether compensation levels were

provided as described in the report required by

paragraph (1).

(e) Comptroller General Report.—Not later than

December 31, 2022, the Comptroller General of the United

States shall submit to the appropriate congressional

committees a report assessing the implementation of this

section by the Department of State, including whether—

(1) all distributions were made in accordance with

the requirements of subsections (a), (b), and (c); and

(2) all individuals described in subsection (a)(1)

received compensation from amounts made available

to carry out that subsection in the manner described

in subsection (a)(2).

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SEC. 1708. TREATY AND EXECUTIVE AGREEMENT

PRACTICE.

(a) F i n di ng s .— Cong ress makes the follow ing

findings:

(1) Congress and the executive branch share

responsibility for the foreign relations of the United

States pursuant to Article I and Article II of the

Constitution of the United States.

(2) A ll leg islative powers of the Federal

Government, including on matters of foreign relations,

are vested in the Congress of the United States

pursuant to section 1 of Article I of the Constitution.

(3) The executive branch may not direct Congress

to take any action, nor may it convey any legislative

or other power assigned to Congress under the

Constitution to any entity, domestic or foreign.

(4) The original escrow release conditions

agreement prescribed specific legislative text and

purported both to require enactment of such text and

provide a veto to Sudan over exceptions to that text.

(5) Congress rejected the approach described in

paragraph (4).

(6) The executive branch and Sudan subsequently

amended the escrow release conditions agreement

to eliminate the specific legislative text as well as

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the purported requirement for enactment and the

purported veto over exceptions to that text.

(b) A mendment to Case-Zablocki Act.—Section 112b

of title 1, United States Code, is amended by adding at

the end the following:

‘‘(g) It is the sense of Congress that the executive

branch should not prescribe or otherwise commit to or

include specific legislative text in a treaty or executive

agreement unless Congress has authorized such action.’’.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.