Steinberg v. Republic of Sudan

1

STUART E. STEINBERG, et al., Plaintiffs, v. REPUBLIC OF SUDAN, Defendant.

No. 20-cv-2996 (RCL)

United States District Court, District of Columbia

March 29, 2023

MEMORANDUM OPINION

Royce C. Lamberth United States District Judge

Plaintiffs in this case are U.S. citizens who were themselves injured as well as the estates and family members of U.S. citizens who were injured or killed, by terrorist attacks carried out by the Islamic Resistance Movement (“Hamas”) in Israel and Palestine. They ask the Court to hold the Republic of Sudan (“Sudan”) liable under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C § 1605A(c), for materially supporting Hamas in carrying out the attacks. After plaintiffs filed the instant case, the United States and Sudan signed a bilateral agreement espousing and settling terrorism-related claims against Sudan and restoring Sudan's sovereign immunity in U.S. courts. Congress passed legislation implementing the agreement shortly thereafter. Accordingly, Sudan moves to dismiss plaintiffs' action for, among other arguments, lack of subject-matter jurisdiction. The United States intervenes in support of Sudan's position.

Another court in this District previously dismissed a similar complaint in Mark v. Republic of Sudan, No. 1:20-cv-03022 (TNM), 2021 WL 4709718 (D.D.C. Oct. 7, 2021).^[1] Coming to the same conclusion, this Court will GRANT Sudan's motion to dismiss.

I. BACKGROUND

A. Factual Background^[2]

Plaintiffs are victims, family members of victims, and the estates of victims injured by Hamas in Israel and Palestine. Am. Compl., ECF No. 7, ¶¶ 1-36.^[3] The United States has designated Hamas as a Specially Designated Global Terrorist Organization, Foreign Terrorist Organization, and Specially Designated Terrorist. Id. ¶ 96. Six families form the plaintiff group: the Steinberg, Henkin, Fuld, Goodman, Rosenfeld, and Vaknin families (collectively “plaintiffs”). Id. ¶¶ 1-36.

The Steinberg, Henkin, and Fuld plaintiffs are the surviving family members and estates of U.S. citizens killed by Hamas. Id. ¶¶ 1-24. On July 20, 2014, Max Steinberg, who was serving in the Israeli Defense Forces ("IDF"), died when a Hamas-launched anti-tank rocket hit his vehicle in Gaza, Palestine. Id.,¶¶ 43-46. On October 1, 2015, Eitam Henkin and his wife were shot in front of their four children by Hamas members during a kidnapping attempt in the Palestinian town of Beit Furik. Id. ¶¶ 47-48. On September 16, 2018, Ari Fuld was fatally stabbed by a Hamas member on his way to a shopping center in Gush Etzion Junction in Israel. Id. ¶¶ 51-52. Investigations confirmed that Hamas was responsible for the Henkin and Fuld deaths. Id. ¶¶ 49, 53.

The Goodman, Rosenfeld, and Vaknin plaintiffs suffer severe trauma as well as mental and emotional distress caused by actual and threatened Hamas attacks. Id. ¶¶ 25-36. Asher and Batsheva Goodman, Ephriam and Kineret Rosenfeld, Bracha and Yosef Vaknin, and their respective children all live in Israel near the Gaza border. Id. ¶¶ 56, 63-65, 79. All three families have observed Hamas-launched rockets, as well as incendiary balloons and kites, near their homes. Id. ¶¶ 57, 65, 81. The parents fear that they and their children will be injured or killed by the explosives and that their children will mistake Hamas-launched incendiary balloons and kites for toys. Id. ¶¶ 58, 65, 82. Though none of these individuals have been physically injured by the explosives, the Rosenfelds' home was significantly damaged by a Hamas rocket on July 14, 2018. Id. ¶ 68. Many members of the Goodman, Rosenfeld, and Vakin families have sought counseling services in the past or are receiving such services in the present. Id. ¶¶ 60-61, 76-78, 87.

B. Executive and Legislative Background

i. Claims Settlement Agreement

In 2019, nearly thirty years after the United States designated Sudan as a state sponsor of terrorism, the two countries began the process of restoring formal diplomatic relations after Sudan's transition to democracy. U.S. Mem. in Supp. of Def's Mot. to Dismiss (“U.S. Mem.”), ECF No. 34, at 5-6. As part of the process of normalizing relations, the United States negotiated with Sudan to resolve then-pending terrorism-related lawsuits. Id. at 6.

On October 30, 2020, the United States and Sudan signed the bilateral Claims Settlement Agreement (“CSA”). See Claims Settlement Agreement, U.S.-Sudan, Oct. 30, 2020, T.I.A.S. No. 21-209 (entered into force Feb. 9, 2021), ECF No. 34-1. The preamble indicated that the agreement was part of a broader effort to “develop the relations between” the United States and Sudan “in a spirit of friendship and cooperation, especially in light of Sudan's ongoing transition to democracy[.]” Id. pmbl. The preamble further “[r]ecogniz[ed] and condemn[ed] 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 express[ed] deepest sympathies for victimsf.]” Id. Additionally, the preamble acknowledged “that certain victims of these attacks have asserted claims in U.S. courts against Sudan in relation to these attacks[,]” and “that while Sudan denies any involvement in these attacks, it has been willing to address these claims as part of its effort to folly normalize relations with the United States[.]” Id. Finally, the preamble “acknowledged] 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” and “recogniz[ed] 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[.]” Id.

With these specific purposes in mind, the parties agreed that “[t]he 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” where “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.” Id. art. II. The CSA's language closely resembles the text of the FSIA's terrorism exception to sovereign immunity, codified at 28 U.S.C. § 1605A(a)(1).^[4] Def.'s Mem. in Supp. of Mot. to Dismiss (“Def.'s Mem.”), ECF No. 23-1, at 2.

The CSA further provided that, upon the agreement's entry into force through legislation implementing it, U.S. law would broadly: (i) “provide[] the same sovereign, diplomatic, and official immunity to Sudan and its property ... as is normally provided by the United States to other states and their property[,]” and (ii) “bar[] and preclude[] all suits and actions specified in Article II[.]” Id. art. 111(1) & V.

In return for this restoration of sovereign immunity and preclusion of terrorism-related suits, Sudan agreed to pay $335 million to compensate victims of three enumerated terrorist attacks. Id. art. 111(2). These attacks were: (1) the August 7, 1998 bombing of the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania; (2) the October 12, 2000 bombing of the U.S.S. Cole in Yemen; and (3) the January 1, 2008 killing in Sudan of United States Agency for International Development employee John Granville. Id. annex(1). Specifically, the parties intended the funds to be used to compensate U.S. and foreign nationals who brought claims related to these attacks through nine identified lawsuits.^[5]

Around the same time, the President certified to Congress his intent to rescind Sudan's designation as a state sponsor of terrorism. See Certification of Rescission of the Determination regarding the Government of Sudan (Oct. 26, 2020). Following the requisite waiting period, the Secretary of State formally rescinded the designation. See Rescission of Determination Regarding Sudan, 85 Fed.Reg. 82,565 (Dec. 8, 2020).

ii. Sudan Claims Resolution Act

Two months after the United States and Sudan signed the CSA, Congress passed the Sudan Claims Resolution Act (“SCRA”). SCRA, Consolidated Appropriations Act of 2021, Pub. L. No. 116-260, tit. XVII, 134 Stat. 3291 (2020). The SCRA stated that it was the “sense of Congress that” “the United States should support Sudan's democratic transition”; “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 “the terrorism-related claims of victims and family members of the September 11, 2001, terrorist attacks must be preserved and protected.” Id. § 1702, 134 Stat, at 3291.

SCRA provided that, if certain conditions were met: Sudan “shall not be subject to the exceptions to immunity from jurisdiction, liens, attachment, and execution under section 1605A . . . of [the FSIA,]” “section 1605A(c) [of the FSIA]. . . 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”; and “any attachment, decree, lien, execution, garnishment, or other judicial process brought against property of Sudan” “shall be void.” Id. § 1704(a)(1)(A)-(C), 134 Stat, at 3292. The Secretary of State was to provide Congress with a certification that the...