Rux V Sudan

Rux v Sudan in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On February 3, 2011, the United States Court of Appeals for the Fourth Circuit affirmed the district court's dismissal of certain claims and dismissed as moot other claims brought against the Republic of Sudan by relatives of U.S. sailors murdered in the attack on the U.S.S. Cole. Rux v. Sudan, 410 Fed.Appx. 581, 2011 WL 327275 (4th Cir. 2011). As discussed in World Encyclopedia of Law 2010 at 366-73, the United States brief filed in the appeals court had urged the court to affirm the district court's dismissal. Also, as discussed in World Encyclopedia of Law 2010 at 372-73, after the plaintiffs in Rux filed a new, related action against Sudan, the U.S. filed a supplemental brief urging the court to dismiss the appeal for lack of jurisdiction. The court's decision of February 3, 2011, excerpted below, affirmed the district court's dismissal of maritime and state law claims and dismissed the constitutional challenge to § 1083(c)(2) of the NDAA as moot.

Developments

This appeal arises from the district court's denial of Appellants' motion for leave to supplement their complaint in an action brought against the Republic of Sudan (“Sudan”) by relatives of the American sailors killed in the October 2000 terrorist bombing of the U.S.S. Cole. On November 3, 2010, we issued an Order for Supplemental Briefing directing parties to address whether any of the issues pending before this Court on appeal are rendered moot by the Appellants' filing of a new, related action pursuant to 28 U.S.C. § 1605A in the Eastern District of Virginia. Having reviewed those submissions, we find that Appellants' constitutional challenge to § 1083(c)(2) of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2008, Pub. L. No. 110-181, 122 Stat. 3, 342-43, Section 1083(a)(1) (codified at 28 U.S.C. § 1605A (Supp. II 2008)), is no longer viable given the filing of their new action. Further, in light of Appellants' argument that their state common law claims have been preempted, we affirm the district court's dismissal of those claims.

Details

I.

A.

The facts giving rise to this action are set forth more fully in the U.S. previous opinion, Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir. 2006) (“Rux I”). We briefly summarize those facts and the procedural history pertinent to the instant order. This action arises out of the October 12, 2000, bombing of the U.S.S. Cole in the Port of Aden, Yemen. Seventeen U.S. Navy sailors were killed in the attack that day, and fifty-nine surviving family members (Appellants here) brought this action against Sudan to recover for damages resulting from the sailors' deaths. Appellants alleged that the Al Qaeda terrorist organization planned and executed the U.S.S. Cole bombing, and that Sudan provided material support to Al Qaeda in the years leading up to the attack.

After initially defaulting, Sudan appeared and sought dismissal on various grounds, including sovereign immunity. We affirmed the district court's determination that Appellants had alleged sufficient jurisdictional facts to bring their case within the Foreign Sovereign Immunities Act (“FSIA”) terrorism exception.). Rux I, 461 F.3d at 474. We declined to exercise pendent appellate jurisdiction and dismissed the remainder of Sudan's appeal. Id. at 476-77. On remand to the district court, Sudan made its final appearance in this case by informing the court it would “not defend or otherwise participate in this proceeding on the merits.”

Appellants asserted claims under the Death on the High Seas Act (“DOHSA”), state law tort claims, and maritime wrongful death claims. …[T]he district court found that DOHSA provided the exclusive remedy for Appellants' claims.…

On July 25, 2007, the district court entered a final judgment, awarding eligible plaintiffs a total of $7,956,344 plus post-judgment interest, under DOHSA. See Rux v. Republic of Sudan, 495 F. Supp. 2d 541, 567-69 (E.D. Va. 2007) (“Rux II”); …While the appeal was pending, Congress amended the FSIA through its passage of the NDAA, which created a new federal right of action for injuries caused by acts of state-sponsored terrorism. See 28 U.S.C. § 1605A. The new right of action created by § 1605A provides for additional remedies not allowed under DOHSA, such as “economic damages, solatium, pain and suffering, and punitive damages.” Id. at 1605A(c).

More about the Issue

While § 1605A allows plaintiffs to invoke the new right of action with regards to certain “pending” cases, the provision is not automatically retroactive. Kirschenbaum v. Islamic Republic of Iran, 572 F. Supp. 2d 200, 203 n.1 (D.D.C. 2008). Section 1083(c) of the NDAA governs the amendment's retroactive application. Pursuant to § 1083(c)(2) (“Prior Actions”), a plaintiff whose action was pending before the courts when the NDAA became law is given sixty days within which to “refile” his suit based upon the new cause of action, provided he meets all the requirements. Under § 1083(c)(3) (“Related Actions”), a plaintiff who had “timely commenced” a “related action” under § 1605(a)(7) may bring a new action “arising out of the same act or incident,” provided it is commenced no later than sixty days after either the enactment of the NDAA or the entry of judgment in the original suit. Simon v. Republic of Iraq, 529 F.3d 1187 (D.C. Cir. 2008), rev'd on other grounds sub nom. Republic of Iraq v. Beaty, 129 S. Ct. 2183 (2009) (interpreting new NDAA provisions).

Before reaching the merits of Appellants' claims, this Court granted Appellants' motion to remand the case to the district court for consideration of whether Appellants could rely on the new right of action under § 1605A. See Rux v. Republic of Sudan, No. 07-1835 (4th Cir. order dated July 14, 2009). While the case was before the district court on remand, Appellants filed a motion for leave to supplement their complaint, pursuant to § 1083(c)(2), in order to add claims for non-pecuniary loss under the new right of action. On December 3, 2009, the district court entered an order denying Appellants' motion. Appellants timely appealed the order, which is the subject of the current appeal.

Rux v Sudan in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): B.

After the government filed its brief with the court, but before oral argument, Appellants filed a new, related action against Sudan under 28 U.S.C. § 1605A(c). See Kumar v. the Republic of Sudan, No. 10-cv-171 (E.D. Va. filed Apr. 15, 2010). The new action was brought by the same fifty-nine plaintiffs who are named in the case sub judice (plus two additional plaintiffs, Avinesh Kumar and Hugh Palmer, who are not parties to the action before this court). Additionally, the new action “seek[s] equivalent relief.” However, in their new action, Appellants do not rely on the conversion provision of § 1083(c)(2). In fact, Appellants expressly disavow any reliance on § 1083(c)(2) as a basis for their suit.…

The case sub judice was argued on October 26, 2010. At argument, the government suggested that this appeal may be moot as a result of Appellants' new action. We ordered supplemental briefing on the issue of mootness, directing the parties to address “whether any or all of the issues pending before this Court are rendered moot by the appellants' filing of [Kumar v. Republic of Sudan] pursuant to 28 U.S.C. § 1605A.”

More about Rux v Sudan

II.

Appellants maintain in their supplemental brief that their constitutional challenge to § 1083(c)(2) continues to present a live controversy. They also argue, for the first time, that their state common law claims have been preempted by § 1605A. Proceeding from that assumption, Appellants reason that the preemption of their state law claims moots their appeal from the district court's dismissal of those claims, and that we are therefore without jurisdiction to entertain them. Moreover, they argue “the district court's opinion is manifestly incorrect” and should be vacated. Appellants' position is untenable on all counts.

Appellants' constitutional claim is premised on the contention that § 1083(c)(2)'s requirements for conversion violate Appellants' equal protection rights “by precluding them from seeking relief pursuant to § 1605A.” Appellants now insist in their new, related action, that they need not rely on § 1083(c)(2) to seek relief pursuant to § 1605A, because they have a valid claim, irrespective of § 1083(c)(2), which they have brought directly under § 1605A.

Developments

Although parties are free to make arguments in the alternative, here Appellants have effectively renounced their earlier position in a manner that requires us to entertain an abstract legal question. …This is not a traditional case of mootness, abandonment, or waiver. Its distinctiveness stems from Appellants' unusual decision to initiate a suit anchored in an expressly contrary position while this matter was pending on appeal. By bringing a new action which they previously claimed was precluded by § 1083(c)(2), and expressly disclaiming reliance on this provision, Appellants have, in effect, caused the mootness of their constitutional challenge to that provision.…

Appellants argue that if this Court finds that the instant appeal has been rendered moot, the district court's opinion should be vacated. The relief of vacatur, however, is not a foregone conclusion—it is an equitable remedy informed by whether parties played a role in causing the mootness. … Under these circumstances, because Appellants by their voluntary actions have caused the mootness, we do not order vacatur of the district court's judgment in this case. … Instead, we simply dismiss Appellants' claim as moot.

Finally, in light of Appellants' argument that their state law claims have been preempted by § 1605A, we assume, without deciding, the preemption of those claims and thus affirm the district court's dismissal of them.

Rux v. Sudan

In relation to the international law practice and Rux v. Sudan in this world legal Encyclopedia, please see the following section:

Privileges, Immunities

About this subject:

Foreign Sovereign Immunities Act

Under this topic, in the Encyclopedia, find out information on:

• Exceptions to immunity
• Acts of terrorism

. Note: there is detailed information and resources, in relation with these topics during the year 2011, covered by the entry, in this law Encyclopedia, about Rux v. Sudan

Resources

See Also

• Privileges
• Immunities
• Foreign Sovereign Immunities
• Exceptions To Immunity
• Acts Of Terrorism