Opati v. Republic of Sudan

Whether, consistent with this Court's decision in Republic of Austria v. Altmann, 541 U.S. 677 (2004), the Foreign Sovereign Immunities Act applies retroactively; thereby permitting recovery of punitive damages under 28 U.S.C. § l605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute

Petitioners are United States employees or contractors killed or injured in the 1998 bombings of U.S. Embassies in Kenya and Tanzania by the terrorist organization Al-Qaeda. Alleging knowing, material support by the Republic of Sudan (Sudan) to Al-Qaeda, Petitioners filed separate suits against the country as a state-sponsor of terrorism. After years of litigation, Sudan was denied motions to vacate judgments against it, although the court declined to enforce punitive damages, stating that the relevant law, 28 U.S.C. §1605A (2008), could not apply retroactively to conduct committed prior to the statute’s enactment. During the course of litigation, the Supreme Court held in Republic of Austria v. Altmann, 541 U.S. 677 (2004), that the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 (1976), permits retroactive application of the statute. The Court reasoned that foreign sovereign immunity questions should be deferred to the “political branches of government as embodied in the statutory text” and found a clear showing of Congressional intent for the FSIA to apply to pre-enactment conduct. Petitioners argue that the D.C. Circuit erred in rejecting the Altmann ruling when it dismissed awards of punitive damages against Sudan. Petitioners maintain that because the Altmann decision expressly stated that the Act “as a whole applies to pre-enactment conduct” the 2008 addition to FSIA regarding punitive damages should control.