Jennifer Clodfelter v. Republic of the Sudan
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 2:10-cv-00171-RGD-TEM. [999134036]. [11-2118]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2118
JENNIFER CLODFELTER, Individually and as Next Friend of
N.C., a minor; JOHN CLODFELTER; GLORIA CLODFELTER; JOSEPH
CLODFELTER; SHARLA COSTELOW, Individually and as the Next
Friend of E.C. and B.C., minors; GEORGE COSTELOW; DOROTHY
COSTELOW; RONALD W. FRANCIS; SANDRA FRANCIS; DAVID FRANCIS;
JAMES FRANCIS; SARAH GUANA ESQUIVEL; LOU GUNN; MONA GUNN;
ANTON J. GUNN; JAMAL GUNN; JASON GUNN; NOVELLA WIGGINS;
DIANE MCDANIELS, Individually and as Next Friend of J.M., a
minor; FREDERICA MCDANIELS-BESS; JESSE NIETO; JAMIE OWENS,
Individually and as the Guardian of the Estate and Next
Friend of I.M.O., a minor; KENYON EMBRY; TERESA SMITH;
LEROY PARLETT; ETTA PARLETT, Individually and as Next
Friend of H.P., a minor; KERA PARLETT MILLER; MATTHEW
PARLETT; KATE BROWN; SEAN WALSH; KEVIN ROY; OLIVIA RUX;
ROGELIO SANTIAGO; SIMEONA SANTIAGO; JACQUELINE SAUNDERS,
Individually and as the Guardian of the Estate and Next
Friend for J.T.S., a minor; ISLEY GAYLE SAUNDERS; GARY
SWENCHONIS, SR.; DEBORAH SWENCHONIS; SHALALA SWENCHONISWOOD; LORIE D. TRIPLETT, Individually and as the Guardian
of the Estate and Next Friend of A.T. and S.R.T., minors;
REED TRIPLETT; SAVANNAH TRIPLETT; FREDDIE TRIPLETT; THEODIS
TRIPLETT; KEVIN TRIPLETT; WAYNE TRIPLETT; THOMAS WIBBERLY;
PATRICIA A. WIBBERLY; TONI WIBBERLY; TIMOTHY PAUL SCEVIOUR,
as Personal Representative of the Estates of Kenneth Eugene
Clodfelter, Richard Costelow, Lakeina Monique Francis,
Timothy Lee Gauna, Cherone Louis Gunn, James Roderick
McDaniels, Marc Ian Nieto, Ronald Scott Owens, Lakiba
Nicole
Palmer;
TIMOTHY
PAUL
SCEVIOUR,
as
Personal
Representative of the Estates of Joshua Langdon Parlett,
Patrick Howard Roy, Kevin Shawn Rux, Ronchester Mananga
Santiago, Timothy Lamont Saunders, Gary Graham Swenchonis,
Jr., Andrew Triplett and Craig Bryan Wibberly,
Plaintiffs - Appellants,
and
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OLLESHA SMITH JEAN; JACK EARL SWENSON; AVINESH KUMAR,
Individually and as the Guardian of the Estate and Next
Friend of C.K., a minor; HUGH M. PALMER,
Plaintiffs,
v.
REPUBLIC OF SUDAN,
Defendant – Appellee,
UNITED STATES OF AMERICA,
Intervenor.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Robert G. Doumar, Senior
District Judge. (2:10-cv-00171-RGD-TEM)
Argued:
May 14, 2013
Decided:
June 20, 2013
Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
Reversed and remanded by published opinion. Judge Duncan wrote
the opinion, in which Judge Agee and Judge Davis joined. Judge
Davis wrote a separate concurring opinion.
ARGUED: Andrew C. Hall, HALL, LAMB AND HALL, P.A., Miami,
Florida, for Appellants. Adam C. Jed, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Intervenor. ON BRIEF: Roarke
Maxwell, HALL, LAMB AND HALL, P.A., Miami, Florida; Kevin E.
Martingayle,
STALLINGS
&
BISCHOFF,
P.C.,
Virginia
Beach,
Virginia; Nelson M. Jones, III, LAW FIRM OF NELSON M. JONES,
III, Houston, Texas; James Cooper-Hill, LAW OFFICE OF JAMES
COOPER-HILL, Rockport, Texas, for Appellants. Neil H. MacBride,
United States Attorney, Alexandria, Virginia; Stuart F. Delery,
Acting Assistant Attorney General, Mark B. Stern, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor.
2
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DUNCAN, Circuit Judge:
After
fifty-nine
the
bombing
family
of
the
members
of
U.S.S.
the
Cole
victims
in
October
(the
2000,
“plaintiffs”)
filed suit against the Republic of Sudan (“Sudan”) in 2004.
In
2007, the district court found Sudan liable under the Death on
the High Seas Act (the “DOHSA”), and ordered it to pay damages.
When the plaintiffs, joined by four others not party to the 2004
complaint,
commenced
a
new
suit
against
Sudan
in
April
2010
invoking a federal cause of action under the Foreign Sovereign
Immunities Act (the “FSIA”), the district court concluded that
the previous judgment under the DOHSA precluded an action under
the FSIA.
For the reasons that follow, we reverse.
I.
This appeal is the fourth time the plaintiffs have appeared
before us.
the
The three previous instances were in connection with
plaintiffs’
briefly
setting
action
out
in
the
Rux
v.
Republic
underlying
facts,
of
we
Sudan.
describe
procedural history of Rux and this case in greater detail.
3
After
the
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A.
On October 12, 2000, the U.S.S. Cole, a Navy Destroyer,
entered the Port of Aden in Yemen to refuel. 1
two
males
approached
the
Navy
Vessel
in
a
As it refueled,
small
motorboat.
Shortly thereafter, the small boat exploded, killing seventeen
Navy sailors and injuring forty-two others.
This attack was carried out by operatives from Al Qaeda, a
worldwide terrorist network then led by Osama Bin Laden.
During
much of the 1990s, Bin Laden and other Al Qaeda members resided
in Sudan, which provided them with the support, guidance, and
resources necessary to perpetrate the attack on the U.S.S. Cole.
B.
Although
instant
case
the
in
plaintiffs
April
2010,
filed
the
their
complaint
in
relevant
procedural
history
begins when they first filed suit against Sudan in 2004.
the
To
overcome the immunity typically accorded a foreign country in
U.S.
courts
under
the
FSIA,
the
plaintiffs
invoked
statute’s exception for state sponsors of terrorism.
1
that
See 28
These facts are drawn from the district court’s
comprehensive discussion of the October 2000 attack on the
U.S.S. Cole. See Rux v. Republic of Sudan, 495 F. Supp. 2d 541,
544-54 (E.D. Va. 2007).
4
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U.S.C. § 1605(a)(7). 2
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The United States Department of State had
designated Sudan a “state sponsor of terrorism” in August 1993.
See Determination Sudan, 58 Fed. Reg. 52,523 (Oct. 8, 1993).
Section 1605(a)(7) of the FSIA operated to confer subject-matter
jurisdiction over Sudan by stripping its immunity, but did not
provide a federal cause of action.
Cicippio-Puleo v. Islamic
Republic of Iran, 353 F.3d 1024, 1033-36 (D.C. Cir. 2004). 3
The
plaintiffs therefore asserted wrongful death claims under the
DOHSA, 46 U.S.C. §§ 30301 et seq., and state law claims for
intentional
infliction
of
emotional
distress
and
maritime
wrongful death.
Sudan moved to dismiss the 2004 complaint on jurisdictional
grounds.
The
affirmed.
See Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir.
2006).
district
court
denied
Sudan’s
motion,
and
we
Sudan then informed the district court by letter that it
would not participate in the merits of the case.
2
Congress repealed this provision in 2008 and replaced it
with 28 U.S.C. § 1605A.
We explain the relevant differences
between § 1605(a)(7) and § 1605A below.
3
Before the D.C. Circuit’s ruling in Cicippio-Puleo, a
number of district courts had interpreted § 1605(a)(7) as both
stripping a foreign state’s immunity and providing a substantive
cause of action. Filing their action after Cicippio-Puleo, the
plaintiffs only invoked § 1605(a)(7) to strip Sudan’s immunity
from suit. As we explain below, Congress effectively overturned
Cicippio-Puleo by creating a federal cause of action under the
FSIA in 2008 through the enactment of § 1605A.
5
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The
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plaintiffs
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subsequently
moved
in
district
court
for
entry of default and default judgment against Sudan, which the
FSIA permits only where a plaintiff “establishes his claim or
right to relief by evidence satisfactory to the court.”
U.S.C. § 1608(e).
district
court
28
Following a two-day trial in March 2007, the
concluded
the
plaintiffs
had
established
sufficient evidence to warrant entry of default judgment for
wrongful death under the DOHSA.
By contrast, the district court
dismissed for failure to state a claim the plaintiffs’ state law
claims
for
intentional
infliction
of
emotional
distress
and
maritime wrongful death on the basis that the DOHSA preempted
those
claims.
plaintiff’s
The
pecuniary
district
loss
as
court
then
required
by
calculated
the
DOHSA,
each
see
46
U.S.C. § 30303 (“The recovery in an action under this chapter
shall be a fair compensation for the pecuniary loss sustained by
the individuals for whose benefit the action is brought.”), and
ordered
Sudan
to
pay
$7,956,344
in
compensatory
damages
to
eligible plaintiffs.
The plaintiffs appealed the district court’s dismissal of
their state law claims.
While this appeal was pending, Congress
passed the National Defense Authorization Act for Fiscal Year
2008
(the
became
“NDAA”),
effective
on
Pub.
L.
No.
110-181,
January
28,
2008.
122
The
Stat.
NDAA
which
potentially
affected the plaintiffs’ case in two significant ways.
6
3,
First, §
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1083(a) of the NDAA repealed the FSIA provision governing state
sponsors of terrorism, § 1605(a)(7), and replaced it with a new
provision:
28
U.S.C.
§
1605A.
While
§
1605A
retained
the
immunity-stripping function of the previous statutory provision,
it explicitly provided for a federal private right of action and
allowed plaintiffs to seek “economic damages, solatium, pain and
suffering, and punitive damages” for certain torts committed by
foreign states. 4
The
second
§ 1605A(c).
way
the
NDAA
potentially
affected
the
plaintiffs’ case was through a detailed provision governing how
and under what circumstances § 1605A would apply to pending and
decided cases.
See NDAA § 1083(c).
Where a plaintiff, in
bringing a “prior action,” had relied on § 1605(a)(7) as the
source of a cause of action, and that action had been “adversely
affected on the grounds that [§ 1605(a)(7)] fail[ed] to create a
cause of action against the [foreign] state,” that plaintiff
could move the district court to have the case treated as though
it
had
been
1083(c)(2).
originally
Section
filed
under
1083(c)(2)(B)
4
§
1605A.
waived
See
defenses
NDAA
of
§
res
Specifically, Congress created a cause of action “for
personal injury or death that was caused by an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking, or the
provision of material support or resources” if committed “by an
official, employee, or agent of [a] foreign state . . . .”
§
1605A(a).
7
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judicata
and
Finally, the
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collateral
NDAA
also
Pg: 8 of 31
estoppel
permitted
for
a
any
“prior
plaintiff
actions.”
who
had
timely
commenced a suit under § 1605(a)(7) to bring a “related action”
under § 1605A so long as the plaintiff commenced the related
action
no
judgment
more
in
enactment.
the
than
sixty
original
days
action
after
or
the
either
date
the
of
entry
the
of
NDAA’s
NDAA § 1083(c)(3).
On the plaintiffs’ motion, we remanded Rux to the district
court to determine whether the newly created private right of
action under § 1605A of the FSIA took precedence over the DOHSA
for terrorism-related deaths occurring on the high seas.
At the
district court, the plaintiffs moved under NDAA § 1083(c)(2)(A)
to amend their complaint to add a cause of action under the
newly enacted § 1605A.
Noting that the plaintiffs had filed
their complaint after the D.C. Circuit held in Cicippio-Puleo
that § 1605(a)(7) did not create a private right of action, the
district court concluded that plaintiffs had not relied upon §
1605(a)(7) as creating a substantive cause of action.
See Rux
v. Republic of Sudan, 672 F. Supp. 2d 726, 734-35 (E.D. Va.
2009).
It
therefore
denied
plaintiffs’
motion
to
amend,
answering our inquiry--whether § 1605A trumped the DOHSA for
terrorism-related deaths at sea--in the negative.
The plaintiffs again appealed.
8
Id. at 738.
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After the plaintiffs and the government, which intervened
under
28
U.S.C.
§
517,
filed
their
briefs,
but
before
oral
argument, the plaintiffs, joined by several others, filed a new
complaint in the case now before us.
See Kumar et al. v. The
Republic of Sudan, No. 10-cv-171 (E.D. Va. filed Apr. 15, 2010).
In light of the new filing and the contrary positions taken by
the
plaintiffs,
we
dismissed
the
plaintiffs’
appeal
of
the
district court’s denial of their motion to amend under NDAA §
1083(c)(2) as moot, and affirmed the district court’s dismissal
of the state law claims. 5
See Rux v. Republic of Sudan, 410 F.
App’x 581, 586-87 (4th Cir. 2011).
In a footnote, we made clear
that we were “proceeding under the assumption that the district
court will give full and fair consideration to [the plaintiffs’]
arguments regarding the existence of a live controversy in their
new, related action filed directly under § 1605A . . . and will
exercise an appropriate measure of restraint with regards to the
well-established principle of constitutional avoidance.”
Id. at
586 n.8.
5
Considering that the plaintiffs argued that § 1605A
preempted their state law claims, we assumed without deciding
the preemption of those state law claims and affirmed the
district court’s dismissal on that basis.
9
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C.
This extended background places the current case and the
district
court’s
complaint
in
decision
Kumar
in
Sudan
v.
below
the
proper
listed
the
context.
same
The
fifty-nine
plaintiffs from Rux and added four others, Avinesh Kumar, Hugh
M.
Palmer,
Jack
Earl
Swenson,
and
Ollesha
(collectively, the “Kumar plaintiffs”).
seventeen
With
counts
Sudan
of
again
wrongful
failing
to
Smith
Jean
The complaint alleged
death
under
enter
an
28
U.S.C.
appearance,
§
1605A.
the
Kumar
plaintiffs moved in July 2010 for default judgment under the
FSIA.
The district court set a hearing on the Kumar plaintiffs’
motion, advising them in an order that it intended to address
five
issues:
plaintiffs’
whether
claims
it
had
were
jurisdiction;
barred
by
res
whether
judicata;
the
Kumar
whether
the
Kumar plaintiffs’ claims satisfied the statute of limitations
under
NDAA
§
1083(c)(3);
whether
the
waiver
of
res
judicata
under NDAA § 1083(c)(2)(B) was constitutional as applied to a
foreign
sovereign;
and
whether
NDAA
§
1083(c)
Constitution’s separation of powers doctrine.
After
district
considering
court
briefs
withheld
and
ruling
the
the
J.A. 86.
conducting
on
violated
a
motion
hearing,
for
the
default
judgment with respect to the four new plaintiffs, and denied it
as to the fifty-nine plaintiffs for whom it had entered judgment
in Rux.
The district court’s analysis first addressed whether
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to construe the complaint in Kumar as a “related action” under
NDAA § 1083(c)(3) or a new action filed directly under 28 U.S.C.
§ 1605A.
Reasoning that the plaintiffs had failed to act within
sixty days of either the passage of the NDAA in January 2008 or
the
date
of
entry
of
judgment
in
Rux,
the
district
court
concluded that they had not commenced a related action under
NDAA § 1083(c)(3).
J.A. 166.
The district court next analyzed whether the doctrine of
res
judicata
apply
the
barred
the
plaintiffs’
“transactional”
test,
claims.
which
Noting
considers
that
whether
we
“the
claim presented in the new litigation ‘arises out of the same
transaction or series of transactions as the claim resolved in
the prior judgment,’” id. (quoting Pittson Co. v. United States,
199 F.3d 694, 704 (4th Cir. 1999)), the district court found
there
was
“no
question”
that
Kumar
arose
out
of
the
same
transaction as that at issue in Rux, id. at 167.
In concluding that res judicata precluded the plaintiffs’
claims, the district court distinguished and disagreed with In
re Islamic Republic of Iran Terrorism Litigation, 659 F. Supp.
2d
31,
84-86
(D.D.C.
2009),
which
considered,
inter
alia,
whether to give res judicata effect to prior actions under §
1605(a)(7).
It distinguished Iran Terrorism Litigation on the
ground that the plaintiffs here could have brought their claims
as a related action under NDAA § 1083(c)(3), but chose not to.
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The district court also disagreed with the statement in Iran
Terrorism Litigation that res judicata “cannot be applied where,
as
here,
the
claims
now
being
asserted
raised in the prior litigation.”
general
rule
effects
of
although
that
res
some
“changes
judicata,”
Id. at 84.
in
the
law
the
an
do
district
recognize
courts
could
not
have
been
Instead, noting a
not
court
overcome
reasoned
exception
where
the
that
the
legislature creates a new statutory cause of action, “the weight
of these precedents” was “doubtful.”
J.A. 168.
Moving beyond its res judicata analysis, the district court
maintained that permitting the plaintiffs to bring a new cause
of action would in any event run afoul of the constitutional
principles of finality and separation of powers.
See Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995) (holding that
Congress may not deprive “judicial judgments of the conclusive
effect that they had when they were announced”).
Observing that
the plaintiffs here had already “obtained a substantial prior
judgment”
and
Congressional
now
sought
policy,”
the
Congress’s
enactment
of
deliberate
effort
change
already
been
fully
to
§
decided
“further
remedies
district
1605A
the
12
court
through
outcome
before
an
.
in
.
via
characterized
the
NDAA
cases
Article
.
III
as
that
“a
have
tribunal.”
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J.A. 168.
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The district court therefore denied the plaintiffs’
motion for default judgment. 6
The plaintiffs timely appealed.
II.
The plaintiffs press two arguments on appeal.
First, they
contend that res judicata does not preclude them from asserting
statutory causes of action under 28 U.S.C. § 1605A.
In making
this argument, the plaintiffs take issue both with the district
court’s sua sponte consideration of the res judicata defense,
and its ultimate decision to apply that doctrine to bar their
claims.
As part of this argument, they maintain that NDAA §
1083(c) does not violate the separation of powers by permitting
an unconstitutional reopening of final judgments.
Second, the
plaintiffs contend that the district court erred by applying the
limitation period for a related action under NDAA § 1083(c)(3)
to their claims, which were filed directly under 28 U.S.C. §
1605A.
Although Sudan has not appeared in this case, 7 the United
States government has accepted our invitation to intervene under
6
As noted above, the district court withheld ruling as to
the four new plaintiffs, including the lead plaintiff Avinesh
Kumar.
On appeal, therefore, the case caption begins with
plaintiff Jennifer Clodfelter.
For the sake of brevity and
clarity, we refer to the case now before us as the Kumar case.
13
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28 U.S.C. § 2403.
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It agrees with the plaintiffs’ position that
the district court erred to the extent its ruling relied on a
conclusion that the statutory provisions at issue here require
an unconstitutional reopening of final judgments.
hand,
the
government
abuse
its
discretion
argues
by
that
the
considering
district
sua
judicata precluded the plaintiffs’ claims.
On the other
court
sponte
did
not
whether
res
The government takes
no position on the merits of the district court’s res judicata
analysis.
We begin with the plaintiffs’ argument that the district
court mistakenly applied the limitations period under NDAA §
1083(c).
In addressing this argument, we also explain why we do
not reach the constitutional question.
We then turn to the
issue of res judicata.
A.
A
provides
brief
summary
necessary
of
the
background
relevant
for
the
statutory
framework
plaintiffs’
argument.
When Congress amended the FSIA to create a federal private cause
of action for terrorism-related injuries and deaths, it chose as
its legislative vehicle the National Defense Authorization Act
7
Unlike in Rux, where it contested subject-matter
jurisdiction, Sudan has not appeared during any phase of the
Kumar case.
14
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for Fiscal Year 2008.
Pg: 15 of 31
In NDAA § 1083(a), Congress enacted that
cause of action as 28 U.S.C. § 1605A, which we have already
discussed.
In
conforming
NDAA
amendments,
§
1083(b),
including
Congress
the
passed
repeal
1605(a)(7), the predecessor to § 1605A.
of
28
various
U.S.C.
§
Finally, NDAA § 1083(c)
describes in detail under what circumstances to apply the newlyenacted
cause
of
action
retroactively
to
pending
or
decided
cases.
Contrary to the plaintiffs’ suggestion, the district court
did not dismiss their claims for failure to comply with the
statute of limitations under NDAA § 1083(c)(3).
district
court
constituted
a
considered
“related
whether
action”
the
under
Instead, the
plaintiffs’
NDAA
§
claims
1083(c)(3),
ultimately concluding that the plaintiffs, by failing to comply
with the time limitations imposed by that provision, could not
bring their new claim under NDAA § 1083(c).
This conclusion--
that the plaintiffs’ complaint in Kumar v. Sudan did not arise
under NDAA § 1083(c)(3) as a related action but instead arose
directly under 28 U.S.C. § 1605A--accorded with the position the
plaintiffs took in their brief to the district court below, see
J.A. 98 (“Whether the Plaintiffs’ claims satisfy the statute of
limitations in § 1083(c)(3) is not at issue in the instant case
and a moot question.
The only statute of limitations applicable
to
is
the
instant
case
the
ten
15
year
statute
of
limitations
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stated
Doc: 39
in
28
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U.S.C.
§
Pg: 16 of 31
1605A(b).”),
and
repeat
here,
see
Appellant’s Br. at 31. 8
It follows, the plaintiffs assert, that because they filed
a
new
action
directly
under
28
U.S.C.
§
1605A,
the
various
provisions of NDAA § 1083(c) governing how to apply § 1605A
retroactively
to
pending
inapplicable to this case.
and
previous
We agree.
actions
are
simply
By its express terms,
NDAA § 1083(c) applies to “pending cases” at the time of its
enactment in January 2008, and this case--Kumar v. Sudan, filed
in 2010--was not pending at that time.
Moreover, § 1083(c) does
not compel a plaintiff who had originally filed a case under §
1605(a)(7) to convert it to a case under § 1605A: “If an action
. . . has been timely commenced under section 1605(a)(7) . . .
any other action arising out of the same act or incident may be
brought
under
added).
section
1605A.”
NDAA
§
1083(c)(3)
(emphasis
Instead, this provision enables a plaintiff who timely
commenced an action under now-repealed § 1605(a)(7) to bring
another action under § 1605A even if the latter action would not
otherwise
satisfy
the
limitations
8
set
out
in
28
U.S.C.
§
The plaintiffs contend they satisfied the applicable
statute of limitations under § 1605A(b)(2) by filing their
complaint in April 2010, which was no later than ten years after
the October 12, 2000 bombing of the U.S.S. Cole.
Although the
district court did not address this question, the plaintiffs’
argument appears to be correct.
16
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1605A(b).
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Pg: 17 of 31
The plaintiffs in Kumar had no reason to invoke NDAA
§ 1083(c)(3) because their action satisfied the ten-year statute
of limitations in § 1605A.
In sum, the various provisions of §
1083(c) are inapplicable here.
Because NDAA § 1083(c) does not apply to this case, we need
not address whether that provision’s instructions for how to
apply § 1605A retroactively violate the separation of powers
doctrine
under
Spendthrift Farm.
at
issue
the
Supreme
Court’s
decision
in
Plaut
v.
The district court’s conclusion that the law
unconstitutionally
“permit[ed]
plaintiffs
to
reopen
prior judgments,” J.A. 168, can only apply to the provisions in
NDAA § 1083(c); nothing in 28 U.S.C. § 1605A can be construed to
permit
the
reopening
of
final
judgments. 9
Mindful
that
we
“refrain from passing upon the constitutionality of an act of
Congress unless obliged to do so,” Ashwander v. Tennessee Valley
Auth.,
297
U.S.
288,
341
(1936)
(Brandeis,
J.,
concurring)
(citation omitted), we decline to consider the constitutionality
of NDAA § 1083 because it does not apply on the facts of this
case.
9
As the government notes, § 1605A instead simply “creates a
federal cause of action that did not previously exist, and . . .
provides remedies . . . that were not available under the
[DOHSA].” Gov’t Br. at 16.
17
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B.
We next consider whether the doctrine of res judicata 10 bars
the plaintiffs’ claims in this case.
The plaintiffs posit two
errors in the district court’s analysis.
threshold
considered
matter
sua
that
sponte
the
the
district
res
First, they argue as a
court
judicata
should
affirmative
not
have
defense.
Even if doing so was not error, the plaintiffs contend, res
judicata does not apply here because Congress in § 1605A created
a
new
statutory
complaint in 2004.
cause
of
action
after
they
had
filed
their
We consider each in turn.
1.
Before
deciding
whether
the
district
court
erred
by
considering the issue of res judicata, we must determine the
10
The term “res judicata” is often used to refer to both
“claim
preclusion,”
where
a
previous
judgment
forecloses
litigation on the basis that it was decided in the previous
case, and “issue preclusion,” which “refers to the effect of a
judgment in foreclosing relitigation of a matter that has been
litigated and decided.” Migra v. Warren City Sch. Dist. Bd. of
Educ., 465 U.S. 75, 77 n.1 (1984); see also Charles Alan Wright
et al., 18 Federal Practice & Procedure § 4402 (2d ed. 2002)
(“Although the time has not yet come when courts can be forced
into a single vocabulary, substantial progress has been made
toward a convention that the broad ‘res judicata’ phrase refers
to
the
distinctive
effects
of
a
judgment
separately
characterized as ‘claim preclusion’ and ‘issue preclusion.’”).
We use the more familiar but less precise “res judicata”
for several reasons.
The parties below and in their briefings
referred only to res judicata, as did the district court.
Congress also used this older terminology when it enacted 28
U.S.C. § 1605A through the NDAA. See NDAA § 1083(c)(2)(B).
18
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proper standard by which to review its sua sponte action.
The
plaintiffs advocate for de novo review in their brief, and the
government’s position on the point is unclear.
The government’s
brief first suggests that we review the district court’s action
de novo, see Gov’t Br. at 14, but then argues that when the
district court considered res judicata sua sponte, it “did not
abuse its discretion,” id. at 17, and similarly “acted within
its discretion,” id. at 19.
standard
of
review
it
would
When asked at oral argument which
have
us
apply,
counsel
for
government seemed to advocate for abuse of discretion. 11
we
have
characterized
a
district
court’s
sua
the
While
sponte
consideration of a statute of limitations affirmative defense as
a question of law befitting de novo review, see Eriline Co. S.A.
v. Johnson, 440 F.3d 648, 653 (4th Cir. 2006), we have not
squarely
addressed
the
appropriate
standard
of
review
for
a
court’s sua sponte consideration of res judicata.
Although
no
sister
circuit
appears
to
have
directly
addressed this issue either, courts have consistently described
a district court’s sua sponte consideration of a res judicata
11
Counsel for the government acknowledged that courts of
appeal do not always distinguish a district court’s decision to
consider res judicata sua sponte from its analysis of the merits
of the res judicata doctrine, which latter inquiry is reviewed
de novo.
When an appellate court considers these questions
together, it is not necessarily apparent under which standard it
decides the issue of sua sponte consideration.
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defense as permissible but not required.
See, e.g., Scherer v.
Equitable Life Assurance Soc’y, 347 F.3d 394, 398 n.4 (2d Cir.
2003)(“[A] court is free to raise that defense [of res judicata]
sua sponte, even if the parties have seemingly waived it.
There
is, however, no obligation on the part of a court to act sua
sponte and interpose the defense if it has not been raised.”);
Holloway Constr. Co. v. U.S. Dep’t of Labor, 891 F.2d 1211, 1212
(6th Cir. 1989) (“[A] district court may invoke the doctrine of
res judicata in the interests of, inter alia, the promotion of
judicial economy.” (emphasis added)); McClain v. Apodaca, 793
F.2d 1031, 1033 (9th Cir. 1986); Boone v. Kurtz, 617 F.2d 435,
436 (5th Cir. 1980).
Similarly, the Supreme Court’s holding in
Arizona v. California, 530 U.S. 392, 412 (2000), that sua sponte
consideration of a preclusion defense “might be appropriate in
special
judgment.
circumstances,”
suggests
an
inherently
discretionary
This language indicates that whether to consider res
judicata sua sponte amounts to a situation where “there is no
single right or wrong answer.”
Harry T. Edwards & Linda A.
Elliot, Federal Standards of Review Ch. I.E (2007).
Abuse of
discretion is typically the preferred standard of review in such
circumstances.
Id.
Two other considerations militate in favor of reviewing the
district court’s action here for abuse of discretion.
First,
the extent and nature of the previous proceedings will inform a
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district court’s decision to raise a preclusion defense on its
own initiative, and a district court judge is better positioned
than an appellate court to appreciate the particulars of the
prior case.
Second, our case law recognizes res judicata as a
special category of affirmative defense: one which implicates
“important institutional interests of the courts” in addition to
the interests of the litigants.
Eriline, 440 F.3d at 654.
As
such, it is appropriate to distinguish the discretion vested in
a district court’s sua sponte consideration of res judicata from
the de novo review we apply to a district court’s sua sponte
consideration of a statute of limitations affirmative defense.
Id. at 653.
We therefore review the district court’s sua sponte
decision to consider whether res judicata bars a plaintiff’s
claims for abuse of discretion.
2.
The plaintiffs correctly note that as a general matter, a
district court should not sua sponte consider an affirmative
defense
that
the
defendant
Eriline, 440 F.3d at 653-54.
See Fed. R. Civ. P. 8(c).
has
the
burden
of
raising.
See
Res judicata is such a defense.
In the plaintiffs’ view, Sudan’s
failure to raise the res judicata affirmative defense should end
our consideration.
The
government
disagrees.
It
points
to
Arizona
v.
California, in which the Supreme Court indicated that a court’s
21
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sua
Doc: 39
sponte
Filed: 06/20/2013
consideration
appropriate
in
special
of
a
Pg: 22 of 31
preclusion
circumstances.”
defense
530
“might
U.S.
at
be
412.
Following Arizona, we have permitted sua sponte consideration of
affirmative defenses where the proceedings “implicate important
judicial and public concerns not present in the circumstances of
ordinary civil litigation,” and suggested that res judicata is
among
the
affirmative
consideration.
defenses
that
may
Eriline, 440 F.3d at 656.
warrant
sua
sponte
The government argues
that this case presents a “special circumstance” under Arizona.
We agree.
Comity in the face of an absent foreign sovereign presents
a special circumstance permitting sua sponte consideration of a
res
judicata
defense.
appeared in this case.
Sudan,
a
foreign
sovereign,
has
not
Moreover, unlike the party requesting
the Supreme Court to engage in sua sponte consideration of res
judicata in Arizona, Sudan has had neither “ample opportunity”
nor “cause” to raise a res judicata defense.
U.S. at 413.
See Arizona, 530
Just as “considerations of comity, federalism, and
judicial efficiency” militated in favor of a district court’s
sua sponte consideration of a statute of limitations affirmative
defense in Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002),
so here do the reciprocal foreign litigation interests of the
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United States and a concern for judicial efficiency support the
district court’s sua sponte consideration of res judicata. 12
Two additional reasons reinforce this conclusion.
the
district
court
here
has
expended
significant
First,
judicial
resources on determining whether the plaintiffs are entitled to
relief under the Foreign Sovereign Immunities Act.
judicial
resources
question,
preclusion
bar
party
been
spent
courts
trial
have
must
be
sua
presentation
sponte,
so
basic
Arizona, 530 U.S. at 412-13.
the
district
court
had
not
the
cautious
thereby
to
on
eroding
our
system
“Where no
resolution
of
a
raising
a
principle
of
about
the
of
adjudication.”
The plaintiffs argue that because
until
the
Kumar
case
adjudicated
their claims under § 1605A, it has not expended any judicial
resources.
district
But
court
this
has
view
spent
on
ignores
the
the
substantial
“resolution
of
a
time
the
question,”
namely, the plaintiffs’ right to relief from Sudan under the
FSIA for the terrorist attack on the U.S.S. Cole.
Given that
the district court judge has presided over a trial, conducted
numerous
hearings,
and
issued
12
at
least
three
opinions
over
We note that the comity due an absent foreign sovereign
applies regardless of the nature of the allegations against that
sovereign or whether they are ultimately proven.
To hold
otherwise would require a district court to assess the merits of
the res judicata analysis, and, by extension, the merits of a
plaintiff’s claims when weighing the threshold question of
whether it ought to consider res judicata sua sponte.
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almost a decade of trying to resolve this question, the district
court’s significant expenditure of judicial resources justified
its sua sponte consideration of the res judicata affirmative
defense.
Second,
the
FSIA’s
requirement
that
a
plaintiff
seeking
default judgment “establish[] his claim or right to relief by
evidence satisfactory to the court,” 28 U.S.C. § 1608(e), also
weighs in favor of the district court’s sua sponte consideration
of res judicata in this case.
sponte
consideration
of
As we recognized in Eriline, sua
an
affirmative
defense
can
be
appropriate where a district court is “charged with the unusual
duty of independently screening initial filings, and dismissing
those
actions
that
plainly
lack
merit.”
440
F.3d
at
656.
Although § 1608(e) does not require a district court to tick
through various affirmative defenses simply because an absent
sovereign has failed to raise them, its command that a district
court consider whether the plaintiff has met its evidentiary
burden suggests that a district court may properly take a close
look at a plaintiff’s case.
abuse
its
considered
discretion
sua
when,
sponte
Here, the district court did not
as
part
whether
plaintiffs’ claims.
24
of
res
this
close
judicata
look,
barred
it
the
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3.
We turn finally to the district court’s application of the
res judicata doctrine, which we review de novo.
United
States,
application
of
369
res
F.3d
345,
judicata
354
turns
(4th
on
the
Cir.
Pueschel v.
2004).
existence
of
The
three
factors: “(1) a final judgment on the merits in a prior suit;
(2) an identity of the cause of action in both the earlier and
the later suit; and (3) an identity of parties or their privies
in the two suits.”
Id. at 354-55.
There is no question either
that the plaintiffs’ earlier action in Rux culminated in a final
judgment or that the parties to each suit are identical. 13
focus here is therefore on the second prong.
plaintiffs’
argument
is
that
because
The
The thrust of the
they
could
not
have
asserted a claim under 28 U.S.C § 1605A when they filed their
complaint in 2004, no “identity of the cause action” existed as
between the two suits.
As
the
“transactional”
district
approach
court
when
recognized,
considering
we
follow
whether
the
causes
of
action are identical: “As long as the second suit ‘arises out of
the
same
transaction
or
series
13
of
transactions
as
the
claim
As described above, there were four new plaintiffs on the
complaint in Kumar v. Sudan, but the district court did not deny
the motion for default judgment as to them, and they are not now
before us.
25
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resolved
by
Filed: 06/20/2013
the
prior
Pg: 26 of 31
judgment,’
the
first
suit
will
have
preclusive effect.”
Ohio Valley Envtl. Coal. v. Aracoma Coal
Co.,
210
556
Under
F.3d
this
“newly
177,
transactional
articulated
underlying
(4th
earlier action.
2009)
approach,
claim[]”
transaction
Cir.
and
if
res
it
could
(citation
judicata
is
based
have
been
omitted).
will
on
bar
the
brought
a
same
in
the
See Laurel Sand & Gravel, Inc. v. Wilson, 519
F.3d 156, 162 (4th Cir. 2008).
Because the underlying transaction giving rise to both Rux
and Kumar--the
resulting
terrorist
deaths--is
bombing
of
unquestionably
the
U.S.S.
the
Cole
same,
we
and
the
consider
whether the plaintiffs could have brought their § 1605A claim in
Rux,
the
earlier
question.
action.
This
proves
to
be
a
challenging
In the district court’s view, the plaintiffs’ failure
to avail themselves of the avenue provided by Congress in NDAA §
1083(c)(3) to timely file a “related action” at some point after
January
assert
2008
a
means
claim
the
under
plaintiffs
§
1605A
in
could
Rux.
have,
The
but
did
not,
plaintiffs,
by
contrast, argue that the absence of a federal cause of action at
the time they filed their complaint in 2004 should render res
judicata inapplicable.
Army
Corps
of
Eng’rs,
See Ripplin Shoals Land Co., LLC v. U.S.
440
F.3d
1038,
1042
(8th
Cir.
2006)
(“[R]es judicata does not apply to claims that did not exist
when the first suit was filed.” (emphasis added)).
26
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Ultimately,
Filed: 06/20/2013
we
do
not
Pg: 27 of 31
decide
whether
the
relevant
time
period for a newly articulated claim to satisfy the exception to
res judicata is the point at which the complaint is filed in the
previous case--the plaintiff’s position--or the entire pendency
of
that
case--the
district
court’s
view--because
we
conclude
that res judicata should not apply here for three independent
reasons.
First, unlike an intervening change in case law, which
almost never warrants an exception to the application of res
judicata, a change in statutory law can present the basis for a
new action.
See Alvear-Velez v. Mukasey, 540 F.3d 672, 678 (7th
Cir. 2008).
Although “passage of a new statute will not per se
create a grounds for a new claim,” “on rare occasions, when a
new statute provides an independent basis for a claim for relief
which did not exist at the time of the prior action, a second
action based on the new statute may be justified.”
Federal Practice - Civil § 131.22 (2013).
may arise
where
“the
subject
of
the
substantial public policy concerns.”
Such “rare occasions”
prior
Id.
Moore’s
action
involve[s]
Here, both the change
in statutory law between the plaintiffs’ initial complaint in
Rux and their complaint in Kumar and the substantial foreign and
domestic
policy
concerns
at
issue
in
the
kinds
of
terrorism
cases brought under § 1605A justify an exception to the res
judicata doctrine.
27
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Second,
doctrine,
Filed: 06/20/2013
“to
litigation,
of
one
Pg: 28 of 31
values”
the
free
with
“core
people
all
its
from
costs
the
to
of
the
res
uncertain
emotional
judicata
prospect
peace
and
of
the
ordering of future affairs,” Wright et al., supra at § 4403,
would be ill served by barring the plaintiffs’ claims in the
Kumar
case.
achieving
While
settled
domestic civil
th[e]
sui
Chief
expectations
generis
Judge
preclusion
litigation,
foreign states.”
As
the
it
context
doctrine’s
certainly
is
“not
involving
applies
as
easily
civil
purpose
in
ordinary
realized
actions
of
in
against
Iran Terrorism Litig., 659 F. Supp. 2d at 85.
Lamberth
observed
with
respect
to
Iran,
it
“strains credulity” to suppose that a foreign state sponsor of
terrorism “has any reliance interests or settled expectations
with respect to prior civil actions litigated against it under §
1605(a)(7),” particularly where--as here--that foreign sovereign
has failed to appear in the terrorism action filed against it.
Id.
Finally, an interpretation that reads preclusion defenses
into § 1605A and effectively shields state sponsors of terrorism
would undermine the congressional purpose for enacting § 1605A
in
the
first
place. 14
Cf.
Alvear-Velez,
14
540
F.3d
at
680
Although, as we concluded in Part II.A supra, NDAA §
1083(c) does not apply to this case, it is nonetheless relevant
that Congress in § 1083(c)(2)(B) specifically waived res
(Continued)
28
Appeal: 11-2118
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(refusing
to
inconsistent
frustrate”
Filed: 06/20/2013
apply
with
Pg: 29 of 31
res
judicata
where
[the]
statutory
scheme
congressional
policy
to
do
and
so
“would
therefore
decisions).
be
would
Moreover,
a
determination that res judicata precluded the plaintiffs’ claims
under § 1605A would be inconsistent with the statutory canon
that “remedial statutes should be liberally construed.”
Peyton
v. Rowe, 391 U.S. 54, 65 (1968); Scarborough v. Atl. Coast Line
R.
Ro.
Co.,
178
F.2d
253,
258
(4th
Cir.
1949)
(“Remedial
statutes should be liberally construed and should be interpreted
(when
that
is
possible)
in
a
manner
attempted evasions by wrongdoers.”).
tending
to
discourage
Although determining what
constitutes a “remedial statute” or a “liberal construction” may
prove challenging in some cases, see Antonin Scalia & Brian A.
Garner, Reading Law: The Interpretation of Legal Texts 364-65
(2012), this is not one of them.
It is evident that Congress
enacted § 1605A to address the inability of victims of terrorism
to bring suit, under federal law, against wrongdoers, namely,
judicata and collateral estoppel defenses.
Notwithstanding the
cumbersome wording and placement of this waiver within the NDAA,
we agree that it is “best understood as nothing more than a poor
choice of statutory language that is merely intended to
reinforce the understanding that Congress and the President have
accomplished a fundamental change in public policy with respect
to actions against state sponsors of terrorism.” Iran Terrorism
Litig., 659 F. Supp. 2d at 86.
29
Appeal: 11-2118
the
Doc: 39
foreign
Filed: 06/20/2013
states
deemed
Pg: 30 of 31
responsible
for
perpetrating
or
otherwise supporting acts of terror.
III.
We therefore reverse the judgment of the district court,
and remand the case to allow the plaintiffs to pursue their
claims under 28 U.S.C. § 1605A.
REVERSED AND REMANDED
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Pg: 31 of 31
DAVIS, Circuit Judge, concurring:
My good friend has written an elegant opinion in which I am most
pleased to concur. I offer these few sentences to underscore
what Judge Duncan already makes clear: sua sponte invocation of
the res judicata affirmative defense is and should be the rare
exception, not the rule, and one reserved for truly “special
circumstances.”
Lest
there
be
any
doubt,
in
my
view,
the
circumstances surrounding the decade-long course of litigation
before
us
here
provide
the
circumstances.
31
applicable
measure
of
such
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