Mark v. Republic of the Sudan

• Court: District Court, District of Columbia
• Decided: October 7, 2021
• Docket: Civil Action No. 2020-3022
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHAVA RACHEL MARK, et al.,

Plaintiffs,

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

REPUBLIC OF THE SUDAN,

Defendant.

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.

I.

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.

1 As it must at the motion to dismiss stage, the Court assumes as true all allegations appearing in the complaint. 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 regime that now governs Sudan. See Claims Settlement Agreement, U.S.-

Sudan, Oct. 30, 2020, T.I.A.S. No. 21-209 (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

2 All page citations refer to the pagination generated by the Court’s CM/ECF system. 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.

2 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 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 (1989). Under

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.

3 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 (1983). The 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 (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 Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005),

including undisputed facts in the record or disputed facts that it resolves, see Herbert v. Nat’l

Acad. of Scis., 974 F.2d 192, 197 (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.

4 III.

A.

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 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.

5 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 (D.C. Cir. 2011) (noting that claim that statute

“violates equal protection by singling out” certain parties “for special treatment is subject only to

rational-basis 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

Commc’ns, Inc., 508 U.S. 307, 315 (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 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

6 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 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

(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 (1981). The classifications implicitly created by the

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.

7 claims settlement are neither at odds with nor “clearly irrelevant” to the stated goals of the CSA

and SCRA of repairing the countries’ relationship. USDA v. Moreno, 413 U.S. 528, 534 (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 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 (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., Am. Ins. Ass’n v. Garamendi, 539

U.S. 396, 420 (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

8 would seriously interfere with the President’s ability to conduct foreign 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.

B.

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 (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 (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 (D.C. Cir. 2006). So their arguments understandably

look very different than those that have prevailed in prior cases. See Christopher v. Harbury,

536 U.S. 403, 412, 413–14 (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

9 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.

* * *

Having determined that the CSA and SCRA survive constitutional challenge, the Court

returns to its jurisdiction. The visit is brief.

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).

10 IV.

For these reasons, the Court will grant the motion and dismiss the case with prejudice. A

separate Order will issue.

2021.10.07 17:05:29 -04'00' Dated: October 7, 2021 TREVOR N. McFADDEN, U.S.D.J.