UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STUART E. STEINBERG, et al.,
Plaintiffs,
v. Case No. 20-cv-2996 (RCL)
REPUBLIC OF SUDAN,
Defendant.
MEMORANDUM OPINION
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. l: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.
1 The Mark plaintiffs appealed the dismissal to the United States Court of Appeals for the D.C. Circuit. See No. 21- 5250 (D.C. Cir. Nov. 3, 2021). Oral argument was held on October 28, 2022. No opinion has been released as of the date of this filing.
1 I. BACKGROUND
A. Factual Background2
Plaintiffs are victims, family members of victims, and the estates of victims injured by
Hamas in Israel and Palestine. Am. Comp!., ECFNo. 7, ff 1-36. 3 The United States has designated
Hamas as a Specially Designated Global Terrorist Organization, Foreign Terrorist Organization,
and Specially Designated Terrorist. Id. ,r 96. Six families form the plaintiff group: the Steinberg, Henkin, Fuld, Goodman, Rosenfeld, and Vaknin families (collectively "plaintiffs"). Id. ,r,r 1-36. The Steinberg, Henkin, and Fuld plaintiffs are the surviving family members and estates
of U.S. citizens killed by Hamas. Id. ,r,r 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. ,r,r 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. ,r,r 47-48. On September 16, 2018, Ari Fuld was fatally stabbed by aHamas member on his way to a shopping center in Gush Etzion Junction in Israel. Id. ,r,r 51-52. Investigations
confirmed that Hamas was responsible for the Henkin and Fuld deaths. Id. ff 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. ,r,r 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. ff 56, 63--05, 79. All three families have observed Hamas-launched rockets, as well as incendiary balloons and kites, near their homes.
2 The Court treats all the well-pleaded allegations as true. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). 3The numbering of paragraphs in the Amended Complaint restarts on page 8. Citations to paragraphs in the Amended Complaint refer to the restarted paragraph numbers.
2 Id. ,r,r 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. ,r,r 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. ,r 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. ,r,r 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 victims[.]" 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
3 any involvement in these attacks, it has been willing to address these claims as part of its effort to
fully normalize relations with the United States[.]" Id. Finally, the preamble "acknowledg[ ed] 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)(l). 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
4 That exception applies to: in any case ... in which money damages are sought against a foreign state 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 for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting in the scope of his or her office, employment, or agency.
28 U.S.C. § 1605A(a)(l).
4 other states and their property[,]" and (ii) "bar[] and preclude[] all suits and actions specified in
Article II[.]" Id. art. IIl(l) & 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. III(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(l). 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
5 These cases were: Owens v. Republic of Sudan, No. 01-cv-2244 (IDB) (D.D.C.); Wamai v. Republic ofSudan, No. 08-cv-1349 (IDB) (D.D.C.); Amduso v. Republic ofSudan, No. 08-cv-1361 (IDB) (D.D.C.); Mwila v. Islamic Republic of Iran, No. 08-cv-1377 (IDB) (D.D.C.); Onsongo v. Republic of Sudan, No. 08-cv-1380 (IDB) (D.D.C.); Khaliq v. Republic of Sudan, No. 10-cv-356 (IDB) (D.D.C.); Opati v. Republic of Sudan No. 12-cv-1224 (IDB) (D.D.C.)· Granville v. Republic of Sudan, No. 2018-28 (P.C.A.); and TCJttt v. Islamic Republic oflran, No. 20-cv- 1557 (RC) (D.D.C.).
5 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.
§ l 704(a)(l)(A)-(C), 134 Stat. at 3292. The Secretary of State was to provide Congress with a
certification that the conditions were met in order to trigger the restoration of Sudan's sovereign
immunity. 6 Id. § l 704(a)(2), 134 Stat. at 3293.
As to the scope of Sudan's new sovereign immunity, SCRA stated that such immunity
"shall apply to all conduct and any event occurring before" the date of the Secretary of State's
certification "regardless of whether, or the extent to which, application of that subsection affects
any action filed before, on, or after that date." Id. § 1704(b), 134 Stat. at 3293. However, the SCRA
specifically carved out from this general rule pending claims "in the multidistrict proceeding 03-
MDL-1570 in the United States District Court for the Southern District of New York," litigation
6 Those conditions were: (1) the Secretary of State's certification to Congress that Sudan's designation as a state sponsor of terrorism had been formally rescinded; (2) that Sudan made final payments with respect to the private settlement of claims by victims of the U.S.S. Cole bombing; and (3) that the United States received the funds to pay compensation to Granville's family and to victims of the embassy bombings. See SCRA § l 704(a)(2), 134 Stat. 3293.
6 relating to the terrorist attacks in the United States on September 11, 2001. Id. § 1706(a)(3), 134
Stat. at 3295; see In re Terrorist Attacks on Sept. 11, 2001, No. 03-mdl-01570 (S.D.N.Y.).
In April 2021, the Secretary of State certified that both the United States and Sudan had
complied with 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).
C. Procedural Background
Plaintiffs are the U.S. citizen victims, family members of victims, and estates of victims of
terrorist attacks allegedly carried out by Hamas in Israel and Palestine between 2014 and 2020.
See Am. Compl. ,r,r 1-36. Plaintiffs bring their case under 28 U.S.C. § 1605A(c), the FSIA's
terrorism exception, advancing various tort theories of liability on the allegation that Sudan
provided material support and resources to Hamas to carry out these attacks. See id. ,r,r 111-28. Plaintiffs seek several forms of compensatory damages, such as economic damages, pain and
suffering, and solatium, as well as punitive damages. See id. ,r,r 114, 118, 123-28. Plaintiffs filed their original complaint on October 19, 2022. See Compl., ECF No. 1. Plaintiffs then filed an
amended complaint approximately one month later. See Am. Compl. Plaintiffs served Sudan on
February 27, 2022 under cover of diplomatic note, one of the valid methods of service prescribed
in 28 U.S.C. § 1608(a). Return of Service, ECF No. 19.
In response, Sudan appeared and moved to dismiss the Amended Complaint under Federal
Rules of Civil Procedure 12(b)(l), (b)(2), and (b)(6). Def.'s Mot. to Dismiss, ECF No. 23. Sudan
argues that the CSA and SCRA restored its sovereign immunity in U.S. courts and terminated
terrorism-related claims against it, and thus plaintiffs' case lacks personal jurisdiction, subject-
7 matter jurisdiction, and a valid private right of action. 7 Id. at 1. Plaintiffs challenge the CSA and
SCRA as violative of their Fifth Amendment equal protection rights. 8 Pls.' Opp' n to Mot. to
Dismiss ("Pls.' Opp'n"), ECF No. 24, at 14-15. Sudan in reply insists that both the CSA and
SCRA are valid exercises of government power. See generally Def. 's Reply, ECF No. 28.
The plaintiffs filed a notice of a constitutional question, ECF No. 25, which this Court
certified to the Attorney General under 28 U.S.C. § 2403(a), ECF No. 27. The United States then
intervened, as of right, in support of Sudan and the constitutionality of the CSA and SCRA. See
U.S. Mem. Plaintiffs filed a response to the United States' memorandum. Pls.' Resp. to U.S. Mem.
("Pls.' Resp."), ECF No. 35. The United States replied to plaintiffs' response. U.S. Reply, ECF
No. 37. Sudan's motion is now ripe for review.
II. LEGALSTANDARD
The FSIA is the "sole basis for obtaining jurisdiction over a foreign state in our
courts." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989). Under
the FSIA, foreign states are presumptively immune from the jurisdiction of U.S. courts subject to
several enumerated exceptions. See 28 U.S.C. § 1604. A district court "has subject matter
jurisdiction over a suit against a foreign state if-and only if-the plaintiffs claim falls within"
7 Because the Court agrees with Sudan that this case must be dismissed for lack of subject-matter jurisdiction, the Court will not consider Sudan's alternative arguments. 8 Sudan argues that plaintiffs' constitutional challenge is procedurally flawed because it was raised in an opposition brief instead of an amended complaint. Def 's Reply, ECF No. 28, at 1-2. But this argument mischaracterizes pleading requirements. A plaintiff has no obligation to anticipate and respond to a defendant's potential defenses in the complaint, nor is a plaintiffs rebuttal to a defendant's affinnative defense equivalent to pleading a new claim for relief. See Owens v. Republic of Sudan, 412 F. Supp. 2d 99, 104 (D.D.C. 2006) ("Because sovereign immunity is in the nature of an affirmative defense, the plainti ff need not prove the ab ence of sovereign immunity in the first instance[.)"), ajf'd, 531 F.3d 884 (D.C. Cir. 2008). Here plaintiffs invoked the constitutional ity of the statute at issue as a way of opposing Sudan's affinnative defense of sovereign immunity. Therefore, the constitutional question is properly before the Court.
8 one of these exceptions. Odhiambo v. Republic of Kenya, 764 F.3d 31, 34 (D.C. Cir. 2014). "[I]f
no exception applies, the district court has no jurisdiction." Id.
A court "generally may not rule on the merits of a case without first determining that it has
jurisdiction over the category of claim in the suit (subject-matter jurisdiction)[.]" See Sinochem
Int'! Co. Ltd. v. Malaysia Int'! Shipping Corp., 549 U.S. 422, 430-31 (2007). If the court
determines that it lacks subject-matter jurisdiction, it must dismiss the case. Fed. R. Civ. P.
12(h)(3). The standard of review for a motion to dismiss depends upon the purpose of the motion.
Dentons US. LLP v. Republic of Guinea, 134 F. Supp. 3d 5, 7 (D.D.C. 2015). "[T]he Court
examines subject matter jurisdiction with more scrutiny than in non-FSIA cases." Id. The Court
must "assume the truth of all material factual allegations in the complaint," Am. Nat'l Ins. Co. v.
FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011), and "construe the complaint liberally, granting
plaintiff the benefit of all inferences that can be derived from the facts alleged." Thomas v.
Principi, 394 F.3d 970, 972 (D.C. Cir. 2005). The Court may look to materials beyond the
complaint to decide whether subject-matter jurisdiction exists. See Am. Freedom L. Ctr. v. Obama,
821 F.3d 44, 49 (D.C. Cir. 2016). The plaintiff bears the burden of establishing subject-matter
jurisdiction. Simon v. Republic ofHungary, 443 F. Supp. 3d 88, 99 (D.D.C. 2020).
III. DISCUSSION
Plaintiffs recognize that the SCRA, if valid, restores Sudan's sovereign and divests this
Court of subject-matter jurisdiction. See Pls.' Reply at 1. Plaintiffs seek to avoid this outcome by
arguing that the SCRA is unconstitutional in two ways under the Fifth Amendment's implicit
equal-protection guarantee. 9 First, plaintiffs assert that the CSA violates the Fifth Amendment
9 Plaintiffs bring their case under the Fifth Amendment's due process clause which provides, in relevant part, that "[n]o person shall be ... deprived of life, liberty, or property, without due process of law." U.S. canst., amend. V. The Fifth Amendment, which applies to the federal government, does not contain an explicit equal protection clause. The
9 because it results in disparate treatment between those plaintiffs with terrorism-related actions
against Sudan who can settle their claims and receive compensation-namely cases involving the
identified U.S. embassy bombings, U.S.S. Cole attack, and death of Granville-and the instant
plaintiffs, who cannot pursue their claims, thereby "distribut[ing] the benefits of the settlement in
a selective, arbitrary, and capricious manner." Pls.' Opp'n. at 15-16. Plaintiffs also identify the
SCRA's carve-out for the September 11, 2001 multidistrict litigation as a separate instance of
arbitrary differential treatment. Id. at 16-17. Second, plaintiffs claim that the SCRA violates the
Fifth Amendment because this disparate treatment impinges on a fundamental right, their access
to the courts, as they are cannot pursue their claims against Sudan in U.S. courts while the
claimants in the pending multidistrict litigation are still able to pursue their claims. Id. at 19.
If the portion of the SCRA restoring sovereign immunity to Sudan is unconstitutional, then
the Court retains subject-matter jurisdiction if an exception to Sudan's sovereign immunity under
the FSIA applies. If the statute is not unconstitutional, however, then the Court has no subject-
matter jurisdiction and the Amended Complaint must be dismissed. Accordingly, the Court must
address plaintiffs' substantive constitutional claims to arrive at a jurisdictional determination.
After review, the Court concludes that plaintiffs have failed to meet their burden to
demonstrate that this Court maintains subject-matter jurisdiction over their case. Thus, the Court
agrees with Sudan and the United States that the case must be dismissed.
Fourteenth Amendment, which applies only to the states, does contain such a clause and provides in relevant part, that "[n]o State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws." Id., amend. XIV. The Supreme Court has interpreted these respective clauses to mean that the concept of equal protection and due process, both stemming from our American ideal of fairness, are n9t mutually exclusive" and that " equal protection of the laws' is a more explicit safeguard of prohibited unfairness than due process of law[.]"' Bolling v. Sharpe 347 U.S. 497, 499 (1954). Later, the Col.l:rt confirmed thatthe ' [e] qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." Buckley v. Valeo , 424 U.S. 1, 93 (1976). Therefore, this Court analyzes plaintiffs' constitutional challenges under the equal-protection lens. A. Plaintiffs Have Not Demonstrated that the CSA and SCRA Distinguish Among Different Claimants Without a Rational Basis
Plaintiffs first argue that the CSA and SCRA violate the Fifth Amendment's equal-
protection guarantee by arbitrarily (1) espousing and settling claims of certain plaintiffs with
terrorism-related cases against Sudan, (plaintiffs in the identified U.S. embassy bombings, U.S.S.
Cole attack, and death of Granville), and (2) allowing other plaintiffs to proceed with their claims
(plaintiffs in the identified September 11, 2001 multidistrict litigation) while denying their claims
the same treatment. Id. at 15-16. Plaintiffs agree that this challenge is subject to rational-basis
review but nevertheless argue that both distinctions bear no rational relation to the government's
stated goals in the CSA and SCRA and thus impermissibly deny them equal protection of the law.
Id. at 15. Sudan and the United States argue that the classifications easily survive rational-basis
review. Def.'s Reply at 3; U.S. Mem. at 11. The Court agrees with Sudan and the United States.
Under rational-basis review, government action is "presumed to be valid and will be
sustained if the classification drawn by the statute is rationally related to a legitimate state interest."
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Because a statute survives
where there is a mere "relation between the classification adopted and the object to be attained,"
rational-basis review is the "most deferential of standards" of review for constitutional challenges.
Romer v. Evans, 517 U.S. 620, 632 (1996). "[I]t is entirely irrelevant for constitutional purposes
whether the conceived reason for the challenged distinction actually motivated the legislature."
FCCv. Beach Commc'ns, Inc., 508 U.S. 307,315 (1993). "[T]hose attackingtherationalityofthe
legislative classification have the burden" to demonstrate otherwise. Id. "A plaintiff bringing a
constitutional challenge to a regulation on rationality grounds thus faces the unenviable task of
refuting 'every conceivable basis which might support it.'" Sanchez v. Off ofState Superintendent
ofEduc., 45 F.4th 388,396 (D.C. Cir. 2022) (quoting Beach Commc'ns, 508 U.S. at 315).
11 As a threshold matter, Sudan argues, and plaintiffs do not directly dispute, that restoring
and improving diplomatic relations with Sudan is a legitimate U.S. state interest, that the executive
branch has significant foreign affairs authority to negotiate settlement ·agreements with other
nations, and that Congress has the authority to enact legislation operationalizing those
agreements. 10 Def. 's Reply at 4-5. The Court agrees and sees no occasion to doubt the
government's "sensitive interests in national security and foreign affairs" and "in preventing
terrorism." Holder v. Humanitarian L. Project, 561 U.S. 1, 36 (2010). And settlement of
"outstanding claims by nationals of one country against the government of another country" is an
effective way of resolving "sources of friction between the two sovereigns." Dames & Moore v.
Regan, 453 U.S. 654, 679 (1981) (internal quotation marks and citation omitted). One such well-
recognized form of settlement is espousal, "whereby one government adopts or 'espouses' and
settles the claim of its nationals against another government." Antolak v. United States, 873 F.2d
369, 375 (D.C. Cir. 1989) (internal citation omitted). The federal government's "absolute power"
"to espouse claims does not depend on the consent of the private claimholder." Asociacion de
Reclamantes v. United Mexican States, 735 F.2d 1517, 1523 (D.C. Cir. 1984) (Scalia, J.).
Moreover, "[ o]nee it has espoused a claim, the sovereign has wide-ranging discretion in disposing
of it. It may compromise it, seek to enforce it, or waive it entirely." Id.
With these principles in mind, the Court will address plaintiffs' two challenged
classifications in tum.
10 1n fact, contrary to p laintiffs' assertion, iti the executive wide foreign affairs authority, and the executive's ability to enter into settlement agreements that" is a longstanding policy" not any policy to 'allow civil actions to proceed against those who support international terrorism." Pls,' Opp' n at 17· Compare Am. Ins. Ass 'n v. Garamendi, 539 U.S. 396, 415 (2003) (noting that "[m]aking executive agreements to ettle claims of American nationals against foreign governments is a p articularly longstanding practice, the first example being as early as 1799"), with In re Islamic Republic of h-an Terrorism L itig. , 659 F. Supp. 2d 31 , 79 (D.D. C. 2009) (noting that Congress first recognized a private cause of action for victims of state-sponsored terrorism in 2008).
12 Plaintiffs first claim that there is no rational basis for the CSA and SCRA's espousal,
settlement, and disbursement of compensation for claims in the identified U.S. embassy bombings,
U.S.S. Cole attack, and death of Granville but not claims such as theirs. Pls.' Opp'n at 15-16.
Essentially, plaintiffs object to their denial of compensation while other plaintiffs are eligible for
compensation. U.S. Mem. at 14-15.
Sudan offers a number of rational bases for treating the instant plaintiffs' claims
differently from those other plaintiffs, including: (1) different procedural postures (the other
plaintiffs' claims were resolved by the date of the CSA while the instant case was only just
filed), Def ' s Reply at 6-8; (2) different judgment contexts (some of the other plaintiffs' claims
were resolved through default judgments under a previous authoritarian Sudan while newly-
democratic Sudan appeared here), id. at 6-7; (3) the presence of private settlement agreements
(some of the other plaintiffs' claims were resolved this way while plaintiffs in the instant case
seek to litigate their claims), id. at 7-8; (4) the scale and nature of the terrorist attacks at issue
(other plaintiffs' claims involved targeting of specific U.S. government interests and personnel
while plaintiffs here do not allege specific targeting), id. at 9-10; and (5) the timing of the
actions (liability on other plaintiffs' claims was determined years ago while no court has ruled on
the merits of the instant plaintiffs' claims), id. at 11-13.
Plaintiffs do not respond to all of Sudan's arguments, nor do they refute every
conceivable basis for the CSA and SCRA. Thus, they fail to meet their burden under rational-
basis review. Beach Commc'ns, 508 U.S. at 315. Moreover, far from Sudan's arguments being
impermissible "after-the-fact rationalizations," Pl. 's Opp'n at 18, these justifications demonstrate
that the CSA and SCRA were both entirely rational means of achieving the legitimate end of
supporting a nascent democracy, securing justice for past victims of terrorism, and preventing
13 future terrorist attacks. 11 U.S. Mem. at 17. As it is well-established, "[d]efining the class of
persons" who may are eligible for compensation-"much like classifying [all] government
beneficiaries-"inevitably requires that some persons who have an almost equally strong claim
to favored treatment be placed on different sides of the line, and the fact that the line might have
been drawn differently at some points is a matter for legislative, rather than judicial,
consideration."' Beach Commc 'ns, 508 U.S. at 315- 16 (internal citation omitted).
First, plaintiffs argue that classifying claims based on timing does not survive rational-
basis review because one of the cases included in the CSA' s list of settlements for compensation,
Taitt v. Islamic Republic ofIran, 20-cv-1557 (RC) (D.D.C.), was not, in fact, filed years before.
PL' s Opp'n at 18. But as Sudan correctly points out, though Taitt was filed in 2020, that case
involved victims of the U.S.S. Cole attack, and a court determined Sudan's liability for that
attack nearly fifteen years before the CSA. De£ 's Reply at 6 (citing Harrison v. Republic of
Sudan, 882 F. Supp. 2d 23, 26-27 (D.D.C. 2012) (Lamberth, CJ.) and Rux v. Republic of Sudan,
495 F. Supp. 2d 541, 543 (E.D. Va. 2007)). Thus, Taitt fits neatly in the group of other cases
designated for compensation. 12
Second, plaintiffs insist that differentiating between claimants who already held default
judgments against Sudan and those who did not is irrational because the CSA and SCRA also
permitted compensation for plaintiffs that engaged in certain private settlement agreements. Pls.'
Opp'n at 18. Plaintiffs' assertion fails for the same reason as their previous argument-these
11 What is more, after-the-fact rationalizations are perfectly acceptable because a statute passes rational-ha is review if one can even hypothesize that the policymaker might have enacted the policy for u certain reason. See Williamson v. Lee Optical of Okla. , Inc., 348 U.S. 483, 487-88 (1955). 12 Plaintiffs further argue that timing is not a rational classification because they timely filed their claims as required under 28 U.S.C § 1605A(b)(2). Pls.' Opp'n at 18. But, as discussed above, it is the fact of when the claim was filed, and specifically the fact that liability was already determined at the time of the CSA, not whether the claim could be filed, that matters for the timing classification.
14 private settlement agreements were already in existence at the time of the CSA and therefore
presumably included in the executive branch's bargain. 13 Furthermore, given Sudan's necessarily
finite resources, limiting compensation to "claims where [Sudan] was already on the hook was
rational." Mark, 2021 WL 4709718, at *3. Plaintiffs' response is that the CSA and SCRA are
ambiguous as to whether the private settlement agreements they contemplated were those already
paid or shortly would receive payment, as Sudan and the United States argue, or could be paid
using the settlement funds, as plaintiffs read it. Pl.'s Resp. at 2-5. This argument elides the point.
It is the resolved or unresolved nature of the cases, not the timing of the compensation, that is the
basis of the rational distinction between these two groups of plaintiffs. See U.S. Reply at 4.
Plaintiffs argue that the SCRA's carveout for September 11, 2001 victims does not
further the CSA's stated aims, echoed in the SCRA, of restoring the United States' relationship
with Sudan by settling and providing compensation for some claims against Sudan, and barring
all other terrorism-related suits against Sudan. See Pls.' Opp'n at 16-17; CSA, preamble & art.
II; SCRA § 1702, 134 Stat. at 3291. Notwithstanding the fact that the stated reasons for a statute
have no constitutional relevance, see Beach Commc'ns, 508 U.S. at 307, Sudan offers various
rational bases for the SCRA's disparate treatment of plaintiffs' claims as compared to the
September 11, 2001 claims, summarized as "[t]he sui generis nature of the 9/11 attacks and
Congress's unique treatment of the victims." Def.' s Reply at 10-11 (describing how the attacks
resulted in nearly 3,000 deaths, how the attacks targeted specific U.S. commercial, government,
and military landmarks, and how Congress passed various statutes and set up a compensation
scheme addressed at benefitting victims); see U.S. Mem. at 13-14.
13 It is for this reason that the Court need not reach Sudan's alternative argument in response: that neither the settlement agreements themselves nor the U.S . government's action in distributing funds pursuant to the agreements are subject to constitutional challenges because the agreements are between private parties and the U.S. government's role is "merely carrying out the terms ofth[o]se private agreements." Def. ' s Reply at 14.
15 Plaintiffs' claims, on the other hand, relate to attacks occurring outside of the United
States. Def.'s Reply at 11; U.S. Mem. at 13. Plaintiffs rspond that it is "nonsensical" and
"[un]justifiable" to distinguish between their claims and the victims of the September 11, 2001
attacks merely because of the location of the attacks. Pl.'s Resp. at 7. To the contrary, it is
plainly rational for the executive and Congress to prioritize claims "concem[ing] a terrorist
attack on U.S. soil" over claims arising elsewhere. Mark, 2021 WL 4709718, at *3.
As a last-ditch effort, plaintiffs insist that the rational bases offered by Sudan are "merely
a pretext for disparate treatment" and that this Court should ignore them. Pis.' Resp. at 5. But as
the United States points out, this Circuit has not held that an allegation of pretext overcomes an
otherwise rational justification for a law, and one court in this District already rejected such an
argument. U.S. Reply at 4 (citing XP Vehicles, Inc. v. Dep 't ofEnergy, 118 F. Supp. 3d 38, 77
(D.D.C. 2015)).
Here, the executive branch validly exercised its vast power to espouse, settle, and resolve
claims of U.S. citizens against a foreign sovereign as part of a broader effort to normalize
diplomatic relations with that sovereign. See Asociacion de Reclamantes, 735 F.2d at 1523.
Furthermore, Congress validly exercised its power to codify the executive's international
agreement into domestic law, strip courts of jurisdiction to hear plaintiffs' claims, and to remove
the associated private cause of action. See Patchak v. Zinke, 138 S. Ct. 897, 906 (2018) ("[When]
Congress strips federal courts of jurisdiction, it exercises a valid legislative power."); Bank
Markazi v. Peterson, 578 U.S. 212,236 (2016) ("[I]t remains Congress' prerogative to alter a
foreign state's immunity and to render the alteration dispositive of judicial proceedings in
progress.").
16 Because plaintiffs have not met their burden to prove that the CSA and SCRA do not
distinguish among claimants without a rational basis, the Court does not hold otherwise.
B. Plaintiffs Have Not Demonstrated that the CSA and SCRA Unconstitutionally Impair Their Right to Access Courts
In the alternative, plaintiffs claim that the CSA and SCRA violate the Fifth Amendment's
equal-protection guarantee of access to courts and, because access to courts is a fundamental right,
the CSA and SCRA are therefore subject to strict-scrutiny review. Pls.' Opp'n at 20. Specifically,
they assert that the SCRA's restoration of Sudan's sovereign immunity prevents a court from
adjudicating terrorism-related claims against Sudan but allows the victims of the September 11,
2001 terrorist attacks to pursue their claims, and therefore this classification is not narrowly
tailored to serve a compelling government interest. Id.
"When a statutory classification significantly interferes with the exercise of a fundamental
right, it cannot be upheld unless it is supported by sufficiently important state interests and is
closely tailored to effectuate only those interests." Zablocki v. Redhail, 434 U.S. 374, 388 (1978).
The Supreme Court has recognized that access to courts is a fundamental right protected by the
Fifth Amendment. Christopher v. Harbury, 536 U.S. 403,415 (2002). However, this fundamental
right applies only to two narrow categories of denial-of-access scenarios. Id. at 413-14 (collecting
cases). The first category, for "forward-looking" claims, concerns cases where "official action is
presently denying an opportunity to litigate for a class of plaintiffs," such as prisoners' access to
courts or excessive mandatory filing fees preventing indigent parties from litigating their claims.
Id. at 413, 415 (internal citations omitted). The second category, for "backward-looking" claims,
concerns cases where official action "may allegedly have caused the loss or inadequate settlement
of a meritorious case, the loss of an opportunity to sue, or the loss of an opportunity to seek some
particular order of relief." Id. at 414 (internal citations omitted).
17 Plaintiffs' claim plainly does not fall into either of the recognized lines of denial-of-access
cases. Plaintiffs are freely able to enter U.S. courts and sue any other defendant under the same
theory they press against Sudan. In fact, plaintiffs have already done so-they are currently
pursuing multiple cases against the Islamic Republic of Iran and the Syrian Arab Republic before
the undersigned for materially supporting Hamas in the same attacks as those at issue here. See
Steinberg v. Islamic 'Republic ofIran, No. 17-cv-1910 (RCL) (D .D .C. ); Henkin v. Islamic Republic
ofIran, No. 18-cv-1273 (RCL) (D.D.C.); Fuld v. Islamic Republic ofIran, No. 20-cv-2444 (RCL)
(D.D.C.). Plaintiffs have already obtained a judgment or a finding of liability in two of the three
cases. See Steinberg, ECF Nos. 19, 33-34; Henkin, ECF No. 31. Nor can plaintiffs point to
negligent or improper official action preventing their ability to sue or causing the loss of a
meritorious case. To the contrary, the official action here was valid. See Clay v. Socialist People's
Libyan Arab Jamahiriya, 614 F. Supp. 2d 21, 23 (D.D.C. 2009) ("[S]ubject-matter jurisdiction of
the lower federal courts is determined by Congress 'in the exact degrees and character which to
Congress may seem proper for the public good.'") (quoting Amerada Hess, 488 U.S. at 433). And
restoring Sudan's sovereign immunity and eliminating the terrorism-related cause of action does
not prevent plaintiffs from pursuing their claims in another forum. Def.' s Reply at 20.
Plaintiffs rely on Dames & Moore to insist that they have been denied access to a forum to
hear their claims, but this reliance is misplaced. Plaintiffs argue that Congress's establishment of
a claims resolution and compensation disbursement procedure was the primary, or at least a very
significant, reason that the Supreme Court validated the U.S. government's settlement of claims
against Iran in that case. Pis. ' Resp. at 8-9 (citing Dames & Moore, 453 U.S. at 680, 686-87). But
Dames & Moore does not stand for the proposition that an alternative forum must be provided
when the executive settles citizen claims; the existence of an alternative forum only "buttressed"
18 the Supreme Court's conclusion that the President did not exceed his authority when he, pursuant
to an executive agreement, issued executive orders and regulations that "nullified attachments and
liens on Iranian assets in the United States, directed that these assets be transferred to Iran, and
suspended claims against Iran that may be presented to an International Claims Tribunal." Dames
& Moore, 453 U.S. at 660, 686.
Finally, plaintiffs' comparison of the CSA and SCRA to a 2008 settlement agreement
between the United States and Libya is inapposite. Plaintiffs claim that the CSA and SCRA denied
plaintiffs' claims without compensation, while the other agreement "ensur[ed] that all U.S.
nationals with terrorism claims were included in" the agreement. Pls.' Resp. at 9 (citing Libyan
Claims Resolution Act, Pub. L. No. 110-301, 122 Stat. 2999 (2008)). Assuming without deciding
that plaintiffs' assertion is true-that the executive chose to settle one set of claims one way but
another set of claims differently-it is not for this Court to review. Mark, 2021 WL 4709718, at
*4 ("With the power to settle claims comes the power to settle them imperfectly. [Plaintiffs]
essentially ask for the Court to rule that the executive branch should have negotiated better. This
it will not and cannot do.").
The courthouse doors are plainly not closed to plaintiffs. Therefore, they have not been
denied a fundamental right and are unable to challenge the CSA and SCRA on a strict-scrutiny
basis. 14
* * *
The Court concludes that plaintiffs have not met their burden to demonstrate that the CSA
and SCRA are unconstitutional under the Fifth Amendment.
14 Because the Court agrees that plaintiffs have not established that their case falls within the recognized denial-of- access cases, the Court need not address Sudan' s alternative argument that the CSA and SCRA survive strict scrutiny. Def.' s Reply at 20-21 .
19 C. The Court Lacks Subject-Matter Jurisdiction Over the Case
Having determined that the CSA and SCRA are constitutional, the Court returns to the only
issue remaining for disposition: the existence of subject-matter jurisdiction. The CSA and SCRA
were valid exercises of executive and legislative power. See Patchak, 138 S. Ct. at 906; Bank
Markazi, 578 U.S. at 236. Together they restored Sudan's immunity in U.S. courts and removed
the FSIA's private cause of action for terrorism-related cases. Because Sudan is now immune from
suit, this Court lacks jurisdiction over plaintiffs' case. See Amerada Hess, 488 U.S. at 434.
IV. CONCLUSION
For the foregoing reasons, this Court lacks subject-matter jurisdiction and must dismiss the
case. A separate Order shall issue.
SIGNED this --2-"i A day of March, 2023 . Royce C. Lamberth United States District Judge