Filed: Feb. 03, 2011
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-2359 OLIVIA RUX, individually and as next friend for I.M.O., a minor; JAMIE OWENS, individually and as next friend for I.M.O., a minor; SHARLA COSTELOW, individually and as next friend for E.C. and B.C., minors; NOVELLA WIGGINS, individually and as next friend for J.R.M., Jr., a minor; LORRIE D. TRIPLETT, individually and as next friend for Andrea Triplett and Savannah Triplett; JENNIFER CLODFELTER, individually and as next
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-2359 OLIVIA RUX, individually and as next friend for I.M.O., a minor; JAMIE OWENS, individually and as next friend for I.M.O., a minor; SHARLA COSTELOW, individually and as next friend for E.C. and B.C., minors; NOVELLA WIGGINS, individually and as next friend for J.R.M., Jr., a minor; LORRIE D. TRIPLETT, individually and as next friend for Andrea Triplett and Savannah Triplett; JENNIFER CLODFELTER, individually and as next ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2359
OLIVIA RUX, individually and as next friend for I.M.O., a
minor; JAMIE OWENS, individually and as next friend for
I.M.O., a minor; SHARLA COSTELOW, individually and as next
friend for E.C. and B.C., minors; NOVELLA WIGGINS,
individually and as next friend for J.R.M., Jr., a minor;
LORRIE D. TRIPLETT, individually and as next friend for
Andrea Triplett and Savannah Triplett; JENNIFER CLODFELTER,
individually and as next friend for Noah Clodfelter; KENYON
EMBRY, individually and as next friend for Capri Dumar;
RONALD W. FRANCIS; JACQUELINE SAUNDERS, individually and as
next friend for I.S. and J.S., minors; SANDRA FRANCIS;
ROGELO SANTIAGO; SIMEONA SANTIAGO; SARAH GUANA ESQUIVEL;
JESSE NIETO; THOMAS WIBBERLY; PATRICIA WIBBERLY; THEODIS
TRIPLETT; WAYNE TRIPLETT; REED TRIPLETT; GARY SWENCHONIS,
SR.; DEBORAH SWENCHONIS; SHALALA SWENCHONIS; KATE BROWN;
SEAN WALSH; KEVIN ROY; LOU GUNN; MONA GUNN; JAMAL GUNN;
JASON GUNN; ANTON J. GUNN; LEROY PARLETT; ETTA PARLETT,
individually and as next friend for H.P., a minor; KERA
MILLER; MATTHEW PARLETT; JOHN CLODFELTER; GLORIA
CLODFELTER; JOSEPH CLODFELTER; TONI WIBBERLY; DIANE
MCDANIELS; TERESA SMITH; GEORGE COSTELOW; DOROTHY COSTELOW;
FREDERICA MCDANIELS-BESS; DAVID FRANCIS; KEVIN TRIPLETT;
FREDDIE TRIPLETT; SAVANNAH TRIPLETT,
Plaintiffs – Appellants,
v.
REPUBLIC OF THE 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. (2:04-cv-00428-RGD-TEM)
Argued: October 26, 2010 Decided: February 3, 2011
Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
Affirmed in part and dismissed in part by unpublished order.
Judge Duncan directed entry of the order with the concurrences
of Judge Agee and Judge Davis.
ARGUED: Andrew C. Hall, HALL, LAMB & HALL, PA, Miami, Florida,
for Appellants. Lewis Yelin, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Intervenor. ON BRIEF: James D.
Cooper-Hill, Rockport, Texas; Nelson M. Jones, III, Houston,
Texas; Roarke Maxwell, HALL, LAMB & HALL, PA, Miami, Florida;
Timothy P. Sceviour, ABRONS, FASANARO & SCEVIOUR, Norfolk,
Virginia, for Appellants. Tony West, Assistant Attorney
General, Douglas N. Letter, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Neil H. MacBride, United States Attorney,
Alexandria, Virginia, for Intervenor.
2
ORDER
This appeal arises from the district court’s denial of
Appellants’ motion for leave to supplement their complaint in an
action brought against the Republic of Sudan (“Sudan”) by
relatives of the American sailors killed in the October 2000
terrorist bombing of the U.S.S. Cole. On November 3, 2010, we
issued an Order for Supplemental Briefing directing parties to
address whether any of the issues pending before this Court on
appeal are rendered moot by the Appellants’ filing of a new,
related action pursuant to 28 U.S.C. § 1605A in the Eastern
District of Virginia. Having reviewed those submissions, we
find that Appellants’ constitutional challenge to § 1083(c)(2)
of the National Defense Authorization Act (“NDAA”) for Fiscal
Year 2008, Pub. L. No. 110-181, 122 Stat. 3, 342-43, Section
1083(a)(1) (codified at 28 U.S.C. § 1605A (Supp. II 2008)), is
no longer viable given the filing of their new action. Further,
in light of Appellants’ argument that their state common law
claims have been preempted, we affirm the district court’s
dismissal of those claims.
3
I.
A.
The facts giving rise to this action are set forth more
fully in our previous opinion, Rux v. Republic of Sudan, 461
F.3d 461 (4th Cir. 2006) (“Rux I”). We briefly summarize those
facts and the procedural history pertinent to the instant order.
This action arises out of the October 12, 2000, bombing of the
U.S.S. Cole in the Port of Aden, Yemen. Seventeen U.S. Navy
sailors were killed in the attack that day, and fifty-nine
surviving family members (Appellants here) brought this action
against Sudan to recover for damages resulting from the sailors’
deaths. Appellants alleged that the Al Qaeda terrorist
organization planned and executed the U.S.S. Cole bombing, and
that Sudan provided material support to Al Qaeda in the years
leading up to the attack.
After initially defaulting, Sudan appeared and sought
dismissal on various grounds, including sovereign immunity. We
affirmed the district court’s determination that Appellants had
alleged sufficient jurisdictional facts to bring their case
within the Foreign Sovereign Immunities Act (“FSIA”) terrorism
exception. 1 Rux I, 461 F.3d at 474. We declined to exercise
1
Under the FSIA, foreign states are generally immune from
civil suits in the United States, and district courts lack
subject matter jurisdiction over civil suits against foreign
(Continued)
4
pendent appellate jurisdiction and dismissed the remainder of
Sudan’s appeal. Id. at 476-77. On remand to the district
court, Sudan made its final appearance in this case by informing
the court it would “not defend or otherwise participate in this
proceeding on the merits.” J.A. 60 (quoting letter from Sudan).
Appellants asserted claims under the Death on the High Seas
Act (“DOHSA”), state law tort claims, and maritime wrongful
death claims. After considering Appellants’ evidence, the
district court determined that “Sudan’s material support to Al
Qaeda led to the murders of the seventeen American servicemen
and women.” J.A. 79; see also 28 U.S.C. § 1608(e) (permitting
entry of a default judgment against a foreign state only after
“the claimant establishes his claim or right to relief by
evidence satisfactory to the court”). Over Appellants’
objection, however, the district court found that DOHSA provided
states, unless the suit involves claims coming within an
exception to foreign sovereign immunity. See 28 U.S.C. §§ 1330,
1604-07. One such exception was created by 28 U.S.C.
§ 1605(a)(7), repealed by NDAA § 1083(b)(1)(A)(iii), which
stripped a foreign state’s immunity from suit in the event of
certain acts of state-sponsored terrorism, provided the state
had been designated by the Secretary of State as a state sponsor
of terrorism. When a state is subject to suit under an
exception to immunity, “the foreign state shall be liable in the
same manner and to the same extent as a private individual under
like circumstances.” Id. § 1606.
5
the exclusive remedy for Appellants’ claims. 2 J.A. 96-101. As
the district court explained, the Supreme Court has held that
“[b]y authorizing only certain surviving relatives to
recover damages, and by limiting damages to the
pecuniary losses sustained by those relatives,
Congress provided the exclusive recovery for deaths
that occur on the high seas” and therefore “has
precluded the judiciary from enlarging either the
class of beneficiaries or the recoverable damages”
under DOHSA.
J.A. 98 (quoting Dooley v. Korean Air Lines Co., Ltd., 524 U.S.
116, 123 (1998)). Accordingly, the district court dismissed
Appellants’ maritime and state law claims on preemption grounds.
On July 25, 2007, the district court entered a final
judgment, awarding eligible plaintiffs a total of $7,956,344
plus post-judgment interest, under DOHSA. See Rux v. Republic
of Sudan, 495 F. Supp. 2d 541, 567-69 (E.D. Va. 2007) (“Rux
II”); see also 46 U.S.C. § 30302 (limiting the class of eligible
DOHSA plaintiffs to a “decedent’s spouse, parent, child, or
dependent relative”).
Appellants timely appealed from the district court’s
dismissal of their maritime and state law claims. While the
appeal was pending, Congress amended the FSIA through its
2
DOHSA creates a right of action for death “occurring on
the high seas beyond 3 nautical miles from the shore of the
United States.” 46 U.S.C. § 30302.
6
passage of the NDAA, 3 which created a new federal right of action
for injuries caused by acts of state-sponsored terrorism. See
28 U.S.C. § 1605A. The new right of action created by § 1605A
provides for additional remedies not allowed under DOHSA, such
as “economic damages, solatium, pain and suffering, and punitive
damages.” Id. at 1605A(c).
While § 1605A allows plaintiffs to invoke the new right of
action with regards to certain “pending” cases, the provision is
not automatically retroactive. Kirschenbaum v. Islamic Republic
of Iran, 572 F. Supp. 2d 200, 203 n.1 (D.D.C. 2008). Section
1083(c) of the NDAA governs the amendment’s retroactive
application. Pursuant to § 1083(c)(2) (“Prior Actions”), a
plaintiff whose action was pending before the courts when the
NDAA became law is given sixty days within which to “refile” his
suit based upon the new cause of action, provided he meets all
3
Congress passed the NDAA at least in part to overturn the
D.C. Circuit’s decision in Cicippio-Puleo v. Islamic Republic of
Iran, 353 F.3d 1024 (D.C. Cir. 2004). See 154 Cong. Rec. S44,
S55 (daily ed. Jan. 22, 2008) (statement of Sen. Lautenberg).
Cicippio-Puleo held that while § 1605(a)(7) created jurisdiction
in the federal courts, neither it, nor the Flatow Act, nor the
two in conjunction, created a private right of action against a
foreign
government. 353 F.3d at 1033; see also Foreign
Operations, Export Financing, and Related Appropriations Act
(the “Flatow Act”) of 1997, Pub. L. No. 104-208, § 589, 110
Stat. 3009, 3009-172 (1996) (creating a right of action for
terrorism-related injuries against an “official, employee, or
agent of a foreign state designated as a state sponsor of
terrorism”).
7
the requirements. Under § 1083(c)(3) (“Related Actions”), a
plaintiff who had “timely commenced” a “related action” under
§ 1605(a)(7) may bring a new action “arising out of the same act
or incident,” provided it is commenced no later than sixty days
after either the enactment of the NDAA or the entry of judgment
in the original suit. Simon v. Republic of Iraq, 529 F.3d 1187
(D.C. Cir. 2008), rev’d on other grounds sub nom. Republic of
Iraq v. Beaty,
129 S. Ct. 2183 (2009) (interpreting new NDAA
provisions).
Before reaching the merits of Appellants’ claims, this
Court granted Appellants’ motion to remand the case to the
district court for consideration of whether Appellants could
rely on the new right of action under § 1605A. See Rux v.
Republic of Sudan, No. 07-1835 (4th Cir. order dated July 14,
2009). While the case was before the district court on remand,
Appellants filed a motion for leave to supplement their
complaint, pursuant to § 1083(c)(2), in order to add claims for
non-pecuniary loss under the new right of action. On December
3, 2009, the district court entered an order denying Appellants’
motion. Appellants timely appealed the order, which is the
subject of the current appeal.
8
B.
Prior to this Court’s Order for Supplemental Briefing,
Appellants advanced two arguments on appeal. 4 First, they argued
that § 1083(c)(2) of the NDAA violates their equal protection
rights. Appellants conceded that they do not meet the statutory
requirements of § 1083(c)(2), “literally applied.” Appellants’
Br. at 36. They nonetheless argued that the requirements set
out in § 1083(c)(2) create “an irrational class distinction that
impermissibly discriminates against Appellants by precluding
them from bringing suit pursuant to § 1605A,” thereby
“violat[ing] the guarantee of equal protection embodied in the
Fifth Amendment.” Appellants’ Br. at 37, 39. 5
Second, Appellants argued that the district court erred in
holding that “DOHSA is Plaintiff’s exclusive cause of action,”
4
The issues raised on appeal are relevant to this order
only insofar as they inform the Court’s analysis of the
arguments raised in the parties’ subsequently-filed supplemental
briefs, which are discussed in Section II.
5
Appellants argued that the conversion provision’s
requirement of prior reliance on the old terrorism exception
creates three classes of plaintiffs: (1) plaintiffs who have
not filed an action under the prior terrorism exception; (2)
plaintiffs who filed an action under the prior terrorism
exception and relied on the exception as creating a right of
action, before the D.C. Circuit held in Cicippio-Puleo that the
old exception did not provide a right of action; and (3)
plaintiffs who filed an action under the prior terrorism
exception after Cicippio-Puleo and who did not rely on the
exception for their right of action. Appellants placed
themselves in the third class.
9
J.A. 254, preempting their state law claims. They contended
that DOHSA does not prevent them from bringing state law tort
claims for their own non-pecuniary injuries caused by the
wrongful death of their family members.
Although Sudan has chosen to no longer defend or otherwise
participate in this action, Appellants were not unopposed on
appeal. The government, as intervenor-appellee under 28 U.S.C.
§ 2403 and as amicus curiae under 28 U.S.C. § 517 and Federal
Rule of Appellate Procedure 29(a), filed an appellate brief
defending the constitutionality of § 1083, as well as the
district court’s ruling that DOHSA provides Appellants’
exclusive remedy, foreclosing any state law claims.
After the government filed its brief with the court, but
before oral argument, Appellants filed a new, related action
against Sudan under 28 U.S.C. § 1605A(c). See Kumar v. The
Republic of Sudan, No. 10-cv-171 (E.D. Va. filed Apr. 15, 2010).
The new action was brought by the same fifty-nine plaintiffs who
are named in the case sub judice (plus two additional
plaintiffs, Avinesh Kumar and Hugh Palmer, who are not parties
to the action before this court). See Transcript of Record at
4, Kumar v. Republic of Sudan, No. 10-cv-171 (E.D. Va. Sept. 9,
2010) (No. 25). Additionally, the new action “seek[s]
equivalent relief.” Appellants’ Supp. Br. at 13. However, in
their new action, Appellants do not rely on the conversion
10
provision of § 1083(c)(2). In fact, Appellants expressly
disavow any reliance on § 1083(c)(2) as a basis for their suit.
See Plaintiffs’ Br. in Response to the Court’s Order Dated
August 3, 2010 at 9, 10, Kumar, No. 2:10cv171 (E.D. Va. Aug. 23,
2010), ECF No. 21 (asserting that they relied directly on 28
U.S.C. § 1605A to file their claim and did not seek “to have an
earlier action deemed to be filed under 28 U.S.C. § 1605A
pursuant to NDAA § 1083(c)[(2)](A)”). 6
The case sub judice was argued on October 26, 2010. At
argument, the government suggested that this appeal may be moot
as a result of Appellants’ new action. We ordered supplemental
briefing on the issue of mootness, directing the parties to
address “whether any or all of the issues pending before this
Court are rendered moot by the appellants’ filing of [Kumar v.
Republic of Sudan] pursuant to 28 U.S.C. § 1605A.” Order, No.
09-2359 (Nov. 3, 2010), ECF No. 38.
II.
Appellants maintain in their supplemental brief that their
constitutional challenge to § 1083(c)(2) continues to present a
6
The District Court directed Plaintiffs to advise this
Court of the new action and to provide this Court with the
transcript of the August 24, 2010 hearing related to issues
raised in the District Court’s briefing order.
11
live controversy. They also argue, for the first time, that
their state common law claims have been preempted by § 1605A.
Proceeding from that assumption, Appellants reason that the
preemption of their state law claims moots their appeal from the
district court’s dismissal of those claims, and that we are
therefore without jurisdiction to entertain them. Moreover,
they argue “the district court’s opinion is manifestly
incorrect” and should be vacated. Appellants’ Supp. Br. at 15.
Appellants’ position is untenable on all counts.
Appellants’ constitutional claim is premised on the
contention that § 1083(c)(2)’s requirements for conversion
violate Appellants’ equal protection rights “by precluding them
from seeking relief pursuant to § 1605A.” Appellants’ Br. at
37. Appellants now insist in their new, related action, that
they need not rely on § 1083(c)(2) to seek relief pursuant to
§ 1605A, because they have a valid claim, irrespective of
§ 1083(c)(2), which they have brought directly under § 1605A.
Although parties are free to make arguments in the
alternative, here Appellants have effectively renounced their
earlier position in a manner that requires us to entertain an
abstract legal question. See Md. Highways Contractors Ass’n,
Inc. v. Maryland, 933 F.2d 1246, 1249 (4th Cir. 1991) (“A case
is moot when it has lost its character as a present, live
controversy of the kind that must exist if we are to avoid
12
advisory opinions on abstract propositions of law.” (internal
quotations omitted)). This is not a traditional case of
mootness, abandonment, or waiver. 7 Its distinctiveness stems
from Appellants’ unusual decision to initiate a suit anchored in
an expressly contrary position while this matter was pending on
appeal. By bringing a new action which they previously claimed
was precluded by § 1083(c)(2), and expressly disclaiming
reliance on this provision, Appellants have, in effect, caused
the mootness of their constitutional challenge to that
provision. 8 See U.S. Bancorp Mort. Co. v. Bonner Mall P’ship,
513 U.S. 18, 24-25 (1994) (dismissing action as moot upon
finding that the party seeking review, as opposed to being
“frustrated by the vagaries of circumstance,” had “caused the
mootness by voluntary action”). Appellants’ representations
before us only reinforce this conclusion. They have explicitly
recognized the possibility of mootness when “parties lack a
legally cognizable interest” in the appeal of the district
7
We nevertheless characterize the issue as mootness, for
the sake of convenience.
8
In ruling on this issue, we are proceeding under the
assumption that the district court will give full and fair
consideration to Appellants' arguments regarding the existence
of a live controversy in their new, related action filed
directly under § 1605A in Kumar v. The Republic of Sudan, No.
10-cv-171 (E.D. Va. filed Apr. 15, 2010), and will exercise an
appropriate measure of restraint with regards to the well-
established principle of constitutional avoidance.
13
court’s judgment. Appellants’ Supp. Br. at 5 (quoting United
States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008)).
Appellants argue that if this Court finds that the instant
appeal has been rendered moot, the district court’s opinion
should be vacated. The relief of vacatur, however, is not a
foregone conclusion--it is an equitable remedy informed by
whether parties played a role in causing the mootness. See,
e.g., Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 117-19
(4th Cir. 2000). Under these circumstances, because Appellants
by their voluntary actions have caused the mootness, we do not
order vacatur of the district court’s judgment in this case.
See
Bancorp, 513 U.S. at 24, 26 (observing that whether an
opinion should be vacated on the basis of mootness is an
equitable question, requiring the court to consider “the nature
and character of the conditions which have caused the case to
become moot”) (internal quotations omitted); see also Tafas v.
Kappos,
586 F.3d 1369, 1371 (Fed. Cir. 2009) (denying vacatur of
the district court’s judgment, because “when a party procures
the conditions that lead to a case becoming moot, that party
should not be able to obtain an order vacating the lower court
decision that was adverse to that party”) (citing
Bancorp, 513
U.S. at 25); Fleming & Assocs. v. Newby & Tittle,
529 F.3d 631,
638 n.3 (5th Cir. 2008) (“Equitable vacatur generally is only
available in cases where the party seeking relief from the
14
judgment below did not cause the mootness by voluntary
action.”). Instead, we simply dismiss Appellants’ claim as
moot.
Finally, in light of Appellants’ argument that their state
law claims have been preempted by § 1605A, we assume, without
deciding, the preemption of those claims and thus affirm the
district court’s dismissal of them.
Accordingly,
IT IS ORDERED THAT:
(1) Appellants’ claim related to § 1083(c)(2) of the NDAA
be dismissed.
(2) The district court’s dismissal of Appellants’ state law
claims be affirmed.
AFFIRMED IN PART AND
DISMISSED IN PART
15
