In 2008, Congress amended the FSIA, including by making substantive and structural changes to the terrorism exception. Congress replaced the Section 1605(a)(7) exception with Section 1605A, an entirely new section passed as Section 1083 of the 2008 National Defense Authorization Act, or NDAA.The NDAA moved the terrorism exception to sovereign immunity to 28 U.S.C. Section 1605A(a), and thus took it out of the explicit reach of Section 1606 — because 1605A is not “section 1605 or 1607.” The NDAA also created an explicit federal cause of action, codified in 28 U.S.C. Section 1605A(c), that permits claims against foreign states for certain acts of terrorism by U.S. nationals, U.S. employees and their personal representatives, including family members.

The Supreme Court in Opati v. Republic of Sudan, No. 17–1268, 590 U.S. ___ (2020), has held that the Foreign Sovereign Immunities Act ("FSIA") allows certain plaintiffs to recover punitive damages from state sponsors of terrorism for actions that occurred before the relevant provision of the FSIA—28 U.S.C. § 1605A(c)—was enacted. In 1998, al-Qaeda detonated explosives outside U.S. embassies in Kenya and Tanzania.

Iran’s sovereign immunity was rescinded in that suit under the Foreign Sovereign Immunities Act’s exception for state sponsors of terrorism. 28 U.S.C. §1605A. A default judgment of $71.5 million was awarded, which Iran never paid.

nario has been tested–namely, where the court that issued the judgment found that jurisdiction existed using a standard that was expressly rejected by controlling appellate precedent in the reviewing court’s circuit. As such, there is a chance that a foreign state could challenge the application of full faith and credit on the grounds that the court which recognized the arbitration award against the foreign state did not consider whether minimum contacts were present and, thus, did not properly establish that it had personal jurisdiction over that state.Footnotes[1] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 20-36024, 2024 WL 441110 (9th Cir. Feb. 6, 2024).[2] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 2:18-CV-01360, 2020 WL 6286813, at *1 (W.D. Wash. Oct. 27, 2020).[3] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd, No. 20-36024, 2024 WL 441110 at *5 (9th Cir. Feb. 6, 2024) (Bumatay, J., dissenting).[4] 28 U.S.C. § 1330(b).[5] See 28 U.S.C. §§ 1605, 1605A.[6] Respondent qualified as a “foreign state” for purposes of the FSIA because it was an agency or instrumentality of the foreign state. 28 U.S.C. § 1603(b).[7] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 2:18-CV-01360, 2020 WL 6286813, at *3 (W.D. Wash. Oct. 27, 2020).[8] Id.[9] Id. at *3—4.[10] Id. at *7.[11] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 2:18-CV-01360, 2022 WL 36731 at *2 (W.D. Wash. Jan. 3, 2022).[12] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 20-36024, 2023 WL 4884882 at *1 (9th Cir. Aug. 1, 2023).[13] 614 F.2d 1247, 1255 (9th Cir. 1980).[14] 28 U.S.C. § 1605(a)(2).[15] Id. (emphasis added).[16] Id.[17] Id. at 1255, n. 5 (citing H. Rep. No. 54-1487, 94th Cong., 2d Sess. 13-14 (1976), reprinted in 1976 U.S. Code Cong. & Admin. News at pp. 6604, 6612).[18] 504 U.S. 607, 619 (1992).[19] Weltover, 504 U.S. at 619 (citing South Carolina v. Katzenbach, 383 U.S. 301, 323 (1966) holding “States of the Union are not ‘persons’ for pu

The first, 28 U.S.C. § 1610(g) of the Foreign Sovereign Immunities Act. (“FSIA”), subjects to attachment “the property of a foreign state . . . and the property of an agency or instrumentality of such a state” against which a plaintiff holds a judgment under 28 U.S.C. § 1605A. The second, § 201(a) of the Terrorism Risk Insurance Act of 2022 (“TRIA”) (codified at 28 U.S.C. § 1610, “Satisfaction of Judgments from Blocked Assets of Terrorists, Terrorist Organizations, and State Sponsors of Terrorism”) subjects to execution or attachment “the blocked assets of [a] terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party)”.

Their slender lifeline for the past several years has been the international aid community, including an array of non-governmental organizations (“NGOs”) and their combined efforts to supply emergency food and medical aid. Although Secretary Pompeo’s public statement indicates that OFAC will create a series of authorizations under the new U.S. sanctions regime against the Houthis to sustain the supply of such aid, requiring NGOs and their supporters to seek such prior OFAC approval before they can act will likely hamper and slow aid efforts and could have foreseeable life-or-death consequences for the millions in Yemen who are wholly dependent on such aid.1https://www.state.gov/u-s-announces-designation-of-cuba-as-a-state-sponsor-of-terrorism/.2https://www.state.gov/terrorist-designation-of-ansarallah-in-yemen/.3See 22 USC § 7207(b)(1); 31 CFR § 515.533(a)(4).4See 18 USC § 2333; 28 USC §§ 1605A, 1606.

Sudan had been assessed punitive damages based on a statute that had been enacted after the acts of terrorism had taken place. The statute in question, 28 USC § 1605A, created an express federal cause of action to compensate victims of acts of state-sponsored terrorism and also provided for punitive damages. The prior version of the statute, 28 U.S.C. § 1605 (a)(7), also contained an exception allowing for claims of state-sponsored terrorism, but it did not allow for punitive damages.

Sudan had been assessed punitive damages based on a statute that had been enacted after the acts of terrorism had taken place. The statute in question, 28 USC § 1605A, created an express federal cause of action to compensate victims of acts of state-sponsored terrorism and also provided for punitive damages. The prior version of the statute, 28 U.S.C. § 1605 (a)(7), also contained an exception allowing for claims of state-sponsored terrorism, but it did not allow for punitive damages.

Under amendments to the FSIA enacted in 2008, a foreign state will not be immune from suit in the United States in an action where “money damages are sought ... 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 committed by state officials. 28 U.S.C. § 1605A(a)(1). Notably, however, this exception only allows full access to U.S. courts where the defendant state is officially designated as a “state sponsor of terrorism” (e.g., Iran, Syria or North Sudan).

This morning, at the end of the Supreme Court’s Term before its summer recess, the Court granted certiorari in the following thirteen cases:Romag Fasteners, Inc. v. Fossil, Inc., No. 18-1233: Whether, under section 35 of the Lanham Act, 15 U.S.C. §1117(a), willful infringement is a prerequisite for an award of an infringer’s profits for a violation of section 43(a), id. §1125(a).Opati v. Sudan, No. 17-1268: Whether, consistent with this Court’s decision in Republic of Austria v. Altmann, 541 U.S. 677 (2004), the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages under 28 U.S.C. §1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute.GE Energy Power Conversion v. Outokumpu Stainless, No. 18-1048: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.Rodriguez v. Federal Deposit Insurance Corp., No. 18-1269: Whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common law “Bob Richards rule,” as three Circuits hold, or based on the law of the relevant State, as four Circuits hold.Babb v. Wilkie, No. 18-882: Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age,” 29 U.S.C. §633a(a), requires a pla