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Case number 14-5105 at L. James Owens at L versus Republic of Sudan.

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Ministry of External Affairs and Ministry of the Interior of the Republic of the Sudan Appellants.

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Islamic Republic of Iran.

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Ministry of Foreign Affairs at L. Mr. Curran for the Appellants.

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Mr. Neuberger and Mr. McGill for Appellees.

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James Owens at L. Mr. Curran, good morning.

[00:00:26] Speaker 01:
Good morning.

[00:00:26] Speaker 01:
May it please the Court.

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Christopher Curran for Sudan.

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The Foreign Sovereign Immunities Act in section 1605, capital A, like its predecessor, 1605A7, has four predicate acts that can support the assertion of lack of immunity on the part of a foreign sovereign.

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One of those is extrajudicial killing.

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Extrajudicial killing, like the other three predicate acts, has a meaning under international law and has a specific convention adopted by most nations of the world.

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In interpreting 1605 capital A, this court ought to abide by the definition of extrajudicial killing as that term is used in the international convention and is widely understood in international law generally.

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Now here the problem is, as the plaintiffs point out and as the district court found, 1605 A, when it defines extrajudicial killing, refers to the TVPA and specifically section 3 of the TVPA.

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Section 3 of the TVPA defines extrajudicial killing, but it doesn't include all aspects of it because some of those other aspects, like the state actor requirement, are in other portions of the TVPA, specifically Section 2.

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So the nub of the question here is,

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in determining what extrajudicial killing means, should this court focus exclusively on section three, or should it consider the meaning of the term as it is meant more broadly in the TVPA and in other contexts?

[00:02:14] Speaker 05:
Well, don't we have to follow what the statute tells us the definition is in 3A?

[00:02:19] Speaker 01:
Well, I think what this court needs to do is to use all of the interpretive tools available to it under a conventional statutory analysis.

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And I submit that when those tools are all considered,

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it becomes apparent that Congress intended for extrajudicial killing to mean what it means in the Geneva Convention, or what the term summary execution means in the Geneva Convention, and what the term extrajudicial killing means in other international law parlance.

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And Judge Henderson, I get there in a couple of ways.

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Number one, I note that at the outset of section three of the TVPA, that the language reads, for purposes of this act,

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Okay, I submit that that suggests at least, maybe isn't decisive, but it suggests that the definition ought to be read in the context of that act as a whole.

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And then another point here.

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I think analyzing just 1605 Capital A and its predecessor, one can conclude that Congress must have meant extrajudicial killing in the broader sense.

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And for that, I point the court to the definition of aircraft sabotage.

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Aircraft sabotage is also defined in 1605, capital A, H. And there, Congress wrote that that term shall be used as that term is used in the aircraft sabotage convention, which is the Convention on Aircraft Security.

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In fact, that Article 1 of that convention doesn't even use the term aircraft sabotage.

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My point there being, we cannot attribute to Congress the precision and meticulousness that we might expect of others.

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And that's apparent.

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I don't know that I wouldn't take the opposite position and say, when they meant for us to look at international conventions, they said so.

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Are you saying there are gaps in 3A?

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gaps in the definition and that they're filled in by international law?

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No, no, no.

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I'm saying that Section 3A needs to be considered with Section 2 and the context of the TVPA.

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Because the TVPA itself in Section 2 makes it clear that an extraditional killing can only be done by a state actor.

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And that is the sense of the term under international law.

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The plaintiffs in the district court, I submit, are being myopic in analyzing only the remaining aspects of extraditional killing in Section 3A and are not considering the state actor requirement.

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And where I'm getting at with my analogy to the aircraft sabotages, that proves that Congress was painting with a broad brush here.

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When it referred to the predicate acts and the definitions, extrajudicial killing, as well as aircraft sabotage, and torture and hostage taking, it was referring to those concepts.

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as they're meant in the relevant conventions.

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And it's taking too narrow of a view to ignore the state actor aspect of extrajudicial killing.

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Mr. Kern, if you're right, how do you relate that to the requirement of material support, the element of material support?

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You have a state actor providing material support to another state actor who is engaging in the killing?

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Well, I submit it doesn't have to be the same state act, but the same foreign state, right?

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In fact, I would refer to the allegations in this case, which are that Iran and Sudan together engaged in material support for a terrorist act.

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There could easily be a situation where one foreign state conducts an act, and there is an allegation that another foreign state provided material support.

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And in that situation, the second foreign state would be providing material support for an act by a state actor.

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So that's certainly one scenario where that interpretation would hold.

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It's a little narrow.

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Well, it may be.

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But not all of the predicate acts in 1605 Capital A require state actors.

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So the provision as to material support may be most relevant as to the predicate acts that don't require state actor action.

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I think hostage-taking is one that does not require a state actor.

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So in that situation, if you have a foreign state that provides material support to a hostage-taking by a private party, the act would fit naturally in that scenario.

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And from here, I pivot.

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Let's consider the alternative.

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If extrajudicial killing doesn't mean what it commonly means in international law, then it must mean, as the plaintiffs argue and as the district court found, that it means garden variety murder?

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Any sort of premeditated killing?

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Is that a sensible interpretation to attribute to Congress here?

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Is it plausible that Congress intended for

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Garden variety premeditated murder to be a predicate act under 1605 capital A?

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I don't think so, and we outline in our brief one hypothetical, but we could think of many others where there is a premeditated killing of some type and there's an allegation that a foreign state provided material support for that killing.

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whether it be the training of a military person, whether it be providing welfare or other financial support by the state.

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I suppose that a Sudanese soldier, armed as he would be, maybe just a pistol, is in a bar fight with someone who has an act on the cause of action under the staff chair and kills that person.

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The material support was provided by the government in arming this soldier.

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I would think not.

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Now, let's put aside for a minute the question of deliberateness.

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Let's say the bar fight was a slow-moving fight where there was a conscious deliberation before the shooting.

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That's the case.

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He climbs the garage and he finds this guy and shoots him in the bar.

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Okay.

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I think it's beyond the pale to consider that 1605 Capital A was designed to hold a foreign state libel for material support in that kind of a situation.

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What's lacking?

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Well, what's lacking is it's not a state actor acting in the course of his agency or employment, which is a requirement of 1605 Capital A. So it's the state actor requirement.

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So he's not acting within the scope of his agency?

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Certainly not.

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If it's a bar fight and he shoots someone,

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So that would not be a summary execution under international law, because it's not... Let's call it friendly fire.

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So he kills the person by essentially thinking he's a terrorist or something.

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wrongly.

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Well, in that situation – well, I guess it depends – is the soldier in that case acting in the course of his agency and employment?

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Well, he's supposed to do these things.

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He just makes a mistake.

[00:10:17] Speaker 04:
So you're saying it's not deliberated then?

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It's deliberated.

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He thinks this person's a terrorist, but it turns out it's an American soldier.

[00:10:25] Speaker 01:
Yeah.

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The final sentence of the definition of extrajudicial killing under the TVPA excludes acts that are not a violation under international law.

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And I think that there may well be a basis for that to take away that scenario from the definition.

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But it may be- I don't know.

[00:10:49] Speaker 04:
I thought that had to do with acts of war.

[00:10:52] Speaker 01:
Well, maybe, certainly some acts of war, but also maybe drone strikes and certain other things that arguably may be permitted under international law that constitute deliberated killings.

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But if it's friendly fire, and let's say it's the assassination of a suspected terrorist, and if the soldier is acting in the course of his agency or employment, yeah, that's an extra-divisional killing.

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And in fact, what's happening now in the Philippines, this is in the papers every day, where there are allegations that the president of the country is deputizing government officials to go out and kill people without trials.

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That is a classic extrajudicial killing for which a country could be held liable under 1605 Capital A if they're a state sponsor of terrorism and designated as such.

[00:11:43] Speaker 05:
Let me ask you this, why even if we use the international law, we use section 2, based on what Judge Bates has found,

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extensive cooperation between the Sudanese government and al-Qaeda and more than cooperation, giving them false passports, sharing their intelligence, why couldn't you argue that the al-Qaeda individuals under apparent authority of a foreign nation, that is Sudan,

[00:12:19] Speaker 01:
Yeah, well, I don't think there is any allegation in this case that al-Qaida was acting as an agent for Sudan or any other foreign country.

[00:12:25] Speaker 05:
Well, it doesn't say agent.

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It says apparent authority.

[00:12:29] Speaker 01:
Yeah, well, I don't think that's alleged.

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And, Judge Henderson, maybe I can pivot based on your question to the causation evidence.

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We dispute that there was any admissible evidence linking Sudan or showing Sudan gave material support to al-Qaida or that any such support was approximate cause of the embassy bombings.

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The district court accepted at face value in full statements by expert witnesses that were not supported by any factual record.

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In some cases, the expert statements had there was no basis whatsoever or it was contradicted by what was in the record.

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Two quick examples.

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One, and I think these are basically the centerpieces of the district court's analysis.

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Number one, the statement that there was a letter inviting Osama bin Laden to come to Sudan, and that letter allowed Osama bin Laden and his comrades to move around as though they had diplomatic immunity within the country.

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All three of the plaintiff's experts said that in one form or another in the hearing.

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There is no basis for that.

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When one of those experts, Mr. Coleman, was asked the basis for his statement, he referred to the trial testimony of Alfadal.

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Alfadal's testimony does not support that statement.

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It does not support that there was any letter to Osama bin Laden or that there was any invitation at all or that the letter gave anyone diplomatic immunity or any other sort of free ride in the country.

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assertion was way overblown based on a letter that al-Fadl testified about to a company about import and export rights.

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Secondly, and critically, Coleman also talked about Sudan providing weapons and explosives to al-Qaeda.

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And Coleman gave no basis for that.

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We have scrubbed the record and looked through all of al-Fadl's testimony.

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There's nothing to support that.

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So we have expert witnesses speaking without foundation, without any factual basis, the district court accepting that as though these experts were percipient witnesses.

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Coleman was in high school during the time of these events.

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He has no percipient basis for any of those statements that he made.

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And the district court accepted uncritically and without any question these bald assertions by these experts that should not have been admitted under the federal rules of evidence.

[00:14:56] Speaker 04:
You had submitted earlier in the litigation two affidavits also, right?

[00:15:06] Speaker 01:
My prior counsel did, but I know what you're referring to.

[00:15:08] Speaker 04:
And they were submitted in support of a motion to vacate the default judgment.

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I don't think that's right.

[00:15:20] Speaker 04:
I'm sorry, they were referred to there.

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They were submitted four years earlier.

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That's right.

[00:15:27] Speaker 04:
And in the reference in the motion debate, you say, all told, little if any admissible evidence was provided by the plaintiffs to support the court's findings of fact, but you're saying that.

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Indeed, plaintiff submissions, for the most part, were no more admissible than the declarations by former Ambassador

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Yes.

[00:16:02] Speaker 01:
Yeah.

[00:16:04] Speaker 01:
Well, first of all, under Kim, this court's decision in Kim, any evidence submitted in a 1608E default proceeding has to be admissible under federal rules of evidence.

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Those affidavits, like most of the materials submitted by the plaintiffs,

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does not satisfy any of the exceptions to hearsay under the federal rules of evidence.

[00:16:26] Speaker 01:
So we were pointing out that, hey, if you're going to open the floodgates and let in inadmissible evidence, including expert Ipsi Dixit, then you ought to consider at least these declarations by Percipian witnesses.

[00:16:38] Speaker 04:
The statement I read to you was ambiguous in that respect.

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It reads to say,

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their evidence is no better than ours, which is inadmissible.

[00:16:48] Speaker 04:
No, it doesn't say which it is.

[00:16:49] Speaker 04:
No, it is no more admissible than ours.

[00:16:52] Speaker 04:
But you didn't say ours is admissible as theirs.

[00:16:56] Speaker 01:
Well, if there's ambiguity there, I apologize.

[00:16:59] Speaker 04:
But your brief doesn't argue in favor of relying on those.

[00:17:02] Speaker 01:
We do not.

[00:17:04] Speaker 01:
It's more of a rhetorical point that, again, if the floodgates are going to be open to inadmissible evidence, then consider that inadmissible evidence too, which is... You have no objections to Judge Bates as having not considered this.

[00:17:15] Speaker 04:
It's only that he did consider the other.

[00:17:17] Speaker 01:
I think that's fair.

[00:17:18] Speaker 08:
I thought in your brief you argued that the judge did not take into account any evidence that lent doubt to what the experts were saying.

[00:17:32] Speaker 01:
No, we're not suggesting that the plaintiffs had an obligation to put forward evidence that was exculpatory of Sudan.

[00:17:40] Speaker 08:
No, no, no.

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I'm following up on Judge Ginsburg's point about these two affidavits and also the State Department and CIA reports.

[00:17:47] Speaker 01:
Yeah.

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Well, we think that the experts naked statements without supporting the record.

[00:17:54] Speaker 08:
Just be clear.

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I read your brief somewhat differently, and you're telling me that indeed you're saying your affidavits also were inadmissible.

[00:18:05] Speaker 08:
And so the district court made no error in giving no consideration whatsoever to those affidavits.

[00:18:16] Speaker 01:
Yeah.

[00:18:17] Speaker 08:
I understand your argument that if you're going to look at inadmissible evidence for one side, you have to look at inadmissible evidence for the other side.

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But I just want to be clear what your argument is about those affidavits.

[00:18:30] Speaker 01:
Well, I guess there's a primary argument and there's a fallback.

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The primary argument certainly is that only admissible evidence should have been considered.

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The expert assertions shouldn't have been considered.

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And the affidavits we submitted also should not have been considered because they were not admissible.

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But if the floodgates are going to open to inadmissible evidence, then the court has an obligation to be even-handed and consider the plaintiffs' inadmissible evidence, but the defendants' inadmissible evidence at the same time.

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Is that in your opening statement?

[00:19:00] Speaker 01:
I think it is.

[00:19:01] Speaker 04:
Yeah, that's right.

[00:19:02] Speaker 04:
All right, we'll check on that.

[00:19:06] Speaker 04:
Judge Bates said expert testimony is often not based on admissible facts, right?

[00:19:12] Speaker 04:
That's why you have the expert there.

[00:19:14] Speaker 04:
In a case like this, a terrorism case where you're not going to get ordinary business records from a terrorist organization, there's no practical alternative to allowing in the evidence of a qualified expert, even without admitting foundational evidence.

[00:19:35] Speaker 01:
Well, I have a couple of responses to that.

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Number one, Kim is pretty categorical in saying the federal rules of evidence apply.

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Number two, in the circumstances here, I don't know why it would have been difficult for the plaintiffs to get actual admissible evidence, given that there were convictions of individuals for perpetrating the embassy bombings.

[00:19:53] Speaker 01:
There are four people in federal prison, and there's a cooperator who testified against them, all in the United States.

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So in the circumstances of this case, I don't understand why there couldn't have been admissible evidence brought forward.

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And secondly, yes, experts can sometimes rely on inadmissible evidence in rendering their opinions, but a court cannot accept

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the inadmissible assertions of an expert as the factual basis for issuing a ruling against a defendant.

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Here, there was, in our submission, quite literally no admissible evidence to support the provision of material support by Sudan to al-Qaeda.

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None.

[00:20:35] Speaker 04:
And an expert... So are you saying in light of Kim that allowing in hearsay here, expert testimony without foundational facts, is an abuse of discretion?

[00:20:53] Speaker 01:
Well, I think it's at least an abuse of discretion.

[00:20:57] Speaker 01:
You think this is an error of law?

[00:20:59] Speaker 01:
Yes, I think it's an error of law.

[00:21:00] Speaker 01:
I think it's a failure to apply the federal rules of evidence, which are required not only by Kim, but even the federal rules of evidence themselves enacted by Congress say that they govern proceedings in federal court.

[00:21:10] Speaker 04:
What did Judge Bates say about this?

[00:21:13] Speaker 01:
Judge Bates said a couple of things.

[00:21:14] Speaker 01:
He said, well, first of all, I can rely just on the ultimate opinions.

[00:21:17] Speaker 01:
I don't even need to rely on facts.

[00:21:21] Speaker 01:
And our response to that is you can't accept and admit ultimate opinions that have no factual predicate.

[00:21:29] Speaker 01:
And so we have a fundamental dispute with the plaintiffs and the district court as to the district court's reliance on hearsay assertions by the experts to provide the facts that supported the $10 billion judgment at issue here.

[00:21:50] Speaker 05:
Well, let me ask you something, because Judge Bates didn't just rely on experts.

[00:21:54] Speaker 05:
I mean, there are pages going through the whole history of this President al-Tarabi, whatever, and the Khartoum meeting, and then our own government.

[00:22:05] Speaker 05:
in a 1991 and he goes forward from there in the State Department's patterns of global terrorism, how worried they are about Sudan and its growing connection with terrorist organizations.

[00:22:18] Speaker 05:
Are you saying that this is tainted as well or that this is not based on facts?

[00:22:26] Speaker 01:
Yes.

[00:22:26] Speaker 01:
And I'm saying it's not admissible evidence.

[00:22:28] Speaker 01:
Certainly not.

[00:22:29] Speaker 01:
And under this Court's rulings, that kind of intelligence reporting is not admissible evidence.

[00:22:37] Speaker 05:
And so what is wrong with the State Department's Patterns of Global Terrorism report exactly?

[00:22:43] Speaker 05:
What is inadmissible about that?

[00:22:45] Speaker 01:
That is not a government report based on a duty to investigate and having findings of fact.

[00:22:51] Speaker 01:
It is not, there's no exception to the hearsay rule that would allow the admission of that in court.

[00:22:59] Speaker 01:
And Your Honor, I agree that the district court's opinion superficially looks meaty.

[00:23:05] Speaker 01:
It's got a lot of pages, it's got a lot of sites.

[00:23:07] Speaker 05:
Well, are you challenging that we put Sudan on the terrorist list?

[00:23:11] Speaker 05:
No, not challenging that.

[00:23:14] Speaker 01:
All right.

[00:23:15] Speaker 01:
But that's...

[00:23:16] Speaker 01:
That's a matter of public record.

[00:23:18] Speaker 01:
That is an official determination that's admissible in court.

[00:23:22] Speaker 01:
But as this court found in the first time that this case was up on appeal, that's merely a necessary condition for liability.

[00:23:31] Speaker 01:
It doesn't establish liability.

[00:23:33] Speaker 01:
The district court's opinion here finding liability, finding material support, finding proximate causation is based almost entirely on assertions by expert witnesses.

[00:23:44] Speaker 01:
Almost all of the sites in the district court's opinion are to

[00:23:48] Speaker 01:
the expert statements.

[00:23:50] Speaker 01:
And when we in our opening brief said they can't do that, they can't rely just on the expert statements without factual evidence to support that, the plaintiffs could not come forward in their brief to identify any facts underlying the expert statements.

[00:24:04] Speaker 01:
These are paid experts who are asserting without personal knowledge or any other basis, any other evidentiary basis,

[00:24:13] Speaker 01:
facts about Sudan providing weapons and explosives to al-Qaeda.

[00:24:20] Speaker 01:
How can an American lawyer, Coleman, testify in federal court to those facts and have that accepted by a court as the basis for a $10 billion judgment against a foreign sovereign?

[00:24:33] Speaker 05:
What is your objection to the admissibility of the TV

[00:24:41] Speaker 05:
film showing Bin Laden and the President and al-Turabi walking around together.

[00:24:54] Speaker 05:
I mean, it's hard.

[00:24:55] Speaker 05:
I can't imagine any of us walking around with the President of the United States.

[00:25:00] Speaker 01:
Well, you can certainly imagine a big commercial investor having a meet and greet with the President of the United States.

[00:25:10] Speaker 01:
Who happens to be a terrorist?

[00:25:12] Speaker 01:
Well, when was he a terrorist, Your Honor?

[00:25:14] Speaker 01:
The plaintiffs cannot cite any terrorist act by Al-Qaeda or by Osama bin Laden predating

[00:25:23] Speaker 01:
their residency in Sudan.

[00:25:26] Speaker 01:
This country, the United States of America, has a lot of people who live here who later commit terrorist acts.

[00:25:31] Speaker 01:
Do we have to point to Fort Hood, to San Bernardino County, toward Orlando, Florida, toward Oklahoma City?

[00:25:39] Speaker 01:
Did the United States provide material support for those acts because some of them were trained military or some of them received benefits from our government?

[00:25:46] Speaker 05:
If your position is that the plaintiffs had to prove that Ben Laden was a terrorist before they could bring an action under the FSIA, I think you're totally wrong.

[00:26:02] Speaker 01:
I submit that proximate causation has an aspect of foreseeability.

[00:26:06] Speaker 01:
I think that's established by the Paralline case.

[00:26:09] Speaker 01:
I think that's established by the Kilburn case.

[00:26:11] Speaker 01:
I think it's established by Rothstein in the Second Circuit.

[00:26:15] Speaker 01:
So knowing who you're interacting with is an important part of the proximate causation analysis.

[00:26:21] Speaker 01:
And our country did not designate either Osama bin Laden or al-Qaida as

[00:26:28] Speaker 01:
terrorists until well after he was gone out of Sudan.

[00:26:32] Speaker 01:
Sudan kicked him out in 1996, two years before the embassy bombings.

[00:26:39] Speaker 01:
How can you fault Sudan for taking measures to expel someone that they suspected of wrongdoing, and then it turns out that they were right?

[00:26:53] Speaker 04:
When did they?

[00:26:54] Speaker 04:
Would you say that they were identified?

[00:26:58] Speaker 04:
In 98 before or after the bomb?

[00:27:03] Speaker 01:
In 98 and 99 was it before or after the bombings?

[00:27:07] Speaker 01:
It's in our brief, your honor.

[00:27:13] Speaker 04:
it's thirty thirty-four

[00:27:28] Speaker 01:
Earlier.

[00:27:30] Speaker 01:
Earlier.

[00:27:31] Speaker 01:
Right after he left Afghanistan with the mujahideen supported by the United States.

[00:27:35] Speaker 04:
And he's invited out in 96.

[00:27:37] Speaker 01:
He's not invited out, he's expelled.

[00:27:39] Speaker 01:
And there's conflicting evidence as to whether he was offered to the United States at that time or not.

[00:27:44] Speaker 04:
And then in 98, this is the first major successful terrorist attack by al-Qaeda.

[00:27:51] Speaker 01:
Right, and therefore Osama bin Laden and al-Qaeda are designated by the U.S.

[00:27:56] Speaker 01:
at that time.

[00:28:00] Speaker 01:
So we have not only faulty evidence supporting material support, but we have an attenuation between that alleged support and the acts that undermine any assertion of proximate causation.

[00:28:20] Speaker 05:
Do you have any more questions?

[00:28:22] Speaker 05:
No.

[00:28:23] Speaker 05:
All right.

[00:28:23] Speaker 05:
We'll give you some time to reply.

[00:28:24] Speaker 01:
Thank you.

[00:28:24] Speaker 01:
You've been generous with your time.

[00:28:25] Speaker 01:
I appreciate it.

[00:28:26] Speaker ?:
OK.

[00:28:28] Speaker 05:
Mr. Neuberger?

[00:28:30] Speaker 05:
Good morning.

[00:28:32] Speaker 02:
Good morning.

[00:28:33] Speaker 02:
May it please the court?

[00:28:34] Speaker 02:
I'm Stuart Neuberger.

[00:28:36] Speaker 02:
I represent the Americans who were killed in the Nairobi embassy bombing in August of 1998.

[00:28:41] Speaker 02:
And I will address the causation and the extrajudicial killing issues.

[00:28:46] Speaker 02:
I'm sharing my time with Mr. McGill, who will address the other issues that affect both American and non-American victims and their families.

[00:28:57] Speaker 02:
One issue that was not brought up by Mr. Curran, but I think is critical.

[00:29:01] Speaker 02:
Just so I'm clear.

[00:29:01] Speaker 02:
I'm sorry.

[00:29:02] Speaker 07:
Are you making any distinction between citizens and non-citizens?

[00:29:07] Speaker 02:
No, not as part of my argument, Your Honor.

[00:29:09] Speaker 02:
No.

[00:29:09] Speaker 02:
I was just outlining who's going to address what issues.

[00:29:11] Speaker 02:
I'm sorry if that was confusing.

[00:29:15] Speaker 04:
And I'm sorry.

[00:29:15] Speaker 04:
You're speaking on behalf of?

[00:29:17] Speaker 02:
My clients are, sadly, the Americans who were killed in the Nairobi embassy bombing in August 1998.

[00:29:25] Speaker 02:
One issue that was not discussed by Mr. Curran, but which we think is critical for this court's role of reviewing all these years of Judge Bates' hard work, is that Sudan made its first tactical decision in the underlying litigation to appear in the original Owens case after its initial default, and then made another tactical decision, a deliberate choice, to then come into the case and litigate.

[00:29:53] Speaker 02:
A number of issues.

[00:29:54] Speaker 02:
both in front of Judge Bates and this court in the first Owens' appeal.

[00:29:58] Speaker 02:
And then it made another tactical decision to walk away from the litigation, apparently not satisfied with this court's affirming Judge Bates' denial of its sovereign immunity jurisdictional defense, until it made yet another tactical decision to come back into the litigation

[00:30:18] Speaker 02:
and raise at the very end, after Judge Bates had decided liability, after he had spent a lot of time with special masters calculating the individual victim and family member's damages.

[00:30:29] Speaker 02:
And then they made another tactical decision to take appeals to this court, even while they were litigating the vacator request before Judge Bates.

[00:30:37] Speaker 08:
Was the district court obligated to examine your challenges to the ambassador's affidavit, explaining Sudan's

[00:30:50] Speaker 08:
what you call walking away.

[00:30:53] Speaker 02:
In looking at how that was raised, as I believe one member of the panel noted, Sudan brought in those two affidavits in its first entrance into the case 10 years ago, 12 years ago.

[00:31:05] Speaker 08:
Excuse me.

[00:31:06] Speaker 08:
I'm referring to the affidavit attached to the motion

[00:31:10] Speaker 02:
Yes, I'm referring to the – are you talking – there's the ambassador's affidavit – I'm sorry.

[00:31:15] Speaker 08:
I'm referring to the ambassador's affidavit explaining what was going on during these years.

[00:31:21] Speaker 02:
I misunderstood your question.

[00:31:22] Speaker 02:
I thought we were referring to the earlier affidavits.

[00:31:23] Speaker 02:
I apologize.

[00:31:25] Speaker 02:
The ambassador's affidavit was essentially submitted to support the excusable neglect position that Sudan took for a vacator.

[00:31:34] Speaker 02:
And Judge Bates, in I believe an area where he enjoys broad discretion, ruled that considering that affidavit from his excellency, there was not grounds to vacate for excusable neglect.

[00:31:46] Speaker 08:
That was essentially the thrust of... So my question to you was, was the district court obligated to examine the affidavit since

[00:31:57] Speaker 08:
it was before him and it made assertions.

[00:32:01] Speaker 08:
And your argument today about Sudan's motivation, et cetera, certainly is contradicted by that affidavit.

[00:32:11] Speaker 08:
And my only question is, did the district court have any obligation to examine the assertions in the affidavit?

[00:32:20] Speaker 08:
Or to accept them as true?

[00:32:23] Speaker 02:
I think that he did what he is required to do under Rule 60.

[00:32:28] Speaker 02:
He examined the affidavit.

[00:32:30] Speaker 02:
He compared it to the standards for vacator on 60B1, which is what most of that was.

[00:32:35] Speaker 08:
In other words, the district court cited two congressional resolutions in 2006 and 2007.

[00:32:43] Speaker 08:
He had the motions by various council to withdraw because of problems of communication.

[00:32:49] Speaker 08:
He knew that there was no working email system in Sudan at the time, according to Sudan's council.

[00:33:00] Speaker 08:
There was a letter in 2008 of an inquiry, but we have no idea what that was about or anything.

[00:33:10] Speaker 08:
So I'm just trying to understand

[00:33:13] Speaker 08:
in that context, whether the district court had any obligation to inquire?

[00:33:19] Speaker 02:
Well, if the question is what was going on with Sudan, I would note, and you can judicially notice this because it's well known, at all relevant times for this entire period, for 14 years, the United States of America and Sudan have enjoyed full diplomatic relations.

[00:33:35] Speaker 02:
And Sudan has had an embassy here in Northwest Washington every minute of every day through that entire time frame.

[00:33:42] Speaker 02:
There is no allegation like this is Iran, or as we saw 10 years ago with Libya, where we had no diplomatic relations.

[00:33:49] Speaker 02:
We had full diplomatic relations.

[00:33:51] Speaker 08:
That's not the issue, Counsel, and you know it.

[00:33:54] Speaker 08:
My question goes to, I mean, hypothetically, the United States is engaged in a civil war.

[00:34:04] Speaker 08:
There is litigation against the United States pending in France.

[00:34:09] Speaker 08:
How much attention was

[00:34:13] Speaker 08:
the United States government paying to litigation in France, notwithstanding that at times there were lawyers in the case.

[00:34:24] Speaker 08:
I'm just trying to understand this situation.

[00:34:27] Speaker 08:
And the ambassador paints a picture that is quite different from the district court's findings.

[00:34:33] Speaker 08:
And ultimately, as I read the district court's findings, it is that he received neither an email nor a letter.

[00:34:41] Speaker 08:
My question is, the district court wasn't, I suppose, assuming Sudan was going to contact him personally, but these lawyers should have alerted the district court.

[00:34:55] Speaker 08:
Is that what the district court was getting at?

[00:34:57] Speaker 02:
Well, I don't know what was behind Judge Bates' thinking, Your Honor.

[00:35:00] Speaker 08:
And that's my point when you're saying tactical decisions were made by Sudan.

[00:35:05] Speaker 08:
Do we know on this record?

[00:35:08] Speaker 08:
That's all I'm trying to understand.

[00:35:09] Speaker 02:
Yes, yes, we do know a lot.

[00:35:10] Speaker 02:
And that, I think, is the thrust of my presentation to you, Judge Rogers.

[00:35:15] Speaker 02:
We know what they did.

[00:35:16] Speaker 02:
And I might add, after this Court affirmed the denial of sovereign immunity in Sudan, for whatever reasons,

[00:35:23] Speaker 02:
good, bad, or indifferent, decided to not participate in the merits or in damages.

[00:35:28] Speaker 02:
We know Judge Bates did do one thing back in 2011.

[00:35:31] Speaker 02:
After he issued his extensive findings on liability and material support about the embassy bombings, he made sure that that ruling was translated into Arabic.

[00:35:42] Speaker 02:
and served by the clerk of the district court to the State Department and through diplomatic channels to the government of Sudan.

[00:35:49] Speaker 02:
We know that was done and that's in the record.

[00:35:51] Speaker 08:
So there could be no excusable neglect if a party is actually served.

[00:35:57] Speaker 02:
That is correct.

[00:35:57] Speaker 02:
And that's one of the bases that Judge Bates found.

[00:36:00] Speaker 02:
He, of course, relied on several.

[00:36:02] Speaker 02:
He also made the point in his vacator denial that whatever reasons Sudan may have had that were of a temporal moment legitimate certainly were no longer available to them over that great extensive time, particularly

[00:36:16] Speaker 02:
when they were talking about, well, we had floods in a certain year, or we had certain issues.

[00:36:20] Speaker 02:
Of course, Sudan and later South Sudan have experienced some very traumatic episodes.

[00:36:26] Speaker 02:
But Judge Bates looked at the entire timeframe of the litigation, and he examined carefully the reasons that were put forward by the ambassador on the vacator motion.

[00:36:35] Speaker 02:
And he said, there's no basis for me to say it's excusable.

[00:36:39] Speaker 08:
So was he finding that the ambassador made false statements?

[00:36:44] Speaker 02:
No.

[00:36:45] Speaker 02:
And he did not need to make a finding that it was a false statement.

[00:36:48] Speaker 02:
The burden on Sudan, and of course under Rule 60B1, the burden is solely on Sudan, was to demonstrate through proper evidence

[00:36:56] Speaker 02:
that there was inexcusable neglect, not just negligence.

[00:37:00] Speaker 02:
It has to be excusable.

[00:37:01] Speaker 02:
And Judge Bates's careful consideration of that affidavit and the entire record of 14, 15 years of in and out and in and out was the basis for Judge Bates saying, I am not going to vacate these judgments.

[00:37:15] Speaker 02:
So I don't mean to belabor that point because I know there are other issues pending before the court.

[00:37:21] Speaker 02:
And if I may, I'd like to briefly touch on causation.

[00:37:25] Speaker 05:
Well, before you do that, could you respond to your colleagues?

[00:37:31] Speaker 05:
argument about the definition of extrajudicial killing?

[00:37:34] Speaker 02:
Yes, certainly.

[00:37:35] Speaker 02:
I was going to do that second, but I'm happy to do it first.

[00:37:37] Speaker 02:
I think it's very clear this is a situation where Congress has provided one exclusive way for victims and their families to bring claims against state sponsors of terror, like Sudan.

[00:37:50] Speaker 02:
And remember, it has been on the terrorism list for providing material support for terrorist states since 1993, officially and formally, as this Court noted in the first appeal.

[00:38:00] Speaker 02:
But more importantly, with regard to the mechanism that we use to bring claims against states in the district courts, the plain language of the FSIA makes clear that the only part of the TVPA that is relevant to this statutory construction issue is the Section 3 definition section of the TVPA.

[00:38:22] Speaker 02:
And Mr. Curran, both below and here, has attempted to import

[00:38:27] Speaker 02:
into the Foreign Sovereign Immunities Act, a provision, Section 2 of the TVPA, which is clearly not what Congress even referred to.

[00:38:37] Speaker 02:
And I believe, Judge Henderson, you said a little while ago, if Congress had intended to, they know how to.

[00:38:43] Speaker 02:
If Congress had wanted to import into the FSIA Section 2 of the TVPA, it could have.

[00:38:49] Speaker 02:
But there's a very good reason why it didn't.

[00:38:52] Speaker 02:
The TVPA is pursuing individuals.

[00:38:54] Speaker 02:
The FSIA is pursuing sovereign states on the end of the year.

[00:38:58] Speaker 02:
In this regard, terrorist states listed by the Secretary of State.

[00:39:02] Speaker 02:
We are talking about entirely different legislative vehicles for pursuing claims in the district court.

[00:39:09] Speaker 02:
That is why, under a plain language reading of both the FSIA, whether the earlier version or the 2008 version, it doesn't matter.

[00:39:18] Speaker 02:
It's the identical language.

[00:39:19] Speaker 02:
And I remind the court, we are here and we have proven, at least to Judge Bates, a satisfaction.

[00:39:26] Speaker 02:
Not that Sudan drove the truck into the two embassies in August 1998.

[00:39:31] Speaker 02:
Our job was to allege and then prove that it provided material support to al-Qaeda when al-Qaeda drove these trucks with the suicide bombers.

[00:39:42] Speaker 02:
That is the evidence that we relied on, and that is the evidence that Judge Bates relied on.

[00:39:47] Speaker 02:
This is not a case of where we even allege that Sudan carried out these horrific attacks.

[00:39:53] Speaker 02:
And I think that's the big difference between what I'm putting forward and what Mr. Curran put forward.

[00:39:58] Speaker 02:
I hope that answers your question, Judge Henderson, on the statutory interpretation.

[00:40:02] Speaker 02:
I might add, I think Congress would be shocked to even have a sense that attacking the United States embassies is somehow not an extrajudicial killing.

[00:40:11] Speaker 02:
In 1996, when it also enacted the Plato Amendment, which was about bombings, Congress also had already noted that the 1983 attack on our embassy in Beirut was one of the grounds

[00:40:23] Speaker 02:
for passing the 1996 terrorism amendment.

[00:40:27] Speaker 02:
That is why we're confident this is what Congress meant.

[00:40:30] Speaker 02:
Now, with regard to causation, I think what's very clear is Mr. Curran has made an argument about the experts and no facts.

[00:40:36] Speaker 02:
I would remind the court, and it's extensively discussed in the trial transcripts and two times by Judge Bates, 2011 and 2016, Mr. Simon, one of the witnesses who testified, was employed at the National Security Council at the White House

[00:40:51] Speaker 02:
And his job was to work on terrorism issues that were directly relevant to his testimony before Judge Bates.

[00:40:59] Speaker 02:
He was not some law professor brought in or a lawyer who didn't know anything.

[00:41:03] Speaker 02:
This is someone who was a percipient witness as well as a qualified expert, which Judge Bates points out in detail in his findings in 2011 as well as 2016.

[00:41:14] Speaker 02:
And I'm sorry.

[00:41:16] Speaker 08:
Is the word percipient a term of art here?

[00:41:19] Speaker 02:
Well, it's been used by Sudan.

[00:41:20] Speaker 02:
That's why I'm borrowing it with permission.

[00:41:23] Speaker 02:
I would say it's more someone who has first-hand knowledge.

[00:41:26] Speaker 08:
Well, what does it mean?

[00:41:28] Speaker 08:
Does it mean I've read a lot of books?

[00:41:31] Speaker 02:
No, I would think it's closer to having first-hand knowledge from your work and from your life experience as comparing to studying the work of others.

[00:41:39] Speaker 08:
And Mr. Simon concluded... Well, there was some suggestion in the district court that

[00:41:46] Speaker 08:
It had, I mean, I looked the word up because I wasn't clear what it meant in this context.

[00:41:52] Speaker 08:
We're not talking about eyewitnesses necessarily.

[00:41:56] Speaker 02:
No, no, Mr. Simon was not in Nairobi when the bomb went off.

[00:41:58] Speaker 02:
That is correct.

[00:42:00] Speaker 08:
But we are speaking of people who either infiltrated or had some direct knowledge of as opposed to mere, and I say that in quotes, scholars.

[00:42:14] Speaker 02:
Correct, and Mr. Simon clearly falls into the category of someone whose job, his professional duties, were working at the National Security Council at the White House on these issues during this relevant time frame.

[00:42:28] Speaker 08:
But I think the argument, if I understand it, is that his analysis is as good as the information he is receiving.

[00:42:37] Speaker 02:
Yes, and my point is he was receiving this in real time at the time of

[00:42:42] Speaker 02:
the relevant actions by Sudan leading up to and after the bombings.

[00:42:47] Speaker 02:
I'll also add, Judge Bates relied on a declassified document from the Central Intelligence Agency from 1997, after Mr. bin Laden was expelled or however he left Sudan to go to Afghanistan.

[00:43:01] Speaker 02:
That document, which was declassified, makes clear that Sudan was

[00:43:04] Speaker 02:
still supporting terrorist groups such as al-Qaeda.

[00:43:09] Speaker 02:
And the fact that the 98 bombings were their first, quote, and I hate to use this word, successful, quote, operation because it was devastating, one of the most devastating attacks on the United States until 9-11 by the same organized gang, I might add, three years later,

[00:43:25] Speaker 02:
And Sudan was determined by the CIA after Bin Laden left to still be supporting al-Qaeda.

[00:43:33] Speaker 02:
They cannot walk away from that.

[00:43:35] Speaker 02:
Try as they might.

[00:43:36] Speaker 02:
That evidence is unrebutted.

[00:43:39] Speaker 02:
And when Sudan made a decision not to challenge that evidence, either at a trial, after this court had first denied their jurisdictional defense,

[00:43:48] Speaker 02:
or after Judge Bates had it served on them through diplomatic channels.

[00:43:51] Speaker 02:
They had a second bite at the apple.

[00:43:53] Speaker 02:
They chose not to take it.

[00:43:56] Speaker 02:
And then they come in after the damage awards and the judgments, some of which were final, some of which were not yet final, and took appeals, of course, from the judgments that were final.

[00:44:07] Speaker 02:
I understand the record is undisputed, but they can't now complain having made those choices.

[00:44:13] Speaker 02:
that somehow there should be a do-over.

[00:44:16] Speaker 02:
I might add they have not informed Judge Bates, and they certainly have not informed this court, and they have not even made a proffer as to what kind of evidence, what kind of hearing they want.

[00:44:28] Speaker 02:
They just want to start over.

[00:44:31] Speaker 02:
And the rules don't allow that.

[00:44:34] Speaker 04:
What you said about Mr. Simon's basis for knowledge of the facts to which he testified, is that any different from the background for the declarants whose affidavits were not discussed by Judge Bates, the plaintiff's two affidavits?

[00:44:54] Speaker 02:
You're talking about the earlier Sudan affidavits, the FBI and ambassador?

[00:44:58] Speaker 02:
Yes.

[00:44:59] Speaker 02:
I point out, and of course it's in the record,

[00:45:01] Speaker 02:
At the time that Sudan submitted those affidavits of former federal official, US government officials, it was a contested proceeding.

[00:45:10] Speaker 02:
and the plaintiffs and their lawyers objected in a real contested case, not in a default situation.

[00:45:17] Speaker 02:
And Judge Bates upheld that objection.

[00:45:19] Speaker 08:
I thought he simply said he wasn't going to rule on it now.

[00:45:24] Speaker 08:
No, he actually.

[00:45:26] Speaker 08:
I couldn't find a ruling on it.

[00:45:27] Speaker 04:
And when he later refers to it in the 60B opinion, he doesn't say that he had

[00:45:33] Speaker 02:
Well, if you, with respect, I know from the record, way back in 2004, when Judge Bates did two things, and it was in light of this court's decisions in Kilburn, as you may recall, because the jurisprudence and the pleading standards were being developed by this court's jurisprudence.

[00:45:50] Speaker 02:
It was clear that Judge Bates did two things.

[00:45:53] Speaker 02:
He told the plaintiffs, I want you to amend your complaint with more particularity.

[00:45:57] Speaker 02:
And he also said that the two affidavits submitted by Sudan in support of their motion to dismiss were inadmissible because Sudan had not complied with the TUI regulations.

[00:46:10] Speaker 02:
You cannot have former U.S.

[00:46:13] Speaker 02:
government officials come into a nongovernmental case and testify about anything from their own experience in government service unless the administration says it's okay under the TUI process.

[00:46:26] Speaker 02:
This is well known and has been litigated in this court and many other courts.

[00:46:30] Speaker 02:
And that was the basis for him saying, I'm not going to admit it, but he also said, I'm not going to allow the plaintiffs to depose him.

[00:46:38] Speaker 02:
I'm sorry, I didn't mean to interrupt.

[00:46:41] Speaker 08:
Perhaps you could provide us with the record site.

[00:46:44] Speaker 02:
We shall do so as soon as this hearing is over.

[00:46:47] Speaker 04:
Mr. Neuberger, in the Kim case, the court concluded its decision by saying, given these uncontroverted expert statements, we have no trouble concluding that the Kims presented sufficient evidence, an observation about our decision to reach

[00:47:07] Speaker 04:
Our conclusion would no doubt differ if we lacked confirmed evidence that the DPRK was involved in the Reverend Kim's disappearance.

[00:47:16] Speaker 04:
So the abduction of the victim here was, there's no question about that.

[00:47:22] Speaker 04:
Correct.

[00:47:22] Speaker 04:
And the only inferences are what happens to someone who's abducted to the North.

[00:47:27] Speaker 02:
Well, and it was all about inferences because no one actually knew in fact.

[00:47:31] Speaker 04:
Right, right.

[00:47:31] Speaker 04:
But what is the predicate fact here if there is one that you can identify that similarly gets the ball rolling, gives the district court confidence that the experts that you put in

[00:47:56] Speaker 04:
are making logical inferences from something that's undisputable.

[00:48:00] Speaker 02:
Yes, well, I think part of – I touched on this before, but I think from a logical sequence it makes it simpler to start with 1993, which this Court, of course, looked at in the First Owens appeal when the Secretary of State, pursuant to the President's authority,

[00:48:16] Speaker 02:
put Sudan on the list of terrorist states.

[00:48:19] Speaker 02:
And the specific reason for that, the specific reason in the Secretary of State's designation, was that Sudan was providing material support to terrorist organizations.

[00:48:30] Speaker 02:
So Sudan has been on notice long before these attacks took place, long before there was a litigation, long before the 1996 FSIA terrorism amendments.

[00:48:41] Speaker 02:
that as far as the United States of America is concerned, officially and publicly, our president is saying, you are a terrorist state and you are providing material support to people who want to kill Americans and hurt Americans.

[00:48:54] Speaker 02:
And then the evidence that Judge Bates considered, post that designation, if you will,

[00:49:00] Speaker 02:
And I know there are three categories that he considered.

[00:49:04] Speaker 02:
There's the three witnesses, two of whom I would call as pure experts.

[00:49:08] Speaker 02:
Mr. Simon, I think, is a hybrid, given his personal knowledge from the White House and the NSC, as well as his being qualified as an expert, because, of course, that allowed him to provide an opinion, not simply knowledge, but opinion.

[00:49:20] Speaker 08:
And the district court treated him as an expert.

[00:49:23] Speaker 02:
The district court, yes, treated him as an expert, but also the only step, as we know, under Daubert is that the district court must make a particularized decision that he's qualified to be an expert.

[00:49:34] Speaker 08:
You're trying to read.

[00:49:36] Speaker 08:
that's all I'm trying to be clear.

[00:49:39] Speaker 08:
The district court treated him as an expert witness both during the proceedings and in denying the motion to vacate.

[00:49:47] Speaker 02:
He treated him as an expert because under Daubert he must in order for there to be a conclusion provided.

[00:49:53] Speaker 02:
But Judge Bates in his 2011

[00:49:55] Speaker 02:
Merritt's liability decision also repeats, if you will, some of the factual knowledge that Mr. Simon had.

[00:50:02] Speaker 02:
And I don't have time, of course, to go through this.

[00:50:05] Speaker 02:
Mr. Simon testified for several hours, and the transcript is a part of the record.

[00:50:09] Speaker 02:
He testified about his knowledge, and he was also authorized by the district judge to give an expert conclusion.

[00:50:17] Speaker 02:
So yes, the district court did consider him an expert, and I believe that's assured him because he has to.

[00:50:22] Speaker 02:
But he also heard direct testimony from Mr. Simon.

[00:50:25] Speaker 02:
And I might add, that testimony, as well as the two other I'll call true expert testimonies, were corroborated.

[00:50:33] Speaker 02:
by the CIA declassified documents, and most importantly, by the State Department's annual reports, which by the way, it is required to issue through the Secretary of State every year.

[00:50:45] Speaker 02:
This is not some random correspondence that the executive branch does, you know, willy-nilly.

[00:50:52] Speaker 02:
This is by statute and regulation

[00:50:54] Speaker 02:
that the State Department issues these every year, its annual report on terrorism, global patterns of terrorism, and those are specifically reliable as federal government reports because they are required to be issued on this subject.

[00:51:08] Speaker 08:
In reading Judge Bates' decisions, I understood his questions with regard to Mr. Simon's knowledge were all in regard to whether or not he should be qualified as an expert witness.

[00:51:23] Speaker 08:
And then,

[00:51:24] Speaker 08:
the district court allowed him to give his opinion.

[00:51:27] Speaker 08:
So a typical Daubert inquiry.

[00:51:32] Speaker 08:
What I guess we're asking about is the fact that an expert says, I know A, B, and C, and therefore I have an opinion about the causation of A, B, and C.

[00:51:50] Speaker 08:
At least the way I read our cases and the federal rules, that's not the same as proving the existence of A, B, and C.

[00:52:01] Speaker 02:
Well, of course not, and we're not arguing that solely the expert opinions are the factual foundation for judge-based rulings.

[00:52:09] Speaker 08:
So you're relying on Mr. Simon's qualifications and the CIA declassified report and the Department of State annual report?

[00:52:20] Speaker 02:
All of those, and in addition,

[00:52:23] Speaker 02:
The FBI and the Department of Justice managed to turn Mr. Fidel, one of the critical links in the al-Qaida-Sudanese relationship directly at issue here in this case, as well as the criminal prosecutions of the same gang in New York for these bombings.

[00:52:40] Speaker 02:
And Mr. Al-Fidel's testimony in the criminal cases was introduced here as additional corroborative evidence

[00:52:49] Speaker 02:
And if Sudan had been in the trial, if it had made the decision to contest the evidence, it would have had an opportunity in 2010 to come in and say, that's inadmissible, or we want to take his deposition, or we want to cross-examine him.

[00:53:05] Speaker 02:
And they did not.

[00:53:06] Speaker 02:
So they can't now complain about their own decisions.

[00:53:10] Speaker 02:
And that was what Judge Bates pointed the finger at Sudan and said, it's too late for you to make those kind of arguments here.

[00:53:18] Speaker 02:
They had many opportunities.

[00:53:20] Speaker 02:
And Judge Rogers, just to follow up on your point, after the 2011 liability and merits decision was served in Arabic on Sudan through our diplomatic channels, Sudan had an opportunity in 2011, 2012, right up through the time

[00:53:36] Speaker 02:
that the cases were over.

[00:53:38] Speaker 02:
It had every opportunity, and His Excellencies the Ambassador's affidavit does not even discuss why they failed to do that.

[00:53:47] Speaker 08:
So my question is, since it doesn't, was the district court required to make some inquiry?

[00:53:57] Speaker 02:
No, because the burden is on Sudan.

[00:54:01] Speaker 08:
I know, but I'm just trying to understand, you want us to accept these reports and other matters, and yet here we have an affidavit, or was it a declaration, a sworn statement, that makes certain representations.

[00:54:22] Speaker 08:
And if they're true, that casts one light on things.

[00:54:29] Speaker 02:
If they're true, then there needs to be evidence to support them.

[00:54:32] Speaker 02:
And the district judge, in the first instance, has an obligation under Rule 60 to figure out if there is enough evidence to excuse the neglect.

[00:54:42] Speaker 02:
Not was there neglect, but is excusable neglect.

[00:54:45] Speaker 08:
Right.

[00:54:46] Speaker 08:
We're discussing that cross purposes here.

[00:54:48] Speaker 08:
So there was no obligation, in your view, for the district court if it was going to reject the ambassador's assertion

[00:54:59] Speaker 08:
to inquire either of the ambassador or of the moving party?

[00:55:07] Speaker 02:
No.

[00:55:07] Speaker 02:
Judge Bates, I think, fully complied with the requirements of Rule 60 and fairness required.

[00:55:14] Speaker 02:
And I don't think there's any duty on him to go beyond that and say, I want the ambassador to come in here and be cross-examined, or by me or by the other side.

[00:55:23] Speaker 02:
There's no obligation on him whatsoever, either under the rules or under the FSIA.

[00:55:29] Speaker 02:
And so I believe he did do what the rule required.

[00:55:32] Speaker 02:
And I might add, Judge Bates bent over backwards as far back as 2004 for Sudan when they first came back in the case.

[00:55:41] Speaker 08:
I know you twice said he complied with the rule, but the rule doesn't answer the question I'm asking.

[00:55:48] Speaker 08:
So in any event.

[00:55:50] Speaker 02:
With that, I know my time has expired, and I appreciate the court's patience.

[00:55:54] Speaker 05:
I'd like to ask you about the standard for evidence satisfactory to the court.

[00:56:00] Speaker 05:
Yes.

[00:56:02] Speaker 05:
position on that?

[00:56:03] Speaker 02:
Yes.

[00:56:04] Speaker 02:
Well, of course, we have defaults that we're all familiar with in a private setting, and then we have defaults under the Foreign Sovereign Immunities Act.

[00:56:12] Speaker 02:
And we know that Congress effectively has instructed the district judges what to do when a sovereign, for whatever reasons, excusable or not, is not present at the time it wants to enter a judgment.

[00:56:25] Speaker 02:
And when Congress enacted the Foreign Sovereign Immunities Act originally in 1976, 1608 was effectively a part of the scheme that Congress had put together.

[00:56:36] Speaker 02:
And what that does, it provides sovereigns extra insurance, extra protection, that instead of just a default and everything is considered acceptable from a factual and evidentiary basis,

[00:56:47] Speaker 02:
The district judge has, if you will, an additional obligation, because of principles of comity and because of the principles that Congress was addressing when it first enacted the law in 76, to bend over backwards for sovereigns, to make sure, if you will, that there is evidence to support the entry of a default judgment, not simply rubber stamp it as might happen in a commercial case or a contract case or something like that.

[00:57:11] Speaker 05:
What I was asking was, is it more than preponderance of the evidence?

[00:57:14] Speaker 05:
Is it preponderance of the evidence?

[00:57:16] Speaker 05:
Is it less than preponderance?

[00:57:17] Speaker 02:
The burden of proof, I'm sorry, I misunderstood.

[00:57:19] Speaker 02:
I thought your question was about the statute itself.

[00:57:21] Speaker 02:
The burden of proof is clearly like any other civil case, it's preponderance of the evidence.

[00:57:25] Speaker 02:
And I think that's been accepted by this court and the district courts in many of these FSIA cases.

[00:57:30] Speaker 02:
I hope that answers your question.

[00:57:31] Speaker 02:
With that, I would like to defer to my colleague, Mr. McGill, who will address the other issues.

[00:57:35] Speaker 02:
And thank you very much for your patience.

[00:57:44] Speaker 03:
Good morning, Judge Henderson, and may it please the Court.

[00:57:47] Speaker 03:
I'm Matthew McGill.

[00:57:48] Speaker 03:
I represent all of the other plaintiffs here before the Court today.

[00:57:53] Speaker 03:
Judge Henderson, I have a different view than Mr. Neuberger on the standard under 1608E.

[00:57:58] Speaker 03:
I think it's, at most, a substantial evidence inquiry.

[00:58:02] Speaker 03:
It doesn't make sense to talk about a preponderance of the evidence in a non-contestant proceeding.

[00:58:07] Speaker 03:
Judge Rogers, you asked about a record site for the

[00:58:12] Speaker 03:
for the rejection of the Cluny and, I keep calling it the Cluny, the Clunin and Carney affidavits.

[00:58:20] Speaker 03:
It's not exactly perhaps what you're looking for, but page 142 of the joint appendix discusses what happened in the district court.

[00:58:29] Speaker 03:
And what happened there was after Sudan submitted the affidavits, the plaintiffs sought to depose the declarants and judge

[00:58:38] Speaker 03:
Bates recognized that there was a TUI regulation problem on both sides.

[00:58:44] Speaker 03:
The plaintiffs could not oppose the declarants because the plaintiffs had not complied with the TUI regulations, and he also recognized at that time that the declarations were submitted without compliance of the TUI regulations.

[00:58:58] Speaker 03:
What happened was Judge Bates said,

[00:59:00] Speaker 03:
I don't need to go any further than that.

[00:59:03] Speaker 03:
I'm denying your motion to strike the affidavits, but I'm also denying your motion to dismiss Sudan.

[00:59:09] Speaker 03:
So once that happened, Sudan took an appeal to this court, and of course, this court affirmed the denial of the motion to dismiss.

[00:59:18] Speaker 03:
And that kind of put those affidavits to bed, and they were never heard from again until

[00:59:26] Speaker 03:
sudan filed its rule sixty-B motion.

[00:59:28] Speaker 08:
I just wasn't clear what had happened to them.

[00:59:30] Speaker 03:
I hope that clears it up.

[00:59:31] Speaker 08:
Yeah, but that's all I found.

[00:59:35] Speaker 03:
And I think that in truth is all that occurred because nothing else needed to occur because after this court affirmed the denial of the motion to dismiss, Sudan walked away from the case.

[00:59:46] Speaker 08:
But you agree the district court referred to them later on.

[00:59:50] Speaker 03:
The district court certainly

[00:59:53] Speaker 03:
The district court in its denial of Sudan's original motion to dismiss specifically held that those affidavits were not enough to overcome the testimony of al-Fidal and al-Risi, which is the backbone of the evidence that supports the 1680 findings here.

[01:00:12] Speaker 03:
And I know causation is not my issue, but I will just point the court to a couple of things.

[01:00:17] Speaker 08:
Could I just ask you to repeat, not enough to overcome the testimony of?

[01:00:21] Speaker 03:
Of Jamal al-Fidal.

[01:00:23] Speaker 08:
Right.

[01:00:23] Speaker 03:
And Assam al-Widi.

[01:00:25] Speaker 03:
And these are two former Al-Qaeda members who became cooperators for the government, who testified in the 2001 embassy bombing trial before Judge Sand in New York.

[01:00:37] Speaker 03:
This was the back... This case has much more evidence than the average terrorism case, because you have the guilty plea of Ali Mohammed, who was a lead conspirator in the event, and you have also the cooperating testimony of al-Fidal and al-Widi.

[01:00:55] Speaker 03:
Now, what did they testify to in the...

[01:01:00] Speaker 03:
Proceedings in 2001, I want to make clear what we're talking about, right, in the embassy bombing trials.

[01:01:06] Speaker 03:
Al-Ridi said that the Sudan military protected Osama bin Laden in Sudan.

[01:01:12] Speaker 03:
He was a former pilot for Osama bin Laden.

[01:01:15] Speaker 03:
The district court discusses that at Joint Appendix 401.

[01:01:20] Speaker 03:
He also discusses its 401 Jamal al-Faital's testimony that Sudan provided hundreds of passports, hundreds of passports to al-Qaeda while they were in Sudan.

[01:01:32] Speaker 03:
And those passports then enabled al-Qaeda members to travel to the Nairobi South without any difficulty and to plan and carry out and perpetrate the attacks.

[01:01:42] Speaker 03:
Any doubt about that is removed by the guilty plea of Ali Mohammed.

[01:01:49] Speaker 03:
personally scouted sites in Kenya, and then selected the targets with Osama Bin Laden himself in cartoon.

[01:02:00] Speaker 03:
And that is at Joint Appendix 335.

[01:02:02] Speaker 03:
The experts here relied on that guilty plea, that sworn testimony in district court,

[01:02:14] Speaker 03:
and their experience and, frankly, expertise in this subject to reach conclusions and opinions.

[01:02:24] Speaker 03:
This court in Simpson, Judge Rogers, it was your opinion, I believe, in Simpson.

[01:02:29] Speaker 08:
Actually, it was for the court.

[01:02:31] Speaker 03:
You're correct about that.

[01:02:33] Speaker 03:
Your opinion for the court in Simpson says that

[01:02:44] Speaker 03:
Speaking of another expert, it was consistent with the requirements of Federal Rule of Evidence 703, which does not require independent evidence nor a limit an expert to consideration of admissible evidence informing an opinion.

[01:02:59] Speaker 03:
That's 470 F3 at 362.

[01:03:00] Speaker 08:
That's not the issue we're addressing here.

[01:03:05] Speaker 08:
The appellants have not challenged in the direct sense the qualification of the experts.

[01:03:14] Speaker 03:
Well, I think that what they are challenging is the basis for their opinions.

[01:03:19] Speaker 08:
And as I understand it, what they're challenging is the use of the basis for their opinions as factual evidence.

[01:03:29] Speaker 08:
And I thought the thrust of your argument now is that's not correct.

[01:03:36] Speaker 08:
And even if they did, there was this other record evidence

[01:03:41] Speaker 03:
I think all that's true.

[01:03:43] Speaker 03:
I read Simpson for the proposition that under the federal rules, an expert can form an opinion based on more than merely evidence that is otherwise independently admissible.

[01:03:54] Speaker 03:
No question.

[01:03:54] Speaker 08:
If I say that's not the issue in this case.

[01:03:56] Speaker 03:
Okay.

[01:03:57] Speaker 03:
Well, I had understood, Mr. Curran, to raise that issue front and center, that

[01:04:03] Speaker 03:
So I think it's also important to put this within the correct framework, which is the burden of proof here to establish immunity rests with Sudan.

[01:04:18] Speaker 03:
That is confirmed by this court's decision first in Phoenix Consulting and later in Kilburn.

[01:04:24] Speaker 03:
We had, as plaintiffs, a burden of production, perhaps.

[01:04:28] Speaker 03:
to demonstrate that the exception to immunity existed, but they had the ultimate burden of persuasion.

[01:04:38] Speaker 03:
Judge Bates held in 2008 in denying the original motion to dismiss that the testimony of Al Fidel and Al Risi satisfied our burden of production.

[01:04:54] Speaker 03:
This court affirmed that decision.

[01:04:57] Speaker 03:
And since then, we have come up with not just the testimony of al-Fidal and al-Risi, but now also the testimony of three expert opinions to further advance our burden of production.

[01:05:13] Speaker 03:
And Sudan, for its part, to counter our burden of production, to meet its burden of persuasion, has put forward nothing.

[01:05:22] Speaker 03:
I think that is sufficient to end the inquiry as to jurisdictional causation.

[01:05:28] Speaker 03:
But if you wanted to go farther, Judge Bates's factual findings here, Sudan acknowledges at page 15 of its brief, are subject only to clear error review.

[01:05:42] Speaker 03:
Their admissibility

[01:05:45] Speaker 03:
quarrels do not constitute a allegation of, much less proof of, clear error as to Judge Bates's factual findings that, for instance, Sudan provided passports that were essential to the carrying out of these attacks.

[01:06:03] Speaker 03:
There is no allegation of clear error here, much less evidence or proof that would be necessary to overcome and establish

[01:06:15] Speaker 03:
that the district court's jurisdiction was lacking from the outset and that the judgment is void.

[01:06:21] Speaker 03:
This court's opinion in Gates v. Syria establishes beyond per adventure that it is Sudan's burden to demonstrate that the court lacked jurisdiction.

[01:06:33] Speaker 03:
It did nothing to carry that burden on the causation issue.

[01:06:38] Speaker 03:
What it did was submit the evidence of its ambassador.

[01:06:43] Speaker 03:
And Judge Rogers, you raised questions about this as well.

[01:06:48] Speaker 03:
Paragraph four of the ambassador's declaration, I think, is carefully worded.

[01:06:55] Speaker 03:
And what it says is that

[01:06:59] Speaker 03:
From 2005 until 2014, Sudan was not in active communication with the U.S.

[01:07:05] Speaker 03:
Council and was absent from the litigation in the United States.

[01:07:08] Speaker 03:
We can take that as true.

[01:07:12] Speaker 03:
But what it says at the bottom was that events in Sudan, specifically the cession of South Sudan, quote, completely preoccupied the government of Sudan.

[01:07:22] Speaker 03:
and necessitated the diversion of all legal and diplomatic personnel to that process, meaning the secession process.

[01:07:31] Speaker 03:
What is not in that affidavit is any statement that Sudan could not, possibly, was unable to, was somehow blocked from participating in communicating with the district court.

[01:07:47] Speaker 03:
This is miles away from this court's decision in FG hemisphere.

[01:07:52] Speaker 03:
where this court recounted in great detail how the package that served the Congo government went through this, it was stuck in the mail for several days, and then went through this elaborate bureaucratic process.

[01:08:07] Speaker 08:
We didn't set up a standard blockage there.

[01:08:10] Speaker 08:
Let me ask you, do you represent the family member claim?

[01:08:13] Speaker 03:
I do.

[01:08:14] Speaker 08:
All right.

[01:08:15] Speaker 08:
Do you want to discuss the presence requirement under the DC Court of Appeals?

[01:08:22] Speaker 03:
Absolutely.

[01:08:22] Speaker 08:
Intentional affliction of emotional distress.

[01:08:25] Speaker 03:
So the first point about that is that this is concededly forfeited.

[01:08:30] Speaker 03:
This is undisputedly a merits question that does not go to jurisdiction.

[01:08:39] Speaker 03:
And therefore, relief only could be granted if this court first found one excusable neglect or somehow extraordinary circumstances under 60B6.

[01:08:48] Speaker 03:
I submit that this, for reasons that I can elaborate on, that Sudan doesn't come close under either the pioneer standard, which governs excusable neglect, or this court's opinion in Salazar, which talks about the extraordinary circumstances.

[01:09:05] Speaker 03:
Doesn't come even remotely close, but addressing the merits of your question.

[01:09:11] Speaker 03:
This court in Bettes in 2003

[01:09:16] Speaker 03:
determined that the standard that governs claims brought under the federal cause of action, or so-called federal common law, was section 46 sub 2 of the second restatement of torts, which is the same substantive law that all parties agree here governs in the DC Court of Appeals.

[01:09:40] Speaker 03:
So the question here is whether family members who were not present at Ground Zero can obtain relief under that section of the restatement.

[01:09:52] Speaker 03:
This court in Bettis at least approved such an imposition of liability under federal common law.

[01:10:05] Speaker 03:
It has been repeatedly approved under federal common law in district courts.

[01:10:11] Speaker 08:
You're suing under DC law a state claim for intentional infliction of emotional distress.

[01:10:22] Speaker 08:
Is that correct?

[01:10:24] Speaker 03:
Some of the plaintiffs are those who are not U.S.

[01:10:28] Speaker 03:
persons or are not otherwise connected to U.S.

[01:10:32] Speaker 03:
persons.

[01:10:32] Speaker 03:
So that is correct, but my point... Okay.

[01:10:36] Speaker 08:
The answer is yes.

[01:10:37] Speaker 03:
Yes.

[01:10:39] Speaker 08:
And that is a tort, correct?

[01:10:44] Speaker 03:
Yes.

[01:10:46] Speaker 08:
And the way the District of Columbia Court of Appeals has interpreted it,

[01:10:52] Speaker 08:
It has a presence requirement.

[01:10:54] Speaker 08:
Is that correct?

[01:10:56] Speaker 03:
No.

[01:10:57] Speaker 08:
And what case can you cite for that proposition?

[01:11:00] Speaker 03:
I think that what the DC Court of Appeals has said is that the restatement, we look to the restatement second, section 46 sub 2, which does include a presence requirement, but also includes this caveat, which allows for development of the law.

[01:11:22] Speaker 08:
So do we need to send this question to the D.C.

[01:11:26] Speaker 08:
Court of Appeals?

[01:11:27] Speaker 03:
No.

[01:11:28] Speaker 08:
Why not?

[01:11:28] Speaker 03:
Because under the governing statute it has to be determinative of the cause and this is undisputedly forfeited and cannot be... But we were into the merits.

[01:11:39] Speaker 03:
We were.

[01:11:42] Speaker 03:
My first line is always going to be, this is forfeited, you don't need to reach it, because you have to go through the 60B1 or 60B6 gate first.

[01:11:51] Speaker 03:
And they can't get through that.

[01:11:54] Speaker 03:
But I'm trying to be helpful in addressing the question on the merits as well.

[01:11:59] Speaker 03:
I don't think the certification is appropriate.

[01:12:02] Speaker 03:
I do think that it would be truly anomalous if

[01:12:07] Speaker 03:
Every district court in this building, which is applying the very same restatement provision to identical claims in the very same cases, finds liability is available for people not at ground zero under federal, quote unquote, federal common law, but not under DC law.

[01:12:27] Speaker 08:
But I didn't find any D.C.

[01:12:29] Speaker 08:
Court of Appeals case resolving this.

[01:12:31] Speaker 08:
Oh, I think that's... Unless any case from this circuit resolving the question.

[01:12:37] Speaker 08:
So your point is the only way appellants can get there is through Rule 60B.

[01:12:46] Speaker 03:
I think that's correct.

[01:12:47] Speaker 03:
They have made an argument.

[01:12:49] Speaker 03:
They have cited in their brief a case I believe is called Marshall v. Baggett that they cite for the proposition that in any default judgment, you can challenge the legal sufficiency of the complaint.

[01:13:03] Speaker 03:
I would say to the court in response to that, anticipating the reply, two things.

[01:13:08] Speaker 03:
One, this court's decision in practical concepts is governing, and it says that you forfeit your opportunity to defend on the merits when you walk away from a case as Sudan did.

[01:13:20] Speaker 03:
And second is that in Marshall v. Baggett,

[01:13:24] Speaker 03:
That was a case in which the plaintiff truly had no opportunity to defend and never defended, which is quite apart from what Sudan did here.

[01:13:34] Speaker 03:
Sudan filed a motion to dismiss.

[01:13:36] Speaker 03:
This argument could have been included in that motion to dismiss.

[01:13:39] Speaker 03:
It was not.

[01:13:41] Speaker 03:
And then this court affirmed.

[01:13:45] Speaker 03:
So Sudan had its bite at the jurisdictional apple.

[01:13:48] Speaker 03:
had this opportunity to make this argument, Marshall versus Baggett doesn't apply.

[01:13:53] Speaker 03:
Forfeiture rules in this court's decision and practical concepts does.

[01:13:59] Speaker 03:
I think because they're so important, I do want to turn back to the 60B1 and 60B6 gates.

[01:14:04] Speaker 03:
The 60B1 gate, excusable neglect.

[01:14:08] Speaker 03:
This court looks to the Supreme Court's decision, the quote unquote pioneer factors,

[01:14:14] Speaker 03:
The first of that, one of those factors is the length of the delay.

[01:14:19] Speaker 03:
Here, the length of delay is truly extraordinary.

[01:14:23] Speaker 03:
We're talking about several years, years-long delay.

[01:14:28] Speaker 08:
Well, when are you starting to count the delay?

[01:14:31] Speaker 03:
Well, I would count the delay first.

[01:14:34] Speaker 03:
It depends on what case you're talking about, of course, Judge Rogers.

[01:14:37] Speaker 03:
But in the Owens case, I would start from the day that Sudan

[01:14:43] Speaker 03:
from basically the day this court affirmed the denial of the motion to dismiss, I think was the last day Sudan said to have been participating, which was now seven years ago.

[01:14:55] Speaker 08:
Well, let's see.

[01:14:56] Speaker 08:
The district court's final judgment on liability was November 28, 2011.

[01:15:05] Speaker 08:
Damages was March 28, 2014.

[01:15:08] Speaker 08:
Is that correct?

[01:15:09] Speaker 03:
Correct.

[01:15:10] Speaker 08:
All right, new council enters April 28th, 2014.

[01:15:14] Speaker 08:
Remarkably on the... And files notices of appeal in the three cases where the district court had already entered a final judgment and then proceeded to file in the other four cases once the final judgments were entered.

[01:15:35] Speaker 08:
So that's a months delay.

[01:15:38] Speaker 03:
But I think that measures it from the wrong starting point.

[01:15:44] Speaker 08:
Well, I'm just saying there's a final judgment.

[01:15:48] Speaker 08:
And then there's an appeal.

[01:15:51] Speaker 08:
So you think we should go back to the motion to dismiss and this court's first appeal?

[01:15:59] Speaker 03:
Well, I think that the question is when

[01:16:03] Speaker 03:
When should Sudan have, how much neglect is Sudan looking to excuse?

[01:16:08] Speaker 03:
When should it have raised this argument?

[01:16:11] Speaker 08:
Well, I'm just trying to understand.

[01:16:12] Speaker 08:
Council was still in the case for Sudan until the district court in January of 2009 allowed Council to withdraw.

[01:16:22] Speaker 03:
That's correct.

[01:16:26] Speaker 08:
Council had filed the motion to withdraw much earlier.

[01:16:31] Speaker 08:
explaining to the district court the problems of communication.

[01:16:38] Speaker 08:
Not that there was any disagreement, but that council was unable to contact, reach, discuss, however you want to describe it.

[01:16:52] Speaker 08:
So would you start the delay from the point that council is allowed to get out of the case?

[01:17:02] Speaker 03:
I think the relevant time to start the delay, in all fairness to Sudan, would be the last moment at which it should have raised the argument that otherwise would have been forfeited.

[01:17:17] Speaker 03:
And I think that really plausibly here could be only the date of the 1608e trial.

[01:17:28] Speaker 03:
So I would take it back to the 1608, the date of the 1608e trial, which was five years ago.

[01:17:38] Speaker 03:
This is many, many multiples of the delay at issue in FG hemisphere.

[01:17:44] Speaker 03:
The prejudice to the plaintiffs here is many magnitudes greater.

[01:17:50] Speaker 03:
But I do want to take issue with the assertion that the neglect here was in any way excusable.

[01:18:00] Speaker 03:
I would note that this is not the only jurisdiction in which Sudan has cases pending against it.

[01:18:09] Speaker 03:
The cases concerning the bombing of the USS Cole are pending before the Eastern District of Virginia in front of Judge Dumar.

[01:18:18] Speaker 08:
District court didn't rely on that.

[01:18:21] Speaker 03:
No, it didn't.

[01:18:21] Speaker 03:
But I think it's certainly relevant to this court's determination about whether the neglect was excusable.

[01:18:29] Speaker 08:
And the point was- We don't know.

[01:18:30] Speaker 08:
I don't know what's happening before Judge Dumas.

[01:18:34] Speaker 08:
I mean, there are many cases filed against many defendants.

[01:18:38] Speaker 08:
That was not the district court's point.

[01:18:41] Speaker 08:
The district court said it hadn't received a letter, and it hadn't received an email.

[01:18:46] Speaker 03:
You are correctly restating the district court's analysis.

[01:18:50] Speaker 08:
No.

[01:18:51] Speaker 08:
opinion in denying the motion to vacate.

[01:18:55] Speaker 03:
Yes.

[01:18:57] Speaker 03:
He said more than that, of course.

[01:18:59] Speaker 03:
But you're correctly reciting what the district court relied upon.

[01:19:02] Speaker 03:
He thought that it was quite literally incredible.

[01:19:05] Speaker 03:
Quite literally incredible.

[01:19:06] Speaker 08:
Well, he didn't use that word.

[01:19:07] Speaker 08:
He said he had a blame argument.

[01:19:10] Speaker 08:
And he said, but ignoring any blame here,

[01:19:13] Speaker 08:
I didn't even get a letter or an email.

[01:19:15] Speaker 03:
Well, here's what I was going to say.

[01:19:17] Speaker 03:
And you may choose to take judicial notice of it or not, because it's a proceeding in another jurisdiction.

[01:19:24] Speaker 08:
Did you ask us to take judicial notice in your brief?

[01:19:28] Speaker 03:
I have not.

[01:19:30] Speaker 08:
But you know, I have no idea what's happening in those other cases.

[01:19:35] Speaker 03:
On September 30, Judge Dumas recounts in an opinion of- In fairness, counsel, you're trying to introduce something new.

[01:19:43] Speaker 08:
How oral are you?

[01:19:46] Speaker 08:
I mean, you haven't made this argument, and the district court didn't rely on it.

[01:19:49] Speaker 03:
The argument we've made, Your Honor, is that Sudan's neglect is inexcusable.

[01:19:54] Speaker 03:
I understand that.

[01:19:55] Speaker 03:
It has no footing under this court's pioneer factors.

[01:19:59] Speaker 03:
Sudan has participated in litigation in other jurisdictions, while claiming to Judge Bates that it was impossible to do so.

[01:20:07] Speaker 08:
I think this court can take recognition of it.

[01:20:09] Speaker 08:
But you know, in fairness, you have said that, counsel, today, right now.

[01:20:12] Speaker 08:
I think this is quite serious, candidly.

[01:20:14] Speaker 08:
I mean, I thought your position was that the district court did not abuse its discretion in denying the motion to vacate.

[01:20:22] Speaker 08:
And it set out in some detail the reasons for its decision.

[01:20:27] Speaker 08:
Not that the district court's decision was somehow insufficient and has to be bolstered by facts of which this court should take judicial notice.

[01:20:39] Speaker 03:
That certainly is correct, that there is nothing deficient about Judge Bates' rejection of this argument whatsoever.

[01:20:47] Speaker 03:
Under this court's decision in Gates, it was Sudan's burden to demonstrate that its neglect was excusable.

[01:20:54] Speaker 03:
It's the affidavit with nothing more.

[01:20:57] Speaker 03:
Paragraph 4 of the affidavit found at 648 of the Joint Appendix doesn't say that much.

[01:21:04] Speaker 03:
It just says that Sudan is otherwise completely preoccupied.

[01:21:08] Speaker 03:
for nine years was what Judge Bates' point.

[01:21:13] Speaker 03:
They could not even say that they had requested an extension of time.

[01:21:19] Speaker 03:
There's nothing in this court's cases that even remotely supports

[01:21:25] Speaker 03:
that rising to the level of excusable neglect under the pioneer factors.

[01:21:30] Speaker 03:
Certainly not this court's decision in FG hemispheres, which involved a much, much shorter delay with no prejudice to the defendants, plaintiffs at all.

[01:21:41] Speaker 03:
This would be enormously prejudicial.

[01:21:43] Speaker 03:
This case was filed initially in 2001.

[01:21:45] Speaker 08:
So what do you think the district court was saying was counsel's obligation on behalf of

[01:21:54] Speaker 08:
its client prior to the time the district court allowed it to withdraw.

[01:22:02] Speaker 03:
I don't think Judge Bates was quarreling with the council's conduct prior to the withdrawal.

[01:22:09] Speaker 03:
I think he was quarreling with Sudan's refusal to communicate with its council.

[01:22:22] Speaker 04:
put aside the Eighth Circuit's Bagot case and there are some others that are similar.

[01:22:26] Speaker 04:
In fact, we've not moved on that person.

[01:22:29] Speaker 04:
And you said to be governed instead by practical concepts.

[01:22:34] Speaker 04:
And I'm looking at that and the footnote in practical concepts that says that the United States and its amicus group cautions the court about being

[01:22:49] Speaker 04:
to default judgements against foreign states because of the possibility of implicating foreign relations with United States.

[01:23:00] Speaker 04:
Now that suggests to me that if you're correct, that even if you're correct on the pioneer factors, it would be prudent

[01:23:14] Speaker 04:
Yes, I do.

[01:23:27] Speaker 03:
I think that first of all, it would, as I said, under the governing statute, it must be, quote, determinative of the cause.

[01:23:38] Speaker 03:
Because the issue is forfeited, I don't think it possibly can be determinative of the cause.

[01:23:45] Speaker 03:
This is undisputedly a merit's question.

[01:23:48] Speaker 04:
That's exactly the rigid adherence or intolerant adherence to which the government sorts of got it.

[01:23:52] Speaker 03:
Well, I think that the rigid intolerance, so to speak, to use your words, is a question of Rule 60 and what Rule 60 requires.

[01:24:04] Speaker 03:
Rule 60 has a safety valve under 60B6, and it has a safety valve under 60B1.

[01:24:12] Speaker 03:
This court has exercised it in inappropriate cases.

[01:24:16] Speaker 04:
But this... Suppose then, I take the point, suppose though that the DCCA had already ruled.

[01:24:21] Speaker 04:
and said that the potential infliction cause of action does not extend to a non-present point.

[01:24:32] Speaker 04:
And the district judge overlooked that.

[01:24:36] Speaker 04:
Just wasn't aware of it and reached the same conclusion as reached here.

[01:24:44] Speaker 04:
And would you say we could not correct that error of law because we couldn't get past the pioneer factors?

[01:24:53] Speaker 03:
Well, I don't think it would be a pioneer question.

[01:24:55] Speaker 03:
I think it would be a 60b6 question.

[01:24:57] Speaker 04:
And I think this Court actually... I wonder which of the two elements of 60b6... I'm sorry.

[01:25:03] Speaker 04:
I'm sorry.

[01:25:03] Speaker 04:
Go ahead.

[01:25:04] Speaker 04:
I think it would be a 60b6 question, and therefore what?

[01:25:08] Speaker 03:
I think this court squarely addressed that in Salazar.

[01:25:11] Speaker 03:
I think it says in terms in Salazar that the mere error of the law is not enough under 60B6.

[01:25:20] Speaker 03:
There's a Supreme Court case to... I don't remember Salazar.

[01:25:23] Speaker 04:
Is that an FSI case?

[01:25:25] Speaker 03:
No, it is not, to my understanding.

[01:25:26] Speaker 04:
So there is an implicated foreign government or the relations of our government.

[01:25:29] Speaker 03:
No, no.

[01:25:30] Speaker 03:
It's a little 60B6 case.

[01:25:33] Speaker 03:
And it's about what constitutes extraordinary circumstances.

[01:25:37] Speaker 03:
And the extraordinary circumstances in that case, in discussing the standard, this court said that a mere era of law without more, correction of an era of law without more is not enough.

[01:25:56] Speaker 04:
And about $4.3 billion at the more.

[01:26:00] Speaker 03:
And as Judge Bates set forth, the fact that it's a consequential era of law itself is not enough.

[01:26:08] Speaker 03:
What this court has said is required for extraordinary circumstances is some form of really a disability

[01:26:19] Speaker 03:
Either a disability, I mean, a disability that essentially renders you incapable of litigating the issue, as was just this, the name is escaping me, but the Supreme Court case that approved 60B6 really involved someone who was literally incarcerated while they were served with denaturalization proceedings and literally could not participate.

[01:26:43] Speaker 03:
So the point was that...

[01:26:50] Speaker 03:
Well, I suppose under the facts of that particular proceeding, the Supreme Court found that it was.

[01:26:57] Speaker 03:
The point is that under Rule 60B6, it's a very, very high bar that this court has set.

[01:27:05] Speaker 03:
And a mere error of law, it isn't sufficient to meet it.

[01:27:09] Speaker 03:
But I think more importantly, there is no error here.

[01:27:13] Speaker 03:
The standard under the restatement

[01:27:17] Speaker 03:
is expressly allows for this kind of development of the law as it sets.

[01:27:24] Speaker 03:
It has that giant caveat.

[01:27:26] Speaker 03:
Every district court in this building that has applied it has found that it applies to family members who are not at ground zero.

[01:27:36] Speaker 08:
Of course, this is a matter for the highest court in the District of Columbia to decide, isn't it?

[01:27:44] Speaker 08:
You're suing under DC law.

[01:27:47] Speaker 03:
I don't think certification is appropriate for the reasons I elaborated, that it's not determinative of any cause here because of the forfeiture.

[01:27:58] Speaker 03:
I understand what you are saying.

[01:28:00] Speaker 03:
I also think that there's no reason to think that the DC Court of Appeals would look at this any differently than every district court in this building when they apply the same legal standard, which is Rule 46 sub 2.

[01:28:19] Speaker 08:
That may not be the argument you'd want to make to the DC Court of Appeals.

[01:28:23] Speaker 03:
It may not be.

[01:28:24] Speaker 03:
I acknowledge that.

[01:28:25] Speaker 03:
But what I would point to the DC Court of Appeals is that the majority of the majority, there are very few cases that consider this other than under federal common law.

[01:28:35] Speaker 03:
Because the terrorism cases, what we're talking about is an act of terrorism.

[01:28:39] Speaker 08:
The only point is we have a lot of district court decisions, you're telling us.

[01:28:43] Speaker 08:
Yes.

[01:28:43] Speaker 08:
But they haven't been reviewed.

[01:28:45] Speaker 03:
Well, Bettis was reviewed, but Bettis reserved the question.

[01:28:48] Speaker 03:
Bettis said, we're drawing the line at family members under federal common law.

[01:28:54] Speaker 03:
We're drawing the line at immediate families, nieces and nephews.

[01:28:56] Speaker 03:
But it expressly reserved the president's question.

[01:29:00] Speaker 03:
So it's not for lack of opportunity.

[01:29:03] Speaker 03:
I don't think this court would in any sense be going out on a limb, however, in recognizing that acts of terrorism

[01:29:12] Speaker 03:
by their very nature are intended to inflict emotional distress beyond ground zero.

[01:29:19] Speaker 08:
So everybody, go ahead.

[01:29:22] Speaker 04:
I think that's true, but they're not directed at any specific individuals, correct?

[01:29:28] Speaker 04:
I mean, the point of the Terrorist Act is to terrorize the public.

[01:29:33] Speaker 03:
Not just to kill the victims, but to terrorize the public.

[01:29:36] Speaker 03:
And I think Judge Rogers was going to ask the variant of the same question, which is, well, then can't everybody recover?

[01:29:43] Speaker 03:
And the answer to that is no, as this court explained in Bettis, that we draw the line at the immediate family.

[01:29:50] Speaker 03:
because that is a separate requirement under common law.

[01:29:55] Speaker 08:
All right?

[01:29:57] Speaker 08:
That's all I'm trying to get at.

[01:29:58] Speaker 03:
Well, under the restatement, as a matter of federal law, yes, federal law construing the restatement second, which it's important to understand, why did this court select the restatement second?

[01:30:13] Speaker 03:
It's because it felt it was bound to do so by section 1606 of the FSIA.

[01:30:20] Speaker 08:
I think it understands also that the DC Court of Appeals often

[01:30:25] Speaker 08:
follows the restatement on towards.

[01:30:28] Speaker 08:
But I'm just getting at the point that I thought a critical part of your case was your ability to recover under DC law for intentional infliction of emotional distress.

[01:30:47] Speaker 03:
For some of the plaintiffs, but not remotely all.

[01:30:52] Speaker 03:
that it is indeed a very important cause of action.

[01:30:55] Speaker 03:
For those family members that are not themselves U.S.

[01:31:01] Speaker 03:
nationals or employees or contractors, it is their cause of action, because the cause of action under 1605 cap A sub C is limited to U.S.

[01:31:17] Speaker 03:
persons, employees, contractors, et cetera.

[01:31:21] Speaker 08:
So am I to assume as well that you would take a similar position in regard to the appellant's arguments regarding the awarding of punitive damages?

[01:31:35] Speaker 03:
Yes.

[01:31:36] Speaker 03:
It's forfeited.

[01:31:38] Speaker 03:
It's also, Judge Bates' ruling is clearly correct.

[01:31:43] Speaker 03:
The Congress could not have been more clear that it wanted punitive damages applied in pending cases.

[01:31:51] Speaker 03:
Section 1083 has a subsection entitled, Application to Pending Cases.

[01:31:57] Speaker 03:
That's what the statute is all about.

[01:32:00] Speaker 03:
There's no doubt about the intended retroactivity of the statute.

[01:32:05] Speaker 03:
I believe it was Congress's title, I can confirm that if you give me just one moment.

[01:32:12] Speaker 03:
It says application to pending cases and that's 1083 subsection C of the 2008 Act.

[01:32:24] Speaker 03:
Well I think this court, well the Supreme Court in Altman

[01:32:28] Speaker 03:
said that the land grab presumption just doesn't apply to the FSIA because judgments Congress makes about how to allocate liability and immunity to foreign states is different in kind from laws that govern private conduct.

[01:32:45] Speaker 08:
I thought the punitive damages were awarded here as to those who came in under the 2008

[01:32:58] Speaker 08:
National Defense Appropriation Act Amendment.

[01:33:02] Speaker 03:
Which is an amendment to 1605A of the foreign.

[01:33:08] Speaker 03:
It replaced section.

[01:33:10] Speaker 08:
But the answer is yes.

[01:33:12] Speaker 03:
Yes.

[01:33:13] Speaker 03:
It replaced part of the Foreign Sovereign Immunities Act and is now part of the foreign, regarded as part of the Foreign Sovereign Immunities Act.

[01:33:20] Speaker 03:
But more importantly, the ration.

[01:33:21] Speaker 08:
So has this decision by Congress

[01:33:26] Speaker 08:
occurred long after the events that caused your client's harm.

[01:33:35] Speaker 03:
I think that was true when Congress enacted the Plato Amendment.

[01:33:39] Speaker 03:
It was 13 years after the Beirut bombings.

[01:33:43] Speaker 08:
That was providing a cause of action.

[01:33:45] Speaker 03:
And for punitive damages.

[01:33:47] Speaker 08:
Right.

[01:33:48] Speaker 08:
There had been no federal cause of action before that.

[01:33:51] Speaker 03:
But the point of the Plato Amendment was not merely to provide a cause of action.

[01:33:56] Speaker 03:
It was also to provide punitive damages.

[01:33:58] Speaker 03:
And district courts in this building repeatedly awarded punitive damages under the Plato Amendment.

[01:34:04] Speaker 03:
There's no question what Congress intended here.

[01:34:07] Speaker 03:
And so the retroactivity presumption really just falls away, because it's at most a presumption.

[01:34:14] Speaker 03:
that can be overcome by Congress's clear statements and clear intent.

[01:34:19] Speaker 03:
And we have that.

[01:34:21] Speaker 03:
We have that here.

[01:34:24] Speaker 05:
Right.

[01:34:24] Speaker 03:
You need to wrap it up.

[01:34:25] Speaker 03:
Yeah.

[01:34:26] Speaker 03:
Well, if the court has no further questions.

[01:34:29] Speaker 05:
All right.

[01:34:30] Speaker 03:
Thank you.

[01:34:31] Speaker 03:
Thank you.

[01:34:33] Speaker 05:
Does Mr. Curran have any time?

[01:34:35] Speaker 05:
No, he doesn't.

[01:34:36] Speaker 05:
OK.

[01:34:37] Speaker 05:
Why don't you take a couple of minutes and answer any questions?

[01:34:41] Speaker 01:
Thank you, Your Honor, and thank you for your patience overall.

[01:34:46] Speaker 01:
The declaration of Ambassador Maiawi stands unrebutted, explaining the circumstances behind the absence of Sudan from this litigation for a number of years.

[01:34:58] Speaker 01:
Sudan is now here, both on direct appeal and on the appeal for the denials of the motion to vacate.

[01:35:05] Speaker 01:
I think Mr. McGill's arguments seem to be focused only on the motion to vacate standard, but we are also here on direct appeals.

[01:35:13] Speaker 01:
In our brief, we undertook to address every factual point that the district court stated in finding material support and proximate causation, and we tried to meticulously explain why the evidence was inadmissible and not probative of material support and punitive damages and proximate causation.

[01:35:40] Speaker 01:
We also address a number of other arguments in our brief that Mr. McGill touched upon, punitive damages.

[01:35:48] Speaker 01:
I mean, the Altman case was dealing with the question of immunity, not the question of retroactive imposition of punishment.

[01:35:55] Speaker 01:
I think it's a pretty clear application of Landsgraf that punitive damages cannot be applied here.

[01:36:00] Speaker 01:
There's no clear statement in 1083 or elsewhere that Congress intended retroactive punitive damages.

[01:36:07] Speaker 01:
The statute of limitations is another thing.

[01:36:11] Speaker 01:
Many of the damages being sought in this case now are based on lawsuits that were brought in 2010 and 2012, well after the hearing and well after the imposition of liability on the Owens case.

[01:36:26] Speaker 01:
It's true the Owens case was filed in 2001, but it was the 2008 enactment by Congress, enacting 1605 capital A, that led to the flurry of the other lawsuits,

[01:36:37] Speaker 01:
Uh, the, uh, Judge Henderson, you asked earlier, uh, I think of both, both Mr. McGill and Mr. Newburger about the standard on 1608E.

[01:36:49] Speaker 01:
Well, 1608E, of course, requires that the district court, even where you have a defaulting foreign state, to establish the claim or right to relief by evidence.

[01:37:00] Speaker 01:
The standard is, I think, the implication there is preponderance of the evidence, as Mr. Neuberger said.

[01:37:06] Speaker 01:
The question on both direct appeal and on the appeal from the denials of vacatur is, did the district court establish the claims, or did the plaintiffs establish their claims, by evidence?

[01:37:20] Speaker 01:
And Kim teaches us that that means admissible evidence under the federal rules of evidence.

[01:37:26] Speaker 01:
The Jarez case, J-E-R-E-Z, by this court establishes that practical concepts and its solicitude of the interests of foreign states in the U.S.

[01:37:38] Speaker 01:
litigation is supplemented by the 1608E standard.

[01:37:43] Speaker 01:
It is true that foreign states are given significant breaks

[01:37:47] Speaker 01:
when they're faced with litigation in the U.S.

[01:37:51] Speaker 01:
That should not be considered surprising because the very notion that a foreign state can be sued in a domestic court is a controversial subject.

[01:38:00] Speaker 01:
But here, Sudan, which was riven with civil war and humanitarian crises for years, resulting in the partition of the country,

[01:38:09] Speaker 01:
not just a civil war, but a civil war resulting in a split of the country is now here ready, willing, and able to litigate this case on the merits.

[01:38:20] Speaker 01:
If there's any prejudice to the plaintiffs as a result of that, we're willing to consider steps to mitigate that prejudice, including waiving the requirement that any victims have to testify again and other measures.

[01:38:32] Speaker 01:
We just want a litigation on the merits.

[01:38:37] Speaker 01:
So thank you very much for your time.

[01:38:39] Speaker 05:
All right.

[01:38:40] Speaker 05:
Thank you.

[01:38:41] Speaker 05:
Mr. Neuberger, will you submit

[01:38:45] Speaker 05:
Now, I'm not sure what you're submitting, but make sure your opposing counsel gets a copy.

[01:38:51] Speaker 05:
It's what Judge Rogers wanted.

[01:38:53] Speaker 02:
Yes, understood.

[01:38:54] Speaker 02:
And of course, we will serve the opposing side.

[01:38:56] Speaker ?:
OK.