Opati v. Republic of Sudan, 590 U.S. ___, 140 S. Ct. 1601 (2020) (U.S. Supreme Court)
Opati v. Republic of Sudan is a landmark Supreme Court decision addressing whether victims of terrorism can recover punitive damages from foreign states for attacks that occurred before Congress enacted a new terrorism exception to the Foreign Sovereign Immunities Act (FSIA) in 2008.
Did Congress, in enacting 28 U.S.C. § 1605A and related provisions in § 1083 of the 2008 NDAA, clearly authorize punitive damages against foreign states for terrorist conduct that occurred before the statute's enactment?
Under Landgraf v. USI Film Products, courts will not apply a statute retroactively to impose new liabilities for past conduct absent a clear statement of congressional intent. The FSIA generally bars punitive damages against foreign states, 28 U.S.C. § 1606, unless Congress specifically provides otherwise. In 2008, Congress enacted 28 U.S.C. § 1605A, which both creates a terrorism exception to immunity and supplies a federal cause of action authorizing recovery of economic damages, solatium, pain and suffering, and punitive damages. The NDAA § 1083(c) establishes that § 1605A applies to certain prior actions and permits refiling or conversion of preexisting suits arising from pre-enactment terrorist acts, thereby extending § 1605A's remedies, including punitive damages, to those cases.
Yes. Congress clearly authorized punitive damages against foreign states for pre-2008 terrorist conduct when it enacted § 1605A and, through § 1083(c) of the NDAA, made that provision applicable to suits based on pre-enactment acts. The Court reversed the D.C. Circuit's vacatur of punitive damages and remanded.
Opati confirms that Congress can—and did—make punitive damages available against foreign states for acts of terrorism predating the 2008 FSIA amendments. For law students, the case is a clean application of Landgraf's retroactivity framework to a remedial question, a lesson in how specific statutory authorizations can override general prohibitions (here, § 1605A(c) vs. § 1606), and an illustration of how transition provisions like NDAA § 1083(c) signal retroactive reach. Practically, Opati empowers victims of historic terrorist attacks to pursue punitive damages against designated state sponsors, reshaping settlement dynamics and the remedial landscape in terrorism litigation under the FSIA.