Sovereign Immunity

American contractors Olin Armstrong and Jack Hensley provided technical and operational assistance to the U.S. military in Iraq, where they were kidnapped, held hostage, and ultimately beheaded. The executioner, Mus’ab al-Zarqawi, and his terrorist organization, known as al-Qaeda in Iraq, claimed responsibility.

The two contractors’ families brought state law claims in district court alleging the Syrian Arab Republic (Syria) provided material support to both Zarqawi and al-Qaeda, facilitating the deaths of the two men. The families relied on the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq. While the Act gives foreign states immunity from the jurisdiction of U.S. courts, its Sections 1605 through 1607 waive this immunity when, inter alia, the foreign state provides material support for hostage taking or is designated a state sponsor of terrorism. Syria had been designated a state sponsor of terrorism since 1979. Syria failed to respond, and the court entered a default judgment for the families.

Before the district court issued its opinion, the U.S. president signed the National Defense Authorization Act for Fiscal Year 2008 (NDAA) into law; its Section 1083(a) amended the FSIA by repealing Section 1605(a)(7) and adding a new provision, Section 1605A, in its place. Unlike its predecessor, Section 1605A created a federal rule of decision against foreign states and provided for punitive damages; the new section could also apply to pending cases initially brought under Section 1605(a)(7).

The families converted their claim to proceed under Section 1605A, arguing their federal claim for relief was effectively the same as the claim previously served on Syria. The district court granted the motion, holding new service of process was unnecessary. The court entered a default judgment in favor of the families and awarded damages of over $400 million.

Syria appealed to the U.S. Court of Appeals for the D.C. Circuit, arguing the families failed to effectuate service of process and the district court lacked jurisdiction. Rather than remand the case, the D.C. Circuit placed Syria’s appeal in abeyance pending the lower court’s decision whether it intended to vacate the default judgment or otherwise grant relief. Thereafter, Syria filed a Rule 60(b) motion seeking to vacate the judgment, citing several procedural, constitutional, and jurisdictional defects. Interpreting its jurisdiction as limited under Hoai v. Vo, 935 F.2d 308 (D.C...