UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STUART E. STEINBERG, et al.,

Plaintiffs,

v. Case No. 20-cv-2996 (RCL)

REPUBLIC OF SUDAN,

Defendant.

MEMORANDUM OPINION

Plaintiffs in this case are U.S. citizens who were themselves injured, as well as the estates

and family members of U.S. citizens who were injured or killed, by terrorist attacks carried out by

the Islamic Resistance Movement ("Hamas") in Israel and Palestine. They ask the Court to hold

the Republic of Sudan ("Sudan") liable under the Foreign Sovereign Immunities Act ("FSIA"), 28

U.S.C. § 1605A(c), for materially supporting Hamas in carrying out the attacks. After plaintiffs

filed the instant case, the United States and Sudan signed a bilateral agreement espousing and

settling terrorism-related claims against Sudan and restoring Sudan's sovereign immunity in U.S.

courts. Congress passed legislation implementing the agreement shortly thereafter. Accordingly,

Sudan moves to dismiss plaintiffs' action for, among other arguments, lack of subject-matter

jurisdiction. The United States intervenes in support of Sudan's position.

Another court in this District previously dismissed a similar complaint in Mark v. Republic

of Sudan, No. l:20-cv-03022 (TNM),

(D.D.C. Oct. 7, 2021). 1 Coming to the

same conclusion, this Court will GRANT Sudan's motion to dismiss.

1 The Mark plaintiffs appealed the dismissal to the United States Court of Appeals for the D.C. Circuit. See No. 21- 5250 (D.C. Cir. Nov. 3, 2021). Oral argument was held on October 28, 2022. No opinion has been released as of the date of this filing.

1 I. BACKGROUND

A. Factual Background2

Plaintiffs are victims, family members of victims, and the estates of victims injured by

Hamas in Israel and Palestine. Am. Comp!., ECFNo. 7, ff 1-36. 3 The United States has designated

Hamas as a Specially Designated Global Terrorist Organization, Foreign Terrorist Organization,

and Specially Designated Terrorist.

,r 96. Six families form the plaintiff group: the Steinberg, Henkin, Fuld, Goodman, Rosenfeld, and Vaknin families (collectively "plaintiffs").

,r,r 1-36. The Steinberg, Henkin, and Fuld plaintiffs are the surviving family members and estates

of U.S. citizens killed by Hamas.

,r,r 1-24. On July 20, 2014, Max Steinberg, who was serving in the Israeli Defense Forces ("IDF"), died when a Hamas-launched anti-tank rocket hit his vehicle

in Gaza, Palestine.

,r,r 43-46. On October 1, 2015, Eitam Henkin and his wife were shot in front of their four children by Hamas members during a kidnapping attempt in the Palestinian town of

Beit Furik.

,r,r 47-48. On September 16, 2018, Ari Fuld was fatally stabbed by aHamas member on his way to a shopping center in Gush Etzion Junction in Israel.

,r,r 51-52. Investigations

confirmed that Hamas was responsible for the Henkin and Fuld deaths.

ff 49, 53. The Goodman, Rosenfeld, and Vaknin plaintiffs suffer severe trauma as well as mental and

emotional distress caused by actual and threatened Hamas attacks.

,r,r 25-36. Asher and

Batsheva Goodman, Ephriam and Kineret Rosenfeld, Bracha and Yosef Vaknin, and their

respective children all live in Israel near the Gaza border.

ff 56, 63--05, 79. All three families have observed Hamas-launched rockets, as well as incendiary balloons and kites, near their homes.

2 The Court treats all the well-pleaded allegations as true. Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000). 3The numbering of paragraphs in the Amended Complaint restarts on page 8. Citations to paragraphs in the Amended Complaint refer to the restarted paragraph numbers.

2

,r,r 57, 65, 81. The parents fear that they and their children will be injured or killed by the

explosives and that their children will mistake Hamas-launched incendiary balloons and kites for

toys.

,r,r 58, 65, 82. Though none of these individuals have been physically injured by the

explosives, the Rosenfelds' home was significantly damaged by a Hamas rocket on July 14, 2018.

,r 68. Many members of the Goodman, Rosenfeld, and Vakin families have sought counseling services in the past or are receiving such services in the present.

,r,r 60-61, 76-78, 87. B. Executive and Legislative Background

i. Claims Settlement Agreement

In 2019, nearly thirty years after the United States designated Sudan as a state sponsor of

terrorism, the two countries began the process of restoring formal diplomatic relations after

Sudan's transition to democracy. U.S. Mem. in Supp. of Def.'s Mot. to Dismiss ("U.S. Mem."),

ECF No. 34, at 5-6. As part of the process of normalizing relations, the United States negotiated

with Sudan to resolve then-pending terrorism-related lawsuits. Id. at 6.

On October 30, 2020, the United States and Sudan signed the bilateral Claims Settlement

Agreement ("CSA"). See Claims Settlement Agreement, U.S.-Sudan, Oct. 30, 2020, T.I.A.S. No.

21-209 (entered into force Feb. 9, 2021), ECF No. 34-1. The preamble indicated that the agreement

was part of a broader effort to "develop the relations between" the United States and Sudan "in a

spirit of friendship and cooperation, especially in light of Sudan's ongoing transition to

democracy[.]" Id. pmbl. The preamble further"[ r]ecogniz[ ed] and condemn[ ed] the horrific nature

of the 1998 bombings of the U.S. Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, and

the 2000 attack on the U.S.S. Cole, and express[ed] deepest sympathies for victims[.]" Id.

Additionally, the preamble acknowledged "that certain victims of these attacks have asserted

claims in U.S. courts against Sudan in relation to these attacks[,]" and "that while Sudan denies

3 any involvement in these attacks, it has been willing to address these claims as part of its effort to

fully normalize relations with the United States[.]" Id. Finally, the preamble "acknowledg[ ed] that

Sudan has already paid compensation pursuant to certain private settlements to a number of victims

of the 2000 attack on the U.S.S. Cole" and "recogniz[ed] Sudan's willingness to address additional

claims arising out of the bombings of the U.S. Embassies and the attack on the U.S.S. Cole[.]" Id.

With these specific purposes in mind, the parties agreed that "[t]he objective of this

Agreement is to reach a comprehensive settlement that" "settles the claims of the United States of

America and, through espousal, those of U.S. nationals" where "such claims, suits, or actions arise

from personal injury (whether physical or non-physical, including emotional distress), death, or

property loss caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking or

detention or other terrorist act, or the provision of material support or resources for such an act,

occurring outside of the United States of America and prior to the date of execution of this

Agreement." Id. art. II. The CSA's language closely resembles the text of the FSIA's terrorism

exception to sovereign immunity, codified at 28 U.S.C. § 1605A(a)(l). 4 Def.'s Mem. in Supp. of

Mot. to Dismiss ("Def.'s Mem."), ECF No. 23-1, at 2.

The CSA further provided that, upon the agreement's entry into force through legislation

implementing it, U.S. law would broadly: (i) "provide[] the same sovereign, diplomatic, and

official immunity to Sudan and its property ... as is normally provided by the United States to

4 That exception applies to: in any case ... in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting in the scope of his or her office, employment, or agency.

28 U.S.C. § 1605A(a)(l).

4 other states and their property[,]" and (ii) "bar[] and preclude[] all suits and actions specified in

Article II[.]" Id. art. IIl(l) & V.

In return for this restoration of sovereign immunity and preclusion of terrorism-related

suits, Sudan agreed to pay $335 million to compensate victims of three enumerated terrorist

attacks. Id. art. III(2). These attacks were: (1) the August 7, 1998 bombing of the U.S. embassies

in Nairobi, Kenya, and Dar es Salaam, Tanzania; (2) the October 12, 2000 bombing of the U.S.S.

Cole in Yemen; and (3) the January 1, 2008 killing in Sudan of United States Agency for

International Development employee John Granville. Id. annex(l). Specifically, the parties

intended the funds to be used to compensate U.S. and foreign nationals who brought claims related

to these attacks through nine identified lawsuits. 5

Around the same time, the President certified to Congress his intent to rescind Sudan's

designation as a state sponsor of terrorism. See Certification of Rescission of the Determination

regarding the Government of Sudan (Oct. 26, 2020). Following the requisite waiting period, the

Secretary of State formally rescinded the designation. See Rescission of Determination Regarding

Sudan,

(Dec. 8, 2020).

ii. Sudan Claims Resolution Act

Two months after the United States and Sudan signed the CSA, Congress passed the Sudan

Claims Resolution Act ("SCRA"). SCRA, Consolidated Appropriations Act of 2021,

tit. XVII,

(2020). The SCRA stated that it was the "sense of Congress

that" "the United States should support Sudan's democratic transition"; "as part of the process of

5 These cases were: Owens v. Republic of Sudan, No. 01-cv-2244 (IDB) (D.D.C.); Wamai v. Republic ofSudan, No. 08-cv-1349 (IDB) (D.D.C.); Amduso v. Republic ofSudan, No. 08-cv-1361 (IDB) (D.D.C.); Mwila v. Islamic Republic of Iran, No. 08-cv-1377 (IDB) (D.D.C.); Onsongo v. Republic of Sudan, No. 08-cv-1380 (IDB) (D.D.C.); Khaliq v. Republic of Sudan, No. 10-cv-356 (IDB) (D.D.C.); Opati v. Republic of Sudan No. 12-cv-1224 (IDB) (D.D.C.)· Granville v. Republic of Sudan, No. 2018-28 (P.C.A.); and TCJttt v. Islamic Republic oflran, No. 20-cv- 1557 (RC) (D.D.C.).

5 restoring normal relations between Sudan and the United States, Congress supports efforts to

provide meaningful compensation to individuals employed by or serving as contractors for the

United States Government, as well as their family members, who personally have been awarded

by a United States District Court a judgment for compensatory damages against Sudan;" and "the

terrorism-related claims of victims and family members of the September 11, 2001, terrorist

attacks must be preserved and protected."

§ 1702, 134 Stat. at 3291.

SCRA provided that, if certain conditions were met: Sudan "shall not be subject to the

exceptions to immunity from jurisdiction, liens, attachment, and execution under ... section

1605A ... of[the FSIA,]" "section 1605A(c) [of the FSIA] ... and any other private right of action

relating to acts by a state sponsor of terrorism arising under Federal, State, or foreign law shall not

apply with respect to claims against Sudan"; and "any attachment, decree, lien, execution,

garnishment, or other judicial process brought against property of Sudan" "shall be void." Id.

§ l 704(a)(l)(A)-(C), 134 Stat. at 3292. The Secretary of State was to provide Congress with a

certification that the conditions were met in order to trigger the restoration of Sudan's sovereign

immunity. 6 Id. § l 704(a)(2), 134 Stat. at 3293.

As to the scope of Sudan's new sovereign immunity, SCRA stated that such immunity

"shall apply to all conduct and any event occurring before" the date of the Secretary of State's

certification "regardless of whether, or the extent to which, application of that subsection affects

any action filed before, on, or after that date." Id. § 1704(b), 134 Stat. at 3293. However, the SCRA

specifically carved out from this general rule pending claims "in the multidistrict proceeding 03-

MDL-1570 in the United States District Court for the Southern District of New York," litigation

6 Those conditions were: (1) the Secretary of State's certification to Congress that Sudan's designation as a state sponsor of terrorism had been formally rescinded; (2) that Sudan made final payments with respect to the private settlement of claims by victims of the U.S.S. Cole bombing; and (3) that the United States received the funds to pay compensation to Granville's family and to victims of the embassy bombings. See SCRA § l 704(a)(2),

.

6 relating to the terrorist attacks in the United States on September 11, 2001. Id. § 1706(a)(3), 134

Stat. at 3295; see In re Terrorist Attacks on Sept. 11, 2001, No. 03-mdl-01570 (S.D.N.Y.).

In April 2021, the Secretary of State certified that both the United States and Sudan had

complied with their obligations under the SCRA. See Certification Under Section 1704(a)(2) of

the Sudan Claims Resolution Act Relating to the Receipt of Funds for Settlement of Claims

Against Sudan,

(Apr. 12, 2021).

C. Procedural Background

Plaintiffs are the U.S. citizen victims, family members of victims, and estates of victims of

terrorist attacks allegedly carried out by Hamas in Israel and Palestine between 2014 and 2020.

See Am. Compl. ,r,r 1-36. Plaintiffs bring their case under 28 U.S.C. § 1605A(c), the FSIA's

terrorism exception, advancing various tort theories of liability on the allegation that Sudan

provided material support and resources to Hamas to carry out these attacks. See id. ,r,r 111-28. Plaintiffs seek several forms of compensatory damages, such as economic damages, pain and

suffering, and solatium, as well as punitive damages. See id. ,r,r 114, 118, 123-28. Plaintiffs filed their original complaint on October 19, 2022. See Compl., ECF No. 1. Plaintiffs then filed an

amended complaint approximately one month later. See Am. Compl. Plaintiffs served Sudan on

February 27, 2022 under cover of diplomatic note, one of the valid methods of service prescribed

in

(a). Return of Service, ECF No. 19.

In response, Sudan appeared and moved to dismiss the Amended Complaint under Federal

Rules of Civil Procedure 12(b)(l), (b)(2), and (b)(6). Def.'s Mot. to Dismiss, ECF No. 23. Sudan

argues that the CSA and SCRA restored its sovereign immunity in U.S. courts and terminated

terrorism-related claims against it, and thus plaintiffs' case lacks personal jurisdiction, subject-

7 matter jurisdiction, and a valid private right of action. 7 Id. at 1. Plaintiffs challenge the CSA and

SCRA as violative of their Fifth Amendment equal protection rights. 8 Pls.' Opp' n to Mot. to

Dismiss ("Pls.' Opp'n"), ECF No. 24, at 14-15. Sudan in reply insists that both the CSA and

SCRA are valid exercises of government power. See generally Def. 's Reply, ECF No. 28.

The plaintiffs filed a notice of a constitutional question, ECF No. 25, which this Court

certified to the Attorney General under

(a), ECF No. 27. The United States then

intervened, as of right, in support of Sudan and the constitutionality of the CSA and SCRA. See

U.S. Mem. Plaintiffs filed a response to the United States' memorandum. Pls.' Resp. to U.S. Mem.

("Pls.' Resp."), ECF No. 35. The United States replied to plaintiffs' response. U.S. Reply, ECF

No. 37. Sudan's motion is now ripe for review.

II. LEGALSTANDARD

The FSIA is the "sole basis for obtaining jurisdiction over a foreign state in our

courts." Argentine Republic v. Amerada Hess Shipping Corp.,

(1989). Under

the FSIA, foreign states are presumptively immune from the jurisdiction of U.S. courts subject to

several enumerated exceptions. See

. A district court "has subject matter

jurisdiction over a suit against a foreign state if-and only if-the plaintiffs claim falls within"

7 Because the Court agrees with Sudan that this case must be dismissed for lack of subject-matter jurisdiction, the Court will not consider Sudan's alternative arguments. 8 Sudan argues that plaintiffs' constitutional challenge is procedurally flawed because it was raised in an opposition brief instead of an amended complaint. Def 's Reply, ECF No. 28, at 1-2. But this argument mischaracterizes pleading requirements. A plaintiff has no obligation to anticipate and respond to a defendant's potential defenses in the complaint, nor is a plaintiffs rebuttal to a defendant's affinnative defense equivalent to pleading a new claim for relief. See Owens v. Republic of Sudan,

(D.D.C. 2006) ("Because sovereign immunity is in the nature of an affirmative defense, the plainti ff need not prove the ab ence of sovereign immunity in the first instance[.)"), ajf'd,

(D.C. Cir. 2008). Here plaintiffs invoked the constitutional ity of the statute at issue as a way of opposing Sudan's affinnative defense of sovereign immunity. Therefore, the constitutional question is properly before the Court.

8 one of these exceptions. Odhiambo v. Republic of Kenya,

(D.C. Cir. 2014). "[I]f

no exception applies, the district court has no jurisdiction."

A court "generally may not rule on the merits of a case without first determining that it has

jurisdiction over the category of claim in the suit (subject-matter jurisdiction)[.]" See Sinochem

Int'! Co. Ltd. v. Malaysia Int'! Shipping Corp.,

(2007). If the court

determines that it lacks subject-matter jurisdiction, it must dismiss the case. Fed. R. Civ. P.

12(h)(3). The standard of review for a motion to dismiss depends upon the purpose of the motion.

Dentons US. LLP v. Republic of Guinea,

(D.D.C. 2015). "[T]he Court

examines subject matter jurisdiction with more scrutiny than in non-FSIA cases."

The Court

must "assume the truth of all material factual allegations in the complaint," Am. Nat'l Ins. Co. v.

FDIC,

(D.C. Cir. 2011), and "construe the complaint liberally, granting

plaintiff the benefit of all inferences that can be derived from the facts alleged." Thomas v.

Principi,

(D.C. Cir. 2005). The Court may look to materials beyond the

complaint to decide whether subject-matter jurisdiction exists. See Am. Freedom L. Ctr. v. Obama,

(D.C. Cir. 2016). The plaintiff bears the burden of establishing subject-matter

jurisdiction. Simon v. Republic ofHungary,

, 99 (D.D.C. 2020).

III. DISCUSSION

Plaintiffs recognize that the SCRA, if valid, restores Sudan's sovereign and divests this

Court of subject-matter jurisdiction. See Pls.' Reply at 1. Plaintiffs seek to avoid this outcome by

arguing that the SCRA is unconstitutional in two ways under the Fifth Amendment's implicit

equal-protection guarantee. 9 First, plaintiffs assert that the CSA violates the Fifth Amendment

9 Plaintiffs bring their case under the Fifth Amendment's due process clause which provides, in relevant part, that "[n]o person shall be ... deprived of life, liberty, or property, without due process of law." U.S. canst., amend. V. The Fifth Amendment, which applies to the federal government, does not contain an explicit equal protection clause. The

9 because it results in disparate treatment between those plaintiffs with terrorism-related actions

against Sudan who can settle their claims and receive compensation-namely cases involving the

identified U.S. embassy bombings, U.S.S. Cole attack, and death of Granville-and the instant

plaintiffs, who cannot pursue their claims, thereby "distribut[ing] the benefits of the settlement in

a selective, arbitrary, and capricious manner." Pls.' Opp'n. at 15-16. Plaintiffs also identify the

SCRA's carve-out for the September 11, 2001 multidistrict litigation as a separate instance of

arbitrary differential treatment. Id. at 16-17. Second, plaintiffs claim that the SCRA violates the

Fifth Amendment because this disparate treatment impinges on a fundamental right, their access

to the courts, as they are cannot pursue their claims against Sudan in U.S. courts while the

claimants in the pending multidistrict litigation are still able to pursue their claims. Id. at 19.

If the portion of the SCRA restoring sovereign immunity to Sudan is unconstitutional, then

the Court retains subject-matter jurisdiction if an exception to Sudan's sovereign immunity under

the FSIA applies. If the statute is not unconstitutional, however, then the Court has no subject-

matter jurisdiction and the Amended Complaint must be dismissed. Accordingly, the Court must

address plaintiffs' substantive constitutional claims to arrive at a jurisdictional determination.

After review, the Court concludes that plaintiffs have failed to meet their burden to

demonstrate that this Court maintains subject-matter jurisdiction over their case. Thus, the Court

agrees with Sudan and the United States that the case must be dismissed.

Fourteenth Amendment, which applies only to the states, does contain such a clause and provides in relevant part, that "[n]o State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws." Id., amend. XIV. The Supreme Court has interpreted these respective clauses to mean that the concept of equal protection and due process, both stemming from our American ideal of fairness, are n9t mutually exclusive" and that " equal protection of the laws' is a more explicit safeguard of prohibited unfairness than due process of law[.]"' Bolling v. Sharpe

(1954). Later, the Col.l:rt confirmed thatthe ' [e] qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." Buckley v. Valeo ,

(1976). Therefore, this Court analyzes plaintiffs' constitutional challenges under the equal-protection lens. A. Plaintiffs Have Not Demonstrated that the CSA and SCRA Distinguish Among Different Claimants Without a Rational Basis

Plaintiffs first argue that the CSA and SCRA violate the Fifth Amendment's equal-

protection guarantee by arbitrarily (1) espousing and settling claims of certain plaintiffs with

terrorism-related cases against Sudan, (plaintiffs in the identified U.S. embassy bombings, U.S.S.

Cole attack, and death of Granville), and (2) allowing other plaintiffs to proceed with their claims

(plaintiffs in the identified September 11, 2001 multidistrict litigation) while denying their claims

the same treatment.

. Plaintiffs agree that this challenge is subject to rational-basis

review but nevertheless argue that both distinctions bear no rational relation to the government's

stated goals in the CSA and SCRA and thus impermissibly deny them equal protection of the law.

. Sudan and the United States argue that the classifications easily survive rational-basis

review. Def.'s Reply at 3; U.S. Mem. at 11. The Court agrees with Sudan and the United States.

Under rational-basis review, government action is "presumed to be valid and will be

sustained if the classification drawn by the statute is rationally related to a legitimate state interest."

City of Cleburne v. Cleburne Living Ctr.,

(1985). Because a statute survives

where there is a mere "relation between the classification adopted and the object to be attained,"

rational-basis review is the "most deferential of standards" of review for constitutional challenges.

Romer v. Evans,

(1996). "[I]t is entirely irrelevant for constitutional purposes

whether the conceived reason for the challenged distinction actually motivated the legislature."

FCCv. Beach Commc'ns, Inc.,

(1993). "[T]hose attackingtherationalityofthe

legislative classification have the burden" to demonstrate otherwise.

"A plaintiff bringing a

constitutional challenge to a regulation on rationality grounds thus faces the unenviable task of

refuting 'every conceivable basis which might support it.'" Sanchez v. Off ofState Superintendent

ofEduc.,

(D.C. Cir. 2022) (quoting Beach Commc'ns,

).

11 As a threshold matter, Sudan argues, and plaintiffs do not directly dispute, that restoring

and improving diplomatic relations with Sudan is a legitimate U.S. state interest, that the executive

branch has significant foreign affairs authority to negotiate settlement ·agreements with other

nations, and that Congress has the authority to enact legislation operationalizing those

agreements. 10 Def. 's Reply at 4-5. The Court agrees and sees no occasion to doubt the

government's "sensitive interests in national security and foreign affairs" and "in preventing

terrorism." Holder v. Humanitarian L. Project,

, 36 (2010). And settlement of

"outstanding claims by nationals of one country against the government of another country" is an

effective way of resolving "sources of friction between the two sovereigns." Dames & Moore v.

Regan,

(1981) (internal quotation marks and citation omitted). One such well-

recognized form of settlement is espousal, "whereby one government adopts or 'espouses' and

settles the claim of its nationals against another government." Antolak v. United States,

(D.C. Cir. 1989) (internal citation omitted). The federal government's "absolute power"

"to espouse claims does not depend on the consent of the private claimholder." Asociacion de

Reclamantes v. United Mexican States,

(D.C. Cir. 1984) (Scalia, J.).

Moreover, "[ o]nee it has espoused a claim, the sovereign has wide-ranging discretion in disposing

of it. It may compromise it, seek to enforce it, or waive it entirely."

With these principles in mind, the Court will address plaintiffs' two challenged

classifications in tum.

10 1n fact, contrary to p laintiffs' assertion, iti the executive wide foreign affairs authority, and the executive's ability to enter into settlement agreements that" is a longstanding policy" not any policy to 'allow civil actions to proceed against those who support international terrorism." Pls,' Opp' n at 17· Compare Am. Ins. Ass 'n v. Garamendi,

(2003) (noting that "[m]aking executive agreements to ettle claims of American nationals against foreign governments is a p articularly longstanding practice, the first example being as early as 1799"), with In re Islamic Republic of h-an Terrorism L itig. ,

, 79 (D.D. C. 2009) (noting that Congress first recognized a private cause of action for victims of state-sponsored terrorism in 2008).

12 Plaintiffs first claim that there is no rational basis for the CSA and SCRA's espousal,

settlement, and disbursement of compensation for claims in the identified U.S. embassy bombings,

U.S.S. Cole attack, and death of Granville but not claims such as theirs. Pls.' Opp'n at 15-16.

Essentially, plaintiffs object to their denial of compensation while other plaintiffs are eligible for

compensation. U.S. Mem. at 14-15.

Sudan offers a number of rational bases for treating the instant plaintiffs' claims

differently from those other plaintiffs, including: (1) different procedural postures (the other

plaintiffs' claims were resolved by the date of the CSA while the instant case was only just

filed), Def ' s Reply at 6-8; (2) different judgment contexts (some of the other plaintiffs' claims

were resolved through default judgments under a previous authoritarian Sudan while newly-

democratic Sudan appeared here), id. at 6-7; (3) the presence of private settlement agreements

(some of the other plaintiffs' claims were resolved this way while plaintiffs in the instant case

seek to litigate their claims), id. at 7-8; (4) the scale and nature of the terrorist attacks at issue

(other plaintiffs' claims involved targeting of specific U.S. government interests and personnel

while plaintiffs here do not allege specific targeting), id. at 9-10; and (5) the timing of the

actions (liability on other plaintiffs' claims was determined years ago while no court has ruled on

the merits of the instant plaintiffs' claims), id. at 11-13.

Plaintiffs do not respond to all of Sudan's arguments, nor do they refute every

conceivable basis for the CSA and SCRA. Thus, they fail to meet their burden under rational-

basis review. Beach Commc'ns,

. Moreover, far from Sudan's arguments being

impermissible "after-the-fact rationalizations," Pl. 's Opp'n at 18, these justifications demonstrate

that the CSA and SCRA were both entirely rational means of achieving the legitimate end of

supporting a nascent democracy, securing justice for past victims of terrorism, and preventing

13 future terrorist attacks. 11 U.S. Mem. at 17. As it is well-established, "[d]efining the class of

persons" who may are eligible for compensation-"much like classifying [all] government

beneficiaries-"inevitably requires that some persons who have an almost equally strong claim

to favored treatment be placed on different sides of the line, and the fact that the line might have

been drawn differently at some points is a matter for legislative, rather than judicial,

consideration."' Beach Commc 'ns,

- 16 (internal citation omitted).

First, plaintiffs argue that classifying claims based on timing does not survive rational-

basis review because one of the cases included in the CSA' s list of settlements for compensation,

Taitt v. Islamic Republic ofIran, 20-cv-1557 (RC) (D.D.C.), was not, in fact, filed years before.

PL' s Opp'n at 18. But as Sudan correctly points out, though Taitt was filed in 2020, that case

involved victims of the U.S.S. Cole attack, and a court determined Sudan's liability for that

attack nearly fifteen years before the CSA. De£ 's Reply at 6 (citing Harrison v. Republic of

Sudan,

(D.D.C. 2012) (Lamberth, CJ.) and Rux v. Republic of Sudan,

(E.D. Va. 2007)). Thus, Taitt fits neatly in the group of other cases

designated for compensation. 12

Second, plaintiffs insist that differentiating between claimants who already held default

judgments against Sudan and those who did not is irrational because the CSA and SCRA also

permitted compensation for plaintiffs that engaged in certain private settlement agreements. Pls.'

Opp'n at 18. Plaintiffs' assertion fails for the same reason as their previous argument-these

11 What is more, after-the-fact rationalizations are perfectly acceptable because a statute passes rational-ha is review if one can even hypothesize that the policymaker might have enacted the policy for u certain reason. See Williamson v. Lee Optical of Okla. , Inc.,

(1955). 12 Plaintiffs further argue that timing is not a rational classification because they timely filed their claims as required under 28 U.S.C § 1605A(b)(2). Pls.' Opp'n at 18. But, as discussed above, it is the fact of when the claim was filed, and specifically the fact that liability was already determined at the time of the CSA, not whether the claim could be filed, that matters for the timing classification.

14 private settlement agreements were already in existence at the time of the CSA and therefore

presumably included in the executive branch's bargain. 13 Furthermore, given Sudan's necessarily

finite resources, limiting compensation to "claims where [Sudan] was already on the hook was

rational." Mark,

, at *3. Plaintiffs' response is that the CSA and SCRA are

ambiguous as to whether the private settlement agreements they contemplated were those already

paid or shortly would receive payment, as Sudan and the United States argue, or could be paid

using the settlement funds, as plaintiffs read it. Pl.'s Resp. at 2-5. This argument elides the point.

It is the resolved or unresolved nature of the cases, not the timing of the compensation, that is the

basis of the rational distinction between these two groups of plaintiffs. See U.S. Reply at 4.

Plaintiffs argue that the SCRA's carveout for September 11, 2001 victims does not

further the CSA's stated aims, echoed in the SCRA, of restoring the United States' relationship

with Sudan by settling and providing compensation for some claims against Sudan, and barring

all other terrorism-related suits against Sudan. See Pls.' Opp'n at 16-17; CSA, preamble & art.

II; SCRA § 1702, 134 Stat. at 3291. Notwithstanding the fact that the stated reasons for a statute

have no constitutional relevance, see Beach Commc'ns,

, Sudan offers various

rational bases for the SCRA's disparate treatment of plaintiffs' claims as compared to the

September 11, 2001 claims, summarized as "[t]he sui generis nature of the 9/11 attacks and

Congress's unique treatment of the victims." Def.' s Reply at 10-11 (describing how the attacks

resulted in nearly 3,000 deaths, how the attacks targeted specific U.S. commercial, government,

and military landmarks, and how Congress passed various statutes and set up a compensation

scheme addressed at benefitting victims); see U.S. Mem. at 13-14.

13 It is for this reason that the Court need not reach Sudan's alternative argument in response: that neither the settlement agreements themselves nor the U.S . government's action in distributing funds pursuant to the agreements are subject to constitutional challenges because the agreements are between private parties and the U.S. government's role is "merely carrying out the terms ofth[o]se private agreements." Def. ' s Reply at 14.

15 Plaintiffs' claims, on the other hand, relate to attacks occurring outside of the United

States. Def.'s Reply at 11; U.S. Mem. at 13. Plaintiffs rspond that it is "nonsensical" and

"[un]justifiable" to distinguish between their claims and the victims of the September 11, 2001

attacks merely because of the location of the attacks. Pl.'s Resp. at 7. To the contrary, it is

plainly rational for the executive and Congress to prioritize claims "concem[ing] a terrorist

attack on U.S. soil" over claims arising elsewhere. Mark,

, at *3.

As a last-ditch effort, plaintiffs insist that the rational bases offered by Sudan are "merely

a pretext for disparate treatment" and that this Court should ignore them. Pis.' Resp. at 5. But as

the United States points out, this Circuit has not held that an allegation of pretext overcomes an

otherwise rational justification for a law, and one court in this District already rejected such an

argument. U.S. Reply at 4 (citing XP Vehicles, Inc. v. Dep 't ofEnergy,

(D.D.C. 2015)).

Here, the executive branch validly exercised its vast power to espouse, settle, and resolve

claims of U.S. citizens against a foreign sovereign as part of a broader effort to normalize

diplomatic relations with that sovereign. See Asociacion de Reclamantes,

.

Furthermore, Congress validly exercised its power to codify the executive's international

agreement into domestic law, strip courts of jurisdiction to hear plaintiffs' claims, and to remove

the associated private cause of action. See Patchak v. Zinke,

(2018) ("[When]

Congress strips federal courts of jurisdiction, it exercises a valid legislative power."); Bank

Markazi v. Peterson,

(2016) ("[I]t remains Congress' prerogative to alter a

foreign state's immunity and to render the alteration dispositive of judicial proceedings in

progress.").

16 Because plaintiffs have not met their burden to prove that the CSA and SCRA do not

distinguish among claimants without a rational basis, the Court does not hold otherwise.

B. Plaintiffs Have Not Demonstrated that the CSA and SCRA Unconstitutionally Impair Their Right to Access Courts

In the alternative, plaintiffs claim that the CSA and SCRA violate the Fifth Amendment's

equal-protection guarantee of access to courts and, because access to courts is a fundamental right,

the CSA and SCRA are therefore subject to strict-scrutiny review. Pls.' Opp'n at 20. Specifically,

they assert that the SCRA's restoration of Sudan's sovereign immunity prevents a court from

adjudicating terrorism-related claims against Sudan but allows the victims of the September 11,

2001 terrorist attacks to pursue their claims, and therefore this classification is not narrowly

tailored to serve a compelling government interest.

"When a statutory classification significantly interferes with the exercise of a fundamental

right, it cannot be upheld unless it is supported by sufficiently important state interests and is

closely tailored to effectuate only those interests." Zablocki v. Redhail,

(1978).

The Supreme Court has recognized that access to courts is a fundamental right protected by the

Fifth Amendment. Christopher v. Harbury,

(2002). However, this fundamental

right applies only to two narrow categories of denial-of-access scenarios.

(collecting

cases). The first category, for "forward-looking" claims, concerns cases where "official action is

presently denying an opportunity to litigate for a class of plaintiffs," such as prisoners' access to

courts or excessive mandatory filing fees preventing indigent parties from litigating their claims.

(internal citations omitted). The second category, for "backward-looking" claims,

concerns cases where official action "may allegedly have caused the loss or inadequate settlement

of a meritorious case, the loss of an opportunity to sue, or the loss of an opportunity to seek some

particular order of relief."

(internal citations omitted).

17 Plaintiffs' claim plainly does not fall into either of the recognized lines of denial-of-access

cases. Plaintiffs are freely able to enter U.S. courts and sue any other defendant under the same

theory they press against Sudan. In fact, plaintiffs have already done so-they are currently

pursuing multiple cases against the Islamic Republic of Iran and the Syrian Arab Republic before

the undersigned for materially supporting Hamas in the same attacks as those at issue here. See

Steinberg v. Islamic 'Republic ofIran, No. 17-cv-1910 (RCL) (D .D .C. ); Henkin v. Islamic Republic

ofIran, No. 18-cv-1273 (RCL) (D.D.C.); Fuld v. Islamic Republic ofIran, No. 20-cv-2444 (RCL)

(D.D.C.). Plaintiffs have already obtained a judgment or a finding of liability in two of the three

cases. See Steinberg, ECF Nos. 19, 33-34; Henkin, ECF No. 31. Nor can plaintiffs point to

negligent or improper official action preventing their ability to sue or causing the loss of a

meritorious case. To the contrary, the official action here was valid. See Clay v. Socialist People's

Libyan Arab Jamahiriya,

(D.D.C. 2009) ("[S]ubject-matter jurisdiction of

the lower federal courts is determined by Congress 'in the exact degrees and character which to

Congress may seem proper for the public good.'") (quoting Amerada Hess,

). And

restoring Sudan's sovereign immunity and eliminating the terrorism-related cause of action does

not prevent plaintiffs from pursuing their claims in another forum. Def.' s Reply at 20.

Plaintiffs rely on Dames & Moore to insist that they have been denied access to a forum to

hear their claims, but this reliance is misplaced. Plaintiffs argue that Congress's establishment of

a claims resolution and compensation disbursement procedure was the primary, or at least a very

significant, reason that the Supreme Court validated the U.S. government's settlement of claims

against Iran in that case. Pis. ' Resp. at 8-9 (citing Dames & Moore,

). But

Dames & Moore does not stand for the proposition that an alternative forum must be provided

when the executive settles citizen claims; the existence of an alternative forum only "buttressed"

18 the Supreme Court's conclusion that the President did not exceed his authority when he, pursuant

to an executive agreement, issued executive orders and regulations that "nullified attachments and

liens on Iranian assets in the United States, directed that these assets be transferred to Iran, and

suspended claims against Iran that may be presented to an International Claims Tribunal." Dames

& Moore,

.

Finally, plaintiffs' comparison of the CSA and SCRA to a 2008 settlement agreement

between the United States and Libya is inapposite. Plaintiffs claim that the CSA and SCRA denied

plaintiffs' claims without compensation, while the other agreement "ensur[ed] that all U.S.

nationals with terrorism claims were included in" the agreement. Pls.' Resp. at 9 (citing Libyan

Claims Resolution Act,

Stat. 2999 (2008)). Assuming without deciding

that plaintiffs' assertion is true-that the executive chose to settle one set of claims one way but

another set of claims differently-it is not for this Court to review. Mark,

, at

*4 ("With the power to settle claims comes the power to settle them imperfectly. [Plaintiffs]

essentially ask for the Court to rule that the executive branch should have negotiated better. This

it will not and cannot do.").

The courthouse doors are plainly not closed to plaintiffs. Therefore, they have not been

denied a fundamental right and are unable to challenge the CSA and SCRA on a strict-scrutiny

basis. 14

* * *

The Court concludes that plaintiffs have not met their burden to demonstrate that the CSA

and SCRA are unconstitutional under the Fifth Amendment.

14 Because the Court agrees that plaintiffs have not established that their case falls within the recognized denial-of- access cases, the Court need not address Sudan' s alternative argument that the CSA and SCRA survive strict scrutiny. Def.' s Reply at 20-21 .

19 C. The Court Lacks Subject-Matter Jurisdiction Over the Case

Having determined that the CSA and SCRA are constitutional, the Court returns to the only

issue remaining for disposition: the existence of subject-matter jurisdiction. The CSA and SCRA

were valid exercises of executive and legislative power. See Patchak,

; Bank

Markazi,

. Together they restored Sudan's immunity in U.S. courts and removed

the FSIA's private cause of action for terrorism-related cases. Because Sudan is now immune from

suit, this Court lacks jurisdiction over plaintiffs' case. See Amerada Hess,

.

IV. CONCLUSION

For the foregoing reasons, this Court lacks subject-matter jurisdiction and must dismiss the

case. A separate Order shall issue.

SIGNED this --2-"i A day of March, 2023 . Royce C. Lamberth United States District Judge

20