haven and vital material support enabling it to carry out the embassy bombings killing two hundred and twenty four people and wounding thousands more in retaliation president clinton sent thirteen cruise missiles into kharto but to impose punitive damages sudan argues somehow would violate principles of fundamental fairness embodied in the land grab the presumption if fairness is the issue here then sudan surely should lose the state department had designated sudan provided for punitive damages for acts of state sponsored terrorism but still through dan continued to harbor al qaeda sudan had ample opportunity to conform its primary conduct to us law it just chose not to and that's not particularly surprising because sudan is a foreign government and foreign governments generally are not guided in their policy making by changes to u s law the central rationale underpinning the land graft presumption simply is not applicable where the legislation is directed at foreign governments but ultimately this court need not decide here whether land graph or altman applies because the st step in the analysis is to determine whether congress has clearly defined the statutes temporal reach and here it is abundantly clear that congress intended punitive damages be available in two carefully defined categories of cases involving past acts of terrorism in that subsection intitled application to pending cases congress set forth two categories of cases prior actions and related actions each of which were unmistakably directed at past acts of terrorism then the amendment say section one thousand and eighty three dollars c one the amendments made by this section shall the amendments made by this section shall apply to any of those claims and sudan concedes it page forty three of its brief that that meant all of the amendments in section one thousand and eighty three apply to a clean arising under proceedings that that land graph described as an unambiguous directive and that the court later in martin versus hate acts described as unambiguously addressing the temporal reach of the statute  involving private a private defendant rather than a sovereign nation are their constitutional limits on congress ability to make punitive damage retroactive yes i think i under this court's decision least in b m w versus gore the due process clause and port some idea of fair notice that would be applicable to persons but so far and states are not persons within the meaning of the due process clause just as states of the union are not so if we just apply the lange graft house what would be wrong with saying if congress wants to make punitive damages retroactive it has to say so expressly there is a magic words requirement that would be inconsistent with how the court looked at it in the land grab language in footnote eight of land graph just roped together compensatory  actually it didn't even reference either specifically it just said section eight shall apply to all proceedings pending on the date of an act meant in section eight provided for compensatory damages and punitive damages there was no magic words requirement applicable in a land graph and the court recognized but not not only in the land graph but later in martin versus hate acts that that was sufficient to unambiguously address the temporal reach of the statute and the same shall apply to all proceedings versus shall apply to any claim and sudan concedes it's important to note that every single word of section one thousand and eighty three dollars applies retroactively except the two and all the other damages anyway so that the only new thing that was added by way of this creation of a cause of action is the punitive damages so i guess that would be a reason to think of the separate and apart from all the rest as retroactive no it's not correct justice kagan because as part of part of the rationale for congress in acting a federal cause of action was that the court in the peterson case involving the one thousand nine hundred and three marine corps barracks bombing it held that person's family members proceeding under pennsylvania law and louisiana law had no had no remedy because the state the state didn't permit for intentional infliction of emotion and all to stress for persons not present at the scene of the bombing so so congress enact it in the federal cause of action it created a remedy that did not otherwise exist for compensatory damages in that limited instance at least i would point to a guess i mean it definitely created maybe i'm not understanding the answer the devil in created a cause of action but in what circumstances is that cause of action different putting aside punitive damages than the state law claims that would have been brought a family member who was in pencil who lived in pennsylvania for instance had no claim for compensatory damages because and so by dint of pennsylvania state law that pennsylvania state tort law did not allow that person to recover same for louisiana and this was you know judge lambert in the peterson case expressed some regret about this but can't so that was part of the rationale for the federal cause of action there to at least two other points that i think demonstrate congress's clear intent that punitive damages apply one of those cases was a case called a creep versus iraq that this court addressed in in iraq vs beaty it was a nine hundred and fifty nine million dollars judgment that included three hundred million dollars of punitive damages and then president bush's veto statement which you can find it the blue prefix seventeen a complains that this that the legislation that congress who would enact that hadn't acted would revive a nine hundred and fifty nine million dollars judgment against iraq for the misdeeds of saddam hussein that is an unmistakable reference to the decision and what congress did in response was not change anything with respect to the retroactivity of the cause of action or retroactivity generally or to punitive damages specifically it instead create gave the president waiver authority solely with respect to iraq it demonstrates that the president knew that this statute provided for punitive damages to apply retroactively and congress's reaction to that was to say yes we want we want peanut if damages here to apply retroactively an additional point i would make plato herself there is just no reason to think that congress in two thousand and eight wanted to narrow the relief that had been available under the  instead if you look at the history of how congress has dealt with the terrorism exception going back to one thousand nine hundred and ninety six it is consistently an effort to expand not always perfectly effective effort but it's an effort to expand the relief of vailable to victims of terrorism there's no reason to think that after in acting the plato amendment and providing punitive damn look backwards that now congress would provide a different punitive damages remedy that looked only forward it also of course would ignore the acts of terrorism that were most in congress is mind at the time which included of course this bombing here one additional point i could make that further demonstrates that this would apply retroactively is the operation of the related actions provision and as the d c circuit recognized in an opinion by then judge kavanaugh the that related actions provision of laos a person who already has a judgment for compensatory damages to file a new action under the new federal cause of action to seek  damages the only reason congress would allow somebody to bring a nd cause of action arising out of the same act of terrorism would be to allow that person to provide to get the punitive damages that congress once again was attempting to provide so you have the text of the statute the history of the statute and the context in which it arose all here together work work together to persuasively demonstrate that congress wanted punitive damages to apply to past acts of terrorism sudan again concedes that the federal cause of action for money refers to the emotional suffering of an aggrieved family member who is not themselves directly that the injury that for instance a spouse suffers from have from viewing their their that that the federal remedy that the punitive damages applies retroactively under the federal cause of action then the state caused the then it applies to the d c circuits decision with respect to state the state law cause of action really collapses the d c circuit its primary rationale was that it would be inconsistent to allow state law punitive damages and not if you had already decided that federal law st the d c circuit recognized that without the land graft presumption then the amendment would have lifted the restriction as to state law punitive damages so if you agree with us and the government that  once you acknowledge and concede that these state law claims are brought under section one thousand six hundred and five capital ed and i should be emphasized that petitioners claims here have only damages of a state law claim there is no there is no free floating preemption of state peanut of damages that could be invoked so i think that this if you agree with us about the federal law cause of action then the state  cause of action goes with it if there are no further questions and thank you counsel that and i think it's very important on page two hundred and seventy two of land graph where the court explains exactly what it is doing it states that requiring clear intent assures that congress itself has affirmatively considered the potential unfairness of retroactive application and determines that it is an acceptable price to pay for the countervailing benefits i think that that is exactly what happened here for all of the reasons that mr miguel has already explained we have a statute where congress in the st instance has under  be brought under sixty five big a it explains that the amendments to section one thousand six hundred and five big will apply in any action and it provides for prior actions that are related to previously filed actions or actions that are doesn't want to impose liability retroactively on foreign state would there be any basis for that so i think it is that i can and congressional intent i don't know that it's as closely tied to or limited to constitutional concern so as simply a concern that when generally when congress acts in a substantive manner we think that it does so prospect of lee and i think if you thought that it simply had no application to foreign sovereigns i think altman would have been written very differently i think page six hundred and ninety five and fifteen of all men make very clear that the court while considering land graph not particularly appropriate in the context of foreign sovereign immunity and related issues that were then part of the very clearly damages were not available for all victims under prior law i think it's also important to note that i don't read land graph as asking necessarily whether any other source of law would have provided for that seems out of damages i read it as asking whether this federal cause of action in that case and here would provide for that type of liability and i think that's important because you can imagine in a case particularly in a case involving a foreign sovereign where you would then have to do that analysis across many many different c likes alecia necessarily would have been available under state law previously and so no one has sort of done that analysis and i don't think that's necessarily the right way to think about the question here  i think that the back and forth between congress and the president that mr miguel mentioned earlier is extremely important here for two reasons one of course is that as mr miguel noted it's very very similar the language here is very similar to the prior look at in this clear statement inquiry trying to process everything you just said sorry break it down in a more direct way for your colleagues that we don't have to get apply retroactively in this case do you agree with that proposition i do your honor with respect to the federal rights about now we go back to what justice alito asked you and i want to clarify what you think the answer is to this assuming it was a believe that it's only to private rights you believe it's to any retroactivity portions well no i mean of course we would we would carve out altman itself which was a retroactivity question but on the immunity but on honor we think that that's why all men in fact applies to the state law claims because all congress did with respect to the state claims was a just the extent to which united states courts are open to plaintiffs with preexisting claims that's the language a particular country was an incorrigible sponsor of terrorism and i wanted to punish that country would there be any constitutional barrier to congress simply explore reading all of that country within the reach of the united states your honor the united states hasn't taken a position on the scope of a foreign state's constitutional rights in this case to dan hasn't raised that issue to be and has asked like any other litigant for application that have been designated as such based on a rational or several congressional statutes that permit that does ignition and then i mean executive determination about their sponsorship of terrorism there really aren't any constitutional issues in this case as you think way or at least that it does apply to this very narrow circumstance of the creation of a new cause of action against a foreign state is a pretty clear sort of lesson from altman itself and again altman having been very clear to carve out the situation in which a new cause of action is created obviously there is thinking about foreign sovereigns more generally news the idea that if if a foreign state is going to sponsor terrorism it might think well you know if we're going to be liable for compensatory damages it's worth our while but if we're going to get hit with a community of damages well that's cost stop us that's the thinking of the u s government i don't think that that's the thinking of the u s government justice alito i think fairness expectation and expectation simply about how we think congress thinks about these issues we generally think that when congress legislates it does so perspectively and so if it's going to do so in a way that really affects substantive liabilities it should be clear and we think again here it was quite clear and we think that that's enough to resolve this case on as i said on the federal cause of action and then on the state cause of action we think that clearly falls under men and for the reasons provided we think satisfies that mor and twenty hindsight aspect to them before i'm just responding to the argument that sudan is the devil incarnate here i think instead the record shows that sudan at most was negligent in controlling people within its borders and that it's not and i want to make it clear that sudan did not and is not accused of being a terrorist but instead providing an environment that allowed terrorism to foster again long before bin laden was a notorious terrorist now before i turn to the retroactivity issues that are before the court justice ginsburg  one comment about the state law claims that justice alito raised the state law claims are all brought by foreign national family members so those that citizens of kenya and tanzania they're all fo claims of emotional distress felt by those point us that it is not representative claims of any kind now those claimants acknowledge they concede that they are not eligible for the cause of action under one thousand six hundred and five capital a c because they don't have the sufficient us nexus they're not u s nationals they're not u s employees they're not u s contractors and they're not representatives of those so that they are but they're to see this were but these are not claims on behalf of the deceit and these are parallel almost identical u s nexus requirements the bottom line is there's no subject matter jurisdiction as to claims by foreign national family members seeking redress for their own emotional injuries so if the court were to expand the question presented as my friends suggest the conclusion should be that those state law claims cannot withstand scrutiny under subject matter jurisdiction now existed at the time and that was pre two thousand and eight footnote fifteen of altman and the text accompanying that specifically say that we're not dealing here in altman with a cause of action the creation of a cause or the modification of a cross of action because if we were we'd have to be concerned with land graph and land graph progeny including the hughes case mr kearney assuming lance craft controls why isn't it met here i mean you've conceded that every other part of this statute applies so how is it that you can exempt punitive damages from that retroactive coverage there's a lot to that question and i have an answer for all of it st with respect to your earlier point yeah we do concede that the compensatory damages  and other certain other aspects of relief including salacious those do apply retroactively but not because there's a clear statement by congress that those should apply retroactively it's because there was no change no substantial change foreign states were already subject to compensatory damages insolation well mr mcgill said sometimes there was and and it was it would be a matter of state law you would have to go state by state and see what a particular state law had allowed and what it didn't and that couldn't be what congress had in mind as i think mr mcgillis and ms ross's argument right so mr mcgill identified two states louisiana and pennsylvania that don't provide for declines in emotional distress claims for non present family members ok so those are two outlier states i'm not aware that we've got any plaintiffs in this case from pennsylvania or louisiana and furthermore that's secondary we our position is the family members don't have a claim at all before or after the two thousand and eight amendment  just to try and pursue this question a little bit further i thought you could conceded as well that six you know five days cause of action applies retroactively the federal cause of yes yes because that's a new cause of action degree well it's a no rush but i think this is the heart of the matter for me and it sounds like it may be for some of my colleagues if we agree that the cause of action is a new one and applies retroactively and if we agree that compensatory damages apply within land graph and within altman k bradley was a case where there were there was an entitlement to attorney's fees under common law and then a statute was passed authorizing attorneys fees and the question was well should that new statute apply retroactively or not no clear statement by congress but different regimes and the court concluded this court concluded that we're going to apply the statute retroactively because there's not really a retroactive effect for the passage of that statute because attorney fees were already available under common law so that let's say i don't buy that argument in the mere fact that there were state causes of action doesn't move me very much and i'm still here though on the record in which everyone agrees that the federal cause of action does apply retroactively then what do i do well i might change my concession as to the federal cause of action if  any of the stuff in two thousand and eight so my friends point to one thousand and eighty three c and its provisions on pending cases well this is an important point to make none of the cases we're talking about here today case which we referred to on page fourteen of our brief was filed in two thousand and twelve so none of the cases at issue in this case were pending cases so i said what are you really i thought it was a given has said so we apply that but if congress hasn't said so then the next step in the land graph analysis is well we have to take a look and see whether this new provision has a retro active operation does it upset settled expectations doesn't impose new damages doesn't impose a disability to use just the stories terminology and in the in the with respect to compensatory damages and with respect to the cause of action with all due respect to justice course which is disagreement on this point those those things existed before the two thousand made an act meant well we often say there's a state tort cause of action that doesn't necessarily mean there's a federal graph and under bradley what we look for is the practical consequences is there fundamental unfairness in implying in applying retroactively the new provision and and here there's if there's not as to compensatory damages and the cause of action i don't know where your argument based on these state claims is going suppose that there was no federal cause of action for something but there was a state cause of action for exactly the same thing and so now congress passes a statute that creates the federal cause of action which is exactly parallel to the preexisting state cause of action but says nothing whatsoever about retroactivity would you say that there is no retroactive effect in the case of the federal statute because you if you were already liable under the state law that's exactly what i'm saying yes there's no i think you're arguing in exactly the opposite direction so you would say there's no retroactive effect under the state under the feds we would presume that there would be no retroactive application that there would be no problem with retroactive application of the federal claim because you are already liable under the state law right that's the talking about a wreck or active effect of the two words in this statute which call punitive damages which didn't face the plaintiffs the defendant before all right  reference to the retroactivity no all there is is the word as if right and it says as if the action had a regionally been filed under sixteen over five a c ok so if it had and therefore basically transition its action from the prior version which is fifteen our sixty six dollars you know five a seven to the new federal cause of action so it's a transition it says nothing about punitive damage maintaining what so again might have weighed down their aid to just to prevent them in this court's cases are pretty clear saying that even as to conduct that was illegal or immoral that the bad man under to use just as holmes of terminology is still entitle to notice of what the law is may be a country in the position of a sudan knowing about the extra liability for maybe they would have supervised their residence there forty million dollars residents a little more closely but the law does presume that particularly in a case of punitive damages that it's only fair to apply them if the party was on notice of its exposure to that at the time of the relevant conduct is like a due process argument i guess of corporations are persons maybe foreign countries are too i don't know the answer to that but this that is in front of us page thirteen of our brief every one of these actions was filed after the american it in two thousand and eight none were pending at the time of the an act meant this section one thousand and eighty three dollars c that we're all talking about is irrelevant to these cases cases are big yes and there's a whole thing you can look throughout all of the two thousand and eight in acme you will not see a whisper of a suggestion about the temporal application of claims under  five capital a they don't exist that's why my friends are resorting to the pending action transition provisions which are relevant to what were they wouldn't that be a little weird in other words you brought to the new one thousand six hundred and five capital a before what's called the pleco amendment is this i don't know it's all after flatow are what you're saying and it's under big and this letter thing application pending cases only small right so if referring explicitly to punitive damages would be sufficient i think that's right i think that's what explicit means and that's what express means in the language decision words like express and explicit are all over land grabs now i do acknowledge that that in that there was a cross reference specifically to the damages provision and it said that provision shall apply for cases on or before such and such a date with with all due respect to mr my friend mr mcgill there is no close analogy between that provision in footnote eight of land graph and what we're dealing with here here we have literally nothing talking about the retroactive effect of sixteen or five capital way nothing was different if i could understand your position are you saying that punitive damages are the only thing that was do or are you saying or you would concede in that there are some states where other sorts of damages and maybe some other liability rules were  new but that those get kind of swept into the mix and there is retroactive application of those states and then now there is under the new federal cause of action i think a foreign sovereign defendant has an argument that that is new that is a new disability that is a new punishment and it shouldn't be applied retroactively without a clear statement by congress i think that's underlying gra doesn't apply we look at the section that does apply we see that it doesn't say anything about rhetoric else i'll say it again is that is that it yes all four of these cases that we're dealing with in this case were filed after the enact meant of the statute and none of them were pending no argument i thought are you saying that the federal cause of action does not apply retroactively at all the new federal cause of action all you can sue for are things that happen after the in the act of that provision now i'm saying that the new federal cause of action applies retroactive y because under the land graph nd step it has no record no practical retroactive operation and if we disagree with that premise you lose right because if we think that a federal cause of action adds in any way material new potential liability different statutes of limitations for example different elements of the cause of action whatever it we disagree with you we think that a federal cause of action is separate and distinct from the state cause of action is no one because if if the federal cause of action is really a new disability is really a new prejudice then it requires an expressed statement by congress stage at that stage right if you change the premises of my concession yes my concession changes but but but my concession is premised on the very strong reality that the federal cause of action didn't add much to preexisting state caus just clarify one step further please let's assume that this had been filed earlier than the amendment that it was or that it goes back to it was timely filed before which you command of retroactivity for punitive damages and i don't find that intent eighty three see where you have a stronger argument i mean you'd say look if that we had filed this three years later the punitive damages part wouldn't apply because this  and not to the newer cases and that itself creates an ambiguity saying as if it isn't enough to say i think pretty i mean it do you have to say something like that and boy we're in outer space i think by the graph tells us the  notion of retroactive imposition of unity of damage is such a draconian step it is against god basic principles going back centuries about fairness so before we attribute that intention to congress we're going to ask congress to say it pretty damn clearly so as your current and in your state of the world and if i understand it it's not just punitive action punitive damages now it's really any new liability any new damages so you're conceiving of a state of the world where  defendant foreign state gets to walk in and say well there's this new thing and that wouldn't have been true before there's this new thing and that would had to be true before and and that's what it will all come down to right and boy that seems  awfully complicated and probably not what congress had in mind that somebody would say under pennsylvania law it works like this under wisconsin model works like this and then different people would be treated in different ways depending on which state they were in  because the people in pennsylvania look we're not we're taking a more practical approach to this that in general the federal cause of action as nothing new so has no retroactive operation underlying graft therefore it applies retroactive this is what langrish says so we're not asking for any change of the law we're asking for equal handed treatment of sudan on the same footing that other litigants would enjoy the presumptions and other other statements in land graph but we're not ask anything new or radical here this case presents a straightforward application of the land graph steps is there is there a clear statement by congress if not then we look and see whether there's a retroactive operation if there is a retroactive operation such as we punitive damages then the presumption kicks in and the and the and the new provision cannot apply retroactively that's it we're not asking for anything radical there are other arguments we make in our briefs including on subject matter jurisdiction we invite the court to consider those including the one that that argues that the h decision of a couple of years ago has not been applied correctly here because the court here found that applied a wrong standard for jurisdictional causation we also take issue with the idea  limitation that of limitation question which is an affirmative defense not a single well that's the issue of justice ginsburg the issue is whether the limitations defense is jurisdictional and therefore cannot be waived by default in foreign sovereign or whether it is an affirmative defense that can be waived and our position is given the placement and text of one thousand six hundred and five dollars capital a b that it should be interpreted to be jurisdictional so appeals should've addressed that on the merits mister mcgill says that if your interpretation of extra judicial killings correct than the terrorism exception doesn't apply to terrorism yeah that that's that's semantics well no well there's no question that the four predicate acts each constitute types of terrorism ok so so it's still the terrorism exception my question for my question to mr macgill i guess is how come congress rejected the the act of terrorism as it was proposed in the early versions of the of the terrorism exception which terrorists would be covered under your under your understanding only those who are under international law that can only be committed by state actors the other ones aircraft sabotage and hostage taking the under those conventions anyone you don't to be a state actor you can be guilty of the violation under international law so it depends on the predicate act and and the eighty eight dollars right we've got the the anti terrorist act which does criminalize and provides civil remedies for acts of international terrorism that accepts foreign states so when one considers the broad terrorism statutory scheme one sees that acts of terrorism generally are prohibited and criminalize and provide for civil remedies but not against a foreign state but under the four predicate acts that are embedded in the terrorism exception those are acts that congress carefully considered with the advice of the state department and concluded that those acts are all condemned universally thank you mr chief justice justice pryor let's start with what this case is if you turn to twenty eight a of the government's brief you'll see the provision for related actions that's what these cases are all related other action turned the page arising out of the same actor incident may be brought under one thousand six hundred and five dollars a that is us we because we are related to owens we arise out of the same actor incident as prior actions or cases that already had punitive damages judgments that congress said could be revived any judgment in the action shall be given a fact as if it had been filed under sixteen thousand and fifty eight c and it was for that reason that the president st vetoed it and it was in response to the president's veto that congress gives waiver authority with respect to iraq mr i'm the kill the one argument that they make that i can we are fully reaching is  subject matter jurisdiction whether relatives of victims or their independent state tort actions fall within any of these statutes because they all require u and consistently consistently applied by lower courts for some twelve years and congress so i just waited against that background ratify that and i'd cite the inclusive communities project for that thank you counsel the cases submitted