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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17

- SP

- 837
R EPUBLIC OF S UDAN , M INISTRY OF E XTERNAL A FFAIRS , et al ., A PPELLANTS ,
V

. J AMES O WENS , et al ., A PPELLEES

. On Certified Question F rom the United States Court of Appeals For the District of Columbia Cir cuit

(14

- 5105) (Argued February 14, 2018 Decided September 20, 2018 ) Christopher M. Curran , with whom Nicole Erb , Clair e A. DeLelle , and Celia A. McLaughlin were on the brief , for appellant s
. Matthew D. McGill , with whom Stuart H. Newberger , Clifton S. Elgarten , Aryeh S. Portnoy , Thomas Fortune Fay , Lochlan F. Shelfer , Steven R. Perles , Edward B. Macallister , Jane Carol Norman , John Vail , Michael J. Miller , and David J. Dickens were on the brief, for appellee s
. Karl A

. Racine , At torney General for the District of Columbia, Todd S. Kim , Solicitor General at the time the brief was filed , Loren L. AliKhan , Deputy Solicitor General at the time the brief was filed , and Lucy E. Pittman , Assistant Attorney General, were on the brief for the District of Columbia as amicus curiae in support of appellees.
Ellen M. Bublick and George Anhang were on the brief for Law Professors Ellen M. Bublick and Paul T. Hayden as amic i curiae in support of appellees. 09 / 2 0 /20182

Before F ISHER and T HOMPSON , Associate Judg es , and F ARRELL , Senior Judge

. F ISHER , Associate Judge : Almost simultaneously o n August 7, 1998, al Qaeda terrorists detonated powerful truck bombs outside the United States embassies in Dar es Salaam, Tanzania , and Na irobi, Kenya, killing over two
hundred people and injuring more than a thousand others. Owens v. Republic of
Sudan , 864 F.3d 751, 762 (D.C. Cir. 2017) . Three years after the attacks, groups of plaintiffs began filing suit in the United States District Co urt for the District of Columbia, seeking to hold Sudan account able for its role in the bombings. Id. Eventually, the case reached the United States Court of Appeals for the District of
Columbia Circuit and, pursuant to D.C. Code § 11

- 723 (2012 Repl.), it certified the following question of District of Columbia law to this court:

Must a claimant alleging emotional distress arising from a terrorist attack that killed or injured a family member have been present at the scene of the attack in order to s tate a claim for intentional infliction of emotional distress?

Id. at 812

. For the reasons that follow, w e answer this question “No.”3
I. Background

The D.C. Circuit and the district c ourt have ful ly recounted the relevant facts
and procedural history , s ee id. at 765

– 69, 781

– 84; Owens v. Republic of Sudan , 826 F. Supp. 2d 128, 133

– 35, 1 39

– 46 (D.D.C. 2011), aff ’ d in part, vacated in part , 864 F.3d 751 (D.C. Cir. 2017) , so w e will discuss them only briefly here.

Much of t he litigation in federal court ce ntered on the Foreign Sovereign Immunity Act (FSIA), which generally bars suits against foreign sovereigns in
federal and state courts

. 28 U.S.C. § 1604 (2012) . The FSIA contains exceptions, including the “ [ t ] errorism exception,” 28 U.S.C. § 1605A , which strips foreign
states of imm unity , and grants courts jurisdiction , in cases where certain plaintiff s

sue state sponsors of terrorism for committing , or “provi[d ing] material support”
for , enumerated terrorist activities

. 1 § 1605A(a)(1), (2). Section 160 5A(c)
establishes a private right of action for the same conduct that gives rise to jurisdiction; h owever, only a sub category of those plaintiffs who obtain jurisdiction

1 In general, the terrorism exception to the jurisdictional immunity of a foreign state applies where plaintiffs seek “ money damage s . . . against a foreign state for personal injury or death . . . 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 . . . engaged in by an official, employee, or agent of [a] foreign state . . . designated as a state sponsor of terrorism. ” 28 U.S.C. § 1605A(a)(1)

– (2)(A)(i)(I)

.4

under the terrorism exception c an also invoke the statutory cause of action. 864
F.3d at 809

. The remainder must assert claims based “upon alternative sources of substantive law,” such as state tort law

. Id. at 808 (analyzing §§ 1605A and 1606).

Appellees are a subset of the plaintiffs who sued Sudan for its role in the embassy bombin gs. All of them are non
- U.S. nationals related to someone who died or suffered injuries in one of the attacks

. They allege that the injuries to their family members caused them severe emotional distress, and seek to recover damages for that injury to the mselves

.

T he district court determined , 826 F. Supp. 2d at 148, and the D.C. Circuit later affirmed, 864 F.3d at 769, that it had jurisdiction over appellees’ claims under § 1605A. However, the district court also concluded that appellees could not rel y

on § 1605A(c)’s cause of action and would instead need to invoke an independent legal basis for recovery

. 826 F. Supp. 2d at 153. After conducting a choice of law analysis, the court determined that D istrict of C olumbia law governed the “ claims
that [ d id] not aris e under the federal cause of action at § 1605A(c) , ” id. at 157, and, applying our tort law, held Sudan liable to appellees for intentional infliction of emotional distress (“ IIED ”)

. S ee, e.g ., Onsongo v. Republic of Sudan , 60 F. Supp.5

3d 144, 149 (D.D.C. 2014), aff ’ d in part, vacated in part sub nom

. Owens v. Republic of Sudan , 864 F.3d 751 (D.C. Cir. 2017).

The orders finding Sudan liab le and awarding damages to appellees took the
form of default judgments . 864 F.3d at 767. Sudan did not pa rtici pate in much of the litigation and even decli ned to engage in the evidentiary he aring s held on issues related to jurisdiction, liability, and damages

. Id. However, after the entry of default judgments, Suda n adopted a more active strategy . It filed motion s for relief
from the judgment s under F ed. R. Civ. P. 60(b) , and a ppealed th e denial of that
motion , as well as the underlying default judgments , to the D.C. Circuit. Id. at
768.

I n both proceedings Sudan argued that appellees could recover for IIED only if they were present when their family members were killed or injured , id. at 809

– 10 ; Owens v. Republic of Sudan , 174 F. Supp. 3d 242, 286

– 87 (D.D.C. 2016) , a requirement the district court had not imposed, see, e.g. , Onsongo , 60 F. Supp. 3d
at 1 49. On appeal , the D.C. Circuit reviewed our case law and was “genuinely uncertain” whether this jurisdiction “ would apply the presence requirement in the Second Restatement of Torts to preclude recovery for IIED by family members6

absent from the scene of a terrorist bombing.” 864 F.3d at 812. Consequently, it
certified to us the question of law quoted above. Id.

II. The General Rule

The certified question raises two issues of first impression. We must, as a general matter, identify the elements of a n IIED claim arising from injury to a member of the plaintiff’s immediate family. Depending on the answer to that question, we may then need to determine whether to permit more expansive liability when injury to the family member was caused by a terrorist attack.

Our analysis starts with § 46 of the Restatement (Second) of Torts (A m
. L aw
I nst

. 1965) (“Second Restatement” or “Restatement Second”), which defines the elements of IIED liability as follows:

(1) One who by extreme and outrageous conduct in tentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (2) Where such conduct is directed at a third person, the act or is subject to liability if he intentionally or recklessly causes severe emotional distress7 (a) to a member of such person’ s immediate family who is present at the time, whether or not such d istress results in bodily harm, or (b) to any other person wh o is present at the time , if such distress results in bodily harm

.

Section 46 (1) governs IIED claims where the defendant “intentionally or recklessly causes severe emotional distress” to the plaintiff. In such cases the
defendant typically has targete d the plaintiff. See, e.g. , Howard Univ. v. Best , 484 A.2d 958, 985

– 86 (D.C. 1984) (holding that plaintiff “made out a prima facie case of intentional infliction of emotional distress . . . [by] demonstrat[ing] repeated
‘sexual harassme nt’ by . . . her su pervisor”). By contrast, § 46 (2)(a) applies when defendants “direct” their extreme and outrageous acts at a third person and “intentionally or recklessly cause[] severe emotional distress” to a member of that person’s “immediate family who is present at t he time.” 2 Thi s court has addressed many § 46 (1)

- type claims and, in doing so, has expressly adopted the Second Restatement’s approach. See, e.g. , Sere v. Grp

. Hospitalization, Inc. , 443 A.2d 33, 37 (D.C. 1982) (quoting elements of IIED from Second Rest a tement § 46 (1)); Waldon v. Covington , 415 A.2d 1070, 1076 & n.21 (D.C. 1980) (quoting from § 46

2 It appears that we have not applied § 46 (2)(b) in the District of Columbia, and there is no need to discuss that section here.8

of Second Restatement). However, non e of our published opinions has analyzed an IIED claim where § 46 (2)(a) might apply. As a result, before we can discuss

ca ses involving terrorist attacks, we must determine whether § 46 (2)(a) , and with its requirement that the plaintiff be “present at the time , ” generally govern s IIED claims where the plaintiff’s distress was caused by harm to a member of his or her
immediate family.

We conclude that it does . As noted, this court has embraced the Restatement
Second ’s approach to IIED liability. Subsection (2)(a) is an integral part of that regime and, in formally adopting that subsection today, we make explicit what our

e arlier cases implied. This holding is consistent with our customary cautio n when facing “the problem of potentially infinite liability that has been of central judicial
concern in emotional distress cases.” Hedgepeth v. Whitman Walker Clinic , 22
A.3d 789 , 801

– 02 (D.C. 2011) (en banc). For decades, this court permitted relief
for negligent infliction of emotional distress only “if the distress result[ed] from a physical impact and [was] accompanied by physical injury.” Id. at 796

. While we ultimately ab andoned that rule, we replaced it with new ones deliberately crafted to9

contain “self

- limiting principle[s],” id. at 812, and to avoid “virtually infinite liability,” Williams v. Baker , 572 A.2d 1062, 1069 (D.C. 1990) (en banc). 3

Like th e rules cabining re lief for negligent infliction o f emotional distress, § 46 (2)(a ) defines this related tort to guard against potentially unbounded liability. Indeed, the reporters of the Second Restatement explained that § 46 (2)(a)’s “presence” requirement exists, in pa rt, to serve that very goal. § 46 cmt. l

. Limiting recovery to those who are present and perceive the harm as it happens prevents excessive liability while affording relief to plaintiffs who suffer a uniquely traumatic experience. Accordingly, we hold t hat, as a general matter, to recover for IIED, a plaintiff whose emotional distress arises from harm suffered by

a member of his or her immediate family must be “present” when the harm occurs and otherwise satisfy the rule esta blished in Restatement Second § 46 (2)(a). 4

3 For example, i n Williams , we held that “[w]here the plaintiff was within the zone of physical danger and as a result of defendant’s negligence feared for his or her own safety, . . . it is reasonable to permit the plaintiff to recover as an elem ent of damages mental distress caused by fear for the safety of a member of the plaintiff’s immediate family who was endangered by the negligent act.” 572 A.2d at 1069. This “zone of danger” test is essentially a requirement that the plaintiff be present

.

4 W e adhere to the Second Restatement even though the American Law Institute has published a new version with a slightly modified approach to IIED liability. See Restate ment (Third) of Torts: Liab. for Phys ical & Emotional Harm § 46 (2012). This cou rt has proceeded cautiously in adopting the Third ( continued ...)10

III. The FSIA Terrorism Exception to the Presence Requirement

A caveat to § 46 of the Second Restatement leaves open the possibility of “other circumstances” in which a defendant could face liability for IIED , including “situations in which [t he plaintiff’s] presence at the time may not be required.” § 46 Caveat & cmt. l

. 5 The D.C. Circuit has asked us to determine whether the caveat applies to the scenario presented here

— an IIED case where the defendant is a state sponsor of terrorism denied sovereign immunity by the FSIA. See 864 F.3d
at 81 2

. Having considered the reasons for the requirement in more typical cases ,

w e conclude that presence at the scene is not required in this special context

. A ccordingly, we answer the certified question in the negative.

(... continued ) Restatement. See Hedgepeth , 22 A.3d at 800 n.15 (declining, even while sitting en banc, to endorse more than select comments from the (then

- draft) Restatement Third section on negligent infliction of emoti onal distress ). Moreover , a s a panel of the court, we cannot overrule prior decis ions that have relied upon § 46 (1) of the Second Restatement. See M.A.P. v. Ryan , 285 A.2d 310, 312 (D.C. 1971)

. A dopt ing the Rest atement Third approach for § 46 (2)

- type cl aims would create a confusing and unseemly situation where some IIED claims were governed by the Second Restatement and others by the Third.

5 “The Institute expresses no opinion as to whether there may not be other circumstances under which the actor m ay be subject to liability for the intentional or reckless infliction of emotional distress.” Restatement (Second) of Torts § 46 C aveat (Am. Law Inst. 1965 )11

The presence requirement serves many purposes. It shields defendants from unwarranted liability , tries to ensur e that compensation is awarded only to victims with genuine claims of severe emotional distress , and provides a judicially

m anageable standard that protects courts from a flood of IIED claims. See
Restatement Second § 46 cmt. l

. In FSIA terrorism cases , however, the presence requirement is not needed to achieve these goals: t he very facts that justify stripping foreign sover eigns of their immunity all a y the concerns that the presence requirement was designed to address . As a result, adhering to the rule in this context would serve only to create a high risk that compelling claims will go uncompensated. By establishing the c aveat , the Restatement Second sought to prevent such unfair outcomes ; by invoking it here, we do just that

.

We begin our analysis by considering the role of the presence requirement in ensuring fairness to defendant s
. As noted previously, § 46(2)(a) go verns cases in which the plaintiffs suffer severe emotional distress from conduct directed at a
member of their immediate family. T he Restatement Second appreciated that, in such cases, defendants might not anticipate the degree to which their conduct

wou ld affect family members absent fro m the scene

— individuals whom such
defendants did not target and did not see when they engaged in their extreme and12

outrageous conduct

. See § 46 cmt. l

. Requiring that the plaintiff have been “present at the time” mitiga ted this concern. “ [W] here, for example, a husband is murdered in the presence of his wife, the actor may know that it is substantially certain, or at least highly probable, that it will cause severe emotional distress to the plaintiff.” Id. Although § 46(2)(a) separately requires that the defendant “intentionally or recklessly cause” the plaintiff’s anguish, the wife’s presence at the time gives added assurance that the defendant knew he would cause her severe
emotional distress

. 6

Defendants in FSIA terrorism cases do not need this additional protection.
Acts of t errorism are , by their very nature , designed “ ‘ to create maximum emotional impact, ’ particularly on third parties.” Estate of Heiser v. Islamic Republic of Iran , 659 F. Supp. 2d 20, 27 (D.D .C. 2009) (quoting Eisenfeld v. Islamic Republic of Iran , 172 F. Supp. 2d 1, 7 (D.D.C. 2000)) ; see 18 U.S.C. § 2331 (1) (definition of “international terrorism” includes violent acts that “appear

6 Sudan contends that it did not recklessly disregard the risk that its conduct would harm appel lees , much less intend that result. We reiterate that Sudan defaulted on the issue of liability, 864 F.3d at 767, and belatedly challenged the district court’s conclusions regarding that issue under the demanding standard of Fed. R. Civ. P. 60(b). Perhap s more importantly , w hether Sudan acted with the requisite mental state is beyond the scope of the q uestion certified to us. S ee id. at 812.13

to be intended . . . to intimidate or coerce a civilian popu lation

. . . [or] to influence the policy of a government by intimidation or coercion”); D.C. Code § 22

- 3152 (1) (2012 Repl.) (“act of terrorism” similarly defined). Therefore, w hen foreign states provide material support for terrorist attacks, it should come as no surprise that the

acts they facilitate d have caused severe emotional distress to persons who were not present at the time.

Another purpose of the presence requirement is to increase the likelihood that only plaintiffs with “genuine” complaints of severe distress can recover
. See Restatement Second § 46 cmt. l

. Yet , the risk of trivial or feigned claims is exceedingly low when the anguish derives from a terrorist attack that killed or injured a member of the plaintiff’s immediate family . Indi viduals naturally experience severe distress in response to such horrific events. Consequently, in such circumstances, courts need not rigidly enforce the presence requirement to ward off disingenuous claims

.

Lastly, t he presence requirement serves the goal of avoiding “virtually unlimited” liability and recognizes “the practical necessity of drawing the line
somewhere.” Id. Sudan emphasizes this point, arguing that invoking the caveat in this case would untether the tort from judicially manageable sta ndards and14

unwisely discard our carefully considered limits on liability for causing emotional
distress

. Indeed, Sudan suggests that any resort to the caveat is suspect.

We agree that the caveat should be invoked only rarely, but Sudan’s argument seems to treat it as a nullity. Relaxing the presence requirement in cases where § 1605A applies should not open the floodgates to litigation. Indeed, the FSIA terrorism exception we recognize here is quite limited in scope

. The provisions of 28 U.S.C. § 160 5A are restricted to (1) plaintiffs who meet precise qualifications, § 1605A(a)(2)(A)(ii); (2) a limited range of conduct (in this instance “extrajudicial killing”), § 1605A(a)(1); and (3 ) defendants that have been classified as state sponsors of terrorism , § 1605A (a)(2)(A)(i). Our holding excuses the presence requirement only when plaintiffs demonstrate that these predicates are

met. And even when they can make such a showing, plaintiffs may obtain relief only upon satisfying the remaining elements of § 46(2)(a)

— that is, they must establish that the defendant engaged in “extreme and outrageous conduct” and “intentionally or recklessly” caused the plaintiffs ’ “severe e motional distress” by
harm ing a member of their “immediate family.” These are j udicially manageable
standards that should be sufficient to prevent a precipitous slide down the proverbial slippery slope

.15

This analysis demonstrates that when § 1605A applies, the need for th e presence requirement does not. In such circumstances, rigid adheren ce to the rule
would do little more than shield culpable defendants from liability and deny relief

to deserving plaintiffs

. The caveat exists precisely to avoid such unfair results , which is why we choose to invoke it

.

Furthermore , precluding liability in contexts like the one at bar is not simply unjust but also unwise, as doing so would forego an opportunity to advance a policy goal of national importance. Congress enacted § 1605A “ to deter [sovereign nations] from engaging, either directly or indire ctly, in terrorist acts .”
864 F.3d at 776. It viewed the goal of deterrence as sufficiently important

— and the means of civil liability sufficiently effective

— that it curtailed sovereign immunity to promote it. I nvoking the caveat here w ill increase the IIED liability of foreign st ates if they sponsor terrorism, furthering the objective of deterrence that Congress has emphasized . While § 1605A does not dictate our response to the certified question and we are not obligated to promote the purposes of t hat statute,
it is sound jurisprudence to consider how our decisions will affect policies of national significance

. Here, Congress deem s civil litigation a useful tool in the16

nation’s efforts to deter foreign states from sponsoring terrorism

. Our holding

to day is consistent with that legislative judgment. 7

At the same time, we emphasize that our decision i s not based simply on the outrag eousness of the actions at issue

. Sudan correctly reminds us that conduct

must always be “extreme and outrageous” even t o make out a prima facie case of
IIED. And we take Sudan’s point that creat ing gradations among extreme and outrageous wrongs is a precarious basis for determin ing whether and whe n to enforce the presence requirement. Rather, we endorse a n FS I A terrorism exception
because few II ED claims involve facts that address the concerns of the presence requirement while simultaneously touch ing a matter of such national significance

.

A rguing against excusi ng the presence requirement , Sudan relies heavily on
th e n ote to Restatement Third § 46. There, the reporters reviewed federal district
court decisions that have declined or failed to appl y the presence requirement in

7 Sudan argues that if Congress wanted appellees and similarly situated plaintiffs to recover damages , it wou ld have made them eligible to plead the cause of action created by § 1605A(c). Instead, it required such plaintiffs to rely on state tort law, which in some instances bars their recovery. However, t he fact that Congress left it to the states to decide wh ether plaintiffs such as appellees may recover i n no way suggests that it wanted to prevent such plaintiff s from obtain ing relief. Nor does that legislative decision curtail our common law authority to shape our own tort law.17

terrorism cases and concluded that this trend, although “worthy of note,

. . . falls
well short of the development of another exception to the presence requirement
that the Institute would endorse .” Restatement (Third) of Torts: Liab. for Phys ical
& Emotional Harm § 46 reporter’s note cmt. m (Am. Law Inst. 2012) . This
statement does not draw our h olding into question. The reporters primarily criticized the district courts for treating family members of those harmed in
terrorist attacks as “direct” victim s under Restatement Second § 46 (1), see id. , a rationale we do not rely on here. 8

In sum, this is a situation contemplated by the Second Restatement “in which presence at the time [should] not be required.” § 46 cmt. l

. W e see little
need to enforce the presence requirement in IIED cases where the jurisdictional elements of § 1605A are satisf ied and the plaintiff’s severe distress arises from a
terroris t attack that killed or injured a member of his or her immediate family

. Excusing the presence element in such cases may furt her deter foreign states from

8 Indeed, we share the rep orters’ skepticism. Terrorists undoubtedly intend to distress the public at large

— see, for example, t he definitions of terrorism found in 18 U.S.C. § 2331 (1) and D.C. Code § 22

- 3152 (1) , quoted above

. Perhaps it could be proven in an individual case (suc h as hostage taking) that the terrorists intended to cause distress to family members in particular , but we are unwilling to conclude as a matter of law that they do so in all circumstances . In other words, we think this case is governed by § 46 (2)(a ) of the Second Restatement, not by § 46 (1).18

sponsoring terrorism and allow deservi ng plaintiffs to hold culpable defendants

accoun table for their conduct. At the same time, making such an exception is not likely to produce the type of unfair and unbounded liability that the presence
element is intended to prevent

. I n this limited cont ext, therefore, we hold that the presence requirement does n ot apply

.

I V. Conclusion

For the reasons stated, we answer the certified question “No.” In accordance with D.C. Code § 11

– 723 (g) (2012 Repl.), the Clerk is directed to transmit a copy
of thi s opinion to the United States Court of Appeals for the District of Columbia
Circuit , to each of the parties , and to amici

.