United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2008 Decided July 11, 2008

No. 05-5173

JAMES OWENS, ET AL.,

APPELLEES

v.

REPUBLIC OF THE SUDAN AND

INTERIOR MINISTRY OF THE REPUBLIC OF THE SUDAN,

APPELLANTS

Consolidated with

06-5079

Appeals from the United States District Court

for the District of Columbia

(No. 01cv02244)

Knox Bemis argued the cause and filed the briefs for

appellants.

Steven R. Perles argued the cause for appellees. With him

on the brief were Thomas Fortune Fay and Edward B.

MacAllister.
2

Before: SENTELLE, Chief Judge, and GINSBURG and

BROWN, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: This case arises from the alleged

role of the Republic of Sudan and its Interior Ministry (“Sudan”)

in the simultaneous U.S. embassy bombings in Nairobi, Kenya,

and Dar es Salaam, Tanzania, on August 7, 1998, carried out by

the terrorist group al Qaeda. Several of those injured in the

bombings and their family members brought suit against Sudan

under 28 U.S.C. § 1605(a)(7), alleging that Sudan materially

supported the embassy attacks. This case comes to us on

interlocutory appeal from the denial of Sudan’s motion to

dismiss. We affirm the district court’s holdings that

§ 1605(a)(7) includes no unconstitutional delegation of

Congress’s power to define the jurisdiction of the lower federal

courts and that the Third Amended Complaint sufficiently

alleges causation to meet § 1605(a)(7)’s jurisdictional

requirement. We remand the case to the district court for further

proceedings.

I. Background

A. District Court

Plaintiffs-appellees are United States nationals who were

injured in the August 7, 1998 bombings of the U.S. embassies

in Nairobi, Kenya, and Dar es Salaam, Tanzania, and family

members of those injured in the attacks perpetrated by al Qaeda.

Appellees claim Sudan materially supported the attacks by

sheltering and protecting al Qaeda “from interference while

carrying out planning and training of various persons for

terrorist attacks, including the attacks of August 7, 1998.” Third

Amended Complaint (“Compl.”) ¶ 8. Appellees assert that
3

United States courts have jurisdiction over Sudan, a foreign

sovereign, and its Interior Ministry under the state sponsor of

terrorism exception, 28 U.S.C. § 1605(a)(7), to the Foreign

Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602–11. 

On March 10, 2004, Sudan moved to dismiss appellees’

Second Amended Complaint for lack of subject matter

jurisdiction, failure to state a claim upon which relief can be

granted, the Act of State Doctrine, and the Political Question

Doctrine. Sudan also argued that 28 U.S.C. § 1605(a)(7) is an

unconstitutional delegation of power to the Executive Branch

because it allows the Secretary of State to determine the

jurisdiction of the federal courts. 

On March 29, 2005, the district court denied Sudan’s

motion to dismiss but also ordered appellees to file an amended

complaint that would state with more specificity the “material

support” Sudan provided to the perpetrators of the embassy

bombings and would allege that a Sudanese official provided

this material support while “acting within the scope of his office,

employment, or agency.” Owens v. Republic of Sudan, 374 F.

Supp. 2d 1, 15, 17 (D.D.C. 2005) (internal quotation marks

omitted). Sudan appealed this decision, but we held the appeal

in abeyance pending possible further action by the district court.

On May 3, 2005, appellees filed a Third Amended

Complaint in response to the district court’s March 29th

decision. This complaint stated with significantly more

specificity the allegations of material support on the part of

Sudan. Sudan again moved to dismiss for lack of subject matter

jurisdiction and failure to state a claim. On January 26, 2006,

the district court denied Sudan’s motion. Owens v. Republic of

Sudan, 412 F. Supp. 2d 99 (D.D.C. 2006). Sudan appealed this

decision.
4

In this appeal, we address issues in the consolidated appeals

from the district court’s March 29, 2005 and January 26, 2006

orders. Sudan asks us to reverse the district court’s denial of its

motion to dismiss for two reasons. First, Sudan argues that 28

U.S.C. § 1605(a)(7) includes an unconstitutional delegation of

Congress’s power to define the jurisdiction of the lower federal

courts. Second, Sudan argues that appellees’ Third Amended

Complaint fails to allege sufficient facts to meet the

jurisdictional causation requirement of § 1605(a)(7).

B. § 1605A’s Enactment

While this consolidated appeal from the March 29, 2005

and January 26, 2006 orders was pending in this Court,

Congress amended the state sponsor of terrorism exception. On

January 28, 2008, the President signed the National Defense

Authorization Act for Fiscal Year 2008 (“NDAA”), Pub. L. No.

110-181, 122 Stat. 3. Section 1083 of the NDAA strikes 28

U.S.C. § 1605(a)(7) from the U.S. Code and replaces it with a

new “[t]errorism exception to the jurisdictional immunity of a

foreign state.” 122 Stat. at 338–44 (codified at 28 U.S.C.

§ 1605A). This statutory change raised questions about the

application of § 1605A to pending cases such as this one and

whether § 1605(a)(7) continues to apply to them. We settled

this issue in Simon v. Republic of Iraq, No. 06-7175, slip op.

(D.C. Cir. June 24, 2008), in which we held that we “retained

jurisdiction over cases pending pursuant to former § 1605(a)(7)

when the Congress enacted the NDAA.” Id. at 7. 

For the reasons expressed in Simon, and absent any further

action by the district court since § 1605A’s enactment,

§ 1605(a)(7) continues to apply to this case. Therefore, the two

issues raised by Sudan remain relevant despite the recent

changes to the state sponsor of terrorism exception. We resolve

these issues in the discussion that follows and remand this case
5

to the district court for further proceedings. 

II. Analysis

 United States Courts of Appeal do not ordinarily have

jurisdiction over interlocutory appeals, that is, appeals from

orders that do not conclusively end the litigation, 28 U.S.C.

§ 1291, such as the denial of a motion to dismiss. But when

such a denial subjects a foreign sovereign to jurisdiction, the

order is “subject to interlocutory appeal under the collateral

order doctrine.” El-Hadad v. United Arab Emirates, 216 F.3d

29, 31 (D.C. Cir. 2000); see Simon, slip op. at 7 (holding that the

NDAA § 1083(a)(f) (enacted January 28, 2008), which prohibits

the taking of appeals “not conclusively ending the litigation”

unless “taken pursuant to section 1292(b) of [Title 28],” does

not apply to § 1605(a)(7) cases pending on appeal when the

statute was enacted and continuing under § 1605(a)(7)). We

review the district court’s denial of Sudan’s motion to dismiss

for lack of subject matter jurisdiction de novo. See Jungquist v.

Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1028

(D.C. Cir. 1997). 

A. Delegation Challenge

Sudan asserts that the courts of the United States lack

jurisdiction because Sudan, as a foreign state, enjoys foreign

sovereign immunity from suits in those courts. The fundamental

principle upon which this argument rests is the unarguable

proposition that federal courts are courts of limited jurisdiction.

Unlike the Supreme Court, which has some limited elements of

jurisdiction afforded by the Constitution, the inferior courts of

the United States, such as this court and the district court from

which this appeal lies, are creatures of statute and possess no

jurisdiction except as afforded by congressional enactment.

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552
6

(2005); Belhas v. Ya’alon, 515 F.3d 1279, 1282–83 (D.C. Cir.

2008). Congress adopted the doctrine of foreign sovereign

immunity in 28 U.S.C. § 1604, which provides that subject to

exceptions not here relevant, “a foreign state shall be immune

from the jurisdiction of the courts of the United States and of the

States except as provided in sections 1605 to 1607.” Therefore,

unless the present action falls within one of the exceptions

created by the sections incorporated in § 1604, the district court

had no jurisdiction over the instant action and should have

dismissed the case. We must therefore look to those statutes to

determine if jurisdiction lies over appellees’ claims.

Appellees argue, and the district court concluded, that the

court had jurisdiction under 28 U.S.C. § 1605(a)(7), which

provides that:

A foreign state shall not be immune from the jurisdiction of

courts of the United States or of the States in any case . . .

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 is engaged in by an official,

employee, or agent of such foreign state while acting within

the scope of his or her office, employment, or agency . . . .

However, this exception to foreign sovereign immunity applies

only where the foreign state has been “designated as a state

sponsor of terrorism under section 6(j) of the Export

Administration Act of 1979 (50 U.S.C. App. § 2405(j)) or

section 620A of the Foreign Assistance Act of 1961 (22 U.S.C.

§ 2371) at the time the act occurred.” 28 U.S.C.

§ 1605(a)(7)(A) (Supp. V. 2005). The Export Administration

Act of 1979 (“EAA”) and the Foreign Assistance Act of 1961

(“FAA”) assign to the Secretary of State the power to determine
7

whether the government of a country “has repeatedly provided

support for acts of international terrorism.” 50 U.S.C. App.

§ 2405(j)(1)(A); 22 U.S.C. § 2371(a) (identical language).

Therefore, the jurisdiction of the court under this statute is

dependent upon the designation of the foreign state (in this case,

Sudan) as a state sponsor of terrorism by the Secretary. It is

undisputed that on August 12, 1993, Secretary of State Warren

Christopher exercised his authority under the EAA and

designated Sudan a state sponsor of terrorism:

In accordance with section 6(j) of the [EAA], I hereby

determine that Sudan is a country which has repeatedly

provided support for acts of international terrorism. The

list of 6(j) countries as of this time therefore includes

Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria.

Determination Sudan, 58 Fed. Reg. 52,523 (Oct. 8, 1993). 

Sudan argues that the EAA and the FAA, by empowering

the Secretary of State, an official of the Executive Branch, to

determine which countries are subject to the state sponsor of

terrorism exception to the general rule of sovereign immunity

codified in the FSIA, constitute an unconstitutional statutory

delegation of congressional authority to the Executive in

violation of the separation of powers embodied in the

Constitution.

In order to determine whether this statute violates the

separation of powers inherent in the structure of the

Constitution, we must first look at the relevant constitutional

provisions. The Constitution assigns to Congress the power to

define the jurisdiction of the lower federal courts. This power

derives from Congress’s power in Article I “[t]o constitute

tribunals inferior to the Supreme Court,” U.S.CONST. art. I, § 8,

and in Article III to “ordain and establish” inferior courts, U.S.
8

CONST. art. III, § 1. See Kline v. Burke Constr. Co., 260 U.S.

226, 233–34 (1922) (holding that lower federal courts derive

their “jurisdiction wholly from the authority of Congress . . .

provided it be not extended beyond the boundaries fixed by the

Constitution”); Fair Assessment in Real Estate Ass’n v. McNary,

454 U.S. 100, 125 (1981) (Brennan, J., concurring in the

judgment); Belhas, 515 F.3d at 1282–83. Congress may

exercise its power to define the lower courts’ jurisdiction

through its legislative authority. U.S. CONST. art. I, § 8 (“The

Congress shall have power . . . [t]o make all laws which shall be

necessary and proper for carrying into execution the foregoing

powers, and all other powers vested by this Constitution in the

government of the United States . . . .”). Sudan’s argument

depends upon the proposition that the authority constitutionally

apportioned to Congress to define the jurisdiction of the federal

courts has been unconstitutionally delegated to the Executive by

the statutory device allowing a department of the Executive

Branch to make findings upon which the effectiveness of the

jurisdictional grant partially depends.

 

We note at the outset that the delegation by Congress to the

Executive is not nearly so broad as Sudan’s styling of it might

suggest. In the state sponsor of terrorism exception, Congress

did not empower the Executive to create a statute-like definition

or delineation of an area of jurisdiction within which the Article

III courts might exercise judicial authority over otherwise

immune foreign sovereign states. Rather, Congress delineated

the area of immunity and the exception to the immunity,

delegating to the Executive only the authority to make a factual

finding upon which the legislatively enacted statute and the

judicially exercised jurisdiction would partially turn. 

While most cases considering the constitutional limits to

congressional delegation of power to the Executive have not

dealt with the interaction of the delegation doctrine and the
9

congressional authority to define jurisdiction of the courts, the

present controversy is not without parallel. In general terms,

there is no question that Congress has some constitutional power

to make delegations of authority to the Executive or agencies of

the federal government. True, Article I, Section 1 of the

Constitution vests “all legislative power herein granted” to the

“Congress of the United States.” While that text does not permit

the delegation of legislative power, the Supreme Court has

repeatedly taught that Congress can confer “decisionmaking

authority upon agencies,” but that to do so constitutionally,

“Congress must ‘lay down by legislative act an intelligible

principle to which the person or body authorized to [act] is

directed to conform.’” Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 472 (2001) (emphasis and brackets in original)

(quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S.

394, 409 (1928)). 

The “intelligible principle” standard of review for

delegation challenges “has been driven by a practical

understanding that in our increasingly complex society, replete

with ever changing and more technical problems, Congress

simply cannot do its job absent an ability to delegate power

under broad general directives.” Mistretta v. United States, 488

U.S. 361, 372 (1989). Thus, Article I’s vesting of legislative

powers in Congress “do[es] not prevent Congress from

obtaining the assistance of its coordinate Branches.” Id. The

intelligible principle that limits the Executive Branch’s authority

pursuant to a delegation can be open to many interpretations yet

pass constitutional muster. For example, the Supreme Court in

Lichter v. United States, 334 U.S. 742 (1948), upheld a

delegation to Executive officials to determine “excessive

profits” in government contracts during wartime because the

term was defined by “the purpose of the Renegotiation Act and

its factual background.” Id. at 785. And in National

Broadcasting Co. v. United States, 319 U.S. 190 (1943), the
10

Court upheld a delegation to the Federal Communications

Commission (“FCC”) to regulate broadcast licensing “as public

interest, convenience, or necessity requires” because the

‘“purpose of the Act, the requirements it imposes, and the

context of the provision’” cabin the agency’s discretion. Id. at

225–26 (quoting N.Y. Cent. Sec. Corp. v. United States, 287 U.S.

12, 24 (1932)). So when we review statutes for an intelligible

principle that limits the authority delegated to a branch outside

the legislature, we do not confine ourselves to the isolated

phrase in question, but utilize all the tools of statutory

construction, including the statutory context and, when

appropriate, the factual background of the statute to determine

whether the statute provides the bounded discretion that the

Constitution requires.

Sudan asks this Court to apply a stricter standard to this

delegation than to delegation challenges we have considered in

the past because this delegation involves powers given to

Congress in Article III of the Constitution. See U.S.CONST. art.

III, § 1 (“The judicial Power of the United States, shall be vested

in one supreme Court, and in such inferior Courts as the

Congress may from time to time ordain and establish.”). Sudan

proposes that Congress’s Article III power to define lower

federal courts’ jurisdiction is more “core” than its Article I

powers, thus requiring a delegation standard more exacting than

what would otherwise be permitted by the Supreme Court’s

precedent, or perhaps permitting no delegation at all. For

support, Sudan cites cases from two of our sister circuits, neither

of which holds that a stricter standard applies to Article III

delegation, but both do use language suggesting one might. 

 Sudan first cites Miller v. FCC, 66 F.3d 1140 (11th Cir.

1995), in which the Eleventh Circuit stated in dicta that “it is

axiomatic that Congress has not delegated, and could not

delegate, the power to any agency to oust state courts and
11

federal district courts of subject matter jurisdiction.” Id. at 1144

(declining to review a FCC advisory opinion on the preemptive

force of one of its enabling statutes because there was no

pending case or controversy). The Miller court cites no

authority for this proposition and includes no analysis of the

issue. We do not read this excerpted phrase to exclude all forms

of delegation of Congress’s jurisdiction-conferring power.

Specifically, it does not speak to the issue at hand, which is

whether Congress may delegate the authority to the Executive

Branch to make a finding of fact upon which subject matter

jurisdiction depends, as opposed to the authority to define those

conditions in the first place. 

Sudan next cites a Seventh Circuit opinion that addressed

the standard for delegating Congress’s Article III powers over

the courts more directly, though still in dicta. See United States

v. Mitchell, 18 F.3d 1355 (7th Cir. 1994). Admitting that “such

a theory has found little promotion since” A.L.A. Schechter

Poultry Corp. v. United States, 295 U.S. 495, 529 (1935), and

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), the only

cases in our nation’s history in which the Supreme Court struck

down a statute on nondelegation grounds, the court pondered

whether “anything in the Framers’ language would permit

Congress to delegate such a core legislative function as its

control over federal court jurisdiction to any agency or

commission.” Mitchell, 18 F.3d at 1360 n.7. The court further

noted that Congress’s “ability to delegate a power as sensitive

and central to our Anglo-American legal tradition as shaping a

federal court’s jurisdiction,” id., is readily distinguishable from

cases such as Yakus v. United States, 321 U.S. 414 (1944),

which permitted Congress to delegate the authority to fix

commodity and rent prices during wartime to an executive

commission. Despite language suggesting its support for

appellants’ argument, the Seventh Circuit never decided the

Article III delegation issue. Furthermore, like the Eleventh
12

Circuit in Miller, the Seventh Circuit did not consider the

difference between delegating to the Executive the authority to

define the conditions under which the courts will have

jurisdiction and delegating the authority to make factual findings

that satisfy those conditions. In any event, we are not persuaded

by its dicta for the reasons we discuss below.

A statute that delegates factfinding decisions to the

President which rely on his foreign relations powers is less

susceptible to attack on nondelegation grounds than one

delegating a power over which the President has less or no

inherent Constitutional authority. As the Supreme Court

explained in Zemel v. Rusk, 381 U.S. 1 (1965), 

[i]t is important to bear in mind, in appraising this

[delegation] argument, that because of the changeable

and explosive nature of contemporary international

relations, and the fact that the Executive is immediately

privy to information which cannot be swiftly presented

to, evaluated by, and acted upon by the legislature,

Congress—in giving the Executive authority over

matters of foreign affairs—must of necessity paint with

a brush broader than that it customarily wields in

domestic areas. 

Id. at 17. And as the Court noted in United States v. CurtissWright Export Corp., 299 U.S. 304 (1936), “requiring Congress

in this field of governmental power to lay down narrowly

definite standards by which the President is to be governed” may

be unwise because in matters involving foreign relations the

President must sometimes rely on confidential information and

must also consider “the effect which his action may have upon

our foreign relations.” Id. at 321–22. The Court again applied

this reasoning in Knauff v. Shaughnessy, 338 U.S. 537 (1950):

“Normally Congress supplies the conditions of the privilege of
13

entry into the United States. But because the power of exclusion

of aliens is also inherent in the executive department of the

sovereign, Congress may in broad terms authorize the executive

to exercise the power . . . .” Id. at 543. 

We also note that the particular delegation Sudan is

challenging is narrower than Sudan suggests. See Whitman, 531

U.S. at 475 (“[T]he degree of agency discretion that is

acceptable varies according to the scope of the power

congressionally conferred.”). Congress did not, as Sudan

argues, delegate its power to define federal jurisdiction to the

Executive Branch; instead, it simply assigned to the President

the authority to make a factfinding upon which jurisdiction

partially rests. The Supreme Court has consistently upheld

delegations, such as the one here, that predicate the operation of

a statute upon some Executive Branch factfinding. See, e.g.,

United States v. Grimaud, 220 U.S. 506 (1911) (upholding a

statute delegating to the Secretary of Agriculture the duty to

issue rules and regulations for a forest reservation, which the

statute then designated as criminal offenses). The Supreme

Court affirmed this principle as early as 1892. The Court in

Marshall Field & Co. v. Clark, 143 U.S. 649 (1892), analyzed

whether legislation is valid if “it makes the suspension of certain

provisions and the going into operation of other provisions of an

act of congress depend upon the action of the president based

upon the occurrence of subsequent events, or the ascertainment

by him of certain facts, to be made known by his proclamation.”

Id. at 683. Noting that the President in that case “was the mere

agent of the law-making department to ascertain and declare the

event upon which [Congress’s] expressed will was to take

effect,” id. at 693, the Court held that “‘[t]he legislature cannot

delegate its power to make a law, but it can make a law to

delegate a power to determine some fact or state of things upon

which the law makes, or intends to make, its own action

depend.’” Id. at 694 (quoting Locke’s Appeal, 72 Pa. 491, 1873
14

WL 11863, at *6 (1873)). 

The Supreme Court has also upheld statutes that predicate

the courts’ subject matter jurisdiction upon an Executive Branch

factfinding. The statute at issue in Jones v. United States, 137

U.S. 202 (1890), extended admiralty jurisdiction over land the

President determined “appertain[ed]” to the United States when

certain other preconditions were met—namely, that the island

contained guano and was not within the lawful jurisdiction of

another government. Id. at 209. The President’s decision to

recognize the “guano island” involved in Jones directly

impacted the courts’ admiralty jurisdiction. Id. at 211. In

response to arguments challenging the constitutionality of the

jurisdiction-conferring statute, the Supreme Court held that it

“unequivocally extends the provisions of the statutes of the

United States for the punishment of offenses committed upon

the high seas to like offenses committed upon guano islands

which have been determined by the president to appertain to the

United States.” Id. The Supreme Court again in Curtiss-Wright

upheld a joint resolution that predicated the operation of—and

therefore the ability of the courts to enforce—a criminal statute

on a presidential factfinding in an area in which he has inherent

constitutional authority. 299 U.S. at 312, 329 (confirming that

the President had the authority to proclaim that the prohibition

of the sale of arms to countries engaged in armed conflict in the

Chaco “‘may contribute to the reestablishment of peace’” in the

region (quoting Joint Resolution, ch. 365, 48 Stat. 811)). 

Section 1605(a)(7), like the statutes at issue in Jones and

Curtiss-Wright, predicates its operation on an Executive

factfinding in an area in which he has considerable

constitutional authority—foreign affairs. And unlike the prior

cases, the particular factfinding delegated to the Executive

Branch by § 1605(a)(7) is just one of many preliminary

conditions upon which this Court’s jurisdiction is based. In
15

order to exercise jurisdiction, we must also ensure that the

plaintiffs seek money damages for personal injury or death, that

the injury 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,” that the act was

perpetrated by an official, employee, or agent of the foreign

(terrorist) state “while acting within the scope of his or her

office, employment, or agency,” that the foreign state had a

chance to arbitrate the claim “if the act occurred in the foreign

state[,]” and that the claimant or victim was a United States

national when the act occurred. 28 U.S.C. § 1605(a)(7). Thus

it is well within the Supreme Court’s precedent to hold that the

delegation of the particular factfinding authority in § 1605(a)(7)

does not violate the separation of powers inherent in the

Constitution.

Finally, we note that § 1605(a)(7) is not the only component

of the FSIA that predicates our jurisdiction, in part, upon an

Executive factfinding. The FSIA in its entirety depends upon

the President’s decision to recognize an entity as a foreign

nation because the FSIA only applies to recognized nations.

Sudan does not dispute this delegation of factfinding authority,

presumably because it is settled that the decision to recognize a

foreign state “is exclusively a function of the Executive.” Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964). The

President’s power to recognize foreign sovereignties not only

impacts our jurisdiction under the FSIA; it also directly impacts

the alienage jurisdiction of the federal courts, which requires

that a civil action be between “citizens of a State and citizens or

subjects of a foreign state.” 28 U.S.C. § 1332(a)(2); see, e.g.,

Bank of Hawaii v. Balos, 701 F. Supp. 744, 747 (D. Haw. 1988)

(holding that the Republic of the Marshall Islands is a foreign

state for the purpose of alienage jurisdiction, relying on the fact

that “both the Congress and the President have indicated that the

RMI is henceforth to be treated as an independent sovereign.”).
16

A delegation to the Executive Branch to determine whether a

foreign sovereign “has repeatedly provided support for acts of

international terrorism,” 50 U.S.C. App. § 2405(j)(1)(A), is

certainly a narrower conferrence of authority than one that

permits the President to determine whether an entity is a

recognized nation at all.

Bearing in mind that the shared responsibilities of the

Legislative and Executive Branches in foreign relations may

permit a wider range of delegations than in other areas, and the

long-established precedent supporting the constitutionality of

statutes that predicate the operation of a statute on an Executive

Branch factfinding, we analyze § 1605(a)(7) under our wellestablished “intelligible principle” standard. When looking for

principles that guide the delegation, we look first to the text of

the statute, as well as to other ordinary tools of statutory

construction. See Lichter, 334 U.S. at 785. Because the

Secretary of State designated Sudan a state sponsor of terrorism

pursuant to his authority under the EAA, we look to limits and

standards in that statute which provide parameters to guide the

Secretary of State’s authority. 

The EAA permits the Secretary of State to label a country

a state sponsor of terrorism if the “government of such country

has repeatedly provided support for acts of international

terrorism.” 50 U.S.C. App. § 2405(j)(1)(A). Sudan argues that

this delegation is not specific enough—that it does not define

“repeatedly,” “support,” or “acts of international terrorism,” or

require Congress’s approval. In light of the Supreme Court’s

precedent, it is clear that no further definition of these terms is

required; they are sufficiently intelligible as they are. See

Whitman, 531 U.S. at 475 (“[W]e did not require the statute to

decree how ‘imminent’ was too imminent, or how ‘necessary’

was necessary enough, or even . . . how ‘hazardous’ was too

hazardous.”). In any event, a related statute requiring the
17

Secretary of State to prepare a detailed assessment of state

sponsors of terrorism defines, inter alia, the terms “terrorism”

and “international terrorism.” 22 U.S.C. § 2656f(d)(1), (2). The

statutory context surrounding § 1605(a)(7) coupled with the

Executive Branch’s inherent constitutional authority in the area

of foreign affairs provide more than enough guidance to the

Secretary of State to make a finding of fact upon which the

operation of § 1605(a)(7) partially depends. We hold that

§ 1605(a)(7) does not include an unconstitutional delegation of

authority to the Executive Branch.

B. Sufficiency of the Pleadings

Sudan argues that appellees failed to plead the jurisdictional

causation requirement; specifically, it argues appellees failed to

plead sufficient facts to “reasonably support a finding” that

Sudan’s material support of al Qaeda in the early 1990s caused

the embassy bombings in Kenya and Tanzania in 1998. See

Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d

82, 94 (D.C. Cir. 2002) (holding that plaintiffs’ allegations of

abuse did not amount to the allegations of torture required by

§ 1605(a)(7) to survive a motion to dismiss). Because

“causation is indeed a jurisdictional requirement” in the context

of § 1605(a)(7), and we would unnecessarily subject Sudan to

“the attendant burdens of litigation” if we were to errantly

conclude at the start that it is sufficiently pled, we have authority

to review this challenge in this interlocutory appeal. Kilburn v.

Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123,

1126–27 (D.C. Cir. 2004) (internal quotation marks omitted). 

In order for § 1605(a)(7) to confer jurisdiction over a

foreign state sponsor of terrorism, a plaintiff must plead, inter

alia, that (1) “while acting within the scope of his or her office,

employment, or agency,” (2) “an official, employee, or agent”

of the foreign state (3) either (i) committed “an act of torture,
18

extrajudicial killing, aircraft sabotage, [or] hostage taking,” or

(ii) “provi[ded] . . . material support or resources . . . for such an

act,” (4) which “caused” the plaintiff “personal injury or death.”

28 U.S.C. § 1605(a)(7). This section “requires, as a matter of

jurisdiction, a causal connection between the foreign state’s

alleged acts and the victim’s alleged injuries.” Kilburn, 376

F.3d at 1127. Citing Kilburn’s discussion of § 1605(a)(7)’s

causation requirement, appellees contend they must plead

“proximate” causation but not “but-for” causation. Sudan

responds that Kilburn “does not eliminate” the but-for

requirement because that requirement “is one element of

proximate cause.” We need not decide whether § 1605(a)(7)

requires but-for causation because, as discussed below,

appellees have alleged facts sufficient to satisfy a but-for

requirement.

Before we consider appellees’ allegations, however, we

must address Sudan’s contention that heightened specificity is

required of appellees’ pleading because causation is a

jurisdictional requirement. But the FSIA directs that “[a]s to

any claim for relief with respect to which a foreign state is not

entitled to immunity under section 1605 or 1607 of this chapter,

the foreign state shall be liable in the same manner and to the

same extent as a private individual under like circumstances

. . . .” 28 U.S.C. § 1606 (emphasis added). Federal Rule of

Civil Procedure 8(a), the rule governing the sufficiency of

appellees’ Third Amended Complaint, requires only “a short and

plain statement of the grounds for the court’s jurisdiction . . . ;

[and] a short and plain statement of the claim showing that the

pleader is entitled to relief . . . .” A private individual served

with a pleading that is subject to Rule 8(a) would not receive the

benefit of a heightened pleading requirement unless a Rule or

statute so ordains. Swierkiewicz v. Sorema N.A., 534 U.S. 506,

513 (2002). Sudan points to no Rule or statute that imposes a

heightened pleading requirement in the context of the terrorism
19

exception. Cf. FED. R. CIV. P. 9(b) (imposing heightened

pleading standards for certain types of claims and defenses).

Instead, Sudan tries to limit the principle expressed in

Swierkiewicz to merits pleadings. That argument is inconsistent

with Rule 8, which, as just noted, expressly applies its ‘a short

and plain statement’ requirement to jurisdictional pleadings. See

FED. R. CIV. P. 8(a)(1). Indeed, we have held the standard for

assessing the sufficiency of jurisdictional pleadings under the

FSIA “is similar to that of Rule 12(b)(6).” Price, 294 F.3d at 93

(citations omitted). Thus no heightened pleading requirement

applies here. “Pleadings must be construed so as to do justice.”

FED.R.CIV. P. 8(e). We only require that the complaint contain

“enough factual matter (taken as true)” to suggest that Sudan’s

material support of al Qaeda was a cause of the embassy

bombings. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,

1965 (2007). In other words, we require “enough fact to raise

a reasonable expectation that discovery will reveal evidence” of

this causal link. Id.; see also Stokes v. Cross, 327 F.3d 1210,

1215 (D.C. Cir. 2003).

Sudan argues that the Third Amended Complaint fails to

allege enough facts “to raise a reasonable expectation that

discovery will reveal evidence of” causation. Twombly, 127 S.

Ct. at 1965. Specifically, it states that the complaint lacks

specific dates other than Sudan’s invitation to al Qaeda in the

early 1990s to relocate to Sudan, lacks allegations that Sudan’s

aid of al Qaeda’s weapons movement and explosives training

was connected to the embassy bombings, and lacks allegations

that al Qaeda would not have had sufficient finances to carry out

the attacks if not for Sudan’s help. 

In support of their claim that Sudan’s “material support” of

al Qaeda was a cause of the embassy bombings, appellees allege

that Sudan “entered into an arrangement with al Qaeda and

Hezbollah under which those organizations received shelter and
20

protection from interference while carrying out planning and

training of various persons for terrorist attacks, including the

attacks of August 7, 1998.” Compl. ¶ 8. They support this

comparatively general allegation with numerous facts about

Sudan’s provision of protection for al Qaeda’s leadership and

agents, its aid in al Qaeda’s weapons movement, its provision of

financial resources to the terrorist group, and even its work to

ensure the secrecy of al Qaeda’s training camps and agents. Id.

Appellees claim that “[w]ithout [this] material support, . . . Al

Qaeda could not have carried out the United States embassy

bombings that caused plaintiffs’ injuries.” Id. Although

“Plaintiffs’ allegations are somewhat imprecise as to the

temporal proximity of Sudan’s actions to and their causal

connection with the” terrorist act and “do not chart a direct and

unbroken factual line between Sudan’s actions” and the terrorist

act, this “imprecision is not fatal for purposes of jurisdictional

causation so long as the allegations, and the reasonable

inferences drawn therefrom, demonstrate a reasonable

connection” between the foreign state’s actions and the terrorist

act. Rux v. Republic of Sudan, 461 F.3d 461, 474 (4th Cir.

2006). “A claimant need not set out all of the precise facts on

which the claim is based in order to survive a motion to

dismiss.” Price, 294 F.3d at 93. Appellees’ factual allegations

and the reasonable inferences that can be drawn therefrom show

a reasonable enough connection between Sudan’s interactions

with al Qaeda in the early and mid-1990s and the group’s attack

on the embassies in 1998 to meet § 1605(a)(7)’s jurisdictional

causation requirement.

III. Conclusion

Because we find that § 1605(a)(7) includes no

unconstitutional delegation of Congress’s power to define the

jurisdiction of the lower federal courts and appellees’ Third

Amended Complaint sufficiently alleges the jurisdictional
21

causation requirement, we affirm the district court’s denial of

Sudan’s motion to dismiss. We remand this case to the district

court for further proceedings.