Owens v. Republic of the Sudan

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. Curtiss-
Wright 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 well-
established “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,
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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
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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
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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
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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.