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Federal appeals court reinstates USS Cole bombing lawsuit

The US Court of Appeals for the Fourth Circuit [official website] ruled [opinion, PDF] Thursday that families of 17 sailors killed in the 2000 bombing of the USS Cole may file a second suit to collect $282 million in damages. The court reversed the ruling by the US District Court for the Eastern District of Virginia [official website] that the previous judgment [JURIST report] under the Death on the High Seas Act (DOHSA) precluded an action against the Republic of Sudan under the Foreign Sovereign Immunities Act (FSIA) [texts]. The court reasoned that because the plaintiffs filed a new action directly under 28 USC § 1605A [text], the various provisions of the National Defense Authorization Act (NDAA) [text] governing how to apply § 1605A retroactively to pending and previous actions were inapplicable to the case. Moreover, both the change in statutory law between the plaintiffs' initial complaint in Rux v. Republic of Sudan and their complaint in Kumar et al. v. The Republic of Sudan [opinions, PDF] and the substantial foreign and domestic policy concerns at issue justified an exception to the res judicata doctrine.

US District Judge Robert Doumar ruled in 2005 that there was sufficient evidence for the families to pursue the lawsuit after the first suit [JURIST reports] was filed against Sudan in 2004. The families allege that Sudan helped finance the attack and allowed an al Qaeda operative to ship explosives to Yemen. To overcome the sovereign immunity [Cornell LII backgrounder] typically accorded a foreign country in US courts under the FSIA, the plaintiffs invoked that statute's exception for state sponsors of terrorism. On October 12, 2000, the USS Cole exploded, killing 17 Navy sailors and injuring 42 others.

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