JENNIFER CLODFELTER, Individually v. Republic of Sudan

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2118
JENNIFER CLODFELTER, Individually and as Next Friend of
N.C., a minor; JOHN CLODFELTER; GLORIA CLODFELTER; JOSEPH
CLODFELTER; SHARLA COSTELOW, Individually and as the Next
Friend of E.C. and B.C., minors; GEORGE COSTELOW; DOROTHY
COSTELOW; RONALD W. FRANCIS; SANDRA FRANCIS; DAVID FRANCIS;
JAMES FRANCIS; SARAH GUANA ESQUIVEL; LOU GUNN; MONA GUNN;
ANTON J. GUNN; JAMAL GUNN; JASON GUNN; NOVELLA WIGGINS;
DIANE MCDANIELS, Individually and as Next Friend of J.M., a
minor; FREDERICA MCDANIELS-BESS; JESSE NIETO; JAMIE OWENS,
Individually and as the Guardian of the Estate and Next
Friend of I.M.O., a minor; KENYON EMBRY; TERESA SMITH;
LEROY PARLETT; ETTA PARLETT, Individually and as Next
Friend of H.P., a minor; KERA PARLETT MILLER; MATTHEW
PARLETT; KATE BROWN; SEAN WALSH; KEVIN ROY; OLIVIA RUX;
ROGELIO SANTIAGO; SIMEONA SANTIAGO; JACQUELINE SAUNDERS,
Individually and as the Guardian of the Estate and Next
Friend for J.T.S., a minor; ISLEY GAYLE SAUNDERS; GARY
SWENCHONIS, SR.; DEBORAH SWENCHONIS; SHALALA SWENCHONIS-
WOOD; LORIE D. TRIPLETT, Individually and as the Guardian
of the Estate and Next Friend of A.T. and S.R.T., minors;
REED TRIPLETT; SAVANNAH TRIPLETT; FREDDIE TRIPLETT; THEODIS
TRIPLETT; KEVIN TRIPLETT; WAYNE TRIPLETT; THOMAS WIBBERLY;
PATRICIA A. WIBBERLY; TONI WIBBERLY; TIMOTHY PAUL SCEVIOUR,
as Personal Representative of the Estates of Kenneth Eugene
Clodfelter, Richard Costelow, Lakeina Monique Francis,
Timothy Lee Gauna, Cherone Louis Gunn, James Roderick
McDaniels, Marc Ian Nieto, Ronald Scott Owens, Lakiba
Nicole Palmer; TIMOTHY PAUL SCEVIOUR, as Personal
Representative of the Estates of Joshua Langdon Parlett,
Patrick Howard Roy, Kevin Shawn Rux, Ronchester Mananga
Santiago, Timothy Lamont Saunders, Gary Graham Swenchonis,
Jr., Andrew Triplett and Craig Bryan Wibberly,
Plaintiffs - Appellants,
and

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2
OLLESHA SMITH JEAN; JACK EARL SWENSON; AVINESH KUMAR,
Individually and as the Guardian of the Estate and Next
Friend of C.K., a minor; HUGH M. PALMER,
Plaintiffs,
v.
REPUBLIC OF SUDAN,
Defendant – Appellee,
UNITED STATES OF AMERICA,
Intervenor.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:10-cv-00171-RGD-TEM)
Argued: May 14, 2013 Decided: June 20, 2013
Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
Reversed and remanded by published opinion. Judge Duncan wrote
the opinion, in which Judge Agee and Judge Davis joined. Judge
Davis wrote a separate concurring opinion.
ARGUED: Andrew C. Hall, HALL, LAMB AND HALL, P.A., Miami,
Florida, for Appellants. Adam C. Jed, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Intervenor. ON BRIEF: Roarke
Maxwell, HALL, LAMB AND HALL, P.A., Miami, Florida; Kevin E.
Martingayle, STALLINGS & BISCHOFF, P.C., Virginia Beach,
Virginia; Nelson M. Jones, III, LAW FIRM OF NELSON M. JONES,
III, Houston, Texas; James Cooper-Hill, LAW OFFICE OF JAMES
COOPER-HILL, Rockport, Texas, for Appellants. Neil H. MacBride,
United States Attorney, Alexandria, Virginia; Stuart F. Delery,
Acting Assistant Attorney General, Mark B. Stern, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor.

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DUNCAN, Circuit Judge:
After the bombing of the U.S.S. Cole in October 2000,
fifty-nine family members of the victims (the “plaintiffs”)
filed suit against the Republic of Sudan (“Sudan”) in 2004. In
2007, the district court found Sudan liable under the Death on
the High Seas Act (the “DOHSA”), and ordered it to pay damages.
When the plaintiffs, joined by four others not party to the 2004
complaint, commenced a new suit against Sudan in April 2010
invoking a federal cause of action under the Foreign Sovereign
Immunities Act (the “FSIA”), the district court concluded that
the previous judgment under the DOHSA precluded an action under
the FSIA. For the reasons that follow, we reverse.
I.
This appeal is the fourth time the plaintiffs have appeared
before us. The three previous instances were in connection with
the plaintiffs’ action in Rux v. Republic of Sudan. After
briefly setting out the underlying facts, we describe the
procedural history of Rux and this case in greater detail.

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A.
On October 12, 2000, the U.S.S. Cole, a Navy Destroyer,
entered the Port of Aden in Yemen to refuel.1 As it refueled,
two males approached the Navy Vessel in a small motorboat.
Shortly thereafter, the small boat exploded, killing seventeen
Navy sailors and injuring forty-two others.
This attack was carried out by operatives from Al Qaeda, a
worldwide terrorist network then led by Osama Bin Laden. During
much of the 1990s, Bin Laden and other Al Qaeda members resided
in Sudan, which provided them with the support, guidance, and
resources necessary to perpetrate the attack on the U.S.S. Cole.
B.
Although the plaintiffs filed their complaint in the
instant case in April 2010, the relevant procedural history
begins when they first filed suit against Sudan in 2004. To
overcome the immunity typically accorded a foreign country in
U.S. courts under the FSIA, the plaintiffs invoked that
statute’s exception for state sponsors of terrorism. See 28
1 These facts are drawn from the district court’s
comprehensive discussion of the October 2000 attack on the
U.S.S. Cole. See Rux v. Republic of Sudan, 495 F. Supp. 2d 541,
544-54 (E.D. Va. 2007).

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U.S.C. § 1605(a)(7).2 The United States Department of State had
designated Sudan a “state sponsor of terrorism” in August 1993.
See Determination Sudan, 58 Fed. Reg. 52,523 (Oct. 8, 1993).
Section 1605(a)(7) of the FSIA operated to confer subject-matter
jurisdiction over Sudan by stripping its immunity, but did not
provide a federal cause of action. Cicippio-Puleo v. Islamic
Republic of Iran, 353 F.3d 1024, 1033-36 (D.C. Cir. 2004).3 The
plaintiffs therefore asserted wrongful death claims under the
DOHSA, 46 U.S.C. §§ 30301 et seq., and state law claims for
intentional infliction of emotional distress and maritime
wrongful death.
Sudan moved to dismiss the 2004 complaint on jurisdictional
grounds. The district court denied Sudan’s motion, and we
affirmed. See Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir.
2006). Sudan then informed the district court by letter that it
would not participate in the merits of the case.
2 Congress repealed this provision in 2008 and replaced it
with 28 U.S.C. § 1605A. We explain the relevant differences
between § 1605(a)(7) and § 1605A below.
3 Before the D.C. Circuit’s ruling in Cicippio-Puleo, a
number of district courts had interpreted § 1605(a)(7) as both
stripping a foreign state’s immunity and providing a substantive
cause of action. Filing their action after Cicippio-Puleo, the
plaintiffs only invoked § 1605(a)(7) to strip Sudan’s immunity
from suit. As we explain below, Congress effectively overturned
Cicippio-Puleo by creating a federal cause of action under the
FSIA in 2008 through the enactment of § 1605A.

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6
The plaintiffs subsequently moved in district court for
entry of default and default judgment against Sudan, which the
FSIA permits only where a plaintiff “establishes his claim or
right to relief by evidence satisfactory to the court.” 28
U.S.C. § 1608(e). Following a two-day trial in March 2007, the
district court concluded the plaintiffs had established
sufficient evidence to warrant entry of default judgment for
wrongful death under the DOHSA. By contrast, the district court
dismissed for failure to state a claim the plaintiffs’ state law
claims for intentional infliction of emotional distress and
maritime wrongful death on the basis that the DOHSA preempted
those claims. The district court then calculated each
plaintiff’s pecuniary loss as required by the DOHSA, see 46
U.S.C. § 30303 (“The recovery in an action under this chapter
shall be a fair compensation for the pecuniary loss sustained by
the individuals for whose benefit the action is brought.”), and
ordered Sudan to pay $7,956,344 in compensatory damages to
eligible plaintiffs.
The plaintiffs appealed the district court’s dismissal of
their state law claims. While this appeal was pending, Congress
passed the National Defense Authorization Act for Fiscal Year
2008 (the “NDAA”), Pub. L. No. 110-181, 122 Stat. 3, which
became effective on January 28, 2008. The NDAA potentially
affected the plaintiffs’ case in two significant ways. First, §

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1083(a) of the NDAA repealed the FSIA provision governing state
sponsors of terrorism, § 1605(a)(7), and replaced it with a new
provision: 28 U.S.C. § 1605A. While § 1605A retained the
immunity-stripping function of the previous statutory provision,
it explicitly provided for a federal private right of action and
allowed plaintiffs to seek “economic damages, solatium, pain and
suffering, and punitive damages” for certain torts committed by
foreign states.4 § 1605A(c).
The second way the NDAA potentially affected the
plaintiffs’ case was through a detailed provision governing how
and under what circumstances § 1605A would apply to pending and
decided cases. See NDAA § 1083(c). Where a plaintiff, in
bringing a “prior action,” had relied on § 1605(a)(7) as the
source of a cause of action, and that action had been “adversely
affected on the grounds that [§ 1605(a)(7)] fail[ed] to create a
cause of action against the [foreign] state,” that plaintiff
could move the district court to have the case treated as though
it had been originally filed under § 1605A. See NDAA §
1083(c)(2). Section 1083(c)(2)(B) waived defenses of res
4 Specifically, Congress created a cause of action “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” if committed “by an
official, employee, or agent of [a] foreign state . . . .” §
1605A(a).

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judicata and collateral estoppel for any “prior actions.”
Finally, the NDAA also permitted a plaintiff who had timely
commenced a suit under § 1605(a)(7) to bring a “related action”
under § 1605A so long as the plaintiff commenced the related
action no more than sixty days after either the entry of
judgment in the original action or the date of the NDAA’s
enactment. NDAA § 1083(c)(3).
On the plaintiffs’ motion, we remanded Rux to the district
court to determine whether the newly created private right of
action under § 1605A of the FSIA took precedence over the DOHSA
for terrorism-related deaths occurring on the high seas. At the
district court, the plaintiffs moved under NDAA § 1083(c)(2)(A)
to amend their complaint to add a cause of action under the
newly enacted § 1605A. Noting that the plaintiffs had filed
their complaint after the D.C. Circuit held in Cicippio-Puleo
that § 1605(a)(7) did not create a private right of action, the
district court concluded that plaintiffs had not relied upon §
1605(a)(7) as creating a substantive cause of action. See Rux
v. Republic of Sudan, 672 F. Supp. 2d 726, 734-35 (E.D. Va.
2009). It therefore denied plaintiffs’ motion to amend,
answering our inquiry--whether § 1605A trumped the DOHSA for
terrorism-related deaths at sea--in the negative. Id. at 738.
The plaintiffs again appealed.

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9
After the plaintiffs and the government, which intervened
under 28 U.S.C. § 517, filed their briefs, but before oral
argument, the plaintiffs, joined by several others, filed a new
complaint in the case now before us. See Kumar et al. v. The
Republic of Sudan, No. 10-cv-171 (E.D. Va. filed Apr. 15, 2010).
In light of the new filing and the contrary positions taken by
the plaintiffs, we dismissed the plaintiffs’ appeal of the
district court’s denial of their motion to amend under NDAA §
1083(c)(2) as moot, and affirmed the district court’s dismissal
of the state law claims.5 See Rux v. Republic of Sudan, 410 F.
App’x 581, 586-87 (4th Cir. 2011). In a footnote, we made clear
that we were “proceeding under the assumption that the district
court will give full and fair consideration to [the plaintiffs’]
arguments regarding the existence of a live controversy in their
new, related action filed directly under § 1605A . . . and will
exercise an appropriate measure of restraint with regards to the
well-established principle of constitutional avoidance.” Id. at
586 n.8.
5 Considering that the plaintiffs argued that § 1605A
preempted their state law claims, we assumed without deciding
the preemption of those state law claims and affirmed the
district court’s dismissal on that basis.

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C.
This extended background places the current case and the
district court’s decision below in the proper context. The
complaint in Kumar v. Sudan listed the same fifty-nine
plaintiffs from Rux and added four others, Avinesh Kumar, Hugh
M. Palmer, Jack Earl Swenson, and Ollesha Smith Jean
(collectively, the “Kumar plaintiffs”). The complaint alleged
seventeen counts of wrongful death under 28 U.S.C. § 1605A.
With Sudan again failing to enter an appearance, the Kumar
plaintiffs moved in July 2010 for default judgment under the
FSIA. The district court set a hearing on the Kumar plaintiffs’
motion, advising them in an order that it intended to address
five issues: whether it had jurisdiction; whether the Kumar
plaintiffs’ claims were barred by res judicata; whether the
Kumar plaintiffs’ claims satisfied the statute of limitations
under NDAA § 1083(c)(3); whether the waiver of res judicata
under NDAA § 1083(c)(2)(B) was constitutional as applied to a
foreign sovereign; and whether NDAA § 1083(c) violated the
Constitution’s separation of powers doctrine. J.A. 86.
After considering briefs and conducting a hearing, the
district court withheld ruling on the motion for default
judgment with respect to the four new plaintiffs, and denied it
as to the fifty-nine plaintiffs for whom it had entered judgment
in Rux. The district court’s analysis first addressed whether

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to construe the complaint in Kumar as a “related action” under
NDAA § 1083(c)(3) or a new action filed directly under 28 U.S.C.
§ 1605A. Reasoning that the plaintiffs had failed to act within
sixty days of either the passage of the NDAA in January 2008 or
the date of entry of judgment in Rux, the district court
concluded that they had not commenced a related action under
NDAA § 1083(c)(3). J.A. 166.
The district court next analyzed whether the doctrine of
res judicata barred the plaintiffs’ claims. Noting that we
apply the “transactional” test, which considers whether “the
claim presented in the new litigation ‘arises out of the same
transaction or series of transactions as the claim resolved in
the prior judgment,’” id. (quoting Pittson Co. v. United States,
199 F.3d 694, 704 (4th Cir. 1999)), the district court found
there was “no question” that Kumar arose out of the same
transaction as that at issue in Rux, id. at 167.
In concluding that res judicata precluded the plaintiffs’
claims, the district court distinguished and disagreed with In
re Islamic Republic of Iran Terrorism Litigation, 659 F. Supp.
2d 31, 84-86 (D.D.C. 2009), which considered, inter alia,
whether to give res judicata effect to prior actions under §
1605(a)(7). It distinguished Iran Terrorism Litigation on the
ground that the plaintiffs here could have brought their claims
as a related action under NDAA § 1083(c)(3), but chose not to.

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The district court also disagreed with the statement in Iran
Terrorism Litigation that res judicata “cannot be applied where,
as here, the claims now being asserted could not have been
raised in the prior litigation.” Id. at 84. Instead, noting a
general rule that “changes in the law do not overcome the
effects of res judicata,” the district court reasoned that
although some courts recognize an exception where the
legislature creates a new statutory cause of action, “the weight
of these precedents” was “doubtful.” J.A. 168.
Moving beyond its res judicata analysis, the district court
maintained that permitting the plaintiffs to bring a new cause
of action would in any event run afoul of the constitutional
principles of finality and separation of powers. See Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995) (holding that
Congress may not deprive “judicial judgments of the conclusive
effect that they had when they were announced”). Observing that
the plaintiffs here had already “obtained a substantial prior
judgment” and now sought “further remedies . . . via
Congressional policy,” the district court characterized
Congress’s enactment of § 1605A through the NDAA as “a
deliberate effort to change the outcome in cases that have
already been fully decided before an Article III tribunal.”

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J.A. 168. The district court therefore denied the plaintiffs’
motion for default judgment.6
The plaintiffs timely appealed.
II.
The plaintiffs press two arguments on appeal. First, they
contend that res judicata does not preclude them from asserting
statutory causes of action under 28 U.S.C. § 1605A. In making
this argument, the plaintiffs take issue both with the district
court’s sua sponte consideration of the res judicata defense,
and its ultimate decision to apply that doctrine to bar their
claims. As part of this argument, they maintain that NDAA §
1083(c) does not violate the separation of powers by permitting
an unconstitutional reopening of final judgments. Second, the
plaintiffs contend that the district court erred by applying the
limitation period for a related action under NDAA § 1083(c)(3)
to their claims, which were filed directly under 28 U.S.C. §
1605A.
Although Sudan has not appeared in this case,7 the United
States government has accepted our invitation to intervene under
6 As noted above, the district court withheld ruling as to
the four new plaintiffs, including the lead plaintiff Avinesh
Kumar. On appeal, therefore, the case caption begins with
plaintiff Jennifer Clodfelter. For the sake of brevity and
clarity, we refer to the case now before us as the Kumar case.

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28 U.S.C. § 2403. It agrees with the plaintiffs’ position that
the district court erred to the extent its ruling relied on a
conclusion that the statutory provisions at issue here require
an unconstitutional reopening of final judgments. On the other
hand, the government argues that the district court did not
abuse its discretion by considering sua sponte whether res
judicata precluded the plaintiffs’ claims. The government takes
no position on the merits of the district court’s res judicata
analysis.
We begin with the plaintiffs’ argument that the district
court mistakenly applied the limitations period under NDAA §
1083(c). In addressing this argument, we also explain why we do
not reach the constitutional question. We then turn to the
issue of res judicata.
A.
A brief summary of the relevant statutory framework
provides necessary background for the plaintiffs’ argument.
When Congress amended the FSIA to create a federal private cause
of action for terrorism-related injuries and deaths, it chose as
its legislative vehicle the National Defense Authorization Act
7 Unlike in Rux, where it contested subject-matter
jurisdiction, Sudan has not appeared during any phase of the
Kumar case.

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for Fiscal Year 2008. In NDAA § 1083(a), Congress enacted that
cause of action as 28 U.S.C. § 1605A, which we have already
discussed. In NDAA § 1083(b), Congress passed various
conforming amendments, including the repeal of 28 U.S.C. §
1605(a)(7), the predecessor to § 1605A. Finally, NDAA § 1083(c)
describes in detail under what circumstances to apply the newly-
enacted cause of action retroactively to pending or decided
cases.
Contrary to the plaintiffs’ suggestion, the district court
did not dismiss their claims for failure to comply with the
statute of limitations under NDAA § 1083(c)(3). Instead, the
district court considered whether the plaintiffs’ claims
constituted a “related action” under NDAA § 1083(c)(3),
ultimately concluding that the plaintiffs, by failing to comply
with the time limitations imposed by that provision, could not
bring their new claim under NDAA § 1083(c). This conclusion--
that the plaintiffs’ complaint in Kumar v. Sudan did not arise
under NDAA § 1083(c)(3) as a related action but instead arose
directly under 28 U.S.C. § 1605A--accorded with the position the
plaintiffs took in their brief to the district court below, see
J.A. 98 (“Whether the Plaintiffs’ claims satisfy the statute of
limitations in § 1083(c)(3) is not at issue in the instant case
and a moot question. The only statute of limitations applicable
to the instant case is the ten year statute of limitations

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stated in 28 U.S.C. § 1605A(b).”), and repeat here, see
Appellant’s Br. at 31.8
It follows, the plaintiffs assert, that because they filed
a new action directly under 28 U.S.C. § 1605A, the various
provisions of NDAA § 1083(c) governing how to apply § 1605A
retroactively to pending and previous actions are simply
inapplicable to this case. We agree. By its express terms,
NDAA § 1083(c) applies to “pending cases” at the time of its
enactment in January 2008, and this case--Kumar v. Sudan, filed
in 2010--was not pending at that time. Moreover, § 1083(c) does
not compel a plaintiff who had originally filed a case under §
1605(a)(7) to convert it to a case under § 1605A: “If an action
. . . has been timely commenced under section 1605(a)(7) . . .
any other action arising out of the same act or incident may be
brought under section 1605A.” NDAA § 1083(c)(3) (emphasis
added). Instead, this provision enables a plaintiff who timely
commenced an action under now-repealed § 1605(a)(7) to bring
another action under § 1605A even if the latter action would not
otherwise satisfy the limitations set out in 28 U.S.C. §
8 The plaintiffs contend they satisfied the applicable
statute of limitations under § 1605A(b)(2) by filing their
complaint in April 2010, which was no later than ten years after
the October 12, 2000 bombing of the U.S.S. Cole. Although the
district court did not address this question, the plaintiffs’
argument appears to be correct.

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1605A(b). The plaintiffs in Kumar had no reason to invoke NDAA
§ 1083(c)(3) because their action satisfied the ten-year statute
of limitations in § 1605A. In sum, the various provisions of §
1083(c) are inapplicable here.
Because NDAA § 1083(c) does not apply to this case, we need
not address whether that provision’s instructions for how to
apply § 1605A retroactively violate the separation of powers
doctrine under the Supreme Court’s decision in Plaut v.
Spendthrift Farm. The district court’s conclusion that the law
at issue unconstitutionally “permit[ed] plaintiffs to reopen
prior judgments,” J.A. 168, can only apply to the provisions in
NDAA § 1083(c); nothing in 28 U.S.C. § 1605A can be construed to
permit the reopening of final judgments.9 Mindful that we
“refrain from passing upon the constitutionality of an act of
Congress unless obliged to do so,” Ashwander v. Tennessee Valley
Auth., 297 U.S. 288, 341 (1936) (Brandeis, J., concurring)
(citation omitted), we decline to consider the constitutionality
of NDAA § 1083 because it does not apply on the facts of this
case.
9 As the government notes, § 1605A instead simply “creates a
federal cause of action that did not previously exist, and . . .
provides remedies . . . that were not available under the
[DOHSA].” Gov’t Br. at 16.

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B.
We next consider whether the doctrine of res judicata10 bars
the plaintiffs’ claims in this case. The plaintiffs posit two
errors in the district court’s analysis. First, they argue as a
threshold matter that the district court should not have
considered sua sponte the res judicata affirmative defense.
Even if doing so was not error, the plaintiffs contend, res
judicata does not apply here because Congress in § 1605A created
a new statutory cause of action after they had filed their
complaint in 2004. We consider each in turn.
1.
Before deciding whether the district court erred by
considering the issue of res judicata, we must determine the
10 The term “res judicata” is often used to refer to both
“claim preclusion,” where a previous judgment forecloses
litigation on the basis that it was decided in the previous
case, and “issue preclusion,” which “refers to the effect of a
judgment in foreclosing relitigation of a matter that has been
litigated and decided.” Migra v. Warren City Sch. Dist. Bd. of
Educ., 465 U.S. 75, 77 n.1 (1984); see also Charles Alan Wright
et al., 18 Federal Practice & Procedure § 4402 (2d ed. 2002)
(“Although the time has not yet come when courts can be forced
into a single vocabulary, substantial progress has been made
toward a convention that the broad ‘res judicata’ phrase refers
to the distinctive effects of a judgment separately
characterized as ‘claim preclusion’ and ‘issue preclusion.’”).
We use the more familiar but less precise “res judicata”
for several reasons. The parties below and in their briefings
referred only to res judicata, as did the district court.
Congress also used this older terminology when it enacted 28
U.S.C. § 1605A through the NDAA. See NDAA § 1083(c)(2)(B).

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proper standard by which to review its sua sponte action. The
plaintiffs advocate for de novo review in their brief, and the
government’s position on the point is unclear. The government’s
brief first suggests that we review the district court’s action
de novo, see Gov’t Br. at 14, but then argues that when the
district court considered res judicata sua sponte, it “did not
abuse its discretion,” id. at 17, and similarly “acted within
its discretion,” id. at 19. When asked at oral argument which
standard of review it would have us apply, counsel for the
government seemed to advocate for abuse of discretion.11 While
we have characterized a district court’s sua sponte
consideration of a statute of limitations affirmative defense as
a question of law befitting de novo review, see Eriline Co. S.A.
v. Johnson, 440 F.3d 648, 653 (4th Cir. 2006), we have not
squarely addressed the appropriate standard of review for a
court’s sua sponte consideration of res judicata.
Although no sister circuit appears to have directly
addressed this issue either, courts have consistently described
a district court’s sua sponte consideration of a res judicata
11 Counsel for the government acknowledged that courts of
appeal do not always distinguish a district court’s decision to
consider res judicata sua sponte from its analysis of the merits
of the res judicata doctrine, which latter inquiry is reviewed
de novo. When an appellate court considers these questions
together, it is not necessarily apparent under which standard it
decides the issue of sua sponte consideration.

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defense as permissible but not required. See, e.g., Scherer v.
Equitable Life Assurance Soc’y, 347 F.3d 394, 398 n.4 (2d Cir.
2003)(“[A] court is free to raise that defense [of res judicata]
sua sponte, even if the parties have seemingly waived it. There
is, however, no obligation on the part of a court to act sua
sponte and interpose the defense if it has not been raised.”);
Holloway Constr. Co. v. U.S. Dep’t of Labor, 891 F.2d 1211, 1212
(6th Cir. 1989) (“[A] district court may invoke the doctrine of
res judicata in the interests of, inter alia, the promotion of
judicial economy.” (emphasis added)); McClain v. Apodaca, 793
F.2d 1031, 1033 (9th Cir. 1986); Boone v. Kurtz, 617 F.2d 435,
436 (5th Cir. 1980). Similarly, the Supreme Court’s holding in
Arizona v. California, 530 U.S. 392, 412 (2000), that sua sponte
consideration of a preclusion defense “might be appropriate in
special circumstances,” suggests an inherently discretionary
judgment. This language indicates that whether to consider res
judicata sua sponte amounts to a situation where “there is no
single right or wrong answer.” Harry T. Edwards & Linda A.
Elliot, Federal Standards of Review Ch. I.E (2007). Abuse of
discretion is typically the preferred standard of review in such
circumstances. Id.
Two other considerations militate in favor of reviewing the
district court’s action here for abuse of discretion. First,
the extent and nature of the previous proceedings will inform a

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district court’s decision to raise a preclusion defense on its
own initiative, and a district court judge is better positioned
than an appellate court to appreciate the particulars of the
prior case. Second, our case law recognizes res judicata as a
special category of affirmative defense: one which implicates
“important institutional interests of the courts” in addition to
the interests of the litigants. Eriline, 440 F.3d at 654. As
such, it is appropriate to distinguish the discretion vested in
a district court’s sua sponte consideration of res judicata from
the de novo review we apply to a district court’s sua sponte
consideration of a statute of limitations affirmative defense.
Id. at 653. We therefore review the district court’s sua sponte
decision to consider whether res judicata bars a plaintiff’s
claims for abuse of discretion.
2.
The plaintiffs correctly note that as a general matter, a
district court should not sua sponte consider an affirmative
defense that the defendant has the burden of raising. See
Eriline, 440 F.3d at 653-54. Res judicata is such a defense.
See Fed. R. Civ. P. 8(c). In the plaintiffs’ view, Sudan’s
failure to raise the res judicata affirmative defense should end
our consideration.
The government disagrees. It points to Arizona v.
California, in which the Supreme Court indicated that a court’s

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sua sponte consideration of a preclusion defense “might be
appropriate in special circumstances.” 530 U.S. at 412.
Following Arizona, we have permitted sua sponte consideration of
affirmative defenses where the proceedings “implicate important
judicial and public concerns not present in the circumstances of
ordinary civil litigation,” and suggested that res judicata is
among the affirmative defenses that may warrant sua sponte
consideration. Eriline, 440 F.3d at 656. The government argues
that this case presents a “special circumstance” under Arizona.
We agree.
Comity in the face of an absent foreign sovereign presents
a special circumstance permitting sua sponte consideration of a
res judicata defense. Sudan, a foreign sovereign, has not
appeared in this case. Moreover, unlike the party requesting
the Supreme Court to engage in sua sponte consideration of res
judicata in Arizona, Sudan has had neither “ample opportunity”
nor “cause” to raise a res judicata defense. See Arizona, 530
U.S. at 413. Just as “considerations of comity, federalism, and
judicial efficiency” militated in favor of a district court’s
sua sponte consideration of a statute of limitations affirmative
defense in Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002),
so here do the reciprocal foreign litigation interests of the

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United States and a concern for judicial efficiency support the
district court’s sua sponte consideration of res judicata.12
Two additional reasons reinforce this conclusion. First,
the district court here has expended significant judicial
resources on determining whether the plaintiffs are entitled to
relief under the Foreign Sovereign Immunities Act. “Where no
judicial resources have been spent on the resolution of a
question, trial courts must be cautious about raising a
preclusion bar sua sponte, thereby eroding the principle of
party presentation so basic to our system of adjudication.”
Arizona, 530 U.S. at 412-13. The plaintiffs argue that because
the district court had not until the Kumar case adjudicated
their claims under § 1605A, it has not expended any judicial
resources. But this view ignores the substantial time the
district court has spent on the “resolution of a question,”
namely, the plaintiffs’ right to relief from Sudan under the
FSIA for the terrorist attack on the U.S.S. Cole. Given that
the district court judge has presided over a trial, conducted
numerous hearings, and issued at least three opinions over
12 We note that the comity due an absent foreign sovereign
applies regardless of the nature of the allegations against that
sovereign or whether they are ultimately proven. To hold
otherwise would require a district court to assess the merits of
the res judicata analysis, and, by extension, the merits of a
plaintiff’s claims when weighing the threshold question of
whether it ought to consider res judicata sua sponte.

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almost a decade of trying to resolve this question, the district
court’s significant expenditure of judicial resources justified
its sua sponte consideration of the res judicata affirmative
defense.
Second, the FSIA’s requirement that a plaintiff seeking
default judgment “establish[] his claim or right to relief by
evidence satisfactory to the court,” 28 U.S.C. § 1608(e), also
weighs in favor of the district court’s sua sponte consideration
of res judicata in this case. As we recognized in Eriline, sua
sponte consideration of an affirmative defense can be
appropriate where a district court is “charged with the unusual
duty of independently screening initial filings, and dismissing
those actions that plainly lack merit.” 440 F.3d at 656.
Although § 1608(e) does not require a district court to tick
through various affirmative defenses simply because an absent
sovereign has failed to raise them, its command that a district
court consider whether the plaintiff has met its evidentiary
burden suggests that a district court may properly take a close
look at a plaintiff’s case. Here, the district court did not
abuse its discretion when, as part of this close look, it
considered sua sponte whether res judicata barred the
plaintiffs’ claims.

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3.
We turn finally to the district court’s application of the
res judicata doctrine, which we review de novo. Pueschel v.
United States, 369 F.3d 345, 354 (4th Cir. 2004). The
application of res judicata turns on the existence of three
factors: “(1) a final judgment on the merits in a prior suit;
(2) an identity of the cause of action in both the earlier and
the later suit; and (3) an identity of parties or their privies
in the two suits.” Id. at 354-55. There is no question either
that the plaintiffs’ earlier action in Rux culminated in a final
judgment or that the parties to each suit are identical.13 The
focus here is therefore on the second prong. The thrust of the
plaintiffs’ argument is that because they could not have
asserted a claim under 28 U.S.C § 1605A when they filed their
complaint in 2004, no “identity of the cause action” existed as
between the two suits.
As the district court recognized, we follow the
“transactional” approach when considering whether causes of
action are identical: “As long as the second suit ‘arises out of
the same transaction or series of transactions as the claim
13 As described above, there were four new plaintiffs on the
complaint in Kumar v. Sudan, but the district court did not deny
the motion for default judgment as to them, and they are not now
before us.

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resolved by the prior judgment,’ the first suit will have
preclusive effect.” Ohio Valley Envtl. Coal. v. Aracoma Coal
Co., 556 F.3d 177, 210 (4th Cir. 2009) (citation omitted).
Under this transactional approach, res judicata will bar a
“newly articulated claim[]” if it is based on the same
underlying transaction and could have been brought in the
earlier action. See Laurel Sand & Gravel, Inc. v. Wilson, 519
F.3d 156, 162 (4th Cir. 2008).
Because the underlying transaction giving rise to both Rux
and Kumar--the terrorist bombing of the U.S.S. Cole and the
resulting deaths--is unquestionably the same, we consider
whether the plaintiffs could have brought their § 1605A claim in
Rux, the earlier action. This proves to be a challenging
question. In the district court’s view, the plaintiffs’ failure
to avail themselves of the avenue provided by Congress in NDAA §
1083(c)(3) to timely file a “related action” at some point after
January 2008 means the plaintiffs could have, but did not,
assert a claim under § 1605A in Rux. The plaintiffs, by
contrast, argue that the absence of a federal cause of action at
the time they filed their complaint in 2004 should render res
judicata inapplicable. See Ripplin Shoals Land Co., LLC v. U.S.
Army Corps of Eng’rs, 440 F.3d 1038, 1042 (8th Cir. 2006)
(“[R]es judicata does not apply to claims that did not exist
when the first suit was filed.” (emphasis added)).

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Ultimately, we do not decide whether the relevant time
period for a newly articulated claim to satisfy the exception to
res judicata is the point at which the complaint is filed in the
previous case--the plaintiff’s position--or the entire pendency
of that case--the district court’s view--because we conclude
that res judicata should not apply here for three independent
reasons. First, unlike an intervening change in case law, which
almost never warrants an exception to the application of res
judicata, a change in statutory law can present the basis for a
new action. See Alvear-Velez v. Mukasey, 540 F.3d 672, 678 (7th
Cir. 2008). Although “passage of a new statute will not per se
create a grounds for a new claim,” “on rare occasions, when a
new statute provides an independent basis for a claim for relief
which did not exist at the time of the prior action, a second
action based on the new statute may be justified.” Moore’s
Federal Practice - Civil § 131.22 (2013). Such “rare occasions”
may arise where “the subject of the prior action involve[s]
substantial public policy concerns.” Id. Here, both the change
in statutory law between the plaintiffs’ initial complaint in
Rux and their complaint in Kumar and the substantial foreign and
domestic policy concerns at issue in the kinds of terrorism
cases brought under § 1605A justify an exception to the res
judicata doctrine.

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Second, one of the “core values” of the res judicata
doctrine, “to free people from the uncertain prospect of
litigation, with all its costs to emotional peace and the
ordering of future affairs,” Wright et al., supra at § 4403,
would be ill served by barring the plaintiffs’ claims in the
Kumar case. While the preclusion doctrine’s purpose of
achieving settled expectations certainly applies in ordinary
domestic civil litigation, it is “not as easily realized in
th[e] sui generis context involving civil actions against
foreign states.” Iran Terrorism Litig., 659 F. Supp. 2d at 85.
As Chief Judge Lamberth observed with respect to Iran, it
“strains credulity” to suppose that a foreign state sponsor of
terrorism “has any reliance interests or settled expectations
with respect to prior civil actions litigated against it under §
1605(a)(7),” particularly where--as here--that foreign sovereign
has failed to appear in the terrorism action filed against it.
Id.
Finally, an interpretation that reads preclusion defenses
into § 1605A and effectively shields state sponsors of terrorism
would undermine the congressional purpose for enacting § 1605A
in the first place.14 Cf. Alvear-Velez, 540 F.3d at 680
14 Although, as we concluded in Part II.A supra, NDAA §
1083(c) does not apply to this case, it is nonetheless relevant
that Congress in § 1083(c)(2)(B) specifically waived res
(Continued)

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(refusing to apply res judicata where to do so “would be
inconsistent with [the] statutory scheme and therefore would
frustrate” congressional policy decisions). Moreover, a
determination that res judicata precluded the plaintiffs’ claims
under § 1605A would be inconsistent with the statutory canon
that “remedial statutes should be liberally construed.” Peyton
v. Rowe, 391 U.S. 54, 65 (1968); Scarborough v. Atl. Coast Line
R. Ro. Co., 178 F.2d 253, 258 (4th Cir. 1949) (“Remedial
statutes should be liberally construed and should be interpreted
(when that is possible) in a manner tending to discourage
attempted evasions by wrongdoers.”). Although determining what
constitutes a “remedial statute” or a “liberal construction” may
prove challenging in some cases, see Antonin Scalia & Brian A.
Garner, Reading Law: The Interpretation of Legal Texts 364-65
(2012), this is not one of them. It is evident that Congress
enacted § 1605A to address the inability of victims of terrorism
to bring suit, under federal law, against wrongdoers, namely,
judicata and collateral estoppel defenses. Notwithstanding the
cumbersome wording and placement of this waiver within the NDAA,
we agree that it is “best understood as nothing more than a poor
choice of statutory language that is merely intended to
reinforce the understanding that Congress and the President have
accomplished a fundamental change in public policy with respect
to actions against state sponsors of terrorism.” Iran Terrorism
Litig., 659 F. Supp. 2d at 86.

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the foreign states deemed responsible for perpetrating or
otherwise supporting acts of terror.
III.
We therefore reverse the judgment of the district court,
and remand the case to allow the plaintiffs to pursue their
claims under 28 U.S.C. § 1605A.
REVERSED AND REMANDED

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DAVIS, Circuit Judge, concurring:
My good friend has written an elegant opinion in which I am most
pleased to concur. I offer these few sentences to underscore
what Judge Duncan already makes clear: sua sponte invocation of
the res judicata affirmative defense is and should be the rare
exception, not the rule, and one reserved for truly “special
circumstances.” Lest there be any doubt, in my view, the
circumstances surrounding the decade-long course of litigation
before us here provide the applicable measure of such
circumstances.

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