 United States Court of Appeals
        FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 11, 2016              Decided May 21, 2019

                       No. 14-5105

                  JAMES OWENS, ET AL.,
                      APPELLEES

                            v.

REPUBLIC OF SUDAN, MINISTRY OF EXTERNAL AFFAIRS AND
MINISTRY OF THE INTERIOR OF THE REPUBLIC OF THE SUDAN,
                     APPELLANTS



  Consolidated with 14-5106, 14-5107, 14-7124, 14-7125,
  14-7127, 14-7128, 14-7207, 16-7044, 16-7045, 16-7046,
           16-7048, 16-7049, 16-7050, 16-7052


       Appeals from the United States District Court
               for the District of Columbia
                   (No. 1:01-cv-02244)
                   (No. 1:08-cv-01377)
                   (No. 1:10-cv-00356)
                   (No. 1:12-cv-01224)
                   (No. 1:08-cv-01349)
                   (No. 1:08-cv-01361)
                   (No. 1:08-cv-01380)
                               2
    Christopher M. Curran, Nicole Erb, Claire A. DeLelle,
and Celia A. McLaughlin were on the supplemental brief for
appellants. Bruce E. Fein entered an appearance.

    Stuart H. Newberger, Clifton E. Elgarten, Aryeh S.
Portnoy, Emily Alban, John L. Murino, Matthew D. McGill,
Lochlan F. Shelfer, Steven R. Perles, Edward B. MacAllister,
John Vail, Thomas Fortune Fay, Jane Carol Norman,
Michael J. Miller, and David J. Dickens were on the
supplemental brief for appellees. Annie P. Kaplan, John D.
Aldock, and Stephen A. Saltzburg, entered appearances.

    Before: HENDERSON and ROGERS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.

    Opinion for the Court filed by Senior Circuit Judge
GINSBURG.

     GINSBURG, Senior Circuit Judge: The court originally
heard this appeal during the 2016-17 term. See 864 F.3d 751
(2017). In the resulting order we certified to the D.C. Court
of Appeals the following question regarding the plaintiffs’
intentional infliction of emotional distress (IIED) claims:
“Must a claimant alleging emotional distress arising from a
terrorist attack that killed or injured a family member have
been present at the scene of the attack in order to state a claim
for intentional infliction of emotional distress?” The D.C.
Court of Appeals has now answered the question in the
negative. See Republic of Sudan v. Owens, 194 A.3d 38, 39
(2018). Sudan nonetheless asks us not to accept the D.C.
court’s answer on the grounds that it encroaches upon the
federal government’s foreign affairs power, impermissibly
discriminates against certain foreign sovereigns, and violates
the presumption against retroactivity. For the reasons that
                               3
follow, we reject Sudan’s arguments and affirm the default
judgments with respect to the plaintiffs’ IIED claims.

                        I. Background

     The underlying facts and the history of this litigation are
recited at length in our initial opinion. 864 F.3d at 762-69.
Here we briefly summarize and highlight matters relevant to
Sudan’s present challenge.

A. Litigation History

     The cases in this consolidated appeal are among the many
lawsuits arising out of the August 1998 bombings of the U.S.
embassies in Nairobi, Kenya and Dar es Salaam, Tanzania,
which were committed by al Qaeda. Id. at 762. Beginning in
2001, victims of the bombings and their family members
brought suits against the Republic of Sudan and the Islamic
Republic of Iran for providing material support to al Qaeda.
Id. at 765-66. They were able to do so through the so-called
“terrorism exception” in the Foreign Sovereign Immunities
Act (FSIA), which covers suits against state sponsors of
terrorism for “personal injury or death” arising out of certain
acts. Id. at 762; see 28 U.S.C. § 1605A(a).

     The original terrorism exception was codified as a
subsection of 28 U.S.C. § 1605, alongside all the other
exceptions to the jurisdictional immunity of foreign states.
864 F.3d at 763. Under that scheme, a plaintiff suing a
foreign sovereign for acts of state-sponsored terrorism had to
rely solely upon state substantive law; this is known as the
“pass-through” approach. Id. at 764. In 2008 the Congress
moved the terrorism exception from § 1605 to the newly
enacted § 1605A. National Defense Authorization Act for
Fiscal Year 2008, Pub. L. No. 110-181, § 1083, 122 Stat. 3,
                               4
338-44 (2008). Unlike the other exceptions in the FSIA, the
§ 1605A terrorism exception not only withdraws sovereign
immunity and grants the federal courts jurisdiction over
qualifying cases, it also provides a substantive cause of action
against foreign sovereigns. 864 F.3d at 765; see § 1605A(c).
In addition, as we held in our earlier opinion, plaintiffs can
continue to bring pass-through state law claims through the
jurisdictional grant in § 1605A. 864 F.3d at 808; see
§ 1605A(a).

    Because Sudan failed to appear and defend against the
claims, in May 2003 the district court entered an order of
default. Over the next decade, the litigation took many twists
and turns, producing a tangle of related actions and appeals.
See 864 F.3d at 765-68. Finally, in 2014, the district court
entered final judgments in favor of the plaintiffs. The total
damages awarded came to $10.2 billion, $4.3 billion of which
were punitive damages. Id. at 767.

     In April 2015 Sudan filed Rule 60(b) motions to vacate
the default judgments; it also appealed each case, but we
stayed those appeals pending resolution of the motions to
vacate. Id. at 768. In those motions, Sudan raised both
jurisdictional and nonjurisdictional arguments, none of which
persuaded the district court. Sudan appealed the district
court’s denials of its motions to vacate, and those appeals
were consolidated with the earlier appeals, all of which were
addressed in our prior opinion. Id.

B. This Appeal

    In our 2017 decision, we affirmed the default judgments
in most respects. We exercised our discretion to reach the
merits of Sudan’s argument for invalidating the family
members’ state law claims for IIED on the ground that “D.C.
                               5
tort law requires a plaintiff to be present at the scene of a
defendant’s outrageous and extreme conduct in order to
recover for IIED,” even though it is nonjurisdictional and
would ordinarily have been forfeited by Sudan’s default. Id.
at 809-11. We did not resolve that issue, however, because
we were “genuinely uncertain whether the D.C. Court of
Appeals would apply the presence requirement in the Second
Restatement of Torts to preclude recovery for IIED by family
members absent from the scene of a terrorist bombing.” Id. at
812. Instead we certified the question to that court. Id.

     In September 2018, the D.C. Court of Appeals answered
the certified question, in a word: “No.” Sudan, 194 A.3d at
39. On its way to doing so, the court first adopted § 46(2)(a)
of the Second Restatement as the general rule for IIED claims
under D.C. law. Id. at 41. That is, it held that when
emotional distress is caused by conduct directed at a member
of a plaintiff’s family, the plaintiff must be “present at the
time” of the conduct in order to make out an IIED claim. Id.
The court then carved out an exception to the general rule for
cases brought under § 1605A, which it referred to as “the
FSIA Terrorism Exception” to the presence requirement. Id.
at 42. Sudan now urges us not to apply the exception in this
case.

                          II. Analysis

     Sudan makes three arguments why this court should not
apply the D.C. court’s ruling here: It (1) “impermissibly
encroaches upon the federal foreign affairs powers”; (2)
violates the non-discrimination principle in the FSIA, i.e., the
principle that a foreign state is liable “to the same extent as a
private individual under like circumstances”; and (3) would, if
applied in this case, increase Sudan’s liability for past
conduct, in contravention of the presumption against
                                6
retroactivity. All of these arguments depend upon the
assumption that the exception crafted by the D.C. Court of
Appeals “creates a new rule of D.C. law applicable only to
certain foreign states.” We reject this assumption, wherefor
all Sudan’s challenges fail.

A. Forfeiture

     First, we pause to consider the plaintiffs’ contention that
Sudan forfeited its arguments because it failed to raise them in
its initial appeal to this court and before the D.C. Court of
Appeals. “The rule in this circuit is that litigants must raise
their claims on their initial appeal and not in subsequent
hearings following a remand.” Eli Lilly & Co. v. Home Ins.
Co., 794 F.2d 710, 717 (D.C. Cir. 1986) (finding “appellants
waived their constitutional claims” against the Supreme Court
of Indiana’s answer to this court’s certified question). In this
case, Sudan made its arguments for the first time in its
petition for rehearing to the D.C. Court of Appeals.

     In Eli Lilly “all of the legal rulings that appellants find to
be constitutionally offensive were stated with some precision
in the District Court’s memorandum opinion.” Id. Not so
here.     As explained in greater detail below, Sudan’s
arguments are predicated upon the way in which the D.C.
Court of Appeals characterized the substantive legal rule it
crafted in its opinion, as contrasted with this court’s
formulation of the certified question.             Sudan cannot
reasonably be faulted for having failed to bring these issues to
our attention during its initial appeal; they did not arise until
the D.C. Court issued its opinion in response to the certified
question. We therefore conclude Sudan’s objections are not
forfeit and proceed to address them on the merits.
                              7
B. Merits

     Again, each of Sudan’s arguments proceeds from the
premise that the D.C. Court of Appeals crafted a new rule of
substantive law applicable only to foreign states lacking
immunity under § 1605A and not to other possible defendants
in terrorism cases. Sudan’s first argument invokes the foreign
affairs preemption doctrine, which provides that, because the
Constitution entrusts foreign policy exclusively to the
National Government, even if those subject to the state law
could comply with both it and federal law, the “imposition of
any state law create[s] a conflict with federal foreign policy
interests.” Saleh v. Titan Corp., 580 F.3d 1, 13 (D.C. Cir.
2009). Here, says Sudan, “by fashioning a new rule of law
targeting a subset of foreign states ... the D.C. Court of
Appeals ... makes an impermissible foray into the delicate
realm of foreign affairs.” Appellant’s Br. 5.

     Next, Sudan contends the D.C. court’s rule violates the
principle that foreign states lacking immunity “shall be liable
in the same manner and to the same extent as a private
individual under like circumstances,” as codified in 28 U.S.C.
§ 1606, because it “applies only to foreign states lacking
immunity under § 1605A.” Appellant’s Br. 7. In our prior
opinion, we explained that § 1606 covers claims brought
under § 1605 but not under § 1605A. 864 F.3d at 809.
Sudan’s argument is that the Congress nevertheless intended
to preserve the non-discrimination requirement for § 1605A
cases that use the pass-through approach. Finally, Sudan
argues in the alternative that, if the non-discrimination
principle “no longer applies by reason of § 1605A’s
enactment,” then the “backdoor lifting” of that limitation on
Sudan’s liability violates the presumption against
retroactivity, as set out in Landgraf v. USI Film Products, 511
U.S. 244, 265 (1994). Appellant’s Br. 12-13.
                                8

     In short, Sudan’s objections to the D.C. court’s exception
to the presence requirement all presume that D.C law treats
state actors differently from non-state actors. Because we
reject Sudan’s interpretation of the D.C. court’s holding, we
do not reach the substantive question whether it would be
impermissible for the D.C. court to single out certain foreign
sovereigns for IIED liability in terrorism cases.

   We formulated the question certified to the D.C. Court of
Appeals as follows:

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

Owens, 864 F.3d at 812. That court responded, “For the
reasons that follow, we answer this question ‘No.’” Sudan,
194 A.3d at 39.

     The D.C. court went on, however, to restate the certified
question and to describe its holding with specific reference to
the FSIA. The court restated the certified question as follows:
“The D.C. Circuit has asked us to determine whether the
caveat [to § 46] applies to the scenario presented here — an
IIED case where the defendant is a state sponsor of terrorism
denied sovereign immunity by the FSIA.” Id. at 43. Then the
court made clear that its opinion was addressed to “IIED cases
where the jurisdictional elements of § 1605A are satisfied and
the plaintiff’s severe distress arises from a terrorist attack that
killed or injured a member of his or her immediate family.”
Id. at 45; see also id. at 44 (“Our holding excuses the presence
                               9
requirement only when plaintiffs demonstrate that [the]
predicates [to § 1605A] are met”).

     The D.C. Court of Appeals has previously asserted its
“latitude ... to consider nondesignated questions and to
reformulate, if necessary, the questions as certified.” District
of Columbia v. Beretta, 872 A.2d 633, 641 (D.C. 2005)
(cleaned up). Several circuits have, for their part, allowed as
how their “phrasing of the [certified] question is not intended
to restrict the scope or inquiry by” the state supreme court to
which it is directed. Tillman v. R.J. Reynolds Tobacco, 254
F.3d 1302, 1308 (11th Cir. 2001); see also Mineral County v.
Walker River Irrigation Dist., 900 F.3d 1029, 1034 (9th Cir.
2018); Penguin Group, Inc., v. American Buddha, 640 F.3d
497, 499-500 (2d Cir. 2011); Lamar Homes v. Mid-Continent
Casualty Co., 428 F.3d 193, 201 (5th Cir. 2005). Here, the
D.C. court narrowed its inquiry to cases brought under
§ 1605A of the FSIA, even though our certified question
asked more generally about a “terrorism exception.”

     Nevertheless, we do not construe the D.C. court’s opinion
as creating a disparity between state and non-state actors. We
agree with the plaintiffs that the D.C. court was simply
“reasoning by reference to the facts of the case before it.”
Because the court was not faced with a terrorism case
involving a non-state actor, it was not necessary to decide
whether the exception would apply there. We see no reason
to anticipate that, in an appropriate case, the D.C. court would
refuse to extend the exception to a private actor, such as al
Qaeda.

     Indeed, as the appellees point out, the D.C. court’s
reasoning as to the purposes of the presence requirement “was
not limited to cases involving foreign sovereigns.” The court
identified three objectives of the presence requirement: to (1)
                              10
“shield defendants from unwarranted liability”; (2) “ensure
that compensation is awarded only to victims with genuine
claims of severe emotional distress”; and (3) “provide a
judicially manageable standard that protects courts from a
flood of IIED claims.” 194 A.3d at 43 (cleaned up). The
court then concluded the first and second objectives are
inapplicable “in this special context” for reasons true of “acts
of terrorism” more generally. Id. at 42. The court explained
that “acts of terrorism are, by their very nature, designed to
create maximum emotional impact, particularly on third
parties” and “the risk of trivial or feigned claims is
exceedingly low when the anguish derives from a terrorist
attack.” Id. at 43. Hence, although the D.C. court’s opinion
addresses only FSIA cases, its rationale invites application of
the exception to terrorism cases against non-state actors.

     Under these circumstances, we decline Sudan’s invitation
to construe the D.C. Court of Appeals’s rule as singling out
certain foreign sovereigns.

                       III. Conclusion

    We therefore affirm the district court’s judgments as to
the plaintiffs’ IIED claims to the extent they are not
inconsistent with our initial panel opinion at 864 F.3d 751
(2017).
                                                 So ordered.
