                             UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                             No. 09-2359


OLIVIA RUX, individually and as next friend for I.M.O., a
minor; JAMIE OWENS, individually and as next friend for
I.M.O., a minor; SHARLA COSTELOW, individually and as next
friend for E.C. and B.C., minors; NOVELLA WIGGINS,
individually and as next friend for J.R.M., Jr., a minor;
LORRIE D. TRIPLETT, individually and as next friend for
Andrea Triplett and Savannah Triplett; JENNIFER CLODFELTER,
individually and as next friend for Noah Clodfelter; KENYON
EMBRY, individually and as next friend for Capri Dumar;
RONALD W. FRANCIS; JACQUELINE SAUNDERS, individually and as
next friend for I.S. and J.S., minors; SANDRA FRANCIS;
ROGELO SANTIAGO; SIMEONA SANTIAGO; SARAH GUANA ESQUIVEL;
JESSE NIETO; THOMAS WIBBERLY; PATRICIA WIBBERLY; THEODIS
TRIPLETT; WAYNE TRIPLETT; REED TRIPLETT; GARY SWENCHONIS,
SR.; DEBORAH SWENCHONIS; SHALALA SWENCHONIS; KATE BROWN;
SEAN WALSH; KEVIN ROY; LOU GUNN; MONA GUNN; JAMAL GUNN;
JASON GUNN; ANTON J. GUNN; LEROY PARLETT; ETTA PARLETT,
individually and as next friend for H.P., a minor; KERA
MILLER;   MATTHEW    PARLETT;    JOHN    CLODFELTER;   GLORIA
CLODFELTER;   JOSEPH   CLODFELTER;    TONI   WIBBERLY;  DIANE
MCDANIELS; TERESA SMITH; GEORGE COSTELOW; DOROTHY COSTELOW;
FREDERICA MCDANIELS-BESS; DAVID FRANCIS; KEVIN TRIPLETT;
FREDDIE TRIPLETT; SAVANNAH TRIPLETT,

               Plaintiffs – Appellants,

          v.

REPUBLIC OF THE 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. (2:04-cv-00428-RGD-TEM)


Argued:   October 26, 2010             Decided:   February 3, 2011


Before DUNCAN, AGEE, and DAVIS, Circuit Judges.


Affirmed in part and dismissed in part by unpublished order.
Judge Duncan directed entry of the order with the concurrences
of Judge Agee and Judge Davis.


ARGUED: Andrew C. Hall, HALL, LAMB & HALL, PA, Miami, Florida,
for Appellants.     Lewis Yelin, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Intervenor.   ON BRIEF: James D.
Cooper-Hill, Rockport, Texas; Nelson M. Jones, III, Houston,
Texas; Roarke Maxwell, HALL, LAMB & HALL, PA, Miami, Florida;
Timothy P. Sceviour, ABRONS, FASANARO & SCEVIOUR, Norfolk,
Virginia, for Appellants.       Tony West, Assistant Attorney
General, Douglas N. Letter, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Neil H. MacBride, United States Attorney,
Alexandria, Virginia, for Intervenor.




                                2
                                       ORDER



     This   appeal      arises   from       the    district         court’s    denial    of

Appellants’ motion for leave to supplement their complaint in an

action    brought    against     the    Republic         of    Sudan        (“Sudan”)    by

relatives of the American sailors killed in the October 2000

terrorist bombing of the U.S.S. Cole.                    On November 3, 2010, we

issued an Order for Supplemental Briefing directing parties to

address whether any of the issues pending before this Court on

appeal are rendered moot by the Appellants’ filing of a new,

related   action    pursuant     to    28       U.S.C.   § 1605A       in    the    Eastern

District of Virginia.            Having reviewed those submissions, we

find that Appellants’ constitutional challenge to § 1083(c)(2)

of the National Defense Authorization Act (“NDAA”) for Fiscal

Year 2008, Pub. L. No. 110-181, 122 Stat. 3, 342-43, Section

1083(a)(1) (codified at 28 U.S.C. § 1605A (Supp. II 2008)), is

no longer viable given the filing of their new action.                             Further,

in light of Appellants’ argument that their state common law

claims    have   been    preempted,     we        affirm      the    district       court’s

dismissal of those claims.




                                            3
                                        I.

                                        A.

     The facts giving rise to this action are set forth more

fully in our previous opinion, Rux v. Republic of Sudan, 461

F.3d 461 (4th Cir. 2006) (“Rux I”).              We briefly summarize those

facts and the procedural history pertinent to the instant order.

This action arises out of the October 12, 2000, bombing of the

U.S.S. Cole in the Port of Aden, Yemen.                  Seventeen U.S. Navy

sailors   were    killed    in   the    attack   that    day,    and     fifty-nine

surviving family members (Appellants here) brought this action

against Sudan to recover for damages resulting from the sailors’

deaths.        Appellants     alleged     that   the     Al     Qaeda     terrorist

organization planned and executed the U.S.S. Cole bombing, and

that Sudan provided material support to Al Qaeda in the years

leading up to the attack.

     After     initially     defaulting,     Sudan      appeared        and   sought

dismissal on various grounds, including sovereign immunity.                      We

affirmed the district court’s determination that Appellants had

alleged   sufficient       jurisdictional    facts      to    bring     their   case

within the Foreign Sovereign Immunities Act (“FSIA”) terrorism

exception. 1     Rux I, 461 F.3d at 474.           We declined to exercise


     1
       Under the FSIA, foreign states are generally immune from
civil suits in the United States, and district courts lack
subject matter jurisdiction over civil suits against foreign
(Continued)
                                         4
pendent appellate jurisdiction and dismissed the remainder of

Sudan’s appeal.        Id. at 476-77.             On remand to the district

court, Sudan made its final appearance in this case by informing

the court it would “not defend or otherwise participate in this

proceeding on the merits.”          J.A. 60 (quoting letter from Sudan).

       Appellants asserted claims under the Death on the High Seas

Act    (“DOHSA”),   state     law   tort       claims,      and   maritime   wrongful

death    claims.      After    considering         Appellants’       evidence,      the

district court determined that “Sudan’s material support to Al

Qaeda led to the murders of the seventeen American servicemen

and women.”     J.A. 79; see also 28 U.S.C. § 1608(e) (permitting

entry of a default judgment against a foreign state only after

“the    claimant    establishes     his        claim   or    right   to    relief    by

evidence    satisfactory       to    the        court”).          Over    Appellants’

objection, however, the district court found that DOHSA provided




states, unless the suit involves claims coming within an
exception to foreign sovereign immunity. See 28 U.S.C. §§ 1330,
1604-07.     One such exception was created by 28 U.S.C.
§ 1605(a)(7), repealed by NDAA § 1083(b)(1)(A)(iii), which
stripped a foreign state’s immunity from suit in the event of
certain acts of state-sponsored terrorism, provided the state
had been designated by the Secretary of State as a state sponsor
of terrorism.     When a state is subject to suit under an
exception to immunity, “the foreign state shall be liable in the
same manner and to the same extent as a private individual under
like circumstances.” Id. § 1606.



                                           5
the exclusive remedy for Appellants’ claims. 2                 J.A. 96-101.         As

the district court explained, the Supreme Court has held that

     “[b]y authorizing only certain surviving relatives to
     recover damages, and by limiting damages to the
     pecuniary   losses  sustained  by   those  relatives,
     Congress provided the exclusive recovery for deaths
     that occur on the high seas” and therefore “has
     precluded the judiciary from enlarging either the
     class of beneficiaries or the recoverable damages”
     under DOHSA.

J.A. 98 (quoting Dooley v. Korean Air Lines Co., Ltd., 524 U.S.

116, 123 (1998)).             Accordingly, the district court dismissed

Appellants’ maritime and state law claims on preemption grounds.

     On    July    25,    2007,    the    district    court    entered      a   final

judgment,   awarding      eligible       plaintiffs   a   total      of   $7,956,344

plus post-judgment interest, under DOHSA.                   See Rux v. Republic

of Sudan, 495 F. Supp. 2d 541, 567-69 (E.D. Va. 2007) (“Rux

II”); see also 46 U.S.C. § 30302 (limiting the class of eligible

DOHSA    plaintiffs      to   a   “decedent’s   spouse,       parent,     child,    or

dependent relative”).

     Appellants       timely      appealed    from     the     district     court’s

dismissal of their maritime and state law claims.                         While the

appeal    was     pending,     Congress    amended    the     FSIA    through      its




     2
       DOHSA creates a right of action for death “occurring on
the high seas beyond 3 nautical miles from the shore of the
United States.” 46 U.S.C. § 30302.



                                          6
passage of the NDAA, 3 which created a new federal right of action

for injuries caused by acts of state-sponsored terrorism.             See

28 U.S.C. § 1605A.      The new right of action created by § 1605A

provides for additional remedies not allowed under DOHSA, such

as “economic damages, solatium, pain and suffering, and punitive

damages.”    Id. at 1605A(c).

     While § 1605A allows plaintiffs to invoke the new right of

action with regards to certain “pending” cases, the provision is

not automatically retroactive.        Kirschenbaum v. Islamic Republic

of Iran, 572 F. Supp. 2d 200, 203 n.1 (D.D.C. 2008).              Section

1083(c)     of   the   NDAA   governs    the   amendment’s    retroactive

application.      Pursuant    to   § 1083(c)(2)   (“Prior    Actions”),   a

plaintiff whose action was pending before the courts when the

NDAA became law is given sixty days within which to “refile” his

suit based upon the new cause of action, provided he meets all


     3
       Congress passed the NDAA at least in part to overturn the
D.C. Circuit’s decision in Cicippio-Puleo v. Islamic Republic of
Iran, 353 F.3d 1024 (D.C. Cir. 2004).    See 154 Cong. Rec. S44,
S55 (daily ed. Jan. 22, 2008) (statement of Sen. Lautenberg).
Cicippio-Puleo held that while § 1605(a)(7) created jurisdiction
in the federal courts, neither it, nor the Flatow Act, nor the
two in conjunction, created a private right of action against a
foreign government.     353 F.3d at 1033; see also Foreign
Operations, Export Financing, and Related Appropriations Act
(the “Flatow Act”) of 1997, Pub. L. No. 104-208, § 589, 110
Stat. 3009, 3009-172 (1996) (creating a right of action for
terrorism-related injuries against an “official, employee, or
agent of a foreign state designated as a state sponsor of
terrorism”).



                                     7
the   requirements.           Under   § 1083(c)(3)      (“Related     Actions”),      a

plaintiff who had “timely commenced” a “related action” under

§ 1605(a)(7) may bring a new action “arising out of the same act

or incident,” provided it is commenced no later than sixty days

after either the enactment of the NDAA or the entry of judgment

in the original suit.           Simon v. Republic of Iraq, 529 F.3d 1187

(D.C. Cir. 2008), rev’d on other grounds sub nom. Republic of

Iraq v. Beaty, 129 S. Ct. 2183 (2009) (interpreting new NDAA

provisions).

      Before   reaching        the    merits    of   Appellants’      claims,      this

Court    granted    Appellants’        motion   to   remand     the   case    to    the

district    court   for       consideration     of   whether    Appellants      could

rely on the new right of action under § 1605A.                          See Rux v.

Republic of Sudan, No. 07-1835 (4th Cir. order dated July 14,

2009).     While the case was before the district court on remand,

Appellants     filed      a    motion    for    leave      to   supplement      their

complaint, pursuant to § 1083(c)(2), in order to add claims for

non-pecuniary loss under the new right of action.                       On December

3, 2009, the district court entered an order denying Appellants’

motion.      Appellants       timely    appealed     the   order,     which   is    the

subject of the current appeal.




                                          8
                                         B.

       Prior      to   this   Court’s   Order     for   Supplemental     Briefing,

Appellants advanced two arguments on appeal. 4               First, they argued

that § 1083(c)(2) of the NDAA violates their equal protection

rights.      Appellants conceded that they do not meet the statutory

requirements of § 1083(c)(2), “literally applied.”                    Appellants’

Br. at 36.         They nonetheless argued that the requirements set

out in § 1083(c)(2) create “an irrational class distinction that

impermissibly          discriminates    against    Appellants    by    precluding

them       from    bringing     suit    pursuant        to   § 1605A,”     thereby

“violat[ing] the guarantee of equal protection embodied in the

Fifth Amendment.”         Appellants’ Br. at 37, 39. 5

       Second, Appellants argued that the district court erred in

holding that “DOHSA is Plaintiff’s exclusive cause of action,”

       4
       The issues raised on appeal are relevant to this order
only insofar as they inform the Court’s analysis of the
arguments raised in the parties’ subsequently-filed supplemental
briefs, which are discussed in Section II.
       5
        Appellants   argued  that  the  conversion  provision’s
requirement of prior reliance on the old terrorism exception
creates three classes of plaintiffs:   (1) plaintiffs who have
not filed an action under the prior terrorism exception; (2)
plaintiffs who filed an action under the prior terrorism
exception and relied on the exception as creating a right of
action, before the D.C. Circuit held in Cicippio-Puleo that the
old exception did not provide a right of action; and (3)
plaintiffs who filed an action under the prior terrorism
exception after Cicippio-Puleo and who did not rely on the
exception for their right of action.         Appellants placed
themselves in the third class.



                                          9
J.A. 254, preempting their state law claims.                               They contended

that DOHSA does not prevent them from bringing state law tort

claims       for     their     own   non-pecuniary        injuries        caused     by    the

wrongful death of their family members.

        Although Sudan has chosen to no longer defend or otherwise

participate in this action, Appellants were not unopposed on

appeal.       The government, as intervenor-appellee under 28 U.S.C.

§ 2403 and as amicus curiae under 28 U.S.C. § 517 and Federal

Rule    of    Appellate        Procedure    29(a),      filed    an      appellate        brief

defending          the   constitutionality         of    § 1083,      as    well     as    the

district        court’s        ruling    that      DOHSA      provides           Appellants’

exclusive remedy, foreclosing any state law claims.

        After the government filed its brief with the court, but

before oral argument, Appellants filed a new, related action

against Sudan under 28 U.S.C. § 1605A(c).                           See Kumar v. The

Republic of Sudan, No. 10-cv-171 (E.D. Va. filed Apr. 15, 2010).

The new action was brought by the same fifty-nine plaintiffs who

are     named       in   the     case   sub      judice       (plus       two     additional

plaintiffs, Avinesh Kumar and Hugh Palmer, who are not parties

to the action before this court).                   See Transcript of Record at

4, Kumar v. Republic of Sudan, No. 10-cv-171                        (E.D. Va. Sept. 9,

2010)     (No.       25).        Additionally,          the   new        action     “seek[s]

equivalent relief.”             Appellants’ Supp. Br. at 13.                     However, in

their    new       action,     Appellants     do   not    rely      on     the    conversion

                                            10
provision    of     § 1083(c)(2).             In   fact,      Appellants      expressly

disavow any reliance on § 1083(c)(2) as a basis for their suit.

See   Plaintiffs’       Br.   in    Response       to   the     Court’s     Order   Dated

August 3, 2010 at 9, 10, Kumar, No. 2:10cv171 (E.D. Va. Aug. 23,

2010), ECF No. 21 (asserting that they relied directly on 28

U.S.C. § 1605A to file their claim and did not seek “to have an

earlier    action       deemed     to   be    filed     under    28   U.S.C.    § 1605A

pursuant to NDAA § 1083(c)[(2)](A)”). 6

      The case sub judice was argued on October 26, 2010.                              At

argument, the government suggested that this appeal may be moot

as a result of Appellants’ new action.                    We ordered supplemental

briefing    on    the    issue     of   mootness,       directing     the    parties   to

address “whether any or all of the issues pending before this

Court are rendered moot by the appellants’ filing of [Kumar v.

Republic of Sudan] pursuant to 28 U.S.C. § 1605A.”                           Order, No.

09-2359 (Nov. 3, 2010), ECF No. 38.



                                             II.

      Appellants maintain in their supplemental brief that their

constitutional challenge to § 1083(c)(2) continues to present a


      6
       The District Court directed Plaintiffs to advise this
Court of the new action and to provide this Court with the
transcript of the August 24, 2010 hearing related to issues
raised in the District Court’s briefing order.



                                             11
live controversy.            They also argue, for the first time, that

their state common law claims have been preempted by § 1605A.

Proceeding      from       that    assumption,         Appellants         reason       that       the

preemption of their state law claims moots their appeal from the

district     court’s       dismissal      of     those      claims,       and       that   we     are

therefore     without       jurisdiction         to    entertain         them.         Moreover,

they    argue       “the      district         court’s       opinion          is      manifestly

incorrect” and should be vacated.                     Appellants’ Supp. Br. at 15.

Appellants’ position is untenable on all counts.

       Appellants’         constitutional           claim      is        premised          on     the

contention      that        § 1083(c)(2)’s            requirements            for     conversion

violate Appellants’ equal protection rights “by precluding them

from seeking relief pursuant to § 1605A.”                            Appellants’ Br. at

37.     Appellants now insist in their new, related action, that

they need not rely on § 1083(c)(2) to seek relief pursuant to

§ 1605A,     because        they    have    a       valid    claim,        irrespective           of

§ 1083(c)(2), which they have brought directly under § 1605A.

       Although      parties       are     free       to    make      arguments            in    the

alternative,        here    Appellants      have       effectively         renounced            their

earlier position in a manner that requires us to entertain an

abstract legal question.                  See Md. Highways Contractors Ass’n,

Inc. v. Maryland, 933 F.2d 1246, 1249 (4th Cir. 1991) (“A case

is    moot   when    it     has    lost    its      character       as    a     present,         live

controversy of the kind that must exist if we are to avoid

                                               12
advisory opinions on abstract propositions of law.” (internal

quotations        omitted)).          This    is    not    a    traditional       case        of

mootness, abandonment, or waiver. 7                      Its distinctiveness stems

from Appellants’ unusual decision to initiate a suit anchored in

an expressly contrary position while this matter was pending on

appeal.      By bringing a new action which they previously claimed

was   precluded        by     § 1083(c)(2),          and       expressly        disclaiming

reliance on this provision, Appellants have, in effect, caused

the   mootness        of      their     constitutional           challenge        to     that

provision. 8       See U.S. Bancorp Mort. Co. v. Bonner Mall P’ship,

513   U.S.     18,    24-25    (1994)        (dismissing       action      as    moot    upon

finding    that      the    party     seeking      review,      as    opposed     to    being

“frustrated by the vagaries of circumstance,” had “caused the

mootness     by    voluntary        action”).        Appellants’        representations

before us only reinforce this conclusion.                        They have explicitly

recognized     the    possibility        of    mootness        when    “parties        lack    a

legally    cognizable         interest”       in   the     appeal     of   the    district

      7
       We nevertheless characterize the issue as mootness, for
the sake of convenience.
      8
       In ruling on this issue, we are proceeding under the
assumption that the district court will give full and fair
consideration to Appellants' arguments regarding the existence
of a live controversy in their new, related action filed
directly under § 1605A in Kumar v. The Republic of Sudan, No.
10-cv-171 (E.D. Va. filed Apr. 15, 2010), and will exercise an
appropriate measure of restraint with regards to the well-
established principle of constitutional avoidance.



                                              13
court’s judgment.             Appellants’ Supp. Br. at 5 (quoting United

States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008)).

      Appellants argue that if this Court finds that the instant

appeal    has    been      rendered      moot,       the    district    court’s     opinion

should be vacated.             The relief of vacatur, however, is not a

foregone    conclusion--it           is    an        equitable     remedy      informed    by

whether parties played a role in causing the mootness.                                    See,

e.g., Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 117-19

(4th Cir. 2000).             Under these circumstances, because Appellants

by their voluntary actions have caused the mootness, we do not

order vacatur of the district court’s judgment in this case.

See   Bancorp,       513     U.S.   at    24,    26    (observing       that    whether    an

opinion    should       be    vacated      on    the       basis   of   mootness     is    an

equitable question, requiring the court to consider “the nature

and character of the conditions which have caused the case to

become moot”) (internal quotations omitted); see also Tafas v.

Kappos, 586 F.3d 1369, 1371 (Fed. Cir. 2009) (denying vacatur of

the district court’s judgment, because “when a party procures

the conditions that lead to a case becoming moot, that party

should not be able to obtain an order vacating the lower court

decision that was adverse to that party”) (citing Bancorp, 513

U.S. at 25); Fleming & Assocs. v. Newby & Tittle, 529 F.3d 631,

638 n.3 (5th Cir. 2008) (“Equitable vacatur generally is only

available       in   cases     where      the    party      seeking     relief    from    the

                                                14
judgment     below   did   not    cause    the   mootness   by    voluntary

action.”).      Instead,   we    simply   dismiss   Appellants’   claim   as

moot.

     Finally, in light of Appellants’ argument that their state

law claims have been preempted by § 1605A, we assume, without

deciding, the preemption of those claims and thus affirm the

district court’s dismissal of them.

     Accordingly,

     IT IS ORDERED THAT:

     (1) Appellants’ claim related to § 1083(c)(2) of the NDAA

be dismissed.

     (2) The district court’s dismissal of Appellants’ state law

claims be affirmed.

                                                     AFFIRMED IN PART AND
                                                        DISMISSED IN PART




                                     15
