Court Refuses To Permit Plaintiffs To Pursue The 'New' Cause Of Action under Section 1605A Of The FSIA

Avinesh Kumar v. Republic of Sudan, Civil Action no. 2:10cv171 (E.D. Vir. 2011), presents an interesting case of judicial resistance to the resurrection of prior claims in the context of an international litigation, even where Congress has sought to enlarge plaintiffs' rights arguably to embrace such resuscitation.

In earlier litigation, the Court addressed the terrorist bombing of the American navy vessel U.S.S. Cole on October 12, 2000. The Court found that "Sudan had actively provided Al Queda with material support", that the support was "critical" to carrying out the attack, and that the material support "led to the murders of the seventeen American servicemen and women". The Court also entered judgment in favor of the plaintiffs for $7,956,344.

While an appeal was pending from the judgment (which also dismissed claims for intentional infliction of emotional distress), Congress enacted Section 1605A of the Foreign Sovereign Immunities Act, which "creates...