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Navy Families Can’t Sue Twice for Cole Bombing

(CN) - Families who already won, and collected, nearly $8 million from the Sudan for its role in the 2000 al-Qaida bombing of the USS Cole that killed 17 sailors cannot sue again to get punitive damages, a federal judge ruled.

On the morning of Oct. 12, 2000, the U.S. Navy destroyer USS Cole entered the mouth of the Aden harbor in Yemen to pause for refueling.

About 40 minutes later, while some of the crew were sitting down for lunch, one sailor noticed a small, white boat with fire-red trim heading "fast and hard" toward the ship from the direction of the city. The boat's two-man crew smiled and waved as it slowed and pulled up parallel to the Cole.

Seconds later, the boat exploded, ripping a 32-by-36-foot hole in the port side of the Cole that flooded the main engine room, auxiliary machine room and the dry-provisions storeroom. Several other chambers were destroyed. The explosion and its aftereffects killed 17 American Navy sailors. Dozens more sustained lacerations, broken bones, or serious burns to their faces, hands and arms.

In July 2004, 59 surviving family members of the killed sailors, led by Olivia Rux, filed suit against the Republic of Sudan for knowingly and willfully providing Osama bin Laden and al-Qaida with material support for their attack on the Cole. At the end of the March 2007 trial, the families won more than $7.9 million in "economic losses." U.S. District Judge Robert Doumar noted, however, that U.S. law does not offer a remedy for the survivors' psychological and emotional losses.

Soon after the families appealed, Congress amended the relevant statute to create the sought-after cause of action. The National Defense Authorization Act for 2008 allows plaintiffs suing state sponsors of terrorism to seek punitive damages and recovery for pain and suffering.

As the families tried to reopen their case and amend their complaint in light of the new law, Sudan objected to the court's subject-matter jurisdiction and refused to participate further.

This maneuver ultimately did not pan out for the families, so they filed a new complaint in April 2010. The 59 plaintiffs from the original action are all accounted for in this case, with two new surviving relatives, Avinesh Kumar and Hugh Palmer. Six months later, Jack Swenson and Ollesha Smith Jean filed a civil complaint arising from the same facts, and the court consolidated the two matters in May 2011.

Although Sudan received a copy of the plaintiffs' filings last year, it still had not responded or entered an appearance as of September 2011.

The judge refused to grant the families summary judgment, however, because the new complaint was filed too long after the original to be a "related action," and because most of the plaintiffs cannot bring suit in a matter to which there has already been a final judgment.

"Fifty-nine of the plaintiffs in this case not only obtained a substantial prior judgment in their favor, they also sought and obtained certification of said judgment from this court," Doumar wrote. "Each plaintiff thereafter collected the judgment in full from the defendant. Nonetheless, plaintiffs now seek further remedies against the defendant, via congressional policy. To be sure, Congress can alter the prospective effect of judicial rulings in a variety of ways, including by enacting legislation creating new causes of action. But where, as here, the newly-enacted legislation is a deliberate effort to change the outcome in cases that have already been fully decided before an Article III tribunal, Congress transgresses the important limits imposed by our Constitution's separation of powers."

Doumar entered final judgment against the 59 duplicative plaintiffs but withheld ruling as to the four new plaintiffs, Kumar, Palmer, Swenson and Smith Jean. Sincce the 59 plaintiffs may still appeal, Doumar issued a 30-day stay on the evidentiary hearing he called for the four other plaintiffs.

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