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RICHMOND, VA. — A lawyer for families of the 17 sailors killed in the 2000 bombing of the Cole urged a federal appeals court to reinstate a $282.5 million lawsuit against Sudan on Tuesday.
Andrew Hall told a three-judge panel of the 4th U.S. Circuit Court of Appeals that a judge erred when he ruled that the families could not seek damages for emotional distress because they had won a nearly $8 million judgment for compensatory damages in an earlier lawsuit. Interest has increased that award to a little more than $14 million, Hall said.
U.S. District Judge Robert Doumar ruled in 2001 that the plaintiffs could not sue twice for the same terrorist attack.
The families are seeking the additional damages under a law passed by Congress in 2008, while the first lawsuit was still on appeal. The Justice for Victims of State Sponsored Terrorism Act allows for retroactive punitive-damages awards against nations that sponsor terrorism.
“There are brand new claims that came into the law,” Hall told the appeals court. “Our cause of action was a new cause of action that didn’t exist prior to 2008.”
Judge Andre Davis seemed sympathetic to Hall’s position, noting that Sudan refused to participate in the case after unsuccessfully challenging the district court’s jurisdiction. Doumar decided on his own, with no input from Sudan, that the nation could not be sued a second time for the Cole attack.
“They said ‘I’m out of here’ and they were never to be seen again,” Davis said. “Then you have a district judge raising affirmative defenses for them.”
Sudan was not represented at the hearing.
“Sudan doesn’t care about this case, Davis said.
The U.S. Justice Department said in court papers that because of its “interest in reciprocal treatment abroad,” it supported Doumar’s authority to decide on his own that the second lawsuit was precluded. However, the government urged the court to reject a constitutional finding by Doumar — that the 2008 law violated the separation of powers doctrine.
The appeals court usually takes several weeks to rule.
Al-Qaida bombers steered an explosives-laden boat into the USS Cole, a guided-missile destroyer, on Oct. 12, 2000, while it was stopped to refuel in a port in Yemen. The attack also injured 42 other sailors and tore a massive hole into the side of the ship. The Norfolk-based ship was recommissioned in 2002.