Fourth Circuit affirms denial of Sudan's motion to dismiss in USS Cole case

In RUX v. REPUBLIC OF SUDAN, a suit for damages arising out of the bombing of the USS Cole, the Fourth Circuit reviewed that district court' order denying Sudan's motion to dismiss for lack of subject matter jurisdiction. Sudan argued that the terrorist exception of the Foreign Sovereign Immunities Act was inapplicable in this case. Under the terrorist exception, a court reviews the complaint for allegations of (1) the provision of material support by a state sponsor of terrorism; (2) the provision of such support by an official of the state "while acting within the scope of his or her office, employment, or agency"; and (3) a causal link between the material support and damage resulting from an act of terrorism.

As for the first prong, the Court found that the allegations that Sudan supplied terrorists with "safe houses" constituted material support. The second prong was satisfied because the complaint alleged that the president of the Republic of Sudan authorized the entry into Sudan by Al-Qaeda operatives and gave Al-Qaeda special authority to avoid paying taxes and duties. Finally, the third prong was satisfied because the Complaint alleged facts sufficient to establish a reasonable connection between Sudan's support of Al-Qaeda and the damage to the USS Cole.