El-Shifa Pharmaceutical Industries Company and Salah El Din Ahmed Mohammed Idris v. United States of America

Court	United States Court of Appeals, District of Columbia, United States
Case number	07-514
Decision title	Order
Decision date	3 August 2009
Parties	El-Shifa Pharmaceutical Industries Company Salah El Din Ahmed Mohammed Idris United States of America
Other names	El-Shifa VI
Categories	Terrorism
Keywords	en banc re-hearing, motion to dismiss, political question doctrine, Terrorism
Links	Order
Other countries involved	Sudan

Summary

In August 1998, the US Embassies in Kenya and Tanzania were bombed by terrorists loyal to Osama bin Laden. In retaliation, President Clinton ordered a missile strike on the El-Shaifa pharmaceutical plant in Khartoum, Sudan, arguing that it was a base for terrorism. Later, it was proven that the plan had no ties to terrorists. Therefore, El-Shifa Pharmaceutical Industries brought complaints against the United States in the US Court of Federal Claims.

In November 2005, the District Court found that El-Shifa Pharmaceutical Industries raised a non-justiciable political question (which foresees that courts have no authority to hear or adjudge on matters that raise political, rather than legal, questions) in asking the Court to adjudge on the President’s powers to designate as enemy property the private property of the chemical plant in Sudan.

On 27 March 2009, the Court of Appeals affirmed the decision of the District Court, holding that the case raised a political question, and therefore barring the court from hearing the matter.

El-Shifa Pharmaceutical Industries filed a petition to the Court of Appeals asking for the case to be re-heard by the court sitting en banc (where the case is heard before all judges of the court). On 3 August 2009, the Court of Appeals granted their petition, ordering that the case be re-heard by the court sitting en banc and vacating the earlier judgment of 27 March 2009.

Procedural history

A lawsuit filed with the US Court of Federal Claims for $50 million in losses was dismissed in March 2003 as non-justiciable based on the US ‘political question doctrine’.

On 11 August 2004, the Federal Circuit Court of Appeals affirmed the lower court’s decision.

Another claim was filed seeking damages for negligence and trespass. On 29 November 2005, the District Court of Colombia granted the government’s motion to dismiss the claim based on lack of subject matter jurisdiction. The Court found that sovereign immunity barred the claims.

The plaintiff’s motion to alter the judgment regarding their equitable relief was later denied as well.

On 27 March 2009, the Court of Appeals held that “courts are not a forum for second-guessing the merits of foreign policy and national security decisions” (p. 8), and upheld the District Court’s decision.

Related developments

On 8 June 2010, the US Court of Appeal (sitting en banc) affirmed the decision of the District Court once again.

In January 2011, the US Supreme Court refused to reconsider the dismissal. See 'Court Won’t Reconsider Sudan Lawsuit Dismissal', CBS News, 18 January 2011.

Legally relevant facts

In August 1998, the US Embassies in Kenya and Tanzania were bombed by terrorists loyal to Osama bin Laden. In retaliation, President Clinton ordered a missile strike on the El-Shifa pharmaceutical plant in Khartoum, Sudan. The attack was justified by the claim that the plant was a base for terrorism. US officials also claimed that the plant was used in the manufacture of chemical weapons. The plaintiffs denied the accusations. It was later proved that the plant had no ties to bin Laden and that only medical products were manufactured at the plant. Having learnt that their initial justifications were false, officials in the Clinton Administration offered new explanations, claiming that the plant owners supported terrorism.

After the Court of Appeals dismissed the petitioners’ claims on the grounds that they raise a political question and, therefore, cannot be heard by the court, the petitioners requested that the case be re-heard by the Court of Appeals sitting en banc.

Core legal questions

Should the case be re-heard by the Court of Appeals sitting en banc?

Court's holding and analysis

The Court of Appeals found that “[u]pon consideration of appellants’ petition for rehearing en banc … it is ordered that the petition be granted…It is further ordered that the court’s March 27, 2009, 559 F.3d 578, judgment be vacated” (p. 1).