Mark vs Sudan

CASE SUMMARY

CHAVA RACHEL MARK, et al. v. REPUBLIC OF THE SUDAN Case No. 20-cv-3022 TNM (D.D.C. 2020)

  • The wife worked to stop the bleeding from Tehila’s wound, while the man called an ambulance. He hugged Pedaya and gave him water as they both tried to keep the children calm until an ambulance arrived. 
  • Sudan also enabled Hamas to manufacture and stockpile weapons in its territory, and assisted and facilitated the transportation of weapons
  • The Mark family, with Dr. Engelberg’s help, sued Sudan before the U.S and Sudan entered into the CSA and are unfairly excluded. 

On the day of the incident, the Rabbi and Mrs. Mark and two of their ten children planned to visit Rabbi Mark’s mother. That morning, the Marks embarked, shortly driving near Hebron on their way to Jerusalem on July 1, 2016. 

A car overtook theirs and sprayed the Marks with machine gun fire, killing Rabbi Mark, who was driving. Mrs. Mark was shot through her eye, with the bullet entering her brain causing significant damage. The children, Tehila and Pedaya, were both injured, Tehila having been shot in the stomach. The car flipped and skidded to a stop. In the momentary calm, the children saw their parents suspended by their seat belts from the car ceiling, not moving, believing them both to be dead and assuming they were next.

One of the terrorists exited the vehicle and walked over to the Mark’s car, which was sitting idle in the road. Before they could further hurt the family, the terrorists heard the sound of others approaching, leading them to flee, with one remarking to the other that he regretted leaving before the job was complete.

An unknown Palestinian man and his wife, a doctor, came across the scene and managed to pry the doors of the car open. The wife worked to stop the bleeding from Tehila’s wound, while the man called an ambulance. He hugged Pedaya and gave him water as they both tried to keep the children calm until an ambulance arrived. 

While foreign states and their political subdivisions are presumptively immune from suit based on a lack of jurisdiction of the American courts, at the time of the attack, Sudan was considered a state sponsor of terrorism, which meant it could be sued under the terrorism exception of the Foreign Sovereign Immunities Act (FSIA). The exceptions allows for American jurisdiction over the terrorist states, allowing suit against them,  and the potential for damages to be awarded when such suit is based on personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency (28 U.S.C.  1605A).

Based on this exception, on October 20, 2020, with the assistance and support of Dr. Engelberg, the Marks filed suit against the Republic of Sudan for their support of Hamas which included financial support, specialized and professional military training for the planning and execution of terrorist attacks, training bases and military facilities in which terrorist training was provided to Hamas and its operatives, safe haven and refuge from capture for Hamas leaders and operatives, means of electronic communication, financial services, including banking and wire transfer services, and means of transportation. Sudan also enabled Hamas to manufacture and stockpile weapons in its territory, and assisted and facilitated the transportation of weapons. (Mark v. Republic of the Sudan, 1:20-cv-03022 (TNM) , Doc. 20)

Ten days later, the US and Sudan signed the Claims Settlement Agreement (CSA) with the goal of settling all claims brought by U.S. nationals against Sudan and barring any further action in exchange for $335 million. 

In December 2020, the Sudan Claims Resolution Act (“SCRA”) passed in Congress, which authorized $150 million for those that were injured in the US Embassy bombings in Sudan and later became U.S. citizens and restored sovereign immunity to Sudan going forward. 

In February 2021, the CSA and SCRA were in full force, with all elements complied with.

Sudan was served with Mark’s complaint in March 2021. 

In response to the Mark’s Complaint, Sudan filed a Motion to dismiss based on their newly acquired sovereign immunity. 

The United States put their position in support of Sudan on the record. 

In response, Mark contends that the CSA and SCRA violate their constitutional rights to equal protection under the law and requests that the Court declare them unconstitutional.  There is a carve-out exception in both the CSA and SCRA for certain terrorist victims,  while there is no provision for the victims of Hamas.  The inclusion of certain terrorist victims, yet the exclusion of Marks and other Hamas victims is arbitrary and capricious.

While the fight to hold Sudan responsible for funding Hamas continues, the Mark family successfully pursued a judgment by default against Iran on September 8, 2022. 

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