Ashton v. Al Qaeda Islamic Army (In re Terrorist Attacks On Sept. 11, 2001)
298 F. Supp. 3d 631
S.D. Ill.2018Background
- Plaintiffs (9/11 victims and survivors) allege Saudi Arabia and Saudi High Commission for Relief in Bosnia and Herzegovina (SHC) materially supported al Qaeda and thus are liable under the Justice Against Sponsors of Terrorism Act (JASTA) for the 9/11 attacks.
- Saudi Arabia and SHC moved to dismiss under the Foreign Sovereign Immunities Act (FSIA). The court previously dismissed on FSIA grounds; the Second Circuit vacated and remanded after Congress enacted JASTA.
- JASTA creates a new FSIA exception (28 U.S.C. §1605B) waiving immunity for money damages for death/injury in the U.S. caused by (1) an act of international terrorism in the U.S. and (2) a tortious act of a foreign state or its officials/employees/agents acting within scope, regardless of where the tort occurred.
- The court must assess (a) whether plaintiffs alleged tortious acts by state actors/agents within the scope of employment/agency, and (b) proximate causation linking those acts to the 9/11 attacks; proximate causation requires a substantial factor and reasonable foreseeability.
- Court finds plaintiffs’ allegations about SHC are too remote, conclusory, and temporally/geographically unrelated to 9/11; SHC’s dismissal is GRANTED.
- Court finds specific, non-frivolous allegations tying two alleged Saudi agents (Fahad al Thumairy and Omar al Bayoumi) to assistance for two hijackers (Hazmi and Mihdhar) sufficient to justify limited jurisdictional discovery into agency, scope, and causal facts; Saudi Arabia’s dismissal is DENIED as to those allegations and limited discovery is permitted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether JASTA’s new FSIA exception supplies subject-matter jurisdiction over 9/11 claims | JASTA waives immunity for foreign states whose officials/agents aided al Qaeda; plaintiffs allege material support and agency links to Saudi state | JASTA does not apply because plaintiffs fail to plead tortious acts by state actors within scope or sufficient causation; immunity remains | JASTA can supply jurisdiction if plaintiffs plausibly show tortious acts by officials/agents in scope and proximate causation; limited discovery allowed on narrow agency allegations; otherwise immunity stands |
| Whether SHC’s alleged past support for al Qaeda over decades overcomes FSIA immunity | SHC funded and hosted al Qaeda operatives; evidence found in Sarajevo office links SHC to plots | Allegations are remote in time/place and lack nonconclusory connection to 9/11; insufficient to overcome immunity | Dismissal of SHC for lack of subject-matter jurisdiction is GRANTED |
| Whether Saudi Arabia can be vicariously liable for acts of charities/instrumentalities | Charities were controlled by Saudi state, served core state functions, and functioned as arms of the state providing material support | Bancec presumption of separateness; plaintiffs’ allegations are boilerplate and insufficient to show alter-ego or day-to-day control; ordinary agency allegations are inadequate | Plaintiffs fail to rebut the presumption; charity conduct is not attributable to Saudi Arabia for JASTA purposes |
| Standard of causation under JASTA | Plaintiffs: flexible proximate-cause standard (some reasonable connection); not a strict but-for test | Defendants: JASTA requires but-for and proximate cause (rigorous causation) | Court adopts traditional proximate-cause standard used in FSIA cases: defendant’s conduct must be a substantial factor and the harm reasonably foreseeable; not strict but-for |
Key Cases Cited
- Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546 (federal courts are courts of limited jurisdiction)
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (FSIA provides exclusive basis for jurisdiction over foreign states)
- Saudi Arabia v. Nelson, 507 U.S. 349 (FSIA presumption of sovereign immunity)
- First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba (Bancec), 462 U.S. 611 (presumption of separateness for state instrumentalities; alter-ego standard)
- In re Terrorist Attacks on September 11, 2001 (Terrorist Attacks VIII), 714 F.3d 109 (burden allocation and FSIA jurisdictional principles)
- Owens v. Republic of Sudan, 864 F.3d 751 (FSIA proximate causation standard: substantial factor + foreseeability)
- Bank Markazi v. Peterson, 136 S. Ct. 1310 (Congress may alter legal standards and apply them to pending cases without violating separation of powers)
- Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (limits on Congress reopening final judgments)