Doe v. Bin Laden
2011 U.S. App. LEXIS 22516
| 2d Cir. | 2011Background
- Plaintiff Doe filed in January 2002 in the District of Columbia, alleging state-sponsored terrorism claims against Afghanistan under the FSIA noncommercial tort exception (§ 1605(a)(5)) related to 9/11 injuries and deaths.
- A default was entered against Afghanistan in January 2003; Afghanistan moved to vacate default and dismiss in February 2004 arguing claims fall under the terrorism exception (§ 1605A) not available here because Afghanistan is not designated a state sponsor of terrorism.
- In September 2008 the district court denied the motion to vacate/dismiss without prejudice, ruling the suit was properly cognizable under the noncommercial tort exception, but left factual disputes unresolved about attribution to Afghanistan and whether actions were discretionary.
- The district court directed jurisdictional discovery; Afghanistan appealed, and the case was transferred to the Second Circuit via a multi-court transfer process.
- The Second Circuit holds the noncommercial tort exception can provide jurisdiction and remands for limited jurisdictional discovery to resolve whether Taliban actions were attributable to Afghanistan and discretionary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether noncommercial tort exception can govern 9/11-related claims | Doe: noncommercial tort exception covers the conduct at issue. | Afghanistan: restricts coverage; terrorism exception is needed and narrower. | Noncommercial tort exception may apply; terrorism exception provides additional jurisdiction. |
| Whether the terrorism exception narrows the noncommercial tort exception | Doe argues text allows both exceptions to apply where appropriate. | Afghanistan argues terrorism exception implicitly limits noncommercial tort exception. | Text/history support broad reading; terrorism exception adds, not narrows, jurisdiction. |
| Whether the terrorism exception is the exclusive vehicle for such claims or coexists with the noncommercial tort exception | Doe: both exceptions serve distinct coverage. | Afghanistan: one exception should govern overlapping claims. | Terrorism exception coexists as an additional basis where not otherwise covered. |
| Whether discovery should be limited to jurisdictional questions | Discovery necessary to determine attribution and discretion. | Discovery may be necessary but should be limited to jurisdictional issues. | Limited jurisdictional discovery ordered; merits unresolved. |
| Whether the case should be remanded for further proceedings | N/A or seek progress in district court. | N/A or challenge to discovery scope. | Remanded to district court for jurisdictional discovery consistent with this opinion. |
Key Cases Cited
- Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996) (non-US occurrence lacking FSIA jurisdiction under noncommercial tort exception)
- Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989) (noncommercial tort exception applied to acts in California)
- Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980) (allowing wrongful death suit against Chile for car bombing in DC)
- Rein v. Socialist People's Libyan Arab Jamahiriya, 162 F.3d 748 (2d Cir. 1998) (terrorism exception applied to aircraft sabotage in Pan Am 103 context)
- In re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2d Cir. 2008) (treatment of overlapping FSIA exceptions prior to superseding rulings)
- Samantar v. Yousuf, 130 S. Ct. 2278 (2010) (reaffirmed limits of FSIA interpretations, some implications for overlapping claims)
- Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003) (terrorism-era jurisdictional history in Iran hostage context)
- Dobrova v. Holder, 607 F.3d 297 (2d Cir. 2010) (statutory interpretation of FSIA text and scope)