In re Terrorist Attacks on September 11, 2001 (Saudi Joint Relief Comm.
714 F.3d 109
| 2d Cir. | 2013Background
- Plaintiffs seek damages under ATA, ATS, TVPA, and common law for the 9/11 attacks and related injuries and losses.
- District Court granted judgment for 76 defendants, including on FSIA grounds, dismissing SJRC and SRC.
- SJRC and SRC argue immunity under FSIA, with noncommercial tort exception as the possible exception.
- FSIA generally immunizes foreign states/instrumentalities unless exceptions apply, including the noncommercial tort exception (1605(a)(5)).
- Earlier circuit decisions (In re Terrorist Attacks III) held noncommercial tort exception could not apply to terrorism-related claims; later Doe v. Bin Laden altered the interpretive landscape by permitting a terrorism-based basis to augment jurisdiction.
- The court concludes the alleged torts occurred outside the United States, so the noncommercial tort exception does not apply and there is no jurisdiction over SJRC or SRC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the FSIA noncommercial tort exception apply? | Plaintiffs argue the injuries in the US connect to SJRC/SRC actions abroad, satisfying 1605(a)(5). | SJRC/SRC contend the entire tort occurred abroad and the discretionary function exclusion/applicable causation defeat the exception. | No; entire tort occurred outside US, so exception does not apply. |
| Does Doe v. Bin Laden change the governing basis for jurisdiction to allow the case to proceed against SJRC/SRC? | Doe permits terrorism-based jurisdiction augmenting noncommercial tort jurisdiction. | Doe does not render noncommercial tort exception applicable here; no US-tort occurred. | Doe overruled the narrow limitation but does not create jurisdiction where entire tort is abroad. |
| Should the court remand for further district court consideration based on FSIA reasoning? | Plaintiffs request remand to permit discovery and reconsideration. | Remand would delay and is unnecessary where no threshold showing exists. | Remand unnecessary; affirm on alternative basis that no jurisdiction exists due to entire tort abroad. |
Key Cases Cited
- Amerada Hess Shipping Corp. v. Argentina, 488 U.S. 428 (U.S. 1989) (establishes that noncommercial tort exception covers only torts within US territorial jurisdiction)
- Cabiri v. Government of Ghana, 165 F.3d 193 (2d Cir. 1999) (articulates the 'entire tort' rule for FSIA noncommercial tort exception)
- In re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2d Cir. 2008) (held noncommercial tort exception could not apply to terrorism claims (alternative basis later superseded by Doe))
- Doe v. Bin Laden, 663 F.3d 64 (2d Cir. 2011) (overruled to permit terrorism-based jurisdiction to augment noncommercial tort jurisdiction)
- USAA Cas. Ins. Co. v. Permanent Mission of Namibia, 681 F.3d 103 (2d Cir. 2012) (discretionary function exclusion framework for FSIA exceptions)