In re TERRORIST ATTACKS ON SEPTEMBER 11, 2001 (Saudi Joint Relief Committee, et al.) John Patrick O‘Neill, Jr., et al., Plaintiffs-Appellants, v. Saudi Joint Relief Committee, Saudi Red Crescent Society, Defendants-Appellees.
Docket Nos. 11-3294-cv(L), 11-3407-cv, 11-3490-cv, 11-3494-cv, 11-3495-cv, 11-3496-cv, 11-3500-cv, 11-3501-cv, 11-3502-cv, 11-3503-cv, 11-3505-cv, 11-3506-cv, 11-3507-cv, 11-3508-cv, 11-3509-cv, 11-3510-cv, 11-3511-cv, 12-949-cv, 12-1457-cv, 12-1458-cv, 12-1459-cv.
United States Court of Appeals, Second Circuit.
Argued On: Dec. 4, 2012. Decided: April 16, 2013.
714 F.3d 109
* The multiple appeals arising from the underlying multi-district litigation have been grouped under the case name “In re Terrorist Attacks on September 11, 2001.” This opinion, however, only addresses the claims against two defendants—the Saudi Joint Relief Committee (“SJRC“) and the Saudi Red Crescent Society (“SRC“)—dismissed by the District Court pursuant to the Foreign Sovereign Immunities Act. Accordingly, the caption above refers only to these two defendants. For the purpose of the disposition of the claims against these two defendants, the Clerk of Court is directed to amend the caption to conform to the listing of the parties shown above.
On February 9, 2012, the parties entered into a stipulation withdrawing the appeals with regard to twenty-seven defendants. Case No. 11-3294-cv(L), Dkt. No. 328. To the extent that the caption in this case includes any defendants listed in that stipulation, the Clerk of Court is directed amend the caption accordingly.
Michael K. Kellogg (Gregory G. Rapawy, Brendan Crimmins, William J. Rinner, on the brief), Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, Washington, DC, for Defendant-Appellee Saudi Joint Relief Committee.
Lynne Bernabei, Alan R. Kabat, Bernabei & Wachtel, PLLC, Washington, DC, for Defendant-Appellee Saudi Red Crescent Society.1
JOSÉ A. CABRANES, Circuit Judge:
These appeals involve claims by families and estates of the victims of the September 11, 2001 terrorist attacks, individuals injured by the attacks, and various commercial entities that incurred damages and losses as a result of the attacks (jointly, “plaintiffs“). Before us are claims under the Anti-Terrorism Act (“ATA“),
Due to the logistical challenges associated with these appeals, we address the various issues they raise in separate decisions. This opinion involves only two defendants that were dismissed from this action pursuant to the FSIA—the Saudi Joint Relief Committee (“SJRC“) and the Saudi Red Crescent Society (“SRC“). In separate opinions filed today, we address the claims against the defendants dismissed by the District Court for lack of personal jurisdiction, as well as the claims against the defendants dismissed by the District Court for failure to state a claim upon which relief can be granted.
Generally, the FSIA confers upon foreign states and their instrumentalities immunity from the jurisdiction of the courts of the United States. See
BACKGROUND
The SJRC and the SRC purportedly are humanitarian relief organizations established and sponsored by the Kingdom of Saudi Arabia. In 2004 and 2005, after being named as defendants for allegedly providing financial support to Osama Bin Laden and al Qaeda, the SJRC and the SRC filed motions to dismiss the action,
** The Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.
Plaintiffs argued that the FSIA‘s noncommercial tort exception,
In 2008, while the claims against the SJRC and the SRC were pending before the District Court, we affirmed the District Court‘s dismissal of certain similarly-situated defendants in this multi-district litigation—namely, the Kingdom of Saudi Arabia and the Saudi High Commission. See In re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2d Cir. 2008) (”In re Terrorist Attacks III.“) The District Court had dismissed the claims against the Kingdom of Saudi Arabia and the Saudi High Commission pursuant to the FSIA, see In re Terrorist Attacks on September 11, 2001, 392 F. Supp. 2d 539, 555 (S.D.N.Y. 2005) (”In re Terrorist Attacks II“); In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 765, 803-04 (S.D.N.Y. 2005) (”In re Terrorist Attacks I“), concluding that their immunity from suit had been preserved by the “discretionary function” exclusion to the FSIA‘s noncommercial tort exception;3 the “discretionary function” exclusion provides that a foreign sovereign retains immunity under the FSIA even if its act or omission is deemed to be tortious if the act is “based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion [is] abused,”
In In re Terrorist Attacks III, we affirmed the District Court‘s dismissal of the claims asserted against the Kingdom of Saudi Arabia and the Saudi High Commission, but on an alternative basis. See 538 F.3d at 89-90. In particular, we held that
In November 2011, however, we decided Doe v. Bin Laden, 663 F.3d 64 (2d Cir. 2011), which revisited the issue of whether the FSIA‘s noncommercial tort exception and terrorism exception are mutually exclusive. Through use of this Court‘s “mini-en banc” procedure, see Shipping Corp. of India v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 & n. 9 (2d Cir. 2009) (describing the “mini-en banc” procedure), we partially overruled our judgment in In re Terrorist Attacks III, holding that “the terrorism exception, rather than limiting the jurisdiction conferred by the noncommercial tort exception, provides an additional basis for jurisdiction,” Doe, 663 F.3d at 70.
Following our decision in Doe, plaintiffs now argue (1) that the District Court erred by dismissing the SJRC and the SRC for want of jurisdiction pursuant to the FSIA, and (2) that we should vacate the District Court‘s judgment with regard to the SJRC and the SRC and remand that portion of this action to the District Court for further proceedings, including a regular course of discovery. The SJRC and the SRC do not dispute that Doe overruled the stated basis for the District Court‘s decision to dismiss them from this lawsuit or that the District Court‘s judgment dismissing the claims against them must be modified or vacated insofar as it relies on the In re Terrorist Attacks III holding. They argue, however, that the judgment of the District Court can and should be affirmed because FSIA‘s noncommercial tort exception does not apply to their actions for the three reasons initially outlined in their 2004 and 2005 motions to dismiss. See Dist. Ct. Dkt. Nos. 631-1, 1175 (arguing that the FSIA‘s noncommercial tort exception does not apply because: (1) plaintiffs fail to allege that the “entire tort” occurred in the United States; (2) the “discretionary function” exclusion to the FSIA‘s noncommercial tort exception applies; and (3) plaintiffs do not plead the necessary causation).
DISCUSSION
A. Standard of Review
“The standard of review applicable to district court decisions regarding subject matter jurisdiction under the FSIA is clear error for factual findings and de novo for legal conclusions,” U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 150-51 (2d Cir. 2001) (citing Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 930 (2d Cir. 1998)), “accepting all material facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff[s‘] favor,” Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012).
As noted, there is no dispute that the District Court‘s stated reason for dismiss-
B. Jurisdiction
“It is well settled that the only source of subject matter jurisdiction over a foreign sovereign [or its instrumentalities] in the courts of the United States is [the FSIA].” Garb v. Republic of Poland, 440 F.3d 579, 581 (2d Cir. 2006). The parties do not dispute that the SJRC and the SRC qualify as instrumentalities of a foreign sovereign within the meaning of the FSIA. See
“Once the defendant presents a prima facie case that it is a foreign sovereign [or an instrumentality of a foreign sovereign], the plaintiff has the burden of going forward with evidence showing that, under exceptions to the FSIA, immunity should not be granted, although the ultimate burden of persuasion remains with the alleged foreign sovereign.” Cargill Int‘l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993) (citation omitted). The FSIA thus establishes a general rule of immunity from the jurisdiction of the courts in the United States, except as provided by certain statutory exceptions.6 See
C. The Noncommercial Tort Exception to the FSIA and the “Entire Tort” Rule
As noted, the FSIA‘s noncommercial tort exception provides:
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—... in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.
After Amerada Hess Shipping Corporation was decided, we described and explained the “entire tort” rule in Cabiri v. Government of Ghana, 165 F.3d 193 (2d Cir. 1999), noting that “[a]lthough [the words of the statute are] cast in terms that may be read to require that only the injury rather than the tortious acts occur in the United States, the Supreme Court has held that this exception ‘covers only torts occurring within the territorial jurisdiction of the United States.‘” Id. at 200 n. 3 (quoting Amerada Hess Shipping Corp., 488 U.S. at 441). At least two of our sister circuits have applied the “entire tort” rule as well. See O‘Bryan v. Holy See, 556 F.3d 361, 382 (6th Cir. 2009) (“We join the Second and D.C. Circuits in concluding that in order to apply the tortious act exception, the ‘entire tort’ must occur in the United States. This position finds support in the Supreme Court‘s decision in Amerada Hess Shipping....“); Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1525 (D.C. Cir. 1984) (“Even if the [alleged tort] had the effect of retroactively rendering the prior acts on United States soil tortious, at the very least the entire tort would not have occurred here....“).8
Here, plaintiffs do not claim that the “torts” allegedly committed by the SJRC and the SRC occurred in the United States. They assert instead that the injuries and damage caused by the September 11, 2001 attacks in the United States were related to, and a result of, the actions taken by the SJRC and the SRC abroad—namely, allegedly contributing financial and other resources to support Osama Bin Laden and al Qaeda. Plaintiffs’ FSIA Reply Br. 9. But such allegations are insufficient to satisfy the requirements of the FSIA‘s noncommercial tort exception, and
Even though plaintiffs assert that “[t]he September 11th Attack was a direct, intended and foreseeable product of participation [by the SJRC and the SRC] in al Qaida‘s jihadist campaign,” Joint App‘x 3809-10, they do not allege that the SJRC or the SRC participated in the September 11, 2001 attacks or committed any tortious act in the United States. Nor do plaintiffs allege that any employees of the SJRC and SRC—or anyone controlled by these entities—committed a tortious act in the United States. Rather, they argue that the SJRC and the SRC can be held liable simply because “personal injury, death or property damage occur[red] in the United States.” Plaintiffs’ FSIA Reply Br. 3. But such allegations are not enough; plaintiffs do not allege that the SJRC or the SRC committed a single tortious act in the United States. Put another way, plaintiffs attempt to hold the SJRC and the SRC liable for providing funding and other aid to entities that purportedly supported al Qaeda, but the actions allegedly taken by the SJRC and the SRC in this regard took place completely outside the United States. As all of the tortious conduct allegedly committed by the SJRC and the SRC occurred abroad,10 plaintiffs’ allegations cannot satisfy the noncommercial tort exception to the immunity conferred by the FSIA, and therefore, courts in the United States lack jurisdiction to consider these claims against the SJRC and the SRC.11
Plaintiffs argue, alternatively, that even if we conclude that the FSIA bars this action against the SJRC and the SRC, we nevertheless should remand this action so that the District Court can consider these arguments in the first instance. See Plaintiffs’ FSIA Reply Br. 4-5 (citing Farricelli v. Holbrook, 215 F.3d 241, 246 (2d Cir. 2000)). We disagree.
First, as noted above, it is well established that we can affirm the dismissal of a complaint on any basis supported by the record. See, e.g., Leecan, 893 F.2d at 1439. Second, a central purpose of the FSIA is to “enable a foreign government to obtain an early dismissal when the substance of the claim against it does not support jurisdiction.” Robinson v. Gov‘t of Malay., 269 F.3d 133, 146 (2d Cir. 2001). As no relevant facts are in dispute, remanding the matter to the District Court at this juncture of a prolonged litigation would simply delay the inevitable and keep the SJRC and the SRC in this lawsuit longer than appropriate. Third, we recently concluded that a district court‘s judgment should be affirmed on an “alternative ground” when a plaintiff “fail[s] to make the threshold showing necessary to invoke” an exception to the FSIA. Mortimer Off Shore Servs., Ltd. v. Fed. Republic of Ger., 615 F.3d 97, 113 (2d Cir. 2010). As plaintiffs have failed to make a thresh-
CONCLUSION
To summarize:
- The District Court‘s judgment, insofar as it dismissed claims against the SJRC and the SRC pursuant to our decision in In re Terrorist Attacks on September 11, 2001, 538 F.3d 71, 89-90 (2d Cir. 2008) (holding that the FSIA‘s noncommercial tort exception could not apply to claims based on alleged involvement in terrorist activities), was error in light of our supervening decision in Doe v. Bin Laden, 663 F.3d 64, 70 (2d Cir. 2011) (holding that the FSIA‘s terrorism exception does not limit the jurisdiction conferred by the noncommercial tort exception, but rather, provides an additional basis for jurisdiction).
- Despite the fact that the basis for the District Court‘s dismissal of the SJRC and the SRC is no longer good law, we may affirm the judgment of the District Court on any ground that finds support in the record, and we conclude that the record establishes that the alleged “torts” committed by the SJRC and the SRC occurred outside the United States.
- Because the alleged “torts” committed by the SJRC and the SRC occurred outside the United States, the noncommercial tort exception to the immunity from suit conferred by the Foreign Sovereign Immunities Act does not apply in those circumstances pursuant to the so-called “entire tort” rule, and thus, we lack jurisdiction to consider plaintiffs’ claims against the SJRC and the SRC.
For these reasons, we AFFIRM the judgment of the District Court insofar as it dismissed plaintiffs’ claims against the SJRC and the SRC pursuant to the Foreign Sovereign Immunities Act for want of jurisdiction.
JOSÉ A. CABRANES
UNITED STATES CIRCUIT JUDGE