Doe v. Bin Laden, Docket No. 09–4958–cv.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtPER CURIAM.
Citation663 F.3d 64
PartiesJohn DOE, in his capacity as the executor of the estate of Jane Doe, in his personal capacity, and as the personal representative of Jane Doe, Plaintiff–Appellee, v. Usama BIN LADEN, et al., Defendants,Islamic Emirate of Afghanistan, also known as Islamic State of Afghanistan, Defendant–Appellant.
Docket NumberDocket No. 09–4958–cv.
Decision Date07 November 2011

663 F.3d 64

John DOE, in his capacity as the executor of the estate of Jane Doe, in his personal capacity, and as the personal representative of Jane Doe, Plaintiff–Appellee,
v.
Usama BIN LADEN, et al., Defendants,Islamic Emirate of Afghanistan, also known as Islamic State of Afghanistan, Defendant–Appellant.

Docket No. 09–4958–cv.

United States Court of Appeals, Second Circuit.

Argued: Oct. 15, 2010.Decided: Nov. 7, 2011.


[663 F.3d 64]

Paul J. Orfanedes, Judicial Watch, Inc., Washington, D.C., for Plaintiff–Appellee.

[663 F.3d 65]

Stanley McDermott, III, DLA Piper LLP (David S. Wenger, on the brief), New York, NY, for Defendant–Appellant.

Before: KEARSE, CALABRESI, and WESLEY, Circuit Judges.

PER CURIAM.

Defendant–Appellant Afghanistan appeals from an order of the United States District Court for the District of Columbia denying without prejudice its motion to vacate entry of default and to dismiss the complaint. For the reasons explained below, we agree with the district court that Plaintiff–Appellee John Doe's suit is properly considered under the noncommercial tort exception to foreign sovereign immunity provided by 28 U.S.C. § 1605(a)(5). Because factual issues persist with respect to whether the Taliban's actions in allegedly agreeing to facilitate the attacks of September 11, 2001, are properly considered to be the action of Afghanistan and as to whether any such actions were “discretionary” under § 1605(a)(5)(A), we remand the case for jurisdictional discovery as requested by Afghanistan in the district court.

Background

In January 2002, Plaintiff–Appellee John Doe 1 filed suit in the United States District Court for the District of Columbia, in his role as executor of the estate and personal representative of his wife Jane Doe, who perished in the terrorist attacks of September 11, 2001, as well as in his individual capacity. His complaint brought claims, arising from the events of that infamous day, of assault and battery, false imprisonment, intentional infliction of emotional distress, conspiracy, wrongful death and violation of the Anti–Terrorism Act, 18 U.S.C. § 2333.

On the conspiracy and wrongful death counts, Doe named among the defendants the nation of Afghanistan. He asserted subject matter jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330, 1602 et seq., which provides subject matter jurisdiction for lawsuits against foreign governments only when one of several enumerated exceptions applies. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (noting that the FSIA is the “sole basis for obtaining jurisdiction over a foreign state” in U.S. courts). Doe rested his complaint against Afghanistan on § 1605(a)(5), known as the noncommercial tort exception.

Initially, Afghanistan did not respond to the suit, and in January 2003 the clerk of the district court entered a default against it. In February 2004, Afghanistan moved to vacate the entry of default and to dismiss the complaint against it for lack of subject matter jurisdiction. It argued that claims like Doe's, predicated on terrorist acts, can only be brought under the terrorism exception, § 1605A. That exception is not available against Afghanistan, all agree, because the State Department has not designated Afghanistan as a state sponsor of terrorism.2

In September 2008, the district court denied without prejudice the motion to

[663 F.3d 66]

vacate and dismiss, concluding that Doe's suit was properly cognizable under the noncommercial tort exception rather than the terrorism exception. The court concluded, however, that a definitive ruling on the existence of subject matter jurisdiction could not yet be made because two factual disputes remained: (a) whether the Taliban acted as the nation of Afghanistan when it allegedly entered the conspiracy alleged in the complaint and (b) whether any such action was “discretionary” within the meaning of § 1605(a)(5)(A). Doe v. Bin Laden, 580 F.Supp.2d 93, 99 (D.D.C.2008). The court therefore directed the parties to prepare for jurisdictional discovery, as Afghanistan had requested if its motion to dismiss were denied.

But rather than proceed with discovery, Afghanistan appealed the denial of its motion to the Court of Appeals for the District of Columbia Circuit. In November 2009, that court transferred the appeal and all pending motions to this Court. Doe v. Bin–Laden, No. 08–7117 (D.C.Cir. Nov. 24, 2009) (transferring the case under 28 U.S.C. § 1407, which governs the coordination of multi-district litigation).

Discussion

“A district court's decision regarding subject matter jurisdiction under the FSIA is reviewed for clear error as to factual findings and de novo as to legal conclusions.” Swarna v. Al–Awadi, 622 F.3d 123, 133 (2d Cir.2010). The question before us now is purely a legal one: whether the noncommercial tort exception can be a basis for a suit arising from the terrorist acts of September 11, 2001.

As with any question of statutory interpretation, we start with the text. Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir.2010) (“[S]tatutory analysis necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there.” (internal quotation marks omitted)). The text of the noncommercial tort exception of the FSIA provides jurisdiction for cases that (1) are noncommercial, (2) seek “money damages,” (3) for “personal injury or death, or damage to or loss of property,” (4) that “occur[ed] in the United States,” and (5) that was “caused by the tortious act,” (6) “of [a defendant] foreign state or [its] employee ... acting within the scope of his ... employment,” unless (7) the claim is based on a discretionary act or (8) it is for “malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 1605(a)(5).3 There is no question that the first five

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requirements are present and that the last exclusion does not apply. See Doe, 580 F.Supp.2d at 99. Specifically, there is no doubt that the terrorist acts giving rise to the harms at issue—aircraft sabotage, extrajudicial killing, and conspiracy to support the same—are all torts. Additionally, the complaint alleged nondiscretionary acts by employees of the foreign state within the scope of their employment. Compl. ¶¶ 21, 60–61. Therefore, at the pleading stage, the claim appears to fit within the noncommercial tort exception.

Afghanistan, however, urges us to shun this “plain language” reading. It argues for a narrow reading of the noncommercial tort exception under which the later-added 4 “terrorism exception” acts not as an additional basis of jurisdiction but as an implicit limitation on the already-existing jurisdiction conferred by the noncommercial tort exception. Allowing the noncommercial tort exception to govern would, the argument goes, let the plaintiffs “shoehorn a claim properly brought under one exception into another,” which would violate the longstanding judicial tradition in FSIA cases. In re Terrorist Attacks on September 11, 2001, 538 F.3d 71, 89 (2d Cir.2008), abrogated in part on other grounds by Samantar v. Yousuf, ––– U.S. ––––, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010).

But this conclusion can only be reached if one concludes that these claims “properly” belong under the terrorism exception and no other. And that conclusion, in turn, relies on the belief that to hold otherwise would leave the terrorism exception impotent because then no case would exist that is both (a) within the ambit of the terrorism exception and (b) not “otherwise covered by [the FSIA].” 28 U.S.C. § 1605A. That is, Afghanistan's argument for the narrow reading of the noncommercial tort exception rests on the factual premise that there exists no set of cases covered by the terrorism exception that fall outside the noncommercial tort exception. This premise is, however, demonstrably false.

To begin with, the very language of the statute undercuts the premise. The noncommercial tort exception applies only to injuries or damages “occurring in the United States.28 U.S.C. § 1605(a)(5) (emphasis added). Accordingly, the noncommercial tort exception does not cover a wrongful death suit brought against a foreign state as the result of a bombing abroad. E.g., Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239, 246 (2d Cir.1996) (affirming dismissal of a case against Libya for the bombing of Pan Am flight 103 for lack of subject matter jurisdiction, in part, because the bombing did not occur in the United States but over Scotland and hence could not be subject to the noncommercial tort exception). In contrast, this is precisely the type of wrong the terrorism exception encompasses: under that exception, no geographic limitation applies so long as the victim is a U.S. national, member of the U.S. armed forces, or U.S. government employee. 28 U.S.C. § 1605A(a)(2)(A)(ii).

A bombing abroad killing U.S. nationals is not only a paradigmatic example of terrorism, it is the precise—and only—example Congress cited when it originally added the terrorism exception to the FSIA.5

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The report from the House Committee on the Judiciary describes Section 804 of the Comprehensive Antiterrorism Act of 1995 6—what would become the terrorism exception to the FSIA—as “ responding to the tragedy of the...

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26 practice notes
  • Ashton v. Al Qaeda Islamic Army (In re Terrorist Attacks On Sept. 11, 2001), 03–MDL–1570(GBD)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 28 Marzo 2018
    ...the court determined that those judgments should be reopened to apply a particular set of legal rules established in Doe v. Bin Laden, 663 F.3d 64 (2d Cir. 2011), and "Congress was not free to step in and create another set of rules entirely."20 (KSA Mem. at 71.) Saudi Arabia's constitution......
  • Gill v. Arab Bank, PLC, No. 11–CV–3706.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 17 Octubre 2012
    ...of section 2331(4)(C)—limits civil recovery more broadly than the committee reports referenced above suggest. See, e.g., Doe v. Bin Laden, 663 F.3d 64, 70 (2d Cir.2011) (per curiam) (discussing the expressio unius canon). The second interpretive problem raised by the passage in the committe......
  • Gill v. Arab Bank, PLC, 11-CV-3706
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 15 Octubre 2012
    ...of section 2331(4)(C)—limits civil recovery more broadly than the committee reports referenced above suggest. See, e.g., Doe v. Bin Laden, 663 F.3d 64, 70 (2d Cir. 2011) (per curiam) (discussing the expressio unius canon). The second interpretive problem raised by the passage in the committ......
  • Upstate Citizens for Equal., Inc. v. United States, Docket Nos. 15-1688
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 9 Noviembre 2016
    ...in fact intended the IRA—including § 5—to embrace New York and tribes located there, including the Oneidas. See Doe v. Bin Laden , 663 F.3d 64, 70 (2d Cir. 2011) (applying expressio unius est exclusio alterius canon of construction in declining to read additional exceptions into statute). W......
  • Request a trial to view additional results
26 cases
  • Ashton v. Al Qaeda Islamic Army (In re Terrorist Attacks On Sept. 11, 2001), 03–MDL–1570(GBD)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 28 Marzo 2018
    ...the court determined that those judgments should be reopened to apply a particular set of legal rules established in Doe v. Bin Laden, 663 F.3d 64 (2d Cir. 2011), and "Congress was not free to step in and create another set of rules entirely."20 (KSA Mem. at 71.) Saudi Arabia's co......
  • Gill v. Arab Bank, PLC, No. 11–CV–3706.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 17 Octubre 2012
    ...of section 2331(4)(C)—limits civil recovery more broadly than the committee reports referenced above suggest. See, e.g., Doe v. Bin Laden, 663 F.3d 64, 70 (2d Cir.2011) (per curiam) (discussing the expressio unius canon). The second interpretive problem raised by the passage in the committe......
  • Gill v. Arab Bank, PLC, 11-CV-3706
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 15 Octubre 2012
    ...of section 2331(4)(C)—limits civil recovery more broadly than the committee reports referenced above suggest. See, e.g., Doe v. Bin Laden, 663 F.3d 64, 70 (2d Cir. 2011) (per curiam) (discussing the expressio unius canon). The second interpretive problem raised by the passage in the committ......
  • Upstate Citizens for Equal., Inc. v. United States, Docket Nos. 15-1688
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 9 Noviembre 2016
    ...in fact intended the IRA—including § 5—to embrace New York and tribes located there, including the Oneidas. See Doe v. Bin Laden , 663 F.3d 64, 70 (2d Cir. 2011) (applying expressio unius est exclusio alterius canon of construction in declining to read additional exceptions into statute). W......
  • Request a trial to view additional results

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